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E-Filed Document Jun 30 2016 16:14:37 2015-CA-01645 Pages: 38
2015-CA-01645
IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI
TUNICA COUNTY BOARD OF SUPERVISORS
VERSUS
HWCC-TUNICA, LLC
APPELLANT
APPELLEE
APPEAL FROM THE CIRCUIT COURT OF TUNICA COUNTY, MISSISSIPPI
BRIEF OF APPELLANT TUNICA COUNTY BOARD OF SUPERVISORS
ORAL ARGUMENT REQUESTED
MELVIN D. MILLER, II (MSB 103835) MEL VIN D. MILLER LAW FIRM, PLLC
1409 Shady Lane Clarksdale, MS 3 8614 Telephone: ( 662) 402-1396 Facsimile: ( 662) 621-9063 [email protected]
JULIAN D. MILLER (MSB 104377) BUTLER SNOW LLP 1020 Highland Colony Pkwy., Suite 1400 Post Office Box 6010 Ridgeland, MS 39158 Telephone: (601) 948-5711 Facsimile: (601) 985-4500 [email protected]
COUNSEL FOR APPELLANT TUNICA COUNTY BOARD OF SUPERVISORS
2015-CA-01645
IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI
TUNICA COUNTY BOARD OF SUPERVISORS
VERSUS
HWCC-TUNICA, LLC
APPEAL FROM THE
APPELLANT
APPELLEE
CIRCUIT COURT OF TUNICA COUNTY, MISSISSIPPI
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed persons
have an interest in the outcome of this case. These representations are made in
order that the justices of the Supreme Court and/or the judges of the Court of
Appeals may evaluate possible disqualification or recusal:
1. Tunica County Board of Supervisors, appellant.
2. Julian D. Miller, counsel for appellant.
3. Melvin D. Miller, II, counsel for appellant.
4. HWCC-Tunica, LLC, appellee.
5. A. Thomas Tucker, III, counsel for appellee.
6. The Honorable Charles E. Webster, Tunica County Circuit Court Judge.
THIS 30th day of June, 2016.
Isl Julian D. Miller Julian D. Miller Counsel of Record
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ........................................................ i
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES ................................................................................... iii
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENT OF ISSUES ....................................................................................... 2
STATEMENT OF THE CASE ................................................................................. 3
SUMMARY OF THE ARGUMENT ....................................................................... 9
ARGUMENT .......................................................................................................... 11
I. The Circuit Court lacked jurisdiction over the tax levy appeal, as HWCC-Tunica failed to properly perfect the appeal pursuant to Miss. Code Ann. § 11-51-77 ................................ 11
II. The Circuit Court also erred in determining that the ad valorem tax increase was improperly levied and collected due to Tunica County's failure to comply with the mandatory advertising requirements pursuant to Miss. Code Ann. § 27-39-203 (2)(a) ............................................................ 21
CONCLUSION ....................................................................................................... 28
CERTIFICATE OF SERVICE ............................................................................... 31
11
TABLE OF AUTHORITIES
Cases
5K Farms, Inc. v. Miss. Dep'tof Revenue, 94 So. 3d 221 (Miss. 2012) ....................................... 14
Board ofSup'rs v. Callender, 128 Miss. 159 (1921) .................................................................... 25
Board ofSup'rs v. Self, 156 Miss. 273 (1930) .............................................................................. 25
Board of Supervisors v. Hawkins, 192 Miss. 330 (1942) ............................................................. 25
Burke, Sherriff and Tax Collector v. Leggett, et. al., 79 So. 843 (Miss. 1918) ............................ 28
Chickasaw County v. Gulf, Mobile & Ohio R. Co., 15 So. 2d 348 (Miss. 1943) ......................... 23
City of Jackson v. McCardle 's Estate, 189 Miss. 781, 198 So. 736 (1940) ................................. 19
City of Jackson v. Varia, Inc., 241 Miss. 705, 133 So. 2d 16 (Miss. 1961) ................................. 15
Darden v. Bd. of Supervisors, 169 So. 3d 913 (Miss. Ct. App. 2014) .......................................... 24
Falco Lime, Inc. v. Mayor and Aldermen of the City of Vicksburg, 836 So. 2d 711 (Miss. 2002)
··················································································································································· 26
Gulf & Ship Island R. Co. v. Harrison County, 4 So. 2d 717 (Miss. 1941) ................................. 27
Gulley v. Lumbermen's Mut. Cas. Co., 176 Miss. 388, 166 So. 541, 168 So. 609 (1936) ........... 17
Jackson State Univ. v. Upsilon Epsilon Chapter of Omega Psi Phi Fraternity, Inc., 952 So. 2d
184 (Miss. 2007) ....................................................................................................................... 13
Jennings v. Board ofSup'rs of Coahoma County, 79 Miss. 523, 31 So. 107 (Miss. 1902) .......... 12
Khurana v. Miss. Dep 't of Revenue, 85 So. 3d 851 (Miss. 2012) ........................................... 14, 20
Ladner v. Harrison County Bd. ofSup'rs, 793 So. 2d 637 (Miss. 2001) ..................................... 19
Lenoir v. Madison County, 641 So. 2d 1124 (Miss. 1994) ............................................... 12, 15, 18
Lucas v. Williamson, 852 So. 2d 67 (,5) (Miss. Ct. App. 2003) .................................................. 15
Miss. Dep'tofRevenue v. AT&T Corp., 101 So. 3d 1139 (,24) (Miss. 2012) ........... 13, 14, 17, 18
111
Miss. State Pers. Bd. v. Armstrong, 454 So. 2d 912 (Miss. 1984) ................................................ 13
Mississippi Gaming Comm'n v. Baker, 755 So. 2d 1129 (,11) (Miss. Ct. App. 1999) ................ 27
Perez v. Garden Isle Cmty. Ass 'n, 882 So. 2d 217 (Miss. 2004) .................................................. 19
Price v. Price, 202 Miss. 268, 32 So. 2d 124 (Miss. 1947) .................................................... 17, 20
Rebelwood, Ltd. v. Hinds County, 544 So. 2d 1356 (Miss. 1989) ................................................ 18
Reed v. Clark's Swimming Pools, Inc., 1997 Del. C.P. LEXIS 27, (Del. C.P. 1997) ................... 17
Reeves v. City of Crystal Springs, 54 So. 3d 322 (Miss. Ct. App. 2011) ..................................... 18
Rogers v. Holder, 636 So. 2d 645 (Miss. 1994) ........................................................................... 23
Shipman v. North Panola Consol. Sch. Dist., 641 So. 2d 1106 (Miss. 1994) ............................. 23
State Tax Comm'n v. ANR Pipeline Co., 806 So. 2d 1081 (Miss. 2001) ...................................... 18
Thompson v. Anding, 370 So. 2d 1335 (Miss. 1979) .................................................................... 12
Wilkinson County Bd. of Supervisors v. Quality Farms, Inc., 767 So. 2d 1007 (Miss. 2000) ...... 19
Williams v. Board ofSupvrs., 108 Miss. 746, 67 So. 186 (1915) ................................................... 1
Zimmerman v. Pontotoc County Bd. of Supervisors, 1998 Miss. LEXIS 453, (Miss. Sept. 17,
1998) ................................................................................................................................... 12, 13
Statutes
Miss. Code Ann.§ ll-3-3 ............................................................................................................... l
Miss. Code Ann. § 11-51-75 .................................................................................................. passim
Miss. Code Ann. § 11-51-77 .................................................................................................. passim
Miss. Code Ann. § 19-11-71 ......................................................................................................... 27
Miss. Code Ann. § 27-39-203 ................................................................................................ passim
Miss. Code Ann. § 27-39-303 ....................................................................................................... 21
Miss. Code Ann. § 27-39-321 ....................................................................................................... 27
IV
Miss. Code Ann. § 27-73-7 ........................................................................................................... 24
Other Authorities
Opinion No. 97-0022, Austin, January 24, 1997, 1997 WL 47285 (Miss. A.G.) ......................... 22
Opinion No. 98-0341, Meyer, June 19, 1998, 1998 WL 382974 (Miss. A.G.) ............................ 25
Rules
Miss. R. App. P. 16 ......................................................................................................................... 1
Miss. R. App. P. 34 ......................................................................................................................... 1
v
STATEMENT REGARDING ORAL ARGUMENT
Appellant, Tunica County Board of Supervisors, respectfully requests an
oral argument pursuant to Rule 34(b) of the Mississippi Rules of Appellate
Procedure. The issue in this appeal involves a decision by the board of supervisors
to increase its ad valorem tax levy. Particularly, the issue involves the application
of jurisdictional requirements for appeals of county board decisions involving tax
matters, as well as the proper statutory remedy for failure to meet the notice
requirements for advertising of tax levy increases. Because this issue involves
questions of statutory construction related to county tax law, Appellant believes
that oral argument is necessary to clarify any questions the Court may have in
regards to how the law applies in this matter. Further, because this appeal involves
a county tax claim of great public interest and importance, this appeal would
warrant priority calendaring and prompt or ultimate determination by the
Mississippi Supreme Court. See Miss. Code Ann.§ 11-3-3 (2016); Williams v.
Board of Supvrs., 108 Miss. 746, 67 So. 186 (1915) (appeal from orders of board
of tax supervisors levying taxes will be advanced); see also Miss. R. App. P. 16
(d)(2).
1
STATEMENT OF ISSUES
1. The central issue in this case is whether a circuit court can
retroactively waive a statutory requirement to perfect an appeal from a county
board decision raising ad valorem taxes after the Appellant has failed to meet the
statutory requirements to give the circuit court jurisdiction over the matter.
2. In the alternative, whether the failure to meet the statutory notice
requirements for a county to increase its tax levy invalidates the tax levy and
requires the county to refund Appellee as well as all county taxpayers.
2
STATEMENT OF THE CASE
Proceedings. This case arises out of a decision by Tunica County Board of
Supervisors ("Appellant") to increase their ad valorem tax levy for their Fiscal
Year 2015 budget.
Hollywood Casino, or HWCC-Tunica, LLC ("Appellee"), was the only
Tunica County taxpayer that challenged the decision. It filed a Bill of
Exceptions/Notice of Appeal, pursuant to Miss. Code Ann.§ 11-51-75, against
Appellant on or about October 10, 2014, R. Vol. 1, p. 7, via hand delivery, R. Vol.
10, p. 15. The Bill ofExceptions challenged the decision of the board based on
nine different exceptions that included both alleged statutory and constitutional
violations as well claims of the decision being arbitrary and capricious and not
supported by substantial evidence. R. Vol. 1, p. 11-13. The Bill of Exceptions was
not signed by the President of the Board of Supervisors of Tunica County. R. Vol.
1, p. 14; Vol. 10, pp. 1367-1371.
Appellant filed its Answer denying the averments made in the Appellee's
Bill of Exceptions. R. Vol. 4, pp. 544-546. In its memorandum brief, Appellee
consolidated its nine claimed exceptions into three central arguments: (1)
Appellant violated the statutory notice and advertising requirements for county's
increasing tax levies and adopting budget; (2) Appellant's decision was arbitrary,
and capricious and not supported by substantial evidence; and (3) Appellant
3
exceeded the statutory limitations for county tax increases based on its increase in
the millage for the county. R. Vol. 8, p. 1186. Appellant denied the claims in its
briefing, and argued that actual notice of the tax levy and budget supplanted the
statutory notice, the tax increases were within the statutory limitations, and the
decision to increase the tax levy was not arbitrary and capricious. R. Vol. 9, pp.
1333-1337.
The Circuit Court of Tunica County held a hearing on this matter on June 4,
2015. R. Vol. 10, p. 1362; R. Vol. 11. There, Appellant made an Ore Tenus
Motion to Dismiss Appellee's claim for lack of subject matter jurisdiction based on
Appellee' s failure to have the Bill of Exceptions signed by the board president and
timely filed within ten (10) days of the adjournment of the meeting where the
budget was approved pursuant to Miss. Code Ann.§ 11-51-75. R. Vol. 11, pp. 43-
44. There was another hearing scheduled for October 6, 2015, which was canceled
by the circuit court. R. Vol. 10, p. 1365.
On October 13, 2015 the Circuit Court of Tunica County, Mississippi issued
its Order Denying Ore Tenus Motion to Dismiss and Granting Relief to Plaintiff.
R. Vol. 10, pp. 1366-82. The circuit court ruled that the statutory requirements of
Miss. Code Ann. § 11-51-75 did not apply and that the statutory requirements of
Miss. Code Ann. § 11-51-77 could be waived. On that ground, as well as estoppel,
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it denied Appellant's Ore Tenus Motion to Dismiss for lack of jurisdiction. R. Vol.
10, pg. 1366-71.
On the merits, the circuit court found that because Appellant failed to follow
the mandatory advertising requirements to provide notice of the tax levy increases
and budget pursuant to Miss. Code Ann. § 27-39-203 (2)(a), the tax levy increase
was void as to Appellee and all other taxpayers of Tunica County, and they would
all be entitled to a refund. R. Vol. 10, pp. 1381-1382. Appellant timely filed its
Notice of Appeal on October 30, 2015 in this matter challenging the lower court's
jurisdiction pursuant to statute as well as its determinations based upon the merits
of the matter. R. Vol. 10, pp. 1383-85. Appellant files this brief to support its
appeal.
Relevant Facts. This case arises out of the decision of the Board of
Supervisors of Tunica County to increase its ad valorem tax levy as part of its
Fiscal Year 2015 budget. On Monday, August 4, 2014 Tunica County Board of
Supervisors met with Allen Godfrey of the Mississippi Gaming Commission where
it learned that declining gaming revenue trends would adversely affect tax
revenues and budget for the new fiscal year. R. Vol. 1, p. 36.
Continuing to the August 14, 2014 board meeting, the Board of Supervisors
received and examined information that the assessed value of property in Tunica
County declined by $4,678,672, a 1.87% decrease. R. Vol. 2, pp. 254-58. That
5
same day during its meeting, the Tunica County Board of Supervisors also
equalized its tax rolls as advertised in the local paper of record for Tunica County,
Mississippi, the Tunica Times. R. Vol. 2, p. 254. There was no objection to the
assessment by the Appellee. R. Vol. 1, p. 129.
On August 25, 2014, the County Administrator Michael Thompson
presented "FY 2015 Budget," a presentation that asked the Board of Supervisors to
"develop efficient and sustainable government" in light of declining revenues and
the budget cuts and tax increases that would be necessary to make up the shortfall.
R. Vol. 2, pp. 296-300; R. Vol. 3, pp. 301-05.
An advertisement was published on August 22, 2014 for a hearing on the
"Proposed Budget and Proposed Tax Levies for Tunica County" that was held on
Thursday, August 28, 2014. R. Vol. 3, pp. 309-13. The advertisement stated as
follows:
The Tunica County Board of Supervisors will hold a public hearing on its proposed budget and proposed tax levies for the fiscal year 2014-2015 on Thursday, August 28, 2014 at 5:00pm at the Tunica County Courthouse located at 1300 School Street, in Tunica.
The Tunica County Board of Supervisors is now operating with projected total budget revenue of $45,368,673. Four ( 4) percent or $2,043,000 of such revenue is obtained through ad valorem taxes. For the next fiscal year, the proposed budget has total projected revenue of $40,000,000. Of that amount, eight (8) percent or $3,100,000 is proposed to be financed through a total ad valorem tax levy.
6
For the next fiscal year, the Tunica County Board of Supervisors plans to increase your ad valorem tax millage rate by 5.00 mills, due to the decrease in assessed property values.
Any citizen of Tunica County is invited to attend this public hearing on the proposed budget and tax levy, and will be allowed to speak for a reasonable amount of time and offer tangible evidence before any vote is taken.
R. Vol. 3, pp. 312-313.
Barbara Tuchel of Tunicans for Transparency in Government and a citizen of
Tunica County produced a brief report making suggestions for budget reductions
and restructuring that could produce savings for the county prior to the August 281h
public hearing on the ad valorem tax increases and budget. R. Vol. 3, pp. 395-396.
There was no action taken in the August 281h meeting regarding the tax levy
increases or the budget. R. Vol. 11, p. 18. The Board set a date at the August 28th
meeting to consider the budget and tax increases. R. Vol. 11, p. 19. That next
meeting would take place on Monday, September 2, 2014. Id.
On Monday, September 2, 2014 the Tunica County Board of Supervisors
was given a presentation regarding the effect proposed budget cuts would have on
library operations. R. Vol. 3, pgs. 403-04. However, no decision was made in
regard to the budget or the tax increases at the meeting. R. Vol. 11, pp. 19-20.
The regular September 2014 Board of Supervisors meeting was recessed until
Thursday, September 4, 2014 at which time a "Work Session for the 2015 Budget
Year" was declared at the request of County Administrator Michael Thompson for
7
Thursday, September 11, 2014, as well as the regular meeting being recessed to the
same date. R. Vol. 4, p. 522; 528, 533.
The Tunica County Board of Supervisor's Minutes bear out that there was a
Tunica County Board of Supervisors meeting held on September 15, 2014 for
which there was notice posted on the courthouse door on September 4, 2014, one
hour prior to that meeting being recessed, pursuant to the Open Meetings Act. R.
Vol. 4, p. 550; R. Vol. 11, pp. 21-22. Barbara Tuchel, along with other concerned
citizens of Tunica County, once again presented budget concerns to the Tunica
County Board of Supervisors and referenced the August 28, 2014 budget hearing.
R. Vol. 4, pp. 550-52. Appellee was not present at this meeting. R. Vol. 1, p. 10.
At this meeting there was a Resolution Adopting Budget and Tax Levy
dated September 15, 2014 with the Attached Budget Form Das required by
Mississippi law and regulations. R. Vol. 4, pp. 574-600; R. Vol. 5, pgs. 601-16.
Further, there was an Order Levying Taxes for Fiscal Year 2015 (FY2015) dated
September 15, 2014. R. Vol. 5, pp. 617-24.
Overall, Tunica County increased the ad valorem tax millage rate by 19.36
mills from 64.72 to 84.08. Id.; R. Vol. 4, pg. 573. The proposed budget for Fiscal
Year 2015 had projected revenue of$35,621,996, of which 8.42 percent, or
$3,000,000.00, is proposed to be financed through an ad valorem tax levy. R. Vol.
4, pg. 573; R. Vol. 4, p. 575. This represented a decrease from the budget for
8
Fiscal Year 2014, which projected total budget revenue of$45,368,673 of which
4.5 percent, or $2,043,000 of such revenue was obtained through ad valorem taxes.
Id.; R. Vol. p. 575.
Another notice was given for a budget and tax levy hearing for September
30, 2015. R. Vol. 4, pg. 573; Rec. Vol. 5, pgs. 737-38; R. Vol. 9, p. 1338. The
September 301h meeting was a hearing for the taxpayers to express any feedback
about the budget, since it had already been passed, and to possibly amend the
budget. R. Vol. 11, p. 25. Various citizens appeared before the Tunica County
Board of Supervisors about budget concerns on September 30, 2014. R. Vol. 5,
pp. 731-33.
On October 10, 2014, Appellee filed its Bill of Exceptions/Notice of Appeal
in the circuit court. R. Vol. l,pp. 7-14.
Appellee paid a total of $681,811.40 in ad valorem and property taxes to
Tunica County for the 2014 tax year. R. Vol. 8, p. 1183.
SUMMARY OF THE ARGUMENT
1. The circuit court clearly erred when it denied Appellant's Ore Tenus
Motion to Dismiss for lack of subject matter jurisdiction. Appellee failed to
perfect the appeal of the decision to increase the tax levy pursuant to Miss. Code
Ann.§ 11-51-77 by failing to post the required bond within 10 days of the county's
decision to approve the tax levy and budget. In fact, Appellee erroneously filed the
9
appeal as a Bill of Exceptions to the Appellant's order raising the tax levy pursuant
to Miss. Code Ann.§ 11-51-75. The court considered this appeal under Section
11-51-75, until its final order, where it found that Section 11-51-77 applied, yet
waived the jurisdictional requirement of posting the bond. This was clear error on
the part of the circuit court and warrants reversal and dismissal of the Appellee' s
claim with prejudice. Finally, the circuit court's ruling that Appellant was
estopped from claiming that the initial bill of exceptions appeal was untimely filed
due to failure to follow the statutory notice requirements has no basis in law and is
not applicable to this case.
2. In the alternative, if the Court finds that the circuit court has
jurisdiction and considers the actual merits of the claim, it should find that the
circuit court also erred by finding the tax levy void based on the failure of
Appellant to meet the statutory notice and advertisement requirements for the tax
levy increases pursuant to Miss. Code Ann. § 27-39-203 (2)(a). Specifically, the
circuit court's decision to void the tax levy based on Appellant's failure to follow
the technical notice requirements of the statute was an improper remedy based on
Miss. Code Ann. § 27-39-203 (9), which only prevented the county from
expending funds from the tax levy until the notice is corrected as opposed to
voiding the taxes all together. The circuit court could only void the taxes if the
statue designated that as a specific remedy for failure to follow the notice
10
requirements, and it does not. All other claims by Appellee were waived for
consideration by this Court, because they were not litigated at the trial level.
ARGUMENT
I. The Circuit Court lacked jurisdiction over the tax levy appeal, as Appellee failed to properly perfect the appeal pursuant to Miss. Code Ann.§ 11-51-77.
Appellee erroneously filed a Bill of Exceptions pursuant to Miss. Code Ann.
§ 11-51-75 to appeal Appellant's order to increase the ad valorem tax levy for
Fiscal Year 2015. R. Vol. 1, p. 7; R. Vol. 10, p. 1367. The circuit court reviewed
the matter as an appellate court with limited review based on the statutory
requirements of Section 11-51-75. R. Vol. 11, p. 3. However, in its final order,
the circuit court properly found that Miss. Code Ann. § 11-51-77 applied to give
the court jurisdiction to consider the tax appeal, yet waived the statutory bond
requirement of Section 11-51-77 to perfect the appeal, and considered the merits of
the claim. R. Vol. 10, pp. 1370-1371. This was clear error on the part of the
circuit court.
A circuit court's jurisdiction to adjudicate an appeal of a tax decision from a
county board of supervisors is conferred by Mississippi Code Annotated Section
11-51-77. Miss. Code Ann. § 11-51-77 (2016) ( emphasis added) provides:
Any person aggrieved by a decision of the board of supervisors or the municipal authorities of a city, town or village, as to the assessment of taxes, may, within ten days after the adjournment of the meeting at which such decision is made, appeal to the circuit court of the county, upon giving bond,
11
with sufficient sureties, in double the amount of the matter in dispute, but never less than One Hundred Dollars ($100.00), payable to the state, and conditioned to perform the judgment of the circuit court, and to be approved by the clerk of such board, who, upon the filing of such bond, shall make a true copy of any papers on file relating to such controversy, and file such copy certified by him, with said bond, in the office of the clerk of the circuit court, on or before its next term. The controversy shall be tried anew in the circuit court at the first term, and be a preference case, and, if the matter be decided against the person who appealed, judgment shall be rendered on the appeal bond for damages at the rate of ten percent ( 10%) on the amount in controversy and all costs. If the matter be decided in favor of the person who appealed, judgment in his favor shall be certified to the board of supervisors, or the municipal authorities, as the case may be, which shall conform thereto, and shall pay the costs.
Because this case was an appeal of a tax levy decision by the county board of
supervisors, jurisdiction should have been properly invoked by way of Miss. Code
Ann.§ 11-51-77. Lenoir v. Madison County, 641 So. 2d 1124, 1130 (Miss. 1994)
(specific statute of§ 11-51-77 governs the method of an appeal from the board of
supervisors to the circuit court where a tax matter is involved instead of general
statute of§ 11-51-75); Jennings v. Board ofSup'rs of Coahoma County, 79 Miss.
523, 31 So. 107 (Miss. 1902). Section 11-51-77 provides the exclusive remedy for
a taxpayer to challenge tax assessments. Zimmerman v. Pontotoc County Bd. of
Supervisors, 1998 Miss. LEXIS 453, *26 (Miss. Sept. 17, 1998) (circuit court
lacked jurisdiction over tax levy claims against county board of supervisors for
failure to comply with 10-day filing requirement of Section 11-51-77); see
generally Thompson v. Anding, 370 So. 2d 1335, 1338 (Miss. 1979). This issue
has been well-settled under Mississippi law.
12
It is undisputed in this case that Appellee failed to post the required bond
(double the amount of the disputed matter but not less than $100) "conditioned to
perform the judgment of the circuit court" within 10 days of the adjournment of the
meeting in order to properly perfect the appeal under Section 11-51-77. R. Vol.
10, p. 13 71. Like the Plaintiff in Zimmerman, the circuit court lacked jurisdiction
over the tax levy claim for their failure to comply with one of the requirements of
Section 11-51-77 to perfect the appeal. Zimmerman, 1998 Miss. LEXIS 453 at 26.
Appeal bonds are jurisdictional. This Court has held that statutory appeal
bonds are jurisdictional - that is, they relate to a court's appellate jurisdiction. See,
i.e., Jackson State Univ. v. Upsilon Epsilon Chapter of Omega Psi Phi Fraternity,
Inc., 952 So. 2d 184, 186 (Miss. 2007) (holding that because plaintiff"fail[ed] to
file a petition for writ of certiorari and to post a bond with security [in accordance
with statute], the circuit court did not have jurisdiction .... ") (citations omitted);
Miss. State Pers. Bd. v. Armstrong, 454 So. 2d 912, 915 (Miss. 1984) ("This Court
has repeatedly held that statutory bond requirements are jurisdictional.") ( citations
omitted).
Similar tax cases have found that where a taxpayer fails to pay a bond as a
statutory requirement to perfect an appeal of the tax decision to the trial court, the
trial court does not have appellate jurisdiction over the taxpayer's appeal. Miss.
Dep 't of Revenue v. AT&T Corp., 101 So. 3d 1139, 1149 (124) (Miss. 2012); see
13
also Khurana v. Miss. Dep 't of Revenue, 85 So. 3d 851, 855 (Miss. 2012) (~11)
(trial court did not have appellate jurisdiction over taxpayer appeal because
taxpayer failed to fulfill the bond payment requirement necessary to properly
perfect the appeal); 5K Farms, Inc. v. Miss. Dep't of Revenue, 94 So. 3d 221, 227
(~23) (Miss. 2012) ("statutory appeal bonds ... relate to a court's appellate
jurisdiction"). "Without jurisdiction the court cannot proceed at all in any cause.
Jurisdiction is power to declare the law, and when it ceases to exist, the only
function remaining to the court is that of announcing the fact and dismissing the
cause." Miss. Dep't of Revenue, 101 So. 3d at 1149 (~26) (citations omitted). The
circuit court should not have reached the merits of this case due to lack of
jurisdiction; therefore, the order of the circuit court should be vacated and the tax
levy of the Board for the 2014-15 budget should remain in effect. Khurana, 85 So.
3d at 855 (~11 ).
Section 11-51-77 governs tax appeal, not§ 11-51-75. Appellee
erroneously brought this action under Miss. Code Ann. § 11-51-75, which requires
a "bill of exceptions" to appeal a decision of the Board of Supervisors. R. Vol. 1,
p. 7; R. Vol. 10, p. 1367. However, as the circuit court noted in its order, "where a
tax matter is involved, the filing of a bill of exceptions is not a prerequisite to
vesting the circuit court with subject matter jurisdiction over appeals to the circuit
court from decisions of the board of supervisors." Lenoir v. Madison County 641
14
So. 2d 1124, 1132 (Miss. 1994). R. Vol. 10, p. 1370. In Lenoir, the Appellant
properly posted a bond within the required time in order to perfect the appeal of the
tax decision of the Madison County Board of Supervisors to the circuit court
pursuant to Section 11-51-77. Lenoir, 641 So. 2d at 1125. Appellee was required
to do the same in this matter.
The circuit court properly acknowledged that the appeal should have been
brought under Section 11-55-77; however, it seemingly made that determination in
order to confer upon itself jurisdiction to consider the merits of the claim, because
HWCC-Tunica failed to meet the statutory requirements of Section 11-51-75. R.
Vol. 10, pp. 1370-1371. Specifically, Appellee failed to have its pleading signed
by the President of the Board of Supervisors. Miss. Code Ann.§ 11-51-75 (2016).
R. Vol. 10, p. 1369. The circuit court properly cited City of Jackson v. Varia, Inc.,
241 Miss. 705, 133 So. 2d 16 (Miss. 1961) for the finding that HWCC-Tunica's
failure to have the bill of exceptions signed by the President of the Board precludes
the circuit court from havingjurisdiction in this case. R. Vol. 10, p. 1369; see
generally Lucas v. Williamson, 852 So. 2d 67, 68-69 (~5) (Miss. Ct. App. 2003)
(board appeal dismissed with prejudice for lack of subject matter jurisdiction for
failure to follow one of the requirements to perfect the appeal pursuant to Miss.
Code Ann. § 11-51-75). Hence, the circuit court did not have jurisdiction based on
Sections 11-51-75 and 11-51-77. Appellee failed to meet the statutory
15
requirements of both laws. Though, the specific statute of Section 11-51-77 is the
only statute that is applicable to perfect the appeal, Appellee has no legal avenue
with which the carry out the appeal even if Section 11-51-75 were applicable. The
circuit court admitted this in its order ("If required to make this call in the context
of a bill of exceptions, the court would most likely have to find it lacked
jurisdiction to entertain this matter."). R. Vol. 10, p. 13 70. The circuit court had
no jurisdiction over the tax levy claim under either statute, though Section 11-51-
77 controls. For this reason the circuit court's decision should be reversed and
rendered by this Court.
Waiver of jurisdictional requirement erroneous. Though the circuit court
conceded that Appellee failed to post a bond as required by Section 11-51-77; the
court retroactively waived the bond requirement without any basis in law:
One other procedural matter must be discussed before addressing the merits of the [P]laintiffs claim. Under Miss. Code Ann.§ 11-51-77, the [P]laintiff is required to post a bond "conditioned to perform the judgment of the circuit court." However, the court understands that the tax heretofore imposed upon the [P]laintiff has been paid. As such, the posting of the bond would serve no purpose and would simply be penal in nature. The court thus waives the necessity of the bond as required under Miss. Code Ann.§ 11-51-77. If the court is incorrect in its assumption, the parties will advise accordingly, and the court will revisit this issue.
R. Vol.10,p.1371.
This was also clear error on the part of the circuit court.
16
First, payment of taxes in protest by Appellee could not supersede the
statutory requirement for payment of the bond to perfect the appeal. See generally
Miss. Dep't of Revenue, 101 So. 3d at 1149 (125). Most importantly, a trial court
cannot waive a statutory requirement for jurisdiction. See generally Price v. Price,
202 Miss. 268, 272, 32 So. 2d 124, 125 (Miss. 1947) ("well established rule that
where a statute creates a right of action which did not exist at the common law and
the same statute fixes the conditions upon which the right may be asserted, the
conditions are an integral part of the right thus granted -- are substantive
conditions, the observance of which is essential to the assertion of the right").
Further, this Court has said, "when a special and particular statute deals with
a special and particular subject, its particular terms as to the special subject control
over general statutes dealing with the subject in general." Id. ( citing Gulley v.
Lumbermen's Mut. Cas. Co., 176 Miss. 388, 397, 166 So. 541, 168 So. 609
(1936)). Other jurisdictions have similarly found where mandatory statutory
requirements are ignored, the Court lacks subject matter jurisdiction. See Reed v.
Clark's Swimming Pools, Inc., 1997 Del. C.P. LEXIS 27, *4 (Del. C.P. 1997).
Here, as in the jurisdictional requirement for divorce in Price, the statutory
requirements under the specific statute of Section 11-51-77 for tax matters had to
be met in order for Appellee to bring its claim before the circuit court. And, as the
circuit court order aptly noted, even though the Appellant admitted jurisdiction in
17
its response, the parties could not confer subject matter jurisdiction upon the court
where it does not exist. Reeves v. City of Crystal Springs, 54 So. 3d 322, 326 (~12)
(Miss. Ct. App. 2011) ("It is fundamental that the parties cannot, by agreement or
by waiver, confer jurisdiction where none exists as a matter of law.") R. Vol. 10,
p. 13 70; see also Miss. Dep 't of Revenue, 101 So. 3d atl 146 (~20) ("jurisprudential
logic dictates that jurisdiction cannot be conferred on the [trial] court by
agreement, consent, or stipulation"). The statutory requirements to perfect the
appeal under Section 11-51-77 were not met; thus, the circuit court erred by not
dismissing the Appellant's claim for lack of subject matter jurisdiction.
Erroneous standard of review. Sections 11-51-77 and 11-51-75 are not
only distinguishable based on the subject matter and requirements to perfect an
appeal of a county board decision, but they also require different standards of
review. There are several cases which interpret Miss. Code Ann.§ 11-51-77,
pertaining to ad valorem tax cases decided by the board of supervisors, to require
circuit courts to conduct trials de novo. State Tax Comm'n v. ANR Pipeline Co.,
806 So. 2d 1081, 1084 (Miss. 2001); Lenoir v. Madison County, 641 So. 2d 1124,
1128 (Miss. 1994); Rebelwood, Ltd. v. Hinds County, 544 So. 2d 1356, 1358
(Miss. 1989).
18
The de novo trials in circuit require evidentiary burdens of proof that the
appellant must overcome in overturn a board's tax decision on appeal. City of
Jackson v. McCardle's Estate, 189 Miss. 781, 198 So. 736 (1940).
Here, the circuit court, which wrongfully invoked jurisdiction under § 11-
51-75, acted as an appellate court with limited review. R. Vol. 11, p. 3. This
action was clearly erroneous. Section 11-51-75 has a limited standard of review as
an appellate court and no extrinsic evidence outside of the record made before the
board is allowed. See Ladner v. Harrison County Bd. of Sup 'rs, 793 So. 2d 63 7
(Miss. 2001); Wilkinson County Bd. of Supervisors v. Quality Farms, Inc., 767 So.
2d 1007 (Miss. 2000). Circuit court's failure to apply the appropriate standard of
review when reviewing a board's decision constitutes reversible error. Perez v.
Garden Isle Cmty. Ass 'n, 882 So. 2d 217, 223 (~17) (Miss. 2004). This only
compounds the error of the circuit court in reviewing this case under Section 11-
51-75 and waiving the requirements of Section 11-51-77. The circuit court
erroneously reviewed this matter under one jurisdictional statute; then applied the
correct jurisdictional statute in its final order, only to waive one of its
requirements. And all this in order to consider the merits of the claim, which the
court was not entitled to do under the law. The circuit court's decision should be
reversed and rendered for lack of jurisdiction.
19
Estoppel ruling erroneous. Finally, the circuit court's ruling that Appellant
was estopped from claiming that the initial bill of exceptions appeal was untimely
filed due to failure to follow the statutory notice requirements has no basis in law
and is not applicable to this case. R. Vol. 10, 1369, 1377. First, there is no
Mississippi case or statutory law that allows a party to be estopped from raising a
jurisdictional requirement, especially when it is not a court of equity. Secondly,
failure to meet the jurisdictional requirements precludes the court from considering
the merits of a claim. Price, 202 Miss. at 272, 32 So. 2d at 125; Khurana, 85 So.
3d at 855. So a court can't essentially work backwards and consider the merits of
the claim as a legal basis to find that one party is estopped from raising a
jurisdictional defense. And finally, Appellant concedes that the appeal was
actually timely filed. The central issue that is dispositive to this case is that the
Appellee failed to meet the jurisdictional requirement of posting the bond pursuant
to Section 11-51-77, because they erroneously filed under Section 11-51-75. There
is simply no legal exception that would allow for the circuit court to have
jurisdiction to consider the merits of the tax levy appeal. Therefore, the decision of
the circuit court should be reversed and rendered, and the tax levy appeal
dismissed with prejudice.
20
II. The Circuit Court also erred in determining that the ad valorem tax increase was improperly levied and collected due to Appellant's failure to comply with the mandatory advertising requirements pursuant to Miss. Code Ann.§ 27-39-203 (2)(a).
It is clear that the circuit court lacked jurisdiction to consider the tax levy
appeal for failure to perfect the appeal pursuant to Section 11-51-77. This
jurisdictional issue is dispositive of this case and would have prevented the circuit
court from considering merits of the claim. However, if this Court disagrees and
considers the merits of this claim, the circuit court's decision should also be
reversed and rendered for providing an improper remedy under the notice statute.
Miss. Code Ann.§ 27-39-303 (2016) gives authority to county boards of
supervisors to levy and collect ad valorem taxes and expend the proceeds from the
tax levies. Miss. Code Ann.§ 27-39-203 (2) (2016) provides for the notice and
advertisement requirements for a mandatory public hearing to be held before
levying such taxes and adopting the budget for the next fiscal year.
First, Appellants concede that Tunica County did not fully comply with the
notice requirements under the statute to advertise the public hearing to consider the
tax levy and proposed budget. However, the record is clear that the public hearing
to consider the tax levy and budget was advertised in Tunica Times newspaper on
August 22, 2014, which was six (6) days before the meeting, not seven, and was
run only once, not twice. R. Vol. 3, pp. 395-396.
21
But the final meeting was not held on August 28th. Tunica County taxpayers
had actual notice of the final meeting and were present to be able to voice their
concerns and opinions regarding the tax levy and budget at subsequent September
15th meeting before the tax levy and budget were adopted. R. Vol. 4, pp. 550-52.
That September 15th meeting was also advertised by posting at the courthouse
within one hour prior to the September 4th meeting being recessed pursuant to the
Open Meetings Act. R. Vol. 4, p. 550.
Therefore, because the advertisements were done and taxpayers had received
actual notice, the intent of the notice statute was satisfied. See Opinion No. 97-
0022, Austin, January 24, 1997, 1997 WL 47285 (Miss. A.G.) (determining that
referendum election was valid even though county board of supervisors did riot
follow the notice requirements of the law authorizing the referendum election;
actual notice provided was sufficient).
Voiding the tax levy was an improper remedy. Most importantly, finding
the tax levy to be void based on failure to meet the specific notice requirements
was an improper remedy under Miss. Code Ann.§ 27-39-203 (9) (2016).
The statute specifically says, "Any governing body of a tax entity shall be
prohibited from expending any funds for the applicable fiscal year until it has
strictly complied with the advertisement and public hearing requirements set forth
in this section." Miss. Code Ann.§ 27-39-203 (9) (2016). In other words, Section
22
27-39-203 (9) is clear that the remedy is not to void the levy but to require the
proper notice to be given, with an opportunity to be heard, before the funds are
spent. The statute gives the county an opportunity to correct the notice.
Put differently, the statutory notice requirements in this case are "directory"
rather than "mandatory," since the statute did not specifically declare that any tax
increases would be void for failure to follow the notice requirements. See
generally Rogers v. Holder, 636 So. 2d 645, 647-648 (Miss. 1994) (election statute
that "did not expressly declare that a particular act is essential to the election's
validity or that omission of the particular act will render the election void," was
considered "directory rather than mandatory ... "). Since the notice statute is
directory, then the tax levy was valid and the circuit court erred by voiding the tax
levy all together. Id. at 648; see also Shipman v. North Panola Consol. Sch. Dist.,
641 So. 2d 1106, 1116 (Miss. 1994) ( court held that failure of the board to record
any notice of the special meeting for the school bond election, while violated the
Open Meetings Act, did not void the actions of the board in absence of a specific
statutory remedy that voided such actions).
Appellant agrees with Appellee's argument that "[t]the power to levy and
collect taxes is conferred by statute, and when so conferred, can be exercised only
in the manner pointed out by statute." Chickasaw County v. Gulf, Mobile & Ohio
R. Co., 15 So. 2d 348, 351 (Miss. 1943) (citation omitted).
23
Thus, the circuit court erred by finding the tax increases adopted in the
2014-15 budget null and void. At worst, the circuit could only have prevented the
county from expending funds from the increases until the notice advertisement was
corrected and a hearing held based on the statute. Once corrected, then the tax
revenue from the increases could be expended. The circuit court did not have
discretion to void the tax increases altogether.
Appellee relies on Miss. Code Ann. § 27-73-7 (2016) for their entitlement to
a refund of taxes that were "paid or collected through error." However, the failure
to follow notice requirements does not in itself make the taxes paid erroneous or
void based on Section 27-39-203(9). The ability to expend funds once the notice
was corrected means that the funds from the tax increases could be spent.
Therefore, the tax increases would not be erroneous; and Appellee would not be
entitled to a refund of taxes.
Furthermore, all other taxpayers of Tunica County would not be entitled to a
refund of taxes paid. The circuit court ordered that on the theory that the failure to
properly notice the hearing voided the tax levy for the entire county. R. Vol. 10,
pp. 1381-1382. However, such a ruling had no basis in the law. Because all
taxpayers were not parties to this circuit court tax levy appeal, they would not be
entitled to any relief from a judgment in this action. See Darden v. Bd. of
Supervisors, 169 So. 3d 913, 916 (,11) (Miss. Ct. App. 2014) (circuit court
24
properly refused to grant a declaratory judgment to all the Sixteenth Section
leaseholders of Wilkinson County based on an order that only applied to
leaseholders who challenged the tax assessments). Appellee was the only taxpayer
that filed an action challenging the tax levy decision, and thus, was the only party
entitled to relief in the judgment. \
Road and construction taxes are valid. More specifically, the circuit
court's finding that the road and construction taxes are void and illegal based on
the failure to give proper notice was clearly erroneous.
First, the County Road Construction and Maintenance levy is better
characterized as a new levy that does not require notice. See Opinion No. 98-0341,
Meyer, June 19, 1998, 1998 WL 382974 (Miss. A.G.) (determining that Miss.
Code Ann. § 27-39-203 notice requirements do not apply to a new levy).
Under Mississippi law, the courts cannot interfere with the discretion of the
county board of supervisors to expend tax funds for the construction and repair of
roads and highways. See Board of Supervisors v. Hawkins, 192 Miss. 330, 334-
335 (1942) (reversed the circuit court's apportionment of taxes for road
construction because the authority for the apportionment of taxes was specifically
vested in the county board of supervisors); see generally Board of Sup 'rs v. Self,
156 Miss. 273, 283-284 (1930); Board of Sup 'rs v. Callender, 128 Miss. 159, 170
( 1921 ). The circuit court's action to void the tax increase based on the inadequate
25
notice in the absence of a statutory remedy allowing for that constitutes a
usurpation of the Appellant's authority to determine taxes for roads and
construction. The law defers to the county board when it comes to expending tax
funds for roads and construction. Voiding the road and construction taxes for
failure to give notice, when that is an unlawful remedy, contravenes that legal
principle.
Additional claims are waived. Finally, Appellee made two additional
claims: (1) the actions of the Board in increasing taxes were arbitrary and
capricious; and (2) the actions of the Board to increase taxes exceeded the statutory
limitation for said tax increase pursuant to Mississippi law. R. Vol. 8, p. 1186.
However, these additional claims have no merit.
First of all, Appellee waived these claims by admitting that they were not
being raised on this appeal, and they only raised them in order to preserve these
issues to bring a separate lawsuit against the county based on Falco Lime, Inc. v.
Mayor and Aldermen of the City of Vicksburg, 836 So. 2d 711 (Miss. 2002). R.
Vol. 9, pp. 1207-1208. However, this case was inapplicable here, because it only
allowed for a separate de novo action following a bill of exceptions appeal under
Section 11-51-75. Id. at 720 (,-f37). Section 11-51-77 should have governed this
appeal, which already required a trial de novo before the circuit court. Therefore,
Appellee should have fully argued rather than merely preserved these claims
26
during their circuit court appeal. Failure to raise the claim before the circuit court
constitutes a waiver of considering these issues on appeal. See generally
Mississippi Gaming Comm'n v. Baker, 755 So. 2d 1129, 1133 (,11) (Miss. Ct.
App. 1999).
Nevertheless, even if Appellee did not waive their claims, their claims still
fail on the merits. Appellee claims that the Board's tax levy decision was arbitrary
and capricious because the county administrator failed to provide the Board with
financial information of the county pursuant to Mississippi Code Annotated
Section 19-11-71. R. Vol. 9, pp. 1201-1203. However, the record, which contains
the PowerPoint presentation on the fiscal health of the county provided by Michael
Thompson, County Administrator, makes it clear that the Board actually received
this information from the County Administrator along with other information
regarding the county's fiscal outlook. R. Vol. 2, pp. 294-300; R. Vol. 3, pp. 301-
05.
Secondly, Appellee admitted that the aggregate receipts needed to prove
their claim that the tax increases exceeded the statutory minimum increase of 10%
pursuant to Mississippi Code Annotated Section 27-39-321 were not a part of the
record, therefore, their claim was unsubstantiated. R. Vol. 9, p. 1207.
Authority cited by Appellee is not applicable in this case. The statutes at
issue in Gulf & Ship Island R. Co. v. Harrison County, 4 So. 2d 717 (Miss. 1941)
27
and Burke, Sherriff and Tax Collector v. Leggett, et. al., 79 So. 843 (Miss. 1918)
involved requirements for the County's Order levying taxes and not notice of the
board meeting to levy the taxes. The court interpreted the statute to mean the tax
levy is void for failure to follow the requirements of the statute, while the notice
statute actually provides an actual remedy for failure to follow the notice
provisions in the statute. There is no need for interpretation by the court for a
specific statutory remedy.
While the central argument in this case is that the circuit court lacked
jurisdiction over this tax levy claim, even if this Court finds that it did have
jurisdiction, the tax levy claim still has no merit. The circuit court unlawfully
voided the tax increase based on the notice statute which allows for a different
remedy. Appellee's other claims were waived and have no merit. Thus, the circuit
court's ruling should be reversed and rendered.
CONCLUSION
The circuit court clearly erred by failing to dismiss this case with prejudice
due to lack of subject matter jurisdiction to consider the tax levy appeal. Appellee
clearly failed to meet the statutory bond requirement of Section 11-51-77 to perfect
the appeal before the circuit court. In fact, they did not follow either appeal
statute. They attempted to appeal using a bill of exceptions pursuant to Section 11-
28
51-75 but never got it signed. They did not appeal, as they should have done, by
posting a bond under the tax appeal statute.
If the appeal was properly taken, then the literal language of the remedy
provision should be enforced, in two respects.
First, the remedy is not to prohibit the collection of money but to prohibit it
from being spent until proper notice is given and a hearing held. The circuit court
erred by holding, after the fact, that the levy itself was void.
Second, even if it was correct to void the levy, it should have only been
voided as to the appellants when no other party has ever come forward and
complained of a lack of notice. In other words, if the taxpayers are entitled to a
pound of flesh, they are not entitled to one drop of blood.
For these reasons, Appellant respectfully prays that the Court reverse the
circuit court's order and hold that the tax levy appeal should be dismissed with
prejudice for lack of subject matter jurisdiction.
In the alternative only, the Court should find that the tax levy was valid,
despite the failure to meet the statutory notice requirements, because the statutory
remedy allowed for the notice to be corrected as opposed to the taxes to be voided.
29
Respectfully Submitted,
/s/ Julian D. Miller JULIAN D. MILLER (MSB 104377) BUTLER SNOW LLP 1020 Highland Colony Pkwy., Ste. 1400 Post Office Box 6010 Ridgeland, MS 39158 Telephone: (601) 948-5711 Facsimile: (601) 985-4500 [email protected] [email protected]
MEL VIN D. MILLER, II (MSB 103 83 5) MELVIN D. MILLER LAW FIRM, PLLC 1409 Shady Lane Clarksdale, MS 38614 Telephone: ( 662) 402-1396 Facsimile: (662) 621-9063 [email protected]
30
CERTIFICATE OF SERVICE
I, Julian D. Miller, one of the attorneys for Tunica County Board of
Supervisors, hereby certify that on this date I electronically filed the Brief of
Appellant Tunica County Board of Supervisors to the following:
A. Thomas Tucker, III Tucker, Selden & Tucker, PLLC 1245 Main Street P.O. Box 68 Tunica, MS 38676-0068 Counsel for Appellee HWCC-Tunica, LLC
and I hereby certify that I have mailed by United States Postal Service the
document to the following non-ECF participant:
The Honorable Charles E. Webster Tunica County Circuit Court Judge P.O. Drawer 998 Clarksdale, MS 3 8614
SO CERTIFIED this the 30th day of June, 2016.
Isl Julian D. Miller JULIAN D. MILLER (MSB 104377) BUTLER SNOW LLP 1020 Highland Colony Pkwy., Ste. 1400 Post Office Box 6010 Ridgeland, MS 39158 Telephone: (601) 948-5711 Facsimile: ( 601) 985-4500 [email protected]
MELVIND. MILLER, II (MSB 103835) Melvin D. Miller Law Firm, PLLC 1409 Shady Lane Clarksdale, MS 3 8614
31
