278 So.3d 1170
Miss. Ct. App.2019Background
- In July 2017 Lynn Wirtz asked the Adams County Board of Supervisors to request an explanation from neighbor Dr. H.W. Barnett for removing timber/soil from a right-of-way; the Board refused to send a letter.
- Wirtz filed a pro se bill of exceptions in Adams County Circuit Court on July 14, 2017, naming the Board and Dr. Barnett as defendants and seeking judicial review of the Board’s refusal.
- The Board moved to dismiss because Wirtz refused to amend his bill of exceptions to include the Board’s July 5, 2017 meeting minutes; the Board argued the record was insufficient for the court to act.
- Dr. Barnett separately moved to dismiss, asserting he was never a party before the Board and thus the circuit court lacked personal and subject-matter jurisdiction over him; he also sought attorney’s fees under the Mississippi Litigation Accountability Act.
- The circuit court (1) dismissed Dr. Barnett for lack of personal and subject-matter jurisdiction and awarded him $1,000 in attorney’s fees, (2) dismissed Wirtz’s appeal against the Board for lack of subject-matter jurisdiction based on the deficient bill of exceptions, and (3) later held Wirtz in contempt for failing to pay the fees.
- On appeal the Court of Appeals affirmed dismissal of Barnett and the Board (but on the Board dismissal it relied on the insufficiency of the bill of exceptions), vacated the attorney-fee award for lack of statutory findings, and remanded for reconsideration.
Issues
| Issue | Plaintiff's Argument (Wirtz) | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction over Dr. Barnett | Wirtz added Barnett as a defendant to get relief for Barnett’s removal of timber/soil | Barnett was not a party to the Board proceedings and thus not subject to the appeal | Court affirmed dismissal: no personal or subject-matter jurisdiction over Barnett |
| Sufficiency of bill of exceptions / subject-matter jurisdiction over Board appeal | Wirtz filed bill in circuit court and refused to include Board minutes; he argued the appeal should proceed | Board argued omission of meeting minutes made the record fatally defective so circuit court could not act | Court held circuit court had jurisdiction but affirmed dismissal because bill of exceptions lacked the necessary meeting minutes and was fatally defective |
| Timeliness of appeal | Wirtz filed Rule 52/59 motions within 10 days and a premature notice of appeal; he argued those toll appeal time | Board and Barnett argued Rule 52/59 motions did not toll because circuit court acted in appellate capacity over a board decision | Court held Rule 52/59 motions tolled appeal period here; appeal was timely |
| Attorney’s fees and contempt order | Wirtz argued fee award and contempt were improper | Barnett sought fees under the Mississippi Litigation Accountability Act | Court vacated fee award because trial court did not make the statutorily required findings; contempt ruling rendered moot and remanded for proper consideration of fees |
Key Cases Cited
- City of Jackson v. Allen, 242 So. 3d 8 (Miss. 2018) (clarified bill-of-exceptions filing procedure for board appeals)
- Stroud v. Progressive Gulf Ins., 239 So. 3d 516 (Miss. Ct. App. 2017) (appellate court may affirm for correct result even if lower court gave different reason)
- Tunica Cty. v. Town of Tunica, 227 So. 3d 1007 (Miss. 2017) (statutory factors and required findings for awarding attorney’s fees under Litigation Accountability Act)
- Mallery v. Taylor, 792 So. 2d 226 (Miss. 2001) (a premature notice of appeal becomes effective when a timely Rule 59 motion is disposed of)