Lead Opinion
for the Court:
¶ 1. William Alias, Jr. appeals the judgment of the Circuit Court of Lafayette County that upheld the City of Oxford’s grant of a zoning variance to Richard Elam for construction of a privacy fence which bordered his and Alias’s residential property. After a careful review of the
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
¶ 2. Alias and Elam are neighbors in the Grand Oaks subdivision in Oxford, Mississippi. This case arose as a dispute over a privacy fence that Elam wanted to erect along his driveway adjacent to Alias’s property. Elam’s lot, number 213, is a peculiar flag-shaped lot, with his driveway forming the “pole” of the flag and running between lots 212 and 214. Alias owns Lot 214. Elam’s driveway abuts Alias’s garage and utility area, and his house is set behind lot 212. In February 2007, Elam originally presented Alias with building plans for an eight-foot-tall retaining wall between the two properties. After a survey of the property and in response to concerns by Alias, Elam redesigned the project and opted to build a privacy fence instead of the retaining wall. Elam claims Alias did not object to the fence until Elam had already started building it. The record indicates Alias had, however, conferred with his attorney, and in February, Alias obtained an opinion letter from his attorney advising him on his various concerns about Elam’s retaining wall.
¶ 8. In April 2007, Elam obtained a building permit from the City of Oxford (“City”) for the project; the City’s Director of Planning and Development, Tim Akers (“Director”), originally interpreted the City’s Land Development Code (“Code”) to allow Elam’s eight-foot-tall privacy fence in a location identified as the “side yard.” Soon after building had commenced and fence footings had been installed, however, the Director issued Elam a stop work order. After objection from Alias’s attorney, the Director decided the property where Elam planned to build the fence was the “front yard,” and not the “side yard.” The Code does not allow a solid fence in the “front yard” to exceed thirty inches.
¶ 4. The Director recommended the variance be granted. On May 14, 2007, at the Commission’s regular meeting, the Commission granted Elam’s variance, with the express condition that the fence would not extend beyond the front elevation of either structure (of lots 212 and 214) located on either side of Elam’s driveway. The Commission approved the minutes at its June 11, 2007, meeting.
¶ 5. On June 14, 2007, Alias filed a notice of appeal and a bill of exceptions with the Circuit Court of Lafayette County. The circuit court affirmed the Commission’s decision, entering a judgment in favor of the City on March 11, 2008. Alias filed a notice of appeal of that judgment on April 4, 2008.
¶ 6. On March 17, 2009, this Court rendered its decision in Rankin Group v. City of Richland,
ANALYSIS
¶ 7. Although Alias raises several issues regarding the propriety of the variance granted to Elam, we only find it necessary to address whether the case is properly before this Court. Jurisdiction is a question of law; thus, this Court’s review is de novo. Busby v. Anderson,
¶ 8. In its brief before this Court, the City raises for the first time the issue of whether the circuit court had jurisdiction to hear the appeal from the Commission. Citing Ranlcin Group, the City argues that Alias’s appeal to the circuit court was untimely because Alias did not file the notice of appeal within ten days of the City’s decision to grant the variance, as required by section 11-51-75, which provides in part:
Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities ... may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities.
Therefore, the City argues, because Alias’s notice of appeal to the circuit court was untimely filed, this Court must dismiss the appeal for lack of jurisdiction.
¶ 9. Alias counters that the City has waived this issue because it was raised for the first time before this Court, instead of before the circuit court. Alias points out that even the circuit court, in its order, stated that Alias’s “appeal was timely perfected,”
¶ 10. The timeliness of an appeal is jurisdictional, and this Court must always acknowledge its own lack of jurisdiction. Michael v. Michael,
¶ 11. In Bowles v. Russell,
¶ 12. The Mississippi Supreme Court has held, time and again, that the ten-day time limit of section 11-51-75 is “both mandatory and jurisdictional.” See, e.g., Ball v. Mayor and Board of Aldermen of City of Natchez,
¶ 13. Alias cites to two cases in support of his proposition that the timeliness of an appeal to the circuit court under section 11-51-75 can be waived: City of Jackson v. Calcote,
¶ 14. Calcóte, however, is distinguishable from this case. In Calcote, this Court noted that the record suggested that the City of Jackson had successfully moved the circuit court for an extension of time to file its appeal under Mississippi Rule of Appellate Procedure 4(g).
¶ 15. In Garrard,
¶ 16. Alias argues that timeliness under section 11-51-75 “can be waived [and] is strongly suggested by the absence of this issue” in Garrard. This contention of error is without merit. It is a long-standing legal principle that a decision is not precedent for a legal point if that point is not considered by the reviewing court. See Craig v. Brown & Williamson Tobacco Corp.,
¶ 17. Next, Alias cites to Gale v. Thomas,
This Court has not addressed the issue of whether the question of compliance with the notice provisions of the MTCA may be raised for the first time on appeal. Despite this Court’s statements that compliance with the notice requirements is a jurisdictional issue ... it is the conclusion of this Court that the City ... [is] precluded from raising this issue for the first time on appeal. As this Court has stated, time and again, an issue not raised before the lower court is deemed waived and is procedurally barred.
Id. at 1159 (¶ 40). Recently, however, in Stuart v. University of Mississippi Medical Center,
¶ 18. Lastly, Alias argues that regardless of the waiver issue, his appeal was timely, as Rankin Group was “wrongly decided” by this Court. We disagree. Alias claims he had ten days from the date the minutes were approved or signed, on June 11, to file his appeal, rather than ten days from the adjournment of the meeting in which the decision was made. However, Rankin Group clearly held that in a municipality’s decision to demolish a structure on a citizen’s property, the ten-day time period for an appeal under section 11 — 51— 75 began to run when the meeting from which the decision originated was adjourned, not from when the minutes were approved or signed. Rankin Group,
¶ 19. We further reject Alias’s contention that Rankin Group disregards longstanding and controlling Mississippi Supreme Court precedent. Alias cites to three cases that he claims “consistently viewed finality of a [municipal] decision as dating from when the minutes were approved” for purposes of appealing under section 11-51-75: South Central Turf, Inc.,
¶ 20. In Rankin Group, this Court expressly rejected that South Central Turf stood for the proposition that a matter is not finally decided and appealable until the minutes of the meeting are signed. In South Central Turf, “the supreme court was not required to decide whether the time for appeal began at the adjournment of the meeting or upon the signing of the minutes from that meeting, because the appeal was filed more than ten days after the minutes were signed.” Rankin Group, Inc.,
¶ 21. The dissent is of the opinion that Rankin Group’s assessment of section 21-15-33 that municipal minutes become final and have “legal effect” at the actual meeting the decision occurred conflicts with City of Biloxi v. Cawley,
The minutes of every municipality must be signed by the mayor or a majority of all the members of the governing body of the municipality within ten (10) days of the meeting thereof, and upon such signing said minutes shall have the legal effect of being valid from and after the date of the meeting. All minutes signed after ten (10) days from the date of the meeting shall be valid from and after the date of such signing.
Cawley,
¶ 22. Here, we did not have one regular meeting that was recessed over a period of weeks, but the Commission’s regular meetings held on a monthly basis. There is no issue as to whether these meetings were adjourned or special meetings: both meetings at issue were regular meetings. At one meeting, the decision to approve the variance was made; and at the next meeting, the minutes from the previous meeting were approved. The meeting where the decision was made was the “final adjournment” of that particular meeting, and it was when the decision became final. We also note that Cawley does not state, as the dissent claims, that “actions are not final until the minutes are signed,” but that this alternative occurred only if the minutes were signed more than ten days after final adjournment, according to section 3374-72’s savings clause. See Cawley,
¶23. This last point evidences that Cawley actually supports, rather than undermines, our holding in Rankin Group. The Mississippi Supreme Court explained that if the minutes were not signed within the ten days, “they were not void, but, under the ‘saving clause’ of the statute, would be valid from the time of signing. The signing ‘within ten (10) days of the meeting’ is a condition precedent for the minutes to date back and become valid from and after the date of the meeting.’ ” Cawley,
¶ 24. We reaffirm our decision in Rankin Group and conclude that because Alias’s notice of appeal was not filed within ten days of the adjournment of the meeting on May 14, 2007, when the variance was granted, the circuit court lacked appellate jurisdiction to hear the appeal under section 11-51-75. Accordingly, this Court lacks jurisdiction as well and must dismiss the appeal.
Notes
. Based on the unique location of Elam's home, the entire driveway is in his "front yard.”
. In its appellate brief before the circuit court, the City argued that Alias did not timely perfect his appeal' because Alias’s bill of exceptions lacked an official signature as required by section 11-51-75 and contained inaccurate information. Alias filed a second amended bill of exceptions in September 2007, which rectified these defects.
. Alias argues that Duvall stands for the proposition that other types of jurisdiction, such as timeliness, can be waived. However, Duvall did not deal with the timeliness of an appeal, but whether the chancery court had subject-matter jurisdiction to hear a suit for property division when the court denied the separate-maintenance action. Thus, the general statement of the law that Alias cites from Duvall, while correct, is not controlling here.
. Rule 4(g) allows the trial court to extend the time for filing a notice- of appeal upon a motion not later than thirty days after the expiration of the time.
. Failure to file a cross-appeal is of no import if there is no jurisdiction, because this Court must consider the lack of jurisdiction on its own motion. See, e.g., M.W.F. v. D.D.F.,
. By 1991 revision, the time for signing minutes was changed to thirty days, and the final sentence, referred to as a "savings clause” in Cawley, was deleted. See Miss. Gen. Laws Ch. 552, Section 2 (1991); Cawley,
Dissenting Opinion
dissenting:
¶ 26. I respectfully dissent. I submit that this Court’s reliance upon Rankin Group, Inc. v. City of Richland,
¶27. In City of Biloxi v. Cawley,
We think that this is all that the statute required in order for the minutes of the regular meeting to become effective “from and after the date of the meeting” which means of course, the date of final adjournment when the actions taken become final.
Under such circumstances, so long as a regular meeting is recessed and continued from time to time, and not adjourned finally, there remains a certain fluidity or absence of finality to the actions taken which persists until final adjournment and approval of the minutes by signing as required by the statute. When signed within ten days, the actions taken at the meeting generally become effective, not from the date of convening, but from the date of adjournment, or if signed more than ten days after final adjournment, from the date of signing.
Appellees contend that this case is controlled by Stephens v. Mayor & Board of Aldermen of City of Natchez,261 So.2d 486 , 490 (Miss.1972). We do not think so.
We said in Stephens:
Under section 3374-72, all minutes signed after ten days from the date of the meeting shall be valid from and after the date of such signing. Therefore, if any of the minutes of the September 13, September 23, September 27, or September 30, meetings (the latter recessing until October 4, 1971) were signed after October 18, the minutes containing the recessing orders did not become valid until such time as they were signed because more than ten days had elapsed. It would follow that there could not have been a valid meeting on October 4, 1971. ( 261 So.2d at 490 ).
Id.
¶ 28. So, a decision is not really a decision until final adjournment or approval of the minutes within thirty days of the meeting. See Miss.Code Ann. § 21-15-33 (Rev. 2007). Therefore, I must respectfully dissent from the majority’s opinion and request that Rankin Group be revisited.
. The Mississippi Supreme Court has mandated that any final action by municipal authorities or a board of supervisors is appealable under Mississippi Code Annotated section 11-51-75 (Rev.2002). See S. Cent. Turf, Inc. v. City of Jackson,
. Cawley was decided in 1973, before the revision of Mississippi Code Annotated section 21-15-33. The revision did not affect the definition of meeting; instead, it extended the required time for signing the minutes from ten days to thirty days.