Michael Tilghman v. City of Louisville, Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-00643-COA
MICHAEL TILGHMAN AND JENNIFER
TILGHMAN
v.
CITY OF LOUISVILLE, MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANTS
APPELLEE
2/10/2003
HON. JOSEPH H. LOPER, JR.
WINSTON COUNTY CIRCUIT COURT
WILLIAM T. MAY
TAYLOR TUCKER
CIVIL - REAL PROPERTY
CIRCUIT COURT DISMISSED APPEAL OF
ZONING CHANGE
AFFIRMED: 06/01/2004
BEFORE SOUTHWICK, P.J., IRVING AND GRIFFIS, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
On September 17, 2002, the mayor and board of aldermen for the City of Louisville granted a
request to re-zone a parcel of property that abutted property owned by Michael and Jennifer Tilghman.
The Tilghmans objected to the re-zoning and filed their appeal on December 9, 2002. The circuit court
dismissed the appeal on grounds that it was not timely filed and because it failed to meet the requirements
of Mississippi Code Annotated section 11-51-75. We affirm.
¶2.
Mississippi Code Annotated Section 11-51-75 (Rev. 2002) provides in pertinent part:
Any person aggrieved by a judgment or decision of the board of supervisors, or municipal
authorities of a city, town, or village, 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 board of supervisors
or of the municipal authorities. The clerk thereof shall transmit the bill of exceptions to the
circuit court at once . . . .
¶3.
The board granted the re-zoning request at its meeting on September 17, 2002. Although the
Tilghmans gave notice to the city clerk of their intention to appeal on October 21, 2002, the notice of
appeal was not filed with the circuit clerk until December 9, 2002.
¶4.
The Tilghmans argue that they did not receive a copy of the “written findings of the board” until
October 21, 2002. Thus, they claim that the ten day appeal period should begin to run on October 21.
On October 25, 2002, the Tilghmans' counsel sent a letter to the City’s counsel indicating their intention
to appeal, requesting a transcript of the zoning hearing and reserving all of their rights.
¶5.
Section 11-51-75 provides that the Tilghmans “may appeal within ten (10) days from the date of
adjournment” of the meeting where the decision was made. The meeting was adjourned on September 17;
thus, the appeal period would have expired on September 27. Since the appeal was not filed within ten
days from the day of adjournment of the board meeting, neither the circuit court, nor this Court, has
jurisdiction to consider the appeal. House v. Honea, 799 So. 2d 882, 883 (¶9) (Miss. 2001).
¶6.
Although the failure to file the appeal within ten days determines the outcome of this appeal, we
believe it particularly important to address the second issue -- the bill of exceptions. The circuit court also
dismissed the Tilghmans' appeal because they did not present a proper bill of exceptions to the circuit court.
Section 11-51-75 requires that the bill of exceptions "be signed by the person acting as president of board
of supervisors or of the municipal authorities." The City argues that the bill of exceptions was not in proper
form because it was signed only by the Tilghmans' counsel.
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¶7.
Recently, the supreme court held that the filing of a bill of exceptions “is merely an appellate record
and not necessary to commence an appeal.” Bowen v. DeSoto County Bd. of Supervisors, 852 So. 2d
21, 23 (¶4) (Miss. 2003) (citing Bowling v. Madison County Bd. of Supervisors, 724 So. 2d 431 (Miss.
Ct. App. 1998)). Thus, our courts have interpreted Mississippi Code Annotated Section 11-51-75 (Rev.
2002) to require the filing of an appeal within ten days, but have allowed the bill of exceptions to be filed
or amended within a reasonable time thereafter.
¶8.
For these reasons, the judgment of the circuit court is affirmed.
¶9.
THE JUDGMENT OF THE CIRCUIT COURT OF WINSTON COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS
AND CHANDLER, JJ., CONCUR.
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