Freda Howell d/b/a Lickity Splitz v. Board of Supervisors of Jefferson Davis County, Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2010-CA-00717-COA
FREDA HOWELL D/B/A LICKITY SPLITZ
APPELLANT
v.
BOARD OF SUPERVISORS OF JEFFERSON
DAVIS COUNTY, MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
04/02/2010
HON. PRENTISS GREENE HARRELL
JEFFERSON DAVIS COUNTY CIRCUIT
COURT
VICTOR A. DUBOSE
ORVIS A. SHIYOU JR.
ROBERT E. SANDERS
CIVIL - CONTRACT
AFFIRMED THE BOARD OF
SUPERVISORS’ DECISION TO AWARD A
CONTRACT TO ANOTHER BIDDER
REVERSED AND REMANDED - 08/16/2011
EN BANC.
MAXWELL, J., FOR THE COURT:
¶1.
In 2009, the Jefferson Davis County (County) Board of Supervisors (Board) selected
Freda Howell, doing business as Lickity Splitz, as the “primary” bidder on a contract to
provide catered meals to the County’s prisoners. But after a dissatisfactory visit by the
sheriff and several Board members to Lickity Splitz’s facility, Howell received a letter by
the Board’s attorney notifying Howell that the County would be using the services of another
bidder. At its next meeting, the Board voted to use the “alternate” bidder. The Board did not
notify Howell of this meeting or provide her an opportunity to address the Board’s concerns.
¶2.
As the primary bidder, Howell had a vested property interest entitled to due-process
protection. We find the Board—and the circuit court in affirming the Board’s decision to use
the alternate bidder—erroneously relied on provisions in Mississippi Code Annotated section
31-7-13 (Rev. 2010) to justify depriving Howell of this interest without notice and a hearing.
Therefore, we reverse the judgment of the circuit court and remand this case for proceedings
consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
¶3.
Mississippi statute allows boards of supervisors to choose one of three methods for
feeding county prisoners: (1) contract with a local caterer through the bid process in
Mississippi Code Annotated section 31-7-13, (2) direct the sheriff to purchase all necessary
food and supplies, or (3) contract with the local public hospital. Miss. Code Ann. § 19-2573(1) (Rev. 2003). The Board chose the first method—contracting with a caterer.
¶4.
In December 2008, the Board requested bids to provide prisoner meals during 2009.
Howell timely submitted a bid, as did Bassfield Texaco and two other bidders. At its January
5, 2009 meeting, the Board chose Howell as the “primary” bid and Bassfield Texaco as the
“alternate” bid.
¶5.
After the January 5 meeting, the sheriff and several Board members visited Lickity
Splitz. On the location were two separate buildings the sheriff described as “snowball
stands.” Inside the buildings, they discovered there was no food, cooking utensils, pots,
pans, or commercial cooking equipment. Instead, it appeared Howell had transported cooked
food from an undisclosed location using her personal vehicle, which also contained her
2
personal effects. On January 9, 2009, the Board’s attorney mailed Howell a letter notifying
her that the Board “had decided” to use the alternate bidder because of the unsatisfactory
inspection. The Board met on January 20, 2009. The sheriff gave an oral report that he did
not believe Lickity Splitz’s food-preparation procedures were sanitary or that its facility met
the requirements for a commercial food establishment. The Board members who participated
in the site inspection stated they did not believe that Lickity Splitz had the ability to fulfill
the contract for prisoner meals. They also maintained they would be fearful of feeding
prisoners any food that had passed through Lickity Splitz’s facilities. Based on these reports,
the Board decided to use Bassfield Texaco’s services instead of Howell’s.
¶6.
Also on January 20, 2009, Howell filed a notice of appeal in the circuit court. The
notice of appeal stated Howell was appealing the Board’s decision to use the alternate bidder,
of which she had received notification on January 12, 2009.
¶7.
The circuit court found the Board’s January 5 and 20, 2009 minutes were not
sufficient. On December 29, 2009, it issued a remand order, instructing the Board to amend
its January 2009 minutes. Specifically, the circuit court ordered the Board to amend (1) its
January 5 minutes to include the dollar amount of Lickity Splitz’s and Bassfield Texaco’s
bids and (2) its January 20 minutes to include either a report or affidavits by the sheriff and
Board members who inspected Lickity Splitz’s facility. On January 19, 2010, the Board met
and amended its January 5 and 20, 2009 minutes to include the information requested in the
circuit court’s order.
¶8.
On February 8, 2010, Howell filed a second notice of appeal. The notice stated
Howell was appealing both (1) the Board’s decision to rescind its award of the bid to Howell
3
and (2) the Board’s amendments of its January 5 and January 20, 2009 minutes. Howell
acknowledged her notice was more than ten days after the January 19, 2010 meeting but
claimed her appeal was timely because “it is the Appellant’s information that this decision
[to amend the minutes] has not yet been entered on a book and page of the Board’s minutes.”
¶9.
The circuit court accepted Howell’s second notice of appeal as timely. Due to
“logistical difficulty” in assigning the January 19, 2010 minutes a book and page number,
the circuit court stated it would “ignore” the “procedural issue” of Howell’s failure to comply
with the ten-day requirement under Mississippi Code Annotated section 11-51-75 (Rev.
2002).
¶10.
On April 5, 2010, the circuit court issued a final ruling. It affirmed both (1) the
Board’s January 20, 2009 decision to the use the alternate bidder under Mississippi Code
Annotated section 31-7-13(f) and (2) its January 19, 2010 amendments of the January 2010
minutes.
¶11.
Howell further timely appealed to this court.
DISCUSSION
¶12.
Howell argues the Board’s actions were illegal for several reasons. Although we
address her arguments below, our two main concerns are (1) the timing of the two notices of
appeal and (2) the Board’s failure to notify Howell of the January 20, 2009 meeting where
it decided to use the alternate bidder.
I.
¶13.
The Notices of Appeal
Mississippi Code Annotated section 11-51-75 provides, in part, that: “Any person
aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of
4
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[.]” Non-compliance with section 11-51-75 is not a “procedural issue” that may be
ignored. Instead, compliance is “mandatory and jurisdictional.” E.g., Newell v. Jones
County, 731 So. 2d 580, 582 (¶10) (Miss. 1999).
A.
¶14.
The First Notice
Howell filed her first notice of appeal on January 20, 2009, the same day the Board
decided to use Bassfield Texaco’s services instead of Howell’s. But her notice stated she
“was notified of such decision by letter of the Board’s Attorney dated January 9, 2009, which
was received by [her] on January 12, 2009.”
¶15.
A board of supervisors “can act only as a body, and its act must be evidenced by an
entry on its minutes.” Thompson v. Jones County Cmty. Hosp., 352 So. 2d 795, 796 (Miss.
1977); Lee County v. James, 178 Miss. 554, 559, 174 So. 76, 77 (1937) (holding “boards of
supervisors can bind counties, or districts therein, only when acting within their authority and
in the mode and manner by which this authority is to be exercised under the statutes”).
Because, under Thompson, the January 9 letter was neither a Board decision nor evidence of
a Board decision, Howell could not appeal from the letter under section 11-51-75. Sanford
v. Bd. of Supervisors, Covington County, 421 So. 2d 488, 490 (Miss. 1982) (“[U]ntil such
time as the Board has issued a final order . . . there can be no appealable final judgment.”).
Instead, the first appealable act of the Board was made during its January 20, 2009 meeting,
as evidenced by the minutes from that meeting. Thompson, 352 So. 2d at 796.
¶16.
If all the Board had done was send the letter without taking any real action—or had
5
made a different decision at its January 20, 2009 meeting than the letter indicated it
would—Howell’s notice would not be compliant with section 11-51-75. But we cannot
overlook the fact the Board took the very action indicated by the letter. We find this
particular circumstance analogous to a trial court announcing how it intends to rule but not
entering a final judgment until after a party files a notice of appeal. Our appellate rules
provide: “A notice of appeal filed after the announcement of a decision or order but before
the entry of the judgment or order shall be treated as filed after such entry and on the day of
the entry.” M.R.A.P. 4(b). Therefore, despite indications Howell filed her notice of appeal
before the Board acted, we find the trial court properly viewed her notice of appeal as being
filed after, and in response, the Board’s January 20, 2009 action. See City of Biloxi v.
Hilbert, 597 So. 2d 1276, 1279 (Miss. 1992) (applying the Mississippi Rules of Appellate
Procedure to determine the scope of the circuit court’s appellate jurisdiction under section
11-51-75).
B.
¶17.
The Second Notice of Appeal
The circuit court ignored the fact Howell filed her second notice twenty days after the
Board’s January 19, 2010 meeting because the Board’s minutes had not yet been assigned
a book and page number. But in previous cases this court has made clear this circumstance
in not relevant to whether Howell’s second notice was timely. See Rankin Group, Inc. v. City
of Richland, 8 So. 3d 259, 260-61 (¶¶6-12) (Miss. Ct. App. 2009) (expressly rejecting the
argument that the ten-day period does not begin to run until the minutes from a board
meeting are signed); Tilghman v. City of Louisville, 874 So. 2d 1025, 1026 (¶¶4-5) (Miss. Ct.
App. 2004) (similarly rejecting the argument the ten-day period did not begin to run until the
6
party adversely affected by the City’s decision received a written copy of Board’s findings).
The ten-day period for appeal begins to run when a board adjourns the meeting during which
the decision being appealed is made. Rankin Group, 8 So. 3d at 261 (¶12); Tilghman, 874
So. 2d at 1026 (¶¶4-5).
¶18.
Howell did not file her second notice of appeal within ten days of the Board’s January
19, 2010 meeting in which the Board amended its minutes. But Howell’s appeal does not
depend on this untimely second notice because the circuit court retained jurisdiction pending
compliance with its remand order. “A circuit court, sitting as an appellate court, enjoys the
same authority [as the Mississippi Supreme Court or Court of Appeals] to remand a case to
an inferior body for record supplementation or a factual determination while at the same time
retaining jurisdiction over both the parties as well as the subject matter.” Hilbert, 597 So.
at 1279 (referring to the authority granted in M.R.A.P. 14(b)). As in Hilbert, the circuit
court’s December 2009 remand order was not a final judgment to affirm or reverse the
Board’s decision. Id. Instead, it ordered the Board to include further findings in its minutes
because the record before the circuit court was inadequate. Therefore, the circuit court
retained jurisdiction through the entrance of its final judgment in April 2010. Id.
¶19.
Thus, we are satisfied the circuit court had appellate jurisdiction over the Board’s
January 20, 2009 and January 19, 2010 actions.
II.
The Board’s Decision to Use the Alternate Bidder
A.
¶20.
Standard of Review
Appellate review of a county board’s decision is limited. Preferred Transp. Co., LLC
v. Claiborne County Bd. of Supervisors, 32 So. 3d 549, 551 (¶5) (Miss. Ct. App. 2010)
7
(citing Billy E. Burnett, Inc. v. Pontotoc County Bd. of Supervisors, 940 So. 2d 241, 242-43
(¶5) (Miss. Ct. App. 2006)). A decision or order of a county board of supervisors will be
upheld unless the order was not supported by substantial evidence, was arbitrary or
capricious, was beyond the board’s scope or power, or was in violation of the aggrieved
party’s constitutional or statutory rights. Robinson v. Lincoln County Bd. of Supervisors,
973 So. 2d 288, 289-90 (¶6) (Miss. Ct. App. 2008) (citing Ladner v. Harrison County Bd.
of Supervisors, 793 So. 2d 637, 638 (¶6) (Miss. 2001)).
B.
¶21.
No Illegal Action Prior to January 20, 2009
Howell strongly insists the Board’s decision to use the alternate bidder is void because
it was illegally made outside a properly convened meeting. She claims the Board acted
sometime between its January 5, 2009 decision awarding her the contract and the January 9,
2009 letter. She relies on the letter’s language that the Board “has decided” to use the
alternate bidder.
¶22.
We find the letter is not evidence of an illegal action by the Board. Thompson, 352
So. 2d at 796 (holding a board of supervisors “can only act as a body, and its act must be
evidenced by an entry on its minutes”). “[T]he decisions to be executed or the contracts to
be awarded by the board must be determined or decided upon only in or at a lawfully
convened session, and the proceedings must be entered upon the minutes, of the board or
commission.” James, 178 Miss. at 558, 174 So. at 77. Therefore, the Board could not make
a decision regarding Howell’s contract outside of a properly convened meeting. We would
view Howell’s argument differently had the Board merely requested its attorney send a letter
before it began using Bassfield Texaco’s services. But the Board followed through and
8
actually “acted” in a properly convened meeting on January 20, 2009. And it is this action,
not some alleged void action, we now consider.1
C.
¶23.
No Improper Amendment of the Board’s Minutes
We also find the Board properly amended its January 5 and 20, 2009 minutes, in
compliance with the circuit court’s order.
¶24.
In Huey v. Stockstill, 730 So. 2d 539, 541 (¶7) (Miss. 1999), a board of supervisors
rejected the lowest bidder due to ethical considerations. Two months later, it amended its
minutes to provide a more detailed explanation of what happened at the meeting where the
lowest bidder was rejected. Id. at 543 (¶19). The Mississippi Supreme Court affirmed,
holding “that a governing body may, at a subsequent meeting, amend the minutes of the prior
meeting to reflect what actually occurred on the first occasion.” Id. at 544 (¶20); see also
Sunland Publ’g Co. v. City of Jackson, 710 So. 2d 879, 881 (¶6) (Miss. 1998) (recognizing
that a trial court sitting in an appellate capacity may remand a decision of a governmental
body to that body for more detailed findings where the record does not adequately support
the governmental decision).
¶25.
As in Sunland, the circuit court remanded the issue of the Board’s January 5 and 20,
1
We also reject Howell’s argument the sheriff and members of the Board had no right
to perform a site visit of Lickity Splitz’s facility. As the jailer of the County, the sheriff has
the duty to see that his prisoners are properly fed. Miss. Code Ann. § 19-25-71(1) (Rev.
2003). See also Miss. Att’y Gen. Op. No. 93-0166, 1993 WL 669226, Dyson (March 17,
1993) (“It is the responsibility of the sheriff to provide wholesome and sufficient food and
drink for prisoners that are in his custody.”). And section 19-25-73(1) authorizes the
Board’s involvement in feeding the prisoners. Miss. Code Ann. § 19-25-73(1). Therefore,
the inspection was a proper action taken by the sheriff and Board members to carry out this
duty.
9
2009 decisions to incorporate more detailed findings into the record. And, as in Huey, the
Board complied by providing a more accurate and detailed explanation of its decisions
without inserting new reasons why it selected and then rejected Howell. We find this to be
a proper exercise of the Board’s authority. Huey, 730 So. 2d at 543-44 (¶¶20-21).
D.
¶26.
No Notice and Opportunity to be Heard
Although we do not find the Board acted illegally prior to its January 20, 2009
meeting or improperly amended the minutes from that meeting, we do find the Board should
have provided Howell notice of the meeting and an opportunity to address the sheriff’s and
Board’s concerns over Lickity Splitz’s services.
¶27.
In designating Howell as the primary bidder, the Board conferred on Howell a vested
property interest entitled to the constitutional protection of due process. See Nelson v. City
of Horn Lake, 968 So. 2d 938, 944 (¶22) (Miss. 2007) (relying on Shepard v. City of
Batesville, 2007 WL 108288, at *8 (N.D. Miss. January 8, 2007), which found the actual
award of a contract under section 31-7-13 “gave the plaintiff a protected property interest”).
¶28.
This is not a case where Howell, indisputably the lower bidder, was not selected as
the “lowest and best bidder” under Mississippi Code Annotated section 31-7-13(d)(i). Cf.
Nelson, 968 So. 2d at 944 (¶23); see also Billy E. Burnett, Inc., 940 So. 2d at 245 (¶13)
(finding the board did not act arbitrarily and capriciously when it rejected lowest bidder).
If it were, then the circuit court would have been correct that all Howell was entitled to was
section 31-7-13(d)(i)’s requirement that the Board’s minutes provide “detailed calculations
and narrative summary showing that the accepted bid was determined to be the lowest and
best bid[.]” Nelson, 968 So. 2d at 945 (¶27) (quoting Miss. Code Ann. § 31-7-13(d)(i)).
10
Instead, because the Board actually awarded Howell the contract, she was entitled to notice
and a hearing before her interest in the prisoner-meals contract was deprived. Shepard, 2007
WL 108288, at *9; cf. Harris v. Miss. Valley State Univ., 873 So. 2d 970, 985 (¶40) (Miss.
2004) (holding interest in public employment contract entitled terminated state employee to
notice and adequate opportunity to be heard at some kind of hearing); Univ. of Miss. Med.
Ctr. v. Hughes, 765 So. 2d 528, 540 (¶41) (Miss. 2000) (citing Goss v. Lopez, 419 U.S. 565,
581 (1975)) (holding that the “disciplinary dismissal [of a public-university student] requires
that the student be given oral or written notice of the charges and evidence against him and
the opportunity to present his side of the story”).
¶29.
This is also not a case where section 13-7-13(f) permitted the Board to use the
alternate bidder merely upon showing Howell could not provide the catered meals. Section
13-7-13(f) states:
When necessary to ensure ready availability of commodities for public works
and the timely completion of public projects, no more than two (2) alternate
bids may be accepted by a governing authority for commodities. No purchases
may be made through use of such alternate bids procedure unless the lowest
and best bidder cannot deliver the commodities contained in his bid. In that
event, purchases of such commodities may be made from one (1) of the
bidders whose bid was accepted as an alternate.
Miss. Code Ann. § 31-7-13(f) (emphasis added). Based on a plain reading of the statute, this
alternative-bid provision does not apply to all commodities but only “commodities for public
works.” “Public works” is defined as “[s]tructures (such as roads or dams) built by the
government for public use and paid for by public funds.” Black’s Law Dictionary 1639 (8th
ed. 2004). Because Howell was not providing “commodities for a public works,” we find
this was not the type of contract subject to the alternative-bid provision. Cf. Shepard, 2007
11
WL 108288, at *1, 3-4 (applying section 31-7-13(f) to a contract with a construction
company for the supply of commodities used in the construction of public works).
¶30.
Our holding is limited to finding the circuit erred in applying 31-7-13(f) to affirm the
Board’s termination of Howell’s contract without notice and a hearing. We pass no judgment
on the substance of the Board’s decision to stop using Howell’s contracted services,
acknowledging the Board may have had other legal reasons for not buying food from Howell.
¶31.
Because the Board violated Howell’s constitutional right to due process, we must
reverse the circuit court’s judgment, which affirmed the Board’s decision to end the contract
with Howell. Robinson, 973 So. 2d at 289-90 (¶6). We remand this matter to the circuit
court to provide Howell with proceedings that afford her procedural due process—namely,
the opportunity to defend against the Board’s claims that it justifiably stopped using her meal
service—as well as comply with section 31-7-13.
¶32.
Although Howell asked this court to reverse and render—and award her contract
damages and consequential costs and fees—we find any award of damages inappropriate at
this stage. Based on the determination by the sheriff and Board members who visited Lickity
Splitz’s facilities that Howell’s business was unsanitary and unsuitable for commercial food
preparation, we cannot say, had the Board provided Howell with a hearing, it would have
been unjustified in ending the contract. Therefore, any award for contract damages would
be premature. And to recover more than nominal damages for a procedural due-process
violation, Howell “must show that [her] injuries resulted from the denial of due process
itself” (i.e., from not being allowed to appear before the Board) and not merely from the
underlying decision of the Board. Hill v. City of Pontotoc, Miss., 993 F.2d 422, 425 (5th Cir.
12
1993) (citing Carey v. Piphus, 435 U.S. 247, 263 (1978)). On remand, Howell may present
evidence of both her alleged contract damages and any actual damages resulting from the
procedural due-process violation.
¶33. THE JUDGMENT OF THE JEFFERSON DAVIS COUNTY CIRCUIT COURT
IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLEE.
LEE, C.J., MYERS, BARNES AND ISHEE, JJ., CONCUR. RUSSELL, J.,
CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN
OPINION. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY GRIFFIS, P.J., AND ROBERTS, J., AND JOINED IN PART BY
RUSSELL, J. CARLTON, J., NOT PARTICIPATING.
IRVING, P.J., DISSENTING:
¶34.
The majority finds that the Board of Supervisors of Jefferson Davis County (Board)
violated Freda Howell’s due process rights when it unilaterally, without notice to her,
abrogated her contract to provide meals to the prisoners of the county and awarded the
contract to an alternate bidder. I agree. The majority then reverses the judgment of the
circuit court, which had affirmed the Board’s actions, and remands the case to the circuit
court “to provide Howell with proceedings that afford her procedural due process—namely,
the opportunity to defend against the Board’s claims that it justifiably stopped using her meal
service—as well as comply with section 31-7-13.” Majority opinion at (¶31). I disagree
with the remedy mandated by the majority. Therefore, I dissent. I believe that the judgment
of the circuit court should be reversed and rendered and the case remanded for a
determination of damages and costs pursuant to the law of contracts and Mississippi Code
Annotated section 11-51-75 (Rev. 2002).
13
¶35.
On January 5, 2009, the Board accepted a bid from Howell, doing business as Lickity
Splitz, to be the primary provider of catered meals to county prisoners at the rate of $11 per
prisoner, per day. Four days later, the Board’s attorney sent a letter to Howell advising her
that the Board had decided to use the services of Bassfield Texaco, which had also submitted
a bid and had been accepted by the Board as the alternate provider of meals for the county’s
prisoners. Bassfield Texaco’s bid was for $13.10 per prisoner, per day. Apparently, the
Board had not, in an official meeting, authorized the Board’s attorney to send the letter, and
the record does not provide any explanation as to the basis for the attorney’s authority to send
it.2 Nevertheless, in an official meeting of the Board on January 20, 2009, the Board ratified
the actions of its attorney in sending the letter. Also, on the same date, the Board entered an
order, finding as follows:
Whereas, based on the negative report received from Sheriff McCullum and
the representatives of the Board regarding the conditions of said facilities, the
Board has found that Lickity Splitz cannot deliver the commodities contained
in their bid.
IT IS THEREFORE HEREBY ORDERED AND RATIFIED that the alternate
bidder, Bassfield Texaco[,] shall provide prisoner meals for the County for the
year 2009 or until further order of the Board.
¶36.
In the meantime, unaware of the Board’s action on January 20, Howell, acting
pursuant to the letter that she had received from the Board’s attorney, appealed to the circuit
2
At some point following the January 5 meeting, Sheriff Henry McCullum and two
members of the Board inspected Howell’s business and determined that it was not suitable
for the preparation of the meals. Apparently, it was following this inspection when the Board
unofficially decided to use the alternate bidder, thereby prompting the letter to Howell.
However, the advertisement for bids issued by the Board did not make acceptance of the bids
contingent upon an inspection of the premises of the successful bidder.
14
court, which did not render a decision until December 29, 2009. In its December order, the
circuit court remanded the matter to the Board with instructions to the Board to amend, nunc
pro tunc, its January 20, 2009 minutes to reflect the amounts of Howell’s and Bassfield
Texaco’s bids and the report of Sheriff McCullum and the representatives of the Board who
had inspected Howell’s facilities.
¶37.
On January 19, 2010, the Board complied with the order of the circuit court by issuing
two orders nunc pro tunc: one amending its January 5, 2009 minutes to reflect the bid
amounts of Howell and Bassfield Texaco and one amending its January 20, 2009 minutes to
reflect an affidavit from the Board’s president detailing the findings of the group that visited
Howell’s business after accepting her bid on January 5, 2009.
¶38.
On April 2, 2010, the circuit court found that the Board’s decision—that Howell could
not deliver the commodities contained in her bid—was fairly debatable and that the circuit
court could not substitute its judgment for that of the Board. Therefore, the circuit court,
finding that the Board’s decision was not arbitrary and capricious, affirmed the Board’s
decision to use the alternate bidder, Bassfield Texaco, to provide meals to the prisoners of
Jefferson Davis County. From a review of the circuit court’s December 29 order remanding
the matter to the Board, it is clear that undergirding the court’s decision to affirm the actions
of the Board is the court’s belief that the Board’s action is justified under Mississippi Code
Annotated section 31-7-13(f) (Rev. 2010), which states:
When necessary to ensure ready availability of commodities for public works
and the timely completion of public projects, no more than two (2) alternate
bids may be accepted by a governing authority for commodities. No purchases
may be made through [the] use of such alternate[-]bids procedure unless the
lowest and best bidder cannot deliver the commodities contained in his bid.
15
In that event, purchases of such commodities may be made from one (1) of the
bidders whose bid was accepted as an alternate.
¶39.
I agree with the majority that the circuit court erred in relying upon section 31-7-13(f)
as justification for the Board’s unilateral abandonment of its contract with Howell after it had
accepted her bid. Providing meals to prisoners does not involve “commodities for public
works.” Despite holding that the circuit court erred in relying upon section 31-7-13(f) to
affirm the Board’s actions, the majority mysteriously states, without citation of authority:
“[W]e cannot say, had the Board provided Howell with a hearing, it would have been
unjustified in ending the contract. Therefore, any award for contract damages would be
premature.” Majority opinion at (¶32).
¶40.
It should be noted that there is no evidence in the record that Howell breached her
contract to provide the meals. Rather, the evidence is that she was never given a chance to
provide the meals. I know of no authority that would allow the Board, as it did here, to
change its mind and unilaterally abandon its obligation to honor the resulting contract with
Howell when it accepted her bid. She was entitled not to a hearing to prove that she could
perform the contract, but to the opportunity to perform. Had she been unable to perform,
then she would have been in breach of contract, and in that event, the Board would have been
justified in obtaining performance from another, with Howell being responsible for any
damages the Board may have suffered because of her breach.3 Therefore, I agree with
3
The record reflects that at the time of Howell’s bid, she was in her second, nonconsecutive year of providing meals to the prisoners in Covington County, Mississippi,
pursuant to a contract with that county. The record also reflects that she had a current food
permit from the Mississippi State Department of Health to operate a facility at 102
Covington Plaza, Collins, Mississippi 39428. I should also note that the advertisement for
16
Howell that she is entitled to damages occasioned by the Board’s breach of their contract.
¶41.
Pursuant to section 11-51-75, the circuit court, in its initial order, should have ordered
the Board to honor its contractual obligations with Howell rather than remand the case to the
Board for amendment of the Board’s minutes. Since specific performance is not now
possible, Howell is entitled to an award of compensatory damages under the law of contracts.
City of Durant v. Laws Constr. Co., 721 So. 2d 598, 606 (¶34) (Miss. 1998).
I would
reverse and render the judgment of the circuit court and remand this case to the circuit court
for a determination of damages and costs in accordance with the requirements of section 1151-75 and City of Durant. For the reasons presented, I dissent.
GRIFFIS, P.J., AND ROBERTS, J., JOIN THIS OPINION. RUSSELL, J.,
JOINS THIS OPINION IN PART.
bids issued by the Board contained no provision as to where the meals were to be prepared.
17
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.