E-Filed Document Feb 22 2016 15:38:11 2015-CA-00890 Pages: 8 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CASE NO. 2015-CA-00890 CITY OF JACKSON, MISSISSIPPI APPELLANT VS WILLIE B. JORDAN APPELLEE On Appeal from: The Circuit Court of Hinds County, Mississippi First Judicial District Cause number 251-08-00897 Hon. William Gowan presiding REBUTTAL BRIEF OF APPELLANT MONICA JOINER CITY ATTORNEY J. RICHARD DAVIS, MSB #5994 DEPUTY CITY ATTORNEY Office of the City Attorney 455 East Capitol Street Post Office Box 2779 Jackson, MS 39207-2779 (601)960-1799 (telephone) (601) 960-1756 (facsimile)
TABLE OF CONTENTS Table of Contents...i Table of Authorities...ii Argument...1 Issue A...1 Issue B...1 Issue C...2 Issue D...3 Conclusion...3 Certificate of Service...5 i
TABLE OF AUTHORITIES I. Cases: City of Jackson v. Doe, 68 So.3d 1285 (Miss. 2011)...2 Cook v. Board of Supervisors of Lowndes County, 571 So.2d 932 (Miss. 1990)...1 Scarborough v. City of Petal, 60 So.3d 934 (Miss Ct. App. 2010)...1, 2 II. Statutes: 11-46-9 Miss. Code 1972 as amended...2 11-55-71 Miss. Code 1972 as amended...1 ii
I. ARGUMENT In rebuttal, it must be noted, that Appellant s original Brief set forth four (4) issues on appeal. Appellee s Reply Brief citing only three different issues, reads as if he is trying to argue a different case with different facts and issues. A. Standing Issue First of all, as to the standing issue, he argues that an unfiled affidavit, rather than a recorded quit-claim deed cures the void deed executed by a minor, and by Appellant s own testimony in the deposition was unsupported by any consideration whatsoever, but cites no authority for this proposition. Given this, Appellant stands by the legal argument in its original brief. B. Failure to Timely Appeal Pursuant to 11-55-71 Miss. Code 1972 Next, Appellee repeatedly asserts that he was given no notice at all of the condemnation hearing, but yet admits in paragraph two (2) on page four (4) and again on page seven (7) of his brief that the notice was published twice in the Clarion Ledger newspaper. Therefore, this case is a case of insufficient process, not lack of process. In Appellee s argument regarding Appellant s second issue, that of whether Appellant s failure to file a proper Bill of Exceptions or seek injunctive relief merited dismissal of the case, he cites Scarborough v. City of Petal, 60 So.3d 934 (Miss Ct. App. 2010) for the proposition that the lack of notice makes the City s actions taken at the meeting of the City Council void. However, Scarborough makes no such rule. The other case Appellee cites in support of his argument is Cook v. Board of Supervisors of Lowndes County, 571 So.2d 932 (Miss. 1990). This case, besides being inapplicable factually as it deals with a specific statutory procedure regarding bids for ambulance services with preferences for private over public providers, also makes no such ruling as argued by Appellee. Therefore, as Appellee has failed to cite any reasonable -1-
authority in support of his argument against Appellant s second issue, Appellant stands by its original argument in its original brief. C. Immunity Arising out of a legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature Likewise in his reply brief on this issue, Appellee simply makes bald assertions that the City s arguments and authorities in support of its argument on the issue of immunity under 11-46- 9(1)(a) Miss. Code 1972 as amended, that is immunity arising out of a legislative or judicial action or inaction, or administrative action or inaction of legislative or judicial nature simply do not apply to this case. This despite the fact that the key issues in every case cited by Appellant was notice, or the lack thereof and subject matter jurisdiction versus in personam jurisdiction in determining if a judicial authority is entitled to immunity for judicial acts. His only real argument on the issue comes at the foot of Page 11 of his brief where he avers that the decision of the City cannot be viewed in a vacuum ignoring the failure of the City to conduct its ministerial function of providing the property owner required notice and opportunity to be heard before rendering its decision. This argument, coupled with the fact that the Appellee spent two and a half (2½) pages in his brief arguing discretionary function immunity versus ministerial duties, (see pages 8-10 Appellee s Brief) an issue Appellant has not raised on appeal indicates that Plaintiff does not understand that the grants of immunity under 11-46-9 (1)(a-v) Miss. Code 1972 as amended are disjunctive, meaning that if any one of the grants of immunity apply, the City is immune. See City of Jackson v. Doe, 68 So.3d 1285, at 1289 (Miss. 2011). The only authority Plaintiff cites for his position is Scarborough, supra. which, while factually similar, does not even address the issue of immunity for acts of a judicial nature as the issue was not raised at trial or on appeal in that case. Again, as Appellee has failed to -2-
put forth any reasonable argument supported by credible authority, the Appellant stands by his original argument in its original brief on this issue. D. Damages In rebutting Appellant s assertion that the trial court s award of damages were arbitrary and speculative, Appellee merely recites the exhibits entered into evidence, but no explanation or authority as to why trial court s award of damages was based on this evidence or more than mere speculation. This despite the fact that the Appellant showed through the introduction of the tax assessments, that the value of the property actually increased after the property was demolished and Appellee, put on no evidence of the value of the structure. Since Appellee failed to minimally rebut the Appellant s arguments and authorities on this issue, the Appellant stands by its initial argument in the original brief without supplementation. II. CONCLUSION The City maintains then, that the Appellee lacked standing to bring any action in tort against the City inasmuch as his only claim to title to the property was a void instrument given with no consideration and executed by a sixteen (16) year old minor. Secondly, Appellee s proper recourse would have been to appeal the decision of the City Council by filing an appeal by way of a Bill of Exceptions pursuant to 11-51-75 Miss. Code 1972 as amended, or alternatively, seek injunctive relief in Chancery. He did none of these. Most importantly, the City has immunity from this claim pursuant to 11-46-9(1)(a) Miss. Code 1972 as amended for claims arising out of a judicial action or inaction or actions or inactions of a judicial nature. Finally, if the Court finds that the Plaintiff had standing, that the trial court had jurisdiction to hear the matter filed as a tort action, and that the City does not have immunity for this claim, then the damages awarded by the trial court are arbitrary -3-
and not based on any credible evidence, or any reasonable formula or standard. WHEREFORE PREMISES CONSIDERED, the Appellant prays that the matter be reversed and rendered, or in the alternative, reversed and remanded for hearing on the issue of damages only. nd Respectfully Submitted, this the 22 day of February, 2016. THE CITY OF JACKSON, MISSISSIPPI MONICA JOINER, CITY ATTORNEY BY: /s/ J. Richard Davis J. Richard Davis, MSB #5994 Deputy City Attorney OF COUNSEL Office of the City Attorney 455 East Capitol Street Post Office Box 2779 Jackson, MS 39207-2779 (601)960-1799 (601)960-1756 (facsimile) -4-
CERTIFICATE OF SERVICE I, The undersigned, J. Richard Davis, do hereby certify that I have this date sent a true and correct copy of the above and foregoing document via U.S. Mail and/or the Mississippi EFS to the following at their regular address. Hon. B. Blake Teller Teller, Chaney, Hassell & Hopson, LLP 1201 Cherry Street Vicksburg, Mississippi 39183 Hon. William Gowan Hinds County Circuit Judge 407 E. Pascagoula St. Jackson, Mississippi 39201 nd So certified, this the 22 day of February, 2016. /s/ J. Richard Davis J. Richard Davis -5-