IN THE SUPREME COURT OF MISSISSIPPI

E-Filed Document Sep 21 2016 14:36:53 2015-CA-01865-SCT Pages: 20 IN THE SUPREME COURT OF MISSISSIPPI PEMBERTON PROPERTIES, LTD d/b/a PEMBERTON APARTMENTS, PARK VILLA, LLC d/b/a EAST VILLA APARTMENTS, PEARL PARTNERS, LP d/b/a COLONY PARK APARTMENTS, COLONY PARK II, LLC d/b/a GRANDE AT COLONY PARK APARTMENTS, ALBERT MOORE HOME BUILDERS, INC. d/b/a COLONIAL TERRACE APARTMENTS, WOOD GLEN, LLC d/b/a WOOD GLEN APARTMENTS, STEVE MAULDING d/b/a BAVARIAN GARDEN APARTMENTS, STEVE MAULDING d/b/a PEARL MANOR APARTMENTS, SHEILA MAULDING d/b/a 468 PLACE TOWNHOMES, WPB PROPERTIES, LLC d/b/a FOX RUN APARTMENTS APPELLANTS V. NO. 2015-CA-01865 THE MAYOR AND BOARD OF ALDERMEN OF THE CITY OF PEARL, MISSISSIPPI APPELLEE APPELLANTS REPLY BRIEF APPEAL FROM THE CIRCUIT COURT OF RANKIN COUNTY, MISSISSIPPI ORAL ARGUMENT IS REQUESTED COUNSEL FOR APPELLANTS STEVE H. SMITH SAMAC RICHARDSON STEVEN H. SMITH, PLLC P.O. BOX 222 4316 OLD CANTON ROAD, SUITE 200 BRANDON, MS 39043 JACKSON, MS 39211 TELEPHONE: (601) 826-3400 TELEPHONE: (601) 987-4800 FACSIMILE: (601) 987-6600

TABLE OF CONTENTS Table of Contents... i Table of Cases... ii, iii Appellants Response to Appellee s Brief...1 I. Overview...1 II. Factual Deficiencies of Pearl s Appellee s Brief...1 III. IV. How and when an ordinance becomes effective, final and appealable operates differently from how and when a decision/order/resolution becomes effective, final and appealable in relation to Section 11-51-75, Miss. Code of 1972...4 Procedural aspects to be considered in filing and perfecting an appeal under and pursuant to Section 11-51-75, Miss. Code of 1972...10 Conclusion...14 Certificate of Service...16 i

TABLE OF CASES CASES: Alias v. City of Oxford, 70 So.3d 1114, 1120-1121 (Miss. Ct. App. 2010)...6, 10 Ball v. City of Natchez, 983 So.2d 295 (Miss. 2008)...9 Bowen v. DeSoto County Board of Supervisors, 852 So.2d 21, 22 (Miss. 2003)...9, 11, 12, 13 Bowling v. Madison County Board of Supervisors, 724 So.2d 431, at 432 ( 50) Miss. Ct. App. 1998)...9 City of Carthage v. Walters, 375 So.2d 228 (Miss. 1979)...2, 4, 5, 6, 7, 8, 10 City of Jackson v. The Estate of Otha Stewart, Deceased, 939 So.2d 758 (Miss. 2005)...1 City of Madison v. Shanks, 793 So.2d 576 (Miss. 2000)...9 Evans v. City of Jackson, 202 Miss. 9, 15, 30 So.2d 315, 317 (Miss. 1947)...10 House v. Honea, 799 So.2d 882, 883 (Miss. 2001)...6, 10 J. H. Parker Constr. Co., Inc. v. City of Natchez, 721 So.2d 671 (Miss. Ct. App. 1998)...9 Lowndes County v. McClanahan, 161 So.3d 1052, 1053-1056 ( 1, 5, 13, 16) Oxford v. Inman, 405 So.2d 111 (Miss. 1981)...6, 7 Powell v. Municipal Election Comm. Of the Town of Isola, Mississippi; 156 So.3d 250 (Miss. 2014)...3, 4, 11, 12 Rankin Group, Inc. v. City of Richland, 8 So.3d 257...4, 5 Reed v. Adams, 236 Miss. 333, 111 So. 2d 222, 340 (Miss. 1959)...4, 11, 12 Sanford v. Board of Supervisors, Covington County, Mississippi, 421 So.2d 488 at 489 and 490, (Miss. 1982)...9 South Central Turf v. City of Jackson, 526 So.2d 558, 562 (Miss. 1988)...9 Southland Mgmt. v. City of Columbia, 744 So.2d 774, 775 (Miss. 1999)...10 ii

OTHER AUTHORITIES: Section 11-51-75, Miss. Code of 1972...4, 5, 7, 8, 9, 10, 11, 12, 13, 14 Section 21-13-11, Miss. Code of 1972...2, 3, 4, 5, 6, 7, 8, 9, 10, 14 Section 21-15-33, Miss. Code of 1972...7, 10 Section 21-19-11, Miss. Code of 1972...4 iii

I. OVERVIEW The Property Owners do not intend to address the disparaging and unprofessional comments made by Pearl s attorney throughout Pearl s entire Appellee s Brief. Nor do the Property Owners intend to respond to the five Fallacies which were concocted by Pearl so as to totally misrepresent the Property Owners factually and legally supported arguments. The Property Owners would simply advise the Court that such comments and conduct by Pearl s attorney are reminiscent of the same type of comments and conduct directed to this Court by Pearl s attorney in the case of City of Jackson v. The Estate of Otha Stewart, Deceased, 939 So.2d 758 (Miss. 2005). II. FACTUAL DEFICIENCIES OF PEARL S APPELLEE S BRIEF In an effort to distract and confuse this Court, Pearl has substantially misrepresented (1) the facts of this case, (2) the pleadings filed in the lower court, (3) the content and effective date stated on the face of the RHCO, and (4) the content of the record before this Court. Unlike the scant, totally unsupported and misrepresented factual assertions contained on pages 1-7 of Pearl s Brief, each and every factual allegation, date, time frame, chronology of events, content of pleadings and/or filings in the lower court and contained in Appellants Brief are cited to and supported by the record and/or record excerpts before this Court. The Property Owners think it obvious and disingenuous, at best, that Pearl never once in its brief advised this Court that the RHCO had two (2) different contingencies attached to the date 1

upon which it would become effective. 1 First, it had to be published, which Pearl did not do for some 445 days after the date of adoption on June 27, 2013. (RE 45-53; R 32-36) (Publication date September 17, 2014; R 171) Second, the passage of thirty (30) days after the ordinance was published. The first contingency/condition, i.e. publication, is required under Section 21-13-11, Miss. Code of 1972 before an ordinance becomes effective. City of Carthage v. Walters, 375 So.2d 228 (Miss. 1979); Section 21-13-11, Miss. Code of 1972. The second contingency/condition is also consistent with language contained in Section 21-13-11, Miss. Code of 1972 which states, No ordinance shall be in force for one (1) month after its passage. The attorney for Pearl in the case at bar is the same attorney who originated and prepared the RHCO and placed the two (2) contingencies in the RHCO. Pearl also never took issue with and did in fact admit that the first and only publication date of the RHCO was September 17, 2014 (R171). The Proof of Publication of the RHCO also verifies publication on September 17, 2014 (RE 82-87;R 65-69). In addition, Pearl also never addressed or even acknowledged in its brief (1) the statutory prerequisites contained in Section 21-13-11, Miss. Code of 1972, which must be adhered to before an ordinance becomes effective, (2) the finality which any municipal action must possess before it can even be appealed, (3) the fact that Pearl waited 445 days before it published the RHCO, (4) Carthage v. Walters, supra, which clearly establishes that an ordinance does not become effective until it is first published, (even if the publication date is six and one-half (6 ½) years after it is adopted) (5) that the Property Owners filed their Notice of Appeal and Intent to File Bill of Exceptions ( Notice of Appeal ) within nine (9) days after the RHCO was first published, (6) that the Property Owners filed their Bill of Exceptions with Pearl within a reasonable time of filing 1 SECTION 5. This ordinance shall become effective after passage and thirty days following publication. 2

their Notice of Appeal, (7) that Pearl refused to forward and file the Property Owners Notice of Appeal or Bill of Exceptions with the Rankin County Circuit Court (RE 169-170; R 72-73)), and that (8) this Court, sitting en banc, decided Powell v. Municipal Election Comm. Of the Town of Isola, Mississippi; 156 So.3d 250 (Miss. 2014), on December 11, 2014, less than ninety (90) days after the Property Owners filed their Notice of Appeal on September 26, 2014. The chronology of events/filings which are unequivocally established in the record and which bear most directly on the issues before this Court are as follows: (1) RHCO adopted June 27, 2013 (2) RHCO first published September 17, 2014 (3) Conditions on the effective Publication and 30 days thereafter date of the RHCO (4) Effective date of ordinance October 17, 2014 under terms of RHCO (5) Requirement of Section 21-13-11, Publication Miss. Code of 1972 before RHCO becomes effective (6) Property Owners Notice of Appeal September 26, 2014 and Intent to File Bill of Exceptions filed with Pearl (7) Property Owners Bill of Exceptions November 14, 2014 filed with Pearl (8) Property Owners Complaint January 27, 2015 for Writ of Mandamus filed (9) Motion Transcript in Circuit Court July 6, 2015 (10) Circuit Court Order and Judgment July 16, 2015 of Dismissal (11) Property Owners Motion for July 27, 2015 Reconsideration 3

(12) Circuit Court s Order Denying December 4, 2015 Plaintiffs Motion to Reconsider and/or Alter or Amend Judgment These facts, which, when coupled with (1) Section 21-13-11, Miss. Code of 1972, (2) Carthage v. Walters, supra and (3) and the ministerial duty(s) and course of conduct required of governing authorities when presented with a bill of exceptions, Reed v. Adams, 236 Miss. 333, 111 So. 2d 222, 340 (Miss. 1959); Powell v. Municipal Election Comm. Of the Town of Isola, Mississippi, supra, sets this case apart and calls for a reversal of the Circuit Court s ruling. III. HOW AND WHEN AN ORDINANCE BECOMES EFFECTIVE, FINAL AND APPEALABLE OPERATES DIFFERENTLY FROM HOW AND WHEN A DECISION/ORDER/RESOLUTION BECOMES EFFECTIVE, FINAL AND APPEALABLE IN RELATION TO SECTION 11-51-75, MISS. CODE OF 1972 Contrary to Pearl s wishful thinking, Rankin Group, Inc. v. City of Richland, 8 So.3d 257 (Miss. Ct. of App. 2009) is not controlling in the case at bar. Every case cited by Pearl deals with the effective date of a decision, order or resolution, in relation to when the ten (10) day time frame begins to run under Section 11-51-75, Miss. Code of 1972; and not the effective date of an ordinance pursuant to Section 21-13-11, Miss. Code of 1972. Rankin Group, Inc. v. Richland, supra specifically deals with the decision of the Board of Aldermen of Richland, Mississippi to demolish the structure on a parcel of property owned by Rankin Group, Inc. under the City s authority to remove dilapidated buildings pursuant to Section 21-19-11, Miss. Code of 1972 (Rev. 2007). The Property Owners argument on appeal of the City s decision was that the City s decision was not final and appealable until the minutes of the adjourned meeting of September 11, 2007 were adopted and approved. Rankin Group filed its Bill of Exceptions with the City on September 27, 2007, 16 days after the September 11, 2007 meeting was recessed. 4

The Appellant s argument in Rankin Group was that the ten (10) day time frame within which to appeal under Section 11-51-75, Miss. Code of 1972 did not begin to run until the minutes of the meeting at which the decision was made were approved and signed. Rankin Group s argument has never been the law in Mississippi and the Court of Appeals ruled appropriately. The Rankin Group decision, like all of the other cases cited by Pearl, deals only with the effective date of a decision, order or resolution in relation to when the ten (10) day time frame begins to run under Section 11-51-75, Miss. Code of 1972. Rankin Group does not deal with the adoption of an ordinance, nor how and when an ordinance becomes effective under and pursuant to Section 21-13-11, Miss. Code of 1972; much less when the ten (10) day time frame begins to run in relation to when an ordinance becomes effective. The Property Owners submit that the factual scenario in Rankin Group is not even remotely similar to the factual scenario before this Court, nor the controlling law to be applied. It is important to note that Pearl did not cite even one case that deals with the adoption of an ordinance and its effective date under Section 21-13-11, Miss. Code of 1972. The Property Owners submit that Pearl is void of any case law or state statute to support its contention that the adoption of an ordinance, in and of itself, is enough to make it effective. Pearl presented no legal authority in support of this argument because the case of Carthage v. Walters, supra, establishes a rule of law that is completely contrary to Pearl s argument on this point. Section 21-13-11, Miss. Code of 1972 contains four (4) requirements that must be met before an ordinance becomes effective 2, and publication is unequivocally required. This Court made it clear in the case of Carthage v. Walters, supra that before an ordinance becomes effective, 2 Section 21-13-11, Miss. Code of 1972 states in part, Every ordinance passed by the governing body of a municipality, except as is otherwise provided by law, shall be certified by a municipal clerk, signed by the mayor or a majority of all the members of the governing body, recorded in the ordinance book, and published at least one time in some newspaper 5

it must first be published. In fact, this Court in Carthage v. Walters stated that, The provision of the statute which requires that an ordinance be published before it becomes effective is clear and unambiguous and the chancellor was eminently correct in so holding. 375 So.2d at 230 (emphasis added). Just as in Carthage v. Walters, the RHCO was not effective until it was first published on September 17, 2014, some 445 days after it was adopted. Also, just like Carthage v. Walters, the RHCO was not enforceable until such time as it was published, and by the terms of the RHCO itself, thirty (30) days after publication. In Carthage v. Walters, the delay in the publication of the zoning ordinance delayed the effective date of the ordinance. The exact same situation exists in the case at bar as to the effective date of the RHCO. Moreover, under Section 21-13-11, Miss. Code of 1972, and wording on the face of the RHCO, the adoption of the ordinance does not make it effective or enforceable. Unlike a decision, order or resolution which becomes final at the meeting at which it was made and/or adopted, an ordinance does not become effective until all four (4) statutory requirements have been met ((1) certified by a municipal clerk, (2) signed by the mayor, (3) recorded in the ordinance book and (4) published at least one (1) time in a newspaper published in such municipality) Section 21-13-11, Miss. Code of 1972. The operation and requirements of Section 21-13-11, Miss. Code of 1972 are obviously totally different as to when and how an ordinance becomes effective as opposed to when a decision, order or resolution become effective. This Court has clearly established this fact. First, in House v. Hornea, 799 So.2d 882 (Miss. 2001) this Court recognized that City of Oxford v. Inman, 405 So.2d 111 (Miss. 1981) deals with when a municipal ordinance becomes effective and has nothing to do with when an order of a board of supervisors is effective. Nine (9) years later in Alias v. City of Oxford, 70 So.3d 1114, 1120-1121 (Miss. Ct. App. 2010) 6

the Mississippi Court of Appeals referenced City of Oxford v. Inman, supra stating, We find Inman is not on point as the decision concerns the effective date of an ordinance under Miss. Code Annotated Section 21-13-11 (Rev. 2007), and not the appealability of a municipal decision memorialized by minutes under Section 21-15-33. Consequently, the Property Owners submit that if the effective date of a decision, order or resolution is different than that of an ordinance, under Section 21-13-11, Miss. Code of 1972, then the time for appeal under Section 11-51-75, Miss. Code of 1972, would also be different. Unlike Pearl s argument that the adoption of an ordinance, in and of itself, is enough for it to become effective and/or enforceable (without meeting the requirements of Section 21-13-11, Miss. Code of 1972), this Court s ruling in Carthage v. Walters obviates any such argument. In Carthage v. Walters, the Court found that the comprehensive zoning ordinance adopted on March 16, 1971, did not become effective until its publication on December 15, 1977. In upholding the lower court s finding on this point, the injunction originally sought by Carthage to require Walters to remove his business from an area that had been zoned R-1, residential, was also denied. Even though Walters had located his business in the R-1 zoned area, some twelve (12) months after the ordinance was adopted (February 1972), Walters was allowed to continue the use of his property at the time that the zoning ordinance became effective (December 15, 1977) as a preexisting non-conforming use. Hence, Pearl s argument that adoption of an ordinance in and of itself makes it effective is without merit, and flies in the face of this Court s holdings in Carthage v. Walters, supra. The Property Owners submit that Section 21-13-11, Miss. Code of 1972 dictates how and when an ordinance becomes effective. If all four (4) of the statutory prerequisites are not met, then the ordinance does not become effective. If an ordinance is not effective, then just like Carthage 7

v. Walters, it is not lawfully enforceable. If an ordinance is not effective, and therefore not lawfully enforceable there is no final, appealable judgment or decision to appeal from (Section 11-51- 75, Miss. Code of 1972). An ineffective and unenforceable ordinance would not provide a vehicle or mechanism pursuant to which a municipality could lawfully take action against a property owner, and therefore there would be nothing from which to appeal until such time as the ordinance became effective. Consequently, (1) if there is a difference between the effective date of an ordinance under Section 21-13-11, Miss. Code of 1972 and the effective date of a decision/order/resolution, and (2) if all four (4) requirements under Section 21-13-11, Miss. Code of 1972 must be met before an ordinance becomes effective, and (3) if this Court s ruling in Carthage v. Walters, supra represents the current state of the law, then the RHCO did not become effective or enforceable until after it was published (and thirty (30) days thereafter) and the Property Owners appeal was timely and proper, as was their Complaint for Writ of Mandamus. Contrary, to Pearl s requests to have this Court interpret and apply Section 11-51-75, Miss. Code of 1972 in a vacuum, this Court has, to date, failed to do so. To the contrary, this Court has interpreted and applied Section 11-51-75, Miss. Code of 1972 in conjunction with other applicable legal principals which can affect the finality of a municipality s decision/order/resolution, and in turn, affect the time within which to appeal, under Section 11-51-75, Miss. Code of 1972. This fact is even more pronounced and established when it comes to the effective date of an ordinance pursuant to Section 21-13-11, Miss. Code of 1972, as well as its enforceability. Carthage v. Walters, supra. Before one even embarks on the issue of jurisdiction of a circuit court to hear an appeal under Section 11-51-75, Miss. Code of 1972, one must first address the finality and appealability 8

of a municipality s decision/order/resolution or ordinance. It is well established in this Court s decisions that a decision/order/resolution must be final and appealable before the ten (10) day time frame starts to run under Section 11-51-75, Miss. Code of 1972) (J. H. Parker Construction Co., Inc. v. City of Natchez, 721 So.2d 671, 674 (Miss. Ct. App. 1998); City of Madison v. Shanks, 793 So.2d 576 (Miss. 2000); Sanford v. Board of Supervisors, Covington County, 421 So.2d 488, 491 (Miss. 1982); South Central Turf v. City of Jackson, 526 So.2d 558, 562 (Miss. 1988); Ball v. City of Natchez, 983 So.2d 295 (Miss. 2008)). The appellate process under Section 11-51-75, Miss. Code of 1972, starts with the action of the municipal authority. The cases referenced above are clear that the actions of a governing authority which are not final, contingent or conditioned upon future events and/or occurrences and/or which do not adjudicate all of the issues, do not constitute final, appealable actions under Section 11-51-75, Miss. Code of 1972, or otherwise. Accordingly, if a decision/order/resolution never becomes final due to conditions and/or contingencies placed on the action and/or because of statutory requirements (See e.g. Section 21-13-11, Miss. Code of 1972) the discussion of when the ten (10) days starts to run under Section 11-51-75, Miss. Code of 1972 is moot. The Property Owners submit that, by virtue of the fact that the RHCO was not published until September 17, 2014, it was not in effect prior to that time (and 30 days thereafter) and their Notice of Appeal filed on September 26, 2014 constituted a formal pleading indicating an intention to appeal within ten days of the earliest effective date of the RHCO. 3 Second, there is a difference between the content and operation of an ordinance as opposed to that of a decision, order or resolution memorialized by a municipality s minutes under 3 In Bowen v. DeSoto County Board of Supervisors, 852 So.2d 21, 22 (Miss. 2003) this Court stated that the legislative branch does not wish that matters of form will terminate a court s ability to consider the rights of parties. (quoting Bowling v. Madison County Board of Supervisors, 724 So.2d 431, at 432 ( 50) Miss. Ct. App.1998) 9

Section 21-15-33. Alias v. City of Oxford, 70 So.3d 1114, 1120 (Miss. Ct. App. 2010) and House v. Hornea, 799 So.2d 882, 883 (Miss. 2001). In Southland Mgmt. v. City of Columbia, 744 So.2d 774, 775 (Miss. 1999), this Court upheld the chancellor s distinction between an ordinance and an order as set forth in Evans v. City of Jackson, 30 So.2d 315, 317 (Miss. 1947), when it quoted: An ordinance and order are distinguished in Evans v. City of Jackson, 30 So.2d 315, [317] ([Miss.] 1947), where the Supreme Court of Mississippi provided the following guidance, An ordinance is enacted to regulate continuing conditions, and constitutes a permanent rule of government. An order deals with temporary powers, and when it has been promulgated and accomplished its purposes, it ceases to have further potentiality. Its usefulness usually ends with the performance of directions. An ordinance generally continues to operate until formally repealed Third, all four (4) statutory requirements contained in Section 21-13-11 are required to be met before an ordinance becomes effective, and publication is unequivocally one of these four (4) requirements. Carthage v. Walters, supra; Section 21-13-11, Miss. Code of 1972, and all of same shall be done before such ordinance shall be effective. IV. PROCEDURAL ASPECTS TO BE CONSIDERED IN FILING AND PERFECTING AN APPEAL UNDER AND PURSUANT TO SECTION 11-51-75, MISS. CODE OF 1972 Over the course of time, this Court has been continuously called upon to interpret and apply the procedural and substantive requirements of filing, perfecting and prosecuting an appeal under Section11-51-75, Miss. Code of 1972. While this appellate process continues to be grounded in the wording of Section 11-51-75, Miss. Code of 1972, the Property Owners submit that a procedural discrepancy remains between the wording contained in Section 11-51-75, Miss. Code of 1972 and the various decisions interpreting same, which comes into play in this case and which the Court might elect to further clarify. 10

In Bowen v. DeSoto County Board of Supervisors, supra, this Court eased the onerous requirement of having to file the entire bill of exceptions with the governing authority within ten (10) days of the judgment or decision appealed from. The Court stated that, the actual filing of the bill of exceptions with the Circuit Court within ten days is not an absolute prerequisite to vest the court with jurisdiction as long as some formal pleading indicating an intention to appeal is filed within ten days. Consequently, after Bowen v. DeSoto County Board of Supervisors, the process changed and an aggrieved party could file some formal pleading indicating an intention to appeal within ten days in order to perfect their appeal without having to file an entire bill of exceptions. This is exactly what the Property Owners did. They filed their Notice of Appeal and Intent to File Bill of Exceptions in the same place (governing authority who made the decision appealed from) that the bill of exceptions is required to be filed in order to perfect their appeal. However, while the Court in Bowen changed the document/pleading required to be filed under Section 11-51-75, Miss. Code of 1972 in order to perfect an appeal, the Court did not specify where the formal pleading indicating an intention to appeal (i.e. Notice of Appeal) should be filed, 852 So.2d at 23. Section 11-51-75, Miss. Code of 1972 provides for a bill of exceptions to be filed with the governing authority that rendered the decision/judgment appealed from. Powell v. Municipal Election Comm. of the Town of Isola, Mississippi, supra; Reed v. Adams, supra. On one hand, in Powell v. Municipal Election Comm. of the Town of Isola, Mississippi; 156 So.3d 250 (Miss. 2014), the court stated that, The responsibility of a municipal authority when presented with a bill of exceptions is to review it, note any aspect of it that appears to be inaccurate or incomplete, and then sign it as the correct record for the circuit court to review. citing Reed v. Adams, 236 Miss. 333, 340, 111 So.2d 222, 224 (Miss. 1959)). The court in Powell also stated that, The bill of exceptions serves as the objective record of the 11

proceedings below, and therefore must be examined and certified for authenticity by being signed and delivered to the circuit court by the authority who made the decision. 156 So.3d at 253 ( 12). Reed and Powell both reference the filing of a bill of exceptions with the governing authority and then spell out the responsibility and requirements of a governing authority once presented with a bill of exceptions. Reed and Powell clearly establish that once the municipality carries out its ministerial duties, it is then charged with delivering the bill of exceptions to the circuit court, which sits as an appellate court. On the other hand, when one reads Bowen v. DeSoto County Board of Supervisors, supra pg 22; 1 and Lowndes County v. McClanahan 161 So.3d 1052, 1053-1056 ( 1, 5, 13, 16), there is reference in both cases to the filing of a bill of exceptions with the circuit court, without any lawful authority or other precedent cited. The Property Owners submit that there appears to be a procedural discrepancy between Section 11-51-75, Miss. Code of 1972, Powell, supra and Reed on one hand and Bowen v. DeSoto County Board of Supervisors and Lowndes County v. McClanahan on the other with regard to where the bill of exceptions is to be initially filed. With all due respect to this Court, a governing authority cannot undertake its ministerial duty(s) described in Powell 4 if the bill of exceptions is originally filed with the circuit court. Before Bowen v. DeSoto County Board of Supervisors, the bill of exceptions was required to be filed with the governing authority who made the decision appealed from in order to perfect an appeal under Section 11-51-75, Miss. Code of 1972. As stated in Reed, supra, a mayor has a duty to point out what in his opinion constitutes errors in a bill of exceptions, sign it and deliver it to the circuit court. Furthermore, as far back as 1959 in Reed this Court determined that a mayor may not 4 The responsibility of a municipal authority when presented with a bill of exceptions is to review it, note any aspect of it that appears to be inaccurate or incomplete, and then sign it, and deliver it, to the circuit court. Powell, supra, ( 12). 12

arbitrarily refuse to sign a bill of exceptions upon the grounds that he considered the bill of exceptions incorrect like Pearl has done in the case at bar. As stated above, the Property Owners filed their formal pleading indicating an intention to appeal, i.e. Notice of Appeal, within ten (10) days of when the RHCO was published in the same place that the bill of exceptions is required to be filed, in order to perfect their appeal under and pursuant to Section 11-51-75. This discrepancy between Section 11-51-75, Miss. Code of 1972 and the cases cited immediately above, also presents a discrepancy as to where a Notice of Appeal and Intent to File Bill of Exceptions should initially be filed, in light of Bowen v. DeSoto County Board of Supervisors. Contrary to Pearl s arguments, the Property Owners filed their Notice of Appeal, with Pearl, on the ninth (9 th ) day after the RHCO had been published. The Property Owners Notice of Appeal clearly and specifically informed Pearl of the action being appealed from, the RHCO in question, the basis for the appeal and their intent to file a bill of exceptions within a reasonable period of time from this date (RE 46; R 29). The Property Owners filed their Notice of Appeal with Pearl, on September 26, 2014, instead of filing their bill of exceptions, which Bowen, supra, allowed them to do. The Property Owners also filed their Notice of Appeal with Pearl because that is the same entity/location where the bill of exceptions was required to be filed (pre-bowen, supra) in order to perfect an appeal under and pursuant to Section 11-51-75, Miss. Code of 1972. Since Bowen v. DeSoto County Board of Supervisors did not specify where to file a formal pleading indicating an intention to appeal, i.e. Notice of Appeal, it only stands to reason that a formal notice to appeal would best be filed in the same place or with the same entity that the bill of exceptions is required to be filed, i.e. the governing authority who made the decision appealed from. 13

Whichever venue this Court elects to designate as the location for the filing of a notice of appeal and bill of exceptions under Section 11-51-75, the Property Owners submit that under the facts of this case and the status of law regarding the procedural aspects of appeals under Section 11-51-75, Miss. Code of 1972, their appeal was proper and timely and that the circuit court s dismissal of their Complaint for Writ of Mandamus should be reversed and rendered. CONCLUSION The Property Owners believe it clear and well-established that (1) decisions, orders and/or resolutions become effective/final and appealable in a different manner and at a different time than ordinances, that (2) only actions of a governing authority which are final and/or finally dispose of all issues are appealable, whether under Section 11-51-75, Miss. Code of 1972 or in traditional civil cases and, that (3) all four (4) statutory prerequisites contained in Section 21-13- 11, Miss. Code of 1972 must be met before an ordinance becomes effective and enforceable, and therefore final and appealable. However, the Property Owners also believe that case at bar represents a case of first impression before this Court, based upon the central issue currently before this Court, i.e., when does the ten (10) time frame in Section 11-51-75, Miss. Code of 1972 begin to run in relation to when an ordinance becomes effective under and pursuant to Section 21-13-11, Miss. Code of 1972? The Property Owners submit that their appeal of the RHCO was timely and proper in light of the effective date of the RHCO, under Section 21-13-11, Miss. Code of 1972, the terms and conditions of the RHCO itself, and the fact that the Property Owners filed their formal Notice of Appeal and Intent to File Bill of Exceptions within nine (9) days of the date of publication of the RHCO. 14

The Property Owners further submit that their appeal of Pearl s RHCO was timely and proper as was their Complaint for Writ of Mandamus and that the July 16, 2015 Circuit Court Order of Dismissal should be reversed and a decision rendered on the merits in their favor. In the alternative, the Property Owners request this Court to reverse the Order and Judgment of Dismissal entered against them on July16, 2015 and remand this case to the Circuit Court of Rankin County, Mississippi for further proceedings in accordance with this Court s findings and rulings herein. SO NOTICED, on this 21st day of September, 2016. Respectfully submitted, PEMBERTON PROPERTIES, LTD d/b/a PEMBERTON APARTMENTS, PARK VILLA, LLC d/b/a EAST VILLA APARTMENTS, PEARL PARTNERS, LP d/b/a COLONY PARK APARTMENTS, COLONY PARK II, LLC d/b/a GRANDE AT COLONY PARK APARTMENTS, ALBERT MOORE HOME BUILDERS, INC. d/b/a COLONIAL TERRACE APARTMENTS, WOOD GLEN, LLC d/b/a WOOD GLEN APARTMENTS, STEVE MAULDING d/b/a BAVARIAN GARDEN APARTMENTS, STEVE MAULDING d/b/a PEARL MANOR APARTMENTS, SHEILA MAULDING d/b/a 468 PLACE TOWNHOMES, WPB PROPERTIES, LLC d/b/a FOX RUN APARTMENTS By: /s/ Steven H. Smith STEVEN H. SMITH SAMAC RICHARDSON Attorneys for Appellants 15

Steven H. Smith, MSB #7610 STEVEN H. SMITH, PLLC 4316 Old Canton Road, Suite 200 Jackson, Mississippi 39211 Telephone: (601) 987-4800 Facsimile: (601) 987-6600 ssmith@shsattorneys.com Samac Richardson, MSB #5331 P.O. Box 222 Brandon, MS 39043 Telephone: (601) 826-3400 smcrson@gmail.com CERTIFICATE OF SERVICE I, Steven H. Smith, attorney for Appellants, do hereby certify that I have caused a true and correct copy of the Appellants Reply Brief to be served via e-mail and United States mail, postage prepaid, upon the following: James A. Bobo Mississippi Bar #3604 2561 Old Brandon Road, No. 086 Post Office Box 97998 Pearl, MS 39288 /s/ Steven H. Smith STEVEN H. SMITH 16