Gulfport Partners V, L.P. v. Harrison County Board of Supervisors ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-00062-COA
GULFPORT PARTNERS V, L.P., GULFPORT APPELLANTS
PARTNERS VI, L.P., GULFPORT PARTNERS
VII, L.P., GULFPORT PARTNERS VIII, L.P.,
AND GULFPORT PARTNERS IX, L.P.
v.
HARRISON COUNTY BOARD OF APPELLEES
SUPERVISORS AND TAL FLURRY, TAX
ASSESSOR FOR HARRISON COUNTY,
MISSISSIPPI
DATE OF JUDGMENT: 12/18/2015
TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANTS: JOHN G. CORLEW
KATHY K. SMITH
LYNN CHAIN WALL
ATTORNEYS FOR APPELLEES: TIM C. HOLLEMAN
PATRICK TAYLOR GUILD
NATURE OF THE CASE: CIVIL - OTHER
TRIAL COURT DISPOSITION: DENIED APPELLANTS’ MOTION TO TAX
COSTS AND FOR PREJUDGMENT
INTEREST
DISPOSITION: AFFIRMED IN PART AND REVERSED
AND REMANDED IN PART - 05/23/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2016-CA-00087-COA
BELLEMONT GARDENS, L.P., AND BILOXI APPELLANTS
GATES, L.P.
v.
HARRISON COUNTY BOARD OF APPELLEES
SUPERVISORS AND TAL FLURRY, TAX
ASSESSOR FOR HARRISON COUNTY,
MISSISSIPPI
DATE OF JUDGMENT: 12/18/2015
TRIAL JUDGE: CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANTS: JOHN G. CORLEW
KATHY K. SMITH
LYNN CHAIN WALL
ATTORNEYS FOR APPELLEES: TIM C. HOLLEMAN
PATRICK TAYLOR GUILD
NATURE OF THE CASE: CIVIL - OTHER
TRIAL COURT DISPOSITION: DENIED APPELLANTS’ MOTION TO TAX
COSTS AND FOR PREJUDGMENT
INTEREST
DISPOSITION: AFFIRMED IN PART AND REVERSED
AND REMANDED IN PART - 05/23/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2016-CA-00090-COA
D’IBERVILLE PARTNERS, L.P., APPELLANTS
WOOLMARKET PARTNERS, L.P., AND
WOOLMARKET PARTNERS II, L.P.
v.
HARRISON COUNTY BOARD OF APPELLEES
SUPERVISORS AND TAL FLURRY, TAX
ASSESSOR FOR HARRISON COUNTY,
MISSISSIPPI
DATE OF JUDGMENT: 12/18/2015
TRIAL JUDGE: CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANTS: JOHN G. CORLEW
KATHY K. SMITH
LYNN CHAIN WALL
ATTORNEYS FOR APPELLEES: TIM C. HOLLEMAN
PATRICK TAYLOR GUILD
NATURE OF THE CASE: CIVIL - OTHER
TRIAL COURT DISPOSITION: DENIED APPELLANTS’ MOTION TO TAX
COSTS AND FOR PREJUDGMENT
INTEREST
DISPOSITION: AFFIRMED IN PART AND REVERSED
AND REMANDED IN PART - 05/23/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2016-CA-00091-COA
D’IBERVILLE PARTNERS, L.P., APPELLANTS
WOOLMARKET PARTNERS, L.P., AND
WOOLMARKET PARTNERS II, L.P.
v.
HARRISON COUNTY BOARD OF APPELLEES
SUPERVISORS AND TAL FLURRY, TAX
ASSESSOR FOR HARRISON COUNTY,
MISSISSIPPI
DATE OF JUDGMENT: 12/18/2015
TRIAL JUDGE: CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANTS: JOHN G. CORLEW
KATHY K. SMITH
LYNN CHAIN WALL
ATTORNEYS FOR APPELLEES: TIM C. HOLLEMAN
PATRICK TAYLOR GUILD
NATURE OF THE CASE: CIVIL - OTHER
TRIAL COURT DISPOSITION: DENIED APPELLANTS’ MOTION TO TAX
COSTS AND FOR PREJUDGMENT
INTEREST
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DISPOSITION: AFFIRMED IN PART AND REVERSED
AND REMANDED IN PART - 05/23/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., BARNES AND GREENLEE, JJ.
LEE, C.J., FOR THE COURT:
¶1. This appeal arises from four consolidated cases: 2016-CA-00062-COA,
2016-CA-00087-COA, 2016-CA-00090-COA, and 2016-CA-00091-COA.1 In this appeal
we must decide whether the circuit court erred when it denied Gulfport Partners L.P.’s
motion for (1) the cost of bond premiums required by statute to perfect the appeal and (2)
prejudgment interest on the liquidated amount of tax in dispute required to be paid by the
statute. Gulfport Partners now appeals the circuit court’s denial of its motion.
FACTS AND PROCEDURAL HISTORY
¶2. Gulfport Partners appealed its 2011 ad valorem county tax assessment, as assessed by
the Harrison County Tax Collector and approved by the Harrison County Board of
Supervisors (Board), to the Harrison County Circuit Court. While the case was pending in
the circuit court, the Mississippi Supreme Court handed down its decision in Willow Bend
Estates LLC v. Humphreys County Board of Supervisors, 166 So. 3d 494 (Miss. 2013), which
interpreted the statute governing the determination of the true value of affordable rental
housing for purposes of ad valorem taxation. In accordance with the supreme court’s
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The appellants in each of the four cases present identical legal issues, and all involve
the Harrison County Board of Supervisors and the Harrison County Tax Collector as the
appellees. Our opinion refers to Gulfport Partners as a representative of all the appellants
in these consolidated cases. Thus, our decision applies to the other three consolidated cases
in the same manner as it applies to Gulfport Partners.
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decision in Willow Bend, all of the parties in the consolidated cases agreed on the amount of
the assessment for each property. Accordingly, an agreed final judgment was entered
directing the Harrison County Tax Collector to determine the taxes owed based upon the true
and assessed values in accordance with the supreme court’s ruling in Willow Bend and to
refund any amounts due to Gulfport Partners based upon the assessment. The agreed order
stated “that the court retain[ed] jurisdiction to consider costs and/or interest, if any.”
¶3. Gulfport Partners then filed a “motion to tax costs and prejudgment interest.” The
costs requested in the motion included the costs of the bond premiums required to appeal the
ad valorem tax assessment and prejudgment interest from the date of overpayment of taxes
until the date of the refund. Gulfport Partners cited Mississippi Rule of Appellate Procedure
36(c), which provides that costs include “the premiums paid for cost of supersedeas bonds
or other bonds to preserve rights pending appeal.” The Board argues, and the trial court
found, that the Mississippi Rules of Appellate Procedure did not apply to cases before the
circuit court. The circuit court denied Gulfport Partners’ motion, holding that there was no
statutory authority for the recovery of bond premiums as costs. The court also denied
Gulfport Partners’ request for prejudgment interest, noting that it failed to make demand for
it in its pleadings or cite to any statutory authority allowing for its award. Gulfport Partners
appeals the circuit court’s denial of its motion.
STANDARD OF REVIEW
¶4. The issue on appeal is whether bond premiums are recoverable as a “cost” within the
meaning of Mississippi Code Annotated section 11-51-77 (Rev. 2012). An appellate court’s
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“review of a trial court’s interpretation of a statute presents a question of law; we review
questions of law de novo.” Miss. Ethics Comm’n v. Grisham, 957 So. 2d 997, 1000 (¶8)
(Miss. 2007) (quoting 32 Pit Bulldogs v. Cty. of Prentiss, 808 So. 2d 971, 973 (¶8) (Miss.
2002)).
DISCUSSION
I. Bond Premiums
¶5. Section 11-51-77 states, in relevant part:
Any person aggrieved by a decision of the board of supervisors or the
municipal authorities of a city, town or village, as to the assessment of taxes,
may . . . appeal to the circuit court of the county, upon giving bond, with
sufficient sureties, in double the amount of the matter in dispute, but never less
than One Hundred Dollars ($100.00), payable to the state, and conditioned to
perform the judgment of the circuit court. . . .
If the matter be decided in favor of the person who appealed, judgment in his
favor shall be certified to the board of supervisors, or the municipal authorities,
as the case may be, which shall conform thereto, and shall pay the costs.
¶6. Section 11-51-77 specifically governs the appeal of a county ad valorem tax
assessment. Though the parties and the circuit court refer to Mississippi Code Annotated
section 11-53-53 (Rev. 2012) for its applicability, we limit our discussion to section 11-51-
77, as it controls the instant case. “The well-settled principles of statutory construction
require recognition of the fact that the specific statute, [section] 11-51-77, controls the
general statute,” here being section 11-53-53. Lenoir v. Madison Cty., 641 So. 2d 1124, 1132
(Miss. 1994). “[Section 11-51-77] governs the method of appealing to the circuit court from
the board of supervisors, where a tax matter is involved, [and] is dispositive of the outcome
in the case sub judice.” Id.6
¶7. Here, Gulfport Partners, as directed by the statute, properly appealed to the circuit
court the decision of the Board approving the county’s tax assessment. In order to appeal,
it consequently incurred the cost of bond premiums by posting the bond required by the
statute. It successfully challenged the tax assessments such that it was owed a refund.
Undisputedly, the statute mandates that the Board pay “the costs.” The parties disagree,
however, as to what constitutes “the costs” within the meaning of the statute.
¶8. “When presented with a question regarding the application of a statute, [an appellate
court] strives to give the statute its effect as intended by the Legislature.” AmFed Nat’l Ins.
v. NTC Transp. Inc., 196 So. 3d 947, 958 (¶39) (Miss. 2016) (citing City of Natchez v.
Sullivan, 612 So. 2d 1087, 1089 (Miss. 1992)). Therefore, we first look to the language of
the statute. Id. “[I]f the words of a statute are clear and unambiguous, we apply the plain
meaning of the statute . . . .” Id. (quoting Lawson v. Honeywell Int’l. Inc., 75 So. 3d 1024,
1027 (¶7) (Miss. 2011)). “Where the [L]egislature has not defined a term within the statutory
scheme, we look to the term’s common and generally accepted meaning.” Moore ex rel. City
of Aberdeen v. Byars, 757 So. 2d 243, 248 (¶15) (Miss. 2000) (citing Corry v. State, 710 So.
2d 853, 861 (¶25) (Miss. 1998)). Finally, “[a]ll words and phrases contained in the statutes
are used according to their common and ordinary acceptation and meaning.” Miss. Code
Ann. § 1-3-65 (Rev. 2014).
¶9. Here, it is clear from a plain reading of the statute that the appellant is required to post
a bond in order to appeal. It is also clear from the statute that where the appellant prevails,
the Board is required to pay the costs. This Court has previously noted that Mississippi
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caselaw, with respect to the definition of costs, is “consistent with the general language
found in the comment to [Mississippi] Rule [of Civil Procedure] 54(d).” Hubbard v. Delta
Sanitation of Miss., 64 So. 3d 547, 564 (¶69) (Miss. Ct. App. 2011). In so doing, we have
held that “costs represents those official expenses, such as court fees, that a court will assess
against a litigant.” Id. (citing M.R.C.P. 54(d) cmt.). Certainly, where the statute requires the
appellant to post a bond in order to appeal, the bond premiums constitute an “official expense
. . . that a court will assess against a litigant.” Id. Moreover, in the instant case, the
controlling statute does not give the circuit court the discretion to assess costs, but rather
requires it to assess costs: “shall pay the costs.” § 11-51-77 (emphasis added).
¶10. Additionally, though the Mississippi Rules of Appellate Procedure specifically govern
the procedures of this Court and the Mississippi Supreme Court, we do find Rule 36 to be
instructive in the instant case. Under Rule 36(c), recoverable costs on appeal include “the
premiums paid for cost of supersedeas bonds or other bonds to preserve rights pending
appeal.” Analogously, the instant case involved an appeal––albeit before the circuit
court—where the appellant, Gulfport Partners, incurred the cost of bond premiums as
required by the statute in order to appeal. Thus, Rule 36(c) provides further support for the
interpretation that “the costs” named in section 11-51-77 include the premiums paid for the
cost of the bonds required to appeal, as this interpretation is consistent with other Mississippi
appellate procedures. The dissent states that the “Mississippi Rules of Appellate Procedure
apply to proceedings in circuit court when the circuit court sits as an appellate court.”
However, the cases the dissent relies on for support specifically refer to when a circuit court
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sits as an appellate court in an appeal from a county court. See Van Meter v. Alford, 774 So.
2d 430, 432 (¶3) (Miss. 2000); Am. Inv’rs Inc. v. King, 733 So. 2d 830, 832 (¶4) (Miss.
1999); Adams v. Miss. State Oil & Gas Bd., 80 So. 3d 869, 871 (¶8) (Miss. Ct. App. 2012).
The instant case deals with an appeal from a board of supervisors to the circuit court that is
governed by a specific statute. Our caselaw does not address the Mississippi Rules of
Appellate Procedure in this instance, and we decline to extend the established law.
¶11. A plain reading of section 11-51-77, in conjunction with the meaning of costs in
accordance with the Mississippi Rules of Civil Procedure and our caselaw, illustrates that
“the costs” mandated by the statute include the bond premiums necessitated by the statute.
The circuit court erred when it denied Gulfport Partners’ motion to tax these costs. With
respect to this issue, the judgment of the circuit court is reversed.
II. Prejudgment Interest
¶12. In its motion to tax the costs, Gulfport Partners also requested prejudgment interest
on the liquidated amount of overpayment, which was denied by the circuit court. We review
the circuit court’s grant or denial of a request for prejudgment interest under an abuse-of-
discretion standard. Indem. Ins. of N. Am. v. Guidant Mut. Ins., 99 So. 3d 142, 156 (¶39)
(Miss. 2012). Finding no abuse of discretion, we affirm.
¶13. “The purpose of prejudgment interest is . . . ‘to provide compensation for the
detention of money [that is] overdue.’” Arcadia Farms P’ship v. Audubon Ins. Co., 77 So.
3d 100, 105 (¶19) (Miss. 2012) (quoting Moeller v. Am. Guar. & Liab. Ins. Co., 812 So. 2d
953, 958 (¶11) (Miss. 2002)). “It compensates . . . for the time value of money.” Id. (citing
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In re Guardianship of Duckett, 991 So. 2d 1165, 1182 (¶41) (Miss. 2008)).
¶14. The supreme court has recognized that Mississippi Code Annotated section 75-17-7
(Rev. 2016) provides the circuit court with the discretion to award prejudgment interest:
All judgments or decrees founded on any sale or contract shall bear interest at
the same rate as the contract evidencing the debt on which the judgment or
decree was rendered. All other judgments or decrees shall bear interest at a per
annum rate set by the judge hearing the complaint from a date determined by
such judge to be fair but in no event prior to the filing of the complaint.
Id. “This statute does not require judges to award prejudgment interest, but allows the judge
to determine the date from which interest will be calculated.” Indemnity, 99 So. 3d at 157(¶39). The supreme court has also stated the following regarding the award of prejudgment
interest:
It is well settled that in Mississippi a trial judge is afforded discretion in
deciding whether to award prejudgment interest. Under Mississippi law,
prejudgment interest may be allowed in cases where the amount due is
liquidated when the claim is originally made or where the denial of a claim is
frivolous or in bad faith. No award of prejudgment interest may rationally be
made where the principal amount has not been fixed prior to judgment.
Id. at (¶40). Finally, “the party requesting prejudgment interest is required to make a demand
for prejudgment interest in its complaint.” Id. (citing Upchurch Plumbing Inc. v. Greenwood
Util. Comm’n, 964 So. 2d 1100, 1118 (¶45) (Miss. 2007)).
¶15. Here, Gulfport Partners was owed a refund for the overpayment of taxes, which were
liquidated when it originally made its claim. So it is undisputed that Harrison County
detained money that was overdue so as to justify the purpose for which prejudgment interest
is awarded. However, Gulfport Partners failed to make demand—as required—for
prejudgment interest in its pleadings. Further, section 11-51-77, the controlling statute, does
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not provide an award of prejudgment interest for the successful appellant. And Mississippi
Code Annotated section 27-73-1 (Rev. 2010), which governs the refund of erroneously paid
taxes, does not mention interest on the overpayment of taxes. Because Gulfport Partners did
not request prejudgment interest in its pleadings, and there is no statutory authority
mandating prejudgment interest, the circuit court did not abuse its discretion when it denied
Gulfport Partners’ request. Our decision applies fully and uniformly to the four cases
consolidated on appeal and to the respective appellants and appellees herein.
¶16. THE JUDGMENTS OF THE HARRISON COUNTY CIRCUIT COURT ARE
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS
APPEAL ARE ASSESSED AT ONE-HALF TO THE APPELLANTS AND ONE-
HALF TO THE APPELLEES.
IRVING, P.J., FAIR, WILSON AND GREENLEE, JJ., CONCUR. BARNES
AND WESTBROOKS, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY GRIFFIS, P.J. ISHEE, J., NOT
PARTICIPATING.
CARLTON, J., DISSENTING:
¶17. I respectfully dissent from the majority’s opinion. The Mississippi Rules of Appellate
Procedure apply to proceedings in circuit court when the circuit court sits as an appellate
court. See Van Meter v. Alford, 774 So. 2d 430, 432 (¶3) (Miss. 2000); Am. Inv’rs Inc. v.
King, 733 So. 2d 830, 832 (¶4) (Miss. 1999); Adams v. Miss. State Oil & Gas Bd., 80 So. 3d
869, 871 (¶8) (Miss. Ct. App. 2012).
GRIFFIS, P.J., JOINS THIS OPINION.
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