MS Supreme Court Applies Revised Statutory Provisions and Holds that Special Exception Appeal was Timely

This post was authored by Amy Lavine, Esq.

A Mississippi case decided in 2021 addressed changes to the statutory requirements for pleading and process service in cases challenging decisions made by county boards of supervisors.

Prior to the legislative amendments, aggrieved parties were required to file a bill of exceptions in order to initiate an appeal, but the Mississippi Supreme Court reviewed this requirement in 2018 and overruled it based on the history of bills of exceptions and “in an effort ‘to restore fairness and sensibility to the bill of exceptions process[.]'” The state legislature then revised the statute in 2019 to remove the bill of exceptions requirement and replace it with a requirement for filing a notice of appeal. Interpreting this requirement was therefore a matter of first impression for the Mississippi Supreme Court when the issue was raised in American Tower Asset Sub, LLC v. Marshall County.

The specific issue before the court was whether American Tower’s notice of appeal was timely where it had filed the notice within the prescribed 10 day period but it failed to deliver a copy to the president of the board of supervisors and instead served the chancery clerk, who also served as the clerk to the board of supervisors. The county claimed that this defect was jurisdictional, but the court disagreed. As it explained, jurisdiction was established upon filing the notice of appeal, not service, and while the amended statute required a copy to be “delivered” to the president of the board of supervisors, “the statute does not specify the exact method of service or delivery that is required.” As a procedural rather than jurisdictional defect, American Tower’s service of process could therefore be cured, and it was reversible error for the circuit court to have dismissed the appeal.

American Tower Asset Sub, LLC v. Marshall County, 324 So. 3d 300 (Miss. 9/2/21).