¶ 1. Aggrieved by the Jackson City Council's decision to award a contract to Jackson Water Partnership ("JWP"), United Water Services and its affiliate, United Water Services of Mississippi, LLC (collectively "UWS"), appealed the City Council's decision, pursuant to Mississippi Code Section 11-51-75 (Rev.2002), in the Circuit Court of the First Judicial District of Hinds County, Mississippi. JWP filed a motion to intervene, which the circuit court denied. JWP and the City of Jackson ("City") timely perfected this appeal of the order denying JWP's motion to intervene. We affirm.
¶ 2. In March 2008, the City issued a Request for Proposals ("RFP") for the Operation, Maintenance and Management of the Wastewater Facilities. Various vendors, including UWS and JWP, submitted proposals on or about May 20, 2008. An "Evaluation of Proposals for the Operation, Maintenance and Management of Wastewater Facilities" prepared by the City's Department of Public Works revealed a "pricing comparison" of the three submitted bids, as follows: Southwest Water Company—$3,019,170.31; UWS— $2,615,996.05; JWP—$4,689,018.13.
¶ 3. Aggrieved by this decision, UWS filed a notice of appeal with the circuit court pursuant to Section 11-51-75. UWS claimed that the City, in awarding the wastewater contract, had engaged in an unlawfully executed RFP process. JWP moved to intervene in the action, to which the City filed a joinder. Thereafter, the circuit court denied JWP's motion to intervene. JWP and the City now appeal.
¶ 4. This Court will consider:
¶ 5. The right to appeal the City's action was created by the Legislature. UWS filed the appeal pursuant to Section 11-51-75, which provides that "[a]ny person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal...." Miss.Code Ann. § 11-51-75 (Rev.2002) (emphasis added). JWP clearly was not "aggrieved," because it was awarded a contract paying it $2 million more than what UWS had bid to perform the same services. The rationale behind permitting only the "aggrieved" to appeal is logical. It is not the act or conduct of a prevailing bidder which is subject to examination at the appellate level. Rather, the circuit court sitting as an appellate court was charged with determining whether the "decision of the board of supervisors, or municipal authorities" was arbitrary, capricious, or contrary to applicable law. See Falco Lime, Inc. v. Mayor & Aldermen of the City of Vicksburg, 836 So.2d 711, 721 (Miss.2002); Cooper v. City of Picayune, 511 So.2d 922, 923 (Miss.1987); Miss.Code Ann. § 11-51-75 (Rev.2002). Although
¶ 6. JWP claims its right to intervene arises from Mississippi Rule of Civil Procedure 24. But this Court in Cooper clearly pointed out that "the Mississippi Rules of Civil Procedure ... apply to trial proceedings only, except where therein expressly provided to the contrary." Cooper, 511 So.2d at 923. Moreover, post-Cooper, the Mississippi Rules of Appellate Procedure were adopted and now control appeals. See "Order Adopting the Mississippi Rules of Appellate Procedure" ("the Mississippi Rules of Appellate Procedure will promote the prompt, fair, and efficient administration of justice on appeal .... [T]he [Rules] ... are[] adopted as rules governing all proceedings in the Mississippi Supreme Court and the Court of Appeals of the State of Mississippi, and the trial courts of this State to the extent provided ....") (emphasis added). The Mississippi Rules of Appellate Procedure clearly and unequivocally do not provide for intervention at the appellate level.
¶ 7. Mississippi Rule of Appellate Procedure 1 provides that:
M.R.A.P. 1. The Comment to Rule 1 adds that the enumerated:
¶ 8. Likewise, the dissent's proposition that "[t]his Court repeatedly has allowed a circuit court to proceed de novo in an action appealed under Section 11-51-75 where a board failed to conduct a hearing on the matter in issue [,]" is not only delusive, but also altogether inapplicable in the present case. (Diss. Op. at ¶ 21) (emphasis added). It is delusive because "where no hearing is held, the action does not really proceed under Section 11-51-75 at all[,]" and because the proposition from Cook v. Board of Supervisors of Lowndes County, 571 So.2d 932, 934 (Miss.1990), cited by the dissent,
¶ 9. A de novo appeal under Section 11-51-75 is inapplicable here because sufficient "hearing" proceedings were held. The dissent's argument to the contrary is a red herring, distracting focus from the only issue presented on appeal, i.e., intervention. The appellate briefs filed herein in no way assert a lack of "hearing" or claim that the trial court erred in failing to conduct a de novo trial. JWP's brief proclaims this certainty, unequivocally stating that following the submission of competing proposals:
(Emphasis added.) UWS argues that its circuit court appeal "alleges ... that the City acted arbitrarily, capriciously, and contrary to law throughout the procurement process and in its ultimate decision to deny the award of contract to [UWS]."
¶ 10. Moreover, this Court has stated that the hearing requirement is "not necessarily one according to the form of a trial in a court of law." Cook, 571 So.2d at 934. This Court has declined:
Falco Lime, 836 So.2d at 718-19. See also Malone v. Leake County Bd. of Supervisors, 841 So.2d 141, 144-45 (Miss.2003) (sufficient evidence of "hearing" through Board minutes discussing subject contract, hearing regarding qualifications of bidders, motion to award contract, and unanimous vote). The voluminous bill of exceptions presented in this case includes, inter alia, the RFP issued by the City, the "Evaluation of Proposals" prepared by the City's Department of Public Works, multiple sets of minutes from special meetings of the City Council, an excerpt from the September 18, 2008, special meeting, and the November 11, 2008, "Order Authorizing Mayor to Execute Contract with [JWP] for the Management of [the City's] Wastewater Treatment Facilities." Accordingly, unlike Cook, this is not an exceptional case bereft of hearing, "where a party with standing challenges board action on grounds it is ultra vires and where that party is entitled to proceed de novo." Cook, 571 So.2d at 934.
¶ 11. Regarding appeals under Section 11-51-75:
Falco Lime, 836 So.2d at 716. The circuit court sitting as an appellate court applies the same standard of review "to the Board's legislative act" as to the "review of administrative agency decisions." Id. at 721. That is, the Board's action will be reversed only "if it is arbitrary and capricious, or is not supported by substantial evidence." Malone, 841 So.2d at 143. In this context, little beyond Uniform Circuit and County Court Rules 5.02 through 5.10 applies. See URCCC 5.02 to 5.10. As the present case involves this type of appeal, intervention was not an option available to JWP under the Rules.
¶ 12. But this is not to say that the participation of additional parties should be barred. As Cooper aptly recognized, "[a]ny court of this state sitting as an appellate court has the inherent authority to allow additional parties to participate in the appeal upon timely application or upon the court's invitation." Cooper, 511 So.2d at 923. Mississippi Rule of Appellate Procedure 29 provides an avenue for persons other than the parties to participate in the appellate process via the filing of an amicus curiae brief. See M.R.A.P. 29; Cooper, 511 So.2d at 924 (endorsing participation in the appellate process through filing an amicus curiae brief).
¶ 13. JWP certainly had the right to seek participation at the appellate level by seeking leave to file an amicus curiae brief, however, intervention was not an available option. As no constitutional provision, statute, or court rule permits intervention, the adoption of the Mississippi Rules of Appellate Procedure effectively supplanted that portion of Cooper's holding which provides, without citation, that "the [c]ircuit [c]ourt, when sitting as a court of appeals, has the authority to allow third parties to intervene in the appeal." Cooper, 511 So.2d at 923. If the year was 1910, rather than 2010, this Court might agree with the dissent that Gates controls. Likewise, if it was 1987, this Court might agree with former Justice Robertson that Cooper was controlled by Gates. See id. But, at present, the Mississippi Rules of Appellate Procedure control exclusively.
¶ 14. The circuit court properly denied JWP's Motion to Intervene, but that denial should have been premised upon the absence of any authority for a circuit court sitting as an appellate court to grant JWP's Motion to Intervene. "It is well established in our jurisprudence that the right result reached for the wrong reason will not be disturbed on appeal." Green v. Cleary Water, Sewer & Fire Dist., 17 So.3d 559, 572 (Miss.2009) (citations omitted).
¶ 15. As no authority existed for JWP to intervene, the circuit court's denial of JWP's motion to intervene was proper, albeit for the wrong reason. The order of the Circuit Court of the First Judicial District of Hinds County is affirmed.
¶ 16.
GRAVES, Presiding Justice, Dissenting:
¶ 17. Jackson Water Partnership (JWP) had a right to intervene in the circuit court action contesting the award of a contract to it by the City of Jackson. Because I would find that the circuit court erred in denying JWP's motion to intervene, I respectfully dissent.
¶ 18. The majority's statement that "the adoption of the Mississippi Rules of Appellate Procedure effectively supplanted" the applicable portion of Cooper v. City of Picayune, 511 So.2d 922, 923 (Miss. 1987), is erroneous. (Maj. Op. at ¶ 13). Specifically, the majority states:
(Maj. Op. at ¶ 13).
¶ 19. The Mississippi Rules of Appellate Procedure were adopted effective January 1, 1995. On September 12, 1996, this Court decided Cummings v. Benderman, 681 So.2d 97 (Miss.1996), and said:
Cummings, 681 So.2d at 100. This Court further said that the "Circuit Court, when sitting as a court of appeals, has the authority to allow third parties to intervene in the appeal." Id. at 101. Applying Rule 24 of the Mississippi Rules of Civil Procedure, this Court found that:
Id. at 102.
¶ 20. This Court has clearly applied the Mississippi Rules of Civil Procedure to appellate intervention actions since the effective date of the Mississippi Rules of Appellate Procedure. As a result, the Mississippi Rules of Appellate Procedure do not "exclusively control," as the majority states. (Maj. Op. at ¶ 13).
¶ 21. The majority attempts to distinguish Cummings on the basis that it involved
¶ 22. The majority refers to the citation of this authority as "delusive" and states that it is "inapplicable in the present case." (Maj. Op. at ¶ 8). However, the majority's attempted perversion of this authority is erroneous and does not overcome the majority's inability to cite to any portion of the record in the instant case to establish that a hearing was held. Further, the majority's reasoning is contradictory. First, the majority states that the proposition established by this authority is "delusive because `where no hearing is held, the action does not really proceed under Section 11-51-75 at all [,]' and because the proposition from Cook v. Board of Supervisors of Lowndes County, 571 So.2d 932, 934 (Miss.1990), cited by the dissent [footnote omitted] was later questioned in Falco Lime insofar as Cook failed to provide citation to similar cases, `[n]or does our research readily yield a list of them.'" (Maj. Op. at ¶ 8) (citing Falco, 836 So.2d at 717-18 n. 4). The majority is acknowledging that an action does not really proceed under Section 11-51-75 when no hearing is held, thus proceeding de novo. But then the majority appears to be claiming that there is no authority for proceeding de novo because Cook cited no cases for such a proposition. Yet, Falco, on which the majority relies, cites Cook extensively. Falco, 836 So.2d at 717-19. Further, this Court did not question Cook in Falco, but merely said:
Id. at 717-18 n. 4. Then the majority states that "[a] de novo appeal under Section 11-51-75 is inapplicable here because sufficient `hearing' proceedings were held." (Maj. Op. at ¶ 9). However, again, the majority is unable to cite any portion of the record in this matter to establish that a hearing including JWP and UWS was held, because there was no hearing. The majority's finding that "sufficient `hearing' proceedings were held" based on the "voluminous bill of exceptions," documents prepared by the City, or meetings of the City Council is wholly unsupported by the facts. (Maj. Op. at ¶¶ 9, 10).
¶ 24. The majority is correct that this Court appears to have found that a proper hearing had been held in Falco. Falco, 836 So.2d at 718-19. However, the majority fails to acknowledge the context of the decision or the facts of that case. Falco was a consolidated appeal of two cases. Id. at 713. Specifically, this Court said:
Falco, 836 So.2d at 713-14. This Court further noted that:
Id. at 714.
¶ 25. All of the parties on appeal in Falco participated in the action in the trial court. There was no issue of a party not being permitted to intervene. Further, the issue raised on appeal by the Board and from which the majority here quotes was actually: "Whether Falco's exclusive
¶ 26. The majority then cites Malone v. Leake County Bd. of Supervisors, 841 So.2d 141, 144 (Miss.2003) for the proposition that "sufficient evidence of `hearing' through Board minutes discussing subject contract, hearing regarding qualifications of bidders, motion to award contract, and unanimous vote." (Maj. Op. ¶ 10). In Malone, this Court explicitly found that the "Board held a hearing on October 16, 2000, regarding the qualifications of Malone and Carthage Ambulance Service." See Malone, 841 So.2d at 144 (emphasis added). There also was no intervention issue in Malone.
¶ 27. In the instant case, the City merely issued a Request for Proposals, which were evaluated by the City of Jackson Department of Public Works. There was no hearing. Therefore, a de novo review is proper. See Cook v. Bd. of Supervisors of Lowndes County, 571 So.2d 932, 934 (Miss.1990); Malone v. Leake County Bd. of Supervisors, 841 So.2d 141, 144 (Miss. 2003); Falco Lime, Inc. v. Mayor & Aldermen of City of Vicksburg, 836 So.2d 711, 717-18 (Miss.2002); and Newell v. Jones County, 731 So.2d 580, 582 (Miss.1999).
¶ 28. Notwithstanding the applicability of a de novo standard, this Court's decision in Cummings is consistent with the Mississippi Rules of Appellate Procedure.
¶ 29. The "Order Adopting the Mississippi Rules of Appellate Procedure" does state:
Miss. R.App. P. Order (emphasis added).
¶ 30. However, Rule 1 specifically states:
Miss. R.App. P. 1 (emphasis added). The comment to Rule 1 further clarifies:
Miss. R.App. P. 1 cmt. (emphasis added).
¶ 31. The term "trial court" as used in the Rules of Appellate Procedure includes a circuit court sitting as an appellate court. Clearly, the Rules of Appellate Procedure also require the application of the Mississippi Rules of Civil Procedure to a circuit court sitting as an appellate court. Therefore, the majority's attempt to exclude the application of the Mississippi Rules of Civil Procedure is erroneous.
¶ 32. Moreover, even if the Mississippi Rules of Civil Procedure did not apply and only the Rules of Appellate Procedure were controlling, the majority's finding still would be erroneous. Rule 29 addresses only leave to file an amicus brief and in no way limits relief sought from an appellate court through a motion to intervene filed pursuant to Mississippi Rule of Appellate Procedure 27. See Miss. R.App. P. 27. Further, this Court has the authority to "suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion" pursuant to Rule 2. See Miss. R.App. P. 2(c).
¶ 33. The holdings in Cummings, Cooper, and Gates v. Union Naval Stores Co., 92 Miss. 227, 229, 45 So. 979 (1908), also are supported by other authority, which the majority attempts to distinguish by virtue of an intervention provision in the Federal Rules of Appellate Procedure. (Maj. Op. at n. 2). However, the majority's attempted distinction fails because, as set out previously herein, this Court has found that the intervention provision of the Mississippi Rules of Civil Procedure is clearly applicable in post-Mississippi Rules of Appellate Procedure matters.
¶ 34. The United States Court of Appeals for the Fifth Circuit has said that either intervention or amicus curiae status is an available option. In Bush v. Viterna, 740 F.2d 350, 359 (5th Cir. 1984), the Fifth Circuit Court found intervention by right was not appropriate because the intervenor's interests were adequately represented by an existing party. However, with regard to permissive intervention, the court said, in relevant part:
Id. at 359.
¶ 35. In State of Texas v. U.S. Dep't of Energy, 754 F.2d 550 (5th Cir.1985), the Fifth Circuit found that appellate intervention was not appropriate "because the utilities have no claim or defense involving common questions of law or fact with those in the ongoing proceeding as required by the rule." Id. at 553. However, the court further found as follows:
State of Texas v. U.S. Dep't of Energy, 754 F.2d at 553. See also Ingebretsen v. Jackson Public Sch. Dist., 864 F.Supp. 1473, 1484-85 (S.D.Miss.1994).
¶ 36. Therefore, it is appropriate to consider whether JWP should be allowed to intervene by right or by permission.
¶ 37. JWP's application was timely. JWP was awarded the contract at issue and clearly has "an interest relating to the property or transaction which is the subject of the appeal." Cooper, 511 So.2d at 923. JWP is further "so situated that disposition of the appeal may as a practical matter impair or impede his ability to protect his interest." Id. The sole issue to be resolved is whether "the party's interest is adequately represented by the existing party." Id.
¶ 38. JWP has an interest that is not adequately protected by the City. While the City of Jackson and JWP may have overlapping interests, they also clearly have separate interests. Common sense dictates that the City merely has an interest in awarding the contract to the lowest and best bidder and ensuring the fulfillment of the contract by whoever that bidder may be. JWP has proprietary and financial interests in being awarded the contract. Further, the majority fails to explain the appropriate course of action JWP would need to take if United Water Services should prevail in its underlying action. Presumably JWP would then need to file a separate lawsuit challenging the award of the contract to United Water Services. In any event, JWP would be placed at a substantial disadvantage in protecting its legitimate interests if not allowed to participate in these proceedings regarding its contract.
¶ 39. This Court in Madison HMA, Inc. v. St. Dominic-Jackson Mem'l Hosp., 35 So.3d 1209, 1215 (Miss.2010), clarified that a trial court has little, if any, discretion in such an action, and then reversed a chancellor's denial of a motion to intervene by a second prospective buyer in an action by a first prospective buyer to enforce a purchase agreement. Madison HMA, 35 So.3d at 1214. Yet here, the majority finds that an actual party to a contract should not be allowed to intervene. Those results are inconsistent. If the putative intervenor in Madison HMA was allowed to intervene in a case where it had no contract and no award of a bid, then surely the putative intervenor in this case should be allowed to intervene as a matter of right. Unlike the putative intervenor in Madison HMA, JWP has a demonstrable and genuine "interest related to the property or transaction." Based on the record in this matter, I would find that the requirements necessary to establish intervention of right have been met and that
¶ 40. However, even if JWP did not meet the requirements for intervention by right, it should not be excluded from the action involving a contract which it was awarded. Under the authority cited herein, it should be allowed permissive intervention or, at the very least, be granted amicus curiae status.
¶ 41. Because I would find that the requirements necessary to establish intervention of right have been met, I would reverse the judgment of the circuit court. Therefore, I respectfully dissent.
KITCHENS, J., JOINS THIS OPINION.
