     Case: 09-60390     Document: 00511024782          Page: 1    Date Filed: 02/10/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 10, 2010

                                     No. 09-60390                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



H. L. JAMES; MATTHEW W. JAMES

                                                   Plaintiffs – Appellants
v.

CITY OF PONTOTOC, MISSISSIPPI

                                                   Defendant – Appellee




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 3:07-CV-108


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Plaintiffs-Appellants H.L. and Matthew James appeal the district court’s
grant of summary judgment in favor of Defendant-Appellee City of Pontotoc. We
affirm.
                           FACTS AND PROCEEDINGS
        Matthew James owns 3.2 acres of property within the City of Pontotoc
(“the City”) upon which he and his father, H.L. James, planned to develop duplex


        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-60390

apartments. City employees informed H.L. that the development would have to
be presented to and approved by the City’s Board of Aldermen (“the Board”) as
a planned unit development. H.L. first brought the proposal before the Board in
November 2006, at which time the Board suggested that it would approve the
general plan. H.L. then had an engineer plat the development and render
construction plans, which were brought before the Board at its next meeting in
December 2006. This meeting was videotaped and televised to the public.
Reviewing the plans, the Board indicated that it wanted changes to the plan to
turn a connecting street into a cul-de-sac. Alderman Bob Peeples, acting as chair
in the absence of Mayor Bill Rutledge, then offered the following motion:
       Alderman Peeples: We’ve got a motion by Johnny that we approve
       the Planned Unit Development with the exception of the, ah,
       cul-de-sac on the end, and, go ahead and get his permit for the first
       one.
       Do we have a second?
       Second by Tommy. Any business? All in favor raise your right
       hand.

The motion carried without opposition. The next day, the City issued a building
permit to the plaintiffs for a single structure, to allow them to begin building the
first duplex. Special remarks on the building permit indicated that the permit
was issued “per Board action 12-05-06 PUD plat w/cul-d-sac [sic] to be
approved.”
      The minutes to the December meeting were later drafted and were
adopted without opposition at the next Board meeting in January 2007.
Concerning the planned development, the minutes read:
       ORDER TO CONSIDER PLANNED UNIT DEVELOPMENT BY
       H. L. JAMES ON PROPERTY LOCATED ON HWY. 6 WEST
       CONTINGENT ON ACCEPTABLE CUL-DE-SAC BEING ADDED
       AND HAVING PLAT APPROVED




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                                  No. 09-60390

       There came on for consideration the planned unit development by
       H. L. James on property located on Highway 6 West contingent on
       acceptable cul-de-sac being added and plat being approved. After
       consideration and discussion, there was a motion duly made by
       Alderman Johnny Seale and seconded by Alderman Tommy
       Patterson, that said planned unit development be considered
       contingent on acceptable cul-de-sac being added and plat being
       approved. A vote was taken and the motion was unanimously
       carried[.]

James’s revised plat was distributed to Board members and placed on the
agenda for the April meeting. James appeared at that meeting to request that
the Board turn on the utilities at the property. For the first time, he learned that
the December minutes demonstrated that the Board had not approved his
development, and also that the plat he had distributed to Board members did not
conform with the City’s zoning ordinances and building code, because it was
missing certain technical information. He returned to the next Board meeting
with counsel but the Board took the matter under advisement with no action. In
June, the City engineer informed Mayor Rutledge that the James’s revised plat
was non-conforming. The plat was never approved and James never reappeared
before the Board with an approved plat. Eventually, James converted the single
duplex apartment he had built into a single family home, which required no
Board action, and the utilities were turned on at the site.
      The Jameses sued in district court, claiming violation of their due process
rights and a violation of equal protection. On summary judgment, the district
court found that H.L. James lacked standing because the development was not
a joint venture under Mississippi law; that Matthew James did not have a
property interest in the development because the Board’s approval was never
noted in the Board’s minutes as required by Mississippi law and thus there was
no due process violation; and that there was no equal protection violation. James
appeals only the denial of his due process claim.


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                           STANDARD OF REVIEW
      We review a district court’s grant of summary judgment de novo, using the
same standard as that applied by the district court. Riverwood Int’l Corp. v.
Employers Ins. of Wausau, 420 F.3d 378, 382 (5th Cir. 2005). Summary
judgment is appropriate “if the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” F ED. R. C IV.
P. 56(c). This Court views “the evidence in the light most favorable to the
nonmovant, drawing all reasonable inferences in the nonmovant’s favor.”
Riverwood, 420 F.3d at 382.
                                 DISCUSSION
      The issue on appeal is whether James had a property interest in the
development. The district court determined that he did not because the Board’s
minutes do not contain approval of the development, but only a contingent
approval. “The Mississippi Supreme Court has long held that ‘boards of
supervisors and other public boards speak only through their minutes. . . .’”
Urban Developers LLC v. City of Jackson, Miss., 468 F.3d 281, 297 (5th Cir.
2006) (quoting Thompson v. Jones County Cmty. Hosp., 352 So. 2d 795, 796
(Miss. 1977) (emphasis removed)). We have noted that
       The Mississippi Supreme Court has characterized the minutes
       requirement as “an important public policy issue,” cautioning that
       “public interest requires adherence thereto, notwithstanding the
       fact that in some instances the rule may work an apparent
       injustice.” Butler v. Bd. of Supervisors for Hinds County, 659 So.
       2d 578, 579 (Miss. 1995) (quoting Colle Towing Co. v. Harrison
       County, 213 Miss. 442, 57 So. 2d 171, 172 (1952)). Indeed, “the
       policy of protecting the public’s funds for use by and for the public
       is paramount to other individual rights which may also be
       involved.” Butler, 659 So. 2d at 579; see also id. at 581 (discussing
       Mississippi’s “past strict adherence to the requirement that a
       board of supervisors only be bound by a contract entered upon its
       minutes”) and Warren County Port Comm’n v. Farrell Constr., 395

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       F.2d 901, 904 (5th Cir. 1968) (describing the Mississippi
       requirement as “stringent”).

Urban Developers LLC, 468 F.3d at 299. Mississippi law also prohibits the use
of extrinsic evidence to prove the intent of the Board’s minute entries. A Board’s
acts “must be evidenced by an entry on its minutes. The minutes of the board of
supervisors are the sole and exclusive evidence of what the board did. . . . [T]he
minutes of the board of supervisors must be the repository and the evidence of
their official acts.” Myers v. Blair, 611 So. 2d 969, 973 (Miss. 1992) (emphasis
added). Substantial actions taken by a board “must be evidenced by entries on
their minutes, and can be evidenced in no other way.” Board of Sup’rs of
Tishomingo County v. Dawson, 45 So. 2d 253, 256 (Miss. 1950) (quotations
omitted).
      James does not attack the minutes requirement, but claims that the
minutes do not reflect the true decision of the Board and that the videotape
demonstrates that the development was approved. The district court noted that
while a “videotape is very strong extrinsic evidence of what occurred at the
Board meeting . . . the reasoning behind the rule is not affected by the quality
of the evidence.” The minutes requirement is a substantive rule that the
Mississippi Supreme Court has demanded be strictly complied with, not an
evidentiary rule. James has not cited any case in which Mississippi courts have
crafted an exception to the minutes requirement, and we are without power to
craft one here.
                                CONCLUSION
      The judgment of the district court is AFFIRMED.




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