Carl Bailey, As a Constable of Western District of Jefferson County v. Jefferson County Board of Supervisors, James Wells, Cammie Hutherson, Jerry Wilson and SD Johnson, Jr.

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-CP-00950-COA

CARL BAILEY, AS A CONSTABLE OF APPELLANT
WESTERN DISTRICT OF JEFFERSON
COUNTY

v.

JEFFERSON COUNTY BOARD OF APPELLEES
SUPERVISORS, JAMES WELLS, CAMMIE
HUTHERSON, JERRY WILSON AND SD
JOHNSON, JR.

DATE OF JUDGMENT: 08/08/2022
TRIAL JUDGE: HON. FORREST A. JOHNSON JR.
COURT FROM WHICH APPEALED: JEFFERSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: CARL BAILEY (PRO SE)
ATTORNEY FOR APPELLEES: NICKITA SHANTA BANKS
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: REVERSED, RENDERED, AND
REMANDED - 09/19/2023
MOTION FOR REHEARING FILED:

BEFORE BARNES, C.J., GREENLEE AND EMFINGER, JJ.

BARNES, C.J., FOR THE COURT:

¶1. In 2021, this Court remanded this case to the Jefferson County Circuit Court for a

determination of whether the Jefferson County Board of Supervisors (Board) had improperly

removed Carl Bailey from his position as constable. Bailey v. Jefferson Cnty. Bd. of Sup’rs,

322 So. 3d 479, 483 (¶15) (Miss. Ct. App. 2021). The circuit court concluded that there was

not substantial evidence in the record “to support the [B]oard’s ultimate decision.” The court

further determined, however, that Bailey’s “claim for relief or damages is no longer viable.”

¶2. Bailey appeals the circuit court’s ruling on damages. Based on the Mississippi
Supreme Court’s decision in City of Durant v. Laws Construction Co., 721 So. 2d 598 (Miss.

1998), we find that damages would be an appropriate remedy in this instance. We reverse

the court’s judgment, render judgment in favor of Bailey, and remand for a hearing and

ruling on damages.

FACTS AND PROCEDURAL HISTORY

¶3. After it was alleged that Bailey, the constable for the western district of Jefferson

County, had moved out of his district, the county administrator sent Bailey a letter dated

November 23, 2016, informing him “that his move had violated election laws and requested

his appearance at the next scheduled board meeting on December 5, 2016.” Bailey, 322 So.

3d at 480 (¶2). “In September 2017, the Board filed a complaint for writ of quo warranto in

the circuit court, . . . assert[ing] that Bailey continued to act as constable, preventing the

Board from filling the position or calling a special election.” Id. at (¶3). On March 8, 2018,

the circuit court dismissed the complaint without prejudice because the Board’s complaint

for a public writ “had not been brought by a proper party for the State—the district attorney

or Attorney General.” Id. at 481 (¶4).

¶4. On May 7, 2018, the Board voted during an executive session to remove Bailey as

constable. Id. at (¶5). Bailey appealed by filing a bill of exceptions with the circuit court on

May 21, 2018, claiming that his removal “was unlawful and violated his constitutional right

to due process.”1 Id. at (¶6). Seeking “general relief,” Bailey asked that the court vacate the

1
See Miss. Code Ann. § 11-51-75 (Rev. 2012) (providing that “[a]ny person
aggrieved by a judgment or decision of the board of supervisors [of a county] . . . may
appeal . . . [the] judgment or decision . . . [by] a bill of exceptions to the circuit court . . . .”).

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Board’s decision. Id. The Board meanwhile set a date for a special election. Id. “On

August 6, 2018, Bailey filed a combined petition for a temporary restraining order and a

motion for a preliminary injunction in the circuit court,” reasserting his claim “that he was

unlawfully removed from office.” Id. Bailey requested that the court “enjoin the Board from

continuing with its decision to vacate the constable position, from interfering with his

capacity as a duly elected official, and from continuing with the special election.” Id. He

also sought “payment for damages and costs sustained in light of the interference with his

duty to serve papers; court costs; attorney’s fees; and any compensatory damages consistent

with this court.” Id. On August 2, 2019, the circuit court found that Bailey’s bill of

exceptions was untimely filed under Mississippi Code Annotated section 11-51-75 (Rev.

2012) and dismissed the action.2 Id. at (¶7).

¶5. On appeal, this Court concluded that although Bailey’s bill of exceptions was

untimely filed, the circuit court’s dismissal on the basis of jurisdiction was erroneous because

the Board had failed to provide Bailey with “sufficient notice” of the proceeding. Id. at 482

(¶¶13-14). We remanded to the circuit court for a determination of “whether Bailey ha[d]

preserved any claim for relief or damages, including whether he was eligible to serve in his

prior elected office because of his residency.” Id. at 483 (¶15).

¶6. In its “Order Upon Remand,” the circuit court found that the record did not contain

substantial evidence to support the Board’s decision to remove Bailey from his position as

2
Section 11-51-75 required a person to “appeal within ten (10) days from the date
of adjournment at which session the board . . . rendered such judgment or decision . . . .”

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constable. Yet the court declined to award damages, stating “that any further claim for relief

or damages is no longer viable.” On June 24, 2022, Bailey filed an omnibus motion to

amend the findings or for relief from the judgment, arguing that he should be awarded

compensatory damages. The court denied Bailey’s motion, stating that “[t]o address the issue

of damages on the full record before the court as it is would be speculative and without

sufficient evidentiary basis to do so.” Bailey appeals from the court’s judgment, claiming

that he is entitled to damages.

DISCUSSION

¶7. The sole issue on appeal is whether the circuit court erred in finding that Bailey was

not entitled to damages as a result of the Board’s removal of him from office without proper

notice. The Board has not filed an appellee’s brief. The Mississippi Supreme Court has

adopted two approaches in reviewing cases where the appellee has failed to file a brief.

“First, the Court may ‘accept appellant’s brief as confessed and reverse.’” Stratton v.

McKey, 298 So. 3d 999, 1003 (¶11) (Miss. 2020) (quoting May v. May, 297 So. 2d 912, 913

(Miss. 1974)). This course of action is appropriate “when the record is voluminous or

complicated and the appellant’s thorough treatment of the issues in the brief makes out an

apparent case of error.” Id. (internal quotation marks omitted). “The second alternative is

to disregard the appellees’ error and affirm.” Id. (quoting Miller v. Pannell, 815 So. 2d 1117,

1119 (¶7) (Miss. 2002)). “This alternative should be used when the record can be

conveniently examined and such examination reveals a sound and unmistakable basis or

ground upon which the judgment may be safely affirmed.” Id. (quoting Miller, 815 So. 2d

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at 1119 (¶7)).

¶8. Although the record in this case is neither complicated nor voluminous, we

nevertheless take the Board’s failure to file an appellee’s brief under the circumstances as

a confession of error with regard to its decision to remove Bailey from office. Moreover, we

find that Bailey has established apparent error as to the circuit court’s failure to consider

damages in this instance. See, e.g., McGrew v. McGrew, 184 So. 3d 302, 306 (¶11) (Miss.

Ct. App. 2015) (finding that although the record was “not complicated or voluminous,” the

appellant presented an apparent case of error; so “the error was confessed, since no

appellee’s brief was filed”).

¶9. In City of Durant, the supreme court examined whether a circuit court, “sitting as an

appellate court pursuant to [section] 11-51-75, without a jury, may award and determine

compensatory damages and attorney’s fees.” City of Durant, 721 So. 2d at 605 (¶29). In that

case, “since the project was precluded from being awarded to [the contractor] due to its

substantial completion, the circuit court determined that [the contractor] was entitled to

recover damages.” Id. at (¶28). The supreme court affirmed the circuit court’s finding that

the contract had been illegally awarded and that the contractor was entitled to damages as

measured by the law of contracts. Id. at 606 (¶34).

¶10. In sum, because the trial court determined that the City of Durant had acted illegally,

the project was substantially completed, and the City of Durant conceded that it would have

awarded the contract to Laws Construction as the next lowest bidder, the only relief available

was compensatory damages. Id.; see also W.G. Yates & Sons Const. Co. v. City of Waveland,

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168 So. 3d 963, 975 (¶¶64-65) (Miss. Ct. App. 2012) (holding that the circuit court erred in

dismissing contractor’s bill of exceptions and that the contractor was “entitled to a hearing

on [compensatory] damages consistent with City of Durant”); cf. Preferred Transport Co.

v. Claiborne Cnty. Bd. of Sup’rs, 32 So. 3d 549, 554 (¶15) (Miss. Ct. App. 2010) (noting that

in City of Durant, “it was impossible to award the contract to Laws Construction at that point

and only an award of damages would be an equitable remedy”) (emphasis added)).3

¶11. While the basis for relief in City of Durant was based on the law of contracts, we find

the equitable principle behind its holding is nonetheless applicable to the circumstances of

this case. “For a legal wrong, there must be a remedy.” City of Durant, 721 So. 2d at 605

(¶31). The circuit court found that the Board’s decision to remove Bailey from office was

not supported by substantial evidence. The court further recognized that Bailey’s “claims for

injunctive relief were moot due to the expiration of the term of office in question.”

Therefore, like the contractor in City of Durant, Bailey’s only remedy in this instance would

be compensatory damages.

¶12. In this instance, we see no reason why Bailey would not be entitled, at least, to the

amount of compensation he would have received as a constable had the Board not improperly

removed him from office. Accordingly, we reverse the circuit court’s judgment, render

judgment in favor of Bailey, and remand to the circuit court for a hearing and ruling on

damages.

3
Because the vendor contract in Preferred Transport involved ongoing services and
could be renewed, this Court found that an award of compensatory damages was not
warranted. Preferred Transport, 32 So. 3d at 554 (¶15).

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¶13. REVERSED, RENDERED, AND REMANDED.

CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS,
LAWRENCE, McCARTY AND SMITH, JJ., CONCUR. EMFINGER, J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION. McDONALD, J., NOT
PARTICIPATING.

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