IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2021-CA-00157-COA
LELAND SCHOOL DISTRICT APPELLANT/ CROSS-APPELLEE
v.
MICHELL C. BROWN APPELLEE/ CROSS-APPELLANT
DATE OF JUDGMENT: 01/04/2021 TRIAL JUDGE: HON. DAVID ANTHONY CHANDLER COURT FROM WHICH APPEALED: WASHINGTON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: ROBERT F. STACY JR. ATTORNEY FOR APPELLEE: JAMIE FERGUSON JACKS NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: AFFIRMED - 06/21/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ.
WILSON, P.J., FOR THE COURT:
¶1. The Leland School District appeals a decision of the Washington County Chancery
Court holding that the District improperly terminated Michell Brown’s employment days
after Brown was hired as the District’s special education director. Although the District’s
Board of Trustees found that Brown’s contract was invalid and upheld her dismissal, the
chancellor held that the Board’s decision was not supported by substantial evidence and was
arbitrary and capricious. The chancellor also rejected the District’s argument that the court
lacked jurisdiction because Brown did not request an administrative hearing or appeal her dismissal within statutory deadlines. The chancellor awarded Brown damages of $30,400
based on the difference between her salary under her contract with the District and what she
ultimately earned as a teacher in other school districts.
¶2. On appeal, the District argues that the chancery court lacked jurisdiction to hear
Brown’s case and that there is substantial evidence to support the Board’s decision upholding
Brown’s dismissal. On cross-appeal, Brown argues that the chancellor erred by reducing her
award based on her mitigation of damages and by declining to award attorney’s fees.
However, we find no error and affirm the judgment of the chancery court.
FACTS AND PROCEDURAL HISTORY
¶3. On June 8, 2015, the Board voted to employ Brown as the District’s special education
director for the 2015-2016 school year at an annual salary of $55,000. On June 15, Brown
and then-superintendent Glenda Jackson signed Brown’s employment contract. Brown’s
employment was to begin on July 1, 2015. However, on June 29, 2015, at a special meeting
of the Board, the Board voted to “rescind” its decision to employ Brown. Malcolm Brown
(Malcolm)—the District’s incoming superintendent and Brown’s ex-husband—notified
Brown of the Board’s decision by phone on June 29 or 30. However, the District did not
provide Brown with any written notice of its decision or her statutory right to a hearing.
¶4. In January 2016, Brown’s attorney wrote to the District’s new superintendent,1
alleging that the District breached Brown’s contract. Brown stated that after the Board had
1 Malcolm was no longer the superintendent by this time. The Board dismissed Malcolm in September 2015, after only two months on the job. Malcolm subsequently sued the District and the individual Board members who voted to terminate his employment, alleging breach of contract and violations of his constitutional rights.
2 “rescinded” her contract, she found employment as a teacher in another school district for the
2015-2016 school year but at a lower salary of $39,900. Brown stated that the District owed
her the difference between her salary under her contract and her lower salary as a teacher plus
interest and legal fees. Brown also asked to be reinstated as the District’s special education
director for the 2016-2017 school year.
¶5. In April 2016, Brown filed suit against the District in the County Court of Washington
County. Brown’s complaint alleged a breach of contract and sought damages. According
to the District, the county court later dismissed the complaint for lack of jurisdiction;
however, the county court’s order of dismissal is not in the record on appeal.
¶6. In January 2017, Brown filed suit against the District in the Washington County
Chancery Court. Brown’s complaint again alleged a breach of contract and sought damages.
Brown also alleged that the District failed to notify her of her right to a hearing in violation
of Mississippi Code Annotated sections 37-9-59 (Supp. 2014) and 37-9-111 (Rev. 2019).
¶7. The District filed a motion to dismiss, arguing that the case should be dismissed with
prejudice because Brown failed to appeal the Board’s decision to rescind her employment
within twenty days as required by Mississippi Code Annotated section 37-9-113 (Rev. 2019).
In May 2017, the chancellor denied the District’s motion and instead “referred” the “matter
. . . back to the . . . District” for the District to comply with its statutory obligation to give
Brown proper notice of the reasons for her termination and her right to a hearing. The
District filed a petition for an interlocutory appeal, but a panel of the Supreme Court denied
the petition. Leland Sch. Dist. v. Brown, No. 2017-M-00852-SCT (Miss. July 26, 2017)
3 (panel order).
¶8. In August 2017, the District finally provided Brown with a written “explanation of the
. . . District’s decision to rescind its recommendation to hire [her].” The District asserted that
“Brown was not terminated because she had not started working and her contract was not to
begin until July 1, 2015.” The District further stated:
On June 29, 2015, the Leland School Board voted to rescind multiple staff recommendations, including the recommendation to employ Ms. Brown. These recommendations were rescinded because they were not the recommendations made by superintendent Glenda T. Jackson. Ms. Jackson’s position as superintendent was to end on June 30, 2015. The recommendations were not made by Ms. Jackson, and it would be a better practice for the incoming superintendent to make the recommendations once he took office. In fact, Malcolm Brown took office as Interim Superintendent on July 1, 2015, and in a special board meeting, he made those same staff recommendations, with the exception of Michell Brown.
¶9. In September 2017, a public hearing was held before a hearing officer appointed by
the Board. At the hearing, the District argued that Brown’s contract was invalid because (1)
she had not been recommended by then-superintendent Jackson, and (2) she was not qualified
to serve as the special education director because she did not hold an administrator’s license.2
The District did not call any witnesses or present any evidence at the hearing, and Brown was
the only witness who testified. The hearing officer subsequently issued a report concluding
that Brown’s contract was invalid for the two reasons given by the District. On November
2 Counsel for the District asserted that the District “found out, after the fact,” that Brown was not qualified to be the special education director, and “that could have been the reason that” her ex-husband (Malcolm) “did not recommend” her for the job. However, the District admitted that it did not know the actual reason for Malcolm’s decision. Brown objected that the District failed to mention any issue with her qualifications in its pre-hearing written notice to her. However, the hearing officer overruled Brown’s objection.
4 15, 2017, the Board adopted the hearing officer’s report and conclusions and reaffirmed the
Board’s June 2015 decision to rescind Brown’s employment.
¶10. On December 4, 2017, Brown filed an appeal in the Washington County Chancery
Court pursuant to Mississippi Code Annotated section 37-9-113. On appeal, Brown argued
that the Board’s decision was arbitrary and capricious and violated her statutory and
constitutional rights. She further argued that there was no substantial evidence to support the
Board’s claim that her contract was invalid.
¶11. The District filed a motion to dismiss the appeal for lack of jurisdiction. The District
argued that the chancery court lacked jurisdiction because Brown failed to appeal the Board’s
original (June 2015) decision to rescind her employment within twenty days, as required by
section 37-9-113. The District argued that Brown was aware of the Board’s decision by June
29 or 30, 2015, when Malcolm called her and told her not to report for work. In March 2018,
the chancellor entered an order denying the District’s motion to dismiss.
¶12. In December 2020, following briefing on the merits, a new chancellor3 entered a final
order and judgment holding that the District’s actions and refusal to honor Brown’s contract
were not supported by substantial evidence, were arbitrary and capricious, and violated
Brown’s statutory and constitutional rights. The chancellor held that the District was liable
to Brown for damages of $30,400—the difference between the salary that Brown would have
earned had she been employed by the District during the 2015-2016 and 2016-2017 school
3 The original chancellor left office at the end of 2018. In 2020, after all the chancellors in the district had recused from the case, the Supreme Court appointed former Supreme Court Justice David Chandler to hear the appeal as a special chancellor. See Miss. Code Ann. § 9-1-105(1) (Rev. 2019).
5 years and her actual earnings as a teacher in other school districts during those years.
¶13. On appeal, the District argues that the chancery court lacked jurisdiction to consider
Brown’s complaint and subsequent appeal because Brown did not appeal the Board’s 2015
decision to rescind her employment within twenty days, as required by statute. The District
also argues that the Board’s decision was based upon substantial evidence, was not arbitrary
or capricious, and did not violate Brown’s statutory or constitutional rights because Brown
had not been recommended by the superintendent and was not qualified for the position. On
cross-appeal, Brown argues that the chancellor should have awarded her additional damages
and attorney’s fees.
ANALYSIS
I. The chancery court had jurisdiction.
¶14. Before a licensed school employee may be dismissed, the employee must “be notified
of the charges against him and . . . advised that he is entitled to a public hearing upon said
charges.” Miss. Code Ann. § 37-9-59. If the employee requests a hearing, it must be held
within thirty days before the school board or a hearing officer appointed by the board. Id.;
Miss. Code Ann. § 37-9-111. If the school board upholds the dismissal, the employee may
seek judicial review by filing a petition and bond in chancery court “within twenty (20) days
of the receipt of the final decision of the board.” Id. § 37-9-113(1)-(2). Applying these
statutes, this Court has held that the timely filing of a petition for appeal is jurisdictional and
that the chancery court has only appellate jurisdiction with respect to the dismissal of a
licensed school employee. LaCour v. Claiborne Cnty. Sch. Dist., 119 So. 3d 1128, 1133-36
6 (¶¶24, 26-27, 30-31) (Miss. Ct. App. 2013). Therefore, in general, a chancery court lacks
jurisdiction to hear a licensed school employee’s “claim for breach of contract as an original
action and not as an appellate action.” Id. at 1135 (¶30). Thus, the District argues that the
chancery court lacked jurisdiction and should have dismissed Brown’s 2017 complaint and
subsequent appeal with prejudice because Brown failed to appeal within twenty days of the
Board’s June 2015 decision to rescind her employment.
¶15. However, in Noxubee County School Board v. Cannon, 485 So. 2d 302 (Miss. 1986),
the Supreme Court held that a chancery court does have “original jurisdiction” to hear a
complaint filed by a licensed school employee if the school district failed to comply with the
notice and hearing requirements of the School Employment Procedures Law, now known as
the Education Employment Procedures Law of 2001, Miss. Code Ann. §§ 37-9-101 to -113
(Rev. 2019). Cannon, 485 So. 2d at 305. In Cannon, the school board failed to give a
teacher written notice of the nonrenewal of her contract, the reasons for the nonrenewal, or
her statutory right to a hearing. Id. Not having received this notice, the teacher did not
request a hearing or commence a statutory appeal under section 37-9-113. Id. Instead, she
waited several months and then filed a complaint (i.e., an original action) in chancery court
for back pay. Id. at 304. In response, the school district argued that “the chancery court
lacked original jurisdiction . . . because [the teacher] did not request a hearing before the
school board to contest her nonrenewal.” Id. at 305. The Supreme Court agreed that “the
chancery court does not have original jurisdiction to hear matters concerning nonrenewal of
teachers’ contracts when the school board has made a substantial and good faith attempt to
7 comply with the School Employment Procedures Law.” Id. In Cannon, however, “[t]he
school board failed to provide [the teacher] with written notice of nonrenewal, nor was she
given an opportunity for a hearing before the board at which to present matters relevant to
the reasons given for the nonreemployment decision.” Id. The Supreme Court held that
because the school board failed to provide statutory notice, the teacher “properly invoked the
original jurisdiction of the chancery court.” Id.
¶16. Here, the District attempts to distinguish Cannon on the ground that it involved a
nonrenewal of a teacher’s contract rather than a dismissal. However, we conclude that
Cannon’s reasoning applies in this context as well. A hearing to contest a dismissal proceeds
under the same statute as a hearing to contest a nonrenewal. See Miss. Code Ann. §§ 37-9-59
& -111. In addition, the right to judicial review arises under the same statute in either case.
See id. § 37-9-113. The employee’s right to receive proper notice is just as important in this
context as it is in the case of a nonrenewal. Indeed, the right to proper notice is especially
important in the case of a termination because “[i]n the event that an employee does not
request a hearing within five (5) calendar days of the date of the notice of discharge . . . , it
shall constitute a waiver of all rights by said employee and such discharge . . . shall be
effective on the date set out in the notice to the employee.” Id. § 37-9-59; see 7 Jeffrey
Jackson et al., Encyclopedia of Mississippi Law § 65:94, at 426 (2d ed. 2018).4 Therefore,
we conclude that Cannon is controlling and that the chancery court had jurisdiction to hear
Brown’s original complaint and subsequent appeal from the Board’s final decision.
4 An employee has ten days to request a hearing after receiving a notice of nonrenewal. Miss. Code Ann. § 37-9-109.
8 ¶17. Moreover, under Mississippi Code Annotated section 37-9-59, a licensed school
employee’s time to request a hearing does not begin to run until the school district gives the
employee proper statutory notice of the charges against her and her right to a hearing. See
Miss. Code Ann. § 37-9-59. Here, the District failed to provide Brown with proper notice
until August 2017, at which point she timely requested a hearing. In addition, following an
adverse decision by the Board, Brown timely sought judicial review. Accordingly, under the
applicable statutes and the Supreme Court’s decision in Cannon, the chancery court had
jurisdiction in this case.
II. The Board’s decision was not supported by substantial evidence and was arbitrary and capricious.
¶18. As discussed above, the Board adopted the hearing officer’s findings that Brown’s
contract was invalid and her dismissal was proper because she (1) had not been
recommended by then-superintendent Jackson and (2) was not qualified to serve as the
special education director because she did not hold an administrator’s license. The
chancellor, however, held that the Board’s decision was not supported by substantial
evidence and was arbitrary and capricious.
¶19. The superintendent of a school district may dismiss a licensed school employee for
good cause. Miss. Code Ann. § 37-9-59. The employee is entitled to notice of the reasons
for her dismissal and may request a public hearing before the school board. Id. “The school
board is the administrative agency charged by statute with making the ultimate employment
decision in all teacher dismissal . . . cases.” Noxubee Cnty. Bd. of Educ. v. Givens, 481 So.
2d 816, 819 (Miss. 1985). “In a hearing concerning a dismissal, the burden is on the
9 superintendent to show that a principal or teacher has been dismissed for good cause.”
Jackson Pub. Sch. Dist. v. Mason, 295 So. 3d 484, 489 (¶13) (Miss. Ct. App. 2019) (brackets
omitted) (quoting Miss. Emp. Sec. Comm’n v. Phila. Mun. Separate Sch. Dist., 437 So. 2d
388, 394 n.4 (Miss. 1983)), cert. denied, 293 So. 3d 832 (Miss. 2020). If the school board
upholds the dismissal, the employee has a right to judicial review in chancery court. Miss.
Code Ann. § 37-9-59; Miss. Code Ann. § 37-9-113(1).
¶20. On appeal, this Court must review the Board’s decision “applying the same standard
of review as the chancery court. Thus, in substance, this Court reviews the [B]oard’s
decision, not the ruling of the chancery court on appeal.” Mason, 295 So. 3d at 488-89 (¶10)
(citation omitted). Like the chancellor, we must affirm the Board’s decision unless it “is
unlawful for the reason that it was: (a) Not supported by any substantial evidence; (b)
Arbitrary or capricious; or (c) In violation of some statutory or constitutional right of the
employee.” Miss. Code Ann. § 37-9-113(3).
¶21. A school board’s decision is supported by substantial evidence if the “evidence
affords a substantial basis of fact from which the fact in issue can be reasonably inferred.”
Leigh v. Aberdeen Sch. Dist., 207 So. 3d 1276, 1281 (¶19) (Miss. Ct. App. 2016) (quotation
mark omitted). “[S]ubstantial evidence amounts to more than a mere scintilla of evidence,
and does not rise to the level of a preponderance of the evidence.” Id. (quotation marks
omitted). “An act is arbitrary when it is not done according to reason or judgment, but
depending on the will alone.” Burks v. Amite Cnty. Sch. Dist., 708 So. 2d 1366, 1370 (¶14)
(Miss. 1998). An action is “capricious” if it is “done without reason, in a whimsical manner,
10 implying either a lack of understanding of or a disregard for the surrounding facts and settled
controlling principles.” Id.
¶22. We first address the District’s claim that Brown’s contract was invalid because then-
superintendent Jackson had not recommended her. The District notes that licensed school
employees must be recommended by the superintendent and that the Board lacks the power
to employ persons whom the superintendent has not recommended. Miss. Code Ann. § 37-9-
17(1) (Rev. 2019); Lott v. State ex rel. Kelly, 239 Miss. 96, 104-05, 121 So. 2d 402, 405
(1960). The District further notes that the minutes of the Board’s June 8, 2015 meeting—at
which the Board voted to hire Brown—do not specifically state that Jackson had
recommended Brown. In contrast, the minutes of the Board’s June 29, 2015 meeting—at
which the Board purported to “rescind” Brown’s hiring—do reflect that the Board approved
certain other “Superintendent’s recommendations.” The Board’s minutes do not state why
the Board decided to “rescind” Brown’s employment, but based solely on the minutes of
these two Board meetings, the District argues that “[t]he record made before the hearing
officer established that the recommendation to employ Brown was not made by . . . Jackson.”
We disagree.
¶23. As stated above, the District had the burden of proof at Brown’s hearing. Mason, 295
So. 3d at 489 (¶13). Nonetheless, the District produced no evidence, other than the Board’s
minutes, to support its claim that Jackson did not recommend Brown. Moreover, the Board’s
minutes reflect that Jackson was present at the meeting when the Board approved Brown’s
employment. In addition, in her capacity as the District’s superintendent, Jackson
11 subsequently signed Brown’s contract. That contract began by stating that Brown had “been
duly elected and approved for employment by the [Board] of the [District].” Finally, as a
matter of law, the Board’s original decision to employ Brown carries with it a presumption
of regularity. As the Mississippi Supreme Court has explained,
[t]he official action of the governing authorities of a municipal corporation in this state are presumed valid, albeit rebuttably so. What this means—and the point is critical in this case—is that those who would challenge the formal regularity of the prior act of a municipal corporation bear the burden of demonstrating affirmatively wherein the failures occurred. No doubt as a practical matter proof of a negative may be difficult, particularly where a number of years have elapsed. Yet we regard the presumption vital in that otherwise untold scores of official actions may be invalidated, not because the board or agency failed of compliance, but because the draftsman of the minutes failed to use the requisite magic words.
Luter v. Oakhurst Assocs. Ltd., 529 So. 2d 889, 894 (Miss. 1988) (citations omitted).
Although Luter involved an official action of a board of aldermen, its reasoning also applies
to official actions of other public officers and bodies, such as superintendents and school
boards.5 Therefore, we presume that the Board and then-superintendent Jackson followed
proper procedures in hiring Brown. The District presented no evidence to rebut that
presumption. Accordingly, there is no substantial evidence to support the Board’s finding
on this issue.
¶24. We next address the District’s claim that “the record before the hearing [officer]
established Brown was not qualified for the position” of special education director. In
support of this claim, the District relies on a portion of the hearing transcript in which Brown
5 See United States v. Chem. Found., 272 U.S. 1, 14-15 (1926) (“The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.”).
12 testified that the position of special education director requires a master’s degree, that she has
a master’s degree, and that she does not have an administrator’s license. However, Brown
did not testify that an administrator’s license was a requirement for the position. Moreover,
the District offered no other evidence of any of the necessary qualifications for the position.
Thus, at Brown’s hearing, the District failed to present even “a mere scintilla of evidence”
that Brown was not qualified for the position. Leigh, 207 So. 3d at 1281 (¶19).
¶25. In the chancery court, the District attempted to supplement its challenge to Brown’s
qualifications with an undated document that purports to state the required qualifications for
the special education director. However, the chancellor struck the document from the record
because it was not offered or admitted during the administrative hearing before the hearing
officer. The chancellor’s ruling was proper because an appeal pursuant to section 37-9-113
“shall be limited to a review of the record made before the school board or hearing officer.”
Miss. Code Ann. § 37-9-113(3); see Amite Cnty. Sch. Dist. v. Floyd, 935 So. 2d 1034, 1039
(¶6) (Miss. Ct. App. 2005) (“[T]he chancellor . . . was in error in looking beyond the record
before the school board.”). Moreover, even this undated, unauthenticated document indicates
that the Board may, in its discretion, employ a special education director without an
administrator’s license. Accordingly, the Board’s argument that Brown was not qualified for
the position is without merit.
¶26. In summary, there is no substantial evidence to support the Board’s finding that
Brown’s contract was invalid. Thus, there is also no substantial evidence to support the
Board’s decision to terminate Brown’s employment. The Board’s decision is also arbitrary
13 and capricious because “it necessarily follows that [a] decision is arbitrary and capricious”
if it “is not based on substantial evidence.” Pub. Emps.’ Ret. Sys. v. Marquez, 774 So. 2d
421, 430 (¶35) (Miss. 2000). Therefore, we affirm the chancellor’s reversal of the Board’s
decision. We now address the issues raised by Brown on cross-appeal.
III. Brown is not entitled to additional damages or attorney’s fees.
A. Damages
¶27. As discussed above, the chancellor awarded Brown damages of $30,400, which
represented the difference between (a) the salary that Brown would have earned had she been
employed by the District as its special education director for the 2015-2016 and 2016-2017
school years and (b) Brown’s actual earnings as a teacher in other school districts. On cross-
appeal, Brown argues that chancellor awarded her inadequate damages. Specifically, Brown
argues that she is entitled to recover as damages her full salary from the start date of her
contract (July 1, 2015) through the date she finally received an administrative hearing
(September 22, 2017). She calculates this amount to be $121,450. Brown argues that the
“plain language” of Mississippi Code Annotated section 37-9-59 requires an award of “full
back pay” and does not permit a reduction for “mitigation” of damages. In the alternative,
Brown argues that she should receive at least one year of “full back pay” ($55,000).
¶28. Section 37-9-59 provides that a licensed school employee generally is entitled to
notice and a hearing prior to her dismissal. Miss. Code Ann. § 37-9-59. As relevant here,
the statute further provides:
In the event the continued presence of said employee on school premises poses a potential threat or danger to the health, safety or general welfare of the
14 students, or, in the discretion of the superintendent, may interfere with or cause a disruption of normal school operations, the superintendent may immediately release said employee of all duties pending a hearing if one is requested by the employee. . . . The school board, upon a request for a hearing by the person so suspended or removed shall set a date, time and place for such hearing which shall be not sooner than five (5) days nor later than thirty (30) days from the date of the request. . . . In the event that a licensed employee is immediately relieved of duties pending a hearing, as provided in this section, said employee shall be entitled to compensation for a period up to and including the date that the initial hearing is set by the school board, in the event that there is a request for such a hearing by the employee.
Id. Brown focuses on the final sentence quoted above, arguing that it entitles her to an
unreduced award of “full back pay” for the two-plus years between her dismissal and her
eventual hearing. We cannot accept Brown’s argument for two reasons.
¶29. First, the single sentence that Brown cites does not apply in this case. That sentence
applies only when the superintendent decides to temporarily “release [an] employee of all
duties pending a hearing.” Id. This may occur only when the superintendent concludes that
the employee’s “continued presence . . . on school premises poses a potential threat or danger
to . . . students” or will otherwise interfere with or disrupt school operations. Id. The statute
provides that in that scenario, if the employee does request a hearing, the employee shall
continue to be paid until the date of the initial hearing—a brief period not to exceed thirty
days. Id. The employee’s right to pay during that brief period is automatic and is not
contingent on the outcome of the hearing or any appeal. Id. This limited right to continued
pay is inapplicable in this case. Brown was not temporarily “relieved of duties pending a
hearing” because she was a “threat or danger” to students or school operations. Rather, the
District permanently dismissed Brown from her position.
15 ¶30. Second, the Mississippi Supreme Court and this Court have recognized that “[w]hen
an employee is entitled to back pay, he has a duty to mitigate his damages.” City of Laurel
v. Brewer, 919 So. 2d 217, 227 (¶40) (Miss. Ct. App. 2005) (citing Eidt v. City of Natchez,
382 So. 2d 1093, 1095 (Miss. 1980)). In Byrd v. Greene County School District, 633 So. 2d
1018 (Miss. 1994), the chancellor found that a school guidance counselor had been
wrongfully terminated and awarded him actual damages based on the difference between the
amount he was supposed to earn under his contract with the Greene County School District
and the amount he “actually earned under his . . . contract with the Wayne County School
District.” Id. at 1021-22. On appeal, the Supreme Court affirmed the chancellor’s “award
of actual damages . . . based on the difference between [the counselor’s] salary under the
terms of the Greene County contract and the new agreement he reached with the Wayne
County School District.” Id. at 1025.
¶31. In the present case, Brown was employed as a teacher in other school districts during
the 2015-2016 and 2016-2017 school years. Consistent with the Supreme Court’s decision
in Byrd and the general rule that an employee entitled to back pay has a duty to mitigate
damages, the chancellor properly reduced Brown’s award to account for her actual earnings
as a teacher during those years. Accordingly, we find no reversible error in the chancellor’s
award of damages.
B. Attorney’s Fees
¶32. Finally, Brown argues on cross-appeal that the chancellor should have awarded her
attorney’s fees under the Litigation Accountability Act, Miss. Code Ann. § 11-55-5(1) (Rev.
16 2019), or because the District violated her due process rights. The chancellor considered
these same arguments and declined to award attorney’s fees. We find no reversible error in
the chancellor’s decision on this issue.
¶33. “Mississippi follows the American rule regarding attorney fees: unless a statute or
contract provides for imposition of attorney fees, they are not recoverable. When there is no
contractual provision or statutory authority providing for attorney fees, they may not be
awarded as damages unless punitive damages are also proper.” Century 21 Deep S. Props.
Ltd. v. Corson, 612 So. 2d 359, 375 (Miss. 1992) (citation omitted).
¶34. Brown argues that attorney’s fees are due under the Litigation Accountability Act,
which provides in part that a
court shall award . . . reasonable attorney’s fees . . . against any party or attorney if the court . . . finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct including, but not limited to, abuse of discovery procedures available under the Mississippi Rules of Civil Procedure.
Miss. Code Ann. § 11-55-5(1). Under the Act, a claim or defense is “without substantial
justification” if it is “frivolous, groundless in fact or in law, or vexatious, as determined by
the court.” Miss. Code Ann. § 11-55-3(a) (Rev. 2019).
¶35. Brown is not entitled to attorney’s fees under the Litigation Accountability Act.
Although we have ruled in Brown’s favor on the merits, we cannot say that the District’s
legal arguments are entirely “frivolous” or otherwise sanctionable. Therefore, we cannot say
that the chancellor abused his discretion by not awarding attorney’s fees. See, e.g., Est. of
17 Pannagl v. Lambert, 166 So. 3d 39, 41 (¶6) (Miss. Ct. App. 2014) (“When reviewing a
decision regarding the question of whether to apply sanctions under . . . the Litigation
Accountability Act, the proper standard is abuse of discretion.”).
¶36. Brown also argues that the chancellor should have awarded her attorney’s fees
because the District violated her due process rights. In support of this argument, Brown cites
a single case, Warren County Board of Education v. Wilkinson ex rel. Wilkinson, 500 So. 2d
455 (Miss. 1986). In that case, after finding that a school board had violated a student’s
procedural due process rights, the chancellor issued an injunction and also awarded $1,000
in attorney’s fees to the student. Id. at 457-58. The Supreme Court affirmed the chancellor’s
decision, id. at 462, but it did not address the issue of attorney’s fees. Indeed, the opinion’s
only mention of attorney’s fees was within a lengthy block quote from the chancellor’s
ruling. Id. at 458. In the absence of any discussion of the issue, Wilkinson does not establish
a right to attorney’s fees in every case in which a school board violates a party’s rights.6
Brown cites no other legal basis to support her claim for attorney’s fees. Therefore, the
chancellor did not err by denying her request for fees.
CONCLUSION
¶37. The chancellor properly denied the District’s motion to dismiss for lack of
jurisdiction. In addition, the chancellor properly held that the Board’s decision upholding
6 See, e.g., Alias v. City of Oxford, 70 So. 3d 1114, 1118 (¶16) (Miss. Ct. App. 2010) (“It is a long-standing legal principle that a decision is not precedent for a legal point if that point is not considered by the reviewing court.”); Johnson v. State, 44 So. 3d 400, 408 (¶23) (Miss. Ct. App. 2010) (“[I]f a point is not considered by a reviewing court in a previous decision, it is not regarded as precedent[.]”).
18 Brown’s dismissal was not supported by substantial evidence and was arbitrary and
capricious. As to Brown’s cross-appeal, the chancellor did not err by not awarding additional
damages or attorney’s fees. Accordingly, we affirm the chancery court’s judgment.
¶38. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: AFFIRMED.
BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.