Belmont Holding, LLC v. Davis Monuments, LLC

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2017-CA-01249-SCT
BELMONT HOLDING, LLC
v.
DAVIS MONUMENTS, LLC AND JASON DAVIS,
INDIVIDUALLY
DATE OF JUDGMENT: 06/26/2017
TRIAL JUDGE: HON. DALE HARKEY
TRIAL COURT ATTORNEYS: RUSSELL S. GILL
JOSEPH R. TRAMUTA
W. HARVEY BARTON
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JOSEPH R. TRAMUTA
RUSSELL S. GILL
ATTORNEY FOR APPELLEES: W. HARVEY BARTON
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED - 09/13/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
COLEMAN, JUSTICE, FOR THE COURT:
¶1. The present appeal stems from a circuit court’s judgment dismissing an appeal from
county court for lack of appellate jurisdiction. Discerning no error, we affirm.
STATEMENT OF THE CASE
¶2. Belmont Holding, LLC, filed a complaint in replevin in the County Court of Jackson
County against Davis Monuments, LLC, and Jason Davis, individually. The case proceeded
to trial. The county court denied the replevin and entered a final judgment. Aggrieved by
the county court’s final judgment, Belmont filed a notice of appeal within thirty days of the
final judgment. However, Belmont did not pay the cost bond within thirty days of the final
judgment as required by Mississippi Code Section 11-51-79 (Rev. 2012).
¶3. The Circuit Court of Jackson County, sitting as an appellate court, dismissed
Belmont’s appeal for lack of appellate jurisdiction because Belmont had failed to pay the cost
bond within thirty days of the county court’s final judgment as required by Section 11-51-79.
Belmont appeals, arguing that the circuit court had appellate jurisdiction.
¶4. The overarching issue before the Court is whether the circuit court lacked appellate
jurisdiction because Belmont had failed to pay the cost bond within the time period
prescribed in Section 11-51-79. Because the circuit court lacked appellate jurisdiction due
to Belmont’s failure, we affirm the circuit court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
¶5. The pertinent procedural history and facts are not disputed. On March 8, 2016,
Belmont filed a complaint in replevin against Davis in county court. Davis filed a
counterclaim, and the case proceeded to a bench trial on March 28, 2016. On April 5, 2016,
the county court entered an order denying the replevin, directing that Belmont immediately
return certain property, and dismissing the case with prejudice. On April 12, 2016, Belmont
filed a motion to alter or amend the judgment under Rule 59 of the Mississippi Rules of Civil
Procedure. Belmont requested that the county court issue findings of fact and conclusions
of law. On April 28, 2016, the county court entered a final judgment with findings of fact
2
and conclusions of law. Again, the county court denied the replevin and ordered Belmont
to restore certain property to Davis.
¶6. On May 24, 2016, Belmont filed a notice of appeal. On May 26, 2016, the circuit
clerk issued its estimated costs for appeal, which was $374. On the same day, the official
court reporter issued its estimated cost for preparing the trial transcript, which was $38.
According to Belmont, it paid the cost bond between June 8, 2016, and June 16, 2016.1 On
June 21, 2016, Belmont filed a certificate of compliance. On June 24, 2016, the circuit clerk
entered a notation on the docket that $374 had been paid by reference to Belmont’s check
#1058.
¶7. On March 8, 2017, Belmont filed its brief in support of its appeal. On May 1, 2017,
Davis filed a motion to dismiss the appeal for lack of jurisdiction because Belmont had failed
to pay the cost bond within thirty days of the county court’s final judgment. Davis argued
that Belmont’s failure to pay the appeal bond, i.e., cost bond,2 within thirty days was a
1
In support, Belmont references a check in the amount of $412.40 dated June 8, 2016,
which cleared on June 16. The actual amount of the cost bond is not at issue and not relevant
for purposes of the issues on appeal. According to Davis and Belmont at the trial level,
Belmont paid the cost of appeal in the amount of $374 on June 14, 2016. The circuit court
later found that the appeal bond (or cost bond) had been paid on June 26, 2016, which is
consistent with the trial court docket. Whether the cost bond was paid on June 8, June 14,
June 16, or June 26, our analysis is not affected, because it is undisputed that Belmont did
not timely pay its cost bond.
2
The Court has explained: “The bond required to perfect an appeal is a cost bond,
which is sometimes referred to as an appeal bond. The bond required to obtain a stay of
execution of a judgment while the judgment is being appealed is a supersedeas bond, also
referred to as an appeal bond.” T. Jackson Lyons & Assocs., P.A. v. Precious T. Martin,
Sr. & Assocs., PLLC, 87 So. 3d 444, 448 (¶ 13) (Miss. 2012). The Court also cautioned that
litigants “would be well served to use the terms ‘cost bond’ and ‘supersedeas bond’ as
appropriate and avoid using the term ‘appeal bond’ to prevent confusion. Id. at 449 n.6.
3
jurisdictional requirement. A hearing was held on June 13, 2017. At the hearing, Belmont
argued that it was unable to pay the cost bond on time because the circuit court did not
provide its estimate of cost until May 26, 2016. Davis argued that Belmont had a duty under
Section 11-51-79 timely to pay the cost bond, regardless of what the clerk had done.
¶8. On June 26, 2017, the circuit court entered an order granting Belmont’s motion to
dismiss. The circuit court found that Davis’s failure to post the cost bond within the
statutorily mandated thirty days deprived it of jurisdiction. The circuit court found that
Belmont had paid the appeal cost (cost bond), to the circuit clerk on June 24, 2016. The
circuit court found in pertinent part that Belmont:
did not file their notice of appeal until May 24, 2016, giving themselves only
four days to perfect their appeal by posting a cost bond. By the time the
Circuit Clerk provided their estimate, [Belmont] still had two (2) days to pay
before time expired. [Belmont] did not pay the Clerk’s estimated cost of appeal
until almost a month after it was provided, well outside of the statutory period
for filing a cost bond. Furthermore, Rule 11 of the Mississippi Rules of
Appellate Procedure provide[s] that when an appellant is unable to receive an
estimate of cost from the clerk then the appellant should calculate the cost of
the appeal “at the statutory rate per page for the approximate number of pages
of clerk’s papers.” As both the filing of an appeal and the posting of a cost
bond are what give this Court jurisdiction to hear an appeal from County Court
under Miss. Code Ann. [§] 11-51-79, this Court finds that the failure to pay the
cost bond within the statutorily mandated thirty (30) days deprives this Court
of jurisdiction.
¶9. On July 21, 2017, Belmont filed a motion to reinstate the appeal. Belmont argued that
it was entitled to a notice of the deficiency of its appeal from the circuit clerk under
Mississippi Rule of Appellate Procedure 2(a)(2). Belmont continued that the failure to give
it official notice of the deficiency violated its due process rights. Belmont also argued that
Section 11-51-79’s requirement of the payment of the cost bond conflicts with Mississippi
4
Rule of Appellate Procedure 3, because Rule 3 provides that timely filing a notice of appeal
is the only requirement to perfect an appeal. Belmont argued that, because of the conflict,
Rule 3(a) supersedes Section 11-51-79.
¶10. On August 18, 2017, the circuit court denied Belmont’s motion. The circuit court
found that the failure to perfect an appeal by paying a cost bond is not a deficiency as
contemplated by Rule 2 of the Mississippi Rules of Appellate Procedure. Belmont appeals,
raising the following three issues:
1. Whether the Circuit Court of Jackson County, Mississippi [hereinafter
“circuit court”] erred in finding that it lacked jurisdiction to hear
Belmont’s appeal under Miss. Code Ann. § 11-51-75 as a result of
Belmont’s failure to pay the [cost] bond within thirty (30) days
following the final judgment of the County Court.
2. Whether the circuit court erred in finding that “the failure to perfect an
appeal by paying a cost bond is not a ‘deficiency’ as contemplated by
[M.R.A.P. 2].”
3. Whether the circuit court deprived Plaintiff of due process by
dismissing its appeal for failure to timely pay the [cost] bond without
prior formal notice of the deficiencies in its appeal from the clerk of the
circuit court.
¶11. The overarching issue before the Court is whether the circuit court erred by
determining that it lacked jurisdiction to hear Belmont’s appeal because Belmont had failed
to pay the cost bond within thirty days of the final judgment entered by the county court. The
second and third issues are intertwined and related to the first. As such, the issues will be
addressed together.3
3
Because Belmont challenges the validity of Section 11-51-79, it necessarily
challenges constitutionality of the statute. However, Belmont did not comply with
Mississippi Rule of Appellate Procedure 44(a) by serving the Attorney General with a copy
5
STANDARD OF REVIEW
¶12. A de novo standard of review is applied to questions of law, legal conclusions, and
jurisdictional questions. Aladdin Constr. Co. v. John Hancock Life Ins. Co., 914 So. 2d
169, 174 (¶ 8) (Miss. 2005).
DISCUSSION
Whether the circuit court had appellate jurisdiction.
¶13. Belmont argues that the circuit court erred by finding that it was deprived of
jurisdiction by Belmont’s failure to pay the cost bond within the statutorily mandated thirty
days because the cost bond prepayment requirement of Section 11-51-79 is superseded by
Mississippi Rules of Appellate Procedure 3(a) and 11(b)(1). We disagree for reasons further
explained below. In short, the Mississippi Rules of Appellate Procedure do not supersede
the jurisdictional requirements of Section 11-51-79. Even if they did, the Section 11-51-79
requirement comports with the applicable procedural rule, Uniform Rule of Circuit and
County Court Practice 5.04, which requires that, in order to perfect an appeal from county
to circuit court, the costs of the appeal be paid within thirty days of the entry of the judgment
being appealed.
¶14. Belmont also argues that the circuit court erred by finding that the failure to perfect
an appeal by paying a cost bond is not a “deficiency” as contemplated by Rule 2 of the
Mississippi Rules of Appellate Procedure, because a “deficiency” under Rule 2 specifically
refers to the failure to comply with the Mississippi Rules of Appellate Procedure; and
of its brief challenging the validity of Section 11-51-79.
6
Belmont argues that the payment of a cost bond is governed by Rule 11(b)(1) of the
Mississippi Rules of Appellate Procedure. Thus, Belmont argues that the circuit court
deprived it of due process by dismissing its appeal for failure timely to pay the cost bond
without prior formal notice of the deficiencies in its appeal from the circuit court clerk.
¶15. Belmont relies on Van Meter v. Alford, 774 So. 2d 430, 432 (¶¶ 1, 3) (Miss. 2000),
in support of its argument that appeals from county courts to circuit courts are controlled by
the Mississippi Rules of Appellate Procedure. In Van Meter, the case originated in county
court, where the jury returned a verdict against Wallace Van Meter and in favor of Bobby
Alford. Id. at 431 (¶ 1). A final judgment was entered on June 23, 1998, and, on July 23,
1998, Van Meter filed a notice of appeal and paid the clerk’s filing fee. Id. at 431 (¶ 2). On
September 2, 1998, Alford filed a motion to dismiss the appeal because Van Meter “had
failed to comply with appellate procedure in several ways.” Id. Specifically, Van Meter had
been delinquent in filing a designation of record, an estimation of costs, and a Rule 11(b)(1)
certificate of compliance. Id. at 432 (¶ 6). On September 4, 1998, Van Meter filed a
designation of the record, a request for an estimate of costs, and a response to the motion to
dismiss. Id. at 432 (¶ 2). The circuit court granted Alford’s motion to dismiss Van Meter’s
appeal. Id.
¶16. On appeal, Van Meter argued that, after Alford had filed his motion to dismiss for
failure to comply with the rules, he was not given fourteen days to correct the appeal’s
deficiencies, as required by Rule 2(a)(2) of the Mississippi Rules of Appellate Procedure.
Id. at 432 (¶ 3). In response, Alford argued that Rule 2 did not apply to appeals from county
7
court to circuit court. Id. We wrote that Rule 2(a)(2) applies to appeals from county court
to circuit court. We also wrote that Rule 2(a)(2) “mandates that, after a motion to dismiss
has been filed, the court clerk (the circuit clerk in this instance) officially notify an appellant
of deficiencies in his appeal and that the appellant be given fourteen (14) days therefrom to
correct any deficiencies.” Id. We held that Van Meter therefore was deprived of due process
when his appeal was dismissed because he was not given an official notice of deficiencies
in his appeal by the circuit clerk. Id. at 432 (¶ 4). We remanded the case to the circuit court
with instructions that the appropriate notice be issued to Van Meter informing him of the
specific deficiencies in the appeal and giving him fourteen days to cure the deficiencies. Id.
at 432 (¶ 5).
¶17. In Van Meter, we also addressed whether the dismissal was “an appropriate sanction.”
Id. at 432-33 (¶¶ 6-10). We recognized that appellants are instructed to file a designation of
record and an estimate of costs within seven days after the notice of appeal is filed. Id. at
432 (¶ 6) (citing M.R.A.P. 10(b)(1); M.R.A.P. 11(b)(1)). We also recognized that appellants
are instructed to file simultaneously a Rule 11(b)(1) certificate when the estimate of costs is
filed. Id. We determined that Van Meter’s “deficiencies do not necessarily mandate a
dismissal” because Rule 3(a) of the Mississippi Rules of Civil Procedure states that the
“[f]ailure of an appellant to take any step other than the timely filing of a notice of appeal
does not affect the perfection of the appeal, but is ground only for such action as the
[appellate court] deems appropriate, which may include dismissal of the appeal.” Id. at 432
(¶ 7). Based on the evidence in the record, we determined that lesser sanctions may have
8
been more appropriate and instructed the circuit court to consider lesser sanctions on remand.
Id. at 433 (¶¶ 11-12).
¶18. As noted by Davis, the Van Meter Court did not specifically address the failure to post
a cost bond within thirty days as required by Section 11-51-79. In fact, the Van Meter Court
did not mention Section 11-51-79 at all in its opinion. As such, jurisdiction was not in
question. Indeed, Alford’s motion to dismiss Van Meter’s appeal was based on his failure
to “comply with appellate procedure in several ways.” Id. at 431 (¶ 2) (emphasis added).
However, to the extent that Van Meter may be interpreted as holding that the bond
requirement under Section 11-51-79 is not jurisdictional, but rather a deficiency under Rule
2(a)(2), such an interpretation is incorrect.
¶19. Belmont argues that the payment of the cost bond required by Section 11-51-79 is in
direct conflict with Mississippi Rule of Appellate Procedure 3(a), which provides that the
“[f]ailure of an appellant to take any step other than the timely filing of a notice of appeal
does not affect the perfection of the appeal[.]” M.R.A.P. 3(a). Belmont also argues that the
payment of the cost bond required by Section 11-51-79 is in direct conflict with Mississippi
Rule of Appellate Procedure 11(b)(1), which provides that, “[w]ithin seven (7) days after
filing the notice of appeal, the appellant shall estimate the cost of preparation of the record
on appeal, including, but not limited to, the cost of the preparation of the transcript, and shall
deposit that sum with the clerk of the court whose judgment or order has been appealed.”
M.R.A.P. 11(b)(1). Belmont argues that Section 11-51-79’s cost bond requirement has no
force or effect because, under Rule 3 of the Mississippi Rules of Appellate Procedure, “[a]ll
9
statutes, other sets of rules, decisions or orders in conflict with these rules shall be of no
further force or effect.” M.R.A.P. 3(a).
¶20. Belmont’s arguments are without merit. “Th[e] Court repeatedly has held that
statutory [cost] bonds are jurisdictional – that is, they relate to a court’s appellate
jurisdiction.” 5K Farms, Inc. v. Miss. Dep’t of Revenue, 94 So. 3d 221, 227 (¶ 22) (Miss.
2012).4
¶21. “The Mississippi Constitution of 1890 vests in this Court the ‘inherent power . . . to
promulgate procedural rules. . . .’” 5K Farms, Inc., 94 So. 3d at 227 (¶ 22) (quoting Newell
v. State, 308 So. 2d 71, 76 (Miss. 1975)). “Th[e] holding rests on the ‘fundamental
constitutional concept of the separation of powers’ defined in Article 1, Sections 1 and 2, and
Article 6, Section 144.” Id. (quoting Newell, 308 So. 2d at 76).
¶22. In contrast, the Mississippi Constitution of 1890 explicitly empowers the Legislature
to set the appellate jurisdiction of circuit courts. Article 6, Section 156, provides: “The
circuit court shall have original jurisdiction in all matters civil and criminal in this state not
vested by this Constitution in some other court, and such appellate jurisdiction as shall be
4
See, e.g., Jackson State Univ. v. Upsilon Epsilon Chapter of Omega Psi Phi
Fraternity, Inc., 952 So. 2d 184, 186 (Miss. 2007) (holding that, because plaintiff “fail[ed]
to file a petition for writ of certiorari and to post a bond with security [in accordance with
statute], the circuit court did not have jurisdiction . . . .”); Miss. State Personnel Bd. v.
Armstrong, 454 So. 2d 912, 915 (Miss. 1984) (“Th[e] Court has repeatedly held that
statutory bond requirements are jurisdictional.”); Wimley v. Reid, 991 So. 2d 135, 139
(Miss. 2008) (holding that “pre-suit requirements are clearly within the purview of the
Legislature, and do not encroach upon this Court’s rule-making responsibility. Indeed, we
consistently have held that the Legislature has authority to establish presuit requirements as
a condition precedent to filing particular kinds of lawsuits.”).
10
prescribed by law.” Thus, the Legislature establishes appellate jurisdiction, including circuit
court appellate jurisdiction. City of Jackson v. Allen, 242 So. 3d 8, 15 (¶¶ 26-28) (Miss.
2018). The Mississippi Legislature has prescribed appellate jurisdiction in Mississippi’s
circuit courts over appeals from county courts in Section 11-51-79.
¶23. Section 11-51-79 provides, in pertinent part:
Appeals from the law side of the county court shall be made to the circuit
court, and those from the equity side to the chancery court on application made
therefor and bond given according to law, except as hereinafter provided. Such
appeal shall operate as a supersedeas only when such would be applicable in
the case of appeals to the Supreme Court. . . . Appeals from the county court
shall be taken and bond given within thirty (30) days from the date of the entry
of the final judgment or decree on the minutes of the court; provided, however,
that the county judge may within said thirty (30) days, for good cause shown
by affidavit, extend the time, but in no case exceeding sixty (60) days from the
date of the said final judgment or decree.
Miss. Code Ann. § 11-51-79. Therefore, under Section 11-51-79, for appeals from county
court to circuit court, “the appellant is required to file notice of the appeal and post a bond
within thirty days of the entry of the judgment.” T. Jackson Lyons & Assocs., P.A., 87 So.
3d at 449 (¶ 15). The bond required for appeals from county court is a cost bond, not a
supersedeas bond because the statute specifically states that the appeal does not operate as
a supersedeas unless it would be before the Supreme Court. Id. A cost bond commonly is
referred to as an appeal bond. Id.
¶24. “Rule 11 is the ‘cost bond’ rule, and it provides that the ‘appellant shall estimate the
cost of preparation of the record on appeal’ and pay that cost to the court clerk.” Id. at 450
(¶ 20) (citing M.R.A.P. 11(b)). “The appellant must also file a Rule 11 certificate of
compliance showing that the cost has been paid.” Id.
11
¶25. While the Court has identified Rule 11 as the cost bond rule, we have unequivocally
stated that “the cost bond, or payment of the cost of preparing the record, is a statutory
requirement of appeal” under Section 11-51-79. Id. at 450 (¶ 21). “Statutory bond
requirements are jurisdictional issues.” Id. at 451 (¶ 22). Indeed, the “Court repeatedly has
held that failure to post an appeal bond (being the cost bond required by Mississippi Code
Section 11-51-79) within the time permitted by statute results in the circuit court’s lack of
jurisdiction.” Id. The Court has explained the distinction between cost bonds and
supersedeas bonds, which both commonly have been called appeal bonds:
A cost bond is jurisdictional because it is a statutory requirement for an appeal.
A supersedeas bond is not jurisdictional, unless a statute governing a certain
type of appeal specifically requires a supersedeas bond. See Phillips
Constr.[v. Miss. State Highway Comm’n], 420 So. 2d [1374,] 1375–76
[(Miss. 1982)]. Thus, a cost bond (or evidence of payment of the cost of
preparing the record) must always be filed to perfect an appeal properly, but
where the statute does not require a supersedeas bond, it is not a prerequisite
for acquiring appellate jurisdiction.
T. Jackson Lyons & Assocs., P.A., 87 So. 3d at 451 (¶ 23).
¶26. In Johnson v. Evans, 517 So. 2d 570 (Miss. 1987), the appellant failed to file a notice
of appeal and pay a cost bond within the statutory period. We wrote that appeals from county
courts to circuit courts are governed by Section 11-51-79. Id. At the time, Section 11-51-79
provided in part: “Appeals from the county court shall be taken and bond given within ten
days of the entry of the final judgment or decree on the minutes of the court[.]” Id. at 570.
The Court held that the appellant’s failure to “post the bond” was jurisdictional, and, as a
result, the circuit court had no power to hear the appeal. Id. at 571.
12
¶27. In T. Jackson Lyons & Associates, P.A., the county court entered a final judgment
on February 4, 2010, and the appellant filed a notice of appeal the same day. T. Jackson
Lyons & Assocs., P.A., 87 So. 3d at 452 (¶ 26). On February 22, 2010, the appellant gave
$450 in cash to the court clerk to pay the estimated cost of preparing the record, and he filed
a Rule 11 certificate of compliance, evidencing the satisfaction of the statutory bond
requirement. Id. We wrote that a literal bond was not needed because the cost bond was
satisfied in its entirety by the cash payment. Id. Thus, the appellant’s notice of appeal and
evidence of satisfaction of the cost bond were filed within thirty days as required by Section
11-51-79. Id. Because the appeal was perfected properly, the Court held that the circuit
court had appellate jurisdiction over the matter. Id.
¶28. In the case sub judice, however, it is undisputed that, while Belmont timely filed its
notice of appeal, it did not pay the cost bond within thirty days of the county court’s final
judgment as required by Section 11-51-79. Because Belmont failed timely to pay the cost
bond, the circuit court did not have appellate jurisdiction.
¶29. The Court routinely has acknowledged the existence of statutes requiring parties to
post a bond as a condition precedent to perfecting their appeals from administrative agency
decisions. See 5K Farms, Inc., 94 So. 3d at 228-29 (¶¶ 27, 30) (holding that a statutory
pretrial bond requirement is a requirement governing appellate jurisdiction rather than a
procedural requirement). We wrote that “[t]he existence of [such] statutes indicates that the
principle that bonds relate to appellate jurisdiction and hence are within the purview of the
Legislature is well grounded in Mississippi law.” Id. at 228-29 (¶ 27); see also Robinson
13
v. Morgan, 214 So. 3d 188, 191 (¶ 14) (Miss. 2017); Miss. Dep’t of Revenue v. AT & T
Corp., 101 So. 3d 1139, 1148-49 (¶¶ 24-25) (Miss. 2012); Khurana v. Miss. Dep’t of
Revenue, 85 So. 3d 851, 855 (¶¶ 11-13) (Miss. 2012).
¶30. While the cases mentioned involved appeals to trial courts from administrative agency
decisions, the principle remains the same. It is the prerogative of the Legislature to set the
appellate jurisdiction of circuit courts; it is not the Court’s prerogative to establish
jurisdiction through rules of procedure.
¶31. Furthermore, the circuit court did not err by finding that the jurisdictional requirement
to pay a cost bond is not a deficiency as contemplated by Mississippi Rule of Appellate
Procedure 2. Rule 2(a) is inapplicable to the case sub judice. Rule 2(a) provides:
(a) Dismissal of Appeal.
(1) Mandatory Dismissal. An appeal shall be dismissed if the notice of appeal
was not timely filed pursuant to Rules 4 or 5.
(2) Discretionary Dismissal. An appeal may be dismissed upon motion of a
party or on motion of the appropriate appellate court (i) when the court
determines that there is an obvious failure to prosecute an appeal; or (ii) when
a party fails to comply substantially with these rules. When either court, on its
own motion or on motion of a party, determines that dismissal may be
warranted under this Rule 2(a)(2), the clerk of the Supreme Court shall give
written notice to the party in default, apprising the party of the nature of the
deficiency. If the party in default fails to correct the deficiency within fourteen
(14) days after notification, the appeal shall be dismissed by the clerk of the
Supreme Court. The attorney for the party in default has the burden to correct
promptly any deficiency or to see that the default is corrected by the
appropriate official. Motions for additional time in which to file briefs will not
be entertained after the notice of the deficiency has issued.
M.R.A.P. 2.
14
¶32. At the hearing on the motion to dismiss the appeal, Davis argued that Section 11-51-
79 requires the appellant to pay the cost bond regardless of what the clerks have done. We
agree. Here, the circuit clerk was under no obligation to notify Belmont of its failure to
comply with the statutory jurisdictional requirement of paying the cost bond. Rule 2 simply
does not apply to the deficiency at issue here, i.e., lack of jurisdiction. The deficiencies as
described in Rule 2(a)(2) occur only “(i) when the court determines that there is an obvious
failure to prosecute an appeal” or “(ii) when a party fails to comply substantially with these
rules.” The circuit court, sitting as an appellate court, did not enter a discretionary dismissal
under Rule 2(a)(2) for the failure to comply with “these rules,” i.e., the Mississippi Rules of
Appellate Procedure; rather, the circuit court dismissed the appeal for lack of appellate
jurisdiction. As explained above, it is the Legislature’s prerogative to set appellate
jurisdiction of circuit courts. It did so in Section 11-51-79.
¶33. For the same reasons, Rule 2(a)(2)’s instruction to provide a defaulting appellant
fourteen days to correct the appeal’s deficiencies is not applicable. Belmont was not
deprived of due process when its appeal was dismissed without notice under Rule (2)(a)(2)
because its failure was not a procedural deficiency; rather, its appeal was dismissed for its
failure to comply with the statutory jurisdictional requirement of timely paying the cost bond.
Belmont’s deficiency and due process arguments are without merit. The circuit court’s
judgment and our holding further comport with Uniform Rule of Circuit and County Court
Practice 5.04, which governs the procedures for appealing matters from county courts to
circuit courts. Consistent with Section 11-51-71, Rule 5.04 requires that the costs of the
15
appeal be paid within thirty days of the judgment or order being appealed in order for the
appealing party to perfect the appeal.
CONCLUSION
¶34. For the foregoing reasons, we affirm the circuit court’s judgment.
¶35. AFFIRMED.
RANDOLPH, P.J., BEAM, CHAMBERLAIN AND ISHEE, JJ., CONCUR.
MAXWELL, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE
WRITTEN OPINION. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY KITCHENS, P.J., AND KING, J.
WALLER, CHIEF JUSTICE, DISSENTING:
¶36. Because I believe the statutory time limitation to pay a cost bond cannot supersede or
impede the Court’s constitutional authority to govern rules of practice and procedure, I
respectfully dissent.
¶37. Davis contends that this Court already has held that a cost bond is jurisdictional
because it is a statutory requirement for appeal. See T. Jackson Lyons & Assocs., P.A. v.
Precious T. Martin, Sr. & Assocs., PLLC, 87 So. 3d 444, 451 (Miss. 2012). I agree that the
payment of the cost bond is jurisdictional. But I believe any deficiencies in the payment of
the bond are addressed under the Mississippi Rules of Appellate Procedure. Davis paid the
proper cost bond but failed to do so within thirty days because of his inability to find out how
much to pay. This is a deficiency, not a failure. Under the rules of this Court, mandatory
dismissal occurs only when the notice of appeal is not timely, which is not at issue here.
M.R.A.P. 2(a)(1).
16
¶38. The Lyons case mixed statutes and court rules in its analysis but did not consider how
deficiencies are addressed under Mississippi Rule of Appellate Procedure 2(a)(2). In fact,
this Court found that the cost bond paid by Martin was sufficient. The issue on appeal was
whether Martin properly filed a supersedeas bond:
Lyons uses the term “appeal bond” but refers to Martin’s motion to waive
supersedeas bond and the $1,000 paid by Martin. In his motion to dismiss
filed in circuit court, Lyons noted that the order allowing Martin to post bond
in the amount of $1,000 did not state that the bond would supersede the
judgment. While Lyons uses the term “appeal bond” for the bond requirement
of Mississippi Code Section 11–51–79, he appears to be referring to a
supersedeas bond.
Lyons, 87 So. 3d at 451.
¶39. So, Lyons does not support Davis’s argument. The opinion discussed only the
differences in “appeal bonds, cost bonds, and supersedeas bonds . . . to provide clarity.” Id.
at 448. More importantly, the authorities cited in Lyons regarding the statutory cost bond
requirement predate the adoption of the Mississippi Rules of Appellate Procedure.5 The
other cases cited by Davis involved appeals to trial courts from administrative-agency
decisions, not actions that originated in a trial court. See 5K Farms, Inc. v. Miss. Dep’t of
Revenue, 94 So. 3d 221, 227 (¶ 22) (Miss. 2012) (appeal stemmed from a determination
made by the Mississippi Tax Commission); see also Jackson State Univ. v. Upsilon Epsilon
Chapter of Omega Psi Phi Fraternity, Inc., 952 So. 2d 184, 186 (Miss. 2007) (appeal
5
The Mississippi Rules of Appellate Procedure were adopted effective January 1,
1995. See also Supreme Court Rules (adopted January 1, 1988). Cases cited not involving
administrative decisions include Johnson v. Evans, 517 So. 2d 571 (Miss. 1987); Williams
v. Michael, 319 So. 2d 226 (Miss. 1975); Parkman v. Miss. State Highway Comm’n, 250
So. 2d 637 (Miss. 1971); Carney v. Moore, 130 Miss. 658, 94 So. 890 (1923); Humphreys
v. McFarland, 48 So. 182 (Miss. 1909).
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stemmed from the ruling of the JSU Student Life Disciplinary Committee); Miss. State
Personnel Bd. v. Armstrong, 454 So. 2d 912, 915 (Miss. 1984) (appeal stemmed from the
petitioner’s failure to file a bond after a judgment from a hearing officer employed by the
Mississippi Employee Appeals Board).
¶40. The ultimate effect of Mississippi Code Section 11-51-79 respecting conflicts with
the rules of procedure adopted by this Court was addressed in Davis v. Nationwide Recovery
Ser., Inc., 797 So. 2d 929, 930 (Miss. 2001). At that time, Section 11-51-79 required that:
“Appeals from the county court shall be taken . . . within ten (10) days from the date of entry
of the final judgment[.]” Miss Code Ann. § 11-51-79 (1972), amended by Miss. Code Ann.
§ 11-51-79 (2001). This time limitation arguably is just as applicable to subject-matter
jurisdiction as is the requirement to post a cost bond within thirty days. In Davis, the circuit
court had dismissed Davis’s appeal as untimely because of the ten-day limit set out in the
statute. In reversing, this Court held unanimously that Uniform Rules of Circuit and County
Court Practice 5.04 and 12.03 provided that appeals were to be made within thirty days:
With the adoption of the Rules of Civil Procedure and the Court’s
pronouncements in Hall v. State, 539 So. 2d 1338, 1345 (Miss. 1989), and
Newell v. State, 308 So. 2d 71, 76 (Miss. 1975), we articulated its power to
establish rules regarding appeals from court to court, and its mandate that such
rules supercede statutes which are in conflict with the rules. Accord, Van
Meter v. Alford, 774 So. 2d 430, 432 (Miss. 2000); American Investors, Inc.,
v. King, 733 So. 2d 830, 832 (Miss. 1999).
Davis, 797 So. 2d at 930.
¶41. While the cost bond is jurisdictional, deficiencies are addressed by court rules. This
Court, in Brown v. Collections, Inc., addressed the same statute at issue here, Section 11-51-
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79. Brown v. Collections, Inc., 188 So. 3d 1171 (Miss. 2016). The statute at issue in Brown
provided that no interlocutory appeals could be taken from county court. To take the
argument of the majority and apply it here, the Legislature said there was no jurisdiction for
an appeal from county court to circuit court. This Court unanimously held in Brown that
there was a conflict between Section 11-51-79 and Mississippi Rule of Appellate Procedure
5, and that the rule controlled:
So there is obviously a conflict between the statute and the rule-based
interlocutory appeal procedure. When such a conflict exists, our court’s rules
trump statutory law. Stevens v. Lake, 6115 So. 2d 1177, 1183 (Miss. 1993)
(“statutes that conflict with rules adopted by the Court are void”).
Brown, 188 So. 3d at 1177.
¶42. In Van Meter v. Alford, 774 So. 2d 430 (Miss. 2000), Van Meter filed his appeal from
county court to circuit court on the thirtieth day after judgment and paid the clerk’s filing fee
of $100. Van Meter’s appeal contained a number of deficiencies, resulting in a motion and
subsequent order of dismissal. On appeal, this Court held, among other things, that an appeal
from county court to circuit court is governed by the Mississippi Rules of Appellate
Procedure:
The Court has previously addressed this issue in American Investors, Inc. v.
King, 733 So. 2d 830, 832 (Miss. 1999) (“An appeal from county court to
circuit court is controlled by the Mississippi Rules of Civil Procedure . . . , the
URCCC, and the M.R.A.P.”). We specifically held that M.R.A.P. 2(a)(2)
applies to appeals from county court to circuit court. Id. Rule 2(a)(2)
mandates that, after a motion to dismiss has been filed, the court clerk (the
circuit clerk in this instance) officially notify an appellant of deficiencies in his
appeal and that the appellant be given fourteen (14) days therefrom to correct
any deficiencies.
Van Meter, 774 So. 2d at 432.
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¶43. The majority relies on Uniform Rule of Circuit and County Court Practice 5.04 to
support its conclusion that the failure to pay the cost bond within thirty days of the judgment
deprives the circuit court of appellate jurisdiction. Such summary treatment is contrary to
the Mississippi Rules of Appellate Procedure. Rule 2 mandates dismissal only when the
notice of appeal is not filed timely.
(1) Mandatory Dismissal. An appeal shall be dismissed if the notice of appeal
was not timely filed pursuant to Rules 4 or 5.
M.R.A.P. 2(a)(1). The majority has, in effect, amended the Mississippi Rules of Appellate
Procedure.
¶44. In my view, the late filing of an otherwise lawful appeal bond is a deficiency
controlled by our rules. Mississippi Rule of Appellate Procedure 2(a)(2) requires that the
court clerk officially notify Belmont Holdings of the deficiency. As stated in Van Meter, the
lack of notice is a deprivation of due process:
Van Meter was therefore deprived of due process when his appeal was
dismissed because he was not given an official notice of deficiencies in his
appeal by the circuit clerk. Alford’s motion to dismiss cannot be substituted
for an official notice of deficiencies from the court clerk. Even where a party
has moved to dismiss, the plain language of the rule requires a notice from the
clerk of the deficiency and a fourteen day opportunity to cure the deficiency.
Van Meter, 774 So. 2d at 432
¶45. In conclusion, the automatic dismissal required by the majority for the failure to pay
or post a cost bond within thirty days under Section 11-51-79 and Uniform Rule of Circuit
and County Court Practice 5.04 conflicts with the Mississippi Rules of Appellate Procedure.
I would reverse the circuit court’s judgment of dismissal and remand for further proceedings.
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KITCHENS, P.J., AND KING, J., JOIN THIS OPINION.
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