OF JUDGMENT: 06/26/2017
JACKSON COUNTY CIRCUIT COURT HON. DALE HARKEY TRIAL JUDGE.
COURT ATTORNEYS: RUSSELL S. GILL JOSEPH R. TRAMUTA W. HARVEY
ATTORNEYS FOR APPELLANT: JOSEPH R. TRAMUTA RUSSELL S. GILL
ATTORNEY FOR APPELLEES: W. HARVEY BARTON
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.
OF THE CASE
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).
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.
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.
AND PROCEDURAL BACKGROUND
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 and conclusions of law. Again, the county court denied
the replevin and ordered Belmont to restore certain property
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. 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.
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,
within thirty days was a 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.
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.
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 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.
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
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
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.
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).
the circuit court had ...