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Belmont Holding, LLC v. Davis Monuments, LLC

Supreme Court of Mississippi, En Banc

September 13, 2018

BELMONT HOLDING, LLC
v.
DAVIS MONUMENTS, LLC AND JASON DAVIS, INDIVIDUALLY

          DATE OF JUDGMENT: 06/26/2017

          JACKSON COUNTY CIRCUIT COURT HON. DALE HARKEY TRIAL JUDGE.

          TRIAL COURT ATTORNEYS: RUSSELL S. GILL JOSEPH R. TRAMUTA W. HARVEY BARTON

          ATTORNEYS FOR APPELLANT: JOSEPH R. TRAMUTA RUSSELL S. GILL

          ATTORNEY FOR APPELLEES: W. HARVEY BARTON

          COLEMAN, JUSTICE.

         ¶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 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 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 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]

         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 ...


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