IN THE SUPREME COURT OF MISSISSIPPI
NO. 2017-CA-01249-SCT BELMONT HOLDING, LLC

v. DAV IS MONUMENTS, LLC AND JASON DAV IS, INDIV IDUALLY

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 W HICH 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 stem s f rom a circuit court’s j udgm ent dism issing an appeal f rom county court f

or lack of appellate jurisdiction. Discerning no error, we af f irm

. STATEMENT OF THE CASE ¶2. Belm ont Holding, LLC, f iled a com

plaint in replevin in the County Court of Jackson County against D avis Monum e nts, LLC, a nd J ason Davis, i ndividually

. T he case p roceeded

to trial. The c ounty c ourt denied the replevin and entered a f inal judgm ent. Aggrieved bythe county court’s f inal judgm ent, Belm ont f

iled a notice of appeal within t hirty day s of the
f inal judgm ent. However, Belm ont did not p ay t he cost bond within thirty day s o f the f inal judgm ent as required by

Mississippi Code Section 11-51-79 (Rev. 2012). ¶3. T h e C i r c u i t C o u r t o f Jackson County , sitting as a n appellate court, d i s mi s s e d
Belm ont’s appeal f

o r l ack of appellate jurisdiction because Belm o nt had f ailed t o pay the cost bond within thirty day s of the county court’s f inal judgm ent as required by Section 11-51-79.
Belm ont appeals, arguing that the circuit court had appellate jurisdiction. ¶4. The overarching issue bef ore the Court is whether the circuit court lacked appellate jurisdiction because Belm ont ha d f a i l e d to pay the cost bond within the tim e period prescribed in Section 11-51-79. Because the circuit c o urt lacked appellate jurisdiction due
to Belm ont’s f

ailure, we af

f irm the circuit court’s judgm e nt.
FACTUAL AND PROCEDURAL BACKGROUND ¶5. The pertinent procedural his t o r y a n d f a c t s a r e not disputed. On M arch 8, 2016,
Belm ont f

iled a com

p laint i n replevin against Davis in county co u r t

. Davis f iled a counterclaim , and t he case proceeded to a bench trial on M arch 2 8, 2016. On April 5, 2016,
the county court entered an o rder deny ing the replevin, directing that Belm ont im m ediately

return certain property , and d ism issing the case with prejudice. On April 12, 2016, Belm ont
f iled a m otion to a lter or am end t he judgm ent under Rule 59 of the Mississippi Rules of Civil
Procedure. Belm ont requested that the county court issue f indings of

f act and conclusions
of law. On April 28, 2016, the county court entered a f inal j udgm e n t with f

indings of f

act

2and conclusions of law. Again, the county court denied the replevin an d ordered Belm ont

to restore certain property to Davis. ¶6. On May 24, 2016, Belm ont f i led a notice of appeal. On M a y 2 6 , 2016, the circuit
clerk issued its estim ated costs f or appeal, which was $374. On the s a me d a y , t h e of f icial

court reporter issued its estim ated cost f or prepari n g t h e trial transcript, which was $38. According to Belm o nt, it paid the cost bond between June 8, 2016, a nd June 16, 2016. 1 On
June 21, 2016, Belm ont f

iled a certif

icate of com

pliance. On June 2 4, 2016, the circuit clerk
entered a notation o n the docket that $374 had been paid b y ref erence to Belm ont’s check
#1058. ¶7. On March 8, 2017, Belm ont f iled its brief in support of i ts appeal. On May 1, 2017,
Davis f iled a m otion to d i sm iss the appeal f o r lack of jurisdiction b ecause Belm ont h ad f ailed

to pay the cost bond within thirty day s of t he county court’s f inal judgm ent. Davis argued
that Belm ont’s f

ailure to pay the appeal bond, i.e

. , cost bond, 2 within thirty day s was a

1 In support, B elm ont ref

erences a check in the am ount of $412.40 dated June 8, 2016, which cleared o n June 16. The actual am ount of the cost b ond is n ot at issue and not relevant f or purposes o f the issu e s o n a ppeal. A cco rd in g to D av is a n d B elm o n t at th e t rial lev el, Belm ont paid the cost of appeal in the am ount of $374 on June 14, 2016. T h e circu it co u rt later f o u n d th at th e ap p eal b o n d (o r co st b o n d ) h ad b een p aid o n Ju n e 2 6 , 2 0 1 6 , w h i c h is co n sisten t w ith th e trial co u rt d o c k et. W hether the cost bond was paid on June 8, June 14, June 16, or June 26, o ur analy sis is not af f e c ted, because it is undisputed that Belm ont d id not tim ely

pay its cost bond.

2 T h e C o u rt h a s ex p lain e d : “T h e b o n d req u ired to p erf ect an ap p eal is a co st b o n d , w h ich i s so m etim es r e f

e r r e d t o a s an ap p e a l b o n d

. T h e b o n d req u ired to o b tain a stay o f ex ecu tio n o f a j u d g m en t w h i le th e j u d g m en t is b ein g ap p ealed is a su p ersed eas b o n d , also ref erred to as an ap p eal b o n d .” T . J a ck so n L yo n s & A sso cs., P

. A
. v. P recio u s T . M a rtin , S r. & A sso cs., P

L L C , 8 7 S o
. 3 d 4 4 4 , 4 4 8 (¶ 1 3 ) ( M i ss. 2 0 1 2 ). T h e C o u r t also cau tio n ed t h at litig an ts “w o u ld b e w ell serv ed to u se th e t erm s ‘ co st b o n d ’ an d ‘ su p e r s e d e as b o n d ’ as ap p ro p r iate an d av o id u sin g th e term ‘ap p eal b o n d ’ to p rev en t co n f u sio n
. Id . at 4 4 9 n .6

. 3jurisdictional requirem ent. A hearing was held on June 13, 2017. At the hearing, Belm ont

argued that it was u n able to pay the cost b ond on tim e because t h e c i r c u it c ourt did not provide its estim ate of cost until May 26, 2016. Davis argued that Belm ont had a duty under
Section 11-51-79 tim ely to pay the cost bond, regardless of what the clerk had done. ¶8. On June 26, 2017, the circuit court entered an order granti n g B elm ont’s m otion to
dism iss. The circuit court f ound that Davis’s f

ailure to po s t the cost bond within the statutorily m andat e d t h i r t y day s deprived i t of j urisdiction. The circuit c ourt f ound that
Belm ont had paid t he appeal cost (cost bond), to the circuit clerk on J u n e 24, 2016. The
circuit court f

ound in pertinent part that Belm ont: did not f i le their notice of a

ppeal until May 24, 2016, giving them selves only f our day s to p erf

ect their appeal by po s t i n g a cost bond. By t he tim e the Circuit Clerk provided their estim ate, [ Belm ont] still had two (2) d ay s to pay bef ore tim e e xpired. [ Belm o nt] did not pay the Clerk’s estim ated cost of appeal until alm ost a m onth a f

ter it was provided, well outside of the statutory period f or f iling a c ost bon d

. F u r t h erm ore, Rule 11 of the Mississippi Rules of Appellate Procedure provide[ s] that w hen an appellant is unable to receive an estim ate of c ost f

r om the clerk then the appellant should calculate the cost of the appeal “ at the statutory rate per page f or the approxim ate num

b er o f pages of clerk’s papers.” As both the f iling of an a

ppeal and the postin g o f a cost bond are what give this C ourt jurisdiction t o hear an a ppeal f rom County Court under M iss. C ode Ann. [ §] 11-51-79, this Court f inds that t he f

a i lure to pay the cost bond within the statutorily m andated t hirty (30) day s deprives this Court of jurisdiction. ¶9. On July 21, 2017, Belm ont f iled a m o tion to reinstate t he a ppeal. Belm ont argued that
it was entitled to a notice of the def iciency of its appeal f

ro m t h e circuit clerk under Mississippi Rule of Appellate Procedure 2(a)(2). Belm ont continued that the f ailure to give
it of f icial notice of t he def

iciency violated i ts due process rights. Belm ont also a r gued that
Section 11-51-79’s requirem ent of the pay m ent of the cost bond conf

licts with Mississippi

4Rule of A ppellate Procedure 3, because Rule 3 provides that tim e ly f iling a notice of appeal
is the only requirem ent to perf ect an appeal. Belm ont argued that, because of the conf lict, Rule 3(a) supersedes Section 11-51-79. ¶10. On August 18, 2017, the c ircuit court denied B e l mo n t ’ s mo t i on. The circuit court
f ound t hat the f

ailure to p erf

ect an ap p e a l b y pay ing a c o st bond is not a def iciency as
contem plated by R

ule 2 of the Mississippi Rules of Appellate Procedure. B e lm ont appeals, raising the f

ollowing three issues:
1. W hether the Circuit Court of Jackson County , M ississippi [ hereinaf ter “circuit court”] erred in f i n d i n g that it lacked jurisdiction to h ear Belm o nt’s appeal u nder Miss. C ode Ann. § 11-51- 7 5 a s a r esult of Belm o nt’s f

ailure to pay the [ c ost] bond within t h i rty (30) d ay s f ollowing the f

inal judgm ent of

the County

Court.
2. W hether the circuit court erred in f inding that “the f

ailure to perf

ect an appeal by pay i ng a cost bond is not a ‘def iciency ’ as contem

p lated by [ M.R.A.P. 2].”
3. W hether the circuit court deprived P l a intif f o f due process by dism i ssing its appeal f

or f ailure to tim ely pay the [ cost] bon d without prior f orm a l notice of the def

iciencies i n its appeal f

r om the clerk of the circuit court. ¶11. T h e o v e r a r c h i n g i s s u e b e f o r e t h e C o urt is whether the circuit c o urt erred b y determ ining that it lacked jurisdiction to hear Belm ont’s appeal because Belm ont had f ailed

to pay the cost bond within thirty day s of the f inal j udgm ent e n tered b y the county court. The
second and third i ssues are intertwined and relat e d t o t h e f irst. As s uch, t he i ssues will be addressed together. 3

3 B e cau se B elm o n t c h allen g es th e v alid i ty o f S ectio n 1 1 -5 1 -7 9 , it n ecess a r i l y ch allen g es co n stitu tio n ality o f th e statu te. H o w ev er, B elm o n t d id n o t c o m p ly w ith M ississip p i R u le o f A p p ellate P ro ced u re 4 4 (a) b y serv in g th e A t to rn ey G en eral w ith a co p y 5STANDARD OF REVIEW

¶12. A de novo standard of review is applied t o q uestions o f law, le g a l c o n c lusions, and jurisdictional questions. Aladdin Constr. Co. v . Joh n H a n c o ck Life Ins. Co. , 914 So. 2d 169, 174 (¶ 8) (Miss. 2005).
DISCUSSION Whether the circuit court had appellate jurisdiction. ¶13. Belm ont argues t hat the c i r c u i t c o u r t e r r e d b y f i n d i n g that it was d eprived of jurisdiction by Belm ont’s f ailure to pay the cost bond within the s tatutorily m andated thirty
d ay s because the cost bond prepay m ent requirem ent of S ection 11-51-79 is s upe r s e d e d b y Mississippi Rules of Appellate Procedure 3(a) and 11(b)(1). W e disagree f or reasons f

urther explained below. In short, t h e Mississippi Rules o f Appellate P rocedure do not supersede
the jurisdictional requirem ents of Section 11-51-79. Even if they did, the S ection 11-51-79 requirem ent com

ports with the a

ppl icable procedural rule, Unif orm Rule of C ircuit and County Court Practice 5.04, which requires t hat, in order to perf e ct a n appeal f

rom county
to circuit court, t he costs of the appeal be paid within t hirty day s of the e ntry of the j udgm ent being appealed. ¶14. Belm ont also argues that the circuit court erred by f inding that the f

ailure to perf

ect

an appeal by pay ing a cost bond is not a “def iciency ” a s c o n t e m

p l a t e d by Rule 2 of the Mississippi Rules of Appellate Procedure, b ecause a “def iciency ” under Rule 2 s pecif ically
ref ers to the f

ailure to com

ply w ith the Mississippi Ru l e s o f Appellate Procedure; and

o f its b rief ch a llen g in g th e v alid ity

o f S ectio n 1 1

- 5 1 -7 9

. 6Belm ont argues that the pay m ent of a cost bond is governed by Rule 11(b)(1) of the Mississippi R u l e s o f Appellate P rocedure. T hus, Belm ont argues that the circuit court deprived it of due p rocess by dism issing its appeal f or f ailure tim ely to p ay the cost b o nd without prior f

orm al notice of

the def iciencies in its appeal f

rom the circuit court clerk. ¶15. Belm ont relies on V a n Meter v. Alford , 774 S o. 2d 430, 432 (¶¶ 1, 3) (Miss. 2000),
in s upport of its argum ent that appeals f rom county courts to c i rcuit courts a r e controlled by
the Mississippi Rules of Appellate Procedure. In V an Meter , the case originated in county court, where th e j u r y r e t u r n ed a verdict against W allace Van Meter and in f avor of Bobby
Alf ord. I d

. at 431 ( ¶ 1). A f

inal judgm ent was entered on June 2 3, 1998, a nd, on July 23, 1998, Van Meter f

iled a notice of appeal and paid the clerk’s f iling f ee. Id

. at 4 31 (¶ 2). On Septem ber 2, 1 998, A lf

ord f iled a m oti o n t o dism iss the appeal because Van M eter “had
f ailed to com

ply with appellate procedure in several way s .” Id

. Specif ically , V an Meter had
been delinquent in f

iling a designation of record, an estim ation of costs, and a Rule 11(b)(1)
certif i cate of com

pliance. I

d

. at 432 (¶ 6 ). O n Septem ber 4, 1998, Van M e t e r f iled a designation of the record, a request f or a n estim ate of costs, and a response to the m otion to dism iss. Id

. at 432 ( ¶ 2). T he circuit court granted Alf ord’s m otion to dism iss Van Meter’s appeal. Id

. ¶16. O n a p p e a l , Van Meter argued that, af ter Alf ord had f iled his m otion t o dism iss f o r f ailure to com

p l y with the r

ules, he w as not given f

ourteen day s to correct the appeal’s
def iciencies, as required by Rule 2(a)(2) of t he Mississippi Rules of Appellate Procedure.
Id

. at 432 (¶ 3). In response, Alf ord argued that Rule 2 did not apply to appeals f r om county

7court to circuit court. Id

. W e wrote that Rule 2(a)(2) applies to appeals f rom county court
to circuit court. W e also wrote that Rule 2(a)(2) “m a n dates that, af ter a m otion to di s mi s s has been f iled, the c ourt clerk (the circuit c lerk i n this instance) of f i cially notif

y a n appellant
of def iciencies in his appeal and that the a ppellant be g iven f

ourteen (14) day s theref

rom to
correct any def

iciencies.” Id

. W e held that Van Meter theref o re was deprived of due process when his appeal was dism i ssed because he was not given an o f f icial notice o f def

iciencies
in h is appeal by the circuit clerk. Id

. at 432 (¶ 4). W e rem anded t he case to the circuit court with i nstructions t hat the a ppropriate notice be issued to V an M eter i n f orm ing him of the specif ic def iciencies in the appeal and giving him f ourteen day s to cure the d ef iciencies. Id

. at 432 (¶ 5). ¶17. I n V

a n M e t e r , we also addressed w hether the d ism issal was “an appropriate sanction. ”
Id

. at 4 32-33 (¶¶ 6-10). W e recognized that appellants are instructed to f ile a designation of
record a nd an estim ate of costs within seven day s a f t e r t h e n o tice of appeal is f iled. Id

. at
432 (¶ 6) (citing M.R.A.P. 10(b)(1); M.R.A.P. 1 1(b)(1)). W e also recognized that appellants

are i nstructed to f

ile sim ultaneously a Rule 1 1(b)(1) certif icate when the estim ate of costs is
f iled. Id

. W e determ ined that Van Meter’s “ def iciencies do not nece s s a r i l y m andate a dism issal” because R

ule 3(a) of t h e M i s s issippi R ules of Civil Procedure s tates that the “[ f ]ailure of an appellant t o take any step o ther than the t im ely f i ling of a notice of appeal
d o e s n ot af

f ect the perf

ection of the appeal, but is g round only f or such action a s t h e [ appellate court] deem s appropriate, which m ay include d ism issal of the appeal.” I d

. at 432 (¶ 7). B ased o n t h e evidence in the r ecord, we determ i ned that lesser sanctions m ay have

8been m o re appropriate and instructed the circuit court to consider l esser s anctions on rem and.

Id . at 433 (¶¶ 11-12). ¶18. As noted by Davis, the V a n Meter Court did not s pecif ically address the f

ailure to post

a cost bond within thirty day s a s required b y Section 11-51-79. I n f act, the V an Meter Court
did not m enti o n Section 11-51-79 at all in i ts opinion. As such, jurisdiction was not in question. Indeed, Alf

o rd’s m otion to dism iss Van Meter’s appeal was based on his f ailure

to “ com ply with appellate procedure in several way s.” Id

. at 431 (¶ 2) (em phasi s a d d e d). However, to the e x t e nt t hat V a n Meter m ay be i nterpreted as holding that the bond requirem ent under Section 11-51-79 is not jurisdictional, but rather a def iciency under Rule 2(a)(2), such an interpretation is incorrect. ¶19. Belm ont argues that t he pay m ent of the c ost bond required by S ection 1 1-51-79 is in
direct conf

lict with Mississippi Rule of A ppellate Procedure 3(a), wh i c h p r ovides that the “[ f ]ailure of an appellant t o take any step o ther than the t im ely f i ling of a notice of appeal
does not af

f e ct the perf

ection of the appeal[ .]” M.R.A.P. 3(a). Belm ont also argues that the
pay m ent of t he c ost bond required by Section 11-51-79 i s i n direct conf lict w ith Mississippi
Rule of Appellate Procedure 11(b)(1), which provides that, “ [ w]ithin seven (7) day s af ter
f iling the notice of a

ppeal, the appellant shall estim a t e the c ost of preparation of t he record

on appeal, including, but not lim ited to, the cost o f the preparation of t he transcript, and shall deposit that su m w ith t he clerk of the court whose j udgm ent o r order has been appealed.” M.R.A.P. 11(b)(1). Belm ont argues that Section 11-51-79’s cost bond requirem ent has no
f orce or ef f ect because, under Rule 3 of the Mississippi Rules of Appellate Procedure, “[ a]ll

9statutes, other sets of rules, decisions or orders in conf lict with these rules s h a ll be of no f urther f orce or ef f ect.” M.R.A.P. 3(a). ¶20. Belm ont’s argum ents a re without m erit. “Th[ e ] C o u r t r e p e a t e d l y h a s held that statutory [ cost] bonds are jurisdictional – that i s, they relate to a c o u rt’s appellate jurisdiction.” 5K Farm s, I nc. 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
prom ulgate procedural rules.

. . .’” 5K Farm s, Inc. , 9 4 So. 3d at 227 (¶ 22) (quoting Newell

v . State , 308 So. 2d 71, 76 (Miss. 1975)). “Th[ e] holding r ests on the ‘f u n d a me n t a l
constitutional concept of the separation o f powers’ def ined 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 em powers the Legislature

to s et the appellate jurisdiction of circuit courts

. A r t i cle 6, Section 156, provides: “The
circuit court shall have original jurisdiction in a l l m atters civil and crim inal in this state not vested by t h i s C o n s titution i n som e other c ourt, and s uch appellate jurisdiction as shall be

4 S ee, e.g ., J

a ck so n S ta te U n iv. v. U p silo n E p sil o n C h a p t e r o f O m eg a P

si P h i F r a t ern ity, In c ., 9 5 2 S o
. 2 d 1 8 4 , 1 8 6 (M iss. 2 0 0 7 ) (h o ld in g th at, b ecau se p lain tif f “f ail[ e d ] to f ile a p e titio n f

o r w rit o f certio rari an d to p o s t a b o n d w ith secu r ity [ in acco rd a n ce w ith statu te] , th e circu it co u rt d id n o t h av e j u risd ictio n
. . . . ”); M iss. S ta te P e r s o n n el B d

. v. A r m stro n g , 4 5 4 S o
. 2 d 9 1 2 , 9 1 5 (M iss. 1 9 8 4 ) (“T h [ e] C o u r t h a s r e p e a ted ly h eld t h at statu to ry b o n d req u irem en ts are j u risd ictio n al.”); W im l ey v . R eid , 9 9 1 S o
. 2 d 1 3 5 , 1 3 9 (M iss. 2 0 0 8 ) ( h o ld in g th at “p re-su it req u ireme n t s are clearly w i th in t h e p u rv iew o f th e L e g i slatu re, an d d o n o t e n cro a ch u p o n th is C o u r t’s ru le-m ak in g r esp o n sib ility

. In d eed , w e co n sisten tly h av e h e ld th a t th e L eg islatu re h a s au th o rity to e stab lish p resu i t req u irem en ts as a co n d itio n p reced en t

to f i lin g p articu l ar k i n d s o f

law su its.”).

1 0prescribed by law.” Thus, the Legislature establishes a p pellate jurisdiction, including circuit

court appellate jurisdiction. City of Jackson v. Allen , 2 42 So. 3 d 8, 15 (¶¶ 26-28) (Miss. 2018). The Mis s i s s ippi Legislature has prescribed appellate jurisdiction in M ississippi’s circuit courts over appeals f r om county courts in Section 11-51-79. ¶23. Section 11-51-79 provides, in pertinent part: Appeals f r om the law side of the county c ourt shall be m ade to t he circuit court, and those f

rom the equity side to the chancery court o n application m ade theref or and b ond given according to law, e xcept as hereinaf ter provided. Such appeal shall operate a s a supersedeas only when such would be applicable in the case of appeals to the Suprem e Court.

. . . Appeals f rom t he county court shall be taken and bond given within thirty (30) day s f rom the date o f the e ntry of the f inal judgm e nt o r decree on the m inutes of the court; provided, however, that the county

judge m a y within said thirty (30) day s, f

or good cause shown by af f idavit, e xtend the tim e, but in no c ase exceeding sixty (60) day s f rom the date of the said f inal judgm ent or decree.
Miss. C ode Ann. § 11-51-79. Theref ore, under Section 11-51-79, f or appeals f

rom county court to circuit court, “the appellant is required to f ile notice of

the appeal and post a bond
within thirty day s of t he entry of the judgm ent.” T. Jackson Lyons & A ssocs., P.A. , 87 So.
3d a t 4 4 9 ( ¶ 1 5 ). The bond r equired f or appeals f

rom county court is a cost bond, not a supersedeas bond because the statute specif ically states that the appeal does not operate as

a supersedeas unless it would be bef ore the Suprem e Court. Id . A cost bond com m only is
ref erred to as an appeal bond. Id

. ¶24. “Rule 1 1 is t he ‘ cost bond’ rule, and it provides that t he ‘appellant s hall estim ate the

cost of preparation of the record on appeal’ and pay t hat c ost t o the court clerk.” Id

. at 450 (¶ 20) (citing M .R.A.P. 11(b)). “ T h e a ppellant m ust a lso f ile a Rule 11 certif

icate of

com pliance showing that the cost has been paid.” Id

.
1 1¶25. W h ile the Court has identif ied Rule 11 a s the cost bond rule, we have unequivocally
stated that “the cost bond, o r p a y ment of t he cost of preparing the record, is a statutory requirem ent of appeal” under Section 11-51-79. Id

. at 450 (¶ 21). “Sta t u tory bond requirem ents are jurisdictional i ssues.” Id

. at 451 (¶ 22). Indeed, t he “Court repeatedly has
held that f

ailure t o post an a

ppeal bond (being the cost bond required by Mis s issippi Code
Section 11-51-79) within the t im e perm itted by statute results in the ci r c u i t c ourt’s lack of jurisdiction.” I

d

. T h e Court has explained the distinction between cost bonds and supersedeas bonds, which both com m only have been called appeal bonds:
A cost bond is jurisdictional because it i s a statutory requirem ent f o r an appeal. A supersedeas bond is not jurisdictional, unless a statute governing a c ertain ty pe of appeal specif

ically r equires a supersedeas bond. See Phillips Constr. [ v . M i s s. State Highway Com m ’n ], 4 20 So. 2 d [ 1374,] 1375–76 [ ( M i s s
. 1982)]. T hus, a cost bond ( or e vidence o f pay m e nt of the cost of preparing the record) m

ust alway s be f

iled to perf

ect an appeal properly , but where the statute does not require a supersedeas bond, it is not a prerequisite f or 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 f ailed t o f i le a notice
of appeal and pay a cost bond within the statutory period. W e wrote that appeals f r om county
courts to circuit courts a re governed by Section 11-51-79. Id

. At the tim e, Section 11-51-79 provided in part: “Appeals f rom the county court shall be taken and bond given within ten day s of t he entry

of the f inal judgm ent or decree o n the m i nutes of the court[ .]” Id

. at 570.
The Court held t hat t he a ppellant’s f

ailure to “post the bo n d ” was jurisdictional, and, as a result, the circuit court had no power to hear the appeal. Id . at 571.

1 2¶27. In T. J a c k s o n L yons & Associates, P.A. , t he county court entered a f inal judgm ent

on February 4, 2010, and the appellant f iled a n o t i c e o f appeal the sam e day

. T. Jackson Lyons & Assocs., P.A. , 87 So. 3d at 452 (¶ 26). On February 22, 2010, the appellant gave $450 in cash to t he court clerk to pay the estim ated cost of preparing the record, and he f iled

a Rul e 11 certif

icate of com

pliance, evidencing the satisf a c tion of t he statutory bond requirem ent. I

d

. W e wrote tha t a literal bond was not needed because the cost bond was satisf i ed in its entirety by the cash pay m ent. I d

. Thus, the appellant’s n otice of appeal and
evidence of satisf

action o f the cost bond were f i led within thirty day s a s r equired by Section
11-51-79. Id

. Becau s e t he appeal was perf ected properly , the Court held that the circuit court had appellate jurisdiction over the m a t ter. I d

. ¶28. In the case sub judice , however, it is undisputed that, while Belm ont tim e l y f iled its
notice of appeal, it did not pay the cost bond within thirty d ay s o f the county court’s f inal judgm ent as required by Section 1 1-51-79. B ecause B elm ont f a i l e d t i m ely to pay the cost bond, the circuit court did not have appellate jurisdiction. ¶29. The C ourt routinely has acknowledged the existence of statutes requiring p a r t i e s to post a bond as a condition precedent to perf ecting their appeals f

rom adm inistrative agency decisions. See 5

K Farm s, Inc. , 94 So. 3d at 228-29 (¶¶ 27, 30) (holding that a statutory pretrial bond requirem ent is a requirem ent gover n i n g a p pellate j urisdiction rather than a procedural requirem ent). W e wrote that “[ t]he existence of [ s uch] statutes i ndicates that the principle that bonds r elate to appellate jurisdiction and hence are within the purview of the Legislature is well g r ounded i n M i s s i s s i p p i law.” Id

. at 228-29 (¶ 27); see also Robinson

1 3v. Morgan , 214 So. 3 d 188, 191 (¶ 14) (Miss

. 2 0 1 7 ) ; M i s s . D ep’t of R evenue v. AT & T
Cor p . , 1 0 1 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. W h ile the c ases m entioned involved a p p e a l s t o trial courts f

rom a dm inistrative agency decisions, the principle rem ains the sam e. It is the prerogative of the Legislature to set the appellate jurisdiction of circuit c o u r t s; it is not t he Court’s prerogative to establish jurisdiction through rules of procedure. ¶31. Furtherm ore, the circuit court did not err by f inding that the jurisdictional requirem ent
to pay a cost bond is n ot a def iciency as contem

p l a t e d b y M ississippi Rule of A ppellate Procedure 2. Rule 2(a) is inapplicable to the case sub judice . Rule 2(a) provides: (a) Dism issal of Appeal. (1) Mandatory Dism issal. An appeal shall be dism i ssed if the notice of appeal was not tim ely

f iled pursuant to Rules 4 or 5. (2) Discretionary Dism issal. An appeal m ay be dism iss e d u p on m otion of a party o r on m otion of the appropriate a p p e l l a t e c o urt (i) when the court determ ines that there is an obvious f ailure t o prosecute an appeal; or (ii) when a party f ails t o com

ply s ubstantially with these r ules. W hen either court, on its own m otion or o n m otion of a party , determ ines t hat dism issal m ay be warranted under t his Rule 2(a)(2), t he clerk of the S u p r e me Court shall g ive written notice to the party in def ault, apprising the p a r t y o f the nature of the def iciency

. If t he p arty in d ef ault f ails t o correct the d ef

iciency within f

ourteen (14) d ay s af

ter notif ication, the appeal shall be dism issed by t h e clerk of the Suprem e Court. The attorney f or the party i n def

ault h as the burden to correct p r om ptly a ny def

iciency or to s ee that the def ault is corrected by t h e appropriate o f

f icial. M otions f

or additional tim e in which to f ile brief s will not be entertained af

ter the notice of

the def iciency has issued.
M.R.A.P. 2.

1 4¶32. At the hearing on the m otion to dism i ss the appeal, Davis argued that S ection 11-51-

79 requires the appellant to pay the cost bond regardless of what the clerks have done. W e
agree. Here, the circuit clerk was under no obligation to notif y Belm o nt of its f

ailu r e to

com ply with the statutory j urisdictional requirem e nt o f p ay ing t he cost bond. Rule 2 sim ply does not apply

to the def

iciency at issue here, i.e

. , lack of jurisdiction. The def

i ciencies as
described in Rule 2(a)(2) occur only “(i) when the court determ ines that there is an obvious
f ailure to prosecute an appeal” or “(ii) when a party f ails t o com

ply s ubstantially with these
rules.” The circuit court, sitting as an appellate court, d id not enter a d iscretionary dism issal
under Rule 2 (a)(2) f

or t he f ailure to com

ply w i th “these rules,” i.e ., the Mississippi Rules of Appellate Procedure ; rather, the circuit court d ism issed the a ppeal f or lack o f appellate jurisdiction

. As explained above, it is t he Legislature’s p rerogative to set appellate jurisdiction of

circuit courts. It did so in Section 11-51-79. ¶33. For the sam e reasons, Rule 2( a ) ( 2 ) ’ s i n s t r u c t i on to provide a def aulting appellant
f ourteen day s to correct the appeal’s def iciencies is not applicable. Be l mo n t w as not deprived of due process when its appeal w as dism issed without notice u nder Rule (2)(a)(2)
because its f

ailure was not a procedural def iciency ; rather, its appeal was dism issed f or its
f ailure to com

p ly with the statutory

jurisdictional requirem ent o f tim ely pay ing the cost bond.
Belm ont’s def

iciency and due process argum ents are without m erit. T he circuit court’s judgm ent and o u r holding f urther com

port with Unif

orm R ule o f Circuit and County Court
Practice 5.04, which governs the procedures f o r appealing m a tters f

rom county c ourts to circui t courts. Consistent with Section 11-51-71, Rule 5.04 r equires that t he costs of the

1 5appeal be paid within thirty day s of the ju d g me nt o r order b eing appealed in o rder f or the appealing party

to perf ect the appeal.

CONCLUSION ¶34. For the f

oregoing reasons, we af

f irm the circuit court’s judgm ent. ¶35. AFFIRMED

. RANDOLPH, P .J., BEAM, CHAMBERLAIN AND ISHEE, JJ., CONCUR. MAX W ELL, J., C ONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. WALLER, C.J., DISSENTS W I T H SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J., AND KING, J. WALLER, CHIEF JUSTICE, DISSENTING: ¶36. Because I b elieve the statutory tim e lim itation to pay a cost bond cannot s u persede or im p ede the Court’s constitutional au t h o r i t y to govern rules of practice and procedure, I respectf ully dissent. ¶37. Davis contends that t his Court already has held that a cost bo n d i s j u r i s d i c t i o nal
b e c a u s e i t i s a statutory requirem ent f or a p peal. 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
pay m ent of t he cost bond i s jurisdictional. But I believe a ny def iciencies in the pay

m ent of
the bond are addressed under the M ississippi Rules of Appellate P rocedure. Davis paid the
proper cost bond but f

ailed to do so within thirty day s because of his inability to f ind out how

m uch to pay
. This i s a def

iciency , not a f

ailure. Under the rules of this C ourt, m andatory
dism is s a l o c curs only w hen the notice of appeal is not tim ely , which is n ot at i ssue here. M.R.A.P. 2(a)(1).

1 6¶38. The Lyons case m ixed statutes and c ourt rules in its a naly sis b ut did not consider how

def iciencies are addressed under Mississippi Rule of Appellate Procedure 2(a)(2). In f act, this Court f

ound that the cost bond paid by Martin was suf f icient. The issue o n appeal was whether Martin properly

f iled a supersedeas bond:
L y ons uses the term “appeal bond” but r ef ers to Martin’s m otion to waive supersedeas bond and t he $1,000 paid by Martin. In hi s m o tion to dism iss f iled in circuit court, Ly ons noted that the order allowing Martin to p ost bond in the am ount of $ 1,000 did n o t s tate that t he bond would supersede the judgm ent. W hile Ly ons uses the term “appeal bond” f or the bond requirem ent of Mississippi Code Sect i o n 11–51–79, he a ppears to be ref

erring to a supersedeas bond. Lyons , 87 So. 3d at 451. ¶39. So, Lyons does not support Davis’s a r g u me n t

. T h e o p i n i on discussed only the
dif f erences in “appeal bonds, cost bonds, and s upersedeas bonds

. . . to p rovide clarity .” Id

. at 4 48. More im

portantl y , the authorities cited in Lyons regarding the s tatutory cost bond requirem ent predate the a d o p t ion of the Mississippi Rules of Appellate P rocedure. 5 The
other cases cited by Davis involved appeals t o trial courts f rom adm inist r a t i v e - a gency decisions, not actions that originated in a trial court. See 5K Farm s, Inc. v. Miss. Dep’t of
Revenue , 94 So. 3d 2 21, 227 (¶ 22) (Miss. 2012) ( appeal s tem m e d f rom a determ ination

m ade by the Mississippi Tax Com m ission); s ee also Jackson State Univ. v. Upsilon Epsilon Chapter of O m e

g a P s i P hi Fraternity, Inc. , 952 So. 2d 184, 1 86 (Miss. 2 007) (appeal

5 T h e M ississip p i R u les o f A p p ellate P ro ced u re w ere ad o p ted ef f ectiv e J an u ary 1 , 1 9 9 5

. S ee a lso S u p rem e C o u r

t R u les (ad o p ted Jan u ary 1 , 1 9 8 8 ). C ases cited n o t i n v o lv i n g ad m in istrativ e d ecisio n s i n clu d e J o h n so n v . E va n s , 5 1 7 S o
. 2 d 5 7 1 (M iss. 1 9 8 7 ); W illia m s v. M ich a el , 3 1 9 S o
. 2 d 2 2 6 ( M iss. 1 9 7 5 ); P a rk m a n v. M

i ss. S t a t e H ig h w a y C o m m ’n , 2 5 0 S o
. 2 d 6 3 7 ( M iss. 1 9 7 1 ); C a rn ey v. M

o o r e , 1 3 0 M iss. 6 5 8 , 9 4 S o
. 8 9 0 (1 9 2 3 ); H u m p h reys v. M cF a rla n d , 4 8 S o . 1 8 2 (M iss. 1 9 0 9 ). 1 7stem m ed f

rom the ruling o f t he JSU Student L i f e D i sciplinary Com m ittee); Miss. State
Personnel Bd. v. Arm s trong , 454 So. 2d 912, 915 (Miss. 1984) (appeal stem m ed f rom the
p e t i t i o ner’s f

a ilure t o f i le a bond af

ter a j udgm ent f

rom a hearing of

f icer em ploy ed b y t h e Mississippi Em

ploy ee Appeals Board). ¶40. The ultim ate ef

f ect of M ississi p p i Code Section 11-51-79 respecting conf licts with
the rules of procedure adopted by this Court was addressed i n Davis v. N ationwide Recovery Ser., Inc. , 797 So. 2d 929, 930 (Miss. 2001). At that tim e, Section 11-51-79 required that: “Appeals f

rom t he county court shall be taken

. . . within ten (10) day s f rom the date of entry of the f inal judgm ent[ .]” Miss Code Ann. § 11-51-79 (1972), amended by Miss. Code Ann. § 11-51-79 (2001). This tim e lim itation arguably is just as applicable to subject-m atte r jurisdiction as is the r equirem ent to post a cost bond within thirty day s. In Davis , the circuit

court had dism issed Davis’s appeal as untim ely because o f the ten-day lim it set out in the

statute. In reversing, this Court held unanim ously that Unif orm Rules of Circuit and County Court Practice 5.04 and 12.03 provided that appeals were to be m a de within thirty day s: W i th the adoption of the Rules of Civil Procedure and th e Court’s pronouncem ents i n Hall v. State , 539 S o. 2 d 1338, 1345 (Mis s
. 1 9 8 9), and Newell v. State , 308 So. 2d 71, 76 (Miss. 1975) , w e articulated its power to establish rules regarding a ppeals f rom court to court, and i ts m andate that such r u l e s supercede statutes which a re in conf lict with the r

ules. A c cord , V

a n Meter v. Alford , 774 So. 2d 430, 432 (Miss. 2000); Am erican Investors, Inc., v. King , 733 So. 2d 830, 832 (Miss. 1999).
Davis , 797 So. 2d at 930. ¶41. W h ile the cost bond i s jurisdictional, def iciencies a re addressed by court rules. This Court, i n Brown v. Collections, Inc. , addressed t he sam e statute at i ssue h ere, Section 11-51-

1 879. Brown v. Collections, Inc. , 188 So. 3d 1171 (Miss. 2 016). The statute at issue in Brown

provided that no interlocutor y a p p e a ls could be taken f rom county court. To take the
argum ent of the m ajority and apply it here, the Legislature said there was n o jurisdiction f or

an appeal f

rom county court t o circuit court. T h i s C o u r t unanim ously held in Brown that
there was a conf

lict between Section 11-51-79 and Mississippi Rule of Appellate Procedure 5, and that the rule controlled:
So there is obviously a conf lict between the statute and t he rule-base d interlocutory appeal procedure. W hen such a conf lict exists, our court’s rules t r u m p statutory law. Stevens v. Lake , 6115 S o. 2d 1177, 1183 (Mi s s
. 1 9 9 3 ) (“statutes that conf

lict with rules adopted by the Court are void”).
Brown , 188 So. 3d at 1177. ¶42. In V

an Meter v. Alford , 774 So. 2d 430 (Miss. 2000), V an M eter f iled his appeal f

rom county court to circuit c ourt on the thirtieth d ay af ter judgm ent and p aid the clerk’s f iling f ee of $100. V an Meter’s a

ppeal contained a n um

ber of def iciencies, resulting in a m otion and subsequent order o f dism issal. On appeal, this Court held, am o ng other things, that an appeal
f rom county court to circuit court is governed b y the M i s s i s s i p p i Rules of A ppellate
Procedure:
The Court h a s previously addressed t his issue in Am erican Investors, Inc. v. King , 7 33 So. 2d 83 0 , 8 3 2 ( M iss. 1999) (“An appeal f rom county court to circuit court is controlled by the M ississippi Rules of Civil Procedure

. . . , the URCCC , a n d the M .R.A.P.”). W e specif ically held that M.R.A.P. 2(a)(2) applies to appeals f

rom c o unty court to circuit court. Id

. Rule 2(a)(2) m andates that, af

ter a m o tion to d ism iss has been f i l e d, t he court clerk (the circuit clerk i n this i nstance) of f icially notif

y an appellant of def

iciencies in his appeal and that the a

ppellant be given f

ourteen (14) day s theref

rom t o correct any def iciencies.
V an Meter , 774 So. 2d at 432.

1 9¶43. The m ajority r elies on U n i f o r m R u l e o f Circuit and County Court Practice 5.04 to support i ts conclusion t hat t he f ailure to pay the c ost bond w ithin thirty day s of the j udgm ent deprives the circuit court of appellate jurisdiction. Such sum m ary t r e a t m ent is contrary to the Mississippi Rules o f Appell ate Procedure. Rule 2 m andates dism issal only when the
notice of appeal is not f

iled tim e ly

. (1) Mandatory Dism issal. A n appeal shall be dism issed if the notice of appeal was not tim ely

f iled pursuant to Rules 4 or 5. M.R.A.P. 2(a)(1). The m ajority has, i n ef f ect, am ended the Mississippi Rules of Appellate
Procedure. ¶44. In m y view, the late f iling of an o therwise law f u l a p p e a l b o n d i s a d ef

iciency
controlled by our rules. Mississippi Rule of A p p e llate P rocedure 2(a)(2) requires that the

court clerk of

f icially notif

y Belm ont Holdings of the d ef iciency

. As s tated in V

an Meter , the
lack of notice is a deprivation of due process:
Van Meter was t heref

o r e deprived of due process when his appeal was dism i ssed because he was not given an o f f icial notice of def

icienci e s in his appeal by the circuit clerk. Alf

ord’s m otion to dism iss cannot be substituted f or an of f icial notice of d ef

iciencies f

rom the court clerk. Even where a p arty has m oved to d ism iss, the p lain language of the rule r equires a notice f rom the clerk of the def iciency and a f ourteen day opportunity to cure the def i ciency

. V an Meter , 774 So. 2d at 432 ¶45. In c onclusion, the autom a tic dism issal required by the m ajority f or the f ailure to pay

or post a cost bond within thirty day s under Section 11-51-79 and Unif orm Rule of Circuit
and County C ourt Practice 5.04 c onf licts with t he Mississippi Rules of Appellate Procedure.
I would reverse t he circuit court’s j udgm ent of dism issal a nd r em and f o r f urther proceedings.

2 0KITCHENS, P.J., AND KING, J., JOIN THIS OPINION.

2 1