Accredited Sur. and Cas. Co., Inc. v. Bolles, 57764

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: SULLIVAN; ROY NOBLE LEE; ANDERSON
• Citation: 535 So.2d 56
• Parties: ACCREDITED SURETY AND CASUALTY COMPANY, INC. v. Ann Atkinson BOLLES (Simmons).
• Docket Number: No. 57764,57764
• Decision Date: 30 November 1988

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535 So.2d 56 ACCREDITED SURETY AND CASUALTY COMPANY, INC.
v.
Ann Atkinson BOLLES (Simmons). No. 57764. Supreme Court of Mississippi. Nov. 30, 1988.

Alvin M. Binder, Lisa B. Milner, Binder, Milner & Milner, Jackson, for appellant.

J. Kevin Watson, Fox & Watson, Jackson, for appellee.

Before HAWKINS, P.J., and ROBERTSON and SULLIVAN, JJ.

SULLIVAN, Justice, for the Court.

Ann Bolles Simmons and William Bolles were divorced April 12, 1982, and as a result Bolles had substantial financial obligations to Simmons, which he ignored. In April 1984, Simmons sought a contempt citation and a Writ Ne Exeat Republica, among other things against Bolles. The Writ Ne Exeat was issued and a bond of $125,000.00 was required. After Bolles was arrested the bond was reduced to $50,000.00. Bolles paid $5,000.00 for a $50,000.00 bond from Ruth Newman d/b/a A-Bonding Company, as agent for Accredited Surety and Casualty Company, Inc., and was released from jail.

In November, 1984, Bolles was found in contempt, in arrears in the amount of $138,188.52, and the Ne Exeat Bond was continued in full force and effect. In February, 1985, the Ne Exeat Bond was again continued in full force and effect. This war of attrition continued without compliance

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by Bolles until July 7, 1986, when the chancellor again found Bolles in contempt for disobeying court orders and a show cause order was issued to Newman and Accredited Surety to either produce Bolles or show cause why the $50,000.00 bond should not be forfeited to Simmons.

At the hearing on July 25, 1986, counsel for Newman and Accredited Surety admitted that his clients could not produce Bolles and they were liable on the bond. However, both defendants urged the trial court that they only owed $12,466.50 plus attorneys fees, that being the amount last adjudged against Bolles by the chancellor. The actual arrearages and judgments against Bolles in favor of Simmons at that time far exceeded $50,000.00. The chancellor found that the entire $50,000.00 bond was forfeited and directed the drawing of an order to that effect. Counsel for Newman and Accredited Surety signed the order as "Agreed as to Form" even though the order provided that Newman and Accredited Surety were "jointly and severally" liable to Simmons. This order was entered on July 25, 1986.

Within the thirty day appeal time Newman, but not Accredited Surety, perfected an appeal to this Court. After the time for appeal, Simmons began efforts to collect her judgment from Accredited Surety. Accredited Surety sought and received a temporary restraining order to prevent execution on the judgment by Simmons. Simmons filed a motion to dissolve the temporary restraining order and Accredited Surety responded with a motion for relief from judgment or order under Miss.R.Civ.P. 60(b). The ground asserted for relief under Rule 60(b) is that the July 25, 1986, Order held Newman and Accredited Surety "jointly and severally" liable. Newman and Accredited Surety argued that their relationship is that of principal and agent thereby precluding any joint and several liability among them. They requested a proper order be entered reflecting that the July 25th judgment is against Accredited Surety and Casualty only and not against Newman and Accredited Surety, jointly and severally. The motion proceeded to hearing on (b)(2) of Rule 60, Miss.R.Civ.P., which provides for relief from judgment on account of "accident or mistake."

At the hearing Newman and Accredited Surety argued that the July 25, 1986, Order was entered under a mistaken belief that Newman and Accredited Surety were two separate sureties. The testimony at the hearing established unequivocally that the relationship was in fact one of principal/agent and not joint and several. Consequently, the chancellor entered an amended order declaring the previous order of July 25, 1986, to be of no effect. The amended order granted Simmons a judgment against Accredited Surety and Casualty only in the amount of $50,000.00.

As a result of the entry of the new order the thirty day appeal time began to run again from the date of the amended order and Accredited Surety promptly perfected an appeal in which it assigned only one error:

1. The Lower Court erred in awarding Simmons a judgment against the surety company in the entire amount of the Ne Exeat Bond, $50,000.00.

Simmons promptly perfected a cross-appeal, and also assigned only one error:

1. The Lower Court abused its discretion by setting aside its Order of July 25, 1986, thus allowing Accredited Surety to circumvent Supreme Court Rule 48 and perfect this appeal out of time.

I.

DID THE CHANCELLOR ABUSE HIS DISCRETION BY SETTING ASIDE HIS ORDER DATED JULY 25, 1986, THUS ALLOWING ACCREDITED SURETY TO CIRCUMVENT SUPREME COURT RULE 48 AND PERFECT THIS APPEAL?

Simply stated Simmons argues that Accredited Surety used its Rule 60(b)(2) request as a device, quite successfully, to circumvent Miss.Sup.Ct.R. 48. ¹ Rule 48 requires notice of appeal to be filed "within

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thirty days after the date of entry of the judgment, order or decree." In this case, Newman met the thirty day deadline by perfecting her appeal within the proper time. Accredited Surety, however, never perfected an appeal within thirty days of the July 25th Order. Simmons further argues that counsel for Newman and Accredited Surety had sufficient notice of the joint and several liability issue to seek its correction pursuant to 59(e), Miss.R.Civ.P., which gives a party ten days from entry of judgment to seek an alteration or amendment of that judgment.

Accredited Surety argues that a liberal interpretation of Rule 60 supports the action of the chancellor. Moreover, Accredited Surety asserts that the problems arising from the July 25th Order did not come fully to light until the judgment showed up against Ruth Newman personally on September 10, 1986. This assertion is contradicted by the language of the bond itself which states that Bolles, Newman, and Accredited Surety were "jointly and severally" bound, and by counsel for Accredited Surety's acknowledgment of her dissatisfaction with the language in the July 25th Order which was presented for her approval on July 25, 1986.

Notwithstanding the fact that counsel for Newman and Accredited Surety had notice of the language problem before the July 25th Order was signed by the chancellor, the lower court held that it had the right under Rule 60 to conform the original judgment to "what was intended and what has been true throughout this case [which] is that Ms. Newman, as A-Bonding Company, has been acting as the agent for Accredited Surety and Casualty Company." The chancellor felt that "to do anything else would be to act inequitably with regard to the surety company which signed the bond." The Amended Order was filed on September 11, 1986.

Motions...