Riley v. Town of Lambert, 2002-CA-01006-COA.

• Decision Date: 07 October 2003
• Docket Number: No. 2002-CA-01006-COA.,2002-CA-01006-COA.
• Citation: 856 So.2d 721
• Parties: Curtis RILEY, Appellant, v. TOWN OF LAMBERT, Mississippi, Appellee.
• Court: Mississippi Court of Appeals

856 So.2d 721

Curtis RILEY, Appellant, v. TOWN OF LAMBERT, Mississippi, Appellee.

No. 2002-CA-01006-COA.

Court of Appeals of Mississippi.

October 7, 2003.

Azki Shah, Clarksdale, attorney for appellant.

Jimmy L. Miller, Marks, attorney for appellee.

EN BANC.

IRVING, J., for the Court:

¶ 1. The Circuit Court of Quitman County dismissed, for want of prosecution, Curtis Riley's appeal of his misdemeanor convictions in the Municipal Court of the Town of Lambert. Following a denial of his motion to reconsider the dismissal, Riley filed this appeal in which he alleges that the trial court erred in dismissing the appeal because it was dismissed via a procedure for dismissal of stale civil, not criminal cases.

¶ 2. We agree with Riley that the motion leading to the dismissal was improperly filed pursuant to rules of procedure which provide a procedural framework for the dismissal of stale civil cases only. Notwithstanding this procedural blip, we find that there is a legitimate basis for the dismissal of the appeal. Therefore, we affirm the trial court's dismissal, although for a different reason.

FACTS

¶ 3. Curtis Riley was convicted on February 23, 1998, in the Municipal Court of the Town of Lambert, of contributing to the delinquency of a minor and allowing minors into his billiard hall lounge. On March 23, 1998, Riley filed, in the Circuit Court of Quitman County, a notice of appeal from his misdemeanor convictions in the municipal court. On April 21, 1998, almost thirty days past the thirty-day appeal time, he filed a cost bond. He did nothing thereafter to prosecute the appeal, and nothing occurred in the appeal until April 2000, when the Circuit Clerk of Quitman County, acting pursuant to Rules 5 and 41 of the Mississippi Rules of Civil Procedure, filed a motion to dismiss the appeal for lack of prosecution.

¶ 4. According to the record, the clerk served the motion on Riley's attorney on April 6, 2000. The motion advised Riley that the case would be dismissed "unless within thirty days of the date of [the service of the motion], action of record is taken, or written application is made to the Court and good cause shown why such case should not be dismissed." The trial court did not sign the order of dismissal until January 8, 2001. The record does not reflect that Riley took any action in the interim. On February 6, 2002, approximately thirteen months after the order of dismissal was entered, Riley filed a motion to set aside the dismissal. In his motion, Riley argued that a defendant in a criminal case is under no obligation to set his case for trial and that the trial court never set a date for trial. This motion, as well as a motion to reconsider, was denied, leading to this appeal.

ANALYSIS OF THE ISSUE AND DISCUSSION OF THE LAW

¶ 5. Riley argues that the trial court erred in granting the clerk's motion because the clerk had no authority to file such a motion in a criminal case. We agree with Riley that Rules 5 and 41 of the Mississippi Rules of Civil Procedure, which were the procedural foundation upon which the clerk operated, apply to civil and not criminal cases. However, we disagree that this procedural blunder means that the appeal should be reinstated.

¶ 6. As we have already noted, Riley filed a notice of appeal on March 23, 1998, from the judgments of conviction which were entered on February 23, 1998, but no cost bond was filed until April 21, 1998, almost two months following the date of the judgments.

¶ 7. Rule 12.02 of the Uniform Circuit and County Court Rules states in pertinent part that:

Any person adjudged guilty of a criminal offense by a justice or municipal court may appeal to county court or, if there is no county court having jurisdiction, then to circuit court by filing simultaneously a written notice of appeal and cost bond within 30 days of such judgment with the clerk of the circuit court having jurisdiction. The written notice of appeal and posting cost bond perfects the appeal. The failure to post any bond required by this rule shall be grounds for the court, on its own motion or by motion of another, to dismiss the appeal with prejudice and with costs.

URCCC 12.02(A) (emphasis added). Subsection (B) of Rule 12.02 requires the posting of an appearance bond. The applicable portion of this subsection provides:

Unless excused by the making of an affidavit as specified in § 99-35-7 of the Mississippi Code of 1972, bond with sufficient resident sureties (or licensed guaranty companies), to be approved by the circuit clerk, or of cash shall be given and conditioned on appearance before county or circuit court from day to day and term to term until the appeal is finally determined or dismissed.

URCCC 12.02(B).

¶ 8. A review of the record reveals that, in addition to the tardy filing of the cost bond, Riley never filed an appearance bond. A document styled as a supersedeas bond is found among the court papers, but that document is not approved by any official associated with either the circuit or municipal court. Moreover, this bond was also filed late, as it was also filed on April 21, 1998, approximately thirty days past the appeal period. Further, the contents of the document indicate that it is really a cost bond, not an appearance bond.

¶ 9. On these facts, two conclusions are inescapable. First, Riley's appeal was not timely perfected, for the rule provides that the appeal is not perfected until two things occur: the filing of a written notice of appeal and a cost bond. Both of these filings are to be done within thirty days of the judgment from which the appeal is taken. Here, the written notice of appeal was filed within the thirty days permitted by the rule, but the cost bond was not filed until approximately sixty days after the municipal court judgment was entered. Therefore, it was not timely. Second, it is not debatable that an appearance bond was never filed. The rule provides that the failure to post any bond required by this rule shall be grounds for the court, on its own motion or by motion of another to dismiss the appeal with prejudice.

¶ 10. Therefore, since Riley failed to post one of the requisite bonds, the trial court, in its discretion, was empowered to dismiss the appeal on its own motion or by the motion of another. Here it was the clerk of the court, traveling in a civil procedure vehicle and invoking a different basis than that provided for in Rule 12.02, who asked that the appeal be dismissed. The trial court, embracing the message contained in the clerk's invocation, utilized its discretion and dismissed the appeal. In deciding the appropriateness vel non of the trial judge's action, we look not at the identity of the messenger or the type of procedural vehicle employed by the messenger to deliver the message, but at the totality of the factual circumstances to ascertain whether there is any legal basis which may properly justify the action taken by the trial judge in response to the message.

¶ 11. It is elemental law that appellate courts are authorized to affirm the judgment of the trial court on a different basis than that employed by the trial court. See Askew v. Askew, 699 So.2d 515, 519 n. 3 (Miss.1997)

; Stewart v. Walls, 534 So.2d 1033, 1035 (Miss.1988). We find that, based on the facts of this case, the trial judge's decision to dismiss the appeal is one that reposes within the discretion granted him under Rule 12.02. He could have, and should have, dismissed the appeal because of Riley's failure to comply with the requirement that both a cost and appearance bond be posted. Since Riley failed to post an appearance bond and failed to timely post a cost bond, we see no reason to conclude that the trial court abused its discretion in dismissing the appeal.

¶ 12. The dissent, citing Dixon v. State, 528 So.2d 832 (Miss.1988), Mitchell v. Parker, 804 So.2d 1066, 1072 (Miss.Ct.App. 2001), and subsection "C" of Rule 12.02, argues that affirming the trial judge's dismissal of this case runs afoul of subsection "C". Also, the dissent, arguing that Riley had no obligation to bring himself to trial, blames the Town of Lambert for doing nothing following Riley's filing of the notice of appeal.

¶ 13. Two points should be made regarding the dissent's argument. First, the dissent apparently does not understand the nature of the appearance bond which Riley had a responsibility to file but failed to do. The appearance bond contains an initial date for appearance in court. Usually that date is the first day of the term of court following the posting of the bond. The appellant is required to appear in court on that date to await further orders of the court regarding the disposition of his appeal. Second, as we demonstrate in the remainder of this opinion, none of the authorities cited support the dissent's view of the issue or contradict our holding. But before we address the matter of the cited authorities, we make some observations about some factual representations made by the dissent which are not supported by the record in this cause.

¶ 14. The dissent represents as a fact that on March 23, 1998, Riley filed a notice of appeal and paid a filing fee to the Circuit Clerk of Quitman County. The record does not support this representation.¹ The record reveals that a notice of appeal was filed on that date, but does not reveal that any fee or any money was paid. The index to the docket index also reflects that the notice of appeal was filed on March 23, 1998, but it too does not reflect a payment of any fees or any money on that date. Also, the dissent, while not representing as a fact that Riley presented the cost bond to the municipal judge for approval on March 14, 1998, embraces Riley's argument that the municipal judge was the reason for the delay in posting the cost bond. Again, nothing in the record, which is the official instrument upon which we must rely for our facts, supports Riley's argument in this regard. The fact that he...