United Southern Bank v. Bank of Mantee

• Decision Date: 26 September 1996
• Docket Number: No. 93-CA-00687-SCT,93-CA-00687-SCT
• Citation: 680 So.2d 220
• Parties: UNITED SOUTHERN BANK and United Southern Corporation v. BANK OF MANTEE and James R. Gray.
• Court: Mississippi Supreme Court

Page 220

680 So.2d 220

UNITED SOUTHERN BANK and United Southern Corporation v. BANK OF MANTEE and James R. Gray.

No. 93-CA-00687-SCT.

Supreme Court of Mississippi.

Sept. 26, 1996.

Stephan L. McDavid, John H. Dunbar, Holcomb Dunbar Connell Chaffin & Willard, Oxford, for appellant.

Craig N. Landrum, Sam S. Thomas, Heidelberg & Woodliff, Jackson, for appellees.

Before DAN LEE, C.J., and McRAE and SMITH, JJ.

DAN LEE, Chief Justice, for the Court:

This is an appeal of costs taxed by the lower court against United Southern Bank (United Southern). The parties were previously before this Court and, at that time, this Court reversed and rendered the chancellor's judgment as it applied to the Bank of Mantee (Mantee). The Court ordered that United Southern be taxed one-half of the costs of appeal. As part of Mantee's costs of appeal, the lower court held that Mantee's lost investment opportunity was a recoverable cost of appeal and entered judgment against United Southern in the amount of $15,811.00. This amount included $13,551.00 for "lost investment income." United Southern, aggrieved by the chancellor's ruling, appeals and assigns the following as error:

I. SUPREME COURT RULE 36(c) SPECIFIES FOUR TYPES OF OUT-OF-POCKET COSTS WHICH CAN BE TAXED BY A TRIAL COURT AS COSTS OF APPEAL. THE TRIAL COURT BELOW INCLUDED IN THE COSTS IT TAXED A SUM FOR ALLEGED "LOST INVESTMENT INCOME." DOES THE TRIAL COURT HAVE DISCRETION TO TAX COSTS NOT PROVIDED FOR IN SUPREME COURT RULE 36(C)?, AND

II. IF THE TRIAL COURT HAS SUCH DISCRETION, DID THE CHANCELLOR ABUSE ITS [sic] DISCRETION BY TAXING COSTS FOR LOST INVESTMENT OPPORTUNITY?

After a careful review of the issues and law presented in this matter, it is the opinion of the Court that the lower court erred by abusing its discretion in taxing one-half of the $27,102 lost investment income as a cost of appeal; however, the lower court was correct in taxing United Southern one-half of the direct court costs. Therefore, this case is reversed and rendered as to the amount of lost income taxed but affirmed as to the taxing of one-half of the direct costs of appeal.

STATEMENT OF THE FACTS

On May 9, 1989, the Chancery Court of DeSoto County entered a final judgment in the amount of $672,855.97 against Omnibank of Mantee (Mantee), formerly known as Bank of Mantee, resulting from a branch bank officer's imprudent credit practices. Mantee appealed and on July 22, 1992, this Court reversed and rendered the chancellor's judgment as it applied to Mantee. Omnibank of Mantee v. United Southern Bank, 607 So.2d 76 (Miss.1992). The Court's mandate ordered United Southern Bank (United Southern) to pay one half of the costs of appeal.

Instead of paying a premium to a commercial surety for a conventional supersedeas bond, Mantee filed a motion requesting permission to pledge its own assets. United Southern objected at the outset but the parties eventually compromised, and as a result Mantee pledged certain instruments to secure its appeal with supersedeas.

Mantee proceeded before the chancellor with a motion to Tax Costs of Appeal, and Amended Motion to Tax Costs. The Amended Motion sought to recover monies Mantee alleges to have lost as a result of having to divert earning assets to secure its appeal bond.

Mantee sought costs of appeal in the amount of $41,000.79. This sum was comprised, in part, of $1,920 for reporter's fee; $2,500.00 for clerk's fee; and a $100 filing fee, for a subtotal of $4,520.00. In addition, Mantee sought $36,480.79 for the costs incurred in obtaining an alternative supersedeas bond arrangement. This sum included $27,102 which Mantee alleges was the loss Mantee experienced on its earnings as a result of having to pledge lower yielding instruments in the alternative supersedeas bond arrangement. The remaining was attorneys' fees attributable to the bond arrangement. Mantee sought judgment against United Southern in the amount of $20,500.40, comprised of one-half of the $4,520 in court costs and one-half of the alternative bond arrangement cost of $36,480.79.

The Chancellor found that Miss.Sup.Ct.R. 36(c), now M.R.A.P. 36(c), gave the chancellor discretion to tax costs not specified by the rule. The chancellor found further that, although Mantee did not pay a premium for a conventional supersedeas bond, Mantee "did incur costs in lieu of a surety bond in the amount of $27,102, which costs were less than the costs that would have been incurred by a supersedeas bond." The chancellor denied Mantee's request for attorneys' fees related to the alternative bond arrangement. Holding that the costs incurred in lieu of a supersedeas bond were properly taxable, the chancellor awarded Mantee one-half of the $27,102.00 and one-half of the $4,520 in court costs for a total judgment amount of $15,811.

United Southern, believing the chancellor's order was not in accordance with M.R.A.P. 36(c), sought reconsideration of the matter, which was denied, and then perfected this appeal.

STANDARD OF REVIEW

Our review of a chancellor's findings is well-settled and very familiar. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied. Bowers Window and Door Co., Inc. v. Dearman, 549 So.2d 1309 (Miss.1989) (citing Bullard v. Morris, 547 So.2d 789, 791 (Miss.1989)); Gibson v. Manuel, 534 So.2d 199, 204 (Miss.1988); Johnson v. Hinds County, 524 So.2d 947, 956 (Miss.1988); Bell v. City of Bay St. Louis, 467 So.2d 657, 661 (Miss.1985); Culbreath v. Johnson, 427 So.2d 705, 707-08 (Miss.1983).

DISCUSSION OF THE LAW

SUPREME COURT RULE 36(c) SPECIFIES FOUR TYPES OF OUT OF-POCKET COSTS WHICH CAN BE TAXED BY A TRIAL COURT AS COSTS OF APPEAL. THE TRIAL COURT BELOW INCLUDED IN THE COSTS IT TAXED A SUM FOR ALLEGED "LOST INVESTMENT INCOME." DOES THE TRIAL COURT HAVE DISCRETION TO TAX COSTS NOT PROVIDED FOR IN SUPREME COURT RULE 36(C)?

Appellant United Southern argues that the chancellor acted outside the law by permitting Mantee to recover "lost investment income" as part of the taxable costs of appeal. United Southern contends that Rule 36(c) does not provide for non out-of-pocket expense recovery.

Appellee Mantee counters, arguing that the funds it pledged to secure its appeal were invested in low yielding instruments and therefore the losses it sustained were costs attributable to securing its appeal with supersedeas and accordingly taxable as costs of appeal.

Mantee requested and was allowed to pledge low yielding securities in lieu of obtaining a conventional supersedeas bond. The record reveals evidence, in the form of an affidavit of Linda Whittington, that the premium for a conventional supersedeas bond, in the amount of $841,000.00, would have been $43,739.00. Mantee made the conscious choice to pursue this route rather than the more conventional manner of securing an appeal with supersedeas.

M.R.A.P. 36, in its current form, differs slightly from the previous Supreme Court Rule version relied upon by Appellant in the case at bar. In the earlier version, Rule 36(c) read in part: "[i]f a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the Court." Today, that rule reads in part:

(a) To Whom Allowed. Except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the Supreme Court or the Court of Appeals. If a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered. If a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered. If a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the court which decided the case.

....

(c) Costs on Appeal Taxable in Court Below. Costs incurred in the preparation and transmission of the record, the costs of the reporter's transcript, if necessary for the determination of the appeal, the premiums paid for cost of supersedeas bonds or other bonds to preserve rights pending appeal, and the fee for filing the appeal shall be taxed in the trial court as costs of the appeal in favor of the party entitled to costs under this rule.

M.R.A.P. 36.

Under the earlier version of Rule 36, this Court, and not the trial court, was granted the discretion to determine which costs can be taxed on appeal. However, the new version does direct that the "costs shall be allowed only as ordered by the court which decided the case." Nevertheless, both versions were followed by paragraph (c) which specifies which costs of an appeal can be recovered. In part, Rule 36(c) provides that "the premiums...