Smith v. City of Saltillo
| Docket Number: | 2009-CA-01003-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 09-21-2010 Opinion Author: Lee, P.J. Holding: Reversed and rendered. |
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| Additional Case Information: |
Topic: Lost wages - Tort Claims Act - Notice of appeal - URCCC 5.04 - Cost bond - M.R.A.P. 11 - Appeal deficiencies - M.R.A.P. 2(a)(2) - Due process - Section 11-46-9(1)(a) Judge(s) Concurring: King, C.J., Myers, P.J., Irving, Griffis, Barnes, Ishee, Roberts and Carlton, JJ. Non Participating Judge(s): Maxwell, J. Procedural History: Dismissal Nature of the Case: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 05-19-2009 Appealed from: LEE COUNTY CIRCUIT COURT Judge: James L. Roberts Disposition: CLAIM FOR DAMAGES SUMMARILY DISMISSED Case Number: 08-154 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | William Smith |
GENE BARTON |
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| Appellee: | City of Saltillo, Mississippi | TERRY DWAYNE LITTLE | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Lost wages - Tort Claims Act - Notice of appeal - URCCC 5.04 - Cost bond - M.R.A.P. 11 - Appeal deficiencies - M.R.A.P. 2(a)(2) - Due process - Section 11-46-9(1)(a) |
| Summary of the Facts: | William Smith pled guilty to driving under the influence, first offense. He was ordered to pay a fine, which he agreed to pay in installments. After the final installment of his fine was paid, the municipal court clerk noticed that the court abstract had not been sent to the Mississippi Department of Public Safety. She sent the information in May 2006. When the Department of Public Safety received this information, Smith was sent notice by mail that his driver’s license would be suspended for ninety days. Smith filed a complaint against the City of Saltillo alleging that he incurred $70,000 in damages for lost wages in his job as a truck driver due to the suspension of his license in 2006. He had stopped driving for ninety days in 2004 under the assumption that his license was suspended immediately following his guilty plea. The City filed a motion to dismiss and a motion for summary judgment. The county court found that the City was immune under the Tort Claims Act and dismissed Smith’s claims with prejudice. On November 10, 2008, Smith appealed to circuit court. The City did not receive notice of the appeal until March 30, 2009. Smith’s counsel states that he was also unaware of the briefing schedule until March 30. Counsel for the City contacted the county court, which advised him that it had never received a copy of the notice of appeal. On March 31, 2009, Smith filed a motion for additional time to file his brief. His motion was granted. On April 17, 2009, the City responded with a motion to vacate the order granting additional time and a motion to dismiss the appeal. The circuit court granted the City’s motions. Smith appeals. |
| Summary of Opinion Analysis: | The circuit court dismissed Smith’s appeal from county court because Smith had failed to give notice of his appeal to the parties of record and the lower court as required by URCCC 5.04. Smith also had failed to secure the record from the lower court and obtain a cost bond as required by M.R.A.P. 11. Smith argues that it was the responsibility of the circuit court to notify him of any deficiencies in his appeal and allow him fourteen days to correct those deficiencies. When deficiencies exist in the proper perfection of an otherwise timely appeal from county court to circuit court, M.R.A.P. 2(a)(2) applies. That rule requires fourteen days notice by the court clerk before sanctions, such as dismissal, may be imposed. Smith perfected his appeal within thirty days of the entry of the final judgment by the county court by filing a notice of appeal. However, no other action was taken. The City filed its motion to dismiss on April 17, 2009, and the case was dismissed on May 19, 2009. Smith received constructive notice that he had failed to comply with the rules of appellate procedure when he received the motion to dismiss on April 17. However, Smith did not receive actual notice from the circuit court clerk. Even where a party has moved to dismiss, the plain language of the rule requires a notice from the clerk of the deficiency and a fourteen day opportunity to cure the deficiency. Thus, Smith was deprived of due process. Despite the circuit court’s error, however, it is unnecessary to remand this case to the circuit court as Smith’s original claim is barred by the Tort Claims Act. The failure of the municipal court clerk to send Smith’s abstract to the Department of Public Safety was an administrative action or inaction of a legislative or judicial nature which is protected by section 11-46-9(1)(a). |
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