T. Jackson Lyons & Assoc., P. A. v. Precious T. Martin, Sr. & Assoc., PLLC
| Docket Number: | 2011-CA-00167-SCT Linked Case(s): 2011-CA-00167-SCT ; 2011-CA-00167-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 04-12-2012 Opinion Author: Carlson, P.J. Holding: Circuit court reversed; County court reinstated and affirmed. |
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| Additional Case Information: |
Topic: Contract - Appellate jurisdiction - Appeal bond - Section 11-51-79 - Supersedeas bond - Cost bond - M.R.A.P. 8 - M.R.A.P. 11 - Section 11-51-79 - Attorney's fees - Section 11-53-81 - M.R.C.P. 37 - Open account Judge(s) Concurring: Dickinson, P.J., Randolph, Lamar, Kitchens, Chandler, Pierce and King, JJ. Non Participating Judge(s): Waller, C.J. Procedural History: Bench Trial |
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| Trial Court: |
Date of Trial Judgment: 12-09-2010 Appealed from: Hinds County Circuit Court Judge: Malcolm Harrison Disposition: The county court awarded Lyons $14,543.19 in damages and $4,847.73 in attorney’s fees. Case Number: 251-10-140 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | T. Jackson Lyons & Associates, P. A. |
LEE HOWELL |
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| Appellee: | Precious T. Martin, Sr. & Associates, PLLC; Hinds Circuit Court | PRECIOUS T. MARTIN, SR., SAUNDRA M. THOMPSON | ||
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: | Contract - Appellate jurisdiction - Appeal bond - Section 11-51-79 - Supersedeas bond - Cost bond - M.R.A.P. 8 - M.R.A.P. 11 - Section 11-51-79 - Attorney's fees - Section 11-53-81 - M.R.C.P. 37 - Open account |
| Summary of the Facts: | Precious Martin and Associates, PLLC contracted with T. Jackson Lyons & Associates, P.A. to handle appeal work on several of Martin’s cases. After Martin stopped paying for the work, Lyons filed a complaint in the County Court for the First Judicial District of Hinds County alleging breach of contract and claiming $14,543.19 owed on open account. The county court awarded Lyons $14,543.19 in damages and $4,847.73 in attorney’s fees. Martin appealed to circuit court which reversed the county court judgment on the basis that the agreement between the law firms was an oral contract, not an open account, such that attorney’s fees should not have been awarded. Lyons appeals. |
| Summary of Opinion Analysis: | Issue 1: Jurisdiction Lyons argues that filing an appeal bond in an appeal from county court is required by section 11-51-79, and that the circuit court does not have jurisdiction over a matter in which the appellant has failed to post the required bond. Lyons maintains that the record on appeal does not reflect that Martin filed any bond, therefore, the circuit court did not have subject matter jurisdiction, and the appeal should have been dismissed. According to section 11-51-79, a party seeking to appeal a county court judgment must do so within thirty days of the entry of the judgment. Within that time, the appellant must file notice of the appeal and post a bond. The parties in this case use the term “appeal bond” interchangeably for “supersedeas bond” and “cost bond.” The bond required to perfect an appeal is a cost bond, which is sometimes referred to as an appeal bond. The bond required to obtain a stay of execution of a judgment while the judgment is being appealed is a supersedeas bond, also referred to as an appeal bond. M.R.A.P. 8 addresses supersedeas bonds. An appellant is entitled to a stay of execution of a judgment pending appeal only if the appellant provides “a supersedeas bond, payable to the opposite party . . . of 125 percent of the amount of the judgment appealed from, conditioned that the appellant will satisfy the judgment complained of and also such final judgment as may be made in the case.” The appellant then would file an “appeal bond with supersedeas” in the court from which the appellant appealed. Without this, the perfected appeal would proceed without a stay. M.R.A.P. 11 is the “cost bond” rule, and it provides that the “appellant shall estimate the cost of preparation of the record on appeal”and pay that cost to the court clerk. The appellant must also file a Rule 11 certificate of compliance showing that the cost has been paid. The rules and statutes do not provide that a supersedeas bond is a requirement of appeal; rather, it is a requirement of receiving a supersedeas writ and a stay of the proceedings. However, the cost bond, or payment of the cost of preparing the record, is a statutory requirement of appeal. Statutory bond requirements are jurisdictional issues. Failure to post an appeal bond (being the cost bond required by section 11-51-79) within the time permitted by statute results in the circuit court’s lack of appellate jurisdiction. Thus, a cost bond (or evidence of payment of the cost of preparing the record) must always be filed to perfect an appeal properly, but where the statute does not require a supersedeas bond, it is not a prerequisite for acquiring appellate jurisdiction. The certificate of compliance required under M.R.A.P. 11(b)(1) indicates that Martin paid $450 to the clerk of the county court to cover the cost of preparing the record. The county court’s order denying Martin’s motion for a new trial was entered February 4, 2010. Martin filed a notice of appeal the same day. Martin gave $450 cash to the court clerk for the estimated cost of preparing the record, and he filed a Rule 11 certificate of compliance on February 22, 2010, which evidenced the satisfaction of the statutory bond requirement. A literal “bond” was not needed, because the cost bond was satisfied in its entirety by the cash payment. Martin’s notice of appeal and evidence of satisfaction of the cost bond were filed within thirty days as required by section 11-51-79, and Martin’s appeal was properly perfected. Thus, the circuit court had appellate jurisdiction over the matter. Issue 2: Attorney’s fees Attorney’s fees can be awarded where statutory authority or a contractual provision provides for an award of attorney’s fees or where punitive damages are also awarded. Lyons argues that, although the county court did not set forth a basis for the award of attorney’s fees, it had several grounds for the award. Lyons claims that he proved that the matter dealt with an open account, so attorney’s fees were permitted under section 11-53-81. Lyons also claims that the attorney’s fees could have been a sanction, which would have been warranted under M.R.C.P. 37 based on Martin’s contempt of court and his denial of matters in responses to requests for admission that were later proven at trial. The evidence in this case shows that Lyons and Martin had one meeting in May of 2006 to discuss Lyons providing certain legal work for Martin on several cases. They agreed on a rate of $100 per hour for Lyons’s work. Martin employed Lyons to work on eight cases from May 2006 through August 2007. There is no indication that the parties discussed different terms for the work performed on each case. Lyons billed Martin on a regular basis, and Martin submitted payment after his receipt of each invoice. This conduct is sufficient evidence of an open account. Suits on open account are always contractual matters, because an underlying contract must exist for the open account to exist. It is well-established that an open account is an unwritten contract. Martin argues that this could not have been an open account because there was no final and certain agreement on price. Martin’s assertion is contrary to the evidence, which indicates that the parties agreed on a price of $100 per hour for Lyons’s services. Under section 11-53-81, a person who prevails in a suit for payment on an open account is entitled to reasonable attorney’s fees. Lyons submitted a detailed billing statement indicating that his attorney’s fees in this matter totaled $9,906.85. The award of attorney’s fees in the amount of $4,847.73 was for approximately half of the amount of attorney’s fees proven by Lyons. The award of attorney’s fees was reasonable and supported by credible evidence. |
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