Broady v. MS. STATE BD. OF ARCHITECTURE

936 So. 2d 441, 2006 Miss. App. LEXIS 593, 2006 WL 2348112
CourtCourt of Appeals of Mississippi
DecidedAugust 15, 2006
Docket2005-CA-00460-COA
StatusPublished
Cited by2 cases

This text of 936 So. 2d 441 (Broady v. MS. STATE BD. OF ARCHITECTURE) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Broady v. MS. STATE BD. OF ARCHITECTURE, 936 So. 2d 441, 2006 Miss. App. LEXIS 593, 2006 WL 2348112 (Mich. Ct. App. 2006).

Opinion

936 So.2d 441 (2006)

Raymond BROADY, Appellant
v.
MISSISSIPPI STATE BOARD OF ARCHITECTURE, Appellee.

No. 2005-CA-00460-COA.

Court of Appeals of Mississippi.

August 15, 2006.

*442 Ramel Lemar Cotton, Jackson, attorney for appellant.

Office of the Attorney General by Woody Woodcock, Jackie Tatum, attorney for appellee.

Before KING, C.J., GRIFFIS and BARNES, JJ.

KING, C.J., for the Court.

¶ 1. By order dated September 3, 2004, the Mississippi State Board of Architecture (Board) found that Raymond Broady had unlawfully engaged in the practice of architecture in this state. The Board found that Broady had (1) executed two contracts for architectural services while his license was inactive, and (2) used a Mississippi address in a transaction while a non-resident architect. As a result of these findings, the Board suspended Raymond Broady's license to practice architecture in Mississippi, and ordered him to pay a fine of $10,000. Broady received this order by certified mail on September 16, 2004. Additionally, Broady was notified of his right to appeal the Board's actions to the Chancery Court of Hinds County. Pursuant to Mississippi Code Annotated Section 73-1-31 (Rev.2004), Broady was notified that he had thirty days from the receipt of the order to file his notice of appeal and to post a $500 appeal bond with the Hinds County Chancery Clerk. On October 11, 2004, Broady filed his notice of appeal without the appeal bond. Broady tendered a check for $500.00, dated October 15, 2004, to the Hinds County Chancery Clerk on October 18, 2004, thirty-two days after his receipt of the Board's order. On December 1, 2004, the Board moved to dismiss Broady's appeal as being untimely. The motion cited his failure to comply with the statute requiring that both the notice of appeal and the appeal bond be filed within thirty days after receipt of notice from the Board. Broady filed a response to the Board's motion on December 10, 2004, and a motion for an extension of time to file an appeal on December 16, 2004. The chancery court heard the Board's motion to dismiss on February 22, 2005 and issued a bench opinion which granted the motion. A formal order of dismissal was entered on February 23, 2005. Aggrieved by the chancellor's actions, Broady filed a notice of appeal on March 7, 2005. Finding that Broady's appeal to the Hinds County Chancery Court was timely filed, this Court reverses that court's dismissal of Broady's appeal, and remand it to the Hinds County Chancery Court for further action.

*443 DISCUSSION

¶ 2. The issue before this Court is whether Broady timely perfected his appeal of the Board's actions to the Hinds County Chancery Court. However, to resolve that issue, this Court must determine the proper manner to compute the allowable time to perfect an appeal. That question is governed by Rule 6(a) of the Mississippi Rules of Civil Procedure, which reads, in part:

In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, as defined by statute, or any other day when the courthouse or the clerk's office is in fact closed, whether with or without legal authority, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, a legal holiday, or any other day when the courthouse or the clerk's office is closed....

¶ 3. Pursuant to M.R.C.P. 6(a), the time for Broady to perfect his appeal actually commenced on September 17, 2004, and under normal circumstances would have expired on October 16, 2004. However, in reviewing its 2004 calendar, this Court has determined that October 16, 2004 fell on a Saturday. Because the last day for Broady to perfect his appeal was Saturday, October 16, 2004, a day when the chancery clerk's office was closed, pursuant to M.R.C.P. 6(a), the deadline was extended to the next regular business day, October 18, 2004. This is also the date upon which the record shows the $500.00 bond was noted as received and filed by the Hinds County Chancery Clerk.

¶ 4. Rule 6 of the Mississippi Rules of Civil Procedure is in all material respects identical to our own appellate Rule 26(a). This Court addressed this issue under Rule 26(a) of the Mississippi Rules of Appellate Procedure in Redmond v. Mississippi Dep't of Corrections, 910 So.2d 1211 (Miss.Ct.App.2005). In Redmond, this Court stated, "Redmond had thirty days from entry of the order in which to file a notice of appeal. As the thirtieth day fell on Saturday, February 22, and under Rule 26(a) of the Rules of Appellate Procedure, Redmond had until Monday, February 24 (not a legal holiday) to file his notice." Id. at 1211-12(¶ 3). This Court sees no reason to ignore the application of the identical rule to the trial courts. Therefore, this Court finds that Broady's appeal was in fact timely filed.

¶ 5. The concurring opinion notes that it reaches the same conclusion as the majority, but in a different fashion.

¶ 6. The concurring opinion says that the majority opinion incorrectly applies the Mississippi Rules of Civil Procedure to an administrative procedure. It attempts to support this statement by citation to Miss. Employment Sec. Comm. v. Parker, 903 So.2d 42 (Miss 2005). That citation does not seem to support the position argued by the concurrence. In Parker, the issue was procedural compliance for appeal to, rather than from, an administrative agency. It is at that point which the supreme court said it was inappropriate to apply the rules of civil procedure to administrative hearings or appeals. Id. at 45(¶ 8).

¶ 7. In the case sub judice, the appeal is to the chancery court from the administrative agency. It is therefore to proceedings in the chancery court that we have applied the rules of civil procedure. Specifically, the rules of civil procedure are applied to determine the jurisdiction of the chancery court, as opposed to some action by the *444 administrative agency. Such an application is in fact consistent with Rule 1 of Mississippi Rules of Civil Procedure, which provides:

These rules govern procedure in the circuit courts, chancery courts, and county courts in all suits of a civil nature, whether cognizable as cases at law or in equity, subject to certain limitations enumerated in Rule 81; however, even those enumerated proceedings are still subject to these rules where no statute applicable to the proceedings provides otherwise or sets forth procedures inconsistent with these rules. These rules shall be construed to secure the just, speedy, and inexpensive determination of every action.

¶ 8. As a part of its circumnavigation in this matter, the concurrence holds that Broady's time for appeal started on September 4, 2004, the day after the order was dated rather than on September 17, 2004, the day after receipt of the notice by Broady. That the time for filing an appeal began on September 4, 2004, is an issue raised only by the concurrence, and not by either party. Under Mississippi Rule of Appellate Procedure 28(a)(3), this Court does not address issues not raised by the parties, except as plain error. If the concurrence correctly finds that issue as plain error, then it must likewise find a lack of jurisdiction in the chancery court and in this court. The remedy for lack of jurisdiction is dismissal of the appeal.

¶ 9.

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Bluebook (online)
936 So. 2d 441, 2006 Miss. App. LEXIS 593, 2006 WL 2348112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broady-v-ms-state-bd-of-architecture-missctapp-2006.