Nicholas Thompson v. AAA Cooper Transportation

• Court: Court of Appeals of Mississippi
• Decided: August 9, 2022
• Docket: 2021-CP-00658-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-CP-00658-COA

NICHOLAS THOMPSON APPELLANT

v.

AAA COOPER TRANSPORTATION APPELLEE

DATE OF JUDGMENT: 05/27/2021 TRIAL JUDGE: HON. GERALD W. CHATHAM SR. COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: NICHOLAS THOMPSON (PRO SE) ATTORNEY FOR APPELLEE: CHARLES PATTON HENLEY JR. NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE DISPOSITION: AFFIRMED - 08/09/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE CARLTON, P.J., McDONALD AND EMFINGER, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. This appeal arises from a circuit court’s judgment dismissing an appeal from county

court for lack of appellate jurisdiction. The DeSoto County Circuit Court found that

Nicholas Thompson failed to file his notice of appeal or pay the cost bond within the time

provided. The circuit court therefore held that because Thompson’s appeal was not

perfected, the circuit court lacked appellate jurisdiction.

¶2. After our review, we find that the circuit court properly dismissed Thompson’s appeal

for lack of appellate jurisdiction. We therefore affirm the circuit court’s judgment.

FACTS

¶3. AAA Cooper Transportation filed a complaint against Thompson seeking damages from an automobile accident. The record indicates that on January 6, 2020, the DeSoto

County Court entered a default judgment in favor of AAA Cooper Transportation based on

Thompson’s failure to plead or otherwise defend the action after he was duly served with

process.

¶4. Over a year later, on January 20, 2021, Thompson filed his notice of appeal in the

DeSoto County Circuit Court.1 AAA Cooper Transportation filed a motion to dismiss

Thompson’s appeal, arguing that Thompson’s appeal was untimely filed and that Thompson

had failed to pay the cost bond, address the appeal to the proper court, include a certificate

of service, have the record transmitted, or state a sufficient reason why Thompson would be

entitled to an appeal on the merits.

¶5. After a hearing on the matter, the circuit court entered an order dismissing

Thompson’s appeal. The circuit court found that Thompson failed to file his appeal within

thirty days from the date the county court’s judgment was entered and that Thompson failed

to post the cost bond. Accordingly, the circuit court held that it lacked jurisdiction over

Thompson’s appeal.

1 We recognize that “when a default judgment has been entered, a party must seek relief under Rule 60(b) [of the Mississippi Rules of Civil Procedure] by filing a motion to set aside the default judgment.” Tucker v. Williams, 198 So. 3d 299, 309 (¶22) (Miss. 2016) (citing M.R.C.P. 55(c)). Based on what appears in the record before us, Thompson did not file a motion to set aside the default judgment. In his notice of appeal to the circuit court, Thomas did not indicate that he wanted the default judgment set aside, nor did Thompson explain why he failed to plead or otherwise defend the action in county court. Rather, Thompson raised arguments addressing the underlying merits of AAA Cooper Transportation’s claim against him.

2 ¶6. Thompson now appeals.

STANDARD OF REVIEW

¶7. When reviewing jurisdiction questions, we apply a de novo standard of review. Shope

v. Winkelmann, 328 So. 3d 641, 643 (¶11) (Miss. 2021).

DISCUSSION

¶8. The Mississippi Supreme Court has explained that “[a]n appeal from county court to

circuit court is a two-step process involving the timely filing of the notice of appeal and the

timely payment of costs, as governed by Mississippi Code [Annotated] [s]ection 11-51-79

[(Rev. 2019)] and Uniform Civil Rule of Circuit and County Court Practice 5.04.” Id. at

(¶13). Section 11-51-79 states that “[a]ppeals from the county court shall be taken and bond

given within thirty (30) days from the date of the entry of the final judgment or decree on the

minutes of the court[.]” Miss. Code Ann. § 11-51-79. Additionally, Rule 5.04 provides that

“[i]n all appeals, whether on the record or by trial de novo, the notice of appeal and payment

of costs must be simultaneously filed and paid with the circuit court clerk within thirty (30)

days of the entry of the order or judgment being appealed.” UCRCCC 5.04. Rule 5.04

further states, “The timely filing of this written notice and payment of costs will perfect the

appeal.” Id.

¶9. In the case before us, the circuit court dismissed Thompson’s appeal for lack of

jurisdiction after finding that Thompson failed to file his notice of appeal within thirty days

from the date of the entry of the county court’s judgment and that Thompson also failed to

3 pay his cost bond. Specifically, the circuit court found that Thompson filed his notice of

appeal over a year from the date of the entry of the county court’s judgment. “[I]f the notice

of appeal is not timely filed, the appellate court simply does not have jurisdiction.” Smith v.

Parkerson Lumber Inc., 890 So. 2d 832, 834 (¶12) (Miss. 2003); accord M.R.A.P. 2(a)(1)

(“An appeal shall be dismissed if the notice of appeal was not timely filed pursuant to

[Mississippi] Rules [of Appellate Procedure] 4 or 5.”). Similarly, “if the appellant fails to

timely pay his cost bond, his appeal is not perfected, and the circuit court has no choice but

to dismiss the case for lack of appellate jurisdiction.” Keller v. State, 330 So. 3d 788, 791

(¶4) (Miss. Ct. App. 2021) (citing Gibson v. Bell, 312 So. 3d 318, 324 (¶25) (Miss. 2020)).

¶10. In his appellate brief, Thompson does not dispute that he failed to comply with the

requirements of section 11-51-79 and Rule 5.04. Thompson also does not address the circuit

court’s order dismissing his appeal for lack of jurisdiction. Although the county court’s order

granting a default judgment in favor of AAA Cooper Transportation does not appear in the

record before us, the circuit court’s order of dismissal provides the date of the entry of the

default judgment, as well as the cause number. “The burden rests upon the appellant to

provide a record that contains all information needed for an understanding of matters relied

upon for reversal on appeal.” Wells v. Price, 102 So. 3d 1250, 1259 (¶30) (Miss. Ct. App.

2012). “Even when our review is de novo, the trial court’s judgment is always presumed to

be correct, and the burden falls upon the appellant to show reversible error. If the appellant

fails to demonstrate reversible error, the judgment must be affirmed.” Satterfield v. State,

4 158 So. 3d 380, 382 (¶4) (Miss. Ct. App. 2015) (citation omitted).

¶11. We also find that Thompson’s appellate brief “does not comply with Rule 28(a) of the

Mississippi Rules of Appellate Procedure in several material respects.” Fair v. Miss. Dep’t

of Emp. Sec., 122 So. 3d 165, 166 (¶5) (Miss. Ct. App. 2013). Specifically, Thompson’s

brief fails to contain a certificate of interested persons, tables, statement of assignment,

statement of the case, or summary of the argument. “[T]his noncompliance alone serves as

a procedural bar to our review.” Id. Thompson also fails to cite any caselaw. See M.R.A.P.

28(a)(7) (The argument section of the appellant’s brief “shall contain the contentions of

appellant with respect to the issues presented, and the reasons for those contentions, with

citations to the authorities, statutes, and parts of the record relied on.”). “‘It is the duty of an

appellant to provide authority in support of an assignment of error,’ and the failure to do so

is considered abandonment of the issue; thereby making the issue procedurally barred for

appellate review.” Flowers v. Boolos (In re Est. of Smith), 204 So. 3d 291, 313 (¶49) (Miss.

2016) (quoting McNeil v. Hester, 753 So. 2d 1057, 1075 (¶65) (Miss. 2000)).

¶12. After our review, we find that Thompson failed to timely file his notice of appeal and

pay the cost bond. Accordingly, his appeal was not perfected, and the circuit court lacked

appellate jurisdiction. We therefore find that the circuit court correctly dismissed

Thompson’s appeal for lack of jurisdiction.

¶13. AFFIRMED.

BARNES, C.J., WILSON, P.J., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.