No Bond = No Appeal

March 21, 2016 § Leave a comment

In case you need a reminder that statutory appeals require that you follow the letter of the law in every particular, or suffer dismissal, the case of Lamberth v. S. Panola School District will serve the purpose quite nicely.

Joseph Eugene Lamberth was terminated from his Assistant Principal job with the South Panola School District on February 4, 2014. He appealed to chancery court per MCA 37-9-113(1)-(2), by filing a petition. He did not post a bond, however. The school district filed a motion to dismiss for failure to post the bond. Lamberth responded that he did not know of the requirement to file a bond. The chancellor dismissed the appeal, and Lamberth appealed the dismissal.

In a decision handed down February 16, 2016, the COA affirmed. Judge Ishee spelled out the reasoning:

¶5. The grant or denial of a motion to dismiss is reviewed de novo. Breland v. Harrison Cty. Sch. Bd., 96 So. 3d 61, 64 (¶9) (Miss. Ct. App. 2012) (citations omitted). The applicable statute for appeals of school-board actions states the following:

(1) Any employee aggrieved by a final decision of the school board is entitled to judicial review thereof, as hereinafter provided.

(2) An appeal may be taken by such employee to the chancery court of the judicial district in which the school district is located, by filing a petition with the clerk of that court and executing and filing bond payable to the school board with sufficient sureties, in the penalty of not less that (t)wo (h)undred (d)ollars ($200.00), conditioned upon the payment of all of the costs of appeal, within twenty (20) days of the receipt of the final decision of the board.

Miss. Code Ann. § 37-9-113(1)-(2) (Rev. 2013).

¶6. As seen above, the statute clearly outlines the need for the filing of a $200 “bond payable to the school board with sufficient sureties.” Id. We have previously addressed this exact issue of whether the failure of a movant to file the $200 bond warranted dismissal of the appeal. In Breland, we held: “Breland’s failure to file a timely bond is jurisdictional and is fatal to her appeal. This Court repeatedly has held that statutory appeal bonds are jurisdictional – that is, they relate to a court’s appellate jurisdiction.” Breland, 96 So. 3d at 65-66 (¶12) (quoting 5K Farms Inc. v. Miss. Dep’t of Revenue, 94 So. 3d 221, 227 (¶23) (Miss. 2012)). That said, the Mississippi Supreme Court “has recognized that a failure to meet the statutory requirements (of a bond) may be excused by extenuating circumstances.” Miss. State Pers. Bd. v. Armstrong, 454 So. 2d 912, 915 (Miss. 1984) (citations omitted). However, as was the case in Armstrong, we fail to find any extenuating circumstances that would warrant overlooking Lamberth’s failure to pay the statutorily required bond. Lamberth’s excuse is merely that he was not aware that a bond needed to be filed, despite the distinct and unambiguous statutory language requiring the bond payment. Citing a long-held tenet of law, we remind Lamberth that “ignorance of the law excuses no one.” Hoskins v. Howard, 214 Miss. 481, 497, 59 So. 2d 263, 269 (1952). Hence, the chancery court properly dismissed Lamberth’s appeal due to lack of jurisdiction, and we affirm the dismissal.

The COA went on to reject Mr. Lamberth’s challenge to the trial court’s dismissal with prejudice.

A few points:

  • If you’re going to take on representation of someone in a statutory appeal case, a good starting point is to read the statute. Let me reiterate that: read the statute. Everything you need to know to represent your client is there: the court with jurisdiction; the time limit to appeal; what you need to do (e.g., file a bond) to perfect your appeal; the basis for an appeal; and anything else pertinent to your representation is right there. And while you have your nose stuck in the book, peruse the annotations.
  • My ancient Seventh New Collegiate Dictionary defines “extenuate” as “to lessen or try to lessen the seriousness or extent by making partial excuses: mitigate.” If you’re going to claim extenuating circumstances, try to make sure that they have some substance, unlike that offered by Mr. Lamberth.
  • It’s nice to have a case citation to go along with the old “ignorance of the law is no excuse” saw. I have a feeling I may find a use for that case somewhere along the line.

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