Breland v. Harrison Cnty. Sch. Bd.

96 So.3d 61

Melinda BRELAND, Appellant

v.HARRISON COUNTY SCHOOL BOARD, Appellee.

No. 2011–CA–00871–COA.

Court of Appeals of Mississippi.

Aug. 14, 2012.

Thomas E. Payne, Billie Jo White, Starkville, attorneys for appellant.

Albert Lionel Necaise, Gulfport, attorney for appellee.

Before LEE, C.J., ROBERTS and CARLTON, JJ.

CARLTON, J., for the Court:

¶ 1. On May 23, 2011, the Harrison County Chancery Court granted a motion to dismiss filed by the Harrison County School Board (HCSB). Melinda Breland appeals from the order of dismissal and raises the following assignments of error: (1) whether the chancellor erred in granting the HCSB's motion to dismiss on the ground that Breland failed to timely appeal her case to the chancery court after receiving notice of the school board's final decision terminating her employment; and (2) whether the chancellor erred in granting the HCSB's motion to dismiss on the grounds that Breland failed to perfect her appeal by not paying a $200 bond, when the court dismissed the action prior to a hearing on the merits and without allowing Breland the opportunity to perfect her appeal by paying the minimal bond, constituting a dismissal on form rather than substance.¹ Finding no error, we affirm.

FACTS

¶ 2. Breland worked as a public school teacher at West Wortham Elementary School in the Harrison County School District (HCSD). On May 21, 2010, Heather Blenden, the principal of West Wortham Elementary School, recommended to Henry Arledge, the Superintendent of Education for the HCSD, that Breland be terminated due to her history of verbal and physical violence against children in a setting in which Breland was charged with assuming the safety and well-being of the children. Thereafter, the HCSD provided Breland with notice of her termination with an effective date of May 27, 2010. In accordance with Mississippi Code Annotated section 37–9–111 (Rev.2007), Breland requested a termination hearing. The termination hearing commenced on September 21, 2010, before a hearing officer.

¶ 3. The HCSB subsequently reviewed the September 21, 2010 hearing transcript and heard closing argument from Breland's attorney, Thomas E. Payne, on December 6, 2010. On December 12, 2010, the HCSB voted to uphold the recommendations of the superintendent to not continue Breland's employment with the HCSD.

¶ 4. During oral arguments before the chancery court, Albert L. Necaise, attorney for the HCSB, informed the chancellor that on December 17, 2010, a letter dated December 16, 2010, was sent to Payne by U.S. Mail and facsimile, notifying Payne of the decision of the HCSB.²

¶ 5. On January 10, 2011, Breland filed a notice of appeal, which was dated January 7, 2011, with the Harrison County Chancery Clerk. Breland, however, failed to file the required bond under Mississippi Code Annotated section 37–9–113(2) (Rev.2007). Thereafter, on April 15, 2011, the HCSB moved to dismiss Breland's appeal as untimely and for failure to post the required bond under section 37–9–113(2).

¶ 6. The Harrison County Chancery Court held a hearing on April 21, 2011. At the hearing, the chancellor heard oral arguments from Necaise on the HCSB's motion to dismiss. Payne, Breland's attorney, informed the court that he had not received the HCSB's motion to dismiss, and having no notice of the pending motion, he requested time after April 21, 2011, to respond to the motion. The chancellor noted that Breland failed to file a bond as statutorily required and that the appeal was filed more than twenty days from receipt of the HCSB's decision, but he allowed Breland's request for a continuance. The chancellor gave Breland “until Friday next week at 5:00 to file some kind of response to it.” The chancellor also added that he was inclined to grant the motion to dismiss “on my own motion,” but gave Breland the additional time to respond.

¶ 7. On May 2, 2011, Breland filed a response to the motion to dismiss, in which she contended that she timely and properly perfected her appeal. In her response, Breland stated:

A review of the [c]alendar and following the requirements of [Mississippi Rule of Civil Procedure] 6(e)[,] the [p]laintiff's appeal was timely filed. The [d]efendant's notification came by mail and was dated December 16, 2010. Pursuant to [Rule] 6(e)[,] when a notification is served by mail[,] three days must be added to the computation.... The date the letter is sent is not counted in the computation[;] therefore[,] the twenty day time period begins on December 17, 2010. Counting from December 17, including intermittent weekend days[,] would mark the 20th consecutive calendar day on January 5th, 2011. Once the three days are added pursuant to [Rule] 6(e)[,] the deadline for filing is extended to January 8th, 2011. Since January 8th, 2011[,] falls on a Saturday[,] the Rule extends the filing deadline to the next business day which would have been January 10, 2011.... The appeal notice was mailed on January 7, 2011[,] and was received and stamp filed on January 10, 2011. The appeal notice arrived on the twentieth day and was not, untimely, as alleged in [d]efendant's motion.

Breland also claimed that the filing of the $200 bond could be accomplished at a “later date.”

¶ 8. On May 23, 2011, the chancellor entered an order granting the HCSB's motion to dismiss Breland's appeal. The chancellor found that the chancery court lacked jurisdiction because the appeal was not timely filed and Breland failed to file the bond in the time and manner required. Breland now appeals.

STANDARD OF REVIEW

¶ 9. When reviewing a trial court's grant or denial of a motion to dismiss, this Court employs a de novo standard of review. Farmer v. State of Miss. Dep't of Pub. Safety, 907 So.2d 981, 984 (¶ 8) (Miss.Ct.App.2005) (citing Spencer v. State, 880 So.2d 1044, 1045 (¶ 6) (Miss.2004)). Further, jurisdictional matters are reviewed de novo. R.A.S. Jr. v. S.S., 66 So.3d 1257, 1259 (¶ 10) (Miss.Ct.App.2011) (citing Calvert v. Griggs, 992 So.2d 627, 631 (¶ 9) (Miss.2008)).

DISCUSSION

Whether Breland Failed to Perfect her Appeal by Not Complying with the Timely Filing and Bond Requirements of Mississippi Code Annotated section 37–9–113(2).

¶ 10. Breland argues that the chancery court erred in granting the HCSB's motion to dismiss. Breland claims that she filed her notice of appeal within the time period prescribed by statutory law, when considered in conjunction with the applicable rules of procedure, and that her failure to file the very minimal $200 bond was a minor procedural deficiency. Additionally, Breland asserts that the HCSB's motion to dismiss was untimely filed and was not properly noticed for hearing.³ Breland also claims that the motion to dismiss was granted based on unsupported and unsworn statements by the HCSB's attorney. She claims there was insufficient evidence to prove that she received notice by facsimile at the office of her attorney or notice via U.S. mail. Finally, Breland argues that the HCSB failed to provide her with prior notice of the hearing on the motion to dismiss, and she had no opportunity to provide any verbal response to the extensive arguments before the court by the HCSB prior to dismissal of the appeal without a hearing.

¶ 11. After reviewing the record, we find that Breland failed to timely file and perfect her appeal according to the statutory requirements of section 37–9–113(2). Section 37–9–113(2) clearly states:

(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 than two hundred dollars ($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.

(Emphasis added). While Breland attempts to find an extra three days and a safe harbor under Rule 6 of the Mississippi Rules of Civil Procedure for perfecting her appeal,⁴ we find that the Mississippi Supreme Court has repeatedly held that the timely filing of an appeal is jurisdictional. See Calvert, 992 So.2d at 631 (¶ 9) (“A timely-filed notice of appeal is a jurisdictional prerequisite to invoking [the appellate court's] review [.]”); In re Estate of Ware, 573 So.2d 773, 774 (Miss.1990) (recognizing that the time for perfecting an appeal is mandatory and jurisdictional). Further, we recognize that the Mississippi Rules of Civil Procedure do not apply to appeals from administrative agencies, “but only to original actions that are ‘commenced by filing a complaint[.]’ ” 5K Farms, Inc. v. Miss. Dept. of Revenue, 94 So.3d 221, 228 (¶ 24) (Miss.2012) (quoting M.R.C.P. 3(a)); see also Brown v. Miss. Dep't of Employment Sec., 29 So.3d 766, 770 (¶ 11) (Miss.2010) (“[B]ecause [the Mississippi Employment Security Commission] is not a circuit, chancery, or county court, ‘the Mississippi Rules of Civil Procedure are not applicable to its administrative hearings or appeals.’ ”) (citation omitted); Hodgins v. Philadelphia Pub. Sch. Dist., 966 So.2d 1279, 1281 (¶ 6) (Miss.Ct.App.2007) (recognizing the school board as an administrative agency). As stated above, section 37–9–113(2)...