IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI BABY O’S RESTAURANT, INC. d/b/a DANNY’S DOWNTOWN, DANIEL D. OWENS, d/b/a DANNY’S DOWNTOWN, PAT OWENS, d/b/a DANNY’S DOWNTOWN and JOHN DOES #1-10

DEFENDANTS/MOVANTS

v. No. 2016-M-1037

CHRISTOPHER GOODMAN RESPONDENT

MOTION TO DISMISS MOVANTS’ MOTION TO STAY WRITS OF EXECUTION AND GARNISHMENT

Christopher O. Goodman (“Mr. Goodman”), files this Motion to Dismiss the

Motion to Stay Writs of Execution and Garnishment (the “Motion to Stay”) filed by

Defendants/Movants Baby O’s Restaurant, Inc. d/b/a Danny’s Downtown, Daniel D.

Owens, d/b/a Danny’s Downtown, Pat Owens, d/b/a Danny’s Downtown and John

Does #1-10 (collectively, “Danny’s Downtown” or the “Defendants”). Alternatively, to

the extent (if any) that this Court declines to grant Mr. Goodman’s Motion to Dismiss,

then Mr. Goodman respectfully requests that this Motion to Dismiss be construed as

Mr. Goodman’s response in opposition to the Motion to Stay, as contemplated by this

Court’s Order entered herein on July 21, 2016, and that the Motion to Stay be denied.

Introduction

No matter which way this Court views the motion filed herein by Danny’s

Downtown, it is improper, and should be dismissed outright by this Court, or otherwise

denied.

If the motion is viewed as a motion to stay pursuant to Miss. R. App. P. 8(c), as it

is referred to by the Defendants, the motion should be dismissed, or otherwise denied,

E-Filed Document Jul 22 2016 13:10:29 2016-M-01037 Pages: 15

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because it quite plainly fails – on it’s face – to satisfy even the threshold procedural

requirements for such a motion. Specifically, and as further discussed below, the

Defendants’ motion has failed to attach any of the required documents specified in the

rule, has failed to demonstrate that an application for the relief sought herein has been

denied by or is not practicable from the trial court, and while the Defendants

unequivocally admit that the subject facts are in dispute (see Motion to Stay, p. 2), the

motion fails to attach any affidavits or sworn statements as required by the rule.

Furthermore, Danny’s Downtown has filed no motion seeking the relief sought

herein in either the trial court (the County Court of Hinds County, Mississippi) or the

court to which Danny’s Downtown purports to have intended to appeal from the

Judgment rendered in the trial court (the Circuit Court of Hinds County, Mississippi).

The provisions of Miss. R. App. P. 8(c) quite plainly require that such relief be sought in

the first instance in the trial court, and Danny’s Downtown has failed to file any such

motion.1

Finally, Danny’s Downtown’s motion revolves around it’s assertions that the

relief requested in it’s motion is necessary in order to preserve it’s alleged “appeal” to

this Court pursuant to Miss. R. App. P. 3 and 4, yet Danny’s Downtown has not now,

nor ever, noticed any appeal to this Court. Rather, the notice of appeal filed by the

Defendants over two (2) years ago purports to appeal to the Circuit Court of Hinds

County, not this Court, and, as noted above and discussed further below, the

Defendants failed to timely perfect that appeal to the Circuit Court, and have failed

1 See M.R.A.P. 8(c); see also M.R.A.P. 8, Official Comment (“All matters concerning stays are to be resolved

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entirely to pursue it. Because the Defendants have failed to perfect an appeal to any

court, they are not entitled to any stay of execution, and most certainly are not entitled

to such a stay from this Court.

Relevant Facts and Procedural History

1. On October 17, 2013, the County Court for the First Judicial District of

Hinds County, Mississippi (the “County Court”) rendered a Judgment (County Court

Dkt. # 29, the “Judgment”) in favor of Mr. Goodman and against Baby O’s Restaurant,

Inc. d/b/a Danny’s Downtown and Daniel D. Owens d/b/a Danny’s Downtown

(collectively, the “Judgment Debtors”) for (a) the sum of $150,000.00, plus (b) the “legal

rate of interest” from the date of the Judgment until paid in full.

2. The Defendants filed a Motion for Judgment Notwithstanding the Verdict, and

in the Alternative, Motion to Alter/Amend Judgment (County Court Dkt. # 30) on October

28, 2013, which the County Court denied by an Order (County Court Dkt. # 34) issued

on April 3, 2014.

3. The Judgment was enrolled on the judgment roll of Hinds County on

April 5, 2014.

4. The Defendants filed a Notice of Appeal to Circuit Court (County Court Dkt.

# 35, the “Notice of Appeal”) on May 5, 2014.

5. Nevertheless, the Defendants failed to timely remit the “payment of costs”

required by, inter alia, U.R.C.C.C. 5.04, and which is necessary to perfect an appeal to a

circuit court.2

2 See, e.g., U.R.C.C.C. 5.04 (“The timely filing of this written notice and payment of costs will perfect the appeal.” (emphasis added)).

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6. The Defendants further failed to “file the record with the court clerk or to

request the assistance of the court in compelling the same within thirty (30) days of the

filing of the written notice of appeal” as required by U.R.C.C.C. 5.05, which “may be

deemed an abandonment of the appeal” and constitute grounds for dismissal.3

7. Due to the Defendants’ failure to timely pay the costs required by

U.R.C.C.C. 5.04, on May 28, 2014, Mr. Goodman filed in the County Court a Motion to

Dismiss Appeal (County Court Dkt. # 36).

8. The Defendants failed to timely respond to the Motion to Dismiss Appeal

under U.R.C.C.C. 4.03.

9. After more than ten months passed without the Defendants taking any

steps to perfect their attempted appeal to the Circuit Court, Mr. Goodman obtained a

Writ of Execution on Judgment (County Court Dkt. # 37) on March 26, 2015.

10. The next day, the Defendants filed a Motion to Quash or Stay Writ of

Execution, to Set Hearing on Plaintiff’s Motion to Dismiss Appeal, or, in the Alternative, to

Deny or Dismiss Said Motion Without a Hearing and Docket the Appeal (County Court Dkt.

# 39, the “Motion to Quash”).

11. On August 17, 2015, the County Court entered an Order Denying Baby O’s

Restaurant, Inc. d/b/a Danny’s Downtown, Daniel D. Owens, d/b/a/ Danny’s Downtown, Pat

Owens, d/b/a/ Danny’s Downtown’s Motion to Waive or Reduce Supersedeas Bond and to

Quash Writ of Execution (County Court Dkt. # 46), which, inter alia, denied the

Defendants’ Motion to Quash and clarified that post-judgment interest on the Judgment

3 U.R.C.C.C. 5.05.

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was to accrue at the rate of 8% per annum. The Defendants thereafter filed a motion to

strike that Order on August 18, 2015 (County Court Dkt. # 47).

12. On December 7, 2015, a County Court court reporter filed and transmitted

a letter to the Defendants’ counsel (County Court Dkt. # 52) advising that she had “not

received a Notice of Appeal, Designation of Record or Certificate of Compliance from

your office,” advising that “in order to perfect the appeal and initiate the 30-day time of

completion,” the sum of $800 needed to be paid to the Clerk’s office, and requesting

confirmation whether the Defendants “have intentions of going forward with this

appeal.”4 There is no evidence in the record indicating that the Defendants paid the

required amounts or confirmed any intention to proceed with an appeal.

13. On June 29, 2016, the County Court entered an Order (County Court Dkt.

# 55) declaring that “[a]ll previous orders entered in this case are hereby affirmed,”

including but not limited to the Order entered by the Court on August 17, 2015.

14. On July 7, 2016, more than two years after initially filing their Notice of

Appeal, the Defendants filed a document captioned Appeal Bond to Circuit Court of Hinds

County with Supersedeas (County Court Dkt. # 57, the “Alleged Bond”), along with a

check in the amount of $187,500.00.5

15. The Alleged Bond is not a supersedeas bond compliant with M.R.A.P.

8(a). It neither identifies nor is executed by any surety,6 nor was the Alleged Bond

4 A copy of this letter is attached hereto as Exhibit “2.” 5 A copy of the Alleged Bond is attached hereto as Exhibit “3.” 6 See, e.g., City of Belzoni v. Johnson, 121 So. 3d 216, 220 (Miss. 2013) (“a party cannot act as a surety” for the purposes of M.R.A.P. 8(a)).

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approved by the Clerk of the County Court,7 both of which are required to constitute an

automatic stay of the Judgment under M.R.A.P. 8(a).

16. Mr. Goodman’s counsel thereafter advised the Defendants’ counsel that

the Alleged Bond did not operate as a stay of the Judgment under M.R.A.P. 8(a), and

that the Defendants would therefore need to seek an order from the County Court

staying execution pursuant to M.R.A.P. 8(b).

17. The Defendants did not seek an order from the County Court staying

execution pursuant to M.R.A.P. 8(b). Instead, without filing any motions and with no

notice to Mr. Goodman’s counsel whatsoever, the Defendants’ counsel apparently went

and appeared ex parte before Hon. Winston L. Kidd, a judge presiding in the Circuit

Court of Hinds County, and obtained an Order Staying Execution of Civil Judgment

(County Court Dkt. # 58, the “Order Staying Execution”).8

18. The Order Staying Execution purports to have been prepared and

presented by the Defendants’ counsel, and consists entirely of factual “findings” that

are unsupported by (and in some instances contradict) the County Court record.

19. Moreover, in seeking the Order Staying Execution on an ex parte basis

without notice from the Circuit Court, instead of the County Court (the trial court) in

which the case was pending, the Defendants failed to satisfy even one single requirement

of M.R.C.P. 65(b) governing the issuance of temporary restraining orders without notice

to the adverse party.

7 Id. at 222 (“Because the supersedeas bond posted by the defendants lacked any valid sureties, the circuit clerk did not have the power to approve it.”). 8 A copy of the Order Staying Execution is attached to the Defendants’ Motion to Stay as Exhibit “B.”

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20. On July 15, 2016, Judge Kidd sua sponte entered an Order Setting Aside

Order Staying Execution of Civil Judgment (County Court Dkt. # 59, the “Order Setting

Aside Stay Order”), finding that the Defendants had in fact “not perfected any appeal to

the Circuit Court” and that the Circuit Court therefore lacked jurisdiction over the suit.9

21. On July 18, 2016, Mr. Goodman obtained and served a Writ of Garnishment

(County Court Dkt. # 62) directed to the Clerk of the Circuit Court of Hinds County,

Mississippi concerning the $187,500.00 in funds the Defendants had deposited in

connection with their Alleged Bond, and thereby perfected his judgment lien upon such

funds in accordance with Mississippi law.

22. Also on July 18, 2016, the Sheriff of Hinds County, Mississippi executed

the Writ of Execution on Judgment that had been issued on March 26, 2015.

23. The Defendants filed their Motion to Stay herein on July 21, 2016.

Argument

The Motion to Stay is procedurally defective and should be dismissed because

the Defendants have failed to comply with the requirements of M.R.A.P. 8(c). But even

if the Motion to Stay is not dismissed, it nevertheless should be denied because the

Defendants have failed to perfect any appeal and are not entitled to a stay of the

Judgment.

I. The Motion to Stay Fails to Comply with M.R.A.P. 8(c) and Should Be Dismissed

9 A copy of the Order Setting Aside Order Staying Execution is attached to the Defendants’ Motion to Stay as Exhibit “C.”

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The Motion to Stay requests relief under M.R.A.P. 8(c), which provides a

mechanism for an appellant to seek a stay pending appeal from the Supreme Court.

However, M.R.A.P. 8(b)(1) provides:

Application for a stay of the judgment or the order of a trial court pending appeal or for approval or disapproval of a contested supersedeas bond or for an order suspending, modifying, restoring, or granting an injunction during the pendency of an appeal must ordinarily be made in the first instance to the trial court.10

If an appellant unsuccessfully requests a stay from the trial court, then the

appellant may request such a stay from the Supreme Court under M.R.C.P. 8(c),

but the motion shall show that the application to the trial court for relief sought is not practicable, or that the trial court has denied an application or has failed to afford the relief which the applicant has requested, with the reasons given by the trial court for its action. The motion shall also show the reasons for the relief requested and the facts relied upon and, if the facts are subject to dispute, the motion shall be supported by affidavits or other sworn statements. . . . [I]f the motion is opposed, [it] shall attach legible copies of the documents listed below. . . . If any listed document cannot be attached or delivered, a statement of the reason for the omission shall be substituted. The documents required are:

(1) the application to the trial court for a stay; (2) each brief or memorandum of authorities filed by a party to the

application in the trial court; (3) the opinion giving the reasons advanced by the trial court for

denying relief; (4) the trial court order or judgment denying relief.11

Thus, under M.R.A.P. 8(c), the Defendants’ Motion to Stay was required to

include:

• A demonstration that the trial court denied a request for a stay or that requesting a stay from the trial court is not practicable;

• Affidavits or sworn statements supporting all material disputed facts;

10 M.R.A.P. 8(b)(1) (emphasis added). 11 M.R.A.P. 8(c) (emphasis added).

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• A copy of the application for a stay to the trial court;

• A copy of the trial court’s reasons for denying the stay; and

• A copy of the trial court’s order denying relief.

The Defendants’ Motion to Stay satisfies none of these requirements, due in large

part to the Defendants’ failure to seek a stay in the first instance from the County Court

as required by M.R.A.P. 8(b). Even after the Defendants were advised by Mr.

Goodman’s counsel that the Alleged Bond failed to comply with any of the

requirements of M.R.A.P. 8(a) and that the Defendants would need to seek a stay from

the County Court under M.R.A.P. 8(b), the Defendants still failed to do so, and instead

improperly engaged in ex parte contact with a Circuit Court judge without notice to Mr.

Goodman or his counsel in an attempt to get a stay.

Moreover, the Defendants admit in their Motion to Stay that further “[a]ttempts

[were] made to obtain relief from the Circuit Court but Judge Winston Kidd has been

unavailable all week.”12 Mr. Goodman can only speculate as to what these “attempts”

entailed as neither he nor his counsel was given any notice of these “attempts,” but in

any event, these “attempts” did not include filing any applications or motions requesting

a stay, either from the County Court or from the Circuit Court.

Thus, the Defendants did not—and cannot—demonstrate that the trial court

denied a request for a stay, attach a copy of an application for stay to the trial court, or

include a copy of the trial court’s order denying relief or reasons for such denial. The

Defendants’ Motion to Stay further failed to include affidavits or sworn statements

attesting to any facts, contested or otherwise. 12 Motion to Stay at 3 (emphasis added).

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The Defendants’ Motion to Stay offers three reasons why they claim “it is not

practicable to seek a stay from the trial court.”13 First, the Defendants assert that “the

filing of her [sic] Notice of Appeal immediately divested the trial court of all jurisdiction

over substantive matters such as the writ of execution and the writ of garnishment.”14

But it is well settled that a trial court retains jurisdiction to enforce its judgment even

when an appeal has been perfected and is proceeding without supersedeas,15 as was the case

here. And as noted above, M.R.A.P. 8(b) requires an appellant to first seek a stay

pending appeal from the trial court, which clearly contemplates that trial courts retain

jurisdiction to entertain requests for such stays notwithstanding the pendency of an

appeal.

The Defendants’ second ground for their assertion that seeking relief from the

trial court was impracticable is that “the Orders both staying and withdrawing the stay

of the Execution came from the Courts that the Notice of Appeal is to go to once it is

assigned a case number and a judge.”16 The Defendants offer no further elaboration on

this perplexing statement, but Mr. Goodman respectfully submits that this single

sentence fails to articulate any reason why the Defendants could not have at least

attempted to file a Motion to Stay in the County Court as required by M.R.A.P. (b).

Third, the Defendants assert that due to Mr. Goodman’s enforcement efforts, “[i]t

was necessary to immediately seek appeal, and is not practical to both appeal to this

Court and continue to litigate this remaining issue in the trial court when it is

13 Id. 14 Id. 15 See, e.g., McNeil v. Hester, 753 So. 2d 1057, 1076 (Miss. 2000). 16 Motion to Stay at 3.

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intertwined with the relief to be requested on appeal.”17 But the Defendants have not

appealed to this Court, and there is no current litigation pending in the County Court. The

Defendants have failed to articulate any legitimate reason why the Motion to Stay could

not have been addressed to the County Court.

In short, the Motion to Stay meets none of the threshold requirements of M.R.A.P.

8(c) because the Defendants have failed to seek a stay from the County Court as

required by M.R.A.P. 8(b), and the Motion to Stay includes none of the elements

required by M.R.A.P. 8(c). Accordingly, the Motion to Stay is procedurally improper

and should be dismissed.

II. The Motion to Stay Should Also Be Dismissed Because This Court’s Appellate Jurisdiction Has Not Been Invoked

Although the Mississippi Rules of Appellate Procedure do not explicitly address

appeals from county court to circuit court, this Court has held that the Rules do apply to

such appeals.18 Nevertheless, some “translation” may be necessary when applying the

Rules of Appellate Procedure to an appeal to a circuit court. For example, in Van Meter

v. Alford, this Court noted that the reference in M.R.A.P. 2(a)(2) to “the clerk of the

Supreme Court” should be construed to mean the “circuit clerk” in the context of an

appeal from county court to circuit court.19

By the same token, Mr. Goodman respectfully submits that the provisions of

M.R.A.P. 8(c) concerning stay requests to the “Supreme Court” should be construed as

17 Id. 18See Adams v. A & C Entm’t, 6 So. 3d 1082, 1084 n.2 (Miss. 2009) (citing Van Meter v. Alford, 774 So. 2d 430, 432 (Miss. 2000)) (“The Rules of Appellate Procedure apply to appeals from county court to circuit court.”). 19 Alford, 774 So. 2d at 432.

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meaning the “circuit court” in the context of appeals from county court to circuit court.

Although the undersigned has not been able to locate any Mississippi authority directly

on point within the shortened response period, Mr. Goodman respectfully submits that

such a reading of the Rule is supported by the language of the first sentence of M.R.A.P.

8(c), which provides that “[a] motion for such relief may be made to the Supreme Court

(or to the Court of Appeals in cases assigned by the Supreme Court to the Court of Appeals) . . .

.”20 In other words, M.R.A.P. 8(c) contemplates a scenario where a stay pending appeal

may be sought from the court to which the underlying judgment has been appealed.

Thus, because there is no pending appeal to this Court, the Defendants’ Motion

to Stay is not properly addressed to this Court and should be dismissed.

III. Even if the Motion to Stay is Not Dismissed, it Should Be Denied Because the Defendants Have Not Perfected Any Appeal and are Not Entitled to a Stay

As set forth above, the Motion to Dismiss is improper and should be dismissed.

But even if it is not dismissed, it is without merit and should be denied because the

Circuit Court has found that no appeal has been perfected.

“Statutory bond requirements are jurisdictional issues. This Court repeatedly has

held that failure to post an appeal bond (being the cost bond required by Mississippi

Code Section 11-51-79) within the time permitted by statute results in the circuit court’s

lack of appellate jurisdiction.”21 Under Miss. Code Ann. § 11-51-79,

[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; provided, however, that the county judge may within said thirty (30) days, for good cause shown by affidavit, extend the

20 M.R.A.P. 8(c) (emphasis added). 21 T. Jackson Lyons & Assocs., P. A. v. Precious T. Martin, Sr. & Assocs., PLLC, 87 So. 3d 444, 451 (Miss. 2012) (internal citations omitted).

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time, but in no case exceeding sixty (60) days from the date of the said final judgment or decree.22

The County Court record demonstrates that the Defendants failed to pay the

costs required by U.R.C.C.C. 5.04 and Miss. Code Ann. § 11-51-79 within 30 days of the

entry of the final order appealed from, and further failed to request (much less obtain)

an extension from the County Court of the time within which to do so. Even if they had

requested an extension, the Defendants still would have been required to have paid the

required costs within sixty days at most. Instead, the Defendants did not remit any costs

until May 27, 2015,23 more than a year after the Notice of Appeal was filed.

As this Court has held (repeatedly) that timely payment of such costs is

jurisdictional and that the failure to timely pay such costs prevents the circuit court from

exercising appellate jurisdiction,24 Judge Kidd was correct in finding in his Order

Setting Aside Stay Order that the Defendants had “not perfected any appeal to the

Circuit Court” and that the Circuit Court therefore had no jurisdiction to enter the

Order Staying Execution.

Thus, the Defendants are not entitled to a stay pending appeal, because there is no

perfected appeal pending to justify such a stay. Moreover, the Defendants’ dilatory

conduct in failing to prosecute their purported appeal for over two years—except as a

means of frustrating Mr. Goodman’s attempts to enforce his Judgment—provides an

additional reason why the Motion to Stay should be denied.

22 Miss. Code Ann. § 11-51-79 (emphasis added). 23 See Certificate of Compliance with Rule 11(b)(1) (County Court Dkt. # 43) (Defendants’ attorney certifying on May 27, 2015 that he had “on this day deposited [$300] with the clerk” of the trial court), a copy of which is attached hereto as Exhibit “1.” 24 Lyons, 87 So. 3d at 451.

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Conclusion

In sum, the Motion to Stay should be dismissed because it fails to comply with

any of the material requirements of M.R.A.P. 8(c), and because it was improperly filed

in this Court even though there is no pending appeal to this Court. And even if the

Motion to Stay is not dismissed, it nevertheless should be denied because the

Defendants have not perfected any appeal. Instead, the Defendants have allowed their

unperfected appeal to languish for years, at at the expense of Mr. Goodman, who has

yet to be paid anything on account of the Judgment he was awarded nearly three years

ago.

THIS the 22nd day of July, 2016.

Respectfully submitted, CHRISTOPHER O. MR. GOODMAN By: /s/ Christopher H. Meredith Sarah Beth Wilson, MSB No. 103650

Christopher H. Meredith, MSB No. 103656 His Attorneys

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OF COUNSEL: Copeland, Cook, Taylor & Bush, P.A. 600 Concourse, Suite 100 1076 Highland Colony Parkway (Zip—39157) P.O. Box 6020 Ridgeland, MS 39158 Telephone: (601) 856-7200 Facsimile: (601) 856-7626 sbwilson@cctb.com cmeredith@cctb.com

CERTIFICATE OF SERVICE I hereby certify that I have this day served, via the court’s MEC notification

system, a true and correct copy of the above and foregoing on:

James Scarff scarfflawfirm@gmail.com Counsel for the Defendants

Samuel Fenton Creasey arocha@forthepeople.com Gregory John Bosseler rdye@forthepeople.com

THIS the 22nd day of July, 2016. /s/ Christopher H. Meredith Of Counsel