87 So. 3d 444
Miss.2012Background
- Martin contracted with Lyons for appellate work May 2006–Aug. 2007; Martin paid invoices until June 2007.
- Lyons withdrew from a Supreme Court appeal due to nonpayment and potential conflict; Lyons sought payment.
- Lyons filed a county court action August 25, 2008 for breach of contract/open account; damages $14,543.19; fees $4,847.73.
- Martin answered but participated little, failed to respond to discovery and attend hearings; sanctions were imposed against Martin.
- County court awarded damages and attorney’s fees; Martin appealed to circuit court.
- Circuit court reversed the fee award, holding the contract was oral and not an open account; Lyons appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether circuit court had jurisdiction on appeal from county court | Lyons argues failure to post 11-51-79 bond nullifies jurisdiction | Martin argues the cost bond sufficed; supersedeas not required for jurisdiction | Circuit court had appellate jurisdiction; cost bond sufficed; supersedeas not jurisdictional here |
| Whether county court properly awarded attorney’s fees under open-account theory | Lyons entitled to fees under 11-53-81 as open account | Martin contends contract, not open account; 11-53-81 not applicable | Attorney’s fees statute applied; open account existed; award reinstated |
Key Cases Cited
- Sumner v. City of Como Democratic Executive Comm., 972 So.2d 616 (Miss. 2008) (cash payment satisfied cost-bond requirements for appeal)
- Johnson v. Evans, 517 So.2d 570 (Miss. 1987) (cost bond guarantees subject-matter jurisdiction for appeal)
- Parkman v. Miss. State Highway Comm’n, 250 So.2d 637 (Miss. 1969) (open appeal bond principles for jurisdiction)
- Mauldin Co. v. Lee Tractor Co. of Mississippi, Inc., 920 So.2d 513 (Miss.Ct.App.2006) (open account defined; unwritten contract; fees under 11-53-81)
- Michael S. Fawer v. Evans, 627 So.2d 829 (Miss. 1993) (fees in open-account prosecutions; unwritten contracts)
- Richards v. Gulfco Electronics Corp., 360 So.2d 609 (Miss. Ct. App. 1978) (open account vs. series of contracts; professional services)
- Smith Brothers Trucking of Mount Airy, Inc., 2008 WL 4681641 (N.D.N.C. 2008) (non-binding; open account distinction not met)
- Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 619 So.2d 908 (Miss. 1993) (definition of open account; continuing transactions)