                         IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2006-EC-02096-SCT

JUDY SUMNER

v.

CITY OF COMO DEMOCRATIC EXECUTIVE
COMMITTEE AND MAYOR AZRIA LEWERS

DATE OF JUDGMENT:                           11/02/2006
TRIAL JUDGE:                                HON. SHARION R. AYCOCK
COURT FROM WHICH APPEALED:                  PANOLA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    STEVEN W. PITTMAN
                                            GERALD W. CHATHAM
ATTORNEYS FOR APPELLEES:                    ELLIS TURNAGE
                                            SANFORD E. KNOTT
NATURE OF THE CASE:                         CIVIL - ELECTION CONTEST
DISPOSITION:                                REVERSED AND REMANDED - 01/17/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

         EN BANC.

         RANDOLPH, JUSTICE, FOR THE COURT:

     “How little you know about the age you live in if you think that honey is sweeter than
                                  cash in hand.” – Ovid 1

¶1.      Judy Sumner’s “Petition for Judicial Review of Primary Runoff Election for Mayor,

City of Como” was dismissed for lack of subject matter jurisdiction, based upon an alleged

failure to comply strictly with the cost-bond provision of Mississippi Code Annotated

Section 23-15-927 (Rev. 2007). From that ruling, this appeal proceeds.




         1
             Ovid, Fasti, bk. I.
                                          FACTS

¶2.    On May 3, 2005, the primary election for the Democratic nomination for Mayor of

the City of Como was held. On May 17, 2005, a runoff election for that nomination was held

between Judy Sumner and Azria Lewers. Thereafter, the Como Democratic Executive

Committee (“CDEC”) met to canvass the votes and certified Lewers as the winner. The

CDEC declared that Lewers had received 310 votes and Sumner had received 302 votes.

¶3.    By letter dated June 2, 2005, Sumner submitted a formal protest to the CDEC

contesting the election results, alleging “fraud, bribery and that inappropriate ballots were

counted.” That same day, Sumner gave written notice to the Como Municipal Court Clerk,

“requesting a full examination of the mayor’s election ballot box and its contents pursuant

to Mississippi Code Annotated Section 23-15-911.” By letter dated June 6, 2005, the CDEC

denied Sumner relief, adding that “[a]ny proof you might have of fraud or bribery needs to

be presented before this committee. Any further actions are subject to judicial review.” On

June 23, 2005, Sumner filed her petition for judicial review, naming CDEC as the only

defendant.2 Along with the petition, Sumner provided a cost bond consisting of $300 cash.

On July 1, 2005, this Court entered an order appointing the Honorable Sharion Aycock as

Special Judge “to preside and conduct proceedings . . . pursuant to and by authority of Miss.

Code Ann. § 23-15-951 and § 9-1-105.”

¶4.    At the November 3, 2006, hearing in the Circuit Court of the First Judicial District of

Panola County, Mississippi, the CDEC advanced an ore tenus motion to dismiss for lack of



       2
       On January 23, 2006, Sumner filed her amended petition for judicial review, adding
Lewers as a defendant.

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subject matter jurisdiction, based upon Sumner’s alleged failure to comply with the cost-bond

provisions of Mississippi Code Annotated Section 23-15-927.3 The circuit court concluded

that:

        the failure to post the bond and to strictly comply with the statute is
        jurisdictional; that because the bond was not posted, it is a defect that cannot
        be cured today; and, the [c]ourt is going to dismiss the petition for judicial
        review in this cause number and in part doing so based on Rule 12(h)(3) which
        does indicate that, “[i]f the Court lacks jurisdiction, that it shall dismiss the
        action or transfer it to a court of appropriate jurisdiction.” There being no
        court to transfer this matter to, the matter is dismissed.

The circuit court’s order granting the motion to dismiss stated that subject matter jurisdiction

was lacking because the cost-bond provision of Mississippi Code Annotated Section 23-15-

927 is “jurisdictional, mandatory, and must be strictly construed and complied with.”

Thereafter, Sumner filed a motion to set aside that order. The circuit court subsequently

issued an order denying Sumner’s motion, again finding the cost-bond provisions of

Mississippi Code Annotated Section 23-15-927 to be jurisdictional and holding that the $300

cash received by the circuit clerk did not satisfy that “mandatory” provision. Furthermore,

the circuit court found that Sumner’s “failure to post a cost bond as prescribed by Miss. Code

Ann. § 23-15-927 (1972) with two (2) or more sufficient sureties is jurisdictional and cannot

be cured . . . .” Therefore, the petition for judicial review was dismissed for failure to comply

with Mississippi Code Annotated Section 23-15-927 (Rev. 2007).




        3
        The CDEC maintained that “the cost bond requirement of the statute is mandatory
and in this absence of the cost bond and the failure to strictly comply with the statutory
requirements, . . . the [c]ourt doesn’t have jurisdiction to proceed on this matter.”

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                                        ANALYSIS

       I. Whether the circuit court properly interpreted and construed the cost-
       bond provision of Mississippi Code Annotated Section 23-15-927.

¶5.    “In an election contest, the standard of review for questions of law is de novo.”

Garner v. State Democratic Exec. Comm., 956 So. 2d 906, 909 (Miss. 2007) (citing Ladner

v. Necaise, 771 So. 2d 353, 355 (Miss. 2000)).

¶6.    Mississippi Code Annotated Section 23-15-927 states, in pertinent part, that a petition

for judicial review of an election contest:

       shall not be filed unless it bear the certificate of two (2) practicing attorneys
       that they and each of them have fully made an independent investigation into
       the matters of fact and of law upon which the protest and petition are based
       and that after such investigation they verily believe that the said protest and
       petition should be sustained and that the relief therein prayed should be
       granted, and the petitioner shall give a cost bond in the sum of Three Hundred
       Dollars ($300.00), with two (2) or more sufficient sureties conditioned to pay
       all costs in case his petition be dismissed, and an additional bond may be
       required, by the judge or chancellor, if necessary, at any subsequent stage of
       the proceedings. The filing of such petition for judicial review in the manner
       set forth above shall automatically supercede and suspend the operation and
       effect of the order, ruling or judgment of the executive committee appealed
       from.

Miss. Code Ann. § 23-15-927 (Rev. 2007) (emphasis added). In the case sub judice, Sumner

provided a cost bond consisting of $300 cash at the time she filed her petition for judicial

review, without naming “two (2) or more sufficient sureties conditioned to pay all costs in

case [her] petition be dismissed . . . .” Miss. Code Ann. § 23-15-927 (Rev. 2007).




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¶7.    Like other provisions in Mississippi Code Annotated Section 23-15-927 which have

been deemed jurisdictional,4 this Court finds that the cost-bond provision also is

jurisdictional. However, unlike the circuit court, this Court finds that the cost bond provided

by Sumner was sufficient and that it satisfies the jurisdictional requirement of the statute.

The lower court’s error lies in finding that the $300 cash received by the circuit clerk failed

to satisfy the cost-bond provision of Mississippi Code Annotated Section 23-15-927. A

bond 5 is a pledge or guarantee for the fulfillment of an undertaking. By paying cash, Sumner

completed the undertaking, thus no surety or guarantor was required to promise performance

of that which already had been accomplished. As Sumner provided in cash the statutory

maximum amount, ipso facto, the cost-bond provision of Mississippi Code Annotated

Section 23-15-927 was satisfied.




       4
         In Waters v. Gnemi, 907 So. 2d 307 (Miss. 2005), this Court found the provision
providing that the petitioner attach the protest or complaint that had been filed with the
executive committee to his petition for judicial review to be a jurisdictional requirement. See
id. at 319. Similarly, this Court has found the provision regarding the inclusion of “the
certificate of two (2) practicing attorneys” with the petition for judicial review to be a
jurisdictional requirement. See id. at 322.
       5
         A “bond” has been defined as “[a] written and sealed obligation, esp. one requiring
payment of a stipulated amount of money on or before a given day[,]” Webster’s II New
College Dictionary 126 (3d ed. 2001); “a written promise to pay a debt or to do some act
(e.g., an appeal bond)[,]” Bryan A. Garner, A Dictionary of Modern Legal Usage 113 (2d ed.
1995); or “an . . . agreement whereby a person or corporation becomes a surety to pay, within
defined limits, for a financial loss suffered by a second person under certain circumstances
(e.g., a bail bond, delivery bond, indemnity bond, or judicial bond).” Id. See also Black’s
Law Dictionary 416 (4 th ed. 1968) (defining “cost bond” as “[a] bond given by a party to an
action to secure the eventual payment of such costs as may be awarded against him.”).

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                                     CONCLUSION

¶8.    For the foregoing reasons, this Court finds that the cost-bond provision of Mississippi

Code Annotated Section 23-15-927 is jurisdictional. However, this Court further concludes

that the $300 cost bond mandated thereby was satisfied by Sumner, in cash, at the outset.

That $300 cash payment, in lieu of a promise to pay, satisfied the cost-bond requirement of

Mississippi Code Annotated Section 23-15-927 in its entirety. As such, we reverse and

remand to the circuit court for further proceedings in accord with this opinion.

¶9.    REVERSED AND REMANDED.

    WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, DICKINSON AND
LAMAR, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION. SMITH, C.J., NOT PARTICIPATING.




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