                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2006-CT-00674-SCT

AIRTRAN, INC., AND AMERICAN
MANUFACTURERS INSURANCE COMPANY

v.

PAMELA BYRD

                             ON WRIT OF CERTIORARI


DATE OF JUDGMENT:                         04/04/2006
TRIAL JUDGE:                              HON. STEPHEN B. SIMPSON
COURT FROM WHICH APPEALED:                HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                  WILLIAM BIENVILLE SKIPPER
ATTORNEY FOR APPELLEE:                    FLOYD J. LOGAN
NATURE OF THE CASE:                       CIVIL - WORKERS’ COMPENSATION
DISPOSITION:                              ORDER DENYING PENALTIES IS
                                          VACATED; THE JUDGMENT OF THE
                                          COURT OF APPEALS IS REVERSED AND
                                          REMANDED - 10/11/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.    This case arises from an employer’s appeal from an award of benefits by the

Mississippi Workers’ Compensation Commission. After the judgment of the Commission

was unconditionally affirmed by the Harrison County Circuit Court and the Court of

Appeals, Pamela Byrd moved for statutory penalties pursuant to Mississippi Code Annotated

Section 11-3-23. Although this section was repealed by the Legislature in 2002, the

applicable savings clause provides that the repeal applies to “causes of action” filed on or
after January 1, 2003. Miss. Code. Ann. § 11-3-23 (Rev. 2002). The Court of Appeals

denied Byrd’s motion. We find that Byrd’s filing of a Petition to Controvert with the

Mississippi Workers’ Compensation Commission on July 20, 2001, constitutes a “cause of

action” for the purposes of the savings clause and that Byrd is entitled to statutory penalties.

Accordingly, we vacate the Court of Appeals’ order denying penalties and reverse and

remand for action consistent with this opinion.

                                         FACTS

¶2.    Pamela Byrd worked as a ticket agent for AirTran, Inc., at the Gulfport-Biloxi

Airport. On July 31, 1999, Byrd fell while loading luggage into the cargo hull of an aircraft.

She sought workers’ compensation benefits from her employer AirTran and its carrier

American Manufacturers Mutual Insurance Company (hereinafter collectively “AirTran”)

for injuries to her neck, lower back, left and right shoulders, as well as the onset of

fibromyalgia and vascular necrosis due to the fall. AirTran denied benefits for her shoulders

and lower back. Byrd filed a Petition to Controvert on July 20, 2001. The administrative

judge awarded compensation for the injuries to her neck, right shoulder, and lower back.

AirTran appealed this determination, and the full Commission confirmed the order of the

administrative judge on July 21, 2005. The Harrison County Circuit Court affirmed the

decision of the full Commission on April 4, 2006. On April 3, 2007, the Court of Appeals

unconditionally affirmed the decisions of the Circuit Court and the Commission.

¶3.    On April 25, 2007, Byrd moved the Court of Appeals for an award of statutory

penalties pursuant to Mississippi Code Annotated Section 11-3-23. AirTran argued that

statutory penalties were not available as the statute had been repealed by the Mississippi

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Legislature in the Civil Justice Reform Act (House Bill No. 19, Third Extraordinary Session,

2002), which affected all actions filed on or after January 1, 2003. The Court of Appeals

denied Byrd’s motion and the subsequent Motion for Reconsideration. We granted certiorari

to clarify our previous opinion in Superior Car Rental v. Roberts, 871 So. 2d 1286 (Miss.

2004), as to interpretation of the savings clause in the Civil Justice Reform Act.

                                STANDARD OF REVIEW

¶4.    We review questions of law de novo. Dockins v. Allred, 849 So. 2d 151, 154 (Miss.

2003). In Dockins, we held that the review of a trial court’s determinations of the amount

in controversy and timetable for valuing property for the purpose of assessing statutory

penalties pursuant to Section 11-3-23 were questions of law. Id. Whether or not the statute

applies to a particular case is likewise a question of law. Therefore, we review the Court of

Appeals’ denial of statutory penalties de novo.

                                        DISCUSSION

¶5.    Section 11-3-23 of the Mississippi Code Annotated provided:

       In case the judgment or decree of the court below be affirmed, or the appellant
       fails to prosecute his appeal to effect, the Supreme Court shall render judgment
       against the appellant for damages, at the rate of fifteen percent (15%), as
       follows: If the judgment or decree affirmed be for a sum of money, the
       damages shall be upon such sum. If the judgment or decree be for the
       possession of real or personal property, the damages shall be assessed on the
       value of the property. If the judgment or decree be for the dissolution of an
       injunction or other restraining process at law or in chancery, the damages shall
       be computed on the amount due the appellee which was enjoined or restrained.
       If the judgment or decree be for the dissolution of an injunction or other
       restraining process as to certain property, real or personal, or a certain interest
       in property, or be a judgment or decree for the sale of property, or some
       interest in it, to satisfy a sum out of the proceeds of sale, or to enforce or
       establish a lien or charge or claim upon or some interest in property, and the
       only matter complained of on the appeal is the decree as to some particular

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       property or claim on it, the damages shall be computed on the value of the
       property or the interest in it, if the value of the property or interest in it be less
       than the judgment or decree against it; but if the value of the property or
       interest in it be greater than the amount of the judgment or decree against it,
       the damages shall be upon the amount of the judgment or decree; provided,
       however, the above penalty shall not be assessed against any condemnee
       appealing from a special court of eminent domain in any circumstances.

¶6.    This Court has applied this statutory penalty in workers’ compensation cases which

have been appealed to the circuit court, reviewed by the supreme court, and unconditionally

affirmed. M & J Oil Co. v. Dependents of Wilson, 507 So. 2d 1292, 1293 (Miss. 1987);

Delchamps, Inc. v. Baygents, 578 So. 2d 620 (Miss. 1991). In 2002, the Mississippi

Legislature repealed Section 11-3-23 by passage of the Civil Justice Reform Act. Section

16 of the Act states that the act “shall take effect and be in force from and after January 1,

2003, and shall apply to all causes of action filed on or after that date.”

¶7.    In Roberts, Plaintiffs Elizabeth Roberts, Richard D. Roberts, and Southern

Automotive Products, Inc. (hereinafter “Appellees”) won a jury verdict in the Circuit Court

of the First Judicial District of Hinds County, Mississippi. Roberts, 871 So. 2d at 1287.

Defendants Superior Car Rental, Inc., Mike Bonfiglio, and Real Cash for Titles, Inc.

(hereinafter “Appellants”) appealed the judgment to this Court. Id. The appeal was

dismissed due to Appellants’ failure to file a brief. Id. Appellants filed a motion to reinstate

the appeal, and Appellees filed a response in opposition to reinstatement and requested

statutory penalties be assessed pursuant to Mississippi Code Annotated Section 11-3-23. Id.

This Court denied the motion to reinstate the appeal but requested that the parties and the

Attorney General of the State of Mississippi brief the applicability of the savings clause in

the Civil Justice Reform Act. Id. Appellants did not file a brief as requested. Id.

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¶8.    Upon review of the parties’ briefs, this Court found that “Section 16 of the Civil

Justice Reform Act states that the act ‘shall take effect and be in force from and after January

1, 2003, and shall apply to all causes of action filed on or after that date.’” Id., at 1288. We

held that Appellees’ case was commenced in the circuit court prior to January 1, 2003, and

thus Section 16's savings clause preserved application of the statutory penalty. Id. In so

holding, we stated:

       . . .the Court finds that, pursuant to the savings clause contained in Section 16
       of the Act, the repeal of Miss Code Ann. § 11-3-23 applies to all cases
       commenced in a trial court on or after January 1, 2003. Cases which were
       filed in a trial court before January 1, 2003, are still subject to Miss. Code
       Ann. § 11-3-23.

Id. (Emphasis added). AirTran relied on this language in its Response to Appellee’s Motion

for Statutory Penalties and argued that Byrd’s motion for penalties should be denied as it was

not “commenced in a trial court” until AirTran made its appeal of the award of benefits to

the circuit court on September 28, 2005. We find this a misapplication of our holding in

Superior Car Rental.

¶9.    In Roberts, Appellees were investors in the Appellants’ business. Appellees filed suit

in the circuit court on December 22, 1998, against the Appellants, alleging breach of

contract, conversion, fraudulent misrepresentation, conspiracy, breach of the implied

covenant of good faith and fair dealing, and breach of fiduciary duty. Appellees won a jury

verdict at trial on September 19, 2001. Unlike this case, the Appellees in Roberts could only

“commence” their action in the trial court. Pamela Byrd was required by our laws to file her

cause of action in the form of a Petition to Controvert with the Mississippi Workers’




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Compensation Commission. Byrd’s filing of the Petition “commenced” the “cause of action”

for the purposes of section 11-3-23 and our opinion in Roberts.

¶10.   It is apparent that the savings clause of the Civil Justice Reform Act serves as a statute

of limitations for applicability of the penalties in light of the repeal. This Court has stated

that “the primary purpose of statutory time limitations is to compel the exercise of a right of

action within a reasonable time.” Lee v. Thompson, 859 So. 2d 981, 992 (Miss. 2003); Cole

v. State, 608 So. 2d 1313, 1317 (Miss. 1992). Byrd exercised her right of action within a

reasonable time, complying with the Commission’s procedural rules. AirTran was put on

notice that this claim was controverted and could thus lead to appellate review. We find

unpersuasive AirTran’s argument that the cause of action was not commenced until AirTran

filed an appeal with the circuit court.

¶11.   AirTran next argues that this Court held in Delchamps that Section 11-3-23 does not

apply to an appeal from the Mississippi Workers’ Compensation Commission to the circuit

court. Delchamps, 578 So. 2d at 624. While this is an accurate statement from our opinion,

it is misinterpreted by AirTran. In Delchamps, the Circuit Court of Harrison County

assessed penalties against the unsuccessful appellants when it affirmed the decision of the

Workers’ Compensation Commission in favor of the appellee claimant. We reversed this

assessment because such a penalty is available only when the Commission’s order has first

been appealed to the circuit court and then appealed to and unconditionally affirmed by the

Supreme Court. The Circuit Court of Harrison County lacked the power to assess the

penalties. Our holding in Delchamps does not apply to the case at bar, which was first

appealed to the circuit court and then to this Court.

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                                   CONCLUSION

¶12.   We find that this case was commenced on July 20, 2001, the date of filing of the

Petition to Controvert. The cause of action was thus commenced before January 1, 2003.

Section 11-3-23 is applicable to AirTran’s unsuccessful appeal, and penalties should be

assessed. It is so ordered.

¶13. ORDER DENYING PENALTIES IS VACATED; THE JUDGMENT OF THE
COURT OF APPEALS IS REVERSED AND REMANDED FOR PROCEEDINGS
CONSISTENT WITH THIS OPINION.

     WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, DICKINSON, RANDOLPH
AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.




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