Edmond Allen Jenkins v. Eldon Thomas Jenkins
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-CA-01337-COA
EDMOND ALLEN JENKINS AND DONNA B. JENKINS
v.
ELDON THOMAS JENKINS, EARL BURNELL JENKINS, LAVELLE
JENKINS MCREE, ALICE JENKINS THOMPSON, EDMUND BURKE
JENKINS, FRANCIS JENKINS SIMMONS, SHIRLEY JENKINS
SESSIONS, SARA ANN JENKINS WHITE, HENRIETTA JENKINS
BUCKLEY, DILLY JENKINS AND ROBERT EUGENE JENKINS
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANTS
APPELLEES
07/14/2001
HON. R. B. REEVES, JR.
COPIAH COUNTY CHANCERY COURT
JOHN R. REEVES
JOHN T. ARMSTRONG, JR.
DUDLEY F. LAMPTON
CIVIL - OTHER
CIRCUIT COURT ASSESSED PENALTIES AND
INTEREST AGAINST EDMOND ALLEN JENKINS
AFFIRMED - 10/29/2002
BEFORE McMILLIN, C.J., BRIDGES, THOMAS, JJ.
BRIDGES, J., FOR THE COURT:
Procedural History
¶1. A partition suit was filed in the Chancery Court of Copiah County, Mississippi, on October 12, 1992,
seeking to divide real property, where the plaintiff/appellees, Eldon Thomas Jenkins et al. (Eldon), owned
5/6 interest and the defendant/appellants, Edmond Allen and Donna B. Jenkins (Allen), owned the other
1/6 interest. On May 6, 1993, the parties entered an agreed judgment which adjudicated that the tract of
land in dispute contained 219 acres, more or less, with the land being specifically described according to a
government survey. It was further agreed that the tract could be partited in kind by appointed
commissioners. Judgment was entered on February 23, 1994, dividing the land into two tracts of 182.5
acres and 36.5 acres, the former granted to Eldon. Final judgment was entered on May 9, 1994,
adjudicating the same and setting forth an appeal bond in the amount of $38,021.
¶2. Aggrieved, Allen appealed to the Mississippi Supreme Court. The case was deflected to this Court and
we entered judgment affirming the decision of the chancery court on August 6, 1996. Allen's petition for
rehearing was denied on October 15, 1996, and the supreme court denied certiorari on January 9, 1997.
¶3. On March 18, 1997, Eldon filed a motion for contempt for failure to comply with the final order. Allen
filed a counter-motion on May 8, 1997, seeking Mississippi Rules of Civil Procedure Rule 60 relief and
sought to reopen the partition proceedings under section 11-21-35 of the Mississippi Code. The chancery
court ruled on June 23, 1997, that Allen was time-barred from asserting Rule 60 (b) (2) and (3) arguments
by the running of the statute of limitations for appeals. The court further ordered that Allen's arguments for
Rule 60 (b) (5) and (6) were also barred because the arguments were not filed within a reasonable time
after the judgment was entered. See Hinds Co. Bd. of Supervisors v. Common Cause of Miss., 551 So.
2d 107 (Miss. 1989). It was also determined by this Court and reiterated by the chancery court that the
agreed judgment entered on May 6, 1993, operated as a waiver of any rights or claims concerning the
property. The chancery court again ordered a supersedeas bond in the amount of $38,021, in the event an
appeal was prosecuted. The chancery court found Allen was not in compliance with the injunction and fined
him $2,200 plus attorney's fees and the half of the expenses of a surveyor for a total judgment of $2750.
¶4. Allen appealed. On April 18, 2000, this Court again affirmed the 1997 judgment of the Copiah County
Chancery Court, awarding statutory damages and interest. Eldon filed a motion for judgment on appeal
bond on October 23, 2000, seeking penalties and interest. The chancery court, by way of a special
chancellor, ordered that Allen pay penalties in the amount of 15% of the value of the land, or $4,562.50
and interest at an annual rate of 8%, beginning to run from July 6, 2001. Aggrieved, Allen comes back
before this Court raising two issues for review:
I. WHETHER THE TRIAL COURT ERRED IN ASSESSING A 15% APPEAL PENALTY BASED
ON A MANDATE HANDED DOWN BY THE MISSISSIPPI COURT OF APPEALS.
II. WHETHER THE TRIAL COURT ERRED IN ASSESSING INTEREST ON THE 15% APPEAL
PENALTY BASED ON A MANDATE HANDED DOWN BY THE MISSISSIPPI COURT OF
APPEALS.
¶5. Finding no error, we affirm the order of the chancery court.
Legal Analysis
¶6. The two issues on appeal may be consolidated into one for discussion purposes. Allen contends that our
Court did not issue penalties and interest against him in our mandate. Therefore, Allen asserts, the chancery
court was in error when it ordered penalties and interest without direction from our Court. Eldon contends
that we issued such an order for penalties and interest in the mandate handed down in May of 2000. We
agree with Eldon.
¶7. Section 11-3-23 of the Mississippi Code Annotated (Rev. 1991) provides that if the appellant is not
successful in his appeal bid, "the supreme court shall render judgment against the appellant for damages, at
the rate of fifteen percent (15%) . . . [i]f the judgment or decree be for the possession of real or personal
property." In our mandate, we clearly assessed penalties and interest against Allen. It is not for our Court to
determine the exact amount of the damages, as we defer this task to the court that heard the complaint.
Upon our mandate and motion by Eldon, the chancery court issued penalties of 15% of the value of the land
pursuant to statute and interest from the date the penalty was determined. There was no error and we affirm
the Copiah County Chancery Court.
¶8. THE JUDGMENT OF THE COPIAH COUNTY CHANCERY COURT IS AFFIRMED.
COSTS OF THIS APPEAL ARE ASSESSED AGAINST THE APPELLANTS.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
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