IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO CA-00062

Transcription

1 E-Filed Document Jun :38: CA Pages: 24 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO CA GULFPORT PARTNERS V, L.P.; GULFPORT PARTNERS VI, L.P.; GULFPORT PARTNERS VII, L.P.; GULFPORT PARTNERS VIII, L.P.; AND GULFPORT PARTNERS IX, L.P. APPELLANTS v. HARRISON COUNTY BOARD OF SUPERVISORS and TAL FLURRY, TAX ASSESSOR FOR HARRISON COUNTY, MISSISSIPPI APPELLEES Consolidated with 2016-CA BELLEMONT GARDENS, LP and BILOXI GATES, LP APPELLANTS v. HARRISON COUNTY BOARD OF SUPERVISORS APPELLEES and TAL FLURRY, TAX ASSESSOR FOR HARRISON COUNTY, MISSISSIPPI Consolidated with 2016-CA D IBERVILLE PARTNERS, L.P.; WOOLMARKET PARTNERS, L.P.; AND WOOLMARKET PARTNERS II, L.P. APPELLANTS v. HARRISON COUNTY BOARD OF SUPERVISORS and TAL FLURRY, TAX ASSESSOR FOR HARRISON COUNTY, MISSISSIPPI APPELLEES

2 Consolidated with 2016-CA D IBERVILLE PARTNERS, L.P.; WOOLMARKET PARTNERS, L.P.; AND WOOLMARKET PARTNERS II, L.P. APPELLANTS v. HARRISON COUNTY BOARD OF SUPERVISORS and TAL FLURRY, TAX ASSESSOR FOR HARRISON COUNTY, MISSISSIPPI APPELLEES APPEAL FROM THE CIRCUIT COURT OF HARRISON COUNTY, MISSISSIPPI FIRST AND SECOND JUDICIAL DISTRICTS BRIEF OF APPELLANTS GULFPORT PARTNERS V, L.P.; GULFPORT PARTNERS VI, L.P.;GULFPORT PARTNERS VII, L.P.; GULFPORT PARTNERS VII, L.P.; and GULFPORT PARTNERS IX, L.P. and BELLEMONT GARDENS, LP and BILOXI GATES, LP and D IBERVILLE PARTNERS, L.P.; WOOLMARKET PARTNERS, L.P.;and WOOLMARKET PARTNERS II, L.P. John G. Corlew (MSB # 6526) Lynn Wall (MSB # 99552) CORLEW MUNFORD & SMITH PLLC 4450 Old Canton Road; Suite 111 Post Office Box Jackson, MS Telephone: Facsimile: ii

3 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO CA GULFPORT PARTNERS V, L.P.; GULFPORT PARTNERS VI, L.P.; GULFPORT PARTNERS VII, L.P.; GULFPORT PARTNERS VIII, L.P.; AND GULFPORT PARTNERS IX, L.P. APPELLANTS v. HARRISON COUNTY BOARD OF SUPERVISORS and TAL FLURRY, TAX ASSESSOR FOR HARRISON COUNTY, MISSISSIPPI APPELLEES Consolidated with 2016-CA BELLEMONT GARDENS, LP and BILOXI GATES, LP APPELLANTS v. HARRISON COUNTY BOARD OF SUPERVISORS APPELLEES and TAL FLURRY, TAX ASSESSOR FOR HARRISON COUNTY, MISSISSIPPI Consolidated with 2016-CA D IBERVILLE PARTNERS, L.P.; WOOLMARKET PARTNERS, L.P.; AND WOOLMARKET PARTNERS II, L.P. APPELLANTS v. HARRISON COUNTY BOARD OF SUPERVISORS and TAL FLURRY, TAX ASSESSOR FOR HARRISON COUNTY, MISSISSIPPI APPELLEES iii

4 Consolidated with 2016-CA D IBERVILLE PARTNERS, L.P.; WOOLMARKET PARTNERS, L.P.; AND WOOLMARKET PARTNERS II, L.P. APPELLANTS v. HARRISON COUNTY BOARD OF SUPERVISORS and TAL FLURRY, TAX ASSESSOR FOR HARRISON COUNTY, MISSISSIPPI APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal: 1. Gulfport Partners V, LP, Gulfport Partners VI, LP, Gulfport Partners VII, LP, Gulfport Partners VIII, LP and Gulfport Partners IX, LP 2. Bellemont Gardens, LP and Biloxi Gates, LP 3. D Iberville Partners, L.P., Woolmarket Partners, L.P. and Woolmarket Partners II, L.P. 4. Tal Flurry, Tax Assessor for Harrison County Mississippi 5. Harrison County Board of Supervisors 6. John G. Corlew, Lynn Wall, Corlew Munford & Smith (counsel for Appellants) iv

5 7. Jerome C. Hafter, R. Gregg Mayer, Phelps Dunbar (counsel for Appellants) 8. Timothy C. Holleman, Patrick T. Guild, Boyce Holleman & Associates (counsel for Appellees) This the 8th day of June, /s/ John G. Corlew John G. Corlew Counsel for GULFPORT PARTNERS V, L.P.; GULFPORT PARTNERS VI, L.P.; GULFPORT PARTNERS VII, L.P.; GULFPORT PARTNERS VII, L.P.; and GULFPORT PARTNERS IX, L.P. and BELLEMONT GARDENS, LP and BILOXI GATES, LP and D IBERVILLE PARTNERS, L.P.; WOOLMARKET PARTNERS, L.P.; and WOOLMARKET PARTNERS II, L.P. v

6 TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS TABLE OF CONTENTS iv vi TABLE OF CASES, STATUTES AND OTHER AUTHORITIES CITED vii STATEMENT OF THE ISSUES STATEMENT OF CASE SUMMARY OF THE ARGUMENT ARGUMENT I. Whether taxpayer who successfully appeals county ad valorem tax assessment is entitled to recover cost of bond premiums required by statute to perfect appeal II. Whether taxpayer who successfully appeals county ad valorem tax assessment is entitled to recover prejudgment interest on liquidated amount of tax in dispute required to be paid by statute CONCLUSION CERTIFICATE OF SERVICE vi

7 TABLE OF CASES, STATUTES AND OTHER AUTHORITIES CITED Page CASES Aetna Cas. & Surety Co. v. Doleac Elec. Co., Inc. 471 So. 2d 325, 331 (Miss. 1985) Alldred v. Fairchild 916 So. 2d 529 (Miss. 2005) Arcadia Farms Partnership v. Audubon Insurance Co. 77 So. 3d 100 (Miss. 2012) Bailey Brake Farms, Inc. v. Trout 116 So. 3d 1064 (Miss. 2013) City of Jackson v. Williamson 747 So. 2d Coho Resources, Inc. v. McCarthy 829 So. 2d 1 (Miss. 2002) Guardianship of Duckett v. Duckett 991 So. 2d 1165 (Miss. 1008) Gulf City Seafoods, Inc. v. Oriental Foods, Inc. 986 So. 2d 974 (Miss. Ct. App. 2007) cert. denied, 981 So. 2d 298 Gulf M. & O. R. Co. v. Webster County 13 So. 2d 644 (Miss. 1943) In the Matter of the Extension of the Boundaries of the City of Tupelo 94 So. 3d 256 (Miss. 2012) Jackson State University v. Upsilon Epsilion Chapter of Omega Psi Phi Fraternity 952 So. 2d 184 (Miss. 2007) vii

8 McNeel v. Miss. Dept. Of Human Services 99 So. 3d 244 (Ms. Ct. App. 2012) Mississippi Department of Human Services. v. McNeel 10 So. 3d , 13 Moeller v. American Guarantee & Liability Ins. Co. 812 So. 2d 953 (Miss. 2002) Preferred Risk Mutual Insurance Co. v. Johnson 730 So. 2d 574 (Miss. 1998) Stockstill v. Gammill 943 So. 2d 35 (Miss. 2006) Sunburst Bank v. Keith 648 So. 2d 1147 (Miss. 1995) Upchurch Plumbing, Inc. v. Greenwood Utilities Commission 964 So. 2d 1100 (Miss. 2007( Willow Bend Estates, LLC, et al. v. Humphreys County Board of Supervisors, et al. 166 So. 3d 494 (Miss. 2013) , 10 RULES AND STATUTES Miss. Code , 4, 5, 7, 8, 12, 13 Miss. Code , 8 Miss. Code (4)(d) Miss. Code , Miss. Code , 11, 12, 13 Miss. Rule of Appellate Procedure viii

9 Miss. Rule of Civil Procedure Miss. Rule of Civil Procedure 54(d) , 8 ix

10 STATEMENT OF THE ISSUES I. Whether taxpayer who successfully appeals county ad valorem tax assessment is entitled to recover cost of bond premiums required by statute to perfect appeal. II. Whether taxpayer who successfully appeals county ad valorem tax assessment is entitled to recover prejudgment interest on liquidated amount of tax in dispute required to be paid by statute. 1

11 STATEMENT OF CASE This matter comes before the Court on appeal from the Circuit Court of Harrison County, Mississippi. Each of the four cases involves appeal of ad valorem tax assessments by the Harrison County Board of Supervisors. Each of the four consolidated cases involves appellants who have common ownership and relates to an assessment in a single tax year. Regardless of the identity of the taxpayer, and of the tax year in question, there are two legal issues presented for the Court s consideration. These legal issues are identical in each of the four cases. The Mississippi Supreme Court entered its decision in Willow Bend Estates, LLC, et al. v. Humphreys County Board of Supervisors, et al., 166 So. 3d 494 (Miss. 2013) on October 13, 2013; modified on denial of rehearing on August 7, That decision addressed the manner in which affordable rental housing should be assessed pursuant to Miss. Code (4)(d). At the time of that decision each of the four cases on appeal here were pending for consideration in Harrison County Circuit Court. Based on the Willow Bend decision, all of the parties in these four cases agreed on the amount of the assessment for each property, for each tax year in question. An Agreed Final Judgment in each of the four cases was entered as follows: Case No CA on April 1, 2015 (R ) Case No CA on April 1, 2015 (R ) Case No CA on April 1, 2015 (R ) Case No CA on April 1, 2015 (R ) 2

12 Each of these Agreed Final Judgments concluded with the following language: that the court retains jurisdiction to consider costs and/or interest, if any. Thereafter, the Appellants in each case filed a Motion to Tax Costs and Prejudgment Interest. The only costs addressed by these motions were bond premiums paid by the Appellants pursuant to the requirements of Miss. Code to perfect appeal. These costs were specifically identified by affidavits filed in support of the motions in each case. In each case, with respect to prejudgment interest, affidavits supported the motion setting forth the date on which the taxes due in the particular year were paid; the amount of the overpayment as adjudicated by the Agreed Final Judgment and the date of March 17, 2015, the date the Board of Supervisors of Harrison County, Mississippi adopted an order authorizing entry of judgment in the affordable rental housing tax appeals. (R in Case No CA-00062). All tax refunds due pursuant to the Agreed Final Judgment were paid after March 17, That date was selected for convenience in the event the Circuit Court determined that prejudgment interest should be awarded. The motions came on for hearing before the Harrison County Circuit Court on July 9, On December 18, 2015 that Court entered an identical final judgment in each of the four cases denying the motions, both with respect to taxation of bond premiums as costs and for prejudgment interest. (R , R , R , R , respectively). The record in the court below quantified the exact amount of bond premium costs which Appellants contended were taxable in each case. Likewise, the record reflects the 3

13 exact period of time for which prejudgment interest would be applicable, if awarded, and the exact amount of the overpayment of taxes which could be subject to prejudgment interest. Rather than address the precise amount of bond premium costs in each case and the precise period for which prejudgment interest might be awarded on a particular amount of overpayment of taxes, for purposes of illustration the Appellants argument will only address the amounts involved in one of the cases on appeal (Case No CA-00062). This Court s determination as to that case would apply in precisely the same manner as the other three cases on appeal. SUMMARY OF THE ARGUMENT In order for the taxpayers here to appeal the tax assessments by the Harrison County Board of Supervisors, they were required to post a bond in double the amount of money in dispute. Miss. Code They also were required to pay taxes including taxes on the amount of money in dispute. Miss. Code ,-11. Taxpayers successfully challenged the assessments. The circuit court would not have had jurisdiction without bond posted in double the amount in dispute, and taxpayers were required to incur the expense of bond premiums. The Mississippi Rules of Appellate Procedure define costs to include bond premiums incurred for supersedeas. The circuit court denied taxpayers claim to recover such premiums as costs. This Court should reverse and remand with instructions to award taxpayers their bond premium payments as costs in this matter. The taxpayers overpaid taxes in the four cases on appeal in amounts from $135, to $228, and were required 4

14 to pay those amounts despite their appeal. Harrison County received those funds and had the use of taxpayers money from one to four years in these cases. Prejudgment interest is awarded to compensate a party for the time value of its money; to compensate for delay in payment. Harrison County should be required to pay prejudgment interest to the taxpayers. The circuit court denied prejudgment interest. That decision should be reversed and the case remanded with instructions to the trial court to award prejudgment interest in an amount determined appropriate in accordance with of the Mississippi Code. ARGUMENT I. Whether Taxpayer Who Successfully Appeals County Ad Valorem Tax Assessment Is Entitled to Recover Cost of Bond Premiums Required by Statute to Perfect Appeal. Gulfport Partners V, LP, Gulfport Partners VI, LP, Gulfport Partners VII, LP, Gulfport Partners VIII, LP and Gulfport Partners IX, LP (collectively Gulfport Partners ) were aggrieved by the assessment of their respective properties for ad valorem taxes for the year They duly appealed to the Circuit Court of Harrison County, Mississippi, First Judicial District (R ), including posting an appeal bond as to each involved property in double the amount of the taxes in controversy (R ) as required by Miss. Code These bonds had to be renewed annually during the pendency of the appeal. Gulfport Partners paid $36, for bond premiums with respect to their appeal in Case No CA Miss. Code provides that: 5

15 If the matter be decided in favor of the person who appealed, judgment in his favor shall be certified to the board of Supervisors, or the municipal authorities, as the case may be, which shall conform thereto, and shall pay the costs. (emphasis added) The tax appeal here was decided in favor of Gulfport Partners. Gulfport Partners was entitled to recover its costs. Those costs include the premiums for the statutorily required appeal bonds for each of the properties. premiums. The Mississippi Supreme Court has specifically defined costs to include bond Costs incurred in the preparation of transmission of the record, the cost of the reporter s transcript, if necessary for the determination of the appeal, the premiums paid for cost of supersedeas bonds or other bonds to preserve rights pending appeal, and the fee for filing the appeal shall be taxed in the trial court as costs of the appeal in favor of the party entitled to cost under this rule. (emphasis added). Miss. R. App. P. 36(c) Furthermore, Miss. Rule of Civil Procedure 54(d) provides that: Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the Court otherwise directs, and this provision is applicable in all cases in which the State of Mississippi is a party plaintiff in civil actions as in cases of individual suitors. Gulfport Partners was unquestionably the prevailing party in the Court below and there is no statute which expressly provides that costs be otherwise awarded than to the prevailing party. Rule 54(d) even specifically states that it applies where the State of Mississippi is a litigant, and should likewise apply to any county or municipal government when it is a litigant. 6

16 In City of Jackson v. Williamson, 747 So. 2d 818, (Miss. 1999), this Court stated:... the specific language of Rule 37 of the Mississippi Rules of Appellate Procedure [addressing interest on judgments] shifts the burden to the State and its political subdivision to provide explicit statutory exceptions to the new general rule that the State and its political subdivisions must pay the same costs and interest as individual or corporate appellants who lose their appeals (emphasis added). Williamson articulates the same condition as Miss. Code , i.e., the costs are taxable unless explicit statutory exceptions provide otherwise. There are no statutory exceptions here. In contexts other than bond premiums, this Court has held that costs include such required expenses as accounting fees, Allred v. Fairchild, 916 So. 2d 529, (Miss. 2005), and publication of notice in an annexation proceeding. In the Matter of the Extension of the Boundaries of the City of Tupelo, 94 So. 3d 256, (Miss. 2012). The Circuit Court denied Gulfport Partners motion to tax bond premiums as costs on four grounds: (1) that the Mississippi Rules of Appellate Procedure do not apply to circuit court; (2) that Miss. Code allows the circuit court, when the circumstances of the case justify it, tax the costs to meet the ends of justice; (3) that bond premiums are not official expenses assessable against a litigant under Rule 54; and (4) no statutory authority exists for the recovery of such bond premiums. (R ). (1) The lower court does not cite a definition of costs which varies from the definition provided in the Mississippi Rules of Appellate Procedure. 7

17 (2) Miss. Code supports the position of Gulfport Partners because it requires that the successful party shall be entitled to recover full costs. (emphasis added) The Court cites no reason that the ends of justice call for Gulfport Partners not to recover full costs. The specific ad valorem tax appeal statute, Miss. Code , which requires costs be paid, controls the general appellate statute, Miss. Code and any exception it provides for the ends of justice. The Court cites nothing to cause one to deviate from the M.R.C.P. 54(d) requirement that costs shall be allowed of course to the prevailing party. (3) The Court points to no definition of official expenses which does not include bond premiums. Indeed, without bond the circuit court would have no jurisdiciton of the appeal. Jackson State University v. Upsilon Epsilion Chapter of Omega Psi Phi Fraternity, 952 So.2d 184, 186 (Miss. 2007). (4) The Court states that there is no statutory authority for the recovery of bond premiums, but both Rule 54(d) and Miss. Code do not require such statutory authority, but provide to the contrary, i.e., that taxable costs are awardable unless a statute provides otherwise. This Court should hold that bond premiums are taxable as costs and remand this case to the lower court with instructions to award same. II. Whether Taxpayer Who Successfully Appeals County Ad Valorem Tax Assessment Is Entitled to Recover Prejudgment Interest on Liquidated Amount of Tax in Dispute Required to Be Paid by Statute 8

18 An award of prejudgment interest is based on the premise that one s use of another party s money has an economic value measured by a rate of interest until payment. See, e.g., Sunburst Bank v. Keith, 648 So. 2d 1147, 1153 (Miss. 1995). And see Preferred Risk Mutual Insurance Co. v. Johnson, 730 So. 2d 574, 577 (Miss. 1998) (prejudgment interest is allowed as compensation for the detention of money overdue.) Therefore, a delay in payment should be compensated. In this case, it is undisputed that Harrison County had the use of Appellants tax overpayment during the following periods of time: Case No. Date and Amount of Tax Overpayment Date of Board Refund Resolution Record Cite 2016-CA January 27 - February 7, $228, CA April 2, $163, CA January 14 - February 3, $135, CA January 28 - February 4, $203, March 17, 2015 R March 17, 2015 R March 17, 2015 R March 17, 2015 R Harrison County had the use of tax overpayments to which it was not entitled in each of the four cases for periods of one to four years. Affidavits in each of the cases set forth the precise amount of overpayment, and date of overpayment. (R ; R ; R ; R , respectively) In Case No CA-00062, for illustration purposes, Gulfport Partners overpaid its tax obligation by $228, in January and February, In all 9

19 instances the amount of the tax overpayment was liquidated. The precise amount of the overpayment was based on the Supreme Court decision in Willow Bend as followed by the Board of Supervisors in its settlement resolution and as embodied in the Agreed Final Judgment in each of the four cases. This Court has typically stated that prejudgment interest is only allowed in cases where the amount is liquidated. See, e.g., Coho Resources, Inc. v. McCarthy, 829 So. 2d 1, 19 (Miss. 2002); Moeller v. American Guarantee & Liability Ins. Co., 812 So. 2d 953, 958 (Miss. 2002); Aetna Cas. & Surety Co. v. Doleac Elec. Co., Inc., 471 So. 2d 325, 331 (Miss. 1985). The general rule in this Court has been that a party must make a proper demand in its pleading for prejudgment interest. (Cite cases). When the four cases now before the Court were appealed from the Harrison County Board of Supervisors, no demand for prejudgment interest was made. The Agreed Final Judgment in each of the four cases establishing the amount of tax overpayment included retention of jurisdiction by the Court to consider costs and/or interest, if any in each of the cases. A motion was then made to award costs and prejudgment interest. Although the general rule has been that prejudgment interest must be demanded in a complaint, a succession of Mississippi Supreme Court cases indicate that demand for prejudgment interest in pleadings is to be liberally construed. Arcadia Farms Partnership v. Audubon Insurance Company, 77 So. 3d 100, 104 (Miss. 2012) (complaint demand for compensatory damages, including interest, sufficient to put defendant on notice; trial court abused discretion by not allowing amendment to include specific demand); 10

20 Upchurch Plumbing, Inc. v. Greenwood Utilities Commission, 964 So. 2d 1100, 1118 (Miss. 2007) (M.R.C.P. 8 requires demand for prejudgment interest, but not the specific date from which alleged due); Gulf City Seafoods, Inc. v. Oriental Foods, Inc., 986 So. 2d 974, (Miss. Ct. App. 2007), cert. denied, 987 So. 2d 451 (Miss. 2008) (complaint did not demand prejudgment interest in words but request for $5, in interest was sufficient to provide notice that prejudgment interest was sought); Gill v. Gipson, 982 So. 2d 415, (Miss. Ct. App. 2007), cert. denied, 981 So. 2d 298 (Miss. 2008) (no pleading requested prejudgment interest; stipulation as to amount in dispute and date due with reference that defendants do not admit prejudgment interest should be awarded; court held that prejudgment interest was tried by express or implied consent of parties). But see Bailey Brake Farms, Inc. v. Trout, 116 So. 3d 1064, (Miss. 2013) (plaintiffs not entitled to prejudgment interest; request for general relief in a complaint seeking equitable relief would not give the defendant notice of a claim for prejudgment interest ); Mississippi Department of Human Services v. McNeel, 10 So. 3d 444, 460(Miss. 2009) (complaining party never requested prejudgment interest and therefore waived). Appellants here urge the Court to follow the more liberal construction of the necessity of demand in the pleading, and allow prejudgment interest in these cases. The general rule in Mississippi has been that an award of prejudgment interest is in the discretion of the trial judge. See. e.g., Stockstill v. Gammill, 943 So. 2d 35, 50 (Miss. 2006). That discretion, pursuant to Miss. Code , extends to setting the rate of 11

21 interest, whether the interest be compound or simple and the date from which prejudgment interest should commence. See, e.g. Guardianship of Duckett v. Duckett, 991 So. 2d 1165, 1182 (Miss. 2008) ( gives trial court discretion to award simple or compound interest); McNeel v. Miss. Dept. of Human Services, 99 So. 3d 244, 247 (Ms. Ct. App. 2012). Miss. Code provides that the trial judge may not award prejudgment interest prior to the date of filing of the complaint. In each of the four cases here, the appeal was filed prior to the date of payment of the taxes in question. For example, in Case No CA-00062, the appeal was filed on November 22, 2011 (R. 15). The tax overpayment was made during January 27 to February 7, 2012 (R ). Appellants seek prejudgment interest from the date of the tax overpayment in each instance. The circuit court denied prejudgment interest because: (1) Appellants did not request prejudgment interest in their notice of appeal; and (2) Miss. Code does not provide for interest on a refund for overpayment of taxes. (R. 364). Appellants acknowledge that there was no request for prejudgment interest in their notice of appeal, but direct the Court s attention to the more liberal construction of that requirement in recent cases, and urge the Court to apply that construction in this case. The Gulf M. & O.R. Co. v. Webster County, 13 So. 2d 644 (Miss. 1943) case which disallows interest on a refund for overpayment of taxes is over 70 years old. In the interim, this Court has held in the context of post judgment interest that the state and its political subdivisions are subject to the same requirements as to payment of costs and interest as 12

22 private litigants. See Mississippi Department of Human Services v. McNeel, 10 So. 3d 444, 459 (Miss. 2009): the specific language of Rule 37 of the Mississippi Rules of Appellate Procedure shifts the burden to the State and its political subdivision to provide explicit statutory exceptions to the new general rule that the State and [its] political subdivisions must pay the same costs and interest as individual or corporate appellants who lose their appeals, citing City of Jackson v. Williamson, 740 So. 2d 818, (Miss. 1999) There is no rationale to distinguish between prejudgment interest and post judgment interest. In the case of an ad valorem tax appeal, awards the taxing authority 10% damages on the amount in controversy. But no provision is made for the taxpayer who is successful. The fact is that in this case Harrison County had the use of Appellants over payments in each of the four cases from one to four years. Appellants urge the Court to hold that the circuit court abused its discretion in not making an award of prejudgment interest. The Court should reverse the ruling of the circuit court denying prejudgment interest and remand this case with instructions that prejudgment interest be awarded in accordance with Miss. Code CONCLUSION The Court should reverse the lower court and remand with instructions to allow recovery of bond premium expenses as costs and to award prejudgment interest in accordance with Miss. Code

23 DATED: June 8, Respectfully submitted, s/ John G. Corlew JOHN G. CORLEW (MSB # 6526) Attorney for Appellants OF COUNSEL: John G. Corlew (MSB #6526) Kathy K. Smith (MSB #10350) Lynn Wall (MSB # 99552) CORLEW MUNFORD & SMITH PLLC 4450 Old Canton Road, Suite 111 (39211) Post Office Box Jackson, MS Phone: Fax: jcorlew@cmslawyers.com 14

24 CERTIFICATE OF SERVICE I, John G. Corlew, attorney for the Appellants, certify that the foregoing has been filed electronically with the Clerk of Court and thereby served on the following persons: Timothy C. Holleman Patrick T Guild Boyce Holleman & Associates rd Avenue Gulfport, MS tim@boyceholleman.com patric@boyceholleman.com and I hereby certify that I have served by electronic mail the following non-mec participants: Honorable Christopher L. Schmidt This the 8th day of June, /s/ John G. Corlew JOHN G. CORLEW 15