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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 96-CA-00129 COA GERALD L. BURGE v. CARL A. LOZIER AND THE STATE OF MISSISSIPPI APPELLANT APPELLEES

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES: NATURE OF THE CASE: TRIAL COURT DISPOSITION: 01/30/96 HON. R. I. PRICHARD III PEARL RIVER COUNTY CIRCUIT COURT EDWARD H. STEVENS GLENN LOUIS WHITE WILLIAM L. DUCKER CIVIL - OTHER APPELLANT ORDERED TO PAY $10,000 REFUND OF APPEARANCE BOND PREMIUM AFFIRMED IN PART AND REVERSED AND RENDERED IN PART- 12/16/97

DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED:

2/4/98

BEFORE THOMAS, P.J., DIAZ, AND KING, JJ. THOMAS, P.J., FOR THE COURT: The Circuit Court of Pearl River County ordered that Gerald L. Burge d.b.a. Burge Bonding, Inc. refund criminal defendant Carl A. Lozier a premium paid for an appearance bond and also entered other directions to be discussed herein. Aggrieved, Burge appeals assigning four issues as error: I. THE CIRCUIT COURT ERRED IN IT'S ORDER OF OCTOBER 7, 1994, WHEREIN THE APPELLANT, GERALD L. BURGE, WAS ORDERED TO PAY TO THE CRIMINAL DEFENDANT, CARL A. LOZIER, THE SUM OF TEN THOUSAND DOLLARS AS A REFUND OF A PREMIUM PAID TO GERALD L. BURGE FOR AN APPEARANCE BOND

IN THE SUM OF ONE HUNDRED THOUSAND DOLLARS, BECAUSE GERALD L. BURGE, APPELLANT, WAS NOT A NAMED PARTY TO THE PROCEEDINGS, WAS NOT SERVED WITH PROCESS AND THE CIRCUIT COURT THUS LACKED JURISDICTION. GERALD L. BURGE WAS THEREFORE DENIED DUE PROCESS. II. THE JUDICIAL INTERFERENCE IS A CONSTITUTIONALLY PROHIBITED IMPAIRMENT OF CONTRACT. III. THE APPELLANT, GERALD L. BURGE, IS ENTITLED TO AN AWARD OF ATTORNEY'S FEES AND COSTS FROM THE PRESIDING JUDGE PURSUANT TO THE LITIGATION ACCOUNTABILITY ACT OF 1988. IV. AN ORDER WHICH IS THE EQUIVALENT OF A MONEY JUDGMENT, CIVIL IN NATURE, CANNOT ISSUE FROM A CRIMINAL PROCEEDING.

Our supreme court by order dated September 11, 1995 dismissed Burge's motion against the State of Mississippi for lack of jurisdiction. The Court also dismissed Burge's motion for an award of attorney's fees and costs pursuant to the Litigation Accountability Act of 1988. Therefore, Issue III need not be discussed. Finding merit to Burge's first assignment of error, we reverse and render in part. We need only discuss the first assignment of error. FACTS Carl A. Lozier was indicted on March 18, 1994, and on that date, his bond was erroneously set on the docket as being $100,000, instead of what should have been the correct amount of $200,000. On March 23, 1994, the State, upon learning of the incorrect bond setting, filed a motion to increase the bond, and the court entered an order directing that Lozier's bond be raised to $200,000 in conformity with the court's original order. The sheriff's office inadvertently listed Lozier's bond as $100,000. On June 29, 1994, Lozier purchased an appearance bond in the amount of $100,000 from Gerald L. Burge d.b.a. Burge Bonding, Inc. for a premium to be paid in the sum of $10,000, and Lozier claimed he also paid a two-percent bond tax in the amount of $2,000. On September 26, 1994, upon Lozier's appearance in Pearl River County Circuit Court, his bond was revoked because the $100,000 amount was not the correct bail, and he was surrendered into custody by Burge. Lozier was free on bond for a total of ninety-one days. On October 7, 1994, the circuit court entered an order to return the $2,000 bond tax and ordered that it be paid to Lozier personally by the Pearl River County Circuit Clerk. The court also ordered that the $10,000 bond premium paid to Burge be returned to Lozier. We are unable to ascertain how this order came about being entered. There is no motion in the sparse record before us wherein Lozier formally, by either written or oral motion, requested assistance in the matter of his dealings with Burge regarding the bond. The order itself simply states that it is predicated on motion made ore tenus. Burge was not given notice nor an opportunity to be heard on the action taken by the trial court on October 7, 1994. Thereafter, Burge filed a motion seeking relief from this order, and a contested hearing was ultimately held before the trial court. Burge testified at the relief hearing and stated that he took a mortgage on Lozier's restaurant and the

restaurant equipment and also took another mortgage on his home in Louisiana. Burge stated that he posted the two thousand dollar bond tax for Lozier out of his own pocket and then bailed Lozier out of jail. Burge then went to Lozier's house to pick up a big screen television set that went along with the mortgage on the restaurant equipment. Burge testified that approximately two or three weeks later, he went to New Orleans to meet Lozier. He stated that Lozier gave him five thousand dollars in a brown paper bag. Burge stated he wrote Lozier a receipt on a business card for five thousand dollars. The receipt was not dated. Burge wrote a receipt to himself signed by Lozier acknowledging that Lozier gave Burge five thousand dollars. This receipt was also not dated. At the hearing, Lozier produced his receipt from Burge which had the amount of fifteen thousand dollars instead of five thousand dollars. Burge claimed the fifteen versus five thousand listing was a forgery. Lozier testified that he paid two thousand dollars to Burge for the bond tax. Lozier testified that he paid a part of his bond premium by lump sum of five thousand dollars at one time and also paid another lump sum of four thousand dollars on a later date. Lozier also stated that his father-in-law then paid Burge one thousand dollars. Lozier then testified that he paid an additional five thousand dollars to Burge on a later date towards the second bond premium to cover the added $100,000 bond. Lozier states that this fifteen thousand dollar amount is reflected in his receipt from Burge. Lozier contends that he put up seventeen thousand dollars total; two thousand for the bond tax, ten thousand for the first bond premium, and five thousand towards the second bond premium. Lozier also testified that a big screen television set, VCR, bracelet, Rolex watch, and a chain were also given to Burge as collateral. Lozier did not get a receipt for any of the property. Burge admitted to taking the television set but denied ever having received any other property from Lozier. Lozier stated that Burge sought to keep the entire fifteen thousand dollars in return for releasing Lozier's mortgaged property in Louisiana. Based on highly contested and convoluted facts, the trial court found that Lozier had in fact paid a total of ten thousand dollars to Burge. The trial court's total included five thousand dollars in cash and the value of the big screen television set. The trial court ordered that Burge return this ten thousand dollar amount to Lozier. The trial court also ordered that the $2,000 bond tax be returned to Lozier. Furthermore, the trial court found that Lozier did not put on proof beyond a preponderance of the evidence to show that Burge had the VCR, Rolex watch, gold chain, and bracelet. Therefore, the trial court did not order that these items or their monetary equivalent be returned to Lozier. ANALYSIS I. THE CIRCUIT COURT ERRED IN IT'S ORDER OF OCTOBER 7, 1994, WHEREIN THE APPELLANT, GERALD L. BURGE, WAS ORDERED TO PAY TO THE CRIMINAL DEFENDANT, CARL A. LOZIER, THE SUM OF TEN THOUSAND DOLLARS AS A REFUND OF A PREMIUM PAID TO GERALD L. BURGE FOR AN APPEARANCE BOND IN THE SUM OF ONE HUNDRED THOUSAND DOLLARS, BECAUSE GERALD L. BURGE, APPELLANT, WAS NOT A NAMED PARTY TO THE PROCEEDINGS, WAS NOT SERVED WITH PROCESS AND THE CIRCUIT COURT THUS LACKED JURISDICTION. GERALD L. BURGE WAS THEREFORE DENIED DUE PROCESS.

Burge contends that the circuit court wrongfully denied him both substantive and procedural due process when it entered an order which was, in effect, a money judgment against him when he was not a party to the criminal litigation and was afforded neither notice nor a hearing. Burge argues that the circuit court lacked jurisdiction over him. Lozier contends that the circuit court had the proper jurisdiction to order the refund based upon Rule 6.02 E of the Uniform Circuit and County Court Rules. Rule 6.02 E states that the circuit judge has the discretion to waive or modify any of the requirements of the bail rule, except for the collection of the fee. The general law is stated in 8 Am. Jur. 2d Bail and Recognizance

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