E-Filed Document Mar 4 2024 11:01:00 2023-EC-01149-SCT Pages: 30

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

DAVID L. ARCHIE PETITIONER/APPELLANT

VS. NO. 2023-EC-01149-SCT

ANTHONY “TONY” SMITH RESPONDENT/APPELLEE

ON APPEAL FROM THE CIRCUIT COURT OF

THE FIRST JUDICIAL DISTRICT OF
HINDS COUNTY, MISSISSIPPI

BRIEF OF RESPONDENT/APPELLEE, ANTHONY “TONY” SMITH

Warren L. Martin, Jr., MSB 101528

Warren L. Martin, Jr., P.A.
351 Edgewood Terrace Drive
Jackson, Mississippi 39206
Telephone: (769)257-6052
Email: attywarrenmartin@gmail.com

Attorney for Respondent/Appellee

Anthony “Tony” Smith
 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

DAVID L. ARCHIE PETITIONER/APPELLANT

VS. NO. 2023-EC-01149-SCT

ANTHONY “TONY” SMITH RESPONDENT/APPELLEE

CERTIFICATE OF INTERESTED PARTIES

The undersigned counsel of record for Appellee certifies that the following listed parties

have an interest in the outcome of this case. These representations are made in order that the

Justices of this Court may evaluate possible disqualifications or recusal.

David L. Archie, Petitioner/Appellant

Jacqueline Amos, former Respondent/Appellee

The Hinds County Democratic Executive Committee, former Respondent

Sandra McCall, former Co-Appellee

Anthony “Tony” Smith, Appellee

Toni Johnson, former Co-Appellee

Election Systems & Software (ES&S), former Respondent

Hinds County Circuit Clerk Zack Wallace, former Co-Appellee

Danny E. Cupit, Attorney for Jacqueline Amos, former Respondent/Appellee

Samuel L. Begley, Attorney for Sandra McCall, former Co-Appellee

Pieter Teeuwissen, Attorney for Zack Wallace, former Co-Appellee

Warren L. Martin, Jr., Attorney for Anthony “Tony” Smith Appellee

Lisa M. Ross, Attorney for Toni Johnson, former Co-Appellee

ii
Matthew Wilson, Attorney for David L. Archie Petitioner/Appellant

Bernetta Garrett-Levison, Attorney for David L. Archie Petitioner/Appellant

The Honorable Barry Ford, Special Circuit Court Judge

This the 4th day of March, 2024.

/s/ Warren L. Martin, Jr.

Warren L. Martin, Jr., MSB 101528
Warren L. Martin, Jr., P.A.
351 Edgewood Terrace Drive
Jackson, Mississippi 39206
Telephone: (769)257-6052
Email: attywarrenmartin@gmail.com
Attorney for Co-Appellee Anthony “Tony” Smith

iii
 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

DAVID L. ARCHIE PETITIONER/APPELLANT

VS. NO. 2023-EC-01149-SCT

ANTHONY “TONY” SMITH RESPONDENT/APPELLEE

REQUEST FOR ORAL ARGUMENT

Pursuant to Rule 39, Miss. R. App. P., Respondent/Appellee respectfully submits that this

is an election dispute and that due to the expedited nature of this case, oral argument is not

needed.

iv
 TABLE OF CONTENTS
Page

CERTIFICATE OF INTERESTED PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF CASES, STATUTES AND OTHER AUTHORITIES CITED . . . . . . . . . . . . . . vii

STATEMENT OF ISSUES PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1. Whether Miss. Code Ann. §1-3-67 Applied to Relieve the Petitioner of the . . . . 1
Duty to File His Petition Timely

2. Whether the Office of the Hinds County Circuit Clerk Was, in Fact, . . . . . . . . . 1
Closed on September 7, 2023, Preventing the Petitioner from Timely Filing
His Petition for Judicial Relief

STATEMENT OF ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Nature of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Course of Proceedings and Disposition in the Appellate Court Below . . . . . . . . . 1

C. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT ..........................................................7

I. THE PETITIONER WAS NOT DENIED A CONSTITUTIONAL RIGHT . . . . . 7

II. MISS. CODE ANN. §1-3-67 DID NOT APPLY TO RELIEVE . . . . . . . . . . . . . 7

PETITIONER FROM FILING HIS PETITION TIMELY

A. September 7, 2023, Was Not Any Other Day When the . . . . . . . . . . . . . . 9

Courthouse or the Clerk’s Office Was, In Fact, Closed

B. Section 1-3-67 Applies Only When it is Impossible to File . . . . . . . . . . 11

on the Terminal Day

v
 C. Petitioner Could Have Filed His Petition on the Afternoon of . . . . . . . . 12
September 7, Under the Mississippi Rules of Civil Procedure
and Court Precedent

III. THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT THE . . . . . . . . . . . . 14

SPECIAL JUDGE’S RULING

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

vi
 TABLE OF CASES, STATUTES AND OTHER AUTHORITIES CITED
CASES Page

Boyd v. Tishomingo Co. Democratic Exec. Comm., 912 So.2d 124, 128 (Miss. 2005) . . . . 14, 15

Carter v. Henry, 39 So. 690 (Miss. 1906) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Chandler v. McKee, 202 So.3d 1269, 1270 (Miss. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

Dalton v. Cellulars, Inc., 20 So.3d 1227, 1233-34 (Miss. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . 16

Garner v. State of Mississippi Democratic Exec. Comm., 956 So.2d 906, 908 (Miss. 2007) . . . . 6

Harreld v. Banks, 319 So.3d 1094, 1106 (Miss. 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Holiday v. Devault, 353 So.3d 425, 428 (Miss. 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Joffe & Mankowitz v. Niagra Ins. Co., 116 Md. 155 (1911) . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Jones v. Southern Ins. Co., 38 F. 19 (1889) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Knight v. Public Employees’ Retirement System, 108 So.3d 912 (Miss. 2012) . . . . . . . . . . . . . . 15

Marlboro Shirt Co. v. Whittington, 195 So.2d 920 (Miss. 1987) . . . . . . . . . . . . 10, 11, 12, 18, 20

McQuinton v. Archie, 311 So.3d 1147 (Miss. 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Meredith v. Clarksdale Democratic Executive Committee, 340 So.3d 315 (Miss. 2022) . . . . 7, 14

Meridian National Bank v. Hoyt Bros. Co., 21 So. 12, 14 (Miss. 1986) . . . . . . . . . . . . . . . . . . . 13

Parkman v. Mississippi State Hwy. Comm’n, 250 So.2d 651 (Miss. 1971) . 11, 12, 15, 17, 18, 20

Penix v. American Cent. Ins. Co., 106 Miss. 145 (1913) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Phoenix Ins. Co. v. Schwartz, 41 S.E. 240 (Ga. 1902) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Public Employees’ Retirement System v. Howard, 905 So.2d 1279 (Miss. 2005) . . . . . . . . . . . 15

Roman Catholic Diocese v. Morrison, 905 So.2d 1213, 1220-21 (Miss. 2005) . . . . . . . . . . . . . . 6

Schmidt v. Catholic Diocese of Biloxi, 185 So.3d 814 (Miss. 2009) . . . . . . . . . . . . . . . . . . . . . . . 6

Shannon v. Henson, 499 So.2d 758, 762 (Miss. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Smith v. Hollins, 905 So.2d 1267, 1270 (Miss. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Sumner v. City of Como Democratic Executive Committee, 972 So.2d 616, 618 (Miss. 2018) . . 8

vii
Thomas v. Bolivar Cty., No. 2022-CA-000445-SCT, 2023 WL 576811 (Sept. 7, 2023) . . . . . . . 8

Waters v. Gremi, 907 So.2d 307, 325 (Miss. 2005). ..................................8

STATUTES

Miss. Code 1942, §705 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Miss. Code Ann. §1-1-67 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Miss. Code Ann. §1-3-7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

Miss. Code Ann. §1-3-27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Miss. Code Ann. §1-3-67 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14

Miss. Code Ann. §23-15-927 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 3, 5, 7, 9, 10, 11, 12, 13, 14

Miss. Code Ann. §23-15-931 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Miss. Code Ann. §25-1-99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 13

RULES

Rule 16(b)(5), Miss. R. App. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Rule 39, Miss. R. App. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Rule 1, Miss. R. Civ. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Rule 5(e)(1), Miss. R. Civ. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Rule 77(c), Miss. R. Civ. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Rule 81, Miss. R. Civ. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

OTHER AUTHORITIES CITED

Black’s Law Dictionary, Abridged (7th Ed. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

U.S. CONST., amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

MISS. CONST. Art. 3, §24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

MISS. CONST. Art. 4, §72 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

viii
 STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. Whether Miss. Code Ann. §1-3-67 applied to relieve the Petitioner of the duty to

file his Petition timely.

2. Whether the office of the Hinds County Circuit Clerk was, in fact, closed on

September 7, 2023, preventing the Petitioner from timely filing his Petition for Judicial Relief.

STATEMENT OF ASSIGNMENT

As this case involves an election dispute, the Supreme Court should retain jurisdiction

pursuant to Rule 16(b)(5), Miss. R. App. P.

STATEMENT OF THE CASE

A. Nature of the Case

This case involves an election dispute brought pursuant to Miss. Code Ann. §23-15-927.

B. Course of Proceedings and Disposition in the Appellate Court Below

On August 28, 2023, the Petitioner, David Archie1, timely filed notice with the Hinds

County Democratic Executive Committee of his challenge of the election for Hinds County

Supervisor, District Two in the first Democratic Primary held on August 8, 2023. [R. 31] Before

the scheduled hearing with the executive committee, the Petitioner filed on September 8, 2023,

his Petition for Judicial Review in the Hinds County Circuit Court pursuant to Miss. Code Ann.

§23-15-927, naming as Defendants Anthony “Tony” Smith, Jacqueline Amos, Toni Johnson,

Sandra McCall, Hinds County Circuit Clerk Zack Wallace, the Hinds County Democratic

Executive Committee and Election Systems & Software (ES&S). [R. 9]

Acting pursuant to statute, the Presiding Justice, in the absence of the Chief Justice,

designated the Honorable Barry Ford as Special Judge to hear the contest. [R. 140]

1
The parties will be referred to as Petitioner or Respondent as referenced in the Final
Judgment of the Special Judge or Archie or Smith.

1
 With no process having been issued or served, the Special Judge, at the request of the

Petitioner Archie, scheduled a hearing in this cause for September 26, 2023. [R. 142, 153]

Respondent/Appellee Jacqueline Amos waived service of process and entered her

appearance on September 19, 2023, and filed her motion to dismiss the petition for lack of

subject matter jurisdiction on grounds that it had not been timely filed as required by Miss. Code

Ann. §23-15-927. The motion was subsequently joined in by Respondents Sandra McCall,

Anthony “Tony” Smith, Zack Wallace and Toni Johnson. [R. 143, 145, 156, 169, 174, 177, 201]

In the alternative to their motions and joinders to dismiss, the respondents each filed motions to

be dismissed as parties as they were improperly joined. [R. 181, 201]

At the September 26, 2023, hearing, the Special Judge duly convened the Hinds County

Election Commission to assist him as advisors as provided in Miss. Code Ann. §23-15-931 and

the hearing was then recessed at the request of new counsel for the Petitioner until September 28,

2023, to allow counsel to prepare. [R. 233, 241, 245]

On September 27, 2023, Petitioner filed his response to Respondent’s motion to dismiss,

acknowledging that Miss. Code Ann. §23-15-927 requires a candidate seeking judicial review of

a primary election contest to file his petition for judicial review within ten (10) days of filing his

complaint with the executive committee, which would have fallen on September 7, 2023, and

that he did not file his petition until September 8, 2023. [R. 185, p. 3 of 7] However, the

Petitioner claimed that the clerk’s office was closed on September 7, 2023, and that Miss. Code

Ann. §1-3-7 permitted him to file his petition on the following, or eleventh, day. Id.

On September 28, 2023, the Court took up the motion to dismiss for lack of subject

matter jurisdiction. [R. 251] After considering factual affidavits submitted by all parties, along

with arguments and memoranda of law submitted by counsel, the Special Judge announced in a

bench opinion his findings that the clerk’s office was, in fact, open on September 7, 2023, and

2
that the petition had not been timely filed as required by Miss. Code Ann. §23-15-927 and

dismissed the petition for lack of subject matter jurisdiction.[R. 209] The bench opinion was

subsequently incorporated into a Final Judgment on October 13, 2023, after being approved as to

form by all counsel.[R. 209]

The Petitioner timely filed his notice of appeal of the trial court’s Final Judgment on

October 18, 2023. [R. 211] Subsequently, the parties entered into a stipulation for an order of

dismissal of Jacqueline Amos, Sandra McCall, Toni Johnson, and Hinds County Circuit Clerk

Zack Wallace pursuant to which this Court entered an order of dismissal of said parties on

November 1, 2023, leaving only as Respondent/Appellee Anthony “Tony” Smith. [R. 226]

C. Statement of Facts

In the first Democratic Primary election on August 8, 2023, Petitioner David Archie lost

his re-election for Hinds County Supervisor District Two to Anthony “Tony” Smith by a vote of

2,810 to 4,687, a margin of 1,877 votes out of a total of 7,497 votes cast. [R. 148] On August 28,

2023, the Petitioner sent an email to the Hinds County Democratic Executive Committee giving

notice of his challenge of the election results. [R. 32] Before the date of the scheduled hearing

before the executive committee, Petitioner filed on September 8, 2023, his Petition for Judicial

Review in the Hinds County Circuit Court pursuant to Miss. Code Ann. §23-15-927. That

section requires that petitions for judicial review be filed within 10 days of the date the election

challenge was filed with the executive committee. In this case, the 10 day time period ran on

September 7, 2023.

On September 7, 2023, the Hinds County government’s computer systems was subject to

cyber attack. [R. 203] The County Administrator, on behalf of the Board of Supervisors, sent an

email to county officials that due to the computer breakdown, county employees could go home

3
at noon on that day, but deferred to individual elected officials with regard to their individual

offices. [R. 203]

The Petitioner claimed that the Circuit Clerk’s office was closed on September 7, and that

pursuant to Miss. Code Ann. §1-3-67, he was entitled to an extra day in which to file his petition

which he filed on September 8, 2023. [R. 9] The Petitioner offered three affidavits to support his

claim that the Circuit Clerk’s office was closed on that day: one from John Taylor, Jr., who stated

he went to the Circuit Clerk’s office [located in the Hinds County Courthouse] at around 12:20

p.m. and found the doors to the Clerk’s office locked and no one present [R. 192-194]; another

from Kathy Sykes, who stated that she arrived at the Clerk’s office at 12:45 p.m. and found the

doors to the office at both entrances locked and the lights at both entrances off and there were no

employees present [R. 192] and the Petitioner who stated he arrived at the Clerk’s office around

3:15 p.m. and found the doors to the office locked and lights off at both entrances. The

Petitioner further stated that he asked if anyone was working at the Clerk’s office and he was told

no. [R. 193]

The Respondents offered the affidavit of the Hinds County Circuit Clerk who stated that

after receiving the notification from the County Administrator, he locked the doors to the Clerk’s

office sometime after noon on September 7, but the office remained open to conduct business, as

the courthouse itself was still open and judges, including Justice Court, were still working.

[R. 203] The Circuit Clerk further stated that the Petitioner made no attempt to contact him on

the afternoon of September 7, even though the Petitioner had his cell phone number. [R. 203]

Further, on the afternoon of September 7, the clerk received and filed orders from two judges and

also filed a new civil complaint. [Id.]

4
 No evidence was presented or claim made that the Circuit Clerk’s office was not fully

open and operational before noon on September 7, or that the Petitioner made any effort to

actually file his petition either before or after noon on September 7.

On the following day, September 8, 2023, while the county’s computer systems were still

inoperable, the Petitioner filed his petition at the clerk’s office where it was marked filed and

entered on the court’s docket sheet, but was not entered into the MEC system until October 12,

2013. [R. 9]

SUMMARY OF THE ARGUMENT

The Petitioner does not dispute that under the provisions of Miss. Code Ann. §23-15-927,

he was obligated to file his Petition for Judicial Review within 10 days of his notice to the Hinds

County Democratic Executive Committee of his election challenge. [R. 185, p. 3 of 7] He

acknowledges that he failed to meet this deadline allegedly because he found the door to the

Clerk’s office closed on the afternoon of September 7, 2023, which was the 10 day filing

deadline, and that under Miss. Code Ann. §1-3-67, he was entitled to an extra day when “the

clerk’s office is in fact closed, whether with or without legal authority . . .”. Id.

Miss. Code Ann. §1-3-67 applies only when it is impossible to file on the terminal day of

a fixed period. It should not be expanded to protect a party who could have filed on the terminal

day, but failed to do so of his on volition.

Since there was no evidence presented that the clerk’s office was not open and fully

operational before noon on September 7, it cannot be said that it was closed on that day.

Accepting the Petitioner’s argument arguendo, the office was, at best, closed only part of that

day. Accordingly, Miss. Code Ann. §1-3-67 did not relieve the Petitioner from filing his Petition

on time.

5
 Further, nothing prevented the Petitioner from filing his Petition with the Circuit Clerk on

September 7, as provided by precedent and the Mississippi Rules of Civil Procedure.

After considering the factual evidence presented, the Special Judge found that the clerk’s

office was, in fact, open on the afternoon of September 7, and that the Petition for Judicial

Review was untimely. [R. 209, 264-265] Under the applicable standard of review of factual

findings by the Special Judge, sitting without a jury, there was substantial evidence to support the

Special Judge’s findings, which should not be disturbed.

In the alternative, even under a de novo standard of review, the Petitioner failed to meet

his burden of showing that the Circuit Clerk’s office was, in fact, closed on September 7, 2023,

and that he was otherwise prevented from filing his petition within the time required.

STANDARD OF REVIEW

In an election contest, the standard of review for questions of law is de novo. Chandler v.

McKee, 202 So.3d 1269, 1270 (Miss. 2016). A decision granting or denying a motion to dismiss

for lack of subject matter jurisdiction is also typically reviewed de novo. Schmidt v. Catholic

Diocese of Biloxi, 185 So.3d 814 (Miss. 2009). However, challenges to subject matter

jurisdiction may be either facial or factual. Schmidt, 18 So.3d at 822. A factual challenge

requires the trial court to resolve one or more factual issues to determine subject matter

jurisdiction. Id.; Roman Catholic Diocese v. Morrison, 905 So.2d 1213, 1220-21 (Miss. 2005).

Findings of fact by the trial judge sitting without a jury are reviewed for manifest error, i.e.,

whether the findings were the product of prejudice, bias, or fraud, or manifestly against the

weight of credible evidence. Garner v. State of Mississippi Democratic Executive Committee,

956 So.2d 906, 908 (Miss. 2007). “A circuit court judge sitting as the trier of fact is given the

same deference with regard to his fact finding as a chancellor, and his findings are safe on appeal

6
when they are supported by substantial credible, and reliable evidence.” Meredith v. Clarksdale

Democratic Executive Committee, 340 So.3d 315, 322 (Miss. 2022).

ARGUMENT

I. THE PETITIONER WAS NOT DENIED A CONSTITUTIONAL RIGHT

The Petitioner spends the first four pages of his brief elucidating on the fundamental

rights under the Due Process Clause of the Fourteenth Amendment to the Constitution assuring

access to the courts and the right to be heard, [Brief of Appellant at 9-13], an argument not even

made in oral argument in the lower court and mentioned only in passing in a response. [R. 190]

Laying aside the question of whether this is an issue that can be raised for the first time on

appeal, it asserts principles with which the Respondent has no disagreement. But they are

irrelevant to the issues in this case, because, as will be shown, the Petitioner was not denied

access to the court or the right to be heard.

The Petitioner’s argument should be made clear. Petitioner is not claiming that he was

denied access to the court to timely file his Petition. His argument is that Miss. Code Ann. §1-3-

67 relieved him from making any effort to file his Petition timely. There is no evidence in the

record of any attempt by the Petitioner to file his Petition on September 7. As will be shown

infra, the Petitioner had the opportunity to file his Petition on September 7; he simply made no

attempt to do so. One can hardly complain of being denied a constitutional right that was never

an attempt to exercise it.

II. MISS. CODE ANN. §1-3-67 DID NOT APPLY TO RELIEVE PETITIONER
FROM FILING HIS PETITION TIMELY

Miss. Code Ann. §23-15-927 provides that petitions for judicial review of a challenge in

primary election disputes must be filed within 10 days of the date the challenge was initially filed

with the party executive committee. This Court has found this provision to be “clear and

7
unambiguous” and “explicitly requires a petition for judicial review to be filed within ten days

after a complaint has been filed with a state or county executive committee.” Chandler v.

McKee, 202 So.3d 1269, 1272. The requirements of this statute have been found to be

mandatory and jurisdictional, “meaning that if the requirement is not fulfilled, the circuit court

lacks subject matter jurisdiction to hear the case.” Holiday v. Devault, 353 So.3d 425, 428

(Miss. 2022); Cf., Sumner v. City of Como Democratic Executive Committee, 972 So.2d 616, 618

(Miss. 2018); Waters v. Gremi, 907 So.2d 307, 325 (Miss. 2005).

The Petitioner is not a naive or unsophisticated lay person. He was the incumbent

Supervisor. He has been involved in the operation of county government for the past 4 years,

approving budgets, negotiating and entering into contracts, adjusting deadlines for construction

delays and penalties. This is not his first experience in election disputes. McQuinton v. Archie,

311 So.3d 1147 (Miss. 2020). He was, on September 7, 2023, represented by counsel in his

petition. He must be presumed with knowing and understanding the importance of deadlines and

of the jurisdictional requirement of filing his petition on time or suffer the fatal consequences of

dismissal. But he offered no evidence that he even attempted to file his Petition timely, but was

prevented from doing so. Instead, he relies on Miss. Code Ann. §1-1-67 to cloak him with an

exemption from even trying to comply with a jurisdictional statute. 2

2
Petitioner cites Thomas v. Bolivar Cty., No. 2022-CA-00445-SCT, 2023 WL 576811 (Sept. 7,
2023), to support an argument that Section 1-3-67 applies even to jurisdictional deadlines.
Respondent does not argue otherwise. The Respondent’s point is that the Petitioner, and his
former counsel, knew or should have known of the importance of timely filing a Petition for
Judicial Review and should have exercised diligence in filing it timely which he could have
done. Instead, Petitioner made no attempt to file on the deadline and instead claims that Section
1-3-67 relived him of the duty to even attempt a timely filing. Thomas, on the other hand, does
support the proposition that “filing” occurs when the pleading is delivered to the clerk, which is
discussed infra.

8
A. September 7, 2023, Was Not Any Other Day When the Courthouse or the Clerk’s
Office Was, In Fact, Closed.

Section 1-3-67 provides that when a time period is prescribed for serving or giving notice,

the day of the event from which the period begins to run shall not be included, but the last day of

the period prescribed shall be included “unless it is a Saturday, a Sunday, or a legal holiday, or

any other day when the courthouse or the clerk’s office is, in fact, closed, whether with or

without legal authority, in which even the period runs until the day which not a Saturday, a

Sunday, a legal holiday, or any other day which the courthouse or the clerk’s office is closed.”

Since there is no dispute that in this case, September 7, 2023, did not fall on a Saturday, a

Sunday, or legal holiday, the dispute centers on whether it fell on “any other day when the

courthouse or the clerk’s office [was], in fact, closed.”

That section provides a method for calculating filing deadlines with fixed periods of time

when the terminal day falls on a day when it is impossible to file on that day. It should not be

used as a refuge for those who could, with the exercise of diligence, have filed on the terminal

day, but failed to do so. As discussed supra, the Petitioner does not contend that he was

prevented from filing his petition within the 10 day jurisdictional requirement of Miss. Code

Ann. §23-15-927. Rather he claims that Section 1-3-27 relieved him of the duty to make any

effort to file his petition within the time prescribed.

By statute, the clerk’s office is required to be open from 8:00 a.m. until 5:00 p.m. on all

business days except certain specified days not applicable here. Miss. Code Ann. §25-1-99. As

noted in the statement of facts, the Petitioner made no claim, nor did he present any evidence,

that the clerk’s office was closed before noon on September 7, 2023. His evidence was limited

to a time period after noon on that date. Even if it is accepted, arguendo, that the Petitioner’s

conclusion that the clerk’s office was, in fact, closed after noon on September 7, because the

9
doors were locked and the lights off, it must be presumed that the office was open at least until

after noon on September 7. Harreld v. Banks, 319 So.3d 1094, 1106 (Miss. 2021)

(“. . . in the absence of proof to the contrary, it will be presumed that public officials performed

their duty in the manner required by law.”) Thus, the office was not closed on the last day of the

10 day time period, but, at best, only part of the day. Since it cannot be said that September 7,

2023, was “any other day when the courthouse or the clerk’s office [was], in fact, closed”, there

is no basis to claim that September 7 should not be included in the 10 day time period in which

the petition should have been filed.

This Court addressed a similar situation in Marlboro Shirt Co. v. Whittington, 195 So.2d

920 (Miss. 1987), a workers’ compensation case. The issue in that case was whether a claimant’s

notice of appeal by petition for review of an attorney referee’s (now Administrative Law Judge)

opinion was timely filed within the statutory and jurisdictional 20 day time period. Id. at 920. At

the time, the statute on computation of time called for the exclusion of the first day, but inclusion

of the last day unless the last day fell on Sunday, in which case the first day would be included in

the computation. Miss. Code 1942, §705. In the Marlboro case, the 20th day fell on Sunday

which required the last day to fall on Saturday. The petition for review was not filed until the

following Monday. The claimant contended that filing the petition for review on the first day

after Saturday and Sunday was sufficient compliance with the 20 day filing rule. Id.,195 So.2d at

921.

This Court rejected that argument, noting that the Workers’ Compensation Commission

offices were open until noon on Saturday which made a timely filing possible and dismissed the

appeal. Id.

In 1906, this Court had the occasion to consider the definition of “day” in the absence o a

statutory definition in connection with a constitutional time limit imposed on the Governor by

10
MISS. CONST. Art. 4, §72, to return a legislative enactment, unsigned by the Governor. Carter

v. Henry, 39 So. 690 (Miss. 1906).

In that case, this Court concluded that the word “day” means a full day of 24 hours. The

reasoning of that case is consistent with Marlboro, that if part of the day is available for filing,

then that day is included as the terminal day.

By analogy, the same rule should apply in this case. Even if, as the Petitioner argues, he

concluded the Clerk’s office was closed on the afternoon of September 7, there is no claim made

that the office was not fully open and operational before noon on that date which provided the

Petitioner a sufficient opportunity to have filed his petition timely.

The Petitioner seeks to construe the language in Section 1-3-67 referring to “any other

day when the courthouse or the clerk’s office is, in fact, closed,” as “any other day [or portions

thereof] when the courthouse or the clerk’s office is, in fact, closed.” The Petitioner seems to

suggest that if the terminal day of a prescribed period falls on a day when the clerk’s office is

closed part of that time, he is entitled to the benefit of Section 1-3-67. Under that construction, if

the terminal day of a prescribed period fell on a regular business day, a party could claim that he

went to the courthouse after 5 p.m. closing time to file his document, but the clerk’s office was

locked, and thereby claim an additional day under Section 1-3-67, since the office was closed

part of “any other day” of the last day. The exception would then become the rule, and statutes

prescribing a mandatory jurisdictional time limit as Section 23-15-927 does, would effectively

become meaningless. Petitioner has cited no authority supporting his construction of Section 1-

3-67.

B. Section 1-3-67 Applies Only When it is Impossible to File on the Terminal Day.

A comparison between Marlboro and Parkman v. Mississippi State Hwy. Comm’n, 250

So.2d 637 (Miss. 1971), a case cited by Petitioner, demonstrates that Section 1-3-67 is limited to

11
occasions where it is impossible to file on the terminal date as opposed to situations where the

party had the opportunity to do so - but didn’t. The appeal in Marlboro was dismissed because

the appellant could have filed his petition for review on the morning of the terminal date, but

made no effort to do so. In Parkman, on the other hand, it was impossible to file on the terminal

date and the court allowed additional time to file.

In Parkman, the courthouse was closed all day on Saturday by action of the Board of

Supervisors as authorized by statute. It was also closed on Sunday by statute. Id., 250 So.2d at

638. Statutory closings on Saturdays and Sundays were considered to be nonjuridicial days, i.e.,

where no valid judicial acts could take place. Id. Therefore, it would avail a party nothing to

appear at the courthouse to file a paper because neither the court, nor clerk, could conduct

business. Id., 250 So.2d at 639. The court in Parkman recognized the difference in that case and

in the Marlboro decision where it was not impossible to file on the terminal day. Parkman, 250

So.2d at 640. The Petitioner has offered no case authority, nor has Respondent found any, in

which Section 1-3-67 was applied to extend a terminal date when it was shown that the party

claiming it could have filed on the terminal date, but failed to do so.

C. Petitioner Could Have Filed His Petition on the Afternoon of September 7, Under
the Mississippi Rules of Civil Procedure and Court Precedent.

Not only could the Petitioner have filed his Petition on the morning of September 7 with a

minimal level of diligence, he could have filed it in accordance to the rules of civil procedure,

and decisions of this Court.

The affidavit of the Circuit Clerk includes a statement which is not disputed in the record.

He stated that although the Petitioner had his cell phone number, the Petitioner did not call him

on September 7, 2023. [R. 204 at ¶9] That omission illustrates another opportunity for the

Petitioner to file his Petition timely which he failed to take.

12
 Miss. Code Ann. §23-15-927 permits appeals from the action or inaction of county

executive committees by fling in the circuit court a petition for review. The statute is silent on

what constitutes a filing in the circuit court.

Pursuant to Rule 81, Miss. R. Civ. P., the Mississippi Rules of Civil Procedure have

limited applicability in election disputes. However, the committee notes and applicable case law

provide that when a statutory provision is silent on a procedural issue, the rules of procedure

apply. Advisory Committee Notes to Rule 81, Miss. R. Civ. P., ¶3; Shannon v. Henson, 499

So.2d 758, 762 (Miss. 1986). See also, R. 1, Miss. R. Civ. P.3

Rule 5(e)(1), Miss. R. Civ. P., provides that the act of filing papers with the court “shall

be made by filing them with the clerk of the court” or with a judge upon permission. In turn,

state statutes as well as Rule 77(c), Miss. R. Civ. P., requires the clerk’s office, with the clerk or

a deputy clerk in attendance, to be open during business hours on all days except Saturday,

Sundays and legal holidays for accepting filings. See also, Miss. Code Ann. §25-1-99. As

discussed in the Advisory Committee Notes to Rule 77, the provision that the courthouse shall be

deemed always open for the filing of papers as provided in that rule and in MISS. CONST.

Art. 3, §24, does not mean that the office must remain physically open, as the filing of papers

may be effectuated under Rule 5(e)(1) and Meridian Nat. Bank, by delivery to the clerk.

From these provisions, even if the clerk’s office was not physically open at the time

Petitioner hypothetically arrived with his Petition for filing on September 7, (a fact not even

asserted in Petitioner’s affidavit), he could (and should) have contacted the clerk and delivered

his Petition as provided in Rule 5(e)(1) which would have perfected his timely filing. Having

3
Even if the current rules of civil procedure are found not to apply to this election dispute
despite the statute’s silence on what constitutes “filing”, an early decision of this Court
extensively reviewed that term and concluded that a “filing’ occurs when a paper is delivered to
the clerk for entry. Meridian Nat. Bank v. Hoyt Bros. Co., 21 So. 12, 14 (Miss. 1986).

13
failed to even attempt to file his Petition on time, the Petitioner should not be able to claim the

protection of Section 1-3-67.

In this case, September 7 was not a nonjuridicial day where no judicial business could be

conducted. In fact, the un-refuted affidavit of the circuit clerk stated that judicial business was

conducted on the afternoon of, September 7, even though the doors were locked. [R. 203]

Further, the doors were locked only after noon on September 7. Therefore, Section 1-3-67

should have no application under the facts of this case.

Petitioner’s post hoc claim that Section 1-3-67 relieves him of meeting a jurisdictional

imperative should not excuse his failure to comply with the requirement of Section 23-15-927,

under the circumstances here where the office was clearly open at least part of the last day of the

10 day period.

III. THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT

THE SPECIAL JUDGE’S RULING

The central issue posed in the Petitioner’s appeal is the [consequential] question of

whether the circuit clerk’s office was closed on September 7, 2023. [Brief of Appellant at 14] A

more exacting refinement of the question is whether the clerk’s office was “in fact” closed on

September 7, 2023. Miss. Code Ann. §1-3-67.

Assuming that Section 1-3-67 even applies in this situation, the question became a factual

one for the Special Judge, i.e., whether the clerk’s office was “in fact” closed. In this appeal, the

issue is whether the Special Judge was in manifest error in concluding that the Clerk’s office was

open on September 7, and whether there was substantial evidence to support the Special Judge’s

conclusion.

On appeal, this Court reviews the factual findings of the trial court sitting without a jury

upon the substantial evidence manifest error standard. Meredith, supra.; Boyd v. Tishomingo Co.

14
Democratic Exec. Comm., 912 So.2d 124, 128 (Miss. 2005) (when a trial judge sits as a fact

finder, his or her findings are reviewed for manifest error and the verdict will not be disturbed

unless it “is a result of prejudice, bias, or fraud, or is manifestly against the weight of credible

evidence.”) (Citations omitted) That is, this Court will only reverse a trial court’s factual

findings when there is no substantial credible evidence to support its findings, unless the court

was manifestly wrong, or applied a clearly erroneous legal standard. Smith v. Hollins, 905 So.2d

1267, 1270 (Miss. 2005).

This Court has defined substantial evidence as “something more than a scintilla or

suspicion” and “such relevant evidence as reasonable minds might accept as adequate to support

a conclusion.” Public Employees’ Retirement System v. Howard, 905 So.2d 1279, 1285 (Miss.

2005); Knight v. Public Employees’ Retirement System, 108 So.3d 912, 915 (Miss. 2012).

As will be discussed, not only is there substantial evidence to support the Special Judge’s

conclusion, it is the only conclusion that could reasonably be found from the evidence presented.

The parties do not dispute that on September 7, 2023, county computer systems were

subject to a cyber-attack. The County Administrator of the Board of Supervisors notified county

offices that employees could go home at noon on that date, but deferred to elected officials

regarding their individual offices. [Affidavit of Wallace, R. 203] Acting pursuant to that

notification, the Hinds County Circuit Clerk locked the doors to his office sometime after noon

on September 7, [Id.] a fact confirmed by the affidavits offered by the Petitioner.

It is at that point that the parties’ assertion of facts diverge.

In his brief [pp. 18-19], the Petitioner takes certain liberties in his analysis of the

competing affidavits which are not supported by the facts presented. He first references the

affidavit of Kathy Sykes who stated that upon arriving at the clerk’s office on the afternoon of

September 7, she found the lights out at both entrances and the doors locked at both entrances.

15
[R. 192] Then she stated that there were no employees present and that the clerk was not present.

[Id.] Accepting that the lights were out and the doors were locked at both entrances, facts which

she could observe on personal knowledge, she has stated no facts supporting her conclusions that

no one, including the clerk, were present since she could not get past locked doors.

A similar defect exists in the affidavit of John Taylor. [R. 194] He found the doors locked

and concluded that “no one was there.” No facts supported that conclusion if he could not enter

the office.

Finally, Mr. Archie arrived and stated that he found the doors locked and the lights off at

both entrances. He then asked if anyone was working at the clerk’s office and he was told no.

[R. 193] That statement is rank hearsay and un-attributed. [R. 203]

Thus, the only facts established by those 3 affidavits upon personal knowledge were that

sometime after noon on September 7, the doors to the clerk’s office were locked and the lights at

the entrances were off. Facts which the clerk in his affidavit did not dispute. The remaining

elements to the Petitioner’s affidavits are based upon their conclusions, conjecture and/or

hearsay. By contrast, the clerk’s affidavit stated, without contradiction, that his office was open

for business and, in fact, conducted business on the afternoon of September 7.

The Petitioner attacked the clerk’s affidavit as “self-serving” and “conclusory”, [Brief of

Appellant at 20] Conclusory is defined as “expressing a factual inference without stating the

underlying facts on which the inference is based.” Black’s Law Dictionary, Abridged (7 th Ed.

2000). Respondent agrees with the Petitioner’s point [Brief of Appellant at 20] that the Court

may reject conclusionary affidavits;.Dalton v. Cellulars, Inc., 20 So.3d 1227, 1233-34 (Miss.

2009), and should. But it is the Petitioner’s affidavits and not the clerk’s affidavit which are

conclusory. The Archie affidavits offer nothing to support their conclusion that no one was

present in the clerk’s office on September 7 and that the office was, in fact, closed other than

16
locked doors and entrance lights off, On the other hand, the clerk’s affidavit gave specific

examples based on personal knowledge of business conducted in his office on the afternoon of

September 7 to support his conclusion that his office was open for, and did conduct, business on

that afternoon. There are simply no facts in the record to support the claim that despite the fact

that the doors were closed, the clerk’s office was not open for, and conducting, business.

There is certainly substantial evidence to support the Special Judge’s conclusion that the

clerk’s office was not, in fact, closed.

In addition to the Parkman case cited earlier in this brief [Brief of Appellant at 15], the

Petitioner cites Penix v. American Cent. Ins. Co., 106 Miss. 145 (1913); Jones v. Southern Ins.

Co., 38 F. 19 (1889); and Joffe & Mankowitz v. Niagra Ins. Co., 116 Md. 155 (1911); three turn

of the century cases involving fire insurance policy disputes to support the proposition that if an

entity was not “open for business” then, ipso facto, it is closed. [Brief of Appellant t 15] Stated

conversely then, if it is “open for business”, it is not closed. While these cases venture further

afield than necessary under these facts, they will be addressed, simply to illustrate they are not

compelling authority for the proposition for which they were cited, and to the contrary, are

consistent with the Special Judge’s findings.

Each of these cases involved the interpretation of clauses in fire insurance policies on

mercantile stores requiring the insureds to keep their accounting books secure from fire when the

stores were not open for business. Each of those cases - like the central issue in this case - turned

on the specific facts to determine if, in fact, the store was “open for business” at the time the fire

loss.

In the Penix case, the only Mississippi case cited, the court found that at the time of the

fire, the store manager and sole employee had locked the doors to the business and gone to

another location in the city while leaving the sales books unprotected, which made it physically

17
impossible for any business to be conducted while he was away, so coverage was denied. Penix,

63 So. at 348.

In the Jones case, which Petitioner noted was cited favorably in Penix [Brief of Appellant

at 17], the store doors were typically locked at 6 p.m. to keep out undesirables, but by custom and

practice, remained open until 8 or 9 p.m. for anyone seeking to do business. Jones, 38 F. at 20.

On the night of the fire, the doors were locked as the custom, and the manager was next door

eating oysters. The court found as a fact that the store was open. It specifically noted that “[t]he

circumstances that the door was locked so that customers had to knock for admission has no

significance in the light of the evidence.” Id., 38 F. at 23. Judgment was entered for the plaintiff

for the amount of the policy.

In Joffe, the employees had closed the store and left for lunch while leaving the sales

books unprotected, intending to return after lunch. The fire occurred during their absence. The

court held that coverage should be denied, finding that it could not be said that a business was

actually open for business when it was actually locked and no one present to attend the business.

Each of those cases were decided on the fact issue of whether business could or could not

have been conducted on the premises at the time of the fire. In Penix, the court found that since

the sole employee was across town, it was impossible for the store to be doing business at the

time of the fire and coverage was denied. In Jones, the court concluded that even though the

doors were locked, business could have been conducted as the manager was next door and

customers were in the habit of knocking on the doors after nightfall. In Joffe, the employees

were not available to conduct business at the time the fire broke out.

In this case, the Special Judge found, based on undisputed evidence, that since the Clerk’s

office was conducting judicial business on the afternoon of September 7, it was not closed.

18
 The Petitioner failed to cite another in this line of cases construing the “iron safe” clause

in fire insurance contracts in effect at the time, which is slightly more analogous to this case than

the cases cited by Petitioner. In Phoenix Ins. Co. v. Schwartz, 41 S.E. 240 (Ga. 1902) (overruled

on other grounds, 615 S.E. 704 (Ga. 1908), the plaintiff’s store and merchandise were destroyed

by fire which originated during normal business hours in another store. Id., 41 S.E. at 241. The

fire spread faster than anticipated causing a wall to the plaintiff’s building to collapse before the

sales records could be moved to a fire proof location. Because the owner had not placed the sales

books in its fire proof safe upon the approaching fire, coverage was denied.

On appeal, the court found that in ordinary circumstances when the store was not open for

business such as Sundays, holidays or after hours, and a fire occurred and the records were not

properly stored, a denial of coverage would be justified, as the clear intent of the iron safe clause

was to protect the books during the absence from the store by those charged with operating the

business; but in an emergency, there was no hard and fast rule on when a business ceases to be

open for business. Id. at 241. The court concluded that under the facts of that case, it was

improper to conclude that the business was closed at the time fire struck the building.

Similarly, in this case, county offices were confronted with an emergency. As a result,

some offices were completely closed and some remained open or partially open. The clerk’s

office was partially open, because, as the clerk’s affidavit stated, the courts remained open and

were conducting business. [R. 204] As the Phoenix case illustrated, in such circumstances, no

hard and fast rule should apply. Just because the clerk’s doors were locked and the entrance

lights off does not inevitably lead to a conclusion the office was, in fact, closed for business, as

indeed it was not.

The Petitioner’s attempts to analogize the above cited cases to this case, omits one

salient, but uncontroverted, fact. In the cases discussed above, coverage was ordered when

19
business could have been conducted at the time of the fire, and coverage was denied when it was

impossible to be doing business at the location at the time of the fire. The Parkman and

Marlboro cases reflect the same outcome - when the notice could have been filed on the terminal

day, but wasn’t, the appeal was dismissed, but when it was impossible to file the notice on the

terminal day, the appeal was allowed. It bears repeating again, that in this case, it is undisputed

that on the afternoon of September 7, the clerk’s office was, in fact, conducting judicial business.

Equating “doing business” with the office being open as the Petitioner postulated [Brief of

Appellant at 15] validates the Special Judge’s conclusion that the clerk’s office was open on the

afternoon of September 7.

The premise of the Petitioner’s claim that the clerk’s office was closed on September 7, is

stated in his brief. “. . . on September 7, 2023, the doors to both entrances of the circuit clerk’s

office were locked, the lights were off, and neither the circuit clerk, nor any of his employees

were present..” [Brief of Appellant at 18] The flaw in that statement reflects the flaw in the

Petitioner’s entire case. He has produced no evidence to support that conclusion and he simply

ignores the uncontroverted fact in the clerk’s affidavit that business was, in fact, conducted by

the clerk’s office on the afternoon of September 7. The Petitioner had the burden of proof in

establishing subject matter jurisdiction. He cannot meet that burden by ignoring uncontroverted

facts and relying on conclusionary affidavits, supposition and conjecture. The Special Judge

reviewed the competing affidavits and came to the only conclusion that could be drawn: that

despite the locked doors, the clerk’s office conducted judicial business on the afternoon of

September 7, and was therefore not closed. As a result, the Petition was not timely filed.

The Petitioner has made no showing that the Special Judge’s findings were manifestly in

error, the product of prejudice, bias, or fraud, or manifestly against the weight of the credible

evidence.

20
 CONCLUSION

There is substantial credible evidence in the record to support the conclusions of the

Special Judge in this case that the Petition for Judicial Review was not timely filed, depriving the

court of subject matter jurisdiction. His Final Judgment should be affirmed.

Respectfully submitted,

ANTHONY “TONY” SMITH,

RESPONDENT/APPELLEE

/s/ Warren L. Martin, Jr.

Warren L. Martin, Jr., MSB 101528
Warren L. Martin, Jr., P.A.
351 Edgewood Terrace Drive
Jackson, Mississippi 39206
Telephone: (769)257-6052
Email: attywarrenmartin@gmail.com

Attorney for Respondent/Appellee Anthony “Tony” Smith

21
 CERTIFICATE OF SERVICE

I, Warren L. Martin, Jr., attorney for Respondent/Appellee Anthony “Tony” Smith, do

hereby certify this brief complies with the type-volume limitation and that I have this day served

a true and correct copy of the Brief of Respondent/Appellee, with the Clerk of this Court and have

served a copy of this Brief of Respondent/Appellee, via ECF filing on the following persons:

Samuel L. Begley, Esq. Lisa M. Ross, Esq.

Begley Law Firm, PLLC
Post Office Box 287
Jackson, Mississippi 39205
Attorney for Respondent Sandra McCall
Pieter Teeuwissen, Esq.
Post Office Box 16787
Jackson, Mississippi 39236
Attorney for Respondent Zack Wallace
Danny E. Cupit, Esq.
Law Offices of Danny E. Cupit, PC
Post Office Box 22929
Jackson, Mississippi 39225
Attorney for Respondent Jacqueline Amos
514 E. Woodrow Wilson Blvd.
Jackson, Mississippi 39216
Attorney for Respondent Toni Johnson
Matthew Wilson, Esq.
The Law Office of Matthew Wilson
2218 W. Main Street, Suite B
Tupelo, Mississippi 38801
Attorney for David L. Archie,
Petitioner/Appellant
The Honorable Barry W. Ford
Hinds County Special Judge
Taggart, Rimes & Williams, PLLC
1022 Highland Colony Parkway, Suite 101
Ridgeland, Mississippi 39157

This the 4th day of March, 2024.

/s/ Warren L. Martin, Jr.

Warren L. Martin, Jr.

22