YOU’D BETTER FILE THOSE POST-TRIAL MOTIONS AFTER ALL
January 27, 2011 § 9 Comments
Back on November 16, 2010, I posted here that you don’t have to file a motion for a new trial in chancery non-jury trials to preserve error for an appeal. As I pointed out, it has never been the law in chancery court that such a motion was necessary, and MRCP 52(b) would appear to dispose of the issue. I do believe that was an accurate statement of the law in chancery court.
Until Tuesday, January 25, 2011.
On that date, the court of appeals handed down its decision in Robinson v. Brown, in which the appellant attempted to argue that it was error for the chancellor to assess her with child support because she claimed that he had failed to make the appropriate findings of fact. Justice Carlton’s opinion, to which there was no dissent, holds at ¶ 18 that the appellant:
” … failed to assert this alleged error post trial to the chancellor, and such failure waived her right to now complain as to this issue on appeal. Mississippi Rule of Civil Procedure 52 allows the court to amend its findings, or make additional findings, upon motion of a party filed not later than ten days after the entry of a judgment or entry of findings and conclusions of law. Watts v. State, 492 So.2d 1281, 1291 (Miss. 1986) (appellant was procedurally barred from raising an issue on appeal where he failed to raise it in his post-trial motion).”
The only case cited to support the point is a criminal case from circuit court, presumably from a jury trial.
The opinion does not mention MRCP 52(b), which specifically states:
When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised regardless of whether the party raising the question has made in court an objection to such findings or has filed a motion to amend them or a motion for judgment or a motion for a new trial.
Would that exact language not apply in this case since the appellant was complaining that the trial court’s ruling was not supported by sufficient evidence? And, as with nearly all chancery court cases, this was a case “tried by the court without a jury.”
The lone justice with chancery experience on the court of appeals, Justice Myers, is listed as “not participating.”
Practice Tip: For chancery practitioners, I believe that this decision means that from now on you had better file a post-trial motion in every case if you have any thought of an appeal, and you’d better list every error you think might be in the record.
For chancellors, this will mean an abundance more work, on top of the lengthy opinions we are required to write to pass scrutiny of the appellate courts.
There’s a lot I could say about this, but I guess I’d better not. If you want my views, drop by my office and we’ll talk.