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.

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  • […] MOTIONS: ROUND THREE I’ve posted here about the necessity to file post-trial motions to preserve error in chancery court, and how the […]

  • […] COA case of Robinson v. Brown, handed down January 25, was the subject of a previous post in which I alerted chancery lawyers that the case appeared to change the law that post-trial […]

  • Lance Robinson says:

    Although I ordinarily don’t allow comments by laypersons or parties about pending cases, I think this comment gives some insight into how parties can view their experiences with the courts, so I allowed it. — LP


    This case has jaded my view of the chancery court system and has facilitated a fascination with the words “discretion and subjective”. The chancellor is empowered with discretion and his / her findings are subjective . Shouldn’t this type of “power” be governed by statutes and case law? My opinion should be jaded, as you will see in my post my last name is Robinson, my wife was a “victim” of the system in my humble opinion. I am writing this post as a non-attorney, however, at one point in my career I made a living as an expert witness. I worked for the plaintiff and the defense. I am all too familiar with the rules of evidence and procedural issues. Needless to say, both sides want a victory. In many situations a victory for the defense was to mitigate damages while a victory for the plaintiff was a lucrative pay day. Regardless of the interpretation of a victory one thing was ingrained into my moral fabric, play by the rules and do not compromise your moral compass to get a “W” in the win column. Plaintiffs council was successful in getting the “W”, but at what cost I must ask?

    We were provided with discovery less than two hours before the hearing started. Allegations were made that were as the word implies , allegations. They were backed by nothing more than testimony that is contradictory throughout the trial transcript. What could we have done to warrant such allegations? Nothing more than get married , in doing so my wife relocated to south Mississippi. Her youngest daughter was opposed to the move for reasons that are understandable. The father in this situation was over $24,000 in arrears on child support. Despite a court order that allowed for an equitable solution to the child support issue, the father chose to ignore the same court system that eviscerated my wife. She had custody of her children following her divorce, nothing was EVER on the radar regarding her parenting skills prior to our marriage. Furthermore, she allowed her children liberal visitation.

    Prior to the hearing my wife met with her trial attorney and instructed him not to drag the children through mud , this case was about a relocation. Nothing more, nothing less. The children met with her trail attorney, they had nothing negative to say about their mother , the case was about a relocation. Nothing more, nothing less. However, it is well documented in case law that a relocation by a custodial parent who has primary physical custody is not a material change. No material change, no Albright Analysis. What to do? The plaintiff attorney had to fabricate a material change. Let’s put her parenting skills on trial and get the children to testify that she was an inadequate parent. Well, here come those words that have peaked my fascination, “discretion and subjective”. It is obvious that my opinion is jaded, my ramblings are biased. Here we have a mother that worked and supported her children while a father chose to ignore one of the basics , paying child support. He found gold in the parking lot when he was threatened with contempt, he did pay in order to avoid unclean hands and going to jail. Should this have persuaded the chancellor regarding his character ? To add to this situation, we had to file contempt charges following the slaughter in Lee County. He was in contempt regarding health insurance and ignoring decisions that were again handed down by the same court that eviscerated my wife.

    The Appeal

    We would have never filed an appeal if the case was decided on the facts. Leave well enough alone and move on, that is what we wanted to do. How could we do that when were denied a fair and “objective” hearing? The cowardly act of providing discovery two hours before a hearing is allowed if the chancellor calls upon his / her discretion . Does this case set the grounds for trail by ambush in the Chancery Court system going forward? Should a defendant have the inherent right of knowing what they are accused of and have ample time to prepare a defense? Our trail attorney requested a continuance for obvious reasons , we did not have time to read the discovery much less prepare for the allegations.
    Secondly, case law backs up the argument regarding a material change, however, if one can fabricate a “material change” and words are used such as “totality of the circumstances” what does existing case laws have to do with the Chancery Court System? Lastly, my wife made a mistake when filling out the 8.05 financial statement. Her testimony more than explained the mistake. I have a double masters, one of which is a MBA. The 8.05 financial statement as well as the instructions or lack thereof leave room for improvement. What is considered salary and what is considered a bonus was addressed during the trail , nothing was meant to mislead the courts. All W2 and pay roll records were provided with our discovery, which we presented to the opposing council prior to hearing so he could review accordingly. (what a novel concept)

    The Outcome

    As one can tell the Appellant Court rubber stamped the chancellor’s decision. At this point we chose to leave well enough alone and get beyond this quagmire. A mother tiger will always protect her cubs, my wife’s love for her children never changed. While she was hurt by their “orchestrated “ actions in the court room, she loves them unconditionally. Oddly enough for reasons unknown, the Appellant Court has granted a rehearing on this matter. The plaintiff nor the defendant requested a rehearing. This latest development is intriguing needless to say. We have no idea what they are reconsidering , most likely the issues that was addressed in this blog regarding post trail motions. From what I gather the plaintiff attorney is squirming, his “W” may be in jeopardy. My thought is he is squirming because he sat on his moral compass and it is implanted in his…. ( self-explanatory)

  • stewart parrish says:

    Unfortunately, my experience with appellate courts has been rather disappointing as far as their interpretation ofprocedural and evidentiary rules. Especially, when used in combination with other rules. This ruling appears to fly in the face of the plain language of Rule 52 and I doubt the SC would pass on a chance to correct that.

    • Andy Lowry says:

      I get the impression over the past year or two that they MSSC has been reversing the COA more than usual, tho many of those are criminal cases.

      Unfortunately, what often happens is that if neither side cites the correct law, the court won’t find it for itself.

  • Andy Lowry says:

    Let’s hope that counsel reads this blog, and files for rehearing and cert.

    And of course, the COA bench are judges, not justices. I myself get jumbled between *Judge* Carlton and *Justice* Carlson.

  • Frankie Springer says:

    One word…Wow.

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You are currently reading YOU’D BETTER FILE THOSE POST-TRIAL MOTIONS AFTER ALL at The Better Chancery Practice Blog.


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