August 11, 2011 § 4 Comments

Here’s a little nightmare scenario for you …

Chancellor renders a judgment of divorce. Among other provisions, the judge ordered that the homestead and certain personalty be sold by the Chancery Clerk, the administrative costs be paid, and then the remaining proceeds be divided between the parties. Your client is unhappy enough to pay you to file an appeal from the judge’s adjudication of equitable distribution. It takes him a couple of weeks to scrape together your fee, but the appeal clock still has plenty of ticks. Client comes in at last and pays the freight. You start work on the notice of appeal, and while you’re at it …

Twenty days after the judgment is entered, here comes a sua sponte order from the court clarifying the instructions to the clerk as to the specific items of personalty that were to be sold, and how the homestead proceeds were to be divided. You have other pressing matters on your plate, so you are relieved that the judge reset the appeal clock for you. Finally, 29 days after the clarifying order, your file your notice of appeal.

Is there a problem?

The above facts happened in Penton v. Penton, decided by the COA on April 13, 2010. Judge Barnes’ opinion points out that the appellate rules and our case law are silent as to the effect of a sua sponte order of the trial court such as that in this case. This second order was not a reconsideration with a substantive change of the original judgment. Reconsideration was limited to within ten days of the original judgment under MRCP 59. Nor did it involve correction of a clerical error under MRCP 60. The second order did not substantively change the award in the original judgment; it merely made the instructions clearer for the clerk.

Looking to federal case law, Judge Barnes concluded that ” … only when the lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken … begin to run anew.” She found that the provisions of the second order were not substantive, so it did not have the effect of extending the appeal time from the original judgment.

The opinion noted that entry of the second order still left time for appeal from the original judgment, and that counsel could have filed a motion with the trial court to extend the time for appeal, if that were needed to evaluate the sua sponte order, but no such motion was filed.

The result was that the appeal was dismissed as untimely filed.

As a matter of practice, this case illustrates that it’s better under the current state of the appellate rules to file a premature notice of appeal than to file too late. Once the deadline passes without a motion to extend having been filed, the appeal is dead.

I’ve held off commenting on this case because it’s an unpublished opinion and obviously addresses a matter of first impression of Mississippi. I have surmised that publication is being held pending evaluation by the Supreme Court, since that court has jurisdiction to adjudicate first impression cases.

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  • Anderson says:

    As someone who thinks the COA recently blew an issue of first impression, I was interested in your remark about “since that court has jurisdiction to adjudicate first impression cases.”

    Do you refer to MRAP 16(d)? That speaks to what the MSSC will “ordinarily retain,” which evidently it did not in this case; also, that rule says “major question of first impression,” which is rather subjective.

    (I don’t quite understand why any issue of first impression goes to the COA; I suppose it depends on what someone in Central Legal thinks is “major,” and on whether the justice checking off on their evaluation is also checking behind them. Procedure may’ve changed since I was a clerk there.)

    On that note, the failure of the MSSC to publish its IOPs (which the 5th Circuit does, for instance), and to clarify just how a case is evaluated for deflection to the COA, is an example of unnecessary administrative obscurity.

    • Larry says:

      Since appeals are, thankfully, no longer in my realm of responsibility, I don’t keep up with the appellate rules as carefully as you do, so I will defer to your recitation of the rule. My remarks were intended to be general. My impression since creation of the COA has been that the MSSC’s default position would be to keep all first-impression cases, but I know of first-impression cases that the COA has decided. I don’t know what the cutoff is between “major” and “non-major” (“minor?”) first-impression cases might be. I’m with you that the MSSC should handle them all. But then again, I am merely a lowly trial judge.

      • Anderson says:

        Speaking of trial judges and appeals, I am curious: do you ever read those briefs that MRAP 25(b) requires be served on you? Feel free not to answer if that is top-secret judge stuff.

        (Fun fact: although the MRAP nowhere, that I can find, says record excerpts must be served on the trial court, I’ve seen the clerk’s office ding lawyers for not doing so. The right way, the wrong way, and the clerk’s way ….)

      • Larry says:

        I very seldom read either side’s briefs. I would not read the record excerpts if provided.

        As Judge Frank McKenzie so eloquently put how to deal with clerks: “Beware contempt of clerk. The sanctions can be hell.”

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You are currently reading WHAT DOES IT DO TO YOUR APPEAL WHEN THE TRIAL JUDGE DOES A DOUBLE-TAKE? at The Better Chancery Practice Blog.


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