FINALLY, THE FINAL WORD ON FINALITY
December 13, 2011 § 7 Comments
It makes a big difference whether or not a judgment is final. You cannot appeal from a judgment unless it is a final judgment.
A final judgment resolves all issues, and requires no further action by the court. Scally v. Scally, 802 So.2d 128, 130 (Miss.App. 2001). It puts an end to the action, disposing of the entire controversy on its merits, so that there is no further question for future determination by the court, except perhaps collateral or separate questions, and there is nothing left to be done but to enforce by execution what has been determined. Fortune v. Lee, 725 So.2d 747, 750-51 (Miss.1998).
MRCP 54 says that any judgment that adjudicates less than all the claims or defenses of the parties does not terminate the action and may be revised at any time before entry of a final judgment. Two recent COA cases reiterated the point that you can not appeal from a less-than-final judgment. There is, however, an exception in that the trial judge can make a finding under Rule 54(b) that there is no reason for delay, and direct entry of a final, appealable judgment as to certain issues. For instance, the judge could in a divorce case adjudicate the divorce, custody, child support and equitable division, and enter a final judgment as to those issues while retaining jurisdiction to adjudicate alimony later, when the parties’ financial situation becomes more settled. See, McNally v. McNally, 516 So.2d 499, 502 (Miss. 1987).
MRCP 58 states that “A judgment shall be effective only when entered as provided in M.R.C.P. 79(a).” Rule 79(a) is the provision that entry occurs when the clerk enters the judgment on the General Docket. Thus, signing by the judge alone does not create a final judgment, nor does simply handing or mailing the judgment to the clerk, nor even file-stamping the judgment. MRAP 4(a) requires that an appeal must be filed within 30 days after entry of the judgment. In most counties, the clerk enters the judgment immediately or amost immediately when received, but in some rural counties where clerks are understaffed, a judgment can sit around awhile without being docketed.
Until the judgment is entered on the docket by the clerk, it is subject to revision and even reversal by the trial judge, even where the court has issued a written opinion. The court’s opinion is not equvalent to, nor does it have the same force and effect as, a final judgment entered per MRCP 79(a). See, Banks v. Banks, 511 So.2d 933, 935 (Miss. 1987).
MRCP 5(e)(1) and UCCR 2.02 allow the court to accept papers on behalf of the clerk and to mark them as filed. The rules, however, do not provide that filing of a judgment in this fashion constitues entry of the judgment. Again, until the clerk has complied with Rule 79(a), the document is not effective as a final judgment.
After the final judgment is entered on the docket, its finality is subject only to a motion to reconsider under MRCP 59, or for relief from judgment pursuant to MRCP 60.
Every now and then, a disgruntled party will attempt an interlocutory appeal from a temporary judgment. I had this experience in Clarke County. The supreme court sent me its order to respond, and I did, pointing out that the order from which the appeal was taken was a temporary hearing in a custody matter, and was therefore unappealable. I received an order dismissing the appeal the following week. The two main cases on point are Michael v. Michael, 650 So.2d 469, 471 (Miss. 1995) and McDonald v. McDonald, 850 So.2d 1182, 1193 (Miss.App. 2002).
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Wow, that’s odd. And there I was wondering why we even have to send the briefs to the trial judge. I hadn’t ever heard of the trial judge being asked by the MSSC to answer something.
Thanks!
“The supreme court sent me its order to respond, and I did, pointing out that the order from which the appeal was taken was a temporary hearing in a custody matter, and was therefore unappealable.”
So when was that — you didn’t file an appellee brief and got a letter about that?
I have my own such case and was wondering whether to file a motion prior to briefing.
In two appeals taken from my court I have been asked by the appellate court to submit a reply. This was one of those cases. The other was an appeal where I overruled a Rule 59 motion based on a judgment entered by my predecessor because I could not reconsider something I had not considered in the first place. As a lawyer I never had an appeal where the judge was asked to submit anything, and I handled around 34 appeals.