Can You Ask for Rehearing, or to Alter or Amend a Judgment, Before There is a Judgment?

August 1, 2013 § 3 Comments

It’s fairly common in this court in a complicated case for me to issue an opinion in a case and direct that one of the attorneys prepare a judgment corresponding with it. The opinion is is issued on one date, and the judgment, as a result, is entered perhaps two weeks later.

It’s also fairly common for a lawyer, once the opinion has been issued, to file an MRCP 59 motion for rehearing in the interval between issuance of the opinion and entry of the judgment.

It does make a difference when you file your post-trial motion. A motion filed within 10 days of entry of the judgment is treated as a R59 motion, and one filed later than 10 days is treated as a R60 motion. City of Jackson v. Jackson Oaks Limited Partnership, 792 So.2d 983, 985 (Miss. 2001). Since the subject matter that may be addressed under each rule is markedly different, you can see that it makes quite a difference when your motion is filed.

So how is the court to treat your motion if you file it even before a judgment is entered? Is your motion a nullity?

The COA addressed the issue in Street v. Street, 936 So.2d 1002 (Miss. App. 2006), where the court stated:

¶ 16. The timing of post-trial motions under Rule 59(a) and Rule 59(e) is the same; such motions must be made “not later than ten days after the entry of judgment.” M.R.C.P. 59(b); 59(e). Both Stephen’s Rule 59(e) motion for reconsideration and his Rule 59(a) motion for a new trial were filed after the chancellor’s bench opinion but before the final judgment was entered. Carla argues that Stephen’s motion for reconsideration was untimely under Rule 59(e) because it was filed before the final judgment was entered rather than within ten days after the entry of the final judgment. For that reason, she contends that the motion should not have been considered by the chancellor.

¶ 17. It appears that the question of whether a Rule 59(e) motion is timely if filed before the entry of a final judgment is one of first impression in Mississippi. However, “[t]he Mississippi Rules of Civil Procedure are patterned after the Federal Rules of Civil Procedure, and we have looked to the federal interpretations of our state counterparts as persuasive authority.” Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1215(¶ 32) (Miss.2001). Federal authority is settled that a Rule 59 motion is timely though filed after the court makes findings of fact but before the entry of a final judgment. See 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 2812 at 82 n. 44 (1973).

¶ 18. As previously stated, the timing of a Rule 59(e) motion to alter or amend a judgment and a Rule 59(a) motion for a new trial is identical; both motions must be made “not later than ten days after the entry of judgment.” M.R.C.P. 59(b); 59(e). In Hilst v. Bowen, 874 F.2d 725, 726 (10th Cir.1989), the Tenth Circuit observed that “courts and commentators generally agree that this ten-day limit sets only a maximum period and does not preclude a party from making a Rule 59 motion before a formal judgment has been entered.” The Hilst court found that the appellant’s motion for reconsideration was timely though made after the lower court rendered a memorandum and order but before the court entered a final judgment. Id. In concluding that a motion for a new trial filed before entry of judgment was timely, the Fifth Circuit stated that “[the] language [of Rule 59(b) ] does not explicitly require that a motion for new trial be made after judgment is entered, and it has not been interpreted to include this requirement.” Greater Houston Ch. of the ACLU v. Eckels, 755 F.2d 426, 427 (5th Cir.1985); see also McCulloch Motors Corp. v. Oregon Saw Chain Corp., 245 F.Supp. 851, 853 (S.D.Cal.1963) (finding that, by the rule’s use of the words “shall” and “not later than,” the ten days after the entry of judgment established an outside, not an inside, limit for the timing of a motion for a new trial). Based on this authority, we find that Stephen’s Rule 59(e) motion was timely filed after the chancellor’s rendition of her bench opinion, though before the final judgment was entered.

 Street was cited in the later case of Gary v. Gary, 84 So.3d 836 (Miss. App. 2012):

¶ 12. Because Michael filed his motion to reconsider five days before the November 29, 2010 entry of the nunc pro tunc order, this court considers his motion for reconsideration as a motion for new hearing or, alternatively, to amend or alter the judgment under Rule 59. M.R.C.P. 59(a), (e) (requiring both motion for new trial and a motion to alter or amend the judgment “be filed not later than ten days after entry of the judgment”); see Street v. Street, 936 So.2d 1002, 1008 (¶ 17) (Miss.Ct.App.2006) (finding a motion to alter the judgment filed after the court made findings of fact but before the entry of a final judgment was timely under Rule 59).

Thanks to attorney David L. Calder of the Child Advocacy Clinic at the University of Mississippi School of Law

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§ 3 Responses to Can You Ask for Rehearing, or to Alter or Amend a Judgment, Before There is a Judgment?

  • Anderson says:

    I think that’s the right result. I’m not sure *why* anyone would file such a motion early, though the difficulty some clerks’ offices have with timely getting out copies of judgments is perhaps a factor.

    Given also that the “3 days for mailing” rule doesn’t apply to Rule 59, I hope the MSSC will get around to following the new federal rule, which allows 28 days not 10. Lawyers fearful they will miss the judgment until after it’s too late, are more likely to file their motions early in an abundance of caution.

    • Larry says:

      I suppose our 10-day period is tied to the concept that one can not execute on a judgment until 10 days after entry. Or vice versa.

      • thusbloggedanderson says:

        Good point. The feds’ Rule 62 has a 14-day automatic stay; the court *may* stay the judgment pending the resolution of the Rule 59 motion, but need not do so. Odd they would have that discrepancy.

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