Two Birds with One MRCP 54(b) Stone

August 5, 2013 § Leave a comment

You’ve read here over and over that when the chancellor adjudicates fewer than all of the pending issues in a case, no direct appeal can be taken unless the judge certifies under MRCP 54(b) that there is no just reason to delay an appeal. In the absence of such a certification, the unhappy party’s only recourse is to file a petition with the MSSC for an interlocutory appeal.

The legal landscape is littered with the wreckage of appeals that unsuccessfully ignored the gravitational pull of R54(b), only to come crashing back to where they started.

The latest example — with a twist — is Estate of Drake: Drake v. Drake, decided by the COA July 30, 2013.

Benjamin Lee Drake sued his uncle, Bennie Larry Drake, alleging that Bennie Larry had unduly influenced Benjamin Lee’s father, before the father’s death, to change the beneficiary of his life insurance policy from Benjamin Lee to Bennie Larry, and to convey a parcel of land to him. Benjamin Lee asked the court to set aside both the change in beneficiary and the land conveyance.

In the course of the litigation, the chancellor dismissed the life insurance relief for failure of Benjamin Lee to file his complaint within three years of discovery of his uncle’s fraudulent conduct, as required in MCA 15-1-49 and 15-1-67.

The chancellor left the real property issue pending, which meant that he had resolved fewer than all of the pending issues. He did it with no MRCP 54(b) certification, and he made it clear on the record that his ruling was not final. Nonetheless, he told Benjamin Lee that, if he “wish[ed] to take an interlocutory appeal,” the “same was granted.”

Now here is where things get a tad peculiar.

Benjamin Lee did file a petition for an interlocutory appeal under MRAP 5. But he did not stop there. He also filed a separate, general notice of appeal under MRAP 4. So he had two simultaneous appeals from the same judgment.

As is the norm, the MRAP 4 case was assigned to the COA, and the MSSC kept the MRAP 5 case.

I’ll let the COA tell us what transpired from there:

¶6. “[F]ind[ing] that [Benjamin Lee] filed a notice of appeal from the same trial order,” the supreme court dismissed his separate petition for permission for an interlocutory appeal under Rule 5. At that point, recognizing the other appeal—the Rule 4 non-interlocutory appeal—was not from a final order, Bennie Larry filed two motions to dismiss the general appeal. But the supreme court denied these motions as “not well taken.”

¶7. The appeal has since been assigned to this court. But since the order under review  is—as Judge Grant and both parties acknowledge—non-final, we lack jurisdiction to grant  an interlocutory appeal and must dismiss. See Lundquist [v. Todd Constr., LLC], 75 So. 3d [606] at 608 [(Miss. 2006)](¶12).

Ergo … Presto Changeo, and … Voila! … two appeals are magically transformed into zero appeals. And the appellant is right back where he started.

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