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.
The Starting Point
August 2, 2013 § 4 Comments
A pleasant young lawyer from far away in the exotic west of Mississippi dropped by my office last week on a probate matter. I signed her order and we visited briefly.
In the course of the conversation she complimented my work on this blog and said that she always finds something thought-provoking, even when she does not agree with my conclusions.
Ah. Mission accomplished.
As I have emphasized to anyone who will listen, this blog is not intended to be an authoratative reference work. It’s intended as a starting point. It’s a place where you may find a case or a concept that you might not have known about, and which will start you on your quest to put together the authority you might need to convince your sitting judge.
The posts here represent my best judgment about the law, but they are, above all, one judge’s opinion. You may disagree with my conclusions (and some commentors do). But if they provoke you to dig a little deeper, or to take what I have said and try to hammer it into a shape that will fit the predilections of your particular chancellor(s), then the blog is doing its job.
Welcome to the starting point.
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
The Better Chancery Practice Blog 