Relief Pending an Appeal

November 6, 2013 § 2 Comments

We’ve talked here before about the concept that the trial court loses jurisdiction during an appeal to amend, modify or even reconsider its judgment.

That rule, however, is not absolute.

In the case of McNeese v. Grant, decided by the MSSC on October 10, 2013, the appellate court was called upon to decide whether the chancellor had erred when he ruled that a R60(b) motion was untimely filed, and that the trial court had no jurisdiction, because the movant, Kenton McNeese, had perfected an appeal from the judgment that was the subject of the motion. Here’s what the MSSC said in its opinion written by Chief Justice Waller:

¶7. Ordinarily, once a notice of appeal is filed, jurisdiction transfers from the trial court to the appellate court, thereby removing the trial court’s authority to amend, modify, or reconsider its judgment. Corporate Mgmt., Inc. v. Greene County, 23 So. 3d 454, 460 (Miss. 2009) (citations omitted). However, Kenton requested relief under Rule 60(b) of the Mississippi Rules of Civil Procedure.

¶8. This Court has explained that “the adoption of Miss. R. Civ. P. 60 conferred ‘limited concurrent jurisdiction on the trial court to grant relief from a judgment even though an appeal has been perfected.’” Griffin v. Armana, 679 So. 2d 1049, 1050 (Miss. 1996) (citing In re Estate of Moreland v. Riley, 537 So. 2d 1345, 1347 (Miss. 1989) (citation omitted)). Rule 60(b) allows a party to seek relief from a judgment or order in instances of “mistake, inadvertence, newly discovered evidence, fraud, etc.” M.R.C.P. 60(b). “So long as [Kenton] complied with the requirements of Rule 60(b), perfection of his appeal did not divest the trial judge of authority to vacate [his] judgment.” Griffin, 679 So. 2d at 1050. A party may file his Rule 60(b) motion directly with the trial court not more than six months after the judgment[;] however, once “the record has been transmitted to the appellate court and the action remains pending therein,” leave to make the motion must be obtained from the appellate court. M.R.C.P. 60(b).

The judge had ruled that Kenton’s motion was untimely filed, based on the language of MRAP 4(d), which reads, in part:

If any party files a timely motion of a type specified immediately below the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding. This provision applies to a timely motion under the Mississippi Rules of Civil Procedure. . . (5) for relief under Rule 60 if the motion is filed no later than 10 days after the entry of judgment. A notice of appeal filed after announcement or entry of the judgment but before disposition of any of the above motions is ineffective to appeal from the judgment or order, or part hereof, specified in the notice of appeal, until the entry of the order disposing of the last such motion outstanding. Notwithstanding the provisions of Appellate Rule 3(c), a valid notice of appeal is effective to appeal from an order disposing of any of the above motions. [Emphasis added]

The italicized language would seem to impose a 10-day limitation on the filling of the motion, as the chancellor ruled. The Supreme Court, however, disagreed, saying at ¶9, “This Court finds that Rule 4(d) applies to the suspension of the deadline by which to file a Notice of Appeal and does not create a deadline by which to file a Rule 60(b) motion.”

I recommend that you read the opinion, because there are some other aspects of interest in this pro se appeal. If you handle any appeals, you need to be familiar with this case.

This is, by the way, Kenton’s second pro se appeal. You can read about his first effort here.



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