Where Do We Go from Here?

June 11, 2014 § 2 Comments

I don’t know about you, but when I practiced I always wondered what to do with a case once it was remanded from the COA or MSSC. Do you start over? What is the effect of the appellate court’s ruling on the case on remand? Can the judge try the case on the record already presented? Can we amend to clear up some of the problems from the initial, unproductive attempt?

 Do we start over?

Not exactly. The ancient law of Mississippi is that a remand restores the parties to the exact position that they occupied at the time of the reversed judgment or decree. Harris v. Newman, 6 Miss. 654 (1841). And where only a portion of the judgment is reversed, the effect is to place the parties in the same posture they were in before entry of that judgment, with the unaffected portions remaining in effect. Lloyd Wood Const. Co., Inc. v. Little, 623 So.2d 968, 972 (Miss.1993).

In a case where the appellate court reversed the granting of a divorce and remanded the case to the trial court, this would mean that the court would start from before entry of the reversed judgment, with the pleadings as they were at that point.  

What is the effect of the appellate court’s instructions on the case on remand?

The appellate court’s ruling often includes instructions. These are the law of the case, and are binding on the trial court. In the preceding example, for instance, the appellate court might have directed that the court retry the issue of grounds for divorce to consider certain aspects, or, in another case, for the trial judge to consider and address Ferguson, Albright or Armstrong factors. I once represented a client in a case that we got reversed and remanded, with a COA finding that there had been a material change in circumstances adversely affecting a minor child, and directing the court to proceed accordingly. The remand trial would have proceeded on the assumption that two prongs of modification were assumed, and that best interest was all that remained, but we settled before that trial.

Are amendments permitted to clear up some of the problems from the initial, unproductive attempt?

Griffith addresses the point this way: “The remanding of a case to the trial court is for the purpose of a trial de novo, and the trial court has the same power to allow amendments to the pleadings …” as it had prior to the reversal. Griffith, Mississippi Chancery Practice, 2d Ed., 1950, § 697. See, also Pigford v. Ladner, 142 Miss. 435, 107 So. 658 (1926).

Can the judge try the case on the record already presented?

The purpose of the remand is for a new trial in which ” … the [parties] will be entitled to introduce … evidence anew, together with such additional evidence as [they] may desire to offer, and the defendants be allowed to meet the proof offered by the complainant … ” Clark v. Clark, 203 Miss. 28, 31, 33 So.2d 293 (1948). The scope of the trial on remand may vary considerably from the original trial.

But if the pleadings have not been amended, and the issues are the same, and the parties agree to submit the case to the court on the original record, with the judge to address omitted factors or other matters directed by the appellate court, then there would seem to be no problem. In fact, I read an opinion of the COA in the past year or so in which that very procedure was employed, and the COA on the second appeal merely recited that was done, without comment. I have not been able to find that case for this post. 

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§ 2 Responses to Where Do We Go from Here?

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