New Rule: When an Order is Effective
September 19, 2017 § 2 Comments
MRCP 58 specifies that a judgment must be entered by the clerk per R79(a) in order for it to be effective. That’s the rule for a judgment, but what is the rule for an order?
[Refresher … a judgment is a final, appealable ruling of the court that adjudicates all claims of all parties or, if fewer than all issues are resolved or fewer than all parties are affected, the judge includes a certificate per MRCP 54(b). An order, on the other hand, is a ruling by the court on matters brought before it in the course of litigation that do not finally resolve the issues in the case.]
That was the question before the MSSC in Graceland Care Center, et al. v. Hamlet, decided August 17, 2017. Here is how the court describes what happened:
¶1. Teresa Hamlet filed a motion for an extension of time to serve process, prior to the expiration of the 120-day deadline provided by Mississippi Rule of Civil Procedure 4(h). The trial judge granted the motion and signed an order, yet the order was not filed with the circuit clerk until the day before the granted extension expired, well after the expiration of the original, 120-day deadline. Hamlet served process on three defendants during the extension. On the same day the order was filed, Hamlet filed a second motion for time, which the trial court also granted. While Hamlet served process on the remaining defendants within the second extension period, the order granting the second extension was not filed with the clerk until three months after it was signed by the judge.
¶2. The defendants filed a motion to dismiss Hamlet’s complaint, arguing that the statute of limitations had run before the court’s order granting additional time to serve process had been entered by the clerk of court. The defendants further argued that Hamlet’s suit could not be revived by the untimely filed order. The trial court denied the defendants’ motion to dismiss . . .
In a 6-3 decision, the court affirmed. Justice King wrote for the majority:
¶27. Therefore, in cases involving ex parte motions, such as the present case, we find that the order becomes effective upon leaving the judge’s control. However, in cases where more than one party is involved and notice becomes essential, we find that an order becomes effective once it is officially entered into the record by the court clerk.
¶28. Of course, there also are certain other orders to which this general rule would not apply. For instance, temporary restraining orders and other emergency orders (such as domestic protective orders) are effective before filing with a clerk. See M.R.C.P. 65(b) (“[T]emporary restraining order . . . shall be filed forthwith in the clerk’s office and entered of record”). In addition, certain rulings of a trial judge that require immediate action, such as those under a judge’s contempt powers, would not be subject to the general rule.
¶29. This rule in no way limits the ability of the trial judge, where otherwise allowed by law, to enter an order nunc pro tunc, make an order retroactive or have it relate back for enforcement purposes. The purpose of this rule is to effectuate notice to the parties and establish some finality as relates to the running of deadlines.
So the rule now is that interlocutory orders are effective upon entry unless they are ex parte, in which case they are effective when they leave the judge’s control.
You need to read the entire opinion to get the rationale and understand how it applies. Also, while you’re at it, Coleman’s dissent, joined by Dickinson and Beam, has plenty of authority contra on the point.
Thanks to Attorney Andy Lowery for bringing this case to my attention.