When an Untimely Post-Trial Motion Results in a Timely Appeal

September 17, 2019 § Leave a comment

If you file a motion for a new trial later than ten days after the judgment is entered and the other side does not object, allowing the judge to rule on the motion, does your motion for a new trial toll the time to appeal?

Yes, said the COA in the case of Brown v. Blue Cane Water Assoc., et al., decided June 4, 2019. This is how Judge McDonald’s opinion addressed the issue:

¶21. Although the parties do not raise the issue, this Court must first determine that it has jurisdiction to consider this appeal. Hamilton v. Southwire Co., 191 So. 3d 1275, 1279 (¶15) (Miss. Ct. App. 2016); Gallagher v. City of Waveland, 182 So. 3d 471, 474 (¶13) (Miss. Ct. App. 2015). After reviewing when the final judgment, the motion for a new trial, and the notice of appeal were filed and recent precedent, we determine that we do have jurisdiction to consider the merits of the issues on appeal. In the past, we had strictly enforced the time limits for filing appeals in cases where post-trial motions are not timely filed. But these rules have been relaxed.

¶22. Mississippi Rule of Appellate Procedure 4(a) states that “the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within thirty days after the date of entry of the judgment or order appealed from.” M.R.A.P 4(a). Certain post-trial motions will toll this thirty-day deadline, including a motion for a new trial filed under Mississippi Rule of Civil Procedure 59. (The law had once provided that the extension of time to appeal operates only if the post-trial motion itself is timely filed. Brand v. Barr, 980 So. 2d 965, 962 (¶¶10-11) (Miss. Ct. App. 2008).) Under Rule 59(e), motions for a new trial must be filed within ten (10) days of the judgment. Moreover, a paper is not “filed” until the clerk actually receives it. Bolton v. Illinois Cent. R.R. Co., 218 So. 3d 311, 313 (¶8) (Miss. Ct. App. 2017). In Byrd v. Biloxi Regional Medical Center, 722 So. 2d 166, 168-69 (¶12) (Miss. Ct. App. 1998), we held that “an untimely filed Motion for Reconsideration will not excuse an untimely Notice of Appeal, and clearly will not create or confer jurisdiction in this court.”

¶23. The Mississippi Supreme Court relaxed this strict enforcement in Wilburn v. Wilburn, 991 So. 2d 1185 (Miss. 2008). In that case, the chancery court issued its modification order on June 1, 2007. Wilburn, 991 So. 2d at 1191 (¶12). Counting weekends, the response was due on June 11, 2007. Id. The ex-wife filed a “Motion for Reconsideration” one day later on June 12, 2007. Id. The motion was denied and timely appealed. Id. at 1190 (¶8). The Mississippi Supreme Court applied established precedent and found that the motion for reconsideration was untimely. But the Court further found that because the husband did not object to the timeliness of the motion when it was before the chancery court, he was procedurally barred from raising the issue for the first time on appeal. Id. at 1191 (¶13). The Court proceeded to consider the appeal on its merits. Id. at 1192 (¶14).

¶24. We recently applied Wilburn in Massey v. Oasis Health & Rehab of Yazoo City LLC, No. 2017-CA-00086-COA, 2018 WL 4204207 (Miss. Ct. App. Sept. 4, 2018). In Massey the circuit court granted a motion to compel arbitration on November 9, 2016. Id. at *4 (¶11). Massey filed a motion to alter or amend the judgment under Rule 59 on November 22, 2016—one day late. Id. at *5 (¶16). Massey’s motion was denied and appealed within thirty days of the denial. Id. at (¶17). We reviewed prior cases that dealt with the timeliness of an appeal when a motion for new trial or reconsideration was not timely filed in the court below. Id. We noted the Mississippi Supreme Court’s ruling in Wilburn v. Wilburn, supra,
which created an exception to the bar of hearing an appeal if the timeliness of a post-trial Rule 59 motion is not challenged before the trial court. Id. at *6 (¶18). Following these precedents in Massey, we held:

Here, just as in Wilburn, Massey filed his Rule 59 motion one day too late, and Oasis responded to the motion on the merits—without objecting to the motion as untimely. After the circuit court denied Massey’s Rule 59 motion, Massey filed a notice of appeal. Just as in Wilburn, Massey filed his notice of appeal within thirty days of the order denying his Rule 59 motion, but more than sixty days after entry of the underlying order. As to the issue of appellate jurisdiction, there is no material difference between this case and Wilburn. Under Wilburn, we have jurisdiction to address the appeal and the merits of the underlying order compelling arbitration.

Massey, 2018 WL 4204207, at *6 (¶20). The special concurrence in Massey noted a similar holding found in Carter v. Carter, 204 So. 3d 747 (Miss. 2016), that the lack of an objection to an untimely Rule 59 motion procedurally bars an appellee from raising the issue of timeliness on appeal. Massey, 2018 WL 4204208, at *15 (¶59) (Greenlee, J., specially concurring). The concurrence pointed out that the Carter decision cited federal case law, saying:

Our supreme court seems to recognize, as the United States Supreme Court did in Bowles, [Fn 4] that “procedural rules adopted by the Court for the orderly transaction of its business are not jurisdictional and can be relaxed by the Court in the exercise of its discretion . . . .” Bowles, 551 U.S. at 212, (quoting Schacht v. United States, 398 U.S. 58, 64 (1970)). New Mississippi ground is being broken. . . .

Massey, 2018 WL 4204207, at *15 (¶61) (Greenlee, J., specially concurring).

[Fn 4] Bowles v. Russell, 551 U.S. 205 (2007)

¶25. In this case, the final judgment was signed on December 15, 2017, and filed with the clerk on December 18, 2017. The Browns had ten days to file their motion for a new trial (i.e., December 28, 2017). Browns’ counsel indicated in his certificate of service that he served the motion on Blue Cane’s counsel by mail on December 27, 2017 (a Thursday). But the clerk did not file the motion until January 3, 2018, which was seven days later and sixteen days after the judgment was filed.

¶26. Blue Cane responded to the motion for a new trial but did not challenge its untimely filing. On January 23, 2018, the chancery court denied the motion for a new trial in an order filed with the clerk on January 26, 2018. A notice of appeal was filed on February 2, 2018. Both Wilburn and Massey are directly on point. Although the Browns’ Rule 59 motion was not timely, Blue Cane did not object. Pursuant to Massey and Wilburn, we find that we do have jurisdiction to proceed to a ruling on the merits.

Two thoughts:

  • “A paper is not filed until the clerk actually receives it.” Crucial point. In paper-filing districts, the motion is not filed until the clerk enters it on the docket, per MRCP 79(a). Mailing it to the clerk, or even handing it to the clerk, does not accomplish this. MEC overcomes this problem.
  • Sometimes we go along in order to get along. Your pal, hunting buddy, and fellow church member, who happens to be opposing counsel, approaches you and says, “Man, I screwed up and filed that R59 motion a day late; I hope you’ll give me a pass on that so I won’t look bad.” You could say “<wink> <wink> Sure, pal, no problem, I know you’d do the same for me.” But it would be more in line with your professional responsibility to your client to say, “I hate that for you, but I have to object to timeliness to protect my client; I hope you understand.”

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