Blueprint for Proving Fraud on the Court

March 20, 2019 § 2 Comments

If you will type “fraud on the court” in that Search box over there on the right at the top of the page, you will call up some posts I have done on the effect that fraud on the court has on a judgment.

Most fraud-on-the-court situations are pretty clear. Sometimes, though, you have to convince the judge that the behavior about which you are complaining did constitute a fraud on the court even though it appears benign on its face. Your burden of proof is clear and convincing, so you have to make sure the evidence is strong.

In Manning v. Tanner, 594 So.2d 1164, 1167 (Miss. 1992), the MSSC established four factors that the court must find in order to vacate a judgment for fraud on the court:

(1) that the facts constituting the fraud, accident, mistake, or surprise must have been the controlling factors in the effectuation of the original decree, without which the decree would not have been made as it was made;

(2) the facts justifying the relief must be clearly and positively alleged as facts and must be clearly and convincingly proved;

(3) the facts must not have been known to the injured party at the time of the original decree; and

(4) the ignorance thereof must not have been the result of the want of reasonable care and diligence.

Clearly factor 1 is the most important to the analysis. If the allegedly fraudulent conduct would not have effected the outcome, the relief should not include setting aside the judgment. To illustrate: I set aside an irreconcilable differences divorce once because on a R60 hearing a year later emails were produced in which the parties essentially agreed that the PSA presented to the court was a sham, and that they were actually agreeing to terms that an attorney had told them I would never approve. Had I known of the side deal when I was presented the original judgment I would never have signed it.

Factor 2 mentions pleadings. Remember the requirement of R9(b) that “the circumstances constituting fraud … shall be stated with particularity.” You have to state in your motion what the specific conduct was that you claim was fraudulent. And, again, the conduct must be proven by clear and convincing evidence.

If your client knew, or should have known by reasonable care and diligence, of the fraud, then the court should not set aside the judgment. That’s Factors 3 and 4.

In deciding whether to set aside a judgment for fraud on the court, the chancellor must keep in mind that “Relief based on ‘fraud upon the court’ is reserved for only the most egregious misconduct, and requires a showing of ‘an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’” Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989). “The mere non[-]disclosure to an adverse party and to the court of facts pertinent to a controversy before the court does not add up to ‘fraud upon the court’ for purposes of vacating a judgment under Rule 60(b).” Trim v. Trim, 33 So.3d 471, 477-78 (Miss. 2010). “To warrant relief pursuant to Rule 60(b)(1) the movant must prove fraud, misrepresentation or other conduct by clear and convincing evidence.” Hill v. Hill, 942 So.2d 207, 214 (Miss. App. 2006) [My emphasis].

A Less-Than-Final Judgment

March 13, 2019 § Leave a comment

The chancellor takes custody away from your client and awards it to the maternal grandmother, who had pled not only for custody, but also for child support.

On the latter issue the judge held “the issue of child support to be paid by [the natural parents] in abeyance,” and allowed for a review hearing on the issue of child support after six months.

You file a R59 motion, which is denied.

Your client wants to appeal. When do you appeal? (A) Now? (B) Some time after six months? (C) After the court finally rules on child support? (D) When the child has his first holy communion?

The answer is (C), because you can only appeal from a final judgment or from a less-than-final judgment only when the court certifies that there no just reason for delay and directs entry of a final judgment. That’s MRCP 54.

The above scenario is from the COA’s decision in Britt v. Holloway, decided January 15, 2019, in which the court dismissed the appeal for lack of jurisdiction.

The law can sometimes seem to be filled with snares and traps for the unwary, so it is understandable that lawyers sometimes jump into an appeal even when there is no final judgment simply to escape the terror of being too late to appeal.

Oh, and before we leave this, that reference above to holy communion was a red herring. I thought you might want to know.

The Retirement Trigger

February 26, 2019 § Leave a comment

In a case last month the COA affirmed a chancellor’s dismissal of a an ex-wife’s petition filed 21 years after the divorce to “allocate and disburse retirement funds.” In the divorce case she had been granted only the divorce, custody, and child support; she had not sought any division of retirement or other funds, and the court did not order it. The case is Stubbs v. Stubbs, decided January 29, 2019.

That case is pretty straightforward and not particularly noteworthy, but it set me thinking about cases in which there is an agreement that, for instance, the husband will pay a percentage of his retirement benefits when he begins drawing them. I have seen those in military and railroad retirement, which is not otherwise divisible. PERS benefits would fit into that category.

If the court orders that an act be done beyond what would ordinarily be the statute of limitations (SOL) applicable to the order, does that stay the running of the statute?

Can one seek modification of that part of the order that has not yet taken effect? For example, could the ex-wife after 5 years, but before the retirement, ask the court to increase the percentage previously ordered, or does she have to wait until the retirement benefits begin?

We all know that a mere order of the chancery court is not adequate to protect the ex-wife’s interest in these scenarios. Either a QDRO or a court order in the form dictated by the military or Railroad Retirement Board is necessary to do so. Can SOL be pled to bar entry of a QDRO or similar order sought years after the original judgment on which it is based?

Just a few idle thoughts to ponder as we slog in our snowshoes toward another glorious Spring.

Who Gets to Challenge Constitutionality?

February 11, 2019 § Leave a comment

In the divorce judgment entered between Michael and Joesie Gerty, the chancellor sua sponte declared MCA § 93-5-2 (divorce on the ground of irreconcilable differences) unconstitutional.

Michael, Joesie, and the State of Mississippi all filed R59 motions asking the court to set aside that part of her ruling because no party had pled, argued, or offered evidence on the issue. The chancellor did not change her ruling, and all three movants appealed.

In Gerty and Mississippi, ex re. Hood v. Gerty, decided December 13, 2018, the MSSC reversed on the issue of constitutionality. Justice Randolph’s opinion for a unanimous court made short work of the issue:

¶34. Few subjects in our jurisprudence are so settled as the maxim that a statute’s constitutionality will not be considered unless it has been specifically pleaded. See Martin [v. Lowery], 912 So. 2d [461] at 464-65; Lawrence Cty. Sch. Dist. v. Bowden, 912 So. 2d 898, 900 (Miss. 2005); City of Jackson v. Lakeland Lounge of Jackson, Inc., 688 So. 2d 742, 749 (Miss. 1996) (citing State ex rel. Carr v. Cabana Terrace, Inc., 247 Miss. 26, 153 So. 2d 257, 260 (1963)); see also Colburn v. State, 431 So. 2d 1111, 1114 (Miss. 1983); Witt v. Mitchell, 437 So. 2d 63, 66 (Miss. 1983).“[I]issues are framed, formed and bounded by the pleadings of the litigants. The Court is limited to the issues raised in the pleadings and proof contained in the record.” Lakeland Lounge, 688 So. 2d at 750 (emphasis removed) (internal citation omitted). A trial court may not raise a constitutional issue sua sponte. In re Estate of Miller v. Miller, 409 So. 2d 715, 718 (Miss. 1982).

¶35. The chancellor fully acknowledges that the litigants did not raise the constitutionality of Section 93-5-2 in their pleadings or proof. The chancellor’s ruling, that the statutory scheme presented by Section 93-5-2 is unconstitutional, exceeded her authority. The rule of law requires that we reverse and vacate the chancellor’s judgment declaring the statute unconstitutional and granting an irreconcilable-differences divorce.

The opinion does not describe the basis for the chancellor’s ruling of unconstitutionality. In Footnote 5, the opinion states that, “An amicus brief was filed by the Misssissippi Coalition Against Domestic Violence in support of the chancellor’s finding. The amicus called for affirming the chancellor, because the statute deprived domestic-abuse victims of constitutional rights. However, no domestic violence was pleaded or proved in this matter.”

The court reversed and remanded on other issues raised by the parties.

At ¶5, this enigmatic statement appears: “Today’s case … is unique but not unprecedented … ” It seems to me that something unique is by its nature unprecedented.

This case, involving a sua sponte unconstitutionality ruling, is not a scenario you are likely to encounter, but, as the precedent shows, it is in the realm of possibility.

About-Face in a Default Judgment Case

February 5, 2019 § Leave a comment

In July, 2018, we posted here about the case of Emery v. Greater Greenville Housing, decided by the COA on June 12, 2018. In that decision the COA affirmed a chancellor’s denial of Emery’s motion to set aside a default judgment. Emery filed a motion for rehearing.

On January 8, 2019, the COA denied the motion for rehearing, but went on to withdraw its prior opinion, substituting a new opinion that reversed the chancellor for the reason that Emery had shown a colorable defense to the action, which is the second element of the three-prong balancing test of R60(b).

In its January, 2019, opinion in Emery v. Greater Greenville Housing, by Judge Carlton, the COA reversed and remanded. On the matter of R60(b)’s balancing test, the court said this:

¶24. As the Mississippi Supreme Court has explained, “[a]ccording to Rule 55(c), a default judgment may be set aside ‘[f]or good cause shown’ and in accordance with Rule 60(b).” BB Buggies Inc. [v. Leon], 150 So. 3d [90] at 101 (¶23) (quoting M.R.C.P. 55(c)). The Court has articulated a three-pronged balancing test the trial court must apply in determining whether to set aside a judgment pursuant to Rule 60(b):

(1) the nature and legitimacy of the defendant’s reasons for his default, i.e. whether the defendant has good cause for default, (2) whether the defendant in fact has a colorable defense to the merits of the claim, and (3) the nature and extent of prejudice which may be suffered by the plaintiff if the default judgment is set aside.

Id. As noted above, we apply an abuse of discretion standard in reviewing the chancery court’s denial of Emery’s motion to set aside the default judgment. If the chancery court’s decision is based upon an error of law, however, we will reverse. Tucker [v. Williams], 198 So. 3d 299, 309 (¶24).

As for the factor of “good cause,” the COA agreed with the chancellor that Emery had failed to establish that he had good cause. He had failed to file any answer whatsoever, and did not demonstrate good cause for his failure. The court pointed out at ¶32, ” ‘However, lack of good cause alone will not prevent the Court from setting aside a default judgment if the other two factors weigh in favor of setting it aside.’ B.B. Buggies Inc., 150 So.3d at 102 (¶24) … ‘ ”

The court explained the element of colorable defense this way:

¶33. The Mississippi Supreme Court has “held unequivocally that the second factor [in the Rule 60(b) balancing test], the presence of a colorable defense, outweighs the other two, and [the Supreme Court has] encouraged trial courts to vacate a default judgment where the defendant has shown that he has a meritorious defense.” BB Buggies Inc., 150 So. 3d at 102 (¶25) (internal quotation marks omitted). In addressing the definition of a “colorable defense,” the Court has explicitly stated that “[a] colorable defense is one that reasonably may be asserted, given the facts of the case and the current law.” Tucker, 198 So. 3d at 312 (¶35). Further, “[a] defense need not be compelling, be proven to trial standards, or be supported by sworn evidence in order to qualify as a ‘colorable defense.’. . . Rather, the defense must be a reasonable one.” Id. (citation omitted). “Indeed, [the Mississippi Supreme] Court has held that even a defense of ‘questionable’ strength may be colorable.” Id. (quoting Woodruff, 143 So. 3d at 553 (¶18)).

The court went on to conclude that Emery had proven a colorable claim that necessitated setting aside of the default judgment.

On the final prong, prejudice to the plaintiff if the default is set aside, the court at its ¶45 cited B.B. Buggies yet again for the proposition that “prejudice does not result from the loss of rights that were obtainable only by default. B.B. Buggies, Inc., 150 So. 3d at 104 (¶31) …  ,” and found no prejudice to the plaintiff.

If you handle matters that involve default judgments the COA’s decision in this case bears closer reading. This was a deed reformation case, but the rule’s application can arise in many different types of chancery cases.

Bellum Sacrum

January 9, 2019 § Leave a comment

The concept of Holy War (bellum sacrum in Latin) came about in the 11th century to justify attacking and attempting to annihilate infidels and those whose religious beliefs were different than those of the attacking sect.

Fast forward ten centuries and today’s bellum sacrum usually involves warring factions in church disputes. You can read a couple of posts dealing with similar issues here and here.

The latest to come wafting down from the appellate stratosphere involved Jacob Chapel MB Church, which found itself divided into two factions after its pastor died in December, 2015. One faction was headed by Richard Eskridge, a deacon of the church. The other was led by Louella Peacock, the church’s secretary/treasurer. The depository bank interpled the church’s accounts in chancery and summoned the church. Peacock’s group answered first, claiming the funds, followed by Eskridge’s faction, and the issue was joined. The funds were deposited into the registry of the court.

Eskridge claimed that Brenda Bowie had been elected and installed as the new pastor. Peacock replied that the election was not done according to church by-laws, and that the membership had voted to remove both Bowie and Eskridge from leadership roles in the church.

The chancellor ordered mediation to be conducted by the SCBA, a local Baptist Association, and that body facilitated a new pastoral and leadership election according to church by-laws. That action resulted in election of Kenneth Wraggs as pastor and Betty Quinn as treasurer. The Association recommended adoption of the action by the chancellor, which she did. Eskridge appealed, claiming that the chancellor erred in ordering mediation, in relying on the Association’s findings and recommendations, and in not making findings of fact and conclusions of law.

The COA affirmed in Eskridge v. Peacock, decided December 4, 2018. Chief Judge Lee wrote for the unanimous court:

¶6. Eskridge first argues that the chancellor’s decision to appoint mediators was premature. Eskridge claims that the church had established by-laws for selecting a new pastor and had the by-laws been followed, the chancellor would not have needed to appoint mediators. Eskridge also alleges that the “mediators had their own agenda and had no direction from the Court.” [Fn 1]

[Fn 1] According to Eskridge, the church was not a member of the SCBA and as a result, the mediators lacked authority over the church. During the hearing, however, two people testified that the church was a member of the [Association].

¶7. As our supreme court has stated, the “court’s jurisdiction is limited to purely secular issues, and the court must not be involved in ecclesiastical issues.” [Pilgrim Rest Missionary Baptist Church ex rel Bd. of Deacons v. Wallace, 835 So.2d 67,] at 72 (¶11) [(Miss. 2003)] … . In Pilgrim Rest, the church did not have clear by-laws, so the chancellor established a procedure for the church members to vote on whether to retain the current pastor. Id. The supreme court later stated that “Pilgrim Rest represents a narrow exception to the longstanding practice of this Court to refuse to involve itself in ecclesiastical matters.” Greater Fairview Missionary Baptist Church v. Hollins, 160 So. 3d 223, 231 (¶29) (Miss. 2015). Unlike this case, Hollins involved a pastor who sought a temporary restraining order (TRO) after his congregation voted to terminate his employment. Id. at 233 (¶33). There, the chancellor issued the TRO, vacated the church’s vote of termination, and ordered the church to hold another vote. Id. The supreme court reversed, holding that “a pastor who is unhappy about being terminated by a church simply does not present a secular controversy.” Id.

¶8. This case is similar to Pilgrim Rest, not Hollins. The chancellor did not rule on who was entitled to be the new pastor. Instead, because the two groups were at odds and arguing over the interpled funds, the chancellor appointed mediators to oversee the election of the new pastor. At a hearing on the matter, the chancellor stated that “whatever [your] rules and regulations and by-laws are, they’re going to be followed.” And according to the church’s minutes from the business meeting, the “election was carried out in a fair and proper way and in accordance with the [church’s] by-laws as well as in accordance with the policies and procedures of the [SCBA] as indicated by” the moderators.

¶9. In this instance, we cannot find the “chancellor overstepped her bounds of jurisdiction in ordering an election when doing so was secular in purpose and sanctioned by other jurisdictions.” Pilgrim Rest, 835 So. 2d at 72 (¶11) (citations omitted). This issue is without merit.

As for the mediator’s findings, the court said this:

¶10. Eskridge next argues that the chancellor’s “ruling was based solely on the decision of the court-selected mediators who failed to follow the by-laws of the church.” Eskridge further contends that the mediators failed to determine whether the members who voted during mediation were members of the church at the time of Reverend White’s death.

¶11. Eskridge, however, has failed to show that the by-laws were not followed. In fact, as previously stated, the church minutes indicated that the by-laws were followed during the election process. The supreme court’s conclusion in Pilgrim Rest is applicable here: “There is absolutely no indication of [the chancellor] imposing an ecclesiastical dictate on the congregation of Pilgrim Rest. On the contrary, she merely sought to establish a procedure in which the majority of the Church could be heard thereby preserving the peace.” Id. at 73-74 (¶14). This issue is without merit.

And addressing the argument that the chancellor erred in not making findings:

¶12. Eskridge finally contends that the chancellor failed to make findings of fact and conclusions of law. Here, much of Eskridge’s argument is simply a reiteration of his previous arguments, which we found meritless. Eskridge does argue that the “the court also opines that the election was fair, but there is no indication of the method of the voting or the results.” The chancellor relied upon the findings presented by the SCBA and the minutes of the church’s business meeting—the meeting at which the election occurred.

¶13. Uniform Chancery Court Rule 4.01 states that “[i]n all actions where it is required or requested, pursuant to M.R.C.P. 52, [Fn 2] the Chancellor shall find the facts specially and state separately his conclusions of law thereon.” Eskridge never asked the chancellor to make findings of facts and conclusions of law. And he has not shown that the chancellor was required to do so in this instance. This issue is without merit.

[Fn 2] Mississippi Rule of Civil Procedure 52(a) states that: “In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law
thereon and judgment shall be entered accordingly.”

An observation or two or more:

  • Where to draw the Pilgrim Rest line can be tricky. Here the chancellor merely employed a procedure to ensure that the church’s own by-laws were followed. The result was an election that did follow the by-laws.
  • If you want the judge to make detailed findings you have to ask the judge to do that very thing.
  • I don’t get the argument that the SCBA was without authority to act as mediator because the church was not a member of the association. There is usually no relationship between a court-appointed mediator and the parties in mediation. It seems to me that the chancellor could have appointed a neutral party such as an attorney or CPA, or even the local Presbyterian Association to mediate.

 

 

Rehearing of Rehearing (aka “Reconsideration of Reconsideration”)

December 19, 2018 § 1 Comment

You only get one shot at a R59 rehearing (aka incorrectly as “reconsideration” among many lawyers and even in many appellate court opinions).

That means that, once the chancellor has ruled on your R59 motion, you can’t file a R59 motion asking for rehearing on that motion.

Here’s how I put it in a previous post:

In the case of Edwards v. Roberts, 771 So.2d 378 (Miss. Ct. App. 2000), the COA held that there is one round of R59 motions, and only one round. You do not get to file for rehearing after the judge has ruled on the motion for rehearing. If that were not so, one could almost permanently toll the time for appeal by filing serial R59 motions after every ruling on previously-filed R59 motions, ad infinitum. There has to be finality of judgments.

And here is how the MSSC put it in the said Edwards v. Roberts:

¶ 20. Nothing in the civil rules authorizes a motion to reconsider the denial of a motion for a JNOV or for a new trial. Motions for JNOV are governed by Rule 50(b) while motions for new trials are controlled by Rule 59. Under these rules, each motion must be filed within ten days of the entry of the judgment. M.R.C.P. 50(b) & 59(b). That initial motion for a JNOV was timely filed eight days after the 1991 judgment. However, the sua sponte “motion” to reconsider the just-entered order occurred over one year after the 1991 judgment. We must decide whether once a motion under Rule 50 is filed by a litigant, then denied by the court, any window of opportunity opens for the trial judge to act on his own initiative to reconsider the denial.

¶ 21. We start with the settled law that after a motion for new trial has been denied, no right exists to file for reconsideration. We find that reasoning equally applicable to motions for JNOV. “When the procedure authorizing a motion for a new trial has been followed and, pursuant to proper notice, the parties have made their representations to the court, and the court has duly considered and made his decision upon that motion, that completes both the duty and the prerogative of the court.” Griffin v. State, 565 So.2d 545, 550 (Miss.1990) (emphasis added). In Griffin, the lower court sustained two criminal defendants’ motion for new trial as to two of the counts, and overruled as to one count. Id. at 545. The defendants fled and were captured several years later. Id. At that time the State moved to set aside the order granting a new trial. Id. The judge sustained the State’s motions because he believed that he had made an error at law in granting a new trial. Id. On appeal, the Supreme Court found that the judge had no authority to revoke his earlier order for a new trial. Id.

¶ 22. The Griffin court relied on other states that had addressed the same question. Among other authorities, the court quoted the California Supreme Court’s holding that, “It has long been the rule that ‘A final order granting or denying [a motion for a new trial], regularly made, exhausts the court’s jurisdiction, and cannot be set aside or modified by the trial court except to correct clerical error or to give relief from inadvertence….’ ” Griffin, 565 So.2d at 549 (citing Wenzoski v. Central Banking Sys., 43 Cal.3d 539, 237 Cal.Rptr. 167, 736 P.2d 753, 754 (1987)). Once a motion for new trial has been ruled upon:

[I]f the party ruled against were permitted to go beyond the rules, make a motion for reconsideration, and persuade the judge to reverse himself, the question arises, why should not the other party who is now ruled against be permitted to make a motion for re-re-consideration, asking the court to again reverse himself? … This reflection brings one to realize what an unsatisfactory situation would exist if a judge could carry in his mind indefinitely a state of uncertainty as to what the final resolution of the matter should be.

Griffin, 565 So.2d at 549–50 (citing Drury v. Lunceford, 18 Utah 2d 74, 415 P.2d 662, 663–64 (1966)).

¶ 23. Though Griffin is a criminal case, the Supreme Court’s principal authorities for holding it improper to move for reconsideration of a motion for new trial were civil cases under versions of Rule 59. The Supreme Court’s conclusion that ruling on one motion for new trial exhausts the power of the court to entertain another such motion, certainly has an impact here. Until a judgment is final, a court has the authority to amend it. Griffin v. Tall Timbers Development, Inc., 681 So.2d 546, 552 (Miss.1996). Conversely, once it is final the authority is lost. The court’s initiating it own reconsideration removes the finality of the judgment after an earlier motion was denied. That creates the same difficulties that were discussed in Griffin v. State. Just as a second motion under Rule 59(a) cannot be brought by a party after an earlier Rule 59(a) motion has been denied, neither can the trial court itself entertain its own reconsideration under Rule 59(d) or Rule 50(b).

¶ 24. This is not to say that the finality of the judgment created by the denial of the first motion for new trial is absolutely unchangeable. Griffin v. State itself says that one last tool remains—correcting clerical error, relieving inadvertence, responding to newly discovered evidence, or otherwise considering the grounds for a Rule 60 motion. Griffin, 565 So.2d at 549. Since the state and federal versions of Rule 60 are similar, we can seek a better understanding of what can be achieved under Rule 60 by examining an explanation of federal caselaw. The Mississippi Supreme Court has said “the federal construction of the counterpart rule will be ‘persuasive of what our construction of our similarly worded rule ought to be.’ ” Bruce v. Bruce, 587 So.2d 898, 903 (Miss.1991) (citation omitted). The following section of an eminent treatise on the federal rules first explains that a denial of a new trial motion cannot be reconsidered, and then suggests what remains:

Term time as both a grant and limitation upon the district court’s power over its final judgments has been eliminated. [Fn omitted] In lieu thereof and in the interest of judgment finality a short time period, that is not subject to enlargement, has been substituted, within which a party may move for a new trial or to alter or amend the judgment. When the court has decided such a motion in a way that the finality of the judgment has been restored, then relief, if any, should come by appeal or by a motion under Rule 60(b), which does not affect the finality of the judgment or suspend its operation. It would be destructive of the general aim of the Rules to permit successive attacks upon final judgments on motions to reconsider orders that deny new trial, or that deny or grant an alteration or amendment of the judgment.

6A JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 59.13[1], at 59–278 (2d ed.1993) (emphasis added).

¶ 25. The relevant motion here was not a Rule 50(b) motion for a JNOV, since that motion had already been denied and there cannot be a second such motion. Instead, this was at best a Rule 60 motion initiated by the judge himself soon after he entered the February 24 judgment. There is no counterpart in Rule 60(b) to what is set out in Rule 59(d), namely, that the trial court itself may initiate a motion. In one somewhat distinguishable case, the Supreme Court held that a trial judge could not on his own motion grant relief from judgment under Rule 60(b). State ex rel. Mississippi Bureau of Narcotics v. One Chevrolet Nova Automobile, 573 So.2d 787, 789 (Miss.1990). However, that was a judge’s sua sponte setting aside of a Rule 55 default judgment five years after the default had been granted. Id. at 788–89. The court stated that no motion was made by any party to set aside the five year old default and the judge could not himself do so. Id. at 789.

¶ 26. What we find more in point is the general interpretation of federal Rule 60(b) that “the court has power to act in the interest of justice in an unusual case in which its attention has been directed to the necessity for relief by means other than a motion.” CHARLES ALLAN WRIGHT AND ARTHUR R. MILLER AND MARY KAY KANE, FEDERAL PRAC. & PROC. 226 § 2865 (2d ed.1973). If within three days of the February 24 order the trial judge became aware of something that he thought was cognizable under Rule 60, then the absence of a motion might not by itself bar consideration. Griffin v. State in dicta recognizes the right to correct inadvertent error. Griffin, 565 So.2d at 549.

¶ 27. We now look at what grounds for relief were appropriate. There are two sections to Rule 60 that allow relief from judgment. The first is for clerical mistakes, which may be corrected on the court’s own initiative. M.R.C.P. 60(a). However, this rule “can be utilized only to make the judgment or other document speak the truth; it cannot be used to make it say something other than was originally pronounced.” M.R.C.P. 60(a) cmt. The trial judge cannot on his own initiative change his mind and decide under Rule 60(a) that he should have granted the motion for JNOV instead of denying it. However, the rules seemingly permit a judge to decide that he always meant to sign an order that granted a motion but inadvertently signed a draft order denying it. This is the specific issue of Rule 60(b)(2), which is relief from judgment because of “accident or mistake.” …

¶ 28. Under Rule 60(b), the trial court on perhaps his own motion may decide that the original motion was entered by mistake, fraud of a party, or for other reason justifying relief from judgment. M.R.C.P. 60(b). Had the trial court believed that one of the grounds for Rule 60(b) existed and explained which one it was, then we could evaluate the validity of the exercise of discretion on February 27. Instead, the trial judge has informed us that no proper Rule 60 grounds existed.

¶ 29. Before leaving the procedure that was followed, we consider the propriety of the original trial judge’s addressing in these proceedings what he had done several years earlier. In a collateral attack on a former judgment, voidness is decided solely from what appears on the face of the record. Bolls v. Sharkey, 226 So.2d 372, 376 (Miss.1969). However, in a Rule 60 claim brought before the same court and involving the same parties, evidence beyond the pleadings and order themselves can be utilized. The comment to Rule 60(a) states that evidence outside the record can be considered. M.R.C.P. 60(a) cmt. No such explicit statement appears as to Rule 60(b), but the nature of the claims that can be made would require extraneous evidence. Accident, mistake, or fraud could not be shown except in the most unusual circumstances strictly from the record. In one case evidence was introduced at a Rule 60 hearing that an automatic stay in bankruptcy had been entered before the state court judgment was entered. This made the state court order void. Overbey v. Murray, 569 So.2d 303, 307 (Miss.1990). In another Rule 60 proceeding, evidence was admitted that the named corporate plaintiff did not exist, as it had sued under an incorrect name—“Mississippi Sand & Gravel” instead of the correct “South Mississippi Sand & Gravel.” The Supreme Court declared the earlier order void and set it aside. Southern Trucking Service, Inc. v. Mississippi Sand and Gravel, Inc., 483 So.2d 321, 324 (Miss.1986). See generally, Fred L. Banks, Jr., “Trial and Post Trial Motions,” in 1 JEFFREY L. JACKSON, MISSISSIPPI CIVIL PROCEDURE §§ 13:15—13:21 (1999).

¶ 30. Though evidence outside the record is admissible, this still does not mean under Rule 60(b) the judge himself should state what his reason had been for signing an order. Had the original trial judge not been ruling on the motion, the question would even more emphatically arise of whether evidence should be sought from the issuing judge of his reason for entering an order. We defer that issue since we find that even if Judge Hilburn had not been available for an explanation, the outcome would be the same. Since a trial judge does not have the authority to reconsider his denial of a motion for a JNOV, the court’s jurisdiction was exhausted after the February 24 denial. After jurisdiction was exhausted another order appeared. That order should be viewed as were orders under pre-Rules practice that were entered after the term of court. Formerly, once the term of court ended in which the final judgment was entered, a court lost control over its judgment. McNeeley v. Blain, 255 So.2d 923 (Miss.1971). Entering a new order after the expiration of the term was a nullity. McDaniel Bros. Const. Co. v. Jordy, 254 Miss. 839, 851, 183 So.2d 501, 506 (1966). There is no need to reacquaint ourselves with the intricacies of such rules other than to note that ending the power of the trial court to issue orders in a case is not a novel idea. A court does not have jurisdiction to enter orders indefinitely. Once the case is over, as with the end of the term of court in former practice or some other terminal event as under the civil rules, later orders by the court are not presumed valid because jurisdiction facially has been lost. We find that the Supreme Court has addressed this question:

[t]he doctrine, that a judgment however erroneous of a court having jurisdiction may not be collaterally assailed, is only correct when the court proceeds, after acquiring the jurisdiction, according to established rules governing the class to which the case belongs, and does not transcend, in the extent or character of its judgment, the law which is applicable to it.

Jones’ Estate v. Culley, 242 Miss. 822, 831–832, 134 So.2d 723, 726–727 (1961).

¶ 31. Since, the present suit is not a collateral attack but a claim under Rule 60 for relief from the court that issued the order, the right to set aside the order is all the clearer.

¶ 32. In the present case the circuit court initially had jurisdiction, but after entering the denial of the motion for a JNOV, jurisdiction ended. A similar defect in a court’s ruling occurs when a judge improperly alters a criminal sentence after his jurisdiction to do so has ended. See generally, Mississippi Comm’n on Judicial Performance v. Russell, 691 So.2d 929, 937 (Miss.1997).

So, could one get relief from a R59 ruling via R52(b)? Edwards v. Roberts goes on to answer in the negative:

¶ 34. … The dissent implies that the action was under Rule 52(b). That is a Rule for amending findings, not reversing decisions. A decision that “no” should be “yes” was the difference between the February 24 and February 27 orders. Though a Rule 52(b) can be made in tandem with Rule 50 and Rule 59 motions, once those motions are denied Rule 52(b) is not a means to ask for or for a judge to initiate reconsideration. Regardless, to presume that the court was acting under this Rule after its authority had otherwise expired—and of course the trial judge has since stated that he was not—is as speculative as any other possible means to justify the second order. Under the dissent’s analysis, Rule 52(b) becomes the opening for reconsidering a denial of reconsideration that Griffin said was beyond the court’s jurisdiction.

A R59 motion in chancery court is the equivalent of a motion for JNOV in a circuit or county court jury trial. Everything above pertaining to JNOV applies equally to R59 in chancery.

Tried by Consent

December 18, 2018 § Leave a comment

C.V. and Livia Sue Glennis sued their neighbors, Donald and Nerissa Booker for destruction of the Glennis’s shrubs. The chancellor awarded $1,320 in damages, and the Bookers appealed charging that the destruction of the shrubs had not been properly pled, and so was not an issue for trial.

In Booker v. Glennis, handed down October 30, 2018, the COA affirmed the award of damages. Here is how Judge Tindall, writing for a more or less unanimous court, addressed the issue:

¶12. The Bookers argue that the destruction of the shrubs was not an issue properly before the court and therefore was improperly determined.  The Bookers assert that they never consented to trying the claim for damages for the death of the shrubs. The record, however, reveals otherwise. At trial, upon request by the Bookers’ counsel, the chancellor allowed testimony beyond that of the Glennises’ contempt pleadings and treated all pleadings as amended to conform to the evidence tried and “to include the granting of any affirmative relief regarding the two parties . . . so as to minimize the future conflicts between them.” Later in trial, Bookers’ counsel again asked to go further into issues with his examination of Mr. Booker, and the chancellor allowed the expansion because “those issues are before the Court in the complaint and counter-complaint, requesting for affirmative relief filed pro se by the Bookers . . . .”

¶13. Both the Glennises’ counsel and the Bookers’ counsel elicited, on a number of occasions, witness testimony regarding the destruction of the shrubs. Further, during the cross-examination of Mr. Glennis, the chancellor indicated her understanding that “from listening to the testimony and looking at the photograph the shrubs that have been testified [about], [which] were not raised in the pleadings but have been testified [about,] [are being] tried by the consent of the parties . . . .” No party objected to this issue being tried. In fact, at the end of the trial, the Glennises’ counsel moved for their pleadings to be conformed to the proof submitted, and the Bookers’ counsel asserted, “[w]e would make the same motion, Your Honor.” Thereafter, in the subject order of July 5, 2016, the chancellor ordered “all of said pleadings . . . [be treated as] amended to conform to the evidence presented at the conclusion of trial due to multiple issues tried that were not pleaded.”

¶14. Mississippi Rule of Civil Procedure 15(b) permits issues to be tried by express consent of the parties.

When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure to so amend does not affect the result of the trial of these issues.

M.R.C.P. 15(b); Weiss v. Weiss, 579 So. 2d 539, 542 (Miss. 1991). As reflected in the record, counsel for both parties put on evidence regarding the shrub destruction, and counsel for both requested and consented to this amendment of the pleadings. Therefore this issue is without merit.

The record was abundantly clear that the lawyers intended, and the judge ruled, that the pleadings were amended to conform to the proof. That’s good lawyering and judging when the record leaves no doubt.

The Phantom Judgment

December 10, 2018 § 3 Comments

When is a final judgment not final … and not even a judgment?

That riddle was at the heart of the divorce case between Harold and Margie Arrington. On May 15, 2012, the chancellor signed a divorce judgment granting an irreconcilable differences divorce. For some reason the judgment was not filed with the chancery clerk until June 3, 2014. That’s 25 months after the judge signed it.

In the meantime, on August 23, 2013, Harold filed a withdrawal of his agreement to the divorce, following which he filed an amended complaint on the ground of desertion. After Margie filed an answer and counterclaim, Harold filed a motion to set aside the original judgment. The chancellor denied the motion noting that the divorce judgment was signed a year before the objection was filed. Harold appealed.

In Arrington v. Arrington, decided September 11, 2018, the COA reversed and remanded. Judge Griffis wrote for a unanimous court:

¶11. Mississippi Rule of Civil Procedure 58, titled “Entry of Judgment,” provides:

Every judgment shall be set forth on a separate document which bears the title of “Judgment.” However, a judgment which fully adjudicates the claim as to all parties and which has been entered as provided in M.R.C.P. 79(a) shall, in the absence of prejudice to a party, have the force and finality of a judgment even if it is not properly titled. A judgment shall be effective only when entered as provided in M.R.C.P. 79(a).

(Emphasis added). The Advisory Committee Notes to Rule 58 add that “[t]he ‘entry’ of the judgment is the ministerial notation of the judgment by the clerk of the court pursuant to Rules 38 and 79(a); however, it is crucial to the effectiveness of the judgment and for measuring time periods for appeal and the filing of various motions.” (Emphasis added).

¶12. Mississippi Rule of Civil Procedure 79, titled “Books and Records Kept by the Clerk and Entries Therein,” provides:

(a) General Docket. The clerk shall keep a book known as the “general docket” of such form and style as is required by law and shall enter therein each civil action to which these rules are made applicable. The file number of each action shall be noted on each page of the docket whereon an entry of the action is made. All papers filed with the clerk, all process issued and returns made thereon, all appearances, orders, verdicts, and judgments shall be noted in this general docket on the page assigned to the action and shall be marked with its file number. These entries shall be brief but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the
court and of the returns showing execution of process. The entry of an order or judgment shall show the date the entry is made. In the event a formal order is entered, the clerk shall insert the order in the file of the case.

(b) Minute Book. The clerk shall keep a correct copy of every judgment or order. This record shall be known as the “Minute Book.”

¶13. The Advisory Committee Note to Rule 79 adds [Fn omitted]:

Rule 79(a) specifies that the docket entries reflect the date on which entries are made in the general docket. Since several important time periods and deadlines are calculated from the date of the entry of judgments and orders, these entries must accurately reflect the actual date of the entries rather than another date, such as the date on which a judgment or order is signed by the judge. See, for example, Rule 58 mandating that a judgment is effective only when entered as provided in Rule 79(a), and Rule 59 which requires that motions to alter or amend judgments be filed within ten days after the entry of judgment.

¶14. Rule 58 clearly provides that “[a] judgment shall be effective only when entered as provided in Rule 79(a).” (Emphasis added). Rule 79(a) requires the clerk to keep a “general docket” and to enter “all . . . judgments.” Thus, we may conclude that a judgment is not final until it is recorded in the clerk’s general docket. M.R.C.P. 58, 79(a). See, e.g., Cleveland Nursing & Rehab. LLC v. Estate of Gully, 206 So. 3d 516, 521 (¶17) (Miss. 2016) (“Because the docket entry did not comply with Rule 79(a), the trial court did not abuse its discretion in finding that no judgment had been properly entered.”); Thompson v. City of Vicksburg, 813 So. 2d 717, 719-20 (¶11) (Miss. 2002) (Summary judgment was not a final appealable order because trial court did not enter a document styled “Final Judgment.”).

¶15. We find that, under Rules 58 and 79(a), the final decree signed by the chancellor was not final until it was entered by the chancery clerk on June 3, 2014.

Punch line: the judgment here was not effective as a judgment unless and until it was filed with the clerk per R79.

One quibble: In the Thompson v. City of Vicksburg case, the reversal was not due to the non-filing of a document styled “final judgment;” the reversal was due to the fact that there was no indication in the summary judgment that it was a final adjudication, and there was no other judgment in the record that appeared final. Remember that under R58, ” … a judgment which fully adjudicates the claim as to all parties, and which has been entered as provided in MRCP 79(a) shall, in the absence of prejudice to a party, have the force and finality even it is not properly titled.” In other words, by the express language of the rule, the court is supposed to look to substance rather than form.

Waiving a Motion by Inaction

December 5, 2018 § 1 Comment

When Christina and Billy Leblanc appeared for their divorce trial, also at issue was a contempt action that Christina had filed complaining that Billy had failed to pay the mortgage on the former marital residence as directed by the court in a temporary order. On the first day of trial Billy admitted in his testimony that he had not paid it as ordered.

On the second day of trial, however, the parties agreed to a consent to divorce that did not mention the contempt. The chancellor did not include an adjudication of contempt, and Christina appealed alleging several errors, including the non-adjudication of contempt. She contended that the chancellor should have awarded her a separate judgment for the mortgage arrearage.

In Leblanc v. Leblanc, decided October 23, 2018, the COA affirmed on this issue. Judge Wilson wrote for the unanimous court (Irving not participating):

¶69. As discussed above, the chancery court twice ordered Billy to pay the arrearage on the mortgage on the marital home, and Christina filed two contempt motions based on Billy’s failure to do so. Her second motion was still pending when trial began. On the first day of trial, Billy admitted that the mortgage was not current. He claimed that he was unable to pay it. Then, at the beginning of the second day of trial, the parties consented to an irreconcilable differences divorce. The chancery court’s final judgment awarded Christina the marital home, along with the mortgage. However, the court’s judgment did not specifically address Billy’s prior contempt or the arrearage. On appeal, Christina argues that the chancery court erred by not finding Billy in contempt and by not entering a separate judgment in her favor for the mortgage arrearage.

¶70. We conclude that the issue of Billy’s contempt was waived because the parties did not list contempt among the issues to be decided by the court. In an irreconcilable differences divorce, the issues that are to be decided by the court by the consent of the parties must be “specifically set forth.” See Miss. Code Ann. § 93-5-2(3) (Rev. 2013). “The language of section 93-5-2(3) is clear. A chancellor may decide contested issues in a divorce based upon irreconcilable differences. However, he is limited to the resolution of those issues specifically identified and personally agreed to in writing by the parties.” Myrick v. Myrick, 186 So. 3d 429, 433 (¶17) (Miss. Ct. App. 2016) (quoting Wideman v. Wideman, 909 So. 2d 140, 146 (¶22) (Miss. Ct. App. 2005)) (brackets omitted). Here, the parties agreed that the chancellor would decide issues related to child custody and support, equitable division, alimony, and insurance. Contempt was not mentioned when they consented to an irreconcilable differences divorce. Therefore, we hold that the issue was waived.

¶71. In addition, our general “rule is that a party making a motion must follow up that action by bringing it to the attention of the judge and by requesting a hearing upon it. It is the responsibility of the movant to obtain a ruling from the court on motions filed by him, and failure to do so constitutes a waiver of same.” Anderson v. McRae’s Inc., 931 So. 2d 674, 678 (¶10) (Miss. Ct. App. 2006) (emphasis added; quotation marks omitted). Here, Christina noticed her motion for a hearing on the first day of trial and mentioned the motion at the outset of trial; however, she did not request a ruling on the motion when she subsequently consented to an irreconcilable differences divorce, or at any time thereafter. Therefore, there is no “ruling from the [chancery] court” for this Court to review. Id. Accordingly, we conclude that Christina waived the issue by failing to obtain a ruling.

Okay, I get it that the issue was waived as a contested issue at this trial and for this appeal, but does that mean that Christina can’t ever recover what Billy didn’t pay? Does it mean that she permanently waived collection? Well, here is what Professor Bell said:

“The obligation to pay past-due temporary support survives a final judgment, even though the temporary support is replaced by a permanent support order. A payor was properly held in contempt for failure to make temporary child support, alimony, and mortgage payments totaling $2,900.” [Citing Langdon v. Langdon, 854 So. 2d 485, 496 (Miss. App. 2003). Also citing Baier v. Baier, 897 So. 2d 202, 205 (Miss. App. 2005) for the proposition that temporary arrearages may not be forgiven]. Bell on Mississippi Family Law, 2d Ed., § 14.02[3].

So it would appear that Christina may get another bite at that crabapple.

I see pleadings raising all sorts of issues and defenses, and motions filed along the way, that are never called up before the court for hearing. You need to heed the court’s warning that failure to bring those up for the court to address will waive them so that they can’t be raised on appeal.

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