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.

How You Name Your Pleadings Can Matter

December 4, 2018 § Leave a comment

Shortly after adoption of the MRCP the MSSC ruled that judges were to look past the form of motions and pleadings and were to consider the substance. Meaning that you could style a complaint as an “Application” or an answer as a “Response,” and the judge is supposed to treat it as its substance requires.

That’s a pretty harmless concept on the face of it, and it would seem to promote justice over formality. For lawyers who get too loosey-goosey with their filings, though, it can create some possibly damaging mischief.

A particular species of this problem is ambiguous labeling, such as occurs when lawyers file a “Motion to Reconsider” without specifying which rule they are invoking. You see, there is no such thing under the MRCP as “reconsideration,” and using that term without more throws into the judge’s lap the issue of how to treat it. In a specially-concurring opinion in Maness v. K&A Enterp, decided August 9, 2018, by the MSSC, Justice Maxwell eloquently described the how this can come back to bite you:

¶67. I write separately to address the Manesses’ so-called motions “for reconsideration.” While a harmless issue here, this case illustrates the confusion often created by such motions.

¶68. Technically, “[t]he Mississippi Rules of Civil Procedure do not provide for a motion for reconsideration.” McBride v. McBride, 110 So. 3d 356, 359 (Miss. Ct. App. 2013). Rule 54(b) does makes clear that a decision, order, or judgment that disposes of less than all claims by all parties is interlocutory and therefore “is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” Miss. R. Civ. P. 54(b). But once a judgment becomes final, the trial court loses its inherent “free[dom] to reconsider and reverse its decision for any reason it deems sufficient[.]” Cabral v. Brennan, 853 F.3d 763, 766 n.3 (5th Cir. 2017) (quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1075 n.14 (5th Cir. 1994) (en banc)).

¶69. Instead, the trial court’s power to modify a final judgment is limited by Rules 59 and 60. See Miss. R. Civ. P. 59, 60. Under Rule 59, the trial court may grant a new trial or alter the judgment “if convinced that a mistake of law or fact has been made, or that injustice would attend allowing the judgment to stand.” McNeese v. McNeese, 119 So. 3d 264, 272 (Miss. 2013). The trial court may also grant a new trial under Rule 59(a) based on newly discovered evidence. Id. Under Rule 60(a), the trial court may correct “[c]lerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission . . . .” Miss. R. Civ. P. 60(a). And under Rule 60(b), a trial court, upon motion,
“may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons”:

(1) fraud, misrepresentation, or other misconduct of an adverse party;

(2) accident or mistake;

(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;

(6) any other reason justifying relief from the judgment. [Fn 13]

Miss. R. Civ. P. 60(b).

[Fn 13] Though, at first blush, Rule 60(b)(6) could be construed as empowering trial courts to reconsider their prior judgments for “any other reason,” we have been clear that “[r]elief under Rule 60(b)(6) is reserved for extraordinary and compelling circumstances.” Briney
v. U.S. Fid. & Guar. Co., 714 So. 2d 962, 966 (Miss. 1998) (citations omitted).

¶70. To be granted any of the above relief requires more than mere “reconsideration.” Yet over the years, Mississippi practitioners have filed a slew of post-trial motions generically titled “motions to reconsider.” McBride, 110 So. 3d at 359-60. And once filed, courts are left to decipher what type of motion is actually being filed based on the timing and the substance of the request. A Rule 54(b) motion to revise an interlocutory order? A Rule 59(e) motion to alter or amend a final judgment? A Rule 59(a) motion for a new trial? A Rule 60(a) motion to correct an omission or clerical mistake? Or a Rule 60(b) motion for relief from a final judgment? See, e.g., City of Jackson v. Jackson Oaks Ltd. P’ship, 792 So. 2d 983, 984-85 (Miss. 2001) (holding that the trial court erred by failing to treat a party’s postjudgment motion, which was filed after the time limitation to file a Rule 59(e) motion, as a Rule 60(b) motion); Woods v. Victory Mktg., LLC, 111 So. 3d 1234, 1236 (Miss. Ct. App. 2013) (“The timing of the motion for reconsideration determines whether it is a Rule 59 or Rule 60(b) motion.”).

¶71. That is exactly what the chancellor had to do here. Faced with a “Supplemental Motion to Reconsider” and a “Motion to Reconsider,” it is understandable that the chancellor treated the Manesses’ motion as a Rule 59(e) motion to alter or amend, given that they put forth the reasons for granting a Rule 59(e) motion as justification for setting aside the grants of partial summary judgment. But, as the Manesses point out on appeal, a partial grant of summary judgment is a nonfinal order. And under Rule 54(b), the trial court may always set aside a nonfinal decision for any reason it deems just. Cabral, 853 F.3d at 766 n.3 (“[T]he higher standard in Rule 59(e) reflects the fact that judgment has already been entered, while the `more flexible’ Rule 54(b) standard reflects the district court’s inherent power to grant relief from interlocutory orders `as justice requires.'” (quoting Cobell v. Jewell, 802 F.3d 12, 25-26 (D.C. Cir. 2015))).

¶72. So the Manesses are right. The trial judge could have “reconsidered” his interlocutory decision to grant partial summary judgment without requiring the Manesses to meet the more “exacting” standard of Rule 59(e). Cabral, 853 F.3d at 766. But in this case, I fail to see how the motion misidentification prejudiced the Manesses. Like the appellants in the case they rely on, Cabral, the Manesses “do[ ] not explain how [they] could have been harmed by the procedural error.” Id. Beyond pointing out the trial court applied a more rigorous Rule 59(e) standard to a Rule 54(b) motion, they fail to demonstrate how the trial court’s applying the correct standard would have led to a different outcome. Indisputably, K&A was entitled to summary judgment on the issues of liability and damages. So the trial court could hardly be held in error for refusing to revisit these decisions prior to their becoming final.

¶73. Here, the Manesses’ using the Rule 59(e) standard to argue a Rule 54(b) motion led to harmless procedural error. But that may not hold true for every so-called “motion for reconsideration.” Motions for relief under Rules 54(b), 59(a), 59(e), 60(a), and 60(b) are not interchangeable. And courtroom lawyers would be wise not only to appreciate the differences between these rules but also label their motions according to the precise relief they seek.

For a number of posts where I have talked about this issue, enter the word “reconsideration” in the search box above.

Registering a Foreign Custody Adjudication

November 20, 2018 § Leave a comment

You can register a judgment or order for custody (hereinafter referred to as a “judgment”) rendered by another state in Mississippi by following MCA §93-27-305. Here are the highlights:

  • You can register the judgment with or without a simultaneous action for enforcement (93-27-305(1)).
  • A pleading, petition, motion, or even a letter requesting registration is filed with the chancery clerk of any county in the state (93-27-305(1) and (1)(a)).
  • Two copies, including one certified copy, of the judgment, accompanied by an affidavit that to the best of the affiant’s knowledge and belief the judgment has not been modified, must also be filed (93-27-305(1)(b)).
  • The name and address of the person seeking registration, as well as that of any parent or person in loco parentis who was awarded custody in the judgment must be stated in the petition (93-27-305(c)); however, the confidentiality protections of 93-27-209 are available to persons who qualify.
  • Notice is served on the person(s) named in 1(c) to provide them an opportunity to contest the registration (93-27-305(2)(b)).
  • The notice must state that the judgment: (1) will be enforceable on the date of registration the same as a Mississippi domestic judgment (93-27-305(3)(a)); (2) a hearing to contest registration must be requested within twenty days of the date of service of the notice (93-27-305(3)(b)); and (3) failure to contest registration will result in confirmation of the judgment’s custody determination, and further contest will be barred (97-27-305(3)(c)).
  • A person wishing to contest registration must request a hearing within twenty days of service of notice (93-27-305(4)).
  • At a hearing to contest registration, the court shall confirm registration unless the contestant establishes that either: (1) the issuing court did not have jurisdiction under the UCCJEA (93-27-305(4)(a)); or the custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction per the UCCJEA (93-27-305(4)(b); or (3) the contestant was entitled to notice per 93-27-108 in the originating court, but was not afforded that notice (93-27-305(4)(c)).
  • If a timely request for hearing is not filed, the court orders that the registration is confirmed as a matter of law, and all persons who were served with notice are notified of the confirmation (93-27-305(5)).
  • An order of confirmation precludes further contest of any matter that could have been contested at the time of confirmation of registration (93-27-305(6)).

In Edwards v. Zyla, 207 So. 3d 1232 (Miss. 2016), the MSSC held that chancery court, not county court, was the proper forum for registration of a foreign custody determination.

The Duty to Make a Record

October 23, 2018 § 3 Comments

Following a hearing on Kellie McCarley’s claim for separate maintenance from her husband, Rickey McCarley, the chancellor announced that, although she would like to make a ruling from the bench right then, she needed to review the exhibits first. She scheduled a telephone conference to discuss her ruling with the attorneys. In that conference, she gave her opinion denying Rickey’s claim for divorce and granted Kellie separate maintenance. The telephone conference was not recorded or otherwise made a part of the record. There was also an amended order that clarified the chancellor’s ground for awarding separate maintenance.

Rickey appealed arguing among other grounds that the chancellor erred in not directing that the telephone conference be made a part of the record.

The COA affirmed in McCarley v. McCarley, decided August 21, 2018, with an opinion by Judge Carlton:

¶10. Rickey argues that the chancellor erred in failing to direct that the transcript from the telephone opinion be made part of the record. Rickey asserts that the amended order only states the chancellor’s conclusions in very abbreviated form and contains none of the underlying facts nor applies the law to those facts.

¶11. In support of his argument, Rickey cites to Uniform Chancery Court Rule 4.02, which provides that a chancellor’s opinion may be given orally or in writing. If the chancellor pronounces her opinion orally, then “it shall be taken down by the [c]ourt [r]eporter who shall, when directed by the [c]ourt, transcribe the same and submit it to the [c]hancellor for correction and approval.” UCCR 4.02. Rule 4.02 mandates that whether the opinion rendered is made orally or in writing, it “shall be filed among the papers and become a part of the record in the cause without any order or direction to that effect.” Id.

¶12. We recognize that Rule 52(a) of the Mississippi Rules of Civil Procedure states that in cases tried 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.” (Emphasis added).

¶13. Similarly, Uniform Chancery Court Rule 4.01 provides “In all actions where it is required or requested, pursuant to [Rule] 52, the [c]hancellor shall find the facts specially and state separately his conclusions of law thereon. The request must be made either in writing, filed among the papers in the action, or dictated to the [c]ourt [r]eporter for record and called to the attention of the [c]hancellor.” (Emphasis added).

¶14. At the conclusion of the hearing in the present case, the chancellor scheduled a telephone conference with the attorneys. The chancellor explained that she would give her opinion on the matter via telephone and would also request one of the attorneys to prepare the order at that time. The record contains no transcript from the telephone conference, but the record does contain the chancellor’s written order and amended order setting forth her ruling.

¶15. In the chancellor’s amended order, she denied Rickey’s complaint for divorce on the ground of habitual cruel and inhuman treatment based on “lack of proof.” The chancellor also found “that [Kellie] is without material fault in the separation and that [Rickey] abandoned [Kellie] and has refused to provide any support.” The chancellor then determined that Kellie “has met the burden of proof necessary to support her claim for separate maintenance.” The record contains no request by Rickey or his attorney for the chancellor to find specially and state separately her conclusions of law.

¶16. We recognize that “[t]he burden rests upon the appellant to provide a record that contains all information needed for an understanding of matters relied upon for reversal on appeal.” Wells v. Price, 102 So. 3d 1250, 1259 (¶30) (Miss. Ct. App. 2012). This Court cannot consider or act upon matters not included in the record; rather, we “must confine ourselves to what actually does appear in the record.” Id. In Wells, 102 So. 3d at 1259 (¶32), the appellant failed to include in the record the transcripts from a bench trial and a telephone hearing, as well as the judgment entered after a separate bench trial. This Court affirmed the trial court’s judgment, explaining that “[b]ecause [the appellant] did not provide us an
adequate record, . . . we cannot find the trial court in error and must assume the trial court’s ruling is correct.” Id. [Fn 2]

[Fn 2] Cf. Daley v. Daley, 909 So. 2d 106, 107 (¶8) (Miss. Ct. App. 2005). In Daley, the record failed to contain a transcript of the proceedings before the chancellor or any factual or legal foundation for the chancellor’s decision below. Id. This Court acknowledged that Uniform Chancery Court Rules 4.01 and 4.02 provide that the chancellor can “create either an oral or a written record at his discretion,” but “if the chancellor opts for an oral opinion, it must be transcribed for the record.” Id. at 107-08 (¶9). This Court then remanded the case back to the chancellor with instructions for the chancellor to create a record of his factual findings and conclusions of law. Id. at 108 (¶10).

¶17. In Baggett v. Baggett, 246 So. 2d 887, 889 (¶21) (Miss. Ct. App. 2017), this Court found no merit to the appellant’s claim that the chancellor erred by failing to make findings of fact and conclusions of law in his judgment denying the appellant’s complaint for divorce. The Baggett court held that not only did the appellant fail to request that the chancellor make findings of fact and conclusions of law, but the facts of the case “were neither hotly contested, greatly in dispute, nor complex so as to require the chancellor to [make findings of fact and conclusions of law] without a request.” Id. at (¶19) (citing Tricon Metals & Servs., Inc. v. Topp, 516 So. 2d 236, 239 (Miss. 1987)).

¶18. Similarly, in Turner v. Turner, 744 So. 2d 332, 337 (¶22) (Miss. Ct. App. 1999), the appellant argued that the chancellor erred by failing to make separate findings of facts and conclusions of law or on-the-record findings regarding his award of child support. Upon review, this Court found no error, explaining that “neither party requested in writing, or in any other acceptable manner, that the chancellor issue separate findings of fact or
conclusions of law.” Id. at (¶26).

¶19. In the case before us, the record contains the transcript of the trial testimony from Rickey, Kellie, Penny, and Rickey’s brother, Roger. Although the record does not contain a transcript of the telephone conference with the attorneys where the chancellor made her ruling orally, the record does contain the chancellor’s amended written order reflecting her aforementioned ruling. Furthermore, Rule 4.02 mandates that if a party requests the chancellor to find the facts specially and state separately her conclusions of law, “[t]he request must be made either in writing, filed among the papers in the action, or dictated to the [c]ourt [r]eporter for record and called to the attention of the [c]hancellor.” No such request by either party appears in the record before us. This issue lacks merit.

I can’t add much to that.

How Far Can a Chancellor Go in a R59 Ruling?

October 22, 2018 § Leave a comment

Dallas Pevey sued his ex-wife, Marie Black, to modify child custody. The chancellor ruled for Marie but expressed reservations. Dallas filed a motion that the court considered under MRCP 59, and took additional testimony. Following that hearing, the chancellor reversed his prior ruling and found that Marie had testified falsely at the previous hearing. The court awarded custody to Dallas and Marie appealed. She contended that Dallas’s claimed newly discovered evidence was lacking, and that the trial court erred in essentially giving him a “do-over” trial.

In Black v. Pevey, decided August 28, 2018, the COA affirmed. The opinion speaks to the nature of a R59 motion (commonly called a “motion for reconsideration, although it is really a motion for rehearing according to its express terms) and what is the extent of authority that a chancellor may exercise in ruling on it. Judge Fair wrote the opinion for a unanimous court:

¶3. Marie contends that the chancery court erred in granting Dallas’s “motion to reconsider” because the claimed newly discovered evidence was lacking and could have been presented at the original hearing. Marie argues, essentially, that the chancery court gave Dallas a “do over” rather than holding him to the stricter standard that Rule 59 requires. But she is wrong about that legal standard.

¶4. It is true that, under the “new” Rules of Civil Procedure, the motion for reconsideration technically no longer exists. See Maness v. K &A Enters. of Miss. LLC, No. 2017-CA-00173, 2018 WL 3791250, at *12 (¶68) (Miss. Aug. 9, 2018) (Maxwell, J., specially concurring and joined by four other justices). But the motion at issue here was properly made, and considered, under Rule 59. See id.

¶5. The chancery court’s authority to modify the final judgment is “limited” by Rule 59, and it is a “higher” standard than under Rule 54(b), which allows a trial court to set aside interlocutory decisions for any reason it sees just. Id. at *13 (¶¶69, 71). Still, Rule 59 permits a chancery court substantial discretion to reconsider its decisions—either on the motion of a party, or sua sponte “for any reason for which it might have granted a new trial on motion of a party.” See M.R.C.P. 59(d). When a case has been tried to the court, Rule 59(a) expressly provides that a new trial may be granted “for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.” “The ground rules [for a Rule 59 motion in chancery court] include those that preexisted the Civil Rules regarding the grant or denial of trial court rehearings.” Mayoza v. Mayoza, 526 So. 2d 547, 549-50 (Miss. 1988). In In re Enlargement of Corporate Limits of Hattiesburg, 588 So. 2d 814, 828  (Miss.1991), the supreme court explained that “[i]n equity, the chancellor has always had entire control of his orders and decrees and authority to modify or vacate any of them on motion of any party, or on his own, prior to final judgment.” While the chancellor’s order may have been styled a final judgment, it was rendered non-final by Dallas’s filing of the motion to reconsider. See Wilson v. Mallett, 28 So. 3d 669, 670 (¶3) (Miss. Ct. App. 2009). “It is long-settled that when a final judgment is reopened [under Rule 59,] the judgment remains subject to the control of the court until the motion is disposed of and, until that time, does not become final.” E.E.O.C. v. United Ass’n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of the U.S. & Canada, Local No. 120, 235 F.3d 244, 250 (6th Cir. 2000).

¶6. To grant the motion under Rule 59, the chancery court need only be “convinced that a mistake of law or fact has been made, or that injustice would attend allowing the judgment to stand.” See Maness, 2018 WL 379125, at *13 (¶69) (Maxwell, J., specially concurring) (quoting McNeese v. McNeese, 119 So. 3d 264, 272 (¶20) (Miss. 2013)). This is an independent basis for granting the motion, distinct from the court’s authority to order a new trial on the presentation of newly discovered evidence. Id. “When hearing a motion under Rule 59(e), a trial court proceeds de novo, if not ab initio. Recognizing that to err is human, Rule 59(e) provides the trial court the proverbial chance to correct its own error to the end that we may pretermit the occasion for a less than divine appellate reaction.” Bruce v. Bruce, 587 So. 2d 898, 904 (Miss. 1991). A Rule 59 motion is the “functional equivalent” of a motion for rehearing on appeal. King v. King, 556 So. 2d 716, 722 (Miss. 1990).

¶7. Although Rule 59(a) refers to a “new trial,” when a case was tried to the court, the formality of a full retrial is not required. Under Rule 59(a), the chancellor “may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.” Id.

¶8. Motions under Rule 59 should be distinguished from motions under Rule 60(b), which seek “extraordinary relief” from a judgment that is truly final. Rule 60(b) motions are for “extraordinary and compelling circumstances” and “should be denied when they are merely an attempt to relitigate the case.” S. Healthcare Servs. Inc. v. Lloyd’s of London, 110 So. 3d 735, 742 (¶14) (Miss. 2013). “[T]he trial court has considerably broader discretionary authority under Rule 59(e) to grant relief than it does under Rule 60(b).” King, 556 So. 2d at 722.

¶9. In Adams v. Green, 474 So. 2d 577, 582 (Miss. 1985), the supreme court quoted its 1854 decision in Dorr v. Watson, 28 Miss. 383 (1854), which has been “consistently applied in case after case” ever since:

The granting of a new trial rests in a great measure upon the sound discretion of the court below, to be exercised under all the circumstances of the case with reference to several legal rules as well as the justice of a particular case. If a new trial be refused, a strong case must be shown to authorize the appellate court to say that it was error; and so, if it be granted, it must be manifest that it was improperly granted.
“[G]iven the important corrective role of new-trial motions, the discretion granted to the court is exceedingly broad.” Barriffe v. Estate of Nelson, 153 So. 3d 613, 618 (¶22) (Miss. 2014).

¶10. Sitting as an appellate court, we are in no position to second guess the chancellor on whether he made an error in his initial credibility determinations. We therefore can find no abuse of discretion in granting the Rule 59 motion.

That’s a helpful elucidation not only of the scope of R59, but also how it functions, what authority the court may exercise under it, and how far the court may go to use it to avoid an unjust decision.

I have to add for all of us now-older lawyers who were practicing when the MRCP went into effect: You have to love Judge Fair’s reference to the “new” rules of civil procedure in ¶4.

Oh, and that business about the so-called Motion for Reconsideration … more about that from the MSSC later.

Death and the Divorce Judgment

October 16, 2018 § Leave a comment

We’ve talked about the necessity of filing a judgment with the clerk as required in MRCP 58 and 79(a). It seems to be a fairly ironclad rule.

But there is at least one post-MRCP case in which no judgment was entered following trial, one of the parties died, and the MSSC upheld the chancellor’s nunc pro tunc entry of a divorce for a pre-death date.

Johnnie and Luke White underwent their fourth divorce from each other in 1992. In the course of the trial they agreed to a consent to divorce on the ground of irreconcilable differences that was handwritten, signed by each of them, and filed with the clerk. Following the trial, the chancellor ruled from the bench on the contested issues, directed that the parties be divorced, and ordered Luke’s attorney to draft a judgment. Following the trial, and before the judgment could be entered, Luke died.

Luke’s brother filed a R25 Suggestion of Death and asked to be substituted as a party for the sole purpose of entering a judgment. After hearing both sides the chancellor executed a judgment dating it nunc pro tunc to the date when he had ruled on the contested issues. Johnnie appealed. In the case of White v. Smith, 643 So.2d 875 (Miss. 1994), the MSSC affirmed. (Note that Smith was the administratrix of Luke’s estate, and she was substituted for Luke’s brother as a party in the appeal).

Justice Pittman wrote the unanimous opinion for the court, which is excerpted here in part, beginning at page 880:

“Courts may by nunc pro tunc orders supply omissions in the record of what had previously been done, and by mistake or neglect not entered.” Green v. Myrick, 177 Miss. 778, 171 So. 774 (1937). Nunc pro tunc means “now for then” and when applied to the entry of a legal order or judgment, it normally does not refer to a new or fresh (de novo) decision, as when a decision is made after the death of a party, but relates to a ruling or action actually previously made or done but concerning which for some reason the record thereof is defective or omitted. The later record making does not itself have a retroactive effect but it constitutes the later evidence of a prior effectual act. Thrash v. Thrash, 385 So.2d 961, 963 (Miss.1980), quoting Becker v. King, 307 So.2d 855, 858-59 (Fl.App.1975).

Johnnie relies on Pittman v. Pittman, 375 So.2d 415 (Miss.1979), in support of the arguments raised in issues I, III and IV. The facts in Pittman reflect that Ella Polk Pittman filed a petition for a divorce and requested that she be granted a divorce on the grounds of habitual cruel and inhuman treatment. The hearing was held on September 26, 1978, and the final decree was not entered until October 27, 1978. Some three weeks after receiving the letter, a decree was prepared and mailed to the chancellor. This decree was signed by the chancellor and filed on October 27, 1978. Petitioner died in the interim on October 17, 1978.

This Court held, on the facts of the case, that the death of the party prior to the entering of the decree had rendered moot the question on divorce, stating that “all issues in the case were incidental to the request for a divorce and the contest thereon, and the entire cause died with the complainant.” Pittman, 375 So.2d at 417.

Unlike the facts in Pittman, in the present case, there was a formal adjudication of the issues in writing and signed by the chancellor, prior to the death of one of the parties.

Johnnie also cites Griffith, Mississippi Chancery Practice § 620, at 667 (1950), which states in part:

A valid decree cannot be rendered in favor of two persons, one of whom at the time is dead. Such a decree is void. And likewise a decree rendered against a defendant after his death is void, if he was the sole defendant or was an indispensable party to the suit-although the interlocutory decree was rendered while he was alive.

The general rule is that the death of a party in a divorce action prior to the final decree ends the marriage of the parties and cancels the bill of complaint for divorce. Pittman v. Pittman, 375 So.2d 415 (Miss.1979).

The case of Thrash v. Thrash, 385 So.2d 961 (Miss.1980), is directly analogous to the case sub judice. In Thrash, the wife petitioned the court for a divorce on the ground of habitual cruel and inhuman treatment. The husband answered and filed a cross-bill in which he prayed for a divorce upon similar grounds. The case was fully tried and submitted to the chancellor for final decision. The chancellor took the matter under advisement and on March 31, 1978, determined all issues on the merits and rendered his decision by written opinion. The opinion was signed and filed with the clerk on April 1, 1978. The chancellor awarded the husband a divorce upon the grounds set forth in the cross-bill. A decree was drafted, approved by both solicitors, and forwarded to the chancellor for signature. This decree was duly received by the chancellor on April 8, 1978, signed by him on that same date, but dated April 10, 1978. The husband was killed on April 9, 1978.

On May 16, 1978, Pearl Marie Thrash filed a suggestion of death and motion to dismiss. The motion was based on the fact that the appellee had died prior to the decree’s being filed. The chancellor dismissed the motion and ordered the decree of divorce theretofore signed by the chancellor, to be entered nunc pro tunc, the date it was signed by the first chancellor, April 8, 1978.

The appellant in Thrash claimed that the decree signed by the chancellor on April 8, 1978, and dated April 10, 1978, was without effect and a nullity because appellee died on April 9, 1978, before the decree was filed with the clerk.

The majority opinion in Thrash relied on Section 11-7-25, Mississippi Code Annotated (1972), which in pertinent part provides:

Where either party shall die between verdict and judgment, such death need not be suggested in abatement, but judgment may be entered as if both parties were living….

Applying § 11-7-25, this Court determined that “in a case such as this, where the case has been fully tried and finally decided on its merits and nothing remains to be done except the entry of a decree, the decree would follow as if both parties were living.” Thrash, 385 So.2d at 962.

We have concluded that, in the absence of some special circumstances such as would cause a miscarriage of justice by so doing, the provisions of that section [§ 11-7-25] apply in a case such as this, the death of the husband having occurred long after the formal decision of all issues by the trier of facts. To hold otherwise, we think, would work a manifest miscarriage of justice.

Thrash, 385 So.2d at 964.

In the present case, from a technical standpoint, Luther died while married, since his death was prior to the entry of the decree. However, the record clearly indicates that all submitted issues had been litigated and ruled upon by the chancellor on November 2, 1992. Nothing more was to be accomplished in the interim between the ruling and formal filing of the judgment.

In addition to the reliance on § 11-7-25, the Thrash opinion quoted extensively from 104 A.L.R. 654, 664 (1936):

The general rule, so far as a general rule may be deduced from the few cases falling within this subdivision, is that, if the facts justifying the entry of a decree were adjudicated during the lifetime of the parties to a divorce action, so that a decree was rendered or could or should have been rendered thereon immediately, but for some reason was not entered as such on the judgment record, the death of one of the parties to the action subsequently to the rendition thereof, but before it is in fact entered upon the record, does not prevent the entry of a decree nunc pro tunc to take effect as of a time prior to the death of the party. [citations omitted] But if no such final adjudication was made during the lifetime of the parties, a decree nunc pro tunc may not be entered after the death of one of the parties, to take effect as of a prior date. [citations omitted]

Id. at 962-63.

Because the chancellor both fully considered all issues raised by the parties and rendered his opinion prior to Luther White’s death, the order entering judgment of divorce nunc pro tunc was not manifestly in error, and as such, does not create reversible error.

Although the case can be construed to apply narrowly to its peculiar facts, it’s hard to get around the basic principle announced in it that, ” … all submitted issues had been litigated and ruled upon by the chancellor … Nothing more was to be accomplished in the interim between the ruling and formal filing of the judgment.”

It’s not easy to square that general principle with the current strict application of R58 and 79. This is the MSSC’s word on the subject, though, and it is still good law.

Another post dealing with White and entry of judgments is at this link.

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