No Appeal from an “Interim” Judgment
March 25, 2014 § Leave a comment
Frank Lewis is a name you might recall from a previous post. I posted about his case in a post entitled Guardian or Conservator?, back in 2011. Mr. Lewis was the indoividual for whom an adult guardianship was established in chancery court, and the COA reversed for failure to comply in all respects with the statute vis a vis joinder of relatives. The case was remanded for further proceedings to cure the defects and then to determine the need for a guardianship.
Mr. Lewis died, however, during the pendency of the appeal, which was not taken into account by the COA opinion, although a suggestion of death had been filed. His death, however, did not end the family- controversy-riddled matter.
The executor of Lewis’s estate filed a petition with the trial court to recover all of the attorney’s fees that had been paid out by the guardianship, totalling some $15,000, since the guardianship had been reversed on appeal. The attorneys against whom the petition was filed responded with a counterclaim under the Litigation Accountability Act (LAA) asking for attorney’s fees incurred in defending the executor’s action.
The chancellor ruled that the guardianship had, indeed, been necessary to tend to Mr. Lewis’s business. All parties then agreed that the court’s ruling rendered the executor’s claim for recovery of attorney’s fees moot.
That left the LAA counterclaim. The chancellor deferred a decision on the LAA to determine whether the executor’s action had been frivolous, and to consider proof of the actual damages incurred in defending it. He set the hearing for a future date.
The executor asked for an interlocutory appeal, and the court granted a recess to allow the parties to discuss it, without any result of record.
Several days later, the chancellor entered a two-page judgment entitled “Interim Judgment,” adjudicating the necessity of the guardianship and ruling the executor’s claims moot, but not adjudicating the LAA counterclaim. On the face of the Interim Judgment, the words “THIS IS A FINAL JUDGMENT” had been stricken through in ink [Note: The court in that district requires the stricken language to appear on the face of all final judgments].
The executor (referred to by the COA as “Junior”) appealed. In the case of Estate of Frank Lewis: Lewis v. Harvey and Logan, handed down March 18, 2014, the COA found that it lacked jurisdiction on familiar grounds. Judge Maxwell wrote for the court:
¶13. We employ a de novo standard in reviewing jurisdictional issues. R.A.S. v. S.S., 66 So. 3d 1257, 1259 (¶10) (Miss. Ct. App. 2011) (citing Calvert v. Griggs, 992 So. 2d 627, 631 (¶9) (Miss. 2008)). Although not raised by either party, we must examine the finality of a judgment on our own initiative. Id. (citing M.W.F. v. D.D.F., 926 So. 2d 897, 899 (¶4) (Miss. 2006)).
¶14. “As a general rule, only final judgments are appealable.” Maurer v. Boyd, 111 So. 3d 690, 693 (¶11) (Miss. Ct. App. 2013). See also Miss. Code Ann. § 9-3-9 (Rev. 2002); Miss. Code Ann. § 11-51-3 (Rev. 2012); M.R.A.P. 5. “A final, appealable judgment is one that ‘adjudicates the merits of the controversy [and] settles all issues as to all the parties’ and requires no further action by the trial court.” Maurer, 111 So. 3d at 693 (¶11) (quoting Walters v. Walters, 956 So. 2d 1050, 1053 (¶8) (Miss. Ct. App. 2007)). “When all the issues in a case or claims against all the parties are not resolved in a judgment, no appeal of right can be taken.” Thompson v. True Temper Sports, Inc., 74 So. 3d 936, 938 (¶6) (Miss. Ct. App. 2011) (quoting Williams v. Bud Wilson’s Mobile Home Serv., 887 So. 2d 830, 832 (¶5) (Miss. Ct. App. 2004)).
¶15. It really cannot be argued that an order labeled “Interim Judgment” is a final, appealable judgment—particularly when the language “THIS IS A FINAL JUDGMENT” has been scratched out and initialed by the judge, and the judge has apparently not ruled on a pending issue. While there are exceptions to the final-judgment rule—including obtaining permission to pursue an interlocutory appeal under Mississippi Rule of Appellate Procedure 5 or appealing from a Mississippi Rule of Civil Procedure 54(b)-certified final judgment—none are applicable here. [Foontnote omitted]
¶16. Because there is no record evidence that the issue of attorneys’ fees incurred defending Junior’s allegedly frivolous petition was ever resolved, the “Interim Judgment” is not final and appealable. So we must dismiss for lack of jurisdiction.
Nothing really earth-shattering here. It’s just a different spin on a theme we’ve visited fairly frequently over the past couple of years: that a judgment disposing of fewer than all of the issues is not a final, appealable judgment.
Nobody asked me, but I’m going to offer my view that if the document had been styled merely “Judgment,” and the words “THIS IS A FINAL JUDGMENT” had not been stricken, the same result would apply. And that’s so even if the chancellor had given the green light for an interlocutory appeal. All of that is so because the order entered disposed of fewer than all of the pending issues, and the court did not make any specific findings as to why there was no just reason for delay in entry of a judgment, as required by R54(b). You might see it differently.
Enforcing the Temporary Order
February 19, 2014 § Leave a comment
Does entry of a final judgment of divorce eliminate the possibility of an action to collect unpaid amounts due under a temporary order?
It’s not uncommon to be getting your waterfowl in a row for final hearing next week only to learn from your client for the first time that her husband owes her a couple of thou in child support or house payments or temporary alimony, and that news is followed by the query ” … and what are you going to do about it?”
So … what are you going to do about it?
In the COA case of O’Brien v. O’Brien, handed down February 11, 2014, Judge Griffis addressed the appellant’s argument that it was improper for the chancellor to find him in contempt of the temporary order after the final judgment of divorce was entered:
¶10. Mississippi Code Annotated section 93-5-17(2) (Rev. 2013) provides that a chancellor may “hear complaints for temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.” Further, this Court may allow retroactive awards of temporary support even after a divorce judgment is entered. Strong v. Strong, 981 So. 2d 1052, 1055 (¶15) (Miss. Ct. App. 2008). Temporary support ends when a final judgment is entered. Bond v. Bond, 355 So. 2d 672, 674-675 (Miss. 1991). However, a payor still has a duty to pay past-due temporary support, as a final decree of divorce does not preclude a chancellor from entering a judgment for arrearages of temporary support without having to express the right to enforce the judgment in the final divorce decree. Lewis v. Lewis, 586 So. 2d 740, 742 (Miss. 1991).
You have several ways to approach enforcement of temporary orders:
- You can wait until the final judgment is entered and file a contempt action. Fair warning: bring your authority (e.g., the above paragraph) with you to court because I have had chancellors question the viability of such actions when I practiced.
- With enough advance warning you can file a contempt action during the pendency of the divorce and ask that it be heard in advance of the final hearing.
- Many lawyers will agree to combine temporary contempt issues with the final hearing. That is often done in this district. You can do that by pleading, of course, or by stipulation or agreed order, or it can be listed as a contested issue in a consent.
The main thing to remember is that amounts that were ordered to be paid under a temporary order are vested when due, and the right to collect them does not terminate on entry of the final judgment, even though the final judgment does terminate the temporary order itself. And it is not necessary for the final judgment of divorce to recite or provide for a right of future enforcement of the temporary order.
A Proper MRCP 54(b) Certification
February 11, 2014 § Leave a comment
In February, 1969, John Whitehead, Jr., executed a will naming his wife, Marie, and their four sons at the time, each mentioned by name, as his beneficiaries. The will set up a family trust to support Marie for her life, and then to support the named sons until each reached age 30, at which time each would receive his share of the corpus.
There were two subsequent codicils to the will. There were also two after-born children, one legitimate and one illegitimate.
The will and codicils were admitted to probate, and Jonathan, the illegitimate son, filed a declaratory judgment action in the estate proceeding asking the court to declare that he was a residuary beneficiary because the trust failed.
The chancellor granted summary judgment in favor of the estate, adding a R54(b) certification of finality, finding that there was “no just cause for delay.”
The COA took the case and affirmed in Whitehead v. Estate of Whitehead, rendered September 24, 2013.
This case illustrates what I consider to be an ideal situation for application of R54(b). The judge’s ruling disposed of all of Jonathan’s issues in the estate. The declaratory judgment action was essentially put to an end by the R56 summary judgment, so there was no sense in making Jonathan await the closing of the estate, which may take some considerably longer time, before he could take his appeal. The R54(b) ruling had the added advantage that, if the COA reversed, Jonathan could possibly return to the chancery court to participate in the ongoing administration of the estate.
I’ve posted here many times about cases rejected by our appellate courts due to no or improper R54(b) certification. Reading the R54(b) decisions, it appears that oftentimes it is unclear whether the case is a proper one for its application. This case was pretty clear.
Don’t Overlook the Practicalities when Dealing with Visitation
January 29, 2014 § 1 Comment
When Wesley and Janet Jaggers got their irreconcilable differences divorce in April, 2004, Janet got custody, and Wesley got visitation.
Soon afterward, only three months after the divorce, they agreed to a modification judgment that included the following language:
[E]ach parent shall allow the children to attend and participate in the scheduled extra-curricular activities of each child, including baseball, speech therapy, etc., it being the intention of this paragraph that the children’s regular schedules be maintained so as to provide as great a degree [of] continuity as possible.
That language sets a lofty aspiration for the parties, and its spirit is certainly commendable. But it leaves some questions unanswered, such as: who does the scheduling; what are the limits on extra-curricular activities; who gets to determine what the children’s regular schedules are?
In time conflict arose between the parties over the fact that Janet scheduled baseball games, out-of-town tournaments, and other activities of the children during Wesley’s visitation time. Wesley petitioned the court for relief.
Wesley argued that Janet’s conduct violated his sacrosanct parental right to visitation without interference. Janet invoked the polestar best-interest-of-the-child principle. Immovable object meet irresistable force.
The chancellor fashioned a remedy he deemed to be in the best interest of the children, providing for Wesley to have make-up visitation if the children’s travel schedule interfered with his visitation. The chancellor relied heavily on the parties’ own language adopted in the agreed modification judgment. On appeal, the COA affirmed in Jaggers v. Magruder, handed down January 7, 2014, deferring to the chancellor’s considerable discretion in this area.
A few desultory thoughts:
- I wonder whether more attention to detail in that modification judgment might have produced a different result, or even avoided this litigation entirely. As a lawyer, you have a considerable body of experience to draw on when you draft language to solve a client’s legal problem. You know from experience what situations give rise to certain kinds of problems. Bring that experience to bear when advising your client.
- I think it’s a good idea to avoid aspirational language in agreed judgments and PSA’s. Language like “The parties agree that they will do all in their power to foster good feelings and to encourage love and devotion between parent and child” just seems to me to be a recipe for future litigation.
- Address the practicalities in every order or PSA dealing with visitation. Who is responsible to pick up and return? What times? Who may accompany or take the place of the visiting parent? Who decides about scheduling extra-curricular activities during visitation time? What are the conditions for make-up visitation? Yes, I know that the parties have to bring some good faith to the table, but you can ward off some bad behavior based on your experience. And I know, too, that no one can anticipate every conceivable problem, but I am not suggesting that you address every conceivable problem — only the ones you shuold reasonably anticipate you can avoid in advance based on your experience.
- The issue of the boundaries of the parents’ respective rights vis a vis visitation is one of the thorniest and most difficult to resolve for any chancellor. It’s as hard for a chancellor to resolve as it is for the lawyer to offer advice. That’s because of the competing equities that almost always have almost equal weight. I am glad that the appellate courts leave these issues largely in the discretion of the chancellor rather than conjuring up formulaic solutions that don’t fit the nuances in most situations.
- This case is yet another in which the chancellor did not accept or implement the recommendation of the GAL. Keep in mind that the chancellor is never bound by the GAL’s recommendations.
The Not-so-Illusory Agreement
January 16, 2014 § Leave a comment
It has long been the law in Mississippi that parties effect extra-judicial modifications at their peril, and that chancery courts are neither designed or equipped to enforce such agreements.
Only last September we read here about Donald Brewer and Penny Holliday, who had agreed to modify their divorce judgment vis a vis custody and support. They had lawyers incorporate their agreement into an agreed judgment, and they proceeded to conform to the agreement in nearly every respect for several years. Only problem is, no one ever saw to it that the agreed judgment was entered. Both Donald and Penny believed that it had been entered. When the parties had a falling out and wound up back in court, the chancellor refused to enforce the agreement, notwithstanding the course of compliance, and found Donald in contempt. The COA affirmed, as you can read in the previous post.
Donald in due course persuaded the MSSC to take another look, and in Brewer v. Holliday, decided by the MSSC on January 9, 2013, the high court reversed. Justice Dickinson’s opinion states, in part:
¶14. This Court has recognized that, at times, equity may “suggest ex post facto approval of extra-judicial adjustments in the manner and form in which support payments have been made.” [citation omitted] For instance, in Alexander v. Alexander, this Court held that equity required crediting a father for payments of child support made directly to the child – once the child moved in with him – instead of to the mother. [citation omitted] And in Varner v. Varner, we explained that “the father may receive credit for having paid child support where, in fact, he paid the support directly to or for the benefit of the child, where to hold otherwise would unjustly enrich the mother.” [citation omitted] Noncustodial parents pay child support to custodial parents for the benefit of the child, not the parent, [citation omitted] and that support belongs to the child, not the custodial parent. [citation omitted]
[Note: read the opinion at the link for the case citations. Copying and pasting numerous footnotes is too cumbersome for this blog]
The court went on to remand the case for the chancellor to consider the fact that the child resided with Donald, à la Varner, finding that the arrangement should have been taken into account by the judge at the original hearing.
There is no airtight rule against enforcement of extra-judicial modifications. Each case must be considered on its own merits, and the equities must be weighed. Here, the high court considered that it would be best for Donald’s equities to be taken into account, rather than closing the door on enforcement of the agreement. No doubt the parties’ ignorance of the fact that the judgment had never been entered, coupled with their compliance with it for a time, had persuasive weight in this particular case.
A Due Process Wrinkle for Child Support
January 2, 2014 § Leave a comment
Helping a client collect past-due child support can be devilishly difficult, particularly when the obligated parent disappears, or tries to.
If you will look at MCA 93-11-65(5) and (7), you may find some help.
MCA 93-11-65(5) mirrors UCCR 8.06 in its requirement that both parties in cases involving minor children must keep each other and the court informed of the party’s residence address and telephone number. It goes further, however, for child support cases, and requires that both parties notify each other and the court and the state child support registry of the party’s ” … location and identity, including social security number, residdential and mailing addresses, telephone numbers, photograph, driver’s license number, and name, address and telephone number of the party’s employer.” The information is required upon entry of an order or within five days of a change of address. [Note: Although the statute specifically refers to change of address, it would seem that a court order could direct updating on change of any particular].
Applying the foregoing, you will do your child support client a great service by making sure that the above language is in every child support order you submit to the court, and that you make sure that the appropriate information on both parties is filed as required, including with the state registry, as directed in the statute.
Why go to that trouble?
Well, that’s where MCA 93-11-65(7) comes in. It provides that “In any subsequent child support enforcement action between the parties, upon sufficient showing that diligent effort has been made to ascertain the location of a party, due process requirements for notice and service of process shall be deemed to be met with respect to the party upon delivery of written notice to the most recent residential or employer address filed with the state case registry.”
So, after diligent search and inquiry to locate the slacker, you issue process to his or her last reported residence address or employer, and — Volia! — you have personal jurisdiction under the statute. Note the language “filed with the state case registry.” That’s a key component. You must have seen to it that the info was filed with the state registry.
The case registry is provided for in MCA 43-19-31(l)(ii) [that’s lowercase L], and is to be maintained by DHS.
To be honest, I have yet to see anyone avail themselves of this procedure. If you have had experience with it, I would welcome your comments. It seems to me to be quite advantageous to private parties trying to enforce child support obligations
Temporary Setbacks, Part I
December 30, 2013 § 4 Comments
A reader of this blog in N. Mississippi emailed me with an interesting question week before last. He asked whether the following is a common practice in other areas of the state:
I have recently been on the receiving end of opposite counsel filing for divorce on sole ground of Irreconcilable Differences, asking for temporary relief-custody, support, use of home, setting for hearing. I have objected by 12b failure to make a claim for which relief can be granted. We have worked around the 2 cases without necessity of a ruling.
Before proceeding further, I can say that in this district it is a longstanding practice not to allow temporary hearings in cases where the sole ground for divorce is irreconcilable differences. Our thinking is that an ID divorce requires an agreement, either a PSA or a consent, for the court to act, and that absent that agreement no relief is possible. Please note that I am talking only about a complaint on the sole ground of irreconcilable differences, and not: (1) a complaint in which ID is an alternative ground; or (2) where there is a separate count for, say, custody.
The authority of a chancellor in such cases is MCA 93-5-17, which states that “The chancellor in vacation [and presumably during a term] may, upon reasonable notice, hear complaints for temporary alimony, temporary custody of children and temporary child support and may make all proper orders and judgments thereon.”
As far as I can discover, there is no case law on point. Temporary orders are not appealable, so the dearth of decisions is no surprise.
I polled some chancellors to see what the practice is in their districts, and, as one might suspect, the answers are all over the ballpark. Now, before someone opines that “we need to come up with a uniform practice” for temporaries, keep in mind that the statute specifically says that the chancellor “may” grant temporary relief. It has long been the practice that it is discretionary with chancellors whether to allow a temporary hearing at all, and, if so, the form of that hearing (more on that point in Part II). Here is what the various chancellors who responded said:
- “No.”
- “If they allege and show ‘urgent and necessitous circumstances’ I would allow a temporary.”
- “Assuming you are talking about temporary relief relative to custody and support and use of marital home incident thetero, yes we do allow temporary hearings.”
- “I do not allow temporary hearings in ID divorces. The statutory premise for ID is agreement on all issues. I do not think you can expand on what the statute allows. I am sure that someone will opine that it could be done statutorily by ‘consent’ but I would counter that with, the issues tried by consent can be appealed, a temporary cannot. As an aside, it seems when you do a temporary in an ID the court may be tipping the scales one way or the other in the negotiations.”
- “I have never conducted an actual hearing but I have signed agreed temporary orders incorporating the PSA.”
- “[In this district] temp order[s] setting support and custody (at least) are issued in ID divorce cases all the time … to say this is a common practice in our district would be an understatement.”
- “I do not allow temporary hearings on ID only complaints. I would sign [an order adopting] a stipulation between the parties …”
- “No. Never. No justiciable issue.”
That’s about 20% of the chancellors.
If you wind up with a temporary hearing in an unfamiliar district, you would do well to contact a lawyer there who practices in that court and can let you know what to expect.
A Rule 54(b) Quandary
December 18, 2013 § Leave a comment
What does one do when the chancellor adds language to a ruling on a particular issue to the effect that it is certified as a final, appealable judgment, although the ruling leaves intact the lawsuit between the parties?
That is the quandary that confronted the Northeast Mental Health-Mental Retardation Commission in a case it filed against V.M. Cleveland to void a lease that it considered unreasonable. Cleveland filed a counterclaim asking for damages for breach of contract and for a declaration that the lease was enforceable. Both parties filed motions for summary judgment. The chancellor denied the Commission’s motion in toto, but granted Cleveland’s motion in part, ruling only that the lease was enforceable, and denying the remainder of the motion because there were genuine issues of material fact, etc. After he ruled on the two R56 motions, the judge added, on his own initiative, that “Insofar as the enforceability of the contract, the court certifies that this is a final decision, appealable pursuant to MRCP 54(b).”
Faced with uncertainty as to what it should do, the Commission filed both an MRAP 5 application for an interlocutory appeal, and an MRAP 3 notice of appeal. The agency frankly admitted to the court that it was unsure which was the appropriate avenue, if any, to take vis a vis an appeal.
On November 21, 2013, the MSSC denied the petition for interlocutory appeal, leaving the MRAP 3 appeal pending before the COA. The COA decided the case of Commission v. Cleveland with fairly predictable results on December 3, 2013. Judge Maxwell’s opinion for the court, lays it out:
¶12. Only final judgments may be appealed. Harris v. Waters, 40 So. 3d 657, 658 (¶3) (Miss. Ct. App. 2010). “A final, appealable[] judgment is one that adjudicates the merits of the controversy which settles all issues as to all the parties and requires no further action by the lower court.” Walters v. Walters, 956 So. 2d 1050, 1053 (¶8) (Miss. Ct. App. 2007) (emphasis added and internal quotation marks omitted).
¶13. “Rule 54(b) provides an exception to the final-judgment rule.” Harris, 40 So. 3d at 658 (¶4). Under this rule, the trial court may “direct the entry of a final judgment as to one or more but fewer than all of the claims or parties[.]” M.R.C.P. 54(b). “According to the official comment to Rule 54(b), the basic purpose of the rule ‘is to avoid the possible injustice of a delay in entering judgment on a distinctly separate claim or as to fewer than all of the parties until the final adjudication of the entire case by making an immediate appeal available.’” Harris, 40 So. 3d at 658 (¶5) (emphasis added) (quoting M.R.C.P. 54(b) cmt.).
¶14. However, for a judgment or order to be eligible for Rule 54(b) finality, “the case [must] include either multiple claims, multiple parties, or both, and . . . either one or more but fewer than all the claims [must] have been decided, or . . . all the rights and liabilities of at least one party [must] have been adjudicated.” M.R.C.P. 54(b) cmt. The comment makes clear that “[d]espite its apparently broad scope, Rule 54(b) may be invoked only in a relatively select group of cases and applied to an even more limited category of decisions.” M.R.C.P. 54(b) cmt. And “[a] decision that leaves a portion of the claim pending as to all defendants does not fall within the ambit of Rule 54(b).” M.R.C.P. 54(b) cmt. …
¶15. The chancellor’s grant of partial summary judgment did not decide a claim between the two parties. Rather, it merely decided an issue within their claims—whether the contract was enforceable. This decision resulted in the denial of summary judgment to the Commission. And the denial of summary judgment is an interlocutory order that may only be appealed by permission. Hinds Cnty. v. Perkins, 64 So. 3d 982, 984 (¶7) (Miss. 2011). The chancellor’s decision also led to the partial grant of summary judgment in favor of Cleveland. But none of Cleveland’s claims were fully resolved. The chancellor was clear in his order that, despite the contract being enforceable as a matter of law, full summary judgment could not be granted because there were still “genuine issues of material fact” concerning whether the Commission could validly take actions to rescind the contract.
¶16. Because the chancellor’s decision left a portion of Cleveland’s claim pending, the chancellor’s order did not fall within that “limited category of decisions” in which Rule 54(b) may be applied. M.R.C.P. 54(b) cmt. Thus, the Rule 54(b) certification is invalid, and the decision that is the subject of this appeal is not a final, appealable judgment. Lacking jurisdiction to address the merits of the chancellor’s decision, we dismiss the appeal.
Not having the benefit of the entire record, we are at somewhat of a disadvantage, but, if I understood the opinion correctly, the judge did finally adjudicate a key issue of Cleveland’s case, which was whether the contract was enforceable. I can understand why the chancellor thought the parties should have a shot at appellate review of that issue, since it was a major pivot point upon which both cases turned. If it were upheld, major litigation, time and expense could be avoided. If reversed, the litigation might be ended. Either appellate ruling might quite possibly have avoided a retrial in a subsequent appeal.
All that being said, I understand the COA’s position. Since most of Cleveland’s case remained unresolved, the explicit language of R54(b) was not satisfied.
I said here only last week that I wondered why all the confusion over R54(b) and how to remove the uncertainty once and for all. I don’t think this is the case that does the job.
Add Another 54(b) Casualty
December 12, 2013 § 1 Comment
At some point (we may already be there), these will be so numerous that they will no longer be newsworthy, but there is yet another dismissed appeal for lack of a final judgment disposing of all issues, and no MRCP 54(b) certification.
The case is Estate of Norton: Jordan v. Norton, handed down by the MSSC December 5, 2013. I won’t bore you with the now-all-too-familiar details. This is a short opinion that you can read yourself in just a few minutes.
I am wondering whether these appellate misfires result from some kind of flaw in our rules, or whether the fault is in our stars, so to speak.
Is MRCP 54(b) ambiguous or unclear? It does not seem so to me, but that may be me looking through judicial-colored glasses with especially thick lenses. Is it unclear to lawyers who battle in the trenches?
Or is it that lawyers are acting out of an abundance of caution? If so, that seems like an expensive way to go, when a simple post-trial motion asking the judge for a 54(b) certification would cover one nicely.
I don’t know. Anyone have any ideas?
Yet Another Interment in the MRCP 54(b) Graveyard
November 13, 2013 § 5 Comments
The newest appeal to be interred in the MRCP 54(b) graveyard is In re Heirship of Gardner: Young, et al v. Pollion, et al., decided by the COA on November 5, 2013.
The petitioners sought to reopen the estate of Albert Gardner, who died in 1924, to determine his heirs. At stake were claims of the petitioners to oil, gas, and mineral royalties. The claimants were putative children of Albert Clayborne, a descendent of Albert Gardner, who died in 1998 with no adjudication of his heirship until the instant action.
The chancellor heard proof and rendered a 50-page opinion adjudicating certain persons to be heirs, and denying claims of others.
Here’s what Judge Fair’s opinion said on this now-utterly-familiar topic:
¶8. Under Rule 54(b), a trial judge “may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties” in an action. M.R.C.P. 54(b). But the judge may do so “only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment.” Id. And absent a Rule 54(b) certification, any judgment – regardless of how designated – is not final if it “adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties.” Id.; see also M.R.C.P. 54(b) cmt.
¶9. Rule 54(b) does not require that a judgment be entered when the court disposes of one or more claims or terminates the action as to one or more parties. “Rather, it gives the court discretion to enter a final judgment in these circumstances and it provides much needed certainty in determining when a final and appealable judgment has been entered. If the court chooses to enter such a final order, it must do so in a definite, unmistakable manner.” M.R.C.P. 54(b) cmt. Here, the chancellor did not indicate that the order was a final judgment or provide any Rule 54(b) certification. The fifty-page order contains many gaps regarding Albert Gardner’s descendants and their spouses, as recognized by the chancellor:
IT IS, FURTHER, ORDERED AND ADJUDGED that the aforementioned determination of heirs are subject to any spouse who survived said heirs who was not made a party to this litigation.
Whether Albert Clayborne’s mother and his grandfather survived their spouses is undetermined in the order. Further, the record shows that the order appealed from has been amended since the Appellants filed their appeal with this Court. We therefore conclude that these heirship proceedings are not final, even as to the Appellants, as they are still subject to further changes and amendments.
¶10. Without a certification under Rule 54(b), “any order in a multiple party or multiple claim action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory.” M.R.C.P. 54(b) cmt; see also Owens v. Nasco Int’l., Inc., 744 So. 2d 772, 774 (¶8) (Miss. 1999). Further, the Appellants neither sought nor received permission under Rule 5 of the Mississippi Rules of Appellate Procedure to proceed with an interlocutory appeal of this nonfinal judgment. An appellate court, on its own initiative, may dismiss an appeal for the absence of a Rule 54(b) certification. Miller v. R.B. Wall Oil, Co., Inc., 850 So. 2d 101, 103 (¶5) (Miss. Ct. App. 2002). Therefore, we dismiss for lack of jurisdiction.
R.I.P. yet another appeal.
Every time I see one of these cases, I think that I am seeing the very last in a long line of dead appeals. Yet, the supply appears to be unendless. We need a bigger graveyard.
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