Rules | The Better Chancery Practice Blog

How Not to Propound Discovery Requests via Email

March 18, 2014 § 5 Comments

If you’re like me, this entry among the MSSC hand-downs last Thursday had you scratching your head:

EN BANC
2013-IA-01784-SCT

Amber Olsen Johnson v. Walter Thomas Johnson; Madison Chancery Court; LC Case #: 2012-0921; Ruling Date: 10/14/2013; Ruling Judge: Janace Goree; Disposition: The Petition for Interlocutory Appeal filed by Petitioner is granted. This matter is remanded to the Madison County Chancery Court for entry of an order denying Respondent’s Motion to Compel in cause no. 2012-0921. The notice of appeal having been deemed filed, the filing fee is due and payable to the Clerk of this Court. The Respondent is taxed with all costs of this appeal. To Grant and Render: Waller, C.J., Dickinson and Randolph, P.JJ., Lamar, Kitchens, Chandler, Pierce and King, JJ. To Grant: Coleman, J.; Randolph, P.J., for the Court. Order entered.

An interlocutory appeal is granted and the chancellor is ordered to enter a discovery order. What exactly is going on here?

After I read Jane’s and Anderson’s blog posts on the ruling, it was much clearer.

It seems that the trial court had granted a motion to compel based on a R34 request for production of documents (bank records) that was directed via email to an employee of opposing counsel, and not to opposing counsel herself. Petition was filed for an interlocutory appeal from the order. The MSSC accepted the appeal, dispensed with briefing, and ruled that an email request made by counsel for one party to an employee of counsel for the other party does not meet the notice requirements of MRCP 5 and 34.

Jane includes the transcript of the trial-court proceedings, in which counsel for the party seeking discovery argues that an email request, no matter how informal, complies with the requirements of R34, which only requires a writing. The MSSC did not directly address this particular point.

The two points to take away from this are:

Sometimes we get accustomed to dealing with a particular paralegal or other staff in opposing counsel’s office. Notice to that staff member will not suffice as notice to the attorney under R5 or R34. Here, the missing component was either an automatic electronic acknowledgment of receipt from the attorney, or the attorney’s separate acknowledgment, either of which is required in R5. The acknowledgment of a staff member does not satisfy the express requirement of R5 that it be made by the attorney.
If you find yourself scratching your head over some hand-down of the appellate courts, it might pay you to take an extra three minutes to look up the order behind it. If you don’t, you might miss something that could impact a future case of yours.

Thanks to both Jane and Anderson for posting on this, and to Beverly Kraft for calling it to my attention.

Grass Roots Rules of Court

March 17, 2014 § 9 Comments

Before you set off on a trek to a far-flung chancery court district, it would behoove you to discover how they do business there. As an example of what a lack of behooving can do for you, consider my own rueful experience:

Years ago I called a court administrator in a distant county and told her I wanted to set a motion for a hearing. She gave me a date, and I, in turn, gave her the CA number, the parties, my name, and that of opposing counsel. I filed my motion, sent out the notice of hearing and, on the day appointed, travelled 90 miles or so to court.

I noticed when court opened that opposing counsel was not there. The judge called the docket and my case was not there, either. I approached the bench after docket call and inquired about my motion hearing. The judge flipped through the file and pointed out that I had not obtained a fiat setting the case for that day. Ergo, no setting. A fiat to set the hearing was required in that district by local rule.

A fiat, as anyone who operated in the pre-MRCP legal world can tell you, is simply an order directing that process or notice of hearing be issued for a given day. It’s the court’s way of ensuring that the case is set for an appropriate day. And it’s that district’s way of complying with R81(d)(5), which says that the date for a hearing in a matter like that “… shall be set by special order, general order or rule of the court.”

Had I bothered to look for a local rule, I would have gotten that fiat before setting the hearing, and I would not have wasted a trip.

In this district, where we have no local rules, a lawyer simply calls the court administrator, finds a date assigned by the court for hearing of matters such as the one the lawyer desires to set, and notifies the court administrator of the identity of the matter being set, and the time required. The lawyer then notices it for hearing, either via R81 or R5, whichever applies.

In the first instance above, the hearing is set per local rule, and in the second, by R81.

So, how do you discover how to do it?

You can find a complete set of local court rules approved by the MSSC at MC Law’s Mississippi Legal Resources web site. While I’m on the subject, that site is a super resource where you can find instant access to all kinds of Mississippi legal resources that you use daily. And it works as a mobile app, too. You can also find the local chancery court rules on the MSSC’s Mississippi Judiciary site at this link.

Note that all local rules must be approved by the MSSC before taking effect. They must be consistent with the MRCP, and, in the event of a conflict, the MRCP prevails.

Of the now-existing twenty chancery districts, thirteen have their own local rules, and seven do not. The seven districts without local rules are:

Third. (DeSoto, Tate, Panola, Yalobusha, Grenada and Montgomery). Chancellors Cobb, Lundy and Lynchard.
Ninth. (Humphreys, Issaquena, Sharkey, Sunflower, Warren and Washington). Chancellors Barnes, Weathersby and Wilson.
Twelfth. (Lauderdale and Clarke). Chancellors Mason and Primeaux.
Thirteenth. Local rules repealed in 2006. (Covington, Jefferson Davis, Lawrence, Simpson and Smith). Chancellors Shoemake and Walker.
Fifteenth. (Copiah and Lincoln). Chancellor Patten.
Eighteenth. Local rules repealed in 2006; BUT SEE ERRATUM BELOW. (Benton, Calhoun, Lafayette, Marshall and Tippah). Chancellors Alderson and Whitwell.
Twentieth. (Rankin). Chancellors Fairly and Grant.

ERRATUM: The 18th District Rules were renumbered and codified by order entered May 18, 2006, but not repealed. I apologize for the mistaken information.

In the districts without their own local rules, you can call the court administrator, who should be able to help you get done what you need to get done. If you encounter a judge who has no court administrator whom you can identify (I know of only one), you might try calling the clerk first, and, if that is unproductive, then call one of the court administrators of another judge in the district.

NOTE: Since grass is green, the title of this post qualifies as appropriate for St. Patrick’s Day.

And thanks to attorney Sean Akins of Ripley for pointing out my error about the 18th District.

Subjecting One’s Self to the Jurisdiction of the Court

March 12, 2014 § 2 Comments

The MSSC case of Pierce v. Pierce, handed down February 20, 2014, includes a couple of pretty important points of law that you should be aware of in your chancery practice.

Martin and Star Pierce were married in 2000, and lived in Harrison County, Mississippi. They separated, and Martin filed for divorce in the State of Washington in 2007. Since the Washington court had no personal jurisdiction over Star, it granted a divorce only.

Martin later filed an action in Harrison County seeking partition of the parties’ jointly-owned home and settlement of the parties’ financial obligations incurred during the marriage. Star counterclaimed for equitable distribution, alimony, and attorney’s fees.

The chancellor equitably divided the marital estate, including Martin’s military retirement, and awarded Star alimony and attorrney’s fees.

Martin appealed, complaining (1) that the Washington judgment was res judicata as to Star’s claims for equitable distribution and alimony, and (2) that, since he had only requested partition, he had not consensually submitted himself to Mississippi jurisdiction for division of his military retirement.

As for the issue of res judicata, the MSSC said, at ¶ 19, that although the Washington court properly had subject matter jurisdiction over Martin’s divorce action, it lacked personal jurisdiction over Star. A court with personal jurisdiction over only one of the parties in a divorce may not divide the parties’ assets. Therefore, the issues of property division and alimony were not res judicata by virtue of the Washington judgment, and the Mississippi Chancery Court had jurisdiction over those issues.

Note: It happens from time to time that a party, unhappy with a Mississippi temporary order or separate maintenance order, or with the slow progress of his case, or lacking viable grounds, moves to another state or jurisdiction and obtains a divorce. That does not deprive Mississippi of jurisdiction to adjudicate all of the other issues within its territorial jurisdiction that are pendant to a divorce, such as equitable distribution, alimony, child custody, child support, and so on, if the court obtains personal jurisdiction. In this case, Martin submitted himself to the personal jurisdiction of the court, and thus opened the door to the court’s adjudication of all those pendant issues.

A previous post on exactly what constitutes res judicata is at this link.

With respect to Martin’s assertion that his partition suit did not open him to other relief via counterclaim, the MSSC disagreed at ¶ 23: “It is well-established ‘that by filing suit a plaintiff automatically waives any objections he might otherwise have on grounds of personal jurisdiction to counterclaims presented against him in the suit'” [Citations omitted]

Note: Not a whole lot needs to be said about this particular point. When you invoke the jurisdiction of the court, you open yourself to any and all claims and actions that the other party has against you, both arising out of the same subject matter as the original suit (MRCP 13(a)), as well as any not arising out of the subject matter of the original suit (MRCP 13(b)).

You should read the court’s opinion. Its rationale and the authority are both something you can use in your library of helpful authority.

Past Recollection Recorded

March 4, 2014 § Leave a comment

We talked in a post here last week about how to cope with the forgetful witness. That post focused on refreshing the present recollection of a witness with a writing or other object per MRE 612. Once the witness’s ability to recall has been restored, the witness may then go forward with his testimony.

But how does one handle the case where the witness simply has no present recollection whatsoever, even after your best effort under MRE 612?

Well, if the witness has no recollection whatsoever, the witness should be excused, because he does not meet at least one of the most basic criteria of a competent witness, which are the ability to recall and relate truthfully. MRE 601, 602, 603; See, e.g., Goforth v. State, 70 Miss.3d 174 (Miss. 2011).

If, however, the witness once did have personal knowledge, but now has insufficient recollection, and there is a record made or adopted by the witness while the matter was fresh on his mind, MRE 803(5) gives you a way to get those matters before the court.

Here are the steps:

Establish that the witness once had personal knowledge of the matter, but now has insufficient recollection to testify independently, fully and accurately.
Establish that there is a written or recorded record of the matter that was made by or adopted by the witness while it was within his memory and was within his knowledge.
Have the witness confirm that it correctly reflects the witness’s knowledge at the time.
Ask that the statement be admitted. If the court deems it admissible, then MRE 803(5) provides that it “may be read into evidence,” but it is not itself received as an exhibit unless offered by an adverse party. This is a somewhat curious procedure, and I have never seen it done this way, but that is what the rule dictates.

An example of MRE 803(5) in action is where a physician is called as a witness to testify about a person’s physical and medical condition when the doctor examined him. She has no independent recollection on the day of trial of this particular patient’s condition as it existed at the time in question, but she has her patient record, either dictated by her at the time or recorded by a nurse or aid and adopted by the doctor as an accurate reflection of the facts while they were fresh in her memory. See, e.g., Harness v. State, 58 So.3d 612 (Miss. 2009).

MRE 803(5) and 612 are two excellent tools at your disposal to overcome the dilemma of the witness stranded alone on the witness stand devoid of memory.

When a document is admitted into evidence, or the court overrules an objection allowing a witness to testify as to a particular point, all that means is that the information gets to the judge either in the form of something that the judge can look at and study, or verbally. Either way, when it is in evidence, it is fair game for the court to weigh and take it into account in its ruling. It’s your job to get those key items into the judge’s hands to look at, or into the judge’s ear.

When you quit thinking about the MRE as a collection of obstacles to the admission of evidence, and begin seeing them in terms of how they offer you many portals to the court’s consideration, you will find your trials a whole lot easier and more successful.

Refreshing Recollection

February 27, 2014 § 3 Comments

The forgetful witness can be the bane of even the most accomplished barrister. Faced with what could prove to be a fatal memory lapse, lawyers twist themselves into proverbial pretzels cajoling, wheedling, leading, suggesting, and — when those ploys don’t work — yelling, at witnesses whose memories somehow have escaped them altogether.

To compound matters, counsel opposite, perhaps stimulated by the scent of blood in the water, pounces shark-like with a confounding flurry of objections, insisting that since the witness says she does not remember, no further questioning on the point should be allowed.

It doesn’t have to be so complicated, however.

Mississippi law has long recognized the right of a witness to have her memory refreshed, and our law has allowed anything to be used to refresh independent recollection. Refreshing recollection is not limited to written documents. As MRE 612 states “If a witness uses a writing, recording or object to refresh his memory for the purposes of testifying …” Or, as a law professor eloquently put it, you can use a pencil or a flower pot, if that will do the job.

Bear in mind that the process of refreshing recollection is intended to restore the witness’s independent recollection of a matter. It is not a process of educating a witness about matters beyond his ken, nor is it a backdoor path to admission of an otherwise inadmissible item. Once the witness’s recollection has been restored, the witness continues her testimony based on her now-restored recollection, independent of the refreshing item.

Here are the proper steps:

Establish that the witness is unable to recall a particular thing.
Counsel may then use leading questions to refresh the witness’s memory (e.g., “Ms. Jones, don’t you recall telling me last week about the amount of money you deposited into that account?”) See, e.g., James v. State, 86 So.3d 286 (Miss. App. 2012). Also, whether to allow leading questions is entirely within the trial court’s discretion. Dorrough v. State, 812 So.2d 1077 (Miss. App. 2001).
If the witness still can not recall, counsel may then show the witness the writing, recording or object, which the witness reads or looks at silently. An example: “Ms. Jones, let me hand you this deposit slip, and ask you to read it to yourself.”
Now the lawyer asks again if the witness now remembers after looking at the writing.
If the witness responds that she now recalls independently of the writing, her recollection has been refreshed and she may testify to that independent recollection, ideally not using the writing, recording or object further. I say ideally because there are plenty of reported cases in which a police officer, or deputy, or dispatcher has been allowed to continue to use case reports and notes after having recollection refreshed. See. e.g., King v. State, 615 So.2d 1202 (Miss. 1993).
If the witness still can not recall after looking at the writing, then the lawyer may have to resort to MRE 803(5), which we will look at in a later post.

MRE 612 requires that the opposing party be provided with a copy of the item if it is used for refreshing memory while testifying, and to cross examine the witness about it, and to have relevant portions admitted into evidence. If, on the other hand, the witness uses an item to refresh before testifying, then it is within the court’s discretion whether counsel opposite should have a copy if the court determines that “… it is necessary in the interests of justice …” Any part of the item or writing that the court orders not to be admitted into evidence is required to be preserved in the record for appeal. The court may make any order it deems necessary to effect the intention of the rule.

The best evidence rule does not apply to writings used to refresh recollection. Hunt v. State, 687 So.2d 1154 (Miss. 1997).

The comments to the rule say that it was intended to end pre-rules confusion between simply refreshing the witness’s independent recollection (MRE 612) and laying the foundation for admission of a recorded recollection as an exception to the hearsay rule (MRE 803(5)). In my experience, that confusion sadly persists despite this rule.

In a nutshell, here is the distinction: (a) Rule 612 instructs us on how to refresh a witness’s present recollection. That is, the witness at the time of trial can testify as to his recollection of what happened, but his recollection needs to be refreshed before he can testify. After looking at the item, the witness’s recollection is restored, enabling him to testify from memory. (b) Rule 803(5) tells us what to do where a witness once had personal knowledge, but now has insufficient recollection to be able to testify, and the witness made an accurate record of his observations when the event was fresh on his mind.

An important caveat: Before you stick something under the witness’s nose to refresh his recollection, be aware of what it is that you are handing to your opponent, because that is what you are doing when you offer it to your client. In a case I tried years ago, a key witness was hazy about details of an important event that would affect the outcome of the case. In an effort to jog her memory, her lawyer asked her whether there was anything that would help her recall the details. She said she could recall if she could look at a sheaf of notes she had left on counsel’s table. Without even glancing at them, the attorney handed them to her, whereupon I demanded to look over the papers. There, in the witness’s own handwriting, were dozens of statements that contradicted her own testimony to that point, flatly contradicted her deposition testimony, and aided us immensely in her impeachment. And it was handed to us by her own attorney.

Which Post-Trial Motion You Choose Can Make all the Difference

February 25, 2014 § 3 Comments

James Loftin was notified that his contract for employment as school superintendent would not be renewed, and he filed a request with the chancery court for a hearing, as provided in MCA 37-9-101 through -113.

On April 16, 2012, Loftin filed a public records request with the school district.

The non-renewal hearing went forward on April 27, 2012, despite a pre-hearing motion that Loftin had filed asking that it be delayed so that his public records request could be addressed. On July 12, 2012, the judge ruled that Loftin had waived the public records request because he had allowed the hearing to go forward. The ruling on the non-renewal was not in his favor.

Loftin filed a motion for reconsideration [you can read another post at this link on whether there is such a creature in Mississippi procedure] on July 24, twelve days after the court’s ruling.

On October 24, 2012, more than 100 days after the final ruling on the merits, the court overruled the motion for reconsideration, and Loftin filed his notice of appeal on November 2, 2012.

In the COA case of Loftin v. Jefferson Davis County School District, handed down February 18, 2014, the court affirmed the chancellor’s denial of the motion to reconsider. Judge Fair, for the majority, explained:

¶4. “A timely-filed notice of appeal is a jurisdictional prerequisite to invoking [appellate] review, and we review jurisdictional matters de novo.” Calvert v. Griggs, 992 So. 2d 627, 631 (¶9) (Miss. 2008). “[T]he time to file a notice of appeal is a jurisdictional issue that cannot be waived by the parties.” Dawson v. Burt Steel Inc., 986 So. 2d 1051, 1052 (¶5) (Miss. Ct. App. 2008).

¶5. At issue is what effect Loftin’s motion for reconsideration had on the timeliness of his notice of appeal. Motions for reconsideration are filed every day in Mississippi, but the Mississippi Rules of Civil Procedure do not specifically provide for them. McBride v. McBride, 110 So. 3d 356, 359 (¶15) (Miss. Ct. App. 2013). This Court recently summarized how they should be treated:

The Mississippi Rules of Civil Procedure provide two avenues to move the trial court to reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to alter or amend under Rule 59 or (2) file for a relief from a final judgment under Rule 60(b). The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b) motion.

A motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion. Consequently, a notice of appeal following the denial of a Rule 59 motion to reconsider encompasses both the denial of reconsideration and the underlying judgment.

But a motion to reconsider filed more than ten days after the entry of the judgment falls under Rule 60(b). And a Rule 60(b) motion does not toll the thirty-day time period to file a notice of appeal. So a notice of appeal following the denial of a Rule 60(b) motion to reconsider limits this court’s review to whether reconsideration was properly denied under Rule 60(b). This court has no jurisdiction to consider the merits of the underlying judgment.

Woods v. Victory Mktg. LLC, 111 So. 3d 1234, 1236-37 (¶¶6-8) (Miss. Ct. App. 2013) (citations omitted). The last day for Loftin to file his motion for reconsideration under Rule 59 was Monday, July 23, 2012. See M.R.C.P. 6(a). Loftin’s motion, filed on July 24, must be taken under Rule 60(b).

¶6. Rule 60(b) provides six bases for relieving a party from a final judgment:

(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.

Loftin’s motion for reconsideration makes none of those arguments. Instead, it simply contends that the petition should not have been dismissed under the facts and the controlling substantive law. Loftin obviously intended the motion to be considered under Rule 59(e), but because it was untimely, that ship has sailed. “An appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” Bruce v. Bruce, 587 So. 2d 898, 903-04 (Miss. 1991). Instead, “Rule 60(b) is for extraordinary circumstances, for matters collateral to the merits, and affords a much narrower range of relief than Rule 59(e).” Id. at 903. “Rule 60(b) motions should not be used to relitigate cases.” S. Healthcare Servs. Inc. v. Lloyd’s of London, 110 So. 3d 735, 742 (¶16) (Miss. 2013). Nor is a Rule 60(b) motion a substitute for a timely appeal. Id. at (¶14).

¶7. Loftin is not entitled to relief from judgment under Rule 60(b). We therefore affirm the trial court’s judgment denying Loftin’s motion for reconsideration.

Comments:

A R59 motion for a new trial or rehearing will stop the appeal deadline from running, but it must be filed within ten days of entry of the judgment.
A R60 motion does not stop the running of the appeal deadline.
Even if you style your motion as a R59 motion and ask for R59 relief, if you file it more than ten days after entry of the judgment, it will be treated as a R60 motion.
If you ask for relief under R60, you should spell out exactly what provisions of R60 you are invoking.
Remember that, as between R59 and R60(b), only a R59 motion will allow the appellate court to review the merits of the underlying judgment. An appeal from denial of a R60(b) motion limits the appellate court to a review of the denial of the R60(b) motion only.

Fraud on the Court and MRCP 60(b)

January 28, 2014 § 1 Comment

What does it take to trigger relief from fraud on the court?

That’s the question I posed in a previous post dealing with the COA’s October 2, 2012, decision in the case of Rosemary Finch v. Stewart Finch.

The answer based on the COA decision was that one need merely suggest that a fraud on the court was committed, and the chancellor can take it from there. So that settles that, right? Well, not exactly. The MSSC granted cert and took another look.

In Finch v. Finch, handed down January 16, 2014, the high court affirmed the COA’s decision on the chancellor’s handling of the fraud-on-the-court issue, but remanded for further findings of fact by the trial court on other issues.

The MSSC decison, penned by Justice Pierce, is worth your time to read, because it sheds further light on the dimensions of fraud on the court, how it affects judgments, how the trial court should address it, and how you should deal with it.

What is most strking to me about this opinion, however, is how the court divided on the decision:

LAMAR, KITCHENS AND CHANDLER, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. DICKINSON, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., KING AND COLEMAN, JJ.; CHANDLER, J., JOINS IN PART.

Four justices joined entirely in the opinion: Pierce, Lamar, Kitchens, and Chandler. Randolph added a fifth concurrence “in part and in result.” The dissent garnered five votes also: Dickinson, Waller, King, and Coleman. Chandler added a fifth vote, “in part.” Neither Justice Randolph nor Justice Chandler wrote an opinion explaining their concurrence or dissent in part, so we do not know enough to understand their rationales. Apparently, under the MSSC internal procedures, a tie vote goes in favor of the justice who wrote the original opinion. In his dissent, Justice Dickinson referred to this as a “plurality opinion.”

I found Justice Dickinson’s dissent to be forceful and persuasive. He questioned whether due process had been violated, and he found the proof of actual fraud lacking. He was not successful, though, in selling his opinion to a majority. So the law of Mississippi in cases involving fraud on the court remains as I described it in that previous post:

… all that was necessary in this case was to give the chancellor a suggestion that there may have been a fraud on the court, and she picked it up and ran with it. The chancellor has broad, equitable power when it comes to relief under MRCP 60(b), which the court can exercise on its own motion. In this particular case the problem was fraud, but 60(b) vests the court with the same equitable powers to address mistake, “or any other reason justifying relief from judgment …”

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.

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.

Relief Pending an Appeal

November 6, 2013 § 2 Comments

We’ve talked here before about the concept that the trial court loses jurisdiction during an appeal to amend, modify or even reconsider its judgment.

That rule, however, is not absolute.

In the case of McNeese v. Grant, decided by the MSSC on October 10, 2013, the appellate court was called upon to decide whether the chancellor had erred when he ruled that a R60(b) motion was untimely filed, and that the trial court had no jurisdiction, because the movant, Kenton McNeese, had perfected an appeal from the judgment that was the subject of the motion. Here’s what the MSSC said in its opinion written by Chief Justice Waller:

¶7. Ordinarily, once a notice of appeal is filed, jurisdiction transfers from the trial court to the appellate court, thereby removing the trial court’s authority to amend, modify, or reconsider its judgment. Corporate Mgmt., Inc. v. Greene County, 23 So. 3d 454, 460 (Miss. 2009) (citations omitted). However, Kenton requested relief under Rule 60(b) of the Mississippi Rules of Civil Procedure.

¶8. This Court has explained that “the adoption of Miss. R. Civ. P. 60 conferred ‘limited concurrent jurisdiction on the trial court to grant relief from a judgment even though an appeal has been perfected.’” Griffin v. Armana, 679 So. 2d 1049, 1050 (Miss. 1996) (citing In re Estate of Moreland v. Riley, 537 So. 2d 1345, 1347 (Miss. 1989) (citation omitted)). Rule 60(b) allows a party to seek relief from a judgment or order in instances of “mistake, inadvertence, newly discovered evidence, fraud, etc.” M.R.C.P. 60(b). “So long as [Kenton] complied with the requirements of Rule 60(b), perfection of his appeal did not divest the trial judge of authority to vacate [his] judgment.” Griffin, 679 So. 2d at 1050. A party may file his Rule 60(b) motion directly with the trial court not more than six months after the judgment[;] however, once “the record has been transmitted to the appellate court and the action remains pending therein,” leave to make the motion must be obtained from the appellate court. M.R.C.P. 60(b).

The judge had ruled that Kenton’s motion was untimely filed, based on the language of MRAP 4(d), which reads, in part:

If any party files a timely motion of a type specified immediately below the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding. This provision applies to a timely motion under the Mississippi Rules of Civil Procedure. . . (5) for relief under Rule 60 if the motion is filed no later than 10 days after the entry of judgment. A notice of appeal filed after announcement or entry of the judgment but before disposition of any of the above motions is ineffective to appeal from the judgment or order, or part hereof, specified in the notice of appeal, until the entry of the order disposing of the last such motion outstanding. Notwithstanding the provisions of Appellate Rule 3(c), a valid notice of appeal is effective to appeal from an order disposing of any of the above motions. [Emphasis added]

The italicized language would seem to impose a 10-day limitation on the filling of the motion, as the chancellor ruled. The Supreme Court, however, disagreed, saying at ¶9, “This Court finds that Rule 4(d) applies to the suspension of the deadline by which to file a Notice of Appeal and does not create a deadline by which to file a Rule 60(b) motion.”

I recommend that you read the opinion, because there are some other aspects of interest in this pro se appeal. If you handle any appeals, you need to be familiar with this case.

This is, by the way, Kenton’s second pro se appeal. You can read about his first effort here.

Where Am I?