SELF-INFLICTED DISMISSAL
April 24, 2013 § Leave a comment
The COA case of Maurer v. Maurer, handed down April 9, 2013, calls our attention yet again to the phenomenon of the self-represented parties and the imaginative ways that they can inflict damage on their interests using the legal system for that purpose.
Raven and Michael were divorced in 2006. Commencing in 2007, they engaged in a long-running battle over custody and visitation in which allegations of sexual abuse were made, a GAL was appointed, a termination of parental rights action was filed, custody orders were entered bouncing the children from one parent to the other, and, finally, a hearing was held in 2011, on the termination of parental rights, pleadings for modification of both visitation and child support, and multiple contempt allegations.
The chancellor ruled against Raven’s termination request and found Michael in contempt for failure to pay child support. But the judge did not adjudicate the amount of the arrearage or the amount of reduction in child support Michael should have; instead, she ordered the parties to submit proposed findings of fact and conclusions of law on those issues.
Raven filed a pro se appeal. Michael is listed as pro se in the appeal, also.
Just for fun, let’s have a little quiz on how the COA ruled. Multiple choice, pick the likely outcome:
(A) The appeal is dismissed because this was an MRCP 81 action at trial, and MRCP 81 is hopelessly outdated and anachronistic and too complicated for pro se litigants to comprehend;
(2) The appeal is dismissed based on MRCP 44.1, determination of foreign law; or
(x) The appeal is dismissed because the chancellor’s “final judgment” adjudicated fewer than all of the contested issues, and there was no certification per MRCP 54(b).
If you guessed (x), you’re right. As the court’s opinion, by Judge Maxwell, stated, although the chancellor adjudicated “the vast majority of disputed issues,” there were matters left unaddressed, so there was no final, appealable judgment, and the COA has no jurisdiction unless there had been a certification under MRCP 54(b), or Raven had gotten leave to file an interlocutory appeal, which (surprise, surprise) she did not do.
The only remarkable thing to me about this case is how people, heedless of the legal harm and expense they can inflict on themselves, persist in pursuing complex legal matters pro se. We’ve seen many cases over the past several years where the R54(b) snare tripped even skilled lawyers; how is a lay person to know how to negotiate these shoal waters? As I have observed many times, I have never seen a pro se litigant walk out of the court room in better shape than when he or she walked in. Raven went to a lot of expense in this appeal for nothing.
MRCP 54(b): GRAVEYARD OF APPEALS
June 11, 2012 § 3 Comments
2011-2012 is shaping up to be the MRCP 54(b) graveyard of appeals. Two more recent COA decisions have deep-sixed appeals where the appellants had taken the case up from a less-than-final judgment, adding to the growing list of dismissed appeals.
In Rebuild America v. Countrywide Home Loans and Bank of NY, decided May 15, 2012, Chancellor Carter Bise granted Countrywide’s and BNY’s motion for summary judgment, which set aside two tax sales to Rebuild America. Countrywide and BNY filed a pleading seeking confirmation of title and dismissal of all other defendants, but before it could be heard Rebuild America filed its appeal. The motion for a judgment was filed September 10, 2010, and has been held in abeyance these past 20 months pending the outcome of the appeal.
To make a long story short, Judge Griffis’s majority opinion once again points out what a lengthening line of cases has painfully established: if the judgment disposes of fewer than all of the issues or fewer than all of the parties, then it is not a final, appealable judgment unless the judge has properly certified it under MRCP 54(b). The appeal must be dismissed for lack of jurisdiction, and that is exactly what happened here … appeal dismissed.
So here, after a twenty-month delay and who-knows-how-much in fees, expenses and costs for the appeal, these folks are right back where they were on September 10, 2010.
In McMullin v. McMullin, decided May 29, 2012, Chancellor Dan Fairly had awarded custody clearly contingent on obtaining further evidence from a physician, and the record was kept open for that purpose. The appellant appealed anyway, with predictable results. The COA on its own motion restated the obvious point that you can not appeal from a less-than-final judgment unless and until the trial judge has certified the case under MRCP 54(b), and that certificate must make findings that comply with the rule. In neither McMullin nor Rebuild America did the appealing party seek or obtain MRCP 54(b) certification from the judge before filing the appeal.
Even with a 54(b) certificate, your appeal may fail if the appellate court finds that judge’s reasons inadequate or missing, or if the appellate court finds that the chancellor abused her discretion in granting it.
More posts on MRCP 54(b) are here, here, here, here, here and here. Ironically, one of those posts is entitled, “Finally, the Final Word on Finality.” At the rate we’re going, though, I suspect that there will be a few more “final words” on this subject before the year is out.
The Better Chancery Practice Blog 