What can be Appealed?

February 4, 2020 § 1 Comment

Can you appeal from a temporary order? What about a consent decree or judgment?

MCA § 11-51-3 says in its entirety:

“An appeal may be taken to the Supreme Court from any final judgment of a circuit or chancery court in a civil case, not being a judgment by default, by any of the parties or legal representatives of such parties; and in no case shall such appeal be held to vacate the judgment or decree.”

So the judgment must be final, disposing of all issues as to all parties. MRCP 54. If the order or judgment is final as to fewer than all the issues or parties, then it is not a final, appealable judgment unless the judge certifies that there is no just reason for delay and directs entry of a judgment.

Thus, there is no appeal from a temporary order. Michael v. Michael, 650 So. 2d 469, 471 (Miss. 1995).

A decree entered by consent of the parties is not appealable. Legg v. Legg, 251 Miss. 12, 168 So. 2d 58, 60 (1964).

An order denying a motion to recuse is appealable even though not a final judgment as to all claims or parties. That’s because it is authorized by MRAP 48B.

An order denying or granting a probated claim is appealable despite the fact that the estate remains open. Estate of Philyaw: Braxton v. Johnson, 514 So.2d 1232, 1236-7 (Miss. 1987).

You can try to appeal from a less-than-final judgment or an interlocutory ruling by petitioning the MSSC for permission to file an interlocutory appeal per MRAP 5. You have to convince the court that “a substantial basis exists for a difference of opinion on a question of law” that appellate resolution may advance termination of the suit and save the parties money, or protect a party from irreparable injury, or “resolve an issue of general importance in the administration of justice.”


A Recusal Circus

March 3, 2015 § 22 Comments

I posted here before about the confusion spawned in Boatwright v. Boatwright when the chancellor recused himself after entering a final judgment in 2009, but before ruling on the R59 motion.

The case landed in the lap of the other sitting chancellor in the district, who refused to rule on the R59 motion because he had no knowledge of the case. He opined that the better course of action would be for the lawyers to take an appeal. And that is what they did.

The COA ruled in 2011 that the second chancellor should have ordered a transcript and gained enough knowledge of the case to enable him to decide the R59 motion. The case was reversed and remanded with instructions.

Now, apparently, six years after the original judgment that birthed this controversy, the parties are back on appeal before the COA.

This time, though, five (5) of the COA judges have recused themselves. Since six are needed for a quorum, what exactly is to be done to allow the Boatwrights their (latest) day in court? Jane Tucker tells us on her blog.

I don’t recall a case in which six judges recused themselves. The order does not reveal reasons for the recusals.

It would definitely have entertainment value, however, if the remnant of the COA deciding the case were to remand the case again, only to have the chancellor recuse himself. There is a new chancellor now in that district, which opens the possibility that he could recuse himself, too. Or, he could hear the case, have it remanded yet again, and then recuse himself on remand. That’s probably too much to hope for. The law is seldom that entertaining.

Appealing from a Consent Judgment

February 10, 2015 § Leave a comment

William Peebles and his wife, Sandra, were divorced in March, 2004. In the divorce, William agreed to pay Sandra’s house payments, but he fell behind in his payments to the tune of $64,000. Sandra sued him for contempt and to collect the arrearage. William countered with various defenses, including that he was entitled to a credit against the house payments in the amount of the Social Security benefits that Sandra had begun drawing based on his contributions.

William sought summary judgment on the issue, which the chancellor denied based on the fact that credit for Social Security was not mentioned in the PSA incorporated into the divorce judgment. Following that ruling, the parties entered into a “consent judgment” in which William conceded that he owed Sandra $54,000, plus some other expenses. The judgment specified that William would have the right ” … to seek an appeal from the … pretrial ruling denying his request for credit …” for the Social Security benefits. William did appeal.

His appeal, however, was not limited to the Social Security issue. He also attempted to raise other issues, including whether his house-payment obligation had been discharged in bankruptcy, an argument that the chancellor had overruled. In Peebles v. Peebles, handed down December 9, 2014, the COA rejected William’s attempt to inject other issues into the appeal. Judge Maxwell, for the court:

¶11. William’s first appellate claim ignores the consent judgment he entered with Sandra and backtracks to his initial suggestion that his house-note obligation was discharged in bankruptcy. We find William’s claim is not only barred but also lacks merit.

A. Consent Judgments Are Binding

¶12. First, William entered into a consent judgment, conceding he indeed owed Sandra the money on the house note. And consent judgments are “given the same force and effect as[] judgments rendered after litigation.” Smith v. Malouf, 826 So. 2d 1256, 1259 (¶10) (Miss. 2002). We do note, however, that while consent judgments are “binding and conclusive, operating as res judicata and an estoppel to the same extent as judgments after contest[,]” there are limited grounds for an appeal from a consent judgment. But none of those exceptions are present here.

B. Appealability of a Consent Judgment

¶13. “Until 1991 there was a specific statutory bar to appealing from a consent judgment.” Sanghi v. Sanghi, 759 So. 2d 1250, 1255 (¶22) (Miss. Ct. App. 2000) (citing Miss. Code Ann. § 11-51-3 (1972) (an appeal may be taken from any judgment that is not “by confession”), amended 1991 Miss. Laws ch. 573, § 79). But “now an appeal can be taken from any judgment other than one by default.” Id. (citing Miss. Code Ann. § 11-51-3 (Supp. 1999)). To survive the bar against appealing consent judgments, the issues on appeal must be akin to those under Rule 60(b)—claims such as fraud, misrepresentation, accident, or mistake. Rushing v. Rushing, 724 So. 2d 911, 915-16 (¶¶19-20) (Miss. 1998). As our supreme court has put it, for a consent judgment to be appealable, “the allegation and indicated evidence should be such as would convince a court that what is sought is not simply an opportunity to litigate that which is already settled.” Id. at 916 (¶22) (quoting Askew v. Askew, 699 So. 2d 515, 520 (Miss. 1997)).

¶14. From our review here, it is obvious that relitigating the discharge issue is William’s chief concern. William does not contest the validity of the consent judgment; he simply wants to reargue something he ultimately agreed about—the fact that he owed Sandra $54,686.60 on the house note. Had he reserved the right to appeal this issue as he specifically did with his claim he should be credited for Social Security benefits, the bankruptcy issue would be properly before us. But he opted not to preserve it, so we find the bankruptcy-discharge issue is barred.

¶15. Still, while the discharge issue is barred, a look at the merits shows William listed his house-note obligation on his bankruptcy schedules as a “domestic support obligation.” And it is well established that a chapter 7 discharge “does not discharge an individual debtor from any debt . . . for a domestic support obligation[.]” 11 U.S.C. § 523(a)(5) (emphasis added). So even though the issue is barred, we find the chancellor was right that the note obligation was not discharged by William’s chapter 7 bankruptcy.

[The footnotes are omitted].

It would seem, then, that only the after-the-fact issues such as R60 matters would be appropriate for an appeal, and the subject matter of the agreement —  “that which is already settled”  — is off limits to an appeal.

Be careful what you bind your client to in an agreed order. That’s not to say you should eschew settlement attempts or be afraid to enter into a binding settlement. I am only saying that you need to consider carefully exactly what it is your client is getting in return for what he or she is giving up, and it is critical that you get your client to understand it, preferably by confirming it in writing with your client’s acknowledgment.

A Rule More Observed in the Breach

November 17, 2014 § 6 Comments

Just a friendly reminder that MRAP 25(b) states in part:

“In all cases a copy of any brief on the merits shall be served on the judge who presided at the trial …”

An Effect of Affirmance

July 9, 2014 § Leave a comment

Richard Dean filed an adverse-possession lawsuit, and the chancellor found that he failed to prove his case. Dean appealed, and the COA affirmed. He then filed a petition for cert to the MSSC, which the court denied.

Not to be deterred, Dean then filed a R60(b) motion with the chancery court that had originally denied his relief. The chancellor overruled his motion, and Dean once again appealed.

The COA again affirmed, in Dean v. Slade, et al., decided April 22, 2014. Jurisdictional nerd that I am, I found the court’s discussion of the effect of affirmance on trial court jurisdiction interesting enough to share. Here is what Judge James wrote for the court:

¶7. We first question whether the chancery court had the necessary jurisdiction to entertain Dean’s motion for reconsideration. Upon Dean’s initial appeal of the chancery court’s judgment, the chancery court lost jurisdiction. See City of Cleveland v. Mid-S. Assocs. LLC, 94 So. 3d 1049, 1050 (¶4) (Miss. 2012) (Jurisdiction is transferred to the appellate court once a notice of appeal is filed.). And because we affirmed the judgment, as opposed to remanding the judgment, and the Mississippi Supreme Court denied certiorari, jurisdiction did not return to the chancery court. See id. As the Mississippi Supreme Court noted in Collins v. Acree, 614 So. 2d 391, 392 (Miss. 1993):

From time immemorial, we have adhered to the basic and elementary rule that our appellate affirmance ratifies, confirms, and declares that the trial court judgment was correct as if there had been no appeal. Upon issuance of our mandate, the trial court simply proceeds to enforce the final judgment. The execution of the mandate of this Court is purely ministerial.

Although in Collins the supreme court noted that there may be occasions when application of Rule 60(b) may be appropriate following an affirmance and issuance of a mandate, we do not find such an occasion present here. There is nothing in Dean’s motion that suggests that the judgment should be altered following affirmance by this Court and denial of certiorari by our supreme court. As we discuss below, Dean’s allegation of earwigging was litigated prior to his initial appeal, and the evidence he purports to be newly discovered is merely impeachment evidence that was discoverable prior to trial. As the supreme court has stated, “Rule 60(b) is not an escape hatch for lawyers and litigants who had procedural opportunities afforded under other rules and who[,] without cause[,] failed to pursue those procedural remedies. Rule 60(b) is designed for the extraordinary, not the commonplace.” [Sabal Corp. v.] Howell, 853 So. 2d [122,] at 124 [(Miss. Ct. App. 2003)] (¶4) (quoting Bruce v. Bruce, 587 So. 2d 898, 904 (Miss. 1991)) …

So you can’t create an endless loop of litigation with post-trial motions ad infinitum and absurdum.

Dean is the subject of a prior post wherein I excoriated the practice of so-called (pre-) trial briefs.


Wow. Just Wow

May 6, 2014 § 5 Comments

I am continually amazed, confounded and stupefied at how nonchalantly some lawyers approach their professional duties to their clients.

Thank goodness that most of the shoddiness I witness falls in the venial category — that merits only remonstrance and mere trial judge disgruntlement — usually involving minor dilatory, tardy, and unpreparedness misconduct, and resulting in few legal fatalities.

It’s one thing to step on a chancellor’s toes, but it’s an entirely different ballgame to run afoul of the Mississippi Supreme Court. Jane Tucker offers up this recent breathtaking example in which counsel for appellee had been ordered to appear before a panel of MSSC justices at 1:30 to show cause why he should not be sanctioned for asking for and getting extensions for, and then not filing, an appellee’s brief. Oh, and this same panel had sanctioned another dilatory lawyer earlier in the day, so whatever benevolence they had started the day with had been whittled away. Here’s Jane’s take:

Vicksburg Healthcare v. Dees – this is an interlocutory appeal from the denial of summary judgment in a med mal case where the plaintiff is seeking damages for bed sores.  The case against the nursing home went to arbitration.  Vicksburg Health Care moved to dismiss based on the plaintiff’s failure to have expert testimony regarding the alleged malpractice.  When the motion was denied, it filed a petition for interlocutory appeal which was granted.  Here is its brief

It is almost 2:00 and the attorney for Dees has not appeared. The weird thing is that there is no requirement that the appellee file a brief. There’s no default rule automatically reversing a case if the appellee fails to file a brief.(I’m not advising that appellees not file a brief, of course). I know from my own experience that when the appellee does not file a brief and there is oral argument, the appellee does not get to make an argument. (I was representing the appellant that time). Apparently Dees’ attorney made three requests for extensions (as explained in this order) and never filed a brief which is why her attorney was hit with a show cause order. The lesson here, then, is that if you are the appellee and you are too busy to file a brief, don’t ask for extensions. Here’s the response to the show cause order.

Dees’ attorney finally arrived. So the first question he is asked is why he was late. Not a good start. Same panel as this morning. Generally my method of fixing a screw up is to apologize, apologize, apologize. This attorney is taking the opposite tactic.

The Court recessed before starting with the show cause hearing. They came back and sanctioned him $500 for being tardy.

Another lesson – keep your address listing with the Miss. Bar current.

Lesson 3: if you’re scheduled for a show cause hearing at the Miss.S.Ct., don’t be late. And if you are late, don’t tell the Court you had an emergency meeting with a client in Canton.

The Miss.S.Ct. has always been extremely understanding when it comes to extensions for time. As far as I know, no one was ever executed in this state after having had their brief refused because it was a day late (that would be Virginia). It is one of the many reasons I would much rather practice in the Mississippi Supreme Court than the Fifth Circuit. I hope a few bad apples don’t screw it up for the rest of us.

All in all, this is painful. I may be having nightmares about this for years. It is so bad that the panel is exceedingly concerned about the attorney’s other cases. Justice Kitchens asked him whether there were people who would be going to jail if he screwed up their cases like he screwed up this one.

At 3:49 the Court recessed to deliberate. Dees’ attorney was told to stay and await a ruling.

Ruling: Around 4:30 the panel reconvened and ordered the following: the brief filed on behalf of Dees on February 26, 2014 at around 9 p.m. with the guard’s office that doesn’t appear on the docket and wasn’t served on the Appellant will be accepted. The $500 for being late to today’s hearing will be paid at $100 a month starting June 1. Dees’ attorney will also have to pay $1500 in expenses to the lawyers for the Appellant at $100 a month. Also, he is to report to the Miss. Judges and Lawyers’ Assistance Program within ten days. Since the Court cannot force him to do this, if he does not do this the Court will have the transcript of the hearing sent to the Miss. Bar to do with it as it sees fit. A copy of the order will be sent to Ms. Dees. Justice Randolph expressed some dismay at the fact that these show cause hearings used to be few and far between but that this was the third one this year.

Jane sent a few more observations from the debacle for me to add here:

The address thing was because I think he said he did not get the first order to show cause which was contained in this order.  https://courts.ms.gov/Images/Orders/700_97223.pdf  He said he did not have a scretary and that he had abandoned his P.O. Box without having his mail forwarded.  This did not go over well AT ALL.
At the beginning he was asked why he was late and he told them about a client having an emergency in Canton but it turned out it wasn’t an emergency hearing it was a meeting.  WHen he was late, the clerk (Kathy, I’m pretty sure) called and asked him what was going on and he told her either that he forgot about it or didn’t know about it so the justices questioned him about that and he stated that he had failed to calendar it. I’m pretty sure it was Randolph who later said that if he were told to show cause at the Miss.S.Ct. he would have come a day early and camped out. 
I guess some lawyers think that the judge will not detect how deficient their performance is. But any judge can tell you that there is a huge and immediately perceptible difference between lawyers who are professional and those who are not. And I will bet that there is as much of a correlation between professionalism and success as there is between lack of professionalism and lack of success.

In this case, all I can say is “Wow. Just wow.”

And, by the way, if you’re not a regular reader of Jane’s Law Blog, you’re missing out on a super resource.

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?



March 13, 2013 § 3 Comments

In Forbes v. St. Martin, et al., handed down March 5, 2013, from the COA, the appellants’ first issue on appeal was “Whether the chancellor erred in denying the post-judgment motion of the [appellant] pursuant to MRCP 59.” Judge Griffis, for the majority, said:

¶15. There is actually only one issue in this appeal — whether it was error to grant the summary judgment. A chancellor’s judgment is final and appealable, and there is no requirement that a post-judgment motion be filed to perfect an appeal from chancery court.

¶16. In chancery court, a Rule 59(a) motion may be filed: (i) “for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi,” or (ii) for a new trial so “the court 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.” A Rule 59(e) motion would allow the chancellor to “alter or amend the judgment.”

¶17. Forbes’s brief contends that the chancellor erred in the denial of the motion for reconsideration. “[A] motion to set aside or reconsider an order granting summary judgment will be treated as a motion under Rule 59(e).” Brooks v. Roberts, 882 So. 2d 229, 233 (¶15) (Miss. 2004) (citation omitted). “[T]he movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.” Id. (citation omitted). A chancellor’s decision to deny a Rule 59 motion is reviewed for abuse of discretion. Brooks, 882 So. 2d at 233 (¶15). Forbes has offered no argument that the chancellor abused his discretion in the denial of the motion for reconsideration. Accordingly, we find no error as to the second issue, and we only consider whether it was proper for the chancellor to grant a summary judgment as to all claims. [Emphasis added]

I’ve made the assertion here before that an MRCP 59 motion is not required as a prerequisite to an appeal in a chancery court proceeding where the case was tried to the judge. A case tried to the judge without a jury does not require such a motion. That is the opposite of the rule when a jury has rendered a verdict in circuit and county courts; in those cases a motion for a directed verdict or JNOV under MRCP 50 would be required as a prerequisite to appeal.

The language above is also a good survey of what must be shown to get relief under R59.


September 11, 2012 § 2 Comments

After Van and Myria Strickland were divorced on October 15, 2010, and after Van had filed an appeal, the chancellor entered an “Order Clarifying Judgment” on December 20, 2010. The order awarded the parties the passive-growth increase in the value of asset accounts that had been divided in equitable distribution and had the effect of adjusting and changing the parties’ respective shares.

In the case of Strickland v. Strickland, decided by the COA August 28, 2012, the court vacated the order, holding that the chancery court lacked jurisdiction to enter the December order. The court said:

“Filing a notice of appeal transfers jurisdiction from the trial court to an appellate court, thereby removing the trial court’s authority to amend, modify, or reconsider its judgment.” Corp. Mgmt. v. Green County, 23 So. 3d 454, 460 (¶13) (Miss. 2009). “In other words, the appeal removes the case ipso facto to the appellate courts.” Id. A party may execute on the judgment if an appeal has no supersedeas bond; however, “the [chancery] court cannot ‘broaden, amend, modify, vacate, clarify, or rehear the decree.’” Id. (citation omitted). “On the other hand, when an appeal has a supersedeas bond it effectively suspends the judgment.” Id. (citing In re Estate of Moreland v. Riley, 537 So. 2d 1345, 1348 (Miss. 1989)). As such, “enforcement of the rights declared by the decree are suspended until the appeal is determined.” Id. “When a trial court’s order broadens, amends, modifies, vacates, clarifies, or rehears a decree, ‘it must be vacated as null and void because it exceeds the subject matter jurisdiction of the lower court.’” Id. (citation omitted). See generally M.R.C.P. 59(e) (“A motion to alter or amend the judgment shall be filed not later than ten days after entry of the judgment.”). See also McNeil v. Hester, 753 So. 2d 1057, 1075 (¶68) (Miss. 2000); Bert Allen Toyota, Inc. v. Grasz, 947 So. 2d 358, 362-63 (¶7) (Miss. Ct. App. 2007).

¶20. Van filed his notice of appeal on November 9, 2010. Myria responded by filing her notice of appeal on November 23, 2010. On December 20, 2010, the chancery court entered an order that altered the judgment of divorce by changing the division of the property regarding the increase in value of the asset accounts to the date of the distribution, rather than the date of the temporary order. Because the chancery court’s December 20, 2010 order impermissibly broadened and amended the previous judgments of the court, subsequent to the filing of Van’s notice of appeal, we find that the December 20, 2010 order must be vacated as null and void. See Corp. Mgmt., 23 So. 3d at 460 (¶13) (“When a trial court’s order broadens, amends, modifies, vacates, clarifies, or rehears a decree, ‘it must be vacated as null and void because it exceeds the subject matter jurisdiction of the lower court.’” (citation omitted)). The chancery court lacked jurisdiction to enter such an order. See id. We further find that the May 27, 2011 order, which was before the chancery court on the motion of Myria seeking to enforce the December 20, 2010 order, is also null and void.

I read the authority to mean that, after the time for reconsideration has passed under the MRCP, and once jurisdiction has been acquired by the appellate court, the chancery court can take no action to alter, amend, clarify, modify, or even enforce the judgment. I have had modification cases and contempts filed on judgments that were appealed. The authority cited by Judge Carlton in Strickland makes it clear that as long as the appellate court has not disposed of the appeal the trial court has no jurisdiction to entertain those kinds of actions.

So this is something you need to factor in when deciding whether to appeal. Can your client wait two to two-and-a-half years for a modification or to enforce the judgment while judgment wends its way through the appellate courts?


December 13, 2011 § 7 Comments

It makes a big difference whether or not a judgment is final. You cannot appeal from a judgment unless it is a final judgment.

A final judgment resolves all issues, and requires no further action by the court. Scally v. Scally, 802 So.2d 128, 130 (Miss.App. 2001). It puts an end to the action, disposing of the entire controversy on its merits, so that there is no further question for future determination by the court, except perhaps collateral or separate questions, and there is nothing left to be done but to enforce by execution what has been determined. Fortune v. Lee, 725 So.2d 747, 750-51 (Miss.1998).

MRCP 54 says that any judgment that adjudicates less than all the claims or defenses of the parties does not terminate the action and may be revised at any time before entry of a final judgment.  Two recent COA cases reiterated the point that you can not appeal from a less-than-final judgment. There is, however, an exception in that the trial judge can make a finding under Rule 54(b) that there is no reason for delay, and direct entry of a final, appealable judgment as to certain issues. For instance, the judge could in a divorce case adjudicate the divorce, custody, child support and equitable division, and enter a final judgment as to those issues while retaining jurisdiction to adjudicate alimony later, when the parties’ financial situation becomes more settled. See, McNally v. McNally, 516 So.2d 499, 502 (Miss. 1987).

MRCP 58 states that “A judgment shall be effective only when entered as provided in M.R.C.P. 79(a).” Rule 79(a) is the provision that entry occurs when the clerk enters the judgment on the General Docket. Thus, signing by the judge alone does not create a final judgment, nor does simply handing or mailing the judgment to the clerk, nor even file-stamping the judgment. MRAP 4(a) requires that an appeal must be filed within 30 days after entry of the judgment. In most counties, the clerk enters the judgment immediately or amost immediately when received, but in some rural counties where clerks are understaffed, a judgment can sit around awhile without being docketed.

Until the judgment is entered on the docket by the clerk, it is subject to revision and even reversal by the trial judge, even where the court has issued a written opinion. The court’s opinion is not equvalent to, nor does it have the same force and effect as, a final judgment entered per MRCP 79(a). See, Banks v. Banks, 511 So.2d 933, 935 (Miss. 1987).

MRCP 5(e)(1) and UCCR 2.02 allow the court to accept papers on behalf of the clerk and to mark them as filed. The rules, however, do not provide that filing of a judgment in this fashion constitues entry of the judgment. Again, until the clerk has complied with Rule 79(a), the document is not effective as a final judgment.

After the final judgment is entered on the docket, its finality is subject only to a motion to reconsider under MRCP 59, or for relief from judgment pursuant to MRCP 60.

Every now and then, a disgruntled party will attempt an interlocutory appeal from a temporary judgment. I had this experience in Clarke County. The supreme court sent me its order to respond, and I did, pointing out that the order from which the appeal was taken was a temporary hearing in a custody matter, and was therefore unappealable. I received an order dismissing the appeal the following week. The two main cases on point are Michael v. Michael, 650 So.2d 469, 471 (Miss. 1995)  and McDonald v. McDonald, 850 So.2d 1182, 1193 (Miss.App. 2002).

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