WHAT DOES IT DO TO YOUR APPEAL WHEN THE TRIAL JUDGE DOES A DOUBLE-TAKE?
August 11, 2011 § 4 Comments
Here’s a little nightmare scenario for you …
Chancellor renders a judgment of divorce. Among other provisions, the judge ordered that the homestead and certain personalty be sold by the Chancery Clerk, the administrative costs be paid, and then the remaining proceeds be divided between the parties. Your client is unhappy enough to pay you to file an appeal from the judge’s adjudication of equitable distribution. It takes him a couple of weeks to scrape together your fee, but the appeal clock still has plenty of ticks. Client comes in at last and pays the freight. You start work on the notice of appeal, and while you’re at it …
Twenty days after the judgment is entered, here comes a sua sponte order from the court clarifying the instructions to the clerk as to the specific items of personalty that were to be sold, and how the homestead proceeds were to be divided. You have other pressing matters on your plate, so you are relieved that the judge reset the appeal clock for you. Finally, 29 days after the clarifying order, your file your notice of appeal.
Is there a problem?
The above facts happened in Penton v. Penton, decided by the COA on April 13, 2010. Judge Barnes’ opinion points out that the appellate rules and our case law are silent as to the effect of a sua sponte order of the trial court such as that in this case. This second order was not a reconsideration with a substantive change of the original judgment. Reconsideration was limited to within ten days of the original judgment under MRCP 59. Nor did it involve correction of a clerical error under MRCP 60. The second order did not substantively change the award in the original judgment; it merely made the instructions clearer for the clerk.
Looking to federal case law, Judge Barnes concluded that ” … only when the lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken … begin to run anew.” She found that the provisions of the second order were not substantive, so it did not have the effect of extending the appeal time from the original judgment.
The opinion noted that entry of the second order still left time for appeal from the original judgment, and that counsel could have filed a motion with the trial court to extend the time for appeal, if that were needed to evaluate the sua sponte order, but no such motion was filed.
The result was that the appeal was dismissed as untimely filed.
As a matter of practice, this case illustrates that it’s better under the current state of the appellate rules to file a premature notice of appeal than to file too late. Once the deadline passes without a motion to extend having been filed, the appeal is dead.
I’ve held off commenting on this case because it’s an unpublished opinion and obviously addresses a matter of first impression of Mississippi. I have surmised that publication is being held pending evaluation by the Supreme Court, since that court has jurisdiction to adjudicate first impression cases.
POST-TRIAL MOTIONS: ROUND THREE
March 23, 2011 § 3 Comments
I’ve posted here about the necessity to file post-trial motions to preserve error in chancery court, and how the COA’s January 25, 2011, decision in Robinson v. Brown may have changed our traditional practice. Then the COA stayed the mandate and we awaited a new decision.
The new Robinson v. Brown opinion was issued yesterday, March 22, 2011, and in my judgment we are back exactly where we started: You’d better file those post-trial motions if you expect to raise an issue on appeal.
Although the new opinion actually addresses and analyzes the sufficiency of the chancellor’s findings, the court states at ¶ 23 that, “In this case, we likewise find the challenge of the chancellor’s findings in the instant case procedurally barred.” The two cases cited in support of the point are distinguishable both on their facts and their procedural posture, but no matter. The COA is determined to interpret MRCP 52(b) in its own way.
I have other fish to fry, so I don’t really have the time or energy to devote to breaking this down further. Besides, I am out of the appeal business. It’s lawyers like you who have to deal with this.
If the supreme court will take this case on cert and look closely at it, perhaps our supreme chancellor, Justice Pierce, will be afforded the opportunity to elucidate this for us. If I were still practicing law in chancery court I would certainly want the point clarified for the sake of my clients and my malpractice insurance premiums.
In the meantime, I stand by my earlier suggestion to file those post-trial motions raising every conceivable point possible that you may wish to raise on appeal. If you don’t you may find yourself “procedurally barred” in the COA.
SWEEPING DUSTBUNNIES
November 18, 2010 § 2 Comments
Have you ever noticed that mistakes and missteps seem to pile up in some cases despite your best efforts, just like those dustbunnies that pile up under that buffet in your dining room no matter how hard you try?
The case of Estate of Bellino v. Bellino, decided by the Court of Appeals on November 2, 2010, is one of those “dustbunny” cases, and it merits your attention. For ease of following this, we’ll mark the dustbunnies as they accrue with the international dustbunny symbol: ¤.
Stephen and Margaret Bellino were married in 1974. During the marriage, Stephen inherited $200,000 and opened a securities account with A. G. Edwards (AGE). In 1995, he and Margaret executed a joint account agreement declaring the account to be a joint tenancy with right of survivorship.
Alas, the marriage foundered, and the erstwhile blissful couple faced off in court. Their marriage ended May 2, 2006, with entry of a final judgment of divorce.
And that is when the discombobulating deluge of dustbunnies (¤) began to develop.
It seems that the divorce judgment made no mention of the AGE account. That would be the first ¤.
Stephen became aware of the problem when he tried to make a withdrawal and was refused by AGE, which took the position that it could not allow any withdrawals until the court addressed the ownership issue. Another ¤.
Stephen filed an MRCP Rule 59 motion to alter or amend the judgment to address the oversight. Only problem is that he waited until May 15, 2006. That would be a major ¤ because it was filed more than ten days after entry of the judgment, and so the motion was time-barred.
In all the hubbub surrounding the issue, Stephen never got around to changing ownership of the account. This is one of those ¤’s that spawns lots of other ¤’s.
Before the issue could be resolved by the judge, Stephen died on June 18, 2006. Regrettable as it is, this development was also a ¤.
Stephen’s estate was duly opened in July. There is no mention of the estate being substituted as a party in the divorce action under MRCP 25. Probably a ¤.
In November, the attorney for the estate approached the chancellor and, without any notice to Margaret or her attorneys, obtained an order directing AGE to pay the funds to the estate. No question this was a ¤.
To compound matters, the attorney for the estate never filed the order (or, it appears, any motion therefor) in either the estate or divorce file, and never served it on Margaret’s attorneys. That would be ¤ ¤ ¤.
They’re beginning to pile up, aren’t they?
The chancellor set aside the order (he was likely not happy with the way it had been handled) and eventually ruled that the account was Margaret’s. A ¤.
At this point the attorney for the estate realized that the dustbunnies were getting out of hand, so he started trying to sweep them up. The problem is that when you sweep dustbunnies it tends to scatter them and they seem to proliferate, which is exactly what they did.
The attorney for the estate filed an appeal. Now, this is really a dustbunny because the issues are fairly straightforward and not really in doubt. Score another ¤.
Right off the bat the court of appeals criticized the attorney for the estate for not filing a statement of issues after being asked not once but several time by the appellate court to do so. That would be another ¤ ¤ ¤. The court even thought about not considering his brief, which is, of course a ¤.
The court of appeals ruled that Margaret got the money because Stephen never changed the account and it was hers by survivorship. A predictable ¤.
Stephen’s estate will be stuck with the cost of cleaning up all these dustbunnies, and will have nothing to show for it. That’s a ¤ right there. In the alternative, the estate could insist that its attorney bear the cost of the appeal, which would be his own personal ¤.
So there you have it. Too many dustbunnies and before you know it you have a mess too big to clean up.
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