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.
HOW TO WASTE A TRIP TO THE COA
March 21, 2012 § 3 Comments
We’ve talked here before about the futility of filing an appeal from a judgment that disposes of fewer than all of the issues that were pled and tried, and does not include an MRCP 54(b) certification.
The latest manifestation of the principle appeared in the COA case of Williams v. Claiborne County School District, et al., decided February 21, 2012. In that case, the school district complained in its cross-appeal that the trial judge erred by not granting it the $120,000 in damages it had asked for in its pleadings. Indeed, the chancellor did not even address the issue of damages.
Oops. On its own initiative (after having been alerted by the cross-appeal), the COA dismissed both the appeal and the cross-appeal because the judgment disposed of fewer than all the issues, and did not include an MRCP 54(b) certification by the judge, meaning that it was not a final, appealable judgment.
Another wasted trip to the COA. Think of those long, lonesome, solitary (albeit billable) hours working on briefs and record excerpts, on reply and rebuttal briefs, on research. Think of what the clients will say when they get the bills for all that time spent to produce nothing but a return to the starting line. Ouch.
As I’ve said before, if you feel that the judge has not addressed an issue so that you don’t have a final judgment, or if you’re in doubt about it, file a timely MRCP 59 or 60 motion and raise the point so that the judge can either (a) address the missing issue, or (b) schedule a trial on the missing point, or (c) amend the judgment to add a 54(b) certification.
COA SINKS ANOTHER APPEAL FROM A LESS-THAN-FINAL JUDGMENT
July 20, 2011 § 4 Comments
It was only last month that the COA dispatched two appeals to dismissal-land because they were taken from less-than-final judgments. You can click the link to read about Jackson v. Lowe and S.E.B. v. R.E.B. The underlying principle is, you will recall, that an appeal only lies from a final judgment, and if any issues remain unadjudicated and not addressed as required in MRCP 54(b), your appeal will be dismissed.
The COA once again confronted the issue in R.A.S. Jr., K.S., A.S, V.S. and M.S. v. S.S., rendered July 19, 2011. In that case, the appellant, referred to as “Matt,” had filed a Chancery Court modification action seeking to reduce his $6,900 per month child support. His ex, “Anna,” responded by charging him with molesting one of their children. The charges were nol prossed, and Matt countered with a chancery motion for an accounting of the child support. Later, he filed an amended petition asking to “reform” original decree provisions for child support and custody.
The chancellor held a motion hearing and, without hearing any evidence, ruled from the bench that he was going to leave physical custody and legal custody as they were. He stated, “I’m not here today to decide [the modification issue] … I’m not going to address those motions stoday as to whether or not they meet the legal standard.” The judge later entered an order denying Matt’s request for an accounting, reserving ruling on the modification.
Matt filed a motion for a new trial (Note: in chancery this is a motion for rehearing, traditionally referred to as a motion for reconsideration), and Anna filed a motion for payment of certain expenses provided in the original judgment. The judge overruled Matt’s motion and denied Anna’s motion without addressing certain transportation expenses she had requested.
Matt complained on appeal that the chancellor refused to allow him to present evidence on his modification pleading, instead putting off a hearing so that Anna’s parenting could be monitored. A guardian ad litem had been appointed.
In every one of the chancellor’s rulings cited by the COA, it is clear that the judge was not making a final ruling. The COA said at ¶ 20 that
“The chancellor’s orders here were not final. We fully recognize that child-custody decisions are always subject to modification until the children’s emancipation. And no judgment entered is final in the sense of ending the case until that point. However, that the case involves custody modification does not eliminate the requirement that the chancellor enter a final, appealable judgment. Absent proper Rule 54(b) certification or the supreme court’s permission to proceed on an interlocutory appeal, which are both lacking here, piecemeal appeals are not allowed.
The chancellor clearly deferred ruling on contested issues, which he had not revisited when the parties appealed. Because we find the chancellor did not enter a final, appealable judgment, we dismiss this appeal for lack of jurisdiction.”
The court also pointed out that the supreme court has held in Michael v. Michael, 650 S0.2d 469, 471 (Miss. 1995), that parties may not appeal from a temporary order.
From Judge Maxwell’s opinion in this case, it appears that the record was somewhat confused. It may have been confusing to counsel as to exactly what matters were being addressed in which proceedings. I suggest you get a clear understanding with your chancellor either before hearing or when he casts the pleadings at the outset of trial as to what matters will be addressed. If you’re perplexed that the judge won’t address a certain issue at a certain time, try to pin him down on the record as to when, exactly, you can be heard on the issue.
In any event, the COA has once again sent an important message to trial and appellate counsel: If you don’t have a final, appealable judgment, your appeal will be dismissed.
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