March 13, 2019 § Leave a comment
The chancellor takes custody away from your client and awards it to the maternal grandmother, who had pled not only for custody, but also for child support.
On the latter issue the judge held “the issue of child support to be paid by [the natural parents] in abeyance,” and allowed for a review hearing on the issue of child support after six months.
You file a R59 motion, which is denied.
Your client wants to appeal. When do you appeal? (A) Now? (B) Some time after six months? (C) After the court finally rules on child support? (D) When the child has his first holy communion?
The answer is (C), because you can only appeal from a final judgment or from a less-than-final judgment only when the court certifies that there no just reason for delay and directs entry of a final judgment. That’s MRCP 54.
The above scenario is from the COA’s decision in Britt v. Holloway, decided January 15, 2019, in which the court dismissed the appeal for lack of jurisdiction.
The law can sometimes seem to be filled with snares and traps for the unwary, so it is understandable that lawyers sometimes jump into an appeal even when there is no final judgment simply to escape the terror of being too late to appeal.
Oh, and before we leave this, that reference above to holy communion was a red herring. I thought you might want to know.
August 31, 2015 § Leave a comment
If a chancellor orders joint custody to be effective only until the child turns five in 2017, at which time the matter will be reviewed, is that a final, appealable judgment?
That was one of the questions addressed by the COA in the case of Thames v. Thames, decided July 28, 2015. We discussed this case here before in the context of the reasonability of a joint custody arrangement.
I say it was “addressed” because the court dealt with it as if the appeal had raised the R54(b) argument as a jurisdictional issue. The appellant, though, did not argue it that way. Rather, she contended that the chancellor erred by violating the maxim that “equity delights to do justice completely and not by halves” when he failed to determine who would have custody of the parties’ daughter after she started five-year-old kindergarten.
What the chancellor actually said was that the parties could have the option either: (a) to agree to a review hearing in February, 2017; or (b) to certify the judgment as final and appealable per R54(b). Despite that, in the record there is no order or judgment agreeing to a review hearing, and there is no R54 certification.
Undeterred, Debra Thames appealed. The case was reversed on other grounds, but here is how Judge Lee dealt with Debra’s maxim argument:
¶10. While Debra does not argue that the judgment was not final and appealable, the underlying issue is the same, and that is whether any issues remain to be resolved [in the litigation before the chancellor]. Following the reasoning in Crider [v. Crider, 905 So.2d 706, 707-08 (¶¶3-5) (Miss. App. 2004)], we find that the judgment was final, and it disposed of all of the issues until Sofia starts five-year-old kindergarten. While the chancellor in this case did not specify the exact month and year in the final judgment as did the chancellor in Crider, the visitation schedule ends in February 2017 [Fn omitted], and the chancellor stated that the order is to remain in effect until further order of the court and only until Sofia starts five-year-old kindergarten. Furthermore, the chancellor gave the parties the option of agreeing to a future hearing to review custody or making the judgment a Rule 54(b) judgment. Either way, a future hearing was to be held to revisit custody. Formal recognition of the need to revisit custody before Sofia starts five-year-old kindergarten did not prevent the judgment from being final.
From this we can take away that a chancellor in a case such as this may leave open the possibility of a future custody arrangement based on a future event that will be a major turning point in the child’s life, such as beginning school, and the fact that it will need to be revisited will not affect its finality for appeal. Allowing chancellors this kind of flexibility provides more options for the trial judge to employ for the best interest of the child.
I think this is a very narrow holding, and you will be unsuccessful if you try in different set of facts to stretch this holding to justify an appeal from an incomplete 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.
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.
April 22, 2013 § 3 Comments
Anyone who has ever canoed or kayaked a swift-flowing stream knows that you can get caught in a whirlpool of cross-currents that is mighty difficult to get free of, and, instead of paddling along one’s intended course, one paddles frantically to break loose.
That’s the effect of what happened in McBride v. McBride, a COA case decided April 2, 2013. In that case, Robert and Vanessa were involved in a divorce. The court rendered a final judgment, and Vanessa filed a Rule 59 motion for rehearing (which she styled as a motion for reconsideration, btw). Some four months later Robert filed his “Motion for rehearing on Vanessa McBride’s Motion for Reconsideration, or, in the Alternative, for New Trial.” So, what we have here is a motion to “reconsider” the reconsideration; a post-trial whirlpool, if you will. Vanessa appealed.
In its opinion, the COA says at ¶13, “In her brief, Vanessa claims that Robert’s motion was not allowed ‘as the law allows one motion for reconsideration/new trial after a judgment is entered.’ Yet, Vanessa does not cite any authority for this legal principle.” And at ¶16: “As much as we may like to impose a one-motion-for-reconsideration rule, there is simply no authority to impose such a limitation …”
Now, it’s unclear to me exactly what Vanessa was attempting to argue with her one-motion claim, but I do believe there is a one-motion-for-Rule 59- relief rule expounded by our courts. In Edwards v. Roberts, 771 So.2d 378, (Miss.App. 2000), the COA addressed the issue in the context of a circuit court ruling on a motion for a new trial, which is the circuit court counterpart to the chancery court motion for rehearing, both of which are brought under MRCP 59. Here’s what the court said:
¶ 21. We start with the settled law that after a motion for new trial has been denied, no right exists to file for reconsideration. We find that reasoning equally applicable to motions for JNOV. “When the procedure authorizing a motion for a new trial has been followed and, pursuant to proper notice, the parties have made their representations to the court, and the court has duly considered and made his decision upon that motion, that completes both the duty and the prerogative of the court.” Griffin v. State, 565 So.2d 545, 550 (Miss.1990) (emphasis added). In Griffin, the lower court sustained two criminal defendants’ motion for new trial as to two of the counts, and overruled as to one count. Id. at 545. The defendants fled and were captured several years later. Id. At that time the State moved to set aside the order granting a new trial. Id. The judge sustained the State’s motions because he believed that he had made an error at law in granting a new trial. Id. On appeal, the Supreme Court found that the judge had no authority to revoke his earlier order for a new trial. Id.
¶ 22. The Griffin court relied on other states that had addressed the same question. Among other authorities, the court quoted the California Supreme Court’s holding that, “It has long been the rule that ‘A final order granting or denying [a motion for a new trial], regularly made, exhausts the court’s jurisdiction, and cannot be set aside or modified by the trial court except to correct clerical error or to give relief from inadvertence….’ ” Griffin, 565 So.2d at 549 (citing Wenzoski v. Central Banking Sys., 43 Cal.3d 539, 237 Cal.Rptr. 167, 736 P.2d 753, 754 (1987)). Once a motion for new trial has been ruled upon:
[I]f the party ruled against were permitted to go beyond the rules, make a motion for reconsideration, and persuade the judge to reverse himself, the question arises, why should not the other party who is now ruled against be permitted to make a motion for re-re-consideration, asking the court to again reverse himself? … This reflection brings one to realize what an unsatisfactory situation would exist if a judge could carry in his mind indefinitely a state of uncertainty as to what the final resolution of the matter should be.
Griffin, 565 So.2d at 549–50 (citing Drury v. Lunceford, 18 Utah 2d 74, 415 P.2d 662, 663–64 (1966)).
 ¶ 23. Though Griffin is a criminal case, the Supreme Court’s principal authorities for holding it improper to move for reconsideration of a motion for new trial were civil cases under versions of Rule 59. The Supreme Court’s conclusion that ruling on one motion for new trial exhausts the power of the court to entertain another such motion, certainly has an impact here. Until a judgment is final, a court has the authority to amend it. Griffin v. Tall Timbers Development, Inc., 681 So.2d 546, 552 (Miss.1996). Conversely, once it is final the authority is lost. The court’s initiating it own reconsideration removes the finality of the judgment after an earlier motion was denied. That creates the same difficulties that were discussed in Griffin v. State. Just as a second motion under Rule 59(a) cannot be brought by a party after an earlier Rule 59(a) motion has been denied, neither can the trial court itself entertain its own reconsideration under Rule 59(d) or Rule 50(b).
¶ 24. This is not to say that the finality of the judgment created by the denial of the first motion for new trial is absolutely unchangeable. Griffin v. State itself says that one last tool remains—correcting clerical error, relieving inadvertence, responding to newly discovered evidence, or otherwise considering the grounds for a Rule 60 motion. Griffin, 565 So.2d at 549. Since the state and federal versions of Rule 60 are similar, we can seek a better understanding of what can be achieved under Rule 60 by examining an explanation of federal caselaw. The Mississippi Supreme Court has said “the federal construction of the counterpart rule will be ‘persuasive of what our construction of our similarly worded rule ought to be.’ ” Bruce v. Bruce, 587 So.2d 898, 903 (Miss.1991) (citation omitted). The following section of an eminent treatise on the federal rules first explains that a denial of a new trial motion cannot be reconsidered, and then suggests what remains:
Term time as both a grant and limitation upon the district court’s power over its final judgments has been eliminated.[ footnote omitted] In lieu thereof and in the interest of judgment finality a short time period, that is not subject to enlargement, has been substituted, within which a party may move for a new trial or to alter or amend the judgment. When the court has decided such a motion in a way that the finality of the judgment has been restored, then relief, if any, should come by appeal or by a motion under Rule 60(b), which does not affect the finality of the judgment or suspend its operation. It would be destructive of the general aim of the Rules to permit successive attacks upon final judgments on motions to reconsider orders that deny new trial, or that deny or grant an alteration or amendment of the judgment.
The logic is clear that if there were no limit to motions for rehearing, there would never be an appeal from a final judgment as long as the successive motions are pending. It would be like getting caught in that whirlpool when you’re trying to paddle to finality.
McBride was reversed and remanded on other grounds. Judge Griffis’s opinion addresses the vernacular use of the term “reconsideration” at ¶15. It’s a subject we’ve discussed here previously.
March 12, 2013 § Leave a comment
Some lawyers are confused about when and how a judgment precludes a return trip to court by operation of res judicata. The confusion is somewhat understandable, since in chancery court we often deal with return trips for modifications and contempts. It’s been discussed here before.
There are chancery cases, however, such as divorce judgments as to property and grounds, property disputes, suits for rescission and specific performance, actions to contest wills, and the like where res judicata can operate as a bar — or not.
The COA case of Rodgers v. Moore, et al., decided last November by the COA, is one of those cases. In 2004, the Moores filed suit to remove cloud on title against Mary Rodgers. In 2006, the suit was dismissed by the court without prejudice pursuant to MRCP 41(d) for failure to prosecute. In 2007, the Moores filed yet another suit, and Mary Rodgers, proceeding pro se, answered that the suit should be dismissed as res judicata due to the prior dismissal. There are some other procedural wrinkles in the case that do not directly pertain to my point here.
The chancellor ruled that the 2004-filed proceeding was not res judicata, and Mary appealed.
Judge Roberts, writing for the court that affirmed the chancellor’s ruling, gave us a handy exposition on the principles of res judicata and why they did not bar the 2007 suit:
¶10. Rodgers first asserts that the chancery court erred in finding that the doctrine of res judicata was not triggered in the current case. The doctrine of res judicata requires the presence of four identities before it is applicable, and the absence of any of the identities is “fatal to the defense of res judicata.” Hill v. Carroll Cnty., 17 So. 3d 1081, 1085 (¶10) (Miss. 2009) (citations omitted). The four identities are as follows: “(1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made.” Id. (citing Harrison v. Chandler-Sampson Insurance, Inc., 891 So. 2d 224, 232 (¶24) (Miss. 2005)). Additionally, a fifth requirement is that there must be a final judgment adjudicated on the merits. See Harrison, 891 So. 2d at 232 (¶22); Beene v. Ferguson Auto., Inc., 37 So. 3d 695, 698 (¶7) (Miss. Ct. App. 2010). If these five things are established, then res judicata bars any claims that were brought in the prior action or could have been brought in the prior action. Hill, 17 So. 3d at 1084-85 (¶¶9-10).
¶11. Rodgers submits that the four identities are present. She also claims that the chancery court’s dismissal of the case filed in 2004 without prejudice was a final judgment on the merits. According to Rodgers, the plaintiffs in the first suit failed to show ownership of the property, thereby failing to establish superior title. We agree with Rodgers’ contention that the first, second, and fourth identities are present; however, we do not find that the third and fifth identities are necessarily present. The first identity is met because the subject matter of both suits was to remove a cloud on the title of a specific piece of land. The second is the identity of a cause of action. This “is found where there is a commonality among the ‘underlying facts and circumstances upon which the present claim is asserted and relief sought.’” Studdard v. Pitts, 72 So. 3d 1160, 1162 (¶9) (Miss. Ct. App. 2011) (quoting Riley v. Moreland, 537 So. 2d 1348, 1354 (Miss. 1989)). The causes of action in both cases are the same. Fourth is the quality of the persons against whom the claim is made, which are also the same.
¶12. In dispute are the third identity and the fifth requirement. The third identity is whether the parties in both actions are the same or are in privity with the original parties. See Little v. V & G Welding Supply, Inc., 704 So. 2d 1336, 1339 (¶15) (Miss. 1997); Williams v. Vintage Petroleum, Inc., 825 So. 2d 685, 689 (¶17) (Miss. Ct. App. 2002). It is clear that the original parties to the suit are also parties in the second suit. However, the second suit contains several additional parties not in the original suit. What is unclear from the record is whether these additional parties were in privity with the original parties; nonetheless, the determination of this identity is not dispositive, as the fifth requirement is clearly not met.
¶13. The fifth requirement is that there has been a final adjudication on the merits in the original suit. We do not agree with Rodgers’s claim that the chancery court’s dismissal without prejudice of the 2004 case was an adjudication on the merits. In its October 11, 2010 opinion, the chancery court stated that the original case was dismissed “without ruling on any of the issues brought by either party[.]” In Williams, 825 So. 2d at 688 (¶12) (citing Stewart v. Guar. Bank & Trust Co. of Belzoni, 596 So. 2d 870, 872-73 (Miss. 1992)), this Court stated: “A voluntary dismissal taken without prejudice is not an adjudication on the merits and does not operate as res judicata in subsequent suits.” See also Ladnier v. City of Biloxi, 749 So. 2d 139, 156 (¶69) (Miss. Ct. App. 1999). The chancery court’s dismissal of the 2004 case without prejudice was not an adjudication on the merits. The dismissal was on the ground that the “pleadings did not establish the [p]laintiffs as the proper parties to the litigation.” No issue involving the ownership of the disputed property was addressed by the chancery court; therefore, the chancery court was correct in finding that res judicata did not bar the second suit.
An MRCP 41(d) dismissal, then, is not a dismissal on the merits, is without prejudice, and will not operate as res judicata, because it is not a final judgment disposing of all claims in the case. Neither is a voluntary dismissal or any dismissal without prejudice. Don’t overlook, though, that a statute of limitations may run in the time that the case lies dismissed.
Modifications and contempts are not barred by res judicata because (1) the court retains jurisdiction to consider modification of certain issues, and to enforce its judgments, and (2) they are not a relitigation of the prior action, and they are based on and limited to matters occurring post the final judgment.
This case does not add anything substantive to my previous post on the subject, other than some additional authority that you can cite as needed, but it does illustrate the character of judgment that is necessary to operate as a bar.
September 4, 2012 § Leave a comment
When is a judgment entered?
It’s an important question to ponder because some drop-dead deadlines start ticking away on entry of a judgment. MRCP 59 and 60 are two rules that have those kinds of provisions. MRAP 4(a) says that the notice of appeal to the MSSC must be filed ” … within 30 days after the date of entry of the judgment or ordered appealed from.” There are other rules with similar deadlines tied to entry of the judgment.
The last sentence of MRCP 58 says “A judgment shall be effective only when entered as provided in MRCP 79(a).”
MRCP 79(a) directs that the chancery clerk shall keep a General Docket in which shall be recorded all papers filed with the clerk, all process issued and returns, appearances, orders, judgments. Each entry is to show the date the entry is made.
In the case of Univ. of So. Miss. v. Gillis, 872 So.2d 60, 63 (Miss.App. 2003), the court held that a judgment becomes effective on the date it is entered on the docket.
When that judgment is entered can have a big effect on when your clock starts ticking for post-trial and appellate proceedings.
So here is my opinion about what are not final judgments:
- A document styled Final Judgment that has been file-stamped by the clerk, but is not entered on the docket.
- A document signed by the judge but not docketed.
- Even if the judge endorses the judgment “filed,” per MRCP 5(e), it is still not effective until entered on the docket by the clerk. MRCP 5(e) allows the judge to endorse a pleading or other document “filed,” but I believe that is only an effective date as to the filing of a pleading. It does not make a judgment effective because there is no entry on the General Docket. To me, the judge’s endorsement has no more effect than the clerk’s file stamp. It shows when it was received by the clerk, but does not render the judgment effective.
- If the judge renders an order or judgment from the bench and signs it, it is still not effective until docketed. It is the act of docketing that makes the judgment final and effective.
Of course, a decision or opinion is not the same thing as a judgment. There is case law that says that the court’s bench opinion does not have the finality of a judgment. Banks v. Banks, 511 So.2d 933, 935 (Miss. 1987); Hinson v. Hinson, 877 So.2d 547, 548 (Miss.App. 2004).
On a related point, in 2004, Rule 58 was amended to add the language that even if a final judgment is improperly titled, unless prejudice can be shown, it will be afforded the effect of a final judgment if its language clearly indicates it is so. The amendment effectively overrules a line of Mississippi Supreme Court cases that held that if a court order did not include the word “judgment,” it would not be treated as one even where no prejudice could be shown: Thompson v. City of Vicksburg, 813 So.2d 717 (Miss.2002); Mullen v. Green Tree Financial Corp., 730 So.2d 9 (Miss.1998); and Roberts v. Grafe Auto Co., Inc., 653 So.2d 250 (Miss.1994).
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.
October 7, 2010 § 4 Comments
After a few weeks, the judge has issued his opinion in that thorny divorce trial. He granted your client’s wife a divorce and gave her custody and child support, but ordered that you and the other attorney produce appraisals before he will adjudicate the equitable distribution and the alimony claim. Your client is hopping mad at the outcome and demands that you appeal the judge’s ruling immediately. Can you?
MRCP 54(b) provides that the when there are multiple claims for relief or multiple parties, the court may order final relief as to one or more but fewer than all of the claims or parties “only upon an expressed determination that there is no just reason for delay and upon an expressed direction for entry of the judgment.” If the court does not so direct, then any order issued that adjudicates fewer than all of the claims or rights of fewer than all of the parties, no matter whether it is entitled as a judgment, is not final, and is subject to revision at any time.
So what does this mean? There are several ramifications. One is that if the partial judgment or order does not specifically direct that it is final, you may not appeal from it until the entire action is finalized. If it does include the required finality language and you do not file a timely appeal, you may find yourself shut out from an appeal on the matters addressed in that order. Another ramification of non-finality is that the Chancellor may change it at any time, even beyond ten days after its date, because the provision of MRCP 59 that allows the Chancellor to alter his judgment within ten days of entry applies exclusively to final, appealable judgments.
And what exactly is a judgment, anyway? MRCP 54(a) states that “‘Judgment’ as used in these rules [MRCP] includes a final decree and any order from which an appeal lies.” Any interlocutory adjudication is an order, and not a judgment; thus, e.g., Temporary Order, Order Compelling Discovery, Scheduling Order, Order Deeming Requests for Admission as Admitted.