A Rule 54(b) Quandary

December 18, 2013 § Leave a comment

What does one do when the chancellor adds language to a ruling on a particular issue to the effect that it is certified as a final, appealable judgment, although the ruling leaves intact the lawsuit between the parties?

That is the quandary that confronted the Northeast Mental Health-Mental Retardation Commission in a case it filed against V.M. Cleveland to void a lease that it considered unreasonable. Cleveland filed a counterclaim asking for damages for breach of contract and for a declaration that the lease was enforceable. Both parties filed motions for summary judgment. The chancellor denied the Commission’s motion in toto, but granted Cleveland’s motion in part, ruling only that the lease was enforceable, and denying the remainder of the motion because there were genuine issues of material fact, etc. After he ruled on the two R56 motions, the judge added, on his own initiative, that “Insofar as the enforceability of the contract, the court certifies that this is a final decision, appealable pursuant to MRCP 54(b).”

Faced with uncertainty as to what it should do, the Commission filed both an MRAP 5 application for an interlocutory appeal, and an MRAP 3 notice of appeal. The agency frankly admitted to the court that it was unsure which was the appropriate avenue, if any, to take vis a vis an appeal.

On November 21, 2013, the MSSC denied the petition for interlocutory appeal, leaving the MRAP 3 appeal pending before the COA. The COA decided the case of Commission v. Cleveland with fairly predictable results on December 3, 2013. Judge Maxwell’s opinion for the court, lays it out:

¶12. Only final judgments may be appealed. Harris v. Waters, 40 So. 3d 657, 658 (¶3) (Miss. Ct. App. 2010). “A final, appealable[] judgment is one that adjudicates the merits of the controversy which settles all issues as to all the parties and requires no further action by the lower court.” Walters v. Walters, 956 So. 2d 1050, 1053 (¶8) (Miss. Ct. App. 2007) (emphasis added and internal quotation marks omitted).

¶13. “Rule 54(b) provides an exception to the final-judgment rule.” Harris, 40 So. 3d at 658 (¶4). Under this rule, the trial court may “direct the entry of a final judgment as to one or more but fewer than all of the claims or parties[.]” M.R.C.P. 54(b). “According to the official comment to Rule 54(b), the basic purpose of the rule ‘is to avoid the possible injustice of a delay in entering judgment on a distinctly separate claim or as to fewer than all of the parties until the final adjudication of the entire case by making an immediate appeal available.’” Harris, 40 So. 3d at 658 (¶5) (emphasis added) (quoting M.R.C.P. 54(b) cmt.).

¶14. However, for a judgment or order to be eligible for Rule 54(b) finality, “the case [must] include either multiple claims, multiple parties, or both, and . . . either one or more but fewer than all the claims [must] have been decided, or . . . all the rights and liabilities of at least one party [must] have been adjudicated.” M.R.C.P. 54(b) cmt. The comment makes clear that “[d]espite its apparently broad scope, Rule 54(b) may be invoked only in a relatively select group of cases and applied to an even more limited category of decisions.” M.R.C.P. 54(b) cmt. And “[a] decision that leaves a portion of the claim pending as to all defendants does not fall within the ambit of Rule 54(b).” M.R.C.P. 54(b) cmt. …

¶15. The chancellor’s grant of partial summary judgment did not decide a claim between the two parties. Rather, it merely decided an issue within their claims—whether the contract was enforceable. This decision resulted in the denial of summary judgment to the Commission. And the denial of summary judgment is an interlocutory order that may only be appealed by permission. Hinds Cnty. v. Perkins, 64 So. 3d 982, 984 (¶7) (Miss. 2011). The chancellor’s decision also led to the partial grant of summary judgment in favor of Cleveland. But none of Cleveland’s claims were fully resolved. The chancellor was clear in his order that, despite the contract being enforceable as a matter of law, full summary judgment could not be granted because there were still “genuine issues of material fact” concerning whether the Commission could validly take actions to rescind the contract.

¶16. Because the chancellor’s decision left a portion of Cleveland’s claim pending, the chancellor’s order did not fall within that “limited category of decisions” in which Rule 54(b) may be applied. M.R.C.P. 54(b) cmt. Thus, the Rule 54(b) certification is invalid, and the decision that is the subject of this appeal is not a final, appealable judgment. Lacking jurisdiction to address the merits of the chancellor’s decision, we dismiss the appeal.

Not having the benefit of the entire record, we are at somewhat of a disadvantage, but, if I understood the opinion correctly, the judge did finally adjudicate a key issue of Cleveland’s case, which was whether the contract was enforceable. I can understand why the chancellor thought the parties should have a shot at appellate review of that issue, since it was a major pivot point upon which both cases turned. If it were upheld, major litigation, time and expense could be avoided. If reversed, the litigation might be ended. Either appellate ruling might quite possibly have avoided a retrial in a subsequent appeal.

All that being said, I understand the COA’s position. Since most of Cleveland’s case remained unresolved, the explicit language of R54(b) was not satisfied.

I said here only last week that I wondered why all the confusion over R54(b) and how to remove the uncertainty once and for all. I don’t think this is the case that does the job.

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?



January 16, 2013 § Leave a comment

Can a chancellor order alimony in an opinion to take effect before entry of the judgment?

That was the question in McCarrell v. McCarrell, 19 So.3d 168, 171 (Miss.App. 2009). In that divorce case, the chancellor had rendered a written opinion on December 20, 2007, concluding that Billy McCarrell should pay Janie McCarrell $1,800 a month in rehabilitative alimony, commencing January 5, 2008, and continuing for five years. The judgment corresponding to the court’s opinion was not filed and docketed by the clerk until January 18, 2008, thirteen days after the date of the first ordered payment. The judgment did incorporate the judge’s opinion.

Billy took the position that he was required only to comply with the final judgment, and not with the opinion. Since the final judgment was not entered until after the initial payment date was passed, he argued that the alimony obligation did not go into effect until after the date of the judgment.

On the face of it, Billy’s position makes some sense, because MRCP 58 states that “A judgment shall be effective only when entered as provided in MRCP 79(a),” and 79(a) defines entry as docketing on the General Docket showing the date of entry and a brief description, followed by filing in the court file.

What Billy overlooked, though, was the power of the chancellor to order interlocutory and temporary relief. The court said, beginning at ¶12:

… our jurisprudence recognizes that the chancellor possesses the statutory authority to order temporary alimony and make proper orders and judgments thereon. Miss.Code Ann. § 93-5-17(2) (Miss.2004). Moreover, courts are always deemed open for purposes of making and directing all interlocutory motions, orders, and rules. See also M.R.C.P. 77(a).  * * *

¶ 14. Certainly, the chancellor possesses the authority to order temporary alimony and make all proper orders and judgments thereon. Miss.Code Ann. § 93-5-17(2); M.R.C.P. 77(a); see also Langdon v. Langdon, 854 So.2d 485, 496(¶ 44) (Miss.Ct.App.2003). The duty to pay temporary support terminates upon entry of the final judgment of divorce, but the judgment does not eliminate the obligation to pay temporary alimony arrearages which accrued before the entry of the final decree. Prescott v. Prescott, 736 So.2d 409, 416(¶ 35) (Miss.Ct.App.1999) (citing Lewis v. Lewis, 586 So.2d 740, 741 (Miss.1991)). Stated differently, a temporary order is not a final order; however, arrearages accrue on unpaid temporary support payments. Id. Further, temporary support orders are enforceable through contempt actions. [McCardle v.] McCardle, 862 So.2d at 1292(¶ 9); see also Bell on Mississippi Family Law § 9.01[5][c], at 236 (2005). 

In this district, more often than not in more complicated cases I render a detailed opinion making findings of fact and conclusions of law, and I direct one of the attorneys to draft a judgment corresponding to the opinion, with instructions to present it to the court after it has been approved as to form by counsel opposite. Every now and then, a judgment will be delayed for one reason or another. McCarrell addresses what happens to the relief granted in that situation.


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.


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).


July 6, 2011 § 3 Comments

It sometimes happens that the chancellor grants some of the relief requested, saying in effect, “That’s all I’m going to do,” and directs entry of a final judgment.  It happens, for instance, where one party asks for an award of attorney’s fees and the court does not want to grant it, or where one party in a divorce wants the living room furniture that the other party has and the judge leaves things as they are. You can conjure up some similar scenarios.

The question is: when the judge does that, is there a final, appealable judgment?

The COA addressed what is not a final, appealable judgment in two recent decisions handed down the same day.

In Jackson v. Lowe, decided June 28, 2011, the COA answered the question by reference to MRCP 54(b), which states:

When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment 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 the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

In Jackson, the court held that since the chacellor’s decision did not address several issues and did not certify that it was a final judgment as to the issues adjudicated, it was an interlocutory judgment that was not appealable, and until the parties saw to it that all issues had been addressed, there was no jurisdiction for an appeal. 

A similar result was reached in S.E.B. v. R.E.B. decided June 28, 2011, in which the chancellor flatly refused to adjudicate alimony and child support.

What the COA is telling you is that unless the trial court’s judgment addresses every claim, or unless you have a Rule 54(b) certificate from the trial judge, you are going nowhere on appeal until you do.

I posted here about some of the nuances of Rule 54(b), and you might want to take a look at the post again.

I have almost always included a paragraph in my judgments that states to the effect that “The court has considered all other issues and prayers for relief asserted by the parties and finds that they should be denied and no further relief granted.” I do not know whether that will suffice as an adjudication, and after the S.E.B. decision, I’m not so sure; no one has ever raised the issue. Of course, I use that only for miscellaneous issues that do not have trial factors because failure to address applicable trial factors is reversible error. I also have included a Rule 52(b) certificate in appropriate cases.

Moral of the story: If you are not satisfied that the chancellor has met the requirements of Rule 52(b), be sure to file the proper motion for a certificate, and do it timely. If you are outside the 10-day requirement of Rule 59, you might want to file a motion to set the remaining issues for trial. Yes, this will likely steam up your judge, who probably figured your case was concluded, but just smile and show her a copy of Jackson v. Lowe, and maybe everything will be all right.      

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