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.
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?
February 6, 2013 § Leave a comment
In Estate of Ristroph v. Ristroph, handed down by the COA on December 4, 2012, we confront yet again the mantra that an appeal from a judgment that disposes of fewer than all of the issues before the trial court, and which does not include a certification under MRCP 54(b), will be dismissed. In this case, the principle lands home with a triple whammy.
As you may recall, I’ve described MRCP 54(b) here as the “Graveyard of Appeals.” That’s because of the rule’s requirement that, if the trial judge directs entry of a judgment as to fewer than all of the issues, he or she must include a finding that there is no just reason for delay, and directing entry of a final, appealable judgment as to the issues decided. The trial judge’s certification must have a reasonable basis and must not be an abuse of discretion. If the judgment lacks the certification, the appellate court will lack jurisdiction because an appeal lies only from a final judgment (MRAP 5 does provide for an interlocutory appeal to the MSSC, but that is discretionary with that court, and these comments pertain to non-interlocutory appeals).
Undaunted by the express requirements of MRCP 54(b) and the ever-growing body of case law strictly applying it, lawyers continue to file appeals from judgments disposing of fewer than all of the issues, apparently drawn to the appellate process like moths to a flame — with similarly self-immolatory results.
In Ristroph, John Ristroph filed a pleading in his father’s estate to set aside a deed from his father to his brother Paul. He filed a separate pleading challenging certain inter vivos gifts from his father to Paul. Both pleadings alleged undue influence.
The chancellor dismissed the challenge to the deed based on statute of limitations.
John then filed a motion for rehearing pursuant to MRCP 59. Before the chancellor could rule on John’s motion, however, Paul, having once struck paydirt with his statute-of-limitations argument, filed a motion for summary judgment claiming that John’s inter vivos gifts claims were also time-barred.
The chancellor entered an order overruling John’s MRCP 59 motion for rehearing, and John appealed. <STRIKE ONE>
While the appeal was pending, John filed a motion under MRCP 60 asserting a new argument based on lack of consideration.
The chancellor then overruled John’s MRCP 60 motion, as well as Paul’s motion for summary judgment. John filed yet another an appeal from this latest adversity. <STRIKE TWO>
The MSSC bundled John’s two appeals together and sent them downstairs to the COA, where they landed with a thump on the desk of Judge Maxwell, who astutely pointed out that the chancellor was not yet through with the case at the trial level because the claims as to the inter vivos gifts remained unresolved. Ergo, no jurisdiction. <STRIKE THREE — YER OUT>
From where I sit — reading an appellate judge’s interpretation of a cold record — I find it hard to grasp why and how attorneys are filing appeals from less-than-fully-dispositive judgments without a R54(b) certification. Here we had not one, but two, untimely appeals in the same case. That may be some kind of record. John’s counsel on appeal does get a “Z” for zealously representing his client, I guess, but still, two untimely appeals (strikes one and two) and a dismissal (strike three). That’s got to smart a little.