A Procedural Peculiarity

June 11, 2015 § Leave a comment

We’ve talked here many times about the R54(b) principle that, if the judgment disposes of fewer than all of the issues, it is not a final, appealable judgment unless the judge certifies so in the manner prescribed by the rule. We’ve sounded that theme so often that I’m not going to add links in this post. You can search them for yourself, if you care to.

It’s that principle that has me scratching my head over the COA case Wood, et al. v. Miller, decided June 2, 2015.

Donna Smith and Audrey Kemp filed a complaint in chancery court in 2004 to quiet and confirm title, to determine heirship, and to partition some 261 acres of land that had descended via heirship and devise to the parties named in the suit. They filed an amended complaint in 2007.

Following a hearing in 2009, the chancellor entered a judgment quieting and confirming title and ordering partition. The commissioners some time in 2010 filed a report detailing how the property could be divided into three shares.

In October, 2010, the defendants filed a separate pleading in the same civil action seeking to obtain title of all the property by adverse possession. The pleading was not styled as a counterclaim.

In May, 2012, the chancellor entered a judgment confirming the commissioners’ report, and ordered that the petitioners would have one share, the respondents another share, and another group of heirs the third share.

Afterward the plaintiffs filed a pleading asking for a judgment for waste based on the defendants’ refusal to allow the land to be rented during the litigation. At the hearing on that pleading, the question arose about the pending adverse-possession claim that had never been addressed. The attorney for the defendants announced that he would schedule a hearing on the matter at a later date. He never did. The chancellor entered judgment against the defendants for waste for more than $90,000.

The defendants appealed, raising only two issues: (1) that the chancellor erred when she ruled that two of the petitioners had inherited Thornton Miller’s interest in the property through the will of Thornton’s widow, Magnolia; and (2) that they had adversely possessed the property. They did not otherwise contest the heirship determination, the partition, or the judgment for waste. It does not appear from the opinion that they raised any issue as to the original judgment quieting and confirming title.

In its opinion, the COA, by Judge Roberts, pointed out, quite accurately, that any issue of invalidity of Magnolia’s will had not been raised before the chancellor; nor could it, because MCA 91-7-23 requires such claims be brought within two years of probate of the contested will, and not later. Magnolia’s will had been probated in 1986, so the claim as to the will’s invalidity was untimely and barred by the statute. On those grounds, then, the COA refused to review the issue on appeal.

This was unquestionably the right conclusion as to issue (1).

As for the adverse possession claim, issue (2), the court concluded that, since it had never been presented to the chancellor for review, the issue was not properly before it, and refused to entertain this issue also.

With this issue, I have this question: since the judgment of the trial court disposed of fewer than all of the issues, should the COA have accepted jurisdiction over the appeal in the first place? R54(b) provides:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, 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 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 of 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 entry of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

Since the adverse possession issue is still pending as a claim in this case, was there a final, appealable judgment, or should the COA have rejected jurisdiction? Well, no matter, I think that the COA reached the proper conclusion because:

  • You can not adversely possess against co-owners. The determination of heirship resolved the issue of Magnolia’s bequest and ownership, making all of the parties co-owners. Even if the matter had been properly presented at hearing to the chancellor, it did not state a claim upon which relief could be granted.
  • Any adverse possession claim should have been presented as a compulsory counterclaim to the claim to quiet and confirm, per R13. The reason for the rule is to prevent the very thing that was attempted in this case.
  • The chancery court’s order quieting and confirming disposed of any adverse possession claims.
  • This matter was pending in the trial court for nine years. If you haven’t demanded a hearing on your claims you should not have the right to ask or demand that the court deal with it later. You’re already late enough.

In other words, the outcome would not have changed. Just to be clear … I agree with the court’s ruling in this case. I just thought it presented a peculiar set of issues and procedures that would be of some interest.


A Rule 54(b) Dismissal With a Twist

June 3, 2014 § Leave a comment

We’ve talked here numerous times about the unappealability of a judgment that disposes than fewer than all of the issues pending before the court. If you type “54(b)” in that search box over there it will take you to the many posts on the subject.

The COA case of Newson v. Newson, handed down May 13, 2014, presents a scenario that just might apply in one of your cases, so you should take notice.

In May, 2011, the chancellor entered a judgment granting Lori Newson a divorce from her husband, Anthony, on the ground of adultery. On that day, Anthony’s attorney advised the court that his client had filed for bankruptcy, so the judge reserved ruling on alimony and equitable distribution until the status of the bankruptcy was clarified. 

In March, 2012, the chancellor gave the parties the go-ahead to proceed. In August, 2012, the parties submitted a partial agreement, and the court made a partial ruling. The court stated that “the responsibility of the indebtedness of the respective parties, spousal support/alimony, attorney’s fees and/or costs owed by the parties would be reserved for a final hearing. Apparently there was another hearing, because in October, 2012, the court entered an order styled or referred to as a final order, granting Lori periodic alimony, and finding that Anthony was in arrears in the sum of more than $64,000 in alimony, for which he was in contempt. The judge left the record open for Lori’s attorney to present a statement of services rendered so that he could adjudicate attorney’s fees. Anthony filed a motion asking the court to reconsider (R59, I guess, since there is no such thing as a motion for reconsideration), which the court overruled. Anthony appealed.

The COA predictably ruled that, since the chancellor had left the record open without finally adjudicating the issue of attorney’s fees, and without certifying the case, the COA was without jurisdiction and dismissed the appeal.

Now, here’s the twist …

Quite often lawyers ask the court to combine into the final hearing the contempt issues that accrue during the pendency of a divorce. It’s not unusual for the court in such a situation to adjudicate finally all of the divorce issues — grounds, custody, child support, equitable distribution, alimony, attorney’s fees on the divorce — and then to treat the contempt issues. In addressing the contempt issues, the court many times will order that the contemnor do certain things to purge himself of contempt, and for the matter to be reviewed at a later date. Sometimes there is a second or even a third review hearing. In such a case, you are stuck with an unappealable divorce judgment until the trial judge finally adjudicates everything.

Unless …

  • You file a R59 motion (within ten days of the original judgment) asking the court to add the “express determination that there is no just reason for delay,” per R 54(b), and directing entry of a final judgment on the issues of divorce, custody, equitable distribution, alimony, attorney’s fees on the divorce, leaving the contempt issues to take their own, separate course. Or …
  • You could make a motion at the conclusion of your case that the issues be severed, and that the court make the R54(b) certification to be included in the final judgment.

Of course, you could ask the court not to combine the contempt issues in with the final divorce hearing in the first place, but most clients want the hourly billing and the courtroom time to end, so it’s usually more efficient from a time and law-weariness standpoint to get it all over with in one hearing.    

This is one of those situations where you need to pay attention to where you are and how you got there. Once you realize you are faced with a judgment that may not be appealable for quite some time, you need to take steps to extricate your client from that bind.

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.

A Proper MRCP 54(b) Certification

February 11, 2014 § Leave a comment

In February, 1969, John Whitehead, Jr., executed a will naming his wife, Marie, and their four sons at the time, each mentioned by name, as his beneficiaries. The will set up a family trust to support Marie for her life, and then to support the named sons until each reached age 30, at which time each would receive his share of the corpus.

There were two subsequent codicils to the will. There were also two after-born children, one legitimate and one illegitimate.

The will and codicils were admitted to probate, and Jonathan, the illegitimate son, filed a declaratory judgment action in the estate proceeding asking the court to declare that he was a residuary beneficiary because the trust failed.

The chancellor granted summary judgment in favor of the estate, adding a R54(b) certification of finality, finding that there was “no just cause for delay.”

The COA took the case and affirmed in Whitehead v. Estate of Whitehead, rendered September 24, 2013.

This case illustrates what I consider to be an ideal situation for application of R54(b). The judge’s ruling disposed of all of Jonathan’s issues in the estate. The declaratory judgment action was essentially put to an end by the R56 summary judgment, so there was no sense in making Jonathan await the closing of the estate, which may take some considerably longer time, before he could take his appeal. The R54(b) ruling had the added advantage that, if the COA reversed, Jonathan could possibly return to the chancery court to participate in the ongoing administration of the estate.

I’ve posted here many times about cases rejected by our appellate courts due to no or improper R54(b) certification. Reading the R54(b) decisions, it appears that oftentimes it is unclear whether the case is a proper one for its application. This case was pretty clear.

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?


Yet Another Interment in the MRCP 54(b) Graveyard

November 13, 2013 § 5 Comments

The newest appeal to be interred in the MRCP 54(b) graveyard is In re Heirship of Gardner: Young, et al v. Pollion, et al., decided by the COA on November 5, 2013.

The petitioners sought to reopen the estate of Albert Gardner, who died in 1924, to determine his heirs. At stake were claims of the petitioners to oil, gas, and mineral royalties. The claimants were putative children of Albert Clayborne, a descendent of Albert Gardner, who died in 1998 with no adjudication of his heirship until the instant action.

The chancellor heard proof and rendered a 50-page opinion adjudicating certain persons to be heirs, and denying claims of others.

Here’s what Judge Fair’s opinion said on this now-utterly-familiar topic:

¶8. Under Rule 54(b), a trial judge “may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties” in an action. M.R.C.P. 54(b). But the judge may do so “only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment.” Id. And absent a Rule 54(b) certification, any judgment – regardless of how designated – is not final if it “adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties.” Id.; see also M.R.C.P. 54(b) cmt.

¶9. Rule 54(b) does not require that a judgment be entered when the court disposes of one or more claims or terminates the action as to one or more parties. “Rather, it gives the court discretion to enter a final judgment in these circumstances and it provides much needed certainty in determining when a final and appealable judgment has been entered. If the court chooses to enter such a final order, it must do so in a definite, unmistakable manner.” M.R.C.P. 54(b) cmt. Here, the chancellor did not indicate that the order was a final judgment or provide any Rule 54(b) certification. The fifty-page order contains many gaps regarding Albert Gardner’s descendants and their spouses, as recognized by the chancellor:

IT IS, FURTHER, ORDERED AND ADJUDGED that the aforementioned determination of heirs are subject to any spouse who survived said heirs who was not made a party to this litigation.

Whether Albert Clayborne’s mother and his grandfather survived their spouses is undetermined in the order. Further, the record shows that the order appealed from has been amended since the Appellants filed their appeal with this Court. We therefore conclude that these heirship proceedings are not final, even as to the Appellants, as they are still subject to further changes and amendments.

¶10. Without a certification under Rule 54(b), “any order in a multiple party or multiple claim action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory.” M.R.C.P. 54(b) cmt; see also Owens v. Nasco Int’l., Inc., 744 So. 2d 772, 774 (¶8) (Miss. 1999). Further, the Appellants neither sought nor received permission under Rule 5 of the Mississippi Rules of Appellate Procedure to proceed with an interlocutory appeal of this nonfinal judgment. An appellate court, on its own initiative, may dismiss an appeal for the absence of a Rule 54(b) certification. Miller v. R.B. Wall Oil, Co., Inc., 850 So. 2d 101, 103 (¶5) (Miss. Ct. App. 2002). Therefore, we dismiss for lack of jurisdiction.

R.I.P. yet another appeal.

Every time I see one of these cases, I think that I am seeing the very last in a long line of dead appeals. Yet, the supply appears to be unendless. We need a bigger graveyard.


Two Birds with One MRCP 54(b) Stone

August 5, 2013 § Leave a comment

You’ve read here over and over that when the chancellor adjudicates fewer than all of the pending issues in a case, no direct appeal can be taken unless the judge certifies under MRCP 54(b) that there is no just reason to delay an appeal. In the absence of such a certification, the unhappy party’s only recourse is to file a petition with the MSSC for an interlocutory appeal.

The legal landscape is littered with the wreckage of appeals that unsuccessfully ignored the gravitational pull of R54(b), only to come crashing back to where they started.

The latest example — with a twist — is Estate of Drake: Drake v. Drake, decided by the COA July 30, 2013.

Benjamin Lee Drake sued his uncle, Bennie Larry Drake, alleging that Bennie Larry had unduly influenced Benjamin Lee’s father, before the father’s death, to change the beneficiary of his life insurance policy from Benjamin Lee to Bennie Larry, and to convey a parcel of land to him. Benjamin Lee asked the court to set aside both the change in beneficiary and the land conveyance.

In the course of the litigation, the chancellor dismissed the life insurance relief for failure of Benjamin Lee to file his complaint within three years of discovery of his uncle’s fraudulent conduct, as required in MCA 15-1-49 and 15-1-67.

The chancellor left the real property issue pending, which meant that he had resolved fewer than all of the pending issues. He did it with no MRCP 54(b) certification, and he made it clear on the record that his ruling was not final. Nonetheless, he told Benjamin Lee that, if he “wish[ed] to take an interlocutory appeal,” the “same was granted.”

Now here is where things get a tad peculiar.

Benjamin Lee did file a petition for an interlocutory appeal under MRAP 5. But he did not stop there. He also filed a separate, general notice of appeal under MRAP 4. So he had two simultaneous appeals from the same judgment.

As is the norm, the MRAP 4 case was assigned to the COA, and the MSSC kept the MRAP 5 case.

I’ll let the COA tell us what transpired from there:

¶6. “[F]ind[ing] that [Benjamin Lee] filed a notice of appeal from the same trial order,” the supreme court dismissed his separate petition for permission for an interlocutory appeal under Rule 5. At that point, recognizing the other appeal—the Rule 4 non-interlocutory appeal—was not from a final order, Bennie Larry filed two motions to dismiss the general appeal. But the supreme court denied these motions as “not well taken.”

¶7. The appeal has since been assigned to this court. But since the order under review  is—as Judge Grant and both parties acknowledge—non-final, we lack jurisdiction to grant  an interlocutory appeal and must dismiss. See Lundquist [v. Todd Constr., LLC], 75 So. 3d [606] at 608 [(Miss. 2006)](¶12).

Ergo … Presto Changeo, and … Voila! … two appeals are magically transformed into zero appeals. And the appellant is right back where he started.


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.


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.


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.

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