The Better Chancery Practice Blog

We are talking about judgments this week, a timely subject in view of the Supreme Court’s decision in In Re:  Barbara Dunn, Hinds County Circuit Clerk, decided last Thursday.

The Dunn case arises out of two other interlocutory appeals in which the defendants were adversely affected by judgments, but were not given notice of entry of those judgments as required by MRCP Rule 77(d), which requires the Circuit and Chancery Clerk to serve notice of entry of orders on all parties not in default.  The specific language of the rule is as follows:

(d)  Notice of Orders or Judgments.  Immediately upon the entry of an order or judgment the clek shall serve a notice of the entry in the manner provided for in Rule 5 upon each party who is not in default for failure to appear, and shall make a note in the docket of the service.  Any party may in addition serve a notice of such entry in the manner provided in Rule 5 for service of papers.  Lack of notice of the entry by the clerk does not affect the time for appeal, nor relieve, nor authorize the court to relieve, a party for failure to appeal, within the time allowed, except as permitted by the Mississippi Rules of Appellate Procedure.

In Dunn, the clerk failed to give notice that the trial judge had ruled on motions for summary judgment.   

As the Supreme court pointed out, the omission was serious and impacted substantive and procedural rights.  The opinion stated:

The seriousness of this omission is such that this Court should not, and it will not, regard it as an innocuous clerical error.  The notices required by Rule 77(d) are mandatory, and they are indispensable to the right of parties to receive timely information from our state trial courts concerning significant judicial actions in civil matters in litigation. 

Since this was Ms. Dunn’s third appearance before the Supreme Court on the same issue, the court assessed her with a $5,000 fine. 

In my experience as a practitioner and as a judge, I know of only one district where Rule 77(d) notices are routinely sent out, and it is not the Twelfth District.  On one occasion some years ago, I learned by pure happenstance that the court had entered a final judgment in my case 24 days before, leaving me only six days to confer with my client and decide whether we would appeal.   

MRAP 4(h) gives some relief, providing as it does that the trial court may reopen and extend the time for appeal on a finding that a party entitled to MRCP 77(d) notice did not receive it.  The MRAP rule, however, does have time parameters within which one must operate.

 The court’s strict stance on application of procedural rules in this case is reminiscent of the court’s ruling in Illinois Central railroad Co. v. Moore, about which I previously posted here.  It would appear that if your case on appeal turns on a procedural issue, you will have the uphill climb with this court if you did not dot every “i” and cross every “t.” 

Some intriguing questions remain in the aftermath of Dunn.  Are routine procedural orders and agreed orders included?  In Rule 81 cases, there is no default since no answer is required; what is the rule’s application to Rule 81 matters?  What are the practical ramifications for practitioners, since the rule explicitly does not relieve any party from operation of an order or judgment for failure of a clerk to give notice of entry? 

As a practitioner, when you have a particularly important order or judgment, you should avail yourself of that provision in Rule 77 whereby you can give notice yourself and have it noted on the docket.

You can read more about the case at Philip Thomas’s blog MS Litigation Review & Commentary.