March 21, 2017 § 3 Comments
Many moons ago, in another district, a chancellor ruled from the bench at the conclusion of a contested case in which I represented one of the parties. He directed the attorney on the other side to prepare a judgment for his signature, which she did. She presented it directly to him without any input from me, which is contrary to our long-standing practice in my home district.
When I received a copy of the judgment, I was shocked to see several provisions in it, favorable to the other party, that were never mentioned by the judge in his ruling from the bench. I immediately fired off a R59 motion asking the court to retract those offending parts of the judgment.
At our next encounter, the judge read my motion, removed his reading glasses, looked me in the eye, and said, “Son, are you saying that I didn’t bother to read my own judgment?” I stammered out a denial as graciously as I could. “It’s my judgment, no matter who prepared it, and it said exactly what I thought it should say.” That concluded my business for the day, and I exited, pondering what had just transpired on my 40-mile drive back to my office.
Chancellors such as I, who either rule from the bench or issue written opinions, and direct a lawyer to prepare a judgment, often hear similar complaints. The bottom line, though, is that there is no requirement for the final judgment or order to mirror exactly what the judge ruled.
The COA confronted a similar argument in the case of Guardianship of McPhail: McPhail and Portera v. McPhail, handed down February 28, 2017. Judge Barnes wrote for a unanimous court (Judge Greenlee not participating):
¶11. “The Mississippi Supreme Court has held that ‘a chancellor’s bench ruling is not final, but is subject to modification by that same chancellor.'” Hinson v. Hinson, 877 So.2d 547, 548 (¶5) (Miss. Ct. App. 2004) (quoting Grey v. Grey, 638 So.2d 488, 492 (Miss. 1994)).
The Grey case is directly on point. Hinson cites Grey, but was actually a case in which the COA rejected the appeal because only a bench ruling had been entered, with no corresponding judgment, and, since a bench ruling is subject to revision by the judge and is not final, there was no final, appealable judgment.
All of this is to say that, so long as the judgment or order conforms to and is within the pleadings and the proof, it matters not whether a particular provision of the judgment or order was explicitly addressed in the bench ruling or opinion.