December 12, 2016 § Leave a comment
Andrea and Thomas Taylor went to chancery court in a dispute over college-education language in the PSA that accompanied their 2003 divorce. Andrea took the position that it did not address college education tuition and expenses for their son, Austin. Thomas claimed that the agreement did address the issue, and he sued Andrea for contempt, demanding that she contribute to the more than $70,000 that Austin had incurred as student loans pursuing a commercial aviation degree at Delta State.
The chancellor did find that the PSA obligated both parents to contribute equally to their son’s college education expenses, and he found that those expenses totalled $61,136. He then ordered each party to pay $30,568 toward the judgment.
Here is where things get a little weird. The chancellor rendered the judgment not in favor of Thomas, and certainly not in favor of Andrea. The chancellor awarded the judgment to Austin, who was not a party; no one had requested that relief.
In Taylor v. Taylor, handed down October 6, 2016, the MSSC affirmed. Here is the entire discussion from Justice Maxwell’s opinion:
¶6. “It is a long-established rule in this state that a question not raised in the trial court will not be considered on appeal.” Adams v. Bd. of Supervisors of Union Cty., 177 Miss. 403, 170 So. 684, 685 (1936) (citations omitted); see also Pierce v. Pierce, 132 So. 3d 553, 567 (¶ 37) (Miss. 2014) (citing McNeese v. McNeese 119 So. 3d 264, 267 (Miss. 2013)); In re Adoption of Minor Child, 931 So. 2d 566, 579 (¶ 36) (Miss. 2006) (citing Chantey Music Pub., Inc. v. Malaco, Inc., 915 So. 2d 1052, 1060 (Miss. 2005)); and Burnham v. Burnham, 185 So. 3d 358, 361 (¶ 10) (Miss. 2015) (citing Mills v. Nichols, 467 So. 2d 924, 931 (Miss. 1985)). Here, neither party challenged or objected to proceeding on Austin’s tuition and school expenses, or to the chancellor’s interpreting the underlying property settlement agreement from the couple’s 2003 divorce. Furthermore, after confronting the tuition and expenses issue, Andrea’s attorney asked several questions about the chancellor’s decision and allocation of the judgment. He even offered to prepare the order from which Andrea appeals. So both parties acquiesced in the manner in which the chancellor decided this matter. Because Andrea neither challenged nor objected to the chancellor’s authority to grant an award to her son at trial or in post-trial motions, this issue is forfeited and barred from our appellate review. [My emphasis]
Justice King dissented, joined by Randolph, on the basis that Austin was a necessary and indispensable party who should have been joined. That argument, though, presents a kind of a chicken-or-egg conundrum. The majority obviously went with the chicken (or is that the egg?).
In the course of a chancery bench trial, every issue presented and heard by the court serves as a basis for appeal, with or without a post-trial motion, assuming you timely object to unfavorable rulings. You do not even need to file a post-trial motion when the judge rules against you on the merits within the bounds of the relief prayed for.
BUT … when the chancellor reaches out beyond the scope of the pleadings and proof at trial and acts as the chancellor did here, you must preserve the issue for appeal by making a timely objection. So, how doe you do that?
You file a timely R59 motion not later than ten days after the date of entry of the judgment. Andrea could have done that, pointing out to the judge that it was error to award the judgment in favor of Austin, since he was not a party, and that the judge’s action was beyond the scope of relief sought by either party. By not giving the chancellor an opportunity to address her objections she waived them and lost her right of appellate review.
February 25, 2014 § 3 Comments
James Loftin was notified that his contract for employment as school superintendent would not be renewed, and he filed a request with the chancery court for a hearing, as provided in MCA 37-9-101 through -113.
On April 16, 2012, Loftin filed a public records request with the school district.
The non-renewal hearing went forward on April 27, 2012, despite a pre-hearing motion that Loftin had filed asking that it be delayed so that his public records request could be addressed. On July 12, 2012, the judge ruled that Loftin had waived the public records request because he had allowed the hearing to go forward. The ruling on the non-renewal was not in his favor.
Loftin filed a motion for reconsideration [you can read another post at this link on whether there is such a creature in Mississippi procedure] on July 24, twelve days after the court’s ruling.
On October 24, 2012, more than 100 days after the final ruling on the merits, the court overruled the motion for reconsideration, and Loftin filed his notice of appeal on November 2, 2012.
In the COA case of Loftin v. Jefferson Davis County School District, handed down February 18, 2014, the court affirmed the chancellor’s denial of the motion to reconsider. Judge Fair, for the majority, explained:
¶4. “A timely-filed notice of appeal is a jurisdictional prerequisite to invoking [appellate] review, and we review jurisdictional matters de novo.” Calvert v. Griggs, 992 So. 2d 627, 631 (¶9) (Miss. 2008). “[T]he time to file a notice of appeal is a jurisdictional issue that cannot be waived by the parties.” Dawson v. Burt Steel Inc., 986 So. 2d 1051, 1052 (¶5) (Miss. Ct. App. 2008).
¶5. At issue is what effect Loftin’s motion for reconsideration had on the timeliness of his notice of appeal. Motions for reconsideration are filed every day in Mississippi, but the Mississippi Rules of Civil Procedure do not specifically provide for them. McBride v. McBride, 110 So. 3d 356, 359 (¶15) (Miss. Ct. App. 2013). This Court recently summarized how they should be treated:
The Mississippi Rules of Civil Procedure provide two avenues to move the trial court to reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to alter or amend under Rule 59 or (2) file for a relief from a final judgment under Rule 60(b). The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b) motion.
A motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion. Consequently, a notice of appeal following the denial of a Rule 59 motion to reconsider encompasses both the denial of reconsideration and the underlying judgment.
But a motion to reconsider filed more than ten days after the entry of the judgment falls under Rule 60(b). And a Rule 60(b) motion does not toll the thirty-day time period to file a notice of appeal. So a notice of appeal following the denial of a Rule 60(b) motion to reconsider limits this court’s review to whether reconsideration was properly denied under Rule 60(b). This court has no jurisdiction to consider the merits of the underlying judgment.
Woods v. Victory Mktg. LLC, 111 So. 3d 1234, 1236-37 (¶¶6-8) (Miss. Ct. App. 2013) (citations omitted). The last day for Loftin to file his motion for reconsideration under Rule 59 was Monday, July 23, 2012. See M.R.C.P. 6(a). Loftin’s motion, filed on July 24, must be taken under Rule 60(b).
¶6. Rule 60(b) provides six bases for relieving a party from a final judgment:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.
Loftin’s motion for reconsideration makes none of those arguments. Instead, it simply contends that the petition should not have been dismissed under the facts and the controlling substantive law. Loftin obviously intended the motion to be considered under Rule 59(e), but because it was untimely, that ship has sailed. “An appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” Bruce v. Bruce, 587 So. 2d 898, 903-04 (Miss. 1991). Instead, “Rule 60(b) is for extraordinary circumstances, for matters collateral to the merits, and affords a much narrower range of relief than Rule 59(e).” Id. at 903. “Rule 60(b) motions should not be used to relitigate cases.” S. Healthcare Servs. Inc. v. Lloyd’s of London, 110 So. 3d 735, 742 (¶16) (Miss. 2013). Nor is a Rule 60(b) motion a substitute for a timely appeal. Id. at (¶14).
¶7. Loftin is not entitled to relief from judgment under Rule 60(b). We therefore affirm the trial court’s judgment denying Loftin’s motion for reconsideration.
A R59 motion for a new trial or rehearing will stop the appeal deadline from running, but it must be filed within ten days of entry of the judgment.
- A R60 motion does not stop the running of the appeal deadline.
- Even if you style your motion as a R59 motion and ask for R59 relief, if you file it more than ten days after entry of the judgment, it will be treated as a R60 motion.
- If you ask for relief under R60, you should spell out exactly what provisions of R60 you are invoking.
- Remember that, as between R59 and R60(b), only a R59 motion will allow the appellate court to review the merits of the underlying judgment. An appeal from denial of a R60(b) motion limits the appellate court to a review of the denial of the R60(b) motion only.
August 1, 2013 § 3 Comments
It’s fairly common in this court in a complicated case for me to issue an opinion in a case and direct that one of the attorneys prepare a judgment corresponding with it. The opinion is is issued on one date, and the judgment, as a result, is entered perhaps two weeks later.
It’s also fairly common for a lawyer, once the opinion has been issued, to file an MRCP 59 motion for rehearing in the interval between issuance of the opinion and entry of the judgment.
It does make a difference when you file your post-trial motion. A motion filed within 10 days of entry of the judgment is treated as a R59 motion, and one filed later than 10 days is treated as a R60 motion. City of Jackson v. Jackson Oaks Limited Partnership, 792 So.2d 983, 985 (Miss. 2001). Since the subject matter that may be addressed under each rule is markedly different, you can see that it makes quite a difference when your motion is filed.
So how is the court to treat your motion if you file it even before a judgment is entered? Is your motion a nullity?
The COA addressed the issue in Street v. Street, 936 So.2d 1002 (Miss. App. 2006), where the court stated:
¶ 16. The timing of post-trial motions under Rule 59(a) and Rule 59(e) is the same; such motions must be made “not later than ten days after the entry of judgment.” M.R.C.P. 59(b); 59(e). Both Stephen’s Rule 59(e) motion for reconsideration and his Rule 59(a) motion for a new trial were filed after the chancellor’s bench opinion but before the final judgment was entered. Carla argues that Stephen’s motion for reconsideration was untimely under Rule 59(e) because it was filed before the final judgment was entered rather than within ten days after the entry of the final judgment. For that reason, she contends that the motion should not have been considered by the chancellor.
¶ 17. It appears that the question of whether a Rule 59(e) motion is timely if filed before the entry of a final judgment is one of first impression in Mississippi. However, “[t]he Mississippi Rules of Civil Procedure are patterned after the Federal Rules of Civil Procedure, and we have looked to the federal interpretations of our state counterparts as persuasive authority.” Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1215(¶ 32) (Miss.2001). Federal authority is settled that a Rule 59 motion is timely though filed after the court makes findings of fact but before the entry of a final judgment. See 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 2812 at 82 n. 44 (1973).
¶ 18. As previously stated, the timing of a Rule 59(e) motion to alter or amend a judgment and a Rule 59(a) motion for a new trial is identical; both motions must be made “not later than ten days after the entry of judgment.” M.R.C.P. 59(b); 59(e). In Hilst v. Bowen, 874 F.2d 725, 726 (10th Cir.1989), the Tenth Circuit observed that “courts and commentators generally agree that this ten-day limit sets only a maximum period and does not preclude a party from making a Rule 59 motion before a formal judgment has been entered.” The Hilst court found that the appellant’s motion for reconsideration was timely though made after the lower court rendered a memorandum and order but before the court entered a final judgment. Id. In concluding that a motion for a new trial filed before entry of judgment was timely, the Fifth Circuit stated that “[the] language [of Rule 59(b) ] does not explicitly require that a motion for new trial be made after judgment is entered, and it has not been interpreted to include this requirement.” Greater Houston Ch. of the ACLU v. Eckels, 755 F.2d 426, 427 (5th Cir.1985); see also McCulloch Motors Corp. v. Oregon Saw Chain Corp., 245 F.Supp. 851, 853 (S.D.Cal.1963) (finding that, by the rule’s use of the words “shall” and “not later than,” the ten days after the entry of judgment established an outside, not an inside, limit for the timing of a motion for a new trial). Based on this authority, we find that Stephen’s Rule 59(e) motion was timely filed after the chancellor’s rendition of her bench opinion, though before the final judgment was entered.
Street was cited in the later case of Gary v. Gary, 84 So.3d 836 (Miss. App. 2012):
¶ 12. Because Michael filed his motion to reconsider five days before the November 29, 2010 entry of the nunc pro tunc order, this court considers his motion for reconsideration as a motion for new hearing or, alternatively, to amend or alter the judgment under Rule 59. M.R.C.P. 59(a), (e) (requiring both motion for new trial and a motion to alter or amend the judgment “be filed not later than ten days after entry of the judgment”); see Street v. Street, 936 So.2d 1002, 1008 (¶ 17) (Miss.Ct.App.2006) (finding a motion to alter the judgment filed after the court made findings of fact but before the entry of a final judgment was timely under Rule 59).
Thanks to attorney David L. Calder of the Child Advocacy Clinic at the University of Mississippi School of Law
March 13, 2013 § 3 Comments
In Forbes v. St. Martin, et al., handed down March 5, 2013, from the COA, the appellants’ first issue on appeal was “Whether the chancellor erred in denying the post-judgment motion of the [appellant] pursuant to MRCP 59.” Judge Griffis, for the majority, said:
¶15. There is actually only one issue in this appeal — whether it was error to grant the summary judgment. A chancellor’s judgment is final and appealable, and there is no requirement that a post-judgment motion be filed to perfect an appeal from chancery court.
¶16. In chancery court, a Rule 59(a) motion may be filed: (i) “for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi,” or (ii) for a new trial so “the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.” A Rule 59(e) motion would allow the chancellor to “alter or amend the judgment.”
¶17. Forbes’s brief contends that the chancellor erred in the denial of the motion for reconsideration. “[A] motion to set aside or reconsider an order granting summary judgment will be treated as a motion under Rule 59(e).” Brooks v. Roberts, 882 So. 2d 229, 233 (¶15) (Miss. 2004) (citation omitted). “[T]he movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.” Id. (citation omitted). A chancellor’s decision to deny a Rule 59 motion is reviewed for abuse of discretion. Brooks, 882 So. 2d at 233 (¶15). Forbes has offered no argument that the chancellor abused his discretion in the denial of the motion for reconsideration. Accordingly, we find no error as to the second issue, and we only consider whether it was proper for the chancellor to grant a summary judgment as to all claims. [Emphasis added]
I’ve made the assertion here before that an MRCP 59 motion is not required as a prerequisite to an appeal in a chancery court proceeding where the case was tried to the judge. A case tried to the judge without a jury does not require such a motion. That is the opposite of the rule when a jury has rendered a verdict in circuit and county courts; in those cases a motion for a directed verdict or JNOV under MRCP 50 would be required as a prerequisite to appeal.
The language above is also a good survey of what must be shown to get relief under R59.
October 12, 2011 § 3 Comments
On October 11, 2011, the COA in Aspired Custom Homes, LLC v. Todd and Tina Melton, there is this language by Judge Carlton, at ¶ 11:
While Aspired appeals the judgment of the chancery court questioning the judgment’s substance, we acknowledge the record reflects the chancellor denied a timely filed post-trial motion brought by Aspired pursuant to Rule 59(e) — a motion to alter or amend judgment. See M.R.C.P. 59. Aspired filed a motion pursuant to Rule 59(e) and raised four issues before the chancellor. However, a party is not required to file a post-trial motion in chancery court in order to appeal the chancery court’s judgment. We therefore address the merits of the appeal before us, questioning the substance of the chancellor’s judgment. [Emphasis added]
In a footnote to that paragraph, the opinion stated:
If a party’s motion for reconsideration is served within ten days of the rendition of judgment, the motion falls under Rule 59(e) of the Mississippi Rules of Civil Procedure. Carlisle v. Allen, 40 So. 3d 1252, 1260 (¶33) (Miss. 2010) (citing Cannon v. Cannon, 571 So. 2d 976, 978 (Miss. 1990)). The Mississippi Supreme Court has established that to succeed on a Rule 59(e) motion, “the movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.” Brooks v. Roberts, 882 So. 2d 229, 233 (¶15) (Miss. 2004). Case law has also provided that “[a]n appeal from a denial of a Rule 59 motion may address the merits of the entire underlying proceeding, and review of a trial judge’s denial of a Rule 59 motion is limited to abuse of discretion.” Perkins v. Perkins, 787 So. 2d 1256, 1261 (¶9) (Miss. 2001). In this case, the notice of appeal reflects only an appeal by Aspired from the judgment of the chancellor, with no reference to the unsuccessful post-trial motion.
That, in my opinion, is an accurate statement of what Mississippi law has been in chancery bench trials, and I’m glad to see it clearly stated.
So, based on the language above, a post-trial motion is not a prerequisite to an appeal from a chancery bench trial. But the question remains whether a post-trial motion is necessary to preserve particular issues for appeal, as the COA case cited in the prior post would indicate. Here’s some language that may remove all doubt:
“It is clearly the better practice to include all potential assignments of error in a motion for new trial. However, this approach is not always practical. Because a trial transcript is rarely available within the time frame for filing post-trial motions, the most prudent attorney cannot be expected to pinpoint every objection raised and ruling made during the course of the trial. Thus, when the assignment of error is based on an issue which has been decided by the trial court and duly recorded in the court reporter’s transcript, such as the admission or omission of evidence, we may consider it regardless of whether it was raised in the motion for new trial. [Emphasis added] Kiddy v. Lipscomb, 628 So. 2d 1355, 1359 (Miss. 1993).
Thanks to Thus Blogged Anderson for the Kiddy v. Lipscomb cite .
March 23, 2011 § 3 Comments
I’ve posted here about the necessity to file post-trial motions to preserve error in chancery court, and how the COA’s January 25, 2011, decision in Robinson v. Brown may have changed our traditional practice. Then the COA stayed the mandate and we awaited a new decision.
The new Robinson v. Brown opinion was issued yesterday, March 22, 2011, and in my judgment we are back exactly where we started: You’d better file those post-trial motions if you expect to raise an issue on appeal.
Although the new opinion actually addresses and analyzes the sufficiency of the chancellor’s findings, the court states at ¶ 23 that, “In this case, we likewise find the challenge of the chancellor’s findings in the instant case procedurally barred.” The two cases cited in support of the point are distinguishable both on their facts and their procedural posture, but no matter. The COA is determined to interpret MRCP 52(b) in its own way.
I have other fish to fry, so I don’t really have the time or energy to devote to breaking this down further. Besides, I am out of the appeal business. It’s lawyers like you who have to deal with this.
If the supreme court will take this case on cert and look closely at it, perhaps our supreme chancellor, Justice Pierce, will be afforded the opportunity to elucidate this for us. If I were still practicing law in chancery court I would certainly want the point clarified for the sake of my clients and my malpractice insurance premiums.
In the meantime, I stand by my earlier suggestion to file those post-trial motions raising every conceivable point possible that you may wish to raise on appeal. If you don’t you may find yourself “procedurally barred” in the COA.
February 16, 2011 § 4 Comments
The COA case of Robinson v. Brown, handed down January 25, was the subject of a previous post in which I alerted chancery lawyers that the case appeared to change the law that post-trial motions were not required in chancery court to preserve error for appeal. I also pointed out that MRCP 52(b) specifically excepts non-jury trials from the post-trial motion requirement.
In the COA’s handdowns on February 15, this entry appeared:
Mary Elizabeth Brown Robinson v. Paul Arthur Brown
Lee Chancery Court; LC Case #: 02-0518(41)H; Ruling Date: 08/06/2009; Ruling Judge: John Hatcher; Disposition: The Court on its own motion stays the mandate and grants rehearing. Order entered.
Is the COA going to circle back to where we were pre-January 25? Stay tuned.
January 27, 2011 § 9 Comments
Back on November 16, 2010, I posted here that you don’t have to file a motion for a new trial in chancery non-jury trials to preserve error for an appeal. As I pointed out, it has never been the law in chancery court that such a motion was necessary, and MRCP 52(b) would appear to dispose of the issue. I do believe that was an accurate statement of the law in chancery court.
Until Tuesday, January 25, 2011.
On that date, the court of appeals handed down its decision in Robinson v. Brown, in which the appellant attempted to argue that it was error for the chancellor to assess her with child support because she claimed that he had failed to make the appropriate findings of fact. Justice Carlton’s opinion, to which there was no dissent, holds at ¶ 18 that the appellant:
” … failed to assert this alleged error post trial to the chancellor, and such failure waived her right to now complain as to this issue on appeal. Mississippi Rule of Civil Procedure 52 allows the court to amend its findings, or make additional findings, upon motion of a party filed not later than ten days after the entry of a judgment or entry of findings and conclusions of law. Watts v. State, 492 So.2d 1281, 1291 (Miss. 1986) (appellant was procedurally barred from raising an issue on appeal where he failed to raise it in his post-trial motion).”
The only case cited to support the point is a criminal case from circuit court, presumably from a jury trial.
The opinion does not mention MRCP 52(b), which specifically states:
When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised regardless of whether the party raising the question has made in court an objection to such findings or has filed a motion to amend them or a motion for judgment or a motion for a new trial.
Would that exact language not apply in this case since the appellant was complaining that the trial court’s ruling was not supported by sufficient evidence? And, as with nearly all chancery court cases, this was a case “tried by the court without a jury.”
The lone justice with chancery experience on the court of appeals, Justice Myers, is listed as “not participating.”
Practice Tip: For chancery practitioners, I believe that this decision means that from now on you had better file a post-trial motion in every case if you have any thought of an appeal, and you’d better list every error you think might be in the record.
For chancellors, this will mean an abundance more work, on top of the lengthy opinions we are required to write to pass scrutiny of the appellate courts.
There’s a lot I could say about this, but I guess I’d better not. If you want my views, drop by my office and we’ll talk.