When an Untimely Post-Trial Motion Results in a Timely Appeal

September 17, 2019 § Leave a comment

If you file a motion for a new trial later than ten days after the judgment is entered and the other side does not object, allowing the judge to rule on the motion, does your motion for a new trial toll the time to appeal?

Yes, said the COA in the case of Brown v. Blue Cane Water Assoc., et al., decided June 4, 2019. This is how Judge McDonald’s opinion addressed the issue:

¶21. Although the parties do not raise the issue, this Court must first determine that it has jurisdiction to consider this appeal. Hamilton v. Southwire Co., 191 So. 3d 1275, 1279 (¶15) (Miss. Ct. App. 2016); Gallagher v. City of Waveland, 182 So. 3d 471, 474 (¶13) (Miss. Ct. App. 2015). After reviewing when the final judgment, the motion for a new trial, and the notice of appeal were filed and recent precedent, we determine that we do have jurisdiction to consider the merits of the issues on appeal. In the past, we had strictly enforced the time limits for filing appeals in cases where post-trial motions are not timely filed. But these rules have been relaxed.

¶22. Mississippi Rule of Appellate Procedure 4(a) states that “the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within thirty days after the date of entry of the judgment or order appealed from.” M.R.A.P 4(a). Certain post-trial motions will toll this thirty-day deadline, including a motion for a new trial filed under Mississippi Rule of Civil Procedure 59. (The law had once provided that the extension of time to appeal operates only if the post-trial motion itself is timely filed. Brand v. Barr, 980 So. 2d 965, 962 (¶¶10-11) (Miss. Ct. App. 2008).) Under Rule 59(e), motions for a new trial must be filed within ten (10) days of the judgment. Moreover, a paper is not “filed” until the clerk actually receives it. Bolton v. Illinois Cent. R.R. Co., 218 So. 3d 311, 313 (¶8) (Miss. Ct. App. 2017). In Byrd v. Biloxi Regional Medical Center, 722 So. 2d 166, 168-69 (¶12) (Miss. Ct. App. 1998), we held that “an untimely filed Motion for Reconsideration will not excuse an untimely Notice of Appeal, and clearly will not create or confer jurisdiction in this court.”

¶23. The Mississippi Supreme Court relaxed this strict enforcement in Wilburn v. Wilburn, 991 So. 2d 1185 (Miss. 2008). In that case, the chancery court issued its modification order on June 1, 2007. Wilburn, 991 So. 2d at 1191 (¶12). Counting weekends, the response was due on June 11, 2007. Id. The ex-wife filed a “Motion for Reconsideration” one day later on June 12, 2007. Id. The motion was denied and timely appealed. Id. at 1190 (¶8). The Mississippi Supreme Court applied established precedent and found that the motion for reconsideration was untimely. But the Court further found that because the husband did not object to the timeliness of the motion when it was before the chancery court, he was procedurally barred from raising the issue for the first time on appeal. Id. at 1191 (¶13). The Court proceeded to consider the appeal on its merits. Id. at 1192 (¶14).

¶24. We recently applied Wilburn in Massey v. Oasis Health & Rehab of Yazoo City LLC, No. 2017-CA-00086-COA, 2018 WL 4204207 (Miss. Ct. App. Sept. 4, 2018). In Massey the circuit court granted a motion to compel arbitration on November 9, 2016. Id. at *4 (¶11). Massey filed a motion to alter or amend the judgment under Rule 59 on November 22, 2016—one day late. Id. at *5 (¶16). Massey’s motion was denied and appealed within thirty days of the denial. Id. at (¶17). We reviewed prior cases that dealt with the timeliness of an appeal when a motion for new trial or reconsideration was not timely filed in the court below. Id. We noted the Mississippi Supreme Court’s ruling in Wilburn v. Wilburn, supra,
which created an exception to the bar of hearing an appeal if the timeliness of a post-trial Rule 59 motion is not challenged before the trial court. Id. at *6 (¶18). Following these precedents in Massey, we held:

Here, just as in Wilburn, Massey filed his Rule 59 motion one day too late, and Oasis responded to the motion on the merits—without objecting to the motion as untimely. After the circuit court denied Massey’s Rule 59 motion, Massey filed a notice of appeal. Just as in Wilburn, Massey filed his notice of appeal within thirty days of the order denying his Rule 59 motion, but more than sixty days after entry of the underlying order. As to the issue of appellate jurisdiction, there is no material difference between this case and Wilburn. Under Wilburn, we have jurisdiction to address the appeal and the merits of the underlying order compelling arbitration.

Massey, 2018 WL 4204207, at *6 (¶20). The special concurrence in Massey noted a similar holding found in Carter v. Carter, 204 So. 3d 747 (Miss. 2016), that the lack of an objection to an untimely Rule 59 motion procedurally bars an appellee from raising the issue of timeliness on appeal. Massey, 2018 WL 4204208, at *15 (¶59) (Greenlee, J., specially concurring). The concurrence pointed out that the Carter decision cited federal case law, saying:

Our supreme court seems to recognize, as the United States Supreme Court did in Bowles, [Fn 4] that “procedural rules adopted by the Court for the orderly transaction of its business are not jurisdictional and can be relaxed by the Court in the exercise of its discretion . . . .” Bowles, 551 U.S. at 212, (quoting Schacht v. United States, 398 U.S. 58, 64 (1970)). New Mississippi ground is being broken. . . .

Massey, 2018 WL 4204207, at *15 (¶61) (Greenlee, J., specially concurring).

[Fn 4] Bowles v. Russell, 551 U.S. 205 (2007)

¶25. In this case, the final judgment was signed on December 15, 2017, and filed with the clerk on December 18, 2017. The Browns had ten days to file their motion for a new trial (i.e., December 28, 2017). Browns’ counsel indicated in his certificate of service that he served the motion on Blue Cane’s counsel by mail on December 27, 2017 (a Thursday). But the clerk did not file the motion until January 3, 2018, which was seven days later and sixteen days after the judgment was filed.

¶26. Blue Cane responded to the motion for a new trial but did not challenge its untimely filing. On January 23, 2018, the chancery court denied the motion for a new trial in an order filed with the clerk on January 26, 2018. A notice of appeal was filed on February 2, 2018. Both Wilburn and Massey are directly on point. Although the Browns’ Rule 59 motion was not timely, Blue Cane did not object. Pursuant to Massey and Wilburn, we find that we do have jurisdiction to proceed to a ruling on the merits.

Two thoughts:

  • “A paper is not filed until the clerk actually receives it.” Crucial point. In paper-filing districts, the motion is not filed until the clerk enters it on the docket, per MRCP 79(a). Mailing it to the clerk, or even handing it to the clerk, does not accomplish this. MEC overcomes this problem.
  • Sometimes we go along in order to get along. Your pal, hunting buddy, and fellow church member, who happens to be opposing counsel, approaches you and says, “Man, I screwed up and filed that R59 motion a day late; I hope you’ll give me a pass on that so I won’t look bad.” You could say “<wink> <wink> Sure, pal, no problem, I know you’d do the same for me.” But it would be more in line with your professional responsibility to your client to say, “I hate that for you, but I have to object to timeliness to protect my client; I hope you understand.”

AN OBJECT LESSON IN HOW NOT TO HANDLE A GUARDIANSHIP

March 26, 2012 § 6 Comments

I try not to comment on pending litigation, but the ongoing saga of attorney (for the moment) Michael J. Brown of Jackson bears mentioning here as an object lesson for all of you who handle guardianship — and any other fiduciary — matters.

To catch you up … Mr. Brown opened a guardianship for Demon McClinton, a child who had inherited $3 million from his mother, Rebecca Henry. Ms. Henry was the daughter of late Mississippi civil rights icon Aaron Henry. Attorney Brown never opened a guardianship account, depositing the funds instead in his trust account. To make a long, sordid story short, the funds were bled dry by unauthorized disbursements, extremely questionable “investments,” so-called “loans” — including “loans to himself — and outragous attorney’s fees. You can read a recap of the special master’s report here.

Brown’s misconduct drew the attention of Chancellor Dewayne Thomas. Brown at first claimed that the file, which he had checked out of the clerk’s office, had been destroyed when a pipe burst at his office. This proved to be a perjurious lie when the Special Master, acting pursuant to a search warrant, found the file in the attic of Brown’s home in a box marked “McClinton.”

At a show-cause hearing, Brown tried to assert that his schemes had been approved verbally by a preceding chancellor. Of course, Chancellor Thomas rejected that claim and ordered Brown to limit himself to to what was of record, which clearly established that none of Brown’s many transactions had been approved by any chancellor. Brown testified that there were no funds actually missing because he had accounted for every unauthorized expenditure, “loan,” “investment” and other impropriety. In other words, they aren’t missing because we know their whereabouts.

Chancellor Thomas has ordered the soon-to-be erstwhile lawyer jailed, subject to $250,000 bond, until he restores the missing funds. You can read more about Mr. Brown’s epic mishandling of this case on Philip Thomas’s blog, which includes links to other articles on the subject. An article that includes Judge Thomas’s order is here.

Several years ago I ordered a lawyer and guardian to show cause why they should not be sanctioned for mishandling guardianship funds to the tune of $45,000. The lawyer had handed the settlement check to the guardian, allowed the guardian to go by himself to open a restricted guardianship account, but the guardian deposited the funds instead in his own credit union account. No accountings were filed for several years, even after my predecessor, and then I, ordered that they be done. The lawyer at the hearing disclaimed any responsibility, shucking all the blame off on the guardian. I did not buy it. UCCR 6.01 and 6.02, and MCA § 93-7-253, along with practically all of the Rules of Professional Responsibility, persuade me to the contrary. The lawyer has a duty to the court to ensure that the fiduciary is faithful in carrying out his responsibilities.

Let me restate that: The lawyer has an ethical and professional duty to the court to ensure that the fiduciary is faithful in carrying out his responsibilities.

As the chancellor is the superior guardian of the ward, the lawyer is the arm and officer of the court, charged with the professional responsibility to act as the court’s agent to make sure that the fiduciary is acting solely in the best interest of and for benefit of the ward.

For the umpteenth time, I urge you to pull every fiduciary file you have right now and start poring through them to make sure that every detail is in order. There should be no discrepancies, no questionable transactions, no unapproved withdrawals. Your accountings should be annual, with proper vouchers. If Mr. Brown’s experience still does not shake you out of your lethargy, re-read this post about the hair-raising Matthews v. Williams case. If you’re not willing to strap on the high level of responsibility and vigilance required in fiduciary matters, defer the case to an attorney who will.

As Phillip Thomas so eloquently put it on his blog:

“Any lawyer who has ever walked past the chancery courthouse knows that Brown’s story is complete and total B.S. Chancellors are sticklers for the rules and they want guardianship funds locked up tight. The suggestion that any chancellor would verbally approve bogus sounding investments and loans is preposterous, as is every other detail of Brown’s story. It is beyond preposterous.” [Emphasis in italics added by me]

If you’re not the altruistic type, or you don’t buy into the idealistic concepts of professional responsibility, then look to your own self interest and tighten up your fiduciary practice. It could save you a load of money — and possibly your license to practice law.

YET MORE ON MANDATORY PRO BONO

September 27, 2010 § 3 Comments

The only thing I am hearing on mandatory pro bono (MPB) from lawyers in east Mississippi is stony silence.  You would think that a measure with so many ramifications for lawyers, particularly small-town lawyers of which we have many, would provoke a major reaction.

Meanwhile, down the board, you will find an earlier post and some insightful comments from lawyers in other parts of the state on the subject, the latest from John Gillis in Water Valley, who makes some points that deserve your consideration. 

Although I think Mr. Gillis and others make some valid and even persuasive points, I do disagree with their argument that MPB constitutes a form of involuntary servitude.  In my opinion, that argument is is based on a business-model view of the legal profession, a view that is incomplete and incorrect.  The law is a profession and not a business.  Lawyers have a duty to the administration of justice. 

The Preamble to the Rules of Professional Conduct states:  “A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”  [Emphasis added]  It goes on to say:  “As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession … A lawyer should be mindful of deficiencies in the administration of justice and the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.  Therefore all lawyers should devote professional time and resources and use civil influence to ensure equal access to our system of justice for all who, because of economic or social barriers, cannot afford or secure adequate legal counsel.”  [Emphasis added]     

Mr. Gillis is perhaps too young to remember the days when all lawyers were subject to that infamous telephone call from the Circuit Judge to come defend an indigent prisoner.  That practice persisted until counties began hiring public defenders to do the job.  Back then I did not know a single attorney who refused the judge on the ground that the requirement was a form of Marxism (as Mr. Gillis characterizes it).  Those of us who were fairly competent accepted the burden as an obligation of the profession, not always gladly I assure you, but always with the understanding that it was our professional responsibility. 

I also do not understand the significance of the point that no other state has MPB.  How does that matter?

As for the other arguments, I think they are sound and need to be considered.  I am not sold on the idea of MPB, although I do lean toward it as a solution to a major problem facing the courts and the bar. 

It does seem to me that two things are necessary before a final decision is made on MPB:  First, much more study needs to be done; and second, many more lawyers’ voices’ need to be heard.  The silence on the subject is baffling to me.

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