Dunn v. Dunn, 2002-CA-00283-SCT.

• Decision Date: 12 June 2003
• Docket Number: No. 2002-CA-00283-SCT.,2002-CA-00283-SCT.
• Citation: 853 So.2d 1150
• Parties: Todd W. DUNN v. Judy H. DUNN.
• Court: Mississippi Supreme Court

853 So.2d 1150

Todd W. DUNN v. Judy H. DUNN.

No. 2002-CA-00283-SCT.

Supreme Court of Mississippi.

June 12, 2003.

Rehearing Denied September 18, 2003.

David Michael Brisolara, attorney for appellant.

Dolton W. McAlpin, Starkville, attorney for appellee.

EN BANC.

WALLER, Justice, for the Court:

¶ 1. The Oktibbeha County Chancery Court reformed a certain real estate deed in favor of Judy H. Dunn and against Todd W. Dunn. The chancery court also ordered Judy to pay $42,973.57, an amount owed pursuant to a mortgage on the real estate, to the Merchants & Farmers Bank in Starkville. Judy made the payment after the final judgment was entered in the chancery court, resulting in this fact not being a matter of record on appeal. Todd appealed to this Court, which reversed and rendered.¹ This ruling's effect was that Todd was never divested of the title. Judy then filed, in the chancery court, a motion for restitution and other relief against Todd to recover the $42,973.57 paid by her to satisfy the debt against the real estate. Todd responded, alleging that the issue of restitution had been raised before and ruled upon by this Court. Therefore, he argued, res judicata prevented Judy from relitigating the issue. The chancery court, rejecting Todd's argument, and noting that Judy made the payment under court order, granted Judy's motion for restitution. Todd appeals, arguing that allowing Judy to proceed in chancery court after this Court has reversed and rendered, flies in the face of the principle of finality of judgments. He claims that the issue was before the Court on appeal because the order that was appealed both reformed the deed and ordered Judy to pay the funds to the bank. Because Judy did not present her claim for restitution to this Court by way of a cross-appeal, Todd argues that Judy's only recourse would have been to file a motion for rehearing under M.R.A.P. 40. Because she failed to do so, she is procedurally barred from proceeding in the chancery court.

¶ 2. We find that the issues of Judy's payment and Todd's unjust enrichment were not raised in the first appeal, are not barred by res judicata, and therefore were properly brought before the chancery court by way of motion for restitution.

DISCUSSION

I. WHETHER JUDY IS BARRED FROM PROCEEDING ON A MOTION FOR RESTITUTION IN CHANCERY COURT WHEN SHE FAILED TO FILE A CROSS-APPEAL IN # 2000-CA-00714-SCT.

¶ 3. We have never addressed the issue of when a party must file a cross-appeal. We therefore review authority from other jurisdictions.

¶ 4. Michigan courts have held, "Generally, the failure to file a cross appeal precludes the appellee from raising an issue not raised by appellant." Hajj v. Roat, 2002 WL 571785 *1 (Mich.Ct.App.2002) (citing Kosmyna v. Botsford Cmty. Hosp., 238 Mich.App. 694, 607 N.W.2d 134 (1999)). However, "[w]hile a cross appeal is necessary to obtain a decision more favorable than that rendered by the lower tribunal, it is not necessary to urge an alternative ground for affirmance, even if the trial court considered and rejected that alternative ground." Hajj, 2002 WL 571785 at *1 (citing In re Herbach, 230 Mich.App. 276, 583 N.W.2d 541 (1998)); see also Kosmyna, 607 N.W.2d at 136.

¶ 5. Likewise, Arizona courts have held that "[a] party may not appeal from any portion of a judgment that does not aggrieve it." Larkin v. State ex rel. Rottas, 175 Ariz. 417, 857 P.2d 1271, 1279 (Ct.App. 1993) (citing State v. O'Connor, 171 Ariz. 19, 827 P.2d 480, 485 (Ct.App.1992)).

¶ 6. Our own Court of Appeals has recently held that "[i]n order for the appellee to gain reversal of any part of the decision of a trial court about which the appellant brings no complaint, the appellee is required to file a cross-appeal." Delta Chem. & Petroleum, Inc. v. Citizens Bank of Byhalia, Miss., 790 So.2d 862, 878 (Miss.Ct.App.2001).

¶ 7. The State of Ohio has adopted an appellate rule of procedure which states as follows:

3(C)(1): Cross appeal required. A person who intends to defend a judgment or order against an appeal taken by an appellant and who also seeks to change the judgment or order or, in event the judgment or order may be reversed or modified, an interlocutory ruling merged into the judgment or order, shall file a notice of cross appeal within the time allowed by App.R. 4.

3(C)(2): Cross appeal not required. A person who intends to defend a judgment or order appealed by an appellant on a ground other than that relied on by the trial court but who does not seek to change the judgment or order is not required to file a notice of cross appeal.

Ohio App. R. 3(C)(1).

¶ 8. Following this precedent, we conclude that an appellee should not be required to file a cross-appeal unless he or she is aggrieved by the trial court's judgment. Because Judy won a favorable judgment in the chancery court, her position on appeal was to have this Court affirm the judgment. She did not seek to alter or reverse the judgment below. Therefore, she was not required to raise any issues on cross-appeal. Also, the issue of unjust enrichment did not ripen until this Court entered its judgment.

II. WHETHER JUDY IS BARRED FROM PROCEEDING ON A MOTION FOR RESTITUTION IN CHANCERY COURT WHEN SHE FAILED TO FILE A MOTION FOR REHEARING IN # 2000-CA-00714-SCT.

¶ 9. Under M.R.A.P. 40,² motions for rehearing are properly brought when the court has overlooked or misapprehended points of law or fact. Here, the Court did not overlook or misapprehend any points of law or fact because the issue of restitution was not raised in the first appeal. As stated above, the issue of restitution did not ripen until this Court entered its judgment.

¶ 10. If no motion for rehearing is filed within fourteen days of the entry of the appellate court's judgment, see M.R.A.P. 40(a), the judgment becomes res judicata. This is so even where the issue was not raised during appeal and the appellate court did not consider it on the merits. It is axiomatic that res judicata prevents the parties from relitigating all issues tried in the prior lawsuit, as well as all matters which should have been litigated and decided in the prior suit. Dunaway v. W.H. Hopper & Assocs., Inc., 422 So.2d 749, 751 (Miss.1982).

¶ 11. We find that the issue of restitution could not have been raised before the Court in a motion for rehearing because there was absolutely no evidence in that record concerning any actions by the parties in response to that part of the judgment which ordered Judy to pay the bank. Because Judy's payment to the bank in accordance with the chancery court's order was not in the record, the issue of restitution was not a proper basis for a motion for rehearing. The only thing Judy could do was what she did: she went back to the chancery court via a motion for restitution, made a record that the payment was remitted, and, in light of this Court's ruling, asked for restitution. This Court could not have reviewed the issue of restitution until a record showing the payment was before the Court. Therefore, res judicata does not apply to the issue of restitution.

III. WHETHER TODD WAS UNJUSTLY ENRICHED.

¶ 12. The equitable principle of unjust enrichment clearly applies to the facts at hand. Judy paid the bank with the understanding that she had title to the property. When she was divested of title, Todd, the owner, got the property back debt-free as Judy had paid off his indebtedness. Todd is not entitled to profit from Judy's payment. See, e.g., Milliken & Michaels, Inc. v. Fred Netterville Lumber Co., 676 So.2d 266, 269 (Miss.1996). In Milliken, the Court quoted at length from Bessler Movable Stairway Co. v. Bank of Leakesville, 140 Miss. 537, 106 So. 445 (1925), as follows:

Money paid to another by mistake of fact, although such mistake may have been caused by payor's negligence, may be recovered from the person to whom it was paid, in an action for money had and received. The ground on which recovery is allowed is that one receiving money paid to him by mistake should not be allowed to enrich himself at the expense of the party who paid the money to him by retaining it, but in equity and good conscience should refund it. In order that this rule may apply, the party to whom the payment mistake was made must be left in the same situation after he refunds it as he would have been left had the payment not been made.

Milliken, 676 So.2d at 269 (citations omitted). See also U.S.F. & G. Co. v. Newell, 505 So.2d 284 (Miss.1987). Even though the money was not paid directly to Todd, he benefitted from the payment of the money. In equity and good conscience, Todd should have refunded the money to Judy without the necessity of further legal or equitable action. Therefore, the chancery court did not err in ordering restitution.

CONCLUSION

¶ 13. Because Judy could not have raised the issue of restitution in the first appeal, res judicata does not apply to her claim. Todd was undoubtedly unjustly enriched by Judy's payment. We therefore affirm the chancery court's judgment granting Judy's motion for restitution.

¶ 14. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., COBB, DIAZ, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. EASLEY, J., NOT PARTICIPATING.

McRAE, Presiding Justice, Dissenting:

¶ 15. The majority erroneously finds that Judy was not required to file a mandatory cross appeal in the original action and that she is not barred by res judicata from re-litigating issues which were decided in the original action. Judy had ample opportunity to litigate her claim and could have utilized the Rules of Appellate Procedure to correct or modify the record in the original appeal to reflect her payment of the loans. Judy's failure to file a mandatory cross-appeal, motion for rehearing, and/or motion to correct or amend mandate amounts to a procedural bar for review. Furthermore, res judicata most certainly applies under the circumstances of this case since it was the same subject...