Roberts v. Grafe Auto Co., Inc., 92-TS-0045
| Decision Date | 21 July 1994 |
| Docket Number | No. 92-TS-0045,92-TS-0045 |
| Citation | 653 So.2d 250 |
| Parties | Phyllis ROBERTS, Appellant, v. GRAFE AUTO COMPANY, INC., Rene Clark and Sherrie Clark, Appellees. |
| Court | Mississippi Supreme Court |
Wayne E. Ferrell, Jr., Karla J. Pierce, Ferrell & Hubbard, Jackson, Margaret Ellis, Kitchens & Ellis, Pascagoula, for appellant.
James Compton, Raymond Carter, Compton Crowell & Hewitt, Biloxi, W. Lee Watt, Brown & Watt, Pascagoula, for appellee.
This matter came before the Court en banc on Roberts' motion for relief from this Court's order which dismissed her appeal. We grant Roberts' motion and allow the appeal. For the reasons stated in this Order, we find that the appeal should be reinstated on the docket of this Court and that appellate proceedings in this action should resume.
The Mississippi Supreme Court Rules do not expressly authorize Roberts to file her Amended Motion For Out-Of-Time Appeal Or, Alternatively, For Relief From Order, however, under the particular facts of this case we suspend the Rules of this Court because Roberts has shown "other good cause," as those words are used in Miss.Sup.Ct.R. 2(c), why this Court should suspend its Rules and hear her motion on the merits.
A panel of this Court entered an order on October 15, 1992, which dismissed the appeal, Roberts filed her "Petition For Rehearing And To Reinstate Appeal," and a panel of this Court entered an order on April 1, 1993, which denied the Petition. Thereafter, Roberts filed her "Amended Motion For Out-Of-Time Appeal Or, Alternatively, For Relief From Order." Roberts seeks relief from the orders dismissing her appeal and denying her Petition For Rehearing. Sitting en banc, we vacate and set aside the two orders of this Court which were entered on October 15, 1992, and April 1, 1993.
We hold that the three printed form documents styled "JURY VERDICT FOR DEFENDANT" and dated November 21, 1991, were not final judgments and therefore were not appealable to this Court. M.R.C.P. 77(d) states that "[i]mmediately upon the entry of an order or judgment the clerk shall serve a notice of the entry in the manner provided for in Rule 5 upon each party ... and shall make a note in the docket of the service." The clerk of the trial court did not notify Roberts of the existence or entry of the "JURY VERDICT FOR DEFENDANT." The "JURY VERDICT FOR DEFENDANT" forms do not contain the word "Judgment". The document labelled "JUDGMENT" and dated December 5, 1991, was the only final judgment which was entered in this action and which was appealable to this Court. Roberts filed her notice of appeal within 30 days of the disposition of the post-trial motions and has timely perfected her appeal to this Court. The jury verdict forms were not final judgments from which Roberts could appeal. Even assuming arguendo that the forms could be construed to be final judgments, Roberts was never notified of their existence, and her right to due process would protect her from losing her right to appeal since she was not aware of the jury verdict forms and was not notified of their existence. The forms were not in the court file, were not entered on the docket and were presented to the judge ex parte. Roberts' counsel asserts that he made a reasonable search and inquiry in order to determine if a judgment had been filed and was advised by the clerk of the trial court that no judgment had been filed.
In City of Gulfport v. Saxton, 437 So.2d 1215 (Miss.1983) Justice Robertson speaking for a unanimous Court stated:
Parties to an appellate proceeding may reasonably expect notification from the court or its clerk when a ruling is made. We know of no appellate court which requires that parties police the docket and fail to do so at their peril. [The parties] had every reasonable expectation that each would be notified by the court when a decision on the appeal has been made. In this context, it would be intolerable to subject [a party] to prejudice and the loss of the rights he has subsequently won because he took no action.... Such a result would smack of a violation of due process.
Id. at 1217. (Emphasis added). The jury verdict forms were not delivered by the clerk of the trial court to Roberts' counsel, were not on the general docket of the court, and were not in the court file. Counsel for Roberts made a reasonable effort to determine if a final judgment had been entered. Roberts did not know that the jury verdict forms had been received by the clerk. The clerk of the trial court apparently did not consider the "JURY VERDICT FOR DEFENDANT" to constitute a final judgment because it did not serve a copy of the form document upon the attorneys as required by M.R.C.P. 77(d). The trial court did not consider the "JURY VERDICT FOR DEFENDANT" to constitute a final judgment because it later signed a "JUDGMENT" dated December 5, 1991.
Under the particular facts of this case the "JURY VERDICT FOR DEFENDANT" was not a final judgment which started the appeal time to run and was not intended to be a final judgment.
The trial court failed to make any findings of fact or conclusions of law regarding whether the "JURY VERDICT FOR DEFENDANT" constituted a final judgment and therefore we decide this issue because the trial court failed to do so.
Roberts has submitted a certified copy of the general docket, which does not contain an entry for the printed form documents labelled "JURY VERDICT FOR DEFENDANT." The documents labelled "JURY VERDICT FOR DEFENDANT" were not recorded in the docket book as required by M.R.C.P. 79(a) and were not placed in the court file of the trial court. We find that the due process clause of Mississippi's Constitution requires that this appeal must be reinstated. See Miss. Const. of 1890, art. 3, Secs. 14, 24; Williams v. State, 456 So.2d 1042 (Miss.1984); and this Court's order entered on March 24, 1994, which amended M.R.C.P. 58 effective July 1, 1994; although the amendment does not affect the case at bar, it is at least noteworthy. The order amended M.R.C.P. 58 to read as follows:
Every judgment shall be set forth on a separate document which bears the title of Judgment. A judgment shall be effective only when so set forth and when entered as provided in M.R.C.P. 79(a).
THEREFORE, IT IS ORDERED that Roberts' Amended Motion For Out-Of-Time Appeal Or, Alternatively, For Relief From Order, be, and hereby is, granted, that this action is reinstated on the docket of this Court, that the notice of appeal in this action was timely filed, and that appellate proceedings shall resume.
IT IS FURTHER ORDERED that Grafe's Motion To Strike Appellant's Amended Motion For Out-Of-Time Appeal be, and hereby is, denied.
IT IS FURTHER ORDERED that Renee And Sherrie Clark's Motion To Strike Appellant Roberts' Amended Motion For Out-Of-Time Appeal Or, Alternatively, For Relief From Order be, and hereby is, denied.
Appellant's Response To Motions To Strike Appellant's Amended Motion For Out-Of-Time Appeal Or, Alternatively, For Relief From Order be, and hereby is, granted.
IT IS FURTHER ORDERED that Renee And Sherrie Clark's Motion For Leave To File Reply To Appellant's Response To Motions To Strike Appellant's Amended Motion For Out-Of-Time Appeal Or, Alternatively, For Relief From Order be, and hereby is, granted.
SO ORDERED.
McRAE, J., does not participate.
This Court dismissed Roberts' appeal on October 15, 1992, for failure to file a timely notice of appeal, and denied Roberts' petition for rehearing to reinstate appeal on April 1, 1993. Roberts then filed an amended motion for an out-of-time appeal or, alternatively, for relief from the order denying her petition for rehearing. Because there is no procedure for this third attempt at an out-of-time appeal and because this Court has twice decided this issue adversely to Roberts, I must dissent to this Court's reversal of its two former rulings.
The reasoning set forth and relied upon in this Court's order of October 1992 is as correct and compelling today as it was two years ago:
Accordingly, in order for a judgment to be final and appealable, there must be a writing which is "the final determination of an action and thus has the effect of terminating the litigation," signed by the court, delivered to the clerk (filed) and entered by the clerk ("the ministerial notation of the judgment by the clerk of the court pursuant to Rule 58").
In the case sub judice, there were hand-written jury verdicts representing the final determination in the action, which...
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