Tandy Electronics, Inc. v. Fletcher, 07-59562
| Decision Date | 29 November 1989 |
| Docket Number | No. 07-59562,07-59562 |
| Citation | 554 So.2d 308 |
| Parties | TANDY ELECTRONICS, INC. d/b/a Tandy Computer Leasing v. Wayne A. FLETCHER d/b/a Wayne A. Fletcher Accounting. |
| Court | Mississippi Supreme Court |
Glen W. Hall, Jackson, for appellant.
L. O'Neal Williams, Jr., Poplarville, for appellee.
ON MOTION TO DOCKET AND DISMISS APPEAL
En Banc.
This case is before the Court on Appellee's motion to docket and dismiss. Appellant, Tandy Electronics, Inc., filed its notice of appeal one day late and the question is whether there are any credible or valid grounds on which we should decline to dismiss Tandy's appeal.
On April 29, 1986, Tandy Electronics filed suit in the Circuit Court of Pearl River County against Wayne A. Fletcher Accounting seeking recovery of a balance due under a lease of computer equipment. On May 20, 1988, the case was heard and the jury returned a verdict for Tandy in the amount of $4,588.00 plus reasonable attorney's fees. After the jury was discharged, a judgment was entered on May 20, 1988, which included an award of attorney's fees in the sum of $1,376.00. This was far less than Tandy had sued for. Tandy filed no post-trial motions but did file its Notice of Appeal on June 21, 1988, thirty-two (32) days after entry of judgment.
The following chronology reflects what happened:
Trial and Jury Verdict May 12, 1988
Negotiations for settlement May 17, 1988
Settlement offer rejected and Appellant's Attorney drafted order May 19, 1988
containing judgment
Judgment signed by Judge and entered May 20, 1988
Notice of Appeal prepared June 16, 1988
Notice of Appeal mailed June 20, 1988
Notice of Appeal received and filed in Circuit Clerk's office June 21, 1988
Thirty days ended on Sunday, June 19, 1988. According to a combined reading of Rules 4 and 26, Miss.Sup.Ct. Rules, Tandy had to file by the end of June 20, 1988. Tandy's notice was filed one day late.
Tandy has since filed a Motion to File an Appeal Out-of-Time, which has been treated for purposes of this motion as a response to Fletcher's Motion to Dismiss Appeal. Tandy admits that its attorney failed to comply with the thirty-day requirement, and did file its Notice of Appeal one day late. Exactly why the notice was filed June 21 but not on June 20 we are not told. Apparently, Tandy has failed to avail itself of Mississippi Supreme Court Rule 4(g) which allows the trial court to extend the time for filing a notice of appeal upon the showing of excusable neglect. Unfortunately Rule 4(g) would not be of any help to Tandy at this point in time.
At least four of our rules are implicated. We begin with Rule 4(a), Miss.Sup.Ct. Rules which, in relevant part, reads:
(a) Appeals and Cross-Appeals in Civil and Criminal Cases. In a civil or criminal case in which an appeal or cross-appeal is permitted by law as of right from a trial court to this Court the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.
This rule uses the word "filed" rather than "served" and thus means that the notice must actually be received in the office of the trial court clerk within the thirty day time frame. Rule 26(a) then provides in relevant part:
(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of this Court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a legal holiday, or any other day when the clerk's office is in fact closed, whether with or without legal authority, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, a legal holiday or any other day when the clerk's office is closed.
June 20, 1988, was a Monday.
Rule 2 provides in relevant part:
(a) Dismissal of Appeal.
(1) Mandatory Dismissal. An appeal shall be dismissed if the notice of appeal was not timely filed pursuant to Rule 4 or 5.
(c) Suspension of Rules. In the interest of expediting decision, or for other good cause shown, this Court may suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction; provided, however, in civil cases this Court will not extend the time for taking an appeal as provided in Rules 4 or 5.
In the Official Comment to Rule 2 we find the following:
Under Rule 2(a)(1), if an appeal is not taken with the time specified in Rules 4 or 5, the Court, on its own motion or on motion of party, shall dismiss it. Rule 4(g) states when an extension of time may be granted by the trial court. Rule 2(c) provides for the suspension of Rule 2(a)(1) in criminal cases.
Rule 2(c) provides for suspension of the rules for reasons of expedition or good cause shown. It is important to note that in civil cases, under Rule 2(c) the Court may not extend the time for taking an appeal. This is a departure from prior law.
The question before the Court is not whether we must dismiss this appeal but whether we should. Of course, so long as Rule 2 directs mandatory dismissal, that is a powerful reason why we should grant the motion, but this Court would certainly have the authority to amend Rule 2 to delete the mandatory dismissal provision, as this Court had the authority to promulgate the rule in the first place. In the end, many of the reasons why we should strictly enforce Rule 2 correspond to the reasons why we adopted it.
Under our law any party aggrieved by a final judgment in the trial court may of right appeal to this Court. A number of considerations lie behind both the form and content of any rule setting a time limit for perfecting an appeal. For one thing, we want the time limit to be reasonable. We once had a rule requiring that the appellant give notice to the court reporter within ten days. Experience taught us that was too short. The time limit for perfecting an appeal should not be set or enforced so as to discourage or encourage appeals. The decision whether to appeal is one to be made by the unsuccessful litigant below and her lawyer, and the rule should allow time for them to consider their alternatives. On the other hand, we want appeals filed within a reasonable time. The successful litigant below is entitled to know with reasonable promptness whether he or she will be subject to further litigation and not to be left hanging for an inordinate period of time.
We have adopted a procedure that is simple, see Rule 3, and allowed thirty days to complete the procedure. The thirty day time limit is surely one with which anyone can comply. We cannot imagine it taking more than fifteen minutes of an attorney's time to perform the preparation and mailing of a notice of appeal. Indeed, Rule 3 simplifies the events jurisdictionally required to perfect an appeal. Departing from prior practice whereby perfection consisted of a notice of appeal plus designation of the record and pre-payment of costs, Rule 3 provides that appeal "shall be taken by filing a notice of appeal with the clerk of the trial court" within the time required by Rule 4. While designation of the record and payment of costs remain essential steps in processing an appeal, the giving of a proper and timely notice appeal is the only action prerequisite to vesting this Court with jurisdiction to hear the appeal. Fortunately, we are well beyond the days when failure to make prepayment of the cost of the transcript, within the time for taking appeal, was an essential condition precedent to the right to make an appeal bond or to deposit that amount with the trial court clerk in lieu of such bond. See, e.g. Gulf South Contractors, Inc. v. Anderson, 254 Miss. 830, 183 So.2d 189 (1966), where this Court dismissed an appeal for this very failure.
The above points suggest the content of the rule. The question then becomes what form it should take. The interests of certainty and avoiding official arbitrariness in decision-making suggest a hard-edged inflexible cutoff to end the reasonable time frame, as opposed to a loose or flexible standard. There is no particular virtue in a thirty-day rule, as opposed to a thirty-one day rule. There are important policy considerations at work, however, that suggest a precise rule, strictly enforced, rather than a directive to "file notice of appeal within a reasonable time" or a precise rule that is riddled with exceptions or is not enforced. All are interested in knowing with certainty whether the appeal has been perfected. Satellite litigation regarding the question of whether the appeal has been perfected is wasteful and time consuming, both to the litigants and to the court and promotes no inherent value. See Moran v. Necaise, 437 So.2d 1222, 1225 (Miss.1983). Moreover, the circumstances of litigants wishing to appeal are not likely to vary so much one from the other that flexibility in interpretation becomes important.
For these reasons we have opted for a thirty-day rule, considering that this is a reasonable period of time within which anyone can perfect her appeal. We have put this rule in the form of a hard-edged, mandatory rule and there are a number of reasons why we should enforce it as written. See Rules 2, 4 and 26, Miss.Sup.Ct. Rules.
Strict enforcement has the virtue of treating alike all persons similarly situated. We perceive no circumstances involving potential appellants from adverse judgments in civil actions which would compel a unique or flexible treatment. All are entitled to a reasonable time within which to perfect an...
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