192 So. 3d 1078
Miss. Ct. App.2016Background
- Bailey contracted to buy Chamblee’s house with a home-inspection contingency and agreed repairs; most repairs were completed but the soffit repair was not finished by closing.
- Bailey refused to attend the scheduled closing and later declined to close; Chamblee sued for breach of contract in county court.
- County court found Bailey breached the contract and awarded Chamblee damages, costs, and attorneys’ fees; Bailey appealed to circuit court.
- Circuit court affirmed the county-court judgment on May 22, 2012, but the circuit clerk failed to notify the parties; neither party received notice until Sept. 5, 2013.
- Bailey moved in circuit court to reopen the time for appeal and, after the court granted the motion, filed a notice of appeal; the Supreme Court held the reopening was unauthorized because the motion was filed more than 180 days after entry.
- The Court dismissed the appeal for lack of jurisdiction but awarded Chamblee appellate attorneys’ fees of $3,857.62 under the contract.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether circuit court could reopen time for appeal under M.R.A.P. 4(h) after clerk failed to give notice | Bailey: reopening permitted because she didn’t receive notice; motion filed after she learned of order | Chamblee: reopening not allowed because motion was filed more than 180 days after order entry | Reopening not allowed; motion untimely under Rule 4(h) (must be filed within 180 days of entry or 7 days of receipt, whichever is earlier) |
| Whether trial court could reopen appeal period under M.R.C.P. 60(b) | Bailey: Rule 60(b)(6) authorizes relief from judgment, so court can reopen appeal time | Chamblee: Rule 60 cannot extend or toll appellate deadlines; Rule 77(d) forbids using Rule 60 to alter appeal time | Court held Rule 60(b) cannot be used to extend or reopen time to file a notice of appeal; trial court lacked jurisdiction to grant such relief |
| Whether appellate courts may extend time in civil cases (Rule 2(c)) | Bailey: (implicit) equitable relief should permit extension given clerk failure | Chamblee: Appellate rules disallow extension in civil cases | Court: Appellate courts have no authority to extend appeal time in civil cases; dismissal required for lack of jurisdiction |
| Recovery of appellate attorneys’ fees under contract after dismissal for lack of appellate jurisdiction | Chamblee: contract entitles him to reasonable appellate fees; asks for half of trial award | Bailey: (implicit) dismissal precludes fees beyond trial award | Court: even if appeal dismissed, appellate court has ancillary jurisdiction to award fees; awards $3,857.62 (one-half of trial attorneys’ fees) |
Key Cases Cited
- Smith v. Parkerson Lumber Inc., 890 So.2d 832 (Miss. 2003) (untimely notice of appeal deprives appellate court of jurisdiction)
- In re A.M.A., 986 So.2d 999 (Miss. Ct. App. 2007) (Rule 60(b) cannot be used to extend time to file notice of appeal)
- Edmond v. State, 991 So.2d 588 (Miss. 2008) (trial court lacks jurisdiction to consider motion to reopen appeal time beyond appellate-rule limits)
- Holliman v. State, 129 So.3d 937 (Miss. Ct. App. 2013) (distinguishing criminal rule suspension authority from civil cases; Rule 2(c) cannot extend civil appeal time)
- Moore v. Wilson, 966 So.2d 853 (Miss. Ct. App. 2007) (appellate time for civil appeals may not be extended)
- Morgan v. U.S. Fid. & Guar. Co., 191 So.2d 917 (Miss. 1966) (appellate courts may award attorneys’ fees authorized by contract)
- Martin v. Williams, 172 So.3d 782 (Miss. Ct. App. 2013) (general practice of awarding appellate fees equal to one-half of trial award)
- Scurlock v. Purser, 985 So.2d 362 (Miss. Ct. App. 2008) (same rule on appellate fee calculation)
- Morand v. Stoneburner, 516 So.2d 270 (Fla. Dist. Ct. App. 1987) (appellate court retains jurisdiction to determine its own jurisdiction and may award fees ancillary to that determination)