Byrd v. Miss. Power Co.
| Docket Number: | 2005-CA-00323-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-21-2006 Opinion Author: KING, C.J. Holding: Appeal dismissed. Remanded to trial court |
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| Additional Case Information: |
Topic: Real property - Partial summary judgment - M.R.C.P. 54(b) - Interlocutory appeal - M.R.A.P. 5(a) - M.R.A.P. 4 Judge(s) Concurring: LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., Procedural History: Summary Judgment Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 09-08-2004 Appealed from: Forrest County Circuit Court Judge: Robert Helfrich Disposition: PARTIAL SUMMARY JUDGMENT GRANTED TO UTILITY COMPANY Case Number: CI02-0419 |
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| Party Name: | Attorney Name: | |||
| Appellant: | HAVIS B. BYRD |
EDWARD GIBSON, CHARLES GIBSON, III |
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| Appellee: | MISSISSIPPI POWER COMPANY, A MISSISSIPPI CORPORATION | RODERICK MARK ALEXANDER, BEN HARRY STONE, JONATHAN PAUL DYAL |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Real property - Partial summary judgment - M.R.C.P. 54(b) - Interlocutory appeal - M.R.A.P. 5(a) - M.R.A.P. 4 |
| Summary of the Facts: | Havis Byrd, along with various other landowners in Forrest County, filed a complaint against Mississippi Power Co. and Southern Co. The amended complaint, which added third-party lessee, Interstate Fibernet, Inc., as a defendant pursuant to an order from the trial court, alleged that MPC improperly installed fiber-optic cable on plaintiffs’ property and improperly permitted third parties to lease the excess space on those cables. The amended complaint alleges counts of trespass, nuisance, conversion, unjust enrichment, fraudulent concealment, fraud/fraudulent misrepresentation, and rescission. MPC filed a motion for partial summary judgment on the issue of trespass damages which the court granted. The trial court then entered a Rule 54(b) final judgment. The plaintiffs appeal. |
| Summary of Opinion Analysis: | Because the trial court entered a M.R.C.P. 54(b) final judgment on MPC’s motion for partial summary judgment, Byrd filed her appeal pursuant to M.R.A..P. 4, which sets forth the procedure for filing an appeal following an entry of judgment. Ordinarily, Mississippi courts (at the trial and appellate levels) treat a partial summary judgment as an interlocutory order and not as a final judgment. The comment to Rule 54(b) states that a final judgment is not required when the court disposes of one or more claims or terminates the action as to one or more parties and encourages trial courts to refrain from entering a final judgment except in limited circumstances. Thus, the trial court improperly entered a Rule 54(b) final judgment on the partial summary judgment. The parties state in their briefs that the case is proceeding in the court below – the parties have developed the record, and a second motion for summary judgment is pending. To permit this appeal as an appeal of right from a final judgment, where that final judgment is limited to the issue of Byrd’s right to damages on one claim of a multi-claim complaint, without even a determination in the trial court of the defendants’ liability on that claim, would contradict the prior holdings of the Mississippi Supreme Court and, as a practical matter, would result in piecemeal litigation. The procedural posture of the case suggests that this appeal is more akin to an interlocutory appeal than an appeal from a final judgment. However, none of the required conditions for interlocutory appeal under M.R.A.P. 5(a) are met in this case. Since the trial court improvidently granted the Rule 54(b) final judgment, this case cannot properly be appealed under M.R.A.P. 4. |
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