Moore v. Wilson
| Docket Number: | 2006-CA-00363-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-02-2007 Opinion Author: KING, C.J. Holding: Dismissed |
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| Additional Case Information: |
Topic: Real property - Timeliness of appeal - M.R.A.P. 4(a) - M.R.C.P. 77(d) - M.R.A.P. 4(h) - M.R.A.P. 2(c) - M.R.A.P. 2(a)(1) Judge(s) Concurring: LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 02-03-2006 Appealed from: Claiborne County Chancery Court Judge: Kennie Middleton Disposition: MOTION TO RE-OPEN TIME FOR APPEAL DENIED; AGREED ORDER ON REMAINING ISSUES OF CONTEMPT AND ATTORNEY’S FEES Case Number: 11,523 |
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| Party Name: | Attorney Name: | |||
| Appellant: | FREDDIE B. MOORE AND VIOLA B. MOORE |
JOHNNIE MCDANIELS |
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| Appellee: | EARL WILSON, SR. AND JEANETTE D. WILSON | MELVIN HURLEY MCFATTER |
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| Topic: | Real property - Timeliness of appeal - M.R.A.P. 4(a) - M.R.C.P. 77(d) - M.R.A.P. 4(h) - M.R.A.P. 2(c) - M.R.A.P. 2(a)(1) |
| Summary of the Facts: | Freddie and Viola Moore live on land adjoining the property of Earl Wilson, Sr. and Jeanette Wilson. The property was once commonly owned by Leola Turnipseed, Irwin Turnipseed, Jr. and Alice Bass. Errors in the land deed descriptions led to disputes regarding the common boundary line between the properties. Moore filed a complaint in the chancery court against the Turnipseeds, Bass, and the Wilsons. The chancellor dictated an agreed decree into the record, setting out the common boundary line between the neighbors. The agreed decree was later reduced to writing and entered into the record on January 8, 1991. The decree required the Moores and Wilsons to construct a fence along the established boundary line within ten days of the January 8th judgment and to equally split the cost of the court appointed land surveyor. The boundary fence remained unaltered until May 2005, when Mr. Moore removed a portion of the fence. Mr. Wilson, after discovering the boundary line alteration, filed a motion for citation of contempt of the 1991 order. The chancellor found that the 1991 agreed decree was res judicata regarding the properties’ common boundary line. The court found Mr. Moore in willful contempt of the decree for his intentional moving and destruction of a portion of the established boundary fence. The court required the Moores to pay the Wilsons the cost of the court action, including attorney’s fees in the amount of $1,542.47, as well as interest. The court directed the Wilsons to file the judgment in the county’s judgment rolls and directed the Moores to repair the fence no later than October 6, 2005. When the time for appeal expired, the Moores had not filed a notice of appeal with the court clerk’s office. On October 20, 2005, the Wilsons served the Moores with a second motion for citation of contempt, as well as a copy of the court’s September 8, 2005, decree. On November 3, 2005, the Moores filed a motion to re-open time for the appeal. The chancellor denied the motion to re-open the time for appeal as untimely filed. Regarding the second motion for citation of contempt, the court approved an agreement set forth by the parties in which the Moores would repair and replace the fence on the common boundary line to the condition it was in before Mr. Moore’s interference. The Moores also agreed to pay the Wilsons for their expenses in bringing the two actions for contempt, including attorney’s fees and expenses in the amount on $2,600, plus interest. The Moores appeal. |
| Summary of Opinion Analysis: | M.R.A.P. 4(a) requires parties seeking to appeal trial court decisions to file a notice of appeal within thirty days of the judgment or order’s entry. In this case, the court clerk’s office did not notify the Moores immediately following the entry of the September 8 decree, as is required by M.R.C.P. 77(d). However, the clerk’s failure to notify the Moores about the decree’s entry does not excuse the Moore’s failure to appeal in a timely manner, except as permitted by M.R.A.P. 4(h). Under the requirements of Rule 4(h), the Moores should have filed their notice to reopen the time for appeal within seven days after receipt of the notice of the decree. The Moores filed their request to reopen the time for appeal approximately fourteen days after the receipt of the notice of the decree. Rule 4(h) requires the court to apply the limitations for re-opening the time for appeal in an obligatory and nondiscretionary matter. The chancellor did not err in finding that the court lacked jurisdiction to grant the Moores’ untimely motion for extending the time for appeal of the September 8, 2005 decree. Pursuant to M.R.A.P. 2 (c), the Court may not extend the time for filing a civil appeal, and under M.R.A.P. 2(a)(1), the case must be dismissed as untimely civil appeal. |
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