Smith v. Parkerson Lumber, Inc.
| Docket Number: | 2001-CT-00409-SCT Linked Case(s): 2001-CA-00409-COA ; 2001-CA-00409-COA ; 2001-CT-00409-SCT ; 2001-CT-00409-SCT ; 2001-CA-00409-COA ; 2001-CT-00409-SCT ; 2001-CT-00409-SCT ; 2001-CT-00409-SCT ; 2001-CT-00409-SCT ; 2001-CT-00409-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 10-09-2003 Opinion Author: McRae, P.J. Holding: Reversed and Remanded to the Court of Appeals for a decision on the merits. |
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| Additional Case Information: |
Topic: Notice of appeal - Entry of judgment - M.R.C.P. 77(d) - M.R.C.P. 79 - M.R.A.P. 4(h) Judge(s) Concurring: Pittman, C.J., Smith, P.J., Waller, Cobb, Easley, Carlson and Graves, JJ. Non Participating Judge(s): Diaz, J. Procedural History: Jury Trial Nature of the Case: CIVIL - PROPERTY DAMAGE Writ of Certiorari: Granted |
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| Trial Court: |
Date of Trial Judgment: 01-03-2001 Appealed from: Choctaw County Circuit Court Judge: Joseph H. Loper Disposition: JUDGMENT FOR PLAINTIFF IN THE SUM OF $1,650 AND COURT COSTS OF $2,239, ATTORNEY FEES OF $959 AND WITNESS FEES OF $450 Case Number: 98-005L |
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| Note: | On the Court's own motion and in accordance with Opinion of this Court handed down this date reversing the judgment of the Court of Appeals and remanding this case to the Court of Appeals for a decision on the merits, the Circuit Clerk of Choctaw County shall immediately enter the January 3, 2001, judgment in Case No. 98-005L on the docket of that court in accordance with M.R.C.P. 79 and forward, within 15 days of this order, a certified copy thereof to the Clerk of this Court for inclusion in the record on appeal. The original Court of Appeals opinion can be found at http://courts.ms.gov/Images/Opinions/Conv11919.pdf . | |
| Party Name: | Attorney Name: | |||
| Appellant: | TED SMITH |
ANDRE FRANCIS DUCOTE
WAYNE E. FERRELL, JR. |
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| Appellee: | PARKERSON LUMBER, INC. | JEFFREY S. MOFFETT H. WESLEY WILLIAMS |
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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: | Notice of appeal - Entry of judgment - M.R.C.P. 77(d) - M.R.C.P. 79 - M.R.A.P. 4(h) |
| Summary of the Facts: | Ted Smith sued Parkerson Lumber, Inc., requesting damages for the cutting of the trees, the diminution of property value, and the loss of enjoyment. Following a jury trial on damages, Smith was awarded damages for trees that were cut down and taken away from a fifty-foot strip of his property by Parkerson. The judgment was signed by the judge on January 3, 2001. Notice from the clerk regarding the judgment's entry was later received by the parties on January 29, 2001. Smith's counsel filed a motion for JNOV on February 5, 2001, which was dismissed on February 7, 2001. Smith filed his notice of appeal on March 8, 2001. The appeal was assigned to the Court of Appeals which held that jurisdiction was lacking to review the case because the notice of appeal was untimely filed. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | Smith argues that the trial court clerk's failure to abide by M.R.C.P. 77(d) is an intervening act which should have extended the time to file his post-trial motion and notice of appeal should have been extended. Although Smith did not receive the notice of judgment from the clerk until January 29, 2001, his argument is futile since M.R.C.P. 77(d) clearly provides that lack of notice of the entry by the clerk does not affect the time to appeal, nor relieve, nor authorize the court to relieve, a party for failure to appeal within the time allowed. In addition, M.R.A.P. 4(h) provides that the court may reopen the time for appeal. However, it is troubling that the Court of Appeals' decision concludes that the judgment was entered on January 3, 2001. Although a judgment may be signed and delivered to the office of the clerk, it is not effective until it has been entered on the docket. An examination of the trial court's docket in this matter shows no entry of a judgment on January 3, 2001. M.R.A.P. 4(b) provides that a notice of appeal filed after announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day of the entry. Here, the notice of appeal filed by Smith is one filed before the entry of a judgment within the meaning of M.R.A.P. 4(b). It is obvious that it was assumed that the judgment had been entered and that the notice of appeal was perfected. The only rational solution is for the circuit clerk to correct this clerical oversight immediately by entering the final judgment pursuant to M.R.C.P. 79, and by forwarding a certified copy thereof to the supreme court clerk for inclusion of the record on appeal within fifteen days of the date of this opinion. The notice of appeal filed by Smith shall be treated as filed after such entry and on the day of the entry. The case is remanded to the Court of Appeals for a decision on the merits. |
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