Cuevas v. Ladner, et al.


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Docket Number: 2011-CA-00108-COA
Court of Appeals: Opinion Link
Opinion Date: 04-10-2012
Opinion Author: Maxwell, J.
Holding: Reversed and remanded
Additional Case Information: Topic: Real property - Out-of-time appeal - M.R.C.P. 77(d) - M.R.A.P. 4(h) - Presumption of notice
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Roberts and Russell, JJ.
Non Participating Judge(s): Fair, J.
Dissenting Author : Carlton, J.
Dissent Joined By : Ishee, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - REAL PROPERTY
Trial Court: Date of Trial Judgment: 12-27-2010
Appealed from: Harrison County Chancery Court
Judge: Eugene "Gene" Fair
Disposition: MOTION TO REOPEN TIME FOR APPEAL DENIED
Case Number: 08-00527-4
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Lloyd Wayne Cuevas and Charlotte Angell Cuevas




 MICHELE DAWN BIEGEL B. RUTH JOHNSON



  
  • Appellant #1 Brief
  • Appellant #1 Reply Brief
    		•
    Appellee: Angela K. Ladner and Kelly C. Smith JAMES C. SIMPSON JR.  
    Synopsis provided by:

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    Topic: Real property - Out-of-time appeal - M.R.C.P. 77(d) - M.R.A.P. 4(h) - Presumption of notice
    Summary of the Facts: Lloyd Cuevas executed and delivered a quitclaim deed conveying his homestead property to his two daughters, Angela Ladner and Kelly Smith. Cuevas later filed suit seeking to cancel the deed of record, claiming his signature on the deed had been forged and illegally notarized. The chancellor disagreed with Cuevas’s allegations. The chancellor entered a final judgment resolving the dispute in favor of Ladner and Smith. Cuevas requested that the chancellor amend his findings under M.R.C.P. 52 or, in the alternative, grant a new trial under M.R.C.P. 59. The chancellor denied Cuevas’s motion on November 1, 2010. Pursuant to M.R.A.P. 4(a) & (d), Cuevas had thirty days from this date to file a notice of appeal. He missed the deadline. On December 10, 2010, Cuevas moved to reopen his time for appeal under M.R.A.P. 4(h), alleging he did not receive proper notice of the chancellor’s November 1 order. The chancellor denied Cuevas leave to file an out-of-time appeal. Cuevas appeals.
    Summary of Opinion Analysis: M.R.C.P. 77(d) mandates that “[i]mmediately upon the entry of an order or judgment[,] the clerk shall serve a notice of the entry” to the parties. In addition to the clerk’s notice, a party may serve notice on the other party. By doing so, the prevailing party may protect itself from the possibility of an adverse party claiming lack of notice and insure the running of the clock for the purposes of appeal. If a party does not receive notice of a court order or receives notice so late it impairs the opportunity to file a timely notice of appeal, that party may seek relief under M.R.A.P. 4(h). The burden is on the party seeking relief to show lack of timely notice. A party’s specific factual denial of receipt is sufficient to conclusively overcome any subjective reasoning by a trial judge or ambiguity in a record as to whether notice was actually received. Once the presumption of notice is rebutted, the trial court must address the issue of prejudice. “Prejudice” under Rule 4(h) is some adverse consequence other than the cost of having to oppose the appeal and encounter the risk of reversal. Here, Cuevas made a specific factual denial that he received notice. In his motion for an out-of-time appeal, he alleged that neither he nor his counsel received notice of the chancellor’s November 1, 2010 order (which denied his Rule 52 post-trial motion) within 21 days. In support of his motion to reopen, Cuevas attached an affidavit from his attorney, who attested she only learned of the entry of the November 1 order after receiving an email from opposing counsel on December 7. In response to Cuevas’s motion, Ladner and Smith claimed the handwritten language “4C” appearing on the court’s November 1 order showed copies had been sent to the four counsel of record. Though the handwritten designation “4C” may have established a presumption of notice, this presumption was rebutted and terminated when Cuevas made a specific factual denial that he received notice. Ladner and Smith also suggest for the first time on appeal that Cuevas’s “lead counsel” might have received proper notice. Yet Ladner and Smith point to no record evidence demonstrating that lead counsel received proper notice, or for that matter, that he was Cuevas’s lead counsel during post-trial proceedings. Neither Ladner nor Smith argue that they would be prejudiced by allowing Cuevas to re-open the time for appeal. Thus, the chancellor abused his discretion in denying Cuevas an out-of-time appeal.


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