Clemmie Walker v. James May

166 So. 3d 613, 2015 Miss. App. LEXIS 349, 2015 WL 3863500
CourtCourt of Appeals of Mississippi
DecidedJune 23, 2015
Docket2013-CA-01370-COA
StatusPublished
Cited by8 cases

This text of 166 So. 3d 613 (Clemmie Walker v. James May) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clemmie Walker v. James May, 166 So. 3d 613, 2015 Miss. App. LEXIS 349, 2015 WL 3863500 (Mich. Ct. App. 2015).

Opinion

BARNES, J.,

for the Court:

¶ 1. This matter is brought on appeal as a result of three actions originally filed in Calhoun County Justice Court. On April 27, 2011, James May filed a complaint against Clemmie Walker, claiming that Walker’s dogs had entered May’s property and had killed and maimed some of May’s cattle. He demanded damages under Mississippi Code Annotated section 95-5-21 (Rev.2004), which provides:

If any dog shall kill or injure any poultry or any livestock, including cattle, horses, mules, jacks, jennets, sheep, goats and hogs, the owner of the dog shall.pay to the owner of such poultry or livestock any loss suffered as a result of such injury and the value of the poultry or livestock killed and all costs of collection, including court costs and reasonable attorney’s fees.

The justice court entered a judgment of $3,564 against Walker on June 8, 2011. Walker filed a notice of appeal with the Calhoun County Circuit Court on July 5, 2011.

¶ 2. May filed two additional complaints with the justice court — one on December 5, 2011, and one on December 19, 2011. In those complaints, May asserted that Walker continued to let his dogs run loose and that they had killed more of May’s cattle. Two additional judgments were awarded to May, both for $3,564. May filed suggestions of garnishments with Walker’s employer and banking institutions. An agreed order was entered staying garnishment proceedings until further order.

¶ 3. May filed a motion with the circuit court to consolidate the three causes on June 4, 2012, which the court granted. A hearing was held on October 30, 2012. On November 7, 2012, May filed a motion to amend the pleadings to include the additional incidents involving Walker’s dogs and May’s cattle that had occurred in late 2011. The circuit court granted the motion to amend the pleadings and, on January 3, 2013, the court ordered that May was entitled to damages in the amount of $10,500 and $4,000 in attorney’s fees.

¶ 4. On January 16, 2013, Walker filed a motion requesting additional time to file a post-judgment motion. 1 He explained that his trial counsel had refused to take any further action, and he had to hire a new attorney. The circuit court approved the motion, granting Walker an additional thirty days to file any post-trial motions. On February 14, 2013, Walker filed a motion for a judgment notwithstanding the verdict, or a new trial, which the circuit court denied on July 18, 2013. Walker subsequently filed a notice of appeal on August 9, 2013.

¶ 5. Because Walker did not file a timely motion to reconsider the judgment, we do not have jurisdiction to address Walker’s appeal. However, since the Mississippi Supreme Court has, on one occasion, addressed the merits of such an appeal, we have reviewed the merits of Walker’s appeal and find no error in the circuit court’s findings. Accordingly, we affirm the judgment.

ANALYSIS

¶ 6. Although not raised by either party, we must address the issue of whether this Court has jurisdiction to consider Walker’s appeal. See Michael v. Michael, *615 650 So.2d 469, 471 (Miss.1995) (An appellate court “is required to note its own lack of jurisdiction,” whether or not it is raised by the parties.) Rather than file a notice of appeal within thirty days of the entry of the judgment, as required by Rule 4 of the Mississippi Rules of Appellate Procedure, 2 May filed a request for additional time to file post-trial motions, which the circuit court granted. However, Rule 59(e) of the Mississippi Rules of Civil Procedure does not allow a trial court to grant such a request. The comment to Rule 59 specifically provides that “[a] motion to alter or amend must be filed within ten days after the entry of judgment,” and the trial court “is not permitted to extend this time period.” In Wilburn v. Wilburn, 991 So.2d 1185, 1191 (¶ 11) (Miss.2008), the supreme court stated that “[tjhis ten-day requirement is absolute[.]” Had Walker’s Rule 59 motion to alter the judgment been timely filed, then the time for filing a notice of appeal would have been tolled until the entry of the order disposing of that motion. See M.R.A.P. 4(d). However, an untimely motion has no such effect. Walker’s motion to alter the judgment was filed thirty-one days after the final judgment had been entered, clearly outside the ten-day requirement of Rule 59. Therefore, his notice of appeal, filed eight months after the January 3, 2013 judgment, was untimely. As such, Walker’s failure to file a timely post-trial motion deprives this Court of jurisdiction to consider his appeal. See Sanders v. Hoover, 2013-CA-0942-COA, - So.3d -, -, 2015 WL 652973, *2 (Miss.Ct.App. Feb.17, 2015); Gober v. Lee, 8 So.3d 912, 915 (¶ 14) (Miss.Ct.App.2009) (dismissing appeal because the defendant’s “Rule 59 motion was untimely” and, therefore, this Court lacked jurisdiction).

¶ 7. But in Scally v. Scally, 802 So.2d 128, 132 (¶¶ 26, 27) (Miss.Ct.App.2001), this Court considered an appellant’s claim that the appellee’s motion to alter a judgment was time-barred, and the majority concluded that because the appellant did not object or respond to the motion, he was barred from asserting the issue on appeal. Judge Southwick, in a special concurrence, however, clarified that there was no objection to be made because the motion was, in fact, timely. Id. at (¶30). Therefore, he found “waiver is not the answer.” Id.

¶8. Subsequently, in Wilburn, the supreme court considered a similar situation, noting that although the appellant’s motion for reconsideration was not timely, the ap-pellee had failed to object or respond to the motion. Wilburn, 991 So.2d at 1191 (¶ 13). Quoting our holding in Scatty, but failing to address the clarification noted by the special concurrence, the supreme court considered the merits of the appellant’s claims. From our research, Wilburn is the only instance in which our supreme court has allowed such a review.

¶ 9. Because Walker’s motion was untimely, under Rule 4 of the Mississippi Rules of Appellate Procedure, it did not extend his time for filing a notice of appeal. Accordingly, it is our position that this Court does not have jurisdiction to consider this appeal. However, as May did not object to the timeliness of the motion, in deference to the supreme court’s holding in Wilburn, we will briefly address the merits.

*616 ¶ 10. Walker contends that the judgment should be reversed, as the circuit judge failed to make appropriate findings of fact. During the bench trial, the circuit judge informed the parties:

When I draw the Opinion or the Order, it won’t be a long detail of why. I’m just going to come out with [it] like a jury does. And you can figure it out ... but, anyway, I’m not going to go into great detail about the factual part of it. I need to satisfy myself in my mind, think about it.

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166 So. 3d 613, 2015 Miss. App. LEXIS 349, 2015 WL 3863500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clemmie-walker-v-james-may-missctapp-2015.