McGriggs v. Montgomery

710 So. 2d 886, 1998 WL 251808
CourtCourt of Appeals of Mississippi
DecidedMay 5, 1998
Docket96-CA-00248 COA
StatusPublished
Cited by6 cases

This text of 710 So. 2d 886 (McGriggs v. Montgomery) 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
McGriggs v. Montgomery, 710 So. 2d 886, 1998 WL 251808 (Mich. Ct. App. 1998).

Opinion

710 So.2d 886 (1998)

Willie McGRIGGS, Sr., Edwin McGriggs, Henry Shears, Louis Lee, Alfred McGriggs, Jr., in their official capacities as Chairman and Members, respectively, of the Seven Star M.B. Church, Appellants,
v.
Carl MONTGOMERY and Grover Evans, individually and in their official capacities as members of the Seven Star M.B. Church, Appellees.

No. 96-CA-00248 COA.

Court of Appeals of Mississippi.

May 5, 1998.

*887 Sanford E. Knott, Jackson, for appellant.

L.J. McKinney, Jr., Columbus, for appellee.

Before McMILLIN, P.J., and KING and PAYNE, JJ.

McMILLIN, Presiding Judge, for the court:

¶ 1. This case arises out of a dispute between two factions of a church located in Hinds County known as the Seven Star M.B. Church. The factions are in a struggle for the right to control the assets and the operation of the church. For purposes of clarity, the two factions will be identified by the name of the apparent leader of each group, i.e., the McGriggs Faction and the Montgomery Faction.

¶ 2. This suit was commenced by the McGriggs Faction as a complaint seeking certain injunctive relief against the Montgomery Faction that would, if granted, have placed the McGriggs Faction in control of the church. The chancellor entered an ex parte temporary restraining order against the Montgomery Faction, the exact terms of which do not appear in the record now before us, and scheduled a hearing on the issue of whether to convert the restraining order into a preliminary injunction. No formal hearing was conducted on the date set by the chancellor. Instead, the parties appeared before the chancellor and entered into informal negotiations aimed at resolving their differences. The negotiations were not concluded at that time. The Montgomery Faction later claimed, and the chancellor apparently agreed with the assertion, that the parties had recessed their efforts only after the competing sides had agreed to certain temporary protocols in regard to church matters. It is alleged that, among other things, the competing factions agreed that no church funds would be disbursed by either faction except for the ordinary operating expenses of the church. These agreements were not memorialized in the court record by written order or otherwise.

¶ 3. Shortly thereafter, the McGriggs Faction, as plaintiffs, filed a notice of voluntary dismissal of the suit under Mississippi Rule of Civil Procedure 41(a)(1)(i). That rule permits a plaintiff to unilaterally dismiss his suit "at any time before service by the adverse party of an answer or of a motion for summary judgment... ." Miss.R.Civ.P. 41(a)(1)(i). At the time the notice of dismissal was filed, the Montgomery Faction had filed neither an answer nor a motion for summary judgment. Nevertheless, the Montgomery Faction immediately filed a motion to reinstate the case, claiming that the McGriggs Faction's attempt to unilaterally dismiss the proceeding was an attempt to perpetrate a fraud upon them and the court and that the McGriggs Faction had violated the terms of the interim agreement by using church funds in the amount of $3,869.96 to pay their attorney's fees. The chancellor found that, in the posture of the case at the time the McGriggs Faction filed the notice of dismissal, it would be unfairly prejudicial to allow the McGriggs Faction to drop the suit. The chancellor therefore ordered the case reinstated and directed the McGriggs Faction and their attorney to restore the previously-disbursed funds to the church accounts. The McGriggs Faction filed a motion asking the chancellor to reconsider his ruling or, in the alternative, to stay its enforcement pending an appeal. The chancellor denied relief on this motion and the McGriggs Faction then filed a notice of appeal raising as the sole issue the chancellor's authority to reinstate a case voluntarily dismissed under Rule 41(a)(1)(i).

I.

The Interlocutory Nature of this Appeal

¶ 4. We note, at the outset of our consideration of this matter, that the McGriggs Faction could not take an appeal from the chancellor's reinstatement order as a matter of right. Assuming the order was within the power of the chancellor, it represented a new beginning of this litigation at the trial level rather than its conclusion. This raises a serious question of our authority to reach the merits of this appeal.

¶ 5. This Court acknowledges the proposition that, in the normal case, only *888 final judgments at the trial court level may be the subject of an appeal. Donald v. Reeves Transp. Co., 538 So.2d 1191, 1194 (Miss. 1989). Nevertheless, the Mississippi Supreme Court has established a procedure whereby a litigant may petition for appellate review of a trial court's interlocutory ruling. See Miss.R.App.P. 5. The supreme court has also, on one occasion, dealt with a situation where a litigant, apparently misconstruing the finality of the trial court's ruling, attempted to appeal the order without first obtaining the supreme court's permission under Rule 5. See Keyes v. State, 708 So.2d 540, 543 (Miss. 1998). In the Keyes case, the court concluded that it would advance the ends of justice to reach the merits of the appeal and exercised its authority under Mississippi Rule of Appellate Procedure 2 to suspend the appellate rules and decide the case.

¶ 6. We find ourselves in a somewhat different position because of the statutory scheme under which this Court operates. We do not entertain appeals directly from the trial courts. Rather, our jurisdiction is limited to those cases that are assigned to us for decision by the supreme court. Miss. Code Ann. § 9-4-3 (Supp. 1997). Therefore, Rule 5 does not — and legally could not — grant a litigant the right to petition this Court for an interlocutory appeal.

¶ 7. Nevertheless, once a matter is assigned to this Court for decision, our authority as to that case is indistinguishable from that possessed by the supreme court. "The Court of Appeals shall have the power to determine or otherwise dispose of any appeal or other proceeding assigned to it by the Supreme Court." Miss. Code Ann. § 9-4-3 (Supp. 1997). There is no reason under the statute or in logic that a motion before the supreme court for an interlocutory appeal under Rule 5 could not be assigned to this Court for resolution. Miss. Code Ann. § 9-4-3 (Supp. 1997). Only the most technical reading of Rule 5 would suggest that the supreme court intended to use the rules of appellate procedure to deny this Court an authority that otherwise would seem to exist by statute. We take judicial notice that no such Rule 5 motion has yet been referred to this Court for resolution, however, we also observe that the supreme court has, in one area of the law, moved from a case-by-case referral to a blanket assignment by subject matter. The practice has been, in those cases, to also give this Court responsibility for handling all pre-decision motions. In those kinds of cases where such broad authority has been delegated to this Court, it would appear illogical for the supreme court to retain the sole discretion to grant interlocutory appeals. We, thus, conclude that it is within the authority of this Court, upon proper referral from the supreme court, to grant a motion for a discretionary interlocutory appeal.

¶ 8.

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Bluebook (online)
710 So. 2d 886, 1998 WL 251808, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgriggs-v-montgomery-missctapp-1998.