Public Employees' Retirement System v. Albert 'Butch' Lee
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-SA-00627-COA
MISSISSIPPI PUBLIC EMPLOYEES’
RETIREMENT SYSTEM
APPELLANT
v.
ALBERT “BUTCH” LEE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
1/16/2008
HON. WINSTON L. KIDD
HINDS COUNTY CIRCUIT COURT
MARY MARGARET BOWERS
MARK C. BAKER
CIVIL - STATE BOARDS AND AGENCIES
REVERSED THE DECISION OF THE PERS
BOARD OF TRUSTEES
REVERSED AND REMANDED - 5/26/2009
BEFORE KING, C.J., ROBERTS AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1.
This appeal involves the denial of a motion for an out-of-time appeal filed by the
Public Employees’ Retirement System of Mississippi (PERS) in the Circuit Court of Hinds
County, Mississippi. Finding that the circuit court abused its discretion by denying the
motion, we reverse the circuit court’s judgment and remand this case for further proceedings
consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
¶2.
This appeal turns upon the application of procedural rules and pleadings, rather than
upon the underlying merits of the factual claim. Nevertheless, a brief factual recitation is
contextually helpful. Albert “Butch” Lee injured his back on November 8, 2004, when he
attempted to lift a training dummy at the State Fire Academy, where he worked as an
instructor/supervisor. The record reflects no dispute that Lee suffered a permanent disability
rendering him unable to continue working in this capacity. Rather, the issue presented on
the underlying merits concerns solely whether this injury resulted from an on-the-job
traumatic injury or if the injury was related to a pre-existing condition. The parties agree that
Lee’s monthly benefits are not affected by the classification; however, Lee argues that the
classification of pre-existing condition results in negative tax liability ramifications.
¶3.
After the injury at the State Fire Academy, Lee sought a disability determination.
Ultimately, PERS determined that the injury was the result of a pre-existing condition. PERS
Disability Appeal Committee relied upon medical evidence, including that of Lee’s treating
physician to find that Lee suffered from back pain for approximately ten years prior to the
injury at the State Fire Academy. The documentation he submitted indicated that he had
been diagnosed with a congenital spinal condition.
¶4.
Lee appealed to the Circuit Court of Hinds County, which heard oral argument. Lee’s
counsel submitted a proposed order to the circuit court, with a copy to PERS. The trial judge
signed the order on June 29, 2007, and the order was entered on July 2, 2007. The record
reflects that the first notice PERS actually received that the circuit court had entered the
adverse opinion and order was a telephone call from Lee’s counsel to PERS’s counsel on
August 30, 2007. By then, the time for filing a notice to appeal had already expired. PERS
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filed a motion for leave to file an out-of-time appeal on September 5, 2007. The motion was
denied on November 21, 2007. PERS filed a motion for reconsideration of the denial on
December 3, 2007, and this was denied as well.
DISCUSSION
¶5.
The decision of whether to grant leave for an out-of-time appeal is discretionary, and
it is subject to the provisions of Mississippi Rule of Appellate Procedure 4(h), which
provides:
The trial court, if it finds (a) that a party entitled to notice of the entry of a
judgment or order did not receive such notice from the clerk or any party
within 21 days of its entry and (b) that no party would be prejudiced, may,
upon motion filed within 180 days of entry of the judgment or order or within
7 days of receipt of such notice, whichever is earlier, reopen the time for
appeal for a period of 14 days from the date of entry of the order reopening the
time for appeal.
(Emphasis added). “While the party seeking relief under Rule 4(h) bears the burden of
persuading the trial court of lack of timely notice, a specific factual denial of receipt of notice
rebuts and terminates the presumption that mailed notice was received.” M.R.A.P. 4(h) cmt.
Once the presumption of notice is rebutted, a trial court must address the issue of prejudice.
Pre-Paid Legal Servs., Inc. v. Anderson, 873 So. 2d 1008, 1009-10 (¶¶7-9) (Miss. 2004).
¶6.
In Horowitz v. Parker, 852 So. 2d 686 (Miss. Ct. App. 2003), this Court discussed the
application of the second prong of Rule 4(h), i.e., whether prejudice would occur to either
party if the time for appeal was reopened. In Horowitz, we found that prejudice must entail
more than simply the chance of reversal and a subsequent loss of any benefit gained by virtue
of the initial judgment. Id. at 688 (¶¶7-8) (citing M.R.A.P. 4(h) cmt.). “Prejudice might
arise, for example, if the appellee had taken some action in reliance on the expiration of the
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normal time period for filing a notice of appeal.” Id. at 688 (¶7) (quoting M.R.A.P. 4(h)
cmt.). Upon the backdrop of this examination of precedent and interpretations of M.R.A.P.
4(h) by the Mississippi Supreme Court and this Court, we must now examine the plain
language of Rule 4(h).
¶7.
The dissent states that “it is entirely plausible to me that the trial judge may have
believed that PERS actually received notice of entry of the order within the twenty-one days
of it being entered.” With all due respect, the analysis of the dissent overlooks the supreme
court’s clear direction to the trial courts that 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. Anderson, 873 So. 2d at 1009 (¶¶6-7).
Once the presumption of notice is rebutted, then controlling precedent and a plain reading
of Rule 4(h) require the trial court to address the issue of prejudice. Id. The supreme court
made clear that any prevailing party may protect itself from the possibility of an adverse
party claiming lack of notice and, thereby, “insure the running of the clock by mailing notice
of the entry of judgment themselves.” Id. at 1010 (¶8).
¶8.
The dissent asserts that Rule 4(a)(6) of the Federal Rules of Appellate Procedure is
identical to our Mississippi Rule of Appellate Procedure 4(h). However, we note that the
Mississippi rule enjoys the guidance of an informative comment explaining the termination
of the presumption of notice by a specific factual denial. The federal rule does not contain
any comment. Even though left without the benefit of the instructive comment to the
procedural rule, the federal courts nonetheless apply the plain language of the rule, which is
the approach set forth in the comment to our Mississippi Rule of Appellate Procedure 4(h).
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See Nunley v. City of Los Angeles, 52 F.3d 792, 798 (9th Cir. 1995).
¶9.
The dissent argues that the majority emasculates the word “may” in its construction
and interpretation of Rule 4(h).1 However, be not afraid, the majority seeks not to emasculate
the rule, but only to apply the plain and unambiguous language of the rule in the context as
it is written. The construction of the plain language of the rule, when read in the proper
context and with its correct punctuation, reflects that the court “may” upon motion reopen
the time for appeal if the two prongs are satisfied.2
¶10.
In examining the law as it applies to the case before us, we note that the circuit court’s
order denying PERS’s motion for leave to file an out-of-time appeal fails to make any
findings of fact as to any prejudice that Lee might suffer. The standard of review in this
situation is well known:
Where the trial court failed to make any specific findings of fact, this Court
will assume that the issue was decided consistent with the judgment and these
findings will not be disturbed on appeal unless manifestly wrong or clearly
erroneous. The reviewing court must examine the entire record and must
accept, "that evidence which supports or reasonably tends to support the
1
The construction asserted by the dissent equates the disjunctive term “or” with the
conjunctive “and.” However, the words “and” and “or” are not equivalent. In drafting the
rules, the supreme court clearly expressed its intention by the use of the conjunctive “and.”
See Earle v. Zoning Bd. of Review, 191 A.2d 161, 163 (R.I. 1963) (explaining use of “and”
and “or” in statutory language); see also F. Reed Dickerson, The Difficult Choice Between
“And” and “Or,” 46 A.B.A.J. 310 (1960) (explaining the meaning of conjunctive as a
connective word and notes that punctuation such as commas and semicolons can shed light
on the meaning of a statute as intended by the supreme court).
2
However, in its construction and interpretation of Rule 4(h), the dissent ignores the
punctuation in the rule and the impact of the drafters’ insertion of the connector word “and.”
In examining the context of the words and punctuation and resulting impact on the meaning
of Rule 4(h), we examine the drafters’ use of two commas setting off the word “may” in the
rule. The two conditions joined by the connector “and” precede the commas setting off the
insertion of the permissive “may.”
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findings of fact made below, together with all reasonable inferences which
may be drawn therefrom and which favor the lower court's findings of fact."
That there may be other evidence to the contrary is irrelevant.
Flowers v. State, 805 So. 2d 654, 656 (¶4) (Miss. Ct. App. 2002) (quoting Par Indus., Inc.
v. Target Container Co., 708 So. 2d 44, 47 (¶4) (Miss. 1998)). Therefore, we must examine
the record to see if any prejudice can be found that would support the circuit court’s denial.
¶11.
In the case before us, the record neither contains any evidence nor supports any
inference that Lee would have suffered any prejudice from allowing an out-of-time appeal
that would not have endured had the appeal been timely filed. While Lee might suffer some
adverse tax consequence from the classification of his retirement benefits, he would have
chanced this consequence in a timely filed appeal. Moreover, tax filings are subject to
amendment. In sum, the record suggests nothing to show that Lee took any action in
detrimental reliance upon the circuit court’s judgment. Therefore, the record contains no
credible evidence to support the trial judge’s inherent finding of prejudice. In order to find
prejudice, an evidentiary basis must exist to show some adverse consequence, other than the
costs of having to oppose the appeal and encounter the risk of reversal inherent in every
appeal. Horowitz, 852 So. 2d 688 at (¶¶7-8). See also Nunley, 52 F.3d at 795. Based on this
record, we reverse the denial of the motion to reopen and remand this cause to the circuit
court for further proceedings consistent with this opinion.
¶12. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLEE.
KING, C.J., GRIFFIS, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.
IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE
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AND MYERS, P.JJ., AND BARNES, J.
IRVING, J., DISSENTING:
¶13.
The majority finds that the circuit court abused its discretion in denying PERS’s
motion for an out-of-time appeal. While noting that the circuit court did not make any
specific findings of facts as to prejudice, the majority finds that the record contains neither
any credible evidence nor any inference to support the trial judge’s inherent finding of
prejudice. (Maj. opinion at (¶¶10-11)). Because of this lack of evidence to support a finding
of prejudice, the majority concludes that the circuit court abused its discretion and reverses
the trial judge’s order denying PERS an out-of-time appeal. In my view, the majority errs.
Therefore, I dissent.
¶14.
For the reasons that I now explain, I would affirm the decision of the trial judge. I do
not believe, as the majority apparently does, that Rule 4(h) of the Mississippi Rules of
Appellate Procedure requires a trial judge to grant a party’s motion to reopen the time for
taking an appeal if the other party will not suffer any prejudice.3 In other words, I believe
the trial judge retains some discretion to deny the motion even if the requirement of “no
3
Rule 4(h) provides:
The trial court, if it finds (a) that a party entitled to notice of the entry of a
judgment or order did not receive such notice from the clerk or any party
within 21 days of its entry and (b) that no party would be prejudiced, may,
upon motion filed within 180 days of entry of the judgment or order or within
7 days of receipt of such notice, whichever is earlier, reopen the time for
appeal for a period of 14 days from the date of entry of the order reopening the
time for appeal.
(Emphasis added).
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prejudice” is established. The comment to the rule says as much:
While the trial court retains some discretion to refuse to reopen the time for
appeal even when the requirements of Rule 4(h) are met, the concept of
excusable neglect embodied in Rule 4(g) simply has no place in the application
of Rule 4(h). See Avolio v. Suffolk, 29 F.3d 50, 53 (2d Cir. 1994). “To hold
otherwise would negate the addition of Rule 4[h], which provides an avenue
of relief separate and apart from Rule 4[g].” Nunley v. City of Los Angeles, 52
F.3d 792, 797 (9th Cir. 1995). Thus, “where non-receipt has been proven and
no other party would be prejudiced, the denial of relief cannot rest on [a lack
of excusable neglect, such as] a party’s failure to learn independently of the
entry of judgment during the thirty-day period for filing notices of appeal.” Id.
at 798.
M.R.A.P. 4(h) cmt.(emphasis added).
¶15.
We cannot know on the current record why the trial judge denied PERS’s motion for
an out-of-time appeal, but imputing a requirement in the rule and then scouring the record
for evidence of the imputed requirement is not a permissible option. Whether an out-of-time
appeal should be granted is left to the sole discretion of the trial court. Fortunately or
unfortunately, depending upon one’s point of view, the rule only prescribes the threshold
requirements or prerequisites for a judge’s exercising of that discretion. In other words, if
the nonmoving party will suffer prejudice, a trial judge has no discretion to exercise. The
judge must deny the motion for an out-of-time appeal. The majority erroneously reads the
rule as establishing the criteria for judging whether a trial judge has abused the discretion that
is conditionally granted. In reading the rule this way, the majority not only emasculates the
word “may” in the rule, it replaces it with “shall.” The Mississippi Supreme Court has made
clear that the term “may” is considered permissive or discretionary and that “shall” is
considered mandatory. Weiner v. Meredith, 943 So. 2d 692, 695 (¶11) (Miss. 2006).
¶16.
Since “may” and not “shall” is used in Rule 4(h), it is my view that the majority errs
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in reversing the trial judge for exercising the very discretion that he is permitted by the rule
to exercise. In Avolio, 29 F.3d at 54, the Second Circuit Court of Appeals reversed the
decision of the district court, which denied the plaintiffs’ motion to reopen the time to file
an appeal pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure, and
remanded for further proceedings. Federal Rule 4(a)(6) is identical to our Rule 4(h). The
Avolio court reversed because the district court improperly read into the rule a requirement
that the moving party prove excusable neglect before being allowed to proceed with an outof-time appeal.
Id. at 52.
But more importantly for our purposes, the Avolio court
recognized that the rule does not prescribe the breadth of a trial judge’s discretion:
We need not determine to what extent discretion may lie in the district court
under this rule; we do determine, however, that a denial of relief may not be
based on a concept of inexcusable neglect for not having learned of the entry
of judgment. That concept has no place in the application of subdivision (6).
Id. at 54.
¶17.
As stated, the trial judge did not provide his reason for denying PERS’s motion.
Therefore, it cannot be legitimately argued that the judge denied the motion because he found
PERS’s actions inexcusable in not discovering that the judgment had been entered. I quote
the pertinent portion of the judge’s order:
This cause having come by way of the Appellee’s Motion for Leave to File an
Out-of-Time Appeal and the Court having considered the Motion of the
Appellee, the Reply of the Appellant and the Memoranda of Law supporting
said pleadings, does hereby find that the Motion is not well-taken and is
hereby denied.
After its motion was denied, PERS filed a motion for reconsideration, and the trial judge
denied the motion, stating: “This cause having come by way of the Appellee’s Motion for
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Reconsideration and the Court having considered the Motion of the Appellee and the Reply
of the Appellant, does hereby find that the Motion is not well-taken and is hereby denied.”
¶18.
It is immediately apparent from a reading of the trial judge’s order that the judge did
not find that PERS did not receive notice of the entry of the order in Lee’s favor or that Lee
would not be prejudiced if the motion were granted. Although PERS stated in its motion for
leave to file an appeal out of time that it did not receive notice of the entry of the order until
August 30, 2007, after the expiration of the time in which to file an appeal, Lee did not admit
this allegation in his response. In fact, Lee’s response to PERS’s motion suggests that he
believes PERS was not entirely honest in making such an assertion. In his response, Lee
stated in part:
Prior to providing this proposed order, counsel for Mr. Lee advised the Court
of the impending deadline with respect to such ruling, copies of this
correspondence are attached as Exhibits “A,” “B,” and “C.” PERS was copied
on the correspondence from Mr. Lee’s counsel to the Court; therefore, based
upon this correspondence and the mandates of the aforementioned rule, it is
inconsistent with the facts and law for PERS to claim surprise that the Court
ruled when it did and that PERS did not learn of such ruling until the time for
appeal had expired. PERS’s motion fails to meet the requirements of MRAP
4(h) and the authority relied upon to formulate the rule; therefore, PERS’s
motion should be dismissed and the time for appeal should be deemed to have
expired.
¶19.
Based on Lee’s response to PERS’s motion, it is entirely plausible to me that the trial
judge may have believed that PERS actually received notice of entry of the order within
twenty-one days of it being entered. Therefore, under such circumstances, PERS would not
have met the first of the two threshold requirements for the trial judge to even exercise his
discretion in PERS’s favor. In any case, it was incumbent upon PERS to move the trial court
to make specific findings with respect to the notice and prejudice issues. It did not, even in
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its motion for reconsideration. Therefore, because of this additional reason, the majority errs
in reversing the trial judge.
¶20.
For the reasons presented, I dissent. I would affirm the order of the trial judge
denying PERS an out-of-time appeal.
LEE AND MYERS, P.JJ., AND BARNES, J., JOIN THIS OPINION.
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