Patricia Myatt v. Peco Foods of Mississippi, Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CA-01824-COA
PATRICIA MYATT, INDIVIDUALLY AND ON
BEHALF OF ALL WRONGFUL DEATH
BENEFICIARIES OF TODD DAVID MYATT,
DECEASED
APPELLANT/CROSSAPPELLEE
v.
PECO FOODS OF MISSISSIPPI, INC.
APPELLEE
AND
WINSTON BAILEY
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR
APPELLANT/CROSS APPELLEE:
ATTORNEYS FOR APPELLEE:
ATTORNEYS FOR
APPELLEE/CROSS-APPELLANT:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE/CROSSAPPELLANT
9/17/2007
HON. MARCUS D. GORDON
NESHOBA COUNTY CIRCUIT COURT
JAMES ASHLEY OGDEN
SHELDON G. ALSTON
JONATHAN ROBERT WERNE
JOHN B. MACNEILL
SUSAN R. BRYAN
CIVIL - WRONGFUL DEATH
SUMMARY JUDGMENT GRANTED IN
FAVOR OF DEFENDANT PECO FOODS OF
MISSISSIPPI, INC.
APPEAL DISMISSED - 11/10/2009
BEFORE LEE, P.J., GRIFFIS AND BARNES, JJ.
BARNES, J., FOR THE COURT:
¶1.
In this wrongful death claim, Patricia Myatt (Patricia) appeals the Neshoba County
Circuit Court’s granting of summary judgment in favor of Peco Foods of Mississippi, Inc.
(Peco). Additionally, Winston Bailey, co-defendant of Peco, appeals the entry of the Rule
54(b) final judgment in favor of Peco. Finding that the trial court erred in granting the Rule
54(b) certification, we dismiss this appeal for lack of jurisdiction.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶2.
On July 7, 2005, Todd David Myatt was killed when he was run over by a tractor-
trailer operated by Bailey. The accident occurred at a feed mill facility owned by Peco.
Myatt was an employee of Mississippi Sales and Service (Mid-MS), a construction company
that had been hired by Peco to erect a new structure at the Peco facilities. On the morning
of the accident, Myatt and co-worker, Daryl Robison, were instructed by the Peco plant
manager, Gary Nelson, to begin a painting job in an area adjacent to the paved road where
the tractor-trailer trucks were entering and unloading at the plant. When the men started
working that morning, no trucks were in the work area. However, later that morning, there
was a backup at the plant’s loading dock, and Peco allowed the trucks to park off the paved
road in the adjacent area while waiting to unload. Bailey’s truck was parked directly in front
of Myatt’s work area and was only about four feet away from where Myatt was painting.
Bailey’s truck remained idling in that area for several hours. While Myatt was in the process
of changing out a paint gun, Nelson, who could not see down the right side of Bailey’s truck,
signaled Bailey to move the truck forward. When Bailey moved the truck, Myatt was pulled
underneath the tires and killed.
¶3.
On December 15, 2005, Patricia filed a complaint against Peco, Griffin Industries, Inc.
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(Bailey’s employer), Bailey, and John Does 1-5. The complaint alleged that the defendants,
independently and in conjunction with one another, caused and/or contributed to Myatt’s
death. Peco filed a motion for summary judgment on June 15, 2007. On September 20,
2007, the trial judge granted Peco’s motion and entered a final judgment certified in
accordance with Mississippi Rule of Civil Procedure 54(b). Patricia now appeals the trial
court’s grant of Peco’s motion for summary judgment. Additionally, Bailey has filed an
appeal contesting the trial court’s entry of a Rule 54(b) final judgment for Peco. Finding that
the trial judge abused his discretion in certifying the judgment under Rule 54(b) in favor of
Peco, we dismiss this appeal for lack of jurisdiction.
WHETHER THE TRIAL COURT ERRED IN ITS ENTRY OF FINAL
JUDGMENT FOR PECO UNDER RULE 54(b).
¶4.
Bailey, in his appeal to this Court, asserts that the dismissal of Peco from the case
pursuant to Rule 54(b) was improper. “Where a summary judgment dismisses some of the
parties to a lawsuit, but not all of the parties, Rule 54(b) of the Mississippi Rules of Civil
Procedure governs.” Fairley v. George County, 800 So. 2d 1159, 1161 (¶4) (Miss. 2001).
Rule 54(b) states:
When more than one claim for relief is presented in an action, whether as a
claim, counterclaim, cross-claim, or third-party claim, or when multiple parties
are involved, the court may direct the entry of a final judgment as to one or
more but fewer than all of the claims or parties only upon an expressed
determination that there is no just reason for delay and upon an expressed
direction for the entry of the judgment. In the absence of such determination
and direction, any order or other form of decision, however designated which
adjudicates fewer than all of the claims or the rights and liabilities of fewer
than all the parties shall not terminate the action as to any of the claims or
parties and the order or other form of decision is subject to revision at any time
before the entry of judgment adjudicating all the claims and the rights and
liabilities of all the parties.
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M.R.C.P 54(b).1 We review a Rule 54(b) judgment “under an abuse of discretion standard.”
Laird v. ERA Bayshore Realty, 841 So. 2d 178, 180 (¶7) (Miss. Ct. App. 2003) (citation
omitted).
¶5.
Although Bailey is a defendant in the underlying suit, he is not a party to the 54(b)
judgment. “‘Standing’ is a jurisdictional issue which may be raised by any party or the Court
at any time.” City of Madison v. Bryan, 763 So. 2d 162, 166 (¶20) (Miss. 2000) (citing
Williams v. Stevens, 390 So. 2d 1012, 1014 (Miss.1980)). We find that Bailey does not have
standing to appeal the 54(b) judgment as there is no evidence that he has a considerable stake
in the outcome of this appeal. See Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 333-34
(1980) (a party cannot appeal from a judgment unless he retains a personal stake in the
outcome and is “aggrieved” by the judgment); see also Klamath Strategic Inv. Fund ex rel.
St. Croix Ventures v. United States, 568 F.3d 537, 546 (5th Cir. 2009) (“[a]s a general matter,
a party who is not aggrieved by a judgment does not have standing to appeal it.”). Bailey
does not argue against the propriety of the trial court’s determination that Peco did not breach
any legal duty owed to Myatt. Rather, his sole objection is that the entry of final judgment
certified under Rule 54(b) would prejudice his defense in future proceedings. He has not,
however, shown this Court what this prejudice might be.
¶6.
Had Bailey not raised the issue, however, this Court would be required to address the
appealability of the circuit court’s order on our own initiative. See Williams v. Delta Reg’l
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Rule 54(b) of the Federal Rules of Civil Procedure, which has similar language to
the Mississippi rule, also requires an express determination that there is no just reason for
delay.
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Med. Ctr., 740 So. 2d 284, 285 (¶5) (Miss. 1999) (although a party fails to raise the issue as
to whether the circuit court’s order is appealable, the appellate court “must address this
question on [its] own initiative”); see also Cox v. Howard, Weil, Labouisse, Friedrichs, Inc.,
512 So. 2d 897, 899 (Miss. 1987) (noticing “plain error in the improvident granting of [the]
judgment,” the supreme court dismissed the appeal sua sponte for improper Rule 54(b)
certification).
Accordingly, we must address the propriety of the court’s Rule 54(b)
certification in order to determine whether we have jurisdiction.
¶7.
The intent of a Rule 54(b) judgment is “to ease the burdens associated with complex
litigation and to allow parties whose liability in such cases has been adjudicated to reach a
final resolution without undue delay.” Byrd v. Miss. Power Co., 943 So. 2d 108, 111 (¶9)
(Miss. Ct. App. 2006) (citing Cox, 512 So. 2d at 900) (emphasis added). In Cox, the trial
judge granted summary judgment and certified a Rule 54(b) judgment as to one cause of
action in favor of the defendants, which Walter Del Cox, Jr. argued was in error. In its
review, the supreme court acknowledged that Rule 54(b) was a “new concept in our state trial
procedure” and provided “cautionary guidance” to the trial courts regarding the limitation
of a Rule 54(b) judgment. Cox, 512 So. 2d at 899. The court explained that the discretionary
power of the trial court in granting a Rule 54(b) judgment “must be exercised ‘in the interest
of sound judicial administration,’ taking into account ‘judicial administrative interests, as
well as the equities involved.’” Id. at 900 (citing Curtiss-Wright Corp. v. Gen. Elec. Co., 446
U.S. 1, 8 (1980)). The supreme court also recommended that “Rule 54(b) judgments be
reserved for rare and special occasions” and advised attorneys and trial judges to exercise
restraint in their utilization of Rule 54(b) to avoid “improper or unnecessary appeals.” Id.
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It further stated that before an attorney proposes a Rule 54(b) judgment to a trial court, he
“should review Wright and Miller, Moore’s Federal Practice and Federal case law . . . [and]
trial judges should require such research and preparation before they even consider the
propriety of granting it.” Id.
¶8.
The supreme court advised the trial court not to issue a Rule 54(b) certification
“unless the remainder of the case is going to be inordinately delayed, and it would be
especially inequitable to require a party to wait until the entire case is tried before permitting
him to appeal.” Id. The United States Court of Appeals for the Fifth Circuit has concurred
with this stance, stating that Rule 54(b) certification should only be granted by the district
court “when there exists some danger of hardship or injustice through delay which would be
alleviated by immediate appeal; it should not be entered routinely as a courtesy to counsel.”
PYCA Indus, Inc. v. Harrison County Waste Water Mgmt. Dist., 81 F.3d 1412, 1421 (5th Cir.
1996); see also Page v. Gulf Oil Corp., 775 F.2d 1311, 1313 n.2 (5th Cir. 1985) (Rule 54(b)
certification “should be reserved for a case where a delay in the appeal might result in
prejudice to a party”).
¶9.
In the present case, there was no discussion at the summary judgment hearing
regarding a Rule 54(b) certification. However, the order for final judgment, which was
prepared by counsel for Peco and entered by the trial judge, contained the Rule 54(b)
language that there was “no just reason for delay.” The order did not contain any analysis
or rationale for this conclusion. The Sixth Circuit Court of Appeals has stated that a court
should set forth its reasoning for issuing a Rule 54(b) certification. See Solomon v. Aetna
Life Ins. Co., 782 F.2d 58, 61 (6th Cir. 1986) (a district court should review “competing
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considerations” in making its Rule 54(b) certification, and “state the ones considered to be
most important”). Although other federal jurisdictions have not extended this requirement
for articulated reasoning in cases where it was evident that the certification was warranted,
they have accorded less deference to those instances where the court failed to do so. See
Feinstein v. Resolution Trust Corp., 942 F.2d 34, 40 (1st Cir. 1991) (if the district court’s
justification for a 54(b) certification is “both apparent and sufficient, appellate jurisdiction
attaches notwithstanding the court’s failure to state its reasons”); Smith v. Half Hollow Hills
Cent. Sch. Dist., 298 F.3d 168, 171 (2nd Cir. 2002) (although there are rare situations where
the reason for certification may be so obvious no explanation is necessary, in order “[t]o
avoid an unnecessary remand, district courts are always better served by providing a brief
statement of their reasons); Carter v. City of Philadelphia, 181 F.3d 339, 346 (3rd Cir. 1999)
(“the absence of an explanation by the district court [for its Rule 54(b) certification] does not
pose a jurisdictional bar when the propriety of the appeal may be discerned from the
record”); Fox v. Baltimore City Police Dep’t., 201 F.3d 526, 531 (4th Cir. 2000) (deference
is given to a district court’s “determination that a judgment is final and no just reason exists
for delay”; however, less deference is accorded when “the court offers no rationale for its
decision to certify”); Stockman’s Water Co. v. Vaca Partners, L.P., 425 F.3d 1263, 1265
(10th Cir. 2005) (“clearly articulated” reasons should be given by a court when entering a
Rule 54(b) certification “so that we can review a [Rule] 54(b) order more intelligently and
thus avoid jurisdictional remands”); Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d
162, 166 (11th Cir. 1997) (although a district court is not required to provide a reasoning for
certification in every case, the failure to do so nullifies any deference which might otherwise
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be accorded the decision to grant a Rule 54(b) certification).
¶10.
In Mississippi, our supreme court has echoed this view.
While we will not require a trial court to set forth specific reasons and findings
prefatory to entering a Rule 54(b) judgment, we will look with disfavor on
such judgment. Indeed, unless the reason the judgment was granted is clear
from the record, we will not search for a justification, but will vacate the
appeal.
Cox, 512 So. 2d at 901 (emphasis added). In this case, no explanation or reason was given
by the trial court as to its justification for the entry of the final judgment for Peco, aside from
the formulaic recitation of “no just reason for delay.” This failure by the trial court to include
a reasoned explanation makes any review by this Court, as to whether there was an abuse of
discretion in the entry of the Rule 54(b) judgment, merely speculative. See Solomon, 782
F.2d at 61 (the district court’s failure to give a reasoned statement regarding its entry of a
Rule 54(b) judgment makes any appellate “judgment as to the propriety of certification
speculative, both as to whether any consideration was given to the order and what factors
were considered”); see also McAdams v. McCord, 533 F.3d 924, 928 (8th Cir. 2008) (the
district court’s failure to provide specific reasons for its Rule 54(b) certification, makes the
review by the appellate court “more speculative and less circumscribed than would be the
case had the court explained its actions more fully”). Consequently, this Court requested that
the trial court submit additional findings regarding its reasoning for granting the Rule 54(b)
certification. However, the trial court’s response was not instructive. It merely reiterated the
court’s reasoning for granting summary judgment and, once again, stated that the Rule 54(b)
final judgment was granted as “there is no just reason for delay.”
¶11.
Although our supreme court has not required Mississippi trial courts to provide an
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articulated reasoning for a Rule 54(b) certification, we have stated that “[i]f there is nothing
about a case that merits a Rule 54(b) judgment, this Court will dismiss the appeal despite a
trial court’s mechanical use of the ‘no just reason for delay’ language.” Walters v. Walters,
956 So. 2d 1050, 1054 (¶13) (Miss. Ct. App. 2007) (citing Cox, 512 So. 2d at 900-01). Here,
the record does not support the trial court’s entry of the Rule 54(b) judgment. There would
not have been an inordinate delay in the trial proceedings if the trial court had not entered the
Rule 54(b) certification. The trial date was set for October 29, 2007, only five weeks after
the entry of the summary judgment in favor of Peco. It was merely upon Bailey’s filing of
his notice to appeal that the trial judge granted a stay of trial proceedings pending the
outcome of this appeal. In this case, the delay would have been minimal had Peco not
requested, and the trial judge not certified, judgment pursuant to Rule 54(b).
¶12.
Additionally, the underlying facts and the relationship of the claims involved were
also factors against the entry of a Rule 54(b) judgment. In making a Rule 54(b) certification,
it is proper for a court “to consider such factors as whether the claims under review were
separable from the others remaining to be adjudicated and whether the nature of the claims
already determined was such that no appellate court would have to decide the same issues
more than once even if there were subsequent appeals.” Curtiss-Wright Corp., 446 U.S. at
8. The United States Court of Appeals for the Sixth Circuit has reasoned that “the greater
the overlap in the factual basis between the adjudicated and unadjudicated claims, the greater
the possibility that [a] court will have to revisit the same facts under a different theory in a
second appeal.” Lowery v. Fed. Express Corp., 426 F.3d 817, 823 (6th Cir. 2005). Rule
54(b) “attempts to strike a balance between the undesirability of piecemeal appeals and the
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need for making review available at a time that best serves the needs of the parties.”
Solomon, 782 F.2d at 60. If there is “a commonality of operative facts” which underlies the
claims and defenses of a case, Rule 54(b) certification is not warranted. Lowery, 426 F.3d
at 823. In Byrd, 943 So. 2d at 111 (¶10), this Court found that the case, while involving
multiple defendants, arose “from a single set of facts and raise[d] a limited number of
issues.” Therefore, the granting of the Rule 54(b) certification, “as a practical matter, would
result in piecemeal litigation.” Id. In the case currently before us, it was the combined acts
of Peco and Bailey which allegedly contributed to the undivided injury which resulted,
Myatt’s death. Therefore, we find that the “single set of facts” and relationship between the
claims against Peco and Bailey were undeniably intertwined, thus making a Rule 54(b)
certification in favor of Peco inappropriate.
¶13.
Based on these factors, we cannot see where postponing the final judgment for Peco
until the remaining claims could be adjudicated would have resulted in any prejudice,
hardship, or injustice to any of the parties. Consequently, we conclude that the trial judge
abused his discretion in granting a Rule 54(b) judgment in favor of Peco, and we dismiss this
appeal for lack of jurisdiction.
¶14. THE APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO APPELLEE PECO FOODS OF MISSISSIPPI, INC.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, ISHEE AND MAXWELL, JJ.,
CONCUR. ROBERTS, J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. IRVING AND CARLTON, JJ., DISSENT
WITHOUT SEPARATE WRITTEN OPINION.
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