Rule 2 Penalties for Noncompliance with Rules; Suspension of Rules

Advisory Committee Historical Note

Effective January 1, 1999, Rule 2(a)(2) was amended to provide that motions for additional time will not be entertained after notice of deficiency has issued. 717-722 So.2d XXVII (West Miss.Cases 1998).

Effective January 1, 1999, Rule 2(b) was amended to effect a technical change. 717- 722 So.2d XXVII (West Miss.Cases 1998).

Effective July 1, 1997, the Comment to Rule 2 was amended to reflect the promulgation of new Rule 4(h). 689-692 So.2d LXVI (West Miss. Cases 1997).

Effective January 1, 1995, Miss.R.App.P. 2 replaced Miss.Sup.Ct.R. 2, embracing proceedings in the Court of Appeals. 644-647 So.2d XXIV-XXVI (West Miss.Cases 1994).

Effective March 17, 1994, Miss.Sup.Ct.R. 2(a)(2) was amended to provide that if the party in default fails to correct the deficiency within 14 days after notification, the appeal shall be dismissed by the clerk. 632-635 So.2d XLII-XLIII (West Miss.Cases 1994).

Comment

Perpetuating the spirit underlying the former rules of the Mississippi Supreme Court, the present rules will be construed to facilitate the just and efficient disposition of causes brought before the Supreme Court and the Court of Appeals. Accordingly, compliance with even the most technical requirements of the rules is encouraged.

Under Rule 2(a)(1), if an appeal is not taken within the time specified in Rules 4 or 5, either court, on its own motion or on motion of party, shall dismiss it. Rule 4(g) states when an extension of time may be granted by the trial court. Rule 2(c) provides for the suspension of Rule 2(a)(1) in criminal and post-conviction cases.

Where dismissal appears warranted for any other reason, the rule provides for the clerk to give written notice of the deficiency to counsel for the defaulting party. Specifically, the clerk will notify counsel that the party is in default in some manner and has 14 days to correct the noted deficiency. If the deficiency is not corrected within 14 days after notification, the appeal shall be dismissed by the clerk. In pro se proceedings, notification of deficiency shall be sent to the party. The rule recognizes that deficiencies may result from actions of third parties, such as court officials. The primary responsibility, however, for assuring correction of the deficiency remains with the defaulting party.

Rule 2(b) states the inherent disciplinary authority of either appellate court over parties and officers of the court. Because Rules 3, 10, and 11 involve actions to be taken in the trial court to prepare the appellate record, the rule recognizes the concurrent jurisdiction of the trial court to impose sanctions for noncompliance with those rules. See Wilson v. State, 461 So. 2d 728, 729 (Miss. 1984). Rule 2(c) provides for suspension of the rules for reasons of expedition or good cause shown. It is important to note that in civil cases, under Rule 2(c), the Court may not extend the time for taking an appeal except as provided by Rule 4 (g) or (h). This is a departure from prior law. See Clark v. City of Pascagoula, 473 So.2d 477 (Miss.1985); but see Roberts v. Grafe Auto Co., Inc., 653 So.2d 250, 250-251 (Miss. 1994) (The Court held that several verdict forms signed by the trial court were not "final judgments" triggering the 30-day time for appeal. The Court further stated that "[e]ven assuming arguendo that the forms could be construed to be final judgments, [appellant] was never notified of their existence, and her right to due process would protect her from losing her right to appeal since she was not aware of the jury verdict forms and was not notified of their existence.") Where a party has filed an otherwise timely notice of appeal which is ineffective under Rule 4(d) or 4(e), the Court may, however, suspend the operation of 4(d) or 4(e) to prevent manifest injustice. This is not an extension of the "time for taking" the appeal. Also, because procedures for criminal appeals apply to post-conviction relief proceedings, Miss. Code Ann. § 99-39-25(1), the Supreme Court may suspend the rules and extend the time for taking an appeal in those proceedings. Rules 2(c) and 4(g) thus supplant the procedure described in Jones v. State, 355 So.2d 89, 90 (Miss.1978).

APPEALS FROM TRIAL COURTS