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Harlow v. Grandma's House

December 10, 1998

DENISE DOWDY HARLOW
v.
GRANDMA'S HOUSE, INC. AND BECKY CHISM ROYE, INDIVIDUALLY, AND AS SECRETARY, AND DAVID NEAL ROYE, INDIVIDUALLY, AND AS PRESIDENT



Before Sullivan, P.j., Mills And Waller, JJ.

The opinion of the court was delivered by: Sullivan, Presiding Justice

DATE OF JUDGMENT: 06/24/97

TRIAL JUDGE: HON. FRANK ALLISON RUSSELL

COURT FROM WHICH APPEALED: PONTOTOC COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: REVERSED AND REMANDED - 12/10/98

¶1. Grandma's House, Inc. et al. and Denise Harlow reached a settlement agreement, the terms of which were read into the court record before Judge Frank A. Russell in the Circuit Court of Pontotoc County on May 20, 1996. Appellant Harlow agreed to assume all debts of the corporation, Grandma's House, Inc. [hereinafter Grandma's House] incurred by her personally or by and through the corporation as a result of her affiliation with the corporation, including a $47,012 debt to First National Bank. In turn, Appellees Becky Roye and David Roye agreed to relinquish all claims to the real property owned by Grandma's House, including removal of all lis pendens and execution of a quit claim deed.

¶2. The parties further agreed to execute cross releases personally and as corporate officers, and to execute all corporate and personal documents necessary to reflect Harlow as the sole shareholder, director and officer of Grandma's House. The parties also agreed to return certain items of personal property to its rightful owner(s). Finally, each party agreed to pay his or her own attorney's fees.

¶3. In its order of September 13, 1996, the circuit court, upon noting its previous order of June 27, 1996, specifically directed Harlow "to assume all debts of the Corporation known as Grandma's House, Inc.[,]" and dismissed the cause and counter-complaint with prejudice. Thereafter, on September 27, 1996, Harlow filed a Motion for a New Trial, or in the alternative, for Amendment of Judgment, and for Findings of Fact and Conclusions of Law. In its order of June 24, 1997, the court denied Harlow's motion for a new trial or in the alternative, for amendment of judgment, and assessed attorney's fees as sanctions against counsel for Harlow in the sum of seven hundred fifty dollars ($750.00).

¶4. On August 1, 1997, Harlow filed a Motion to Reopen Time for Appeal pursuant to M.R.A.P. 4(h). Harlow claimed neither she nor her counsel was furnished a copy of the June 24, 1997 order until August 1, 1997, after all time for appeal had expired. The circuit court denied Harlow's motion to reopen time for appeal on August 11, 1997.

¶5. On August 15, 1997, Harlow next filed a Motion to Extend Time for Filing Notice of Appeal pursuant to M.R.A.P. 4(g). Harlow again claimed neither she nor her counsel had received a copy of the June 24, 1997 order until August, 1, 1997. Harlow argued the circuit clerk's failure to provide her timely notice of the June 24, 1997 judgment constituted "good cause" to extend the time for filing a notice of appeal.

¶6. On August 27, 1997, Grandma's House opposed Harlow's motion to extend time for filing notice of appeal stating Harlow failed to show good cause or excusable neglect as required by Rule 4(g) to justify granting such an extension. Grandma's House also requested the court enforce the judgment rendered on June 24, 1997, wherein Grandma's House was awarded $750.00 as attorney's fees, and the court grant Grandma's House all costs and attorney's fees incurred in this action. On September 9, 1997, Harlow countered that the objection filed by Grandma's House should be stricken and its Motion for Attorney's Fees should be denied under M.R.C.P. 12(f) for failure to respond within ten days as required by the rule.

¶7. On August 29, 1997, Harlow filed her Notice of Appeal from the order entered on June 24, 1997, again claiming her counsel did not receive a copy of said order until August 1, 1997. Harlow noted there was pending at this time a Motion to Extend Time for Filing Notice of Appeal which the circuit court had not yet ruled upon and her notice of appeal was filed subject to the ruling of the court on said motion.

ΒΆ8. In its Order of December 4, 1997, nunc pro tunc July 23, 1997, the circuit court determined Harlow's motion for extension of time to file a notice of appeal was timely filed pursuant to the provisions of M.R.A.P. 4(g), and the court further determined Harlow had not received proper and timely notice of the entry of the order that is ...


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