Miss. R. App. P. 27

As amended through March 21, 2024

Rule 27 - Motions

(a)Content of Motions; Response. Unless another form is elsewhere prescribed by these rules, an application for an order or other relief shall be made by filing a motion for such order or relief with proof of service on all other parties. The motion shall contain or be accompanied by any matter required by a specific provision of these rules governing such a motion, shall state with particularity the grounds on which it is based, and shall set forth the order or relief sought. If a motion is supported by briefs, affidavits, or other papers, they shall be served and filed with the motion. Any party may file a response in opposition to a motion other than one for a procedural order within seven (7) days after service of the motion, but motions authorized by Rules 8, 9, and 41 may be acted upon after reasonable notice, and the court may shorten or extend the time for responding to any motion.

(b)Determination of Motions for Procedural Relief. Notwithstanding the provisions of Rule 27(a) as to motions generally, motions for procedural relief may be acted upon at any time without awaiting a response. When unopposed, motions for specified types of procedural orders may be disposed of by the clerk of the Supreme Court. The clerk may rule on motions:

(1) for enlargement of time permitted by these rules for periods not to exceed a total of 60 days,

(2) to make corrections in briefs or pleadings filed at the request of counsel filing the brief or pleading,

(3) to withdraw as counsel and/or substitute appearance of counsel, except in appeals from the imposition of a sentence of death,

(4) to voluntarily dismiss appeals where sought by the appellant or the cross-appellant, unless the case has been submitted to the Court for decision,

(5) to increase the page limit for briefs up to 75 pages, or up to 125 pages in appeals from the imposition of a sentence of death,

(6) to supplement the record where documents which were included in the designation of, yet omitted from, the record are certified according to Rule 11 and attached to the motion,

(7) to appear pro hac vice,

(8) to suspend record preparation or briefing, and

(9) such other motions as the Court may from time to time direct.

Any party adversely affected by such action may by motion to the appropriate appellate court request reconsideration, vacation or modification of such action by the clerk.

(c)Power of a Single Justice to Entertain Motions. In addition to the authority expressly conferred by these rules or by law, a single justice of the Supreme Court or a single judge of the Court of Appeals may entertain and may grant or deny any request for relief which, under these rules, may properly be sought by motion, except that when a motion is contested a single justice or judge may not dismiss or otherwise determine an appeal or other proceedings. A single justice or judge may rule on opposed motions otherwise subject to action by the clerk under Rule 27(b).

(d)Form and Number of Conventionally Filed Papers. all papers relating to motions shall be typewritten or printed and all exhibits and other attachments shall be securely bound. An original and four (4) copies shall be filed with the clerk of the Supreme Court. The Supreme Court or the Court of Appeals may require that additional copies be furnished.

(e)Oral Argument Not Permitted. Unless otherwise ordered by the court to which the case is assigned, no motion shall be orally argued. If the appropriate court requests oral argument, the matter will be heard at such time as the court may designate with reasonable notice to the parties.

(f)Motions Proposing Adoption, Repeal, or Amendment of Rules of Court and Rules Governing the Practice of Law. All applications concerning the adoption, repeal, or amendment of the Mississippi Rules of Civil Procedure, Rules of Evidence, Rules of Appellate Procedure, Rules of Criminal Procedure, Uniform Civil Circuit and County Court Rules, Uniform Chancery Court Rules, Uniform Rules of Procedure for Justice Court, Code of Judicial Conduct, Rules of the Commission on Judicial Performance, Rules and Regulations for Mandatory Continuing Judicial Education, Rules of Professional Conduct, Rules ofDiscipline for the Mississippi Bar, Rules and Regulations for Mandatory Continuing Legal Education, Rules Governing Admission to the Mississippi Bar, and all other rules affecting the practice oflaw and the administration of the courts in Mississippi shall be filed in the Supreme Court. Such motions shall comply with all other requirements of the Mississippi Rules of Appellate Procedure; specifically, four ( 4) copies shall be filed with the original, but the Supreme Court may require that additional copies be furnished. Such motions should include the text of the proposed new rule or of the rule to be amended with deletions indicated by strikeouts and additions shown underlined. The motions shall also be accompanied by a copy of the motion and of the proposed rule or rule amendment in an electronically formatted medium (such as USB Flash Drive or CD-ROM). No notice or response to such motion shall be required, except as may be required by the Court, but the Court may in its discretion submit any rules motion to the Supreme Court Rules Advisory Committee, or any other source, for review and comment. Upon receipt of requests or petitions for adoption or amendment of rules the Court may publish the proposal or request on the Supreme Court's Internet site, and invite comment thereon. No action shall be taken by the Supreme Court on such proposal or request for a period ofthirty(30) days following the commencement of such publication, and all comments received shall be considered; however, the Court may dispense with such publication and comment in the event that the Court deems the urgency of the proposal or request prohibitive to the delay needed for publication and comment.

(g)Motions Regarding the Setting of Term and Assigning of Causes in the Trial Courts. Orders entered and other actions in the chancery and circuit courts setting terms of court and assigning causes and dockets under Miss. Code Ann. § 9-5-3 and § 9-7-3 are subject to review by the Supreme Court on petition of any judge of the district wherein such orders have been entered or such action has been taken. The setting of terms and assigning of causes and dockets in the chancery and circuit courts shall be done fairly considering the relative work loads of the judges and the right of litigants within the district to fair and reasonable access to all of the judicial officers as well as reasonable accommodation of the requests and needs of all judges within the district. Further, the assignment of cases and dockets shall be done through a systematic plan recognizing the criteria set out herein.

(h)Reconsideration on Motions. Motions for reconsideration, vacation or modification of rulings of the Supreme Court and the Court of Appeals on motions are generally not allowed. However motions for reconsideration of rulings on motions and petitions may be filed within 14 days after a decision is handed down on the motion to be reconsidered as to:

(1) non-voluntary dismissal of pending appeals under rule 2(a);

(2) procedural dispositions by the Clerk of the Court under Rule 27(b);

(3) petitions for interlocutory appeal under Rule 5;

(4) motions for stay and supersedeas under Rule 8;

(5) petitions for writ of mandamus, prohibition or extraordinary writs under Rule 21;

(6) motions to amend, correct or clarify orders, opinions, and mandates;

(7) motions for recusal of justices or judges or review of ruling of trial judges on recusal under M.R.A.P. 48B or 48C; and

(8) in extraordinary cases, by suspension of the rules for good cause shown under Rule 2(c).

Miss. R. App. P. 27

Adopted to govern matters filed on or after 1/1/1995; amended 10/15/1998, effective from and after1/1/1999; amended 7/1/1999; amended effective August, 1999; amended effective 11/2/2000; amended effective 5/29/2003 to provide for reconsideration of certain specific types of motions and petitions, if filed within 14 days following the ruling for which reconsideration is sought; amended effective 9/30/2004 to recognize that the Court may from time to time allow the clerk to rule on specified motions; amended 3/20/2008, to expand the provision under which the Court may post proposals for public comment; amended effective 7/1/2010; amended May 15, 2017, effective 7/1/2017; amended October 17, 2018, effective 10/25/2018.

Advisory Committee Historical Note

Effective June 27, 2002, Rule 27(b) was amended to delete motions "to stay issuance of mandate pursuant to Rule 41 " from the list of motions on which the clerk may rule. 819- 821 So.2d XX (West Miss.Cases 2002).

Effective November 2, 2000, a new Rule 27(g) was adopted. 770-772 So.2d XVII (West Miss.Cases 2000).

Effective August 26, 1999, Rule 27(f) and the Comment were amended to provide for publication of proposals on the Supreme Court's Internet site and an attendant comment period. 736-737 So.2d XXI (West Miss.Cases 1999).

Effective June 24, 1999, Rules 27(b) and (g) were amended to effect editorial changes. 735 So.2d XIX (West Miss.Cases 1999).

Effective January 1, 1999, Rule 27(b) was amended to provide that the clerk may rule on motions to withdraw as counsel in non-capital cases, to voluntarily dismiss appeals, to obtain additional pages, to supplement the record, to appear pro hac vice, and to suspend the briefing schedule. 717-722 So.2d XXVII (West Miss.Cases 1998).

Effective January 1, 1999, Rule 27(g) was adopted and corresponding changes were made to Rule 27(c) and the Comment. 717-722 So.2d XXVII (West Miss.Cases 1998).

Effective June 21, 1996, following the redesignation of rehearing "petitions" as "motions," the Comment to Rule 27 was amended to provide that motions for rehearing cannot be considered by a single justice. 673-678 So.2d XLI (West Miss. Cases 1996).

Effective January 1, 1995, Miss. R. App. P. 27 replaced Miss. Sup. Ct. R. 27, embracing proceedings in the Court of Appeals. Rule 27 was further amended by adding subsection (f) concerning motions pertaining to Rules of Court. 644-647 So.2d LXII-LXIV (West Miss. Cases 1994).

Comment

Rule 27 is based on Fed.R.App.P. 27 as modified by 5th Cir.R. 27.

Many motions seek relief of a sort which is ordinarily unopposed, or which is granted as a matter of course. The provision of subdivision (a), which permits any party to file a response in opposition to a motion within seven days after its service, assumes that the motion is one of substance which ought not be acted upon without affording affected parties an opportunity to reply. A motion to dismiss or otherwise determine an appeal is clearly such a motion. Motions authorized by Rules 8, 9, and 41 are likewise motions of substance, but, in the nature of the relief sought, to afford an adversary an automatic delay of at least seven days is undesirable; thus, such motions may be acted upon after notice which is reasonable under the circumstances.

The term "motions for procedural orders" is used in subdivision (b) to describe motions which do not substantially affect the rights of the parties or the ultimate disposition of the appeal (other than motions for voluntary dismissal) . To prevent delay in the disposition of such motions, subdivision (b) provides that they may be acted upon immediately without awaiting a response. The rule also gives the clerk authority to dispose of certain procedural motions. An enlargement of time for filing a notice of appeal is not permitted by these rules and may not be granted by the clerk.

Subdivision (c) empowers a single justice to act upon virtually all requests for intermediate relief which may be made during the course of an appeal or other proceeding. By its terms, the justice may entertain and act upon any motion, other than a contested motion to dismiss or a contested motion that will otherwise determine an appeal or other proceeding.

Examples of the power conferred on a single justice by Rule 27(c) are: to determine any matter which, if unopposed, may be decided by the clerk under subdivision (b); to grant enlargements of time for any period beyond the 60 days granted by the clerk, except that the time period for filing a notice of appeal may not be extended, see Rules 2(c), 26(b); to permit an appeal in forma pauperis and to appoint counsel under Rule 6; to consider release in criminal cases under Rule 9; to expedite or to consolidate appeals under Rule 23; to permit the filing of further reply or supplemental briefs under Rule 28(d) or briefs of extraordinary length under Rule 28(h); to grant leave to file an amicus brief under Rule 29; to postpone oral argument under Rule 34(a) or grant additional time for oral argument under Rule 34(b); or to substitute parties under Rule 43.

Under Rule 27(c), a single justice may not act upon requests for permission to appeal under Rule 5, or for mandamus or other extraordinary writs under Rule 21, other than for stays or injunctions pending appeal, authority to grant which is "expressly conferred by these rules" on a single justice under certain circumstances under Rule 8.

Subdivision (f) sets out procedures to be followed in the adoption and amendment of rules governing practice and procedures in the courts and those specific to the practice of law. The provision of the subdivision providing for publication on the Internet and comment supercedes Misc. Order 2056 which formerly required Bar related petitions to be published in the Mississippi Lawyer with a ninety day comment period. Misc. Order 2056 was vacated by the order adoption of this provision for subdivision (f).

Rule 27(h) motions for reconsideration of the court's ruling on motions or petitions are to be distinguished from Rule 40 motions for rehearing on opinions. Motions for clarification and correction of opinions and mandates which address issues other than specific errors of law or fact which would be determinative of the decision announced in the opinion should also be filed in accordance with the procedures set out in Rule 27, not those of Rule 40.

Rule 27(h) motions for reconsideration of the court's rulings on motions are governed by and subject to the procedures set out in Rule 27. Generally, motions are decided by orders of the appellate courts.

Motions for rehearing are filed under Rule 40 and are appropriate only where an opinion has issued which the movant believes to contain specific errors of law or fact.

Reconsideration of the court's ruling on a motion or petition is allowed only as to motions and petitions specified in Rule 27(h). A brief may be filed in support of a motion and such a brief should be filed unless the motion seeks a routine procedural order. The rule does not, however, require the filing of a brief with every motion.

Rule 27(h) motions for reconsideration of the court's ruling on motions or petitions shall, whenever possible, state with particularity specific reasons, in the opinion of the movant, the court's action should be reconsidered. The motion for reconsideration is not intended to afford an opportunity for a mere repetition of the argument already considered by the court, but may contain such argument in support of the motion as movant desires to present. See M.R.A.P. 40(a).

[Comment amended June 21, 1996; October 15, 1998, effective January 1, 1999; August 26, 1999; amended effective May 29, 2003; amended May 18, 2006; amended effective August 2, 2012.]