You Still Can’t Get More Time

November 21, 2016 § Leave a comment

Only last week I posted about situations under the MRCP in which the trial court can not extend deadlines. You can read the post at this link. Among those actions are motions for rehearing under R59(b), (d), and (e).

A savvy lawyer called my attention to the case of Wright v. White, 693 So.2d 898 (Miss. 1997), which includes the following language at p. 903:

The time limit for serving a Rule 59 motion for reconsideration is 10 days after judgment, and that period may not be enlarged except by a request being made within the time period provided and such request being granted by the court. MRCP 59(e); MRCP 6(b). [Emphasis mine]

I would not rely on that language to support a request for an order granting more time for these reasons:

One, R6(b) specifically states that the trial court may extend deadlines in many instances, but ” … it may not extend the time for taking any action under Rules 50(b), 52(b), 59(b), 59(d), 59(e), 60(b), and 60(c), except to the extent and under the conditions therein stated” and

Two, the only action specified in R59 for which a deadline may be extended is the filing of opposing affidavits if the motion is supported by affidavits, as provided in R59(c) and

Three, the rule was amended in 1997 (2 months after this decision) to clarify that the R59 motion must be filed, not served, within ten days of entry of the judgment.

And, just to quibble, it’s a motion for rehearing, not for reconsideration, as we have discussed before. There is no motion for reconsideration under the MRCP.

So, can you get an order extending the time to file a R59 motion and then successfully defend it on appeal? (Remember that a timely R59 motion tolls the running of the time within which to file an appeal). In Wilburn v. Wilburn, 991 So.2d 1185, 1190-191 (Miss. 2008), the MSSC rejected the appellee’s argument that the appeal was untimely due to the untimely filing of a R59 motion. The appellee had not objected to the untimeliness at the trial level. That’s something you might want to keep in mind.

In my opinion, the very best practice is to file your R59 motion no later than 10 days after entry of the judgment, as the rule states. You are playing with fire if you procrastinate and rely on the court to enter an order for more time that in all likelihood will not be worth the paper it is printed on.

Thanks to Attorney Ben Rowley

The Better Chancery Practice Blog