Properly Pleading a Rule 59 Motion
January 10, 2017 § 1 Comment
A party wishes to ask the court for a new trial, and files the following within ten days of entry of the final judgment:
“Comes now the plaintiff, with respect to the court’s judgment rendered December 30, 2016, and moves the court for a new trial, pursuant to MRCP 59(a).”
Is that adequate?
Before we get to a response, I have to say that I have gotten motions almost identical to the language above, and no opposing party has ever raised an objection to its lack of specificity.
To me, it’s unquestionable that the motion is inadequate. That’s because of the specific language of R7(b), which states that “An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” Because R59(a) limits such a motion in chancery to ” … any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi,” at a minimum one or more of those reasons must be pled in order to meet the requirements of R7. Our case law recognizes also that the best practice is to specify all potential assignments of error in a motion for new trial, which indicates to me that the expectation is that some basis for the motion must be pled. See, Kiddy v. Lipscomb, 628 So.2d 1355, 1359 (Miss. 1993).
Rehearings in equity prior to the MRCP were granted for reasons including: matters in the record that were arguably overlooked or not adequately addressed by the court; or the court misapplied or did not follow controlling case law; or there is newly-discovered evidence or “supervening facts” that would render the court’s decree incorrect or inequitable. Griffith, Mississippi Chancery Practice, §632, 2d Ed., 1950. If your motion fits into one of those categories, then you must plead it and support it with enough facts and authority to give the trial judge a basis to rule on it.
An illustration of how the failure to properly plead a R59 motion can open a critical line of attack to the opposing party is the case of Carter v. Carter, decided by the MSSC on December 1, 2016. In that case, the trial court entered its final custody judgment, and a R59 motion was filed by the unsuccessful party 5 days afterward, well within the 10-day time required by the rule. Sixty-two days later the same party filed a “Supplemental Motion” asserting new grounds not included in the original motion. The trial judge overruled the motion. On appeal, the other side claimed that the appeal was untimely, since it was based on the grounds raised in the “Supplemental Motion,” which was filed long after the ten days post-entry of judgment had elapsed. After examining the law on the point for around eight pages, the high court ruled that the objection had been waived because no one raised it at the trial level. Bullet dodged.
The interesting thing about Carter to me is that the entire hoorah over the original motion vis a vis the “Supplemental Motion” is that it presupposes that grounds must be pled in the R59 motion. There would have been no argument about it at all if the language above were all that were required.
In the great majority of reported R59 case that I have looked at, the courts refer to the bases asserted by the movant at the trial level.
My advice:
- Raise every claim of error you can think of in your R59 motion (although failure to do so may not be fatal as to some assignments of error, as you will discover when you read the Kiddy case);
- Include some of that Griffith language in your motion, as applicable (if nothing else, it may impress someone that you are a scholar); and
- If the other side files an inadequately pled motion or attempts to raise unpled issues at hearing, by all means object and preserve your record.
The Better Chancery Practice Blog 
[…] Notwithstanding all that, I still encourage you to plead the figurative kitchen sink in your R59 motions. A post explaining my thoughts on the matter is at this link. […]