Rehearing of Rehearing (aka “Reconsideration of Reconsideration”)

December 19, 2018 § 1 Comment

You only get one shot at a R59 rehearing (aka incorrectly as “reconsideration” among many lawyers and even in many appellate court opinions).

That means that, once the chancellor has ruled on your R59 motion, you can’t file a R59 motion asking for rehearing on that motion.

Here’s how I put it in a previous post:

In the case of Edwards v. Roberts, 771 So.2d 378 (Miss. Ct. App. 2000), the COA held that there is one round of R59 motions, and only one round. You do not get to file for rehearing after the judge has ruled on the motion for rehearing. If that were not so, one could almost permanently toll the time for appeal by filing serial R59 motions after every ruling on previously-filed R59 motions, ad infinitum. There has to be finality of judgments.

And here is how the MSSC put it in the said Edwards v. Roberts:

¶ 20. Nothing in the civil rules authorizes a motion to reconsider the denial of a motion for a JNOV or for a new trial. Motions for JNOV are governed by Rule 50(b) while motions for new trials are controlled by Rule 59. Under these rules, each motion must be filed within ten days of the entry of the judgment. M.R.C.P. 50(b) & 59(b). That initial motion for a JNOV was timely filed eight days after the 1991 judgment. However, the sua sponte “motion” to reconsider the just-entered order occurred over one year after the 1991 judgment. We must decide whether once a motion under Rule 50 is filed by a litigant, then denied by the court, any window of opportunity opens for the trial judge to act on his own initiative to reconsider the denial.

¶ 21. We start with the settled law that after a motion for new trial has been denied, no right exists to file for reconsideration. We find that reasoning equally applicable to motions for JNOV. “When the procedure authorizing a motion for a new trial has been followed and, pursuant to proper notice, the parties have made their representations to the court, and the court has duly considered and made his decision upon that motion, that completes both the duty and the prerogative of the court.” Griffin v. State, 565 So.2d 545, 550 (Miss.1990) (emphasis added). In Griffin, the lower court sustained two criminal defendants’ motion for new trial as to two of the counts, and overruled as to one count. Id. at 545. The defendants fled and were captured several years later. Id. At that time the State moved to set aside the order granting a new trial. Id. The judge sustained the State’s motions because he believed that he had made an error at law in granting a new trial. Id. On appeal, the Supreme Court found that the judge had no authority to revoke his earlier order for a new trial. Id.

¶ 22. The Griffin court relied on other states that had addressed the same question. Among other authorities, the court quoted the California Supreme Court’s holding that, “It has long been the rule that ‘A final order granting or denying [a motion for a new trial], regularly made, exhausts the court’s jurisdiction, and cannot be set aside or modified by the trial court except to correct clerical error or to give relief from inadvertence….’ ” Griffin, 565 So.2d at 549 (citing Wenzoski v. Central Banking Sys., 43 Cal.3d 539, 237 Cal.Rptr. 167, 736 P.2d 753, 754 (1987)). Once a motion for new trial has been ruled upon:

[I]f the party ruled against were permitted to go beyond the rules, make a motion for reconsideration, and persuade the judge to reverse himself, the question arises, why should not the other party who is now ruled against be permitted to make a motion for re-re-consideration, asking the court to again reverse himself? … This reflection brings one to realize what an unsatisfactory situation would exist if a judge could carry in his mind indefinitely a state of uncertainty as to what the final resolution of the matter should be.

Griffin, 565 So.2d at 549–50 (citing Drury v. Lunceford, 18 Utah 2d 74, 415 P.2d 662, 663–64 (1966)).

¶ 23. Though Griffin is a criminal case, the Supreme Court’s principal authorities for holding it improper to move for reconsideration of a motion for new trial were civil cases under versions of Rule 59. The Supreme Court’s conclusion that ruling on one motion for new trial exhausts the power of the court to entertain another such motion, certainly has an impact here. Until a judgment is final, a court has the authority to amend it. Griffin v. Tall Timbers Development, Inc., 681 So.2d 546, 552 (Miss.1996). Conversely, once it is final the authority is lost. The court’s initiating it own reconsideration removes the finality of the judgment after an earlier motion was denied. That creates the same difficulties that were discussed in Griffin v. State. Just as a second motion under Rule 59(a) cannot be brought by a party after an earlier Rule 59(a) motion has been denied, neither can the trial court itself entertain its own reconsideration under Rule 59(d) or Rule 50(b).

¶ 24. This is not to say that the finality of the judgment created by the denial of the first motion for new trial is absolutely unchangeable. Griffin v. State itself says that one last tool remains—correcting clerical error, relieving inadvertence, responding to newly discovered evidence, or otherwise considering the grounds for a Rule 60 motion. Griffin, 565 So.2d at 549. Since the state and federal versions of Rule 60 are similar, we can seek a better understanding of what can be achieved under Rule 60 by examining an explanation of federal caselaw. The Mississippi Supreme Court has said “the federal construction of the counterpart rule will be ‘persuasive of what our construction of our similarly worded rule ought to be.’ ” Bruce v. Bruce, 587 So.2d 898, 903 (Miss.1991) (citation omitted). The following section of an eminent treatise on the federal rules first explains that a denial of a new trial motion cannot be reconsidered, and then suggests what remains:

Term time as both a grant and limitation upon the district court’s power over its final judgments has been eliminated. [Fn omitted] In lieu thereof and in the interest of judgment finality a short time period, that is not subject to enlargement, has been substituted, within which a party may move for a new trial or to alter or amend the judgment. When the court has decided such a motion in a way that the finality of the judgment has been restored, then relief, if any, should come by appeal or by a motion under Rule 60(b), which does not affect the finality of the judgment or suspend its operation. It would be destructive of the general aim of the Rules to permit successive attacks upon final judgments on motions to reconsider orders that deny new trial, or that deny or grant an alteration or amendment of the judgment.

6A JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 59.13[1], at 59–278 (2d ed.1993) (emphasis added).

¶ 25. The relevant motion here was not a Rule 50(b) motion for a JNOV, since that motion had already been denied and there cannot be a second such motion. Instead, this was at best a Rule 60 motion initiated by the judge himself soon after he entered the February 24 judgment. There is no counterpart in Rule 60(b) to what is set out in Rule 59(d), namely, that the trial court itself may initiate a motion. In one somewhat distinguishable case, the Supreme Court held that a trial judge could not on his own motion grant relief from judgment under Rule 60(b). State ex rel. Mississippi Bureau of Narcotics v. One Chevrolet Nova Automobile, 573 So.2d 787, 789 (Miss.1990). However, that was a judge’s sua sponte setting aside of a Rule 55 default judgment five years after the default had been granted. Id. at 788–89. The court stated that no motion was made by any party to set aside the five year old default and the judge could not himself do so. Id. at 789.

¶ 26. What we find more in point is the general interpretation of federal Rule 60(b) that “the court has power to act in the interest of justice in an unusual case in which its attention has been directed to the necessity for relief by means other than a motion.” CHARLES ALLAN WRIGHT AND ARTHUR R. MILLER AND MARY KAY KANE, FEDERAL PRAC. & PROC. 226 § 2865 (2d ed.1973). If within three days of the February 24 order the trial judge became aware of something that he thought was cognizable under Rule 60, then the absence of a motion might not by itself bar consideration. Griffin v. State in dicta recognizes the right to correct inadvertent error. Griffin, 565 So.2d at 549.

¶ 27. We now look at what grounds for relief were appropriate. There are two sections to Rule 60 that allow relief from judgment. The first is for clerical mistakes, which may be corrected on the court’s own initiative. M.R.C.P. 60(a). However, this rule “can be utilized only to make the judgment or other document speak the truth; it cannot be used to make it say something other than was originally pronounced.” M.R.C.P. 60(a) cmt. The trial judge cannot on his own initiative change his mind and decide under Rule 60(a) that he should have granted the motion for JNOV instead of denying it. However, the rules seemingly permit a judge to decide that he always meant to sign an order that granted a motion but inadvertently signed a draft order denying it. This is the specific issue of Rule 60(b)(2), which is relief from judgment because of “accident or mistake.” …

¶ 28. Under Rule 60(b), the trial court on perhaps his own motion may decide that the original motion was entered by mistake, fraud of a party, or for other reason justifying relief from judgment. M.R.C.P. 60(b). Had the trial court believed that one of the grounds for Rule 60(b) existed and explained which one it was, then we could evaluate the validity of the exercise of discretion on February 27. Instead, the trial judge has informed us that no proper Rule 60 grounds existed.

¶ 29. Before leaving the procedure that was followed, we consider the propriety of the original trial judge’s addressing in these proceedings what he had done several years earlier. In a collateral attack on a former judgment, voidness is decided solely from what appears on the face of the record. Bolls v. Sharkey, 226 So.2d 372, 376 (Miss.1969). However, in a Rule 60 claim brought before the same court and involving the same parties, evidence beyond the pleadings and order themselves can be utilized. The comment to Rule 60(a) states that evidence outside the record can be considered. M.R.C.P. 60(a) cmt. No such explicit statement appears as to Rule 60(b), but the nature of the claims that can be made would require extraneous evidence. Accident, mistake, or fraud could not be shown except in the most unusual circumstances strictly from the record. In one case evidence was introduced at a Rule 60 hearing that an automatic stay in bankruptcy had been entered before the state court judgment was entered. This made the state court order void. Overbey v. Murray, 569 So.2d 303, 307 (Miss.1990). In another Rule 60 proceeding, evidence was admitted that the named corporate plaintiff did not exist, as it had sued under an incorrect name—“Mississippi Sand & Gravel” instead of the correct “South Mississippi Sand & Gravel.” The Supreme Court declared the earlier order void and set it aside. Southern Trucking Service, Inc. v. Mississippi Sand and Gravel, Inc., 483 So.2d 321, 324 (Miss.1986). See generally, Fred L. Banks, Jr., “Trial and Post Trial Motions,” in 1 JEFFREY L. JACKSON, MISSISSIPPI CIVIL PROCEDURE §§ 13:15—13:21 (1999).

¶ 30. Though evidence outside the record is admissible, this still does not mean under Rule 60(b) the judge himself should state what his reason had been for signing an order. Had the original trial judge not been ruling on the motion, the question would even more emphatically arise of whether evidence should be sought from the issuing judge of his reason for entering an order. We defer that issue since we find that even if Judge Hilburn had not been available for an explanation, the outcome would be the same. Since a trial judge does not have the authority to reconsider his denial of a motion for a JNOV, the court’s jurisdiction was exhausted after the February 24 denial. After jurisdiction was exhausted another order appeared. That order should be viewed as were orders under pre-Rules practice that were entered after the term of court. Formerly, once the term of court ended in which the final judgment was entered, a court lost control over its judgment. McNeeley v. Blain, 255 So.2d 923 (Miss.1971). Entering a new order after the expiration of the term was a nullity. McDaniel Bros. Const. Co. v. Jordy, 254 Miss. 839, 851, 183 So.2d 501, 506 (1966). There is no need to reacquaint ourselves with the intricacies of such rules other than to note that ending the power of the trial court to issue orders in a case is not a novel idea. A court does not have jurisdiction to enter orders indefinitely. Once the case is over, as with the end of the term of court in former practice or some other terminal event as under the civil rules, later orders by the court are not presumed valid because jurisdiction facially has been lost. We find that the Supreme Court has addressed this question:

[t]he doctrine, that a judgment however erroneous of a court having jurisdiction may not be collaterally assailed, is only correct when the court proceeds, after acquiring the jurisdiction, according to established rules governing the class to which the case belongs, and does not transcend, in the extent or character of its judgment, the law which is applicable to it.

Jones’ Estate v. Culley, 242 Miss. 822, 831–832, 134 So.2d 723, 726–727 (1961).

¶ 31. Since, the present suit is not a collateral attack but a claim under Rule 60 for relief from the court that issued the order, the right to set aside the order is all the clearer.

¶ 32. In the present case the circuit court initially had jurisdiction, but after entering the denial of the motion for a JNOV, jurisdiction ended. A similar defect in a court’s ruling occurs when a judge improperly alters a criminal sentence after his jurisdiction to do so has ended. See generally, Mississippi Comm’n on Judicial Performance v. Russell, 691 So.2d 929, 937 (Miss.1997).

So, could one get relief from a R59 ruling via R52(b)? Edwards v. Roberts goes on to answer in the negative:

¶ 34. … The dissent implies that the action was under Rule 52(b). That is a Rule for amending findings, not reversing decisions. A decision that “no” should be “yes” was the difference between the February 24 and February 27 orders. Though a Rule 52(b) can be made in tandem with Rule 50 and Rule 59 motions, once those motions are denied Rule 52(b) is not a means to ask for or for a judge to initiate reconsideration. Regardless, to presume that the court was acting under this Rule after its authority had otherwise expired—and of course the trial judge has since stated that he was not—is as speculative as any other possible means to justify the second order. Under the dissent’s analysis, Rule 52(b) becomes the opening for reconsidering a denial of reconsideration that Griffin said was beyond the court’s jurisdiction.

A R59 motion in chancery court is the equivalent of a motion for JNOV in a circuit or county court jury trial. Everything above pertaining to JNOV applies equally to R59 in chancery.

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