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.

What You May Get with a Motion for Reconsideration

April 25, 2018 § Leave a comment

Continuing with yesterday’s R59 theme, we turn to the question of what, exactly, are you asking for when you make a R59 motion, and how does what you ask for shape what you’re likely to get?

It wound up being an issue for one Tracy Dixon. After the chancellor denied his request for modification, Tracy filed a “Motion for Reconsideration, Correction of Judgment, or in the Alternative for a New Trial.” The chancellor entered an order granting a new trial without ruling on the merits of any issues in the case. Without holding a new trial or hearing any further evidence, the chancellor entered a revised opinion and amended final judgment unfavorable to Tracy. He appealed.

The COA affirmed in Dixon v. Dixon, handed down February 6, 2018. Judge Wilson expounded for the 5-4 majority:

¶29. In his final issue on appeal, Tracy argues that the chancellor exceeded his authority under the Mississippi Rules of Civil Procedure by entering a revised opinion and amended final judgment. As discussed above, after the initial final judgment was entered (on February 10, 2016, nunc pro tunc January 26, 2016), Tracy filed a “Motion for Reconsideration, Correction of Judgment, Or In The Alternative For New Trial.” The chancellor then entered an order granting a “new trial,” which did not address or rule on the merits of any of the issues in the case. Finally, without holding a “new trial” or hearing any additional testimony or evidence, the chancellor entered a revised opinion and amended final judgment, which is the subject of this appeal. Tracy argues that the chancellor’s entry of a revised opinion and
amended final judgment violated Rule 59(d), which provides as follows:

Not later than ten days after entry of judgment the court may on its own initiative order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a timely motion for a new trial for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor.

M.R.C.P. 59(d). Specifically, Tracy argues that the chancellor effectively ordered a “new trial”—either sua sponte or “for a reason not stated in [Tracy’s timely] motion” for a new trial. Id. If the former, Tracy says that the chancellor violated Rule 59(d) by acting more than “ten days after entry of judgment.” Id. If the latter, Tracy says that the chancellor violated Rule 59(d) by not “giving [him] notice and an opportunity to be heard.” Id.

¶30. We conclude that Tracy has misinterpreted the case’s procedural history and the chancellor’s rulings. Tracy’s “Motion for Reconsideration” primarily sought to alter or amend the judgment in various respects—he sought to change the final judgment based on the evidence already presented, not a “new trial.” In fact, the motion’s prayer for relief did not even mention a “new trial.” Rule 59(a)-(d) governs a motion for a new trial. However, Rule 59(e) governs a motion to alter or amend the judgment.

¶31. Rule 59(e) simply provides that “[a] motion to alter or amend the judgment shall be filed not later than ten days after entry of judgment.” M.R.C.P. 59(e). Interpreting the nearly identical federal rule, [Fn omitted] federal courts have held that “[a] judge may enlarge the issues to be
considered in acting on a timely motion under Rule [59(e)].” Charles v. Daley, 799 F.2d 343, 347 (7th Cir. 1986). The court may amend any part of the judgment, and the court is not limited to the grounds raised in the motion. EEOC v. United Ass’n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of the U.S. & Canada, Local No. 120, 235 F.3d 244, 250 (6th Cir. 2000). “The salient fact is that a motion to amend judgment was timely filed. Such gave the [trial] court the power and jurisdiction to amend the judgment for any reason, if it chose to do so, and it was not limited to the ground set forth in the motion itself.” Varley v. Tampax Inc., 855 F.2d 696, 699 (10th Cir. 1988); accord Bullock v. Buck,
611 F. App’x 744, 746 n.2 (3d Cir. 2015) (“In ruling on a Rule 59(e) motion, a District Court is not limited to the grounds set forth in the motion itself.”); Walker v. Walker, 216 So. 3d 1262, 1272-74 (Ala. Ct. Civ. App. 2016).

¶32. We conclude that these decisions are consistent with our Supreme Court’s recognition of a trial court’s “broad[] discretionary authority under Rule 59(e) to grant relief.” Bruce v. Bruce, 587 So. 2d 898, 904 (Miss. 1991). Our Supreme Court has held that “[w]hen hearing a motion under Rule 59(e), a trial court proceeds de novo, if not ab initio.” Id. “Rule 59(e) provides the trial court the proverbial chance to correct its own error . . . .” Id.

¶33. Tracy’s filing of a timely motion to alter or amend the judgment under Rule 59(e) suspended the finality of the judgment and permitted the chancellor to consider the various issues in this case “de novo, if not ab initio.” Id. At that point, the chancellor had “the power and jurisdiction to amend the judgment for any reason, if it chose to do so, and it was not limited to the ground set forth in the motion itself.” Varley, 855 F.2d at 699. On appeal, we review the chancellor’s amended final judgment on its own merits.

So R 59(e) is one of those proverbial two-edged swords, kind of like asking your law-school professor to look back over your paper to see whether she could possibly find that extra point on the exam to get you that 3.0; the search might take the result in the opposite direction.

ONE MORE CONSIDERATION OF RECONSIDERATION

February 21, 2013 § 8 Comments

I posted here not too long ago about the vernacular use of “Motion for Reconsideration” as the post-trial motion that is MRCP 59.

It’s pretty widespread. I recently had a four-page post-order motion challenging a temporary ruling of mine. The motion did not invoke any MRCP at all, but every page included the words “reconsideration” or “reconsider” at least once. When I took the bench and announced that I would treat the motion as made per MRCP 59 (which was an indulgence, since I am convinced that MRCP 59 relief lies only as to final judgments; See, Trilogy Communications, Inc. v. Thomas Truck Lease, Inc., 733 So.2d 313, 317-318 (Miss.App. 1998)), the proponent lawyer corrected me and said that it was actually a MRCP 60 motion for relief from judgment. Excuse me.

Judge Southwick back in 1999 addressed the subject in the case of Barber v. Balboa Life, 47 So.2d 863 (Miss.App. 1999), where he stated in footnote 3 at page 869:

“Pursuant to Rule 59 of M.R.C.P., relief following judgment is on motion for a new trial, not on motion to reconsider. Motions to reconsider, as previously known in practice and procedure in Mississippi prior to the adoption of the Mississippi Rules of Civil Procedure, have for all purposes and intent, been abolished and superceded [sic] by the aforementioned Rule 59 of M.R.C.P. It is suggested that the appellant apply Rule 59 of M.R.C.P. in the future under similar circumstances.”

That was 14 years ago. The footnote apparently didn’t have much impact.

I think the main reason most lawyers ask for reconsideration rather than rehearing, as the rule states, is that they absolutely do not want a rehearing. I mean, who really wants to retry what one has already tried? What they want the judge to do is take another look at the facts and/or the law and render a different result. That’s what rehearing has always looked like in chancery where the fact-finder and the judge of the law are one and the same. When the trial is over the fact-finder is not scattered to the far reaches of the county, as is the case with a jury. The fact-finder is right there in in the courthouse where she rendered the judgment in the first place. And she just might realize when confronted with the motion that a different outcome might be more equitable.

But the rule expressly says “rehearing.”

We judges are supposed to look past the form to the substance. When you use confusing language and do not invoke the proper rule, at best you will confuse the judge. At worst, you may find you’ve messed up your record for appeal.

If You Want it You Have to Ask for It

February 3, 2020 § 2 Comments

Back in the day, when I was a mere tadpole of a lawyer, chancellors had broad powers to effect equitable relief. At the end of every pleading were words to the effect: “And she prays for such other and general relief as this honorable court deems mete and right in the premises,” or simply “And she prays for general relief.” Those magic words often evoked unpled-for remedies fashioned by the judge to meet and resolve the problem presented by the evidence. Lawyers (called Solicitors back in those smoke-filled days of yore) foresaw that and were not surprised or blindsided by it. It was the way chancery court business was done.

The MRCP came along in 1982 and made chancery much more like law courts, and the fact that fewer and fewer appellate judges have much chancery experience has accelerated the process. General relief is now no more than a will-o-the-wisp.

That’s the hard lesson that Cheryl Burrell learned in the chancellor’s denial of alimony and use of the former marital residence in her divorce from her adulterous husband, Geoffrey. The lesson was driven home by the COA when it affirmed in Burrell v. Burrell, decided January 7, 2020. Judge Westbrooks wrote the opinion:

¶15. Geoffrey argues that because Cheryl never requested equal or disproportionate distribution of the marital estate, permanent alimony, or spousal support in her pleadings, the court could not grant the relief. Geoffrey, however, did plead for an equitable distribution of the marital estate, which the court granted. Geoffrey further argues that the court did not err in refusing to perform an Armstrong or Cheatham analysis because neither was necessary in light of Cheryl’s non-inclusive pleading.

¶16. In Moore v. Moore, 363 So. 2d 286, 287 (Miss. 1978), the Mississippi Supreme Court rejected Mrs. Moore’s argument for reversal of a chancellor’s decree that did not include an award for permanent alimony. The Supreme Court noted that although Mrs. Moore had been
granted temporary alimony, she had “made no averment pertaining to or prayer for permanent or temporary alimony.” Id. Citing Horton v. Horton, 269 So. 2d 347 (Miss. 1972), the Mississippi Supreme Court held that “the chancellor has considerable discretion in allowing or not allowing permanent alimony, and his beneficence in granting her temporary alimony not sought in her pleadings cannot be reversible error as to her.” Moore, 363 So. 2d at 287.

¶17. Like Mrs. Moore, the record before us does not reflect any request by Cheryl, ore tenus or written, for permanent alimony or spousal support. Even Cheryl’s own pleading for reconsideration does not list alimony or spousal support as one of the issues at trial. Notwithstanding the omission, the court did grant Cheryl temporary spousal support in its temporary order. However, as its name suggests, the court’s grant of spousal support was temporary and does not entitle Cheryl to continued support.

¶18. Cheryl never requested leave to amend her complaint to include a request for alimony or spousal support. No such leave was granted, and no amendment was ever made. Thus, Cheryl was not entitled to permanent alimony or spousal support. Accordingly, we find no error with the chancery court’s decision to deny reconsideration of the award to Cheryl.

A few points:

  • If you don’t ask for it in your pleadings, you won’t get it unless you put on evidence to support that relief at trial without a sustained objection from the other side, and then follow up with a R15 motion to conform the pleadings to the proof.
  • By asking for equitable distribution himself, Geoffrey opened that door to Cheryl because when the chancellor awards Geoffrey his portion something has to be done with what is left.
  • So, what would happen if Geoffrey had asked for an award of alimony? Would that give Cheryl a vehicle to ride toward alimony for herself? No, alimony is a zero-sum game. The prayer for alimony is for the sole benefit of the pleader.
  • Although Cheryl argued that she moved ore tenus at trial for alimony, there was nothing in the record to indicate that she had. Always be aware that the most important thing you can do at trial is to make a record. I have tried cases that I knew had no chance of success with a particular chancellor, but carefully loaded up my record to win on appeal.
  • If you’re new at this, I urge you to create or steal some form divorce pleadings that ask for every conceivable form of relief: divorce; equitable distribution; alimony, lump-sum, periodic, and rehabilitative; custody; and so on. You can add or delete as necessary, but you will have everything you need as a starting point. Sometimes your client will say, “But I don’t want alimony; it will only make him mad.” You will answer, “If it’s in there we can always not pursue it or even take it out later, but if it’s not in there and you decide at trial that you want it, it may become impossible, so we’d better leave it in. Besides, we’re not in this to make him happy. We’re trying to see that you come through it okay.”

Some Useful Equitable Distribution Points

September 18, 2019 § Leave a comment

Last year’s Pettersen case caused somewhat of a ruffle among many attorneys when it affirmed a chancellor’s findings that pre-marriage assets were marital or converted to marital, and passive appreciation of pre-marital securities was also marital. One lawyer told me that he was still scratching his head over the latter.

Lost in the consternation is that the opinion by Judge Barnes includes some jewels of authority that you might find useful:

Frederick Pettersen claimed that the chancellor erred when he announced that he would not consider child support, but he never objected at trial. In ¶10, the court said, “Furthermore, this issue was not asserted in Frederick’s motion for reconsideration.” Aside from the fact that there is no such thing as a motion for reconsideration, this is a remarkable statement because it assumes that you must assert the bases for your R59 motion in the motion. In my experience, few attorneys recite more than that they want a new trial or an amendment of judgment without detailing the reasons why. R7(b) specifically states that a motion “shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” That “grounds therefor” language is pretty important, but sometimes overlooked.

As for the proper demarcation date, the court said at ¶12:

Our Court has held:

“The law in Mississippi is that the date on which assets cease to be marital and become separate assets—what we refer to as the point of demarcation—can be either the date of separation (at the earliest) or the date of divorce (at the latest).” Collins v. Collins, 112 So. 3d 428, 431-32 (¶9) (Miss. 2013). [However, a] chancellor may consider a temporary order as the line of demarcation between marital and separate property. Id. Ultimately, however, the chancellor has the discretion to draw the line of demarcation. Id. at (¶10).

Randolph v. Randolph, 199 So. 3d 1282, 1285 (¶9) (Miss. Ct. App. 2016).

At ¶18, the opinion discussed classification of assets:

¶18. Furthermore, when determining whether certain property is marital, a chancery court “must inquire whether any income or appreciation resulted from either spouse’s active efforts during the marriage.” Rhodes v. Rhodes, 52 So. 3d 430, 436 (¶20) (Miss. Ct. App. 2011). “If so, that income or appreciation becomes part of the marital estate.” Id.

In ¶19, the court rejected Frederick’s argument that his wife, Audrey, was not entitled to any of his retirement funds because of an extra-marital affair:

Moreover, a spouse’s misconduct is only one factor to consider in the division of marital assets. A chancery court “should not view equitable distribution as a means to punish the offending spouse for marital misconduct. Rather, ‘marital misconduct is a viable factor entitled to be given weight by the chancellor when the misconduct places a burden on the stability and harmony of the marital and family relationship.’” Bond v. Bond, 69 So. 3d 771, 773 (¶6) (Miss. Ct. App. 2011) (quoting Carrow v. Carrow, 642 So. 2d 901, 904-05 (Miss. 1994)).

In discussing whether pre-marital properties were properly classified, the court said at ¶23:

¶23. “Marital property is ‘anyand all property acquired or accumulated during the marriage and is subject to an equitable distribution by the chancellor.’” Mamiaro v. Mamiaro, 179 So. 3d 51, 53 (¶7) (Miss. Ct. App. 2015) (quoting Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994)). There is no dispute that these properties were acquired before the marriage. But, in discussing Ferguson, the Mississippi Supreme Court held:

Instead of looking to the bare title of a marital asset, this Court, as should the trial courts, will continue to consider all of the facts and circumstances surrounding the accumulation of the marital assets, including noneconomic contributions and factors, when deciding how the marital property should be divided under our system of equitable distribution.

Carnathan v. Carnathan, 722 So. 2d 1248, 1253 (Miss. 1998). Although Frederick argues that Audrey made no economic contribution to these properties, he acknowledges that Audrey helped prepare balance sheets with respect to the rental properties for a period of time during their marriage. We find, therefore, that the chancery court’s awarding her ten percent of the properties’ value was not an abuse of discretion.

And the court reminded us of the definition of commingling:

¶26. “Commingled property is a combination of marital and non-marital property[,] which loses its status as non-marital property as a result.” Maslowski v. Maslowski, 655 So. 2d 18, 20 (Miss. 1995).

Finally, the opinion considered Frederick’s argument that he used non-marital funds to purchase an asset, so it should be a “mixed asset” with greatly reduced equitable distribution to Audrey:

¶29. “[A] presumption of marital property arises to any property acquired during the marriage.” Maslowski, 655 So. 2d at 20. The chancellor properly considered the applicable Ferguson factors, finding: (1) the property was acquired during the marriage; (2) Audrey had “substantially contributed to this property by serving as bookkeeper”; and (3) Frederick had managed the subject property during the separation and continues to do so. Therefore, we find no merit to this issue.

When an Untimely Post-Trial Motion Results in a Timely Appeal

September 17, 2019 § Leave a comment

If you file a motion for a new trial later than ten days after the judgment is entered and the other side does not object, allowing the judge to rule on the motion, does your motion for a new trial toll the time to appeal?

Yes, said the COA in the case of Brown v. Blue Cane Water Assoc., et al., decided June 4, 2019. This is how Judge McDonald’s opinion addressed the issue:

¶21. Although the parties do not raise the issue, this Court must first determine that it has jurisdiction to consider this appeal. Hamilton v. Southwire Co., 191 So. 3d 1275, 1279 (¶15) (Miss. Ct. App. 2016); Gallagher v. City of Waveland, 182 So. 3d 471, 474 (¶13) (Miss. Ct. App. 2015). After reviewing when the final judgment, the motion for a new trial, and the notice of appeal were filed and recent precedent, we determine that we do have jurisdiction to consider the merits of the issues on appeal. In the past, we had strictly enforced the time limits for filing appeals in cases where post-trial motions are not timely filed. But these rules have been relaxed.

¶22. Mississippi Rule of Appellate Procedure 4(a) states that “the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within thirty days after the date of entry of the judgment or order appealed from.” M.R.A.P 4(a). Certain post-trial motions will toll this thirty-day deadline, including a motion for a new trial filed under Mississippi Rule of Civil Procedure 59. (The law had once provided that the extension of time to appeal operates only if the post-trial motion itself is timely filed. Brand v. Barr, 980 So. 2d 965, 962 (¶¶10-11) (Miss. Ct. App. 2008).) Under Rule 59(e), motions for a new trial must be filed within ten (10) days of the judgment. Moreover, a paper is not “filed” until the clerk actually receives it. Bolton v. Illinois Cent. R.R. Co., 218 So. 3d 311, 313 (¶8) (Miss. Ct. App. 2017). In Byrd v. Biloxi Regional Medical Center, 722 So. 2d 166, 168-69 (¶12) (Miss. Ct. App. 1998), we held that “an untimely filed Motion for Reconsideration will not excuse an untimely Notice of Appeal, and clearly will not create or confer jurisdiction in this court.”

¶23. The Mississippi Supreme Court relaxed this strict enforcement in Wilburn v. Wilburn, 991 So. 2d 1185 (Miss. 2008). In that case, the chancery court issued its modification order on June 1, 2007. Wilburn, 991 So. 2d at 1191 (¶12). Counting weekends, the response was due on June 11, 2007. Id. The ex-wife filed a “Motion for Reconsideration” one day later on June 12, 2007. Id. The motion was denied and timely appealed. Id. at 1190 (¶8). The Mississippi Supreme Court applied established precedent and found that the motion for reconsideration was untimely. But the Court further found that because the husband did not object to the timeliness of the motion when it was before the chancery court, he was procedurally barred from raising the issue for the first time on appeal. Id. at 1191 (¶13). The Court proceeded to consider the appeal on its merits. Id. at 1192 (¶14).

¶24. We recently applied Wilburn in Massey v. Oasis Health & Rehab of Yazoo City LLC, No. 2017-CA-00086-COA, 2018 WL 4204207 (Miss. Ct. App. Sept. 4, 2018). In Massey the circuit court granted a motion to compel arbitration on November 9, 2016. Id. at *4 (¶11). Massey filed a motion to alter or amend the judgment under Rule 59 on November 22, 2016—one day late. Id. at *5 (¶16). Massey’s motion was denied and appealed within thirty days of the denial. Id. at (¶17). We reviewed prior cases that dealt with the timeliness of an appeal when a motion for new trial or reconsideration was not timely filed in the court below. Id. We noted the Mississippi Supreme Court’s ruling in Wilburn v. Wilburn, supra,
which created an exception to the bar of hearing an appeal if the timeliness of a post-trial Rule 59 motion is not challenged before the trial court. Id. at *6 (¶18). Following these precedents in Massey, we held:

Here, just as in Wilburn, Massey filed his Rule 59 motion one day too late, and Oasis responded to the motion on the merits—without objecting to the motion as untimely. After the circuit court denied Massey’s Rule 59 motion, Massey filed a notice of appeal. Just as in Wilburn, Massey filed his notice of appeal within thirty days of the order denying his Rule 59 motion, but more than sixty days after entry of the underlying order. As to the issue of appellate jurisdiction, there is no material difference between this case and Wilburn. Under Wilburn, we have jurisdiction to address the appeal and the merits of the underlying order compelling arbitration.

Massey, 2018 WL 4204207, at *6 (¶20). The special concurrence in Massey noted a similar holding found in Carter v. Carter, 204 So. 3d 747 (Miss. 2016), that the lack of an objection to an untimely Rule 59 motion procedurally bars an appellee from raising the issue of timeliness on appeal. Massey, 2018 WL 4204208, at *15 (¶59) (Greenlee, J., specially concurring). The concurrence pointed out that the Carter decision cited federal case law, saying:

Our supreme court seems to recognize, as the United States Supreme Court did in Bowles, [Fn 4] that “procedural rules adopted by the Court for the orderly transaction of its business are not jurisdictional and can be relaxed by the Court in the exercise of its discretion . . . .” Bowles, 551 U.S. at 212, (quoting Schacht v. United States, 398 U.S. 58, 64 (1970)). New Mississippi ground is being broken. . . .

Massey, 2018 WL 4204207, at *15 (¶61) (Greenlee, J., specially concurring).

[Fn 4] Bowles v. Russell, 551 U.S. 205 (2007)

¶25. In this case, the final judgment was signed on December 15, 2017, and filed with the clerk on December 18, 2017. The Browns had ten days to file their motion for a new trial (i.e., December 28, 2017). Browns’ counsel indicated in his certificate of service that he served the motion on Blue Cane’s counsel by mail on December 27, 2017 (a Thursday). But the clerk did not file the motion until January 3, 2018, which was seven days later and sixteen days after the judgment was filed.

¶26. Blue Cane responded to the motion for a new trial but did not challenge its untimely filing. On January 23, 2018, the chancery court denied the motion for a new trial in an order filed with the clerk on January 26, 2018. A notice of appeal was filed on February 2, 2018. Both Wilburn and Massey are directly on point. Although the Browns’ Rule 59 motion was not timely, Blue Cane did not object. Pursuant to Massey and Wilburn, we find that we do have jurisdiction to proceed to a ruling on the merits.

Two thoughts:

  • “A paper is not filed until the clerk actually receives it.” Crucial point. In paper-filing districts, the motion is not filed until the clerk enters it on the docket, per MRCP 79(a). Mailing it to the clerk, or even handing it to the clerk, does not accomplish this. MEC overcomes this problem.
  • Sometimes we go along in order to get along. Your pal, hunting buddy, and fellow church member, who happens to be opposing counsel, approaches you and says, “Man, I screwed up and filed that R59 motion a day late; I hope you’ll give me a pass on that so I won’t look bad.” You could say “<wink> <wink> Sure, pal, no problem, I know you’d do the same for me.” But it would be more in line with your professional responsibility to your client to say, “I hate that for you, but I have to object to timeliness to protect my client; I hope you understand.”

Late to the Party

July 30, 2019 § Leave a comment

Terrie Singleton and Orlando Buford had a son together. Orlando filed an action in chancery seeking custody of the child. On the day set for hearing Terrie failed to appear, and, based on the undisputed testimony of Orlando and his mother, he was granted custody.

Neither Terrie nor her attorney appeared because the attorney had calendered the case for the wrong date. Later that day the attorney discovered the error and asked for a continuance, which was denied. The attorney then filed a “motion for reconsideration” even before the judgment was entered, followed by a motion for new trial “or reconsideration” seven days after the judgment was entered. The chancellor denied the relief and Terrie appealed.

In Singleton v. Buford the COA reversed and remanded in a decision rendered June 18, 2019. Judge Jack Wilson’s opinion for the majority devoted considerable attention to whether Terrie’s post-trial motion were for R59 or R60 relief, and then turned its attention to whether the chancellor abused his discretion in not granting rehearing:

¶18. On the facts of this case, we cannot avoid the conclusion that the chancery court abused its discretion by denying Singleton’s motion for reconsideration or a new trial. [Fn omitted] A child custody case involves more than just the competing interests of ordinary civil litigants. As this Court has explained,

It passes without citation that, in child custody cases, the paramount consideration is the best interest of the child. . . . Certainly, a more prudent determination of custody may be made when based upon evidence presented from both parents rather than evidence presented by only one. Where a chancellor has the opportunity to consider the argument of both parents, the facts and circumstances affecting his determination are presumably more fully developed. It follows that a chancellor is able to make a more informed decision, thereby ensuring to a higher degree of certainty that the best interest of the child is met.

Wade v. Wade, 967 So. 2d 682, 684 (¶8) (Miss. Ct. App. 2007).

¶19. Wade’s discussion of this issue is sound, and it applies directly to the facts of this case. There was no persuasive reason not to allow Singleton to present evidence and provide the court with additional information relevant to the custody determination. Allowing her to present evidence would have allowed the chancellor “to make a more informed decision, thereby ensuring a higher degree of certainty that the best interest of the child is met.” Id. And on the other side of the balance, the need for “[f]inality of judgments as a policy reason for denial is not nearly so strong” when a motion is filed within ten days of the judgment. Bruce, 587 So. 2d at 904. On these facts, we hold that the chancery court abused its discretion by relying on the “need to achieve finality in litigation” [Fn 7] and by denying Singleton’s motion.

[Fn 7] As noted above, the chancery court relied on Stringfellow v. Stringfellow, 451 So. 2d 219 (Miss. 1984), for this proposition. Stringfellow was a Rule 60(b) case involving issues of alimony and property division, and its facts bear little resemblance to the instant case. In Stringfellow, the chancery court held a hearing on alimony and property division, both sides presented evidence, and the court entered a final judgment. Id. at 220. The exwife later filed a Rule 60(b) motion in which she alleged that her ex-husband committed a fraud on the court, but the Supreme Court found no evidence of that. Id. at 222. The exwife also alleged that her lawyer failed to conduct adequate discovery, but the Supreme Court held that, without more, attorney incompetence “does not give rise to Rule 60(b)(2) relief.” Id.

¶20. We emphasize that a legal determination that a trial judge committed an abuse of discretion “does not ‘imply bad faith or an intentional wrong on the part of the trial judge.’” Sanford v. Dudley, 196 So. 3d 1106, 1112 (¶19) (Miss. Ct. App. 2016) (brackets omitted) (quoting White v. State, 742 So. 2d 1126, 1136 (¶42) (Miss. 1999)). Rather, “an abuse of discretion is viewed as a strict legal term.” Id. (quoting White, 742 So. 2d at 1136 (¶42)). As our Supreme Court has explained,

[J]udicial discretion is not boundless but is defined as a sound judgment which is not exercised arbitrarily, but with regard to what is right and equitable in circumstances and law, and which is directed by the reasoning conscience of the trial judge to just result. An abuse of discretion means clearly against logic and effect of such facts as are presented in support of the application or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing.

Douglas v. Burley, 134 So. 3d 692, 697 (¶13) (Miss. 2012) (citations and quotation marks omitted). On the facts of this child custody case, there simply was no “sound” reason for denying Singleton’s motion. As a result, the denial was arbitrary and an abuse of discretion.

Carlton dissented, joined by Barnes and Greenlee. They would have ruled that Singleton failed to meet her burden of proof for relief under R59.

This is one of those haunting scenarios that recur in lawyers’ nightmares. Sometimes, though, there is more to the story than meets the eye on appeal. If the lawyer were habitually late or absent, the judge may have drawn a line. If so, the better practice would have been to include that in the order denying the motion. I’m not saying that was a factor in this particular case, but if it were the judge’s action is more understandable.

Asking for a Change of Mind

May 7, 2019 § 2 Comments

After the trial court denied her petition for modification of custody, Joni Warner filed something she called a Motion for Reconsideration. As I have posted here before, there is no such thing as a motion for reconsideration under the MRCP, and the use of that term poses a challenge not only to the trial court that is called upon to rule on it, but also to the reviewing court that is called upon to figure out the legal standard by which to assess the trial court’s ruling.

In Warner v. Thomas, decided March 19, 2019, the COA affirmed the trial court and fleshed out the confusion that is reconsideration. Judge McDonald wrote for a unanimous court:

A. Motion for Reconsideration

¶27. After the trial court denied the petition for modification, Warner filed a motion for reconsideration, making substantially the same arguments she made in her Petition but adding that the evidence merited a finding under section 93-5-24(9) that Thomas had a “history of perpetuating family violence” and should not enjoy joint custody. Under the Rules of Civil Procedure, the motion for reconsideration technically no longer exists. See Maness v. K&A Enters. of Miss. LLC, 250 So. 3d 402, 419 (¶68) (Miss. 2018) (Maxwell, J., specially concurring and joined by four other justices). Warner’s motion to reconsider could be construed as a Rule 60(b)(3) motion because Warner claimed in her motion for a new trial under Rule 59 that she had located a witness who could provide testimony about the basketball incident. However, under Rule 60(b)(3), it must also be alleged and shown that the newly discovered evidence could not have been discovered by due diligence. “[N]ew evidence is ‘evidence in existence of which a party was excusably ignorant, discovered after trial.’” Dean v. Slade, 164 So. 3d 468, 473 (¶14) (Miss. Ct. App. 2014) (quoting Page v. Siemens Energy & Automation Inc., 728 So. 2d 1075, 1079 (¶12) (Miss. 1998)). Warner’s motion was silent about the identity of the witness and the content of that witness’s testimony. More importantly, the motion is silent about why Warner could not have found the witness earlier. She acknowledges in her brief that she only sought an impartial witness to the basketball incident after the trial court had ruled that no such witness had testified. Warner should have anticipated the need for such a witness and only acted when the trial court noted her lack of evidence. Without a showing that the new evidence was substantive and a good reason why Warner was ignorant of it prior to the August hearing, the trial court properly denied Warner’s post-trial motions under Rule 60(b)(3).

B. Motion for New Trial

¶28. With respect to the trial court’s ruling under Rule 59, we have stated that the chancery court’s authority to modify the final judgment is “limited” by Rule 59, and it is a “higher” standard than under Rule 54(b), which allows a trial court to set aside interlocutory decisions for any reason it sees just. Dissolution of Pevey v. Pevey, 2017-CA-01144-COA, 2018 WL 4089685, at *1 (¶5) (Miss. Ct. App. Aug. 28, 2018); Maness, 250 So. 3d at 419 (¶¶69, 71). A party may only obtain relief on a motion for new trial upon showing: (1) an intervening change in controlling law, (2) availability of new evidence not previously available, or (3) the need to correct a clear error of law or to prevent manifest injustice. Miller v. Smith, 229 So. 3d 148, 154-55 (¶28) (Miss. Ct. App. 2016). To grant the motion under Rule 59, the chancery court need only be “convinced that a mistake of law or fact has been made, or that injustice would attend allowing the judgment to stand.” See Pevey, 2018 WL 4089685, at *2 (¶6); Maness, 250 So. 3d at 419 (¶69).

¶29. The appellate court reviews a trial court’s denial of a motion for a new trial for abuse of discretion. Miller, 229 So. 3d at 154 (¶27); McLaughlin., 249 So. 3d at 1084 (¶8). In the “Order Denying the Motion for Reconsideration” the trial court made specific factual findings on the proof Warner provided to show that Thomas did not have a “history of perpetrating family violence.” It found that the “Domestic Abuse and Protective Orders” and Warner’s testimony about Thomas’s slapping the child was countered by Thomas and his mother’s testimony. It found that there was no serious injury caused and this single incident did not constitute a “history of perpetrating violence” to trigger a presumption against continuing joint custody between the parties. We find that the trial court applied the proper legal analysis in determining that there was no basis for a new trial, and thus it did not abuse its discretion. See Lee v. Lee, 154 So. 3d 904, 909 (¶¶25-26) (Miss. Ct. App. 2014).

A post on Maness is at this link.

 

The Scope of Rule 59

April 8, 2019 § Leave a comment

MRCP 59 allows the chancellor to grant a new trial as to all or some issues in a case “for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.”

When granted, the chancellor may open the judgment “if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.”

The COA discussed the scope of a R59 ruling in its March 19, 2019, ruling in Warner v. Thomas. Judge McDonald wrote for the unanimous court:

¶28. With respect to the trial court’s ruling under Rule 59, we have stated that the chancery court’s authority to modify the final judgment is “limited” by Rule 59, and it is a “higher” standard than under Rule 54(b), which allows a trial court to set aside interlocutory decisions for any reason it sees just. Dissolution of Pevey v. Pevey, 2017-CA-01144-COA, 2018 WL 4089685, at *1 (¶5) (Miss. Ct. App. Aug. 28, 2018); Maness [v. K&A Enters. of Miss. LLC], 250 So. 3d [402] at 419 (¶¶69, 71) [(Miss. 2018)]. A party may only obtain relief on a motion for new trial upon showing: (1) an intervening change in controlling law, (2) availability of new evidence not previously available, or (3) the need to correct a clear error of law or to prevent manifest injustice. Miller v. Smith, 229 So. 3d 148, 154-55 (¶28) (Miss. Ct. App. 2016). To grant the motion under Rule 59, the chancery court need only be “convinced that a mistake of law or fact has been made, or that injustice would attend allowing the judgment to stand.” See Pevey, 2018 WL 4089685, at *2 (¶6); Maness, 250 So. 3d at 419 (¶69).

¶29. The appellate court reviews a trial court’s denial of a motion for a new trial for abuse of discretion. Miller, 229 So. 3d at 154 (¶27); McLaughlin [v. N. Drew Freight, Inc.], 249 So. 3d [1081] at 1084 (¶8) [(Miss Ct. App. 2018)]  . . .

The portion of R54 referred to above reads this way:

(b) . . . any order or other form of decision, however designated, which adjudicates fewer than all of the claims[,] or rights and liabilities of fewer than all the parties[,] shall not terminate the action as to any of the claims or parties[,] and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

So an R59 motion requires more than just asking the judge for a do-over. You have to have evidence or law that would have changed the outcome were it known at the time of hearing, and it was not known either because the law changed or evidence previously unknown after due diligence has come to light. You may also prevail by convincing the judge that she made a mistake of law or fact, or that the judgment creates an injustice; good luck with that.

The COA casts the issue thus: “Did the trial court err in denying the motion for reconsideration and/or motion for new trial [My emphasis]. The term “reconsideration” has been linked to R59 so often that, in my opinion, it has risen from the level of colloquialism to the point that we should seriously consider inserting it into the rule. Lawyers almost unanimously refer to the motion as one for “reconsideration.” The COA, as it did in this case, frequently uses that nomenclature for the motion. I have not searched carefully, but I believe the MSSC did also in a decision handed down last year. You can search the term in my Search box above and see how I have pushed against it. Even the Advisory Committee Notes point out that there is no such thing as a motion for consideration. Yet, the beat goes on. Maybe it’s just time to add it in and live with it.

How You Name Your Pleadings Can Matter

December 4, 2018 § 1 Comment

Shortly after adoption of the MRCP the MSSC ruled that judges were to look past the form of motions and pleadings and were to consider the substance. Meaning that you could style a complaint as an “Application” or an answer as a “Response,” and the judge is supposed to treat it as its substance requires.

That’s a pretty harmless concept on the face of it, and it would seem to promote justice over formality. For lawyers who get too loosey-goosey with their filings, though, it can create some possibly damaging mischief.

A particular species of this problem is ambiguous labeling, such as occurs when lawyers file a “Motion to Reconsider” without specifying which rule they are invoking. You see, there is no such thing under the MRCP as “reconsideration,” and using that term without more throws into the judge’s lap the issue of how to treat it. In a specially-concurring opinion in Maness v. K&A Enterp, decided August 9, 2018, by the MSSC, Justice Maxwell eloquently described the how this can come back to bite you:

¶67. I write separately to address the Manesses’ so-called motions “for reconsideration.” While a harmless issue here, this case illustrates the confusion often created by such motions.

¶68. Technically, “[t]he Mississippi Rules of Civil Procedure do not provide for a motion for reconsideration.” McBride v. McBride, 110 So. 3d 356, 359 (Miss. Ct. App. 2013). Rule 54(b) does makes clear that a decision, order, or judgment that disposes of less than all claims by all parties is interlocutory and therefore “is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” Miss. R. Civ. P. 54(b). But once a judgment becomes final, the trial court loses its inherent “free[dom] to reconsider and reverse its decision for any reason it deems sufficient[.]” Cabral v. Brennan, 853 F.3d 763, 766 n.3 (5th Cir. 2017) (quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1075 n.14 (5th Cir. 1994) (en banc)).

¶69. Instead, the trial court’s power to modify a final judgment is limited by Rules 59 and 60. See Miss. R. Civ. P. 59, 60. Under Rule 59, the trial court may grant a new trial or alter the judgment “if convinced that a mistake of law or fact has been made, or that injustice would attend allowing the judgment to stand.” McNeese v. McNeese, 119 So. 3d 264, 272 (Miss. 2013). The trial court may also grant a new trial under Rule 59(a) based on newly discovered evidence. Id. Under Rule 60(a), the trial court may correct “[c]lerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission . . . .” Miss. R. Civ. P. 60(a). And under Rule 60(b), a trial court, upon motion,
“may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons”:

(1) fraud, misrepresentation, or other misconduct of an adverse party;

(2) accident or mistake;

(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;

(6) any other reason justifying relief from the judgment. [Fn 13]

Miss. R. Civ. P. 60(b).

[Fn 13] Though, at first blush, Rule 60(b)(6) could be construed as empowering trial courts to reconsider their prior judgments for “any other reason,” we have been clear that “[r]elief under Rule 60(b)(6) is reserved for extraordinary and compelling circumstances.” Briney
v. U.S. Fid. & Guar. Co., 714 So. 2d 962, 966 (Miss. 1998) (citations omitted).

¶70. To be granted any of the above relief requires more than mere “reconsideration.” Yet over the years, Mississippi practitioners have filed a slew of post-trial motions generically titled “motions to reconsider.” McBride, 110 So. 3d at 359-60. And once filed, courts are left to decipher what type of motion is actually being filed based on the timing and the substance of the request. A Rule 54(b) motion to revise an interlocutory order? A Rule 59(e) motion to alter or amend a final judgment? A Rule 59(a) motion for a new trial? A Rule 60(a) motion to correct an omission or clerical mistake? Or a Rule 60(b) motion for relief from a final judgment? See, e.g., City of Jackson v. Jackson Oaks Ltd. P’ship, 792 So. 2d 983, 984-85 (Miss. 2001) (holding that the trial court erred by failing to treat a party’s postjudgment motion, which was filed after the time limitation to file a Rule 59(e) motion, as a Rule 60(b) motion); Woods v. Victory Mktg., LLC, 111 So. 3d 1234, 1236 (Miss. Ct. App. 2013) (“The timing of the motion for reconsideration determines whether it is a Rule 59 or Rule 60(b) motion.”).

¶71. That is exactly what the chancellor had to do here. Faced with a “Supplemental Motion to Reconsider” and a “Motion to Reconsider,” it is understandable that the chancellor treated the Manesses’ motion as a Rule 59(e) motion to alter or amend, given that they put forth the reasons for granting a Rule 59(e) motion as justification for setting aside the grants of partial summary judgment. But, as the Manesses point out on appeal, a partial grant of summary judgment is a nonfinal order. And under Rule 54(b), the trial court may always set aside a nonfinal decision for any reason it deems just. Cabral, 853 F.3d at 766 n.3 (“[T]he higher standard in Rule 59(e) reflects the fact that judgment has already been entered, while the `more flexible’ Rule 54(b) standard reflects the district court’s inherent power to grant relief from interlocutory orders `as justice requires.'” (quoting Cobell v. Jewell, 802 F.3d 12, 25-26 (D.C. Cir. 2015))).

¶72. So the Manesses are right. The trial judge could have “reconsidered” his interlocutory decision to grant partial summary judgment without requiring the Manesses to meet the more “exacting” standard of Rule 59(e). Cabral, 853 F.3d at 766. But in this case, I fail to see how the motion misidentification prejudiced the Manesses. Like the appellants in the case they rely on, Cabral, the Manesses “do[ ] not explain how [they] could have been harmed by the procedural error.” Id. Beyond pointing out the trial court applied a more rigorous Rule 59(e) standard to a Rule 54(b) motion, they fail to demonstrate how the trial court’s applying the correct standard would have led to a different outcome. Indisputably, K&A was entitled to summary judgment on the issues of liability and damages. So the trial court could hardly be held in error for refusing to revisit these decisions prior to their becoming final.

¶73. Here, the Manesses’ using the Rule 59(e) standard to argue a Rule 54(b) motion led to harmless procedural error. But that may not hold true for every so-called “motion for reconsideration.” Motions for relief under Rules 54(b), 59(a), 59(e), 60(a), and 60(b) are not interchangeable. And courtroom lawyers would be wise not only to appreciate the differences between these rules but also label their motions according to the precise relief they seek.

For a number of posts where I have talked about this issue, enter the word “reconsideration” in the search box above.

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