Rule 5.1 Suspended
June 8, 2015 § 2 Comments
The MSSC suspended operation of MRCP 5.1 last Thursday. Here’s the text of the order:
This matter is before the en bane Court on the Court’s own motion.
On April 28, 2015, we entered an order amending the Mississippi Rules of Civil Procedure to add Rule 5 .1. The amendment became effective that same date.
After due consideration, however, we find that the April 28 order should be vacated and that Rule 5 .1 should be suspended until further order from this Court. We further find that Rule 5.1 should be struck from the rules published on the Court’s website and omitted
from the next edition of the Mississippi Rules of Court
IT IS THEREFORE ORDERED that the April 28 order adopting Rule 5 .1 is vacated, and Rule 5 .1 is suspended until further order from this Court. Rule 5 .1 shall also be struck from the rules published on the Court’s website and omitted from the next edition of the
Mississippi Rules of Court.
SO ORDERED, this the 4th day of June, 2015.
That should alleviate for now some of the anxiety among chancellors and lawyers who have been scratching their heads over how to implement the new rule in cases involving child support, custody, and myriad other types of cases involving children in counties still using paper filings.
Remember, however, that confidentiality requirements similar to 5.1 are still in effect in MEC jurisdictions.
“Quote Unquote”
June 5, 2015 § Leave a comment
“There is no true justice unless mercy is part of it.” — The Zohar
“We need to forgive and be forgiven every day, every hour increasingly. That is the great work of love among the fellowship of the weak that is the human family.” — Henri J.M. Nouwen
“If we had no faults of our own, we should not take so much pleasure in noticing those in others and judging their lives as either black or white, good or bad. We live all our lives in shades of gray.” — Shannon L. Alder
Tacking Adverse Possession
June 4, 2015 § 3 Comments
The case of Rester and Davis v. Greenleaf Resources, Inc., handed down by the COA April 7, 2015, is instructive for an aspect of adverse possession that can be overlooked.
In that case, the chancellor had ruled that Sylvia Rester and L.B. Davis had failed to meet their burden to prove the elements of adverse possession of some 19.5 acres of land by clear and convincing evidence. The COA held that the chancellor did correctly apply the law to the facts of the case, but erred by considering only the period of time when the property was owned by Greenleaf. The COA opinion, by Judge Irving, states:
¶16. After reviewing the record, we find that the trial court correctly considered the elements of adverse possession; however, it erred because it only focused on the period of time Greenleaf held title to the land. Specifically, the trial court erred when it held that “Greenleaf would have no way of knowing the Plaintiffs claimed ownership.” We point out that Greenleaf did not hold title to the land until 2004, when it purchased the land from the Crosbys. Further inquiry is crucial in determining whether the Davis family adversely possessed the disputed property at any point prior to Greenleaf’s purchase of the land.
¶17. There are several ten-year spans of time, an element of adverse possession, that need to be considered, which the trial court’s findings are silent on. Such a span begins with L.B.’s birth on the disputed property. There is testimony that the family maintained control by renting out the log cabin in their absence for a period of time. In addition, there was testimony that L.B. had worked on the fence in 1939. There is uncontradicted testimony from Herbert, who managed the property for over twenty years, that the property was on a squatters list, and that there were painted lines that were not crossed. In addition, he recalled that there was a fence, and that crops had been planted on the disputed property. Herbert’s testimony is corroborated by L.B.’s testimony. James also testified to seeing the painted lines, which Herbert described and stated he did not cross in light of the fact that the land was on the squatters list. Several other witnesses testified about crops being grown by the Davises on the disputed property and the Davises’ recreational use of the land.
¶18. We find that there was sufficient evidence produced to warrant further inquiry for the period of time prior to Greenleaf’s purchase of the disputed land. If at any point, the Davises had adversely possessed the property prior to Greenleaf’s purchase, it follows that the title that Greenleaf received could not include the disputed property, notwithstanding the fact that it may lie within the calls of its deed. To be clear, nothing in this opinion should be interpreted as holding or finding that the evidence is sufficient or insufficient to show that the Davises adversely possessed the property prior to the point in time when Greenleaf purchased it. We simply hold that the trial court erred in limiting its focus to the period of time after the date of Greenleaf’s purchase.
This holding is dictated by MCA 15-1-13(1), which sets out the period of adverse possession, and reads, in part:
Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title …
In other words: (A) any person or persons in the preceding chain of title who achieved adverse possession passes good title to the subsequent title holders; and (B) where there is privity between a party and his predecessor in title, the party is entitled to “tack” his possession to his predecessor’s so as to have ten years’ possession, despite the fact that the party has not himself been in possession ten years. Ricketts v. Simmons, 44 So.2d 537, 538 (Miss. 1950). Either situation requires the court to look at the facts of the predecessors in title, which means that it is incumbent on counsel to develop that proof at trial as was done in the trial of the Rester case. If you don’t put it in the record, the court can not consider it, and you can not prevail on appeal.
A Heartfelt Plea
June 3, 2015 § 10 Comments
I don’t usually share my personal correspondence with others, but since most of you are regular readers, I felt that it would be of some benefit to you to read this emotional email I received last week:
Dear Beloved
I write to you in good faith and hoping that you will understand the importance of my email. My decision to contact you is because I have been recently diagnosed with Cancer and the doctor said I have less than 6 weeks to live.
Since this sudden news was announced to me, I have been reflecting over my life in the past. It is painful that after over 24 years of peaceful marriage with my late husband, we had no child of our own that will inherit our numerous wealth. In the past, I have made reasonable donations to the victims of Earthquake in Haiti and recently to the same victims in Japan and Thailand. Now that my health is gradually deteriorating, I cannot continue to do all these by myself any more.
Because I have no relation, me and my husband grow up as orphans in Orphanage homes that is why I am making everything possible to make sure half of my funds go to Orphanage homes hence I can no more handle this Charity I please that you should complete this program once you receive the Funds which was deposited in Freedom Security Bank, take half of the total funds for yourself and use the half for charity and also build Charity Foundation.
I strongly desire to reach out to the poor and needy people, but I would prefer to continue this with the assistance of a kind person. I want you to answer the following questions, (1) If I donate (32.5) Thirty Tow Million five Hundred Thousand United States Dollars to you, which is all I have in this world can you be able to utilize it wisely to achieve my heart desire of supporting poor people around you? (3)Will you open a charity foundation in the name of Me and my late husband and Please reply me as soon as possible.
If you are ready get back to me with the below details.
1 your full name
2 your country name
3 your Telephone number
4 your Present Occupation
Yours Faithfully.
Mrs Ann Williams
Doesn’t that just tear at your heart?
Now, I don’t have anything against orphanages or Orphanage homes or trusts or rich people who can’t figure out how to spend their millions, but I think I’ll pass on Ms. Williams’s proposition for several reasons.
For one thing, I do not know Ms. Williams. For another, anyone who addresses me as “beloved” at one end of her correspondence and then has to ask my “full name,” country name, and occupation … well, that just kind of confuses my emotions. Her incoherent rambling does not reassure me. Oh, and this is transparently and patently a scam.
I get one or two emails like this every month. I am sure you do as well. I always think to myself “Who would be crazy enough to fall for something like this?” and then I remember that a wealthy Meridianite some years ago lost nearly $50,000 in a similar scam. He was a prominent businessman who should have known better — and didn’t need the money that was dangled before his nose — and just got greedy at the idea of money for nothing.
So, “dear beloved” readers, I encourage you to trash these easy-money emails before you, too, get burned.
Who’s to Blame?
June 2, 2015 § Leave a comment
This is from a PSA entered into between Joe Bryant and his then-wife, Adella Jones:
[Adella] will receive as property settlement[] fifty percent (50%) of [Joe’s] disposable retirement from the Unites States Marine Corps/Army National Guard and fifty percent [50%] of [Joe’s] disposable retirement from the Veterans Administration which will be paid directly to [Adella] by the United States Marine Corps/Army National Guard and the Veterans Administration.
Joe retired from the VA on November 1, 2008, and from the military on June 30, 2010, and began receiving 100% of his retirement from both. He never paid any of the amounts received to Adella.
In October, 2010, Adella submitted her application for her retirement benefits, unaware whether Joe had retired, and she began receiving her one-half in January, 2011.
After Joe had filed a futile modification action, and she learned that he had begun receiving 100% of his retirement benefits for a time before she received any, Adella filed a contempt action against Joe.
Following a trial, the chancellor ruled that it was the military, and not Joe, that was required to make the payments, and, therefore, that he was not in contempt. The judge did award Adella a judgment against Joe for one-half of the retirement he had received in the interim in the amount of $46,433. Adella appealed.
On April 7, 2015, the COA affirmed in Jones v. Bryant. Judge Carlton’s for a unanimous court explained:
¶15. In the July 2, 2013 order granting Adella’s motion to dismiss [Joe’s pleading for modification], the chancellor found that “after reviewing the property settlement agreement, . . . the provisions regarding military retirement are clear and unambiguous and should not be modified.” The chancellor later entered a final judgment on August 8, 2013, further holding that “the property settlement agreement requires Adella’s portion of the retirement to be paid by the United States Marine Corps/Army National Guard and the Veterans Administration rather than by Joe,” and as a result, “Joe is not in willful and contumacious contempt of the agreement.” We find Adella presented no evidence to support her claims that Joe willfully or intentionally violated any court order. The record reflects that the plain language of the property-settlement agreement in this case provides that Adella’s portion of Joe’s military retirement pay would be paid directly to her by the Marine Corps/Army National Guard and Veterans Administration.
¶16. The Uniformed Services Former Spouses’ Protection Act (USFSPA) provides former spouses, who are awarded a portion of military retirement pay in a divorce, with “a mechanism to enforce retired pay as property award by direct payments from the member’s retired pay.” See Defense Finance and Accounting Service, Frequently Asked Questions, http://www.dfas.mil/garnishment/usfspa/faqs.html; 10 U.S.C. § 1408 (2012). [Footnote omitted] The former spouse must complete and provide the required applications, relevant court order, and supporting documentation, as required by statute and regulations, to the designated Defense Finance and Accounting Service, and the language in the property award must also comply. [Footnote omitted]
¶17. After our review of the record, we find substantial evidence exists in the record to support the chancellor’s final judgment determining Joe was not in willful and contumacious contempt of the property-settlement agreement or any other court order. Accordingly, we also find no error in the chancellor’s denial of attorney’s fees to Adella. See Henderson v. Henderson, 952 So. 2d 273, 280 (¶23) (Miss. Ct. App. 2006).
How can you avoid a similar result for your client?
- Any duty that you want to be enforceable later in favor of your client needs to spelled out. Here, it would have been simple to spell out that Joe had the duty to notify Adella in writing within a specified time of his retirement. For example, he could have been required to send her a copy of his application for benefits simultaneously with its submission to the agency.
- Whenever a contract requires third-party payments on behalf of A, specify that A will be responsible to make the agreed payments himself to B until the third party begins making them. For instance, “Joe will pay one-half of any retirement benefits received by him directly to Adella until such time as the [agency] begins withholding her 50% portion” or words to that effect.
- You might want to read that Department of Defense material and incorporate some of it verbatim in your PSA. Agencies understand their own jargon better than yours or the court’s.
- Is it in your client’s interest to spell out whether the retirement is being paid as property division on the one hand, or as alimony on the other? It might be; you need to consider it.
- Know and understand how the retirement system works. Read the interpretive material. Study the website. Draft your PSA from a position of knowledge, not guesswork.
Right to Appointed Counsel in a TPR Case
June 1, 2015 § 5 Comments
If any area of family law has undergone what could unquestionably be considered an upheaval recently, it would have to be termination of parental rights (TPR), per MCA 93-15-101, et seq.
The first shot was fired in Chism v. Bright, about which we previously posted here. Chism is the MSSC case that interpreted MCA 93-15-103 to require that the statutory prerequisites be satisfied before the chancellor may consider whether any of the grounds for termination apply in the case. It was that case that caused us to question whether TPR as a private action between individuals was now extinct.
In Pritchett v. Pritchett, decided April 7, 2015, the COA took up the issue whether an indigent parent facing TPR is entitled to appointment of counsel. Judge Roberts, applying US Supreme Court precedent, concluded that such a right does exist. His reasoning:
¶9. As was outlined above, James claimed indigency and requested an attorney be appointed on three separate occasions, and the chancery court never addressed his requests, nor did it appoint an attorney to represent him. It is well established, through the Sixth Amendment to the United States Constitution, that an indigent defendant in a criminal case has a right to the assistance of counsel, specifically when a defendant’s loss of liberty may result; however, the case before us today is a civil case.
¶10. Nonetheless, it is also well established that “a parent’s desire for and right to ‘the companionship, care, custody[,] and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’” Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). Further, “[a] parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore[,] a commanding one.” Id. In footnote three of Lassiter, the Supreme Court noted that “[s]ome parents will have an additional interest to protect. Petitions to terminate parental rights are not uncommonly based on alleged criminal activity. Parents so accused may need legal counsel to guide them in understanding the problems such petitions may create.” The Supreme Court held in Lassiter that it would not be “‘prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary’ . . . since ‘the facts and circumstances are susceptible of almost infinite variation.’” Id. at 32 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)). It also stated that “[i]nformed opinion has clearly come to hold that an indigent parent is entitled to the assistance of appointed counsel[,] not only in parental termination proceedings, but also in dependency and neglect proceedings[.]” Id. at 33-34. But the Supreme Court ultimately left the decision on whether to appoint counsel to be decided on a case-by-case basis by the state. At the time of Lassiter, statutes in thirty-three states and the District of Columbia provided for the appointment of counsel in termination cases. Id. at 34.
¶11. The termination of parental rights is a serious and permanent proceeding, one which effectively ends any ties between a parent and a child. The Mississippi Legislature recognized the seriousness of such an event and recommended that alternatives to the termination of parental rights be pursued “when, in the best interest of the child, parental contacts are desirable[.]” Miss. Code Ann. § 93-15-103(4). The Mississippi Supreme Court case of K.D.G.L.B.P. v. Hinds County Department of Human Services, 771 So. 2d 907, 909 (¶8) (Miss. 2000), also involved the question of whether a natural parent should be appointed an attorney in a termination-of-parental-rights proceeding. In K.D.G.L.B.P., the chancery court thoroughly questioned the natural mother about the lack of an attorney and whether she would represent herself. Id. at (¶9). She indicated that she would represent herself, she never asked for a continuance, and she did not indicate that she was unable to afford an attorney. Id. at 909-10 (¶¶9-10). The supreme court, in analyzing Lassiter, stated:
One of the most important factors to be considered in applying the standards for court[-]appointed counsel is whether the presence of counsel would have made a determinative difference. The Lassiter decision thus states that appointment of counsel in termination proceedings, while wise, is not mandatory and therefore should be determined by state courts on a case-by-case basis.
Id. at 910 (¶12). The supreme court went on to find that “the mother was granted a fair and adequate hearing.” Id. at 911 (¶14).
She was given ample notice of the proceeding in time for her to secure suitable counsel. At trial, she never asked for a continuance or for additional time to seek substitute counsel. Instead, she signified to the court that she intended to represent herself and that she was ready to proceed. Furthermore, on the day of trial, she did not even allude to the fact that her financial condition might have precluded her from being able to retain counsel. This argument was only raised in post-trial motions. Finally, the evidence supporting the chancellor’s decision to terminate the mother’s parental rights was so overwhelming that the presence of counsel would not have changed the outcome of the trial. Although the termination of parental rights is a serious judicial proceeding, a review of the record indicates that the chancellor’s actions ensured that the mother was provided a constitutionally adequate hearing as guaranteed by the Fourteenth Amendment.
Id.
¶12. The case before us is distinguishable from K.D.G.L.B.P. in that serious due-process concerns exist in this case that were not present in K.D.G.L.B.P. James claimed indigency in three letters filed with the chancery court and requested appointment of counsel. The record does not contain a response from the chancery court. Furthermore, James requested the chancery court assist him with securing transportation to the hearing. The only action taken by the chancery court was to “continue [the] matter for [James] to arrange transportation.” Since James was an inmate in MDOC custody, it appears disingenuous to say that he could arrange his own transportation. The hearing proceeded in James’s absence.
¶13. We simply are unable to conclude, based on the scant record we have, that the presence of counsel would not have made an outcome-determinative difference. As an illustration, James’s request to be present for the hearing could have been secured by his attorney filing a writ of habeas corpus ad testificandum, which would have required James’s presence at the hearing to testify. Such a common-law writ would command the custodian, MDOC, to bring James to the chancery court to testify. Mississippi Code Annotated section 9-1-19 (Rev. 2014) and Mississippi Code Annotated section 11-43-7 (Rev. 2012) provide chancery courts the authority to grant such writs as habeas corpus. Additionally, an attorney’s presence could have aided James with presenting the complex issue of the applicability of the section 93-15-103 to the present facts.
¶14. We reverse the chancery court’s decision and remand this case for the chancery court to determine the question of indigency and the necessity of appointment of counsel under Lassiter, and for the chancery court to make appropriate arrangements for James to be present and/or participate in the proceedings.
The message here is that TPR is serious and has constitutional implications that require heightened due-process requirements. The judge should inquire searchingly on the record whether the defendant understands the nature of the action and what is at stake, and whether the defendant is honestly capable of representing his or her own interests.
Carried to its logical extreme, I wonder whether any pro se party in any case is ever truly equipped to decide whether he or she should proceed without counsel? Is any lay person competent to make that determination without advice of counsel? No matter, all that is required under Lassiter and K.D.G.L.B.P. is a waiver on the record.
Courthouses of Mississippi
May 29, 2015 § 1 Comment
Simpson – Kathy Wilkinson
Yalobusha at Water Valley – LP
Hinds Chancery at Jackson – LP
Lamar – Kathy Wilkinson
Smith Chancery – LP
Greene – Kathy Wilkinson
Jackson – Kathy Wilkinson
Pearl River – Barbie Parham
Neshoba – LP
Status of the Courthouses Project
May 28, 2015 § 5 Comments
We are moving along in our quest to publish photos of all the courthouses and chancery buildings in the State of Mississippi. So far we’ve published 48 courthouses and a few separate chancery buildings. That means we’re about half-way to being done.
Here are the courthouses that have not yet been published, and for which I do not have a photo in stock:
NOTE: Updated through June 12, 2015 …
Bolivar at Rosedale, Clay, Copiah, Franklin, Jefferson, Lawrence, Lee, Lincoln, Marshall, Oktibbeha, Panola at Sardis, Pike, Pontotoc, Prentiss, Sharkey, Tate, Tishomingo, Walthall, Warren, Washington, Wilkinson, Yazoo.
You can add to the collection next time you’re around your friendly, neighborhood courthouse. Simply snap a photo with your smart phone and email it to me. The instructions are at this link.
Reprise: Avoiding an Expensive Error
May 27, 2015 § Leave a comment
Reprise replays posts from the past that you may find useful today.
AVOIDING AN EXPENSIVE ERROR
October 12, 2010 § Leave a comment
Imagine having this nightmare:
You represent the husband. He has $376,000 in his securities account. You negotiate a property settlement agreement by which the wife will receive $203,200 from the account, and he will own the remaining $172,800. Couldn’t be plainer or more clear-cut. A few months drag by before you finally get the QDRO drafted and approved by the court. You ship it off to the plan manager, who calls you and tells you that the account is now only worth $204,000, and what exactly is it that you would like her to do. At this point in the nightmare, you wake up in a cold sweat.
Unfortunately for the parties in In re Dissolution of Marriage of Wood, 35 So.3d 507 (Miss. 2010), the nightmare was all too real. The facts set out above are the facts in their case. The former Mrs. Wood sued to collect her entire amount due under the agreement, and Mr. Wood took the position that sticking with the numbers in the property settlement agreement was an impossibility, and to grant Mrs. Wood her relief would produce an unfair and inequitable result.
Chancellor Dorothy Colomb ruled that the parties had actually negotiated an agreement whereby Mrs. Wood would receive 54% of the account balance at the time of the divorce, and Mr. Wood would receive 46%.
In affirming the chancellor, the Supreme Court addressed valuation dates, impossibility of performance and canons of construction. You can read the decision to get an appreciation for the complexity of legal issues that the draftsmanship created in this case.
The cardinal point for practitioners, however, is best summed up in the court’s own language at page 515:
“As this case illustrates, incorporating an estimate of an asset’s value into a property settlement agreement can cause problems when the parties later try to divide the asset, and the estimate turns out to be incorrect or inaccurate. Therefore, we make the following recommendations for the benefit of the bar. Where the value of an asset must be estimated because of the inherently indefinite or fluctuating nature of the asset itself, we recommend the use of percentages when setting forth the asset’s intended distribution in a property settlement agreement. Where the value of an asset remains sufficiently concrete or static, however, we recommend the use of specific dollar amounts.”
Mrs. Wood expected to get $203,000, and that’s what she negotiated for. Instead, she got $110,160, or $93,000 less than what she expected. The lesson is to think about what you’re doing and what could or might go wrong, and how you can guard against it.
The MRCP 60(b) Appeal
May 26, 2015 § Leave a comment
The COA’s decision in Crossley, et al. v. Moore, et al., decided April 21, 2015, addresses an important distinction between an appeal on the merits and what is reviewable in an appeal from a court’s MRCP 60(b) ruling.
In that case, the chancellor had stricken Crossley’s (the collective name for the defendants that this post will apply) answer and counterclaim due to a prolonged and obstinate refusal to cooperate and obey court orders for discovery. The judge entered a default judgment against the defendants, and set a hearing on damages. At that hearing, he heard testimony and entered a judgment against the defendants for more than $760,000 in damages, which included $26,000 in attorney’s fees. Crossley did not appeal.
Five months after entry of the judgment, Crossley filed a motion pursuant to MRCP 60(b) to set aside the judgments, claiming (1) that they never received notice of the hearing on sanctions for discovery violations, and (2) that they never received notice of hearing on the damages issue. At hearing, however, the defendants admitted that they did receive notice of the sanctions hearing, but insisted that they had not as to the damages hearing. The chancellor overruled the motion as to the sanctions hearing, leaving the default judgment intact, but granted a rehearing on the issue of damages.
Crossley appealed, arguing that the trial judge was in error in dismissing their answer and counterclaim based on sanctions.
The COA affirmed. Judge Maxwell wrote for the majority:
¶13. We begin with the discovery sanction. And the first order of business is to determine just exactly what Crossley and Templet are appealing. From their brief, they seem to argue they are appealing the merits of the August 2009 decision to strike their answer. But that decision led to a default judgment—a judgment that became final in March 2010. And this final judgment was not appealed. Nor was this judgment set aside. While the chancellor did order a new hearing on damages, Crossley and Templet acknowledge in their brief that the chancellor “refused to set aside the judgment itself.”
¶14. With the underlying default judgment left undisturbed, what Crossley and Templet are in fact appealing is the denial of their Rule 60(b) motion to set aside. See Blackmon v. W.S. Badcock Corp., Inc., 342 So. 2d 367, 371 (Ala. Civ. App. 1977) (holding that a Rule 60(b) ruling to vacate a damages award and conduct a new hearing did not confer on the movant the right to address the merits of the underlying default judgment). As we recently reiterated, this court’s “review of the denial of a Rule 60(b) motion is extremely limited.” Davis v. Vance, 138 So. 3d 961, 963 (¶1) (Miss. Ct. App. 2014). We are “not allowed to inquire into the actual merits of the underlying judgment.” Id. This is because Rule 60(b) is not a vehicle to relitigate the merits of a trial judge’s decision. Woods v. Victory Mktg., LLC, 111 So. 3d 1234, 1237 (¶13) (Miss. Ct. App. 2013). So even if the chancellor had done something that may have been reversible error had Crossley and Templet timely appealed, the fact remains that they did not appeal. And Rule 60(b) cannot be used to get around this. See Williams v. New Orleans Pub. Serv., Inc., 728 F.2d 730, 736 (5th Cir. 1984).
¶15. This court reviews the denial of their Rule 60(b) motion for abuse of discretion. Stringfellow v. Stringfellow, 451 So. 2d 219, 221 (Miss. 1984).
That’s a critical point to grasp. You can not use R60(b) as a vehicle to open the merits of the underlying judgment to appellate review. Once the deadline for appeal has past, the judgment itself is final and not reviewable on the merits. The only issue on appeal is whether the trial judge abused his or her discretion in ruling on the R60(b) motion. In this particular case, the COA ruled that the chancellor had not abused his discretion.
Another take-away from this case is that continued obstinate evasion of discovery and failure to abide by court orders for discovery have painful consequences that can radically alter the landscape of a lawsuit.
The Better Chancery Practice Blog 