Not Newly Discovered Evidence

January 29, 2020 § Leave a comment

When the chancellor awarded Amanda Prestwood rehabilitative alimony, his opinion pointed out that the record was bereft of evidence of daycare expenses, an itemization of debt she claimed she owed to her father, credit card debt, and student loan debt. Believing the award inadequate, Amanda filed a R59 motion to alter or amend the judgment, or, in the alternative, for a new trial. She asked the court to reweigh the evidence at trial, along with additional evidence attached to the motion, which included: a daycare cost sheet; a lease agreement; a promissory note; credit card statements; and her student loan debts. The court overruled the motion, and Amanda appealed.

The COA affirmed in Prestwood v. Prestwood, decided December 10, 2019. The opinion by Judge McDonald, is a routine analysis of rehabilitative alimony. You can read it for yourself.

The point I want to make here is that you should not use R59’s new trial provision to try to get before the court evidence that you did not, for whatever reason, at the trial. R59(a) specifies that the court in a non-jury case may grant a new trial “for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.” Griffith says that, after completion of the term, the court could only grant a rehearing for newly discovered evidence or “supervening facts.” Newly-discovered is self-explanatory. Supervening facts would include factual circumstances that have changed since entry of the judgment which, had they been known to or foreseen by the court, would have changed the court’s ruling. Amanda’s post-trial proof fits neither category. Unless the opinion neglected to mention that all of her attachments to the motion were newly-discovered, she could have presented every bit of it at trial. Here is what Justice Griffith said about it:

It is the earnest desire of courts, and especially of courts of equity, to render decision only upon a full and fair exposition of all the pertinent material facts, and the courts will always be interested in any presentation that discloses any material fact not theretofore brought into the case. Nevertheless the law requires diligence from suitors, and when a trial has been had the question is not always whether justice has been done but whether the party complaining could, by the exercise of proper diligence, produced a different result … for while righteous results in specific cases are the great ends to be attained in equity decrees, it is also essential that there be an end to litigation, without unrighteous delays.

Griffith, Mississippi Chancery Practice, 2d Ed., 1950, § 632.

You need to think of final hearing as your one shot to get everything into the record that you will need to win the case on appeal, if necessary. The judge can’t give you a second chance without prejudicing the other party.

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.

Properly Pleading a Rule 59 Motion

January 10, 2017 § 1 Comment

A party wishes to ask the court for a new trial, and files the following within ten days of entry of the final judgment:

“Comes now the plaintiff, with respect to the court’s judgment rendered December 30, 2016, and moves the court for a new trial, pursuant to MRCP 59(a).”

Is that adequate?

Before we get to a response, I have to say that I have gotten motions almost identical to the language above, and no opposing party has ever raised an objection to its lack of specificity.

To me, it’s unquestionable that the motion is inadequate. That’s because of the specific language of R7(b), which states that “An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” Because R59(a) limits such a motion in chancery to ” … any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi,” at a minimum one or more of those reasons must be pled in order to meet the requirements of R7. Our case law recognizes also that the best practice is to specify all potential assignments of error in a motion for new trial, which indicates to me that the expectation is that some basis for the motion must be pled. See, Kiddy v. Lipscomb, 628 So.2d 1355, 1359 (Miss. 1993).

Rehearings in equity prior to the MRCP were granted for reasons including: matters in the record that were arguably overlooked or not adequately addressed by the court; or the court misapplied or did not follow controlling case law; or there is newly-discovered evidence or “supervening facts” that would render the court’s decree incorrect or inequitable. Griffith, Mississippi Chancery Practice, §632, 2d Ed., 1950. If your motion fits into one of those categories, then you must plead it and support it with enough facts and authority to give the trial judge a basis to rule on it.

An illustration of how the failure to properly plead a R59 motion can open a critical line of attack to the opposing party is the case of Carter v. Carter, decided by the MSSC on December 1, 2016. In that case, the trial court entered its final custody judgment, and a R59 motion was filed by the unsuccessful party 5 days afterward, well within the 10-day time required by the rule. Sixty-two days later the same party filed a “Supplemental Motion” asserting new grounds not included in the original motion. The trial judge overruled the motion. On appeal, the other side claimed that the appeal was untimely, since it was based on the grounds raised in the “Supplemental Motion,” which was filed long after the ten days post-entry of judgment had elapsed. After examining the law on the point for around eight pages, the high court ruled that the objection had been waived because no one raised it at the trial level. Bullet dodged.

The interesting thing about Carter to me is that the entire hoorah over the original motion vis a vis the “Supplemental Motion” is that it presupposes that grounds must be pled in the R59 motion. There would have been no argument about it at all if the language above were all that were required.

In the great majority of reported R59 case that I have looked at, the courts refer to the bases asserted by the movant at the trial level.

My advice:

  1. Raise every claim of error you can think of in your R59 motion (although failure to do so may not be fatal as to some assignments of error, as you will discover when you read the Kiddy case);
  2. Include some of that Griffith language in your motion, as applicable (if nothing else, it may impress someone that you are a scholar); and
  3. If the other side files an inadequately pled motion or attempts to raise unpled issues at hearing, by all means object and preserve your record.

The Basis for a New Trial

October 8, 2014 § Leave a comment

MRCP 59(a) provides that the trial court may grant a new trial ” … in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.” In non-jury cases ” … the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings of fact and conclusions, and direct entry of a new judgment.”

On its own initiative, the court may, within ten days of entry of a judgment, order a new trial (rehearing) for any of the above reasons. And the court may, after giving the parties’ notice, grant a new trial for reasons not stated in a motion. The court must spell out the grounds for its ruling.

In the case of Bariffe v. Estate of Lawson, et al., about which we posted yesterday, Justice Coleman’s dissent adds some important insight into how R59 is supposed to be applied by the trial court [beginning in ¶50]:

… Rule 59 must be read and interpreted in light of [MRCP] Rule 61, which provides:

No error in either the admission or the exclusion of evidence and no error in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

Miss. R. Civ. P. 61. Thus, a harmless error in the proceedings that “does not affect the substantial rights of the parties” is not a sufficient reason for granting a new trial. Id. Applying Rule 59, the Court has held that trial courts have discretion in granting a new trial if the judge is convinced that (1) “a mistake of law or fact has been made” or (2) “injustice would attend allowing the judgment to stand.” Mayoza v. Mayoza, 526 So. 2d 547, 549-50 (Miss. 1988). …

As we discussed in the previous post, the chancellor granted a new trial in Bariffe because he felt that he had improperly limited the parties’ presentation of their cases in the first trial by imposition of time limits on the examination of witnesses. The majority found no error in his granting of a new trial. Judge Coleman would have held it to be error based on his analysis above.

If you are going to make a R59 motion and argument, make sure you define what substantial rights were affected by the judge’s ruling, and stress that point. If you are on the receiving end of the motion, argue that the movant has failed to raise an issue cognizable under R61.



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.


December 19, 2011 § Leave a comment

MRCP 60(b)(3) provides that a court may grant relief from judgment based on “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).”

The Mississippi Supreme Court in the case of Moore v. Jacobs, 752 So.2d 1013, 1017 (Miss. 1999), pointed out that “A motion for a new trial based on new evidence is an extraordinary motion, and the requirements of the rule must be strictly met.” The decision set out five criteria that must me met in order for the trial court to grant relief:

  1. The evidence was discovered following the trial;
  2. There is proof, or it may be inferred, that the movant exercised due diligence to discover the new evidence;
  3. The evidence is not merely cumulative or impeachment;
  4. The evidence is material;
  5. The evidence is such that a new trial would probably produce a new result.

“A party asking for a new trial on the ground of newly discovered evidence must satisfy the [trial] court that the evidence has come to his knowledge since the trial, and that it was not owing to a want of diligence on his part that it was not discovered sooner.” Sullivan v. Heal, 571 So.2d 278, 281 (Miss. 1990). “[F]acts implying reasonable diligence must be proved by the movant.” NLRB v. Decker & Sons, 569 F.2d 357, 363-4 (5th Cir 1978).

The decision of the chancellor to deny such a motion may only be reversed if the appellate court finds abuse of discretion. United Serv. Auto Assoc. v. Lisanby, 47 So.3d 1172, 1176 (Miss. 2010).

All of the authority cited above is extracted from Judge Griffis’s opinion in the COA case of Smullins v. Smullins, decided on rehearing November 29, 2011.

Shellie and Bradley Smullins battled over a divorce and custody of their son Devinn, who was age seven at the time. Neither party was an all-star parent. There was substantial evidence that each of them engaged in behaviors that called their parenting skills into question.

On August 8, 2008, following the trial, the chancellor issued a fifty-page opinion that included a detailed Albright analysis. He awarded Bradley sole physical custody of Devinn and granted the parties joint legal custody.

On August 9, 2008, Shellie and Devinn submitted to a DNA test, and on August 12, 2008, Wendle Hunt did the same. The test result established a 99.999996% probability that Hunt was the natural father.

On September 6, 2008, the chancellor entered the judgment of divorce, which was approved as to form by Shellie’s attorney.

On September 26, 2008, Shellie filed a motion for a new trial (reconsideration under MRCP 59) on the basis of newly discovered evidence. The motion included the following assertions: Devinn was conceived prior to the parties’ marriage, and they knew before the marriage that it was possible that Bradley was not the father; the DNA test shows that Wendle Hunt is the natural father; Wendle Hunt is ready, willing and able to act as the child’s father; and Wendle is “disturbed to learn that his son is being raised by a second generation alcoholic drug addict.”

At hearing, Shellie testified that she always knew that there was a possibility that Bradley was not Devinn’s natural father. She had offered a DNA test before the marriage, but Bradley had refused. Wendle did not know that he had fathered a child by Shellie.

The chancellor overruled the motion, and said:

“The new evidence regarding the paternity of [Devinn] was not discovered until after the trial but was known to [Shellie] prior to entry of the judgment. [MRCP] 58 states that, “a judgment shall be effective only when entered.” Therefore, the paternity of Devinn Wayne Smullins was known prior to the divorce being final but was not disclosed to this court.

Due diligence on the part of the movant to discover the new evidence is required. ‘A party can not fail to investigate important information and then attempt to assert that information as new evidence at the end of the trial.’ [citing Goode v. Synergy Corp., 852 So.2d 661, 664 (¶12) (Miss. Ct. App. 2003) …]”

The judge found that Shellie had failed to exercise due diligence and overruled her motion for reconsideration.

The COA affirmed, saying at ¶35:

Just like the chancellor, we fail to see how the paternity test results can be newly discovered evidence if she knew of the possibility of that very fact prior to the commencement of this legal action. Had Shellie alleged that, upon information and belief, Bradley was not Devinn’s biological father, then that very issue could have [been] tried to the chancellor and considered in the final judgment. But she failed to do so.

Another avenue that Shellie could have taken to try to avoid running into this brick wall would have been to file a motion to reopen her case before the judge entered the judgment. It’s still unlikely she would have been granted any relief given what she testified that she knew, but that would have given her another shot.

So here is an important distinction to draw from this case: Although it is true that the DNA test results did not exist until after the trial, Shellie and Bradley both knew, or had strong reason to believe, that Bradley was not the father. Thus, the DNA results were mere verification of evidence that the parties knew of and could have developed at trial.

Genuine cases of newly discovered evidence that come within the rule are indeed rare. When the situation does arise, however, you have to analyze it within the express requirements of the rule.


November 16, 2010 § Leave a comment

Unlike the practice in Circuit Court, where a motion to set aside the verdict and for a new trial is a prerequisite to the right to appeal, it has never been the rule in Chancery Court that a motion for reconsideration or for a new trial or for relief from judgment operate in the same fashion.  In two opinions issued last year (I have not taken the time to dig them up, but they are out there), our appellate courts commented that no motion for a new trial had been filed by the appellant before taking appeal from Chancery.  It raised a question in my mind whether we were poised to go in a new direction. 

MRCP Rule 52(b) would seem to dispose of the matter, although I do not recall it being mentioned in the appellate decisions mentioned above.  It states:

When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised regardless of whether the party raising the question has made in court an objection to such findings or has filed a motion to amend them or a motion for judgment or a motion for a new trial.

Of course, the question of sufficiency of fact to support the findings is only one possible basis of appeal.  One may also appeal on the ground that the decision of the Chancellor is contrary to the law, or that there is a defect in personal jurisdiction (subject matter jurisdiction may be questioned for the first time at any point).  Is a motion necessary to preserve those points?

Without doing substantial research, I can only say that in my years of practice I never saw a case where an appeal from Chancery Court was rejected for failure to file a motion for a new trial.  Your mileage may vary.

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