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.

NEWLY DISCOVERED EVIDENCE, NOT NEWLY MANUFACTURED EVIDENCE

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.

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