164 So. 3d 468
Miss. Ct. App.2014Background
- Richard Dean sued for adverse possession of ~80 acres near Vancleave; chancery court found he failed to prove adverse possession and entered final judgment against him.
- Dean appealed; the Court of Appeals affirmed, and the Mississippi Supreme Court denied certiorari. Mandate was issued and judgment remained final.
- Dean then filed a Rule 60(b) motion in chancery court alleging (1) an ex parte trial brief ("earwigging") submitted to the chancellor by defendants without serving him, and (2) newly discovered newspaper archives that allegedly contradict a witness’s tax-sale testimony.
- The chancery court denied the Rule 60(b) motion; Dean’s motion for reconsideration was also denied. He appealed the denial of Rule 60(b) relief.
- The Court of Appeals reviewed only whether the Rule 60(b) denial was an abuse of discretion and affirmed: the ex parte-brief claim constituted relitigation; the newspaper evidence was discoverable or merely impeaching and would not change the outcome.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether chancery court had jurisdiction to entertain post-appeal Rule 60(b) motion | Dean sought post-affirmance relief in chancery court claiming new grounds for altering judgment | Defendants argued jurisdiction had shifted on appeal and did not return after affirmance and denied certiorari; Rule 60(b) not available to relitigate | Court observed jurisdiction generally does not return after affirmance; proceeded on merits but found no basis for relief |
| Whether ex parte trial brief justified Rule 60(b) relief | Dean claimed defendants submitted a trial brief ex parte and chancellor relied on it, tainting judgment | Defendants showed issue was raised at trial/post-trial and on appeal materials; Dean had procedural opportunities to raise it earlier | Denied: court treated the Rule 60(b) motion as an improper attempt to relitigate an already-litigated issue |
| Whether archived newspapers were newly discovered evidence under Rule 60(b)(3) | Dean claimed archived Pascagoula papers show no tax-sale notices, contradicting Slade’s testimony; he learned need only after her in-court testimony | Defendants argued the newspapers were discoverable with due diligence before or during trial and the evidence is impeaching | Denied: evidence was discoverable with due diligence and was merely impeaching, not material enough to probably produce a different result |
| Whether appeal was frivolous and warranted Rule 38 damages | Dean argued in good faith; sought relief from judgment | Defendants requested damages for frivolous appeal under Rule 38 | Denied: court found a reasonable party could have hoped to succeed; no objective frivolity shown |
Key Cases Cited
- Sabal Corp. v. Howell, 853 So.2d 122 (Miss. Ct. App. 2003) (abuse-of-discretion review of Rule 60(b) denial; Rule 60(b) is for extraordinary relief)
- City of Cleveland v. Mid-S. Assocs., LLC, 94 So.3d 1049 (Miss. 2012) (jurisdiction transfers to appellate court once notice of appeal filed)
- Collins v. Aeree, 614 So.2d 391 (Miss. 1993) (appellate affirmance ratifies trial court judgment; mandate enforcement is ministerial)
- Woods v. Victory Mktg., LLC, 111 So.3d 1234 (Miss. Ct. App. 2013) (Rule 60(b) cannot be used to relitigate issues)
- Page v. Siemens Energy & Automation, Inc., 728 So.2d 1075 (Miss. 1998) (definition of "newly discovered evidence" for Rule 60 relief)
- Hathaway v. Lewis, 114 So.3d 783 (Miss. Ct. App. 2013) (elements to justify new trial on newly discovered evidence; impeachment evidence is insufficient)
- Ivy v. Merchant, 666 So.2d 445 (Miss. 1995) (standard for determining whether a pleading or appeal is frivolous under Rule 11/Rule 38)