283 So.3d 102
Miss.2019Background
- DeSoto County Board of Supervisors denied Standard Construction’s conditional-use permit to mine; Standard appealed to the DeSoto County Circuit Court under Miss. Code § 11-51-75.
- On September 29, 2017 the circuit court reversed the Board.
- DeSoto County filed a "motion for rehearing" on October 10, 2017 (11 days after the judgment) styled under M.R.A.P. 40; Standard responded that Rule 40 does not apply to circuit courts and that the motion was untimely under M.R.C.P. 59(e).
- The circuit court denied the motion on December 22, 2017, treating it as a Rule 60(b) motion filed within a reasonable time.
- DeSoto filed a notice of appeal on January 3, 2018 seeking review of both the September 29 judgment and the December 22 denial; the Court of Appeals dismissed the entire appeal as untimely.
- The Mississippi Supreme Court granted certiorari, affirmed dismissal of the appeal from the September 29 order (untimely), held the appeal from the December 22 denial was timely but found DeSoto waived any challenge to the circuit court’s denial of the Rule 60(b) motion, and therefore affirmed the circuit court’s judgment.
Issues
| Issue | Plaintiff's Argument (DeSoto County) | Defendant's Argument (Standard) | Held |
|---|---|---|---|
| Whether M.R.A.P. 40 rehearing motions are available in a circuit court sitting as an appellate court | Rule 40 may be used and DeSoto timely filed within 14 days | Rule 40 applies only to the Supreme Court and Court of Appeals; not to circuit courts | Rule 40(a) applies only to Supreme Court and Court of Appeals; not viable in circuit court sitting as an appellate court |
| Whether DeSoto’s post-judgment motion tolled the time to file appeal | Motion tolled appeal time; alternatively, treat as timely Rule 59(e) | Motion was untimely for Rule 59(e) and does not toll appeal; Rule 40 provides no tolling | Motion was not a tolling Rule 59(e) (it was filed after 10 days); a Rule 60(b) motion does not toll the time to appeal from the underlying judgment |
| Whether the October 10 motion should be treated as Rule 59(e) or Rule 60(b) | If construed as Rule 59(e) it was timely (within 14 days under DeSoto’s view) | It was filed more than 10 days after entry and thus is a Rule 60(b) motion | Filed 11 days after judgment, so it is a Rule 60(b) motion (not Rule 59(e)) |
| Whether the denial of the Rule 60(b) motion is reviewable and whether DeSoto preserved an abuse-of-discretion claim | Court should review the denial on the merits | Standard argues motion was improper and untimely; it opposed relief below | The appeal from the denial of the Rule 60(b) order was timely and the denial is appealable, but DeSoto did not argue abuse of discretion on appeal and thus waived that challenge; denial affirmed |
Key Cases Cited
- Bruce v. Bruce, 587 So. 2d 898 (Miss. 1991) (motion filed within ten days is treated as Rule 59(e) and tolls appeal time)
- City of Jackson v. Jackson Oaks Ltd. P’ship, 792 So. 2d 983 (Miss. 2001) (same tolling principle from timely post-judgment motions)
- Wilburn v. Wilburn, 991 So. 2d 1185 (Miss. 2008) (untimely Rule 59(e) may be excused if timeliness objection waived below)
- Michael v. Michael, 650 So. 2d 469 (Miss. 1995) (Rule 60(b) motion does not toll appellate time)
- McNeese v. McNeese, 119 So. 3d 264 (Miss. 2013) (Rule 60(b) reserved for exceptional circumstances; not for relitigation)
- Overbey v. Murray, 569 So. 2d 303 (Miss. 1990) (order denying Rule 60(b) motion is final and appealable)
- Cannon v. Cannon, 571 So. 2d 976 (Miss. 1990) (timing governs whether a post-judgment motion is treated as Rule 59 or Rule 60)