111 So. 3d 1234
Miss. Ct. App.2013Background
- Woods appeal the denial of their Rule 60(b) motion to reconsider after Victory Marketing’s summary judgment was affirmed on the merits.
- Victory Marketing operates Sprint Mart; Jerome Woods slipped in December 2009 on a wet, waxy-smelling substance.
- The circuit court granted Victory Marketing summary judgment unopposed, then granted Woods’ motion to reconsider and allowed evidence.
- After a second merits-based summary judgment, final judgment was entered January 28, 2012.
- Woods filed a Rule 60(b) motion on February 7, 2012 (15 days after judgment) attaching Bonman’s affidavit; the circuit court denied reconsideration and Woods appealed March 8, 2012.
- On appeal, Woods contest only the denial of their Rule 60(b) motion, not the underlying summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the Rule 60(b) denial proper? | Woods claim Bonman’s affidavit created a material dispute. | Bonman’s affidavit was not newly discovered evidence and there were no other justifications. | No abuse; denial sustained. |
| Is the Bonman affidavit | Affidavit constitutes newly discovered evidence under Rule 60(b)(3). | Evidence was discoverable before the initial summary judgment; not newly discovered. | Not newly discovered; denial affirmed. |
| Does Rule 60(b) toll the time to appeal the underlying judgment? | Appeal should challenge the underlying judgment. | Rule 60(b) motion does not toll the appeal period; review is limited to reconsideration denial. | Appeal limited to denial of reconsideration; merits reviewed for abuse of discretion. |
Key Cases Cited
- City of Jackson v. Jackson Oaks Ltd. P’ship, 792 So.2d 983 (Miss.2001) (tolls and timing rules for Rule 59 motions and related appeals)
- Perkins v. Perkins, 787 So.2d 1256 (Miss.2001) (tolling of appeal period when Rule 59 motion is denied; combined appeal)
- Melton v. Smith’s Pecans, Inc., 65 So.3d 853 (Miss.Ct.App.2011) (review of Rule 60(b) denial for abuse of discretion)
- Overbey v. Murray, 569 So.2d 303 (Miss.1990) (general Rule 60(b) relief standards)
- Accredited Sur. & Cas. Co. v. Bolles, 535 So.2d 56 (Miss.1988) (motion to reconsider standards under Rule 60(b))
- Stringfellow v. Stringfellow, 451 So.2d 219 (Miss.1984) (relitigation concerns in Rule 60(b) rulings)
- Fowler v. White, 85 So.3d 287 (Miss.2012) (high court rejects Rule 59 motion based on pre-judgment affidavit evidence)
- Richardson ex rel. Richardson v. DeRouen, 920 So.2d 1044 (Miss.Ct.App.2006) (evidence discoverability timing in Rule 60(b) context)
- Russ v. Int’l Paper Co., 943 F.2d 589 (5th Cir.1991) (Fifth Circuit view on timely presentation of evidence)