Jenkins v. Jenkins, 97-CA-00968-COA.

• Court: Court of Appeals of Mississippi
• Writing for the Court: BEFORE McMILLIN, C.J., IRVING, AND THOMAS, JJ.
• Citation: 757 So.2d 339
• Parties: Edmond Allen JENKINS and Donna B. Jenkins, Appellants, v. Eldon Thomas JENKINS, Earl Burnell Jenkins, Lavelle Jenkins McRee, Alice Jenkins Thompson, Edmund Burke Jenkins, Robert Eugene Jenkins, Francis Jenkins Simmons, Shirley Jenkins Sessions, Sara Ann Jenkins White, Henrietta Jenkins Buckley and Dilly Jenkins, Appellees.
• Docket Number: No. 97-CA-00968-COA.,97-CA-00968-COA.
• Decision Date: 18 April 2000

757 So.2d 339

Edmond Allen JENKINS and Donna B. Jenkins, Appellants,
v.
Eldon Thomas JENKINS, Earl Burnell Jenkins, Lavelle Jenkins McRee, Alice Jenkins Thompson, Edmund Burke Jenkins, Robert Eugene Jenkins, Francis Jenkins Simmons, Shirley Jenkins Sessions, Sara Ann Jenkins White, Henrietta Jenkins Buckley and Dilly Jenkins, Appellees

No. 97-CA-00968-COA.

Court of Appeals of Mississippi.

April 18, 2000.

757 So.2d 340

David Ringer, Florence, Attorney for Appellants

John T. Armstrong, Jr., Dudley F. Lampton, Hazlehurst, Attorneys for Appellees.

BEFORE McMILLIN, C.J., IRVING, AND THOMAS, JJ.

IRVING, J., for the Court:

¶ 1. This appeal arises from the Chancery Court of Copiah County, where the trial judge denied Edmond Allen Jenkins and Donna B. Jenkins's (Edmond and Donna) motion to set aside the final judgment which partitioned Edmond and Donna's one-sixth interest from a 219 acre tract of land inherited by both Edmond and Donna and several other Jenkins heirs. Aggrieved by the trial court's refusal to set aside the final judgment, Edmond and Donna now appeal and raise the following issues which are taken verbatim from their statement of the issues:

A. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING THAT THE AGREED JUDGMENT OF MAY 6, 1993, BETWEEN THE APPELLEES AND APPELLANTS, SERVED AS A WAIVER OF THE RIGHT TO CLAIM ANY ERROR OR MISTAKE IN THE DESCRIPTION IN THE LAND TO BE PARTITED.

B. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO GRANT RELIEF FROM JUDGMENT PURSUANT TO M.R.C.P. 60(B)(3).

C. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING THAT THE DEFENDANTS/APPELLANTS MOTION FOR RELIEF UNDER M.R.C.P. 60(B)(5)(6), DESCRIBED AN UNREASONABLE LENGTH OF TIME AFTER THE JUDGMENT WAS ENTERED.

D. WHETHER TRIAL COURT WAS ERRONEOUS IN ITS DETERMINATION THAT THE ENUMERATED CLAIMS FOR RELIEF UNDER M.R.C.P. 60(B) ARE MUTUALLY EXCLUSIVE.

757 So.2d 341

E. WHETHER STATEMENTS MADE BY THE APPELLANT NEGATE BOTH EXTRAORDINARY CIRCUMSTANCES AND EQUITABLE CONSIDERATIONS.

F. WHETHER AGREEMENTS OR RELIANCE UPON WORK OF A MISSISSIPPI LICENSED SURVEYOR AS BEING ACCURATE, IS A RELIANCE WHICH, WHEN SEASONABLY DISCOVERED TO BE INACCURATE, FOLLOWED BY SEASONABLE APPLICATION FOR RELIEF UNTO THE COURT, IS SUFFICIENT TO JUSTIFY RELIEF FROM A JUDGMENT WHICH WAS ERRONEOUS BECAUSE THE SURVEY WAS ERRONEOUS.

Finding no reversible error, we affirm.

FACTS

¶ 2. Edmond and Donna Jenkins and the Jenkins heirs which include Eldon Thomas Jenkins, Earl Burnell Jenkins, Lavelle Jenkins Mcree, Alice Jenkins Thompson, Edmund Burke Jenkins, Robert Eugene Jenkins, Francis Jenkins Simmons, Shirley Jenkins Sessions, Sara Ann Jenkins White, Henrietta Jenkins Buckley and Dilly Jenkins inherited 219 acres of land located in Copiah County from Jesse Allen Jenkins. On October 12, 1992, the Jenkins heirs filed suit to have their collective five-sixths interest partitioned from Edmond and Donna's one-sixth interest. An agreed judgment was entered on May 6, 1993, in which the parties agreed to partition in kind the 219 acres of land. To accomplish the partition, the trial court appointed commissioners to make the division. On February 23, 1994, over Edmond and Donna's objections, a judgment was entered confirming the commissioners's report which divided the land into two tracts of 182.5 acres and 36.5 acres. Edmond and Donna's 36.5 acre tract was to be located in the southwestern part of the 219 acres and to be adjoined to the five acres already owned by them. A survey was ordered and conducted on the tract allotted to Edmond and Donna. The survey was filed on April 21, 1994. On May 9, 1994, a final judgment was entered which described the 219 acres being partited, awarded the 36.5 acres per survey description to Edmond and Donna, and awarded the remaining 182.5 acres to the Jenkins heirs. The judgment also instructed Edmond and Donna to remove their trailers from the Jenkins heirs' 182.5 acre tract within thirty days.

¶ 3. Aggrieved with the location of the 36.5 acres, Edmond and Donna appealed. Since the appeal was without supersedeas bond, the Jenkins heirs sought and were granted an injunction requiring Edmond and Donna to remove trailers, dog pens, skinning sheds and other deer camp equipment from the 182.5 acres by November 28, 1994. The injunction was subject to Edmond and Donna's posting a supersedeas bond. Edmond and Donna posted the bond, and the injunction was stayed. On August 6, 1996, this Court affirmed the lower court's judgment. See Jenkins v. Jenkins, 691 So.2d 1050 (Miss.Ct.App. 1996). Edmond and Donna's petition for rehearing was denied on October 15, 1996. On January 9, 1997, the Mississippi Supreme Court denied certiorari.

¶ 4. The present controversy involves a motion filed by the Jenkins heirs on March 18, 1997. In the motion, the Jenkins heirs requested the trial court to require Edmond and Donna to show cause why they should not be found in contempt of court for failing to comply with the final judgment and the injunction judgment which required Edmond and Donna to move the trailers, dog pens, and other deer camp equipment. On May 8, 1997, Edmond and Donna responded to the motion and asserted an affirmative defense that they did not have time to remove their property due to inclement weather and that the date in the judgments had expired and no new date had been set. Additionally, Edmond

757 So.2d 342

and Donna filed a counter-motion seeking Rule 60(b) relief of the final judgment and a repartition under Miss.Code Ann. § 11-21-35 (1972). Edmond and Donna claimed that their separate five acre tract, which was included in the survey, was actually 17 acres, thus 12 acres of their fee land was included in the land allotted to them in the partition. On June 23, 1997, the trial court entered an order denying the Jenkins heirs motion for contempt and also denying Edmond and Donna's counter-motion and request for relief under M.R.C.P. 60(b). We affirm the judgment of the trial court

STANDARD OF REVIEW

¶ 5. Appellate review of Rule 60(b) motions is limited. Stringfellow v. Stringfellow, 451 So.2d 219, 220 (Miss. 1984). We will not reverse a trial court's decision to deny relief under Rule 60(b) unless the trial court abused its sound discretion. Considerations of a Rule 60(b) motion requires a balancing between granting a litigant a hearing on the merits with the...