Moore v. Jacobs

Citation752 So.2d 1013
Decision Date16 December 1999
Docket NumberNo. 1998-CA-01745-SCT.,1998-CA-01745-SCT.
PartiesKenny MOORE, Individually, and d/b/a Moore's Auto Center v. Arthur R. JACOBS.
CourtUnited States State Supreme Court of Mississippi

Samuel E. Farris, Hattiesburg, Attorney for Appellant.

Nancy Steen, Hattiesburg, Attorney for Appellee.


WALLER, Justice, for the Court:


¶ 1. Kenny Moore appeals from the Circuit Court of Marion County's denial of his motion to set aside a judgment pursuant to Miss. R. Civ. P. 60(b). The basis of the cause of action was Arthur R. Jacobs' claim that, on April 18, 1989, he broke his hip on the premises of Moore's business while in Moore's employ. On July 16, 1993, a judgment based on a jury verdict in the amount of $30,000 was entered in favor of Jacobs and against Moore. Moore appealed to the Court of Appeals, which affirmed the judgment. Moore v. Jacobs, 678 So.2d 1017 (Miss.App. 1996). We denied Moore's petition for writ of certiorari. 691 So.2d 1028 (Miss.1996) (table).

¶ 2. Moore then filed a Motion to Set Aside Judgment Under Rule 60(b)(6) which was denied on March 11, 1997. Thereafter, on March 19, 1997, Moore filed an Amended Motion to Set Aside Judgment under Rule 60(b)(1, 3, 4, 6). Moore presented the affidavits of two of his employees who stated that Jacobs was not injured on the business premises, and that, although he was present on the business premises for a short time, he was not working for Moore on the date of the incident. Moore also presented the affidavit of Charles Bass, M. D., who treated Jacobs on March 28, 1989, a few weeks before the incident. Dr. Bass averred that Jacobs had told him that he had had a hip replacement twenty years earlier and that he had fallen and had hurt his hip on March 27, 1989, at home. Moore concluded that Jacobs had "perpetrated a fraud upon the Court and committed perjury in order to secure" a judgment; and his lawyer was ineffective in failing to investigate fully the facts of the case.

¶ 3. After an evidentiary hearing, the trial court denied the Rule 60(b) motion, holding that Moore untimely filed the motion insofar as it pertained to Rule 60(b)(1) and (3), which motions should be filed within six months of the entry of judgment. The court further held that Rule 60(b)(4) was inapplicable because Moore did not show that the judgment was void. The court denied the motion to the extent that it was based on Rule 60(b)(6) because all the evidence presented in the affidavits was available at the time of the trial and because there was a need for finality. The trial judge observed that Moore had lost the appeal and that four years had passed since the judgment was entered. Finally, the court found that ineffective assistance of counsel, assuming arguendo that it was proven, was not a ground for setting aside a civil judgment, citing Stringfellow v. Stringfellow, 451 So.2d 219 (Miss.1984).


¶ 4. Moore raises one issue on appeal:



¶ 5. We will reverse the grant or denial of a Rule 60(b)1 motion only upon a showing of abuse of discretion. Page v. Siemens Energy & Automation, Inc., 728 So.2d 1075, 1079 (Miss.1998); Briney v. U.S.F. & G. Co., 714 So.2d 962 (Miss.1998); Sartain v. White, 588 So.2d 204, 211 (Miss. 1991).

¶ 6. When ruling upon Rule 60(b) motions,

... a balance must be struck between granting a litigant a hearing on the merits with the need and desire to achieve finality in litigation.... [A] party is not entitled to relief merely because he is unhappy with the judgment, but he must make some showing that he was justified in failing to avoid mistake or inadvertence; gross negligence, ignorance of the rules, or ignorance of the law is not enough.

Stringfellow, 451 So.2d at 221.


¶ 7. Moore alleges that Jacobs "testified to matters that upon further investigation were determined to be false," and that he therefore committed perjury. The controverted facts are as follows: (1) whether Jacobs broke his hip on March 27, 1989, or on April 18, 1989; (2) if Jacobs broke his hip on April 18, 1989, whether Jacobs was working for Moore or was merely present on the business premises; (3) if Jacobs broke his hip on April 18, 1989, whether Jacobs was helping to move a truck hood or stepping out of a car; (4) whether Jacobs had trouble with his hip prior to April 18, 1989; (5) whether Jacobs had a hip replacement or hip surgery prior to April 18, 1989.

¶ 8. The medical records of Charles Bass, M. D., indicate that on March 28, 1989, Jacobs reported that he had fallen at home and hurt his right hip, and that he had had hip replacement surgery about 20 years ago by a Dr. Conerly. X-rays of the right hip taken on that same date show an "impacted, old arthritic hip, right which has apparently been fractured in the past. Fused."

¶ 9. The medical records of Bruce M. McCarthy, M. D., indicate that on March 28, 1989, Jacobs remembered injuring his hip many years ago. Dr. McCarthy did not see a new fracture in the x-rays taken by Dr. Bass. On April 11, 1989, the hip was "virtually fused." On April 19, 1989, Dr. McCarthy stated, "Mr. Jacobs has had a disaster. He apparently misstepped getting out of the car, getting into his gas station where he works." An x-ray showed a fracture of the middle third and proximal femur.

¶ 10. Numerous inconsistencies in Jacobs' testimony were brought out on crossexamination. For example, Jacobs testified that he had not had hip trouble nor seen a doctor for hip trouble prior to the April 18 incident, but he had also experienced pain and a "giving way" in his hip which were diagnosed as arthritis. Even though doctors had histories and notes pertaining to Jacobs on certain dates, Jacobs contended he had not seen those doctors on those dates. And Jacobs denied saying what doctors' notes showed he had told them during their examinations.

¶ 11. Moore testified that Jacobs stopped working for him in January or February of 1989, and was not working for him on April 18, 1989. Only Herbert Arinder, Henry Carr, and Harry Thompson worked for him after February, 1989. Arinder and Carr averred in their proffered affidavits that Jacobs did not injure his hip on the business premises, was not working for Moore on the day of the incident, and that he did not help move the hood. Dr. Bass' affidavit reflects that on March 28, 1989, Jacobs stated that he had had a hip replacement 20 years ago, and that he had fallen and hurt his hip on March 27, 1989, at home.

¶ 12. Moore concludes that Jacobs' perjury constitutes "extraordinary and compelling circumstances" which demand relief under Rule 60(b)(6).

Time-Barred Claims

¶ 13. Relief under Rule 60(b)(6) "must be based on some other reason than the first five clauses, and it must be some ground which will justify relief from the final judgment." Bryant, Inc. v. Walters, 493 So.2d 933, 939 (Miss.1986) (emphasis added); see also Page, 728 So.2d at 1079

; Sartain, 588 So.2d at 212. The United States Court of Appeals for the Fifth Circuit has similarly held that Rule 60(b)'s "`any other reason' language refers to any other reason than those contained in the five enumerated grounds on which a court may grant a Rule 60(b) motion." Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 747 (5th Cir.1995) (quoting Government Fin. Servs. One Ltd. Partnership v. Peyton Place, Inc., 62 F.3d 767, 773 (5th Cir. 1995)).

¶ 14. Claims of perjury constitute "fraud, misrepresentation, or other misconduct of an adverse party" under Rule 60(b)(1) and claims of new evidence constitute "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)." Subsection (1) and (3) claims must be made "not more than six months after the judgment ... was entered." Moore has attempted to bypass the six month time limitation by cloaking his subsection (1) and (3) claims as a subsection (6) claim.

¶ 15. Because Moore is time barred from bringing fraud (perjury) and new evidence claims under Rule 60(b)(6), the trial court did not abuse its discretion in denying Moore's motion insofar as it pertains to these claims.

Rule 60(b)(6) Claim

¶ 16. In Briney v. U.S.F. & G. Co., 714 So.2d at 966, the Court stated that, because Miss. R. Civ. P. 60(b) is almost identical to Rule 60(b) of the Federal Rules of Civil Procedure, it "will consider as authoritative federal constructions when determining what our construction of our rule ought to be." See also Askew v. Askew, 699 So.2d 515, 518-19 (Miss.1997)

("[A]uthoritative federal interpretations of the rule have been considered helpful because of the strong similarity our rule share[s] with the federal rule."); Stringfellow, 451 So.2d at 221.

¶ 17. Relief under Rule 60(b)(6) "is reserved for exceptional and compelling circumstances." Bryant, Inc., 493 So.2d at 939. As Moore points out, a Rule 60(b)(6) motion is the "grand reservoir of equitable power to do justice." Briney, 714 So.2d at 966. In order to determine if equity demands that Moore's Rule 60(b) motion be granted, we will look at Moore's claims on the merits.

¶ 18. Fraud, misrepresentation or other misconduct must be proved by clear and convincing evidence. Stringfellow, 451 So.2d at 221. The Fifth Circuit has held:

A motion for a new trial [based on new evidence] is an extraordinary motion, and the requirements of the rule must be strictly met. [Citation omitted.] The motion may not be granted unless (1) the evidence was discovered following the trial; (2) due diligence on the part of the movant to discover the new evidence is shown or may be inferred; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; (5) the

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