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Rule 59 – New Trials; Amendment of Judgments

May 13, 2021 | Civil Procedure, Mississippi

(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of Mississippi; and (2) in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.

On a motion for a new trial in an action without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.

(b) Time for Motion. A motion for a new trial shall be filed not later than ten days after the entry of judgment.
(c) Time for Serving Affidavits. When a motion for new trial is based upon affidavits they shall be filed with the motion. The opposing party has ten days after service to file opposing affidavits, which period may be extended for up to twenty days either by the court for good cause shown or by the parties’ written stipulation. The court may permit reply affidavits.
(d) On Initiative of Court. Not later than ten days after entry of judgment the court may on its own initiative order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a timely motion for a new trial for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor.
(e) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be filed not later than ten days after entry of the judgment.

Miss. R. Civ. P. 59

Amended effective July 1, 1997; Advisory Committee Note adopted effective July 1, 2014.
Advisory Committee Notesamended effective January 16, 2020.

Advisory Committee Historical Note

Effective July 1, 1997, Rule 59(b), (c) and (e) were amended to clarify that motions for a new trial and accompanying affidavits, and motions to alter or amend a judgment, must be filed not later that ten days after entry of judgment. _____ So. 2d _____ (West Miss. Cases).

Advisory Committee Notes

In jury trials, the trial court may grant a new trial based upon a prejudicial error by the court in the admission or exclusion of evidence, an error in the jury instructions, prejudicial comments by the judge or attorneys, a finding that the verdict is against the great weight of the evidence, a finding that the jury’s verdict is the result of passion, prejudice or bias, or any grounds upon which new trials were granted in actions at law prior to the adoption of these rules. A trial court’s ruling on a motion for new trial is reviewed for abuse of discretion.

Although “[i]t is clearly better practice to include all potential assignments of error in a motion for new trial,.when the assignment of error is based on an issue which has been decided by the trial court and duly recorded in the court reporter’s transcript, such as the omission or exclusion of evidence, [the appellate court] may consider it regardless of whether it was raised in the motion for new trial.” See Kiddy v. Lipscomb, 628 So. 2d 1355, 1359 (Miss. 1993).

The rule does not authorize a motion for reconsideration after entry of judgment. If a motion is mislabeled as a motion for reconsideration and was filed within ten days after the entry of judgment, the trial court should treat such motion as a post-trial motion to alter or amend the judgment pursuant to M.R.C.P. 59(e). Boyles v. Schlumberger Tech. Corp., 792 So. 2d 262, 265 (Miss. 2001). A party moving to alter or amend the judgment “must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law to prevent manifest injustice.” See Brooks v. Robertson, 882 So. 2d 229, 233 (Miss. 2004). A motion to alter or amend the judgment is within the trial court’s discretion. When a motion is mislabeled as a motion for reconsideration, does not state that it was brought pursuant to Rule 59, and was filed more than ten days after the entry of the final judgment in the case, the trial court should treat such motion as one for relief from a judgment pursuant to Rule 60(b). See Carlisle v. Allen, 40 So. 3d 1252, 1260 (Miss. 2010).

A motion for new trial or a motion to alter or amend the judgment made pursuant to M.R.C.P. 59 must be filed within 10 days after entry of the judgment. The trial court has no authority or discretion to extend the 10-day time period. M.R.C.P. 6(b). A timely Rule 59 motion for a new trial or to alter or amend the judgment tolls the time in which to file a notice of appeal; the thirty-day time period in which to file a notice of appeal runs from the entry of the order disposing of the post-trial motion. M.R.A.P. 4(c). If not filed within ten days after entry of the judgment, a Rule 59 motion for a new trial, to alter or amend the judgment, or for reconsideration does not toll the time period in which to file a notice of appeal. M.R.A.P. 4(d); but see Wilburn v. Wilburn, 991 So. 2d 1185, 1190-191 (Miss. 2008) (Court refused to address the timeliness of appellant’s notice of appeal even though appellant filed a motion to reconsider more than ten days after entry of judgment and did not file a notice of appeal within thirty days after the entry of judgment, noting that the appellee did not object to the untimely motion to reconsider.)

In a case tried without a jury, a party may move the court to amend its findings of fact or make additional findings of fact pursuant to M.R.C.P. 52(b). The motion must be filed within ten days after entry of judgment. Upon a timely motion, the court may amend its findings or make additional findings and amend its judgment accordingly.

A motion for relief from a final judgment pursuant to M.R.C.P. 60(b) is different from a motion to alter or amend the judgment pursuant to M.R.C.P. 59(e) in that a change in the law after entry of final judgment is not an “extraordinary or compelling circumstance” warranting relief pursuant to M.R.C.P. 60(b). See Regan v. S. Cent. Reg’l Med. Ctr., 47 So. 3d 651, 655 (Miss. 2010). Relief pursuant to Rule 60(b)(6) is reserved for cases involving “exceptional and compelling circumstances” in light of the desire to achieve finality in litigation. See id.

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