Miss. R. Civ. P. 60
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. Leave to make the motion need not be obtained from the appellate court unless the record has been transmitted to the appellate court and the action remains pending therein. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action and not otherwise.
Miss. R. Civ. P. 60
Advisory Committee Notes
The trial court may grant relief from a judgment or order to correct clerical errors pursuant to Rule 60(a), or for other reasons enumerated in Rule 60(b). The trial court may correct clerical errors at any time, but if the case is on appeal and the trial court clerk has transmitted the record to the appellate court, the trial court must obtain leave from the appellate court before correcting any clerical mistakes. Motions for relief from a judgment or order based upon one of the reasons enumerated in Rule 60(b) must be made within a reasonable time, and in some cases, not more than six months after the judgment or order was entered.
Rule 60(a) only authorizes the trial court to correct clerical errors; it does not authorize any changes to the judgment that are substantive and change the effect or intent of the original judgment. See Whitney Nat'l Bank v. Smith, 613 So. 2d 312, 316 (Miss. 1993).
When ruling upon a Rule 60(b) motion, the trial court should balance the litigant's interest in a resolution on the merits of the motion with the desire to achieve finality in litigation. See Stringfellow v. Stringfellow, 451 So. 2d 219, 221 (Miss. 1984). Rule 60(b) motions that attempt to merely relitigate the case should be denied. Id.
A party moving for relief pursuant to Rule 60(b)(1) based upon fraud, misrepresentation or other misconduct of an adverse party must do so within six months after entry of the judgment and must prove the fraud, misrepresentation or other misconduct by clear and convincing evidence. See Stringfellow, 451 So. 2d at 221. Relief from a final judgment based upon fraud upon the court may be sought pursuant to Rule 60(b)(6). See In re Estate of Pearson, 25 So. 3d 392, 395 (Miss. Ct. App. 2009). "[R]elief based on 'fraud upon the court' is reserved for only the most egregious misconduct, and requires a showing of 'an unconscionable plan or scheme which is designed to improperly influence the court in its decision.'" Id. (citing Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989)).
A party moving for relief pursuant to Rule 60(b)(2) based upon accident or mistake must do so within six months after entry of the judgment. A Rule 60(b)(2) motion will only be granted upon a showing of exceptional circumstances. Generally, "neither ignorance nor carelessness on the part of an attorney will provide grounds for relief." See Stringfellow, 451 So. 2d at 221.
A party may move to set aside a default judgment pursuant to Rule 60(b)(2). When ruling on such a motion, the trial court may consider: (1) whether the default was caused by excusable neglect or a bona fide technical error; (2) whether the claimant will suffer prejudice if the default judgment is set aside; and (3) whether the defaulting party has a colorable defense to the merits. See State Highway Comm'n of Miss. v. Hyman, 592 So. 2d 952, 955 (Miss. 1991).
A party moving for relief pursuant to Rule 60(b)(3) based upon newly discovered evidence must do so within six months after entry of the judgment. To justify relief, the evidence: (i) must have been in existence at the time of trial; (ii) could not have been discovered by due diligence prior to the expiration of the ten-day period in which a Rule 59 motion for new trial could have been filed; (iii) must be material and not cumulative; and (iv) must be of such character as to probably produce a different result in the event of a new trial or be of such character as to require a different ruling on summary judgment. See January v. Barnes, 621 So. 2d 915, 920 (Miss. 1992).
A party may move to set aside a void judgment pursuant to Rule 60(b)(4) more than six months after entry of the judgment if the delay in moving for relief was reasonable. See Ladner v. Logan, 857 So. 2d 764, 770 (Miss. 2003). A judgment is void if the trial court lacked jurisdiction over the subject matter or the parties or acted in a manner inconsistent with due process of law. See Bryant, Inc. v. Walters, 493 So. 2d 933, 938 (Miss. 1986).
A party may move to set aside the judgment pursuant to Rule 60(b)(5) if the judgment has been satisfied, released or discharged or a prior judgment upon which it is based has been reversed or otherwise vacated. Rule 60(b)(5), however, "does not authorize relief from a judgment on the ground that the law applied by the court in making its adjudication has been subsequently overruled or declared erroneous in another and unrelated proceeding." See Regan v. S. Cent. Reg'l Med. Ctr., 47 So. 3d 651, 655 (Miss. 2010).
A party may move to set aside the judgment pursuant to Rule 60(b)(6) if there are "extraordinary and compelling" circumstances justifying relief. When ruling on a Rule 60(b)(6) motion, the trial court may consider the following factors: "(1) [t]hat final judgments should not lightly be disturbed; (2) that the Rule 60(b) motion is not to be used as a substitute for appeal; (3) that the rule should be liberally construed in order to achieve substantial justice; (4) whether the motion was made within a reasonable time; (5) [omitted factor relevant only to default judgments]; (6) whether if the judgment was rendered after a trial on the merits-the movant had a fair opportunity to present his claim or defense; (7) whether there are intervening equities that would make it inequitable to grant relief; and (8) any other factors relevant to the justice of the judgment under attack." See Carpenter v. Berry, 58 So. 3d 1158, 1162 (Miss. 2011).
The trial court has discretion to grant or deny a Rule 60(b) motion, unless the judgment is void, in which case the court is required to set aside the judgment. See Sartain v. White, 588 So. 2d 204, 211 (Miss. 1991).
Motions for relief under this rule are filed in the original action, rather than as an independent action. Rule 60 motions for relief from a judgment filed no later than ten days after entry of judgment toll the time period in which an appeal may be taken. M.R.A.P. 4(d).
Rule 60 motions filed more than ten days after entry of judgment do not toll the time period in which an appeal may be taken. A Rule 60(b) motion for relief from a judgment does not automatically stay execution upon the judgment. The trial court has discretion to stay execution upon the judgment while a Rule 60(b) motion is pending. M.R.C.P. 62(b).
Ordinarily, the filing of a notice of appeal transfers jurisdiction from the trial court to the appellate court. Rule 60, however, confers limited concurrent jurisdiction to the trial court to grant relief under Rule 60(a) and (b) even if a notice of appeal has been filed. If the record on appeal has been transmitted to the appellate court, then leave must be obtained from the appellate court to make corrections to a judgment or order pursuant to Rule 60(a) or to move for relief under Rule 60(b). McNeese v, McNeese, 129 So. 3d 125, 128 (Miss. 2013); Griffin v. Armana 679 So. 2d 1049, 1050 (Miss. 1996); Ward v. Foster, 517 So. 2d 513 (Miss. 1987).
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