                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2007-CA-02023-SCT


DANNY HOLLAND

v.

THE PEOPLES BANK & TRUST COMPANY


DATE OF JUDGMENT:                         10/09/2007
TRIAL JUDGE:                              HON. L. JOSEPH LEE
COURT FROM WHICH APPEALED:                PANOLA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   ROBERT Q. WHITWELL
ATTORNEYS FOR APPELLEE:                   SCOTT R. HENDRIX
                                          L. BRADLEY DILLARD
NATURE OF THE CASE:                       CIVIL - TORTS-OTHER THAN PERSONAL
                                          INJURY & PROPERTY DAMAGE
DISPOSITION:                              AFFIRMED - 12/11/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE SMITH, C.J., CARLSON AND RANDOLPH, JJ.

       CARLSON, JUSTICE, FOR THE COURT:

¶1.    Danny Holland filed suit against Renasant Bank f/k/a Peoples Bank & Trust Company

on or about November 20, 1998, in the Circuit Court for the Second Judicial District of

Panola County, alleging negligent and fraudulent misrepresentation, breach of fiduciary duty

and breach of covenants of good faith and fair dealing. Holland sought compensatory

damages in the amount of $5,000,000 and punitive damages in the amount of $10,000,000.
Upon the trial court’s grant of summary judgment in favor of the Bank, Holland appealed to

us. Finding no error, we affirm.

                  FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.    The business relationship between Danny Holland and Renasant Bank f/k/a Peoples

Bank & Trust Company began in February 1996. Between February and April 1996, the

Bank made various loans to Holland at a total of more than two million dollars, all of which

were collateralized with real estate, equipment, cattle, and horses, as well as property in

Lafayette County. This included a $500,000 revolving line of credit that Holland sought to

use for expenses associated with his cotton brokerage business. The parties dispute whether

the Bank by and through its employee, William Jeffreys,1 also promised to loan Holland

additional funds for the purpose of covering margin calls in commodities trading. Holland

contends he informed William Jeffreys that in the event cotton prices dropped below eighty

cents a pound, he would need an additional $200,000, for a total line of credit in the amount

of $700,000, for the purpose of covering margin calls, and that Jeffreys orally promised to

extend the line of credit for that purpose. On the other hand, the Bank maintains that Holland

asked for an extended line of credit in the amount of $100,000 for the purpose of covering

margin calls, which the Bank denied due to Holland not being able to produce more

collateral. Additionally, the Bank contends that Jeffreys did not have loan authority for such




       1
           Sometimes spelled “Jeffries” in the record.

                                               2
an amount and that a loan in this amount would have had to have been approved by the Bank

board.

¶3.      Holland desired to sell his Yocona Bottom Lafayette County property (hereinafter the

“Lafayette County property”). The breach-of-fiduciary-duty allegations stem from the sale

of this property. Holland had hoped to arrange with the bank a section1031 2 tax benefit land

swap wherein he would find replacement property for the Yocona Bottom property to avoid

a capital gains tax. William Jeffreys, on behalf of the Bank, was to act as escrow agent for

the transaction. The Bank contends that this agreement was negotiated, but was never

finalized because the Bank asked for, but never received, more collateral from Holland to

cover the additional loan he needed to secure the replacement property. The Bank further

contends that the sale proceeds were received by the Bank, but never deposited in an escrow

account because there was no agreement to that end. According to the Bank, it held the

check to give Holland opportunity to produce more collateral for the proposed escrow

exchange. When additional collateral did not materialize, the Bank offset the $237,000

against debt owed to them by Holland, and Holland claims that this action by the Bank was

a breach of fiduciary duty because these loans were not in default. The Bank contends that

the Lafayette County property was its collateral, and that the Bank was merely offsetting the

proceeds to release the collateral. Holland asserts that with no extended line of credit and no




         2
             See 26 U.S.C.A. §1031 (Supp. 2008).

                                               3
proceeds from the Lafayette County sale, he was unable to cover his margin calls, which led

to significant financial losses and loss of goodwill in his cotton brokerage enterprise.

¶4.    Holland thus sold collateral (i.e., cattle) which the Bank held. The Bank, in turn,

considered Holland to have defaulted on the terms of his loans. Subsequently, Holland

entered into a workout agreement with the Bank to extend the loans to give him time to

liquidate his assets to pay down the debt. Holland, by and through counsel, negotiated and

entered into a workout agreement with the Bank, signed an amended promissory note, and

then later signed a second amended promissory note. Holland eventually paid off the Bank.

¶5.    Holland subsequently filed suit against the Bank, alleging in his complaint negligent

misrepresentation, fraudulent misrepresentation, and breach of fiduciary relationship. This

Court appointed Senior Status Judge Robert Kenneth Coleman as Special Judge to preside

and conduct all proceedings in this case. The Bank filed a motion for summary judgment,

which was denied by Judge Coleman by way of an order dated February 24, 2006, and

entered on March 3, 2006. The Bank petitioned this Court for an interlocutory appeal, which

was denied by a three-justice panel of this Court by order entered on March 29, 2006.

Renasant Bank v. Holland, 2006-M-00436 (Miss. June 29, 2006). Thereafter, the Bank filed

a Motion for Reconsideration of Denial of Petition for Permission to Appeal Interlocutory

Order, which motion for reconsideration was denied by the en banc Court by order entered

on June 29, 2006. On October 12, 2006,            Judge Coleman recused himself from the

proceedings. By order entered on January 8, 2007, this Court appointed Judge L. Joseph Lee,

Presiding Judge of the Court of Appeals of Mississippi, as Special Judge to preside and

                                              4
conduct all proceedings in this case. On March 20, 2007, Judge Lee entered an order setting

this case for trial on March 3, 2008. The Bank, on July 19, 2007, filed another motion asking

the trial court to reconsider the previously-entered order denying summary judgment.

Holland objected to the Bank’s motion for reconsideration, asserting: (1) the case presented

genuine issues of material fact; (2) the Bank’s motion was untimely filed pursuant to

Mississippi Rule of Civil Procedure 59(e); and (3) a successor judge was precluded from

overruling a prior order entered by a predecessor judge.

¶6.    Judge Lee relied on Mauck v. Columbus Hotel Co., 741 So. 2d 259 (Miss. 1999), as

the basis for his reconsideration of Judge Coleman’s previous denial of the Bank’s motion

for summary judgment insomuch as Mauck stood for the premise that a denial of summary

judgment is not a final judgment on the merits, nor is it binding upon successor courts.

Mauck, 741 So. 2d at 268. The trial judge further ruled that Holland had no basis for relief

under the law given that the promise to lend money in the future is not a past or present fact

and thus “not such a representation as will support recovery under a theory of negligent

misrepresentation” (quoting Bank of Shaw v. Posey, 573 So. 2d 1355, 1360 (Miss. 1990)).

As to Holland’s claim that the Bank’s loan officer, William Jeffreys, promised him money

beyond the terms of Holland’s written contract with the Bank, the trial court found that

Holland’s claim failed under Godrey, Bassett & Kuykendall Architects, LTD. v. Huntington

Lumber & Supply Co., 584 So. 2d 1254, 1257 (Miss. 1991), because written contracts cannot

be altered by prior oral agreements and because any parol evidence submitted to vary the

written contract terms is inadmissible. The trial court further cited Austin Development Co.

                                              5
v. Bank of Meridian, 569 So. 2d 1209 (Miss. 1990) in support of the Bank’s argument that

Holland had waived any cause of action against the Bank by executing the workout

agreements and amendments to his promissory notes. Additionally, the trial court noted that

Holland was unable to produce any evidence of damages to his business which could be

attributed to the Bank’s actions.

¶7.     In its opinion, the trial court did not specifically address the claim of breach of

fiduciary duty relating to the failed escrow agreement.

                                       DISCUSSION

¶8.    Holland presents to this Court five issues for our review: (1) whether the trial court

erred in granting the Bank’s motion for summary judgment; (2) whether the trial court erred

in ruling that Holland had waived his claims by signing renewal notes; (3) whether the

successor trial judge erred in granting the Bank’s motion for reconsideration of a predecessor

judge’s previous order denying summary judgment; (4) whether the Bank waived the claims

in its motion for reconsideration; and (5) whether the trial court erred in granting summary

judgment because other genuine issues of material fact were present and should have been

resolved by a jury. Today’s discussion combines Holland’s first assignment of error with his

fifth assignment of error, since the issue of damages discussed therein relates back to the

elements of both fraudulent and negligent misrepresentation.




                                              6
       I.      WHETHER THE TRIAL COURT ERRED IN GRANTING THE
               BANK’S MOTION FOR SUMMARY JUDGMENT.

¶9.    In reviewing a trial court’s decision to grant summary judgment, this Court uses a de

novo standard of review. Franklin County Mem'l Hosp. v. Miss. Farm Bureau Mut. Ins.

Co., 975 So. 2d 872, 874 (Miss. 2008) (citing Callicutt v. Prof'l Servs. of Potts Camp, Inc.,

974 So. 2d 216, 219 (Miss. 2007)). The evidence must be viewed in the light most favorable

to the non-moving party and if, in this view, the moving party is entitled to a judgment as a

matter of law, then summary judgment should be granted in his favor. Otherwise, the motion

should be denied. Palmer v. Anderson Infirmary Benevolent Ass'n, 656 So. 2d 790, 794

(Miss. 1995) (citing Brown v. Credit Center, Inc., 444 So. 2d 358, 362 (Miss. 1983)).

¶10.   Mississippi Rule of Civil Procedure 56(c) states in pertinent part:

       The judgment sought shall be rendered forthwith if the pleadings, depositions,
       answers to interrogatories and admissions on file, together with the affidavits,
       if any, show that there is no genuine issue as to any material fact and that the
       moving party is entitled to a judgment as a matter of law.

A fact is material if it "tends to resolve any of the issues properly raised by the parties."

Simpson v. Boyd, 880 So. 2d 1047, 1050 (Miss. 2004) (quoting Palmer, 656 So. 2d at 794).

Even where the trial court finds that there is nothing before it that indicates a genuine dispute

of material fact and finds that the movant is otherwise entitled to summary judgment, the trial

court may “nevertheless be justified in denying summary judgment when, in its view, a full

exposition of the facts may result in a triable issue or is warranted in the interest of justice.”

Great Southern Nat’l Bank v. Minter, 590 So. 2d 129, 135 (Miss. 1991) (quoting Brown v.

McQuinn, 590 So. 2d 1098, 1095 (Miss. 1986)).

                                                7
¶11.   Holland contends he informed Jeffreys that, in the event cotton prices dropped below

eighty cents a pound, he would need an additional $200,000 (for a total of a $700,000) line

of credit, for the purpose of covering margin calls in commodities trading. He further claims

that Jeffreys orally promised to extend the line of credit an additional $200,000 to cover

margin calls. Holland maintains that when cotton prices did drop, his business suffered

losses due to the Bank’s negligent and fraudulent misrepresentations regarding his line of

credit. On the other hand, the Bank maintains that Holland asked for an extended line of

credit in the amount of $100,000 for the purpose of covering margin calls, which the Bank

denied due to Holland not being able to produce more collateral. The Bank further contends

that Jeffreys did not have the authority to either grant or deny a $200,000 extended line of

credit and that such action had to be presented to the Bank board for consideration.

Additionally, the Bank contends that Holland knew or should reasonably have known that

Jeffreys lacked this authority. Furthermore, the Bank contends that Holland cannot recover

based on future promises for an extended line of credit, nor can any oral agreement alter the

four corners of the written contract under the parol evidence rule.3

¶12.   The trial court ruled that Holland’s claim of negligent misrepresentation failed

because a promise to lend money is not a past or present existing fact but a “promise of



       3
        The parol evidence rule “seeks to preserve [the] integrity of written agreements by
refusing to permit contracting parties to attempt to alter [the] import of their contract through
[the] use of contemporaneous oral declarations.” Black’s Law Dictionary 1006 (5th ed.
1979). See also Heartsouth, PLLC v. Boyd, 865 So. 2d 1095, 1107-08 (Miss. 2003).


                                               8
future conduct” and as such is “not such a representation as will support recovery under a

theory of negligent misrepresentation.” Bank of Shaw v. Posey, 573 So. 2d 1355, 1360

(Miss. 1990); see also Moran v. Fairley, 919 So. 2d 969 (Miss. Ct. App. 2005). Although

the trial court did not specifically address the claim of fraudulent misrepresentation, the rule

is the same. In cases of fraud, relief cannot be based on future promises, “except in some

cases when a contractual promise is made with the present undisclosed intention of not

performing it.” Bank of Shaw, 573 So. 2d at 1360. Holland cites Kidd v. Kidd, 210 Miss.

465, 49 So. 2d 824, 827 (1951), for the same premise in support of his argument that Jeffreys

promised him the extended line of credit with the undisclosed intent not to perform.

¶13.    In order to recover under a theory of fraudulent misrepresentation, a plaintiff must

prove, by clear and convincing evidence, the following elements:

       (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's
       knowledge of its falsity or ignorance of the truth; (5) his intent that it should
       be acted on by the hearer and in the manner reasonably contemplated; (6) the
       hearer's ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely
       thereon; and (9) his consequent and proximate injury.

Bank of Shaw v. Posey, 573 So. 2d 1355, 1362 (Miss. 1990) (citing Ezell v. Robbins, 533

So. 2d 457 (Miss. 1988); Martin v. Winfield, 455 So. 2d 762, 764 (Miss. 1984); Franklin

v. Lovitt Equip. Co., Inc., 420 So. 2d 1370, 1373 (Miss. 1982)). Even if the facts as espoused

by Holland were accepted as true, the record reveals that Holland is unable to make a clear

and convincing showing that Jeffreys was aware that there would be no extended line of

credit, yet promised Holland the $200,000. As to the alleged misrepresentation, Holland’s

contention that Jeffreys promised him the $200,000 is flatly denied by Jeffreys and the Bank.

                                                 9
Holland admits that there was never an actual agreement to extend the line of credit by

$200,000. He states that he told Jeffreys he might need the money at a future date based on

the cotton market. Furthermore, Holland would have to prove that he had a right to rely on

such a falsehood. However, Holland should have reasonably known that Jeffreys lacked

authority to lend that amount of money and that any loan proposals would have to be brought

before the Bank’s board.

¶14.   Absent a showing of fraud, the trial court was eminently correct in finding that the

written loan agreement could not be altered by prior oral agreements. See Godfrey, Bassett,

& Kuykendall Architects, LTD. v. Huntington Lumber & Supply Co., 584 So. 2d 1254,

1257 (Miss. 1991); see also Franklin v. Lovitt Equipment Co., 420 So. 2d 1370, 1372 (Miss.

1982). Furthermore, this Court has held: “[A] person is under an obligation to read a contract

before signing it, and will not as a general rule be heard to complain of an oral

misrepresentation the error of which would have been disclosed by reading the contract.”

Stephens v. Equitable Life Assurance Soc'y of the United States, 850 So. 2d 78, 82 (Miss.

2003) (quoting Godfrey, 584 So. 2d at 1257) (citations omitted). The loan agreement

provided for a $500,000 line of credit, and the trial court did not err in finding that any prior

oral agreement that attempts to alter this written agreement is inadmissible.

¶15.   In the alternative, Holland argues that, if not fraudulent, then Jeffreys’s

misrepresentation was negligent. This Court has distinguished fraudulent representation and

negligent representation:



                                               10
       The basis for damages resulting from negligent misrepresentation is the lack
       of care; the basis for damages resulting from fraud is the want of honesty. See
       Restatement of the Law of Torts (Second) sections 549 and 552 (1977). The
       lack of care in negligent misrepresentation and the want of honesty in
       fraudulent misrepresentation in business transactions give rise to distinct
       causes of action, the one in tort, the other in fraud.

Bank of Shaw, 573 So. 2d at 1360 (quoting First Money, Inc. v. Frisby, 369 So. 2d 746,

750 (Miss. 1979)). In order to establish negligent misrepresentation, the following elements

must be proven:

       (1) a misrepresentation or omission of a fact; (2) that the representation or
       omission is material or significant; (3) that the person/entity charged with the
       negligence failed to exercise that degree of diligence and expertise the public
       is entitled to expect of such persons/entities; (4) that the plaintiff reasonably
       relied upon the misrepresentation or omission; and (5) that the plaintiff
       suffered damages as a direct and proximate result of such reasonable reliance.
       Horace Mann Life Ins. Co. v. Nunaley, 960 So. 2d 455, 461 (Miss. 2007)
       (citing Skrmetta v. Bayview Yacht Club, Inc., 806 So. 2d 1120, 1124 (Miss.
       2002)).

Hazlehurst Lumber Co. v. Miss. Forestry Comm'n, 983 So. 2d 309, 313 (Miss. 2008). The

aforementioned elements must be proven by a preponderance of the evidence. Bank of Shaw,

573 So. 2d at 1360. As was the case with the fraudulent-misrepresentation allegation,

Holland was unable to show that he reasonably could have relied on any assertions by

Jeffreys that an additional $200,000 line of credit would be forthcoming, given that Jeffreys

lacked actual and apparent authority to approve a loan agreement of such financial

magnitude.

¶16.   On the issue of damages, the trial court held that Holland failed to produce

documentation in support of his claim that the Bank’s refusal to grant his loan resulted in


                                              11
losses to his cotton and farming business. Holland argues that the testimony of his accountant

would establish that the Bank’s alleged misappropriation of the $237,000 in proceeds from

the Lafayette County land sale caused him to suffer severe monetary damages. Holland

further argues that causal connection is a question of fact to be determined by a jury. See

e.g., Glover v. Jackson State Univ., 968 So. 2d 1267, 1277 (Miss. 2007). Causation and

damages are but two elements of Holland’s claims. As discussed previously, Holland has

failed to establish reasonable reliance on any assertions by Bank employee William Jeffreys.

Therefore, the trial court did not err in finding as a matter of law that Holland was not

entitled to recovery of monetary damages.

¶17.   As to the claim of breach of fiduciary duty, Holland fails to show that there was an

escrow agreement that would impose a fiduciary duty on the Bank or its agent. This Court

has stated the following regarding fiduciary relationships:

       Although every contractual agreement does not give rise to a fiduciary
       relationship, in Mississippi such a relationship may exist under the following
       circumstances:

              (1) the activities of the parties go beyond their operating on their
              own behalf, and the activities [are] for the benefit of both; (2)
              where the parties have a common interest and profit from the
              activities of the other; (3) where the parties repose trust in one
              another; and (4) where one party has dominion or control over
              the other.

Robley v. Blue Cross/Blue Shield, 935 So. 2d 990, 995 (Miss. 2006) (citing Univ. Nursing

Assocs., PLLC v. Phillips, 842 So. 2d 1270, 1274 (Miss. 2003); Carter Equip. Co. v. John

Deere Indus. Equip. Co., 681 F.2d 386, 391 (5th Cir. 1982)). The Bank argues that this


                                              12
escrow agreement was merely a proposed agreement that the Bank rejected on the basis that

Holland could not produce more collateral. This Court is unable to find from the record

before us any of the requisite elements for a fiduciary relationship where Holland has failed

to produce evidence that the agreement existed. It is undisputed that Holland sold property

that was the Bank’s collateral, and that the Bank offset Holland’s debt owed to them with the

sales proceeds. Under the holding in Wise v. Valley Bank, 861 So. 2d 1029 (Miss. 2003),

unless there was an agreement to the contrary, the relationship between Holland and the Bank

was one of debtor/creditor. As to the duty owed by banks, this Court held in Wise:

       “The relationship between a bank and a depositor, without an agreement to the
       contrary, is simply one of debtor and creditor, and a deposit is not, ordinarily,
       a trust fund.” Deposit Guar. Bank & Trust Co. v. Merchants' Bank & Trust
       Co., 171 Miss. 553, 158 So. 136, 137 (1934) (citing Moreland v. People's
       Bank of Waynesboro, 114 Miss. 203, 263, 74 So. 828 (1917)). Furthermore,
       we have found that the relationship between a bank and its depositor is
       generally not a fiduciary one. Merchants & Planters Bank of Raymond v.
       Williamson, 691 So. 2d 398, 403 (Miss. 1997).

Wise, 861 So. 2d at 1033. Logically, “[t]he existence of a fiduciary duty must be established

before a breach of that duty can arise.” Merchants & Planters Bank v. Williamson, 691 So.

2d 398, 403 (Miss. 1997) (citing Lowery v. Guar. Bank and Trust Co., 592 So. 2d 79, 83

(Miss. 1991)).

¶18.   Assuming arguendo that Holland could establish a prime facie case of fraudulent or

negligent misrepresentation or breach of fiduciary duty, those claims would be deemed

waived based on Holland’s signing the renewal notes and participating in the workout

agreement with the Bank, as discussed infra in Holland’s second assignment of error.


                                              13
¶19.     For the reasons discussed, we find these combined assignments of error to be without

merit.

         II.    WHETHER THE TRIAL COURT ERRED IN RULING THAT
                HOLLAND HAD WAIVED HIS CLAIM BY VIRTUE OF
                SIGNING RENEWAL NOTES.

¶20.     Holland argues that the workout agreement pertained to other loans and did not relate

to the Bank’s alleged misappropriation of the $237,000 from the Lafayette County land sale.

Therefore, according to Holland, the trial court erred in granting summary judgment based

on its view that Holland had waived his claims by participating in the workout agreement,

because only a jury could make a factual finding as to the agreement’s terms. The Bank

argues that all possible defenses and claims relating to the notes and otherwise available to

Holland were waived at the time Holland renewed the promissory notes and signed the

workout agreement.

¶21.     The trial court cited Austin Development Co., Inc. v. Bank of Meridian, 569 So. 2d

1209 (Miss. 1990) in support of its granting the Bank’s motion for summary judgment on this

issue. In Austin, Austin D. Check was indebted to Bank of Meridian for approximately

$400,000. Id. at 1210. Check requested a $50,000 loan from the Bank to finance a real estate

development that was to be financed by Ronald Evans. The Bank requested more collateral,

and Evans provided Check with a letter of credit in the amount of $50,000 drawn on Valley

View Bank. Id. Check assigned the letter of credit to the Bank so that it could be collected

on should the loan ever be in default. Id. Eventually Check’s loan amount increased to

$110,000, as did the letter of credit provided by Evans. When the loan matured on September

                                              14
3, 1985, it went unpaid. The letter of credit was set to expire September 9, 1985; however,

Bank of Meridian failed to collect on the letter of credit until September 12, 1985. Id. Valley

View Bank refused to pay on the expired letter of credit, and Bank of Meridian threatened

collection unless Check renewed the note in the principal amount of $110,000. Id. When

the loan was again in default, the Bank of Meridian brought suit against Check and his

company. Bank of Meridian was granted summary judgment by the trial court on the basis

that the defendants had legally waived any defense to the notes and any other possible causes

of action available at the time the renewal notes were executed and the interest was paid. Id.

at 1211. Summary judgment in the Austin case was affirmed by this Court based on the rule

promulgated in Citizens National Bank v. Waltman, 344 So. 2d 725 (Miss. 1977), Brickell

v. First National Bank, 373 So. 2d 1013 (Miss. 1979), and Turner v. Wakefield, 481 So. 2d

846 (Miss. 1985), that renewal of the note constituted a waiver of all claims against the bank,

including the claim of negligent impairment allegedly caused by the Bank of Meridian’s loss

of the $110,000 collateral entrusted to it by the defendants. Id. at 1212. In Austin, the Court

also cited Gay v. First National Bank, 172 Miss. 681, 160 So. 904 (1935), which stood for

the premise that “[w]here a party has full knowledge of all defenses to a note and executes

a new note payable at a future date, he then waives all his defenses and becomes obligated

to pay the new note.” Id. (quoting Gay, 172 Miss. at 686, 160 So. at 905).

¶22.   Under the holdings in Austin and its progeny, assuming arguendo that the true facts

are as asserted by Holland, the trial court did not err in finding that Holland had waived his

claims by entering into the workout agreement and by signing the renewal notes. The

                                              15
language in Austin is clear that by signing renewal notes, the defendants in that case had

waived not only defenses to the notes but “any possible causes of action otherwise available

to the defendants” against the Bank, including the negligence claim. Austin, 569 So. 2d at

1211. Austin is applicable to today’s case insomuch as all possible claims that Holland could

have had against the Bank, including the negligence claim, were waived by the workout

agreement and renewal notes.

¶23.   We thus find, for the reasons stated, that this assignment of error has no merit.

       III.   WHETHER THE SUCCESSOR TRIAL JUDGE ERRED IN
              GRANTING     THE   BANK’S    MOTION    FOR
              RECONSIDERATION OF AN EARLIER JUDGE’S ORDER
              DENYING SUMMARY JUDGMENT.

¶24.   Holland contends that the trial court erred in granting the Bank’s Motion for

Reconsideration of Order Denying Summary Judgment, given that Judge Coleman already

had entered an order denying summary judgment and given that Judge Lee already had set

the date for trial. In support of this argument, Holland points to Mississippi Rule of Civil

Procedure 60(b)(6), which states in pertinent part:

       On motion and upon such terms as are just, the court may relieve a party or his
       legal representation from a final judgment, order, or proceedings for the
       following reasons:
       ....

       (6) any other reason justifying relief from the judgment.

Holland claims that since no other subparagraph of Rule 60(b) applies (i.e., fraud, accident

or mistake, etc.) and no new evidence was put forth by the Bank that would justify relief, the

original order denying summary judgment entered by Judge Coleman should stand.

                                             16
¶25.   The Bank contends that Judge Lee was not bound by Judge Coleman’s previous denial

of its motion for summary judgment. This issue is laid to rest based on our prior case law.

“An order denying summary judgment is neither final nor binding upon the court or

successor courts.” Mauck v. Columbus Hotel Co., 741 So. 2d 259, 268 (Miss. 1999) (citing

Great So. Nat’l Bank v. Minter, 590 So. 2d 129, 133, 135 (Miss. 1991)). Moreover, “[a]t

the point of final decision on the merits [the trial judge] was duty bound to apply the law to

the record then before the court, regardless of any prior ruling denying summary judgment.”

Id. at 268-69. In other words, the law-of-the-case doctrine, wherein a successor judge is

precluded from correcting errors of law made by the predecessor judge or from revising the

predecessor judge’s order or judgment on its merits, has no applicability where the order or

judgment is not of a final character. Mauck, 741 So. 2d at 268. This is true even where there

has been an intervening denial of a petition for permission to file an interlocutory appeal,

given that this Court’s denial of an interlocutory appeal is not a final judgment on the merits.

Id.

¶26.   Thus, Holland’s reliance on Mississippi Rule of Civil Procedure 60(b)(6) is misplaced

in that the rule applies only where the judgment or order is final. In accordance with Mauck,

an order denying a motion for summary judgment is not a final judgment. For the reasons

stated, Judge Lee was acting within his authority as trial judge in considering and granting

the Bank’s Motion for Reconsideration of Order Denying Summary Judgment. Accordingly,

this assignment of error is without merit.



                                              17
       IV.    WHETHER THE BANK PREVIOUSLY HAD WAIVED THE
              CLAIM S PRESENTED IN ITS M OTION FOR
              RECONSIDERATION.

¶27.   Finally, Holland argues that it was error for Judge Lee to take up the Bank’s motion

for reconsideration because the motion was filed seventeen months after the entry of Judge

Coleman’s order denying the Bank’s previous motion and eleven months after this Court

denied the Bank’s interlocutory appeal. Furthermore, Holland contends that the Bank was

dilatory in filing its motion and that such delay should be held to constitute a waiver of

claims by the Bank (citing East Mississippi State Hospital v. Adams, 947 So. 2d 887, 891

(Miss. 2007) (failure to timely pursue affirmative defense, together with active participation

in the litigation, served as a waiver of the affirmative defense)). See also MS Credit Ctr.,

Inc. v. Horton, 926 So. 2d 167, 181 (Miss. 2006) (“absent extreme and unusual

circumstances–an eight month unjustified delay in the assertion and pursuit of any

affirmative defense or other right which, if timely pursued, could serve to terminate the

litigation, coupled with active participation in the litigation process, constitutes waiver as a

matter of law.”) (n. 9 omitted).

¶28.   The Bank gives the following timeline in support of its assertion that it timely filed

a motion for reconsideration. On January 8, 2007, an order was entered replacing Judge

Coleman with Judge Lee. Renasant first discussed the motion for reconsideration via

telephone conference with Judge Lee and Holland in January 2007. On January 23, 2007, a

completed, bound set of all prior pleadings was prepared for Judge Lee for the purpose of

reconsideration of the motion for summary judgment. Renasant caused two fact depositions

                                              18
to be conducted on April 26 and 27, 2007, at its expense. In March 2007, there was a second

telephone conference among the parties and the trial judge, with an order setting the case for

trial immediately following. The Bank’s Motion for Reconsideration of Order Denying

Summary Judgment was filed on July 19, 2007. MS Credit Center, Inc. v. Horton, 926 So.

2d 167, 181 (Miss. 2006), also stands for the premise that whether a motion is timely is to

be a discretionary determination and is left to the trial court on “a case by case basis”

considering the facts and circumstances. Thus, Judge Lee was well within his authority to

consider and grant the motion. This Court has held that only “[t]he commencement of trial

closes the season for granting motions for summary judgment.” Hurst v. Sw. Miss. Legal

Servs. Corp., 610 So. 2d 374, 384 (Miss. 1992) (overruled on other grounds). Even in a case

where trial was a few weeks away, this Court upheld a trial court’s grant of summary

judgment as being within the trial court’s discretion where the threshold under Rule 56(c)

was satisfied. Noxubee County Sch. Dist. v. United Nat’l Ins. Co., 883 So. 2d 1159, 1163

(Miss. 2004). Accordingly, based on our discussion of this issue, we find this issue to be

without merit.

                                      CONCLUSION

¶29.   For the aforementioned reasons, the grant of summary judgment in favor of Renasant

Bank f/k/a Peoples Bank & Trust Company and against Danny Holland by the Circuit Court

for the Second Judicial District of Panola County is affirmed.

¶30.   AFFIRMED.



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    SMITH, C.J., WALLER, P.J., DICKINSON, RANDOLPH AND LAMAR, JJ.,
CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION. DIAZ, P.J., NOT PARTICIPATING.




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