                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2018-CT-00027-SCT

DESOTO COUNTY, MISSISSIPPI

v.

STANDARD CONSTRUCTION COMPANY, INC.

                            ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                        09/29/2017
TRIAL JUDGE:                             HON. GERALD W. CHATHAM, SR.
TRIAL COURT ATTORNEYS:                   WILLIAM P. MYERS
                                         ANTHONY NOWAK
COURT FROM WHICH APPEALED:               DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 ROBERT QUIMBY
                                         ANTHONY NOWAK
ATTORNEY FOR APPELLEE:                   WILLIAM P. MYERS
NATURE OF THE CASE:                      CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                             THE JUDGMENT OF THE COURT OF
                                         APPEALS IS AFFIRMED IN PART AND
                                         REVERSED IN PART. THE JUDGMENT OF
                                         THE DESOTO COUNTY CIRCUIT COURT
                                         IS AFFIRMED - 09/12/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      COLEMAN, JUSTICE, FOR THE COURT:

¶1.   On September 29, 2017, the circuit court, sitting as an appellate court, reversed a

decision of the DeSoto County Board of Supervisors. Eleven days later, on October 10,

2017, DeSoto County filed a motion seeking rehearing under Mississippi Rule of Appellate

Procedure 40. On December 22, 2017, the circuit court denied the motion. On January 3,

2018, DeSoto County filed a notice of appeal “from the final judgment entered in this case
on September 29, 2017 and the denial of the Motion for Rehearing by order entered on

December 22, 2017.”

¶2.    The Mississippi Court of Appeals dismissed DeSoto County’s entire appeal as

untimely because the motion for rehearing did not toll the thirty-day time period for filing a

notice of appeal under Mississippi Rule of Appellate Procedure 4(a). DeSoto Cty. v.

Standard Constr. Co., Inc., No. 2018-CC-00027-COA, 2019 WL 276038, at **2, 5 (¶¶ 13,

20) (Miss. Ct. App. Jan. 22, 2019). We granted DeSoto County’s petition for writ of

certiorari to review the Court of Appeals’ decision. While we agree that the appeal from the

order of September 29, 2017, was untimely and should be dismissed, DeSoto County timely

appealed the circuit court’s order of December 22, 2017. Even though the appeal of the

December order denying the motion for rehearing was timely, we hold that DeSoto County

has waived any argument that the circuit court abused its discretion in denying the motion.

Accordingly, we affirm the circuit court’s judgment.

                       FACTS AND PROCEDURAL HISTORY

¶3.    The DeSoto County Board of Supervisors denied Standard Construction Company’s

application for a condition use permit to mine sand and gravel. Standard Construction

appealed the decision to the circuit court under Mississippi Code Section 11-51-75 (Supp.

2018). On September 29, 2017, the circuit court entered an order reversing the board of

supervisors. On October 10, 2018, DeSoto County filed a motion for rehearing under

Mississippi Rule of Appellate Procedure 40. Standard Construction filed a response, arguing

that Rule 40 does not apply to opinions and orders handed down by a circuit court. Standard



                                              2
Construction also maintained that the motion for rehearing also was untimely under the

Mississippi Rules of Civil Procedure because it was filed more than ten days after the circuit

court had entered its order.

¶4.    On December 22, 2017, the circuit court denied the motion for rehearing, finding that

DeSoto County “ha[d] failed to point to any new evidence, mistakes of law or fact, or other

reason that would justify relief from the [circuit c]ourt’s Order or otherwise warrant the

[circuit c]ourt’s reconsideration of the original appeal.”

¶5.    On January 3, 2018, DeSoto County filed a notice of appeal of the “final judgment

entered in this case on September 29, 2017, and the denial of the Motion for Rehearing by

order entered on December 22, 2017.” While on appeal, Standard Construction filed a

motion to dismiss the appeal as untimely. Standard Construction argued that the Rule 40

motion was improper because it provided no authority for the circuit court to entertain a

motion for rehearing even when sitting as an appellate court. Alternatively, Standard

Construction argued that even if a circuit court may hear a Rule 40 motion, the motion did

not toll the time for filing an appeal. DeSoto County filed a response to the motion to

dismiss, arguing that the circuit court’s order of September 29, 2017, was not a final,

appealable judgment because the circuit court had failed to certify its order to the board of

supervisors.1 Alternatively, DeSoto County argued that, assuming the order was a final,

       1
          The Court of Appeals rejected the argument because Section 11-51-75 does not
contain any language requiring a circuit court to certify its order to the board of supervisors
in order for it to be considered a final, appealable judgment. Standard Constr., 2019 WL
276038, at *1 n.5. We agree. The circuit court’s order of September 29, 2017, was a final,
appealable judgment, which had “adjudicate[d] the merits of the controversy and settle[d]
all issues as to all the parties and require[d] no further action by the trial court.” Davenport

                                               3
appealable judgment, the Mississippi Rules of Appellate Procedure apply exclusively and its

motion for rehearing was timely because it was filed within fourteen days of the circuit

court’s order. As a second alternative, DeSoto County argued that the court should construe

its motion for rehearing as a motion to alter or amend a judgment timely filed under

Mississippi Rule of Civil Procedure 59(e).

¶6.    The Court ordered that the motion to dismiss be passed for consideration with the

merits of the appeal and assigned the case to the Mississippi Court of Appeals. The Court

of Appeals determined that it lacked jurisdiction and dismissed the entire appeal as untimely.

Standard Constr., 2019 WL 276038, at *5 (¶ 20). The Court of Appeals noted that DeSoto

County’s notice of appeal had been filed ninety-six days after the circuit court entered its

judgment and held that DeSoto County’s motion for rehearing did not toll the thirty day time

period for filing a notice of appeal. Id. The Court of Appeals wrote that the Mississippi

Rules of Appellate Procedure “reflect[] no tolling provision for the filing of a Mississippi

Rule of Appellate Procedure 40 motion for rehearing.” Id. at *3 (¶ 17). The Court of

Appeals rejected DeSoto County’s argument that its motion for rehearing should be

construed as a Mississippi Rule of Civil Procedure 59(e) motion to alter or amend a judgment

because it was not filed within ten days after the entry of the judgment. Id. at *4 (¶ 19). The

Court of Appeals recognized that the ten-day requirement under Rule 59(e) is absolute and

may not be extended. Id. Finally, the Court of Appeals wrote that an untimely Rule 59(e)



v. Hansaworld, USA, Inc., 212 So. 3d 767, 770 (¶ 10) (internal quotation marks omitted)
(quoting Brown v. Collections, Inc., 188 So. 3d 1171, 1174 (¶ 11) (Miss. 2016)). Put
simply, no other controversy or issue remained to be settled by the circuit court.

                                              4
motion may be considered a Rule 60(b) motion but that a Rule 60(b) does not toll the time

period in which an appeal may be taken. Id.

¶7.    We granted DeSoto County’s petition for a writ of certiorari to address whether the

Court of Appeals erred by dismissing the entire appeal.

                                        ANALYSIS

¶8.    Because DeSoto County appealed from two separate circuit court orders, we will

address each in turn.

I.     Order of September 29, 2017

¶9.    Rule 1 of the Mississippi Rules of Appellate Procedure provides that, “[w]hen these

rules provide for the making of a motion in the trial court, the procedure for making such

motion shall be in accordance with the practice of the trial court.” M.R.A.P. 1. A comment

to Rule 1 provides,

       Trial court practice is governed by the Mississippi Rules of Civil Procedure,
       Mississippi Rules of Evidence, Mississippi Rules of Criminal Procedure,
       applicable uniform rules, and local rules where adopted pursuant to M.R.C.P.
       83 or MRCrP 1.9. The term “trial court” in these rules includes a circuit or
       chancery court sitting as an appellate court.

M.R.A.P. 1 cmt.

¶10.   Here, DeSoto County chose to file a motion for rehearing under Rule 40(a). Rule

40(a) provides, in pertinent part,

       A motion for rehearing may be filed within 14 days after a decision is handed
       down on the merits of a case by the Supreme Court or the Court of Appeals.
       The motion shall state with particularity the points of law or fact which, in the
       opinion of the movant, the court has overlooked or misapprehended and shall
       contain such argument in support of the motion as movant desires to present.
       The motion for rehearing should be used to call attention to specific errors of

                                              5
       law or fact which the opinion is thought to contain; the motion for rehearing
       is not intended to afford an opportunity for a mere repetition of the argument
       already considered by the court. Oral argument in support of the motion will
       not be permitted.

M.R.A.P. 40(a).

¶11.   The plain language of the rule leaves no doubt that motions seeking relief based on

the reasons set forth in the rule apply strictly to decisions “by the Supreme Court or the Court

of Appeals.” M.R.A.P 40(a). Thus, a motion for rehearing under Rule 40(a) is not a viable

motion in the circuit court sitting as an appellate court. Because we hold that a Rule 40

motion is not viable, we agree with the Mississippi Court of Appeals’ analyzing the motion

as if it had been filed under the Mississippi Rules of Civil Procedure.

¶12.   Notwithstanding the style of a motion, if it challenges the correctness of a judgment

and is timely made within ten days, it will be treated as one made under Rule 59(e). Bruce

v. Bruce, 587 So. 2d 898, 902 (Miss. 1991). Rule 59(e) provides no extension of the ten-day

filing period based on service by mail of the entry of the judgment. See M.R.C.P. 59(e).

¶13.   We pause to address the Court’s holding in Wilburn v. Wilburn, 991 So. 2d 1185

(Miss. 2008), which is aptly distinguished by the Court of Appeals. See Standard Constr.,

2019 WL 276038, at *4 n.3. In Wilburn, the plaintiff had filed an untimely Rule 59(e)

motion, but the Court held that it nonetheless had jurisdiction over the appeal because the

defendant had failed to object at the trial level to the timeliness of the plaintiff’s untimely

motion. Wilburn, 991 So. 2d at 1191 (¶¶ 12-13). The Court of Appeals correctly notes that

unlike the circumstances in Wilburn, Standard Construction opposed DeSoto County’s

motion for rehearing and argued to the circuit court that it was an untimely Rule 59(e) motion

                                               6
because it had been filed more than ten days after the circuit court had entered its order.

Standard Constr., 2019 WL 276038, at *3 n.3. Thus, the Court’s holding in Wilburn is

inapplicable to the case before the Court today.

¶14.   The Court, looking to our federal counterpart rules, has adopted the view that “if a

motion is [filed] within ten days of the rendition of judgment, the motion falls under Rule

59(e) with the result that the time for filing a notice of appeal is tolled until the ruling on the

post-trial motions.” City of Jackson v. Jackson Oaks Ltd. P’ship, 792 So. 2d 983, 985 (¶

3) (Miss. 2001) (footnote omitted) (citing Bruce v. Bruce, 587 So. 2d 898, 904 (Miss. 1991);

M.R.A.P. 4(d)). “[T]he converse is also true, i.e., if the motion of this kind is filed later than

ten days after entry of judgment, it is to be considered a Rule 60 motion.” Jackson Oaks,

792 So. 2d at 985 (¶ 3).

       How a court treats a motion for reconsideration turns on the time at which the
       motion is [filed]. If the motion is [filed] within ten days of the rendition of
       judgment, the motion falls under Rule 59(e). If it is after that time, it falls
       under Rule 60(b).

Cannon v. Cannon, 571 So. 2d 976, 978 n.2 (Miss. 1990).2

¶15.   DeSoto County’s motion for rehearing, filed eleven days after the entry of the circuit

court’s judgment, falls under Rule 60(b). Rule 60(b) reads,

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

               (1) fraud, misrepresentation, or other misconduct of an adverse
               party;

       2
         The rule has since been amended to require that the motion be filed within ten days,
not served. M.R.C.P. 59(b).

                                                7
               (2) accident or mistake;

               (3) newly discovered evidence which by due diligence could not
               have been discovered in time to move for a new trial under Rule
               59(b);

               (4) the judgment is void;

               (5) the judgment has been satisfied, released, or discharged, or
               a prior judgment upon which it is based has been reversed or
               otherwise vacated, or it is no longer equitable that the judgment
               should have prospective application;

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

M.R.C.P. 60(b).

¶16.   The circuit court denied DeSoto County’s motion for rehearing because it “failed to

point to any new evidence, mistakes of law or fact, or other reason that would justify relief

from the [circuit c]ourt’s Order or otherwise warrant the [circuit c]ourt’s reconsideration of

the original appeal.” The language used by the circuit court tracks the reasons set out in Rule

60(b) that might justify relief from a judgment or order. See M.R.C.P. 60(b)(2)-(3). The

circuit court properly considered DeSoto County’s motion a Rule 60(b) motion for relief

from the judgment that had been filed within a reasonable time. See Jackson Oaks, 792 So.

2d at 985 (¶ 3).

¶17.   A Rule 60(b) motion filed more than ten days after a circuit court’s order is entered

does not toll the time to appeal. Michael v. Michael, 650 So. 2d 469, 471 (Miss. 1995);

M.R.A.P. 4(d).3 Therefore, the Court of Appeals correctly dismissed DeSoto County’s

       3
           Mississippi Rule of Appellate Procedure 4(d) provides, in relevant part,

       If any party files a timely motion of a type specified immediately below the

                                              8
appeal from the order of September 29, 2017, as untimely. However, as further explained

below, the Court of Appeals erred by dismissing the entire appeal as untimely. We proceed

by addressing the timeliness of DeSoto County’s appeal from the December 22, 2017 order

denying its motion for rehearing.

II.    Order of December 22, 2017

¶18.   “We review the grant or denial of a Rule 60(b) motion for abuse of discretion.” Smith

v. Doe, 268 So. 3d 457, 461 (¶ 8) (Miss. 2018) (citing Finch v. Finch, 137 So. 3d 227, 232

(¶ 11) (Miss. 2014)).

¶19.   Although we agree that DeSoto County’s appeal of the September 29, 2017 order was

untimely, DeSoto County’s appeal of the order of December 22, 2017, was timely. DeSoto

County’s filed its notice of appeal within thirty days of the circuit court’s order denying its

motion for rehearing. As discussed above, the circuit court properly treated DeSoto County’s

motion for rehearing as a Rule 60(b) motion.

¶20.   “‘[A]n order denying a motion under Rule 60(b) is final and appealable.’ . . . But an

appeal from a denial of the motion brings up for review only the order of denial itself and not

the underlying judgment.” Overbey v. Murray, 569 So. 2d 303, 305 (Miss. 1990) (quoting


       time for appeal for all parties runs from the entry of the order disposing of the
       last such motion outstanding. This provision applies to a timely motion under
       the Mississippi Rules of Civil Procedure (1) for judgment under Rule 50(b);
       (2) under Rule 52(b) to amend or make additional findings of facts, whether
       or not granting the motion would alter the judgment; (3) under Rule 59 to alter
       or amend the judgment; (4) under Rule 59 for a new trial; or (5) for relief
       under Rule 60 if the motion is filed no later than 10 days after the entry of
       judgment.

M.R.A.P. 4(d).

                                              9
11 Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 2871, at

258–259 (1973)). We do not have jurisdiction to review the circuit court’s underlying

judgment of September 29, 2017. However, because DeSoto County’s notice of appeal was

with respect to the order of December 22, 2017, the circuit court’s denial of the motion for

rehearing was properly before the Court of Appeals.

¶21.   As mentioned above, “Rule 60(b) provides for amendment to an order on the basis of

fraud, misrepresentation, mistake, or newly discovered evidence.” McNeese v. McNeese,

119 So. 3d 264, 272 (¶ 20) (Miss. 2013) (internal quotation marks omitted) (citing M.R.C.P.

60(b)). “Rule 60(b) motions are reserved for ‘exceptional circumstances,’ and a party is not

entitled to relief simply because he is unhappy with a judgment.” McNeese, 119 So. 3d at

272 (¶ 20) (quoting Perkins v. Perkins, 787 So. 2d 1256, 1261 (¶ 9) (Miss. 2001)).

Moreover, “[a] Rule 60(b) motion should be denied where it is merely an attempt to relitigate

a case.” McNeese, 119 So. 3d at 272 (¶ 20) (quoting Askew v. Askew, 699 So. 2d 515, 519

(¶ 17) (Miss. 1997)).

¶22.   On appeal, DeSoto County does not argue that the circuit court abused its discretion

in denying the motion under Rule 60(b). Because the Court’s analysis is limited to the

arguments actually raised, the ruling is not before the Court for review. See Roberts v. State,

234 So. 3d 1251, 1260 (¶ 21) (Miss. 2017). Accordingly, the circuit court’s order denying

DeSoto County’s motion for rehearing as a Rule 60(b) motion is affirmed.

¶23. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART
AND REVERSED IN PART. THE JUDGMENT OF THE DESOTO COUNTY
CIRCUIT COURT IS AFFIRMED.



                                              10
     RANDOLPH, C.J., KITCHENS AND KING, P.JJ., MAXWELL, BEAM AND
ISHEE, JJ., CONCUR. CHAMBERLIN AND GRIFFIS, JJ., NOT PARTICIPATING.




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