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DARRYL SHELTON v. DR. TOMMY G. PUCKETT

FEBRUARY 12, 1986

DARRYL SHELTON
v.
DR. TOMMY G. PUCKETT, ET AL AND THE HONORABLE RICHARD W. McKENZIE, CIRCUIT JUDGE



BEFORE WALKER, P.J.; DAN M. LEE AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

This matter is before the Court on Darryl Shelton's Petition For Mandamus or Extraordinary Relief. Miss. Code Ann. 11-41-1 et seq. (1972); Rule 32, Miss.Sup.Ct.Rules. The matter arises from a civil action for slander, interference with employment contract or prospective employment and other outrageous conduct wherein Dr. Tommy G. Puckett, and others have been named as Defendants.

The instant application, as amended, seeks to thwart a new trial of the matter ordered by Hon. Richard W. McKenzie, presiding over the Circuit Court of Forrest County, Mississippi.

 A bit of background is necessary to understand the present proceedings. On November 22, 1983, this case was originally called for trial in the Circuit Court of Forrest County. On the second day of the trial, Plaintiff Shelton moved for a mistrial on grounds that the proceedings had been conducted in a manner prejudicial to his legitimate interests and the mistrial was granted.

 Thereafter, Plaintiff Shelton moved that Judge McKenzie recuse himself from further participation in the case. That motion was denied. This was followed by Shelton's application to this Court for a writ of prohibition wherein he sought to prohibit Judge McKenzie from presiding at the new trial. That motion was denied by this Court on August 22, 1984, without prejudice on grounds that Judge McKenzie had not been made a party to the suit. Thereafter, Shelton renewed his motion for recusal in the Circuit Court and again Judge McKenzie overruled the request.

 A second trial was held in March of 1985, at the conclusion of which the jury returned a verdict for Shelton and against Defendants in the amount of $100,000. Defendants filed the usual post-trial motions and on April 18, 1985, Judge McKenzie entered an order granting Defendants a new trial on all issues. See Rule 59, Miss.R.Civ.P.

 Shelton's initial complaint here was that the order granting the motion for a new trial failed to specify the grounds of the court's action. Shelton argued that he needed to know what errors had occurred in the trial for the purpose of enabling him to avoid such errors if possible at the new trial. On November 15, 1985, this portion of Shelton's application became moot as the Circuit Court entered an order clarifying the previous orders and setting forth the grounds for his actions.

 As his application has been amended, Shelton now urges that we treat the case as an appeal from the order granting a new trial. The short answer here is that the granting of a new trial is not a final judgment and thus is ordinarily not appealable. Assuming, arguendo, that the matter were before us, it bears emphasis that the discretion vested in a trial judge with respect to a motion for a new trial is quite broad. Rule 59, Miss.R.Civ.P. Our authority to reverse is limited to those cases wherein the trial judge has abused his discretion.

 Clark v. Columbus & Greenville Railway Co., 473 So.2d 947, 950 (Miss.1985); Jesco, Inc. v. Whitehead, 451 So.2d 706 (Miss.1984). There is nothing before us from which we may conclude with confidence that the trial judge abused his discretion in this matter.

 There is one feature of the proceedings below which has caused us some concern and which requires comment. Shelton urges that during the time he was giving his testimony in open court the circuit judge was carrying on a conversation with the court administrator. Counsel argues that this was distracting to the jury and particularly to the witness who was on cross-examination.

 The following exchange between the trial judge, counsel and the plaintiff gives flavor to the point.

 BY T. M. BRABHAM:

 Yes, sir, Your Honor, there's one other request - BY THE ...


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