Before Thomas, P.j., Diaz, And Coleman, JJ.
The opinion of the court was delivered by: Diaz, J.
DATE OF JUDGMENT: February 28, 1997
TRIAL JUDGE: HON. LEE J. HOWARD
COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - CONTRACT
TRIAL COURT DISPOSITION: JUDGMENT IN FAVOR OF THOMAS TRUCK LEASE IN BREACH OF CONTRACT ACTION
¶1. Trilogy Communications, Inc., the appellant, appeals the decision of the Circuit Court of Lowndes County denying Trilogy's motions for relief from judgment and for a stay of the proceedings to enforce judgment pursuant to Mississippi Rules of Civil Procedure 60(b) and 62(b). Trilogy asserts numerous issues in this appeal; however, the determinative issue is whether the trial court abused its discretion in denying the motions filed pursuant to Rule 60. We find that Trilogy has failed to prove that the circuit court Judge abused his discretion in denying the motions. Therefore, we affirm the ruling of the circuit court.
¶2. This is the second appeal between Trilogy Communications, Inc., a Delaware Corporation with its principal place of business in Rankin County, Mississippi, and Thomas Truck Lease, Inc., an Alabama corporation with its principal place of business in Lowndes County, Mississippi. Thomas and Trilogy entered into a contract wherein Thomas agreed to supply custom ordered tractor trailer units, fuel, maintenance, permits, and other incidentals to Trilogy. Both parties agreed that if Trilogy breached the lease agreement, it would have to purchase the equipment under the buy-out provision of the lease. Thereafter, Trilogy breached the lease agreement by non-payment, so Thomas sued to recover the amount due under the lease for past performance and to enforce the buy-out provision of the lease since the equipment was custom ordered for Trilogy. The jury awarded actual damages according to the terms of the lease, and the circuit court awarded attorney's fees based on the express terms of the lease.
¶3. After this Court's first ruling and on remand to the trial court where the circuit court was ordered to explain its rationale for the award of attorney's fees, Thomas claimed that Trilogy attempted to expand the scope of review and to relitigate under Mississippi Rules of Civil Procedure 60 and 62 the jury's award of damages. In June of 1996, this Court entered a mandate that did not include an award of interest or the statutory penalty. Pursuant to a motion by Thomas, this Court awarded interest at 8% per annum from the date of the final judgment but denied the request for the 15% statutory penalty. Thereafter, a final undisputed order certifying attorney's fees was entered before this Court. The circuit court then had jurisdiction to provide the rationale for the award of attorney's fees.
¶4. At this point, Trilogy filed a motion for relief from judgment pursuant to M.R.C.P. 60(b) and for a stay of the proceedings to enforce judgment pursuant to M.R.C.P. 62(b). Trilogy's main argument states that Thomas had generated proceeds from third parties based upon the use, sale, or lease of the tractors and trailers after the entry of the final judgment, and that to allow Thomas to recover the final judgment would be a penalty against Trilogy. In November 1996, the circuit court ordered Thomas to give Trilogy records on an expedited basis so that Trilogy could provide the court with an analysis of the credit it was due for the use, sale, or lease by Thomas of the equipment. In December 1996, this Court affirmed the award of attorney's fees. Thomas filed a motion for entry of an order requiring payment of the August 1992 judgment in December 1996. In January 1997, Thomas filed a motion for reconsideration of the circuit court's order requiring production of the documents regarding lease proceeds. A hearing was set for February 1997. In late January 1997, the circuit court, sua sponte, entered an order requiring Trilogy and Thomas to show cause why an expert should not be appointed to determine the amount of credit that should be applied to the judgment. A hearing was set for the matter also in February 1997. One day before the scheduled hearings, Thomas withdrew its motion for the entry of an order requiring payment. At the hearing, a bench order was entered reversing an earlier decision to require Thomas to submit documents concerning the leases. Additionally, the court reserved the right to appoint an expert to determine the credits due to Trilogy. Arguments were heard on Trilogy's motions under M.R.C.P. 60 and 62, and the trial court denied those motions. Furthermore, the circuit court granted a judgment to Thomas against Trilogy for $1,693,831.12 plus interest and attorney's fees. The judgment did not consider the credit due by Thomas. Feeling aggrieved Trilogy perfected this appeal on the Rule 60(b) motions.
¶5. Although Trilogy lists several assignments of error, the crux of this appeal is whether the circuit court abused its discretion in denying Trilogy's Rule 60(b) motion. Trilogy's appeal of the circuit court's denial of its motion for relief under Rule 60(b) is limited to a review of whether the circuit court abused its discretion; it not an appeal on the merits. Overby v. Murray, 569 So. 2d 303, 305 (Miss. 1990). A decision regarding a Rule 60(b) motion will not be disturbed unless it is shown the trial court abused its discretion. ...