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Brackin v. Burton

February 23, 1999

BILL BRACKIN D/B/A BRACKIN AUTO SALES APPELLANT
v.
GENERAL L. BURTON AND EDWARD NORRIS APPELLEES



Before Bridges, C.j., Payne, And Southwick, JJ.

The opinion of the court was delivered by: Bridges, C.j.

DATE OF JUDGMENT: 08/21/1997 TRIAL JUDGE: HON. ELZY JONATHAN SMITH COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE

TRIAL COURT DISPOSITION: DENIED BRACKIN'S RULE 60(B) MOTION FOR RELIEF FROM SUMMARY JUDGMENT IN FAVOR OF BURTON AND NORRIS

DISPOSITION: AFFIRMED - 2/23/99

¶1. Bill Brackin d/b/a Brackin Auto Sales appeals the order of the Circuit Court of Bolivar County affirming the county court's denial of his motion for relief from the summary judgment entered against him in favor of General L. Burton and Edward Norris. Brackin contends relief was mandatory under M.R.C.P. 60(b)(4) inasmuch as the summary judgment was void. We hold that Brackin's attempt to attack collaterally the final judgment rendered by the county court by way of a Rule 60(b)(4) motion is not well taken and accordingly affirm the circuit court's order affirming the county court's denial of Brackin's Rule 60(b) motion.

PROCEDURAL HISTORY

¶2. In January 1992, General L Burton of Boyle purchased for Edward Norris a 1989 Nissan Sentra from Bill Brackin, the owner of Brackin Auto Sales in Cleveland, for $5,500. On November 9, 1993, Burton and Norris filed a cause of action against Brackin for breach of warranty of title alleging Brackin did not have title to the 1989 Nissan Sentra, or, in the alternative, a discrepancy in the vehicle identification number on the necessary documents submitted to the State Tax Commission to transfer title to the car created a significant cloud over Brackin's ownership in the 1989 Nissan Sentra to constitute a breach of warranty of title.

¶3. Answering the complaint on December 9, 1993, Brackin stated the error in the vehicle identification number on the application for certificate of title and odometer disclosure statement was a correctable typographical error which did not constitute a defect in the title to the vehicle. As an affirmative defense, Brackin attached a certified copy of the Texas certificate of title for the 1989 Nissan Sentra, VIN 1N4GB21S3KC787523 showing the original title had been issued August 28, 1989 to Agency Rent- A-Car, Inc. from Buckeye Nissan, Inc., and that no liens existed on the car. The copy was certified on September 16, 1993. The reverse side of the title certificate showed the following assignment and reassignments:

1. Assignment of title from Agency Rent-A-Car, Inc. to Weaver Auto Sales on October 21, 1991;

2. First Reassignment Dealer Only from Weaver Auto Sales to North Central Enterprises, Inc. on October 23, 1991;

3. Second Reassignment Dealer Only from North Central Enterprises to Brackin Auto Sales on October 28, 1991;

4. Third Reassignment Dealer Only from Brackin Auto

Sales to General L. Burton on January 3, 1992. Thus, Brackin was the owner of record of the 1989 Nissan Sentra at ...


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