February 18, 2014
JAMES LOFTIN, APPELLANT
JEFFERSON DAVIS COUNTY SCHOOL DISTRICT, APPELLEE
COURT FROM WHICH APPEALED: JEFFERSON DAVIS COUNTY CHANCERY COURT. DATE OF JUDGMENT: 06/19/2012. TRIAL JUDGE: HON. JOE DALE WALKER. TRIAL COURT DENIED MOTION FOR RECONSIDERATION.
FOR APPELLANT: ROBERT M. LOGAN JR., BRIAN DOUGLAS MAYO.
FOR APPELLEE: NATHANIEL ALANDAS ARMISTAD, JOHN SIMEON HOOKS.
BEFORE GRIFFIS, P.J., ROBERTS AND FAIR, JJ. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, MAXWELL AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J.
NATURE OF THE CASE: CIVIL - OTHER
¶1. Dr. James Loftin filed a petition in the Chancery Court of Jefferson Davis County seeking to compel the production of public records relating to his employment with the local school district. The chancery court denied the petition. Loftin's notice of appeal was filed months later, from the denial of his motion for reconsideration. But because the motion for reconsideration was filed more than ten days after the entry of the order denying Loftin's petition, the motion must be viewed as having been brought under Mississippi Rule of Civil Procedure 60(b) for relief from judgment. Because Rule 60 motions are an extraordinary remedy and not a substitute for a timely appeal, we affirm the chancery court's denial of Loftin's motion to reconsider.
¶2. Loftin was the principal of Prentiss High School. In February 2012, during his second year, he was informed that the superintendent did not intend to renew his contract. Loftin requested a nonrenewal hearing before the Jefferson Davis County Board of Education, pursuant to the Education Employment Procedures Law (EEPL), Mississippi Code Annotated sections 37-9-101 through -113 (Rev. 2013). Loftin also submitted a public records request to the school district for certain documents relating to his employment. The district took the position that it would provide only the documents Loftin was entitled to under the EEPL, in the time frame specified by that law. Numerous documents were eventually provided to
Loftin, though there is a dispute as to whether they satisfied the public records request.
¶3. On April 16, 2012, Loftin filed a " Petition to Compel Production of Public Records and to Enjoin Nonrenewal Hearing" in the Chancery Court of Jefferson Davis County. Notwithstanding Loftin's petition seeking to delay the hearing, the nonrenewal hearing was held on April 27, and the Board voted not to renew his contract. On July 12, the chancery court entered an order finding that Loftin " waived his right to request enforcement of his public records request" because he " allowed the non-renewal hearing . . . to proceed and participated therein." Loftin filed a motion for reconsideration on July 24. The motion was denied October 24 and the notice of appeal followed on November 2.
¶4. " A timely-filed notice of appeal is a jurisdictional prerequisite to invoking [appellate] review, and we review jurisdictional matters de novo." Calvert v. Griggs, 992 So.2d 627, 631 (¶ 9) (Miss. 2008). " [T]he time to file a notice of appeal is a jurisdictional issue that cannot be waived by the parties." Dawson v. Burt Steel Inc., 986 So.2d 1051, 1052 (¶ 5) (Miss. Ct. App. 2008).
¶5. At issue is what effect Loftin's motion for reconsideration had on the timeliness of his notice of appeal. Motions for reconsideration are filed every day in Mississippi, but the Mississippi Rules of Civil Procedure do not specifically provide for them. McBride v. McBride, 110 So.3d 356, 359 (¶ 15) (Miss. Ct. App. 2013). This Court recently summarized how they should be treated:
The Mississippi Rules of Civil Procedure provide two avenues to move the trial court to reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to alter or amend under Rule 59 or (2) file for a relief from a final judgment under Rule 60(b). The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b) motion.
A motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion. Consequently, a notice of appeal following the denial of a Rule 59 motion to reconsider encompasses both the denial of reconsideration and the underlying judgment.
But a motion to reconsider filed more than ten days after the entry of the judgment falls under Rule 60(b). And a Rule 60(b) motion does not toll the thirty-day time period to file a notice of appeal. So a notice of appeal following the denial of a Rule 60(b) motion to reconsider limits this court's review to whether reconsideration was properly denied under Rule 60(b). This court has no jurisdiction to consider the merits of the underlying judgment.
Woods v. Victory Mktg. LLC, 111 So.3d 1234, 1236-37 (¶ ¶ 6-8) (Miss. Ct. App. 2013) (citations omitted). The last day for Loftin to file his motion for reconsideration under Rule 59 was Monday, July 23, 2012. See M.R.C.P. 6(a). Loftin's motion, filed on July 24, must be taken under Rule 60(b).
¶6. Rule 60(b) provides six bases for relieving a party from a final judgment:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(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.
Loftin's motion for reconsideration makes none of those arguments. Instead, it simply contends that the petition should not have been dismissed under the facts and the controlling substantive law. Loftin obviously intended the motion to be considered under Rule 59(e), but because it was untimely, that ship has sailed. " An appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review." Bruce v. Bruce, 587 So.2d 898, 903-04 (Miss. 1991). Instead, " Rule 60(b) is for extraordinary circumstances, for matters collateral to the merits, and affords a much narrower range of relief than Rule 59(e)." Id. at 903. " Rule 60(b) motions should not be used to relitigate cases." S. Healthcare Servs. Inc. v. Lloyd's of London, 110 So.3d 735, 742 (¶ 16) (Miss. 2013). Nor is a Rule 60(b) motion a substitute for a timely appeal. Id. at (¶ 14).
¶7. Loftin is not entitled to relief from judgment under Rule 60(b). We therefore affirm the trial court's judgment denying Loftin's motion for reconsideration.
¶8. THE JUDGMENT OF THE CHANCERY COURT OF JEFFERSON DAVIS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, MAXWELL AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J.
CARLTON, J., DISSENTING:
¶9. I respectfully dissent from the majority's decision to affirm the chancellor's denial of Loftin's motion to reconsider.
¶10. The chancellor abused his discretion by erroneously finding that Loftin waived his public records request by allowing his nonrenewal hearing to proceed. The record reflects that confusion arose in this case between a discovery response and a response to a public records request. Relevant to our review, the record reflects that the denial of Loftin's public records request was not consolidated on appeal with the issues related to his nonrenewal of employment, and therefore, this dissent addresses only the chancellor's denial of the motion to reconsider relative to the denial of Loftin's public records request. The record is also ambiguous as to whether the school district actually in fact complied with Loftin's request for specific public records. The chancellor provided that the parties engaged in " informal communication" without specifying if the requested public records were indeed disclosed during those " informal communications," after acknowledging the school district's receipt of Loftin's public records request. See Victor W. Carmody, Kevin T. Stewart & Lance O. Mixon, Mississippi DUI Law and Practice § 15:5, at 494 (2012). The record reflects that Loftin filed a " Petition to Compel Production of Public Records and to Enjoin Nonrenewal Hearing" in response to the superintendent's decision not to renew Loftin's contract. In paragraph four of the petition, Loftin averred that he retained counsel who requested access to certain public records of the Jefferson Davis School District, including the following public records: (1) Loftin's personnel file; (2) all correspondence, notes,
and memoranda to and from the superintendent pertaining to Loftin, whether on paper or in electronic format; (3) any and all evaluations of Loftin; (4) any and all plans or letters of improvement from the superintendent to Loftin; and (5) all communications from the superintendent to the board of trustees or from any Board member to the superintendent or any other school administrator pertaining to Loftin.
¶11. Loftin's petition also alleged that the school district responded that it had produced Loftin's personnel file and that, within fourteen days of the nonrenewal hearing, the school district would be forwarding copies of all information that it intended to present at the hearing. As evidence of this communication from the school district, Loftin attached a letter from the school district as Exhibit B to the petition. The school district's response failed to address the itemized list of documents that Loftin requested pursuant to Mississippi's public records law. The school district's response instead appears to address its disclosure of discovery information relative to the nonrenewal hearing. The school district's response addressed the evidence and information that the school district intended to present at that nonrenewal hearing. The public records access request is not a request for discovery for an adversarial proceeding, but rather constitutes a distinct and separate request authorized by specific statutes applicable to public records. A public records request allows for the request of public documents not relevant to discovery, or for public documents different or broader than the scope of such discovery. See Miss. Att'y Gen. Op., 2004-0039, 2004 WL 555120, Ringer (Feb. 13, 2004); see also 1 Jeffrey Jackson and Mary Miller, Encyclopedia of Mississippi Law § 2:57, at 80 (2001). As acknowledged in Mississippi DUI Law & Practice, when preparing for trial or investigating a case, the open records act is another means of obtaining critical information. See Carmody, § 15:5, at 494; see also Miss. Code Ann. § 25-61-2; Harrison Cnty. Dev. Comm'n v. Kinney, 920 So.2d 497, 502-03 (¶ ¶ 10-11) (Miss. Ct. App. 2006); Miss. Att'y Gen. Op., 98-0250, 1998 WL 304414, Chamberlin (May 1, 1998).
¶12. The school district's response indicates its disclosure of Loftin's personnel record. However, the disclosure lacked any itemization of what documents were contained in that disclosed file and whether these documents satisfied the specified documents requested pursuant to Loftin's public records request. We are therefore left without an answer as to whether the school district complied with Loftin's request for the specified public records or whether Loftin's request was denied in whole or part due to an exemption or nonexistence of the records. The school district's response to Loftin's request argued that Loftin's request for public records should have been denied because he was attempting to use the Public Records Act as a means of civil discovery. However, public records are considered to be public property and open for inspection unless an exemption or privilege applies, in accordance with Mississippi Code Annotated section 25-61-5 (Rev. 2010). Neither
a pending adverse administrative proceeding nor a criminal proceeding bars a public records request under Mississippi's statutory law. See Bd. of Trs. of State Insts. of Higher Learning v. Van Slyke, 510 So.2d 490, 492 (Miss. 1987). Moreover, neither a respondent in an administrative hearing, nor a defendant in a criminal prosecution, is prohibited from submitting a public records request that seeks access to documents not subject to discovery in the administrative adversarial matter or prosecution. See Scruggs v. Bd. of Supervisors Alcorn Cnty. Comm'rs, 85 So.3d 325, 327-29 (¶ ¶ 9-11) (Miss. Ct. App. 2012); Miss. Att'y Gen. Op., 2004-0039, 2004 WL 555120, Ringer (Feb. 13, 2004).
¶13. Relevant to resolution of the issue before us on appeal, the Mississippi public records law indeed requires a written response from the relevant agency, and section 25-61-5 specifies that even a denial of a public records request must be in writing. See Miss. Code Ann. § 25-61-2 (Rev. 2010) (duty on government agency to make public records available). The statute further explains that in a written denial, the public body shall provide a statement of the specific exemption relied upon by the public body for the denial. Section 25-61-5 also sets forth the time period within which a public entity must comply with a public records request. Loftin received no such response in this case from the school district.
¶14. Based upon the foregoing, I dissent and would remand this case, since the school district failed to respond in writing, as required by statute, to Loftin's public records request as to whether the specified documents requested were disclosed, or were denied pursuant to an applicable exemption. The chancellor's order on this matter similarly fails to reflect whether the disclosure of the personnel file satisfied Loftin's public records request. The chancellor's order provides that " [the school district], after receiving the public records request, did not make a formal reply to the request; however, there was communication between the parties regarding the documents to be produced." While acknowledging no formal reply by the school district existed, the chancellor provided no finding as to whether the school district produced the specific documents requested by Loftin's public records request or whether he found that an exemption applied.
¶15. I further submit that the chancellor erred in finding that Loftin waived his right to request enforcement of his public records request since he allowed the nonrenewal hearing to proceed. As previously acknowledged, a public records request is distinct from discovery, or a request for discovery information. No legal basis exists to find that the conclusion of the adversarial administrative hearing herein served as a waiver of Loftin's public records request, or of the school district's obligation to respond in writing, pursuant to section 25-61-5. As an appellate court, we are not fact-finders, and thus we are without means to determine whether the school district's disclosure of Loftin's personnel file satisfied his public records request. I therefore submit that remand is necessary to determine if the school district complied with Loftin's public records request; only then can we determine whether or not the chancellor abused his discretion in denying Loftin's motion to reconsider the denial of Loftin's motion to
compel production of public records.
IRVING, P.J., JOINS THIS OPINION.