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Palmer v. Grand Casinos of Mississippi Inc.6/10/1999
DATE OF JUDGMENT: 04/03/1998
TRIAL JUDGE: HON. JOHN H. WHITFIELD
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 6/10/1999
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
STATEMENT OF THE FACTS
. This entire appeal centers around the problems of the Palmers' attorney, Neal Labovitz. According to Rose C. Ellen, M.D., Labovitz experienced chronic bilateral kidney problems which required him to take large doses of Demerol and Darvocet. These drugs caused him to experience short-term memory loss. Labovitz also entered a weight loss program, which compounded his short-term memory loss problems. Medical literature revealed this weight loss program caused short-term memory loss and heart complications. In addition, Labovitz has suffered from chronic back pain which made his routine office schedule difficult. As a result of his medical problems, Labovitz failed to answer discovery, respond to Grand Casino's notice of deposition, or appear at the hearing on Grand Casino's motion to dismiss.
I. THE TRIAL JUDGE APPLIED AN ERRONEOUS LEGAL STANDARD AND ABUSED HIS DISCRETION IN DENYING PALMER'S MOTION FOR RELIEF FROM JUDGMENT OF DISMISSAL WITH PREJUDICE PURSUANT TO RULE 60(B) OF THE MISSISSIPPI RULES OF CIVIL PROCEDURE.
. This Court is without authority to address on its merits the order of dismissal which the Palmers did not appeal. Overbey v. Murray, 569 So.2d 303, 305 (Miss. 1990); see Cunningham v. Mitchell, 549 So. 2d 955, 958 (Miss. 1989). However, we will address the Judge's decision to deny the Motion for Relief From Judgment of Dismissal under Rule 60(b).
. Rule 60(b) motions are generally addressed to the sound discretion of the trial court, and appellate review is limited to whether that discretion has been abused. Stringfellow v. Stringfellow, 451 So. 2d 219, 221 (Miss. 1984). "Rule 60(b) is not an escape hatch for litigants who had procedural opportunities afforded under other rules and who without cause failed to pursue those procedural remedies. Rule 60(b) is designed for the extraordinary, not the common place." State ex rel. Miss. Bureau of Narcotics v. One (1) Chevrolet Nova Auto., 573 So. 2d 787, 790 (Miss. 1990) (citing King v. King , 556 So. 2d 716 (Miss. 1990)). " balance must be struck between granting a litigant a hearing on the merits with the need and desire to achieve finality in litigation." Stringfellow, 451 So. 2d at 221 (citing House v. Secretary of Health and Human Services, 688 F.2d 7 (2nd Cir. 1982)).
. Mississippi Rule of Civil Procedure 60(b) provides in pertinent part:
"(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. 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 the 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 judgment. ". . . . M.R.C.P. 60(b).
. In Cunningham, this Court dealt with a similar situation. Cunningham's complaint was dismissed with prejudice, and she was sanctioned. Cunningham, 549 So.2d a
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