author: LEE, P.J., for the Court.

text:
    Deloris Jean WATSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-CA-01199-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2008.
    Rehearing Denied Feb. 3, 2009.
    Certiorari Denied May 14, 2009.
    William R. Labarre, Virginia L. Watkins, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.

      Before LEE, P.J., ROBERTS and CARLTON, JJ.
   LEE, P.J., for the Court.

PROCEDURAL HISTORY

¶ 1. Deloris Jean Watson was indicted by a grand jury in Hinds County for Count I, attempted aggravated assault on a police officer, and Count II, feloniously eluding a police officer. Watson was tried by a jury in the Hinds County Circuit Court. The jury was unable to reach a verdict on Count I, and the trial court declared a mistrial. Watson was found guilty of Count II and sentenced to serve five years in the custody of the Mississippi Department of Corrections with one year suspended and two years of supervised probation. Watson filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial, which was denied by the trial court.

¶2. Watson now appeals, asserting the following issue: the trial court erred in permitting Sergeant Todd Peterson to offer hearsay testimony from an unidentified Wal-Mart employee that Watson was shoplifting in the store, as it provided a necessary element of the crime, thus violating her Fifth, Sixth, and Fourteenth Amendment rights. Finding no error, we affirm.

FACTS

¶ 3. Watson’s friend offered her $10 for a ride to the Clinton Wal-Mart to purchase hair-care products. Watson and the friend arrived at the Wal-Mart at approximately 3:45 a.m. Peterson, a sergeant with the Clinton Police Department, testified that around that time he was performing a courtesy walk through of the store. Ricky Townsend, an officer with the Clinton Police Department, was with Peterson. Townsend also testified at the trial. A Wal-Mart manager told Peterson that Watson and a companion were possibly shoplifting. Peterson testified that Watson was wearing bulky clothes in which she could have easily concealed something. Peterson ordered Watson to stop as she left the store. Watson and her companion continued walking, and Peterson followed them into the parking lot. Peterson was dressed in his police uniform and identified himself as a police officer. Watson did not stop. She got in her car and backed out of the parking space at a high rate of speed and then proceeded to drive out of the parking lot. Peterson testified that he had to jump out of the way in order to avoid being hit by the car. Peterson attempted to follow Watson’s car in his patrol car, but he lost sight of her. He recorded her tag number and arrested her the following day. The friend was not arrested or identified.

¶ 4. According to Watson, she and her friend separated after entering the store. Watson saw her friend going through the checkout line at the front of the store, but she did not see her again until she went outside to her car where the friend was waiting. When Watson got in the car, the friend told Watson they had to leave because she had shoplifted a hair permanent. Watson testified that she had no idea that her friend intended to steal from the store, and she did not try to run over the police officers. She did, however, admit that she was driving fast due to her panicked state. Watson testified that she panicked because a Clinton police officer had already warned her about driving in Clinton with a suspended license. She saw Peterson come out of the store and heard him say “hold it,” but she quickly drove out of the parking lot and went to her friend’s home.

STANDARD OF REVIEW

¶5. “The admissibility of evidence is within the discretion of the trial court, and absent abuse of that discretion, the trial court’s decision regarding the admissibility of evidence will not be disturbed on appeal.” Moss v. State, 977 So.2d 1201, 1209(¶ 13) (Miss.Ct.App.2007). “When the trial court stays within the parameters of the Rules of Evidence, the decision to exclude or admit evidence will be afforded a high degree of deference.” Id. (citing McCoy v. State, 820 So.2d 25, 81(¶ 15) (Miss.Ct.App.2002)). If an error is made in the admission of evidence, “[s]uch error will warrant reversal only when the abuse of discretion has resulted in prejudice to the accused.” Moss, 977 So.2d at 1207(¶ 4) (quoting Harris v. State, 861 So.2d 1003, 1018(¶41) (Miss.2003)).

DISCUSSION

¶ 6. Watson argues on appeal that the trial court allowed improper hearsay evidence from Peterson regarding information given to him by a Wal-Mart employee. The employee’s name was not given in the record, and she was not called to testify.

¶7. At trial, Peterson testified that a Wal-Mart employee told him that she believed two women in the store were shoplifting, one of whom was Watson. The following exchange took place between the prosecuting attorney and Peterson:

Q: Okay. Now, tell the jury when you arrived at the Wal-Mart what happened. A: When I arrived at the Wal-Mart, myself and another officer entered the Wal-Mart. I was approached by the front[-]end manager who stated that she had observed—
BY [WATSON’S ATTORNEY]: — object to hearsay, Your Honor.
BY THE COURT: I’m going to allow the witness to answer for a limited purpose. Whatever this other person informed the officer you’re not to consider that as far as establishing the truth of the matter asserted but only to explain the reasons why the officer may have taken the actions that he took in response to that. In other words, it’s not germane as to whether or not the response was true or untrue, only why it explains what the officer did. All right. Go ahead.
Q: What did the front[-]end manager tell you?
A: She stated that she had observed two individuals in the store who she believed to have been shoplifting at the time.
Q: Okay. Was she able to point two individuals out?
A: Yes, sir, she did.

¶ 8. Mississippi Rule of Evidence 801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c). “Hearsay is not admissible except as provided by law.” M.R.E. 802. We find that Peterson’s testimony referencing the manager’s comments was not hearsay and was properly admitted. Watson was not charged with shoplifting. Therefore, the testimony complained of was not used to prove the truth of whether or not Watson shoplifted. Watson was charged with feloniously fleeing or eluding a law enforcement officer in a motor vehicle pursuant to Mississippi Code Annotated section 97-9-72(2) (Rev. 2006). The purpose of the testimony was to show why Peterson followed Watson into the parking lot where she fled from him.

¶ 9. Watson argues that Peterson’s testimony was offered to prove the truth of the matter asserted because the crime she was charged with stemmed from the officer attempting to stop her based on the accusations of a person she was not able to cross-examine. She argues that the statements of the Wal-Mart manager went to prove that Watson was shoplifting since the State was required to show beyond a reasonable doubt that the officer had “a reasonable suspicion to believe the driver in question has committed a crime.” Miss. Code Ann. § 97-9-72. Watson argues that without the manager’s statements, the officer would not have had a reasonable suspicion that a crime was committed. Again, Peterson’s testimony regarding the manager’s statement was not given for the purpose of proving that Watson committed a crime. Even if Peterson’s statement did qualify as hearsay, it would still be “admissible to the extent required to show why [he] acted as he did and [why] he was at a particular place at a particular time.” Singleton v. State, 948 So.2d 465, 470(¶ 9) (Miss.Ct.App.2007) (citing Jackson v. State, 935 So.2d 1108, 1114(¶9) (Miss.Ct.App.2006)). Therefore, we find that the trial court did not abuse its discretion in overruling Watson’s objection to Peterson’s testimony.

¶10. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF ELUDING A LAW ENFORCEMENT OFFICER AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH ONE YEAR SUSPENDED AND TWO YEARS OF SUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


source: Caselaw Access Project

author: KING, C.J., for the Court.

license: Public Domain

text:
    Frank GARRISON, Appellant v. Jimmy W. GARRISON, Appellee.
    No. 2007-CA-01417-COA.
    Court of Appeals of Mississippi.
    Jan. 14, 2009.

      Ben Logan, Tupelo, attorney for appellant.
    Robert W. Davis, Hattiesburg, attorney for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   KING, C.J., for the Court.

¶ 1. Frank Garrison appeals from the judgment of the Chancery Court of Union County, which held that title to thirty mobile homes passed to Jimmy Garrison in a sale negotiated between the brothers. Frank raises two issues on appeal: (1) whether the chancellor erred by finding that title to the mobile homes passed to Jimmy, and (2) whether the chancellor erred by failing to vest the title to the mobile homes in Frank’s sons — Chris Earl and Josh Garrison. Jimmy argues that Frank denies having an ownership interest in the mobile homes in controversy and, thus, lacks standing to appeal the chancellor’s decision. Jimmy has filed a motion requesting this Court to dismiss Frank’s appeal. We find that Frank lacks standing to appeal the chancellor’s judgment and, therefore, grant the motion to dismiss this appeal.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 23, 2006, Frank agreed to sell Twin Creeks, a mobile home park, to his brother Jimmy for $800,000. Maxium, a company which Frank created using the names of his aunt, Mary Anderson, and his mother, Ann Starling, was listed as the owner of the real property. Anderson testified that Frank instructed her to sign a warranty deed and to prepare bills of sale for thirty mobile homes, transferring the property to Jimmy.

¶ 3. Maxium also financed the purchase for Jimmy. The deed of trust gave Maxi-um a security interest in the real property and all buildings and structures located on the property, which included the mobile homes. Anderson testified that she did not profit from the sale of Twin Creeks and the mobile homes. Later, on September 8, 2006, Anderson, on behalf of Maxi-um, transferred the deed of trust to Eagle Horn, one of Frank’s many business names.

¶ 4. After the sale was complete, Jimmy went to the tax assessor’s office to register the thirty mobile homes. The tax assessor informed Jimmy that only eight of the mobile homes had been previously registered with the office. However, the tax assessor recorded the other twenty-two mobile homes and allowed Jimmy to pay the taxes owed on all of the mobile homes.

¶ 5. As owner of the mobile home park, Jimmy collected ground rent from the tenants who owned their own mobile homes and collected rent from those tenants who were renting one of his thirty mobile homes. Jimmy used the rents collected to make his monthly payment of $11,309.34 on the loan that he obtained from Maxium.

¶ 6. Jimmy later negotiated to sell Twin Creeks and the thirty mobile homes to William and Vanessa Taylor for $1,225,000. Jimmy requested a payoff amount for the loan from Maxium and Eagle Horn. Frank provided Jimmy with a payoff amount. However, Frank informed Jimmy that the May 2006 transaction did not include the thirty mobile homes and threatened to sue if Jimmy attempted to sell the mobile homes to the Taylors.

¶ 7. On January 16, 2007, Jimmy filed a lawsuit against Frank for tortuous interference with a contract. Jimmy also requested that the chancellor grant a preliminary injunction, a temporary restraining order, and a declaratory judgment against Frank. The chancellor granted Jimmy’s request for a preliminary mandatory injunction against Frank, which enjoined Frank from interfering with the sale of Twin Creeks and the mobile homes. However, on March 15, 2007, Sandra Brown, Frank’s ex-wife, and Chris Earl and Josh, Frank’s adult sons, intervened in the lawsuit, claiming that they possessed an interest in the mobile homes.

¶ 8. Frank testified that the mobile homes never belonged to Anderson. Instead, he claimed that the mobile homes were titled in either his name or Sandra’s name. Frank and Sandra’s divorce records were admitted into evidence and showed that neither Frank nor Sandra listed Twin Creeks or the mobile homes as assets. Frank admitted that he transferred his interest in Twin Creeks to Anderson to hide his assets from Sandra during the divorce. He also testified that he transferred his interest in the mobile homes to his sons right before the divorce. Sandra testified that she was unaware that she owned any of the mobile homes until this lawsuit was filed.

¶ 9. Several witnesses testified on behalf of Jimmy. Anderson testified that she allowed Frank to use her name in his business dealings, on the condition that she would not get into any legal trouble. Anderson was not aware that she was listed as the owner of Twin Creeks until Frank told her. Anderson testified that Frank directed her to sign a warranty deed and the bills of sale for thirty mobile homes located in Twin Creeks. Cathy Cunningham, Jimmy’s office manager, testified that Frank instructed her to help prepare the bills of sale for the mobile homes. Cunningham testified that Frank provided her with a list of the serial numbers, makes, and models of the mobile homes to be sold. David Tutor testified that he previously attempted to purchase Twin Creeks and the mobile homes from Frank. Tutor testified that Frank offered to let him purchase Twin Creeks and the mobile homes for $800,000. However, the deal did not go through because Tutor was unwilling to pay Frank’s asking price.

¶ 10. On July 6, 2007, the chancellor found that Frank attempted to hide his ownership of Twin Creeks and the mobile homes. However, the chancellor did not find any evidence that Frank actually transferred his interest in the mobile homes to his sons. The chancellor found that Frank negotiated a sale with Jimmy and that title to Twin Creeks and the mobile homes passed to Jimmy in this transaction. Thus, the chancellor granted Jimmy’s request for a permanent mandatory injunction and ordered Frank to provide Jimmy with an unqualified payoff figure for Twin Creeks and the mobile homes.

¶ 11. Frank, Sandra, Chris Earl, and Josh filed a motion to reconsider, which the chancellor denied. Thereafter, Frank timely filed a notice of appeal. However, Sandra, Chris Earl, and Josh did not appeal the chancellor’s ruling.

ANALYSIS

¶ 12. Whether a party has standing to appeal a trial court’s judgment is a question of law, which is reviewed de novo. DeSoto Times Today v. Memphis Publ’g Co., 991 So.2d 609, 611(116) (Miss.2008) (citations omitted).

¶ 13. “[Sjtanding is a ‘jurisdictional issue which may be raised by any party or the Court at any time.’ ” Id. (quoting City of Madison v. Bryan, 763 So.2d 162, 166(¶ 20) (Miss.2000)). Under Mississippi law, a party has standing “to sue or intervene when they assert a color-able interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, or as otherwise authorized by law.” Id. at 612(¶8) (quoting Fordice v. Bryan, 651 So.2d 998, 1003 (Miss.1995)).

¶ 14. On appeal, Frank does not claim an ownership interest in the mobile homes. Frank simply maintains that Anderson did not have title to the mobile homes; therefore, she could not convey the mobile homes to Jimmy. He also argues that the chancellor erred by failing to vest title of the mobile homes in his sons-Chris Earl and Josh. In his request for relief, Frank asks this Court “to reverse the [cjhancellor’s decision and award ownership of the units to his sons ..., the holders of [the] bill of sales.... ” It is important to note that neither Chris Earl nor Josh have joined Frank in this appeal.

¶ 15. Frank does not claim an ownership interest in the mobile homes. Frank has failed to assert an interest in the subject matter of this litigation and has failed to show this Court how he has experienced an adverse effect from the chancellor’s judgment. Therefore, we find that Frank lacks standing to raise these issues on appeal. In the absence of standing to raise these issues on appeal, there is no justifiable matter before this Court for resolution. Thus, we grant the motion to dismiss this appeal.

¶ 16. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


author: ISHEE, J., for the Court.

text:
    Carl Lee JOHNSON a/k/a Carl Lee Griffin, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-00204-COA.
    Court of Appeals of Mississippi.
    Feb. 24, 2009.
    Carl Lee Johnson, pro se.

      Office of the Attorney General, by Deirdre McCrory, attorney for appellee.
   ISHEE, J., for the Court.

¶ 1. Carl Lee Johnson appeals the Coa-homa County Circuit Court’s order denying his petition for writ of habeas corpus for post-conviction relief. This Court finds that Johnson’s claims are not properly before it, and his appeal must, therefore, be dismissed.

FACTS

¶ 2. Johnson was convicted in May 1995 in the Coahoma County Circuit Court on a charge of aggravated assault of a police officer. He was sentenced by a jury as a habitual offender to a term of life imprisonment in the custody of the Mississippi Department of Corrections without eligibility for parole. His conviction and sentence were affirmed by this Court on appeal, and his petition for writ of certiorari was denied by the Mississippi Supreme Court.

¶ 3. Johnson filed three previous applications for leave from the supreme court to seek post-conviction relief that were denied in February, March, and May 2000. He also filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Mississippi that was denied in October 2000. Six years later, he filed the present petition for writ of habeas corpus for post-conviction relief in the circuit court in December 2006, and it was summarily denied because it was time-barred. Johnson filed a timely appeal which is now before this Court.

STANDARD OF REVIEW

¶ 4. This Court will not reverse a trial court’s denial of a motion for post-conviction relief unless we find the decision to be clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶3) (Miss.Ct.App.2002). However, when reviewing questions of law, the applicable standard of review is de novo. Hoskins v. State, 934 So.2d 326, 328(¶ 4) (Miss.Ct.App.2006).

DISCUSSION

Whether the circuit court had jurisdiction to review Johnson’s petition.

¶ 5. Before we begin reviewing the issues raised by Johnson on appeal, we must first determine whether the circuit court had jurisdiction to review his petition for writ of habeas corpus. Mississippi Code Annotated section 99-39-7 (Rev.2007) clearly states:

Where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion [for post-conviction relief] shall not be filed in the trial court until the motion shall have first been presented to a quorum of the justices of the supreme court of Mississippi, convened for said purpose either in term-time or in vacation, and an order granted allowing the filing of such motion in the trial court.

Johnson asserts that his petition was not subject to the statutory mandate because he did not file it pursuant to the Mississippi Uniform Post-Conviction Relief Act at Mississippi Code Annotated sections 99-39-1 to 99-39-27 (Rev.2007). Instead, he argues that he filed his petition under Rule 8.01 of the Uniform Criminal Rules of Circuit Court, which was in effect at the time of his conviction. However, his argument is without merit because Mississippi Code Annotated section 99-39-3 (Rev. 2007) “abolishe[d] the common law writs relat[ed] to post-conviction collateral relief,” and the writ of habeas corpus was included among those repealed. Therefore, the petition that Johnson filed in the Coahoma County Circuit Court for a writ of habeas corpus must be treated as a motion for post-conviction relief. See Jackson v. State, 915 So.2d 484, 485(¶ 4) (Miss.Ct.App.2005).

¶ 6. This Court has consistently held that if a conviction and sentence were affirmed on appeal, the statutory requirement to receive permission from the supreme court before seeking post-conviction relief at the trial court is “not merely advisory, but jurisdictional.” Doss v. State, 757 So.2d 1016, 1017(¶ 6) (Miss.Ct. App.2000). Johnson filed several applications seeking leave from the supreme court in 2000, all of which were denied, and he did not seek leave before filing this petition. Because he did not have the supreme court’s permission to file a motion for post-conviction relief with the Coahoma County Circuit Court, the circuit court lacked jurisdiction to entertain Johnson’s motion. See Craft v. State, 966 So.2d 856, 857(¶ 7) (Miss.Ct.App.2007). Similarly, this Court is also without jurisdiction to review Johnson’s appeal.

¶7. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES AND CARLTON, JJ., CONCUR. ROBERTS, J., CONCURS IN RESULT ONLY.


author: ROBERTS, J., for the Court.

text:
    Kathy CAMPBELL, Appellant, v. Jeremy E. DAVIS, Appellee.
    No. 2007-CA-01627-COA.
    Court of Appeals of Mississippi.
    March 8, 2009.
    John P. Fox, Houston, Elizabeth Fox Ausbern, attorneys for appellant.
    Eric Joseph Dillon, Jackson, attorney for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   SUMMARY OF THE CASE

ROBERTS, J., for the Court.

¶ 1. This appeal is the result of an automobile collision. The car that Jeremy Davis was driving rear-ended Kathy Campbell’s car, and Campbell sued Jeremy’s grandmother, Dorothy Davis, in her capacity as Jeremy’s guardian. Jeremy was driving Dorothy’s car when he hit Campbell. Dorothy successfully moved for summary judgment because Campbell did not raise any allegations specifically against Dorothy, and Dorothy was not Jeremy’s guardian. However, the Chickasaw County Circuit Court allowed Campbell to file an amended complaint joining Jeremy as a defendant. Campbell did not file her amended complaint until after the statute of limitations had expired, so Jeremy moved to dismiss Campbell’s suit. The circuit court found that Campbell’s amended complaint did not relate back to Campbell’s original complaint due to a lack of mistake in the parties. Aggrieved, Campbell appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 13, 2000, Jeremy borrowed a car that belonged to his grandmother, Dorothy. According to an accident report, Jeremy rear-ended Campbell’s car. Jeremy was seventeen years old at the time, but his eighteenth birthday was the very next day.

¶ 3. On May 30, 2001, Campbell filed a complaint in the Chickasaw County Circuit Court. Campbell claimed that Jeremy was negligent when he struck her car. Campbell sued Dorothy in Dorothy’s capacity as Jeremy’s guardian. Campbell did not claim that Dorothy was negligent or that she negligently entrusted Jeremy with her car. Dorothy responded and denied that she was Jeremy’s guardian.

¶ 4. Approximately twenty months later, Dorothy filed a motion for summary judgment. Dorothy admitted that she allowed both Jeremy and his mother, Myra Jabri, to live with her in her house at the time of the collision. However, Dorothy added that she was not Jeremy’s guardian at that time. Finally, Dorothy stated that Campbell “alleged no claims against [her] ... other than alleging incorrectly that she was” Jeremy’s guardian.

¶ 5. On March 7, 2003, Judge Henry Lackey heard Dorothy’s motion for summary judgment. At the conclusion of that hearing, Judge Lackey granted Dorothy’s motion, held that Dorothy should be dismissed, and further held that Campbell should be allowed to join Jeremy as a necessary party to the lawsuit. Judge Lackey announced that Campbell had thirty days to file an amended complaint in which she could name Jeremy as a defendant. Finally, Judge Lackey also stated that Campbell was obligated to serve Jeremy with process.

¶ 6. Campbell did not file an amended complaint within thirty days from the date of the hearing on Dorothy’s motion for summary judgment. Approximately forty-five days after the hearing, Campbell’s attorney forwarded a draft order to Dorothy’s attorney. That draft order addressed Judge Lackey’s decision to allow Campbell to amend her complaint, but it did not address Judge Lackey’s decision to dismiss Dorothy as a defendant.

¶ 7. Dorothy’s attorney sent Campbell’s attorney a draft of a final judgment of dismissal and a draft order allowing Campbell to amend her complaint. According to Dorothy’s attorney, she did not get a response from Campbell’s attorney, so she sent Campbell’s attorney a letter on June 27, 2003, and asked that Campbell’s attorney contact her.

¶ 8. Campbell’s attorney apparently left telephone messages for Dorothy’s attorney during the week of July 7, 2008. Dorothy’s attorney did not return those calls before July 14, 2008. On that date, the circuit court judge signed Campbell’s original draft order, although neither Jeremy’s attorney nor Campbell’s attorney signed the order before the circuit court judge executed it. That order was filed on July 16, 2003.

¶ 9. On August 8, 2003, Campbell filed her amended complaint. Campbell named Jeremy as a defendant. Jeremy filed his answer less than a month later. Among other defenses, Jeremy argued that Campbell’s claim was barred by the statute of limitations.

¶ 10. Four months later, Jeremy filed a motion to dismiss. Jeremy noted that during the March 7, 2003, hearing on Dorothy’s motion to dismiss, the circuit court gave Campbell thirty days to file an amended complaint. Jeremy further noted that Campbell filed her amended complaint on August 8, 2003. According to Jeremy, Campbell filed her amended complaint twenty-six days after the statute of limitations had expired. Jeremy reasoned that the circuit court should dismiss Campbell’s amended complaint with prejudice.

¶ 11. On February 11, 2005, Judge William Coleman heard Jeremy’s motion to dismiss. Campbell’s attorney did not attend that hearing. Ultimately, Judge Coleman found merit to Jeremy’s position and held that the statute of limitations ran before Campbell amended her complaint. Judge Coleman then entered a final judgment dismissing Campbell’s claims against Jeremy.

¶ 12. Campbell later moved to set aside Judge Coleman’s order. After taking the matter under advisement, Judge Lackey denied Campbell’s motion.

STANDARD OF REVIEW

¶ 13. The Mississippi Supreme Court has recently stated the appropriate standard of review as follows:

A motion to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure raises an issue of law, which is reviewed under a de novo standard. Cook v. Brown, 909 So.2d 1075, 1077-78 (Miss.2005). A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint. Id. at 1078 (citing Little v. Miss. Dep’t of Human Servs., 835 So.2d 9, 11 (Miss.2002)). The allegations in the complaint must be taken as true, and there must be no set of facts that would allow the plaintiff to prevail. Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, 893 (Miss.2006). This Court need “not defer to the trial court’s ruling.” Id. (citing Roberts v. New Albany Separate Sch. Dist., 813 So.2d 729, 730-31 (Miss.2002)). This Court must find that there is no set of facts that would entitle a defendant to relief under the law in order to affirm an order granting the dismissal of a claim on a Rule 12(b)(6) motion. Id. (citing Lowe v. Lowndes County Bldg. Inspection Dep’t, 760 So.2d 711, 713 (Miss.2000)).

Rose v. Tullos, 994 So.2d 734, 737(¶ 11) (Miss.2008).

WHETHER THE AMENDED COMPLAINT RELATED BACK TO THE ORIGINAL COMPLAINT.

¶ 14. Campbell argues that the circuit court erred when it dismissed her amended complaint because her amended complaint related back to her original complaint. Mississippi Rule of Civil Procedure 15(c) states:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by Rule 4(h) for service of the summons and complaint, the party to be brought in by amendment:
(1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining the party’s defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. An amendment pursuant to Rule 9(h) is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date of the original pleading.

It is undisputed that Campbell’s amended complaint arose from the same “conduct, transaction, or occurrence” as the original complaint. However, the remaining elements of Rule 15(c) require that Campbell “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.”

¶ 15. There was no mistake concerning Jeremy’s identity. As Jeremy’s attorneys note, numerous pleadings and other documents either directly or indirectly indicate Campbell’s awareness of Jeremy’s identity. For example, the accident report indicates that Jeremy was the driver. Additionally, Campbell’s initial complaint contained an allegation that Jeremy drove the car that collided with Campbell’s car. Nothing within the record creates an issue of fact as to whether Jeremy drove the car that collided with Campbell’s car.

¶ 16. Because there was no mistake in the identity of the proper party, Campbell’s amended complaint does not relate back to Campbell’s original complaint. Accordingly, the circuit court correctly held that Campbell’s amended complaint was barred by the statute of limitations. It follows that we find no merit to this issue.

¶ 17. THE JUDGMENT OF THE CHICKASAW COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.

      . According to Jeremy’s motion to dismiss, his attorney was not aware that the circuit court entered an agreed order until August 8, 2003, when Campbell's attorney sent Jeremy's attorney a letter stating that the circuit court had entered the order.

      . At the same time, Dorothy filed a second motion for summary judgment.


author: CARLTON, J., for the Court.

text:
    Howard GOBER, Appellant v. Jack R. LEE and Arthur Johnston, in his Capacity as Chancery Clerk of Madison County, Mississippi, Appellees.
    No. 2007-CP-01214-COA.
    Court of Appeals of Mississippi.
    March 17, 2009.

      Howard Gober, Appellant, pro se.
    John Mark Franklin, Edmund L. Bruni-ni, John Alexander Brunini, Jackson, Lara E. Gill, Brian Craig Kimball, Jackson, attorneys for appellees.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J., for the Court.

¶ 1. The tax collector of Madison County sold property owned by Jack Lee at a tax sale because Lee had failed to pay the assessed taxes due on his property. Then, Howard Gober bought Lee’s property from the tax sale. The chancellor later voided the tax sale of Lee’s property on August 26, 2006, because the chancellor found that the former Madison County Chancery Clerk had failed to provide proper notice of the tax sale to Lee pursuant to Mississippi Code Annotated sections 27-43-1 (Rev.2006) and 27-43-3 (Supp. 2008). Mistakenly, the chancery clerk filed a second final judgment voiding the tax sale approximately five months later on February 2, 2007. On February 13, 2007, Gober filed a motion for a new trial. Gob-er also subsequently filed a motion for judicial notice requesting the court to find that the clerk had complied with sections 27-43-1 and 27-43-3 and a motion to vacate an April 13, 2007, hearing. The chancellor found all of Gober’s motions to be frivolous. On July 13, 2007, Gober appealed. Because Gober failed to timely file his appeal pursuant to Rule 4 of the Mississippi Rules of Appellate Procedure, we lack jurisdiction over this matter and must dismiss Gober’s appeal. However, we address the underlying assignments of error since the record reflects confusion over the chancellor’s entry of two final judgments.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 28, 2005, Lee filed a complaint to void a tax deed, naming Gober and Arthur Johnston, in his capacity as the current chancery clerk of Madison County, Mississippi, as defendants. Lee alleged that the former chancery clerk did not satisfy the applicable redemption notice requirements pursuant to sections 27-43-1 and 27-43-3 before Madison County sold his property.

¶ 3. Johnston agreed with Lee that the chancery court should set aside the tax sales of Lee’s property and void the resulting tax deed held by Gober because of the former chancery clerk’s noncompliance with sections 27-43-1 and 27-43-3. Gober appeared pro se - and filed an answer to Lee’s complaint on January 3, 2006. Gob-er asserted no affirmative defenses in his answer, but he claimed that the former chancery clerk had complied with the redemption notice requirements under sections 27-43-1 and 27-43-3.

¶ 4. On April 10, 2006, Lee filed a Mississippi Rule of Civil Procedure 56 summary judgment motion evidencing the former chancery clerk’s failure to comply with the redemption notice requirements pursuant to sections 27-43-1 and 27-43-3. Johnston joined Lee’s motion on May 18, 2006. The chancery court heard Lee’s summary judgment motion on July 26, 2006. All parties were present. Gober offered no probative evidence to refute the evidence Lee presented in support of his summary judgment motion. The chancellor granted Lee’s summary judgment motion.

¶ 5. On August 25, 2006, the chancellor held a hearing in which Johnston and Lee formally presented a proposed final judgment voiding the tax deed and setting aside the tax sales consistent with the court’s July 26, 2006, summary judgment hearing. On August, 25, 2006, the chancellor signed the proposed judgment (First Final Judgment), and it was entered on the same day.

¶ 6. However, Lee was unaware that the August 25, 2006, judgment had been entered. So, on January 17, 2007, Lee filed a motion for entry of final judgment. On February 2, 2007, the chancellor entered a second copy of the final judgment (Second Final Judgment). The Second Final Judgment, entered on February 2, 2007, was identical to the First Final Judgment entered on August 25, 2006.

¶ 7. On February 13, 2007, Gober filed a motion for a new trial. On March 2, 2007, Gober filed a motion for judicial notice that the chancery clerk had complied with the redemption notice requirements pursuant to sections 27-43-1 and 27-43-3. The chancellor denied both motions at a April 13, 2007, hearing. On April 20, 2007, Gob-er filed a motion to vacate the April 13, 2007, hearing. On May 7, 2007, Lee moved for sanctions against Gober on the basis that Gober’s motions constituted inflammatory and frivolous filings.

¶ 8. On July 6, 2007, the chancellor entered an order that both imposed a sanction on Gober and also denied Gober’s pending motion to vacate the April 13, 2007, hearing. The sanction imposed by the chancellor restricted Gober from filing any further pleadings in the present cause. Gober appealed on July 13, 2007.

¶ 9. The record reflects that Gober untimely filed his notice of appeal. Therefore, this Court does not have jurisdiction over this matter. However, we address the underlying assignments of error since the record reflects confusion over the chancellor’s entry of two final judgments.

DISCUSSION

I. Notice of Appeal Pursuant to Rule 4(a) of the Mississippi Rules of Appellate Procedure

¶ 10. On appeal, questions of law are reviewed de novo. Par Indus. v. Target Container Co., 708 So.2d 44, 47(5) (Miss. 1998) (citation omitted). Gober appeals pro se. Gober’s argument is somewhat broad and difficult to discern. However, he argues that the chancery court erred when it entered summary judgment in favor of Lee and voided Gober’s tax deed.

¶ 11. Rule 4(a) requires that a putative appellant’s “notice of appeal ... shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment ... appealed from.” Additionally, Mississippi Rule of Appellate Procedure 2(a) states that “an appeal shall be dismissed if the notice of appeal was not timely filed pursuant to Rule 4....”

¶ 12. Gober untimely filed his notice of appeal. The chancery court entered its First Final Judgment on August 25, 2006, and entered its Second Final Judgment on February 2, 2007. Gober filed his appeal on July 13, 2007. Even if we were to hold that the thirty-day time period stated in Rule 4(a) began to run on February 2, 2007, Gober’s notice of appeal was still untimely filed.

II. Request for a New Trial Pursuant to Rule 59 of the Mississippi Rules of Civil Procedure

¶ 13. The standard of review when a trial judge denies a motion for a new trial is abuse of discretion. Tentoni v. Slayden, 968 So.2d 431, 441(27) (Miss.2007) (citation omitted). The running of the time to file an appeal under Rule 4(a) of the Mississippi Rules of Appellate Procedure is tolled when a party files a motion for a new trial within ten days after entry of final judgment. See M.R.C.P. 59(a)-(b). Gober filed his motion for a new trial on February 13, 2007, which was more than ten days after the chancery court’s Second Final Judgment dated February 2, 2007. Therefore, Gober’s motion for a new trial was untimely filed.

¶ 14. Had Gober’s motion for a new trial pursuant to Rule 59 been timely filed, then under Rule 4(d), Gober’s appeal would have been timely filed — as the time for appeal would run from the entry of the order disposing of that motion. M.R.A.P. 4(d). However, since Gober’s Rule 59 motion was untimely, we lack jurisdiction in this matter. For the above reasons, we must dismiss Gober’s appeal.

¶ 15. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.

      . Mississippi Code Annotated section 27-43-1 provides that: "[T]he clerk of the chancery court shall, within one hundred eighty (180) days and not less than sixty (60) days prior to the expiration of the time of redemption with respect to land sold, either to individuals or to the state, be required to issue notice to the record owner of the land sold as of 180 days prior to the expiration of the time of redemption. ...”

      . Mississippi Code Annotated section 27-43-3 requires, in part, that: "[T]he clerk shall issue the notice to the sheriff of the county of the reputed owner's residence, if he be a resident of the State of Mississippi, and the sheriff shall be required to serve personal notice as summons issued from the courts are served, and make his return to the chancery clerk issuing same. The clerk shall also mail a copy of same to the reputed owner at his usual street address, if same can be ascertained after diligent search and inquiry, or to his post office address if only that can be ascertained, and he shall note such action on the tax sales record. The clerk shall also be required to publish the name and address of the reputed owner of the property and the legal description of such property in a public newspaper of the county in which the land is located, or if no newspaper is published as such, then in a newspaper having a general circulation in such county. Such publication shall be made at least forty-five (45) days prior to the expiration of the redemption period.... Should the clerk inadvertently fail to send notice as prescribed in this section, then such sale shall be void and the clerk shall not be liable to the purchaser or owner upon refund of all purchase money paid.”


text:
    David E. LYONS a/k/a David Earl Lyons a/k/a Fox, Appellant v. Christopher B. EPPS, Appellee.
    No. 2007-CP-01194-COA.
    Court of Appeals of Mississippi.
    April 7, 2009.
    David E. Lyons, Appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J., for the Court.

¶ 1. David Lyons, a pro se litigant, seeks judicial review of a decision rendered by the Mississippi Department of Corrections’ (MDOC) Administrative Remedy Program regarding the computation of his time to serve. Because we find that Lyons failed to timely file his appeal pursuant to Mississippi Rule of Appellate Procedure 4(a) and (h), we lack jurisdiction over his appeal and must dismiss it.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 18, 2007, the trial court denied Lyons’s appeal, seeking judicial review of the MDOC’s Administrative Remedy Program’s adverse decision regarding the computation of his time to serve. On July 10, 2007, Lyons signed his notice of appeal, and the circuit clerk stamped and filed his notice of appeal on July 16, 2007. On July 17, 2007, Lyons filed a Rule 4(h) motion seeking to reopen the time to file his appeal. Lyons stated in his Rule 4(h) motion that he did not receive notice of the trial court’s adverse order of May 18, 2007, until June 25, 2007.

Timeliness of Appeal

¶ B. We conduct a de novo review of issues of law. Whitt v. Gordon, 872 So.2d 71, 73(7) (Miss.Ct.App.2004). Mississippi Rule of Appellate Procedure 2(a)(1) provides for mandatory dismissal of an appeal if the notice of appeal was not timely filed pursuant to Mississippi Rules of Appellate Procedure 4 or 5. M.R.A.P. 2(a)(1).

¶ 4. Rule 4(a) provides a time line for filing an appeal. Rule 4(a) provides in part that: “[t]he notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 30 days after the entry of judgment or order appealed from.” M.R.A.P. 4(a). Lyons signed his notice of appeal on July 10, 2007, and the circuit clerk stamped and filed Lyons’s notice on July 16, 2007. Lyons failed to timely file his notice of appeal within 30 days of the trial court’s adverse order of May 18, 2007.

¶ 5. Lyons argues that he did not receive notice of the trial court’s May 18, 2007, order until June 25, 2007. “Situations where a defendant receives late notice of the entry of an order are provided for in Rule 4(h).” Minchew v. State, 967 So.2d 1244, 1247(7) (Miss.Ct.App.2007). Rule 4(h) provides for a limited exception to Rule 4(a) by allowing a trial court to reopen the time period for an appeal. Rule 4(h) states:

The trial court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.

(Emphasis added).

¶ 6. Pursuant to Rule 4(h), Lyons should have filed his Rule 4(h) motion to reopen his time for appeal within seven days of June 25, 2007 — which is the date Lyons claims that he first received notice of the trial court’s adverse order of May 18, 2007. However, Lyons waited to file his Rule 4(h) motion until July 17, 2007.

¶ 7. Because Lyons failed to timely file his appeal pursuant to Rule 4(a) and (h), this Court lacks jurisdiction over Lyons’s appeal. Therefore, in accordance with Rule 2(a)(1), we must dismiss this appeal.

¶ 8. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEFLORE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.


author: IRVING, J., for the Court.

text:
    Monte Stuart MORRIS, Appellant, v. Lou Ann James MORRIS, Appellee.
    No. 2007-CA-00816-COA.
    Court of Appeals of Mississippi.
    April 7, 2009.

      Herman M. Hollensed, Hattiesburg, attorney for appellant.
    Erik M. Lowrey, David Alan Pumford, Hattiesburg, attorneys for appellee.
    Before KING, C.J., IRVING, GRIFFIS and CARLTON, JJ.
   IRVING, J., for the Court.

¶ 1. Monte Stuart Morris and Lou Ann James Morris agreed to an irreconcilable differences divorce and submitted a written agreement to the Lamar County Chancery Court wherein they agreed to property division, child support, and alimony. The agreement was ratified and approved by the chancery court and incorporated in the final judgment of divorce. Four years later, Monte filed a motion to modify the final judgment, arguing, among other things, that his alimony payments should be substantially reduced or terminated. The chancellor denied Monte’s request. Feeling aggrieved, Monte appeals and asserts that the chancellor erred in refusing to reduce or terminate his alimony payments.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 8. Monte and Lou Ann were divorced on November 6, 2001; two children, Kevin Stuart and Anna Claire, were born to the marriage. Kevin was sixteen years old, and Anna Claire was twelve years old at the time the divorce was entered. The final judgment of divorce provided among other things: (1) that the parties would share joint legal custody of the children and that Monte would make child support payments of $500 per child, per month, (2) that Monte would be responsible for maintaining Lou Ann’s medical insurance, (3) that Monte would convey his interest in the marital home to Lou Ann and pay the mortgage, taxes, and insurance, and (4) that Monte would pay Lou Ann $1,500 per month in permanent alimony.

¶ 4. On July 27, 2006, Monte filed a motion to modify the final judgment of divorce, alleging that he had experienced a substantial reduction in his income and net worth. Monte also alleged that Lou Ann had received a substantial increase in her income and net worth. Further, Monte argued that Lou Ann had a greater ability to earn income than she did at the time of divorce. Monte petitioned the court to modify the final judgment to reflect: (1) that his obligation to pay child support for Kevin and Anna Claire shall cease when they reach the age of twenty-one, (2) that his obligation to pay taxes and insurance on the marital home be terminated immediately, and (3) that his alimony payments be substantially reduced or terminated.

¶ 5. Lou Ann filed an answer and counterclaim wherein she acknowledged that Monte was no longer obligated to pay child support for Kevin, as he had reached twenty-one years of age. Lou Ann also requested that Monte’s child support payments for Anna Claire be adjusted to reflect fourteen percent of his adjusted gross income.

¶ 6. A hearing was held on February 13, 2007. Monte testified that his financial condition had declined to the point that he could no longer afford to pay Lou Ann $1,500 per month in alimony. Following the hearing, the chancellor determined that Monte was no longer required to pay child support for Kevin. The chancellor also determined that Monte’s annual income exceeded $50,000 and increased his child support payments for Anna Claire’s benefit from $500 per month to $583.73 per month. The chancellor further determined that Monte’s obligation to pay taxes and insurance on the marital home would cease five years after the retirement of the mortgage. However, the chancellor refused to reduce or terminate Monte’s obligation to pay alimony. It is from this decision that Monte appeals.

¶ 7. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. “When reviewing a chancellor’s decision, [an appellate court] will accept the chancellor’s findings of fact as long as the evidence in the record reasonably supports those findings.” Norton v. Norton, 742 So.2d 126, 128-29 (¶ 8) (Miss.1999) (citing In re Estate of Taylor v. Thompson, 609 So.2d 390, 393 (Miss.1992)). An appellate court will only disturb a chancellor’s findings in instances where the findings are clearly erroneous or an erroneous legal standard was applied. Id. at 129(¶ 8) (citing Hill v. Se. Floor Covering Co., 596 So.2d 874, 877 (Miss.1992)).

¶ 9. In Steiner v. Steiner, 788 So.2d 771, 776(¶ 15) (Miss.2001), the Mississippi Supreme Court stated that “[s]upport agreements for divorces granted on the ground of irreconcilable differences are subject to modification.” Additionally, the court noted that “[t]he modification can occur only if there has been a material change in the circumstances of one or more of the parties.” Id. (citing Varner v. Varner, 666 So.2d 493, 497 (Miss.1995)). Further, in Tingle v. Tingle, 573 So.2d 1389, 1391 (Miss.1990) (citing Clark v. Myrick, 523 So.2d 79, 82 (Miss.1988)), our supreme court stated that the material change must concern circumstances that arise after the original divorce decree was entered. The Tingle court also stated that the change could not have been anticipated at the time of the divorce. Id. (citing Morris v. Morris, 541 So.2d 1040, 1043 (Miss.1989)).

¶ 10. Monte argues that the chancellor erred in failing to grant his motion for a cessation or substantia] reduction of his alimony payments. The alimony provision of the property settlement agreement reads as follows:

ALIMONY. Husband shall pay to Wife the amount of $1,500.00 per month as permanent alimony, with $750.00 being due and payable on the first (1st) day of each month and the remaining $750.00 being due and payable on the fifteenth (15th) day of each month. This requirement of permanent alimony shall cease upon the death or remarriage of Wife.

¶ 11. Monte makes two arguments in support of his contention that the chancellor erred in failing to reduce or terminate his alimony payments: (1) that Lou Ann’s receipt of disability benefits constitutes a material change in circumstances, and (2) that since the divorce was granted, Lou Ann has received an increase in income while he has experienced a reduction in income, one that he did not anticipate at the time that the agreement was reached. The crux of Monte’s argument, as it relates to Lou Ann’s increase in income, is based on her receipt of disability benefits following their divorce. In 2001, Lou Ann twice applied for disability benefits; however, her first two requests were denied, and she was not approved until 2003. She then received back benefits from the date of her initial filing. Lou Ann testified that, in addition to her disability benefits, she receives income for consulting work that she does several days a week for Deaconess Home Health and Hospice.

¶ 12. In his brief, Monte asserts that “[w]hen the parties were divorced, Lou Ann did not have disability income to satisfy her standard of living.” It is puzzling to this Court how Monte can argue on appeal that Lou Ann’s receipt of disability benefits constitutes a material change in circumstances when this was clearly not an unanticipated event.

¶ 13. First, the plain language of their agreement reflects that it was anticipated that Lou Ann would receive disability benefits at some point in the future. The following excerpt is taken from the medical insurance provision of the property settlement agreement:

Further, Husband shall continue to maintain and pay for Wife’s medical insurance costs, presently being $209.00 per month. If, in the future, Wife does, in fact, receive disability for which insurance would be applicable, then the parties agree that any reduction in cost to her, as it relates to medical insurance premiums, would be payable by Husband at the reduced amount, and Wife will supply said insurance information to Husband, whether for direct payment or for reimbursement to her. Also Wife agrees that if the Disability Insurance allows for coverage of the children at a savings from the insurance which is now being supplied by Husband, she will allow the children to be added to the policy for which Husband will continue to be responsible for the premiums and any unpaid amount of deductible or coverage.

(Emphasis added).

¶ 14. Second, Monte testified at the modification hearing that, although Lou Ann was not working at the time of their divorce, he was aware that she had taken steps to receive disability benefits:

Q. Monte, when you and Lou Ann divorced, was she working to your knowledge?
A. No, not to my knowledge.
Q. Was it your understanding that she had no income at that time?
A. That is my understanding.
Q. Was she seeking to get on disability at that time to your knowledge?
A. To my knowledge that was the plan that she was proceeding with.

(Emphasis added).

¶ 15. Despite Monte’s acknowledgment at the hearing that he was aware when he and Lou Ann entered into the agreement that Lou Ann “was seeking to get on disability,” he now argues that her receipt of those very benefits constitutes a material change in circumstances. We conclude that the chancellor did not err in finding that Monte failed to prove that Lou Ann’s receipt of disability benefits constitutes a material change in circumstances.

¶ 16. We now turn to Monte’s argument as it relates to his reduction in net worth and income. Monte’s major source of income is derived from his position as vice president of a family-owned collection agency. Monte testified that each year he receives a salary, as well as forty-five percent of any profits that the company makes. According to Monte, he has experienced a reduction in income due to competition and a downturn in market conditions. We note at the outset that the record does not contain Monte’s 8.05 statement that was considered by the chancellor during the divorce proceedings in November 2001. However, his 2001 federal tax return, which was admitted into evidence during the modification hearing, shows that his income for that year was $158,749. Also, Monte testified at the modification hearing that his net worth at the time of the divorce in 2001 was approximately $650,000. Monte’s assessment of his net worth at the time of the divorce is not contradicted by anything in the record.

¶ 17. In support of his motion for modification, Monte filed a joint 8.05 statement with his new wife, Christina. This statement reflects that their net worth at the time of the modification hearing was $552,986.36.

¶ 18. The record reflects that Monte’s annual salary from 2001 to 2005 was $55,000. In addition to his salary, he received the following amounts in profits from the family-owned business: approximately $80,000 in 2001, $92,000 in 2002, $62,000 in 2003, $48,000 in 2004, and $15,000 in 2005. Monte testified that his salary in 2006 was $75,000 and that he expected to receive $15,000 in year-end profits, although he had not received the $15,000 at the time of the hearing in February 2007. The joint 8.05 statement shows that Monte’s monthly income in February 2007 was $7,583, comprised of $6,250 in salary from the family business and $1,333 in dividends and interest.

¶ 19. In his bench opinion denying the modification, the chancellor stated the following:

Certainly we’ve had evidence and proof about Monte’s income being reduced. He started at somewhere around 140 or $150,000 when the divorce first occurred. Through some changes, alleged changes, in the industry of his business, the income has dropped somewhere approximately 40 or $50,000. The Court is unable to determine for a fact whether or not that drop in income has affected Monte’s life-style and left him at a disadvantage in a way that would really weigh in his favor to cause the Court to determine that the Court ought to provide some relief because Monte is in a position where he’s unable to meet his obligation.
If the court looks at the assets that Monte has, Monte still has anywhere from four to $500,000 in assets. Monte has the ability as the owner of his business to make adjustments in how he receives income. He even increased his monthly income in a way that produced approximately a $20,000 increase in the year 2006. He’s also going to get profits from his business that is [sic] yet to be determined.

¶ 20. In Holcombe v. Holcombe, 813 So.2d 700, 706 (¶32) (Miss.2002), a chancellor refused to reduce a husband’s alimony payments even though the 73-year-old husband had clearly experienced a significant reduction in income and a deterioration in health since the divorce. The parties in Holcombe were granted a divorce in 1991 after forty years of marriage. Id. at 701 (¶ 1). The husband, who had worked for forty-nine years as a traveling salesman, was ordered to pay the wife periodic alimony. Id. at 702 (¶¶ 1-2). In 2000, the husband petitioned the chancery court for a reduction in his alimony payments on two bases: his income had been substantially reduced and his health was deteriorating. Id. at 701 (¶ 1). The husband testified that his loss of income was a result of his losing a long-time client from which he generated the majority of his business income. Id. at 704 (¶ 14).

¶21. On appeal, the Mississippi Supreme Court affirmed the chancellor’s decision and noted that “[f]rom 1991 to 1998 [the husband’s] annual gross business income had an estimated average of $138,576.00.” Id. at 701 (¶ 1). The court also noted that the husband had experienced a significant reduction in gross business income, as his earnings went from $146,187 in 1998 to $61,116 in 1999. Id. at 702 (¶ 5). The court further noted the chancellor’s findings:

After taking the above into consideration and finding the sole grounds offered by [the husband] for the alimony modification to be his decrease in income and deteriorating health, the chancellor refused to modify the divorce decree. He found there was no material change in [the husband’s] circumstances warranting modification. In support of this position, the chancellor noted that [the husband’s] spending habits and lifestyle had not changed as a result of losing the Frisco Manufacturing furniture line; he was still able to travel and had not missed work since the loss of the Frisco line; he had new sources of income from his mandatory retirement and social security payments....

Id. at 708 (¶ 9).

¶ 22. As stated, our supreme court affirmed the chancellor, even though it recognized that the husband had experienced a significant reduction in income. Id. at 706 (¶ 32). The court noted the chancellor’s finding that the husband’s “lifestyle and spending habits indicate the loss in business had no effect upon his purchasing decisions.” Id. The spending habits that the court was referring to was the husband’s purchase of “a 2000 automobile with a large monthly payment despite his loss of income.” Id. at 705 (¶ 25). The supreme court summarized its holding as follows:

After reviewing these facts, we conclude that the chancellor did not err in refusing to modify the divorce degree in [the husband’s] favor. Surely [the husband’s] business suffered from the loss of the [long-time client] and his health continues to deteriorate with his increasing age. However, his lifestyle and spending habits indicate the loss in business had no effect upon his purchasing decisions. He admirably continues to work and had not missed any work up to the chancellor’s hearing. Furthermore, he is a salesman of such quality that soon after losing the [long-time client], he was able to pick up two more [clients]....

Id. at 706 (¶ 32).

¶23. Here, the chancellor found that Monte’s net worth and income had been substantially reduced but concluded that he could not determine whether this reduction had affected Monte’s lifestyle. On this point, we note that there is nothing in the record that indicates the quality of Monte’s lifestyle at the time of the divorce, but it does shed some light on the lifestyle that Monte has enjoyed since his divorce from Lou Ann. Monte testified: (1) that he has a country club membership, (2) that in 2005, he purchased a used 2003 Cadillac, (3) that he purchased a vehicle for his wife, (4) that he has two “Sea-Doos,” (5) that he has several checking and savings accounts with a total of $26,200 contained therein, as well as several investment accounts which total over $400,000.

¶ 24. Based on our supreme court’s holding in Holcombe, we conclude that the chancellor’s decision to deny Monte a reduction or termination of his alimony payments is supported by substantial evidence. This issue lacks merit.

¶ 25. THE JUDGMENT OF THE LAMAR COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . As a term of their agreement, Monte also agreed to give Lou Ann a lump-sum payment of $100,000, rather than transfer taxable assets to her.

      . The chancellor also ordered that the payments of $583.73 be made retroactive to November 2006.

      . Lou Ann testified that her health problems are the result of a bout with Cushing's Disease. Lou Ann stated that she began having problems from the disease that required three surgeries, approximately three years prior to her divorce. Following the third surgery, she developed meningitis and lapsed into a coma. Lou Ann testified that she still suffers from problems which resulted from the meningitis and the coma.

      . Monte and his sister each own forty-five percent of the company, and his father owns ten percent.

      . Rule 8.05 of the Uniform Chancery Court Rules requires parties in domestic cases to file a financial disclosure statement.

      . The court did not state the husband’s gross business income at the time of the divorce.


author: MURDOCK, Justice.

text:
    Ex parte A & B TRANSPORT, INC., and James Allemang. (In re Henry Graben, individually and as personal representative of the estate of Una J. Graben, deceased v. A & B Transport, Inc., and James Allemang).
    1060310.
    Supreme Court of Alabama.
    Dec. 28, 2007.
    Rehearing Denied Oct. 17, 2008.

      Shane M. Oncale and Cynthia N. Williams of Clark, Oncale, Hair & Smith, PC, Birmingham, for petitioners.
    William W. Smith, Nicole L. Judge, and W. Cone Owen, Jr., of Smith & Alspaugh, P.C., Birmingham, for respondent.
   MURDOCK, Justice.

A & B Transport, Inc., a Louisiana corporation, and James Allemang petition this Court for a writ of mandamus directing the Calhoun Circuit Court to vacate its order granting relief pursuant to Rule 60(b)(6), Ala. R. Civ. P., and to enter an order denying such relief. We grant the petition and issue the writ.

In November 1999, a vehicle occupied by-Henry Graben and his wife, Una J. Gra-ben, collided with a tractor-trailer rig operated by Allemang, an employee of A & B. Una died as a result of the collision; Henry was injured. In November 2000, Henry, both in his individual capacity and in his capacity as the personal representative of Una’s estate, filed an action in the Calhoun Circuit Court against A & B and Allemang based on the alleged wrongful death of Una and his personal injuries.

A & B and Allemang were insured by Legion Insurance Company, which was placed in receivership in Pennsylvania in April 2002. In October 2002, on the date scheduled for the trial of Henry’s action, Henry, A & B, and Allemang entered into a settlement agreement on the record. The transcript of the settlement-agreement colloquy reflects that a judgment would be entered against A & B and Al-lemang for $750,000, but that “[enforcement of the judgment [would] be limited specifically to the insurance carriers that could have applicable coverage and/or the guarantee funds that may have applicable coverage.” The coverage limits under Legion’s insurance policies insuring A & B and Allemang exceeded the amount of the judgment. The transcript of the settlement-agreement colloquy also reflects the following discussion between Shane On-cale, the attorney representing A & B and Allemang; Henry’s counsel; and the trial court:

“[Shane Oncale]: ... In addition I will say for the record that Legion Insurance and their third party administrator have objected vigorously to any sort of consent judgment to be entered, but I’m here and I represent A & B Transport, and A & B Transport wishes to protect its interests and protect itself against future exposure on this claim[]
“[Henry’s counsel]: Judge, just for the record too, I’d like the record to reflect that it is [Henry’s] understanding that the insurance carrier, Legion Insurance, who insures all the defendants in the case and also had the excess coverage, has been ordered into liquidation according to what has been represented to us, and they have that, you know, on appeal, and that is a factor in entering into our decision in entering into the settlement.
“[Shane Oncale]: Sure. Let me make sure this is clear. I think there’s been a liquidation order entered that is being challenged and there’s a hearing on that in about three weeks on a stay that was technically in effect until December 30. I don’t think it’s correct to say it’s on appeal. I want to make sure that’s clear. It would be the same as if you entered an order and someone entered a motion for a new trial, for example.
“THE COURT: But the order is being contested in some manner?
“[Shane Oncale]: Correct.
“THE COURT: Okay. All right.”

On December 20, 2002, the trial court entered a “Consent Decree”; that order states:

“The above referenced case came before this Honorable Court for trial on October 21, 2002. At that time, the parties engaged in significant negotiations that resulted in an agreement that a compromise judgment of $750,000 be entered in favor of [Henry] ... and against the defendants [A & B and Al-lemang]. As an express condition of this compromise judgment, [Henry] agreed to limit execution and enforcement of the judgment to any and all applicable policies of insurance and/or any and all available funds from the applicable Guarantee [Fund] Associations. [Henry] agree[s] to hold harmless [A & B and Allemang] against any attempts to collect against their personal or corporate assets and further release them from any and all claims associated with the automobile accident in question. The defendants make no representation as to the collectability of the judgment and all risks associated with the collecta-bility of the judgment herein entered falls upon [Henry],
“Consistent with the agreement of the parties, it is, therefore, ORDERED, ADJUDGED, and DECREED:
“A. That [Henry] ... recover the sum of Seven Hundred Fifty Thousand Dollars ($750,000) from the defendants [A & B and Allemang].
“B. That the recovery by [Henry] ... be expressly limited to any and all insurance proceeds and/or any and all funds available under any and all applicable Guarantee Fund Associations and are expressly prohibited from any collection attempts against the assets of [A & B and Allemang] .... ”

In July 2003, Legion was declared insolvent. Thereafter, Henry filed a proof of loss with the Louisiana Insurance Guaranty Association (“LIGA”), which allegedly provided coverage for Henry’s claims against Legion. If Henry’s claims qualified as covered claims, Henry apparently would have been entitled to $150,000 per claim, or a total of $300,000, less a small deductible. LIGA refused to pay Henry’s claims.

In June 2004, Henry filed a motion in the trial court to enforce the consent judgment against LIGA. In August 2004, the trial court entered an order stating that the consent judgment was binding on LIGA and that Henry could “pursue all remedies available to collect the judgment.” LIGA filed a motion to quash the August 2004 order, claiming that LIGA was not a party to Henry’s action that had resulted in the consent judgment, that it was not served with process in connection with the action, and that it had had no opportunity to be heard concerning the alleged settlement. In October 2004, the trial court entered an order setting aside its August 2004 order, with leave for Henry to serve LIGA with process and subsequently to request that the court readdress the issue of LIGA’s liability.

On November 16, 2004, Henry apparently filed a separate action directly against LIGA in the Calhoun Circuit Court.

In June 2006, Henry filed a Rule 60(b)(6), Ala. R. Civ. P., motion in his action against A & B and Allemang, seeking relief from the trial court’s December 20, 2002, consent judgment. Among other things, Henry asserted as follows in his Rule 60(b)(6) motion:

“5. On November 16, 2004, [Henry] filed a Complaint against LIGA, and [A & B and Allemang] in this suit, under Alabama’s direct action statute, Ala. Code [1975,] § 21-23-1.[ ] (In the Circuit Court of Calhoun County, Alabama, Civil Action No. 04-1011).
“6. LIGA has vigorously defended the collateral suit, raising a number of defenses to enforcement of the Consent Decree, chief among these the fact that A & B and Allemang consented to entry of the Consent Decree without permission of Legion, and therefore breached the policy at issue.
“7. In the course of discovery, it has come to light that between the time the Consent Decree was read into the record (October 21), and the time it was actually entered as a judgment (December 20), Legion officials authorized attorney Shane Oncale to settle this cause for $800,000.00, with the provision that [Henry] would have to wait out Legion’s ongoing problems before seeking payment. According to an e-mail from On-cale, dated Friday, November 22, 2002:
“ ‘... [I]n order to avoid further litigation of the issue and to protect Legion’s exposure, Tom [Carey, an insurance adjuster for Legion,] has authorized a post judgment settlement in the amount of 300K.’
“8. At no time between the date of the e-mail (November 22) and the date the Consent Decree was entered was [Henry] made aware that Legion was prepared to settle this case. In fact, [Henry] did not become aware of this fact until the deposition of Legion adjuster Tom Carey, taken in late 2005.[] Had [Henry] been aware that Legion offered to indemnify its insureds in return for entry of a judgment of $300,000.00, [Henry] would have readily accepted same, in light of the fact that the coverage issues which have dogged this case for years would have evaporated.
“9. Rule 60(b)(6) allows a party to be relieved from a judgment more than four (4) months after the judgment has been entered in cases involving exceptional circumstances which implicate equitable grounds for allowing the moving party relief. Shipe v. Shipe, 477 So.2d 430, 432 (Ala.Civ.App.1985) (citation omitted).
“10. If ever a circumstance cried out for the steady hand of equity, the present one certainly qualifies. Henry Gra-ben lost his wife in a terrible accident, as well as suffering his own personal injuries. Through no fault of his own, his effort to obtain justice has been stymied by the fact that the tortfeasors secured liability and umbrella insurance with the same mediocre company, which subsequently went belly up. In an effort to protect Mr. Graben’s chances at any future recovery, [Henry’s] counsel agreed to a Consent Decree which would at least allow for the opportunity to pursue relief at a later stage. However, unbeknownst to anyone, a month before the Consent Decree was made final Legion was in fact willing to settle this claim for a fair and reasonable amount. The fact that [Henry] was not aware that Legion was willing to settle this case on behalf of its insureds was an incidence of severe prejudice that can only be corrected by setting aside the Consent Decree and allowing this case to proceed.”

(References to exhibits omitted.)

A & B and Allemang filed a response to Henry’s Rule 60(b)(6) motion, asserting (1) that Henry’s motion was “not adequately supported,” “lack[ed] a factual basis,” “contain[ed] misstatements of facts,” and “[was] not supported by affidavit or other testimony,” and (2) that Henry’s motion was untimely. In support of the former assertion, A & B and Allemang noted that Henry had filed no affidavit to support his assertion that he was not “made aware that Legion was prepared to settle [the] case” for $300,000. Also, A & B and Allemang filed an affidavit from Oncale in which he stated: “Contrary to the assertions contained in [Henry’s] motion, Legion’s offer to modify the $750,000.00 Consent Decree to a $300,000.00 Consent Decree was offered to [Henry] before the Consent Decree was entered by the Court.” A & B and Al-lemang also filed a document reflecting November 22, 2002, e-mails between On-cale and representatives from Legion concerning the $300,000 settlement offer; On-cale’s time-entry records, which reflect that he had settlement discussions with Henry’s attorneys after the October 2002 settlement proceedings and after Legion discussed the $300,000 settlement offer with him but before the entry of the consent judgment; and a copy of a letter dated December 12, 2002, from Oncale to Shane Gustafson, an employee of Ward North America who apparently was connected with Legion’s settlement of the claim, concerning the rejection by Henry’s attorneys of the $300,000 settlement offer.

A portion of a November 22, 2002, email transmission from Oncale to Gustaf-son states:

“Ok, Tom [Carey] is clear that there is no exposure to the insureds under the current 750K judgment and that there may exist valid contractual and legal defenses that could be raised by Legion against any collection attempts by [Henry], Nonetheless, in order to avoid further litigation of the issue and to protect Legion’s exposure, Tom has authorized a post judgment settlement in the amount of 300K. This settlement would benefit [Henry] by removing Legion’s contractual and legal defenses against collection. The settlement benefits Legion by limiting its exposure and by curtailing the need for further litigation on the contractual and legal defenses. The settlement benefits the insured because it wipes out the outstanding judgment that would otherwise attach to their credit. I will present the offer, take it or leave it, to [Henry] and try hard to sell it because it obviously is to everyone’s benefit. I will report when I hear something.”

Oncale’s time records include the following entry for December 3, 2002: “Meeting with [Henry’s attorneys] to discuss offer of settlement made by Legion and the benefits to all parties in the acceptance of such an agreement.” They also include the following entry for December 5, 2002: “Correspondence to Mr. Gustafson and Mr. Carey reporting on rejection of offer by [Henry] and our strategy.” An entry of December 10, 2002, states: “Correspondence to Mr. Gustafson regarding rejection of our offer of settlement and contact with State Farm on underinsured motorist claim.”

The December 12, 2002, letter from On-cale to Gustafson states:

“This letter will confirm that I have now had an opportunity to meet with [Henry’s attorneys].... Despite my urgings to the contrary, they have refused to take our settlement offer in the amount of $300,000. Instead, they intend to go forward with the attempted enforcement of the Consent Judgment entered in the amount of $750,000.
“To this end, I have now also been contacted by the attorneys representing the uninsured/underinsured motorist carrier for Henry. ... It appears that [Henry] has now made a claim back against his own insurance carrier for the anticipated shortfall between the $300,000 collectible from the [LIGA] and the $750,000 judgment....
“Based on my conversations with [Henry’s] attorneys, it seems likely that they will simply wait for a liquidation order to be entered rather than file an appearance ... in the rehabilitation case seeking to enforce the judgment. Regardless, it does not appear that our efforts to resolve this case by negotiated settlement will be fruitful. [Henry] will now risk the defenses available to both Legion and [LIGA] should Legion ultimately go into liquidation. Apparently, they do not feel the defenses are very viable.
“Regardless, [Henry’s] rejection of our post-judgment settlement offer brings our handling of this case to a conclusion.”

Also, in support of their assertion that Henry’s motion was untimely, A & B and Allemang noted that even if Henry did not learn of the $300,000 settlement offer until Carey’s deposition in late 2005, he nonetheless waited over six months after he allegedly learned of the $300,000 offer to file his Rule 60(b) motion.

In October 2006, the trial court entered an order, which had been prepared by Henry’s counsel. That order states, in part:

“[Henry’s attorneys] have stated that they have no recollection of whether Legion’s offer to settle for $300,000 was ever communicated to them. Attorney Shane Oncale, who represented A & B and James Allemang in the initial suit, has presented circumstantial evidence that he apprised [Henry’s] counsel of Legion’s settlement offer, in the form of correspondence from Oncale to the Legion adjuster, and time sheets indicating that Oncale met with [one of Henry’s attorneys] at or around this time. However, Oncale has also informed the Court that he has no recollection of such a meeting, and there is no correspondence from Oncale to [Henry’s attorneys] that would confirm same.”

The order also notes that Rule 60(b)(6) relief is not appropriate where the exceptional circumstances warranting relief are those covered by another part of Rule 60(b), namely the grounds described in Rule 60(b)(1) through 60(b)(5). The order concluded that the grounds described in Rule 60(b)(3) through 60(b)(5) were inapplicable. It further concluded:

“Rule 60(b)(1) allows a party four months to seek relief from judgment based on ‘mistake, inadvertence, surprise, or excusable neglect.’ Mistake is that prong of 60(b)(1) that could be applied to this action. However, under these facts, the Court finds that there was no mistake that led to entry of the judgment. At the time the judgment was entered, the parties put to paper their understanding or the terms of the judgment. Neither party disputes the same. Neither party claims that they did not understand, or had a mistaken understanding as to the terms of the judgment. Simply put, there was no ‘mistake’ that caused the judgment to be entered. Consequently, 60(b)(1) does not bar [Henry’s] motion.

“Rule 60(b)(2) is the newly discovered evidence ground for relief which also must be asserted within four months from the entry of judgment. Like the mistake exception discussed above, a cursory examination of the facts implicates newly discovered evidence in the form of the allegedly previously unknown $800,000.00 settlement offer as the basis of [Henry’s] motion. A closer reading though, indicates that [Henry] has not asserted discovery of the $300,000.00 offer as a ground for relief from the judgment, but as factual evidence related to the parties understanding of and relation to the events giving rise to the judgment. The Court cannot say that [Henry] has definitively argued newly discovered evidence as a sole and independent ground for relief from the judgment. Therefore, plaintiffs motion is not encompassed by Rule 60(b)(2).” The order then concluded that the facts reflected “ ‘exceptional circumstances’ that cast a pall over the judgment and implicate this Court’s power and duty in equity to see that justice is done.” The order granted Henry’s motion to set aside the consent judgment and required the court clerk to return the case to the active docket.

Standard of Review

A & B and Allemang seek relief from the October 2006 order by way of the writ of mandamus.

“ ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ”

Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala.2003) (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)). A petition for the writ of mandamus is a proper method for attacking the grant of a Rule 60(b) motion. See Ex parte Baker, 459 So.2d 873 (Ala.1984).

Rule 60(b) states:

“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (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; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken.”

As this Court stated in Ex parte Baker:

“Without question, a movant must both allege and prove one of the grounds set forth in Rule 60 in order to be granted relief under that rule. Moreover, because Rule 60(b) relief is extraordinary relief, a movant has the burden of proving extraordinary circumstances and/or extreme hardship or injustice sufficient to entitle him to relief under Rule 60(b)(6). And, while the decision of whether to grant or deny the motion is within the sound discretion of the trial judge, that discretion is not unbridled.”

459 So.2d at 876 (citations omitted); see also Wood v. Wade, 853 So.2d 909, 913 (Ala.2002) (“Rule 60(b)(6) is an extreme remedy and relief under Rule 60(b)(6) will be granted only ‘in unique situations where a party can show exceptional circumstances sufficient to entitle him to relief.’ ” (quoting Nowlin v. Druid City Hosp. Bd., 475 So.2d 469, 471 (Ala.1985))). Where the party seeking Rule 60(b)(6) relief fails to allege and prove the grounds justifying that relief, the trial court exceeds its discretion by granting the motion. Ex parte Baker, 459 So.2d at 876.

Sufficiency of the Evidence

A & B and Allemang argue that Henry’s “motion lacked any factual support for his contentions regarding the $300,000 offer,” and, therefore, that the trial court exceeded its discretion when it granted Henry’s Rule 60(b)(6) motion. In part, A & B and Allemang note that Henry’s

“attorneys have not provided any affidavits to support their contention that the offer was not made, likely because they cannot affirmatively state the $300,000 offer of judgment was not made; they simply do not remember one way or another. Not remembering if an offer was made is entirely different than knowing that an offer was not made.”

By contrast, A & B and Allemang note that their “attorney does recall such conversations and has evidentiary support for his position that the offer was indeed made, including affidavits, billing records and email correspondence between the parties’ attorneys. [Henry] has made no effort to repudiate this evidentiary support.”

Before discussing A & B and Al-lemang’s argument, we first note that where there are disputed issues of fact to be resolved and the trial court has received ore tenus evidence, the ore tenus rule is applicable to our review of a ruling on a Rule 60(b)(6) motion. See Shipe v. Shipe, 477 So.2d 430, 432 (Ala.Civ.App. 1985). In the present case, however, the material “facts,” as hereinafter discussed, were not in dispute, and the trial court did not receive ore tenus evidence. Thus, the trial court’s order setting aside the consent judgment is subject to de novo review. Beavers v. County of Walker, 645 So.2d 1365, 1373 (Ala.1994) (“[Because the underlying facts are not disputed and this appeal focuses on the application of the law to those facts, there can be no presumption of correctness accorded to the trial court’s ruling, and this Court must review that application of the law de novo.”).

The materials before us do not reflect that Henry made any evidentiary submission in support of his Rule 60(b)(6) motion; they reflect only that his attorneys stated to the trial court that “they have no recollection of whether Legion’s offer to settle for $300,000 was ever communicated to them.” A & B and Allemang, by contrast, submitted two affidavits from Oncale and written materials in support of their argument that Oncale discussed the $300,000 settlement with Henry’s attorneys before the consent judgment was entered. In one affidavit, Oncale stated, in part, that he remembered

“vividly having a telephone conference with [Henry’s attorneys] attempting to explain the fact that Legion was willing to make the $300,000 settlement offer, but could not pay any money. [One of Henry’s attorneys] responded by stating, ‘Why should I take a $300,000 judgment when I already have a $750,000 judgment?’ I responded by saying ‘Legion is certain that you will never be able to collect more than the $300,000.’ [Henry’s attorney] responded by stating ‘my research shows that I can collect the $300,000 judgment against the Guarantee Association and still collect underin-sured motorist benefits.’ Within days of this discussion I was in fact contacted by State Farm inquiring about the judgment, settlement discussions and the demand made for payment by [Henry].”

Henry offered no testimony or other evidence to contradict Oncale’s assertion that this telephone conversation occurred.

Oncale also asserted that the materials submitted with his affidavits, including, in part, the e-mail correspondence between him and Gustafson, his billing records, and his December 12, 2002, letter to Gustafson, supported his recollection that the $300,000 offer was communicated to Henry’s attorneys. Oncale stated further that his billing records reflected that he had a meeting with Henry’s attorneys on December 3, 2002, to discuss the settlement. It is true that the October 2006 order by the trial court states that Oncale informed the court that he had “no recollection of such a meeting.” It is also true that the materials before us do not include “correspondence from Oncale to [.Henry’s attorneys ] that would confirm” that a meeting occurred. (Emphasis added.) Even if On-cale had no recollection as to the occurrence of a meeting, his billing records and the December 12, 2002, letter to Gustafson constitute affirmative evidence that a meeting did occur. There is no suggestion that any of the materials A & B and Allemang submitted in opposition to Henry’s motion were falsified or inaccurate.

Aside from the issue whether a face-to-face meeting occurred, however, there is nothing in the materials before us to support the conclusion that Oncale did not properly remember that he had communicated the $300,000 offer to Henry’s attorneys. The materials before us contain undisputed evidence that Oncale did communicate the $300,000 offer to Henry’s attorneys.

Again, according to the October 2006 order, Henry’s attorneys only “stated that they have no recollection of whether Legion’s offer to settle for $300,000 was ever communicated to them” — this is not a denial that Oncale communicated the offer to them or evidence indicating that Oncale failed to communicate the offer to them. In fact, Henry states in his appellate brief that his attorneys

“have no recollection of this offer ever being conveyed to them, but the evidence produced by petitioners certainly suggests that the offer was made at some time before the consent decree was entered as a final judgment.
“After learning of the presence of the $300,000.00 offer and not recalling the fact that the offer had ever been brought to their attention, counsel for [Henry] filed a Rule 60(b)(6) Motion for Relief from Judgment, arguing that equity demanded that the consent decree be set aside so that the parties could start fresh.”

(Henry’s brief pp. 6-7.) Henry’s appellate brief further states: “[I]n light of defendants’ evidentiary showing, [Henry] concede^] that it is more likely than not that [his attorneys] did have knowledge of the offer before the consent decree was entered.” (Henry’s brief p. 13 at n.9.)

Based on the foregoing, we conclude that Henry failed to meet his “burden of proving extraordinary circumstances and/or extreme hardship or injustice sufficient to entitle him to relief under Rule 60(b)(6).” Ex parte Baker, 459 So.2d at 876. All Henry proved, if anything, was that his attorneys could not recall whether they received notice of the $300,000 settlement offer. Absent evidence that would support a finding that Henry did not receive the offer, he could not prove that he would be entitled to relief pursuant to Rule 60(b)(6) (assuming, without deciding, that such relief would be proper if the $300,000 offer was not communicated to Henry’s attorneys). See note 7, supra.

Finally, Henry argues in his appellate brief that, even if the $300,000 offer was communicated to his attorneys, he should still be entitled to relief pursuant to Rule 60(b)(6) because “the parties were in a difficult situation” concerning settlement in light of the rehabilitation proceedings regarding Legion. In other words, Henry argues that he should be allowed to set aside the $750,000 settlement offer he accepted because of the difficult financial circumstance confronting the parties in 2002 and because he has been unable to enforce that settlement so as to obtain the monetary result he desired (apparently being under the impression that LIGA will then make some more definite and acceptable settlement offer). It is well settled, however, that ‘“Rule 60(b)(6) [cannot] be used “for the purpose of relieving a party from the free, calculated, and deliberate choices he has made.” ’ ” See Ex parte Wal-Mart Stores, Inc., 725 So.2d 279, 285 (Ala.1998) (quoting Chambers County Comm’rs v. Walker, 459 So.2d 861, 866 (Ala.1984), quoting in turn 11 C. Wright & A. Miller, Federal Practice & Procedure § 2864, at 214-15 (1973)).

Conclusion

In light of the foregoing, A & B and Allemang’s petition for the writ of mandamus is due to be and is hereby granted. The trial court is directed to vacate its order granting Henry’s Rule 60(b), Ala. R. Civ. P., motion and to enter an order denying the motion.

PETITION GRANTED; WRIT ISSUED.

SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

COBB, C.J., concurs in the result.

      . The April 2002 order that placed Legion in receivership appointed the insurance commissioner of Pennsylvania as Legion's "Rehabili-tator,” and it directed the Rehabilitator "to take immediate possession of [Legion's] property, business and affairs ... and to take such action as the nature of this case and the interests of the policyholders, creditors, or the public may require.” The order also states, in part:
      "No judgment, order or arbitration award against Legion or an insured of Legion entered after the date of filing of the Petition for Rehabilitation and no judgment, order or arbitration award against Legion or an insured of Legion entered at any time by default or collusion need be considered as evidence of liability or quantum of damages by the Rehabilitator.”

      . In Henry’s appellate brief, he admits that at the time of the settlement discussions "Legion ... had essentially withdrawn from providing any meaningful defense for” A & B and Al-lemang and that A & B and Allemang "were obviously concerned about the fact that Legion’s ongoing financial problems had prejudiced the defense of the case.”

      . The materials before us reveal that A & B was a Louisiana corporation; it does not otherwise address the relationship between Legion and LIGA upon which LIGA’s alleged liability is based.

      . Section 27-23-1 states:
      "As to every contract of insurance made between an insurer and any insured by which such insured is insured against loss or damage on account of the bodily injury or death by accident of any person for which loss or damage such insured is responsible, whenever a loss occurs on account of a casualty covered by such contract of insurance, the liability of the insurer shall become absolute and the payment of the loss shall not depend upon the satisfaction by the insured of a final judgment against him for loss, or damage or death occasioned by the casualty. No such contract of insurance shall be cancelled or annulled by any agreement between die insurer and the insured after the .insured has become responsible for such loss or damage, and any such cancellation or annulment shall be void.”
      According to Henry's appellate brief, his "direct action” against LIGA has been stayed pending this Court's resolution of die present mandamus petition.

      . Based on the materials before us, it appears that Carey’s deposition took place on November 30, 2005.

      . A & B and Allemang did not argue to the trial court that relief under Rule 60(b)(6) was inappropriate because some other provision of Rule 60(b) applied. On appeal, they make a one-sentence argument, without citing any authority, that Henry’s motion "should have been a Rule 60(b)(2) motion for newly discovered evidence” if "he did not become aware of the $300,000 offer until November 30, 2005, at the deposition of Legion adjuster Tom Carey," and, consequently, that "such motion must have been made not more than four months after the proceeding.” We therefore do not address this issue.

      . A more fundamental issue than that discussed in the text would be whether an insurer or an insured has an underlying duty to a plaintiff to communicate a settlement offer (1) that the insurer and insured have discussed among themselves and/or (2) that the insurer or the insured has decided it is willing to make to the plaintiff. The petitioners in this case make no argument to this Court in that regard, however, and our opinion therefore does not address this issue.

      . Henry ultimately recovered $35,000 in uninsured-motorist insurance proceeds.

      . A & B and Allemang also contend that the trial court should have denied Henry’s Rule 60(b)(6) motion (1) because it was untimely filed and (2) because of the application of the doctrine of laches. Because of our disposition of this petition as discussed above, we pretermit any discussion of these additional grounds.