Sabal Corporation v. Shelby Howell
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-00423-COA
SABAL CORPORATION
APPELLANT
v.
SHELBY HOWELL
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
7/23/2001
HON. FRANK G. VOLLOR
WARREN COUNTY CIRCUIT COURT
JAMES L. PENLEY
KATHLEEN MARIE FITZGERALD
M. JAMES CHANEY
CIVIL - OTHER
JUDGMENT FOR HOWELL AGAINST SABAL
CORPORATION, GARNISHEE-DEFENDANT.
AFFIRMED - 03/04/2003
BEFORE SOUTHWICK, P.J., LEE AND MYERS, JJ.
MYERS, J., FOR THE COURT:
¶1.
Sabal Corporation (Sabal) sought to have a judgment set aside alleging that the judgment was
procured by fraud, misconduct, and misrepresentation. The motion was denied and Sabal appeals
asserting:
1. THE JUDGMENT AGAINST SABAL SHOULD BE SET ASIDE AS IT WAS
PROCURED BY FRAUD, MISCONDUCT, AND MISREPRESENTATION.
STATEMENT OF THE FACTS
¶2.
Shelby Howell obtained a judgment against Bill Hillman. After trying to collect, Howell submitted
a motion seeking to conduct a debtor examination. Hillman was examined and, according to Hillman, he
was an employee of Sabal and Sabal was the only source of income for Hillman. Howell filed a writ of
garnishment against Sabal. Sabal's president swore by affidavit that Hillman received no remuneration from
Sabal nor was he an employee. Howell contested the affidavit. A hearing was scheduled and reset at least
three different times for the benefit of Sabal. At the hearing, Sabal did not appear but relied on Hillman and
his attorney to handle the matter. Hillman changed his story to say he was an independent contractor
rather than an employee. Sabal is a New Jersey corporation that runs a gravel pit in Mississippi. The
gravel pit had been leased and run by Hillman until he encountered financial difficulties. Sabal took over
the lease and retained Hillman as the manager of the pit. The judge ruled in favor of Howell on July, 23,
2001. Sabal was to pay the amount Hillman owed to Howell. In December, Sabal, after missing the date
to appeal, sought to have the judgment set aside. A hearing was held in February 2002 and the motion was
denied. Sabal perfected this appeal.
LEGAL ANALYSIS
¶3.
The decision to grant relief under Rule 60(b) of the Mississippi Rules of Civil Procedure is a matter
left to the sound discretion of the trial court, and our review is limited to whether there has been an abuse
of that discretion. Accredited Sur. & Cas. Co., Inc. v. Bolles, 535 So. 2d 56, 58 (Miss. 1988);
Stringfellow v. Stringfellow, 451 So. 2d 219, 221 (Miss. 1984). Our role is solely to determine whether
the Rule 60(b) motion for relief from judgment was properly denied. Overbey v. Murray, 569 So. 2d
303, 305 (Miss. 1990). We are not to decide the underlying issues of the judgment.
2
¶4.
Rule 60(b) is for exceptional problems, not for oversights under other procedural rules:
Rule 60(b) is not an escape hatch for lawyers and litigants who had procedural
opportunities afforded under other rules and who without cause failed to pursue those
procedural remedies. Rule 60(b) is designed for the extraordinary, not the commonplace.
Bruce v. Bruce, 587 So. 2d 898, 904 (Miss. 1991). Gross negligence or ignorance of the law is
insufficient. Stringfellow, 451 So. 2d at 221. If fraud on the court is alleged that led to the entry of an
erroneous judgment, that motion must be brought within six months. M.R.C.P. 60(b)(1).
¶5.
The party moving for relief under Rule 60 (b) (1) has an obligation to establish by clear and
convincing evidence the alleged fraud, misrepresentation or other misconduct by an adverse party.
Stringfellow, 451 So. 2d at 221; Rozier v. Ford Motor Co., 573 F.2d 1332, 1337 (5th Cir. 1978). In
order to establish fraud, the movant must show:
(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker's knowledge of its
falsity or ignorance of its truth, (5) his intent that it should be acted on by the person and
in the manner reasonably contemplated, (6) the hearer's ignorance of its falsity, (7) his
reliance on it truth, (8) his right to rely thereon, and (9) his consequent and proximate
injury.
Stringfellow, 451 So. 2d at 221; Gardner v. State, 235 Miss. 119, 130, 108 So. 2d 592, 594 (1959).
CONCLUSION
¶6.
While Hillman may have made misrepresentations, Sabal was adverse to Howell, not Hillman in
this proceeding. Since Rule 60 (b) (1) requires an adverse party to commit the fraud, we hold that the trial
judge properly denied the motion. Sabal had notice and the opportunity to present its version at the
hearing. The hearing was rescheduled several times. It was Sabal's own fault for not attending the hearing
and putting its fate in the hands of Hillman.
¶7.
THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT IS AFFIRMED.
STATUTORY DAMAGES AND INTEREST ARE AWARDED. COSTS OF THIS APPEAL
ARE ASSESSED TO THE APPELLANT.
3
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, CHANDLER AND GRIFFIS, JJ., CONCUR.
4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
