Coleman v. Dunlap , 303 S.C. 511 ( 1991 )

Cureton, Justice:

(concurring and dissenting).

I concur with those portions of the majority’s opinion which hold the appellant’s motion to vacate was timely and the probate judge erroneously based his ruling on newly discovered evidence. I disagree, however, with the majority’s conclusion that relief under Rule 60(b)(1) on the ground of mistake or inadvertence was available to the appellant.¹1 would affirm the circuit court.

The majority’s analysis of the 60(b)(1) issue is bottomed on the lack of an abuse of discretion by the probate judge based on his ability to make credibility determinations concerning the deposition and affidavit testimony of the witnesses introduced at the hearing. While credibility of witnesses is ordinarily a major consideration of the trier of facts in exercising discretion, it has no relevance here because the evidence was presented by affidavits and depositions. The credit court, therefore, was in basically the same position as the probate judge in making credibility decisions.

It seems to me the basic issue involved in this appeal is whether, as a matter of law, recanted testimony which does not qualify as newly discovered evidence, may provide the basis for relief under Rule 60(b)(1). Essentially, two of the witnesses to the will of Robert Wesley Coleman, Sr., who testified at a November 1987 hearing that the will was improperly executed changed their minds and now claim the will was properly executed. The announced reason for their change of heart is that they were mistaken and confused at the November 1987 hearing.²

This writer has been unable to locate a case which holds a witness’s mistaken or confused testimony qualifies as the type of mistake under Rule 60(b)(1) on which relief may be granted. Appellant cites no case which so holds.

“Despite the liberal language of the Rule, references to its remedial purpose, and the typical deference to the trial court, relief under Rule 60(b)(1), as with its statutory predecessor, S.C. Code Ann. Section 15-27-130 (Law Co-op. 1976), is very difficult to obtain and to sustain on appeal... Courts are extremely reluctant to reopen judgments when the matter has been litigated and lost.” H. Lightsey and J. Flanagan, South Carolina Civil Procedure 399 (1985). “The judgment of a Court of competent jurisdiction, in which the proceedings are regular and in accord with law and the rules of procedure, is the solemn adjudication of that case, and ought not be lightly set aside.” Anderson v. Toledo Scale Co., 192 S.C. 300, 303, 6 S.E. (2d) 465, 466 (1939).

The majority position of the courts on this question is set forth in the Restatement (Second) of Judgments as follows:

[W]hen the judgment has been entered after contest, the claim of mistake usually concerns an issue of the merits actually litigated by the parties and resolved by the court. An application for relief after a contested proceeding therefore partakes of a petition for reconsideration, and all the reasons for finality of judgment are arrayed against such application. Restatement (Second) of Judgments Section 71 comment a (1982).

When mistake is involved [in a contested proceeding] both parties were exposed alike to the inadequacies of information and mishaps in procedure that attend litigation. Moreover, the matter in question was, in most cases, open to discovery by means of investigation that would occur to an attentive mind____Given these considerations against disturbing the judgment in an action that has

been fairly contested, the circumstances are very limited in which such a judgment may be set aside on the ground of mistake. Id.

The requirements concerning due diligence with regard to relief based on mistake are essentially similar to those applicable to relief on the ground of fraud. . . . The requirement that reasonable effort to ascertain the matter in question have been used during the case of action is, in modern procedure, an insuperable barrier to relief except in very unusual cases. . . . Failure to have ascertained matter that could have been uncovered by discovery procedure should preclude relief except when the failure is itself excusable. Id. at comment d.

Consistent with these Restatement comments is the holding that relief from errors resulting from mere carelessness will be denied. 7 J. Moore and J. Lucas, Moore’s Federal Practice Section 60.22[2] at 60-181 (1990); Western Transp. Co. v. E.I. Du Pont De Nemours and Co., 682 F. (2d) 1233 (7th Cir. 1982).

The appellant’s failure to interview witnesses prior to the November 1987 hearing and prepare their testimony is carelessness, plain and simple. It is not the type of mistake, inadvertence, or excusable neglect for which Rule 60(b)(1) relief should be available.

The appellant does not assert the witnesses intentionally committed perjury, however, the perjury comparison is enlightening. Assuming both witnesses had falsely sworn and testified, I do not believe their acts would amount to extrinsic fraud for which relief is available under Rule 60(b). Evans v. Gunter, 294 S.C. 525, 366 S.E. (2d) 44 (Ct. App. 1988); Rycroft v. Tanguay, 279 S.C. 76, 302 S.E. (2d) 327' (1983); Center v. Center, 269 S.C. 367, 237 S.E. (2d) 491 (1977). Because relief is not available under Rule 60(b)(1) for intentional deception, why should unintentional “mistakes” or “confusion” be easier to overcome?

Matters of trial testimony being intrinsic in nature, I would hold relief for such mistakes is not available under Rule 60(b)(1).

1 This case is in a peculiar posture, for not only did the probate judge set aside his prior order, he also, in effect, retried the case and granted judgment for the appellant based solely on the affidavits and depositions.

2 One of the witnesses testified he had not been interviewed or prepared for the hearing.