IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2019-CA-00632-COA
HENRY MARQUAR APPELLANT
v.
BRIAN C. SCHWEDA APPELLEE
DATE OF JUDGMENT: 03/12/2019 TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: HENRY MARQUAR (PRO SE) ATTORNEY FOR APPELLEE: DAVID P. SULLIVAN NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: AFFIRMED - 03/16/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE CARLTON, P.J., GREENLEE AND McDONALD, JJ.
CARLTON, P.J., FOR THE COURT:
¶1. Henry Marquar appeals from the Hancock County Circuit Court’s judgment
dismissing his complaint for breach of contract. On appeal, Marquar asserts the following
assignments of error: (1) the trial court erred in refusing to allow Marquar to amend his
complaint to add a party; (2) the trial court erred by holding a bench trial instead of a jury
trial; (3) the trial court improperly transferred venue from Hancock County to Harrison
County with no petition from either party; (4) the trial court erred by failing to hold a pre-trial
conference; (5) the trial court erred in holding a trial despite the failure to set the case on the
trial docket and despite Marquar not receiving all requested discovery; and (6) the trial court
erred in not ordering the record to be supplemented with missing evidence. ¶2. After our review, we find the trial court did not err in dismissing Marquar’s case with
prejudice. We therefore affirm the trial court’s judgment.
FACTS
¶3. Marquar filed a complaint for breach of contract against Brian Schweda, in his
individual capacity. Marquar alleged that he and Schweda entered into an agreement for
Schweda to purchase Marquar’s metal recycling and auto salvage parts business, Gulf Coast
Recyclers LLC (Gulf Coast Recyclers). In his complaint, Marquar set forth the alleged terms
of the agreement; namely, that Schweda agreed to lease Marquar’s property for the amount
of $2,000 per month and agreed to purchase Marquar’s business license for $20,000.
Marquar claimed that he prepared a standard lease and purchase contract that detailed the
entire agreement. However, Marquar admitted in the complaint that Schweda never
reviewed or signed the written agreement. Marquar attached a document titled “Commercial
Lease Agreement” to his complaint as Exhibit A. This agreement was dated June 1, 2014.
The agreement was not signed by Marquar or Schweda.
¶4. Marquar alleged that Schweda began operating his business on Marquar’s property
in June 2014. Marquar claimed that during the ten-month period that Schweda operated this
business, Schweda used Marquar’s Hancock County business permit and Marquar’s property,
but Schweda never made any payments to Marquar. Marquar stated that Schweda agreed to
install a seventy-foot truck scale at his own expense, and Schweda brought in an excavator
to help with digging the foundation. However, Marquar claimed that Schweda refused to
2 complete the installation of the truck scale. Marquar stated that Schweda closed his business
without any notice to Marquar. As a result, Marquar filed a number of liens on the scale and
excavator. In his complaint, Marquar sought the following damages: $20,000 plus 8%
interest for use of his scrap metal license; $48,000 plus 8% interest for 24 months of rent;
$15,000 to complete or remove the truck scale; $10,000 for the use of Marquar’s scale and
forklift; $2,000 to repair damage to the building caused by one of Schweda’s drivers; $8,000
to repair damage to a slab; and an undetermined amount to remove contaminated soil.
¶5. Schweda filed his amended answer and counterclaim1 on December 16, 2015.
Schweda asserted that Marquar “failed to perform conditions precedent for the lease” and
that no written lease agreement was ever executed between the parties. He alleged that
Marquar wrongfully converted Schweda’s excavator and caused damage to it. Schweda also
alleged that Marquar damaged the truck scale, leaving Schweda unable to operate the scale
or operate his business.
¶6. On January 27, 2016, Marquar filed a “motion for leave to amend his complaint
pursuant to [Mississippi Rule of Civil Procedure] 15(a), [Mississippi Rule of Civil
Procedure] 20(a) and [Mississippi Rule of Civil Procedure] 15(d).” In his motion, Marquar
requested permission “to add Stella Pierson as a plaintiff to [the] action” pursuant to Rule
20(a). Marquar explained that Pierson was his business partner, and she owned half of Gulf
Coast Recyclers until Marquar sold the business to Schweda. Marquar alleged that Pierson
1 Schweda eventually withdrew his counterclaim.
3 “remains unpaid for her half of the sale of the business plus interest since [Schweda] never
remitted the agreed upon sale price of $20,000 for the purchase of the business.”
¶7. On February 3, 2016, the trial court entered an order denying Marquar’s motion as
untimely filed. The trial court explained that pursuant to the August 18, 2015 scheduling
order, all motions to join additional parties had to be filed by September 18, 2015.
¶8. The trial court held a bench trial in the matter on August 10, 2018. At trial, Marquar
claimed that he and Schweda entered into a handshake agreement for the purchase of
Marquar’s property and business license. During cross-examination, Marquar admitted that
he had no lease agreement with Schweda or his business, Quick Recovery of Mississippi
Incorporated (Quick Recovery).
¶9. As for his alleged damages, Marquar introduced one exhibit, a document titled
“Statement.” The document, dated December 1, 2015, is an invoice purportedly from one
of Marquar’s businesses, Southern Auto Salvage, to Schweda’s business, Quick Recovery
of Mississippi Incorporated (“Quick Recovery”). The invoice listed out a total amount of
damages as $198,000 and itemized the alleged damages. However, during cross-
examination, Marquar admitted that he “made up” the rental amount, created numbers, and
put the numbers on the invoice in December 2015, nearly seven months after filing his
complaint. Marquar also admitted that he never presented the invoice to Schweda or anyone
from Quick Recovery prior to filing his complaint.
¶10. At trial, Schweda argued that Marquar was never an owner of Gulf Coast Recyclers,
4 and therefore Marquar lacked standing to file the complaint. During cross-examination,
Schweda presented Marquar with a number of documents regarding the corporate entities
involved in this case. The first exhibit, D-1, showed that Pierson formed Gulf Coast
Recyclers on May 18, 2012. The record reflects that at the time of filing the registration
papers for the company and in subsequent annual reports, Pierson was listed as both the
registered agent and the manager of the LLC, and she was the only person associated with
the entity. Marquar stated that although he viewed himself and Pierson as partners and co-
owners of the business, “there is nothing written down.” Marquar also admitted that
Southern Auto Salvage is not a corporation—just a name he uses for doing business.
Marquar also admitted that he had never incorporated the business or registered the name
Southern Auto Salvage.
¶11. Schweda further argued that Marquar sued the wrong party—instead of suing Quick
Recovery, Marquar filed suit against Schweda as an individual. Marquar admitted that he
did not sue Quick Recovery. Marquar also admitted, and the record confirms, that the
alleged unsigned lease was between Marquar and Schweda, as an individual, and that each
of the liens filed in this case were against Schweda as an individual.
¶12. Pierson also testified at trial. Pierson stated that beginning in 2012, she ran a scrap
business with Marquar. Pierson stated that she and Marquar were business partners and that
she “was . . . a half owner” of Gulf Coast Recyclers. Pierson stated that she thought
Marquar’s name was on the certificate of formation. However, she acknowledged that she
5 did not possess any evidence to support Marquar’s ownership or involvement in Gulf Coast
Recyclers.
¶13. At the conclusion of the trial, Schweda moved for a directed verdict. The trial court
ruled that it would hold the motion in abeyance.
¶14. On February 16, 2019, the trial court entered its findings of fact and conclusions of
law and dismissed Marquar’s case with prejudice.2 The trial court found that Marquar “has
no standing and sued the wrong party,” explaining that Marquar sued Schweda as an
individual, not as Quick Recovery doing business as Gulf Coast Recyclers. The trial court
observed that Schweda took steps to insulate his individual liability in the matter by forming
Quick Recovery and then registering the fictitious name of Gulf Coast Recyclers so that
Quick Recovery could do business as Gulf Coast Recyclers. The trial court stated that the
date of the purported lease was June 1, 2014, and that at that time, Schweda had already
formed Quick Recovery. As a result, “Schweda would not have been the proper party to
enter into the lease agreement and not the proper party to seek relief against.” The trial court
therefore held that Marquar could not recover against Schweda as an individual because a
plaintiff cannot maintain a contract action against someone who is not a party to the action
or in privity with it. (Citing Burns v. Washington Savings, 251 Miss. 789, 171 So. 2d 322,
324 (1965)). The trial court cited to D.P. Holmes Trucking LLC v. Butler, 94 So. 3d 248, 252
(¶11) (Miss. 2012), and clarified that “Marquar simply sued the wrong defendant. . . . This
2 The trial court entered its final judgment on March 12, 2019.
6 is not a case of mistaken identity or a misnomer. Mr. Marquar was aware of Quick Recovery
but chose to sue Schweda individually.”
¶15. The trial court further found that Marquar lacked standing to sue Schweda’s business
on behalf of Gulf Coast Recyclers. The trial court determined that although Marquar claimed
an ownership interest in Gulf Coast Recyclers, “[h]e provided no proof other than his
testimony at trial.” The trial court stated that the only evidence presented as to the ownership
as Gulf Coast Recyclers showed that Pierson was the sole owner. The trial court
acknowledged Marquar’s attempt to join Pierson as a party to the suit, but the trial court held
that Marquar made this attempt “well beyond the deadline.” The trial court stated that
“Pierson is not a party to this suit, nor is Gulf Coast Recyclers the properly named plaintiff.
Neither Pierson nor Gulf Coast Recyclers joined in the claim by Marquar.”
¶16. The trial court also found that Marquar failed to prove the existence of a valid,
enforceable oral contract. The trial court recognized that Marquar, as the party asserting the
breach of contract claim, bore the burden of proving by a preponderance of the evidence “(1)
the existence of a valid and binding contract, . . . (2) that the defendant has broken, or
breached it, and (3) that he or she has been thereby damaged monetarily.” (Quoting Business
Communications Inc. v. Banh, 90 So. 3d 1221, 1224-25 (¶10) (Miss. 2012)). The trial court
held that “[i]n this case, Marquar is resting his entire claim on a handshake between he and
Mr. Schweda. This agreement is simply not enforceable as alleged.” The trial court
determined, “It is clear from the course of conduct of the parties that there was an agreement
7 to do business in the future, contingent on the installation of the scale and the existence a
viable business operation. The evidence shows that these items were conditions before
execution of a written contract.” The trial court stated that Pierson testified and
acknowledged that Quick Recovery lost money and that the scale was never operational. The
trial court reiterated that “[t]he installation of the drive-across scale was a condition
precedent to the contract. As admitted by Marquar and Pierson, the scale was never fully
installed.”
¶17. Finally, the trial court determined that because Marquar sued the wrong party and
lacked standing to sue as Gulf Coast Recyclers and because Marquar failed to show that a
valid, enforceable contract existed, “the issue of damages need not be addressed.”
Nevertheless, the trial court found that Marquar failed to carry his burden to show that he
suffered any damages. The trial court acknowledged that Marquar created invoices and then
filed suit on the invoices; however, the trial court stated that Marquar admitted that he never
gave Schweda any of the invoices. The trial court found that Marquar “offered no actual
proof of damages in this case other than his subjective opinions as to costs and values.”
¶18. The trial court then determined that because Marquar cannot prove any damages, “the
excavator belonging to the non-party Quick Recovery . . . should be released to [Schweda].”
¶19. Marquar appealed from the trial court’s final judgment.
DISCUSSION
¶20. Marquar’s appeal does not specifically attack the trial court’s findings of fact or
8 conclusions of law on the merits. Instead, Marquar centers his assignments of error on the
following procedural issues: (1) the trial court erred in refusing to allow him to join Pierson
as a party; (2) the trial court erred by holding a bench trial instead of a jury trial; (3) the trial
court improperly transferred venue from Hancock County to Harrison County with no
petition from either party; (4) the trial court erred by failing to hold a pre-trial conference;
(5) the trial court erred in holding a trial despite the failure to set the case on the trial docket
or send out a notice of trial and despite Schweda’s failing to provide Marquar with all
requested discovery; and (6) the trial court erred in not ordering the record to be
supplemented with missing evidence. After our review, we find that Marquar’s assignments
of error are waived, procedurally barred, or without merit.
I. Joinder
¶21. Marquar first argues that the trial court erred by refusing to allow him to add Stella
Pierson as a party in the matter. We review cases involving issues of joinder of parties for
an abuse of discretion. Ill. Cent. R.R. Co. v. Gregory, 912 So. 2d 829, 833 (¶5) (Miss. 2005).
¶22. The record reflects that Marquar filed a motion for leave to amend his complaint on
January 27, 2016, seeking to add Pierson as a party on the premise that all persons may join
in an action if they assert the same right to relief. In support of his motion, Marquar cited
to Mississippi Rules of Civil Procedure 15(a), 20(a), and 15(d). Rule 20(a) states, in
pertinent part, that “[a]ll persons may join in one action as plaintiffs if they assert any right
to relief jointly, severally, or in the alternative in respect of or arising out of the same
9 transaction, occurrence, or series of transactions or occurrences, and if any question of law
or fact common to all these persons will arise in the action.” (Emphasis added). However,
the record reflects that Pierson never asserted any right to relief.3
¶23. Furthermore, the record reflects that Marquar filed his motion to amend outside the
time limit set by the trial court’s scheduling order; as a result, the trial court entered an order
denying Marquar’s motion as untimely.4 In its order, the trial court explained that pursuant
to the scheduling order entered on August 18, 2015, “All motions to amend or motions to
join additional parties, if any, shall be filed on or before September 18, 2015.” Marquar filed
his motion to add Pierson as a party on January 27, 2016, well past the deadline for joining
additional parties.
¶24. We recognize that “[o]ur trial judges are afforded considerable discretion in managing
the pre-trial discovery process in their courts, including the entry of scheduling orders setting
out various deadlines to assure orderly pre-trial preparation resulting in timely disposition of
the cases.” Bowie v. Montfort Jones Mem’l Hosp., 861 So. 2d 1037, 1042 (¶14) (Miss.
3 The advisory committee notes to Rule 20 clarify that
Rule 20(a) imposes two specific requisites to the joinder of parties: (1) a right to relief must be asserted by or against each plaintiff or defendant relating to or arising out of the same transaction, occurrence, or the same series of transactions or occurrences; and (2) some question of law or fact common to all the parties will arise in the action. Both of these requirements must be satisfied in order to sustain party joinder under Rule 20(a).
(Emphasis added). 4 Marquar did not attempt to bring an interlocutory appeal on this issue.
10 2003). “Our trial judges also have a right to expect compliance with their orders, and when
parties and/or attorneys fail to adhere to the provisions of these orders, they should be
prepared to do so at their own peril.” Id. After our review, we find that the trial court did
not err in denying Marquar’s motion to add Pierson as a party.
II. Bench Trial
¶25. Marquar also argues that the trial court erred in holding a bench trial instead of a jury
trial. In his brief, Marquar asserts that he “properly demanded a jury trial when filing his
complaint.”
¶26. However, our review of Marquar’s complaint in the record reflects no demand or
request for a jury trial. Additionally, the record contains email correspondence between
Marquar’s counsel, Schweda’s counsel, and the court administrator discussing trial dates.
In the correspondence, Schweda’s counsel stated that he was “agreeable to a bench trial.”5
The correspondence reflects no objection from Marquar’s counsel. In fact, Marquar’s
counsel responded with dates that he was available for trial. Furthermore, the trial transcript
reflects the following dialogue between the trial judge and counsel for the parties at the
commencement of the trial:
5 In his reply brief, Marquar acknowledges this correspondence. However, Marquar argues that “[n]owhere in the record is there one shred of evidence that [I] agreed to a bench trial, because [I] did not.” Marquar appears to mis-read the statement from Schweda’s counsel stating that Schweda was “agreeable to a bench trial.” Our review of the email correspondence reflects that “the Defendant” (Schweda), and not Marquar, was agreeable to a bench trial.
11 THE COURT: We’re here this morning on a bench trial in the first district courthouse by agreement of the parties at the last status conference or motion hearing date, I think it was back in Biloxi in May. So are the parties ready to proceed on behalf of the plaintiff?
[Counsel for Marquar]: We’re ready, Your Honor.
THE COURT: On behalf of the defendant?
[Counsel for Schweda]: Yes, sir, Judge, we’re ready.
THE COURT: Do we need to take up anything pretrial?
[Counsel for Marquar]: I don’t think so, Your Honor, we’re ready to go ahead and proceed.
The trial court stated on the record that the parties agreed to a bench trial, and Marquar’s
counsel did not object to or raise an issue with this statement.
¶27. The Mississippi Supreme Court has held, “When a party fails to demand a jury trial
and proceeds to try the case to the bench, the party, having failed to exercise the jury trial
right in a timely manner, forfeits the right to complain.” Rolison v. Fryar, 204 So. 3d 725,
733 (¶16) (Miss. 2016). Accordingly, we find that Marquar waived his argument as to this
issue on appeal.
III. Venue
¶28. Marquar next argues that the trial court erred by improperly transferring venue from
Hancock County to Harrison County. Marquar maintains that neither party filed a petition
requesting a transfer of venue.
12 ¶29. The record reflects that at no point during the proceedings below did Marquar object
or raise the issue of improper venue. The supreme court has stated that a party may waive
an objection to improper venue by failing to timely raise it. Lewis v. Pagel, 233 So. 3d 740,
747 (¶28) (Miss. 2017); see also U.S. Bancorp v. McMullan, 183 So. 3d 833, 835 (¶10)
(Miss. 2016) (“A party can waive the defense of improper venue in multiple ways. The most
certain is to fail to plead it.”). The record shows that Marquar participated in the litigation
below before raising his venue objection on appeal. Additionally, the record contains email
correspondence from the trial judge’s court administrator providing the dates of the trial
judge’s availability for trial in Hancock County, as well as his availability for trial in
Harrison County. Marquar’s trial counsel responded in an email stating that he was available
for the trial date listed in Harrison County. “Therefore we find that [Marquar] has waived
his objection to venue by litigating in Harrison County.” Lewis, 233 So. 3d at 748 (¶35).
IV. Pre-trial Conference
¶30. Marquar asserts that the trial court erred by failing to hold a pre-trial conference and
failing to set the trial date on the trial docket. Marquar fails to provide any case law in
support of these claims, stating in his brief that no case law could be found addressing these
issues. “Failure to cite relevant authority obviates the appellate court’s obligation to review
such issues.” Arrington v. State, 267 So. 3d 753, 756 (¶9) (Miss. 2019) (internal quotation
marks omitted). We therefore find that Marquar’s arguments regarding these issues are
procedurally barred. Furthermore, the record reflects that Marquar failed to file a motion
13 requesting a pre-trial conference. See M.R.C.P. 16 (“In any action the court may on its own
motion or on the motion of any party, and shall on the motion of all parties, direct the
attorneys for the parties to appear before it at least twenty days before the case is set for trial
for a conference . . . .”).
V. Discovery Issues
¶31. Marquar also claims that the trial court erred by holding a trial despite Schweda’s
failing to provide Marquar with all requested discovery. Marquar maintains that he filed
several discovery-related motions that the trial court failed to rule on, including a motion
requesting an order deeming Marquar’s request for admissions admitted, a motion striking
Schweda’s amended answer for late filing of responses to Marquar’s interrogatories and
requests for admissions, and a motion to compel discovery and for sanctions.
¶32. Rule 2.04 of the Uniform Civil Rules of Circuit and County Court Practice is clear
that the movant possesses the duty to “pursue” a motion or pleading and obtain a ruling by
the trial court. UCRCCC 2.04. The rule further cautions that the “[f]ailure to pursue a
pretrial motion to hearing and decision before trial is deemed an abandonment of that
motion.” Id.; see also Ramsey v. Auburn Univ., 191 So. 3d 102, 112 (¶37) (Miss. 2016)
(“The affirmative duty to obtain a ruling on a motion rests upon the party filing the motion
to follow up his action by bringing it to the attention of the trial court. . . . A motion that is
not ruled upon is presumed abandoned.”). We therefore find that because Marquar failed to
obtain rulings on his motions, “he abandoned his discovery argument” on appeal. Ramsey,
14 191 So. 2d at 112 (¶37).
VI. Deficiencies in the Record
¶33. Finally, Marquar asserts that the trial court erred in not ordering the trial record to be
supplemented with missing evidence. On September 9, 2019, Marquar filed a motion
pursuant to Mississippi Rule of Appellate Procedure 10 requesting that the trial court correct
and supplement the record on appeal.6 Marquar specifically requested the trial court
supplement the record with the complete court calendar for the trial judge, including all
motion hearing dates, pre-trial conference dates, discovery dates, and trial dates. Marquar
stated that he needed this information in order to show the following: “when and by whom
the jury trial was changed to a bench trial[;] [w]hen and by whom the venue was changed[;]
[and] [w]hen and by whom the trial date was set.” Marquar also requested the following:
(1) Schweda’s discovery responses, which Marquar claims he never received; (2) missing
pages from trial exhibit 12, which consisted of the profit and loss statement prepared by
Pierson; and (3) missing pages from trial exhibit 3, which contained the lease agreement.7
¶34. On September 19, 2019, the supreme court entered an order directing the trial court
to “enter an order as to whether the subject documents were before that court in the manner
suggested by Marquar and, if so, supplement the record accordingly.”
6 The record reflects that Marquar first filed this motion, as well as two similar motions, in the trial court. 7 As explained by Schweda, the lease agreement is actually contained in the record as an attachment to Marquar’s complaint.
15 ¶35. On October 10, 2019, the trial court filed its order in response. In the order, the trial
court stated that it “has reviewed the appeal record compiled by the Hancock County Circuit
Clerk and compared it to the documents Marquar describes in his motion. The [c]ourt also
directed its official court reporter to confirm that all exhibits marked and received into
evidence were transferred to the circuit clerk.” As to Marquar’s request for the trial court
calendar, the trial court explained that “no separate court calendar exists.” However, the trial
court stated that “the Court believes that an additional docket sheet should be made part of
the appellate record.” The trial court explained that “[t]his docket sheet was created by the
court administrator using the MEC within Harrison County’s MEC system.” Our review
shows that this document was filed as part of the appellate record on October 17, 2019. This
document reflects that on May 14, 2018, the trial court held a hearing on Marquar’s motion
for sanctions and to dismiss.
¶36. As to Marquar’s request for Schweda’s discovery responses, the trial court explained
that “[b]y rule, the parties do not file their discovery requests or responses with the court
unless made part of a particular pleading,” citing Mississippi Rule of Civil Procedure 5(d).
However, the trial court determined that “[t]he appeal record contains all pleadings, exhibits
to pleadings, orders and all filings received by the Hancock County Circuit Clerk.”
¶37. With regard to Marquar’s request to supplement the record with the missing pages
from trial exhibits 3 and 12, the trial court found that both exhibits were entered into
evidence without objection by Marquar’s counsel. The trial court judge stated that he “has
16 confirmed with the court reporter” that both of these physical exhibits were properly marked
and received into evidence as the entirety of the exhibit. The trial court further stated that
the exhibits were then transferred to the circuit clerk, “and no pages are missing from the trial
exhibit.”
¶38. The trial court next addressed Marquar’s “itemiz[ation of] certain ‘omissions’ of
filings, orders and/or notices on the subject of venue and bench trial.” The trial court
explained that all filed motions were included in the appeal record and that the absence of
any motion with regard to the change of venue or waiving a jury trial “indicates that no such
motion was filed.” The trial court further explained that the August 2018 bench trial was not
set by the trial court; rather, it “only occurred as agreed upon by the lawyers . . . conferring
with each other to secure an agreed upon trial date when the [c]ourt was available.” The trial
court stated that regardless, Marquar’s claim of error regarding the bench trial was
“meritless” because “Marquar was represented by counsel, and the parties had already agreed
to a bench trial.” Additionally, as stated above, at the commencement of the bench trial, the
trial court made an announcement regarding the bench trial, and Marquar’s counsel stated
that he was ready to proceed and had no pre-trial matters to discuss.
¶39. On October 28, 2019, Marquar responded to the trial court’s order and filed another
motion to correct and supplement the record. Marquar claimed that documents were still
missing from the appellate record. In response, the supreme court entered an order
determining that Marquar “essentially seeks reconsideration” of the trial court’s October 10,
17 2019 order, “along with further supplementation and correction of the record.” The supreme
court then remanded the matter to the trial court with instructions to treat Marquar’s motion
as one for reconsideration of the trial court’s October 10, 2019 order “and to determine
whether further supplementation and/or correction of the record is necessary.”
¶40. On December 3, 2019, the trial court entered an order denying Marquar’s motion to
correct or supplement the record. In response to the supreme court’s order, the trial court
treated the motion as a Rule 60(b) motion for reconsideration. The trial court determined that
Marquar failed to meet the requirements of Mississippi Rule of Civil Procedure 60(b),
explaining that “reconsideration under the rule is not appropriate.” The trial court stated that
“Rule 60(b) motions are reserved for ‘exceptional circumstances,’ and a party is not entitled
to relief simply because he is unhappy with a[n] [order]. Moreover, ‘[a] Rule 60(b) motion
should be denied where it is merely an attempt to relitigate a case.’” (Citing McNeese v.
McNeese, 119 So. 3d 264, 272 (Miss. 2013)).
¶41. The trial court determined that Marquar wanted the trial court to expand the trial
record beyond its initial designation by Marquar’s counsel to include documents, docket
entries, discovery materials, and transcripts that either were not designated as part of the
record or did not exist. As to trial exhibits 3 and 12, the trial court explained that “[t]here is
no way for this [c]ourt to include exhibits that are not part of the trial record without
reopening the lawsuit, obtaining additional testimony and allowing plaintiff a partial ‘do
over’ with regard to those exhibits.” The trial court ultimately held that “this [c]ourt is
18 satisfied that all pleadings and documents filed of record, all docket entries and the trial
transcript have been properly transmitted to the supreme court as the properly designated
record on appeal.”
¶42. The record reflects that Marquar did not file a notice of appeal from the trial court’s
December 3, 2019 order denying his motion for reconsideration. As a result, Marquar “is
procedurally barred from appealing these issues due to his failure to preserve the [trial
court’s] denial of his Rule 60(b) motion on appeal.” Howard v. Gunnell, 63 So. 3d 589, 598
(¶18) (Miss. Ct. App. 2011) (citing M.R.A.P. 3(c)); see also Pruett v. Malone, 767 So. 2d
983, 985 (¶10) (Miss. 2000) (“The order denying a motion to reconsider is a final judgment
for purposes of appeal.”). Because “[Marquar] failed to file a timely notice of appeal from
the circuit court’s judgment denying his Rule 60(b) motion, so we lack jurisdiction to review
that judgment.” Canerdy v. Montgomery, 202 So. 3d 627, 633 (¶19) (Miss. Ct. App. 2016).
¶43. After our review, we find the trial court did not err in dismissing Marquar’s case with
¶44. AFFIRMED.
BARNES, C.J., WILSON, P.J., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND SMITH, JJ., CONCUR. EMFINGER, J., NOT PARTICIPATING.