IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-CA-00903-SCT

BETTY JANE BRINEY, THE SUCCESSOR

ADMINISTRATRIX OF THE ESTATE OF JOY MARIE

MANUEL, DECEASED

v.

UNITED STATES FIDELITY & GUARANTY

COMPANY

DATE OF JUDGMENT: 07/16/96

TRIAL JUDGE: HON. ROBERT LEWIS GIBBS

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: JOHN ROBERT WHITE

ATTORNEYS FOR APPELLEE: KIMBERLY R. HERRING

THOMAS Y. PAGE

NATURE OF THE CASE: CIVIL - WRONGFUL DEATH

DISPOSITION: REVERSED AND REMANDED - 6/4/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 6/25/98

EN BANC.

SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:

¶1. The Hinds County Circuit Court denied a Motion To Vacate Order Allocating Settlement

Amounts brought by Betty Briney, the Successor Administratrix of the estate of Joy Manuel, based

on the finding that the motion was not made within a reasonable time. To the contrary, we find that

the motion was made within a reasonable time and Rule 60(b)(6) provides the authority for us to

reverse and remand the denial of Briney's motion to vacate the Order in order to promote the ends of

justice.

¶2. The Order Briney is seeking to have vacated resulted from a personal injury claim and a wrongful

death action brought on behalf of Joy Manuel who died as a result of a motor vehicle accident on

March 1, 1990, in Terry, Mississippi. Both Joy and Donald Manuel were residents of the State of

California. The presumed husband of Joy, Donald Manuel, brought an action seeking damages for his

own personal injuries and for his wife's wrongful death resulting from the accident. After discovery
was conducted, a question arose about the validity of Donald and Joy's marriage and a motion for

partial summary judgment was filed by both defendants raising this issue. After an estate was opened

for Joy Manuel with a County Administrator appointed as Administratrix of her estate, the complaint

was amended on July 2, 1992, and filed by both Donald and Joan Salter, the Administratrix of Joy's

estate.

¶3. During the pendency of the litigation, United States Fidelity & Guaranty Co. (hereafter USF&G),

the worker's compensation insurer of Hawkeye Refrigerated Service Corp., the employer of Donald

and Joy at the time of the accident, filed a notice of lien under Iowa Code Section 85.22 for

compensation and death benefits that were paid to Donald. It was established that USF&G had paid

Donald $117,930.00 in compensation benefits and $38,866.34 in death benefits as Joy's surviving

spouse. An Order permitting USF&G to intervene in the suit was signed on April 6, 1993, and

USF&G filed its complaint on May 5, 1993, seeking to exercise its lien for workers' compensation

benefits paid under Iowa law.

¶4. On the morning of trial on May 10, 1993, one of the defendants, Lavergne Transport, Inc,

announced it had reached a settlement in the amount of $40,000 and on the morning of the fourth day

of trial the plaintiffs, Donald and Salter, informed the court that they had agreed to settle the case

with the other defendant, Geiselbreth, for the total sum of $150,000. On August 11, 1993, the

Chancery Court of Hinds County, Mississippi, entered an Order approving the settlement of the

doubtful claim for the wrongful death of Joy Manuel. Salter was ordered to request the circuit court

to allocate an appropriate amount of settlement funds to Joy's estate. She was further ordered to

receive the funds from the registry of the Circuit Court and hold funds until further order by the

chancery court concerning the distribution of the funds. On November 24, 1993, the circuit court

entered its Order Allocating Settlement Amount which is summarized in the following chart.

SETTLEMENT TO DONALD MANUEL TO ESTATE OF JOY MANUEL

LAVERGNE $20,000.00 $ 20,000.00

GEISELBRETH $50,000.00 $100,000.00

$70,000.00 $120,000.00

DISTRIBUTION TO DONALD MANUEL TO ESTATE OF JOY MANUEL

$70,000.00 $120,000.00

Attorneys' Fees -28,000.00 - 48,000.00

Expenses -11,628.59 - 7,949.67

$30,371.41 $64,050.33

TO: USF&G -30,371.41 -38,866.34

00.00 $25,866.34
The balance of $25,866.34 was paid into the registry of the Hinds County Chancery Court and

process was issued to Donald, Joy's father, mother, sisters, and brothers for a determination of Joy's

rightful heirs.

¶5. The case to determine Joy's rightful heirs for purposes of determining who is entitled to the

proceeds of the wrongful death settlement was tried on May 30, 1995. The case resulted in an order

that determined that the marriage between Joy and Donald was void ab initio because Joy had still

been legally married to James Anderson at the time of her marriage to Donald, and that Joy Manuel's

sole heirs are Joy's mother, father, and siblings. Subsequently on February 23, 1996, the Chancery

Court issued an Order appointing Joy's mother, Betty Briney, as Successor Administratrix to the

estate of Joy Manuel. On March 6, 1996, Briney filed her motion in the Circuit Court of Hinds

County, Mississippi to vacate the Order Allocating Settlement Amounts that was entered on

November 24, 1993. The motion alleged that it was unlawful under Iowa law to allow USF&G to

satisfy a portion of its lien against Donald Manuel by paying USF&G the sum of $38,866.34 from the

proceeds rightfully belonging to the estate of Joy Manuel when the estate never received any money

from USF&G. Instead of deciding whether to vacate the Order based on the merits of the case, Judge

Gibbs found that the motion was controlled by Rule 60(b) of the Mississippi Rules of Civil Procedure

and entered an Order on July 16, 1996, denying Briney's motion finding that it was not timely filed.

The Court specifically stated, "that the Successor Administratrix has shown no basis for a three year

delay in attacking the Order of this Court." Aggrieved of that decision, Briney perfected this appeal.

STATEMENT OF THE LAW

I. MAY USF&G SATISFY ITS SUBROGATION LIEN AGAINST DONALD MANUEL BY

TAKING MONEY FROM JOY MANUEL'S ESTATE, TO WHICH IT NEVER PAID ANY

MONEY?

¶6. Briney argues that under Iowa law, USF&G had no right of subrogation from Joy's estate since

USF&G paid no money to the estate. She argues that the effect of allowing USF&G to take $38,

866.34 from the settlement proceeds allocated to Joy's estate as partial repayment of benefits it paid

to Donald Manuel was to take money away from the rightful heirs who never received any money

from USF&G. USF&G claimed its rights to subrogation under Iowa Code Ann. § 85.22 (West 1996)

. This section in relevant part states:

1. If compensation is paid the employee or dependent or the trustee of such dependent under

this chapter, the employer by whom the same was paid, or the employer's insurer which paid it,

shall be indemnified out of the recovery of damages to the extent of the payment so made . .

.and shall have a lien on the claim for such recovery and the judgment thereon for the

compensation for which the employer or insurer is liable.

Iowa Code Ann. § 85.22 (West 1996) (emphasis supplied). Briney cites to two Iowa Supreme Court

cases which interpret this language. The Iowa Supreme Court held "that the employer's right to

withhold benefits under section 85.22(1) extends only to that portion of the wrongful death proceeds

actually paid or legally available to the person entitled to receive the workers' compensation benefits."

Bertrand v. Sioux City Grain Exch., 419 N.W. 2d 402, 404 (Iowa 1988). The Court went on to

state, "[T]he better rule is that an employer can only reach that portion of a third-party recovery
which the workers' compensation dependent is entitled to receive." Id. at 405. Therefore, the Court

did not allow the employer to reach the part of the recovery that was to go to the deceased's four

children who never actually received any benefits under workers' compensation. The other Iowa case

Briney cites in support of her contention that USF&G was unlawfully allowed to receive money out

of Joy's estate is Mata v. Clarion Farmers Elevator Cooperative, 380 N.W.2d 425 (Iowa 1986).

Although the Mata case interprets a different subsection of Section 85.22 of the Iowa Code, the

Bertrand Court interpreted the Mata decision to indicate that "the employer would have no right to

the portion of the settlement allocable to the wife and child" on the loss of consortion claim.

Bertrand, 419 N.W.2d at 405 (citing Mata v. Clarion Farmers Elevator Coop., 380 N.W.2d 425,

429 (Iowa 1986)). The Mata Court found that a workers' compensation lien is valid as to the portion

of the settlement found allocable to the injured employee. Mata, 380 N.W.2d at 429.

¶7. When considering this case law of the Iowa Supreme Court, it follows that the money received by

USF&G out of the proceeds allocated to Joy's estate for satisfaction of the subrogation lien for the

death benefits paid to Donald was unlawful under controlling Iowa Law. As cited by Briney, 83

C.J.S. Subrogation § 14 (1953) explains that a person entitled to subrogation stands in the shoes of

the one from whom his right to subrogation arose and cannot ascend to any greater right than the one

for whom he is substituted.

¶8. USF&G does not challenge the contention that Iowa law may have been misapplied, but instead it

argues that it was proper to have paid the death benefits to Donald based on the strong presumption

of the validity of a marriage solemnized according to law citing Smith v. Weir, 387 So. 2d 761 (Miss.

1980) and Paschall v. Polk, 379 So. 2d 316 (Miss. 1980). This issue is not in dispute. However,

USF&G does argue that the circuit court is the one who decided how the settlement proceeds were

to be distributed and the estate was represented by a duly appointed Administratrix. It contends that

all parties including the Administratrix had 30 days to appeal the court's Order if they believed the

court's Order was in error but no parties appealed the Order and Joy's heirs cannot argue that the

estate was not represented at the time of the Order. Neither Betty nor Joy's other rightful heirs were

parties to the Circuit Court action, and therefore had no right to appeal. They were entitled to rely

upon the Circuit Court to properly apply the law with regard to the settlement proceeds allocable to

Joy's estate.

¶9. In Briney's reply brief, she argues that at the time the Order was entered, there was no reason for

the Administratrix to appeal because Donald was presumed to be the surviving spouse and sole heir

of Joy's estate. It is also important to note that neither Briney nor any other potential heirs to Joy's

estate were notified by the Court, Donald's attorney or USF&G. According to Briney's affidavit, the

only knowledge Briney had about the pending wrongful death claim was obtained by an insurance

investigator and that Donald told the investigator that he did not know how to contact Joy's family.

Briney also argues that USF&G knew if it did not take the $38,866.34 before the rightful heirs were

adjudicated, it might get nothing from the estate funds once the rightful heirs were determined.

Another important fact this Court considers is that the same counsel who represented Donald also

represented the estate of Joy Manuel, deceased, and could have influenced the decision of the

Administratrix not to appeal. This is especially true when considering the strong presumption that

Donald was Joy's husband, and under Mississippi's wrongful death statute, Section 11-7-13 of the

Mississippi Code of 1972, Donald would be the only person entitled to the estate's proceeds.
¶10. Another concern this Court has is the fact that Joy Manuel had a daughter who was adopted.

This child was in no way informed of the pending litigation nor were her rights protected in any

manner by any party. There is no indication in the record that anyone, including the heirs determined

in the chancery court proceedings, tried to locate this child. In Briney's affidavit she explains that

"Donald Manuel knew that Joy had given up a daughter in adoption. Other family members of my

family know where the child lives, and the address could have been found." However when Salters,

appointed Admistratrix, filed the petition seeking adjudication of the Heirs-at-Law of Joy Manuel the

minor child was listed as adopted at birth, name and address unknown. Also at the time that Salters

was appointed Administratrix, she failed to make the court aware of other potential heirs. Although

this child was adopted, it does not cut off her right of inheritance unless the provisions of the

adoption clearly so state or the law of another state controls this particular issue. Estate of Jones v.

Howell, 687 So. 2d 1171 (Miss. 1996) (right to bring wrongful death action for natural father's death

was not terminated at time of adoption). This Court has held that, "an administratrix is under an

affirmative duty to disclose to this Court the existence of known potential heirs and claimants."

Smith v. Estate of King, 501 So. 2d 1120, 1123 (Miss. 1987).

¶11. As pointed out by Briney, simply because the time for appeal has expired, Rule 60 recognizes

that relief may be sought after the time for appeal has expired given the right circumstances citing

Accredited Surety. & Casualty. Company v. Bolles, 535 So. 2d 56, 58-59 (Miss. 1988).

II. WAS BETTY BRINEY'S RULE 60(b)(6) MOTION TO VACATE THE TRIAL JUDGE'S

NOVEMBER 24, 1993, ORDER MADE WITHIN A REASONABLE TIME?

¶12. Rule 60(b) of the Mississippi Rules of Civil Procedure provides the grounds for which a

judgment or order may be set aside. That rule in pertinent part, reads as follows:

RULE 60. RELIEF FROM JUDGMENT OR ORDER

(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon

such terms as are just, the court may relieve a party or his legal representative from a final

judgment, order, or proceeding for the following reasons:

(2) accident or mistake;

(6) any other reason justifying relief from the judgment.

The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more

than six months after the judgment, order, or proceeding was entered or taken.

Miss.R.Civ.P. 60(b) (emphasis supplied). The Fifth Circuit has held that "this clause's ''any other

reason' language refers to any other reason than those contained in the five enumerated grounds on

which a court may grant a Rule 60(b) motion.'" Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 747

(5th Cir. 1995) (quoting Government Fin. Servs. One Ltd. Partnership v. Peyton Place, Inc., 62

F.3d 767, 773 (5th Cir.1995)). Neither party argues that there is any other authority for vacating the

1993 Order other than Rule 60(b)(6). Relief under Rule 60(b)(6) is reserved for extraordinary and

compelling circumstances. Sartain v. White, 588 So.2d 204, 212 (Miss. 1991); State v. One (1)
Chevrolet Nova Auto., 573 So. 2d 787, 790 (Miss. 1990). This Court has pointed to "this catch-all

[Rule 60(b)(6)] as a 'grand reservoir of equitable power to do justice in a particular case . . . .'"

Burkett v. Burkett, 537 So. 2d 443, 445 (Miss. 1989) (quoting Bryant, Inc. v. Walters, 493 So. 2d

933, 939 (Miss. 1986)); See also Lose v. Illinois Cent. Gulf R.R., 584 So. 2d 1284, 1286 (Miss.

1991).

¶13. Regarding the standard of review this Court must employ when considering the grant or denial

of a 60(b)(6) motion, this Court will not reverse unless convinced that the Circuit Court has abused

its discretion. Burkett, 537 So. 2d at 446. "Generally, consideration of a Rule 60(b) motion requires

that a 'balance . . . be struck between granting a litigant a hearing on the merits with the need and

desire to achieve finality.'" Lose, 584 So. 2d at 1286 (quoting Stringfellow v. Stringfellow, 451 So.

2d 219, 221 (Miss. 1984)).

¶14. Briney correctly points out that Rule 60(b) of the Mississippi Rules of Civil Procedure is almost

exactly the same as the Federal Rule 60(b) and "this court [sic] will consider as authoritative federal

constructions when determining what our construction of our rule ought to be." One (1) Chevrolet

Nova Auto., 573 So. 2d at 789 (citing Stringfellow v. Stringfellow, 451 So. 2d 219, 221 (Miss.

1984)). Therefore, Briney cites to Heirs-at-Law & Beneficiaries of Gilbert v. Dresser Industries,

Inc., 158 F.R.D. 89 (N.D. Miss. 1993) in support of her contention that the point of time from which

reasonableness is judged is the time that the basis for the Rule 60(b) motion becomes known to the

moving party. In that case the district court quoted with approval from Wright & Miller, Federal

Practice & Procedure which offers the following rationale:

What constitutes reasonable time must of necessity depend upon the facts in each individual

case. The Courts consider whether the party opposing the motion has been prejudiced by the

delay in seeking relief and whether the moving party has some good reason for his failure to

take appropriate action sooner.

Heirs-at-Law of Gilbert, 158 F.R.D. at 96 (quoting 11 Wright & Miller, Federal Practice &

Procedure 2866). Briney argues that the point of time from which reasonableness should have been

judged was October 30, 1995, the date the chancery court adjudicated Joy's legal heirs. In Heirs-atLaw of Gilbert, the district court relied in part on the fact that the plaintiffs had continually asserted

what they believed to be the controlling law as to the merits of the case when it held that the Rule

60(b) motion was timely filed although one year and two months had elapsed since the summary

judgment. Id. at 95-96. "Rule 60(b) is not an escape hatch for litigants who had procedural

opportunities afforded under other rules and who without cause failed to pursue those procedural

remedies . . . ." One (1) Chevrolet Nova Auto., 573 So. 2d at 790.

¶15. Briney contends that until the chancery court determined that Donald and Joy's marriage was

void ab initio and therefore Donald was not the rightful heir to Joy's estate, she did not have standing

to intervene or to challenge the November 24, 1993 Order. She argues this is because the top echelon

under the wrongful death statute Miss. Code Ann. § 11-7-13 (Supp. 1997) is reserved for the spouse

and child of the deceased citing Partyka v. Yazoo Dev. Corp., 376 So. 2d 646 (Miss. 1979)

(affirming the trial court's dismissal of a wrongful death action by deceased mother because the wife

survived the husband by thirty minutes and the wife's right as sole heir passed to her estate) and

Fillingame v. Patterson, 704 F. Supp. 702 (S.D. Miss. 1988) (holding that the two natural children,
regardless of previous adoption, were the only people who could bring a wrongful death action,

excluding all other surviving relatives). Therefore, Briney argues that she lacked standing to interfere

or intervene with the wrongful death action filed by Donald, since he was presumed to be the sole

heir and in the top echelon of wrongful death beneficiaries. Briney argues that within two weeks after

she was appointed Successor Administratrix she filed her motion to vacate the settlement order and

the date of her appointment on February 23, 1996, is the date in which the Court should determine

"reasonable time."

¶16. The circuit judge, when denying her motion, specifically found that:

[T]he Successor Administratrix was aware of Don Manuel's prosecution of the action and chose

not to assert her rights at that time. The Final Order was a reflection of the fact that all aspects

of the case were addressed between all parties, including USF&G and the appointed

Administratrix of Joy Manuel's Estate. Furthermore, the new Administratrix testified that she

sought the advice of attorney after she learned of Don Manuel's prosecution of the action, but

her reason for not following up on the issue was because she did not know how to arrange for

an out-of-state attorney.

The Court is of the opinion that the Successor Administratrix has shown no basis for a three

year delay in attacking the Order of this Court.

¶17. USF&G contends that Briney could have petitioned the chancery court to remove Salters as

Administratrix of Joy's estate and appoint herself. This is exactly what happened in Matter of Estate

of Moreland, 537 So. 2d 1337 (Miss. 1989) as cited by USF&G. In Moreland, a mother of a

decedent was originally appointed as Administratrix of her son's estate in order to bring a wrongful

death action. The decedent's ex-wife, who was responsible for the care of the couple's minor child,

petitioned the court to remove the mother and appoint herself instead. The ex-wife was successful in

her petition and she was substituted as the new Administratrix and was allowed to proceed with the

wrongful death action. Moreland, 537 So. 2d at 1341. USF&G further argues that Briney did not

have to wait for Don Manuel to originate the wrongful death proceeding but could have brought it

herself by applying to the chancery court for letters of administration pursuant to § 91-7-63 of the

Mississippi Code of 1972. This argument would be more persuasive if Briney and other potential

heirs were officially notified of the pending wrongful death action and the need for an estate to be

opened in order to maintain the wrongful death cause of action. This was not done. In addition, in

contrast to the facts of the Moreland case, Briney and Joy's other heirs, with the exception of the

adopted child, were not in the top echelon of beneficiaries under Mississippi's wrongful death statute.

Miss. Code Ann. § 11-7-13 (Supp. 1997).

¶18. Briney asserts that in Moreland the mother of the deceased was in the second echelon of

wrongful death beneficiaries and she was removed because the ex-wife was acting on behalf of the

decedent's minor son who is in the top echelon of wrongful death beneficiaries. Briney strongly relies

on the fact that Donald was presumed to be the sole beneficiary in the first echelon of wrongful death

beneficiaries given the presumption that the marriage between Donald and Joy was valid citing

Jeffreys v. Clark, 251 Miss. 129, 149, 168 So. 2d 662 (1964) (holding that "the presumption of the

validity of a marriage solemnized according to law is superior to the presumption of life, and the

presumption arising from a subsequent marriage that a prior marriage has been dissolved is one of the
strongest presumptions known to law and will prevail unless overcome by confident evidence to the

contrary . . . ."), overruled on other grounds by Sheffield v. Sheffield, 405 So. 2d 1314 (Miss. 1981)

. A County Administrator is granted letters of administration when "some person has not applied for

letters testamentary or of administration." Miss. Code Ann. § 91-7-79 (1994). No formal notice was

given to Joy's heirs about the estate until February 9, 1994, after the settlement in the wrongful death

action was final and USF&G had received the funds unlawfully awarded to it. When looking at

Briney's affidavit dated May 3, 1994, Briney knew that shortly after Joy's marriage to Donald that her

prior marriage had not been dissolved, and she also had knowledge of Joy's child who was adopted

by another who shares the top echelon under Mississippi's wrongful death statute. Miss. Code Ann. §

11-7-13 (Supp. 1997). This child also was not informed about the wrongful death action nor was she

informed about the proceeding in chancery court to determine the rightful heirs of Joy Manuel.

¶19. This Court finds that Briney did file her motion to vacate the order within a reasonable time

when she filed her motion eleven days after being substituted as the administratrix of Joy's estate. The

Petition for Appointment of Administratrix was filed June 29, 1992 by Donald's attorney. No notice

was given to Joy's heirs about the estate until February 9, 1994, after the circuit court action had

been concluded. It was not until October 30, 1995, the date the chancery court adjudicated Joy's

legal heirs and determined that Joy's ceremonial marriage to Donald had been void ab initio that Joy

had standing to file her petition.

¶20. Both parties address the factors listed by the United States District Court that should be

considered when deciding if relief should be granted under Rule 60(b). The United States District

Court, set out the following factors:

(1) That final judgments should not lightly be disturbed; (2) that the Rule 60(b) motion is not to

be used as a substitute for appeal; (3) that the rule should be liberally construed in order to

achieve substantial justice; (4) whether the motion was made within a reasonable time; (5)

[relevant only to default judgments]; (6) whether--if the judgment was rendered after a trial on

the merits--the movant had a fair opportunity to present his claim or defense; (7) whether there

are intervening equities that would make it inequitable to grant relief; and (8) any other factors

relevant to the justice of the judgment under attack.

Batts v. Tow-Motor Forklift Co., 153 F.R.D. 103, 109 (N.D. Miss. 1994) (quoting Seven Elves,

Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981)) rev'd, 66 F.3d 743 (5th Cir. 1995) (reversing

because a change in state decisional law after an Erie prediction does not constitute extraordinary

circumstances and cannot by itself allow relief from a final judgment). These factors are consistently

followed. See United States v. Flores, 981 F.2d 231, 237 (5th Cir.1993); Barrs v. Sullivan, 906

F.2d 120, 121 (5th Cir.1990); Picco v. Global Marine Drilling Co., 900 F.2d 846, 849 (5th

Cir.1990); Smith v. Alumax Extrusions, Inc., 868 F.2d 1469, 1471 (5th Cir.1989); Bludworth

Bond Shipyard, Inc. v. M/V Caribbean Wind, 841 F.2d 646, 649 (5th Cir.1988).

¶21. When balancing each of these factors, we find that the action taken by the trial court in the case

at bar was erroneous and is reversed and remanded. Although the 1993 Order was a final judgment

and should not lightly be disturbed, there is nothing light about Briney's request to correct a legal

error that allowed USF&G to wrongfully take $38,866.34 properly belonging to the rightful heirs of

Joy's estate. Although the Administratrix of Joy's estate had every right to appeal the Order if it
believed that the trial court misapplied the controlling law, there was a rebuttable presumption that

Donald was Joy's rightful heir. When considering the facts of this case, Rule 60 is not being used as a

substitute for appeal. There must be a balance between substantial justice and finality of judgments

and substantial justice will only be served if the money rightfully belonging to Joy's heirs is returned

to them. We have already determined that Briney did file her motion within a reasonable time, given

the fact that she did not have standing to challenge the order of the circuit court until she was

appointed the Successor Administratrix. At that time she acted both diligently and promptly in filing

her petition. We are also mindful of the equitable purpose of Rule 60. This Court stated:

We must keep in mind the equitable purpose of Rule 60 as well as the spirit by which

procedural rules must be interpreted. The "primary purpose" of our Rules of Civil Procedure is

to "secure the just . . .determination of every action" and "promote the ends of justice."

Miss.R.Civ.P. 1, Comment.

Accredited Sur. & Cas. Co., 535 So. 2d at 59. Once again we recognize that Rule 60 (b)(6) "stands

as a 'grand reservoir of equitable power to do justice in a particular case when relief is not warranted

by the preceding clauses, or when it is uncertain that one or more of the preceding clauses afford

relief.'" Accredited Sur. & Cas. Co., 535 So. 2d at 60 (quoting Bryant, Inc. v. Walters, 493 So. 2d

933, 939 (Miss. 1986)). In this case, justice cannot be promoted and a just determination of the

action cannot be accomplished by allowing USF&G to keep $38,866.34 to which it is not entitled. As

a result, we find that the lower court erred when it denied the petition seeking to vacate the circuit

court's Order that unlawfully allowed USF&G to satisfy a portion of its subrogation lien against

Donald by taking from the proceeds allocated to Joy's estate when USF&G never paid any money to

Joy's estate.

CONCLUSION

¶22. Briney has a valid argument on the merits of the case concerning USF&G's right to subrogation

against the estate. The trial judge abused his discretion when he denied the motion finding that the

Successor Administratrix showed no basis for a three year delay in attacking the Order. Briney did

file her motion within a reasonable time because the time from which this inquiry begins is the date

that Briney had legal standing to challenge the circuit court's order.

¶23. This is one of those rare cases with most extraordinary circumstances that compels us to find

that the circuit court's order must be vacated.

¶24. REVERSED AND REMANDED.

PRATHER, C.J., PITTMAN, P.J., BANKS, McRAE AND WALLER, JJ., CONCUR. SMITH,

J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ROBERTS AND

MILLS, JJ.

SMITH, JUSTICE, DISSENTING:
¶25. In my view the trial judge did not abuse his discretion in denying the motion of the Successor

Administratrix, Briney, for the reason that no basis for a three year delay in attacking the lower

court's order was shown. Nor, is the case sub judice, rare or extraordinary to warrant vacating the

lower court's order after such a lengthy delay. The bottom line here is simply that Briney did not have

to wait until she was appointed as Successor Administratrix in order to challenge the circuit court's

order. She could have done so long before the final order was entered by the lower court.

¶26. This is exactly what occurred in Estate of Moreland, 537 So. 2d 1337 (Miss. 1989). There, a

decedent's ex-wife, who was solely responsible for the care of the couple's minor child, learned that

the decedent's mother had been appointed Administratrix of her son's estate, so the ex-wife petitioned

the chancery court to have the mother removed as administratrix and was appointed as a substitute by

the chancellor. This Court affirmed the chancellor's actions. Here, Briney clearly could have filed to

be appointed successor administratrix at a much earlier stage rather than waiting until the lower court

concluded that Joy Manuel's marriage to Don Manuel was void. The majority attempts to distinguish

Moreland by claiming that no legal notice was provided to Briney or other relatives of Joy.

However, Briney was fully aware of the events occurring in the case. One need only examine Briney's

affidavit of May 3, 1994, where she admits that shortly after Joy's marriage to Don Manuel that she

knew that Joy's prior marriage had not been dissolved. Briney was also aware of the adoption of Joy's

child by another. Also, Briney's affidavit establishes that she was fully aware of the pendency of this

action and even consulted counsel regarding this issue at a substantial time prior to the conclusion of

the litigation at issue here. She later learned who the attorneys were who were pursuing the litigation.

Briney failed to timely assert her rights, with complete knowledge of the circumstances at hand. A

person may not ignore procedural opportunities afforded under the law, and thereafter, rely upon the

catch all provision of Rule 60 to attempt to challenge an order after the fact. This Court, in State ex

rel. Mississippi Bureau of Narcotics v. One Chevrolet Nova Automobile, 573 So. 2d 787 (Miss.

1990), stated:

Rule 60(b) is not an escape hatch for litigants who had procedural opportunities afforded under

other rules and who without cause failed to pursue those procedural remedies. "Rule 60 (b) is

designed for the extraordinary, not the common place."

One (1) Chevrolet Nova, 573 So. 2d at 790 (citations omitted).

¶27. In my view, there is nothing extraordinary nor uncommon in the case at bar. Briney consulted an

attorney two years prior to the action being concluded by the prior Administratrix and she waited

three years after the final order was entered by the circuit court to ever attempt any action on this

case. She was fully aware of the proceedings as they were filed and progressed. She was even aware

of who the attorneys were representing Don Manuel in the original cause. USF&G had every right to

rely upon the original adminstratrix and the finality of the circuit court's order and to negotiate the

checks issued by the clerk of the circuit court. Three years after the entering of the circuit court order

is too far removed as a reasonable time frame to allow the catch all of Rule 60(b)(6) to be utilized. In

fact, this Court has never allowed such action where such a delayed time frame exists.

¶28. I respectfully dissent.

ROBERTS AND MILLS, JJ., JOIN THIS OPINION.