Sherman v. Rose

This appeal must be dismissed because of the failure of Jesse Junior Sherman and Doris Maye Sherman (Shermans) to file a notice of appeal within thirty days from the entry of the Order Granting Summary Judgment. In response to a contention by P.J. Rose (Rose) that this Court lacks jurisdiction, the Shermans rely upon a motion to reconsider order granting plaintiffs motion for summary judgment, filed in the district court, as tolling the time within which the notice of appeal was required to be filed. We hold that a motion to reconsider a decision must be the functional equivalent of a motion to alter or amend - Page 720 the judgment for the period for filing a notice of appeal to be tolled. Unless such a motion serves to demonstrate an intervening change in controlling law, new evidence not available at the time of the original hearing, or the need to correct a clear error of law or prevent a manifest injustice, the motion to reconsider will not serve as the functional equivalent of a motion to alter or amend the judgment. The motion to reconsider order granting plaintiffs motion for summary judgment, filed in this case, did not serve as the functional equivalent of a motion to alter or amend the judgment, and the appeal must be dismissed because the Notice of Appeal was filed more than thirty days after the entry of the Order Granting Summary Judgment.