Reprise: Less-than-Diligent Inquiry

February 24, 2017 § 1 Comment

Reprise replays posts from the past that you may find useful today.

DEVIOUS SEARCH AND INQUIRY

July 26, 2012 § 2 Comments

It avails one naught to get a judgment when all the proper parties have not been given notice and an opportunity to defend.

In 2007, Lottie Woods brought an action for adverse possession of family property. She claimed in her complaint that she was the sole and only heir of her uncle Cornelius, and she published process for him, his unknown heirs, and any other person claiming an interest in the property.

It should have been a clue of problems to come when Corenelius, Jr. showed up at the appointed time and produced a birth certificate showing he was Cornelius’s son. But it all seemed to work out because Lottie and Jr. settled the dispute between them, dividing the property.

The only problem with all of the foregoing is that Lottie neglected to make it known that she had four other siblings who could claim an interest in the property. In other words, as Jr.’s appearance foretold, she could hardly be said to be the “sole and only” heir. Her brother Samson and the other siblings filed an objection and separate litigation to correct the matter.

The COA case of Byrd v. Woods, et al., decided June 19, 2012, is where this particular drama was played out. The case goes off on several other points of law, but the one that I want to focus on here is what happens when a party does not comply with MRCP 4’s requirement that there be diligent search and inquiry before process by publication. Here is what Judge Fair had to say about it, commencing at ¶14:

Mississippi Rule of Civil Procedure 4(c)(4) states that if a defendant cannot be found after diligent search and inquiry, shown by sworn complaint or filed affidavit, he may be made a party by publication. In the 2007 adverse possession action, Lottie filed an affidavit of diligent search and inquiry to obtain a publication summons. However, she must have known that her brother (and her other siblings) would have an interest in the “family land” she sought to adversely possess. They were both potential heirs of Cornelius and believed the property belonged to their family. Further, Lottie and Samson were not estranged, so it is unlikely she could not find him after diligent search and inquiry. But Lottie did not serve Samson personally, nor did she mention or serve her other three siblings.

“The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (¶16) (Miss. Ct. App. 2002). In Caldwell v. Caldwell, 533 So. 2d 413 (Miss. 1988), the supreme court stated “if at any stage of the proceedings it appears that . . . the affidavit was not made in good faith after diligent inquiry, under the facts of the particular case, the process should be quashed by the court . . . .” Id. at 416.

Therefore, Lottie did not obtain service of process on Samson by publication because her affidavit was not made in good faith after diligent inquiry. Neither he nor Lottie’s other siblings are bound by the 2007 judgment.

The lesson here is that when your client avers that he or she has made “diligent inquiry,” or, using the traditional phrase still used by many lawyers, “diligent search and inquiry,” you had better make darned sure that there was indeed a search and inquiry, and that it was in fact diligent. It’s a subject we’ve talked about here before.

Expect the chancellor to inquire behind the affidavit before granting any relief. I always do, and I do not accept a shrug of the shoulders or a couple of half-hearted attempts. In one case before me the woman claimed that the last she knew of her husband he was hanging out at a bar in Wayne County. I asked whether she had gone there to inquire about him. When she said “no,” I ordered her to go to the bar and ask the bartender and some of the habitués whether they knew his whereabouts. Wonder of wonders, she found him and he was personally served.

In the case of Lottie Woods, based solely on what I read in the COA opinion, I would have found that her claim in a pleading intended to influence a judge that she was the sole and only heir when she had living siblings in the area and Cornelius’s son was still alive to have been a fraud on the court. As it was, her “oversight” has cost all of these parties more than five years of wasted time in litigation, and they are returning to the starting line, probably poorer for the trial and appeal attorney fees, and surely not thrilled with the legal process. If only Lottie had sworn truthfully …

A few Comments about Comments

February 22, 2017 § 2 Comments

From time to time I have to reiterate a few points about comments …

  • I welcome comments by lawyers and judges. I enjoy the input, even when it disagrees with or corrects what I post. I’m not infallible, and my point of view is not the only way to see things, so have at it. Add your own insight.
  • Laypersons are free to read this blog, but I limit comments to lawyers and judges. That’s my policy, and I’m sticking to it. Many comments I get from laypeople ask for legal advice, or what to do because their lawyer is not doing a good job, or the judge is against them, or what if this and that. There are lots of blogs and listservs that perform that function. This is not one of them. Mississippi law prohibits me from giving legal advice.
  • As always, all comments are moderated. If yours includes criticism of a sitting judge in a case, don’t expect it to be published.
  • When I use the term “lawyer” here, I mean lawyers and their staffs.

How Many Attorneys Does it Take to …

February 21, 2017 § Leave a comment

… Okay, I’ll spare us all the rest of the joke. But the question does arise from time to time as to how many attorneys can be compensated in an award of attorney’s fees. The oft-heard formula is ” … a fee to compensate one competent attorney …” or words to that effect.

That was one issue in the recent case of Moore v. McDonald, et al., decided by the COA on February 7, 2017. The appellants argued that the chancellor erred by granting attorney’s fees for more than one attorney. The COA rejected the argument in an opinion by Judge Wilson:

¶7. The Moores next assert that the chancellor “erred by assessing attorneys’ fees . . . that cover the costs of more than one attorney.” The Moores argue that Mississippi Supreme Court precedent “clearly sets forth that . . . only a sufficient fee to secure one competent attorney may be granted.” In fact, however, our Supreme Court has rejected this very argument. Coleman & Coleman Enters. Inc. v. Waller Funeral Home, 106 So. 3d 309, 318 (¶27) (Miss. 2012) (“We do not interpret [McKee v. McKee, 418 So. 2d 764 (Miss. 1982),] as having held that attorneys’ fees in Mississippi are limited to the fees of only one lawyer.”); see also Upchurch Plumbing Inc.v. Greenwood Utils. Comm’n, 964 So. 2d 1100, 1116 (¶40) (Miss. 2007) (affirming an award of attorneys’ fees for the work of two attorneys); Mabus v. Mabus, 910 So. 2d 486, 490 (¶13) (Miss. 2005) (same). The Moores do not identify any duplicative time entries or excessive charges. They make only a broad argument that fees for the work of more than one attorney are not recoverable. This argument is contrary to Supreme Court precedent and thus without merit.

You may well question how the above squares with the express language of McKee, wherein the Supreme Court stated, “In determining an appropriate amount of attorneys fees, a sum sufficient to secure one competent attorney is the criterion by which we are directed. Rees v. Rees, 188 Miss. 256, 194 So. 750 (1940).” Well, if you read the Mabus case, cited above, you will see that the MSSC said that the “one competent attorney” language is more about non-duplication than about the number of attorneys involved to produce the result.

You are going to see more of this Moore case in some future posts. Not only is the fact situation interesting, but so are the observations of the chancellor and some of the other holdings.

February 20, 2017 § Leave a comment

State Holiday

Courthouse closed

Franklin Church

February 17, 2017 § 3 Comments

Franklin is a once-thriving community in Holmes County. Settlers, primarily from South Carolina and Virginia, arrived in the area in the early 1830’s, soon after it was ceded by the Choctaws. They developed cotton plantations worked by the slaves they had brought with them.

Still standing is the church built east of Franklin in 1841 with slave labor.

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The church has two front doors, one of which is obscured by a tree in the picture above. Originally, one door was used by men, the other by women.

The cemetery behind the church is filled with graves of the early settlers, many of whom had been born in the 1700’s. Many of the tombstones remark that the decedent was from the Abbeville District in South Carolina.

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The photo below shows the gravestone of Benjamin W. Russell, who immigrated to the area from North Carolina two years before his death in 1857 at only 21 years of age. The intriguing inscription recites his tragic history, which sounds like treachery in a business deal, and perhaps a duel: “Here lies entombed an honest man whose courage forced him from a distant land, by fortune’s wheel untimely thrown, this grave bespeaks his solemn moan. Let youth in future great caution take, and never join in business for fortune’s sake, for hearts today in manly friendship beat, tomorrow in a warlike attitude may meet.”
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In the waning days of the Civil War, on January 2, 1865, only three months before Lee’s surrender at Appomattox, 1,100 Confederate Home Guards led by General Wirt Adams attacked a column of 3,300 mounted federal troops near the church. The union forces included some of the Second U.S. Colored Cavalry, which consisted of black men recruited from Mississippi, according to a nearby Historical Marker. The battle resulted in heavy Confederate losses, and many were taken prisoner. None of the soldiers who died there are buried in this cemetery; at least none is so noted. Some sources state that the church still bears bulletholes from the clash, but none were visible to us when we visited recently. The historical marker incorrectly states that the battle was part of Grierson’s Raid, but that action actually took place in 1863, and Grierson’s force, which numbered only 1,700 men, did not come near Franklin.

So, who were these people? Who were the farmers, the slaves, the shopkeepers, blacksmiths, homemakers, the soldiers, cavalrymen? What did they hold dear, and what did they care nothing about? What filled their days? What did they dream about? What were their stories? What did they leave behind to mark their time on earth other than tombstones?

There are many communities in Mississippi in decline and on the way to their own extinction. It’s hard to grasp how places that were once so vital, pulsing with the lives and endeavors of people, can simply wither away and return to wilderness, but they do. It’s a sort of cultural entropy. Franklin reminds us that what can seem so important and even critical to us today will be forgotten and faded to nothing over time. Sic transit gloria mundi.

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Now This is the Way to Instruct a Jury

February 16, 2017 § 2 Comments

Justice can be pretty complicated today, what with mass torts, experts, voluminous discovery, digital information, and on and on. One of the banes of the judicial process is how to properly instruct the jury so as to avoid error and expensive reversal.

It wasn’t always this way. In a jury trial involving the death of a doctor’s horse in Butler County, Ohio, in 1905, Judge Squire Sprigg instructed the jury as follows:

Gentlemen of the Jury: This is a hoss case. We make quick work of hoss cases in this court. These people killed Doc’s old hoss; if Doc’s hoss was worth anything, then he is entitled to recover; if he wasn’t worth anything, then he ain’t. Some hosses are worth something and a good many more are worth nothing. So, it is for you to say, whether this hoss was worth anything or not. You are to be governed by the preponderance of testimony. Preponderance is a big word, which I must explain to you. It means this: If one side has fifty witnesses and you think they are all liars, and the other side has one witness, and you don’t think he is a liar, or at least as big a liar as the other fifty, then the testimony of the one will preponderate over that of the others, and will knock the socks off of the other fifty. Now, if by a preponderance of the testimony, as I have explained it to you, you think the Doc’s old hoss was worth anything, find what that is and give it to him; if you think he was worth nothing, why say so. Doc will think this is pretty hard on the medical profession, but he will have to take the medicine which the law prescribes. The law provides for just such cases; it calls this damnum absque injuria, which means, as I interpret it, that a man is usually hurt a damned sight less than he thinks he is.

Now, gentlemen, I believe I have covered the whole case. You have heard the evidence and the law as I have given it to you. Remember that you are under oath in this business and that the court expects quick verdicts, especially in hoss cases.

[Note: lest anyone get too bent out of shape, back then only men were allowed to serve on juries. That’s just the way it was.]

Doc won the case.

We don’t have many jury trials in chancery, but when we do, for some reason, the law has limited them to will contests, which can involve undue influence, competency, outright fraud, and other issues that can rank among the most complicated concepts in the law. So instructing the jury about those kinds of concepts can present quite a challenge.

I’m not advocating a return to a Judge Spriggs-esque form of jury instruction, but there is some charm in simplicity, isn’t there?

Thanks to Futility Closet.

Revenge of the Missing Link

February 14, 2017 § Leave a comment

“Heir property” is an often-heard term in Mississippi, used to describe the convoluted and sometimes impossibly complicated ownership of real property that has passed through several generations without administration of an estate or probate of a will.

Walter and Ressie Quinn inherited an interest in some property from Walter’s mother. Although most of the siblings quitclaimed their interests to the Quinns, one sibling quitclaimed her interest to Jessie and Arma Morton. The Quinns filed suit against Arma for partition of the property. They did not join Jessie.

When Arma filed her answer she did not include a defense of failure to join a necessary and indispensable party (R12(h)(2)).

The court ordered a sale of the property, which took place on the courthouse steps on September 29, 2014. When it came time to confirm the sale, Arma raised for the first time that the sale was invalid for failure to join Jessie as a party. So the Quinns filed an amended pleading adding Jessie as a party, and the Mortons waived process and filed an answer. At a final hearing, it was discussed that, although Jessie objected to a sale, he declined to testify.

Following court proceedings, the judge signed a judgment confirming the sale and finding that Jessie had failed to show that he had been prejudiced in any way by the sale. The judgment also found that Jessie had failed to show prejudice because Arma had failed to raise a R12(h)(2) defense. Arma and Jessie appealed.

In Morton v. Quinn, handed down December 13, 2016, the COA reversed and remanded. Judge James wrote for the majority:

¶10. Since the first issue is dispositive, we decline to address the other issue on appeal. “[T]he decision of a trial judge will stand ‘unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.’” Ashmore v. Miss. Auth. on Educ. Television, 148 So. 3d 977, 983 (¶17) (Miss. 2014) (quoting Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 34 (¶4) (Miss. 2003)). After the amended petition was filed, adding Jessie as a respondent, the sale was not vacated, and Jessie was not given a chance to meaningfully participate in the disposition of his property. Jessie favored a partition in kind rather than a sale, yet he was not afforded the opportunity to respond to the Quinns’ request for a judicial sale.

¶11. Mississippi Code Annotated section 11-21-11 (Rev. 2004) permits a judicial partition by sale only where: “[A] sale of the lands, or any part thereof, will better promote the interest of all parties than a partition in kind, or if the court be satisfied that an equal division cannot be made.” At the hearing to confirm the judicial sale, the Quinns asserted that Jessie had to illustrate that the omission of his name as a respondent resulted in prejudice. The trial court afforded him with an opportunity to testify as to any prejudice that he may have incurred. Jessie declined to testify but asserted that he was prejudiced by the sale since he preferred a partition in kind. Moreover, the record shows that Jessie lived on the property, and that the sale would directly affect the location of his patio and other fixtures. Since the disposition of the land directly impacted Jessie’s rights to the subject property, the judicial sale should have been vacated.

¶12. In Shaw v. Shaw, 603 So. 2d 287, 294 (Miss. 1992), the Mississippi Supreme Court held, “While the question of joinder of an absent person generally must be timely raised in the trial court, an appellate court may consider the issue even though it was not initially raised below, and may do so sua sponte.” In the present case, the nonjoinder was raised, but it was not properly raised by the filing of a motion. However, Jessie did raise the matter at the hearing to confirm the sale, which sufficiently preserved the matter on appeal. “Rule 12(h)(2) of the Mississippi Rules of Civil Procedure requires [parties] to raise the issue of failure to join a necessary and indispensable party in the pleadings under [Mississippi ] Rule [of Civil Procedure] 7(a) or by motion for judgment on the pleadings or at the trial on the merits.” Marathon Asset Mgmt. LLC v. Otto, 977 So. 2d 1241, 1246 (¶14) (Miss. Ct. App. 2008).

¶13. The supreme court has noted that “parties whose rights are to be affected are entitled to be heard . . . . Furthermore, they must be notified in a manner and at a time that is meaningful.” Aldridge v. Aldridge, 527 So. 2d 96, 98 (Miss. 1988) (internal citations omitted). Jessie was not properly noticed or added as a respondent until a year after the matter was initiated. Once the Quinns filed their second amended petition for a judicial sale, naming Jessie as a respondent, the sale of the subject property should have been vacated and renoticed for a proper sale, involving all parties if Jessie’s in-kind partition did not materialize. Nevertheless, the court presumed that since Jessie and Arma were husband and wife, Jessie had knowledge of the actions regardless of his omission as a respondent in the matter. We find that presumption was in error.

Several lessons in this:

  • The COA has made clear in many cases, including this one, that the mere fact that you know about litigation does not confer jurisdiction over you.
  • When Jessie finally awoke and decided to participate, I guess he should have been more forceful in asserting his objection to the sale.
  • I would have affirmed, because after the amended complaint was filed Jessie was given the opportunity to object and even to testify in opposition to the sale at the confirmation hearing, but he declined. As a trial judge, one often wonders how far we have to go to accommodate people who simply will not protect themselves even when they have the means to do so.
  • When you have litigation involving “heir property,” jump through every hoop and go to extra trouble to discover and get process on everyone who has or claims to have an interest in the property. That extra attention may avoid big headaches later.

Lump Sum Alimony and Child Support

February 13, 2017 § Leave a comment

When Suzann and Greg Davis went to court on modification issues, the chancellor ruled that Suzann had to pay Greg a sum of child support. In calculating the amount, the chancellor included lump-sum alimony payments she was receiving as part of her adjusted gross income. Suzann appealed.

In the case of Davis v. Davis, decided January 24, 2017, the COA affirmed.

¶13. Suzann also argues that the chancellor erred in including lump-sum alimony as part of her income when calculating her child-support obligation, because lump-sum alimony is not the type of alimony contemplated in the statute. [Fn 1] She points to Neville v. Neville, 734 So. 2d 352 (Miss. Ct. App. 1999), and Dickerson v. Dickerson, 34 So. 3d 637 (Miss. Ct. App. 2010), to support her argument. In Neville, this Court held that lump-sum alimony payable in installments is not “‘alimony’ necessarily includable” when calculating a parent’s adjusted gross income. Neville, 734 So. 3d at 359 (¶31). In Dickerson, this Court simply detailed the connection between lump-sum alimony and the division of property. Dickerson, 34 So. 3d at 645 (¶32). Neither of these cases prohibits a chancellor from considering lump-sum alimony as income under section 43-19-101(3)(a). Thus, we find that a chancellor retains the discretion to classify lump-sum alimony as income when calculating child support. We find no abuse of discretion in the present case.

[Fn 1] Section 43-19-101(3)(a) provides that alimony is a potential source of income that may be considered when determining a parent’s adjusted gross income.

Not much to comment on. I thought this was something useful to have in your arsenal when you have a similar case.

Dispatches from the Farthest Outposts of Civilization

February 10, 2017 § Leave a comment

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Squatter’s Rights = No Rights

February 9, 2017 § Leave a comment

In February, 2009, Acey Huey deeded property he owned in a subdivision to his daughter, Fillisa.

On August 7, 2009, Acey signed off on a document entitled, “Repairing and Renting Agreement.” Acey and his brother Tom were named in the document as “Landlords,” and Tom’s daughter, Tommie, was denominated as “Tenant,” of the same property that had been conveyed to Fillisa. The agreement, which was prepared by Tommie’s godmother, provided in part: Tommie would pay rent of $150 per month and repair the property at her sole expense; the Landlords could not raise her rent or evict her without cause; if forced to leave for any reason she would be reimbursed for the labor and material she expended on the property, and for moving expenses and “pain and suffering.”

Filisa did not become aware of the agreement until 2012. In June of that year, she sent Tommie notice to pay rent or vacate, demanding $400 a month in rent, plus a $400 security deposit.

On July 25, 2012, Filisa conveyed the property to LeMorris Strong.

On July 27, 2012, the 2009 “Repairing and Renting Agreement” was filed in the county’s lis pendens records, attached to a “Notice of Subordination, Attornment and Non-Disturbance Agreement.”

On August 14, 2012 Strong recorded his deed from Filisa.

In November, 2012, Strong made written demand for Tommie to cancel the lis pendens notice, including a form to do so, as well as a copy of Mississippi’s Litigation Accountability Act (LAA), MCA 11-55-5.

In 2013, after Tommie had vacated the property, Strong filed suit to remove clouds from and quiet title to the property. Tommie counterclaimed. The chancellor granted Strong the relief he requested, and dismissed Tommie’s counterclaim. She also awarded Strong $3,917.14 in attorney’s fees and costs, ruling that the filing of the lis pendens notice and refusal to withdraw it constituted a violation of the LAA.

In Huey v. Strong, decided December 13, 2016, the COA affirmed with a unanimous opinion by Judge Fair, James not participating.

You can read the opinion for yourself. The point I want to make here is that you need to stop and think before you leap. I don’t know who filed that lis pendens notice for Tommie, but I hope it was the godmother who prepared the original agreement, and not an attorney. When you file a lis pendens notice you may be slandering title unless what you have filed is true, accurate, and has a basis in law. Tommie had a chance to withdraw it but did not, which ended up costing her nearly $4,000 she does not have, judging from the recitation of facts in this case. Here the COA holds that filing a false lis pendens notice can be a violation of the LAA. Damages were relatively small in this case, but they could have been huge.

Years ago, as a young lawyer (and before there was an LAA), a breathless client demanded that I file a mechanic’s lien notice against a subdivision developer only to learn soon after that the client had misrepresented the facts to me, and wanted it done as a vendetta because the developer had elected to begin using another contractor. I notified the client that I was withdrawing the lien and he could file one or anything else in his own right, but that I was not going to participate. My bad for leaping before looking and demanding some documentation or proof of the claim. Had that lien notice botched a sale, I might have been on the hook with my client for damages.