Biltmore

July 28, 2017 § Leave a comment

Grounds and gardens in Asheville, North Carolina

 

July 27, 2017 § Leave a comment

Headed to the Bell Family Law Seminar tomorrow

You should be, too

Failure to Join Necessary Parties

July 26, 2017 § Leave a comment

Dorothy True died in 2014, at age 100. Her husband had predeceased her. She was survived by her four children: Ann Schmidt; Mary Hegwood; John True, who died after Dorothy’s death; and Jim True.

Jim filed to admit Dorothy’s eight-page holographic will to probate. Ann and Mary petitioned the chancery court to contest the will based on some formal irregularities. Following a hearing, the chancellor ruled that the will was a valid holographic will. It appears that Ann and Mary had proceeded against the executor and anyone else who had entered an appearance. But the estate of John, and some other devisees, as well as some heirs of the decedent, were not made parties. Ann and Mary appealed.

The COA reversed in the case of In the Matter of the Last Will and Testament of True: Schmidt and Hegwood v. True, handed down May 23, 2017, Judge Wilson writing for the court:

¶7. On appeal, Ann and Mary argue that the chancery court lacked jurisdiction because necessary parties were not joined. Unfortunately, we must agree. Section 91-7-25 of the Mississippi Code Annotated provides that “[i]n any proceeding to contest the validity of a will, all persons interested in such contest shall be made parties.” Our Supreme Court has made clear that this requirement is both mandatory and jurisdictional:

We have consistently held that the statutory mandate is jurisdictional and the court has no power to proceed with the contest until all interested parties are joined. [Robert A.] Weems, Wills and Administration of Estates in Mississippi, § 8–4, p. 180 (1988) states:

[T]he Legislature has provided that all interested persons must be made parties to the will contest. This requirement is jurisdictional. The Court has no power to proceed with a will contest, if any of the interested parties are not before the court. If the court does proceed the decree is invalid. It does not bind anyone, including those who participated in the contest. Moreover, the right to appeal on the basis of nonjoinder is not waived by the failure to plead it in the trial court.

Interested parties are those whose direct, pecuniary interests will be either detrimentally or advantageously affected by the probate of the will. Included in this group would ordinarily be a decedent’s heirs at law, beneficiaries under earlier wills, and beneficiaries under the will being contested. (emphasis added)

. . . .

One of the primary purposes of the statute is the fervent desire to avoid multiple litigation, and the court’s interest in consistent, efficient and final settlement of controversies. In Moore v. Jackson, 247 Miss. 854, 860, 157 So. 2d 785, 787 (1963), we stated:

The court cannot properly entertain a contest of the will without having before it all the parties interested in such contest. It was error to proceed without having them before the court. “There ought to be only one contest of the will, and, if the parties are not before the court when the will is being contested, of course their rights could not be affected by such contest.” This Court has consistently followed that interpretation in other cases.

. . . .

[S]uch parties were necessary, indispensable parties to the contest of the will. The court was without power to proceed without them.

To grant validity and credence to [a] court’s action in proceeding with [a will] contest without joinder of all interested parties would undermine the legislative mandate of [section] 91-7-25. In Estate of Schneider, 585 So. 2d 1275, 1277 (Miss. 1991), we had the occasion to reflect on Moore and stated:

In Moore this Court held that a chancery court did not have the authority to hear a will contest until “all persons interested” were made parties.

. . . .

Moore remains good law insofar as it holds trial proceedings must be held in abeyance until all necessary parties are joined in a suit contesting a will. Garrett v. Bohannon, 621 So. 2d 935, 937-38 (Miss. 1993) (internal citations omitted). The Court held that a judgment entered in a will contest “absent joinder of all necessary parties is void” and “must be set aside.” Id. at 938. In both Garrett and Moore, supra, the Supreme Court made it absolutely clear that although a failure to join a necessary party may be waived in some types of cases, it cannot be waived in a will contest; it may be raised for the first time on appeal, even by a party who participated below and failed to join the missing parties. See id. at 937-38; Moore, 247 Miss. at 787-88; 157 So. 2d at 861-63.

¶8. Returning to the present case, it is evident that we must reverse and set aside the judgment below because all necessary parties were not joined. John’s estate and Jamie are entitled to inherit under the contested will but were not joined. John’s estate and Frances’s two daughters were entitled to inherit under the law of intestate succession but were not joined. All were interested parties within the meaning of section 91-7-25 and Supreme Court precedent.

¶9. On appeal, Jim argues that his sisters waived this issue, that the missing parties’ interests were adequately represented, and that their joinder would not have made the slightest difference. [Fn omitted] We are sympathetic to these arguments. However, our Supreme Court has held specifically and repeatedly that the statutory requirement cannot be waived because it is both mandatory and jurisdictional. Its decisions do not reflect careless or imprecise use of the term “jurisdictional.” [Fn omitted] Rather, the point has been made and reaffirmed with deliberation and clarity over the course of many years. As such, any relaxation of or exception to this requirement must come from the Supreme Court or the Legislature.

¶10. Accordingly, the judgment rendered by the chancellor absent joinder of all interested parties is void and must be set aside. The case is remanded for joinder of all interested parties pursuant to the statutory mandate. Garrett, 621 So. 2d at 938.

So, who were the unjoined interested parties who were necessary to jurisdiction in this case? Note at ¶8 that the COA finds both the unjoined devisees and the unjoined heirs as necessary for jurisdiction. That’s because if the will is set aside, the heirs would stand to inherit.

This one is on the lawyers. It’s not the judge’s job to investigate and inquire about who should be made parties in a case such as this.

Revocation by Implication

July 25, 2017 § Leave a comment

May a will be revoked by a subsequent property settlement agreement in a divorce? That was an issue in the case of In the Matter of the Estate of Chaney: Chaney, et al. v. Chaney, decided May 16, 2017.

In June, 1962, James Chaney executed his last will and testament during a time when he was married to Lillian Hunt Chaney. The will devised farmland, located in Crockett County, Tennessee, to Lillian. James and Lillian had one child, Alice Ann Chaney. James and Lillian were divorced on May, 1969. In connection with the divorce, they executed a joint property settlement agreement, and in it, they agreed that Lillian would “relinquish any right or claim to the farm in Crockett [County], Tennessee.”

In 1971, James married Josephine Chaney, and they moved to Mississippi where they lived until James’s death in 2011. They had no children.

In 2011, Lillian filed a petition to admit James’s 1962 will to probate in Mississippi, joined in by Alice. Josephine contested the validity of the will and moved to transfer the Crockett County farmland out of the estate. The chancellor found that the will was revoked by implication, and Lillian appealed.

The COA affirmed. Judge Griffis wrote for a unanimous court:

¶14. Lillian and Alice … argue that the chancellor erred when he found that James’s will was revoked by implication. They contend the terms of the property-settlement agreement should not be read in conjunction with the will. Further, they argue that Josephine failed to present proof that demonstrated “clear and unequivocal evidence” of James’s intent to revoke the will and his prior devise of the farmland to Lillian.

¶15. Under Mississippi law, “[a] devise so made, or any clause thereof, shall not be revocable [except] by the testator . . . destroying, canceling, or obliterating the [will], or causing it to be done in his or her presence, or by subsequent will, codicil, or declaration, in writing . . . .” Miss. Code Ann. § 91-5-3 (Rev. 2013). In Rasco [v. Estate of Rasco, 501 So.2d 421 (Miss. 1987)], the supreme court recognized that a will may be revoked by various circumstances, not specified within the statute. Rasco, 501 So. 2d at 423 (citations omitted). However, the supreme court “declined to adopt a rule of automatic revocation” in instances where a pre divorce will and a subsequent property-settlement agreement are in conflict. Hinders[v. Hinders,] 828 So. 2d at 1235 (¶1) [Miss. 2002]. Rather, the supreme court held that “a divorce with a property settlement agreement would not operate to impliedly revoke a will unless the settlement evidenced the testator’s intent to [revoke the will].” Rasco, 501 So. 2d at 423.

¶16. When presented with this issue, a chancellor should “question . . . whether the testator intended . . . [the] settlement [to] operate as . . . an ademption of a prior-created [will] and release the [former] spouse of all rights [to] the [decedent’s] estate.” Id. Further,“[a]ny document presented as a subsequent declaration must reveal by ‘clear and unequivocal’ evidence, an intention to revoke the will.” Id. at 424. In its analysis, the supreme court incorporated the Tennessee Supreme Court’s ruling, which provided: “[G]enerally a divorce accompanied by a property settlement agreement[,] which is fully carried out according to its terms[,] should have the effect of revoking a prior will in favor of a former spouse, especially where the parties thereafter ‘sever all ties.’” Id. (quoting In re Estate of Perigen, 653 S.W.2d 717, 720 (Tenn. 1983)).

¶17. Here, the chancellor applied the factors in Rasco. He “look[ed] to the facts and circumstances of [this] particular case, the terms of the [w]ill itself, the divorce decree and the property settlement, and the conduct of the parties,” and based his findings accordingly. Rasco, 501 So. 2d at 424. The chancellor, as the fact-finder, determined that the express terms of the will and the provisions of the property-settlement agreement were inconsistent. In his will, James declared: (1) that he was married; (2) that his wife’s name was Lillian Hunt Chaney; and (3) that he devised to his wife, Lillian Hunt Chaney, all of his estate, both real and personal, which he owned at the time of his death. The chancellor found that James and Lillian divorced and executed a property-settlement agreement at least forty years prior to James’s death. By the express terms of the property-settlement agreement, Lillian forfeited her interest in the Crockett County farmland. The chancellor further determined that after the divorce, James and Lillian never resided together as husband and wife, and James remained married to Josephine, until the time of his death.

¶18. Thus, the chancellor’s finding that the subsequent property-settlement agreement satisfied the requirements of section 91-5-3, as a “subsequent declaration [to the will] reveal[ed] the clear and unequivocal intention” of James to revoke his predivorce will and divest Lillian of any interest in the farmland. See Miss. Code Ann. § 91-5-3.

¶19. The terms of the property-settlement agreement were unambiguous. Lillian, in exchange for consideration, relinquished any interest in the Tennessee farmland. With both James’s and Lillian’s signatures affixed to the document, James’s intention to remain the sole owner of the real property is apparent. Further, the agreement, executed more than forty years before the will’s probate, had been in effect without any contention from Lillian and Alice, until after James’s death.

¶20. Moreover, James executed his will in 1962 and entered into the property-settlement agreement in 1969, and with nearly four decades between the settlement agreement and his death, he maintained no contact with Lillian. Likewise, after the settlement agreement, Lillian had no further ties to the property. Thus, it is unlikely that James intended for his ex-wife to inherit property that she agreed to forfeit some forty years prior. The property settlement agreement speaks for itself, and James’s intentions are clear.

¶21. The claim that James failed to satisfy the terms of the property-settlement agreement is not enough to find that the subsequent declaration is not binding. Whether James failed to make child-support payments or maintain insurance for his then minor child has no present effect on the Court’s analysis. James’s daughter was seven years old when the settlement agreement was executed, and more than thirty years passed between the settlement agreement and the date of James’s death. It can still be determined that the parties severed ties many years before this action.

¶22. The chancellor correctly found that the parties intended to settle any and all property rights against each other and that James “acted by implication and intent” to void the previous bequests. Rasco, 501 So. 2d at 423. The chancellor viewed the will and the property-settlement agreement “in light of the surrounding circumstances” and found “clear and unequivocal” evidence that James intended to revoke his will. Hinders, 828 So. 2d at 1240 (¶15). Here, proof of intent is known based on the reference to the farmland and James’s specificity as to Lillian’s relinquishment of her interest. In exchange for later claims against the property, James offered consideration, and Lillian agreed. Lillian cannot now renege and revive her interest.

¶23. We find that the chancery court’s judgment was supported by substantial evidence. The chancellor did not err in finding that James’s will was revoked by implication. We affirm the chancellor’s findings.

Do not assume, and never let your clients assume, that a divorce, whether agreed or contested, will operate to revoke a will. As Hinders and Rasco both clearly state, there must be a specific, clear intent on the part of the testator to revoke. Here, the intent was clear, and Lillian’s agreement to forfeit her interest sealed the deal. Suppose, though, that the PSA had only included some of that standard language to the effect that what’s titled in her name is hers, and what’s titled in his name is his. Would that have been enough to revoke the will? I think not.

A previous post talking about advising your clients in the aftermath of divorce is here.

An End to Game-Playing

July 24, 2017 § 2 Comments

In 2007, Annie and Frederick Griffin got into a dispute with the mortgage carrier, ABN, over modified terms, and stopped paying. They then sued in federal court alleging fraud and violation of other federal laws on debt collection. ABN filed a motion to compel arbitration, but the matter returned to federal court in 2010 after the arbitrator no longer handled consumer cases. The Griffins filed a motion to declare the arbitration agreement unenforceable, and in response ABN withdrew the arbitration request, no doubt to move the case along. The court granted ABN’s motion.

The Griffins then filed an objection to the ruling, even though they had a pending motion to rule the arbitration agreement unenforceable. They filed the motion pro se, because their attorney withdrew, citing the Griffins’ proclivity for not following his advice. Finally, in February, 2012, the district court entered a sua sponte order dismissing the case for failure to prosecute, concluding that “[i]t appears to this court that the plaintiffs view this lawsuit not as something to be actually litigated, but, rather, as something to be kept alive indefinitely, even at the cost of taking a position that is fundamentally inconsistent with the one they have taken for years in this case.”

In January, 2014, the Griffins filed another complaint in chancery court raising the same legal claims and issues as in the federal suit, and based on the same set of facts. There ensued a removal to and remand from federal court, a recusal, and finally a dismissal in chancery on the ground of res judicata. The Griffins appealed pro se.

In the case of Griffin v. ABN, et al., handed down May 16, 2017, the COA affirmed. Judge Greenlee wrote for the court:

¶7. “The appropriateness of application of the doctrine of res judicata is a question of law” and will therefore be reviewed de novo. Swaney v. Swaney, 962 So. 2d 105, 108 (¶11) (Miss. Ct. App. 2007).

¶8. We agree with the chancellor that Griffin II [the chancery matter filed after the federal court dismissal] is properly barred under the doctrine of res judicata. The doctrine of res judicata has four identities: (1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made. Harrison v. Chandler-Sampson Ins., 891 So. 2d 224, 232 (¶24) (Miss. 2005).

¶9. All four identities are met in the case at hand. The factual allegations in the complaint of Griffin II were copied almost verbatim from the complaint of Griffin I, and with the exception of dropping a couple of claims (the FDCPA and TILA claims), the complaint reasserts the same claims of fraud. All parties present in Griffin I were also present in Griffin II.

¶10. In addition to those four identities, to qualify as res judicata the prior judgment must have been a final judgment on the merits. Anderson v. LaVere, 895 So. 2d 828, 833 (¶10) (Miss. 2004). Under both Mississippi and Federal Rule of Civil Procedure 41(b), dismissal for failure to prosecute operates as a final judgment and dismissal is with prejudice. An exception is found in Mississippi Rule of Civil Procedure 41(d), which provides that where dismissal is made by the clerk following twelve months of docket inactivity, that dismissal is without prejudice. See Strickland v. Estate of Broome, 179 So. 3d 1088, 1094 (¶18) (Miss. 2015). But the case at hand does not fall under Rule 41(d), but rather falls under Rule 41(b). Prior to dismissal, the Griffins were put on notice by the district judge that the case would be dismissed for failure to prosecute if the litigation did not move forward in a meaningful way. The Griffins responded by shifting their legal position in order to avoid trying the merits of the case. The district court’s dismissal of the action was not only appropriate for failure to prosecute, but was also consistent with the Griffins’ new argument that the case should not be tried in court at all but rather arbitrated.

The court went on to address and reject some other issues raised by the Griffins.

Some takeaways:

  • Res judicata is all about identity of issues, facts, and parties. It matters not that the original, dismissed proceeding was in another state or federal court.
  • Res judicata requires a final judgment on the merits in the dismissed action, and the COA found here that the federal court’s dismissal order was a final judgment on the merits per R41(b), and not a dismissal per R41(d).
  • Shifting your legal position is a pretty effective way to frustrate your judge. My term for it is game-playing. Courts are for serious business, not for toying with others, delaying, pettifogging, and caviling. That’s the kind of conduct that will get your case thrown out of court. The Griffins’ lawyer was wise to withdraw before he became identified with their tactics and his own credibility with the court took a hit.

Reprise: Getting Police Reports in Evidence

July 21, 2017 § Leave a comment

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

POLICE REPORTS AS EVIDENCE

February 11, 2013 § Leave a comment

Police investigations and reports not infrequently play an evidentiary role in divorce and modification trials in chancery court.

A recent example is Heimert v. Heimert, handed down by the COA on November 13, 2012. In this case, Sheri and Walter Heimert had a history of physical altercations involving allegations of biting, strangling, hitting, and on and on, with the physical marks to show for it. The police were called multiple times to intervene, and two police reports, one from August, 2007, and the other from December, 2008, were offered into evidence. The December report showed that Sheri was charged with domestic violence. Her attorney objected that there was an inadequate foundation to admit it, but the chancellor let it in anyway, and Sheri complained on appeal that the report should not have been admitted.

The COA rejected Sheri’s argument. Judge Lee, for the court:

¶16. “Even though police reports, if offered in evidence to prove the truth of the matter asserted[,] are hearsay and the information within them may be based on hearsay, they may be admissible under the hearsay exception in [Mississippi] Rule [of Evidence] 803(8).” Rebelwood Apartments RP, LP v. English, 48 So. 3d 483, 491 (¶36) (Miss. 2010). Rule 803(8), entitled “Public Records and Reports,” states:

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . (C) in civil actions and proceedings and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

¶17. The police report was taken after an investigation of domestic violence reported by Sheri. No assertion has been made that the document lacks trustworthiness. Sheri argues the police report was inadmissible because it was not authenticated. However, a document may be authenticated by the testimony of a witness with knowledge “that a matter is what it is claimed to be.” M.R.E. 901(b)(1). Sheri was a knowledgeable witness, and she submitted the police report as part of discovery. Sheri testified she was familiar with the document; thus, Sheri’s testimony was sufficient to show that the document was “what it [was] claimed to be” – the police report from December 5, 2008. See Cassibry v. Schlautman, 816 So. 2d 398, 403-04 (¶¶20-23) (Miss. Ct. App. 2001) (finding medical records submitted by plaintiff in discovery were authenticated by plaintiff’s own testimony).

¶18. Further, Sheri testified consistently with the information in the police report, and Walter testified consistently with his version of events in the police report. Thus, even if the police report was admitted into evidence erroneously, the admission was harmless, as it was cumulative. Id. at 404 (¶24) (holding admission of hearsay may be held harmless where corroborating evidence exists). Sheri complains she was prejudiced by the report because it only contained information provided by Walter. However, this is not the case. The report clearly contains information gathered from both Walter and Sheri.

¶19. Sheri was familiar with the police report, and she submitted it as part of discovery. Further, the contents of the police report were corroborated by the testimony. We find the police report was properly admitted into evidence. This issue is without merit.

In other words, Sheri was hoist with her own petard. She herself corroborated the facts in the report in her testimony, and she herself had sifted the poison pill into the recipe by providing it in discovery, thus weakening her arguments against authenticity and trustworthiness.

One is left to wonder whether Sheri’s objections would have been upheld if Walter had been the sponsor of the report, and if Sheri had truthfully denied the facts in the report. What do you think? Don’t overlook this statement by Judge Lee: “The report clearly contains information gathered from both Walter and Sheri.”

Making the Judge’s Job Easier: The Asset Table

July 19, 2017 § 4 Comments

The easier you make it for the judge to rule in your favor, the more likely it is that she will. That’s a thought I have expressed here many times.

When it comes to equitable distribution, think about how it’s usually done. On day one at 9:46, you ask your client about the living room furniture: its value, age, condition, whether it’s marital or not. Then, at 10:18, you return to the assets after a foray into some HCIT testimony. Ten minutes is devoted to an IRA and the couple’s vehicles. Then some custody testimony. At 11:38, you start questioning about a PERS account. Lunch break. After lunch, more PERS followed by a venture into more HCIT. At 2:09, more testimony about the furniture. Then back to HCIT. Day two is pretty much the same. After everyone has rested, the judge then has to dig through notes to ferret out the evidence on assets so as to make a ruling on equitable distribution. Don’t be surprised if the judge misses something. Oh, and if you happen to interrupt her while she is working on that opinion, don’t be surprised if she is in a foul humor.

It doesn’t have to be that way.

Before you go to trial, why not make an asset table? It should have six columns: (1) a number assigned serially to each item to facilitate questioning; (2) a description of the asset (e.g., “Red couch – Living room” or “Apache Industries 401(k) account no. AFP0875-401-CX” or “2015 blue Ford F-150 pickup”; (3) Designation as marital or non-marital; (4) fair market value; (5) Debt associated with the item; (6) Whether Husband (H) or Wife (W) should receive the item. Some people use a spreadsheet to do this; others use a table in a word processing program. When you come up with a template for it, you can use it time and again.

Once you have had the asset list properly identified and introduced, you can question your client from the table. It eases the work of the chancellor considerably, and will go a long way toward giving the judge the impression that you know what you’re doing.

In this district, we require counsel for both parties to come up with a consolidated asset table. You can’t get a trial date in my court until you do, when equitable distribution or alimony is an issue. This requires the parties to agree to what the assets are, but they can disagree as to values, whether the asset is marital or not, and who should receive the item. The obvious virtue of this approach is that the judge does not have to figure out whether the wife’s testimony about the “green chair” was referring to the “chair in the living room” testified to by husband.

We have had few problems getting counsel to cooperate to come up with the list. When a client drag his feet, the judge’s suggestion that he will simply use the more diligent party’s list usually gets cooperation.

Don’t forget to provide your asset list in discovery if that information is requested. You don’t want to be stopped at trial by failure to provide it in discovery.

Remember, too, that although a client may give his or her opinion as to values, some values are best proven otherwise. A residence, for example, should have an appraisal, unless the parties agree to the value. The value of financial assets should reflect the most recent statements. If you want the judge’s ruling to be as accurate as possible, you should provide as accurate as possible information.

The asset table may be appended to an 8.05, or it may be referenced in the appropriate place in the financial statement.

This may seem like extra work, but you will be gratified at how much easier it makes your trial work, and how much clearer and effective your case for equitable distribution will be.

Life Insurance to Secure the Award

July 18, 2017 § Leave a comment

In 2015, Ronnie and Amy Ali were divorced in an acrimonious proceeding that featured over 200 docket entries. Amy was granted the divorce on HCIT, and was awarded custody, child support, equitable distribution, alimony, and attorney’s fees. To secure the financial award, the chancellor ordered Ronnie to maintain a $2 million life insurance policy. Ronnie appealed on several issues, including the life insurance.

In Ali v. Ali, handed down June 13, 2017, the COA reversed and remanded on the life insurance issue. Since the opinion is a concise statement of the law on the point, I am including that portion. Judge Fair wrote for a 6-4 court:

¶22. The chancellor ordered Ronnie to maintain a life insurance policy valued at $2 million, with Amy to receive $1.5 million and the minor daughter to receive $500,000 in the event of Ronnie’s death. On appeal, Ronnie argues that the policy amounts required for Amy are excessive in light of the permissible purposes of such awards. We agree.

¶23. In Coggins v. Coggins, 132 So. 3d 636, 644-45 (¶¶35-37) (Miss. Ct. App. 2014), this Court explained:

An alimony payor “may be required to maintain life insurance in an amount sufficient to satisfy payment of alimony obligations that survive the payor’s death.” [Deborah H.] Bell, Mississippi Family Law § 9.08[4][c] [(2005)] (citing In re Estate of Hodges, 807 So. 2d 438, 442-44 (¶¶14-23) (Miss. 2002)). The key phrase is “alimony obligations that survive the payor’s death.”

Periodic alimony is an obligation that “terminates automatically” upon the payor’s death and cannot be imposed upon the payor’s estate, absent an express agreement. Armstrong [v. Armstrong, 618 So. 2d 1278, 1281 (Miss. 1993)]; see In re Hodges, 807 So. 2d at 443 (¶19). While lump-sum alimony fully vests at the time of the divorce judgment, periodic alimony only vests on the date each payment becomes due. In re Hodges, 807 So. 2d at 442 (¶17). So when the payor dies, the only alimony obligations that survive—and the only obligations that may be insured—are unpaid lump-sum alimony and unpaid periodic-alimony payments that have already vested.

Recognizing the possibility that an alimony payor may fall behind in periodic-alimony payments and then die leaving those vested payments unsatisfied, this court has acknowledged the chancellor’s authority to require the alimony payor to maintain a life-insurance policy to protect the recipient spouse against such a contingency. [Johnson v. Pogue, 716 So. 2d 1123, 1134 (¶41) (Miss. Ct. App. 1998)]; see also Beezley v. Beezley, 917 So. 2d 803, 808 (¶17) (Miss. Ct. App. 2005). But in Pogue, this court found that requiring the payor to maintain a $75,000 life-insurance policy to protect against the potential failure to make $500-per-month alimony payments was “excessive.” Pogue, 716 So. 2d at 1134 (¶41).

¶24. Given the standard we have just recited, it is impossible to say that a life insurance policy of $1.5 million is necessary to guard against the potential failure to make $5,500 monthly alimony payments and to repay approximately $376,500 in marital debt. On remand, the chancery court should determine an appropriate award in light of the authorities we have just discussed.

I posted about Coggins at this link.

Several points:

  • I think most attorneys have thought about life insurance as a replacement for future years of alimony that will not be paid in the event of the payer’s untimely death. Coggins, however, makes it clear that what is insured is any unpaid arrearage existing at the time of death, since periodic alimony payments cease at the death of the payer.
  • Does the same rule apply to child support? In the absence of an agreement to the contrary, the child support obligation ceases at the death of the payer, and the estate of the decedent is not liable for future support. It would appear, then, that child support would be subject to the same considerations as alimony.
  • One failing of most attorneys is to offer any proof of the cost of life insurance. I refuse to award it without some testimony of the projected cost.

You Don’t Play — You Pay

July 17, 2017 § 3 Comments

Robert A. Johnson filed a contest to his father’s will, which left everything to Robert’s stepmother, Myra Henderson, and bequeathed nothing to Robert and his brother.

Henderson gave notice of a deposition to be taken in her attorney’s office in Mississippi. Johnson, who lived in California, filed a motion to quash and for a protective order on the basis that it was unduly burdensome on short notice, and that Henderson should either have to pay his travel expenses, or should do the deposition by remote video, or should travel to California to depose him. The chancellor ruled that Johnson would have to travel to Mississippi to give the deposition, but did allow him thirty days’ notice.

Based on the court’s ruling, Henderson re-noticed the deposition for thirty-two days later at her attorney’s Mississippi office. Three days before the scheduled time, however, Johnson’s lawyer called Henderson’s lawyer and told him that Johnson would not appear. Johnson did not appear at the appointed time and date.

Henderson filed for sanctions. At the hearing on the motion, Johnson’s attorney argued that Johnson had been to busy to attend. The chancellor inquired why Johnson had not filed anything to stay the date to a less busy period, and the attorney replied that he wanted to, but was unable to coordinate documentation with Johnson’s California lawyer. Henderson argued for financial sanctions. The chancellor, however, had other ideas: “I can not allow somebody to file an action in a will contest or otherwise in my Court and not make themselves available to the Court for necessary discovery. I can’t allow it. It’s frankly, contemptuous. And also, if it’s not done, all it does is slow down the wheels of justice.” He dismissed Johnson’s complaint with prejudice, and Johnson appealed.

The case was taken by the MSSC, which affirmed in In the Matter of the Estate of Johnson: Johnson v. Henderson, decided June 1, 2017. Justice Maxwell wrote for the 5-4 majority:

¶11. The rule governing a party’s failure to attend a properly noticed deposition is very clear. “If a party . . . fails . . . to appear before the officer who is to take his deposition, after being served with a proper notice, . . . the court in which the action is pending on motion . . . may take any action authorized under subsections (A), (B), and (C) of subsection (b)(2) of this rule.” M.R.C.P. 37(d) (emphasis added). One of the actions authorized by subsection (b)(2) is the issuing of an order “dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.]” M.R.C.P. 37(b)(2)(C). So under Rule 37, dismissal is an authorized sanction.

¶12. Johnson does not claim he lacked proper notice of the December 11, 2015 deposition. So under Rule 37(d)’s plain language, his failure to appear triggered the chancellor’s discretionary authority to dismiss his will contest with prejudice. Johnson recognizes this authority but tries to temper his nonappearance by arguing it was not willful. As his lawyer later pitched it to the chancellor, he was just too busy to be there.

¶13. Johnson insists this Court’s precedent cuts against his being hit with the ultimate sanction of dismissal. See, e.g., Pierce v. Heritage Props., Inc., 688 So. 2d 1385, 1388 (Miss. 1997) (finding the plaintiff’s willful discovery violation supported the trial judge’s sanction of dismissal). But the record shows his nonattendance was willful. Opting against seeking court permission or intervention, he gambled on forgiveness, and intentionally skipped out on his properly noticed deposition. Johnson made no prior mention of work obligations or serious conflicting business duties. It was only afterward, when looking down the barrel of dismissal, that his attorney suggested to the chancellor that Johnson’s California business would have been disrupted had he attended the deposition. Johnson had not mentioned this excuse to the court before ditching his deposition. Nor did he seek court intervention or direct his counsel to work with Henderson’s lawyer to find a more suitable date to be deposed.

¶14. In fact, Johnson apparently never intended to inform Henderson he was not coming. Our review shows it was Henderson’s lawyer who contacted Johnson’s attorney three days before the scheduled deposition to verify Johnson would be there. And only then, according to Henderson’s attorney, did Johnson’s lawyer tell him his client was not coming.

¶15. In addition to willfulness, we also consider “whether the failure to comply is attributable to the party itself, or their attorney,” and “whether the failure to comply was a consequence of simple confusion or a misunderstanding of the trial court’s order.” Beck v. Sapet, 937 So. 2d 945, 949 (Miss. 2006) (citing Pierce, 688 So. 2d at 1389). Here, the record supports the chancellor’s finding that it was in fact Johnson—not his attorney—who decided to skip the deposition. And his absence was not based on confusion over the judge’s November 9 ruling that he come to Mississippi to be deposed. It was willful.

¶16. Based on this willful, unexcused failure to attend the December 11 deposition, we find the chancellor was within his discretion under Rule 37(d) to sanction Johnson by dismissing his action. See Salts, 872 So. 2d at 674 (affirming the trial judge’s dismissal under Rule 37(b)(2)(C) for failure to attend a deposition as within the judge’s discretion); Gilbert v. Wal-Mart Stores, Inc., 749 So. 2d 361, 364 (Miss. Ct. App. 1999) (affirming trial judge’s sanction of dismissal because “the record reveals that it was more wilfulness or bad faith on the part of Gilbert that prevented his appearance” at the scheduled deposition).

¶17. The dissent and Johnson try to distinguish Salts and Gilbert by arguing, in those cases, the plaintiffs had been ordered to attend the depositions. And in his case, Johnson was never ordered by the chancellor to show up on December 11. But the fact the parties in Salts and Gilbert were under court order—and Johnson was not—is immaterial to our analysis. It simply makes their failures to appear not only violations of Rule 37(d) but also Rule 37(b), which specifically governs the failure to comply with discovery-related court orders. See Salts, 872 So. 2d at 674; Gilbert, 749 So. 2d at 364. There is nothing in Rule 37(d)—the subsection that specifically governs a party’s failure to attend his own properly noticed deposition—that limits the trial court’s discretionary authority to dismiss to only those case where a party has been expressly ordered by the court to attend a deposition. Compare M.R.C.P. 37(d) (governing “Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection”) with M.R.C.P. 37(b) (governing “Failure to Comply With Order”). Again, Rule 37(d) makes clear a party cannot ignore a properly served notice of deposition with impunity. Instead, he must appear or, if appearance is not feasible, seek the other side’s cooperation and, if necessary, the court’s intervention. In this case, Johnson did nothing. He simply rolled the dice and decided not to come to Mississippi to be deposed, despite the judge’s ruling.

¶18. The dissent also suggests the chancellor did not consider lesser sanctions—another factor we weigh when reviewing the sanction of dismissal. See Beck, 937 So. 2d at 949 (citing Pierce, 688 So. 2d at 1389). But we find he did. At the motion-for-sanctions hearing, Johnson’s counsel specifically argued that, “if sanctions are imposed, they should be financial sanctions.” This, he insisted, would “allow [Johnson] to compensate the opposing party but still have his day in court here.” The chancellor considered but rejected this suggestion.

¶19. It is obvious the chancellor felt lesser sanctions would not suffice. In meting out the appropriate sanction, he found he could not allow practitioners to file lawsuits then thwart necessary discovery through their nonavailability. He deemed such a course as “frankly, contemptuous.” In his view, this sort of willful behavior “slow[s] down the wheels of justice.” From this exchange, it is evident the judge acknowledged and considered Johnson’s argument but found dismissal the only viable sanction for Johnson’s willful conduct. See Pierce, 688 So. 2d at 1390-91 (affirming the sanction of dismissal, in part, because the trial court had considered less-drastic sanctions but found none would have the same deterrent value). While this court may have crafted a different sanction, we cannot say the chancellor lacked discretion to dismiss with prejudice under Rule 37(d).

¶20. As a final matter, Johnson argues the chancellor wrongly denied his motion for a protective order. This was the motion he filed in response to the first notice of the October 22, 2015 deposition. The record contains no transcript from the November 9, 2015 hearing on Johnson’s motion. But during the January 5, 2016 sanctions hearing, Johnson’s attorney recapped the judge’s prior ruling, acknowledging “[p]reviously . . . the court ruled that it was better to have in person depositions and we agreed.” (Emphasis added.) But even if Johnson disagreed with the judge’s ruling that he had to come to Mississippi to be deposed, he could not simply ignore the properly noticed December 11 deposition. Johnson could have filed a second motion for protective order based on the timing of the deposition, but he did not. [Fn omitted] Instead, he deliberately chose not to attend. Based on this unexcused absence, we find the chancellor was within his discretionary authority under Rule 37(d) to sanction Johnson with dismissal.

There is a rigorous dissent, which you might want to read for authority in case you find yourself on the uphill side in a similar case.

What you need to take notice of here is that R37(d) has got some serious teeth that can inflict fatal damage on your case. You can’t always control a recalcitrant client such as Johnson apparently was in this case, but you may be able to file a timely motion for a protective order that might insulate him from the most extreme sanction.

In any event, this case is anecdotal evidence that judges are becoming less patient with people who file lawsuits and then gum up the works. If you come to play, you need to play. If you don’t, the ultimate price is what you may have to pay.

Dispatches from the Farthest Outposts of Civilization

July 14, 2017 § Leave a comment