Tried by Consent

December 18, 2018 § Leave a comment

C.V. and Livia Sue Glennis sued their neighbors, Donald and Nerissa Booker for destruction of the Glennis’s shrubs. The chancellor awarded $1,320 in damages, and the Bookers appealed charging that the destruction of the shrubs had not been properly pled, and so was not an issue for trial.

In Booker v. Glennis, handed down October 30, 2018, the COA affirmed the award of damages. Here is how Judge Tindall, writing for a more or less unanimous court, addressed the issue:

¶12. The Bookers argue that the destruction of the shrubs was not an issue properly before the court and therefore was improperly determined.  The Bookers assert that they never consented to trying the claim for damages for the death of the shrubs. The record, however, reveals otherwise. At trial, upon request by the Bookers’ counsel, the chancellor allowed testimony beyond that of the Glennises’ contempt pleadings and treated all pleadings as amended to conform to the evidence tried and “to include the granting of any affirmative relief regarding the two parties . . . so as to minimize the future conflicts between them.” Later in trial, Bookers’ counsel again asked to go further into issues with his examination of Mr. Booker, and the chancellor allowed the expansion because “those issues are before the Court in the complaint and counter-complaint, requesting for affirmative relief filed pro se by the Bookers . . . .”

¶13. Both the Glennises’ counsel and the Bookers’ counsel elicited, on a number of occasions, witness testimony regarding the destruction of the shrubs. Further, during the cross-examination of Mr. Glennis, the chancellor indicated her understanding that “from listening to the testimony and looking at the photograph the shrubs that have been testified [about], [which] were not raised in the pleadings but have been testified [about,] [are being] tried by the consent of the parties . . . .” No party objected to this issue being tried. In fact, at the end of the trial, the Glennises’ counsel moved for their pleadings to be conformed to the proof submitted, and the Bookers’ counsel asserted, “[w]e would make the same motion, Your Honor.” Thereafter, in the subject order of July 5, 2016, the chancellor ordered “all of said pleadings . . . [be treated as] amended to conform to the evidence presented at the conclusion of trial due to multiple issues tried that were not pleaded.”

¶14. Mississippi Rule of Civil Procedure 15(b) permits issues to be tried by express consent of the parties.

When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure to so amend does not affect the result of the trial of these issues.

M.R.C.P. 15(b); Weiss v. Weiss, 579 So. 2d 539, 542 (Miss. 1991). As reflected in the record, counsel for both parties put on evidence regarding the shrub destruction, and counsel for both requested and consented to this amendment of the pleadings. Therefore this issue is without merit.

The record was abundantly clear that the lawyers intended, and the judge ruled, that the pleadings were amended to conform to the proof. That’s good lawyering and judging when the record leaves no doubt.

SOL in a Suit to Set Aside a Deed

December 17, 2018 § 1 Comment

Bryant was administrator of Cooley’s estate. She filed suit to remove cloud from title and to set aside a deed signed by Cooley, alleging undue influence, lack of capacity, and fraud. She also claimed the deed was void due to the fact that Cooley’s wife had failed to execute it.

A chancellor dismissed Bryant’s suit, finding it barred by the the three-year general SOL (statute of limitations). The judge found that Bryant had not maintained a possessory interest in the property, and so the three-year statute applied. Bryant appealed.

The COA, in Bryant v. Dent, et al., decided September 18, 2018, reversed and remanded, holding that the ten-year statute applied. Judge Lee wrote for a unanimous court:

¶11. Actions to recover land are subject to the ten-year statute of limitations found in Mississippi Code sections 15-1-7 and 15-1-9. In relevant part, section 15-1-7 provides:

A person may not make an entry or commence an action to recover land except within ten years next after the time at which the right to make the entry or to bring the action shall have first accrued to some person through whom he claims, or, if the right shall not have accrued to any person through whom he claims, then except within ten years next after the time at which the right to make the entry or bring the action shall have first accrued to the person making or bringing the same.

Miss. Code Ann. § 15-1-7 (Rev. 2012). Similarly, section 15-1-9 provides:

A person claiming land in equity may not bring suit to recover the same except within the period during which, by virtue of Section 15-1-7, he might have made an entry or brought an action to recover the same, if he had been entitled at law to such an estate, interest, or right in or to the same as he shall claim therein in equity.

Miss. Code Ann. § 15-1-9 (Rev. 2012). “A suit to remove a cloud on title is considered an action to recover land.” Lott v. Saulters, 133 So. 3d 794, 799 (¶8) (Miss. 2014).

¶12. We find the chancellor’s reliance upon O’Neal Steel Inc v. Millette, 797 So. 2d 869 (Miss. 2001), is misplaced. There, O’Neal sought to enforce a judgment lien, not title or possession of the property at issue. Id. at 874 (¶15). The supreme court stated that a “judgment lien does not create in O’Neal a possessory interest in the real property,” and “absent any possessory interest in the subject property, O’Neal cannot claim that this
litigation is an action to recover land.” Id. at 873 (¶¶12,13).

¶13. Here, Bryant, as administrator for Cooley’s estate and individually as a possible heir of Cooley, seeks possession of the real property deeded away by Cooley, allegedly due to undue influence. In a similar situation, the supreme court held that the ten-year statute of limitations applied. See In re Estate of Reid, 825 So. 2d 1, 6 (¶¶16-19) (Miss. 2002). There, the decedent’s potential heir alleged undue influence in an attempt to set aside the decedent’s transfers of real property to her adopted son. Id.

¶14. Because the ten-year statute of limitations applies, Bryant’s suit is not barred. Thus, we reverse and remand for further proceedings.

The court affirmed the chancellor’s dismissal of Bryant’s fraud claim, agreeing with the chancellor that that the pleading did not meet the requirements of MRCP 9(b).

The court also noted that, due to the remand, Bryant could pursue the claim of failure to join Cooley’s wife on in the transaction on remand if she chose to do so.

Reprise: You Can’t Represent Both Sides in an I.D. Divorce … Ever

December 14, 2018 § Leave a comment

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

Playing with Dynamite

May 12, 2015 § 1 Comment

If a husband and wife came into your office and wanted you to represent them both in an ID divorce, what would you say? I think, and would hope, that the vast majority of us would decline on ethical grounds and offer to represent only one, not both.

How would it work, anyway, to represent both parties? You could put them in separate rooms and shuttle between. You could run to one room and advise the husband against agreeing to pay any alimony, and then run to another room and advise the wife to hold out until the husband agrees to alimony. Absurd? I’ll say.

Mississippi Rule of Professional Conduct (MRPC) 1.7 precludes representation of opposing parties in litigation unless certain conditions are met. Ethics Opinion number 80 of the Bar issued March 25, 1983, makes it clear that joint representation in an irreconcilable differences divorce is unethical:

The Committee is, therefore, of the opinion that the representation of both parties to a no-fault divorce violates the Rule 1.7, MRPC, and that it is, therefore, unethical for a lawyer to undertake such multiple representation.

How to handle it is set out in this language of the Opinion:

There is nothing wrong at all with one of the parties to a No-Fault Divorce being without an attorney, so long as that party, either H or W is properly informed by the spouse’s attorney that (1) that party is not represented by the spouse’s attorney, (2) the spouse’s attorney will not undertake to advise that party on any aspect of the case as to his or her rights, and (3) that party has a right to obtain an attorney to advise him or her and to review any of the agreements, pleadings or decrees which will be prepared. See Rule 4.3, MRPC.

A recent COA case involved dual representation and a challenged outcome. Leta Collins and Kenneth Collins were divorced from each other in 2011. They had filed a joint complaint for divorce on the sole ground of irreconcilable differences. The pleading stated that “The parties together have been represented by [Name of the Attorney], and was signed by that attorney as “Counsel for Leta D. Collins and Kenneth J. Collins.” In the PSA, which was approved by the court, Leta relinquished all interest in Kenneth’s financial assets and retirement.

More than a year later, Leta discovered that she had not known of more than $500,000 in financial assets that Kenneth had at the time of the divorce. She filed a R60 motion, but she did not allege that a fraud had been committed. The chancellor denied the motion, and Leta appealed.

In the case of Collins v. Collins, decided May 5, 2015, the COA affirmed. Judge Fair wrote this for the court:

¶24. Leta argues that the marital property was not equitably distributed because she and Kenneth were represented by the same attorney during the divorce. She alleges that her lack of independent advice and counsel led her to sign the unfair PSA.

¶25. The joint complaint for divorce states “[t]he parties together have been represented by M. Chadwick Smith,” and it was signed by Smith as “attorney for” both parties. Leta testified she and Kenneth believed they were represented by the same attorney. Leta argues this was a direct violation of Mississippi Rule of Professional Conduct 1.7(a), which prohibits representation of “a client if the representation of that client will be directly adverse to another client,” unless certain conditions are met.

¶26. The chancellor addressed this issue in her findings from the bench, stating that

when Mr. Chadwick Smith came in with his document, the final decree, I inquired of him who he represented because the divorce had the words that Ms. Collins’[s] counsel very ably draws to attention, that he represented both. And he stated, “I only prepared the paperwork, Judge. That’s what it says on there, ‘Prepared by.’” Only after the assurances of Mr. Chad Smith did I accept the parties’ divorce, and I signed the same on the 8th day of June 2011. Thus the allegations that Ms. Collins seeks to present that Mr. Collins committed a fraud on this court are fundamentally vested against Mr. Chad Smith.

¶27. Leta testified that she was the one who had actually prepared the PSA, based on her prior divorce papers, with some contributions from Kenneth. Kenneth likewise testified that Smith did not make any decisions for them. As the chancellor found, if Smith violated the Rules of Professional Conduct by engaging in dual representation, it was not a sufficient basis to modify the divorce decree. This issue is without merit.

What saved the attorney here apparently was that the parties had specifically waived financial disclosures, and it was Leta, and not the lawyer, who prepared the PSA. Both parties acknowledged that the lawyer gave them no advice at all. It did not help Leta’s cause, if you read the rest of the opinion, that it took her a year and some months to seek the court’s assistance.

A few thoughts:

  • Don’t let anything about the peculiar facts in this case mislead you into believing it’s ever okay to represent both parties in an ID divorce. It’s not. Ever. It’s unethical. And if it’s unethical, it can cost you professionally. Don’t do it. Ever.
  • Any lawyer who states on a joint complaint for divorce that he represents both parties is asking for trouble. That in and of itself is a statement admitting an ethical violation.
  • I must be getting old (and I admit I am), but I am seeing more and more of people with JD after their names taking the position that “I only drafted papers for the parties,” or “I simply typed and submitted what they gave me,” or “this is what the client insists on doing.” Whatever happened to lawyers (JD’s)  as counselors at law? Have lawyers gone from being legal advisors and guides to being high-priced clerk-typists? What is the point of having a lawyer when anyone with a word-processing program and a laptop can produce pleadings and an agreement? What is the point of having a lawyer if it is not to obtain legal advice? This trend, particularly among young people with JD after their names troubles me greatly. Notice that I said “JD after their names” and not lawyers. Just because you have JD after your name does not make you a lawyer. What makes you a lawyer is representing, protecting, and looking after the legal interests of a client. If all you’re doing is being a paying customer’s stooge, or acting as their clerk-typist, all you are is a JD, not a lawyer.
  • In this case, the parties themselves acquiesced in this awkward arrangement, which created an excuse for it under MRPC. Had they not, I think Ms. Collins had a legitimate beef, and maybe a viable lawsuit against their joint lawyer. But although it gets the lawyer out of this particular bind, I don’t think that the parties’ acquiescence can excuse this ethical breach. The lawyer, not the parties. has the higher duty and is ethically bound.
  • If you ever draft a joint complaint, make doubly, triply sure that you make it clear which party you represent, and that you have not, and will not provide the unrepresented party with any legal advice, and that she has the right to have attorney advise him or her and to review any of the agreements, pleadings or decrees which will be prepared.
  • Better yet: never, ever, ever, ever file a joint complaint for divorce on the ground of irreconcilable differences.
  • And, for Pete’s sake, be an attorney and advise your client. That’s what you went to law school for.
  • Play fast and loose with the ethical rules and you are playing with dynamite.

Easement: Express or by Prescription, but not Both

December 12, 2018 § Leave a comment

In a property dispute between the Ryans and the Rays, the chancellor interpreted ambiguous language in a deed to create an express, perpetual easement in favor of the Rays. She went on and found alternatively that the Rays had proven the elements of a prescriptive easement. The Ryans appealed, contending that the chancellor erred in both findings.

In Ryan v. Ray, decided August 21, 2018, the COA affirmed the judge’s ruling that the language of the deed created an express grant of an easement. The court reversed and rendered on the issue of the prescriptive easement.

Remember that a prescriptive easement is in essence an easement by adverse possession. In Threlkeld v. Sisk, 992. So. 2d 1232, 1237 (Miss. App. 2008), the court said that, “One claiming an easement by prescription must show that the use of the property was (1) open, notorious, and visible, (2) hostile, (3) under claim of ownership, (4) exclusive, (5) peaceful, and (6) continuous and uninterrupted for a period of ten years. Biddix v. McConnell, 911 So.2d 468, 475(¶ 18) (Miss.2005) (citing Sharp v. White, 749 So.2d 41, 42(¶ 7) (Miss.1999)).” And, as in adverse possession, the claimant must prove each element by clear and convincing evidence. West v. Brewer, 579 So.2d 1261, 1262 (Miss.1991)).

Judge Lee, writing for the court in Ryan v. Ray, explained how the Rays fell short:

¶17. Although the chancellor found that there was an express, perpetual easement over the Ryan property for ingress and egress to the Ray property, the chancellor made an alternative finding that in the absence of a perpetual easement, there was clear and convincing evidence to support an easement by prescription using the doctrine of tacking. The Ryans argue on appeal that the Rays failed to satisfy the elements necessary for a prescriptive easement. We agree.

¶18. In this case, there was an express easement granted, which the chancellor found was one for perpetual ingress and egress to the property at issue. We affirm that decision as it was supported by substantial credible evidence. Therefore, an alternative theory for establishing an easement is unnecessary. But moreover, the alternative ground is legally contradictory. An express easement and a prescriptive easement cannot co-exist. “The rule is well settled that use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription.” King v. Gale, 166 So. 3d 589, 594 (¶22) (Miss. Ct. App. 2015). Thus, the chancellor’s finding of a prescriptive easement was legally erroneous, and we do not affirm on these grounds. The error does not require reversal however, as the chancellor’s disposition is affirmed on other proper grounds as set forth in this opinion.

Just Enrichment

December 11, 2018 § 1 Comment

Lamar Bond built a workshop and apartment on the property of Lee and Jennifer Bond, who were his son and daughter-in-law. Lamar moved into the apartment during a divorce and lived there for a couple of years. When Lee, a police officer, discovered that Lamar was smoking marijuana on the property, he ordered Lamar off of the land.

Lamar filed suit claiming that had spent a lot of money building the structure and that Lee and Jennifer had violated a promise that he could live there for the rest of his life.

Lee and Jennifer responded that Lamar’s use of the place was only intended to be temporary, until his divorce was finalized. They argued that he had spent the money to dissipate assets on the divorce, and that the workshop/apartment was a gift intended to be an advance on Lee’s inheritance. They contended that the structure was meant to be used for visits by other family members and a workshop where Lee and Lamar could work on projects together after years of strained relationship. Lee’s brother’s confirmed that Lamar had never mentioned that it was planned to be a permanent residence.

The chancellor ruled that Lee and Jennifer’s testimony was more credible. He rejected Lamar’s position that he was entitled to an equitable lien or a constructive trust. Lamar appealed.

In Bond v. Bond, decided October 30, 2018, the COA affirmed. Judge Fair penned the court’s opinion:

¶5. At trial, Lamar claimed he was entitled to a constructive trust regarding the property, but the chancery court found that issue foreclosed upon by Lamar’s failure to show that a confidential relationship existed among him, Lee, and Jennifer. On appeal, Lamar abandoned that claim; he instead argues he is entitled to an equitable lien. The chancery court can grant an equitable lien to prevent unjust enrichment “where it would be contrary to equity and good conscience for an individual to retain a property interest acquired at the expense of another.” Neyland v. Neyland, 482 So. 2d 228, 230 (1986).

¶6. Lee and Jennifer contend that this issue is procedurally barred on appeal because Lamar did not expressly seek an equitable lien in his complaint in the chancery court. The record reveals that the issue was suggested in the original pleadings, and it was clearly articulated in briefing and arguments prior to the judgment. Lee and Jennifer made no objection. “Where a party offers no timely objection, we treat the issue as having been tried by implied consent.” Queen v. Queen, 551 So. 2d 197, 200 (Miss. 1989). Thus, the question of an equitable lien is squarely before us on appeal.

¶7. The chancery court denied relief on this particular claim based on the statute of frauds. [Fn 1] The court noted that the Mississippi Supreme Court held in Barriffe v. Estate of Nelson, 153 So. 3d 613, 620-21 (¶36) (Miss. 2014), that “an equitable lien is not appropriate to enforce a contract that otherwise fails to meet the requirements of the statute of frauds.” “Under Mississippi’s statute of frauds, contracts involving the transfer of real property must be in writing.” Id. Our supreme court quoted, with approval, the New Mexico Supreme Court’s holding in Van Sickle v. Keck, 81 P.2d 707, 710 (N.M. 1938): “A court of equity will not relieve an individual from the operation of the statute of frauds, which requires that interest in lands be created by an instrument of writing, and impose an equitable lien upon the land in favor of one who makes improvements thereon knowing that the title is in another.” Bariffe, 153 So. 3d at 621 n.22.

[Fn 1] There might have been a potential issue with waiver of this defense because the statute of frauds is an affirmative defense that must be timely asserted by the defendant; and arguably it was not in this case. See Brown v. Gravlee Lumber Co., 341 So. 2d 907, 912 (Miss. 1977). But Lamar has not argued waiver, and, thus, he has waived the issue. See Thornton v. Freeman, 242 So. 3d 188, 190 (¶3) (Miss. Ct. App. 2018) (explaining that “waiver . . . can itself be waived”).

¶8. Lamar conceded that he knew the title to the property was held by Lee and Jennifer. So, like the chancery court, we are bound by the supreme court’s holding in Barriffe that the statute of frauds bars an equitable lien. This issue is without merit.

Lamar also asked for restitution to prevent unjust enrichment by Lee and Jennifer. The COA found no merit in that claim, either.

¶9. Finally, we address Lamar’s claim for money damages. He appears to argue he is entitled to restitution for unjust enrichment. Our analysis of this issue is complicated by the paucity of argument in the chancery court (and, indeed, on appeal). In Lamar’s complaint “for a constructive trust,” he also contended he was entitled to a money judgment for the money he gave Lee and Jennifer (or the money he allowed them to take). Lamar contended that Lee and Jennifer used their authority as joint owners of Lamar’s retirement account to transfer about $158,000 to their own bank account and then spent or converted it. Lee and Jennifer said Lamar transferred the funds and then used Lee’s debit card to spend most of the
money; the rest was given to them for living expenses while Lamar stayed with them and while Lee could not work while building the disputed workshop/apartment. Voluminous bank records were introduced at trial, but neither side made much effort to trace where the money went; both sides said the other would know how the money was spent. Lamar claims he is entitled to restitution for the value of the improvement and for the money that was taken above and beyond the realistic cost of constructing it, which comes out to about $120,000.

¶10. But despite alleging that he was entitled to a money judgment in his complaint, Lamar never expressly articulated a cause of action that entitled him to recover it; unjust enrichment is only addressed, in cursory fashion, in his contentions concerning constructive trusts and equitable liens (of which unjust enrichment is an element). Restitution is never mentioned at all. The chancery court, in its judgment, noted that Lamar sought money damages, but it did not address them directly except perhaps when it stated in closing that “all other relief is denied.” The chancellor did say he found Lee’s and Jennifer’s testimonies credible, and Lamar’s not; but he did not explicitly resolve the many of the factual disputes surrounding Lamar’s unjust enrichment theory, nor did he make any express finding that is dispositive of the claim.

¶11. This case is appropriate for the application of the oft-repeated maxim that “where a chancellor does not make explicit findings, [appellate courts] will assume that all disputed issues were resolved in favor of the appellees.” Ross v. Brasell, 511 So. 2d 492, 495 (Miss. 1987). Lee and Jennifer testified that Lamar gave them the money as a gift, without conditions. Lamar testified otherwise. The factual issue raised and the finding by the chancellor that the children were more credible than Lamar is sufficient to defeat Lamar’s unjust enrichment claim; there is nothing unjust in Lee and Jennifer being enriched by a gift, nor in Lamar not being able to take it back. See Cates v. Swain, 215 So. 3d 492, 496 (¶¶18-19) (Miss. 2013).

The Phantom Judgment

December 10, 2018 § 3 Comments

When is a final judgment not final … and not even a judgment?

That riddle was at the heart of the divorce case between Harold and Margie Arrington. On May 15, 2012, the chancellor signed a divorce judgment granting an irreconcilable differences divorce. For some reason the judgment was not filed with the chancery clerk until June 3, 2014. That’s 25 months after the judge signed it.

In the meantime, on August 23, 2013, Harold filed a withdrawal of his agreement to the divorce, following which he filed an amended complaint on the ground of desertion. After Margie filed an answer and counterclaim, Harold filed a motion to set aside the original judgment. The chancellor denied the motion noting that the divorce judgment was signed a year before the objection was filed. Harold appealed.

In Arrington v. Arrington, decided September 11, 2018, the COA reversed and remanded. Judge Griffis wrote for a unanimous court:

¶11. Mississippi Rule of Civil Procedure 58, titled “Entry of Judgment,” provides:

Every judgment shall be set forth on a separate document which bears the title of “Judgment.” However, a judgment which fully adjudicates the claim as to all parties and which has been entered as provided in M.R.C.P. 79(a) shall, in the absence of prejudice to a party, have the force and finality of a judgment even if it is not properly titled. A judgment shall be effective only when entered as provided in M.R.C.P. 79(a).

(Emphasis added). The Advisory Committee Notes to Rule 58 add that “[t]he ‘entry’ of the judgment is the ministerial notation of the judgment by the clerk of the court pursuant to Rules 38 and 79(a); however, it is crucial to the effectiveness of the judgment and for measuring time periods for appeal and the filing of various motions.” (Emphasis added).

¶12. Mississippi Rule of Civil Procedure 79, titled “Books and Records Kept by the Clerk and Entries Therein,” provides:

(a) General Docket. The clerk shall keep a book known as the “general docket” of such form and style as is required by law and shall enter therein each civil action to which these rules are made applicable. The file number of each action shall be noted on each page of the docket whereon an entry of the action is made. All papers filed with the clerk, all process issued and returns made thereon, all appearances, orders, verdicts, and judgments shall be noted in this general docket on the page assigned to the action and shall be marked with its file number. These entries shall be brief but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the
court and of the returns showing execution of process. The entry of an order or judgment shall show the date the entry is made. In the event a formal order is entered, the clerk shall insert the order in the file of the case.

(b) Minute Book. The clerk shall keep a correct copy of every judgment or order. This record shall be known as the “Minute Book.”

¶13. The Advisory Committee Note to Rule 79 adds [Fn omitted]:

Rule 79(a) specifies that the docket entries reflect the date on which entries are made in the general docket. Since several important time periods and deadlines are calculated from the date of the entry of judgments and orders, these entries must accurately reflect the actual date of the entries rather than another date, such as the date on which a judgment or order is signed by the judge. See, for example, Rule 58 mandating that a judgment is effective only when entered as provided in Rule 79(a), and Rule 59 which requires that motions to alter or amend judgments be filed within ten days after the entry of judgment.

¶14. Rule 58 clearly provides that “[a] judgment shall be effective only when entered as provided in Rule 79(a).” (Emphasis added). Rule 79(a) requires the clerk to keep a “general docket” and to enter “all . . . judgments.” Thus, we may conclude that a judgment is not final until it is recorded in the clerk’s general docket. M.R.C.P. 58, 79(a). See, e.g., Cleveland Nursing & Rehab. LLC v. Estate of Gully, 206 So. 3d 516, 521 (¶17) (Miss. 2016) (“Because the docket entry did not comply with Rule 79(a), the trial court did not abuse its discretion in finding that no judgment had been properly entered.”); Thompson v. City of Vicksburg, 813 So. 2d 717, 719-20 (¶11) (Miss. 2002) (Summary judgment was not a final appealable order because trial court did not enter a document styled “Final Judgment.”).

¶15. We find that, under Rules 58 and 79(a), the final decree signed by the chancellor was not final until it was entered by the chancery clerk on June 3, 2014.

Punch line: the judgment here was not effective as a judgment unless and until it was filed with the clerk per R79.

One quibble: In the Thompson v. City of Vicksburg case, the reversal was not due to the non-filing of a document styled “final judgment;” the reversal was due to the fact that there was no indication in the summary judgment that it was a final adjudication, and there was no other judgment in the record that appeared final. Remember that under R58, ” … a judgment which fully adjudicates the claim as to all parties, and which has been entered as provided in MRCP 79(a) shall, in the absence of prejudice to a party, have the force and finality even it is not properly titled.” In other words, by the express language of the rule, the court is supposed to look to substance rather than form.

“Quote Unquote”

December 7, 2018 § Leave a comment

“Why does Santa Claus come down the chimney on Christmas Eve? Because it soots him.”  —  Christopher Walter

“I stopped believing in Santa Claus when I was six. Mother took me to see him in a department store and he asked for my autograph.”  —  Shirley Temple

 

 

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Waiving a Motion by Inaction

December 5, 2018 § 1 Comment

When Christina and Billy Leblanc appeared for their divorce trial, also at issue was a contempt action that Christina had filed complaining that Billy had failed to pay the mortgage on the former marital residence as directed by the court in a temporary order. On the first day of trial Billy admitted in his testimony that he had not paid it as ordered.

On the second day of trial, however, the parties agreed to a consent to divorce that did not mention the contempt. The chancellor did not include an adjudication of contempt, and Christina appealed alleging several errors, including the non-adjudication of contempt. She contended that the chancellor should have awarded her a separate judgment for the mortgage arrearage.

In Leblanc v. Leblanc, decided October 23, 2018, the COA affirmed on this issue. Judge Wilson wrote for the unanimous court (Irving not participating):

¶69. As discussed above, the chancery court twice ordered Billy to pay the arrearage on the mortgage on the marital home, and Christina filed two contempt motions based on Billy’s failure to do so. Her second motion was still pending when trial began. On the first day of trial, Billy admitted that the mortgage was not current. He claimed that he was unable to pay it. Then, at the beginning of the second day of trial, the parties consented to an irreconcilable differences divorce. The chancery court’s final judgment awarded Christina the marital home, along with the mortgage. However, the court’s judgment did not specifically address Billy’s prior contempt or the arrearage. On appeal, Christina argues that the chancery court erred by not finding Billy in contempt and by not entering a separate judgment in her favor for the mortgage arrearage.

¶70. We conclude that the issue of Billy’s contempt was waived because the parties did not list contempt among the issues to be decided by the court. In an irreconcilable differences divorce, the issues that are to be decided by the court by the consent of the parties must be “specifically set forth.” See Miss. Code Ann. § 93-5-2(3) (Rev. 2013). “The language of section 93-5-2(3) is clear. A chancellor may decide contested issues in a divorce based upon irreconcilable differences. However, he is limited to the resolution of those issues specifically identified and personally agreed to in writing by the parties.” Myrick v. Myrick, 186 So. 3d 429, 433 (¶17) (Miss. Ct. App. 2016) (quoting Wideman v. Wideman, 909 So. 2d 140, 146 (¶22) (Miss. Ct. App. 2005)) (brackets omitted). Here, the parties agreed that the chancellor would decide issues related to child custody and support, equitable division, alimony, and insurance. Contempt was not mentioned when they consented to an irreconcilable differences divorce. Therefore, we hold that the issue was waived.

¶71. In addition, our general “rule is that a party making a motion must follow up that action by bringing it to the attention of the judge and by requesting a hearing upon it. It is the responsibility of the movant to obtain a ruling from the court on motions filed by him, and failure to do so constitutes a waiver of same.” Anderson v. McRae’s Inc., 931 So. 2d 674, 678 (¶10) (Miss. Ct. App. 2006) (emphasis added; quotation marks omitted). Here, Christina noticed her motion for a hearing on the first day of trial and mentioned the motion at the outset of trial; however, she did not request a ruling on the motion when she subsequently consented to an irreconcilable differences divorce, or at any time thereafter. Therefore, there is no “ruling from the [chancery] court” for this Court to review. Id. Accordingly, we conclude that Christina waived the issue by failing to obtain a ruling.

Okay, I get it that the issue was waived as a contested issue at this trial and for this appeal, but does that mean that Christina can’t ever recover what Billy didn’t pay? Does it mean that she permanently waived collection? Well, here is what Professor Bell said:

“The obligation to pay past-due temporary support survives a final judgment, even though the temporary support is replaced by a permanent support order. A payor was properly held in contempt for failure to make temporary child support, alimony, and mortgage payments totaling $2,900.” [Citing Langdon v. Langdon, 854 So. 2d 485, 496 (Miss. App. 2003). Also citing Baier v. Baier, 897 So. 2d 202, 205 (Miss. App. 2005) for the proposition that temporary arrearages may not be forgiven]. Bell on Mississippi Family Law, 2d Ed., § 14.02[3].

So it would appear that Christina may get another bite at that crabapple.

I see pleadings raising all sorts of issues and defenses, and motions filed along the way, that are never called up before the court for hearing. You need to heed the court’s warning that failure to bring those up for the court to address will waive them so that they can’t be raised on appeal.

How You Name Your Pleadings Can Matter

December 4, 2018 § Leave a comment

Shortly after adoption of the MRCP the MSSC ruled that judges were to look past the form of motions and pleadings and were to consider the substance. Meaning that you could style a complaint as an “Application” or an answer as a “Response,” and the judge is supposed to treat it as its substance requires.

That’s a pretty harmless concept on the face of it, and it would seem to promote justice over formality. For lawyers who get too loosey-goosey with their filings, though, it can create some possibly damaging mischief.

A particular species of this problem is ambiguous labeling, such as occurs when lawyers file a “Motion to Reconsider” without specifying which rule they are invoking. You see, there is no such thing under the MRCP as “reconsideration,” and using that term without more throws into the judge’s lap the issue of how to treat it. In a specially-concurring opinion in Maness v. K&A Enterp, decided August 9, 2018, by the MSSC, Justice Maxwell eloquently described the how this can come back to bite you:

¶67. I write separately to address the Manesses’ so-called motions “for reconsideration.” While a harmless issue here, this case illustrates the confusion often created by such motions.

¶68. Technically, “[t]he Mississippi Rules of Civil Procedure do not provide for a motion for reconsideration.” McBride v. McBride, 110 So. 3d 356, 359 (Miss. Ct. App. 2013). Rule 54(b) does makes clear that a decision, order, or judgment that disposes of less than all claims by all parties is interlocutory and therefore “is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” Miss. R. Civ. P. 54(b). But once a judgment becomes final, the trial court loses its inherent “free[dom] to reconsider and reverse its decision for any reason it deems sufficient[.]” Cabral v. Brennan, 853 F.3d 763, 766 n.3 (5th Cir. 2017) (quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1075 n.14 (5th Cir. 1994) (en banc)).

¶69. Instead, the trial court’s power to modify a final judgment is limited by Rules 59 and 60. See Miss. R. Civ. P. 59, 60. Under Rule 59, the trial court may grant a new trial or alter the judgment “if convinced that a mistake of law or fact has been made, or that injustice would attend allowing the judgment to stand.” McNeese v. McNeese, 119 So. 3d 264, 272 (Miss. 2013). The trial court may also grant a new trial under Rule 59(a) based on newly discovered evidence. Id. Under Rule 60(a), the trial court may correct “[c]lerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission . . . .” Miss. R. Civ. P. 60(a). And under Rule 60(b), a trial court, upon motion,
“may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons”:

(1) fraud, misrepresentation, or other misconduct of an adverse party;

(2) accident or mistake;

(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;

(6) any other reason justifying relief from the judgment. [Fn 13]

Miss. R. Civ. P. 60(b).

[Fn 13] Though, at first blush, Rule 60(b)(6) could be construed as empowering trial courts to reconsider their prior judgments for “any other reason,” we have been clear that “[r]elief under Rule 60(b)(6) is reserved for extraordinary and compelling circumstances.” Briney
v. U.S. Fid. & Guar. Co., 714 So. 2d 962, 966 (Miss. 1998) (citations omitted).

¶70. To be granted any of the above relief requires more than mere “reconsideration.” Yet over the years, Mississippi practitioners have filed a slew of post-trial motions generically titled “motions to reconsider.” McBride, 110 So. 3d at 359-60. And once filed, courts are left to decipher what type of motion is actually being filed based on the timing and the substance of the request. A Rule 54(b) motion to revise an interlocutory order? A Rule 59(e) motion to alter or amend a final judgment? A Rule 59(a) motion for a new trial? A Rule 60(a) motion to correct an omission or clerical mistake? Or a Rule 60(b) motion for relief from a final judgment? See, e.g., City of Jackson v. Jackson Oaks Ltd. P’ship, 792 So. 2d 983, 984-85 (Miss. 2001) (holding that the trial court erred by failing to treat a party’s postjudgment motion, which was filed after the time limitation to file a Rule 59(e) motion, as a Rule 60(b) motion); Woods v. Victory Mktg., LLC, 111 So. 3d 1234, 1236 (Miss. Ct. App. 2013) (“The timing of the motion for reconsideration determines whether it is a Rule 59 or Rule 60(b) motion.”).

¶71. That is exactly what the chancellor had to do here. Faced with a “Supplemental Motion to Reconsider” and a “Motion to Reconsider,” it is understandable that the chancellor treated the Manesses’ motion as a Rule 59(e) motion to alter or amend, given that they put forth the reasons for granting a Rule 59(e) motion as justification for setting aside the grants of partial summary judgment. But, as the Manesses point out on appeal, a partial grant of summary judgment is a nonfinal order. And under Rule 54(b), the trial court may always set aside a nonfinal decision for any reason it deems just. Cabral, 853 F.3d at 766 n.3 (“[T]he higher standard in Rule 59(e) reflects the fact that judgment has already been entered, while the `more flexible’ Rule 54(b) standard reflects the district court’s inherent power to grant relief from interlocutory orders `as justice requires.'” (quoting Cobell v. Jewell, 802 F.3d 12, 25-26 (D.C. Cir. 2015))).

¶72. So the Manesses are right. The trial judge could have “reconsidered” his interlocutory decision to grant partial summary judgment without requiring the Manesses to meet the more “exacting” standard of Rule 59(e). Cabral, 853 F.3d at 766. But in this case, I fail to see how the motion misidentification prejudiced the Manesses. Like the appellants in the case they rely on, Cabral, the Manesses “do[ ] not explain how [they] could have been harmed by the procedural error.” Id. Beyond pointing out the trial court applied a more rigorous Rule 59(e) standard to a Rule 54(b) motion, they fail to demonstrate how the trial court’s applying the correct standard would have led to a different outcome. Indisputably, K&A was entitled to summary judgment on the issues of liability and damages. So the trial court could hardly be held in error for refusing to revisit these decisions prior to their becoming final.

¶73. Here, the Manesses’ using the Rule 59(e) standard to argue a Rule 54(b) motion led to harmless procedural error. But that may not hold true for every so-called “motion for reconsideration.” Motions for relief under Rules 54(b), 59(a), 59(e), 60(a), and 60(b) are not interchangeable. And courtroom lawyers would be wise not only to appreciate the differences between these rules but also label their motions according to the precise relief they seek.

For a number of posts where I have talked about this issue, enter the word “reconsideration” in the search box above.

Separate Maintenance and the Wife’s Material Contribution to the Separation

December 3, 2018 § Leave a comment

The chancellor ordered Rickey McCarley to pay separate maintenance to his wife, Kellie. Unhappy with this result, Rickey appealed, arguing that Kellie had materially contributed to the separation and thus was not entitled to separate maintenance.

In McCarley v. McCarley, handed down August 21, 2018, the COA affirmed. Judge Carlton’s opinion:

¶22. This Court has held that “[a] chancellor may award separate maintenance when (1) the parties have separated without fault by the wife and (2) the husband has willfully abandoned the wife and refused to support her.” Williams v. Williams, 224 So. 3d 1282, 1285 (¶9) (Miss. Ct. App. 2017) (citing Jackson [v. Jackson], 114 So. 3d [768] at 775 (¶17) [(Miss. App. 2013)]. In order to receive an award of separate maintenance, a wife does not have to be blameless, “but her (mis)conduct must not have materially contributed to the separation.” Id. (quoting Daigle v. Daigle, 626 So. 2d 140, 145 (Miss. 1993)). In other words, because an award of separate maintenance arises from equitable principles, “equity requires that . . . the requesting spouse . . . show [that] no significant conduct on her part negatively impacted the marriage or contributed to the separation.” Jackson, 114 So. 3d at 774 (¶16); [Fn omitted] see also King v. King, 246 Miss. 798, 152 So. 2d 889, 891 (1963) (holding that where a wife’s fault regarding the separation “is equal to or greater than that of her husband,” it may serve as a defense to the wife’s suit for separate maintenance.).

¶23. In Jackson, 114 So. 3d at 776 (¶21), we reversed the chancellor’s award of separate maintenance to the wife, Linda, after finding that the chancellor failed to first determine whether Linda materially contributed to the separation. This Court explained that “[t]he equitable relief of separate maintenance requires the requisite evidence of a separation without fault of the wife as well as evidence showing no significant misconduct on her behalf materially contributed to the separation of the parties.” Id. The chancellor’s findings below reflected that “Linda asserted that she wanted to work things out with [her husband,] Paul; that she still loved him; and that she would reconcile if Paul met certain unspecified conditions.” Id. at (¶20). This Court explained, however, that Linda bore the burden of establishing in the record not only a “present willingness to reconcile,” but also “that she had not engaged in significant marital misconduct contributing to the separation.” Id. This Court’s review of the record revealed that Paul separated from Linda after a five to six year period during which Linda “adamantly proclaim[ed] no love for Paul; secretly conduct[ed] financial dealings; fail[ed] to provide companionship or other support for the relationship; . . . demand[ed] [Paul] leave the marital home[;] [and] . . .  repeatedly reminded [Paul] that the marital house and land were hers and that he held no interest in the property.” Id. at 777-78 (¶26). This Court determined that Linda’s actions during this time period constituted marital fault and ultimately held that Linda failed to provide substantial evidence to show that “no significant misconduct on her behalf contributed to the separation.” Id.

¶24. In Tackett v. Tackett, 967 So. 2d 1264, 1267 (¶9) (Miss. Ct. App. 2007), we found no error in the chancellor’s award of separate maintenance to the wife, Kim. This Court reiterated that a “wife need not be totally blameless, and an award of separate maintenance may still be appropriate so long as the wife’s conduct did not materially contribute to the separation.” Id. In Tackett, Kim admitted that “she was partly to blame for the couple’s separation[,] but [she] maintained that [her husband] Tim was more this claim. Id. The record also showed that Tim refused Kim’s suggestion to attend marriage counseling. Id. This Court ultimately held that after reviewing the record, “we cannot say that the trial court manifestly erred in finding that Kim did not substantially contribute to the separation, or that such a decision is not supported by substantial evidence.” Id.

¶25. In the case before us, the chancellor’s amended order sets forth her finding that Kellie “is without material fault in the separation and . . . [Rickey] abandoned [Kellie] and has refused to provide any support. Therefore, [Kellie] has met the burden of proof necessary to support her claim for separate maintenance.” The record reflects that at trial the chancellor heard testimony from Kellie, Rickey, Penny, and Rickey’s brother, Roger. Kellie testified that she and Rickey got married in November 1979 and separated in October 2015, after thirty-six years of marriage. Kellie stated that she would characterize the last five years of her marriage as “okay,” explaining that although they “might not have had the happiest marriage,” they were “content.” Kellie admitted that, although she and Rickey had a lot of problems in their marriage, she ultimately believed “that marriage is for better and worse, until death do us part.” Kellie testified that she and Rickey met in April 2016 to discuss whether they should reconcile or seek a divorce. Kellie stated that Rickey informed her that “he would think about what we discussed,” but she “never heard from him.”

¶26. Kellie testified that during the last year of their marriage, Rickey began drinking alcohol excessively. Kellie admitted that Rickey’s drinking did not affect his performance at work, but she explained that most of his drinking occurred on the weekends or on his days off. Kellie also testified that she discovered bills for a credit card and a loan. Kellie explained that she was not previously aware that Rickey had taken out a loan or obtained a new credit card before her discovery of these documents.

¶27. Regarding physical affection, Kellie testified that she was affectionate with Rickey and often hugged and patted him. However, Kellie testified that she and Rickey had not engaged in a sexual relationship since early 2015 and that they slept in separate bedrooms. Kellie stated that when she broached the subject with Rickey, he informed her that his medication prevented him from having an erection. Kellie testified that she attended one of Rickey’s doctor’s appointments where he explained the issue to the doctor, and the doctor responded that Rickey had to choose between “either tak[ing] some medicine to keep him alive or hav[ing] sexual intercourse.” Kellie admitted that she did not know if Rickey was still taking the medicine.

¶28. Roger characterized Rickey and Kellie’s marriage as “not happy.” Roger testified that he never observed Kellie expressing affection towards Rickey. Roger also testified that Rickey was unfaithful to Kellie on a separate occasion earlier in their marriage.

¶29. Rickey opined that his and Kellie’s marriage was not salvageable. Rickey testified that he and Kellie had not been physically affectionate over the last five years of their marriage, stating, “Every time I went to kiss her, she would turn her cheek on me.” Rickey testified that Kellie asked him to give up alcohol but he refused, explaining “I didn’t want to give up the beer.”

¶30. Rickey testified that when he left the marital home, he “wasn’t interested in another woman,” and he did not leave “because of another woman.” Rickey maintained that he was not romantically involved with Penny prior to his and Kellie’s separation in October 2015, and he testified that he did not begin dating Penny until after he had moved out of the marital home. He admitted that he and Penny worked together for years, and that they had talked on the phone for “one or two years” prior to his and Kellie’s separation. Rickey stated that he did not have sexual relations with Penny until after he moved in with her. Penny also testified and confirmed that she and Rickey did not become romantic until December of 2015.

¶31. After reviewing the testimony at trial, we find that the record contains substantial credible evidence supporting the chancellor’s finding that Kellie did not materially contribute to the separation. We therefore affirm the chancellor’s judgment. Knighten [v. Hooper], 71 So. 3d [1208,] at 1209 (¶5) [Miss. App. 2011)].

Nothing earthshaking here. The case does illustrate the way that a chancellor may process and weigh the proof of marital fault and its impact on separation.