September | 2010 | The Better Chancery Practice Blog

“QUOTE UNQUOTE”

September 16, 2010 § Leave a comment

“Blessed is the man who, having nothing to say, abstains from giving us wordy evidence of the fact.” — Elbert Hubbard

“Silence is not a thing we make; it is something into which we enter. It is always there. … all we can make is noise.” — Mother Maribel of Wantage

“Ask me about my vow of silence” — Bumper sticker

ANATOMY OF A WILL CONTEST: PROVING LACK OF TESTAMENTARY CAPACITY

September 14, 2010 § 6 Comments

Before the contestants in a will contest may proceed, the proponents of the will must first establish their position that the will is valid.

In Estate of Holmes, 961 So.2d 674, 679 (Miss. 2007), the Mississippi Supreme Court stated:

The proponents of the will meet their burden of proof by the offering and receipt of the will into evidence and the record of probate. [Citation omitted] The proponents make a prima facie case solely on this proof. Id. The burden then shifts to the contestants to overcome the prima facie case, but the burden of proof remains with the proponents to show by a preponderance of the evidence that the testator had capacity. Id.

The proponents typically make a prima facie case by admitting into evidence the will, the witness affidavits, the order granting letters testamentary, and the letters testamentary.

In order to determine testamentary capacity, the trial court must consider three factors:

Whether the testator had the ability at the time of making his will to understand the nature and effect of his acts.
Whether the testator had the ability at the time of making his will to understand the natural objects or persons to receive his bounty and their relation to him; and
Whether the testator was capable of determining at the time of making the will what disposition he desired to make of his property. Estate of Holmes, Id.

“In considering all the evidence, some testimony will receive greater weight. The testimony of subscribing witnesses receives greater weight than the testimony of witnesses who were not present at the will’s execution … The date of execution is the most important date, given that we recognize that a testator may not possess capacity one day and within several days have the capacity to execute a valid will.” Rocco v. Sims, 918 So.2d 864, 871-872 (Miss. App. 2005).

The same capacity that is required to make a valid deed is required the for making a valid will. Whitworth v. Kines, 604 So.2d 225, 228 (Miss. 1992). Since the party seeking to set aside a deed must prove by clear and convincing evidence that the grantor lacked mental capacity at the time of execution, and not simply that the grantor suffered general weakness. In re Conservatorship of Cook, 937 So.2d 467, 470 (Miss. App. 2006), it would follow that the same standard of proof would apply to a case in which the party seeks to set aside a will on the same basis.

IS MY DIVORCE FINAL? YES. UH, NO. OKAY, YES. AT LEAST I THINK IT IS

September 13, 2010 § 2 Comments

We all hope that when a judgment of divorce on the ground of irreconcilable differences is entered, the result is a final resolution of the parties’ marital strife. Sometimes, though, the disputes come reeling back to life, zombie-like, careening through the trial courts, or try to, anyway. Consider:

In Irby v. Estate of Irby, 7 So.2d 223 (Miss. 2009), the Mississippi Supreme Court finally laid to rest the troublesome question whether a divorce granted on the ground of irreconcilable differences is void because the parties failed to withdraw their contested pleadings. In that case, the husband and wife were divorced based on a consent. Husband died shortly after the judgment was entered, and wife sought to set aside the judgment on the basis that the parties’ contested pleadings had not been withdrawn before the judgment was entered. The Supreme Court held that the consent operated as a withdrawal of the contest, and that it was not necessary to take any other action to withdraw pleadings.

The Irby decision effectively reversed the Court of Appeals decision in Pittman v. Pittman, 4 So.3d 395 (Miss. 2009), rendered only six weeks before Irby. The reversal apparently did not go down well with the Court of Appeals, however. In Sellers v. Sellers, 22 So.3d 853 (Miss. App. 2009), decided 2 months after Irby, the Court of Appeals fired back its disagreement with Irby in lengthy dicta that had nothing to do with any issue raised in the Sellers case. Having gotten that off their chest, the Court of Appeals six months later again followed Irby in the case of Cossey v. Cossey, 22 So.3d 353, 357 (Miss. App. 2009), where they stated through figuratively clenched teeth, “We reach this decision, as we did in Sellers, by strictly applying the supreme court’s recent interpretation of section 95-5-2(3) and (5).”

Bottom line is that when you have a consent that meets all the statutory requirements, you do not need to withdraw contested pleadings. But why invite scrutiny? It’s simple to include in your consent express language that the parties agree that all contested pleadings are withdrawn and dismissed. Or, for an even greater comfort level, you can file an agreed motion followed by an agreed order withdrawing the contest.

The issue in McDuffie v. McDuffie, 21 So.3d 685 (Miss. App. 2009) was whether the Chancellor acted improperly in denying Michael McDuffie’s request to withdraw his consent after the trial had begun. Michael and his wife Kathi had entered into a consent to divorce, which met all of the statutory requirements and had been duly filed. The trial was percolating along nicely when, much to Michael’s dismay, Kathi admitted in her testimony that she had committed adultery. Stung by the revelation, Michael moved to withdraw his consent, which the Chancellor refused, based on the facts that the consent had been filed three years before the trial was commenced, several motion hearings had intervened, and the trial had begun. The Court of Appeals upheld the Chancellor’s decision based on § 93-5-2, MCA, which states in part that the consent, ” may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto.” It was not error in the circumstances for the court to refuse to grant leave to withdraw.

Can the trial court grant a divorce on irreconcilable differences where there is no pleading properly before the court requesting it? In Tyrone v. Tyrone, 32 So.3d 1206 (Miss. App. 2009), husband had filed a complaint for separate maintenance, and wife filed a response that included a counterclaim for an irreconcilable differences divorce and a motion to dismiss husband’s complaint. The trial judge dismissed husband’s pleading, but never conducted a hearing on wife’s counterclaim for divorce. Husband subsequently filed a second complaint for separate maintenance, and wife responded with a motion to dismiss. In a later hearing dealing with some contempt issues, the trial judge urged the parties to settle the matter as an irreconcilable differences divorce, which they did, and he granted a divorce on the ground of irreconcilable differences. Wife appealed, and the Court of Appeals reversed.

If you read Tyrone, you will doubtless be struck by the tortuous route from pleading to final result at the trial level. If you come away with the conclusion that there must be a pleading before the court, filed more than sixty days previously, requesting irreconcilable differences, and a consent or property settlement agreement that meets the statutory requirements, that is enough.

A similar result was reached in Johnson v. Johnson, 21 so.3d 694 (Miss App. 2009), where the trial court granted a divorce on the ground of irreconcilable differences where there was no agreement, and the parties had not executed a consent.

Perhaps the most zombie-like case of all is Henderson v. Henderson, 27 So.3d 462 (Miss. App. 2010), in which the trial judge signed a judgment of divorce on April 23, 2002, but the judgment was never filed with the clerk. Some time later, the case was dismissed for inaction pursuant to Rule 41(d), MRCP. In 2005, husband discovered the omission and filed a Complaint for Divorce on the ground of desertion. In 2006, wife filed a motion asking the Chancellor to correct the oversight by entering the judgment nunc pro tunc to April 23, 2002, which the judge did. Husband appealed, complaining that it was error for the judge to enter the judgment after had filed his pleading on a fault ground. The Court of Appeals disagreed, pointing out that, “[C]ourts may by nunc pro tunc orders supply omissions in the record of what had previously been done, and by mistake or neglect not entered,” and that the later judgment is effective on the date that it should have been entered but for the omission. Thus, husband’s pleading had no effect on the ultimate outcome.

EVER IS A LITTLE OVER A DOZEN YEARS

September 12, 2010 § Leave a comment

W. Ralph Eubanks is publishing editor at the Library of Congress and a native of Covington County, Mississippi. His book, EVER IS A LONG TIME, is a thought-provoking exploration of Mississippi in the 1960’s, 70’s, and the present, from the perspective of a black child who grew up in segregation and experienced integration, and that of a young black man who earned a degree from Ole Miss, left Mississippi vowing never to return, achieved in his profession, established a family, and eventually found a way to reconcile himself to the land of his birth.

It was his children’s inquiries about their father’s childhood that led Eubanks to begin to explore the history of the dark era of his childhood. In his quest for a way to help them understand the complex contradictions of that era, he came across the files of the Mississippi Sovereignty Commission and found his parents’ names among those who had been investigated, and he became intrigued to learn more about the state that had spied on its own citizens.

Eubanks’ search led him to Jackson, where he viewed the actual files and their contents and explored the scope of the commission’s activities. He had decided to write a book on the subject, and his research would require trips to Mississippi. It was on these trips that he renewed his acquaintance with the idyllic rural setting of his childhood and the small town of Mount Olive, where, in the middle of his eighth-grade school year, integration came to his school.

There are three remarkable encounters in the book. The author’s meetings with a surviving member of the Sovereignty Commission, a former klansman, and with Ed King, a white Methodist minister who was active in the civil rights movement, are fascinating reading.

The satisfying dénouement of the book is Eubanks’ journey to Mississippi with his two young sons in which he finds reconciliation with his home state and its hostile past.

If there is a flaw in this book, it is a lack of focus and detail. The focus shifts dizzyingly from the Sovereignty Commission, to his relationship with his parents, to his rural boyhood, to life in segregation, to his own children, to his problematic and ultimately healed relatiosnhip with Mississippi. Any one or two of these themes would have been meat enough for one work. As for detail, the reader is left wishing there were more. Eubanks points out that his own experience of segregation was muted because he lived a sheltered country existence, and his memories of integrated schooling are a blur. For such a gifted writer whose pen commands the reader’s attention, it is hard to understand why he did not take a less personal approach and expand the recollections of that era perhaps to include those of his sisters, or other African-Americans contemporaries, or even the white friends he had.

This is an entertaining and thought-provoking book, even with its drawbacks. I would recommend it for anyone who is exploring Mississippi’s metamorphosis from apartheid to open society.

The title of this book has its own interesting history. In June of 1957, Mississippi Governor J. P. Coleman appeared on MEET THE PRESS. He was asked if the public schools in Mississippi would ever be integrated. “Well, ever is a long time,” he replied, ” [but] I would say that a baby born in Mississippi today will never live long enough to see an integrated school.”

In January of 1970, only twelve-and-a-half years after the “ever is a long time” statement, Mississippi public schools were finally integrated by order of the Fifth Circuit Court of Appeals, a member of which, ironically, was Justice J. P. Coleman, former governor of Mississippi.

Eubanks

A SOMBER ANNIVERSARY

September 11, 2010 § Leave a comment

September 11, 2001. Nine years ago today.

CHANCERY COURT IN DAYS OF YORE, PART DEUX

September 10, 2010 § 2 Comments

[Chancery Court in Days of Yore, Part One and “High Waters” and Burlap Suits are two older posts that touch on some of these same themes]

Recently in a ramble through the Uniform Chancery Court Rules (UCCR) I stumbled on a couple of curious throwbacks to pre-MRCP practice. You can read and scratch your head over these historical anomalies in Chapter 2 of the rules, dealing with pleadings. I won’t repeat them here, but they include references to bills of complaint, cross-bills and demurrers, as in “Trial not Delayed Because Demurrer Overruled.”

The references to those ancient and outmoded engines of the law got me thinking about that pre-MRCP era when the practice of law was, well, quainter than it is today. So travel back in time with me to 1979, when the “new rules” were not even yet a rumor, being two years away from adoption and four years from going into effect. Things were different then. Or maybe they were really the same, in a different way.

In 1979, Judge Neville ruled his courtroom like a Teutonic prince. He was sovereign, dictator, despot and all-wise, solomonic adjudicator. There were no “factors” for the Chancellor to consider. The Supreme Court understood the role of the Chancellor as finder of fact in complex human relationships and respected him as such. That was back in the day when most appellate judges had trial court experience, including Chancery experience, and the Court of Appeals had not yet been invented.

It’s trial day in a divorce you filed for a friend’s sister. Counsel opposite, a grizzled veteran, has filed a demurrer attacking your Bill of Complaint for Divorce, and the demurrer will be taken up in chambers before the trial. Whether the demurrer is granted in whole or in part, the trial will follow as night follows day because, “Trial not Delayed Because Demurrer Overruled.” The judge could grant a postponement if your case is gutted by the demurrer, but you know Judge Neville isn’t likely to do so, and your client wants this over with anyway.

You settle your client into the courtroom (now Judge Mason’s courtroom) for the duration. You’ve already explained to her that the judge may strike out part of the pleadings you filed on her behalf, but that you’re confident everything will be fine. That’s what you told her, not what you really feel. What you really feel is a knot in your stomach the size of Mount Rushmore.

You gather your file and leave your client in the dark-panelled court room, where dour portraits of previous Chancellors who practiced their alchemy in that chamber, their medieval visages glowering down disdainfully as if they sniff disagreeably the fetid aroma of the weaknesses in your case, stare balefully down on your misery.

In Judge Neville’s dim chambers (Cindy James’ office today), you wait while he relieves himself in the facilities. The air is redolent with fragrance of his ever-present pipe. There are wisps of smoke clinging to the ceiling like disembodied spirits. On the dark-panelled wall is a plaque that reads:

“If you are well, you have nothing to worry about; If you are sick, you have two things to worry about: whether you will live or whether you will die; If you live you have nothing to worry about; If ou die, you have only two things to worry about: whether you will go to heaven or whether you will go to hell; If you go to heaven you have nothing to worry about; If you go to hell, you’ll be so busy greeting your old friends that you won’t have time to worry!”

Before long, your older and more experienced opponent, wielding his superior knowledge of the byzantine rules of pleading, has prevailed, and the negative pregnants and other flaws in your pleading have been lopped away like infected warts. Before you know it, the 36-page Bill of Complaint for Divorce that you proudly filed has been whittled town to a dozen miserable pages.

Before turning you loose for the court room, the judge takes the opportunity to use his best cajolery skills to try to settle the case, telling you how he would rule on this issue and that, and even cussing you good for wasting the court’s precious time. He runs his hand over his balding head, adjusts his glasses, and you can see the trademark red flush spreading up his cheeks toward his forehead, but you stand your ground because you’ve already tried to no avail to talk your clint into a reasonable settlement.

You emerge into the comparatively brightly-lit court room and flash a brave smile at your client. Her attempt at looking brave looks more like crestfallen to you.

The floor is cork, scarred from years of cigarette burns. Brass spitoons, polished and emptied weekly by a jail trusty, are set on each side of the court room, one for the complainant and one for the defendant. In a corner plainly visible to the lawyers is a Coca-Cola clock; the art deco clock built into another wall stopped years ago at 10:05.

In the court room, the old lawyer has taken his place. He is chain smoking cigarettes. As he finishes one, he drops it on the floor and grinds it out under the sole of his two-tone wing-tips on the cork floor. He lights another and removes his linen jacket, revealing his short-sleeve shirt. He is wearing a cheap clip-on tie with Weidmann’s soup stains. His polyester slacks are held up by suspenders. His greased head gleams in the court room light. He is no fashion plate, but he is a dangerous adversary who only a few minutes ago gutted your case. He will smoke like that through the trial, his jacket hanging limply on his chair as he carves up your witnesses.

Your office file has only a few papers in it. There is no voluminous discovery, because you don’t get to propound interrogatories and requests for production. The only discovery is to ask for a Bill of Particulars. The rules of pleading are so arcane and complex that a misplaced adjective just might doom an essential element of your case. The older lawyers have mastered the strange warcraft of pleading and gleefully ambush you from the legal thickets, catching you unawares and pillaging the smoking ruins of your lawsuit.

As the older lawyer tends to other preparatory business, he lays his cigarette on the edge of the table, and the burning end inflicts yet another scar into counsel’s table, adding one more to the many other burn marks. He sticks the cigarette back into his mouth and approaches you to show you some document, wreathing your face in a fog of smoke and raining ashes on the natty pin-striped suit you bought from Harry Mayer (the elder) only last week.

Judge Neville takes the bench, his smoking pipe emitting inscrutable signals, clad in his customary dark suit. Chancellors did not wear a black robe back then, but he is wearing his black suit today, probably in mourning for my case, you muse. Your voice quavers as you read your pleadings into the record for the court, followed by the older lawyer. While you are struggling through the reading, Judge Neville is puffing pensively on his pipe and whittling strenuously on a cedar plug. Shavings curl slowly at first, and then furiously, as the pleadings pour from your mouth into the record for God and all the world to hear, the flaws and weaknesses drawing into clear focus with every heretofore and to-wit, and your spirits sag at the prospect of sour defeat.

By agreement the grounds for divorce are presented first, and the judge will rule whether a divorce will be granted. You call the opposing party first and he denies everything. Your client then testifies unconvincingly about her husband’s mistreatment. Her performance on cross is frightful. The corroborating witness might as well have been in Peru when the offending conduct is alleged to have occurred. Judge Neville ponders and whittles, maufacturing acrid clouds from his pipe. Tension builds until the judge intones his opinion that, “The grounds for divorce are not strong, but the court finds that these parties need to be divorced, and so I will grant the Complainant a divorce.” Whew. It was fairly common for Chancellors to do that back then, but it’s still a relief to get over that hump.

You rise to call your first witness on the remaining issues, but Judge Neville interrupts you in his stentorian tone, “Suh, I will see the lawyuhs in chambuhs,” and he leaps to his feet and bounds out of the court room and into his office, his pipe jutting decisively out of his face. You know what is coming. It’s the arm-twisting conference where the Judge, now that he’s granted the divorce, will bring all of his considerable persuasive power and intimidation to bear. In chambers he wheedles, threatens, sweet-talks, cajoles, cusses and pounds his desk, demanding that you settle, or else.

You confer with your client who is now more amenable to a settlement, having been tenderized by opposing counsel. A few more sessions with the Chancellor and the case is settled.

Somehow you paint the best face on your performance for your client. She’s not thrilled with the settlement, but it’s not really bad for those days: She gets her divorce and custody of the baby; her ex-husband will have to pay a respectable $35 a week for child support (her best friend got a divorce last month and got only $60 a month; after all, there were no statutory child support guidelines then); her ex gets the house because it is titled only in his name (no equitable distribution then; title controlled); she gets the 1971 Dodge, and he will pay the $65 monthly note; she will have to pay the $120 McRae’s bill; she will get the living room and bedroom suites, baby furniture and the 19-inch RCA black-and-white television, and he will get the 19-inch Westinghouse color tv. She’s not terribly happy, but all in all, she’s fairly satisfied that she got good value for the $250 that she paid you to handle her contested divorce.

In the clerk’s office, you stop to visit with Mr. M.B. Cobb, the gentlemanly Chancery Clerk, and deputy clerk Joyce Smith, who try to console you about your misfire in court. That new young deputy clerk, Rubye Hayes, is disgruntled about something, so you try not to lay your already-bruised ego in her path.

Leaving the court house, you meander over to the Southern Kitchen where you find the company of jovial lawyers and even your older adversary scarfing down coffee and pie, as they do every day. You pull up a chair and order a comforting slice of lemon icebox pie, and before your first forkful, you are the butt of their ribbing about how you folded your hot hand when Neville called your bluff. You fight not to blush, but you can’t help but smile with the satisfaction of knowing that they only treat colleagues that way, and that much of their humor is part painful experience and part shared pain.

It’s nearly 10:30, and you head back to your office. You wonder whether you’ll get to finish reading that new John D. MacDonald detective novel or whether you’ll have some work to do.

Back at the office, you have two new clients awaiting, and you receipt them and open files in time for lunch. But before leaving, you ask your secretary to type up the pleadings, which will be on legal-sized paper, the original on bond, and the several copies made with carbon paper on onion-skin; you can’t yet afford the latest technological advance: an IBM memory typewriter. Word processors and computers are unknown. You prefer carbons to photocopies (all of which were called “xerox copies” back then) because your copier, like most, makes sepia-colored copies on slick, coated paper from a roll in the machine, and the copies are not favored by the judges because they tend to curl up and are hard to handle, but worst of all, they tend to turn dark or black over time and become illegible.

Ordinarily you would head over to Weidmann’s to sit at the lunch counter over a vegetable plate with cracklin bread and see many of the people you know, or to the Orange Bowl for a cheeseburger, but today you’ve decided to recover from your court room wounds by spending the afternoon on a friend’s lake, casting crickets on a quill with a fly rod for chinkapins and having a few cool ones. You stop at the bait shop next to Anderson Hospital and visit with James Elmer Smith while he scoops up your crickets. One great thing about being out on the lake: no one will bother you there because there were no cell phones then; in fact, many people still had dial telephones.

On your way out to the lake you think to yourself what a good life you have and how even a disappointing day in court is not so bad in the whole flow of things. And tomorrow is a whole, new day.

GETTING DONE WHAT IS ORDERED TO BE DONE

September 9, 2010 § Leave a comment

The court ordered the opposing party to convey her interest in the homestead to your client, but it’s been a month and you still don’t have the executed deed. Now your client is calling about the riding lawn mower and big-screen tv he was supposed to get. His ex claims she doesn’t know anything about them, but he sees them at her place every time he goes to pick up the children for visitation.

The attorney on the other side has given up in exasperation. She is not having any success in getting her client to cooperate, and she asks you to quit calling her; she considers her representation at an end.

What to do?

Of course, you can file a contempt action, but there are a couple of other avenues.

Rule 70(a), MRCP, provides that you can ask the court to appoint some other person, the Chancery Clerk for example, to execute and deliver that deed. And any cost of getting it done is at the cost of the recalcitrant party. The resulting deed with the court’s order will have “like effect as if done by the party.”

Better yet, next time get the court to include language in the judgment divesting title from the other party and into your client, as provided in Rule 70(b), MRCP. That would eliminate the need to get a deed signed, and, after all, the purpose and effect of the deed is to divest title from the other party into your client. The rule says that “such judgment has the effect of a conveyance executed in due form of law.”

As for the riding lawn mower and tv, Rule 70(c), MRCP may help you out. It states that a certified copy of the judgment or court order shall be sufficient authprity for the sheriff in the county where the property is located to seize it and deliver it to your client. Only problem here is that most attorneys do not put enough information into the record for a sheriff, much less a judge, to determine whether the riding lawn mower and tv your client says he is to seize are really the ones subject to being seized. What is the sheriff to do when the ex-wife claims that this riding lawn mower is her separate property purchased since the separation, and that she does not know where the marital mower is? Does the sheriff seize it and hope that she is lying or that his liability insurance will pay any damages? Or does he hand your client back his papers, shrug his shoulders, and return to his patrol car for the next job at hand? I would choose the latter, if I were the sheriff. Best practice is to be sure there is enough information, such as make, model, color, serial number and any other identifying information you can get in the record and the judgment to back up your client’s claim to possession.

“QUOTE UNQUOTE”

September 9, 2010 § Leave a comment

“I love deadlines. I especially like the whooshing sound they make as they go flying by.” — Douglas Adams

Douglas Adams

“Of course the game is rigged. Don’t let that stop you—if you don’t play, you can’t win.” — Robert Heinlein

“Next to knowing when to seize an opportunity, the most important thing in life is to know when to forego an advantage.” — Benjamin Disraeli

WHEN RULE 41(D) COMES KNOCKING AT YOUR DOOR

September 8, 2010 § 11 Comments

Rule 41(d), MRCP, is the familiar rule by which the Chancery Clerk is authorized to send out a notice to all counsel and self-represented parties in cases ” … wherein there has been no action of record during the preceding twelve months …” that the case will be dismissed for want of prosecution. The rule requires the clerk to dismiss the action unless within thirty days of the notice, ” … action of record is taken or an application in writing is made to the court and good cause is shown why it should be continued as a pending case.”

You have received such a notice, and, galvanized into action, you toss it on your paralegal’s desk and say, “Here, take care of this,” as you saunter out the door trying not to be late for your tee time. The paralegal scours the files and finds that your usual response is to file something called “Notice to Keep Case on the Active Docket,” and she tosses a copy of it on the secretary’s desk and says, “Here, do me one of these,” and returns to her office to continue whittling away at a four-foot-tall mound of discovery. In due course, the secretary produces said pleading, you sign it, the paralegal files it, and everything is fine. Until the next week, when you find your case was dismissed despite your efforts. What went wrong?

In the case of Illinois Central Railroad Co. v. Moore, 994 So.2d 723, 728 (Miss. 2008), the Mississippi Supreme Court held that a Circuit Judge should have dismissed the plaintiff’s suit after he had received Rule 41(d) notice, and his attorney filed nothing more than letters with the court requesting that it not be dismissed. The court reasoned that Rule 41(d) requires that some procedural action that would have the effect of moving the case forward be filed, or that a proper motion under the rules be filed and noticed, the motion showing good cause why the action should not be dismiised and asking the court to rule affirmatively that it should not be dismissed.

There was evidence of severe dilatoriness on the part of plaintiff’s counsel in the ICC case. The appellate decision, however, did not turn on his want of action, but only found it to be an aggravating factor. The court’s holding turned on counsel’s non-compliance with the rules, and the result was dismissal of the lawsuit. Although dismissal under 41(d) is without prejudice, the dismissal in ICC was fatal due to the statute of limitations.

The Supreme Court decision noted that there has been a relaxed attitude about responses to 41(d) notices, but stated that it would not follow the same path. ICC now stands for the proposition that if you skirt by the rule and succeed in having your action kept on the active docket, you will likely fail if the other side appeals.

If you want to keep an action from being dismissed under Rule 41(d), simply follow the rule and either: (1) Take some action of record, such as serving discovery, or filing a legitimate motion to advance the case; or (2) File a motion with the court asking that it not be dismissed, stating good cause to support your position, and notice the motion for hearing before the thirty days expires. Anything short of either action could result in a favorable ruling by a more relaxed trial judge, but will leave you vulnerable on appeal.

Caveat: Remember that Uniform Chancery Court Rule 1.10 requires that discovery must be completed within 90 days of service of an answer, unless extended by the court. It is unlikely that this judge would have allowed either party an extension that would cause a case to be pending as long as a year. It would be difficult to convince a judge that propounding discovery after the discovery deadline has expired would be an action of record that would have the effect of moving the case forward.

Comment: The consequences of Rule 41(d) to a cause of action are usually not as dire in Chancery Court as they are in Circuit. Statutes of limitation are not as often a concern in Chancery. For clients on an unequal financial footing, however, a 41(d) dismissal can cause expenses and fees to increase dramatically, and may spell the end of meritorious litigation. It may also require you to represent a client through an appeal that you were not paid to handle, just to avoid some other action by your client.

Where Am I?