October 30, 2010 § 1 Comment
In the post below about Elvis in Meridian I posed the question about the building with the three arches. Turns out it was the YMCA located on the corner of 23rd Avenue and Ninth Street, which is now the location of WTOK-TV. The television station renovated the building and removed the arches and porch roofs. Tom Williams, the President of Meridian Regional Airport, sent me an aerial photo of the building in its pre-WTOK state. Here is the pic that Tom sent …
Recognize the three arches and the porch roof from the Elvis parade photo? That’s the Temple Theater directly behind the YMCA Building.
Tom pointed out that he had an interest in the building because his father, Marvin Williams, Esq., at one time had an office in the building.
Thanks to Tom for unlocking this mystery for us. That building would most certainly have been on any downtown parade route.
October 30, 2010 § 2 Comments
I have to confess to my second tour this weekend of that mystical shrine of tackiness, Graceland in Memphis, home of Elvis Presley and spiritual Mecca for his adherents. We took some Louisiana relatives who had never been there.
It got me thinking about what I had heard for years — that Elvis had performed in Meridian.
What I had been told was that the King had been in Meridian years ago to perform at the fair and calf scramble before he became famous. I even heard that there were photos. So I dug around on the internet, and actually found a couple of photos. The photos are both dated May 26, 1955, which would predate Elvis’s 1956 appearances on the Milton Berle and Ed Sullivan shows, the gigs that propelled him into national attention. The pictures show him in his more princely days, before he was anointed king.
The photo below shows Elvis and Jimmy Snow riding on a Cadillac in the parade for the 1955 Fair in Meridian. Anybody recognize that building? It’s interesting to me that the crowd appears more interested in whomever is coming up behind Presley and Snow; of course, Elvis back then was merely a musical act from Memphis who was mostly known for his performances on the Louisiana Hayride. Those folks on the parade route had no clue then that they were seeing a future international superstar. Jimmy Snow, incidentally, was the son of country music legend Hank Snow, and deveoped his own career eventually performing on the Grand Ole Opry before becoming a minister in Tennessee.
The other photo, below, shows Elvis with Bill Black and Jimmy Snow on the same Cadillac.
Nobody I know in Meridian has developed any oral history about this or any clearcut description of the event.
Here’s an interesting wrinkle: a Wikipedia article on Elvis gives a different time frame …
“The audience response at Presley’s live shows became increasingly fevered. Moore recalled, “He’d start out, ‘You ain’t nothin’ but a Hound Dog,’ and they’d just go to pieces. They’d always react the same way. There’d be a riot every time.” At the two concerts he performed in September at the Mississippi-Alabama Fair and Dairy Show, 50 National Guardsmen were added to the police security to prevent crowd trouble.”
According to the article, this was in 1956, after Presley had appeared on both Milton Berle’s and Ed Sullivan’s tv shows and created a national sensation. Of course, the reference to the Mississippi-Alabama State Fair and Dairy Show is Meridian’s own and was back then. Not enough info for me to resolve the discrepancy in dates beyond doubt. My best guess is that the source for the Wikipedia info, who was part of Elvis’s entourage back then, may be a little confused as to the timing. I would go with the dates of the photos for two reasons: first, that the dates of the pictures are part of their provenance; and second, after the national tv appearances, the crowd in the parade picture would have been far more focused on Elvis.
Steve Labiche did a little more research and found that the Cadillac had been purchased by Presley in Florida, and he had the dealer paint “ELVIS” on the door.
NOTE: the mystery of the building above with the three arches is solved here.
It’s an interesting little tidbit of Meridian history.
October 29, 2010 § Leave a comment
This article is copied from the Washington Post online edition. After you read it, you may have an unsettling sense of unreality. Lawyers charging $850 an hour for a divorce? Billing for more than 7 hours a day, 365 days a year? Billing for as many as 71 hours in a day? $624,000 in fees for a divorce trial? I am not making this up.
High-priced lawyer sues former client, then agrees to pay him $102,000
By Tom Jackman
Washington Post Staff Writer
Saturday, September 25, 2010; 6:29 PM
Glenn C. Lewis is an acknowledged titan of the D.C. area divorce bar, a former president of the Virginia Bar Association who boasts that he is the most expensive lawyer in the region: $850 an hour. He has an impressive office in the District and an array of high-profile clients.
So it fascinated the Fairfax County courthouse when Lewis sued one of his former clients for an additional $500,000 in fees and interest, although he’d already been paid $378,000.
The fascinating part was that the client, a lawyer himself, fired back. He hired another former state bar president, Bernard J. DiMuro, who dug through Lewis’s billing records and hired two more divorce bar giants – including another former state bar president – as his experts. The experts said Lewis had done a poor job and didn’t deserve nearly $900,000 for his work.
In Fairfax Circuit Court on Friday, Lewis capitulated. He agreed to pay his former client more than $102,000, including $25,000 in sanctions imposed on Lewis’s lawyers for defying pretrial orders. Lewis even failed to show up for his own deposition.
Lewis, who for years hosted his own cable access television show, and who was given a lifetime achievement award from the Virginia State Bar’s family law section, remains unrepentant. His final bill for the divorce of Steve Firestone was $627,000, and he sought another $253,000 in interest for the case, which ended in 2004 without a trial less than a year from the time it was filed.
“He owed us more than that,” Lewis said in an interview last week. “We earned more than that. I feel as strongly today as I did the day we filed [suit], that Mr. Firestone owed every penny of it.”
Firestone said, “I thought that what I paid was egregiously high,” and he stopped paying shortly before his divorce was finalized. Then he received the lawsuit seeking another $500,000 five years later.
“I was shocked,” Firestone said. “If he won, we were going to be out on the street.”
Firestone hired DiMuro, who doesn’t do divorce law. But DiMuro obtained Lewis’s billing records and the records of the divorce, which he then handed over to Joseph Condo and Robert Shoun, two longtime family law practitioners.
Their conclusion: Not only were Lewis’s bills “flagrantly disproportionate to the value of the dispute,” DiMuro said, but Lewis’s settlement was a lousy deal. Firestone, through DiMuro, pursued Lewis for legal malpractice.
Firestone’s ex-wife had used Fairfax attorney David L. Duff for the divorce. Duff’s total bill: $73,000.
DiMuro noted that three lawyers from Lewis’s firm worked on Firestone’s case, and two lawyers often appeared at meetings or depositions that would normally be handled by one lawyer. In 2003, Lewis was only billing $575 an hour, while two young associates billed at rates closer to $250 an hour.
Lewis said Firestone was a difficult client, presenting numerous problems, and that comparing one side’s legal bills with the other’s is unfair. Firestone had tax problems, problems with his law practice, bookkeeping difficulties, suffered from depression and was intent on revenge against his wife, Lewis said.
But DiMuro said, “This was a garden-variety divorce with a modest estate for this area. No child custody issues. Their incomes were modest.” Besides their house in Fairfax County, the Firestones owned a small office condo and a few other assets. Firestone also had a $1.1 million inheritance from his parents, DiMuro said, which Lewis successfully kept separate from the marital estate.
Lewis said that’s a simplistic analysis. “This case presented so many more issues that were bigger than getting unmarried,” he said. “I had the high maintenance client.” He said Firestone signed a contract acknowledging that multiple lawyers might work on his case and that he had 30 days to challenge a bill, which he never did.
One of Firestone’s quirks was his heated denial that his wife had cancer, Lewis claimed. Lewis said he never really pursued the issue, and the case ended in July 2004. But several years later, in a casual conversation with Duff, he learned that Beverly Firestone had died of cancer not long after the divorce.
“My head exploded,” Lewis said. “I was sickened by that. I was horrified to think the case accelerated that. Nothing is more stressful than a divorce case. Stress kills.”
So, he sued Steve Firestone in October 2009.
Firestone said he never told Lewis his wife didn’t have cancer. “I told him I wondered if it was a ploy to increase my alimony exposure,” Firestone said.
In pretrial discovery, DiMuro obtained billing records for all of Lewis’s cases, not just the Firestone case. He found examples of days where Lewis billed for 39 hours; 31 hours; 40 hours; 71 hours.
Lewis said that was the result of “block billing,” in which he entered the time for many days all at once.
In a 16-month period in 2003 and 2004, DiMuro calculated in court records, Lewis billed his clients for 3,620 hours, or an average of 226 hours per month, or 7.4 hours per day, 365 days per year.
Lewis said he worked nights and weekends, in addition to his bar duties and television hosting.
As the suit progressed in Fairfax Circuit Court, Lewis’s lawyers angered Fairfax judges by failing to respond to basic requests and orders. The judges started slapping Lewis’s lawyers with financial sanctions. First $2,000. Then another $2,000. Then $5,000, $7,500 and finally a $10,515 hit after Lewis failed to appear for his deposition last month.
Lewis said his lawyer, Michael P. Freije, had released him from appearing, although he had been subpoenaed. Freije told Judge David S. Schell there had been a misunderstanding, but Schell was clearly upset and ordered Lewis to appear in DiMuro’s office the following week as well as pay the highly unusual fifth court-imposed sanction.
Lewis said he couldn’t be there, because of family obligations. Rather than defy the court, he said, he agreed to pay Firestone and settled the case.
October 29, 2010 § Leave a comment
“Have you ever noticed? Anybody going slower than you is an idiot, and anyone going faster than you is a maniac.” — George Carlin
“Half our life is spent trying to find something to do with the time we have rushed through life trying to save.” — Will Rogers
“A traveling salesman, seeing a farmer holding a large pig up to an apple tree to feed him an apple, stopped and asked, ‘Wouldn’t it save a lot of time just to pick the apple and give it to the pig?’ Replied the farmer: ‘What’s time to a pig?'” — Old joke
October 28, 2010 § 13 Comments
You’re handling an estate of a decedent whose spouse predeceased him. The decedent was a man of modest means with a two-bedroom home in town, some furniture and appliances, an older car, some savings and $6,000 in a 401(k) account. There’s not enough cash to pay all the creditors’ claims. The surviving children and grandchildren want you to close the estate as soon as possible. Do you advise them to sell the furniture at an estate sale to muster up enough cash to satisfy the creditors? Or should you get court approval to sell the house, pay the debts, and distribute what’s left?
Not so fast. All that property may not even belong in the estate in the first place. It may not be subject to the creditors’ claims at all.
MCA § 91-1-19 provides in part:
The property, real and personal, exempted by law from sale under execution or attachment shall, on the death of the husband or wife owning it, descend to the survivor of them and the children and grandchildren of the decedent, as tenants in common, grandchildren inheriting their deceased parent’s share; and if there be no children or grandchildren of the decedent, to the surviving wife or husband; and if there be no such survivor, to the children and grandchildren of the deceased owner.”
What this language means is that the property that is exempted by Mississippi law from sale under execution or attachment descends automatically, not through any estate, as stated in the statute. You would be shortchanging the statutory survivors considerably by not pursuing the exemptions.
It’s important to know what are the exemptions. MCA § 85-3-1 sets out the personal property and financial assets that are exempt:
(a) Tangible personal property of the following kinds selected by the debtor, not exceeding Ten Thousand Dollars ($10,000.00) in cumulative value:
(i) Household goods, wearing apparel, books, animals or crops;
(ii) Motor vehicles;
(iii) Implements, professional books or tools of the trade;
(iv) Cash on hand;
(v) Professionally prescribed health aids;
(vi) Any items of tangible personal property worth less than Two Hundred Dollars ($200.00) each.
Household goods, as used in this paragraph (a), means clothing, furniture, appliances, one (1) radio and one (1) television, one (1) firearm, one (1) lawnmower, linens, china, crockery, kitchenware, and personal effects (including wedding rings) of the debtor and his dependents; however, works of art, electronic entertainment equipment (except one (1) television and one (1) radio), jewelry (other than wedding rings), and items acquired as antiques are not included within the scope of the term “household goods.” This paragraph (a) shall not apply to distress warrants issued for collection of taxes due the state or to wages described in Section 85-3-4.
(b)(i) The proceeds of insurance on property, real and personal, exempt from execution or attachment, and the proceeds of the sale of such property.
(ii) Income from disability insurance.
(c) All property in this state, real, personal and mixed, for the satisfaction of a judgment or claim in favor of another state or political subdivision of another state for failure to pay that state’s or that political subdivision’s income tax on benefits received from a pension or other retirement plan. As used in this paragraph (c), “pension or other retirement plan” includes:
(i) An annuity, pension, or profit-sharing or stock bonus or similar plan established to provide retirement benefits for an officer or employee of a public or private employer or for a self-employed individual;
(ii) An annuity, pension, or military retirement pay plan or other retirement plan administered by the United States; and
(iii) An individual retirement account.
(d) One (1) mobile home, trailer, manufactured housing, or similar type dwelling owned and occupied as the primary residence by the debtor, not exceeding a value of Thirty Thousand Dollars ($30,000.00); in determining this value, existing encumbrances on the dwelling, including taxes and all other liens, shall first be deducted from the actual value of the dwelling. A debtor is not entitled to the exemption of a mobile home as personal property who claims a homestead exemption under Section 85-3-21, and the exemption shall not apply to collection of delinquent taxes under Sections 27-41-101 through 27-41-109.
(e) Assets held in, or monies payable to the participant or beneficiary from, whether vested or not, (i) a pension, profit-sharing, stock bonus or similar plan or contract established to provide retirement benefits for the participant or beneficiary and qualified under Section 401(a), 403(a), or 403(b) of the Internal Revenue Code (or corresponding provisions of any successor law), including a retirement plan for self-employed individuals qualified under one of such enumerated sections, (ii) an eligible deferred compensation plan described in Section 457(b) of the Internal Revenue Code (or corresponding provisions of any successor law), or (iii) an individual retirement account or an individual retirement annuity within the meaning of Section 408 of the Internal Revenue Code (or corresponding provisions of any successor law), including a simplified employee pension plan.
(f) Monies paid into or, to the extent payments out are applied to tuition or other qualified higher education expenses at eligible educational institutions, as defined in Section 529 of the Internal Revenue Code or corresponding provisions of any successor law, monies paid out of the assets of and the income from any validly existing qualified tuition program authorized under Section 529 of the Internal Revenue Code or corresponding provisions of any successor law, including, but not limited to, the Mississippi Prepaid Affordable College Tuition (MPACT) Program established under Sections 37-155-1 through 37-155-27 and the Mississippi Affordable College Savings (MACS) Program established under Sections 37-155-101 through 37-155-125.
(g) The assets of a health savings account, including any interest accrued thereon, established pursuant to a health savings account program as provided in the Health Savings Accounts Act (Sections 83-62-1 through 83-62-9).
(h) In addition to all other exemptions listed in this section, there shall be an additional exemption of property having a value of Fifty Thousand Dollars ($50,000.00) of whatever type, whether real, personal or mixed, tangible or intangible, including deposits of money, available to any Mississippi resident who is seventy (70) years of age or older.
(i) An amount not to exceed Five Thousand Dollars ($5,000.00) of earned income tax credit proceeds.
(j) An amount not to exceed Five Thousand Dollars ($5,000.00) of federal tax refund proceeds.
(k) An amount not to exceed Five Thousand Dollars ($5,000.00) of state tax refund proceeds.
(l) Nothing in this section shall in any way affect the rights or remedies of the holder or owner of a statutory lien or voluntary security interest.
MCA § 85-3-21 establishes the homestead exemption.
There are other exemptions that are set out in the cross-references to the code sections cited.
MCA § 91-7-117 requires the appraisers to set apart the exempt property.
As attorney for the estate, you have a duty to determine what assets need to be declared exempt and not included in it. In moderate estates it could mean the difference between survivors getting nothing and the survivors getting something.
Now re-read the first paragraph above. Do you see it differently?
October 27, 2010 § 1 Comment
Frank Lewis appeared personally in court with his attorney and joined in a request that his son be appointed his conservator. The idea for the conservatorship arose out of some financial dealings by other members of the family who had powers of attorney. After a hearing with no record, the Chancellor ruled that a guardian should be appointed instead, due to Frank’s physical infirmities and need for regular kidney dialysis. The judge appointed Frank’s then attorney as guardian of his estate, and his son as guardian of the person, and cancelled the powers of attorney.
Frank retained another attorney and appealed the Chancellor’s decision.
The Court of Appeals reversed the trial court and remanded for further proceedings, In The Matter of The Guardianship of the Estate of Frank Lewis, decided October 5, 2010.
There are several interesting arguments made by both sides, and I commend the decision for your reading, but the issue of interest in this post is that proper notice of the hearing was not given.
There is no question that Frank Lewis was present at the hearing with his retained attorney. Ordinarily, a party’s presence in court would submit him voluntarily to the jurisdiction of the court. In order to establish a guardianship, however, MCA § 93-13-281 requires that the proceedings shall join as defendants two of his adult kin within the third degree by proper process, joinder or waiver. The petition did name two adult relatives within the third degree, but there is no evidence in the record that they were properly summoned, joined, waived process or personally appeared before the court. The court of appeals reversed and remanded to allow proper notice to two relatives within the third degree and for the court to hear evidence whether Frank does need a guardian.
The moral of the story is that guardianships and conservatorships are creatures of statute, and the statutes must be strictly complied with. If there are two relatives within the third degree, you must join them. If there are not two relatives within the third degree, the court is required to appoint a guardian ad litem for the infirm individual.
October 26, 2010 § Leave a comment
Rule 503 of the Mississipi Rules of Evidence (MRE) sets out the familiar physician- and psychotherapist-patient privilege that has long been a part of our law.
Subsection (d) (4) was amended in 2004 to remove the privilege in certain proceedings related to child custody. The rule states:
There is no privilege under this rule for communications, including past and current records of whatever nature, regarding a party’s physical, mental, or emotional health or drug or alcohol condition relevant to child custody, visitation, adoption, or termination of parental rights. Upon a hearing in chambers, a judge, in the exercise of discretion, may order release of such records relevant to the custody, visitation, adoption, or termination action. The court may order the records sealed.
The hearing in chambers is to determine whether the documents would be relevant to one of the listed proceedings. The comment to the rule sets out “some factors the court should consider:
- Whether the treatment was recent enough to be relevant;
- Whether substantive independent evidence of serious impairment exists;
- Whether sufficient evidence is available elsewhere;
- Whether court-ordered evaluations are an inadequate substitute; and
- Whether, given the severity of the alleged disorder, communications made in the course of treatment are likely to be relevant.
To me, it is significant that the comment describes the foregoing as “some” of the factors that the trial court should consider. In my opinion, the court should also consider what is the relief sought, the severity of the condition and what its impact on the child could be, and whether the information includes names of witnesses and others who should be interviewed by the guardian ad litem, if any. The comment factors seem weighted in favor of the patient’s privacy, but I believe the repeal of the privilege in cases such as those listed is a clear indication that the policy is that the privilege should yield to the search for all information that will help inform the court as to what is in the best interest of the child.
In this judge’s opinion, the court should err on the side of making the information available for the reason that it may lead to the discovery of additional information that may bear on the best interest of the child.
October 26, 2010 § Leave a comment
There will be a retirement reception honoring Chancellor Sebe Dale, Jr., 10th Chancery Court District, on Friday, November 12 at the Marion County Chancery Court Annex, 250 Broad Street in Columbia, from 2:00 p.m. to 6:00 p.m. All members of the bar are invited and encouraged to attend.
He obtained an undergraduate degree from Mississippi College and his law degree from the University of Mississippi. He also completed courses at the National Judicial College in Reno, Nevada.
Dale served as chairman of the Board of Governors of the Mississippi Judicial College, chairman of the Mississippi Judicial Advisory Study Committee, chairman of the Mississippi Children’s Code Commission, and other professional leadership positions.
For his leadership he was honored with the Justice Achievement Award of the Mississippi Court Administrators Association in 1995; the Mississippi Supreme Court Chief Justice Award in 1996; the Lifetime Achievement Award of the Mississippi Bar Association in 1997; and he was named Distinguished Jurist by the Mississippi State University Pre-Law Society in 2000.
He is a veteran of World War II, and retired Colonel of the U.S. Army Reserve. He is a past president of the Magnolia Chapter of the Retired Officerss Association.
October 25, 2010 § 4 Comments
The time has come to close that guardianship you opened a few years back to receive a personal injury settlement on behalf of a minor ward. So how are you going to go about closing it?
MCA § 93-13-77 provides that “When the guardianship shall cease in any manner, the guardian shall make a final settlement of his guardianship, by making out and presenting to the court, under oath, his final account, which shall contain a distinct statement of all balances of his annual accounts, either as debits or credits, and also, all other charges, expenditures, and amounts received, and not contained in any previous annual account.”
The final account must include a re-cap of the previous annual accounts, and must also set out the final annual of disbursements and charges since the last account, supported by proper vouchers as required in MCA §§ 93-13-71, -73 and 91-7-277. The only exception to the requirement of proper vouchers is when the guardian is a federally regulated bank, thrift or trust company, and there is a sworn statement of an officer that the vouchers are available for inspection. What constitutes a proper voucher was the subject of a previous post that you can find here.
After the final account has been filed, it must be on file for inspection by the ward for not less than “one month,” and you must issue a summons to him or her to appear in court on a day after the one month period has expired to show cause why the final account should not be approved. If the ward does contest the account, the court will hear evidence and adjudicate whether it should be approved.
In the judgment closing the estate, the court may make an allowance to the guardian not to exceed 10% of the value of the estate, and shall order that the property of the estate be delivered to the ward and the guardian discharged.
If the ward has reached 21 years of age, the ward may petition the court under oath to waive the final account, ” … and the court shall grant the same unless there be reason to suspect that the petition was procured by the guardian through fraud or undue influence over the ward, in which case the court shall require proof of the good faith thereof.”
So when is it time to close a guardianship? You can read about that here.