YET ANOTHER REASON TO TAKE EXTRA CARE WITH 8.05’S

October 14, 2010 § 4 Comments

In the case of Trim v. Trim, 33 So.3d 471 (Miss. 2010), the Mississippi Supreme Court held that “the intentional filing of a substantially false Rule 8.05 statement is misconduct that rises above mere nondisclosure of material facts to an adverse party,” and constitutes fraud upon the court.

So what is the significance of the Trim case for everyday practitioners?

Let’s say that your client isn’t deliriously happy with the outcome of her equitable distribution case, but she accepts it without an appeal.  Ten months later she comes in to your office mad as a hornet with sheaves of paperwork that prove conclusively that her ex substantially understated on his 8.05 the value of financial assets that he controlled, and the gain to your client could be in the hundreds of thousands of dollars.  Aha!  You think, we have the sorry so-and-so right by the [indelicate word deleted]!

But wait.  How are you going to get this before the court?  MRCP Rule 59 relief expired 10 days after the judgment was entered, and the appeal time ran 30 days after entry.  MRCP Rule 60 actions to set aside a judgment for fraud have to be brought within six months of the date of the judgment.   

That’s where Trim comes in.  By finding substantial misrepresentation on the 8.05 to be a fraud on the court, as opposed to fraud on the opposing party, the Supreme Court essentially ruled that there is no time limit to bringing an action to aside an action based on 8.05 fraud.  That’s because MRCP Rule 60 expressly states:  “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.”

Trim has ramifications for lawyers in Chancery.  If you are in the habit of accepting your client’s 8.05 at face value without going over it with him or her, and without questioning behind it, you may be leaving your client open to an action to set aside that divorce judgment you thought you had laid to rest long ago.  The client may well question why you never went over the statement with him and counseled him about what to include and what not to include.  “My lawyer never told me that I had to list those three securities accounts; in fact, he never talked with me at all about what to include on the form.” 

In case you think this is the kind of thing that happens to somebody else somewhere else, think again.  Only this year, I set aside a divorce that was nearly two years old for substantial misrepresentation of financial assets that amounted to a fraud on the court.  It can happen to you.

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