March 30, 2012 § 2 Comments
- State trial courts’ use of judicial interrogation and Daubert gatekeeping techniques are highlighted in this interesting article at the Social Science Research Network. The trial judge as interrogator is a subject I’ve talked about here before. And I touched on Daubert analysis step by step at this post and here.
- A few of you may be old enough to remember door-to-door salesmen. They came to our homes bearing all manner of goods. One particular specie of the sales creature was the encylopedia salesman, and I am sure many sets of Collier’s, World Book, Americana, Book of Knowledge, and the venerable Brittanica arrived on household shelves (often to gather dust) across America via those Willy Lomans of yesteryear. Now the word is that Encyclopedia Brittanica is suspending print publication after 244 years. You will still be able to access it online by subscription, but I wonder, in an age when genuine scholarship seems to be demanded less and less in our schools, whether it will survive against the less authoritative but free online Wikipedia. We’ll see.
- Speaking of Wikipedia, Ohio State University’s Journal of Law and Policy for the Information Society has an interesting article in .pdf on citations to Wikipedia in law review articles.
- The 10 most popular law schools (highest percentages of accepted applicants who enroll) and the top ten with an increase in enrollment for 2011-2012.
- Clifford Winston in the NYT says law schools and bar exams are unnecessary and the legal profession should be deregulated. Andrew Ziaja disagrees. Articles from Oct 2011 that I’ve only now come across.
- Should law school be more academic or more practical? That is the question behind this article: The Better Angels of Our Profession.
- Looking to the flip, non-angelic, side of the profession, Tom Freeland at NMC blog continues his coverage of the Scruggs saga with reportage of the testimony and analysis of Scruggs’ motion to withdraw his guilty plea in Scruggs II (which involved then-Judge DeLaughter). Freeland’s coverage is day by day, and linked is only one day. You will have to click around on the site to catch all of the proceedings, but it is fascinating reading, as it has been for the nearly six years that the criminal cases have been pending and Freeland has been covering from his unique vantage point next door to the federal court house in Oxford.
March 28, 2012 § 1 Comment
To establish adverse possession requires proof by clear and convincing evidence of some rather elusive concepts established by the courts to interpret and apply MCA § 15-1-13. That’s why, whenever I find an exposition on the applicable law, I’m quick to share it so that you can use it.
The most recent useful primer on the subject is Judge Carlton’s opinion in the COA case of Greenwood v. Young, decided February 7, 2012. I’ve stripped out the law to provide you with a skinny you may want to add to your trial notebooks:
¶19. Mississippi Code Annotated section 15-1-13(1) governs claims of adverse possession, providing in part:
“Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title, saving to persons under the disability of minority or unsoundness of mind the right to sue within ten (10) years after the removal of such disability, as provided in Section 15-1-7. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than thirty-one (31) years.
In order to establish a claim of adverse possession, the party claiming to have adversely possessed the property must show, by clear-and-convincing evidence, that his possession was (1) under a claim of right or ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful. Pulliam v. Bowen, 54 So. 3d, 331, 334 (¶13) (citations omitted).
Claim of Ownership. ¶21. “In the end, the ultimate question is whether the possessory acts relied upon by the would be adverse possessor are sufficient to fly his flag over the lands and to put the record title holder on notice that the lands are held under an adverse claim of ownership.” Hill v. Johnson, 27 So. 3d 426, 431 (¶19) (Miss. Ct. App. 2009) (citations omitted).
Actual or Hostile. ¶23. “The actual or hostile occupation of land necessary to constitute adverse possession requires a corporeal occupation, accompanied by a manifest intention to hold and continue to hold the property against the claim of all other persons, and adverse to the rights of the true owner.” Hill, 27 So. 3d at 431-32 (¶23).
Open, Notorious, and Visible. ¶26. “The mere possession of land is not sufficient to satisfy the requirement that the adverse possessor’s use be open, notorious, and visible.” Webb v. Drewrey, 4 So. 3d 1078, 1083 (¶19) (Miss. Ct. App. 2009) (citation omitted). An adverse-possession claim will not begin “unless the landowner has actual or constructive knowledge that there is an adverse claim against his property.” Id. “An adverse possessor ‘must unfurl his flag on the land, and keep it flying, so that the (actual) owner may see, and if he will, [know] that an enemy has invaded his domains, and planted the standard of conquest.’” Id.
Continuous and Uninterrupted for Ten Years.
Exclusive. ¶29. “Exclusivity, within the meaning of the statute, means that the adverse possessor’s use of the property was consistent with an exclusive claim to the right to use the property.” Hill, 27 So. 3d at 432 (¶27). “Exclusive use is at the most basic level the intent of actual and hostile possession.” Id. “To satisfy the element of exclusivity, ‘the claimant’s conduct must afford an unequivocal indication that he is exercising dominion of a sole owner.’” Stone v. Lea Brent Family Invs., L.P., 998 So. 2d 448, 455 (¶25) (Miss. Ct. App. 2008) (citations omitted). “Exclusive use” does not mean that no one else uses the property. Id. “Rather, exclusive use indicates a right to use the land above other members of the general public.” Id.
Peaceful. ¶30. The adverse possession must be peaceful. Jordan v. Fountain, 986 So. 2d 1018, 1023 (¶17) (Miss. Ct. App. 2008). “The mere existence of a dispute over the use of land does not present an obstacle to satisfy the element of peaceful use.” Hill, 27 So. 3d at 432 (¶29). “Simple disputes often arise between neighboring landowners, but do not rise to the level of destroying the peaceful existence between them.” Id.
Clear and Convinving Evidence. The mere fact that there is contradictory evidence does not mean that the credible evidence is not clear and convincing. See, Stancil v. Farris, 60 So. 3d 817, 824 (¶14) (Miss. Ct. App. 2011) “If clear[-]and[-]convincing evidence could never be shown in the presence of contradictory testimonies, virtually no case requiring a showing by clear and convincing evidence could be proven. Such is clearly not the case.”
You should read the opinion carefully to see how the chancellor applied the law to the facs, and how the COA viewed the chancellor’s ruling. Your case may be distinguishable.
Another adverse possession post highlighting a COA ruling by Judge Roberts is here.
You can find an annotated checklist of adverse possession factors by following the link.
The latest COA case on adverse possession is Massey v. Lambert, decided March 27, 2012, in which the court upheld the chancellor’s ruling that the use of the property had been permissive, which defeats a claim of adverse possession.
March 27, 2012 § 12 Comments
Not too long ago I pointed out to a young, out-of-district lawyer that the lawyer had failed to get the chancery clerk to mail a copy of the publication summons to the defendant’s last-known address and note the fact on the docket, and that I could not sign the judgment until that requirement had been met.
Later, in the clerk’s office, I was told to my chagrin that the lawyer had entered in a huff, tossed the process on the counter, and said “The judge said that y’all messed up and didn’t send the process to the defendant.” The unhappy barrister complained that about a wasted trip from [somewhere far away to the west], and demanded that the clerk send the process by certified mail immediately, and then left in a cloud of dust, no doubt headed back to the more rarified and privileged atmosphere from whence that poor soul had descended into what I am sure the lawyer considered to be our little backwater corner of legal hell.
Not to be too picky — or prickly — but I never told that lawyer that the clerk had messed up. Nor did I instruct counsel to have the process mailed by certified mail (which the poor clerk did anyway at her own expense … Rule 4 only requires regular mail). And I certainly did not suggest to the lawyer to blame it all on the clerks, or even that the clerks were to blame at all.
This unfortunate episode illustrates what that sage chancellor, Frank McKenzie of Laurel, aptly characterizes as “Contempt of clerk.” It’s conduct that I’ve described here before.
Let’s face it: the chancery clerk is in a unique position to make your job as a lawyer enjoyably easy at one extreme or excruciatingly painful at the other, with myriad shades of gray in between. You get to choose how you get treated by how you deal with the clerks.
In this particular case, when the lawyer filed the process, the lawyer should have made a simple request of the clerk to mail the process, and should have provided a copy for the clerk to do so, and should have asked the clerk (politely) to do it right then so that she could watch the entry being made on the docket. And should have done so politely.
Now, you may ask “Why should the lawyer take responsibility to do that when MRCP 4 clearly says that the clerk is the one who shall mail, etc.” Well, there are several considerations that come into play:
- You may look high and low in the rules, and you will find no penalty for the clerk failing to mail the publication; on the other hand, you and your client pay the price if you do not see that it is done.
- You, not the clerk, are responsible for the proper handling and processing of your case.
- As a practical matter, how are the clerks to know that this needs to be done in a given case unless you tell them? Chancery clerks are busy handling hundreds of transactions, many of which involve minute details, and you are merely one more customer among many, many. No matter how important you think that you and your case are, every other customer feels exactly the same way.
- The easier you make the clerk’s job, the more likely it is that it will be done to your satisfaction.
Part of making the clerk’s job easier is human relations. It doesn’t take much sense to realize that a pompous, arrogant, demanding jackass will experience a certain level of customer service, and a polite, cooperative, prepared professional will have an entirely different experience. Vinegar vs. honey.
In my opinion, there is never a reason to treat clerks in a demeaning or rude fashion. Ever. For one thing, they are in a demanding job and they are doing the best they can do. For another, they are an important arm of the courts, and they deserve the same respect from you as a professional that you show to all other court personnel.
The penalty for contempt of clerk can be drastic. Would you rather get a call the day after you mailed that complaint telling you that you had neglected to enclose a check for court costs, or would you rather find out six weeks later that your pleadings have been setting on a desk awaiting your check? I’m not saying that a clerk would be so unprofessional as to do something like that intentionally, but with scarce resources, clerks have to triage matters, and, human nature being what it is, butterflies draw more favorable attention than dung beetles.
March 26, 2012 § 6 Comments
I try not to comment on pending litigation, but the ongoing saga of attorney (for the moment) Michael J. Brown of Jackson bears mentioning here as an object lesson for all of you who handle guardianship — and any other fiduciary — matters.
To catch you up … Mr. Brown opened a guardianship for Demon McClinton, a child who had inherited $3 million from his mother, Rebecca Henry. Ms. Henry was the daughter of late Mississippi civil rights icon Aaron Henry. Attorney Brown never opened a guardianship account, depositing the funds instead in his trust account. To make a long, sordid story short, the funds were bled dry by unauthorized disbursements, extremely questionable “investments,” so-called “loans” — including “loans to himself — and outragous attorney’s fees. You can read a recap of the special master’s report here.
Brown’s misconduct drew the attention of Chancellor Dewayne Thomas. Brown at first claimed that the file, which he had checked out of the clerk’s office, had been destroyed when a pipe burst at his office. This proved to be a perjurious lie when the Special Master, acting pursuant to a search warrant, found the file in the attic of Brown’s home in a box marked “McClinton.”
At a show-cause hearing, Brown tried to assert that his schemes had been approved verbally by a preceding chancellor. Of course, Chancellor Thomas rejected that claim and ordered Brown to limit himself to to what was of record, which clearly established that none of Brown’s many transactions had been approved by any chancellor. Brown testified that there were no funds actually missing because he had accounted for every unauthorized expenditure, “loan,” “investment” and other impropriety. In other words, they aren’t missing because we know their whereabouts.
Chancellor Thomas has ordered the soon-to-be erstwhile lawyer jailed, subject to $250,000 bond, until he restores the missing funds. You can read more about Mr. Brown’s epic mishandling of this case on Philip Thomas’s blog, which includes links to other articles on the subject. An article that includes Judge Thomas’s order is here.
Several years ago I ordered a lawyer and guardian to show cause why they should not be sanctioned for mishandling guardianship funds to the tune of $45,000. The lawyer had handed the settlement check to the guardian, allowed the guardian to go by himself to open a restricted guardianship account, but the guardian deposited the funds instead in his own credit union account. No accountings were filed for several years, even after my predecessor, and then I, ordered that they be done. The lawyer at the hearing disclaimed any responsibility, shucking all the blame off on the guardian. I did not buy it. UCCR 6.01 and 6.02, and MCA § 93-7-253, along with practically all of the Rules of Professional Responsibility, persuade me to the contrary. The lawyer has a duty to the court to ensure that the fiduciary is faithful in carrying out his responsibilities.
Let me restate that: The lawyer has an ethical and professional duty to the court to ensure that the fiduciary is faithful in carrying out his responsibilities.
As the chancellor is the superior guardian of the ward, the lawyer is the arm and officer of the court, charged with the professional responsibility to act as the court’s agent to make sure that the fiduciary is acting solely in the best interest of and for benefit of the ward.
For the umpteenth time, I urge you to pull every fiduciary file you have right now and start poring through them to make sure that every detail is in order. There should be no discrepancies, no questionable transactions, no unapproved withdrawals. Your accountings should be annual, with proper vouchers. If Mr. Brown’s experience still does not shake you out of your lethargy, re-read this post about the hair-raising Matthews v. Williams case. If you’re not willing to strap on the high level of responsibility and vigilance required in fiduciary matters, defer the case to an attorney who will.
As Phillip Thomas so eloquently put it on his blog:
“Any lawyer who has ever walked past the chancery courthouse knows that Brown’s story is complete and total B.S. Chancellors are sticklers for the rules and they want guardianship funds locked up tight. The suggestion that any chancellor would verbally approve bogus sounding investments and loans is preposterous, as is every other detail of Brown’s story. It is beyond preposterous.” [Emphasis in italics added by me]
If you’re not the altruistic type, or you don’t buy into the idealistic concepts of professional responsibility, then look to your own self interest and tighten up your fiduciary practice. It could save you a load of money — and possibly your license to practice law.
March 23, 2012 § Leave a comment
“I am an old man and have known a great many troubles, but most of them have never happened.” — Mark Twain
“Worrying is like sitting in a rocking chair. It gives you something to do but it doesn’t get you anywhere.” — English proverb
“Anxiety is inevitable in an age of crisis like ours … God does not ask you not to feel anxious but to trust him no matter how you feel.” — Thomas Merton
March 22, 2012 § Leave a comment
With around 400 substantive posts on this blog to date, and another 160 not-so-substantive, you can’t be blamed if perhaps you find it a challenge to dig up what you’re looking for. So here are some tips to help you find that elusive post you’re seeking, as well as to enjoy the blog in general.
Rooting Around …
- SEARCH. See that box on the right-hand panel with the word “Search” and a magnifying glass? Move your cursor over there right now and type in Unknown Heirs. Go ahead. I’ll wait. See? You are taken to a page with a selection of posts where that term appears. Try different terms, like child custody, publication, Albright, whatever. Just click on the title of the post you want to read, and Voila! Hint … If you’re searching for a rule, like MRCP 56, it’s best to use a search term for the substance of the rule rather than its number. “MRCP 56” might return every use of MRCP and the number 56, as in 56 So.3d 788.
- CATEGORIES (right panel). Under the Search Box is another box under the title “Search Older Posts by Category.” The box says, “Select Category.” When you click it, a drop-down menu will appear. Select a category and you will get a selection of all the posts in that particular category. It’s a good tool to start big — for instance, “Estates” — and refine your search with other tools.
- CATEGORY (left panel). So you’re reading a post about notice to creditors in an estate and wonder what other posts there might be on this topic. Click on a category and you’ll get a selection of the others in the same category.
- TAGS (left panel). Tags are like categories, only a little more refined. Click on a tag and you will find other posts that I aassigned the same tag. Tags are not neceessarily consistent, though, so this isn’t a sure-fire search tool.
- WHAT PEOPLE HAVE BEEN READING ABOUT. Over there on the right is this feature. It registers the most frequently viewed older posts in this 24-hour period. It’s like the “trending” function on some web sites. You might see something there that piques your interest.
- OLDER POSTS. Scroll down the page and you’ll see this legend with a list of months and years. Click on one and you’ll get a selection for all the posts for that particular month.
- PAGE JUMP. Go to the very bottom of the page — either scroll down or hit your “End” button — and you’ll find several boxes with numbers. “1” is this page. Click on another number to go to earlier pages.
12th District Info …
- HOME. At the top of the page are four buttons. Home is today’s page. When you’re through reading those posts you searched, click HOME to return here.
- ABOUT. This button is there for folks who wander here unawares and want to know exactly what all this nonsense is “about.”
- TAKING CARE OF BUSINESS. If you’re wondering how to get a case scheduled for hearing in the 12th District, or what a pre-adoption conference is and why it’s necessary, or how we handle irreconcilable differences divorces, or how to set an ex parte or Rule 81 matter, this is the tab you need to click.
- MY BACK PAGES. (Apologies to Bob Dylan) This tab gets you info about me, including contact, bio, disclaimers and more.
Checklists, Notebooks and Fair Use …
- I encourage you to copy posts you find useful. One way is to copy and paste. To print a post, click on the title and you will be taken to a page with only that post on it, which you can then print. If you try to print from the main, or “Home,” page, you will print out ten posts.
- The checklists particularly lend themselves to use this way. Print out the Albright checklist, for example, and have it in your file for your next custody trial. I actually keep a binder on the bench with all of the checklists. If you’re handling an estate, print out the checklist for closing an estate and track it through your handling of the matter to a conclusion so that you’re sure to do everything required in the proper order.
- Lawyers have told me they are printing out posts and making notebooks tabbed with subject matter according to how they use them. Great. I think this is a marvelous idea. And feel free to make copies of whetever you need to include in your trial notebook. If you have an upcoming trial with a thorny evidentiary issue and you find a post on point, copy it and have it handy. Caveat … Don’t cite me as authority — I’m merely a lowly trial judge — cite the case or other authority referred to in the post.
- You are welcome to copy anything here for your own private use in the practice and study of law, but not for commercial or for-profit use. If you use want to use anything from this site in a publication, please ask permission first and give credit.
Links and Comments …
- On the right panel are links to some blogs and web sites that you might find helpful. They are grouped under headings. “Courts and the Bar“ has links to the appellate courts, the very useful Second District web page, and the MSB page. “District 12 Law Firms“ has links to all of the web pages that I know of for law firms physically located in Lauderdale and Clarke Counties. If you want your link here, set up a web page and give me the link, and it will appear. “Lawyer Blogs“ includes links to blogs by lawyers around the state. These are informational or of general interest; not included are lawyer blogs that are marketing tools or self-promoting. A post highlighting some of these is here. Lawyer blogs that go un-updated for too long disappear from my blogroll. “Mississippi in General“ has links to blogs with Mississippi news or of interest to Mississippians. “Resources“ is a set of links to blogs that you might find helpful in your practice of law. “Schools“ links to the two Mississippi law school web sites. “Worth a Look“ is a selection of links that I find entertaining, or interesting, or simply quirky. Be sure to check out my favorite, Holiness Snake Handlers, which opens with the incomparably memorable line “Take my opinions with a grain assault.” These change from time to time, according to my whim and caprice.
- Comments appear under posts. All comments are moderated, so yours may not appear immediately after you comment. Comments are encouraged, particularly ones that raise questions that bear a closer look, as well as comments that prompt discussion. Filtered out are abusive comments and comments by laypeople castigating the courts and the legal profession; there are plenty of other forums where that sort of thing is enjoyed and encouraged.
March 21, 2012 § 3 Comments
We’ve talked here before about the futility of filing an appeal from a judgment that disposes of fewer than all of the issues that were pled and tried, and does not include an MRCP 54(b) certification.
The latest manifestation of the principle appeared in the COA case of Williams v. Claiborne County School District, et al., decided February 21, 2012. In that case, the school district complained in its cross-appeal that the trial judge erred by not granting it the $120,000 in damages it had asked for in its pleadings. Indeed, the chancellor did not even address the issue of damages.
Oops. On its own initiative (after having been alerted by the cross-appeal), the COA dismissed both the appeal and the cross-appeal because the judgment disposed of fewer than all the issues, and did not include an MRCP 54(b) certification by the judge, meaning that it was not a final, appealable judgment.
Another wasted trip to the COA. Think of those long, lonesome, solitary (albeit billable) hours working on briefs and record excerpts, on reply and rebuttal briefs, on research. Think of what the clients will say when they get the bills for all that time spent to produce nothing but a return to the starting line. Ouch.
As I’ve said before, if you feel that the judge has not addressed an issue so that you don’t have a final judgment, or if you’re in doubt about it, file a timely MRCP 59 or 60 motion and raise the point so that the judge can either (a) address the missing issue, or (b) schedule a trial on the missing point, or (c) amend the judgment to add a 54(b) certification.
March 20, 2012 § Leave a comment
In Coggins v. Coggins, handed down from the COA February 14, 2012, the appellate court was faced with the appellant’s claim that the chancellor erred by refusing his request to deduct rental investment expenses from gross income in order to arrive at adjusted gross income for calculation of child support.
The COA stated:
“¶19. The inclusion of income and deductions for calculating adjusted gross income for child support is primarily mandated by statute. According to section 43-19-101, in calculating gross income, the chancellor must consider ‘gross income from all potential sources,’ including wages and salary income, income from self-employment, and income from investments. As the chancellor explained, section 43-19-101(3)(b) lists several deductions that may be subtracted from the gross income figure, such as federal, state, and local taxes, social-security contributions, and mandatory retirement and disability contributions, but it does not list business expenses. Additionally, the Mississippi Supreme Court has allowed the deduction of legitimate business expenses in the case of a selfemployed payor-spouse. See Nix v. Nix, 790 So. 2d 198, 199-200 (¶¶3, 5) (Miss. 2001) (The chancellor considered the payor-parent’s legitimate business expenditures for reasons of equity, in order to determine available income for child support; he was a self-employed plumber.). However, the chancellor found no caselaw, nor do we, that allows for a deduction of expenses related to investments or supplemental business enterprises, which would be taken from the gross income of the payor-spouse. Therefore, in arriving at the adjusted gross income figure, the chancellor must include income from many sources, but not all expenses. The allowable deductions for this figure are statutory, and they differ from the allowable deductions for income tax purposes, upon which Bill appears to base his calculations. “
The court went on to point out that, although the statute allows for deduction of the expenses of self-employment, the appellant in this case was not self employed. The expenses he claimed arose out of investments that were a secondary source of income. His secondary employment resulted in a loss, and the COA said: “If [the appellant] opts to continue this rental venture at a loss, it should not be done to the detriment of his child.” The COA upheld the chancellor’s decision.
This case highlights the need for you to be quite familiar with with the child support guideline statute when you present child support issues to the court, and when you draft child support provisions in property settlement agreements. I urge you to read the guidelines and discover exactly what it is that should and should not be included in the calculation of child support.
While I’m on the subject, let me urge you (once again) NOT to list expenses on your 8.05’s as “mandatory” when they are not. The word “mandatory” so loosely used by so many of you is applied to all manner of deductions that simply do not meet the requirement of the statute. The statute limitss deductions to “legally mandated deductions.” That’s the exact phrase. So if there is a law that requires it to be deducted, it is a “legally mandated deduction.” That would include federal and state income taxes, social security, Medicare, and PERS for state employees. Health insurance (for the time being) is not legally mandated, nor are dental or cancer insurance, United Way, IRA contributions, etc., etc., etc. When you gratuitously label a deduction as “mandatory,” you are making the judge have to explain in the opinion why the deduction is not allowed. More work for the judge, which violates the cardinal rule — if you want to win, make it easier for the judge to find in your favor.
March 19, 2012 § Leave a comment
Litigation Misfire. (noun): 1. Litigation that fails to ignite at the proper point 2. A case that blows up in one’s face. 3. Any case in which none or few of the positive points your client told you about her case ever materializes at trial.
We’ve all had our misfires. No need to catalog them here. Some misfires happen despite your best efforts and most professional approach to the case. Others are the direct result of a lawyer’s failure to do his homework. When the misfire falls in the latter category, it can dearly cost your client, or you, or both of you. The cost of a misfire can be a daunting thing.
In the COA case of McKnight v. Jenkins, decided March 13, 2012, the tab came to $23,969.17. Here is what Judge Lee’s opinion said, beginning at ¶ 14:
“The chancellor ordered Holly to pay $19,956.67 in Walter’s attorneys’ fees and $4,012.50 in GAL fees. The chancellor found Walter’s attorneys’ fees had been incurred for his defense of the abuse and contempt allegations. The chancellor found sanctions would be appropriate due to Holly’s unsubstantiated slander of the chancellor who had previously been involved in the case; however, the chancellor did not attribute a specific amount of his award as sanctions. In regard to the contempt action, “[a] chancellor is justified in awarding attorney’s fees that are incurred in pursuing a contempt motion.” Elliott v. Rogers, 775 So. 2d 1285, 1290 (¶25) (Miss. Ct. App. 2000). In regard to Walter’s defense of the abuse allegations, the chancellor relied upon Mississippi Code Annotated section 93-5-23 (Supp. 2011), which requires a party alleging child abuse to pay court costs and reasonable attorneys’ fees incurred by the defending party if the allegations are found to be without merit. The chancellor found, pursuant to McKee v. McKee, 418 So. 2d 764 (Miss. 1982), the attorneys’ fees incurred by Walter were reasonable and necessary. We can find no abuse of discretion by the chancellor in awarding Walter attorneys’ fees.
¶15. In regard to the GAL fees, the chancellor determined Holly’s unfounded abuse allegations were the reason he appointed a GAL; thus, the chancellor contended Holly should be responsible for the GAL’s fees. Section 93-5-23 also requires the party alleging child abuse to pay court costs in addition to attorneys’ fees. GAL fees have been considered court costs. Foster v. Foster, 788 So. 2d 779, 782 (¶8) (Miss. Ct. App. 2000). Thus, it was proper for the chancellor to order Holly to pay the GAL fees.”
You can add to the ouch factor in this case the fact that Holly was unemployed at the time she was assessed these fees and costs. It matters not what her ability to pay is when the fees are assessed for contempt.
It goes without saying, or should, that you need to investigate the claims that your client brings to you, no matter how tempting that cash retainer looks. MRCP 11(a) specifically says that when the attorney signs the pleading as required:
The signature of an attorney constitutes a certificate that the attorney has read the pleading or motion; that to the best of the attorney’s knowledge, information and belief there is good ground to support it; and that it is not interposed for delay.
Those words are there for a reason. They impose an important and serious duty on you as an officer of the court not to burden the courts, opposing parties and counsel with frivolous or unfounded matters, to limit your pleadings only to those that genuinely state a cause of action, and to do your homework before you ever set the wheels of the courts in motion.
The payback for not complying with MRCP 11(a) is set out in MRCP 11(b). It’s interesting reading, and I won’t spoil the surprise for you by repeating it here, but you really should read it for yourself and not hear it for the first time from the bench. On March 15, 2012, the Mississippi Supreme Court upheld 11(b) sanctions in a case out of Rankin County, In Re Guardianship of B.A.D., which reversed and remanded on other grounds. You should read that case for its exposition of what it is like to face the wrath of a chancellor.
Don’t overlook Rule 2.1 of the Rules of Professional conduct, which requires you to act as an advisor to your client. As I have said here many times, you are not a mere clerk-typist for your client. Nor are you merely your client’s robotic alter ego. You are an independent professional whose highest duty is to advise. As a wise man once said, “About half the practice of a decent lawyer consists of telling would-be clients that they are damned fools and should stop.”
MCA § 93-5-23 states “If, after investigation by the Department of Human Services or final disposition by the youth court or family court allegations of abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney’s fees incurred by the defending party in response to such allegations.” The chancellor in McKnight could possibly have relied on that section, since he found the allegations to have been without foundation. I have taken the position that all of the elements of the statute have to be present in order to require the imposition of sanctions; i.e., there must be an investigation by DHS or final disposition by a youth court or family court, with a finding that the charges are without foundation. I refused to impose the statutory sanctions in a case where DHS found that the charges could not be substantiated because, by the time they investigated, the bruises on the child were too faded to make a clear finding. The fact that there were bruises convinced me that the charges were not “without foundation” within the meaning of the law, and DHS did not say they were without foundation. To me, sanctions should be carefully limited to appropriate cases so as to avoid a chilling effect on family members, neighbors, doctors, school officials and others who are in a position to report and perhaps put a stop to child abuse.
The Litigation Accountability Act, MCA 11-55-1, et seq. is something else to watch out for. It provides a cause of action against an attorney or party for meritless action, claim or defense, or for unwarranted delay or for “unnecessary proceedings.”
A caveat … the fact that I personally set a high threshhold for sanctions should not lead you to relax your standards. Professionalism demands it. And as a practical matter, your judge may see sanctions differently. I once saw a judge pop a lawyer, not her client, with a $1,500 sanction for failure to answer interrogatories after being ordered to do so. And I myself even assessed more than $20,000 in a case that had been tried by my predecessor, and which was reversed and remanded on a finding of no jurisdiction; the case law is clear that to pursue a case where there is no jurisdiction after you were put on notice is sanctionable, even where the chancellor allowed you to proceed to final judgment.
In my opinion, all sanctions should be judiciously weighed and never lightly imposed. Some lawyers seem to add requests for sanctions to almost every pleading they file, although those requests are, wisely, seldom presented for adjudication. Seems to me that the old saw, “what goes around comes around,” has particularly apt application to this subject.