DICTA

August 17, 2012 § Leave a comment

  • The Mississippi Law Journal online has an interesting Comment, authored by Jeffrey Brown, about the struggle of LGBTQ (lesbian, gay, bisexual, transgender, or questioning) for a harassment free education.
  • Are law journals of much benefit to practitioners? Law commentator Walter Olson in the Atlantic says no, in an article entitled Abolish the Law Reviews!
  • In a paper cited by Olson, Professor Ross Davies argues for a return to helpful legal scholarship.
  • A Calif. US Dist. Ct. judge ordered Oracle and Google, opposing parties in an intellectual property dispute, to disclose all financial ties to any bloggers who might have written about technical aspects of the smartphones in dispute between them. In the interest of full disclosure, I have no financial ties to anyone other than my wife and our financial accounts, my children and grandchildren, and, on the recipient side, to the State of Mississippi which deposits a paycheck into my account every month. Just sayin’.
  • Are judges’ expectations of lawyers as officers of the court too burdensome? Lonnie T. Brown, Jr. of the UGA School of Law thinks so in this research paper you can download.
  • The gradual disappearance of win-win thinking and its impact on our culture. A column by Bill Crawford.

YOU CAN TAKE THIS TO THE BANK

August 16, 2012 § 6 Comments

Many more years ago than I care to think about, when I could not have been more than ten years old, my sainted grandfather (paw-paw Walter, we called him) took me in tow and we walked hand in hand out of his appliance store, across South State Street in my little home town of Abbeville, LA, into First National Bank.

First National Bank of Abbeville was a serious place where adults went to perform esoteric rites beyond the ken of youngsters. It was a place of “business” where no childish frivolity was allowed. We entered together. There were the tellers in their crisp, short-sleeved white shirts and clip-on ties (all men), their pomaded hair and balding pates glistening in the fluorescent light. There were the marble-topped tables with brass fixtures and chained pens that patrons used to inscribe bank forms with the runes of commerce. There was an air of solemnity in the little walnut-panelled bank. People conducted their business in a sort of sacramental hush, as if the money and paper passed between them was a kind of commercial communion.

We went into a bank officer’s splendid office and sat in the leather-upholstered chairs facing him across his uncluttered, massive desk. A muted clock tocked out of view. Tasseled drapes hung across the window, obscuring the view of the whitewashed courthouse across the street, but allowing an afternoon splash of light. Some words were exchanged between the adults that I did not understand, but the officer smiled, reached into a drawer and pulled out a page of paper that my grandfather signed. My grandfather handed the man a couple of bills, whereupon the bank officer wrote something on an impossibly tiny book and handed it to me. From what little I understood of cursive writing at the time, I could make out my name on the cover of the book.

Back across the street in his store, my grandfather explained that I now had a savings account with a few dollars in it. The transaction had taken only a few minutes, but it made me feel like I had entered, or at least gotten a glimpse into, the mysterious realm of adulthood. I proudly took my passbook home and put it in as safe a private place as I could, considering the tribe of siblings I grew up with.

Fast forward more than fifty years.

I have had a miniscule savings account at a local bank for several years. The bank required me to open it with only $300 when I opened a home improvement line of credit, now paid off. Why this was required, I don’t know. But the money has languished there, earning pennies every quarter.

Or so I thought. I discovered that the bank has been charging my savings account an “account maintenance fee.” Now, I don’t know about you, but I had thought the deal was that, in return for the safekeeping of my money as long as I left it there, the bank would pay me an almost vaporous amount of interest and have nearly free use of it to earn money for itself.

Nope. They have been charging me a fee to “maintain” something that requires no maintenance as far as I can discern. They also unauthorizedly paid my safe deposit box rent out of the account, depriving me of the documentation I need to include that on my 1040. Then I discovered that they had even charged my account for a payment against the line of credit, which caused the little account to dip below some line of tolerance, costing me a few more farthings. By the way, I was dinged for the extra charge despite the fact that the loan was paid off in full that month and the bank even had to send me an overpayment refund of several hundred dollars. My miserable little account was being nibbled to nothing by the ducks of banking.

I went to the bank and sat down with an 11-year-old “vice president” (okay, I concede he probably was older, but danged near everybody who doesn’t yet have gray hair looks that age to me). I brought with me five checks totalling several thousand dollars, aiming to create an escrow account for a property my wife and I own, and I told the youngster that if we could reach an agreement whereby the bank would let me “save” my money there, instead of pilfering my account whenever the bank needed petty cash, I would deposit those checks into the existing savings account. Alas, to make a long story short, the “vice president” and I could not reach an understanding, and I approached the teller with a “memo advice” from the “vice president” to give me my few remaining dollars. The teller at first told me that there would be a $10 charge to close the account. I told her just to take whatever else the bank felt it needed of my money and give me what few dollars might be left so that I could get out of there before it disappered altogether, or, worse, before they calculated that I owed them money. Her supervisor reversed that closing charge, which made me deliriously happy to be able to escape with an additional $10 of my own money.

I left the bank and went to a credit union down the street. After waiting a tad, I was directed into the offices of the “Member Services” representative, a stern woman who obviously took her duties quite seriously. Her first pleasantries to me were “Driver’s license and Social card,” with her hand out palm up. After which she typed at a computer uninterrupted for several minutes. Our conversation next ventured into home address, mailing address, home phone, work phone, my employer, what the account was for (so she could figure out what kind of account I needed, I guess), and on and on, each question punctuated by a couple dozen computer keystrokes. At some point, I meekly interrupted to inject that I needed my wife to be on the account, which she brushed aside with the statement that “She will need to come here personally to do that.” I pictured my wife taking off work for an hour or so to provide the exact, same information that I was already providing.

Accessibility was the reason that I had wanted an account at the nearby bank or credit union in the first place. I imagined what a convenience it would be to have the money within a block or two of work. At that point, though, as the “Member Services” representatives clacked away on her computer, it dawned on me that the mind-numbing bureaucracy of dealing with these once-neighborly financial organizations cancelled out any perceived advantage of geography. Sitting there while being processed with no greater care than a chicken gone to glory being packaged for a meat rack at Winn-Dixie, it occurred to me that my wife and I already had a joint CMA account at a local brokerage, and I really didn’t need all this. Sure, the CMA account was not conveniently within walking distance, but it was, definitely, a mere phone call away from a transaction. I halted the credit union process, took my DL and SS card, picked up my sheaf of checks, thanked the lady for her trouble, and retreated out of doors into the breathtaking sauna that is Mississippi in August, but that seemed to me to be the fresh air of sanity.

Mulling over my experience, I wondered when and just how we transitioned from the friendly banker who could take a moment out of his busy day to open a tiny savings account for a little boy who might one day grow into a profitable customer, into the grasping, impersonal institutions we have to deal with today. My first impulse was to blame it on the financial meltdown and the resultant spasm of regulation, or maybe it was the nearly irrational fear of terrorism and its possible use of our banking system for all manner of dastardly deeds, or maybe the banks were scrambling for a few bucks in the deflated economy like everone else.

But then I thought back several years ago when I was in practice, and several years before financial collapse. I had had a trust account at Deposit Guaranty since the 70’s, always with impeccably unobtrusive, silent service. DG’s successor at first did fine. Then they were taken over by a financial conglomerate out of Nashville, and started imposing service charges on my trust account. I was able to talk to the few officers remaining from the DG days, all of whom were local, to get the practice stopped. Soon after they were all retired or moved on to other businesses, though, the practice started up again. My secretary got it corrected yet again, for a few months, and then it started up again and could not be changed.

So I took time out of my day to travel downtown to the marble-halled mega-bank and met with an efficient young (no gray hair, so I guess she was around 11) female corporate representative wearing a gold plastic conglomerate name plate. The young lady was nice enough, I suppose, but there was a disconcerting air about her, a hint of what you might see on the Military Channel when they depict a Nazi prison camp with its smiling but insistent matron-in-charge who addressed any disagreement with a painful snap of the crop. I explained to her as tactfully as I could that the law did not allow me, or any other lawyer, to earn any interest on a trust account, and that other banks did not charge a service charge. The advantage to her bank, I tried tactfully as I could to lay out for her that the bank could use the funds free of charge until I needed to do a transaction. She responded through glazed eyes that her mega-bank generally dealt with large corporate accounts, and that they were really not equipped to deal with (read “not interested in dealing with”) these “small accounts” like my little $30,000 trust account. I pointed out that $30,000 was a lot of money to me and my clients, and that I would prefer to have it in a local bank that would not find my little sum too much of a bother … and would not charge me a service charge. I walked out of there with a check and opened a new trust account at another bank.

All of this made me think about how the banks and credit unions, once proud to render a community service to handle your trust account, or your little estate or guardianship account, now want that business only if it’s worth millions and only if the bank stands to make lots of $$$$.

So, I’m sad that we’ve come to this, even in my little Mississippi town where I’ve lived and made my career, where there are lots more people of modest means who need honest, friendly, helpful banking services than there are multi-trillionaires with enough money at hand to buy the entire town (FYI for any of you anonymous trillionaires … I will sell you guys my residence for cash money at appraised value).

Now, I am not advocating for a return to the Andy-of-Mayberry days of my childhood banking experience. Somewhere, though, we’ve made something so easy, that could even be pleasurable, into a major travail. Am I naive and unrealistic in thinking that we should be able to do business without being so, well, business-like? Am I being unreasonable?

Maybe in my dotage I am morphing into another whiney Andy Rooney. I hope not. I try to be reasonable about most things. Just don’t get me started about air travel nowadays. See, we took this trip to Baltimore back in May, and …

RECENT AUTHORITY FOR UNEQUAL DIVISION

August 15, 2012 § Leave a comment

From the earliest days after the Ferguson case established equitable distribution as the law for division of marital estates in Mississippi, the rule has been that the division need not be equal, but it must be equitable. See, e.g., Wells v. Wells, 800 So.2d 1239, 1243-44 (Miss.App. 2001).

Over the years the concept of equitable distribution evolved at the trial court level into a concept of equal division, so that lawyers quit pushing the argument that their clients were entitled to a larger slice of the marital asset pie. But there are cases where lawyers have succeeded on the point, and you might find them helpful in your own practice.

Several cases in the past year or so offer some authority you might find helpful in achieving an unequal division:

  • Cox v. Cox, 61 So.3d 927 (Miss.App. 2011). This is a case where the presumption that the wife’s “homemaker” indirect contribution to the accumulation of marital assets was rebutted by the proof. The chancellor’s award of 25% of the marital estate to the wife was upheld where the husband had made most of the direct financial contribution to acquisition of the marital assets, and she did not contribute to the husband’s business. The husband also paid the wife’s pre-marital debt, funded a business venture of hers that failed, and he paid for her to take courses in school and to otain a real estate license. The husband also paid to provide household assistance in the form of a domestic and yard help. This is one of those rare cases where the homemaker presumption was rebutted, but it reminds us that although the presumption mandates a rebuttable finding of equal contribution, it does not mandate an equal division.  
  • Powell v. Powell, 87 So.3d 495 (Miss.App. 2011), decided November 11, 2011, is a case we’ve discussed here before. In this case the disabled husband was awarded a greater share of the marital estate based on his greater contribution to the accumulation of wealth, wife’s greater draw during the marriage from the family business, and wife’s marital misconduct. A significant feature of this case is that the COA upheld the chancellor’s findings as to valuation despite scant evidence offered by either party on the point.
  • Kimbrough v. Kimbrough, 76 So.3d 715 (Miss.App. 2011). In this Ittawamba County case, the chancellor awarded wife 24% of the marital estate. The unequal distribution resulted from the husband being awawded $166,000 in equity in the former marital residence versus the award of $4,400 in equity to the wife. The disparity was due to the fact that the home was husband’s debt-free, pre-marital asset, and the only contribution wife had made to the value was her payments against a home improvement loan. The court observed that “We do not look at the division of one asset in isolation” (at ¶19). [An interesting side note: the court’s opinion cites another case for a quite lopsided division: “See Redd v. Redd, 774 So.2d 492, 496 (¶ 15) (Miss.Ct.App.2000) (reversing on other grounds but stating that a 77% to 23% division of the marital property, standing alone, would not have been a ground for reversal).”]
  • Allgood v. Allgood, 62 So.3d 443 (Miss.App. 2011), was a case in which the chancellor awarded husband 65% of the marital assets. As in Kimbrough, the unequal division stemmed from an unequal division of the equity in the former marital residence. Husband’s share of the marital estate was enhanced by $82,000 he had contributed to the home’s equity. As the court pointed out, although a party’s commingling of separate funds may transform their character into a marital asset, the trial court may nonetheless adjust the equities and award a greater share of the aset value to the party who made the contribution of separate funds.  
  • Jenkins v. Jenkins, 67 so.3d 5 (Miss.App. 2011). In this case wife was awarded a smaller percentage of the parties’ assets. The trial court considered contributions and expenditures of each spouse to the seven-year marriage, and that husband owned the bulk of the marital assets prior to the marriage and expended pre-marital earnings on improvements to the property during the marriage, and it was wife’s addiction to prescription medications that caused marital separation. Most of the wife’s share of the marital estate consisted of her retirement account. At the time of the divorce she was unemployed, with an application for Social Security disability payments pending.
  • Bond v. Bond, 69 So.3d 771 (Miss.App. 2011). This is my favorite case of the bunch, and one I’ve posted about here before. The appeal was actually filed by the husband, complaining that the chancellor was too generous in awarding the adulterous wife ten percent — you read that right, 10% — of the marital assets. He thought she should have received naught. Judge Maxwell’s exposition on marital fault and its role in equitable distribution is something you should read and digest. I am still scratching my head over why Mr. Bond filed an appeal in this case.  

RULE 81 CLAIMS ANOTHER VICTIM

August 14, 2012 § 5 Comments

There are judges and lawyers who absolutely hate MRCP 81. I don’t know of anyone who really loves it. Most who don’t hate it just try to operate within its bounds, as they understand it, and go about their business.

There is a vast graveyard of legal shipwrecks on the shoals of Rule 81. The latest took a not unfamiliar, if long-delayed, route to disaster.

To make a long story short, the plaintiff filed a petition for partition in 2005, and issued MRCP 81 summons for the defendants. Some kind of proceeding took place in July after the defendants had been served, but no order was entered and no other action taken of record.

Five years later, with a different chancellor on the bench, the plaintiff awoke to the fact that the case was sitting idle. Realizing that one necessary defendant had never been served with process, the plaintiff issued process for her. She appeared in response, and the case was continued to a later date. When neither she nor any of the other defendants appeared on the later date the chancellor entered a judgment granting the plaintiff the relief he requested, a partition by sale.

The defendants filed an MRCP 59 motion arguing against the partition by sale, and complaining that they were not properly served with process. The chancellor overruled the motion, and the defendants appealed.

In Brown, et al. v. Tate, rendered August 7, 2012, the COA reversed and remanded the case because no order had been entered continuing the hearing on the the 2005 summons.

Here are a few learning points from the case you might want to consider:

  • If you continue your hearing, for whatever reason, from the date set in the MRCP 81 summons, be sure that you obtain an order of the court dated the day set for hearing in the summons, continuing it to another day certain. If you fail to do this, your process is dead, and you will have to start over.
  • If one or more defendants show up on the day set in the summons, make sure they sign off on your order of continuance, and make sure you give them a copy of the order.
  • Instead of just reciting that the case is continued to another day, include the following information in your order: (1) that all defendants were called in the courtroom and in the corridors of the court house; (2) name the defendants who did appear; (3) name the defendants who did not appear; (4) describe what actions were taken in court, if any; (5) the date, time, and place of the next hearing; (6) a statement that each defendant who appeared was provided with a copy of the order and that each understands that a judgment may be entered against them if thhey fail to appear at the next hearing; and (7) the signature of each defendant who appeared.
  • Ask the judge to add, in the continuation order, a requirement that each defendant file an answer before the date set for the continuation hearing. An answer to a Rule 81 matter is not required by the rules, but MRCP 81(d)(4) permits the court to require an answer ” … if it deems it necessary to properly develop the issues.” And “A party who fails to file an answer after being required to do so shall not be permitted to present evidence on his behalf.” By including the requirement for an answer in your continuance order, you are effectively setting up a default situation for those who do not answer.

This particular case is one that fell through the cracks and should have been scuttled by an MRCP 41(d) notice years before it resurrected itself. The doltish chancellor should have made that plaintiff’s lawyer start over when he came before the court with that old file. Oh, and lest you think I am being too harsh in referring to that judge as doltish, that judge was I.

DIAMONDHEAD IN THE ROUGH

August 13, 2012 § 1 Comment

Carolyn and Anthony lived together in Louisiana without benefit of marriage. They purchased a home together in Diamondhead, on the Mississippi gulf coast, which they titled as joint tenants with right of survivorship. They had the idea that they would later marry, move from Louisiana, and take up residence in their Hancock County home.

Anthony paid the entire $274,000 purchase price, along with the utilities, taxes, insurance and property owners association dues. Carolyn testified that she used some of her personal property to furnish the house, and she put up drapes and made other cosmetic improvements.

As things sometimes do, the relationship soured, and Anthony filed a petition in chancery court to partite the property by sale, claiming it was not susceptible to partition in kind. He also asked for an adjustment of equities, since he had made the greater contribution to the acquisition. Carolyn denied that Anthony should have the adjustment, since the parties were on an equal legal footing in relation to the property by virtue of the joint tenancy.

The chancellor found that to award Carolyn any money from the partition sale would be an unjust enrichment to her. He also cited MCA 11-21-9, providing for an adjustment of equities between the parties, and 11-21-33, which deals with owelty. He awarded Anthony 100% of the proceeds of sale of the property.

In a rather brief opinion rendered in the case of Jones v. Graphia, on August 7, 2012, the COA affirmed the chancellor. Judge Griffis, writing for the majority, distinguished cases cited by Carolyn and upheld the chancellor’s adjustment of equities per the statute, citing the appellate court’s limited scope of review.

Judges Carlton and Maxwell wrote dissents that are worth a read, particularly if you do a lot of this kind of work.

To me, the significance of this decision is that it comes in the wake of the Cates v. Swain case decided by the COA on April 17, 2012, and authored by Judge Maxwell. That is the case, you may recall, that held an unmarried, same-gender couple not to have acquired any equitable interest in assets accumulated during the relationship. I posted about the case here.

The obvious distinction between the two cases is that in Cates v. Swain the parties intentionally did not title the real property jointly, while in Jones v. Graphia the property was titled in joint ownership.

Once again, if you are advising unmarried couples or individual parties to such a relationship, the implications of these two cases are clear: if the parties do not formalize their relationship, at least one, and maybe both, will have no legal protection. Jones was protected, as the majority opinion pointed out, in the sense that if Graphia had died she would have been vested with 100% title to the property. The court does not say so, but it is implicit in the opinion that, had Jones made any contribution to the accumulation of equity in the property, she would have been entitled to something in the adjustment of equities. Likewise, since Elizabeth Cates was not on the title, and the parties did not have any enforceable contractual obligation to one another, she had no claim to any interest in the property.

“QUOTE UNQUOTE”

August 10, 2012 § 2 Comments

“The peace of God it is no peace, but strife closed in the sod. Yet let us pray for but one thing — the marvelous peace of God.” — William Alexander Percy

“If we want peace we must work for justice. Justice is the root of peace just as peace is its fruit. Equity demands that the goods of this world be justly distributed; that equal opportunities be provided for all to enjoy the economic and social benefits that the world has to offer; and that we give each person his due. We cannot lull our conscience by giving to others in charity what is in fact due to them in justice. A culture of peace is built on justice.”  —  Cardinal Paul Poupard

“But let justice roll on like a river, righteousness like a never-failing stream!”  —  Amos 5:24

TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #3

August 9, 2012 § Leave a comment

This is the eighth in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.

TOP TEN TIP #3 …

Use the trial checklists as your template for proof.

Nearly every substantive issue in chancery has a set of “factors” that the judge is required to apply in analyzing the proof and deciding the issues. If you are not putting on proof of each factor that applies in your case, you are wasting your and the court’s time, your client’s money, and your malpractice premiums.

The best way I know of to make sure you address all the applicable factors is to reduce them to a “checklist” that you can tick down as you put on your case, until you have covered them all. It’s a subject I’ve talked about here many times. I call it “trial by checklist.”

If you go to the “search by category” window up there to the right and click on “checklists,” you will find ths posts I’ve made on the subject. Or, you can click this link and get a menu of checklist posts.

How seriously do I take checklists? Well, I have printed them all out and have them in notebooks handy to counsel’s table in my courtroom in Meridian. I have my own notebooks in the bench in every courtroom where I sit.

A few years ago I heard a chancellor tell of a custody modification case he heard where the defendant-mom’s attorney put on not a shred of evidence as to the Albright custody factors. Now, put yourself in that judge’s shoes. The chancellor is charged with being the superior guardian of the child, and with doing whatever is in the child’s best interest. Yet in that case the lawyer failed to put on any evidence of the factors that the judge is required by law to consider and analyze in adjudicating custody. The judge’s decision must be supported by substantial evidence. If you don’t put that evidence in the record, you are putting the judge in a near-impossible position.

Make your own checklist notebook. Let’s say you have a contested divorce involving custody and all of the “big” issues. Just make copies of the Albright factors for custody, Louck factors for claiming the dependency exemption, Ferguson factors for equitable distribution, Armstrong factors for alimony, and McKee factors for attorney’s fees, and have them handy in your file or trial notebook. Then tailor your evidence to flesh them all out, and Voila! you will have proven your case.

As you will see, there are checklists for various issues. Use them and win.

When you prove all the elements of your case, you are not only doing what you were paid to do as a lawyer for your client. You are also making the judge’s job easier, which will always go a long way to improving your track record — with your clients and with the chancellor.

WHEN DOES RES JUDICATA OPERATE AS A BAR?

August 8, 2012 § 5 Comments

Lawyers from time to time will argue, or try to, that particular relief is barred by the operation of res judicata.

Here’s a succinct statement of the rule:

We recognize that the doctrine of res judicata precludes a party from litigating claims that were raised or could have been raised in the original action. Howard v. Howard, 968 So. 2d 961, 973 (¶27) (Miss. Ct. App. 2007). Four identities must be present before a subsequent action may be dismissed on the basis of res judicata:

(1) identity of the subject matter of the original action when compared with the action . . . sought to be precluded; (2) identity of underlying facts and circumstances upon which a claim is asserted and relief sought in the two actions; (3) identity of the parties to the two actions, and identity met where a party to the one action was in privity with a party to the other; and (4) identity of the quality or character of a person against whom the claim is made.

Id. “If the four identities are present, a party may not raise a claim in a subsequent action.” Id. “This is true regardless of whether all grounds for possible recovery were litigated or asserted in the prior action, as long as those grounds were available to a party and should have been asserted.” Id. (citation omitted).

Rogers v. Rogers, COA, July 24, 2012, ¶26, fn 2.

Res judicata has no application in a modification case involving alimony or child support, since those matters are never truly final, and are always subject to modification based on a change of circumstances. See Campbell v. Campbell, 357 So.2d 129, 130 (Miss. 1978); Austin v. Austin, 91 So.2d 1000, 1005 (Miss. App. 2007).

STUNG BY ATTORNEY’S FEES

August 7, 2012 § 2 Comments

The usual standard in chancery court is that a party will not be entitled to an award of attorney’s fees unless the party proves an inability to pay. It’s a subject we’ve touched on before.

The exception to the rule is when the court finds a party in contempt. In that case, no inability to pay need be shown. And, when you represent the contemnor, you are wise to advise your client in advance to be prepared to get stung by those fees if the case is tried and he or she is on the losing side.

The latest manifestation of these principles is in the COA case of Rogers v. Rogers, decided July 25, 2012. In Rogers, the chancellor had found Mr. Rogers to have perpetrated a fraud on the court and assessed him with $1,605 in his ex-wife’s attorney’s fees. The COA reversed the finding of fraud (subject of another post), and Mr. Rogers complained that (a) there was no basis to assess fees absent the fraud finding, and (b) that there was insufficient evidence to support the award. Here’s the pertinent part of Judge Carlton’s decision:

¶29. Our jurisprudence generally provides that “[a]n award of attorney’s fees is appropriate in a divorce case where the requesting party establishes an inability to pay.” Gray v. Gray, 745 So. 2d 234, 239 (¶26) (Miss. 1999) (citations omitted). Additionally, a chancellor may also award attorney’s fees based on a party’s wrongful conduct, as stated in Chesney v. Chesney, 849 So. 2d 860, 863 (¶12) (Miss. 2002), as follows:

There have been a number of prior decisions upholding the award of attorney’s fees to one party where the other party has been found to be in contempt of court or where that party’s actions caused additional legal fees to be incurred. See A & L, Inc. v. Grantham, 747 So. 2d 832, 844-45 [(¶60)] (Miss. 1999) (holding that awarding attorney’s fees under certain circumstances, regardless of the party’s ability to pay, is not a reward, but reimbursement for the extra legal costs incurred as a result of the opposing party’s actions); Douglas v. Douglas, 766 So. 2d 68, [72 (¶14)] ((Miss. Ct. App. 2000) (where a party who is entitled to the benefits of a previous judicial decree is forced to initiate further proceedings to gain compliance with the previous order of the court, an award of attorney’s fees is appropriate).

See also McCarrell v. McCarrell, 19 So. 3d 168, 172-73 (¶¶18-19) (Miss. Ct. App. 2009). Further, the issue of whether to award attorneys’ fees in a divorce case constitutes a discretionary matter left to the chancellor, and this Court is “reluctant to disturb” such a finding. Young v. Young, 796 So. 2d 264, 268 (¶11) (Miss. Ct. App. 2001).

¶30. Chancellors are instructed to apply the McKee factors in granting or denying attorney’s fees. See McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982). However, the chancellor’s September 28, 2010 final judgment, where the chancellor awarded Julianne $1,605 in attorney’s fees, shows no mention of, nor specific findings on, the McKee factors. The chancellor stated only that “evidence reflected that [Julianne’s] attorney’s fees and court costs totaled $1,605.”

¶31. Our supreme court has held where there is substantial evidence in the record supporting the chancellor’s award of attorney’s fees, the omission of specific findings cannot be deemed reversible error. See Varner v. Varner, 666 So. 2d 493, 498 (Miss. 1995) (no McKee findings); Prescott v. Prescott, 736 So. 2d 409, 416 (¶31) (Miss. Ct. App. 1999) (no finding of inability of recipient to pay). We further note that a specific, on-the-record finding of inability to pay is not necessary where attorney’s fees are awarded due to the other party’s failure to comply with discovery requests. Russell v. Russell, 733 So. 2d 858, 863 (¶16) (Miss. Ct. App. 1999). A specific finding of inability to pay is also not required when attorneys’ fees are assessed against a party found to be in contempt. Mount v. Mount, 624 So. 2d 1001, 1005 (Miss. 1993).

¶32. In the case before us, the chancellor recognized Charles’s continued failure and refusal to comply with the divorce decree, including his failure to make alimony payments, failure to provide medical-insurance coverage, and failure to pay Julianne’s uncovered medical expenses. The chancellor also found Charles in contempt of court for his failure to provide adequate medical-insurance coverage for Julianne. For these reasons, we affirm the chancellor’s award of attorney’s fees to Julianne. This assignment of error is without merit.

The significance of Rogers with respect to attorney’s fees awards is two-fold: (1) it reiterates the rule that the inability-to-pay test is inapplicable when the assessment of fees is due to contempt or misconduct; and (2) it clarifies that the amount of proof and documentation necessary to support the award for contempt or misconduct is not as great as in an inability-to-pay case.

Notwithstanding the more relaxed standard for contempt and misconduct cases, I encourage you to put on proof of the McKee factors and documentation of your time in the case, so that it is in the record if you need it. A post on what you need to prove attorneys fees is here.

DISMISSAL FOR FAILURE TO PROSECUTE

August 6, 2012 § Leave a comment

MRCP 41(b) says, “For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.” Except for a few circumstances spelled out in the rule, such a dismissal operates as an adjudication on the merits, which means that it is with prejudice and res judicata.

In the COA case of Wing v. Wing, decided July 17, 2012, the court upheld a chancellor’s decision dismissing an action for failure to prosecute.

At the trial level, a conservatorship had been established for Loleta Wing in 2005, on petition of Todd and Tammy Kinney, grandchildren of Loleta. As part of their action, they sued Loleta’s son, Jimmy Wing, who was co-trustee and a co-beneficiary of a Wing family trust, for accounting, claiming he had abused his confidential relationship with Loleta. A couple of months later they dismissed the suit.

After Loleta died in November, 2007, Jimmy submitted an accounting to Todd and Tammy for the remaining trust assets. They responded with a suit in February, 2008, charging that Jimmy had used his confidential relationship with Loleta to persuade her to transfer assets to him, and that he improperly used the trust for his own benefit. They also sought an injunction, and after a hearing, the court, on February 28, 2008, froze all assets of the trust.

Jimmy filed responsive pleadings, and the parties entered into an agreed preliminary injunction. There ensued informal exchanges of information and an informal accounting by Jimmy, until December 21, 2010, when Jimmy filed a motion to dismiss for failure to prosecute. The chancellor dismissed the action pursuant to MRCP 41(b), and Todd and Tammy appealed.

Writing for the court, Judge Carlton said:

¶14. The record reflects substantial evidence of a clear record of inexcusable delay by Todd and Tammy. Before Jimmy filed his motion to dismiss on December 21, 2010, no action of record had taken place for almost an entire year. Todd and Tammy’s first action of record in practically a full year came only after Jimmy filed his motion to dismiss. The record supports the chancery court’s assessment that Todd and Tammy’s filing of the third motion to compel was clearly reactionary to Jimmy’s motion to dismiss, as they did not file the motion to compel until after Jimmy notified them of his intention to file the motion to dismiss. Precedent establishes that it is not what occurs after a plaintiff is made aware that his or her case may be dismissed for failure to prosecute that is dispositive of a motion to dismiss; instead, it is whether the case presents a clear record of delay due to a plaintiff’s failure to prosecute before the case actually is subject to dismissal. See M.R.C.P. 41(b). See Hillman v. Weatherly, 14 So. 3d 721, 728 (¶22) (Miss. 2009) (In affirming a circuit court’s dismissal of a complaint with prejudice for failure to prosecute, the supreme court held that the test for determining whether a plaintiff’s conduct is dilatory focuses “on the plaintiff’s conduct, not on the defendant’s efforts to prod a dilatory plaintiff into action.”). [Fn 7] Furthermore, we recognize that it was Todd and Tammy’s responsibility as the plaintiffs to prosecute their case, not the defendant’s nor the chancery court’s. See Cox, 976 So. 2d at 880 (¶50) (citing M.R.C.P. 41(b)). The chancery court, taking these considerations into account, found that Todd and Tammy’s dilatory conduct before Jimmy’s motion to dismiss was filed supported dismissal. We find that the record supports this conclusion. Thus, we conclude that the chancery court did not abuse its discretion in finding that a clear record of delay existed in this case.

   Fn 7. See also Holder v. Orange Grove 7 Med. Specialties, P.A., 54 So. 3d 192, 198 (¶22) (Miss. 2010) (“We also may consider whether the plaintiffs’ activity was reactionary to the defendants’ motion to dismiss, or whether the activity was an effort to proceed in the litigation.”).

The court considered whether the trial judge had abused his discretion, and whether lesser sanctions would have been appropriate, and rejected both arguments. The COA’s analysis of the factors applicable in deciding whether there has been a failure to prosecute is something you should take the time to read.

Many family law cases seem to get onto a side track and fall into inaction. When they involve the best interest of children it’s not likely that the trial court would consider dismissal, but, as Wing points out, there are lesser sanctions for failure to move your case forward that can impact your client’s and even your pocketbook, as well as your ability to be effective in representing your client.

I use scheduling orders in all contested cases to move things along, and I impose an expiration date on temporary orders as an incentive not to dawdle with divorces. I suppose that “for failure of the plaintiff to comply with … any order of the court …” such as a scheduling order, a plaintiff could jeopardize his or her case by inaction.

Wing is a case you need to read, not only to understand your own duty to move your cases forward, but also to see how you can use MRCP 41(b) as a defensive weapon. Remember, that dismissal is with prejudice, by the express terms of the rule.

While we’re talking about dismissals, remember that if you receive a clerk’s notice of dismissal for inactivity in excess of a year, per MRCP 41(d), you need to take substantive action immediately, or else your case will be dismissed. A letter to the clerk or a “Notice to Keep Case on Active Docket” or the like just won’t cut it.

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