February | 2013 | The Better Chancery Practice Blog

ANOTHER WAY TO FLOP ON APPEAL

February 28, 2013 § 4 Comments

Vinh Nguyen entered into a contract with Dustin and Roslyn Gifford to purchase real estate. When Vinh refused to purchase the property, the Giffords sued for breach of contract.

Vinh filed no responsive pleading to the suit and made no appearance, and the Giffords applied for entry of default. They obtained a default judgment in which the court ruled that the parties had entered into a valid contract, but that Vinh had failed to perform, so that the Giffords were entitled to specific performance, or $375,000, plus $2,000 earnest money, if Vinh failed to perform within thirty days, plus nearly $17,000 in attorney’s fees. The judgment was to be reduced if the Giffords sold the property.

Four months later Vinh filed a motion to set aside the judgment, which the court denied. The court did, however, reduce the judgment by $275,000, because the Giffords had sold the property.

Vinh appealed, raising four issues that certainly appear to have some meat on them:

Whether Vinh’s contact with the Giffords’ lawyer to tell him that the claim was contested triggered the 3-day notice requirement of MRCP 55(b);
Whether there was valid service of process on him;
Whether a lawsuit was proper due to an arbitration agreement; and
Whether Roslyn Gifford was entitled to a judgment since she never signed the contract.

Some quite pithy points, to be sure. Any of the first three could undoubtedly lead to a reversal and remand if upheld. So how did the appellate court resolve them?

Well, we’ll never know for sure, because Vinh’s brief on appeal cited no authorities at all. Not a single one. The COA, in a 9-1 decision, pointed out that “Failure to cite authority in support of claims of error precludes this Court from considering the specific claim on appeal.” The court found that it was procedurally barred from considering the unsupported issues on appeal, and affirmed the chancellor’s ruling.

It should go without saying that the purpose of an appeal is to persuade the learned appellate judges that the trial judge has made some error of law. To do that, one must cite some supportive case law, statute, regulation, court rule, learned treatise, or other recognized legal authority that bears up one’s position.

Without that authority, your client will go the way of Mr. Vinh, to that dark place where one goes to ponder the burden of a $117,000 judgment, with interest, and without further recourse, except against his own lawyer.

A FEW THOUGHTS ON DISABILITIES OF MINORITY

February 27, 2013 § 4 Comments

In a case before me recently, one of the lawyers filed a motion to set aside an agreed judgment executed by a nineteen-year-old woman by which she had agreed that the father of her child could have custody. The lawyer argued that she was incompetent by virtue of her age to execute and be bound by such a judgment. The motion got me thinking that maybe a few thoughts about disabilities of minority would be in order.

MCA 93-19-13 provides that all persons 18 years of age or older “shall have the capacity to enter into binding contractual relationships affecting personal property,” unless otherwise disqualified or prohibited by law. It goes on to allow persons 18 or older to sue or be sued in their own right over such contracts.
“We therefore hold section 93-19-13, (Supp. 1980) effectively removes the disability of minority of all persons 18 years or older for the purpose of entering into contracts affecting personal property including the right to settle a claim for personal injuries, to execute a contract settling the claim, and to accept money in settlement of the claim.” Garrett v. Gay, 394 So.2d 321, 322-23 (Miss. 1981).
Garrett also stated that an 18-or-older minor has the right to deal with his or her own choses in action, which “is the right of bringing an action, or a right to recover debt or money, or a right of proceeding in a court of law to procure the payment of a sum of money, or a right to recover a personal chattel or a sum of money by action, or, as it is defined by statute, a right to recover money or personal property by a judicial proceeding.”
The statute pertains to personal property rights only, and does not extend to real estate. MCA 93-19-1 provides for removal of disabilities of minority to authorize the minor “to sell and convey, to mortgage, to lease, and to make deeds of trust and contracts, including promissory notes,” with respect to his or her interest as effectively as if he or she were 21 years or older.
MCA 93-19-13 provides that a married minor (Note: MCA 1-3-27 defines “minor” as a person under the age of 21) is under no disability with respect to bringing or defending a divorce or separate maintenance action, child support and custody and any other marital issues between the parties. The statute specifies “married” minors, and would not appear to embrace unmarried minors.
MCA 93-5-9 essentially mirrors 93-19-13.
Minors may not vote. Article 12, Section 241, Mississippi Constitution, except as provided in the 26th Amendment to the U.S. Constitution.
Minors may not waive process. Rule 4(e), MRCP.
Minors may not select their own domicile, but must have that of the parents. Boyle vs. Griffin, 84 Miss.41, 36 So. 141, 142 (Miss. 1904); In re Guardianship of Watson, 317 So.2d 30, 32 (Miss. 1975); Mississippi Band of Choctaw Indians vs. Holyfield, 490 U.S. 30, 40; 109 S.Ct. 1597, 1603 (1989).
Minors may not enter into binding contracts regarding personal property or sue or be sued in their own right in regard to contracts into which they have entered. Section 93-19-13, MCA.
Minors may not have an interest in an estate without having a guardian appointed for them. Section 93-13-13, MCA.
Minors may not be bound by contracts for the sale of land, and may void them at their option. Edmunds vs. Mister, 58 Miss. 765 (1881).
Minors may not choose the parent with whom they shall live in a divorce or modification; although they may state a preference, their choice is not binding on the Chancellor. Section 93-11-65, MCA; Westbrook vs Oglesbee, 606 So.2d 1142, 1146 (Miss. 1992); Bell vs. Bell, 572 So.2d 841, 846 (Miss. 1990).
Minors may not after emancipation be bound by or enforce contracts entered into during minority except by following certain statutory procedures. Section 15-3-11, MCA.
Minors may not legally consent to have sexual intercourse. Section 97-3-65(b).
Minors may not legally consent to be fondled. Section 97-5-23(1).
Minors are protected by an extended statute of limitations. Section 15-1-59, MCA.

There may be more, and I have not gone back and checked all of the authority above. Before using any of this, be sure to verify the citations and what they say.

A DOUBLE DIVORCE MISFIRE (OR MISFORE, OR MISFAIR)

February 26, 2013 § 5 Comments

The case of Fore v. Fore, handed down February 19, 2013, by the COA, is one of those cases that leaves you scratching your head in wonderment. Oh, and the Fore decision was written by Judge Fair. Fore by Fair. You can’t make this kind of stuff up.

Anyway, what happened was that Darlene Fore, age 57, filed for divorce charging her husband, Cotton, age 70, with post-separation adultery. Cotton counterclaimed, charging Darlene with post-separation adultery. Darlene added that, if she were to be denied a divorce, she wanted separate maintenance.

As the opinion states, “The divorce was vigorously litigated, as evidenced by the twenty-five single-spaced pages of the trial court docket. For eighteen months the parties enthusiastically pursued all means of discovery allowed by the Mississippi Rules of Civil Procedure. Private investigators were hired. Contempt pleadings, motions for continuances, mediation attempts, amendments of pleadings, and volumes of subpoenas were filed, pursued, and argued.”

The chancellor bifurcated the trial so that the divorce issues would be tried first and separately from the remaining issues.

The trial took five days and produced a trial transcript of more than 800 pages.

The judge rendered a seven-page opinion denying either party a divorce, finding that neither had proven the ground pled by clear and convincing evidence. Oh, and he denied Darlene’s plea for separate maintenance because she testified that she would not return to live with Cotton under any circumstances.

So, after the dust cleared, neither party had a divorce, and Darlene was out in the cold with no support and no Cotton to go home to.

The COA affirmed, deferring to the chancellor’s scope of authority on the facts, and finding that his conclusions of law were correct.

What is the head-scratcher here is that, if both parties wanted a divorce, why did they not just enter into a consent? What would be the down side? If alimony and equitable distribution were issues on trial of the consent, they could still have the satisfaction of putting on proof of how despicable each other were while being assured that there would be a divorce. It’s hard for me to understand, with the consent statute, why this would happen.

It may be that one of the parties out of pure stubbornness refused the idea of a consent. That does happen from time to time. When I practiced I had to cajole and convince more than one divorce client that a consent was the best way to go, and that we were not giving anything up.

After I had written this, I found that Phillip Thomas had a post on his blog on this very case. As a lawyer who does not do divorce work, he found the outcome exceedingly difficult to understand. Join the crowd, Mr. Thomas.

ALIMONY APPLES AND ALIMONY ORANGES

February 25, 2013 § 1 Comment

It was long the rule in Mississippi that only several forms of alimony were available, either by adjudication or agreement, and any variance from those forms was either reversible error or would be charcaterized by the appellate court as what its features dictated. See, e.g., Bowe v. Bowe, 557 So.2d 793, 795 (Miss. 1990). Unless otherwise specified by the trial court or from the context, alimony was presumed to be periodic. Wray v. Wray, 394 So.2d 1341, 1345 (Miss. 1981).

Then the appellate courts began to approve so-called “hybrid” agreements that mixed features of property settlement with alimony features, as in East v. East, 493 So.2d 927, 929 (Miss. 1986), where unmodifiable payments of $5,000 a month to the ex-wife would continue whether husband remarried or dies, but would terminate on wife’s death. The courts continued to affirm an array of such arrangements, but cautioned in McDonald v. McDonald, 683 So.2d 929, 933 (Miss. 1996), that the parties should be careful in drafting agreements with hybrid arrangements, and that, if the agreement is unclear, the payments will be presumed to be periodic alimony.

The problem with “hybrid” alimony is in the drafting. The devil is in the ambiguity.

The latest incarnation is Hollis v. Baker, a COA case decided February 12, 2013, in which the parties had agreed to the following provision:

[Hollis] shall pay [Baker] $500 . . . in alimony per month beginning on the first day of the month after the sale of the marital home is finalized. [Hollis] will increase alimony to $1,000 . . . per month beginning the month after child support ceases, to continue for the life of [Baker]. In the event [Baker] dies, these $1,000 . . . per month payments shall be made to the minor child until the death of [Hollis].

Hollis sued to modify the obligation because Baker had remarried, and Baker took the position that the payments were unmodifiable. The chancellor ruled for Baker because Hollis had agreed to continue making the payments even beyond Baker’s death, which logically would extend beyond her remarriage. Hollis appealed.

The COA reversed, and, since so much of the opinion, written by Judge Roberts, is of some import for practitioners, I quote at length here:

¶11. Over fifteen years ago, the Mississippi Supreme Court urged parties, attorneys, and judges to carefully draft property-settlement agreements to avoid future confusion and litigation over ambiguously drafted provisions. McDonald v. McDonald, 683 So. 2d 929, 932-33 (Miss. 1996). In McDonald, the supreme court stated:

[The] freedom to contract is not absolute, however, and parties and judges should be mindful of the traditional characteristics of lump[-]sum and periodic alimony in drafting their agreements and decrees for alimony payments. When possible, it would be advisable for parties and judges to pattern their alimony agreements and decrees for non-modifiable lump[-]sum alimony according to established precedent of this Court.

Id. at 932. The case before us is illustrative of the need for clear and careful drafting of property-settlement agreement provisions, particularly as these provisions relate to periodic monthly payments being considered by the parties as alimony or as a contractual division of marital property.

¶12. Hollis’s sole issue on appeal involves the chancery court’s finding that the provision in the agreement regarding alimony required him to continue paying Baker alimony even after she remarried. According to Hollis, this alimony provision is permanent periodic alimony, making it subject to termination upon remarriage of the alimony recipient.

¶13. There are four types of alimony available in Mississippi: periodic, lump sum, rehabilitative, and reimbursement. West v. West, 891 So. 2d 203, 212 (¶20) (Miss. 2004). “As a general rule, periodic alimony has no fixed termination date; instead, it automatically terminates at the death of the obligor or the remarriage of the obligee.” Id. at (¶21) (emphasis added). There is no dispute that permanent periodic alimony is modifiable and terminable even within the context of a property-settlement agreement. See Taylor v. Taylor, 392 So. 2d 1145, 1146-47 (Miss. 1981); Stone v. Stone, 385 So. 2d 610, 613 (Miss. 1980); Hughes v. Hughes, 221 Miss. 264, 268, 72 So. 2d 677, 678 (1954). Additionally, it is accepted that there are other provisions of a property-settlement agreement that are not modifiable. See McDonald v. McDonald, 683 So. 2d 929, 932-33 (Miss. 1996). Ultimately, the issue before us is whether the chancery court erred in determining that this provision was a property settlement provision and not permanent periodic alimony subject to termination upon remarriage of the recipient.

¶14. At issue is a portion of the agreement titled Child Custody and Property-Settlement Agreement that was signed by both Hollis and Baker prior to their divorce and incorporated into their divorce decree by the chancery court. Among other things, this agreement detailed the amount of alimony Hollis would pay Baker. Paragraph IV, subsection H of the agreement provides as follows:

¶15. This provision was modified by the chancery court on July 17, 2006. The chancery court stated in its July 17, 2006 decree and judgment that “the alimony [Hollis] is currently paying should be reduced from the sum of $500 . . . per month, to $350 . . . [per] month, effective July 1, 2006.” By modifying this provision, the chancery court acknowledged that this alimony was permanent periodic alimony and not some type of hybrid of alimony and property settlement as Baker claims. It is well settled that permanent periodic alimony is subject to modification and ceases upon the recipient’s remarriage or the payor’s death. See McDonald, 683 So. 2d at 931; Hubbard v. Hubbard, 656 So. 2d 124, 129 (Miss. 1995); Bowe v. Bowe, 557 So. 2d 793, 794 (Miss. 1990); Wray v. Wray, 394 So. 2d 1341, 1344 (Miss. 1981).

¶16. In the dissent authored by Judge Fair, he would find that the chancellor was correct in viewing Hollis’s obligation to continue paying alimony as a non-modifiable contract obligation between the parties. To support this position, he cites to In re Kennington’s Estate, 204 So. 2d 444, 445 (Miss. 1967) involving a settlement agreement between husband and wife that he would pay her a monthly sum until she died or was remarried and that it would be a binding obligation upon his estate. The following language was included in the provision:

[Husband] shall pay [wife $750] on June 1, 1954, and [$750] on the first day of each successive month thereafter throughout the lifetime of said [wife], or until she remarries. If she remarries, this [provision] shall thereafter be ineffective but this [provision] shall not be affected by the death of [husband]. [Husband] binds himself, his heirs, executors and assigns, to this covenant and obligation to her even after his death.

Id. at 445-46. In its opinion, the supreme court quoted the following language of the chancery court’s opinion: “The attorneys for the respective parties understood the legal differences between alimony and a property settlement and carefully and skillfully avoided the death of the then husband having any affect on the agreed payment each month. . . . In the [above-quoted provision] of this agreement[,] there is no doubt as to the intention of the parties.” Id. at 447. The supreme court then stated that “[i]t was the manifest intention of the parties that the obligation to make the payment should survive the death of [husband].” Id. at 449. We submit that the facts of the current case are easily distinguishable from the facts in Kennington primarily on the ground that the provision in the current case is completely silent as to whether alimony terminates upon her remarriage. In the above quoted language of Kennington, the provision explicitly states that it is the intent of the parties to have the $750 payments continue beyond the husband’s life. Thus, it was abundantly clear that as long as wife did not remarry, she was entitled to payment by either husband or husband’s estate for the remainder of her life.

¶17. The provision in the current case is simply silent on whether Hollis would continue paying Baker alimony after her remarriage. Moreover, in the present case, a prior judicial determination that the monthly payments for support were alimony subject to modification had been made by the chancellor, a determination from which Baker did not appeal. Such circumstance did not exist in Kennington. Without such an explicit provision requiring Hollis to continue alimony payments beyond Baker’s remarriage, we decline to require Hollis to continue such payments. Baker has a new husband capable of providing adequate spousal support.

¶18. Because this type of alimony terminates upon the subsequent marriage of the recipient, Hollis’s obligation to continue paying Baker alimony was terminated when Baker remarried in April 2010; therefore, we reverse and render the chancery court’s decision on this issue and the finding that Hollis was in contempt for his missed alimony payments after Baker remarried.

Whether you agree or disagree with the COA’s conclusion here, the point is made that, unless you specifically address survivability and modifiability of alimony with respect to remarriage, death and changes in circumstances, the questions arising therefrom will be resolved in favor of holding it to be periodic alimony, with all of the attendant and resulting attributes. In other words, the default setting is periodic alimony, unless you clearly, unequivocally and unambiguously change the setting.

I am sure Ms. Baker was somewhat disappointed with the outcome of this case. She now has no alimony, where before she anticipated that it would continue even beyond the grave for the benefit of her child.

Maybe this is one of those cases where the MSSC will give it another look and another spin. But I would not count on it. Draftsmanship would have made all the difference here.

“QUOTE UNQUOTE”

February 22, 2013 § Leave a comment

“When it comes to the future, there are three kinds of people: those who let it happen, those who make it happen, and those who wonder what happened.” — John M. Richardson, Jr.

“The best thing about the future is that it comes one day at a time.” — Abraham Lincoln

“The future depends on what you do today.” — Mahatma Gandhi

ONE MORE CONSIDERATION OF RECONSIDERATION

February 21, 2013 § 8 Comments

I posted here not too long ago about the vernacular use of “Motion for Reconsideration” as the post-trial motion that is MRCP 59.

It’s pretty widespread. I recently had a four-page post-order motion challenging a temporary ruling of mine. The motion did not invoke any MRCP at all, but every page included the words “reconsideration” or “reconsider” at least once. When I took the bench and announced that I would treat the motion as made per MRCP 59 (which was an indulgence, since I am convinced that MRCP 59 relief lies only as to final judgments; See, Trilogy Communications, Inc. v. Thomas Truck Lease, Inc., 733 So.2d 313, 317-318 (Miss.App. 1998)), the proponent lawyer corrected me and said that it was actually a MRCP 60 motion for relief from judgment. Excuse me.

Judge Southwick back in 1999 addressed the subject in the case of Barber v. Balboa Life, 47 So.2d 863 (Miss.App. 1999), where he stated in footnote 3 at page 869:

“Pursuant to Rule 59 of M.R.C.P., relief following judgment is on motion for a new trial, not on motion to reconsider. Motions to reconsider, as previously known in practice and procedure in Mississippi prior to the adoption of the Mississippi Rules of Civil Procedure, have for all purposes and intent, been abolished and superceded [sic] by the aforementioned Rule 59 of M.R.C.P. It is suggested that the appellant apply Rule 59 of M.R.C.P. in the future under similar circumstances.”

That was 14 years ago. The footnote apparently didn’t have much impact.

I think the main reason most lawyers ask for reconsideration rather than rehearing, as the rule states, is that they absolutely do not want a rehearing. I mean, who really wants to retry what one has already tried? What they want the judge to do is take another look at the facts and/or the law and render a different result. That’s what rehearing has always looked like in chancery where the fact-finder and the judge of the law are one and the same. When the trial is over the fact-finder is not scattered to the far reaches of the county, as is the case with a jury. The fact-finder is right there in in the courthouse where she rendered the judgment in the first place. And she just might realize when confronted with the motion that a different outcome might be more equitable.

But the rule expressly says “rehearing.”

We judges are supposed to look past the form to the substance. When you use confusing language and do not invoke the proper rule, at best you will confuse the judge. At worst, you may find you’ve messed up your record for appeal.

WORTHWHILE READING ON ATTORNEY’S FEES

February 20, 2013 § 1 Comment

A subject of vital interest to lawyer is, or should be, what it takes to get an award of attorney’s fees at trial. The cases on the subject are all over the proverbial ballpark, so I found the following language from Judge Fair’s specially concurring opinion to the COA’s decision in Jordan v. Jordan, handed down December 11, 2012, affirming Judge McKenzie, to be quite helpful.

¶23. I write separately to address the award of attorney’s fees by a trial judge, a subject the Mississippi Supreme Court has discussed directly only twice in the last five years.

¶24. It is not disputed by judges and practitioners that the “best practice” in awarding fees is a ruling by the trial judge in which each of the factors set out in McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982), is specifically addressed.

¶25. Ronald argues that the lack of such a discussion should require mandatory reversal as is the case in other “factor determination” cases. See Lowrey v. Lowrey, 25 So. 3d 274, 280 (¶7) (Miss. 2009) (factor tests, as provided in Ferguson and Armstrong, must be considered on the record in every case); Powell v. Ayars, 792 So. 2d 240, 244 (¶8) (Miss. 2001) (holding failure of trial court to address each Albright factor in awarding custody was reversible error).

¶26. Not so, says the Mississippi Supreme Court. In West v. West, 88 So. 3d 735, 747 (¶57) (Miss. 2012), the supreme court upheld the chancellor’s award of attorney’s fees “because it was not manifestly wrong.” The court explained that “[a]lthough the trial judge did not include an analysis of the McKee factors in his judgment, his award was not unreasonable, so we affirm.” Id. at (¶58) (citation omitted).

¶27. The same standard was applied to a circuit court. In Collins v. Coppers, 59 So. 3d 582, 593 (¶35) (Miss. 2011), the court noted:

The trial judge began his discussion of the reasonableness of the defendants’ attorneys’ fees by noting that his analysis was to be guided by the McKee factors . . . . The judge noted that this litigation has been ongoing for over four years, requiring several hearings, and the pleadings are voluminous. After considering those factors, the court’s knowledge of what is charged for legal services in the area, and all other [McKee ] factors, the trial judge found that the amount of attorneys’ fees submitted by the defendants was reasonable.

¶28. While I would continue to recommend an on-the-record analysis of each McKee factor to support an award of attorney’s fees, the failure to do so has not been considered reversible error.

That’s about as good a practice guide on the subject as you will find anywhere.

Remember that, in a divorce case, you must establish inability to pay before the judge can reach the issue of reasonableness. Gray v. Gray, 745 So.2d 234, 239 (Miss. 1999). After you have laid that predicate, then the question becomes whether the chancellor had sufficient evidence to support his decision on attorney’s fees, whether or not all of the McKee factors are proven or addressed. A case illustrating these points is Tatum v. Tatum, decided December 11, 2012, by the COA.

FAILURE TO AMEND

February 19, 2013 § 1 Comment

It’s pretty common for lawyers to file pleadings subsequent to their initial pleading with updated allegations, added issues, and the word “Amended” prominently displayed in the document’s title. Quite often the lawyer on the other side treats the subsequent pleading(s) as the one(s) at issue, and the proof proceeds accordingly.

That practice, however, is not what the rules require, and, as we shall see, can cost your client big time. The proper procedure to amend pleadings is set out in MRCP 15:

(a) Amendments. A party may amend a pleading as a matter of course at any time before a responsive pleading is served, or, if a pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within thirty days after it is served. On sustaining a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), or for judgment on the pleadings, pursuant to Rule 12(c), leave to amend shall be granted when justice so requires upon conditions and within time as determined by the court, provided matters outside the pleadings are not presented at the hearing on the motion. Otherwise a party may amend a pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within ten days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders.

and

(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions, occurrences, or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.

So to amend after the deadline in R15(a), you have to get leave of court. Otherwise, that “Amended” pleading is a nullity.

That’s what happened in McKnight v. Jenkins, decided February 14, 2013, by the MSSC.

Holly McKnight filed a petition to modify custody against Walter Jenkins, the father of her child whom she had given custody in a prior judgment of the court. Walter countered with a counterclaim for contempt and for modification. The contempt allegation was based on Holly’s alleged failure to return all of the child’s belongings at the conclusion of visitation. Some time before the date set for hearing, Walter filed a motion to amend his pleading to add the allegation that Holly had failed to pay her share of the child’s medical expenses, but Walter never presented the motion to the court.

Following a hearing, the chancellor denied Holly’s petition to modify, but found her in contempt for failure to pay the medical bills, and ordered her to pay Walter $21,000 for her share.

The MSSC reversed, pointing out that in order to recover on a contempt claim, there must be a pleading putting the other party on notice. The unamended pleading simply did not support the relief granted. By failing to get a court order granting leave to amend, Walter’s award of $21,000 was reversed.

There is language in the opinion to the effect that the parties understood that the issue of contempt for failure to pay the medical bills was not properly before the court, and the judge acknowledged as much, but he went ahead and adjudicated contempt anyway, which was error. Of course, had the issue been tried without objection, Walter’s lawyer could have made a timely motion to conform the pleadings to the proof, as set out in MRCP 15(b):

(b) Amendment to Conform to the Evidence. When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the maintaining of the action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. The court is to be liberal in granting permission to amend when justice so requires.

February 18, 2013 § Leave a comment

State Holiday.

Courthouse closed.

REVENGE OF THE PONY-BIRD

February 15, 2013 § 1 Comment

Don’t you just hate that whooshing sound of a joke sailing right over your head?

Like when the Chinese People’s Daily online reported that the American media had named N. Korean leader Kim-Jung-Un the “Sexiest Man Alive.” >WHOOSH!< It was a joke, man! The American article was published in The Onion. (I hope I don’t need to explain what that means).

I imagine it would be especially distressing to expound in a scholarly fashion on a particular subject only to find out that the authority or data on which that scholarly opinion was a >WHOOSH!< joke.

Like Michael J. Bean and Melanie J. Rowland, who authored a book entitled The Evolution of National Wildlife Law. It’s certainly a worthy subject; I’ll grant that. On page 5, the authors touch on the subject of legal disputes over ownership of new breeds. In footnote 5 on that page, they state:

To illustrate the bizarre results that can sometimes happen when courts consider such questions, see the Canadian case of Regina v. Ojibwa, 8 Criminal Law Quarterly, 137 (1965-66), (Op. Blue, J.), described in United States v. Byrnes, 644 F.2d 107, 112, n. 9 (2d Cir 1981). The Canadian court concluded that a pony saddled with a down pillow was a “bird” within the meaning of a statute defining the term as a “two legged animal covered with feathers.” The court reasoned that the two legs were the statutory minimum, and that the feather covering need not be natural.

Clue: Op. Blue, J. = Opinion by Judge Blue. Or, in Canadian parlance, Blue, J. As in Blue Jay. The bird.

You see, it was a joke. Regina v. Ojibway was a joke, a scholarly one, to be sure, but a joke nonetheless. It was a parody of legal reasoning. I posted about this faux opinion here before, pointing out that ” … scarily, it could easily be mistaken for the real thing.” I guess so. >WHOOSH!<

Thanks to Colette Corr.

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