MEET THE SPECIAL GENERAL GUARDIAN
March 28, 2013 § 2 Comments
The governor signed a bill into law on March 14, 2013, that will introduce the concept of “Special General Guardian” to our jurisprudence.
SB 2375, which goes into effect July1, 2013, addresses an increasingly frequent, and troubling, phenomenon — the absent parent. More and more, we are seeing cases in chancery where the parents simply abandon responsiblity for their child or children to relatives or even neighbors. Drugs are the most common reason, but so are immaturity, mental illness, and incarceration.
Under our current system, the person who wants to take responsibility for the child must apply to the court for either a guardianship or custody. A guardianship requires an attorney, accountings, notices to creditors, and on and on. A custody action usually entails litigation because even irresponsible parents balk at losing custody.
Under the new law, codified at MCA 93-13-37, “If the minor ward has a father or mother but no parent able to take responsibility for the minor, and the minor’s assets do not include any real property, cash-on-hand of no more than Two Hundred and Fifty Dollars ($250), and personal property worth no more than One Thousand Dollars ($1,000), and the court finds that it would be in the best interests of the minor, a special general guardian who is related to the minor by blood or marriage may be appointed for the minor.” An attorney is not required, and the court “shall waive” annual or final accountings. At any time that any realty, personalty or monies of the ward greater in value than the initial limits come into the hands of the special general guardian, he or she must comply with all requirements of the law pertaining to general guardians, and, in addition, must seek directions from the court as to the disposition of the assets.
The law also provides an abbreviated procedure for closure, which does not necessarily require a final accounting.
This provision will definitely meet a pressing need in chancery court. The general guardianship statutes do not quite fit this situation. Also, many grandparents (by a large percentage the most frequent petitioners) in these cases are already financially pressed and are getting no financial help from the natural parents, and they find it difficult to divert funds to legal expenses that they would prefer to spend on their new responsibilities.
SOME SAGE DIVORCE ADVICE
March 27, 2013 § Leave a comment
WordPress has a feature for us bloggers that shows the search terms that brought readers to our sites. Randy Wallace of Clinton used the search terms he collected on his blog as a platform for a Q&A for divorces.
Here’s a link to his post from March 22, 2013 Search terms……….Ask Randy, which I think any family law practitioner would find to be spot on.
While you’re at it, Randy’s post from June of last year 40 Things …… make that 41 NOT to do during your divorce is a masterpiece.
… AND ANOTHER NON-SUPPORT WRINKLE
March 26, 2013 § Leave a comment
Picking up where we left off yesterday …
Another specie of non-support agreement presents itself when the parties agree that husband will support the child or children in his care, and wife will support the child or children in her care, with no child support changing hands.
In Roberts v, Roberts, decided March 19, 2013, by the COA, the court found no error in the chancellor’s decision modifying child support to eliminate the father’s duty to pay the mother, due to the fact that one child had come to live with the father, leaving one child behind with the mother, based on the parties’ extra-judicial agreement. The court stated that, “Because each parent had primary physical custody of one child, we do not find that the chancellor abused his discretion when he held that neither Scott nor Stephanie was obligated to pay child support.”
A similar situation arises when one parent has the child or children half the time. We see it every now and then in this district with oilfield workers, who work two-weeks out and two-weeks in, and there is a shared custody arrangement. Same with parents who rotate custodial periods.
The logic is almost irrefutable in those cases that it makes no sense to order the father to pay the mother child support, and the mother to send child support in turn to the father.
I say “almost irrefutable” because there are cases where there is such a disparity in income that I order the higher income parent to pay some support to the other parent, just so that the children will not have strikingly different standards of living in each household. In one case, the father worked offshore earning $70,000 a year, and the mother worked part-time in a convenience store. The parties wanted me to approve an agreement that each would support the child in his or her custody. I refused, because although each parent had one child living with him or her, it was only fair that the father pay child support so that the child with him would not live “in the lap of luxury,” while the other child with the mother would live near destitution.
The duty of the parent to support the child who is with him or her is distinguishable from the situation where the parties simply waive child support altogether. The former is allowed because the child is going to be supported; the latter is not allowed because there is no duty of support at all.
NON-SUPPORT AGREEMENTS
March 25, 2013 § 3 Comments
I am regularly presented PSA’s and agreed judgments that include a provision that the non-custodial parent will not pay any child support to the custodian. I don’t like it, for reasons that I have expounded on here before.
In my opinion, such agreements are not only undesirable, they are void.
The case of Houck v. Ousterhout, 861 So.2d 1000 (Miss. 2003) may be dispositive. Timothy James Houck and his former wife, Guyolyn Ousterhout, had been involved in various modifications and contempt actions as their children moved in varying numbers from household to household. In 1996, after several inconclusive skirmishes in court, they entered into an agreed judgment that recited that “[m]aterial changes ha[d] occurred in the life of Timothy … which prevent[ed] him from being able to pay his child support as directed. They agreed that Timothy would pay Guyolyn $1,500 in exchange for her waiver of any claim to “past, present and future child support payments,” and further that they agreed “to forever release one another from any obligation, now or in the future, of child support payments by or to either party.”
Notwithstanding the agreement, the parties found themselves yet again in litigation, in which Guyolyn asked, among other things, for nullification of the agreed order. The chancellor did void the agreed judgment as against public policy, and awarded Guyolyn a judgment against Timothy in the sum of $89,848.65. Timothy appealed.
The MSSC affirmed:
¶ 8. The modification relieving Houck of any obligation to pay child support to a custodial parent is null and void. Child support payments are made to the custodial parent for the benefit of the child. Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992); Lawrence v. Lawrence, 574 So.2d 1376, 1381 (Miss.1991). The child’s right to his parent’s support cannot be bargained or contracted away by his parents. Tanner, 598 So.2d at 786; Calton v. Calton, 485 So.2d 309, 310-11 (Miss.1986).
¶ 9. We have consistently held that child support payments vest in the child as they accrue. Once they have become vested, just as they cannot be contracted away by the parents, they cannot be modified or forgiven by the courts. Tanner, 598 So.2d at 786; Varner v. Varner, 588 So.2d 428, 432-33 (Miss.1991); Premeaux v. Smith, 569 So.2d 681, 685 (Miss.1990); Thurman v. Thurman, 559 So.2d 1014, 1016-17 (Miss.1990); Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990); Brand v. Brand, 482 So.2d 236, 237 (Miss.1986). Each payment that becomes due and remains unpaid “becomes ‘a judgment’ against the supporting parent.” Tanner, 598 So.2d at 786; Brand, 482 So.2d at 237; Cunliffe v. Swartzfager, 437 So.2d 43, 45-46 (Miss.1983); Howard v. Howard, 191 So.2d 528, 531 (Miss.1966). The only defense thereto is payment. Tanner, 598 So.2d at 786; Varner, 588 So.2d at 433. That two of the children are now emancipated does not preclude Ousterhout from seeking recovery of the arrearage from Houck. Tanner, 598 So.2d at 786; Varner, 588 So.2d at 433.
¶ 10. Accrued child support payments cannot be extinguished by a court: “A court cannot relieve the civil liability for support payments that have already accrued.” Hailey v. Holden, 457 So.2d 947, 951 (Miss.1984) (citing Cunliffe, 437 So.2d at 43; Duncan v. Duncan, 417 So.2d 908 (Miss.1982); Howard, 191 So.2d at 528). We have found a chancellor to be in error for suspending execution on a judgment for past due child support. Brand, 482 So.2d at 238-39. We have likewise held that a chancellor erred in finding that payment of only that part of the past due child support which had accrued prior to the warring couple’s protracted child support litigation extinguished his liability. Cumberland, 564 So.2d at 847-48; see also Thurman, 559 So.2d at 1016-17 (Where a supporting parent had paid roughly half the amount owed under a prior decree for two months and none during the third month in question, the chancellor erred in finding that the parent was liable only for the difference between the unpaid amounts and the greatly reduced modified monthly obligation.). [Emphasis added]
To me, the principle is crystal clear: the chancellor can not approve an agreement that relieves a parent of the duty to support his or her child, either prospectively or retroactively.
ANSWERS TO WICKED MISSISSIPPI TRIVIA REDUX
March 22, 2013 § 4 Comments
Here are the answers …
1. McKinley Morganfield and Chester Burnett are two world-renowned Mississippians. What were they famous for, and by what names did we know them?
Answer: Blues musicians Muddy Waters (Morganfield) and Howlin’ Wolf (Burnett).
2. What was the name of US President James K. Polk’s plantation in what is now Grenada County?
Answer: Yalobusha.
3. What and where was the second oldest military academy (after West Point) in the US, and the first educational institution in the Mississippi Territory?
Answer: Jefferson College, near Washington, Mississippi, in Adams County. Jefferson Davis studied there, and John James Audubon was a professor there from 1822-23. Aaron Burr was arraigned there for treason. It ceased operation in 1964, and is now a state park site.
4. What now-nationwide organization was first established in 1909 in Crystal Springs?
Answer: The PTA.
5. The first franchised Holiday Inn was located in which Mississippi city?
Answer: Clarksdale.
6. Where does the “Southern cross the ‘Dog?” and what does that phrase mean?
Answer: In Moorhead, where the Southern RR was intersected at a 90-degree angle by the old Yazoo & Mississippi Valley RR (aka Yazoo & Delta, or YD = “Yellow Dog” or, simply ‘Dog), said to be the only 90-degree RR intersection in N. America. It’s mentioned in W.C. Handy’s “Yellow Dog Blues” and several other blues songs. Although the line is abandoned now, there is a monument at the site, and the crossed rails are preserved.
7. Casey Jones, a resident of Jackson, Tennessee, met his famous death in Vaughn, Mississippi. In what Mississippi town did he reside from 1893-1896?
Answer: Water Valley.
8. The adjoining towns of Pittsburgh and Tullahoma were consolidated on July 4, 1836, to form which Mississippi city?
Answer: Grenada.
9. Jesse James robbed a bank in which Mississippi city?
Answer: Corinth. On December 7, 1874, the Tishomingo Savings Bank was robbed, and witnesses attributed it to the James-Younger gang. Some witnesses claimed he was not with his gang when the robbery took place, and, indeed, he was seen in a train robbery in Kansas the following day.
10. A traditional belief of the Choctaw people is that they first appeared on earth when they emerged from a cave near the “Mother Mound” in Mississippi. What is the mound called, and where is it?
Answer: Nanih Waiya, about 15 mi. NE of Philadelphia.
11. Avalon, a defunct village in Carroll County, is the home town of which famous Mississipian?
Answer: Blues artist Mississippi John Hurt.
12. When he raided CSA President Jefferson Davis’s Brierfield plantation near Vicksburg, Ulysses Grant stole – or “confiscated” – one of Davis’s horses that the Union commander used through the rest of the Civil War. What did the General name his stolen horse?
Answer: “Jeff Davis.” Grant’s primary mount was “Cincinnatus,” but Jeff Davis the horse served as a replacement.
13. Name the community founded in the Mississippi Delta in 1887 by descendants of Davis Bend, a utopian slave community established by Joseph Davis, older brother of Jefferson Davis.
Answer: Mound Bayou.
14. What was the original name of the site that became Jackson before it was known as LeFleur’s Bluff?
Answer: Parkerville.
15. Which Laurel native became an internationally acclaimed soprano with the New York Metropolitan Opera?
Answer: Leontyne Price.
16. Which of Mississippi’s yacht clubs has the distinction of being only the second to be established in the U.S.?
Answer: Pass Christian Yacht Club, founded in 1849. The New York Yacht Club, founded in 1844, was the first.
17. Who is “The Sage of Tippo?”
Answer: Noted jazz musician Mose Allison, of Tippo, in Tallahatchie County.
18. Ronald Reagan launched his 1980 campaign for President as the Republican party nominee at what Mississippi event?
Answer: The Neshoba County Fair. He delivered a speech that drew criticism because he used the phrase “I believe in states’ rights” in the county where three civil rights workers had been murdered 16 years before. States’ rights had been considered by many to be a code phrase used in the 1950’s and 60’s for segregation.
19. On May 26, 1736, a combined force of 1,200 French and Choctaws, under command of Bienville, was defeated by Chickasaw defenders in the Battle of Akia, in what present-day Mississippi county?
Answer: Lee, about 3 mi. S of Tupelo. The name of the village is actually “Hikia” in Chickasaw, which means erected, or set up.
20. The fictional Dr. Leonard “Bones” McCoy, chief medical officer of the Starship Enterprise in the original Star Trek series, had a Mississippi connection. What was it?
Answer: He attended Ole Miss.
21. Just before the Civil War, 92.5% of this Mississippi county’s total population were slaves–the highest concentration of slaves in the United States.
Answer: Issaquena. The 1860 U.S. Census reported a total of 7,244 slaves held in Issaquena County, and of 115 slave owners, 39 held 77 or more slaves
22. What is the oldest newspaper published in Mississippi?
Answer: The Woodville Republican, since 1823.
23. At 86.5%, this Mississippi county has the highest percentage of African American population of any county in the United States. Which is it?
Answer: Jefferson.
24. What was the historic, now defunct, road that entered Mississippi from Alabama in what is now Lowndes County, crossed Noxubee, Kemper, Newton, Jasper, Jones, Marion, and Pearl River Counties before crossing into Louisiana at the Pearl River twenty miles west of Poplarville, Mississippi?
Answer: The Jackson Military Road, established at the insistence of General Andrew Jackson to facilitate the movement of forces south for defense of New Orleans. It was authorized by Congress in 1816, and was completed in 1820, under supervision of Jackson himself. Roads and streets with names such as “military road” and “Jackson Military Road” can still be found along the route.
25. Name the four official sites of the state capital through its history.
Answer: Natchez, Washington, Columbia and Jackson. After Jackson was occupied and burned in the Civil War, other provisional seats of government were Columbus, Macon, Enterprise and Meridian.
Bonus Question: What was the unusual object that fell from the sky in an 1887 hailstorm in Bovina?
Answer: A 6″ x 8″ gopher turtle encased entirely in ice.
VANISHING ATTORNEY’S FEES IN A PATERNITY ACTION
March 21, 2013 § 2 Comments
Tash Solangi filed suit against Kasey Croney to establish paternity and to obtain custody of the parties’ minor child, Caleb. Much of the trial was devoted to the parties’ custody conflict. At the conclusion of the hearing, the court awarded Kasey physical custody, gave the parties joint legal custody, changed the child’s name, and assessed child support. The chancellor also awarded Kasey a judgment in the sum of $14,000 in attorney’s fees. Tash appealed.
Much of the COA’s opinion in Solangi v. Croney, handed down March 12, 2013, addresses the chancellor’s findings on the Albright factors, which the COA did not disturb. It is the court’s handling of the attorney’s fee issue to which we turn out attention. Judge Fair’s opinion states:
¶28. The chancellor awarded Kacey approximately $14,000 in attorney’s fees and costs. The award was based on Mississippi Code Annotated section 93-9-45 (Rev. 2004), which provides that the defendant in successful paternity actions shall pay costs and attorney’s fees. There are two problems with this award. The first is that the trial from which the award largely derives was for custody rather than paternity, with paternity being admitted by the parties in their initial pleadings. The second problem is more fundamental: the statute states that costs and fees shall be assessed against the defendant. Given that Kacey was the defendant, section 93-9-45 does not authorize an award of costs and fees against Tash.
¶29. We recognize that the issue of attorney’s fees in domestic cases is largely entrusted to the sound discretion of the chancellor. McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982). Therefore we must also consider the possibility that the award can be justified under the McKee factors. However, that would require that Kacey be unable to pay her own fees. See Dunaway v. Dunaway, 749 So. 2d 1112, 1120 (¶20) (Miss. Ct. App. 1999). No such finding was made by the chancellor, nor would the record support it given that Kacey and Tash were of similar means, with Kacey earning approximately $72,000 per year.
¶30. We conclude that the award of fees and costs to Kacey is unsupported by the record and must be reversed and rendered.
Two points: (1) if you rely solely on the paternity (parentage) statute for authority to award an attorney’s fee, you’d better be representing the plaintiff; and (2) if the case is not for contempt, you must prove inability to pay. and although Judge Fair does not mention it here, he has said recently in another opinion, that in every case you should put on proof of the Mckee factors; otherwise there is nothing in the record to show how the chancellor arrived at a decision that the dollar amount awarded was reasonable.
And another point: I would have offered proof of how much time was devoted to the custody action and how much was devoted to the paternity action. That way, if the judge finds only part allowable, she has a record on which to base a partial award.
If you will click on that category search button up there on the right side of the page and again click on “Attorney’s Fees,” you will find a slew of posts on proving attorney’s fees and protecting the award on appeal.
THE CONSERVATOR AND THE STATUTE OF LIMITATIONS
March 20, 2013 § Leave a comment
Angela and Brian filed a joint complaint for divorce on the sole ground of irreconcilable differences. While the 60-day waiting period was running, Angela was involved in a car wreck, suffering a broken neck and brain damage. Because she was no longer able to handle her business, a conservator was appointed and authorized to proceed with the divorce action.
On January 10, 2000, the trial court entered the final judgment of divorce. It included a provision that Brian reimburse Angela for $5,500 she had paid toward purchase of an automobile. In a subsequent proceeding brought by the conservator for enforcement of the judgment, Brian was ordered to pay the money, and the court awarded a judgment with interest, entered January 9, 2001.
In January, 2011, nearly ten years after the 2001 judgment, Angela’s conservator sought and obtained a writ of garnishment. After back-and-forth series of rulings, the trial court cancelled the writ because the judgment had expired due to the statute of limitations in MCA 15-1-47. The court rejected the conservator’s claim that Angela’s incapacity had tolled the statute of limitations as provided in MCA 15-1-59 because the “conservator is fully authorized to employ attorneys and bring actions on the [ward’s] behalf,” citing USF&G v. Conservatorship of Melson, 809 So.2d 647, 654 (Miss. 2002).
Angela’s conservator appealed.
In the case of Conservatorship of Lewis v. Smith, rendered March 5, 2012, the opinion has some key observations about the duties of a conservator when it comes to enforcing and protecting the rights of the ward:
¶8. Lewis contends that the chancellor erred in finding that section 15-1-59 does not toll the statute of limitations in regard to the judgment’s expiration under section 15-1-47. Under section 15-1-47, a judgment lien expires after seven years from the entry of the judgment.
¶9. In her August 26, 2011 order, the chancellor found that section 15-1-59 was “inapplicable to the present matter as it concerns persons with disabilities and minor children; when a conservator was appointed to protect the legal rights of the mentally incapacitated Angela Ann Lewis, thus invoking the provisions of Miss[issippi] Code Ann[otated] [s]ection 15-1-53.” Mississippi Code Annotated section 15-1-53 (Rev. 2012) states:
When the legal title to property or a right in action is in an executor, administrator, guardian, or other trustee, the time during which any statute of limitations runs against such trustee shall be computed against the person beneficially interested in such property or right in action, although such person may be under disability and within the saving of any statute of limitations; and may be availed of in any suit or actions by such person.
It is important to note that “the duties, responsibilities and powers of a guardian or conservator are the same.” Harvey v. Meador, 459 So. 2d 288, 292 (Miss. 1984). See also Miss. Code Ann. § 93-13-259 (Rev. 2004).
¶10. From the language of the order, the chancellor found that the right vested in the conservator and not in Lewis. Lewis contends that this contention is contrary to Weir v. Monahan, 67 Miss. 434, 7 So. 291 (1890). The Mississippi Supreme Court in Weir found that section 15-1-53 only applies “where the legal title to property or the right of action, at law or in equity[,] is in the guardian, and not the infants.” Weir, 67 Miss. at 455, 7 So. at 296. The court noted that “[w]hen the legal title to the property is vested in a trustee who can sue for it, and fails to do so within the time prescribed by law[,] . . . his right of action is barred . . . .” Id.
¶11. Under Mississippi Code Annotated section 93-13-38(1) (Rev. 2004), “All the provisions of the law on the subject of executors and administrators[] relating to settlement or disposition of property limitations . . . shall, as far as applicable and not otherwise provided, be observed and enforced in all guardianships.” Also, Mississippi Code Annotated section 93-13-38(2) (Rev. 2004) states: “The guardian is empowered to collect and sue for and recover all debts due his said ward . . . .”
¶12. From the language of section 93-13-38, the conservator had a fiduciary duty to pursue the $5,500 owed to Lewis. Therefore, the right of action was in the conservator and not Lewis. The conservator was appointed prior to the entry of the judgment of the divorce. The conservator brought the motion to hold Smith in contempt for failure to pay. It was the conservator’s fiduciary duty to file a writ of garnishment when Smith failed to pay. Under the plain language of section 15-1-53, if the right is in the guardian, in this case the conservator, the statute of limitations runs against the guardian and not the ward.
¶13. The right in action is in the conservator, therefore making the savings clause of 15-1-59 inapplicable, because “[t]he purpose of the savings statute is to protect the legal rights of those who are unable to assert their own rights due to disability.” Rockwell v. Preferred Risk Mut. Ins. Co., 710 So. 2d 388, 391 (¶11) (Miss. 1998). Lewis has a court-appointed conservator who is able to assert rights on her behalf. Therefore, Lewis does not require, nor is subject to, the protections provided by the saving clause.
If you are representing a conservator — or a guardian, executor or administrator, for that matter — make sure that your client is doing what is necessary to protect the legal interests of the ward or beneficiary, and is not allowing statutes of limitation to run.
the burden of responsibility of a fiduciary is a heavy one, as I have emphasized here before. This case points up yet another way in which your fiduciary may make a “perilous mistake” in handling the ward’s business. It’s your job to steer your client in the right path, and to help avoid the common mistakes that fiduciaries commit.
A MINORITY CONUNDRUM
March 19, 2013 § 2 Comments
I posted here about a case pending in my court in which a lawyer had filed a motion to void two agreed judgments for custody that had been executed by a 19-year-old mother. The basis for his motion was that the mother lacked the legal capacity to execute the judgments, and that they were not binding on her in any way.
The lawyers have settled the case, and the now-22-year-old mother has signed an agreed order that has the effect of supplanting the previous agreed judgments. So the concern about her legal capacity is moot in that case.
Still, the state of the law has me concerned. I did not find any authority for an unmarried minor to enter into an agreed judgment in a case of this sort. Neither did my staff attorney or even other judges who took the time to answer my query on our listserv. I found no authority, either, for subsequent ratification or approval by the court, although other states have addressed the ratification issue.
The reason for my concern is that a married minor is considered emancipated for the purpose of dealing with divorce, custody and support, but an unmarried minor is in a legal limbo vis a vis his or her offspring. Is there any legal or policy reason, given Mississippi’s high rate of unmarried parenthood, why we do not go ahead and recognize that young, unmarried parents, at least in the 18-21 age group, should not also be considered emancipated for the purpose of dealing with child custody and other parentage issues? Young people in that age group are emancipated by law to deal with their choses in action, so why do we not emancipate them by statute to deal with their parentage issues?
I wish that the legislature would look at this issue in light of the reality many of see every day in our state: children are having children. We have to have effective ways to deal with that.
MUCH ADO ABOUT SOMETHING
March 18, 2013 § 2 Comments
Forbes v. St. Martin, et al., decided March 5, 2013, by the COA, is a tour de force on contingent fee contracts and their enforceability. If you do any contingent-fee work, this is a must-read for you. Actually, it’s a good opinion to read and examine as a case study in ethics.
The 41-page majority opinion was penned by Judge Griffis. The rest of the court went this way: “ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND THE IN RESULT WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY ROBERTS, J. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J. JAMES, J., NOT PARTICIPATING.”
James Forbes had suffered catastrophic injuries in a gas-station explosion in Biloxi. Through a series of events he came to be represented in his personal injury claim by St. Martin, a Louisiana lawyer. Rather than qualifying to proceed pro hac vice, St. Martin instead associated a Mississippi lawyer and kept a rather low profile in the case, advising Forbes and his wife in the background and letting Mississippi counsel, with whom he corresponded regularly, take the lead in the record of the litigation.
The PI case was settled eventually for $13.6 million, and St. Martin’s fees, which were to be divided with Mississippi counsel, were $4.6 million.
Forbes filed suit against St. Martin and the Mississippi lawyer, and their respective firms, seeking to void the contingent-fee contract. The complaint asserted claims for breach of fiduciary duty, professional negligence, fraud and misrepresentation, conversion, rescission, imposition of a constructive trust, quantum merit, attorney’s fees, and actual and punitive damages. The Mississippi lawyer and his firm were dismissed, and St. Martin’s malpractice carrier was added as a defendant.
Both Forbes and St. Martin filed motions for summary judgment, and the chancellor ruled in favor of St. Martin.
The COA reversed and remanded. The ruling is too involved to go into detail here, but the court ruled that Forbes had presented enough evidence that there did exist a genuine issue of material fact so that summary judgment should not have been granted. Some of the findings of the COA:
- St. Martin made over $100,000 in “cash advances” to the Forbes, which they spent on a Bahamian vacation, a Caribbean cruise, a car, a cell phone, and “other personal expenses,” in violation of Rule 1.8(e) of the Rules of Professional Coduct;
- Unauthorized practice of law by St. Martin in Mississippi;
- The first contingent-fee contract was made while Forbes was under influence of narcotics;
- The second contract may have been the product of misleading or even fraudulent advice;
- Portions of the contract pertaining to ability to settle without counsel and ability to terminate counsel were in violation of Mississippi’s professional conduct rules.
So St. Martin returns to trial in chancery unless he can convince the MSSC to take the case on cert. That could happen if the MSSC wants to clarify the law in this area. Or, the high court could let the case finish its run through the trial court and then entertain it later. With millions at stake, it’s inconceivable that a later appeal would not result no matter what the ultimate trial outcome.
An interesting aspect of this case is that it is in essence a malpractice claim based on breach of fiduciary duties, which is not the usual and customary avenue that plaintiffs pursue in these cases.
The question at the heart of this appeal is whether an out-of-state lawyer may enter into an agreement with a Mississippi lawyer for joint representation of Mississippi litigants in a way that the out-of-state lawyer may avoid coming within the restrictions of the Mississippi rules of professional conduct and the scrutiny of our courts. The answer of the COA is “no.”
A subsidiary question is raised in Judge Maxwell’s partially concurring opinion, which challenges the majority’s definition of the practice of law. Judge Maxwell would not define it as expansively as did the majority. In my opinion, if the supreme court decides this phase of the case merits a look, this will be the battleground issue.
The Better Chancery Practice Blog 