March 15, 2013 § 5 Comments

Mississippi map 1833Back again for your consternation and obsession: Wicked Mississippi Trivia.

The original Wicked Mississippi Trivia can be found here.

Answers to this quiz in a week or so.

1.  McKinley Morganfield and Chester Burnett are two world-renowned Mississippians. What were they famous for, and by what names did we know them?

2.  What was the name of US President James K. Polk’s plantation in what is now Grenada County?

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?

4.  What now-nationwide organization was first established in 1909 in Crystal Springs?

5.  The first franchised Holiday Inn was located in which Mississippi city?

6.  Where does the “Southern cross the ‘Dog?” and what does that phrase mean?

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?

8.  The adjoining towns of Pittsburgh and Tullahoma were consolidated on July 4, 1836, to form which Mississippi city?

9.  Jesse James robbed a bank in which Mississippi city?

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?

11.  Avalon, a defunct village in Carroll County, is the home town of which famous Mississipian?

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?

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.

14.  What was the original name of the site that became Jackson before it was known as LeFleur’s Bluff?

15.  Which Laurel native became an internationally acclaimed soprano with the New York Metropolitan Opera?

16.  Which of Mississippi’s yacht clubs has the distinction of being only the second to be established in the U.S.?

17.  Who is “The Sage of Tippo?”

18.  Ronald Reagan launched his 1980 campaign for President as the Republican party nominee at what Mississippi event?

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?

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?

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.

22.  What is the oldest newspaper published in Mississippi?

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?

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?

25.  Name the four official sites of the state capital through its history.

Bonus Question: What was the unusual object that fell from the sky in an 1887 hailstorm in Bovina?


March 14, 2013 § Leave a comment

As I have urged here many times, I encourage you to attend Professor Deborah Bell’s Family Law CLE each and every year. I push this particular seminar because it is by far the best, most complete and most insightful summary and analysis of the preceding year’s case devlopments in Mississippi domestic relations law. You will find yourself referring back to the materials from time to time, and I guarantee you will come away with more than a few nuggets that you will find useful in cases you try.

This year’s dates and locations:

  • April 25, Jackson, Mississippi Sports Hall of Fame
  • May 3, Oxford, Oxford Conference Center
  • May 10, Biloxi, Imperial Palace

You can register online by clicking here.

While you’re at it, you should invest in Prof. Bell’s BELL ON MISSISSIPPI FAMILY LAW, 2d ED., which is the definitive reference work for Mississippi family law practtioners. If you are going up in court against colleagues who use this book and you don’t, you will be at a distinct disadvantage.

Disclaimer: I have no interest, financial or otherwise in the seminar or the book. My only interest is in a better-informed and more skilled bar.


March 13, 2013 § 3 Comments

In Forbes v. St. Martin, et al., handed down March 5, 2013, from the COA, the appellants’ first issue on appeal was “Whether the chancellor erred in denying the post-judgment motion of the [appellant] pursuant to MRCP 59.” Judge Griffis, for the majority, said:

¶15. There is actually only one issue in this appeal — whether it was error to grant the summary judgment. A chancellor’s judgment is final and appealable, and there is no requirement that a post-judgment motion be filed to perfect an appeal from chancery court.

¶16. In chancery court, a Rule 59(a) motion may be filed: (i) “for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi,” or (ii) for a new trial so “the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.” A Rule 59(e) motion would allow the chancellor to “alter or amend the judgment.”

¶17. Forbes’s brief contends that the chancellor erred in the denial of the motion for reconsideration. “[A] motion to set aside or reconsider an order granting summary judgment will be treated as a motion under Rule 59(e).” Brooks v. Roberts, 882 So. 2d 229, 233 (¶15) (Miss. 2004) (citation omitted). “[T]he movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.” Id. (citation omitted). A chancellor’s decision to deny a Rule 59 motion is reviewed for abuse of discretion. Brooks, 882 So. 2d at 233 (¶15). Forbes has offered no argument that the chancellor abused his discretion in the denial of the motion for reconsideration. Accordingly, we find no error as to the second issue, and we only consider whether it was proper for the chancellor to grant a summary judgment as to all claims. [Emphasis added]

I’ve made the assertion here before that an MRCP 59 motion is not required as a prerequisite to an appeal in a chancery court proceeding where the case was tried to the judge. A case tried to the judge without a jury does not require such a motion. That is the opposite of the rule when a jury has rendered a verdict in circuit and county courts; in those cases a motion for a directed verdict or JNOV under MRCP 50 would be required as a prerequisite to appeal.

The language above is also a good survey of what must be shown to get relief under R59.


March 12, 2013 § Leave a comment

Some lawyers are confused about when and how a judgment precludes a return trip to court by operation of res judicata. The confusion is somewhat understandable, since in chancery court we often deal with return trips for modifications and contempts. It’s been discussed here before.

There are chancery cases, however, such as divorce judgments as to property and grounds, property disputes, suits for rescission and specific performance, actions to contest wills, and the like where res judicata can operate as a bar — or not.

The COA case of Rodgers v. Moore, et al., decided last November by the COA, is one of those cases. In 2004, the Moores filed suit to remove cloud on title against Mary Rodgers. In 2006, the suit was dismissed by the court without prejudice pursuant to MRCP 41(d) for failure to prosecute. In 2007, the Moores filed yet another suit, and Mary Rodgers, proceeding pro se, answered that the suit should be dismissed as res judicata due to the prior dismissal. There are some other procedural wrinkles in the case that do not directly pertain to my point here.

The chancellor ruled that the 2004-filed proceeding was not res judicata, and Mary appealed.

Judge Roberts, writing for the court that affirmed the chancellor’s ruling, gave us a handy exposition on the principles of res judicata and why they did not bar the 2007 suit:

¶10. Rodgers first asserts that the chancery court erred in finding that the doctrine of res judicata was not triggered in the current case. The doctrine of res judicata requires the presence of four identities before it is applicable, and the absence of any of the identities is “fatal to the defense of res judicata.” Hill v. Carroll Cnty., 17 So. 3d 1081, 1085 (¶10) (Miss. 2009) (citations omitted). The four identities are as follows: “(1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made.” Id. (citing Harrison v. Chandler-Sampson Insurance, Inc., 891 So. 2d 224, 232 (¶24) (Miss. 2005)). Additionally, a fifth requirement is that there must be a final judgment adjudicated on the merits. See Harrison, 891 So. 2d at 232 (¶22); Beene v. Ferguson Auto., Inc., 37 So. 3d 695, 698 (¶7) (Miss. Ct. App. 2010). If these five things are established, then res judicata bars any claims that were brought in the prior action or could have been brought in the prior action. Hill, 17 So. 3d at 1084-85 (¶¶9-10).

¶11. Rodgers submits that the four identities are present. She also claims that the chancery court’s dismissal of the case filed in 2004 without prejudice was a final judgment on the merits. According to Rodgers, the plaintiffs in the first suit failed to show ownership of the property, thereby failing to establish superior title. We agree with Rodgers’ contention that the first, second, and fourth identities are present; however, we do not find that the third and fifth identities are necessarily present. The first identity is met because the subject matter of both suits was to remove a cloud on the title of a specific piece of land. The second is the identity of a cause of action. This “is found where there is a commonality among the ‘underlying facts and circumstances upon which the present claim is asserted and relief sought.’” Studdard v. Pitts, 72 So. 3d 1160, 1162 (¶9) (Miss. Ct. App. 2011) (quoting Riley v. Moreland, 537 So. 2d 1348, 1354 (Miss. 1989)). The causes of action in both cases are the same. Fourth is the quality of the persons against whom the claim is made, which are also the same.

¶12. In dispute are the third identity and the fifth requirement. The third identity is whether the parties in both actions are the same or are in privity with the original parties. See Little v. V & G Welding Supply, Inc., 704 So. 2d 1336, 1339 (¶15) (Miss. 1997); Williams v. Vintage Petroleum, Inc., 825 So. 2d 685, 689 (¶17) (Miss. Ct. App. 2002). It is clear that the original parties to the suit are also parties in the second suit. However, the second suit contains several additional parties not in the original suit. What is unclear from the record is whether these additional parties were in privity with the original parties; nonetheless, the determination of this identity is not dispositive, as the fifth requirement is clearly not met.

¶13. The fifth requirement is that there has been a final adjudication on the merits in the original suit. We do not agree with Rodgers’s claim that the chancery court’s dismissal without prejudice of the 2004 case was an adjudication on the merits. In its October 11, 2010 opinion, the chancery court stated that the original case was dismissed “without ruling on any of the issues brought by either party[.]” In Williams, 825 So. 2d at 688 (¶12) (citing Stewart v. Guar. Bank & Trust Co. of Belzoni, 596 So. 2d 870, 872-73 (Miss. 1992)), this Court stated: “A voluntary dismissal taken without prejudice is not an adjudication on the merits and does not operate as res judicata in subsequent suits.” See also Ladnier v. City of Biloxi, 749 So. 2d 139, 156 (¶69) (Miss. Ct. App. 1999). The chancery court’s dismissal of the 2004 case without prejudice was not an adjudication on the merits. The dismissal was on the ground that the “pleadings did not establish the [p]laintiffs as the proper parties to the litigation.” No issue involving the ownership of the disputed property was addressed by the chancery court; therefore, the chancery court was correct in finding that res judicata did not bar the second suit.

An MRCP 41(d) dismissal, then, is not a dismissal on the merits, is without prejudice, and will not operate as res judicata, because it is not a final judgment disposing of all claims in the case. Neither is a voluntary dismissal or any dismissal without prejudice. Don’t overlook, though, that a statute of limitations may run in the time that the case lies dismissed.

Modifications and contempts are not barred by res judicata because (1) the court retains jurisdiction to consider modification of certain issues, and to enforce its judgments, and (2) they are not a relitigation of the prior action, and they are based on and limited to matters occurring post the final judgment.

This case does not add anything substantive to my previous post on the subject, other than some additional authority that you can cite as needed, but it does illustrate the character of judgment that is necessary to operate as a bar.


March 11, 2013 § 4 Comments

Those of you who receive updates to this blog by email got one from me last week with some Mississippi trivia questions. That was a mistake. It was meant to be published at the end of this week and I apparently hit the wrong button, prematurely publishing it. So it appeared on the web site only briefly before I took it down, but the email went out regardless.

Here’s the way WordPress works: I compose posts at my convenience, on days when trials have been settled, or between conferences with attorneys, or at other slack times, and save them as drafts, or save them with a setting to be published at a later time. For example, I am writing this on Friday, and it is set to be published Monday of next week.

Two lawyers have asked me whether I am up at 6:00, a.m., typing feverishly away in an effort to make a post to my blog. No, that’s not the case. The posts are written in advance and appear when I schedule them to do so.  Otherwise there is no possible way I could take care of my trial and other business schedule and this, too.

That’s the way it works here at Chancery12.


March 8, 2013 § Leave a comment

In a gesture to make up for the last miserable helping of puns I dished out to you, I donned a haz-mat suit and dug down to the stratum where the vein of these monstrosities is found, and mined this lode for you …

You still have to supply your own rimshots.

Here they are …


I stayed up all night to see where the sun went. Then it dawned on me.


I’m reading a book about anti-gravity. I can’t put it down.


All the toilets in New York’s police stations have been stolen. Police have nothing to go on.


I tried to catch some Fog. I mist.

When chemists die, they barium.


Jokes about German sausage are the wurst.


I know a guy who denies he’s addicted to brake fluid. He says he can stop any time.


How does Moses make his tea? Hebrews it.

This woman said she recognized me from the vegetarian club, but I’d never
met herbivore.


I wondered why the baseball was getting bigger. Then it hit me!


I did a theatrical performance about puns . It was a play on words.


They told me I had type A blood, but it was a Type-O.


A dyslexic man walks into a bra and ordered a martini.


Class trip to the Coca-Cola factory, to be followed by a pop quiz.

Energizer bunny arrested. Charged with battery.

I didn’t like my beard at first. Then it grew on me.


Did you hear about the cross eyed teacher who lost her job because she couldn’t control her pupils?


When you get a bladder infection, urine trouble.


What does a clock do when it’s hungry? It goes back four seconds.


Broken pencils are pointless.


What do you call a dinosaur with a extensive vocabulary? A thesaurus.


England has no kidney bank, but it does have a Liverpool.


I used to be a banker, but then I lost interest.


I dropped out of communism class because of lousy Marx.


I got a job at a bakery because I kneaded dough.


Haunted French pancakes give me the crepes.


Velcro – what a rip off!


Cartoonist found dead in home. Details are sketchy.


Venison for dinner? Oh deer!


I used to think I was indecisive, but now I’m not so sure.


Be kind to your dentist. He has fillings, too.



March 7, 2013 § Leave a comment

  • It is error, as a matter of law, for a chancellor not to award interest on a judgment for past due support. Caplinger v. Julian, decided February 12, 2013, by the COA, citing Ladner v. Logan, 857 So.2d 764, 772-73 (Miss. 2003).
  • MCA 75-17-7:

All judgments or decrees founded on any sale or contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered. All other judgments or decrees shall bear interest at a per annum rate set by the judge hearing the complaint from a date determined by such judge to be fair but in no event prior to the filing of the complaint.

  • Each unpaid child support payment begins to accrue interest from the date it is due, and the chancellor has no authority to abrogate or disallow interest as to each payment for equitable or other reasons. Dorr v. Dorr, 797 So.2d 1008, 1015 (Miss. App. 2001).
  • It was not error for the chancellor to set interest on unpaid child support at 8% per annum, even though prevailing interest rates were considerably lower when assessed. The payments were due for a span of years, and interest rates fluctuated during the time that the payments vested. Houck v. Ousterhout, 861 So.2d 1000, 1003 (Miss. 2003).
  • 8% interest found to be reasonable. Adams v. Adams, 591 So.2d 431, 436 (Miss. 1991); and Howard v. Howard, 913 So.2d 1030, 1036 (Miss. App. 2005).
  • A 3% interest rate was upheld. The COA found no authority to hold that particular rate to be an abuse of discretion or manifestly in error. Brawdy v. Howell, 841 So.2d 1175, 1180 (Miss. App. 2003).
  • In Beasnett v. Arlidge, 934 So.2d 345, 349 (Miss. App. 2006), the court upheld an award of 8% per annum assessed on past-due child support in a TPR case.
  • MCA 75-17-1 sets legal rates of interest and finance charges on contracts and accounts. As of today, the legal rate on “notes, accounts and contracts” is 8%. The parties may, however, contract for a greater rate within the limits set out in the statute.

Although interest rates of between 3% and 8% have been upheld, it would seem to me a logical argument that 8% is still a reasonable rate, even in these depressed-interest times, since that is the rate that the legislature has set and maintained in effect for “notes, accounts and contracts.”


March 6, 2013 § Leave a comment

Many lawyers believe that the six-month provision of the UCCJEA fixes jurisdiction in the home state of the child. That’s not always the case, though.

Take, for instance, the case of Clifton v. Shannon, decided by the COA June 26, 2012.

Thomas and Dawn Clifton were divorced in DeSoto County in 1999. Dawn was awarded physical custody of their three-year-old daughter, Ashley, and they were to share joint legal custody. Thomas had reasonable visitation.

In December, 2005, Dawn moved to Colorado and remarried. In 2006, they entered into an agreed judgment adjusting visitation to accommodate the move.

In 2010, Thomas filed a petition in the Chancery Court of DeSoto County seeking modification of custody an an adjudication of contempt.

Dawn objected to jurisdiction, pointing out that Ashley’s home had been in Colorado for the preceding four-and-one-half years, and that there were no significant connections to Mississippi that would justify exercise of jurisdiction.

The chancellor took jurisdiction and awarded Thomas custody, based primarily on Ashley’s preference, and Dawn appealed. She challenged both jurisdiction and the chancellor’s substantive ruling.

On the issue of jurisdiction, here’s what Judge Fair’s opinion stated:

¶7. “Whether a court had jurisdiction under the UCCJEA to hear a child-custody dispute is a question of law, which we review de novo.” Miller v. Mills, 64 So. 3d 1023, 1026 (¶11) (Miss. Ct. App. 2011) (citing Yeager v. Kittrell, 35 So. 3d 1221, 1223 (¶¶12, 14) (Miss. Ct. App. 2009)). However, the factual findings underpinning the jurisdiction question are reviewed under the familiar substantial evidence and abuse of discretion standard. See White v. White, 26 So. 3d 342, 346-48 (¶¶10, 14) (Miss. 2010).

¶8. In Yeager, this Court stated “[a] court issuing an initial determination has continuing jurisdiction over the parties; no other court may modify the decree.” Yeager, 35 So. 3d at 1224 (¶16) (citing Miss. Code Ann. § 93-27-201 (Supp. 2009)). However, even if only one party remains in the state, a second state may modify the order if the issuing court finds that neither the child, nor the child and one parent, have a significant connection with the state, and that substantial evidence is no longer available in the issuing state. Only the issuing state may make this determination. Id. (internal citation omitted).

¶9. There was sufficient evidence that Ashley still maintained a significant connection to Mississippi because her father and extended family reside here. In a recent opinion addressing a chancery court’s jurisdiction over a proceeding for modification of custody, the Mississippi Supreme Court held that since the father had continuously resided in Mississippi:

[I]t was within the chancellor’s discretion to determine that both the child and [the father] had a “significant connection with this state.” Therefore, the chancery court properly has retained continuous, exclusive jurisdiction over [the] matter . . . . White v. White, 26 So. 3d 342, 347-48 (¶14) (Miss. 2010).

¶10. The DeSoto County Chancery Court was the court of original jurisdiction. Nothing in the record suggests that the chancellor erred in retaining jurisdiction. In fact, the Colorado court, where Dawn filed another custody action, had declined jurisdiction on the emergency relief that was requested and did not assume jurisdiction.

¶11. Dawn further contends that Mississippi is an inconvenient forum, as “the overwhelming abundance of substantial evidence and witnesses” with regard to the child’s home life are located in Colorado. She cites Mississippi Code Annotated section 93-27-207, which states in pertinent part:

(1) A court of this state which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.

(2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:

(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(b) The length of time the child has resided outside this state;

(c) The distance between the court in this state and the court in the state that would assume jurisdiction;

(d) The relative financial circumstances of the parties;

(e) Any agreement of the parties as to which state should assume jurisdiction;

(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(h) The familiarity of the court of each state with the facts and issues in the pending litigation.

(Emphasis added.)

¶12. While Colorado may have been a more convenient forum for Dawn, the chancery court is endowed with the discretion to make that decision. Prior custody proceedings were conducted in Mississippi, and Ashley spent several weeks in Mississippi during the year visiting her father and family. We find that Mississippi was an appropriate forum and that the chancery court properly retained exclusive jurisdiction.

What you can draw from this aspect of the case is that the chancellor will have broad discretion in making a determination whether as the court of original jurisdiction it should take jurisdiction. You would be wise to make a record invoking as many of the factors set out in 93-27-207 as are applicable and favorable to your client’s side of the case. That discretion is not unfettered; there should be some basis in the record to support it. It seems to me that “The nature and location of the evidence required to resolve the pending litigation …” and “The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence …” would be the key factors on which to focus your efforts.

Another lesson: don’t stop your analysis with where the home state of the child is located. That’s only one of a number of factors.

Remember that only the issuing state may determine whether it should continue to exercise jurisdiction. And MCA 93-27-202(1) provides that the original state no longer has continuing, exclusive jurisdiction after both parents have moved from the original state.


March 5, 2013 § Leave a comment

“In God we trust; all others pay cash.”  —  Graffiti

A trust is aptly named. Its grantor literally trusts the trustee to carry out his or her wishes with respect to the money or property placed in the trustee’s care.

In the case of Smiley v. Yllander, handed down December 11, 2012, by the COA, the chancellor found at trial that Jeanette Smiley had created a trust when she deeded her home and 140 acres to her nephew, Gary, and his wife, Mary Ann. The deed by which she conveyed the property included this provision:

This conveyance is executed trusting that Gary Lamar Smiley will follow the dictates of my Last Will and Testament with regard to the disposition of the above described property. In the event, however, that said Gary Lamar Smiley should predecease me, then, in that event, his executor/administrator shall follow the dictates and dispose of said property according to my Last Will and Testament.

By her express language, then, Jeanette trusted Gary to deal with her estate as directed in her will.

Alas, as sometimes happens, things did not go as Jeanette had envisioned. Gary and Mary Ann clearcut timber on property specifically reserved in the will for other family members, and the other family members sued, not only for the wrongful timber removal, but also alleging that Mary Ann had misappropriated over $100,000 of Jeanette’s money.

The chancellor found that the deed created a trust and awarded the plaintiffs $292,000 for removal of the timber, and another $44,000 for misappropriation.

Gary and Mary ann appealed.

The COA reversed and remanded the trust issue because the chancellor was unclear about the standard of proof that she applied. Judge Maxwell’s opinion is a good primer on the law of creation of trusts and the burden of proof required for each. Here’s what he wrote:

¶11. Generally, trusts are classified under two broad categories: (1) express trusts and (2) implied trusts. Express trusts arise from a party’s manifestation of an intention to establish such an agreement and are created by a trust instrument. Miss. Code Ann. § 91-9-103(a) (Supp. 2012). If the trust holds real property as an asset, the trust agreement must be in writing and signed by the grantor. Miss. Code Ann. § 91-9-1 (Rev. 2004); Alvarez v. Coleman, 642 So. 2d 361, 366-67 (Miss. 1994).

¶12. While an express trust must be written, implied trusts differ in that they arise by implication of the law or are presumed from the circumstances. Mississippi recognizes two types of implied trusts: (1) resulting trusts and (2) constructive trusts. A resulting trust “is designed to give effect to the unwritten but actual intention of the parties at the time of the acquisition of title to the affected property.” In re Estate of Gates, 876 So. 2d 1059, 1064 (¶17) (Miss. Ct. App. 2004) (quoting Robert E. Williford, Trusts, 8 Encyclopedia of Mississippi Law § 73:2, at 422 (2001)). A constructive trust is a judicially imposed remedy used to prevent unjust enrichment when one party wrongfully retains title to property. McNeil v. Hester, 753 So. 2d 1057, 1064 (¶24) (Miss. 2000). The primary difference between the two is that “in a resulting trust, the acquisition . . . is mutually agreeable[,] and the inequity arises out of the trustee’s subsequent unwillingness to honor the terms of the parties’ original agreement”; whereas a constructive trust may be imposed when “acquisition of title is somehow wrongful as to the purported beneficiary[.]” Simmons v. Simmons, 724 So. 2d 1054, 1057 (¶7) (Miss. Ct. App. 1998).

¶13. Here, the chancellor found a trust existed but did not distinguish the particular type. Though both parties insist the chancellor imposed a constructive trust, or something akin to it, a plain reading of her order shows she likely found Jeanette had intended to create an express trust by executing the deed “trusting” Gary would follow the dictates of her will—which did in fact leave the ninety-acre tract to the plaintiffs. According to the chancellor, the deed “was subject to the terms of the will and did not serve to vest fee title in the Smiley Defendants.” That the chancellor likely believed an express trust, rather than implied trust, arose is further supported by her finding that Gary and Mary Ann had “knowingly and willfully violated the explicit terms of that trust.”

¶14. But regardless of the type of trust implicated, “to establish a trust, the evidence must be more than a mere preponderance. The proof must be clear and convincing.” Lee v. Yeates, 256 So. 2d 371, 372 (Miss. 1976) (emphasis added). And here, it is not at all obvious whether this standard was employed. We note that in the chancellor’s order indicates she found:

Plaintiffs have met their burden of proof by a preponderance of the evidence on all necessary elements and are entitled to recover for the wrongful removal of the timber from the acres devised to them under the terms of the will. Even though the property was conveyed to the Smiley Defendants, such conveyance was specifically subject to a trust for Plaintiffs’ benefit, and the Smiley Defendants knowingly and willfully violated the explicit terms of that trust. (Emphasis added).

While the chancellor may have indeed considered the trust issue separately under the clear-and-convincing-evidence standard, she did not specifically say so in her order. This omission, coupled with the chancellor’s reference to the preponderance standard when describing the burden of proof “on all necessary elements,” supports our decision to remand to ensure the chancellor considers the trust issue under the clear-and-convincing-evidence standard. See Estate of Langston v. Williams, 57 So. 3d 618, 622 (¶17) (Miss. 2011).

Aside from the nifty trust-law-in-a-nutshell aspect of this case, it illustrates what can happen when the trial judge applies the wrong standard of proof or is unclear whether she applied the right standard. You can avoid this kind of result by offering to do proposed findings of fact and conclusions of law that set out and cite authority for the appropriate standard. Or, if you aren’t that industrious, timely file an MRCP 59 motion asking the judge whether she really meant “clear and convincing” rather than preponderance, and cite a supporting case or two. It might just save you a retrial.


March 4, 2013 § Leave a comment

Judges can be nosy. When no one is asking the question that the judge wants to know the answer to, you might just hear the judge start asking her own questions. I’ve talked about it in a post here before.

In the COA case of Knights’ Piping, Inc. and Knight v. Knight, et al., decided December 11, 2012, the appellant took issue with the chancellor’s frequent and vigorous interrogation of witnesses. The COA, by Judge Irving, found nothing improper in how the judge approached it:

¶14. Benny asserts that the chancery court erred in its interrogation of witnesses during trial. Under Rule 614(b) of the Mississippi Rules of Evidence, “[t]he court may interrogate witnesses, whether called by itself or by a party.” However, “it is grounds for reversal if the trial judge abuses the authority to call or question a witness by abandoning his impartial position as a judge and assuming an adversarial role.” Powell v. Ayars, 792 So. 2d 240, 248 (¶29) (Miss. 2001) (citation omitted).

¶15. While the chancery court interjected numerous times during the trial, we do not find that the court abused its discretion or abandoned its impartial position. Generally, the court’s questions were intended to clear up confusing testimony or encourage testimony from recalcitrant witnesses, which our supreme court has recognized as appropriate circumstances under which a trial judge may question witnesses. See id. at 248-49 (¶30). Additionally, the court gave the attorneys the opportunity to ask further questions of witnesses, if necessary, based on the court’s questions. This issue is without merit.

Lawyers in this district will tell you that I frequently ask questions to clarify or to get the information I feel that I need to make a decision. I always give the attorneys an opportunity to ask questions based on what I asked. Judge Mason, on the other hand, seldom asks questions. It’s a matter of personal discretion and style. In my years of practice, I can say that I saw about every variation on this theme that one could imagine, from active participation in the trial to stony, sweat-inducing silence.

Chancellors will tend also tend to get involved when they become convinced that the witness is being untruthful, or evasive, or that there is some other kind of chicanery taking place. In Knight, the chancellor became so impatient with evasive and non-responsive answers that he began deeming certain answers as admitted. The appellant again took issue, and the COA again rejected his argument:

¶16. Benny argues that the chancery court erred in deeming his alleged non-responsive answers to certain questions as admitted. For example, during cross-examination, the following exchange occurred between Benny and Harold’s attorney:

Q: And, of course, you indicated yesterday that Harold missed 30 days [of work] and so that’s—that’s why you fired him?

A: He also told me—

[THE COURT]: The answer is—for the witness—the witness is being evasive—is that is why he fired him because Harold missed 30 days. That’s the answer. Ask your next question.

Q: When you changed the locks, you denied Harold access to his property, correct?

A: I did not.

Q: Did you give him a key?

A: Couldn’t locate him.

[THE COURT]: The answer is—


[THE COURT]: —he did not give him a key.

¶17. Based on our review of the record, the chancery court admonished several witnesses regarding non-responsive answers—not just Benny. Furthermore, Benny’s answers to the questions he complains about on appeal were evasive. Therefore, the chancery court did not err in presuming that the true answers would be unfavorable to Benny’s position and deeming his non-responsive answers as admissions. This issue is without merit.

Taking answers as admitted is an extreme measure, but it’s one that can be merited in a situation like the one in Knight, where the witnesses are not forthcoming.

As for the chancellor’s demeanor, it’s a simple fact that judges get exasperated, just like lawyers and parties do. It usually happens after a long, tedious stretch of trial where one frustration accumulates on another until the judge’s patience is exhausted, and he blows a gasket. Yes, it would be better to keep one’s cool, and calmly navigate through the perturbance, but judges are human, and they are focused on getting to the truth of what is the most equitable outcome in the case. Thwarted in that quest, they tend to get testy.

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