April 30, 2013 § 5 Comments

Chancellor Ed Roberts of Oxford suffered stroke symptoms while on the bench last week. He at first insisted on finishing his docket, but finally relented and agreed to be taken to the ER at Baptist Hospital.

It was at the hospital that he learned that he has inoperable lung cancer and brain cancer. He is headed to MD Anderson Hospital in Houston.

I know he and his wife Sheila would appreciate your prayers. Judge Roberts’ brother, Larry, is a judge on the Court of Appeals. Both are natives of Meridian.

April 29, 2013 § Leave a comment

State Holiday.

Courthouse closed.



April 26, 2013 § Leave a comment







April 25, 2013 § Leave a comment

GAL’s have a difficult job. Both sides in a contested child-custody case try to pull them into their respective camps, while the GAL is trying hard to maintain impartiality. The parties try to show only their good side and hide the bad, while the GAL has to penetrate the fog of misinformation to detect the truth. The GAL spends hours (often many of them uncompensated) developing the information that the court will need to make a proper decision. And then, when it comes time for trial, one side, or even both sides, will castigate and vilify the GAL and her report, questioning her conclusions as unsupported, or one-sided, or an outright lie. On appeal the GAL is portrayed as biased, prejudiced, arbitrary, capricious and lacking good judgment, in league with the devil (i.e., the judge) who ruled against the disappointed party.

That’s pretty much what happened in Lindsey v. Willard, decided  by the COA April 9, 2013. Jason, stung by the GAL’s unfavorable report as to his case to retain custody of his son, Tyler, and the chancellor’s reliance on it, appealed. Judge Roberts’ opinion affirming states:

¶18. Jason has a litany of complaints regarding the way the guardian ad litem conducted her investigation. According to Jason, the guardian ad litem was derelict in her duties, and she “abandoned her obligation” to conduct a proper investigation. Jason claims the guardian ad litem improperly obtained information from third parties, rather than going to more appropriate sources. For example, Jason complains that the guardian ad litem asked Jason’s father, Jimmy, whether Jason paid Mandy’s bills while Jason’s own bills went unpaid, but the guardian ad litem never asked Jason whether that was true. Additionally, Jason laments that the guardian ad litem accepted Jimmy and Tania’s word regarding the paternity of Mandy’s baby, but the guardian ad litem never asked Mandy whether her baby was fathered by someone other than Jason. Jason raises several other similar allegations.

¶19. The guardian ad litem was appointed in an investigatory capacity. She was not appointed to represent Tyler. Thus, the guardian ad litem was “obligated to investigate the allegations before the court, process the information found, report all material information to the court, and (if requested) make a recommendation.” S.G. v. D.C., 13 So. 3d 269, 282 (¶57) (Miss. 2009). Prior to making a recommendation, the guardian ad litem must “provid[e] the court with all material information [that] weighs on the issue to be decided by the court, including information which does not support the recommendation.” Id.

¶20. The chancellor contacted the guardian ad litem on June 14, 2011. The guardian ad litem began her investigation soon afterwards. She interviewed fourteen people and “evaluated all documents filed in this matter and all [of the] correspondence [that was] given to her.” On July 19, 2011, the guardian ad litem filed her report. Based on the totality of the circumstances, the guardian ad litem recommended that the chancellor find that there had been a material change in circumstances adverse to Tyler’s best interests. The guardian ad litem then recommended that Tania have physical custody of Tyler during the school year, and that Jason have physical custody of Tyler during the summer.

¶21. Jason’s attorney vigorously cross-examined the guardian ad litem during the July 2011 hearing. At that time, the guardian ad litem had seventeen years’ experience as a guardian ad litem for the Itawamba County Youth Court. She had also worked for the Itawamba County Department of Human Services. The guardian ad litem explained that she asked Jason’s father, Jimmy, several questions without verifying Jimmy’s responses with Jason because she did not want to further harm Jimmy’s relationship with Jason. The chancellor heard the guardian ad litem’s explanations regarding the manner in which she conducted her investigation. Jason and Mandy also testified during the July 2011 hearing, as did Tyler. Consequently, the chancellor heard what Jason and Mandy would have said in response to the questions Jason’s attorney thought the guardian ad litem should have asked. Finally, the chancellor did not “rubber stamp” the guardian ad litem’s report. Although the chancellor reached the same conclusions as the guardian ad litem, the chancellor did so based on her own analysis. We find no merit to Jason’s claim that the guardian ad litem’s investigation somehow resulted in reversible error. It follows that we find no merit to this issue.

What I like about this decision is that it upholds what was apparently a good effort by an experienced GAL who knew what to devote her time to for the most productive results.

GAL investigations and reports are not required to be perfect. They are required to be thorough, impartial, and for the best interest of the child. It’s refreshing to see the appellate courts recognizing the difficult role that GAL’s play in these difficult decisions.


April 24, 2013 § Leave a comment

The COA case of Maurer v. Maurer, handed down April 9, 2013, calls our attention yet again to the phenomenon of the self-represented parties and the imaginative ways that they can inflict damage on their interests using the legal system for that purpose.

Raven and Michael were divorced in 2006. Commencing in 2007, they engaged in a long-running battle over custody and visitation in which allegations of sexual abuse were made, a GAL was appointed, a termination of parental rights action was filed, custody orders were entered bouncing the children from one parent to the other, and, finally, a hearing was held in 2011, on the termination of parental rights, pleadings for modification of both visitation and child support, and multiple contempt allegations.

The chancellor ruled against Raven’s termination request and found Michael in contempt for failure to pay child support. But the judge did not adjudicate the amount of the arrearage or the amount of reduction in child support Michael should have; instead, she ordered the parties to submit proposed findings of fact and conclusions of law on those issues.

Raven filed a pro se appeal. Michael is listed as pro se in the appeal, also.

Just for fun, let’s have a little quiz on how the COA ruled. Multiple choice, pick the likely outcome:

(A)  The appeal is dismissed because this was an MRCP 81 action at trial, and MRCP 81 is hopelessly outdated and anachronistic and too complicated for pro se litigants to comprehend;

(2)  The appeal is dismissed based on MRCP 44.1, determination of foreign law; or

(x)  The appeal is dismissed because the chancellor’s “final judgment” adjudicated fewer than all of the contested issues, and there was no certification per MRCP 54(b).

If you guessed (x), you’re right. As the court’s opinion, by Judge Maxwell, stated, although the chancellor adjudicated “the vast majority of disputed issues,” there were matters left unaddressed, so there was no final, appealable judgment, and the COA has no jurisdiction unless there had been a certification under MRCP 54(b), or Raven had gotten leave to file an interlocutory appeal, which (surprise, surprise) she did not do.

The only remarkable thing to me about this case is how people, heedless of the legal harm and expense they can inflict on themselves, persist in pursuing complex legal matters pro se. We’ve seen many cases over the past several years where the R54(b) snare tripped even skilled lawyers; how is a lay person to know how to negotiate these shoal waters? As I have observed many times, I have never seen a pro se litigant walk out of the court room in better shape than when he or she walked in. Raven went to a lot of expense in this appeal for nothing.


April 23, 2013 § 2 Comments

The COA case of Estate of James D. Hodges, Deceased: Hodges v. Hodges, decided March 12, 2013, stands for the important proposition that, merely because you have an appraisal report, it does not mean that the judge can consider it.

The case involved a property dispute in an estate between Daniel, son of the decedent, and his step-mother, Susan. At a hearing in 2010, the then-sitting chancellor ordered Daniel to obtain appraisals of property in controversy, and that, if Susan was unhappy with the appraisal she could obtain her own. Daniel hired an appraiser, Livingston, to do the work. Susan, however, never got her own appraisals.

At trial in 2011, before another chancellor who replaced the original chancellor, Susan objected to admission of the appraisals on the ground that Daniel did not call the appraiser to sponsor and be cross examined about them. The judge ruled that they were admissible because the first chancellor had ordered them. No doubt he also pointed out that Susan could have gotten her own appraisals if she were not satisfied with Daniel’s, per the first judge’s explicit order. Susan appealed.

Judge Lee, for the court, stated:

¶8. This Court has stated, “Prior to its admission into evidence, a document or photograph must be authenticated.” Crutcher v. State, 68 So. 3d 724, 730 (¶12) (Miss. Ct. App. 2011). Mississippi Rule of Evidence 901(a) states that “authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” One illustration in Rule 901(b)(1) is for testimony of a witness with knowledge that “a matter is what it is claimed to be.”

¶9. For Livingston to be called as a sponsoring witness under Rule 901, he would have to meet the requirements for an expert witness under Mississippi Rule of Evidence 702 because his testimony would be based on the “specialized knowledge” required for an appraiser. Under Rule 702, a witness with “specialized knowledge” may testify to his opinion if “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”

¶10. When determining the admissibility of an expert’s testimony, the trial judge, applying a “modified Daubert standard[,] . . . must first determine whether expert testimony is relevant and, second, whether the proffered testimony is reliable.” Adcock v. Miss. Transp. Comm’n, 981 So. 2d 942, 946-947 (¶14) (Miss. 2008) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). Relevancy is determined by Mississippi Rule of Evidence 401 to be evidence that tends “to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Clearly, the appraiser’s evaluations of the properties are relevant to the determination of the property division, therefore meeting the first prong of the modified Daubert standard.

¶11. In order to determine reliability under the second prong of the Daubert standard, the party requesting the expert testimony to be admitted must offer proof “that the expert’s opinion is based upon scientific methods and procedures, not unsupported speculation.” Adcock, 981 So. 2d at 947 (¶16). The trial judge may look to factors including:

“whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether there is a high known or potential rate of error; whether there are standards controlling the technique’s operation; and whether the theory or technique enjoys general acceptance” within the expert’s particular field. Id. (quoting Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 37 (¶13) (Miss. 2003)).

¶12. The trial judge abused its discretion when it allowed the appraisals to be admitted into evidence without the appraiser as a foundational witness under Rule 901. Furthermore, Daniel offered no proof of Livingston’s methods or procedures for appraising either property. None of the applicable reliability factors were considered prior to admitting the appraisals. Additionally, Susan never had the ability to cross-examine Livingston on his methods or procedures.

¶13. An error constitutes reversible error “when it affects the final result of the case and works adversely to a substantial right of the party assigning it.” Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So. 2d 216, 221 (Miss. 1969). The trial judge relied on the appraisals to determine the division of the properties, therefore affecting the final result of the case. For this reason, we reverse the decision of the Simpson County Chancery Court.

A few points:

  • When Daniel got the appraisals he could have propounded requests for admission to Susan to get her to admit to the authenticity and accuracy, etc. of the appraisals so that he did not have to call a sponsor. If Susan denied the request, causing Daniel to incur expense to call the witness who did establish the authenticity and accuracy, then he could petition the court to order Susan to reimburse his expenses.
  • I would bet that the first chancellor’s order that Susan could obtain her own appraisals if she did not agree led everyone, second judge included, to believe that the burden was on Susan to do something if she did not agree. When she did not, it appeared that she had waived any objection. Only problem is, the first judge’s ruling did not relieve anyone from complying with the MRE.
  • Judge Lee’s analysis is a great template for how you need to evaluate proof you will need to establish some points at trial.
  • Think these things through. Instead of just stumbling into the court room on the date set for hearing, think ahead. Call opposing counsel and ask whether she is going to require you to call the expert. If she tells you that won’t be needed, and you get to trial and the other side reverses field, ask for a continuance to get the witness you need. In this case, I think counsel for Susan could easily have gotten a continuance for that purpose on the basis that the first judge’s ruling confused everyone.


April 22, 2013 § 3 Comments

Anyone who has ever canoed or kayaked a swift-flowing stream knows that you can get caught in a whirlpool of cross-currents that is mighty difficult to get free of, and, instead of paddling along one’s intended course, one paddles frantically to break loose.

That’s the effect of what happened in McBride v. McBride, a COA case decided April 2, 2013. In that case, Robert and Vanessa were involved in a divorce. The court rendered a final judgment, and Vanessa filed a Rule 59 motion for rehearing (which she styled as a motion for reconsideration, btw). Some four months later Robert filed his “Motion for rehearing on Vanessa McBride’s Motion for Reconsideration, or, in the Alternative, for New Trial.” So, what we have here is a motion to “reconsider” the reconsideration; a post-trial whirlpool, if you will. Vanessa appealed.

In its opinion, the COA says at ¶13, “In her brief, Vanessa claims that Robert’s motion was not allowed ‘as the law allows one motion for reconsideration/new trial after a judgment is entered.’ Yet, Vanessa does not cite any authority for this legal principle.” And at ¶16: “As much as we may like to impose a one-motion-for-reconsideration rule, there is simply no authority to impose such a limitation …”

Now, it’s unclear to me exactly what Vanessa was attempting to argue with her one-motion claim, but I do believe there is a one-motion-for-Rule 59- relief rule expounded by our courts. In Edwards v. Roberts, 771 So.2d 378, (Miss.App. 2000), the COA addressed the issue in the context of a circuit court ruling on a motion for a new trial, which is the circuit court counterpart to the chancery court motion for rehearing, both of which are brought under MRCP 59. Here’s what the court said:

¶ 21. We start with the settled law that after a motion for new trial has been denied, no right exists to file for reconsideration. We find that reasoning equally applicable to motions for JNOV. “When the procedure authorizing a motion for a new trial has been followed and, pursuant to proper notice, the parties have made their representations to the court, and the court has duly considered and made his decision upon that motion, that completes both the duty and the prerogative of the court.” Griffin v. State, 565 So.2d 545, 550 (Miss.1990) (emphasis added). In Griffin, the lower court sustained two criminal defendants’ motion for new trial as to two of the counts, and overruled as to one count. Id. at 545. The defendants fled and were captured several years later. Id. At that time the State moved to set aside the order granting a new trial. Id. The judge sustained the State’s motions because he believed that he had made an error at law in granting a new trial. Id. On appeal, the Supreme Court found that the judge had no authority to revoke his earlier order for a new trial. Id.

¶ 22. The Griffin court relied on other states that had addressed the same question. Among other authorities, the court quoted the California Supreme Court’s holding that, “It has long been the rule that ‘A final order granting or denying [a motion for a new trial], regularly made, exhausts the court’s jurisdiction, and cannot be set aside or modified by the trial court except to correct clerical error or to give relief from inadvertence….’ ” Griffin, 565 So.2d at 549 (citing Wenzoski v. Central Banking Sys., 43 Cal.3d 539, 237 Cal.Rptr. 167, 736 P.2d 753, 754 (1987)). Once a motion for new trial has been ruled upon:

[I]f the party ruled against were permitted to go beyond the rules, make a motion for reconsideration, and persuade the judge to reverse himself, the question arises, why should not the other party who is now ruled against be permitted to make a motion for re-re-consideration, asking the court to again reverse himself? … This reflection brings one to realize what an unsatisfactory situation would exist if a judge could carry in his mind indefinitely a state of uncertainty as to what the final resolution of the matter should be.

Griffin, 565 So.2d at 549–50 (citing Drury v. Lunceford, 18 Utah 2d 74, 415 P.2d 662, 663–64 (1966)).

[9] ¶ 23. Though Griffin is a criminal case, the Supreme Court’s principal authorities for holding it improper to move for reconsideration of a motion for new trial were civil cases under versions of Rule 59. The Supreme Court’s conclusion that ruling on one motion for new trial exhausts the power of the court to entertain another such motion, certainly has an impact here. Until a judgment is final, a court has the authority to amend it. Griffin v. Tall Timbers Development, Inc., 681 So.2d 546, 552 (Miss.1996). Conversely, once it is final the authority is lost. The court’s initiating it own reconsideration removes the finality of the judgment after an earlier motion was denied. That creates the same difficulties that were discussed in Griffin v. State. Just as a second motion under Rule 59(a) cannot be brought by a party after an earlier Rule 59(a) motion has been denied, neither can the trial court itself entertain its own reconsideration under Rule 59(d) or Rule 50(b).

¶ 24. This is not to say that the finality of the judgment created by the denial of the first motion for new trial is absolutely unchangeable. Griffin v. State itself says that one last tool remains—correcting clerical error, relieving inadvertence, responding to newly discovered evidence, or otherwise considering the grounds for a Rule 60 motion. Griffin, 565 So.2d at 549. Since the state and federal versions of Rule 60 are similar, we can seek a better understanding of what can be achieved under Rule 60 by examining an explanation of federal caselaw. The Mississippi Supreme Court has said “the federal construction of the counterpart rule will be ‘persuasive of what our construction of our similarly worded rule ought to be.’ ” Bruce v. Bruce, 587 So.2d 898, 903 (Miss.1991) (citation omitted). The following section of an eminent treatise on the federal rules first explains that a denial of a new trial motion cannot be reconsidered, and then suggests what remains:

Term time as both a grant and limitation upon the district court’s power over its final judgments has been eliminated.[ footnote omitted] In lieu thereof and in the interest of judgment finality a short time period, that is not subject to enlargement, has been substituted, within which a party may move for a new trial or to alter or amend the judgment. When the court has decided such a motion in a way that the finality of the judgment has been restored, then relief, if any, should come by appeal or by a motion under Rule 60(b), which does not affect the finality of the judgment or suspend its operation. It would be destructive of the general aim of the Rules to permit successive attacks upon final judgments on motions to reconsider orders that deny new trial, or that deny or grant an alteration or amendment of the judgment.

The logic is clear that if there were no limit to motions for rehearing, there would never be an appeal from a final judgment as long as the successive motions are pending. It would be like getting caught in that whirlpool when you’re trying to paddle to finality.

McBride was reversed and remanded on other grounds. Judge Griffis’s opinion addresses the vernacular use of the term “reconsideration” at ¶15. It’s a subject we’ve discussed here previously.

April 19, 2013 § Leave a comment

Judges’ Meeting.

Next post April 22, 2013.

April 18, 2013 § Leave a comment

Judges’ Meeting.

Next post April 22, 2013.

April 17, 2013 § Leave a comment

Judges’ Meeting.

Next post April 22, 2013.


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