SCENE IN MISSISSIPPI

May 3, 2013 § 3 Comments

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NOTICE FOR A DAY CERTAIN

May 2, 2013 § Leave a comment

Although the COA decision in In the Matter of Transfer of Structured Settlement Payment Rights by Benny Ray Saucier, handed down March 26, 2013, nominally dealt with the notice provisions of the Mississippi Structured Settlement Protection Act (MSSPA), MCA 11-57-1 through 15, it punctuates an important point about notice and process that applies in other cases as well.

The statutes in this case specify certain notices that must be given to “all interested parties”:

  • Section 11-57-11(2) states that, “Not less than twenty (20) days prior to the scheduled hearing on any application for approval of a transfer of structured settlement payment rights under Section 11-57-7, the transferee shall file with the court . . . and serve on all interested parties a notice of the proposed transfer and the application for its authorization … “
  • And subsection (f) states that, “Notification of the time and place of the hearing and notification of the manner in which and the time by which written responses to the application must be filed which shall be not less than fifteen (15) days after service of the transferee’s notice in order to be considered by the court or responsible administrative authority.”

The statute, however, does not spell out what form of process or notice should accomplish what the statute mandates.

Here’s what the COA said in the majority opinion by Judge Griffis:

¶68. The MSSPA does not specify the appropriate notice that is required section 11-57-11(2). Because the MSSPA requires court approval, “[a] civil action is commenced by filing a complaint with the court.” M.R.C.P. 3(a). To obtain personal jurisdiction over an interested party, service of process is required consistent with either Rule 4 or Rule 81 of the Mississippi Rules of Civil Procedure. Although the MSSPA is not included among the actions subject to Rule 81(a), reading section 11-5-11(2), we interpret notice to require a return for a date certain similar to the procedure authorized in Rule 81(d)(5). At a minimum, once the original notice is provided to an interested party, notice of subsequent proceedings must comply with Mississippi Rule of Civil Procedure 5.

So, in these cases where a statute provides notice for a given period, and the matter is not among those enumerated in MRCP 81(d)(1) and (2), your safest course is to issue process to a day certain under MRCP 81(d)(5). In my experience this is exactly what practitioners and judges have been doing since the earliest days of the MRCP, but it is nice to see the appellate court’s stamp of approval on the practice, since it makes complete sense.

KEY CHANCERY CASES JANUARY 2012 – MARCH 2013

May 1, 2013 § Leave a comment

Many of these have been addressed in prior posts. This puts them all together in one place.

Lee v. Lee, 78 So.3d 326 (Miss. 2012)

Even in uncontested cases, it is essential that your judgment address all of the applicable factors, such as Albright, Ferguson, Martin v. Coop, etc.

Lone Star Industries, et al. v. McGraw, MSSC February 2, 2012 and McKnight v. Jenkins, MSSC February 14, 2013

If you file an amended pleading outside the time allowed and do not get leave of the court to file an amended pleading, the amended pleading is a nullity and should be stricken by the court.

Bolivar v. Waltman, COA April 3, 2012

All parties who would be necessary parties in a child custody case are required to be joined in a suit for grandparent visitation. This requirement of MCA 93-16-5 is jurisdictional, and may be raised by the trial court on its own, or by the appellate court on its own.

Cates v. Swain, COA April 17, 2012

Equitable remedies are not available to unmarried parties who acquire assets titled in only one party’s name through the contributions of both. The MSSC has granted cert in this case.

McMullin v. McMullin, COA May 29, 2012

If the chancellor’s opinion resolves fewer than all of the issues in the case, you must have the judge certify under MRCP 54(b) that there is no just reason to delay an appeal, and stating the reasons why. Otherwise, if you appeal, your appeal will be dismissed.

Easley v. Easley, COA June 5, 2012

When the parties enter into a consent for divorce and one of the contested issues who will be granted custody, the court may award the parties joint custody if the court deems it in the child’s best interest, regardless whether joint custody was listed as an option.

LePori v. Welch, COA June 26, 2012

There is no cause of action for termination of parental rights unless it is in contemplation of an adoption.

Rogers v. Rogers, COA July 24, 2012 and Dogan v. Dogan, COA October 9, 2012

If you are going to claim that the other party has perpetrated a fraud on the court as in Trim v. Trim, you have to plead fraud specially and prove all of its elements by clear and convincing evidence.

Marter v. Marter, COA August 7, 2012

Three acts that do not convert separate property to marital property for equitable distribution purposes: labor for plantation and maintenance; joint titling; and payment of property taxes.

Collins v. Collins, COA August 21, 2012

8.05 financial statements are the “gold standard” of proof as to assets and their values in a divorce, and the chancellor may rely on them solely in the absence of other evidence.

Strickland v. Strickland, COA August 28, 2012

Once the record has been transmitted to the MSSC in an appeal, the trial court has no jurisdiction whatsoever to reconsider, set aside, enforce or modify the order appealed from.

Brown v. Tate, 95 So.3d 745 (Miss. App. 2012)

The importance of entering an order of continuance on the return day in Rule 81 cases.

Ballard Realty, et al. v. Ohazurike, et al., MSSC September 6, 2012

A circuit court case in which the MSSC said that it was error for the trial judge to allow an expert to testify when the party offering him had not responded to the expert witness interrogatory seeking the substance of his testimony.

O’Briant v. O’Briant, COA October 16, 2012

Yet another case in which the appellate court points out that the Albright factors are not a scorecard in which winner takes all, but are a matrix for the court to use to assess the best interest of the child.

Jones v. Jones, COA November 13, 2012

When the chancellor has denied a divorce, she is under no duty to adjudicate custody pled as one of the prayers for relief in the divorce.

Estate of Holmes, COA November 29, 2012

The two subscribing witnesses to a will must be prepared to testify: (1) that they knew they were witnessing a will; (2) that the testator requested that they witness a will; and (3) that they did satisfy themselves that the testator was of sound and disposing mind when she executed the will.

Ford Motor Co. v. Ferrell, et al., MSSC December 6, 2012

Where the settlement that the chancellor is to approve is between private parties, the court should honor a party’s request to seal the record.

Sullivan and Stubbs v. Maddox, COA January 22, 2013

Attorney and his client jointly assessed with $43,000 in attorney’s fees and costs as a sanction where the proof showed that the lawyer had not investigated the merits of the claim before suit was filed, did not dismiss the case when discovery showed it was meritless, and then knowingly made false accusations against the judge on the record.

Gillespie v. Gillespie, COA January 29, 2013

Proof of grounds for divorce requires corroborating evidence, which is not necessarily strong enough in itself to prove the ground, but does tend to support the proof of the ground and a finding that it is true more likely than not.

Hollis v. Baker, COA February 12, 2013

If you fashion a hybrid alimony arrangement in a property settlement agreement or agreed judgment, and the court later finds it ambiguous, the ambiguity shall be resolved in favor of it being construed as periodic alimony, with all of the attendant attributes of periodic alimony.

Fore v. Fore, COA February 19, 2013

Both parties charged each other with post-separation adultery, and the chancellor denied both of them a divorce. Affirmed.

Caplinger v. Julian, COA February 12, 2013

Every judgment for child support must bear interest, set at a stated rate to be determined by the court pursuant to MCA 75-17-7.

Hall v. Lewis, COA February 12, 2013

Unmarried couple who lived together entered into mutual contract to provide for each other in their respective wills. Contract held not to be abrogated by the discontinuance of the relationship. Contracts for will are enforceable in Mississippi.

Forbes v. St. Martin, COA March 5, 2013

A must-read opinion on ethical aspects of contingent-fee contracts and the duties of out-of-state lawyers who participate in Mississippi litigation without applying to the court to appear pro hac vice.

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