June 28, 2013 § 8 Comments
You can try your hand at this Ultimate To Kill a Mockingbird Quiz.
FYI, I lucked out and scored 15/20, which, once you get a look at the questions, you might agree is a fairly handsome score.
I’ve already disclosed here that TKM is one of my all-time favorite book/movie combinations. It had much to do with my gravitation toward the legal profession.
Just for laughs, post your quiz score as a comment. I’ll bet the scores will be all over the ball park.
June 27, 2013 § Leave a comment
Reprise replays some blog posts of note from the past that may be of some use to you today …
June 27, 2011 § 3 Comments
MRCP 4 publication claimed its latest victim on June 14, 2011, in the COA case of Turner v. Deutsche Bank. In that case, the bank filed a judicial foreclosure and published process to Angela Turner. The original complaint recited Angela’s address, and the bank duly sent its process server there, only to discover that she had moved, whereabouts unknown. At that point, without amending its pleadings or filing an affidavit of diligent inquiry, Deutsche published process and a chancellor signed a default judgment finding, among other things, that the court had jurisdiction.
Angela awoke to what had happened and filed an MRCP 60 motion to set aside the judgment, and the original chancellor recused herself. Her successor overruled Angela’s motion in part because the court had already ruled that it had jurisdiction.
The court of appeals reversed and remanded. Here are some pertinent excerpts from the decision:
- “Deutsche Bank attempted to serve Turner by publication under Rule 4(c)(4), which provides for situations where the defendant cannot be found within the state. Publication of the summons must be made once a week for three consecutive weeks in the public newspaper of the county if one exists, as in our case. M.R.C.P. 4(c)(4)(B). But service by this method is only permitted “[i]f the defendant . . . be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry.” M.R.C.P. 4(c)(4)(A).”
- “¶10. The affidavit or sworn complaint must also state the defendant’s post-office address, if known, or swear that it could not be determined after a diligent inquiry. Id. If the postoffice address is listed, the sworn petition or affidavit must further provide the defendant’s street address or that it could not be determined after a diligent inquiry. M.R.C.P. 4(c)(4)(B). And if the plaintiff provides a post-office address, the clerk must mail the defendant (by firstclass mail, postage pre-paid) a copy of the summons and complaint to his post-office address, and note having done so on the general docket. M.R.C.P. 4(c)(4)(C). “
- “¶12. The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (¶16) (Miss. Ct. App. 2002) (internal citation omitted). Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So. 2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759 So. 2d at 1257 (¶33). [Emphasis added]
- “¶13. In Kolikas, we found a chancellor erred in failing to set aside a divorce decree, where the plaintiff attempted service by publication without strictly complying with the requirements of Rule 4(c)(4). Kolikas, 821 So. 2d at 879 (¶32). We observed that a defendant is “under no obligation to notice what is going on in a cause in court against him, unless the court has gotten jurisdiction of him in some manner recognized by law.” Id. at 878 (¶17).” [Emphasis added]
- In the petition or affidavit, the plaintiff must certify to the court, among other things, that the defendant is a nonresident or cannot be found in Mississippi.
- This conclusion is supported by the supreme court’s decision in Caldwell v. Caldwell, 533 So. 2d at 415. There, the supreme court noted that Rule 4(c)(4)(A) was substantially the same as the statute in place before the adoption of the Mississippi Rules of Civil Procedure. Id. The Caldwell court found instructive and quoted favorably a pre-rules treatise’s comment that “[a]n affidavit to support process by publication must strictly comply with the statute and if it omit[s] averment of diligent inquiry it is insufficient.” Id. at 416 (quoting Griffith, Mississippi Chancery Practice , Bobbs-Merrill Company, Inc. 225-27 (1925)). And “where notice by publication is resorted to . . . as a basis for the jurisdiction of the court, in lieu of personal summons[,] all the requirements of the statute as to such notice must be strictly complied with[.]” Id. at 415 (emphasis added). Rule 4(c)(4)(A) is equally clear that the plaintiff must attest that he has performed a diligent inquiry before performing service by publication. It is no less true today that a sworn averment of diligent inquiry must be made to effectuate proper service by publication. “[Emphasis added]
- “Rule 60(b) provides that the court may relieve a party from a final judgment if one of the stated conditions is met. One such condition exists where “the judgment is void.” M.R.C.P. 60(b)(4). Our supreme court has held that “[a] court must have . . . proper service of process . . . in order to enter a default judgment against a party. Otherwise, the default judgment is void.” McCain v. Dauzat, 791 So. 2d 839, 842 (¶7) (Miss. 2001) (internal citation omitted). Although “[t]he grant or denial of a 60(b) motion is generally within the discretion of the trial court, . . . [i]f the judgment is void, the trial court has no discretion.”
So here’s what you need to take away from this case:
First, if you’re going to obtain process by publication, you are going to have to comply with every technical requirement of MRCP 4(c)(4). The rule is to be strictly construed.
Second, if you have not been able to discover the whereabouts of the other party for service of process, you must file your affidavit of diligent inquiry before you publish. Filing it later will not work.
Third, if you do not comply strictly with the rule, your judgment will be void and subject to being set aside. In other words, you client will have paid you for accomplishing nothing, and maybe even for putting him in a worse position. That usually makes a client peeved enough to sue somebody.
This is yet another in a long list of decisions that would have had an entirely different outcome if counsel had simply taken a few minutes to read the rule and do what it says.
June 26, 2013 § 2 Comments
What do you do when one party hides assets she claims are separate, and refuses to divulge their whereabouts? You divide them anyway. At least that is what happened in Wilson v. Wilson, decided June 11, 2013, by the COA.
Penny and Gregory Wilson had the kind of financial arrangement that one sees from time to time in a divorce case. Penny made most of the income, apparently, and the parties maintained completely separate banking and finances. Gregory paid Penny a sum that they agreed was one-half of the household expenses, and some extra money when he worked odd jobs or when Penny wanted to go on vacation. One might say that Gregory was renting his marriage.
Penny was quite the financial wizard. She had managed to accumulate more than $200,000 in a credit union account, but she withdrew the money before trial and, according to the COA opinion, she ” … declined to reveal where she had placed the funds from that account” (¶ 4). She also managed to squirrel away some cash in several CD’s, but she cashed those in also, and when asked where the cash was, she ” … refused to reveal its location to the chancery court” (¶ 6).
Now, let’s stop right there.
What exactly is any self-respecting chancellor to do when confronted with a party who blatantly and wantonly refuses to comply with the express dictates of UCCR 8.05?
Rule 8.05(a) requires these disclosures:
A detailed written statement of actual income and expenses and assets and liabilities, such statement to be on the forms attached hereto as Exhibit “A”, copies of the preceding year’s Federal and State Income Tax returns, in full form as filed, or copies of W-2s if the return has not yet been filed; and, a general statement of the providing party describing employment history and earnings from the inception of the marriage or from the date of divorce, whichever is applicable …
There is no exception for separate property, or what one claims to be separate, or any other financial information. The rule specifically requires disclosure of actual income and expenses, as well as assets and liabilities, without exception.
The rule also states that:
The failure to observe this rule, without just cause, shall constitute contempt of Court for which the Court shall impose appropriate sanctions and penalties.
What the chancellor chose to do here was to divide the assets between Penny and Gregory, over Penny’s protestation that Gregory had not contributed to their accumulation, and that they were separate. In affirming the chancellor’s ruling, the COA pointed out that the burden was on Penny to prove the non-marital character of the assets (¶ 14), which she failed to do.
I guess that the chancellor decided that Penny had, in fact, disclosed the assets as required in UCCR 8.05, to the extent that she subjected them to adjudication, and her attempt to conceal them would not shield them from execution. Still, I find it troubling that a party could take the stand and expressly refuse to be candid and forthright about her assets, for a couple of reasons:
- There already exists a “fudge factor” in most financial statements. It’s not uncommon for parties to overestimate their expenses, overlook overtime and bonuses, and minimize self-employment income. When a party takes the stand and professes to be hiding assets, that kicks it up to an entirely different level.
- When one hides assets, no one knows for sure exactly how much money or value we are dealing with. Penny disclosed that there was $217,000 in the credit union account, but if she divulged the institution and account number, discovery might have found the real balance to be more like $300,000. And there is nothing in the COA opinion to show that Penny ever told the balance that had been in the CD’s.
I can’t say that I would have overlooked Penny’s intransigence.
I also don’t understand how Gregory’s lawyer did not raise cane before trial over the secretion of more than $200,000 in cash and CD’s. Gregory had a substantial stake in establishing their true value. The chancellor awarded him 40% of the credit union money. There is a big difference between 40% of 200,000 and 40% of $300,000.
June 25, 2013 § 1 Comment
The COA decision in Ivy v. Ivy, decided December 11, 2012, is a tour de force analysis of the hearsay rule and the parentage presumption. It’s far beyond the scope of this humble blog to break the 30-page majority and 10-page dissenting opinions down in detail, but the case bears mentioning for a few points:
- If you intend to offer a document into evidence that pertains to a material fact and is circumstantially trustworthy but not within any of the specific hearsay exceptions, it may not be admitted unless you first comply with MRE 803(24), which requires you to give the other side notice of it and an opportunity to “prepare to meet it.”
- Even self-authenticated documents under MRE 902 require prior notice to opposing counsel before they may be admitted at trial.
- The majority opinion’s analysis of the confusing welter of statutes for acknowledgment of paternity may be helpful to you, particularly in a wrongful-death setting as was the case here.
In Ivy, the battle was to determine who were the heirs at law and wrongful-death beneficiaries. There was a lot at stake, because the decedent had been killed in a car-train collision in Kemper County, which had the potential to produce a lucrative verdict or settlement.
The chancellor admitted into evidence an affidavit and DNA test that supported the conclusion that the decedent’s mother and siblings were the only heirs and wrongful-death beneficiaries. The COA ruled, after detailed analysis, that the chancellor should not have admitted the affidavit and DNA report into evidence. The case was remanded for “further proceedings consistent with this opinion.” To me, this means that the parties are headed for a do-over, with the COA majority opinion as a road map to a proper conclusion.
June 24, 2013 § Leave a comment
You may recall Eddie and Fannie Cotton’s first trip to the COA. In Cotton v. Cotton, 44 So.2d 371 (Miss. App. 2010), the court affirmed the chancellor’s equitable distribution in a case where the judge found the marriage void as bigamous. The case is of interest not only for that point, but also because the chancellor did not apply — or even mention — the Ferguson factors in her division. It’s a case you should go back and read when you have time.
Part of that affirmed 2010 division was an award of 40% of Eddie’s retirement from employment with Solae LLC during the void marriage. It seems that Eddie omitted the retirement account on his 8.05 financial statement, mentioning it only in his testimony, so the judge did the best she could do and simply awarded the percentage based on his employment with the company.
The problem with that award, as anyone who has dealt with the backwash of a divorce can tell you, is that no plan administrator will honor a QDRO that does not specifically and accurately identify the plan. So, a judgment that says something like “40% of any retirement plan that Eddie participated in while employed with Solae LLC,” is going to be met with a firm “uh-uh” by the plan administrator, which is exactly what happened here. What to do?
Fannie’s lawyers scurried back to court and asked the judge to “interpret” her prior judgment to provide that the retirement account was with the Bakers and Confectioners Union (B&CU), which was the actual plan in which Eddie participated during his employment with Solae LLC.
The chancellor granted the motion, concluding that the prior judgment had intended to award Fannie 40% of whatever retirement fund Eddie had participated in while employed with Solae LLC, and since Eddie himself had failed to provide the specific information, the court could and should clarify its prior ruling to specify that it pertained to the B&CU account, which was, in fact, the retirement account he had accumulated during his Solae employment.
Eddie appealed, taking the position that the chancellor impermissibly changed and broadened the scope of the original judgment.
In Cotton v. Cotton, handed down December 11, 2012, the COA affirmed, concluding that the trial court’s order ” … is neither an improper reconsideration nor an alteration of the prior judgment … ” and was not an abuse of discretion.
I call this decision to your attention for several points:
- This case highlights a way you can solve that QDRO dilemma that so many practitioners face when trying to put the divorce judgment in effect. It’s not that uncommon to get that letter from the plan admin that denies your client any relief.
- It seems that a subpoena duces tecum instanter might just have produced the information that was needed. I believe that I would have authorized it from the bench.
- I wonder why the accurate account information was not fleshed out in discovery? Remember this: if you come to trial with incomplete information, the chancellor will only have two ways to proceed: (1) stop everything and make you go back and do what you should have done in the first place; or (2) proceed and do the best she can with the faulty record before her. A caveat: before you put the burden on the judge to do your work for you, go back and read the MSSC decision in Collins v. Collins. It might persuade you to go a different route.
The real story here is not so much that chancellors can go back and elucidate their judgments to make them do what they were intended to do, but also that lawyers need to be diligent to foil the opposing party’s efforts to conceal and evade disclosure. If you leave it solely up to the judge, you might be disappointed in the outcome.
June 20, 2013 § 2 Comments
Robert Lyles and Christal Carpenter had a child together whom they named Emily Lyles. They entered into an agreed order under which Christal had custody of Emily. Robert was to have some specified visitation and telephone contact with the child. They also agreed to the following:
“[S]chool and extracurricular activities of the minor child shall be communicated to the other parent when the receiving parent first receives notice of the event and any associate[d] preparation dates, including date, time and place so as to allow both parties to attend when possible.”
Robert sued Christal for contempt claiming that she violated the agreed order by: (1) not allowing him alternating weekend visitation; (2) not notifying him of Emily’s extracurricular activities; and (3) not allowing him his telephone contact with the child.
In her defense to point (2), Christal averred that she had notfied Robert because Emily had her school backpack with her when she visited, in which were notes from the school about the extracurricular activities. She took the position that she was not in contempt because Robert had notice, if only he would take the trouble to look through Emily’s backpack.
The chancellor found Christal in contempt:
[T]he reason [the contenpt] is willful is because you assume that he should go through the backpack of your daughter … and find that document out, find that information out by himself. That [is not] what the Order says. It says as soon as you find out about that, you need to notify him. You [cannot] assume he got it from somewhere.
Christal appealed, and the COA, in Carpenter v. Lyles, decided May 28, 2013, affirmed.
I write to say that I, too, would have found Christal in contempt. As the chancellor said here, there is no question that Christal’s conduct violated not only the letter, but also the spirit and intent of the provision. It was her duty to communicate immediately and directly with Emily’s father, which she failed to do. I would have found an additional failure here, however.
My firm opinion is that parents may not discharge their responsibilities by shirking them off on the child. Christal was wrong, I would say, by leaving it up to Emily to be her messenger. There are several points here to consider:
- When parent A tasks the child to communicate information to parent B, parent A is putting the child squarely in the middle of what is quite often a conflict-ridden situation.
- What punishment should the child receive for garbling the message or confusing the reply?
- When the child is the messenger, parents are in a position to weigh the child down with adult, parental concerns that should be none of the child’s business or source of worry.
- A child used as a messenger is often used as a bearer of critical and demeaning communications between adults.
- Using the child as a messenger teaches the child that she is more important to the parents as a conduit of communiqués between combatants than she is as a beloved child.
- Using the child as a messenger enlists the child as an ally to one side or the other, usually to the more embittered, negative side that has more invested in the twisted process.
No parent should be allowed to discharge his or her parental duties by proxy through a child. It’s damaging to the child, and definitely not in her best interest.
I would encourage you to counsel with your clients to find ways to interact with opposing parents in an adult way that leaves children completely out of the conflict between them.
June 19, 2013 § Leave a comment
Shelly Kelly wanted to rent a house in Greenville. She approached Harrison Barry, who owned some rental property. Instead of a rental, they struck a deal for Shelly to buy some property for $5,000.
Barry asked Edward Lueckenbach, a Greenville attorney, to prepare the deed, but he was not asked to do a title opinion. The attorney went to the Washington County Courthouse, where he got the legal description for “Lots 51 and 52” in Shelton Subdivision, and he prepared a warranty deed.
Kelly bought her property and moved in at 330 Lake Street.
Barry renovated the neighboring property at 332 Lake Street, converting it from a single-family dwelling into a boarding house. He paid for air-conditioning, painting, and plumbing work. He installed a new water heater, furnace, closet, door locks, and doors, including paying for all the necessary materials. Barry allowed Kelly to screen the tenants, based on a complaint she made about noise, and Kelly collected the rent, which she turned over to Barry.
When Kelly received a tax bill for the 332 property, she called Barry to inquire, and he went to the attorney’s office, who advised him that the Lots 51 and 52 on the deed were for two different dwelling houses, one at 330, and one at 332. The attorney contacted Kelly, who refused to sign a corrective quitclaim deed. Barry filed suit to have the deed reformed to reflect the actual intent of the parties, and the chancellor ruled in Barry’s favor. Kelly appealed.
In Kelly v. Barry, decided May 21, 2013, the COA affirmed. Judge Roberts’ opinion sets out the basis for the ruling:
¶12. “A deed may be reformed where it is shown to [have] result[ed] from the mutual mistake of the parties in contracting for it.” Olive [v. McNeal], 47 So. 3d at 739 (¶12) (citing Brown v. Chapman, 809 So. 2d 772, 774 (¶9) (Miss. Ct. App. 2002)). As stated in Brown:
The law permits reformation of instruments to reflect the true intention of the parties when . . . the erroneous part of the contract is shown to have occurred by a mutual mistake, i.e., the party seeking relief is able to establish to the court’s satisfaction that both parties intended something other than what is reflected in the instrument in question[.]
Brown, 809 So. 2d at 774 (¶9). “The party seeking reformation of a deed on a mistake theory bears the burden of proof beyond a reasonable doubt.” Olive, 47 So. 3d at 739-40 (¶13) (citing McCoy v. McCoy, 611 So. 2d 957, 961 (Miss. 1992)).
¶13. Kelly notes that in Olive, this Court affirmed a chancellor’s decision that a litigant had failed to demonstrate mutual mistake because: (1) the document at issue in Olive was titled as a warranty deed; (2) the grantor was literate; (3) the grantor had several opportunities to review the warranty deed; (4) the grantor had some experience in real-estate transactions; and (4) the grantor had an opportunity to discuss the warranty deed with his attorney. Olive, 47 So. 3d at 740 (¶17). Kelly argues that the circumstances in this case are similar to the circumstances in Olive. We disagree.
¶14. Without question, the document at issue in this case was styled as a warranty deed. However, the property description merely indicated that Kelly was acquiring “Lots 51 & 52.” The property description does not indicate that Barry was selling Kelly 330 Lake Street and 332 Lake Street. In preparing the warranty deed, Lueckenbach could have mistakenly believed that “Lots 51 & 52” both applied to a single street address. Barry testified that he did not read the property description. Even if he had, no portion of the property description would have placed him on notice that he was mistakenly transferring title of two separate street addresses.
¶15. Furthermore, Barry’s behavior after the transaction indicated that he believed he never transferred title to 332 Lake Street. He paid for substantial repairs to 332 Lake Street and converted it to a boarding house. And he continued to pay the utility bills, taxes, and insurance premiums that related to the property.
And Kelly collected the rent for Barry and turned it over to him.
Who among us has not had a similar experience? I know I had a scarily similar experience once in Neshoba County where I would have faced litigation at my expense to correct a misdeeded parcel, but for the intervention of a young attorney with a sense of honor and equity, who prevailed upon his client to agree to fix the screw-up that had been the mutual error of two attorneys who put haste ahead of accuracy in drafting the judgment and deeds necessary to settle an estate.
Cases like this one are at the very core of what chancery courts are for.
June 18, 2013 § 2 Comments
Sometimes in the euphoria of settlement, when the bright sunlight of concord and goodwill seems to dispel the gray clouds of discord and conflict, in our optimistic pursuit of a written agreement, we lose sight of the details, where devilment always lurks, and out of that inattention things can come dizzyingly unravelled, and then totally unhinged in a most discombobulating way.
That’s more or less what happened at the trial level in the case of Powell v. Gregory, decided by the COA on May 14, 2013.
Siblings Julia Powell, Mary Margaret Gregory, and Bennie Evans believed that they owned a “forty” that had been their parents’ property, and which they came to own via heirship. The “forty” actually consisted of 37.98 acres, or so they thought.
Julia had acquired fee simple title to 2.02 acres from her parents, located in the NW corner of the “forty,” where a home she occupied was located.
The three could not agree on how to divide the property, so the sisters sued Bennie, asking for partition in kind of the surface acreage only.
After suit was filed, the siblings learned that what they thought was a “short forty” of some 38 acres was actually a “long forty” of 47.64 acres, nearly ten acres more than they had anticipated.
[Author’s note: Notice how what everybody believes to be true keeps turning out not to be so?]
After some negotiation, the parties presented the chancellor with an agreed judgment that included the words, “This is a final judgment” (Note: for the uninitiated, that language is required by local rule in that district in any judgment finally adjudicating the ultimate issue). The judgment had attached a county ownership plat showing the general designation of division, with Julia and Mary Margaret to receive 5.94 acres each, and Bennie to receive the remaining 35.64 acres. The parties agreed also to division of taxes and survey expenses. Excepted from the agreement would be Julia’s separate two-acre tract.
The chancellor signed the agreed judgment. No one appealed.
When the surveyor went out, he discovered that Julia’s house was actually 20 feet west of the western border of her “excepted property,” amidst the “heir property,” and not located on her excepted parcel. Julia refused honor the agreement. A year after the original agreed judgment was entered, Mary Margaret filed an action for contempt, and Julia in response filed for relief under MRCP 60(b)(6).
The chancellor ruled that the original agreed judgment was contractual and enforceable. He ordered that the description to Julia’s 2.02 acres be amended by deed to be where she said it was, and directed that the remaining acreage be divided among the three by acreage as originally agreed. He denied Mary Margaret’s request to hold Julia in contempt. Julia filed a battery of motions under R59(a), 59(e) and 60, all of which were overruled. She appealed.
So, did the COA’s decision finally untangle the knot? Well, in a word, no.
Judge Fair’s opinion indicates that the court would have liked to, but for one dispositively complicating factor:
¶20. Based on the record before us, the chancellor would have been within his discretion in interpreting the intent of the parties in the agreed final judgment and fashioning a remedy to carry out that intent. However, we must reverse the second final judgment because of the issue of necessary parties. On November 4, 2010, Belissa, Julia’s daughter, recorded a warranty deed from Julia to herself dated November 3, with a description almost (because of what Julia claimed was a scrivener’s error creating a description that does not “close”) exactly matching that of the two acres described in her mother’s deed. So far as the record reveals, the court was not informed of the existence of Belissa’s deed until it was submitted into evidence at the hearing two months later.
So with a couple more runaway cars added to the trainwreck, back the parties go, now to bring Belissa aboard for Round Three of their unhappy saga that began more than five years ago with that hapless partition complaint. Unless something new is injected, my guess is that the outcome at ground level will be pretty much the same this next go-round as it has been up to now.
Clients always seem to be in such sure command of their facts, even when they have no legitimate basis therefor. When you take what they say at face value, especially in a matter as detail-and-fact dependent as a property case, you get what you pay for, so to speak.
June 17, 2013 § 8 Comments
Welcome to the blog’s new look and new name.
The content will continue as it has been, but in what I hope is a brighter, more readable format.
And the new name more accurately reflects what the blog is all about: improving Mississippi chancery court practice.
The URL is unchanged, so you will not have to adjust your bookmarks.