How Not to Propound Discovery Requests via Email
March 18, 2014 § 5 Comments
If you’re like me, this entry among the MSSC hand-downs last Thursday had you scratching your head:
EN BANC
2013-IA-01784-SCT
Amber Olsen Johnson v. Walter Thomas Johnson; Madison Chancery Court; LC Case #: 2012-0921; Ruling Date: 10/14/2013; Ruling Judge: Janace Goree; Disposition: The Petition for Interlocutory Appeal filed by Petitioner is granted. This matter is remanded to the Madison County Chancery Court for entry of an order denying Respondent’s Motion to Compel in cause no. 2012-0921. The notice of appeal having been deemed filed, the filing fee is due and payable to the Clerk of this Court. The Respondent is taxed with all costs of this appeal. To Grant and Render: Waller, C.J., Dickinson and Randolph, P.JJ., Lamar, Kitchens, Chandler, Pierce and King, JJ. To Grant: Coleman, J.; Randolph, P.J., for the Court. Order entered.
An interlocutory appeal is granted and the chancellor is ordered to enter a discovery order. What exactly is going on here?
After I read Jane’s and Anderson’s blog posts on the ruling, it was much clearer.
It seems that the trial court had granted a motion to compel based on a R34 request for production of documents (bank records) that was directed via email to an employee of opposing counsel, and not to opposing counsel herself. Petition was filed for an interlocutory appeal from the order. The MSSC accepted the appeal, dispensed with briefing, and ruled that an email request made by counsel for one party to an employee of counsel for the other party does not meet the notice requirements of MRCP 5 and 34.
Jane includes the transcript of the trial-court proceedings, in which counsel for the party seeking discovery argues that an email request, no matter how informal, complies with the requirements of R34, which only requires a writing. The MSSC did not directly address this particular point.
The two points to take away from this are:
- Sometimes we get accustomed to dealing with a particular paralegal or other staff in opposing counsel’s office. Notice to that staff member will not suffice as notice to the attorney under R5 or R34. Here, the missing component was either an automatic electronic acknowledgment of receipt from the attorney, or the attorney’s separate acknowledgment, either of which is required in R5. The acknowledgment of a staff member does not satisfy the express requirement of R5 that it be made by the attorney.
- If you find yourself scratching your head over some hand-down of the appellate courts, it might pay you to take an extra three minutes to look up the order behind it. If you don’t, you might miss something that could impact a future case of yours.
Thanks to both Jane and Anderson for posting on this, and to Beverly Kraft for calling it to my attention.
Grass Roots Rules of Court
March 17, 2014 § 9 Comments
Before you set off on a trek to a far-flung chancery court district, it would behoove you to discover how they do business there. As an example of what a lack of behooving can do for you, consider my own rueful experience:
Years ago I called a court administrator in a distant county and told her I wanted to set a motion for a hearing. She gave me a date, and I, in turn, gave her the CA number, the parties, my name, and that of opposing counsel. I filed my motion, sent out the notice of hearing and, on the day appointed, travelled 90 miles or so to court.
I noticed when court opened that opposing counsel was not there. The judge called the docket and my case was not there, either. I approached the bench after docket call and inquired about my motion hearing. The judge flipped through the file and pointed out that I had not obtained a fiat setting the case for that day. Ergo, no setting. A fiat to set the hearing was required in that district by local rule.
A fiat, as anyone who operated in the pre-MRCP legal world can tell you, is simply an order directing that process or notice of hearing be issued for a given day. It’s the court’s way of ensuring that the case is set for an appropriate day. And it’s that district’s way of complying with R81(d)(5), which says that the date for a hearing in a matter like that “… shall be set by special order, general order or rule of the court.”
Had I bothered to look for a local rule, I would have gotten that fiat before setting the hearing, and I would not have wasted a trip.
In this district, where we have no local rules, a lawyer simply calls the court administrator, finds a date assigned by the court for hearing of matters such as the one the lawyer desires to set, and notifies the court administrator of the identity of the matter being set, and the time required. The lawyer then notices it for hearing, either via R81 or R5, whichever applies.
In the first instance above, the hearing is set per local rule, and in the second, by R81.
So, how do you discover how to do it?
You can find a complete set of local court rules approved by the MSSC at MC Law’s Mississippi Legal Resources web site. While I’m on the subject, that site is a super resource where you can find instant access to all kinds of Mississippi legal resources that you use daily. And it works as a mobile app, too. You can also find the local chancery court rules on the MSSC’s Mississippi Judiciary site at this link.
Note that all local rules must be approved by the MSSC before taking effect. They must be consistent with the MRCP, and, in the event of a conflict, the MRCP prevails.
Of the now-existing twenty chancery districts, thirteen have their own local rules, and seven do not. The seven districts without local rules are:
- Third. (DeSoto, Tate, Panola, Yalobusha, Grenada and Montgomery). Chancellors Cobb, Lundy and Lynchard.
- Ninth. (Humphreys, Issaquena, Sharkey, Sunflower, Warren and Washington). Chancellors Barnes, Weathersby and Wilson.
- Twelfth. (Lauderdale and Clarke). Chancellors Mason and Primeaux.
- Thirteenth. Local rules repealed in 2006. (Covington, Jefferson Davis, Lawrence, Simpson and Smith). Chancellors Shoemake and Walker.
- Fifteenth. (Copiah and Lincoln). Chancellor Patten.
- Eighteenth. Local rules repealed in 2006; BUT SEE ERRATUM BELOW. (Benton, Calhoun, Lafayette, Marshall and Tippah). Chancellors Alderson and Whitwell.
- Twentieth. (Rankin). Chancellors Fairly and Grant.
ERRATUM: The 18th District Rules were renumbered and codified by order entered May 18, 2006, but not repealed. I apologize for the mistaken information.
In the districts without their own local rules, you can call the court administrator, who should be able to help you get done what you need to get done. If you encounter a judge who has no court administrator whom you can identify (I know of only one), you might try calling the clerk first, and, if that is unproductive, then call one of the court administrators of another judge in the district.
NOTE: Since grass is green, the title of this post qualifies as appropriate for St. Patrick’s Day.
And thanks to attorney Sean Akins of Ripley for pointing out my error about the 18th District.
Reprise: Make Sure Your Witnesses are Prepared
March 13, 2014 § Leave a comment
Reprise replays posts from the past that you may find useful today.
TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #9
May 3, 2012 § 3 Comments
This is the second in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.
TOP TEN TIP #9 …
Make sure your witnesses are prepared.
I am regularly astonished at how unprepared and consequently inept some witnesses are at trial. Some examples:
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The party who testifies to her 8.05 as if it were a runic stone tablet that fell to earth from the planet Uranus instead of as if it were a document she herself helped to originate.
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The lawyer who slams his head repeatedly against objections for leading because he can’t come up with any other way to clue his witness in to what he expects the testimony to be.
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The client who probably presented herself as a roaring lion in the intial interview, and is now a mewing pussycat, much to the obvious chagrin and buffaloment of her attorney.
These and many, many other unpleasant witness experiences can be avoided, or at least ameliorated, through the simple expedient of trial preparation in which the lawyer familiarizes the witnesses with what is headed down the tracks right at them. It’s what your client paid you for.
Prepare your witnesses for trial. Go through their testimony. Test their recollection.
Go over that 8.05 with your client. Remember that although it’s not the first one you’ve ever seen, it probably is the first one your client has. Clients have no concept how important and even crucial the financial form is to their case. Consequently, they are haphazard and careless in prepping them, omitting important items, overstating (often absurdly) some expenses, while drastically understating others. Challenge your client’s memory as to what was included in each category and how the figures were determined. Make her defend her figures. If she can not, suggest she reconsider and adjust as necessary to make it true. Is each and every asset listed, and are the values realistic? Ten tips for more effective financial statements are here. And five more are here.
Explain for your client what the trial factors are that will apply in your case, and what the important facts are that you need to get into the record. For instance, if you have a child custody modification case, explain material change, plus adverse effect, plus best interest, Albright factors, and how his or her testimony fits into the picture. Go over some expected questions and critique your client’s answers.
Weed out self-destructive language. It’s not ethical to tell a witness what to say, but it’s perfectly ethical to tell the witness how to say what they have to say. In other words, you can’t change the facts, but you can help the witness select a better, truthful way to state those facts.
Encourage your witness never to volunteer or guess. “I don’t know” is a better answer than “Well, you didn’t ask me, but I guess I was at fault, if you think I am.”
Train your witness to paint a word picture of what happened instead of just babbling a bunch of labels. “The windows were all busted out of the house, the wallpaper was ripped down, there was a puddle of blood on the floor as big as a sow pig, and there was a fire burning in the kitchen trash can making a scorched spot on the ceiling,” is a lot more effective than “The house was tore slam up.”
And while you’re at it, teach your witness some points of court room etiquette: don’t speak over the lawyers or judge; speak loudly and clearly; don’t chew gum or chewing tobacco in court; stand when directed by the bailiff. Every judge has his or her own preferences and quirks. Any lawyer who has spent even a short time in my court can tell you, for example, that I can’t abide witnesses and lawyers speaking over each other. That’s a quirk of mine that you should warn your witnesses about. Your judge has similar idiosyncracies. I practiced before a chancellor decades ago who could not stand to see women in short or low-cut dresses. I know it’s so un-twenty-first-century, but if you find yourself in a similar throwback situation, prudence would suggest that you warn your client in advance so that she could adjust her trial-day wardrobe accordingly.
Warn your client not to get argumentative or sarcastic with opposing counsel no matter how big a jerk he acts like he is.
Tell the witness how the proceedings will go and what to expect. Most people headed to court only have tv as a frame of reference for what to expect. Tell them how the case will proceed and who all the people will be in the court room.
Explain that it’s a lot less damaging to be hurt by the truth than to be caught in a lie.
If you take your client’s money and don’t prepare him or her for trial, you are taking money under false pretenses. And if you think you will slide it by an oblivious judge, think again. The unprepared witness is usually the second-most embarassingly conspicuous aspect of a trial, right after the unprepared lawyer.
Subjecting One’s Self to the Jurisdiction of the Court
March 12, 2014 § 2 Comments
The MSSC case of Pierce v. Pierce, handed down February 20, 2014, includes a couple of pretty important points of law that you should be aware of in your chancery practice.
Martin and Star Pierce were married in 2000, and lived in Harrison County, Mississippi. They separated, and Martin filed for divorce in the State of Washington in 2007. Since the Washington court had no personal jurisdiction over Star, it granted a divorce only.
Martin later filed an action in Harrison County seeking partition of the parties’ jointly-owned home and settlement of the parties’ financial obligations incurred during the marriage. Star counterclaimed for equitable distribution, alimony, and attorney’s fees.
The chancellor equitably divided the marital estate, including Martin’s military retirement, and awarded Star alimony and attorrney’s fees.
Martin appealed, complaining (1) that the Washington judgment was res judicata as to Star’s claims for equitable distribution and alimony, and (2) that, since he had only requested partition, he had not consensually submitted himself to Mississippi jurisdiction for division of his military retirement.
As for the issue of res judicata, the MSSC said, at ¶ 19, that although the Washington court properly had subject matter jurisdiction over Martin’s divorce action, it lacked personal jurisdiction over Star. A court with personal jurisdiction over only one of the parties in a divorce may not divide the parties’ assets. Therefore, the issues of property division and alimony were not res judicata by virtue of the Washington judgment, and the Mississippi Chancery Court had jurisdiction over those issues.
Note: It happens from time to time that a party, unhappy with a Mississippi temporary order or separate maintenance order, or with the slow progress of his case, or lacking viable grounds, moves to another state or jurisdiction and obtains a divorce. That does not deprive Mississippi of jurisdiction to adjudicate all of the other issues within its territorial jurisdiction that are pendant to a divorce, such as equitable distribution, alimony, child custody, child support, and so on, if the court obtains personal jurisdiction. In this case, Martin submitted himself to the personal jurisdiction of the court, and thus opened the door to the court’s adjudication of all those pendant issues.
A previous post on exactly what constitutes res judicata is at this link.
With respect to Martin’s assertion that his partition suit did not open him to other relief via counterclaim, the MSSC disagreed at ¶ 23: “It is well-established ‘that by filing suit a plaintiff automatically waives any objections he might otherwise have on grounds of personal jurisdiction to counterclaims presented against him in the suit'” [Citations omitted]
Note: Not a whole lot needs to be said about this particular point. When you invoke the jurisdiction of the court, you open yourself to any and all claims and actions that the other party has against you, both arising out of the same subject matter as the original suit (MRCP 13(a)), as well as any not arising out of the subject matter of the original suit (MRCP 13(b)).
You should read the court’s opinion. Its rationale and the authority are both something you can use in your library of helpful authority.
What is the SOL for an Action to Cancel a Deed Procured by Fraud?
March 11, 2014 § 7 Comments
SOL is a vernacular phrase that means, essentially, that one has run out luck, or words to that effect. SOL is also an acronym for Statute of Limitations. Both mean the same thing.
Statutes of limitation (SOL) are, by definition, statutory creatures of the legislature. In our state, there is a general three-year SOL for most actions, including those based on fraud. And, there is a ten-year SOL to recover land.
So, which SOL applies to an action to cancel a deed procured by fraud?
That was the question before the MSSC in the case of Lott and Saulters v. Saulters, decided January 23, 2014, in which Ralph Saulters filed suit to cancel Brenda Lott’s deed from their mother, Frances, based on fraud, and Brenda and her mother sought a dismissal based on SOL. Here is how Justice Chandler addressed the issue for the majority:
¶7. Brenda and Frances argue that Ralph’s claim for cancellation of Brenda’s deed falls under the general, three-year statute of limitations because it alleges fraud. This requires us to address the question of whether an action to cancel a deed that was fraudulently conveyed falls under the three-year statute of limitations governing actions based on fraud, or if it falls under the ten-year statute of limitations governing actions to recover land. We hold that, where a plaintiff alleging a possessory interest in the land brings an action to clear title or to recover land obtained by fraudulent conveyance, that action is governed by the ten-year statute of limitations.
¶8. Actions to recover land are subject to the ten-year statute of limitations found in Mississippi Code Sections 15-1-7 and 15-1-9. In relevant part, Section 15-1-7 provides:
A person may not make an entry or commence an action to recover land except within ten years next after the time at which the right to make the entry or to bring the action shall have first accrued to some person through whom he claims, or, if the right shall not have accrued to any person through whom he claims, then except within ten years next after the time at which the right to make the entry or bring the action shall have first accrued to the person making or bringing the same.
Miss. Code Ann. § 15-1-7 (Rev. 2012) (emphasis added). Similarly, Section 15-1-9 provides:
A person claiming land in equity may not bring suit to recover the same except within the period during which, by virtue of Section 15-1-7, he might have made an entry or brought an action to recover the same, if he had been entitled at law to such an estate, interest, or right in or to the same as he shall claim therein in equity.
Miss. Code Ann. § 15-1-9 (Rev. 2012). A suit to remove a cloud on title is considered an action to recover land. O’Neal Steel, Inc. v. Millette, 797 So. 2d 869, 873 (Miss. 2001).
¶9. Unlike the legislatures of most states, our Legislature has not created a statute setting a shorter limitations period on actions to recover land obtained by fraud; in fact, Section 15-1-9 states that actions to recover land based on fraud will have a ten-year statute of limitations:
A person claiming land in equity may not bring suit to recover the same except within the period during which, by virtue of Section 15-1-7, he might have made an entry or brought an action to recover the same, if he had been entitled at law to such an estate, interest, or right in or to the same as he shall claim therein in equity. However, in every case of a concealed fraud, the right of any person to bring suit in equity for the recovery of land, of which he or any person through whom he claims may have been deprived by such fraud, shall be deemed to have first accrued at and not before the time at which the fraud shall, or, with reasonable diligence might, have been first known or discovered.
Miss. Code Ann. § 15-1-9 (Rev. 2012) (emphasis added).
¶10. We have twice applied the ten-year statute of limitations in cases where fraud was alleged in an action to recover possession of real estate. Jones v. Rogers, 85 Miss. 802, 38 So. 742, 748 (1905), overruled on other grounds by Kennedy v. Sanders, 90 Miss. 524, 539-40, 43 So. 913, 915 (1907); Aultman v. Kelly, 109 So. 2d 344, 349 (Miss. 1959). In Jones, we explained–in the context of an action to recover land–that to take advantage of the concealed-fraud provision of Section 15-1-9 quoted above, plaintiffs must allege “that complainants did not discover or know of this fraud over 10 years before instituting their suit.” Jones, 85 Miss. 802, 38 So. 742, 748 (1905) (emphasis added). Likewise, in Aultman, where heirs sought to cancel a mineral deed they alleged was procured from their father by fraud, we stated that the heirs “were required to institute a suit within ten years from the accrual of their right.” Aultman, 109 So. 2d 344, 349 (Miss. 1959).
¶11. We disagree with the Fifth Circuit’s interpretation of Mississippi law on this issue in Suthoff v. Yazoo County Industrial Development Corporation, 722 F. 2d 133 (5th Cir. 1983). [Footnote omitted] In it, the Fifth Circuit applied a three-year statute of limitations to an action where the plaintiffs alleged that they were fraudulently induced to sell land under the auspices that their property would be condemned. Suthoff, 722 F. 2d 134-35 (5th Cir. 1983). The court acknowledged that “the ten-year period for the recovery of land has been applied in two actions in Mississippi to set aside conveyances allegedly procured by fraud,” but noted that no Mississippi court had decided “the precise issue [of] whether such an action is governed by the statute relating to actions for fraud or the statute relating to actions to recover land.” Id. at 137.
¶12. In applying the shorter statute of limitations, the Fifth Circuit followed the rule used by the majority of states. We decline to follow this majority rule, because, as mentioned above, the Mississippi Legislature, unlike the majority of states, has not created a statute setting a shorter period of limitation on actions to recover land on the grounds of fraudulent conveyance. A case from Utah, cited in Suthoff as support for this majority rule, explains the majority rule and illustrates why it should not be the rule in Mississippi given our current statutory scheme:
The legislature of this state, as in nearly all other states, has seen fit to fix a shorter period of limitation upon actions for relief upon the ground of fraud or mistake than for recovery of possession of real estate. This is for the very cogent reason that a person claiming to have been defrauded or to have been induced to enter into a contract by mistake should not be permitted to allow a great length of time to elapse after discovery of the fraud or mistake before instituting his suit . . . .
Davidsen v. Salt Lake City, 95 Utah 347, 81 P.2d 374, 376-77 (1938) (emphasis added).
¶13. Because our Legislature has not created a law shortening the time to bring an action to recover a fraudulent conveyance, and because our current statutory law imposes a ten-year statute of limitations for actions to recover land based on fraud, we decline to adopt the majority rule. We hold that, where a plaintiff alleging a possessory interest is seeking to regain title to land lost by a fraudulent conveyance, or to clarify his own title clouded by fraudulent conveyance, the action still falls under the ten-year statutes applying to actions to recover land, despite the presence of allegations of fraud. [Fn 3]
[Fn 3] We note that an action to cancel a fraudulent conveyance can fall under the three-year statute of limitations where the plaintiff does not allege a possessory interest in the land. See O’Neal Steel, Inc. v. Millette, 797 So. 2d 869 (Miss. 2001), holding that the three-year statute applied where a plaintiff-creditor sought to cancel a deed the defendant-debtor conveyed to a third party in order to avoid a judgment lien. We further note that today’s decision overrules McWilliams v. McWilliams, 970 So. 2d 200 (Miss. Ct. App. 2007), in which the Court of Appeals erroneously applied the reasoning of Millette, incorrectly applying the three-year statute where a plaintiff sought to recover land he allegedly was fraudulently induced to convey.
All of the language quoted above is important, but Footnote 3 is extremely important to understanding how the two SOL’s apply in different situations involving cancellation of a deed. I also found it interesting that a COA decision was overruled in a footnote. Just goes to show that if you don’t read every word, you might miss something crucial.
Attorney’s Fees in a Modification Case
March 10, 2014 § Leave a comment
As a general proposition, I think most family lawyers would agree that it’s out of the ordinary for there to be an award of attorney’s fees in a modification case absent a companion claim for contempt.
But it’s not unheard of, and it does happen.
Take, for instance, the recent COA decision in Collins v. Collins, handed down February 25, 2014. In that case, the chancellor had awarded Myra Collins $4,234.74 in attorney’s fees after she prevailed in her quest to obtain an upward modification of separate maintenance. Her ex, Arthur, appealed, arguing that it was erroneous for the chancellor to award attorney’s fees in a modification case when there was no allegation of contempt, and there was no finding of her inability to pay.
Judge Griffis addressed the issue for the court:
¶16. In Labella v. Labella, 722 So. 2d 472, 475 (¶12) (Miss. 1998), the supreme court found that one of the parties “clearly established an inability to pay because she was unemployed at the time of trial and her only income was in the form of unemployment benefits.” The court noted that “[t]he general rule is that if a party is financially able to pay his attorney’[s] fees[,] he should do so, though this is a matter which is entrusted to chancellor’s sound discretion.” Id. at (¶13) (quoting Anderson v. Anderson, 692 So. 2d 65, 74 (Miss. 1997)). Also, in Hammett v. Woods, 602 So. 2d 825, 830 (Miss. 1992), the supreme court ruled that “[w]here the record shows an inability to pay and a disparity in the relative financial positions of the parties, we find no error” in awarding attorney fees. Here, the lower court found that “[Myra] has proven that she has an inability to pay and that [Arthur] has the much, much greater ability to pay attorney’s fees, and therefore an award of fees is appropriate in this modification proceeding.”
Does this open the door to an attorney’s fee award in every modification case? Probably not, for a couple of reasons. First, this is a separate maintenance case, and, if you think about it, separate maintenance is in effect an ongoing temporary divorce order. Since its purpose is to provide the wife with as close as possible to her reasonable standard of living without rendering the husband destitute, it stands to reason that her standard of living should not be further reduced by having to pay attorney’s fees to mantain that standard of living. To deny her attorney’s fees wouold defeat the purpose. Second, it has always been the law that, although an award of attorney’s fees is not favored in a modification case, it is appropriate where it would impose an unfair burden on the prevailing party, as where there is a clear inability to pay, or the lack of an award would impoverish children, etc.
This case is not an outlier. Rather, it demonstrates that the chancellor has considerable discretion both as to whether to award a fee, and as to its amount.
“Quote Unquote”
March 7, 2014 § Leave a comment
“If you want to make enemies, try to change something.” — Woodrow Wilson
“It is not necessary to change. Survival is not mandatory.” — W. Edwards Deming
“I do not believe in a fate that falls on men however they act; but I do believe in a fate that falls on them unless they act.” — G.K. Chesteron
Wrongful Death and Chancery Court
March 6, 2014 § 3 Comments
If you are going to do any wrongful death practice at all, you must familiarize yourself with the MSSC’s decision in the seminal case of Long v. McKinney, 897 So.2d 160 (Miss. 2004), reh den. April 7, 2005.
The decision clarifies many important concepts involved in wrongful death claims, including priority of jurisdiction, the distinction between heirs and wrongful death beneficiaries, allocation of attorneys fees, costs and expenses, representation, conflicts of interest, and control of litigation.
What is important in this case to the chancery practitioner, however, is Justice Dickinson’s exposition on the role of chancery court.
There is much confusion in the bar, and perhaps the bench as well, about exactly what is the proper role of chancery court in wrongful death. Justice Dickinson expounds:
¶59. Perhaps no aspect of wrongful death litigation is more misunderstood and misapplied than the role of the chancery court.[Fn 13] With respect to a wrongful death suit to be pursued in circuit court, chancery jurisdiction should be invoked for the following purposes:
Fn 13. The misunderstanding can be partly attributed to the Uniform Chancery Court Rules, which address petitions for authority to compromise, and petitions for allowance of attorney fees, in wrongful death suits. U.C.C.R. 6.10, 6.12. These rules apply only to wrongful death suits which require chancery jurisdiction. See discussion infra.
Estate.
¶60. In the event the litigants wish to pursue a claim on behalf of the estate of the deceased, [Fn 14] such estate must, of course, be opened and administered through the chancery court. As is true in all estates administered through the chancery court, chancery approval is required for the appointment of the personal representative of the estate, whether executor, executrix, administrator or administratrix.
Fn 14. We recognize that, because of the limited recovery available to the estate in many cases, litigants may choose, with advice of counsel, to proceed without including a claim on behalf of the personal representative or the estate. As discussed infra, such decision should be made only after full disclosure to all who might benefit from the estate.
¶61. There is no general requirement under law that the personal representative obtain chancery approval to pursue the claims of the estate in the litigation. Nor is there a general requirement that counsel representing the personal representative and the estate in the litigation obtain prior chancery approval of such representation or the agreement for compensation of counsel. However, obtaining such prior approval is a widely accepted and wise practice.[Fn15] Such prior approval will, in most instances, avoid difficulty when the chancellor is approached for an order approving the accountings and the final distribution of estate proceeds, where such payments include compensation to counsel.
Fn 15. This is especially true where counsel representing the estate in the wrongful death litigation has not agreed, and does not intend, to represent the estate generally.
¶62. Where a recovery is had by the estate in the litigation, the proceeds must be administered and distributed though the chancery court in the same manner as other assets of the estate, and counsel for the estate must be paid from estate proceeds or assets, upon approval of the chancery court in the same manner as other debts and obligations of the estate. * * *
Minors.
¶66. Frequently, wrongful death litigation will involve a minor, either as an heir of the estate, a wrongful death beneficiary, or both. In such cases, the representation of the minor’s interests, and any agreement for the payment of attorney fees from the minor’s share of proceeds, must be approved by a chancellor, as in other cases. [BCP Note: settlement of the minor’s claim must also be approved by the chncellor, in the same manner as any other minor’s settlement.]
Determination of wrongful death beneficiaries.
¶67. Section 11-7-13 provides that wrongful death litigation may be brought by the personal representative of the deceased or by any one or more of several statutory beneficiaries, for the benefit of all entitled to recover. Unless all persons entitled to recover join in the suit, those who do have a fiduciary obligation to those do not. Miss. Code Ann § 91-1-27 (Rev. 2004) provides for a chancery determination of the heirs at law of a decedent; that is, those who inherit in the absence of a will. Although our statutes mandate no specific procedure for the identification of wrongful death beneficiaries, a chancery court may make such determinations. Those bringing the action, together with their counsel, have a duty to identify the beneficiaries, and they should do so early in the proceedings. [Fn 16]
Fn 16. Recognizing that the lack of a specific procedural framework for determining wrongful death beneficiaries is a handicap for practitioners, this Court – in its continuing review of procedural rules – will address this need.
One of the biggest sources of confusion, in my experience, is the disconnect between the status of persons as heirs and as wrongful death beneficiaries. The categories overlap, but they are not the same. A person may be a wrongful death beneficiary, and yet not be an heir. You need to read and stidy the statutes to learn the difference and to be able to identify all of the individuals who must be included. Merely filing an action to determine and discover unknown heirs at law will not identify all the wrongful death beneficiaries.
From a chancellor’s perspective, I think the most important aspect of all is that of the minor’s settlement. You can make any agreement in circuit court about how to settle the wrongful death action, but you can not tie the hands of the chancellor as to whether the settlement is reasonable or adequate for the child(ren), or as the amount of fees to which it is subject, or to its amount.
A Comment or Two on Comments
March 5, 2014 § Leave a comment
The official policy of The Better Chancery Practice Blog is to encourage comments. But there are some limitations, and that’s because this is a blog that intends to be a resource for lawyers and judges. It’s not a legal advice blog for laypeople, and it’s not a place to vent about the injustices of the world; there are plenty of web sites and blogs for that sort of thing. Not here, though.
With that in mind, here are some pointers:
- Your comment can be published anonymously, but only if I know who you are. That requires a valid email address and your identity. Two reasons for that: (1) I feel responsible for the content here; and (2) if you feel strongly enough about something to put words on the page, you should have the integrity to stand behind your words.
- Most comments I reject come from persons who are not legal professionals. Many ask basic questions about law or procedure that I can’t answer because the law prohibits me from giving legal advice. Others are critical of lawyers or the legal system, and this site is not intended to serve as a forum for that.
- Humor and enlightenment are always welcome, no matter who you are.
- Commercial comments are treated as spam, even if you are a provider of legal services or legal support services. This is not an advertisement site.
Once I approve a comment from you, your subsequent comments are approved by the system automatically, until I feel you need to back to being moderated, at which point I flip the switch. That hasn’t happened with anybody.
If you read a post and feel moved to offer an observation, an insight, a joke, a critique, a question, or a war story, don’t hold back. Just jump on in.
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