May 29, 2014 § 2 Comments
Reprise replays posts from the past that you may find useful today …
January 5, 2011 § 2 Comments
Does it ever happen to you that an heir shows up in your office and says something to the effect that “Mom says you kept the original of dad’s will. All we have is this [dogeared, coffee-stained, footprinted] copy,” and hands you a bedraggled handful of papyrus? Well, if it hasn’t, it will.
Of course, you did not retain the original [for you younger attorneys: NEVER keep the original of your client’s will]. So what will you do with this forlorn sheaf?
You will probate it. Yes, probate it. But it’s only a copy, you say; and the original will is required to be produced (See, MCA § 91-7-5, -7 and -31). True. But it is possible to probate a lost or destroyed will.
In the case of Estate of Mitchell, 623 So.2d 274, 275 (Miss. 1993), the court said:
The law regarding admission into probate of a lost will is discussed at length in Warren v. Sidney’s Estate, 183 Miss. 669, 184 So. 806 (1938). Sidney’s Estate sets forth the elements necessary to probate a copy of a lost will are: (1) the proof of the existence of the will; (2) evidence of its loss or destruction; and (3) proof of its contents. Sidney’s Estate, 183 Miss. at 675-76, 184 So. at 807. A fourth element has been added: (4) that the testator did not destroy the will with the intent to revoke it. Robert A. Weems, Wills and Estates § 7-17, p. 216 (1983). This last element, which is most central to this case, arose from the theory that when a will cannot be found following the death of a testator and it can be shown that the testator was the last person in possession of the will, there arises a rebuttable presumption of revocation.
Where a will which cannot be found following the death of the testator is shown to have been in his possession when last seen, the presumption is, in the absence of other evidence, that he destroyed it animo revocandi … 57 Am.Jur., Wills, § 551. Adams v. Davis, 233 Miss. 228, 237, 102 So.2d 190, 193 (1958); Phinizee v. Alexander, 210 Miss. 196, 200, 49 So.2d 250, 252 (1950); Horner, Probate Prac. & Est. § 79 (4th ed.). This presumption extends to all duplicate copies, even executed duplicates. Adams, 233 Miss. at 237, 102 So.2d at 194; Phinizee, 210 Miss. at 199, 49 So.2d at 252; Horner § 79.
The proponent of the will must prove each of these elements by clear and convincing evidence. See Estate of Leggett v. Smith, 584 So.2d 400, 403 (Miss.1991); Estate of Willis v. Willis, 207 So.2d 348, 349 (Miss.1968); Adams, 233 Miss. at 237-38, 102 So.2d at 194. (“The intent to revoke must appear clearly and unequivocally.” Sidney’s Estate, 183 Miss. at 676, 184 So. at 807. “The policy of the law requires such contents to be established by the clearest, most convincing and satisfactory proof.” Robert A. Weems, Wills and Estates § 7-17, p. 216 (1983).
Your petition will have to recite on personal knowledge of the petitioner, or supported by affidavits on personal knowledge, all four of the required factors.
You should probate the lost or destroyed will in solemn form. To do otherwise gives an unfair advantage to the proponent of the missing document. Probate in solemn form also seals off the protests of other interested parties and, as a practical matter, takes you directly to the hearing with notice that you will likely wind up in anyway.
At hearing, you will need to prove your four elements by clear and convincing evidence.
- Proving the existence of the will is not usually much of a problem. You will have that copy, or, if no copy is available, someone with personal knowledge can testify that the will did exist. MRE 1001-1008 would appear to govern the issue. As Rule 1008 states, the issue is for the trier of fact to determine.
- Loss of the will can be proven by testimony that the decedent kept his or her papers in a particular place and that an exhaustive search has not turned it up, or that the cabinet where the will was kept was destroyed by fire, or that it was in a repository that has now vanished.
- The “Dead Man’s Statute” has been supplanted by MRE 803(3), so proof of its contents should not be a major obstacle, so long as there is a witness with personal knowledge.
- And the same hearsay exception would apply to the testator’s destruction or intended revocation.
An interesting wrinkle appears in an ancient case, Vining v. Hall, 40 Miss. 83 (Miss. Err. & App. 1866), that is still good law. In Vining, there was conflicting and inconclusive testimony about the contents of the lost or destroyed will, but no disagreement that it included a revocation clause expressly revoking all prior wills. The court held that the revocation clause was effective despite the fact that the dispositive terms of the will could not be determined. See, Weems, Wills and Administration of Estates in Mississippi, Third Ed., § 7.15.
May 28, 2014 § 7 Comments
We recently had the benefit of a series of posts in which Presiding Judge Kenny Griffis explained the COA’s deliberation process from assignment of an appeal by the MSSc through the granting of cert.
Now Judge Griffis continues with his description of the process by which opinions are written and circulated.
How Opinions are Written and Circulated
“A judge rarely performs his function adequately unless the case before him is adequately presented.” — Louis D. Brandeis, “The Living Law”
A. Circulation of cases from other panels
Each week, I receive opinions from other panels; we call this Full Court circulation. Each opinion in Full Court circulation has been through a panel conference and was approved by at least two Judges. My decision is whether I can rely on the panel’s work and join the opinion?
I start with the opinion. I read it carefully. If I have any question about the opinion, I get the briefs, the transcript, or the record to give the case my full consideration. Often, I read the cases cited in the opinion to determine whether I can agree with the analysis. When I am satisfied, I can vote to concur with the opinion.
If I disagree with the opinion or if I am unsure, I can talk to the writing Judge, other panel Judges or any of my colleagues to see if they share my concerns. I can also conduct my own research and review. Often, I may ask the writing Judge to consider a modification to the opinion to address my concern. If a modification is not sufficient, I may write a separate opinion and provide it to the writing Judge.
If I decide to write a separate opinion, I must write an opinion that accurately discusses my concerns with the Court’s opinion. My separate opinion is circulated again with the panel opinion. If the majority of the Court agrees with my separate opinion, I have to write a new majority opinion to recirculate once again.
B. Circulation of cases from my panels
Each week, I also receive opinions in panel circulation. These opinions were written by the other Judges on my panels.
In these cases, I have already read the briefs and the record excerpts. I often reread the briefs and my notes from my preparation for the panel conference. I will use the record excerpts to find the materials that I need from the record or ask for the transcript or the record to review before I sign off on the opinion. I will read the cases that I think are relevant and necessary for me to join the panel opinion or decide to write a separate opinion.
At the panel conference, I heard the assigned Judge’s presentation and recommendation. I asked questions and voted on the recommendation. When the panel opinion is circulated, I have to check the opinion to make sure that the assigned Judge wrote the opinion based on the panel’s vote and consistent with my concerns. If I have questions about the record, I must conduct an extensive review of the record.
If I have questions or concerns about the opinion, I communicate with the writing Judge to improve the opinion. For example, I may disagree with the factual presentation and ask that other facts be added. I may also ask that the opinion include another case or citation to different authority. If I concur with the result reached in the panel opinion, I want to help the writing Judge issue a correct, adequate, and thorough opinion for the Full Court’s consideration.
If I disagree with the opinion, I can write a separate opinion and provide it to the writing Judge. My separate opinion will be circulated along with the revised panel majority opinion (the opinion-writer may revise the opinion to address my separate opinion). If the majority of the panel changes, the case has flipped. I become the opinion-writer, and I have to write the majority opinion to circulate.
My separate opinion may not carry the day at panel but, upon Full Court circulation, the case may flip after all the Judges have voted. There remains the chance that my position may prevail, and I may have to write the majority opinion.
C. Cases initially assigned to me to write
As soon as a case is assigned to me as the writing Judge, my clerks start to work on the opinion. I assign one clerk to each case. I ask the clerk to read the briefs, review the record, and read the parts of the transcript that are relevant to this case. I expect my clerk to prepare a draft opinion.
I normally start to review a case with all of the briefs, the record excerpts and a draft opinion in front of me. I almost always start with the appellant’s brief. I try to read each brief all the way through at one sitting. If the trial judge has written an opinion, I will interrupt the reading of the briefs to read the trial judge’s opinion as soon as I can.
I then read and edit my clerk’s draft opinion. I want to make sure the draft opinion has an accurate statement of facts and procedural history. I may make some notes about changes that need to be made or facts that we may need to examine in the record. I want to make sure that the opinion has accurately stated the positions of the parties. I will come back later and edit the legal analysis.
When I am assigned as the writing Judge, I focus my review from the beginning on the opinion. I read the briefs to decide the case and produce an opinion. I immediately begin to consider which brief will help me, as a reference guide, to write the opinion.
I prefer to have a final opinion ready to present at the panel conference. I plan my panel presentation based on my draft opinion. If other Judges are concerned about an issue or topic, I can tell them how I plan to write it in my opinion. If another Judge is concerned about the presentation of a fact or case authority in the opinion, I note their concern and revise the opinion to address the concern. If there are no objections or concerns, my opinion will be ready to circulate as soon as possible.
Almost one hundred years ago, the Mississippi Supreme Court complained about the fact that the “burden of case law has become unbearable to both bench and bar.” Yazoo & M.V.R. Co. v. James, 108 Miss. 852, 67 So. 484 (1915). Mississippi case law is burdensome. I try to write short, clear and crisp opinions. There are many cases that require a longer, more detailed opinion.
I hope that this material will help you understand the Mississippi Court of Appeals. Thank you for the opportunity to serve on the Court of Appeals.
May 27, 2014 § 10 Comments
Back in March, 2013, the COA reversed a chancellor’s ruling that granted summary judgment in favor of a Louisiana lawyer in a legal malpractice claim based primarily on a claim of breach of attorney-client fiduciary duties. The COA’s ruling in Forbes v. St. Martin was the subject of a post on this blog.
The MSSC, on May 22, 2014, reversed the COA’s ruling, reinstating and affirming the chancellor’s grant of summary judgment in the case.
If you do any contingent fee work, you should read this opinion. Also, Justice Lamar, for the majority, includes an interesting exposition on the principle that a lawyer’s violation of the Rules of Professional Conduct in and of itself does not necessarily give rise to a cause of action for malpractice against the lawyer.
In my 2013 post, I spelled out how fractured the COA was in its vote. Here’s what the MSSC’s looked like:
WALLER, C.J., KITCHENS AND KING, JJ., CONCUR. KITCHENS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY LAMAR AND KING, JJ.; WALLER, C.J., JOINS IN PART. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND COLEMAN, JJ. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND CHANDLER, J. RANDOLPH, P.J., AND PIERCE, J., NOT PARTICIPATING.
So it was: Lamar, Waller, King and Kitchens for the majority; Dickinson, Chandler and Coleman in the minority; and Randolph and Pierce on the sidelines.
As I have said in both of these posts, there are many ethical and professionalism overtones in this case that you may find helpful, especially in the current trend in which others pore over lawyers’ work after the fact looking to discover anything actionable.
May 26, 2014 § Leave a comment
May 22, 2014 § 3 Comments
Andrea Gaienne and Michael McMillin were divorced from each other in 2007, on the sole ground of irreconcilable differences. They shared joint legal custody, and Michael got “primary physical custody” of the two children, who were then ages 7 and 3. The parties’ PSA included the following language:
3. Child Support and School Expenses. Wife will not be required to pay child support to Husband, as Husband acknowledges and represents unto the Court that he has sufficient income in excess of that set out in the Mississippi Child Support Guidelines to fully support the minor children in his custody without contributions of child support from the Wife. However, Husband and Wife agree that each will pay one-half of any and all daycare expenses, and any other expenses relating to daycare or school, including school supplies, and sports activities for the minor children, including the costs of any uniforms, fees, and travel expenses for sports activities.
. . .
12. College Education and Expenses. Husband will continue payments to the Mississippi Impact for the minor children for their college tuition and Wife agrees to contribute and pay $500.00 per year to the Mississippi Impact fund for the minor childrens’ college tuition beginning in 2007. Husband and Wife further agree that whatever college expenses are not covered by the Mississippi Impact fund, that as such college expenses that are not covered become due, Husband and Wife will discuss and confer with one another as to which are reasonable for college for the minor children, they and will [sic] decide, if possible, the amount that each will pay toward said college expenses, and if they cannot agree, then Husband and Wife agree that the Chancery Court of Warren County will make such decisions regard[ing] the college expenses for the minor children. That this agreement will extend throughout the attainment of a bachelor’s degree or equivalent. This obligation may extend past the twenty-first birthday of either child, but it shall not extend past the twenty-third birthday of either child. Total expenses for which the Husband and Wife may be responsible and may agree on include the following: tuition, room and board, books, student fees, transportation expenses, fraternity or sorority dues, fees or expenses, and a reasonable amount of discretionary spending money. Husband and Wife further agree to consult with one another and with each minor child as to the choice of the appropriate college or university. The college or university shall be selected by the parties and the child, the majority rule.
The seven-year-old was enrolled in public school at the time of the divorce, but, after a bullying incident the parties enrolled him in a private school, sharing the tuition. Andrea thought she and Michael had an agreement that she would be relieved of the Impact payments in consideration of sharing the private school tuition, but when Michael would not acknowledge that in writing, she filed pleadings in chancery court seeking modification or clarification that she was not required by the language of the PSA to contribute to pre-college private school tuition. Michael countered with a contempt action.
The chancellor found that the agreement did require Andrea to contribute to the private school tuition, and found her in contempt. Andrea appealed.
In a ruling handed down May 15, 2014, the MSSC in Gaienne v. McMillin, addressed the issue. Justice Randolph wrote for the majority:
I. Gaiennie is not obligated to pay for private-school tuition.
¶8. “While a chancellor’s decisions in a [domestic] action are reviewed for manifest error, a property settlement agreement is a contract, and contract interpretation is a question of law, which is reviewed de novo.” McFarland v. McFarland, 105 So. 3d 1111, 1118 (Miss. 2013) (citing Harris v. Harris, 988 So. 2d 376, 378 (Miss. 2008)). This Court applies a three-tiered approach to contract interpretation. Facilities, Inc. v. Rogers-Usry Chevrolet, Inc., 908 So.2d 107, 111 (Miss. 2005). First, we apply the “four corners” test, wherein this Court “looks to the language that the parties used in expressing their agreement.” Id. “When construing a contract, we will read the contract as a whole, so as to give effect to all of its clauses.” Id. “On the other hand, if the contract is unclear or ambiguous, the court should attempt to ‘harmonize the provisions in accord with the parties’ apparent intent.” Id. (quoting Pursue Energy Corp. v. Perkins, 558 So. 2d 349, 352 (Miss. 1990)). “The mere fact that the parties disagree about the meaning of a provision of a contract does not make the contract ambiguous as a matter of law.” Cherry v. Anthony, Gibbs, Sage, 501 So. 2d 416, 419 (Miss. 1987). Secondly, if the contract is unclear or ambiguous, this Court applies the “discretionary ‘canons’ of contract construction.” Facilities, 908 So. 2d at 111. Thirdly, “if the contract continues to evade clarity as to the parties’ intent, the court should consider extrinsic or parol evidence.” Id.
¶9. Gaiennie argues that, under the terms of the property-settlement agreement, she is not obligated to pay one-half of private-school expenses. Gaiennie points to the absence of the word “tuition” in the “school expenses” provision as a clear and unambiguous indication that precollege private-school tuition was not part of the property-settlement agreement. Gaiennie also argues that there was no consideration of private school at the time the property-settlement agreement was signed. McMillin argues that the plain meaning of the phrase “any other expense related to daycare or school” necessarily encompasses private school tuition, as private-school tuition is a school-related expense.
¶10. We disagree. The absence of any reference to private school or private-school tuition in provision three controls the issue. “When a contract is clear and unambiguous, this Court ‘is not concerned with what the parties may have meant or intended but rather what they said, for the language employed in a contract is the surest guide to what was intended.’” Ivison v. Ivison, 762 So. 2d 329, 335 (Miss. 2000) (citing Shaw v. Burchfield, 481 So. 2d 247, 252 (Miss. 1985)). Looking to the four corners of the agreement, we find that it is not ambiguous. Tuition is conspicuously absent from the “school expenses” provision. (See Zweber v. Zweber, 102 So. 3d 1098, 1101-02 (Miss. 2012) (holding that “flying lessons were not included in the final judgment of divorce).
¶11. Notwithstanding that the plain language of the agreement requires no private-school tuition, if we accepted Gaiennie’s argument that absence of the word “tuition” creates an ambiguity, the result would be no different, for we would first attempt to harmonize the provisions in accord with the parties’ apparent intent. The fact that tuition was specifically included within “college expenses,” but not “school expenses” reveals the parties’ intent that private-school tuition was not intended under the agreement.
¶12. Even if we went beyond the “four-corners test,” and looked to the intent of the parties, Gaiennie would still prevail. Neither party disputes that, at the time the agreement was signed, the eldest child was enrolled in public school. Neither party disputes that, at the time the agreement was signed, it was their intent for the children to attend public school. The children attended public school for nearly three years before a bullying incident prompted consideration of private school. We find that, because private-school tuition was not specified in the agreement, we must reverse the chancellor’s holding requiring Gaiennie to pay for one-half of the children’s private-school tuition.
This decision underscores a recurring theme in PSA-interpretation cases: If you don’t specify that a particular expense is covered by the agreement, don’t assume that the court is going to write that requirement into it for you. This is especially true in cases involving private-school enrollment.
Oh, and notice the reference to Ivison in the opinion. If you click on the link it will take you to a previous post on that case that further highlights the perils of leaving things in an agreement unsaid that really should be said.
May 21, 2014 § 13 Comments
The old saw, “When you are up to your a$$ in alligators, drain the swamp,” has many useful and apt applications.
But what about when that swamp full of alligators is on your neighbor’s property, out of your control?
The latter is the situation that confronted Tom and Consandra Christmas. In 2003, they purchased a 35-acre tract of land adjacent to property owned by Exxon-Mobil (Exxon). According to the Christmases, it took them about four years to discover: (a) that the Exxon property was a waste-disposal site; and (b) that it was infested with alligators. As to (b), the Christmases claimed that their property value was impaired by the teeming gator population, and that they had lost two calves and a dog to the carniverous creatures.
They sued Exxon based on nuisance, seeking damages rather than abatement. Although they initially complained about contamination of their property, they dropped that claim. The sole remaining issue was whether the gators constituted an actionable nuisance. The Circuit Judge granted summary judgment in favor of Exxon, finding that the SOL had run, that there were no recoverable damages, and that Exxon could not legally be held liable for wild creatures on its property.
The Christmases appealed, and the COA reversed and remanded, concluding that there was a factual dispute. Exxon petitioned for cert, which was granted.
In the case of Christmas v. Exxon-Mobil, handed down May 15, 2014, the MSSC reversed the COA, reinstating and affirming the Circuit Court ruling. In its opinion, penned by Justice Lamar for the majority, the court said this:
¶9. The Christmases’ wild-alligator-nuisance claim is a case of first impression in Mississippi. However, other jurisdictions have held that private persons cannot be held liable for the acts of wild animals on their property that are not reduced to possession. See Sickmen v. United States, 184 F. 2d 616, 618 (7th Cir. 1950) (stating “a private person could not be held liable for the trespasses of animals which are ferae naturae, and which have not been reduced to possession, but which exist in a state of nature”); Roberts v. Brewer, 276 So. 2d 574, 582 (Ala. 1973). We agree. [Footnotes omitted]
¶10. Alligators are a protected species and are managed exclusively by the Mississippi Department of Wildlife, Fisheries, and Parks. Our Legislature has declared it illegal “for any person to disturb an alligator nest; to buy, sell, take or possess alligator eggs; to buy, sell, hunt, kill, catch, chase, or possess alligators or parts thereof except under permit from the Department.” Additionally, the Department narrowly defines what constitutes a “nuisance alligator” and strictly regulates the capture and removal of the same.Consequently, allowing wild alligators to constitute a private nuisance would subject landowners to liability for something over which they have no control. Exxon responded in the only legally permissible way it could to the Christmases’ alligator complaints: it called the Mississippi Department of Wildlife, Fisheries, and Parks and asked for the alligator population on its property to be reduced. Therefore, we hold that the presence of wild alligators “not reduced to possession, but which exist in a state of nature” cannot constitute a private nuisance for which a land owner can be held liable. Exxon is entitled to summary judgment. [Footnote omitted]
There must have been enough conclusive information in the affidavits of the parties for the court to find that there was no genuine issue of material fact there, although in the court’s recitation of the facts, it certainly does appear that there was a dispute whether the varmints had been brought in by Exxon’s predecessor in title or were wild. No matter, though, since there was no evidence that they were “reduced to possession” by the oil company.
I hope MDWFP has granted the Christmases a permit to abate with extreme prejudice any poodle-chomping nuisances that might stray onto their property. It’s so unpleasant to have to battle eight-foot-long reptiles while trying to enjoy a cookout in one’s own back yard.
May 20, 2014 § 7 Comments
If I remember correctly, rock beats scissors, paper beats rock, and scissors beats paper.
But as among a will, a pre-nuptial agreement, and a quitclaim deed, which beats what? That was the question posed in Estate of Jones: Dixon v. Jones, decided by the COA on April 29, 2014.
Johnnie Lee Jones, the decedent, and his soon-to-be wife, Annie Ruth, entered into a prenuptial agreement on March 19, 1997. The agreement provided that, upon Johnnie Lee’s death, the home titled in his sole name was to go to Bonnie Jones Dixon, his daughter from a prior relationship. The home was located at 171 Vine Street in Jackson.
After their marriage, Johnnie and Annie Ruth lived together in the Vine Street residence.
On September 16, 1998, Johnnie executed a will leaving the Vine Street home to Annie Ruth for her life, at which point the property was devised to his sister, Eliza Mae Webster. The will included the customary language that it revoked ” any and all previous testaments.”
Beginning in 2001, Johnnie and Annie Ruth claimed the property as their homestead.
On December 14, 2005, Johnnie executed a quitclaim deed conveying the Vine Street property to himself and his daughter Bonnie as joint tenants with right of survivorship. Annie did not sign the deed, although she and Johnnie were still married at the time.
Johnnie died on January 22, 2011, and Annie Ruth, who continued to live in the Vine Street home, filed pleadings on November 29, 2011, to admit Johnnie’s will to probate. Before an order was entered, however, Bonnie filed suit for declaratory judgment that she was the rightful owner of the property, and for damages. Bonnie relied on both the pre-nuptial agreement and the quitclaim deed. On January 17, 2012, the chancellor admitted the will to probate.
On November 29, 2012, the chancellor denied the declaratory relief. The judge ruled that the will revoked the pre-nuptial agreement, and that the deed was statutorily void because it conveyed homestead and did not bear Annie Ruth’s signature. Bonnie appealed.
The COA rejected Bonnie’s argument that the word “testaments” as used in the revocation language of the will referred solely to instruments disposing of personal property only, and not real property. The COA held that the use of the term “testaments” was interchangeable with “will,” and that MCA 91-5-3 expressly provides that a devise may be revoked by a testator’s subsequent will. The court concluded that the will revoked the pre-nuptial agreement. Interestingly, Bonnie’s attorney cited Wikipedia in support of her argument, and the COA cited www.yourdictionary in reaching its conclusion. Modern times.
As for the quitclaim deed, the court agreed with the chancellor that the quitclaim deed was void. The court cited MCA 89-1-29: “A conveyance, mortgage, deed of trust or other incumbrance upon a homestead exempted from execution shall not be valid or binding unless signed by the spouse of the owner if the owner is married and living with the spouse or by an attorney in fact for the spouse.”
The court also cited this language from Ward v. Ward, 517 So.2d 571, 573 (Miss. 1987):
Our legislature has chosen to place a restriction on the transfer or encumbrance of homesteads[,] and therefore, homesteads in Mississippi may not be alienated except in compliance with those restrictions. There can be no operative conveyance or effectual release of the exemption unless the method pointed out by the statute is pursued with strictness[,] and no requirement of the statute may be waived by the husband and wife or by either of them. Chancery will not interfere to give relief where by express law there is a limitation on the power of alienation of the homestead[,] and the final relief sought is merely to relieve that limitation. (emphasis added)
Our statutes and the case law applying them are quite protective of spouses’ homestead rights. This case is one in a long line of cases that lean in that protective direction.
The other lesson to be learned here is that a subsequently-executed will that includes appropriate revocation language will revoke any and all previous testamentary documents, including a pre-nuptial agreement.
May 19, 2014 § 4 Comments
Continuing with Judge Griffis’s paper …
4. Full Court Consideration
Each panel opinion is circulated to the non-panel judges (i.e., the “Full Court”) for consideration and vote. The briefs are not circulated with the final panel opinions.
When a panel opinion is in Full Court circulation, each non-panel Judges decides what materials they need to review to vote on the opinion. Each Judge may obtain the briefs, the record, the transcript or any other document filed in the case for their review and consideration. Each Judge may also talk to the panel Judges about the facts, issues, or the panel’s decision. With electronic filing of briefs, the briefs will be available for each non-panel Judge to access.
Each non-panel Judge is expected to vote to concur, specially concur, concur in result only, concur in part and in result, dissent, or concur in part/dissent in part. Just like a panel Judge, each non-panel Judge may also write a separate opinion or ask that the case be considered by the Court’s en banc conference. Each non-panel Judge may also offer suggestions or modifications to the opinion-writer.
b. Separate Opinion
If a non-panel Judge indicates the intent to write a separate opinion, the Judge is expected to prepare a separate opinion promptly. When the separate opinion is finished, it is sent to the majority opinion-writer to allow for revisions in the original opinion. The writing Judges then finalize their opinions.
The majority and separate opinions are then circulated to all Judges for a vote. If the majority does not change, the final opinions are ready to be handed down.
If the majority changes (flips), the author of the separate opinion becomes the opinion-writer and must promptly produce a majority opinion. The other Judge may then change their opinion to a separate opinion. The flipped opinions are again circulated for a final vote to determine the Court’s final opinion.
The circulation and recirculation of opinions are an effort to arrive at a final decision of the Court. Although it does not occur often, an opinion may be circulated three or more times, with three or more opinions.
If the Court’s vote is tied at five-five, the trial court is considered to be the tie breaking vote. On a tie vote, the Court’s decision is to affirm the trial court. The Supreme Court has no obligation to consider a case that resulted in a tie at the Court of Appeals, but this is certainly a reason that favors consideration of the case by the Supreme Court.
5. Hand Down
The Court of Appeals’ final decisions are released or “handed down” every Tuesday at 1:30 p.m. on the Court’s website.
A motion for rehearing may be filed within fourteen days of the decision. MRAP 40(a). The motion shall state with particularity the points of law or fact which the court has overlooked or misapprehended and shall contain such argument in support of the motion as movant desires to present. The motion should be used to call attention to specific errors of law or fact which the opinion is thought to contain; the motion for rehearing is not intended to afford an opportunity for a mere repetition of the argument already considered by the court.
A response to the motion for rehearing may be filed within seven days of the motion. The failure to file a response within this time period waives the right to respond but does not confess the arguments made in the motion.
There is no oral argument on a motion for rehearing. A party can only file one motion for rehearing.
A motion for rehearing must be filed before a party may petition the Supreme Court for certiorari review of the Court of Appeals decision.
A motion for rehearing is limited to the consideration of whether the Court (1) overlooked a material fact in the record or controlling authority that would require a different result, and (2) misapplied or erroneously construed controlling authority.
The Supreme Court may consider the appeal of a Court of Appeals decision on a writ of certiorari. The grant of certiorari is discretionary and requires the vote of at least four Supreme Court Justices. Certiorari is to be granted to resolve “substantial questions of law of general significance.” MRAP 17(a).
A petition for a writ of certiorari must be filed and served within fourteen days of the Court of Appeals’ decision on the motion for rehearing. The petition can have a maximum of ten pages and must state the “precise basis on which the party seeks review by the Supreme Court.” MRAP 17(b). A response may be filed within seven days.
The Supreme Court must decide whether to grant certiorari within ninety days of the response. MRAP 17(e).
Note: The second part of Judge Griffis’s paper is “How Opinions are Written and Circulated,” which will be posted soon.