Some Language to Add to your Fiduciary Orders
June 17, 2014 § 7 Comments
In this district we have had a problem with fiduciaries having been appointed and never qualified by taking the oath and posting any required bond, and consequently not having Letters issued.
A fiduciary has no authority to act unless and until that person has qualified, which requires taking the oath, posting any required bond, and having Letters issued.
In one case in my court the person appointed used the order appointing him, without Letters of Administration ever having been issued, to sell a car, and he closed a couple of bank accounts. He sold the car and pocketed the money; who knows what he did with the funds. The lawyer who opened the estate spent a considerable sum out of his own pocket trying to recover the estate’s money. Not surprisingly, the perpetrator was judgment proof and can no longer be found on this planet.
In another case, a woman (not the mother) testified that she was guardian of the child, but when I ordered the insurance attorney to get the guardianship file, it showed that only an order appointing her had been entered, and she had never taken an oath or posted a required $10,000 bond. Incidentally, she testified that her lawyer had told her that the order was adequate, and she proceeded to use that apparent authority to negotiate a settlement of the child’s claim.
We came up with some language that we now require all attorneys to include in their orders opening estates, guardianships, and conservatorships. You may find this language useful in your own district, and even if you find it superfluous, you just might conclude that there’s no harm in including it.
Here it is:
IT IS FURTHER ORDERED AND ADJUDGED that if the fiduciary has failed to qualify by posting the required bond, if any, taking the oath, and having appropriate Letters issued as required by this order and the laws of the State of Mississippi within thirty (30) days of entry of this order, then the Chancery Clerk is hereby ordered and directed to notify the court immediately of such failure, and the court shall enter an order dismissing this civil action without prejudice and without further notice to the fiduciary, or attorney of record for the fiduciary, or any other parties who have entered an appearance in this civil action.
IT IS FURTHER ORDERED AND ADJUDGED THAT THIS ORDER DOES NOT AUTHORIZE [Name] TO ACT AS THE FIDUCIARY FOR [Name of ward or decedent] UNLESS VALID LETTERS [Testamentary, or of Administration, or of Guardianship, or of Conservatorship] ARE ATTACHED HERETO.
IT IS FURTHER ORDERED AND ADJUDGED that persons who use or accept this order without the attached Letters as court authority to act or conduct the affairs of the [ward or decedent] shall be subject to sanctions by this court.
“Quote Unquote”
June 13, 2014 § Leave a comment
“Sometimes I wonder whether the world is being run by smart people who are putting us on or by imbeciles who really mean it.” — Mark Twain
“Justice is a concept. Muscle is the reality.” — Linda Blandford
“Throughout history it has been the inaction of those who could have acted, the indifference of those who should have known better, the silence of the voice of justice when it matters most, that have made it possible for evil to triumph.” — Haile Selassie
Four Years and Counting
June 12, 2014 § 17 Comments
This blog was born on June 14, 2010. This coming Saturday will mark its fourth birthday.
The inspiration to do this came from an exasperated chancellor in an adjoining district who called to inquire whether I was having problems, as he was, with attorneys not complying with the amended adoption pleading requirements and jurisdictional residence periods. Those amendments had been in effect over two years, and lawyers were still expressing surprise that there had been any changes in the statutes. I had been dealing with the matter one lawyer at a time, with scant progress.
I cast about for a way to address a wider audience: CLE? Newsletter? What would work best? One morning, enjoying one of my usual blog-readings, it occurred to me that, if I could build up a readership, I could get the word out more effectively. A blog could do that. And if the scope were widened enough to include many of the things I have learned over 40 years of practicing law and judging, then it might just be worthwhile.
So I started Chancery12, with “News and helpful information about practice in the 12th Chancery Court District, Place 2.” Later, I broadened the scope further, simply focusing on “Better Chancery Practice” in our Mississippi courts.
The result is that I have heard from lawyers and judges across the state (and even in other states) who have found this useful and helpful. Nearly 300 of you receive updates via email. There are 400-600 visitors per day, M-F.
I enjoy hearing from everyone. I don’t always have time to address your comments, emails and even correspondence. I hope that does not offend anyone.
The blog comments are always a good source of thoughful (sometimes humorous) interchange of views. If you have stood on the sidelines reluctant to comment, I encourage you to jump in.
I reckon we’ll keep on going a while.
Where Do We Go from Here?
June 11, 2014 § 2 Comments
I don’t know about you, but when I practiced I always wondered what to do with a case once it was remanded from the COA or MSSC. Do you start over? What is the effect of the appellate court’s ruling on the case on remand? Can the judge try the case on the record already presented? Can we amend to clear up some of the problems from the initial, unproductive attempt?
Do we start over?
Not exactly. The ancient law of Mississippi is that a remand restores the parties to the exact position that they occupied at the time of the reversed judgment or decree. Harris v. Newman, 6 Miss. 654 (1841). And where only a portion of the judgment is reversed, the effect is to place the parties in the same posture they were in before entry of that judgment, with the unaffected portions remaining in effect. Lloyd Wood Const. Co., Inc. v. Little, 623 So.2d 968, 972 (Miss.1993).
In a case where the appellate court reversed the granting of a divorce and remanded the case to the trial court, this would mean that the court would start from before entry of the reversed judgment, with the pleadings as they were at that point.
What is the effect of the appellate court’s instructions on the case on remand?
The appellate court’s ruling often includes instructions. These are the law of the case, and are binding on the trial court. In the preceding example, for instance, the appellate court might have directed that the court retry the issue of grounds for divorce to consider certain aspects, or, in another case, for the trial judge to consider and address Ferguson, Albright or Armstrong factors. I once represented a client in a case that we got reversed and remanded, with a COA finding that there had been a material change in circumstances adversely affecting a minor child, and directing the court to proceed accordingly. The remand trial would have proceeded on the assumption that two prongs of modification were assumed, and that best interest was all that remained, but we settled before that trial.
Are amendments permitted to clear up some of the problems from the initial, unproductive attempt?
Griffith addresses the point this way: “The remanding of a case to the trial court is for the purpose of a trial de novo, and the trial court has the same power to allow amendments to the pleadings …” as it had prior to the reversal. Griffith, Mississippi Chancery Practice, 2d Ed., 1950, § 697. See, also Pigford v. Ladner, 142 Miss. 435, 107 So. 658 (1926).
Can the judge try the case on the record already presented?
The purpose of the remand is for a new trial in which ” … the [parties] will be entitled to introduce … evidence anew, together with such additional evidence as [they] may desire to offer, and the defendants be allowed to meet the proof offered by the complainant … ” Clark v. Clark, 203 Miss. 28, 31, 33 So.2d 293 (1948). The scope of the trial on remand may vary considerably from the original trial.
But if the pleadings have not been amended, and the issues are the same, and the parties agree to submit the case to the court on the original record, with the judge to address omitted factors or other matters directed by the appellate court, then there would seem to be no problem. In fact, I read an opinion of the COA in the past year or so in which that very procedure was employed, and the COA on the second appeal merely recited that was done, without comment. I have not been able to find that case for this post.
Candor Toward the Tribunal
June 10, 2014 § Leave a comment
I am aware of two cases lately — neither in my court — in which lawyers filed pleadings with the court that were false and misleading, and then pursued those pleadings in an effort to reduce them to judgment.
In both cases, the lawyers knew that the facts stated (and sworn to by the clients) were false.
Rule of Professional Conduct (RPC) 3.3 states:
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
* * *
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
* * *
(c) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.
The comment to the rule makes it clear that the lawyer will be held responsible for pleadings filed with the court, although he is not required to have personal knowledge of their accuracy when filed. MRCP 11, which requires the attorney to sign every pleading filed, states that:
“The signature of an attorney constitutes a certificate that the attorney has read the pleading or motion; that to the best of the attorney’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.”
The requirement is so serious that any pleading that does not comply may be stricken as sham, and the action may proceed as if it had never been filed.
From the above, it should be obvious to even the greenest among us that there can be professional repercussions from playing fast and loose with this duty of candor.
Beyond the language of the rules, though, there is the lawyer’s relationship with the court to consider. Chancellors must rely on the honesty and good faith of lawyers who come before them in order to make correct decisions. When a lawyer stretches the truth, or conceals material facts, or presents information that is known to be untrue, that lawyer is inflicting grave injury on himself with the court. Once the judge has found an attorney to be untrustworthy, it may take years — if ever — for the lawyer to recover his lost standing with that judge. The penalties can include closer scrutiny, being required to prove and provide authority for even simple assertions, and skepticism toward the merit of that lawyer’s cases.
I have said before that your reputation with a judge is like a store of gold. If you spend it frugally and wisely, and only as truly needed, it will last you the length of your career. If you squander it, you may never gain it back.
A Helpful Primer on HCIT
June 9, 2014 § 2 Comments
Judge Maxwell of the COA often includes lucid, concise explanations of the law in his opinions. I find his statements of the law to be a helpful guide in resolving issues that come before me.
One of the most confusing areas of domestic law is how to define what is and is not habitual cruel and inhuman (not “inhumane”) treatment (HCIT), per MCA 93-5-1. In the case of Harmon v. Harmon, handed down June 3, 2014, the COA affirmed the chancellor’s award of a divorce in favor of Linda Harmon against Courtney Harmon on the ground of HCIT. Judge Maxwell, for the unanimous court, set out this helpful exposition on what constitutes HCIT under our law:
¶14. Courtney first argues the chancellor wrongly granted Linda a divorce based on habitual cruelty. See Miss. Code Ann. § 93-5-1 (Rev. 2013). To prove cruelty, a party mustshow conduct that either:
(1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the non[]offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.
Smith, 90 So. 3d at 1262 (¶10) (quoting Richard v. Richard, 711 So. 2d 884, 889 (¶22) (Miss.1998)). “The conduct must consist of something more than unkindness or rudeness[.]” Jackson v. Jackson, 922 So. 2d 53, 56 (¶4) (Miss. Ct. App. 2006) (quoting Horn v. Horn, 909So. 2d 1151, 1155 (¶7) (Miss. Ct. App. 2005)). Want of affection or incompatibility is not enough. Id. The complaining party must prove one of these two prongs by a preponderanceof the credible evidence. Smith, 90 So. 3d at 1262-63 (¶10).
¶15. Generally, habitually cruel conduct must be “routine and continuous.” Jackson, 922So. 2d at 56 (¶4) (citing Moore v. Moore, 757 So. 2d 1043, 1047 (¶16) (Miss. Ct. App.2000)). However, a pattern is not always required. Sometimes, a single act of physical violence is sufficient. Smith, 90 So. 3d at 1263 (¶13) (citing Curtis v. Curtis, 796 So. 2d1044, 1047 (¶8) (Miss. Ct. App. 2001)). But in cases like this where there is no physical violence, we consider the frequency and severity of the conduct, and the impact on the offended spouse. Id. “[V]erbal abuse, neglect, and the like,” considered independently, willnot amount to cruelty. Id. (quoting Jackson, 922 So. 2d at 57 (¶8)). But if these combinedacts manifest a course of revolting conduct, they may give rise to cruelty.Id.
¶16. In reviewing a cruelty-based divorce, “there is a dual focus on the conduct of the offending spouse and the impact of that conduct on the offended spouse.” Id. at 1263 (¶11)(quoting Bodne v. King, 835 So. 2d 52, 59 (¶24) (Miss. 2003)). This specific inquiry is subjective. Id. (citing Faries v. Faries, 607 So. 2d 1204, 1209 (Miss. 1992)). Instead of using an ordinary, reasonable-person standard, we concentrate on the conduct’s effect on the particular offended spouse. Id. (citing Faries, 607 So. 2d at 1209). Though a party alleging cruelty must generally corroborate his or her testimony, an exception is made “where corroboration is not reasonably possible because of the nature of the accusation.” Id. at(¶12).
On that last point — corroboration — Judge Maxwell adds this helpful footnote: “For example, corroboration may be unnecessary in unusual cases, such as isolation. Jones v. Jones, 43 So. 3d 465, 478 (¶30) (Miss. Ct. App. 2009). Further, “‘the corroborating evidence need not be sufficient in itself to establish the ground,’ but rather ‘need only provide enough supporting facts for a court to conclude that the plaintiff’s testimony is true.’” Id. (quoting Deborah H. Bell, Bell on Mississippi Family Law § 4.02[8][d] at 74(2005)).
That is essentially a hornbook on HCIT, complete with supporting authority, that you can use to your client’s benefit next time you have an HCIT case.
Bound by the Record
June 5, 2014 § 4 Comments
It’s axiomatic that if you don’t introduce evidence to support a particular claim, your trial judge can not grant your client that relief.
It’s also axiomatic that, if you don’t make a record on a given point, you may not raise it for the first time on appeal.
Those two principles are what tripped up Donald Ainsworth in his attempt to reverse a chancellor’s ruling that based child support on all of his income, including annual bonuses and commissions from vehicle sales. Judge Carlton, writing for the COA in its opinion in Ainsworth v. Ainsworth, issued May 27, 2014, explained:
¶16. Donald argues the chancellor erred in determining his income for child support. Donald claims his yearly bonus and income from vehicle sale are not regular income for purposes of calculating child support. We first note Donald failed to raise the issue of his yearly bonus in his motion for reconsideration. It is well settled that an issue raised for the first time on appeal is barred from our review. See Ory v. Ory, 936 So. 2d 405, 409 (¶9) (Miss. Ct. App. 2006). Thus, we will only review Donald’s argument concerning income from vehicle sales.
¶17. The chancellor calculated Donald’s adjusted gross monthly income to be $4,562, which consisted of his salary, his bonus, and profits from vehicle sales. Following the statutory guidelines in Mississippi Code Annotated section 43-19-101(1) (Supp. 2013), the chancellor ordered Donald to pay $912.40, or twenty percent of $4,562, per month in child support. The chancellor noted that Donald admittedly failed to report income from any vehicle sales on his Rule 8.05 financial statement. The chancellor also noted Donald had failed to comply with her temporary order of December 2, 2010, which required Donald to report the sales of any vehicles to Melanie and to deposit the money from the sale of these vehicles into the registry of the court. During trial, Donald admitted that he made a small profit 3 from vehicle sales but purposefully did not report the sales of these vehicles, either to the chancery court or to the state or federal government for income-tax purposes. Donald also claimed he had no documentation by way of receipts or invoices for the sale of these vehicles. Donald testified he intended to continue selling vehicles and anticipated similar profits.
¶18. With respect to the chancellor’s finding, this Court cannot find the decision to include Donald’s profits from vehicle sales in her calculation of child support to be clearly erroneous. “The chancellor, being the only one to hear the testimony of witnesses and observe their demeanor, is the sole authority for determining the credibility of the witnesses.” Madden v. Rhodes, 626 So. 2d 608, 616 (Miss. 1993). Accordingly, we find this issue to be without merit.
The court also swatted aside: (1) Donald’s argument that the chancellor erroneously ordered him to pay a share of the children’s extracurricular activities; and (2) the court’s award of the tax exemptions to his ex-wife. Both arguments were rejected because he “failed to raise this issue in his motion for reconsideration.”
A few comments:
- A R59 motion is the vehicle you need to employ to bring to the chancellor’s attention matters on which you offered proof at trial, but were not addressed by the judge. Unless it is crystal clear from a reading of the trial transcript that you offered proof to support a given claim, you can not assume that the appellate court or the trial judge will view it that way. In this case, for instance, Donald may have thought that admitting his tax return into evidence was enough to preserve the tax exemption claim, but that evidence goes to many points in a contested divorce trial. File a R59 motion and specifically point to the proof in the record that supports your claim, and give the judge a chance to rule on it. That preserves the point for appeal.
- If you don’t offer any evidence at trial to support a claim, it won’t do you any good to file a R59 motion because the judge has to have evidence in the record to support her findings.
- If you don’t offer any evidence at trial to support a claim, you not only lose that point at trial, but you also are barred from raising it for the first time on appeal. I am constantly amazed at how many attorneys simply do not put on proof in support of their claims. A good example is the request that a child support payor maintain a life insurance policy. Usually the only evidence is a witness saying that she wants him to have a policy. There is no testimony about the cost, or whether the payor is insurable, or anything else that would influence me one way or the other.
- The only exception to the above is where there is newly discovered evidence that could not have been discovered in time to file a R59 motion. In that case, you need to file a R60(b)(3) motion.
I’ve mentioned here before that there is no “motion to reconsider” in our practice. That terminology is usually used to describe a R59 motion, but a R59 motion is actually for rehearing, or a new trial. Actually, though, there is such a thing as a motion to reconsider. Can you find it? [Hint: check out R60(c)].
Social Security and Reduction of Alimony
June 4, 2014 § 1 Comment
May a chancellor grant a downward modification of alimony based on the ex-wife’s post-divorce receipt of Social Security benefits that are derived from the ex-husband’s earnings record?
That was a key issue in the case of Cockrell v. Cockrell, handed down by the COA on May 25, 2014. In that case, the chancellor had found a material change in circumstances based on the husband’s serious deterioration in health, and reduced his alimony by $557 a month, which was the amount of the ex-wife’s Social Security benefits that she qualified for based on the ex-husband’s earnings record. The COA affirmed. Judge Fair’s opinion, for the majority, based its holding on the case of Spalding v. Spalding, 691 So.2d 435 (Miss. 1997).
In Spalding, the ex-wife had filed an action to enforce the alimony provisions of a foreign divorce judgment, and the trial judge allowed the ex-husband a credit for Social Security benefits received by the ex-wife based on the ex-husband’s earnings record. It’s not exactly the same scenario as that in Cockrell, but it’s close enough to decide the issue.
Here is how the Spalding court addressed the issue, beginning at page 438:
In ruling that the use of Social Security payments may be an alternative source of satisfying alimony obligations, the chancellor relied upon this Court’s earlier decisions of Mooneyham v. Mooneyham, 420 So.2d 1072 (Miss.1982), and Bradley v. Holmes, 561 So.2d 1034 (Miss.1990). In Mooneyham, this Court weighed decisions from a number of other jurisdictions and held that Social Security payments derivative from the child support payor should be credited against child support. The Court cited with approval the Georgia case of Horton v. Horton, 219 Ga. 177, 132 S.E.2d 200 (1963), which stated the basic policy:
Social Security disability payments represent money which an employee has earned during his employment and also that which his employer had paid for his benefit into a common trust fund under the Social Security Act. 42 U.S.C. § 301, et seq. These payments are for the purpose of replacing income lost because of the employee’s inability to work upon becoming disabled. Thus, these payments substitute for income. Since the amount of alimony required to be paid is determined largely by income, we see no reason why, in discharging the obligation to pay the alimony, Social Security disability benefits should not be credited.
Mooneyham, 420 So.2d at 1074. This Court stated that the decisions considered from other jurisdictions “appear to be unanimous in holding the social security payments to the minor … should be credited on the amount of support ordered by the court.” Id. at 1073.
Eight years later, this Court followed the logic and holding of Mooneyham in deciding Bradley. Bradley held that a retired father’s child support commitment would be credited for Social Security payments the minor child was eligible to receive premised upon the father’s income record, even though the child’s mother chose to receive Social Security benefits based on the income history of the child’s retired stepfather. Bradley, 561 So.2d at 1035–36. This Court stated that “[e]quity suggests that child support obligations are to be off-set, not only to the extent of payments actually received under the Social Security Act, but also for payments the child was entitled to receive, based on the parent’s retirement.” Bradley, 561 So.2d at 1036 (citation omitted).
This Court’s holdings in Mooneyham and Bradley aligned Mississippi with the majority of jurisdictions which have examined this issue. See Pontbriand v. Pontbriand, 622 A.2d 482, 484 (R.I.1993), which stated that the “overwhelming majority of states that have considered this issue allow a credit for Social Security benefits paid to dependent children.”
The issue raised here on appeal has not been previously presented to this Court. However, in the cases of Frazier v. Frazier, 455 So.2d 883 (Ala.Civ.App.1984), and Brewer v. Brewer, 613 So.2d 1292 (Ala.Civ.App.1992), Alabama has considered this issue and extended the principle of derivative Social Security benefits satisfying child support obligations to cases involving alimony claims. In Frazier, the Alabama Court of Civil Appeals held that the trial court erred in not allowing Social Security benefits which the wife received and which were derived from her husband’s Social Security account as credit against his alimony arrearage. Frazier, 455 So.2d at 885. In discussing whether or not to extend derivative Social Security benefits *439 to alimony claims, the court in Frazier remarked:
[w]e cannot fathom any valid reason or reasonable logic as to why the rule of law in the Binns [v. Maddox, 57 Ala.App. 230, 327 So.2d 726 (1976)] and Bowden [v. Bowden, 426 So.2d 448 (1983) ] cases, supra, should not apply to periodic alimony as well as to child support. One of the obvious purposes of Social Security benefits is to partially replace income which is lost because of the retirement of an employee because of age or disability. The payments substitute for income.
Frazier, 455 So.2d at 885.
Appellant contends that the instant case can be distinguished from the Mooneyham case because it deals with retirement benefits rather than disability benefits. This Court, in Bradley, applied the Mooneyham rule to a situation dealing with derivative Social Security retirement benefits, evidently finding no reason to distinguish between Social Security benefits premised on retirement as opposed to disability.
Appellant asserts that Congress did not intend to permit Social Security payments to be an alternate source of income for the satisfaction of an alimony obligation. No cases were cited by Appellant to sustain this conclusion. This Court has held that it will not consider an assertion of error for which there is no authority cited. Armstrong v. Armstrong, 618 So.2d 1278, 1282 (Miss.1993); Smith v. Dorsey, 599 So.2d 529, 532 (Miss.1992); R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990).
Appellant insists that the decision of the chancellor to credit derivative Social Security benefits against alimony represented a downward modification of the alimony granted to Betty Spalding, asserting that William failed to meet his burden of proof regarding a material change in circumstances. This Court, in Mooneyham, applied derivative Social Security benefits as credit against child support obligations. Mooneyham, 420 So.2d at 1074–75. Here, we indicated that derivative Social Security payments credited against child support obligations are to be considered as substitute income. Mooneyham, 420 So.2d at 1074. The chancellor in the instant case applied that same logic to derivative Social Security benefits with respect to alimony, and treated the credit against alimony as an alternate source of income out of which alimony obligations are permitted be satisfied.
The chancellor arrived at the same conclusion as did the Alabama Court of Civil Appeals in Frazier, supra, i.e., no valid reason exists to treat derivative Social Security benefits differently with respect to alimony or child support. In the instant case, Betty Spalding’s Social Security benefits are derived in large part from William’s work history and income record. The monies paid into the Social Security fund by William and his employers for the duration of the marriage and the time following the divorce generated the source from which Betty Spalding’s benefits are paid.
The chancellor applied the holding in Mooneyham concerning derivative Social Security benefits as credit against child support obligations to analogous circumstances in an alimony claim. Ample evidence in support of his ruling is found in both Mississippi law and the law of our sister state of Alabama. The chancellor applied the correct legal standard, did not abuse his discretion, and did not commit manifest error. Accordingly, this assignment of error is without merit.
If this rule applies in modification and contempts, it should apply as well in original proceedings where an alimony obligation is being calculated. You might be able to come up with formulations based on the Social Security website calculators that a judge might find helpful in crafting an alimony provision.
The Better Chancery Practice Blog 
*POOF* MRCP’s Comments are Gone …
June 16, 2014 § 4 Comments
… to be replaced by a pared-down version. The MSSC order entered June 12, 2014, is here. The order includes the text of the new comments.
You should note that these are not posted for comment. They are posted to give notice that the deed is done. The new comments take effect July 1, 2014.
In the interest of full disclosure, I am on the committee that crafted the new comments. The goal was to eliminate archaic case citations, language that merely repeated the rule, and references to pre-rules practice that are no longer helpful or comprehensible by attorneys who have been in practice fewer than 32 years (the period of time that the MRCP has been in effect). The language of the remaining material was clarified and made gender-neutral. I can assure you that the process was thorough — it took around three years — and the discussions were intense. Every constituent group of the bar and judiciary was represented. Where it was felt that a particular comment was needed for lawyers to have a basic understanding of a rule, careful attention was give to drafting language that would elucidate the rule. Some rules that have generated a large body of case law went uncommented.
If you find this development traumatizing, I suggest you do as I will do, and keep a couple of copies of the former comments handy. You’ll never know when they just might have that wee modicum of authority that you need to tip the scales in your client’s favor.
On a related note, I have heard from several sources that there was a growing sentiment among the MSSC to do away with the comments altogether because some have tried to use comments to try to expand the meaning of the rules. This latest order seems to be a middle route.