The Two Types of Lawyers

July 31, 2014 § 7 Comments

There are as many ways to categorize lawyers as there are lawyers, I suppose.

Just off the top of my head, here are a few that come to mind, presented as dichotomies: professional and unprofessional; learned and ignorant; court room and office; courtly and obnoxious; prepared and unprepared; rich and poor; pit bull and diplomat; tenacious and doormat; zealous and lazy; melodramatic and understated; scholar and street smart; and so on.

Lawyers and non-lawyers alike can come up with an almost unlimited number of similar categories.

To a judge, though, there are really only two types of lawyers: those the judge can trust, and those the judge can not trust.

If you think about it, much of our legal system rests on the trustworthiness of a lawyer in his or her dealings with the court. The judge relies on the lawyer to be candid and truthful in pleadings, evidence, legal citations, and statements.

The trustworthy lawyer never knowingly makes a false representation to the court, and promptly notifies the judge when he or she discovers that something presented proves to be untrue. He or she is timely and accurate in probate and fiduciary matters, and stays in contact with the fiduciary. The trustworthy lawyer’s pleadings are in order and are accurate. When the trustworthy lawyer cites a case, it is on point. The trustworthy lawyer distinguishes unfavorable law, and acknowledges the weaknesses of his or her case, suggesting how the court can and should address them to the client’s advantage. The trustworthy lawyer is never caught in a lie because she or he never lies. If the trustworthy lawyer has overlooked a court appointment, he or she apologizes and acknowledges the mistake, rather than fabricating a half-baked, incredible excuse. The trustworthy lawyer is in control of his or her case, and never lets a client dictate strategy and tactics. He or she will withdraw from representing a client before allowing that client put him or her in a position of dishonesty, trickery, craftiness, or misrepresentation. A trustworthy lawyer’s word is his or her bond.

A lawyer who can not be trusted is one who has proven that his or her word is worthless. The untrustworthy lawyer tells the court things that prove to be untrue, and bends the truth to the client’s advantage. His or her pleadings are full of allegations that can not be supported by any facts. The untrustworthy lawyer tries to hide the truth from the court, citing only law that is favorable, suppressing what is unfavorable. When caught in a lie, he or she persists in falsehood and makes up flimsy explanations. He or she files incorrect, incomplete and false accountings in probate matters, and regularly loses contact with the fiduciary. The untrustworthy lawyer can not be relied on to be on time or prepared; the judge worries that the client is being prejudiced by poor representation. The untrustworthy lawyer does what the client wants her or him to do, even if it is underhanded and unethical.

There are lawyers who present probate matters to me whose pleadings and orders I can skim and sign off on, confident that all is in order and proper. There are other lawyers who have proven that I must read every word and carefully consider what has been presented before I sign.

I think most reasonable people would assume that a trustworthy lawyer’s client has a head start in every case, because her lawyer is not having to overcome the judge’s skepticism about her case. Vice versa for the lawyer who can not be trusted.

The lawyer’s reputation with the court is built over time with hundreds of tiny building blocks of trust. One lie can destroy it, but so can a pattern of inaccuracies and questionable acts.

When a lawyer presents case after case as emergencies demanding urgent attention, and those cases prove to be anything but, that lawyer’s trustworthiness takes a hit.

When a lawyer’s accountings in probate matters are full of inaccuracies and miscalculations, and loses track of the fiduciary, that lawyer’s trustworthiness takes a hit.

When a lawyer files motion after motion asking the court to address minutiae and praying for sanctions to rain down on the opposition, that lawyer’s trustworthiness takes a hit.

When a lawyer wastes the court’s and everyone else’s time with frivolous matters that have no chance of success, that lawyer’s trustworthiness takes a hit.

Your reputation for trustworthiness with the court is like a treasure of precious gold. If you spend it wisely and build on it, it will stand good for you the length of your career. If you squander it over time on trifles, or blow it all in one monumentally bad act, it is gone, and you may never get it back. It’s your choice to make.

Blood Money

July 30, 2014 § 6 Comments

Many years ago I represented two young children whose mother had died while on an ill-fated catfishing trip to the flooded Lost Horse Creek in northeast Lauderdale County. She had been invited on the outing by her husband, who only the week before had taken out $400,000 in life insurance policies on her life, with himself as sole beneficiary. The policies had double-indemnity provisions for accidental death.

The husband claimed that the wife had slipped in the rain-soaked mud, fell into the creek and must have hit her head on a tree limb, knocking her unconscious and either killing her by the blow, or she drowned.

The coroner disagreed, finding that she had suffered more than one heavy, crushing blow to the back of the skull with a blunt object — an injury that was inconsistent with the circumstances the husband claimed — and there was no water in her lungs, indicating that she was dead before she fell in the creek.

The husband was indicted for murder, and the proof at trial included that he had offered a local bar owner $5,000 to kill her some ten months before he himself did the deed. The husband was convicted of murder. His appeal was unsuccessful. Hammond v. State, 465 So.2d 1031 (Miss. 1985).

I filed a petition in chancery court to have the husband disqualified from recovering the insurance proceeds, which had been interpled by the insurance companies. He contested the matter, but the chancellor ruled that the proceeds were property of the woman’s estate, the only heirs of whom were the two sons. There was no appeal.

The law of Mississippi is that a life insurance beneficiary who wilfully takes the insured’s life may not recover the insurance benefits. Gholson v. Smith, 210 Miss. 28, 29, 48 So.2d 603, 604 (Miss. 1950). In the case of Dill v. Southern Farm Bureau Life Ins. Co., 797 So.2d 858, 866 (Miss. 2001), the court ruled that the standard of proof is by a preponderance.

The same rule applies in inheritance.

In the recent case of Young v. O’Beirne, adm’r of the Estate of Young, decided by the COA on June 3, 2014, the COA found that Mr. Young, who indisputably had murdered Mrs. Young, could not have any interest in her estate, based on MCA 91-1-25, which provides that “[i]f any person wilfully cause[s] or procure[s] the death of another in any way, he shall not inherit the property, real or personal, of such other; but the same shall descend as if the person so causing or procuring the death had predeceased the person whose death he perpetrated.”

A similar code section is found at MCA 91-5-33, which provides that a person who has wilfully caused or procured the death of another person shall not take any real or personal property of the decedent under any will, testament or codicil, and as to any such devise the testator is deemed to have died intestate.

Note that a plea of guilty to manslaughter, standing alone, is not sufficient to support a finding that would preclude inheritance under either statute. Hood v. VanDevender, 661 So.2d 198 (Miss. 1995). That would not preclude the chancery court, however, from finding that the act rose to the level of wilfullness that would invoke either statute, because the killing need not amount to murder, but the proof only needs to establish that it was wilful and without justification in law. Henry v. Toney, 211 Miss. 93, 50 So.2d 921 (1951).

The courtly Mr. Tom Ethridge, who taught equity and chancery practice at Ole Miss Law School years ago when such things were still worthy subjects of legal academia, used to say, “Equity means do right.” Do right. That is behind these laws. I recently told a young lawyer that if you’re uncertain about what the law might be in a given situation, figure out what the most honest, forthright thing to do might be, and you’ll probably be pretty close to what the law requires. Just do right.

Judicial Whiplash

July 29, 2014 § 3 Comments

Sometimes looking from one appellate court decision to another the swivelling between them can produce symptoms akin to whiplash. That happens, especially, when one tries to pick a path in that nebulous and shadowy border country between the jurisdiction of chancery and circuit court.

In the COA case of In the Matter of the Last Will and Testament of Hardin: Rainbow Ranch, Inc. v. Hardin, decided July 22, 2014, the chancellor dismissed some of the plaintiff’s claims without prejudice, finding that he should pursue them in a law court. The COA reversed. Here is how Judge Griffis laid it out:

¶20. John cross-appealed the dismissal without prejudice of his claims for damages against Charles and James based upon theories of fraud, conversion, breach of fiduciary duty, unjust enrichment, and the imposition of a constructive trust, and for punitive damages. At the initial hearing, the chancellor stated the issues outside of the dissolution were “circuit court matters,” and that the parties could “take that to Judge Lackey’s court and talk to him about that.” John maintains that because these claims are directly related to the underlying dispute between the parties, the chancellor abused his discretion in dismissing these claims and suggesting that the claims be pursued in circuit court. We agree and find the chancery court’s dismissal in error.

¶21. In Cuevas v. Kellum, 12 So. 3d 1154 (Miss. Ct. App. 2009), our Court addressed a similar situation. Margaret Kellum sought to dissolve her partnership with Denise Cuevas, and Cuevas filed a separate complaint, requesting injunctive relief and asserting, among other claims, a breach of fiduciary duty. Id. at 1155-56 (¶¶1-3). However, in the dissolution of the partnership, Cuevas’s individual claims were never resolved. Id. at 1157 (¶12). On appeal, Kellum argued that the chancery court did not have jurisdiction to address Cuevas’s claims. Id. at (¶14). However, this Court noted that if the complaint provides “an independent basis for equity jurisdiction, our chancery courts may hear and adjudge law claims.”Id. at (¶15) (quoting Issaquena Warren Counties Land Co. v. Warren Cnty., 996 So. 2d 747, 751 (¶10) (Miss. 2008)). “In such circumstances, the legal claims lie within the pendent jurisdiction of the chancery court.” Id. Therefore, we reversed the chancellor’s judgment and remanded “to allow evidence to be presented on the remaining claims.” Id. at 1158 (¶15). More recently, we reiterated this stance:

It has long been settled in this state, as one of the pre-eminent principles of equity procedure, that the [c]hancery [c]ourt having taken jurisdiction on any one ground of equity, will thereupon proceed in the one suit to a complete adjudication and settlement of every one of all the several disputed questions materially involved in the entire transaction, awarding by a single comprehensive decree all appropriate remedies, legal as well as equitable, although all the other questions involved would otherwise be purely of legal cognizance; and in this state, the rule goes even to the extent that if the ground of equity fail under the proof, the cause may still be retained to a complete final decree on the remaining issues although the latter present legal subjects only and the decree would cover only legal rights and grant none but legal remedies  – that having taken jurisdiction the power of the court to administer full relief is limited by nothing but justice itself. Knights’ Piping Inc. v. Knight , 123 So. 3d 451, 455-56 (¶13) (Miss. Ct. App. 2012) (quoting Derr Plantation Inc. v. Swarek, 14 So. 3d 711, 718 (¶16) (Miss. 2009)).

¶22. Accordingly, we find that the chancery court had jurisdiction over John’s remaining claims, and we reverse the chancery court’s dismissal and remand for further proceedings. We express no opinion as to the validity of these claims.

This was  litigation that arose in the context of an estate, so I can certainly see how chancery would be the most appropriate forum. And I am not going to quibble with an appellate court decision that recognizes the sweeping power of chancery court to address issues properly placed before it. That just seems to make good sense.

But consider this language from the MSSC in the case of Union National Life Ins. Co. v. Crosby, 870 So.2d 1175, 1182 (Miss. 2004):

¶ 21. The Mississippi Constitution, Article 3, § 31 provides in part that the “right of trial by jury shall remain inviolate,” and it is apparent that Union National’s right to a jury trial would be infringed upon if this case were heard in chancery court. Southern Leisure, 742 So.2d at 1090. In “[c]hancery court, with some few statutory exceptions, the right to jury is purely within the discretion of the *1182 chancellor, and if one is empaneled, its findings are totally advisory.” Louisville & Nashville R.R. v. Hasty, 360 So.2d 925, 927 (Miss.1978) (quoting McLean v. Green, 352 So.2d 1312, 1314 (Miss.1977)).

¶ 22. The public policy in favor of a plaintiff being able to choose his or her forum does not outweigh Union National’s constitutional right to a jury trial.

¶ 23. A realistic and pragmatic review of the complaint leads us to the conclusion that this is a lawsuit that should be in circuit court, not chancery court.

¶ 24. “[I]t is more appropriate for a circuit court to hear equity claims than it is for a chancery court to hear actions at law since circuit courts have general jurisdiction but chancery courts enjoy only limited jurisdiction.” Southern Leisure, 742 So.2d at 1090 (quoting McDonald’s Corp. v. Robinson Indus., Inc., 592 So.2d 927, 934 (Miss.1991)).

¶ 25. The record clearly shows that each and every one of Crosby’s claims, even the equitable claims of unjust enrichment and constructive trust, arise from the sale and alleged breach of an insurance contract. Crosby contends that the complaint does not arise from the sale and alleged breach of an insurance contract; rather, she claims that the complaint arises from the sales, administration and service of the insurance contract. This argument ignores the fact that, unless there was a contractual relationship between Union National and Crosby, she would have no claims arising from the sales, administration and service of the insurance policy. Rights and duties arising from an insurance policy are construed according to the laws of contract. Miss. Farm Bureau Cas. Ins. Co. v. Britt, 826 So.2d 1261, 1265–66 (Miss.2002). The alleged mismanagement and misappropriation of premium money concerns Crosby’s contractual duty to pay for the insurance policy and Union National to provide her coverage.

The court held that the case should be tried in circuit court.

Now, get your ice pack ready. This is from the MSSC in Derr Plantation, Inc. v. Swarek, 14 So.3d 711, 714 (Miss. 2009):

¶ 9. Under the Mississippi Constitution of 1890, circuit courts are courts of general jurisdiction, while chancery courts have limited jurisdiction over “all matters in equity” and other designated matters. See Miss. Const. art. 6 § 156 (granting circuit courts “original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court”); Miss. Const. art. 6 § 159, § 160, § 161. The constitution contains complementary provisions for the transfer of cases commenced in the wrong forum. Miss. Const. art. 6 § 157 (“[a]ll causes that may be brought in the circuit court whereof the chancery court has exclusive jurisdiction shall be transferred to the chancery court”); Miss. Const. art. 6 § 162 (“[a]ll causes that may be brought in the chancery court whereof the circuit court has exclusive jurisdiction shall be transferred to the circuit court”).

¶ 10. The jurisdiction of the chancery court is a question of subject matter jurisdiction that may be raised by either party at any time. Burnette v. Hartford Underwriters Ins. Co., 770 So.2d 948, 951 (Miss.2000). However, this Court is prohibited by the Mississippi Constitution from reversing on this issue after a final judgment. Id. (citing Miss. Const. art. 6 § 147). A party aggrieved by the trial court’s grant or denial of a motion to transfer may seek relief by pursuing an interlocutory appeal, as DPI has done here. Id.

¶ 11. “To determine whether a court has subject matter jurisdiction, we look to the face of the complaint, examining the nature of the controversy and the relief sought.” RAS Family Partners, 968 So.2d at 928 (citing Durant v. Humphreys Mem’l Hosp./Extended Care Facility, 587 So.2d 244, 250 (Miss.1991)). The reviewing court must look to the substance, not the form, of a claim to determine whether that claim is legal or equitable. Copiah Med. Assocs. v. Miss. Baptist Health Sys., 898 So.2d 656, 661 (Miss.2005). We have consistently held that if it appears from the face of a well-pleaded complaint that an independent basis for equity jurisdiction exists, our chancery courts may hear and adjudge law claims. RE/Max Real Estate Partners, Inc., v. Lindsley, 840 So.2d 709, 711-12 (Miss.2003); Tillotson v. Anders, 551 So.2d 212, 213 (Miss.1989) (citing Penrod Drilling Co. v. Bounds, 433 So.2d 916 (Miss.1983); Burnett v. Bass, 152 Miss. 517, 521, 120 So. 456 (1929)). In that circumstance, the legal claims lie within the pendent jurisdiction of the chancery court. Tillotson, 551 So.2d at 213. As long as the chancery court’s equity jurisdiction has attached, the chancery court has discretion to award legal and punitive damages. RE/Max Real Estate Partners, Inc., 840 So.2d at 712 (citing S. Leisure Homes v. Hardin, 742 So.2d 1088, 1090 (Miss.1999)).

¶ 12. Conversely, “if the complaint seeks legal relief, even in combination with equitable relief, the circuit court can have proper subject matter jurisdiction.” RAS Family Partners, 968 So.2d at 928 (citing IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 111 (Miss.1998)). In fact, if there is some doubt as to whether a case is within the jurisdiction of the chancery court, the case is better tried in circuit court because “it is more appropriate for a circuit court to hear equity claims than it is for a chancery court to hear actions at law since circuit courts have general jurisdiction but chancery courts enjoy only limited jurisdiction.” Burnette, 770 So.2d at 952 (quoting McDonald’s Corp. v. Robinson Indus., Inc., 592 So.2d 927, 934 (Miss.1991)). This Court also has cited the constitutional right to a jury trial as a reason for resolving doubtful cases in favor of circuit court jurisdiction. Burnette, 770 So.2d at 952; S. Leisure Homes, 742 So.2d at 1090. Nonetheless, a party cannot, by invoking the right to a jury trial, secure a transfer to circuit court of a case properly within the chancery court’s jurisdiction. See Issaquena Warren Counties Land Co., LLC, 996 So.2d at 751.

¶ 13. The Swareks argue that the transfer to circuit court was appropriate because the substance of their complaint was breach of contract, a claim properly heard in circuit court. It is true that in several recent cases, this Court determined that the chancery court lacked jurisdiction over a breach-of-contract case, and that the circuit court had exclusive jurisdiction. See Tyson Breeders, Inc. v. Harrison, 940 So.2d 230, 234 (Miss.2006) (claim for breach of a contract for Tyson to provide Harrison with flocks of breeder hens); ERA Franchise Sys., Inc. v. Mathis, 931 So.2d 1278, 1283-84 (Miss.2006) (primary claims for various breaches of a contract governing the parties’ business relationship); Copiah Med. Assocs., 898 So.2d at 661 (claims of breach of contract and for specific performance of a lease agreement); Union Nat’l Life Ins. Co. v. Crosby, 870 So.2d 1175, 1182 (Miss.2004) (various claims of fraud and bad faith breach of insurance contracts); Burnette, 770 So.2d at 952 (claims of bad-faith breach of an insurance contract). Each of these cases involved a breach-of-contract claim for which damages, a legal remedy, was the appropriate remedy. See Tyson Breeders, 940 So.2d at 234 quoting Roberts v. Spence, 209 So.2d 623, 626 (Miss.1968) (“ordinarily a court of equity will not attempt to enforce a contract by specific performance where the parties have an adequate remedy at law to recover damages growing out of a party’s failure to carry out a contract’s terms”).

¶ 14. In Tyson Breeders, we were careful to distinguish cases involving a “unique matter such as real estate where specific performance is a particularly appropriate remedy.” Id.; see also Copiah Med. Assocs., 898 So.2d at 660 (citing Osborne v. Bullins, 549 So.2d 1337, 1340 (Miss.1989) (recognizing specific performance as a traditional remedy for breach of a land-sale contract, especially for a seller’s breach)). In Copiah, we determined that a lease agreement for continued occupancy and use of the premises for a specific period of time for a specific purpose was not subject to the equitable remedy of specific performance, because that remedy would require periodic court supervision. Id. at 660-61 (citing Sec. Builders, Inc. v. Sw. Drug Co., 244 Miss. 877, 885-86, 147 So.2d 635, 639 (1962)). Because specific performance was not an available remedy for the breach, we held that the case was appropriately transferred from the chancery court to the circuit court. Id. at 661. We distinguished the case from Osborne, which had recognized specific performance as a remedy for a breach of a land-sale contract. Id. at 660 (citing Osborne, 549 So.2d at 1340).

¶ 15. A claim for specific performance as a remedy for breach of contract is within the equity jurisdiction of the chancery court. Lee v. Coahoma Opportunities, Inc., 485 So.2d 293, 294-95 (Miss.1986). The Swareks’ complaint alleged that DPI had breached an agreement to lease and sell them a large farm, and they claimed that specific performance was the most appropriate remedy due to the unique nature of the real estate and accompanying livestock and farm equipment. Accordingly, they requested that the chancery court order DPI to perform the agreement by delivering the property according to the contract terms. They also requested a preliminary injunction entitling them to immediate possession of the property under the lease.

¶ 16. From our review of the nature of this controversy and the relief sought, it is apparent that the Swareks’ primary claim is for specific performance as a remedy for breach of a real estate contract, an equitable claim. The requested injunctive relief also is within the chancery court’s equity jurisdiction. Issaquena Warren Counties Land Co., 996 So.2d at 751. We are fully cognizant that the Swareks also prayed that the court award them compensatory damages as an alternative to, or in addition to, specific performance. In a suit for specific performance, the court may order specific performance along with damages for the defendant’s delay in performing the contract. McVay v. Castenara, 152 Miss. 106, 112, 119 So. 155, 156 (1928). Or, the court may, in its discretion, reject the plaintiff’s claim that specific performance is the most appropriate remedy and instead award compensatory damages as the entire remedy for the breach. Frierson v. Delta Outdoor, Inc., 794 So.2d 220, 225 (Miss.2001). In a suit for specific performance, the possibility that the chancery court will reject specific performance and instead award compensatory damages does not defeat that court’s equity jurisdiction. This is because:

It has long been settled in this state, as one of the pre-eminent principles of equity procedure, that the Chancery Court having taken jurisdiction on any one ground of equity, will thereupon proceed in the one suit to a complete adjudication and settlement of every one of all the several disputed questions materially involved in the entire transaction, awarding by a single comprehensive decree all appropriate remedies, legal as well as equitable, although all the other questions involved would otherwise be purely of legal cognizance; and in this state, the rule goes even to the extent that if the ground of equity fail under the proof, the cause may still be retained to a complete final decree on the remaining issues although the latter present legal subjects only and the decree would cover only legal rights and grant none but legal remedies,-that having taken jurisdiction the power of the court to administer full relief is limited by nothing but justice itself.

McClendon v. Miss. State Highway Comm’n, 205 Miss. 71, 78, 38 So.2d 325, 327 (1949) (citation omitted).

¶ 17. The Swareks argue that their claim for punitive damages for willful and intentional breach of contract implicated the jurisdiction of the circuit court. We have stated that the fact that punitive damages are sought is a “strong indicator” that the matter is legal, rather than equitable. ERA Franchise Sys., Inc., 931 So.2d at 1282 (citing Crosby, 870 So.2d at 1179). However, the Swarek’s addition of a punitive-damages claim, which is an extraordinary remedy not favored in Mississippi law, Bradfield v. Schwartz, 936 So.2d 931, 936 (Miss.2006), does not outweigh their request for specific performance, which is recognized as a traditional and appropriate remedy for the wrong alleged. Osborne, 549 So.2d at 1340. Moreover, once the equity jurisdiction of the chancery court has attached, the chancery court has the power to award “legal and even punitive damages.” S. Leisure Homes, 742 So.2d at 1090.

¶ 18. Having filed an action for specific performance within the chancery court’s jurisdiction, the fact that the Swareks now express a preference for a legal remedy does not divest the chancery court of jurisdiction. In City of Starkville v. 4-County Electric Power Association, 909 So.2d 1094, 1101 (Miss.2005), Starkville argued that the case should have been transferred from chancery court to circuit court because, since the time of its filing, the suit had “become basically a breach of contract suit wherein Starkville seeks to recover compensatory and punitive damages from 4-County for its failure to comply with the terms of the 1963 Agreement.” This Court rejected Starkville’s argument. Id. at 1102. The Court looked to the prayer in the complaint which Starkville itself had filed in chancery court. Id. at 1101. The prayer requested relief that is parallel in many respects to that requested by the Swareks, including: (1) declaring the validity and enforceability of the contract; (2) specific performance of the contract; (3) a temporary and a permanent injunction; (4) actual and punitive damages, and (5) a prayer for general relief. Id. This Court found that the fundamental substance of Starkville’s action was equitable. Id. at 1102. We stated:

When we review Starkville’s complaint in today’s case, we can state with confidence that the relief sought on specific performance of a contract is typically the type of relief to be considered by our chancellors sitting as a court of equity. Additionally, Starkville presumably made a knowing and conscious decision to commence this litigation in chancery court (as opposed to circuit court) when it filed its complaint in 1995. This case has been litigated in chancery court, appealed to this Court, and relitigated in chancery court. As we stated in Rogers [ v. Eaves, 812 So.2d 208, 211-12 (Miss.2002)], because the chancery court had already heard extensive litigation in the case, it was certainly in the best position to hear and resolve the relevant issues in the related case which had been commenced. In fact, in today’s case, the same chancellor has been involved with the litigation of this case since its inception in 1995. Who was in a better position to fairly and correctly decide the issues in this case than the learned chancellor who had presided over all the proceedings in this case from the very beginning?

Id. (citations omitted). As in City of Starkville, the chancery court acquired jurisdiction over the Swareks’ complaint because the fundamental nature of their claim was for the equitable remedy of specific performance; additionally, the chancellor has presided over the matter through discovery and dispositive motions and she is thus well-positioned to fairly and correctly decide the issues to be tried.

¶ 19. The Swareks’ argument that their right to a jury trial would be infringed if this case remained in chancery court does not avail them. [Footnote omitted] The Mississippi Constitution provides that “[t]he right of trial by jury shall remain inviolate.” Miss. Const. art. 3, § 31. “In ‘chancery court, with some few statutory exceptions, the right to jury is purely within the discretion of the chancellor, and if one is empaneled, its findings are totally advisory.’ ” Burnette, 770 So.2d at 952 (quoting Louisville & Nashville R.R. v. Hasty, 360 So.2d 925, 927 (Miss.1978)). However, no jury trial is required by section 31 for cases within the chancery court’s jurisdiction. Re/Max Real Estate Partners, Inc., 840 So.2d at 713. Chancellors historically have had jurisdiction over claims for specific performance of a real estate contract. McVay, 152 Miss. at 112, 119 So. at 156. It may be expected that the chancery court, in adjudicating a request for specific performance, also will be called upon to adjudicate the validity, construction, definiteness or enforceability of the purported contract. See Busching v. Griffin, 542 So.2d 860 (Miss.1989); Hutton v. Hutton, 239 Miss. 217, 119 So.2d 369 (1960); Keene v. Lowenthal, 83 Miss. 204, 35 So. 341 (1903). As we have discussed, the substance of the Swareks’ complaint was for specific performance of a real estate contract. Because this case was within the chancery court’s jurisdiction, the Swareks cannot secure a transfer to circuit court by requesting a jury trial.

If you made it this far, I am sure you will agree with me that, as a lawyer, these cases and the various ones cited give you about a 50-50 chance of being right in selecting whether to proceed in chancery or circuit. And that means you have a 50-50 chance of getting reversed and having a do-over.

Just try not to get whiplash when you get hit from behind.

The Noblest Profession

July 28, 2014 § 7 Comments

It’s easy for lawyers to become jaded and cynical. We often experience people at their worst, and, like workers in a hot dog plant, our access to the inner workings of justice can dull our appetite for the legal system.

So the good we do is often obscured by the muck and grime of everyday practice.

With those thoughts in mind, check out these observations I ran across …

The butt of many jokes, but to me the noblest profession to be entered.

We are the conduit between the lowest, smallest citizen and the bar of justice.

We help people in their time of deepest need.

We are their strength to lean on and their voice for defense, complaint, protection, and freedom against those who might abuse or take advantage of for money or power.

We have a great deal of responsibility.

We are the reason our cars are safe, our medical care is excellent, our consumable products are of proper quality, our right to speak is available, and our freedom is foremost.

The Law here makes this all available and lawyers are the conduit.

Obvious, however, is the fact that lawyers are mere men and women and their ability to accomplish these noble tasks are limited by their intellect, work ethic, and moral compass.

I take comfort however in remembering that when the clergy backed the inquisition and witch hunts, and teachers taught a flat world and that the world was the center of the universe, and physicians bled George Washington with leaches and conducted surgery with unwashed hands, killing more patients than their disease did, Lawyers were drafting documents such as the Magna Carta, the Declaration of Independence, and the Constitution of the United States and its Bill of Rights.

Our profession in the right hands is the noblest to be entered.

Those thoughts are from attorney Henry Palmer, of Meridian, who died week before last at age 65 after collapsing in federal court in Jackson. Henry kept a journal where he recorded random thoughts on various subjects. They were not intended for publication, I am sure, but his son, Hap, shared them at the funeral and allowed me to post them here.

Henry loved the law and the legal profession. He was a former DA and Circuit Judge, and in private practice was an accomplished advocate. He enjoyed discussing legal points and was a master at being able to view cases from different perspectives and in persuading judges to see what he saw. He was wise and down-to-earth, intelligent and humble, courtly and witty, and it was always a pleasure to be in his company.

It’s fitting that this old warrior fell in the arena he enjoyed most, arguing a motion to dismiss. And he was true to his client to the end. When he came to, before he could be rushed to a hospital, the judge asked whether there was anything she could do, and Henry responded, “You could grant my motion, Judge.”

Henry’s motion to declare the legal profession to be the noblest is well taken and should be granted. He was one of the noblest.

More Dispatches from the Farthest Outposts of Civilization

July 25, 2014 § 1 Comment







The 4(h) Club

July 24, 2014 § Leave a comment

No, I’m not talking about raising livestock and watermelons. I’m talking about how you can get clubbed by operation of MRCP 4(h), which can raise some nasty lumps.

R 4(h) states:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

The obvious peril of this rule is operation of the statute of limitations (SOL). If your complaint is dismissed and the statute runs before you can get it refiled, your proverbial goose is cooked. But it is equally parboiled if you fail to effect process within the 120-day period. Here’s what the MSSC said in the case of Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (Miss. 2002):

Filing a complaint tolls the applicable statute of limitations 120 days, but if the plaintiff fails to serve process on the defendant within that 120-day period, the statute of limitations automatically begins to run again when that period expires. Watters v. Stripling, 675 So. 2d 1242, 1244 (Miss.1996). A plaintiff who does not serve the defendant within the 120 day period must either re-file the complaint before the statute of limitations ends or show good cause for failing to serve process on the defendant within that 120 day period; otherwise, dismissal is proper. Id. at 1244; Brumfield v. Lowe, 744 So. 2d 383, 387 (Miss. Ct. App.1999). The plaintiff bears the burden of establishing good cause. M.R.C.P. 4(h).

That language is quoted in the recent MSSC decision in Lewis Entertainment Inc. d/b/a Extreme Skate Zone v. Brady, decided July 17, 2014.

In that case, the plaintiffs had failed to get process on Lewis within the 120 days, and the SOL ran the day after the 120-day period ended. The court noted that, under the rule, the only way for the plaintiffs to keep their action alive was to show good cause for failure to serve Lewis within the 120 days.Justice Lamar, for the unanimous court, set out what constitutes good cause:

¶9. To establish good cause, the plaintiff has the burden to show “at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules does not suffice.” When making a good-cause determination, the following factors should be considered:

a. the conduct of a third person, typically the process server,

b. the defendant has evaded service of the process or engaged in misleading conduct,

c. the plaintiff acted diligently in trying to effect service or there are understandable mitigating circumstances, or

d. the plaintiff is proceeding pro se or in forma pauperis.

The Bradys are not proceeding pro se or in forma pauperis and nothing in the record suggests that their failure to timely serve Lewis is attributable to the conduct of a third person or to Lewis. The Bradys simply claim their failure to serve Lewis is justified by their attempts to serve Oak Grove. We disagree.

¶10. The Bradys waited until the last day of the 120-day period to attempt to serve Oak Grove. On that day, their process server learned that the Bradys had named the wrong defendant, but, instead of identifying the correct defendant, the Bradys continued to attempt service on the wrong party for two weeks. The Bradys also failed to request additional time to serve process until seventy days after the 120-day period expired and three weeks after they were informed that their case was going to be dismissed. And, even after they filed a motion for additional time, they failed to set it for hearing and have yet to name the proper defendant.

The court went on to hold that those facts did not constitute good cause that would save the plaintiffs’ case.

Lewis is an appeal from a county court case. In chancery, we do not routinely deal with statutes of limitation like they do in county and circuit courts. But for those chancery matters that do involve SOL, R 4(h) is as applicable here as it is in the law courts.

Beware of the club.

Wow. Just Wow. Part Deux

July 23, 2014 § 9 Comments

It was only month before last that I posted in Wow. Just Wow about a plaintiff’s attorney who failed to appear on time before a MSSC panel for a show-cause hearing, and kept digging his hole deeper as he addressed the court. He was fined and ordered to contact the lawyers’ assistance program.

Well, it appears that the lesson did not take. Here’s what the court ordered last week:


Vicksburg Healthcare, LLC d/b/a River Region Health System v. Clara Dees; Warren Circuit Court; LC Case #: 10,0151-CI; Ruling Date: 01/22/2013; Ruling Judge: Isadore Patrick, Jr.; Disposition: Attorney Michael E. Winfield shall appear before this Court on Thursday, July 24, 2014, at 10:00 a.m. and show cause, if any he can, why he should not be held in contempt for failing to pay timely to the Clerk of this Court the sanctions imposed in the May 2 order. Winfield shall file a response to Vicksburg Healthcare’s Motion to Hold Appellee in Contempt and Second Motion to Hold Appellee in Contempt on or before July 14, 2014. Counsel for Vicksburg Healthcare shall appear at the show-cause hearing on Thursday, July 24, 2014, at 10:00 a.m. and present Vicksburg Healthcare’s Motion to Hold Appellee in Contempt and Second Motion to Hold Appellee in Contempt. Winfield is hereby given notice that a finding of contempt could result in one or more of the following: (1) having the Appellee’s Brief struck; (2) entry of a judgment in favor of Vicksburg Healthcare; (3) an order that he pay the entire $2,586 in attorney’s fees incurred by Vicksburg Healthcare; (4) suspension or disbarment; or (5) incarceration until Winfield purges himself of contempt. A copy of this order shall be forwarded to Winfield’s client, Clara Dees, at the mailing address provided by Winfield to the Clerk of this Court. Order entered.


Perfecting Your Appeal

July 22, 2014 § Leave a comment

I think there is considerable confusion among attorneys over how to perfect an appeal and what are the deadlines that apply.

Jane Tucker has an excellent post, Perfecting Your Appeal, that sets out the process in 1-2-3 order, in about as clear a fashion as can be done. I recommend that you read it and have it handy for your next appeal.

From motions and orders of the MSSC that cross my desk, I have seen confusion over appeal bonds, deadlines, deposits for record costs, and designation of record. It’s really not that complicated, though; the MRAP applies, and the procedures are there.

Two final points … (a) MRAP 24(b) requires that the trial judge be served with a copy of every brief; in practice, this is not being done; and (b) If you file a petition for an interlocutory appeal, it would be courteous and a singular mark of your professionalism if you would simultaneously serve a copy on your trial judge because she is permitted to file a response within 14 days of your filing, per MRAP 5(b).

I don’t usually address appeal procedures here because I try to focus on chancery trial practice. With the apparent confusion I have seen among some lawyers in getting their appeals aloft, I thought this might be helpful.

Ravenstein: Sizzle or Fizzle?

July 21, 2014 § 7 Comments

I vote fizzle.

Last December I reported that the MSSC was asking for additional briefing in the case of Ravenstein v. Hawkins ” … addressing whether equal protection would be violated by an interpretation that child support may not be ordered for adult children who are mentally or physically incapable of self-support under Sections 93-5-23 and 93-11-65, given the mandate of Section 43-19-33 that a certain class of people may receive such support …”

To me, that signaled that the high court was preparing to address the troubling issue of parental duty to support adult disabled children. The last MSSC case to address the issue was Hays v. Alexander, in June, 2013, about which I posted here. Back then, I said this:

The MSSC yesterday ruled in Hays v. Alexander that there is nothing in the common law that would empower the court to create a duty in parents to support adult disabled children. The court said at ¶ 15: “The power to grant the authority to require parents in Mississippi to support their adult children is confided to a separate magistry: the Legislature. Our courts are without the constitutional power to declare otherwise.”

The court handed down its adjudication of Ravenstein last Thursday, and, the bottom line is that we are exactly where we were post-Hays v. Alexander.

John and Elisha Ravenstein were divorced from each other in 1998. In the divorce judgment, the chancellor ordered Mr. Ravenstein to pay lifetime child support for his handicapped son, Ryan. The chancellor found that it would be unjust for the child to become a ward of the state upon attaining age 21 when the parents had the financial ability to care for him. John filed a R59 motion, but never appealed.

When Ryan turned 20, his mother filed a petition asking to be appointed Ryan’s conservator. John counterclaimed that he should be appointed conservator, or that both parents be appointed co-conservators.

When Ryan turned 21, John stopped paying child support to Elisha or Ryan, and deposited the money into the registry of the court. He also filed a MRCP 60(b) motion asking the court to find that the 1998 judgment was void as a matter of law, since it improperly extended his child support obligation beyond Ryan’s 21st birthday.

The chancellor ruled in Elisha’s favor on the conservatorship. She also overruled John’s plea for R60 relief. John appealed.

The MSSC, by Justice Waller, affirmed the chancellor’s ruling on the R60 issue, the rationale for which is worth a read. The court reversed and remanded on the appointment of the conservator because the court applied the wrong legal standard.

On the issue of the application of the code sections cited above, the court said:

 ¶32. After a thorough review of the supplemental briefs filed by the parties and the State, we find that it is unnecessary to address this issue.  We find that John waived his right to challenge his child-support obligation when he failed to appeal Chancellor Lutz’s 1998 judgment and waited thirteen years to attack it collaterally. We reach this conclusion without deciding whether Sections 93-5-23 and 93-11-65 of the Mississippi Code should be interpreted to allow for the provision of post-majority support for adult disabled children. The constitutionality of Section 43-19-33(3), which does not apply to the parties here, is not relevant to the disposition of this case.  See Kron v. Van Cleave, 339 So. 2d 559, 563 (Miss. 1976) (“It is familiar learning that courts will not decide a constitutional question unless it is necessary to do so in order to decide the case.”).

Thus, when he failed to appeal in 1998, John waived his right of review and the court was deprived of authority to address the issue.

Justice King wrote a brilliantly-reasoned dissenting opinion making a strong case that our law in this area is unconstitutional as a denial of equal protection. If you ever have a case involving this issue, he has written your brief for you.

I think this is an issue that must be addressed eventually. Ravenstein, however, proved not to be the vehicle due to its peculiar procedural posture.

Maybe when the right case goes up Justice King will write the majority opinion.

New CLE Requirement for New Lawyers

July 18, 2014 § 6 Comments

The MSSC yesterday published a new CLE requirement for new lawyers. The change takes effect July 1, 2015.

The change will mean that newly-admitted lawyers will be required to undergo a new-lawyer program to be created and administered by the Commision on Mandatory Legal Education. Currently, lawyers are exempt from CLE requirements in their first year of practice.

This is the new language:

 Each attorney newly licensed to practice law in the State of Mississippi, from and after August 1, 2015, shall, by the conclusion of the second CLE year occurring after their date of admission to The Mississippi Bar, attend or complete a new-lawyer program approved by the Commission on Continuing Legal Education, which shall be comprised of a total of twelve (12) actual hours of CLE to include six (6) hours of basic skills training and six (6) hours of ethics/professionalism. Completion of the new-lawyer program shall satisfy the requirement of subsection (a) of this Rule for such newly licensed attorney for both the CLE year of admission and the next succeeding CLE year.

Attorneys newly licensed to practice law in the State of Mississippi, but previously admitted to the practice of law in another state, may be exempted from completing the six (6) hour basic skills training component of the new-lawyer program. To qualify for this exemption, within three (3) months of admission to The Mississippi Bar, the newly licensed attorney must submit an affidavit to the Commission on Continuing Legal Education, providing the date or dates of admission in every other state in which the attorney is admitted to practice and a declaration that the attorney has been actively engaged in the practice of law for five (5) or more years immediately prior to admission in this state. Upon submission of a timely affidavit, the newly licensed attorney shall be required to complete the six (6) hour ethics/professionalism component of the new-lawyer program within nine (9) months, after which time the attorney will be required to comply with the annual CLE requirement prescribed in Rule 3(a). Attorneys eligible for the exemption prescribed herein who fail to timely submit the required affidavit shall be required to complete the new-lawyer program in its entirety.

I give the concept an A+. Especially the ethics and professionalism component. I’ll withhold grading execution until I see the curriculum and the results.

But I hope new lawyers won’t think this few hours of classroom time will season them somehow into competence.

It takes a lot of hard work to develop a person into a lawyer. A law degree and admission to the bar are merely your permission to commence that process. And it takes help; you can only do it imperfectly on your own.

There’s a clear difference between a young lawyer who has had the benefit of mentoring and one who has not. The problem is that there are many young lawyers who never have the benefit of mentoring. Some are merely “thrown into the fire” by lawyers in their law firm because that’s how they themselves learned, or out of indifference, or in the mistaken belief that the youngster learned how to practice law in law school. Some are on their own and never seek out a mentor, and no one ever offers. Some think they know it all and do not need a guiding hand. All of those approaches are misguided and only render the young lawyer’s growth process either far more difficult or even doomed, because practicing law nowadays is far too complicated to figure out without help.

Can a few hours of lecture and a sheaf of forms substitute for wise, gray-haired advice and assistance? I insist not.

If you are a young lawyer feeling your way awkwardly along the foggy, snare-laden landscape of the law, I encourage you to seek out an experienced, ethical lawyer and make arrangements for him or her to give you advice and guidance on how to practice the law you learned about in law school. Offer to carry his or her briefcase to trial to see how it is done. Ask about what it takes to do a title opinion. Seek out that wise counselor to help you resolve ethical and practical questions that come up for which the answers are not immediately obvious to you.

Law school introduces you to how to think like a lawyer (analytical thinking), the basics of the law, and how to find the law. That’s about 10% of what is involved in the practice of law. The other 90% you will have to master through your own efforts and with help.

So I look at this new requirement as a positive step. But not a substitute for the strenuous process of becoming a lawyer.

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