Change to In Forma Pauperis
September 30, 2014 § Leave a comment
MRCP 3(c) is the rule that governs the filings of actions by persons who, due to poverty, are unable to afford to pay filing fees.
Until last Thursday, the rule read this way:
(c) Proceeding in forma pauperis. — If a pauper’s affidavit is filed in the action the costs deposit and security for costs may be waived. The court may, however, on the motion of any party, on the motion of the clerk of the court, or on its own initiative, examine the affiant as to the facts and circumstances of his pauperism.
Last Thursday (September 25, 2014), the MSSC, on its own motion, replaced the above language with this:
(c) A party may proceed in forma pauperis in accordance with sections 11-53-17 and 11-53-19 of the Mississippi Code Annotated. The court may, however, on the motion of any party, on the motion of the clerk of the court, or on its own initiative, examine the affiant as to the facts and circumstances of his pauperism.
MCA 11-53-17 provides as follows:
A citizen may commence any civil action, or answer a rule for security for costs in any court without being required to prepay fees or give security for costs, before or after commencing suit, by taking and subscribing the following affidavit:
“I, _____________, do solemnly swear that I am a citizen of the State of Mississippi, and because of my poverty I am not able to pay the costs or give security for the same in the civil action (describing it) which I am about to commence (or have begun, as the case may be) and that, to the best of my belief, I am entitled to redress which I seek by such suit.”
MCA 11-53-19, reads this way:
The court may dismiss an action commenced or continued on affidavit of poverty, if satisfied that the allegation of poverty was untrue.
It’s not a major substantive change, for sure, and it will not affect most of you in your practice, but it is a change to bear in mind for the occasional case where the client is unable to afford to pay the filing fee.
One thing that caught my attention was the court’s deference to the legislative act. Is it just my imagination, or has the high court been trending slightly in that direction? I haven’t had time to go digging back to verify, but it seems that way to me. If so, it’s somewhat significant because when the MSSC originally adopted the MRCP, it signaled a power struggle between the judicial and legislative branches that had repercussions throughout Mississippi government. The court’s order on May 26, 1981, clearly sent the message that the courts, and the courts alone, would determine their rules of procedure.
Another thing that strikes me is some of the archaic language of Section 15. The phrase ” … answer a rule for security for costs …” invokes procedure that we have not seen in our courts since the MRCP went into effect 32 years ago. We have not had a rule (nisi) since the MRCP. Also, the idea of security for costs harks back to old procedure under which costs were incurred document-by-document-filing as the litigation proceeded, and lengthy litigation could result in substantial costs, as opposed to the current procedure of one-price litigation. Thus, another party, or the clerk, seeing costs mounting, could ask the court for a “rule” to put up some security in the event that the party was unsuccessful in his or her quest.
The Bad Earth
September 29, 2014 § 3 Comments
Slander of title is one of those rare actions that one sees a couple of times in a career. The recent MSSC case, Mize v. Westbrook Construction, et al., handed down September 4, 2014, illustrates, perhaps, why that is.
Jerry Mize purchased 56 acres of land. The seller told him that, although most of the tract sat north of County Road (CR) 206, a small part of it lay south of the road. Westbrook and the other defendants (Westbrook), however, took the position that their deeds gave them title to all the property south of the road.
Mize then employed an engineering firm to survey the property and prepare a corrected deed in an effort to resolve the difference. The corrected deed was also necessary because the original deed had a description that did not close. The survey confirmed Mize’s position, but Westbrook refused to recognize it, relying instead on their own deeds that had been prepared by another surveying firm in 2004, which set the boundary in the center line of CR 206, not south of it.
Mize went ahead and recorded the corrected deed and filed suit to quiet and confirm title. Westbrook answered and counterclaimed to quiet and confirm their own title, and for slander of their titles.
After a trial, the chancellor accepted Westbrook’s survey and found that, even if Mize’s property did extend south of CR 206, Westbrook had obtained title by adverse possession. The trial court also found for Westbrook on the slander-of-title claim, and awarded damages of $32,530.05. Mize appealed. The COA affirmed, and the MSSC granted cert.
Justice Randolph, for a unanimous court, laid out the framework for a slander-of-title suit:
¶7. To succeed in an action for slander of title, a claimant must show that another has falsely and maliciously published statements that disparage or bring into question the claimant’s right of title to the property, thereby causing special damage to the claimant. Walley v. Hunt, 212 Miss. 294, 304, 54 So. 2d 393, 396 (1951). The slander may consist of a writing, a printing, or words of mouth, but they will provide grounds for a cause of action only if the statements have been made falsely and maliciously. Id. Whatever the statement, however, in order for it to form the basis of a right of action, it must have been made not only falsely but maliciously. Id. (citations omitted).
¶8. Malice, however, may be inferred from one’s actions. Phelps v. Clinkscales, 247 So.2d 819, 821 (Miss. 1971). “The law determines malice by external standards; a process of drawing inferences by applying common knowledge and human experience to a person’s statements, acts, and the surrounding circumstances.” Id. As such, the chancellor’s finding of malice should be given great deference and can be reversed only if it is clearly erroneous. Mason v. Southern Mortgage Co., 828 So. 2d 735, 739 (Miss. 2002). Here, the chancellor found malice in Mize’s actions; however the record is silent as to whether Mize knowingly made a false publication.
The court then turned its attention to the filing of the corrected deed. Was that sufficient to support a finding of malice?
¶9. This Court has held that the mere filing of a corrected deed is not sufficient to show malicious intent. Wise v. Scott, 495 So. 2d 16, 21 (Miss. 1986). Wise involved a dispute of mineral rights between parties following a conveyance of a mineral deed. Id. at 20. After realizing that there had been a drafting error in the original deed that had a material effect on the parties’ property rights, the defendant sought to correct the error through a corrected deed. Id. at 21. The plaintiffs successfully sued the defendant for slander of title in chancery court. Id. On appeal, this Court reversed the chancery court, finding that malice cannot be shown by the mere filing of a corrected deed, if the party who filed the corrected deed had a bona fide belief of ownership. Id.
Since Mize had a bona fide belief based on his sellers’ representations, and he had reason to file a corrected deed to remedy its failure to close, it was error for the trial court to find malice in the filing of the corrected instrument in the absence of proof of “falsity, guile, or trickery.”
And what about the filing and pursuit of the suit by Mize? Did those actions constitute malice? The court answered, “No” because communications published in the course of a lawsuit are absolutely privileged. And, as for continuation of the litigation after the seller had given an affidavit that she never intended to sell any property owned by Westbrook, the MSSC said that a party who acts under a reasonable belief of title can not be held to have acted maliciously. Since Mize had his survey and corrected deed, his acts were based on a reasonable belief.
The court reversed the chancellor’s finding of slander of title and the award of damages.
Reprise: Show Me the Money!
September 25, 2014 § Leave a comment
Reprise replays posts from the past that you might find useful today …
SHOW ME THE MONEY!
March 10, 2011 § 1 Comment
As a judge I can tell you it’s hard to capture every detail in my trial notes. Sometimes the witness just speaks so fast that I stay three sentences behind, trying to catch up, and just can’t get it all. Sometimes the significance isn’t clear until much later in the trial or even when the judge is writing the opinion, and then it’s too late. Sometimes a verbose witness will bury the critical info under an avalanche of mostly meaningless words.
Next time you have an equitable distribution case, why don’t you sit down with your client during your trial preparation and work up a spreadsheet that shows how she wants the marital estate divided. You already have it in part with the joint property list that is included in the pre-trial order. Why not just rearrange all those assets into the manner that your client wants them divided. Once she identifies it, offer it into evidence, and the judge has the graphic depiction of how your client wants the case to go rather than just a gob of words. Instead of devoting your time (and the judge’s wayward attention) to a painstaking item-by-item approach, you can zero in on how your client justifies a greater share of the marital estate, and concentrate on the several important items she just has to have. With the preparation of a simple document you will have sharpened the focus of your case and made it more efficiently compact at the same time.
Or, if your client wants the financial assets divided a certain way, you can show the division he wants AND add a column with reduced values for tax penalties, etc., assuming you have that proof in the record.
Or, if your client has a claim for reimbursement of medical bills, why not create a table or spreadsheet itemizing all the charges, showing dates, providers, amounts charged, amount paid by insurance, and balance, with totals.
Or, if your client wants specific visitation, why not spell it all out in a proposed schedule.
Here’s how you get them in:
You: Let me show you a document and ask you what it is.
Witness: It’s a table showing [my proposal to divide the marital estate/the financial assets and how I want them divided/a summary of the medical bills/my visitation proposal].
You: Does this table accurately reflect the [marital assets/financial assets] that are already in evidence? Or: Is this the schedule you wish the judge to adopt?
Witness: Yes.
You: Now, let me ask you a few questions about this …
When you put all those words into an exhibit, you are saving the judge all the work of trying to make notes of them at trial, and you are making sure that everything you want to say won’t be missed by the judge. The judge will have a document to look at rather than having to ferret that information out of his sheaf of notes.
In other words, the easier you make it on the judge, the more probable it is that your client will be very happy with the outcome of the case and the job you did.
TPR: It Takes More than Non-Payment of Support
September 24, 2014 § 2 Comments
The COA decision in Fuller v. Weidner, decided September 16, 2014, is a reminder of a couple of basic concepts in termination of parental rights (TPR) cases.
James Fuller and Rachel Weidner had a non-marital relationship out of which was born Remmy Fuller on February 13, 2009.
James and Rachel’s association was punctuated with domestic-violence and protective-order actions, and on April 14, 2010, James was ordered to have “no contact involving the child until chancery court establishes custody.”
On April 27, 2010, the chancery court entered a child support order in a DHS case it filed against James, including an assessment of past-due support.
In May, 2012, Rachel filed a TPR action against James. A GAL was appointed per the statute, and when the case finally reached trial in April, 2013, the chancellor found that James had abandoned Remmy, and terminated James’s parental rights. James appealed, arguing that the chancellor misapplied the law and erred in finding that he had abandoned his daughter.
The COA affirmed. Here is the pertinent part of Judge Lee’s opinion:
¶7. Fuller acknowledges his two issues are intertwined and addresses both together. So do we. Mississippi Code Annotated section 93-15-103 (Rev. 2013) lists several grounds for the termination of parental rights. Sections 93-15-103(3)(b) and (f) allow for the termination of parental rights if:
(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or
. . . .
(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment . . . .
In this instance, the chancellor determined that Fuller had not contacted Remmy “for more than the six (6) months mandated by statute.” Fuller contends the chancellor misapplied the law because Remmy was three at the time Weidner filed the termination action; thus, the applicable time period should have been one year. However, the chancellor specifically found Fuller had not seen Remmy since April 2010, and had not attempted to establish any visitation with her. At the time of the hearing in April 2013, Fuller had not seen his daughter in three years.
¶8. Fuller admits he has not seen Remmy since April 2010, but states he was under the mistaken belief that he was not allowed to contact her until the chancery court established custody as required by the restraining order. Fuller acknowledges he did try to contact Weidner after the restraining order had expired but was unable to reach her and did not attempt to contact her directly again, even though he knew where Weidner and Remmy were living.
¶9. The chancellor further determined that Fuller had failed to pay any child support for approximately two years, and only began to pay once Weidner filed her termination action. We do recognize that “[f]ailure to pay child support without more is insufficient predicate for a finding of abandonment.” Carter v. Taylor, 611 So. 2d 874, 877 (Miss. 1992). We reiterate that at the time Weidner filed the termination action, Fuller had not seen Remmy in two years nor made any serious efforts to do so. “A finding of substantial erosion of the parent/child relationship necessarily involves a consideration of the relationship as it existed when the termination proceedings were initiated.” G.Q.A. v. Harrison Cnty. Dep’t of Human Res., 771 So. 2d 331, 338 (¶29) (Miss. 2000). A substantial erosion can be proved by showing a prolonged absence and lack of communication between the parent and the child. Ainsworth v. Natural Father, 414 So. 2d 417, 420 (Miss. 1982). In a similar case, this Court affirmed the chancellor’s decision to terminate a father’s parental rights since the father had admittedly not seen his child in two years and only started paying child support after the termination action was filed. R.L. v. G.F., 973 So. 2d 322, 324-25 (¶¶8-10) (Miss. Ct. App. 2008).
A couple of points from a fairly clear-cut case:
- Whichever side of the case you’re on, in my experience failure to have contact within the statutory time without serious mitigating factors is pretty much a slam-dunk when it comes to TPR.
- Failure to support is more of an aggravating circumstance that lends weight to the termination action, but, as the case cite says, it does not warrant TPR in and of itself.
If James had been serious about seeing and contacting his daughter, there are numerous ways that he could have documented his efforts and created substantiating testimony. The inescapable conclusion he left both the chancellor and the COA was that he had really made no effort because he had no proof other than his naked assertions.
If a James comes to your office complaining that he has had trouble contacting and visiting with his baby, advise him of the TPR law and help him document his efforts. Then file an action to establish or enforce his visitation rights. The sooner the better. Oh, and be sure to tell him that a dad who isn’t paying child support gets little or no sympathy from the chancellor.
Point of Personal Privilege
September 23, 2014 § 7 Comments
Having reached what I consider to be a personal milestone on this date, I am taking a point of personal privilege to set out a few conclusions that I have reached:
- Life is complicated. It makes me laugh to hear the talking heads, pols, and other simpletons who claim to have the answer in a platitude or two.
- Rigid, inflexible, judgmental, dogmatic people tire me out.
- Needed in much more abundance: Joy, peace, patience, kindness, gentleness, self-control, faithfulness, and goodness. Gal. 5:22
- Needed in much less abundance: cynicism, egotism, hatred, dishonesty, self-gratification at the expense of others, unwillingness to empathize, cruelty, willful ignorance, and self-righteousness.
- We need less religion, and much more of God.
- The devil does not come as a creature with horns, dressed in a ridiculous red suit, carrying a pitchfork. The devil comes in the fulfillment of our deepest cravings and irresistible urges.
- As my time on this divot of the universe winds down, I am less and less willing to devote any of my personal time to what I find unpleasant, hurtful, or meaninglessly confrontational.
- If we could look truly dispassionately at most of the everyday concerns about which we are most passionate – things such as sports, possessions, politics, competitions – we would realize that they are really trifles, lighter than a feather, compared to what should really capture our passion.
- Do not trust people who are harsh and punitive.
Check back in fifteen or so years, and if I’m still around, these may have changed, and I may have more or fewer.
You may now return to your usual activities.
The Missing Link
September 22, 2014 § 6 Comments
Here’s a typical trial scenario with inexperienced lawyers:
L1: Now, your honor, we ask that this document be admitted into evidence.
L2: Objection. Hearsay and not properly authenticated.
CH: Sustained.
L1: Um, uh, er. Okay. So, Mr. witness, what did you do next?
Stop right there. What did L1 not do that he should have done?
If you said, “Proffer,” or “Offer of proof,” you are correct. If you didn’t get it, well, you need to read — attentively — on.
In the case of Granger v. State, 853 So.2d 830, 833 (Miss. App. 2003), the court said, ” … a party who wishes to preserve an issue for appeal must make a proffer. Generally, when a party seeks to offer evidence which in turn is excluded by the trial court, before we will consider the matter on appeal the party must somehow have placed in the record the nature and substance of the proffered evidence for our consideration.”
MRE 103(a)(2) covers the point:
(a) Error may not be predicated on a ruling which admits or excludes evidence unless a substantial right of a party is affected, and … (2) In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
So, if L1 above could not have stumbled his way around the objections, he should have made a proffer that would look something like this:
L1: Now, your honor, we ask that this document be admitted into evidence.
L2: Objection. Hearsay and not properly authenticated.
CH: Sustained.
L1: We ask that this document be marked for identification purposes only.
That way, the substance of the document is part of the record, and the appellate court can look at it and judge for itself whether it should have been excluded.
Now, getting the document into the record may not be all the appellate court needs to know about it. The court may need to know more in order to make a proper decision. So L1 would then take that document marked for ID, tell the court he would “like to make a proffer,” or would “ask to make an offer of proof,” and when permission is granted either ask the witness questions about the document that make the record, or make a statement into the record about the document and its nature and substance, and why it was admissible. At the conclusion, L1 should say, “Now I am off proffer,” or “that concludes my offer of proof,” or words to that effect. Nothing said or offered in proffer is considered by the trial judge, but it may be considered by the appellate court.
That latter procedure also works where the trial judge has sustained objections to questions you ask the witness, and you need that information in the record.
Despite the language of the rule, you should never assume that the substance is apparent from the context. You should always make your proffer.
This is important because your key role at trial is not to have the trial judge rule for you, or to satisfy your client, or to be the best-dressed lawyer. Your key role is to MAKE A RECORD of every bit of evidence that supports every element of your case, in a way that is intelligible to the appellate court. No matter how convincing your case was to the trial judge, no matter how charming and persuasive you were in the court room, if you haven’t made a good record you run the substantial risk of getting your case reversed on appeal. Clients hate that.
If you do not make a proffer when the court excludes evidence, you are leaving a missing link in your record that may snatch defeat from the jaws of victory.
When Can a Chancellor Award Punitive Damages?
September 18, 2014 § 4 Comments
Bar-Til entered into a contract as a subcontractor to do some work for Superior Asphalt on Pull-A-Part’s property. Problems arose with some environmental regulations that required some change orders. As the work expanded, so did the bills, and Superior quit paying the invoices.
Bar-Til sued Superior for breach of contract, breach of covenant of fair dealing, and breach of fiduciary duty. Bar-Til included Pull-A-Part on the basis that it had been unjustly enriched by Bar-Til’s uncompensated effort. When the trial was in its third day, Bar-Til moved to amend its complaint to allege bad faith, seeking punitive damages from Superior. The chancellor granted the motion, but clarified that only the issue of whether punitive damages would be an issue was before the court. He said that Bar-Til could “offer the proof of punitive damages when we decide if that’s going to be an issue.”
At the conclusion of trial, the chancellor found for Bar-Til on the breach of contract issue, and added that Bar-Til was even entitled to recover on a quantum meruit basis. The chancellor found that Bar-Til failed to prove that Superior acted in bad faith or breached a fiduciary duty, and so failed to prove entitlement to punitive damages. Since no punitive damages were due, attorney’s fees were denied. The judge also found that Bar-Til had failed to prove any of its claims against Pull-A-Part.
Bar-Til appealed on the chancellor’s denial of punitive damages, charging that the denial was in error, as was the chancellor’s refusal to hold a separate hearing on punitive damages.
In the COA case of Bar-Til, Inc. vs. Superior Asphalt, Inc. and Pull-A-Part, LLC, decided August 26, 2014, Judge Carlton spelled out the parameters for chancery judges considering whether to award punitive damages:
¶14. Our caselaw provides that “[t]he award of punitive damages, along with the amount of such, are within the discretion of the trier of fact.” Hurst v. Sw. Miss. Legal Servs. Corp., 708 So. 2d 1347, 1350 (¶6) (Miss. 1998) (citation omitted). In contract cases, “[p]unitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton[,] or reckless disregard for the safety of others, or committed actual fraud.” Miss. Code. Ann. § 11-1-65(1)(a) (Supp. 2013). In determining the propriety of punitive damages, a chancellor “decides whether, under the totality of the circumstances and viewing the defendant’s conduct in the aggregate, a reasonable, hypothetical trier of fact could find either malice or gross neglect/reckless disregard.” Ciba-Geigy Corp. v. Murphree, 653 So. 2d 857, 863 (Miss. 1994) (citations omitted).
* * *
¶19. We now turn to a review of the statutory law and caselaw applicable to punitive damages. In discussing whether an award of punitive damages is proper, Mississippi Code Annotated section 11-1-65(1)(b)-(c) (Supp. 2013) provides:
In any action in which the claimant seeks an award of punitive damages, the trier of fact shall first determine whether compensatory damages are to be awarded and in what amount, before addressing any issues related to punitive damages.
If, but only if, an award of compensatory damages has been made against a party, the court shall promptly commence an evidentiary hearing to determine whether punitive damages may be considered by the same trier of fact.
¶20. The Mississippi Supreme Court has also provided the following guidance:
Mississippi law does not favor punitive damages; they are considered an extraordinary remedy and are allowed with caution and within narrow limits. Punitive damages should be awarded in addition to actual or compensatory damages where the violation of a right or the actual damages sustained, import insult, fraud, or oppression and not merely injuries, but injuries inflicted in the spirit of wanton disregard for the rights of others. In other words, there must be some element of aggression or some coloring of insult, malice[,] or gross negligence, evincing ruthless disregard for the rights of others, so as to take the case out of the ordinary rule.
. . . This Court has held that punitive damages are recoverable in breach of contract cases where the breach results from an intentional wrong and when there has been a showing of malice or gross/reckless disregard for the rights of others. Punitive damages are only appropriate in the most egregious cases so as to discourage similar conduct and should only be awarded in cases where the actions are extreme.
Warren v. Derivaux, 996 So. 2d 729, 738 (¶¶27-28) (Miss. 2008) (internal citations and quotation marks omitted).
¶21. As our precedent reflects, some underlying basis, such as actual malice or fraud, must exist for an award of punitive damages before a chancellor will hold a second hearing on the issue of such damages. See Miss. Code. Ann. § 11-1-65(1) (Supp. 2013). In the present case, the chancellor found no merit to Bar-Til’s claim that Superior’s conduct justified an award of punitive damages. As reflected in his order and final judgment, the chancellor found that Bar-Til failed to provide the requisite evidentiary basis to support an award of punitive damages.
That’s a pretty nifty survey of the law of punitive damages, and it illustrates how exceptional and infrequent such awards are.
The COA swept aside Bar-Til’s claim about the failure to hold a separate hearing based on the chancellor’s conclusion that punitive damages were not warranted.
When Should a Temporary Administrator be Appointed?
September 17, 2014 § 2 Comments
MCA 91-7-53 allows the court in a will contest, on filing of a petition by an interested person, to appoint a temporary administrator if necessary to protect the rights of the parties.
In the case of Parker v. Benoist, decided August 28, 2014, the MSSC was confronted with the question whether the chancellor should have appointed a temporary administrator in a will contest. We talked about this case previously in connection with in terrorem clauses.
Bronwyn Parker filed a contest in connection with the will of her father, B.D. Benoist. She also filed a motion to remove her brother, William, from his position as executor, claiming that he had appropriated most of B.D.’s assets for himself through undue influence before B.D.’s death, and that he had unduly influenced his father in the making of the will being contested. She contended that a previous will, executed in 1998, was her father’s true, valid will. Because William was defending the will from which he benefited, and which Bronwyn argued should be set aside, William should be removed as fiduciary.
The chancellor overruled Bronwyn’s motion, finding that there were factual issues which were “strongly disputed between the parties,” and that “[t]here [wa]s no uncontested evidence for the Court to remove William D. Benoist as the Executor of the Last Will and Testament of Billy Dean ‘B.D.’ Benoist.”
Bronwyn appealed, charging that it was error for the trial judge to refuse to remove William.
The MSSC affirmed on the point. Justice Kitchens wrote for the court:
¶26. “[W]henever a last will and testament shall be contested, the chancery court or chancellor in vacation, on petition of any interested person, may appoint a temporary administrator if it shall appear necessary for the protection of the rights of the parties. . . .” Miss. Code Ann. § 91-7-53 (Rev. 2013). Chancellors have wide discretion in appointing a new executor in a will contest, and this Court “should not reverse his action unless there is clear evidence of abuse of that discretion.” Sandifer v. Sandifer, 237 Miss. 464, 469, 115 So.2d 46, 48 (1959). On appeal, Bronwyn essentially reiterates the facts that she believes necessitated a finding by the chancellor that a new executor should be appointed–substantial gifts from B.D. to William before B.D.’s death and William’s mismanagement and depletion of estate assets after B.D.’s death. She argues that, because the jury found that William was in a confidential relationship with B.D., there was a presumption of undue influence.
¶27. We find that the chancellor did not abuse his discretion in denying Bronwyn’s petition to remove William as executor. The chancellor considered all of the arguments Bronwyn has made on appeal and determined that the circumstances did not warrant the appointment of a new executor. We cannot say the chancellor was manifestly wrong or that he abused his discretion. We are slightly troubled, however, by the wording of the chancellor’s order denying Bronwyn’s petition. The chancellor stated that there was no “uncontested evidence” that would justify removing William as the executor. It is not required that there be uncontested evidence to justify the removal of an executor. All that is required is that the chancellor determine, in his or her discretion, that it is necessary to remove the current executor to protect the rights of the parties to the will contest. See Miss. Code Ann. § 91-7-53 (Rev. 2013). “Nowhere does the statute say that before he may appoint a temporary administrator he must find that the executor named in the will is disqualified or has been guilty of misconduct in office.” Sandifer, 115 So. 2d at 47-48. We clarify that chancellors enjoy wide discretion in granting or denying requests to remove an executor, and that a party is not required to present “uncontested evidence” to succeed in such a petition. Bronwyn’s claim of error on this issue, however, is without merit.
To put it in simpler terms: even though the chancellor followed the wrong road map, he arrived at the right destination, so no reversal.
What jumps out from this case is that it is not enough for the executor and the contestant to be pitted against one another in the litigation. Nor is it enough that the executor have a stake in the outcome. You have to convince the chancellor that that removal is necessary to protect the interests of the parties to the litigation. Even then, it is within the chancellor’s discretion, and to reverse his decision on appeal, you must convince the appellate court that he was manifestly wrong or abused his discretion.
The Better Chancery Practice Blog 