November 14, 2014 § 2 Comments
Certified yesterday. D. Neil Harris (incumbent) defeated Paula S. Yancey by 18 votes.
November 13, 2014 § Leave a comment
We talked Monday about what can happen when one knowingly files a false pleading.
Aside from the fact that it’s patently unethical to do so, there is a specific requirement in the MRCP about a lawyer’s representations to the court via her pleadings. It’s in R11(a), which states in part:
Every pleading or motion of a party represented by an attorney shall be signed by at least one attorney of record … The signature of an attorney shall constitute 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 …
That’s pretty straightforward. You have to have read the pleading, and if you fail to do that, you are still responsible for its contents since you certified to the court that you are aware of what is in it. You have to do more than take your client’s word for it that there is good ground to support the claims, because you are certifying to the court that you have made sufficient inquiry to determine that it is, indeed, a meritorious claim. And you can never file an unmeritorious pleading just to hold things up while your client makes good his escape or otherwise arranges his affairs to his advantage.
If the court finds that you have not signed pleadings or signed them with intent to defeat the purpose of the rule, you are subject to the sanctions in R11(b), including discipline, reasonable expenses and attorney’s fees. The sanctions extend both to the client and to the lawyer.
Carelessness is no excuse. The rule requires that you put some thought and attention into the pleadings that you file.
November 12, 2014 § 1 Comment
November 11, 2014 § Leave a comment
November 10, 2014 § 3 Comments
Louis Pannagl had made a will in 2001. In April, 2011, he contacted Kellems, a lawyer, about changes he wanted to be made in his will. He sent Kellems handwritten notes with the changes, including a document that included the language, “The Will of April 23rd 2011 … has been destroyed and March 23, 1993 [sic].” It is undisputed that the notes were in Louis’s handwriting.
Louis died on June 8, 2011, and Louis’s widow, Donis, contacted one of Louis’s lawyers, who sent her the notes described above. Donis gave the notes to her son, David Lambert, Louis’s step-son, who read them and passed them on to Holmes, an attorney he had hired to open Louis’s estate. On August 19, 2011, a sworn petition was filed, with Louis’s will attached, alleging that the original had been lost and that the will had not been destroyed by Louis with intent to revoke it. The handwritten notes were not attached to the petition.
Both of Louis’s biological son, Curt, and daughter, Sammi, filed contests to probate of the will. It was not until around a year after the petition had been filed that they found out, in the course of discovery, about the handwritten notes revoking the prior will(s). Sammi filed for summary judgment and sanctions under MRCP 11 and the Litigation Accountability Act. The chancellor granted summary judgment, but declined to impose sanctions.
Sammi and Curt appealed the denial of sanctions.
In the case of Estate of Pannagl: Pannagl and Spence v. Lambert and Holmes, the COA on November 4, 2014, reversed. Since this case makes some important points about sanctionable behavior and the applicable law, I am quoting at length:
¶7. In this appeal, Curt contends that Lambert’s failure to include the document in this petition constituted fraud; thus, the chancellor erred in failing to award sanctions. Curt argues that Lambert, having read the handwritten document prior to filing his petition, knew the will had been destroyed with an intent to revoke it and, therefore, had no hope of success. According to Curt, the action was frivolous and constituted a fraud on the court because Lambert withheld the document and filed a sworn petition alleging that the original will was lost and not destroyed by Louis with the intent to revoke it.
¶8. Mississippi Rule of Civil Procedure 11(b) states, in pertinent part:
If any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay, the court may order such a party, or his attorney, or both, to pay to the opposing party or parties the reasonable expenses incurred by such other parties and by their attorneys, including reasonable attorneys’ fees.
M.R.C.P. 11(b). The Litigation Accountability Act states, in pertinent part:
Except as otherwise provided in this chapter, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney’s fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification . . . .
Miss. Code Ann. § 11-55-5(1) (Rev. 2012). The phrase “without substantial justification” is defined by the Act as a filing that is “frivolous, groundless in fact or in law, or vexatious, as determined by the court.” Miss. Code Ann. § 11-55-3(a) (Rev. 2012). “The term ‘frivolous’ as used in this section takes the same definition as it does under Rule 11: a claim or defense made ‘without hope of success.’” In re Spencer, 985 So. 2d at 338 (¶26) (quotations omitted). “A plaintiff’s belief alone will not garner a ‘hope of success’ where a claim has no basis in fact.” Foster v. Ross, 804 So. 2d 1018, 1024 (¶21) (Miss. 2002) (quotations omitted). Whether a party has any “hope of success” is an objective standard to be analyzed from the vantage point of a reasonable plaintiff at the time the complaint was filed. Tricon Metals & Servs. Inc. v. Topp, 537 So. 2d 1331, 1335 (Miss. 1989).
¶9. The chancellor found the following: (1) it was unclear whether the will had been revoked or if Louis merely contemplated doing so; (2) more information was required to determine Louis’s intent; (3) the handwritten document was insufficient to put a proponent of a will having minor children as beneficiaries on notice that it had been revoked; (4) the handwritten document was not subscribed, but merely signed at the top, and the various copies of the document contained different-color ink; and (5) tendering a copy of Louis’s will was not so egregious as to warrant the imposition of sanctions against Lambert and Holmes.
¶10. The Mississippi Supreme Court has found that a misrepresentation of pertinent facts to a chancellor, who entered an order based on the misrepresentations, was a violation of the Litigation Accountability Act and Rule 11 of the Mississippi Rules of Civil Procedure and warranted sanctions. In re Estate of Ladner, 909 So. 2d 1051, 1056 (¶17) (Miss. 2004). In that case, an executor and his attorney failed to inform the court of the testator’s brother’s claim to ownership of cattle located on the brother’s land prior to obtaining a court order to seize the cattle. Id. at 1055-56 (¶¶15-16). In addition, this Court has found that a verified creditor’s notice of claim, filed by the counsel of a creditor of potential heirs of a decedent’s estate and containing a misrepresentation of pertinent facts, was frivolous. In re Necaise, 126 So. 3d 49, 57 (¶30) (Miss. App. Ct. 2013). This Court found that the misrepresentation caused the estate to incur unnecessary attorney’s fees in having to respond to those filings and thus warranted sanctions under Rule 11 and the Litigation Accountability Act. Id.
¶11. In this case, Lambert failed to disclose the existence of the handwritten document when he filed his petition. A reasonable person in Lambert’s position, with Lambert’s knowledge, would have no hope of success in rebutting the presumption that Louis’s will had been lost and not destroyed. Lambert admitted that, when he filed his petition, he had received and read the documents attached to Carrigee’s letter, which included the handwritten document. This letter, with attachments, was later given to Holmes prior to filing this action. In that document, Louis listed a myriad of changes he wanted to make to his will. At the bottom of the first column of the two-column document, he wrote: “The will of April 23rd 2001 Brookhaven/Brady Kellems has been destroyed.” The words “and March 23, 1993,” were written in a different-color ink on Kellems’s copy. The document was signed by Louis, and Donis testified that the document was in his handwriting. Lambert searched for a will, but could not find one. The file folder in Louis’s office entitled “will” was empty.
¶12. From this document, it is clear that Louis wanted to make changes to his will and that he intended to revoke all prior wills. Even though Louis signed this document at the top of the page, Donis testified that it was his handwriting. When taken in context, the statement that: “The will of April 23rd 2001 Brookhaven/Brady Kellems has been destroyed,” effectively put Lambert and his attorney on notice that Louis destroyed his will with the intent to revoke it. This is evidenced by Lambert’s attempt to convert the proceedings to that of intestate succession. On the same day that the court ruled on a motion to compel Kellems to give his deposition, and prior to any other depositions being taken, Lambert filed a motion to amend his petition. He sought a declaration that Louis had died intestate and asked the court to appoint Donis the administrator. The handwritten document had not yet come to light, and judging from the timing of the motion’s filing, Holmes knew that once it did, there would be no hope of success in overcoming the presumption. In the hearing on the motion for summary judgment, Holmes admitted that he filed that motion because he did not think he could overcome the presumption that Louis’s will had been lost and not destroyed.
¶13. The chancellor did not consider the fact of nondisclosure to be important when making her decision about whether to award sanctions. But the fact remains that the nondisclosure was a misrepresentation, making the petition to probate the will frivolous in light of the evidence. The chancellor abused her discretion in not considering Lambert’s nondisclosure in determining the frivolity of the action. Curt incurred unnecessary expense in contesting the probate of this will, only to uncover a document that Lambert withheld for almost a year and a half and that would later serve as the basis for summary judgment.
¶14. Finding that the chancellor abused her discretion in deciding not to award sanctions pursuant to Rule 11 and the Litigation Accountability Act, we reverse and remand for a determination of attorney’s fees and costs.
So the shortcoming here was the failure to disclose the handwritten notes. Hindsight, which is always high-def, tells us that the better practice would have been to disclose the notes and leave it up to the chancellor, as finder of fact, to interpret them. By not disclosing the notes, Lambert and counsel gave the reasonable impression that they were trying to hide something to change a possible adverse outcome. That’s always a recipe for sanctions and even discipline.
November 7, 2014 § Leave a comment
November 6, 2014 § 11 Comments
The following is what I have pieced together from news reports. If anyone can add anything, please feel free to comment.
Eighth District (Hancock, Harrison and Stone), Place 2
- C. Stephen Benvenutti
- Jennifer Schloegel (incumbent) W
Eighth District, Place 3
- Ronnie Cochran
- Sanford R. “Sandy” Steckler (Incumbent) W
Eleventh District (Holmes, Leake, Madison and Yazoo)
- Barbara Ann Blunston
- Robert G. Clark, III W
To fill the seat being vacated by Chancellor Janace Harvey-Goree
Thirteenth District (Covington, Jefferson Davis, Lawrence, Simpson and Smith), Place 1
- J. Larry Buffington
- David Shoemake (Incumbent) W
Thirteenth District, Place 2
- Mary K. Burnham
- Deborah Kennedy
- Gerald M. Martin
To fill the seat being vacated by Chancellor Joe Dale Walker
Sixteenth District (George, Greene and Jackson), Place 1
- D. Neil Harris (incumbent)
- Paula S. Yancey
Last report was that the unofficial total had Harris ahead by 38 votes.
Sixteenth District, Place 3
- Michael L. Fondren W
- Gary L. Roberts
Incumbent G. Charles “Chuck” Bordis withdrew from the race
Eighteenth District (Benton, Calhoun, Lafayette, Marshall and Tippah), Place 1
- Glenn Alderson (incumbent) W
- Carnelia Pettis Fondren
- Tina Duggard Scott
Eighteenth District, Place 2
- Helen Kennedy Robinson
- Robert Q. Whitwell (incumbent) W
November 5, 2014 § 1 Comment
Every district I know of requires publication for unknown heirs in administrations (intestate estates). There are times, also, when you need to establish who the heirs are for other reasons.
In those type cases you have to publish process to the unknown heirs. I have seen lawyers attempt it in a variety of ways, but there is only one right way to do it.
It’s spelled out in MRCP 4(c)(4)(D), which provides, in pertinent part:
When unknown heirs are made parties defendant in any proceeding in chancery court, upon affidavit that the names of such heirs are unknown, the plaintiff may have publication of summons for them, and such proceedings shall be thereupon in all respects as in the case of a nonresident defendant. …
R81(d)(1) requires 30 days’ notice. R81(d)(5) requires that the defendant(s) be summoned to appear and defend at a specific time and place. R81(d)(4) provides that no answer is required. R81(d)(3) states that the matter shall not be taken as confessed.
So here it is, step by step:
1. Prepare a petition stating the names of the known heirs, and stating that there are no other known heirs. If the petition is sworn, you can skip step 2.
2. Have the administrator or some other person(s) with knowledge state in an affidavit that the only known heirs are named in the petition, and that there are no other known heirs. File the affidavit.
3. Prepare a summons to the unknown heirs returnable to a day and time certain more than thirty days from the date of first publication.
4. Publish the summons in a newspaper published in the county of the action or, if there is no newspaper published there, post it on the door of the county courthouse and ” … published as above provided in a newspaper in an adjoining county or at the seat of government of the state.” The publication is once a week for three consecutive weeks (R4(c)(4)(B)).
5. On the return day, appear at the appointed time and have the case called. You can proceed in the manner that the chancellor directs. Since the rule provides that the matter may not be taken as confessed, most chancellors require testimony, although some will rely on the affidavit, per R78.
6. If the case can not be heard on the return day, for whatever reason, have an order entered on that same day, continuing the case to a future date (R81(d)(5)). And every subsequent continuance order must be signed by the chancellor on the day to which the case was continued. If you fail to do this, you will have to reissue process.
November 4, 2014 § Leave a comment