Courthouses of Mississippi
May 29, 2015 § 1 Comment
Simpson – Kathy Wilkinson
Yalobusha at Water Valley – LP
Hinds Chancery at Jackson – LP
Lamar – Kathy Wilkinson
Smith Chancery – LP
Greene – Kathy Wilkinson
Jackson – Kathy Wilkinson
Pearl River – Barbie Parham
Neshoba – LP
Status of the Courthouses Project
May 28, 2015 § 5 Comments
We are moving along in our quest to publish photos of all the courthouses and chancery buildings in the State of Mississippi. So far we’ve published 48 courthouses and a few separate chancery buildings. That means we’re about half-way to being done.
Here are the courthouses that have not yet been published, and for which I do not have a photo in stock:
NOTE: Updated through June 12, 2015 …
Bolivar at Rosedale, Clay, Copiah, Franklin, Jefferson, Lawrence, Lee, Lincoln, Marshall, Oktibbeha, Panola at Sardis, Pike, Pontotoc, Prentiss, Sharkey, Tate, Tishomingo, Walthall, Warren, Washington, Wilkinson, Yazoo.
You can add to the collection next time you’re around your friendly, neighborhood courthouse. Simply snap a photo with your smart phone and email it to me. The instructions are at this link.
Reprise: Avoiding an Expensive Error
May 27, 2015 § Leave a comment
Reprise replays posts from the past that you may find useful today.
AVOIDING AN EXPENSIVE ERROR
October 12, 2010 § Leave a comment
Imagine having this nightmare:
You represent the husband. He has $376,000 in his securities account. You negotiate a property settlement agreement by which the wife will receive $203,200 from the account, and he will own the remaining $172,800. Couldn’t be plainer or more clear-cut. A few months drag by before you finally get the QDRO drafted and approved by the court. You ship it off to the plan manager, who calls you and tells you that the account is now only worth $204,000, and what exactly is it that you would like her to do. At this point in the nightmare, you wake up in a cold sweat.
Unfortunately for the parties in In re Dissolution of Marriage of Wood, 35 So.3d 507 (Miss. 2010), the nightmare was all too real. The facts set out above are the facts in their case. The former Mrs. Wood sued to collect her entire amount due under the agreement, and Mr. Wood took the position that sticking with the numbers in the property settlement agreement was an impossibility, and to grant Mrs. Wood her relief would produce an unfair and inequitable result.
Chancellor Dorothy Colomb ruled that the parties had actually negotiated an agreement whereby Mrs. Wood would receive 54% of the account balance at the time of the divorce, and Mr. Wood would receive 46%.
In affirming the chancellor, the Supreme Court addressed valuation dates, impossibility of performance and canons of construction. You can read the decision to get an appreciation for the complexity of legal issues that the draftsmanship created in this case.
The cardinal point for practitioners, however, is best summed up in the court’s own language at page 515:
“As this case illustrates, incorporating an estimate of an asset’s value into a property settlement agreement can cause problems when the parties later try to divide the asset, and the estimate turns out to be incorrect or inaccurate. Therefore, we make the following recommendations for the benefit of the bar. Where the value of an asset must be estimated because of the inherently indefinite or fluctuating nature of the asset itself, we recommend the use of percentages when setting forth the asset’s intended distribution in a property settlement agreement. Where the value of an asset remains sufficiently concrete or static, however, we recommend the use of specific dollar amounts.”
Mrs. Wood expected to get $203,000, and that’s what she negotiated for. Instead, she got $110,160, or $93,000 less than what she expected. The lesson is to think about what you’re doing and what could or might go wrong, and how you can guard against it.
The MRCP 60(b) Appeal
May 26, 2015 § Leave a comment
The COA’s decision in Crossley, et al. v. Moore, et al., decided April 21, 2015, addresses an important distinction between an appeal on the merits and what is reviewable in an appeal from a court’s MRCP 60(b) ruling.
In that case, the chancellor had stricken Crossley’s (the collective name for the defendants that this post will apply) answer and counterclaim due to a prolonged and obstinate refusal to cooperate and obey court orders for discovery. The judge entered a default judgment against the defendants, and set a hearing on damages. At that hearing, he heard testimony and entered a judgment against the defendants for more than $760,000 in damages, which included $26,000 in attorney’s fees. Crossley did not appeal.
Five months after entry of the judgment, Crossley filed a motion pursuant to MRCP 60(b) to set aside the judgments, claiming (1) that they never received notice of the hearing on sanctions for discovery violations, and (2) that they never received notice of hearing on the damages issue. At hearing, however, the defendants admitted that they did receive notice of the sanctions hearing, but insisted that they had not as to the damages hearing. The chancellor overruled the motion as to the sanctions hearing, leaving the default judgment intact, but granted a rehearing on the issue of damages.
Crossley appealed, arguing that the trial judge was in error in dismissing their answer and counterclaim based on sanctions.
The COA affirmed. Judge Maxwell wrote for the majority:
¶13. We begin with the discovery sanction. And the first order of business is to determine just exactly what Crossley and Templet are appealing. From their brief, they seem to argue they are appealing the merits of the August 2009 decision to strike their answer. But that decision led to a default judgment—a judgment that became final in March 2010. And this final judgment was not appealed. Nor was this judgment set aside. While the chancellor did order a new hearing on damages, Crossley and Templet acknowledge in their brief that the chancellor “refused to set aside the judgment itself.”
¶14. With the underlying default judgment left undisturbed, what Crossley and Templet are in fact appealing is the denial of their Rule 60(b) motion to set aside. See Blackmon v. W.S. Badcock Corp., Inc., 342 So. 2d 367, 371 (Ala. Civ. App. 1977) (holding that a Rule 60(b) ruling to vacate a damages award and conduct a new hearing did not confer on the movant the right to address the merits of the underlying default judgment). As we recently reiterated, this court’s “review of the denial of a Rule 60(b) motion is extremely limited.” Davis v. Vance, 138 So. 3d 961, 963 (¶1) (Miss. Ct. App. 2014). We are “not allowed to inquire into the actual merits of the underlying judgment.” Id. This is because Rule 60(b) is not a vehicle to relitigate the merits of a trial judge’s decision. Woods v. Victory Mktg., LLC, 111 So. 3d 1234, 1237 (¶13) (Miss. Ct. App. 2013). So even if the chancellor had done something that may have been reversible error had Crossley and Templet timely appealed, the fact remains that they did not appeal. And Rule 60(b) cannot be used to get around this. See Williams v. New Orleans Pub. Serv., Inc., 728 F.2d 730, 736 (5th Cir. 1984).
¶15. This court reviews the denial of their Rule 60(b) motion for abuse of discretion. Stringfellow v. Stringfellow, 451 So. 2d 219, 221 (Miss. 1984).
That’s a critical point to grasp. You can not use R60(b) as a vehicle to open the merits of the underlying judgment to appellate review. Once the deadline for appeal has past, the judgment itself is final and not reviewable on the merits. The only issue on appeal is whether the trial judge abused his or her discretion in ruling on the R60(b) motion. In this particular case, the COA ruled that the chancellor had not abused his discretion.
Another take-away from this case is that continued obstinate evasion of discovery and failure to abide by court orders for discovery have painful consequences that can radically alter the landscape of a lawsuit.
Courthouses of Mississippi
May 22, 2015 § 1 Comment
Calhoun – LP
Harrison at Biloxi – Kathy Wilkinson
Choctaw – LP
Choctaw detail – LP
Rankin Chancery – LP
Rankin – LP
Jasper at Bay Springs – LP
Tallahatchie at Charleston – LP
Lafayette Chancery – LP
Webster two years after the fire – LP
Moving Beyond Thought
May 21, 2015 § 6 Comments
The law is a rational convention. No wonder, then, that it attracts thinkers — those among us who rely on thought and logic as our primary means of understanding and relating to the world in which we live.
In law school, we are taught to use thought and logic in our approach to the law.
But, it seems to me, thought and logic are only two of many approaches to grasping reality — approaches, not reality itself — and because reality has so many variables and is so complex, limiting ourselves to those approaches alone may not produce a complete comprehension of the truth. And isn’t grasping the truth what the law should be about?
When I ran across some passages from Eckhart Tolle’s Stillness Speaks, I found them enlightening and helpful in understanding the distinction between what we think we know, and what is real. I hope you find these passages of some use:
Most people spend their entire life imprisoned within the confines of their own thoughts. They never go beyond a narrow, mind-made, personalized sense of self that is conditioned by the past.
In you, as in each human being, there is a dimension of consciousness far deeper than thought. It is the very essence of who you are. We may call it presence, awareness, the unconditioned consciousness. In the ancient teachings, it is the Christ within, or your Buddha nature.
Finding that dimension frees you and the world from the suffering you inflict on yourself and others when the mind-made “little me” is all you know and runs your life. Love, joy, creative expansion, and lasting inner peace cannot come into your life except through that unconditioned dimension of consciousness.
If you can recognize, even occasionally, the thoughts that go through your mind as simply thoughts, if you can witness your own mental-emotional reactive patterns as they happen, then that dimension is already emerging in you as the awareness in which thoughts and emotions happen – the timeless inner space in which the content of your life unfolds.
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The stream of thinking has enormous momentum that can easily drag you along with it. Every thought pretends that it matters so much. It wants to draw your attention in completely.
Here is a new spiritual practice for you: don’t take your thoughts too seriously.
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How easy it is for people to become trapped in their conceptual prisons.
The human mind, in its desire to know, understand, and control, mistakes its opinions and viewpoints for the truth. It says: This is how it is. You have to be larger than thought to realize that however you interpret “your life” or someone else’s life or behavior, however you judge any situation, it is no more than a viewpoint, one of many possible perspectives. It is no more than a bundle of thoughts. But reality is one unified whole, in which all things are interwoven, where nothing exists in and by itself. Thinking fragments reality – it cuts it up into conceptual bits and pieces.
The thinking mind is a useful and powerful tool, but it is also very limiting when it takes over your life completely, when you don’t realize that it is only a small aspect of the consciousness that you are.
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Wisdom is not a product of thought. The deep knowing that is wisdom arises through the simple act of giving someone or something your full attention. Attention is primordial intelligence, consciousness itself. It dissolves the barriers created by conceptual thought, and with this comes the recognition that nothing exists in and by itself. It joins the perceiver and the perceived in a unifying field of awareness. It is the healer of separation.
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When you no longer believe everything you think, you step out of thought and see clearly that the thinker is not who you are.
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Prejudice of any kind implies that you are identified with the thinking mind. It means that you don’t see the other human being anymore, but only your concept of that human being. To reduce the aliveness of that other human being to a concept is already a form of violence.
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Become at ease with “not knowing.” This takes you beyond the mind because the mind is always trying to conclude and interpret. It is afraid of not knowing. So, when you can be at ease with not knowing, you have already gone beyond the mind. A deeper knowing that is nonconceptual then arises out of that state.
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In don’t know about you, but I find it liberating to understand that the rational approach that is so necessary to the law is not the only way to interact with the world. Indeed, it is not — and should not be — the only way to interact with the law. There are deeper ways of understanding, if we will only use them.
And I know that some pan Tolle for his eclecticism. I agree that he’s no Nietzsche, but we shouldn’t snub a valuable message because the messenger isn’t sophisticated enough.
I found these passages in the May issue of The Sun Magazine, which I commend to any of you who are seeking a deeper understanding of human nature, and not merely confirmation of your existing notions.
Some Useful Information on Civil Contempt
May 20, 2015 § Leave a comment
From Newell v. Hinton, 556 So.2d 1037, 1044 (Miss. 1990):
If the purpose of the proceedings is to coerce action or non-action by a party, the order of contempt is characterized as civil. This type contempt proceeding is ordinarily instituted by one of the parties to the litigation who seeks to coerce another party to perform or cease performing an act. The order of contempt is entered by the court for the private benefit of the offended party. Such orders, although imposing a jail sentence, classically provide for termination of the contemnor’s sentence upon purging himself of the contempt. The sentence is usually indefinite and not for fixed term. Consequently, it is said that the contemnor ‘carries the key to his cell in his own pocket.’ [citations omitted]
Jones v. Hargrove, 516 So.2d 1354, 1357 (Miss.1987). See also, Hinds County Bd. of Supervisors v. Common Cause, 551 So.2d 107, 120-21 (Miss.1989); Smith [v. Smith], 545 So.2d at 727 [(Miss. 1989)].
Even when there has been established a prima facie case of contempt, the defendant may avoid judgment of contempt by establishing that he is without present ability to discharge his obligation. Smith, supra at 727; see also, Prestwood v. Hambrick, 308 So.2d 82, 85 (Miss.1975). If the contemnor raises this as a defense, he has the burden of proving his inability to pay, and such showing must be made with particularity and not in general terms. Clements v. Young, 481 So.2d 263, 271 (Miss.1985) cited in Jones, 516 So.2d at 1357.
There are other defenses as well. For example, the defendant may show that he was not guilty of wilful or deliberate violation of the prior judgment or a decree. Dunaway v. Busbin, 498 So.2d 1218, 1222 (Miss.1986) (emphasis added); Hooker v. Hooker, 205 So.2d 276, 278 (Miss.1967). The burden of the defendant in raising this defense, however, is not nearly as great as the defendant who claims he is without ability to pay. Consequently, it is appropriate that this defense be viewed against the “extremely lenient view this Court and the courts of this state have taken of contempt proceedings in general.” Smith, 545 So.2d at 727. Furthermore, a contemnor also has available to him the traditional notion of “clean hands” as a defense. Vockroth v. Vockroth, 200 So.2d 459, 463 (Miss.1967) cited in Smith, supra. Vagueness or the lack of specificity of the decree gives the contemnor another avenue for defense as well. Id.
Even if the defendant cannot successfully raise a defense, the court’s power to commit a person to jail until he complies with the terms of a decree depends upon his present ability to pay. Wilborn v. Wilborn, 258 So.2d 804, 805 (Miss.1972) quoted in Jones, 516 So.2d at 1357. If the person has already been committed to jail, he is entitled to be discharged on proof of inability to pay. Id. at 1358. This contrasts with criminal contempt in that the purpose of incarceration is punitive and the contemnor is jailed regardless of an offer of payment or a present inability to make payment. Id.; see also 27C C.J.S. Divorce § 715 (1986).
In the case sub judice, although the chancellor may have been correct in granting summary judgment on the issue of contempt, he should have given Newell a meaningful opportunity to present her defense as to payment of the attorneys’ fees. There should have been a careful examination of her present ability to pay. It does not matter that the chancellor suspended his order of incarceration for sixty days giving Newell the time to satisfy the judgment. If she had failed to pay the amount within this time period, according to the chancellor, she would go to jail. And, she would remain in jail until she purged herself of the contempt. This was wrong.
This Court is fully aware of the constitutional problems implicated in the chancellor’s ruling. If for some reason Newell is unable to come up with the amount owed during her life time would that also mean imprisonment for life? This may well be the case. Ex Parte Raymer, 644 S.W.2d 889, 890 (Tex.App.1982); Jones, 516 So.2d at 1358.
In the case of Brown v. Brown, (1933), 205 Ind. 664, 187 N.E. 836 [the Supreme Court of Indiana] stated that when one has been imprisoned for failure to comply with an order … and where [the] defendant is able to show that he has not the actual ability to pay for any one of a number of valid reasons, then [the] defendant is entitled to be discharged. The Court went on to hold that a defendant cannot be imprisoned indefinitely because of failure to pay support money where it is shown that he does not have an ability to make such payments and cites such a practice as being unconstitutional on the grounds of cruel and unusual punishment.
Smith v. Indiana State Board of Health, 158 Ind.App. 445, 303 N.E.2d 50, 60 (1973) quoted in Jones, 516 So.2d at 1358. “The result of [Newell’s] inability to pay may well be an unfortunate one, and this Court appreciates the frustration possibly experienced by the trial judge, but the fact remains that one cannot be imprisoned where the failure to pay is due to an inability to comply.” Jones, 516 So.2d at 1358; see also, Murphy v. Murphy, 447 So.2d 798, 800 (Ala.Civ.App.1984).
Therefore, we must remand this case so that the chancellor can determine if Newell has the ability to reimburse Hinton as well as pay his attorneys fees in defending this case.
Who Gets to Decide Fair Market Value?
May 19, 2015 § 2 Comments
Gary Marter and his wife Celeste were divorced, and Gary appealed complaining that the chancellor erred when he assigned a value of $110,000 to 120 acres of jointly-owned real property. The COA found that the chancellor had not adequately explained how he arrived at the figure, and so remanded the case in Marter v. Marter, 95 So.3d 733 (Miss. App. 2012).
On remand the chancellor conducted a hearing, and both sides had the opportunity to present evidence. The court heard from two appraisers hired by Gary, and from both of the parties. The chancellor then rendered an opinion concluding that the property was worth $110,000. Gary appealed again.
In Marter v. Marter, handed down by the COA May 12, 2015, the COA, by Judge Fair, affirmed. The main issue I want to address is what the chancellor is to do when confronted by conflicting and inconclusive proof of fair market value. Here’s what Judge Lee said in his opinion:
¶12. Gary first argues that the chancellor erred in valuing the 120 acres at $110,000 because neither party placed that specific value on the property . But he presents no authority supporting this proposition. Instead, the chancellor is the ultimate finder of fact, and as the finder of fact he is entitled to accept or reject the testimony of witnesses, in whole or in part, and to give the various testimony the weight it deserves; the chancellor’s findings can be disturbed only if clearly wrong or derived from the application of an erroneous legal standard. Mize v. Westbrook Constr. Co. of Oxford LLC, 146 So. 3d 344, 348 (¶6) (Miss. 2014). Our courts have repeatedly recognized that the chancellor is entitled to make an independent judgment of a property’s value, especially where the estimates of the parties vary widely. In McKnight v. McKnight, 951 So. 2d 594, 596 (¶¶7, 10) (Miss. Ct. App. 2007), this Court affirmed a valuation where the chancellor had apparently just averaged the two proposed values, because the evidence in the record supported the conclusion that the low estimates were too low and the high estimates were too high. We reached the same result in Williams v. Williams, 129 So. 3d 233, 241 (¶32) (Miss. Ct. App. 2013). “If the court finds all of the competing values to be inaccurate, it may make its own independent valuation.” Brett R. Turner, 2 Equitable Distribution of Property § 7:12 (3d ed. 2005).
¶13. Gary next contends that the chancellor erred in considering the tax assessor’s appraisal of the property, which was noted to be approximately $49,000. The chancellor took notice of the tax appraiser’s valuation on his own initiative, but without objection from either party. Gary cites to Watson v. Watson, 882 So. 2d 95, 106-07 (¶¶55-57) (Miss. 2004), where the supreme court reversed a valuation determined by simply adding 15% to the tax roll assessment. The chancellor derived this formula from his own experience, and he applied it despite all the other evidence in the record supporting a higher value. But, in today’s case, the chancellor did not apply a rigid formula; he merely noted that he had found the value of the 120 acres to be significantly in excess of the tax assessment. The chancellor’s observation does not demonstrate a defect in his reasoning.
¶14. Finally, Gary argues that the chancellor committed reversible error when he failed to consider the value of the timber separately from the land. In the judgment on remand, the chancellor expressly noted that there was timber on the property, but he treated it as a fixture of the land and did not assign it a separate value. Gary offers no authority requiring land and timber to be valued separately; he only supports this claim by saying that “[Celeste] has never presented any evidence to contradict [his] contention.” Gary suggests that the chancellor could not disregard the testimony of Gary’s timber appraiser, but that appraisal was done years after the divorce, and there was greatly varying testimony as to the value of the timber. Celeste and the tax assessor valued the land, including the trees, at approximately $50,000. Gary points out that both of these valuations have their flaws, which the chancellor was very much aware of. But Gary himself originally valued the land at $55,000 plus the unspecified value of 28 acres of trees. The timber appraisal he now relies upon was conducted several years after the divorce and valued 108 acres of timber. “Expert opinions are not obligatory or binding on triers of fact but are advisory in nature.” Downs v. Ackerman, 115 So. 3d 785, 791 (¶18) (Miss. 2013). In situations like this, “where there is reason to doubt the trustworthiness of the appraisal,” the “chancellor is justified in rejecting the values an appraiser places.” A & L Inc. v. Grantham, 747 So. 2d 832, 842 (¶44) (Miss. 1999).
* * *
¶15. The chancellor has twice found himself in circumstances such as those described by this Court in the oft-cited case of Dunaway v. Dunaway, 749 So. 2d 1112, 1121 (¶28) (Miss. Ct. App. 1999), in which this Court said:
It is our conclusion that the chancellor, faced with proof from both parties that was something less than ideal, made valuation judgments that find some evidentiary support in the record. To the extent that the evidence on which the chancellor based his opinion was less informative than it could have been, we lay that at the feet of the litigants and not the chancellor.
¶16. We conclude that, as in Dunaway, the chancellor did the best he could with the evidence presented to him. Id. at 118 (¶14). As this Court will not disturb a chancellor’s findings unless manifestly wrong or clearly erroneous, our standard of review requires that the judgment be affirmed. Johnson v. Johnson, 650 So. 2d 1281, 1285 (Miss. 1994) (citation omitted).
There’s really nothing more to add to that.
A Willful, Wanton or Reckless Disregard
May 18, 2015 § 2 Comments
It doesn’t come up very often in chancery court, but from time to time a party will ask a chancellor to impose punitive damages.
Not surprisingly, the latest reported case involved parties contending over an easement. I think most experienced chancery practitioners would nod in agreement that easement and property line disputes can quite often eclipse even bitter divorces for malicious, vicious, destructive behavior.
In the case of Muirhead v. Cogan, decided March 10, 2015, siblings Steve Muirhead and Lula Cogan, along with some other siblings, inherited some land near Vicksburg. A private easement, called “Muirhead Road,” gave both Steve and Lula access to their portions of the property. Steve’s son Ronnie built a home near Steve’s, and after he began using the road also, Steve augmented the hardpan dirt surface with gravel.
The gravel washed out in heavy rains, and Steve wanted Lula to contribute $3,000 to help maintain the easement. Lula, however, was not convinced. She had the road inspected by Pete B. (described in the COA opinion as “a construction worker who owns a construction business”), who opined that it did not need any maintenance.
That’s where things took a detour:
¶6. In 2006, Ronnie built a road that intersected Muirhead Road. After the new road was built, both Steve and Ronnie abandoned the easement and began using the newly built road to access their houses. Ronnie also installed a culvert near the intersection. The culvert directed water away from the newly built road and onto the easement. Also in 2006, after the new road was built, most of the gravel was mysteriously removed from the easement. At some point after the gravel was removed, dirt from the center of the easement was pushed up onto the sides of the easement. After that, a large v-shaped ditch was dug across the easement, preventing vehicular use of the easement.
¶7. In 2007, Lula hired Pete to perform conservation work on her property. To access Lula’s property, Pete and his employees had to use the easement. To make the easement usable, Pete instructed one of his employees, Marcus Clark, to fill the v-shaped ditch with dirt. Marcus complied. However, shortly thereafter, a trench, which was approximately four feet deep and five feet wide, was dug in the center of the easement. As a result, water settled in the center of the easement, causing severe erosion. By 2008, the easement had almost completely eroded.
Lula sued, and one of her claims was for punitive damages. The COA opinion is enlightening about what law the chancellor is required to apply in making a determination whether to assess punitive damages. Judge Irving, for the court:
¶25. Steve argues that the chancery court erred by awarding punitive damages after: (1) applying an improper legal standard and (2) failing to hold an evidentiary hearing on the issue of punitive damages. Second, Steve argues that the chancery court erred by finding that the erroneous award of punitive damages was a proper basis for the award of attorney’s fees. Finally, Steve argues that the chancery court erred by finding James’s testimony credible because James relied on notes prepared by Lula. On the other hand, Lula asserts that a careful reading of the final judgment reveals that the chancery court utilized the clear-and convincing standard in finding that Steve’s actions were malicious.
¶26. In [Jones v. Music, 2 F.Supp.2d 880 (SD Miss. 1988)], which the chancery court relied on in assessing punitive damages, the United States District Court for the Southern District of Mississippi indicated that the standard to be applied during a court’s assessment of punitive damages is a preponderance-of-the-evidence standard. Jones, 2 F. Supp. 2d at 884 (finding that “[p]unitive damages may be awarded only when the trier of fact is persuaded by a preponderance of the evidence that defendant’s actions were wanton, malicious[,] or fraudulent in nature.”) Likewise, in its final judgment, the chancery court found that “[p]unitive damages may be awarded only when the trier of fact is persuaded by a preponderance of the evidence that [the] defendant’s actions were wanton, malicious[,] or fraudulent in nature.” The chancery court further found
that [Steve’s] conduct was malicious, intentional[,] and outrageous. The court finds that removing the gravel that he bought and put on the easement, and cutting a vee down the easement, was spiteful. However, after the easement was made usable following these acts, regardless of who deepened the ditches (which the court believes was an act of [Steve]), digging the trench down the middle of the easement under the guise of saving his fence[] was clearly malicious, intentional[,] and outrageous. [Steve], as a farmer[] who retired from the construction business[,] knew that this action would destroy the easement (and having destroyed the easement, [Steve] now seeks to abandon it). He knew that he could take other, less invasive, remedial actions. He never discussed the fence situation with [Lula] to ascertain the best remedial action; therefore, he was not interested in finding the best solution or in saving the easement. Obviously, he wanted to prevent [Lula] from using the easement regardless of her right to use the easement. Through this aggressive action, which he even admits was wrong, [Steve] showed an intentional[,] wanton disregard for the rights of [Lula], and Lula is entitled to punitive damages in the amount of $10,000.
¶27. We find that the standard enunciated in Jones is in clear conflict with Mississippi statutory law. Mississippi Code Annotated section 11-1-65 (Rev. 2014) provides, in relevant part, as follows:
(1) In any action in which punitive damages are sought:
(a) Punitive 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.
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(c) 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.
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(f)(i) Before entering judgment for an award of punitive damages the trial court shall ascertain that the award is reasonable in its amount and rationally related to the purpose to punish what occurred giving rise to the award and to deter its repetition by the defendant and others.
(ii) In determining whether the award is excessive, the court shall take into consideration the following factors:
1. Whether there is a reasonable relationship between the punitive[-]damage award and the harm likely to result from the defendant’s conduct as well as the harm that actually occurred;
2. The degree of reprehensibility of the defendant’s conduct, the duration of that conduct, the defendant’s awareness, any concealment, and the existence and frequency of similar past conduct;
3. The financial condition and net worth of the defendant; and
4. In mitigation, the imposition of criminal sanctions on the defendant for its conduct and the existence of other civil awards against the defendant for the same conduct.
¶28. Despite Lula’s argument to the contrary, it is unclear whether the chancery court required Lula to prove by clear and convincing evidence that Steve’s actions were malicious. However, the chancery court’s reliance on Jones suggests that the court applied the lesser standard. Additionally, the record does not reveal that the chancery court conducted an evidentiary hearing on the issue of punitive damages, or that the chancery court ascertained that the punitive-damages award was reasonable in its amount and rationally related to the purpose of deterrence. Furthermore, the chancery court failed to consider the factors enumerated in section 11-1-65(f)(ii). Therefore, we find that the chancery court erred by awarding punitive damages in this case. Consequently, we reverse and remand for an evidentiary hearing wherein the chancery court must determine by clear and convincing evidence whether Steve’s actions were willful, wanton, and malicious. If, on remand, the chancery court finds that punitive damages are warranted, then the chancery court must consider the factors enumerated in section 11-1-65(f)(ii) in determining the amount of punitive damages to be awarded.
The court went on to reverse the award of attorney’s fees in the case because the judge had not enunciated any basis other than punitive damages for the attorney fee award.
The Better Chancery Practice Blog 