R.I.P. Chancellor Ed Prisock
July 31, 2015 § 1 Comment
Retired Chancellor Ed Prisock of Louisville died Thursday, July 30, 2015.
The Excusable Neglect Trap
July 30, 2015 § 2 Comments
I think it’s fair to say that it’s unwise for an attorney to place much reliance on the concept of excusable neglect to extract himself or herself from the trouble one encounters due to failure to act.
MRAP 4 provides that notice of an appeal must be filed within thirty days of entry of the order or judgment appealed from. The trial judge, however, may extend that time, even ex parte, for good cause if the motion is filed within the 30-day time limit. MRAP 4(a) also provides that “Notice of any such motion which is filed after expiration of the prescribed time shall be given to other parties, and the motion shall only be granted upon a showing of excusable neglect.” [Emphasis added]
That rule came into play in a recent COA case.
An emotional family land dispute that had taken years to litigate finally resulted in a judgment against David and Jené Nunnery on June 20, 2012. Their attorney at trial withdrew after the trial ended, but before entry of the judgment. A replacement attorney filed a R59 motion on June 29, 2012, but did not set it for hearing. More than a year later, the chancery clerk brought it to the attention of the chancellor that the motion was pending and unresolved, and the chancellor overruled the motion sua sponte by order entered October 1, 2013. On November 9, 2013, the Nunnerys’ attorney filed a motion to extend the time to appeal. His motion spelled out his rationale:
a close family member of the undersigned attorney was involved in a serious car wreck in South Carolina, was in a comma [sic] in intensive care, underwent surgical procedures, and was placed on life support. These unfortunate events extended for a period of four (4) weeks requiring the undersigned attorney’s regular attendance at the Greenville, South Carolina hospital. On November 9, 2013, the family removed life support[,] and on November 16[, 2013,] the funeral was held.
The attorney explained at hearing that the relative was his brother, and he was required to spend many hours at the young man’s bedside and in counselling family members about end-of-life decisions.
In overruling the motion, the chancellor noted that the brother’s accident happened when there were still eight days remaining within which to file an appeal. She found it more significant that the R59 motion had never been prosecuted, and that the failure of the Nunnerys to move forward with their post-trial motion and appeal had already unduly delayed the finality of the judgment, and further delay would only prejudice the prevailing parties.
In Estate of Nunnery: Nunnery v. Nunnery, handed down by the COA July 21, 2015, the COA affirmed, finding that the chancellor did not abuse her discretion in denying the request for the extension. The majority opinion emphasized that the attorney could have filed the notice of appeal in the 22 days that had elapsed before the accident. Judge Maxwell’s specially concurring opinion made the valid point that the attorney may have had good reason for not filing the notice within the 22 days; it may have been that he could not get authorization from his clients, or maybe he had not yet been paid to file the appeal. Judge Maxwell pointed out that an appeal filed on the 30th day is as legitimate as one filed earlier. He would have relied more on the prejudice to the opposing party that, as he put it, trumped the unfortunate circumstances that prompted the motion.
As an aside, what should you do if the deadline is about to expire and you still have no retainer and no clear instructions from your client? One possibility is to ask the court for an extension within the 30-day window, which will likely be easily granted. Another is to file a notice of appeal without your client’s blessing. You will have to front the filing fee, but you will have bought some more time. It’s a strategy that can backfire, though, because your client can argue that you are now in the case to the end, paid or not. I did that once for a client who was having trouble gathering the money to cover court and transcription costs and attorney fees. It turned out okay, though, when the client did retain me shortly thereafter.
The Nunnery case seems like a harsh outcome, but the concept of excusable neglect is not all about the lawyer claiming it. It’s also about the others who will be affected by the court’s ruling. A lawyer asked me to “be fair” to his client in a case recently, and I assured him that I would, but that I also had to be fair to the other side at the same time. Sometimes the result of being fair can cut like a knife.
I call the concept of excusable neglect a “trap,” because it can lull you into a false sense of security that if you don’t tend to your business the court will rescue you. It should go without saying that asking the court to excuse your neglect should only be a last-ditch tactic. Better to watch those deadlines and act promptly.
Demoting General Relief
July 28, 2015 § 5 Comments
One of the chief distinctions between chancery and the law courts is that chancery is often called upon to be a problem-solving venue, as opposed to a place where one goes to obtain a money judgment against another.
And the chancellor’s authority to fix the situation can extend beyond the specific relief spelled out in the pleadings.
Many, many cases can come to mind to illustrate what I am talking about, but here are a couple:
- A case in which there is an acrimonious battle over child custody. In the course of the trial, the proof develops that both of the parties are using the children as pawns and spies, and are downgrading the other parent to the children. The pleadings filed by each party asked only for custody. Is the chancellor precluded from addressing the deleterious conduct in her final judgment? Of course not. Chancellors often add an injunction against conduct like that, whether asked for in pleadings or not. That has been the practice in chancery as long as I have been around, and it should be.
- Another example could arise in a land-line case. That type case is often characterized by property damage and atrocities, threats, and breaches of the peace (as, for instance in this COA case). Faced with evidence of such misconduct, can the chancellor deal with it even in the absence of an express prayer for relief? I think she should.
The principle embodied in those cases is why pleadings in chancery court typically include the ending phrase ” … and (s)he prays for general relief.” General relief flows out of the reservoir of equitable power that a chancellor can draw on to solve the problem, not just award money judgments. That is, after all, what equity was created for in the first place.
In the case of Redmond v. Cooper, 151 Miss. 771, 119 So. 592 (1928), the court had this to say about general relief:
“A prayer for general relief is as broad as the equitable powers of the court. Under it, the court will shape its decree according to the equities of the case, and, broadly speaking, will grant any relief warranted by the allegations of the bill, whether it is the only prayer in the bill, or whether there is a special prayer for particular and different relief; and defects in the special prayer are usually cured by a general prayer. If the facts alleged are broad enough to warrant relief, it matters not how narrow the specific prayer may be, if the bill contains a prayer for general relief. The prayer for general relief serves to aid and supplement the special prayer by expanding the special relief sought, so as to authorize further relief of the same nature. It may also serve as a substitute for the prayer for special relief, and authorize relief of a different nature when that specially prayed is denied.”
No doubt the above was what the chancellor had in mind in the course of legal proceedings between Denise Pratt and Darlene Nelson. Pratt had been making threatening phone calls to Nelson, and had been driving by her home at night. On one day, over the course of a few hours, Pratt sent Nelson 78 text messages, 38 telephone messages, 38 phone calls, and numerous voicemail messages, both via landline and cell phones. Nelson testified that Pratt used profanity and threatened that she and members of her household “would burn alive.” Nelson’s daughter was awakened by one of the calls, became frightened by what she heard, and fell while running to her mother, suffering an injury that required stitches in an emergency room.
Nelson filed a petition for an ex parte emergency domestic relations order in municipal court. Later, she filed a petition for a domestic abuse protection order in chancery court. In both instances, she used the forms provided by the Mississippi Attorney General, pursuant to MCA 93-21-1 through 33.
Trial before the chancellor commenced, but could not be completed within the time allotted. The case had to be continued to another day. The chancellor found the evidence to that point sufficient to support an injunction against Pratt prohibiting her from going within 1,000 feet of any party to or witness in the proceeding until the hearing could be concluded. After the hearing had been reconvened and the proof was concluded, the chancellor ruled from the bench, in part [quoting from Fn 6 of the COA’s opinion cited below]:
“… people are entitled to be left alone. . . . I’m going to keep the restraining order that I set in place at the close of the plaintiff’s case. But I am going to up [the penalty] to $10,000 upon a . . . valid showing of violation of the restraining order that I entered against you, Mrs. Pratt. . . . I think that’s reasonable. . . . I see a pattern of how this has taken place. . . . It’s [been an] ongoing controversy . . . for quite some time.” When Pratt’s counsel asked if the order was granted under the Domestic Abuse Protection Act or under Rule 65, the chancellor responded that he was granting it under the “Chancery Court Rules, . . . a temporary restraining order [under Rule] 65(b), whether it is asked for or not, because that would be general relief.”
Pratt appealed, complaining that the chancellor had erred in issuing an injunction per MRCP 65 when a protective order under the statute should have been issued instead. The COA agreed with her and reversed and rendered in Pratt v. Nelson, decided July 21, 2015.
I can’t disagree with the COA’s conclusion that the chancellor in this particular case went beyond the scope of the domestic-violence statute and the limits of the relief that it allows. What gives me pause, though is that the underlying problem here remains unresolved. The chancellor was there to solve or at least address the problem, which appears from the record to have been serious. He tried to do that via general relief, and, from my reading of the case law, he was within the scope of that authority. The cases on general relief and its parameters are, for the most part, old cases, dating as far back as the 1880’s and into the 1970’s. But that does not indicate that the concept is dead. In Bluewater Logistics, LLC v. Williford, 55 So.3d 148 (Miss. 2011), the MSSC upheld a chancellor’s award of equitable relief against defendants where it had not been expressly pled, but the relief was justified and supported by the evidence.
It seems to me that, ever since the MRCP for the most part did away with entirely different procedures in chancery and the law courts, the appellate courts have been viewing equity in a more limited way, rather than in the expansive view that cases like Redmond employed. It seems that the appellate courts want equity to operate within rigid, prescribed parameters like the law courts, rather than in a more fluid, problem-solving fashion.
When we restrict a chancellor’s power to craft an adequate solution to a human situation in which lives, property, money, and relationships are involved, we can put all of those at risk in the name of proper procedure. Surely no reasonable person wants that kind of result. That’s why we have “general relief” and chancery courts in the first place.
An Occasion When Adjudication is not Res Judicata
July 27, 2015 § Leave a comment
Does the judgment closing a conservatorship (or guardianship, for that matter) bar a subsequent action to set aside transactions that could have been adjudicated within the conservatorship while it was open?
That was the question taken up by the MSSC in the case of Estate of White: White v. White, decided December 11, 2014.
In that case, Charles William White (Bill) and his son, Tommy, were partners in a convenience store operation. In 2000, Bill married Anita White. Tommy bought out Bill in 2005, and paid his father cash for his interest, but the two never exchanged deeds necessary to finalize the buyout.
By 2009, Bill was in need of a conservatorship due to declining health. Anita and Tommy disagreed strongly over the course of Bill’s care; Anita wanted to make him comfortable so he could die with dignity, and Tommy insisted on life-sustaining care. Tommy used a power of attorney (POA) to transfer Bill’s interest in the partnership properties to himself to complete the transfer.
Tommy filed a petition to be appointed conservator of his father. Anita filed a counterclaim asking that she be appointed instead, and she asked the court to set aside any and all transactions by which Tommy transferred interest in his father’s assets to himself using Bill’s POA.
The chancellor found a conservatorship to be in Bill’s best interest, but rather than appointing either Anita or Tommy, he appointed a third party.
When Bill died in 2009, the conservator petitioned to the court to be discharged and to distribute the assets of the conservatorship to Bill’s estate. Both Anita and Tommy agreed to an order to that effect. The order waived accounting, but did not mention Anita’s claim to set aside the POA transactions.
In 2010, Anita filed a complaint to set aside the POA transactions. Both parties filed motions for summary judgment. The court sustained Tommy’s motion, ruling that the order closing the conservatorship barred Anita’s subsequent action, because she had brought the action within the conservatorship, which had been closed.
Anita appealed, and the COA affirmed, finding that the four identities of res judicata were present, and that, therefore, her action was barred.
The MSSC granted cert, and reversed both the COA and the chancellor. Here is how Justice Dickinson addressed the issue for a unanimous court (Justice Lamar not participating):
¶9. We conduct a de novo review of a trial court’s grant of summary judgment. A civil defendant may raise res judicata in a motion for summary judgment where a plaintiff’s suit centers around issues decided in a previous lawsuit. But for res judicata to apply, the defendant must show that the judgment rendered in the previous action was a final judgment on the merits.
¶10. A final judgment on the merits is “[a] judgment based on the evidence rather than on technical or procedural grounds.” While our prior cases have considered whether a judgment constituted a “final judgment on the merits” on a case-by-case-basis, a judgment generally will not be considered a “final judgment on the merits” when the first case was dismissed for a procedural defect or some other technical ground that prevented the court from reaching the merits of the case. If, in the previous case, the court did render a final judgment on the merits, res judicata will apply if both cases share four common identities.
¶11. In granting Tommy’s motion for summary judgment, both the chancellor and Court of Appeals thoroughly analyzed the four common identities necessary for res judicata to apply, but both courts failed to analyze the threshold requirement of a final judgment. Absent a final judgment, the alignment of the four identities is irrelevant.
¶12. The chancellor’s order discharging the conservator did not address any of the contested issues. As our precedent shows, a judgment based on technicalities or procedural issues generally will not be considered a final judgment on the merits. In his order discharging the conservatorship, the chancellor could have rendered a judgment on the contested claims between Tommy and Anita, but he did not.
¶13. The record indicates that the conservatorship was opened in early 2009 and closed when Bill died in June 2009. Far from a final judgment concerning the merits of the contested issues, the final judgment discharging the conservator was based solely on Bill’s death. The chancellor considered no other evidence when entering his order. Although Tommy correctly points out that Anita requested the court set aside the deed transfers in the conservatorship proceeding, the chancellor never addressed the issue.
[NOTE: Authority supporting the above language was set out in footnotes that were omitted in this post because they are too tedious to copy and paste. You can click on the link above to access the full opinion.]
You can take away from this that an order or judgment closing a conservatorship or guardianship does not extinguish the claims that were raised during the time that it was opened.
What would have been the outcome if Anita had not filed her claim to set aside the transactions while the conservatorship was open? My thinking without research is that she would have had a viable claim if she filed within the statute of limitations. What do you think?
July 24, 2015 § Leave a comment
At the D. Bell Seminar today. You should be also.
What, Me Argue?
July 23, 2015 § 2 Comments
Top Ten Reasons why lawyers don’t request oral argument on appeal, per Anderson.
Of the 34 or so appeals in which I was involved while practicing law, I never argued a case before the MSSC or COA. Anderson’s reason 8 pretty well sums up my thinking on the point. To be honest, though, some of those other reasons applied in some of my cases. Your mileage may vary.
The Unanswered Divorce Complaint
July 21, 2015 § 14 Comments
You have filed a divorce complaint for your client and had the defendant personally served per MRCP 4. Intelligence from your client leads you to believe that the defendant will not participate, so you put the file away and let the thirty days tick down.
On the twenty-ninth day, you receive a handwritten letter from the defendant neither admitting nor denying the allegations of the complaint. The defendant filed a copy of the letter in the case with the Chancery Clerk. You set the case for trial and, exercising prudence, give notice to the defendant of the day and time. You are still convinced that there will be no opposition since no bona fide answer or counterclaim has been filed, and, as your client indicated, the defendant is not likely to participate. You think it best to forego the trouble and expense of discovery.
On the day appointed for trial, you appear with your client and a single corroborating witness. The defendant, however, is there waiting for you, accompanied by competent counsel and a dozen or so supportive witnesses. The defendant is insisting on going forward with a trial right then and there. What to do?
- Can the defendant present evidence contra the grounds for divorce, even though he did not file an answer? Yes, according Rawson v. Buta, 609 So.2d 426, 430-431 (Miss. 1992). The lack of an answer does not confess the allegations of the complaint per MRA 93-5-7. Because the allegations of the complaint are not taken as confessed, they always require adequate proof to sustain them, and the defendant may offer proof to rebut the plaintiff’s proof. The defendant may not, however, go outside the scope of the complaint, and may not put on proof supporting any affirmative relief.
- You should ask for a continuance — on the record — and explain to the judge in detail why you need one and what were the presumptions on which you based your lack of discovery and other preparations for a trial. Bring to the attention of the court your lack of notice that the defendant would be represented, and what effect that had on your readiness for trial.
- Don’t assume if you get your continuance that the 90 days for discovery per UCCR 1.10 has been extended. Ask for additional time and get a court order to that effect.
- Was it ethical for that other lawyer to sandbag you like he did? I don’t see a specific ethical provision that was expressly violated, but it just seems to violate the spirit of RPC 3.4, as well as the preamble to the RPC. That kind of conduct does not pass the smell test, and would more than likely tip the scales in your favor for a continuance. In my experience, it’s the kind of conduct that causes hard feelings among attorneys in small communities and should be avoided. Defendant’s lawyer should have notified you when he was retained, or at least he should have filed an entry of appearance in the case and served it on you.
- [Added after publication] As a last resort, you could just move to dismiss your client’s complaint per MRCP 41(a). That would stop this unpleasantness, but your client would have to start over, and there is an off-chance that she could be assessed some expenses of the defendant for showing up.
Admitting a Document into Evidence, Step by Step
July 20, 2015 § 6 Comments
It can be daunting for young lawyers to tiptoe through the evidentiary minefield of the courtroom, but perhaps the most intimidating of all is to get a document into evidence, a process fraught with objections and roadblocks.
If you can understand the process, step by step, you can plan it out to navigate the expected hurdles. For purposes of this post, the term “document” used here includes all objects identified in MRE 1001 (1) and (2), as well as all tangible items that can be offered into evidence.
Here is the procedure, step by step:
- Hand the document to the witness, and, at the same time, hand a copy to counsel opposite. The attorney on the other side has the right to examine anything you hand to a witness. It’s also required that you furnish him or her a copy per Uniform Chancery Court Rule (UCCR) 3.5. Some judges prefer that you hand the document first to the court reporter and have it marked for identification before handing it to the witness, but I have found that to be a minority. Sometimes counsel opposite may object to admission of the document before you have even offered it. The simple response is that the objection is premature because you have not yet offered the document into evidence.
- Ask the witness to identify it. The witness must know what the document is and be able to identify it. MRE 602. The answer is merely an description of what the document is (e.g., “This is one of my bank statements,” or “this is an invoice I received”). At this stage, it is not proper for the witness to testify as to the content or meaning of the document; the witness can only testify to what the document is. lf the witness does not know at all what it is, then attempt to refresh or restore recollection, via MRE 612, 613, 801(d), or 803(5), If your efforts are unsuccessful to have the witness identify the document, proceed to Step 10.
- Establish how the document is relevant. Ask whether this document relates to the mortgage debt, or the parties’ income and taxes, or hospital bills, or whatever is at issue in the case (e.g., “This is my March bank statement for the joint account that Kevin wrote the $10,000 check on”). MRE 401 and 402. If relevance can not be established, proceed to Step 10.
- Establish authenticity. This can be convoluted, but the rules are pretty clear on how to do it. MRE 901 and 902. You can avoid difficulty with this part by sending Requests for Admission (MRCP 36) asking the other side to admit the authenticity and admissibility of the document(s); if they deny, then file a motion asking the court to get them to admit it, and for your resulting costs. Most competent, ethical attorneys will recognize the futility of making you drag someone like a telephone company or bank employee to court only to establish authenticity when it is clear that the document is what it appears to be. If you can not establish authenticity, proceed to Step 10.
- Establish any hearsay exemption or exception. Probably the most-objected-to area. If you know in advance that there will be hearsay objection(s), prepare in advance to meet them with specific exceptions to cite and, if possible, case citations. MRE 803 and 804 offer a multitude of ways around the rule. If you can not find a way around hearsay, go to Step 10.
- Satisfy the “Best Evidence Rule.” An explanation of the Best Evidence Rule can be found here, and some suggestions for dealing with it can be found here. In a nutshell, the rule provides that, if you are trying to prove the content of a document, you must produce the original, unless you can establish that the original is lost, not obtainable, or is in the possession of your opponent, or relates only to a collateral issue. MRE 1002, 1003, 1004, 1005, 1006, and 1007. Again, you can avoid some unpleasantness with this via Requests for Admission (MRCP 36). If you trip and fall here, proceed to Step 10.
- Offer the document into evidence. “I offer this document into evidence, your honor,” is all you need to say. Be prepared to meet any objection. If the court overrules the objection(s) and orders that it be admitted, proceed to Step 8. If the court rules that it is inadmissible, proceed to Step 10.
- Hand the document to the court reporter and stop talking. Hand the document to the court reporter and be quiet while the court reporter marks it as an exhibit. You do not need to instruct the reporter on what exhibit number to give it, or how to mark it; that is the judge’s prerogative. The court reporter will either hand the exhibit to the judge or give it back to you when he or she is finished, and you may then proceed to Step 9.
- Continue with questioning the witness, if desired. If you need more testimony from the witness about the document or its contents, you can go on from there. The witness will need to have a copy of the exhibit from which to testify. But remember that if you take the original from the judge, the judge will not know what you are talking about. You had better either leave the original with the judge and provide the witness with a copy, or have a copy to provide the court to follow along with your examination, per UCCR 3.05. Remember, too, to always refer to the exhibit’s number when questioning a witness about it, or your record will be hopelessly unintelligible.
- If the court rules your document inadmissible. If the court sustains a hearsay objection, for example, first offer another exception as an alternative. If that fails, offer another. If you feel the judge is wrong based on a specific case, offer that case and ask the judge to reconsider based on that authority. If your efforts are unsuccessful, ask that the document be marked “for identification purposes only,” per MRCP 103(a)(2). That request will never be denied if you made a bone fide effort to get the document into evidence. You may still be able to get the document into evidence through the testimony of another, later witness, but if you cannot, the document is in the record for appeal purposes; if you do not have it marked for identification purposes only, it will not be in the record for appeal. You may try later to file a post-trial motion to supplement the record if you neglected to get the document in at the trial, but you will not likely get any relief if the trial judge is not satisfied that there was sufficient testimony of the witness about it, or the judge did not have an opportunity to examine it and rule on it.
Be prepared and be successful. A selection of other helpful posts on topic:
- The importance of an offer of proof.
- Judging in the blind.
- Bulletproofing your witness.
- The importance of the sponsoring witness.
- Admitting a photograph into evidence.
- Admitting a business record into evidence.
- Understanding the Best Evidence Rule.
- Dealing with the Best Evidence Rule.
A Few Housekeeping Hints
July 16, 2015 § 1 Comment
Mostly for young lawyers, but some of you old geezers may need a reminder:
- The first question to ask any witness by the party calling that witness is to identify himself or herself. “Would you please state your name for the record?” And then follow with any other helpful identifying information. “Where do you live?” “You are the aunt of the defendant, are you not?” (hint: leading questions are okay in preliminary matters). It seems lately that I’ve had a rash of lawyers in hearings neglecting this important tidbit of evidence. It’s not enough to say, “We call Ethel Mertz as our next witness.” You have to ask Ethel to identify herself, and it helps for her to be asked if she is Lucy Ricardo’s neighbor and landlady.
- You need to sign the pleadings you file. It’s required by MRCP 11(a). Failing to do it can get you sanctioned, per MRCP 11(b), and repeated failure, particularly after having it brought to your attention, can be considered intentional.
- Remember that a non-collusion affidavit per MCA 93-5-7 is required in all divorce cases except complaints seeking a divorce on the sole ground of irreconcilable differences.
- It’s always within the discretion of the chancellor whether to require personal appearance of one or both of the parties in an irreconcilable differences (ID) divorce. And the chancellor decides what is sufficient in the record to support a finding that the parties have made adequate and sufficient provision for the support of minor children and for division of the marital estate. You need to contact the court administrator and find out what the judge requires before you go traipsing off three counties distant to present your ID divorce.