Reprise: Getting Out While the Getting’s Good
December 30, 2015 § Leave a comment
Reprise replays posts from the past that you might find useful today.
WHEN IT COMES TIME TO BAIL OUT
July 28, 2011 § 4 Comments
Sometimes it happens that you find it necessary to withdraw from representing a client. Maybe an ethical dilemma has reared its head. Or perhaps you and your client have developed irreconcilable differences. Or it could be that your client has not met the terms of the employment contract as to cooperation or payment or in some other way.
Once you have entered an appearance in a case, you are in it until the court lets you out. You may not avoid responsibility simply by not participating further. So when the need arises, how can you make an effective exit?
Uniform Chancery Court Rule (UCCR) 1.08 provides: “When an attorney makes an appearance for any party in an action, the attorney will not be allowed to withdraw as counsel for the party except upon written motion and after reasonable notice to the client and opposing counsel.”
In other words, it’s not good enough to get an agreed order signed by counsel opposite and present it to the judge. Nor is it adequate to get your client to sign off on an order.
Here is what you have to do, step by step:
- File a motion to withdraw. Set out a general statement of your reason without compromising the interest of your client in the litigation.
- File the motion and send a copy of it with certificate of service to opposing counsel and the client.
- Notice the motion for hearing.
- If your client and opposing counsel will sign an agreed order allowing you to withdraw, present it to the court for entry.
- If either your client or opposing counsel, or both, object, hold a hearing and ask the court to rule on your motion.
Several caveats:
- If the case is set for trial, most chancellors will allow you to withdraw only in the most urgent and exigent circumstances.
- No chancellor will allow you to withdraw if to do so will seriously prejudice your client.
- You may not withdraw in any probate matter unless there is an attorney who will substitute for you. UCCR 6.01 requires that the fiduciary retain an attorney, unless the fiduciary is a licensed attorney.
- Be general in stating a reason. Okay: “The undersigned attorney and the plaintiff have differences of opinion about handling this case that can not be resolved.” Not okay: “My client has filed three bar complaints against me and has retained counsel to sue me for malpractice, and I have reason to believe he is concealing assets from the court.”
- Don’t include any language in your order that absolves you of any responsibility for anything you did in the case, or approves everything you did; that’s overreaching. You may state that you are relieved of all further responsibility from and after the date of the order allowing withdrawal.
- Many chancellors will not permit you to withdraw if the only basis is non-payment of fees. Their rationale is that you took on a professional duty to represent the client when you entered an appearance, and that duty is higher than your desire to be paid.
Beam to MSSC
December 29, 2015 § 6 Comments
Chancellor Dawn Beam of Sumrall was appointed yesterday to fill Justice Randy Pierce’s soon-to-be-vacated seat on the MSSC. Her appointment is effective February 15, 2016. She will have to stand for election in November, 2016, as mentioned in yesterday’s post.
Beam’s appointment continues the role of a chancellor on the high court. Pierce was a chancellor before his appointment to the MSSC.
The Jackson Clarion-Ledger’s article on the appointment and Judge Beam’s background are at this link. (You may encounter paywalls and annoying pop-ups and “surveys”)
From this Blog’s perspective, Judge Beam’s appointment is a major positive, since she is a top-notch chancellor, and knowledge of chancery practice and equity sometimes seems a mystery to appellate judges.
I only wish chancellors were not just a token one-seat allocation on each court. A huge portion of Mississippi trial-court practice is in our chancery courts. It’s where most Mississippians experience their everyday contact with our courts — in custody, divorce, probate, property, contract, commitment, and many other issues — that are what chancellors deal with on a regular basis.
And yet, it’s the big-money PI lawyers — defense and plaintiff — and felony-level criminal lawyers, who claim “legitimacy” and elbow aside chancery at the appellate level. That does not exactly serve most Mississippians at the grass-roots level.
We need more chancery representation on the MSSC and COA. Only those who have practiced in chancery court really understand our procedures and how equity operates. So I applaud Judge Beam’s appointment. She will do a superb job on the third floor of the Gartin Justice Building. I only wish we had one more — or a couple more — to give her a little more support.
Maxwell to MSSC
December 28, 2015 § 1 Comment
Reshaping of the MSSC is continuing with the appointment of Judge Jimmy Maxwell of the COA to the high court seat being vacated by Justice David Chandler. The appointment to the North Mississippi District seat, is effective January 1, 2016. Maxwell will have to run in a judicial election in November, 2016.
Chandler’s resignation earlier this month, to assume leadership of the state’s troubled foster-care program, created the vacancy to which Maxwell is appointed. Only the timing is surprising. It was widely known that Justice Chandler did not intend to run again when his term ended in 2016. Multiple sources said that Maxwell intended to run for Chandler’s seat if he did not run again.
One soon-to-be-vacant MSSC seat remains to be filled. Justice Randy Pierce is stepping aside to take over leadership of the Mississippi Judicial College, effective February 1, 2016.
Maxwell’s appointment will in turn mean a vacancy on the COA that will have to be filled from District One, which is the northeastern area of the state.
The Jackson Clarion-Ledger’s article on Judge Maxwell’s appointment is at this link. (You might encounter a paywall and annoyances like pop-ups and “surveys”)
A previous post on changes to the MSSC is here.
All of the 2015 judicial appointees, at both appellate and trial levels, will have to stand for election in 2016. This latest round of appointments, along with previous appointments and other appellate races that are expected to be contested, will make for an interesting judicial election cycle in 2016.
December 21, 2015 § 4 Comments
Taking a holiday break.
I wish all of you a Merry Christmas, Happy Hannukah, Joyous Kwanzaa, or just a few days off work.
Next post December 28, 2015.
How Will You Measure Your Life?
December 18, 2015 § 2 Comments
Lawyers are driven to accomplish. We are ambitious and goal-driven. Sometimes in pursuing lofty goals, though, we can lose sight of the opportunities we have to make a difference. The importance of making a difference in your own little slice of the universe is something about which I have posted here previously.
Here is a Ted Talk with Harvard Business School Professor Clay Christensen that offers some insight into what really counts and what will ultimately be the measure of your life.
Thanks to Attorney Michael Grace
Equity Shines Through
December 16, 2015 § 9 Comments
Just when you thought equity was moribund (okay, I confess that it’s more me than you), along comes a case where the appellate court looks over the masterful equitable remedy crafted by a thoughtful chancellor and says, “Job well done.”
That’s what happened in the MSSC case Scafidi, et al. v. Hille, decided December 10, 2015, which involved division of the parties’ interests in several businesses inherited jointly by siblings Gerald Scafidi and Jo Ann Scafidi Hille. The facts are complicated, and the proceedings were convoluted, but the gist of it is that the chancellor ordered what amounted to an equitable distribution of the corporations and real property so as to divide them fairly between the brother and sister. Gerald appealed raising many issues that were addressed in detail in the 44-page opinion by Justice Waller. For our purposes, though, we will look at how the court dealt with Gerald’s argument that the relief granted by the chancellor was improper:
¶60. We now turn to the relief granted by the chancellor. In an action to judicially dissolve a corporation, a chancellor does not have to order a dissolution, even if grounds such as oppression or deadlock are met. This is because the general view in Mississippi is that “[d]issolution is an extraordinary remedy to be sparingly administered in exceptional cases only.” Capitol Toyota, Inc. v. Gervin, 381 So. 2d 1038, 1039 (Miss. 1980). However, “if the strife among the participants has been so long and bitter that the former relationships of congeniality and trust cannot be re-established [like Jo Ann and Gerald’s case], there is little left that an unhappy shareholder can do except . . . bring about the dissolution of the business.” F.H. O’Neal & R. Thompson, O’Neal’s Close Corporations § 9.04 (3d ed. 1971). “But the more common relief in modern cases . . . is to provide relief alternative to dissolution.” Id. at § 9.25. Mississippi’s corporate dissolution statute states that “[n]othing contained in this section shall diminish the inherent equity powers of the court to fashion alternative remedies to judicial dissolution.” Miss. Code Ann. § 79-4-14.34 (i) (emphasis added).
¶61. Contrary to Gerald’s assertion, the chancellor did not dissolve the corporations. Instead, he fashioned an alternative remedy to this problem. The chancellor found that the source of funds for the $180,000 Gerald used to purchase the minority shareholders’ interest in the Trailer Park and the Restaurant corporations came from the corporations themselves. Those shares were purchased with funds equitably owned by both Jo Ann and Gerald. So Gerald’s purchase was for the benefit of both parties. The chancellor then disregarded the shares purchased by Gerald and considered Jo Ann and Gerald to be equal shareholders in the Restaurant and the Trailer Park. After equalizing their interests in the corporations, the chancellor ordered that the property lines be modified by survey to reflect that Jo Ann and Gerald owned fifty-percent of the land upon which the Trailer Park and the Campground were situated.
¶62. The Amended Final Judgment from which Gerald appeals states “that the Court divides, partites, and equitably separates the parties by granting each full ownership of separate companies . . . .” He then granted Jo Ann full ownership of the Trailer Park, and Gerald full ownership of the Campground. The chancellor ordered “that each of the parties is to execute the necessary documents, including deeds, bills of sale and stock certificates to accomplish the directions of the court.” Nowhere in the Amended Final Judgment does the chancellor mention “dissolution.” The chancellor did quite the opposite when he fashioned an alternative remedy to dissolution, which he had full authority to do under Section 79-4-14.34 (i) of the Mississippi Code.
¶63. Since the chancellor did not order a direct dissolution of the corporations, Gerald’s argument that this “equitable distribution” method violates the method provided by the Mississippi Legislature in Section 79-4-14.05 to dissolve a corporation and distribute its assets among its shareholders according to their interests is without merit.
¶64. We cannot locate any precedent in which a chancellor has granted this exact, or even similar, relief. However, we note that “[i]t is not necessary that some exact precedent be found for extending relief in a given situation.” Griffith’s Mississippi Chancery Practice § 35 (2000 ed.) (citing Miller v. Doxey, 1 Miss. 329, 333 (1829)). If a certain form of “relief is clearly requisite and a practical remedy may be applied, such remedy is not to be denied because that remedy has never been applied in just that manner to that exact state of case.” Id. The question for this Court to decide, then, is whether the relief granted here is an appropriate remedy under Mississippi Code Section 79-4-14.34(i), which states “[n]othing contained in this section shall diminish the inherent equity powers of the court to fashion alternative remedies to judicial dissolution.” Although little caselaw addresses Mississippi’s alternative-remedy provision, substantial precedent supports the chancellor’s broad powers to provide an equitable solution in cases such as this. See, e.g., In re Hardin, 158 So. 3d at 346.
¶65. Other jurisdictions offer guidance as to appropriate remedies to resolve disputes among dissenting shareholders in a close corporation. Some courts have resorted to remedies listed by statute, while others have fashioned remedies not specifically mentioned in a statute. O’Neal’s Close Corporations at § 9.35 …
After reviewing some of those statutory provisions from other states, the court concluded:
¶67. After reviewing these alternative remedies, and in light of all the particular factual circumstances of this case, we find that granting full ownership in the respective separate corporations operated individually by Gerald and Jo Ann was a practical, fair, and just remedy to resolve the dispute. A chancellor’s remedial powers have long been “marked by plasticity.” Griffith’s Mississippi Chancery Practice § 35 (citing Hall v. Wood, 443 So. 2d 834, 843 (Miss. 1983)). “Equity jurisdiction permits innovation that justice may be done.” Id. If ever a case needed the innovation allowed by equity jurisdiction, it is this one. Considering that nothing “shall diminish the inherent equity powers of the court to fashion alternative remedies to judicial dissolution,” Miss. Code Ann. § 79-4-14.34 (i), we find that the chancellor did not abuse his discretion in fashioning this alternative remedy.
I’m proud to see the high court recognizing the unique problem-solving capability of chancery court. Innovation and flexibility to achieve a just, equitable outcome are what equity is all about.
Justice Pierce to MJC
December 15, 2015 § 1 Comment
MSSC Justice Randy Pierce is stepping down from his Mississippi Supreme Court seat to take on directorship of the Mississippi Judicial College (MJC). The appointment is effective February 1, 2016.
MJC is the body that is responsible for training and continuing education of Mississippi judges at all levels, court clerks, and court reporters. It also compiles data on the judicial branch for the Mississippi Legislature. MJC is a division of the University of Mississippi, and has its offices on campus in Oxford.
Justice Pierce stated that he had already made the decision not to seek another term when his current one expires in 2017. Justice Pierce is a resident of Greene County, and was elected from MSSC District 2, which is the southernmost district of the state.
The official MSSC announcement is at this link. An article from Mississippi Press-News at Gulflive.com is at this link.
Only yesterday Phillip Thomas had a post on his blog about Justice David Chandler’s decision to leave the court to take over the state’s troubled foster-care program, and how other contested seats in upcoming elections will change the face of the court over the next few years. Looks like that is already happening.
What You Need To Prove for Homemaker Services
December 14, 2015 § Leave a comment
In equitable distribution, one of the factors the court is required to consider is “Substantial contribution to the accumulation of the property … ” by … “Direct or indirect economic contribution …” Ferguson vs. Ferguson, 639 So.2d 921, 928-9 (Miss. 1994).
Over the years since Ferguson the courts have recognized that a homemaker’s contribution is to be recognized as an indirect contribution. In doing that, I think most of us have accepted a modicum of evidence on the point to support a finding. But is that enough?
In the divorce trial between Rodney and Courtney Williams the chancellor made this finding that:
“the wife was the homemaker of the parties[ and] that the husband earned the majority of the financial income. This is reflected by the domestic services rendered by [the wife] shown during the periods of time in which the grandchildren lived in the home, and she, as well as the husband, took care of them. I find that both have contributed equally toward the acquisition of property[—]he directly financial[] and she through domestic and in-kind services. Accordingly, I find that both are entitled to an equal distribution of those properties.”
To be honest, I think most chancellors make similar findings and conclusions. On appeal, Rodney took issue with the chancellor’s statements, arguing that Courtney had made only meager contributions.
In the case of Williams v. Williams, handed down November 17, 2015, the COA found that the chancellor’s findings were not supported by substantial evidence on homemaker services, and remanded for further proceedings. Judge Irving wrote for the majority:
¶35. In Lowrey v. Lowrey, 25 So. 3d 274, 287 (¶31) (Miss. 2009) (citation omitted), the Mississippi Supreme Court explained:
[T]he concept of homemaker services rests on a showing that the homemaker has contributed to the economic well-being of the family unit through the performance of the myriad of household and child-rearing tasks. In valuing this service[,] consideration should be given to the quality of the services. For example, a homemaker who, over the course of the marriage, has been frugal in the handling of homemaker expenditures and has thereby enhanced the family assets is entitled to a more equitable return than one who has been extravagant.
¶36. In this case, the record does not establish the extent of Courtney’s contribution toward the acquisition of the marital property. It appears that the chancellor mistakenly thought Courtney was a stay-home spouse and grandmother. As noted, Courtney worked during the course of the marriage, working eleven of the twelve years of marriage at one place, where her net income was approximately $1,600 per month. The record does not inform us where Courtney worked during the first year of the marriage or how much she earned during that year. The parties had no children together, and there is no testimony in the record regarding the division of the household duties. Although Courtney took care of the grandchildren in the home for some period of time, we note that the grandchildren were her grandchildren, but not Rodney’s grandchildren. It appears that the chancellor placed some weight on this fact in determining that Courtney was a homemaker and that her grandchild-caring duties contributed to the acquisition of the marital estate. The record reflects that Rodney paid the majority of the household expenses and the entire mortgage note on the marital home. It further reflects that Courtney deposited only $250 biweekly in a joint bank account to help with the household expenses but routinely withdrew money from that account for other purposes unrelated to household expenses. And the record is silent as to any other financial contributions that Courtney may have made during the marriage. Therefore, there is not substantial evidence in the record supporting the chancellor’s finding that the parties “both have contributed equally toward the acquisition of property[—]he directly financial[] and she through domestic and in-kind services.”
A few takeaways:
- The chancellor here believed that Courtney’s contribution to the household should have been recognized, but there was simply not enough evidence to support his conclusion. Unless you really want your case to be reversed and remanded, it’s up to you to develop the evidence on the record that will support the judge’s findings. Here, the chancellor could just as easily have found against Courtney on the factor, which could have adversely impacted her equitable distribution. Read Lowrey and take it to heart. Use it as a template in your next equitable distribution case.
- If you represent the homemaker and your case is weak on this factor, make sure you bulk up your proof on the other factors, and try to convince the judge that this is not the key factor to consider in making a division. Remember that all of the factors do not have equal weight; the weight to be accorded to each varies from case to case, depending on the facts.
- The converse is true if you represent the direct contributor. Emphasize the direct contribution in terms of its role in the acquisition and appreciation in value of the marital estate.
- Never assume that the judge’s findings will make up for gaps in your case. If the judge stretches to make an assumption, you could find the case ricocheting back to you because those findings are not supported by substantial evidence. Client’s don’t like having to pay for a do-over.
Elvis in Meridian …. More
December 11, 2015 § 1 Comment
Before his epochal appearance on Ed Sullivan’s TV show in February, 1956, Elvis appeared in Meridian in 1955 with his first pink Caddy in a Fall Festival parade. Here’s the video.
Here’s a post I made previously on Elvis in Meridisn.
The Better Chancery Practice Blog 