So Long to Sue

March 31, 2016 § 3 Comments

Sue Franklin took the position of Court Administrator in Lauderdale County on February 24, 1986. Her tenure ends today with her retirement at the close of business, after more than thirty years’ service in the position.

Attorneys, paralegals, secretaries, office staff, and judges who dealt with her will, I am confident, attest to how helpful, cheerful, and accommodating she has been. One of her salient qualities is that Sue never takes anything too seriously, unless it comes to protecting the time and security of her judges, and then she goes into full-court-press mode.

Sue has been: paper-work-shuffler, quasi-secretary, advisor to confused lawyers and staff, scheduler, commiserator, receptionist, liaison to AOC, and a myriad of other roles that have freed up the chancellors to devote their attention to substantive matters.

We had a going-away reception for Sue Tuesday, and most of the local bar, courthouse personnel, her family, and friends attended. It was festive and fit Sue’s sunny personality. Here is a photo of the cake made especially for the occasion:

Sue's cake

Anyone who has ever had any dealings with Sue would agree that the cake is spot-on.

Court administrators did not become state employees until July, 1994, when AOC went into business. Sue and others in similar capacities around Mississippi at the creation helped design the position from scratch. Sue is certainly one of the longest-serving in the job, if not the dean of Mississippi court administrators.

We will miss Sue’s wicked sense of humor, her willingness to roll with the punches, her devotion to her judges and lawyers, and her high spirits.

Best wishes in your retirement, Sue. May you live long and enjoy your freedom to spend time with your children and grandchildren.

Bell Save the Date

March 30, 2016 § Leave a comment

Dean Deborah Bell’s annual Family Law CLE is a must if you expect to be current in your domestic law practice.

This year’s dates and locations:

  • July 8, 2016  — Oxford
  • July 22, 2016  —  Gulf Coast
  • August 5, 2016  —  Jackson
More details later.

An Agreement to Agree is not an Agreement

March 29, 2016 § Leave a comment

Ken and Lauren Moreland agreed in their irreconcilable divorce to the following provisions:

Kenneth Moreland shall pay one-half (1/2) of all expenses of the minor child for up to two (2) extracurricular activities and the reasonable age appropriate activities of the minor child which the parties agree are reasonable and necessary for the minor child.

The parties shall be responsible for one-half (1/2) of all preschool and/or private school tuition and expenses for the minor child attending preschool and/or private school, until graduation, including but not limited to registration fees, school uniforms, school supplies, lunches and any other expenses due to the school or as a result of the minor child attending school if the parties agree to enroll [the child] in a private preschool or school. [Emphasis added]

In Moreland v. Spears, handed down March 1, 2016, the COA held (at ¶11) that the italicized language required the agreement of both parties before Ken became obligated under the divorce contract to pay any part of those expenses. Since Ken never agreed, he was not bound to pay.

The very purpose of a contract is to create an agreement that is enforceable in a court of law. It’s a basic principle of contract law that a mere agreement to agree is no contract. See, e.g., Intrepid, Inc. v. Bennett, 176 So.3d 775 (Miss. 2015).

I have seen many PSA’s with similar provisions, and I always ask from the bench whether the party understands that there is no obligation if the other party does not agree. Most of the time the cheery, optimistic answer is that no problem is expected, and that, surely, the other party will “do the right thing.” To that, I always warn that if (s)he does not, no court can make him or her do the right thing under the terms of this agreement. Occasionally, the party will ask to go back to the drawing board. That’s the wiser course.

If you’re going to include Moreland-like language in a PSA, be sure to advise your client of the pitfalls. Better still: put it in writing and have your client acknowledge receipt by signing it.

Easter Monday

March 28, 2016 § 6 Comments

God is not in this place; the rock is rolled away
and He has gone down into the neighborhoods
to suffer with the powerless, the criminals, the poor,
to bring them peace, justice, loaves, fishes.

He is not hidden in a cloud of incense or jumble of words;
God is what God does, not what we think of Him,
not what we say about Him, nor what we believe about Him,
God acts, and His acts are what and where He is.

We have thought too much on God,
the inscrutable ways and mysteries of Him,
probed His meaning so unknowable;
sought Him, everywhere but where He is.

Like visitors to the bottom of the sea
lurching in the oppressive dark current,
we see not what we gaze upon,
turning our eyes upward to the light.

Look not up, but here: God is with us, right beside us;
where we are bombed, terrified, starved, gassed;
loved, hurt, sick, strong, worried, happy, poor, sad,
comfortable, ignorant, old, young, feeble, He is here.

We have thought like thought could know Him,
yet when a shadow falls, it is only a shadow,
not the awakening or the apocalypse;
enlightenment eludes us like the brush of a butterfly wing.

God showers grace and mercy on us in a bouquet of love;
that is what God does, and that is how we will know Him,
here, right beside us, among us, feeling what we feel,
holding our hand if we will only let Him.

March 25, 2016 § Leave a comment

Good Friday

Courthouse closed.

HB 571 Died in Committee; Other Bills Not Dead

March 24, 2016 § Leave a comment

According to the Mississippi Legislature’s Bill Status site, HB 571, which we discussed here previously, died in committee on March 22, 2016. The measure would have allowed enhanced-permit handgun-carriers to bear arms anywhere in a courthouse except the courtrooms, judges’ chambers, and judicial staff offices. Here is the link to the legislature’s status report.

Here are the other bills that may be of interest to chancery practitioners still alive as of March 22:

HB 519 MS Unborn Child Protection from Dismemberment Abortion Act; create.
03/22 (S) Title Suff Do Pass As Amended

Mims HB 553
* Human trafficking; increase penalty and authorize center for violence prevention.
03/22 (S) Title Suff Do Pass As Amended


HB 767 Trespassers; codify duty of care to.
03/22 (S) Title Suff Do Pass As Amended


HB 772 Youth court; authorize counsel to represent indigent parent.
03/22 (S) Title Suff Do Pass


HB 786
* “Mississippi Church Protection Act”; create.
03/17 (S) Title Suff Do Pass As Amended


HB1240 Termination of Parental Rights.
03/17 (S) Title Suff Do Pass As Amended


HB1375 Alcoholics and drug addicts; DMH shall try to arrange for supportive services upon discharge from treatment facility.
03/22 (S) Title Suff Do Pass As Amended


* Child abuse; provide that a trafficked child is an abused child.
03/17 (S) Title Suff Do Pass


* The “Protecting Freedom of Conscience from Government Discrimination Act”; create.
03/22 (S) Title Suff Do Pass


HB1529 Appeal bond requirements; revise.
03/22 (S) Title Suff Do Pass As Amended


HB1635 Appropriation; Supreme Court, Court of Appeals and trial judges services.
03/21 (S) Title Suff Do Pass As Amended


* Mississippi Department of Child Protection Services; establish.
03/22 (H) Title Suff Do Pass As Amended


* Trust law; make technical corrections.
03/22 (H) Title Suff Do Pass


* Writs of garnishment; limit liability of garnishee if garnishee is a financial institution.
03/22 (H) Title Suff Do Pass As Amended


SB2418 Divorce; domestic violence as additional ground for.
03/22 (H) Title Suff Do Pass As Amended


* Articles of incorporation; revise.
03/15 (H) Title Suff Do Pass As Amended


* Supporting and Strengthening Families Act; create.
03/22 (H) Title Suff Do Pass As Amended


SB2660 Senior status judges; revise service qualification.
03/22 (H) Title Suff Do Pass


Is a Default Judgment Proper in a R81(d)(2) Case?

March 23, 2016 § Leave a comment

The COA, in Bailey v. Estate of Barksdale, et al., decided March 1, 2016, dismissed Bailey’s appeal because the judgment appealed from disposed of fewer than all of the pending issues, so that the COA lacked jurisdiction per MRCP 54(b).

In that case, the estate had claimed that Bailey had improperly utilized a POA to convert assets of the decedent to his own use. Summons per R4 and R81 were issued, and he was personally served. He never appeared, however, at any of the many hearings that were held, and the chancellor entered a default judgment against him. There is no record of any hearing. He filed a R60 motion to set aside the default judgment, which the chancellor denied. He appealed and the COA dismissed because the judgment appealed from specifically reserved for a future date the determination of his liability for attorney’s fees. That’s fairly straightforward.

What intrigues me about this case, though, is Judge James’s dissent, which I quote in its entirety:

 ¶40. I would find that the case should be dismissed for lack of subject-matter jurisdiction; [Fn 2] thus, I respectfully dissent.

[Fn 2] “Jurisdiction over the nature of the case and the type of relief sought; the extent to which a court can rule on the conduct of persons or the status of things.” Black’s Law Dictionary 93 (10th ed. 2014)

¶41. Gerald argues that the trial court erred in denying his Mississippi Rule of Civil Procedure 60 motion, because it was fundamentally unfair to enter a default judgment since no answer is required under Rule 81, and he did not appear on September 13. Moreover, there was no hearing or introduction of evidence on the estate’s petition.

¶42. Under Rule 81, even when the defendant is properly served and fails to appear, an entry of default is improper since no answer is required to be filed by the defendant unless ordered by the court. Saddler v. Saddler, 556 So. 2d 344, 345 (Miss. 1990). The trial court must hold an evidentiary hearing on the issues set out in the pleadings before granting a judgment, and failure to do so is reversible error. Curry v. Frazier, 119 So. 3d 362, 366 (¶12) (Miss. Ct. App. 2013).

¶43. The estate argues that the claims for which the default judgment was granted are not within Rule 81(d)(2) jurisdiction. The chancellor’s default judgment and order to show cause indicate that she, likewise, had determined that while some of the claims in that petition were within the jurisdiction of Rule 81(d)(2), the claims of unjust enrichment, constructive trust, and breach of fiduciary duty were not. And on that basis, since Gerald was served with a Rule 4 summons and failed to respond within thirty days, the chancery court granted a default judgment on those three claims.

¶44. As to the estate’s argument that the claims of unjust enrichment, constructive trust, and breach of fiduciary duty generally are not exclusively within Rule 81(d)(2) jurisdiction, I agree. Nevertheless, the specific claims at issue were brought within a petition dealing with estate matters. The Mississippi Rules of Civil Procedure are clear that, when dealing with estate matters, Rule 81 governs. M.R.C.P. 81(d)(2). No interpretation of that rule in any way suggests that the court may choose to apply a Rule 4 summons to underlying causes of action enumerated in a petition dealing with estate matters. Furthermore, there is no caselaw to support the estate’s argument that this procedure is proper.

¶45. Rule 81(d)(3) states that “[c]omplaints and petitions filed in the actions and matters enumerated in subparagraphs (1) and (2) above shall not be taken as confessed.” Although the record does not say what transpired on September 13 when the case was set for a hearing, the record does show that Gerald was not present in court. The chancellor granted the default judgment because Gerald failed to file a response within thirty days and failed to appear on September 13. Thus, the default judgment was granted under Rule 4.

¶46. The majority opinion relies on the fact that the parties did not obtain permission from the trial court and our supreme court under Mississippi Rule of Appellate Procedure 5. Under Rule 5, an interlocutory order is not appealable unless the Mississippi Supreme Court grants permission. Under Rule 54(b), a trial judge “may direct the entry of a final judgment as to one or more but fewer than all of the claims of the parties.” Here, the chancellor did not make this determination because it was not requested. I agree with the majority opinion that a Rule 54(b) certification is required in order to appeal an intermediate ruling.

¶47. However, the Rule 4 summons did not give the chancellor jurisdiction over those claims before the chancery court. Since jurisdiction was not proper, the trial court did not have the authority to grant a default judgment, nor does the appellate court have jurisdiction to hear the appeal. The estate issued a Rule 4 and Rule 81 summons as a “catch all” tactic, but our rules do not provide for this procedure.

¶48. The lack of proper service of process is both jurisdictional and dispositive in this case. Even though there is no Rule 54(b) certification, we should not reach that issue since process was not proper.

¶49. The record before the Court indicates that the default judgment was granted because Gerald had been properly served with a Rule 4 summons. The record before this Court also indicates that no hearing was held on September 13 as Rule 81 requires. Because Rule 4 did not give the chancellor the authority to grant the default on an estate matter, I would dismiss the case for lack of subject-matter jurisdiction.

What lawyer who has spent any appreciable time in chancery court has not been confronted by the R4 vs. R81 conundrum? I think Judge James raises some interesting and valid points about how jurisdiction hangs on the process that is used.

Also, if you want to satisfy R81, you must put on proof. None of the matters enumerated in MRCP 81(a) or (b) may be taken as confessed. Even if you do not make a record with a court reporter, you need to recite in your order or judgment that testimony was heard and recite the court’s findings based on that testimony.

I am, of course, not privy to the reason why the other judges did not buy into Judge James’s reasoning. I speculate that they thought the process problem was cured by the dual process procedure that was used. Her point about entry of a default judgment and the lack of a hearing is a good one, though.

Reprise: The Apple iPhone Doesn’t Fall Far from the Tree

March 22, 2016 § 1 Comment

Reprise replays posts from the past that you might find useful today.


September 27, 2011 § 2 Comments

Cell phones in court rooms have given rise to some pretty funny situations.

I have seen judges fly into a blind rage at the sound of a ringing cell phone during a trial. And I have seen judges act benignly, at most emitting a resigned sigh to the techno intrusion. The range of reactions is almost infinite.

In the early days of cell phones in our district, Judge George Warner was in the more-or-less rageful category. Since people were unaccustomed to the new contraptions, it happened fairly often that they neglected to turn them off before entering the court room. So it was that chirping cell phones could be heard as witnesesses droned on in trials. The high frequency ringtones irked Judge Warner the most. He would stop the witness, demand to know whence the intrusion arose, and direct the bailiff to confiscate the offending instrument forthwith. Since it never happened to me or my client personally, I never discovered what became of all those seized phones. I imagined that there was a warehouse with stockpiles of them, some buzzing or beeping merrily along unanswered, with no human to put them to rest.

In time, as people became used to the electronic marvels and the instruments became more sophisticated, we learned to put our phones on “vibrate.” We males also learned not to carry them in our pants pockets in the court room when the phone was on vibrate, lest sudden vibrations in that region cause a surprised yelp or leap into the air inconsistent with court room decorum.

And so the practice became to place the vibrating phone on counsel’s table, where it could vibrate away without consequence. Or so we thought. In one trial I had, I was cross examining the witness at the only court room podium in Judge Mason’s court. The podium was next to counsel opposite’s table. As I questioned the witness, I was distracted by a sound akin to a swarm of bees to my right. After a minute I looked over and there was Robbie Jones’s cell phone lit up like a Christmas tree, vibrating loudly on the oak table. The table was amplifying the sound. Every time the phone vibrated, it inched across the table like a buzzing, manic seventeen-year locust. Jones sat there and watched the creature head toward the edge of the table. Right before it lurched off into oblivion, I snatched it and handed it to Jones with a flourish. We two lawyers were quite amused. Judge Mason not so much.

When I took the bench, it became my practice not to react to the mere blirping of a cell phone in my court room. Most callees react with mortification at their oversight, and commence with comic spasmic desperation to put a stop to the interruption. I figure their embarassment is punishment enough. Of course, my reaction would be different at the second offense by the same person, or if the offender began a cell phone conversation in the court room.

Most judges nowadays react by taking up the phone and holding it until the end of the day or the trial. [Then Chancery Court] Judge Gene Fair of Hattiesburg related his woeful experiences:

On one Friday afternoon in Poplarville, early in my first term as a [chancery] judge, it was announced by me just before beginning of a trial that ringing cell phones during a trial would be considered, as allowed and provided by a Uniform Chancery Rule, to be contempt of court punishable by a fine of $50.00.

Forty (40) minutes into the trial my phone rang. I recessed Court, wrote a check for $50.00, put my phone in chambers and announced that future fines would be $25.00, and would be paid at the close of proceedings, when the offending phone would be returned to its owner by the bailiff. .

It was funny to almost everyone in the Courtroom, as was my payment of $25.00 the following Monday in Purvis, when two lawyers joined me in paying the Clerk a total of $75.00. As Justice Mike Sullivan pointed out when he showed up significantly late for a trial because of having gone to the wrong courthouse and wrote a $100.00 check to the clerk for his contempt, “I have learned a lesson. I hope someone else has also.”

I have had to pay only $25.00 this year, and it is September.

So far in my time on the bench I have paid a total of $250 in four of five of my counties. There are only one or two other offenders who have gone as high as $100.00. In Perry County, the smallest county and the one of which my great-grandfather was a Justice of the Peace, I have a pristine record. It is probably the result of only three one week terms and a few ex-parte days schedule for my presence there.

That oh, so convenient cell phone with its pleasant bell-tone. Will it toll for thee?

No Bond = No Appeal

March 21, 2016 § Leave a comment

In case you need a reminder that statutory appeals require that you follow the letter of the law in every particular, or suffer dismissal, the case of Lamberth v. S. Panola School District will serve the purpose quite nicely.

Joseph Eugene Lamberth was terminated from his Assistant Principal job with the South Panola School District on February 4, 2014. He appealed to chancery court per MCA 37-9-113(1)-(2), by filing a petition. He did not post a bond, however. The school district filed a motion to dismiss for failure to post the bond. Lamberth responded that he did not know of the requirement to file a bond. The chancellor dismissed the appeal, and Lamberth appealed the dismissal.

In a decision handed down February 16, 2016, the COA affirmed. Judge Ishee spelled out the reasoning:

¶5. The grant or denial of a motion to dismiss is reviewed de novo. Breland v. Harrison Cty. Sch. Bd., 96 So. 3d 61, 64 (¶9) (Miss. Ct. App. 2012) (citations omitted). The applicable statute for appeals of school-board actions states the following:

(1) Any employee aggrieved by a final decision of the school board is entitled to judicial review thereof, as hereinafter provided.

(2) An appeal may be taken by such employee to the chancery court of the judicial district in which the school district is located, by filing a petition with the clerk of that court and executing and filing bond payable to the school board with sufficient sureties, in the penalty of not less that (t)wo (h)undred (d)ollars ($200.00), conditioned upon the payment of all of the costs of appeal, within twenty (20) days of the receipt of the final decision of the board.

Miss. Code Ann. § 37-9-113(1)-(2) (Rev. 2013).

¶6. As seen above, the statute clearly outlines the need for the filing of a $200 “bond payable to the school board with sufficient sureties.” Id. We have previously addressed this exact issue of whether the failure of a movant to file the $200 bond warranted dismissal of the appeal. In Breland, we held: “Breland’s failure to file a timely bond is jurisdictional and is fatal to her appeal. This Court repeatedly has held that statutory appeal bonds are jurisdictional – that is, they relate to a court’s appellate jurisdiction.” Breland, 96 So. 3d at 65-66 (¶12) (quoting 5K Farms Inc. v. Miss. Dep’t of Revenue, 94 So. 3d 221, 227 (¶23) (Miss. 2012)). That said, the Mississippi Supreme Court “has recognized that a failure to meet the statutory requirements (of a bond) may be excused by extenuating circumstances.” Miss. State Pers. Bd. v. Armstrong, 454 So. 2d 912, 915 (Miss. 1984) (citations omitted). However, as was the case in Armstrong, we fail to find any extenuating circumstances that would warrant overlooking Lamberth’s failure to pay the statutorily required bond. Lamberth’s excuse is merely that he was not aware that a bond needed to be filed, despite the distinct and unambiguous statutory language requiring the bond payment. Citing a long-held tenet of law, we remind Lamberth that “ignorance of the law excuses no one.” Hoskins v. Howard, 214 Miss. 481, 497, 59 So. 2d 263, 269 (1952). Hence, the chancery court properly dismissed Lamberth’s appeal due to lack of jurisdiction, and we affirm the dismissal.

The COA went on to reject Mr. Lamberth’s challenge to the trial court’s dismissal with prejudice.

A few points:

  • If you’re going to take on representation of someone in a statutory appeal case, a good starting point is to read the statute. Let me reiterate that: read the statute. Everything you need to know to represent your client is there: the court with jurisdiction; the time limit to appeal; what you need to do (e.g., file a bond) to perfect your appeal; the basis for an appeal; and anything else pertinent to your representation is right there. And while you have your nose stuck in the book, peruse the annotations.
  • My ancient Seventh New Collegiate Dictionary defines “extenuate” as “to lessen or try to lessen the seriousness or extent by making partial excuses: mitigate.” If you’re going to claim extenuating circumstances, try to make sure that they have some substance, unlike that offered by Mr. Lamberth.
  • It’s nice to have a case citation to go along with the old “ignorance of the law is no excuse” saw. I have a feeling I may find a use for that case somewhere along the line.

25 Reasons Why Lawyers Hate to Practice Law and Go Crazy

March 18, 2016 § 4 Comments

An interesting article at catalogs 25 reasons why the practice of law can be corrosive and eat away at your well-being. You can find it at this link.

Some of the reasons include: being accountable for so many small details; having to work constantly and compete with peers; exhaustion from the constant conflict; the stress; the very high cost for making mistakes in mundane matters; the pay is not enough; student loans.

If you don’t seek out and find oases of peace and contentment the practice of law will eat you alive.

An article in the Washington Post relates that the rate of lawyers who have “hazardous, harmful alcohol-dependent drinking” problems is 20.6%, while the rate for all Americans is only 6.8%.

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