Ethics in Action

September 30, 2016 § 1 Comment

Ethical rules are clear in an academic context. Anyone who has practiced law, however, will tell you that applying them in the day-to-day scrum can be devilishly difficult.

For instance: You have discovered that, in a will you had prepared some time before your client’s death, you omitted one of his children whom he intended to be a beneficiary, and neither you nor he caught the omission. Now you are being called upon to probate the will, and you realize your oversight. What do you do?

A reader sent me this:

Attorney Parker Clifton was retained by Frank Henry to prepare estate planning documents. Clifton inadvertently omitted one of Henry’s daughters as a child on the first page of a pour-over will. The omission did not have any effect on the dispositive provisions of the document. At Henry’s death, Clifton was retained to probate the will. Before filing the document with the probate court, Clifton altered the first page to correct the error. After questioning by the daughter about the alteration, Clifton withdrew as counsel and self-reported his conduct.

The Ohio Board of Professional Conduct concluded that Clifton had violated Ohio R. Prof. Conduct 3.3(a)(1) (knowingly making a false statement of law or fact to a tribunal) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Based on these violations, and considering mitigating factors such as a lack of prior discipline and Clifton’s self-reporting, the Ohio Supreme Court adopted the Board’s recommendation and issued a public reprimand.

Warren Cty. Bar Assn. v. Clifton, 2016 WL 4553838 (Ohio Sept. 1, 2016).

I invite your comments on how you would have addressed this situation.

Did Mr. Clifton really have to do anything, in light of the fact that, ” … The omission did not have any effect on the dispositive provisions of the document” ? The omission was “on the first page” of the will; we don’t know whether the missing name appeared elsewhere in the document.

If she were completely omitted and the testator had intended for her to be included, that would be a major problem. Otherwise, mere failure to name her in one paragraph would probably be inconsequential if she were identified elsewhere in the document.

Here, Mr. Clifton’s sin was in the alteration of the document and the initial dishonesty. Had he acknowledged the error and then had withdrawn and offered himself as a witness to the true facts, we would not be reading about him here.

This is the kind of thing that haunts lawyers sitting alone in their offices, confronted with a simple mistake that could have far-reaching implications that could reach into the lawyer’s wallet.


Thanks to Attorney Hale Freeland

Pinning Down the Elusive “Clear and Convincing” Concept

September 28, 2016 § 4 Comments

Every ground for divorce except habitual cruel and inhuman treatment (HCIT) requires proof by clear and convincing evidence. HCIT requires proof by a preponderance of the evidence.

Where does evidence cross the line, so to speak, from preponderance to clear and convincing? When do you know you have tip the scales?

The latest pronouncement on the subject of which I am aware came in the case of Mississippi Commission on Judicial Performance v. Shoemake, handed down by the MSSC on April 14, 2016, in which the court said:

¶26. “Clear and convincing evidence” is such a high evidentiary standard that it surpasses even the standard of “overwhelming weight” of the evidence. In Interest of C.B., 574 So.2d 1369, 1375 (Miss. 1990); Moran v. Fairley, 919 So. 2d 969, 975 (¶ 24) (Miss. Ct. App. 2005), certiorari dismissed as improvidently granted. The United States Supreme Court has placed an “intermediary standard” between “mere preponderance of the evidence” and “beyond a reasonable doubt.” Addington v. Texas, 441 U.S. 418, 423-24, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). In Carver, 107 So. 3d at 969-70 (¶ 20), we cited the Fifth Circuit’s “useful definition” of the “clear and convincing” evidentiary standard. Clear and convincing evidence is

[t]hat weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.

Id. (citing In re Medrano, 956 F. 2d 101, 102 (5th Cir. 1992) …

That’s a lot of words to throw around if you have to argue or brief the point, but when you are in that position it’s better to have more words than fewer.

Still, it seems to be a somewhat elusive concept, susceptible to second-guessing on appeal. It brings to mind the US Supreme Court case Jacobellis v. Ohio, in which Justice Potter Stewart concurred, opining that all obscenity was constitutionally protected except “hard-core pornography,” the definition of which he rendered famously thus:

“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” [Emphasis added]

Maybe clear and convincing evidence is something that we just “know it when we see it.” Like hard-core pornography. Sort of.

If you think that “clear and convincing” is somewhat touchy-feely, try to stretch your brain around “beyond a reasonable doubt.” In fact, I challenge you to find a Mississippi case that defines the concept. I once defended a client in Justice Court on a charge of malicious destruction of personal property. The State had circumstantial evidence placing my client at the scene where before he appeared the property was undamaged, and after he left it was damaged. We had an eyewitness who was there and testified he watched the defendant the whole time, and he never touched or even came near the damaged item. The judge said, “I have grave doubts that this man did it, but I find him guilty.” So a grave doubt is still beyond a reasonable doubt, I guess. Good luck finding any authority on grave doubt.

Pending R 59 Motion = No Appeal, Part Deux

September 27, 2016 § Leave a comment

Only a few weeks ago, we talked about the concept that if there is a pending R59 motion the trial court continues to have jurisdiction, and, until it is disposed of, any attempt to appeal will  be dismissed for lack of jurisdiction in the trial court. That post is here.

Since then, in the case of Hoffman v. Hoffman, handed down September 6, 2016, the COA again dismissed an appeal in which there was a pending R59 motion. That case involved a divorce action between Brooke and Michael Hoffman.

We don’t need to address the law on the R59 point yet again. Instead, what I’d like to highlight is the procedural tangle that birthed this confusion. Here’s how Judge James described it in her opinion for a unanimous court:

¶2. On January 23, 2013, Brooke filed a complaint for divorce against Michael. On March 7, 2013, the trial court entered an agreed temporary order. On May 29, 2013, Michael filed a motion for contempt of the agreed temporary order claiming that he had been denied the opportunity to visit with his minor children.

¶3. On September 23, 2014, the trial court entered an order finding Brooke in contempt of the agreed temporary order. Also, on September 23, 2014, the trial court entered a separate order denying Brooke’s complaint for a divorce. The trial court instructed the parties to schedule a separate hearing for the purpose of taking proof relative to attorney’s fees. On October 2, 2014, Brooke filed a motion for reconsideration of the trial court’s order finding her in contempt.

¶4. On October 20, 2014, the trial court entered a final judgment denying the divorce. On October 21, 2014, Brooke filed a motion for reconsideration of the judgment denying the divorce. On October 22, 2014, Brooke’s motion for reconsideration of the trial court’s contempt order was denied.

¶5. Despite two notices of hearing filed by Brooke for her motion for reconsideration of the judgment denying the divorce, her motion has not been resolved and remains pending in the trial court, based on the record before this Court. On November 12, 2014, Michael filed a motion for attorney’s fees. Michael sought attorney’s fees for the prosecution of his motion for contempt as well as for the defense of the divorce action. A statement of legal fees was attached to the motion. On January 22-23, 2015, the trial court held a hearing on the issue of attorney’s fees. On January 27, 2015, the trial court entered a judgment awarding Michael attorney’s fees in the amount of $9,437.50 for prosecuting his contempt action. In the same judgment, the trial court also awarded Michael $22,134.59 in attorney’s fees he incurred in successfully defending Brooke’s divorce action.

¶6. On February 16, 2015, Brooke filed a motion entitled “MOTION to Amend[/]Correct Clarify Contempt Visitation Order, Temporary Order and Set Specific Visitation Schedule” (the “Motion to Amend”). Based on the trial-court docket, this motion has not been resolved and is pending in the trial court. On February 25, 2015, Brooke filed a notice of appeal of the trial court’s judgment awarding attorney’s fees.

You can tally up for yourself the layers of judgments, orders, and motions in this case. They illustrate for me how things can spiral into a convolution of complication almost before one is aware that things ate getting out of control.

Some judges will step in and try to untie the Gordian knot before it gets untie-able. But it’s really not the judge’s duty to do that. It’s your job as attorney to make a record that is comprehensible. If you don’t, your client might just end up paying the freight for a premature appeal. And remember: when you cost your clients money, they hate you; when you save them money, they love you.

The Line of Demarcation

September 26, 2016 § Leave a comment

We have talked here many times about what I call the “Valuation Date,” and which the appellate courts call the “Demarcation Date.” It’s the date in the course of a divorce when marital asset value ceases to accrue, and the value becomes separate.

Although the method of pinning down the demarcation date has veered around through the years, the current state of affairs is that it can be any date from separation through the date of the divorce judgment, within the discretion of the chancellor.

It’s good to be reminded of that from time to time, and the recent COA case, Randolph v. Randolph, decided September 6, 2016, not only is a nice reminder, it also includes a recap of the law on the point.

At the trial level, Betty and Daniel Randolph had entered into a consent to divorce and left it up to the judge to decide equitable distribution. In doing so, the chancellor set the demarcation date at the date of separation. Betty appealed, contending that the date adversely affected her share of the equitable distribution. Judge Fair wrote for the unanimous court:

¶9. “The law in Mississippi is that the date on which assets cease to be marital and
become separate assets — what we refer to . . . as the point of demarcation — can be ‘either the date of separation (at the earliest) or the date of divorce (at the latest).’” Collins v. Collins, 112 So. 3d 428, 431-32 (¶9) (Miss. 2013) (quoting Lowrey v. Lowrey, 25 So. 3d 274, 285 (¶27) (Miss. 2009)). A chancellor may consider a temporary order as the line of demarcation between marital and separate property. Id. (citation omitted) (citing Cuccia v. Cuccia, 90 So. 3d 1228, 1233 (¶8) (Miss. 2012)). Ultimately, however, the chancellor has the discretion to draw the line of demarcation. Id. at (¶10) (overruling Pittman v. Pittman, 791 So. 2d 857 (Miss. Ct. App. 2001), on its implication that temporary orders always provide the mark for demarcation).

¶10. The beginning date in calculating the accumulation of marital assets is December 10, 1995—the date of Danny and Rebecca’s marriage. The chancellor found the point of
demarcation was November 28, 2011—the approximate day Danny and Rebecca separated. During the divorce proceedings, no temporary order was entered. In Aron v. Aron, this Court stated that the chancellor “has discretion in determining whether acquisitions made in a marriage’s dying stages qualify as marital or separate property.” Aron v. Aron, 832 So. 2d 1257, 1259 (¶8) (Miss. Ct. App. 2002). Here, the chancellor reasoned that neither party provided any monetary support to the other post-separation, except the disability benefits paid on behalf of Emely. We find the chancellor was well within his discretion to use the couple’s separation as the point of demarcation.

Some thoughts:

  • Be sure to have your client testify as to what demarcation date should be assigned to each asset and why. This will have two positive effects: first, it gives the chancellor some evidentiary basis for the exercise of discretion; and second, it gives you something to argue on appeal if things turn out not to suit your client. Too often, we chancellors have nothing in the record other than our own judgment on which to base such a decision. If you don’t put it in the record, you can’t complain about it.
  • The demarcation date can have a drastic effect on the equitable distribution because the value of the asset used is as of the demarcation date. When the judge selects a particular date, he is not only saying that the accumulation of marital value is cut off as of then, he is also saying that the asset’s value is what it was on that date. Think about how retirement funds can fluctuate from day to day. It is a great benefit to your client if you can persuade the judge to select a date favorable to her.
  • Remember that the trial court is not bound to select a single, omnibus demarcation date to be applied to all assets. The court can select one date for the 401(k), another for the equity in the marital home, and yet another for the securities account. Sometimes that is the only practical, reasonable approach when the 401(k) statements end at one date, the home appraisal is another date, and the securities account statements end at yet another.

Reprise: Winning Your Child-Support Modification Case

September 23, 2016 § 1 Comment

Reprise replays posts from the past that you may find useful today:


October 23, 2012 § 2 Comments

There is more to proving your case for an increase in child support than simply proving that the payer’s income has increased.

In the case of Adams v. Adams, 467 So. 2d 211, 215 (Miss. 1985), the MSSC laid out 10 factors that the trial court must consider in determining whether an increase is warranted. You have to put proof into the record to support as many factors as apply in your case. The factors are:

  1. Increased needs caused by advanced age and maturity of the children;
  2. Increase in expenses;
  3. Inflation factor;
  4. The relative financial condition and earning capacity of the parties;
  5. The physical and psychological health and special medical needs of the child;
  6. The health and special medical needs of the parents, both physical and psychological;
  7. The necessary living expenses of the paying party;
  8. The estimated amount of income taxes that the respective parties must pay on their incomes;
  9. The free use of residence, furnishings, and automobiles; and
  10. Any other factors and circumstances that bear on the support as shown by the evidence. (citing Brabham v. Brabham, 226 Miss. 165, 176, 84 So. 2d 147, 153 (1955).

Expenses of private school are a legitimate factor to consider in modification proceedings, although the expenses are inadequate standing alone. Southerland v. Southerland, 816 So. 2d 1004, 1007 (¶13) (Miss. 2002).

Educational expenses may be properly considered with the increased needs of older children and their increased extracurricular activities in order to justify an increase in child support. Havens v. Brooks, 728 So. 2d 580, 583 (¶9) (Miss. Ct. App. 1998).

Remember that the keystone consideration for modification is a change in expenses of the child.  You must put on proof that establishes what the expenses were at the time of the judgment you are seeking to modify, as well as proof of the expenses at the time of trial.  Most importantly:  It is not adequate to prove only that the income of the paying parent has increased.

So here are a few tactics that may help:

  • Alter your 8.05 to add a column on both the income page and on the expenses pages for the date of the divorce or judgment you are seeking to modify. For example, if you are seeking to modify a judgment entered May 5, 2001, add a column headed “MAY 5, 2001.” Then get your client to itemize her income from back then, as well as the expenses. The expenses should show an increase; if they don’t, you have a probably fatal flaw in your case. It is not necessary that your client have documentation to support her figures, although that would help bolster her credibility. Your client can base her figures on her recollection, or, if she has an 8.05 from 2001, use that document. By juxtaposing the figures for the earlier date with current figures, you are making it easy for the judge to view how the expenses have increased. Also, you are providing proof in specifics, and not generally.
  • See if you can get the other side to admit the consumer price indexes for the relevant periods. You can use RFA’s or get the attorney on the other side to stipulate, thus establishing “the inflation factor” of Adams.
  • If you can’t prove the inflation factor any other way, ask your client based on her experience whether prices in general for goods and services for the children have gone up or down during the relevant period. At least you will give the judge something to sink her teeth into on the inflation point.
  • Do enough discovery to obtain copies of tax returns for the payer both at the time of the prior judgment and currently.
  • Be sure to discount expenses your client agreed to share. For instance, if your client agreed to pay one-half of the private school tuition, include only her one-half in the children’s expenses.
  • Expenses have to be reasonable. Don’t expect the judge to find a substantial increase in expenses based on activities that are out of proportion to the parties’ accustomed standard of living or are not necessary. A middle-income case in which the child has taken up a hobby of raising show ponies that cost thousand of dollars and involve expensive travel to shows around the country and abroad will likely receive negative attention, while a case in which the child has struggled in school and needs the added expense of tutoring and ADD medication would likely receive positive attention.

Plan your modification case for success. Remember that you can use summaries and compilations to present your evidence. And the clearer and better your 8.05’s are, the greater you chances of success.

Avoiding a Desertion Glitch

September 22, 2016 § 1 Comment

MCA 93-5-1 provides that the court may grant a divorce on the ground of “Willful, continued and obstinate desertion for the space of one (1) year.”

It’s often said that desertion is the easiest ground to prove as an uncontested divorce. It’s fairly straightforward:

  1. Separation without fault on the part of the complaining party;
  2. Continued, obstinate, intentional, and unjustifiable separation for more than a year.

But there’s another element that you need to include in your proof. In the case of Lynch v. Lynch, 217 Miss. 69, 63 So.2d 657, 653 (1953), the court said:

In matter of law, a deserted party must stand ready to receive the other back, if the offer to return is made in good faith, not otherwise, at any time before the statutory period has fully run. But when the desertion has ripened into a ground for divorce, the day of repentance has ended, and the one in whom is the right may refuse.”

In 21st-century language, this means that: (a) during the one-year desertion period, the deserted party must have been willing to allow the deserter to return home if a good-faith offer to return would have been made; and (b) after the one-year period has expired, that duty expires also.

So you must ask your client in his or her testimony to this effect: “If the other party had offered to give up his paramour, and to repent of his ways and to return home in good faith, would you have taken him back?” If the answer is affirmative, you will be successful if the other elements are proven and there is corroborating testimony.

I’ve seen some uncontested divorces come unravelled because the complaining party didn’t seem to have ever heard of this concept.

Before setting off for court, sit your client down and explain this requirement. What most clients think when confronted with the question is, “Horrors, I never want to see that monster again since he left me for that other woman!” Once they understand that the willingness to resume cohabitation, if there is a good-faith offer to reconcile, applies only to that one-year period now elapsed, they relax. There is no requirement to take the deserter back after the one-year period has expired — good faith or no.

The Conditional Ring

September 20, 2016 § 1 Comment

We talked here before about the status of the engagement ring in equitable distribution. To make a long issue short: the engagement ring is a gift that is the separate property of the wife and which is not subject to equitable division, although it is included in the wife’s estate as her separate property that could impact alimony and even the percentage of equitable distribution. You can read about it at this link.

Equitable distribution, of course, requires first a marriage and then a divorce. What, then, is the status of the engagement ring where there is no marriage and consequently no divorce.

That was the question before the court in the recent COA case of Cooley v. Tucker, decided September 6, 2016.

In that case, Tucker had given Cooley an expensive engagement ring. After a while, he broke off the relationship and requested that she return the ring to him. The proof included that: Cooley wore the ring continuously after she received it; Tucker insured the ring and listed himself as the sole owner of the policy with no mention of Cooley; the parties’ relationship became strained and troubled; and no wedding date was ever set, and no wedding plans were ever made.

When Cooley refused to return the ring, Tucker filed a replevin action in chancery court. The special chancellor ruled that the gift was a conditional one, rather than a completed, final, inter vivos gift. He found in Tucker’s favor, and Cooley appealed. Judge Ishee wrote for the court:

¶8. Cooley asserts that the chancery court erred in its determination that the ring was a conditional gift rather than an inter vivos gift. The chancery court properly cited Johnson v. Collins, 419 So. 2d 1029, 1030 (Miss. 1982), as guidance on the elements of a valid inter vivos gift, which are as follows: “(1) a donor competent to make a gift[;] (2) a voluntary act of the donor with donative intent[;] (3) the gift must be complete with nothing else to be done[;] (4) there must be delivery to the donee[; and] (5) the gift must be irrevocable.” Id. (citation omitted).

¶9. In Johnson, the properties at issue consisted of certificates of deposit that were given on the condition that the recipient obtain a divorce. Id. at 1031. The supreme court determined that because the divorce did not occur, the gift was not a valid inter vivos gift “because the gift was not complete with nothing left to be done.” Id.

¶10. Likewise, the cases relied upon by Cooley, Lomax v. Lomax, 172 So. 3d 1258 (Miss. Ct. App. 2015), and Neville v. Neville, 734 So. 2d 352 (Miss. Ct. App. 1999), are also divorce cases that question which party should be awarded the engagement ring post-divorce. In both cases, we determined that the wife should keep the engagement ring because “it was not a marital asset subject to equitable division.” Lomax, 172 So. 3d at 1262 (¶13) (quoting Neville, 734 So. 2d at 357 (¶19)).

¶11. This is not inconsistent with the required elements in Johnson. The engagement ring is to be considered an inter vivos gift conditioned upon the parties getting married – a condition that, obviously, occurred in the cases cited by Cooley. Id. at (¶11). Hence, in those cases, the Johnson requirements were met, including the element mandating that the gift be completed with nothing more to be done. Johnson, 419 So. 2d at 1030.

¶12. Here, the chancellor ultimately determined that “[t]he engagement ring was a conditional gift presented in contemplation of a marriage that did not occur.” It is from this determination that the chancellor awarded Tucker the ring. This conclusion is supported by Mississippi caselaw and by fact. We cannot find that the chancellor “was manifestly wrong, clearly erroneous, or applied an erroneous legal standard.” Buford, 832 So. 2d at 600 (¶14). This issue is without merit.

¶13. Cooley requests, in an alternative argument, that this Court create new precedents under which trial courts would determine ownership of an engagement ring following a broken engagement. We decline to do so. Existing Mississippi gift law adequately addresses cases such as this, and we will not deviate from the path set before us at this time.

Judges Barnes and Carlton both wrote dissenting opinions, joined in part by Griffis and James.

Unless the MSSC grants cert and chooses a different route, then, the law of engagement rings sans marriage will follow existing Mississippi gift law.

The Good Neighbor Policy

September 19, 2016 § Leave a comment

No, this post is not about the Franklin Roosevelt administration’s policy toward Latin America. It’s about real-life neighbors and how we all would like to see them treat one another.

The Kendall, King, Mullen, and Greenwood families (we’ll call them “the Kendalls”) owned land traversed by Coleman Road, which was at one time a public road, but which had been abandoned by the county board of supervisors. After it was abandoned, the Kendalls allowed Kirsh and Gayle Mullen May to use the road. But that stopped in 2013, when they prevented the Mays from doing so.

The Mays filed suit for a prescriptive easement. After a trial, the chancellor concluded that they had failed to meet the burden of proving what amounts to adverse possession of the right-of-way, and so he denied their claim. In his ruling, the chancellor ordered the Kendalls to provide the Mays with a key to the gate blocking the road, and to allow them use of the road, notwithstanding his negative ruling on the prescriptive easement relief. He said:

While this Court has determined as set forth above that [the Mays] have no right of ownership in Coleman Road, Chancery Court is a court of equity [and] can require the parties in a legal proceeding such as this to do that which is reasonable and fair. Defendants in their final brief in this matter cited Patterson v. Harris, 239 Miss. 774, 785, 125 So. 2d 545, 550 (1960) wherein it was stated: “The law should, and does, encourage acts of neighborly courtesy. A landowner who quietly acquiesces in the use of a path, or road, across his uncultivated land, resulting in no injury to him, but in great convenience to his neighbor, ought not to be held to have thereby lost his rights.” Defendants allowing [the Mays] the right to use Coleman Road in the past was the right and neighborly thing to do and this use did nothing to harm Defendants’ ownership in Coleman Road.

The Kendalls, having won the battle but lost the war, appealed. Their sole issue on appeal was, in essence: Huh? Can he do that?

In Kendall, et al. v. May, decided August 16, 2016, the COA predictably reversed and rendered. Judge Wilson wrote for a somewhat unanimous court, Judge James concurring “in part without separate written opinion”:

¶9. Thus, the only issue in this appeal is whether, despite the Mays’ inability to establish a prescriptive easement, the chancellor had authority to order the defendants to give the Mays a key to the gate and to allow them to use the road. In granting that relief to the Mays, the chancellor cited Patterson v. Harris, 239 Miss. 774, 125 So. 2d 545 (1960). In Patterson, Harris claimed a prescriptive easement based on a lengthy period of use of a private road over the Pattersons’ land. See id. at 784-85, 125 So. 2d at 550. The Court held that he was not entitled to an easement because his use had been permissive, not hostile or adverse. See id. at 787-88, 125 So. 2d at 551-52. The Court reasoned:

The law should, and does, encourage acts of neighborly courtesy. A landowner who quietly acquiesces in the use of a path, or road, across his uncultivated land, resulting in no injury to him, but in great convenience to his neighbor, ought not to be held to have thereby lost his rights. It is only when the use of the path or road is clearly adverse to the owner of the land, and not an enjoyment of neighborly courtesy, that the landowner is called upon “to go to law” to protect his rights.

Id. at 785-86, 125 So. 2d at 550 (quoting Weaver v. Pitts, 133 S.E. 2, 3 (N.C. 1926)). Therefore, “[i]t is a recognized rule of law that where the use of a private way by a neighbor is by the expressed or implied permission of the owner, the continued use is not adverse and cannot ripen into a prescriptive right.” Id. at 786, 125 So. 2d at 550.

¶10. Thus, the law does not authorize courts to compel “acts of neighborly courtesy” in particular cases, which is essentially what the chancellor did here. Rather, it encourages voluntary acts of courtesy among neighbors by making clear that such courtesies will not result in a forfeiture of property rights. The rationale is that if permissive use were allowed to “ripen into a prescriptive right,” neighbors would be far less willing to permit one another to use their lands to begin with. In the present case, this underlying policy requires us to uphold the defendants’ right to refuse to allow the Mays to continue to cross their lands. The chancellor’s order of a right of access and a key to the gate would discourage neighborly courtesy in the same way as a prescriptive easement.

¶11. In short, the law grants the defendants a right to exclude others, including the Mays, from their property. Accordingly, the chancellor had no equitable authority to order them to give the Mays a key and access to their property.We therefore reverse and render judgment in favor of the defendants.

To their credit, the Mays filed a motion “to confess the appeal,” in which they stated that they had decided not to cross-appeal the denial of the prescriptive easement, and they acknowledged that they could find no case law or statutory authority to support the chancellor’s order that they be given a key and access over the road. (¶6)  The MSSC left it up to the COA to decide what to do with the motion, which required the parties to brief the uncontested issue, and the COA to rule on it. Kudos for professionalism to counsel for the Mays. Head-scratch to the MSSC.



Dispatches from the Farthest Outposts of Civilization

September 16, 2016 § Leave a comment


Settlement Announcements: What Could go Wrong?

September 14, 2016 § 4 Comments

The COA’s memorable decision in Pearson v. Browning, 106 So.3d 845 (Miss. App. 2012), is notable for the fact that it reversed the trial court because the counterclaiming party had not been served with a R81 summons for trial. I think most chancellors up to then — and even now — believe that once you invoke the jurisdiction of the court by filing a pleading (particularly a pleading on offense), you have submitted yourself to the jurisdiction of the court, and no further process is necessary, only notice per R5.

The reversal did not resolve the dispute between the parties, though. They went right back at it, and found themselves back in trial on contempt issues before the same chancellor. On November 5, 2013, the chancellor again ruled against Dennis Pearson, who appealed yet again. This time he contended that the original judgment rendered October 13, 2005, although styled as an “agreed” judgment, included terms not embraced in the settlement announcement and was not signed either by him or his attorney, and so was ineffective.

The COA affirmed in Pearson  v. Browning, handed down August 16, 2016. Judge Irving wrote for the court:

¶8. Dennis argues that the October 13, 2005 “agreed” modification order was invalid
because he did not agree to its terms and that neither he nor his attorney signed the order, as required by Uniform Rule of Chancery Court 5.03. Rule 5.03 states: “Every consent Judgment must be approved and signed by counsel for all parties to the suit who may be represented by counsel and interested in or affected thereby before being presented to the Chancellor for his signature. The Court may also require the parties to sign.”

¶9. Dennis argues that “[i]t is clear from looking at the transcript of August 16, 2005[,]
. . . that the agreement read into the record differed from the agreement as later written in the October 13, 2005 ‘Agreed Order.’” However, Dennis makes no specific argument regarding what is different. The chancellor’s findings of fact and conclusions of law on this issue state that the October 13, 2005 agreed order “is a mirror image of the parties’ agreement as read into the record.” Dennis only complains about the portion of the order granting Patricia all equity in the marital home. However, Dennis clearly agreed to this, as well as the other provisions of the order, during the August 16, 2005 hearing.

¶10. During the August 16, 2005 hearing, Dennis’s attorney stated into the record, “We
have reached an agreement regarding all issues contained in the pleadings.” Counsel then proceeded to detail modifications to the visitation schedule; the requirement that within sixty days, Patricia would refinance the marital home, Dennis would quitclaim his interest in the marital home to her, and she would be responsible for all mortgage payments on the home; the parties’ agreement to waive any contempt issues regarding past-due bills or visitation; and each parent’s right to claim one child as a dependent for tax purposes. The parties were then placed under oath and questioned by the chancellor about the modifications. Dennis’s testimony was as follows:

Q. [Dennis,] did you understand what the attorneys read into the record as
your agreement?
A. Yes, I do.
Q. Was that your agreement?
A. That’s correct.
Q. Do you understand that this agreement will be put into writing and will
become the court’s order?
A. Yes, I do.
Q. And you understand that failure to follow the agreement could result in
a contempt charge against you?
A. I do.

¶11. In ruling on Dennis’s motion to set aside the agreed order as invalid, the chancellor found Dennis’s signature on the agreed order unnecessary as “surplusage,” since the agreement had been read into the record and agreed to under oath by both parties. Also, in finding no merit to Dennis’s argument that the order was inconsistent with the settlement agreement read into the record, the chancellor stated in his findings of fact and conclusions of law:

The next day after the hearing (October 14, 2005), Dennis signed a Quitclaim Deed at a bank. This act by Dennis is consistent with the agreement of the parties in the transcript. This Quitclaim Deed transfers Dennis and Patricia’s interest in the marital home and property to Patricia and her present husband, Steven. Dennis now claims that the property was conveyed to Patricia in exchange for Patricia waiving her interest in the Thrift Savings Plan and retirement. This is inconsistent with the August 16, 2005 transcript, the October 13, 2005 Agreed Judgment of Modification, and Dennis’s act of conveyance in signing the Quitclaim Deed one (1) day after the Judgment.

¶12. This Court addressed a similar issue in McDonald v. McDonald, 850 So. 2d 1182
(Miss. Ct. App. 2002), aff’d on cert., 876 So. 2d 296 (Miss. 2004). In McDonald, the wife
filed for modification of the visitation schedule that was established at the time of her and her husband’s divorce. Id. at 1185 (¶3). A hearing was held, and both parties agreed to the new schedule. Id. at (¶4). However, the husband later refused to sign an agreed order. Id. at (¶5). The wife filed a “Motion for Entry of Agreed Order.” Id. The chancellor signed and entered the order without the husband’s or his counsel’s signature. Id. at 1186 (¶5). The husband appealed, arguing the “agreed” order was invalid, as he did not sign it and did not agree with its terms. Id. at 1188 (¶18). We agreed with the husband “that there must be consent for a consent decree.” Id. at (¶21). However, we also noted that “[a] consent judgment is in the nature of a contract,” and is binding as such. Id. at 1189 (¶25). Despite the husband later changing his mind, we found that at the relevant time for consent—when the settlement terms were announced in open court—the husband did agree to the settlement, and his agreement at that time was sufficient to be contractually binding. Id.

¶13. Specifically, we held that the circumstances of announcing in open court the settlement of the dispute that is the purpose for that hearing, with a recital of the terms of the settlement into the record, followed by an agreement to end the hearing, reflects an intention to be bound at that time. Absent any showing that the final written order did not reflect the agreement announced in court, or any identification of a matter cognizable under [Mississippi] Rule [of Civil Procedure] 60 that could lead to setting aside a consent decree after [its] being entered—and neither showing exists here—we find that the parties were bound by their agreement even before it was reduced to a formal written order. McDonald, 850 So. 2d at 1189 (¶¶25-26).

¶14. While neither Dennis nor his attorney signed the agreed order, the hearing transcript reflects that Dennis understood the agreement that was read into the record and that he understood that the agreement would be put into writing and become the court’s order. His attorney made no objection at the hearing to the entry of the order. The supreme court has found that proceedings recorded by a court reporter are sufficient to prove agreement by the parties. See Samples v. Davis, 904 So. 2d 1061, 1066 (¶15) (Miss. 2004) (“If parties reach an agreement, the agreement containing the terms should be signed by the parties’ attorney(s) or in appropriate cases, the parties, or recorded by the court reporter.” (Emphasis added)). Dennis has not provided any proof that the agreed order did not reflect the terms of the settlement agreement read into the record. Therefore, the settlement agreement announced in court and later reduced to writing was sufficient evidence of the parties’ consent to be bound. This issue is without merit.

So the case would appear to turn on Dennis’s failure to spell out in detail exactly how the judgment varied from the announcement. I think it’s laudable that the chancellor went to the trouble of addressing Dennis’s attack on the then-eight-year-old-judgment, given the prior appellate history of this case. I am sure the chancellor was trying to ensure no more appellate ricochets.

Still, I wonder why no one pointed out that Dennis should have raised this issue of the validity of the 2005 judgment by filing a notice of appeal within 30 days of that judgment. ‘way back in 2005 — now more than ten years ago and counting. Is this really a jurisdictional argument he is making, or is this a ministerial omission that could have been cured with a R59 motion?

This case highlights why I don’t like settlement announcements. It seems that one party is always looking for a way to wriggle out of them, and they often find lawyers willing to take their money to aid them in the attempt. Words spoken are never as precise as words reduced to writing. Better to reduce the agreement to writing so all can see and edit, and then have everyone sign. That’s my position, and I’m sticking to it.

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