Reprise: The Artful Withdrawal

January 31, 2017 § Leave a comment

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


November 21, 2011 § Leave a comment

We’ve talked here before about the proper procedure to withdraw from representing a client.

It often happens that the judge signs an order letting the attorney out, and in the same order sets the case for trial. That can cause problems for the remaining attorney and client, as was the case in Turner v. Turner, decided by the COA on November 1, 2011.

The Turner litigation spanned 4 years of conflict between Jane and Michael over a divorce and custody. There were trial dates set and continued, and intervening pleadings, culminating in a trial date on November 12, 2009.

On the last date set for trial, Michael appeared and saw his attorney talking first with counsel opposite and then the chancellor. He learned that his attorney had made a motion ore tenus to withdraw, even though UCCR 1.08 requires a written motion and notice. There also was not five days’ notice to opposing counsel or Michael, as required in MRCP 6. The judge signed an order on November 12, entered the next day, allowing Michael’s attorney to withdraw over counsel opposite’s objection and continuing the divorce trial to December 8. That order is the only record of what transpired that day. According to Michael, his attorney took him to a conference room where his attorney told him of the withdrawal and offered assistance in finding new cocunsel; however, Michael said that the attorney did not advise him of the reset trial date, and the attorney later testified that he had no recollection whether he had advised Michael of the trial date.

On December 8, 2009, court convened for the divorce and Michael was not present. The record showed that he had never missed any prior scheduled proceedings. The chancellor granted Jane a divorce on the ground of habitual drunkenness, and awarded her custody, marital property and attorney’s fees.

Michael timely filed a motion under MRCP 59 and 60 to set the divorce aside for lack of proper notice of the trial setting. The chancellor refused, citing MRCP 5. Michael appealed.

The majority COA opinion rejected the rationale that MRCP 5, which essentially provides that notice to an attorney is imputed to the client, was applicable here. Citing Fairchild v. GMAC, 254 Miss. 261, 265, 179 So.2d 185, 187 (1965), the opinion held that an attorney who has moved to withdraw cannot at the same time continue to exercise authority on behalf of the client with respect to other matters. “While ‘withdrawal is prospective [and] does not erase those steps in the proceeding already taken,’ withdrawal likewise prevents an attorney from taking future steps on behald of his client.” Id. The Turner opinion stated at ¶21 that “We find [Michael’s attorney] could not simultaneously withdraw as Michael’s representative and be ‘counsel for the defendant’ for purposes of notice of the December 8 hearing.”

The COA admonished trial judges to follow UCCR 1.08 and MRCP 6 in entertaining motions to withdraw, and found that due process was lacking in this case. At ¶25, the court prescribed the solution for future cases:

” … [I]n cases where permission to withdraw is granted outside of the presence of the requesting attorney’s client, to avoid future notice problems, it is certainly permissible for a chancellor to enter a written order scheduling a future hearing, which expressly conditions the requesting attorney’s withdrawal only upon submission of proof to the court that he or she has given notice of the subsequent hearing to the client. Another suitable method, under this circumstance, would be to allow withdrawal of counsel subject to the condition that subsequent papers may continue to be served upon counsel for forwarding purposes as the judge may direct, unless and until the client appears by other counsel or pro se.”

In my opinion, the problem in this case could have been avoided if the defendant had been required to sign off on the order that let his attorney out of the case and set the trial date. He would have been hard-pressed to argue later that he did not have notice of the trial date. That’s the practice we try to follow in this district. Of course, we also try to follow UCCR 1.08 and MRCP 6 in these situations, but sometimes things come up at the last minute, and, in those cases we try to document as best we can.

The majority opinion in Turner provoked staunch dissents from Judges Russell and Griffis. Russell attacked the chancellor’s grant of a divorce, denial of visitation and other relief. Griffis took issue with the majority’s due process rationale.

Denial of Divorce: What is the Standard of Review?

January 30, 2017 § Leave a comment

The recent COA decision in Gwathney v. Gwathney, decided January 10, 2017, is notable for the fact that it was an appeal from a chancellor’s decision denying the appellant a divorce. She had proceeded on the ground of habitual cruel and inhuman treatment (HCIT). You can read the decision for yourself. It’s instructive on the subject of what it takes to support a finding of HCIT.

The COA, by Judge Ishee, deferred to the chancellor’s findings of fact:

¶9. “[A]s the trier of fact, [the chancellor] evaluates the sufficiency of the evidence based on the credibility of the witnesses and the weight of their testimony.” Holladay [v. Holladay], 776 So. 2d [662] at 676 (¶62) [(Miss. 2000)]. We do not find that the chancellor was manifestly wrong or that he applied an erroneous legal standard. This opinion should not be construed as though a chancellor could never find cruel and inhuman treatment under the same or similar circumstances. Instead, we simply hold that it was within the chancellor’s discretion to consider the particular nuances of this case, weigh the evidence, and determine that the proof fell short of habitual cruel and inhuman treatment. To hold otherwise, we would have to improperly substitute our view for the chancellor’s. Because that would be beyond the scope of the standard of review, [Fn omitted] we affirm the chancellor’s judgment.

Fair enough. But it appears that there was some discussion among the judges as to whether the COA could act as “Super Chancellors” in a denial of divorce case, substituting its collective judgment for that of the trial judge who observed the demeanor and credibility of the witnesses. I say that because one judge, Wilson, “concurs in part and in the result without separate written opinion,” and because of the inclusion of a lengthy footnote at the end of the opinion that may have been intended to address Judge Wilson’s concerns. Here is the footnote (omitted above) in its entirety:

In Kumar v. Kumar, 976 So. 2d 957, 960 (¶13) (Miss. Ct. App. 2008), this Court stated that “[t]he chancellor’s determination of whether a spouse’s conduct rose to the level of cruel and inhuman treatment is a determination of law” that we review de novo. In so doing, we relied on Potts v. Potts, 700 So. 2d 321, 322 (¶10) (Miss. 1997), and Reed v. Reed, 839 So. 2d 565, 569 (¶13) (Miss. Ct. App. 2003). In Potts, the Mississippi Supreme Court cited Bland v. Bland, 629 So. 2d 582, 586 (Miss. 1993), and held that a chancellor’s findings regarding whether a spouse’s “conduct rose to the level of habitual cruel and inhuman treatment . . . is a determination of law, and is reversible where the chancellor has
employed an erroneous legal standard.” Potts, 700 So. 2d at 322 (¶10) (emphasis added). However, nothing in Bland appears to support the concept that a chancellor’s factual determination is a question of law. Instead, the Supreme Court stated that “[e]specially in the divorce arena, the chancellor’s findings will not be reversed unless manifestly wrong.” Bland, 629 So. 2d at 587. And no portion of Bland addressed a chancellor’s conclusion regarding whether conduct qualified as cruel and inhuman treatment. Fully cognizant of our place in the hierarchy of Mississippi courts, we do not comment on the subject out of any form of criticism, but to note our awareness of the precedent, and to explain our reliance on the more unequivocal command that an appellate court is “required to respect the findings of fact made by a chancellor” where they are “supported by credible evidence and not manifestly wrong [–] . . . particularly . . . in areas of divorce.” See Mizell v. Mizell, 708 So. 2d 55, 59 (¶13) (Miss. 1998) (quoting Newsom v. Newsom, 557 So. 2d 511, 514 (Miss. 1990)).

I will leave that there for you to ponder for the next time you have that issue on appeal.

One thing to add: HCIT is arguably the most difficult ground to prove despite the fact that most people think it is easy because of its preponderance-of-the-evidence burden, and they see it as a “catch-all,” one-size-fits-all ground to use when nothing else quite fits. Nothing could be more inaccurate. As you can read in Gwathney, it takes a particular specie of proof to support a finding of HCIT. And the days are long gone when a chancellor could grant an HCIT divorce because “It’s obvious that these parties need a divorce.”

Dispatches from the Farthest Outposts of Civilization

January 27, 2017 § Leave a comment


When You Are An Imminent Peril to Your Client

January 25, 2017 § 1 Comment

Earlier this week I saw a piece on a news show about the increasingly rampant practice of thieves stealing tax refunds by filing false tax returns.

In one case, a woman learned that the outlaws had filed a tax return in her name claiming thousands of dollars in fake deductions that resulted in a refund — to them and not her — of $26,000. The refund was directed to a blank (prepaid) credit card where it can not be traced. Of course, the victim had to go through much travail to undo all the damage.

In another case, a man’s tax return with all of his dependency exemptions was hijacked for $5,000.

A tax expert came on screen and said that all a thief requires is the taxpayer’s Social Security Number (SSN), and the number of each co-filer and dependent.

Okay. Let that sink in. All that is required is the SSN’s.

Think about how many documents you have in your possession that are full of your clients’ SSN’s. Every tax return has the taxpayer’s SSN on every single page — sometimes in multiple places. Loan applications have them. Social Security earnings reports and other communications have them.

When you file an 8.05 financial statement and do not redact those SSN’s, you are sending your client’s personal information unprotected out into the world. When you produce unredacted records in discovery, you are violating your clients’ confidences. When you introduce information into evidence that includes SSN’s, you are exposing your clients to fraud.

This is something I have discussed here before. It’s serious, and it has serious implications for you. It won’t be long before PI lawyers discover a fertile new field for liability: lawyers who violate their clients’ financial confidentiality and integrity by not observing either the MEC confidentiality rules or the simple, common-sense precaution of redaction.

It seems like every week I have to caution a lawyer to redact confidential information from documents being introduced into evidence. In one case, we had to take an hour-long recess to allow 10 years of tax returns to be redacted. That should have been done long before the trial date.

The MEC rules make it clear that, if confidential information is filed, it is considered that the client has waived confidentiality. So when you file unredacted information, you have waived confidentiality for your client. Did you have authority to do that? Haven’t you committed an ethical violation when you did it without your client’s express permission?

When Less is Not Better

January 24, 2017 § 1 Comment

You know those annoying R81 linking continuance orders? The ones that you have to have entered on the return day and every successive continuance day to preserve your process? (R81(d)(5)).

This is what many of them look like to me:

The hearing on this matter is continued to the 8th day of February, 2017, at 9:00, a.m.

I think it should say in addition that the defendant (respondent) was called three times at the designated time, and he did not appear. Why? Because he could come up later and claim he was there all along and no one called out to let him know his case was up to be heard. The only record of what happened is the court’s order (unless you are in one of those rare districts where the docket call is on the record).

What about determination of heirship judgments? If you need to continue, and you simply recite that the matter is continued, a person claiming heirship can later pop up and claim that he or she was there and no one called him into the courtroom. Oops. No record to contradict it.

Often in chancery the only record you will have of what transpired is the order or judgment you present to the court. You should want it to be airtight, so you should include all the fact-finding and procedural recitations that the proceedings support. For instance:

  • In an uncontested divorce with a custody claim. Put on proof of Albright factors and address them in your judgment.
  • In an uncontested divorce with some property and alimony claims, put on proof of Ferguson and Armstrong factors, and add findings to your judgment.
  • The proof you present of those factors does not have to be elaborate. It just needs to be enough to justify the court’s signing off on the judgment you present.
  • In a case where the defendant appeared on a previous date or two and agreed to continuance(s), recite that history in your order or judgment.
  • If you published process, recite when, where, and how often published, and that no responsive pleading or other response was made.

The more detail you add, the more successful you will be later when the other party wakes up, realizes he has missed the train, and gets a lawyer to try to rescue him by filing a R59 or 60 motion. Just remember that whatever you recite in your order or judgment has to reflect what really transpired. You won’t get a chancellor to sign off on Albright findings when you never asked your witness the first question about them.

Appealing from a Special Master’s Ruling

January 23, 2017 § Leave a comment

The COA’s decision in In the Matter of J.W., decided January 3, 2017, is not likely to go down as a leading case in Mississippi jurisprudence, but for chancery practitioners in particular, it’s one you need to bear in mind.

To make a short story even shorter (the opinion is only three pages long), J.W. appealed from a finding made by a special master that he should be involuntarily committed to the custody of the Mississippi Department of Mental Health. The special master followed his findings with an “Order of Admittance after Hearing.” J.W. filed a R59 motion, but the COA does not tell us what the outcome of that was.

No matter. The COA dismissed the appeal for lack of jurisdiction because no chancellor ever adopted the special master’s findings in a court order. As the COA’s opinion by Judge Fair concludes:

¶5. “The court may appoint one or more persons in each county to be masters of the court, and the court in which any action is pending may appoint a special master therein.” M.R.C.P. 53. “[A] master’s report has no effect until it is either accepted or rejected by the chancellor.” Davison v. Miss. Dep’t of Human Servs., 938 So. 2d 912, 915 (¶5) (Miss. Ct. App. 2006) (citing Evans v. Davis, 401 So. 2d 1096, 1099 (Miss. 1981)). Here, there is no order by the chancellor accepting the special master’s report, and there has been no ruling on J.W.’s motion to reconsider. Because there is no final, appealable judgment, we lack jurisdiction and must dismiss. See Newson [v. Newson], 138 So. 3d [275], at 278 (¶11) [(Miss. Ct. App. 2014)].

The big deal here is that many districts around the state employ special masters routinely to handle child support and contempt cases per MCA 9-5-255. It’s an effective tool to free up courtroom time for more complex litigation, and to reduce waiting time for all kinds of hearings. When you get your findings and even a so-called “order” from your special master, however, it’s my opinion that you do not have either an enforceable judgment or a final, appealable judgment unless and until the chancellor has accepted the master’s report. That’s because of the language of MCA 9-5-255(8), which essentially tracks R53.

Another thing you need to keep in mind is that R53(g)(2) specifically directs that:

“The court shall accept the master’s findings of fact unless manifestly wrong. Within ten days after being served with notice of the filing of the report any party may serve written objections thereto on the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as provided by Rule 6(d). The court after hearing may adopt the report or modify it or may adopt the report in whole or in part or may receive further evidence or may recommit it with instructions.”

In Sims, et al. v. Mathis, handed down May 24, 2016, the COA held that it is the duty of the objecting party under R53 not only to file timely, specific objections, but also to set them for hearing and bring them before the court. In those special-master child-support cases, then, any objection needs to be filed within ten days of notice of the master’s findings, and the lawyer or party filing the objections needs to set the objections for hearing and bring the matter on for hearing. If that is not done, the court “shall accept the master’s findings of fact unless manifestly wrong.”

All of the foregoing applies not only to mental commitments and child-support proceedings, but also in every case in which a special master is appointed by the court. Mathis was a partition suit. Special masters are appointed in a wide range of chancery matters.


January 20, 2017 § 3 Comments


An Object Lesson in Deed Draftsmanship

January 18, 2017 § 1 Comment

When Cynthia and M.L. Culley conveyed a 26.7-acre parcel of land to J.E. Fowler in 1969, the deed included the following language:

LESS AND EXCEPT therefrom that portion of the above described property which is contained in Riverwood Drive and which is described in easement executed this fate by grantors herein in favor of the City of Jackson, Mississippi.

A dispute arose between Suzannah McGowan and Stephen and Rowena Carmody, with both claiming ownership of the property through the Culleys. The special chancellor granted a partial summary judgment concluding that the deed was unambiguous and did not convey the excepted property described above. The Carmodys appealed.

In Carmody v. McGowan, decided January 3, 2017, the COA affirmed, with the opinion by Judge Fair:

¶2. A court interpreting a deed follows the same process as it does with contracts. Conservatorship of Estate of Moor ex rel. Moor v. State, 46 So. 3d 849, 852 (¶12) (Miss. Ct. App. 2010). We begin by looking at the language of the instrument itself as contained within its “four corners.” Pursue Energy Corp. v. Perkins, 558 So. 2d 349, 352 (Miss. 1990). “When an instrument’s substance is determined to be clear or unambiguous, the parties’ intent must be effectuated.” Id. “If the reviewing [c]ourt finds the terms of the contract to be ambiguous or subject to more than one interpretation, the case must be submitted to the trier of fact, and summary judgment is not appropriate.” Epperson v. SOUTHBank, 93 So.
3d 10, 17 (¶20) (Miss. 2012).

¶3. The deed at issue states that the Culleys “do hereby sell, convey and warrant unto J. E. Fowler the following described land and property lying and being situated in the First Judicial District of Hinds County, State of Mississippi, and being more particularly described as follows . . . .” This is followed by a single-spaced, indented description of a 26.7-acre tract, which concludes with the words:

LESS AND EXCEPT therefrom that portion of the above described property which is contained in Riverwood Drive and which is described in easement executed this date by grantors herein in favor of the City of Jackson, Mississippi.

It is undisputed that this refers to the property now in dispute. The Carmodys point to what immediately follows the above-quoted language, where the deed is no longer indented and returns to double-spaced lines, and recites that:

The warranty of this conveyance is subject to an easement for street purposes, executed this date herein, in favor of the City of Jackson, Mississippi, which easement is for an extension of Riverwood Drive.

Several other preexisting easements are then excepted from the warranty, and the deed concludes normally with signatures and acknowledgment.

¶4. The Carmodys argue that the deed should be read as a whole. See, e.g., Cherokee Ins. v. Babin, 37 So. 3d 45, 48 (¶8) (Miss. 2010). That is undoubtedly true, but they present no real argument as to how the warranty exclusion conflicts with or alters the meaning of the explicit and unambiguous “less and except” exclusion from the conveyance. The Carmodys contend only that the “less and except” clause renders the warranty exclusion redundant and that there is no apparent reason the grantors would want to retain ownership of the disputed parcel while selling the land surrounding it. These arguments invoke familiar canons of contract construction, but they are applicable only where the deed is first shown to contain some ambiguity. Pursue Energy [Corp. v. Perkins], 558 So. 2d [349] at 352 [(Miss. 1990)]; 26A CJS Deeds § 180 (2011) (“Construction aids are available only to interpret ambiguity in the language of the instrument . . . and are not to be invoked to contradict the plain language of the deed.”).

¶5. The Carmodys do not explicitly argue that the deed is ambiguous – indeed, the word does not even appear in their briefs on appeal. “The mere fact that the parties disagree about the meaning of [an instrument] does not make [it] ambiguous as a matter of law.” Turner v. Terry, 799 So. 2d 25, 32 (¶17) (Miss. 2001). Nor are we “at liberty to infer intent contrary to that emanating from the text at issue,” as the words employed by the parties are “by far the best resource for ascertaining [their] intent.” Facilities Inc. v. Rogers-Usry Chevrolet Inc., 908 So. 2d 107, 111 (¶7) (Miss. 2005). Likewise, redundancies do not make a deed ambiguous. See, e.g., Thornton v. Ill. Founders Ins., 418 N.E.2d 744, 747 (Ill. 1981).

¶6. “An ambiguity is defined as a susceptibility to two reasonable interpretations.” Dalton v. Cellular S. Inc., 20 So. 3d 1227, 1232 (¶10) (Miss. 2009). We can see no reasonable interpretation of the deed, read in its entirety, that does not give effect to the plain and unambiguous qualification that the conveyance is “less and except” the disputed property.

¶7. We conclude that the trial court correctly found the deed to be unambiguous and that the disputed property was expressly excepted from the conveyance upon which the Carmodys’ claim depends. The chancery court therefore properly granted summary judgment to McGowan.

I think that what the Carmodys unsuccessfully were trying to articulate was the argument that one may not on the one hand exclude something from the conveyance while at the same time making the warranty of the conveyance subject to the thing excluded. Either: (1) the easement is excluded (“Less and except …”), and therefore is not conveyed; or (2) the subject property in its entirety is conveyed, but subject to the easement. I think they were trying to say that the two provisions are irreconcilable. And, they noted, why would Fowler have wanted to hang on to ownership of a little chunk of the tract that was subject to an easement? If all of that is what they were getting at, I think they had a good point.

But, as Judge Fair points out, Carmody’s argument was more along the lines that the two provisions were merely redundant, which gets us nowhere, because an instrument may have many redundant provisions and not be ambiguous.

At any rate, more careful draftsmanship would have avoided this swivet. Either exclude the easement as the special chancellor found here, or expressly include it and make the conveyance subject to it. A little thought into how the property should be conveyed can go a long way toward avoiding problems for your client and/or successors in interest down the line.

It’s Alive!

January 17, 2017 § 5 Comments

“It’s alive! It’s alive! It’s alive!”  — Mary Shelley, Frankenstein

Only last year I posed the question whether the venerable and seldom-used Bill of Discovery (BOD) in chancery were dead. That post dealt with the COA’s decision in Kuljis v. Winn-Dixie, Montgomery, LLC, in which the court affirmed a chancellor’s dismissal of a BOD filed by a plaintiff seeking information to determine whether a viable cause of action existed against the grocery-store chain. The judge ruled that the matter should be brought in circuit court and pursued via discovery there.

At the time I questioned whether the decision portended the death of the BOD, and I pointed to (former chancellor) Judge Fair’s dissent in its defense.

The issue arose again in a recent case decided January 10, 2017, Graham v. Franks, et al., and Judge Fair, writing this time for the majority, held that the BOD is, indeed a viable procedure in chancery. Here’s how he addressed it:

¶9. This appeal hinges on Franks’s assumption in his Rule 12(b)(6) motion that complaints for discovery and accounting do not state a cause of action in and of themselves, as Franks has never challenged any particular element of either claim. The dispositive question therefore appears to be whether a complaint that seeks only discovery or an accounting states a cause of action under Mississippi law.

¶10. It is beyond dispute that a complaint for an accounting is a valid cause of action under Mississippi law: “A Mississippi chancery court holds the authority to hear a case for an accounting.” Univ. Nursing Assocs. PLLC v. Phillips, 842 So. 2d 1270, 1275 (¶14) (Miss. 2003); Crowe v. Smith, 603 So. 2d 301, 307-08 (Miss. 1992). The remedy sought by an accounting is the accounting itself “and a judgment for the amount found due upon the accounting.” 1A C.J.S. Accounting § 54 (2005). And “the jurisdiction of a court of equity over matters of account rests upon three grounds[:] the need of a discovery, the complicated character of the accounts, and the existence of a fiduciary or trust relation.” Phillips, 842 So.2d at 1275 (¶14) (quoting Henry v. Donovan, 148 Miss. 278, 114 So. 482, 484 (1927)). All of those appear to have been alleged in the Grahams’ complaint.

¶11. Next, we address the complaint for discovery in chancery, for the second time this year. [Fn 1] We are now presented with the issue of whether the pure discovery action – formerly a “bill of discovery” and now called a “complaint for discovery” – remains a viable and independent cause of action within chancery court jurisdiction. We hold that it does.

[Fn 1] See Kuljis v. Winn-Dixie Montgomery LLC, 2015-CA-00256-COA, 2016 WL 1203823 (Miss. Ct. App Mar. 29, 2016), reh’g denied (Aug. 23, 2016), cert. granted (Nov. 17, 2016).

¶12. In March of 1981 the Mississippi Rules of Civil Procedure were adopted by the Supreme Court of Mississippi, to become effective on January 1, 1982. Seven years later, in State Oil & Gas Board v. McGowan, 542 So. 2d 244 (Miss. 1989), the supreme court was presented with the question of whether the new rules had abolished the common law right to a “Bill of Discovery in Chancery.” It found that they had not:

The bill of discovery is one of the ancient bills used in equity practice. Griffith, Mississippi Chancery Practice, 1925, § 427 p. 422. The Board argues that the bill is no longer available as a discovery devise in Mississippi practice as it was abolished or rendered obsolete by the Mississippi Rules of Civil Procedure effective January 1, 1982. This Court disagrees with this premise.

Griffith, supra, addresses the Bill of Discovery:

But there is a distinct bill in chancery known, strictly speaking, as the bill of discovery, by the use of which disclosure may be required of material facts exclusively within the knowledge or possession of the defendant and which without such discovery no full and adequate proof of them could be made. It had its origin out of the common law rule that no party in interest was a competent witness in any case; and it began at an early date to be allowed in the court of chancery in order to relieve against what otherwise would have resulted in a denial of justice when it happened that the facts or the documents establishing a right or materially aiding therein rested in the exclusive possession or control of the opposite party; and, originally its office was simply to aid a pending suit at law or one about to be brought, and the chancery part of the proceedings were usually deemed as concluded upon the coming in of the full answer making the
disclosures or producing the documents sought. In other words, the obtaining of the discovery was the sole object and end of the bill, no relief other than the discovery being prayed. It was therefore purely ancillary to a trial in some other case and ordinarily in some other forum.

Id. at pp. 422, 423.

Rule 82(a), M.R.C.P. makes clear that nothing in the rules alters the jurisdiction of any court, nor is the power of any court to grant substantive relief changed from what it was before the rules.

It is true that the nomenclature of the legal practice was changed by the abolition of the names of the old writs and procedural names. M.R.C.P. Rule 2. See Dye v. State Ex Rel. Hale, 507 So. 2d 332, 337 n.4 (Miss. 1987). As such, the terminology of a “Bill of Discovery” has been rendered obsolete, and procedurally it is referred to as a “complaint.” However, the adoption of the rules affected procedure, not substance. The power and authority of the Chancery Court to grant the substantive relief of “discovery” remains viable and available although it has been broadened and simplified by M.R.C.P. 26-37. The need for this substantive remedy is evident by this lawsuit.

McGowan, 542 So. 2d at 248-49.

¶13. In addition to McGowan, only two Mississippi Supreme Court cases have addressed historical chancery court “bills” for relief in the context of the Mississippi Rules of Civil Procedure. In Leaf River Forest Products Inc. v. Deakle, 661 So. 2d 188 (Miss. 1995), the court relied heavily on McGowan, including the quotations above, in holding that the jurisdiction of a chancery court to grant a “bill of peace,” like a “bill of discovery,” had also survived enactment of the Rules of Civil Procedure. The more recent case of Moore v. Bell Chevrolet-Pontiac-Buick-GMC LLC, 864 So. 2d 939 (Miss. 2004), also relied on and quoted McGowan with approval.

¶14. While it is true that the complaint for discovery requires a meritorious underlying cause of action if it is to be the sole basis for equitable jurisdiction, [Fn 2] the chancellor observed that there were numerous ones here; the complaint was dismissed not because there was no underlying cause of action but because the complaint did not seek relief for one. The Supreme Court of Mississippi has recognized, however, that a complaint for discovery has discovery itself as the substantive relief sought – “the sole object and end of the bill, no relief other than the discovery being prayed.” McGowan, 542 So. 2d at 248. “Rule 82(a) [of the Mississippi Rules of Civil Procedure] makes clear that nothing in the rules alters the jurisdiction of any court, nor is the power of any court to grant substantive relief changed from what it was before the rules.” Id. at 249.

[Fn 2] See Davis v. Lowry, 221 Miss. 283, 292, 72 So. 2d 679, 681 (1954); see also James W. Shelson, Mississippi Chancery Practice § 18:2 (2016).

¶15. As both discovery and accounting remain independent causes of action under Mississippi law, and Franks has never argued the insufficiency of the Grahams’ allegations on any specific element of either, we conclude that the trial court erred in granting the motion to dismiss for failure to state a claim upon which relief can be granted. We remand the case for further proceedings consistent with this opinion.

In the right case, you might find that the Complaint for Discovery (formerly BOD) is just what you need to get the job done, and the issue is now settled (unless and until the MSSC sees it differently) that it is a viable procedure. Remember: it requires that you have a “meritorious underlying cause of action” that sounds in equity. It’s not enough to file a PI case in chancery seeking damages and add some incidental accounting claim so as to get your discovery relief via BOD. That will most likely simply get you bounced over to circuit court.

January 16, 2017 § Leave a comment

State Holiday

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