The Cost of Making a Bad Impression
February 27, 2017 § 2 Comments
Kenneth and Carolyn Moore were engaged for years in a boundary dispute with Roy and Donna McDonald and Ruth Belton (collectively the McDonalds). In 2010, the COA unanimously affirmed a chancellor’s ruling establishing the boundary line between them in Moore v. McDonald, 47 So.3d 1186 (Miss. App. 2010). The trial court’s judgment enjoined the Moores from disturbing the other parties’ peaceful enjoyment of their property.
The Moores apparently did not take the court rulings well. In 2013, they:
- used a tractor and auger to install fence posts in the McDonalds’ driveway, rendering it impassable, and forcing them to install a new gate to access their land via a different route;
- tore down the McDonalds’ fence;
- uprooted or cut down numerous large crepe myrtle trees on the McDonalds’ property;
- littered the mcDonalds’ property with debris; and
- threatened, intimidated, and bullied Donna.
The McDonalds filed a contempt action. Following a hearing, the chancellor found the Moores in contempt and awarded compensatory damages, attorney’s fees and expenses, and punitive damages in the amount of $10,000.
What I found interesting was the way that the Moores behaved at trial, and the record of their other conduct, that most assuredly had an adverse impact on the judge’s view of them.
When the issue of their net worth was before the court, it became clear that the Moores had failed to disclose some $17,000 in cash on hand in their 8.05 financial statement. Mrs. Moore became evasive about it to the extent that even the judge became involved (at ¶12):
Q. Where is the money, Ms. Moore?
A. Well, I’ve got the money. Don’t worry about that.
THE COURT: Well, you do have to tell — I’m worried about that.
Where is the $17,000?
MS. MOORE: My daughter has got it if you want to know the
truth about it.
Q. Do you not have any control about how that money is spent?
A. Well, it’s not spent yet so —
Q. Okay. But you didn’t list that on your 8.05, did you?
A. No, I did not list it.
Q. So, in fact, it’s not correct that this financial declaration reflects
everything that you have got?
A. Well I guess not.
When questioned about a bankruptcy filing that had derailed the case for months and forced the McDonalds to incur more attorney’s fees, Mr. Moore either refused to answer or claimed he had forgotten about omissions and inaccurate valuations.
The chancellor recorded her observations of the Moores’ demeanor and credibility, and it does not paint a pretty picture (at ¶14):
“The Court has reviewed the financial statement of the Moores, . . . [a]nd finds that it is by their own admission inaccurate. $17,000 that was borrowed and placed with their daughter is not included on the financial statement, and that really puts the whole financial statement into question, in addition to the whole line of questioning . . . of Mr. Moore and his dishonesty with the Bankruptcy Court.
The Court has no idea what the value of their property is. I don’t believe that the value is what they say it is. I don’t believe them period. I wish the Appellate Court — because I’m confident that this will be appealed — could sit in this chair and see the snickering periodically of the Moores, both. I remember making a note of that in the initial trial, as well as I have just noted for myself smug looks or at one point, I saw them — Mr. and Ms. Moore – laughing between the two of them while the Court was going on.”
If you think that kind of bad behavior escapes the attention of the chancellor, or that it will have no real impact, you need to think again. It does, and it can have a disastrous impact, as it did in this case.
In a case in my court one of the key witnesses was the ex-husband of one of the parties. His bias against her was emphatic and unmistakable. While he took his oath to testify, he glared at her hatefully. He referred to her by using her several former married surnames (e.g., Mrs. Smith-Jones-Johnson-Davis, etc.) until I cautioned him not to continue doing so. His tone about her was sarcastic and included cutting remarks about her. Standing on its own, I found his testimony incredible, but also it was contradicted in material parts by the credible testimony of one of the woman’s children. The ex-husband’s demeanor played a large role in my decision to ignore his testimony entirely.
This is a major reason why you should spend some quality time with your parties and key witnesses in advance of trial. You need to impress on them that the chancellor is judge and jury. The chancellor has immense power over the case. Chancellors are like everyone else when it comes to assessing someone’s credibility. Sarcasm, evasiveness, argumentativeness, bias; all will undercut your witness’s credibility, possibly fatally.