February | 2017 | The Better Chancery Practice Blog

Dispatches from the Farthest Outposts of Civilization

February 10, 2017 § Leave a comment

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Squatter’s Rights = No Rights

February 9, 2017 § Leave a comment

In February, 2009, Acey Huey deeded property he owned in a subdivision to his daughter, Fillisa.

On August 7, 2009, Acey signed off on a document entitled, “Repairing and Renting Agreement.” Acey and his brother Tom were named in the document as “Landlords,” and Tom’s daughter, Tommie, was denominated as “Tenant,” of the same property that had been conveyed to Fillisa. The agreement, which was prepared by Tommie’s godmother, provided in part: Tommie would pay rent of $150 per month and repair the property at her sole expense; the Landlords could not raise her rent or evict her without cause; if forced to leave for any reason she would be reimbursed for the labor and material she expended on the property, and for moving expenses and “pain and suffering.”

Filisa did not become aware of the agreement until 2012. In June of that year, she sent Tommie notice to pay rent or vacate, demanding $400 a month in rent, plus a $400 security deposit.

On July 25, 2012, Filisa conveyed the property to LeMorris Strong.

On July 27, 2012, the 2009 “Repairing and Renting Agreement” was filed in the county’s lis pendens records, attached to a “Notice of Subordination, Attornment and Non-Disturbance Agreement.”

On August 14, 2012 Strong recorded his deed from Filisa.

In November, 2012, Strong made written demand for Tommie to cancel the lis pendens notice, including a form to do so, as well as a copy of Mississippi’s Litigation Accountability Act (LAA), MCA 11-55-5.

In 2013, after Tommie had vacated the property, Strong filed suit to remove clouds from and quiet title to the property. Tommie counterclaimed. The chancellor granted Strong the relief he requested, and dismissed Tommie’s counterclaim. She also awarded Strong $3,917.14 in attorney’s fees and costs, ruling that the filing of the lis pendens notice and refusal to withdraw it constituted a violation of the LAA.

In Huey v. Strong, decided December 13, 2016, the COA affirmed with a unanimous opinion by Judge Fair, James not participating.

You can read the opinion for yourself. The point I want to make here is that you need to stop and think before you leap. I don’t know who filed that lis pendens notice for Tommie, but I hope it was the godmother who prepared the original agreement, and not an attorney. When you file a lis pendens notice you may be slandering title unless what you have filed is true, accurate, and has a basis in law. Tommie had a chance to withdraw it but did not, which ended up costing her nearly $4,000 she does not have, judging from the recitation of facts in this case. Here the COA holds that filing a false lis pendens notice can be a violation of the LAA. Damages were relatively small in this case, but they could have been huge.

Years ago, as a young lawyer (and before there was an LAA), a breathless client demanded that I file a mechanic’s lien notice against a subdivision developer only to learn soon after that the client had misrepresented the facts to me, and wanted it done as a vendetta because the developer had elected to begin using another contractor. I notified the client that I was withdrawing the lien and he could file one or anything else in his own right, but that I was not going to participate. My bad for leaping before looking and demanding some documentation or proof of the claim. Had that lien notice botched a sale, I might have been on the hook with my client for damages.

The Price of Breach of Trust

February 7, 2017 § Leave a comment

The law of trusts in Mississippi may be the least litigated area of our jurisprudence, judging from the paucity of reported cases on trust issues.

That’s why I was planning to do a post on the COA’s recent 30-page decision by Judge Barnes in Cassibry v. Cassibry, decided January 24, 2017. But Philip Thomas posted about the case on his excellent Mississippi Litigation Review and Commentary blog, so you can read his take at this link. At the trial level, the trustee was found to have violated the trust and was assessed a judgment in the amount of $144,865.86, plus post-judgment interest of eight percent per annum, and was ordered to pay $17,902 in costs and $28,500 in attorney’s fees. He was also ordered to transfer 7,757 shares of stock to the prevailing party. On appeal the COA affirmed but remanded for further proceedings on the issue of attorney’s fees, which the appellee conceded was not properly documented at trial.

One minor quibble with Mr. Thomas’s post: he refers to the trial court’s ruling as a “verdict,” but since it came from a chancellor and not a jury, it was a judgment. Not intended as a swipe at the knowledgeable Mr. Thomas. Just pointing this out for the young chancery lawyers and law students. Mr. Thomas will tell you that he spends most of his time in federal and circuit court, and not in chancery, so he can be forgiven the lapse into his more familiar verbiage.

Many trusts are extra-judicial, grant extremely broad discretion to the trustee, and waive accountings and other reporting. I guess that’s why relatively few are litigated. I had a case in my court years ago in which the beneficiary claimed a breach of trust because the trustee refused to disburse any money to him at all. The trust specifically gave the trustee unfettered discretion in that regard. The beneficiary also complained that the trustee had sold some of the assets of the trust; however, the trust gave him broad discretion in that area, also. The case fell to summary judgment and, to my knowledge was never appealed. It would have been interesting to litigate, since the were conflicting provisions as to which state’s laws controlled, and none of them were Mississippi.

An epic case in which the trustee was removed for non-monetary breach of duty to the beneficiaries is Wilbourn v. Wilbourn, decided April 24, 2012.

When the GAL Goes Beyond the Court’s Mandate

February 6, 2017 § 2 Comments

What is the court’s duty to address a GAL’s recommendations on matters not included in the court’s order appointing the GAL?

Angela Davis and her ex-husband, Gary Davis, shared joint legal and physical custody per an irreconcilable differences divorce judgment entered in 2004. In 2013, following an altercation between Gary’s then wife and one of the children, Angela sued him for termination of parental rights (TPR), or for modification of custody, and for an upward modification in child support. Gary counterclaimed for contempt and for modification to give him sole custody.

The chancellor appointed a GAL to make recommendations with respect to the TPR issue. The GAL recommended that Gary’s parental rights not be terminated, and went on to recommend that Angela have “primary custody,” with Gary having visitation, “because that is how they have been operating since the date of the divorce.”

The chancellor denied Angela’s prayers for TPR, for modification of custody and visitation, and for an increase in child support. He did order Gary to pay the children’s private school tuition. Angela appealed, and one of the issues she raised was that the chancellor’s ruling failed to address why he did not follow the GAL’s recommendation as to custody and visitation.

The COA affirmed in Davis v. Davis, handed down January 24, 2017. Here’s how Judge Lee wrote for the unanimous court (Westbrooks not participating):

¶19. In her third issue, Angela claims the chancery court should have followed the GAL’s recommendation as to the modification-of-custody/visitation issue, or it should have provided written findings as to why the GAL’s recommendations were not followed.

¶20. “Our supreme court does not require a chancellor to follow the findings of a GAL.” In re N.B., 135 So. 3d 220, 228 (¶35) (Miss. Ct. App. 2014) (citing S.N.C. v. J.R.D. Jr., 755 So. 2d 1077, 1082 (¶17) (Miss. 2000)). “However, ‘when a chancellor’s ruling is contrary to the recommendation of a statutorily required GAL, the reasons for not adopting the GAL’s recommendation shall be stated by the court in the findings of fact and conclusions of law.’” Id. (quoting S.N.C., at 755 So. 2d 1082 (¶18)).

¶21. Here, the GAL was appointed solely to investigate the termination of parental rights. The GAL recommended that Gary’s parental rights not be terminated, and the chancery court followed the GAL’s recommendation. Since the GAL was not appointed to investigate the modification-of-custody/visitation issue, we cannot find the chancellor erred in failing to state his reasons for not adopting the GAL’s recommendations regarding custody and visitation.

Some thoughts:

Make sure your GAL order is specific and clear as to which issues the GAL is required to serve. Angela’s appeal might have won the day had the GAL order been vague or general (e.g., ” … to make recommendations as to the best interest of the children …” ).
I’m not sure whether this issue has been squarely before the appellate courts before, but to me it’s definitely a new wrinkle in GAL jurisprudence.
Once again the term “primary custody” pops up in a case. In 2009, the MSSC ruled that the term “primary custody” and its permutations like “primary physical” and “primary legal” and “primary physical and legal” custody have no legal meaning in our law. You might recall that I posted here about it ‘way back in 2010. It’s not that big a deal in most cases, but, as I pointed out in that previous post, it can work some serious mischief in custody agreements and judgments. In my opinion, it’s better simply to purge the term entirely from your legal vocabulary than to use it heedlessly and have it ricochet fatally against a client or former client in later proceedings. In a recent custody case I heard, counsel for both parties used the term repeatedly. It was like fingernails on a blackboard to me.

“Quote Unquote”

February 3, 2017 § Leave a comment

“Under current law, it is a crime for a private citizen to lie to a government official, but not for a government official to lie to the people.” — Donald M. Fraser

“We have enjoyed so much freedom for so long that perhaps we are in danger of forgetting that the Bill of Rights, which cost so much blood to establish, is still worth fighting for.” — Oliver Wendell Holmes, Jr.

“I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.” — James Madison

Bills that Could Affect Your Chancery Practice

February 2, 2017 § Leave a comment

As I understand it, these are the pending bills that have made it out of committee. I tried to copy so as to preserve the hyperlinks to the bills, but was unsuccessful. You can find the text of the bills at this link. Also, some of the matters listed below apply to Youth Court, but I included them nonetheless because they may create some overlap with chancery, particularly in custody cases.

HB 476 Child abuse; require DHS to notify applicable military installation family advocacy program in certain cases.
01/25 (H) Title Suff Do Pass Comm Sub
Dixon

HB 481 Medical expenses; define admissibility during trial.
01/26 (H) Title Suff Do Pass
Gipson

HB 483 Multidisciplinary teams and child advocacy centers; provide information prepared by shall be confidential under certain circumstances.
01/31 (H) Title Suff Do Pass
Gipson

HB 489 % Mental health courts; authorize and provide for certification of.
01/26 (H) Title Suff Do Pass Comm Sub
Currie

HB 551 Pro se legal forms; provide that court-approved forms may be provided by public librarians and law librarians.
01/25 (H) Title Suff Do Pass Comm Sub
Reynolds

HB 605 Dept. of Child Protection Services; transfer of DHS functions to shall be completed by Jan. 1, 2018.
01/24 (H) Title Suff Do Pass
Dixon

HB 805 Supreme Court; authorize to have original jurisdiction for claims seeking injunctive relief against the state.
01/24 (H) Title Suff Do Pass
Baker

HB 806 Nonprobate Transfers Law of Mississippi; create.
01/31 (H) Title Suff Do Pass
Baker

HB 807 Jointly held property; authorize to be sold by broker in a commercially reasonable manner.
01/31 (H) Title Suff Do Pass
Reynolds

HB 843 Landlord-tenant law; revise certain provisions related to the nonpayment of rent.
01/24 (H) Title Suff Do Pass Comm Sub
Johnson (87th)

HB 849 Fiduciary Access to Digital Assets and Digital Accounts Act; create.
01/24 (H) Title Suff Do Pass
Lamar

HB 853 Power of Attorney; revise to authorize parents to delegate for care and custody of a child.
01/31 (H) Title Suff Do Pass Comm Sub
Eubanks

HB1013 Department of Child Protection Services; make technical amendments to provisions of law relating to and give certain powers and duties to.
01/26 (H) Title Suff Do Pass Comm Sub
Dixon

HB1210 Youth Court; require to provide redacted copy of child’s record to child’s parent/guardian upon request of the parent/guardian.
01/30 (H) Title Suff Do Pass
Bennett

HB1211 Youth court prosecutor; require district attorney to appoint and require residency in county where youth court is located.
01/30 (H) Title Suff Do Pass
Bennett

HB1212 % Child Protection Services; authorize to have background check of home residents during emergency placement situation.
01/31 (H) Title Suff Do Pass Comm Sub
Gipson

HB1213 Youth court; authorize to utilize volunteer Court-Appointed Special Advocate (CASA) in abuse and neglect cases.
01/31 (H) Title Suff Do Pass
Bell (65th)

HB1366 Domestic abuse protection orders; revise appellate procedure.
01/31 (H) Title Suff Do Pass
Bain

HB1406 Marketable Record Title Act; enact.
01/31 (H) Title Suff Do Pass Comm Sub
Touchstone

SB2063 Appropriation FY2018; pilot programs for legal representation for indigent parents in child abuse cases.
01/05 (S) Referred To Appropriations
Dearing

SB2161 % Constables; revise fees charged by.
01/30 (S) Title Suff Do Pass Comm Sub
Burton

SB2302 % “Ban the box;” facilitate post-incarceration employment opportunities for nonviolent felons.
01/31 (S) Title Suff Do Pass Comm Sub
Barnett

SB2327 Conversion and Domestication; revise.
01/24 (S) Title Suff Do Pass
Tindell

SB2342 Termination of parental rights; technical corrections.
01/24 (S) Title Suff Do Pass Comm Sub
Tindell

SB2350 Business Corporation Act; technical revisions.
01/24 (S) Title Suff Do Pass
Tindell

SB2369 Youth court prosecutor; must be resident of the county and appointed by the DA.
01/26 (S) Title Suff Do Pass Comm Sub
Tindell

SB2388 Domestic abuse protection orders; revise appellate procedure.
01/24 (S) Title Suff Do Pass Comm Sub
Wiggins

SB2427 Code of Judicial Conduct; immunity for members of a special campaign committee.
01/27 (S) Title Suff Do Pass
Hopson

SB2483 Divorce; bona fide separation as a ground for.
01/24 (S) Title Suff Do Pass Comm Sub
Tindell

SB2520 Youth court records; parents have right to redacted copies.
01/24 (S) Title Suff Do Pass
Hill

SB2628 Court reporter; may be hired to record court proceeding.
01/31 (S) Title Suff Do Pass
Branning *

SB2644 Mental illness; revise acquittal and commitment for.
01/26 (S) Title Suff Do Pass Comm Sub
Hopson

SB2673 Guardian ad litem fees; failure to pay enforced as any other civil debt.
01/26 (S) Title Suff Do Pass Comm Sub
Tindell

SB2680 Abused and neglected children; clarify alternative of relative care.
01/31 (S) Title Suff Do Pass Comm Sub
Hill

SB2703 Divorce; domestic violence as a ground for.
01/24 (S) Title Suff Do Pass Comm Sub
Doty

SB2821 Youth court referees; appointed to a 4-year term.
01/31 (S) Title Suff Do Pass Comm Sub
Tindell

SB2842 % Mental health court intervention programs; authorize.
01/31 (S) Title Suff Do Pass Comm Sub
Branning