Who Pays the Cost of Expertise?

March 28, 2017 § 1 Comment

Stephen and Alaina Bullock separated in 2007, and were in divorce proceedings by 2008. When they finally appeared for trial in 2010, Alaina noted that she had yet to receive discovery responses (after around 3 years), but waived her right to them so as to get the matter over with. After a day of testimony, the chancellor realized he had a conflict and recused.

In July, 2011, the successor chancellor entered an order compelling Stephen to answer the discovery requests. On August 7, 2011, the chancellor entered an order appointing a forensic accountant to report on valuation of the parties’ rather extensive assets as of the date of the report, which he did on January 31, 2012. In reaction, Alaina hired her own forensic accountant, Levens, who produced a report that was “significantly broader in scope and detail than that of the court-appointed accountant,” including valuation of assets not mentioned by the court-appointed expert, the parties’ net worth, and final numbers.

In 2014, around six years into the pendency of the case, the parties appeared for trial, and Stephen asked for a continuance to answer the discovery that was now ready to enter first grade. The chancellor denied the request, and the trial commenced. Both experts testified. In his final ruling, among other things, the chancellor ordered Stephen to pay a large part of the fees charged by Alaina’s expert. Stephen appealed.

In the case of Bullock v. Bullock, handed down February 28, 2017, the COA affirmed on the assessment of expert cost. Judge Greenlee wrote for a unanimous court (Lee not participating):

¶24. Stephen asserts that the chancellor erred in assessing him half of Levens’s expert accounting fees. In Burnham-Steptoe v. Steptoe, 755 So. 2d 1225, 1236 (¶40) (Miss. Ct. App. 1999), this Court affirmed a chancellor’s refusal to require a husband to pay his wife’s accountant fees where a court-appointed accountant also testified, the wife’s expert based his calculations on the court-appointed accountant’s testimony, and the court could have derived the value of the asset based solely upon the court-appointed expert’s testimony. We have a different situation in the case at hand. Here, Alaina’s expert generated an independent report greater in scope than that of the court-appointed accountant, a report that included identifying genuine mistakes in the court-appointed accountant’s report as well as identifying the loan and investment that constitute the disputed marital assets on appeal. The chancellor stated that the two experts “supplemented” each other. Unlike in Steptoe, the contributions of Alaina’s expert were not entirely derivative and duplicative of the work done by the court-appointed accountant. The court relied on the combined work of the two experts, and the court’s determination on fees has Alaina and Stephen splitting the cost of both experts evenly. We also note that Stephen’s chronic resistance to meaningfully participating in discovery hampered both experts’ progress. We do not find that the chancellor abused his discretion in assessing Stephen half of Levens’s expert fees.

A few points to ponder:

  • If you’re going to hang your client with the extra expense of an expert in addition to the court-appointed expert, be sure that the expert is going to go above and beyond what the court-appointed one did. Merely to take what the court-appointed expert concluded and nick at the edges will only get your client minor relief at a dear price. Here, Levens was able to add substance that gave the chancellor a basis to go beyond what the court-appointed expert did.
  • It never ceases to amaze me how some lawyers cavalierly let their clients get months (and in this case, years) behind in discovery responses. Don’t they realize that they are asking for trouble? Do they think the chancellor is going to stand idly by, shrug her shoulders, and say, “Oh, well,” when confronted with a long-standing neglect to respond? At some point a price will be paid. Stephen paid it here.
  • It’s hard to imagine a case in which the parties are well-served by a six-year-divorce proceeding, followed by an appeal and a partial remand, which may well be followed by another appeal (not to mention the usual post-ruling motions at both appellate and trial levels). Not to say that I haven’t been involved in lengthy ones myself, but, honestly, if the lawyers can get the parties to answer discovery and do what needs to be done, the case can be brought to a merciful end.
  • Here’s a trick I learned from one of the all-time great Chancellors, John Clark Love of Kosciusco. When a party was overdue on discovery and the matter was brought to his attention on a motion to compel, he would inquire of the defaulting attorney, “How much time does your client need to file complete responses?” Invariably the lawyer would lowball the time, and Judge Love would encourage a realistic response. When a realistic date was finally arrived at, he would direct the prevailing attorney to prepare an order that would require the party to answer by that date, and for every day thereafter until the answers were filed, the defaulter would incur a $25 fine payable to the county. You can do the math; it doesn’t take very long for that to become a painful — and hopefully motivational — bite.

Four Judges, and a Remand Makes Five

March 27, 2017 § 2 Comments

When Jon A. Swartzfager and Thomas R. Saul had a disagreement over the sale of some land, Saul filed suit in chancery court for breach of contract, equitable estoppel, and promissory estoppel.

The chancellor of the district recused, and the MSSC appointed Special Chancellor #1. That judge granted partial summary judgment and conducted some proceedings, in one of which he declared a written instrument to be a valid, enforceable contract. Before he got to a trial, however, Chancellor #2 unfortunately died.

Enter Chancellor #3. This time, the judge did set the case for trial, and it was heard on November 29, 2012, and January 25 and April 8, 2013. Before Chancellor #3 could render a final judgment, he, too, died.

The MSSC appointed Chancellor #4, who huddled with the attorneys and entered an order memorializing the parties’ agreement that he could review the existing record and render a decision. Chancellor #4 did just that, finding that Swartzfager had breached the contract, and awarding damages of more than $200,000, which included $79,098.81 in prejudgment interest. Swartzfager appealed.

In the case of Swartzfager v. Saul, decided February 16, 2017, the MSSC reversed in part and remanded. Essentially, the court affirmed everything but the award of prejudgment interest, and remanded for the chancellor to recompute damages without the prejudgment interest.

Only thing is, Chancellor #4 is now retired and is no longer sitting as a senior or special judge, so he will not be available to  deal with the case on remand.

Enter Chancellor #5. Stay tuned.

A few interesting points from the decision by Justice Maxwell:

  • Swartzfager argued that the MSSC should review the case de novo because Chancellor #4 based his decision on testimony before previously-assigned chancellors; he also urged that the previous chancellors’ findings should be given no deference. The court rejected that claim at ¶18 on the principle of judicial estoppel. The parties had agreed to follow that procedure, and he is precluded from taking a contrary position at a later stage of the case.
  • Another point pressed unsuccessfully by Swartzfager was that it was error for the chancellor to adopt Saul’s findings of fact and conclusions of law verbatim. The court disagreed, pointing out that the judge made his own findings, including adopting some findings of previous chancellors. I might add that even if the chancellor had wholly adopted Saul’s findings, it was not error for him to do so. You can read a post about the subject here.
  • The reversal on the issue of prejudgment interest came about because Saul had not included a prayer for that relief in his complaint, and so he was precluded from getting that relief per MRCP 8. The court noted that, since the reversal was based on the state of the pleadings, and not on the merits, it did not need to address whether the damages were liquidated, or if there were bad faith, which are two of the bases necessary to support an award of prejudgment interest.
  • There’s a lot of substance in this case that you might find useful, including: what it takes for a writing to be a contract; equitable estoppel; emotional distress damages arising out of a contract dispute; and assessment of attorney’s fees in absence of punitive damages.

Reprise: How to Refresh Recollection

March 24, 2017 § Leave a comment

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

Refreshing Recollection

February 27, 2014 § 2 Comments

The forgetful witness can be the bane of even the most accomplished barrister. Faced with what could prove to be a fatal memory lapse, lawyers twist themselves into proverbial pretzels cajoling, wheedling, leading, suggesting, and — when those ploys don’t work — yelling, at witnesses whose memories somehow have escaped them altogether.

To compound matters, counsel opposite, perhaps stimulated by the scent of blood in the water, pounces shark-like with a confounding flurry of objections, insisting that since the witness says she does not remember, no further questioning on the point should be allowed.

It doesn’t have to be so complicated, however.

Mississippi law has long recognized the right of a witness to have her memory refreshed, and our law has allowed anything to be used to refresh independent recollection. Refreshing recollection is not limited to written documents. As MRE 612 states “If a witness uses a writing, recording or object to refresh his memory for the purposes of testifying …” Or, as a law professor eloquently put it, you can use a pencil or a flower pot, if that will do the job.

Bear in mind that the process of refreshing recollection is intended to restore the witness’s independent recollection of a matter. It is not a process of educating a witness about matters beyond his ken, nor is it a backdoor path to admission of an otherwise inadmissible item. Once the witness’s recollection has been restored, the witness continues her testimony based on her now-restored recollection, independent of the refreshing item.

Here are the proper steps:

  1. Establish that the witness is unable to recall a particular thing.
  2. Counsel may then use leading questions to refresh the witness’s memory (e.g., “Ms. Jones, don’t you recall telling me last week about the amount of money you deposited into that account?”) See, e.g., James v. State, 86 So.3d 286 (Miss. App. 2012). Also, whether to allow leading questions is entirely within the trial court’s discretion. Dorrough v. State, 812 So.2d 1077 (Miss. App. 2001).
  3. If the witness still can not recall, counsel may then show the witness the writing, recording or object, which the witness reads or looks at silently. An example: “Ms. Jones, let me hand you this deposit slip, and ask you to read it to yourself.”
  4. Now the lawyer asks again if the witness now remembers after looking at the writing.
  5. If the witness responds that she now recalls independently of the writing, her recollection has been refreshed and she may testify to that independent recollection, ideally not using the writing, recording or object further. I say ideally because there are plenty of reported cases in which a police officer, or deputy, or dispatcher has been allowed to continue to use case reports and notes after having recollection refreshed. See. e.g., King v. State, 615 So.2d 1202 (Miss. 1993).
  6. If the witness still can not recall after looking at the writing, then the lawyer may have to resort to MRE 803(5), which we will look at in a later post.

MRE 612 requires that the opposing party be provided with a copy of the item if it is used for refreshing memory while testifying, and to cross examine the witness about it, and to have relevant portions admitted into evidence. If, on the other hand, the witness uses an item to refresh before testifying, then it is within the court’s discretion whether counsel opposite should have a copy if the court determines that “… it is necessary in the interests of justice …” Any part of the item or writing that the court orders not to be admitted into evidence is required to be preserved in the record for appeal. The court may make any order it deems necessary to effect the intention of the rule.

The best evidence rule does not apply to writings used to refresh recollection. Hunt v. State, 687 So.2d 1154 (Miss. 1997).

The comments to the rule say that it was intended to end pre-rules confusion between simply refreshing the witness’s independent recollection (MRE 612) and laying the foundation for admission of a recorded recollection as an exception to the hearsay rule (MRE 803(5)). In my experience, that confusion sadly persists despite this rule.

In a nutshell, here is the distinction: (a) Rule 612 instructs us on how to refresh a witness’s present recollection. That is, the witness at the time of trial can testify as to his recollection of what happened, but his recollection needs to be refreshed before he can testify. After looking at the item, the witness’s recollection is restored, enabling him to testify from memory. (b) Rule 803(5) tells us what to do where a witness once had personal knowledge, but now has insufficient recollection to be able to testify, and the witness made an accurate record of his observations when the event was fresh on his mind.

An important caveat: Before you stick something under the witness’s nose to refresh his recollection, be aware of what it is that you are handing to your opponent, because that is what you are doing when you offer it to your client. In a case I tried years ago, a key witness was hazy about details of an important event that would affect the outcome of the case. In an effort to jog her memory, her lawyer asked her whether there was anything that would help her recall the details. She said she could recall if she could look at a sheaf of notes she had left on counsel’s table. Without even glancing at them, the attorney handed them to her, whereupon I demanded to look over the papers. There, in the witness’s own handwriting, were dozens of statements that contradicted her own testimony to that point, flatly contradicted her deposition testimony, and aided us immensely in her impeachment. And it was handed to us by her own attorney.

TPR and Adoption Post-2016

March 22, 2017 § Leave a comment

Late note: The Governor yesterday signed into law SB 2342, which made some adjustments to the TPR statute. The most significant to most of us is probably that a GAL is discretionary with the court in voluntary-release cases.

Two recent cases handed down from our appellate courts address TPR and adoption decisions by chancery courts. You can read the cases at these links:

Doe v. Doe, COA, decided February 7, 2017

Hartley v. Watts, MSSC, decided March 2, 2017

These decisions are mostly of historical interest now, because, effective April 8, 2016, the Mississippi Legislature completely revamped the TPR and adoption statutes. Both of the above cases were decided by chancellors under the pre-2016 law.

I say the decisions are “mostly of historical interest” because some of the old grounds for TPR and adoption are still viable under the new law, so you might find something helpful in either or both of them in a post-2016 case.

Most every district I know is treating cases filed before the new statute but not yet final as coming under the new statute. That’s because it’s not worth a reversal to discover that it should have been done that way in the first place. In most cases, that means going back to the drawing board and starting from scratch, or pretty close to scratch.

If you have been living under a rock and haven’t even realized that the law has changed, I encourage you to study the new statutes carefully. Those forms you have stored in your computer that you last revised in 2007 simply won’t do the job anymore. Oh, and by the way, there are some tweaks to the statutes pending right now in the legislature that will change a few things in the 2016 law.

A couple of lawyers asked why I haven’t posted anything here about the new law. Well, for one thing, I want to see how it settles into our practice and how it gets implemented in most places. That process is ongoing. I think the best way to approach it is to tiptoe through it with your chancellor, finding out for yourself what will and will not fly in your district.

For another thing, it would take several posts to explicate the new law, and that’s without any case law to help interpret. You can read the statutes and draw your own conclusions as well as I can. I think it’s better to let the cases come down from on high with guidance for us here at ground level. In the meantime, we are all kind of feeling our way along.

Bench Ruling or Opinion vs. Judgment: Which Controls?

March 21, 2017 § 3 Comments

Many moons ago, in another district, a chancellor ruled from the bench at the conclusion of a contested case in which I represented one of the parties. He directed the attorney on the other side to prepare a judgment for his signature, which she did. She presented it directly to him without any input from me, which is contrary to our long-standing practice in my home district.

When I received a copy of the judgment, I was shocked to see several provisions in it, favorable to the other party, that were never mentioned by the judge in his ruling from the bench. I immediately fired off a R59 motion asking the court to retract those offending parts of the judgment.

At our next encounter, the judge read my motion, removed his reading glasses, looked me in the eye, and said, “Son, are you saying that I didn’t bother to read my own judgment?” I stammered out a denial as graciously as I could. “It’s my judgment, no matter who prepared it, and it said exactly what I thought it should say.” That concluded my business for the day, and I exited, pondering what had just transpired on my 40-mile drive back to my office.

Chancellors such as I, who either rule from the bench or issue written opinions, and direct a lawyer to prepare a judgment, often hear similar complaints. The bottom line, though, is that there is no requirement for the final judgment or order to mirror exactly what the judge ruled.

The COA confronted a similar argument in the case of Guardianship of McPhail: McPhail and Portera v. McPhail, handed down February 28, 2017. Judge Barnes wrote for a unanimous court (Judge Greenlee not participating):

¶11. “The Mississippi Supreme Court has held that ‘a chancellor’s bench ruling is not final, but is subject to modification by that same chancellor.'” Hinson v. Hinson, 877 So.2d 547, 548 (¶5) (Miss. Ct. App. 2004) (quoting Grey v. Grey, 638 So.2d 488, 492 (Miss. 1994)).

The Grey case is directly on point. Hinson cites Grey, but was actually a case in which the COA rejected the appeal because only a bench ruling had been entered, with no corresponding judgment, and, since a bench ruling is subject to revision by the judge and is not final, there was no final, appealable judgment.

All of this is to say that, so long as the judgment or order conforms to and is within the pleadings and the proof, it matters not whether a particular provision of the judgment or order was explicitly addressed in the bench ruling or opinion.

When Another State has Jurisdiction Over Your Custody and Support Case

March 20, 2017 § 2 Comments

John Hamilton and Kidron Young were divorced from each other in Muskingham County, Ohio. The 2010 judgment granted custody of the parties’ daughter to Young.

Young moved to Mississippi with the child and registered the Ohio divorce judgment with the Lee County Chancery Court per MCA 93-25-81 and 83, as a prelude to making the Ohio judgment enforceable to the same extent as a Mississippi judgment. The July 30, 2013, nunc pro tunc to July 15, 2013, court order accepting the Ohio judgment recited that the court took jurisdiction “of all matters relating to the minor child, including, but not limited to: custody, visitation and support, pursuant to Section 93-25-101.” The order directed that it was to be “spread upon the minutes” of the Ohio court.

Hamilton, meanwhile, had filed an action to modify aspects of custody in the Ohio court. On August 21, 2013, that court entered an order ruling that, because Hamilton still resided in Muskingham County, Ohio, that court retained jurisdiction over the custody issues. The court approved an agreed judgment between the parties.

In November, 2014, the court amended the judgment again on recommendation of the Muskingham County Department of Job and Family Services to reduce Hamilton’s child support.

Young then filed a complaint in Lee County Chancery Court for modification of the September, 2013, and November, 2014, Ohio judgments. Hamilton responded with a timely motion to dismiss based on Ohio’s exercise of continuing, exclusive jurisdiction and his continued residence in that state. Following a hearing the chancellor ruled against Hamilton because: (1) the chancellor had had a conversation with an Ohio judge prior to entry of the July, 2013, order in which the Ohio judge had relinquished jurisdiction; (2) Lee County had granted full faith and credit and assumed jurisdiction based on the conversation; and (3) the Ohio court’s August, 2013, ruling that it continued to have jurisdiction was undated, and, therefore, not proper.

Hamilton filed for an interlocutory appeal. In Hamilton v. Young, decided February 16, 2017, the MSSC reversed and rendered, sending the case for adjudication back to Ohio.

You can read Justice Beam’s decision, which is an excellent exposition of the law of jurisdiction in these cases, for yourself.

I just want to make a few points:

  • Jurisdictional issues in custody and child support cases can be complex and confusing. My advice is to (1) read the statutes, and (2) Go to a source such as Bell on Mississippi Family Law for enlightenment. Although the law is fairly clear, how to apply it to the facts at hand is often anything but clear.
  • To make a long story short, UIFSA provides that, if one of the parents continues to reside in the state that issued a child-support order, that state has continuing, exclusive jurisdiction as long as the parent continues to live there, unless the parties agree to let the state of the other parent assume jurisdiction. In this case, since there was no agreement, Ohio retained jurisdiction, even though the child no longer resided there.
  • As for the UCCJEA, Ohio continued to have jurisdiction to modify its own judgments because Hamilton continued to live there. In order to have jurisdiction in Mississippi, the Ohio court would have had to have determined that Mississippi was the more convenient and proper forum, considering the factors in Ohio Code § 3127.21 (counterpart to MCA 93-25-207). Since that was never done, it was not proper for Mississippi to unilaterally assume jurisdiction.
  • What about that conversation between the two judges alluded to by the chancellor in his ruling? At ¶21, the court points out that there is nothing in the record recording that conversation, and written findings are required by MCA 93-25-101(b). That sort of informal discussion without the proper, written findings is simply not enough. Hint: if the judge doesn’t do it, you need to volunteer to do it for him or her.
  • The mere fact that you record a foreign judgment, even if no contest to the recording is made, is not enough to confer jurisdiction (¶¶22-25).

Window Shopping

March 17, 2017 § 2 Comments

Socrates’s Test of Three

March 15, 2017 § 5 Comments

I can’t vouch for the accuracy of this, but a friend sent it, and it’s so full of wisdom that I could not resist sharing it …

In ancient Greece (469 – 399 BC), Socrates was widely lauded for his wisdom. One day the great philosopher came upon an acquaintance, who ran up to him excitedly and said, “Socrates, do you know what I just heard about one of your students?”

“Wait a moment,” Socrates replied. “Before you tell me, I’d like you to pass a little test. It’s called the Test of Three.”

“Test of Three?”

“That’s correct,” Socrates continued.

“Before you talk to me about my student let’s take a moment to test what you’re going to say. The first test is Truth. Have you made absolutely sure that what you are about to tell me is true?”

“No,” the man replied, “actually I just heard about it.”

“All right,” said Socrates. “So you don’t really know if it’s true or not. Now let’s try the second test, the test of Goodness. Is what you are about to tell me about my student something good?”

“No, on the contrary.”

“So,” Socrates continued, “you want to tell me something bad about him even though you’re not certain it’s true?” The man shrugged, a little embarrassed.

Socrates continued, “You may still pass though because there is a third test – the filter of Usefulness. Is what you want to tell me about my student going to be useful to me?”

“No, not really.”

“Well,” concluded Socrates, “if what you want to tell me is neither True nor Good nor even Useful, why tell it to me at all?”

The man was defeated and ashamed and said no more.

 

Testamentary Capacity

March 14, 2017 § Leave a comment

Lack of testamentary capacity is a common line of attack against wills.

The recent COA case Estate of Gardner: Callington, et al. v. Gardner, decided February 21, 2017, includes a nice exposition of the law on the subject, which I am providing for you in condensed form — a sort of hornbook-ette on the subject. From the opinion by Justice Wilson:

¶21. “For a will to be valid, the testator must possess testamentary capacity.” Noblin v. Burgess, 54 So. 3d 282, 291 (¶32) (Miss. Ct. App. 2010). To have testamentary capacity, an individual must be of “sound and disposing mind.” Miss. Code Ann. § 91-5-1 (Rev. 2013). “Testamentary capacity is determined based on three factors: (1) whether the testator had the ability at the time of the will to understand and appreciate the effects of his act; (2) whether the testator had the ability at the time of the will to understand the natural objects or persons to receive his bounty and their relation to him; and (3) whether the testator was capable of determining at the time of the will what disposition he desired to make of his property.” In re Estate of Laughter, 23 So. 3d 1055, 1061 (¶20) (Miss. 2009). In addition, “[r]ecognizing that a testator may not always possess testamentary capacity, [the Supreme Court has] held that he may nevertheless execute a valid will during a lucid interval.” In re Estate of Edwards, 520 So. 2d 1370, 1373 (Miss. 1988). “The key to testamentary capacity is mental competency at the time the will is made.” Lee v. Lee, 337 So. 2d 713, 715 (Miss. 1976).

¶22. “The burden of proving testamentary capacity is on the proponents of the will, who can present a prima facie case simply by offering into evidence the will and the record of probate.” Laughter, 23 So. 3d at 1061 (¶18). “Once a prima facie case has been established, the burden of going forward shifts to the contestants to overcome the prima facie case.” Id. The ultimate burden of proof remains on the proponent, who “may . . . present rebuttal proof if necessary.” Edwards, 520 So. 2d at 1373. The Supreme “Court has held that the testimony of subscribing witnesses is entitled to greater weight than the testimony of witnesses who were not present at the time of the will’s execution or did not see the testator on the day of the will’s execution.” Id. “In fact, the subscribing witnesses to a will may testify as experts on the question of testamentary capacity.” Id.

¶23. “Furthermore, . . . opinions of lay witnesses regarding testamentary capacity [must] be supported by ‘facts as a basis for the witnesses’ conclusion.’” Estate of Rutland v. Rutland, 24 So. 3d 347, 353 (¶20) (Miss. Ct. App. 2009) (quoting In re Estate of Briscoe, 293 So. 2d 6, 8 (Miss. 1974)). “Overly broad or generalized testimony indicating a lack of capacity will be deemed insufficient where it is contradicted by competent evidence and is ‘obviously based upon the infirmities of advancing age rather than upon any abnormal conduct indicative of mental aberration.’” Id. (quoting Briscoe, 293 So. 3d at 8).

After noting that the contestants had offered only vague and general proof that the decedent’s physical condition was “terrible” at the time of making the will, the court continued:

¶24. … the children failed to come forward with evidence “to overcome the prima facie case” of testamentary capacity. Laughter, 23 So. 3d at 1061 (¶18). … physical weakness does not preclude one from making a will, and a bare and unexplained assertion that a testator’s mental state was “terrible” does not raise a jury issue as to his mental capacity.

The court next pointed to the specific testimony of the subscribing witnesses:

¶26. The subscribing witnesses to the will—Sanders and Roussel—had both known Richard for many years, and both testified that he was mentally alert and capable of understanding what he was doing when he executed his will. Sanders further testified that Richard was clear and specific regarding his wishes. Moreover, in addition to the absence of any evidence that Richard lacked testamentary capacity, we note that the mental capacity required to execute a general power of attorney is essentially the same as the capacity required to execute a will. See Dowdy v. Smith, 818 So. 2d 1255, 1258-59 (¶16) (Miss. Ct. App. 2002). With Linda’s encouragement, Sylvia took Richard to Sanders’s office for the specific purpose of signing a general power of attorney, and Sylvia testified specifically that she believed that her father had the mental capacity to sign the power of attorney. Yet neither Sylvia nor Linda was able to explain at trial why they thought Richard had the capacity to sign the power of attorney but not the will.

¶27. In short, the children presented no evidence that Richard lacked testamentary capacity at the time he executed his will. All testimony relevant to his mental capacity on March 2, 2009, indicates that he had sufficient capacity to execute both a general power of attorney and a will. Accordingly, the chancellor’s ruling granting Mae Otha’s motion for JNOV was correct as it relates to the issue of testamentary capacity. See Hayward v. Hayward, 299 So. 2d 207, 209-11 (Miss. 1974); Noblin, 54 So. 3d 291-95 (¶¶34-45); Rutland, 24 So. 3d at 351-53 (¶¶10-22); In re Estate of Pigg, 877 So. 2d 406, 410-11 (¶¶12-23) (Miss. Ct. App. 2003).

Prescription for an Easement

March 13, 2017 § 1 Comment

Mississippi is dotted with old churches that have fallen into disuse and even been abandoned as the congregation ages, moves away, and finds other associations. I posted about a typical example here only last month.

Some of the left-behind buildings are lovingly maintained by former members and family, but what keeps people involved with them in most cases is the church cemetery where ancestors and loved ones are interred.

Such was the case with Old Liberty Baptist Church, which had been established before 1854. In that year, Aaron Lott and his wife, Martha, deeded the 2 acres upon which the church had been built, and which included the adjacent cemetery, to the church’s “Committee of Arrangements.” The church later moved away, and the building was torn down, but the cemetery, which fronted on a public road, continued to be visited by people with an interest. Even so, there were only one or two burials there in the preceding 60-70 years. The cemetery was enclosed by a fence, with a gate that was accessible from the public road.

The Lott property, which surrounded the Old Liberty cemetery, descended to Johnnie Lott and his three daughters: Rita Deloach, Linda Douglas, and Cathy Grantham. After the daughters quitclaimed their interest to Johnnie, he later conveyed his interest to Cathy, reserving a life estate. “less and except 2 acres, more or less, comprising the cemetery.”

Johnnie Lott died in 2011, and in 2013, Cathy filed an instrument claiming that she controlled access to the cemetery. The Liberty Baptist Church formed an association to take responsibility for permanent maintenance, and the church deacons deeded its interest in the cemetery to trustees of the association for the purpose. The deed claimed a tract of 1.55 acres, as shown on an attached plat. Rita, sister of Cathy, participated in the process.

In the meantime, Cathy began locking the gate to the cemetery. After the lock had been cut off the gate seven times, Cathy’s husband removed the culvert and pushed dirt up blocking the gate.

Cathy filed suit, claiming that the cemetery property consisted of 1.25 acres, not the 1.55 acres claimed by the church. She claimed absolute authority and discretion in determining who, when, and how anyone should access the property. The association counterclaimed.

Following a trial, the chancellor granted the association title to the cemetery property by adverse possession, along with a prescriptive easement from the public road to the cemetery entrance. He also confirmed title in Cathy to certain other property in dispute. Cathy filed a R59 motion raising for the first time that she should be granted a prescriptive easement across the cemetery property, and a claim for slander of title. The chancellor overruled the motion, and Cathy appealed.

In Grantham v. Old Liberty Cemetery Association, decided February 21, 2017, the COA affirmed. On the issue of Cathy’s belated claim for a prescriptive easement, Judge Fair wrote for a unanimous court:

¶11. Grantham first argues she was entitled to a prescriptive easement across the Association’s property. “The evidentiary burden to establish a prescriptive easement is high.” King v. Gale, 166 So. 3d 589, 593 (¶20) (Miss. Ct. App. 2015). Grantham had to show by clear and convincing evidence she used the Cemetery tract to get to her property. Id. See Thornhill v. Caroline Hunt Tr. Estate, 594 So. 2d 1150, 1152 (Miss. 1992). Further, she had to prove her use was “(1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Id. (citations omitted). We note that she did not assert any claim for an “easement of necessity” because she has significant access to a public roadway, and makes claim for a “non-exclusive” prescriptive easement, even though exclusivity is a required element of a prescriptive easement.

¶12. The chancellor notes pointedly that Grantham denied any claim to the Cemetery land itself, only asserting the location of boundaries and easements to it and arguing that the Cemetery occupied 1.25 of the 1.55 acres the Association claimed. And there was no evidence presented that Johnnie, from whom she derived her title, ever claimed any ownership of the Cemetery. In her appellate brief, she restates that she “has decided not to appeal the determination . . . that the fence lying south [of] the access road is the cemetery’s south boundary, but does appeal the denial of her ‘non-exclusive easement’ over the road to access her property.” Grantham had stated her father always fenced his property, and that the northern boundary of the property she inherited is also the southern boundary of the Cemetery. She also testified that he had a concrete pad poured to feed his cows and admitted that the concrete pad stopped just south of the fence in the very southeast corner of the fenced-in area of the disputed property. Occasionally, Johnnie let the cows out through the Cemetery gate. Prior to her father’s death, Grantham returned to the property once or twice a month and had little knowledge of what was going on while she was away.

¶13. A “prescriptive easement,” as noted above, is an easement obtained by adverse possession over another’s land. Like any other adverse possession claim, an owner’s permission to use the easement defeats a party’s claim. See Kendall v. May, 199 So. 3d 697, 700 (¶8) (Miss. Ct. App. 2016). The general public (or at the very least the descendants of those buried in the Cemetery) had entered the Cemetery without interference and with implied permission of the church for more than a century – until Grantham locked it and removed the culvert. Anyone who had ancestors buried in the Cemetery had the right to enter onto “family cemetery” property and visit an ancestor’s grave as well as to be buried in the Cemetery. Grantham, a direct descendant of Aaron Lott, specifically has such a right, with the same permission as any other descendant of an ancestor buried in the Cemetery, to drive across roads crossing Cemetery property. She has presented no evidence of any open, notorious, or exclusive occupancy of any portion of the Cemetery property for more than ten years, as determined by the chancellor. Consequently, she is entitled to no greater or lesser interest in an easement over parts of the Cemetery than any descendent of anyone buried there.

I brought this to your attention for several points:

  • In order to establish a prescriptive easement, it must be shown that the elements of adverse possession have been met as to the easement property. That in and of itself is a high bar. To make it even higher, the burden of proof is by clear and convincing evidence. This opinion is a good reminder of what must be shown.
  • To me, the chancellor was exceedingly generous to entertain Cathy’s claim for a prescriptive easement, raised as it was for the first time on a R59 motion. You simply do not get to reopen the case to raise new legal issues and claims on a R59 motion that could and should have been litigated at trial, unless there is newly discovered evidence that was unavailable at trial. The COA does not elaborate on the basis for the R59 motion, so we are in the dark as to what motivated it, but if it was simply to assert a new issue, it was out of bounds.
  • Likewise, at trial Cathy took the position that she asserted no interest in the cemetery property. She reversed that position in the R59 motion and asserted a claim for a prescriptive easement. That maneuver was barred by judicial estoppel, which holds that one may not take one position at one stage of the proceedings, and then take a contrary position at a later stage.
  • Finally, Cathy asked for a “non-exclusive easement” to the cemetery. That was really unnecessary, as Judge Fair pointed out, because she was entitled to access the property along with everyone else with ancestors buried there.

The COA also affirmed the chancellor’s dismissal of both parties’ slander of title claims.

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