Reprise: Investing by the Fiduciary

September 29, 2017 § 1 Comment

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


July 30, 2012 § 3 Comments

Executors, administrators, guardians and conservators have a fiduciary duty to the beneficiaries or wards (trustees have their own, separate body of law, although they are fiduciaries also). The fiduciary’s duty (in the absence of explicit directions in a will) …

” … is to provide honest, intelligent management … [h]owever it might be more accurate to think of the [fiduciary] as a co-manager (and perhaps a junior co-manager at that) with the court being the other manager. The [fiduciary] can do very little without the prior approval of the court. The [fiduciary’s] responsibility is to be knowledgeable about the estate, to anticipate problems and dangers, as well as opportunities, to decide upon the intelligent and prudent thing to do, and then to go to the Chancellor to try to get the authority to do it.” Weems, Wills and Administration of Estates in Mississippi, 3rd Ed., §2.34, p. 65.

Absent directions in a will or court authorization, or specific authority by statute, the fiduciary has no authority to: bind the estate by contract such as a lease or note; purchase or sell real estate or any other asset; warrant title on behalf of the estate; borrow money for the estate; mortgage property of the estate; or even to continue a decedent’s business except to wind it up or as provided in MCA 91-7-173.

MCA §93-13-38 requires the guardian or conservator to improve the estate of the ward, and to “apply so much of the income, profit or body thereof as may be necessary for the comfortable maintenance and support of the ward and his family, if he have any, after obtaining an order of the court fixing the amount.” The duty of the fiduciary is to employ the funds in their hands profitably, and they may be liable on their bonds for failure to improve the estate.

Does that duty to improve the estate mean that there is a duty to invest?

The answer to that question, of course, is that every case is different, and several factors come into play, including:

  1. Whether the the amount of funds in excess of those needed in the immediate future to pay claims and administration expenses, and in the case of wards, the necessary, authorized expenses, make investment practical;
  2. The economic conditions in the markeplace;
  3. Whether in the case of a decedent’s estate that it will be open for a length of time that would make investment practical.

In the case of McNeil v. Hester, 753 So.2d 1075 (Miss. 2000), the court held that the fiduciary has no duty to invest because MCA 91-13-3 because that statute uses the permissive may rather than the mandatory shall.

But simply because there is no explicit statutory duty does not mean that not investing would be prudent. The fiduciary is under a duty to deal prudently with the estate, and in a given circumstance non-investment may be judged imprudent. MCA 91-13-3 says that the ” … fiduciary shall exercise the judgment and care under the circumstances then prevailing which men of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of the capital.”

MCA 91-13-3 and -5 allow certain investments to be made without specific authority of the court, giving the fiduciary some flexibility to park funds until a more prudent investment, if any, can be made. Those investments, unless prohibited by court order, include: time certificates of deposit; savings or other interest-bearing accounts of any state or national bank whose main office is located in Mississippi, and whose deposits are FDIC-insured; any state or federal savings and loan association whose main office is located in Mississippi, and the deposits of which are FSLIC-insured. Not included are credit union accounts, online banks, e-trade, Schwab or Fidelity, or the mayonnaise jar buried in the back yard.

Whether a given investment is prudent was the issue in the COA case of In re Estate of McGee, 982 So.2d 428 (Miss.App. 2007)in which the court held that, where the decedent had invested in the stock market for many years and the fiduciary had received his portfolio, which he put in the control of a reputable broker pursuant to court order, the fiduciary was not liable to the heirs when the portfolio declined in value after 9-11-01. The court pointed out that “administrators are not insurers or guarantors of the estate’s assets.” Citing Harper v. Harper, 491 So.2d 189, 198 (Miss. 1986).

So what exactly is and is not prudent? For guidance in addition to particular case law you might want to look at the Mississippi Uniform Prudent Investor Act, MCA 91-9-601- et seq., which actually applies to trustees, but would certainly be persuasive authority for any court to consider in weighing the prudence of any other fiduciary. Section 603 sets out factors for the court to consider as a standard of care. Other sections in the law address the duties of diversification, loyalty, impartiality, reasonability of cost, and care in delegation of management responsibility.

The attorney representing a fiduciary has a duty to advise him or her of the responsibilities involved, and to make sure that the fiduciary is acting prudently and in compliance with the law. The subject is more complex than the scope of this post, so consider this an introduction and prompt to study it in adequate depth to be of service to your clients.

[Much of the information here is derived from a presentation by Bob Williford, Esq. to the chancery judges last April]

September 27, 2017 § 3 Comments

Some reader(s) apparently have had too much time on their hands and nominated this blog for the Expert Institute’s Best Legal Blog Contest. In honor of whoever did this, I’m passing on this link where you can vote in the “Niche and Specialty Blog category.”

The contest is underway and ends on November 3, 2017, at midnight. Happy voting!

Trial by Checklist

September 26, 2017 § Leave a comment

If you’re a newcomer here, I want to acquaint you with the concept of what I call “checklists.” I’ve posted about it here numerous times. A post with a list of trial checklists is at this link. You can also find a checklists category up there on the right in the “Categories” search box.

We all know that the MSSC and COA have spelled out certain factors that the chancellor must consider to adjudicate custody, equitable distribution, alimony, and a host of other issues. The idea is that to help you make sure that you put on proof of each of the factors applicable to your case, you turn them into a checklist that is a template for your presentation of evidence.

As I said in a prior post:

Remember that these factors are the ones that must be decided by the judge in order to decide your case. In essence, the factors are the elements of the case that will determine its outcome. If you are not putting on proof as to each factor that applies in your case, you are running the risk that the Chancellor will find that there is not enough evidence to rule in your favor.

Practice Tip: When trying a case involving any of the foregoing issues, have a list of the factors applicable your case at hand, and methodically cover them in your questions for the witnesses. Give some thought to questions that will best develop evidence that will support a finding in your client’s favor for as many factors as possible, and how to minimize the impact of factors that are not in your favor.


Butting In

September 25, 2017 § 2 Comments

The Smiths, paternal grandparents of 3-year-old Zach, want to hire you to get custody of of him from his parents, who have been jailed over some meth charges. The Smiths just discovered that the Johnsons, the maternal grandparents, have already filed an action in chancery court to do that very thing, and the case is set for hearing in a week. What to do?

Your first thought is to file a counterclaim for the Smiths, seeking custody. But, after re-reading R13, you realize that counterclaims are between parties, and the Smiths are not parties.

You think then that maybe you should simply file a separate suit and ask the chancellor to consolidate them. That sounds kind of cumbersome, and leaves you and your clients out of the loop as to what is going on in the Johnsons’ original suit unless and until consolidation is granted.

Frustrated and on the verge of tears, wondering why you ever though law school was a good idea in the first place, you pace the floor of your office until an intern says, “Why don’t you file to intervene via Rule 24?” You scoff and dismiss the intern to go get the mail … and then you look at R24.

Voila! Intervention. It’s right there in the MRCP!

The first step in intervention is to file a motion to intervene in the action. The rule requires a “timely application.” The motion must state the grounds for the motion and must be accompanied by a proposed pleading setting forth the claim or defenses for which the intervention is sought.

Any party may intervene in an action:

  1. By right when a statute confers an unconditional right to intervene. So, obviously, the statutory right would be the ground for the motion; or
  2. By right when the applicant claims an interest in the subject matter of the suit and his ability to protect that interest may be impaired, unless existing parties can adequately protect that interest; or
  3. By permission when a statute confers a conditional right to intervene; or
  4. By permission when an applicant’ claim or defense and the main action have common questions of fact or law.

It is within the court’s discretion whether to allow the intervention. The court must consider whether the intervention will unduly delay or prejudice the rights of the original parties.

The Advisory Committee Notes cite authority to the effect that: (1) if one of the criteria for intervention by right are met, and there is a timely application, the court should grant intervention; (2) even if one or more of the criteria for permissive intervention are met, it is discretionary with the court whether to grant it; (3) any application to intervene must be timely, and the note cites the criteria the court must consider to determine timeliness; and (4) the determination of timeliness is in the trial court’s discretion and will not be overturned absent abuse of discretion.

Bottom line: You can’t just leap into the middle of an ongoing lawsuit without following R24.

September 22, 2017 § 5 Comments

Some reading and watching …

News of the World by Paulette Jiles. In post-Civil War Texas, Captain Jefferson Kyle is a circuit riding newsman who entertains small-town audiences by reading excerpts from major newspapers. He accepts an offer to return Johanna, a 6-year-old girl who has been held captive by Kiowas, to her family, and the book charms with the developing relationship between the 60-ish Kyle and the young girl who at first speaks only Kiowa. Their adventurous 400-mile journey from northern Texas almost to San Antonio makes for thrilling reading. This small book is worth your time.

Empire of the Summer Moon by S.C. Gwynne. The once-nearly invincible Comanches ruled the plains of Texas and eastern New Mexico. One of their great war chiefs, Quannah Parker, a white man, had been kidnapped as a child in one of their raids, and grew to be an implacable foe of the whites. This is his story, and that of the Comanches, and how their iron grip on the plains finally succumbed to the flood of white settlement and overwhelming U.S. military power.

The Earth is Weeping, by Peter Cozzens. A thoroughly-researched, fair, and even-handed account of the thirty years of conflict between the western Indian tribes and the United States government. Cozzens is the author of Black Hawk Down.

Bottle Rocket. Wes Anderson’s movie about three slackers who somehow manage to pull off a robbery, hide out, and then try another, all in a madcap attempt to avoid growing up and facing life. What happens to them as they are repeatedly slapped around by reality is at turns funny, pathetic, and head-shaking.

Lion. Based on the autobiographical book by Saroo Brierly, the true story of boy in India who is separated from his poverty-beset family in a remarkable chain of events, and is adopted by an Australian family. Tortured by vague recollections of his earlier life, he strives to find his Indian mother and siblings. It’s a moving, enthralling story.

Burn After Reading. From the Coen brothers, with Brad Pitt, Frances McDormand, George Clooney, Tilda Swinton, John Malkovich, and Richard Jenkins. Maybe not quite as crisp as many other Coen treats, but there are plenty of laughs in this black comedy about a fitness instructor who tries to blackmail a former CIA operative. Add in rampant adultery, clueless government intelligence agents, the Russian embassy, and plenty of Coen irony, and you have an entertainment that’s fun to watch.


Is Boles Still Good Law?

September 20, 2017 § Leave a comment

Earlier this month we talked about the MSSC’s decision in Lewis v. Pagel, in which the court overruled a long line of Mississippi cases that had held that venue is jurisdictional in divorce cases, and may not be waived.

That decision included the following footnote:

[Fn 3]  In 2006—after Section 93-5-11 was amended—this Court, in dicta, found that Section 93-5-11’s venue requirement conferred subject-matter jurisdiction on the chancery courts. National Heritage Realty, Inc. v. Estate of Boles, 947 So. 2d 238, 248–49 (Miss. 2006) (applying Miss. Code Ann. § 91-7-63(1)). We decline to follow this interpretation of Section 93-5-11 post-amendment. It appears the Boles Court did not take the amendment into account. [Bold emphasis mine]

I posted about the Boles decision in a previous post raising this very same point: The Boles decision simply ignored that the statute had been amended and misstated the law of change of change of venue in divorce cases. The high court held that the chancellor erred in ordering an estate to be transferred from one county to another because venue is jurisdictional by statute, and the case may not be transferred, only dismissed.

But Boles is an estate case, you might point out. Yes, but the rationale of the Boles opinion analogized the situation in that estate case to the classic divorce venue statute, holding that the statute is the sole source of subject matter jurisdiction over estates. But wait — Article 6, Section 159(c), of the Mississippi Constitution specifically confers subject matter jurisdiction over “Matters testamentary and of administration” on the chancery court.

Applying the logic in Lewis v. Pagel, then, Boles should be bad law. Not only is the statute not the source of subject-matter jurisdiction in estate matters, the analogy relied on by the court back then was faulty and incorrect.

New Rule: When an Order is Effective

September 19, 2017 § 2 Comments

MRCP 58 specifies that a judgment must be entered by the clerk per R79(a) in order for it to be effective. That’s the rule for a judgment, but what is the rule for an order?

[Refresher … a judgment is a final, appealable ruling of the court that adjudicates all claims of all parties or, if fewer than all issues are resolved or fewer than all parties are affected, the judge includes a certificate per MRCP 54(b). An order, on the other hand, is a ruling by the court on matters brought before it in the course of litigation that do not finally resolve the issues in the case.]

That was the question before the MSSC in Graceland Care Center, et al. v. Hamlet, decided August 17, 2017. Here is how the court describes what happened:

¶1. Teresa Hamlet filed a motion for an extension of time to serve process, prior to the expiration of the 120-day deadline provided by Mississippi Rule of Civil Procedure 4(h). The trial judge granted the motion and signed an order, yet the order was not filed with the circuit clerk until the day before the granted extension expired, well after the expiration of the original, 120-day deadline. Hamlet served process on three defendants during the extension. On the same day the order was filed, Hamlet filed a second motion for time, which the trial court also granted. While Hamlet served process on the remaining defendants within the second extension period, the order granting the second extension was not filed with the clerk until three months after it was signed by the judge.

¶2. The defendants filed a motion to dismiss Hamlet’s complaint, arguing that the statute of limitations had run before the court’s order granting additional time to serve process had been entered by the clerk of court. The defendants further argued that Hamlet’s suit could not be revived by the untimely filed order. The trial court denied the defendants’ motion to dismiss . . .

In a 6-3 decision, the court affirmed. Justice King wrote for the majority:

¶27. Therefore, in cases involving ex parte motions, such as the present case, we find that the order becomes effective upon leaving the judge’s control. However, in cases where more than one party is involved and notice becomes essential, we find that an order becomes effective once it is officially entered into the record by the court clerk.

¶28. Of course, there also are certain other orders to which this general rule would not apply. For instance, temporary restraining orders and other emergency orders (such as domestic protective orders) are effective before filing with a clerk. See M.R.C.P. 65(b) (“[T]emporary restraining order . . . shall be filed forthwith in the clerk’s office and entered of record”). In addition, certain rulings of a trial judge that require immediate action, such as those under a judge’s contempt powers, would not be subject to the general rule.

¶29. This rule in no way limits the ability of the trial judge, where otherwise allowed by law, to enter an order nunc pro tunc, make an order retroactive or have it relate back for enforcement purposes. The purpose of this rule is to effectuate notice to the parties and establish some finality as relates to the running of deadlines.

So the rule now is that interlocutory orders are effective upon entry unless they are ex parte, in which case they are effective when they leave the judge’s control.

You need to read the entire opinion to get the rationale and understand how it applies. Also, while you’re at it, Coleman’s dissent, joined by Dickinson and Beam, has plenty of authority contra on the point.


Thanks to Attorney Andy Lowery for bringing this case to my attention.



Taking as Admitted … or not

September 18, 2017 § Leave a comment

Ursel Williams sued her husband, Wayne Williams, for separate maintenance after he left her. In the course of litigation, Wayne propounded R 36 requests for admission (RFA’s), most of which went to the merits of Ursel’s claims. Ursel never responded, and Wayne moved at trial for the chancellor to take the requests as admitted. She refused. Wayne appealed the judge’s grant of separate maintenance and raised in his appeal the issue of the chancellor’s refusal to take the admissions as admitted.

In Williams v. Williams, decided August 22, 2017, the COA affirmed. Judge Lee wrote for a 7 1/2 -1 1/2 court (Judge Wilson joined the dissent “in part”):

¶7. Rule 36 of the Mississippi Rules of Civil Procedure governs requests for admissions. The rule states, in pertinent part, that a matter will be deemed admitted if the party upon whom the request was served does not timely respond or file an objection addressed to the matter. M.R.C.P. 36(a). A timely response equates to one being made within thirty days. See id. Thereafter, the matter is conclusively established unless the court permits the admission’s withdrawal or amendment. M.R.C.P. 36(b). “A matter that is deemed admitted does not require further proof.” Locklear v. Sellers, 126 So. 3d 978, 981 (¶7) (Miss. Ct. App. 2013). Still, while “Rule 36 is to be applied as written, . . . ‘it is not intended to be applied in Draconian fashion.’” In re Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424, 432 (¶28) (Miss. 2009) (quoting DeBlanc v. Stancil, 814 So. 2d 796, 801-02 (¶26) (Miss. 2002)). Specifically, “[a] certain amount of discretion is vested in the [chancellor] with respect to whether he or she will take matters as admitted.” Earwood v. Reeves, 798 So. 2d 508, 514 (¶19) (Miss. 2001) (citation omitted).

¶8. The problem here is that the admissions produced contradictory results. Some of the requests asked Ursel to admit that: the separation was her fault, Wayne did not refuse to support her, and Wayne did not abandon her. However, another request asked Ursel to admit that “there is no significant conduct on [y]our part that negatively impacts the enjoyment of the marriage contract.” Ursel obviously admitted to this statement in her untimely response. As such, we fail to see how the matter could be conclusively established as Wayne argues; thus, it was within the chancellor’s discretion to rely on the trial testimony to resolve any conflicts. Furthermore, the chancellor recognized that it was within her discretion to review the reason for Ursel’s failure to timely answer the requests for admissions. The chancellor found the delay of thirty-three days was not “critical,” and we can find no abuse of discretion in this instance. The dissent states that Wayne’s requests for admissions were deemed
admitted for Ursel’s failure to timely reply and that the contradictory admission does not encompass the essential elements of Ursel’s separate-maintenance claim. However, the dissent concedes that it is within the chancellor’s discretion whether to take matters as admitted. In this instance, we cannot find error by the chancellor.

Nothing earthshaking here.

In child custody cases, RFA’s may not be relied upon by the chancellor as the body of proof. And here is another post (with the same title) on the point.

It’s important to keep in mind that you shouldn’t send RFA’s out to do the bulk of the heavy lifting in your case. They aren’t designed to do that. As the court has said, the purpose of the request for admission under Rule 36 is “to determine which facts are not in dispute . … It is not intended to be used as a vehicle to escape adjudication of the facts by means of artifice or happenstance.” DeBlanc v. Stancil, 814 So. 2d 796, 802 (Miss. 2002).

Dispatches from the Farthest Outposts of Civilization

September 15, 2017 § Leave a comment

When a Judgment Isn’t a Judgment

September 13, 2017 § 3 Comments

If a chancellor finally adjudicates a case with an instrument entitled “Order,” is that a final, appealable judgment?

Check out MRCP 58:

Every judgment shall be set forth on a separate document which bears the title of “Judgment.” However, a judgment which finally adjudicates the claim as to all parties and which has been entered as provided in MRCP 79(a) shall, in the absence of prejudice to a party, have the force and finality of a judgment even if it is not properly titled … [my emphasis]

That language came into play in the recent COA case, Bray, et al. v. Wooten, et al. handed down August 22, 2017.

In that case, on May 12, 2014, the chancellor rendered a final ruling following a hearing, and entitled it “Opinion and Order.” The order was filed the same day in the office of the chancery clerk. Later, on July 11, 2014, a document entitled “Final Judgment,” that had been drafted by one of the attorneys and signed by all counsel, was erroneously presented to the other chancellor in the district. He signed it that day, no doubt not taking time to study it in detail because it was signed off on by all counsel, and it was entered by the clerk on July 15, 2014. A motion for new trial was filed within ten days of entry of the July judgment, and was overruled ruled by the original chancellor in January, 2015. The appeal was filed within thirty days of the chancellor’s January, 2015, ruling, which came eight months after the May, 2014, final order. Here’s what the COA said about it:

 ¶17. We begin with the jurisdictional issues. [One of the appellants] argues that the Bray’s notice of appeal was untimely. It claims that the final judgment was Chancellor Kilgore’s Order and Opinion dated May 12, 2014. Thus, since the Bray’s notice of appeal was not filed until February 10, 2015, it was almost seven months late, and this appeal should be dismissed.

¶18. “[W]e review questions of law, such as jurisdiction, utilizing a de novo standard of review.” Weeks v. State, 139 So. 3d 727, 729 (¶5) (Miss. Ct. App. 2013) (citing Whetstone v. State, 109 So. 3d 616, 618 (¶6) (Miss. Ct. App. 2013)). Mississippi Power argues that Chancellor Kilgore’s January 14, 2015 order stated that his final order was the May 12, 2014 order. Thus, Mississippi Power contends that Bray did not timely perfect the appeal. Bray counters that Mississippi Power did not join Wooten’s motion for summary judgment or move separately for summary judgment, meaning the chancellor’s judgment was not final. We address both of these arguments.

¶19. “A final, appealable, judgment is one that adjudicates the merits of the controversy and settles all the issues as to all the parties and requires no further action by the lower court.” Jennings v. McCelleis, 987 So. 2d 1041, 1042 (¶4) (Miss. Ct. App. 2008) (quotation marks omitted) (quoting Walters v. Walters, 956 So. 2d 1050, 1053 (¶8) (Miss. Ct. App. 2007)). “Generally, only final judgments are appealable.” Walters, 956 So. 2d at 1053 (¶8) (quoting M.W.F. v. D.D.F., 926 So. 2d 897, 899 (¶4) (Miss. 2006)).

¶20. Mississippi Rule of Civil Procedure 58 provides:

Every judgment shall be set forth on a separate document which bears the title of “Judgment.” However, a judgment which fully adjudicates the claim as to all parties and which has been entered as provided in M.R.C.P. 79(a) shall, in the absence of prejudice to a party, have the force and finality of a judgment even if it is not properly titled. A judgment shall be effective only when entered as provided in M.R.C.P. 79(a).

In his January 14, 2015 “Opinion and Order,” Chancellor Kilgore ruled:

This order was filed in the office of the Chancery Clerk on May 12, 2014. Although this judgment was styled “Opinion and Order” and was clearly intended to be a final resolution to the action, counsel for Wooten acknowledged that he drafted a document entitled “Final Judgment”’ and mistakenly submitted same to the other Chancery Judge in the district, who signed this order on the 11th day of July, 2014.

¶21. The chancellor’s May 12, 2014 order was entitled “Opinion and Order.” It did not comply with Mississippi Rule of Civil Procedure 58, which clearly requires that a final judgement [sic] be titled “Final Judgment” in order to be considered one. A further analysis through Mississippi Rule of Civil Procedure 79(a) does not support the chancellor’s ruling.

¶22. Therefore, we find that the chancellor’s May 12, 2014 Opinion and Order was not a final, appealable judgment, and it did not have the force and finality of a judgment. The fact that the parties’ attorneys prepared and signed a “Final Judgment” supports our decision. Had it been submitted to the correct chancellor, there would be no argument that the notice of appeal was untimely. Regardless, the earliest possible appealable “final judgment” in this case was the Final Judgment that was signed on July 11, and entered on July 15, 2014. The motion for a new trial was filed on July 25, 2014, which was within ten days as required by Mississippi Rule of Civil Procedure 59(b). Because the notice of appeal was filed within thirty days of the chancellor’s January 14, 2015 “Opinion and Order,” we find no merit to this issue.

If the COA is trying to say that the labelling of the May ruling worked prejudice on the appellant that was compounded by his submission of the “Final Judgment” to the wrong judge, okay. That makes sense under R 58, which specifically says that mislabelling of a final judgment is only fatal to its finality if it creates a prejudice to a party.

But the COA’s language at ¶21 is too sweeping to me when it says, “[The May Order] did not comply with Mississippi Rule of Civil Procedure 58, which clearly requires that a final judgment be titled “Final Judgment” in order to be considered one.” On the contrary, under R 58, the chancellor could have tiled it “Laundry List,” and, if it finally adjudicated all claims as to all parties, it would be a final, appealable judgment if no one could show prejudice. The language of the opinion, which may be quoted as authority, can be taken to mean something contrary to the express language of the rule.

The wrinkle here was the submission to and signing of counsel’s “Final Judgment” by a busy chancellor who was likely interrupted in other matters to accommodate the request. Had the document been submitted to the proper chancellor, I believe he would have declined to sign it on the basis that he had already issued a final ruling in the case. He said as much in his January, 2015, ruling on the R 59 motion.


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