May 14, 2018 § 6 Comments
The qualifying deadline for chancery judge races was this past Friday. Here are the races, including any unopposed for replacement of a retiring chancellor:
District One (Alcorn, Itawamba, Lee, Monroe, Pontotoc, Prentiss, Tishomingo, and Union). Place 1 (being vacated by retirement of Chancellor John A. Hatcher, Jr.) Nathaniel Clark, Lisa Ann Koon, William Smith, Brad Tennison, and Daniel K. Tucker.
District Two (Jasper, Newton, Scott) (being vacated by retirement of Chancellor H. David Clark, II) Robert M. Logan, Jr. is unopposed.
District Five (Hinds).
Sub 5-2 (being vacated by retirement of Chancellor Patricia D. Wise) Reginald Harrion and Crystal Wise Martin.
Sub 5-4 (being vacated by retirement of Chancellor William H. Singletary) Monique Brown-Barrett, Ottawa E. Carter, Tiffany Grove, and Steven P. Nixon.
District Six (Attala, Carroll, Choctaw, Kemper, Neshoba, Winston) Place 2 (being vacated by retirement of Chancellor Edward C. Fenwick) Rosalind H. Jordan and Kiley Kirk.
District Seven (Bolivar, Coahoma, Leflore, Quitman, Tallahatchie, Tunica) Sub 7-2 (being vacated by retirement of Chancellor Jon Barnwell) Katherine Tackett Mills, Willie J. Perkins, Sr., and Richard W. Ryals.
District Eight (Hancock, Harrison, Stone) Place 3 Incumbent Chancellor Sandy Steckler is facing Diane Herman Ellis and Margaret Alfonso.
District Nine (Humphreys, Issaquena, Sharkey, Sunflower, Warren, Washington)
Sub 9-1 (being vacated by retirement of Chancellor Marie Wilson) Bennie L. Richard is unopposed.
Sub 9-2 Incumbent Chancellor Jane R. Weathersby is opposed by Debra M. Giles.
District Ten (Forrest, Lamar, Marion, Pearl River, Perry)
Place 3 (being vacated by retirement of Chancellor Johnny L. Williams) Bob Marshall and Sheila H. Smallwood.
Place 4 (being vacated by retirement of Chancellor M. Ronald Doleac) Stacy S. Barber, Christopher M. Howdeshell, Vanessa Jones, Harry R. Lane, Chad Smith, and Joseph L. Turney.
District Twelve (Lauderdale, Clarke) Place 1 (being vacated by retirement of Chancellor Jerry G. Mason) Charles E. Smith and Frances S. Stephenson.
District Thirteen (Covington, Jefferson Davis, Lawrence, Simpson, Smith) Place 1. Incumbent Chancellor David Shoemake is facing John Allen Bufington.
District Fourteen (Chickasaw, Clay, Lowndes, Noxubee, Oktibbeha, Webster)
Place 1 (being vacated by retirement of Chancellor Kenneth M. Burns) Elizabeth Fox Ausbern, Gene Barton, R. Todd Bennett, Rodney Faver, and Lee Ann Turner.
Place 2 (being vacated by retirement of Chancellor H. James Davidson) Gary S. Goodwin, Carrie A. Jourdan, and Joseph N. “Joe” Studdard.
Place 3 (being vacated by retirement of Chancellor Dorothy W. Colom) Paula Drungole-Ellis and Roy A. Perkins.
District Fifteen (Copiah, Lincoln) (being vacated by retirement of Chancellor Edward E. Patten) Renee H. Berry and Joseph Durr.
District Sixteen (George, Greene, Jackson)
Place 2 (being vacated by retirement of Chancellor Jaye A. Bradley) Robert “Bob” Briggs, Tanya Hasbrouck, Gary L. Roberts, and Ashlee C. Trahern.
Place 3 (being vacated by retirement of Chancellor Michael L. Fondren) David C. Frazier, Mark A. Maples, and Stacie E. Zorn.
District Eighteen (Benton, Calhoun, Lafayette, Marshall, Tippah) Place 1 (being vacated by retirement of Chancellor V. Glenn Alderson) Carnelia Fondren, Sarah J. Liddy, and Lawrence L. Little.
District Twenty ( Rankin) Place 2 (being vacated by retirement of Chancellor John S. Grant) Tameika C. Bennett, Mel Coxwell, and Troy F. Odom.
May 11, 2018 § 3 Comments
Reading and Watching
The Cotton Kingdom by Frederick Law Olmsted. It’s not widely known that the author, who became America’s first and most prominent landscape architect and designer of masterpieces such as Central Park in New York and Biltmore Estate, was for years a correspondent for the New York Times. In the 1850’s he undertook a solo tour through the backwoods of the southern states to report on slavery, life in the south, and the plantation economy. This book compiles his reportage, and presents a contemporary panorama of the small landowners, slaves, plantation owners, and their ways of life.
Worse than Slavery by David Oshinsky. From slavery, through reconstruction, through white resurgency, through Jim Crow, through convict labor-for-hire, through the law used as oppression. Oshinsky traces the history of Parchman Farm from its roots in slavery to its founding and evolution through phases of Mississippi history. The author does a masterful job of depicting Mississippi’s brutal racial history.
Hue 1968 by Mark Bowden. Turning points in history are most often identified by historians long after the fact. Some turning points, however, are apparent immediately. Such was the case when the Tet Offensive exploded across Viet Nam in 1968. Before then the Johnson Administration had been manipulating the media, with a few notable exceptions, to promote a rosy picture of military progress in that ill-starred land. Tet proved it all to be lies, and began a u-turn in American public opinion on the nation’s involvement in Viet Nam’s civil war. Bowden’s riveting book tells the story of the invasion and month-long occupation of Hue, South Viet Nam’s cultural capital, by the North Vietnamese and Viet Cong, the Herculean effort that it took to oust them, the cost in human life and destruction, and the aftermath both in Viet Nam and in the U.S.
Prisoners of Geography: Ten Maps that Explain Everything About the World by Tim Marshall. An easy-to-digest, thoughtful explication of geopolitics. Marshall shows how geography has dictated history, how it influences current events, and how it will shape the world’s future, region by region.
The Greater Journey by David McCullough. Between 1830 and 1900, waves of Americans took up residence in Paris to study art, medicine, and life. They took what they absorbed back to their young nation and enriched it immeasurably. Through their stories two-time Pulitzer Prize and two-time National Book Award-winner McCullough weaves the history of Paris itself. What results is the mesmerizing sagas of Americans such as James Fenimore Cooper, Mary Cassat, John Singer Sargent, Augustus Saint-Gaudens, Harriet Beecher, Samuel F.B. Morse, and others, all set against war, art movements of the eras, epidemics, and the Haussmannization of the City of Light.
The Best and the Brightest by David Halberstam. America’s gradual slide into immersion in Viet Nam’s civil war, from Eisenhower, through Kennedy, and to Johnson, with an afterword about Nixon. Halberstam makes a microscopic examination, linking the loss of China to Communism during the Truman years to Kennedy’s obsession with refusing to let the same thing happen in Indochina, to Johnson’s deferral to Kennedy’s “best and brightest” brain trust that he inherited following Kennedy’s assassination. This is a fascinating analysis, done as a character study of all the major — and some minor — players.
The Last Castle by Denise Kiernan. The story of Biltmore Estate and its creator, George Washington Vanderbilt. What do you do when you have inherited more wealth than you can possibly use in twenty lifetimes? Well, if you live in America’s Gilded Age, you build the largest home in the nation, on more than 30,000 acres, for which you employ only the leading architects, craftsmen, foresters, and landscapers. This book traces the development of Biltmore manor and its estate. It’s also the story of his wife Edith’s devotion to the community and her employees, the Vanderbilts’ at-times tenuous financial situations, and the symbiotic relationship of Biltmore, the Vanderbilts, Asheville, and the Blue Ridge Mountains.
A Gentleman in Moscow by Amor Towles. Count Alexander Rostov, a Russian Aristocrat is brought before a revolutionary tribunal on charges of being an enemy of the people. He expects to face a firing squad or be imprisoned. Instead, because he is credited with once having authored a famous poem, he is ordered to be incarcerated in the Metropol Hotel for life, on pain of death if he ever sets foot outside it. His story, and that of all the interesting characters, events, and settings in the hotel with which he interacts, make for entertaining reading that one would not expect of a novel limited in scope to one square block of Moscow. Towles is a talented writer whose prose you will enjoy.
Movie Stars by Jack Pendarvis. You need to read more Pendarvis. Do it for yourself.
As for watching, I recommend Filmstruck for those of you who are cinephiles. There you will find a rotating selection of the Criterion Collection and TCM’s vault.
May 9, 2018 § Leave a comment
In 1972, Carroll and Susan O’Brien purchased 104 acres of land in Simpson County as joint tenants with right of survivorship. The purchase money came from Susan’s inheritance.
Fifteen years later, in 1987, the couple was divorced by judgment on the ground of irreconcilable differences. Their PSA, which was incorporated into the judgment, included the following provision:
It is agreed between the parties that all real property jointly owned by these parties shall remain as same now is, with each party owning a one-half undivided interest in all real property and that said real property cannot become community property by any future marriages by either spouse. No disposition of any land holdings may be made while both parties are alive unless by mutual agreement in writing.
It is obvious from the language above that their intent was that the ultimate survivor would become sole owner of the property.
Only problem is that Carroll had a different idea. In 1995, using an old power of attorney (POA) that Susan had signed back in 1970, he quitclaimed the Simpson County property to himself and his new wife, Socorro. Contrary to the express language of the PSA, Carroll had not sought or obtained Susan’s “mutual agreement in writing” to dispose of his interest in the real estate. He did not execute the deed as Susan’s attorney-in-fact. There were a couple of later conveyances in 2000 and 2007, resulting in the property being conveyed solely to Socorro.
Carroll died in November, 2012.
Susan filed suit to void the deeds and remove clouds on her title to the property. She alleged breach of fiduciary duty by his self-dealing use of the POA, lack of authority to convey, fraud, and unjust enrichment. Socorro filed a denial, along with affirmative defenses of equitable estoppel, laches, and waiver, and demanded one-half of the ad valorem taxes back to 1995.
Susan filed a motion for summary judgment. The chancellor found that no written agreement was ever made to allow Carroll to convey any interest in the property, and that all of his attempts to convey the property after the divorce would be cancelled and set aside. Socorro appealed.
The COA unanimously affirmed in the case of O’Brien, Individually and as Executrix of the Estate of O’Brien v. Westedt, handed down April 10, 2018. There are some legal points of interest to property lawyers.
Citing Mosby v. Mosby, 962 So. 2d 119, 124 (¶15) (Miss. App. 2017), the court affirmed the chancellor’s decision:
¶12. Susan responds that the Mosby case clearly stands for the principle that conveyances which thoroughly frustrate the intent of a divorce decree shall be set aside. Id. She claims that, based on the trial court’s interpretation and application of Mosby to the undisputed facts of the case, she was entitled to a judgment as a matter of law. She contends that the property settlement agreement is clear that neither she nor Carroll could dispose of any interest in the real property while both were alive without the written agreement of the other. As previously quoted, the agreement states that “[n]o disposition of any land holdings may be made while both parties are alive unless by mutual agreement in writing.”
¶13. The chancery court noted that in “Mosby, a divorced husband attempted to thwart the intent of the divorce decree by conveying his one-half interest in the property to his second wife while retaining a life-estate in himself in a scheme to avoid splitting the equity in the property with his first wife.” Id. Based on the Mosby case, the court found that the property settlement-agreement provision governed, and all attempts by Carroll to convey the property after his divorce from Susan should be canceled and set aside. We agree. See also McKinney v. King, 498 So. 2d 387, 388 (Miss. 1986) (holding that, “[i]t is fundamental law that an agent owes his principal absolute good faith and fidelity, and he cannot in the exercise
of his authority as agent acquire property or interest therein rightfully belonging to his principal without full disclosure and free consent of his principal.”).
¶14. The property-settlement agreement clearly contemplated that the property would pass by survivorship unless both parties agreed otherwise in writing. “[P]roperty settlements under divorce actions are binding on the parties if fair, equitable and supported by consideration.” Weeks v. Weeks, 403 So. 2d 148, 149 (Miss. 1981). Socorro does not claim that the property-settlement agreement entered into by Carroll and Susan was unfair, inequitable and not supported by consideration at the time Carroll and Susan executed it. The contract was enforceable, and the conveyances were void; therefore, the original joint tenancy with rights of survivorship was still intact at Carroll’s death, and Susan is entitled to the entire property.
A few thoughts:
- I am going to presume that the concept of keeping the property jointly titled post-divorce originated with the clients, and not the lawyers. Perhaps neither had the funds to buy out the other’s interest. Whatever, I don’t think it’s usually best to leave the parties in a joint ownership arrangement after a divorce.
- Regardless of the wisdom or lack thereof behind the property arrangement, I give full credit to the lawyer who drafted it. The provision leaves no doubt about what the parties intended, and it left no wiggle room that Carroll could have used to justify his actions.
- This case also highlights that you need to discuss with your divorce clients how to tidy up their affairs after divorce. They need to do a credit check to make sure there are no joint credit accounts of which they were unaware. They need to cancel all previous wills. They need to execute a cancellation of all prior powers of attorney and file the cancellation with the chancery clerk among the property records. They need to check and change life insurance beneficiaries as necessary. They need to close all joint banking and securities accounts. It’s an important subject about which I’ve posted here before.
- Righting wrongs and making sure that equity is done are core functions of chancery court.
May 8, 2018 § 4 Comments
We all lapse into using the general term “pleadings” to embrace just about any and every filing with the court. But that’s a bad habit that we need to break.
There are only seven instruments that are considered pleadings under the MRCP. They are listed in R7(a), which reads:
Pleadings. There shall be a complaint [or a petition, see below] and an answer [which may include a R13 counterclaim]; a reply to a counter-claim denominated as such; [a cross-claim against a co-defendant] an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who is not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer. [My emphasis and editorial comments]
That’s it. Those are the filings that by definition are pleadings. A motion is not a pleading. Motions “and other papers” are dealt with in R7(b), separate and apart from pleadings.
And while we’re at it, notice that there is no mention in R7 of “countercomplaints,” “cross-petitions,” or “motion for modification” or any other such products of an overactive legal imagination. As the court said in Cornelius v. Overstreet, 757 So. 2d 332, 335 (Miss. App. 2000):
¶ 9. In addition, this Court would like to comment to the bar and the trial bench about cases similar in nature which fall within the purview of Rule 81(d) of the Mississippi Rules of Civil Procedure. The initiation of such actions should be by filing “complaints” or “petitions,” and “counterclaims” or “cross-claims” (whichever might be appropriate), not “motions” and “cross-petitions” as was done in this case. See M.R.C.P. 13, 81(d)(1–3), 81(f), and comments to 81(d)(3) and 81(f).
The use of the term “Petition” in place of complaint in chancery matters has been suggested by the MSSC to reflect long-standing practice particularly in estate matters, and to distinguish contempt and modification actions based on continuing jurisdiction from initial complaints.
There is no penalty for mislabelling a pleading other than the usual price an otherwise well-educated person pays for appearing ignorant.
A previous post dealing with this same subject is here. As an added bonus, you will note that I lumped motions in with pleadings in that earlier post. Well, that just goes to prove what I said in my first sentence above.
May 7, 2018 § Leave a comment
As I have often said here, if you intend to practice family law, you are behind the curve unless you learn as much as you can about it, and, in my opinion, one of the best ways to learn as much as you can about it is to attend Professor Deborah Bell’s Family Law seminars.
This year’s versions are: Biloxi, July 27; Oxford, August 3; and Jackson, August 10.
And while you’re at it, you should buy Bell on Mississippi Family Law. It’s the best learned treatise on Mississippi family law that I have found.
Disclaimer: I have no financial or other interest in promoting the seminar or the book, other than wanting lawyers and judges to do the best job that they can do.
May 4, 2018 § Leave a comment
“A thief passes for a gentleman when stealing has made him rich.” — Dutch proverb
“Only Jesus would be crazy enough to suggest that if you want to become the greatest, you should become the least. Only Jesus would declare God’s blessing on the poor rather than on the rich and would insist that it’s not enough to just love your friends. I just began to wonder if anybody still believed Jesus meant those things he said.” — Shane Claiborne
“It is a spiritually impoverished nation that permits infants and children to be the poorest Americans.” — Marian Wright Edelman
May 2, 2018 § 1 Comment
As we discussed yesterday, it was a dispute over whether the local church held property in trust for the denomination that brought First Presbyterian Church of Starkville into litigation with the Presbytery of Saint Andrew, PCUSA.
Justice Randolph’s majority opinion in Presbytery of Saint Andrew, PCUSA v. First Presbyterian Church PCUSA of Starkville, Mississippi, decided April 12, 2018, includes a precise summary of the law of trusts in Mississippi. I thought it would be something you might find useful:
¶23. Generally, trusts are classified under two broad categories: (1) express trusts and (2) implied trusts. Mississippi law requires that “no trust of or in any real property can be created except by written instrument signed by the party who declares or creates such trust. . . .” Miss. Code Ann. § 91-8-407 (Rev. 2013). Neither party asserted the existence of any writing signed by the proper FPC officials after authorization that satisfies Section 91-8-407,whether by original deed or separate trust instrument. Likewise, no declaration of trust is filed in the land records of Oktibbeha County, Mississippi, as provided by Section 91-8-407(b)(2).
¶24. No express trusts were entered into by the parties under traditional Mississippi trust law. No reference exists in any deed to creation of a trust relationship. It follows that no clear expression of an intent to create a trust exists, nor any reference even to the term “trust.” Neither party has asserted the opposite. Likewise, no separate document such as a trust instrument exists in writing. Again, neither party asserts the contrary.
¶25. None of the elements of creation of an express trust are present, such as the writing, the clear intent of the trustor, or the confirming authority of creation of a trust and the transfer of property by the governing body. See Church of God Pentecostal, 716 So. 2d at 208. Therefore, no traditional express trust nor any legally enforceable and separate traditional trust instrument exists or existed that would operate to vest a beneficial interest in and over the legally titled property of FPC to PCUSA.
¶26. While an express trust must be written, implied trusts differ in that they arise by implication of the law or are presumed from the circumstances. Mississippi recognizes two types of implied trusts: (1) constructive trusts and (2) resulting trusts.
¶27. A constructive trust is a judicially imposed remedy used to prevent unjust enrichment when one party wrongfully retains title to property. McNeil v. Hester, 753 So. 2d 1057, 1064 (Miss. 2000). FPC purchased the property at issue. No evidence exists that PCUSA invested any funds into the acquisition of any of the parcels of land. No evidence of any documents, oral conversations, minutes, or other written or oral supporting evidence exists that any arrangement of trust was contemplated in the tradition of a constructive trust. No constructive trust is implied by law based on the facts as agreed upon by the parties.
¶28. A resulting trust “is designed to give effect to the unwritten but actual intention of the parties at the time of the acquisition of title to the affected property.” Robert E. Williford, Trusts, 8 Encyclopedia of Mississippi Law § 73:2, 422 (2001). Additionally, Section 91-8-407(a)(2) specifically requires the intention to create a trust. When FPC incorporated in 2003, no intention to create a trust or create an express trust relationship existed. Furthermore, it is clear that PCUS disclaimed any interest in church trust property until just before the merger forming PCUSA. Although a trust provision was placed in the constitution when PCUSA was formed, the local churches were granted the right to opt out of that provision. FPC took measures on several different occasions to exercise its right to opt out. It did so in session meetings and bylaws of incorporation; it did so with reassurances by officers of PCUSA that compliance with the opt-out would allow FPC to hold title to its property. It is
reasonable to conclude the consistent position of FPC as representative of its intent that FPC wanted to remain, as it always had, the owner of its property. There is no evidence of a resulting trust.
May 1, 2018 § 2 Comments
Church bodies wind up in court from time to time. Often the dispute is over which ecclesiastical entity or faction of the congregation will own or control church property or assets. Both sides tend to want to charge the other with heresy, or violation of church polity, or something along those lines, and they try to draw the court into their dispute.
It was a dispute over ownership of church property that brought First Presbyterian Church of Starkville (FPC) and The Presbytery of Saint Andrew into litigation. The Presbytery claimed that FPC, which wanted to withdraw from PCUSA, held the church property in trust for the denomination. FPC argued that it had opted out of any trust arrangement. Both sides filed motions for summary judgment. In his ruling in favor of FPC, the chancellor pointed out that the issue to be resolved was ownership of the property, and not doctrinal issues. The Presbytery appealed.
In Presbytery of St. Andrew, PCUSA v. First Presbyterian Church PCUSA of Starkville, Mississippi, the MSSC affirmed the chancellor’s ruling that FPC did not hold the church property in trust for the Presbytery. Judge Randolph’s April 12, 2018, opinion for the 7-2 majority explains the standard that the courts must apply in determining ecclesiastical legal disputes:
¶20. Mississippi has adopted the “neutral principles of law” approach for resolving church property disputes. See Schmidt v. Catholic Diocese of Biloxi, 18 So. 3d 814, 824 (Miss. 2009); Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So. 2d 200, 206 (Miss. 1998).
The neutral-principles approach “relies on objective, traditional concepts of trust and property law. . . .” Id. at 205. “It calls ‘for the completely secular examination of deeds to the church property, state statutes and existing local and general church constitutions, by-laws, canons, Books of Discipline and the like. . . .’ ” Id. (quoting Protestant Episcopal Church in Diocese of N.J. v. Graves, 83 N.J. 572, 417 A.2d 19, 23 (N.J. 1980), cert. denied sub nom. Moore v. Protestant Episcopal Church in Diocese of N.J., 449 U.S. 1131, 101 S. Ct. 954, 67 L. Ed. 2d 119 (1981)). Religious documents must be carefully scrutinized in purely secular terms without relying on religious precepts. Church of God Pentecostal, 716 So. 2d at 205-06 (citing [Jones v.] Wolf, 443 U.S. [595,] 604, 99 S. Ct. 3020, [61 L. Ed. 2d 775 (1979)]). If a deed, corporate charter, or religious document incorporates religious concepts in its provisions concerning ownership of the property, the court must defer to the authority of the ecclesiastical body so as to avoid resolving any religious controversy. Wolf, 443 U.S. at 604, 99 S. Ct. 3020 (citing Serbian Eastern Orthodox Diocese [v. Milivojevich], 426 U.S. [696,] 709, 96 S. Ct. 2372, [49 L. Ed. 2d 151 (19760])[sic]. Schmidt, 18 So. 3d at 824.
¶21. As the chancellor held, the underlying reason for the schism among FPC members and between FPC and the Presbytery is not the issue before this Court. The only issue to be decided is whether PCUSA ever had a trust interest in FPC’s property. We find that the chancellor properly found that it did not.
The opinion goes on to lay out an excellent summary of the law of trusts in Mississippi. We’ll talk about that tomorrow. For now, the main thing is to recognize that it’s not the court’s job to resolve doctrinal disputes or to usurp authority of religious governing bodies.
If you have a small-town, people practice, it’s practically inevitable that you will be asked to represent one side or another in a similar fracas. Feelings are hurt, emotions are raw, and things are said in anger that probably would be better left unsaid. The lawyers have their hands full trying to maintain control. My law partner decades ago handled some of these kinds of cases, and came to be known in the community as the “go-to” lawyer when schisms arose. He sued Ministers, Elders, Presbyteries, Bishops, Dioceses, and even Synods. In one of the last cases he handled before we went our separate ways, however, I told him that he had gone too far. He was suing an Apostle. To me, that just crossed a line.