April 23, 2019 § Leave a comment

Judges’ Spring Conference

Next post April 29, 2019

Five Rookie Faux Pas

April 22, 2019 § 1 Comment

Aside from the fact that much of their attire is shiny new, and their shoes are not (yet) run down and scuffed up, it’s usually easy to spot rookie attorneys by the vexation they spread around them like pixie dust as they make their wake through a hearing. Here are five of the most vexatious:

The Leading Objection.

Attorney 1:  Were you living with your wife when you moved to Kosciusko?

Attorney 2:  Objection; leading.

Now, what did we accomplish in that exchange other than to impress on some observers that Attorney 2 knows the difference between a leading and a non-leading question? Well, one thing it accomplished was to break up the flow of the hearing, which is self-defeating. Another thing it accomplished is to pi$$ off the other attorney, who is likely to retaliate when Attorney 2 goes on direct, which in turn pi$$e$ off the judge who is straining to discern some substance amid this frivolity.

Maybe there is a case out there in which the appellate court reversed because the judge allowed a leading question. If so, it was certainly a jury trial and not a chancery bench trial. But I am not aware of any such case, so keep in mind that your objection is accomplishing nothing to protect your record.

My suggestion is that you save your leading objections for when the other side is drawing blood, like this:

Attorney 1:  Isn’t it true that you could not have possibly admitted to your neighbor your adultery because you weren’t there that day?

Now that’s rightly objectionable, and should by all means draw an objection, which should be sustained. Why? Because it’s really the lawyer testifying, and it goes to the substance of the case.

Moral of the story: Save leading objections to protect your case. Don’t cheapen the objection by whipping it out every time you hear a leading question. We all know that you know what’s leading and what’s not; you don’t need to convince us.

Pleadings are NOT Evidence.

If you want the trial judge to consider a document or the testimony of a witness, you must get that document or oral testimony admitted into evidence. Exhibits to the pleadings and the pleadings themselves are NOT in evidence. They will not be used by the the judge as a basis for her ruling in your case unless and until they are in evidence.

Getting things into evidence does require a command of the rules of evidence. Study them. Know them. Click on the Categories button over there on the right and select “Evidence.” There are all sorts of posts about how to get business records, photos, hearsay, and the kitchen sink into evidence. Know how to do it, and how to authenticate. These are survival tools. You will die in the desert wasteland of litigation without a canteen full of evidence knowledge.

And equally important, keep in mind that only what is in evidence can be considered by the appellate courts (with the exception of offers of proof and documents marked for identification; look those up).

Moral of the story: Get proficient in evidence. It’s to a lawyer what human anatomy is to a doctor. And, if you are one of those characters who managed to be birthed out of the law-school womb into the legal world without having taken evidence, please have the common decency to forewarn your chancellor.

You Can NOT Question a Witness About the Substance of a Document that is not in Evidence.

There are all kinds of legitimate reasons why this is so. The mainmost being that we have no idea whether the information in it is admissible at all. Is it hearsay? Is it authentic? We have no way of knowing unless you lay the proper foundation.

This is a common rookie mistake. It usually draws an objection. When the opposing lawyer is slumbering or inexperienced or merely incompetent and fails to object, I sometimes will stop the questioning lawyer and “gently encourage” him to get the document into evidence before questioning the witness about it. That’s because I don’t want to hear a bunch of inadmissible twaddle that I will have to shake out of my head later when I am writing my opinion.

Are you confused about how to get that document into evidence? Well, not meaning to brag, but there is a helpful post at this link on how to get a document into evidence, step by step.

Moral of the story: Follow the process, step-by-step, to get that document into evidence. If it’s one that you anticipate will draw objections, be prepared to meet them by studying the applicable rules in advance. I am sometimes brought near to grateful tears when I see a lawyer in action who has actually studied the rules.

And Don’t Forget to Offer the Document into Evidence.

It happens from time to time. The lawyer lays the document before the witness, has him identify it, and then launches off into some more breathtaking realm of inquiry. After an hour or so of exhilarating rabbit hunting, the young Perry Mason confidently slaps his sheaf of notes down on the table and proclaims, “Tender the witness.” The document is still sitting there before the witness, unadmitted into evidence. Pity. It might have made the difference in the case.

Moral of the story: All those preliminary, foundational steps to admission are for naught if you don’t ask the court to admit the document into evidence.

Object When You Have to!

Don’t take my caveat above against leading objections to mean that you should never object or that you should curtail your objections. Object when it makes a difference.

Let me repeat that more loudly: OBJECT WHEN IT MAKES A DIFFERENCE!

I have seen lawyers sit there and let the other side get rank hearsay in. I have seen documents full of hearsay and other objectionable material pass through with a nod and “no objection.” If it’s hearsay, object. If the document is unauthenticated, object. If it’s completely irrelevant, object. And so on.

One baffling non-objection I have seen lately is to the question, “How many times have you been arrested?” Look at MRE 609. Arrests don’t mean anything. Anyone can be arrested for anything. I can have you arrested for practically nothing (okay, I will have to file a false affidavit, which will get me kicked off the bench, which I won’t do, but there are plenty of people who do file false affidavits out of revenge, or spite, or for no good reason at all). It’s the conviction that counts, and there are limitations on that. Read the rule.

The judge is not a mushroom to be buried in excrement from which wisdom is expected to sprout.

Morel of the story: Object when it makes a difference, and you will be more effective and make a more effective case. BTW … a little fungus humor never hurt anyone.

April 19, 2019 § Leave a comment


Courthouse closed.


Double Fault

April 17, 2019 § 1 Comment

When both parties are clearly guilty of grounds for divorce, who gets the divorce?

Stephen Anderson proved that his wife, Emmarie, was guilty of adultery. She put on proof that he was guilty of habitual drunkenness and habitual cruel and inhuman treatment. The chancellor found both parties had proven the other guilty by the requisite standard of proof.

What is the chancellor to do? Grant both parties a divorce? Grant Stephen a divorce because adultery is more serious? Grant the divorce to Emmarie because people shouldn’t be violent toward each other? Order them to go home together and try to preserve the sanctity of their marriage?

The chancellor granted Emmarie a divorce, and Stephen appealed, arguing that he should have been granted the divorce because it was Emmarie’s adultery that caused his separation from her.

In Anderson v. Anderson, decided March 19, 2019, the COA affirmed. Judge Lawrence wrote the opinion, which analyzed Stephen’s argument on the point:

¶9. Stephen argues that because he proved that Emmarie committed adultery and Emmarie’s adultery caused him to leave, he should have been granted a divorce on that ground. Stephen further argues that Emmarie should not have been granted a divorce on habitual cruel and inhuman treatment because she reconciled with him after her 2012 claim.

¶10. “There can be but one divorce granted. Where each party has requested a divorce and offers proof sufficient to establish a basis for divorce, the chancellor must then determine which of the parties will be granted a divorce.” Garriga v. Garriga, 770 So. 2d 978, 983-84 (¶23) (Miss. Ct. App. 2000) (citing Hyer v. Hyer, 636 So. 2d 381, 382 (Miss. 1994)). Here, Stephen filed for divorce on the grounds of habitual cruel and inhuman treatment and adultery. Emmarie counterclaimed on the same grounds.

¶11. In Sproles v. Sproles, 782 So. 2d 742, 746 (¶14) (Miss. 2001), the chancellor granted the wife a divorce on the grounds of habitual drunkenness and habitual cruel and inhuman treatment instead of granting the husband a divorce on the ground of adultery even though his wife admitted at trial that she had committed adultery. Our supreme court affirmed the chancellor, finding that “[t]here [was] ample proof that it was [the husband’s] conduct that caused the dissolution of the marriage and that [the wife] was entitled to a divorce on the grounds of cruel and inhuman treatment and habitual drunkenness.” Id. at 747 (¶20). In Boutwell v. Boutwell, 829 So. 2d 1216, 1219 (¶¶40-43) (Miss. 2002), our supreme court dealt with a nearly identical issue and relied on Sproles to affirm the chancellor’s grant of divorce to the wife on the grounds of habitual cruel and inhuman treatment.

¶12. Here, Emmarie admitted that she committed adultery. However, the chancellor also heard testimony from Emmarie, Emmarie’s mother, and Emmarie and Stephen’s son about Stephen’s physical abuse upon Emmarie that started prior to and throughout the marriage. Ultimately, the chancellor determined that it was Stephen’s continued course of physical abuse upon Emmarie that caused the breakdown of the marriage. Finding the chancellor’s decision was supported by substantial evidence, we affirm the chancery court’s grant of divorce to Emmarie on the ground of habitual cruel and inhuman treatment.

Here the chancellor specifically found that it was Stephen’s conduct that caused the breakdown of the marriage, and it was on that finding that she made the award of the divorce to Emmarie. That basis has been upheld by the courts.

When you have the possibility that either party may be granted a divorce because both have grounds, it would behoove you to develop proof that the opposing party was more at fault. You need that kind of proof in connection with Ferguson, Albright, and Armstrong factors.



If You Want Specific Findings, Here’s What You Do

April 16, 2019 § Leave a comment

Dotie Jackson was unsuccessful in his attempt to modify custody. The chancellor found that he had failed to prove a material change in circumstances that would impact the child and warrant further analysis of the three-prong test for modification. He appealed.

In the March 19, 2019, case of Jackson v. Jackson, the COA affirmed the chancellor’s ruling. One issue Dotie raised was that the chancellor had erred in not making specific findings. Judge Greenlee’s opinion for the unanimous court addressed the point:

¶15. Dotie argues this matter should be reversed and remanded for the chancellor to make specific findings that there was no material change in circumstances which adversely affected the children. He also argues specific findings under an Albright [Fn omitted] analysis are required.

¶16. Under both the Mississippi Rules of Civil Procedure and the Uniform Chancery Court Rules, the chancellor is not obligated to provide specific findings of fact unless a party requests that she do so. See Smith v. Smith, 97 So. 3d 43, 46, 48 (¶¶7,16) (Miss. 2012) (citing Johnson v. Gray, 859 So. 2d 1006, 1012 (¶31) (Miss. 2003)). Dotie did not make such a request. And we have specifically acknowledged that this rule applies in child-custody cases. Blevins v. Bardwell, 784 So. 2d 166, 174-75 (¶¶30-31) (Miss. 2001).

¶17. But here, the chancellor did make findings of fact that are clearly set forth in her bench ruling. The chancellor definitively concluded:

[T]he Court finds and agrees with the guardian ad litem . . . with regard to the children . . . . [J]ust as [the] guardian ad litem, I have conducted an analysis based upon information made available to me. And it is my opinion that there has been no substantial material change in the home of Lori Beth Duperier [Jackson] that would warrant further consideration of the three-prong test for custody modification.

A careful reading of the chancellor’s bench ruling reveals the facts on which she based her ruling.

[T]he parties are really blessed. They have two beautiful young children, and they are healthy, and they are doing well. Both parents are healthy, financially stable . . . and they live a good life.

. . . .

[T]he mother contacted the professionals, and they did what they are required to do. They are to report situations where . . . they’re concerned that there is some type of abuse.

The chancellor noted that the investigation concerning the abuse allegations “was handled quickly.” She further stated:

I believe and I found credible the mother’s testimony that once the allegations were dismissed that she saw no need for the counseling. The guardian ad litem
testified the children were doing well. They [are] happy. They are healthy. They love both parents. Probably as the children see it, they did not skip a beat on their relationships with both parents. From my description, they are involved. They love both parents.

Thus, the chancellor found the allegations against Dotie did not alter the children’s relationships with either Dotie or Lori Beth. As earlier discussed, we found no error in the chancellor’s finding there was no material change in circumstances that adversely affected the children. And in absence of such a finding, the chancellor was not required to make specific findings under the Albright factors. Anderson[v. Anderson], 961 So. 2d [55] at 58 (¶6) [(Miss. Ct. App. 2007)]. Reversal and remand is not warranted in this instance.

Some thoughts:

  • There is plenty of case law that the Chancellor is required to make specific findings on the Albright factors. No motion is required to trigger that particular duty.
  • BUT if the chancellor finds no material change or adverse effect, then the chancellor is not required to analyze the case under Albright, so the duty of specific Albright findings does not come into play.
  • If you want specific findings for matters such as material change, which unlike Albright are not required findings, you must make a motion per UCCR 4.01 and bring it to the attention of the court. The rule states:

In all actions where it is required [e.g., Albright] or requested [by a motion made according to this rule], pursuant to MRCP 52, the Chancellor shall find the facts specially and state separately his conclusions of law thereon. The request must be made either in writing, filed among the papers in the action, or dictated to the Court Reporter for record and called to the attention of the Chancellor.

Prescription for a Prescriptive Easement

April 15, 2019 § Leave a comment

A prescriptive easement is one acquired essentially by adverse possession. The COA’s decision in Watts v. Jackson, decided March 19, 2019, has such an excellent, concise statement of the law of prescriptive easements that I thought you might find it useful to have it on hand. Judge Westbrooks wrote the opinion (edited by me):

¶6. “The standard and burden of proof to establish a prescriptive easement is the same as a claim of adverse possession of land.” Mayton v. Oliver, 247 So. 3d 312, 322 (¶32) (Miss. Ct. App. 2017). “To acquire property by adverse possession or by prescriptive easement the claimant must show that the possession was: (1) open, notorious, and visible; (2) hostile; (3) under claim of ownership; (4) exclusive; (5) peaceful; and (6) continuous and uninterrupted for ten years.” Biddix v. McConnell, 911 So. 2d 468, 475 (¶18) (Miss. 2005). “These elements must be proven by clear and convincing evidence.” Mayton, 247 So. 3d at 322 (¶32). “Clear and convincing evidence is such a high standard of proof that even the overwhelming weight of the evidence does not rise to the same level.” Id.

. . .

¶8. The Mississippi Supreme Court has held that all six elements must be proven for a prescriptive easement to be valid. See Sharp v. White, 749 So. 2d 41, 43 (¶9) (Miss. 1999). In its order, the chancery court does not break down the elements required, and this Court has held that when “the chancellor did not state any specific findings of fact concerning these six elements . . . we will proceed on the assumption that he resolved all such fact issues in favor of the appellee.” Rawls v. Blakeney, 831 So. 2d 1205, 1207 (¶8) (Miss. Ct. App. 2002).  . . .

A. Open, Notorious, and Visible

¶9. The supreme court has held that “it is not necessary, in order to establish an easement by prescription, that the way has been in constant use, day and night, but it may be established by such use as business or pleasure may require.” Threlkeld v. Sisk, 992 So. 2d 1232, 1238 (¶17) (Miss. Ct. App. 2008) (quoting Browder v. Graham, 204 Miss. 773, 780 (1948)).  . . .

B. Hostile

¶10. “Hostile use is use that is inconsistent with the title of the servient-estate owner.” Threlkeld, 992 So. 2d at 1239 (¶18). “Use of property that is permissive prevents a
prescriptive easement from forming.” Id. “Use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription, since adverse use, as distinguished from permissive use, is lacking.” Id. (internal quotation marks omitted).  . . .

C. Under the Claim of Ownership

¶11. “One claiming a prescriptive easement need not claim to own the land itself, but he or she must claim to own an easement.” Id. at 1239 (¶21) (quoting Delancey v. Mallette, 912 So. 2d 483, 488 (¶16) (Miss. Ct. App. 2005)).  . . .

D. Exclusive

¶12. “For a prescriptive easement, ‘exclusive’ does not mean that no one else used the road, but that ‘the use was consistent with an exclusive claim to the right to use.’” Threlkeld, 992 So. 2d at 1239-40 (¶22) (quoting Moran v. Sims, 873 So. 2d 1067, 1069 (¶10) (Miss. Ct. App. 2004)). Moreover, “[w]e conclude that the distinction to be made when using the term exclusive as it relates to a prescriptive easement does not mean to keep all others out, but to show a right to use the land above other members of the general public.” Keener Properties L.L.C. v. Wilson, 912 So. 2d 954, 957 (¶8) (Miss. 2005) (internal quotation marks omitted).  . . .

E. Peaceful

¶13. “‘Peaceful’ is defined as ‘marked by, conducive to, or enjoying peace, quiet, or calm.’” Biddix v. McConnell, 911 So. 2d 468, 477 (¶25) (Miss. 2005) (quoting Webster’s
Third International Dictionary 1160 (1986)).  . . .

F. Continuous and Uninterrupted for Ten Years

¶14. “A prescriptive easement vests when the adverse use has been continuous and uninterrupted for a period of ten years.” Threlkeld, 992 So. 2d at 1240 (¶24) (quoting
Delancey, 912 So. 2d at 489 (¶18)).  . . .

The court reversed the chancellor’s grant of a prescriptive easement. The COA held that Jackson had failed to prove that his use of the easement was hostile or exclusive.


Dispatches from the Farthest Outposts of Civilization

April 12, 2019 § Leave a comment

No GAL = No Error

April 10, 2019 § Leave a comment

After Amber Brown was personally served with a summons for a contempt proceeding, she failed to appear and was found in contempt and ordered to pay her ex-husband, Hewlett, $5,000 in attorney’s fees. She appealed.

One of her manifold issues was that the judge erred in not granting a continuance to allow for appointment of a GAL.

In Brown v. Hewlett, decided March 12, 2019, the COA affirmed. Here is Judge Jack Wilson’s opinion on the point:

¶29. First, Brown asserts that the chancery court should have granted a continuance and appointed a GAL to investigate “allegations of abuse and/or neglect.” However, Brown never asked the court to appoint a GAL. Therefore, any claim that the court should have exercised its discretion to appoint a GAL is procedurally barred. See, e.g., McDonald v. McDonald, 39 So. 3d 868, 885 (¶54) (Miss. 2010) (“The well-recognized rule is that a trial court will not be put in error on appeal for a matter not presented to it for decision.”).

¶30. Nor was the appointment of a GAL mandatory in this case. If there is a legitimate charge of abuse or neglect in a custody proceeding, then the chancery court must appoint a GAL, “whether the parties requested a [GAL] or not.” Carter v. Carter, 204 So. 3d 747, 758-59 (¶50) (Miss. 2016) (citing Miss. Code Ann. §93-5-23 (Rev. 2018)); see also Miss. Code Ann. § 93-11-65 (Rev. 2018)). However, the appointment of a GAL is mandatory only if there is a “sufficient factual basis to support” an allegation of abuse or neglect. Carter, 204 So. 3d at 759 (¶51). The chancery court has “discretion” to determine whether such an allegation is “legitimate.” Id. at (¶53). If the court concludes that there is no factual basis for the allegation, then the appointment of a GAL is not mandatory. Id. In this case, Brown fails to cite to any concrete allegation of abuse, let alone any evidence to support such a claim. Even at the final hearing before the chancery court, Brown merely testified that Lily had seen a counselor for unspecified reasons. On this record, the chancery court did not abuse its discretion by not appointing a GAL sua sponte in this contempt proceeding. [Fn omitted]

Simply because you insert the magic phrase “abuse and neglect” into your pleading, you have not created a duty for the chancellor to appoint a GAL in your case. As the opinion demonstrates, there must be a sufficient factual basis to support the allegation — sufficient to convince the judge that there are facts worth investigating that bear on the best interest of the child. Remember, you must call the request to the attention of the court, and that is done via motion. Under R 43(e), you can use an affidavit of your client or someone with eye-witness knowledge to support the motion.

The Half Fee on Appeal

April 9, 2019 § 1 Comment

It has been a long-standing rule in Mississippi that the prevailing party in an appeal is entitled to recover an attorney’s fee equal to one-half of the attorney’s fees awarded by the chancery court. For years, all that was required was either a separate motion or a section of the brief seeking that relief, with authorities.

That has changed, and a recent COA decision highlights how you need to approach the issue from here on out. In Brown v. Hewlett, handed down March 12, 2019, the court denied the attorney’s fee. Judge Jack Wilson’s opinion explained:

¶44. In his appellate brief, Hewlett requests an additional award of $2,500 in attorney’s fees for his defense of this appeal. Hewlett’s request appears to be well-taken because we have affirmed the chancellor’s finding that Brown was in contempt. See Heisinger [v. Riley], 243 So. 3d [248] at 260 (¶48) [(Miss. Ct. App. 2018)]. In such cases, we generally award appellate attorney’s fees equal to one half of the attorney’s fees awarded by the chancery court. See Riley v. Riley, 196 So. 3d 1159, 1164 (¶23) (Miss. Ct. App. 2016) (“Generally, on appeal this Court awards attorney’s fees of one-half of what was awarded in the trial court.”); accord Grant v. Grant, 765 So. 2d 1263, 1268 (¶19) (Miss. 2000).

¶45. Hewlett’s request is clearly set out in a separate section of his appellate brief with a citation to on-point authority. However, our Supreme Court recently held that a request for appellate attorney’s fees must be made in a motion that complies with Mississippi Rule of Appellate Procedure 27(a). Latham v. Latham, No. 2017-CA-00856-SCT, 2019 WL 242958, at *4-*5 (¶¶21-24) (Miss. Jan. 17, 2019). Therefore, we deny Hewlett’s request for appellate attorney’s fees without prejudice. Hewlett may renew his request in a motion that complies with Rule 27(a). Any such motion should be filed before the mandate issues.

Lesson: File a motion that complies with MRAP 27(a) before the mandate issues.

Of even greater interest, perhaps, are the specially concurring opinions of Judges McDonald and McCarty urging that the half-fee rule be abolished in favor of a reasonable fee based on time and effort. because you might want to argue this on appeal, I am providing those two opinions with their authority here:


¶48. I recognize that the common law rule for granting attorney’s fees to the prevailing party on appeal is well established. Yates v. Summers, 177 Miss. 252, 170 So. 2d 827, 832 (1936); Riley v. Riley, 196 So. 3d 1159, 1164 (¶23) (Miss. Ct. App. 2016). But, I agree with Judge McCarty’s other specially concurring opinion that the amount of fees should be based on the time and energy expended on the appeal as opposed to an arbitrary “one-half” rule.

¶49. An analysis as outlined in McKee v. McKee, 418 So. 2d 764 (Miss. 1982), should be employed to determine the amount of attorney’s fees to be awarded to the prevailing party on appeal.

¶50. The Supreme Court recently ruled in Latham v. Latham, No. 2017-CA-00856-SCT, 2019 WL 242958 at *4-*5 (¶21-24) (Miss. Jan. 17, 2019), that submission of a motion and time records is the better practice and has now required such pursuant to Mississippi Rules of Appellate Procedure 27(a).

¶51. In the case under consideration, I believe that the majority made the correct decision by dismissing the request for attorney’s fees without prejudice and allowing the prevailing party to make a request in compliance with Mississippi Rule of Appellate Procedure 27(a). I therefore specially concur with the majority for the foregoing reasons.



¶52. I agree with the conclusions of the majority in all respects but write separately to emphasize that attorneys are bound by Rule 1.5 of the Mississippi Rules of Professional Conduct to only take a “reasonable fee.” The common law practice of seeking one-half of the attorney’s fees awarded by the chancery court is not tethered to our rules or the actual work performed by the attorney. In light of the Supreme Court’s ruling in Latham v. Latham, No. 2017-CA-00856-SCT, 2019 WL 242958 (Miss. Jan. 17, 2019), the practice should be fully eliminated

¶53. In Mississippi, “[a] lawyer’s fee shall be reasonable.” M.R.P.C. 1.5(a). As a matter of law, “the word ‘shall’ is a mandatory directive.” Ivy v. Harrington, 644 So. 2d 1218, 1221 (Miss. 1994). Rule 1.5 gives us a list of eight factors that guides whether the fee is reasonable—such as “the time and labor required,” or “the fee customarily charged in the locality for similar legal services,” and the experience and reputation of the attorney. M.R.P.C. 1.5(a)(1)-(8). These are “also known as the McKee factors . . . .” Tunica County v. Town of Tunica, 227 So. 3d 1007, 1031 (¶58) (Miss. 2017).

¶54. Therefore if one is seeking attorney’s fees, one must be able to show that it is a reasonable fee. Although in certain cases, such as this one, a flat fee or a request for a certain amount could be approved, in the vast majority of cases the attorney will need to demonstrate reasonableness. I believe this request cannot be done with a blanket ask for “one-half of the attorney’s fees awarded by the trial court.” The reasoning is common sense. The work in the trial court may have been formidably complex, as in this case, and required multiple attorneys over multiple years. In contrast, it might be only one attorney who handles an appeal, which might span the better part of a single year. The work of an appeal may not warrant one-half the trial-court fee, rendering it an unreasonable fee.

¶55. Conversely, in some appeals the written and oral advocacy required may be much greater than the work in a trial court. A one-day trial on a single issue may not require a large fee, but a change in the law or statute might warrant extensive briefing and research for an appeal. One-half the trial court fee would not be reasonable in such a situation, as more would be warranted.

¶56. Even at the dawn of the twentieth century it was simply “a matter of common knowledge amongst the profession that a less fee should be allowed for services in the Supreme Court than in the circuit or chancery court.” Curphy & Mundy v. Terrell, 89 Miss. 624, 42 So. 235, 236 (1906). In that case, the Supreme Court ruled that “[t]he whole profession may be said to have knowledge” that “[t]he old tariff in use in this state customarily made the fee in this court one-half the fee in the court below.” Id. By 1936, the Supreme Court was holding that “[i]t has long been our custom under such circumstances and in such cases to allow one-half of the fee allowed in the lower court when the fee fixed below is reasonable and proper.” Yates v. Summers, 177 Miss. 252, 170 So. 827, 832 (1936).

¶57. As a result, the one-half fee comes to us through years of precedent and was once so common that it was granted without citation. See, e.g., Jenkins v. Jenkins, 278 So. 2d 446, 450 (Miss. 1973) (no citation of law while granting the one-half fee). It was simply that “[t]he rule of this Court is to allow one-half of the amount awarded by the trial court.” Keyes v. Keyes, 252 Miss. 138, 145, 171 So. 2d 489, 491 (1965); [FN 8] Kyzar v. Kyzar, 248 Miss. 59, 64, 157 So. 2d 770, 772 (1963) (granting $125 for appellate fees, half of the $250 for trial court work). The one-half fee does not appear to ever have been actually one of the Supreme Court Rules that were in effect at the time before the adoption of the Rules of Appellate Procedure, and was elsewhere referred to as “the Court’s policy . . . to award attorneys’ fees on appeal of one-half of that allowed by the trial court. . . .” Tighe v. Tighe, 239 Miss. 666, 670, 124 So. 2d 843, 843 (1960). It may have had its origins in part or in whole in statutes which allowed chancellors to “divide[] as may appear equitable” the costs of suit. Miss. Code Ann. 1942, § 1583 (recompiled 1956); Powell v. Booth (In re Powell’s Will), 239 Miss. 10, 17, 121 So. 2d 1, 3 (1960) (citing to the statute for a one-half fee).

[Fn 8] In Keyes, the Court had even ordered the one-half fee when the appellant did not prevail in the appeal, but was demonstrably without funds and “[i]mportant questions were decided, and very sacred rights were in balance.” Id. at 491; accord Nix v. Nix, 253 Miss.
565, 571, 176 So. 2d 297, 300 (1965) (granting a one-half fee to losing party upon remand).

¶58. Regardless of its origin, and despite its lengthy history, the one-half fee award should be fully retired. Ultimately, the needs and requirements of advocacy between the trial court and appeal can be very different, and a generic request for one-half the trial court fee does
not properly honor Rule 1.5 or its requirement of reasonableness. Therefore any attorney seeking fees from this Court or any other is best served by adhering closely to the McKee factors and demonstrating that the fee they seek is reasonable.


The Scope of Rule 59

April 8, 2019 § Leave a comment

MRCP 59 allows the chancellor to grant a new trial as to all or some issues in a case “for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.”

When granted, the chancellor may open the judgment “if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.”

The COA discussed the scope of a R59 ruling in its March 19, 2019, ruling in Warner v. Thomas. Judge McDonald wrote for the unanimous court:

¶28. With respect to the trial court’s ruling under Rule 59, we have stated that the chancery court’s authority to modify the final judgment is “limited” by Rule 59, and it is a “higher” standard than under Rule 54(b), which allows a trial court to set aside interlocutory decisions for any reason it sees just. Dissolution of Pevey v. Pevey, 2017-CA-01144-COA, 2018 WL 4089685, at *1 (¶5) (Miss. Ct. App. Aug. 28, 2018); Maness [v. K&A Enters. of Miss. LLC], 250 So. 3d [402] at 419 (¶¶69, 71) [(Miss. 2018)]. A party may only obtain relief on a motion for new trial upon showing: (1) an intervening change in controlling law, (2) availability of new evidence not previously available, or (3) the need to correct a clear error of law or to prevent manifest injustice. Miller v. Smith, 229 So. 3d 148, 154-55 (¶28) (Miss. Ct. App. 2016). To grant the motion under Rule 59, the chancery court need only be “convinced that a mistake of law or fact has been made, or that injustice would attend allowing the judgment to stand.” See Pevey, 2018 WL 4089685, at *2 (¶6); Maness, 250 So. 3d at 419 (¶69).

¶29. The appellate court reviews a trial court’s denial of a motion for a new trial for abuse of discretion. Miller, 229 So. 3d at 154 (¶27); McLaughlin [v. N. Drew Freight, Inc.], 249 So. 3d [1081] at 1084 (¶8) [(Miss Ct. App. 2018)]  . . .

The portion of R54 referred to above reads this way:

(b) . . . any order or other form of decision, however designated, which adjudicates fewer than all of the claims[,] or rights and liabilities of fewer than all the parties[,] shall not terminate the action as to any of the claims or parties[,] and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

So an R59 motion requires more than just asking the judge for a do-over. You have to have evidence or law that would have changed the outcome were it known at the time of hearing, and it was not known either because the law changed or evidence previously unknown after due diligence has come to light. You may also prevail by convincing the judge that she made a mistake of law or fact, or that the judgment creates an injustice; good luck with that.

The COA casts the issue thus: “Did the trial court err in denying the motion for reconsideration and/or motion for new trial [My emphasis]. The term “reconsideration” has been linked to R59 so often that, in my opinion, it has risen from the level of colloquialism to the point that we should seriously consider inserting it into the rule. Lawyers almost unanimously refer to the motion as one for “reconsideration.” The COA, as it did in this case, frequently uses that nomenclature for the motion. I have not searched carefully, but I believe the MSSC did also in a decision handed down last year. You can search the term in my Search box above and see how I have pushed against it. Even the Advisory Committee Notes point out that there is no such thing as a motion for consideration. Yet, the beat goes on. Maybe it’s just time to add it in and live with it.

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