Reprise: Some Suggested PSA Provisions
June 28, 2019 § Leave a comment
Reprise replays posts from the past that you may find useful today.
SOME SUGGESTED PROVISIONS FOR PSA’S
January 18, 2012 § 2 Comments
Every lawyer has his or her own idea about what needs to be included or not included in a property settlement agreement (PSA) for an irreconcilable differences (ID) divorce. Here are some provisions I have seen in PSA’s through the years that you might find helpful in specific instances.
Protection from debts incurred by the other party:
Debts. If either party has made any debt in the name of or against the credit of the other, the party making such debt shall be solely responsible to pay it promptly and in due course, and to indemnify the other. There are no other joint debts of the parties. Each party shall be solely responsible to pay the debts incurred by him or her in their own name. From and after the date of this agreement, neither will incur any debt in the name of or against the credit of the other, and neither will do any act or thing to impair the credit of the other. Each will indemnify and hold the other harmless for his or her obligation to pay any debt provided for in this Agreement.
Attorney’s fees:
Attorney’s Fees and Costs. Husband and Wife each agree to pay his or her own separate attorney’s fees incurred in obtaining a divorce on the sole ground of irreconcilable differences.
Where other documents will be necessary to finalize the entire settlement:
Execution of Documents. Husband and Wife each agree to execute and deliver promptly any and all documents, papers, agreements, assignments, titles, bills of sale, contracts, deeds, Qualified Domestic Relations Orders (QDRO’s), and other papers of every kind and nature whatsoever deemed necessary by the other to effect the spirit and intent of this Agreement.
To confirm and ensure that there are no unwritten or side agreements:
Entire Agreement. This Agreement constitutes the entire agreement between the parties, and each acknowledges that there are no other or further agreements not expressly included herein. This Agreement is contractual, and not merely a recital. The parties agree that no part of the consideration for this Agreement is any promise, inducement, representation, or agreement to obtain or maintain any divorce action in any Court. Each party acknowledges that this Agreement is entered into freely and voluntarily, without force, duress or influence by any person.
Release of all claims:
Final Settlement and Release of all Claims. Husband and Wife acknowledge that they have read this Agreement and carefully considered the same, and do further acknowledge that this Agreement permanently and finally resolves all marital and personal disputes between them, including, but not limited to, any and all claims for alimony, personal injury, defamation, invasion of privacy, torts of every kind and nature, and division of property rights between the parties hereto, and they do hereby mutually release each other from all claims that each has against the other, other than as specifically set forth in this Agreement, .
Where the parties want the agreement to be enforceable whether or not approved by the court*:
Approval by Court. The parties agree and stipulate that their Agreement shall be made a part of, and shall be incorporated into the Court’s Judgment of Divorce on the ground of irreconcilable differences. The parties understand and acknowledge that, although this Agreement is subject to approval by a court of competent jurisdiction in order for it to be incorporated into and made a part of any Judgment of Divorce between them, it shall nonetheless be a binding and lawful contract between them, and that its enforceability shall not be affected in any way by its approval or non-approval by any court in connection with any divorce action between them. If either party files any contest to a divorce between them, this Agreement shall nonetheless be enforced in all of its terms.
A useful provision to ensure that there are no open-ended obligations:
Date of the Agreement and Time to Perform. The date of this agreement shall be the date when it has been executed by both parties. If no specific time limit is stated for taking any action prescribed in this agreement, then the parties agree that all such actions will be accomplished in a reasonable time, but not later than thirty (30) days from the date of entry of any judgment of divorce between the parties on the sole ground of irreconcilable differences.
Where one party is not represented:
Representation. Husband is represented by [attorney]. Wife is not represented by an attorney, and she is representing herself, in connection with the execution of this agreement and in connection with any divorce proceeding between the parties. Wife is fully competent to do so, and she is under no legal or other disability. Wife understands that the law firm of [attorney] represents Husband alone, and Wife further acknowledges that she has relied on her own best judgment in connection with the execution of this agreement and in connection with any divorce proceeding between the parties, and that she has neither received, nor expects to receive, any counsel or advice from Husband’s attorney. Wife understands that she is and has been free to consult with any attorney at any time in connection with the execution of this agreement and in connection with any divorce proceeding between the parties. Wife understands that she should not sign this Agreement unless and until she understands all of its provisions in full.
Clarification that tax advice has not been rendered:
Tax Advice. The parties acknowledge and understand that there may be certain tax consequences pertaining to this Agreement, and that each of them should obtain independent tax advice from qualified tax accountants or tax counsel prior to signing. Husband acknowledges that he has not received tax advice from his attorney in connection with this Agreement and a divorce.
Closing the door on a party claiming later that the property should have been appraised:
Fair Division. The parties agree that this Agreement is a fair division of their assets and a fair allocation of debt between them. They acknowledge that the most accurate method of determining values of assets would be to have them appraised, but they agree to save time and money as to values by relying on their own best judgment.
If a former name is to be restored, it is a good idea to include that agreement in the PSA:
Name Change. Wife may, at her sole election, have her name changed to a name of her choosing in any final Judgment of Divorce between the parties.
There is no guarantee that any of these provisions will be effective in any given court. I am offering them as a suggestion for points you might want to cover in your own PSA’s. There are certainly better or other ways to state the same points.
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* “Today we hold that a property settlement agreement executed in contemplation of a divorce based upon irreconcilable differences is unenforceable when one party withdraws from the irreconcilable differences proceeding and seeks a divorce on grounds other than irreconcilable differences. Much confusion may be avoided by inserting appropriate language within the property settlement agreement which specifically addresses this contingency … the contract should specify, with particularity, within its four corners, whether it is to be limited to an irreconcilable differences divorce or whether it is intended to be binding in a divorce granted on any other grounds.” Grier v. Grier, 616 So.2d 337, 341 (Miss. 1993) [Emphasis added]. The unmodifiable (i.e. property settlement) provisions of the PSA may be enforced by the court sans a divorce, but the modifiable (i.e. child support and custody and periodic alimony) issues may not.
Reminder About the Chancery Judges’ Benchbook
June 26, 2019 § 1 Comment
Last month I posted that the Mississippi Judicial College is unlocking the Benchbook for Mississippi Chancery Judges so that it will be accessible to all.
So I am reminding you that you will be able to access this great resource beginning July 1 at this link.
When is Recusal Required in a Contempt Case?
June 25, 2019 § Leave a comment
Shanna Hayes was found in constructive criminal contempt by the chancellor for refusing to allow her ex-husband his court-ordered visitation. On appeal, she argued that the judge erred by not recusing himself. In the case of Hayes v. Hayes, decided May 7, 2019, at ¶27, the following statement appears:
“We do find that she was in a position to request that the trial judge recuse himself; rather, she waived that opportunity. Shanna admittedly did not object until after the trial court rendered its decision. In fact, Shanna allowed the trial court to adjudicate her rights and failed to file a motion asking the judge to recuse. “The failure to seek recusal generally is considered implied consent to have the judge go forward in presiding over the case.” Latham v. Latham, 261 So. 3d 1110, 1113 (¶9) (Miss. 2019) (citing Rice v. State, 134 So. 3d 292, 299 (¶16) (Miss. 2014)); see also Tubwell v. Grant, 760 So. 2d 687, 689 (¶8) (Miss. 2000) (holding where the party knew of the grounds for the motion or with the exercise of reasonable diligence may have discovered those grounds, and where that party does not move timely prior to trial, the point will be deemed waived). Therefore, we take the same position as the majority court in Latham and find that because Shanna failed to object to the judge’s recusal and preserve the issue for appeal, any assignment of error relative to that issue is waived. See Latham, 261 So. 3d at 1115 (¶20).”
To me, that statement is somewhat misleading. It appears to suggest that you have the right in every constructive criminal contempt case to ask the court to recuse. If that’s what it is trying to say, that’s inaccurate, as we will see. But first, let’s consider the two species of criminal contempt. There is direct criminal contempt, which is contemptuous conduct committed in the presence of the court, and it may be dealt with immediately. And there is constructive criminal contempt, which is contemptuous conduct that occurs outside the presence of the court, and it requires that the defendant be given notice of the alleged misconduct and a hearing.
Most constructive contempt occurs between the parties, as above when Ms. Hayes denied her ex his visitation rights. It doesn’t make any sense that a judge should have to recuse in that kind of case. But what about where the judge generates the case? A possible example might be where a deputy overheard an angry litigant in the hallway, outside the judge’s presence, mutter to a friend, “I’m going to kill that judge for that,” and the deputy reports it to the judge, who initiates a contempt action.
Justice Maxwell, wrote a helpful specially concurring opinion in the MSSC’s Latham v. Latham, decided January 17, 2019, in which he fleshes out the distinction:
¶27. I agree with the majority that, by not requesting that the chancellor recuse, Roger has waived this issue on appeal. But given Roger’s argument, I find it would be helpful to Roger—as well as the bench and bar—to explain why, in this particular constructive criminal-contempt case, Roger had to request the chancellor recuse to preserve this issue.
¶28. Part of Roger’s argument is that recusal could not be waived. He suggests it was the chancellor’s duty to recuse sua sponte given the nature of the contempt. As Roger sees it, our caselaw mandates judges recuse in every case involving constructive criminal contempt. Roger’s view hinges on his reading of two cases—Cooper Tire & Rubber Co. v. McGill, 890 So. 2d 859, 868 (Miss. 2004), and In re Smith, 926 So. 2d 878, 888 (Miss. 2006). He argues that, when read together, the cases “extend” the requirement to recuse sua sponte in any case involving constructive criminal contempt. But a closer look shows that neither case alters this Court’s well-established standard for when a judge must recuse in a constructive criminal-contempt case. Instead, both cases maintain that “[i]t is necessary for that individual to be tried by another judge in cases of constructive contempt where the trial judge has substantial personal involvement in the prosecution.” Smith, 926 So. 2d at 888 (emphasis added) (quoting In re Williamson, 838 So. 2d 226, 238 (Miss. 2002)); see also Cooper Tire, 890 So. 2d at 869.
¶29. In other words, it is not simply the nature of the contempt that mandates recusal. Indeed, the constructive criminal nature of the contempt is just part of the inquiry. The judge must also have “substantial personal involvement in the prosecution” to trigger the due process requirement that the matter be tried by another judge. Corr v. State, 97 So. 3d 1211, 1215 (Miss. 2012) (quoting Graves v. State, 66 So. 3d 148, 151 (Miss. 2011)). “Examples of ‘substantial personal involvement in the prosecution warranting recusal include cases where the trial judge acts as a ‘one-man grand jury;’ where the trial judge is ‘instrumental in the initiation of the constructive-contempt proceedings;’ and where the trial judge ‘acts as prosecutor and judge.’” Id. (quoting Graves, 66 So. 3d at 154). E.g., Corr, 97 So. 3d at 1215 (holding that the chancellor had substantial personal involvement because he initiated the contempt proceeding when he issued show-cause orders); In re Williamson, 838 So. 2d at 238 (holding that the chancellor had substantial personal involvement because he was a material witness in the contempt proceeding).
¶30. Here, Roger does not even argue the chancellor had substantial personal involvement in the prosecution of the contempt proceeding—a proceeding admittedly initiated by his wife. Nor does the record support such a finding. So the chancellor was not required to recuse sua sponte. As the majority explains, recusal was discretionary. And the chancellor can hardly be said to have abused his discretion by not recusing when he was never asked to do so.
That’s about as clear a statement as one could hope for on the issue.
A Pure Tort Case in Chancery Court
June 24, 2019 § Leave a comment
Jhonte Wiggins received $350,000 in a personal-injury settlement. Almost all of the money wound up in accounts of his fiancé, Chasity Anderson. Jhonte became seriously ill and died. His mother, Darnice Wiggins, was appointed administratrix of her son’s estate, and, as administratrix, Darnice sued Chasity for conversion. The chancellor granted summary judgment, and Chasity appealed claiming that chancery court lacked subject matter jurisdiction.
The COA affirmed in Anderson v. Wiggins, decided May 14, 2019. Here is how Judge Greenlee’s opinion addressed the issue:
¶8. Anderson argues that chancery court was not the proper court in which to file a claim for conversion. She asserts that the court lacked subject-matter jurisdiction over the claim. “The question of subject matter jurisdiction is an issue of law to which this Court must apply a de novo standard of review.” In re Adoption of J.D.S., 953 So. 2d 1133, 1136 (¶11) (Miss. Ct. App. 2007).
¶9. Our State’s Constitution limits chancery-court jurisdiction:
The chancery court shall have full jurisdiction in the following matters and
cases, viz.:
(a) All matters in equity;
(b) Divorce and alimony;
(c) Matters testamentary and of administration;
(d) Minor’s business;
(e) Cases of idiocy, lunacy, and persons of unsound mind;
(f) All cases of which the said court had jurisdiction under the laws in
force when this Constitution is put in operation.
Miss. Const. art. 6, § 159.
¶10. The matter before us is a conversion claim. “Although property of which conversion is alleged is in the custody of a chancery court,” Georgia-Pac. Corp. v. Blakeney, 353 So. 2d 769, 772 (Miss. 1978) (quoting 18 Am. Jur. 2d Conversion § 135 (1955)), an action for conversion alone is best heard in the circuit court. But if “there is one issue of exclusive equity cognizance, that issue can bring the entire case within subject matter jurisdiction of the chancery court and that court may proceed to adjudicate all legal issues as well.” Newton v. Brown, 198 So. 3d 1284, 1288 (¶20) (Miss. Ct. App. 2016) (internal quotation marks omitted).
¶11. Wiggins’s complaint only asserts a claim for conversion. She does not indicate any other tort or any other claim for the chancery court to consider. She asserts that the protection of the estate’s assets entitles her to jurisdiction within the chancery court. She contends that Anderson cannot now claim a lack of subject-matter jurisdiction because the chancery court already rendered its decision. But jurisdictional challenges may be raised at any point during litigation, as well as on appeal. Pierce v. Pierce, 132 So. 3d 553, 560 (¶14) (Miss. 2014). Mississippi Rule of Civil Procedure Rule 12(h)(3) provides that “[w]henever it appears by suggestion that the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action or transfer the action to the court of proper jurisdiction.” Additionally, our state constitution determines the ability of appellate courts to reverse a judgment of a chancery court when it lacks jurisdiction:
No judgment or decree in any chancery or circuit court rendered in a civil cause shall be reversed or annulled on the ground of want of jurisdiction to render said judgment or decree, from any error or mistake as to whether the cause in which it was rendered was of equity or common-law jurisdiction; but if the Supreme Court shall find error in the proceedings other than as to jurisdiction, and it shall be necessary to remand the case, the Supreme Court may remand it to that court which, in its opinion, can best determine the controversy.
Miss. Const. art 6, § 147.
¶12. At the summary-judgment hearing, the chancery court discussed the jurisdictional concerns and found that it had jurisdiction over the claim. Specifically, it found that under Wiggins v. Perry, 989 So. 2d 419, 430 (¶28) (Miss. Ct. App. 2008), Anderson could not complain about subject-matter jurisdiction after the court ruled on the motion for summary judgment.
¶13. In that case, Wiggins did not raise the issue of subject-matter jurisdiction until after the chancery court granted summary judgment. Therefore, on appeal, our court was unable to reverse the case on the issue of subject-matter jurisdiction alone. Id. at 430-31 (¶28). We ultimately reversed the decision on other grounds and remanded the case with instructions that it be transferred to the proper court. Id. at 433 (¶47).
¶14. In the present case, the chancery court held:
Now, [the Mississippi Constitution] says a lot. And our case law says even more. In one case . . . it is stated that: “Because a party did not raise the issue of subject matter jurisdiction until after summary judgment had been granted in favor of the adverse party, the reviewing court could only reverse for lack of subject matter jurisdiction where there was also some other trial court error warranting reversal.”
The chancery court found that subject-matter jurisdiction was never an issue before the motion for summary judgment. In her answer to the conversion complaint, Anderson asserted lack of subject-matter jurisdiction as an affirmative defense. But at no point thereafter did she actively pursue that defense. In fact, she never filed any motion based on those grounds. As in Wiggins, without some other error, precedent prevents us from reversing this case on
the issue of subject-matter jurisdiction alone in this situation. [Fn 1]
[Fn 1] 3 Jeffrey Jackson, Mary Miller, and Donald Campbell, Encyclopedia of Mississippi Law § 19:188 (2d ed. 2018) (“Ordinarily, a court of appeals could reverse for lack of subject matter jurisdiction in the trial court even where the parties may not have raised the issue. Section 147 of the Mississippi Constitution provides that the supreme court is without power to reverse where the only error found is ‘want of jurisdiction to render said judgment or
decree, from any error or mistake as to whether the cause . . . was of equity or common-law jurisdiction.’”); James W. Shelton, Miss. Chancery Prac. § 2:7 (2018) (“[T]he Constitution prohibits the Supreme Court from reversing a case where the only error is that the case was brought in chancery court when it should have been brought in circuit court, or vice versa.”); c.f. Waits v. Black Bayou Drainage Dist., 186 Miss. 270, 185 So. 577, 578 (1939) (“Section 147 of the Constitution has no application. It provides that no cause shall be reversed by the Supreme Court on the ground alone of a mistake in the trial court as to whether it is of law or equity jurisdiction. The trouble here is that neither the chancery court nor the circuit court had jurisdiction of this cause, as we will undertake to demonstrate. In the case of Indianola Compress & Storage Co. v. Southern R.R. Co., 110 Miss. 602, 70 So. 703, [704 (Miss. 1916),] [s]ection 147 of the Constitution applied for it was not a question of jurisdiction, but a mistake in jurisdiction.”).
I posted about a circuit judge reforming a deed on June 5, 2019.
Thoughts on Oliver
June 11, 2019 § Leave a comment
We talked yesterday about the Oliver estate case and the appellant’s allegations that the chancellor was biased and should have recused herself. Here are some ruminations:
- The chancellor is presumed to be impartial, qualified, and unbiased, and the burden is on the party moving to overcome the presumption by proof beyond a reasonable doubt. The appellate courts have described this as a “heavy burden.”
- If you will read the facts in Oliver, Sandra was not only warned by the judge not to file scandalous, impertinent, and even libelous material in the action, but the chancellor even sanctioned her. No doubt the chancellor became exasperated with Sandra’s conduct. But exasperation and impatience do not equate to bias or prejudice.
- You won’t have much success in getting a judge to recuse if you wait until after an adverse ruling to ask for recusal.
- UCCR 1.11 imposes deadlines on when you must file a motion to recuse. It must be filed within 30 days of the date when the parties are notified of the judge assigned to the case, or within 30 days of the date when the party first learns of a basis to seek recusal, if that information was not known to the movants when they learned the identity of the judge.
- Note the language from Tubwell cited in ¶108: ” Where the party knew of the grounds for the motion or with the exercise of reasonable diligence may have discovered those grounds, and where that party does not move timely prior to trial, the point will be deemed waived” [my emphasis]. So that language in UCCR 1.11 about information not known to the movant needs to be understood as meaning not only not known, but also not known after exercising reasonable diligence.
- Sandra also argued that her filing of a judicial performance complaint against the judge mandated that the judge recuse herself. Our appellate courts have not favored litigants creating their own grounds for recusal in that fashion. In the cited Adams case, the appellant tried to oust a judge she didn’t like by filing suit against her in federal court, and by filing bar and judicial complaints. It didn’t work.
- If you want to charge a judge with being combative, antagonistic, discourteous, and adversarial, as Sandra tried here, your blueprint is the Smith v. Bermudez case cited in ¶112.
An Exasperated Judge is not Necessarily a Biased Judge
June 10, 2019 § Leave a comment
Sandra Oliver was a party in chancery court hearings involving probate of her grandmother’s estate and partition of her real property. The chancellor’s ruling on the merits were not to her liking, and she appealed pro se.
One of the issues she raised on appeal was that the chancellor should have recused herself because she was biased against her and her father. In Estate of Oliver: Oliver v. Oliver and Carney, decided April 16, 2019, the COA affirmed. The portion of Judge Carlton’s opinion addressing the issue is longer than I usually quote, but I think you will find it helpful:
¶103. Sandra asserts that her and her father’s due process rights were violated at hearings before Chancellor Daniels that took place in both the partition and estate matters due to the chancellor’s alleged bias against her. We find Sandra’s contentions without merit. ¶104. The supreme court has recognized that “[t]his Court presumes that a judge, sworn to administer impartial justice, is qualified and unbiased. For a party to overcome the presumption, the party must produce evidence of a reasonable doubt about the validity of the presumption.” Kinney v. S. Miss. Planning & Dev. Dist. Inc., 202 So. 3d 187, 194 (¶20) (Miss. 2016) (internal quotation marks and citations omitted). Continuing, the supreme court explained that “[r]easonable doubt may be found when there is a question of whether a reasonable person, knowing all of the circumstances, would harbor doubts about the judge’s impartiality. Said another way, the presumption is overcome only by showing beyond a reasonable doubt that the judge was biased or unqualified.” Id.; see Washington Mut. Fin. Grp. LLC v. Blackmon, 925 So. 2d 780, 785 (¶12) (Miss. 2004) (recognizing the “heavy burden” a movant bears in proving that a judge’s purported hostility requires recusal).
¶105. Sandra contends that the chancellor displayed “biased actions” in the partition action at the February 2, 2015 hearing on Sandra’s motion to controvert, the Carneys’ motion in limine to exclude testimony or evidence relating to any claim that Sandra may have due to the actions of J.C., and issues relevant to that motion raised in Sandra’s pro se motion to correct facts. Sandra was represented by counsel at that hearing. In her brief, Sandra refers to this hearing as a “non-hearing,” and contends that the chancellor showed bias because she did not allow presentation of evidence or testimony. We disagree.
¶106. At the beginning of the hearing, the chancellor observed that Sandra had “explain[ed] her whole case” in her pro se motion to correct facts. The chancellor then stated on the record that she had “read the entire [court] file and not just the motions that are noticed for hearing today . . . [and that she] under[stood] very thoroughly what the issues [were and] the issues that [Sandra tried] to raise . . . .” The chancellor then heard argument of counsel at length, and discussed numerous points of law with counsel. In our review of the hearing transcript, we find no indication that the chancellor displayed bias in any way at the February 2, 2015 hearing.
¶107. Regarding subsequent hearings before Chancellor Daniels, Sandra states in her brief that after the February 2, 2015 “non-hearing,” she “filed a formal complaint with the judicial committee against Judge Daniels based on all of the biased actions, reactions, denial of a hearing and presenting of any testimony as well as remarks made at the February 2nd, 2015 hearing.” Sandra’s judicial performance complaint against Chancellor Daniels was filed in June 2016, at least three months before the September 27, 2016 final partition hearing before Chancellor Daniels, and five months before the November 14, 2016 hearing in the estate action, also before Chancellor Daniels. On appeal, Sandra claims that her filing of the judicial performance complaint against Chancellor Daniels in June 2016 is a basis for requiring Chancellor Daniels’s recusal at these subsequent hearings.
¶108. As to this argument, we observe that Sandra did not object or file a motion in either the partition or estate action asking Chancellor Daniels to recuse. Sandra’s argument about Chancellor Daniels’s alleged bias was not raised until her appeal, which procedurally bars her from arguing the issue in this case. Tubwell v. Grant, 760 So. 2d 687, 689 (¶8) (Miss. 2000). As the supreme court recognized in Tubwell:
Over the years, this Court has been quick to point out that it will not allow a party to take his chances with a judge about whom he knows of [alleged] grounds for recusal and then, after he loses, file his motion. Where the party knew of the grounds for the motion or with the exercise of reasonable diligence may have discovered those grounds, and where that party does not move timely prior to trial, the point will be deemed waived. Id.
As a result of her untimely objection, Sandra has waived this issue. See also Latham v. Latham, 261 So. 3d 1110, 1113 (¶¶9-11) (Miss. 2019) (holding that appellant waived recusal argument on appeal where he knew the ground for June 2016. In Adams, 249 So. 3d at 467-68 (¶¶15-21), Elle Adams made the same argument, asserting that the chancellor in that case should have recused herself because Elle had filed a state bar complaint and federal action against the chancellor. We rejected Elle’s argument,
finding that the chancellor’s awareness of the federal action against her, and the pending state bar complaint, did not require recusal where there was “no evidence that the chancellor’s impartiality might be reasonably questioned.” Id. at 468 (¶21). We find that the same analysis applies in this case.
¶111. Sandra quotes from the September 27, 2016 final partition hearing as an example of the chancellor’s “grudge” against her. But in this excerpt the chancellor, at most, is expressing frustration with the parties’ inability to reach an agreement on any detail, including what half of the property they wanted (“I was hoping y’all could at least agree on one thing, but obviously y’all cannot agree on whether the sun is shining outside or not.”). Our review of the transcript from the September 27, 2016 hearing shows no bias warranting recusal.
¶112. Similarly, Sandra quotes snippets of exchanges from the November 14, 2016 hearing in the estate case that she claims demonstrates the chancellor’s alleged animosity towards her. These include exchanges such as the chancellor telling Sandra that “[i]f you have a problem with my ruling, appeal it[;]” and the chancellor’s admonishment to Sandra to “be careful[,]” stated in the context of Sandra representing herself. These statements, particularly when read in context, are nowhere near the “combative, antagonistic, discourteous, and adversarial” conduct that would lead a reasonable person to conclude that Sandra did not receive a fair hearing. Cf. Schmidt v. Bermudez, 5 So. 3d 1064, 1074 (¶¶19-21) (Miss. 2009) (finding that a chancellor’s “abusive and inappropriate conduct,” including, but not limited to, repeatedly questioning a party’s honesty, badgering that party during cross-examination regarding evidence to be presented in her own case, and accusing the party of “diarrhea of
the mouth” violated party’s substantive right to a fair trial). Sandra also quotes an exchange in which the chancellor refused to let Sandra testify about ad valorem tax issues—but, as the chancellor explained in the next line of the transcript (not included in Sandra’s snippet), this was because Sandra was trying to raise issues already ruled upon at the final partition hearing. Nothing in that exchange suggests a lack of impartiality in any way.
¶113. In short, our review of the September 27, 2016 and November 14, 2016 hearing transcripts does not reveal any exchange between Sandra and the chancellor that suggests any hostility, lack of impartiality, or ill will on the chancellor’s part so as to result in a “manifest miscarriage of justice” in this case. We reject this assignment of error.
Some comments tomorrow.
“Quote Unquote”
June 7, 2019 § Leave a comment
“It doesn’t matter who my father was; it matters who I remember he was.” — Anne Sexton
“To become a father is not hard; to be a father is.” — William Busch
“One day he was repairing the light fixture in the bathroom. He asked me to hold one of his hands and to grip the faucet of the bathtub with my other hand. I did this. Then he licked the index finger of his free hand and stuck it in the socket where the light bulb had been. As the electricity passed through him and into me and through me and was grounded in the faucet of the bathtub, my father kept saying, ‘Pal, I won’t hurt you. I won’t hurt you.’ If I had let go of the faucet both of us would have died. If I had let go of his hand, he would have died.” — James Alan McPherson
The Equitable Power of the Circuit Court
June 5, 2019 § 1 Comment
When Trustmark Bank foreclosed on Odell and Renodda Dorman’s property, it was discovered that the property description of the Dorman’s 6-acre residence was not included. With that discovery, the Dormans moved back home. The bank filed suit in circuit court for a deficiency judgment, and the Dormans counterclaimed for wrongful foreclosure on their residence. In turn, the bank moved to amend to plead mutual mistake, which the court granted. The bank moved for summary judgment, in the course of which the bank somehow requested reformation of the deed for mutual mistake. The court ordered reformation of the deed and granted summary judgment. The Dormans appealed.
Before we go to the next step, the point needs to be made that reformation of an instrument is a quintessentially equitable process. If you were going to file an original action for reformation, you would file it in chancery court. So was the circuit judge in error by granting equitable relief in this case? The argument that the Dormans made before the COA was that the circuit court lacked subject matter jurisdiction, and so the judgment was void.
In Dorman v. Trustmark, decided May 7, 2019, the COA affirmed on the issue of subject matter jurisdiction. Chief Judge Barnes wrote for the unanimous court:
¶9. Before addressing the substantive issues raised on appeal, we first consider the Dormans’ claim that the circuit court lacked subject-matter jurisdiction. Trustmark’s complaint requested recovery of a deficiency judgment on a loan, which the Dormans acknowledge was properly before the circuit court as a matter of law. However, the circuit court allowed Trustmark to amend its answer to the Dormans’ counterclaim to assert reformation and mutual mistake as a defense. At the motions hearing, the circuit judge questioned whether he had the power to reform the deed, noting: “It’s just I think that the place for that correction is in front of a chancellor.” After briefing by the parties on the issue, the court determined in its final judgment that it had subject-matter jurisdiction over the claims. The Dormans now argue that Trustmark tried to “back door” the issue of reformation by filing the complaint for the deficiency judgment and that the bank “should have sought reformation in chancery court.”
¶10. “To determine whether a court has subject[-]matter jurisdiction, we look to the face of the complaint, examining the nature of the controversy and the relief sought.” RAS Family Partners LP v. Onnam Biloxi LLC, 968 So. 2d 926, 928 (¶11) (Miss. 2007) (emphasis added). “If the complaint seeks legal relief, even in combination with equitable relief, the circuit court can have proper subject[-]matter jurisdiction.” Id. “[E]quitable claims are more appropriately brought before a circuit court when they are connected to a contractual relationship or other claims tied to questions of law.” Era Franchise Sys. Inc. v. Mathis, 931 So. 2d 1278, 1283 (¶14) (Miss. 2006).
¶11. As the court noted, Trustmark’s complaint asserted a legal claim for a deficiency judgment; the issue of mutual mistake later arose as an affirmative defense to the counterclaim. The Mississippi Supreme Court has held that once a circuit court acquires subject-matter jurisdiction of an action at law, “it may hear and adjudicate in that action all claims, including those with an equitable smell, arising out of the same transaction and occurrence as the principal claim.” Hall v. Corbin, 478 So. 2d 253, 255 (Miss. 1985). This includes “other claims (whether asserted by the one or more of the original parties or by new or intervening parties), ancillary or pendent to the original claim,” even if those claims “standing alone may have been beyond the court’s jurisdiction.” Id. Because Trustmark’s equitable claim was raised as a defense to the Dormans’ counterclaim, we find no error in the circuit court’s determination that it had subject-matter jurisdiction of Trustmark’s claim for reformation of the DOT.
The COA reversed the grant of summary judgment because there was a fact issue of mutual mistake and remanded for further proceedings.
Some years ago an attorney told me that he wanted to file a 2-count complaint: Count I for alienation of affection against the defendant and his paramour; and Count II for divorce against the defendant for divorce and related relief. I told him that, if he did I would transfer the case to circuit court; our law is that once a case is transferred it can not be transferred back to the transferring court. We had a good laugh over that. The idea of a circuit judge (and possibly a jury) having to grope their way through a divorce was rife with comedic possibilities. When I mentioned it to a circuit judge, though, he simply smiled and said, “No problem; I would just appoint you as special master to hear the divorce.” That put an end to that.
Medical Bills and Minor’s Settlements
June 4, 2019 § Leave a comment
Stacy, age 8, is injured in an automobile accident. Her medical bills are $17,000 for the hospital, $800 for ambulance and EMT, and $1,200 for miscellaneous doctors and other medical. Total is $19,000.
Whom should the judge order to pay the bills? Stacy? Her parents? Leave them unpaid? The questions seem almost absurd. Sould an 8-year-old child be expected to pay her own medical bills? Aren’t medical bills the kind of thing that parents provide for their children? But what if the parents don’t have the ability to pay? And if we leave the bills unpaid, what impact will that have on the ability of the parents to access medical care for Stacy in the future?
All of those questions are what the judge needs answered in the course of a minor’s settlement. But often those kinds of questions are left unasked. Worse … when I try to ask the petitioners (usually parents) why they want the bills to be paid out of the proceeds of a minor’s settlement, they have no clue about what I am asking. It’s obvious that the issue has never been discussed between attorney and client.
It’s been the expectation for a long time that medical bills for the child will be paid out of the child’s settlement proceeds. But that came into question after Gulfport Memorial Hospital v. Proulx, which you can read about at this link, which held essentially that medical providers do not have a statutory lien against settlement proceeds, and, therefore, they do not have the right to collect from them.
So when you ask the court to pay medical bills out of the minor’s settlement proceeds, you are asking the court to order the minor (or her guardian) to pay her own expenses. To accomplish that you have to put some evidence in the record that it is in the child’s best interest to order that. My suggestion is that you offer proof that: (1) the parents do not have the financial ability to pay; (2) ordering the parents to pay will impose undue financial hardship on the family; (3) the bills can not be left unpaid because those medical providers may refuse service in the future because of the unpaid balances.
I usually ask questions to elicit that information if the lawyers do not because I want justification in the record. Instead, what I get is blank stares. It doesn’t have to be that way. Prepare your witness. Be ready to put justification in the record for ordering the child to pay her own expenses.
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