GAP Act: General Provisions, Part II
October 9, 2019 § Leave a comment
Section numbers correspond to SB 2828.
Death, removal, or resignation (112):
Appointment terminates on death, removal, or resignation.
Resignation is effective only when approved by the court.
Death, removal, or resignation does not affect liability or duty to account.
Notice of Hearing (113):
Per MRCP 81.
Also: “Notice of hearing under this act must be in at least sixteen-point font, in plain language, and, to the extent feasible, in a language in which the person to be notified is proficient.”
Any person “interested in the ward’s welfare” may file a motion to intervene per MRCP 24.
Waiver of notice (114):
Any person entitled to notice, except the respondent or ward, may waive notice personally or by attorney.
GAL (115):
The court may appoint a GAL.
The GAL may not be the same person as the respondent’s attorney.
Request for notice (116):
Any person not otherwise entitled to notice may file a request showing the person’s interest and an address for notice. If the court approves, that person will be entitled to all future notices.
Disclosure of bankruptcy and criminal history (117):
Before appointment, person applying to be guardian or conservator must disclose to the court: (1) whether the person has ever been a debtor in bankruptcy, insolvency, or receivership; and (2) whether ever convicted of a felony, or a crime involving “dishonesty, neglect, violence, or use of physical force, or any crime relevant to the functions of guardian or conservator.
Compensation (118):
Attorney may be awarded fees and expenses after approval by the court.
Compensation may only be made after court approval, but court approval is not required before a service is provided or an expense is incurred.
If the court dismisses a petition and finds bad faith, the court may assess “any costs the court deems appropriate.”
Compensation of guardian or conservator(119):
Court may award guardian or conservator reimbursement of expenses and compensation for services. The statute spells out the factors the court must consider.
If the guardian or conservator has to defend a ward’s action to modify or terminate the guardianship or conservatorship, or to remove the guardian or conservator, the court may “order compensation” to the guardian or conservator “only to the extent the court determines the opposition was reasonably necessary to protect the interest of the ward.”
Liability (120):
A guardian or a conservator is not personally liable for actions of the ward.
Instruction or ratification (121):
A guardian or conservator may petition the court for instructions or ratification. Notice must be given and a hearing must be held.
Third-party acceptance of authority (122):
Under certain specified circumstances a third party may refuse to recognize authority of the guardian or conservator.
Temporary Substitute guardian or conservator (123):
Court may appoint and remove at any time. While the appointment is in effect, the powers of the existing guardian or conservator are suspended.
Registration of foreign judgment (124):
After registration of the foreign judgment of appointment, the foreign guardian or conservator may exercise all powers of the foreign law except as prohibited by the GAP Act and other Miss. law.
GAP Act CLE November 8
October 8, 2019 § Leave a comment
The Twelfth Chancery Court District and Lauderdale County Bar are sponsoring a 6-hour CLE seminar on the GAP Act on November 8, 2019, at the MSU Riley Center in downtown Meridian.
The program schedule:
800 – 900 Registration
900 – 905 Welcome
905 – 1005 Overview of the GAP Act — Attorneys Rick Courtney and Gray Edmondson
1005 – 1105 Forms to Make Your Job Easier — Chancellor Kiley Kirk and Attorney Whitney Thrasher
1105 – 1115 Break
1115 – 1215 Walk Through of a Guardianship — Chancellor Joey Kilgore
1215 – 1115 Special Lunchtime Speaker — Chief Justice Mike Randolph (Lunch Provided)
115 – 215 Walk Through of a Conservatorship — Chancellor Charles Smith
215 – 315 Best Practices in Fiduciary Matters — Chancellors Robert Logan and Larry Primeaux
315 – 330 Break
330 – 430 Ethics Hour — Professor Donald Campbell, MCLaw
Fee is $125 for pre-registration; $150 at the door. Space is limited, so register soon.
You can mail your check payable to Lauderdale County Bar Association, P. O. Box 1252, Meridian, MS, 39302. Please include your Miss. Bar no. on the check.
Filing A Motion Doesn’t Get You Automatic Relief
October 7, 2019 § 1 Comment
MRCP 7(b)(1) reads, “An application to the court for an order shall be by motion … .” A motion, then is merely a request for the court to enter an order; it’s not the order itself.
Put another way: a motion for continuance does not get you that continuance until the judge enters an order continuing; a motion to withdraw from representation does not get you out of the case until the judge signs an order letting you out.
This is basic stuff, but some lawyers don’t seem to get it.
In one case a couple of months ago a lawyer did not show up for a final hearing. The other attorney advised that he had filed a motion to withdraw the afternoon before, but he did not appear to present it to the court. He also did not provide a paper copy of it to the court as required by the MEC rules since it was within 24 hours of trial. As things developed, though, I doubt that I would have granted his motion because, as became painfully obvious in the course of the hearing, his client had an intellectual disability and struggled to present her side of the case. Struggled mightily. That earned that lawyer a show-cause order.
While I’m on the subject of motions to withdraw, has anybody read UCCR 1.08? Does anybody have a copy of it? Well, here it is in its elegant simplicity and entirety: “When an attorney makes an appearance for any party in an action, the attorney will not be allowed to withdraw as counsel for the party except upon written motion and after reasonable notice to the client and opposing counsel.”
It’s not enough to file the motion and present an agreed order signed by you and your client. It’s not enough to file a motion and present an agreed order signed by you and opposing counsel. As I have often said in chambers, “Give me an agreed order or set it for hearing,” meaning for a motion to withdraw to get your client and opposing counsel to sign off on it or set it for hearing.
I have had lawyers file motions for continuances and then call my staff attorney asking whether they have to show up. We always offer to hear those in chambers before the trial date if the lawyers both are willing to come. Often the reason is that the lawyer has a conflicting setting in another county. My question is: why would you take a case knowing you have a calendar conflict without first calling opposing counsel to see whether she will agree to a continuance? I know, you need the fee. But you are causing everyone a problem, the judge in particular (ok, that’s from my perspective).
“Quote Unquote”
October 4, 2019 § 9 Comments
“Imagine if the government chased sick people with diabetes, put a tax on insulin and drove it to the black market, told doctors they couldn’t treat them, then sent them to jail. If we did that everyone would know we were crazy. Yet we do practically the same thing every day in the week to sick people hooked on drugs.” – Billie Holiday, 1956
“Today, our nation is fighting two wars: one abroad and one at home. While the war in Iraq is in the headlines, the other war is still being fought on our own streets. Its casualties are the wasted lives of our own citizens. I am speaking of the war on drugs. And I cannot help but wonder how many more lives, and how much more money, will be wasted before another Robert McNamara admits what is plain for all to see: the war on drugs is a failure.” – Walter Cronkite, 2009
“There were fewer than 3,000 overdose deaths in 1979, when a heroin epidemic was raging in U.S. cities. There were fewer than 5,000 recorded in 1988, around the height of the crack epidemic. More than 64,000 Americans died from drug overdoses last year, according to the U.S. Centers for Disease Control and Prevention.” – Mike Strobe, 2017
GAP Act: General Provisions, Part I
October 2, 2019 § 1 Comment
Continuing with Intro to the GAP Act.
Section numbers correspond to SB 2828.
Subject matter jurisdiction (104):
Chancery Court has jurisdiction to: (1) determine need for a guardianship or conservatorship; (2) determine how to manage, expend, or distribute property of the ward and ward’s dependents; (3) handle all matters of guardianship or conservatorship administration.
Chancery has non-exclusive jurisdiction to determine claims against the ward or ward’s property, and questions of title.
Transfer (105):
Court may transfer to another county if that is in the ward’s best interest:
May transfer to another county or state if in the best interest of the ward. First a final conservatorship accounting is made, then the guardian or conservator qualifies in the new county, and then the case is closed in the original county.
If a proceeding to establish a guardianship or conservatorship is filed in another state while a complaint is pending in Mississippi, the court confers with the judge in the other state and decides whether to assume or decline jurisdiction, based on the best interest of the respondent.
Venue for guardianship (106):
For a minor: in the county where the minor resides or is “present at the time the proceeding commences.” Or, the county where a proceeding for custody or parental rights is pending.
For an adult: in the county where the adult resides or is institutionalized by court order; for an adult emergency order, the county where the respondent is present.
Venue for conservatorship (106):
In the county where the respondent resides, regardless whether a guardian has been appointed in another county, or, if the respondent does not live in Mississippi, then the county where the property of the respondent is located.
If actions are filed in more than one county, the first-filed has exclusive right to proceed unless the judge finds that venue is properly in another court or that justice requires transfer.
Practice (107):
Proceedings are per MRE and MRCP. No mention of UCCR.
Guardianship and conservatorship actions for the same individual may be consolidated.
Letters of guardianship and conservatorship (108):
Clerk must issue upon taking of oath, posting of any required bond, and submission of fiduciary’s certificate and attorney’s certificate. Bond may be waived, and the court can impose an alternative asset-protection arrangement.
Court may limit powers of the fiduciary initially or at any time. Limitations must be spelled out in the Letters. The clerk will issue new Letters if powers are later curtailed or expanded.
Limitations on powers must be spelled out in the Letters.
Submission to jurisdiction (109):
By accepting appointment the fiduciary submits to the jurisdiction of the court for proceedings related to the guardianship or conservatorship.
Co-Guardians and Co-Conservators (110):
“When the Court deems appropriate,” co-fiduciaries must comply with Section 108.
Successor fiduciaries (111):
The court may appoint a successor guardian or conservator at any time to serve immediately as ordered.
Any person entitled to petition for appointment of a guardian or conservator under Sections 202 or 302 may petition the court for appointment of a successor guardian or conservator.
A successor must comply with Section 108.
Resignation (112)
Guardian or conservator may resign only after filing a petition and order accepting.
Res Judicata and Subject Matter Jurisdiction — Yet Another Case
October 1, 2019 § Leave a comment
Last week I posted about the Abercrombie case which relied on Burgess v. Williamson to reach the conclusion that res judicata may operate to bar raising a claim of lack of subject matter jurisdiction on appeal.
Back in April, the COA faced the same issue and reached the same conclusion.
On April 3, 2016, a chancellor granted grandparent visitation rights to Toni Lisenby-Grundy, the paternal grandmother, with her grandson, John. The defendant in that case was the maternal grandmother, Jessie Lou Price. A year later Jessie was found in contempt for not allowing Toni her visitation. Jessie never appealed either of these judgments, and she never raised the issue of lack of jurisdiction in either of them.
Again, in May, 2017, Jessie was found in contempt for the same behavior.
Following the May, 2017, contempt judgment Jessie appealed, asserting as one ground that the contempt judgment is void because the trial court never had jurisdiction in the first place to award grandparent visitation. The basis for her jurisdictional challenge is that neither her husband, Roy, nor her daughter Theresa, had been joined as required by statute. A post on who are those required parties is at this link. Jessie charged that the failure of the court to have jurisdiction over all persons required to be joined voids the original judgment and all of its subsequent judgments and renders them unenforceable. In other words, the trial court never acquired subject matter jurisdiction.
In the case of Price v. Lisenby-Grundy, an April 16, 2019, decision, the COA rejected Jessie’s position and affirmed. Judge Carlton wrote the majority opinion:
¶26. At no time did Jessie challenge the court’s jurisdiction as to Toni’s original grandparent’s visitation action; nor did Jessie appeal the April 3, 2015 visitation order. [Fn 6] The doctrine of res judicata, therefore, bars Jessie’s attempt to challenge that order on jurisdictional grounds in this appeal. We find that Burgess v. Williamson, No. 2017-CA-00788-COA, 2018 WL 4705709 (Miss. Ct. App. Oct. 2, 2018) [270 So. 3d 1031 (Miss. Ct. App. 2018)], is instructive on this issue. In that case, Burgess appealed a May 9, 2017 contempt order against her based upon the court’s determination that she failed to comply with a final judgment awarding custody and support entered on September 8, 2015. Burgess, 2018 WL 4705709, at *2 (¶¶11-12). Among other issues on appeal, Burgess asserted that the chancery court “erred in assuming jurisdiction” over the matter. Id. at *2 (¶12).
6 We also observe that at no time did Theresa Price or Roy Price object to the chancery court’s jurisdiction on any basis, and neither Roy nor Theresa Price appealed the April 2015 visitation order.
¶27. We held that “if Burgess is trying to argue that the chancery court lacked jurisdiction to enter the original (September 8, 2015) final judgment awarding custody and support, her claim is barred by the doctrine of res judicata.” Id. at *3 (¶17). In so holding, we found that Burgess had defended the original proceeding on the merits, and did not appeal the September 8, 2015 judgment. The same is true in this case. Jessie was a party to Toni’s visitation action, participated in that action on the merits, and never challenged the chancery court’s jurisdiction on any basis. Indeed, Jessie Price’s attorney agreed to the form of the final order of visitation entered in the consolidated proceeding, which specifically provides that “[the] Court has complete and plenary jurisdiction over the subject matter and the parties involved herein.” Finally, Jessie did not appeal the April 2015 visitation order.
¶28. As we explained in Burgess, 2018 WL 4705709, at *3 (¶17), “[a]ny challenge to the . . . court’s jurisdiction should have been taken up in the original proceeding or on direct appeal from the original order.” In this regard, “[o]nce a case is litigated to a final judgment, and no appeal is taken, a party who participated in the original litigation cannot collaterally attack the court’s jurisdiction in a later proceeding.” Id. (citing Phillips v. Kelley, 72 So. 3d 1079, 1084 (¶18) (Miss. 2011) (“[S]ubject matter jurisdiction . . . may not be attacked collaterally.”) (quoting Travelers Indem. Co. v. Bailey, 557 U.S. 137, 152 (2009)). See also Dep’t of Human Servs. v. Shelnut, 772 So. 2d 1041, 1045 (¶13) (Miss. 2000) (“The principles of res judicata apply to questions of jurisdiction as well as to other issues whether the questions relate to jurisdiction of the subject matter or jurisdiction of the parties.”); Restatement (Second) of Judgments §12 (1982) (“When a court has rendered a judgment in a contested action, the judgment precludes the parties from litigating the question of the court’s subject matter jurisdiction in subsequent litigation [subject to three narrow exceptions, inapplicable in this case].”). We find the same principle applies here and bars Jessie’s attempt to challenge the April 3, 2015 visitation order on jurisdictional grounds.
Not much more to say about that.
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