November 28, 2019 § Leave a comment

Thanksgiving Holiday

Courthouse closed

Next post December 2, 2019

R.I.P. Chancellor William Willard

November 27, 2019 § 3 Comments

Chancellor Willard of Clarksdale, was retired Chancellor of the 7th District.

Reportedly died when he suffered a heart attack while scuba diving with his family in the Caymans on November 25, 2019.

The official MSSC press release:

Retired Chancellor William G. Willard Jr. of Clarksdale died Nov. 25 while vacationing with his family in the Cayman Islands. Funeral arrangements are incomplete. Meredeth Nowell Funeral Home in Clarksdale is handling arrangements.

Judge Willard retired from the bench in December 2010 after serving 12 years as Chancellor of the 7th Chancery District that includes Bolivar, Coahoma, Leflore, Quitman, Tallahatchie and Tunica counties. He returned to private law practice in Clarksdale. Before his service as chancellor, he served for nine and one-half years as Clarksdale Municipal Judge. He also served on the Bar Complaints Tribunal.

R.I.P. Judge Billy Bridges

November 26, 2019 § 4 Comments

From the MSSC press release:

Retired Mississippi Court of Appeals Chief Judge Billy G. Bridges died on Nov. 25 at his home in Brandon. He was 85.

A funeral service will be held on Saturday, Nov. 30, at 11 a.m. at Ott and Lee Funeral Home in Brandon. Visitation will be Friday, Nov. 29, from 5 to 7 p.m. and Saturday, Nov. 30, from 9 to 10:30 a.m. Interment will be in Floral Hills in Pearl.

Judge Bridges served on the Court of Appeals for 11 years. He was one of the original members of the Court of Appeals. He was elected in 1994, and the Court of Appeals began hearing cases in January 1995. Judge Bridges served as Chief Judge from January 31, 1997, until February 17, 1999. He was named Presiding Judge on April 30, 2004. He retired Dec. 31, 2005, but did not hang up his robe. He became a senior status judge and presided over cases in the trial courts as a special judge for many years.

Supreme Court Justice Leslie D. King served together with Judge Bridges on the Court of Appeals. “We became close friends as we worked together. Billy was a very thorough and considered individual in his work. He took his time in looking very carefully at the matters before the Court. He cared a great deal about his work and the people who came before the Court,” Justice King said. “He was also concerned about the judiciary and the appearance of the judiciary to the public. Billy was a fine example of what you would want to see in a judge. He is someone whom I’m happy to have known as a colleague and a friend.”

Court of Appeals Chief Judge Donna Barnes of Tupelo also served with Judge Bridges. “It was an honor to serve with him. The vast experience he brought to Court of Appeals deliberations was truly remarkable,” she said.

Before his election to the Court of Appeals, Judge Bridges served as a chancery judge of the 20th Chancery District of Rankin County. He was district attorney for the 20th Circuit Court District of Rankin and Madison counties, and Rankin County prosecuting attorney. He served in other legal positions including board attorney for the Town of Florence, the Town of Pelahatchie, the Rankin Medical Center, and the Rankin County School Board. He spent more than 38 years in public service, not including his work as a senior status judge. He practiced law in Rankin County for 33 years. Former Supreme Court Chief Justice James W. Smith Jr. was one of his law partners in private practice.

Judge Bridges grew up in Pearl. His family moved from Simpson to Rankin County when he was two. He graduated from Pearl High School in 1952. He attended Hinds Community College before going to the University of Mississippi, where he earned a bachelor of business administration degree in 1958. Judge Bridges pursued his study of law at the University of Mississippi School of Law and was awarded an LLB degree in 1961 and a Juris Doctor in 1968.

Judge Bridges served in the U.S. Marines during the Korean War, attaining the rank of sergeant. He went to college on the GI Bill.

Judge Bridges held membership in a number of prestigious legal organizations including Who’s Who of American Judges, American College of Trial Judges, Mississippi Bar Foundation, Mississippi Municipal Attorneys Association, American Society of Hospital Board Associations, Mississippi Hospital Board Attorneys, and the Mississippi Continuing Judicial Education Committee.

He was a member of Crossgates Baptist Church in Brandon and was affiliated with Gideons International.

Power of the POA

November 25, 2019 § 1 Comment

It sometimes happens that a client comes bearing process with a complaint attached alleging that he has a POA (power of attorney) and is guilty of self-dealing. “But,” he explains, “look at the POA. It clearly says right here that I have ‘full authority to handle, in his exclusive discretion, all matters and things in which [the principal] may be interested, in either business or personal affairs.'” He looks at you almost confidently, but certainly hopefully.

That was an element of the litigation between the estate of Dorothea Kolf and her surviving husband, Peter. The couple had executed a pre-marital agreement that provided each would own and surrender any claim to the other’s assets that predated the marriage. Peter, however, acting under a broad-power POA, withdrew some money from Dorothea’s accounts after she became cognitively incapacitated. A chancellor ordered him to repay into the estate the funds he had not used expressly for her benefit, and Peter appealed.

In Kolf v. Authement, Ex Rel. Estate of Kolf, handed down October 22, 2019, the COA affirmed on the chancellor’s ruling that Peter had misused the POA. Here is what Judge Barnes had to say for the court on point:

¶12. Alternatively, Peter argues that he had authority under the general power of attorney (POA) to withdraw the IRA funds. As stated, Dorothea executed the POA on August 7, 2008, naming Peter as her attorney-in-fact for financial purposes. The POA granted Peter “full authority to handle, in his exclusive discretion, all matters and things [in] which [Dorothea] may be interested, either business or personal affairs.”

¶13. The issue before us on appeal is whether the chancery court erred in awarding the IRA funds to Dorothea’s estate. Because the funds were Dorothea’s separate property under the terms of the Agreement, thereby making them a future estate asset, any authority that Peter may or may not have had to withdraw those funds under the POA is irrelevant. Moreover, an agent’s authority under a POA “does not permit the attorney-in-fact to engage in undisclosed, self-dealing activities.” West v. Johnston (In re Estate of Johnson), 237 So. 3d 698, 707 (¶23) (Miss. 2017).

“It 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.” McKinney v. King, 498 So. 2d 387, 388 (Miss. 1986). If disputed, the attorney-in-fact’s actions must be shown to be within the principal’s intent when granting the power of attorney, in the best interests and for the benefit of the principal, and in accord with the duty of good faith owed by the attorney-in-fact to the principal. Any property or interest obtained in violation of the attorney-in-fact’s fiduciary duty “thereby is voidable by, and may be set aside by the principal or his estate.” Id. In re Estate of Johnson, 237 So. 2d at 707 (¶22).

There was substantial evidence that the transfer of the IRA funds was not done with Dorothea’s “free consent.”

Unsurprisingly, the court ruled that the duty of good faith and fair dealing trumps the powers of the POA, no matter how broad and comprehensive they might be. And that’s pretty much the result that you can expect in every similar case. You can tell your client that.

Reprise: What’s in a Name … Change?

November 22, 2019 § Leave a comment

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

Naming Names

April 15, 2015 § 7 Comments

Requests for name changes are something every family practitioner encounters.

There are two general categories: (1) the change of name only; and (2) correction or change of birth certificate.

If you are seeking to change a person’s name only, without affecting the birth certificate, you proceed under MCA 93-17-1(1). Most often, this type name change is in the context or wake of a divorce action, where the woman wants her surname restored to her former name. That is an ex parte matter, since there is no other interested party. Except, however, in the context of the divorce, in which the estranged spouse may object. I represented a woman in an ID divorce once, and her husband adamantly and quixotically refused to agree to any provision in the PSA allowing her to change her name. I advised her to agree, and threw in a separate name-change action after the divorce was final.

Divorces are not the only reason for a name change. Some people simply don’t like their given name, or want to honor someone. I signed a judgment not long ago for a young man who wanted to change his surname to that of his step-father, who had raised him and was the only father he had ever known. If you are changing the name of a child, both parents must join.

In neither of the above scenarios does the birth certificate change. In order to change the birth certificate, more is required.

If you wish to change any birth fact on the birth certificate, then you proceed under MCA 41-57-23, which requires that you make the State Registrar of Vital Records a party. Typically, lawyers simply mail a copy of the complaint to the State Board of Health with a request for a response, and the agency will file an answer, most often either admitting the relief sought or leaving it up to the court. If you fail to make the agency a party, the judge will send you back to the drawing board.

Keep in mind that changing birth facts requires some proof, more than mere assertions. If you are trying to correct an incorrect name on the birth certificate, produce driver’s license, Social Security card, school records, and affidavits showing the correct information. If you are trying to correct a birth date, baptismal records, affidavits, school records, and the like will support your claim.

Another kind of birth certificate change is set out in MCA 93-17-1(2), which allows the court to “legitimize” a child when the natural father marries the natural mother. Again, you must make the State Registrar of Vital Records a party.

Name changes are fairly simple. Just keep in mind that if it’s for an adult, it’s ex parte. If it’s for a child, the parents must be joined. If it effects a change in a birth certificate, the state must be made a party. It’s embarrassing and costly to drive two counties over only to have a judge say, “Sorry, you have to make the parents or the State Department of Health a party.”

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§ 7 Responses to Naming Names

  • The most interesting name change I have ever witnessed was after the Saints won the Super Bowl in 2010. One day while waiting to be heard in a case, I sat through a name change in which the Chancellor changed a little boy’s middle name to Brees. His first name was already Drew, making his new name Drew Brees _____. His mother had promised him before the season started that “if the Saints win the Super Bowl,” he could change his name to Drew Brees. She made good on her promise!

  • Lou Walker

    I practice in DeSoto County, and one of the issues I have seen is a Mississippi resident trying to change a Tennessee birth certificate. courts in TN will not hear the action because they parents are not TN residents. That leaves them in the position to ask a MS court to order the TN BVS to change a birth certificate. The TN BVS does not require any notice (I have called them and asked where to send notice and they told me not to. I also am licensed in TN. I have not had a problem thus far with TN recognizing the order to change the name from the MS court and changing the name on the birth certificate, but it is with a line through the old name and the corrected name noted above.
    I am concerned about one that I have recently been asked to do. TN law provides that BVS will change the name based on a court order and they recognize the out of state order that changed the name, but the BVS requires that a court order must specifically order them to block and delete if the name should be completely removed. I now have a couple who what that done, and I am concerned that the MS court will refuse to order the TN BVS to take any action. It is one thing to declare a name changed. It is entirely another to order an agency of another state to make specific changes to a birth certificate. I will try to remember to update this when I see how that works out!

    • Lou Walker

      Wow! I need an editor to check my grammar before I hit the enter key! Sorry for the mistakes.

    • I have signed orders for other states — Alabama and Louisiana for sure (maybe more that I do not recall) to change BC’s. In each case the lawyers told me that they had contacted the agency in the other state and were advised to get Mississippi court order. I was dubious at first, but the lawyers tell me that it worked.

  • Ben Conner

    Rule 81(d)(1) says “The following actions and matters shall be triable 30 days after completion of service of process…., to-wit: ….correction of birth certificate; alteration of name….” 81(d)(3) then says, “Complaints and petitions filed in the actions and matters enumerated…shall not be taken as confessed.”

    I’ve had to name-change three elderly ladies. In each case, the Department of Public Safety had refused to renew a drivers license because the name on the DL was not identical to the name on the Social Security Card. State statute requires that their first name from their birth certificate must appear as their first name on their drivers license. Each of these ladies had been called by their middle name all their lives. Each had Social Security records using [middle name][initial][recent married name]. Department of Public Safety now insists that all identification cards reflect the same name. I think it has something to do with the Patriot Act and its progeny. DPS won’t let them adopt a different “first name”. Each lady had used multiple variations and iterations of initials, names, and multiple surnames through the years. The problem presenting to the attorney practitioner is that these ladies could not renew their drivers licenses because their names were different as between social security card and drivers license.

    They do not need to correct a birth certificate because there is no error in the record of their birth. Discrepancies arose much later. They could change their social security card name, but then all of their employment, and credit history, private retirement benefit, tax records, and property ownership records would be inconsistent with their id cards.

    The solution is a name change. Not correction of birth certificate.

    So far, I’ve had good success by reciting all of the different iterations of name used by Complainant in her lifetime. Upon presentation of proof, I ask my chancellor to make a finding that each of these names is one and the same person as the Complainant. So far, a certified copy of this Judgment has satisfied DPS, Social Security, U.S. Customs (Passports), and private investment holders. Complainant picks one of her names and is told to stick to that one.

    Procedurally, there are two obstacles. First, 81d matters cannot be confessed. There must be a record. Second, 81d matters are not triable until 30 days after somebody is served with process. If Complainant names the Bureau of Vital Statistics as a party defendant, the special assistant AG assigned to BVS will answer and refuse to amend, correct, or alter the birth certificate and offer to make a “marginal notation” of the name change on their records. This procedure satisfies Rule 81 and provides a trackable history of identity changes in conformity with DPS, BVS, and the Patriot Act.

GAP Act: Walk-Through of a Conservatorship

November 20, 2019 § Leave a comment

Continuing with our overview of the GAP Act.

At the GAP ACT MATERIALS tab you will find some helpful material presented by Chancellor Charles Smith at the Meridian GAP Act seminar earlier this month, entitled “Conservatorship — Walk Through.”

 

 

The Sale and the Bill of Sale

November 19, 2019 § 1 Comment

Dan McIntosh, IV (Dan) transferred his extensive gun collection to his father, Dan McIntosh, III (Mac), after he faced criminal charges in federal court. Dan gave Mac a bill of sale for the property. Mac, an attorney, represented Dan and eventually succeeded in getting the young man a favorable plea deal, although under its terms he was a convicted felon.

Dan later decided he wanted his guns back. Mac and Dan’s friend explained that he could not have them in his possession under state and federal law.

Unconvinced, Dan firebombed Mac’s home and rammed it with his Lexus; when he was arrested, he had a loaded shotgun in his vehicle. He had told his mother that he was in the middle of his suicide and he “had one thing to do before [his] life [ended.” In jail, Dan hanged himself.

Dan’d mother Beverly opened his estate and sued Mac for return of the gun collection. She claimed, among other things, that there was no consideration for the transfer, and a special chancellor was assigned the case. He found that the bill of sale and transfer were proper. Beverly appealed.

In Quick, Executrix of the Estate of McIntosh  v. McIntosh, decided October 22, 2019, the COA affirmed. You can read the entire opinion with its more complete recitation of facts. I thought you might find the court’s explication of the law of bill of sale and contracts useful. Here is how judge Westbrooks addressed it:

¶12. The chancellor found as a matter of law “that the April 2010, Bill of Sale from Mac to Dan was valid and that Dan became the owner of all of the items included in the Bill of Sale at that time and, further, that at the time of his demise, the assets included in the Bill of Sale were not assets of Mac’s estate.” There need not be any further iteration of his legal finding.

¶13. A “bill of sale” is defined as “an instrument for conveying title to personal property, absolutely or by way of security.” Black’s Law Dictionary (10th ed. 2014). “A transfer may be either an absolute assignment by way of gift or sale, or an assignment by way of mortgage or security only; but in either case when a written document of any sort is used to effect the transfer, the document is called technically a ‘bill of sale.’” Albert Gibson, Arthur Weldon & H. Gibson Rivington, Gibson’s Conveyancing 302 (14th ed. 1933). Mississippi has long recognized that “the acknowledgment of payment contained in the ‘bill of sale’ is merely a receipt which may be contradicted by parol evidence.” Smith v. Stevens, 299 So. 2d 690, 691 (Miss. 1974) (citing Fowlkes v. Lea, 84 Miss. 509, 36 So. 1036 (1904)). A bill of sale is an instrument that is evidence of a contract. Historically the Mississippi Supreme Court has used the two terms interchangeably. See Mitts v. Price, 129 Miss. 554, 163-65 (1922) (illustrating the supreme court employing the terms “bill of sale” and “contract” interchangeably in its analysis to determine the reasonable performance period under the bill of sale at issue and discussing the bill of sale as a written contract for the sale of property); see also Hercules
Powder Co. v. Westmoreland, 249 Miss. 849, 164 So. 2d 471, 474 (1964) (using the phrase “bill of sale or contract” when finding that a valid contract of employment existed between co-defendants).

¶14. In order to form a valid contract, the laws of this State require the following: “(1) two or more contracting parties; (2) consideration; (3) an agreement that is sufficiently definite; (4) parties with the legal capacity to make a contract; (5) mutual assent; and (6) no legal prohibition precluding contract formation.” Gandy v. Estate of Ford, 17 So. 3d 189, 193 (¶7) (Miss. Ct. App. 2009). A valid contract has to be supported by consideration. Id.

Consideration is, of course, one of the six elements required for the existence of a valid contract. The Mississippi Supreme Court has defined consideration for a promise as (a) an act other than a promise, or (b) a forbearance, or (c) the creation, modification or destruction of a legal relation, or (d) a return promise, bargained for and given in exchange for the promise.

Marshall Durbin Food Corp., 909 So. 2d at 1273 (¶14) (citation and internal quotation marks omitted).

Where the instrument in controversy contains a statement or recital of consideration, it creates a rebuttable presumption that consideration actually existed. The general rule is that this presumption is established even by such expressions as “for value,” “for good and sufficient consideration,” “for value received” or, as in the present case, “for valuable consideration.”

Daniel v. Snowdoun Ass’n, 513 So. 2d 946, 950 (Miss. 1987) (citations omitted). “While the presumption does not preclude the defendant from putting on proof designed to show that the consideration was not actually paid, his ‘rebuttal must be made by a clear preponderance of the evidence.’” Marshall Durbin Food Corp., 909 So. 2d at 1274 (¶15) (quoting Daniel, 513 So. 2d at 950).

¶15. In Daniel, a nonprofit corporation (Snowdoun) was established in a codicil of the will of the testatrix, Elizabeth Garth, conveying the title to her childhood home to be opened as a museum. Daniel, 513 So. 2d at 948. Other bequeaths [sic] were made to the Mississippi University for Women and St. Paul’s Episcopal Church. Id. The widower sued, seeking to renounce the will, take his legal share, and have the bequests to MUW and St. Paul declared void. Id. The nonprofit corporation was not named as a party to the will contest, and its participation in settlement negotiations was not clear. Id. Regardless, a settlement was reached, leaving Snowdoun with about $100,000 as a result. Id. Daniel also executed a memorandum of understanding (MOU) in which he agreed to set up an inter vivos trust as a depository for the money. Id. Snowdoun was named the beneficiary of the trust. Id. Daniel failed to set up the trust fund, and Snowdoun sued for specific performance. Id. The MOU became the subject of litigation. Id. The nonprofit sued Daniel for specific performance. Id. In response Daniel claimed the agreement failed for lack of consideration. Id. He claimed that he only offered encouragement and appreciation, which is not consideration. Id at 949. The court was left to weigh whether the MOU was supported by consideration. Id. The case cited bedrock canons for the element of consideration in agreements: “[M]ere sentiments such as affection, love and the like, cannot in themselves furnish adequate consideration for an enforceable contract . . . considerations must come from the parties to the agreement.” Id. at 949. Further explaining that “[c]onsideration means something which is of some value in the eye of the law, moving from the plaintiff; it may be some benefit to the defendant or some detriment to the plaintiff; but in all events it must be moving from the plaintiff.” Id.

¶16. While Daniel tried to claim that Snowdoun had no inducement because their interests were aligned during the settlement that led to the MOU, Snowdoun claimed that it intervened in the negotiations because of Daniel’s encouragement. The Mississippi Supreme Court found that the record could support both and held it “will not overturn a chancellor’s finding of fact unless he is manifestly wrong.” Id. at 951.

The court went on to find various ways that the chancellor’s findings of consideration were supported by evidence, and went on to conclude that Beverly had failed to rebut the presumption of valid consideration by clear and convincing evidence.

Peril of Proper Process: Certified Mail Fails Again

November 18, 2019 § Leave a comment

Donald Pritchard filed a Complaint for Divorce against his wife, Lisa, on March 17, 2017. Lisa by then had moved to Alabama.

Donald mailed a copy of the complaint and summons via certified mail to two addresses that Lisa was known to use in Alabama: her residence; and her mother’s. Neither envelope was marked, “restricted delivery.” The copy mailed to Lisa’s address was neither delivered nor refused; the postal service returned to sender stamped “unclaimed.”

As for the copy delivered to Lisa’s mother’s address, Lisa’s sister, Pamela Berthiaume, signed the receipt indicating she was Lisa’s agent (later denied by Lisa). Donald filed the receipt as proof of service. The clerk noted on the docket that Lisa’s answer was due on May 14, 2017. Lisa’s sister met with Lisa, gave her the copy of pleading and summons; and read it with her to help her understand.

On the day appointed for hearing, Lisa did not appear, and the chancellor granted a divorce on the ground of desertion, entering its final decree on June 5, 2017.

Lisa filed a motion to set aside the divorce judgment on June 13, 2017, claiming that the court lacked personal jurisdiction because she was never properly served with process. A hearing on the motion was held in April, 2018, and the court overruled it finding that: Lisa was properly served by certified mail; she had actual notice of the complaint, but she failed to answer or appear; and the court did consequently have jurisdiction.

On appeal, the COA reversed, vacated, and remanded. The case, Pritchard v. Pritchard, was handed down August 27, 2019. Predictably, the opinion penned by Judge Corey Wilson points out that the technical requirements of MRCP 4 were not met, and the fact that Lisa had actual knowledge of the suit was not enough to satisfy R4. There’s nothing novel here; you can read it for yourself.

In dissent, Judge Jack Wilson makes the intriguing argument that Lisa indeed was served with process — personally by her sister Pamela Berthiaume. Here’s how he explains it:

¶36. I agree with the majority that Donald’s attempts to serve Lisa by certified mail were ineffective because the mailing was not marked “restricted delivery” and was returned as “unclaimed.” See M.R.C.P. 4(c)(5); Long v. Vitkauskas, 228 So. 3d 302, 304 (¶6) (Miss. 2017) (“Mississippi Rule of Civil Procedure 4(c)(5) requires a mailing of process to an out-of-state, natural defendant be marked ‘restricted delivery.’”); Bloodgood v. Leatherwood, 25 So. 3d 1047, 1051 (¶16) (Miss. 2010) (“A returned envelope marked ‘unclaimed’ is insufficient to satisfy service requirements under Rule 4(c)(5).”).

¶37. However, the chancery court did not err by denying Lisa’s motion to set aside the divorce decree because there was sufficient evidence for the court to find that Lisa was personally served with the summons and complaint. A “sheriff or process server” may accomplish personal service on a competent adult “by delivering a copy of the summons and of the complaint to [her] personally.” M.R.C.P. 4(d)(1)(A). A “process server” may be “any person who is not a party and is not less than 18 years of age.” M.R.C.P. 4(c)(1).

¶38. Here, Donald mailed a copy of the summons and complaint by certified mail to Lisa at her mother’s address. Lisa did not accept the mailing. However, Lisa’s sister [Pamela] (Berthiaume) signed for it and then personally delivered the complaint to Lisa. Berthiaume testified that she even read the complaint to Lisa. [Fn 6] Thus, Berthiaume “personally” served the complaint consistent with the plain language and requirements of Rule 4(c)(1).

[Fn 6] At the hearing on Lisa’s motion to set aside the divorce decree, Berthiaume testified, in response to a direct question from the chancellor, that the document that she delivered to Lisa was Donald’s complaint for a divorce. In his bench ruling at the conclusion of the hearing, the chancellor found that Berthiaume had delivered the summons and complaint to Lisa. See Smith v. Church Mut. Ins., 254 So. 3d 57, 62 (¶11) (“As to issues of service of process, this Court reviews the trial court’s findings for an abuse of discretion.”). Berthiaume later signed an affidavit in which she claimed that she was “confus[ed]” when she testified in court. In her affidavit, Berthiaume asserted that the document that she delivered and read to Lisa was actually a proposal for an irreconcilable differences divorce, not a complaint. Lisa submitted Berthiaume’s affidavit in support of her motion to reconsider the denial of her motion to set aside the divorce decree. However, Lisa never produced the alleged proposal for an irreconcilable differences divorce. The chancellor denied Lisa’s motion to reconsider.

¶39. The majority opinion suggests that personal service was not effective because Donald never asked Berthiaume “to act as a process server consistent with Rule 4(c)(1)” or because “there is no proof of service to substantiate a date on which Lisa was personally served.” Ante at ¶27. The majority then states personal service was ineffective because there was not “strict compliance” with “the plain requirements of Rule 4.” Ante at ¶28.7 With respect, I disagree.

¶40. The plain language of Rule 4(c)(1) requires nothing more than personal delivery of the summons and complaint by a nonparty adult. As the chancellor found, that happened in this case. Rule 4(c)(1) does not require that the “process server” agree or even intend to act as such. In addition, Rule 4(f) specifically provides that “[f]ailure to make proof of service does not affect the validity of the service.” M.R.C.P. 4(f) (emphasis added). Because Donald did not file proof of personal service, he was not entitled to an evidentiary presumption of valid service. See Collins v. Westbrook, 184 So. 3d 922, 929 (¶18) (Miss. 2016) (explaining that a properly executed proof of service raises a rebuttable presumption that service occurred). However, based on Berthiaume’s own testimony, the chancellor found that personal service had in fact occurred. Thus, the lack of a properly executed and filed proof of personal service is unimportant.

¶41. Our courts have not addressed this issue previously, but the Washington Supreme Court held that similar “secondhand” service constituted valid personal service under that state’s substantively identical rules of procedure. See Scanlan v. Townsend, 336 P.3d 1155, 1160-62 (¶¶22-34) (Wash. 2014). In that case, “a process server delivered a copy of the summons and complaint to [the defendant’s father] at his home. But [the defendant (Townsend)] did not live at her father’s home. Townsend’s father later handed the summons and complaint directly to Townsend . . . .” Id. at 1156 (¶1). Townsend denied that such “secondhand” service was effective. However, the Washington Supreme Court rejected her argument, reasoning that “[n]othing in the plain language of [Washington Civil Rule] 4(c) precludes Townsend’s father, who is over 18 years old, is competent to be a witness, and is not a party, from having authority to serve Townsend.” Id. at 1161 (¶26).

¶42. In Scanlan, the Washington Supreme Court followed a prior Washington Court of Appeals decision in a case that involved personal service by the defendant’s neighbor. See id. at 1161-62 (¶¶31-34) (discussing Brown-Edwards v. Powell, 182 P.3d 441 (Wash. Ct. App. 2008)). In Brown-Edwards, a process server mistakenly delivered the summons and complaint to the defendant’s neighbor, but the neighbor then personally delivered the documents to the defendant. Scanlan, 336 P.3d at 1161 (¶31). The neighbor’s delivery was deemed valid personal service because the neighbor “certainly [met] the criteria for a process server.” Id. at (¶32) (quoting Brown-Edwards, 182 P.3d at 442 (¶6)). As the court explained, Nothing in the rule requires that a process server have a contractual obligation to serve process. Nor is there any requirement of proof of intent to serve process. And we find nothing that would prohibit a person who comes into possession of a summons and complaint by defective service from being a competent process server. The rule prohibits only a party to the action from serving process. Id. (quoting Brown-Edwards, 182 P.3d at 442 (¶6)). In short, a person can effect valid personal service even if she does so unwittingly.

¶43. The reasoning of the Washington courts is persuasive. Berthiaume came into possession of the summons and complaint as a result of a defective attempt at service by certified mail, but she then personally served Lisa in a manner consistent with the plain language and requirements of Rule 4(c)(1). We are bound to apply the “plain language” of the rule rather than “our own notions” of how the rule perhaps should read. Poindexter v. S. United Fire Ins. Co., 838 So. 2d 964, 971 (¶30) (Miss. 2003) (plurality op.) (applying Mississippi Rule of Civil Procedure 15(a)); accord id. at 972 (¶35) (Waller, J., concurring). On the facts of this case, valid personal service occurred under Rule 4(c).

¶44. In summary, there was sufficient evidence for the chancellor to find that Berthiaume personally delivered the summons and complaint to Lisa, and such personal service satisfies the plain language of Rule 4(c)(1). [Fn 8] I would affirm the decision of the chancery court
denying Lisa’s motion to set aside the divorce decree. Therefore, I respectfully dissent.

[Fn 8] Lisa did not receive notice of the hearing on Donald’s complaint. However, both this Court and the Supreme Court have held that there is no obligation to give notice of such a hearing to a party who fails to enter an appearance or answer a complaint for divorce. Lindsey v. Lindsey, 818 So. 2d 1191, 1194 (¶11) (Miss. 2002); Stinson v. Stinson, 736 So. 2d 1259, 1261-62 (¶¶6-10) (Miss. Ct. App. 1999); Carlisle v. Carlisle, 11 So. 3d 142, 145 (¶10) (Miss. Ct. App. 2009).

Whichever opinion you find persuasive, you must admit that Judge Wilson has a good point (think about that for a minute).

It would be interesting to see what the MSSC would do with this issue.

Street Art

November 15, 2019 § 2 Comments

Street Art. The creative urge finds many avenues of expression. The range of artistic creations one can see on a walk is impressive, from posters to frescoes to carnival masks to mosaics to store signs to doo-dads. These few are from places as diverse as Russia, Meridian, Charleston MS, Amsterdam, and Las Terrazas Cuba. Many are from Freak Alley in Boise Idaho. You might be able to pinpoint which are from where.

(Click on any picture to see a larger image)

GAP Act: Guardianship of an Adult, Part II

November 13, 2019 § Leave a comment

Continuing with an overview of the GAP Act.

Section numbers correspond to SB 2828.

Duties of guardian (312)

Guardian is a fiduciary.

Except as limited by the court, the guardian makes decisions about the support, care, education, health, and welfare of the ward to the extent made necessary by the ward’s limitations.

Guardian promotes self-determination by the ward, encourages participation in decision-making, acts on the ward’s behalf, develops the ward’s capacity to act on the ward’s own behalf.

In carrying out the duties, the guardian may: (1) become personally acquainted with the ward’s limitations and physical and mental health through regular visits and other means; (2) identify the ward’s preferences; (3) identify supportive services and relationships.

Guardian exercises reasonable diligence and prudence in decisions: (1) takes reasonable care of the ward’s personal effects, pets, and service animals; (2) brings conservatorship proceeding if necessary; (3) expends ward’s funds for the ward’s needs; (4) conserves surplus funds for future needs and pays surplus to any conservator; and (5) monitors the services being provided to the ward.

In making a decision for the ward, the guardian makes the decision that the guardian reasonably believes the ward would have made unless it would harm the ward or the ward’s financial interest. The guardian should look to previous statements of preference.

If the ward’s preferences can not be determined, then the guardian makes decisions in the best interest of the ward, considering: (1) information from professionals and other persons in the best interest of the ward; (2) information the G believes the ward would have considered were the ward capable; (3) “Other factors a reasonable person in the circumstances of the adult would consider, including consequences for others.”

The guardian must immediately notify the court if the condition of the adult has changed so that the adult is capable of exercising rights previously taken away.

Powers of the guardian (313):

Except as limited by the court, a guardian may: (1) apply for and receive funds for support of the ward; (2) unless inconsistent with the court order, establish a dwelling place; (3) consent to health or other care, treatment or service; (4) if no conservator has been appointed, initiate proceedings to have one appointed, or initiate proceedings to compel a person to support the ward or pay funds for the ward’s benefit; (5) reasonably delegate decision-making to the adult if reasonable; (6) receive the adult’s health-care information.

In exercising power to select a dwelling, the guardian must: (1) select a dwelling the guardian believes the ward would select if able, and in the adult’s best interest; (2) give priority to a setting that will allow the ward to interact with persons important to the ward and in the least restrictive manner feasible; (3) place the ward in a nursing home, mental health facility, or other restrictive setting only if:

(a) the placement is included in the guardian’s plan under Section 315;

(b) the court authorizes the placement;

(c) the guardian gives 14-days’ advance notice to all entitled to notice per Section 309(4), or court order, and no objection is filed;

(d) move the ward out of state only if consistent with the guardian’s plan and authorized by court order;

(e) move the ward resulting in sale of or surrender of lease of primary residence only if:

(i) such action is specifically included in the guardian’s Section 315 plan;

(ii) the court authorizes such action by specific order;

(iii) notice was given 14 days in advance to the adult and all Section 309(4) persons and no objection is filed; and

(iv) notify the court if the ward’s dwelling has been so damaged by fire, flood, etc. so that the ward has to relocate temporarily or permanently.

In exercising health care decisions, the guardian shall: (1) involve the ward in decision-making to extent feasible; (2) defer to decisions by an agent under a health-care directive, and cooperate with the agent; (3) take into account the risks and benefits of treatment options, and the current and previous wishes of the ward, if known.

Special limitations on guardian’s power (314):

Unless authorized by the court, the guardian may not revoke or amend an advanced health-care directive or POA for finances executed by the adult.

Health-care decisions of an agent under a health-care directive take precedence over those of the guardian.
Financial decisions of an agent under a financial POA take precedence over those of the G.

The guardian must cooperate with the duly-appointed agents.

Guardian may not commit the adult to a mental-health facility except in an involuntary civil commitment procedure.

Guardian may not restrict the ward’s communications, visits, or interactions with others unless: (1) specifically authorized by court order; (2) a protective order is in place; or (3) the guardian has good cause to believe restriction is necessary to protect the ward, and can impose restrictions:

(a) for not to exceed 7 business days if the person restricted had prior family or social relationship with the ward; or

(b) for not more than 60 days for all others.

Guardian’s Plan (315):

If required by the court, the guardian shall file a plan for care of the adult not later than 90 days after the appointment or order to file a plan.

If there is a change in circumstances, or if the guardian wishes to deviate from the original plan, the guardian must file a revised plan no later than 90 days after the change or decision to deviate.

Plan must be based on needs of the adult taking into account the adult’s best interest, preferences, values, and prior directives, and must include: (1) the adult’s proposed living arrangements and services; (2) expected social and educational activities; (3) plans for regular visitation and identity of those to visit; (4) nature and frequency of visits and communication; (5) goals for the adult, including restoration of decision-making rights, and how the G intends to accomplish; (6) whether the ward has an existing plan, and if so whether this plan is consistent; and (7) itemization of charges the G anticipates for services to be rendered.

Guardian must give notice and a copy of the plan to the ward, the ward’s spouse, parents, children, and any other person as directed by the court.

Well-being report and monitoring (316):

If any significant change in circumstances or the guardian wishes to deviate from the plan, the guardian must file a report stating: (1) the mental, physical, and social condition of the adult; (2) the living arrangements during the reporting period; (3) summary of services provided and the guardian’s opinion of the adequacy of the ward’s care; (4) summary of the guardian’s visits with the ward including dates; (5) action taken on behalf of the ward; (6) the extent to which the adult has participated in decision-making; (7) if the ward is living in a mental health or health-care facility, the guardian’s opinion as to whether the care is consistent with the adult’s best interest and preferences; (8) any business relationship the guardian has with any person paid by the guardian to provide services; (9) copy of the ’s most recent plan, stating whether the guardian has deviated, and if so how and why; (10) plans for future care and support; (11) recommendation as to whether there is a need for continued guardianship, or whether change in the scope of the guardianship is needed; (12) whether any co-guardian or successor guardian is alive and able to serve; (13) photos of the ward and living conditions, if required by the court; and (14) itemization of amounts requested for reimbursement or legal fees.

The court may appoint a GAL to review a report, or a plan, or to interview the guardian or ward, or to investigate any other matter involving the guardianship.

Notice of filing, with a copy, must be sent not later than 14 days after filing to the adult ward, the spouse, parents, children, and any other person the court determines.

The court is required to establish procedures for monitoring reports and to review each report at least annually to determine whether: (1) the report includes sufficient information to determine whether the guardian has complied with the guardian’s duties; (2) the guardianship should continue; (3) the guardian’s requested fees, if any, should be approved.

If the court determines that there is reason to believe that the guardian has not complied with the guardian’s duties, or that the guardianship should be modified or terminated, the court: (1) shall notify the ward, spouse, parents, children and other persons entitled to notice under Section 309(4) or by court order; (2) may appoint a GAL to investigate; (3) may hold a hearing to consider removal of the guardian, or termination of the guardianship, or change in powers of guardian.

The guardian may petition the court for approval of a report. If the court approves, there is a rebuttable presumption that the report is accurate as to any matter adequately disclosed in it.

Removal of guardian and appointment of successor (317):

“Upon petition and for good cause shown” the court may hold a hearing to consider whether to remove a guardian for failure to perform duties, and the court may appoint a successor.

Notice of a petition must be given to the ward, the guardian, and any other person the court determines.

A ward seeking to remove a guardian has the right to choose an attorney for representation. “The court shall award reasonable attorney’s fees to the attorney as provided in Section 118.”

Not later than 10 days after appointment of a successor guardian, “the court shall give notice” of the appointment to the adult ward, spouse, parents, children, and any other person ordered by the court.

Termination or modification of guardianship (318):

Upon petition and for good cause shown, the court may hold a hearing to consider whether: (1) termination should be ordered because a basis for appointment under Section 301 does not exist; or (2) termination would be in the best interest of the ward; or (3) for other good cause; or (4) modification should be ordered because the extent of protection or assistance ordered is not appropriate, or for other good cause.
Notice of the petition must be given to the ward, the guardian, and any other person the court determines.

“On presentation of prima facie evidence” the court shall order termination unless proven that a basis for appointment exists under Section 301.

The court modifies the powers granted if powers are excessive or inadequate due to changes in the abilities or limitations of the adult, the adult’s supports, or other circumstances.

Unless the court orders otherwise for good cause, the court shall follow the same procedures to safeguard the rights of the adult that apply to a petition for guardianship.

A ward who seeks to terminate may choose an attorney, and the court may award attorney’s fees as provided in Section 118.

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