May 12, 2020 § Leave a comment
After the chancellor dismissed her contempt case against her ex-husband, Damon Spears, for failure to prosecute, Rita Carter appealed.
In Carter v. Spears, handed down April 28, 2020, the COA affirmed. Judge Cory Wilson wrote for the unanimous court:
¶11. “For failure of the plaintiff to prosecute or to comply with [the Rules of Civil Procedure] or any order of court, a defendant may move for dismissal of an action or of any claim . . . .” Miss. R. Civ. P. 41(b). We consider “[w]hat constitutes a failure to prosecute . . . on a case-by-case basis.” Cox v. Cox, 976 So. 2d 869, 874 (¶14) (Miss. 2008). “The supreme court has provided considerations to be weighed in determining whether to affirm a Rule 41(b) dismissal with prejudice: ‘(1) whether there was a clear record of delay or contumacious conduct by the plaintiff; (2) whether lesser sanctions may have better served the interests of justice; and (3) the existence of other aggravating factors.’” Sullivan v. Maddox, 283 So. 3d 222, 234-35 (¶54) (Miss. Ct. App. 2019) (quoting Cox, 976 So. 2d at 874 (¶14)). “‘Delay alone may suffice’ for dismissal under Rule 41(b).” Holder, 54 So. 3d at 198 (¶20) (quoting Cox, 976 So. 2d at 875 (¶18)).
¶12. “We acknowledge that ‘[t]here is no set time limit on the prosecution of an action once it has been filed . . . .’” Sullivan, 283 So. 3d at 235 (¶55) (quoting Holder, 54 So. 3d at 197 (¶17)). “We also are mindful of the fact that dismissal with prejudice is an extreme and harsh sanction that deprives a litigant of the opportunity to pursue [her] claim, and any dismissals with prejudice are reserved for the most egregious cases.” Holder, 54 So. 3d at 197 (¶17) (internal quotation marks omitted) (quoting Hoffman v. Paracelsus Health Care Corp., 752 So. 2d 1030, 1034 (¶11) (Miss. 1999)). “However, if the record shows that a plaintiff has been guilty of dilatory or contumacious conduct, or has repeatedly disregarded the procedural directives of the court, such a dismissal is likely to be upheld.” Hensarling v. Holly, 972 So. 2d 716, 720 (¶8) (Miss. Ct. App. 2007). “[T]he cases in which [the supreme court] has affirmed the dismissal of a complaint for failure to prosecute often feature a substantial period of delay that clearly evinces the plaintiff’s prolonged failure to pursue [her] claims.” SW 98/99 LLC v. Pike County, 242 So. 3d 847, 854 (¶23) (Miss. 2018) (citing Manning v. King’s Daughters Med. Ctr., 138 So. 3d 109, 116 (¶21) (Miss. 2014) (affirming dismissal where plaintiff filed a complaint but then took no further action for two years, did not respond to discovery requests, and waited a year before responding to defendant’s motion to dismiss)).
¶13. Here, even discounting the lengthy procedural delays pre-dating her 2014 petition, [Fn 2] the record since Carter filed her most recent petition shows substantial periods of delay coupled with a disregard of deadlines set by both court orders and procedural rules. After Carter failed to prosecute her 2014 contempt petition for over a year, the chancery clerk filed a notice of dismissal in 2015. In response, Carter filed a perfunctory motion to set a trial date but then did not further pursue her claims for over another year. During that interval, she ignored deadlines imposed by both the discovery rules and the chancery court itself. As a result, the chancery clerk filed another notice of dismissal and motion to dismiss for want of prosecution in March 2017. A similar pattern of superficial activity by Carter ensued, until Spears filed his own motion to dismiss for failure to prosecute—the third such motion as to Carter’s 2014 petition—in May 2018.
[Fn 2] Measured from when Carter filed her March 7, 2011 petition, there were three lengthy periods of inactivity, the first lasting two years and three months, the second spanning one year and one month, and the third lasting one year and three months. In its order, the chancery court appeared to consider this aggregate four-year, seven-month delay in granting Spears’s motion to dismiss. But Carter’s 2011 petition was dismissed in July 2013, on the chancery clerk’s first notice of dismissal, such that the relevant yardstick for measuring delay in the instant appeal begins with Carter’s 2014 petition. Regardless, the procedural history before and since Carter’s 2014 petition substantiates a “clear record of delay or contumacious conduct by the plaintiff.” Sullivan, 283 So. 3d at 235 (¶54).
¶14. Carter took two years and five months to respond to discovery requests Spears propounded on October 9, 2015, and then only provided unverified and incomplete responses. Carter’s delay occurred in the face of the first of two motions to compel filed by Spears, court orders directing Carter to provide discovery responses, and the third notice of dismissal for want of prosecution from the chancery clerk. Carter’s “substantial . . . delay . . . clearly evince[d] the plaintiff’s prolonged failure to pursue [her] claims.” SW 98/99, 242 So. 3d at 854 (¶23). Our supreme court has made clear that “repeated failures to comply with discovery warrant dismissal with prejudice.” Holder, 54 So. 3d at 198 (¶21); see also Hillman v. Weatherly, 14 So. 3d 721, 727 (¶20) (Miss. 2009) (finding clear record of delay where plaintiff did not respond to discovery requests until both defendant and circuit clerk had filed motions to dismiss for want of prosecution). Based on the foregoing, we find no error in the chancery court’s finding that there was a “clear record of delay or contumacious conduct” on Carter’s part.
¶15. We likewise find no abuse of discretion in the chancery court’s determination that lesser sanctions would not better serve the interests of justice and that Carter’s pattern of dilatory conduct caused significant prejudice to Spears. “Lesser sanctions may include ‘fines, costs, or damages against plaintiff or [her] counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.’” Holder, 54 So. 3d at 200 (¶32) (quoting Days Inn, 720 So. 2d at 181-82 (¶17)) (internal quotation and citations omitted); but see Cox, 976 So. 2d at 876 (¶26) (finding “that lesser sanctions would not suffice” when “lesser sanctions could not cure the prejudice to [defendant] caused by the delay”). The presence of aggravating factors, while not required to justify dismissal under Rule 41(b), may strengthen the trial court’s decision to dismiss an action. Cox, 976 So. 2d at 876 (¶27). Such factors include “the extent to which the plaintiff, as distinguished from [her] counsel, was personally responsible for the delay, the degree of actual prejudice to the defendant, and whether the delay was the result of intentional conduct.” Days Inn, 720 So. 2d at 181 (¶13) (quoting Rogers v. Kroger Co., 669 F. 2d 317, 320 (5th Cir. 1982)).
¶16. Here, the chancery court weighed “any aggravating factors or prejudice to Spears,” finding that
[t]he passage of time for many of these expenses claimed by Carter is at least six (6) years, and in some instances there are expenses that occurred over thirteen (13) years ago. Whether these expenses were timely provided by Carter to Spears is an issue in this case, and there is an issue of whether either Spears or Carter can provide recollection of when these bills were actually submitted . . . . This prejudice caused by fading memories due to the passage of time can be presumed to support the dismissal of this action under Rule 41(b).
(Citing Holder, 54 So. 3d at 200 (¶30)). The chancery court also found that the total amount of time that passed when Carter took no activity to advance her claims is four (4) years and seven (7) months. Additionally, Carter’s responses to Spears’[s] discovery were not served until two (2) years and five (5) months after [the requests] were served. Carter filed no response to Spears’[s] motion [to dismiss], and provided no justification for these delays. The chancery court concluded that “[u]nder these circumstances . . . there is no lesser sanction that would serve the interests of justice other than dismissing Carter’s [p]etition.” As we concluded in Holder, “[t]oday’s case is not an isolated incident of one missed deadline or a short, delayed response.” 54 So. 3d at 200 (¶33). Accordingly, we find no abuse of
discretion in the chancery court’s findings or its ultimate dismissal of Carter’s claims under Rule 41(b).
It’s a never-ending source of bafflement to me how some cases drag out almost to infinity, seeming to proceed, if at all, at the pace of a sea slug crawling across the bottom of the ocean crossing from the beaches of California to the shores of Bali. Some, I am sure, are due to lack of cooperation by one or more parties, but some are attributable to the inattention or lack of interest by the attorney(s). One source of lost interest is when you charge a flat fee and get paid up front. Once the money is safely in your firm account, motivation wanes.
May 11, 2020 § 3 Comments
As this blog wanes toward its conclusion, here are a few points …
- I will see that the blog continues to be accessible so that you can access its content all the way back to 2010, when it started.
- The only change will be that there will be no new posts after June 15, 2020.
- That means that if you copy some authority to use in a pleading, motion, or brief, be doubly sure that you research to determine whether it is still good authority or whether changes in the law have affected it.
- In the meantime, I’ll continue posting as I have.
May 8, 2020 § 24 Comments
No, not that end; this end.
June 14, 2020, will be the 10th anniversary of this blog. Ten years is a long time for anything, much less a blog that requires weekly attention.
Every June anniversary since I started this I have said that I would continue as long as I enjoyed doing it. Around the beginning of January I began to feel that the burden had begun to outweigh the enjoyment. I found that I was resisting making time to compose these posts, so that I didn’t have a cushion of at least a couple of weeks scheduled ahead, and that created unenjoyable pressure. It had begun feeling more like a chore than an enjoyable project.
I began thinking the unthinkable: how much longer can I keep this up? I wondered whether my feelings might change. After all, we all go through slumps.
But here we are in May and my feelings haven’t changed. The Covid-19 quarantine has brought home to me that I can take a more relaxed approach and still perform at a high level. It taught me, too, that I can slough off some things that I have been toting around without creating an existential threat. One of those things is this blog.
So, my friends, my last post here will be June 15, 2020, when I will bid you a bittersweet farewell. Fear not, the site will remain up; just no more new posts after the closing date.
More on the denouement Monday.
May 6, 2020 § Leave a comment
It’s fundamental that, in order for an order or judgment to be enforceable, it must be complete on its face, and the obligation imposed must be specified. It can not require reference to extraneous information to determine the obligation. For example, an order that the obligor pay 14% of his adjusted gross income is unenforceable since it requires that we determine from extraneous sources what 14% of his income might have been.
The principle was brought to the fore in the COA’s decision reversing a chancellor’s adjudication of contempt in Lindsay v. Lindsay and Pickering, handed down April 7, 2020. Judge Lawrence wrote for the majority:
¶23. “Civil contempt orders enforce a private party’s rights or compel compliance with a court’s order.” Hanshaw v. Hanshaw, 55 So. 3d 143, 147 (¶13) (Miss. 2011). “Failure to comply with a court order is prima facie evidence of contempt.” Evans v. Evans, 75 So. 3d 1083, 1087 (¶14) (Miss. Ct. App. 2011). “Before a party may be held in contempt for failure to comply with a judgment, ‘the judgment must be complete within itself[,] leaving open no matter or description or designation out of which contention may arise as to meaning.’” Davis v. Davis, 829 So. 2d 712, 714 (¶9) (Miss. Ct. App. 2002) (quoting Wing v. Wing, 549 So. 2d 944, 947 (Miss. 1989)). “A contempt citation is proper only when the contemner has wilfully and deliberately ignored the order of the court.” Lewis v. Pagel, 172 So. 3d 162, 178 (¶39) (Miss. 2015) (quoting Gaiennie v. McMillin, 138 So. 3d 131, 136 (¶13) (Miss. 2014)). Further, “[t]his Court will not reverse a contempt citation where the chancellor’s findings are supported by substantial credible evidence.” Witters v. Witters, 864 So. 2d 999, 1004 (¶18) (Miss. Ct. App. 2004) (citing Varner v. Varner, 666 So. 2d 493, 496 (Miss. 1995)).
¶24. “A defendant may avoid a judgment of contempt by establishing that he is without the present ability to discharge his obligations. However, if the contemnor raises inability to pay as a defense, the burden is on him to show this with particularity, not just in general terms.” Varner, 666 So. 2d at 496 (citation omitted).
¶25. Here, the trial court held Bruce in contempt of the October 13, 2016 written temporary order entered nunc pro tunc to June 13, 2014. At the June 13, 2014 hearing, the court examined Bruce’s Rule 8.05 financial statement and heard testimony from both Bruce and Paula. At the close of the hearing, Judge Steckler indicated his ruling was not complete, stating, “But I want to meet again with both attorneys early next week and go over it and then we’ll finish this order.” He continued “[B]etween now . . . and the time that I enter another order, he is to continue to pay everything that he’s paying now.” (Emphasis added). His bench ruling made no mention of the exact amount of child support, the exact amount of spousal support, home mortgage notes, house maintenance for the pool or yard, or any other specific amount for a specific obligation that Bruce was to pay.
¶26. What Bruce was actually paying at the time of June 13, 2014 hearing is unclear from the record. His Rule 8.05 financial statement from that hearing shows he was paying over $14,000 per month in expenses despite only having $10,260.76 in net income. Further, his Rule 8.05 financial statement does not mention any amount of child support or spousal support, both of which he was later held in contempt for not paying. The vague nature of the
temporary order continued with the new chancery judge’s equally vague ruling—the October 3, 2016 written order—that Bruce “continue to pay an[y] and all debts, obligations and expenses he was paying prior to June 13, 2014.” The specific amounts for what specific obligations that Bruce was required to pay and for which he was held in contempt for not paying were not “complete within the judgment.” In other words, Bruce was held in contempt and incarcerated for not paying obligations that were never specifically set forth within the four corners of the oral ruling on June 13, 2014, or the written temporary order entered by a different judge on October 3, 2016. The written order simply used similar language given by Judge Steckler from the June 13, 2014 hearing. If we looked only to the temporary orders, it would be impossible to know what exactly Bruce had been ordered to pay and in what amounts. The orders are vague and confusing. At the second contempt proceeding on October 19, 2017, before he was ordered to be incarcerated, Bruce said as much when he argued pro se to the court the following:
My point, I guess, is that it’s certainly not willful. There’s a lack of money. Additionally, I think there was definitely confusion over this to this day, but there certainly was confusion through the different meetings, conferences . . . and hearings and no written order by Judge Steckler.
¶27. Simply put, the language in the oral order from the bench and the written order entered over two years later never mention any specific type of obligation or in what amount that obligation is to be paid. In fact, the words child support, spousal support, home mortgage, and lawn or pool maintenance, or any specific monetary amounts for any of those obligations, are never mentioned in either orders. At the June 13, 2014 hearing, the court simply said to “pay everything that he’s paying now[,]” and the October 3, 2017 written order simply stated, “[P]ay any and . . . all debts, obligations, and expenses he was paying prior to June 13, 2014.” This Court has made clear that the “judgment must be complete within itself[,] . . . leaving open no matter or description or designation out of which contention may arise as to meaning.” Davis, 829 So. 2d at 714 (¶9) (quoting Wing, 549 So. 2d at 947). The meaning of the oral order from the bench on June 13, 2014, and the written order trying to reduce to writing that oral order was not clear and certainly not “complete” within itself. Orders from courts, whether oral or written, should not be so vague as to prevent a reasonable person from understanding its clear legal effect or the potential for contempt in failing to abide by its terms. Those terms should be clearly defined within the four corners of the order in an effort to cause “contention [that] may arise as to meaning.” Id. The temporary orders in this case were overly vague, ambiguous, and unclear as to exactly what was required to be paid. Therefore, the order of contempt against Bruce in the amount of $105,470.67 is hereby reversed.
Lawyers have presented PSA’s and agreed orders with flaws similar to that spelled out above, and I have sent them back to the drawing board, although I do confess to signing off on a few when the lawyers whined enough to wear down my resistance. I did point out, however, that if it came back before me for enforcement, the obligation would clearly be unenforceable for the same reasons set out in Lindsay.
May 5, 2020 § 2 Comments
What happens when one fails to object to clearly objectionable evidence? Should the chancellor even consider that evidence? Or is it to be considered along with all other competent evidence?
Those were questions that arose out of a trial in which heirs of Mary Cook sought to set aside deeds and financial transactions in favor of John Ward based on Ms. Cook’s incompetence. During the trial testimony was elicited by Ward’s own attorney, who made no objection to the hearsay responses. After the chancellor ruled against Ward, he appealed, and one ground was admission of the hearsay.
The COA affirmed in Ward v. Est. of Cook, et al., decided April 21, 2020. Judge Jack Wilson wrote for the unanimous court:
¶22. Ward next argues that the chancellor erred by considering hearsay testimony regarding what a bank teller told Lynn Cook III. However, Ward failed to object to the testimony at trial. Indeed, although Ward fails to provide a relevant record citation, it is appears that he is complaining about testimony that his own attorney elicited. A party cannot complain about testimony that his own attorney elicited. Shaheed v. State, 205 So. 3d 1105, 1111-1112 (¶20) (Miss. Ct. App. 2016). In addition, “[w]hen . . . hearsay goes into evidence without objection, the trial court has no opportunity to evaluate the proffered testimony under [Mississippi Rule of Evidence] 803(24), or any other exception. Thus, the failure to object to hearsay operates as a waiver of the issue on appeal.” Swinney v. State, 241 So. 3d 599, 610 (¶40) (Miss. 2018) (quoting Rubenstein v. State, 941 So. 2d 735, 764 (¶113) (Miss. 2006)). Finally, hearsay evidence that is admitted without objection becomes competent evidence for the trier of fact to consider. Shaheed, 205 So. 3d at 1110 (¶16). Therefore, this issue is entirely without merit.
Notice that the case law says that the hearsay becomes competent evidence for the court to consider, NOT that the chancellor must give it the same weight as other evidence. The chancellor could still find it to have little probative value, or find it not to be credible because of its hearsay nature. The chancellor is the finder of the weight and credibility to be assigned to evidence. In one case I had involving a will, an attorney sat mute through the examination of a witness by his opponent, not asserting a single objection, although nearly every question elicited hearsay testimony. I found that witness’s testimony not to be credible and discounted almost all of it.
Always be mindful in the course of a trial that you are not there solely to obtain a favorable ruling. You are also there to make a record that will win the case on appeal. You can’t do the latter if you fail to make timely objections. Oh, and you have to make sure that everything you need to prevail is in the record, as I pointed out in this old post.
May 4, 2020 § Leave a comment
It’s nice and helpful when an appellate court decision gives us a concise, authoritative statement of the law.
That’s what the COA did in the case of Krohn v. Krohn, decided April 21, 2020, on the issue of attorney’s fees, particularly in contempt cases. Here is what Judge McDonald wrote for the majority:
¶20. In assessing an award of attorney’s fees, the chancery court first determines the type of action brought and then uses the appropriate method for a calculation of any attorney’s fees to award. Regarding contempt actions, “[w]hen a party is held in contempt for violating a valid judgment of the court, attorney’s fees should be awarded to the party that has been forced to seek the court’s enforcement of its own judgment.” Garner v. Garner, 283 So. 3d
120, 142 (¶98) (Miss. 2019). “Fees awarded on this basis, though, should not exceed the [attorney’s time and] expenses incurred as a result of the contemptuous conduct.” Heisinger v. Riley, 243 So. 3d 248, 259 (¶45) (Miss. Ct. App. 2018). The court “shall make the award [for contempt actions] based on the information already before it and the court’s own opinion based on experience and observation[.]” Taylor v. Timmons (In re C.T.), 228 So. 3d 311, 319 (¶21) (Miss. Ct. App. 2017) (quoting Miss. Code Ann. § 9-1-41 (Rev. 2014)). A successful party in a contempt action need not show that he or she was unable to pay their attorney. Wilkinson v. Wilkinson, 281 So. 3d 153, 167 (¶52) (Miss. Ct. App. 2019).
¶21. In other matters, e.g., motions for modifications, an award of attorney’s fees is based only on the successful party’s inability to pay; in such cases, “the Mississippi Supreme Court established several factors [in McKee, infra,] to determine the proper amount of attorney’s fees to award in domestic cases.” Chism v. Chism, 285 So. 3d 656, 667 (¶39) (Miss. Ct. App. 2019). “The McKee factors state that an award of attorney’s fees ‘should be fair, should
compensate only work actually performed, and should be based upon a finding that the work was reasonably required and necessary.’” Id. (quoting Deborah H. Bell, Bell on Mississippi Family Law § 12.02[l], at 359 (1st ed. 2005) (discussing McKee v. McKee, 418 So. 2d 764 (Miss. 1982))). The McKee factors include the following:
(1) relative financial ability of the parties; (2) the skill and standing of the attorney employed, (3) novelty and difficulty of issues in the case, (4) the
responsibility required in managing the case, (5) time and labor required, (6) the usual and customary charge in the community, and (7) whether the attorney was precluded from undertaking other employment by accepting the case. Baumbach v. Baumbach, 242 So. 3d 193, 208-09 (¶54) (Miss. Ct. App. 2018) (Fair, J., concurring in part and dissenting in part). This Court permits an award of attorney’s fees “in a divorce case where the requesting party establishes an inability to pay.” Stewart v. Stewart, 2 So. 3d 770, 776 (¶18) (Miss. Ct. App. 2009) (quoting Gray v. Gray, 745 So. 2d 234, 239 (¶26) (Miss. 1999)). “However, if a party is financially able to pay her attorney, an award of attorney’s fees is not appropriate.” Id. (citation omitted).
¶22. In Wilkinson, we acknowledged that although both parties were found in contempt, the court can still award one party attorney’s fees. Wilkinson, 281 So. 3d at 167 (¶55). There, Rod and Stephanie Wilkinson were both found in contempt for making derogatory remarks; therefore, the court declined to award attorney’s fees to either party on that issue. Id. at (¶53). However, Rod argued Stephanie could not receive any attorney’s fees because she was found in contempt on one issue (the unclean hands doctrine [Fn omitted]), but this court was not persuaded by Rod’s argument. Id. at (¶55). In addition to the contempt for derogatory remarks, the court found Rod in contempt regarding child support and visitation. Id. at 159 (¶5). We affirmed the award to Stephanie of $3,700.00 in attorney’s fees for Rod’s contempt of child support and visitation requirements. Id. at 169 (¶62).
¶23. In Wilkinson, we also found the chancery court properly analyzed the attorney’s fees for the contempt actions and other actions separately. For matters other than contempt, the court used the inability to pay standard to determine attorney’s fees, which incorporated McKee factors in determining Stephanie’s inability to pay. Id. at (¶58). Therefore, we affirmed the award of $4,933.00 in attorney’s fees not attributable to the contempt actions.
Id. at 169 (¶62).
¶24. In this case, like Wilkinson, we find no error in the chancery court’s award of attorney’s fees for Karen, even though she was found in contempt on a minor issue. Here, the chancery court found Melvin in willful, wanton, and contumacious contempt for his failure to pay child support and failure to pay alimony. The court also found Melvin in contempt for his failure to immediately obtain life insurance in the amount of $50,000.00. The court only found Karen in contempt for her failure to produce a copy of the child’s shot records upon Melvin’s request. Therefore, the court did not err in awarding Karen attorney’s fees. However, the court did err in the amount of attorney’s fees it awarded Karen.
¶25. The record shows attorney’s fees based on the cumulative amount of time spent on the contempt actions and modifications matters. Karen’s pleadings involved issues other than contempt, such as modification of custody and visitation. Prior to the final hearing, the parties went to court on these matters and resolved all but the contempt matters.
¶26. The chancery court erred in awarding Karen attorney’s fees for her representation in all these matters. The only factor that the chancery court addressed in ruling to award all attorney’s fees to Karen was the number of times the parties have been to the court. Without more, we find that the chancery court’s decision to award attorney’s fees should be reversed and remanded for proper determination of the amount of attorney’s fees attributable to the contempt actions and the amount of attorney’s fees owed, if any, for the other matters.
May 1, 2020 § Leave a comment
“The majority of people believe in incredible things which are absolutely false. The majority of people daily act in a manner prejudicial to their general well-being.” — Ashley Montagu
“Believe nothing, O monks, merely because you have been told it … or because it is traditional, or because you yourselves have imagined it. Do not believe what your teacher tells you merely out of respect for the teacher. But whatsoever, after due examination and analysis, you find to be conducive to the good, the benefit, the welfare of all beings—that doctrine believe and cling to, and take it as your guide.” — Buddha, attributed
“I am not going to question your opinions. I am not going to meddle with your belief. I am not going to dictate to you mine. All that I say is, examine; enquire. Look into the nature of things. Search out the ground of your opinions, the for and the against. Know why you believe, understand what you believe, and possess a reason for the faith that is in you. … But your spiritual teachers caution you against enquiry — tell you not to read certain books; not to listen to certain people; to beware of profane learning; to submit your reason, and to receive their doctrines for truths. Such advice renders them suspicious counsellors. By their own creed you hold your reason from their God. Go! ask them why he gave it.” — Frances Wright