October 19, 2015 § Leave a comment
If the separate maintenance is denied, may the chancellor nonetheless order financial relief?
In Spotswood v. Spotswood, decided by the COA on September 1, 2015, the chancellor at trial ruled that Lori and Robert Spotswood were equally at fault in the separation, and, therefore, that Lori was not entitled to separate maintenance. The chancellor ordered Robert to reimburse Lori for the monthly health insurance premium that she pays through her employment for his health insurance coverage, and to pay one-half of the mortgage on the marital residence.
On the face of it, the judge’s order makes some sense. Robert, after all, is benefitting from Lori maintaining his coverage under her health insurance at her expense. She may not be able to cancel that coverage while they are still married. Likewise, Robert is no longer living in the home, and Lori is stuck with 100% of a joint debt. It only seems fair that Robert should pay his fair share.
Robert appealed, though, complaining that the judge had no authority after he denied separate maintenance to order in this action that he make those payments. Judge Irving, writing for the court, agreed, reversing and rendering:
¶7. In Pool v. Pool, 989 So. 2d 920, 927 (¶¶20-21) (Miss. Ct. App. 2008) (internal citations and quotation marks omitted), this Court stated:
Separate maintenance is [a] court[-]created equitable relief based upon the marital relationship. The purpose of a decree for separate maintenance is to compel the husband to resume cohabitation with his wife or to provide for her separate maintenance. . . . The [chancery court] may award separate maintenance when (1) the parties have separated without [substantial] fault by the [requesting party;] and (2) the [nonrequesting party] has willfully abandoned the [requesting party] and [has] refused to [provide] support [therefor].
¶8. For a chancery court to award separate maintenance, it must first find that the aforementioned requirements have been met. Once those requirements are met, then the court may, in its discretion, award support. However, if the court finds that separate maintenance is unwarranted, it cannot, in the name of equity, do an end-run around what the law forbids by ordering one spouse to undertake certain financial obligations for the benefit of the other spouse. In this case, because the chancery court found that Lori was not entitled to separate maintenance, the chancery court lacked the authority to order Robert to make the payments.
So, does this mean that Lori is stuck making Roberts’ health insurance premium payments and the entire mortgage payment? Not necessarily. The opinion continues:
¶9. To be clear, we do not address the issue of whether the chancery court erred in denying Lori separate maintenance, as that issue is not before this Court. Nor should anything in this opinion be interpreted as holding that Lori is required to continue to pay Robert’s insurance premiums or the entire mortgage payment without reimbursement from Robert. As to the latter, the mortgage contract dictates the obligations of the parties. We only hold that the chancery court erred as a matter of law in ordering Robert to make the payments after denying Lori’s request for separate maintenance. Accordingly, we reverse the chancery court’s judgment as to the payments and render judgment in favor of Robert.
In other words, Lori may maintain an action to recover from Robert, but not in this case, since all she sought was separate maintenance, which was denied. I think she might have achieved a different result had she pled in the alternative for either separate maintenance or for contribution from Robert for his share of the premiums and/or mortgage payments. You can join as many actions as you have against a party in the same complaint.
August 13, 2015 § Leave a comment
I pointed out here not too long ago that there is a significant distinction between the systems of law and equity in civil actions. Law courts (except in the case of an injunction action) grant money judgments and common-law remedies such as writ of habeas corpus. Equity (chancery courts) craft a remedy that will solve the underlying problem by crafting a remedy that may include coercion, prohibition, possession, dispossession, imposition of a trust or lien, money judgment, and any other action or combination of actions deemed appropriate to the situation.
Yet, as fundamental as that distinction is, I have posited here before that it seems more and more to be a challenging concept to our appellate courts.
Even in states that have merged law and equity, the distinction between legal and equitable remedies is important, because in those states, equitable remedies may not be imposed until the court finds that legal remedies are inadequate. UCLA Law Professor Samuel Bray has written a paper pointing out that the classification of some remedies as equitable is alive and well in jurisprudence across the nation, and that equitable remedies are actually part of a system that must not be dismantled unless and until something better replaces it. I believe his piece helps illuminate how vital equity, and chancery court, is in the scheme of our jurisprudence.
Here is the abstract:
The conventional wisdom is that the distinction between legal and equitable remedies is outmoded and serves no purpose. This Article challenges that view. It argues that the existing equitable remedies and remedy-related doctrines can be seen as a system. The components of the system fall into three categories: (1) equitable remedies, (2) equitable managerial devices, and (3) equitable constraints. These components interact subtly and pervasively. Together, they make the system of equitable remedies well suited to controlling a defendant’s behavior, especially in ways that are open-ended and adverbial. The system of equitable remedies is a useful and integrated whole.
This argument offers some support for an emerging body of Supreme Court cases that have sharply distinguished between legal and equitable remedies — cases such as Great-West Life & Annuity Ins. Co. v. Knudson, eBay v. MercExchange, and Petrella v. MGM. Moreover, this argument helps explain why there has been so little merger between law and equity in remedies, even as merger has happened in other aspects of American law. Finally, this argument offers a new perspective on the adequacy requirement, showing that it helps maintain the system of equitable remedies.
You can reach his article at this link. You might find his research handy next time you have a chancery appeal involving equitable remedies.
Thanks to Professor Bray for bringing this to our attention.
August 11, 2015 § 3 Comments
“It has been said: ‘[E]quity must follow the law. But where the law provides no remedy, equity may do so.’ To that we would add: Since ‘equity must follow the law,’ where the law prohibits a remedy, equity may not do so.”
That is the first sentence (footnote omitted) of the COA’s opinion in Mosley v. Triangle Townhomes, LLC, penned by Judge Maxwell, and decided July 28, 2015.
In that case, Harold Mosley had filed suit in chancery court for specific performance against Triangle Townhomes, LLC, who, he alleged, had promised to pay him “a fair and equitable finder’s fee if he found a buyer” for that company’s apartment complex. Mosley did find a buyer, who paid $6 million. Mosley, who was not a licensed real estate broker, claimed that he had repeatedly demanded that Triangle pay him, but the entity refused. He wanted the chancery court to award him a finder’s fee of between 3% and 5% ($180,000 – $300,000), since a licensed realtor would have charged 6% to 10% ($360,000 – $600,000).
Now, this would seem on the surface to be the quintessential case for equitable relief. A promise, upon which another acted in good faith, producing monetary benefit to the promisor, followed by a refusal to pay. Equity to the rescue, right?
Not so fast.
Triangle filed a R12(b)(6) motion to dismiss for failure to state a claim because MCA 73-35-33(1) prohibits any person without a license from filing suit to recover a real estate broker’s fee. Judge Maxwell described how the chancellor ruled:
¶6. The chancellor agreed that no equitable doctrine or quasi-contract theory could prevail over the clear public policy that anyone performing real-estate-broker services, even just one time, must be duly licensed. See Miss. Code Ann. § 73-35-1 (Rev. 2012); Miss. Code Ann. § 73-35-3(1), (3) (Rev. 2012). Mosley was not a licensed real estate broker. Nor did he fall under a statutory exception. See Miss. Code Ann. § 73-35-3(8) (Rev. 2012). So because section 73-35-33(1) prohibited him from suing for any fee connected with real-estate-broker services, the chancellor dismissed Mosley’s action.
Mosley appealed, and in an eight-page opinion, the COA affirmed, concluding essentially the same as had the learned chancellor.
This case illustrates that equity does, indeed, follow the law. The law prohibited Mosley from bringing his suit, and the chancellor followed the law that dictated that result. In doing so, the chancellor followed one of equity’s most ancient and keystone maxims. Judge Maxwell’s corollary: ” … where the law prohibits a remedy, equity may not do so (i.e., provide a remedy)” is the flip side of that maxim.
I’m always heartened when I see maxims and equitable principles at the heart of our appellate court decisions. I take it as a sign that maybe equity is still viable, after all. So in honor of the occasion, I propose adoption of a new maxim of equity, which I will call Judge Maxwell’s Maxim: “Where the law prohibits a remedy, equity may not provide that remedy.” Hear, hear!
July 28, 2015 § 5 Comments
One of the chief distinctions between chancery and the law courts is that chancery is often called upon to be a problem-solving venue, as opposed to a place where one goes to obtain a money judgment against another.
And the chancellor’s authority to fix the situation can extend beyond the specific relief spelled out in the pleadings.
Many, many cases can come to mind to illustrate what I am talking about, but here are a couple:
- A case in which there is an acrimonious battle over child custody. In the course of the trial, the proof develops that both of the parties are using the children as pawns and spies, and are downgrading the other parent to the children. The pleadings filed by each party asked only for custody. Is the chancellor precluded from addressing the deleterious conduct in her final judgment? Of course not. Chancellors often add an injunction against conduct like that, whether asked for in pleadings or not. That has been the practice in chancery as long as I have been around, and it should be.
- Another example could arise in a land-line case. That type case is often characterized by property damage and atrocities, threats, and breaches of the peace (as, for instance in this COA case). Faced with evidence of such misconduct, can the chancellor deal with it even in the absence of an express prayer for relief? I think she should.
The principle embodied in those cases is why pleadings in chancery court typically include the ending phrase ” … and (s)he prays for general relief.” General relief flows out of the reservoir of equitable power that a chancellor can draw on to solve the problem, not just award money judgments. That is, after all, what equity was created for in the first place.
In the case of Redmond v. Cooper, 151 Miss. 771, 119 So. 592 (1928), the court had this to say about general relief:
“A prayer for general relief is as broad as the equitable powers of the court. Under it, the court will shape its decree according to the equities of the case, and, broadly speaking, will grant any relief warranted by the allegations of the bill, whether it is the only prayer in the bill, or whether there is a special prayer for particular and different relief; and defects in the special prayer are usually cured by a general prayer. If the facts alleged are broad enough to warrant relief, it matters not how narrow the specific prayer may be, if the bill contains a prayer for general relief. The prayer for general relief serves to aid and supplement the special prayer by expanding the special relief sought, so as to authorize further relief of the same nature. It may also serve as a substitute for the prayer for special relief, and authorize relief of a different nature when that specially prayed is denied.”
No doubt the above was what the chancellor had in mind in the course of legal proceedings between Denise Pratt and Darlene Nelson. Pratt had been making threatening phone calls to Nelson, and had been driving by her home at night. On one day, over the course of a few hours, Pratt sent Nelson 78 text messages, 38 telephone messages, 38 phone calls, and numerous voicemail messages, both via landline and cell phones. Nelson testified that Pratt used profanity and threatened that she and members of her household “would burn alive.” Nelson’s daughter was awakened by one of the calls, became frightened by what she heard, and fell while running to her mother, suffering an injury that required stitches in an emergency room.
Nelson filed a petition for an ex parte emergency domestic relations order in municipal court. Later, she filed a petition for a domestic abuse protection order in chancery court. In both instances, she used the forms provided by the Mississippi Attorney General, pursuant to MCA 93-21-1 through 33.
Trial before the chancellor commenced, but could not be completed within the time allotted. The case had to be continued to another day. The chancellor found the evidence to that point sufficient to support an injunction against Pratt prohibiting her from going within 1,000 feet of any party to or witness in the proceeding until the hearing could be concluded. After the hearing had been reconvened and the proof was concluded, the chancellor ruled from the bench, in part [quoting from Fn 6 of the COA’s opinion cited below]:
“… people are entitled to be left alone. . . . I’m going to keep the restraining order that I set in place at the close of the plaintiff’s case. But I am going to up [the penalty] to $10,000 upon a . . . valid showing of violation of the restraining order that I entered against you, Mrs. Pratt. . . . I think that’s reasonable. . . . I see a pattern of how this has taken place. . . . It’s [been an] ongoing controversy . . . for quite some time.” When Pratt’s counsel asked if the order was granted under the Domestic Abuse Protection Act or under Rule 65, the chancellor responded that he was granting it under the “Chancery Court Rules, . . . a temporary restraining order [under Rule] 65(b), whether it is asked for or not, because that would be general relief.”
Pratt appealed, complaining that the chancellor had erred in issuing an injunction per MRCP 65 when a protective order under the statute should have been issued instead. The COA agreed with her and reversed and rendered in Pratt v. Nelson, decided July 21, 2015.
I can’t disagree with the COA’s conclusion that the chancellor in this particular case went beyond the scope of the domestic-violence statute and the limits of the relief that it allows. What gives me pause, though is that the underlying problem here remains unresolved. The chancellor was there to solve or at least address the problem, which appears from the record to have been serious. He tried to do that via general relief, and, from my reading of the case law, he was within the scope of that authority. The cases on general relief and its parameters are, for the most part, old cases, dating as far back as the 1880’s and into the 1970’s. But that does not indicate that the concept is dead. In Bluewater Logistics, LLC v. Williford, 55 So.3d 148 (Miss. 2011), the MSSC upheld a chancellor’s award of equitable relief against defendants where it had not been expressly pled, but the relief was justified and supported by the evidence.
It seems to me that, ever since the MRCP for the most part did away with entirely different procedures in chancery and the law courts, the appellate courts have been viewing equity in a more limited way, rather than in the expansive view that cases like Redmond employed. It seems that the appellate courts want equity to operate within rigid, prescribed parameters like the law courts, rather than in a more fluid, problem-solving fashion.
When we restrict a chancellor’s power to craft an adequate solution to a human situation in which lives, property, money, and relationships are involved, we can put all of those at risk in the name of proper procedure. Surely no reasonable person wants that kind of result. That’s why we have “general relief” and chancery courts in the first place.
January 28, 2015 § 1 Comment
Jeanette Brown and Edward Wilson (Brown) filed suit against Virginia Jones and others (Jones) to set aside a will and some inter vivos gifts made in favor of Jones by the decedent, J.T. Smith. After a trial, the chancellor upheld the will, but did order that the $484,000 in inter vivos gifts were the result of undue influence, and ordered that they be repaid to the estate.
Brown appealed, claiming inter alia that the trial court erred by not imposing a constructive trust on the funds.
The COA, In the Matter of the Last Will and Testament of J.T. Smith: Brown, et al. v. Jones, et al., handed down September 2, 2014, affirmed the chancellor’s decision not to impose a constructive trust. Judge James, for the court:
¶39. A constructive trust has been defined as follows:
A constructive trust is one that arises by operation of law against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy.
Yarbrough v. Patrick, 65 So. 3d 865, 871 (¶28) (Miss. Ct. App. 2011) (quoting Alvarez v. Coleman, 642 So. 2d 361, 367 (Miss. 1994)). A constructive trust is “a means by which one who unfairly holds a property interest may be compelled to convey that interest to another to whom it justly belongs.” Van Cleave v. Estate of Fairchild, 950 So. 2d 1047, 1054 (¶29) (Miss. Ct. App. 2007). A constructive trust “arises by implication from the relationship and conduct of the parties and may be established by parol testimony.” Id. “It is the relationship plus the abuse of confidence that authorizes a court of equity to construct a trust for the benefit of the party whose confidence has been abused.” Id. at 1054-55 (¶29). Finally, “the proponent of such a trust must show its necessity by clear and convincing evidence.” Yarbrough, 65 So. 3d at 871 (¶28).
¶40. Here, we find that Brown has failed to show, by clear and convincing evidence, that a constructive trust is necessary. The chancellor found that a confidential relationship existed between Jones and Smith and that Jones failed to rebut the presumption of undue influence, which arose due to that confidential relationship. However, the chancellor did not find that Jones abused the confidential relationship, only that she failed to rebut the presumption of undue influence that arose by operation of law due to the existence of a confidential relationship. Absent a finding of fraud, duress, abuse of confidence, commission of wrong, unconscionable conduct, or the use of other questionable means, we are not compelled to impose a constructive trust.
¶41. Furthermore, a constructive trust is typically imposed where the aggrieved party has no adequate remedy other than through equity. As our supreme court has stated, “[a] constructive trust is raised by equity to satisfy the demands of justice.” Church of God Pentecostal Inc. v. Freewill Pentecostal Church of God Inc., 716 So. 2d 200, 207 (¶23) (Miss. 1998). The supreme court has further noted:
A constructive trust is a fiction of equity. It is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee. The equity must shape the relief and courts are bound by no unyielding formula. Id. (quoting Russell v. Douglas, 243 Miss. 497, 505-06, 138 So. 2d 730, 734 (1962)).
¶42. However, here, we fail to see why the remedy ordered by the chancellor was inadequate, necessitating the imposition of a constructive trust. The chancellor ordered that the $450,000, which was removed from Smith’s AmSouth account and placed in the various CDs, and any interest earned upon the funds, be returned to the estate and distributed pursuant to the terms of the will.
¶43. We find that the chancellor did not abuse his discretion by failing to impose a constructive trust and Brown has failed to demonstrate, by clear and convincing evidence, that a constructive trust is necessary here. Accordingly, this issue is without merit.
The key point here is that you must establish by clear and convincing evidence that a constructive trust is necessary, and that other avenues of relief would be inadequate. It’s within the chancellor’s discretion. In this case, the chancellor was satisfied, apparently, that the funds were readily identifiable, available, liquid, and would be repaid — all without the necessity of a constructive trust.
December 18, 2014 § 5 Comments
Jay Wilson and Joy Stewart were engaged in a contempt action over Jay’s failure to pay child support, alimony, and expenses of the children, based on the parties’ 2003 divorce judgment.
The chancellor found Jay in contempt, awarded Joy a judgment, and Jay appealed. Among his grounds for appeal was the claim that Joy was equitably estopped from bringing the child-support-enforcement action, since she had waited several years to do so.
The COA, in Wilson v. Stewart, decided December 9, 2014, by Judge Fair, addressed his argument briefly:
¶14. Jay also argues that Joy is equitably estopped from bringing the contempt action. This Court has found equitable estoppel to be inappropriate in child-support matters. Durr v. Durr, 912 So. 2d 1033, 1038 (¶14) (Miss. Ct. App. 2005). “[C]hild support is for the benefit of the minor. The custodial parent is only a conduit for the support. Therefore, it follows that no action or inaction on the part of the custodial parent can relieve the defaulting parent of that parent’s obligation to pay support.” Id. This argument is without merit.
The Durr decision goes somewhat further:
¶ 13. [Mr.] Durr also argues that Hale is equitably estopped from bringing the contempt action. “Equitable estoppel,” as Durr points out in his brief, “is generally defined as the ‘principle by which a party is precluded from denying any material fact, induced by his words or conduct, upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was followed.’ ” Koval v. Koval, 576 So.2d 134, 137 (Miss.1991).
¶ 14. It is well settled law, as we discussed above, that child support is for the benefit of the minor. The custodial parent is only a conduit for the support. Therefore, it follows that no action or inaction on the part of the custodial parent can relieve the defaulting parent of that parent’s obligation to pay support. Moreover, even if we were to find, which we do not, that equitable estoppel might be appropriate in child support cases, we would likewise find that Durr failed to meet the requirements for its application in this case. He has not shown how he changed his position in such a way that he would suffer injury if Hale is allowed to assert his lack of compliance with the judgment of divorce. In a feeble attempt to show that all of the conditions for the application of the doctrine of equitable estoppel exist, Durr argues that he is facing jail time if the arrearage is not paid. This is hardly the type of injury that is contemplated as a condition for the application of “equitable estoppel.”
¶ 15. Further, Durr does not contend that Hale ever informed him that he did not have to pay for Waid’s private school. Rather, his argument, as we have already noted, is that she just waited too long to assert the claim for it. In other words, Durr’s position is that Hale’s inaction in timely pressing the private school tuition, justifiably led him to believe that he did not have to pay it notwithstanding the clear requirements of the judgment of divorce. Surely, Durr knew that any changes to, or modifications of, the judgment of divorce would have to be made by the court in order for them to be enforceable. Therefore, we find this issue lacks merit.
The court also rejected Durr’s claim that his inaction was justified by his ex’s “inaction, representations, and silence.”
So, from the foregoing, I think a proper conclusion is that claims of equitable estoppel are not favored in child-support cases, and that it would take an extreme case to apply it. An example is the fact situation in Varner v. Varner, where the mother informally induced the father to take one of the children back into his custody due to behavior and school problems. During his period of informal custody (i.e., without a court order), the father reduced his child support pro rata. After the father straightened the child out and returned him to the mother’s custody, she sued for the unpaid child support. Varner is not an equitable estoppel case, per se, but its fact situation would justify such a claim in my opinion.
August 5, 2014 § 10 Comments
I don’t think I’m overstating when I say that the sum of case law requires chancellors to be at times mindreaders, engineers, valuation experts, tax experts, soothsayers, sages, interpreters, accountants, astrologers, psychologists, geneticists, mathematicians, theologians, and, always, legal scholars. I am sure, with a little research, I could add some more roles that our jurisprudence has conferred on chancery judges.
As for the role of mathematician, it has long been the law in Mississippi that the judge may do calculations to arrive at her conclusions. That almost goes without saying, since many cases we hear involve piles of bank statements, appraisals, balance sheets, general ledgers, financial statements, tax returns, and all kinds of other data that require number-crunching.
But how far does that computational authority extend?
That was the question posed in the COA case of Pruitt v. Pruitt, decided July 29, 2014. In Pruitt, the chancellor had less than ideal proof of the value of the parties’ respective PERS accounts in an equitable distribution/alimony case. He requested further proof to support his decision, but the parties told him, in essence, that such proof was unavailable. In other words, “Judge, you’re on your own.”
Faced with what he apparently considered a dearth of proof, the chancellor found information in a PERS handbook and website that he used to calculate the value of the husband’s PERS account. Based on the figures he derived from his computations, the judge ordered Mr. Pruitt to pay Mrs. Pruitt alimony (or division of PERS benefits; it’s not clear to me which), and he awarded her a judgment for more than $90,000, which was his calculation of the difference in their estates.
Mr. Pruitt appealed. Judge Roberts, for the COA, addressed his issues:
¶9. Ira’s issue on appeal stems from the fact that after the parties went to trial, the chancellor found information from a PERS handbook and the PERS website and determined a value for Ira’s PERS retirement account. Ira argues that the chancellor erred by considering evidence outside the record. We agree.
¶10. In Dunaway v. Dunaway, 749 So. 2d 1112, 1121 (¶28) (Miss. Ct. App. 1999), a chancellor was faced with proof of valuation that was “something less than ideal.” Consequently, the chancellor “made valuation judgments” that had at least some evidentiary support in the record. Id. This Court stated that “[t]o the extent that the evidence on which the chancellor based his opinion was less informative than it could have been, we lay that at the feet of the litigants and not the chancellor.” Id. Accordingly, this Court found that the chancellor had not abused his discretion. Id.
¶11. Although a chancellor may value assets based on evidence that is based on something less than ideal, the chancellor’s valuation must be based on at least some evidentiary support in the record. In other words, we must draw a distinction between less-than-ideal evidence presented by parties to the litigation, and information outside of the record that neither party presented. Despite the chancellor’s clear and thorough attempt to resolve the issue in an equitable manner, under the precise circumstances of this case, we must find that it was an abuse of discretion to consider evidence that was outside the record. It follows that we remand this case for further proceedings.
Having said that, the COA’s remand instructions help illuminate the scope and approach that applies:
¶12. On remand, the chancellor may exercise his considerable discretion when calculating the manner in which Ira’s PERS retirement benefits should impact the equitable distribution of Ira’s and Lena’s marital assets and liabilities. We are aware of no restriction on the chancellor’s right to calculate Ira’s income based on the monthly payments he receives from his PERS annuity – at least to the extent that such income impacts Ira’s ability to pay Lena alimony. But we caution the chancellor to remain mindful that Ira cannot exercise any option to pay Lena a lump-sum figure from his PERS retirement account. Essentially, a lump-sum payment from Ira’s PERS account would operate as a qualified domestic relations order (QDRO). A QDRO is permissible in the context of a retirement account governed by the Employment Retirement Income Security Act (ERISA). See Parker v. Parker, 641 So. 2d 1133, 1137 (Miss. 1994). But ERISA does not apply to retirement plans that are “established and maintained for its employees by . . . the government of any State . . . .” 29 U.S.C. § 1321(b)(2) (2012). PERS was established “for the purpose of providing retirement allowances and other benefits . . . for officers and employees in the state service and their beneficiaries.” Miss. Code Ann. § 25-11-101 (Rev. 2010). Furthermore, accrued PERS benefits are “exempt from levy and sale, garnishment, attachment or any other process whatsoever, and shall be unassignable except as specifically otherwise provided in this article . . . .” Miss. Code Ann. § 25-11-129(1) (Rev. 2010). Therefore, a lump-sum payment from an accrued PERS retirement account is not permissible by way of a QDRO. We recognize that the chancellor’s order did not specifically attempt to award Lena any figure by way of a QDRO – at least not in name. When the chancellor denied Ira’s motion for reconsideration, he noted Ira’s claim that the lump-sum judgment was a “masked” QDRO “under another name.” The chancellor found no merit to Ira’s claim, but he did not discuss his reasoning. Notwithstanding the name used to describe the lump-sum judgment, the mechanics involved operate no differently than a QDRO. Most importantly, it is legally impossible for Ira to transfer a lump-sum figure from his PERS account. A legally impossible option is not an option at all.
That last paragraph is something you should clip and paste into your notebook of useful chancery information.
Keep in mind that it’s up to the lawyers, and not the judges, to marshal and get into evidence the proof that will support their client’s case. It’s frustrating in the extreme for a judge to have an incomplete and inadequate record which the chancellor is required to analyze applying two, three, four, or more sets of appellate-court-mandated factors.
One point about this case has me scratching my head, though. MRE 201 specifically states that “[a] court may look to any source it deems helpful and appropriate, including official public documents, records and publications …” Unless I am missing sosmething, I would guess that a PERS handbook and the agency’s website would come within that definition. I wonder whether the COA took into account or even considered the broad scope of judicial notice that the MSSC has allowed judges. I posted about the rather breathtaking scope of it here. Three points from that post:
- In Witherspoon v. State ex rel. West, 138 Miss. 310, 320, 103 So. 134, 136-37 (1925), the court held that it was within the judge’s diecretion to ” … resort to … government publications, dictionaries, encyclopedias, geographies, or other books, periodicals and public addresses. (citing, inter alia, Puckett v. State, 71 Miss. 192, 195, 14 So. 452, 453 (1893)). Nothing in Rule 201 casts doubt on Witherspoon.”
- In Enroth v. Mem’l Hosp. at Gulfport, 566 So. 2d 202, 205 (Miss. 1990), the chancellor’s decison was upheld, notwithstanding that he took judicial notice, without advising the parties in advance, of: (1) numerous newspaper articles discussing the nature, operation and funding of Memorial Hospital, (2) conversations with physicians, (3) conversations with the Chancery Judge’s own niece who was an employee at the hospital, (4) conversations with a lawyer not involved with this particular case but who was familiar with the matter, and (5) the fact that, before becoming Chancery Judge and in his prior capacity as a lawyer, he had been involved in a lawsuit regarding the hospital in which its legal status had been an issue.
- In neither of these cases, nor in the more contemporary case cited in my previous post, to my knowledge, did the judges give advance notice of the matters of which they took judicial notice in their rulings.
Why was it error for the chancellor in Pruitt to consult with official publications in making his calculations, but it was not error in the cases cited above for the judges to range far beyone the record in making their findings?
Was it the computation in Pruitt that was the offending act, or was it going outside the record? I’ll leave it to you to calculate.
July 30, 2014 § 6 Comments
Many years ago I represented two young children whose mother had died while on an ill-fated catfishing trip to the flooded Lost Horse Creek in northeast Lauderdale County. She had been invited on the outing by her husband, who only the week before had taken out $400,000 in life insurance policies on her life, with himself as sole beneficiary. The policies had double-indemnity provisions for accidental death.
The husband claimed that the wife had slipped in the rain-soaked mud, fell into the creek and must have hit her head on a tree limb, knocking her unconscious and either killing her by the blow, or she drowned.
The coroner disagreed, finding that she had suffered more than one heavy, crushing blow to the back of the skull with a blunt object — an injury that was inconsistent with the circumstances the husband claimed — and there was no water in her lungs, indicating that she was dead before she fell in the creek.
The husband was indicted for murder, and the proof at trial included that he had offered a local bar owner $5,000 to kill her some ten months before he himself did the deed. The husband was convicted of murder. His appeal was unsuccessful. Hammond v. State, 465 So.2d 1031 (Miss. 1985).
I filed a petition in chancery court to have the husband disqualified from recovering the insurance proceeds, which had been interpled by the insurance companies. He contested the matter, but the chancellor ruled that the proceeds were property of the woman’s estate, the only heirs of whom were the two sons. There was no appeal.
The law of Mississippi is that a life insurance beneficiary who wilfully takes the insured’s life may not recover the insurance benefits. Gholson v. Smith, 210 Miss. 28, 29, 48 So.2d 603, 604 (Miss. 1950). In the case of Dill v. Southern Farm Bureau Life Ins. Co., 797 So.2d 858, 866 (Miss. 2001), the court ruled that the standard of proof is by a preponderance.
The same rule applies in inheritance.
In the recent case of Young v. O’Beirne, adm’r of the Estate of Young, decided by the COA on June 3, 2014, the COA found that Mr. Young, who indisputably had murdered Mrs. Young, could not have any interest in her estate, based on MCA 91-1-25, which provides that “[i]f any person wilfully cause[s] or procure[s] the death of another in any way, he shall not inherit the property, real or personal, of such other; but the same shall descend as if the person so causing or procuring the death had predeceased the person whose death he perpetrated.”
A similar code section is found at MCA 91-5-33, which provides that a person who has wilfully caused or procured the death of another person shall not take any real or personal property of the decedent under any will, testament or codicil, and as to any such devise the testator is deemed to have died intestate.
Note that a plea of guilty to manslaughter, standing alone, is not sufficient to support a finding that would preclude inheritance under either statute. Hood v. VanDevender, 661 So.2d 198 (Miss. 1995). That would not preclude the chancery court, however, from finding that the act rose to the level of wilfullness that would invoke either statute, because the killing need not amount to murder, but the proof only needs to establish that it was wilful and without justification in law. Henry v. Toney, 211 Miss. 93, 50 So.2d 921 (1951).
The courtly Mr. Tom Ethridge, who taught equity and chancery practice at Ole Miss Law School years ago when such things were still worthy subjects of legal academia, used to say, “Equity means do right.” Do right. That is behind these laws. I recently told a young lawyer that if you’re uncertain about what the law might be in a given situation, figure out what the most honest, forthright thing to do might be, and you’ll probably be pretty close to what the law requires. Just do right.
June 2, 2014 § Leave a comment
Consider this description of what Joel Misita argued was a sign …
“It is a three-sided structure with a floor and a corrugated metal roof. It is constructed of metal and wood. It is triangular in shape and connects to three poles that form a frame, with two wheels. Each side is eighteen feet in length.The height is approximately fifteen feet, and the structure is capable of being raised higher. Exterior steps and a landing are attached to the back side. Two sides of the structure serve as illuminated signage. Each of those two sides contains four exterior lights that extend outward from the roofline a few feet and hang down, resembling street lamps. On the remaining side, the back side, a singlelight illuminates the door and exterior steps used for entry. The door may be locked by key and has glass window panes. An aerial power line provides electricity to the interior of the structure, in addition to the outside lighting. The interior is approximately 140 square feet. It is a fully-enclosed room, complete with a floor and a roof. The room is air-conditioned and serves as a showroom for some of Misita’s works. Although wheels are attached, the structure has not been moved since Misita placed it in its current position, by fitting and cross-bolting the frame into permanently attached receptors set by concrete into the ground.”
He took that position because he had constructed the thing on a three-acre parcel that was subject to a restrictive covnenant that “No structures are to be erected on the property.” If it’s a sign, it’s not a structure, right? His neighbors, the Conns, disagreed and filed suit in chancery court.
The chancellor ruled that the edifice was, indeed, a structure in violation of the restrictive covenant, and ordered Joel to take it down. Joel appealed.
The COA affirmed the chancellor’s authority to enforce the restrictive covenant, but reversed the finding that it was a structure, finding instead that it was a sign, as Joel maintained. The MSSC granted the Conns’ petition for cert.
In the case of Misita v. Conn, handed down May 15, 2014, the MSSC reversed the COA on whether the thing was a structure, and affirmed and reinstated the chancellor’s ruling. After concluding that the restrictions do run with the land and are enforceable between these parties, the court turned to the sign-or-structure issue:
¶10. … [W]e now analyze whether the object of this dispute is a structure or not. “Generally, courts do not look with favor on restrictive covenants.” Kemp v. Lake Serene Prop. Owners Ass’n, Inc., 256 So. 2d 924, 926 (Miss. 1971). “Such covenants are subject more or less to a strict construction and in the case of ambiguity, construction is usually most strongly against the person seeking the restriction and in favor of the person being restricted.” Id. “An important corollary rule, however, is that the clear and unambiguous wording of protective covenants will not be disregarded merely because a use is prohibited or restricted.” Andrews v. Lake Serene Prop. Owners Ass’n, 434 So. 2d 1328, 1331 (Miss. 1983). “If the intent to prohibit or restrict be expressed in clear and unambiguous wording, enforcement is available in the courts of this state.” Id. “The language of restrictive covenants is to be read ‘in its ordinary sense,’ considering the entire document as well as the circumstances surrounding its formulation to ascertain its meaning, purpose and intents.” Stokes [v. Bd. of Dir. of La Cav Imp. Co.], 654 So.2d [524,] at 527 [(Miss. 1995)].
¶11. Both the circumstances and the plain language of the deed evidence that the word “structure” is clear and unambiguous and has broader application than sixty-two-feet-high buildings. “A reviewing court is concerned with what the contracting parties have said to each other, not some secret thought of one not communicated to the other.” Royer Homes, 857 So. 2d at 752 (quoting Turner v. Terry, 799 So. 2d 25, 32 (Miss. 2001)). Therefore, the language of the restriction should be read in its “ordinary sense.”
¶12. We find that Misita’s “sign” is a “structure.” It is a one-room structure, complete with roof, floor, air conditioning, lights, door with window panes, and a staircase, inter alia. While not a bridge or dam, it is akin to a building or edifice, and is clearly “something built or constructed. Despite its adaptability for transport, it had not been moved since Misita erected it. The chancellor, who physically inspected the structure, found that it “is anchored to pipes which are sunk in the ground and Misita further secured the pipes by concrete.”
¶13. Black’s Law Dictionary defines a structure as “[a]ny construction, production, or piece of work artificially built up or composed of parts purposefully joined together.” Black’s Law Dictionary 1464 (8th ed. 2004). In Sullivan v. Kolb,the Court of Appeals defined “structure” as “[s]omething made up of a number of parts that are held or put together in a particular way. —The way in which parts are arranged or put together to form a whole; makeup.—The interrelation or arrangement of parts in a complex entity.—Something constructed.” Sullivan v. Kolb, 742 So. 2d 771, 777 (Miss. Ct. App. 1999) (citing The American Heritage College Dictionary (3d ed. 1993)). It is a structure under both Black’s and Sullivan, as it is “composed of parts purposely joined together.” We find no error in the chancellor’s finding.
The court also pointed out in Fn 7 that the COA’s conclusion that the object was not a structure because it was not a building, dam, or bridge was not “consistent with its common usage, for there are many structures that do no qualify as a building, dam, or bridge, e.g., the Washington Monument, the Statue of Liberty, or the Great Sphinx, inter alia.”
This case is a nice complement to Rawaid d\b\a B.P. Quickmart v. Murguia & Arias Grocery, LLC, 124 So. 3d 118, 121 (Miss. App. 2013), which involved a dispute over interpretation of a restrictive covenant between store owners on adjoining property. Rawaid charged that the Mexican grocery next door violated a restrictive covenant against locating a convenience store on the property. The COA affirmed the chancellor’s conclusion that it did not. The opinion quotes Chancellor Malski’s sage finding that if a customer “ … were driving by these two stores and wanted to buy convenience type items—chips, soft drinks, or gas—even though these items were available at M&A Grocery, [he] would surely go to BP Quickmart. If [he] wanted to buy a piñata, . . . [he] would go to M&A Grocery.” But what about an enchilada to go?
March 24, 2014 § Leave a comment
We talked here recently about the statute of limitations (SOL) applicable in an action to recover land procured by fraud. A 2002 MSSC case sheds further light on when that statute begins to run, and some other related aspects.
In 1979, 24-year-old Michael Cupit appeared uninvited at the home of Mary Lea Reid, a 78-year-old widow living in Liberty, MS. Cupit, who lived some 40-miles distant in Brookhaven, attributed the visit to his interest in antebellum homes and that some of his relatives had sharecropped on Reid’s land decades earlier. From that visit, Cupit contiinued to visit Reid, and he developed a strong relationship with her, despite his departure to commence law school that fall.
The relationship became intimate, according to witnesses and letters exchanged between the two, although Cupit contended that it was a mother-son relationship.
Cupit testified that he had had conversations with fellow law students about how to obtain Reid’s property.
In 1982, Cupit took Reid to a Brookhaven law firm with the intention of being adopted by Reid so as to cut off claims of any of her heirs. After the lawyer met with Reid, he suggested that an adoption was not necessary. Cupit then asked the lawyer to prepare a deed by which Reid conveyed her real property to Cupit reserving a life estate, which was done, and the deed was recorded.
The next day, Cupit assisted Reid in preparing a holographic will devising all of her property to him. As of the date when this was done, apparently, Cupit had been admitted to the bar. The chancellor found that Cupit, not Reid, was the client of the Brookhaven attorney, and that Reid was Cupit’s client.
In 1983, Reid again visited the Brookhaven law firm accompanied by Cupit, this time meeting with a different attorney. The attorney met separately with Reid and took steps to satisfy himself of her independent will and competence. The product of this meeting was a will essentially identical in substance to the holographic will.
In 1986, Reid adopted Cupit.
In 1995, Cupit had Reid’s power of attorney transferred to himself.
Through the years, Cupit alienated Reid from her family and friends, and restricted their access to her.
Reid died in 1997, and Thomas Pluskat filed for administration of the estate. He was appointed administrator, and initiated an action to set aside the will, the deed, adoption, and power of attorney.
At trial, the chancellor found that Cupit had exercised undue influence over Reid, and that the will, deed, adoption and power of attorney should all be set aside. His opinion stated:
The Court finds that the evidence regarding Michael Cupit’s efforts to exclude most, if not all of the family members and some long-time friends of Mary Reid from her, together with Mary Reid’s strong desire to have a child which she had never had, coupled with the engaging and unique personality and tendencies of Michael Cupit, as observed by the court in the evidence as well as personal observations of Mr. Cupit throughout the course of the trial, combined so as to put Mr. Cupit in a position with Mary Reid that Mr. Cupit could and did over-reach and influence Mary Reid to his advantage and her ultimate disadvantage. Mr. Cupit’s influence, subtle and undetected by some of Mary Reid’s friends, was used in order to gain advantage of Mary Reid and to obtain her property consisting of approximately 205 acres of land, an antebellum home that had been in her family for about 140 or so years and substantial and unique family heirlooms located within the home as well as significant amounts of money from the time of Mr. Cupit’s law school days through the time of Mary Reid’s death. During a portion of this time, subsequent to Mr. Cupit’s beginning of the practice of law, he occupied a dual fiduciary role in that he was her attorney and counselor at law.
* * *
The Court finds as a matter of fact and law that the deed, will, adoption, and subsequent power of attorney granted by Mary Reid and /or pursued by Mary Reid and Michael Cupit were the direct result of Mr. Cupit’s efforts to obtain the property of Mary Reid to his own advantage and to her ultimate harm and disadvantage. Therefore, the Court finds that the deed and will were procured as a result of undue influence, overreaching, breach of a fiduciary relationship, breach of an attorney-client relationship, breach of a position of trust that Michael Cupit had gained with and over Mary Reid notwithstanding the fact that she was “strong-willed.”
His first issue on appeal was whether the administrator’s action to set aside the deed was barred by the SOL. In its decision in the case of Estate of Mary L. Reid: Cupit v. Pluskat, handed down May 30, 2002, The MSSC addressed it this way:
¶17. This Court has held that statutes of limitation in actions to recover land begin to run as soon as a cause of action exists. Aultman v. Kelly, 236 Miss. 1, 5, 109 So.2d 344, 346 (1959). However, § 15-1-7 has been construed to require possession by the defendants claiming its protection. Greenlee v. Mitchell, 607 So.2d 97,110 (Miss. 1992); Bowen v. Bianchi, 359 So.2d 758, 760 (Miss.1978); Trigg v. Trigg, 233 Miss. 84, 99, 101 So.2d 507, 514 (1958).
¶18. In Greenlee this Court held that the ten-year statute of limitations on action to recover land did not commence to run as soon as a cause of action existed, upon execution of deed pursuant to undue influence, but only when plaintiffs, the grantor’s heirs, had notice of the existence of an attempted deed, where the defendants had not taken possession in the interim. 607 So.2d at 110.
¶19. Here Cupit did not gain possession with the recording of the 1982 deed. Reid retained a life estate and remained in possession until her death. The only person who could have contested the deed during this period was Reid herself, who was in possession. Therefore, the statute of limitations did not begin to run against Thomas Pluskat until 1997 when Reid died.
¶20. As this suit was commenced well within ten years after Reid died and the defendant was not in possession during her lifetime, Cupit’s claim that the statute had run is without merit.
Cupit also argued that Pluskat had no standing to challenge the adoption, but the MSSC rejected that argument on the basis that it was a fraud on the court, and was part of a long-term scheme by Cupit to take advantage of Reid by fraud and overreaching. The court did conclude, however, that its findings as to the adoption “are specific to the facts of this case.”
Both the will and the deed were found by the chancellor to have been products of undue influence. The MSSC affirmed, saying:
¶25. Cupit argues that the chancellor erred in finding that Reid’s will is void because Reid was competent to make a will and there was no confidential relationship between the two of them.
¶26. As previously discussed, the chancellor found that a confidential relationship and an attorney/client or fiduciary relationship existed between Reid and Cupit. This finding is based on substantial evidence.
¶27. Once a confidential relationship is found, the beneficiary must disprove the presumption of undue influence by clear and convincing evidence. In re Estate of Dabney, 740 So.2d at 921; In re Estate of Smith, 543 So.2d 1155, 1161 (Miss. 1989).
¶28. To overcome the presumption of undue influence, the proponents must show (a) good faith on the part of the beneficiary, (b) the grantor’s full knowledge and deliberation of the consequences of her actions, and (c) the grantor’s independent consent and action. Mullins [v. Ratcliff], 515 So.2d [1183,] at 1193.
¶29. For many of the same reasons he found that the deed was a product of undue influence, the chancellor also found that Reid’s will was a product of undue influence. The attested will was an almost exact copy of the holographic will which Cupit helped Reid prepare. As discussed previously, the chancellor found that Cupit did not act in good faith in any part of his dealings with Reid. The chancellor also found that Reid did not receive independent counsel in the making of her will. We find that the attorney who prepared the will acted as a mere scrivener and that Reid did not receive independent counsel concerning her will. In re Estate of Moses, 227 So. 2d 829, 833 (Miss. 1969). We affirm the chancellor’s decision to set aside the will.
I commend the decision to your reading both as an object lesson in unethical, dishonest and rapacious conduct by an attorney, and as an exposition on the particular points of law in this case.
An interesting sidelight: two of the attorneys in the case have judicial experience. Current District 14 Circuit Court Judge Mike Taylor was one of the attorneys representing Pluskat. Former Mississippi Supreme Court Justice James Robertson was one of the attorneys representing Cupit.