Difficulties in Talking About Incompetence and Incapacity, Part I
August 25, 2014 § Leave a comment
[This is Part I of a paper by Attorney Tom Freeland, IV, of Oxford, presented at a seminar sponsored by the North Mississippi Rural Legal Services Elder Law Project, Jennie Kilgore, Director]
“In defining what must be shown to establish incompetence, ‘courts… have recognized that a firm definition of the grounds named within a statute is difficult to enunciate. Rather, the courts generally have prescribed the degree of acumen necessary to manage property, but left that determination to a factual analysis of the particular case…. ” Harvey v. Meador, 459 So.2d 288, 292 (Miss. 1984).
Introduction
The terms “incompetence” and “incapacity” must be understood in representing elderly clients, but yet their meaning seems just out of reach, or, as the Court stated in Harvey, “difficult to enunciate.”
The terms do not mean the same thing, as a legal matter, in different contexts. It is clear, for instance, that a person can be incompetent, justifying the appointment of a conservator, but yet be perfectly competent to make a will. See Lee v. Lee, 357 So.2d 713 (Miss. 1976) (so holding). But yet a person subject to a conservatorship, who can make a will during lucid intervals, cannot make a deed without court approval, whether lucid or not. In re Estate of Thomas, 853 So. 2d 134, 135 (Miss. Ct. App. 2003); see Miss. Code Ann. § 93-13-261 (statutory limitation on conveyance powers of person subject of a conservatorship).
These problems with definitions are exacerbated by the fact that legal professionals must also work with health care and social work professionals in providing services for these clients. It is a commonplace that doctors and lawyers have problems communicating about incapacity in the form of mental illness. The medical profession does not use the statutory terminology lawyers are required to use and often does not think in comparable terms. This paper will attempt to pin down, to the extent possible, the language lawyers are required to use in considering questions of competency and capacity, in hopes of making possible a discussion of how best to approach these issues when they arise with elderly clients.
These issues arise in a number of contexts in representing elderly clients, beginning with the routine memory issues due to aging through the effects of Alzheimer’s disease or dementia on memory and function, and include developmental disabilities that an older client has dealt with since childhood.
Competence / Incompetence and Incapacity
Black’s Law Dictionary’s negative definition is clearest
Incompetency. Lack of ability, legal qualification, or fitness to discharge the required duty. A relative term which may be employed as meaning disqualification, inability or incapacity and it can refer to lack of legal qualifications or fitness to discharge the required duty and to show want of physical or intellectual or moral fitness.
The key word in this definition is the word “relative.” Incompetency is best thought of relevant to the particular kind of incompetence: As noted, a person can be incompetent to manage their own business affairs but perfectly competent to make a will. Incompetence is used in the law in a lot of contexts, some having nothing to do with the kind of competence discussed here (for instance, the question of whether a witness is competent).
One particular way that the kind of incompetence is critical is that the test varies from very stringent (that is, requiring much more serious proof) to less depending on the legal context. The criminal context involves probably the most difficult burden to show incompetence in the area of competence to stand trial or the level of incompetence required for the insanity defense. This paper is limited to the civil context and will focus on four different versions of incompetence: incapacity at the level of non compos mentis (Latin meaning, literally, “not of sound mind”) involved in appointment of a guardian, “management competency” involved in appointment of a conservator, competence to make a will, and competence to make a power of attorney.
Another way the question of competence is “relative” is the different ways the word is used by different professionals and by the lay public.
Charting Relationships
August 20, 2014 § 4 Comments
It can be devilishly difficult to figure out relationships among people in your head, especially when your client says something like, “She was my double third cousin on my momma’s side, and she married my husband’s great-uncle’s niece after her first husband died.”
But it has to be done in estate work, property (especially partition), wrongful death, and in any case where you have to compute relationships within the third degree.
One super tool is the Nolan Chart of Relationships and Degrees of Kindred, which is reproduced below:
You can access a large-size .jpg file by clicking this link.
You will also find it at 51 So.2d 542.
Binding a Minor to a Settlement
August 14, 2014 § 4 Comments
Minors can not act for themselves. That creates some obstacles when a minor is injured in an accident, and the insurance company or some other paying party needs a signature on a release to settle the claim.
In Matter of Wilhite: Woolbright v. Wilhite, handed down September 10, 2013, by the COA, 18-year-old Lacey Wilhite had been severely injured in a catastrophic collision with a drunk driver. Her mother, Celeste Sloan, who had custody, filed a petition to be appointed guardian. Lacey’s father, Rodford, with whom Lacey had been living for several years before the accident, in response filed a petition to be appointed guardian and for custody.
The chancellor appointed Rodford as guardian, and authorized him to accept the insurance company’s tender of policy limits in the amount of $100,000. The judge also approved the contract of the attorney for Rodford for a 25% contingent fee. More about that attorney’s fee in a bit.
On appeal, Sloan’s lawyer argued that, even though her contract with Sloan had not been approved by the court, she had a reasonable expectation of compensation from the child’s estate, based on quantum meruit. The COA disagreed. Beginning at ¶11, Judge Fair explained:
Sloan may have been a “natural guardian” of Lacey under Mississippi Code Annotated section 93-13-1 (Rev. 2004), but the chancery court is the “superior guardian.” See Carpenter v. Berry, 58 So. 3d 1158, 1163 (¶19) (Miss. 2011). As the Mississippi Supreme Court detailed in Mississippi State Bar Association v. Moyo, 525 So. 2d 1289, 1293-96 (Miss. 1988), there are three ways to bind a minor in a settlement: (1) removal of the disability of minority, (2) the formal appointment of a guardian, and (3) the chancery court’s approval, without a guardianship, when the claim is worth $25,000 or less (Mississippi Code Annotated section 93-13-211 (Supp. 2012)). It stands to reason that a parent who has no authority to bind her daughter’s estate in a settlement cannot bind the estate to an attorney’s fee contract, particularly when such a contract would have to be, but was not, approved by the chancery court. See UCCR 6.12. In Carpenter, 58 So. 3d at 1163 (¶19) (citation omitted & emphasis added), the supreme court reiterated its longtime holding that:
Infants and persons of unsound mind are disabled under the law to act for themselves. Long ago it became the established rule for the court of chancery to act as the superior guardian for all persons under such disability. This inherent and traditional power and protective duty is made complete and irrefragable by the provisions of our present state constitution. It is not competent for the Legislature to abate the said powers and duties or for the said court to omit or neglect them. It is the inescapable duty of the said court and[/]or the chancellor to act with constant care and solicitude towards the preservation and protection of the rights of infants and persons non compos mentis. The court will take nothing as confessed against them; will make for them every valuable election; will rescue them from faithless guardians, designing strangers, and even from unnatural parents, and in general will and must take all necessary steps to conserve and protect the best interest of these wards of the court. The court will not and cannot permit the rights of an infant to be prejudiced by a waiver, or omission or neglect or design of a guardian, or of any other person, so far as within the power of the court to prevent or correct. All persons who deal with guardians or with courts in respect to the rights of infants are charged with the knowledge of the above principles, and act to the contrary thereof at their peril.
See also Union Chevrolet Co. v. Arrington, 162 Miss. 816, 826-27, 138 So. 593, 595 (1932) (original source) …
You can take away from that that there are no shortcuts in obtaining a release that is binding on a minor. You can either: (1) get the disabilities of minority removed, which you will likely find to be a hard sell; or (2) have a guardian appointed, who can petition the court to approve an on-the-record minor’s settlement; or (3) present the matter as a minor’s settlement not requiring a guardianship, if the settlement amount is below the statutory amount and the chancellor finds it to be in the child’s best interest. That’s it. The parents can not bind the child acting in their capacities as parents without court approval.
Another feature of this case is that both parents hired their own attorneys to take legal action for the benefit of Lacey before a guardianship was established, and neither had their contract approved in advance by the court. The trial court rejected Ms. Sloan’s attorney’s contract, which called for 33 1/3% of the settlement, and approved that of Mr. Wilhite for 25% The chancellor also reduced Sloan’s attorney’s quantum meruit claim to $2,500, despite that she claimed to have invested 125 hours in the case. The COA affirmed
You can read the COA’s rationale for yourself. What is important here is that you appreciate that when you go out on a limb without court approval in a case such as this, you run the risk of recovering nothing or a greatly reduced fee. UCCR 6.12 clearly lays out what is required. Here it is, broken down point by point for clarity:
- Every petition by a fiduciary or attorney for the allowance of attorney’s fees for services rendered shall set forth the same facts as required in Rule 6.11, touching his compensation, and if so, the nature and effect thereof.
- If the petition be for the allowance of fees for recovering damages for wrongful death or injury, or other claim due the estate, the petition shall show the total amount recovered, the nature and extent of the service rendered and expense incurred by the attorney, and the amount if any, offered in compromise before the attorney was employed in the matter.
- In such cases, the amount allowed as attorney’s fees will be fixed by the Chancellor at such sum as will be reasonable compensation for the service rendered and expense incurred without being bound by any contract made with any unauthorized persons.
- If the parties make an agreement for a contingent fee the contract or agreement of the fiduciary with the attorney must be approved by the Chancellor.
- Fees on structured settlements shall be based on the “present cash value” of the claim. [Emphasis added]
Before you go crashing off into a case involving a minor’s interest, think through what you are being called on to do, and cover your bases. If you don’t, you might find, much to your chagrin, that you have donated a lot of free work to the youngster.
Ravenstein: Sizzle or Fizzle?
July 21, 2014 § 7 Comments
I vote fizzle.
Last December I reported that the MSSC was asking for additional briefing in the case of Ravenstein v. Hawkins ” … addressing whether equal protection would be violated by an interpretation that child support may not be ordered for adult children who are mentally or physically incapable of self-support under Sections 93-5-23 and 93-11-65, given the mandate of Section 43-19-33 that a certain class of people may receive such support …”
To me, that signaled that the high court was preparing to address the troubling issue of parental duty to support adult disabled children. The last MSSC case to address the issue was Hays v. Alexander, in June, 2013, about which I posted here. Back then, I said this:
The MSSC yesterday ruled in Hays v. Alexander that there is nothing in the common law that would empower the court to create a duty in parents to support adult disabled children. The court said at ¶ 15: “The power to grant the authority to require parents in Mississippi to support their adult children is confided to a separate magistry: the Legislature. Our courts are without the constitutional power to declare otherwise.”
The court handed down its adjudication of Ravenstein last Thursday, and, the bottom line is that we are exactly where we were post-Hays v. Alexander.
John and Elisha Ravenstein were divorced from each other in 1998. In the divorce judgment, the chancellor ordered Mr. Ravenstein to pay lifetime child support for his handicapped son, Ryan. The chancellor found that it would be unjust for the child to become a ward of the state upon attaining age 21 when the parents had the financial ability to care for him. John filed a R59 motion, but never appealed.
When Ryan turned 20, his mother filed a petition asking to be appointed Ryan’s conservator. John counterclaimed that he should be appointed conservator, or that both parents be appointed co-conservators.
When Ryan turned 21, John stopped paying child support to Elisha or Ryan, and deposited the money into the registry of the court. He also filed a MRCP 60(b) motion asking the court to find that the 1998 judgment was void as a matter of law, since it improperly extended his child support obligation beyond Ryan’s 21st birthday.
The chancellor ruled in Elisha’s favor on the conservatorship. She also overruled John’s plea for R60 relief. John appealed.
The MSSC, by Justice Waller, affirmed the chancellor’s ruling on the R60 issue, the rationale for which is worth a read. The court reversed and remanded on the appointment of the conservator because the court applied the wrong legal standard.
On the issue of the application of the code sections cited above, the court said:
¶32. After a thorough review of the supplemental briefs filed by the parties and the State, we find that it is unnecessary to address this issue. We find that John waived his right to challenge his child-support obligation when he failed to appeal Chancellor Lutz’s 1998 judgment and waited thirteen years to attack it collaterally. We reach this conclusion without deciding whether Sections 93-5-23 and 93-11-65 of the Mississippi Code should be interpreted to allow for the provision of post-majority support for adult disabled children. The constitutionality of Section 43-19-33(3), which does not apply to the parties here, is not relevant to the disposition of this case. See Kron v. Van Cleave, 339 So. 2d 559, 563 (Miss. 1976) (“It is familiar learning that courts will not decide a constitutional question unless it is necessary to do so in order to decide the case.”).
Thus, when he failed to appeal in 1998, John waived his right of review and the court was deprived of authority to address the issue.
Justice King wrote a brilliantly-reasoned dissenting opinion making a strong case that our law in this area is unconstitutional as a denial of equal protection. If you ever have a case involving this issue, he has written your brief for you.
I think this is an issue that must be addressed eventually. Ravenstein, however, proved not to be the vehicle due to its peculiar procedural posture.
Maybe when the right case goes up Justice King will write the majority opinion.
New Procedures in Adult Guardianships and Conservatorships
July 10, 2014 § 1 Comment
SB 2240, which went into effect July 1, 2014, makes significant changes in the way we handle adult guardianships and conservatorships. You can access it at this link.
The purpose of this post is to alert you to it, and to recommend that you read and begin to apply it. In a future post, I’ll break it down further.
For now, here are some highlights from the new law:
- The law clarifies the distinction between a conservator and a guardian. A conservator now is a person appointed by a court to “administer the property of an adult, including a person appointed under Section 93-13-251, et seq.” A guardian under the new law is a person appointed by a court to “make decisions regarding the person of an adult, including a person appointed under Section 93-13-111 and Sections 93-13-121 through 93-13-135.”
- The new statute provides for “protective orders,” which are either emergency or permanent orders for management of a protected person’s property.
- It states that it provides the sole jurisdictional basis for courts of this state to appoint guardians or issue protective orders.
- It details jurisdictional and venue requirements for courts of this state to exercise jurisdiction.
- The new provision sets out elaborate procedures for courts of Mississippi to communicate with courts of foreign states in determining jurisdiction, acquiring testimony and other evidence, and in registration of judgments. It establishes procedures for transfer of guardianships between states.
- It creates a new Title 14, in Chapter 93. The law begins at § 93-14-101.
I can’t tell you categorically that this new law will be an improvement of the cobbled-together mishmash of provisions governing adult guardianships and conservatorships that we have now, because I have not fully digested it. I am willing to bet, however, that it will be a big help.
One improvement that this new law makes is in the area of interstate proceedings. Up to now there has been no way to transfer guardianships and conservatorships between states, and there has been no clarity in cases where elderly relatives are removed from one state and taken to another to set up fiduciary arrangements. This has been a significant problem in an age where it is more common for adult children to live in one state and the parents or elderly relatives live in another state and are in need of management.
Section 93-14-504(a) states that “This act applies to guardianship and protective proceedings begun on or after July 1, 2014.”
Some Language to Add to your Fiduciary Orders
June 17, 2014 § 7 Comments
In this district we have had a problem with fiduciaries having been appointed and never qualified by taking the oath and posting any required bond, and consequently not having Letters issued.
A fiduciary has no authority to act unless and until that person has qualified, which requires taking the oath, posting any required bond, and having Letters issued.
In one case in my court the person appointed used the order appointing him, without Letters of Administration ever having been issued, to sell a car, and he closed a couple of bank accounts. He sold the car and pocketed the money; who knows what he did with the funds. The lawyer who opened the estate spent a considerable sum out of his own pocket trying to recover the estate’s money. Not surprisingly, the perpetrator was judgment proof and can no longer be found on this planet.
In another case, a woman (not the mother) testified that she was guardian of the child, but when I ordered the insurance attorney to get the guardianship file, it showed that only an order appointing her had been entered, and she had never taken an oath or posted a required $10,000 bond. Incidentally, she testified that her lawyer had told her that the order was adequate, and she proceeded to use that apparent authority to negotiate a settlement of the child’s claim.
We came up with some language that we now require all attorneys to include in their orders opening estates, guardianships, and conservatorships. You may find this language useful in your own district, and even if you find it superfluous, you just might conclude that there’s no harm in including it.
Here it is:
IT IS FURTHER ORDERED AND ADJUDGED that if the fiduciary has failed to qualify by posting the required bond, if any, taking the oath, and having appropriate Letters issued as required by this order and the laws of the State of Mississippi within thirty (30) days of entry of this order, then the Chancery Clerk is hereby ordered and directed to notify the court immediately of such failure, and the court shall enter an order dismissing this civil action without prejudice and without further notice to the fiduciary, or attorney of record for the fiduciary, or any other parties who have entered an appearance in this civil action.
IT IS FURTHER ORDERED AND ADJUDGED THAT THIS ORDER DOES NOT AUTHORIZE [Name] TO ACT AS THE FIDUCIARY FOR [Name of ward or decedent] UNLESS VALID LETTERS [Testamentary, or of Administration, or of Guardianship, or of Conservatorship] ARE ATTACHED HERETO.
IT IS FURTHER ORDERED AND ADJUDGED that persons who use or accept this order without the attached Letters as court authority to act or conduct the affairs of the [ward or decedent] shall be subject to sanctions by this court.
Rejection and the GAL
May 8, 2014 § 3 Comments
Most of the guardians ad litem (GALs) with whom I talk react noticeably when the chancellor does not accept or follow their recommendations. Reactions range from mild puzzlement to indignation.
It has never been the rule in Mississippi that the chancellor is required to follow the GAL’s recommendations or accept the GAL’s conclusions. The rule that applies when the judge opts to go in a different direction was stated in the case of Floyd v. Floyd, 949 So. 2d 26, 29 (¶ 8) (Miss. 2007), which said:
This Court has held that a chancellor shall at least include a summary review of the recommendations of the guardian in the court’s findings of fact when the appointment of a guardian is required by law. S.N.C. v. J.R.D., Jr., 755 So. 2d [1077,] 1082 [(Miss. 2000)]. Furthermore, if the court rejects the recommendations of the guardian, the court’s findings must include its reasons for rejecting the guardian’s recommendations. Id. While a chancellor is in no way bound by a guardian’s recommendations, a summary of these recommendations in addition to his reasons for not adopting the recommendations is required in the chancellor’s findings of fact and conclusions of law. Id., Hensarling v. Hensarling, 824 So. 2d 583, 587 (Miss. 2002).
So, the requirements are that the judge’s ruling must include a summary review of the GAL’s recommendations, and must include its reasons for rejecting them.
In the MSSC case of Darnell v. Darnell, handed down April 24, 2014, the court held that the chancellor’s failure to follow the dictates of Floyd did not in and of itself warrant reversal, although the case was reversed on another ground. Here is how Justice Coleman’s opinion addressed the issue:
¶40. “The chancellor was in no way bound to follow the recommendation made by the [guardian ad litem].” Hensarling v. Hensarling, 824 So. 2d 583, 587 (¶ 10) (Miss. 2002). Under the Court’s standard of review, the Court does not find that the chancellor’s determination was manifestly wrong or that he abused his discretion.
In any case where a GAL is appointed to represent a child, the chancellor’s role as fact-finder requires the evidence presented by the GAL, as well as all other relevant evidence, to be considered and given such weight as the chancellor determines it deserves. Thus, the question to be answered by the Court is not . . . whether the chancellor ignored the GAL’s recommendation; but rather, whether the evidence in the record supports the chancellor’s decision.
Lorenz v. Strait, 987 So. 2d 427, 431 (¶ 16) (Miss. 2008) (internal citations omitted). In the case sub judice, the chancellor considered the guardian ad litem’s recommendations and conducted his own analysis of the Albright factors. The chancellor was the fact-finder, and his holding made clear the reasons for his decision. While it is the better practice for a chancellor to describe specifically why he or she disagrees with a guardian ad litem’s findings, the Court cannot find that the chancellor in the instant case abused his discretion in reaching the result he reached. Therefore, the issue is without merit.
In Darnell, the MSSC explained how the chancellor had done a thorough Albright analysis that addressed pertinent points of the GAL report. It found that the chancellor’s basis for not following the GAL report was clear in his Albright analysis.
I don’t see this case as pointing a new direction or changing the rules. What the court found here was that, although the chancellor did not expressly say why he was rejecting the GAL’s recommendations, his rationale was clear enough in his Albright findings so that the case did not require reversal on that point.
You should read this case for its analysis of the hearsay rule and its applicability in child sexual abuse cases. It’s particularly noteworthy for its exposition on the principle that hearsay may be introduced for purposes other than to prove the matter asserted.
Limitations on Guardianship Investments
April 7, 2014 § 4 Comments
Prudent investment and management of a ward’s assets is a fundamental duty of a guardian or conservator.
The task is complicated by the language of MCA 93-13-17, which states:
Every guardian, before he shall have authority to act, shall, unless security be dispensed with by will or writing or as hereinafter provided, enter into bond payable to the state, in such penalty and with such sureties as the court may require; . . . .
A guardian need not enter into bond, however, as to such part of the assets of the ward’s estate as may, pursuant to an order of the court in its discretion, be deposited in any one or more banking corporations, building and loan associations or savings and loan associations in this state so long as such deposits are fully insured, such deposits there to remain until the further order of the court, and a certified copy of the order for deposit having been furnished the depository or depositories and its receipt acknowledged.
MCA 91-13-1, et seq. set out the rules for fiduciary investments, including the types of investment instruments permitted and the manner of holding and trading such investments. No matter what the investment instrument, however, bond is required by 93-13-17, unless the money is deposited into a “fully insured” account at either (a) a banking corporation located in Mississippi; or (b) a building and loan association located in Mississippi; or (c) a savings and loan association located in Mississippi; AND the institution signs acknowledgment of receipt of the court order that no funds will be expended without court authorization.
That thicket of requirements is what Natalie Deason encountered when she tried to get chancery court authorization to invest the substantial settlement proceeds that her son, Blaine, received as a result of his father’s death in the Deepwater Horizon oil rig explosion. Natalie was appointed guardian, and she proposed to remove the guardianship to Louisiana, where she had moved, and to make certain investments of the funds without bond. The chancellor appointed a guardian ad litem for Blaine.
Following a hearing, the chancellor rejected both the request to take the guardianship out of Mississippi and the investment plan, and Natalie appealed.
On appeal, the MSSC affirmed March 27, 2014, in Guardianship of Roshto: Deason v. Stinson. You can read the court’s ruling on the removal issue for yourself, as well as Justice King’s cogent dissent. As for the investment issue, Justice Coleman wrote for the majority:
¶17. The chancellor determined that, because Natalie’s proposed investment plan would not limit the funds to being placed in FDIC insured accounts from which funds could not be withdrawn without a court order, Mississippi Code Section 93-13-17 required the guardian post a bond in the full amount of the guardianship funds. The chancellor noted, and the parties had conceded, that “such a bond would be extremely difficult to find and that the annual premium would be exorbitant.” Regarding the use of a structured settlement, the chancellor expressed concern that “the minimal savings on income taxes would be offset by the cost of the bond and by the loss of potential increased earnings when the interest rates rise.” As to the proposal to put half of the money into a trust account, the chancellor held that “[a]llowing the funds to be placed outside the control of the [c]ourt, without bond, would be an abuse of the authority of the [c]ourt and neglectful of the duty to the minor.” The chancellor ordered Natalie to deposit the funds in an FDIC insured bank account in the state of Mississippi and to “avail herself of the benefits of investing through the CDARS plan to maximize protection of Blaine’s assets and minimize her record keeping.”
¶18. Natalie asserts that the trial court erred in requiring that the entirety of Blaine’s settlement funds be placed into CDs. She argues that doing so violates both the reasonably prudent investor standard that governs fiduciaries [Fn 4 See MCA 91-13-3] and the duty of a guardian to improve a ward’s estate. [Fn 5 See MCA 93-13-38]. She claims that interest rates and other considerations related to investment in CDs effectively garner a negative return on the investment. She also argues that bond requirements for the investments should be waived because, if they are not, “[Section] 93-13-17 effectively prohibits a guardian from investing in any investment other than a fully insured bank account when a ward’s assets are substantial – because either the guardian could not obtain a bond, or could not afford one.” She asserts that such a requirement conflicts with the prudent investment statute.
¶19. The plain language of the guardianship statutes unequivocally requires a bond to be posted if the ward’s estate is placed in non-insured investments … While we understand the desire to diversify Blaine’s money and the difficulties surrounding obtaining such a large bond, the plain language of the statute simply tied the chancellor’s hands. The testimony was that, for such a large amount, CDARS was the only practical manner in which the statute could be complied with – the only way that the funds could be deemed placed in Mississippi institutions and be fully insured such that the guardian’s bond could be waived. Under Section 93-13-17, the chancellor had no option but to place the investment in a fully insured program such as CDARS, or to require that Natalie post a bond. Thus, the chancellor did not err in requiring that the entire settlement be put into CDARS.
¶20. The chancellor heard extensive testimony on all the investment options, asked questions regarding the proposed investment strategies, requested additional research on various investment strategies, and issued a lengthy and detailed judgment explaining her decision on the investment of the ward’s settlement. In her order, the chancellor noted the guardian ad litem’s “serious reservations” about the proposed investment of Blaine’s funds, such as “the fluctuating stability of the economy, the recent failures of large investment companies . . . , the historically low interest rates [that] would affect the return on investment rate of any structured annuity, and the requirement that the guardianship assets be bonded for moneys not held in FDIC insured accounts.” The chancellor cited the court’s “duty to wards under its protection to ensure the proper management of the ward’s estate,” and it was evident throughout the proceedings that her primary concern was Blaine’s best interest. The record is clear that the chancellor very carefully considered all the options and made lengthy, detailed, and thorough findings of fact and conclusions of law. Even had the statute not tied the chancellor ’s hands, we would not find an abuse of discretion under such a circumstance.
CDARS is the Certificate of Deposit Account Registry Service, described earlier in the court’s opinion this way:
Through CDARS, someone with large sums of money can deposit and manage CDs through only one bank. That bank distributes the money among other banks for placement in CDs, ensuring that less than $250,000 goes to each bank. The depositor works only with the “base” bank, but his entire sum of money is FDIC insured because it is properly distributed among various financial institutions.
From time to time, lawyers present me with an investment plan that would in all likelihood benefit the ward over the long run. No matter how favorable the terms, however, we are bound by the restrictions of the statutes.
No Appeal from an “Interim” Judgment
March 25, 2014 § Leave a comment
Frank Lewis is a name you might recall from a previous post. I posted about his case in a post entitled Guardian or Conservator?, back in 2011. Mr. Lewis was the indoividual for whom an adult guardianship was established in chancery court, and the COA reversed for failure to comply in all respects with the statute vis a vis joinder of relatives. The case was remanded for further proceedings to cure the defects and then to determine the need for a guardianship.
Mr. Lewis died, however, during the pendency of the appeal, which was not taken into account by the COA opinion, although a suggestion of death had been filed. His death, however, did not end the family- controversy-riddled matter.
The executor of Lewis’s estate filed a petition with the trial court to recover all of the attorney’s fees that had been paid out by the guardianship, totalling some $15,000, since the guardianship had been reversed on appeal. The attorneys against whom the petition was filed responded with a counterclaim under the Litigation Accountability Act (LAA) asking for attorney’s fees incurred in defending the executor’s action.
The chancellor ruled that the guardianship had, indeed, been necessary to tend to Mr. Lewis’s business. All parties then agreed that the court’s ruling rendered the executor’s claim for recovery of attorney’s fees moot.
That left the LAA counterclaim. The chancellor deferred a decision on the LAA to determine whether the executor’s action had been frivolous, and to consider proof of the actual damages incurred in defending it. He set the hearing for a future date.
The executor asked for an interlocutory appeal, and the court granted a recess to allow the parties to discuss it, without any result of record.
Several days later, the chancellor entered a two-page judgment entitled “Interim Judgment,” adjudicating the necessity of the guardianship and ruling the executor’s claims moot, but not adjudicating the LAA counterclaim. On the face of the Interim Judgment, the words “THIS IS A FINAL JUDGMENT” had been stricken through in ink [Note: The court in that district requires the stricken language to appear on the face of all final judgments].
The executor (referred to by the COA as “Junior”) appealed. In the case of Estate of Frank Lewis: Lewis v. Harvey and Logan, handed down March 18, 2014, the COA found that it lacked jurisdiction on familiar grounds. Judge Maxwell wrote for the court:
¶13. We employ a de novo standard in reviewing jurisdictional issues. R.A.S. v. S.S., 66 So. 3d 1257, 1259 (¶10) (Miss. Ct. App. 2011) (citing Calvert v. Griggs, 992 So. 2d 627, 631 (¶9) (Miss. 2008)). Although not raised by either party, we must examine the finality of a judgment on our own initiative. Id. (citing M.W.F. v. D.D.F., 926 So. 2d 897, 899 (¶4) (Miss. 2006)).
¶14. “As a general rule, only final judgments are appealable.” Maurer v. Boyd, 111 So. 3d 690, 693 (¶11) (Miss. Ct. App. 2013). See also Miss. Code Ann. § 9-3-9 (Rev. 2002); Miss. Code Ann. § 11-51-3 (Rev. 2012); M.R.A.P. 5. “A final, appealable judgment is one that ‘adjudicates the merits of the controversy [and] settles all issues as to all the parties’ and requires no further action by the trial court.” Maurer, 111 So. 3d at 693 (¶11) (quoting Walters v. Walters, 956 So. 2d 1050, 1053 (¶8) (Miss. Ct. App. 2007)). “When all the issues in a case or claims against all the parties are not resolved in a judgment, no appeal of right can be taken.” Thompson v. True Temper Sports, Inc., 74 So. 3d 936, 938 (¶6) (Miss. Ct. App. 2011) (quoting Williams v. Bud Wilson’s Mobile Home Serv., 887 So. 2d 830, 832 (¶5) (Miss. Ct. App. 2004)).
¶15. It really cannot be argued that an order labeled “Interim Judgment” is a final, appealable judgment—particularly when the language “THIS IS A FINAL JUDGMENT” has been scratched out and initialed by the judge, and the judge has apparently not ruled on a pending issue. While there are exceptions to the final-judgment rule—including obtaining permission to pursue an interlocutory appeal under Mississippi Rule of Appellate Procedure 5 or appealing from a Mississippi Rule of Civil Procedure 54(b)-certified final judgment—none are applicable here. [Foontnote omitted]
¶16. Because there is no record evidence that the issue of attorneys’ fees incurred defending Junior’s allegedly frivolous petition was ever resolved, the “Interim Judgment” is not final and appealable. So we must dismiss for lack of jurisdiction.
Nothing really earth-shattering here. It’s just a different spin on a theme we’ve visited fairly frequently over the past couple of years: that a judgment disposing of fewer than all of the issues is not a final, appealable judgment.
Nobody asked me, but I’m going to offer my view that if the document had been styled merely “Judgment,” and the words “THIS IS A FINAL JUDGMENT” had not been stricken, the same result would apply. And that’s so even if the chancellor had given the green light for an interlocutory appeal. All of that is so because the order entered disposed of fewer than all of the pending issues, and the court did not make any specific findings as to why there was no just reason for delay in entry of a judgment, as required by R54(b). You might see it differently.
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