Inadequate Remedy at Law

October 11, 2016 § 1 Comment

After ten years had elapsed, during which multiple building permits expired, and deadlines were extended again and again, and Michael Gaffney still had not completed construction of a house, the City of Richland filed suit in Chancery Court for an injunction requiring him either to complete construction within a specific time, or, failing which, to demolish and remove the structure. The city also sought attorney’s fees.

There were several proceedings, in which Gaffney appeared pro se, that resulted in some progress, and further inspections, resulting in an order that the house be completed by a date certain. When Gaffney failed to do so, the chancellor found him in contempt and authorized the city to demolish the structure. The city was awarded $8,232.82 in attorney’s fees. Gaffney appealed.

Now, before we go any further, I have to say that if I had heard the case I would likely have done pretty much the same as the chancellor did here. Why not? Injunctive relief is appropriate in chancery. I am sure the pleadings said all of the proper things about irreparable injury, public interest, and inadequate remedy at law. I am sure that no one involved, either attorney or layperson, raised any legal issue or authority that might question the authority of the court to act. And act it did.

So, the case was affirmed, right? Well, no. The COA reversed. In Gaffney v. City of Richland, decided October 4, 2016, the court held that the city should have followed MCA 21-19-11(1), which requires the municipality’s governing authorities to conduct a hearing when a complaint is filed by a majority of residents within 400 feet of a property alleged to be unhealthy or unsafe. From that determination, appeal lies to Circuit Court, per MCA 11-51-75. Chancery Court is nowhere in that loop. Judge Lee, writing for the majority, expounded:

 ¶23. Although the chancery court’s jurisdiction encompasses relief sought through injunction, issuance of an injunction is an extraordinary relief requiring first a showing of “imminent threat of irreparable harm for which there is no adequate remedy at law.” Heidkamper v. Odom, 880 So. 2d 362, 365 (¶11) (Miss. Ct. App. 2004). When a statutory scheme exists concerning review of an agency or board’s decision, an adequate remedy at law exists, precluding the issuance of injunctive relief. A-1 Pallet Co. v. City of Jackson, 40 So. 3d 563, 569 (¶22) (Miss. 2010).

This case highlights a reason why many chancellors, I included, are skeptical when we are called upon for injunctive relief. Too often, especially in the case of TRO’s, they are brought in haste with breathless claims of imminent disaster if immediate relief is not granted. Haste, as they say, makes waste. I’m not saying that is what happened here. But it is clear that the lawyers convinced the chancellor that there was no adequate remedy at law when, in actual fact, there certainly was.

Remember that most chancellors do not have a research army standing at the ready to parse through the legal threads of your pleadings. Judges rely on you and your representations. You can plant fatal error in your own record by sending the judge off on a tangent that a little legal research and diligence on your part would have avoided.

Judge Reeves on HB 1523

July 11, 2016 § 2 Comments

You may find it useful in your family practice to have a copy of U.S. District Judge Carlton W. Reeves’s opinion in Barber, et al. v. Bryant, et al., handed down June 30, 2016. Here is a link to it.

This is the suit that asked for an injunction against enforcement or of HB 1523, also colloquially known as the “Religious Freedom Bill,” that in essence left it to individual conscience and judgment whether to follow the law. It was to have gone into effect July 1, 2016, by its terms. Judge Reeves’s ruling is that it is unconstitutional, and, therefore, unenforceable. His conclusion paragraph states:

Religious freedom was one of the building blocks of this great nation, and after the nation  was torn apart, the guarantee of equal protection under law was used to stitch it back together. But HB 1523 does not honor that tradition of religion freedom, nor does it respect the equal  dignity of all of Mississippi’s citizens. It must be enjoined.

As of this writing, it is unclear whether the governor, attorney general, or other defendants will appeal, or who would bear that expense, but it seems unlikely, in my opinion, that the Fifth Circuit would overturn the ruling.

[Update: Since this was written, Gov. Bryant has announced that he intends to appeal.]

… And More on Pitfalls of TRO’s …

February 11, 2015 § Leave a comment

Adding to the thoughts about TRO’s from Monday …

Chancellor David Clark rendered an opinion in a case in which he had granted a TRO without notice, but concluded at the full hearing that it was unfounded. Here is an excerpt from his opinion on the defendant’s motion for sanctions:

The dismissal of a complaint, whether by the Court or by the plaintiff, operates as a dissolution of any injunction issued thereunder. It also establishes the fact that it was wrongfully sued out and that the defendant is entitled to recover whatever damages he sustained by the issuing of the same. Warner’s Griffith, Mississippi Chancery Practice (Rev. Ed.), §463, citing Johnson v Howard, 141 So. 573 (Miss. 1932), and Day v McCandless, 142 So. 486 (Miss. 1932).

Rule 65(c), Mississippi Rules of Civil Procedure, provides:

(c) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs, damages, and reasonable attorney’s fees as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained; provided, however, no such security shall be required of the State of Mississippi or of an officer or agency thereof, and provided further, in the discretion of the court, security may not be required in domestic relations actions. The provisions of Rule 65.1 apply to a surety upon a bond or undertaking under this rule. (Emphasis added)

In Broome v Hattiesburg Building and Trades Council, 206 So.2d 184 (Miss. 1967), the Court held that: . . . [I]t has become well settled in this state that in suits upon injunction bonds no recovery may be had against principal or sureties in excess of the penalty of the bond. Broome, 206 So.2d, 188.

Further, as noted in 42 Am Jur 2d, Injunctions, §359: It is the well-established general rule that there is no liability in tort for the damages caused by the wrongful suing out of an injunction, unless the circumstances give rise to a cause of action for malicious prosecution. . . On the other hand, the statutes of the majority of the states require an injunction bond, under which the principal and surety may be liable for damages if the injunction is wrongful or is dissolved.

Also, see 43A C.J.S., Injunctions, §314: Under statutes so providing, damages may be awarded where occasioned by the wrongful entry of an injunction, and liability may be fixed by the bond the complainant is required to give as a condition to the granting of the injunction, as discussed infra §315. Apart from such statutory liability, since the seeking of injunctive relief is not a tort, in the absence of a bond or security there may be no recovery of damages for the issuance of an injunction, even though it may have been granted without just cause; and recovery may not be had unless the person enjoined can make out a case of malicious prosecution by showing malice and want of probable cause on the part of the person who obtained the injunction.

The bottom line is this: (1) The Chancellor has the discretion, but is not required, under MRCP 65(c) to waive the requirement of bond in domestic relations actions1; (2) If the Chancellor, in the exercise of that discretion, waives the requirement of bond, the defendant is precluded from thereafter recovering damages of and from the plaintiff for the wrongful suing out of the TRO; (3) unless the defendant can make out a case of malicious prosecution by showing malice and want of probable cause on the part of the person who obtained the injunction.

In this action, since the requirement of bond was waived by the Chancellor issuing the TRO, the defendant is precluded from recovering her damages in this action. However, this does not prevent her from filing an action in tort. Therefore, the Amended Motion of the Defendant for Sanctions will be, and the same is hereby denied and dismissed.

Based on that authority, I think that the idea of a bond in domestic TRO’s without notice is something that should move from the rear of the judge’s mind to the forefront. It’s a way of establishing some balance in the situation, because we are being asked to grant immediate relief without giving the other side any opportunity to be heard. The bond requirement can discourage less-than-meritorious filings while at the same time providing insurance that the defendant will not be out attorney’s fees and costs if the case is dismissed. In other words: you can proceed with this if you really believe it will stand up, but there will be something at stake if it does not.

Of course, the chancellor can always exercise discretion to waive bond in exigent cases.

I am not aware of any cases under the Litigation Accountability Act or MRCP 11 involving dismissed TRO’s. If anyone knows of any decisions, please let us know. There should be no impediment to proceeding under either authority, as far as I know.

Finally, here are some sage observations that Judge Clark added on the subject of TRO’s without notice:

My experience has taught me that the granting of a TRO without notice only exacerbates the tension and strife between the parties, and between their counsels. I understand that. If I were at home on a Saturday watching a game on TV and a deputy Sheriff knocked on my door and told me I have to move out of my house, immediately, and allow the deputy to take my son to his mother, all without notice to me, I would be upset; I would be convinced that “the fix is in.” I have found that I can better deal with the issues if both parties are present before the Court. If I can look both parties in the eye and explain to the husband, for instance, why I feel he needs to move out of this house and why I think the children should go with their mother, he at least has had an opportunity to participate and to have his say. He may disagree with the ruling but he has not been denied his right to participate; his due process rights. In almost every case wherein I have been asked for a TRO without notice, I subsequently find at a hearing with both parties present that the factual situation has been exaggerated and distorted. Your experience may be different and I would not presume to indicate otherwise. I am only suggesting that we, as Chancellors, should be wary of TRO’s without notice. I think that is what Rule 65 requires.

A Few Thoughts about TRO’s

February 9, 2015 § 3 Comments

Before you read any farther, please go back and read this previous post about TRO’s that Work.

It seems that lawyers seeking injunctive relief via temporary restraining orders (TRO’s) is becoming a more frequent phenomenon in chancery court. The scenarios are varied, but the common thread is that the party seeking a TRO under MRCP 65 wants something pre-emptive done right now.

The most problematical TRO is the one issued without notice. It’s problematical primarily because it requires the judge to issue an order that restrains the other party without the opportunity to be heard. In case you’ve forgotten since law school, that right to be heard is not only a maxim of equity, but it is also commonly referred to as “due process,” as guaranteed in the Fifth Amendment to the US Constitution, a right generally regarded as the cornerstone of our justice system.

So here are a few thoughts:

  • Judges don’t like TRO’s without notice. They go against the grain of just about everything our court system stands for. That does not mean that in the necessitous circumstance the judge will not grant it. It means rather that you can expect scrutiny, skepticism, and close questioning from the chancellor. Why can notice not be given to the party, or, in the case of pending litigation, to counsel opposite?
  • Simply pleading that this is an emergency situation does not elevate your case to the standard required by MRCP 65.
  • Your complaint must either be sworn to by the party with actual knowledge or include an affidavit of such a person. Specific facts must be stated. General conclusions, labels, supposition, speculation, and hearsay will not do the job.
  • The complaint must describe what irreparable injury will result if the relief is not granted before the other side can be heard in opposition.
  • The attorney must present a separate certificate stating the efforts, if any, that he or she has made to give notice to the other side, and reasons why advance notice should not be given.
  • If you lack any of the required essentials of R65, your request will be rejected.

Asking for TRO relief is one of those things that can take a toll on your reputation with the court. Unfounded or unsuccessful TRO attempts sound like crying wolf, and can undermine your credibility with your judge. If you have to file for R65 relief, particularly without notice, make sure the claim has merit, warrants action without notice, and will bear up under cross-examination at the full hearing.

When is Temporary Relief Available in Family Law Cases?

June 18, 2014 § 5 Comments

I have heard it said that chancery courts routinely grant temporary relief in any matters pending before them. Is that so? And in what matters is temporary relief available?

Let’s look at family law.

Anyone who has done any Mississippi family law knows that temporary relief is available in divorce cases. The authority of the chancery court to grant temporary relief in a divorce proceeding is found in MCA 93-5-17(2), which provides:

The chancellor in vacation may, upon reasonable notice, hear complaints for temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.

Divorce is a creature of statute unknown in the common law; therefore, any relief obtainable in a divorce must have its source in a statute. Since this statute is part of the title dealing with divorce, and is a subsection of the statute that requires divorce hearings to be held in open court, I am confident in saying that this particular statute is not authority to grant temporary relief outside the context of a divorce.

Likewise, in cases of determination of parentage, MCA 93-11-65(10) creates a remedy:

Upon motion of a party requesting temporary child support pending a determination of parentage, temporary support shall be ordered if there is clear and convincing evidence of paternity on the basis of genetic testing or other evidence, unless the court makes written findings of fact on the record that the award of temporary support would be unjust or inappropriate in a particular case.

Notice that the latter statute does not not include custody among the relief provided. The COA has held that both natural parents have an equal right to custody of the child, regardless whether parentage has been finally determined. So, on the one hand, it would appear in a custody dispute between parents in a parentage case that the tug-of-war between them must continue unabated by temporary custody because there is no provision in the statute for temporary custody. The conundrum is exacerbated by the simple fact that support is customarily (always?) paid to the parent with custody, which is certainly logical, because we have to know where the child will be in order to know where to direct the support. If the court has no statutory authority to award custody in such a case, how can the court award child support?

It could be that the chancellor may simply order extra-statutory temporary relief in a given case based on equitable principles. In the parentage case, for example, the court could award temporary custody in order to get to the statutorily permissible temporary support award.

But would such an order stand? After all, we know that there is no appeal of right from a temporary or interlocutory order.

I think the distinction may lie in the nature of the review. If the merits of the order are attacked, then I think the appeal fails. If the power of the court to grant the temporary relief is attacked, then I think the appeal would have merit. An example of the latter is Martin v. Falcon, #2013-IA-1985-SCT (December 5, 2013), in which Justice Coleman vacated a temporary order granting grandparent visitation.

Is there even a right to a temporary hearing in a grandparent visitation case? I would argue in the negative, for two reasons: (1) the grandparent visitation statute has no provision whatsoever for temporary relief, and like divorce and parentage, it is a creature solely of statute; and (2) to grant temporary relief is to presume on the ultimate issue that the petitioner is entitled to such relief, which is not always so.

Of course, temporary relief is expressly available in injuntions, per MRCP 65, in the form of a TRO. A TRO does require the existence of an emergency or danger of irreparable harm if no relief is immediately granted. And the domestic violence statutes incorporate such relief.

Custody modification cases and third-party custody cases are somewhat more problematical. There are statutes dealing with custody, and its award and forms, but they do not specifically mention temporary relief. In this district, we do not allow temporary relief in a child-custody-modification case unless there is an emergency or it is clearly necessary to protect the best interest of a child until a final determination may be made. To do otherwise would peremptorily adjudicate the ultimate issue in the case.

When the chancellor acts in an emergency or other exigent situation to protect the child, her actions are based on Article 6, § 159 of the Mississippi Constitution, which gives chancery courts “full jurisdiction” over “All matters in equity,” and “Minor’s business.” Custody has long been recognized as being under the mantle of chancery jurisdiction, and, indeed, our cases speak in terms of the chancellor being the “superior guardian” and protector of the child’s best interest. I think as between the apparent form required by statute and the chancellor’s determination that action must be taken for the best interest of a child, the court will and should go with the best interest every time.

I would reconcile all of the foregoing by saying that I believe that, in the absence of exigent circumstances requiring immediate intervention the court should avoid temporary relief unless there is a statutory provision or rule expressly providing that relief. Your chancellor may see it differently, based on an entirely different rationale, but that is the way I view it.

This post addresses temporary relief in family law matters. Temporary relief in the many other types of cases within chancery jurisdiction is the subject of another post.


Thanks to Attorney George S. Whitten of Greenwood for supplying some of the material for this post.

Maxims: The Legal Chance to be Heard

October 22, 2013 § 1 Comment

“No one should be condemned without a legal chance to be heard.”

This concept is so fundamental to our notions of due process that it almost goes without saying. Judge griffith expounded on it this way:

This maxim is so clearly founded in natural justice that even savages would understand it, and every decent modern government observes it as an indispensible principle of constitutional right. A decree rendered in its absence is utterly void, as it ought to be. A decree in personam cannot be rendered without a personal appearance or without personal notice sereved within the territorial limits of the state, and a decree bearing upon personal property situated within the state but owned by a non-resident is not valid unless by some reasonable method to be prescribed by law the defendant is given notice by constructive process, such as notice by publication. Griffith, § 48, p. 50.

The MRCP modified process to allow personal service outside the boundaries of the state.

The principle is found consistently in our jurisprudence. If there is no personal jurisdiction, if there is no notice, the court may not act.

The one exception is MRCP 65 pertaining to temporary restraining orders (TRO) without notice. These are not favored, however, unless the circumstances are of such an emergency and exigent nature that relief must be granted immediately. Even in such cases, however, the TRO may be dissolved upon motion of the enjoined party on only two days’ notice, and in no event may extend by the initial order for more than ten days.


September 22, 2010 § 1 Comment

There are two types of  temporary restraining orders (TRO’s):  The ones that work and the ones that fail.  Since your client is paying you to get a TRO that works, you might want to read on about how to be successful in getting this relief.

A TRO usually arises where the plaintiff claims he is entitled to more extensive injunctive relief, but needs immediate intervention of the court to prevent irreparable injury until the full claim for injunction can be heard. A TRO is, simply put, a temporary injunction issued in exceptional circumstances without notice to the opposing party or his attorney, to expire no later than ten days after its entry by the court.  It is intended to be an action to hold the parties in place until the court can have a full hearing on more comprehensive, extended injunctive relief.   

The procedure to obtain a TRO is set out in Rule 65, MRCP.  Everything you need to know about a successful TRO is there.  So pause a moment here and Read Rule 65 all the way through.  It’s not long and will take you no more than four and one-quarter minutes.  I’ll wait.  <humming to myself; checking my e-mail>

Okay, now that you’ve read the rule do you see now why you were turned down the last time you tried to get a TRO?  Yep, I thought so.

The rule is clear that if you want an injunction issued without notice, you must present a pleading to the court that meets the following requirements:

  1. It must recite specific facts by affidavit or verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the opposing party or his attorney may be heard in opposition; and
  2. The applicant’s attorney certfies in writing what efforts, if any, have been made to give notice, and reasons why notice should not be required.

Some scenarios that will fail:

  • You file the complaint on behalf of your client.  The rule requires a verified complaint or affidavit, either of which would be required to be on personal knowledge of the underlying facts by the person seeking the relief.
  • The complaint includes only conclusory statements and no facts.  The rule requires “specific facts” that support the relief sought. 
  • The harm that plaintiff seeks to avoid will likely occur in 30 days, and there is no explanation why notice for a hearing can not be given within that time.

Some judges require the personal appearance of the plaintiff or affiant to testify as to the facts set out in the complaint or affidavit.  I take the position that, since the application is required to be verified or supported by affidavit, testimony in person is not required at this stage; the only inquiry by the court is whether the application meets the requirements of the rule. 

When the TRO is entered, it is endorsed with the date and hour of issuance and is entered of record “forthwith.”  The order must define the injury and why it is adjudged to be irreparable, and state why it was granted without notice.  The order includes on its face the expiration date.

A TRO is effective for not longer than ten days, except in domestic relations cases to which the ten-day limitation does not apply.  The court may “for good cause” extend the effective date of the TRO “for a like period.”  That means that if the original TRO were effective for 5 days, the court may extend it another five, and a TRO originally effective for 10 days could be extended for 10 more days.  The court may also extend the TRO if the party against whom the order is entered consents to the extension.  In any extension, the reasons for the extension must be stated in the order. 

The TRO must state in reasonable detail, and not by mere reference to the pleadings, the act or acts sought to be restrained.  It is binding only upon the parties to the action and their officers, agents, servants, employees and attorneys, “and upon those persons acting in concert or participation with them who receive actual notice of the order by personal service or otherwise.”  

When the TRO is entered, a hearing date and time is set for a hearing on the preliminary injunction.  Scheduling of the hearing takes precedence over all other matters except “older matters of the same character.” 

At hearing, the party who obtained the order proceeds first, and if the proponent fails to appear, the court shall dissolve the TRO.

The party against whom the order is issued may appear and request dissolution of the TRO or modification on two days’ notice to the obtaining party, or on such shorter notice as the court may prescribe.  In such event, the court will hear the motion “as expeditiously as the ends of justice require.”

Except in domestice relations cases, a  TRO or preliminary injunction may issue only on giving of security by the applicant in the amount that the court may direct, for the payment of costs, damages and reasonable attorney’s fees that may be suffered by any party later deemed to have been wrongfully restrained.  No security is required of the State of Mississippi or its officers or agencies, and the court may waive security in a domestic relations case.  In all cases where security is required, the provisions of Rule 65.1, MRCP, apply.

The order issuing the injunction must set forth the reasons for its issuance and describe in detail the act or actions sought to be restrained.  It is binding only upon the parties to the action and their officers, agents, servants, employees and attorneys, “and upon those persons acting in concert or participation with them who receive actual notice of the order by personal service or otherwise.”

In the case of both a TRO and an injunction, if a reasonable person can not ascertain from the four corners of the document exactly what conduct is enjoined, the order should be set aside on appeal.

Practice Tip:  Before you file an application for a TRO, read Rule 65 carefully.  The requirements are technical and precise, and you will not succeed in having your TRO issued if you do not comply with the express requirements of the rule.  Include in your pleading for a TRO a request for a preliminary injunction; otherwise, the other party may simply let your 10-day relief expire, and you will be back at the starting line.

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