June 24, 2019 § Leave a comment
Jhonte Wiggins received $350,000 in a personal-injury settlement. Almost all of the money wound up in accounts of his fiancé, Chasity Anderson. Jhonte became seriously ill and died. His mother, Darnice Wiggins, was appointed administratrix of her son’s estate, and, as administratrix, Darnice sued Chasity for conversion. The chancellor granted summary judgment, and Chasity appealed claiming that chancery court lacked subject matter jurisdiction.
The COA affirmed in Anderson v. Wiggins, decided May 14, 2019. Here is how Judge Greenlee’s opinion addressed the issue:
¶8. Anderson argues that chancery court was not the proper court in which to file a claim for conversion. She asserts that the court lacked subject-matter jurisdiction over the claim. “The question of subject matter jurisdiction is an issue of law to which this Court must apply a de novo standard of review.” In re Adoption of J.D.S., 953 So. 2d 1133, 1136 (¶11) (Miss. Ct. App. 2007).
¶9. Our State’s Constitution limits chancery-court jurisdiction:
The chancery court shall have full jurisdiction in the following matters and
(a) All matters in equity;
(b) Divorce and alimony;
(c) Matters testamentary and of administration;
(d) Minor’s business;
(e) Cases of idiocy, lunacy, and persons of unsound mind;
(f) All cases of which the said court had jurisdiction under the laws in
force when this Constitution is put in operation.
Miss. Const. art. 6, § 159.
¶10. The matter before us is a conversion claim. “Although property of which conversion is alleged is in the custody of a chancery court,” Georgia-Pac. Corp. v. Blakeney, 353 So. 2d 769, 772 (Miss. 1978) (quoting 18 Am. Jur. 2d Conversion § 135 (1955)), an action for conversion alone is best heard in the circuit court. But if “there is one issue of exclusive equity cognizance, that issue can bring the entire case within subject matter jurisdiction of the chancery court and that court may proceed to adjudicate all legal issues as well.” Newton v. Brown, 198 So. 3d 1284, 1288 (¶20) (Miss. Ct. App. 2016) (internal quotation marks omitted).
¶11. Wiggins’s complaint only asserts a claim for conversion. She does not indicate any other tort or any other claim for the chancery court to consider. She asserts that the protection of the estate’s assets entitles her to jurisdiction within the chancery court. She contends that Anderson cannot now claim a lack of subject-matter jurisdiction because the chancery court already rendered its decision. But jurisdictional challenges may be raised at any point during litigation, as well as on appeal. Pierce v. Pierce, 132 So. 3d 553, 560 (¶14) (Miss. 2014). Mississippi Rule of Civil Procedure Rule 12(h)(3) provides that “[w]henever it appears by suggestion that the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action or transfer the action to the court of proper jurisdiction.” Additionally, our state constitution determines the ability of appellate courts to reverse a judgment of a chancery court when it lacks jurisdiction:
No judgment or decree in any chancery or circuit court rendered in a civil cause shall be reversed or annulled on the ground of want of jurisdiction to render said judgment or decree, from any error or mistake as to whether the cause in which it was rendered was of equity or common-law jurisdiction; but if the Supreme Court shall find error in the proceedings other than as to jurisdiction, and it shall be necessary to remand the case, the Supreme Court may remand it to that court which, in its opinion, can best determine the controversy.
Miss. Const. art 6, § 147.
¶12. At the summary-judgment hearing, the chancery court discussed the jurisdictional concerns and found that it had jurisdiction over the claim. Specifically, it found that under Wiggins v. Perry, 989 So. 2d 419, 430 (¶28) (Miss. Ct. App. 2008), Anderson could not complain about subject-matter jurisdiction after the court ruled on the motion for summary judgment.
¶13. In that case, Wiggins did not raise the issue of subject-matter jurisdiction until after the chancery court granted summary judgment. Therefore, on appeal, our court was unable to reverse the case on the issue of subject-matter jurisdiction alone. Id. at 430-31 (¶28). We ultimately reversed the decision on other grounds and remanded the case with instructions that it be transferred to the proper court. Id. at 433 (¶47).
¶14. In the present case, the chancery court held:
Now, [the Mississippi Constitution] says a lot. And our case law says even more. In one case . . . it is stated that: “Because a party did not raise the issue of subject matter jurisdiction until after summary judgment had been granted in favor of the adverse party, the reviewing court could only reverse for lack of subject matter jurisdiction where there was also some other trial court error warranting reversal.”
The chancery court found that subject-matter jurisdiction was never an issue before the motion for summary judgment. In her answer to the conversion complaint, Anderson asserted lack of subject-matter jurisdiction as an affirmative defense. But at no point thereafter did she actively pursue that defense. In fact, she never filed any motion based on those grounds. As in Wiggins, without some other error, precedent prevents us from reversing this case on
the issue of subject-matter jurisdiction alone in this situation. [Fn 1]
[Fn 1] 3 Jeffrey Jackson, Mary Miller, and Donald Campbell, Encyclopedia of Mississippi Law § 19:188 (2d ed. 2018) (“Ordinarily, a court of appeals could reverse for lack of subject matter jurisdiction in the trial court even where the parties may not have raised the issue. Section 147 of the Mississippi Constitution provides that the supreme court is without power to reverse where the only error found is ‘want of jurisdiction to render said judgment or
decree, from any error or mistake as to whether the cause . . . was of equity or common-law jurisdiction.’”); James W. Shelton, Miss. Chancery Prac. § 2:7 (2018) (“[T]he Constitution prohibits the Supreme Court from reversing a case where the only error is that the case was brought in chancery court when it should have been brought in circuit court, or vice versa.”); c.f. Waits v. Black Bayou Drainage Dist., 186 Miss. 270, 185 So. 577, 578 (1939) (“Section 147 of the Constitution has no application. It provides that no cause shall be reversed by the Supreme Court on the ground alone of a mistake in the trial court as to whether it is of law or equity jurisdiction. The trouble here is that neither the chancery court nor the circuit court had jurisdiction of this cause, as we will undertake to demonstrate. In the case of Indianola Compress & Storage Co. v. Southern R.R. Co., 110 Miss. 602, 70 So. 703, [704 (Miss. 1916),] [s]ection 147 of the Constitution applied for it was not a question of jurisdiction, but a mistake in jurisdiction.”).
I posted about a circuit judge reforming a deed on June 5, 2019.
June 10, 2019 § Leave a comment
Sandra Oliver was a party in chancery court hearings involving probate of her grandmother’s estate and partition of her real property. The chancellor’s ruling on the merits were not to her liking, and she appealed pro se.
One of the issues she raised on appeal was that the chancellor should have recused herself because she was biased against her and her father. In Estate of Oliver: Oliver v. Oliver and Carney, decided April 16, 2019, the COA affirmed. The portion of Judge Carlton’s opinion addressing the issue is longer than I usually quote, but I think you will find it helpful:
¶103. Sandra asserts that her and her father’s due process rights were violated at hearings before Chancellor Daniels that took place in both the partition and estate matters due to the chancellor’s alleged bias against her. We find Sandra’s contentions without merit. ¶104. The supreme court has recognized that “[t]his Court presumes that a judge, sworn to administer impartial justice, is qualified and unbiased. For a party to overcome the presumption, the party must produce evidence of a reasonable doubt about the validity of the presumption.” Kinney v. S. Miss. Planning & Dev. Dist. Inc., 202 So. 3d 187, 194 (¶20) (Miss. 2016) (internal quotation marks and citations omitted). Continuing, the supreme court explained that “[r]easonable doubt may be found when there is a question of whether a reasonable person, knowing all of the circumstances, would harbor doubts about the judge’s impartiality. Said another way, the presumption is overcome only by showing beyond a reasonable doubt that the judge was biased or unqualified.” Id.; see Washington Mut. Fin. Grp. LLC v. Blackmon, 925 So. 2d 780, 785 (¶12) (Miss. 2004) (recognizing the “heavy burden” a movant bears in proving that a judge’s purported hostility requires recusal).
¶105. Sandra contends that the chancellor displayed “biased actions” in the partition action at the February 2, 2015 hearing on Sandra’s motion to controvert, the Carneys’ motion in limine to exclude testimony or evidence relating to any claim that Sandra may have due to the actions of J.C., and issues relevant to that motion raised in Sandra’s pro se motion to correct facts. Sandra was represented by counsel at that hearing. In her brief, Sandra refers to this hearing as a “non-hearing,” and contends that the chancellor showed bias because she did not allow presentation of evidence or testimony. We disagree.
¶106. At the beginning of the hearing, the chancellor observed that Sandra had “explain[ed] her whole case” in her pro se motion to correct facts. The chancellor then stated on the record that she had “read the entire [court] file and not just the motions that are noticed for hearing today . . . [and that she] under[stood] very thoroughly what the issues [were and] the issues that [Sandra tried] to raise . . . .” The chancellor then heard argument of counsel at length, and discussed numerous points of law with counsel. In our review of the hearing transcript, we find no indication that the chancellor displayed bias in any way at the February 2, 2015 hearing.
¶107. Regarding subsequent hearings before Chancellor Daniels, Sandra states in her brief that after the February 2, 2015 “non-hearing,” she “filed a formal complaint with the judicial committee against Judge Daniels based on all of the biased actions, reactions, denial of a hearing and presenting of any testimony as well as remarks made at the February 2nd, 2015 hearing.” Sandra’s judicial performance complaint against Chancellor Daniels was filed in June 2016, at least three months before the September 27, 2016 final partition hearing before Chancellor Daniels, and five months before the November 14, 2016 hearing in the estate action, also before Chancellor Daniels. On appeal, Sandra claims that her filing of the judicial performance complaint against Chancellor Daniels in June 2016 is a basis for requiring Chancellor Daniels’s recusal at these subsequent hearings.
¶108. As to this argument, we observe that Sandra did not object or file a motion in either the partition or estate action asking Chancellor Daniels to recuse. Sandra’s argument about Chancellor Daniels’s alleged bias was not raised until her appeal, which procedurally bars her from arguing the issue in this case. Tubwell v. Grant, 760 So. 2d 687, 689 (¶8) (Miss. 2000). As the supreme court recognized in Tubwell:
Over the years, this Court has been quick to point out that it will not allow a party to take his chances with a judge about whom he knows of [alleged] grounds for recusal and then, after he loses, file his motion. Where the party knew of the grounds for the motion or with the exercise of reasonable diligence may have discovered those grounds, and where that party does not move timely prior to trial, the point will be deemed waived. Id.
As a result of her untimely objection, Sandra has waived this issue. See also Latham v. Latham, 261 So. 3d 1110, 1113 (¶¶9-11) (Miss. 2019) (holding that appellant waived recusal argument on appeal where he knew the ground for June 2016. In Adams, 249 So. 3d at 467-68 (¶¶15-21), Elle Adams made the same argument, asserting that the chancellor in that case should have recused herself because Elle had filed a state bar complaint and federal action against the chancellor. We rejected Elle’s argument,
finding that the chancellor’s awareness of the federal action against her, and the pending state bar complaint, did not require recusal where there was “no evidence that the chancellor’s impartiality might be reasonably questioned.” Id. at 468 (¶21). We find that the same analysis applies in this case.
¶111. Sandra quotes from the September 27, 2016 final partition hearing as an example of the chancellor’s “grudge” against her. But in this excerpt the chancellor, at most, is expressing frustration with the parties’ inability to reach an agreement on any detail, including what half of the property they wanted (“I was hoping y’all could at least agree on one thing, but obviously y’all cannot agree on whether the sun is shining outside or not.”). Our review of the transcript from the September 27, 2016 hearing shows no bias warranting recusal.
¶112. Similarly, Sandra quotes snippets of exchanges from the November 14, 2016 hearing in the estate case that she claims demonstrates the chancellor’s alleged animosity towards her. These include exchanges such as the chancellor telling Sandra that “[i]f you have a problem with my ruling, appeal it[;]” and the chancellor’s admonishment to Sandra to “be careful[,]” stated in the context of Sandra representing herself. These statements, particularly when read in context, are nowhere near the “combative, antagonistic, discourteous, and adversarial” conduct that would lead a reasonable person to conclude that Sandra did not receive a fair hearing. Cf. Schmidt v. Bermudez, 5 So. 3d 1064, 1074 (¶¶19-21) (Miss. 2009) (finding that a chancellor’s “abusive and inappropriate conduct,” including, but not limited to, repeatedly questioning a party’s honesty, badgering that party during cross-examination regarding evidence to be presented in her own case, and accusing the party of “diarrhea of
the mouth” violated party’s substantive right to a fair trial). Sandra also quotes an exchange in which the chancellor refused to let Sandra testify about ad valorem tax issues—but, as the chancellor explained in the next line of the transcript (not included in Sandra’s snippet), this was because Sandra was trying to raise issues already ruled upon at the final partition hearing. Nothing in that exchange suggests a lack of impartiality in any way.
¶113. In short, our review of the September 27, 2016 and November 14, 2016 hearing transcripts does not reveal any exchange between Sandra and the chancellor that suggests any hostility, lack of impartiality, or ill will on the chancellor’s part so as to result in a “manifest miscarriage of justice” in this case. We reject this assignment of error.
Some comments tomorrow.
May 28, 2019 § Leave a comment
Sometimes you want or need to argue that you should be granted R59 relief because this is a court of equity, and a new trial or rehearing, or new judgment are needed to do equity. The other side argues the rigid language of R59 and says the court can’t go beyond that.
In the case of Pevey v. Pevey, 2017-CA-01144-COA, 2018 WL 4089685 (August 28, 2018), an opinion yet unpublished in the Southern Reporter, Judge Fair (a former chancellor) of the COA wrote this in the unanimous opinion:
¶5. The chancery court’s authority to modify the final judgment is “limited” by Rule 59, and it is a “higher” standard than under Rule 54(b), which allows a trial court to set aside interlocutory decisions for any reason it sees just. [ Maness v. K & A Enters. of Miss. LLC, No. 2017-CA-00173, ––– So.3d ––––, ––––, 2018 WL 3791250, at *12 (¶ 68) (Miss. Aug. 9, 2018) Id. at –––– (¶¶ 69, 71), 2018 WL 3791250, at *13 (¶¶ 69, 71). Still, Rule 59 permits a chancery court substantial discretion to reconsider its decisions—either on the motion of a party, or sua sponte “for any reason for which it might have granted a new trial on motion of a party.” See M.R.C.P. 59(d). When a case has been tried to the court, Rule 59(a) expressly provides that a new trial may be granted “for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.” “The ground rules [for a Rule 59 motion in chancery court] include those that preexisted the Civil Rules regarding the grant or denial of trial court rehearings.” Mayoza v. Mayoza, 526 So.2d 547, 549-50 (Miss. 1988). In In re Enlargement of Corporate Limits of Hattiesburg, 588 So.2d 814, 828 (Miss.1991), the supreme court explained that “[i]n equity, the chancellor has always had entire control of his orders and decrees and authority to modify or vacate any of them on motion of any party, or on his own, prior to final judgment.” While the chancellor’s order may have been styled a final judgment, it was rendered non-final by Dallas’s filing of the motion to reconsider. See Wilson v. Mallett, 28 So.3d 669, 670 (¶ 3) (Miss. Ct. App. 2009). “It is long-settled that when a final judgment is reopened [under Rule 59,] the judgment remains subject to the control of the court until the motion is disposed of and, until that time, does not become final.” E.E.O.C. v. United Ass’n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of the U.S. & Canada, Local No. 120, 235 F.3d 244, 250 (6th Cir. 2000).
¶6. To grant the motion under Rule 59, the chancery court need only be “convinced that a mistake of law or fact has been made, or that injustice would attend allowing the judgment to stand.” See Maness, ––– So.3d at –––– (¶ 69), 2018 WL 3791250, at *13 (¶ 69) (Maxwell, J., specially concurring) (quoting McNeese v. McNeese, 119 So.3d 264, 272 (¶ 20) (Miss. 2013) ). This is an independent basis for granting the motion, distinct from the court’s authority to order a new trial on the presentation of newly discovered evidence. Id. “When hearing a motion under Rule 59(e), a trial court proceeds de novo, if not ab initio. Recognizing that to err is human, Rule 59(e) provides the trial court the proverbial chance to correct its own error to the end that we may pretermit the occasion for a less than divine appellate reaction.” Bruce v. Bruce, 587 So.2d 898, 904 (Miss. 1991). A Rule 59 motion is the “functional equivalent” of a motion for rehearing on appeal. King v. King, 556 So.2d 716, 722 (Miss. 1990).
¶7. Although Rule 59(a) refers to a “new trial,” when a case was tried to the court, the formality of a full retrial is not required. Under Rule 59(a), the chancellor “may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.” Id.
¶ 8. Motions under Rule 59 should be distinguished from motions under Rule 60(b), which seek “extraordinary relief” from a judgment that is truly final. Rule 60(b) motions are for “extraordinary and compelling circumstances” and “should be denied when they are merely an attempt to relitigate the case.” S. Healthcare Servs. Inc. v. Lloyd’s of London, 110 So.3d 735, 742 (¶ 14) (Miss. 2013). “[T]he trial court has considerably broader discretionary authority under Rule 59(e) to grant relief than it does under Rule 60(b).” King, 556 So.2d at 722.
A previous post with a citation to Pevey is at this link. The Warner v. Thomas case at that link actually cites Pevey, despite the fact that it is unpublished in the Southern Reporter. I think the best practice is always to point out that the case you are citing is unpublished in the Southern Reporter, but you can also point out that it has been cited in other published decisions if it has. Another strategy is simply to use the authority cited in the unpublished case.
I think that a regrettable by-product of the MRCP has been a pharisaical tendency toward rigid application of the rules in chancery, losing sight that chancellors bring knowledge, wisdom, judgment, and a sense of fairness to bear. When you take that away from the judge and pen her in a rule cage with no room to maneuver, you might as well do away with the judge and simply look in the rule book for the answer.
May 8, 2019 § Leave a comment
“Juries render verdicts; judges render judgments.” — Lawrence Primeaux
You can quote me on that.
It happens every now and then that someone moves for a directed verdict in a chancery court bench trial. That can create a problem because the standard for directing a verdict is considerably different from that for an involuntary dismissal.
The distinction was at issue in the COA’s case of Vermillion v. Vermillion, decided March 19, 2019. In that case, the chancellor granted the defendants’ (Robyn’s and Douglas’s) motion for a directed verdict and dismissed the plaintiff’s (Angela’s) pleading seeking grandparent visitation rights. Judge Carlton wrote for the court:
¶10. Angela argues that the chancellor erred in granting Robyn and Douglas’s motion for a directed verdict. Angela asserts that because the case was tried without a jury, Robyn and Douglas should have filed a motion for involuntary dismissal, rather than a motion for a directed verdict. Angela also argues that the chancellor applied an erroneous interpretation of Mississippi Code Annotated section 93-16-3(2)–(3) (Rev. 2013); specifically, whether Angela established a viable relationship with Chella Rose.
¶11. We first address Angela’s procedural issue. Mississippi Rule of Civil Procedure 41(b), which governs involuntary dismissals, “applies in actions tried by the court without a jury, where the judge is also the fact-finder.” All Types Truck Sales Inc. v. Carter & Mullings Inc., 178 So. 3d 755, 758 (¶13) (Miss. Ct. App. 2012) (internal quotation marks omitted). “Mississippi Rule of Civil Procedure 50(a), which governs directed verdicts, applies to jury trials, where the judge is not the fact-finder.” Id. at (¶12) (emphasis omitted). We recognize that “the appropriate motion in a case tried without a jury is not a motion for directed verdict, but for involuntary dismissal . . . .” Gulfport-Biloxi Reg’l Airport Auth. v. Montclair Travel Agency Inc., 937 So. 2d 1000, 1004 (¶13) (Miss. Ct. App. 2006). In similar cases, rather than reversing a trial court’s judgment granting a directed verdict due to a procedural error, this Court has considered such appeals under the standard of review for a motion for involuntary dismissal. Id. at 1006 (¶18); Ladner v. Stone County, 938 So. 2d 270, 273 (¶¶9-10) (Miss. Ct. App. 2006). We will therefore review the judgment at issue before us under the standard of review for Rule 41(b) involuntary dismissals.
¶12. In applying this standard, we recognize that “[a]ppellate courts . . . employ a more deferential standard of review when considering involuntary dismissals [at a bench trial] than when reviewing grants of directed verdicts” at a jury trial. All Types Truck Sales, 178 So. 3d at 758 (¶13). Rule 41(b) involuntary dismissals are reviewed under a “substantial evidence/manifest-error standard,” rather than the de novo standard applied when reviewing directed verdicts. Id. “A judge should grant a motion for involuntary dismissal if, after viewing the evidence fairly, rather than in the light most favorable to the plaintiff, the judge would find for the defendant.” Id. (quoting Gulfport-Biloxi Reg’l Airport Auth., 937 So. 2d at 1004 (¶13)). “The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff’s evidence were all the evidence offered in the case.” Id.
The court went on to analyze the evidence and the judge’s ruling and found no error in the dismissal despite the wrong standard.
This case illustrates how you can hand your opponent a ground for appeal simply by using incorrect terminology. Save your directed verdicts for jury trials. That’s where they belong. Bench trials call for a motion for involuntary dismissal per MRCP 41(b) at the conclusion of the plaintiff’s case.
May 7, 2019 § 2 Comments
After the trial court denied her petition for modification of custody, Joni Warner filed something she called a Motion for Reconsideration. As I have posted here before, there is no such thing as a motion for reconsideration under the MRCP, and the use of that term poses a challenge not only to the trial court that is called upon to rule on it, but also to the reviewing court that is called upon to figure out the legal standard by which to assess the trial court’s ruling.
In Warner v. Thomas, decided March 19, 2019, the COA affirmed the trial court and fleshed out the confusion that is reconsideration. Judge McDonald wrote for a unanimous court:
A. Motion for Reconsideration
¶27. After the trial court denied the petition for modification, Warner filed a motion for reconsideration, making substantially the same arguments she made in her Petition but adding that the evidence merited a finding under section 93-5-24(9) that Thomas had a “history of perpetuating family violence” and should not enjoy joint custody. Under the Rules of Civil Procedure, the motion for reconsideration technically no longer exists. See Maness v. K&A Enters. of Miss. LLC, 250 So. 3d 402, 419 (¶68) (Miss. 2018) (Maxwell, J., specially concurring and joined by four other justices). Warner’s motion to reconsider could be construed as a Rule 60(b)(3) motion because Warner claimed in her motion for a new trial under Rule 59 that she had located a witness who could provide testimony about the basketball incident. However, under Rule 60(b)(3), it must also be alleged and shown that the newly discovered evidence could not have been discovered by due diligence. “[N]ew evidence is ‘evidence in existence of which a party was excusably ignorant, discovered after trial.’” Dean v. Slade, 164 So. 3d 468, 473 (¶14) (Miss. Ct. App. 2014) (quoting Page v. Siemens Energy & Automation Inc., 728 So. 2d 1075, 1079 (¶12) (Miss. 1998)). Warner’s motion was silent about the identity of the witness and the content of that witness’s testimony. More importantly, the motion is silent about why Warner could not have found the witness earlier. She acknowledges in her brief that she only sought an impartial witness to the basketball incident after the trial court had ruled that no such witness had testified. Warner should have anticipated the need for such a witness and only acted when the trial court noted her lack of evidence. Without a showing that the new evidence was substantive and a good reason why Warner was ignorant of it prior to the August hearing, the trial court properly denied Warner’s post-trial motions under Rule 60(b)(3).
B. Motion for New Trial
¶28. With respect to the trial court’s ruling under Rule 59, we have stated that the chancery court’s authority to modify the final judgment is “limited” by Rule 59, and it is a “higher” standard than under Rule 54(b), which allows a trial court to set aside interlocutory decisions for any reason it sees just. Dissolution of Pevey v. Pevey, 2017-CA-01144-COA, 2018 WL 4089685, at *1 (¶5) (Miss. Ct. App. Aug. 28, 2018); Maness, 250 So. 3d at 419 (¶¶69, 71). A party may only obtain relief on a motion for new trial upon showing: (1) an intervening change in controlling law, (2) availability of new evidence not previously available, or (3) the need to correct a clear error of law or to prevent manifest injustice. Miller v. Smith, 229 So. 3d 148, 154-55 (¶28) (Miss. Ct. App. 2016). To grant the motion under Rule 59, the chancery court need only be “convinced that a mistake of law or fact has been made, or that injustice would attend allowing the judgment to stand.” See Pevey, 2018 WL 4089685, at *2 (¶6); Maness, 250 So. 3d at 419 (¶69).
¶29. The appellate court reviews a trial court’s denial of a motion for a new trial for abuse of discretion. Miller, 229 So. 3d at 154 (¶27); McLaughlin., 249 So. 3d at 1084 (¶8). In the “Order Denying the Motion for Reconsideration” the trial court made specific factual findings on the proof Warner provided to show that Thomas did not have a “history of perpetrating family violence.” It found that the “Domestic Abuse and Protective Orders” and Warner’s testimony about Thomas’s slapping the child was countered by Thomas and his mother’s testimony. It found that there was no serious injury caused and this single incident did not constitute a “history of perpetrating violence” to trigger a presumption against continuing joint custody between the parties. We find that the trial court applied the proper legal analysis in determining that there was no basis for a new trial, and thus it did not abuse its discretion. See Lee v. Lee, 154 So. 3d 904, 909 (¶¶25-26) (Miss. Ct. App. 2014).
May 1, 2019 § Leave a comment
Last month I posted about the long-standing practice in Mississippi to allow the prevailing party an attorney’s fee equal to one-half of that awarded at trial. You can read that post at this link.
Mentioned in the previous post is the MSSC’s decision in Latham v. Latham, decided January 17, 2019, which makes it mandatory to file an MRAP 27(a) motion to seek that award. I thought it would be helpful to provide that portion of the opinion here:
¶21. The chancellor ordered Roger to pay $2,500 in attorneys’ fees as part of the contempt judgment. Buried at the conclusion of Michele’s brief is a one sentence request that the Court award her one-half of the attorneys’ fees that had been awarded by the chancellor. Specifically, without any citation of authority and without any citation of the record, she writes, “Further, Appellee requests to be awarded one-half of the attorney’s fees awarded by the trial court, or twelve hundred and fifty dollars ($1,250).”
¶22. When a prevailing party requests attorneys’ fees on appeal, “[t]ypically, th[e] Court awards attorney fees on appeal in an amount equal to half the amount awarded at trial.” Huseth v. Huseth, 135 So. 3d 846, 861 (¶ 47) (Miss. 2014). Because such an award may not be fair and equitable in all cases, the Court has written that the “better practice” would be for a party seeking attorneys’ fees on appeal “to file a motion in th[e] Court, supported by affidavits and time records that establish the actual fees expended on appeal.” Hatfield v. Deer Haven Homeowners Ass’n, Inc., 234 So. 3d 1269, 1277 (¶ 30) (Miss. 2017).
¶23. While the Court has declared that the better practice would be for a party seeking attorneys’ fees on appeal to file a motion in the Court, we now clarify that Rule 27(a) of the Mississippi Rules of Appellate Procedure requires it. Here, Michele did not file a motion requesting attorneys’ fees on appeal; rather she buried a one sentence request in her brief. Such requests do not comport with the Mississippi Rules of Appellate Procedure. Rule 27(a) provides, in pertinent part,
(a) Content of Motions; Response. Unless another form is elsewhere prescribed by these rules, an application for an order or other relief shall be made by filing a motion for such order or relief with proof of service on all other parties. The motion shall contain or be accompanied by any matter required by a specific provision of these rules governing such a motion, shall state with particularity the grounds on which it is based, and shall set forth the order or relief sought. If a motion is supported by briefs, affidavits, or other papers, they shall be served and filed with the motion.
M.R.A.P. 27 (emphasis added).
¶24. Because Michele failed to make a viable request for relief under Rule 27, we decline to consider her request. While the Court has suggested that the better practice for a party seeking attorneys’ fees on appeal is to file a motion pursuant to Rule 27(a), we hold that, henceforth, such requests must comply with Rule 27(a).
In the Brown v. Hewlett case cited in my previous post, COA Judge Jack Wilson added that, ” Any such motion should be filed before the mandate issues.”
April 16, 2019 § Leave a comment
Dotie Jackson was unsuccessful in his attempt to modify custody. The chancellor found that he had failed to prove a material change in circumstances that would impact the child and warrant further analysis of the three-prong test for modification. He appealed.
In the March 19, 2019, case of Jackson v. Jackson, the COA affirmed the chancellor’s ruling. One issue Dotie raised was that the chancellor had erred in not making specific findings. Judge Greenlee’s opinion for the unanimous court addressed the point:
¶15. Dotie argues this matter should be reversed and remanded for the chancellor to make specific findings that there was no material change in circumstances which adversely affected the children. He also argues specific findings under an Albright [Fn omitted] analysis are required.
¶16. Under both the Mississippi Rules of Civil Procedure and the Uniform Chancery Court Rules, the chancellor is not obligated to provide specific findings of fact unless a party requests that she do so. See Smith v. Smith, 97 So. 3d 43, 46, 48 (¶¶7,16) (Miss. 2012) (citing Johnson v. Gray, 859 So. 2d 1006, 1012 (¶31) (Miss. 2003)). Dotie did not make such a request. And we have specifically acknowledged that this rule applies in child-custody cases. Blevins v. Bardwell, 784 So. 2d 166, 174-75 (¶¶30-31) (Miss. 2001).
¶17. But here, the chancellor did make findings of fact that are clearly set forth in her bench ruling. The chancellor definitively concluded:
[T]he Court finds and agrees with the guardian ad litem . . . with regard to the children . . . . [J]ust as [the] guardian ad litem, I have conducted an analysis based upon information made available to me. And it is my opinion that there has been no substantial material change in the home of Lori Beth Duperier [Jackson] that would warrant further consideration of the three-prong test for custody modification.
A careful reading of the chancellor’s bench ruling reveals the facts on which she based her ruling.
[T]he parties are really blessed. They have two beautiful young children, and they are healthy, and they are doing well. Both parents are healthy, financially stable . . . and they live a good life.
. . . .
[T]he mother contacted the professionals, and they did what they are required to do. They are to report situations where . . . they’re concerned that there is some type of abuse.
The chancellor noted that the investigation concerning the abuse allegations “was handled quickly.” She further stated:
I believe and I found credible the mother’s testimony that once the allegations were dismissed that she saw no need for the counseling. The guardian ad litem
testified the children were doing well. They [are] happy. They are healthy. They love both parents. Probably as the children see it, they did not skip a beat on their relationships with both parents. From my description, they are involved. They love both parents.
Thus, the chancellor found the allegations against Dotie did not alter the children’s relationships with either Dotie or Lori Beth. As earlier discussed, we found no error in the chancellor’s finding there was no material change in circumstances that adversely affected the children. And in absence of such a finding, the chancellor was not required to make specific findings under the Albright factors. Anderson[v. Anderson], 961 So. 2d  at 58 (¶6) [(Miss. Ct. App. 2007)]. Reversal and remand is not warranted in this instance.
- There is plenty of case law that the Chancellor is required to make specific findings on the Albright factors. No motion is required to trigger that particular duty.
- BUT if the chancellor finds no material change or adverse effect, then the chancellor is not required to analyze the case under Albright, so the duty of specific Albright findings does not come into play.
- If you want specific findings for matters such as material change, which unlike Albright are not required findings, you must make a motion per UCCR 4.01 and bring it to the attention of the court. The rule states:
In all actions where it is required [e.g., Albright] or requested [by a motion made according to this rule], pursuant to MRCP 52, the Chancellor shall find the facts specially and state separately his conclusions of law thereon. The request must be made either in writing, filed among the papers in the action, or dictated to the Court Reporter for record and called to the attention of the Chancellor.
April 8, 2019 § Leave a comment
MRCP 59 allows the chancellor to grant a new trial as to all or some issues in a case “for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.”
When granted, the chancellor may open the judgment “if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.”
The COA discussed the scope of a R59 ruling in its March 19, 2019, ruling in Warner v. Thomas. Judge McDonald wrote for the unanimous court:
¶28. With respect to the trial court’s ruling under Rule 59, we have stated that the chancery court’s authority to modify the final judgment is “limited” by Rule 59, and it is a “higher” standard than under Rule 54(b), which allows a trial court to set aside interlocutory decisions for any reason it sees just. Dissolution of Pevey v. Pevey, 2017-CA-01144-COA, 2018 WL 4089685, at *1 (¶5) (Miss. Ct. App. Aug. 28, 2018); Maness [v. K&A Enters. of Miss. LLC], 250 So. 3d  at 419 (¶¶69, 71) [(Miss. 2018)]. A party may only obtain relief on a motion for new trial upon showing: (1) an intervening change in controlling law, (2) availability of new evidence not previously available, or (3) the need to correct a clear error of law or to prevent manifest injustice. Miller v. Smith, 229 So. 3d 148, 154-55 (¶28) (Miss. Ct. App. 2016). To grant the motion under Rule 59, the chancery court need only be “convinced that a mistake of law or fact has been made, or that injustice would attend allowing the judgment to stand.” See Pevey, 2018 WL 4089685, at *2 (¶6); Maness, 250 So. 3d at 419 (¶69).
¶29. The appellate court reviews a trial court’s denial of a motion for a new trial for abuse of discretion. Miller, 229 So. 3d at 154 (¶27); McLaughlin [v. N. Drew Freight, Inc.], 249 So. 3d  at 1084 (¶8) [(Miss Ct. App. 2018)] . . .
The portion of R54 referred to above reads this way:
(b) . . . any order or other form of decision, however designated, which adjudicates fewer than all of the claims[,] or rights and liabilities of fewer than all the parties[,] shall not terminate the action as to any of the claims or parties[,] and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
So an R59 motion requires more than just asking the judge for a do-over. You have to have evidence or law that would have changed the outcome were it known at the time of hearing, and it was not known either because the law changed or evidence previously unknown after due diligence has come to light. You may also prevail by convincing the judge that she made a mistake of law or fact, or that the judgment creates an injustice; good luck with that.
The COA casts the issue thus: “Did the trial court err in denying the motion for reconsideration and/or motion for new trial [My emphasis]. The term “reconsideration” has been linked to R59 so often that, in my opinion, it has risen from the level of colloquialism to the point that we should seriously consider inserting it into the rule. Lawyers almost unanimously refer to the motion as one for “reconsideration.” The COA, as it did in this case, frequently uses that nomenclature for the motion. I have not searched carefully, but I believe the MSSC did also in a decision handed down last year. You can search the term in my Search box above and see how I have pushed against it. Even the Advisory Committee Notes point out that there is no such thing as a motion for consideration. Yet, the beat goes on. Maybe it’s just time to add it in and live with it.
April 3, 2019 § Leave a comment
It’s becoming more and more common that contested divorce trials are bifurcated so that the grounds are tried separately from the issues of equitable distribution, alimony, etc. Under this practice, the grounds are tried first. If no divorce is granted, that’s the end of that. If, on the other hand, the court finds that the grounds are proven, then the court retains jurisdiction to determine property division and other such issues at a later date. The advantages are manifold, chiefly that one does not have to invest the time and money to develop evidence relating to property unless and until a divorce is granted.
That’s what was done in the divorce case of Mary and Glen Montgomery. The court bifurcated the case, and a hearing was held on the grounds for divorce. Following the hearing, the chancellor found that Glen had proven HCIT, and granted the divorce. The judge did commence a hearing on the remaining issues, which involved property only, but the hearing could not be concluded, and it was recessed to a date four months later. The court entered a judgment on the day of the hearing granting Glen the divorce and stating that “Matters of equitable division [would] be addressed in a later judgment.” The judgment also recited that “This is a final judgment on the grounds for divorce only. The Court hereby reserves jurisdiction …” over all of the remaining financial issues. Mary, who had represented herself in the proceedings, filed a timely pro se appeal.
In Montgomery v. Montgomery, decided March 5, 2019, the COA dismissed the appeal for lack of jurisdiction. Judge Jack Wilson wrote for the court:
¶5. A fuller recitation of the facts of the case is unnecessary because we lack jurisdiction. See Walters v. Walters, 956 So. 2d 1050, 1051 (¶2) (Miss. Ct. App. 2007). “Though the issue has not been raised by the parties, this Court is required to note its own lack of jurisdiction.” Id. at 1053 (¶8). “Generally, only final judgments are appealable.” Id. (quoting M.W.F. v. D.D.F., 926 So. 2d 897, 899 (¶4) (Miss. 2006)). “A final, appealable, judgment is one that ‘adjudicates the merits of the controversy[,] . . . settles all issues as to all the parties[,]’ and requires no further action by the lower court.” Id. (brackets omitted) (quoting Banks v. City Finance Co., 825 So. 2d 642, 645 (¶9) (Miss. 2002)).
¶6. “A judgment granting a fault-based divorce is a non-final order if issues attendant to the fault-based divorce, such as property division, remain before the lower court.” Id. at (¶9). That is precisely the situation here. The chancery court’s judgment granting a divorce expressly stated that the court reserved jurisdiction to divide the marital estate and resolve all other financial matters related to the divorce. Therefore, the judgment granting a divorce “was not a final judgment from which an appeal could be taken.” Id.; accord, e.g., M.W.F. v. D.D.F., 926 So. 2d 897, 898-900 (¶¶3-6) (Miss. 2006) (holding that a “judgment of divorce” granting a divorce was not final because it did not resolve issues of property
division, alimony, child custody, and child support); Ory v. Ory, 936 So. 2d 405, 408 (¶3) & n.1 (Miss. Ct. App. 2006) (explaining that a “judgment of divorce” was not final because the chancery court reserved the division of the marital assets for a later date). The judgment granting a divorce was not final even though it was labeled as a “final” judgment. Walters, 956 So. 2d at 1052-54 (¶¶5-7, 9, 11-12) (holding that a “Final Judgment of Divorce” was not a final, appealable judgment because the equitable division of the marital estate remained pending before the chancery court). Whether a judgment is “final” is a matter of substance, not form. See M.R.C.P. 54(b).
¶7. Rule 54(b) of the Mississippi Rules of Civil Procedure provides one exception to the rule that only final judgments are appealable. See Walters, 956 So. 2d at 1053 (¶10). Under Rule 54(b), “the [trial] court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment.” M.R.C.P. 54(b). However, the trial court’s “expressed determination that there is no just reason for delay” must be stated “in a definite, unmistakable manner.” Id., advisory committee notes. In other words, the trial court must expressly “certify” that the
interlocutory ruling should be deemed final and “released for appeal.” Jennings v. McCelleis, 987 So. 2d 1041, 1043 (¶6) (Miss. Ct. App. 2008) (quoting Indiana Lumbermen’s Mut. Ins. Co. v. Curtis Mathes Mfg. Co., 456 So. 2d 750, 753 (Miss. 1984)).
¶8. In this case, the trial judge did not make such an express certification. Indeed, the judge did not make any statement to the effect that there was “no just reason for delay” of an appeal. M.R.C.P. 54(b). To the contrary, the judgment granting Glen a divorce expressly stated that the equitable division of the marital estate would be “addressed . . . in a later judgment.” The judgment further stated that the court reserved jurisdiction to address that issue and all other financial matters. Moreover, the court even gave the parties a date for the second day of trial. Therefore, Rule 54(b)’s exception to the final judgment rule does not apply. See Walters, 956 So. 2d at 1052-54 (¶¶5-14) (holding that Rule 54(b) did not apply in the absence of an expressed determination by the trial court that there was no just reason for delay—even though the trial judge stated orally and in a written judgment that he intended to allow an immediate appeal from a “Final Judgment of Divorce”).
¶9. Because the chancery court has not entered a final, appealable judgment in this case, this Court lacks jurisdiction, and this appeal must be dismissed.
Nothing more to add. Keep this in mind the next time you try a bifurcated case.
March 20, 2019 § 2 Comments
If you will type “fraud on the court” in that Search box over there on the right at the top of the page, you will call up some posts I have done on the effect that fraud on the court has on a judgment.
Most fraud-on-the-court situations are pretty clear. Sometimes, though, you have to convince the judge that the behavior about which you are complaining did constitute a fraud on the court even though it appears benign on its face. Your burden of proof is clear and convincing, so you have to make sure the evidence is strong.
In Manning v. Tanner, 594 So.2d 1164, 1167 (Miss. 1992), the MSSC established four factors that the court must find in order to vacate a judgment for fraud on the court:
(1) that the facts constituting the fraud, accident, mistake, or surprise must have been the controlling factors in the effectuation of the original decree, without which the decree would not have been made as it was made;
(2) the facts justifying the relief must be clearly and positively alleged as facts and must be clearly and convincingly proved;
(3) the facts must not have been known to the injured party at the time of the original decree; and
(4) the ignorance thereof must not have been the result of the want of reasonable care and diligence.
Clearly factor 1 is the most important to the analysis. If the allegedly fraudulent conduct would not have effected the outcome, the relief should not include setting aside the judgment. To illustrate: I set aside an irreconcilable differences divorce once because on a R60 hearing a year later emails were produced in which the parties essentially agreed that the PSA presented to the court was a sham, and that they were actually agreeing to terms that an attorney had told them I would never approve. Had I known of the side deal when I was presented the original judgment I would never have signed it.
Factor 2 mentions pleadings. Remember the requirement of R9(b) that “the circumstances constituting fraud … shall be stated with particularity.” You have to state in your motion what the specific conduct was that you claim was fraudulent. And, again, the conduct must be proven by clear and convincing evidence.
If your client knew, or should have known by reasonable care and diligence, of the fraud, then the court should not set aside the judgment. That’s Factors 3 and 4.
In deciding whether to set aside a judgment for fraud on the court, the chancellor must keep in mind that “Relief based on ‘fraud upon the court’ is reserved for only the most egregious misconduct, and requires a showing of ‘an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’” Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989). “The mere non[-]disclosure to an adverse party and to the court of facts pertinent to a controversy before the court does not add up to ‘fraud upon the court’ for purposes of vacating a judgment under Rule 60(b).” Trim v. Trim, 33 So.3d 471, 477-78 (Miss. 2010). “To warrant relief pursuant to Rule 60(b)(1) the movant must prove fraud, misrepresentation or other conduct by clear and convincing evidence.” Hill v. Hill, 942 So.2d 207, 214 (Miss. App. 2006) [My emphasis].