Pro Se Times Five
June 9, 2015 § 5 Comments
Every now and then one of those tv commentators with a big head, staring all-knowingly into the eye of the camera, will pontificate that members of my generation believe — somewhat arrogantly, they say — that we can do anything.
I take issue with that. I know, for example, that I would not be a very successful brain surgeon, what with my less-than-steady hands and absolute ignorance of surgical techniques, not to mention minimal understanding of brain and skull structure. Of course my lack of success in that field would make me a spectacularly successful defendant — from the perspective of plaintiffs.
You would probably agree with me, as would most rational people, that it is singularly ill-advised for laypeople to attempt brain surgery on someone else, or even themselves.
Brain surgery requires a high degree of education, smarts, and practice. As does the law.
Why, then, do ordinarily sensible people — who would not dream of doing brain surgery, and who have had the wherewithal to reach adulthood without blowing themselves up or being devoured by wild beasts or falling into any similar calamity — insist on representing themselves in litigation and — horrors — on appeal?
That’s what happened in the case of Estate of Forrest: Forrest v. Forrest, decided June 2, 2015, by the COA. In that case, Diane Forrest had a falling-out with the sons of her deceased husband over assets and expenses of the estate. When Diane filed a petition to close the estate, the sons showed up at the hearing, ready to do battle. But the chancellor, in solomonic fashion, conferred with the parties and announced that they had reached a settlement agreeable to all. The COA opinion by Judge Ishee describes what happened next:
¶5. After reading the agreement into the record, the chancellor asked the parties if they understood and assented to the agreement as dictated into the record. All parties responded affirmatively. Diane then filed this appeal.
Pro se, I might add.
Diane’s appeal was doomed because Diane’s attorney (herself) apparently did not grasp the fundamental concept that an appeal involves legal argument. Judge Ishee explicated:
¶7. Diane filed her appellant’s brief pro se. In her brief, Diane failed to cite any authority in support of her claims. Pursuant to Mississippi Rule of Appellate Procedure 28(a)(6), an appellant’s brief must “contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” It is well settled under Mississippi caselaw that “failure to cite any authority is a procedural bar, and a reviewing court is under no obligation to consider the assignment.” Norwood v. Miss. Dep’t of Emp’t Sec., 105 So. 3d 408, 410 (¶5) (Miss. Ct. App. 2012) (citation omitted).
¶8. Although Diane has chosen to appeal this matter without the assistance of counsel, the Mississippi Supreme Court has consistently held that “[a] pro se litigant shall be held to the same standard as an attorney.” Bailey v. Wheatley Estates Corp., 829 So. 2d 1278, 1281 (¶11) (Miss. Ct. App. 2002). As such, we decline to address Diane’s assignments of error because she failed to cite any authority in her briefs.
Actually, Diane’s failure to cite any authority is probably indicative of the fact that there is no authority that would support reversing the chancellor in this case. Diane made her deal, affirmed her agreement in open court, and then tried to renege via appeal. That’s not a formula for success.
Oh, and did I mention that all four of the sons, who were appellees, are listed as pro se also? So were they better lawyers than Diane because they won? Not necessarily. Their one defensive ploy was to move to strike Diane’s brief because it was filed too late. The COA dismissed that issue as mooted out by the larger and much more obvious issue of failure to cite any authority.
I know what you’re probably thinking: “it’s obvious that they were pro se because they did not want to pay lawyers.” I get that. I know that lawyers, particularly in bulk, can be expensive. But that’s sort of beside the point. The point is that a pro se appeal is about as futile as doing brain surgery on oneself — and about as messy and painful.
The MRCP 60(b) Appeal
May 26, 2015 § Leave a comment
The COA’s decision in Crossley, et al. v. Moore, et al., decided April 21, 2015, addresses an important distinction between an appeal on the merits and what is reviewable in an appeal from a court’s MRCP 60(b) ruling.
In that case, the chancellor had stricken Crossley’s (the collective name for the defendants that this post will apply) answer and counterclaim due to a prolonged and obstinate refusal to cooperate and obey court orders for discovery. The judge entered a default judgment against the defendants, and set a hearing on damages. At that hearing, he heard testimony and entered a judgment against the defendants for more than $760,000 in damages, which included $26,000 in attorney’s fees. Crossley did not appeal.
Five months after entry of the judgment, Crossley filed a motion pursuant to MRCP 60(b) to set aside the judgments, claiming (1) that they never received notice of the hearing on sanctions for discovery violations, and (2) that they never received notice of hearing on the damages issue. At hearing, however, the defendants admitted that they did receive notice of the sanctions hearing, but insisted that they had not as to the damages hearing. The chancellor overruled the motion as to the sanctions hearing, leaving the default judgment intact, but granted a rehearing on the issue of damages.
Crossley appealed, arguing that the trial judge was in error in dismissing their answer and counterclaim based on sanctions.
The COA affirmed. Judge Maxwell wrote for the majority:
¶13. We begin with the discovery sanction. And the first order of business is to determine just exactly what Crossley and Templet are appealing. From their brief, they seem to argue they are appealing the merits of the August 2009 decision to strike their answer. But that decision led to a default judgment—a judgment that became final in March 2010. And this final judgment was not appealed. Nor was this judgment set aside. While the chancellor did order a new hearing on damages, Crossley and Templet acknowledge in their brief that the chancellor “refused to set aside the judgment itself.”
¶14. With the underlying default judgment left undisturbed, what Crossley and Templet are in fact appealing is the denial of their Rule 60(b) motion to set aside. See Blackmon v. W.S. Badcock Corp., Inc., 342 So. 2d 367, 371 (Ala. Civ. App. 1977) (holding that a Rule 60(b) ruling to vacate a damages award and conduct a new hearing did not confer on the movant the right to address the merits of the underlying default judgment). As we recently reiterated, this court’s “review of the denial of a Rule 60(b) motion is extremely limited.” Davis v. Vance, 138 So. 3d 961, 963 (¶1) (Miss. Ct. App. 2014). We are “not allowed to inquire into the actual merits of the underlying judgment.” Id. This is because Rule 60(b) is not a vehicle to relitigate the merits of a trial judge’s decision. Woods v. Victory Mktg., LLC, 111 So. 3d 1234, 1237 (¶13) (Miss. Ct. App. 2013). So even if the chancellor had done something that may have been reversible error had Crossley and Templet timely appealed, the fact remains that they did not appeal. And Rule 60(b) cannot be used to get around this. See Williams v. New Orleans Pub. Serv., Inc., 728 F.2d 730, 736 (5th Cir. 1984).
¶15. This court reviews the denial of their Rule 60(b) motion for abuse of discretion. Stringfellow v. Stringfellow, 451 So. 2d 219, 221 (Miss. 1984).
That’s a critical point to grasp. You can not use R60(b) as a vehicle to open the merits of the underlying judgment to appellate review. Once the deadline for appeal has past, the judgment itself is final and not reviewable on the merits. The only issue on appeal is whether the trial judge abused his or her discretion in ruling on the R60(b) motion. In this particular case, the COA ruled that the chancellor had not abused his discretion.
Another take-away from this case is that continued obstinate evasion of discovery and failure to abide by court orders for discovery have painful consequences that can radically alter the landscape of a lawsuit.
A Willful, Wanton or Reckless Disregard
May 18, 2015 § 2 Comments
It doesn’t come up very often in chancery court, but from time to time a party will ask a chancellor to impose punitive damages.
Not surprisingly, the latest reported case involved parties contending over an easement. I think most experienced chancery practitioners would nod in agreement that easement and property line disputes can quite often eclipse even bitter divorces for malicious, vicious, destructive behavior.
In the case of Muirhead v. Cogan, decided March 10, 2015, siblings Steve Muirhead and Lula Cogan, along with some other siblings, inherited some land near Vicksburg. A private easement, called “Muirhead Road,” gave both Steve and Lula access to their portions of the property. Steve’s son Ronnie built a home near Steve’s, and after he began using the road also, Steve augmented the hardpan dirt surface with gravel.
The gravel washed out in heavy rains, and Steve wanted Lula to contribute $3,000 to help maintain the easement. Lula, however, was not convinced. She had the road inspected by Pete B. (described in the COA opinion as “a construction worker who owns a construction business”), who opined that it did not need any maintenance.
That’s where things took a detour:
¶6. In 2006, Ronnie built a road that intersected Muirhead Road. After the new road was built, both Steve and Ronnie abandoned the easement and began using the newly built road to access their houses. Ronnie also installed a culvert near the intersection. The culvert directed water away from the newly built road and onto the easement. Also in 2006, after the new road was built, most of the gravel was mysteriously removed from the easement. At some point after the gravel was removed, dirt from the center of the easement was pushed up onto the sides of the easement. After that, a large v-shaped ditch was dug across the easement, preventing vehicular use of the easement.
¶7. In 2007, Lula hired Pete to perform conservation work on her property. To access Lula’s property, Pete and his employees had to use the easement. To make the easement usable, Pete instructed one of his employees, Marcus Clark, to fill the v-shaped ditch with dirt. Marcus complied. However, shortly thereafter, a trench, which was approximately four feet deep and five feet wide, was dug in the center of the easement. As a result, water settled in the center of the easement, causing severe erosion. By 2008, the easement had almost completely eroded.
Lula sued, and one of her claims was for punitive damages. The COA opinion is enlightening about what law the chancellor is required to apply in making a determination whether to assess punitive damages. Judge Irving, for the court:
¶25. Steve argues that the chancery court erred by awarding punitive damages after: (1) applying an improper legal standard and (2) failing to hold an evidentiary hearing on the issue of punitive damages. Second, Steve argues that the chancery court erred by finding that the erroneous award of punitive damages was a proper basis for the award of attorney’s fees. Finally, Steve argues that the chancery court erred by finding James’s testimony credible because James relied on notes prepared by Lula. On the other hand, Lula asserts that a careful reading of the final judgment reveals that the chancery court utilized the clear-and convincing standard in finding that Steve’s actions were malicious.
¶26. In [Jones v. Music, 2 F.Supp.2d 880 (SD Miss. 1988)], which the chancery court relied on in assessing punitive damages, the United States District Court for the Southern District of Mississippi indicated that the standard to be applied during a court’s assessment of punitive damages is a preponderance-of-the-evidence standard. Jones, 2 F. Supp. 2d at 884 (finding that “[p]unitive damages may be awarded only when the trier of fact is persuaded by a preponderance of the evidence that defendant’s actions were wanton, malicious[,] or fraudulent in nature.”) Likewise, in its final judgment, the chancery court found that “[p]unitive damages may be awarded only when the trier of fact is persuaded by a preponderance of the evidence that [the] defendant’s actions were wanton, malicious[,] or fraudulent in nature.” The chancery court further found
that [Steve’s] conduct was malicious, intentional[,] and outrageous. The court finds that removing the gravel that he bought and put on the easement, and cutting a vee down the easement, was spiteful. However, after the easement was made usable following these acts, regardless of who deepened the ditches (which the court believes was an act of [Steve]), digging the trench down the middle of the easement under the guise of saving his fence[] was clearly malicious, intentional[,] and outrageous. [Steve], as a farmer[] who retired from the construction business[,] knew that this action would destroy the easement (and having destroyed the easement, [Steve] now seeks to abandon it). He knew that he could take other, less invasive, remedial actions. He never discussed the fence situation with [Lula] to ascertain the best remedial action; therefore, he was not interested in finding the best solution or in saving the easement. Obviously, he wanted to prevent [Lula] from using the easement regardless of her right to use the easement. Through this aggressive action, which he even admits was wrong, [Steve] showed an intentional[,] wanton disregard for the rights of [Lula], and Lula is entitled to punitive damages in the amount of $10,000.
¶27. We find that the standard enunciated in Jones is in clear conflict with Mississippi statutory law. Mississippi Code Annotated section 11-1-65 (Rev. 2014) provides, in relevant part, as follows:
(1) In any action in which punitive damages are sought:
(a) Punitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.
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(c) If, but only if, an award of compensatory damages has been made against a party, the court shall promptly commence an evidentiary hearing to determine whether punitive damages may be considered by the same trier of fact.
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(f)(i) Before entering judgment for an award of punitive damages the trial court shall ascertain that the award is reasonable in its amount and rationally related to the purpose to punish what occurred giving rise to the award and to deter its repetition by the defendant and others.
(ii) In determining whether the award is excessive, the court shall take into consideration the following factors:
1. Whether there is a reasonable relationship between the punitive[-]damage award and the harm likely to result from the defendant’s conduct as well as the harm that actually occurred;
2. The degree of reprehensibility of the defendant’s conduct, the duration of that conduct, the defendant’s awareness, any concealment, and the existence and frequency of similar past conduct;
3. The financial condition and net worth of the defendant; and
4. In mitigation, the imposition of criminal sanctions on the defendant for its conduct and the existence of other civil awards against the defendant for the same conduct.
¶28. Despite Lula’s argument to the contrary, it is unclear whether the chancery court required Lula to prove by clear and convincing evidence that Steve’s actions were malicious. However, the chancery court’s reliance on Jones suggests that the court applied the lesser standard. Additionally, the record does not reveal that the chancery court conducted an evidentiary hearing on the issue of punitive damages, or that the chancery court ascertained that the punitive-damages award was reasonable in its amount and rationally related to the purpose of deterrence. Furthermore, the chancery court failed to consider the factors enumerated in section 11-1-65(f)(ii). Therefore, we find that the chancery court erred by awarding punitive damages in this case. Consequently, we reverse and remand for an evidentiary hearing wherein the chancery court must determine by clear and convincing evidence whether Steve’s actions were willful, wanton, and malicious. If, on remand, the chancery court finds that punitive damages are warranted, then the chancery court must consider the factors enumerated in section 11-1-65(f)(ii) in determining the amount of punitive damages to be awarded.
The court went on to reverse the award of attorney’s fees in the case because the judge had not enunciated any basis other than punitive damages for the attorney fee award.
Modification During a Pending Appeal
April 14, 2015 § Leave a comment
In 2011, Brad and Caroline Nurkin were divorced in Tennessee. Caroline later relocated to Mississippi, and brad to Georgia.
In 2012, Caroline filed a modification of visitation and contempt action against Brad. The chancellor ruled that the court had jurisdiction over the modification, but dismissed the contempt.
There was a hearing, and on September 20, 2013, the chancellor entered a judgment modifying the visitation schedule. Both parties filed post-trial motions, which the chancellor denied. Brad then filed his notice of appeal on October 21, 2013. Then, on November 22, 2013, Brad filed a contempt action that included a motion to clarify the September ruling to specify when his visitation would commence. The judge entered an order not only clarifying that point, but also further modified Brad’s visitation.
On appeal, Brad argued that the chancellor had no jurisdiction to modify his original judgment, since the case was on appeal. The COA agreed. Judge Lee, wrote for the unanimous court in Nurkin v. Nurkin, handed down April 7, 2015:
¶16. Brad contends that the chancellor did not have jurisdiction to modify the original judgment while the appeal was pending. As previously stated, the chancellor entered the order modifying visitation on September 20, 2013. Brad then filed a notice of appeal on October 21, 2013, which was the day his post-trial motion was denied. On November 22, 2013, Brad filed his motion for contempt asking for clarification regarding his weekend visitation schedule. On December 16, 2013, the chancellor modified the judgment and clarified Brad’s weekend visitation. The chancellor also awarded Brad one extra monthly visitation if it occurred in Hattiesburg. Brad now argues that the chancellor did not have jurisdiction to modify the original judgment while it was on appeal. We note that Brad sought clarification of his visitation schedule, and after receiving extra visitation, he is now arguing that the chancellor had no jurisdiction to order the extra visitation while the appeal was pending.
¶17. The supreme court has held that ordinarily the filing of a notice of appeal transfers jurisdiction of a matter from the lower court to the appellate court, and the lower court no longer has the authority to amend, modify, or reconsider its judgment. McNeese v. McNeese, 129 So. 3d 125, 128 (¶7) (Miss. 2013). If an appeal has no supersedeas bond, as in this case, a party may execute on the judgment, but the lower court cannot “broaden, amend, modify, vacate, clarify, or rehear the decree.” McNeil v. Hester, 753 So. 2d 1057, 1076 (¶68) (Miss. 2000). In McNeese, the supreme court held that an agreed order entered by a chancellor while an appeal was pending “merely specified how the previous [j]udgment of [d]ivorce should be satisfied. . . . [It] did not broaden, amend, modify, vacate, or clarify the judgment through the [a]greed [o]rder.” McNeese, 129 So. 3d at 129 (¶12). However, in this case, the chancellor modified the original judgment by awarding Brad extra visitation with Jake. Consequently, the order entered December 16, 2013, is void and must be vacated.
This is a subject about which we’ve talked here before, and here.
The 41(b) Dismissal
April 2, 2015 § Leave a comment
When the other side rests in a contested bench trial, that’s the time to consider whether you should make a motion to dismiss pursuant to MRCP 41(b).
In the recent case of Pittman v. Pittman, handed down March 24, 2015, the COA, by Judge James, spelled out just what it takes for the chancellor to grant such a motion:
¶10. A motion for an involuntary dismissal pursuant to Rule 41(b) should be granted if the chancellor, “after viewing the evidence fairly, . . . would find for the defendant.” Amos ex rel. Amos v. Jackson Pub. Sch. Dist., 139 So. 3d 120, 123 (¶7) (Miss. Ct. App. 2014). A chancellor “must deny a motion to dismiss only if the [chancellor] would be obliged to find for the plaintiff if the plaintiff’s evidence were all the evidence offered in the case.” Id. When reviewing a Rule 41(b) dismissal, this Court “will not overturn the decision of a chancellor if his findings are supported by substantial evidence unless he abused his discretion, was manifestly wrong, or applied an erroneous legal standard.” Jones v. Jones, 101 So. 3d 731, 732 (¶4) (Miss. Ct. App. 2012).
That’s about as succinct a statement of the standard to be applied that you will find. You might want to file that away for future use.
The Importance of a Hold-Harmless Clause
January 27, 2015 § 1 Comment
Jeremy and Tiffiny Moseley entered into a property settlement agreement (PSA) that was incorporated into their 2000 irreconcilable differences divorce judgment. One of its terms was that Jeremy would have “exclusive use and possession of the 1998 Chevrolet Camaro,” and that he would be “solely responsible for the payment of all debt, insurance, and taxes associated with said vehicle. The agreement also provided that Jeremy would “hold [Tiffiny] harmless for any debt associated with said vehicle.”
Following the divorce, Jeremy filed for bankruptcy in Arizona, where he had moved. He listed as a creditor the lienholder on the Camaro, Trustmark, but he did not list Tiffiny as a co-debtor or separate creditor based on the hold-harmless language. Jeremy was discharged in bankruptcy in 2001. [Note that this was a pre-2005-amendment non-support obligation that was dischargeable in bankruptcy]
Trustmark sued Tiffiny and obtained a judgment against her for more than $15,000, plus interest.
Tiffiny sued Jeremy for contempt for non-compliance with the hold-harmless clause. The chancellor held that the bankruptcy had no effect on his obligation to Tiffiny under the hold-harmless clause, and awarded her a judgment against him, plus interest and attorney’s fees. He appealed.
In Moseley v. Smith, decided December 2, 2014, the COA affirmed, and Judge Maxwell’s opinion includes some significant language about hold-harmless clauses that you need to file away for future use:
¶16. We begin with the bankruptcy issue. Moseley seems to treat his financial obligations involving the Camaro as a singular debt—a debt he owed to Trustmark, which was discharged in his Chapter 7 bankruptcy. But Moseley actually had two debts connected to the Camaro—(1) the debt to Trustmark bank to repay the car loan, and (2) the contingent debt to Smith, which would arise if Trustmark went after her for repayment of the car loan. While Moseley listed the first debt to Trustmark on his bankruptcy petition, he omitted his second debt to Smith. He also failed to otherwise notify Smith that her rights as a creditor may be affected by his bankruptcy petition. Thus, his debt to Smith was not covered by his bankruptcy discharge. See In re Hill, 251 B.R. 816, 821 (Bankr. N.D. Miss. 2000) …
¶17. In bankruptcy terms, the provision in the property-settlement agreement that Moseley would hold Smith harmless for any debt associated with the Camaro “create[d] a ‘new’ debt, running solely between the former spouses.” In re Jaeger-Jacobs, 490 B.R. 352, 357 (Bankr. E.D. Wis. 2013) (citing In re Schweitzer, 370 B.R. 145, 150 (Bankr. S.D. Ohio 2007)). Under the version of the United States Bankruptcy Code in effect during Moseley’s 2001 bankruptcy, this type of debt was presumptively non-dischargeable as a non-alimony debt “incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record[.]” In re Clark, 207 B.R. 651, 655 (Bankr. E.D. Mo. 1997) (quoting 11 U.S.C. § 523(a)(15) (1994)).
The opinion goes on to analyze the notice requirements in effect at the time of Jeremy’s bankruptcy, and how failure to give Tiffiny notice affected her ability to file a timely objection. Those notice and objection requirements were changed by the 2005 amendments to the bankruptcy laws.
The important point here is that when you add hold-harmless language to your PSA you are creating a new debt between the parties that is most likely not dischargeable, is entirely separate and apart from the underlying obligation, and is enforceable via contempt in chancery court.
It would seem to me that even without the hold-harmless language the agreement between the parties is a separate contractual obligation that would be entirely enforceable; however, the authority cited by Judge Maxwell raises the point to a higher level and should remove all doubt if the hold-harmless language is included.
It’s simple to add that hold-harmless language to your PSA templates. It won’t hurt your client if she is the co-debtor who will not be paying the debt, and it just might make a crucial difference somewhere down the line — and that, after all, is your job.
Findings on a Rule 60 Motion
December 17, 2014 § 4 Comments
Aside from the remarkable fact that the December 9, 2014, COA case of Pride v. Pride involved twelve (12) pro se appellees, the decision also makes the notable point that findings of fact and conclusions of law are not necessarily required in the court’s ruling on a R60 motion.
This is a partition case involving 150 acres, more or less, in which siblings disagreed over the division. The chancellor ordered that a house and one acre be sold at auction, and six years later two brothers filed a R60 motion for relief from judgment, which the chancellor denied. The brothers also asked the court for specific findings of fact and conclusions of law, per R52(a), which the chancellor also denied. The brothers appealed.
The order for sale of the home had been the subject of a previous appeal, which was found to be without merit in Pride v. Pride, 60 So.3d 208 (Miss. App. 2011). The COA characterized the six-year after-the-fact R60 motion in this case as ” … nothing more than his unsupported assertion …” that he (one of the brothers, William) was entitled to some relief. He did not invoke any of the legitimate bases of R60, and he offered no evidence to support his claims. The court found no merit to his R60 argument.
As for his claim that the chancellor should have made specific findings of fact and conclusions of law, Judge Roberts, for the majority, said this:
¶10. Next, William claims that the chancellor erred when he did not provide written findings of fact and conclusions of law related to the decision to deny the Rule 60(b) motion. Rule 52(a) of the Mississippi Rules of Civil Procedure provides that “[i]n all actions tried upon the facts without a jury[,] the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly.” If a party requests findings of fact and conclusions of law, and the trial court does not enter them, an “appellate court must consider the effect of the trial court’s missed responsibility, and overwhelming evidence may be required as a condition for affirmance.” Bodne v. King, 835 So. 2d 52, 57 (¶15) (Miss. 2003). “Whe[n] . . . a case is hotly contested and the facts [are] greatly in dispute[,] and whe[n] there is any complexity involved therein, failure to make findings of ultimate fact and conclusions of law will generally be regarded as an abuse of discretion.” Tricon Metals & Servs. Inc. v. Topp, 516 So. 2d 236, 239 (Miss. 1987). However, a trial court is only obligated to enter requested findings of fact when an action has been “tried upon the facts without a jury.” Harmon v. Regions Bank, 961 So. 2d 693, 700 (¶24) (Miss. 2007).
¶11. The chancellor was not required to view the allegations in William’s Rule 60(b) motion as though they were true. William’s Rule 60(b) motion was not an action “tried upon the facts,” because it did not include anything but allegations, and no facts were ever presented. William fails to explain how the chancellor could possibly find any facts after he failed to present any. And the chancellor’s decision to deny William’s Rule 60(b) motion did not result in the entry of a judgment. Therefore, the chancellor was justified in summarily denying William’s request for written findings of fact and conclusions of law. It follows that we find that the chancellor did not abuse his discretion, and there is no merit to this issue.
The axis upon which the COA’s decision turned was the absence of any evidence upon which the court was asked to rule. In essence, the brother(s) were asking the court for a do-over on their already-lost position.
One way to approach the rules is through a literal reading and rigid application: the rule says it, so do it. The better approach, to me, is to consider what is to be accomplished and why. Here, findings of fact and conclusions of law would be nothing more than a rehash of what had been done before, since the brothers presented nothing new. It would have been an empty exercise that might have planted the possibility of error in the record, which may be just what they had in mind to further delay this already-lengthy litigation. As MRCP 1 says, “These rules shall be construed to secure the just, speedy, and inexpensive determination of every action.”
In the COA’s recitation of the case’s history, the quotes from Pride, supra, repeatedly refer to the William’s 2006 motion for a JNOV (directed verdict) as to the court’s order for a partition in kind. <SIGH> It’s a lamentable subject I posted about here recently.
Directed Verdict vs. Involuntary Dismissal
December 3, 2014 § 4 Comments
Juries render verdicts. Judges in bench trials render judgments.
Thus, the proper motion after the plaintiff has rested in a jury trial is a motion for a directed verdict, per MRCP 50(a).
In a bench trial, which includes 99.9% of chancery matters, the proper motion is one for an involuntary dismissal, per MRCP 41(b), which states:
… After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court may then render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence …
In the case of SKL Investments v. Hardin and Torrence, handed down November 18, 2014, the COA said this:
¶12. “[T]he appropriate motion in a case tried without a jury is not a motion for [a] directed verdict, but involuntary dismissal, pursuant to Rule 41(b) of the Mississippi Rules of Civil Procedure.” Gulfport-Biloxi Reg’l Airport Auth. v. Montclair Travel Agency Inc., 937 So. 2d 1000, 1004 (¶13) (Miss. Ct. App. 2006). “When reviewing a dismissal under . . . Rule . . . 41(b), we will not overturn the decision of [the chancery court] if [its] findings are supported by substantial evidence unless [the chancery court] abused [its] discretion, was manifestly wrong, or applied an erroneous legal standard.” Jones v. Jones, 101 So. 3d 731, 732 (¶4) (Miss. Ct. App. 2012) (citation omitted).
We discussed the different standards to be applied by the court in each of the two rules in a previous post. The distinction is substantial.
Legal nerd that I am, it irks me when I read a decision of the appellate court referring to a R41(b) motion in chancery court as one for a directed verdict. There are no verdicts in chancery court except in the relatively rare event of a jury trial — which now occurs only when one is requested in a will contest, and when the chancellor impanels an advisory jury (assuming that can still be done under the MRCP).
Likewise, you could conceivably lead an unsuspecting chancellor in a bench trial into error by casting your motion as one for a directed verdict. When the chancellor applies the proper legal standard to that motion, she is automatically in error, since it does not apply in bench trials.
Terminology can make a difference.
The Better Chancery Practice Blog 