The Basis for a New Trial
October 8, 2014 § Leave a comment
MRCP 59(a) provides that the trial court may grant a new trial ” … in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.” In non-jury cases ” … the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings of fact and conclusions, and direct entry of a new judgment.”
On its own initiative, the court may, within ten days of entry of a judgment, order a new trial (rehearing) for any of the above reasons. And the court may, after giving the parties’ notice, grant a new trial for reasons not stated in a motion. The court must spell out the grounds for its ruling.
In the case of Bariffe v. Estate of Lawson, et al., about which we posted yesterday, Justice Coleman’s dissent adds some important insight into how R59 is supposed to be applied by the trial court [beginning in ¶50]:
… Rule 59 must be read and interpreted in light of [MRCP] Rule 61, which provides:
No error in either the admission or the exclusion of evidence and no error in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Miss. R. Civ. P. 61. Thus, a harmless error in the proceedings that “does not affect the substantial rights of the parties” is not a sufficient reason for granting a new trial. Id. Applying Rule 59, the Court has held that trial courts have discretion in granting a new trial if the judge is convinced that (1) “a mistake of law or fact has been made” or (2) “injustice would attend allowing the judgment to stand.” Mayoza v. Mayoza, 526 So. 2d 547, 549-50 (Miss. 1988). …
As we discussed in the previous post, the chancellor granted a new trial in Bariffe because he felt that he had improperly limited the parties’ presentation of their cases in the first trial by imposition of time limits on the examination of witnesses. The majority found no error in his granting of a new trial. Judge Coleman would have held it to be error based on his analysis above.
If you are going to make a R59 motion and argument, make sure you define what substantial rights were affected by the judge’s ruling, and stress that point. If you are on the receiving end of the motion, argue that the movant has failed to raise an issue cognizable under R61.
When Can a Chancellor Award Punitive Damages?
September 18, 2014 § 4 Comments
Bar-Til entered into a contract as a subcontractor to do some work for Superior Asphalt on Pull-A-Part’s property. Problems arose with some environmental regulations that required some change orders. As the work expanded, so did the bills, and Superior quit paying the invoices.
Bar-Til sued Superior for breach of contract, breach of covenant of fair dealing, and breach of fiduciary duty. Bar-Til included Pull-A-Part on the basis that it had been unjustly enriched by Bar-Til’s uncompensated effort. When the trial was in its third day, Bar-Til moved to amend its complaint to allege bad faith, seeking punitive damages from Superior. The chancellor granted the motion, but clarified that only the issue of whether punitive damages would be an issue was before the court. He said that Bar-Til could “offer the proof of punitive damages when we decide if that’s going to be an issue.”
At the conclusion of trial, the chancellor found for Bar-Til on the breach of contract issue, and added that Bar-Til was even entitled to recover on a quantum meruit basis. The chancellor found that Bar-Til failed to prove that Superior acted in bad faith or breached a fiduciary duty, and so failed to prove entitlement to punitive damages. Since no punitive damages were due, attorney’s fees were denied. The judge also found that Bar-Til had failed to prove any of its claims against Pull-A-Part.
Bar-Til appealed on the chancellor’s denial of punitive damages, charging that the denial was in error, as was the chancellor’s refusal to hold a separate hearing on punitive damages.
In the COA case of Bar-Til, Inc. vs. Superior Asphalt, Inc. and Pull-A-Part, LLC, decided August 26, 2014, Judge Carlton spelled out the parameters for chancery judges considering whether to award punitive damages:
¶14. Our caselaw provides that “[t]he award of punitive damages, along with the amount of such, are within the discretion of the trier of fact.” Hurst v. Sw. Miss. Legal Servs. Corp., 708 So. 2d 1347, 1350 (¶6) (Miss. 1998) (citation omitted). In contract cases, “[p]unitive 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.” Miss. Code. Ann. § 11-1-65(1)(a) (Supp. 2013). In determining the propriety of punitive damages, a chancellor “decides whether, under the totality of the circumstances and viewing the defendant’s conduct in the aggregate, a reasonable, hypothetical trier of fact could find either malice or gross neglect/reckless disregard.” Ciba-Geigy Corp. v. Murphree, 653 So. 2d 857, 863 (Miss. 1994) (citations omitted).
* * *
¶19. We now turn to a review of the statutory law and caselaw applicable to punitive damages. In discussing whether an award of punitive damages is proper, Mississippi Code Annotated section 11-1-65(1)(b)-(c) (Supp. 2013) provides:
In any action in which the claimant seeks an award of punitive damages, the trier of fact shall first determine whether compensatory damages are to be awarded and in what amount, before addressing any issues related to punitive damages.
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.
¶20. The Mississippi Supreme Court has also provided the following guidance:
Mississippi law does not favor punitive damages; they are considered an extraordinary remedy and are allowed with caution and within narrow limits. Punitive damages should be awarded in addition to actual or compensatory damages where the violation of a right or the actual damages sustained, import insult, fraud, or oppression and not merely injuries, but injuries inflicted in the spirit of wanton disregard for the rights of others. In other words, there must be some element of aggression or some coloring of insult, malice[,] or gross negligence, evincing ruthless disregard for the rights of others, so as to take the case out of the ordinary rule.
. . . This Court has held that punitive damages are recoverable in breach of contract cases where the breach results from an intentional wrong and when there has been a showing of malice or gross/reckless disregard for the rights of others. Punitive damages are only appropriate in the most egregious cases so as to discourage similar conduct and should only be awarded in cases where the actions are extreme.
Warren v. Derivaux, 996 So. 2d 729, 738 (¶¶27-28) (Miss. 2008) (internal citations and quotation marks omitted).
¶21. As our precedent reflects, some underlying basis, such as actual malice or fraud, must exist for an award of punitive damages before a chancellor will hold a second hearing on the issue of such damages. See Miss. Code. Ann. § 11-1-65(1) (Supp. 2013). In the present case, the chancellor found no merit to Bar-Til’s claim that Superior’s conduct justified an award of punitive damages. As reflected in his order and final judgment, the chancellor found that Bar-Til failed to provide the requisite evidentiary basis to support an award of punitive damages.
That’s a pretty nifty survey of the law of punitive damages, and it illustrates how exceptional and infrequent such awards are.
The COA swept aside Bar-Til’s claim about the failure to hold a separate hearing based on the chancellor’s conclusion that punitive damages were not warranted.
MRCP 41(b) in Operation
September 16, 2014 § Leave a comment
The COA’s September 9, 2014, decision in In the Matter of Will of Bowling: Hicks v. Bowling, addresses a dismissal by the trial court of a will contestant’s complaint after she had rested in a bench trial.
The dismissal was per MRCP 41(b), which states, in pertinent part:
… 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 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 …
The defendant, Mark Bowling, moved to dismiss at the conclusion of Paula Hicks’s case in chief, and the chancellor granted the motion. Paula appealed.
Judge Maxwell set out the applicable law:
¶18. In contrast to a motion for a directed verdict under Mississippi Rule of Civil Procedure 50(a), which applies to jury trials and requires the trial judge to view the evidence in the light most favorable to the plaintiff, a Rule 41(b) motion to dismiss differs somewhat. It applies to cases tried by a judge sitting without a jury and requires the judge to view the evidence fairly. Gulfport-Biloxi Reg’l Airport Auth. v. Montclair Travel Agency, Inc., 937 So. 2d 1000, 1004 (¶13) (Miss. Ct. App. 2006) (contrasting Rule 41(b) with Rule 50(a)). When considering a Rule 41(b) motion to dismiss, the judge must deny the 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. at 1004-05 (¶13) (quoting Stewart v. Merchs. Nat’l Bank, 700 So. 2d 255, 259 (Miss. 1997)).
The standard, then, is for the court to consider the plaintiff’s evidence fairly, and to overrule the motion only if the judge would be compelled to rule in the plaintiff’s favor if her case in chief were all the evidence in the record. The court is not obliged to view the evidence in a light most favorable to the plaintiff, as in jury trials, but only fairly.
The COA went on to find that the chancellor had considered Paula’s evidence fairly, and agreed with the chancellor’s analysis of why she had not met her burden of proof in the case.
The distinction between viewing the evidence in a light most favorable to the plaintiff and viewing it fairly can be major. In the former, the judge must tilt the perspective, so to speak, in the plaintiff’s favor. In the latter, the view is more even-handed. Knowing the distinction and being able to apply it to the facts in your case could mean the difference between winning and losing your case on a R41(b) motion. Keep in mind, though, that nothing can save your case if you have not met your burden of proof. That means using those checklists and proving every applicable factor.
More on Evidence of Prior Conduct in a Modification Case
September 2, 2014 § Leave a comment
As a rule, in a modification the chancellor is prohibited by the principle of res judicata from considering evidence of conduct that predates the judgment sought to be modified. It’s a concept that we have talked about here before.
The COA case of Summerlin v. Eldridge, handed down August 19, 2014, is the most recent case to deal with the issue.
In their divorce in May, 2011, Mike and Tamara Summerlin agreed to a custody arrangement under which Mike would have custody of daughter Madison, and Tamara would have custody of the two younger children, Haley and Grace.
In August, 2011, Tamara filed for modification, seeking custody of Madison, and, apparently, asking for MIke to have custody of Haley. An agreed judgment was entered changing custody of Madison from Mike to Tamara, and custody of Haley from Tamara to MIke.
After that the parties swapped salvoes of pleadings for contempt and modification, and, in February, 2012, the chancellor left custody as the parties had previously agreed. They subsequently agreed that Mike would regain custody of Madison. That left only custody of Grace as a contested issue.
The case came to trial, and the chancellor, in October, 2012, awarded custody of all three children to MIke.
Tamara appealed, arguing that the chancellor erred in considering conduct of hers that predated the August, 2011, order, which had been the last modification order entered before the final modification judgment resulting from the trial.
The COA found no error. Here’s what Judge Fair’s opinion stated:
¶8. Tamara argues the chancellor erred in allowing testimony concerning matters that occurred prior to the August 19, 2011 order. According to Lackey v. Fuller, 755 So. 2d 1083, 1086 (¶13) (Miss. 2000), this practice is not permissible because of the res judicata principle. Tamara is correct that res judicata prohibits the chancellor from considering circumstances that occurred prior to the decree being considered for modification. Id. However, in this instance, the order awarding the custody of Grace to Tamara was entered on May 24, 2011, and not on August 19, 2011. The August 19, 2011 order changes custody of Madison and Haley but does not mention Grace.
¶9. Furthermore, in denying Tamara’s motion to reconsider, the chancellor noted that the only “evidence of events predating the original divorce decree was considered as impeachment evidence to [Tamara’s] and Del’s testimony.” The chancellor found the facts distinguishable from those in Lackey. Our review of a chancellor’s decision to admit evidence falls under the familiar abuse-of-discretion standard. Id. at (¶10). In this instance, we find no abuse of discretion by the chancellor. This issue is without merit.
So, two points:
- In order for the bar of res judicata to operate, the four identities must be present. In this case, the prior modification judgment(s) did not create a bar as to testimony involving custody of Grace, because Grace was not part of the subject matter of the prior judgment(s). The bar does not exist from the date of the last order or judgment entered, but rather exists when the four identities come together in one order or judgment. In this case, the last order or judgment in which the four identities were present as to Grace was the divorce judgment, and the testimony at trial to which Tamara objected was post-divorce-judgment.
- The reason why the testimony is offered appears to make a difference. Here it was not considered substantively by the trial judge, but was only considered as impeachment of Tamara’s and her current husband’s testimony. The COA did not cite any case specifically so holding, but you may want to cite this decision to support such an argument next time you have this issue come up.
A Dog Bites Man Case
August 7, 2014 § 2 Comments
Charles Anderson Dana, Civil-War-era managing editor and part-owner of the New York Tribune newspaper is credited with the astute observation that “When a dog bites a man that is not news, but when a man bites a dog that is news,” or words to that effect.
So, when a particular case from our appellate courts is not news, so to speak, I guess one could call it a “Dog-bites-man case.”
Squarely in that category is the COA’s July 15, 2014, decision in McBride v. McBride, which ascended to that lofty court from a chancellor’s ruling in the midst of a contentious series of legal battles between Lindsey and Jimmie McBride, a divorced couple, over custody and visitation. Lindsey had opened a second front in the pair’s warfare by enlisting the aid of a sympathetic family court in Louisiana. Jimmie counterattacked with another round of modification pleadings in Mississippi.
The chancellor’s ruling was this:
Jimmie’s “[p]etition for [m]odification of [v]isitation/[c]ustody shall be stayed for thirty (30) days from the date of entry of this order upon condition that within said thirty (30) days the Louisiana [c]ourt, on [Lindsey’s] motion, set aside [its] May 17, 2012 [o]rder, and allow [Jimmie] to answer the Rule to Show Cause filed on March 9, 2012[,] in the Louisiana [c]ourt. In the event that does occur, counsel for each party shall notify [the chancery c]ourt at which time [the chancery c]ourt shall recognize that a proceeding concerning the custody of the child is pending in [Louisiana], and [the chancery c]ourt will consider whether or not it should transfer jurisdiction to [Louisiana] . . . . In the event the Louisiana court does not set aside [its] May 17, 2012 [o]rder within said thirty (30) days, [Jimmie] may set for hearing his [p]etition for [m]odification of [v]isitation/[c]ustody.”
Not particularly satisfied with this ruling, Lindsey appealed. She did not request to file an interlocutory appeal.
Now, if you have been paying even scant attention to this blog in the past year or so, I think you’ll guess correctly where this is heading.
The chancellor’s ruling left Jimmie’s modification action pending, and the chancellor did not certify his order under MRCP 54(b). Result = Appeal dismissed. Not really news. Happens every time … and quite frequently.
This has been a slow chancery-news summer, so a dog-bites-man case was newsworthy enough to merit a post. But, a man-bites-dog case … now there’s some real news. I’ll be waiting for one to report on.
Perfecting Your Appeal
July 22, 2014 § Leave a comment
I think there is considerable confusion among attorneys over how to perfect an appeal and what are the deadlines that apply.
Jane Tucker has an excellent post, Perfecting Your Appeal, that sets out the process in 1-2-3 order, in about as clear a fashion as can be done. I recommend that you read it and have it handy for your next appeal.
From motions and orders of the MSSC that cross my desk, I have seen confusion over appeal bonds, deadlines, deposits for record costs, and designation of record. It’s really not that complicated, though; the MRAP applies, and the procedures are there.
Two final points … (a) MRAP 24(b) requires that the trial judge be served with a copy of every brief; in practice, this is not being done; and (b) If you file a petition for an interlocutory appeal, it would be courteous and a singular mark of your professionalism if you would simultaneously serve a copy on your trial judge because she is permitted to file a response within 14 days of your filing, per MRAP 5(b).
I don’t usually address appeal procedures here because I try to focus on chancery trial practice. With the apparent confusion I have seen among some lawyers in getting their appeals aloft, I thought this might be helpful.
Ravenstein: Sizzle or Fizzle?
July 21, 2014 § 7 Comments
I vote fizzle.
Last December I reported that the MSSC was asking for additional briefing in the case of Ravenstein v. Hawkins ” … addressing whether equal protection would be violated by an interpretation that child support may not be ordered for adult children who are mentally or physically incapable of self-support under Sections 93-5-23 and 93-11-65, given the mandate of Section 43-19-33 that a certain class of people may receive such support …”
To me, that signaled that the high court was preparing to address the troubling issue of parental duty to support adult disabled children. The last MSSC case to address the issue was Hays v. Alexander, in June, 2013, about which I posted here. Back then, I said this:
The MSSC yesterday ruled in Hays v. Alexander that there is nothing in the common law that would empower the court to create a duty in parents to support adult disabled children. The court said at ¶ 15: “The power to grant the authority to require parents in Mississippi to support their adult children is confided to a separate magistry: the Legislature. Our courts are without the constitutional power to declare otherwise.”
The court handed down its adjudication of Ravenstein last Thursday, and, the bottom line is that we are exactly where we were post-Hays v. Alexander.
John and Elisha Ravenstein were divorced from each other in 1998. In the divorce judgment, the chancellor ordered Mr. Ravenstein to pay lifetime child support for his handicapped son, Ryan. The chancellor found that it would be unjust for the child to become a ward of the state upon attaining age 21 when the parents had the financial ability to care for him. John filed a R59 motion, but never appealed.
When Ryan turned 20, his mother filed a petition asking to be appointed Ryan’s conservator. John counterclaimed that he should be appointed conservator, or that both parents be appointed co-conservators.
When Ryan turned 21, John stopped paying child support to Elisha or Ryan, and deposited the money into the registry of the court. He also filed a MRCP 60(b) motion asking the court to find that the 1998 judgment was void as a matter of law, since it improperly extended his child support obligation beyond Ryan’s 21st birthday.
The chancellor ruled in Elisha’s favor on the conservatorship. She also overruled John’s plea for R60 relief. John appealed.
The MSSC, by Justice Waller, affirmed the chancellor’s ruling on the R60 issue, the rationale for which is worth a read. The court reversed and remanded on the appointment of the conservator because the court applied the wrong legal standard.
On the issue of the application of the code sections cited above, the court said:
¶32. After a thorough review of the supplemental briefs filed by the parties and the State, we find that it is unnecessary to address this issue. We find that John waived his right to challenge his child-support obligation when he failed to appeal Chancellor Lutz’s 1998 judgment and waited thirteen years to attack it collaterally. We reach this conclusion without deciding whether Sections 93-5-23 and 93-11-65 of the Mississippi Code should be interpreted to allow for the provision of post-majority support for adult disabled children. The constitutionality of Section 43-19-33(3), which does not apply to the parties here, is not relevant to the disposition of this case. See Kron v. Van Cleave, 339 So. 2d 559, 563 (Miss. 1976) (“It is familiar learning that courts will not decide a constitutional question unless it is necessary to do so in order to decide the case.”).
Thus, when he failed to appeal in 1998, John waived his right of review and the court was deprived of authority to address the issue.
Justice King wrote a brilliantly-reasoned dissenting opinion making a strong case that our law in this area is unconstitutional as a denial of equal protection. If you ever have a case involving this issue, he has written your brief for you.
I think this is an issue that must be addressed eventually. Ravenstein, however, proved not to be the vehicle due to its peculiar procedural posture.
Maybe when the right case goes up Justice King will write the majority opinion.
An Effect of Affirmance
July 9, 2014 § Leave a comment
Richard Dean filed an adverse-possession lawsuit, and the chancellor found that he failed to prove his case. Dean appealed, and the COA affirmed. He then filed a petition for cert to the MSSC, which the court denied.
Not to be deterred, Dean then filed a R60(b) motion with the chancery court that had originally denied his relief. The chancellor overruled his motion, and Dean once again appealed.
The COA again affirmed, in Dean v. Slade, et al., decided April 22, 2014. Jurisdictional nerd that I am, I found the court’s discussion of the effect of affirmance on trial court jurisdiction interesting enough to share. Here is what Judge James wrote for the court:
¶7. We first question whether the chancery court had the necessary jurisdiction to entertain Dean’s motion for reconsideration. Upon Dean’s initial appeal of the chancery court’s judgment, the chancery court lost jurisdiction. See City of Cleveland v. Mid-S. Assocs. LLC, 94 So. 3d 1049, 1050 (¶4) (Miss. 2012) (Jurisdiction is transferred to the appellate court once a notice of appeal is filed.). And because we affirmed the judgment, as opposed to remanding the judgment, and the Mississippi Supreme Court denied certiorari, jurisdiction did not return to the chancery court. See id. As the Mississippi Supreme Court noted in Collins v. Acree, 614 So. 2d 391, 392 (Miss. 1993):
From time immemorial, we have adhered to the basic and elementary rule that our appellate affirmance ratifies, confirms, and declares that the trial court judgment was correct as if there had been no appeal. Upon issuance of our mandate, the trial court simply proceeds to enforce the final judgment. The execution of the mandate of this Court is purely ministerial.
Although in Collins the supreme court noted that there may be occasions when application of Rule 60(b) may be appropriate following an affirmance and issuance of a mandate, we do not find such an occasion present here. There is nothing in Dean’s motion that suggests that the judgment should be altered following affirmance by this Court and denial of certiorari by our supreme court. As we discuss below, Dean’s allegation of earwigging was litigated prior to his initial appeal, and the evidence he purports to be newly discovered is merely impeachment evidence that was discoverable prior to trial. As the supreme court has stated, “Rule 60(b) is not an escape hatch for lawyers and litigants who had procedural opportunities afforded under other rules and who[,] without cause[,] failed to pursue those procedural remedies. Rule 60(b) is designed for the extraordinary, not the commonplace.” [Sabal Corp. v.] Howell, 853 So. 2d [122,] at 124 [(Miss. Ct. App. 2003)] (¶4) (quoting Bruce v. Bruce, 587 So. 2d 898, 904 (Miss. 1991)) …
So you can’t create an endless loop of litigation with post-trial motions ad infinitum and absurdum.
Dean is the subject of a prior post wherein I excoriated the practice of so-called (pre-) trial briefs.
Fixing Your No-Show
July 2, 2014 § 5 Comments
It can happen to the most diligent lawyer. Date of the trial is mis-calendered, or failed to get calendered, or you get busy doing something else and — oops — you are a no-show when the trial is scheduled to go.
A no-show is what happened in the case of Reed v. Reed, handed down by the COA June 24, 2014.
Jimmy Reed and his lawyer did not appear at the time appointed for Jimmy’s divorce trial. Jimmy’s lawyer believed that the case would not proceed as scheduled because, at the time, the chancellor was gravely ill. The lawyer even approached the district’s other chancellor and asked him to sign a continuance order in the belief that the case had been reassigned to him. The other chancellor demurred, however, and advised the lawyer to await appointment of a special judge by the MSSC.
The ill chancellor, however, did appear on the day set for the trial, as did Jimmy’s estranged wife and her attorney. The chancellor tried unsuccessfully for an hour to contact Jimmy’s lawyer, delaying the start of the trial. When he could not make contact the judge let Mrs. Reed proceed, and he rendered a judgment granting her a divorce on terms not very favorable to Jimmy.
Jimmy’s counsel learned what had transpired the next day when he received a fax from counsel opposite. He filed a timely R59 motion, explaining the reason for the failure to appear, and attacking the judgment as inequitable. The chancellor overruled the motion, and Jimmy appealed.
Citing Lee v. Lee, 78 So.3d 326, 328 (Miss. 2012), the court noted that ” … [a] divorce judgment entered when a party fails to appear is a special kind of default judgment. And to obtain relief from such judgments, absent parties are required to raise the issues in post-trial motions …” Since Jimmy had done exactly that, the COA accepted the case and reversed the chancellor’s ruling because he ” … failed to support his [equitable distribution] findings with any analysis, discussion, or mention of the Ferguson factors or the evidence before him …”
A few points to take away from this case:
- If you find yourself in a no-show predicament, timely file a R59 motion and ask for rehearing. Don’t stop at explaining your unattendance; attack in the motion every aspect of the judgment. If you don’t, you will probably be barred from raising any claims of error that you did not mention in your motion.
- The ASS-U-ME principle was at work here (ask somebody; they can explain). If I were Jimmy’s lawyer, I would have prepared for trial and shown up unless I had an agreed, signed, filed order of continuance in hand. I admit that I can be obsessive-compulsive about these things, but by assuming that the case was off, Jimmy was jeopardized unnecessarily. It all turned out okay, but it took an appeal to get Jimmy back to the starting line.
- When the other side is a no-show, make sure that you put enough proof into the record (and do make a record) to support the judge’s findings. Then insist that the judge address and analyze all of the factors that apply in your particular case. Jimmy’s appeal would have been for naught had the chancellor simply analyzed the proof through the filter of the Ferguson factors.
- I think most judges give an ordinarily diligent lawyer the benefit of the doubt in these cases. Everyone can screw up occasionally. On the other hand, lawyers who are chronically late or don’t attend to their business, or who make it a habit not to show up don’t get that favorable treatment. I have no idea why the chancellor in this particular case rejected the explanation for Jimmy’s non-appearance, so I can’t say whether the benefit-of-the-doubt principle was in play.
One nice subtlety in this case is Judge Ishee’s description of Jimmy’s post-trial motion as one for “rehearing,” as opposed to “reconsideration,” as is the common term for it. You can read another post on rehearing vs. reconsideration here.
The Better Chancery Practice Blog 