Three Cases of Note
June 30, 2014 § Leave a comment
The MSSC handed down three decisions in the past year or so that will significantly change your practice. You need to take note of each of them and study how you can use them to your client’s advantage or defend against their operation in cases you are handling.
The first case is Collins v. Collins, handed down May 9, 2013. This is the case that said, once and for all, that the demarcation line for valuation of assets in a divorce is to be determined by the chancellor, based on the facts in the case.
Why is this case significant? Because it expressly overrules the COA decision in Pittman v. Pittman that laid down the rule that entry of the temporary judgment was a bright line where accumulation of marital asset value ceased.
How can you use this case to your client’s advantage? Look at values and find the date to your client’s advantage, and then have your client testify why the judge should select the preferred date. For example, if your client’s 401(k) has greatly appreciated in value over the course of the litigation, pick an early point and develop proof about why that is the most equitable date. And vice versa for the other side.
A previous post about Collins is here.
The second case is Sanford v. Sanford, decided October 31, 2013. Sanford finally puts an end to the practice of dictating into the record consents to divorce and property settlement agreements in irreconcilable differences divorces. MCA 93-5-2 specifically requires written agreement, and a verbal acquiescence, even on the record, will not do the job.
Why is this case significant? It marks the demise of Bougarde v. Bougarde, the lone case in which the practice had been okayed. Bougarde gave rise to uncertainty among many judges and lawyers as to whether and when a settlement announcement might pass muster as a final agreement.
How can you use this case to your client’s advantage? Bring a laptop computer to court with you and be ready to capture a settlement in the form of a written agreemment. You get to do the drafting, which means that you get to choose the language. You will have the advantage over the dinosaurs who still don’t know what a laptop (computer) is.
A previous post about Sanford is here.
The third case is Huseth v. Huseth, rendered April 10, 2014. In this case, the MSSC returned to the principle that the child support statutory guidelines are just that — guidelines — and that it is up to the chancellor to set child support after first addressing the factors set out in Gillespie v. Gillespie, 594 So.2d 620, 622 (Miss. 1992).
Why is this case significant? In a long line of cases since 1992, our appellate courts have applied the child support statute as mandatory, and cases that deviated without the proper finding of basis for deviation were reversed. Huseth says that before looking to the statute the chancellor must first consider and address the Gillespie factors. The statute then supplies a guideline for the judge to apply his or her discretion. As a practical matter, I think most judges will follow the guidelines. But that’s not a sure thing post-Huseth.
How can you use this case to your client’s advantage? Be sure to put on proof of the Gillespie factors. Make sure your client’s 8.05 is credible, because it’s unlikely that chancellors are going to take it at face value that your client really is going $800 in the hole every month so that he can’t afford to support his children. You might hear the judge advise your client to quit smoking and drinking, sell his truck, and cut off his cable and internet service so that he can pay child support.
Some Language to Add to your Fiduciary Orders
June 17, 2014 § 7 Comments
In this district we have had a problem with fiduciaries having been appointed and never qualified by taking the oath and posting any required bond, and consequently not having Letters issued.
A fiduciary has no authority to act unless and until that person has qualified, which requires taking the oath, posting any required bond, and having Letters issued.
In one case in my court the person appointed used the order appointing him, without Letters of Administration ever having been issued, to sell a car, and he closed a couple of bank accounts. He sold the car and pocketed the money; who knows what he did with the funds. The lawyer who opened the estate spent a considerable sum out of his own pocket trying to recover the estate’s money. Not surprisingly, the perpetrator was judgment proof and can no longer be found on this planet.
In another case, a woman (not the mother) testified that she was guardian of the child, but when I ordered the insurance attorney to get the guardianship file, it showed that only an order appointing her had been entered, and she had never taken an oath or posted a required $10,000 bond. Incidentally, she testified that her lawyer had told her that the order was adequate, and she proceeded to use that apparent authority to negotiate a settlement of the child’s claim.
We came up with some language that we now require all attorneys to include in their orders opening estates, guardianships, and conservatorships. You may find this language useful in your own district, and even if you find it superfluous, you just might conclude that there’s no harm in including it.
Here it is:
IT IS FURTHER ORDERED AND ADJUDGED that if the fiduciary has failed to qualify by posting the required bond, if any, taking the oath, and having appropriate Letters issued as required by this order and the laws of the State of Mississippi within thirty (30) days of entry of this order, then the Chancery Clerk is hereby ordered and directed to notify the court immediately of such failure, and the court shall enter an order dismissing this civil action without prejudice and without further notice to the fiduciary, or attorney of record for the fiduciary, or any other parties who have entered an appearance in this civil action.
IT IS FURTHER ORDERED AND ADJUDGED THAT THIS ORDER DOES NOT AUTHORIZE [Name] TO ACT AS THE FIDUCIARY FOR [Name of ward or decedent] UNLESS VALID LETTERS [Testamentary, or of Administration, or of Guardianship, or of Conservatorship] ARE ATTACHED HERETO.
IT IS FURTHER ORDERED AND ADJUDGED that persons who use or accept this order without the attached Letters as court authority to act or conduct the affairs of the [ward or decedent] shall be subject to sanctions by this court.
Where Do We Go from Here?
June 11, 2014 § 2 Comments
I don’t know about you, but when I practiced I always wondered what to do with a case once it was remanded from the COA or MSSC. Do you start over? What is the effect of the appellate court’s ruling on the case on remand? Can the judge try the case on the record already presented? Can we amend to clear up some of the problems from the initial, unproductive attempt?
Do we start over?
Not exactly. The ancient law of Mississippi is that a remand restores the parties to the exact position that they occupied at the time of the reversed judgment or decree. Harris v. Newman, 6 Miss. 654 (1841). And where only a portion of the judgment is reversed, the effect is to place the parties in the same posture they were in before entry of that judgment, with the unaffected portions remaining in effect. Lloyd Wood Const. Co., Inc. v. Little, 623 So.2d 968, 972 (Miss.1993).
In a case where the appellate court reversed the granting of a divorce and remanded the case to the trial court, this would mean that the court would start from before entry of the reversed judgment, with the pleadings as they were at that point.
What is the effect of the appellate court’s instructions on the case on remand?
The appellate court’s ruling often includes instructions. These are the law of the case, and are binding on the trial court. In the preceding example, for instance, the appellate court might have directed that the court retry the issue of grounds for divorce to consider certain aspects, or, in another case, for the trial judge to consider and address Ferguson, Albright or Armstrong factors. I once represented a client in a case that we got reversed and remanded, with a COA finding that there had been a material change in circumstances adversely affecting a minor child, and directing the court to proceed accordingly. The remand trial would have proceeded on the assumption that two prongs of modification were assumed, and that best interest was all that remained, but we settled before that trial.
Are amendments permitted to clear up some of the problems from the initial, unproductive attempt?
Griffith addresses the point this way: “The remanding of a case to the trial court is for the purpose of a trial de novo, and the trial court has the same power to allow amendments to the pleadings …” as it had prior to the reversal. Griffith, Mississippi Chancery Practice, 2d Ed., 1950, § 697. See, also Pigford v. Ladner, 142 Miss. 435, 107 So. 658 (1926).
Can the judge try the case on the record already presented?
The purpose of the remand is for a new trial in which ” … the [parties] will be entitled to introduce … evidence anew, together with such additional evidence as [they] may desire to offer, and the defendants be allowed to meet the proof offered by the complainant … ” Clark v. Clark, 203 Miss. 28, 31, 33 So.2d 293 (1948). The scope of the trial on remand may vary considerably from the original trial.
But if the pleadings have not been amended, and the issues are the same, and the parties agree to submit the case to the court on the original record, with the judge to address omitted factors or other matters directed by the appellate court, then there would seem to be no problem. In fact, I read an opinion of the COA in the past year or so in which that very procedure was employed, and the COA on the second appeal merely recited that was done, without comment. I have not been able to find that case for this post.
Bound by the Record
June 5, 2014 § 4 Comments
It’s axiomatic that if you don’t introduce evidence to support a particular claim, your trial judge can not grant your client that relief.
It’s also axiomatic that, if you don’t make a record on a given point, you may not raise it for the first time on appeal.
Those two principles are what tripped up Donald Ainsworth in his attempt to reverse a chancellor’s ruling that based child support on all of his income, including annual bonuses and commissions from vehicle sales. Judge Carlton, writing for the COA in its opinion in Ainsworth v. Ainsworth, issued May 27, 2014, explained:
¶16. Donald argues the chancellor erred in determining his income for child support. Donald claims his yearly bonus and income from vehicle sale are not regular income for purposes of calculating child support. We first note Donald failed to raise the issue of his yearly bonus in his motion for reconsideration. It is well settled that an issue raised for the first time on appeal is barred from our review. See Ory v. Ory, 936 So. 2d 405, 409 (¶9) (Miss. Ct. App. 2006). Thus, we will only review Donald’s argument concerning income from vehicle sales.
¶17. The chancellor calculated Donald’s adjusted gross monthly income to be $4,562, which consisted of his salary, his bonus, and profits from vehicle sales. Following the statutory guidelines in Mississippi Code Annotated section 43-19-101(1) (Supp. 2013), the chancellor ordered Donald to pay $912.40, or twenty percent of $4,562, per month in child support. The chancellor noted that Donald admittedly failed to report income from any vehicle sales on his Rule 8.05 financial statement. The chancellor also noted Donald had failed to comply with her temporary order of December 2, 2010, which required Donald to report the sales of any vehicles to Melanie and to deposit the money from the sale of these vehicles into the registry of the court. During trial, Donald admitted that he made a small profit 3 from vehicle sales but purposefully did not report the sales of these vehicles, either to the chancery court or to the state or federal government for income-tax purposes. Donald also claimed he had no documentation by way of receipts or invoices for the sale of these vehicles. Donald testified he intended to continue selling vehicles and anticipated similar profits.
¶18. With respect to the chancellor’s finding, this Court cannot find the decision to include Donald’s profits from vehicle sales in her calculation of child support to be clearly erroneous. “The chancellor, being the only one to hear the testimony of witnesses and observe their demeanor, is the sole authority for determining the credibility of the witnesses.” Madden v. Rhodes, 626 So. 2d 608, 616 (Miss. 1993). Accordingly, we find this issue to be without merit.
The court also swatted aside: (1) Donald’s argument that the chancellor erroneously ordered him to pay a share of the children’s extracurricular activities; and (2) the court’s award of the tax exemptions to his ex-wife. Both arguments were rejected because he “failed to raise this issue in his motion for reconsideration.”
A few comments:
- A R59 motion is the vehicle you need to employ to bring to the chancellor’s attention matters on which you offered proof at trial, but were not addressed by the judge. Unless it is crystal clear from a reading of the trial transcript that you offered proof to support a given claim, you can not assume that the appellate court or the trial judge will view it that way. In this case, for instance, Donald may have thought that admitting his tax return into evidence was enough to preserve the tax exemption claim, but that evidence goes to many points in a contested divorce trial. File a R59 motion and specifically point to the proof in the record that supports your claim, and give the judge a chance to rule on it. That preserves the point for appeal.
- If you don’t offer any evidence at trial to support a claim, it won’t do you any good to file a R59 motion because the judge has to have evidence in the record to support her findings.
- If you don’t offer any evidence at trial to support a claim, you not only lose that point at trial, but you also are barred from raising it for the first time on appeal. I am constantly amazed at how many attorneys simply do not put on proof in support of their claims. A good example is the request that a child support payor maintain a life insurance policy. Usually the only evidence is a witness saying that she wants him to have a policy. There is no testimony about the cost, or whether the payor is insurable, or anything else that would influence me one way or the other.
- The only exception to the above is where there is newly discovered evidence that could not have been discovered in time to file a R59 motion. In that case, you need to file a R60(b)(3) motion.
I’ve mentioned here before that there is no “motion to reconsider” in our practice. That terminology is usually used to describe a R59 motion, but a R59 motion is actually for rehearing, or a new trial. Actually, though, there is such a thing as a motion to reconsider. Can you find it? [Hint: check out R60(c)].
A Rule 54(b) Dismissal With a Twist
June 3, 2014 § Leave a comment
We’ve talked here numerous times about the unappealability of a judgment that disposes than fewer than all of the issues pending before the court. If you type “54(b)” in that search box over there it will take you to the many posts on the subject.
The COA case of Newson v. Newson, handed down May 13, 2014, presents a scenario that just might apply in one of your cases, so you should take notice.
In May, 2011, the chancellor entered a judgment granting Lori Newson a divorce from her husband, Anthony, on the ground of adultery. On that day, Anthony’s attorney advised the court that his client had filed for bankruptcy, so the judge reserved ruling on alimony and equitable distribution until the status of the bankruptcy was clarified.
In March, 2012, the chancellor gave the parties the go-ahead to proceed. In August, 2012, the parties submitted a partial agreement, and the court made a partial ruling. The court stated that “the responsibility of the indebtedness of the respective parties, spousal support/alimony, attorney’s fees and/or costs owed by the parties would be reserved for a final hearing. Apparently there was another hearing, because in October, 2012, the court entered an order styled or referred to as a final order, granting Lori periodic alimony, and finding that Anthony was in arrears in the sum of more than $64,000 in alimony, for which he was in contempt. The judge left the record open for Lori’s attorney to present a statement of services rendered so that he could adjudicate attorney’s fees. Anthony filed a motion asking the court to reconsider (R59, I guess, since there is no such thing as a motion for reconsideration), which the court overruled. Anthony appealed.
The COA predictably ruled that, since the chancellor had left the record open without finally adjudicating the issue of attorney’s fees, and without certifying the case, the COA was without jurisdiction and dismissed the appeal.
Now, here’s the twist …
Quite often lawyers ask the court to combine into the final hearing the contempt issues that accrue during the pendency of a divorce. It’s not unusual for the court in such a situation to adjudicate finally all of the divorce issues — grounds, custody, child support, equitable distribution, alimony, attorney’s fees on the divorce — and then to treat the contempt issues. In addressing the contempt issues, the court many times will order that the contemnor do certain things to purge himself of contempt, and for the matter to be reviewed at a later date. Sometimes there is a second or even a third review hearing. In such a case, you are stuck with an unappealable divorce judgment until the trial judge finally adjudicates everything.
Unless …
- You file a R59 motion (within ten days of the original judgment) asking the court to add the “express determination that there is no just reason for delay,” per R 54(b), and directing entry of a final judgment on the issues of divorce, custody, equitable distribution, alimony, attorney’s fees on the divorce, leaving the contempt issues to take their own, separate course. Or …
- You could make a motion at the conclusion of your case that the issues be severed, and that the court make the R54(b) certification to be included in the final judgment.
Of course, you could ask the court not to combine the contempt issues in with the final divorce hearing in the first place, but most clients want the hourly billing and the courtroom time to end, so it’s usually more efficient from a time and law-weariness standpoint to get it all over with in one hearing.
This is one of those situations where you need to pay attention to where you are and how you got there. Once you realize you are faced with a judgment that may not be appealable for quite some time, you need to take steps to extricate your client from that bind.
How Opinions are Written and Circulated in the COA
May 28, 2014 § 7 Comments
We recently had the benefit of a series of posts in which Presiding Judge Kenny Griffis explained the COA’s deliberation process from assignment of an appeal by the MSSc through the granting of cert.
Now Judge Griffis continues with his description of the process by which opinions are written and circulated.
How Opinions are Written and Circulated
“A judge rarely performs his function adequately unless the case before him is adequately presented.” — Louis D. Brandeis, “The Living Law”
A. Circulation of cases from other panels
Each week, I receive opinions from other panels; we call this Full Court circulation. Each opinion in Full Court circulation has been through a panel conference and was approved by at least two Judges. My decision is whether I can rely on the panel’s work and join the opinion?
I start with the opinion. I read it carefully. If I have any question about the opinion, I get the briefs, the transcript, or the record to give the case my full consideration. Often, I read the cases cited in the opinion to determine whether I can agree with the analysis. When I am satisfied, I can vote to concur with the opinion.
If I disagree with the opinion or if I am unsure, I can talk to the writing Judge, other panel Judges or any of my colleagues to see if they share my concerns. I can also conduct my own research and review. Often, I may ask the writing Judge to consider a modification to the opinion to address my concern. If a modification is not sufficient, I may write a separate opinion and provide it to the writing Judge.
If I decide to write a separate opinion, I must write an opinion that accurately discusses my concerns with the Court’s opinion. My separate opinion is circulated again with the panel opinion. If the majority of the Court agrees with my separate opinion, I have to write a new majority opinion to recirculate once again.
B. Circulation of cases from my panels
Each week, I also receive opinions in panel circulation. These opinions were written by the other Judges on my panels.
In these cases, I have already read the briefs and the record excerpts. I often reread the briefs and my notes from my preparation for the panel conference. I will use the record excerpts to find the materials that I need from the record or ask for the transcript or the record to review before I sign off on the opinion. I will read the cases that I think are relevant and necessary for me to join the panel opinion or decide to write a separate opinion.
At the panel conference, I heard the assigned Judge’s presentation and recommendation. I asked questions and voted on the recommendation. When the panel opinion is circulated, I have to check the opinion to make sure that the assigned Judge wrote the opinion based on the panel’s vote and consistent with my concerns. If I have questions about the record, I must conduct an extensive review of the record.
If I have questions or concerns about the opinion, I communicate with the writing Judge to improve the opinion. For example, I may disagree with the factual presentation and ask that other facts be added. I may also ask that the opinion include another case or citation to different authority. If I concur with the result reached in the panel opinion, I want to help the writing Judge issue a correct, adequate, and thorough opinion for the Full Court’s consideration.
If I disagree with the opinion, I can write a separate opinion and provide it to the writing Judge. My separate opinion will be circulated along with the revised panel majority opinion (the opinion-writer may revise the opinion to address my separate opinion). If the majority of the panel changes, the case has flipped. I become the opinion-writer, and I have to write the majority opinion to circulate.
My separate opinion may not carry the day at panel but, upon Full Court circulation, the case may flip after all the Judges have voted. There remains the chance that my position may prevail, and I may have to write the majority opinion.
C. Cases initially assigned to me to write
As soon as a case is assigned to me as the writing Judge, my clerks start to work on the opinion. I assign one clerk to each case. I ask the clerk to read the briefs, review the record, and read the parts of the transcript that are relevant to this case. I expect my clerk to prepare a draft opinion.
I normally start to review a case with all of the briefs, the record excerpts and a draft opinion in front of me. I almost always start with the appellant’s brief. I try to read each brief all the way through at one sitting. If the trial judge has written an opinion, I will interrupt the reading of the briefs to read the trial judge’s opinion as soon as I can.
I then read and edit my clerk’s draft opinion. I want to make sure the draft opinion has an accurate statement of facts and procedural history. I may make some notes about changes that need to be made or facts that we may need to examine in the record. I want to make sure that the opinion has accurately stated the positions of the parties. I will come back later and edit the legal analysis.
When I am assigned as the writing Judge, I focus my review from the beginning on the opinion. I read the briefs to decide the case and produce an opinion. I immediately begin to consider which brief will help me, as a reference guide, to write the opinion.
I prefer to have a final opinion ready to present at the panel conference. I plan my panel presentation based on my draft opinion. If other Judges are concerned about an issue or topic, I can tell them how I plan to write it in my opinion. If another Judge is concerned about the presentation of a fact or case authority in the opinion, I note their concern and revise the opinion to address the concern. If there are no objections or concerns, my opinion will be ready to circulate as soon as possible.
III. Conclusion
Almost one hundred years ago, the Mississippi Supreme Court complained about the fact that the “burden of case law has become unbearable to both bench and bar.” Yazoo & M.V.R. Co. v. James, 108 Miss. 852, 67 So. 484 (1915). Mississippi case law is burdensome. I try to write short, clear and crisp opinions. There are many cases that require a longer, more detailed opinion.
I hope that this material will help you understand the Mississippi Court of Appeals. Thank you for the opportunity to serve on the Court of Appeals.
What Does One Do with the Alligators When One Can’t Drain the Swamp?
May 21, 2014 § 13 Comments
The old saw, “When you are up to your a$$ in alligators, drain the swamp,” has many useful and apt applications.
But what about when that swamp full of alligators is on your neighbor’s property, out of your control?
The latter is the situation that confronted Tom and Consandra Christmas. In 2003, they purchased a 35-acre tract of land adjacent to property owned by Exxon-Mobil (Exxon). According to the Christmases, it took them about four years to discover: (a) that the Exxon property was a waste-disposal site; and (b) that it was infested with alligators. As to (b), the Christmases claimed that their property value was impaired by the teeming gator population, and that they had lost two calves and a dog to the carniverous creatures.
They sued Exxon based on nuisance, seeking damages rather than abatement. Although they initially complained about contamination of their property, they dropped that claim. The sole remaining issue was whether the gators constituted an actionable nuisance. The Circuit Judge granted summary judgment in favor of Exxon, finding that the SOL had run, that there were no recoverable damages, and that Exxon could not legally be held liable for wild creatures on its property.
The Christmases appealed, and the COA reversed and remanded, concluding that there was a factual dispute. Exxon petitioned for cert, which was granted.
In the case of Christmas v. Exxon-Mobil, handed down May 15, 2014, the MSSC reversed the COA, reinstating and affirming the Circuit Court ruling. In its opinion, penned by Justice Lamar for the majority, the court said this:
¶9. The Christmases’ wild-alligator-nuisance claim is a case of first impression in Mississippi. However, other jurisdictions have held that private persons cannot be held liable for the acts of wild animals on their property that are not reduced to possession. See Sickmen v. United States, 184 F. 2d 616, 618 (7th Cir. 1950) (stating “a private person could not be held liable for the trespasses of animals which are ferae naturae, and which have not been reduced to possession, but which exist in a state of nature”); Roberts v. Brewer, 276 So. 2d 574, 582 (Ala. 1973). We agree. [Footnotes omitted]
¶10. Alligators are a protected species and are managed exclusively by the Mississippi Department of Wildlife, Fisheries, and Parks. Our Legislature has declared it illegal “for any person to disturb an alligator nest; to buy, sell, take or possess alligator eggs; to buy, sell, hunt, kill, catch, chase, or possess alligators or parts thereof except under permit from the Department.” Additionally, the Department narrowly defines what constitutes a “nuisance alligator” and strictly regulates the capture and removal of the same.Consequently, allowing wild alligators to constitute a private nuisance would subject landowners to liability for something over which they have no control. Exxon responded in the only legally permissible way it could to the Christmases’ alligator complaints: it called the Mississippi Department of Wildlife, Fisheries, and Parks and asked for the alligator population on its property to be reduced. Therefore, we hold that the presence of wild alligators “not reduced to possession, but which exist in a state of nature” cannot constitute a private nuisance for which a land owner can be held liable. Exxon is entitled to summary judgment. [Footnote omitted]
There must have been enough conclusive information in the affidavits of the parties for the court to find that there was no genuine issue of material fact there, although in the court’s recitation of the facts, it certainly does appear that there was a dispute whether the varmints had been brought in by Exxon’s predecessor in title or were wild. No matter, though, since there was no evidence that they were “reduced to possession” by the oil company.
I hope MDWFP has granted the Christmases a permit to abate with extreme prejudice any poodle-chomping nuisances that might stray onto their property. It’s so unpleasant to have to battle eight-foot-long reptiles while trying to enjoy a cookout in one’s own back yard.
How Cases are Decided at the COA: Part Four
May 19, 2014 § 4 Comments
Continuing with Judge Griffis’s paper …
4. Full Court Consideration
a. Circulation
Each panel opinion is circulated to the non-panel judges (i.e., the “Full Court”) for consideration and vote. The briefs are not circulated with the final panel opinions.
When a panel opinion is in Full Court circulation, each non-panel Judges decides what materials they need to review to vote on the opinion. Each Judge may obtain the briefs, the record, the transcript or any other document filed in the case for their review and consideration. Each Judge may also talk to the panel Judges about the facts, issues, or the panel’s decision. With electronic filing of briefs, the briefs will be available for each non-panel Judge to access.
Each non-panel Judge is expected to vote to concur, specially concur, concur in result only, concur in part and in result, dissent, or concur in part/dissent in part. Just like a panel Judge, each non-panel Judge may also write a separate opinion or ask that the case be considered by the Court’s en banc conference. Each non-panel Judge may also offer suggestions or modifications to the opinion-writer.
b. Separate Opinion
If a non-panel Judge indicates the intent to write a separate opinion, the Judge is expected to prepare a separate opinion promptly. When the separate opinion is finished, it is sent to the majority opinion-writer to allow for revisions in the original opinion. The writing Judges then finalize their opinions.
c. Re-circulation
The majority and separate opinions are then circulated to all Judges for a vote. If the majority does not change, the final opinions are ready to be handed down.
If the majority changes (flips), the author of the separate opinion becomes the opinion-writer and must promptly produce a majority opinion. The other Judge may then change their opinion to a separate opinion. The flipped opinions are again circulated for a final vote to determine the Court’s final opinion.
The circulation and recirculation of opinions are an effort to arrive at a final decision of the Court. Although it does not occur often, an opinion may be circulated three or more times, with three or more opinions.
If the Court’s vote is tied at five-five, the trial court is considered to be the tie breaking vote. On a tie vote, the Court’s decision is to affirm the trial court. The Supreme Court has no obligation to consider a case that resulted in a tie at the Court of Appeals, but this is certainly a reason that favors consideration of the case by the Supreme Court.
5. Hand Down
The Court of Appeals’ final decisions are released or “handed down” every Tuesday at 1:30 p.m. on the Court’s website.
D. Rehearing
A motion for rehearing may be filed within fourteen days of the decision. MRAP 40(a). The motion shall state with particularity the points of law or fact which the court has overlooked or misapprehended and shall contain such argument in support of the motion as movant desires to present. The motion should be used to call attention to specific errors of law or fact which the opinion is thought to contain; the motion for rehearing is not intended to afford an opportunity for a mere repetition of the argument already considered by the court.
A response to the motion for rehearing may be filed within seven days of the motion. The failure to file a response within this time period waives the right to respond but does not confess the arguments made in the motion.
There is no oral argument on a motion for rehearing. A party can only file one motion for rehearing.
A motion for rehearing must be filed before a party may petition the Supreme Court for certiorari review of the Court of Appeals decision.
A motion for rehearing is limited to the consideration of whether the Court (1) overlooked a material fact in the record or controlling authority that would require a different result, and (2) misapplied or erroneously construed controlling authority.
E. Certiorari
The Supreme Court may consider the appeal of a Court of Appeals decision on a writ of certiorari. The grant of certiorari is discretionary and requires the vote of at least four Supreme Court Justices. Certiorari is to be granted to resolve “substantial questions of law of general significance.” MRAP 17(a).
A petition for a writ of certiorari must be filed and served within fourteen days of the Court of Appeals’ decision on the motion for rehearing. The petition can have a maximum of ten pages and must state the “precise basis on which the party seeks review by the Supreme Court.” MRAP 17(b). A response may be filed within seven days.
The Supreme Court must decide whether to grant certiorari within ninety days of the response. MRAP 17(e).
Note: The second part of Judge Griffis’s paper is “How Opinions are Written and Circulated,” which will be posted soon.
“Pay no Attention to That Man Behind the Curtain”: How Cases are Decided at the COA, Part One
May 14, 2014 § 5 Comments
Like the great and mighty Wizard of Oz, appellate judges wield immense power from on high, and their ways are shrouded in mystery.
COA Presiding Judge Kenny Griffis set out to de-mystify how the court goes about its business, and put the details in a paper he delivered to the judges’ meeting last Fall. I’ve gotten his permission to republish it here, for your benefit, verbatim. Due to the length, it will take several posts to get through.
Here’s Part One:
A Texas appellate judge once noted the perception “that appellate judges watch from on high the legal battle fought elow, and when the dust and smoke of battle clear they come down out of the hills and shoot the wounded.” Black v. State, 723 SW2d 674, 677, n.1 (Tex.Crim.App. 1986)(Opinion, P.J. dissenting). Lawyers hear this and laugh, nervously. Trial judges hear it and laugh out lud, some even shout “amen.”
More than one trial judge has told me that they do not understand how appellate courts decde cases. This article should help you understand how the Mississippi Court of Appeals decides a case and writes the opinion.
I. How a decision is made at the Court of Appeals
A. Background
The Court of Appeals was created in 1993 to address the heavy workload of the Supreme Court. The purpose of the Court is to reduce delays in the resolution of appeals.
The Court consists of ten judges elected from five designated Court of Appeals districts. The judges are elected from a district, but they exercise statewide authority. Judges serve eight year terms, and their elections are staggered. The Chief Judge is selected by the Chief Justice of the Mississippi Supreme Court and serves a four year term.
Of the current judges, five were initially elected, and five were initially appointed. The current judges have also served as: chancellors (2), circuit judge (1), county judge (1), municipal judge (2), justice court judge (1), prosecutor (3), and supreme court law clerk (2).
B. Jurisdiction
Every appeal is filed with the Mississippi Supreme Court. The Supreme Court then decides which cases to assign to the Court of Appeals. The Supreme Court may assign a caseto the Court of Appeals at any time. There is no limit on the time that a case may be assigned to the Court of Appeals.
The jurisdiction of the Court of Appeals is limited to cases that are “deflected” or assigned by the Supreme Court. The Court of Appeals is often considered an “error correction” court. The Supreme Court may not assign cases that involve: (1) the imposition of the death penalty; (2) utility rates; (3) annexations; (4) bond issues; (5) election contests; or (6) a statute held unconstitutional by the trial court.
Miss. Code Ann. §9-4-3(1). The Supreme Court must retain all cases involving attorney discipline, judicial performance, and certified questions from federal court.
MRP 16(d). The Supreme Court will also retain cases that involve: (1) a major question of first impression; (2) fundamental and urgent issues of broad public importance requiring prompt or ultimate determination by the Supreme Court; (3) substantial constitutional questions as to the validity of a statute, ordinance, court rule, or administrative rule or regulation; and (4) issues on which there is an inconsistency in the decisions of the Court of Appeals or the Supreme Court or conflict between the decisions of the two courts.
The Supreme Court has a process to decide which cases to assign to the Court of Appeals. The Supreme Court retains about one of every five cases that are eligible for assignment. The Supreme Court routinely assigns cases within certain clearly defined categories. For example, the Court of Appeals will be assigned all cases that involve workers’ compensation, domestic relations, post-conviction relief, and adminidtrative agency decisions.
THe decision to assign a case to the Court of Appeals is final. No motion to reconsider an assignment may be filed. Only the Supreme Court can change the assignment of a case, and this happens rarely. When it does, the assignment is changed because the case was assigned to the Court of Appeals in violation of section 9-4-3(1).
The decisions of the Court of Appeals are final. The Supreme Court may review the Court’s decisions only by writ of certiorari. MRAP 17. Certiorari may be granted upon the vote of at least four Supreme Court Justices. Miss. Code Ann. §9-4-3(2).
Next: The Decision Process from initial Assignment Through Oral Argument
Rejection and the GAL
May 8, 2014 § 3 Comments
Most of the guardians ad litem (GALs) with whom I talk react noticeably when the chancellor does not accept or follow their recommendations. Reactions range from mild puzzlement to indignation.
It has never been the rule in Mississippi that the chancellor is required to follow the GAL’s recommendations or accept the GAL’s conclusions. The rule that applies when the judge opts to go in a different direction was stated in the case of Floyd v. Floyd, 949 So. 2d 26, 29 (¶ 8) (Miss. 2007), which said:
This Court has held that a chancellor shall at least include a summary review of the recommendations of the guardian in the court’s findings of fact when the appointment of a guardian is required by law. S.N.C. v. J.R.D., Jr., 755 So. 2d [1077,] 1082 [(Miss. 2000)]. Furthermore, if the court rejects the recommendations of the guardian, the court’s findings must include its reasons for rejecting the guardian’s recommendations. Id. While a chancellor is in no way bound by a guardian’s recommendations, a summary of these recommendations in addition to his reasons for not adopting the recommendations is required in the chancellor’s findings of fact and conclusions of law. Id., Hensarling v. Hensarling, 824 So. 2d 583, 587 (Miss. 2002).
So, the requirements are that the judge’s ruling must include a summary review of the GAL’s recommendations, and must include its reasons for rejecting them.
In the MSSC case of Darnell v. Darnell, handed down April 24, 2014, the court held that the chancellor’s failure to follow the dictates of Floyd did not in and of itself warrant reversal, although the case was reversed on another ground. Here is how Justice Coleman’s opinion addressed the issue:
¶40. “The chancellor was in no way bound to follow the recommendation made by the [guardian ad litem].” Hensarling v. Hensarling, 824 So. 2d 583, 587 (¶ 10) (Miss. 2002). Under the Court’s standard of review, the Court does not find that the chancellor’s determination was manifestly wrong or that he abused his discretion.
In any case where a GAL is appointed to represent a child, the chancellor’s role as fact-finder requires the evidence presented by the GAL, as well as all other relevant evidence, to be considered and given such weight as the chancellor determines it deserves. Thus, the question to be answered by the Court is not . . . whether the chancellor ignored the GAL’s recommendation; but rather, whether the evidence in the record supports the chancellor’s decision.
Lorenz v. Strait, 987 So. 2d 427, 431 (¶ 16) (Miss. 2008) (internal citations omitted). In the case sub judice, the chancellor considered the guardian ad litem’s recommendations and conducted his own analysis of the Albright factors. The chancellor was the fact-finder, and his holding made clear the reasons for his decision. While it is the better practice for a chancellor to describe specifically why he or she disagrees with a guardian ad litem’s findings, the Court cannot find that the chancellor in the instant case abused his discretion in reaching the result he reached. Therefore, the issue is without merit.
In Darnell, the MSSC explained how the chancellor had done a thorough Albright analysis that addressed pertinent points of the GAL report. It found that the chancellor’s basis for not following the GAL report was clear in his Albright analysis.
I don’t see this case as pointing a new direction or changing the rules. What the court found here was that, although the chancellor did not expressly say why he was rejecting the GAL’s recommendations, his rationale was clear enough in his Albright findings so that the case did not require reversal on that point.
You should read this case for its analysis of the hearsay rule and its applicability in child sexual abuse cases. It’s particularly noteworthy for its exposition on the principle that hearsay may be introduced for purposes other than to prove the matter asserted.
The Better Chancery Practice Blog 