The Final Word: No Written Agreement = No ID Divorce
November 12, 2013 § 5 Comments
We visited the COA case of Sanford v. Sanford here, back in May of 2012. Sanford is a case where the chancellor allowed the parties to dictate a settlement agreement into the record, accepted it as a final settlement of all issues, and granted an irreconcilable differences divorce.
The COA, in a case I described as a “Shortcut to Failure,” reversed, finding that, since there was no written agreement as required by the statute, the divorce had to be set aside.
But, lo, the MSSC granted cert in the case and took it into its bosom, where it has reposed since, piquing speculation that, perhaps, the Supremes were prepared to take a different tack. After all, if the high court intended to leave the COA decision undisturbed, why grant cert, right?
The speculation grows out of the outlier case of Bougard v. Bougard, 991 So.2d 646 (Miss.App. 2008), which did approve a chancellor’s grant of a divorce based on an announced settlement in open court, without a separate, written agreement. The case goes against a long line of holdings to the contrary, including the most recent, Reno v. Reno, which we posted about here.
So, the COA had reversed Sanford, holding that a written agreement is a sine qua non for an ID divorce. On cert, surely the MSSC pointed a new direction, didn’t they?
Well, in a word: no.
In Sanford v. Sanford, rendered October 31, 2013, penned by Justice Pierce, the high court affirmed the COA, saying that, “Because the requirements of neither [MCA] Section 93-5-2(2) nor Section 93-5-2(3) were completely met here, we affirm the judgment of the Court of Appeals, reverse the judgment of the Chancery Court of Lamar County, and remand the case for further proceedings consistent with this opinion.”
That would appear to put the final, end-stop punctuation to the procedure in which the assembled parties and lawyers try to announce a settlement on the record to obtain an irreconcilable differences divorce. No written agreement = no ID divorce. No written consent = no ID divorce. It’s that simple.
This would also seem to be the last gasp of Bougard.
The Thing About Judges …
November 7, 2013 § 5 Comments
Phillip Thomas has an excellent post on his blog about judges and how they are perceived by lawyers who come before them. Although it is framed in the context of the epic Eaton v. Frisby litigation, there is truth there for every lawyer who ever has to deal with a judge, which would be an overwhelming percentage, I am sure.
Most often, in my experience, lawyers view judges based on memorable experiences, good or bad, and not on the judge’s total body of work. For instance, the judge who yells at you for wasting an afternoon on a meaningless motion is perceived quite differently from the judge who kindly calls you into chambers and points out that, in the future, you should not waste everyone’s time. Those are what sticks in the mind, not the whole history of mundane, routine matters that the judge handles by the dozens day by day.
As Mr. Thomas points out, some lawyers become dark conspiracy theorists about judges. They see a personal animus in every adverse ruling. They attribute bad results to the judge’s dislike for where the lawyer or client came from, or the color of suit he wore, or that the judge hates lawyers who represent certain kinds of clients.
The thing about judges is that we are just like you, with our own personality quirks, points of view, ways of approaching things, likes and dislikes, patience and impatience, and on and on. Each judge has to make a decision based on the law and the facts, no matter how well or poorly presented, no matter how thorough or slapdash the job done by the lawyers, no matter whether either lawyer bothered to come equipped with some authority for a decision. Faced with that smorgasbord of factors, some judges react like Saint Francis, and some like Jack the Ripper.
It’s true that some judges are more energetic than others, some are more intelligent than others, and some are more persnickety than others. But what has impressed me since I took the bench is that all judges — within those parameters, and within the sphere of their own personalities — are dedicated to getting it right.
We don’t always get it right, though. Judges are not perfect, and we are not required to be. That’s why we have appellate courts.
Thank goodness.
Relief Pending an Appeal
November 6, 2013 § 2 Comments
We’ve talked here before about the concept that the trial court loses jurisdiction during an appeal to amend, modify or even reconsider its judgment.
That rule, however, is not absolute.
In the case of McNeese v. Grant, decided by the MSSC on October 10, 2013, the appellate court was called upon to decide whether the chancellor had erred when he ruled that a R60(b) motion was untimely filed, and that the trial court had no jurisdiction, because the movant, Kenton McNeese, had perfected an appeal from the judgment that was the subject of the motion. Here’s what the MSSC said in its opinion written by Chief Justice Waller:
¶7. Ordinarily, once a notice of appeal is filed, jurisdiction transfers from the trial court to the appellate court, thereby removing the trial court’s authority to amend, modify, or reconsider its judgment. Corporate Mgmt., Inc. v. Greene County, 23 So. 3d 454, 460 (Miss. 2009) (citations omitted). However, Kenton requested relief under Rule 60(b) of the Mississippi Rules of Civil Procedure.
¶8. This Court has explained that “the adoption of Miss. R. Civ. P. 60 conferred ‘limited concurrent jurisdiction on the trial court to grant relief from a judgment even though an appeal has been perfected.’” Griffin v. Armana, 679 So. 2d 1049, 1050 (Miss. 1996) (citing In re Estate of Moreland v. Riley, 537 So. 2d 1345, 1347 (Miss. 1989) (citation omitted)). Rule 60(b) allows a party to seek relief from a judgment or order in instances of “mistake, inadvertence, newly discovered evidence, fraud, etc.” M.R.C.P. 60(b). “So long as [Kenton] complied with the requirements of Rule 60(b), perfection of his appeal did not divest the trial judge of authority to vacate [his] judgment.” Griffin, 679 So. 2d at 1050. A party may file his Rule 60(b) motion directly with the trial court not more than six months after the judgment[;] however, once “the record has been transmitted to the appellate court and the action remains pending therein,” leave to make the motion must be obtained from the appellate court. M.R.C.P. 60(b).
The judge had ruled that Kenton’s motion was untimely filed, based on the language of MRAP 4(d), which reads, in part:
If any party files a timely motion of a type specified immediately below the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding. This provision applies to a timely motion under the Mississippi Rules of Civil Procedure. . . (5) for relief under Rule 60 if the motion is filed no later than 10 days after the entry of judgment. A notice of appeal filed after announcement or entry of the judgment but before disposition of any of the above motions is ineffective to appeal from the judgment or order, or part hereof, specified in the notice of appeal, until the entry of the order disposing of the last such motion outstanding. Notwithstanding the provisions of Appellate Rule 3(c), a valid notice of appeal is effective to appeal from an order disposing of any of the above motions. [Emphasis added]
The italicized language would seem to impose a 10-day limitation on the filling of the motion, as the chancellor ruled. The Supreme Court, however, disagreed, saying at ¶9, “This Court finds that Rule 4(d) applies to the suspension of the deadline by which to file a Notice of Appeal and does not create a deadline by which to file a Rule 60(b) motion.”
I recommend that you read the opinion, because there are some other aspects of interest in this pro se appeal. If you handle any appeals, you need to be familiar with this case.
This is, by the way, Kenton’s second pro se appeal. You can read about his first effort here.
Two Birds with One MRCP 54(b) Stone
August 5, 2013 § Leave a comment
You’ve read here over and over that when the chancellor adjudicates fewer than all of the pending issues in a case, no direct appeal can be taken unless the judge certifies under MRCP 54(b) that there is no just reason to delay an appeal. In the absence of such a certification, the unhappy party’s only recourse is to file a petition with the MSSC for an interlocutory appeal.
The legal landscape is littered with the wreckage of appeals that unsuccessfully ignored the gravitational pull of R54(b), only to come crashing back to where they started.
The latest example — with a twist — is Estate of Drake: Drake v. Drake, decided by the COA July 30, 2013.
Benjamin Lee Drake sued his uncle, Bennie Larry Drake, alleging that Bennie Larry had unduly influenced Benjamin Lee’s father, before the father’s death, to change the beneficiary of his life insurance policy from Benjamin Lee to Bennie Larry, and to convey a parcel of land to him. Benjamin Lee asked the court to set aside both the change in beneficiary and the land conveyance.
In the course of the litigation, the chancellor dismissed the life insurance relief for failure of Benjamin Lee to file his complaint within three years of discovery of his uncle’s fraudulent conduct, as required in MCA 15-1-49 and 15-1-67.
The chancellor left the real property issue pending, which meant that he had resolved fewer than all of the pending issues. He did it with no MRCP 54(b) certification, and he made it clear on the record that his ruling was not final. Nonetheless, he told Benjamin Lee that, if he “wish[ed] to take an interlocutory appeal,” the “same was granted.”
Now here is where things get a tad peculiar.
Benjamin Lee did file a petition for an interlocutory appeal under MRAP 5. But he did not stop there. He also filed a separate, general notice of appeal under MRAP 4. So he had two simultaneous appeals from the same judgment.
As is the norm, the MRAP 4 case was assigned to the COA, and the MSSC kept the MRAP 5 case.
I’ll let the COA tell us what transpired from there:
¶6. “[F]ind[ing] that [Benjamin Lee] filed a notice of appeal from the same trial order,” the supreme court dismissed his separate petition for permission for an interlocutory appeal under Rule 5. At that point, recognizing the other appeal—the Rule 4 non-interlocutory appeal—was not from a final order, Bennie Larry filed two motions to dismiss the general appeal. But the supreme court denied these motions as “not well taken.”
¶7. The appeal has since been assigned to this court. But since the order under review is—as Judge Grant and both parties acknowledge—non-final, we lack jurisdiction to grant an interlocutory appeal and must dismiss. See Lundquist [v. Todd Constr., LLC], 75 So. 3d [606] at 608 [(Miss. 2006)](¶12).
Ergo … Presto Changeo, and … Voila! … two appeals are magically transformed into zero appeals. And the appellant is right back where he started.
Can You Ask for Rehearing, or to Alter or Amend a Judgment, Before There is a Judgment?
August 1, 2013 § 3 Comments
It’s fairly common in this court in a complicated case for me to issue an opinion in a case and direct that one of the attorneys prepare a judgment corresponding with it. The opinion is is issued on one date, and the judgment, as a result, is entered perhaps two weeks later.
It’s also fairly common for a lawyer, once the opinion has been issued, to file an MRCP 59 motion for rehearing in the interval between issuance of the opinion and entry of the judgment.
It does make a difference when you file your post-trial motion. A motion filed within 10 days of entry of the judgment is treated as a R59 motion, and one filed later than 10 days is treated as a R60 motion. City of Jackson v. Jackson Oaks Limited Partnership, 792 So.2d 983, 985 (Miss. 2001). Since the subject matter that may be addressed under each rule is markedly different, you can see that it makes quite a difference when your motion is filed.
So how is the court to treat your motion if you file it even before a judgment is entered? Is your motion a nullity?
The COA addressed the issue in Street v. Street, 936 So.2d 1002 (Miss. App. 2006), where the court stated:
¶ 16. The timing of post-trial motions under Rule 59(a) and Rule 59(e) is the same; such motions must be made “not later than ten days after the entry of judgment.” M.R.C.P. 59(b); 59(e). Both Stephen’s Rule 59(e) motion for reconsideration and his Rule 59(a) motion for a new trial were filed after the chancellor’s bench opinion but before the final judgment was entered. Carla argues that Stephen’s motion for reconsideration was untimely under Rule 59(e) because it was filed before the final judgment was entered rather than within ten days after the entry of the final judgment. For that reason, she contends that the motion should not have been considered by the chancellor.
¶ 17. It appears that the question of whether a Rule 59(e) motion is timely if filed before the entry of a final judgment is one of first impression in Mississippi. However, “[t]he Mississippi Rules of Civil Procedure are patterned after the Federal Rules of Civil Procedure, and we have looked to the federal interpretations of our state counterparts as persuasive authority.” Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1215(¶ 32) (Miss.2001). Federal authority is settled that a Rule 59 motion is timely though filed after the court makes findings of fact but before the entry of a final judgment. See 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 2812 at 82 n. 44 (1973).
¶ 18. As previously stated, the timing of a Rule 59(e) motion to alter or amend a judgment and a Rule 59(a) motion for a new trial is identical; both motions must be made “not later than ten days after the entry of judgment.” M.R.C.P. 59(b); 59(e). In Hilst v. Bowen, 874 F.2d 725, 726 (10th Cir.1989), the Tenth Circuit observed that “courts and commentators generally agree that this ten-day limit sets only a maximum period and does not preclude a party from making a Rule 59 motion before a formal judgment has been entered.” The Hilst court found that the appellant’s motion for reconsideration was timely though made after the lower court rendered a memorandum and order but before the court entered a final judgment. Id. In concluding that a motion for a new trial filed before entry of judgment was timely, the Fifth Circuit stated that “[the] language [of Rule 59(b) ] does not explicitly require that a motion for new trial be made after judgment is entered, and it has not been interpreted to include this requirement.” Greater Houston Ch. of the ACLU v. Eckels, 755 F.2d 426, 427 (5th Cir.1985); see also McCulloch Motors Corp. v. Oregon Saw Chain Corp., 245 F.Supp. 851, 853 (S.D.Cal.1963) (finding that, by the rule’s use of the words “shall” and “not later than,” the ten days after the entry of judgment established an outside, not an inside, limit for the timing of a motion for a new trial). Based on this authority, we find that Stephen’s Rule 59(e) motion was timely filed after the chancellor’s rendition of her bench opinion, though before the final judgment was entered.
Street was cited in the later case of Gary v. Gary, 84 So.3d 836 (Miss. App. 2012):
¶ 12. Because Michael filed his motion to reconsider five days before the November 29, 2010 entry of the nunc pro tunc order, this court considers his motion for reconsideration as a motion for new hearing or, alternatively, to amend or alter the judgment under Rule 59. M.R.C.P. 59(a), (e) (requiring both motion for new trial and a motion to alter or amend the judgment “be filed not later than ten days after entry of the judgment”); see Street v. Street, 936 So.2d 1002, 1008 (¶ 17) (Miss.Ct.App.2006) (finding a motion to alter the judgment filed after the court made findings of fact but before the entry of a final judgment was timely under Rule 59).
Thanks to attorney David L. Calder of the Child Advocacy Clinic at the University of Mississippi School of Law
The Power to Bind the Client
July 30, 2013 § 5 Comments
When you accept the responsibility to represent a client and enter an appearance or otherwise hold yourself out as representing a party, the court will presume that you have the authority to speak for and bind that party.
That principle came into play in the COA case of Williams v. Homecomings Financial Network, Inc., handed down July 23, 2013.
In that case, Samuel and Carolyn Williams retained a law firm to sue their mortgage company for fraud. They were two of a group of 16 plaintiffs with similar claims. Their attorney, Martin, signed the complaint initiating the suit, holding herself out as counsel for the Williamses. Another attorney in the firm, Nelson, participated.
Terms of settlement were reached, and the attorney signed an agreed judgment of dismissal without prejudice. All of the plaintiff signed the settlement documents except Samuel and Carolyn Williams, who refused to sign. Their attorney withdrew from representation.
Homecomings filed suit to enforce the settlement agreement, and the chancellor ruled in favor of the mortgage company, whereupon the Williamses appealed.
The main point raised by Samuel and Carolyn on appeal was the admission into evidence of the deposition of their former attorney, which they argued contained inadmissible hearsay. For our purposes, though, it’s the authority of counsel and the power to bind the client that concerns us. Here are some points from Judge Carlton’s COA opinion, which affirmed the chancellor:
- ¶13. [From the chancellor’s opinion] “There is a long-standing principle in [the] law that settlements are contracts which are enforceable according to their terms. An attorney is presumed to have the authority to speak for and bind his client. Parmley v. 84 Lumber [Co.], 911 So. 2d 569 (Miss. Ct. App. 2005). Whether or not an attorney has agreed to a settlement on behalf of his client is a question of fact. Id.
- ¶17. In this case, as previously noted, Martin expressed on the record through deposition testimony that he had the authority to bind the Williamses to the terms of the settlement upon learning from Nelson of the Williamses’ alleged acceptance of the proposed settlement. As also previously noted, the record reflects that Martin signed the complaint against Homecomings on behalf of the Williamses. We thus find that the record provides substantial evidence supporting Martin’s authority as counsel of record to bind the Williamses to the agreement. We also find substantial evidence exists to support the chancellor’s order enforcing the settlement agreement. See Parmley, 911 So. 2d at 573 (¶19). Furthermore, Martin’s testimony that he possessed authority as the Williamses’ attorney to accept the settlement terms, coupled with Martin signing the complaint on behalf of the Williamses, demonstrates that Martin indeed possessed the authority to enter into a settlement and bind the Williamses to the terms of any such agreement with Homecomings. Fairchild, 254 Miss. at 265, 179 So. at 187.
In other words, when you sign the pleadings and act like a lawyer with authority to act in a case, the court is going to presume that you have that authority.
And what are the evidentiary implications of that presumption when the court is called upon to make that finding of fact? Here is what the COA said as to the issues in this particular case:
- ¶16. Mississippi Rule of Evidence 801(d)(2)(C) provides that a statement is not hearsay if “[t]he statement is offered against a party and is . . . a statement by a person authorized by him to make a statement concerning the subject[.]” Our supreme court has held that “[a]n attorney is presumed to have the authority to speak for and bind his client.” Parmley, 911 So. 2d at 573 (¶19); see also Pace v. Fin. Sec. Life of Miss., 608 So. 2d 1135, 1138 (Miss. 1992); Fairchild v. Gen. Motors Acceptance Corp., 254 Miss. 261, 265, 179 So. 2d 185, 187 (1965). Additionally, we recognize the determination of “[w]hether or not the attorney has agreed to a settlement on behalf of the client is a question of fact.” Parmley, 911 So. 2d at 573 (¶19).
So, when you speak on behalf of the client under color of the client’s authority, your statements will be admissible as non-hearsay. Attorney-client privilege obviously restrains the scope of admissibility, but does not proscribe it.
You can help avoid factual disputes over the scope of your authority by using representation agreements that clearly define it. As the case progresses, document key discussions with your client via followup letters. Get your client to sign off on orders and agreements that will affect the outcome of the case.
Clarifying Judgments Clarified
June 24, 2013 § Leave a comment
You may recall Eddie and Fannie Cotton’s first trip to the COA. In Cotton v. Cotton, 44 So.2d 371 (Miss. App. 2010), the court affirmed the chancellor’s equitable distribution in a case where the judge found the marriage void as bigamous. The case is of interest not only for that point, but also because the chancellor did not apply — or even mention — the Ferguson factors in her division. It’s a case you should go back and read when you have time.
Part of that affirmed 2010 division was an award of 40% of Eddie’s retirement from employment with Solae LLC during the void marriage. It seems that Eddie omitted the retirement account on his 8.05 financial statement, mentioning it only in his testimony, so the judge did the best she could do and simply awarded the percentage based on his employment with the company.
The problem with that award, as anyone who has dealt with the backwash of a divorce can tell you, is that no plan administrator will honor a QDRO that does not specifically and accurately identify the plan. So, a judgment that says something like “40% of any retirement plan that Eddie participated in while employed with Solae LLC,” is going to be met with a firm “uh-uh” by the plan administrator, which is exactly what happened here. What to do?
Fannie’s lawyers scurried back to court and asked the judge to “interpret” her prior judgment to provide that the retirement account was with the Bakers and Confectioners Union (B&CU), which was the actual plan in which Eddie participated during his employment with Solae LLC.
The chancellor granted the motion, concluding that the prior judgment had intended to award Fannie 40% of whatever retirement fund Eddie had participated in while employed with Solae LLC, and since Eddie himself had failed to provide the specific information, the court could and should clarify its prior ruling to specify that it pertained to the B&CU account, which was, in fact, the retirement account he had accumulated during his Solae employment.
Eddie appealed, taking the position that the chancellor impermissibly changed and broadened the scope of the original judgment.
In Cotton v. Cotton, handed down December 11, 2012, the COA affirmed, concluding that the trial court’s order ” … is neither an improper reconsideration nor an alteration of the prior judgment … ” and was not an abuse of discretion.
I call this decision to your attention for several points:
- This case highlights a way you can solve that QDRO dilemma that so many practitioners face when trying to put the divorce judgment in effect. It’s not that uncommon to get that letter from the plan admin that denies your client any relief.
- It seems that a subpoena duces tecum instanter might just have produced the information that was needed. I believe that I would have authorized it from the bench.
- I wonder why the accurate account information was not fleshed out in discovery? Remember this: if you come to trial with incomplete information, the chancellor will only have two ways to proceed: (1) stop everything and make you go back and do what you should have done in the first place; or (2) proceed and do the best she can with the faulty record before her. A caveat: before you put the burden on the judge to do your work for you, go back and read the MSSC decision in Collins v. Collins. It might persuade you to go a different route.
The real story here is not so much that chancellors can go back and elucidate their judgments to make them do what they were intended to do, but also that lawyers need to be diligent to foil the opposing party’s efforts to conceal and evade disclosure. If you leave it solely up to the judge, you might be disappointed in the outcome.
Oops … and a Further Oops in a Partition Suit
June 18, 2013 § 2 Comments
Sometimes in the euphoria of settlement, when the bright sunlight of concord and goodwill seems to dispel the gray clouds of discord and conflict, in our optimistic pursuit of a written agreement, we lose sight of the details, where devilment always lurks, and out of that inattention things can come dizzyingly unravelled, and then totally unhinged in a most discombobulating way.
That’s more or less what happened at the trial level in the case of Powell v. Gregory, decided by the COA on May 14, 2013.
Siblings Julia Powell, Mary Margaret Gregory, and Bennie Evans believed that they owned a “forty” that had been their parents’ property, and which they came to own via heirship. The “forty” actually consisted of 37.98 acres, or so they thought.
Julia had acquired fee simple title to 2.02 acres from her parents, located in the NW corner of the “forty,” where a home she occupied was located.
The three could not agree on how to divide the property, so the sisters sued Bennie, asking for partition in kind of the surface acreage only.
After suit was filed, the siblings learned that what they thought was a “short forty” of some 38 acres was actually a “long forty” of 47.64 acres, nearly ten acres more than they had anticipated.
[Author’s note: Notice how what everybody believes to be true keeps turning out not to be so?]
After some negotiation, the parties presented the chancellor with an agreed judgment that included the words, “This is a final judgment” (Note: for the uninitiated, that language is required by local rule in that district in any judgment finally adjudicating the ultimate issue). The judgment had attached a county ownership plat showing the general designation of division, with Julia and Mary Margaret to receive 5.94 acres each, and Bennie to receive the remaining 35.64 acres. The parties agreed also to division of taxes and survey expenses. Excepted from the agreement would be Julia’s separate two-acre tract.
The chancellor signed the agreed judgment. No one appealed.
When the surveyor went out, he discovered that Julia’s house was actually 20 feet west of the western border of her “excepted property,” amidst the “heir property,” and not located on her excepted parcel. Julia refused honor the agreement. A year after the original agreed judgment was entered, Mary Margaret filed an action for contempt, and Julia in response filed for relief under MRCP 60(b)(6).
The chancellor ruled that the original agreed judgment was contractual and enforceable. He ordered that the description to Julia’s 2.02 acres be amended by deed to be where she said it was, and directed that the remaining acreage be divided among the three by acreage as originally agreed. He denied Mary Margaret’s request to hold Julia in contempt. Julia filed a battery of motions under R59(a), 59(e) and 60, all of which were overruled. She appealed.
So, did the COA’s decision finally untangle the knot? Well, in a word, no.
Judge Fair’s opinion indicates that the court would have liked to, but for one dispositively complicating factor:
¶20. Based on the record before us, the chancellor would have been within his discretion in interpreting the intent of the parties in the agreed final judgment and fashioning a remedy to carry out that intent. However, we must reverse the second final judgment because of the issue of necessary parties. On November 4, 2010, Belissa, Julia’s daughter, recorded a warranty deed from Julia to herself dated November 3, with a description almost (because of what Julia claimed was a scrivener’s error creating a description that does not “close”) exactly matching that of the two acres described in her mother’s deed. So far as the record reveals, the court was not informed of the existence of Belissa’s deed until it was submitted into evidence at the hearing two months later.
So with a couple more runaway cars added to the trainwreck, back the parties go, now to bring Belissa aboard for Round Three of their unhappy saga that began more than five years ago with that hapless partition complaint. Unless something new is injected, my guess is that the outcome at ground level will be pretty much the same this next go-round as it has been up to now.
Clients always seem to be in such sure command of their facts, even when they have no legitimate basis therefor. When you take what they say at face value, especially in a matter as detail-and-fact dependent as a property case, you get what you pay for, so to speak.
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