THE CONSERVATOR AND THE STATUTE OF LIMITATIONS
March 20, 2013 § Leave a comment
Angela and Brian filed a joint complaint for divorce on the sole ground of irreconcilable differences. While the 60-day waiting period was running, Angela was involved in a car wreck, suffering a broken neck and brain damage. Because she was no longer able to handle her business, a conservator was appointed and authorized to proceed with the divorce action.
On January 10, 2000, the trial court entered the final judgment of divorce. It included a provision that Brian reimburse Angela for $5,500 she had paid toward purchase of an automobile. In a subsequent proceeding brought by the conservator for enforcement of the judgment, Brian was ordered to pay the money, and the court awarded a judgment with interest, entered January 9, 2001.
In January, 2011, nearly ten years after the 2001 judgment, Angela’s conservator sought and obtained a writ of garnishment. After back-and-forth series of rulings, the trial court cancelled the writ because the judgment had expired due to the statute of limitations in MCA 15-1-47. The court rejected the conservator’s claim that Angela’s incapacity had tolled the statute of limitations as provided in MCA 15-1-59 because the “conservator is fully authorized to employ attorneys and bring actions on the [ward’s] behalf,” citing USF&G v. Conservatorship of Melson, 809 So.2d 647, 654 (Miss. 2002).
Angela’s conservator appealed.
In the case of Conservatorship of Lewis v. Smith, rendered March 5, 2012, the opinion has some key observations about the duties of a conservator when it comes to enforcing and protecting the rights of the ward:
¶8. Lewis contends that the chancellor erred in finding that section 15-1-59 does not toll the statute of limitations in regard to the judgment’s expiration under section 15-1-47. Under section 15-1-47, a judgment lien expires after seven years from the entry of the judgment.
¶9. In her August 26, 2011 order, the chancellor found that section 15-1-59 was “inapplicable to the present matter as it concerns persons with disabilities and minor children; when a conservator was appointed to protect the legal rights of the mentally incapacitated Angela Ann Lewis, thus invoking the provisions of Miss[issippi] Code Ann[otated] [s]ection 15-1-53.” Mississippi Code Annotated section 15-1-53 (Rev. 2012) states:
When the legal title to property or a right in action is in an executor, administrator, guardian, or other trustee, the time during which any statute of limitations runs against such trustee shall be computed against the person beneficially interested in such property or right in action, although such person may be under disability and within the saving of any statute of limitations; and may be availed of in any suit or actions by such person.
It is important to note that “the duties, responsibilities and powers of a guardian or conservator are the same.” Harvey v. Meador, 459 So. 2d 288, 292 (Miss. 1984). See also Miss. Code Ann. § 93-13-259 (Rev. 2004).
¶10. From the language of the order, the chancellor found that the right vested in the conservator and not in Lewis. Lewis contends that this contention is contrary to Weir v. Monahan, 67 Miss. 434, 7 So. 291 (1890). The Mississippi Supreme Court in Weir found that section 15-1-53 only applies “where the legal title to property or the right of action, at law or in equity[,] is in the guardian, and not the infants.” Weir, 67 Miss. at 455, 7 So. at 296. The court noted that “[w]hen the legal title to the property is vested in a trustee who can sue for it, and fails to do so within the time prescribed by law[,] . . . his right of action is barred . . . .” Id.
¶11. Under Mississippi Code Annotated section 93-13-38(1) (Rev. 2004), “All the provisions of the law on the subject of executors and administrators[] relating to settlement or disposition of property limitations . . . shall, as far as applicable and not otherwise provided, be observed and enforced in all guardianships.” Also, Mississippi Code Annotated section 93-13-38(2) (Rev. 2004) states: “The guardian is empowered to collect and sue for and recover all debts due his said ward . . . .”
¶12. From the language of section 93-13-38, the conservator had a fiduciary duty to pursue the $5,500 owed to Lewis. Therefore, the right of action was in the conservator and not Lewis. The conservator was appointed prior to the entry of the judgment of the divorce. The conservator brought the motion to hold Smith in contempt for failure to pay. It was the conservator’s fiduciary duty to file a writ of garnishment when Smith failed to pay. Under the plain language of section 15-1-53, if the right is in the guardian, in this case the conservator, the statute of limitations runs against the guardian and not the ward.
¶13. The right in action is in the conservator, therefore making the savings clause of 15-1-59 inapplicable, because “[t]he purpose of the savings statute is to protect the legal rights of those who are unable to assert their own rights due to disability.” Rockwell v. Preferred Risk Mut. Ins. Co., 710 So. 2d 388, 391 (¶11) (Miss. 1998). Lewis has a court-appointed conservator who is able to assert rights on her behalf. Therefore, Lewis does not require, nor is subject to, the protections provided by the saving clause.
If you are representing a conservator — or a guardian, executor or administrator, for that matter — make sure that your client is doing what is necessary to protect the legal interests of the ward or beneficiary, and is not allowing statutes of limitation to run.
the burden of responsibility of a fiduciary is a heavy one, as I have emphasized here before. This case points up yet another way in which your fiduciary may make a “perilous mistake” in handling the ward’s business. It’s your job to steer your client in the right path, and to help avoid the common mistakes that fiduciaries commit.
A MINORITY CONUNDRUM
March 19, 2013 § 2 Comments
I posted here about a case pending in my court in which a lawyer had filed a motion to void two agreed judgments for custody that had been executed by a 19-year-old mother. The basis for his motion was that the mother lacked the legal capacity to execute the judgments, and that they were not binding on her in any way.
The lawyers have settled the case, and the now-22-year-old mother has signed an agreed order that has the effect of supplanting the previous agreed judgments. So the concern about her legal capacity is moot in that case.
Still, the state of the law has me concerned. I did not find any authority for an unmarried minor to enter into an agreed judgment in a case of this sort. Neither did my staff attorney or even other judges who took the time to answer my query on our listserv. I found no authority, either, for subsequent ratification or approval by the court, although other states have addressed the ratification issue.
The reason for my concern is that a married minor is considered emancipated for the purpose of dealing with divorce, custody and support, but an unmarried minor is in a legal limbo vis a vis his or her offspring. Is there any legal or policy reason, given Mississippi’s high rate of unmarried parenthood, why we do not go ahead and recognize that young, unmarried parents, at least in the 18-21 age group, should not also be considered emancipated for the purpose of dealing with child custody and other parentage issues? Young people in that age group are emancipated by law to deal with their choses in action, so why do we not emancipate them by statute to deal with their parentage issues?
I wish that the legislature would look at this issue in light of the reality many of see every day in our state: children are having children. We have to have effective ways to deal with that.
MRCP 59 AND APPEALABILITY IN CHANCERY
March 13, 2013 § 3 Comments
In Forbes v. St. Martin, et al., handed down March 5, 2013, from the COA, the appellants’ first issue on appeal was “Whether the chancellor erred in denying the post-judgment motion of the [appellant] pursuant to MRCP 59.” Judge Griffis, for the majority, said:
¶15. There is actually only one issue in this appeal — whether it was error to grant the summary judgment. A chancellor’s judgment is final and appealable, and there is no requirement that a post-judgment motion be filed to perfect an appeal from chancery court.
¶16. In chancery court, a Rule 59(a) motion may be filed: (i) “for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi,” or (ii) for a new trial so “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 and conclusions, and direct the entry of a new judgment.” A Rule 59(e) motion would allow the chancellor to “alter or amend the judgment.”
¶17. Forbes’s brief contends that the chancellor erred in the denial of the motion for reconsideration. “[A] motion to set aside or reconsider an order granting summary judgment will be treated as a motion under Rule 59(e).” Brooks v. Roberts, 882 So. 2d 229, 233 (¶15) (Miss. 2004) (citation omitted). “[T]he movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.” Id. (citation omitted). A chancellor’s decision to deny a Rule 59 motion is reviewed for abuse of discretion. Brooks, 882 So. 2d at 233 (¶15). Forbes has offered no argument that the chancellor abused his discretion in the denial of the motion for reconsideration. Accordingly, we find no error as to the second issue, and we only consider whether it was proper for the chancellor to grant a summary judgment as to all claims. [Emphasis added]
I’ve made the assertion here before that an MRCP 59 motion is not required as a prerequisite to an appeal in a chancery court proceeding where the case was tried to the judge. A case tried to the judge without a jury does not require such a motion. That is the opposite of the rule when a jury has rendered a verdict in circuit and county courts; in those cases a motion for a directed verdict or JNOV under MRCP 50 would be required as a prerequisite to appeal.
The language above is also a good survey of what must be shown to get relief under R59.
WHEN IS THE RETURN DOOR TO THE COURT ROOM LOCKED?
March 12, 2013 § Leave a comment
Some lawyers are confused about when and how a judgment precludes a return trip to court by operation of res judicata. The confusion is somewhat understandable, since in chancery court we often deal with return trips for modifications and contempts. It’s been discussed here before.
There are chancery cases, however, such as divorce judgments as to property and grounds, property disputes, suits for rescission and specific performance, actions to contest wills, and the like where res judicata can operate as a bar — or not.
The COA case of Rodgers v. Moore, et al., decided last November by the COA, is one of those cases. In 2004, the Moores filed suit to remove cloud on title against Mary Rodgers. In 2006, the suit was dismissed by the court without prejudice pursuant to MRCP 41(d) for failure to prosecute. In 2007, the Moores filed yet another suit, and Mary Rodgers, proceeding pro se, answered that the suit should be dismissed as res judicata due to the prior dismissal. There are some other procedural wrinkles in the case that do not directly pertain to my point here.
The chancellor ruled that the 2004-filed proceeding was not res judicata, and Mary appealed.
Judge Roberts, writing for the court that affirmed the chancellor’s ruling, gave us a handy exposition on the principles of res judicata and why they did not bar the 2007 suit:
¶10. Rodgers first asserts that the chancery court erred in finding that the doctrine of res judicata was not triggered in the current case. The doctrine of res judicata requires the presence of four identities before it is applicable, and the absence of any of the identities is “fatal to the defense of res judicata.” Hill v. Carroll Cnty., 17 So. 3d 1081, 1085 (¶10) (Miss. 2009) (citations omitted). The four identities are as follows: “(1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made.” Id. (citing Harrison v. Chandler-Sampson Insurance, Inc., 891 So. 2d 224, 232 (¶24) (Miss. 2005)). Additionally, a fifth requirement is that there must be a final judgment adjudicated on the merits. See Harrison, 891 So. 2d at 232 (¶22); Beene v. Ferguson Auto., Inc., 37 So. 3d 695, 698 (¶7) (Miss. Ct. App. 2010). If these five things are established, then res judicata bars any claims that were brought in the prior action or could have been brought in the prior action. Hill, 17 So. 3d at 1084-85 (¶¶9-10).
¶11. Rodgers submits that the four identities are present. She also claims that the chancery court’s dismissal of the case filed in 2004 without prejudice was a final judgment on the merits. According to Rodgers, the plaintiffs in the first suit failed to show ownership of the property, thereby failing to establish superior title. We agree with Rodgers’ contention that the first, second, and fourth identities are present; however, we do not find that the third and fifth identities are necessarily present. The first identity is met because the subject matter of both suits was to remove a cloud on the title of a specific piece of land. The second is the identity of a cause of action. This “is found where there is a commonality among the ‘underlying facts and circumstances upon which the present claim is asserted and relief sought.’” Studdard v. Pitts, 72 So. 3d 1160, 1162 (¶9) (Miss. Ct. App. 2011) (quoting Riley v. Moreland, 537 So. 2d 1348, 1354 (Miss. 1989)). The causes of action in both cases are the same. Fourth is the quality of the persons against whom the claim is made, which are also the same.
¶12. In dispute are the third identity and the fifth requirement. The third identity is whether the parties in both actions are the same or are in privity with the original parties. See Little v. V & G Welding Supply, Inc., 704 So. 2d 1336, 1339 (¶15) (Miss. 1997); Williams v. Vintage Petroleum, Inc., 825 So. 2d 685, 689 (¶17) (Miss. Ct. App. 2002). It is clear that the original parties to the suit are also parties in the second suit. However, the second suit contains several additional parties not in the original suit. What is unclear from the record is whether these additional parties were in privity with the original parties; nonetheless, the determination of this identity is not dispositive, as the fifth requirement is clearly not met.
¶13. The fifth requirement is that there has been a final adjudication on the merits in the original suit. We do not agree with Rodgers’s claim that the chancery court’s dismissal without prejudice of the 2004 case was an adjudication on the merits. In its October 11, 2010 opinion, the chancery court stated that the original case was dismissed “without ruling on any of the issues brought by either party[.]” In Williams, 825 So. 2d at 688 (¶12) (citing Stewart v. Guar. Bank & Trust Co. of Belzoni, 596 So. 2d 870, 872-73 (Miss. 1992)), this Court stated: “A voluntary dismissal taken without prejudice is not an adjudication on the merits and does not operate as res judicata in subsequent suits.” See also Ladnier v. City of Biloxi, 749 So. 2d 139, 156 (¶69) (Miss. Ct. App. 1999). The chancery court’s dismissal of the 2004 case without prejudice was not an adjudication on the merits. The dismissal was on the ground that the “pleadings did not establish the [p]laintiffs as the proper parties to the litigation.” No issue involving the ownership of the disputed property was addressed by the chancery court; therefore, the chancery court was correct in finding that res judicata did not bar the second suit.
An MRCP 41(d) dismissal, then, is not a dismissal on the merits, is without prejudice, and will not operate as res judicata, because it is not a final judgment disposing of all claims in the case. Neither is a voluntary dismissal or any dismissal without prejudice. Don’t overlook, though, that a statute of limitations may run in the time that the case lies dismissed.
Modifications and contempts are not barred by res judicata because (1) the court retains jurisdiction to consider modification of certain issues, and to enforce its judgments, and (2) they are not a relitigation of the prior action, and they are based on and limited to matters occurring post the final judgment.
This case does not add anything substantive to my previous post on the subject, other than some additional authority that you can cite as needed, but it does illustrate the character of judgment that is necessary to operate as a bar.
DESULTORY THOUGHTS ON JUDGMENT INTEREST
March 7, 2013 § Leave a comment
- It is error, as a matter of law, for a chancellor not to award interest on a judgment for past due support. Caplinger v. Julian, decided February 12, 2013, by the COA, citing Ladner v. Logan, 857 So.2d 764, 772-73 (Miss. 2003).
- MCA 75-17-7:
All judgments or decrees founded on any sale or contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered. All other judgments or decrees shall bear interest at a per annum rate set by the judge hearing the complaint from a date determined by such judge to be fair but in no event prior to the filing of the complaint.
- Each unpaid child support payment begins to accrue interest from the date it is due, and the chancellor has no authority to abrogate or disallow interest as to each payment for equitable or other reasons. Dorr v. Dorr, 797 So.2d 1008, 1015 (Miss. App. 2001).
- It was not error for the chancellor to set interest on unpaid child support at 8% per annum, even though prevailing interest rates were considerably lower when assessed. The payments were due for a span of years, and interest rates fluctuated during the time that the payments vested. Houck v. Ousterhout, 861 So.2d 1000, 1003 (Miss. 2003).
- 8% interest found to be reasonable. Adams v. Adams, 591 So.2d 431, 436 (Miss. 1991); and Howard v. Howard, 913 So.2d 1030, 1036 (Miss. App. 2005).
- A 3% interest rate was upheld. The COA found no authority to hold that particular rate to be an abuse of discretion or manifestly in error. Brawdy v. Howell, 841 So.2d 1175, 1180 (Miss. App. 2003).
- In Beasnett v. Arlidge, 934 So.2d 345, 349 (Miss. App. 2006), the court upheld an award of 8% per annum assessed on past-due child support in a TPR case.
- MCA 75-17-1 sets legal rates of interest and finance charges on contracts and accounts. As of today, the legal rate on “notes, accounts and contracts” is 8%. The parties may, however, contract for a greater rate within the limits set out in the statute.
Although interest rates of between 3% and 8% have been upheld, it would seem to me a logical argument that 8% is still a reasonable rate, even in these depressed-interest times, since that is the rate that the legislature has set and maintained in effect for “notes, accounts and contracts.”
IF YOU CAN’T TRUST A TRUSTEE, WHO CAN YOU TRUST?
March 5, 2013 § Leave a comment
“In God we trust; all others pay cash.” — Graffiti
A trust is aptly named. Its grantor literally trusts the trustee to carry out his or her wishes with respect to the money or property placed in the trustee’s care.
In the case of Smiley v. Yllander, handed down December 11, 2012, by the COA, the chancellor found at trial that Jeanette Smiley had created a trust when she deeded her home and 140 acres to her nephew, Gary, and his wife, Mary Ann. The deed by which she conveyed the property included this provision:
This conveyance is executed trusting that Gary Lamar Smiley will follow the dictates of my Last Will and Testament with regard to the disposition of the above described property. In the event, however, that said Gary Lamar Smiley should predecease me, then, in that event, his executor/administrator shall follow the dictates and dispose of said property according to my Last Will and Testament.
By her express language, then, Jeanette trusted Gary to deal with her estate as directed in her will.
Alas, as sometimes happens, things did not go as Jeanette had envisioned. Gary and Mary Ann clearcut timber on property specifically reserved in the will for other family members, and the other family members sued, not only for the wrongful timber removal, but also alleging that Mary Ann had misappropriated over $100,000 of Jeanette’s money.
The chancellor found that the deed created a trust and awarded the plaintiffs $292,000 for removal of the timber, and another $44,000 for misappropriation.
Gary and Mary ann appealed.
The COA reversed and remanded the trust issue because the chancellor was unclear about the standard of proof that she applied. Judge Maxwell’s opinion is a good primer on the law of creation of trusts and the burden of proof required for each. Here’s what he wrote:
¶11. Generally, trusts are classified under two broad categories: (1) express trusts and (2) implied trusts. Express trusts arise from a party’s manifestation of an intention to establish such an agreement and are created by a trust instrument. Miss. Code Ann. § 91-9-103(a) (Supp. 2012). If the trust holds real property as an asset, the trust agreement must be in writing and signed by the grantor. Miss. Code Ann. § 91-9-1 (Rev. 2004); Alvarez v. Coleman, 642 So. 2d 361, 366-67 (Miss. 1994).
¶12. While an express trust must be written, implied trusts differ in that they arise by implication of the law or are presumed from the circumstances. Mississippi recognizes two types of implied trusts: (1) resulting trusts and (2) constructive trusts. A resulting trust “is designed to give effect to the unwritten but actual intention of the parties at the time of the acquisition of title to the affected property.” In re Estate of Gates, 876 So. 2d 1059, 1064 (¶17) (Miss. Ct. App. 2004) (quoting Robert E. Williford, Trusts, 8 Encyclopedia of Mississippi Law § 73:2, at 422 (2001)). A constructive trust is a judicially imposed remedy used to prevent unjust enrichment when one party wrongfully retains title to property. McNeil v. Hester, 753 So. 2d 1057, 1064 (¶24) (Miss. 2000). The primary difference between the two is that “in a resulting trust, the acquisition . . . is mutually agreeable[,] and the inequity arises out of the trustee’s subsequent unwillingness to honor the terms of the parties’ original agreement”; whereas a constructive trust may be imposed when “acquisition of title is somehow wrongful as to the purported beneficiary[.]” Simmons v. Simmons, 724 So. 2d 1054, 1057 (¶7) (Miss. Ct. App. 1998).
¶13. Here, the chancellor found a trust existed but did not distinguish the particular type. Though both parties insist the chancellor imposed a constructive trust, or something akin to it, a plain reading of her order shows she likely found Jeanette had intended to create an express trust by executing the deed “trusting” Gary would follow the dictates of her will—which did in fact leave the ninety-acre tract to the plaintiffs. According to the chancellor, the deed “was subject to the terms of the will and did not serve to vest fee title in the Smiley Defendants.” That the chancellor likely believed an express trust, rather than implied trust, arose is further supported by her finding that Gary and Mary Ann had “knowingly and willfully violated the explicit terms of that trust.”
¶14. But regardless of the type of trust implicated, “to establish a trust, the evidence must be more than a mere preponderance. The proof must be clear and convincing.” Lee v. Yeates, 256 So. 2d 371, 372 (Miss. 1976) (emphasis added). And here, it is not at all obvious whether this standard was employed. We note that in the chancellor’s order indicates she found:
Plaintiffs have met their burden of proof by a preponderance of the evidence on all necessary elements and are entitled to recover for the wrongful removal of the timber from the acres devised to them under the terms of the will. Even though the property was conveyed to the Smiley Defendants, such conveyance was specifically subject to a trust for Plaintiffs’ benefit, and the Smiley Defendants knowingly and willfully violated the explicit terms of that trust. (Emphasis added).
While the chancellor may have indeed considered the trust issue separately under the clear-and-convincing-evidence standard, she did not specifically say so in her order. This omission, coupled with the chancellor’s reference to the preponderance standard when describing the burden of proof “on all necessary elements,” supports our decision to remand to ensure the chancellor considers the trust issue under the clear-and-convincing-evidence standard. See Estate of Langston v. Williams, 57 So. 3d 618, 622 (¶17) (Miss. 2011).
Aside from the nifty trust-law-in-a-nutshell aspect of this case, it illustrates what can happen when the trial judge applies the wrong standard of proof or is unclear whether she applied the right standard. You can avoid this kind of result by offering to do proposed findings of fact and conclusions of law that set out and cite authority for the appropriate standard. Or, if you aren’t that industrious, timely file an MRCP 59 motion asking the judge whether she really meant “clear and convincing” rather than preponderance, and cite a supporting case or two. It might just save you a retrial.
ANOTHER WAY TO FLOP ON APPEAL
February 28, 2013 § 4 Comments
Vinh Nguyen entered into a contract with Dustin and Roslyn Gifford to purchase real estate. When Vinh refused to purchase the property, the Giffords sued for breach of contract.
Vinh filed no responsive pleading to the suit and made no appearance, and the Giffords applied for entry of default. They obtained a default judgment in which the court ruled that the parties had entered into a valid contract, but that Vinh had failed to perform, so that the Giffords were entitled to specific performance, or $375,000, plus $2,000 earnest money, if Vinh failed to perform within thirty days, plus nearly $17,000 in attorney’s fees. The judgment was to be reduced if the Giffords sold the property.
Four months later Vinh filed a motion to set aside the judgment, which the court denied. The court did, however, reduce the judgment by $275,000, because the Giffords had sold the property.
Vinh appealed, raising four issues that certainly appear to have some meat on them:
- Whether Vinh’s contact with the Giffords’ lawyer to tell him that the claim was contested triggered the 3-day notice requirement of MRCP 55(b);
- Whether there was valid service of process on him;
- Whether a lawsuit was proper due to an arbitration agreement; and
- Whether Roslyn Gifford was entitled to a judgment since she never signed the contract.
Some quite pithy points, to be sure. Any of the first three could undoubtedly lead to a reversal and remand if upheld. So how did the appellate court resolve them?
Well, we’ll never know for sure, because Vinh’s brief on appeal cited no authorities at all. Not a single one. The COA, in a 9-1 decision, pointed out that “Failure to cite authority in support of claims of error precludes this Court from considering the specific claim on appeal.” The court found that it was procedurally barred from considering the unsupported issues on appeal, and affirmed the chancellor’s ruling.
It should go without saying that the purpose of an appeal is to persuade the learned appellate judges that the trial judge has made some error of law. To do that, one must cite some supportive case law, statute, regulation, court rule, learned treatise, or other recognized legal authority that bears up one’s position.
Without that authority, your client will go the way of Mr. Vinh, to that dark place where one goes to ponder the burden of a $117,000 judgment, with interest, and without further recourse, except against his own lawyer.
YOU MIGHT WANT TO RECONSIDER YOUR MRCP 59 MOTIONS
February 7, 2013 § 1 Comment
Judge Griffis tells of a time that he filed a “Motion to Reconsider” in federal court after a judgment that he took issue with had been entered. Judge Lee, in his ruling, devoted the first page or two to pointing out that there is no such motion.
When I heard the story, I took exception and pointed out that even under our pre-MRCP practice there was a motion to reconsider, and that the MRCP even continues our pre-rules practice. I added that lawyers even today file motions to “reconsider.”
Well, I was wrong. Sort of.
MRCP 59 says that a new trial may be granted ” … 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.”
That’s rehearing, not reconsideration.
To discover the reasons for which rehearings were granted in pre-rules suits in equity, I consulted Griffith, Mississippi Chancery Practice, 2d Ed., 1950, which is the bible of pre-rules practice. Under that ancient practice, all the business of the court was conducted during the terms. All judgments became final on the last day of the term, unless the judge entered an order during the term that set a matter for hearing on a day outside the term (“in vacation”), and orders and decrees could not be altered or amended by the chancellor after the term ended except for some very limited circumstances.
During the term, all decrees and orders issued by the chancellor, even if filed, were considered to be “in the bosom of the court,” and could be changed, altered, withdrawn or vacated by the court at any time up to the close of the term, either on its own motion, or on motion of any party to the suit. The request to the court during the term was a “motion for rehearing,” and some of the bases mentioned by Griffith are: on the court’s on motion to vacate or modify its decree; reargument to point out an overlooked point of law; urging a different result based on something in evidence that the court failed to mention; and newly-discovered evidence (now an MRCP 60 matter).
So “the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi” include not merely a naked request for a new trial, but also a request for the chancellor to go back and study the evidence and the law again, to see whether perhaps a different result would have been reached. The judge could then, during the term, alter the decree or order, or withdraw it and direct a new trial.
That smells a lot like both reconsideration on the one hand, and rehearing on the other.
Even today in chancery court, lawyers may know under the rules that they are asking for rehearing, but they know, too, that they are asking for reconsideration. Out of curiosity, I asked my staff attorney to pull up the R59 motions that had been filed in the preceding year. Of the dozens filed, only a couple were styled or even asked for “rehearing.” Nearly every one was styled “Motion for Reconsideration,” or asked for reconsideration. That’s reconsideration, not rehearing.
Thus, I was sort of right, and sort of wrong in response to Judge Griffis. Right in the sense that the common usage is to call a R59 motion a request for reconsideration, and to ask for reconsideration. Wrong because the rule and pre-rule practice call for rehearing.
It’s not a big deal because the MSSC said many years ago after the MRCP went into effect that judges are to look to the substance of the motion, and not the form, and MRCP 8(f) mandates that pleadings be construed so as to do “substantial justice.” Thus, what you call the motion, and whether you ask for rehearing or reconsideration, is less important than clearly invoking MRCP 59.
Most “Motions for Reconsideration” are just that. They ask the court, “Please, take a look at this one more time and, please, change your mind.” That’s not in keeping with the rehearing language of R59, but it definitely captures what the pre-rules practice was. As the COA said in Brown v. Weatherspoon, which is a R60 case, but the principle is the same, “Finality should yield to fairness.”
Don’t worry too much about getting caught with your proverbial pants down in an appeal because you called your R59 motion one for reconsideration, rather than rehearing. It appears that reconsideration is the vogue word for our appellate judges, too …
- Check this out from the COA decision in Estate of Ristroph v. Ristroph, decided in January, 2013: “John then filed a motion to reconsider under Mississippi Rule of Civil Procedure 59. While awaiting the chancellor’s decision on John’s Rule 59 motion, Paul filed a motion for summary judgment with respect to the other alleged inter vivos gifts, contending these claims were also time-barred under section 15-1-49. The chancellor denied John’s motion to reconsider the timeliness of his petition to set aside the warranty deed, and John appealed the denial to the Mississippi Supreme Court.”
- And this from the COA in Rodgers v. Moore, et al., decided in November, 2012: “According to the briefs, plaintiffs filed a motion to reconsider the dismissal with the chancery court. The chancery court entered an order on March 8, 2007, denying the motion to reconsider.”
I am sure there are more, but you get the picture.
STRIKE THREE — YER OUT
February 6, 2013 § Leave a comment
In Estate of Ristroph v. Ristroph, handed down by the COA on December 4, 2012, we confront yet again the mantra that an appeal from a judgment that disposes of fewer than all of the issues before the trial court, and which does not include a certification under MRCP 54(b), will be dismissed. In this case, the principle lands home with a triple whammy.
As you may recall, I’ve described MRCP 54(b) here as the “Graveyard of Appeals.” That’s because of the rule’s requirement that, if the trial judge directs entry of a judgment as to fewer than all of the issues, he or she must include a finding that there is no just reason for delay, and directing entry of a final, appealable judgment as to the issues decided. The trial judge’s certification must have a reasonable basis and must not be an abuse of discretion. If the judgment lacks the certification, the appellate court will lack jurisdiction because an appeal lies only from a final judgment (MRAP 5 does provide for an interlocutory appeal to the MSSC, but that is discretionary with that court, and these comments pertain to non-interlocutory appeals).
Undaunted by the express requirements of MRCP 54(b) and the ever-growing body of case law strictly applying it, lawyers continue to file appeals from judgments disposing of fewer than all of the issues, apparently drawn to the appellate process like moths to a flame — with similarly self-immolatory results.
In Ristroph, John Ristroph filed a pleading in his father’s estate to set aside a deed from his father to his brother Paul. He filed a separate pleading challenging certain inter vivos gifts from his father to Paul. Both pleadings alleged undue influence.
The chancellor dismissed the challenge to the deed based on statute of limitations.
John then filed a motion for rehearing pursuant to MRCP 59. Before the chancellor could rule on John’s motion, however, Paul, having once struck paydirt with his statute-of-limitations argument, filed a motion for summary judgment claiming that John’s inter vivos gifts claims were also time-barred.
The chancellor entered an order overruling John’s MRCP 59 motion for rehearing, and John appealed. <STRIKE ONE>
While the appeal was pending, John filed a motion under MRCP 60 asserting a new argument based on lack of consideration.
The chancellor then overruled John’s MRCP 60 motion, as well as Paul’s motion for summary judgment. John filed yet another an appeal from this latest adversity. <STRIKE TWO>
The MSSC bundled John’s two appeals together and sent them downstairs to the COA, where they landed with a thump on the desk of Judge Maxwell, who astutely pointed out that the chancellor was not yet through with the case at the trial level because the claims as to the inter vivos gifts remained unresolved. Ergo, no jurisdiction. <STRIKE THREE — YER OUT>
From where I sit — reading an appellate judge’s interpretation of a cold record — I find it hard to grasp why and how attorneys are filing appeals from less-than-fully-dispositive judgments without a R54(b) certification. Here we had not one, but two, untimely appeals in the same case. That may be some kind of record. John’s counsel on appeal does get a “Z” for zealously representing his client, I guess, but still, two untimely appeals (strikes one and two) and a dismissal (strike three). That’s got to smart a little.
THE END OF COLLEGE EDUCATION SUPPORT?
February 4, 2013 § 2 Comments
The seminal case of Nichols v. Tedder, 547 So.2d 766 (Miss. 1989) established once and for all two significant principles of Mississippi family law: One, that the duty of support for a child includes college education support; and two, that the duty to support a child can extend no further than the child’s 21st birthday.
Senate Bill 2339, introduced in this session by Senator Burton, would eradicate both principles.
The bill would amend MCA 93-11-65 with this language:
(9) (a) The duty of support of a child terminates upon the emancipation of the child. Unless otherwise provided for in the underlying child support judgment, for child support orders established on or after July 1, 2013, emancipation shall occur when the child:
(i) Attains the age of eighteen (18) years or graduates from high school, whichever comes later, but in no event shall the duty of support continue after the age of nineteen (19) unless otherwise agreed to in the support order, or
(ii) Marries, or
(iv) [sic] Joins the military and serves on a full-time basis, or
(b) Unless otherwise provided for in the underlying child support judgment established on or after July 1, 2013, the 260 court may determine that emancipation has occurred and no other support obligation exists when the child:
(i) Discontinues full-time enrollment in school having attained the age of eighteen (18) years, unless the child is disabled, or
(ii) Cohabits with another person without the approval of the parent obligated to pay support.
(c) The duty of support of a child who is incarcerated but 268 not emancipated shall be suspended for the period of the child’s incarceration. [Emphasis added]
The implications of these changes for divorce practitioners?
Under our present law, the parties may agree to college education support to age 21 (or beyond if they can agree). They know that if they can not reach an agreement the court will likely order college support to age 21, which is the limit of the court’s authority under Nichols v. Tedder. So, recognizing the likelihood, most divorcing parents agree to college education support to age 21.
Under this bill, unless the parties agree, the duty of support will absolutely end at age 19, which would be during the sophomore or possibly junior year of college for most children. The court would have no authority to order any support beyond age nineteen, eliminating the bargaining pressure in favor of college support.
Based on years of experience negotiating PSA’s, I expect that college education support will fall into the category of “my client prefers to help his child voluntarily rather than being bound by any contract,” which translates into “he’ll never do it,” or “he might agree in the future if his ex will give up something more.”
Anyone who has practiced any amount of divorce law is painfully aware of what many refer to as “divorce blackmail.” That’s the situation created by our present statutory divorce scheme, which requires the parties to agree in order to obtain a divorce where one of the fault grounds is not applicable. The party wanting the divorce more must give up more, sometimes everything, just to obtain the divorce. Under this bill, you can add college education support to the already long list of bargaining chips.
College education has been found conclusively to be a good thing for young people. It makes their financial future more secure, enhances earning ability, exposes them to new ideas, expands their horizons, and imparts advantages to them in innumerable ways. Children of divorced parents already face many financial challenges. Why would the public policy of Mississippi be to diminish the opportunity of children in a divorce to a college education?
The only reasons assigned for this proposal that I have heard are: (1) that Mississippi and New York are the last two remaining states who have 21 for the age of emancipation; (2) that lowering the emancipation age is the quid pro quo demanded by some legislators for them to agree to raise the statutory child support guidelines; and (3) that it would save DHS a lot of money.
The fact that we are one of only two states with this particular age of majority seems to me a laughable justification. If we were to go through and change every law where we were one of only a few states with a certain provision, we would literally have to rewrite our code, including elimination of separate equity courts (only four other states, as far as I know). Although we should always be informed and inspired by what other states do, our laws should be based on what is best for Mississippians, not on what everyone else is doing. The acid test should be: “How does this benefit our children?”
The second reason, about raising the guidelines, is based on an earlier part of the bill that would increase guideline child support percentages. The quid pro quo is that if we are going to increase the amount of child support being paid, we should decrease the amount of exposure time for the payer. I understand the politics of trade-offs, but how does this benefit children in Mississippi?
The last is a byproduct of the harsh 21st century reality that many policy decisions that directly and indirectly affect many citizens are driven by budget considerations, often budget considerations that those same citizens neither benefit from themselves nor will ever. Yes, this will be a boon to the bean-counters at budget time, but again, how does it benefit our children?
I would have less heartburn with this bill if it were amended to add an education clause that would authorize court-ordered education support — college, technical, or otherwise — to age 21.
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