A 54(b) HICCUP
May 2, 2012 § 4 Comments
MRCP 54(b) provides that, when a case involves multiple claims for relief, or multiple parties, the court may enter a final, appealable judgment as to fewer than all of the issues, or as to only certain parties, upon a determination that there is no just reason for delay, and at the trial court’s expressed direction for entry of the judgment. We have referred to it here as “Rule 54(b) certification.” Without such certification, the court’s ruling is not appealable, does not terminate the action, and is subject to revision at any time before entry of a final judgment disposing of all claims against all parties. It’s a subject we’ve dealt with here repeatedly: here, here, here, here and here.
In Wilton Acquisitions Corp. v. First Methodist Church of Biloxi, decided by the COA April 3, 2012, the chancellor dismissed Wilton’s pleadings for discovery violations and took under advisement the plaintiff’s claim for attorney’s fees in the case ” … until the Defendant submits sufficient information on which the Court can base its decision …” The judgment also recited “Ordered and Adjudged that this is a final judgment under Rule 54(b) as to all matters addressed herein.” The judge went on to explain that the court needed further information upon which to base its decision on attorney’s fees, and that ” … there is no just reason for delay and that judgment shall be final pursuant to [Rule] 54(b) as to all claims in the matter with the exception of the amount of expenses and attorney’s fees to be awarded, if any.”
Wilton appealed, complaining about the merits of the dismissal.
The COA, however, sidestepped the merits, finding that the chancellor had abused his discretion in ruling that the judgment was final and appealable under MRCP 54(b). The court noted at ¶8 that 54(b) judgments are reviewed under an abuse-of-discretion standard.
Citing Myatt v. Peco Foods, 22 So.3d 334, 340 (Miss. App. 2009), the court pointed out that Rule 54(b) is an attempt to strike a balance between the undesirability of piecemeal appeals and “the need to review a case at a time that best serves the needs of the parties.”
At ¶13, the opinion states that “We find the record unclear as to why the chancellor certified this judgment as final under Rule 54(b) when an item of requested relief, First Methodist’s request for attorney’s fees, was still pending. We find no apparent reason, from the record to review a partial judgment; therefore, we must dismiss this appeal.” [Emphasis added] Thus, the COA concluded that the chancellor had abused his discretion in certifying the case as a final, appealable judgment.
What you need to take away from this case is that if you want the partial judgment to be properly certified under 54(b), make sure that it includes the reasons why a review of the case on appeal before disposition of fewer than all of the issues will best serve the needs of the parties. In this particular case, perhaps an immediate review was necessary in order to prevent prejudice in related litigation, or a statute of limitations is ticking perilously away on a claim that might arise out of the outcome of the case. We really have no idea because the judge did not tell us. The COA is telling us that it is not sufficient merely to quote the language of the rule that “there is no just reason for delay;” you have to be sure that the judgment recites why, and why the best interest of the parties will be served thereby.
As a practice matter, if you intend to appeal, make sure you get that 54(b) judgment to recite what it needs to recite to pass muster under Wilton. If you are not allowed to draft the judgment yourself, or to have input into its language, file a timely MRCP 59 motion and ask the judge to add the specific wording you need. Otherwise, you may have the unpalatable choice of filing that appeal just in case, with full knowledge that it may well be a wasted effort.
BLUEWATER BACKSPLASH
April 3, 2012 § 3 Comments
The MSSC decision in Bluewater Logistics v. Williford, 55 So.3d 148 (Miss. 2011), is notable for several reasons. First, it’s of value to lawyers who litigate over LLC’s and contracts as a guide to the parameters of litigation in that field. Second, it spelled the demise of the “heightened scrutiny” and “lessened deference” rules formerly applied when judges adopt verbatim one side’s proposed findings of fact and conclusions of law; a post in which I touched on that point is here.
To me, though, the most potentially far-reaching impact of Bluewater is its treatment of the pleadings and the scope of relief granted by the trial judge. The COA had reversed, ruling that the chancellor had impermissibly gone beyond the scope of the pleadings. The COA decision rested on three 19th-century cases.
The MSSC granted cert and the Bluewater appellants argued to the high court that the COA was correct because Williford’s complaint had sought only injunctive relief in the form of reinstatement as a member of the LLC, and that, as a result, the chancellor was in error in awarding him equitable relief in the form of a judgment for the value of his interest in the LLC. Here’s what Justice Dickinson, writing for the majority, said, beginning at page 157:
¶ 35. Mississippi has been a “notice pleading” state since January 1, 1982, when we adopted the Mississippi Rules of Civil Procedure. [citation omitted] Under Rule 8, a complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” and “a demand for judgment.” [citation omitted] “No technical forms of pleading or motions are required.” [citation omitted] Moreover, “[a]ll pleadings shall be so construed as to do substantial justice.” [citation omitted] Rule 54(c) states that every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled by the proof and which is within the jurisdiction of the court to grant, even if the party has not demanded such relief in his pleadings …. ” [citation omitted]
¶ 36. Our decisions have reflected the shift from older forms of “code pleading” to the Rules’ “notice pleading” paradigm. In Pilgrim Rest Missionary Baptist Church v. Wallace, we stated “it is axiomatic that the relief need not be limited in kind or amount by the demand but may include relief not requested in the complaint.” [citation omitted] And in Turner [Turner v. Terry, 799 So.2d 25, 39 (Miss.2001)], we stated: “A trial judge may award a party any relief to which he is entitled, even if the party fails to make a specific demand for such.” [citation omitted]
¶ 37. In holding that the chancellor erred in granting Williford money damages, the Court of Appeals inexplicably relied on three pre–rules cases, two of which date to the 1850s. [citation omitted] We now overrule Barnes, French, and Tucker to the extent that they conflict with the requirements and provisions of the Mississippi Rules of Civil Procedure and subsequent decisions of this Court.
¶ 38. We hold that Williford’s complaint was clearly sufficient to support an award of monetary damages. The complaint is titled “Complaint for Preliminary and Permanent Injunction and Damages.” The opening paragraph stated that Williford was seeking damages. Paragraph 5 alleged the ouster was unlawful, “warranting equitable and monetary relief.” Count I of the complaint was titled “Breach of Contract” and alleged breach of contract, for which the remedy is compensatory damages. In Count III, titled “Violation of the Mississippi Limited Liability Company Act,” Williford asserted “all rights and remedies available under the applicable statute, Miss.Code Ann. § [79–29–101], et seq.” [citation omitted] Under the section titled “Damages and Relief Sought,” Williford sought (among other things) compensatory damages, an accounting of all company assets, an appraisal of the fair-market value of his share of the company, and “any other relief to which he may be entitled.”
¶ 39. Viewed as a whole, we cannot say the chancellor was in error by finding that the complaint was sufficient to put Bluewater on notice that Williford was seeking monetary relief. Accordingly, Defendants’ argument that the chancellor granted Williford relief that was beyond the scope of the pleadings is without merit.
One of those 19th-century cases reversed by the court Terry v. Jones, was referred to by me in a prior post to emphasize that pleadings are not proof.
It remains to be seen how far the courts will go in applying the pleadings aspects of Bluewater. If the decision is limited to the underlying facts, then it should not be too earthshaking because the pleadings arguably did invoke the remedies that the trial court applied. If, however, the decision is taken to mean that notice pleadings require only notice of subject matter jurisdiction, thereby opening the door to all species of relief available thereunder, then your practice of chancery law may change dramatically.
Or maybe not. It has long been the law in Mississippi that in granting equitable relief the chancellor may order all relief necessary to effect an equitable remedy, whether pled for or not. For instance, in awarding lump sum alimony the chancellor may impose an equitable lien on real propterty to secure the payment. Or, where custody is sought, the judge may order the noncustodial parent to pay child support even where it was not sought. So perhaps Bluewater is not so much a dramatic shift in the tide as it is a mere ripple on the pond.
FYI, the Bluewater holding also calls into question a prior post of mine in which I stressed that you have to ask for specific relief in your pleadings if you expect to get it.
I encourage you to read the Bluewater decision carefully to get a handle on how it can help or hurt you. You will likely come up with ways to argue it to your advantage.
HOW TO WASTE A TRIP TO THE COA
March 21, 2012 § 3 Comments
We’ve talked here before about the futility of filing an appeal from a judgment that disposes of fewer than all of the issues that were pled and tried, and does not include an MRCP 54(b) certification.
The latest manifestation of the principle appeared in the COA case of Williams v. Claiborne County School District, et al., decided February 21, 2012. In that case, the school district complained in its cross-appeal that the trial judge erred by not granting it the $120,000 in damages it had asked for in its pleadings. Indeed, the chancellor did not even address the issue of damages.
Oops. On its own initiative (after having been alerted by the cross-appeal), the COA dismissed both the appeal and the cross-appeal because the judgment disposed of fewer than all the issues, and did not include an MRCP 54(b) certification by the judge, meaning that it was not a final, appealable judgment.
Another wasted trip to the COA. Think of those long, lonesome, solitary (albeit billable) hours working on briefs and record excerpts, on reply and rebuttal briefs, on research. Think of what the clients will say when they get the bills for all that time spent to produce nothing but a return to the starting line. Ouch.
As I’ve said before, if you feel that the judge has not addressed an issue so that you don’t have a final judgment, or if you’re in doubt about it, file a timely MRCP 59 or 60 motion and raise the point so that the judge can either (a) address the missing issue, or (b) schedule a trial on the missing point, or (c) amend the judgment to add a 54(b) certification.
AN MRCP 56 CAUTION
March 14, 2012 § Leave a comment
The first thing you should do when confronted with a motion for summary judgment is to read the rule. I know, I know, you’re busy and it takes time, but for Pete’s sake, it might just save you some trouble and embarassment, and it might save your malpractice carrier some $$$.
In the COA case of Estate of Farr v. Wirick, decided February 21, 2112, the trial judge excluded from evidence two affidavits that were submitted on the day of hearing. The COA ruled that ” … the chancery court properly excluded the cerificates under [MRCP] Rule 56(c), which requires that affidavits in opposition to a motion for summary judgment must be served ‘prior to the day of the hearing’.”
You have at least ten days’ notice of a motion for summary judgment per MRCP 56(c), and you must file your counteraffidavits prior to the day of the hearing.
So what do you do if you can’t scrape together counteraffidvits in time? MRCP 56(f) allows the court to grant additional time to obtain them, or to grant a continuance to do additional discovery, or to “make such order as is just.” The court can also simply refuse the application for summary judgment.
You can also ask the judge, per MRCP 56(e) for leave to supplement your affidavits or to submit further affidavits.
And don’t overlook this crucial language at MRCP 56(e):
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. [Emphasis added]
MAKING CHILD SUPPORT RETROACTIVE
March 13, 2012 § Leave a comment
Until 1991, the only way to get child support for a period predating your judgment was under MCA § 93-9-11, which allows the court to assess past education and necessary support and maintenance for a child for “one (1) year next preceding the commencement of an action” of paternity.
That changed with the case of Lawrence v. Lawrence, 574 So.2d 1376, 1384 (Miss. 1991), which held that the chancellor may make an upward modification of child support effective as of the date of filing of the pleading seeking modification. Downward modification is effective as of the date of the judgment of modification.
In the case of Strong v. Strong, 981 So.2d 1052, 1054-55 (Miss.App. 2008), the parties entered into a consent for divorce on the sole ground of irreconcilable differences and submitted the following matters for adjudication by the court:
“The parties submit all other issues relating to the extent of the Husband’s visitation with the children, child support, the existence of temporary child support arrearage, health insurance coverage for the children, payment of medical expenses not covered by insurance, life insurance with the children as beneficiaries, claiming the children as dependants for tax purposes, payments of college expenses; and all other related child visitation and support issues to the Court for adjudication.” [Emphasis added]
The court of appeals held that language adequate to uphold the chancellor’s decision to award temporary child support for the twelve months preceding the temporary order in the case, where the payor did not object to presentation of proof on the point. The court said:
“¶ 13. In order to obtain child support, it must be requested in the pleadings or be tried by the consent of the parties. Lee v. Stewart, 724 So.2d 1093, 1095-96 (¶¶ 3-4) (Miss.Ct.App.1998). Lee is instructive to this particular case. There, the chancellor awarded one year of past-due support even though the issue was never raised in the original or amended complaints. Id. at 1095(¶ 3). This Court held that since Lee failed to make a contemporaneous objection when the evidence was introduced on the issue at trial, the issue was tried with Lee’s implied consent. Id. at 1096(¶ 4) (citing Atkinson v. Nat’l Bank of Commerce of Miss., 530 So.2d 163, 166 n. 2 (Miss.1988)).”
It is interesting that both Strong and Lee turn on either a pleading for relief or trial of the issue without objection. The clear implication is that if you include a prayer in your pleading for past child support, it will open the door to that relief by the court.
Whether to grant retroactivity is discretionary with the court. Weeks v. Weeks, 29 So.3d 80, 89 (Miss. App. 2009). I take the position that you must include a specific request for retroactivity in your pleading, or I will not grant it. My rationale is that you are trying to take money (i.e., property) from the other party, and that requires due process under the Fifth Amendment, which in turn requires adequate notice and opportunity to be heard.
LIMIT: ONE DIVORCE PER CUSTOMER
March 12, 2012 § Leave a comment
Lane and Cristal Kimbrough appeared before a special chancellor to present their case for divorce. The case was apparently bifurcated, with the court hearing first only the divorce grounds, and the remaining issues to be tried later.
As for divorce grounds, Cristal charged Lane with habitual cruel and inhuman treatment and habitual drunkenness. Lane counterclaimed that Cristal had been guilty of habitual cruel and inhuman treatment and adultery.
At trial, after having heard the proof only on the grounds for divorce, the special chancellor dismissed all of the pled grounds and held that the parties were divorced “one from the other on the grounds of desertion.” The basis for his ruling was that both parties had recognized that the marriage was broken by virtue of having filed for divorce against each other, and they had in essence lived separate and apart within the same residence for more than two years, “abandoning the marital relationship.”
Both parties appealed.
In Kimbrough v. Kimbrough, decided by the COA February 28, 2012, the COA reversed and remanded, saying that “The chancellor’s grant of the divorce to both parties on the equal fault ground of desertion was clear error.” Judge Russell, writing for the majority, stated:
“The Mississippi Supreme Court has held that a chancery court may not grant a divorce based on each party’s fault-based grounds. Hyer v. Hyer, 636 So. 2d 381, 383-84 (Miss. 1994). This Court has stated: “There can be but one divorce granted. Where each party has requested a divorce and offers proof sufficient to establish a basis for divorce, the chancellor must then determine which of the parties will be granted a divorce.” Garriga v. Garriga, 770 So. 2d 978, 983 (¶23) (Miss.App. 2000).
The court reversed and vacated the trial court’s judgment, declining to address any other issues.
Judge Griffis dissented for the reason that the COA should not have accepted and ruled on the appeal at all, since the trial court’s judgment disposed of less than all the issues pending (i.e., custody, child support, equitable distribution, etc.). He agreed that, if the COA should keep the appeal, the chancellor’s grant of a mutual divorce should be reversed, but he would have held that Cristal should have been granted a divorce based on the record.
Quite often lawyers present agreed Irreconcilable Differences divorce judgments granting both parties a divorce. That does not fly in the face of Hyer and Garriga because Irreconcilable Differences is not a fault-based ground.
In fault-based cases, however, the court can grant only one divorce per case. Mutual divorces are forbidden.
WRITING YOUR WAY TO A WIN
February 28, 2012 § 12 Comments
Imagine you have concluded a grinding trial in a hotly contested case. The chancellor turns to you and says, “You write the opinion. Stick to the facts in the record, recite the applicable law, analyze the factors, and rule in your client’s favor.” After pinching yourself to make sure you’re not dreaming, you’d jump at the chance, wouldn’t you?
There is actually a tool available for you to do that very thing, and, interestingly, few attorneys voluntarily avail themselves of it.
It’s called Proposed Findings of Fact and Conclusions of Law (PFFCL).
Typically when PFFCL are called for, it is at the behest of the judge, and more often than not they are called for in complex cases. But there is no good reason why a lawyer may not request it, and there is no good reason to limit its application to complex cases only. I can not think of a single type of chancery case where PFFCL would not work.
I have seen good PFFCL and bad. The good read like a trial court opinion that would be affirmed on appeal: findings of fact are supported by evidence in the record; the applicable law is set forth; factors are analyzed and conclusions reached; rulings are set out clearly and distictly, resolving every issue in dispute. The bad are, well, bad: facts are injected that never made it into the trial; the law is inapplicable or misapplied; factors are not addressed, or they are not properly addressed; the rulings have no basis in fact or law.
The traditional rule in Mississippi was that if the trial judge adopted your PFFCL verbatim, the appellate court would give the trial court ruling less deference or subject it to heightened scrutiny. In Rice Researchers v. Hiter, 512 So.2d 1259, 1266 (Miss. 1987), the court said:
In our view, the matter of whether a trial court may adopt verbatim, in whole or in part, the findings of fact and conclusions of law of a party is within the court’s sound discretion. See 54 A.L.R.3d 868, supra. Case complexities and crushing caseloads necessitate substantial reliance upon the submissions of trial counsel. Still, the judge is a judge and not a rubber stamp. He may not be able to afford the luxury of practicing his culinary art a la the Cordon Bleu. He should remember, however, that his oath precludes a McDonald’s approach to the judicial process. Where the trial judge wholly abdicates his judicial responsibilities—where, as it were, he abuses his discretion—we doubtless have authority to intervene. Here the Chancery Court quite properly requested that each party submit proposed findings of fact and conclusions of law. These submissions were considered at an adversary hearing. Thereafter, the Court considered RRI’s motion to amend findings. These steps, coupled with the fact that this case is quite complex (in spite of its simplicity), leave us convinced that the Chancery Court acted within its authority. As indicated above, however, our obligation of appellate deference to such findings is necessarily lessened.
The rule was tossed out only last year in Bluewater Logistics v. Williford, 55 So.3d 148, 157 (Miss. 2011), where the Mississippi Supreme Court ruled that it would continue to apply the “familiar abuse-of-discretion standard” to review of chancery court decisions, even where the chancellor adopted one party’s PFFCL verbatim.
My little opening vignette is unrealistic in one sense: the judge will always allow all parties to submit their own PFFCL. But the judge can pick and choose elements of all that were submitted, or simply adopt one, or use them as a template to do his own, or ignore them.
So there you have it. As long as the findings are supported by substantial evidence in the record and the law is properly applied, the trial court ruling will be upheld. And you can be the one to write it.
DOING MUNIMENT OF TITLE RIGHT
January 11, 2012 § 18 Comments
MCA § 91-5-35 allows you to admit a will to probate as a muniment of title only (muniment = evidence or writing that enables one to defend title to an estate or a claim to rights or privileges, according to Webster). It’s an effective procedure where the decdent owned only real property in Mississippi, and especially where the decedent was a resident in another state and owned nothing but realty here.
The statute enables the beneficiaries to dispense with the formalities of probate and have a judgment recorded that preserves the chain of title.
Your client can take advantage of the statute if the decedent died testate owning real property in Mississippi at the time of death, and the will purports to devise the real property.
But you have to do it right. Here’s what the statute requires:
- The petition must be signed and sworn to by all beneficiaries named in the will, and by the spouse if not named in the will.
- The petition must recite that the value of the decedent’s personal estate in Mississippi at the time of death, exclusive of any interest in real property, was less than $10,000, not including exempt property.
- The petition must recite that all of the known debts of the decedent and estate have been paid, if any, including any estate and income taxes.
- Any beneficiary under a legal disability must sign the petition by legal guardian or parent.
- Since the petition is sworn, and since the statute lays down specific requirements, it is a good idea to include all of the statutory prerequisites (e.g., that the decedent died owning real property in the state of Mississippi, that no estate or income taxes are due, etc.), and to track the language of the statute verbatim. If I were doing it, I would simply draft my petition tracking the statute phrase for phrase.
I have seen lawyers come to grief over their petitions simply because they got creative. One tried to argue with me that this sentence was enough to qualify under the statute: “The only property the decedent owned at the time of death is the real property described herein.” That’s not good enough, in my opinion, because there must be shown in the petition that “The value of the decedent’s personal estate in the state of Mississippi at the time of his or her death, exclusive of any interest in real property, did not exceed … etc.”). Again: I suggest that you simply track verbatim the language of the statute as far as you can.
I have never had to present live testimony beyond the sworn petition to obtain a judgment under the statute, and I do not require it; however, I have heard that some chancellors do require testimony, so you need to find out how your chancellor does it before you set aside time to present your petition.
The statute specifically provides that the procedure does not deprive any interested party of the right to a formal administration of the estate, or to file a will contest. Thus, probate as a muniment is not an effective, shorthand substitute for actual probate of a will.
Where to file? That should be governed by MCA § 91-7-3.
Caveat: Do not include language in your judgment that adjudicates ownership, heirship or anything of the sort. An adjudication that the petitioners are all of the named beneficiaries in the will, and that the property is admitted to probate as a muniment of title only is all that the statute contemplates.
STANDARDS OF REVIEW
December 28, 2011 § 2 Comments
|
MATTER |
STANDARD OF REVIEW |
CASE LAW |
| Appeal to trial court from administrative agency action or ruling | Arbitrary and capricious | When this court reviews a decision by a chancery court or circuit court concerning an agency action, it applies the same standard of review that the lower courts are bound to follow. We will entertain the appeal to determine whether the order of the administrative agency (1) was supported by substantial evidence; (2) was arbitrary or capricious; (3) was beyond the power of the administrative agency to make; or (4) violated some statutory or constitutional right of the complaining party. Miss. Sierra Club v. Miss. Dept. of Environmental Quality, 819 So.2d 515, 519 (Miss. 2002). |
| Attorney’s fees | Abuse of discretion | Whether to award attorney’s fees rests entirely within the discretion of the trial court. A trial court’s decision on attorney’s fees is subject to an abuse of discretion standard. Unless the trial court is manifestly wrong, its decision regarding attorney’s fees will not be disturbed on appeal. Ward v. Ward, 825 So.2d 713, 720 (Miss. App. 2002). |
| Contempt – civil | Manifest error | In civil contempt actions, the trial court’s findings are affirmed unless there is manifest error. Riley v. Wiggins, 908 So.2d 893 (Miss. App. 2005). |
| Contempt – criminal | Ab initio | This court proceeds ab initio to determine whether the record proves the appellant is in contempt beyond a reasonable doubt. Brame v. State, 755 So.2d 1090, 1093 (Miss. 2000). |
| Domestic relations | Manifest error/clearly erroneous | In domestic relations cases the scope of review is limited b y the substantial evidence/manifest error rule. This court may reverse a chancellor’s findings of fact only when there is no substantial credible evidence in the record to justify his finding. Our scope of review in domestic relations matters is limited under the familiar rule that this court will not disturb a chancellor’s findings unless manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard. Jundoosing v. Jundoosing, 826 So.2d 85, 88 (Miss. 2002). |
| Evidence, admission or exclusion | Abuse of discretion | The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936 (Miss. 2006).A trial court’s decision to admit or exclude evidence will not be reversed unless a substantial right of a party is adversely affected. Robinson Prop. Group, L.P. v. Mitchell, 7 So. 3d 240, 243 (Miss. 2009). |
| Expert testimony | Abuse of discretion/clear error | The qualifications of an expert in fields of scientific knowledge are left to the sound discretion of the trial court. Its determination on this issue will not be reversed unless it clearly appears that the witness is not qualified. This court reviews the trial court’s decision to allow expert testimony under the well-known clearly erroneous standard. Similarly, an expert’s testimony is always subject to MRE 702. For a witness to give MRE 702 opinion, the witness must have experience or expertise beyond that of an average adult. Thus, we generally defer to the discretion of the trial court in determining whether an expert is qualified to testify, and we will only reverse when there was clear error or abuse of discretion in the decision to admit the testimony. Cowart v. State, 910 so.2d 726, 728-29 (Miss. App. 2005). |
| Findings of fact by chancellor | Manifest error/clearly erroneous | A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. This court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Sanderson v. Sanderson, 824 So.2d 623, 625-26 (Miss. 2002). |
| Law, questions of | De novo | We conduct a de novo review for determinations of legal questions. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721 (Miss. 2002). |
| Jurisdiction, in personam | De novo | An appellate court reviews jurisdictional issues de novo by examining the facts set out in the pleadings and exhibits to determine the propriety of the proceedings. American Cable Corp. v. Trilogy Commun., Inc., 754 So.2d 545, 549 (Miss. App. 2002). |
| Jurisdiction, subject matter | De novo | Whether the trial court had jurisdiction to hear a particular matter is a question of law, to which this court must apply a de novo standard of review. Edwards v. Booker, 796 So.2d 991, 994 (Miss. 2001). |
| Reconsideration under MRCP 59 | Abuse of discretion | A petition for reconsideration is treated as a motion to amend judgment pursuant to M.R.C.P. 59(e). Boyles v. Schlumberger Tech. Corp., 792 So.2d 262, 265 (Miss. 2001) (quoting In re Estate of Stewart, 732 So.2d 255, 257(Miss.1999)). [I]n order to succeed on a Rule 59(e) motion, the 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. Brooks v. Roberts, 882 So.2d 229, 233(¶ 15) (Miss.2004) (citation omitted). This Court reviews the denial of a Rule 59(e) motion for abuse of discretion. Id. |
NEWLY DISCOVERED EVIDENCE, NOT NEWLY MANUFACTURED EVIDENCE
December 19, 2011 § Leave a comment
MRCP 60(b)(3) provides that a court may grant relief from judgment based on “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).”
The Mississippi Supreme Court in the case of Moore v. Jacobs, 752 So.2d 1013, 1017 (Miss. 1999), pointed out that “A motion for a new trial based on new evidence is an extraordinary motion, and the requirements of the rule must be strictly met.” The decision set out five criteria that must me met in order for the trial court to grant relief:
- The evidence was discovered following the trial;
- There is proof, or it may be inferred, that the movant exercised due diligence to discover the new evidence;
- The evidence is not merely cumulative or impeachment;
- The evidence is material;
- The evidence is such that a new trial would probably produce a new result.
“A party asking for a new trial on the ground of newly discovered evidence must satisfy the [trial] court that the evidence has come to his knowledge since the trial, and that it was not owing to a want of diligence on his part that it was not discovered sooner.” Sullivan v. Heal, 571 So.2d 278, 281 (Miss. 1990). “[F]acts implying reasonable diligence must be proved by the movant.” NLRB v. Decker & Sons, 569 F.2d 357, 363-4 (5th Cir 1978).
The decision of the chancellor to deny such a motion may only be reversed if the appellate court finds abuse of discretion. United Serv. Auto Assoc. v. Lisanby, 47 So.3d 1172, 1176 (Miss. 2010).
All of the authority cited above is extracted from Judge Griffis’s opinion in the COA case of Smullins v. Smullins, decided on rehearing November 29, 2011.
Shellie and Bradley Smullins battled over a divorce and custody of their son Devinn, who was age seven at the time. Neither party was an all-star parent. There was substantial evidence that each of them engaged in behaviors that called their parenting skills into question.
On August 8, 2008, following the trial, the chancellor issued a fifty-page opinion that included a detailed Albright analysis. He awarded Bradley sole physical custody of Devinn and granted the parties joint legal custody.
On August 9, 2008, Shellie and Devinn submitted to a DNA test, and on August 12, 2008, Wendle Hunt did the same. The test result established a 99.999996% probability that Hunt was the natural father.
On September 6, 2008, the chancellor entered the judgment of divorce, which was approved as to form by Shellie’s attorney.
On September 26, 2008, Shellie filed a motion for a new trial (reconsideration under MRCP 59) on the basis of newly discovered evidence. The motion included the following assertions: Devinn was conceived prior to the parties’ marriage, and they knew before the marriage that it was possible that Bradley was not the father; the DNA test shows that Wendle Hunt is the natural father; Wendle Hunt is ready, willing and able to act as the child’s father; and Wendle is “disturbed to learn that his son is being raised by a second generation alcoholic drug addict.”
At hearing, Shellie testified that she always knew that there was a possibility that Bradley was not Devinn’s natural father. She had offered a DNA test before the marriage, but Bradley had refused. Wendle did not know that he had fathered a child by Shellie.
The chancellor overruled the motion, and said:
“The new evidence regarding the paternity of [Devinn] was not discovered until after the trial but was known to [Shellie] prior to entry of the judgment. [MRCP] 58 states that, “a judgment shall be effective only when entered.” Therefore, the paternity of Devinn Wayne Smullins was known prior to the divorce being final but was not disclosed to this court.
Due diligence on the part of the movant to discover the new evidence is required. ‘A party can not fail to investigate important information and then attempt to assert that information as new evidence at the end of the trial.’ [citing Goode v. Synergy Corp., 852 So.2d 661, 664 (¶12) (Miss. Ct. App. 2003) …]”
The judge found that Shellie had failed to exercise due diligence and overruled her motion for reconsideration.
The COA affirmed, saying at ¶35:
Just like the chancellor, we fail to see how the paternity test results can be newly discovered evidence if she knew of the possibility of that very fact prior to the commencement of this legal action. Had Shellie alleged that, upon information and belief, Bradley was not Devinn’s biological father, then that very issue could have [been] tried to the chancellor and considered in the final judgment. But she failed to do so.
Another avenue that Shellie could have taken to try to avoid running into this brick wall would have been to file a motion to reopen her case before the judge entered the judgment. It’s still unlikely she would have been granted any relief given what she testified that she knew, but that would have given her another shot.
So here is an important distinction to draw from this case: Although it is true that the DNA test results did not exist until after the trial, Shellie and Bradley both knew, or had strong reason to believe, that Bradley was not the father. Thus, the DNA results were mere verification of evidence that the parties knew of and could have developed at trial.
Genuine cases of newly discovered evidence that come within the rule are indeed rare. When the situation does arise, however, you have to analyze it within the express requirements of the rule.
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