PERILS OF PROCESS BY PUBLICATION, EPISODE THREE
June 27, 2011 § 9 Comments
You can read here and here some of the snares in MRCP 4 that can snap painfully on the unwary. Unwary = those who don’t bother to read the rules.
MRCP 4 publication claimed its latest victim on June 14, 2011, in the COA case of Turner v. Deutsche Bank. In that case, the bank filed a judicial foreclosure and published process to Angela Turner. The original complaint recited Angela’s address, and the bank duly sent its process server there, only to discover that she had moved, whereabouts unknown. At that point, without amending its pleadings or filing an affidavit of diligent inquiry, Deutsche published process and a chancellor signed a default judgment finding, among other things, that the court had jurisdiction.
Angela awoke to what had happened and filed an MRCP 60 motion to set aside the judgment, and the original chancellor recused herself. Her successor overruled Angela’s motion in part because the court had already ruled that it had jurisdiction.
The court of appeals reversed and remanded. Here are some pertinent excerpts from the decision:
- “Deutsche Bank attempted to serve Turner by publication under Rule 4(c)(4), which provides for situations where the defendant cannot be found within the state. Publication of the summons must be made once a week for three consecutive weeks in the public newspaper of the county if one exists, as in our case. M.R.C.P. 4(c)(4)(B). But service by this method is only permitted “[i]f the defendant . . . be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry.” M.R.C.P. 4(c)(4)(A).”
- “¶10. The affidavit or sworn complaint must also state the defendant’s post-office address, if known, or swear that it could not be determined after a diligent inquiry. Id. If the postoffice address is listed, the sworn petition or affidavit must further provide the defendant’s street address or that it could not be determined after a diligent inquiry. M.R.C.P. 4(c)(4)(B). And if the plaintiff provides a post-office address, the clerk must mail the defendant (by firstclass mail, postage pre-paid) a copy of the summons and complaint to his post-office address, and note having done so on the general docket. M.R.C.P. 4(c)(4)(C). “
- “¶12. The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (¶16) (Miss. Ct. App. 2002) (internal citation omitted). Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So. 2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759 So. 2d at 1257 (¶33). [Emphasis added]
- “¶13. In Kolikas, we found a chancellor erred in failing to set aside a divorce decree, where the plaintiff attempted service by publication without strictly complying with the requirements of Rule 4(c)(4). Kolikas, 821 So. 2d at 879 (¶32). We observed that a defendant is “under no obligation to notice what is going on in a cause in court against him, unless the court has gotten jurisdiction of him in some manner recognized by law.” Id. at 878 (¶17).” [Emphasis added]
- In the petition or affidavit, the plaintiff must certify to the court, among other things, that the defendant is a nonresident or cannot be found in Mississippi.
- This conclusion is supported by the supreme court’s decision in Caldwell v. Caldwell, 533 So. 2d at 415. There, the supreme court noted that Rule 4(c)(4)(A) was substantially the same as the statute in place before the adoption of the Mississippi Rules of Civil Procedure. Id. The Caldwell court found instructive and quoted favorably a pre-rules treatise’s comment that “[a]n affidavit to support process by publication must strictly comply with the statute and if it omit[s] averment of diligent inquiry it is insufficient.” Id. at 416 (quoting Griffith, Mississippi Chancery Practice , Bobbs-Merrill Company, Inc. 225-27 (1925)). And “where notice by publication is resorted to . . . as a basis for the jurisdiction of the court, in lieu of personal summons[,] all the requirements of the statute as to such notice must be strictly complied with[.]” Id. at 415 (emphasis added). Rule 4(c)(4)(A) is equally clear that the plaintiff must attest that he has performed a diligent inquiry before performing service by publication. It is no less true today that a sworn averment of diligent inquiry must be made to effectuate proper service by publication. “[Emphasis added]
- “Rule 60(b) provides that the court may relieve a party from a final judgment if one of the stated conditions is met. One such condition exists where “the judgment is void.” M.R.C.P. 60(b)(4). Our supreme court has held that “[a] court must have . . . proper service of process . . . in order to enter a default judgment against a party. Otherwise, the default judgment is void.” McCain v. Dauzat, 791 So. 2d 839, 842 (¶7) (Miss. 2001) (internal citation omitted). Although “[t]he grant or denial of a 60(b) motion is generally within the discretion of the trial court, . . . [i]f the judgment is void, the trial court has no discretion.”
So here’s what you need to take away from this case:
First, if you’re going to obtain process by publication, you are going to have to comply with every technical requirement of MRCP 4(c)(4). The rule is to be strictly construed.
Second, if you have not been able to discover the whereabouts of the other party for service of process, you must file your affidavit of diligent inquiry before you publish. Filing it later will not work.
Third, if you do not comply strictly with the rule, your judgment will be void and subject to being set aside. In other words, you client will have paid you for accomplishing nothing, and maybe even for putting him in a worse position. That usually makes a client peeved enough to sue somebody.
This is yet another in a long list of decisions that would have had an entirely different outcome if counsel had simply taken a few minutes to read the rule and do what it says.
NO WAY TO BREAK A DOG OF SUCKING EGGS
June 2, 2011 § Leave a comment
Oh, for the lost, effulgent epoch of mellifluous legal prose when only the most grandiloquent curlicues and glittering flourishes of the language graced the solomonic decrees of our learned justices.
Take this for example: “It is a fact of common knowledge that when a dog has once acquired the habit of egg-sucking there is no available way by which he may be broken of it, and that there is no calculable limit to his appetite in the indulgence of the habitual propensity.” How could this elemental principle underlying so much of our law be more succinctly and eloquently stated?
Thus Blogged Anderson offers his favorite from the 1900 MSSC decison in ICRR v. Johnson, which includes the memorable phrase: ” … the icecold law, from which no friction will excite sparks … “
And Tom Freeland, on NMisscommentor weighs in with his favorites, where you can find the cite to the egg-sucking-dog reference above, and the surprising identity of its author, as well as the case that includes the incisive and insightful quote: “It is not always conducive to domestic peace for a husband to contradict the statements of his wife … “
My bet is that the comments will produce at least a few more such gems. You should check them out.
CREDITING “UNPAID” CHILD SUPPORT
June 1, 2011 § 2 Comments
Lawyers and the courts are often called upon to clean up the mess made by the parties when they make a handshake deal to modify a judgment. Here’s a fairly common setting …
The custodial mom and son aren’t getting along. The child is a rebellious teenager who is not interested in school. He has fallen in with the wrong crowd and appears headed for trouble. Non-custodial dad agrees for the child to come live with him to finish out the school year and get him straightened out. Junior lives with dad for 10 months, does better in school, gets his head right, and returns to live with mom. During the 10 months Junior was with his father, dad did not pay the $300 a month child support ordered by the court in the divorce judgment. As soon as Junior returns home, mom files a contempt action against dad, wanting her $3,000 in child support arrearage, plus interest and attorney’s fees.
Mom claims that the law of Mississippi is that the court can not enforce a modification by the parties, and that if dad had wanted to be relieved of child support he should have gotten a court order.
Dad points to the fact that he supported the child 100% during the 10 months Junior was with him, and the money would be an unjust enrichment for mom.
Who’s right?
In the case of Varner v. Varner, 588 So.2d 428, 434 (Miss. 1991), the parties had three children with a “global” child support obligation of $600. One of the children came to live with the father for a number of years. The court said:
The law remains firm that court-ordered child support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid. But this does not mean that equity may not at times suggest ex post facto approval of extra-judicial adjustments in the manner and form in which payments have been made.
The court went on to find that the father had, indeed, made the child support payments ordered by the court for Junior’s benefit. He just did not make the payments to the mom. The court cited the case of Alexander v. Alexander, 494 So.2d 365, 368 (Miss. 1986), quoting it as follows:
If we affirm the chamcellor’s back award of child support to Mrs. Alexander, we will create a situation of unjust enrichment in Mrs. Alexander. This is true because nduring the entire period of time for which Mrs. Alexander claimed support Mr. Alexander had the child in his custody, was supporting the child, and furthermore, was paying the child the $200 a month child support called for by the decree.
Under these circumstances Mrs. Alexander would have no claim to the back child support except to accept it as a conduit to pass directly to the child or back to Mrs. Alexander for the use and benefit of the child. We consider this a vain and foolish act. In our opinion, when the custodial parent received full child support during the time she had custody of the child, did not complain when the child moved in with the other parent, and accepted this arrangement for 20 months with the child support being paid directly to the child, the parent paying the child support is entitled to full credit for all child support paid to the child. He is also entitled to [credit for] any additional support which he has evinced by satisfactory proof to the trial court.
The court went on to say that the father may receive credit for having paid child support where the child lived with him for a time and he paid the support directly to, or for the benefit of, the child. The effect of Varner is that the paying parent is granted a pro rata credit for child support. In Varner (at page 434), that meant that the father received a $200 a month credit against his “global” child support obligation of $600 a month for three children; in other words, since 1/3 of the children lived with him for a time, he is entitled to a pro rata reduction of 1/3.
The decision also includes the familiar admonishment that parties who modify a court judgment without court approval do so at their peril, and they encouraged parties to obtain a judgment incorporating their agreement before embarking on it.
A similar issue arose in Dorr v. Dorr, 797 So. 2d 1008, 1012-1015 (Miss. App. 2001), in which Houston Dorr was ordered to pay child support to his former wife, Susanne Dorr. In return, Houston was given the right to claim the child as a dependent for tax purposes. Houston failed to make consistent child-support payments from 1985 to 1994. In 1988, Houston and Susanne made an extra-judicial agreement whereby Houston relinquished his right to claim the child as a dependent for tax purposes. Susanne claimed the tax exemption from 1988 through 1994 and received a $4,300 tax benefit from doing so. Then, in 1998, Susanne filed suit against Houston for the back child support. The COA found that, although the chancellor had no authority to enforce the extra-judicial agreement, the chancellor erred by not giving Houston credit for giving up his right to the exemption. The court held:
In our view, this financial benefit to [Susanne] for the child’s benefit, though not directly derived from [Houston]’s own income, in equity ought to be considered as a credit towards [Houston]’s recurring child support obligations accruing during the same period, much in the same manner that such indirect payments as social security payments to dependent children derived through the efforts of the obligee have been allowed as credit toward child support. See , e.g., Bradley v. Holmes, 561 So. 2d 1034, 1035 (Miss. 1990).
Dorr was followed in the COA case of Potts v. Windham, decided March 1, 2011, at ¶ 8. The trial court had denied credit to the father for the amount of the mother’s income tax refund because his income was such that he would not have paid any income taxes had he filed, whether or not he claimed the child as a dependent. In reversing, the COA noted that the mother had realized a $4,300 credit by claiming the child, and that the benefit to her, not to the father, was the relevant yardstick to determine whether there would be unjust enrichment.
In the Bolton v. Bolton, decided May 24, 2011, by the COA, at ¶ 47, the following language appears:
Courts award child-support to the custodial parent for the benefit and protection of the child. Smith v. Smith, 20 So. 3d 670, 674 (¶13) (Miss. 2009). “Such benefits belong to the child, and the custodial parent has a fiduciary duty to hold them for the use of the child.” Id. “The law remains firm that court-ordered child-support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid.” Id. “But this does not mean that equity may not at times suggest ex post facto approval of extra judicial adjustments in the manner and form in which support payments have been made.” Id. “The noncustodial parent may be entitled to credit for any additional support which he/she has evinced by satisfactory proof to the trial court.” Id.
In Bolton, the parties had resumed cohabitation after the divorce for a time, and the father was given credit for around $10,000 in payments that he was able to prove he had made for the benefit of the child during the time that the parties lived together. The credit reduced his arrearage in child support from around $14,000 to around $4,000.
To sum it up, your client may just be entitled to some credit for payments made for the benefit of the child in lieu of child support. The result appears to rely on a situation where there is either an actual live-in situation or an actual intended exchange of value in place of child support. Don’t expect your client, though, to get credit for birthday presents, new shoes, school supplies, or toys purchased in the ordinary course of being a non-custodial parent.
RENEWING A JUDGMENT UPDATED
May 24, 2011 § 4 Comments
I posted here about the then-new procedure for renewing a judgment that went into effect in 2010. That provision clarified some old statutory provisions that allowed for renewal of a judgment, but did not specify a procedure.
Effective July 1, 2011, MCA § 15-1-43 is amended to apply only to judgments or decrees that have not yet expired. The attorney applying to renew the judgment must certify that the judgment has not expired when making the application to renew the existing judgment.
A POTPOURRI OF POINTS
April 21, 2011 § 2 Comments
Every now and then a case comes tumbling down from the appellate stratosphere that is remarkable not so much for the law of that particular case, but rather for the cascade of legal nuggets it unearths that one can mine and tuck away for future profitable use. Such is Jernigan v. Young, handed down by the COA on April 19, 2011.
Samuel Jernigan and his wife Mae Bell were married in 1997. Two years later, Samuel conveyed a .38-acre tract of land to Mae Bell by quitclaim deed. He had filed for disability and was under the mistaken belief that if the land were no longer in his name his chances of a favorable ruling would improve. Samuel claims that he and Mae Bell had an oral agreement that she would convey the property back to him. There was no writing evidencing the alleged agreement.
In 1998, Mae Bell conveyed the property to her daughter Amy. It is not disclosed in the record whether Samuel was aware of the transaction.
In 1999, Samuel and Mae Bell decided to get a divorce on the sole ground of irreconcilable differences. They proceeded pro se using fill-in-the-blank forms. In one of the blanks designated to identify what property would belong to each party appeared the handwritten notation “none.”
Four days after the divorce judgment was entered, Samuel filed a document styled “Withdrawal of Consent” and asked that the divorce be set aside. He also filed a Complaint for Divorce and a pleading asking that the deed to Amy be set aisde, all of which were consolidated. The case sat idle for seven years until Amy filed for summary judgment. The chancellor granted summary judgment, which the COA affirmed.
Here are the nuggets from Judge Griffis’ opinion:
- “[W]avering on whether a divorce should be entered may often occur and does not invalidate the divorce … What is important is that the agreement be validly expressed on the day that the chancellor is considering the issue.” Sanford v. Sanford, 749 So.2d 353, 356 (Miss. App. 1999); Harvey v. Harvey, 918 So.2d 837, 839 (Miss. App. 2005).
- Relief under MRCP 60(b) requires a showing of “exceptional circumstances.” In re Dissolution of Marriage of De St. Germain, 977 So.2d 412, 416 (Miss. App. 2008).
- No hearing or testimony is required to validate a divorce on the ground of irreconcilable differences. MCA § 93-5-24(4). In an irreconcilable differences divorce the parties “bargain on the premise that reaching an agreement will avoid the necessity of presenting proof at trial.” Perkins v. Perkins, 737 So.2d 1256, 1263 (Miss. App. 2001).
- Although MCA § 93-5-2(2) requires the chancellor to determine whether the parties’ agreement in an irreconcilable differences divorce is “adequate and sufficient,” that is not a “magic phrase,” and its absence in the divorce judgment approving the agreement is not a ground for reversal. Cobb v. Cobb, 29 So.3d 145, 149 (Miss. App. 2010).
- It is not in and of itself reversible error for the chancellor not to require financial disclosure via UCCR 8.05 financial statements in an irreconcilable differences divorce. St. Germain at 417-418. Where the lack of disclosure allowed a spouse to conceal major assets, however, it could amount to reversible error. Kalman v. Kalman, 905 So.2d 760, 764 (Miss. App. 2004).
- An inter vivos deed of gift need not be supported by separate consideration. Holmes v. O’Bryant, 741 So.2d 366, 370 (Miss. App. 1999). “A man of sound mind may execute a will or deed from any sort of motive satisfactory to him, whether that motive be love, affection, gratitude, partiality, prejudice, or even whim or caprice.” Herrington v. Herrington, 232 Miss. 244. 250-251, 98 So. 2d 646, 649 (1957).
- MCA § 91-9-1 requires that any trust in land must be in writing signed by the person declaring or creating the trust, or it is void. The court may impose a constructive or resulting trust on land in the absence of a written agreement, provided that certain criteria are present. Simmons v. Simmons, 724 So.2d 1054, 1057 (Miss. App. 1998).
And the most important point of all: You get exactly what you pay for when you get a do-it-yourself divorce without benefit of legal counsel.
STAY OF EXECUTION
April 6, 2011 § 5 Comments
In a divorce the judge grants your client a judgment in the amount of $115,000 for her interest in a marital-asset business. The judge orders the husband to pay the judgment at the rate of $500 a month. Can you execute on the judgment even if the husband is making the payments as ordered by the court?
The answer is Yes, you may execute regardless of his payment history.
In the case of Jenkins v. Jenkins, handed down March 29, 2011, the COA cited Peeples v. Yarbrough, 475 So.2d 1154, 1158-59 (Miss. 1985), and reversed a chancellor’s ruling that execution on the judgment was stayed as long as the defendant made the payments as ordered. The COA held that the chancellor has no authority to stay execution on the judgment, although the judge does have the authority to order and enforce a payment schedule.
So what to do if the chancellor does include a stay with entry of the judgment? I would suggest that you file a timely MRCP 59 motion to reconsider citing Jenkins and Peeples. If you don’t, you run the risk of running afoul of your trial judge, even if his or her judgment was contrary to the law.
AN OLD LAWSUIT SCAM POPS UP AGAIN
March 17, 2011 § 1 Comment
I am sure you’re well acquainted with the lengthy law-related scam list. You’ve probably gotten emails from the infamous Nigerian money-laundering operation (a Meridian millionaire was actually burned for $49,000 some years ago in this one), or the Indonesian entrepreneurs who say they need you to represent them but really only want to get into your trust account. And so on. Philip Thomas of Jackson weighs in about scams directed at lawyers on his blog here.
Recently an old law-related scam resurfaced targeting non-lawyers. It typically arrives via e-mail or telephone message and goes something like this:
“I am calling (or emailing) you about lawsuit number 8045-SA277. Our client has obtained a judgment against you (generally for unpaid magazine subscriptions), and we are giving you the opportunity to settle this matter. The judgment is in the sum of $1,650, but you can settle this matter by remitting only $399 before noon tomorrow. If you do not, we will proceed to collection.”
Of course, there is no lawsuit, and there is no judgment, collectible or otherwise. Some of the messages are from a Carol Klein, or Christine Walker or Carol Grimes. Laughably, some of the male callers identify themselves as “Christine Walker.”
Some callers/emailers ask the recipient to “confirm” their bank account number or social security number “for security purposes.” Of course, they don’t already have that info, but will once the victim “confirms” it by supplying it.
Some people report receiving calls at home or even at work, and the callers are rude, threatening and abusive.
One of my former clients called me about this and sent this phone number, 888-243-6571, which he googled. You can click the link and read about others’ experiences. Note that the phone numbers change frequently. From the dates on some of the entries, it looks like this fraud has been around for years, but it is making a resurgence in this part of the world.
This is a heads up in the event that any of your clients call you about this. If they are going to be sued, they will receive process or at a minimum certified mail, and they should never give out credit card or bank account info or social security numbers over the phone or via email for any reason, or send money without advice of an attorney.
A MATTER OF INTEREST FOR CHILD SUPPORT CASES
February 7, 2011 § Leave a comment
MCA § 75-17-7 provides:
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 the judge to be fair but in no event prior to the filing of the complaint.
It is error for the trial court to fail to award interest on the amount adjudicated to be owed for arrearage in child support. Ladner v. Logan, 857 So.2d 764 (Miss. 2003).
Although the statute expressly states that pre-judgment interest may not extend back prior to the filing of the complaint, the rule does not apply to due and unpaid child support. That is because each payment in arrears is vested when due and becomes an automatic judgment against the obligor. Pope v. Pope, 803 So.2d 499, 501 (Miss. App. 2002). Each unpaid monthly installment begins to accrue interest at the legal rate, not from the time it may subsequently be reduced to judgment by a court, and it is error for a chancellor to reduce or eliminate the interest. Dorr v. Dorr, 797 So.2d 1008, 1015 (Miss. App. 2001). Amounts paid by an obligor in arrears are applied first to the interest obligations, and then to extinguish the principal amount of the oldest outstanding child support payment, and then the next oldest, and so on. Brand v. Brand, 482 So.2d 236, 238 (Miss. 1986).
The appellate courts have allowed the trial judges deference in setting the rate of interest. Rates from three pecrent (Brawdy v. Howell, 841 So.2d 1175, 1180 (Miss. App. 2003)) to eight percent (e.g., Houck v. Ousterhout, 861 So.2d 1000, 1003 (Miss. 2003)) have been upheld.
There is no prohibition that I know of for a property settlement agreement to provide a contract rate for interest on unpaid child support or other obligations such as alimony, but I have never seen a property settlement agreement with such a provision. The rarity is due, I am sure, to the difficulty of getting an agreement. An advantage would be that the court would be bound to the contract rate. See, e.g., Tower Loans, Inc. of Mississippi v. Jones, 749 So.2d 189, 190 (Miss. App. 1999), where the court of appeals reversed a circuit judge’s imposition of eight percent interest where the contract called for a 34.71% rate, and the contract rate was not usurious. Another advantage would apply to alimony and other non-child-support obligations in that it would allow pre-judgment interest back to the filing of the complaint for enforecement; a nice perk if you can get it. Finally, setting an interest rate at least for non-child-support obligations might be prudent in view of the authority that, if the court does not impose interest on a judgment it renders for non-child-support obligations, it is presumed that the judgment does not earn interest. Aldridge, August 28, 1998, A.G. Opinion #98-0507.
SWEEPING DUSTBUNNIES
November 18, 2010 § 2 Comments
Have you ever noticed that mistakes and missteps seem to pile up in some cases despite your best efforts, just like those dustbunnies that pile up under that buffet in your dining room no matter how hard you try?
The case of Estate of Bellino v. Bellino, decided by the Court of Appeals on November 2, 2010, is one of those “dustbunny” cases, and it merits your attention. For ease of following this, we’ll mark the dustbunnies as they accrue with the international dustbunny symbol: ¤.
Stephen and Margaret Bellino were married in 1974. During the marriage, Stephen inherited $200,000 and opened a securities account with A. G. Edwards (AGE). In 1995, he and Margaret executed a joint account agreement declaring the account to be a joint tenancy with right of survivorship.
Alas, the marriage foundered, and the erstwhile blissful couple faced off in court. Their marriage ended May 2, 2006, with entry of a final judgment of divorce.
And that is when the discombobulating deluge of dustbunnies (¤) began to develop.
It seems that the divorce judgment made no mention of the AGE account. That would be the first ¤.
Stephen became aware of the problem when he tried to make a withdrawal and was refused by AGE, which took the position that it could not allow any withdrawals until the court addressed the ownership issue. Another ¤.
Stephen filed an MRCP Rule 59 motion to alter or amend the judgment to address the oversight. Only problem is that he waited until May 15, 2006. That would be a major ¤ because it was filed more than ten days after entry of the judgment, and so the motion was time-barred.
In all the hubbub surrounding the issue, Stephen never got around to changing ownership of the account. This is one of those ¤’s that spawns lots of other ¤’s.
Before the issue could be resolved by the judge, Stephen died on June 18, 2006. Regrettable as it is, this development was also a ¤.
Stephen’s estate was duly opened in July. There is no mention of the estate being substituted as a party in the divorce action under MRCP 25. Probably a ¤.
In November, the attorney for the estate approached the chancellor and, without any notice to Margaret or her attorneys, obtained an order directing AGE to pay the funds to the estate. No question this was a ¤.
To compound matters, the attorney for the estate never filed the order (or, it appears, any motion therefor) in either the estate or divorce file, and never served it on Margaret’s attorneys. That would be ¤ ¤ ¤.
They’re beginning to pile up, aren’t they?
The chancellor set aside the order (he was likely not happy with the way it had been handled) and eventually ruled that the account was Margaret’s. A ¤.
At this point the attorney for the estate realized that the dustbunnies were getting out of hand, so he started trying to sweep them up. The problem is that when you sweep dustbunnies it tends to scatter them and they seem to proliferate, which is exactly what they did.
The attorney for the estate filed an appeal. Now, this is really a dustbunny because the issues are fairly straightforward and not really in doubt. Score another ¤.
Right off the bat the court of appeals criticized the attorney for the estate for not filing a statement of issues after being asked not once but several time by the appellate court to do so. That would be another ¤ ¤ ¤. The court even thought about not considering his brief, which is, of course a ¤.
The court of appeals ruled that Margaret got the money because Stephen never changed the account and it was hers by survivorship. A predictable ¤.
Stephen’s estate will be stuck with the cost of cleaning up all these dustbunnies, and will have nothing to show for it. That’s a ¤ right there. In the alternative, the estate could insist that its attorney bear the cost of the appeal, which would be his own personal ¤.
So there you have it. Too many dustbunnies and before you know it you have a mess too big to clean up.
DO I NEED TO FILE A MOTION FOR A NEW TRIAL TO PROTECT MY RIGHT TO AN APPEAL?
November 16, 2010 § Leave a comment
Unlike the practice in Circuit Court, where a motion to set aside the verdict and for a new trial is a prerequisite to the right to appeal, it has never been the rule in Chancery Court that a motion for reconsideration or for a new trial or for relief from judgment operate in the same fashion. In two opinions issued last year (I have not taken the time to dig them up, but they are out there), our appellate courts commented that no motion for a new trial had been filed by the appellant before taking appeal from Chancery. It raised a question in my mind whether we were poised to go in a new direction.
MRCP Rule 52(b) would seem to dispose of the matter, although I do not recall it being mentioned in the appellate decisions mentioned above. It states:
When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised regardless of whether the party raising the question has made in court an objection to such findings or has filed a motion to amend them or a motion for judgment or a motion for a new trial.
Of course, the question of sufficiency of fact to support the findings is only one possible basis of appeal. One may also appeal on the ground that the decision of the Chancellor is contrary to the law, or that there is a defect in personal jurisdiction (subject matter jurisdiction may be questioned for the first time at any point). Is a motion necessary to preserve those points?
Without doing substantial research, I can only say that in my years of practice I never saw a case where an appeal from Chancery Court was rejected for failure to file a motion for a new trial. Your mileage may vary.
The Better Chancery Practice Blog 