Some Ins and Outs of Recusal
August 13, 2018 § 3 Comments
Elle Adams filed a federal suit against the chancellor in her custody/contempt case, and, on the eve of trial filed an “emergency motion” for recusal, reasoning that the judge would be biased against her because of the suit. Elle also made other accusations against the chancellor.
In its June 12, 2018, decision in Adams v. Rice, the COA by Judge Barnes rejected Elle’s arguments. Since the opinion is a nice précis on the law of recusal, I am excerpting it here:
¶15. Elle argues that the chancellor should have recused herself because Elle had filed a federal lawsuit and judicial complaint against her alleging bias, discrimination, and misconduct. [Fn omitted] Elle reasoned that her legal actions against the chancellor would make her “even more biased” and “incapable of making appropriate decisions”; thus, recusal was necessary.
¶16. Mississippi Rule of Appellate Procedure 48B explains the proceedings on a motion to disqualify the trial judge. If a trial judge denies a motion seeking his or her recusal, the movant may seek review of the judge’s action by the Mississippi Supreme Court. Id.
¶17. The day before the hearing, Elle filed a pro se emergency motion to recuse the chancellor before the supreme court, making many of the same allegations as on appeal. Additionally, she argued that the chancellor’s “hostile acts” infringed upon her civil rights because she was denied a Spanish interpreter at the March 31, 2016 hearing. Further, she claimed the chancellor and her attorney had “ex parte communication” which was “disparaging and inappropriate,” questioning her ability to understand English, among other matters. The Mississippi Supreme Court dismissed the motion the same day, without prejudice, because Elle had failed to first seek recusal from the chancellor herself before asking for the supreme court’s review and failed to serve the chancellor with the motion. [Fn omitted]
¶18. The rule concerning disqualification of a judge is contained in Canon 3(E)(1)(a) of the Mississippi Code of Judicial Conduct. It states that “[j]udges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances . . . including but not limited to instances where . . . the judge has a personal bias or prejudice concerning a party . . . .” The Mississippi Supreme Court has held “that the objective reasonable person knowing all of the circumstances is the proper standard” to determine if a judge should have recused herself. Dodson v. Singing River Hosp. Sys., 839 So. 2d 530, 532-33 (¶9) (Miss. 2003). “[R]ecusal is required when the evidence produces a reasonable doubt as to the judge’s impartiality.” Id. at 533 (¶13). However, it is presumed that judges are qualified and unbiased. Id. at (¶10). The appellate court applies a manifest-error standard when reviewing a judge’s refusal to recuse. Sullivan v. Maddox, 122 So. 3d 75, 81 (¶15) (Miss. Ct. App. 2013) (citing Bredemeier v. Jackson, 689 So. 2d 770, 774 (Miss. 1997)).
¶19. Elle claimed the chancellor made disparaging comments about her and her family in open court and “ex parte communication” with one of Elle’s numerous attorneys before the chancery court. Also, apparently because of the chancellor’s unfavorable ruling, Elle claims that the chancellor had an “unconscious bias” against her as exhibited at the March 31 hearing (which Elle did not attend). Further, Elle argues that the chancellor could not be impartial knowing that Elle had filed a federal lawsuit and state bar complaint against her. Elle requests the judgment against her be reversed due to the alleged evidence of bias.
¶20. At the March 31, 2016 hearing, the chancellor acknowledged for the record that while she had not been served with a federal lawsuit, she was aware that Elle had filed one in Alabama against her, John, and the cities of Starkville and Columbus, Mississippi. The chancellor stated for the record that she read the complaint but found it proper to move forward with the hearing.
¶21. After reviewing the transcripts, we do not find that the chancellor made any disparaging personal comments about Elle. Nor did the transcript indicate any evidence of bias towards Elle, who failed to attend two hearings; one on motions that she filed on March 22, and the final hearing on March 31. However, the chancellor did find Elle’s “attempts to manipulate the judicial system . . . appalling.” We cannot say that it was disparaging or prejudicial that the chancellor reprimanded Elle on the record for not pursuing her own defense. Moreover, Elle did not file a motion to recuse the chancellor in the chancery court even after the Mississippi Supreme Court entered its order. Accordingly, the issue is barred.Further, there is no evidence that the chancellor’s impartiality might be reasonably questioned; therefore, the issue is also without merit.
Not mentioned in the opinion is Uniform Chancery Court Rule 1.11, which spells out the procedure required to move for recusal:
Any party may move for the recusal of a judge of the chancery court if it appears that the judge’s impartially might be questioned by a reasonable person knowing all the circumstances, or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law. A motion seeking recusal shall be filed with an affidavit of the party or the party’s attorney setting forth the factual basis underlying the asserted grounds for recusal and declaring that the motion is filed in good faith and that the affiant truly believes the facts underlying the grounds stated to be true. Such motion shall, in the first instance, be filed with the judge who is the subject of the motion within 30 days following notification to the parties of the name of the judge assigned to the case; or, if it is based upon facts which could not reasonably have been known to the filing party within such time, it shall be filed within 30 days after the filing party could reasonably discover the facts underlying the grounds asserted. The subject judge shall consider and rule on the motion within 30 days of the filing of the motion, with hearing if necessary. If a hearing is held, it shall be on the record in open court. The denial of a motion to recuse is subject to review by the Supreme Court on motion of the party filing the motion as provided in M.R.A.P. 48B.
Elle never filed such a motion in the trial court.
In Rogers v. Morin, 791 So. 2d 815, 821 (¶13) (Miss. 2001), the court held that a chancellor was not required to recuse after he remarked in a hearing that he believed that the appellant had no credibility. Weighing credibility is, after all, what chancellors do. If we were required to recuse every time we made that determination, there would be chaos.
It’s troubling to me when litigants try to manipulate the system to their advantage by making attacks on the judge assigned the case. Here, Elle tried to create grounds for recusal by filing the federal lawsuit and the judicial-performance complaint. The chancellor rightly characterized the efforts as “appalling.” I could not agree more.
It’s troubling to me when anyone, seeking to advance their own agenda, attacks the judge and the ruling and tries to negate it rather than pursuing appeal.
Extending the Time to File an Out-of-Time Appeal
August 1, 2018 § 1 Comment
Ordinarily, one must file an appeal to the MSSC from a final judgment within 30 days of the date of entry of that judgment. MRAP 4(g), however, allows the trial judge to extend the time within which to appeal.
After the State of Mississippi had obtained an injunction against him for selling watered-down gasoline at his convenience store, Ali Almasri contested the action in chancery court proceedings. The chancellor entered a permanent injunction on November 23, 2016. On January 17, 2017, Almasri filed a motion to extend the time to appeal stating that he had been unable to “complete a personal analysis of his business” within the 30-day appeal time. On February 2, 2017, the chancellor signed the order extending the appeal time to February 6, 2017. Almasri filed his notice of appeal on January 30, 2017.
On appeal, the State argued that Almasri had failed to demonstrate excusable neglect that would justify extension of the appeal time after the time for appeal had elapsed.
In Almasri v. Hyde-Smith, decided June 12, 2018, the COA agreed and dismissed the appeal. Judge Greenlee’s opinion for a unanimous court explained:
¶13. Our appellate procedural rules require that a notice of appeal must be filed “within 30 days after the date of entry of the judgment or order appealed from.” M.R.A.P. 4(a). Should a party need additional time to file a notice of appeal, the trial court may grant an extension under Rule 4(g), which provides:
The trial court may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time otherwise prescribed by this rule. Any such motion which is filed before expiration of the prescribed time may be granted for good cause and may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time shall be given to other parties, and the motion shall be granted only upon a showing of excusable neglect. (Emphasis added).
¶14. In the instant case, the chancery court entered the judgment appealed from on November 23, 2016. The thirty-day appeal period therefore ended on December 23, 2016. Almasri filed his motion to file an out-of-time appeal on January 17, 2017, fifty-five days after the judgment was entered. Therefore, in order to receive additional time to file his notice of appeal, Almasri had the burden of showing that his failure to file a timely notice was a result of “excusable neglect.” Id.; Schmitt v. Capers (In re Estate of Ware), 573 So. 2d 773, 775 (Miss. 1990).
¶15. We review a trial court’s excusable-neglect determination with a bifurcated standard. Nunnery v. Nunnery, 195 So. 3d 747, 751 (¶12) (Miss. 2016). To the extent that the trial court’s excusable-neglect determination involves the determination of legal principles, we will conduct a de novo review. Long v. Mem’l Hosp. at Gulfport, 969 So. 2d 35, 38 (¶5) (Miss. 2007). “[W]hen . . . the trial judge’s decision rests upon an examination of facts, we review for abuse of discretion and to ensure the decision is supported by substantial evidence.” Nunnery, 195 So. 3d at 751 (¶12). “Which standard to apply is a decision to be made on an ad hoc basis.” Id. (citing Bennett v. McCaffrey, 937 So. 2d 11, 14 (¶8) (Miss. 2006)).
¶16. “An excusable-neglect determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Id. at 752 (¶15) (internal quotation mark omitted). The Mississippi Supreme Court has adopted the following four-part test for excusable-neglect: “(1) the danger of prejudice to the non-movant, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith.” Id. (internal quotation marks omitted) (quoting Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 397 (1993)).
¶17. “[E]xcusable neglect is a very strict standard.” Webster v. Webster, 834 So. 2d 26, 29 (¶11) (Miss. 2002) (internal quotation mark omitted). “[S]imple inadvertence or mistake of counsel or ignorance of the rules usually does not” constitute excusable neglect. Stutts v. Miller, 37 So. 3d 1, 4 (¶9) (Miss. 2010); Holmes v. Coast Transit Auth., 815 So. 2d 1183, 1186 (¶11) (Miss. 2002). “Filing a notice is a simple act, and a party must do all it could reasonably be expected to do to perfect the appeal in a timely fashion.” Byrd v. Biloxi Reg’l Med. Ctr., 722 So. 2d 166, 169 (¶13) (Miss. Ct. App. 1998).
¶18. In his motion for an extension of time, Almasri stated that “his decision [to appeal] was based upon his own personal business analysis that was not completed until after the [thirty][-]day [filing] period . . . had expired.” Further, he argued that “he at all times acted in good faith” and “his considered decision should amount to good cause . . . to grant his requested extension.” Again, a motion for an extension filed after expiration of the thirty-day filing period requires a showing of excusable neglect, rather than good cause. In re Estate of Ware, 573 So. 2d at 775.
¶19. From the record, it is unclear whether the chancellor granted Almasri’s motion based on good cause or excusable neglect. However, even assuming the chancellor used the correct standard in making his decision, we find that Almasri did not demonstrate excusable neglect. Almasri knew the entry date of the final judgment against him, and there is no assertion that he was unaware of his deadline to file a notice of appeal. Further, Almasri offers no evidence of why he was unable to complete his business analysis within the thirty-day period following final judgment or why such would be excusable neglect. We thus find Almasri’s reason for delay was within his reasonable control. And although Almasri may have acted in good faith, “[e]quity aids the vigilant and not those who slumber on their rights.” In re Estate of Winding, 783 So. 2d 707, 711 (¶15) (Miss. 2001).
¶20. Under Rule 4(g), the chancellor’s discretion to grant Almasri’s motion for an extension was limited; he only had authority to grant the motion upon a showing of excusable neglect. Almasri made no such showing to the trial court. Therefore, we hold that the chancellor abused his discretion in granting Almasri’s motion to extend the time in which to file a notice of appeal.
¶21. This appeal is dismissed for lack of jurisdiction.
I am willing to bet that, had the chancellor said something like, “This isn’t enough; you have to make a record on the elements of excusable neglect,” he would have been accused of nitpicking and met with a whining plea just to sign the order and get it over with. Sometimes, especially when the judge has many other things to tend to, it’s easier for the judge just to shrug his shoulders and say, “Okay, I’ll do it your way.”
Setting Aside a Default Judgment
July 23, 2018 § 1 Comment
MRCP 55 governs defaults.
R55(a) states that “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.
R55(b) provides: “In all cases the party entitled to a judgment by default shall apply to the court therefor. …”
R55(c) says that: “For good cause shown, the court may set aside a default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).”
This is R60(b):
(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. Leave to make the motion need not be obtained from the appellate court unless the record has been transmitted to the appellate court and the action remains pending therein. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action and not otherwise.
Aside from the plain language of the rules, how have the courts addressed the setting aside default judgments?
The COA’s decision in Emery v. Greater Greenville Housing and Revitalization Association, handed down June 12, 2018, took on the appellant’s claim that the chancellor erred in refusing to set aside a default judgment entered against him. Judge Carlton wrote the opinion:
¶23. As the Mississippi Supreme Court has explained, “[a]ccording to Rule 55(c), a default judgment may be set aside ‘[f]or good cause shown’ and in accordance with Rule 60(b).” BB Buggies, Inc. [v. Leon], 150 So. 3d [90] at 101 (¶23) [(Miss. 2014)] (quoting M.R.C.P. 55(c)). The Court has articulated a three-pronged balancing test the trial court must apply in determining whether to set aside a judgment pursuant to Rule 60(b):
(1) the nature and legitimacy of the defendant’s reasons for his default, i.e. whether the defendant has good cause for default,
(2) whether the defendant in fact has a colorable defense to the merits of the claim, and
(3) the nature and extent of prejudice which may be suffered by the plaintiff if the default judgment is set aside.
Id. As noted above, we apply an abuse of discretion standard in reviewing the chancery court’s denial of Emery’s motion to set aside the default judgment. If the chancery court’s decision is based upon an error of law, however, we will reverse. Tucker [v. Williams], 198 So. 3d 299, 309 (¶24) [(Miss. 2016)].
The decision goes on to analyze the facts of this particular case over the next dozen pages, reaching the conclusion that Emery failed to prove the necessary elements, and that the chancellor was not in error by refusing to set aside the default. You can read the opinion for yourself. It’s too lengthy and case-specific to be reproduced here.
Usually the lawyer is called upon to rescue the client from the client’s own failure and neglect to tend to his or her business that resulted in the default. That puts the lawyer in the unenviable digging-out-of-the-hole mode.
Sometimes it’s the lawyer’s oversight that put the client in the default hole. Don’t expect the chancellor to cut you any more slack than she would a lay person in the same situation. You still have to prove good cause, colorable defense, and nature of any resulting prejudice.
Dodging the Summary Judgment Bullet
June 19, 2018 § 3 Comments
Daren Froemel filed a will contest claiming that his mother, Mary Lou, lacked mental testamentary capacity when she made her will. The beneficiaries of the will filed a motion for summary judgment with affidavits of the subscribing witnesses and others attesting to her mental capacity. Daren responded in an answer that the discovery revealed Mary Lou had been hospitalized at the time for “altered mental status,” and that she had been prescribed and was taking 22 different medications, including morphine. He argued that those facts established a basis to deny summary judgment, but he did not file counter-affidavits. The chancellor granted summary judgment in favor of the beneficiaries, and Daren appealed.
In Estate of Froemel: Froemel v. Williams, et al., handed down May 8, 2018, the COA affirmed. Judge Lee penned the unanimous opinion:
¶13. Here, the beneficiaries offered the will, and it was admitted to probate. Thus, they established a prima facie case regarding Mary Lou’s testamentary capacity. Additionally, when the beneficiaries moved for summary judgment in response to Daren’s contest, they attached four affidavits of individuals that testified as to MaryLou’s mental capacity. At this point, Daren was required to respond to the summary judgment motion with some evidence to rebut the beneficiaries’ prima facie case to show a genuine issue for trial. Daren, however, filed an answer in response—and nothing more—in which he reiterated that Mary Lou had been hospitalized for altered mental status and had prescriptions for twenty-two medications. Following the reiteration of these two facts, Daren stated in his response, “Clearly, a genuine issue of material fact exists in regards to the decedent’s mental state.”
¶14. It is well settled that “[t]he existence of a genuine issue of material fact will preclude summary judgment.” Calvert v. Griggs, 992 So. 2d 627, 632 (¶11) (Miss. 2008). However, we note that “[a] fact is neither material nor genuinely contested . . . merely because one party proclaims it so.” Suddith v. Univ. of S. Miss., 977 So. 2d 1158, 1167 (¶10) (Miss. Ct. App. 2007). “The mere allegation or denial of material fact is insufficient to generate a triable issue of fact and avoid an adverse rendering of summary judgment.” Kaigler v. City of Bay St. Louis, 12 So. 3d 577, 583 (¶27) (Miss. Ct. App. 2009) (internal quotation marks omitted) (quoting Palmer v. Biloxi Reg’l Med. Ctr. Inc., 564 So. 2d 1346, 1356 (Miss. 1990)). “More specifically, the plaintiff may not rely solely upon the unsworn allegations in the pleadings, or arguments and assertions in briefs or legal memoranda.” Id.
¶15. In the instant case, Daren rested upon the mere allegations in his pleadings and summarily concluded there was a genuine issue of material fact. While Mary Lou’s hospitalization and prescriptions the month prior to the execution of her will may have been important facts in this case, there was no evidence of a genuine issue of material fact—namely, that Mary Lou lacked testamentary capacity as determined by the three relevant factors at the time she executed her will. Daren offered no testimony by affidavit, deposition, or otherwise regarding Mary Lou’s testamentary capacity. Our supreme court has offered the following in response to a nonmovant’s failure to appropriately respond to a summary judgment motion:
[W]e wish to make it clear that this Court intends to enforce Rule 56(e), which requires affidavits or other evidence establishing “a genuine issue for trial.” Miss. R. Civ. P. 56(e). Those who practice before our trial courts are well advised to respond to summary judgment motions with affidavits, deposition testimony, responses to discovery, and other evidence approved by Rule 56, allowing our trial judges a fair look at whether triable issues of material fact exist. As the rule specifically provides, parties may not simply rely on their pleadings . . . .
Franklin Collection Serv. Inc. v. Kyle, 955 So. 2d 284, 291 (¶24) (Miss. 2007).
¶16. Because the beneficiaries established a prima facie case that the will was valid—and specifically that Mary Lou possessed testamentary capacity at the time of its execution—and Daren failed to rebut the prima facie case with any summary-judgment evidence that there
was a genuine issue for trial, the trial court did not err in granting summary judgment.
Daren’s shortcoming in this case was to respond to the affidavits with mere assertions. Had he offered an affidavit with interrogatory answers and deposition excerpts attached, the outcome might have been different.
Still, were the requirements of Franklin actually satisfied here? Daren did cite to “discovery,” which we will assume here to include interrogatory responses and depositions, both of which must be sworn, and possibly responses to requests for admission. But are they a part of the record? Well, nowadays nobody files that stuff in the record. Merely referring to it without attaching excerpts supporting your position is like saying, “You’ll have to take my word for it, Judge.” Again, an affidavit with excerpts attached would likely have made a difference.
Another cause for pause is the language of R56 itself. R56(c) specifies that “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” If any … I wonder what that means amidst all that other material the court is supposed to consider?
The moral of this story is to file one or more affidavits, even if all you are relying on is discovery material.
What You May Get with a Motion for Reconsideration
April 25, 2018 § Leave a comment
Continuing with yesterday’s R59 theme, we turn to the question of what, exactly, are you asking for when you make a R59 motion, and how does what you ask for shape what you’re likely to get?
It wound up being an issue for one Tracy Dixon. After the chancellor denied his request for modification, Tracy filed a “Motion for Reconsideration, Correction of Judgment, or in the Alternative for a New Trial.” The chancellor entered an order granting a new trial without ruling on the merits of any issues in the case. Without holding a new trial or hearing any further evidence, the chancellor entered a revised opinion and amended final judgment unfavorable to Tracy. He appealed.
The COA affirmed in Dixon v. Dixon, handed down February 6, 2018. Judge Wilson expounded for the 5-4 majority:
¶29. In his final issue on appeal, Tracy argues that the chancellor exceeded his authority under the Mississippi Rules of Civil Procedure by entering a revised opinion and amended final judgment. As discussed above, after the initial final judgment was entered (on February 10, 2016, nunc pro tunc January 26, 2016), Tracy filed a “Motion for Reconsideration, Correction of Judgment, Or In The Alternative For New Trial.” The chancellor then entered an order granting a “new trial,” which did not address or rule on the merits of any of the issues in the case. Finally, without holding a “new trial” or hearing any additional testimony or evidence, the chancellor entered a revised opinion and amended final judgment, which is the subject of this appeal. Tracy argues that the chancellor’s entry of a revised opinion and
amended final judgment violated Rule 59(d), which provides as follows:
Not later than ten days after entry of judgment the court may on its own initiative order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a timely motion for a new trial for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor.
M.R.C.P. 59(d). Specifically, Tracy argues that the chancellor effectively ordered a “new trial”—either sua sponte or “for a reason not stated in [Tracy’s timely] motion” for a new trial. Id. If the former, Tracy says that the chancellor violated Rule 59(d) by acting more than “ten days after entry of judgment.” Id. If the latter, Tracy says that the chancellor violated Rule 59(d) by not “giving [him] notice and an opportunity to be heard.” Id.
¶30. We conclude that Tracy has misinterpreted the case’s procedural history and the chancellor’s rulings. Tracy’s “Motion for Reconsideration” primarily sought to alter or amend the judgment in various respects—he sought to change the final judgment based on the evidence already presented, not a “new trial.” In fact, the motion’s prayer for relief did not even mention a “new trial.” Rule 59(a)-(d) governs a motion for a new trial. However, Rule 59(e) governs a motion to alter or amend the judgment.
¶31. Rule 59(e) simply provides that “[a] motion to alter or amend the judgment shall be filed not later than ten days after entry of judgment.” M.R.C.P. 59(e). Interpreting the nearly identical federal rule, [Fn omitted] federal courts have held that “[a] judge may enlarge the issues to be
considered in acting on a timely motion under Rule [59(e)].” Charles v. Daley, 799 F.2d 343, 347 (7th Cir. 1986). The court may amend any part of the judgment, and the court is not limited to the grounds raised in the motion. EEOC v. United Ass’n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of the U.S. & Canada, Local No. 120, 235 F.3d 244, 250 (6th Cir. 2000). “The salient fact is that a motion to amend judgment was timely filed. Such gave the [trial] court the power and jurisdiction to amend the judgment for any reason, if it chose to do so, and it was not limited to the ground set forth in the motion itself.” Varley v. Tampax Inc., 855 F.2d 696, 699 (10th Cir. 1988); accord Bullock v. Buck,
611 F. App’x 744, 746 n.2 (3d Cir. 2015) (“In ruling on a Rule 59(e) motion, a District Court is not limited to the grounds set forth in the motion itself.”); Walker v. Walker, 216 So. 3d 1262, 1272-74 (Ala. Ct. Civ. App. 2016).
¶32. We conclude that these decisions are consistent with our Supreme Court’s recognition of a trial court’s “broad[] discretionary authority under Rule 59(e) to grant relief.” Bruce v. Bruce, 587 So. 2d 898, 904 (Miss. 1991). Our Supreme Court has held that “[w]hen hearing a motion under Rule 59(e), a trial court proceeds de novo, if not ab initio.” Id. “Rule 59(e) provides the trial court the proverbial chance to correct its own error . . . .” Id.
¶33. Tracy’s filing of a timely motion to alter or amend the judgment under Rule 59(e) suspended the finality of the judgment and permitted the chancellor to consider the various issues in this case “de novo, if not ab initio.” Id. At that point, the chancellor had “the power and jurisdiction to amend the judgment for any reason, if it chose to do so, and it was not limited to the ground set forth in the motion itself.” Varley, 855 F.2d at 699. On appeal, we review the chancellor’s amended final judgment on its own merits.
So R 59(e) is one of those proverbial two-edged swords, kind of like asking your law-school professor to look back over your paper to see whether she could possibly find that extra point on the exam to get you that 3.0; the search might take the result in the opposite direction.
The Rule 59 Motion and the Scope of the Appeal
April 24, 2018 § Leave a comment
Can an MRCP 59 motion that is limited in scope have the effect of limiting the scope of your appeal?
Jennifer Baumbach argued in her appeal to the COA that her ex, Robert, had foregone the issue of child custody by not raising it in his R59 motion following entry of their divorce judgment. In the case of Baumbach v. Baumbach, decided April 3, 2018, the court rebuffed her argument, per Judge Barnes:
¶20. Citing Jennifer’s previous attempts to interfere with his visitation, Robert claims the chancellor’s decision to award Jennifer sole physical custody of the children “was against the weight of the evidence and should be overturned.” Jennifer contends that because Robert did not address the issue of custody in his motion to amend the judgment, he is procedurally barred from asserting it on appeal. However, in reference to Mississippi Rule of Civil Procedure 59, the Mississippi Supreme Court has stated:
[Although i]t is clearly the better practice to include all potential assignments of error in a motion for new trial . . . when the assignment of error is based on an issue [that] has been decided by the trial court and duly recorded in the court reporter’s transcript, . . . [an appellate court] may consider it regardless of whether it was raised in the motion for new trial.
Kiddy v. Lipscomb, 628 So. 2d 1355, 1359 (Miss. 1993); see also Jackson v. State, 423 So. 2d 129, 131 (Miss. 1982) (“[I]t is not necessary to make a motion for a new trial grounded upon errors shown in the official transcript of the record, including the pleadings, transcribed evidence, instructions, verdict[,] and judgment of the court.”). Since the issue of child custody was clearly decided by the chancery court at trial, we find any failure to raise this issue in Robert’s motion to alter or amend the judgment does not bar it from review on appeal.
That certainly has been the rule in chancery court bench trials from time immemorial, or at least as long as I can remember. I’ve posted about it previously here and here.
Notwithstanding all that, I still encourage you to plead the figurative kitchen sink in your R59 motions. A post explaining my thoughts on the matter is at this link.
The Test(s) for Unconscionability
April 17, 2018 § 1 Comment
Carl Smith filed an action to set aside or modify the final judgment in his divorce case, alleging coercion and unconscionability. The irreconcilable differences divorce, incorporating the agreement between his ex-wife Lisa Doe and him, was entered two and one-half years before the filing of Carl’s action. The chancellor rejected Carl’s arguments, and he appealed.
After addressing and disposing of Carl’s MRCP 60 issues, the MSSC affirmed in Smith v. Doe, decided January 25, 2018. On the issue of unconscionability, Justice Maxwell wrote for the 7-2 majority:
¶16. The chancellor alternatively found that, even if Carl’s filing was deemed timely under Rule 60, it still lacked merit. After review, we agree. While we find no abuse in the chancellor refusing to set aside the agreement under Rule 60(b), we also see no error in the chancellor’s finding Carl was not overly browbeaten or otherwise coerced into signing a procedurally or substantively unconscionable agreement.
A. Procedural Unconscionability
¶17. “Procedural unconscionability may be proved by showing ‘a lack of knowledge, lack of voluntariness, inconspicuous print, the use of complex legalistic language, disparity in sophistication or bargaining power of the parties and/or an opportunity to study the contract and inquire about the contract terms.’” East Ford, Inc. v. Taylor, 826 So. 2d 709, 714 (Miss. 2002) (quoting Pridgen v. Green Tree Fin. Servicing Corp., 88 F. Supp. 2d 655, 657 (S.D. Miss. 2000)). But here, the chancellor found none of these problems.
¶18. To the contrary, after sifting the testimony and evidence, the chancellor found Carl “was able to make the payments, he understood the terms ofthe contract[,] and he voluntarily entered into the Agreement.” Our review of the record shows strong support for these discretionary findings.
¶19. The agreement was incredibly clear. It emphasized that its terms strongly favored Lisa, and it mentioned why. The written explanation of Carl’s enhanced obligations was not inconspicuous or hidden in fine print or a footnote—it was front and center in the agreement.
¶20. Furthermore, Carl’s new procedure-based challenge is also completely at odds with his prior written acknowledgment that his and Lisa’s negotiations were even-handed and not the product of duress, coercion, or overreaching. The agreement says so:
ACKNOWLEDGMENT OF FAIRNESS IN EXECUTION OF DOCUMENT:
Husband and Wife agree that this Settlement Agreement is not entered into as a result of any fraud, duress, misrepresentation, overreaching, coercion, or undue influence. In executing this document, both Husband and Wife acknowledge and agree that they are free from any of these matters, and are executing this agreement as their own voluntary and free act, and that they do so knowingly and willingly . . . .
And his claim that Lisa kept him from obtaining counsel not only conflicts with her testimony but is also undercut by the agreement:
ATTORNEYS:
. . . Husband agrees that he has been encouraged to and has had adequate opportunity and has been free to seek his own legal representation or other advice concerning this matter, before he signed and obligated himself to this Settlement Agreement.
¶21. The chancellor essentially found Carl knew exactly what he was doing and exactly what he was obligating himself to do when he signed the settlement agreement. Indeed, according to the agreement, Carl accepted its strict terms based on “the unique difficulties in which [his] behavior has placed the family unit[.]” The chancellor recognized this and noted that “[Carl] was in a place of self-loathing and felt extreme guilt for his choices that had caused the destruction of his marriage and family.” That his extramarital activities and devious behavior gave Lisa the upper hand in negotiating a favorable settlement did not negate that Carl “freely and willingly” agreed to the settlement’s terms. Nor did Carl’s “self-imposed guilt” and Lisa’s “obvious hostility,” in the chancellor’s view, amount to an unconscionable disparity of bargaining power. Based on his advanced education, Carl was certainly aware of the finality of signed legal contracts and judgments. And the chancellor’s findings and the agreement’s express acknowledgments undermine Carl’s newly minted procedural-unconscionability claim.
B. Substantive Unconscionability
¶22. “Substantive unconscionability occurs when the terms of the agreement are so one-sided that no one in his right mind would agree to its terms.” West v. West, 891 So. 2d 203, 213 (Miss. 2004) (citing In re Johnson, 351 So. 2d 1339, 1341 (Miss. 1977)). Considering the agreement’s terms, the chancellor found Carl “was able to make the payments . . . .” And he understood the heightened terms, which he voluntarily accepted. Though the settlement agreement was disadvantageous to Carl, the chancellor could not find that no person in his senses would accept it. See id. This finding is supported by the record.
¶23. In addition, Carl testified he is “very stable” financially. Indeed, his Rule 8.05 [Fn omitted] disclosure shows a monthly surplus of more than $5,000 after support obligations, expenses, and taxes are paid. It is also undisputed that Carl has abided by the agreement’s terms, making all required payments for more than two-and-a-half years.
¶24. The chancellor did recognize support provisions are modifiable where an unanticipated substantial or material change in circumstances arises. See Wallace v. Bond, 745 So. 2d 844, 848-49 (Miss. 1999); McDonald v. McDonald, 683 So. 2d 929, 931 (Miss. 1996). But Carl did not suggest or prove his financial circumstances had materially changed. So the court found no showing of a material change in circumstances warranting a downward modification.
¶25. An agreement made between parties should ordinarily be enforced. Williams v. Williams, 37 So. 3d 1171, 1174 (Miss. 2010). And courts should “take a dim view of efforts to modify it, as we ordinarily do when persons seek relief from their improvident contracts.” Id. (quoting West, 891 So. 2d at 211). Absent a finding of unusual circumstances—like fraud, overreaching, or mistake—“parties are afforded wide latitude in entering property settlement agreements.” Id. (citing Steiner v. Steiner, 788 So. 2d 771, 776 (Miss. 2001)).
¶26. Here, the chancellor “expressly determined that no fraud or overreaching existed in this matter.” Thus, he deemed “all provisions of the agreements regarding fixed alimony or a division of property” nonmodifiable. We therefore find, even if Carl’s motion was not snagged on the chancellor’s Rule 60(b)(1) and Rule 60(b)(6) timeliness findings, the chancellor did not abuse his discretion in alternatively rejecting the merits of the unconscionability claims.
A couple of morals to this story come to mind …
- One is that the words of the agreement are powerful and binding. Some of that boilerplate you have been adding to your agreements can carry some serious weight. Why? Because the court looks first to the words used by the parties in trying to determine their intent. If Carl felt coerced in the inducement he should not have said expressly that he had not been coerced. If he was deprived of the right to counsel, he should not have signed off on the language to the contrary.
- Another is that it’s hard as the dickens to get a judgment — particularly an agreed judgment — set aside. Oh, it can be done, but it’s a herculean task.
The authority for unconscionability in this case is something you might use to analyze and present a claim that a pre-nuptial agreement does or does not meet the test of conscionability as set out in the MSSC’s 2015 Sanderson v. Sanderson case about which I posted at this link.
The Effect of Interpleader on a Counterclaim
April 9, 2018 § Leave a comment
We posted previously about the COA’s decision in Pulliam v. Alfa Ins. Co. and Nance, in which the court upheld a chancellor’s decision that C.D. Pulliam had no authority to change the ownership and beneficiary of a life insurance policy owned by his deceased daughter.
Another issue raised by Mr. Pulliam on appeal is whether the chancellor erred in ruling that his counterclaim was rendered moot when the court approved the interpleader by Alfa. The question is whether the trial court’s granting of the request to interplead funds operates as a release of the interpleader’s liability as to the funds. C.D. had claimed that the litigation, including the interpleader, was made necessary by Alfa’s own negligence and misconduct. Did the interpleader act to absolve Alfa of any wrongdoing?
Judge Wilson wrote the COA’s unanimous opinion on the issue:
¶13. Mississippi Rule of Civil Procedure 22 permits a plaintiff to file a complaint for interpleader and join as defendants “[p]ersons having claims against the plaintiff . . . when their claims are such that the plaintiff is or may be exposed to double or multiple liability.” M.R.C.P. 22(a). “Any party seeking interpleader . . . may deposit with the court the amount claimed, . . . and the court may thereupon order such party discharged from liability as to such claims and the action shall continue as between the claimants of such money . . . .” M.R.C.P. 22(b). Interpleader protects a stakeholder subject to competing claims to identifiable funds “from being obligated to determine at his peril which claimant has the better claim.” M.R.C.P. 22 cmt. “[A]nd, when the stakeholder himself has no interest in the fund, [interpleader] forces the claimants to contest what essentially is a controversy between them without embroiling the stakeholder in the litigation over the merits of the respective claims.” Id. “The primary test for determining the propriety of interpleading the adverse claimants and discharging the stakeholder is whether the stakeholder legitimately fears
multiple vexations directed against a single fund.” Id.
¶14. “Ordinarily, interpleader is conducted in two ‘stages.’” Id. In the first stage, the court determines “whether the plaintiff is entitled to interplead the defendants,” and in the second stage, the court determines who is entitled to the interpled funds. Id. Alfa has admitted from the outset of this litigation that the beneficiary of the subject life insurance policy is entitled to its proceeds, which Alfa deposited with the chancery court. And Alfa’s complaint only asked the chancery court to identify the proper beneficiary or beneficiaries under the policy. Therefore, Alfa emphasizes that its role should be limited to the “first stage” of the interpleader action.
¶15. We have no difficulty affirming the chancery court’s determination that Alfa was entitled to interplead the defendants. Indeed, this case presents a common, well-recognized scenario in which interpleader is appropriate. See, e.g., Jeffrey Jackson & Jason D. Childress, Mississippi Insurance Law and Practice § 19:12 (3d ed. 2017) (“A life insurer that is uncertain regarding to whom policy proceeds should be paid may interplead the competing claimants and tender the policy proceeds to the court.”); 7 Charles Alan Wright, Arthur R. Miller et al., Federal Practice and Procedure § 1705 (3d ed. 2001) (“Typical examples involve multiple claims against a life-insurance company for the proceeds of a policy that
focus on an attempted change of beneficiary . . . .”). Alfa legitimately feared multiple liability based on competing claims to the same life insurance proceeds. Therefore, interpleader was appropriate. See M.R.C.P. 22(a) & cmt.
¶16. On appeal, C.D. argues that interpleader is not appropriate because Alfa has “unclean hands.” By “unclean hands,” C.D. means that Alfa’s alleged tortious conduct is responsible for the failure of his attempt to change the ownership and beneficiaries of the policy—or perhaps that Alfa induced him to pay premiums on a policy that he did not own. However, C.D.’s allegations—even if true—are not a defense to Alfa’s interpleader complaint.
¶17. C.D.’s argument harkens back to the “historical requirements” for “equitable interpleader.” First Nat’l Bank of Vicksburg v. Middleton, 480 So. 2d 1153, 1155 (Miss. 1985). “Historically”—that is, prior to the adoption of the Mississippi Rules of Civil Procedure—“equitable interpleader ha[d] four requirements,” one of which was that the party seeking interpleader “must have incurred no independent liability to either of the claimants.” Id. (quoting V.A. Griffith, Mississippi Chancery Practice § 23 (2d ed. 1950)). However, our Supreme Court held that “Rule 22 of the Mississippi Rules of Civil Procedure . . . terminated the historical requirements for interpleader in the chancery courts,” including the no
independent-liability requirement. Id. at 1155, 1156-57. The Court explained that Rule 22 was “designed to eliminate the technicalities which formerly limited the use of interpleader, and thereunder interpleader is available to cover any situation of exposure to multiple liability under the procedure outlined in the rule.” Id. at 1156 (emphasis added) (quoting 48 C.J.S. Interpleader § 5, at 125-26 (1981)). Rule 22 is to be applied “liberally” and not subjected to “technical” limitations, “and any doubts should be resolved in favor of permitting an interpleader action to lie.” Id. Rule 22 “interpleader is a procedural device” “directed toward increasing the availability of interpleader.” Id. Its availability is not subject
to the equitable doctrine of unclean hands. Because interpleader was appropriate, and because Alfa deposited the full amount of the life insurance proceeds with the court, the chancery court appropriately released and discharged Alfa from any liability under the policy and as to the interpled funds. See M.R.C.P. 22(b) & cmt.
¶18. However, C.D.’s counterclaims against Alfa present a different issue. To begin with, it is clear that counterclaims are permissible in an interpleader action. See Robertson v. La Linda Inc., 548 So. 2d 1308, 1311-12 (Miss. 1989); Middleton, 480 So. 2d at 1156-57; M.R.C.P. 22 cmt. (explaining that counterclaims by a claimant against the party that initiated the interpleader may be litigated in the second or third stage of an interpleader action); James W. Shelson, Mississippi Chancery Practice § 17:3 (2017) (“All . . . counterclaims . . . are appropriate for a resolution in the course of the interpleader proceedings, and the court will be in error if it refuses to entertain and decide all claims.”); see also Kentucky Cent. Life Ins. v. Vollenweider, 844 S.W.2d 460, 461 (Mo. Ct. App. 1992) (interpleader action to determine rights to proceeds from life insurance policy; one claimant counterclaimed against insurer for misleading the insured “on how to go about changing ownership of the policy”; the appellate court noted that the counterclaim had been stayed pending appeal).
¶19. In this case, Alfa’s motion for summary judgment in the chancery court did not directly address C.D.’s counterclaims. Rather, Alfa’s motion addressed the availability of the interpleader procedure and Alfa’s liability under the insurance policy as to the interpled funds (the proceeds of the policy). Moreover, it is clear that the chancery court’s order granting summary judgment to Alfa did not address the merits of C.D.’s counterclaims. The court’s order expressly stated that C.D.’s countercomplaint was “dismissed as moot.”
¶20. C.D.’s independent claims against Alfa for negligence, fraud, and other torts may or may not have any merit. No court has addressed that issue, which is not before us on appeal. However, C.D.’s counterclaims are not “moot.” They are separate and independent tort claims against Alfa. Moreover, Alfa’s discharge from liability under the terms of the insurance policy did not terminate or bar C.D.’s tort claims. C.D. properly asserted these claims as counterclaims in the interpleader action, and the chancery court’s refusal to entertain the claims was in error. See supra ¶18.
¶21. On appeal, Alfa argues that C.D.’s counterclaims involve distinct issues of fact and law and, thus, are only “permissive counterclaims,” not “compulsory counterclaims.” Alfa also predicts that C.D. “would likely seek discovery as to Alfa and its agents were [he] to proceed on [his] negligence claim.” Alfa argues that, for these reasons, C.D.’s counterclaims “were properly dismissed as moot.” However, characterization of the counterclaims as “permissive” or “compulsory” is irrelevant to the issues in this appeal. Even assuming (solely for the sake of argument) that the counterclaims were not compulsory, that does not render the claims “moot.” Again, C.D. was entitled, under Mississippi Rules of Civil Procedure 13 and 22, to assert counterclaims against Alfa in this interpleader action. That being the case, it was error for the chancery court to dismiss the claims as “moot.”
¶22. In summary, with respect to Alfa, we affirm the judgment of the chancery court insofar as the court permitted Alfa to interplead the defendants and discharged Alfa from liability under the policy and with regard to the interpled funds. However, we reverse and remand the judgment of the chancery court insofar as it dismissed C.D.’s counterclaims against Alfa as “moot.” …
The court, then, goes on to affirm the chancellor’s ruling that C.D. had no authority to change ownership or the beneficiary of the policy. Does that not render His counterclaim moot, since it charged
” … breach of contract, breach of the duty of good faith and fair dealing, negligence, gross negligence, bad faith failure to adjust and pay an insurance claim, tortious breach of contract, and punitive damages. C.D.’s countercomplaint generally alleged, among other things, that he
had paid all premiums on the policy after Annie’s death, that Alfa’s agents or employees had filled out the change-of-ownership forms for him, and that any mistake in making the change of ownership and designation of new beneficiaries was the result of Alfa’s tortious conduct.” (¶7)?
If C.D. had no power to change ownership or the beneficiary, how was he injured by Alfa’s negligent or even willful failure and refusal to allow him to do so?
No Findings = Reversal
April 2, 2018 § 1 Comment
It’s axiomatic that the chancellor’s conclusions have to be supported by findings of fact.
A recent iteration of that rule is in Gipson v. Jackson, a COA case decided February 13, 2018, in which the court reversed and remanded a case for failure of the judge to make findings supporting an upward modification of child support in excess of the statutory child-support guidelines. Judge Westbrook wrote for the court:
¶9. Gipson argues that the chancellor failed to make specific findings on the record, as required for a modification of child support; yet there was a $200 increase. [Fn 3]
[Fn 3] Jackson asserts that the core issue of the case is whether the chancellor has the authority to increase child-support payments for a noncustodial parent without providing any factual support for his decision or consulting the Mississippi Child Support Guidelines. Jackson further asserts that this issue is an issue of first impression. However, this Court and the Mississippi Supreme Court have addressed child-support modifications involving a noncustodial parent and specific on-the-record findings of fact. See Dailey v. McBeath, 151 So. 3d 1038, 1044 (¶16) (Miss. Ct. App. 2014); Klein v. McIntyre, 966 So. 2d 1252, 1258 (¶20) (Miss. Ct. App. 2007); Wallace v. Bond, 745 So. 2d 844, 847 (¶11) (Miss. 1999).
¶10. This Court has held that “the chancellor must apply the guidelines to make the determination that their application would be unjust.” Evans v. Evans, 75 So. 3d 1083, 1091 (¶31) (Miss. Ct. App. 2011) (citation omitted). But there are exceptions to the guidelines regarding the modification of child support in Mississippi Code Annotated section 43-19-103 (Rev. 2015). This section provides:
The rebuttable presumption as to the justness or appropriateness of an award or modification of a child[-]support award in this state, based upon the guidelines established by [Mississippi Code Annotated section] 43-19-101 [(Rev. 2015)], may be overcome by a judicial or administrative body awarding or modifying the child[-]support award by making a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined according to the following criteria:
(a) Extraordinary medical, psychological, educational or dental expenses.
(b) Independent income of the child.
(c) The payment of both child support and spousal support to the obligee.
(d) Seasonal variations in one or both parents’ incomes or expenses.
(e) The age of the child, taking into account the greater needs of older children.
(f) Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.
(g) The particular shared parental arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent’s homemaking services.
(h) Total available assets of the obligee, obligor and the child.
(i) Payment by the obligee of child-care expenses in order that the obligee may seek or retain employment, or because of the disability of the obligee.
(j) Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.
Miss. Code Ann. § 43-19-103 (emphasis added).
¶11. Jackson presented a Rule 8.05 financial statement to the chancery court, and Gipson testified that he could pay an increase in child support – although the amount of the increase was not discussed. The chancery court discussed the fact that Gipson and his wife traveled frequently and the fact that Gipson had purchased gifts [Fn omitted] for himself and his wife. However, the chancellor made no specific findings as to Gipson’s adjusted gross income and gave no specific reasons for deviating from the guidelines.
¶12. The chancellor stated that while Gipson was not working due to a chronic ankle injury, he could get a part-time job and earn more income. The chancellor also stated the following:
As to the modification of child support, there’s no doubt in this [c]ourt’s mind that this man can work. He is what you call a typical deadbeat. For a man to make only $500.00 a month, and has got all of the toys around his house that he’s got, but they belong to daddy. This [c]ourt wasn’t born yesterday. And he says he likes to fish[.] I do[,] too. It costs me $50.00 to $100.00 every time I go fishing — gasoline, the bait, and everything else. But this man is able to fish, he is able to do carpenter work, he is able to do a lot of other stuff, but he physically cannot hold out to hold a job. This [c]ourt doesn’t believe it. I’m going to set the child support at $350.00 a month, increase it.
¶13. However, we find that the increase in child support was based upon speculative income. In order for there to be a deviation from the guidelines, there must be specific findings of fact on the record. Further, “[w]hen a chancellor makes a ruling without specific findings of fact and a party raises the issue of the amount of child support awarded, this Court will send the issue back to the lower court for the mandatory specific findings of fact as to why the chancellor deviated from the guidelines.” Dailey, 151 So. 3d at 1044 (¶16). As a result, the chancery court’s upward modification of child support is reversed and remanded in order for the chancellor to make specific on-the-record findings that the application of the child-support guidelines would be unjust or inappropriate in this case.
As I have said here before, this do-over could have been avoided:
- Here, seeing that the judge was going off on somewhat of a tangent, it might have been a good idea to ask the court for leave to develop more testimony that would have supported detailed findings by the judge. And then, at the conclusion of the proof, make a motion to conform the pleadings to the proof, since the issue was tried without objection by consent.
- If you are tasked with drafting the judgment, make sure you address each and every Ferguson and Armstrong factor addressed by the court, with a brief stab at the court’s findings. When you do that you have documented what was not documented here — that the judge did analyze the proper factors. And this goes for every kind of case in which trial factors are required to be addressed.
- If for some reason the bench ruling is not transcribed, ask the court before everyone is finally dismissed to order that it be done. If that does not work, file a motion to supplement the record to add the bench ruling.
- If you can’t get the bench ruling into the record, file a timely R59 motion asking the court to make the appropriate findings.
- Oh, and it should go without saying that it is your responsibility as counsel for one of the parties to make a record of the applicable factors in your case. The judge can not address them without evidence to support them. If you’re wondering what the applicable factors are, here is a link to lists of them , which I have referred to as “Checklists.”
… And More on R41(b) Dismissal
March 27, 2018 § Leave a comment
Only yesterday we visited the notion of an MRCP 41(b) dismissal in a trial without a jury. The point there was that the motion is one to dismiss, not for a directed verdict.
Today we study the standard that the trial court is to apply in deciding how to rule on the motion.
In In the Matter of the Dissolution of the Marriage of Lewis, decided by the COA on March 20, 2018, Judge Wilson expounded on the topic:
¶13. In a bench trial, after the plaintiff “has completed the presentation of his evidence, the defendant . . . may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.” M.R.C.P. 41(b). A motion for involuntary dismissal under Rule 41(b) is different from a motion for a directed verdict, which is made only in a jury trial. Ladner v. Stone Cty., 938 So. 2d 270, 273 (¶9) (Miss. Ct. App. 2006). “This distinction must be understood, because the standard of review for a dismissal is different than that for a directed verdict.” Id.
¶14. In ruling on a Rule 41(b) motion to dismiss, “[t]he judge must consider the evidence fairly, rather than in the light most favorable to the plaintiff,” as would be the case on a motion for a directed verdict or a motion for summary judgment. Century 21 Deep S. Props. Ltd. v. Corson, 612 So. 2d 359, 369 (Miss. 1992) (emphasis added). That is, the trial judge should give the plaintiff’s evidence only “such weight and credibility as he would ascribe to it if he were making findings of fact and rendering final judgment.” Gray v. Alumax Extrusions Inc., 477 So. 2d 1355, 1356-57 (Miss. 1985). If the judge “would find for the defendant” on the evidence presented, “the case should be dismissed.” Corson, 612 So. 2d at 369. “[T]he motion should be granted if the plaintiff has failed to prove one or more essential elements of his claim or if the quality of the proof offered is insufficient to sustain the plaintiff’s burden of proof.” Buelow v. Glidewell, 757 So. 2d 216, 220 (¶12) (Miss. 2000). “The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff’s evidence were all the evidence offered in the case.” Corson, 612 So. 2d at 369 (emphasis added).
¶15. “This Court applies the substantial evidence/manifest error standards to an appeal of a grant or denial of a motion to dismiss pursuant to [Rule] 41(b).” Id. The trial judge’s “decision on the motion is, for purposes of appeal, treated like any other finding of fact. In other words, his decision will not be disturbed on appeal unless it was manifestly wrong.” Gray, 477 So. 2d at 1357.
Applying the law to the case at hand:
¶16. “The chancellor’s findings of fact about cohabitation [and] de facto marriage . . . are entitled to substantial deference when reviewed on appeal.” Hughes v. Hughes, 186 So. 3d 394, 397 (¶6) (Miss. Ct. App. 2016) (quoting McMinn v. McMinn, 171 So. 3d 511, 518 (¶27) (Miss. Ct. App. 2014)). “We will not reverse a chancellor’s findings regarding the existence or nonexistence of a de facto marriage unless they are manifestly or clearly erroneous.” Id. at 403 (¶26) (citing Burrus v. Burrus, 962 So. 2d 618, 621 (¶15) (Miss. Ct. App. 2006)).
We’ll look at the concept of de facto marriage in a later post. At this point it’s important to bear in mind the standard you need to argue to convince the chancellor to grant — or deny — that 41(b) motion.
The Better Chancery Practice Blog 