Judgments | The Better Chancery Practice Blog

An End to Game-Playing

July 24, 2017 § 2 Comments

In 2007, Annie and Frederick Griffin got into a dispute with the mortgage carrier, ABN, over modified terms, and stopped paying. They then sued in federal court alleging fraud and violation of other federal laws on debt collection. ABN filed a motion to compel arbitration, but the matter returned to federal court in 2010 after the arbitrator no longer handled consumer cases. The Griffins filed a motion to declare the arbitration agreement unenforceable, and in response ABN withdrew the arbitration request, no doubt to move the case along. The court granted ABN’s motion.

The Griffins then filed an objection to the ruling, even though they had a pending motion to rule the arbitration agreement unenforceable. They filed the motion pro se, because their attorney withdrew, citing the Griffins’ proclivity for not following his advice. Finally, in February, 2012, the district court entered a sua sponte order dismissing the case for failure to prosecute, concluding that “[i]t appears to this court that the plaintiffs view this lawsuit not as something to be actually litigated, but, rather, as something to be kept alive indefinitely, even at the cost of taking a position that is fundamentally inconsistent with the one they have taken for years in this case.”

In January, 2014, the Griffins filed another complaint in chancery court raising the same legal claims and issues as in the federal suit, and based on the same set of facts. There ensued a removal to and remand from federal court, a recusal, and finally a dismissal in chancery on the ground of res judicata. The Griffins appealed pro se.

In the case of Griffin v. ABN, et al., handed down May 16, 2017, the COA affirmed. Judge Greenlee wrote for the court:

¶7. “The appropriateness of application of the doctrine of res judicata is a question of law” and will therefore be reviewed de novo. Swaney v. Swaney, 962 So. 2d 105, 108 (¶11) (Miss. Ct. App. 2007).

¶8. We agree with the chancellor that Griffin II [the chancery matter filed after the federal court dismissal] is properly barred under the doctrine of res judicata. The doctrine of res judicata has four identities: (1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made. Harrison v. Chandler-Sampson Ins., 891 So. 2d 224, 232 (¶24) (Miss. 2005).

¶9. All four identities are met in the case at hand. The factual allegations in the complaint of Griffin II were copied almost verbatim from the complaint of Griffin I, and with the exception of dropping a couple of claims (the FDCPA and TILA claims), the complaint reasserts the same claims of fraud. All parties present in Griffin I were also present in Griffin II.

¶10. In addition to those four identities, to qualify as res judicata the prior judgment must have been a final judgment on the merits. Anderson v. LaVere, 895 So. 2d 828, 833 (¶10) (Miss. 2004). Under both Mississippi and Federal Rule of Civil Procedure 41(b), dismissal for failure to prosecute operates as a final judgment and dismissal is with prejudice. An exception is found in Mississippi Rule of Civil Procedure 41(d), which provides that where dismissal is made by the clerk following twelve months of docket inactivity, that dismissal is without prejudice. See Strickland v. Estate of Broome, 179 So. 3d 1088, 1094 (¶18) (Miss. 2015). But the case at hand does not fall under Rule 41(d), but rather falls under Rule 41(b). Prior to dismissal, the Griffins were put on notice by the district judge that the case would be dismissed for failure to prosecute if the litigation did not move forward in a meaningful way. The Griffins responded by shifting their legal position in order to avoid trying the merits of the case. The district court’s dismissal of the action was not only appropriate for failure to prosecute, but was also consistent with the Griffins’ new argument that the case should not be tried in court at all but rather arbitrated.

The court went on to address and reject some other issues raised by the Griffins.

Some takeaways:

Res judicata is all about identity of issues, facts, and parties. It matters not that the original, dismissed proceeding was in another state or federal court.
Res judicata requires a final judgment on the merits in the dismissed action, and the COA found here that the federal court’s dismissal order was a final judgment on the merits per R41(b), and not a dismissal per R41(d).
Shifting your legal position is a pretty effective way to frustrate your judge. My term for it is game-playing. Courts are for serious business, not for toying with others, delaying, pettifogging, and caviling. That’s the kind of conduct that will get your case thrown out of court. The Griffins’ lawyer was wise to withdraw before he became identified with their tactics and his own credibility with the court took a hit.

Arbitration Clause: Appellate Review of the Award on the Merits

June 20, 2017 § 3 Comments

Yesterday we talked about Paige Electric Company’s unsuccessful challenge on appeal to an arbitration clause. The company had asked the circuit court to vacate the award because Davis & Feder were negligent as a matter of law, and that the arbitrator had disregarded the evidence and exceeded his authority. When the circuit judge denied their motion and dismissed their case, they appealed.

In Paige Electric Company v. Davis & Feder, P.A., decided on April 11, 2017, the COA affirmed. Judge Barnes wrote the opinion:

¶19. Paige Electric argues that the award should be vacated as Davis & Feder were negligent as a matter of law, and therefore, the arbitrator disregarded the evidence and exceeded the scope of his authority. The United States Supreme Court has held that in reviewing whether an issue is arbitrable, “considerable leeway [should be given] to the arbitrator” and his or her decision should be set aside “only in certain narrow circumstances.” First Options of Chicago Inc. v. Kaplan, 514 U.S. 938, 943 (1995). Errors of law or fact, or an erroneous decision of matters submitted to the judgment of the arbitrators, are insufficient to invalidate an award fairly and honestly made. Nothing in the award relative to the merits of the controversy as submitted, however wrongly decided, is ground for setting aside an award in the absence of fraud, misconduct or other valid objections. Wilson, 830 So. 2d at 1156 (¶12) (quoting Hutto v. Jordan, 204 Miss. 30, 36, 36 So. 2d 809, 811 (1948)).

¶20. “[J]udicial review of arbitration award is narrowly limited, and a motion to vacate, modify, or correct an arbitration award is not an opportunity to relitigate issues decided in the arbitration.” City of Hattiesburg v. Precision Constr. LLC, 192 So. 3d 1089, 1096 (¶27) (Miss. Ct. App. 2016). Mississippi Code Annotated section 11-15-23 (Rev. 2004) provides the four grounds upon which an arbitrator’s decision may be vacated:

(a) That such award was procured by corruption, fraud, or undue means;

(b) That there was evident partiality or corruption on the part of the arbitrators, or any one of them;

(c) That the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent or material to the controversy, or other misbehavior by which the rights of the party shall have been prejudiced;

(d) That the arbitrators exceeded their powers, or that they so imperfectly executed them that a mutual, final, and definite award on the subject matter was not made.

“In Mississippi, we have always considered ‘undue means’ to constitute some nefarious conduct on the part of the arbitrator – not simply an incorrect or sloppy conclusion of law.” Robinson v. Henne, 115 So. 3d 797, 802 (¶17) (Miss. 2013) (citing McClendon v. Stewart, 133 Miss. 253, 258, 97 So. 547 (1923)). The Mississippi Supreme Court has held: “[A] mistake of law, a mistake of fact, or a decision lacking an evidentiary basis is insufficient to constitute a violation of any of the four statutory categories that permit the vacatur of an arbitrator’s decision.” Id. at 803 (¶19).

¶21. The circuit judge found that the arbitrator did not exceed his powers in this instance. She further concluded there was “nothing in this record to indicate that Mr. Latham refused or failed to review the case law, nothing to indicate he had any preconceived notions or opinions and certainly nothing to indicate what evidence he focused on or didn’t focus on.” We find no error in the circuit court’s holding. Giving a reasonable presumption “in favor of the validity of arbitration proceedings,” we affirm the circuit court’s judgment.

Between yesterday’s post and today’s, you can deduce the breathtaking sweep of rights that you cede when you agree to an arbitration clause in a contract. Not only do you give up your right to a jury trial, but you also surrender the right to appellate review except on quite narrow, difficult-to-prove grounds.

Arbitration Clause: Challenge after Arbitration

June 19, 2017 § Leave a comment

When Paige Electric Company retained the law firm of Davis & Feder, the retainer agreement included a clause requiring any dispute arising out of the agreement, including claims of legal malpractice, to be submitted to arbitration. Paige did sue the law firm, which invoked the arbitration clause, and the case was heard by Arbitrator Larry Latham, who ruled entirely in the law firm’s favor and denied Paige any relief.

Paige filed motions in Circuit Court to declare the arbitration clause void and to vacate the award. The circuit judge denied the motions, dismissed the suit with prejudice, and Paige appealed.

In Paige Electric Company v. Davis & Feder, P.A., decided April 11, 2017, the COA affirmed. Judge Barnes wrote for a unanimous court:

¶10. “In arbitration cases, . . . the scope of review is extremely limited.” Wilson v. Greyhound Bus Lines Inc., 830 So. 2d 1151, 1155 (¶9) (Miss. 2002). “The scope of judicial review of an arbitration award is quite narrow, and every reasonable presumption will be indulged in favor of the validity of arbitration proceedings.” Id. (quoting Craig v. Barber, 524 So. 2d 974, 977 (Miss. 1988)).

*****

¶11. Addressing Paige Electric’s claim that the arbitration clause in the retainer agreement was unconscionable, and its alternative claim the malpractice claims involving the lien should be severed from the arbitration award and set for trial, the circuit court concluded that the company had waived any objection, as it had voluntarily consented to the arbitration.

¶12. Mississippi has not addressed the precise issue of whether a challenge to the validity of an arbitration clause may be brought post-arbitration. But other jurisdictions have held that participation in arbitration proceedings waives the right to object to an arbitrator’s authority. “A party cannot ‘sit silent, wait until an adverse award is issued, and then first argue that the arbitrator did not have the authority even to hear the claim.’” Advocate Fin. Grp. v. Poulos, 8 N.E.3d 598, 609 (¶53) (Ill. App. Ct. 2014) (quoting First Health Grp. v. Ruddick, 911 N.E.2d 1201, 1213 (Ill. App. Ct. 2009)); see also Ahluwalia v. QFA Royalties LLC, 226 P.3d 1093, 1098 (Colo. App. 2009) (“If a party willingly allows an issue to be submitted to arbitration, it cannot await the outcome and later argue that the arbitrator lacked authority to decide the matter.”). “[W]illing participation is consent to the arbitrator’s power to resolve the dispute.” Unite Here Local 23 v. I.L. Creations of Maryland Inc., 148 F. Supp. 3d 12, 19 (D.D.C. 2015). “Given that arbitration is an optional alternative to judicial resolution of disputes[,] . . . when the parties have agreed to arbitration, the law discourages the loser from seeking a second de novo (or even quasi-de novo) shot at obtaining its desired result[.]” Id. at 18-19.

¶13. Paige Electric argues that because there was a “separate contract prepared for lien claims against the hotel” produced on February 25, 2015, during discovery, “Paige Electric cannot be considered to have consented to arbitration,” and it “cannot be bound to any agreement to arbitrate the dispute over the lien claims[.]” [Fn 3] The circuit court judge declined to make any findings “whether there was a second contract or not,” because the lien claims were submitted for arbitration and had been decided by the arbitrator. But the court did observe that the “second contract . . . was known to Paige Electric in February by [its] own pleadings, and at that time [it] had fully the ability to say. . . these liens aren’t included.” The judge concluded:

[It] didn’t do that. What [it] did do, however, was go through the entire arbitration process, two and a half days of arbitration hearings, and then submit a post-hearing memorandum . . . [that] very clearly indicates the lien claims were considered and are part of the arbitration.
. . . .
And, therefore, the court finds [Paige Electric] waived any objection [it] may have had with regard to the arbitration of the lien claims. Whether the court agrees they would have been included or not, the parties agreed to include them, the arbitrator was presented those.

[Fn 3] The second “contract” was merely handwritten notes made by Brisolara on a legal pad, dated March 16, 2007, three days prior to the parties’ signing the retainer agreement. The note has Jerry Paige’s name at the top, and simply states “Hourly pay for lien. [One third]
for suit” and that Jerry Paige “wants to sign contract against [SCS and] Studio Inn and file suit.” There is no evidence that Paige Electric signed a second contract for the lien work at an hourly rate; nor is there evidence Davis & Feder billed Paige Electric for this work.

¶14. At no point prior to or during the arbitration hearing did Paige Electric object to arbitrating the lien claims. Paige Electric was represented by counsel throughout this process, and the parties agreed to arbitration; it was not court-ordered. In a letter to Davis & Feder, dated June 12, 2013, counsel for Paige Electric stated that “[t]here is no objection to this [arbitration] procedure,” and he requested that “appropriate steps be taken at this time to arrange for arbitration of this claim[.]” Thus, we find no error in the circuit court’s determination that Paige Electric waived its right to object to the validity of the arbitration clause and to the arbitration of the lien claims.

¶15. Notwithstanding the waiver of the claims, we find no merit to Paige Electric’s claim that the arbitration clause was procedurally unconscionable because the arbitration clause was not properly explained to Jerry Paige, and because the clause is “inconspicuous” and used “overly broad verbiage.” Whether an arbitration clause is procedurally unconscionable can be shown by: “(1) lack of knowledge; (2) lack of voluntariness; (3) inconspicuous print; (4) the use of complex, legalistic language; (5) disparity in sophistication or bargaining power of the parties; and/or (6) lack of opportunity to study the contract and inquire about the terms.” See Caplin Enters. Inc. v. Arrington, 145 So. 3d 608, 614 (¶12) (Miss. 2014) (citing MS Credit Ctr. Inc. v. Horton, 926 So. 2d 167, 177 (¶29) (Miss. 2006)).

¶16. The retainer agreement was a simply-worded five-page agreement, and the arbitration clause took up an entire page of the contract, in an easy-to-read font. Compare E. Ford Inc. v. Taylor, 826 So. 2d 709, 716-17 (¶21) (Miss. 2002) (finding an arbitration provision “procedurally unconscionable,” as the “preprinted” arbitration clause “appears less than one third the size of many other terms in the document, [and] appears in very fine print and regular type font”). Moreover, in the June 12, 2013 letter from Paige Electric’s counsel to Davis & Feder, the attorney stated that “[Jerry] Paige advises me that his contract with Davis [&] Feder requires all disputes with clients be arbitrated,” indicating an understanding by Jerry Paige of the agreement’s terms and conditions.

¶17. We also reject, on the merits, Paige Electric’s alternative claim that the arbitration clause only applied to the representation for the claim against SCS for payment, not the claims related to the “prosecution of any liens or related claims against Hancock Hotels,” and that “the malpractice claims related to the hotel owner should be severed and set for trial before a jury.” Paige Electric cites Complaint of Hornbeck Offshore (1984) Corp., 981 F. 2d 752, 754-55 (5th Cir. 1993), to support its claim. However, the retainer agreement states that the provision regarding the arbitration of disputes “shall apply to any dispute between the parties which arises from, or is related to, a claimed breach of this agreement[.]” (Emphasis added). In Hornbeck, the United States Court of Appeals for the Fifth Circuit specifically held that “arbitration clauses containing the ‘any dispute’ language . . . are of the broad type.” Id. at 755. “[I]t is difficult to imagine broader general language than that
contained in the arbitration clause, ‘any dispute.’” Id. (citation omitted). The Mississippi Supreme Court has also held:

Broad arbitration language governs disputes “related to” or “connected with” a contract, and narrow arbitration language requires arbitration of disputes that directly “arise out of” a contract. . . . Because broad arbitration language is capable of expansive reach, courts have held that “it is only necessary that the dispute touch matters covered by the contract to be arbitrable.” Horton, 926 So. 2d at 176 (¶¶24-25) (quoting Pennzoil Exploration & Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061, 1067-68 (5th Cir.1998)). We find the lien claim against the hotel owner was directly “related to” Paige Electric’s claims against SCS; the lien against the hotel owner was necessary only in the event that Paige Electric could not collect a judgment from SCS.

¶18. Accordingly, we find the circuit court did not err in denying Paige Electric’s motion to declare the arbitration clause invalid, or alternatively, to sever Paige Electric’s lien claims from the arbitration award and set those claims for trial.

A few observations:

Unless you can build a convincing case based on those factors in ¶15 up there, you will find it mighty hard to get around an arbitration provision in a freely-negotiated contract.
If you’re planning to include an arbitration clause in your retainer agreements, be sure it’s as broad as possible.
When you wait until after the arbitration is concluded to raise the issue of the validity of the arbitration clause, you’ve waited too late.

We’ll talk in another post about Paige’s claim that the arbitration clause should have been vacated by the circuit court.

Priority of the Attorney’s Charging Lien

May 31, 2017 § 5 Comments

It is an ancient principle of the common law, and has long been recognized in Mississippi law, that attorneys have a lien on judgments and decrees obtained through the attorney’s successful representation. Where that lien falls in order of priority was the issue in a recent case.

Bar-Til, Inc. won a judgment for more than $205,000 against Superior Asphalt in chancery court. Instead of appealing, Superior interpled the money into the registry of the court while Bar-Til appealed the trial court’s denial of punitive damages. The chancellor granted the interpleader and entered a judgment declaring the judgment satisfied in full.

After the COA affirmed the denial of punitive damages, a scramble ensued among several creditors of Bar-Til, all of whom claimed a right to some of the funds. Some were judgment creditors. One was the McRae law Firm, which had successfully represented Bar-Til.

The interpled funds were insufficient to satisfy all of the claimants in full, so the chancellor apportioned the funds among them, including McRae, in a way that he deemed equitable.

Bar-Til appealed, arguing that McRae’s fees had priority, and that the chancellor erred by not recognizing the priority, and by not recognizing priorities or not of the other liens.

In Bar-Til, Inc. v. Superior Asphalt, et al., handed down May 9, 2017, the COA reversed and remanded. On the issue of priority of liens, Judge Greenlee wrote for the court:

¶10. Mississippi has long recognized an attorney’s right to have a lien on judgments and decrees procured through an attorney’s efforts on behalf of his client. An attorney has a “paramount lien on the money decree which he [has] obtained.” Collins v. Schneider, 187 Miss. 1, 192 So. 20, 23 (1939). “[A]n attorney’s lien on judgments and decrees obtained by [him] for fees on account of services rendered, belongs to the family of implied common law liens, and is firmly engrafted on the common law.” Id. A charging lien attaches when the attorney does “successfully pursue the [lawsuit] to conclusion and obtain a final judgment from which there [is] no appeal.” Tyson v. Moore, 613 So. 2d 817, 826 (Miss. 1992). At that point, “[the attorney’s] entitlement to a fee is vested.” In Collins, the Mississippi Supreme Court held that the attorney had a priority lien on funds held in the lower court’s register where “[t]he evidence conclusively show[ed] that nothing would have been recovered on the original cause of action . . . had it not been for [the attorney’s] labor, zeal[,] and skill in the investigation and vigorous prosecution of that suit to a successful conclusion.” Collins, 192 So. at 22.

¶11. In Indianola Tractor Co. v. Tankesley, 337 So. 2d 705, 706 (Miss. 1976), the Mississippi Supreme Court affirmed a trial court’s acknowledgment of a plaintiff’s attorney’s lien on the proceeds of a successful garnishment action. In ordering disbursement of the judgment, the law firm was listed first in priority. Id. The court cited to Chattanooga Sewer Pipe Works v. Dumler, 153 Miss. 276, 120 So. 2d 450, 453 (1929), in which the Supreme Court reiterated that “[i]t has been uniformly held by this [C]ourt that an attorney has a lien on the funds of his client for the services rendered in the proceeding by which the money was collected.”

¶12. Our appellate courts have noted since 1939 the absence in Mississippi of a “statute fixing or regulating the lien of an attorney, or the enforcement thereof.” Collins, 192 So. at 22. Consistent with common-law principles, multiple states statutorily mandate the priority of attorney’s fees, including Oregon, New York, California, Arkansas, Massachusetts, Alabama, and Georgia. For example, Alabama’s statute provides:

Upon actions and judgments for money, [attorneys] shall have a lien superior to all liens but tax liens, and no person shall be at liberty to satisfy the action or judgment, until the lien or claim of the attorney for his or her fees is fully satisfied; and attorneys-at-law shall have the same right and power over action or judgment to enforce their liens as their clients had or may have for the amount due thereon to them.

Ala. Code § 34-3-61(b). These statutes codify the equitable principle long recognized at common law that attorneys deserve payment for their successful services. The United States Court of Appeals for the Fifth Circuit, applying Mississippi law, held in American Fidelity that one of the rationales for not granting a law firm priority to retainage funds was that the law firm’s services had not been the cause of the release of the funds, therefore resulting in no injustice in not giving the law firm priority. We have the opposite situation at hand. Here, the services of the law firm—including seven years’ representation and over $16,000 in expenses—directly resulted in the judgment against Superior Asphalt.

¶13. Garnishees have the statutory right to compel interpleader. Miss. Code Ann. § 11-35-41 (Rev. 2004). This right protects the garnishee from double liability on the same judgment. The charging lien, protecting the attorney’s right to the fruits of his labor, and the right to interplead, protecting the garnishee from double liability, should not intersect with each other in such a way that frustrates one or the other right. If we were to adopt the approach that the contingency is not triggered in this circumstance, then practically—or rather, impractically—a plaintiff’s attorney working for a contingency fee would need to research standing garnishment claims in all eighty-two Mississippi counties prior to determining whether to accept a case. Any case that may result in an interpleader may be too risky to pursue. As the Mississippi Supreme Court explained in 1939, “it would be most inequitable and unjust for [the other claimants to the judgment] to be allowed to ‘ride free’ on the facts of this case.” Collins, 192 So. at 23.

¶14. We also note that the third-party creditors can continue to pursue collection of any remaining funds owed them pursuant to their respective judgments against Bar-Til. But as to the law firm, if the charging lien has not attached and does not have priority, the law firm will only receive for its successful services what—if anything—is left after all of the garnishors have taken the first bite at the interpled funds.

¶15. Here, the monies would not be available for distribution to the garnishors had not Bar-Til’s right to the judgment first vested. Superior Asphalt surrendered the money in satisfaction of the judgment against it, with no further right of appeal. We find that Superior Asphalt’s deposit of the funds into the registry of the court, consistent with its right to protect itself from double liability, did not prevent the law firm’s charging lien from attaching to the interpled funds. The law firm is first in priority.

¶16. As to priority between H&E Equipment and MMC Materials, MMC Materials properly concedes that H&E Equipment has priority. Even though MMC Materials’ judgment against Bar-Til was obtained first in 2008, priority here is governed by our garnishment statutes. Mississippi Code Annotated section 11-35-24(1) (Rev. 2004) provides in part that “[w]here more than one garnishment has been issued against an employee of a garnishee, such garnishee shall comply with the garnishment with which he was first served.” H&E Equipment was first to serve Superior Asphalt with a writ of garnishment related to any funds owed by Superior Asphalt to Bar-Til.

To make a longish story shortish: (a) the lien of an attorney who has been successful in obtaining the judgment that resulted in the interpled funds has first priority among creditors; and (b) garnishors stand in order of filing after the first priority.

The Immune System

May 2, 2017 § Leave a comment

It’s not often that a judge is sued for some action he or she took in the course of performing official duties. But it does happen, and the most recent case was decided by the MSSC in Weill v. Bailey, on April 6, 2017. In that case, a circuit judge, Weill, was sued by a former employee, Bailey, over language the judge had included about her in a judgment, which language she claimed to be libelous. The special judge assigned to the case refused to grant Weill’s motion to dismiss, and he appealed. The MSSC reversed and remanded for a dismissal judgment.

Since Justice Coleman’s opinion sets out an exposition of the law on the point, I am posting it here because you might find it useful:

¶18. Mississippi has long recognized the doctrine of judicial immunity. Wheeler v. Stewart, 798 So. 2d 386, 392 (¶ 14) (Miss. 2001). The Court has declared that “public policy mandates that a judge should have the power to make decisions without having to worry about being held liable for his actions.” Id. (quoting Loyacono v. Ellis, 571 So. 2d 237, 238 (Miss. 1990)). Indeed, the Court “fully recognizes that the best interests of the people and public order require that judges be immune from civil liability.” Loyacono, 571 So. 2d at 238.

¶19. The Loyacono Court recognized that the United States Supreme Court addressed the doctrine of judicial immunity in Stump v. Sparkman, 435 U.S. 349 (1978). The Stump Court held that “judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.” Stump, 435 U.S. at 355-56 (quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871)).

¶20. In Loyacono, an attorney filed suit against a circuit court judge contending that, as a direct and proximate result of the willful, intentional, or negligent acts of the circuit court judge, he was falsely prosecuted, arrested, incarcerated, and denied due process. Loyacono, 571 So. 2d at 237. The trial court granted the circuit court judge’s motion to dismiss, finding that the doctrine of judicial immunity protected the circuit court judge even if he was motivated by malice. Id. The Court affirmed. Id. at 239.

¶21. The Loyacono Court acknowledged that, while the holding in DeWitt v. Thompson, 7 So. 2d 529, 532 (Miss. 1942) [Fn 3], seemed to leave open the door as to whether judicial immunity applies in the face of malice, “[p]ublic policy mandates that a judge should have the power to make decisions without having to worry about being held liable for his actions, and, thankfully, most judges do not exhibit the type of behavior we find in this instance.” Loyacono, 571 So. 2d at 238. Accordingly, the “Court fully recognizes that the best interests of the people and public order require that judges be immune from civil liability. There are other remedies [Fn 4] for the correction of such behavior.” Id.

[Fn 3]:
In DeWitt v. Thompson, 7 So. 2d 529, 532 (Miss. 1942), the Court stated:

In [Bradley] the [United States Supreme] Court went farther, and held that courts of general jurisdiction are not liable to civil actions for their judicial acts, when such acts are in excess of their jurisdiction, and are charged to have been done maliciously or corruptly. We do not go that far in this case, because, as stated, there was no showing of either corruption or excess of jurisdiction.

[Fn 4]:
“The primary remedy available to those who believe a judge has acted either contrary to or in excess of his/her authority is to file a complaint with the [Mississippi Judicial Performance] Commission.” Mississippi Comm’n of Judicial Performance v. Russell, 691 So. 2d 929, 947 (Miss. 1997).

¶22. The Loyacono Court stated: “There is a distinction between excess of jurisdiction and a complete absence of jurisdiction.” Id. “Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible.” Bradley, 80 U.S. at 351-52. Thus, “[t]he key factor in determining whether judicial immunity exists is whether at the time the judge took the challenged action he had jurisdiction over the subject matter before him.” Wheeler, 798 So. 2d at 392 (¶ 15).

¶23. Bailey argues that Judge Weill is not afforded judicial immunity because his actions were taken in a complete absence of jurisdiction. Bailey contends that Judge Weill had no jurisdictional authority over her individually when he entered the February 2015 orders. However, the question is not whether Judge Weill had jurisdiction over Bailey, individually; the inquiry is “whether at the time the judge took the challenged action he had jurisdiction over the subject matter before him.” See id. (emphasis added).

¶24. The challenged act is the entry of the February 2015 orders disposing of Kelly’s motions to recuse and for clarification in multiple criminal cases. Judicial immunity exists in the present case because at the time Judge Weill entered the February 2015 orders, he had jurisdiction over the multiple criminal matters before him.

¶25. Bailey’s complaint and amended complaint did not allege that Judge Weill lacked jurisdiction over the criminal matters in which he entered the February 2015 orders. Thus, there is no dispute that, at the time Judge Weill entered the February 2015 orders in his capacity as circuit court judge, he had jurisdiction over the criminal matters before him. Instead, Bailey argues that Judge Weill’s statement that she had been reprimanded forimproper ex parte communications in the February 2015 orders was neither necessary or relevant to the issue before Judge Weill. However, the Court has not recognized a relevance exception to the judicial immunity doctrine. “In order to determine the existence of judicial
immunity one must look to whether at the time the judge took the challenged action he had jurisdiction over the subject matter before him.” Loyacono, 571 So. 2d at 238 (citing Stump, 435 U.S. at 356). It is of no consequence that the February 2015 orders disposing of a motion in criminal matters properly before him included a factual finding that mentioned Bailey.

¶26. Bailey also argues that Judge Weill lost his judicial immunity because his alleged defamation of her constituted a nonjudicial act made in the clear absence of all jurisdiction. However, the Loyacono Court rejected the argument that allegations of malice remove the protection of judicial immunity.

¶27. We hold that the trial court erred by failing to grant Judge Weill’s motion to dismiss Bailey’s complaint and amended complaint based on judicial immunity.

CONCLUSION
¶28. The Court has held that judges of courts of general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. Loyacono, 571 So. 2d at 238. Here, Judge Weill entered the February 2015 orders disposing of the public defender’s motions to recuse and for clarification in four criminal matters that were properly before him. Even though Bailey alleged that the language contained in the orders contained libelous language, Judge Weill is afforded judicial immunity from Bailey’s civil action because at the time he entered the February 2015 orders, he had jurisdiction over the subject matter before him. See id; Wheeler, 798 So. 2d at 392 (¶ 14). As a result, the Court reverses the trial court’s order and remands the case for further proceedings consistent with the Court’s opinion.

Justice King, joined by Justice Kitchens, specially concurred, agreeing with the result in this particular case but cautioning that in another fact situation the role of malice in the judge’s use of language needs to be addressed.

A Caveat About Joint Custody Arrangements

May 1, 2017 § Leave a comment

When Suresa and Derrium Todd got an irreconcilable-differences divorce, they agreed that they would share joint legal and physical custody. Only thing is, their agreement did not spell out a schedule for how that custody would be shared. Notwithstanding that omission, the chancellor who granted the divorce found the agreement “adequate and sufficient,” and granted the divorce.

Two years after the divorce they were back in court over Derrium’s allegations that Suresa was not properly caring for the child. His proof at trial, however, was that the child was happy and well-cared for. There was no proof of a material change and adverse effect; however, the proof was that the custody arrangement was unworkable absent a specific schedule. So the chancellor conducted an Albright analysis and awarded Derrium sole custody. Suresa appealed.

Now, you can probably guess that the COA reversed. They did, in Todd v. Todd, handed down April 18, 2017. Judge Irving’s opinion reiterated the familiar rule that there can be no modification absent a showing of material change and adverse effect.

What I found interesting was what the COA expects chancellors to do when confronted by a joint custody arrangement that has proven to be unworkable due to the lack of a schedule, or due to a change in the parties’ schedules, or maybe due to the fact that the child was an infant when the agreement was entered into but is now school age. Do we still require a material change coupled with an adverse effect, or do we apply a lesser standard such as we do in visitation cases? Whatever the standard, it is clear in these cases that something has to be done for the best interest of the child.

Judge Irving spoke to the issue:

¶11. One final matter bears discussion. If, on remand, the chancellor finds no merit to Derrium’s complaint or Suresa’s counterclaim [for modification of custody], Derrium and Suresa will still have joint physical custody of their child. It will be necessary to determine a custody schedule, as it was probably error to find that the parties’ agreement was “adequate and sufficient” without one. See Selman v. Selman, 722 So. 2d 547, 554 (¶33) (Miss. 1998) (holding that plain error resulted where a chancellor’s child-support award was ambiguous, and it was necessary to remand the issue for clarification “to prevent friction between the parties”). Derrium and Suresa could resolve the issue through an agreement that the chancellor finds “adequate and sufficient” before incorporating it into an amended divorce judgment. See Miss. Code Ann. § 93-5-2(2) (Rev. 2013). Alternatively, they could allow the chancellor to resolve the issue for them. See Miss. Code Ann. § 93-5-2(3) (Rev. 2013). Under either circumstance, a joint physical-custody schedule should provide each parent with “significant periods of physical custody . . . in such a way so as to assure [their] child of frequent and continuing contact with both parents.” See Miss. Code Ann. § 93-5-24(5)(c) (Rev. 2013). But that does not necessarily mean that each parent would have to get equal time with their daughter. See Collins v. Collins, 20 So. 3d 683, 692 (¶44) (Miss. Ct. App. 2008).

So, yes, the chancellor, short of modification of custody, may proceed to clarify the original custody arrangement so as to eliminate friction between the parties.

But note Judge Irving’s caution that “it was probably error to find that the parties’ agreement was ‘adequate and sufficient’” without a custody schedule. To that, I say Amen. But in saying that I am not being critical of the chancellor who granted the divorce. I have been in those shoes many times, with lawyers imploring me that “these are good people, judge; they will work it out.” Or, “Judge, we had a hard time reaching a final agreement, and there was a lot of give and take; we had to leave this the way it is or we would not have an agreement at all.”

Hindsight is always cataract-free and eagle-eyed. It always sees in sharp focus what a thoughtful person either (a) should have seen at the time, or (b) deluded himself or herself into thinking all would turn out peachy keen despite the flaws in the agreement.

When you bid your client farewell after the judgment is entered, that client believes that you covered all the bases and protected him or her from further litigation. If you kick the can down the road, it does not mean that the can has disappeared. It’s still there for someone to trip over later and get cut on the rough edges.

Another One for the Graveyard

April 17, 2017 § Leave a comment

As I have said here before, R54(b) is the graveyard of appeals. Here is one of many posts about it.

The latest iteration is the COA’s decision in Jeffers v. Saget, decided March 21, 2017. In that case, a jury trial in a will contest ended in a mistrial. The chancellor nonetheless entered a “Final Judgment” denying Jeffers’ petition to recover some investment accounts, and Jeffers appealed.

Predictably, the COA pointed out that the chancellor’s ruling disposed of fewer than all of the issues in the case, since the validity of the will had still not been adjudicated. The chancellor had not certified the case per R54(b), and no petition for an interlocutory appeal was filed. Appeal Dismissed.

I get it that it’s better to appeal early and get dismissed than to be told you’re dismissed because you’re late. Yet, the boneyard is filling up.

Bench Ruling or Opinion vs. Judgment: Which Controls?

March 21, 2017 § 3 Comments

Many moons ago, in another district, a chancellor ruled from the bench at the conclusion of a contested case in which I represented one of the parties. He directed the attorney on the other side to prepare a judgment for his signature, which she did. She presented it directly to him without any input from me, which is contrary to our long-standing practice in my home district.

When I received a copy of the judgment, I was shocked to see several provisions in it, favorable to the other party, that were never mentioned by the judge in his ruling from the bench. I immediately fired off a R59 motion asking the court to retract those offending parts of the judgment.

At our next encounter, the judge read my motion, removed his reading glasses, looked me in the eye, and said, “Son, are you saying that I didn’t bother to read my own judgment?” I stammered out a denial as graciously as I could. “It’s my judgment, no matter who prepared it, and it said exactly what I thought it should say.” That concluded my business for the day, and I exited, pondering what had just transpired on my 40-mile drive back to my office.

Chancellors such as I, who either rule from the bench or issue written opinions, and direct a lawyer to prepare a judgment, often hear similar complaints. The bottom line, though, is that there is no requirement for the final judgment or order to mirror exactly what the judge ruled.

The COA confronted a similar argument in the case of Guardianship of McPhail: McPhail and Portera v. McPhail, handed down February 28, 2017. Judge Barnes wrote for a unanimous court (Judge Greenlee not participating):

¶11. “The Mississippi Supreme Court has held that ‘a chancellor’s bench ruling is not final, but is subject to modification by that same chancellor.'” Hinson v. Hinson, 877 So.2d 547, 548 (¶5) (Miss. Ct. App. 2004) (quoting Grey v. Grey, 638 So.2d 488, 492 (Miss. 1994)).

The Grey case is directly on point. Hinson cites Grey, but was actually a case in which the COA rejected the appeal because only a bench ruling had been entered, with no corresponding judgment, and, since a bench ruling is subject to revision by the judge and is not final, there was no final, appealable judgment.

All of this is to say that, so long as the judgment or order conforms to and is within the pleadings and the proof, it matters not whether a particular provision of the judgment or order was explicitly addressed in the bench ruling or opinion.

When Less is Not Better

January 24, 2017 § 1 Comment

You know those annoying R81 linking continuance orders? The ones that you have to have entered on the return day and every successive continuance day to preserve your process? (R81(d)(5)).

This is what many of them look like to me:

The hearing on this matter is continued to the 8th day of February, 2017, at 9:00, a.m.

I think it should say in addition that the defendant (respondent) was called three times at the designated time, and he did not appear. Why? Because he could come up later and claim he was there all along and no one called out to let him know his case was up to be heard. The only record of what happened is the court’s order (unless you are in one of those rare districts where the docket call is on the record).

What about determination of heirship judgments? If you need to continue, and you simply recite that the matter is continued, a person claiming heirship can later pop up and claim that he or she was there and no one called him into the courtroom. Oops. No record to contradict it.

Often in chancery the only record you will have of what transpired is the order or judgment you present to the court. You should want it to be airtight, so you should include all the fact-finding and procedural recitations that the proceedings support. For instance:

In an uncontested divorce with a custody claim. Put on proof of Albright factors and address them in your judgment.
In an uncontested divorce with some property and alimony claims, put on proof of Ferguson and Armstrong factors, and add findings to your judgment.
The proof you present of those factors does not have to be elaborate. It just needs to be enough to justify the court’s signing off on the judgment you present.
In a case where the defendant appeared on a previous date or two and agreed to continuance(s), recite that history in your order or judgment.
If you published process, recite when, where, and how often published, and that no responsive pleading or other response was made.

The more detail you add, the more successful you will be later when the other party wakes up, realizes he has missed the train, and gets a lawyer to try to rescue him by filing a R59 or 60 motion. Just remember that whatever you recite in your order or judgment has to reflect what really transpired. You won’t get a chancellor to sign off on Albright findings when you never asked your witness the first question about them.

Appealing from a Special Master’s Ruling

January 23, 2017 § Leave a comment

The COA’s decision in In the Matter of J.W., decided January 3, 2017, is not likely to go down as a leading case in Mississippi jurisprudence, but for chancery practitioners in particular, it’s one you need to bear in mind.

To make a short story even shorter (the opinion is only three pages long), J.W. appealed from a finding made by a special master that he should be involuntarily committed to the custody of the Mississippi Department of Mental Health. The special master followed his findings with an “Order of Admittance after Hearing.” J.W. filed a R59 motion, but the COA does not tell us what the outcome of that was.

No matter. The COA dismissed the appeal for lack of jurisdiction because no chancellor ever adopted the special master’s findings in a court order. As the COA’s opinion by Judge Fair concludes:

¶5. “The court may appoint one or more persons in each county to be masters of the court, and the court in which any action is pending may appoint a special master therein.” M.R.C.P. 53. “[A] master’s report has no effect until it is either accepted or rejected by the chancellor.” Davison v. Miss. Dep’t of Human Servs., 938 So. 2d 912, 915 (¶5) (Miss. Ct. App. 2006) (citing Evans v. Davis, 401 So. 2d 1096, 1099 (Miss. 1981)). Here, there is no order by the chancellor accepting the special master’s report, and there has been no ruling on J.W.’s motion to reconsider. Because there is no final, appealable judgment, we lack jurisdiction and must dismiss. See Newson [v. Newson], 138 So. 3d [275], at 278 (¶11) [(Miss. Ct. App. 2014)].

The big deal here is that many districts around the state employ special masters routinely to handle child support and contempt cases per MCA 9-5-255. It’s an effective tool to free up courtroom time for more complex litigation, and to reduce waiting time for all kinds of hearings. When you get your findings and even a so-called “order” from your special master, however, it’s my opinion that you do not have either an enforceable judgment or a final, appealable judgment unless and until the chancellor has accepted the master’s report. That’s because of the language of MCA 9-5-255(8), which essentially tracks R53.

Another thing you need to keep in mind is that R53(g)(2) specifically directs that:

“The court shall accept the master’s findings of fact unless manifestly wrong. Within ten days after being served with notice of the filing of the report any party may serve written objections thereto on the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as provided by Rule 6(d). The court after hearing may adopt the report or modify it or may adopt the report in whole or in part or may receive further evidence or may recommit it with instructions.”

In Sims, et al. v. Mathis, handed down May 24, 2016, the COA held that it is the duty of the objecting party under R53 not only to file timely, specific objections, but also to set them for hearing and bring them before the court. In those special-master child-support cases, then, any objection needs to be filed within ten days of notice of the master’s findings, and the lawyer or party filing the objections needs to set the objections for hearing and bring the matter on for hearing. If that is not done, the court “shall accept the master’s findings of fact unless manifestly wrong.”

All of the foregoing applies not only to mental commitments and child-support proceedings, but also in every case in which a special master is appointed by the court. Mathis was a partition suit. Special masters are appointed in a wide range of chancery matters.

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