Ready for Review?
August 31, 2015 § Leave a comment
If a chancellor orders joint custody to be effective only until the child turns five in 2017, at which time the matter will be reviewed, is that a final, appealable judgment?
That was one of the questions addressed by the COA in the case of Thames v. Thames, decided July 28, 2015. We discussed this case here before in the context of the reasonability of a joint custody arrangement.
I say it was “addressed” because the court dealt with it as if the appeal had raised the R54(b) argument as a jurisdictional issue. The appellant, though, did not argue it that way. Rather, she contended that the chancellor erred by violating the maxim that “equity delights to do justice completely and not by halves” when he failed to determine who would have custody of the parties’ daughter after she started five-year-old kindergarten.
What the chancellor actually said was that the parties could have the option either: (a) to agree to a review hearing in February, 2017; or (b) to certify the judgment as final and appealable per R54(b). Despite that, in the record there is no order or judgment agreeing to a review hearing, and there is no R54 certification.
Undeterred, Debra Thames appealed. The case was reversed on other grounds, but here is how Judge Lee dealt with Debra’s maxim argument:
¶10. While Debra does not argue that the judgment was not final and appealable, the underlying issue is the same, and that is whether any issues remain to be resolved [in the litigation before the chancellor]. Following the reasoning in Crider [v. Crider, 905 So.2d 706, 707-08 (¶¶3-5) (Miss. App. 2004)], we find that the judgment was final, and it disposed of all of the issues until Sofia starts five-year-old kindergarten. While the chancellor in this case did not specify the exact month and year in the final judgment as did the chancellor in Crider, the visitation schedule ends in February 2017 [Fn omitted], and the chancellor stated that the order is to remain in effect until further order of the court and only until Sofia starts five-year-old kindergarten. Furthermore, the chancellor gave the parties the option of agreeing to a future hearing to review custody or making the judgment a Rule 54(b) judgment. Either way, a future hearing was to be held to revisit custody. Formal recognition of the need to revisit custody before Sofia starts five-year-old kindergarten did not prevent the judgment from being final.
From this we can take away that a chancellor in a case such as this may leave open the possibility of a future custody arrangement based on a future event that will be a major turning point in the child’s life, such as beginning school, and the fact that it will need to be revisited will not affect its finality for appeal. Allowing chancellors this kind of flexibility provides more options for the trial judge to employ for the best interest of the child.
I think this is a very narrow holding, and you will be unsuccessful if you try in different set of facts to stretch this holding to justify an appeal from an incomplete judgment.
Equity Delayed is Equity Denied
August 26, 2015 § 2 Comments
If your trial judge in a bench trial takes a case under advisement and fails to render a decision within a reasonable time, MRAP 15 provides the remedy:
(a) When a trial judge in a civil case takes under advisement a motion or request for relief which would be dispositive of any substantive issues and has held such motion or request under advisement for sixty (60) days, the plaintiffs and the defendants shall each within fourteen (14) days thereafter submit a proposed order or judgment to the trial judge and shall forward to the Administrative Office of Courts, the trial court clerk and the opposing parties true copies thereof with a statement setting forth the style and number of the case, the names and addresses of the judge and of all parties and the date on which such motion or request was taken under advisement. On receipt of such proposed orders and notices, the Administrative Office of Courts shall calendar them and notify the trial judge and the trial court clerk of the filing. At any time thereafter that an order or judgment is entered on the motion or request for relief, the plaintiffs and the defendants shall, in writing, promptly notify the Administrative Office of Courts and the opposing parties of the date of entry of the decision; copies of such notification shall be sent to the judge and the trial court clerk. If no written notice of a decision is received by the Administrative Office of Courts within six(6) months from the date the case was taken under advisement, the Administrative Office of Courts shall confirm with the trial court clerk that no order or judgment has been entered and notify the Supreme Court. The Administrative Office of Courts will forward copies of its notification to the trial judge and parties and shall advise the judge and counsel that they are to respond to the notice within a specified period. The Supreme Court shall treat such notification as the filing of an application for a writ of mandamus by all the parties to the action and shall proceed accordingly. The notice of the Administrative Office of Courts of the time within which to respond shall satisfy the requirements of M.R.A.P. 21(d).
(b) The trial judge, not later than thirty (30) days prior to the expiration of the six (6) months from the date the case was taken under advisement, for just cause shown, may apply in writing to the Supreme Court for additional time beyond said six (6) months in which to enter a decision. Concurrently, the judge shall provide a copy of such application to each of the parties.
No one wants to tick off a chancellor who holds the fate of the client in his or her hands, but sometimes you just gotta do what you gotta do.
I mention this with the COA’s decision in Chipley v. Chipley, decided August 11, 2015, in mind. In that case, the Special Chancellor granted a divorce between Wanda and Kenneth Chipley on January 25, 2011, and directed the attorneys to provide, in effect, proposed findings of fact and conclusions of law on Ferguson factors within ten days. Thereafter, the case sat dead in the water for two years, until the MSSC ordered the chancellor to adjudicate the property division, which he did on February 15, 2013. After some post-trial-motion maneuvering that ate up the remainder of the year, Wanda filed an appeal on December 17, 2013, which the COA determined to be timely.
In its August 11, 2015, opinion (that’s four years and nearly eight months after the divorce), the case was reversed and remanded because the Special Chancellor failed to include a Ferguson analysis in his final ruling. It’s axiomatic that the judge’s decision must be supported by findings of fact and conclusions of law on Ferguson. Dickerson v. Dickerson, 34 So.3d 637, 644 (¶24) (Miss. App. 2010). It’s not enough merely to mention the factors. Lee v. Lee, 78 So.3d 326, 329 (¶10) (Miss. 2012). No analysis = reversal and remand. Reed v. Reed, 141 So.3d 450, 455 (¶18) (Miss. App. 2014).
Still to be dealt with are a motion for rehearing and possible cert petition before a mandate is issued, chewing up some more time in the Chipleys’ lives. After all that, they will return to where they started, still without a determination of their property interests. It will take some time to appoint a replacement Special Chancellor, since the original one has died, and the remand hearing will need to be scheduled to accommodate the lawyers, judge, and the parties, which likely will mean more delay and a trial either in the first quarter of 2016, if no further appellate proceedings are had, or much later if the case tarries in the higher courts. I wonder whether those assets that they are fighting over will still even exist after all that time.
The Excusable Neglect Trap
July 30, 2015 § 2 Comments
I think it’s fair to say that it’s unwise for an attorney to place much reliance on the concept of excusable neglect to extract himself or herself from the trouble one encounters due to failure to act.
MRAP 4 provides that notice of an appeal must be filed within thirty days of entry of the order or judgment appealed from. The trial judge, however, may extend that time, even ex parte, for good cause if the motion is filed within the 30-day time limit. MRAP 4(a) also provides that “Notice of any such motion which is filed after expiration of the prescribed time shall be given to other parties, and the motion shall only be granted upon a showing of excusable neglect.” [Emphasis added]
That rule came into play in a recent COA case.
An emotional family land dispute that had taken years to litigate finally resulted in a judgment against David and Jené Nunnery on June 20, 2012. Their attorney at trial withdrew after the trial ended, but before entry of the judgment. A replacement attorney filed a R59 motion on June 29, 2012, but did not set it for hearing. More than a year later, the chancery clerk brought it to the attention of the chancellor that the motion was pending and unresolved, and the chancellor overruled the motion sua sponte by order entered October 1, 2013. On November 9, 2013, the Nunnerys’ attorney filed a motion to extend the time to appeal. His motion spelled out his rationale:
a close family member of the undersigned attorney was involved in a serious car wreck in South Carolina, was in a comma [sic] in intensive care, underwent surgical procedures, and was placed on life support. These unfortunate events extended for a period of four (4) weeks requiring the undersigned attorney’s regular attendance at the Greenville, South Carolina hospital. On November 9, 2013, the family removed life support[,] and on November 16[, 2013,] the funeral was held.
The attorney explained at hearing that the relative was his brother, and he was required to spend many hours at the young man’s bedside and in counselling family members about end-of-life decisions.
In overruling the motion, the chancellor noted that the brother’s accident happened when there were still eight days remaining within which to file an appeal. She found it more significant that the R59 motion had never been prosecuted, and that the failure of the Nunnerys to move forward with their post-trial motion and appeal had already unduly delayed the finality of the judgment, and further delay would only prejudice the prevailing parties.
In Estate of Nunnery: Nunnery v. Nunnery, handed down by the COA July 21, 2015, the COA affirmed, finding that the chancellor did not abuse her discretion in denying the request for the extension. The majority opinion emphasized that the attorney could have filed the notice of appeal in the 22 days that had elapsed before the accident. Judge Maxwell’s specially concurring opinion made the valid point that the attorney may have had good reason for not filing the notice within the 22 days; it may have been that he could not get authorization from his clients, or maybe he had not yet been paid to file the appeal. Judge Maxwell pointed out that an appeal filed on the 30th day is as legitimate as one filed earlier. He would have relied more on the prejudice to the opposing party that, as he put it, trumped the unfortunate circumstances that prompted the motion.
As an aside, what should you do if the deadline is about to expire and you still have no retainer and no clear instructions from your client? One possibility is to ask the court for an extension within the 30-day window, which will likely be easily granted. Another is to file a notice of appeal without your client’s blessing. You will have to front the filing fee, but you will have bought some more time. It’s a strategy that can backfire, though, because your client can argue that you are now in the case to the end, paid or not. I did that once for a client who was having trouble gathering the money to cover court and transcription costs and attorney fees. It turned out okay, though, when the client did retain me shortly thereafter.
The Nunnery case seems like a harsh outcome, but the concept of excusable neglect is not all about the lawyer claiming it. It’s also about the others who will be affected by the court’s ruling. A lawyer asked me to “be fair” to his client in a case recently, and I assured him that I would, but that I also had to be fair to the other side at the same time. Sometimes the result of being fair can cut like a knife.
I call the concept of excusable neglect a “trap,” because it can lull you into a false sense of security that if you don’t tend to your business the court will rescue you. It should go without saying that asking the court to excuse your neglect should only be a last-ditch tactic. Better to watch those deadlines and act promptly.
Demoting General Relief
July 28, 2015 § 5 Comments
One of the chief distinctions between chancery and the law courts is that chancery is often called upon to be a problem-solving venue, as opposed to a place where one goes to obtain a money judgment against another.
And the chancellor’s authority to fix the situation can extend beyond the specific relief spelled out in the pleadings.
Many, many cases can come to mind to illustrate what I am talking about, but here are a couple:
- A case in which there is an acrimonious battle over child custody. In the course of the trial, the proof develops that both of the parties are using the children as pawns and spies, and are downgrading the other parent to the children. The pleadings filed by each party asked only for custody. Is the chancellor precluded from addressing the deleterious conduct in her final judgment? Of course not. Chancellors often add an injunction against conduct like that, whether asked for in pleadings or not. That has been the practice in chancery as long as I have been around, and it should be.
- Another example could arise in a land-line case. That type case is often characterized by property damage and atrocities, threats, and breaches of the peace (as, for instance in this COA case). Faced with evidence of such misconduct, can the chancellor deal with it even in the absence of an express prayer for relief? I think she should.
The principle embodied in those cases is why pleadings in chancery court typically include the ending phrase ” … and (s)he prays for general relief.” General relief flows out of the reservoir of equitable power that a chancellor can draw on to solve the problem, not just award money judgments. That is, after all, what equity was created for in the first place.
In the case of Redmond v. Cooper, 151 Miss. 771, 119 So. 592 (1928), the court had this to say about general relief:
“A prayer for general relief is as broad as the equitable powers of the court. Under it, the court will shape its decree according to the equities of the case, and, broadly speaking, will grant any relief warranted by the allegations of the bill, whether it is the only prayer in the bill, or whether there is a special prayer for particular and different relief; and defects in the special prayer are usually cured by a general prayer. If the facts alleged are broad enough to warrant relief, it matters not how narrow the specific prayer may be, if the bill contains a prayer for general relief. The prayer for general relief serves to aid and supplement the special prayer by expanding the special relief sought, so as to authorize further relief of the same nature. It may also serve as a substitute for the prayer for special relief, and authorize relief of a different nature when that specially prayed is denied.”
No doubt the above was what the chancellor had in mind in the course of legal proceedings between Denise Pratt and Darlene Nelson. Pratt had been making threatening phone calls to Nelson, and had been driving by her home at night. On one day, over the course of a few hours, Pratt sent Nelson 78 text messages, 38 telephone messages, 38 phone calls, and numerous voicemail messages, both via landline and cell phones. Nelson testified that Pratt used profanity and threatened that she and members of her household “would burn alive.” Nelson’s daughter was awakened by one of the calls, became frightened by what she heard, and fell while running to her mother, suffering an injury that required stitches in an emergency room.
Nelson filed a petition for an ex parte emergency domestic relations order in municipal court. Later, she filed a petition for a domestic abuse protection order in chancery court. In both instances, she used the forms provided by the Mississippi Attorney General, pursuant to MCA 93-21-1 through 33.
Trial before the chancellor commenced, but could not be completed within the time allotted. The case had to be continued to another day. The chancellor found the evidence to that point sufficient to support an injunction against Pratt prohibiting her from going within 1,000 feet of any party to or witness in the proceeding until the hearing could be concluded. After the hearing had been reconvened and the proof was concluded, the chancellor ruled from the bench, in part [quoting from Fn 6 of the COA’s opinion cited below]:
“… people are entitled to be left alone. . . . I’m going to keep the restraining order that I set in place at the close of the plaintiff’s case. But I am going to up [the penalty] to $10,000 upon a . . . valid showing of violation of the restraining order that I entered against you, Mrs. Pratt. . . . I think that’s reasonable. . . . I see a pattern of how this has taken place. . . . It’s [been an] ongoing controversy . . . for quite some time.” When Pratt’s counsel asked if the order was granted under the Domestic Abuse Protection Act or under Rule 65, the chancellor responded that he was granting it under the “Chancery Court Rules, . . . a temporary restraining order [under Rule] 65(b), whether it is asked for or not, because that would be general relief.”
Pratt appealed, complaining that the chancellor had erred in issuing an injunction per MRCP 65 when a protective order under the statute should have been issued instead. The COA agreed with her and reversed and rendered in Pratt v. Nelson, decided July 21, 2015.
I can’t disagree with the COA’s conclusion that the chancellor in this particular case went beyond the scope of the domestic-violence statute and the limits of the relief that it allows. What gives me pause, though is that the underlying problem here remains unresolved. The chancellor was there to solve or at least address the problem, which appears from the record to have been serious. He tried to do that via general relief, and, from my reading of the case law, he was within the scope of that authority. The cases on general relief and its parameters are, for the most part, old cases, dating as far back as the 1880’s and into the 1970’s. But that does not indicate that the concept is dead. In Bluewater Logistics, LLC v. Williford, 55 So.3d 148 (Miss. 2011), the MSSC upheld a chancellor’s award of equitable relief against defendants where it had not been expressly pled, but the relief was justified and supported by the evidence.
It seems to me that, ever since the MRCP for the most part did away with entirely different procedures in chancery and the law courts, the appellate courts have been viewing equity in a more limited way, rather than in the expansive view that cases like Redmond employed. It seems that the appellate courts want equity to operate within rigid, prescribed parameters like the law courts, rather than in a more fluid, problem-solving fashion.
When we restrict a chancellor’s power to craft an adequate solution to a human situation in which lives, property, money, and relationships are involved, we can put all of those at risk in the name of proper procedure. Surely no reasonable person wants that kind of result. That’s why we have “general relief” and chancery courts in the first place.
An Occasion When Adjudication is not Res Judicata
July 27, 2015 § Leave a comment
Does the judgment closing a conservatorship (or guardianship, for that matter) bar a subsequent action to set aside transactions that could have been adjudicated within the conservatorship while it was open?
That was the question taken up by the MSSC in the case of Estate of White: White v. White, decided December 11, 2014.
In that case, Charles William White (Bill) and his son, Tommy, were partners in a convenience store operation. In 2000, Bill married Anita White. Tommy bought out Bill in 2005, and paid his father cash for his interest, but the two never exchanged deeds necessary to finalize the buyout.
By 2009, Bill was in need of a conservatorship due to declining health. Anita and Tommy disagreed strongly over the course of Bill’s care; Anita wanted to make him comfortable so he could die with dignity, and Tommy insisted on life-sustaining care. Tommy used a power of attorney (POA) to transfer Bill’s interest in the partnership properties to himself to complete the transfer.
Tommy filed a petition to be appointed conservator of his father. Anita filed a counterclaim asking that she be appointed instead, and she asked the court to set aside any and all transactions by which Tommy transferred interest in his father’s assets to himself using Bill’s POA.
The chancellor found a conservatorship to be in Bill’s best interest, but rather than appointing either Anita or Tommy, he appointed a third party.
When Bill died in 2009, the conservator petitioned to the court to be discharged and to distribute the assets of the conservatorship to Bill’s estate. Both Anita and Tommy agreed to an order to that effect. The order waived accounting, but did not mention Anita’s claim to set aside the POA transactions.
In 2010, Anita filed a complaint to set aside the POA transactions. Both parties filed motions for summary judgment. The court sustained Tommy’s motion, ruling that the order closing the conservatorship barred Anita’s subsequent action, because she had brought the action within the conservatorship, which had been closed.
Anita appealed, and the COA affirmed, finding that the four identities of res judicata were present, and that, therefore, her action was barred.
The MSSC granted cert, and reversed both the COA and the chancellor. Here is how Justice Dickinson addressed the issue for a unanimous court (Justice Lamar not participating):
¶9. We conduct a de novo review of a trial court’s grant of summary judgment. A civil defendant may raise res judicata in a motion for summary judgment where a plaintiff’s suit centers around issues decided in a previous lawsuit. But for res judicata to apply, the defendant must show that the judgment rendered in the previous action was a final judgment on the merits.
¶10. A final judgment on the merits is “[a] judgment based on the evidence rather than on technical or procedural grounds.” While our prior cases have considered whether a judgment constituted a “final judgment on the merits” on a case-by-case-basis, a judgment generally will not be considered a “final judgment on the merits” when the first case was dismissed for a procedural defect or some other technical ground that prevented the court from reaching the merits of the case. If, in the previous case, the court did render a final judgment on the merits, res judicata will apply if both cases share four common identities.
¶11. In granting Tommy’s motion for summary judgment, both the chancellor and Court of Appeals thoroughly analyzed the four common identities necessary for res judicata to apply, but both courts failed to analyze the threshold requirement of a final judgment. Absent a final judgment, the alignment of the four identities is irrelevant.
¶12. The chancellor’s order discharging the conservator did not address any of the contested issues. As our precedent shows, a judgment based on technicalities or procedural issues generally will not be considered a final judgment on the merits. In his order discharging the conservatorship, the chancellor could have rendered a judgment on the contested claims between Tommy and Anita, but he did not.
¶13. The record indicates that the conservatorship was opened in early 2009 and closed when Bill died in June 2009. Far from a final judgment concerning the merits of the contested issues, the final judgment discharging the conservator was based solely on Bill’s death. The chancellor considered no other evidence when entering his order. Although Tommy correctly points out that Anita requested the court set aside the deed transfers in the conservatorship proceeding, the chancellor never addressed the issue.
[NOTE: Authority supporting the above language was set out in footnotes that were omitted in this post because they are too tedious to copy and paste. You can click on the link above to access the full opinion.]
You can take away from this that an order or judgment closing a conservatorship or guardianship does not extinguish the claims that were raised during the time that it was opened.
What would have been the outcome if Anita had not filed her claim to set aside the transactions while the conservatorship was open? My thinking without research is that she would have had a viable claim if she filed within the statute of limitations. What do you think?
What Your Adoption Decree Should and Should Not Include
July 14, 2015 § Leave a comment
DO include …
- An adjudication that the six-month interlocutory, or waiting, period is not necessary or required for the benefit of the court, if that is waived by the judge.
- If a home study is ordered, specify a date to return to court for completion of the adoption.
- If an interlocutory order is entered, spell out its terms. [MCA 93-17-11]
- That the child shall inherit from and through the adopting parent(s) and their children, and they shall inherit from the child, all as if the child had been born to the adopting parties.
- That the child, adopting parents, and kindred are vested with all rights, duties, and obligations as if the child had been born to the adopting parents.
- If the name of the child is to be changed, the name that will appear on the new birth certificate.
- That the natural parents and natural kindred of the child shall not inherit from the child, except as to a parent who is the spouse of the adopting parent. The right of the child to inherit from the natural parents is not required to be terminated.
- That the parental rights of the natural parent(s) are terminated, except as to a natural parent who is the spouse of the adopting parent. [All per MCA 93-17-13]
Do NOT include …
- The name of the natural parent or parents who are giving up the child.
- The original name of the child. [Both per MCA 93-17-27]
- And while we’re at it, never list the name of the child or natural parent(s) in the style of the case; refer only to “the child named in the petition.” Only the names of the petitioners should be in the style of the case. [MCA 93-17-27]
All of the above is summary, shorthand language for the specific statutory mandates. As always, you should track the language of the statutes in your decrees to ensure that you meet their requirements.
Whose Burden of Proof is it, Anyway?
July 7, 2015 § 6 Comments
There must be a gazillion cases that stand for the proposition that the proponent of a position in a case bears the burden of proving every element of the position by competent evidence. It’s not the opponent’s job to do that. And it certainly is not the judge’s, because for the judge to step in and make sure that one party or the other is meeting his or her burden would — or should — subject that judge to sanctions by the Judicial Performance Commission. When the proponent fails to meet the burden of proof, dismissal is appropriate. That’s what R41(b) is for.
The above principle has me scratching my head over a recent COA decision.
Sharon Harris filed a complaint for a TRO and preliminary injunction against the National Oak Park High School Alumni Association, Inc. (NOPHSAA), seeking to prevent the organization from removing her as president because it had not followed its own bylaws. After reviewing legal memoranda submitted by the parties, the chancellor dismissed her complaint, relying on MCA 79-11-277(2), which authorizes a board of directors to remove any officer at any time with or without cause.
Sharon appealed, and asked the MSSC to supplement the record with the national organization’s bylaws and Roberts Rules of Order, which the court granted after the chancellor confirmed that those documents had been before him at the trial level, even though they were not made a part of the record. Nowhere in the record, apparently, were the organization’s Mississippi bylaws.
The COA, in Harris v. National Oak Park High School Alumni Association, Inc., decided June 30, 2015, reversed and remanded, saying this:
¶14. The record on appeal fails to reflect what NOPHSAA’s Mississippi bylaws require regarding a quorum, voting-eligibility requirements, the Board’s meeting procedures, and the validity of telephonic meetings and telephonic voting. Accordingly, we must remand this case for the chancellor to provide findings as to whether the Board followed applicable bylaw requirements for a quorum, meetings, and voting when the Board voted to dismiss Harris in a meeting where some members attended and voted by telephone. [Footnote omitted]
Now, I may be missing something, but if the record fails to reflect what the Mississippi bylaws require, and the case turns on what the Mississippi bylaws require, is the COA saying that the judge is required to make sure that they get into evidence? That’s a novel approach as far as Mississippi jurisprudence is concerned. Indeed, it’s a novel approach as far as American jurisprudence is concerned. Anyone who has ever tried a case, or sat as a trial judge, can tell you that, in the USA, it’s up to the parties, not the judge, to make a prima facie case. That’s what the term “adversarial system” means.
The COA’s decision cites Speights v. Speights, 126 So.3d 76, 82 (Miss. App. 2013), to support the above-quoted language. Speights reversed a chancellor’s award of attorney’s fees because there was no evidence in the record of its reasonability. Using that logic, the COA should have affirmed in this case, because, if the chancellor had granted Sharon her relief, his ruling would have been unsupported by any evidence at all.
The COA noted at ¶ 12 that the chancellor “provided no factual findings for appellate review.” What factual findings are required when the proponent fails to meet his or her burden of proof? The COA’s own decision states repeatedly that the key evidence is absent from the record. So even without the judge’s findings of fact the COA was able to see clearly the failure of the plaintiff to make a prima facie case, as did the astute chancellor.
In my opinion, the chancellor did exactly what a trial judge is supposed to do: dismiss this case for failure to meet the burden of proof. Does the COA think it is the chancellor’s job to investigate and make the record complete? The COA reversed a chancellor for that very thing last year.
Oh, and just for lagniappe, Sharon now has the recipe on remand for a do-over that will get her a W at trial and on the next appeal.
I hope either the COA or the MSSC fixes this lest it become precedent.
Boatwright is Dry-Docked
June 30, 2015 § 10 Comments
The legal travails of Toulman and Grace Boatwright have been chronicled here before.
To bring you up to date, this is the case in which: (1) a chancellor recused before ruling on a R59 motion; (2) the remaining chancellor refused to rule on the motion; (3) there was an appeal; (4) the COA reversed on the basis that the second chancellor should have ruled on the motion; (5) on remand the second chancellor recused, and a special chancellor took up the case and ruled on the R59 motion; (6) Toulman appealed again; (7) five (yes, 5) judges of the COA recused (if you’re counting, that’s seven recusals in this saga); and (8) the COA affirmed in Boatwright v. Boatwright, handed down June 23, 2015.
It seems a shame to draw the curtain closed on this epic, which arose in 2004, more than eleven years ago. (Of course, if cert is granted …)
Judges Carlton, Lee, and Irving would have granted a new trial, which would have kept this case going for perhaps an additional eleven years (optimistically speaking).
In case you’re trying to diagram this: McGehee wrote the prevailing opinion, in which Griffis, and Ishee joined; Carlton, Lee, and Irving dissented. Barnes, Roberts, Maxwell, Fair, and James did not participate. A 3-3 tie is an affirmance.
On the serious side, both the majority opinion, written by Special Judge McGehee, and the dissent, penned by Judge Carlton, address some weighty issues of judicial ethics arising out of the social relationships between attorneys and judges. This particular case came to grief when the chancellor accepted an invitation to go turkey hunting with one of the lawyers involved in the Boatwright litigation while the case was pending. Both opinions discuss the ethical considerations involved and their ramifications.
As with many ethical questions, there are not only murky areas, but different people in good faith can see things differently and draw different conclusions, as was the case here.
What is sometimes difficult to see is where to draw the line. In the Guardianship of McClinton case decided only last February by the COA, the court brushed aside attorney Michael Brown’s argument that the judge had an improper social relationship with another attorney in the case because the judge frequently had lunch with that attorney and they attended college football games together. For those of us here on the ground, it can be hard to draw distinctions so as to arrive at a firm idea of appropriate conduct.
The main thing is for us all to take to heart the serious ethical implications involved in the social interactions between lawyers and judges, and to be sensitive to them. It’s absolutely true that litigants, their families and friends, and passers-by are watching everything we do and drawing their own conclusions.
A Procedural Peculiarity
June 11, 2015 § Leave a comment
We’ve talked here many times about the R54(b) principle that, if the judgment disposes of fewer than all of the issues, it is not a final, appealable judgment unless the judge certifies so in the manner prescribed by the rule. We’ve sounded that theme so often that I’m not going to add links in this post. You can search them for yourself, if you care to.
It’s that principle that has me scratching my head over the COA case Wood, et al. v. Miller, decided June 2, 2015.
Donna Smith and Audrey Kemp filed a complaint in chancery court in 2004 to quiet and confirm title, to determine heirship, and to partition some 261 acres of land that had descended via heirship and devise to the parties named in the suit. They filed an amended complaint in 2007.
Following a hearing in 2009, the chancellor entered a judgment quieting and confirming title and ordering partition. The commissioners some time in 2010 filed a report detailing how the property could be divided into three shares.
In October, 2010, the defendants filed a separate pleading in the same civil action seeking to obtain title of all the property by adverse possession. The pleading was not styled as a counterclaim.
In May, 2012, the chancellor entered a judgment confirming the commissioners’ report, and ordered that the petitioners would have one share, the respondents another share, and another group of heirs the third share.
Afterward the plaintiffs filed a pleading asking for a judgment for waste based on the defendants’ refusal to allow the land to be rented during the litigation. At the hearing on that pleading, the question arose about the pending adverse-possession claim that had never been addressed. The attorney for the defendants announced that he would schedule a hearing on the matter at a later date. He never did. The chancellor entered judgment against the defendants for waste for more than $90,000.
The defendants appealed, raising only two issues: (1) that the chancellor erred when she ruled that two of the petitioners had inherited Thornton Miller’s interest in the property through the will of Thornton’s widow, Magnolia; and (2) that they had adversely possessed the property. They did not otherwise contest the heirship determination, the partition, or the judgment for waste. It does not appear from the opinion that they raised any issue as to the original judgment quieting and confirming title.
In its opinion, the COA, by Judge Roberts, pointed out, quite accurately, that any issue of invalidity of Magnolia’s will had not been raised before the chancellor; nor could it, because MCA 91-7-23 requires such claims be brought within two years of probate of the contested will, and not later. Magnolia’s will had been probated in 1986, so the claim as to the will’s invalidity was untimely and barred by the statute. On those grounds, then, the COA refused to review the issue on appeal.
This was unquestionably the right conclusion as to issue (1).
As for the adverse possession claim, issue (2), the court concluded that, since it had never been presented to the chancellor for review, the issue was not properly before it, and refused to entertain this issue also.
With this issue, I have this question: since the judgment of the trial court disposed of fewer than all of the issues, should the COA have accepted jurisdiction over the appeal in the first place? R54(b) provides:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before entry of the judgment adjudicating all the claims and the rights and liabilities of all the parties.
Since the adverse possession issue is still pending as a claim in this case, was there a final, appealable judgment, or should the COA have rejected jurisdiction? Well, no matter, I think that the COA reached the proper conclusion because:
- You can not adversely possess against co-owners. The determination of heirship resolved the issue of Magnolia’s bequest and ownership, making all of the parties co-owners. Even if the matter had been properly presented at hearing to the chancellor, it did not state a claim upon which relief could be granted.
- Any adverse possession claim should have been presented as a compulsory counterclaim to the claim to quiet and confirm, per R13. The reason for the rule is to prevent the very thing that was attempted in this case.
- The chancery court’s order quieting and confirming disposed of any adverse possession claims.
- This matter was pending in the trial court for nine years. If you haven’t demanded a hearing on your claims you should not have the right to ask or demand that the court deal with it later. You’re already late enough.
In other words, the outcome would not have changed. Just to be clear … I agree with the court’s ruling in this case. I just thought it presented a peculiar set of issues and procedures that would be of some interest.
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