Pleading | The Better Chancery Practice Blog

Pleading the Spousal Domestic Abuse HCIT Ground

March 24, 2020 § Leave a comment

Ever since the legislature amended MCA 93-5-1 in 2017 to add “spousal domestic abuse” as a form of HCIT there has been a lingering question whether one is required to plead the enhanced ground, or whether it is sufficient simply to plead HCIT and nothing more. A recent MSSC decision comes close to answering the question.

Karrah Wangler filed her Complaint for Divorce against her husband Richard on January 3, 2018. On October 16, 2018, the day before trial, she moved the court to amend her complaint to track the 2017 amendment verbatim. The chancellor denied her motion. On appeal, she charged that the chancellor erred in denying her motion.

In Wangler v. Wangler, handed down March 12, 2020, the court affirmed. Justice Griffis wrote the 7-2 majority opinion:

¶6. “[M]otions for leave to amend are left to the sound discretion of the trial court. This Court reviews such determinations under an abuse of discretion standard and unless convinced that the trial judge abused his discretion, we are without authority to reverse.” Church v. Massey, 697 So. 2d 407, 413 (Miss. 1997) (internal quotation marks omitted) (quoting McCarty v. Kellum, 667 So. 2d 1277, 1283 (Miss. 1995)).

¶7.

[Mississippi] Rule [of Civil Procedure] 15(a) declares that leave to amend “shall be freely given when justice so requires”; this mandate is to be heeded . . . if the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason—such
as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.—the leave sought should, as the rules require, be “freely given.”

Webb v. Braswell, 930 So. 2d 387, 393 (Miss. 2006) (quoting Moeller v. Am. Guar. and Liab. Ins. Co., 812 So. 2d 953, 962 (Miss. 2002)).

¶8. Karrah argues that the chancellor should have granted her motion to amend the complaint because under Rule 15(a), “leave shall be freely given when justice so requires.” Miss. R. Civ. P. 15(a). This Court disagrees and finds that the amendment was futile. Alternatively, any error by the chancellor was harmless.

¶9. Mississippi Code Section 93-5-1 (Rev. 2018) provides twelve causes for divorce. Among those causes is habitual cruel and inhuman treatment. Miss. Code Ann. § 93-5-1. Effective July 1, 2017, the Legislature amended Section 93-5-1 to include “spousal domestic abuse” as a form of habitual cruel and inhuman treatment. S.B. 2680, Reg. Sess., 2017 Miss. Laws ch. 427, § 6 (codified as amended at Miss. Code Ann. § 93-5-1 (Rev. 2018)).

¶10. Karrah filed her complaint for divorce on January 3, 2018, and alleged that Richard was “guilty of habitual cruel and inhuman treatment.” More than nine months later, on October 16, 2018, Karrah moved to amend her complaint to allege spousal domestic abuse, specifically,

that Richard . . . ha[d] engaged in a pattern of behavior against [her] of threats of intimidation, emotional or verbal abuse, forced isolation, and false accusations of marital infidelity, coupled with episodes of abandoning [her] at all times of the day or the night on the sides of public highways and in public places which pattern of behavior rises above the level of unkindness or rudeness or incompatibility or want of affection.

According to Karrah, “[o]ut of an abundance of caution and so as to avoid any ‘surprises’ or misunderstandings, [she] . . . filed her motion to amend to explicitly and almost verbatim track the language of amended section 93-5-1 . . . .” Karrah explained that she moved to amend her complaint in order “to spell out the new . . . standard for habitual cruel and inhuman treatment . . . .”

¶11. But as previously noted, the legislative amendment to Section 93-5-1 was effective July 1, 2017, approximately six months before Karrah and Richard separated and Karrah filed her complaint for divorce. Thus, Karrah had ample time to include in her complaint any
allegation of spousal domestic abuse. Notwithstanding her failure to do so, the 2017 amendment to Section 93-5-1 was still applicable to Karrah’s complaint alleging habitual cruel and inhuman treatment. In other words, because Karrah filed for divorce on the ground
of habitual cruel and inhuman treatment after July 1, 2017, the effective date of the amendment, the amended language of Section 93-5-1 applied to her complaint. Additionally, the record shows that the parties participated in discovery and exchanged documentation
regarding Karrah’s allegations of spousal domestic abuse. Thus, Karrah’s last-minute motion to amend the complaint to “track the language of amended section 93-5-1” and to “spell out” the new standard was futile. Accordingly, the chancellor did not err by denying the motion.

¶12. Alternatively, even if the chancellor’s denial of Karrah’s motion to amend the complaint was erroneous, such error was harmless. The record shows, and Karrah admits, that “Karrah had already spelled out her evidence in her responses to discovery.” Moreover,
the record shows that Karrah testified at trial regarding her allegations of habitual cruel and inhuman treatment, including spousal domestic abuse. At the conclusion of Karrah’s case-in-chief, the chancellor granted her motion to amend the pleadings to conform to the evidence under Mississippi Rule of Civil Procedure 15(b). As a result, the chancellor considered all of the testimony and evidence offered by Karrah in support of her claim for divorce on the ground of habitual cruel and inhuman treatment, including spousal domestic abuse. Therefore, as acknowledged by Karrah, any error by the chancellor in denying the motion to amend the complaint was harmless.

Random thoughts:

One of the key advantages of the 2017 amendment is to do away with the strict corroboration requirement. It replaces corroboration with a determination of credibility by the court. So the concern of practitioners has been over how much is necessary to be pled in order to preserve the no-corroboration advantage.
This decision seems to say, without coming right out and saying it, that all you need to do is plead HCIT and the spousal abuse amendment is invoked.
As a practice consideration, if I were you, I would plead both HCIT and HCIT/spousal abuse, and I would probably spell out as much of the offensive behavior as applies. Why? Well, it eliminates the argument that the other side was not put on notice, and if you don’t choose to invoke it at trial it is mere surplusage in the pleading.
I did rule in the only case that has come before me with this issue that it was adequate to plead HCIT without the other language, but I still think that the better, most airtight way to approach it is to plead in detail.

Exhibit ? What Exhibit ? and Blankety-Blank

February 5, 2020 § 1 Comment

Two unfortunately recurring phenomena have an infinite capacity to frustrate chancellors to no end.

The first I will refer to as Exhibit ?, and I will illustrate it with a brief melodrama:

Say you have put off getting that order signed — perhaps because of a much more important (to you, not your client) golf game or visit to the spa — and now your client’s back is to the wall and needs it signed yesterday. You rush it over to the judge, who is in another county. Your order includes this language:

The Executor is authorized to execute a deed substantially in the form of the attached Exhibit A.

Next day when you call to check on whether the judge signed the order, the staff attorney says. “Oh, I planned to call you. Judge says she can’t sign it because there was no Exhibit A attached. She won’t be back in until next Tuesday. Have a nice weekend.” <Dial tone>

Exhibit? What Exhibit? I see it in pleadings, motions, orders, judgments. If it was important enough to refer to as an exhibit, then surely it was worth attaching.

The second is yet another sin of omission. Here’s your order:

The executor is ordered to pay attorney’s fees in the sum of $____________ for representation in this case. (There is nothing in the petition to clue the judge in as to what to place in that blank).

In this district we require the attorney for the fiduciary to include an amount in the petition to close or other appropriate pleading so that it will be de facto approved when the fiduciary signs it. But if you don’t do that, or attach it as an exhibit (see above) to the pleading, or somehow get it properly before the judge and in the record, don’t expect to get that order signed.

The same goes for pleadings. UCCR 2.03 says in its entirety: “No blanks shall be contained in any pleading.”

Sealing the Record

January 21, 2020 § Leave a comment

In the course of litigation between Fulgham, a lawyer, and his former law firm, Morgan & Morgan, PLLC and PA, the chancellor sealed the record at the PLLC/PA’s request. Fulgham objected to no avail. After he lost the case on other grounds, he appealed. One issue he raised was that the file should not have been sealed.

The COA reversed and remanded in Fulgham v. Morgan & Morgan, decided December 17, 2019. The court divided with J. Wilson, Westbrooks, Tindell, and McDonald concurring, Greenlee concurring in part and dissenting in part without separate opinion, Lawrence concurring in part and dissenting in part with separate opinion joined by Barnes and Greenlee. Carlton, McCarty, and C. Wilson did not participate. Lawrence’s concurrence/dissent refers to the “majority opinion,” so I will go with that term. J. Wilson wrote for the majority:

¶23. As noted above, following the initial ex parte hearing, the chancery court granted P.A./PLLC’s request to seal the entire case. P.A./PLLC stated in their written motion to seal the file that the case “concern[ed] confidential client information and communications, bound by attorney client privilege.” P.A./PLLC did not elaborate or provide any specific support for this claim in their motion or at the ex parte hearing. Nonetheless, the chancery court’s TRO provided “that this matter shall be sealed.” Fulgham later moved to lift the seal, but the chancery court did not address his motion. On appeal, Fulgham again moved to lift the seal, but a panel of the Supreme Court denied his motion, stating only that Fulgham’s motion was “not well taken and denied.”[Fn omitted]

¶24. Our Constitution mandates that “[a]ll courts shall be open,” Miss. Const. art. 3, § 24, and “Mississippi law favors public access to public records.” Estate of Cole v. Ferrell, 163 So. 3d 921, 925 (¶18) (Miss. 2012). “Court filings are considered to be public records, unless otherwise exempted by statute.” Id. at (¶15). In addition, a court may, within its discretion, determine that court filings or information contained therein “should be declared confidential or privileged” and sealed from public disclosure. Id. at (¶16). However, before sealing an entire case, a trial court should first “conduct the balancing test set out in Estate of Cole,” supra. Smith v. Doe, 268 So. 3d 457, 464 (¶27) (Miss. 2018); accord Butler Snow
LLP v. Estate of Mayfield, 281 So. 3d 1214, 1220 (¶¶27-29) (Miss. Ct. App. 2019). That test balances the claimed private interest in confidentiality against the public interest in open courts. Estate of Cole, 163 So. 3d at 924, 929 (¶¶11, 32-33).

¶25. In this case, the chancery court did not conduct any balancing test or any analysis of P.A./PLLC’s request to seal the entire case. The order sealing the case was simply entered following an ex parte hearing. Yet it is not clear that the court file in this case contains any privileged attorney-client communications or confidential client information. To the extent that it does, specific documents can be redacted or filed under seal as necessary. But the fact that a few specific filings may contain privileged or confidential information does not warrant sealing the entire case from public view.

¶26. In addition, although the Attorney Retention Agreement between Fulgham and P.A. to the public by action of the trial court . . . shall be closed to public access in the appellate courts and shall be treated as a confidential case by the clerk of the appellate courts.” contains a one-sided confidentiality provision, [Fn 13] that provision does not warrant sealing the entire the Agreement or the entire case. In this case, P.A. chose to make the Agreement a public judicial record by filing it in court and asking the court to interpret and enforce its terms. Once P.A. invoked the judicial process to enforce the Agreement, it was no longer entitled to insist that the Agreement remain confidential. See Estate of Cole, 163 So. 3d at 928 (¶28) (discussing Bank of Am. v. Hotel Rittenhouse Assocs., 800 F. 2d 339 (3d Cir. 1986)). Rather, the Agreement became a public record in a judicial proceeding, presumptively open to the public. Bank of Am., 800 F.2d at 345. It is conceivable that specific terms of the Agreement are sufficiently confidential and sensitive that parts of the Agreement could be redacted. [Fn 14] But the chancery court’s order sealing the entire case did not address that issue.

[Fn 13] The Agreement prohibits Fulgham, but not P.A., from disclosing the contents of the Agreement.

[Fn 14] On appeal, Morgan & Morgan has asserted that the Agreement contains “trade secrets.”

¶27. In summary, while a court has discretion to seal or require the redaction of court filings that contain confidential or privileged information, Estate of Cole, 163 So. 3d at 925 (¶16), the court must first balance the asserted private interest in confidentiality against the public interest in open courts and transparent judicial proceedings. Id. at 924, 929 (¶¶11, 32-33). The chancery court in this case failed to do so and abused its discretion by sealing the entire case file. Therefore, we vacate the chancery court’s order sealing the entire case. On remand, the chancery court may determine what, if any, part of the record should be sealed or redacted under the Supreme Court’s decision in Estate of Cole.

Mayfield was discussed here at this link.

That Which Must be Pled

February 20, 2019 § Leave a comment

Ever since the dawn of the MRCP, Mississippi has been at least nominally a notice pleading state. As R8 describes it, all that is required is a “short and plain statement of the claim showing that the pleader is entitled to relief” and a demand stating the relief requested. Contrast that with the arcane rules that demanded prolix and convoluted pleadings.

So, the result is that pleading for plaintiffs is much more streamlined since the MRCP, right? Well, yes, compared with the situation pre-rules. BUT there are requirements of which one must be aware lest one lapse into error. Here are the Advisory Committee Notes to R8, which succinctly state what is required:

Rule 8 allows claims and defenses to be stated in general terms so that the rights of the client are not lost by poor drafting skills of counsel. Under Rule 8(a), “it is only necessary that the pleadings provide sufficient notice to the defendant of the claims and grounds upon which relief is sought.” See DynaSteel Corp. v. Aztec Industries, Inc., 611 So. 2d 977 (Miss. 1992). A plaintiff must set forth direct or inferential fact allegations concerning all elements of a claim. See Penn. Nat’l Gaming, Inc. v. Ratliff, 954 So. 2d 427, 432 (Miss. 2005). Motions or pleadings seeking modification of child custody must include an allegation that a material change has occurred which adversely affects the child or children. It is not sufficient to allege that an adverse change will occur if the modification is not granted. See, e.g., McMurry v. Sadler, 846 So. 2d. 240, 244 (Miss. Ct. App. 2002). In cases involving the joinder of multiple plaintiffs, the complaint must contain the allegations identifying by name the defendant or defendants against whom each plaintiff asserts a claim, the alleged harm caused by specific defendants as to each plaintiff, and the location at which and time period during which the harm was caused. See 3M Co. v. Glass, 917 So. 2d 90, 92 (Miss. 2005); Harold’s Auto Parts, Inc. v. Mangialardi, 889 So. 2d 493, 495 (Miss. 2004). Failure to provide this “core information” is a violation of Rules 8 and 11. Plaintiffs in such cases must also plead sufficient facts to support joinder. Glass, 917 So. 2d at 93; Mangialardi, 889 So. 2d at 495. [My emphasis]

Often the inadequacy of the pleading is brought up via a R12(b)(6) motion which, when granted, allows leave to amend and correct the deficiency. In McMurry, supra, however, the defendant sprang the trap at trial, and when the plaintiff failed to move to amend the judge dismissed the pleading.

McMurry requires that all three elements of modification of custody be pled (i.e., material change, adverse effect, best interest). But there are custody modifications that involve detrimental or dangerous situation for the child a la Riley v. Doerner, 677 So.2d 740, 744 (Miss. 1996), with no adverse effect. In those cases you should spell out in your petition or complaint that there has been a material change creating a detrimental or dangerous situation for the child, and it is in the child’s best interest to change custody.

Who Gets to Challenge Constitutionality?

February 11, 2019 § Leave a comment

In the divorce judgment entered between Michael and Joesie Gerty, the chancellor sua sponte declared MCA § 93-5-2 (divorce on the ground of irreconcilable differences) unconstitutional.

Michael, Joesie, and the State of Mississippi all filed R59 motions asking the court to set aside that part of her ruling because no party had pled, argued, or offered evidence on the issue. The chancellor did not change her ruling, and all three movants appealed.

In Gerty and Mississippi, ex re. Hood v. Gerty, decided December 13, 2018, the MSSC reversed on the issue of constitutionality. Justice Randolph’s opinion for a unanimous court made short work of the issue:

¶34. Few subjects in our jurisprudence are so settled as the maxim that a statute’s constitutionality will not be considered unless it has been specifically pleaded. See Martin [v. Lowery], 912 So. 2d [461] at 464-65; Lawrence Cty. Sch. Dist. v. Bowden, 912 So. 2d 898, 900 (Miss. 2005); City of Jackson v. Lakeland Lounge of Jackson, Inc., 688 So. 2d 742, 749 (Miss. 1996) (citing State ex rel. Carr v. Cabana Terrace, Inc., 247 Miss. 26, 153 So. 2d 257, 260 (1963)); see also Colburn v. State, 431 So. 2d 1111, 1114 (Miss. 1983); Witt v. Mitchell, 437 So. 2d 63, 66 (Miss. 1983).“[I]issues are framed, formed and bounded by the pleadings of the litigants. The Court is limited to the issues raised in the pleadings and proof contained in the record.” Lakeland Lounge, 688 So. 2d at 750 (emphasis removed) (internal citation omitted). A trial court may not raise a constitutional issue sua sponte. In re Estate of Miller v. Miller, 409 So. 2d 715, 718 (Miss. 1982).

¶35. The chancellor fully acknowledges that the litigants did not raise the constitutionality of Section 93-5-2 in their pleadings or proof. The chancellor’s ruling, that the statutory scheme presented by Section 93-5-2 is unconstitutional, exceeded her authority. The rule of law requires that we reverse and vacate the chancellor’s judgment declaring the statute unconstitutional and granting an irreconcilable-differences divorce.

The opinion does not describe the basis for the chancellor’s ruling of unconstitutionality. In Footnote 5, the opinion states that, “An amicus brief was filed by the Misssissippi Coalition Against Domestic Violence in support of the chancellor’s finding. The amicus called for affirming the chancellor, because the statute deprived domestic-abuse victims of constitutional rights. However, no domestic violence was pleaded or proved in this matter.”

The court reversed and remanded on other issues raised by the parties.

At ¶5, this enigmatic statement appears: “Today’s case … is unique but not unprecedented … ” It seems to me that something unique is by its nature unprecedented.

This case, involving a sua sponte unconstitutionality ruling, is not a scenario you are likely to encounter, but, as the precedent shows, it is in the realm of possibility.

Affidavits in Chancery

October 10, 2018 § 4 Comments

An affidavit is a sworn statement. It must include an oath. You can read about the distinction between an oath and an acknowledgment at this link. A document purporting to do the work of an affidavit that bears an authentication instead of an affidavit is void for that purpose.

There are several affidavits that we use routinely in chancery:

Affidavit of known creditors. This affidavit is required by MCA § 93-7-145(2) to be filed before publication of notice to creditors. The statute reads, “The executor or administrator shall file with the clerk of court an affidavit stating that such executor or administrator has made reasonably diligent efforts to identify persons having claims against the estate and has given notice by mail as required in subsection (1) of this section to all persons so identified. Upon filing such affidavit … ” it is the duty of the fiduciary to publish notice [My emphasis]. Our courts have held that an affidavit filed after publication is a nullity.
Affidavit of unknown heirs. Before publishing process for unknown heirs in an action to determine heirship, one must file an affidavit that “the names of such heirs are unknown,” per MRCP 4(c)(4)(D), and it must also state per MRCP 4(c)(4)(A) that the post office address is unknown to the petitioner “after diligent inquiry.” These are key ingredients, and failure to follow the rules will mean that you don’t have good process. The affidavit must be made by the petitioner unless certain specific language is used as spelled out in the rule.
Affidavit of diligent inquiry for publication process. Before you can publish process for a non-resident or a person not to be found in the state per MRCP 4(c)(4)(A), there must be an affidavit filed with the clerk stating either that the person or persons are non-residents or are not to be found in the state after diligent inquiry. If the post office address is unknown, publication proceeds. If a post office address is known, you must include it in your publication and take the additional step of having the clerk mail a copy of the summons and pleading to that address by regular first-class mail, and the clerk must make a notation on the docket to that effect. The affidavit must be made by the petitioner unless the specific language required in the rule is applied.
Affidavits in support of and in opposition to summary judgment. Rule 56 says that, “When a motion for summary judgment is made and supported [by affidavits] as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise as provided in this rule. must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”
Affidavit of non-collusion. MCA § 93-5-7, states that “(7) in all cases, except complaints seeking a divorce on the ground of irreconcilable differences, the complaint must be accompanied with an affidavit of the plaintiff that it is not filed by collusion with the defendant for the purpose of obtaining a divorce, but that the cause or causes for divorce stated in the complaint are true as stated.”
UCCJEA affidavit. In any case involving custody, each party is required to file an affidavit spelling out the information required in MCA § 93-27-209, and the duty to provide the information to the court is a continuing one, meaning that the affidavit must be updated as circumstances change or as newly discovered information becomes known.
Affidavits on motions. MRCP 43(e) states that, “When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.” Note that the rule applies only to motions, and not to hearings on pleadings that are on the merits seeking a final judgment. Rule 7 describes the difference between a pleading and a motion.
Sworn pleadings in probate and fiduciary matters. Uniform Chancery Court Rule 6.13 specifically states in part that, “Every pleading, including accounts and reports, filed by a fiduciary shall be personally signed and sworn to by him.” I take that to mean that every document filed by your fiduciary shall be sworn, thus making it the equivalent of an affidavit. MCA § 93-13-38(1) reads, “All the provisions of the law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, as far as applicable and not otherwise provided, be observed and enforced in a guardianship of the person and estate.” MCA § 93-13-259 says that, ” … all laws relative to the guardianship of a minor shall be applicable to a conservator.”

Ore Tenus: When is it Allowable?

September 4, 2018 § Leave a comment

Lawyers come before us with agreed orders that read something like this: “On motion of the plaintiff ore tenus, the parties agree that …” and the order goes on to spell out some relief.

Ore tenus, of course is Latin for “by word of mouth,” which means that the motion is made orally, and not in writing.

MRCP 7(b)(1) speaks directly to this:

An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of a writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.

The rule could not be any clearer. You must file a motion in writing asking for particular relief, and you may then follow it up with that agreed order. As I tell lawyers all the time: “Give me an agreed order signed off on by everyone, or set it for hearing.”

There are all kinds of reasons why this is the best practice. The chief one in my opinion is that it makes for a clear record. A motion is filed, and later there is a corresponding order. In fiduciary matters that motion signed and sworn by the fiduciary may be what stands between you and an inquiry by a reviewing court as to whether you have done something improper, as in the case at this link. The written motion also documents for the record exactly what it was that the court was called upon to do and that notice was given.

The one and only exception to the writing requirement is that the motion may be made orally in the course of a hearing or trial. The significance of that exception is that there is a record of what the court is being called upon to do, followed by the court’s immediate or even later ruling. My thinking is that the rule refers to hearings on the record, as opposed to informal hearings or discussions in chambers or even in the courtroom without a record. In those situations, the court should direct someone to file a written motion complying with R7(b)(1) and set it for hearing.

Pleadings and their Proper Names

May 8, 2018 § 4 Comments

We all lapse into using the general term “pleadings” to embrace just about any and every filing with the court. But that’s a bad habit that we need to break.

There are only seven instruments that are considered pleadings under the MRCP. They are listed in R7(a), which reads:

Pleadings. There shall be a complaint [or a petition, see below] and an answer [which may include a R13 counterclaim]; a reply to a counter-claim denominated as such; [a cross-claim against a co-defendant] an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who is not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer. [My emphasis and editorial comments]

That’s it. Those are the filings that by definition are pleadings. A motion is not a pleading. Motions “and other papers” are dealt with in R7(b), separate and apart from pleadings.

And while we’re at it, notice that there is no mention in R7 of “countercomplaints,” “cross-petitions,” or “motion for modification” or any other such products of an overactive legal imagination. As the court said in Cornelius v. Overstreet, 757 So. 2d 332, 335 (Miss. App. 2000):

¶ 9. In addition, this Court would like to comment to the bar and the trial bench about cases similar in nature which fall within the purview of Rule 81(d) of the Mississippi Rules of Civil Procedure. The initiation of such actions should be by filing “complaints” or “petitions,” and “counterclaims” or “cross-claims” (whichever might be appropriate), not “motions” and “cross-petitions” as was done in this case. See M.R.C.P. 13, 81(d)(1–3), 81(f), and comments to 81(d)(3) and 81(f).

The use of the term “Petition” in place of complaint in chancery matters has been suggested by the MSSC to reflect long-standing practice particularly in estate matters, and to distinguish contempt and modification actions based on continuing jurisdiction from initial complaints.

There is no penalty for mislabelling a pleading other than the usual price an otherwise well-educated person pays for appearing ignorant.

A previous post dealing with this same subject is here. As an added bonus, you will note that I lumped motions in with pleadings in that earlier post. Well, that just goes to prove what I said in my first sentence above.

A Brief Word About Amendments

March 28, 2018 § 5 Comments

This from footnote 6 to the COA’s opinion in Alexander v. Pitts, decided November 14, 2017:

“If a party fails to seek leave of court or permission of the opposing party prior to amending pleadings, such amendment is improper and will be struck.” D.P. Holmes Trucking, LLC v. Butler, 94 So.2d 248, 255 (¶20)(Miss. 2012).

MRCP 15(a) could not be clearer. Here are the only ways to amend your pleadings:

If no responsive pleading has been filed, you may amend at any time, subject to 2, below;
If no responsive pleading is permitted (see below), and the action has not been placed on the trial calendar, you may amend at any time within thirty days after it is served;
If a R12(b)(6) motion is granted against you, you may amend if the court grants you leave to do so, and subject to the conditions imposed by the court;
In the course of a trial you may ask the court to amend the pleadings to conform to the proof, if you follow the procedure spelled out in R15(b);
If none of the above apply, the only way you can amend only by leave of court or upon written consent consent of the adverse party.

If you don’t follow the procedures above, you are running the risk that the other party will ask at the most inopportune time to dismiss the very pleading that you thought you had shown up to try and into which you had invested all your preparation time. And — worse — if the judge shrugs off the other side’s objection and lets you go on for two or three days, you stand to have to do a re-do after the COA reverses and remands.

Moral of the story: Read R15 and follow the amendment procedures exactly.

A query and a comment: Does anyone know what sort of pleading is one to which “no responsive pleading is permitted,” as mentioned in R15(a)? R81(d)(4) talks about answers not being required in certain chancery matters, unless ordered by the court. I am not aware of any proceeding in which no responsive pleading is permitted.

Four Judges, and a Remand Makes Five

March 27, 2017 § 2 Comments

When Jon A. Swartzfager and Thomas R. Saul had a disagreement over the sale of some land, Saul filed suit in chancery court for breach of contract, equitable estoppel, and promissory estoppel.

The chancellor of the district recused, and the MSSC appointed Special Chancellor #1. That judge granted partial summary judgment and conducted some proceedings, in one of which he declared a written instrument to be a valid, enforceable contract. Before he got to a trial, however, Chancellor #2 unfortunately died.

Enter Chancellor #3. This time, the judge did set the case for trial, and it was heard on November 29, 2012, and January 25 and April 8, 2013. Before Chancellor #3 could render a final judgment, he, too, died.

The MSSC appointed Chancellor #4, who huddled with the attorneys and entered an order memorializing the parties’ agreement that he could review the existing record and render a decision. Chancellor #4 did just that, finding that Swartzfager had breached the contract, and awarding damages of more than $200,000, which included $79,098.81 in prejudgment interest. Swartzfager appealed.

In the case of Swartzfager v. Saul, decided February 16, 2017, the MSSC reversed in part and remanded. Essentially, the court affirmed everything but the award of prejudgment interest, and remanded for the chancellor to recompute damages without the prejudgment interest.

Only thing is, Chancellor #4 is now retired and is no longer sitting as a senior or special judge, so he will not be available to deal with the case on remand.

Enter Chancellor #5. Stay tuned.

A few interesting points from the decision by Justice Maxwell:

Swartzfager argued that the MSSC should review the case de novo because Chancellor #4 based his decision on testimony before previously-assigned chancellors; he also urged that the previous chancellors’ findings should be given no deference. The court rejected that claim at ¶18 on the principle of judicial estoppel. The parties had agreed to follow that procedure, and he is precluded from taking a contrary position at a later stage of the case.
Another point pressed unsuccessfully by Swartzfager was that it was error for the chancellor to adopt Saul’s findings of fact and conclusions of law verbatim. The court disagreed, pointing out that the judge made his own findings, including adopting some findings of previous chancellors. I might add that even if the chancellor had wholly adopted Saul’s findings, it was not error for him to do so. You can read a post about the subject here.
The reversal on the issue of prejudgment interest came about because Saul had not included a prayer for that relief in his complaint, and so he was precluded from getting that relief per MRCP 8. The court noted that, since the reversal was based on the state of the pleadings, and not on the merits, it did not need to address whether the damages were liquidated, or if there were bad faith, which are two of the bases necessary to support an award of prejudgment interest.
There’s a lot of substance in this case that you might find useful, including: what it takes for a writing to be a contract; equitable estoppel; emotional distress damages arising out of a contract dispute; and assessment of attorney’s fees in absence of punitive damages.

Where Am I?