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:

  1. If no responsive pleading has been filed, you may amend at any time, subject to 2, below;
  2. 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;
  3. 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;
  4. 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);
  5. 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.

Communicating: Improving a Basic Skill

December 7, 2016 § 1 Comment

At its heart the legal profession is all about communicating, which consists of at least several elements:

  • First, one must understand that which must be communicated. This entails analysis of the situation to break it down into its legal elements, and then application of the law to those elements.
  • Second, the analysis has to be translated into understandable words.
  • Third, the understandable words have to be presented in an organized, understandable, persuasive manner.

You can probably improve on that, but it suits my purposes for now.

At the trial level, effective communication involves well-written pleadings and briefs or memoranda of law, and oral argument, as well as the way you examine witnesses. At the appellate level, brief-writing and oral argument depend heavily on how well the lawyer can communicate.

Some things that get in the way of effective communication are poor grammar and spelling, improper word choice and usage, and disorganized thinking. And, it should go without saying that your communication is for naught if your legal analysis is flawed.

Here are a few tools to help you craft your communications effectively:

  • The Elements of Style, by William Strunk and E.B. White. This little gem at fewer than 100 pages (at least in the worn edition I have), is crammed with useful insights into effective writing. Here you will find such usage solutions as how to create the possessive plural of names ending in s, proper use of semi-colons with clauses, whether to use a singular or plural verb forms with words such as “or” or with linking verbs, and the proper case of pronouns, all presented in clear language with easy-to-grasp examples. There are other sections on principles of composition, matters of form, misused words and expressions, and suggestions for improving your style of writing.
  • Fowler’s Dictionary of Modern English Usage, by H.W. Fowler, Jeremy Butterfield, editor. When should one use italics? What is the difference between reciprocal and mutual, or apprehend and comprehend, or unless and until? Why the word “literally” conveys the opposite sense of what you intend? Do we still observe rules such as avoiding split infinitives and ending sentences with a preposition (hint: it’s usually okay to)? You will find answers to these and many, many other questions that routinely pop up as you write in this useful book that is arranged by subject alphabetically.
  • Any good thesaurus. When you say the same thing over and over using the same words, your words have no impact.
  • A good dictionary. Before you use that word, you might want to look it up (takes three seconds) to make sure it means what you think it does.
  • The Law Prose blog. A gold mine of information on proper and potent use of legal terminology. This is one you should bookmark.
  • Adams on Contract Drafting offers guidance on how to draft contracts in ways that avoid ambiguity and clearly state the intent of the parties. Even if all of your drafting practice consists of property settlement agreements, you can learn something here about how precision in the use of language can make a big difference between success and failure of your instruments.
  • Here’s a link to an article in the ABA Journal Online on How to Bring a More Conversational Tone to Your Writing, which is meritorious in its own right, but illustrates also that there are resources all over the internet that you can bring to bear in your quest to be a more productive communicator.

You may be surprised how, when you concentrate on making your language more concise, correct, and powerful, you will simultaneously discover weaknesses in your legal analysis and thought process that you can shore up and strengthen before you ever dispatch that communication to counsel opposite and the court. That’s the kind of strength that distinguishes a really good lawyer from a mediocre one.

The Dismissive Dismissal

October 31, 2016 § 2 Comments

In the case of Crater v. BNY Mellon, handed down October 18, 2016, the trial court dismissed the plaintiff’s complaint for lack of standing and refused her motion to amend.

Bank of New York (BNY) Mellon had begin foreclosure on the deed of trust (DT) on Brenda Crater’s home. She filed suit alleging that her original mortgage company, HLC, had improperly assigned its interest in the DT to BNY Mellon.

Mellon moved to dismiss for failure to state a claim (R 12(b)(6)) on the basis that Crater had no standing to dispute the assignment.

Crater then filed a motion to amend to assert various new claims, including fraud.

The chancellor, six days later, summarily dismissed Crater’s complaint.

Crater moved to amend or alter the dismissal order claiming that the court improperly failed to grant her motion to amend. The chancellor overruled the motion and refused to grant leave to amend, finding that the new claims had no legal basis and were barred by the SOL. Brenda appealed.

In its opinion, by Judge Greenlee, the court rejected Brenda’s argument that the trial judge erroneously dismissed her complaint:

¶10. Crater asserts that the trial court erred by not ruling on her motion to amend her
complaint prior to granting Mellon’s motion to dismiss. Mississippi Rule of Civil Procedure 15(a) states that when a Mississippi Rule of Civil Procedure 12(b)(6) motion is before the court, leave to amend shall be freely given when justice so requires. M.R.C.P. 15(a). If the facts and circumstances relied upon by a plaintiff may be a proper subject of relief, she should be given the opportunity to test her claim on the merits. Webb [v. Braswell, 930 So.2d ]387] at 393 (¶9) (citing Moeller v. Am. Guar. & Liab. Ins., 812 So. 2d 953, 962 (¶28) (Miss. 2002)). If it is apparent that the amendment would cause undue prejudice to the opposing party because the amendment would be futile, then leave should not be freely given. Id.

The court went on to find that, since Crater’s new claims were against a non-party who had not been served with process, and the SOL barred the vague claims, and since they invoked a statutory right that did not exist, amendment would be futile, and should not have been granted. The chancellor, therefore, was not in error.

This case is a reminder that, if you get dismissed per R12(b)(6), you do not have an automatic right to a do-over on your pleadings. You must have a viable, judiciable claim.

The amendment provision of 12(b)(6) is designed to prevent an otherwise viable suit from being dismissed due to flawed pleading. For instance, if you file a child custody modification case and do not plead that “there has been a material change in circumstances that is having or has had an adverse effect on the minor child,” or words to that effect, the complaint fails to state a claim. See, McMurry v. Sadler, 846 So.2d 240, 244 (Miss. App. 2002). If the other side tests the sufficiency of your pleading that omitted those words, and the judge sustains their motion, you should be granted leave to amend to add the appropriate language.

If you get dinged by a 12(b)(6) motion, be sure you make an immediate motion for leave to amend. The rule specifically states that, ” … if the motion is granted, leave to amend shall be granted in accordance with Rule 15(a).” The rule does not say that the judge shall automatically grant it without your motion to do so, although I see no reason why the judge can not; however, if the judge does not do it sua sponte, and you stood silent, you should assume that you don’t have leave to amend, and your suit may go bye-bye with the running of time.

A post on the critical importance of pleading both material change and adverse effect in custody-modification cases is at this link.

The Power of Prayer

August 16, 2016 § 1 Comment

In a divorce case filed in our district (not assigned to me), the female defendant filed a pro se, handwritten answer generally admitting residence and the like, and denying the fault allegations. In response to the relief portion of the complaint, which plaintiff introduced with the standard language, ” … plaintiff prays for the following relief … “, the woman denied his claim and added that:

” … he’d better pray longer and harder.”

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