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.”

SOL, the PSA, and Rule 81

September 16, 2015 § 3 Comments

I posted here not too long ago about the need to assert a defense of statute of limitations (SOL), saying that “It is not an automatic bar to the action, but rather a defense that must be affirmatively pled.”

That quote goes a tad too far. Although MRCP 12 specifically requires that SOL be pled as an affirmative defense, R 12(b) goes on to say that, “If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief.” Of course, matters brought under R 81 do not require an answer, so no affirmative defensive pleading is required, and the SOL defense may be asserted at trial.

That is what happened in DHS v. Guidry, 830 So.2d 628, 634 (Miss. 2002). In a contempt action brought under R 81, Jackie Guidry did file an answer to the R 81 petition, but it did not include a SOL defense. Jackie instead raised the defense of SOL for the first time at trial, and DHS objected on the basis that no pleading asserting the defense had been filed. The chancellor ruled in Jackie’s favor, and DHS appealed. The MSSC affirmed:

¶ 19. DHS next argues Jackie waived his defense of statute of limitations when he failed to raise the defense in his answer. Jackie contends that though he did file responsive pleadings, no answer was required under Miss. R. Civ. P. 12(b). Because no answer was required, Jackie argues his affirmative defenses could have been properly pled at any time.

¶ 20. An affirmative defense, such as a statute of limitations, is waived if not raised by a pleading. Miss. R. Civ. P. 12(b). However, this rule only applies when a responsive pleading is required. Rule 12(b) states in pertinent part:

If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief….

Pursuant to Miss. R. Civ. P. 81(d)(2) & (4), no answer is required in a petition for contempt based on unpaid child support. Nevertheless, Jackie’s counsel did file an answer, but did not raise the affirmative defense of statute of limitations. However, at the hearing, Jackie made an ore tenus motion to dismiss the petition as being barred by the statute of limitations.

¶ 21. In a recent case handed down by the court of appeals, that court held there was no waiver for failure to plead an affirmative defense when no pleading was required. Brown v. Brown, 822 So.2d 1119 (Miss.Ct.App.2002). The facts of Brown are remarkably similar to the case sub judice. The Browns were divorced in 1979, and Mr. Brown was ordered to pay child support. Id. at 1120. In February 2000, Mrs. Brown filed a motion for contempt alleging Mr. Brown had failed to pay any child support since the 1979 decree. Id. The chancellor awarded Mrs. Brown $54,697.66 in unpaid child support. Id. at 1121.

¶ 22. The Court of Appeals held that because no answer was required to the petition for contempt, the answer, although filed by Brown, was not a required pleading. Id. “We find no waiver for failure to plead an affirmative defense when no pleading is required.” Id. Because the affirmative defense of statute of limitations had not been waived, the claim for the older child was barred. Id. But, the daughter’s claim was viable because she had not yet reached her twenty-eighth birthday. Id. at 1121-22.

¶ 23. This Court finds the affirmative defense of statute of limitations was not waived here because, although Jackie filed an answer, such pleading was not required. The chancellor was correct in finding Jackie had the right to raise his defenses at any stage, including at trial. Therefore, Jackie’s defense of statute of limitations will serve as a bar to any claims filed after February 1, 1998, seven years after his youngest child reached the age of 21.

So I was correct in the original post insofar as I advised you to assert the defense, but went too far in saying that it must be pled — at least in R 81 matters. It should go without saying that if you don’t get something into the record with the words statute of limitations included, you won’t be able to complain about it on appeal.

Actually, though, even if a matter is not required to be pled, you may file a pleading as Jackie did, and sometimes it’s just a good idea to do that.


Thanks to Joe K. for the reference to Guidry.

Essential Jurisdictional Facts for Divorce

September 9, 2015 § 9 Comments

There are four fundamental facts you need to know about divorce in Mississippi:

  1. Venue is jurisdictional.
  2. Residence is jurisdictional.
  3. There must have been a marriage for there to be a divorce.
  4. Pleadings are not evidence.

Knowing those four things, then, you need to make sure that you put proof in the record, most usually in the form of testimony, that establishes venue and residence — ergo jurisdiction  — and that there was a marriage.

Here are the jurisdictional facts that need to be in the record for the court to exercise jurisdiction over a divorce:

  • That there was a valid marriage. When and where were the parties married?
  • When was the separation? Separation is not essential for the granting of a divorce, per MCA 93-5-4, but it helps the judge understand the context of the divorce. Many chancellors will want you to establish that, despite the non-separation, they have not had consensual sexual intercourse.
  • Where is venue? For a fault-based divorce, the case must be filed in: (1) the county where the defendant resides; or (2) the county where the plaintiff resides if the parties lived in that county up to the time of the separation and the plaintiff has continued to live there; or (3) the county where the plaintiff resides if the defendant is a non-resident or not to be found in the state. If the ground for divorce is solely irreconcilable differences, the complaint may be filed in the county of either party. MCA 93-5-11. If the action is not filed in the proper county, the court has no jurisdiction, and the case must be transferred to the proper county, per MCA 93-5-11 and MRCP 82(d).
  • Is there the requisite residential period? One of the parties must have been a bona fide resident of the State of Mississippi “within this state” for six months “next preceding” the commencement of the case. That means that there must be six uninterrupted months of actual residence inside the state. It is not enough to move here four months before filing and claim that you actually changed your residence to Mississippi two months before moving here, or to stitch together several periods of residency to make six months. The six-month period does not apply to U.S. military actually stationed in Mississippi, provided that the member resided with the spouse in Mississippi, and the separation occurred in Mississippi. Residency must not have been acquired to secure a divorce. MCA 93-5-5.

Don’t forget the UCCJEA allegations if custody is an issue.

Just because you plead all of the jurisdictional requirements, that does not prove anything because pleadings are not evidence, and the only way to prove something is to get evidence into the record — meaning the trial transcript.

I find that even experienced lawyers fail to get this vital proof into the record in some cases. It happens primarily in cases where the plaintiff’s attorney calls the other party adversely as the first witness. Those jurisdictional fact questions somehow never get asked. Maybe the attorney is afraid that the adverse party will deny residency or something similar. Maybe the attorney is more preoccupied with confronting the cheater with videos, or making him admit he squandered the family fortune gambling. Maybe it’s simple oversight. Whatever, it should not be left up to the judge to inquire about these jurisdictional nuances.

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.


The Expectation of Privacy

May 4, 2015 § 4 Comments

The MSSC last Thursday published a new MRCP 5.1 that imposes some important privacy protections to all filings in chancery court — both electronic and paper. Here is the new rule, which went into effect April 30, 2015:


(a) Redacted Filings. Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual’s social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number, a party or nonparty making the filing may include only:

(1) the last four digits of the social-security number and taxpayer-identification number;

(2) the year of the individual’s birth;

(3) the minor’s initials; and

(4) the last four digits of the financial-account number.

(b) Exemptions from the Redaction Requirement. The redaction requirement does not apply to the following:

(1) a financial-account number that identifies the property allegedly subject to forfeiture in a forfeiture proceeding;

(2) the record of an administrative or agency proceeding; and

(3) the record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed.

(c) Filings Made Under Seal. The court may order that a filing be made under seal without redaction. The court may later unseal the filing or order the person who made the filing to file a redacted version for the public record.

(d) Protective Orders. For good cause, the court may by order in a case:

(1) require redaction of additional information; or

(2) limit or prohibit a nonparty’s remote electronic access to a document filed with the court.

(e) Option for Additional Unredacted Filing Under Seal. A person making a redacted filing may also file an unredacted copy under seal. The court must retain the unredacted copy as part of the record.

(f) Option for Filing a Reference List. A filing that contains redacted information may be filed together with a reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The list must be filed under seal and may be amended as of right. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information.

(g) Waiver of Protection of Identifiers. A person waives the protection of Rule 5.1(a) as to the person’s own information by filing it without redaction and not under seal.

These same restrictions, in slightly different form, are in Section 9 of the Electronic Courts Administrative Procedures. This amendment to the MRCP extends the existing electronic filing privacy protections to paper, or conventional, filings.

From a practice standpoint:

  • Tax returns need to be scrutinized carefully. It’s not enough to redact the taxpayers’ SSN’s at the top of the returns. The children’s names and SSN’s are also on the return. Schedule C may include a taxpayer ID number.
  • On 8.05’s, use the initials of the children and their ages rather than their full names and birth dates. As for the parties, again, use their ages and not birthdates. For financial accounts, use only the last four digits. Do not include taxpayer ID numbers anywhere.
  • If you slip up and include any of the proscribed information, you will be deemed to have waived the protection of the rule for your client. If that results in any damage due to identity theft or other misuse, you could be called to account.

The obvious purpose of this amendment is to prevent identity thieves from trolling for SSN’s and birthdates. Keeping the children’s names out protects them from predators.

This rule is in effect right now. School your staff in its requirements and begin observing them yourself. Discovery, particularly voluminous discovery, is typically chock full of this kind of private information. You need to be diligent to protect the interest of your clients.


Affirmative Defenses in Divorces

December 9, 2014 § Leave a comment

MRCP 8(c) requires that you plead in your responsive pleadings any matters that constitute “an avoidance or affirmative defense.” Specifically listed in the body of the rule are matters such as statute of limitations, accord and satisfaction, res judicata, etc.

Some of those listed defenses may be available in chancery matters such as contract disputes, land matters, and business dissolution, but they have no application in divorce, as I posted here before; nonetheless, some lawyers plead them in mechanical fashion, raising some humorous implications.

In a divorce case, there are some well-established affirmative defenses to grounds for divorcethat are not listed in R8, but that need to be pled in order to invoke them. They include:

  • Prior knowledge. This applies where the spouse knew, for instance, that the wife was pregnant by another man when he married her, and yet married her anyway. Or that the wife knew before the marriage that the husband was a drug addict, and went ahead with the marriage despite the knowledge.
  • Ratification and condonation. Two closely related concepts. A party gives up a ground by continuing to live with the other after knowledge of fault. These defenses have somewhat limited application in HCIT.
  • Recrimination. An archaic defense no longer favored in our law, by which the proponent may be denied a divorce if he is guilty of a ground for divorce.
  • Reformation. Applicable primarily in habitual drunkenness and drug use cases, where the accused party has quit abusing the substance.
  • Connivance and collusion. Where the parties have conspired either for one to allow the other’s wrongful conduct so as to create a ground, or where the parties have agreed to perjure themselves to do so.
  • Res judicata. Same parties and same issues in a previous matter that was reduced to a final judgment.

A comprehensive look at these and several lesser-known defenses is found in Professor Bell’s Mississippi Family Law, 2d Ed., § 4.03, pp. 99-104. If you practice any family law, and you don’t have a copy of her definitive treatise, you need to get one asap.

The clear and obvious thread running through the affirmative divorce defenses listed above is that they each are “an avoidance or affirmative defense” to a ground for divorce.

If you fail to plead affirmative defenses to grounds for divorce on behalf of your client, the only way you may present them at trial is if they are tried by consent. If, on the other hand, the other side objects, the judge will have to sustain the objection and exclude the testimony.

In the case of Lee v. Lee, decided by the COA on November 25, 2014, Nikki Lee charged her husband, Chris, with habitual drunkenness. He did not plead any affirmative defenses, but at trial he attempted to put on proof that Nikki knew when she married him of his drinking habits. Nikki objected, and the chancellor excluded the evidence, ruling that Chris had waived the defense by not pleading it affirmatively. Chris appealed.

Judge Griffis, for the unanimous court:

¶15. Condonation or antenuptial knowledge, as affirmative defenses, must be specifically pleaded or else the defenses are waived. Carambat v. Carambat, 72 So. 3d 505, 511 (¶27) (Miss. 2011) (citing M.R.C.P. 8(c); Ashburn v. Ashburn, 970 So. 2d 204, 212 (¶23) (Miss. Ct. App. 2007)). “Affirmative defenses that are neither pled nor tried by consent are deemed waived.” Ashburn, 970 So. 2d at 212 (¶23) (quoting Goode v. Village of Woodgreen Homeowners, 662 So. 2d 1064, 1077 (Miss. 1995)).

¶16. Chris did not raise condonation or antenuptial knowledge as an affirmative defense in his pleadings. However, parties may try an affirmative defense through implied consent. Mississippi Rules of Civil Procedure 15(b) provides:

When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon the motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.

See also Lahmann v. Hallmon, 722 So. 2d 614, 691 (¶15) (Miss. 1998).

¶17. In his order, the chancellor found that Chris had waived the affirmative defense of condonation, because he did not plead it as an affirmative defense. The chancellor ruled:

“Chris did not plead condonation as a defense in his pleadings. Therefore, to the extent that Chris may have been attempting to raise a defense of condonation, the Court finds that this defense has been waived.” The chancellor did not address a defense of antenuptial knowledge or if the parties tried condonation by express or implied consent.

¶18. From the record, there is no indication the parties agreed to try condonation or antenuptial knowledge by express consent. Therefore, the question remains whether the parties tried the issue through implied consent. While issues not raised in the pleadings may be tried by implied consent, the party relying on implied consent for an issue must demonstrate certain requirements.

¶19. First, in order to find the parties tried the issue by implied consent, this Court must determine if the parties knew “‘that a new issue was being litigated at trial.’” Mabus v. Mabus, 890 So. 2d 806, 814 (¶32) (Miss. 2003) (quoting Setser v. Piazza, 644 So. 2d 1211, 1217 (Miss. 1994)). Further, this Court will not find implied consent “where the ‘questions asked or the evidence presented at trial are relevant to the issues actually raised in the pleadings.’” Id. (citation omitted).

The court went on to analyze the record, and concluded that the issues had not been tried by implied consent, and the chancellor’s ruling was affirmed.

Next time you represent a Chris in a case similar to this, be sure to assert in your responsive pleading every matter you feel may raise a legitimate affirmative defense. I say legitimate because it seriously detracts from your credibility to plead things like accord and satisfaction, or assumption of risk, or injury by fellow servant in your answer to a divorce complaint. But it makes perfect sense to spell out with whatever label you apply that the other party had pre-marriage knowledge, or that he condoned the conduct, or any other matter that legitimately constitutes “an avoidance or affirmative defense.” You are not limited to the classic defenses, but the matter must be an actual, arguable defense.

If you represent a Nikki, object vociferously to any attempt to put on proof of unpled defenses. Protect your record. In this case, Nikki’s attorney protected her record, and the outcome was favorable to Nikki.

What it Means When You Sign a Pleading

November 13, 2014 § Leave a comment

We talked Monday about what can happen when one knowingly files a false pleading.

Aside from the fact that it’s patently unethical to do so, there is a specific requirement in the MRCP about a lawyer’s representations to the court via her pleadings. It’s in R11(a), which states in part:

Every pleading or motion of a party represented by an attorney shall be signed by at least one attorney of record … The signature of an attorney shall constitute a certificate that the attorney has read the pleading or motion; that to the best of the attorney’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay …

That’s pretty straightforward. You have to have read the pleading, and if you fail to do that, you are still responsible for its contents since you certified to the court that you are aware of what is in it. You have to do more than take your client’s word for it that there is good ground to support the claims, because you are certifying to the court that you have made sufficient inquiry to determine that it is, indeed, a meritorious claim. And you can never file an unmeritorious pleading just to hold things up while your client makes good his escape or otherwise arranges his affairs to his advantage.

If the court finds that you have not signed pleadings or signed them with intent to defeat the purpose of the rule, you are subject to the sanctions in R11(b), including discipline, reasonable expenses and attorney’s fees. The sanctions extend both to the client and to the lawyer.

Carelessness is no excuse. The rule requires that you put some thought and attention into the pleadings that you file.

A Case for Sanctions

November 10, 2014 § 3 Comments

Louis Pannagl had made a will in 2001. In April, 2011, he contacted Kellems, a lawyer, about changes he wanted to be made in his will. He sent Kellems handwritten notes with the changes, including a document that included the language, “The Will of April 23rd 2011 … has been destroyed and March 23, 1993 [sic].” It is undisputed that the notes were in Louis’s handwriting.

Louis died on June 8, 2011, and Louis’s widow, Donis, contacted one of Louis’s lawyers, who sent her the notes described above. Donis gave the notes to her son, David Lambert, Louis’s step-son, who read them and passed them on to Holmes, an attorney he had hired to open Louis’s estate. On August 19, 2011, a sworn petition was filed, with Louis’s will attached, alleging that the original had been lost and that the will had not been destroyed by Louis with intent to revoke it. The handwritten notes were not attached to the petition.

Both of Louis’s biological son, Curt, and daughter, Sammi, filed contests to probate of the will. It was not until around a year after the petition had been filed that they found out, in the course of discovery, about the handwritten notes revoking the prior will(s). Sammi filed for summary judgment and sanctions under MRCP 11 and the Litigation Accountability Act. The chancellor granted summary judgment, but declined to impose sanctions.

Sammi and Curt appealed the denial of sanctions.

In the case of Estate of Pannagl: Pannagl and Spence v. Lambert and Holmes, the COA on November 4, 2014, reversed. Since this case makes some important points about sanctionable behavior and the applicable law, I am quoting at length:

¶7. In this appeal, Curt contends that Lambert’s failure to include the document in this petition constituted fraud; thus, the chancellor erred in failing to award sanctions. Curt argues that Lambert, having read the handwritten document prior to filing his petition, knew the will had been destroyed with an intent to revoke it and, therefore, had no hope of success. According to Curt, the action was frivolous and constituted a fraud on the court because Lambert withheld the document and filed a sworn petition alleging that the original will was lost and not destroyed by Louis with the intent to revoke it.

¶8. Mississippi Rule of Civil Procedure 11(b) states, in pertinent part:

If any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay, the court may order such a party, or his attorney, or both, to pay to the opposing party or parties the reasonable expenses incurred by such other parties and by their attorneys, including reasonable attorneys’ fees.

M.R.C.P. 11(b). The Litigation Accountability Act states, in pertinent part:

Except as otherwise provided in this chapter, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney’s fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification . . . .

Miss. Code Ann. § 11-55-5(1) (Rev. 2012). The phrase “without substantial justification” is defined by the Act as a filing that is “frivolous, groundless in fact or in law, or vexatious, as determined by the court.” Miss. Code Ann. § 11-55-3(a) (Rev. 2012). “The term ‘frivolous’ as used in this section takes the same definition as it does under Rule 11: a claim or defense made ‘without hope of success.’” In re Spencer, 985 So. 2d at 338 (¶26) (quotations omitted). “A plaintiff’s belief alone will not garner a ‘hope of success’ where a claim has no basis in fact.” Foster v. Ross, 804 So. 2d 1018, 1024 (¶21) (Miss. 2002) (quotations omitted). Whether a party has any “hope of success” is an objective standard to be analyzed from the vantage point of a reasonable plaintiff at the time the complaint was filed. Tricon Metals & Servs. Inc. v. Topp, 537 So. 2d 1331, 1335 (Miss. 1989).

¶9. The chancellor found the following: (1) it was unclear whether the will had been revoked or if Louis merely contemplated doing so; (2) more information was required to determine Louis’s intent; (3) the handwritten document was insufficient to put a proponent of a will having minor children as beneficiaries on notice that it had been revoked; (4) the handwritten document was not subscribed, but merely signed at the top, and the various copies of the document contained different-color ink; and (5) tendering a copy of Louis’s will was not so egregious as to warrant the imposition of sanctions against Lambert and Holmes.

¶10. The Mississippi Supreme Court has found that a misrepresentation of pertinent facts to a chancellor, who entered an order based on the misrepresentations, was a violation of the Litigation Accountability Act and Rule 11 of the Mississippi Rules of Civil Procedure and warranted sanctions. In re Estate of Ladner, 909 So. 2d 1051, 1056 (¶17) (Miss. 2004). In that case, an executor and his attorney failed to inform the court of the testator’s brother’s claim to ownership of cattle located on the brother’s land prior to obtaining a court order to seize the cattle. Id. at 1055-56 (¶¶15-16). In addition, this Court has found that a verified creditor’s notice of claim, filed by the counsel of a creditor of potential heirs of a decedent’s estate and containing a misrepresentation of pertinent facts, was frivolous. In re Necaise, 126 So. 3d 49, 57 (¶30) (Miss. App. Ct. 2013). This Court found that the misrepresentation caused the estate to incur unnecessary attorney’s fees in having to respond to those filings and thus warranted sanctions under Rule 11 and the Litigation Accountability Act. Id.

¶11. In this case, Lambert failed to disclose the existence of the handwritten document when he filed his petition. A reasonable person in Lambert’s position, with Lambert’s knowledge, would have no hope of success in rebutting the presumption that Louis’s will had been lost and not destroyed. Lambert admitted that, when he filed his petition, he had received and read the documents attached to Carrigee’s letter, which included the handwritten document. This letter, with attachments, was later given to Holmes prior to filing this action. In that document, Louis listed a myriad of changes he wanted to make to his will. At the bottom of the first column of the two-column document, he wrote: “The will of April 23rd 2001 Brookhaven/Brady Kellems has been destroyed.” The words “and March 23, 1993,” were written in a different-color ink on Kellems’s copy. The document was signed by Louis, and Donis testified that the document was in his handwriting. Lambert searched for a will, but could not find one. The file folder in Louis’s office entitled “will” was empty.

¶12. From this document, it is clear that Louis wanted to make changes to his will and that he intended to revoke all prior wills. Even though Louis signed this document at the top of the page, Donis testified that it was his handwriting. When taken in context, the statement that: “The will of April 23rd 2001 Brookhaven/Brady Kellems has been destroyed,” effectively put Lambert and his attorney on notice that Louis destroyed his will with the intent to revoke it. This is evidenced by Lambert’s attempt to convert the proceedings to that of intestate succession. On the same day that the court ruled on a motion to compel Kellems to give his deposition, and prior to any other depositions being taken, Lambert filed a motion to amend his petition. He sought a declaration that Louis had died intestate and asked the court to appoint Donis the administrator. The handwritten document had not yet come to light, and judging from the timing of the motion’s filing, Holmes knew that once it did, there would be no hope of success in overcoming the presumption. In the hearing on the motion for summary judgment, Holmes admitted that he filed that motion because he did not think he could overcome the presumption that Louis’s will had been lost and not destroyed.

¶13. The chancellor did not consider the fact of nondisclosure to be important when making her decision about whether to award sanctions. But the fact remains that the nondisclosure was a misrepresentation, making the petition to probate the will frivolous in light of the evidence. The chancellor abused her discretion in not considering Lambert’s nondisclosure in determining the frivolity of the action. Curt incurred unnecessary expense in contesting the probate of this will, only to uncover a document that Lambert withheld for almost a year and a half and that would later serve as the basis for summary judgment.

¶14. Finding that the chancellor abused her discretion in deciding not to award sanctions pursuant to Rule 11 and the Litigation Accountability Act, we reverse and remand for a determination of attorney’s fees and costs.

So the shortcoming here was the failure to disclose the handwritten notes. Hindsight, which is always high-def, tells us that the better practice would have been to disclose the notes and leave it up to the chancellor, as finder of fact, to interpret them. By not disclosing the notes, Lambert and counsel gave the reasonable impression that they were trying to hide something to change a possible adverse outcome. That’s always a recipe for sanctions and even discipline.

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