IF YOU EXPECT TO REAP, YOU HAVE TO SOW (AND SOMETIMES YOU REAP WHAT YOU DIDN’T KNOW YOU SOWED)

September 12, 2011 § 2 Comments

Riff Raff:  I ask for nothing, Master!

Frank:  And you shall receive it, IN ABUNDANCE!

— From The Rocky Horror Picture Show

In chancery court, be careful what you ask for — or don’t ask for. What and how you plead can make a big difference in your outcome.

Take the case of Caudill v. Caudill, 811 So.2d 407, 408-9 (Miss. App. 2001), in which Douglas, acting pro se, filed a response to a contempt petition raising his inability to pay as a defense. When Douglas tried to argue at trial that his pleading was sufficient to support a reduction in separate maintenance, the chancellor rejected his claim on the basis that “there is no petition to relieve you of paying …” and that he “needed to have filed a counterclaim asking for affirmative relief.”  Douglas appealed, pointing out that pro se litigants are held to a less stringent standard of pleading than are lawyers. McFadden v. State, 580 So.2d 1210, 1214 (Miss. 1991). Citing West v. Combs, 642 So.2d 917 (Miss. 1994), Douglas argued that the trial judge should have looked to the substance of his pleading rather than its form.

The COA rejected Douglas’s argument and upheld the chancellor:

“While it is true that a pro se litigant may not be held to the same standard in drafting his pleadings as an attorney, the chancellor is not held to the task of a mind reader. If the chancellor is not able to determine a request for relief from the pleadings, he may not grant such relief. Douglas did not make a specific request for a reduction in separate maintenance and did not amend his pleadings to include such a request. The chancellor did not abuse his discretion or commit manifest error in refusing to consider Douglas’s pro se answer as a counterclaim for a reduction in his obligation.”

MORALS:

  1. If you don’t include a request for specific relief in your pleadings, don’t expect to get it.
  2. Chancellors (thankfully) are not expected by the appellate courts to be mind readers — at least in the realm of pleadings.
  3. This case involved a pro se litigant; you, as a lawyer, are held to a higher standard.
  4. If you do overlook pleading for certain relief, try putting on proof on the point anyway, and, if you do put in the proof you need, ask the court for leave to amend the pleadings and conform the pleadings to the proof. If the other lawyer blocks your attempts, as for leave to amend per MRCP 15.
  5. If you ask for nothing, you shall receive nothing — in abundance.

In the recent case of Knighten v. Hooper, decided September 6, 2011, the COA upheld the chancellor’s decision not to award the child dependency tax exemption on the basis that the issue was not raised in the pleadings. Both parties had, at the court’s behest, presented proposed findings of fact and conclusions of law, and Knighten had inserted the issue for the first time in his submission. There had been no proof on the point at trial.  The COA held at ¶ 16:

“After reviewing the pleadings and trial transcript, we find that Knighten did not properly raise the issue through his pleadings or evidence presented at trial. See MRCP 8, 15. As a result, Hooper was not given notice and an opportunity to respond. The issue was not subjected to the adversarial process and, as such, was not properly before the chancellor for consideration. Therefore, the chancellor did not err when she refused to address the issue in her judgment.”

While we are on the subject, keep in mind that once a pre-trial order is entered, it controls and determines the issues and relief, no matter what was in the original pleadings. In Singley v. Singley, 846 So.2d 1004 (Miss. 2002), the trial judge allowed in proof supportng a claim for alimony over objection on the basis that, although alimony had been omitted from the pre-trial order, it had been pled for in the original pleadings. The COA reversed, and the MSSC, in upholding the COA, stated, at page 1013:

“”The pre-trial statement approved by order of the chancellor controls. It is clear and concise, easily understood and substantially complies with M.R.C.P. 16. We hold that the chancellor cannot modify the statement unless it is done by mutual agreement with the parties as was initially done, or the chancellor finds manifest injustice, neither of which occurred. The Court of Appeals is affirmed on this issue.”

As it is true that you may not receive something for which you have not pled, the converse is true: that you may receive something for which you pled, but did not exactly foresee.

Take, for instance, the case of Rose v. Upshaw, handed down by the COA on August 30, 2011. In that case, Rose registered a Louisiana judgment in Mississippi, and asked the chancery court to severly restrict Upshaw’s visitation under the Louisina judgment. Instead, the chancellor found that the visitation provisions of the Louisiana judgment were not working, and modified the visitation in Upshaw’s favor. Rose appealed, contending that it was improper for the chancellor to grant any modification relief other than the restricted visitation he had prayed for. The COA disagreed:

Rose essentially argues, since he was the one to plead modification, the chancellor could only modify the visitation order to meet Rose’s specific request that Upshaw’s visitation be restricted. But, procedurally, the chancellor was not limited to granting all-or-nothing relief — either enforcement of the unmodified Louisiana order or restriction of Upshaw’s visitation rights. “On visitation issues, as with other issues concerning children, the chancery court enjoys a large amount of discretion in making its determination of what is in the nest interest of the child.”  Haddon v. Haddon, 806 So.2d 1017, 1020 (¶ 12) (Miss. 2000)(citing Harrell v. Harrell, 231 So.2d 793, 797 (Miss. 1970).

So there you have it. Two general principles of pleading that you need to bear in mind:

  1. If your pleading does not include a clear request for relief that a chancellor can comprehend, you can’t expect to receive that relief; and
  2. Be careful of the issues you introduce into the proceedings because that whipsaw effect can sting.

NO UCCJEA ALLEGATIONS = NO JURISDICTION? NO.

August 18, 2011 § 3 Comments

Lawyers are all over the ballpark when it comes to the UCCJEA allegations required by MCA § 93-27-209. Some still use the old and now-repealed UCCJA provisions that have apparently fossilized in their computers. Some omit them entirely. Some use a hybrid. And some even plead the proper provisions.

What happens when you fail to plead the UCCJEA provisions either completely or inadequately? Does the court have jurisdiction?

The MSSC answered the question in White v. White, 26 So.3d 342, 346 (Miss. 2010), where the court said:

First, the chancery court’s jurisdiction is set by the Mississippi Constitution, and cannot be diminished by statute. See Miss. Const. art. VI, § 159. Second, the plain language of Section 93-27-209(2) provides that, in the event the required disclosures are not filed, the court may stay the proceeding.

This issue is not jurisdictional, was within the sound discretion of the chancellor, and this argument is without merit.

The court rejected the appellant’s reliance on Marr v. Adair, 841 So.2d 1195, 1202 (Miss. App. 2003), because that case was decided under the repealed UCCJA.

Remember that under White, although the recitation of the jurisdictional language is not mandatory for the court to exercise jurisdiction, you still have to prove that the court has jurisdiction under the UCCJEA. When the MSSC said that “This issue is not jurisdictional,” it was referring to the matter at hand, which was the sufficiency of the pleadings, and not to the substance of jurisdiction in the case. It’s an important distinction. See, Miller v. Mills, decided by the COA May 3, 2011; you can read a post about the case here.

I have had lawyers move to dismiss at the outset of trial for incomplete or missing UCCJEA affidavit. I always overrule that motion and offer a continuance for the purpose of filing one, but I’ve never had anyone take me up on it.

WHAT DOES IT TAKE TO SATISFY THE DILIGENT INQUIRY REQUIREMENT OF MRCP 4?

August 16, 2011 § 2 Comments

We’ve talked here, here and here about MRCP 4 and its requirements for obtaining process by publication. The prerequisite to any process by publication is “diligent inquiry” to discover whether the party is to be found in Mississippi, and, if not, her post office address.

No process by publication can issue until there is an affidavit filed stating that diligent inquiry has been made. The one who claims to have made the inquiry is required to testify to the efforts involved. It is in the court’s discretion to determine whether the inquiry was indeed diligent.

So what exactly is diligent inquiry? To what extent is a party required to search out the whereabouts of the opposing party? I will confess to a certain degree of inconsistency on this issue on my part, due primarily to the fact that in Mississippi we do not have a template of authority or guidelines to go by. I do always question the witness about measures taken, and I am usually satisfied that he or she has done all that can be done.

Recently, it came to my attention that Florida has a form certificate of diligent inquiry that is required in all such cases. The affiant must check all of the categories of effort that apply. Here are the guts of the Florida certificate:

  • United States Post Office inquiry through Freedom of Information Act for current address or any relocations.
  • Last known employment of respondent, including name and address of employer. You should also ask for any addresses to which W-2 Forms were mailed, and, if a pension or profit-sharing plan exists, then for any addresses to which any pension or plan payment is and/or has been mailed.
  • Unions from which respondent may have worked or that governed particular trade or craft.
  • Regulatory agencies, including professional or occupational licensing.
  • Names and addresses of relatives and contacts with those relatives, and inquiry as to respondent’s last known address. You are to follow up any leads of any addresses where respondent may have moved. Relatives include, but are not limited to: parents, brothers, sisters, aunts, uncles, cousins, nieces, nephews, grandparents, great-grandparents, former in-laws, stepparents, stepchildren.
  • Information about the respondent’s possible death and, if dead, the date and location of the death.
  • Telephone listings in the last known locations of respondent’s residence.
  • Internet at http://www.switchboard.com or other internet people finder.
  • Law enforcement arrest and/or criminal records in the last known residential area of respondent.
  • Highway Patrol records in the state of respondent’s last known address.
  • Department of Motor Vehicle records in the state of respondent’s last known address.
  • Department of Corrections records in the state of respondent’s last known address.
  • Title IV-D (child support enforcement) agency records in the state of respondent’s last known address.
  • Hospitals in the last known area of respondent’s residence.
  • Utility companies, which include water, sewer, cable TV, and electric, in the last known area of respondent’s residence.
  • Letters to the Armed Forces of the U.S. and their response as to whether or not there is any information about respondent.

Some of these measures seem somewhat extravagant to me; a Freedom of Information Act request, for example, seems a bit much. Certain other listed measures would be futile due to privacy and HIPAA concerns, in my opinion.

The list, though, does have much to commend it in that it illustrates the extent of information available to find someone. In the era of internet, with Google and the like, the old “I asked his momma and she doesn’t know where he is” just doesn’t cut it anymore. The more extensive the search, the more different measures employed, the more likely it is that the court will find the effort to have been diligent.

I heard an uncontested divorce a while back in which the plaintiff had published process based on a claim that she did not know where the defendant was, and was not to be found in Mississippi. She testified about all the relatives she had talked to who claimed not to know where he was, either. In the course of her testimony, she let slip that the last she had known he was in prison in Texas. I interrupted and asked how long his prison term was, and she responded that he should still be there because he had been sentenced to something like 20 years. I pointed out to the attorney that of all people on the planet a prisoner should be among the easiest to locate, and I continued the hearing to a later date for that purpose. The attorney easily located the man on the internet, and she and her client returned to court a couple of months later and proceeded on personal process. 

My suggestion is that you don’t file that diligent inquiry affidavit unless and until you are satisfied that your client has, indeed, made a bona fide effort to locate the other party. You may wind up doing some of the work yourself.

PLEADING THAT WHICH MUST BE PLED

July 26, 2011 § 2 Comments

If you will read the statutes that apply in your case, you will find exactly the language you need to plead a proper claim and lay out jurisdiction and venue. It’s right there in the code. The closer you adhere to the statutory language, the more likely it is that your complaint will withstand an MRCP 12(b)(6) motion.

For example, in a divorce case, you must plead all of the following: either one or more grounds set out in MCA §93-5-1, and/or irreconcilable differences as in MCA § 93-5-2; and proper venue as in MCA § 93-5-11; and that one of the parties meets the residence requirement of MCA § 93-5-5. All of the language you need to do that is right there in the statutes for your penalty-free plagiarization.

As a side note, many older chancellors through the years required the complaint to quote the language of the residency statute for divorce that, ” … [plaintiff] has been an actual bona fide resident within this state for six (6) months next preceding the commencement of this suit.” If you varied by a single word, you had pled yourself out of court. There may still be chancellors adhering to that practice. Whether your chancellor does or not, you can’t go wrong tracking the language of the statute.

Some lawyers copy other lawyers’ pleadings. That’s fine as long as the copied pleadings are adequate. Several years ago a few new lawyers used pleadings filed by a weathered, older lawyer as their template. You could tell because they slavishly replicated the older lawyer’s misstatement that “Plaintiff is entitled to a divorce from the defendant on the ground of habitual cruel and inhuman treatment as codiciled in Section 93-5-1, MCA.” If you’re going to copy, at least put some thought into what you’re doing.

The MRCP offer another source of pleading material. For instance, if you will read Rule 57, you will find every word you need to plead to obtain a declaratory judgment. Same with Rule 56 summary judgment. Same with Rule 65 for temporary restraining orders, temporary injunctions, and preliminary and permanent injunctions.

In modification of custody cases, you will be out of court on your ear unless you plead specifically in your petition that (1) there has been a material change in circumstances that (2) is having or has had an adverse effect on the minor child(ren), and (3) that it is in the best interest of the child(ren) to change custody to your client. McMurry v. Sadler, 846 So.2d 240, 243-4 (Miss. App. 2002). Note that in McMurry, the petitioner had pled only a material change justifying modification. The respondent moved to dismiss for failure to state a claim at the outset of trial, and the judge even prompted counsel that the word “adverse” was absent. The judge dismissed the pleading with leave to amend, and counsel for petitioner moved ore tenus to amend to add the language that an adverse effect would occur if modification were not granted. At that point, the chancellor found the pleadings insufficient as a matter of law and dismissed with prejudice. The COA affirmed.

As McMurry illustrates, faulty pleading will cause nothing but trouble. And it can be fatal. Look what happened there: the judge granted leave to amend as is prescribed in MRCP 12(b), but when counsel failed to fix the problem by amendment, the judge took the case off of the respirator and it died.

What if counsel for the respondent had said nothing about the adequacy of the pleadings before trial, but then had objected to every question about any adverse effect on the basis that it had not been pled? I saw that on more than one occasion when I was in practice, and the judge always sustained the objections, effectively gutting the petitioner’s case, or, more accurately, letting it gut itself. If you’re in that situation and you’re not too discombulated to think clearly, you might try making a Rule 15 motion for leave to amend. Maybe the judge will let you off the hook. At least you will have it in the record.

A COMPENDIUM OF ESTATE POSTS

July 5, 2011 § 6 Comments

PERILS OF PROCESS BY PUBLICATION, EPISODE THREE

June 27, 2011 § 9 Comments

You can read here and here some of the snares in MRCP 4 that can snap painfully on the unwary.  Unwary = those who don’t bother to read the rules.

MRCP 4 publication claimed its latest victim on June 14, 2011, in the COA case of Turner v. Deutsche Bank.  In that case, the bank filed a judicial foreclosure and published process to Angela Turner.  The original complaint recited Angela’s address, and the bank duly sent its process server there, only to discover that she had moved, whereabouts unknown.  At that point, without amending its pleadings or filing an affidavit of diligent inquiry, Deutsche published process and a chancellor signed a default judgment finding, among other things, that the court had jurisdiction.

Angela awoke to what had happened and filed an MRCP 60 motion to set aside the judgment, and the original chancellor recused herself.  Her successor overruled Angela’s motion in part because the court had already ruled that it had jurisdiction.

The court of appeals reversed and remanded.  Here are some pertinent excerpts from the decision:

  • “Deutsche Bank attempted to serve Turner by publication under Rule 4(c)(4), which provides for situations where the defendant cannot be found within the state. Publication of the summons must be made once a week for three consecutive weeks in the public newspaper of the county if one exists, as in our case. M.R.C.P. 4(c)(4)(B). But service by this method is only permitted “[i]f the defendant . . . be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry.” M.R.C.P. 4(c)(4)(A).”
  • “¶10. The affidavit or sworn complaint must also state the defendant’s post-office address, if known, or swear that it could not be determined after a diligent inquiry. Id. If the postoffice address is listed, the sworn petition or affidavit must further provide the defendant’s street address or that it could not be determined after a diligent inquiry. M.R.C.P. 4(c)(4)(B). And if the plaintiff provides a post-office address, the clerk must mail the defendant (by firstclass mail, postage pre-paid) a copy of the summons and complaint to his post-office address, and note having done so on the general docket. M.R.C.P. 4(c)(4)(C). “
  • “¶12. The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (¶16) (Miss. Ct. App. 2002) (internal citation omitted). Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So. 2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759 So. 2d at 1257 (¶33). [Emphasis added]
  • “¶13. In Kolikas, we found a chancellor erred in failing to set aside a divorce decree, where the plaintiff attempted service by publication without strictly complying with the requirements of Rule 4(c)(4). Kolikas, 821 So. 2d at 879 (¶32). We observed that a defendant is “under no obligation to notice what is going on in a cause in court against him, unless the court has gotten jurisdiction of him in some manner recognized by law.” Id. at 878 (¶17).”  [Emphasis added]
  • In the petition or affidavit, the plaintiff must certify to the court, among other things, that the defendant is a nonresident or cannot be found in Mississippi.
  • This conclusion is supported by the supreme court’s decision in Caldwell v. Caldwell, 533 So. 2d at 415. There, the supreme court noted that Rule 4(c)(4)(A) was substantially the same as the statute in place before the adoption of the Mississippi Rules of Civil Procedure. Id. The Caldwell court found instructive and quoted favorably a pre-rules treatise’s comment that “[a]n affidavit to support process by publication must strictly comply with the statute and if it omit[s] averment of diligent inquiry it is insufficient.” Id. at 416 (quoting Griffith, Mississippi Chancery Practice , Bobbs-Merrill Company, Inc. 225-27 (1925)). And “where notice by publication is resorted to . . . as a basis for the jurisdiction of the court, in lieu of personal summons[,] all the requirements of the statute as to such notice must be strictly complied with[.]” Id. at 415 (emphasis added). Rule 4(c)(4)(A) is equally clear that the plaintiff must attest that he has performed a diligent inquiry before performing service by publication. It is no less true today that a sworn averment of diligent inquiry must be made to effectuate proper service by publication. “[Emphasis added]
  • “Rule 60(b) provides that the court may relieve a party from a final judgment if one of the stated conditions is met. One such condition exists where “the judgment is void.” M.R.C.P. 60(b)(4). Our supreme court has held that “[a] court must have . . . proper service of process . . . in order to enter a default judgment against a party. Otherwise, the default judgment is void.” McCain v. Dauzat, 791 So. 2d 839, 842 (¶7) (Miss. 2001) (internal citation omitted). Although “[t]he grant or denial of a 60(b) motion is generally within the discretion of the trial court, . . . [i]f the judgment is void, the trial court has no discretion.”

So here’s what you need to take away from this case:

First, if you’re going to obtain process by publication, you are going to have to comply with every technical requirement of MRCP 4(c)(4).  The rule is to be strictly construed.

Second, if you have not been able to discover the whereabouts of the other party for service of process, you must file your affidavit of diligent inquiry before you publish. Filing it later will not work.

Third, if you do not comply strictly with the rule, your judgment will be void and subject to being set aside. In other words, you client will have paid you for accomplishing nothing, and maybe even for putting him in a worse position. That usually makes a client peeved enough to sue somebody.

This is yet another in a long list of decisions that would have had an entirely different outcome if counsel had simply taken a few minutes to read the rule and do what it says.

PARING DOWN YOUR LEGAL PROSE

June 23, 2011 § 2 Comments

The importance of being Ernest

Nobel Prize-winning author Ernest Hemingway worked as a reporter for the Kansas City Star newspaper in 1917.  The sparse, compact language of journalism proved to be ideally suited to his writing skills, and he adopted it as his style.  The minimalist prose that resulted became his trademark.

Here are excerpts from the paper’s style sheet:

  • Use short sentences. Use short first paragraphs. Use vigorous English. Be positive, not negative.
  • Eliminate every superfluous word, as “Funeral services will be at 2 o’clock Tuesday,” not “The funeral services will be held at the hour of 2 o’clock on Tuesday.” “He said” is better than “He said in the course of conversation.”
  • Avoid the use of adjectives, especially such extravagant ones as “splendid,” “gorgeous,” “grand,” “magnificent,” etc.
  • Be careful of the word “also.” It usually modifies the word it follows closest. “He, also, went” means “He, too, went.” “He went also” means he went in addition to taking some other action.
  • Be careful of the word “only.” “He only had $10″ means he alone was the possessor of such wealth; “He had only $10″ means the ten was all the cash he possessed.
  • A long quotation without introducing the speaker makes a poor lead especially and is bad at any time. Break into the quotation as soon as you can, thus: “‘I should prefer,’ the speaker said, ‘to let the reader know who I am as soon as possible.’”

“Those were the best rules I ever learned for the business of writing,” Hemingway told a reporter in 1940. “I’ve never forgotten them. No man with any talent, who feels and writes truly about the thing he is trying to say, can fail to write well if he abides with them.”

There’s something for lawyers to chew on here. Is your writing clear, concise and direct? Does it make your point in the first sentence, or in the first few words, or do you make the reader meander through prolix piles of prose? Does it read like nineteenth-century legal jargon, or does it state your client’s position in easily comprehensible language?

Take a few minutes to read your pleadings. Take a few minutes to review your motions and briefs. Does your writing do the job for your client, or does it get in the way?

When a judge reads your pleadings, motions or briefs, can he or she get right to the point, or does it take laborious digging to get there? And when the judge finally gets to the point, is it clear exactly what the point is?

Do you have a reliable style book you can pull out and check from time to time? I like Strunk and White’s Elements of Style. It’s timeless without being stuffy, and at a mere 85 pages, it’s packed with easy-to-find gems. The chapters include rules of usage, principles of composition, commonly misused expressions, matters of form, and an approach to style. There’s a lot here that is easily digestible and quite useful.

Give your writing a little thought. It’s one of your most potent tools to advance your client’s interest. And consider that muddled writing is symptomatic of muddled thought; if you can’t find a way to express it in writing, you may not be able to say it at all.

Thanks to Futility Closet for the Hemingway material.

TURNER v. ROGERS DECONSTRUCTED

June 22, 2011 § 4 Comments

By Ben McMurtray

Yesterday the United States Supreme Court handed down its decision in the case of Turner v. Rogers. The question before the court was whether a respondent in a civil contempt proceeding, namely someone who was being threatened with jail time for failure to pay child support, has a right to have counsel provided to him.  The Court held that “the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year).”  The Court went on to hold that “in particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards. . . .”

The practical effect of this ruling has actually very little to do with the right to counsel.  Instead, the focus of the courts and attorneys should be on the “alternative procedural safeguards” mentioned by the Court.  The Supreme Court identified four such safeguards in its opinion, which, if employed together, can “significantly reduce the risk of an erroneous deprivation of liberty” and therefore negate the need to appoint counsel to an indigent civil defendant.  These safeguards are:

  1. Notice to the Defendant that his “ability to pay” (the child support) is a critical issue in the contempt proceeding;
  2. The use of a form (or the equivalent) to elicit relevant financial information;
  3. An opportunity at the hearing for the defendant to respond to statements and questions about his financial status (e.g., those triggered by his responses on the form);
  4. An express finding by the court that the defendant has the ability to pay (before finding him in contempt).

This list is not inclusive of all possible safeguards that a state could employ.  In fact, the Court stated that past cases “suggest . . . that sometimes assistance other than purely legal assistance (here, say, that of a neutral social worker) can prove constitutionally sufficient.”

Turner, though, is quite limited in its scope.  The Court does not address several potential situations in this ruling, so the issue of whether counsel should be provided to indigent civil defendants is far from dead.  The Court did not say whether counsel should be provided when the party seeking the child support is represented by an attorney.  Instead, it was quite careful to limit the opinion to cases where the person seeking the child support was also represented pro se.  Furthermore, the Court explicitly held that this opinion does “not address civil contempt proceedings where the underlying child support payment is owed to the State, for example, for reimbursement of welfare funds paid to the parent with custody.”   Also, the Court did not address what due process requires in an “unusually complex” case where a defendant “can fairly be represented only by a trained advocate.”  In each of these instances, the holding suggests that the Court would be far more likely to hold that an attorney must be provided to an indigent civil defendant if the other side is represented by counsel.

So how does Turner v. Rogers affect one’s practice?  When a defendant is served with process in a child support action, just include something telling him that his ability to pay is an issue at the hearing.  Go ahead and attach some kind of a financial disclosure form too so that the court has all the information it needs to determine if the defendant is able to pay.  Make sure the defendant has a chance to talk about his financial statement and any testimony deriving therefrom during his hearing.  Finally if the court finds him in contempt, ensure that the judge makes a finding that the defendant has the ability to pay.

[Ben McMurtray is an Ole Miss law student who served as an intern in the 12th District this summer. His internship has involved learning about the inner workings of the courts, how lawyers operate out here in the real world, and how different judges handle things. He has observed trials, docket calls, motion hearings, chamber conferences and probate matters in Lauderdale and Clarke Counties, and he has sat in with Judge Clark in Scott County and Judge Fenwick in Neshoba. He even sat at defense counsel’s table in a rape trial in Lauderdale Circuit in which the defendant was acquitted. He observed an adjudicatory hearing in Lauderdale Youth Court. He has helped inventory the probate docket in Clarke County. This is his last week, and we will miss him when he is gone, but we wish him the best in the rest of law school and his legal career.]

THE SMELL TEST: YOU’LL KNOW IT WHEN YOU SEE IT

June 16, 2011 § Leave a comment

Sometimes you know something ain’t right.  It doesn’t pass the smell test.

Or, as US Supreme Court Justice Potter Stewart opined, famously employing a different sense when attempting to define obscenity:  “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it …”  Jacobellis v. Ohio, 378 US 184, 197 (1964).

Returning to the olfactory realm, we encounter the fetid aroma of impropriety in chancery proceedings now and then.  Parties conceal assets from one another, warring child custodians grab a child and run and then lie about the whereabouts, witnesses lie under oath, 8.05 statements just don’t add up, et cetera and so on.

But is it fraud?

A finding of fraud opens the defrauded party to all manner of equitable relief.  Before you set out to claim fraud, though, there are some things you need to know.

The Elements of Fraud

The elements of fraud, which must be proven by clear and convincing evidence:

  1. A representation;
  2. its falsity;
  3. its materiality;
  4. the speaker’s knowledge of its falsity or ignorance of its truth;
  5. the speaker’s intent that it should be acted on by the person and in the manner reasonably contemplated;
  6. the hearer’s ignorance of its falsity;
  7. the hearer’s reliance on its truth;
  8. the hearer’s right to rely thereon; and
  9. the hearer’s consequent and proximate injury.

In re Estate of Law, 869 So.2d 1027, 1029 (Miss. 2004), citing Levens v. Campbell, 733 So.2d 753, 761-62 (Miss.1999). See also Spragins v. Sunburst Bank, 605 So.2d 777 (Miss.1992); Martin v. Winfield, 455 So.2d 762 (Miss.1984)

 Pleading Requirements

MRCP 9(b) states: “In all averments of fraud or mistake, the circumstances constituting the fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person may be averred generally.” The comment is worth reading.

A party is not entitled to relief on the basis of fraud where the complaint fails to state the circumstances constituting fraud with particularity and the parties did not try the issue by consent. Brown v. Chapman, 809 So.2d 772, 774 (Miss. App. 2002).

Fraud cannot be inferred, presumed, or charged in general terms. The specific acts of fraud must be definitely averred. Nichols v. Tri-State Brick and Tile Co., Inc., 608 So.2d 324, 331 (Miss. 1992).

This is important:  If a finding of fraud is important to your client’s case, you must plead it, identifying the specific acts you claim are fraud, and specifying for each the acts complained of.  The other party may challenge the sufficiency of your pleadings using MRCP 12(b), but if she does, the court is required to give you an opportunity to amend.  What if the other party creates a nightmare scenario for you by not going the 12(b) route and simply waiting for trial, then objecting right and left to any proof you offer of fraud, moving ultimately to dismiss for failure to plead properly?

The Badges of Fraud

The Mississippi courts have recognized ten “badges of fraud” that a court may use to consider in making a determination whether a party’s intent was fraudulent:

  1. Inadequate consideration for the transfer.
  2. Conduct out of the ordinary course of business.
  3. An absolute conveyance as security for a loan.
  4. Secrecy.
  5. The transferor’s insolvency.
  6. A transfer of all the transferor’s property.
  7. Retention of possession by the grantor.
  8. Failure to list the property covered by the conveyance.
  9. The relationship between the transferor and the transferee.
  10. Whether the transfer was to someone with no apparent use for the property.

A&L, Inc. v. Grantham, 747 So.2d 832, 843 (Miss. 1999).

OMG, FYI IT’S IN THE OED, LOL! I ♥ IT! OOPS, TMI?

March 29, 2011 § 2 Comments

If anyone has a legitimate claim over authority to have the last word, it’s got to be the Oxford English Dictionary, aka the OED to English word afficianados everywhere. The OED is recognized as being the authoritative source for what is and is not an actual English word (as any accomplished Scrabble fan can tell you).

When one thinks dictionary, however, one may think stuffy, hidebound, behind the times, snooty, pompous.  After all, dictionariologists are ivory-tower academicians far removed from the slangy stew that we here in the real world actually speak, right?

Au contraire, mon frère (as George Carlin used to say).  The OED is updated almost continuously, as I recently discovered.  You can read updates weekly.  Yes, weekly.  Here is the latest update page; check it out for yourself.

It seems that the OED, in its never-ending quest to remain both authoritative and relevant is constantly prowling around, sniffing through pop culture and its detritus, detecting newly acceptable entrants into our ever-expanding language.

This particular update includes newly-recognized words (really initialisms): OMG (Oh my God, or gosh or goodness), LOL (laughing out loud), FYI (For your info), IMHO (in my humble opinion), TMI (too much info) and BFF (best friends forever), all from the internet.  And here’s a stunning addition: ♥, as in “I♥NY.”

A few other neologisms of interest:  La-La land; non-dom (non-domiciled); fabless (great word meaning the opposite of fabulous); muffin top (as in waistline flab); dotted line (think organizational chart, not legal document); happy camper; and lumpenintelligentsia (faux German for what I am not sure).  There are others.

I am bringing these to your attention for the possibilities they open to spice up your appellate briefs and pleadings.  Imagine what this new infusion of vocabalury would add to even the most prosaic pleadings.  Take, for example, this paragraph of an Answer to a Complaint for Divorce:

In answer to Paragraph 6 charging him with habitual cruel and inhuman treatment, defendant can only say OMG, she must have been in la-la land when she dreamed that up!  FYI the defendant has never manhandled or even been rude to plaintiff, except for one heated argument about whether or not she had developed a muffin-top.  Affirmatively, defendant would show that he is not a happy camper due to these charges, even though the relationship was pretty much fabless, defendant has nonethess ♥’d the plaintiff with all his ♥ and truly believed that he and the plaintiff were BFF.  He also objects to this airing of the parties’ private business in these pleadings and resulting discovery as TMI.

How could any court frown on such a masterpiece of the language, bearing as it does the stamp of approval of the esteemed OED?

The possibilities appear endless, what with regular updates that literally ladle scoops of delicious new words onto your plate every week.

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