MAKING SURE YOUR ADOPTION FLIES

March 21, 2011 § Leave a comment

Momma, daddy, baby, grandma and grandpa, Aunt JoAnn and Uncle Billy are all assembled expectantly with their digital cameras and mylar baloon bouquets awaiting that happy moment when the judge signs the adoption papers.  Their party is deflated, though, when you glumly emerge from the judge’s office and report that there are still some papers you need to get straight before the judge will affix his signature.  Hopes dashed, disappointments piqued, and disgruntled clients. 

Adoptions are technical.  Not the sort of thing you slap together and slide through with little thought.

Here are some tips to make your adoptions succesful:

  • Plead proper residence jurisdiction.  MCA § 93-17-3 was amended almost four years ago to require six months’ residency, yet we still have lawyers pleading 90 days’ residency. Change your forms.
  • Plead venue.  § 93-17-3 sets out several scenarios for venue.  Select the one that fits your case and track the language of the statute. 
  • There is a UCCJEA-like requirement in § 93-17-3(2) and (3).  Be sure to plead what it requires about proceedings in other states. 
  • Remember that the petition must be accompanied by an affidavit of a doctor or nurse practitioner as to the child’s health, and an affidavit as to the child’s property or lack thereof.
  • § 93-17-3(4) also requires an affidavit of the petitioner(s) of all service fees charged by adoption agencies, as well as “all expenses paid … in the adoption process as of the time of filing the petition.”  I interpret this to include attorney’s fees. 
  • The petition must be sworn, per § 93-17-3(4).
  • § 93-17-5 sets out the requirements as to who must be joined, and how.  Note that § 93-17-5(2) requires that “The child shall join the petition by its next friend.”
  • Since MCA  § 93-13-13 gives any minor over the age of 14 the right to select his or her guardian, you should have the adoptive child execute a joinder, if over the age of 14. 

In this district we require a pre-adoption conference between the judge and the attorney.  The judge will review your petition and affidavits, as well as your proposed judgment, and, if everything is in order, set a date for the final adoption.  If some remedial work is needed, the judge will point out what needs to be done and send you on your way to get it done.  Do not invite your clients to be there on the off-chance that the judge might approve the paperwork.  That would defeat the purpose of the conference, and the judge has not necessarily built the extra time into his calendar to handle both the conference and the adoption.

Several other posts on adoption tips are here, here and here.

THE BEST DEFENSE IS A BOILERPLATE

March 4, 2011 § 8 Comments

boil•er•plate. n 3.  Inconsequential, formulaic or stereotypical language.

Here is the SECOND DEFENSE from a pleading styled Answer and Defenses to Complaint for Divorce filed last September in my court:

The facts having not been fully developed, the [defendant] would affirmatively plead any and all affirmative defenses as may be applicable in this action:  accord and satisfaction; antenuptial knowledge; arbitration and award; assumption of risk, condonation, connivance, contributory negligence, consent, discharge and bankruptcy, duress, estoppel, failure of consideration, failure to mitigate damages, fraud, illegality, insufficient process, insufficient service of process, injury by fellow servant, laches, lack of capacity to commit the offense, license, payment, pre-existing injuries or damages, provocation, reconciliation, recrimination, reformation, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”

Whew.  Fortunately, after a spate of such monstrosities having been filed last fall, they dropped off drastically after I threatened to require hearings on all of those defenses before any temporary hearing.  After all, don’t we need to know whether the adultery was a result of an injury by a fellow servant before we proceed?  Or was the plaintiff contributorily negligent when the defendant slipped off to the Motel 8 in Philadelphia with his paramour?  We need to know these things.  Or, I guess we need to know them because they were pled.

Some of these defenses, foreign as they are to chancery court, do stir the imagination …

  • Accord and satisfaction should be available when the defendant claims that the plaintiff should be happy with her Honda automobile.
  • Assumption of risk.  If you knew she was crazy when you married her, well …
  • Failure of consideration.  Most people are pretty inconsiderate of each other in the context of the hostility that leads up to a divorce, but should that be a defense?
  • Failure to mitigate damages.  My personal favorite.  Shifts the whole burden of blame, doesn’t it?
  • Laches.  So much for the public policy of Mississippi that encourages folks to stay in a marriage as long as possible.
  • Lack of capacity to commit the offense.  This is actually a viable defense to some marital offenses involving biological functions, but how does it apply in equitable distribution?
  • Pre-existing injuries or damages.  Another one with some wondrous possibilities.  “She hasn’t been harmed by my moving in with my girlfriend and leaving her penniless because she was already broke.”
  • Release.  As in “Please release me; let me go, I don’t love you any more?”  Nah.
  • Res Judicata.  Don’t laugh.  There are possibilities here for folks who have remarried each other after a prior divorce judgment.
  • Statute of frauds.  Since Mississippi did away with common-law marriages in 1956, this one is a long shot today.
  • Statute of limitations.  The lawyer who discovers how to make SOL apply in a divorce case will have struck gold.
  • Waiver.  “But she told me it was okay for me to go out with Doris.”

Maybe you can come up with some imaginative offensive or defensive theories of your own.  If they’re as goofy as these, though, you’d probably be better off keeping them to yourself.

COMPLYING WITH RULE 10(d), MRCP

November 30, 2010 § Leave a comment

Rule 10(d), MRCP, states “Whenever any claim or defense is founded on an account or other written instrument, a copy thereof should be attached to or filed with the pleading unless justification for its omission is stated in the pleading.”

Originally, Rule 10(d) required a copy of any writing to be attached as an exhibit to the pleading.  That requirement was removed in 2000 to conform to the Mississippi Supreme Court’s ruling in Gilchrist Machine Co. v. Ross, 493 So.2d 1288, 1292, n. 1 (Miss. 1986); see also, Edwards v. Beasley, 577 So.2d 384 (Miss. 1991); and Bryant, Inc. v. Walters, 493 So.2d 933, 938 (Miss. 1986).

So what do you need to do to avoid an evidentiary problem under Rule 10(d)?

As the comment states, ” … it remains good practice normally to attach such documents as part of a clear statement of a claim or defense,”  and the rule does specifically state that a copy should be attached unless justification for not attaching it is stated in the pleading.  The comment points out that if a foundation document is not attached to an otherwise sufficient pleading, it may be obtained through discovery.

From the cases, it appears that the documents offered at trial that were not attached would likely be admitted, unless no justification was given in the pleading and efforts to discover them were unsuccessful.

PUBLISH RIGHT OR PERISH

November 9, 2010 § 4 Comments

We’ve talked before about what you need to do when publishing process for a defendant whose post office address is known.  You can read that post here.

When you have no information about the defendant’s whereabouts, there are a couple of things you have to do before you can publish.

MRCP 4(c)(4)(A) states in part:

… if it be stated in … sworn complaint or petition that the post office address of the defendant is not known to the plaintiff or petitioner after diligent inquiry, or if the affidavit be made by another for the plaintiff or petitioner, that such post office address is unknown to the affiant after diligent inquiry and he believes it is unknown to the plaintiff or petitioner after diligent inquiry by the plaintiff or petitioner, the clerk … shall promptly prepare and publish a summons to the defendant to appear and defend the suit. 

Your first step is to send your client out into the world to make an effort to find the defendant.  Have her call his relatives and ask about where he is.  If they say the last they heard he was in Milwaukee, have your client call information in Milwaukee or look him up on the internet.  If he remarried, try to contact his later spouse or children.  Suggest she call his former employers or co-workers.  Most of these efforts will be futile, but the efforts themselves, not the success, constitute the “diligent” part of “diligent search.” 

After your client has diligently, but unsuccessfully, tried to find the defendant, prepare your pleadings including a sworn allegation in your pleading or an affidavit that the defendant’s address is unknown to your client “after diligent inquiry.”   You must include that language, or your publication will  be a nullity.

The rule says that the “clerk shall promptly prepare and publish a summons,” but it is the universal practice that the lawyer prepares the summons and gives it to the clerk to issue, and the lawyer carries it to the paper for publication.  The publication must be substantially in the form of MRCP Form 1-C.

Publication is once a week for three successive weeks in a newspaper published in the county.  The publication notice certified by the newspaper is filed in the court file by the lawyer.

The defendant has thirty days from the date of first publication within which to file a responsive pleading.

Once you get before the court, your client or the affiant will have to testify to the efforts they made to locate the defendant.  There is no case law defining the proof necessary to satisfy the diligent inquiry requirement.  In Page v. Crawford, 883 So.2d 609, 611-12 (Miss. App. 2004), the court said this:

There is no bright line rule as to how many efforts must be made by a plaintiff to locate a named defendant to satisfy the requirement of diligent inquiry.  There is also the question of balancing the quality of those inquiries with their quantity. Standing on a street corner and asking passersby if they know the defendant’s location would clearly not constitute diligence, no matter how many persons were asked in that manner. Beyond that, it becomes a matter of balancing quantity, quality and the interests of the parties.

In this case, Page did make several attempts to locate and serve Crawford within the 120-day period, searching through both telephone and utility directories and repeatedly engaging process servers. When Page finally found Crawford’s husband, he refused to accept certified letters regarding the matter. Although land records do seem like an obvious place to conduct an inquiry, Page was looking under a former name that was given at the time of the accident.

In Caldwell v. Caldwell, 533 So.2d 413 (Miss. 1988), the Mississippi Supreme Court found Mr. Caldwell’s half-hearted efforts to discover his wife’s post office address in Alaska to be insufficient, especially in view of the fact that she had family he could have contacted, but did not, to further his search.

I have refused to allow parties to go forward where it was obvious that more could have been done to locate the defendant.  In one case, the plaintiff testified that the last she heard her husband was in prison in Texas.  I pointed out to the attorney that prisoners, of all people, should be among the easiest to locate.  Sure enough, they went back to the drawing board and found him on an internet prisoner locator site.  They then got personal process on him and were able to proceed with an uncontested divorce.    

The purpose of MRCP 4 is to ensure that a defendant receives notice of legal proceedings against him, if at all possible, so that he has the opportunity to defend.  If the court finds that your client’s efforts fulfill that purpose, your publication process will be adequate.  Don’t take your client’s word for it that she has tried to find him and failed.  Make her go through the process of trying.

THE PROPER NAMES OF PLEADINGS

November 8, 2010 § 3 Comments

Rule 7, MRCP, states:

“There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to 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 third-party answer.”

and

“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.”

Early on, the appellate courts held that the trial courts are to look beyond the name given to the pleading by the drafting attorney to the substance of the document.  In other words, calling a counterclaim a “countercomplaint” or calling a petition a “motion” does not deprive the court of authority to act.

Still, styling a pleading incorrectly can cause confusion and may even lead the trial court into error, as it did in the case of Sanghi v. Sanghi, 759 So.2d 1250 (Miss. App. 2000).

The better practice is to use the proper nomenclature when drafting pleadings, so that your intent is clear and you can at least look like you know what you are doing.

I have looked at the rules and studied the few cases on the subject and have come to the conclusion that the following table sets out the proper names to be used for various pleadings, at least until the appellate courts give some more definitive guidance on the subject.      

Function Title of Pleading        

 Party Filing and Opposing Party        
Initiate a new lawsuit not based on a prior judgment        

  Complaint       

  Plaintiff and Defendant       
 Answer a Complaint       

  Answer       

  Defendant and Plaintiff       
 File a claim by defendant against the plaintiff       

  Counterclaim       

  Counterclaimant and Counterdefendant       
File a claim by defendant against co-defendant        

 Cross-claim        

 Cross-claimant andCross-defendant       
Initiate a lawsuit seeking modification or enforcement of existing judgment        

  Petition       

  Petitioner and Respondent       
Answer a Petition        

 Answer        

 Respondent and Petitioner        
File a claim by respondent against the petitioner        

  Counterclaim       

  Counterclaimant and Counterrespondent       
File a claim by respondent against a co-respondent        

  Cross-claim       

  Cross-claimant and cross-respondent       
 Ask the court in an already-filed action for some relief (e.g., temporary relief, compel discovery, summary judgment, etc.)       

  　　Motion　    

 　　　Movant and Respondent     

DON’T FORGET THE THIRD DEGREE IN ADULT GUARDIANSHIPS AND CONSERVATORSHIPS

October 27, 2010 § 1 Comment

Frank Lewis appeared personally in court with his attorney and joined in a request that his son be appointed his conservator.  The idea for the conservatorship arose out of some financial dealings by other members of the family who had powers of attorney.  After a hearing with no record, the Chancellor ruled that a guardian should be appointed instead, due to Frank’s physical infirmities and need for regular kidney dialysis.  The judge appointed Frank’s then attorney as guardian of his estate, and his son as guardian of the person, and cancelled the powers of attorney.

 Frank retained another attorney and appealed the Chancellor’s decision.

The Court of Appeals reversed the trial court and remanded for further proceedings, In The Matter of The Guardianship of the Estate of Frank Lewis, decided October 5, 2010. 

There are several interesting arguments made by both sides, and I commend the decision for your reading, but the issue of interest in this post is that proper notice of the hearing was not given.

There is no question that Frank Lewis was present at the hearing with his retained attorney.  Ordinarily, a party’s presence in court would submit him voluntarily to the jurisdiction of the court.  In order to establish a guardianship, however, MCA § 93-13-281 requires that the proceedings shall join as defendants two of his adult kin within the third degree by proper process, joinder or waiver.  The petition did name two adult relatives within the third degree, but there is no evidence in the record that they were properly summoned, joined, waived process or personally appeared before the court.  The court of appeals reversed and remanded to allow proper notice to two relatives within the third degree and for the court to hear evidence whether Frank does need a guardian.

The moral of the story is that guardianships and conservatorships are creatures of statute, and the statutes must be strictly complied with.  If there are two relatives within the third degree, you must join them.  If there are not two relatives within the third degree, the court is required to appoint a guardian ad litem for the infirm individual.

JUDGMENTS: PARTIAL AND FINAL

October 7, 2010 § 4 Comments

After a few weeks, the judge has issued his opinion in that thorny divorce trial.  He granted your client’s wife a divorce and gave her custody and child support, but ordered that you and the other attorney produce appraisals before he will adjudicate the equitable distribution and the alimony claim.  Your client is hopping mad at the outcome and demands that you appeal the judge’s ruling immediately.  Can you?

MRCP 54(b) provides that the when there are multiple claims for relief or multiple parties, the court may order final relief 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.”  If the court does not so direct, then any order issued that adjudicates fewer than all of the claims or rights of fewer than all of the parties, no matter whether it is entitled as a judgment, is not final, and is subject to revision at any time.

So what does this mean?  There are several ramifications.  One is that if the partial judgment or order does not specifically direct that it is final, you may not appeal from it until the entire action is finalized.  If it does include the required finality language and you do not file a timely appeal, you may find yourself shut out from an appeal on the matters addressed in that order.  Another ramification of non-finality is that the Chancellor may change it at any time, even beyond ten days after its date, because the provision of MRCP 59 that allows the Chancellor to alter his judgment within ten days of entry applies exclusively to final, appealable judgments.           

And what exactly is a judgment, anyway?  MRCP 54(a) states that “‘Judgment’ as used in these rules [MRCP] includes a final decree and any order from which an appeal lies.”  Any interlocutory adjudication is an order, and not a judgment; thus, e.g., Temporary Order, Order Compelling Discovery, Scheduling Order, Order Deeming Requests for Admission as Admitted.

A NEW WAY TO RENEW A JUDGMENT

October 6, 2010 § Leave a comment

MCA § 15-1-43, has long provided that a judgment is enforceable for seven years from the date of rendition.  The only method to extend the judgment lien beyond seven years was to file another suit to renew the judgment within the seven-year period in the couty where the original judgment was entered or where venue would otherwise be proper.  Lloyd v. Bank of the South, 796 So.2d 985 (Miss. 2001).

The legislature amended MCA § 15-1-43, effective July 1, 2010, to create a more streamlined procedure that eliminates the need for a renewal lawsuit.  H.B. 277.  It is one of several new laws that affect your Chancery practice, most of which went into effect July 1, 2010, and are listed here.

To renew a judgment under the new procedure, one files a notice with the clerk of the court that rendered the judgment.  The notice should be in substantially the following form:

NOTICE OF RENEWAL OF JUDGMENT OR DECREE

(a)  Notice is given of renewal of judgment that was rendered and filed in this action as follows:

(i)  [Date that the original judgment was filed];

(ii)  [Case number of such judgment];

(iii)  [Judgment was taken against];

(iv)  [Judgment was taken in favor of];

(v)  [Current holder of such judgment];

(vi)  [Current amount owing of such judgment].

(b)  If applicable, that a Notice of Renewal of Judgment or Decree has been previously filed with the clerk of the court on [date].

The clerk enrolls the renewal in the same manner as an original judgment, and the renewal is effective as of the date of filing with the clerk.  The right to file suit to extend a judgment continues unimpaired.

At the time of filing notice, the judgment creditor or attorney must file an affidavit setting out the name and last known post office address of the judgment debtor and judgment creditor.  The clerk shall “promptly” mail a copy of the notice to the judgment debtor at the address provided, and shall make a notation of mailing on the docket.  The notice shall include the name and address of the judgment creditor and attorney, if any.  The judgment creditor may mail a copy and proof of mailing with the clerk.  Lack of mailing by the clerk does not affect the validity of the renewal if the judgment creditor files its own proof of mailing.

The renewed judgment is enforceable for seven years from the date of filing, and may be renewed in successive terms in like manner.

TRO’S THAT WORK

September 22, 2010 § 1 Comment

There are two types of  temporary restraining orders (TRO’s):  The ones that work and the ones that fail.  Since your client is paying you to get a TRO that works, you might want to read on about how to be successful in getting this relief.

A TRO usually arises where the plaintiff claims he is entitled to more extensive injunctive relief, but needs immediate intervention of the court to prevent irreparable injury until the full claim for injunction can be heard. A TRO is, simply put, a temporary injunction issued in exceptional circumstances without notice to the opposing party or his attorney, to expire no later than ten days after its entry by the court.  It is intended to be an action to hold the parties in place until the court can have a full hearing on more comprehensive, extended injunctive relief.   

The procedure to obtain a TRO is set out in Rule 65, MRCP.  Everything you need to know about a successful TRO is there.  So pause a moment here and Read Rule 65 all the way through.  It’s not long and will take you no more than four and one-quarter minutes.  I’ll wait.  <humming to myself; checking my e-mail>

Okay, now that you’ve read the rule do you see now why you were turned down the last time you tried to get a TRO?  Yep, I thought so.

The rule is clear that if you want an injunction issued without notice, you must present a pleading to the court that meets the following requirements:

  1. It must recite specific facts by affidavit or verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the opposing party or his attorney may be heard in opposition; and
  2. The applicant’s attorney certfies in writing what efforts, if any, have been made to give notice, and reasons why notice should not be required.

Some scenarios that will fail:

  • You file the complaint on behalf of your client.  The rule requires a verified complaint or affidavit, either of which would be required to be on personal knowledge of the underlying facts by the person seeking the relief.
  • The complaint includes only conclusory statements and no facts.  The rule requires “specific facts” that support the relief sought. 
  • The harm that plaintiff seeks to avoid will likely occur in 30 days, and there is no explanation why notice for a hearing can not be given within that time.

Some judges require the personal appearance of the plaintiff or affiant to testify as to the facts set out in the complaint or affidavit.  I take the position that, since the application is required to be verified or supported by affidavit, testimony in person is not required at this stage; the only inquiry by the court is whether the application meets the requirements of the rule. 

When the TRO is entered, it is endorsed with the date and hour of issuance and is entered of record “forthwith.”  The order must define the injury and why it is adjudged to be irreparable, and state why it was granted without notice.  The order includes on its face the expiration date.

A TRO is effective for not longer than ten days, except in domestic relations cases to which the ten-day limitation does not apply.  The court may “for good cause” extend the effective date of the TRO “for a like period.”  That means that if the original TRO were effective for 5 days, the court may extend it another five, and a TRO originally effective for 10 days could be extended for 10 more days.  The court may also extend the TRO if the party against whom the order is entered consents to the extension.  In any extension, the reasons for the extension must be stated in the order. 

The TRO must state in reasonable detail, and not by mere reference to the pleadings, the act or acts sought to be restrained.  It is binding only upon the parties to the action and their officers, agents, servants, employees and attorneys, “and upon those persons acting in concert or participation with them who receive actual notice of the order by personal service or otherwise.”  

When the TRO is entered, a hearing date and time is set for a hearing on the preliminary injunction.  Scheduling of the hearing takes precedence over all other matters except “older matters of the same character.” 

At hearing, the party who obtained the order proceeds first, and if the proponent fails to appear, the court shall dissolve the TRO.

The party against whom the order is issued may appear and request dissolution of the TRO or modification on two days’ notice to the obtaining party, or on such shorter notice as the court may prescribe.  In such event, the court will hear the motion “as expeditiously as the ends of justice require.”

Except in domestice relations cases, a  TRO or preliminary injunction may issue only on giving of security by the applicant in the amount that the court may direct, for the payment of costs, damages and reasonable attorney’s fees that may be suffered by any party later deemed to have been wrongfully restrained.  No security is required of the State of Mississippi or its officers or agencies, and the court may waive security in a domestic relations case.  In all cases where security is required, the provisions of Rule 65.1, MRCP, apply.

The order issuing the injunction must set forth the reasons for its issuance and describe in detail the act or actions sought to be restrained.  It is binding only upon the parties to the action and their officers, agents, servants, employees and attorneys, “and upon those persons acting in concert or participation with them who receive actual notice of the order by personal service or otherwise.”

In the case of both a TRO and an injunction, if a reasonable person can not ascertain from the four corners of the document exactly what conduct is enjoined, the order should be set aside on appeal.

Practice Tip:  Before you file an application for a TRO, read Rule 65 carefully.  The requirements are technical and precise, and you will not succeed in having your TRO issued if you do not comply with the express requirements of the rule.  Include in your pleading for a TRO a request for a preliminary injunction; otherwise, the other party may simply let your 10-day relief expire, and you will be back at the starting line.

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