Practice and Procedure | The Better Chancery Practice Blog

Affidavits in Chancery

October 10, 2018 § 4 Comments

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

There are several affidavits that we use routinely in chancery:

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

All Medical is not Major

September 5, 2018 § Leave a comment

I’ve seen a few agreed judgments and PSA’s lately that have provisions along these lines:

“[Father] shall maintain major medical, optical, and dental insurance covering the minor child … “

When I inquire, I am told that what the parties intended was actually a standard health-insurance policy along with the optical and dental insurance.

There’s a huge difference between a “major medical policy” and a “health insurance” or “medical insurance” policy.

The term “major medical” is a term of art in the insurance industry to specify insurance designed to cover medical expenses due to severe or prolonged illness by paying all or most of the bills above a set amount. Many major medical policies are cheaper than a regular health or medical policy. They are designed to kick in over and above what regular health and medical insurance covers.

So a major medical policy would kick in, for example, after your health insurance has paid out, say, $50,000 for cancer treatment, and only then would major medical start paying up to some contracted limit.

A health or medical insurance policy, by contrast, pays a percentage (usually 80%) of covered medical, hospital and surgical expenses. It is not limited to severe or prolonged illness, and there is no threshold coverage amount other than a deductible or co-pays.

Remember that the judge is bound by the language you use in that agreed judgment or PSA. If it says “major medical,” it doesn’t matter what the parties thought they were getting; they are bound by the terms they used.

Consider what could happen if Junior breaks his arm and spends the night in the hospital with only a major medical policy in force. The bill is $8,000. But the major medical policy covers only catastrophic illness, such as cancer, and only after the expenses are in excess of $20,000. Problem? You betcha.

And don’t expect any relief from the judge. That’s what the parties agreed to get.

Be careful with your terminology. Your client will have to live with it.

Self-Appendectomy

July 17, 2018 § 1 Comment

Comments on this blog are limited to lawyers, judges, and other legal professionals. Yet I still get comments frequently from lay-people.

A recent proposed and unapproved comment by a frustrated pro se litigant highlights the tension between reasonable access to justice and the judge’s role as impartial tribunal:

I had a Judge finally rule that all evidence from previous case could be submitted to this new case. Of course, Defendants lawyers objected. Defendants lawyer then said that not of it was evidence, some were marked for I.D. only. The Judge said he wouldn’t even look at the I.D. ones. Being Pro Se, after spending about 8,000.00 on attorneys fees and not using my evidence, almost every bank statement, cancelled check sheet from the bank. I was asked by Judge, “What is it? I said a bank statement. Other attorney objected, said it was hearsay, and I had to put it in as I.D. After a couple times I just handed it to the other attorney but the Judge stated I had to say what it was. Therefore, it was objected to as hearsay. Printouts from a bank. Please..Check written out the casinos, lawsuits Plaintiff was hit with and depleted our funds, are not admissible. I.D. only which the next Judge will not use. I always thought that was depleting marital assets. Writing a brief for Supreme Court and this is way out of my league.

Some thoughts:

In a contested case, the judge absolutely can not assist one side or the other over evidentiary hurdles, objections, or lack of basic litigation skills. A judge who does so has crossed, or is dangerously close to crossing, the line into advocacy.
I have often said that I have never seen anyone who acted pro se in a contested case leave the courtroom in better shape than when they entered.
” … this is way out of my league.” Yes, it is. It takes lawyers around 3 years to absorb the basic knowledge base and elementary analytical skill to know how to get into the courtroom, and several years of experience on top of that to do a creditable job in litigation. Appellate cases require even more. There is a learning curve for every courtroom advocate. It’s painful to watch a pro se litigant try to master the same curve in a few hours that took a college-and-law-school-trained lawyer several years to master herself.
The lawyer in this case was zealously representing his client, which is precisely his ethical duty. It may have seemed unfair to the pro se litigant, but she was not being treated unfairly; she was simply overmatched, and, again, the judge could not help her without becoming her advocate.
No judge is going to let a lawyer overreach and take advantage of a pro se litigant, but that is solely in the interest of maintaining a neutral, fair playing field. A judge can not help one side to its benefit or to the other’s detriment.

No Findings = Reversal

April 2, 2018 § 1 Comment

It’s axiomatic that the chancellor’s conclusions have to be supported by findings of fact.

A recent iteration of that rule is in Gipson v. Jackson, a COA case decided February 13, 2018, in which the court reversed and remanded a case for failure of the judge to make findings supporting an upward modification of child support in excess of the statutory child-support guidelines. Judge Westbrook wrote for the court:

¶9. Gipson argues that the chancellor failed to make specific findings on the record, as required for a modification of child support; yet there was a $200 increase. [Fn 3]

[Fn 3] Jackson asserts that the core issue of the case is whether the chancellor has the authority to increase child-support payments for a noncustodial parent without providing any factual support for his decision or consulting the Mississippi Child Support Guidelines. Jackson further asserts that this issue is an issue of first impression. However, this Court and the Mississippi Supreme Court have addressed child-support modifications involving a noncustodial parent and specific on-the-record findings of fact. See Dailey v. McBeath, 151 So. 3d 1038, 1044 (¶16) (Miss. Ct. App. 2014); Klein v. McIntyre, 966 So. 2d 1252, 1258 (¶20) (Miss. Ct. App. 2007); Wallace v. Bond, 745 So. 2d 844, 847 (¶11) (Miss. 1999).

¶10. This Court has held that “the chancellor must apply the guidelines to make the determination that their application would be unjust.” Evans v. Evans, 75 So. 3d 1083, 1091 (¶31) (Miss. Ct. App. 2011) (citation omitted). But there are exceptions to the guidelines regarding the modification of child support in Mississippi Code Annotated section 43-19-103 (Rev. 2015). This section provides:

The rebuttable presumption as to the justness or appropriateness of an award or modification of a child[-]support award in this state, based upon the guidelines established by [Mississippi Code Annotated section] 43-19-101 [(Rev. 2015)], may be overcome by a judicial or administrative body awarding or modifying the child[-]support award by making a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined according to the following criteria:

(a) Extraordinary medical, psychological, educational or dental expenses.
(b) Independent income of the child.
(c) The payment of both child support and spousal support to the obligee.
(d) Seasonal variations in one or both parents’ incomes or expenses.
(e) The age of the child, taking into account the greater needs of older children.
(f) Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.
(g) The particular shared parental arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent’s homemaking services.
(h) Total available assets of the obligee, obligor and the child.
(i) Payment by the obligee of child-care expenses in order that the obligee may seek or retain employment, or because of the disability of the obligee.
(j) Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.

Miss. Code Ann. § 43-19-103 (emphasis added).

¶11. Jackson presented a Rule 8.05 financial statement to the chancery court, and Gipson testified that he could pay an increase in child support – although the amount of the increase was not discussed. The chancery court discussed the fact that Gipson and his wife traveled frequently and the fact that Gipson had purchased gifts [Fn omitted] for himself and his wife. However, the chancellor made no specific findings as to Gipson’s adjusted gross income and gave no specific reasons for deviating from the guidelines.

¶12. The chancellor stated that while Gipson was not working due to a chronic ankle injury, he could get a part-time job and earn more income. The chancellor also stated the following:

As to the modification of child support, there’s no doubt in this [c]ourt’s mind that this man can work. He is what you call a typical deadbeat. For a man to make only $500.00 a month, and has got all of the toys around his house that he’s got, but they belong to daddy. This [c]ourt wasn’t born yesterday. And he says he likes to fish[.] I do[,] too. It costs me $50.00 to $100.00 every time I go fishing — gasoline, the bait, and everything else. But this man is able to fish, he is able to do carpenter work, he is able to do a lot of other stuff, but he physically cannot hold out to hold a job. This [c]ourt doesn’t believe it. I’m going to set the child support at $350.00 a month, increase it.

¶13. However, we find that the increase in child support was based upon speculative income. In order for there to be a deviation from the guidelines, there must be specific findings of fact on the record. Further, “[w]hen a chancellor makes a ruling without specific findings of fact and a party raises the issue of the amount of child support awarded, this Court will send the issue back to the lower court for the mandatory specific findings of fact as to why the chancellor deviated from the guidelines.” Dailey, 151 So. 3d at 1044 (¶16). As a result, the chancery court’s upward modification of child support is reversed and remanded in order for the chancellor to make specific on-the-record findings that the application of the child-support guidelines would be unjust or inappropriate in this case.

As I have said here before, this do-over could have been avoided:

Here, seeing that the judge was going off on somewhat of a tangent, it might have been a good idea to ask the court for leave to develop more testimony that would have supported detailed findings by the judge. And then, at the conclusion of the proof, make a motion to conform the pleadings to the proof, since the issue was tried without objection by consent.
If you are tasked with drafting the judgment, make sure you address each and every Ferguson and Armstrong factor addressed by the court, with a brief stab at the court’s findings. When you do that you have documented what was not documented here — that the judge did analyze the proper factors. And this goes for every kind of case in which trial factors are required to be addressed.
If for some reason the bench ruling is not transcribed, ask the court before everyone is finally dismissed to order that it be done. If that does not work, file a motion to supplement the record to add the bench ruling.
If you can’t get the bench ruling into the record, file a timely R59 motion asking the court to make the appropriate findings.
Oh, and it should go without saying that it is your responsibility as counsel for one of the parties to make a record of the applicable factors in your case. The judge can not address them without evidence to support them. If you’re wondering what the applicable factors are, here is a link to lists of them , which I have referred to as “Checklists.”

A Brief Word About Amendments

March 28, 2018 § 5 Comments

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

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

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

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

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

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

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

… And More on R41(b) Dismissal

March 27, 2018 § Leave a comment

Only yesterday we visited the notion of an MRCP 41(b) dismissal in a trial without a jury. The point there was that the motion is one to dismiss, not for a directed verdict.

Today we study the standard that the trial court is to apply in deciding how to rule on the motion.

In In the Matter of the Dissolution of the Marriage of Lewis, decided by the COA on March 20, 2018, Judge Wilson expounded on the topic:

¶13. In a bench trial, after the plaintiff “has completed the presentation of his evidence, the defendant . . . may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.” M.R.C.P. 41(b). A motion for involuntary dismissal under Rule 41(b) is different from a motion for a directed verdict, which is made only in a jury trial. Ladner v. Stone Cty., 938 So. 2d 270, 273 (¶9) (Miss. Ct. App. 2006). “This distinction must be understood, because the standard of review for a dismissal is different than that for a directed verdict.” Id.

¶14. In ruling on a Rule 41(b) motion to dismiss, “[t]he judge must consider the evidence fairly, rather than in the light most favorable to the plaintiff,” as would be the case on a motion for a directed verdict or a motion for summary judgment. Century 21 Deep S. Props. Ltd. v. Corson, 612 So. 2d 359, 369 (Miss. 1992) (emphasis added). That is, the trial judge should give the plaintiff’s evidence only “such weight and credibility as he would ascribe to it if he were making findings of fact and rendering final judgment.” Gray v. Alumax Extrusions Inc., 477 So. 2d 1355, 1356-57 (Miss. 1985). If the judge “would find for the defendant” on the evidence presented, “the case should be dismissed.” Corson, 612 So. 2d at 369. “[T]he motion should be granted if the plaintiff has failed to prove one or more essential elements of his claim or if the quality of the proof offered is insufficient to sustain the plaintiff’s burden of proof.” Buelow v. Glidewell, 757 So. 2d 216, 220 (¶12) (Miss. 2000). “The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff’s evidence were all the evidence offered in the case.” Corson, 612 So. 2d at 369 (emphasis added).

¶15. “This Court applies the substantial evidence/manifest error standards to an appeal of a grant or denial of a motion to dismiss pursuant to [Rule] 41(b).” Id. The trial judge’s “decision on the motion is, for purposes of appeal, treated like any other finding of fact. In other words, his decision will not be disturbed on appeal unless it was manifestly wrong.” Gray, 477 So. 2d at 1357.

Applying the law to the case at hand:

¶16. “The chancellor’s findings of fact about cohabitation [and] de facto marriage . . . are entitled to substantial deference when reviewed on appeal.” Hughes v. Hughes, 186 So. 3d 394, 397 (¶6) (Miss. Ct. App. 2016) (quoting McMinn v. McMinn, 171 So. 3d 511, 518 (¶27) (Miss. Ct. App. 2014)). “We will not reverse a chancellor’s findings regarding the existence or nonexistence of a de facto marriage unless they are manifestly or clearly erroneous.” Id. at 403 (¶26) (citing Burrus v. Burrus, 962 So. 2d 618, 621 (¶15) (Miss. Ct. App. 2006)).

We’ll look at the concept of de facto marriage in a later post. At this point it’s important to bear in mind the standard you need to argue to convince the chancellor to grant — or deny — that 41(b) motion.

No Directed Verdict in Chancery Unless it is a Jury Trial

March 26, 2018 § 1 Comment

Sheila Jones George filed a contempt action against her ex, Mike Jones, charging that he had failed to comply with their divorce judgment. After Sheila rested, Mike’s attorney addressed the court: “Your honor, we would make a motion for a directed verdict, this case be dismissed as not meeting the burden of proof of contempt.” The chancellor did dismiss Sheila’s contempt claim, and she appealed.

In the case of George v. Jones, decided March 6, 2018, the COA reversed and remanded. Judge Griffis explained the difference between a motion for an involuntary dismissal and a motion for a directed verdict, and how invoking the wrong procedure produces error:

¶15. … [W]e note that when Sheila rested her case-in-chief, Mike’s attorney made a motion for “directed verdict.” In a bench trial, the proper motion to be made at this time is a motion for involuntary dismissal under Rule 41(b) of the Mississippi Rules of Civil Procedure. Rule 41(b) is the authority for an involuntary dismissal, and it provides:

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court may then render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.

Mississippi Rule of Civil Procedure 50(a) is the authority for a directed verdict; it is properly made at a jury trial.

¶16. In Crowell v. Butts, 153 So. 3d 684, 687 (¶6) (Miss. 2014), the supreme court ruled:

A motion for directed verdict granted by the court, sitting without a jury, is procedurally a dismissal on the merits under [Rule] 41(b). This Court reviews a grant or denial of a Rule 41(b) motion to dismiss under the substantial evidence/manifest error standard. In considering a motion to dismiss, the trial judge should consider the evidence fairly, as distinguished from in the light most favorable to the nonmovant, and should dismiss the case if it would find for the movant. The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff’s evidence were all the evidence offered in the case. (Internal citations and quotation marks omitted). [Emphasis in this paragraph added]

When you move to dismiss per R41(b), the judge must “consider the evidence fairly” and dismiss if it would rule for the party moving to dismiss based on the proof presented to that point, even without hearing the other side’s proof.

In a jury trial, the court has to consider the evidence “in the light most favorable to the nonmovant” and dismiss if it would find for the movant.

The standard for the court to apply in ruling on either motion is different in a bench trial than it is in a jury trial. Thus, invoking the wrong procedure can lead the judge to apply the wrong standard, and thus lead to error.

If you are confused over the difference, just remember that judges ruling from the bench render judgments; juries render verdicts. A chancellor cannot direct a verdict unless there is a jury; a chancellor can, in a bench trial, dismiss a party’s pleading and render judgment in favor of the other party.

Leave to Amend is not Automatic

March 20, 2018 § Leave a comment

Conventional wisdom has it that the court will freely grant leave to amend. While there is truth to that, it’s not always the case that you will be given leave to do so in every situation.

When the court grants a R12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, ” … leave to amend shall be granted in accordance with Rule 15(a).” R 15(a) states, in part, that ” … a party may amend a pleading only by leave of the court or upon written consent of the adverse party; leave shall be freely given when justice so requires.”

Cases construing R12(b)(6) have held that, once the motion is granted, the dismissed party must file a R15(a) motion asking leave to amend, attaching a proposed pleading, and giving the court enough information to make a finding that “justice so requires” the amendment.

Claire Flowers and Jane Paixao had filed contested pleadings in the estate of their mother. In the course of the proceedings the court granted a R12(b)(6) motion as to some of the issues they raised and as to certain parties. When they asked the court for leave to amend, the court denied their motion. Following a final judgment they appealed.

On the issue of the chancellor’s denial of the motion to amend, the COA affirmed. In the case of Flowers, et al. v. Estate of Flowers, decided February 6, 2018, Judge Carlton wrote the opinion that laid out the pertinent facts and rationale:

¶23. We next consider Claire and Jane’s contention that the chancellor erroneously denied Claire’s Rule 15(a) motion to amend her petition. The sisters argue that none of the various attorneys asserted they would suffer prejudice if the chancellor granted the motion to amend. We review the denial of a motion to amend for abuse of discretion. Crater v. Bank of New York Mellon, 203 So. 3d 16, 19 (¶7) (Miss. Ct. App. 2016).

¶24. As previously discussed, Claire filed an amended petition for compensatory and punitive damages in which she sought to assert claims of fraud and negligence per se against the attorneys who represented the interests of Brenda’s estate, the testamentary trust, and D.A.’s guardianship. Claire then filed a Rule 15(a) motion for leave to admit her amended petition. The specially appointed judge denied Claire’s motion for leave to admit and dismissed her claims against the attorneys, finding that Claire failed to state a claim under Rule 12(b)(6). The special judge also granted the attorneys’ motions to strike themselves as defendants due to Claire’s failure to obtain leave to join them under Mississippi Rule of Civil Procedure 21.

¶25. Following the Rule 12(b)(6) dismissal of her claims, Claire filed a motion for leave to amend her petition under Rule 15(a) to include claims against the attorneys and to allege “fraud and negligence per se with the correct specificity.” However, Claire’s motion for leave to amend failed to provide the substance of the amendment to inform the court of what facts or acts constituted the fraud or negligence per se. See M.R.C.P. 9(b) (providing that fraud must be pled with specificity); Faul v. Perlman, 104 So. 3d 148, 156 (¶26) (Miss. Ct. App. 2012) (discussing the elements a plaintiff must show to establish negligence per se). [Fn 7] The motion to amend instead contained only bare allegations and no facts from which to determine the existence of a cause of action.

[Fn 7] See also Price v. Price, 430 So. 2d 848, 849 (Miss. 1983) (“When a party proposes to amend his pleading, he should ordinarily make known to the trial court the substance of his proposed amendment.”).

¶26. One of the attorneys identified in Claire’s petition and amended petition filed a response that the other attorneys joined. In asking the court to deny Claire’s Rule 15(a) motion to amend, the attorneys noted that Claire had failed to “attach a proposed amended petition that would permit the [c]ourt to determine whether justice requires that leave to amend be granted.” The attorneys also noted they had been “dismissed as [respondents] . . . as a result of [Claire’s] failure to obtain leave of court to add [them] as [parties].” Furthermore, the attorneys contended that, even if the court granted Claire’s motion to amend, the amendments would not affect them because of their prior dismissal from the matter under Rule 21. As discussed, the record shows that Claire’s motion for leave to amend indeed failed to inform the chancellor of what facts or acts constituted fraud or negligence per se.

¶27. Where a trial court dismisses a complaint under Rule 12(b)(6) for failure to state a claim, Rule 15(a) requires the trial court to freely give the plaintiff the opportunity to amend her complaints “when justice so requires.” M.R.C.P. 15(a). As previously discussed, we will affirm the chancellor’s decision “unless the discretion he used is found to be arbitrary and clearly erroneous.” Breeden v. Buchanan, 164 So. 3d 1057, 1064 (¶27) (Miss. Ct. App. 2015) (quoting Poole v. Avara, 908 So. 2d 716, 721 (¶8) (Miss. 2005)). In the present case, we have the benefit of the chancellor’s explanation since the record sets forth why he denied Claire’s Rule 15(a) motion to amend. See Breeden, 164 So. 3d at 1064 (¶¶28-31) (finding an abuse of discretion where a chancellor failed to explain his denial of the plaintiff’s Rule 15(a) motion). The specially appointed judge found that Claire had failed “to state how she would amend her prior pleadings or . . . to attach a proposed amended pleading [that] would allow the [c]ourt to determine whether justice required that she be given leave to file amended pleadings[.]”

¶28. The record here demonstrates that Claire failed to meet her burden to sufficiently support an amendment of her petition. Furthermore, the chancellor dismissed the attorneys from the litigation under Rule 21 because Claire failed to obtain the court’s leave to join them, and Claire filed no appeal of the attorneys’ dismissal. See Crater, 203 So. 3d at 21 (¶16) (finding no abuse of discretion in the denial of a Rule 15(a) motion to amend where the motion only asserted claims against a nonparty and the claims were futile). For these reasons, we find no abuse of discretion from the chancellor’s denial of Claire’s Rule 15(a) motion to amend. See id. at 19 (¶7). We therefore affirm the chancellor’s judgment with regard to this issue.

So:

It’s a good practice, whenever you need a court order to amend your pleadings, to attach a proposed pleading to the motion. That proposed pleading must state a claim sufficient to survive its own R12(b)(6) motion, or your motion to amend will be denied because justice does not require leave to amend to state an insufficient claim.
R21 joinder of parties requires leave of court. (And a reminder that there is a specific procedure to allow intervention per R24, as I have posted about here previously).
Conventional wisdom is better than no wisdom at all, I reckon; however, don’t let conventional wisdom substitute for your own thought processes or for reading (and following) the rules.

NOTE: The court reached a similar conclusion in a companion case about which I posted at this link.

Amendment Fail

February 7, 2018 § 1 Comment

I see all sorts of ways that people try to amend their pleadings. Some simply file amended pleadings without leave of court, whether within or without time for responsive pleadings. Some get a court order to amend and do so. I have seen some get a court order and never file an amended pleading. A few even comply strictly with the rule.

The COA decision in Estate of Flowers: Flowers v. Estate of Flowers, Flowers and Lang, decided January 2, 2018, involved a motion for leave to amend pleadings following a R12(b)(6) dismissal, and the chancellor’s refusal to allow the amendment. The COA affirmed. Judge Carlton wrote for the court:

¶59. Finally, Claire and Jane appeal the denial of Claire’s motion for leave to admit her amended petition for compensatory and punitive damages. Claire and Jane argue that leave to amend should have been granted because none of the respondents asserted that they would
be prejudiced if the motion were granted.

¶60. In her amended petition, Claire sought to include claims against the various attorneys involved in the representation of Richard’s estate, Brenda’s estate, and the guardianship of D.A. At a hearing on Claire’s motion, the chancellor made a bench ruling wherein he granted Oakes’s Rule 12(b)(6) motion to dismiss Claire’s petition for failure to state a claim upon which relief could be granted. The chancellor also granted Oakes’s and the Meltons’ (among others) motions to strike themselves as defendants in the cause due to Claire’s failure to obtain leave from the court under Mississippi Rule of Civil Procedure 21 to add them.

¶61. As stated, in response to the chancellor’s order of dismissal under Rule 12(b)(6), on February 16, 2016, Claire filed a motion for leave to amend her petition for compensatory and punitive damages, and her amended petition for compensatory and punitive damages in accordance with Rule 15(a). In her motion, Claire stated that she “specifically requests that she be allowed to amend those portions of the complaints by which the court ruled were insufficient at stating a claim for relief. Those portions include stating fraud and negligence per se with the correct specificity.”

¶62. The defendants listed in Claire’s petition joined Oakes’s motion requesting that Claire’s motion for leave to amend be denied. The defendants argued that Claire failed to “attach a proposed amended petition that would permit the chancellor to determine whether justice requires that leave to amend be granted” and that the parties were “dismissed as [respondents] . . . as a result of [Claire’s] failure to obtain leave of court to add [them] as part[ies].”

¶63. We review the denial of a motion to amend for abuse of discretion. Crater v. Bank of New York Mellon, 203 So. 3d 16, 19 (¶7) (Miss. Ct. App. 2016). We will affirm the chancellor’s decision “unless the discretion he used is found to be arbitrary and clearly erroneous.” Breeden v. Buchanan, 164 So. 3d 1057, 1064 (¶27) (Miss. Ct. App. 2015) (quoting Poole ex rel. Poole v. Avara, 908 So. 2d 716, 721 (¶8) (Miss. 2005)).

¶64. Rule 15(a) provides as follows:

On sustaining a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), . . . leave to amend shall be granted when justice so requires upon conditions and within time as determined by the court, provided matters outside the pleadings are not presented at the hearing on the motion.

Regarding Rule 15 amendments to pleadings, the supreme court has held as follows:

While proposed amendments have been liberally permitted throughout Mississippi legal history and are encouraged under Rule 15[,] a party cannot fail to convey the subject matter of the proposed amendment to the trial judge and if they do so fail, no error can be predicated on the judge’s failure to allow the amendment.

Parker v. Miss. Game & Fish Comm’n, 555 So. 2d 725, 730-31 (Miss. 1989). Additionally, in Price v. Price, 430 So. 2d 848, 849 (Miss. 1983) (citing Watts v. Patton, 66 Miss. 54, 5 So. 628 (1888)), the supreme court explained that a chancellor’s refusal to allow the amendment of a pleading cannot be reviewed on appeal where the record fails to show the proposed amendment.

¶65. In his order denying Claire’s motion for leave to amend in accordance with Rule 15(a), the chancellor explained the following: “[T]he motion filed by [Claire] fails to state how she would amend her prior pleadings or fails to attach a proposed amended pleading which would allow the court to determine whether justice required that she be given leave to file amended pleadings[.]” The record reflects that the motion to amend filed by Claire contained only bare allegations and contained no facts or actions from which to determine the existence of a cause of action. See also M.R.C.P. 9(b) (providing that fraud must be pled with specificity); Faul v. Perlman, 104 So. 3d 148, 156 (¶26) (Miss. Ct. App. 2012)
(discussing the elements a plaintiff must show to establish negligence per se). The record reflects that the chancellor thus properly found that Claire failed to state a basis for amending her pleadings. See Parker, 555 So. 2d at 730-31.

¶66. Additionally, with respect to a claim of fraud, we recognize the following guidance:

[T]he facts on which the charge of fraud is predicated must be specifically stated with full definiteness of detail. No general averment of a fraudulent course of business, and no bare statement of a corrupt design on the part of the defendant, is sufficient. The acts themselves which are claimed to be fraudulent must be clearly set out. It must further appear by definite averment in what manner the fraudulent acts wrought injury to the complainant. Fraud cannot be inferred, but must be distinctly charged, and with such fullness and precision that a court of chancery would be enabled to grant full and complete relief and redress should the bill of complaint be taken as confessed.

Weir v. Jones, 84 Miss. 602, 36 So. 533, 534 (1904). Claire’s failure to provide a basis for amending her pleadings and her failure to plead fraud and negligence with the required specificity prevented the chancellor from determining whether Claire had a cause of action or just allegations without facts.

¶67. Furthermore, as previously stated, the record also shows that Oakes, Stuckey, Melton Jr., and Melton III were dismissed from the litigation as defendants because Claire failed to obtain leave of court before she added the attorneys as parties as required by Rule 21. Claire filed no appeal of the dismissal of the attorneys as parties. In Crater, 203 So. 3d at 21 (¶16), this Court addressed a Rule 15(a) motion to amend filed against a nonparty:

Because the motion to amend asserted claims only against a nonparty, devoid of any factual allegation, after the statute of limitations had run, and sought to exercise a statutory right that does not exist, the claims raised by [the petitioner] in her amended complaint were futile. Because the amendment was futile, the chancery court was not required to grant leave for the amendment. Therefore, the chancery judge did not abuse his discretion in ruling on the motion to dismiss prior to ruling on [the petitioner’s] motion to amend.

¶68. Accordingly, we find no abuse of discretion in the chancellor’s denial of Claire’s motion to amend.

Some afterthoughts:

Of course, any amended pleading must comply with R15 in order to do its job. My suggestion is to read the rule. I’ll bet most of you will be surprised at how many times you’ve failed to do it right.
When leave of court to amend is required, you must attach a copy of your proposed pleading so that the court can determine whether the motion should be granted. That’s especially true, as this case points out, where you are seeking to plead matters such as fraud that require specific allegations.
If you do not attach a copy of a proposed pleading and the judge overrules your motion to amend, you can’t complain about it on appeal.
When your pleadings are dismissed for failure to state a claim, don’t assume that you have the automatic right to amend. File a motion and attach your proposed pleading. Then, if the judge grants your motion, file the proposed pleading.
Again: if the judge grants your motion to amend, remember to file the pleading.
R21 requires a court order to add parties. In this case, the plaintiffs merely added parties without a court order, which allowed those parties to escape on a motion to dismiss, which snagged the plaintiffs on the statute of limitations (SOL).
SOL is seldom fatal in chancery matters, but that’s no reason not to amend and join parties per the rules.

False Pleadings

January 23, 2018 § 2 Comments

In case you hadn’t noticed, MRCP 11(a) requires every pleading to be signed by one of the attorneys of record. But it doesn’t stop there. It goes on to say that …

“The signature of an attorney constitutes 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.”

R11(b) provides sanctions for non-compliance.

The Advisory Committee Note says that, “Good faith and professional responsibility are the bases of Rule 11.” And it points to R8 pertaining to general denials, which is expressly subject to R11, “meaning only when counsel can in good faith fairly deny all the averments in the adverse pleading should he do so.”

So how do the following comport with R11?

Attorney prepares and files an affidavit of diligent inquiry stating that the affiant is the sole heir of the decedent. The attorney is relying solely on the word of the affiant-client. Turns out that the affiant has two sisters in another state.
Attorney files an affidavit on behalf of the client taking the client’s word that she looked everywhere for her daughter to take custody of her child, and the daughter is not to be found in Mississippi. A simple Facebook search would have located the daughter in Gulfport.
Attorney files a verified application for injunction swearing that efforts have been made to give notice, but that notice should not be required. On inquiry by the judge it is disclosed that counsel has been in discussions about the matter with an attorney representing the opposing party, and that attorney’s office is directly across the street from the courthouse.
Attorney signs off on a divorce complaint alleging HCIT and adultery knowing from interviews with the client that there is not enough evidence to support either ground.

If good faith and professional responsibility are the fundamental considerations behind R11, then I think it requires more than taking your client’s word for it and filing pleadings that prove to be wrong. Notice that I said wrong, and not fraudulent. But that’s a thin line.

Where Am I?