A Case for Sanctions
November 10, 2014 § 3 Comments
Louis Pannagl had made a will in 2001. In April, 2011, he contacted Kellems, a lawyer, about changes he wanted to be made in his will. He sent Kellems handwritten notes with the changes, including a document that included the language, “The Will of April 23rd 2011 … has been destroyed and March 23, 1993 [sic].” It is undisputed that the notes were in Louis’s handwriting.
Louis died on June 8, 2011, and Louis’s widow, Donis, contacted one of Louis’s lawyers, who sent her the notes described above. Donis gave the notes to her son, David Lambert, Louis’s step-son, who read them and passed them on to Holmes, an attorney he had hired to open Louis’s estate. On August 19, 2011, a sworn petition was filed, with Louis’s will attached, alleging that the original had been lost and that the will had not been destroyed by Louis with intent to revoke it. The handwritten notes were not attached to the petition.
Both of Louis’s biological son, Curt, and daughter, Sammi, filed contests to probate of the will. It was not until around a year after the petition had been filed that they found out, in the course of discovery, about the handwritten notes revoking the prior will(s). Sammi filed for summary judgment and sanctions under MRCP 11 and the Litigation Accountability Act. The chancellor granted summary judgment, but declined to impose sanctions.
Sammi and Curt appealed the denial of sanctions.
In the case of Estate of Pannagl: Pannagl and Spence v. Lambert and Holmes, the COA on November 4, 2014, reversed. Since this case makes some important points about sanctionable behavior and the applicable law, I am quoting at length:
¶7. In this appeal, Curt contends that Lambert’s failure to include the document in this petition constituted fraud; thus, the chancellor erred in failing to award sanctions. Curt argues that Lambert, having read the handwritten document prior to filing his petition, knew the will had been destroyed with an intent to revoke it and, therefore, had no hope of success. According to Curt, the action was frivolous and constituted a fraud on the court because Lambert withheld the document and filed a sworn petition alleging that the original will was lost and not destroyed by Louis with the intent to revoke it.
¶8. Mississippi Rule of Civil Procedure 11(b) states, in pertinent part:
If any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay, the court may order such a party, or his attorney, or both, to pay to the opposing party or parties the reasonable expenses incurred by such other parties and by their attorneys, including reasonable attorneys’ fees.
M.R.C.P. 11(b). The Litigation Accountability Act states, in pertinent part:
Except as otherwise provided in this chapter, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney’s fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification . . . .
Miss. Code Ann. § 11-55-5(1) (Rev. 2012). The phrase “without substantial justification” is defined by the Act as a filing that is “frivolous, groundless in fact or in law, or vexatious, as determined by the court.” Miss. Code Ann. § 11-55-3(a) (Rev. 2012). “The term ‘frivolous’ as used in this section takes the same definition as it does under Rule 11: a claim or defense made ‘without hope of success.’” In re Spencer, 985 So. 2d at 338 (¶26) (quotations omitted). “A plaintiff’s belief alone will not garner a ‘hope of success’ where a claim has no basis in fact.” Foster v. Ross, 804 So. 2d 1018, 1024 (¶21) (Miss. 2002) (quotations omitted). Whether a party has any “hope of success” is an objective standard to be analyzed from the vantage point of a reasonable plaintiff at the time the complaint was filed. Tricon Metals & Servs. Inc. v. Topp, 537 So. 2d 1331, 1335 (Miss. 1989).
¶9. The chancellor found the following: (1) it was unclear whether the will had been revoked or if Louis merely contemplated doing so; (2) more information was required to determine Louis’s intent; (3) the handwritten document was insufficient to put a proponent of a will having minor children as beneficiaries on notice that it had been revoked; (4) the handwritten document was not subscribed, but merely signed at the top, and the various copies of the document contained different-color ink; and (5) tendering a copy of Louis’s will was not so egregious as to warrant the imposition of sanctions against Lambert and Holmes.
¶10. The Mississippi Supreme Court has found that a misrepresentation of pertinent facts to a chancellor, who entered an order based on the misrepresentations, was a violation of the Litigation Accountability Act and Rule 11 of the Mississippi Rules of Civil Procedure and warranted sanctions. In re Estate of Ladner, 909 So. 2d 1051, 1056 (¶17) (Miss. 2004). In that case, an executor and his attorney failed to inform the court of the testator’s brother’s claim to ownership of cattle located on the brother’s land prior to obtaining a court order to seize the cattle. Id. at 1055-56 (¶¶15-16). In addition, this Court has found that a verified creditor’s notice of claim, filed by the counsel of a creditor of potential heirs of a decedent’s estate and containing a misrepresentation of pertinent facts, was frivolous. In re Necaise, 126 So. 3d 49, 57 (¶30) (Miss. App. Ct. 2013). This Court found that the misrepresentation caused the estate to incur unnecessary attorney’s fees in having to respond to those filings and thus warranted sanctions under Rule 11 and the Litigation Accountability Act. Id.
¶11. In this case, Lambert failed to disclose the existence of the handwritten document when he filed his petition. A reasonable person in Lambert’s position, with Lambert’s knowledge, would have no hope of success in rebutting the presumption that Louis’s will had been lost and not destroyed. Lambert admitted that, when he filed his petition, he had received and read the documents attached to Carrigee’s letter, which included the handwritten document. This letter, with attachments, was later given to Holmes prior to filing this action. In that document, Louis listed a myriad of changes he wanted to make to his will. At the bottom of the first column of the two-column document, he wrote: “The will of April 23rd 2001 Brookhaven/Brady Kellems has been destroyed.” The words “and March 23, 1993,” were written in a different-color ink on Kellems’s copy. The document was signed by Louis, and Donis testified that the document was in his handwriting. Lambert searched for a will, but could not find one. The file folder in Louis’s office entitled “will” was empty.
¶12. From this document, it is clear that Louis wanted to make changes to his will and that he intended to revoke all prior wills. Even though Louis signed this document at the top of the page, Donis testified that it was his handwriting. When taken in context, the statement that: “The will of April 23rd 2001 Brookhaven/Brady Kellems has been destroyed,” effectively put Lambert and his attorney on notice that Louis destroyed his will with the intent to revoke it. This is evidenced by Lambert’s attempt to convert the proceedings to that of intestate succession. On the same day that the court ruled on a motion to compel Kellems to give his deposition, and prior to any other depositions being taken, Lambert filed a motion to amend his petition. He sought a declaration that Louis had died intestate and asked the court to appoint Donis the administrator. The handwritten document had not yet come to light, and judging from the timing of the motion’s filing, Holmes knew that once it did, there would be no hope of success in overcoming the presumption. In the hearing on the motion for summary judgment, Holmes admitted that he filed that motion because he did not think he could overcome the presumption that Louis’s will had been lost and not destroyed.
¶13. The chancellor did not consider the fact of nondisclosure to be important when making her decision about whether to award sanctions. But the fact remains that the nondisclosure was a misrepresentation, making the petition to probate the will frivolous in light of the evidence. The chancellor abused her discretion in not considering Lambert’s nondisclosure in determining the frivolity of the action. Curt incurred unnecessary expense in contesting the probate of this will, only to uncover a document that Lambert withheld for almost a year and a half and that would later serve as the basis for summary judgment.
¶14. Finding that the chancellor abused her discretion in deciding not to award sanctions pursuant to Rule 11 and the Litigation Accountability Act, we reverse and remand for a determination of attorney’s fees and costs.
So the shortcoming here was the failure to disclose the handwritten notes. Hindsight, which is always high-def, tells us that the better practice would have been to disclose the notes and leave it up to the chancellor, as finder of fact, to interpret them. By not disclosing the notes, Lambert and counsel gave the reasonable impression that they were trying to hide something to change a possible adverse outcome. That’s always a recipe for sanctions and even discipline.
Ten Tips for a Clearer Record
October 30, 2014 § 1 Comment
As I have said here before, your primary job as a trial lawyer is to make a comprehensible record.
There are two obvious reasons for this: (1) if you fail to make the trial judge understand what your favorable facts are and what your theory of the case is, you lose, plain and simple; and (2) if you lose, you have got to have everything in the record — clearly stated — that you need to win on appeal.
It does you no good to try a case for three days and have the record transcribed only to find to your dismay that it is full of [Unintelligible], and interrupted, incomplete sentences, and references by the witnesses to documents that were never identified or offered into evidence.
Here are ten tips to get you thinking about making an adequate record:
1. The court reporter can not get two (or more) people speaking at the same time. Lawyers who have come before me know this is a pet peeve of mine. The record is required to be verbatim, meaning that everything said audibly in court must appear in the record, and must identify who said what. Even the best court reporter can not make a verbatim record of more than one person speaking at the same time. After several warnings, I have told my court reporter to stop trying and just record it as [Unintelligible] if she can not accurately record what is being said and identifying the speaker. That does not produce a record that might prevail on appeal, you can rest assured.
2. No nods or shakes or shrugs. The court reporter is not an interpreter. If your witness nods, the reporter will report it as [witness nods], not as a “yes.” It will be up to the trial judge and appellate court to do the interpreting, which may not yield the intended result. When your witness offers a physical gesture instead off a verbal response, follow up with something like, “Does that mean yes?” or “Please answer verbally.” It’s not the judge’s job to ask that, although some judges will just to resolve their own doubt.
3. What in the world are you talking about? You hand the witness a photograph and ask what it depicts, and never offer it into evidence (counsel opposite is not going to help you). Or you hand the witness a sheaf of documents already in evidence and ask questions about them, never identifying them by exhibit number. Either is a good way to keep the trial judge and the appellate court from knowing what it is you’re trying to prove.
4. Read at your peril. Some people talk fast, but everybody reads much faster than they speak normally. When you read, consciously slow down. And then slow down some more. You read faster than you talk because you’re not having to think about what you are going to say. If your goal is an intelligible record, you will have to read a lot slower than it seems like you should, but the product will be a record that is accurate.
5. Speak up! Projecting one’s voice seems to be a lost art, but it’s essential if you want the judge and court reporter to catch what you’re saying. That’s true even if you and your witness have a microphone. Speak up. When you have a soft-speaking witness, encourage him to speak louder. Don’t stand too close to the witness because that usually degrades into a conversational, coffee-table exchange.
6. Distractions distort the record. Anything that distracts the court reporter will detract from the accuracy of your record. Shuffling papers, drumming a miked table, loud whispering, jangling cell phones, are a few of the most attention-grabbing. If you or your client have a hacking cough, have some lozenges at the ready or ask the judge to allow a cup of water. If all else fails, suggest that your client to go out into the lobby until the paroxysms subside, making sure you either ask the judge for a recess or announce that your client is okay with proceeding in her absence.
7. Let the court reporter mark the exhibits. You’ve just handed the court reporter that crucial exhibit, and before she can do anything else, you launch into your next question. As a rule, most judges or court reporters will stop you, but I saw a court reporter some years ago simply take the document and lay it on the table, resuming taking her record without ever marking the exhibit. That’s on the lawyer.
8. Nothing is stricken. Something said in court can not be unsaid, so do not even ask. It’s the court reporter’s job to make a verbatim record of everything that happens. If you don’t like what was said, cover the offending answer in redirect or cross.
9. S-p-e-l-l. You know the witness’s name and spelling, but neither the court reporter nor the judge do. It’s a good practice to ask the witness to spell names other than the most common. And that goes for persons and places identified in testimony, as well as case citations.
10. Clarify pronouns. As handy as they can be, pronouns introduce vagueness into your witness’s testimony. “All four arrived together, but I saw him leave later with her, and I was with him until she and he came back.” If you don’t define all of those pronouns using names, you have left the court with an indecipherable lump of information.
MRCP 4(h) and the Divorce Complaint
October 27, 2014 § Leave a comment
We talked here last week about the applicability of MRCP 4(h) to R81 actions. Whichever side of that particular issue you come down on, you need to be aware that, yes indeed, R4(h) does apply to divorce complaints. And it can bite you in uncomfortable regions of your anatomy if you’re not careful.
In Webster v. Webster, 834 So.2d 26 (Miss. 2003), Charles Webster had left his wife, Jean, and moved to Texas, where he obtained a divorce judgment against her.
On October 5, 1999, Jean filed her own action in Mississippi, claiming that Texas never obtained personal process on her, and that she had never lived in Texas. She attempted several times unsuccessfully to effect certified mail process. On February 8, 2002, she filed a motion to allow out-of-time service of process, which the chancellor granted, finding that good cause existed to allow an additional 120 days.
On June 21, 2000, outside the 120-day extension, Jean filed an amended complaint and issued a new summons. Charles was served with process on July 3, 2000. On October 30, 2000, the chancellor entered a judgment granting alimony and other relief that Charles found distasteful enough that he filed a R60 motion complaining that the court did not have personal jurisdiction because of the out-of-time process. The chancellor overruled the motion, and Charles appealed.
The MSSC reversed and remanded.
Was Jean’s motion for extension of time untimely? Jean waited until after the initial 120 days had run before she filed for additional time. The court took note of a split of authority in other states, but noted that there is nothing in the rules that requires filing a motion for extension within 120 days. It did point out that a diligent attorney should file within the 120 days, and would actually support a finding in favor of the extension.
Did Jean show good cause for not meeting the 120-day requirement? The court said no. You can read the opinion for yourself, but to me there are two salient points to take away: (1) Jean did not support her motion with affidavits, which would have made a record; and (2) You have to make a convincing effort to find and serve the defendant; a few random, half-hearted stabs at it will not suffice.
I also wonder whether that amended complaint was done properly. We’ve talked about that here before.
The moral of this story is that failure to get process on a defendant within 120 days of filing your complaint is one of those fatal problems that can lurk in your record until it rises, zombie-like via a R60 motion, and then on appeal, causing you to lose a case you and your disappointed client had thought you had won.
Do you think this is an academic point you’re not likely to see in your lifetime? Not so fast, my friend. The following scenario happens every day: You file a complaint for divorce on HCIT and alternatively on ID, anticipating, based on your client’s confidence, that everything will be worked out swimmingly. After six months the defendant still has not come to terms — and he has not been served with process. Finally, you issue process and get the case moving. Your 192-day process is ticking away in your case like a time bomb.
Best practice is to wait no longer than 60-90 days to get a waiver and agreed PSA. Immediately after that, have the defendant served with process. You can then continue to attempt a settlement, but R4(h) will no longer be a concern.
Does MRCP 4(h) Apply to R81 Cases?
October 21, 2014 § 2 Comments
R4(h) states:
If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.
In the case of Roberts v. Lopez, decided September 23, 2014, the COA said this:
[¶9] Notwithstanding the provisions of Rule 4(h), Rule 81(a)(9) provides, in pertinent part:
Applicability in General. These rules apply to all civil proceedings but are subject to limited applicability in the following actions which are generally governed by statutory procedures [:] . . . Title 933 of the Mississippi Code of 1972.
(Emphasis added).
¶10. Rule 81(d)(2) provides that modification of custody matters “shall be triable 7 days after completion of process in any manner other than by publication . . . .” Rule 81(d)(5) provides in part:
Upon the filing of any action or matter listed in subparagraphs (1) and (2) [of Rule 81(d)], summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the same shall be heard. Said time and place shall be set by special order, general order[,] or rule of court.
David was served with a Rule 81 summons commanding him to appear at the August 24, 2012 hearing. Therefore, it is of no moment that Liza’s initial complaint and amended complaint, which sought to set aside or modify previous custody orders, were filed more than 120 days prior to David being served with the Rule 81 summons. The modification of custody orders that Liza sought was governed by Rule 81(d), not Rule 4(h) as David contends …
This is a novel rationale. The court did not cite, nor have I been able to find, a prior case that supports this assertion. There is nothing in the language of R4(h) that excepts R81 matters. I had always understood the limitation language of R81(a) as applying to statutory provisions that set out specific deadlines such as some estate and guardianship matters.
As a practical matter, R4(h) is usually applied in circuit court actions where its application has statute-of-limitations ramifications. In chancery, since statutes of limitation seldom apply, the 4(h) dismissal is without prejudice, and one can simply shrug it off and refile. David, in his case, tried to use 4(h) as a sword to set aside the trial court’s judgment. He failed, though, based on the court’s reasoning above, but most importantly due to this:
Moreover, David appeared and participated generally in the August 24, 2012 hearing. So even if process were defective, which it was not, David waived the defect by his appearance and general participation in the hearing. See Isom v. Jernigan, 840 So. 2d 104, 107 (¶9) (Miss. 2003). Thus, this issue is without merit.
As we all know, a voluntary general appearance waives any objection to personal jurisdiction.
So, does Roberts v. Lopez establish the rule that R4(h) simply does not apply to R81 matters based on the language quoted above? I think I’m going to treat that language as dicta, since the dispositive fact here was that David waived the objection. It was unnecessary for the court to go into that R4 vs. R81 analysis when all that had to be said was that David’s general appearance subjected him to personal jurisdiction regardless of any defect of process. Your chancellor may see it differently.
Checklists, Checklists, Checklists
August 12, 2014 § 11 Comments
You can skip over this post if you’ve been paying attention to this blog for any appreciable length of time.
For you newcomers and oblivious long-timers, you need to know and appreciate that proving many kinds of cases in chancery court is a matter of proving certain factors mandated from on high by our appellate courts. I’ve referred to it as “trial by checklist.”
If you don’t put on proof to support findings of fact by the chancellor, your case will fail, and you will have wasted your time, the court’s time, your client’s money. You will have lost your client’s case and embarrassed yourself personally, professionally, and, perhaps, financially.
I suggest you copy these checklists and have them handy at trial. Build your outline of the case around them. In your trial preparation design your discovery to make sure that you will have proof at trial to support findings on the factors applicable in your case. Subpoena the witnesses who will provide the proof you need. Present the evidence at trial that will support the judge’s findings.
If the judge fails to address the applicable factors in his or her findings of fact, file a timely R59 motion asking the judge to do that. But remember — and this is critically important — if you did not put the proof in the record at trial to support those findings, all the R59 motions in the world will not cure that defect.
Here is an updated list of links to the checklists I’ve posted:
Income tax dependency exemption.
Modification of child support.
Periodic and rehabilitative alimony.
And here are two checklists that will help you in probate matters:
A Few Random Thoughts About Pre-Nups
August 6, 2014 § 3 Comments
If you’ve practiced law for any length of time, you have been confronted with this scenario:
Mr. X, a client for whom you likely have done some agreeable work before, enters your office accompanied by a pleasant woman, Miss Y, who is introduced as his fiancée.
After the initial pleasantries, Mr. X informs you that the happy couple is being married tomorrow, and they need you to prepare an antenuptial agreement. It should not be any big problem, because they have agreed, after much discussion, to the terms upon the piece of notebook paper that Mr. X pulls out of his wallet and lays on your desk. If you will have it typed up, they will sign it and go forth to embark on an ensuing lifetime of marital bliss, they tell you while gazing lovingly into each other’s eyes (eyelashes batting furiously).
Now, let’s stop right there before you hand it to your secretary to type up. Let’s consider a few points:
- Antenuptial agreements are enforceable, if they are fair in their execution and a full disclosure of assets and liabilities has been made. Smith v. Smith, 656 So.2d 1143 1147 (Miss. 1995). If the parties agree to language that a full disclosure has been made, that creates a presumption that it was done. See, Kitchens v. Estate of Kitchens, 850 So.2d 215, 217 (Miss. App. 2003). The presumption may, however, be overcome by proof of fraud, misconduct, or overreaching. Id. In a case I had recently, both parties testified that neither had the benefit of any financial disclosures of the other, and neither had any clue as to the financial situation of the other, effectively negating the language in their own agreement.
- Just as in an irreconcilable differences divorce, you can not ethically represent both parties. You need to make it clear that you can only represent one, and my suggestion is that it be the one with whom you had a previous attorney-client relationship. In a case where you represented neither or both before, they will have to choose.
- You need to confer separately with your client about the content of the agreement, and you need to inform the other party that (s)he should seek and obtain independent legal advice. This is critical. Laypeople do not understand the intricacies and nuances of marital property, alimony, and divorce, and the seemingly innocuous provisions they jotted down on that paper may have far-reaching and even drastic repercussions for either or both later in the context of a divorce or estate.
- Whom you represent, and the fact that you have not provided legal advice to the the other party, and that the other party is aware of the need to consult with independent counsel, all need to be spelled out in the agreement you draft
- And while I am on that point, fastidiously avoid saying or doing anything that can be construed as legal advice to the unrepresented party. I can guarantee that that will come back and bite you in your nether regions.
- Seriously consider whether you even want to touch this with the virtual ten-foot pole. Can all the bases be covered in the brief twenty-four hour period? Who will be held responsible if it all blows up in your client’s face? Do you have time to do the investigation and consultation with your client necessary to protect him?
It’s for another post to talk about the ingredients of an effective, successful pre-nup. My advice is, unless you have a tried-and-proven form in which you have complete confidence based on its being upheld in other cases, you should not even attempt to do one. I also suggest that you never do a pre-nup at the eleventh hour, as was the case here.
The Calculating Judge
August 5, 2014 § 10 Comments
I don’t think I’m overstating when I say that the sum of case law requires chancellors to be at times mindreaders, engineers, valuation experts, tax experts, soothsayers, sages, interpreters, accountants, astrologers, psychologists, geneticists, mathematicians, theologians, and, always, legal scholars. I am sure, with a little research, I could add some more roles that our jurisprudence has conferred on chancery judges.
As for the role of mathematician, it has long been the law in Mississippi that the judge may do calculations to arrive at her conclusions. That almost goes without saying, since many cases we hear involve piles of bank statements, appraisals, balance sheets, general ledgers, financial statements, tax returns, and all kinds of other data that require number-crunching.
But how far does that computational authority extend?
That was the question posed in the COA case of Pruitt v. Pruitt, decided July 29, 2014. In Pruitt, the chancellor had less than ideal proof of the value of the parties’ respective PERS accounts in an equitable distribution/alimony case. He requested further proof to support his decision, but the parties told him, in essence, that such proof was unavailable. In other words, “Judge, you’re on your own.”
Faced with what he apparently considered a dearth of proof, the chancellor found information in a PERS handbook and website that he used to calculate the value of the husband’s PERS account. Based on the figures he derived from his computations, the judge ordered Mr. Pruitt to pay Mrs. Pruitt alimony (or division of PERS benefits; it’s not clear to me which), and he awarded her a judgment for more than $90,000, which was his calculation of the difference in their estates.
Mr. Pruitt appealed. Judge Roberts, for the COA, addressed his issues:
¶9. Ira’s issue on appeal stems from the fact that after the parties went to trial, the chancellor found information from a PERS handbook and the PERS website and determined a value for Ira’s PERS retirement account. Ira argues that the chancellor erred by considering evidence outside the record. We agree.
¶10. In Dunaway v. Dunaway, 749 So. 2d 1112, 1121 (¶28) (Miss. Ct. App. 1999), a chancellor was faced with proof of valuation that was “something less than ideal.” Consequently, the chancellor “made valuation judgments” that had at least some evidentiary support in the record. Id. This Court stated that “[t]o the extent that the evidence on which the chancellor based his opinion was less informative than it could have been, we lay that at the feet of the litigants and not the chancellor.” Id. Accordingly, this Court found that the chancellor had not abused his discretion. Id.
¶11. Although a chancellor may value assets based on evidence that is based on something less than ideal, the chancellor’s valuation must be based on at least some evidentiary support in the record. In other words, we must draw a distinction between less-than-ideal evidence presented by parties to the litigation, and information outside of the record that neither party presented. Despite the chancellor’s clear and thorough attempt to resolve the issue in an equitable manner, under the precise circumstances of this case, we must find that it was an abuse of discretion to consider evidence that was outside the record. It follows that we remand this case for further proceedings.
Having said that, the COA’s remand instructions help illuminate the scope and approach that applies:
¶12. On remand, the chancellor may exercise his considerable discretion when calculating the manner in which Ira’s PERS retirement benefits should impact the equitable distribution of Ira’s and Lena’s marital assets and liabilities. We are aware of no restriction on the chancellor’s right to calculate Ira’s income based on the monthly payments he receives from his PERS annuity – at least to the extent that such income impacts Ira’s ability to pay Lena alimony. But we caution the chancellor to remain mindful that Ira cannot exercise any option to pay Lena a lump-sum figure from his PERS retirement account. Essentially, a lump-sum payment from Ira’s PERS account would operate as a qualified domestic relations order (QDRO). A QDRO is permissible in the context of a retirement account governed by the Employment Retirement Income Security Act (ERISA). See Parker v. Parker, 641 So. 2d 1133, 1137 (Miss. 1994). But ERISA does not apply to retirement plans that are “established and maintained for its employees by . . . the government of any State . . . .” 29 U.S.C. § 1321(b)(2) (2012). PERS was established “for the purpose of providing retirement allowances and other benefits . . . for officers and employees in the state service and their beneficiaries.” Miss. Code Ann. § 25-11-101 (Rev. 2010). Furthermore, accrued PERS benefits are “exempt from levy and sale, garnishment, attachment or any other process whatsoever, and shall be unassignable except as specifically otherwise provided in this article . . . .” Miss. Code Ann. § 25-11-129(1) (Rev. 2010). Therefore, a lump-sum payment from an accrued PERS retirement account is not permissible by way of a QDRO. We recognize that the chancellor’s order did not specifically attempt to award Lena any figure by way of a QDRO – at least not in name. When the chancellor denied Ira’s motion for reconsideration, he noted Ira’s claim that the lump-sum judgment was a “masked” QDRO “under another name.” The chancellor found no merit to Ira’s claim, but he did not discuss his reasoning. Notwithstanding the name used to describe the lump-sum judgment, the mechanics involved operate no differently than a QDRO. Most importantly, it is legally impossible for Ira to transfer a lump-sum figure from his PERS account. A legally impossible option is not an option at all.
That last paragraph is something you should clip and paste into your notebook of useful chancery information.
Keep in mind that it’s up to the lawyers, and not the judges, to marshal and get into evidence the proof that will support their client’s case. It’s frustrating in the extreme for a judge to have an incomplete and inadequate record which the chancellor is required to analyze applying two, three, four, or more sets of appellate-court-mandated factors.
One point about this case has me scratching my head, though. MRE 201 specifically states that “[a] court may look to any source it deems helpful and appropriate, including official public documents, records and publications …” Unless I am missing sosmething, I would guess that a PERS handbook and the agency’s website would come within that definition. I wonder whether the COA took into account or even considered the broad scope of judicial notice that the MSSC has allowed judges. I posted about the rather breathtaking scope of it here. Three points from that post:
- In Witherspoon v. State ex rel. West, 138 Miss. 310, 320, 103 So. 134, 136-37 (1925), the court held that it was within the judge’s diecretion to ” … resort to … government publications, dictionaries, encyclopedias, geographies, or other books, periodicals and public addresses. (citing, inter alia, Puckett v. State, 71 Miss. 192, 195, 14 So. 452, 453 (1893)). Nothing in Rule 201 casts doubt on Witherspoon.”
- In Enroth v. Mem’l Hosp. at Gulfport, 566 So. 2d 202, 205 (Miss. 1990), the chancellor’s decison was upheld, notwithstanding that he took judicial notice, without advising the parties in advance, of: (1) numerous newspaper articles discussing the nature, operation and funding of Memorial Hospital, (2) conversations with physicians, (3) conversations with the Chancery Judge’s own niece who was an employee at the hospital, (4) conversations with a lawyer not involved with this particular case but who was familiar with the matter, and (5) the fact that, before becoming Chancery Judge and in his prior capacity as a lawyer, he had been involved in a lawsuit regarding the hospital in which its legal status had been an issue.
- In neither of these cases, nor in the more contemporary case cited in my previous post, to my knowledge, did the judges give advance notice of the matters of which they took judicial notice in their rulings.
Why was it error for the chancellor in Pruitt to consult with official publications in making his calculations, but it was not error in the cases cited above for the judges to range far beyone the record in making their findings?
Was it the computation in Pruitt that was the offending act, or was it going outside the record? I’ll leave it to you to calculate.
How Much to Pay Your Witnesses
July 15, 2014 § 9 Comments
Of course you can’t pay witnesses for their testimony (except experts, sortof), but you are required by MRCP 45(c)(1) to pay “to a non-party witness at the time of service [of a subpoena] the fee for one day’s attendance plus mileage allowed by law.” That payment may be waived by court order for indigence, and is not required of the State of Mississippi.
The witness fee is set out in MCA 25-7-47, which has provided that the witness is to be paid $1.50 per day and five cents per mile for travel to and from the courthouse “by the nearest route,” plus tolls and ferriage.
The usual practice in this district up to now for those who have not ignored the requirement is to issue the subpoena and tender a check for some nominal sum, like $2.00, to local witnesses.
The cost of witnesses, however, has gone up significantly, effective July 1, 2014. SB 2676, amends MCA 25-7-47, as follows:
Witnesses in the county, circuit * * *, chancery and justice courts shall receive * * * the same pay per day as is set by the board of supervisors under Section 25-7-61 for service as a juror plus mileage as authorized under Section 25-3-41 for each mile going to and returning from the courthouse to their homes by the nearest route, and such tolls and ferriages as they may actually be obliged to pay; but * * * a charge shall not be made for mileage except that traveled in this state. * * * Witnesses in all other cases shall receive the same compensation as they receive before the circuit court. It shall not be necessary to issue subpoenas for police officers as witnesses in city cases of cities having a population of more than ten thousand (10,000) according to the federal census of 1930; and * * * officers, when used as witnesses in * * * cases, are not to be allowed witness fees. A law enforcement officer who has retired or otherwise ceased employment as a law enforcement officer but who is required to testify in any case based on matters that arose during the course of the officer’s employment shall be entitled to the same compensation and expenses from the former employing law enforcement agency as an officer on active duty under the same circumstances.
So let’s try to figure this out:
- First, you have to look at MCA 25-7-61 to determine what “pay per day as is set by the board of supervisors … for service as a juror …” To arrive at that figure, you’ll have to consult with your board of supervisors, because the statute allows them to set the fee between $25 and $40 per day.
- Second, you will have to read and decipher what is the allowable mileage reimbursement under MCA 25-3-41. Good luck with that. If you conclude as I do that the applicable rate under MCA 25-7-41 is the county reimbursement rate, then MCA 25-3-41(2) applies, and it allows a mere twenty cents per mile unless the board of supervisors has adopted the mileage reimbursement rate allowable for state employees.
Bottom line is that your per diem cost to obtain a witness’s attendance has gone up from $1.50 to somewhere around $25 – $40 per day of attendance. That does not include mileage, which must be computed in addition to the per diem. I doubt that there are any boards of supervisors clinging to the antiquated twenty-cents mileage rate. The state mileage reimbursement rate now is $.565 per mile. If your supervisors have adopted the prevailing state rate, then you are looking at paying your witnesses more than 10 1/2 times more than the current five cents per mile statutory rate.
Hypothetically, then, if your non-party witness has to travel 17 miles to court, and your board of supervisors has adopted $40 a day for jury pay and mileage at the state rate, and there are no ferries or tolls to pay, then you now have to tender that witness $59.21 ($40 per diem, plus 34 mi. x $.565) each day for attendance. The cost before the amendment would have been a mere $3.20 ($1.50 per diem, plus 34 mi. x $.05).
For lawyers who are going to observe the requirement of R45, this should have a dampening effect on the vexatious practice of issuing subpoenas for 30 witnesses for trial and calling only four. It should also discourage those lawyers who like to subpoena a witness aligned with the other side, and then to keep that witness waiting in the hall two, three or four days, only calling him or her for a few brief questions at the end of the trial. Both unprofessional practices will now be more expensive than one could reasonably justify to a paying client.
As I said, these new rates are in effect now, and have been since July 1, 2014.
NOTE: In East v. East, 775 So. 2d 741, 747 (Miss. Ct. App. 2000), the COA ruled that a witness who had not been tendered payment per R45 had not been properly served. Who gets to raise the issue? In Roberts, it was the witness himself who brought up the matter via ex parte communication with the judge, which the COA did not find improper. No doubt the affected witness may always raise the non-payment issue, but may a party? Stay tuned.
Thanks to Anderson for the cite to Roberts in a comment to this post.
Bound by the Record
June 5, 2014 § 4 Comments
It’s axiomatic that if you don’t introduce evidence to support a particular claim, your trial judge can not grant your client that relief.
It’s also axiomatic that, if you don’t make a record on a given point, you may not raise it for the first time on appeal.
Those two principles are what tripped up Donald Ainsworth in his attempt to reverse a chancellor’s ruling that based child support on all of his income, including annual bonuses and commissions from vehicle sales. Judge Carlton, writing for the COA in its opinion in Ainsworth v. Ainsworth, issued May 27, 2014, explained:
¶16. Donald argues the chancellor erred in determining his income for child support. Donald claims his yearly bonus and income from vehicle sale are not regular income for purposes of calculating child support. We first note Donald failed to raise the issue of his yearly bonus in his motion for reconsideration. It is well settled that an issue raised for the first time on appeal is barred from our review. See Ory v. Ory, 936 So. 2d 405, 409 (¶9) (Miss. Ct. App. 2006). Thus, we will only review Donald’s argument concerning income from vehicle sales.
¶17. The chancellor calculated Donald’s adjusted gross monthly income to be $4,562, which consisted of his salary, his bonus, and profits from vehicle sales. Following the statutory guidelines in Mississippi Code Annotated section 43-19-101(1) (Supp. 2013), the chancellor ordered Donald to pay $912.40, or twenty percent of $4,562, per month in child support. The chancellor noted that Donald admittedly failed to report income from any vehicle sales on his Rule 8.05 financial statement. The chancellor also noted Donald had failed to comply with her temporary order of December 2, 2010, which required Donald to report the sales of any vehicles to Melanie and to deposit the money from the sale of these vehicles into the registry of the court. During trial, Donald admitted that he made a small profit 3 from vehicle sales but purposefully did not report the sales of these vehicles, either to the chancery court or to the state or federal government for income-tax purposes. Donald also claimed he had no documentation by way of receipts or invoices for the sale of these vehicles. Donald testified he intended to continue selling vehicles and anticipated similar profits.
¶18. With respect to the chancellor’s finding, this Court cannot find the decision to include Donald’s profits from vehicle sales in her calculation of child support to be clearly erroneous. “The chancellor, being the only one to hear the testimony of witnesses and observe their demeanor, is the sole authority for determining the credibility of the witnesses.” Madden v. Rhodes, 626 So. 2d 608, 616 (Miss. 1993). Accordingly, we find this issue to be without merit.
The court also swatted aside: (1) Donald’s argument that the chancellor erroneously ordered him to pay a share of the children’s extracurricular activities; and (2) the court’s award of the tax exemptions to his ex-wife. Both arguments were rejected because he “failed to raise this issue in his motion for reconsideration.”
A few comments:
- A R59 motion is the vehicle you need to employ to bring to the chancellor’s attention matters on which you offered proof at trial, but were not addressed by the judge. Unless it is crystal clear from a reading of the trial transcript that you offered proof to support a given claim, you can not assume that the appellate court or the trial judge will view it that way. In this case, for instance, Donald may have thought that admitting his tax return into evidence was enough to preserve the tax exemption claim, but that evidence goes to many points in a contested divorce trial. File a R59 motion and specifically point to the proof in the record that supports your claim, and give the judge a chance to rule on it. That preserves the point for appeal.
- If you don’t offer any evidence at trial to support a claim, it won’t do you any good to file a R59 motion because the judge has to have evidence in the record to support her findings.
- If you don’t offer any evidence at trial to support a claim, you not only lose that point at trial, but you also are barred from raising it for the first time on appeal. I am constantly amazed at how many attorneys simply do not put on proof in support of their claims. A good example is the request that a child support payor maintain a life insurance policy. Usually the only evidence is a witness saying that she wants him to have a policy. There is no testimony about the cost, or whether the payor is insurable, or anything else that would influence me one way or the other.
- The only exception to the above is where there is newly discovered evidence that could not have been discovered in time to file a R59 motion. In that case, you need to file a R60(b)(3) motion.
I’ve mentioned here before that there is no “motion to reconsider” in our practice. That terminology is usually used to describe a R59 motion, but a R59 motion is actually for rehearing, or a new trial. Actually, though, there is such a thing as a motion to reconsider. Can you find it? [Hint: check out R60(c)].
The Nefarious Practice of Trial Briefs
May 7, 2014 § 11 Comments
The COA case of Dean v. Slade, et al., decided April 22, 2014, references a practice that I consider to be deceptively nefarious.
It’s the practice of presenting the trial judge in advance of trial with a document discussing the anticipated testimony and exhibits, the applicable law, and argument on the merits. These offerings are variously styled as “Trial Brief,” or “Trial Memorandum,” or the like.
In Dean, the content of the trial brief is described by the COA as ” … a summary of facts and the pertinent law on adverse possession.” The COA rejected the appellant’s argument that it was an improper ex parte communication because he had failed to raise it in an earlier appeal on the merits, and the court held that he could not relitigate the issue in this later appeal on other issues.
The COA did not address the propriety of this practice because that issue was not squarely presented, but it is a practice that I think needs to be addressed.
In a custody case I tried before the turn of the century, counsel opposite presented the judge at the opening of the trial with a so-called “Trial Binder” that included summaries of the expected testimony of each of his side’s witnesses, a copy of each exhibit he expected to offer in evidence, and a brief setting forth his argument on the law applicable to each contested issue. I vigorously objected, arguing that the documents included inadmissible hearsay, that some of the witnesses, some testimony, and some exhibits may not even make it into evidence, and that it was improper to attempt to influence the judge in that manner. The judge swept aside my objections, stating that there had been exhaustive discovery, and that she was sure there were no surprises. After a five-day trial, the judge ruled in favor of the other party. We appealed and the COA reversed on other grounds. The issue of the trial binder was not raised; there was enough other error that we did not need it.
A lawyer in this district told me of a recent experience he had in north Mississippi. He said that he was handed a “Trial Brief” immediately before the opening of trial, and was pretty steamed to see a certificate of service showing that a copy of the document had been mailed to the judge several days before. The trial brief included all of the same type information described above. When the chancellor opened court, the lawyer stood to voice his objection, but the judge cut him off with the announcement that he had received the trial brief, and when he discovered what it was, sealed it back in its envelope and set it aside without reading it. When his staff attorney told him that she had also received a copy, he directed her not to look at it either.
Good for him.
The chancellor’s job is to hear and consider all of the admissible evidence taken in open court, and to make an independent, impartial decision, untainted by outside information or influence. As the COA said recently in Burnham v. Burnham, “Chancellors are charged with the duty of being independent fact-finders … ” To me, these so-called trial briefs are nothing more than a naked attempt to influence the trial judge with information on the merits outside the trial that may be inadmissible and even inflammatory. I think it’s fair to say that it’s an underhanded way for an attorney to get the judge to see and possibly consider evidence that the lawyer knows he will be unsuccessful in getting into evidence at trial.
When a chancellor says, “Let it be admitted into evidence,” what she is really saying is, “I can hear or look at this evidence because it meets the threshhold requirements of the rules of evidence.” That can only be done in the context of a trial, where both sides have the opportunity to object and cross examine.
Another aspect of the experiences noted above is the ex parte nature of the communication. As I have pointed out here before, just because you hand opposing counsel a copy of the document that does not mean it is not earwigging. Uniform Chancery Court Rule (UCCR) 3.10 states in part:
No person shall undertake to discuss with or in the presence or hearing of the Chancellor the law or the facts or alleged facts of any litigated action then pending in the Court or likely to be instituted therein, except in the orderly progress of the trial, and arguments or briefs connected therewith. No attempt in any manner, except as above stated, to influence the Chancellor’s decision shall be made.
That reference to briefs in the rule does not alter, amend or cancel the language preceding it.
In Dean, the trial memo called into question the impartiality of the sitting chancellor to the extent that she recused herself from further participation in the case. The same can happen in your cases.
The only way that a pre-trial brief can be proper, in my opinion, is if a chancellor asks the parties for one addressing certain matters in advance of trial. Assuming it asks for argument on the law, I would think that would be perfectly permissible, because it puts both sides on an even footing. I can hardly imagine a chancellor, though, who would ever ask parties to include prospective evidence in the submission. The law, yes; evidence, no.
In my court, I would be offended by an attempt to present me with extra-evidentiary material in a matter pending before me. I believe most chancellors would agree, or at least would do as the north Mississippi chancellor did in his case. I want my opinion to reflect only what is in the record (sometimes I do a better job of that than other times), and nothing more. The old saying, “You can’t unring a bell,” is applicable here.
I wish there were an explicit ban against this practice. Maybe a rewording of UCCR 3.10 is in order.
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