Practice and Procedure | The Better Chancery Practice Blog

Opinions: Everybody has One

April 10, 2014 § 1 Comment

I won’t repeat the old saying about opinions being like a particular part of the body, everybody has one. Or maybe I just did.

Lay opinion testimony seems to draw objections like flies to day-old watermelon, but the rule on lay witnesses offering their opinions is pretty straightforward. MRE 701 says:

If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to the clear understanding of the testimony or the determination of a fact in issue, and (c) not based on scientific, technical or other specialized knowledge within the scope of [testimony by experts].

That is all there is to it. Oh, and MRE 704 abolishes the old “ultimate issue” rule, which means that, if the lay person’s testimony meets the criteria of R701, it matters not at all whether it embraces an ultimate issue to be decided by the trier of fact.

So, if the witness is opining “rationally based” on his or her own perception, and it aids the fact-finder, and is not based on scientific or technical knowledge, it should come in.

Some examples:

The detective opined that a particular document was not on a hard drive that he had examined. The court found it to be valid lay opinion because almost everybody nowadays has some knowledge of computer hard drives. Boone v. State, 811 So.2d 401 (Miss. 2001).
Lay witnesses may offer their opinion whether someone had too much to drink or was intoxicated. Havard v. State, 800 So.2d 1193 (Miss. App. 2001).
A lay witness may offer an opinion as to how fast, in mph, a person was driving, based on what he observed. Moore v. State, 816 So.2d 1022 (Miss. App. 2002).
A licensed counselor could not offer lay opinion testimony about whether the wife was addicted to internet pornography because he did not have personal knowledge of the extent of her use of the internet. Bower v. Bower, 758 So.2d 405 (Miss. 2005).

Remember that if you try to offer lay opinion testimony and the judge sustains an objection to the offer, you must preserve the point by making an offer of proof. If you don’t, you can’t argue the point on appeal. See, Redhead v. Entergy Miss., Inc., 828 So.2d 801 (Miss. App. 2001).

Don’t assume that if your expert witness is excluded that you will be able to get that witness’s same testimony as lay opinion. As the Bower case above illustrates, the lay witness must have some perception of the event — some personal knowledge — and if he does not, his testimony would be inadmissible. Many experts have only theoretical knowledge upon which to base an opinion.

One mistake inexperienced lawyers make is to ask lay witnesses who actually saw or experienced an event their opinions about it. Most of the time it is far more powerful and effective to ask the witness to relate what she saw, felt, smelled, or heard. For example: “Can you tell me whether Johnny was dying?” is far less effective than to ask, “Tell us what you observed about his head when you arrived.” Answer: “His face was smashed up; his skull was cracked open so you could see his brains, he was covered with blood; blood was spattered on the wall behind his head, his eyes were rolled back, and he wasn’t breathing.”

Lay opinion testimony can be a useful tool in many trials, particularly in family law cases. Standing alone it may not carry the day for you, but it could be just the featherweight of advantage you need to tip the scales in a close case.

The Electronic Client

April 2, 2014 § 6 Comments

Even though my practice has been closed more than seven years, I continue to get emails from “prospective clients” about possible representation, I guess because my email address is registered with the MSB. (Memo to self … do something about this).

I say “prospective clients” because they claim to be seeking representation, but I believe they are as bogus as [supply your own simile]. All of their emails bear a resemblance to those of the Nigerian scammers who rained get-rich-quick schemes down on American lawyers and bankers for years like some kind of perseid meteor shower of fraud.

In only the past few weeks, I have received a dozen or so emails asking my help in various legal matters.

One lady wants me to collect a judgment from her ex-husband who is around $800,000 in arrears in child support, alimony and medical expenses. Ouch. No idea where he lives. I’ve gotten several from her.
Another, “Mrs. H,” simply wants “legal advice.”
Yet another, with a Latina surname, who says she is “on assignment in Hong Kong,” wants me to collect more than $800,000 (hmmm … that’s a familiar amount) from her ex “who lives in North America.” Yes, that narrows things down nicely.
A man (supposedly a man, that is) emailed me to say that he had called my law office and was informed that I was out for several days, so he was contacting me by email. That’s interesting, because I thought I had closed my law office in November, 2006, before taking the bench. I’ll have to check into that.

Those are only from last week. Earlier in the year I had a couple of emails from an alleged architect who wanted my help collecting a big fee, a few with the usual inheritance-hung-up-in-the-UK scam, and so on. I have been tempted to respond to one of these simply to discover how these get-rich-quick schemes operate, but my better judgment persuaded me that I might get haplessly get sucked into something too big to extract myself from, so I passed.

When I practiced, clients dropped by the office and we talked until we reached a mutual decision about engagement. Habitual clients sometimes re-engaged via phone. But picking up clients by email was not done. I wonder whether that’s changed.

I can see someone making an email first contact, along the lines of “My cousin Joe Smith whom you represented in a child custody case referred me to you. Do you handle collection of child support in Jones County? If so, I would like to make an appointment.”

But until I met that emailer, and looked over her paperwork, and we could discuss a fee arrangement eye to eye, I think I would not be interested in getting involved. I would want to size up her demeanor, ask questions about the case, and get the details about how she got where she is. There may be other claims she can and should assert. I don’t know how to flesh all that out in email.

A lawyer complained to me last week that, since he enrolled in electronic filing, he has started getting emails from clients. I gathered from the tone that he did not regard it as a welcome development. He is an older lawyer, and most likely does not use email much, and probably not at all up to now in the practice of law. Email has probably passed him by.

Not so with the younger lawyers. I have heard them talk of having to respond to this or that email from clients. One recently told me of an ongoing email argument with a client over how to handle a certain matter. She said she spent most of an entire weekend engaged in a back-and-forth with the client. That’s a novelty to me. I never spent much time arguing with clients in any form or fashion. If the client thought he could do a better job than I, well then, have at it. I have other things I could be doing that are probably less stressful.

Judiciously used, email could be a great tool for communications with clients in family law matters. Notice of settings and appointments, reminders of deadlines and need for documents, questions needed to answer discovery, all are legitimate uses. But the familiar family law routine of unending what-if questions, the constant need for reassurance, the minor gripes and complaints about the other party and his scurrilous relatives, the drama, all should be reserved for the in-person meeting. You can control office times and appointments, but email is 24/7. If you don’t limit your contact, you could face a never-ending barrage of emails that demand constant attention until you burn yourself out trying to keep up. And the more you respond and reciprocate, the more you are elevating your client’s expectations about this form of communication and your willingness to participate in it.

That’s my take, admittedly out of the practice loop these past seven or so years. Do you see it differently?

Connected to the Court

March 28, 2014 § 4 Comments

Lauderdale County Chancery Court implemented electronic filing this year, and it became mandatory March 1. I have informally polled lawyers about their experience with and views of the system. Here is the feedback from my random, unscientific survey:

“I hate it.”

“I’m having trouble signing on, but once I get that straightened out, it should be no problem because I use PACER and file electronically in Alabama.”

“I am still trying to learn it, but so far I don’t care for it.”

“My secretary does it; I haven’t heard anything negative from her.”

“It’s okay.”

“I think it will be fine once I learn how to do it.”

“The categories for pleadings don’t fit.”

“No big deal. It’s the same as federal court.”

“Maybe when I get used to it, it will be good.”

“It’s an improvement.”

“It makes it easier for me to stay on top of my cases.”

“I had to update my computers and internet connection, so that was probably good. I’m getting the hang of it.”

Stay tuned for further developments over here in the far east.

How Not to Propound Discovery Requests via Email

March 18, 2014 § 5 Comments

If you’re like me, this entry among the MSSC hand-downs last Thursday had you scratching your head:

EN BANC
2013-IA-01784-SCT

Amber Olsen Johnson v. Walter Thomas Johnson; Madison Chancery Court; LC Case #: 2012-0921; Ruling Date: 10/14/2013; Ruling Judge: Janace Goree; Disposition: The Petition for Interlocutory Appeal filed by Petitioner is granted. This matter is remanded to the Madison County Chancery Court for entry of an order denying Respondent’s Motion to Compel in cause no. 2012-0921. The notice of appeal having been deemed filed, the filing fee is due and payable to the Clerk of this Court. The Respondent is taxed with all costs of this appeal. To Grant and Render: Waller, C.J., Dickinson and Randolph, P.JJ., Lamar, Kitchens, Chandler, Pierce and King, JJ. To Grant: Coleman, J.; Randolph, P.J., for the Court. Order entered.

An interlocutory appeal is granted and the chancellor is ordered to enter a discovery order. What exactly is going on here?

After I read Jane’s and Anderson’s blog posts on the ruling, it was much clearer.

It seems that the trial court had granted a motion to compel based on a R34 request for production of documents (bank records) that was directed via email to an employee of opposing counsel, and not to opposing counsel herself. Petition was filed for an interlocutory appeal from the order. The MSSC accepted the appeal, dispensed with briefing, and ruled that an email request made by counsel for one party to an employee of counsel for the other party does not meet the notice requirements of MRCP 5 and 34.

Jane includes the transcript of the trial-court proceedings, in which counsel for the party seeking discovery argues that an email request, no matter how informal, complies with the requirements of R34, which only requires a writing. The MSSC did not directly address this particular point.

The two points to take away from this are:

Sometimes we get accustomed to dealing with a particular paralegal or other staff in opposing counsel’s office. Notice to that staff member will not suffice as notice to the attorney under R5 or R34. Here, the missing component was either an automatic electronic acknowledgment of receipt from the attorney, or the attorney’s separate acknowledgment, either of which is required in R5. The acknowledgment of a staff member does not satisfy the express requirement of R5 that it be made by the attorney.
If you find yourself scratching your head over some hand-down of the appellate courts, it might pay you to take an extra three minutes to look up the order behind it. If you don’t, you might miss something that could impact a future case of yours.

Thanks to both Jane and Anderson for posting on this, and to Beverly Kraft for calling it to my attention.

Grass Roots Rules of Court

March 17, 2014 § 9 Comments

Before you set off on a trek to a far-flung chancery court district, it would behoove you to discover how they do business there. As an example of what a lack of behooving can do for you, consider my own rueful experience:

Years ago I called a court administrator in a distant county and told her I wanted to set a motion for a hearing. She gave me a date, and I, in turn, gave her the CA number, the parties, my name, and that of opposing counsel. I filed my motion, sent out the notice of hearing and, on the day appointed, travelled 90 miles or so to court.

I noticed when court opened that opposing counsel was not there. The judge called the docket and my case was not there, either. I approached the bench after docket call and inquired about my motion hearing. The judge flipped through the file and pointed out that I had not obtained a fiat setting the case for that day. Ergo, no setting. A fiat to set the hearing was required in that district by local rule.

A fiat, as anyone who operated in the pre-MRCP legal world can tell you, is simply an order directing that process or notice of hearing be issued for a given day. It’s the court’s way of ensuring that the case is set for an appropriate day. And it’s that district’s way of complying with R81(d)(5), which says that the date for a hearing in a matter like that “… shall be set by special order, general order or rule of the court.”

Had I bothered to look for a local rule, I would have gotten that fiat before setting the hearing, and I would not have wasted a trip.

In this district, where we have no local rules, a lawyer simply calls the court administrator, finds a date assigned by the court for hearing of matters such as the one the lawyer desires to set, and notifies the court administrator of the identity of the matter being set, and the time required. The lawyer then notices it for hearing, either via R81 or R5, whichever applies.

In the first instance above, the hearing is set per local rule, and in the second, by R81.

So, how do you discover how to do it?

You can find a complete set of local court rules approved by the MSSC at MC Law’s Mississippi Legal Resources web site. While I’m on the subject, that site is a super resource where you can find instant access to all kinds of Mississippi legal resources that you use daily. And it works as a mobile app, too. You can also find the local chancery court rules on the MSSC’s Mississippi Judiciary site at this link.

Note that all local rules must be approved by the MSSC before taking effect. They must be consistent with the MRCP, and, in the event of a conflict, the MRCP prevails.

Of the now-existing twenty chancery districts, thirteen have their own local rules, and seven do not. The seven districts without local rules are:

Third. (DeSoto, Tate, Panola, Yalobusha, Grenada and Montgomery). Chancellors Cobb, Lundy and Lynchard.
Ninth. (Humphreys, Issaquena, Sharkey, Sunflower, Warren and Washington). Chancellors Barnes, Weathersby and Wilson.
Twelfth. (Lauderdale and Clarke). Chancellors Mason and Primeaux.
Thirteenth. Local rules repealed in 2006. (Covington, Jefferson Davis, Lawrence, Simpson and Smith). Chancellors Shoemake and Walker.
Fifteenth. (Copiah and Lincoln). Chancellor Patten.
Eighteenth. Local rules repealed in 2006; BUT SEE ERRATUM BELOW. (Benton, Calhoun, Lafayette, Marshall and Tippah). Chancellors Alderson and Whitwell.
Twentieth. (Rankin). Chancellors Fairly and Grant.

ERRATUM: The 18th District Rules were renumbered and codified by order entered May 18, 2006, but not repealed. I apologize for the mistaken information.

In the districts without their own local rules, you can call the court administrator, who should be able to help you get done what you need to get done. If you encounter a judge who has no court administrator whom you can identify (I know of only one), you might try calling the clerk first, and, if that is unproductive, then call one of the court administrators of another judge in the district.

NOTE: Since grass is green, the title of this post qualifies as appropriate for St. Patrick’s Day.

And thanks to attorney Sean Akins of Ripley for pointing out my error about the 18th District.

Wrongful Death and Chancery Court

March 6, 2014 § 3 Comments

If you are going to do any wrongful death practice at all, you must familiarize yourself with the MSSC’s decision in the seminal case of Long v. McKinney, 897 So.2d 160 (Miss. 2004), reh den. April 7, 2005.

The decision clarifies many important concepts involved in wrongful death claims, including priority of jurisdiction, the distinction between heirs and wrongful death beneficiaries, allocation of attorneys fees, costs and expenses, representation, conflicts of interest, and control of litigation.

What is important in this case to the chancery practitioner, however, is Justice Dickinson’s exposition on the role of chancery court.

There is much confusion in the bar, and perhaps the bench as well, about exactly what is the proper role of chancery court in wrongful death. Justice Dickinson expounds:

¶59. Perhaps no aspect of wrongful death litigation is more misunderstood and misapplied than the role of the chancery court.[Fn 13] With respect to a wrongful death suit to be pursued in circuit court, chancery jurisdiction should be invoked for the following purposes:

Fn 13. The misunderstanding can be partly attributed to the Uniform Chancery Court Rules, which address petitions for authority to compromise, and petitions for allowance of attorney fees, in wrongful death suits. U.C.C.R. 6.10, 6.12. These rules apply only to wrongful death suits which require chancery jurisdiction. See discussion infra.

Estate.

¶60. In the event the litigants wish to pursue a claim on behalf of the estate of the deceased, [Fn 14] such estate must, of course, be opened and administered through the chancery court. As is true in all estates administered through the chancery court, chancery approval is required for the appointment of the personal representative of the estate, whether executor, executrix, administrator or administratrix.

Fn 14. We recognize that, because of the limited recovery available to the estate in many cases, litigants may choose, with advice of counsel, to proceed without including a claim on behalf of the personal representative or the estate. As discussed infra, such decision should be made only after full disclosure to all who might benefit from the estate.

¶61. There is no general requirement under law that the personal representative obtain chancery approval to pursue the claims of the estate in the litigation. Nor is there a general requirement that counsel representing the personal representative and the estate in the litigation obtain prior chancery approval of such representation or the agreement for compensation of counsel. However, obtaining such prior approval is a widely accepted and wise practice.[Fn15] Such prior approval will, in most instances, avoid difficulty when the chancellor is approached for an order approving the accountings and the final distribution of estate proceeds, where such payments include compensation to counsel.

Fn 15. This is especially true where counsel representing the estate in the wrongful death litigation has not agreed, and does not intend, to represent the estate generally.

¶62. Where a recovery is had by the estate in the litigation, the proceeds must be administered and distributed though the chancery court in the same manner as other assets of the estate, and counsel for the estate must be paid from estate proceeds or assets, upon approval of the chancery court in the same manner as other debts and obligations of the estate. * * *

Minors.

¶66. Frequently, wrongful death litigation will involve a minor, either as an heir of the estate, a wrongful death beneficiary, or both. In such cases, the representation of the minor’s interests, and any agreement for the payment of attorney fees from the minor’s share of proceeds, must be approved by a chancellor, as in other cases. [BCP Note: settlement of the minor’s claim must also be approved by the chncellor, in the same manner as any other minor’s settlement.]

Determination of wrongful death beneficiaries.

¶67. Section 11-7-13 provides that wrongful death litigation may be brought by the personal representative of the deceased or by any one or more of several statutory beneficiaries, for the benefit of all entitled to recover. Unless all persons entitled to recover join in the suit, those who do have a fiduciary obligation to those do not. Miss. Code Ann § 91-1-27 (Rev. 2004) provides for a chancery determination of the heirs at law of a decedent; that is, those who inherit in the absence of a will. Although our statutes mandate no specific procedure for the identification of wrongful death beneficiaries, a chancery court may make such determinations. Those bringing the action, together with their counsel, have a duty to identify the beneficiaries, and they should do so early in the proceedings. [Fn 16]

Fn 16. Recognizing that the lack of a specific procedural framework for determining wrongful death beneficiaries is a handicap for practitioners, this Court – in its continuing review of procedural rules – will address this need.

One of the biggest sources of confusion, in my experience, is the disconnect between the status of persons as heirs and as wrongful death beneficiaries. The categories overlap, but they are not the same. A person may be a wrongful death beneficiary, and yet not be an heir. You need to read and stidy the statutes to learn the difference and to be able to identify all of the individuals who must be included. Merely filing an action to determine and discover unknown heirs at law will not identify all the wrongful death beneficiaries.

From a chancellor’s perspective, I think the most important aspect of all is that of the minor’s settlement. You can make any agreement in circuit court about how to settle the wrongful death action, but you can not tie the hands of the chancellor as to whether the settlement is reasonable or adequate for the child(ren), or as the amount of fees to which it is subject, or to its amount.

Past Recollection Recorded

March 4, 2014 § Leave a comment

We talked in a post here last week about how to cope with the forgetful witness. That post focused on refreshing the present recollection of a witness with a writing or other object per MRE 612. Once the witness’s ability to recall has been restored, the witness may then go forward with his testimony.

But how does one handle the case where the witness simply has no present recollection whatsoever, even after your best effort under MRE 612?

Well, if the witness has no recollection whatsoever, the witness should be excused, because he does not meet at least one of the most basic criteria of a competent witness, which are the ability to recall and relate truthfully. MRE 601, 602, 603; See, e.g., Goforth v. State, 70 Miss.3d 174 (Miss. 2011).

If, however, the witness once did have personal knowledge, but now has insufficient recollection, and there is a record made or adopted by the witness while the matter was fresh on his mind, MRE 803(5) gives you a way to get those matters before the court.

Here are the steps:

Establish that the witness once had personal knowledge of the matter, but now has insufficient recollection to testify independently, fully and accurately.
Establish that there is a written or recorded record of the matter that was made by or adopted by the witness while it was within his memory and was within his knowledge.
Have the witness confirm that it correctly reflects the witness’s knowledge at the time.
Ask that the statement be admitted. If the court deems it admissible, then MRE 803(5) provides that it “may be read into evidence,” but it is not itself received as an exhibit unless offered by an adverse party. This is a somewhat curious procedure, and I have never seen it done this way, but that is what the rule dictates.

An example of MRE 803(5) in action is where a physician is called as a witness to testify about a person’s physical and medical condition when the doctor examined him. She has no independent recollection on the day of trial of this particular patient’s condition as it existed at the time in question, but she has her patient record, either dictated by her at the time or recorded by a nurse or aid and adopted by the doctor as an accurate reflection of the facts while they were fresh in her memory. See, e.g., Harness v. State, 58 So.3d 612 (Miss. 2009).

MRE 803(5) and 612 are two excellent tools at your disposal to overcome the dilemma of the witness stranded alone on the witness stand devoid of memory.

When a document is admitted into evidence, or the court overrules an objection allowing a witness to testify as to a particular point, all that means is that the information gets to the judge either in the form of something that the judge can look at and study, or verbally. Either way, when it is in evidence, it is fair game for the court to weigh and take it into account in its ruling. It’s your job to get those key items into the judge’s hands to look at, or into the judge’s ear.

When you quit thinking about the MRE as a collection of obstacles to the admission of evidence, and begin seeing them in terms of how they offer you many portals to the court’s consideration, you will find your trials a whole lot easier and more successful.

Refreshing Recollection

February 27, 2014 § 3 Comments

The forgetful witness can be the bane of even the most accomplished barrister. Faced with what could prove to be a fatal memory lapse, lawyers twist themselves into proverbial pretzels cajoling, wheedling, leading, suggesting, and — when those ploys don’t work — yelling, at witnesses whose memories somehow have escaped them altogether.

To compound matters, counsel opposite, perhaps stimulated by the scent of blood in the water, pounces shark-like with a confounding flurry of objections, insisting that since the witness says she does not remember, no further questioning on the point should be allowed.

It doesn’t have to be so complicated, however.

Mississippi law has long recognized the right of a witness to have her memory refreshed, and our law has allowed anything to be used to refresh independent recollection. Refreshing recollection is not limited to written documents. As MRE 612 states “If a witness uses a writing, recording or object to refresh his memory for the purposes of testifying …” Or, as a law professor eloquently put it, you can use a pencil or a flower pot, if that will do the job.

Bear in mind that the process of refreshing recollection is intended to restore the witness’s independent recollection of a matter. It is not a process of educating a witness about matters beyond his ken, nor is it a backdoor path to admission of an otherwise inadmissible item. Once the witness’s recollection has been restored, the witness continues her testimony based on her now-restored recollection, independent of the refreshing item.

Here are the proper steps:

Establish that the witness is unable to recall a particular thing.
Counsel may then use leading questions to refresh the witness’s memory (e.g., “Ms. Jones, don’t you recall telling me last week about the amount of money you deposited into that account?”) See, e.g., James v. State, 86 So.3d 286 (Miss. App. 2012). Also, whether to allow leading questions is entirely within the trial court’s discretion. Dorrough v. State, 812 So.2d 1077 (Miss. App. 2001).
If the witness still can not recall, counsel may then show the witness the writing, recording or object, which the witness reads or looks at silently. An example: “Ms. Jones, let me hand you this deposit slip, and ask you to read it to yourself.”
Now the lawyer asks again if the witness now remembers after looking at the writing.
If the witness responds that she now recalls independently of the writing, her recollection has been refreshed and she may testify to that independent recollection, ideally not using the writing, recording or object further. I say ideally because there are plenty of reported cases in which a police officer, or deputy, or dispatcher has been allowed to continue to use case reports and notes after having recollection refreshed. See. e.g., King v. State, 615 So.2d 1202 (Miss. 1993).
If the witness still can not recall after looking at the writing, then the lawyer may have to resort to MRE 803(5), which we will look at in a later post.

MRE 612 requires that the opposing party be provided with a copy of the item if it is used for refreshing memory while testifying, and to cross examine the witness about it, and to have relevant portions admitted into evidence. If, on the other hand, the witness uses an item to refresh before testifying, then it is within the court’s discretion whether counsel opposite should have a copy if the court determines that “… it is necessary in the interests of justice …” Any part of the item or writing that the court orders not to be admitted into evidence is required to be preserved in the record for appeal. The court may make any order it deems necessary to effect the intention of the rule.

The best evidence rule does not apply to writings used to refresh recollection. Hunt v. State, 687 So.2d 1154 (Miss. 1997).

The comments to the rule say that it was intended to end pre-rules confusion between simply refreshing the witness’s independent recollection (MRE 612) and laying the foundation for admission of a recorded recollection as an exception to the hearsay rule (MRE 803(5)). In my experience, that confusion sadly persists despite this rule.

In a nutshell, here is the distinction: (a) Rule 612 instructs us on how to refresh a witness’s present recollection. That is, the witness at the time of trial can testify as to his recollection of what happened, but his recollection needs to be refreshed before he can testify. After looking at the item, the witness’s recollection is restored, enabling him to testify from memory. (b) Rule 803(5) tells us what to do where a witness once had personal knowledge, but now has insufficient recollection to be able to testify, and the witness made an accurate record of his observations when the event was fresh on his mind.

An important caveat: Before you stick something under the witness’s nose to refresh his recollection, be aware of what it is that you are handing to your opponent, because that is what you are doing when you offer it to your client. In a case I tried years ago, a key witness was hazy about details of an important event that would affect the outcome of the case. In an effort to jog her memory, her lawyer asked her whether there was anything that would help her recall the details. She said she could recall if she could look at a sheaf of notes she had left on counsel’s table. Without even glancing at them, the attorney handed them to her, whereupon I demanded to look over the papers. There, in the witness’s own handwriting, were dozens of statements that contradicted her own testimony to that point, flatly contradicted her deposition testimony, and aided us immensely in her impeachment. And it was handed to us by her own attorney.

Which Post-Trial Motion You Choose Can Make all the Difference

February 25, 2014 § 3 Comments

James Loftin was notified that his contract for employment as school superintendent would not be renewed, and he filed a request with the chancery court for a hearing, as provided in MCA 37-9-101 through -113.

On April 16, 2012, Loftin filed a public records request with the school district.

The non-renewal hearing went forward on April 27, 2012, despite a pre-hearing motion that Loftin had filed asking that it be delayed so that his public records request could be addressed. On July 12, 2012, the judge ruled that Loftin had waived the public records request because he had allowed the hearing to go forward. The ruling on the non-renewal was not in his favor.

Loftin filed a motion for reconsideration [you can read another post at this link on whether there is such a creature in Mississippi procedure] on July 24, twelve days after the court’s ruling.

On October 24, 2012, more than 100 days after the final ruling on the merits, the court overruled the motion for reconsideration, and Loftin filed his notice of appeal on November 2, 2012.

In the COA case of Loftin v. Jefferson Davis County School District, handed down February 18, 2014, the court affirmed the chancellor’s denial of the motion to reconsider. Judge Fair, for the majority, explained:

¶4. “A timely-filed notice of appeal is a jurisdictional prerequisite to invoking [appellate] review, and we review jurisdictional matters de novo.” Calvert v. Griggs, 992 So. 2d 627, 631 (¶9) (Miss. 2008). “[T]he time to file a notice of appeal is a jurisdictional issue that cannot be waived by the parties.” Dawson v. Burt Steel Inc., 986 So. 2d 1051, 1052 (¶5) (Miss. Ct. App. 2008).

¶5. At issue is what effect Loftin’s motion for reconsideration had on the timeliness of his notice of appeal. Motions for reconsideration are filed every day in Mississippi, but the Mississippi Rules of Civil Procedure do not specifically provide for them. McBride v. McBride, 110 So. 3d 356, 359 (¶15) (Miss. Ct. App. 2013). This Court recently summarized how they should be treated:

The Mississippi Rules of Civil Procedure provide two avenues to move the trial court to reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to alter or amend under Rule 59 or (2) file for a relief from a final judgment under Rule 60(b). The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b) motion.

A motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion. Consequently, a notice of appeal following the denial of a Rule 59 motion to reconsider encompasses both the denial of reconsideration and the underlying judgment.

But a motion to reconsider filed more than ten days after the entry of the judgment falls under Rule 60(b). And a Rule 60(b) motion does not toll the thirty-day time period to file a notice of appeal. So a notice of appeal following the denial of a Rule 60(b) motion to reconsider limits this court’s review to whether reconsideration was properly denied under Rule 60(b). This court has no jurisdiction to consider the merits of the underlying judgment.

Woods v. Victory Mktg. LLC, 111 So. 3d 1234, 1236-37 (¶¶6-8) (Miss. Ct. App. 2013) (citations omitted). The last day for Loftin to file his motion for reconsideration under Rule 59 was Monday, July 23, 2012. See M.R.C.P. 6(a). Loftin’s motion, filed on July 24, must be taken under Rule 60(b).

¶6. Rule 60(b) provides six bases for relieving a party from a final judgment:

(1) fraud, misrepresentation, or other misconduct of an adverse party;

(2) accident or mistake;

(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;

(6) any other reason justifying relief from the judgment.

Loftin’s motion for reconsideration makes none of those arguments. Instead, it simply contends that the petition should not have been dismissed under the facts and the controlling substantive law. Loftin obviously intended the motion to be considered under Rule 59(e), but because it was untimely, that ship has sailed. “An appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” Bruce v. Bruce, 587 So. 2d 898, 903-04 (Miss. 1991). Instead, “Rule 60(b) is for extraordinary circumstances, for matters collateral to the merits, and affords a much narrower range of relief than Rule 59(e).” Id. at 903. “Rule 60(b) motions should not be used to relitigate cases.” S. Healthcare Servs. Inc. v. Lloyd’s of London, 110 So. 3d 735, 742 (¶16) (Miss. 2013). Nor is a Rule 60(b) motion a substitute for a timely appeal. Id. at (¶14).

¶7. Loftin is not entitled to relief from judgment under Rule 60(b). We therefore affirm the trial court’s judgment denying Loftin’s motion for reconsideration.

Comments:

A R59 motion for a new trial or rehearing will stop the appeal deadline from running, but it must be filed within ten days of entry of the judgment.
A R60 motion does not stop the running of the appeal deadline.
Even if you style your motion as a R59 motion and ask for R59 relief, if you file it more than ten days after entry of the judgment, it will be treated as a R60 motion.
If you ask for relief under R60, you should spell out exactly what provisions of R60 you are invoking.
Remember that, as between R59 and R60(b), only a R59 motion will allow the appellate court to review the merits of the underlying judgment. An appeal from denial of a R60(b) motion limits the appellate court to a review of the denial of the R60(b) motion only.

Who has Standing to Appeal?

February 3, 2014 § 1 Comment

Whether a party has standing to appeal is a question that does not often surface in our courts, but it did in a recent COA case.

The case of Posey v. Pope and Posey, handed down January 28, 2014, offers an interesting scenario invoving a standing issue on appeal.

Madison Posey died in 2004, leaving approximately 138 acres of land to his surviving wife, Gladys. Madison and Gladys had four children: Dorothy, Willard, Robert and Paul.

Dorothy had been deeded 2 1/2 acres by her father in 1984, and she used another 25 acres of the 138 on which she built and maintained fences, cut timber, and constructed buildings.

Some time around 1994, Willard began using some 60 acres of the 138 from which he cut timber, sharing the proceeds with his mother. He never obtained a deed for any of the 60 acres.

In 2007, by two, separate deeds, Gladys conveyed 132 acres of land to Paul and Robert, retaining a life estate.

Dorothy and Willard filed suit to set aside the 2007 deeds on the grounds of undue influence and adverse possession. The chancery court concluded not only that the deeds should be set aside because they were procured by undue influence, but also that Dorothy and Willard had title by adverse possession.

Robert and Paul appealed only from the decision that Dorothy and Willard had title via adverse possession. They did not attack the chancellor’s ruling of undue influence.

Dorothy and Willard moved to dismiss the appeal on the basis that the court’s finding of undue influence deprived Robert and Paul of standing to appeal solely from the adverse possession ruling. The COA agreed, and dismissed the appeal. Here’s what Judge Barnes, writing for a unanimous court said:

¶7. “[P]arties have standing to ‘sue or intervene when they assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, or as otherwise authorized by law.’” DeSoto Times Today v. Memphis Publ’g Co., 991 So. 2d 609, 612 (¶8) (Miss. 2008) (quoting Fordice v. Bryan, 651 So. 2d 998, 1003 (Miss. 1995)). Clearly, as recipients of the deeds from Gladys, the Appellants had standing to participate in the underlying chancery court action.

¶8. However, as a result of the chancellor’s ruling of undue influence, which voided the deeds, the Appellants no longer maintained any property interest when the appeal was filed. “A party’s claim ‘must be grounded in some legal right recognized by law, whether by statute or by common law[,]’ and that party must be able to show that it has ‘a present, existent actionable title or interest.’” In re City of Biloxi, 113 So. 3d 565, 570 (¶13) (Miss. 2013) (quoting City of Picayune v. S. Reg’l Corp., 916 So. 2d 510, 526 (¶40) (Miss. 2005)). Since the Appellants do not appeal the chancellor’s decision to void the warranty deeds, they no longer possess a “present, existent actionable interest” in the property at issue. The Appellants have also acknowledged that, at the time of appeal, Gladys was the only person who would benefit from a reversal of the chancellor’s finding that the Appellees gained title through adverse possession. Consequently, we find the Appellants lack standing to appeal the chancellor’s decision.

The appellants argued that they had standing as “anticipatory heirs,” which the COA rejected for the reason that Mississippi does not recognize heirship status until a person has died. They also contended that Paul had obtained a POA from Gladys that empowered him to pursue litigation on her behalf, which the court also rejected because she had never joined in the action, either at trial or on appeal.

One significant reason you should be interested in this case is that it highlights how joinder and non-joinder of persons in litigation may have repercussions that you should consider well before you file the initial complaint and any counterclaim. This result would likely have been avoided had Gladys been brought in as a party.

Another reason is that you need to analyze the effect on your client’s interests of limiting issues on appeal. Reading between the lines in this case, it appears that Robert and Paul were doing their best to keep Gladys out of the cross-fire among the siblings (indeed, she died during pendency of the appeal), but the result was the end of their litigation. I’m not being critical of or even questioning any legal advice in this particular case, but as a matter of general principle, always exercise independent, objective judgment and give advice on how to proceed based on that judgment; never let the clients call the shots about who should or should not be included as a party, or what issues should or should not be pursued.

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