Refreshing Recollection

June 20, 2018 § Leave a comment

It happens sometimes that the witness simply can not recall something that you need to have in the record. Before you give up and move on to something else, consider MRE 612, which is entitled, “Writing Used to Refresh a Witness’s Memory.”

Actually, the title is a misnomer, because under MRE 612(a) you can use a “writing, recording, or object” to refresh the witness’s memory.

Here are the steps:

  1. Establish that the witness is unable to recall something;
  2. Counsel is unable to jog the witness’s memory through questioning. The court may allow leading questions;
  3. Counsel shows the writing, recording, or object to the witness and asks whether looking at it will help refresh her memory. If yes, she is allowed to read or look over it silently;
  4. If the witness after looking at it can then say she now recalls the matter independent of the writing, recording, or object, she may then testify to that independent recollection;
  5. If the witness can not recall the matter after that procedure, counsel may lay a foundation for admitting the writing’s, recording’s, or object’s contents under MRE 803(5), past recollection recorded exception to the hearsay rule (that’s for another day).

What is an “object?” The advisory committee note mentions a photograph as an example. But there is no requirement in the rule that the object have content or substance, as would a photograph, a map, or a hand-drawn sketch. In law school our evidence professor said that a pencil or a comb could be used, so long as they would help refresh the witness’s memory.

When I practiced, I liked to do step 3 a little differently. I would ask the witness whether there was something that would help jog his memory. Most times the answer was something like, “Yes, if I could look over the inventory I made,” or something to that effect, I would then hand the witness what he identified.

Remember that under the MRE the writing, recording, or object used in R612 need not meet the requirements of past recollection recorded unless and until the witness has no independent recollection after looking at it and must use it to testify (e.g., “I don’t remember well enough to testify without referring back to this list …”).

 

Dodging the Summary Judgment Bullet

June 19, 2018 § 3 Comments

Daren Froemel filed a will contest claiming that his mother, Mary Lou, lacked mental testamentary capacity when she made her will. The beneficiaries of the will filed a motion for summary judgment with affidavits of the subscribing witnesses and others attesting to her mental capacity. Daren responded in an answer that the discovery revealed Mary Lou had been hospitalized at the time for “altered mental status,” and that she had been prescribed and was taking 22 different medications, including morphine. He argued that those facts established a basis to deny summary judgment, but he did not file counter-affidavits. The chancellor granted summary judgment in favor of the beneficiaries, and Daren appealed.

In Estate of Froemel: Froemel v. Williams, et al., handed down May 8, 2018, the COA affirmed. Judge Lee penned the unanimous opinion:

¶13. Here, the beneficiaries offered the will, and it was admitted to probate. Thus, they established a prima facie case regarding Mary Lou’s testamentary capacity. Additionally, when the beneficiaries moved for summary judgment in response to Daren’s contest, they attached four affidavits of individuals that testified as to MaryLou’s mental capacity. At this point, Daren was required to respond to the summary judgment motion with some evidence to rebut the beneficiaries’ prima facie case to show a genuine issue for trial. Daren, however, filed an answer in response—and nothing more—in which he reiterated that Mary Lou had been hospitalized for altered mental status and had prescriptions for twenty-two medications. Following the reiteration of these two facts, Daren stated in his response, “Clearly, a genuine issue of material fact exists in regards to the decedent’s mental state.”

¶14. It is well settled that “[t]he existence of a genuine issue of material fact will preclude summary judgment.” Calvert v. Griggs, 992 So. 2d 627, 632 (¶11) (Miss. 2008). However, we note that “[a] fact is neither material nor genuinely contested . . . merely because one party proclaims it so.” Suddith v. Univ. of S. Miss., 977 So. 2d 1158, 1167 (¶10) (Miss. Ct. App. 2007). “The mere allegation or denial of material fact is insufficient to generate a triable issue of fact and avoid an adverse rendering of summary judgment.” Kaigler v. City of Bay St. Louis, 12 So. 3d 577, 583 (¶27) (Miss. Ct. App. 2009) (internal quotation marks omitted) (quoting Palmer v. Biloxi Reg’l Med. Ctr. Inc., 564 So. 2d 1346, 1356 (Miss. 1990)). “More specifically, the plaintiff may not rely solely upon the unsworn allegations in the pleadings, or arguments and assertions in briefs or legal memoranda.” Id.

¶15. In the instant case, Daren rested upon the mere allegations in his pleadings and summarily concluded there was a genuine issue of material fact. While Mary Lou’s hospitalization and prescriptions the month prior to the execution of her will may have been important facts in this case, there was no evidence of a genuine issue of material fact—namely, that Mary Lou lacked testamentary capacity as determined by the three relevant factors at the time she executed her will. Daren offered no testimony by affidavit, deposition, or otherwise regarding Mary Lou’s testamentary capacity. Our supreme court has offered the following in response to a nonmovant’s failure to appropriately respond to a summary judgment motion:

[W]e wish to make it clear that this Court intends to enforce Rule 56(e), which requires affidavits or other evidence establishing “a genuine issue for trial.” Miss. R. Civ. P. 56(e). Those who practice before our trial courts are well advised to respond to summary judgment motions with affidavits, deposition testimony, responses to discovery, and other evidence approved by Rule 56, allowing our trial judges a fair look at whether triable issues of material fact exist. As the rule specifically provides, parties may not simply rely on their pleadings . . . .

Franklin Collection Serv. Inc. v. Kyle, 955 So. 2d 284, 291 (¶24) (Miss. 2007).

¶16. Because the beneficiaries established a prima facie case that the will was valid—and specifically that Mary Lou possessed testamentary capacity at the time of its execution—and Daren failed to rebut the prima facie case with any summary-judgment evidence that there
was a genuine issue for trial, the trial court did not err in granting summary judgment.

Daren’s shortcoming in this case was to respond to the affidavits with mere assertions. Had he offered an affidavit with interrogatory answers and deposition excerpts attached, the outcome might have been different.

Still, were the requirements of Franklin actually satisfied here? Daren did cite to “discovery,” which we will assume here to include interrogatory responses and depositions, both of which must be sworn, and possibly responses to requests for admission. But are they a part of the record? Well, nowadays nobody files that stuff in the record. Merely referring to it without attaching excerpts supporting your position is like saying, “You’ll have to take my word for it, Judge.” Again, an affidavit with excerpts attached would likely have made a difference.

Another cause for pause is the language of R56 itself. R56(c) specifies that “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” If any … I wonder what that means amidst all that other material the court is supposed to consider?

The moral of this story is to file one or more affidavits, even if all you are relying on is discovery material.

Answers to RFA’s

May 22, 2018 § 6 Comments

MRCP 36 Requests for Admission are quite useful in domestic litigation. Following is the language of the rule dealing with answers, annotated with my comments:

“(a) … The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of forty-five days after service of the summons upon him. If objection is made, the reasons therefor shall be stated.”

CommentSubject to the language below in Paragraph b, you have to get your response filed within 30 days. The rule says that the attorney can sign for the client, but I don’t recommend that because often the answering party is literally stuck with and by the response. When the client signs it’s hard for him to maintain later that he never intended to admit that fact. Note that the reasons for an objection must be stated; remember that you and your client are bound by what you state. If you don’t assign a particular reason, you likely have waived it, subject to Paragraph b.

“The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter.”

Comment: I suggest that you repeat the language of the request in the denial so that there is no doubt as to what is admitted (e.g., “Defendant admits that he was at the home of Francine Jones at 3 a.m. on June 9, 2017” rather than “Admitted.” This may sound fussy, but unless you can give me a persuasive reason not to do it my way, I stand my ground.

“A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder.”

Comment: Here is where the advice immediately above becomes clear. By saying only “denied,” in the above example, you are denying every word. But the answer, “Defendant denies that he was at the home of Francine Jones at 3 a.m. on June 9, 2017” leaves no doubt whatsoever what exactly he is denying. And that is what the rule requires. The rule also clearly requires that if you are admitting in part and denying in part you have to specify (e.g., “Defendant admits that he was at the home of Francine Jones, but denies that he was at the home of Francine Jones at 3 a.m. on June 9, 2017”).

“An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny.”

Comment:  This requirement is seldom met, in my experience. If you are going to seek refuge behind lack of information, you are going to have to take a further step and make reasonable inquiry to obtain that information. Only after making “reasonable inquiry” may you then state that the information known or readily obtainable is insufficient to enable an admission or denial complying with the rule. The requirement of reasonable inquiry is a good reason always to require your client to sign the responses. Oh, and keep in mind that your failure to answer with the reasonable inquiry language may provoke a motion to take the matter as admitted, which means that you will have an uphill climb to convince the judge to let you amend, as provided in Paragraph b.

“A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to Rule 37(c), deny the matter or set forth reasons why he cannot admit or deny it.”

Comment:  No matter how inane the request, you have to answer the substance of the request. It’s never adequate to respond like “This is a modification action, after all, and adverse effect on the child has been pled.”

“The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served.”

Comment:  If the court determines that an objection is unjustified, then it must order than an answer be served. You get another shot at an answer. This is why an objection is better than an unresponsive answer.

“If the court determines that an answer does not comply with the requirements of this section, it may order either that the matter is admitted or that an amended answer be served.”

Comment:  Here is where your chickens come home to roost if you don’t properly answer with “reasonable inquiry” or make some kind of unresponsive answer. You run the risk that the judge will merely order that the matter be taken as admitted. There are no factors for the judge to apply; it’s within the judge’s discretion whether to order that it be taken as admitted or that you may file an amended answer.

“The court may, in lieu of these orders, determine that final disposition of the request be made at a pre-trial conference or at a designated time prior to trial. Rule 37(a)(4) applies to the award of expenses incurred in relation to the motion.”

Comment:  Self-explanatory.

“(b) Effect of Admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.”

Comment:  Conclusively established means exactly that. “Any admission that is not amended or withdrawn cannot be rebutted by contrary testimony or ignored by the court even if the party against whom it is directed offers more credible evidence.” DeBlanc v. Stancil, 814 So. 2d 796, 801 (Miss. 2002).

“Subject to the provisions governing amendment of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”

Comment:  Although the rule appears to provide that you will be allowed to amend or withdraw a response if you can show (a) that presentation of the merits will be subserved, and (b) the other side can not show prejudice, the MSSC has held that the trial court “may,” but is not required, to consider the two prongs of the rule in denying a motion to withdraw or amend. Young v. Smith, 67 So. 3d 732, 740 (Miss. 2011).

“Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission by him for any other purpose nor may it be used against him in any other proceeding.”

Comment:  Don’t expect to use those old admissions from your opposing party’s first divorce in this second one.

No Class Actions in Mississippi

May 21, 2018 § 1 Comment

The MSSC entered an order en banc on May 17, 2018, denying a motion to adopt a class-action rule. The order, signed by Presiding Justice Randolph, reads in its entirety as follows:

Now before the en banc Court is the Motion to Amend Rule 23 of the Mississippi Rules of Civil Procedure, filed by Richard T. Phillips.

Phillips proposed amending Rule 23 to provide a class-action procedure in Mississippi. The motion was posted for comment from May 16, 2017, to October 2, 2017. Numerous comments were filed by individuals, law firms, businesses, and organizations.

The motion was also referred to this Court’s Advisory Committee on Rules. The Committee’s minutes reflect that, after careful consideration, it voted (with one member abstaining) not to recommend adoption of the proposed amendments [sic] to Rule 23.

After due consideration, we find the motion should be denied.

The court then ordered that the motion be denied. Waller, Randolph, Coleman, Maxwell, Beam, Chamberlin, and Ishee voted to deny. Kitchens and King voted to grant.

Before I am flooded with comments along the lines of “Mississippi is the only state without a class-action rule,” and “We are out of step again,” let me point out that I am a member of the MSSC’s Advisory Committee on Rules, and have been since 2010. The committee membership includes plaintiffs’ and defense lawyers, an assistant AG, a public defender, 2 each circuit and chancery judges, a county-court judge, and an appellate judge. I am on the subcommittee that exhaustively studied the proposal, including reading scholarly articles on the subject and studies of other states’ rules. We even interviewed proponents of each side of the debate, something we have not done before during my time on the committee. The proposal was discussed in depth. The unanimous conclusion of the subcommittee (with one abstention) was that the federal Class Action Fairness Act of 2005 (CAFA) has had the effect of making almost all class-action suits removable to federal court, obviating the need for a state rule. The full committee voted unanimously (with one abstention) that the proposed rule not be adopted.

 

What You May Get with a Motion for Reconsideration

April 25, 2018 § Leave a comment

Continuing with yesterday’s R59 theme, we turn to the question of what, exactly, are you asking for when you make a R59 motion, and how does what you ask for shape what you’re likely to get?

It wound up being an issue for one Tracy Dixon. After the chancellor denied his request for modification, Tracy filed a “Motion for Reconsideration, Correction of Judgment, or in the Alternative for a New Trial.” The chancellor entered an order granting a new trial without ruling on the merits of any issues in the case. Without holding a new trial or hearing any further evidence, the chancellor entered a revised opinion and amended final judgment unfavorable to Tracy. He appealed.

The COA affirmed in Dixon v. Dixon, handed down February 6, 2018. Judge Wilson expounded for the 5-4 majority:

¶29. In his final issue on appeal, Tracy argues that the chancellor exceeded his authority under the Mississippi Rules of Civil Procedure by entering a revised opinion and amended final judgment. As discussed above, after the initial final judgment was entered (on February 10, 2016, nunc pro tunc January 26, 2016), Tracy filed a “Motion for Reconsideration, Correction of Judgment, Or In The Alternative For New Trial.” The chancellor then entered an order granting a “new trial,” which did not address or rule on the merits of any of the issues in the case. Finally, without holding a “new trial” or hearing any additional testimony or evidence, the chancellor entered a revised opinion and amended final judgment, which is the subject of this appeal. Tracy argues that the chancellor’s entry of a revised opinion and
amended final judgment violated Rule 59(d), which provides as follows:

Not later than ten days after entry of judgment the court may on its own initiative order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a timely motion for a new trial for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor.

M.R.C.P. 59(d). Specifically, Tracy argues that the chancellor effectively ordered a “new trial”—either sua sponte or “for a reason not stated in [Tracy’s timely] motion” for a new trial. Id. If the former, Tracy says that the chancellor violated Rule 59(d) by acting more than “ten days after entry of judgment.” Id. If the latter, Tracy says that the chancellor violated Rule 59(d) by not “giving [him] notice and an opportunity to be heard.” Id.

¶30. We conclude that Tracy has misinterpreted the case’s procedural history and the chancellor’s rulings. Tracy’s “Motion for Reconsideration” primarily sought to alter or amend the judgment in various respects—he sought to change the final judgment based on the evidence already presented, not a “new trial.” In fact, the motion’s prayer for relief did not even mention a “new trial.” Rule 59(a)-(d) governs a motion for a new trial. However, Rule 59(e) governs a motion to alter or amend the judgment.

¶31. Rule 59(e) simply provides that “[a] motion to alter or amend the judgment shall be filed not later than ten days after entry of judgment.” M.R.C.P. 59(e). Interpreting the nearly identical federal rule, [Fn omitted] federal courts have held that “[a] judge may enlarge the issues to be
considered in acting on a timely motion under Rule [59(e)].” Charles v. Daley, 799 F.2d 343, 347 (7th Cir. 1986). The court may amend any part of the judgment, and the court is not limited to the grounds raised in the motion. EEOC v. United Ass’n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of the U.S. & Canada, Local No. 120, 235 F.3d 244, 250 (6th Cir. 2000). “The salient fact is that a motion to amend judgment was timely filed. Such gave the [trial] court the power and jurisdiction to amend the judgment for any reason, if it chose to do so, and it was not limited to the ground set forth in the motion itself.” Varley v. Tampax Inc., 855 F.2d 696, 699 (10th Cir. 1988); accord Bullock v. Buck,
611 F. App’x 744, 746 n.2 (3d Cir. 2015) (“In ruling on a Rule 59(e) motion, a District Court is not limited to the grounds set forth in the motion itself.”); Walker v. Walker, 216 So. 3d 1262, 1272-74 (Ala. Ct. Civ. App. 2016).

¶32. We conclude that these decisions are consistent with our Supreme Court’s recognition of a trial court’s “broad[] discretionary authority under Rule 59(e) to grant relief.” Bruce v. Bruce, 587 So. 2d 898, 904 (Miss. 1991). Our Supreme Court has held that “[w]hen hearing a motion under Rule 59(e), a trial court proceeds de novo, if not ab initio.” Id. “Rule 59(e) provides the trial court the proverbial chance to correct its own error . . . .” Id.

¶33. Tracy’s filing of a timely motion to alter or amend the judgment under Rule 59(e) suspended the finality of the judgment and permitted the chancellor to consider the various issues in this case “de novo, if not ab initio.” Id. At that point, the chancellor had “the power and jurisdiction to amend the judgment for any reason, if it chose to do so, and it was not limited to the ground set forth in the motion itself.” Varley, 855 F.2d at 699. On appeal, we review the chancellor’s amended final judgment on its own merits.

So R 59(e) is one of those proverbial two-edged swords, kind of like asking your law-school professor to look back over your paper to see whether she could possibly find that extra point on the exam to get you that 3.0; the search might take the result in the opposite direction.

The Rule 59 Motion and the Scope of the Appeal

April 24, 2018 § Leave a comment

Can an MRCP 59 motion that is limited in scope have the effect of limiting the scope of your appeal?

Jennifer Baumbach argued in her appeal to the COA that her ex, Robert, had foregone the issue of child custody by not raising it in his R59 motion following entry of their divorce judgment. In the case of Baumbach v. Baumbach, decided April 3, 2018, the court rebuffed her argument, per Judge Barnes:

¶20. Citing Jennifer’s previous attempts to interfere with his visitation, Robert claims the chancellor’s decision to award Jennifer sole physical custody of the children “was against the weight of the evidence and should be overturned.” Jennifer contends that because Robert did not address the issue of custody in his motion to amend the judgment, he is procedurally barred from asserting it on appeal. However, in reference to Mississippi Rule of Civil Procedure 59, the Mississippi Supreme Court has stated:

[Although i]t is clearly the better practice to include all potential assignments of error in a motion for new trial . . . when the assignment of error is based on an issue [that] has been decided by the trial court and duly recorded in the court reporter’s transcript, . . . [an appellate court] may consider it regardless of whether it was raised in the motion for new trial.

Kiddy v. Lipscomb, 628 So. 2d 1355, 1359 (Miss. 1993); see also Jackson v. State, 423 So. 2d 129, 131 (Miss. 1982) (“[I]t is not necessary to make a motion for a new trial grounded upon errors shown in the official transcript of the record, including the pleadings, transcribed evidence, instructions, verdict[,] and judgment of the court.”). Since the issue of child custody was clearly decided by the chancery court at trial, we find any failure to raise this issue in Robert’s motion to alter or amend the judgment does not bar it from review on appeal.

That certainly has been the rule in chancery court bench trials from time immemorial, or at least as long as I can remember. I’ve posted about it previously here and here.

Notwithstanding all that, I still encourage you to plead the figurative kitchen sink in your R59 motions. A post explaining my thoughts on the matter is at this link.

Summoning the Unknown

April 23, 2018 § 2 Comments

It’s frustrating and expensive to find out that your summons by publication for unknown heirs is rejected because you didn’t do it right. Nine out of ten times the flaw is in the affidavit that is required to precede publication.

“What?” you say, “there must be an affidavit?”

Oui, mon ami. Consider the language of MRCP 4:

MRCP 4(c)(4)(D): When unknown heirs are made parties defendant in any proceeding in the chancery court, upon affidavit that the names of such heirs are unknown, the plaintiff may have publication of summons for them and such proceedings shall be thereupon in all respects as are authorized in the case of a nonresident defendant …

MRCP 4(d)(4)(A): If the defendant in any proceeding in a chancery court, or in any proceeding in any other court where process by publication is authorized by statute, be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry and the post office address of such defendant be stated in the complaint, petition, or affidavit, or if it be stated in such sworn complaint or petition that the post office address of the defendant is not known to the plaintiff or petitioner after diligent inquiry, or if the affidavit be made by another for the plaintiff or petitioner, that such post office address is unknown to the affiant after diligent inquiry and he believes it is unknown to the plaintiff or petitioner after diligent inquiry by the plaintiff or petitioner, the clerk, upon filing the complaint or petition, account or other commencement of a proceeding, shall promptly prepare and publish a summons to the defendant to appear and defend the suit. The summons shall be substantially in the form set forth in Form 1-C.

Notice that the affidavit is required to be made and filed before publication.

Here’s the 1-2-3 of how to do it:

  1. Have your fiduciary or someone with personal knowledge sign an affidavit that (a) there are no other persons known to be heirs of the decedent, and, if there are, they are unknown to the affiant, (b) after diligent inquiry.
  2. The affidavit must be filed before issuance of the summons.
  3. The publication must be substantially in the form of Form 1-C.

That’s all there is to it. That will result in an effective publication.

It’s important that you do it right, because bad process is ineffective to confer jurisdiction. A judgment rendered without jurisdiction is void.

Here are some tips for the more zealous among you:

  • Any sworn statement with the proper language filed before issuance of the summons will do the job, so why not revamp your form complaint to open an intestate estate to include the affidavit language.
  • If you do a stand-alone complaint for determination of heirship, add a paragraph with the appropriate language and make sure it is sworn to by a client with knowledge. One lawyer I know added a prayer for determination of heirship to his estate-opening complaint so that he did not have to file a separate pleading.
  • While you’re at it, erase all the faulty affidavits and pleadings from your cloud or hard drive lest you repeat the same old errors by using incorrect forms.

Why is all this necessary? Because MCA § 91-7-293 requires in part that “The executor or administrator shall file with his final account a written statement, under oath, of the names of the heirs or devisees and legatees of the estate, so far as known … the statement must aver that diligent inquiry has been made to learn the same without avail …”

This is a subject I have posted about often, and probably will again as long as lawyers keep tripping over themselves. You can access those prior posts by entering “unknown heirs” in the search box.

Amendment Fail

February 7, 2018 § 1 Comment

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

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

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

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

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

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

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

¶64. Rule 15(a) provides as follows:

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

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

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

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

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

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

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

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

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

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

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

Some afterthoughts:

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

False Pleadings

January 23, 2018 § 2 Comments

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

“The signature of an attorney constitutes a certificate that the attorney has read the pleading or motion; that to the best of the attorney’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.”

R11(b) provides sanctions for non-compliance.

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

So how do the following comport with R11?

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

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

Understanding the MEC Privacy Requirements

January 8, 2018 § 2 Comments

Section 9(A) of the MEC administrative procedures imposes a duty to protect sensitive information of parties and children in filings with the court. Social Security numbers, names of minor children, dates of birth, and financial account numbers are prohibited and must be redacted. Attorneys are directed to use caution with personal identifying numbers (e.g., driver’s license numbers), medical records, employment history, individual financial information, and proprietary or trade-secret information.

There are exceptions, however, set out in Section 9(B). It states:

The redaction requirement shall not apply to the following:

  1. The record of an administrative or agency proceeding.
  2. The record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed. See Section 5(D) for a listing of restricted access cases.
  3. Documents filed under seal.
  4. Documents filed as Restricted Access if the private information is necessary and relevant to the case. See Section 5(D) for listing of restricted access cases.

Section 5(D) designates certain cases as “Restricted Access” (RA), meaning that persons other than the attorneys of record and clerks will only be able to view remotely the case’s docket page; as with other unsealed cases, the public may view documents on file in RA cases at the terminal in the clerk’s office.

Cases designated as RA include:

Debt Collection; Garnishment; Replevin; Child Custody/Visitation; Child Support; Divorce, both fault and irreconcilable differences; Modification; Paternity; Termination of Parental Rights; Birth Certificate Correction; Conservatorship; Guardianship; Minor’s Settlement; Protection from Domestic Abuse Law.

Note that adoption is not listed. That’s because adoptions are under seal, and so are exempted under 9(B)(3), above.

Also not listed are estates. That means that the redaction requirements do, indeed, apply to them.

Even if your case is not designated in the rule as an RA case, you may still move the court to restrict a document or the entire case for good cause, per Section 5(D)(3).

Just because your case falls in an RA category does not mean that can or should ignore your client’s right to privacy. Social Security numbers, financial account numbers, passwords, and personal identifying numbers should always be scrubbed from documents filed with the court, exchanged in discovery, and introduced into evidence, unless your client has specifically authorized you to release that specific information.

And remember that MRCP 5.1 extends the MEC privacy rules to districts using non-MEC electronic filing.

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