Taking as Admitted … or not

September 18, 2017 § Leave a comment

Ursel Williams sued her husband, Wayne Williams, for separate maintenance after he left her. In the course of litigation, Wayne propounded R 36 requests for admission (RFA’s), most of which went to the merits of Ursel’s claims. Ursel never responded, and Wayne moved at trial for the chancellor to take the requests as admitted. She refused. Wayne appealed the judge’s grant of separate maintenance and raised in his appeal the issue of the chancellor’s refusal to take the admissions as admitted.

In Williams v. Williams, decided August 22, 2017, the COA affirmed. Judge Lee wrote for a 7 1/2 -1 1/2 court (Judge Wilson joined the dissent “in part”):

¶7. Rule 36 of the Mississippi Rules of Civil Procedure governs requests for admissions. The rule states, in pertinent part, that a matter will be deemed admitted if the party upon whom the request was served does not timely respond or file an objection addressed to the matter. M.R.C.P. 36(a). A timely response equates to one being made within thirty days. See id. Thereafter, the matter is conclusively established unless the court permits the admission’s withdrawal or amendment. M.R.C.P. 36(b). “A matter that is deemed admitted does not require further proof.” Locklear v. Sellers, 126 So. 3d 978, 981 (¶7) (Miss. Ct. App. 2013). Still, while “Rule 36 is to be applied as written, . . . ‘it is not intended to be applied in Draconian fashion.’” In re Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424, 432 (¶28) (Miss. 2009) (quoting DeBlanc v. Stancil, 814 So. 2d 796, 801-02 (¶26) (Miss. 2002)). Specifically, “[a] certain amount of discretion is vested in the [chancellor] with respect to whether he or she will take matters as admitted.” Earwood v. Reeves, 798 So. 2d 508, 514 (¶19) (Miss. 2001) (citation omitted).

¶8. The problem here is that the admissions produced contradictory results. Some of the requests asked Ursel to admit that: the separation was her fault, Wayne did not refuse to support her, and Wayne did not abandon her. However, another request asked Ursel to admit that “there is no significant conduct on [y]our part that negatively impacts the enjoyment of the marriage contract.” Ursel obviously admitted to this statement in her untimely response. As such, we fail to see how the matter could be conclusively established as Wayne argues; thus, it was within the chancellor’s discretion to rely on the trial testimony to resolve any conflicts. Furthermore, the chancellor recognized that it was within her discretion to review the reason for Ursel’s failure to timely answer the requests for admissions. The chancellor found the delay of thirty-three days was not “critical,” and we can find no abuse of discretion in this instance. The dissent states that Wayne’s requests for admissions were deemed
admitted for Ursel’s failure to timely reply and that the contradictory admission does not encompass the essential elements of Ursel’s separate-maintenance claim. However, the dissent concedes that it is within the chancellor’s discretion whether to take matters as admitted. In this instance, we cannot find error by the chancellor.

Nothing earthshaking here.

In child custody cases, RFA’s may not be relied upon by the chancellor as the body of proof. And here is another post (with the same title) on the point.

It’s important to keep in mind that you shouldn’t send RFA’s out to do the bulk of the heavy lifting in your case. They aren’t designed to do that. As the court has said, the purpose of the request for admission under Rule 36 is “to determine which facts are not in dispute . … It is not intended to be used as a vehicle to escape adjudication of the facts by means of artifice or happenstance.” DeBlanc v. Stancil, 814 So. 2d 796, 802 (Miss. 2002).

When a Judgment Isn’t a Judgment

September 13, 2017 § 3 Comments

If a chancellor finally adjudicates a case with an instrument entitled “Order,” is that a final, appealable judgment?

Check out MRCP 58:

Every judgment shall be set forth on a separate document which bears the title of “Judgment.” However, a judgment which finally adjudicates the claim as to all parties and which has been entered as provided in MRCP 79(a) shall, in the absence of prejudice to a party, have the force and finality of a judgment even if it is not properly titled … [my emphasis]

That language came into play in the recent COA case, Bray, et al. v. Wooten, et al. handed down August 22, 2017.

In that case, on May 12, 2014, the chancellor rendered a final ruling following a hearing, and entitled it “Opinion and Order.” The order was filed the same day in the office of the chancery clerk. Later, on July 11, 2014, a document entitled “Final Judgment,” that had been drafted by one of the attorneys and signed by all counsel, was erroneously presented to the other chancellor in the district. He signed it that day, no doubt not taking time to study it in detail because it was signed off on by all counsel, and it was entered by the clerk on July 15, 2014. A motion for new trial was filed within ten days of entry of the July judgment, and was overruled ruled by the original chancellor in January, 2015. The appeal was filed within thirty days of the chancellor’s January, 2015, ruling, which came eight months after the May, 2014, final order. Here’s what the COA said about it:

 ¶17. We begin with the jurisdictional issues. [One of the appellants] argues that the Bray’s notice of appeal was untimely. It claims that the final judgment was Chancellor Kilgore’s Order and Opinion dated May 12, 2014. Thus, since the Bray’s notice of appeal was not filed until February 10, 2015, it was almost seven months late, and this appeal should be dismissed.

¶18. “[W]e review questions of law, such as jurisdiction, utilizing a de novo standard of review.” Weeks v. State, 139 So. 3d 727, 729 (¶5) (Miss. Ct. App. 2013) (citing Whetstone v. State, 109 So. 3d 616, 618 (¶6) (Miss. Ct. App. 2013)). Mississippi Power argues that Chancellor Kilgore’s January 14, 2015 order stated that his final order was the May 12, 2014 order. Thus, Mississippi Power contends that Bray did not timely perfect the appeal. Bray counters that Mississippi Power did not join Wooten’s motion for summary judgment or move separately for summary judgment, meaning the chancellor’s judgment was not final. We address both of these arguments.

¶19. “A final, appealable, judgment is one that adjudicates the merits of the controversy and settles all the issues as to all the parties and requires no further action by the lower court.” Jennings v. McCelleis, 987 So. 2d 1041, 1042 (¶4) (Miss. Ct. App. 2008) (quotation marks omitted) (quoting Walters v. Walters, 956 So. 2d 1050, 1053 (¶8) (Miss. Ct. App. 2007)). “Generally, only final judgments are appealable.” Walters, 956 So. 2d at 1053 (¶8) (quoting M.W.F. v. D.D.F., 926 So. 2d 897, 899 (¶4) (Miss. 2006)).

¶20. Mississippi Rule of Civil Procedure 58 provides:

Every judgment shall be set forth on a separate document which bears the title of “Judgment.” However, a judgment which fully adjudicates the claim as to all parties and which has been entered as provided in M.R.C.P. 79(a) shall, in the absence of prejudice to a party, have the force and finality of a judgment even if it is not properly titled. A judgment shall be effective only when entered as provided in M.R.C.P. 79(a).

In his January 14, 2015 “Opinion and Order,” Chancellor Kilgore ruled:

This order was filed in the office of the Chancery Clerk on May 12, 2014. Although this judgment was styled “Opinion and Order” and was clearly intended to be a final resolution to the action, counsel for Wooten acknowledged that he drafted a document entitled “Final Judgment”’ and mistakenly submitted same to the other Chancery Judge in the district, who signed this order on the 11th day of July, 2014.

¶21. The chancellor’s May 12, 2014 order was entitled “Opinion and Order.” It did not comply with Mississippi Rule of Civil Procedure 58, which clearly requires that a final judgement [sic] be titled “Final Judgment” in order to be considered one. A further analysis through Mississippi Rule of Civil Procedure 79(a) does not support the chancellor’s ruling.

¶22. Therefore, we find that the chancellor’s May 12, 2014 Opinion and Order was not a final, appealable judgment, and it did not have the force and finality of a judgment. The fact that the parties’ attorneys prepared and signed a “Final Judgment” supports our decision. Had it been submitted to the correct chancellor, there would be no argument that the notice of appeal was untimely. Regardless, the earliest possible appealable “final judgment” in this case was the Final Judgment that was signed on July 11, and entered on July 15, 2014. The motion for a new trial was filed on July 25, 2014, which was within ten days as required by Mississippi Rule of Civil Procedure 59(b). Because the notice of appeal was filed within thirty days of the chancellor’s January 14, 2015 “Opinion and Order,” we find no merit to this issue.

If the COA is trying to say that the labelling of the May ruling worked prejudice on the appellant that was compounded by his submission of the “Final Judgment” to the wrong judge, okay. That makes sense under R 58, which specifically says that mislabelling of a final judgment is only fatal to its finality if it creates a prejudice to a party.

But the COA’s language at ¶21 is too sweeping to me when it says, “[The May Order] did not comply with Mississippi Rule of Civil Procedure 58, which clearly requires that a final judgment be titled “Final Judgment” in order to be considered one.” On the contrary, under R 58, the chancellor could have tiled it “Laundry List,” and, if it finally adjudicated all claims as to all parties, it would be a final, appealable judgment if no one could show prejudice. The language of the opinion, which may be quoted as authority, can be taken to mean something contrary to the express language of the rule.

The wrinkle here was the submission to and signing of counsel’s “Final Judgment” by a busy chancellor who was likely interrupted in other matters to accommodate the request. Had the document been submitted to the proper chancellor, I believe he would have declined to sign it on the basis that he had already issued a final ruling in the case. He said as much in his January, 2015, ruling on the R 59 motion.

 

Divorce is a Rule 4 Action

September 11, 2017 § 2 Comments

Last week I invited your comments on this language from the MSSC’s decision in Lewis v. Pagel, the case that changed the law of venue in Mississippi divorce actions:

¶34. It is uncontested in the record that Drake did not answer Tonia’s complaint for divorce. While Drake was not required to do so, he was permitted to do so under Mississippi Rule of Civil Procedure 81. M.R.C.P 81(d)(4); see also M.R.C.P. 12. Drake certainly could have responded to Tonia’s complaint and challenged venue. Instead, Drake chose to litigate the entire divorce and several ancillary matters, including several appeals, before raising his venue objection once a contempt judgment appeared imminent.

A couple of commentors hit the nail on the head.

The problem with that statement is that divorce is not a R81 matter; it is a R4 matter. Read R81(d) for yourself. Other than a motion for temporary relief in a divorce, there is no mention of divorce in R81(d). That’s because process in a divorce is made pursuant to R4, and an answer is required within 30 days of service or the defendant will be in default. Now, it is true that a divorce complaint may not be taken as confessed, so that failure to file an answer can not result in entry of a default judgment as would be the case in a law suit; however, it is not R81 process that would be returnable to a day certain, and failure to file an answer does have consequences unlike R81.

It is true that R81 is “subject to limited applicability” to Title 93, which includes divorces. But that provision yields to statutory “procedures” that may be in conflict with the rules, and there are no statutory procedures spelled out in Title 93 that conflict with R4, or with R81 for that matter.

The reason I am pointing this out is not because I like to challenge the justices. It’s because I think it’s important for us to keep these things straight to avoid confusion. The above unfortunate language now sleeps in our jurisprudence, possibly to awaken and do mischief in some later case.

I think sometimes that lawyers who have not spent much time dealing with R81 see it as some kind of mystical incantation that must be invoked in chancery matters, and that unless the rituals are properly observed and the magic is properly invoked, jurisdiction will not attach.

The fact is that R4 and R81 are simply two different systems for service of process. Every matter is a R4 action unless it is specifically mentioned in R81(d). It’s as simple as that.

Rule 4 or Rule 81?

September 6, 2017 § 9 Comments

Yesterday we discussed Lewis v. Pagel, the June 1, 2017, MSSC case that changed Mississippi divorce law with respect to venue.

Can anyone tell me what is wrong with this statement from the opinion:

¶34. It is uncontested in the record that Drake did not answer Tonia’s complaint for divorce. While Drake was not required to do so, he was permitted to do so under Mississippi Rule of Civil Procedure 81. M.R.C.P 81(d)(4); see also M.R.C.P. 12. Drake certainly could have responded to Tonia’s complaint and challenged venue. Instead, Drake chose to litigate the entire divorce and several ancillary matters, including several appeals, before raising his venue objection once a contempt judgment appeared imminent.

I’ll revisit this next week.

Divorce Venue Can Be Waived

September 5, 2017 § Leave a comment

If there is one maxim of conventional wisdom in Mississippi divorce law, it is “Venue in a divorce is jurisdictional.” As a result, an objection to venue can not be waived.

That’s because the divorce venue statute, MCA 93-5-11, has been construed to confer subject matter jurisdiction which, as everyone knows, can neither be waived nor voluntarily conferred. The concept is embedded in our case law.

The foregoing was the law until June 1, 2017. Now the law has changed.

In Lewis v. Pagel, decided by the MSSC on June 1, 2017, Drake Lewis tried to argue on appeal that the chancery court lacked subject-matter jurisdiction over his divorce from Tonia Lewis Pagel because he was not a resident of the county where the divorce was filed. The Supreme Court rejected that argument, and turned its attention to the question whether Drake had waived what up until then had been unwaivable. Justice Chamberlin wrote for a unanimous court:

 ¶28. In addition to residing in Harrison County, Drake waived his objection to improper venue by not timely raising it. Under Mississippi law, it is a “basic premise that venue may be waived.” Belk v. State Dep’t of Pub. Welfare, 473 So. 2d 447, 451 (Miss. 1985).

¶29. Section 159 of the Mississippi Constitution vests subject-matter jurisdiction in the chancery courts over divorce proceedings. Miss. Const. art. 6, § 159. Personal jurisdiction in a divorce proceeding, though, is governed by Mississippi Code Section 93-5-11. Section 93-5-11 was amended by the Legislature in 2005 to include new language on the transfer of venue: “Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.” Miss. Code Ann. § 93-5-11; see also 2005 Miss. Laws 448. Rule 82(d) of the Mississippi Rules of Civil Procedure provides:

(d) Improper Venue. When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court in which it might properly have been filed and the case shall proceed as though originally filed therein. The expenses of the transfer shall be borne by the plaintiff. The plaintiff shall have the right to select the court to which the action shall be transferred in the event the action might properly have been filed in more than one court.

M.R.C.P. 82 (emphasis in original). Further, the Rules provide the procedure for contesting improper venue. M.R.C.P. 12(b). We have not applied the language of Section 93-5-11 directly after its 2005 amendment.

¶30. We recognize that before the 2005 amendment this Court consistently found that Section 93-5-11 could not be waived as it vested subject-matter jurisdiction over divorce actions in the chancery courts. See Cruse v. Cruse, 202 Miss. 497, 499, 32 So. 2d 355, 355 (1947) (applying Section 2738); Price v. Price, 202 Miss. 268, 272, 32 So. 2d 124,125 (1947) (applying Section 2738); Carter v. Carter, 278 So. 2d 394, 396 (Miss. 1973) (applying Section [93-5-11’s 1942 Code predecessor]) [Fn omitted] ; Miller v. Miller, 323 So. 2d 533, 534 (Miss. 1975); Stark v. Stark, 755 So. 2d 31, 33 (Miss. Ct. App. 1999); Slaughter v. Slaughter, 869 So. 2d 386, 395 (Miss. 2004); see also Bush v. Bush, 903 So. 2d 700, 701 (Miss. 2005) (order granting and deciding merits of petition for interlocutory appeal).

¶31. Today, we overrule these past cases to the extent that they hold that Section 93-5-11 confers subject-matter jurisdiction on chancery courts. [Fn 3] Subject-matter jurisdiction is conveyed by the Mississippi Constitution. Section 93-5-11 governs the venue of a divorce action and limits the chancery court’s exercise of personal jurisdiction over the defendant. The Mississippi Rules of Civil Procedure control the procedure to be utilized when venue is improper. [My emphasis]

[Fn 3]  In 2006—after Section 93-5-11 was amended—this Court, in dicta, found that Section 93-5-11’s venue requirement conferred subject-matter jurisdiction on the chancery courts. National Heritage Realty, Inc. v. Estate of Boles, 947 So. 2d 238, 248–49 (Miss. 2006) (applying Miss. Code Ann. § 91-7-63(1)). We decline to follow this interpretation of Section 93-5-11 post-amendment. It appears the Boles Court did not take the amendment into account.

¶32. Additionally, even if the venue argument was correct, the appropriate remedy would have been transfer of the matter to Jackson County. M.R.C.P. 82(d). Rule 82(d), explicitly incorporated by Section 93-5-11’s amendment, allows the court to transfer an action only “on timely motion.” Id.

¶33. Drake’s motion challenging venue—eight years after the initial complaint—was untimely. Tonia filed her complaint for divorce in 2006; the chancery court entered an order of divorce in 2008. Drake first raised the issue of venue in 2014—six years after the entry of the judgment of divorce.

¶34. It is uncontested in the record that Drake did not answer Tonia’s complaint for divorce. While Drake was not required to do so, he was permitted to do so under Mississippi Rule of Civil Procedure 81. M.R.C.P 81(d)(4); see also M.R.C.P. 12. Drake certainly could have responded to Tonia’s complaint and challenged venue. Instead, Drake chose to litigate the entire divorce and several ancillary matters, including several appeals, before raising his venue objection once a contempt judgment appeared imminent.

¶35. Our finding of waiver is reinforced by Drake’s actions after filing this appeal. After Drake noticed this appeal—in which he raises the issue of a lack of subject-matter jurisdiction before this Court—he entered three agreed orders that were approved as to form by his counsel. Each order recognizes that the Harrison County Chancery Court has jurisdiction over both the subject matter of the dispute and the parties involved in the
dispute. [Fn omitted] Therefore, we find that Drake has waived his objection to venue by litigating in Harrison County.

So there you have it. Venue in a divorce case is no longer a function of subject matter jurisdiction that can not be waived or voluntarily conferred; it is a function of personal jurisdiction that can be waived. If venue is improper, the issue must be timely raised, and the remedy is transfer, not dismissal.

Remember that “timely” language from R 82. It does no good to plant a venue objection in your answer, and then to joust through discovery and motions for a year or two only to try to get the case transferred after the tide has been running against your client.

One little fillip, though. Won’t this open up the possibility of forum shopping? The plaintiff and defendant may decide to file in a district where neither resides because it has a shorter wait time to final hearing, or has a judge who is more to their liking, or for any other reason. A judge may invoke R 82 on her own motion at any time, but something has to bring the issue to the judge’s attention for that to happen. Or maybe we are simply entering an era when the locus of the divorce no longer has that much significance. Stay tuned.

Dismissal with Bite

August 21, 2017 § Leave a comment

Leesa McCharen was divorced from Judson Allred, III, in 1994. In 2012, Leesa sued Judson for arrearages in medical insurance premiums, private school and private college tuition, and various other claims, totalling more than $530,000. Her two children were 24 and 27 years old, respectively, at the time of her suit.

A year of frenzied litigation ensued, in the course of which Leesa’s claims shrunk to around $136,000. Leesa’s last pleading was filed August 12, 2013. On October 1, 2013, Judson filed a motion to dismiss for failure to join the two daughters as necessary parties, and the court apparently ordered Leesa to join them, although no order was entered. Nothing further happened of record, until …

On June 1, 2015, the chancery clerk issued a R41(d) notice. No response from Leesa. The court dismissed the case by order entered July 9, 2015.

On August 7, 2015, Leesa filed a motion to reinstate the case. There were some fruitless negotiations between attorneys about agreeing to a reinstatement. Nothing else transpired until …

February 25, 2016. On that date, the chancellor held a hearing at which Judson did not appear. Leesa argued that the clerk had mis-styled the case, causing her failure to react. The chancellor reinstated the case. Then, on April 28, 2016, Judson discovered the reinstatement when he was served with discovery requests in the revenant case. He responded with a motion to set aside the order. On May 17, 2016, in a proceeding that the chancellor deemed to be a R60 motion, he dismissed Leesa’s case without prejudice.

In the case of McCharen v. Allred, handed down August 1, 2017, the COA affirmed. Judge Fair wrote for the unanimous court:

¶8. The trial court has the inherent authority to dismiss an action for lack of prosecution. Wallace v. Jones, 572 So. 2d 371, 375 (Miss. 1990). We apply a substantial evidence/manifest error standard of review to the trial court’s grant or denial of a motion to dismiss pursuant to Rule 41 of the Mississippi Rules of Civil Procedure. Ill. Cent. R.R. v. Moore, 994 So. 2d 723, 733 (¶30) (Miss. 2008). Also, we will not reverse the trial court’s denial of relief from judgment pursuant to Rule 60 of the Mississippi Rules of Civil Procedure unless the trial court has abused its discretion. Harrison v. McMillan, 828 So. 2d 756, 773 (¶51) (Miss. 2002).

DISCUSSION

¶9. Mississippi Rule of Civil Procedure 41(d)(1) states that the “case will be dismissed by the court for want of prosecution unless within thirty days following said mailing [notifying the attorneys the case will be dismissed], action of record is taken or an application in writing is made to the court and good cause shown why it should be continued as a pending case.” Leesa left her case dormant for almost two years. As a result, the clerk filed a motion to dismiss on June 1, 2015. Leesa did nothing. Rule 41(d)(1) also states that “[i]f action of record is not taken or good cause is not shown, the court shall dismiss each such case without prejudice.” M.R.C.P. 41(d)(1) (emphasis added). So on July 9, 2015, the court entered an order to that effect. Twenty-nine days later, Leesa filed a motion to reinstate the case.

¶10. The court originally granted Leesa’s motion, presumably because neither Judson nor his counsel was present at the February 2016 hearing. But after listening to Judson’s argument at the May 2016 hearing, the chancellor found no good cause had been shown and dismissed the case without prejudice under Rule 60(b)(6). In doing so, he addressed Leesa’s claim that she did not recognize the motion to dismiss, styled “Moore v. Crim”:

[Leesa’s argument that the clerk failed] to properly docket [the case] is a red herring. It’s pretty much clearly docketed as this case . . . . (T)he clerk may have reversed the order of the names, but, goodness gracious, the last name “Allred” leads in both reference to plaintiff and defendant, so I don’t think you can possibly make that argument with a straight face.

¶11. On appeal, Leesa abandons her sole argument from the trial court and instead argues that: (1) prior to dismissal, the statute of limitations of Leesa’s claim had expired; and (2) Judson delayed litigation with frivolous motions. It is well established that this Court will not consider issues raised for the first time on appeal. Fowler v. White, 85 So. 3d 287, 293 (¶21) (Miss. 2012). Thus, we decline to address Leesa’s current arguments.

¶12. Rule 60(b)(6) allows a judge the opportunity to relieve a party from a final judgment for any justifiable reason. M.R.C.P. 60(b)(6). After careful review of the record, we find the chancellor acted within his discretion in finding that Leesa failed to show any compelling reason for her delay in prosecution. Accordingly, we affirm the chancellor’s order setting aside the order reinstating the case.

Pretty straightforward, even though the procedural path was convoluted.

When you receive a 41(d) notice, you need to file something of record that will have the effect of advancing the case on the docket. A previous post about what action you need to take is at this link. A letter to the clerk will not do the job. Ignoring it will not make it go away. Some chancellors (I included) take the position that once the case is dismissed, it can not be “reinstated;” the only possibility for revival being a timely-filed R60 motion, which requires that you meet its criteria.

An End to Game-Playing

July 24, 2017 § 2 Comments

In 2007, Annie and Frederick Griffin got into a dispute with the mortgage carrier, ABN, over modified terms, and stopped paying. They then sued in federal court alleging fraud and violation of other federal laws on debt collection. ABN filed a motion to compel arbitration, but the matter returned to federal court in 2010 after the arbitrator no longer handled consumer cases. The Griffins filed a motion to declare the arbitration agreement unenforceable, and in response ABN withdrew the arbitration request, no doubt to move the case along. The court granted ABN’s motion.

The Griffins then filed an objection to the ruling, even though they had a pending motion to rule the arbitration agreement unenforceable. They filed the motion pro se, because their attorney withdrew, citing the Griffins’ proclivity for not following his advice. Finally, in February, 2012, the district court entered a sua sponte order dismissing the case for failure to prosecute, concluding that “[i]t appears to this court that the plaintiffs view this lawsuit not as something to be actually litigated, but, rather, as something to be kept alive indefinitely, even at the cost of taking a position that is fundamentally inconsistent with the one they have taken for years in this case.”

In January, 2014, the Griffins filed another complaint in chancery court raising the same legal claims and issues as in the federal suit, and based on the same set of facts. There ensued a removal to and remand from federal court, a recusal, and finally a dismissal in chancery on the ground of res judicata. The Griffins appealed pro se.

In the case of Griffin v. ABN, et al., handed down May 16, 2017, the COA affirmed. Judge Greenlee wrote for the court:

¶7. “The appropriateness of application of the doctrine of res judicata is a question of law” and will therefore be reviewed de novo. Swaney v. Swaney, 962 So. 2d 105, 108 (¶11) (Miss. Ct. App. 2007).

¶8. We agree with the chancellor that Griffin II [the chancery matter filed after the federal court dismissal] is properly barred under the doctrine of res judicata. The doctrine of res judicata has four identities: (1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made. Harrison v. Chandler-Sampson Ins., 891 So. 2d 224, 232 (¶24) (Miss. 2005).

¶9. All four identities are met in the case at hand. The factual allegations in the complaint of Griffin II were copied almost verbatim from the complaint of Griffin I, and with the exception of dropping a couple of claims (the FDCPA and TILA claims), the complaint reasserts the same claims of fraud. All parties present in Griffin I were also present in Griffin II.

¶10. In addition to those four identities, to qualify as res judicata the prior judgment must have been a final judgment on the merits. Anderson v. LaVere, 895 So. 2d 828, 833 (¶10) (Miss. 2004). Under both Mississippi and Federal Rule of Civil Procedure 41(b), dismissal for failure to prosecute operates as a final judgment and dismissal is with prejudice. An exception is found in Mississippi Rule of Civil Procedure 41(d), which provides that where dismissal is made by the clerk following twelve months of docket inactivity, that dismissal is without prejudice. See Strickland v. Estate of Broome, 179 So. 3d 1088, 1094 (¶18) (Miss. 2015). But the case at hand does not fall under Rule 41(d), but rather falls under Rule 41(b). Prior to dismissal, the Griffins were put on notice by the district judge that the case would be dismissed for failure to prosecute if the litigation did not move forward in a meaningful way. The Griffins responded by shifting their legal position in order to avoid trying the merits of the case. The district court’s dismissal of the action was not only appropriate for failure to prosecute, but was also consistent with the Griffins’ new argument that the case should not be tried in court at all but rather arbitrated.

The court went on to address and reject some other issues raised by the Griffins.

Some takeaways:

  • Res judicata is all about identity of issues, facts, and parties. It matters not that the original, dismissed proceeding was in another state or federal court.
  • Res judicata requires a final judgment on the merits in the dismissed action, and the COA found here that the federal court’s dismissal order was a final judgment on the merits per R41(b), and not a dismissal per R41(d).
  • Shifting your legal position is a pretty effective way to frustrate your judge. My term for it is game-playing. Courts are for serious business, not for toying with others, delaying, pettifogging, and caviling. That’s the kind of conduct that will get your case thrown out of court. The Griffins’ lawyer was wise to withdraw before he became identified with their tactics and his own credibility with the court took a hit.

Ex Parte Communication with a Treating Physician in an Estate Matter

May 16, 2017 § Leave a comment

Most of us are familiar with the prohibition in MRE 503(f) against ex parte communication with the treating physician of an opposing party, even when that party has put his own physical, mental, or emotional condition in issue.

Does that prohibition apply in a will contest where both parties claim to be personal representatives of the deceased?

In a case of first impression, the MSSC answered that it does not.

At the trial level, in a will contest involving Katherinne Lyons’ estate, between the testator’s brother (Larry Lyons) and nephew (Anthony Lobred), counsel for Lobred had ex parte communication with the testator’s treating physician before her depostion. Lyons filed a motion to strike the depostion testimony, which the chancellor granted. In the case of Estate of Lyons v. Lyons, handed down April 6, 2017, the MSSC reversed and remanded. Justice Coleman’s wrote for a unanimous court:

¶17. Although the facts surrounding Katherine’s testamentary capacity and Larry’s alleged undue influence are hotly disputed, the facts pertinent to the narrow issue before the Court on interlocutory appeal are not in dispute. It is undisputed that Lobred’s counsel communicated with Dr. Clement regarding Katherine’s medical condition prior to Dr. Clement’s deposition. The specific issue before the Court today is whether the testimony of the testator’s treating physician should be excluded based on contact between the treating physician and a party without the opposing party’s consent in a will contest wherein both parties are personal representatives of the deceased.

¶18. A panel of the Court ordered Larry to file a response to Lobred’s petition for permission to appeal addressing “whether the rule prohibiting ex parte communication with a treating physician applies in an estate matter.” The Court has held that the rule prohibiting ex parte communications under Mississippi Rule of Evidence 503(f) applies in the context of personal injury and medical malpractice cases. Scott v. Flynt, 704 So. 2d 998, 1000-01 (Miss. 1996). The comment to Rule 503 states that the “primary impact of subdivision (f) will be in personal injury actions, although the exception by its terms is not so limited.” According to the comment, the ex parte rule contained in Rule 503(f) could apply in estate matters. Thus, the question initially framed by a panel of the Court may be answered in the affirmative. However, the inquiry does not end here because the Court has yet to address how or if the rule prohibiting ex parte communications would apply in the context of a will contest where both parties can claim to be personal representatives of the deceased.

¶19. At the time of the trial court’s order on Larry’s motion to strike Dr. Clement’s testimony, Rule 503(f) provided:

(f) Any party to an action or proceeding subject to these rules who by his or her pleadings places in issue any aspect of his or her physical, mental or emotional condition thereby and to that extent only waives the privilege otherwise recognized by this rule. This exception does not authorize ex parte contact by the opposing party.

Miss. R. Evid. 503(f) (2015). Amended Rule 503(f) [Fn omitted] now provides:

(f) Waiver by Pleadings; Ex Parte Contact. A party whose pleadings place in issue any aspect of that party’s physical, mental, or emotional condition thereby–and to that extent only–waives the privilege. The exception in this subdivision (f) does not authorize ex parte contact by an opposing party.

Miss. R. Evid. 503(f) (2016).

¶20. In Scott, the trial court ordered the plaintiff in a medical-malpractice case to execute an unconditional medical waiver and permit ex parte conferences by the defendants with any medical provider of the plaintiff. Scott, 704 So. 2d at 999. On interlocutory appeal from the trial court’s order, the Scott Court addressed “two interrelated questions of law[,]” which were framed as “(1) the scope of the medical waiver as contemplated by Mississippi Rule of Evidence 503 and (2) whether or not ex parte contacts with medical providers are permissible under the rules of discovery in the Mississippi Rules of Civil Procedure.” Id. at 1000.

¶21. The Scott Court recognized that a “significant argument about ex parte interviews revolves around who is the holder of the privilege.” Id. at 1004. Before answering the question of how or if the ex parte rule would apply in the context of a will contest, the Court must determine who holds the medical privilege of the testator in a will contest. One of the two permitted methods stated by the Scott Court for obtaining relevant medical information ex parte from a treating physician is through “voluntary consensual disclosure by the patient who is the holder of the privilege.” Id. at 1007. Here, the patient is deceased, so consent would have to be obtained from whoever holds the privilege of the deceased. We hold that in the instant case both parties were personal representatives of the deceased and, therefore, under either the rule or the statute, no prohibited ex parte contact occurred. Because the result is the same whether we employ the rule or the statute, we do not today address any argument or disseminate any holding addressing which governs over the other.

¶22. Mississippi Code Section 13-1-21(1) provides:

(1) All communications made to a physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor by a patient under his charge or by one seeking professional advice are hereby declared to be privileged, and such party shall not be required to disclose the same in any legal proceeding except at the instance of the patient or, in case of the death of the patient, at the instance of his personal representative or legal heirs in case there be no personal representative, or except, if the validity of the will of the decedent is in question, at the instance of the personal representative or any of the legal heirs or any contestant or proponent of the will. (Emphasis added.)

¶23. Under Section 13-1-21(1), “the personal representative or any of the legal heirs or any contestant or proponent of the will” may waive the medical privilege. However, Rule 503(c) identifies the “personal representative” only as an individual who may waive the general medical privilege of a deceased patient. Rule 503(c) [Fn omitted] states:

(c) Who May Claim the Privilege. The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have the authority to claim the privilege but only on behalf of the patient. Miss. R. Evid. 503(c).

¶24. Under Rule 503(c), a deceased patient’s “personal representative” may claim the medical privilege. Black’s Law Dictionary defines a “personal representative” as: “Someone who manages the legal affairs of another because of incapacity or death, such as the executor of an estate. Technically, an executor is a personal representative named in a will, while an administrator is a personal representative not named in a will.” Personal representative, Black’s Law Dictionary (10th ed. 2014).

¶25. Katherine unequivocally stated in her 2005 will: “I hereby nominate, constitute, and appoint my nephew, Anthony Lobred, Executor of this my Last Will and Testament and I authorize and empower my said Executor to do any and all things which in his opinion are necessary to complete the administration and settlement of my estate, including full right, power and authority, without the necessity of obtaining an order from any Court and upon such terms and conditions as my said Executor shall deem best for the settlement of my estate, to bargain, sell at public or private sale[,] convey, transfer, deed, mortgage, lease, exchange, pledge, manage and deal with any and all property belonging to my estate.” Here, Lobred carried out his duty as Katherine’s personal representative by probating her 2005 will as muniment of title. Katherine’s 2012 will contained a similar provision designating Larry as executor. As a result, both Lobred and Larry hold the general medical privilege as Katherine’s “personal representative” under the plain language of Rule 503(b).

¶26. Lobred argues that there is no conflict because Rule 503 is silent regarding will contests, whereas Section 13-1-21(1) specifically addresses the medical privilege in the context of will contests and provides rights not otherwise provided for by the rules of evidence. While we agree with the result urged by Lobred, we disagree that the result stems only from the combination of the statute and the silence of the rule. Rather, because Rule 503 provides that the personal representative may claim the privilege on behalf of a deceased person, and in Scott we held that the party who may claim the privilege may waive the privilege, it is not the silence of Rule 503 but its content that undergirds our holding.

¶27. Section 13-1-21(1), on the other hand, specifically addresses waiver of the medical privilege in the context of a will contest. Under both Rule 503 and Section 13-1-21(1), the medical privilege belongs to both Lyons and Lobred. Under Section 13-1-21(1), the medical privilege may be waived by the personal representative, any legal heir, or any proponent or contestant of a will. Thus, Section 13-1-21(1) authorizes Lobred to waive the entire medical privilege as a personal representative and contestant of the 2012 will. Because Rule 503(c) and Section 13-1-21(1) both authorize Lobred to waive the entire privilege, the ex parte rule of Rule 503(f) does not operate to bar his attorney from speaking alone with the physician witness.

Another One for the Graveyard

April 17, 2017 § Leave a comment

As I have said here before, R54(b) is the graveyard of appeals. Here is one of many posts about it.

The latest iteration is the COA’s decision in Jeffers v. Saget, decided March 21, 2017. In that case, a jury trial in a will contest ended in a mistrial. The chancellor nonetheless entered a “Final Judgment” denying Jeffers’ petition to recover some investment accounts, and Jeffers appealed.

Predictably, the COA pointed out that the chancellor’s ruling disposed of fewer than all of the issues in the case, since the validity of the will had still not been adjudicated. The chancellor had not certified the case per R54(b), and no petition for an interlocutory appeal was filed. Appeal Dismissed.

I get it that it’s better to appeal early and get dismissed than to be told you’re dismissed because you’re late. Yet, the boneyard is filling up.

It’s Alive!

January 17, 2017 § 5 Comments

“It’s alive! It’s alive! It’s alive!”  — Mary Shelley, Frankenstein

Only last year I posed the question whether the venerable and seldom-used Bill of Discovery (BOD) in chancery were dead. That post dealt with the COA’s decision in Kuljis v. Winn-Dixie, Montgomery, LLC, in which the court affirmed a chancellor’s dismissal of a BOD filed by a plaintiff seeking information to determine whether a viable cause of action existed against the grocery-store chain. The judge ruled that the matter should be brought in circuit court and pursued via discovery there.

At the time I questioned whether the decision portended the death of the BOD, and I pointed to (former chancellor) Judge Fair’s dissent in its defense.

The issue arose again in a recent case decided January 10, 2017, Graham v. Franks, et al., and Judge Fair, writing this time for the majority, held that the BOD is, indeed a viable procedure in chancery. Here’s how he addressed it:

¶9. This appeal hinges on Franks’s assumption in his Rule 12(b)(6) motion that complaints for discovery and accounting do not state a cause of action in and of themselves, as Franks has never challenged any particular element of either claim. The dispositive question therefore appears to be whether a complaint that seeks only discovery or an accounting states a cause of action under Mississippi law.

¶10. It is beyond dispute that a complaint for an accounting is a valid cause of action under Mississippi law: “A Mississippi chancery court holds the authority to hear a case for an accounting.” Univ. Nursing Assocs. PLLC v. Phillips, 842 So. 2d 1270, 1275 (¶14) (Miss. 2003); Crowe v. Smith, 603 So. 2d 301, 307-08 (Miss. 1992). The remedy sought by an accounting is the accounting itself “and a judgment for the amount found due upon the accounting.” 1A C.J.S. Accounting § 54 (2005). And “the jurisdiction of a court of equity over matters of account rests upon three grounds[:] the need of a discovery, the complicated character of the accounts, and the existence of a fiduciary or trust relation.” Phillips, 842 So.2d at 1275 (¶14) (quoting Henry v. Donovan, 148 Miss. 278, 114 So. 482, 484 (1927)). All of those appear to have been alleged in the Grahams’ complaint.

¶11. Next, we address the complaint for discovery in chancery, for the second time this year. [Fn 1] We are now presented with the issue of whether the pure discovery action – formerly a “bill of discovery” and now called a “complaint for discovery” – remains a viable and independent cause of action within chancery court jurisdiction. We hold that it does.

[Fn 1] See Kuljis v. Winn-Dixie Montgomery LLC, 2015-CA-00256-COA, 2016 WL 1203823 (Miss. Ct. App Mar. 29, 2016), reh’g denied (Aug. 23, 2016), cert. granted (Nov. 17, 2016).

¶12. In March of 1981 the Mississippi Rules of Civil Procedure were adopted by the Supreme Court of Mississippi, to become effective on January 1, 1982. Seven years later, in State Oil & Gas Board v. McGowan, 542 So. 2d 244 (Miss. 1989), the supreme court was presented with the question of whether the new rules had abolished the common law right to a “Bill of Discovery in Chancery.” It found that they had not:

The bill of discovery is one of the ancient bills used in equity practice. Griffith, Mississippi Chancery Practice, 1925, § 427 p. 422. The Board argues that the bill is no longer available as a discovery devise in Mississippi practice as it was abolished or rendered obsolete by the Mississippi Rules of Civil Procedure effective January 1, 1982. This Court disagrees with this premise.

Griffith, supra, addresses the Bill of Discovery:

But there is a distinct bill in chancery known, strictly speaking, as the bill of discovery, by the use of which disclosure may be required of material facts exclusively within the knowledge or possession of the defendant and which without such discovery no full and adequate proof of them could be made. It had its origin out of the common law rule that no party in interest was a competent witness in any case; and it began at an early date to be allowed in the court of chancery in order to relieve against what otherwise would have resulted in a denial of justice when it happened that the facts or the documents establishing a right or materially aiding therein rested in the exclusive possession or control of the opposite party; and, originally its office was simply to aid a pending suit at law or one about to be brought, and the chancery part of the proceedings were usually deemed as concluded upon the coming in of the full answer making the
disclosures or producing the documents sought. In other words, the obtaining of the discovery was the sole object and end of the bill, no relief other than the discovery being prayed. It was therefore purely ancillary to a trial in some other case and ordinarily in some other forum.

Id. at pp. 422, 423.

Rule 82(a), M.R.C.P. makes clear that nothing in the rules alters the jurisdiction of any court, nor is the power of any court to grant substantive relief changed from what it was before the rules.

It is true that the nomenclature of the legal practice was changed by the abolition of the names of the old writs and procedural names. M.R.C.P. Rule 2. See Dye v. State Ex Rel. Hale, 507 So. 2d 332, 337 n.4 (Miss. 1987). As such, the terminology of a “Bill of Discovery” has been rendered obsolete, and procedurally it is referred to as a “complaint.” However, the adoption of the rules affected procedure, not substance. The power and authority of the Chancery Court to grant the substantive relief of “discovery” remains viable and available although it has been broadened and simplified by M.R.C.P. 26-37. The need for this substantive remedy is evident by this lawsuit.

McGowan, 542 So. 2d at 248-49.

¶13. In addition to McGowan, only two Mississippi Supreme Court cases have addressed historical chancery court “bills” for relief in the context of the Mississippi Rules of Civil Procedure. In Leaf River Forest Products Inc. v. Deakle, 661 So. 2d 188 (Miss. 1995), the court relied heavily on McGowan, including the quotations above, in holding that the jurisdiction of a chancery court to grant a “bill of peace,” like a “bill of discovery,” had also survived enactment of the Rules of Civil Procedure. The more recent case of Moore v. Bell Chevrolet-Pontiac-Buick-GMC LLC, 864 So. 2d 939 (Miss. 2004), also relied on and quoted McGowan with approval.

¶14. While it is true that the complaint for discovery requires a meritorious underlying cause of action if it is to be the sole basis for equitable jurisdiction, [Fn 2] the chancellor observed that there were numerous ones here; the complaint was dismissed not because there was no underlying cause of action but because the complaint did not seek relief for one. The Supreme Court of Mississippi has recognized, however, that a complaint for discovery has discovery itself as the substantive relief sought – “the sole object and end of the bill, no relief other than the discovery being prayed.” McGowan, 542 So. 2d at 248. “Rule 82(a) [of the Mississippi Rules of Civil Procedure] makes clear that nothing in the rules alters the jurisdiction of any court, nor is the power of any court to grant substantive relief changed from what it was before the rules.” Id. at 249.

[Fn 2] See Davis v. Lowry, 221 Miss. 283, 292, 72 So. 2d 679, 681 (1954); see also James W. Shelson, Mississippi Chancery Practice § 18:2 (2016).

¶15. As both discovery and accounting remain independent causes of action under Mississippi law, and Franks has never argued the insufficiency of the Grahams’ allegations on any specific element of either, we conclude that the trial court erred in granting the motion to dismiss for failure to state a claim upon which relief can be granted. We remand the case for further proceedings consistent with this opinion.

In the right case, you might find that the Complaint for Discovery (formerly BOD) is just what you need to get the job done, and the issue is now settled (unless and until the MSSC sees it differently) that it is a viable procedure. Remember: it requires that you have a “meritorious underlying cause of action” that sounds in equity. It’s not enough to file a PI case in chancery seeking damages and add some incidental accounting claim so as to get your discovery relief via BOD. That will most likely simply get you bounced over to circuit court.

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