Separate Summons for Contempt in a Divorce Case

January 8, 2019 § Leave a comment

Note: this post was edited at 11:00, am to correct a misstatement in the first paragraph that contempt is a R81 matter, not a R4 matter as originally posted. Sorry for the error

It’s a fairly common occurrence that a counterclaim for contempt is filed in a divorce action, or a motion for adjudication of contempt is filed in a pending divorce. As we all know, divorce is a R4 matter, and contempt is a R81 matter, so is new, or different, process required to proceed on the contempt claim?

Here’s what the COA said in Thornton v. Thornton, an August 14, 2018, decision:

¶22. Additionally, regarding Brenda’s assignment of error attacking the chancellor’s ruling on her petition for contempt, we recognize that “[a]lthough contempt proceedings in divorce cases often are filed in the same cause number and proceed with the underlying divorce case, they are held to be separate actions, requiring new and special summons under Mississippi Rules of Civil Procedure 81.” Shavers v. Shavers, 982 So. 2d 397, 402 (¶25) (Miss. 2008). We therefore find that Brenda’s argument regarding the contempt proceedings is not properly before this Court because “the contempt action [is] separate from the divorce judgment cited in the notice of appeal.” Williamson v. Williamson, 81 So. 3d 262, 277 (¶34) (Miss. Ct. App. 2012). We now turn to address Brenda’s other issues before us on appeal.

Shaver is a tad peculiar because it involved a removal to federal court followed by a remand back to state court, and a question about what effect that had on state court jurisdiction. Williamson involves a post-appeal contempt in which the COA ruled that the contempt action was no part of the divorce that had been appealed.

Shaver does cite Sanghi v. Sanghi, 759 So.2d 1250, 1255 (Miss. App. 2000), in which the parties were engaged in a long-dormant divorce case. Mrs. Sanghi filed a pleading to have Dr. Sanhi held in contempt for failure to pay child support, and he was served by certified mail, since he was already before the court in the divorce action via R4 summons. Here is the COA’s discussion:

¶ 24. This takes us full circle back to the question of whether Dr. Sanghi received sufficient notice of the April 13 hearing that underlies the actions at the July 2 hearing. To reiterate, Dr. Sanghi received notice of the first hearing that had been scheduled for March 9. That notice was not a summons sent by certified mail under Rule 4(c)(5), though the “motions” were sent by that procedure. Instead it was a “Notice of Court Setting” sent first class mail by the court administrator. This notice made Dr. Sanghi aware of the need to seek a postponement and presumably also to seek counsel to initiate the removal. The result of the requested delay was that the court administrator then mailed a notice on February 16, 1998, that the new hearing would be on April 13, 1998. There is nothing in the record explicitly confirming that Dr. Sanghi received the second notice, but he does state in his brief that the April 13 date was set at his request. There are several indications in the record and briefs but no direct proof that he was aware of the April 13 setting from the time that he sought a postponement of the March 9 hearing, but he just did not appear. Again, the inadequacy of the record is at the peril of the appellant Dr. Sanghi, so we proceed under the stated assumptions.

¶ 25. We have just described what was done. We now look at what should have been done. Whether the judgment is valid depends largely on the nature of the defects that occurred.

¶ 26. Rule 81(d)(3) requires that a petition or complaint be filed to modify or enforce child support and alimony judgments or to seek contempt. The mislabeling of the initiating pleading is a matter of form and would not by itself create a lack of authority for the court to act.

¶ 27. After the petition is filed, a summons is to issue notifying the respondent of the time and place for an appearance. If an answer to the petition is required, the notice should state that as well. M.R.C.P. 81(d)(4) & (5). Nothing is said about the available means of service, but the rule provides that the procedures “control to the extent that they may be in conflict with any other provision of these rules.” M.R.C.P. 81(d). The implication is that where Rule 81 does not even address a necessary procedure covered in the general rules, then the general provisions apply. Since 81 does not speak to the means for service of summons, it cannot conflict with the general rules that do. Not to be overlooked, though, is that Rule 81 controls the content of the summons. Service on an out-of-state defendant cannot be completed under Rule 4 by sending a summons by regular mail. Had a return envelope to send an acknowledgment of receipt been included and then utilized by Dr. Sanghi, that would have sufficed. M.R.C.P. 4(c)(3)(A). Certified mail service on an out-of-state defendant also is adequate, if the receipt is returned. M.R.C.P. 4(c)(5).

¶ 28. The notice of the April 13 hearing was not a Rule 81(d)(5) summons, though it provided most of the relevant information. The only required information under the Rule is that a party is to be told the time and place for the hearing and that no answer is needed. M.R.C.P. 81(d)(4) & (d)(5). The sample form that sets out the summons also indicates that the case name is to be shown, the suit number, the name of the person being served, and that failure to appear may result in a judgment with monetary or other consequences; the petition that initiated the action also is to be attached. M.R.C.P. Form 1D. These forms are not mandatory, but use of them removes any question of sufficiency under the Rules. M.R.C.P. 84. The notice sent by the court administrator contained all of the information that Form 1D would have contained, except that there was no statement regarding the need for a written response nor any language commanding attendance or warning that failure to appear could have significant consequences. The same day or perhaps the day before, the three “motions” were separately sent by certified mail and received by Dr. Sanghi.

Most often these matters get tried by consent, so there is a waiver of the objection and the parties resolve it that way.

But when you are handling a R4 case in which R81 issues later arise, especially against a pro se litigant, I strongly encourage you to issue that extra R81 summons. It’s worth the extra cost, time and effort.

Tried by Consent

December 18, 2018 § Leave a comment

C.V. and Livia Sue Glennis sued their neighbors, Donald and Nerissa Booker for destruction of the Glennis’s shrubs. The chancellor awarded $1,320 in damages, and the Bookers appealed charging that the destruction of the shrubs had not been properly pled, and so was not an issue for trial.

In Booker v. Glennis, handed down October 30, 2018, the COA affirmed the award of damages. Here is how Judge Tindall, writing for a more or less unanimous court, addressed the issue:

¶12. The Bookers argue that the destruction of the shrubs was not an issue properly before the court and therefore was improperly determined.  The Bookers assert that they never consented to trying the claim for damages for the death of the shrubs. The record, however, reveals otherwise. At trial, upon request by the Bookers’ counsel, the chancellor allowed testimony beyond that of the Glennises’ contempt pleadings and treated all pleadings as amended to conform to the evidence tried and “to include the granting of any affirmative relief regarding the two parties . . . so as to minimize the future conflicts between them.” Later in trial, Bookers’ counsel again asked to go further into issues with his examination of Mr. Booker, and the chancellor allowed the expansion because “those issues are before the Court in the complaint and counter-complaint, requesting for affirmative relief filed pro se by the Bookers . . . .”

¶13. Both the Glennises’ counsel and the Bookers’ counsel elicited, on a number of occasions, witness testimony regarding the destruction of the shrubs. Further, during the cross-examination of Mr. Glennis, the chancellor indicated her understanding that “from listening to the testimony and looking at the photograph the shrubs that have been testified [about], [which] were not raised in the pleadings but have been testified [about,] [are being] tried by the consent of the parties . . . .” No party objected to this issue being tried. In fact, at the end of the trial, the Glennises’ counsel moved for their pleadings to be conformed to the proof submitted, and the Bookers’ counsel asserted, “[w]e would make the same motion, Your Honor.” Thereafter, in the subject order of July 5, 2016, the chancellor ordered “all of said pleadings . . . [be treated as] amended to conform to the evidence presented at the conclusion of trial due to multiple issues tried that were not pleaded.”

¶14. Mississippi Rule of Civil Procedure 15(b) permits issues to be tried by express consent of the parties.

When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure to so amend does not affect the result of the trial of these issues.

M.R.C.P. 15(b); Weiss v. Weiss, 579 So. 2d 539, 542 (Miss. 1991). As reflected in the record, counsel for both parties put on evidence regarding the shrub destruction, and counsel for both requested and consented to this amendment of the pleadings. Therefore this issue is without merit.

The record was abundantly clear that the lawyers intended, and the judge ruled, that the pleadings were amended to conform to the proof. That’s good lawyering and judging when the record leaves no doubt.

The Effect of Failure to File an 8.05

November 26, 2018 § 2 Comments

Trey Speights did not bother to appear at his divorce trial, even though he was properly summoned and he did file a contest to the complaint. The chancellor granted a divorce on the ground of habitual drunkenness and equitably divided the marital estate. Trey appealed.

The COA affirmed the granting of a divorce and rejected Trey’s argument that the chancellor erred in allowing Trey’s parents to attempt to represent his interests at trial. The court reversed and remanded the equitable distribution, however.

The court’s opinion on the reversed issues in Speights v. Speights, rendered September, 18, 2018, was penned by Judge Barnes:

¶21. Trey contends that it was error for the chancellor to attempt to distribute the marital estate without requiring both parties to file financial disclosure forms under Uniform Chancery Court Rule 8.05. Trey contends that because of this failure, there was no information upon which the court could make a determination of marital and nonmarital assets, and a subsequent equitable division of the marital assets. We agree.

¶22. Rule 8.05 requires “each party in every domestic case involving economic issues and/or property division” to provide a “detailed written statement of actual income and expenses and assets and liabilities.” The parties must submit their income-tax returns for the preceding year and a general statement of employment history and earnings from the inception of the marriage or from the date of divorce, depending on the type of action. The rule also states that financial statements are not necessary if excused by court order for good cause shown. “It is vital to the effective administration of justice in the domestic relations arena that chancellors undertake this task while in possession of accurate financial
information.” Trim v. Trim, 33 So. 3d 471, 478 (¶16) (Miss. 2010).

¶23. At trial, no mention was made of Rule 8.05 forms. In her appellate brief, Kimberly states that the issue is without merit “because the parties had already exchanged financial affidavits during the discovery process.” Yet, no Rule 8.05 forms are in the record, and there is no indication on the chancery-court docket that any financial forms were exchanged, filed, or excused. However, Trey does not suggest, and we do not find, that there was any fraudulent intent by either party in failing to comply with this rule.

¶24. Citing Luse v. Luse, 992 So. 2d 659 (Miss. Ct. App. 2008), Kimberly argues that this issue is waived since Trey did not appear at the proceedings. We disagree. In Luse, the appellant, John Luse, argued that the chancery court erred in failing to require the parties to file Rule 8.05 statements; therefore, there was no documentation in the record regarding ownership of the property or any evidence justifying the court’s division of property. Luse, 992 So. 2d at 664 (¶16). The chancellor had stated in her findings that because child support and alimony were not at issue, and John failed to appear, the chancery court waived the Rule 8.05 disclosures. Id. at (¶19). This Court found no error in that regard, and that John, in failing to defend the suit in the chancery court, was attempting to do so on appeal, which was improper. Id. at (¶¶18-19).

¶25. However, Luse is distinguishable. While John “never responded to the complaint or entered an appearance in the court,” here, Trey took the actions of hiring counsel and timely answered the complaint, but he did not appear further. Id. at 660 (¶3). Therefore, we cannot say that Trey waived this issue. Because we are reversing and remanding on the property division, as explained below, on remand the chancery court should require both parties to complete and file Rule 8.05 financial forms.

As for the issue of the division of the marital estate, the court went on:

¶26. Trey contends that the chancery court erred in failing to make findings of fact regarding the equitable distribution of the marital property under the Ferguson factors. We agree.

¶27. “To equitably divide property, the chancellor must: (1) classify the parties’ assets as marital or separate, (2) value those assets, and (3) equitably divide the marital assets [based upon the Ferguson factors].” Anderson v. Anderson, 174 So. 3d 925, 929 (¶8) (Miss. Ct. App. 2015). Although the chancellor need not evaluate every Ferguson factor, the chancellor must consider the factors relevant to the case, on the record, in every case. Sproles, 782 So. 2d at 748 (¶25); Heimert v. Heimert, 101 So. 3d 181, 187 (¶24) (Miss. Ct. App. 2012) (citing Lowrey v. Lowrey, 25 So. 3d 274, 280 (¶7) (Miss. 2009)). The policy consideration behind this requirement is “not only essential for appellate purposes,” but to provide trial courts “a checklist to assist in the accuracy of their rulings . . . [and to] reduce[ ] unintended errors that may affect the court’s ultimate decision. The absence of an analysis of these factors and failure to apply the law to the facts at hand create error.” Id.

¶28. Trey is correct that there were no findings of fact by the chancery court regarding the distribution of marital assets. There was no discussion about which assets were marital, and the record is devoid of any mention of the Ferguson factors. Kimberly argues that these findings were not necessary because Trey did not appear, citing Luse in support. Again, we find Luse distinguishable because Trey actually did answer the complaint and denied Kimberly’s allegations regarding accumulation and division of marital property. Although the court was entitled to proceed with trial because Trey did not appear, the court was still required to make the necessary findings for the property distribution.

It is unfortunately too frequent that lawyers show up for trial without 8.05’s in cases where there are financial issues. I had yet another not too long ago.

This case makes it clear that to do so is to plant error in the record, plain and simple. Every finding by a chancellor must be supported by ample and substantial evidence in the record. Without 8.05’s there is not ample and substantial evidence to support the judge’s equitable division. Ergo, error and reversal as here.

I sympathize with the chancellor who now wears the scarlet letters R&R. Reversed and remanded because he was loath to delay this case further by sending the lawyer back to the drawing board to do what he should have done before trial and to cancel a scheduled trial and create an idle day in a crowded docket.

Affidavits in Chancery

October 10, 2018 § 2 Comments

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

There are several affidavits that we use routinely in chancery:

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

Ore Tenus: When is it Allowable?

September 4, 2018 § Leave a comment

Lawyers come before us with agreed orders that read something like this: “On motion of the plaintiff ore tenus, the parties agree that …” and the order goes on to spell out some relief.

Ore tenus, of course is Latin for “by word of mouth,” which means that the motion is made orally, and not in writing.

MRCP 7(b)(1) speaks directly to this:

An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of a writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.

The rule could not be any clearer. You must file a motion in writing asking for particular relief, and you may then follow it up with that agreed order. As I tell lawyers all the time: “Give me an agreed order signed off on by everyone, or set it for hearing.”

There are all kinds of reasons why this is the best practice. The chief one in my opinion is that it makes for a clear record. A motion is filed, and later there is a corresponding order. In fiduciary matters that motion signed and sworn by the fiduciary may be what stands between you and an inquiry by a reviewing court as to whether you have done something improper, as in the case at this link. The written motion also documents for the record exactly what it was that the court was called upon to do and that notice was given.

The one and only exception to the writing requirement is that the motion may be made orally in the course of a hearing or trial. The significance of that exception is that there is a record of what the court is being called upon to do, followed by the court’s immediate or even later ruling. My thinking is that the rule refers to hearings on the record, as opposed to informal hearings or discussions in chambers or even in the courtroom without a record. In those situations, the court should direct someone to file a written motion complying with R7(b)(1) and set it for hearing.

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.

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