May 18, 2020 § Leave a comment
As I mentioned here before, the MSSC’s advisory committee on civil rules spent two years combing through the MRCP to identify language that needs to be updated, changed to reflect case law, and otherwise revised. A slew of proposed changes were sent up from the committee.
This week the court handed down orders granting the committee’s motions on Rs 1 (Scope of the Rules), 15 (Amendments), 43 (Taking of Testimony), 63 (Disability of a Judge), and 71A (Eminent Domain). These particular amendments are minor and eliminate redundant and non-useful matter. The changes take effect July 1, 2020.
Proposed changes to Rs 6 and 56 are up for comment. The changes to 56 are particularly noteworthy.
This batch of amendments are likely harbingers of more to come, and you need to pay attention to what the court is doing so that you comply with and adapt to the changes.
January 29, 2020 § Leave a comment
When the chancellor awarded Amanda Prestwood rehabilitative alimony, his opinion pointed out that the record was bereft of evidence of daycare expenses, an itemization of debt she claimed she owed to her father, credit card debt, and student loan debt. Believing the award inadequate, Amanda filed a R59 motion to alter or amend the judgment, or, in the alternative, for a new trial. She asked the court to reweigh the evidence at trial, along with additional evidence attached to the motion, which included: a daycare cost sheet; a lease agreement; a promissory note; credit card statements; and her student loan debts. The court overruled the motion, and Amanda appealed.
The COA affirmed in Prestwood v. Prestwood, decided December 10, 2019. The opinion by Judge McDonald, is a routine analysis of rehabilitative alimony. You can read it for yourself.
The point I want to make here is that you should not use R59’s new trial provision to try to get before the court evidence that you did not, for whatever reason, at the trial. R59(a) specifies that the court in a non-jury case may grant a new trial “for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.” Griffith says that, after completion of the term, the court could only grant a rehearing for newly discovered evidence or “supervening facts.” Newly-discovered is self-explanatory. Supervening facts would include factual circumstances that have changed since entry of the judgment which, had they been known to or foreseen by the court, would have changed the court’s ruling. Amanda’s post-trial proof fits neither category. Unless the opinion neglected to mention that all of her attachments to the motion were newly-discovered, she could have presented every bit of it at trial. Here is what Justice Griffith said about it:
It is the earnest desire of courts, and especially of courts of equity, to render decision only upon a full and fair exposition of all the pertinent material facts, and the courts will always be interested in any presentation that discloses any material fact not theretofore brought into the case. Nevertheless the law requires diligence from suitors, and when a trial has been had the question is not always whether justice has been done but whether the party complaining could, by the exercise of proper diligence, produced a different result … for while righteous results in specific cases are the great ends to be attained in equity decrees, it is also essential that there be an end to litigation, without unrighteous delays.
Griffith, Mississippi Chancery Practice, 2d Ed., 1950, § 632.
You need to think of final hearing as your one shot to get everything into the record that you will need to win the case on appeal, if necessary. The judge can’t give you a second chance without prejudicing the other party.
January 14, 2020 § 4 Comments
Yesterday I mentioned the high court’s order amending MRCP 26.
There is plenty of other change to the MRCP in the works.
If you will go to the MSSC’s site and click on Research/Rules/Rules for Comment, you will find nine MRCP posted inviting your comments.
The rules currently for comment are (Clicking on the link will take you to the committee’s motion):
54 Judgments and costs. There also is a separate letter motion .
Although the comment deadline has elapsed on all but one posted rule, I have been old that the court will consider all comments received until the court takes up the rule for action. If my info is correct, why not take the opportunity to have your input?
The Advisory Committee on Civil Rules has sent more than a dozen more proposals for changes to other MRCP that the court has not (yet) put up for comment. Stay tuned.
January 13, 2020 § 2 Comments
In case you missed it, the MSSC adopted a new version of MRCP 26 that went into effect January 1, 2020.
You can find it at this link. There’s too much new to cram into this space. You would do well to study it and change your practice accordingly.
As I see it, the changes will primarily affect three groups:
- Lawyers who do discovery.
- Lawyers who don’t bother to read the rules.
- Lawyers who use expert witnesses.
December 30, 2019 § Leave a comment
If hindsight is, indeed 2020, then it follows that 2020 should be the year of hindsight, right?
But we do have some things to look forward to in 2020. So using foresight, here are some:
- A slew of amended MRCP. The Supreme Court Civil Rules Advisory Committee has been busy over the past two years studying and revising the MRCP and Advisory Committee Notes to make them more functional, to address problems that have surfaced since the rules were adopted in 1982, and to clear up inconsistencies. The committee has sent a number of proposed amended rules up to the MSSC, and already the court has published an amended Rule 26. Look for plenty more in 2020. In fact, go to courts.ms.gov and click on Research/Rules/ Rules for Comment and you’ll see many there now for your study and comment. I encourage you to add your thoughtful comments. The end result of the changes will be more clarity and functionality.
- New chancery court rules (UCCR). In October, the Conference of Chancery Judges unanimously approved new, revised UCCR and filed a motion with the MSSC to adopt them. If the court does adopt them, the several of you who do read and try to follow them will find them more accessible, clearer, updated, and consistent in form.
- The GAP Act. It will be a new era for guardianships and conservatorships. Gone will be the confusing and sometimes contradictory web of statutes, replaced by a more streamlined system with clearer nomenclature and procedures. Yes, there will be a learning curve, and, yes, there are some tweaks that must be done in the upcoming legislative session to address some questions, but overall it will be an improvement.
- Bell on Mississippi Family Law. Professor Bell is working on the third edition of her treatise, and it should be out in the new year.
- New law every Tuesday and Thursday. For those of you who have bemoaned developments like those mentioned above, don’t forget that the law is ever-changing and evolving. Always has been and always will. If you question that, just read the hand-downs from the COA and MSSC every Tuesday and Thursday. There you will find weekly revelations, some of which challenge or even wipe out your long-held legal assumptions.
November 18, 2019 § Leave a comment
Donald Pritchard filed a Complaint for Divorce against his wife, Lisa, on March 17, 2017. Lisa by then had moved to Alabama.
Donald mailed a copy of the complaint and summons via certified mail to two addresses that Lisa was known to use in Alabama: her residence; and her mother’s. Neither envelope was marked, “restricted delivery.” The copy mailed to Lisa’s address was neither delivered nor refused; the postal service returned to sender stamped “unclaimed.”
As for the copy delivered to Lisa’s mother’s address, Lisa’s sister, Pamela Berthiaume, signed the receipt indicating she was Lisa’s agent (later denied by Lisa). Donald filed the receipt as proof of service. The clerk noted on the docket that Lisa’s answer was due on May 14, 2017. Lisa’s sister met with Lisa, gave her the copy of pleading and summons; and read it with her to help her understand.
On the day appointed for hearing, Lisa did not appear, and the chancellor granted a divorce on the ground of desertion, entering its final decree on June 5, 2017.
Lisa filed a motion to set aside the divorce judgment on June 13, 2017, claiming that the court lacked personal jurisdiction because she was never properly served with process. A hearing on the motion was held in April, 2018, and the court overruled it finding that: Lisa was properly served by certified mail; she had actual notice of the complaint, but she failed to answer or appear; and the court did consequently have jurisdiction.
On appeal, the COA reversed, vacated, and remanded. The case, Pritchard v. Pritchard, was handed down August 27, 2019. Predictably, the opinion penned by Judge Corey Wilson points out that the technical requirements of MRCP 4 were not met, and the fact that Lisa had actual knowledge of the suit was not enough to satisfy R4. There’s nothing novel here; you can read it for yourself.
In dissent, Judge Jack Wilson makes the intriguing argument that Lisa indeed was served with process — personally by her sister Pamela Berthiaume. Here’s how he explains it:
¶36. I agree with the majority that Donald’s attempts to serve Lisa by certified mail were ineffective because the mailing was not marked “restricted delivery” and was returned as “unclaimed.” See M.R.C.P. 4(c)(5); Long v. Vitkauskas, 228 So. 3d 302, 304 (¶6) (Miss. 2017) (“Mississippi Rule of Civil Procedure 4(c)(5) requires a mailing of process to an out-of-state, natural defendant be marked ‘restricted delivery.’”); Bloodgood v. Leatherwood, 25 So. 3d 1047, 1051 (¶16) (Miss. 2010) (“A returned envelope marked ‘unclaimed’ is insufficient to satisfy service requirements under Rule 4(c)(5).”).
¶37. However, the chancery court did not err by denying Lisa’s motion to set aside the divorce decree because there was sufficient evidence for the court to find that Lisa was personally served with the summons and complaint. A “sheriff or process server” may accomplish personal service on a competent adult “by delivering a copy of the summons and of the complaint to [her] personally.” M.R.C.P. 4(d)(1)(A). A “process server” may be “any person who is not a party and is not less than 18 years of age.” M.R.C.P. 4(c)(1).
¶38. Here, Donald mailed a copy of the summons and complaint by certified mail to Lisa at her mother’s address. Lisa did not accept the mailing. However, Lisa’s sister [Pamela] (Berthiaume) signed for it and then personally delivered the complaint to Lisa. Berthiaume testified that she even read the complaint to Lisa. [Fn 6] Thus, Berthiaume “personally” served the complaint consistent with the plain language and requirements of Rule 4(c)(1).
[Fn 6] At the hearing on Lisa’s motion to set aside the divorce decree, Berthiaume testified, in response to a direct question from the chancellor, that the document that she delivered to Lisa was Donald’s complaint for a divorce. In his bench ruling at the conclusion of the hearing, the chancellor found that Berthiaume had delivered the summons and complaint to Lisa. See Smith v. Church Mut. Ins., 254 So. 3d 57, 62 (¶11) (“As to issues of service of process, this Court reviews the trial court’s findings for an abuse of discretion.”). Berthiaume later signed an affidavit in which she claimed that she was “confus[ed]” when she testified in court. In her affidavit, Berthiaume asserted that the document that she delivered and read to Lisa was actually a proposal for an irreconcilable differences divorce, not a complaint. Lisa submitted Berthiaume’s affidavit in support of her motion to reconsider the denial of her motion to set aside the divorce decree. However, Lisa never produced the alleged proposal for an irreconcilable differences divorce. The chancellor denied Lisa’s motion to reconsider.
¶39. The majority opinion suggests that personal service was not effective because Donald never asked Berthiaume “to act as a process server consistent with Rule 4(c)(1)” or because “there is no proof of service to substantiate a date on which Lisa was personally served.” Ante at ¶27. The majority then states personal service was ineffective because there was not “strict compliance” with “the plain requirements of Rule 4.” Ante at ¶28.7 With respect, I disagree.
¶40. The plain language of Rule 4(c)(1) requires nothing more than personal delivery of the summons and complaint by a nonparty adult. As the chancellor found, that happened in this case. Rule 4(c)(1) does not require that the “process server” agree or even intend to act as such. In addition, Rule 4(f) specifically provides that “[f]ailure to make proof of service does not affect the validity of the service.” M.R.C.P. 4(f) (emphasis added). Because Donald did not file proof of personal service, he was not entitled to an evidentiary presumption of valid service. See Collins v. Westbrook, 184 So. 3d 922, 929 (¶18) (Miss. 2016) (explaining that a properly executed proof of service raises a rebuttable presumption that service occurred). However, based on Berthiaume’s own testimony, the chancellor found that personal service had in fact occurred. Thus, the lack of a properly executed and filed proof of personal service is unimportant.
¶41. Our courts have not addressed this issue previously, but the Washington Supreme Court held that similar “secondhand” service constituted valid personal service under that state’s substantively identical rules of procedure. See Scanlan v. Townsend, 336 P.3d 1155, 1160-62 (¶¶22-34) (Wash. 2014). In that case, “a process server delivered a copy of the summons and complaint to [the defendant’s father] at his home. But [the defendant (Townsend)] did not live at her father’s home. Townsend’s father later handed the summons and complaint directly to Townsend . . . .” Id. at 1156 (¶1). Townsend denied that such “secondhand” service was effective. However, the Washington Supreme Court rejected her argument, reasoning that “[n]othing in the plain language of [Washington Civil Rule] 4(c) precludes Townsend’s father, who is over 18 years old, is competent to be a witness, and is not a party, from having authority to serve Townsend.” Id. at 1161 (¶26).
¶42. In Scanlan, the Washington Supreme Court followed a prior Washington Court of Appeals decision in a case that involved personal service by the defendant’s neighbor. See id. at 1161-62 (¶¶31-34) (discussing Brown-Edwards v. Powell, 182 P.3d 441 (Wash. Ct. App. 2008)). In Brown-Edwards, a process server mistakenly delivered the summons and complaint to the defendant’s neighbor, but the neighbor then personally delivered the documents to the defendant. Scanlan, 336 P.3d at 1161 (¶31). The neighbor’s delivery was deemed valid personal service because the neighbor “certainly [met] the criteria for a process server.” Id. at (¶32) (quoting Brown-Edwards, 182 P.3d at 442 (¶6)). As the court explained, Nothing in the rule requires that a process server have a contractual obligation to serve process. Nor is there any requirement of proof of intent to serve process. And we find nothing that would prohibit a person who comes into possession of a summons and complaint by defective service from being a competent process server. The rule prohibits only a party to the action from serving process. Id. (quoting Brown-Edwards, 182 P.3d at 442 (¶6)). In short, a person can effect valid personal service even if she does so unwittingly.
¶43. The reasoning of the Washington courts is persuasive. Berthiaume came into possession of the summons and complaint as a result of a defective attempt at service by certified mail, but she then personally served Lisa in a manner consistent with the plain language and requirements of Rule 4(c)(1). We are bound to apply the “plain language” of the rule rather than “our own notions” of how the rule perhaps should read. Poindexter v. S. United Fire Ins. Co., 838 So. 2d 964, 971 (¶30) (Miss. 2003) (plurality op.) (applying Mississippi Rule of Civil Procedure 15(a)); accord id. at 972 (¶35) (Waller, J., concurring). On the facts of this case, valid personal service occurred under Rule 4(c).
¶44. In summary, there was sufficient evidence for the chancellor to find that Berthiaume personally delivered the summons and complaint to Lisa, and such personal service satisfies the plain language of Rule 4(c)(1). [Fn 8] I would affirm the decision of the chancery court
denying Lisa’s motion to set aside the divorce decree. Therefore, I respectfully dissent.
[Fn 8] Lisa did not receive notice of the hearing on Donald’s complaint. However, both this Court and the Supreme Court have held that there is no obligation to give notice of such a hearing to a party who fails to enter an appearance or answer a complaint for divorce. Lindsey v. Lindsey, 818 So. 2d 1191, 1194 (¶11) (Miss. 2002); Stinson v. Stinson, 736 So. 2d 1259, 1261-62 (¶¶6-10) (Miss. Ct. App. 1999); Carlisle v. Carlisle, 11 So. 3d 142, 145 (¶10) (Miss. Ct. App. 2009).
Whichever opinion you find persuasive, you must admit that Judge Wilson has a good point (think about that for a minute).
It would be interesting to see what the MSSC would do with this issue.
October 7, 2019 § 1 Comment
MRCP 7(b)(1) reads, “An application to the court for an order shall be by motion … .” A motion, then is merely a request for the court to enter an order; it’s not the order itself.
Put another way: a motion for continuance does not get you that continuance until the judge enters an order continuing; a motion to withdraw from representation does not get you out of the case until the judge signs an order letting you out.
This is basic stuff, but some lawyers don’t seem to get it.
In one case a couple of months ago a lawyer did not show up for a final hearing. The other attorney advised that he had filed a motion to withdraw the afternoon before, but he did not appear to present it to the court. He also did not provide a paper copy of it to the court as required by the MEC rules since it was within 24 hours of trial. As things developed, though, I doubt that I would have granted his motion because, as became painfully obvious in the course of the hearing, his client had an intellectual disability and struggled to present her side of the case. Struggled mightily. That earned that lawyer a show-cause order.
While I’m on the subject of motions to withdraw, has anybody read UCCR 1.08? Does anybody have a copy of it? Well, here it is in its elegant simplicity and entirety: “When an attorney makes an appearance for any party in an action, the attorney will not be allowed to withdraw as counsel for the party except upon written motion and after reasonable notice to the client and opposing counsel.”
It’s not enough to file the motion and present an agreed order signed by you and your client. It’s not enough to file a motion and present an agreed order signed by you and opposing counsel. As I have often said in chambers, “Give me an agreed order or set it for hearing,” meaning for a motion to withdraw to get your client and opposing counsel to sign off on it or set it for hearing.
I have had lawyers file motions for continuances and then call my staff attorney asking whether they have to show up. We always offer to hear those in chambers before the trial date if the lawyers both are willing to come. Often the reason is that the lawyer has a conflicting setting in another county. My question is: why would you take a case knowing you have a calendar conflict without first calling opposing counsel to see whether she will agree to a continuance? I know, you need the fee. But you are causing everyone a problem, the judge in particular (ok, that’s from my perspective).
August 28, 2019 § Leave a comment
Yesterday we touched on the concept of costs, as distinguished from fees and expenses.
In the case of Hubbard v. Delta Sanitation of Mississippi, 64 So. 3d 547, 559 (Miss. Ct. App. 2011), the COA, by Judge Myers, reversed a trial court’s award of certain expenses as costs in a case. Although it addresses the seldom-used MRCP 68, its rationale applies to other rules involving costs. The opinion includes a scholarly, if somewhat lengthy, exposition on costs that you might find useful if you are briefing or arguing the point and need more authority than mere Advisory Committee Notes:
¶ 45. This is a case of first impression with regard to Rule 68. Because we are asked to interpret Rule 68, we do so de novo. Miss. Transp. Comm’n v. Fires, 693 So.2d 917, 920 (Miss.1997).
¶ 46. There is scant Mississippi case law dealing with Rule 68. The rule is patterned after Federal Rule 68. Harbit v. Harbit, 3 So.3d 156, 162 (¶ 20) (Miss.Ct.App.2009). Mississippi’s version states, in pertinent part, that:
At any time more than fifteen days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued…. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the cost incurred after the making of the offer.
¶ 47. The purpose of Rule 68, and its federal counterpart, is “to encourage settlements, avoid protracted litigation, and protect the party who is willing to settle from the burden of costs that subsequently come.” Fiddle, Inc. v. Shannon, 834 So.2d 39, 49 (¶ 38) (Miss.2003) (quoting M.R.C.P. 68 cmt.); see also Marek v. Chesny, 473 U.S. 1, 10, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985) (“[Federal] Rule 68’s policy of encouraging settlements is neutral, favoring neither plaintiffs nor defendants; it expresses a clear policy of favoring settlement of all lawsuits.”).
¶ 48. In Shannon, our supreme court spoke to the operation of the rule. Citing Delta Air Lines, Inc. v. August, 450 U.S. 346, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981), the Shannon court found that in order to trigger Rule 68’s “cost-shifting procedure[,]” the offeree must obtain a judgment. Shannon, 834 So.2d at 49 (¶ 39). Shannon held that because the defendant was the prevailing party, the trial court did not err in denying the defendant’s Rule 68 motion. Id.; cf. Johnston v. Stinson, 495 So.2d 1023 (Miss.1986) (holding that the trial court erred in requiring the plaintiff-offeree to pay “court cost” under Rule 68 because the plaintiff obtained a judgment more favorable than the defendant’s offer of judgment); see also Poteete v. Capital Eng’g, Inc., 185 F.3d 804, 806 (7th Cir.1999) ( “[Federal] Rule 68 is applicable only to cases the defendant loses.”); La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 333 (5th Cir.1995) (per curiam) (“If a plaintiff takes nothing … [Federal] Rule 68 does not apply.”).
¶ 49. The term “costs” is not defined in our Rule 68 or its federal counterpart. Neither Shannon nor Johnston addressed the meaning of “costs” under the rule. This Court touched on the subject in Harbit, but the issue there was limited to the propriety of attorney’s fees having been awarded as costs in a divorce action.
¶ 50. Harbit held that the chancery court erred when it used Rule 68 to award attorney’s fees as part of costs. Harbit, 3 So.3d at 162 (¶ 20). Relying on federal jurisprudence as persuasive authority, Harbit noted that Marek held “the most reasonable inference” of the meaning of “costs,” in Federal Rule 68, is that the term “was intended to refer to all costs properly awarded under a relevant substantive statute or other authority.” Id. (quoting Marek, 473 U.S. at 9, 105 S.Ct. 3012). Harbit then explained:
We are not aware of any Mississippi statute that authorizes a chancellor to award attorney’s fees, as part of costs, to a prevailing party in a divorce proceeding. While there is plenty of authority authorizing a chancellor, in the chancellor’s discretion, to award attorney’s fees to a party in a divorce action, that authority is decisional law and is based on financial needs of the party. Therefore, we find that the chancellor erred in using Rule 68 to calculate the amount of attorney’s fees awarded….
Id. at (¶ 21) (internal citation omitted).
¶ 51. Federal courts have interpreted “costs” under Federal Rule 68 as referring to those costs ordinarily awarded under Rule 54(d) of the Federal Rules of Civil Procedure. Hedru v. Metro–North Commuter R.R., 433 F.Supp.2d 358, 360 (S.D.N.Y.2006); Thomas v. Caudill, 150 F.R.D. 147, 149 (N.D.Ind.1993) (citing 7 Moore’s Federal Practice § 68.06(3) (3d ed.1997)). In Thomas, the district court opined that the United States Supreme Court indicated in Marek that “the position in Moore’s Federal Practice is the correct definition of ‘costs’ and that the costs which a defendant is entitled to recover under [Federal] Rule 68 are limited to the costs allowable under Federal Rule of Civil Procedure 54(d).” Thomas, 150 F.R.D. at 149. Thomas based its finding on Marek’s comment that “Rule 68 does not come with a definition of costs; rather, it incorporates the definition of costs that otherwise applies to the case.” Id. (quoting Marek, 473 U.S. at 11 n. 2, 105 S.Ct. 3012).
¶ 52. In Delta Air Lines, the Supreme Court indicated that there is an intrinsic link between Federal Rules 68 and 54, stating:
Rule 68 provides an additional inducement to settle in those cases in which there is a strong probability that the plaintiff will obtain a judgment but the amount of recovery is uncertain. Because prevailing plaintiffs presumptively will obtain costs under Rule 54(d), Rule 68 imposes a special burden on the plaintiff to whom a formal settlement offer is made. If a plaintiff rejects a Rule 68 settlement offer, he will lose some of the benefits of victory if his recovery is less than the offer. Because costs are usually assessed against the losing party, liability for costs is a normal incident of defeat.
Delta Air Lines, 450 U.S. at 352, 101 S.Ct. 1146.
¶ 53. In Johnston v. Penrod Drilling Co., 803 F.2d 867 (5th Cir.1986), the Fifth Circuit Court of Appeals, interpreting Delta, also acknowledged the interrelationship between the two rules, and the court noted the following distinction:
Rule 68 is a mandatory rule designed to operate automatically by a comparison of two clearly defined figures. In Delta [,] … the defendant argued that Rule 68 operated to shift the costs to the plaintiff when the defendant’s $450 offer was rejected and defendant later obtained a take nothing judgment. The [Supreme] Court held that Rule 68 did not operate to shift costs because a take nothing judgment was not a “judgment finally obtained by the offeree.” Our interpretation of Rule 68 is consistent with the teaching of Delta: it is a mandatory rule to be narrowly applied. [Federal] Rule 54(d) gives the district court the necessary discretion to tax costs against the party who should equitably bear them. Rule 68, which provides that the plaintiff must pay costs if its conditions are met, is not such a rule.
Penrod Drilling, 803 F.2d at 870–71.
¶ 54. Federal Rule 54(d) states in relevant part: “Unless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” Rule 54(d) of the Mississippi Rules of Civil Procedure is patterned after former Federal Rule 54(d), and states in part: “Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs….”
¶ 55. As with Rule 68, there is little Mississippi case law dealing with our Rule 54(d). The United States Supreme Court spoke to Federal Rule 54(d) in Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987), superseded on other grounds, 42 U.S.C. § 1988 (1991). There, the Court addressed “the power of federal courts to require a losing party to pay the compensation of the winner’s expert witnesses.” Id. at 438, 107 S.Ct. 2494.
¶ 56. Crawford held that “when a prevailing party seeks reimbursement for fees paid to its own expert witnesses, a federal court is bound by the limit [ations] [set out] in [28 U.S.C.] § 1821[ ] [and § 1920], absent contract or explicit statutory authority to the contrary.” Id. at 439, 107 S.Ct. 2494. The Supreme Court explained that the term “costs” as used in Rule 54(d) is defined by § 1920, which specifically enumerates expenses that a federal court may tax as costs under that rule. Id. at 441–42, 107 S.Ct. 2494. The Court said, “§ 1821 specifies the amount of the fee that must be tendered to a witness, § 1920 provides that the fee may be taxed as a cost, and [Federal] Rule 54(d) provides that the cost shall be taxed against the losing party unless the court otherwise directs.” Id. at 441, 107 S.Ct. 2494.
¶ 57. Briefly, we note that Federal Rule 54(d) was amended on April 30, 2007, effective December 1, 2007, and the language, “unless the court otherwise directs” was removed. In speaking to former Federal Rule 54(d), the Sixth Circuit Court of Appeals explained that “the discretion that Rule 54(d) gives courts (the ‘unless the court otherwise directs’ proviso) is discretion to decline requests for costs, not discretion to award costs that [28 U.S.C.] § 1920] fails to enumerate.” In re Cardizem CD Antitrust Litig., 481 F.3d 355, 359 (6th Cir.2007) (emphasis added).
¶ 58. In Ezelle v. Bauer Corp., 154 F.R.D. 149, 152 (S.D.Miss.1994), the district court spoke to the operation of Federal Rule 68 in conjunction with Federal Rule 54(d):
The party who prevails in a lawsuit ordinarily recovers costs from the losing opponent pursuant to Rule 54(d) of the Federal Rules of Civil Procedure. However, the award of costs under this Rule is a matter of the court’s discretion, and Rule 54(d) permits the district court, on a showing of good cause, to require a prevailing party to bear its own costs. Delta Airlines [Air Lines][,] 450 U.S. [at] 353–56, 101 S.Ct. 1146…. Therefore, the award of costs is not a merely mechanical event and remains, generally speaking, a matter of a district court’s discretion.
However, the district court may be deprived of its discretion under Rule 54(d) where Rule 68 of the Federal Rules of Civil Procedure properly comes into play. [Penrod Drilling,] 803 F.2d [at] 869[.]
¶ 59. The Eleventh Circuit Court of Appeals applied Crawford’s holding in Parkes v. Hall, 906 F.2d 658, 658 (11th Cir.1990), a personal-injury diversity case, where Federal Rule 68 was invoked. The question in Parkes was whether Federal Rule 68, once triggered, obligated the plaintiff to pay costs in addition to those allowed by statute. Id. at 659. Parkes held that “costs which are subject to the cost-shifting provisions of Rule 68 are those enumerated in 28 U.S.C. § 1920, unless the substantive law applicable to the particular cause of action expands the general § 1920 definition.” Id. at 660; see also Knight v. Snap–On Tools Corp., 3 F.3d 1398, 1404 (10th Cir.1993) (holding same); Phillips v. Bartoo, 161 F.R.D. 352, 354 (N.D.Ill.1995) (“absent substantive law authorizing the expansion of § 1920 provisions, Rule 68 ‘costs’ are limited to the definition in § 1920”).
10 ¶ 60. Mississippi does not have a specific statute comparable to that of § 1920, which enumerates all the expenses a court may tax as costs. Rather, items that may be taxed as costs can be found throughout the Mississippi Code.
¶ 61. Other states with procedural rules similar to ours have concluded that costs under their own respective version of Rule 68 are limited to those costs allowable under their version of Rule 54(d). The Court of Appeals of Indiana, in interpreting the term “costs” under Indiana Trial Rule 68, which is almost identical to our Rule 68, said the following: “ ‘Cost’ is a term of art with a specific legal meaning, and we must presume that it was used consistently absent evidence of a contrary intent by the drafters.” Missi v. CCC Custom Kitchens, Inc., 731 N.E.2d 1037, 1039 (Ind.Ct.App.2000). The Missi court held that there is nothing “on the face of T.R. 68 to indicate that the drafters intended a more expansive definition of ‘costs’ than its traditional meaning as embodied in [Indiana Trial Rule] 54(D)….” Id.7
¶ 62. The Supreme Court of Appeals of West Virginia, in Carper v. Watson, 226 W.Va. 50, 697 S.E.2d 86, 95 (2010), held that:
the “costs” that may be assessed against a plaintiff under West Virginia Rule of Civil Procedure 68(c) include only those expenses defined as “costs” by statute. Typically, costs under Rule 68(c) will be limited to “court costs,” i.e., the costs taxable under West Virginia Rule of Civil Procedure 54(d).
¶ 63. We find the logic and reasoning behind the foregoing interpretations persuasive. There being no express indication in the rules of civil procedure, or controlling case law, to the contrary, this Court must presume that the drafters of Rule 68 intended for the term “costs” to be used consistent with Rule 54(d). Therefore, we hold that the costs for which Delta is entitled to recover under Rule 68 are limited to those costs allowable under Rule 54(d). The operation of Rule 68 in this case simply made it mandatory, rather than discretionary, for the trial court to impose upon Hubbard the costs allowed under Rule 54(d) after Delta made its offer of judgment.
¶ 64. But that does not end our analysis. As with Rule 68, Rule 54(d) does not expressly define what constitutes “costs.” Rather, as previously mentioned, Rule 54(d) states in part: “Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs….” Here, there is no underlying, substantive statute with a cost provision contained therein that forms the basis of Hubbard’s case, as it is predicated on common-law negligence. That no such statute governs in this instance means that the trial court was limited to the usual statutory costs. We explain.
¶ 65. Historically, costs were unknown at common law. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); see also Vincennes Steel Corp. v. Miller, 94 F.2d 347, 348 (5th Cir.1938) (“Costs, as we know them today, were unknown to the common law, and, without the aid of statute, liability therefor rests only upon the party incurring them, as for any other debt.”). Thus, “[c]osts are generally allowable only when authorized by statute or court rule.” 20 C.J.S. Costs § 3 (2007).
¶ 66. In Martin v. McGraw, 249 Miss. 334, 340, 161 So.2d 784, 786 (1964), our supreme court stated that courts of equity have “no inherent jurisdiction to award costs independently of statute.” The supreme court reiterated this principle in Ex parte Ashford, 253 Miss. 768, 179 So.2d 192 (1965). There the court held:
(1) The cost alleged to be due the circuit clerk is cost growing out of many ‘state fail’ cases, but since Mississippi Code Annotated Section 3952(d) (1956) prevents an allowance to the circuit clerk by this Court of a sum in excess of the sum set out in the statute, we cannot allow additional cost over and above the amount set out in the law.
(2) This Court has no implied or inherent power to award cost, and may allow only such cost as the Legislature may expressly permit or direct to be awarded by the Court in acts of the Legislature. Martin v. McGraw, 249 Miss. 334, 161 So.2d 784 [ (1964) ]; 20 C.J.S. Costs § 2 (1940).
Id. at 768–69, 179 So.2d at 192.
¶ 67. In Board of Trustees of Hattiesburg Municipal Separate School District v. Gates, 467 So.2d 216, 218 (Miss.1985), the supreme court held that the transcription costs submitted by a freelance-court reporter, and already prepaid by a school board, were statutorily set and, thus, “limited thereby.” Finding that the court reporter had charged an appearance fee, which the statute made no provision for, the supreme court remanded the matter back to the chancery clerk for retaxation of costs. Id. at 219. In its discussion, the supreme court parenthetically referred to § 1920. See id. at 218 (noting that in the federal courts, “items to be taxed as costs under 28 U.S.C. § 1920 must be within express language of statute”).
¶ 68. In Aeroglide Corp. v. Whitehead, 433 So.2d 952, 952–53 (Miss.1983), due to a mistrial caused by defense counsel’s improper cross-examination, the trial court awarded $14,784.51 to the plaintiffs “for expenses incurred in preparation of trial pursuant to its inherent authority to control the proceedings before it and the conduct of the participants therein.” The Mississippi Supreme Court reversed and remanded the case to the trial court for assessment of the “usual and statutory costs” against the defendants. See id. at 953 n. 2 (acknowledging that the defendants were “liable for the full amount of statutory costs incurred up until the time the mistrial was declared”). Id. The Whitehead court stated:
We agree with the learned trial judge that all courts possess the inherent authority to control the proceedings before them including the conduct of the participants. However, an examination of our holding in Newell v. State, 308 So.2d 71 (Miss.1975) lends no support for the action taken by the trial court in the case sub judice.
¶ 69. The aforementioned Mississippi cases are very instructive in that their holdings are consistent with the general language found in the comment to Rule 54(d),9 a portion of which states: “costs represents those official expenses, such as court fees, that a court will assess against a litigant.” We now examine the items awarded as costs in this case.
A. Expert Fees
11 ¶ 70. As a general rule, “[f]ees for expert witnesses, beyond the ordinary fees authorized for witnesses …, are not taxable as costs unless there is a statute specifically allowing such an expense.” 20 C.J.S. Costs § 123 (2007). There are a number of Mississippi statutes that allow for expert-witness fees to be taxed as costs in certain cases. None, though, apply in this case.
¶ 71. Rule 706 of the Mississippi Rules of Evidence gives our trial courts general authority to appoint expert witnesses and provide for their compensation. But it is inapplicable because Delta’s expert witness was not court appointed.
¶ 72. What is applicable is Mississippi Code Annotated section 25–7–47 (Rev.2010), one of Mississippi’s fee statutes. Section 25–7–47 is Mississippi’s counterpart to § 1821, the federal statute discussed in Crawford, and it authorizes witness fees. The statute provides that witnesses in the county, circuit, and chancery courts shall receive $1.50 per day in attendance fees and five cents per mile to and from the court. Miss.Code Ann. § 25–7–47.
¶ 73. This being the statutory limit allowed by law, we hold that Hubbard may not be taxed with costs in excess thereof with respect to Delta’s expert witness.
¶ 74. As to Delta’s assertion that Hubbard waived his challenge on this point, it is not well taken. Hubbard’s counsel merely informed the trial court, albeit inaccurately, what he believed the law to be. The law does indeed afford our trial courts some discretion with regard to litigation expenses that a litigant must ordinarily bear. But that discretion is very limited.
¶ 75. The comment to Rule 54(d) states in relevant part: “Absent a special statute or rule, or an exceptional exercise of judicial discretion, such items as attorney’s fees, travel expenditures, and investigatory expenses will not qualify either as statutory fees or reimbursable costs.” This language is congruent with the supreme court’s longstanding view with respect to attorney’s fees and litigation expenses. See Grisham v. Hinton, 490 So.2d 1201, 1205 (Miss.1986) (“With the sole exception of punitive damages cases, in the absence of contractual provision or statutory authority therefor, this Court has never approved awarding trial expenses and attorney’s fees to the successful litigant.”); see also Smith v. Dorsey, 599 So.2d 529, 550 (Miss.1992) (opining that such expenses are analogous to the grant of punitive damages); but see Universal Life Ins. Co. v. Veasley, 610 So.2d 290, 295 (Miss.1992) (where the supreme court carved out a narrow exception to the general rule and held that attorney’s fees “and the like” may be awarded in cases where an insurer wrongly denies a claim even though the party’s conduct does not warrant punitive damages).
¶ 76. In Allred v. Fairchild, 916 So.2d 529, 532–33 (¶¶ 9–12) (Miss. 2005), the supreme court applied the Veasley exception in a breach-of-contract case and upheld an award of accounting fees to the plaintiff because the defendant, who had entered into a confidential business relationship with the plaintiff, had actively engaged in fraud and deceit throughout the parties’ business dealings. Relying on the comment to Rule 54(d), the supreme court said, “[e]xceptional circumstances must exist in order for the court to exercise exceptional judicial discretion” under Rule 54(d). Allred, 916 So.2d at 532 (¶ 10) (indicating that such exceptional circumstances must be shown in the record).
¶ 77. We find no exceptional circumstances, as contemplated by Veasley and Allred, present in this case. Nor do we find that Hubbard waived this point of contention.
B. Copying/Printing Costs, Trial Materials, Court Reporter
¶ 78. We know of no statutory authority or court rule that authorizes these items to be awarded as ordinary costs. The copying expenses sought by Delta in this case are considered office expenses of an attorney and are not recoverable. See, e.g., 20 C.J.S. Costs § 109 (2007). The expenditures made for the demonstrative aids used at trial and the professional technical assistance employed by Delta for help in the courtroom are likewise not recoverable as ordinary costs. See, e.g., 20 C.J.S. Costs § 115 (2007). And with regard to the court reporter fee, the record indicates that it is for the deposition taken of Hubbard’s wife, Denise, prior to trial. Rule 30(h) of the Mississippi Rules of Civil Procedure says: “No part of the expenses of taking depositions, other than serving of subpoenas, shall be adjudged, assessed or taxed as court costs.” Accordingly, this too is not a recoverable cost item.
¶ 79. We point out that Delta relied exclusively on federal case law interpreting the federal counterpart to Rule 68 in support of its argument as to what items may be taxed as costs. As previously indicated, we find the interpretations of those authorities persuasive with respect to the operation of Rule 68. There is no distinction between the mechanics of our Rule 68 and Federal Rule 68; they are the same, Shannon, 834 So.2d at 49 (¶ 39), and the federal courts are well versed with this aspect of the rule.
¶ 80. But such cases offer little assistance for determining the specific items that may be taxed as costs under state law. See, e.g., Carper, 697 S.E.2d at 95 n. 4 (same finding). The federal courts “necessarily base their analysis on … § 1920,” a statute that is not applicable to Mississippi’s law of costs.12 See, e.g., id. (stating that § 1920 is inapplicable to West Virginia’s law of costs).
¶ 81. Even though the Mississippi Supreme Court referenced § 1920 in Gates, it did so merely to illustrate that the federal courts, not unlike Mississippi courts, award costs only permitted by statute. See Gates, 467 So.2d at 218. In no way did the Gates court apply § 1920 to the case.
¶ 82. In Missi, the Indiana case mentioned above, cost items similar to those authorized by § 1920 were awarded by an Indiana trial court apparently because Indiana Trial Rule 68 had been invoked, as the following portion from the Missi court’s opinion illustrates:
In support of their argument that the award of litigation expenses should be affirmed, [the appellees] cite Thomas, wherein the [federal] district court held that the defendant whose offer of judgment had been rejected could recover for photocopy expenses, subpoena and mileage fees, and deposition fees. 150 F.R.D. at 150. The Thomas court relied in part upon Justice Brennan’s dissent in Marek, in which he opined that “ ‘costs’ as that term is used in the Federal Rules should be interpreted uniformly in accordance with the definition of costs set forth in § 1920.” 150 F.R.D. at 148 (citing Marek, 473 U.S. at 18, 105 S.Ct. 3012, … (Brennan, J., dissenting)). [Section] 1920 enumerates among recoverable costs the “[f]ees and disbursements for printing and witnesses,” and “[f]ees for exemplification and copies of papers necessarily obtained for use in the case.”
Missi, 731 N.E.2d. at 1040.
¶ 83. In response, the Missi court explained that Indiana courts “may award costs only when they are expressly authorized by statute.” Id. (quoting Board of County Comm’rs of Vanderburgh County v. Farris, 168 Ind.App. 309, 342 N.E.2d 642, 644 (1976)). The Missi court reiterated that Indiana courts “have no inherent power to assess or award costs to a prevailing party” and stated that “[t]he right to recover costs is a matter left entirely to [Indiana’s] legislature.” Id. (citing Linder v. Ticor Title Ins. Co. of Cal., 647 N.E.2d 37, 40 (Ind.Ct.App.1995)). The Missi court then held that the costs awarded by the trial court were not the sort of costs contemplated by Indiana Trial Rule 54(D) and reversed the trial court’s award of such items. Id.
¶ 84. A similar type argument was made to the Court of Appeals of Tennessee in the case of Person v. Fletcher, 582 S.W.2d 765, 766 (Tenn.Ct.App.1979), where the court was “urged to declare certain items as costs under Rule 68 [of the Tennessee Rules of Civil Procedure,] [because] to hold otherwise Rule 68 will provide no deterrent to the unreasonable prosecution of nuisance value cases.”
¶ 85. Rejecting it, the Person court said:
While Rule 68, T.R.C.P., [i]s patterned after Federal Rule 68, this state has not enacted a law comparable to the federal law found at … § 1920, which expressly empowers the judge or clerk of any court of the United States to tax certain enumerated items as cost. This federal statute is the controlling distinction between Rule 68, T.R.C.P., and the federal rule insofar as what may be included as items of costs.
What constitutes costs is determined from legislative enactment on the subject and this principle is expressed in American Jurisprudence, vol. 20, Costs, [§ ] 52:
Inasmuch as the recovery of costs is dependent on statutory provision, a party who has been adjudged to be entitled to recover or tax costs may include in his bill or memorandum only such items of expense as are taxable by virtue of legislative enactment.
The Supreme Court in the case of [Louisville & N.] Railroad [Co.] v. Boswell, 104 Tenn. 529, 58 S.W. 117 (1900), overruling an effort to include a fee as costs not authorized by statute and quoting its earlier case of Mooneys v. [State], 10 Tenn. 578, [ (1831),] tersely stated: “costs are created by statute; unless there be some law to authorize it, the Court cannot Ex officio give costs against any one.” At common law, costs were not recoverable Eo nomine, 20 C.J.S. Costs [§ ] 2. In the absence of statute expressly designating the claimed items as costs, we hold the costs referred to in Rule 68, T.R.C.P., are those costs authorized by statute as assessed by the trial court in this case.
Id. at 766–67. (emphasis added).
¶ 86. And in Carper, it was argued “that limiting the types of ‘costs’ recoverable under Rule 68(c) to ‘court costs’ undermines the purpose of the rule, because such limitation reduces the economic risk to a plaintiff who refuses an offer of judgment, thereby diminishing the incentive to agree to such offers.” Carper, 697 S.E.2d at 95. The Carper court replied:
While the [a]ppellees’ policy argument may be compelling, this [c]ourt has no authority to sanction the taxation of costs which are not permitted by statute or court rule. Indeed, as previously noted, prohibition will lie against a circuit court that awards costs not specifically allowed by statute or court rule. Consequently, any expansion of the “costs” that may be assessed against a plaintiff pursuant to Rule 68(c) must be left to the [l]egislature or be expanded by this [c]ourt through a new judicial rule.
¶ 87. We find the holdings in Martin, Ex parte Ashford, Gates, and Whitehead are indicative that the Mississippi Supreme Court’s view on the matter is in line with that held in Missi, Person, and Carper.
¶ 88. Also, we point out that one of the cases relied on by Delta in support of its argument, arguing that we should affirm the trial court’s cost award, involved an action under Title VII of the Civil Rights Act of 1964, which therein contains a provision for attorney’s fees, authorizing courts to award reasonable fees and expenses. See, generally, 42 U.S.C. § 2000e–5(k) (2006). Certainly, when a statute allowing for litigation expenses applies to the case, the types of “costs” awarded will differ significantly compared to a case where a trial court (whether it be a state or federal court) is relegated to the usual statutory costs. Such would have been the circumstances had this case involved, for example, a trespass-to-timber action under section 95–5–10(3) (see n. 10).
¶ 89. Survey of the case law dealing with Rule 68, in general, reveals that litigants often rely on incommensurable cases for support of cost items they contend should be awarded simply because Rule 68 was invoked. See, e.g., Crossman v. Marcoccio, 806 F.2d 329, 331 (1st Cir.1986) (describing Federal Rule 68 as “the most enigmatic of the Federal Rules of Civil Procedure,” partly for this reason). Respectfully, the bench and the bar should keep this in mind.
¶ 90. In conclusion, having found the aforementioned cost items awarded by the trial court to Delta in this case unauthorized by Mississippi law, we must reverse on this issue and remand this case to the trial court for further proceedings consistent with this opinion.
August 27, 2019 § Leave a comment
What, exactly, are costs within the meaning of the MRCP?
Costs, security for costs, and awards of costs are mentioned in MRCP 3, 4(c)(1), 4(c)(3)(C), 30(h), 41(a)(1), 41(e), 43(f), 53(a), 54, 56(h), 65(c), and 68.
R 54(e) provides that costs are awarded to the prevailing party. The Advisory Committee Note to R 54 includes this helpful guidance:
Three related concepts should be distinguished in considering Rule 54(d): These are costs, fees, and expenses. Costs refer to those charges that one party has incurred and is permitted to have reimbursed by his opponent as part of the judgment in the action. Although costs has an everyday meaning synonymous with expenses, taxable costs under Rule 54(d) is more limited and represents those official expenses, such as court fees, that a court will assess against a litigant. Costs almost always amount to less than a successful litigant’s total expenses in connection with a law suit and their recovery is nearly always awarded to the successful party.
Fees are those amounts paid to the court or one of its officers for particular charges that generally are delineated by statute. Most commonly these include such items as filing fees, clerk’s and sheriff’s charges, and witnesses’ fees. In most instances an award of costs will include reimbursement for the fees paid by the party in whose favor the cost award is made.
Expenses include all the expenditures actually made by a litigant in connection with the action. Both fees and costs are expenses but by no means constitute all of them. Absent a special statute or rule, or an exceptional exercise of judicial discretion, such items as attorney’s fees, travel expenditures, and investigatory expenses will not qualify either as statutory fees or reimbursable costs. These expenses must be borne by the litigants.
That is probably enough to get you through most situations. But if you need a more scholarly analysis with case law, I’ll post one here for you tomorrow.
August 13, 2019 § 3 Comments
A motion to alter or amend a judgment per MRCP 59(e) must be filed within ten days of the date when the judgment is entered or it is untimely.
The COA’s decision in Barbaro v. Smith, about which we posted yesterday, includes this reminder:
¶62. Rule 59(e) of the Mississippi Rules of Civil Procedure states that “[a] motion to alter or amend the judgment shall be filed not later than ten days after entry of the judgment.” M.R.C.P. 59(e) (emphasis added). “This ten-day requirement is absolute, and the court is not permitted to extend this time period.” Wilburn v. Wilburn, 991 So. 2d 1185, 1190-91 (¶11) (Miss. 2008) (quotation marks omitted). A motion is “filed” when it is received by the clerk—not when it is placed in the mail. Massey v. Oasis Health & Rehab of Yazoo City LLC, 269 So. 3d 1242, 1250 (¶16) (Miss. Ct. App. 2018). Barbaro’s motion to alter or amend the judgment was filed twenty-two days after the judgment was entered. Therefore,
the chancellor correctly held that it was untimely.
Two crucially important points: (1) the judge cannot extend the time to file; and (2) the motion is not filed until it is actually received by the clerk.
Oh, and keep in mind that if you file a R59 motion later than 10 days after entry of the judgment, it will be treated as a R60 motion, which does not have the effect of tolling the time to appeal.