Maxims: The Legal Chance to be Heard
October 22, 2013 § 1 Comment
“No one should be condemned without a legal chance to be heard.”
This concept is so fundamental to our notions of due process that it almost goes without saying. Judge griffith expounded on it this way:
This maxim is so clearly founded in natural justice that even savages would understand it, and every decent modern government observes it as an indispensible principle of constitutional right. A decree rendered in its absence is utterly void, as it ought to be. A decree in personam cannot be rendered without a personal appearance or without personal notice sereved within the territorial limits of the state, and a decree bearing upon personal property situated within the state but owned by a non-resident is not valid unless by some reasonable method to be prescribed by law the defendant is given notice by constructive process, such as notice by publication. Griffith, § 48, p. 50.
The MRCP modified process to allow personal service outside the boundaries of the state.
The principle is found consistently in our jurisprudence. If there is no personal jurisdiction, if there is no notice, the court may not act.
The one exception is MRCP 65 pertaining to temporary restraining orders (TRO) without notice. These are not favored, however, unless the circumstances are of such an emergency and exigent nature that relief must be granted immediately. Even in such cases, however, the TRO may be dissolved upon motion of the enjoined party on only two days’ notice, and in no event may extend by the initial order for more than ten days.
A Rules Gap that Can be a Fool’s Trap
October 16, 2013 § 4 Comments
MRCP 32 (a)(3)(E) allows for the use of a deposition at trial of a medical doctor “for any purpose.” R32(a) says that the deposition may be used ” … so far as admissible under rules of evidence applied as though the witness were then present and testifying… ”
In practice, that language has been applied to excuse medical doctors from personal appearance at trial, allowing their testimony to be presented by video deposition, or by reading into the record in jury trials, or by introduction of the transcribed deposition in bench trials. The deposition of a medical doctor, then, per this rule, has been deemed admissible in evidence as though the doctor were present and testifying, simply because the witness is a medical doctor.
When this amendment to rule 32 was adopted. It was seen as a friendly gesture to the medical profession, a way to encourage testimony of doctors without unduly interfering with their schedules. All doctor testimony henceforth would be via deposition. It was a no-cost win-win.
But, as Lee Corso would say, not so fast my friend.
The deposition of the medical doctor is unquestionably a hearsay statement, so how does MRCP 32(a) mesh with MRE 804(a), which creates the hearsay exception for persons deemed unavailable to testify? If you will read MRE 804(a), it is clear that the mere status of medical-doctorhood does not automatically fit one into any of the six definitions of unavailability set out in subsection (a). Nor does that status automatically fit into any of the hearsay exceptions in subsection (b). It may be that the doctor’s statement could be qualified as an exception under subsection (b)(5), but that would require a finding by the court, after prior notice by the offering party to counsel opposite.
The answer is that the MRE controls. That’s what MRE 1003 states: “All evidentiary rules, whether provided by statute, court decision or court rule, which are inconsistent with the Mississippi Rules of Evidence are hereby repealed.”
This gap between the two rules caught a party unprepared in the case of Parmenter v. J & B Enterprises, Inc., 99 So.3d 207, 219 (Miss. App. 2012), in which the trial judge disallowed the expert testimony via deposition per MRCP 32(a) where there was no proof of unavaiability as defined in MRE 804. The appellant unsuccessfully argued that MRCP 32(a) allowed the introduction. The COA held, to the contrary, that the MRE provision controlled.
Don’t assume that, just because you have gotten that doctor’s deposition, it will automatically be admissible in lieu of the doctor’s personal testimony. To do that, you will still have to prove the doctor’s unavailability as defined in MRE 804. That may be something you can achieve via requests for admission, or by stipulation, or by making a record.
Oh, and don’t overlook (1) that you have to plant somewhere in the record enough proof to satisfy the judge of the doctor’s qualifications to testify as an expert in the first place, and (2) that MRCP 32(a) applies only to medical doctors, not to PhD clinical psychologists. Those were two stumbling blocks for the plaintiff in Parmenter.
A Law Library in Your Pocket
October 10, 2013 § 1 Comment
MC Law scores again in the “Useful Things for the Practice of Law Department.” This time, it’s an almost-app you can add to your home screen on your mobile phone, tablet, or even your laptop.
I say “almost-app” because it’s really a link to a web site you access via your mobile, but the text is maximized for mobile use.
The link is http://law.mc.edu/mlr/. Enter it in your browser and follow the instructions to add an app-like link to your home screen.
Here’s what you will find in this mini-library:
- MRCP
- MRE
- MRAP
- Rules of Professional Conduct
- MCA 1972
- MSSC Opinions
- MCA Opinions
- All Court Rules
- Constitutions of 1890, 1868, 1832, and 1817.
- MC Law Library Online Catalog
- Judicial Data Project
- Legislative History Project
It also includes the federal rules and even has access to PACER.
MC Law continues to lead the way in innovations that are not only useful and helpful for pratitioners, but also in a readily-accessible form. Almost everyone carries a cell phone around, even to court. When the judge says, “If you would read Rule 81, you would know what I am talking about …” you can whip out your cell phone, tap a couple of screens, and scroll to the very subsection in question.
And when you’re sitting in the back of the courtroom for a couple of hours waiting to present your case, it’s comforting to know that you can spend that time reading (or re-reading) the Constitution of 1817.
We’ve talked here before about MC’s ingenious Judicial Data Project. It’s a treasure trove of appellate information, including a database of briefs, videos of oral arguments, decisions, and more.
The Legislative History Project is a video archive of legislative debate over individual bills and select resolutions as they actually took place on the floor of the Mississippi House of Representatives and Mississippi Senate. Searchable by bill number, bill author, and bill description. The site says, “Provided with each video clip is a summary of legislative action taken that day. The project also links to the Mississippi Legislature Web page where more information may be obtained regarding the individual bills and their principal author.”
Maxims: In Personam
September 16, 2013 § Leave a comment
“Equity acts upon the person, or, equity acts in personam.”
The common law courts had no process to enforce the specific performance of a contract. The only remedy available was to award damages for the breach, and to issue execution and possessory writs. As the jurisprudence of equity developed, the chancellors sought not only to improve upon the means available in the law courts, but also to avoid the use of common-law writs that might create a conflict with those courts. The result was that the party in chancery was ordered personally to comply with the court’s order, or, failing to do so, to be subjected to jail or other sanctions for disobedience.
Much of chancery court’s power and authority today rests on this important keystone: that it may compel a person or entity to do any act or thing necessary and incidental to effect relief ordered by the court.
Judge Griffith says it this way:
Although in this state, modern statutes provide that a decree in chancery shall have all the force and effect of a judgment at law, and that when a conveyance, release, acquittance or other writing, it shall have all the force and effect as if the writing had been executed in accordance therewith, and although execution and all other process or similar process as known to law may now be issued out of chancery, nevertheless the decrees in chancery are still drawn largely in the form of orders in personam, and in addition to the statutory methods of enforcement, decrees in chancery are today as fully enforceable by personally compelling the party as they ever were, — except that now there may be no improsonment for debt. Griffith, § 37, pp. 39-40.
In the pre-rules days, all procedural rules and proceedings were statutory. The MRCP supplanted that system. Judge Griffith’s references to statute, of course, are subject today to the provisions of the rules.
It seems elementary to point out that the chancery courts act in personam, but this concept was a profound development in the law, and, as I said before, is a keystone of chancery practice.
MRCP 70 extends the reach of the in personam principle. It allows the court to enforce its in personam orders in several ways that were unknown to pre-rules practice, except through writs of assistance, seizure, and possession. R70(a) provides that, when a party fails to execute a conveyance or do some other act ordered by the court, the court may appoint some other person to do it, at the expense of the dafaulting party, and the act when so done is as effective and legally binding as if done by the person originally ordered to do it. R70(b) allows the court to divest title and vest it in another, rather than having to wait for a party to execute title. R70(c) permits the sheriff with a certified copy of an order for delivery of possession to seize property and deliver it to the person entitled to its possession, without further process of the court. R70(d) makes it clear that all of R70’s remedies are in addition to the court’s contempt power.
Maxims: Complete Justice
September 10, 2013 § 1 Comment
The second essential maxim is that “Equity delights to do complete justice and not by halves.”
In pre-rules practice, this was regarded as an important procedural concept that encouraged practitioners to join as many claims as existed in the umbrella of a single suit. As Judge Griffith explained:
The maxim has a complete operation in this state. It is our settled policy that if equity have jurisdiction of the cause of action it should assume full jurisdiction and settle all disputed questions in one and the same suit as far as within the pleadings, and the court will allow and may even suggest such amendments to the pleadings as will permit full adjudication. There not only may, but generally must, be included in the one suit every clearly evident feature of the controversy and there must be made as parties all those substantially interested, so that when the matter is thus settled there will be no doors left open out of which it is probable that furher suits or further contention will spring. In short, equity will not permit litigation by fragments when it can be avoided by bringing the whole cognate matter into one suit. Griffith, § 37, p. 39.
From a procedural standpoint, all of the principles enunciated by Judge Griffith are incorporated into our MRCP. R15 allows, and even encourages, liberal amendments to make sure that there are no pleading obstacles to complete relief. R8(e)(2) and R18 allow a party to assert as many claims or defenses that he has, whether consistent or not. R14 allows joinder of third parties. R19 and 20 provide for joinder of any and all persons needed for a just adjudication. R21 rules out misjoinder as a ground for dismissal, and allows for severance of claims for adjudication. R24 makes provision for intervention. R25 sets out the rules for substitution of parties.
From a philosophical standpoint, however, this maxim has had much broader impact. It means that, once the court has taken jurisdiction, it should do what is necessary to effect complete justice, and not to stop because of some perceived pleading impediments or non-joinder. The chancellor should give the parties an opportunity to amend and/or bring in parties necessary to afford full relief, and then proceed. The spirit of the maxim is that a chancery proceeding is not a Gotcha! game in which the parties try to catch each other with their pants down, so to speak, but rather is a search for what is right, fair, and equitable, leading to application of a remedy that will completely achieve that right, fair, and equitable result.
The Maxims of Equity
September 5, 2013 § 10 Comments
I made the statement several weeks ago that:
Yes, the maxims of equity. Have you heard of them? If you graduated from law school before 1982, you probably spent some time in the law library committing them and some of their key cases to memory. Since then, I’m not so sure. When the MRCP went into effect, it seems that there was a de-emphasis on teaching the idea of equity in chancery. If the procedures were in most matters identical to circuit practice, why was all that folderol about equity necessary?
Today, in an age when even evidence has been eliminated as a required subject in law school, I shudder to think that there might no longer be any formal effort to educate law students in the philosophical underpinnings of chancery and, indeed, the entire system of equity that is administered in our chancery courts.
The Mississippi Constitution, § 159, specifically confers on chancery courts full jurisdiction in “All matters in equity … ” as well as certain other enumerated areas.
Equity is distinguished from the law in civil cases in that the law may grant a money judgment (and by statute may even enter an injunction), but equity courts act on the person, imposing duties and obligations, creating equitable remedies to carry out the court’s orders to set right what is found to be wrong. The court of equity is a court of conscience. As the great Judge Griffith stated,
“It is more than a trite phrase that the court of equity is a court of conscience; and it is immaterial what rights a party could assert in a court of law, — a court of equity will limit him to those rights of which he could conscientiously avail himself. It has been tersely expressed that nothing but conscience, good faith, and reasonable diligence can call forth the activities of a court of equity, and when these requisites are wanting, the court is passive and does nothing.” Griffith, Mississippi Chancery Practice, § 32, p. 35.
The foundation and spirit of equity have been distilled into aphorisms known as the Maxims of Equity. Every equitable proceeding touches on or embodies them in one way or another, whether expressly or impliedly. They inform not only the form, but also the substance, of all equity matters. Traditionally there were 12 great maxims and 12 so-called lesser maxims. Judge Griffith combined them into 14 essential statements of equity principles.
The 14 essential maxims are:
- Equity will not suffer a wrong without a remedy.
- Equity delights to do complete justice and not by halves.
- Equity acts upon the person.
- Equity acts specifically, and not by way of compensation.
- Equity looks to the intent, and will regard substance rather than form.
- Equity follows the law.
- Equity aids the vigilant and not those who slumber on their rights.
- He who comes into equity must come with clean hands.
- He who seeks equity must do equity.
- To protect and enforce property rights is the object of equity.
- When parties are disabled equity will act for them.
- Courts of equity will not tolerate interference with their orders nor with their officers in the enforcement thereof.
- No person bound to act for another can act for himself.
- No person should be condemned without a legal chance to be heard.
The last two are equally applicable in law and equity courts.
If you’re going to spend time in chancery, you have got to understand how these maxims act as the very structure of equity upon which the chancellor bases his or her rulings.
This begins a series of posts that will focus on the Maxims of Equity. I will quote liberally in each from Judge Griffith’s 1950 monumental work on chancery practice. Although his tome is of only academic interest insofar as it relates to the pre-MRCP practice in chancery courts, Judge Griffith’s masterful grasp of the law of equity and its philosophy is unmatched. His book, now out of print, was once considered the authoritative work on Mississippi chancery practice, and was even employed as the law school textbook on the subject in the pre-MRCP era.
My goal is to acquaint a new generation of Mississippi solicitors (the traditional term for practitioners in Mississippi chancery courts) with these concepts, and to try to reintroduce them into the 21st century discussion of chancery court practice for the rest of us.
Settling for Something
September 3, 2013 § Leave a comment
We’ve discussed here the lawyer’s power to bind the client, as in a settlement announcement where the agreement was to dismiss the lawsuit with prejudice upon payment of a settlement sum. The specific case we focused on was Williams v. Homecoming Financial, a COA case handed down July 23, 2013.
In Williams, the disappointed plaintiffs felt that there was not enough money on the table, and sued to get out of the settlement agreement. The attorney countered that the terms of the settlement had been thoroughly discussed with and agreed to by the Williamses before the settlement was announced. They were unsuccessful in their quest to escape the agreement.
How and what you communicate with the client about settlement is critical. That’s because Mississipi Rule of Professional Conduct 1.2 specifies that there is only one decision in chancery court where the client retains absolute decisional autonomy, and that is whether to accept an offer of settlement. That means that your client calls the shots when it comes to how the case will settle.
An extreme case where the lawyer ran right over, around and through that autonomy is Culpepper v. Miss. Bar, 588 So.2d 413 (Miss. 1991), in which the attorney: (a) did not communicate the terms to the client before announcing it in open court; (b) failed to advise the court that his client thought the case was being settled on different terms; (c) did not disclose to the court that the settlement agreement was different from one his client had signed; (d) represented to the court that the parties had agreed to the terms of the agreed judgment, knowing that was not true.
Three clear duties arise from R 1.2:
- The duty to communicate any offer or demand to the client, no matter how unreasonable;
- The duty to confer with and avise the client about the pros and cons of settlement, and the strengths and weaknesses of both sides’ cases; and
- The duty to zeaalously represent the client to accomplish the client’s settlement goals, unless the lawyer feels that they are so unreasonable, frivolous, or otherwise unmeritorious that withdrawal is warranted.
The autonomy of the client can be varied by contract, but not eliminated. For instance, the lawyer-client contract can provide that the lawyer may settle the case within certain parameters. That would be ethical. But an agreement that vests in the lawyer sole, final decision-making authority would be unprofessional, because only the client can make that final decision. See, Jackson and Campbell, Professional Responsibility for Mississippi Lawyers, 2010, § 8.4 – 5, pp. 8-6 – 8-8.
The only exception to the rule is in MRPC 1.14, which addresses how to deal with impaired clients.
It’s true that a lawyer should not let the client dictate the strategy and tactics of representation. But the end of the litigation is always within the client’s discretion. You have the power to bind your client, but if you invade the client’s province to settle, you may face some unpleasant consequences.
Tailoring Your Proof to Fit Your Case
August 22, 2013 § 2 Comments
Yesterday I visited the COA’s decision in Pelton v. Pelton, which the COA reversed because the chancellor did not make findings on the Ferguson and Armstrong factors.
All most of us know about Pelton is what we read in the opinion.
But before you dismiss this as the fault of the chancellor, consider the possibility that the record may not have included what the judge needed to adjudicate this case. I’m not saying that’s what happened here. I’m merely pointing out that sometimes the judge has to make do with what he or she has in the record. And sometimes what is in the record is not enough to cover all of the factors.
For example: in an equitable distribution case, the judge must first determine which assets are marital, and then go through the Ferguson factors to determine whether and how they should be divided. I have heard cases where there is next to no evidence as to when or how the assets were acquired. I have heard cases with scant evidence upon which to make Ferguson findings.
In a child custody case, the judge can not make Albright findings on evidence that is not in the record. So if you want the judge to consider your client as the parent with continuity of care, then you will have to put on proof to that effect. Another chancellor related his experience in a case a couple of years ago where the custodial parent defending a custody modification put on no proof as to Albright factors at all. What exactly is the chancellor to do in that situation?
MRE 614 does allow the judge to call witnesses and intrrogate them, which would seem to be a viable option where the best interest of a child is involved. But that should be a last resort in a contested case, and, in my experience, is rare in chancery court.
The bottom line is that you have to make your record. The chancellor can not rule on evidence not in the record. The appellate courts can not find that the trial judge’s ruling is supported by substantial evidence in the record when it is not there.
Venue in Divorce and the Accompanying Child Custody Action
August 15, 2013 § Leave a comment
Venue for fault-based divorces where both parties are residents of Mississippi is in the county where the defendant resides, or in the county where the parties lived when they separated, if the plaintiff still lives there.
Venue for irreconcilable differences divorces where both parties are residents is in the county where either party resides.
Venue for child custody actions brought under MCA 93-11-65 is in the county where the child actually resides, or in the county of residence of the custodial parent, or in the county of residence of the defendant.
The vast majority of divorce complaints include (1) claim of at least one fault-based ground for divorce, (2) claim of irreconcilable differences, and (3) claim for child custody, often pled under MCA 93-11-65. Where is venue in a case such as that? And how is venue affected if one or more of the claims is dismissed?
Those were the questions before the court in Slaughter v. Slaughter, 869 So.2d 386 (Miss. 2004).
Monica and Mitchell Slaughter married and lived together in Chickasaw County. Monica separated and moved to Coahoma County, where she filed a Complaint for Divorce alleging habitual cruel and inhuman treatment, and, the alternative, irreconcilable differences. Apparently, she also sought child custody per MCA 93-11-65. Mitchell filed a motion to dismiss on the ground that the Coahoma County Chancery Court lacked jurisdiction. He also filed his own actions for divorce and custody in Chickasaw County.
The chancellor granted the motion to dismiss as to the fault-ground. He ruled, however, that the Coahoma County court did have jurisdiction over the irreconcilable differences divorce, and over the issue of custody pursuant to MCA 93-11-65(a).
Mitchell contested the irreconcilable differences divorce and asked the court to transfer the case to Chickasaw County, which the chancellor refused.
Mitchell sought an interlocutory appeal, which the MSSC granted.
In a unanimous decision, with Diaz not participating, the court, by Justice Easley, ruled:
- Since Coahoma County was not the proper venue for the fault-ground divorce, the chancellor erred in retaining jurisdiction over the irreconcilable differences divorce only. The chancellor should have dismissed the case in toto, rather than treating it piecemeal (¶29). The irreconcilable differences venue statute may not be used to circumvent the clear requirements for venue in fault-based cases (¶ 30).
- “We find that a proper reading of all three statutes, §§ 93-5-11, 93-5-23 and 93-11-65, does not provide for a custody matter to proceed under § 93-11-65 when a divorce is pending.” (¶33).
- And finally since the chancellor lacked any jurisdiction at all, he could not transfer the case. (¶30).
That’s the pronouncement of the court, and we are bound by it. But there are a couple of points:
I don’t really have a quarrel with the outcome of the case. Both the irreconcilable differences statute and MCA 93-11-65 seem to be pretty slender reeds to support proper jurisdiction in a fault-based divorce. But what, exactly does MRCP 82(c) mean? You can read it for yourself and lay awake tonight pondering it. The Slaughter opinion did not address it.
As to number 3, the obvious question is what in the world does MRCP 82(d) mean when it says that “When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court … shall transfer the action to the court in which it might properly have been filed …”? The legislature addressed this conundrum in 2005, when it amended MCA 93-5-11 to provide that “Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.” That would seem to cover that. Ironically, Justice Easley penned the decision in Heritage Realty, Inc. v. Estate of Boles, 947 So.2d 238 (Miss. 2006), reh. den. February 8, 2007, which ruled that an estate opened in the wrong county must be dismissed, and may not be transferred. Again, what in the world … etc.
I guess what you need to bear in mind about this case is in contested divorces that the jurisdictional sun around which all of the other planetary issues will revolve, including custody, support, equitable distribution, etc., will be the fault-based divorce. Venue in a divorce is jurisdictional. That means that it will be heard in the county where the defendant resides, or in the county where the parties lived when they separated, if the plaintiff continues to reside there.
Rights of a Widow, Part II: Renunciation of the Will
August 13, 2013 § Leave a comment
In Part I, we discussed the right of the widow (which also embraces widowers) to one-year’s support from the estate when the spouse has died. In this post we deal with the right of the widow to renounce a will when it does not make adequate provision for her. The right is codified in MCA 91-5-25.
As we saw in Part I, Joe Howard Estes and Sarah (Young) Estes had been married only nine months when Joe Howard died. Sarah had moved out of Joe Howard’s home and back to her own home shortly after he had suffered from some serious health issues, including amputation of his leg and arterial surgery. She filed for divorce, which was pending at the time of Joe Howard’s death.
Joe Howard’s will, which was admitted to probate, made no provision for Sarah at all, so she filed notice of renunciation with the court, which eventually awarded her a child’s share (1/5) of the estate, less $12,000 that she had been granted as a widow’s allowance.
The co-executors appealed, and the COA reversed in Estate of Estes: Estes v. Estes, decided December 11, 2012. Judge Maxwell, writing for the majority, summed it up:
¶17. Mississippi Code Annotated section 91-5-25 (Rev. 2004) allows a widow whose deceased husband “does not make satisfactory provision” for her in his will to renounce the unsatisfactory provision and elect to take the a child’s share of the estate. See also Bolton v. Barnett, 131 Miss. 802, 827, 95 So. 721, 726 (1923) (holding second husband not provided for in his deceased wife’s will was entitled to inherit a child’s share of his wife’s real property). Under section 91-5-27, when the husband’s will makes no provision at all for his widow, no renunciation is required—it will be assumed that the widow has elected to take her share of the estate. Miss. Code Ann. § 91-5-27. Thus, the chancellor was correct in one sense that the right to inherit under 91-5-27 is “automatic” because, in contrast to the right under section 91-5-25, no act of renunciation or election of a child’s share is required.
¶18. But the chancellor was incorrect that this automatic right to inherit, as if the deceased husband died without a will, arises in every situation without exception. The record shows the chancellor believed his hands were tied regarding Young’s renunciation of Estes’s will and right to inherit one-fifth of the estate. Although acknowledging the evidence supporting Young’s abandonment of the marriage, the chancellor nonetheless awarded her a child’s portion of the estate because he was not aware “of any case law at all that would reflect . . . that [Young] somehow would not be entitled to a child’s portion[.]”
¶19. But there is Mississippi precedent of this nature. Our supreme court has previously acknowledged the operation of estoppel when a spouse trying to take a child’s share of the estate has deserted or abandoned the marriage. In re Marshall’s Will, 243 Miss. at 478, 138 So. 2d at 484 [(1962)]; Walker v. Matthews, 191 Miss. 489, 511-12, 3 So. 2d 820, 826 (1941); Williams v. Johnston, 148 Miss. 634, 636-37, 114 So. 733, 733-34 (1927). In Tillman v. Williams, 403 So. 2d 880, 881 (Miss. 1981), the supreme court clarified what was required for estoppel: “Our Legislature has not seen fit to enact any legislation on this abandonment question. It is, therefore, obvious that the statute has to be strictly construed unless there is a clear desertion and abandonment that sets up the estoppel.”
¶20. While he acknowledged evidence showing Young’s desertion or abandonment of the marriage, the chancellor did not make a finding of clear desertion or abandonment. This was because he mistakenly believed such an estoppel-type finding would have no legal effect on Young’s right to inherit. Since the award of a child’s share of the estate was based on an erroneous application of the law, we reverse the award to Young of one-fifth of the estate and remand for a determination of whether Young’s action met the clear-abandonment standard of Tillman, thus estopping her from inheriting from the Estes’s estate. [Footnotes omitted]
So it is estoppel that will preclude a spouse who has abandoned or deserted the marriage from taking a child’s share. For the estoppel to come into effect the chancellor has to make a finding that “there is a clear desertion and abandonment.”
An interesting sidelight in this appeal is that the appellants did not specifically raise Sarah’s renunciation as an issue in the appeal. How, then, could the COA address it? The COA opinion said this about it at Footnote 5 to ¶16:
While the co-executors did not raise as a separate issue Young’s renunciation of the will, they raised the issue of Young’s abandonment of the marriage and its effect upon Young’s rights, as well as challenged the amount of the award of one-fifth of the estate. Thus, we find the question of the will’s renunciation and Young’s right to inherit a child’s share is before us. But even were it not, reversal based on the chancellor’s misapplication of the law would be warranted under plain-error review. “Plain-error review is properly utilized for ‘correcting obvious instances of injustice or misapplied law.’” Smith v. State, 986 So. 2d 290, 294 (¶10) (Miss. 2008) (quoting City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 256 (1981)); see also M.R.A.P. 28(a)(3) (permitting this court to “notice a plain error not identified or distinctly specified” in the appellants’ statement of issues).
A post that talks about some of the quirks of renunciation can be found at the link.
The Better Chancery Practice Blog 