WHEN IS A JUDGMENT ENTERED?
September 4, 2012 § Leave a comment
When is a judgment entered?
It’s an important question to ponder because some drop-dead deadlines start ticking away on entry of a judgment. MRCP 59 and 60 are two rules that have those kinds of provisions. MRAP 4(a) says that the notice of appeal to the MSSC must be filed ” … within 30 days after the date of entry of the judgment or ordered appealed from.” There are other rules with similar deadlines tied to entry of the judgment.
The last sentence of MRCP 58 says “A judgment shall be effective only when entered as provided in MRCP 79(a).”
MRCP 79(a) directs that the chancery clerk shall keep a General Docket in which shall be recorded all papers filed with the clerk, all process issued and returns, appearances, orders, judgments. Each entry is to show the date the entry is made.
In the case of Univ. of So. Miss. v. Gillis, 872 So.2d 60, 63 (Miss.App. 2003), the court held that a judgment becomes effective on the date it is entered on the docket.
When that judgment is entered can have a big effect on when your clock starts ticking for post-trial and appellate proceedings.
So here is my opinion about what are not final judgments:
- A document styled Final Judgment that has been file-stamped by the clerk, but is not entered on the docket.
- A document signed by the judge but not docketed.
- Even if the judge endorses the judgment “filed,” per MRCP 5(e), it is still not effective until entered on the docket by the clerk. MRCP 5(e) allows the judge to endorse a pleading or other document “filed,” but I believe that is only an effective date as to the filing of a pleading. It does not make a judgment effective because there is no entry on the General Docket. To me, the judge’s endorsement has no more effect than the clerk’s file stamp. It shows when it was received by the clerk, but does not render the judgment effective.
- If the judge renders an order or judgment from the bench and signs it, it is still not effective until docketed. It is the act of docketing that makes the judgment final and effective.
Of course, a decision or opinion is not the same thing as a judgment. There is case law that says that the court’s bench opinion does not have the finality of a judgment. Banks v. Banks, 511 So.2d 933, 935 (Miss. 1987); Hinson v. Hinson, 877 So.2d 547, 548 (Miss.App. 2004).
On a related point, in 2004, Rule 58 was amended to add the language that even if a final judgment is improperly titled, unless prejudice can be shown, it will be afforded the effect of a final judgment if its language clearly indicates it is so. The amendment effectively overrules a line of Mississippi Supreme Court cases that held that if a court order did not include the word “judgment,” it would not be treated as one even where no prejudice could be shown: Thompson v. City of Vicksburg, 813 So.2d 717 (Miss.2002); Mullen v. Green Tree Financial Corp., 730 So.2d 9 (Miss.1998); and Roberts v. Grafe Auto Co., Inc., 653 So.2d 250 (Miss.1994).
FIGHTING THE TIDE THAT WOULD SWEEP AWAY DECORUM
August 23, 2012 § 4 Comments
UCCR 1.01 says that “All proceedings in the Chancery Court … shall be conducted with due formality and in an orderly and dignified manner … The dignity and respect of the Court shall be preserved at all times.” The rule also bans ” … drinks, food, gum or smoking …” and “Bickering or wrangling … Applause or demonstration … and the use of profane or indecent language.”
Courtroom decorum is one of those things that varies widely from district to district, depending on the personality of the chancellor and his or her tolerance level for various forms of behavior.
In my district, I try to make sure that the formality of the courtroom is preserved, that all proceedings are conducted with the attention and gravity that they deserve so that litigants can see that we take their business seriously.
Despite our best efforts, though, philistinism encroaches even into our courtrooms. A few examples:
- The woman who dropped the “f-bomb” repeatedly in the course of a Clarke County hearing until I had her dragged off in handcuffs to do 30 days in jail. This was after she had assaulted another witness in the hall before court was convened, resulting in her having to sit through her trial in manacles between 2 burly deputies.
- The man in the same trial who flipped off the judge. That cost him 5 days in jail.
- The woman who appeared for a hearing in my courtroom in Meridian who wore a t-shirt that read “If you f-ing think I am f’ing going to do what you tell me, m’f”er, you are f’ing crazy.” I sent her home with instructions not to return to the courthouse property until she changed her attire. (By the way … all the f-words cited here were spelled out fully … you can fill in the spelling for yourself).
- Judge Mason had a hearing recently in which a matronly grandmother appeared wearing a t-shirt with a similar message, although not as graphic as mine.
- The man who enters the courtroom in the middle of a trial and calls out loudly to some witnesses, “Lawyer said y’all can come sit out in the hall; y’all come on out here with me.”
- The select few (all women) who came to court for child support enforcement cases wearing pajamas, and in one case pajamas with fluffy slippers. I don’t know about where you live, but it’s not that uncommon to see folks traipsing about in pajamas in this outpost on the edge of civilization, but I think wearing them to court crosses some kind of line.
Of course, the foregoing are merely a few more blatant examples. We have all seen and heard cell phones blaring, courtroom observers blurting out answers to questions or other “helpful” information, and other disruptions by laypeople who I guess don’t know any better. But the problem is not limited to laypeople.
Lawyers can be insensitive to the demands of decorum, too. Shortly after I took the bench, before I banned beverages from my courtroom altogether, I had to ask a lawyer to stop repeatedly shaking a large (2-liter?) convenience-store mug of ice while counsel opposite argued a motion. On another occasion I asked a lawyer to set aside a Dr. Pepper she swigged out of through her cross-examination of a witness.
Those are fairly obvious assaults on decorum. A less obvious example is when several lawyers highjack the hearing with banter and joviality to the extent that the sense of the proceeding is lost completely. Everyone enjoys an injection of a soupçon of humor into a tense trial every now and then, but I reviewed a record once for a trial conducted by another chancellor where the banter and kidding went on for 22 pages. That’s too much, and it sends the message to the parties that their business is trivial.
When I practiced, I always advised my clients to come to court dressed appropriately. And I instructed them in how to behave: no displays of dismay or approval; never interrupt a question or the judge speaking; no gum; no hats; no beverages; show respect for opposing counsel and the judge; and so on and so forth. I think most attorneys do the same, but it’s obvious that the thought has still not occurred to some.
I think preserving decorum in our courts is important. For one thing, it keeps emotion-charged proceedings from getting out of hand. For another, it conveys the message that what is transpiring is serious and taken seriously by the bench and bar. And it sets the courtroom experience apart from the living room where everyone speaks at the same time over the cacophony of the tv.
DISMISSAL FOR FAILURE TO PROSECUTE
August 6, 2012 § Leave a comment
MRCP 41(b) says, “For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.” Except for a few circumstances spelled out in the rule, such a dismissal operates as an adjudication on the merits, which means that it is with prejudice and res judicata.
In the COA case of Wing v. Wing, decided July 17, 2012, the court upheld a chancellor’s decision dismissing an action for failure to prosecute.
At the trial level, a conservatorship had been established for Loleta Wing in 2005, on petition of Todd and Tammy Kinney, grandchildren of Loleta. As part of their action, they sued Loleta’s son, Jimmy Wing, who was co-trustee and a co-beneficiary of a Wing family trust, for accounting, claiming he had abused his confidential relationship with Loleta. A couple of months later they dismissed the suit.
After Loleta died in November, 2007, Jimmy submitted an accounting to Todd and Tammy for the remaining trust assets. They responded with a suit in February, 2008, charging that Jimmy had used his confidential relationship with Loleta to persuade her to transfer assets to him, and that he improperly used the trust for his own benefit. They also sought an injunction, and after a hearing, the court, on February 28, 2008, froze all assets of the trust.
Jimmy filed responsive pleadings, and the parties entered into an agreed preliminary injunction. There ensued informal exchanges of information and an informal accounting by Jimmy, until December 21, 2010, when Jimmy filed a motion to dismiss for failure to prosecute. The chancellor dismissed the action pursuant to MRCP 41(b), and Todd and Tammy appealed.
Writing for the court, Judge Carlton said:
¶14. The record reflects substantial evidence of a clear record of inexcusable delay by Todd and Tammy. Before Jimmy filed his motion to dismiss on December 21, 2010, no action of record had taken place for almost an entire year. Todd and Tammy’s first action of record in practically a full year came only after Jimmy filed his motion to dismiss. The record supports the chancery court’s assessment that Todd and Tammy’s filing of the third motion to compel was clearly reactionary to Jimmy’s motion to dismiss, as they did not file the motion to compel until after Jimmy notified them of his intention to file the motion to dismiss. Precedent establishes that it is not what occurs after a plaintiff is made aware that his or her case may be dismissed for failure to prosecute that is dispositive of a motion to dismiss; instead, it is whether the case presents a clear record of delay due to a plaintiff’s failure to prosecute before the case actually is subject to dismissal. See M.R.C.P. 41(b). See Hillman v. Weatherly, 14 So. 3d 721, 728 (¶22) (Miss. 2009) (In affirming a circuit court’s dismissal of a complaint with prejudice for failure to prosecute, the supreme court held that the test for determining whether a plaintiff’s conduct is dilatory focuses “on the plaintiff’s conduct, not on the defendant’s efforts to prod a dilatory plaintiff into action.”). [Fn 7] Furthermore, we recognize that it was Todd and Tammy’s responsibility as the plaintiffs to prosecute their case, not the defendant’s nor the chancery court’s. See Cox, 976 So. 2d at 880 (¶50) (citing M.R.C.P. 41(b)). The chancery court, taking these considerations into account, found that Todd and Tammy’s dilatory conduct before Jimmy’s motion to dismiss was filed supported dismissal. We find that the record supports this conclusion. Thus, we conclude that the chancery court did not abuse its discretion in finding that a clear record of delay existed in this case.
Fn 7. See also Holder v. Orange Grove 7 Med. Specialties, P.A., 54 So. 3d 192, 198 (¶22) (Miss. 2010) (“We also may consider whether the plaintiffs’ activity was reactionary to the defendants’ motion to dismiss, or whether the activity was an effort to proceed in the litigation.”).
The court considered whether the trial judge had abused his discretion, and whether lesser sanctions would have been appropriate, and rejected both arguments. The COA’s analysis of the factors applicable in deciding whether there has been a failure to prosecute is something you should take the time to read.
Many family law cases seem to get onto a side track and fall into inaction. When they involve the best interest of children it’s not likely that the trial court would consider dismissal, but, as Wing points out, there are lesser sanctions for failure to move your case forward that can impact your client’s and even your pocketbook, as well as your ability to be effective in representing your client.
I use scheduling orders in all contested cases to move things along, and I impose an expiration date on temporary orders as an incentive not to dawdle with divorces. I suppose that “for failure of the plaintiff to comply with … any order of the court …” such as a scheduling order, a plaintiff could jeopardize his or her case by inaction.
Wing is a case you need to read, not only to understand your own duty to move your cases forward, but also to see how you can use MRCP 41(b) as a defensive weapon. Remember, that dismissal is with prejudice, by the express terms of the rule.
While we’re talking about dismissals, remember that if you receive a clerk’s notice of dismissal for inactivity in excess of a year, per MRCP 41(d), you need to take substantive action immediately, or else your case will be dismissed. A letter to the clerk or a “Notice to Keep Case on Active Docket” or the like just won’t cut it.
SETTING ASIDE A DEFAULT JUDGMENT
August 2, 2012 § Leave a comment
MRCP 55(c) allows the trial judge to set aside a default judgment “for good cause shown.” MRCP 60(b) authorizes the judge to set aside a default for “mistake, newly discovered evidence, fraud, void judgment, satisfaction, or other reasons the court finds to justify setting it aside.”
In the case of American States Insurance Co. v. Rogilio, 10 So.3d 463, 467 (Miss. 2009), the court established a three-prong test for trial courts to apply in determining whether to set aside a judgment:
(1) the nature and legitimacy of a defendant’s reasons for default (i.e., whether a defendant has good cause for default), (2) whether the defendant has a colorable defense to the merits of the claim, and (3) the nature and extent of prejudice that a plaintiff would suffer if default is set aside.
In the COA case of Olive v. Malouf, decided July 24, 2012, the trial judge had denied Olive’s motion to set aside the default judgment entered against him. Judge Roberts, writing for the COA, addressed each of the American Standard elements:
- The nature and legitimacy of a defendant’s reasons for default. In support of his motion, Olive argued only that he did not know where to file or send a copy of a responsive pleading, despite the fact that the name and address of opposing counsel was clearly stated on the complaint. Olive offered nothing else to explain his failure to file an answer. “¶11. The Mississippi Supreme Court has declined to set aside a default judgment where ‘[n]othing in the record suggests that [a defendant] was confused about the meaning and effect of the papers served upon him,’ and there was no indication that the defendant was ‘confused about the fact that he had been sued and should respond.’ Guar. Nat’l Ins. Co. v. Pittman, 501 So. 2d 377, 388 (Miss. 1987).”
- Whether the defendant has a colorable defense to the merits of the claim. Olive presented nothing by way of affidavit or other sworn form of evidence that he had any meritorious defense. A party does not meet the burden of MRCP 60(b) by relying on unsubstantiated allegations that a meritorious defense exists. American Cable Corp. v. Trilogy Communications, Inc., 754 So.2d 545, 554 (Miss.App. 2000). “Despite the general preference that litigants have a trial on the merits, a defendant must still ‘set forth[,] in affidavit form[,] the nature and substance of [his] defense.” Olive at ¶14, citing H & W Transfer & Cartage Service v. Griffin, 511 So.2d 895, 899 (Miss. 1987). This is the prong that the appellate courts have held to carry the most weight.
- The nature and extent of prejudice that a plaintiff would suffer if default is set aside. Olive presented nothing in support of this element, and the court found that Malouf would suffer prejuddice, especially considering that he had prevailed on the other two prongs.
To prevail on a Rule 55(c) or 60(b) argument, then, you will have to do some groundwork to support your claim. Mere allegations will not carry the day. You will have to file affidavits and address each prong of the American Standard test. If you fail to do so, you won’t prevail on appeal.
DEVIOUS SEARCH AND INQUIRY
July 26, 2012 § 3 Comments
It avails one naught to get a judgment when all the proper parties have not been given notice and an opportunity to defend.
In 2007, Lottie Woods brought an action for adverse possession of family property. She claimed in her complaint that she was the sole and only heir of her uncle Cornelius, and she published process for him, his unknown heirs, and any other person claiming an interest in the property.
It should have been a clue of problems to come when Corenelius, Jr. showed up at the appointed time and produced a birth certificate showing he was Cornelius’s son. But it all seemed to work out because Lottie and Jr. settled the dispute between them, dividing the property.
The only problem with all of the foregoing is that Lottie neglected to make it known that she had four other siblings who could claim an interest in the property. In other words, as Jr.’s appearance foretold, she could hardly be said to be the “sole and only” heir. Her brother Samson and the other siblings filed an objection and separate litigation to correct the matter.
The COA case of Byrd v. Woods, et al., decided June 19, 2012, is where this particular drama was played out. The case goes off on several other points of law, but the one that I want to focus on here is what happens when a party does not comply with MRCP 4’s requirement that there be diligent search and inquiry before process by publication. Here is what Judge Fair had to say about it, commencing at ¶14:
Mississippi Rule of Civil Procedure 4(c)(4) states that if a defendant cannot be found after diligent search and inquiry, shown by sworn complaint or filed affidavit, he may be made a party by publication. In the 2007 adverse possession action, Lottie filed an affidavit of diligent search and inquiry to obtain a publication summons. However, she must have known that her brother (and her other siblings) would have an interest in the “family land” she sought to adversely possess. They were both potential heirs of Cornelius and believed the property belonged to their family. Further, Lottie and Samson were not estranged, so it is unlikely she could not find him after diligent search and inquiry. But Lottie did not serve Samson personally, nor did she mention or serve her other three siblings.
“The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (¶16) (Miss. Ct. App. 2002). In Caldwell v. Caldwell, 533 So. 2d 413 (Miss. 1988), the supreme court stated “if at any stage of the proceedings it appears that . . . the affidavit was not made in good faith after diligent inquiry, under the facts of the particular case, the process should be quashed by the court . . . .” Id. at 416.
Therefore, Lottie did not obtain service of process on Samson by publication because her affidavit was not made in good faith after diligent inquiry. Neither he nor Lottie’s other siblings are bound by the 2007 judgment.
The lesson here is that when your client avers that he or she has made “diligent inquiry,” or, using the traditional phrase still used by many lawyers, “diligent search and inquiry,” you had better make darned sure that there was indeed a search and inquiry, and that it was in fact diligent. It’s a subject we’ve talked about here before.
Expect the chancellor to inquire behind the affidavit before granting any relief. I always do, and I do not accept a shrug of the shoulders or a couple of half-hearted attempts. In one case before me the woman claimed that the last she knew of her husband he was hanging out at a bar in Wayne County. I asked whether she had gone there to inquire about him. When she said “no,” I ordered her to go to the bar and ask the bartender and some of the habitués whether they knew his whereabouts. Wonder of wonders, she found him and he was personally served.
In the case of Lottie Woods, based solely on what I read in the COA opinion, I would have found that her claim in a pleading intended to influence a judge that she was the sole and only heir when she had living siblings in the area and Cornelius’s son was still alive to have been a fraud on the court. As it was, her “oversight” has cost all of these parties more than five years of wasted time in litigation, and they are returning to the starting line, probably poorer for the trial and appeal attorney fees, and surely not thrilled with the legal process. If only Lottie had sworn truthfully …
FIVE MISTAKES THAT FIDUCIARIES MAKE
July 18, 2012 § 7 Comments
- Failure to file an inventory. In every type of probate matter, it is required that an inventory be filed, usually within 90 days of appointment of the fiduciary. Often the will waives inventory, but the better attorneys I know always file an inventory, whether waived or not. Why? Because the inventory (a) sets a base line for later accountings, and (b) covers the lawyer’s rear from later claims by other heirs or beneficiaries that items are missing. Better to get those matters out up front where they can be dealt with than to let it hold up closing the estate. MCA 93-13-33 provides that an inventory must be filed within three months of appointment in a guardianship or conservatorship, and even requires an annual inventory. A guardian who fails to do so may be removed and be liable on his or her bond.
- Failure to publish notice to creditors. This requirement is mostly overlooked in guardianships and conservatorships. MCA 93-13-38(1) expressly states that “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, insofar as applicable and not otherwise provided, be observed and enforced in all guardianships.” And remember that the statutory affidavit of creditors must be filed before publication of the notice to creditors. MCA 91-7-145(2) says that “Upon filing such affidavit …” it shall be the duty of the fiduciary to publish. An affidavit filed after the publication is a nullity.
- Failure to get authority of the court for expenditures. Perhaps the most pervasive error of fiduciaries. MCA 93-13-38 requires the conservator to improve the estate of the ward, and to “apply so much of the income, profit or body thereof as may be necessary for the comfortable maintenance and support of the ward and his family, if he have any, after obtaining an order of the court fixing the amount” [emphasis added]. Every expenditure must be approved in advance. Emergency expenditures may be ratified, but only if properly proven to be for the ward’s benefit, and properly supported by vouchers. Caution: as set out below, self-dealing expenses may be neither approved or ratified.
- Failure to keep the ward’s estate separate and to avoid self-dealing. It often happens that a son or daughter is appointed to serve as conservator of momma’s or daddy’s estate. The child simply adds his or her name to the parent’s account and proceeds from there. This complicates matters because that joint account belongs 100% to each person whose name is on the account, and becomes the property of the survivor on death. That is certainly not an appropriate or even legal arrangement for a guardian or conservator. The fiduciary in every kind of probate matter needs to open a separate estate, guardiandhip or conservatorship bank account, and make all financial transactions through it and through it alone. MCA 91-7-253 prohibits the fiduciary from paying herself any money from the ward’s estate without prior court approval, and loans to the fiduciary and family members are prohibited also. The statute says that the court can not ratify or approve such payments. If the fiduciary has some expense that needs to be reimbursed, make sure the fiduciary has proper documentation and petition the court for authority. Don’t expect a cash payment or check made out to cash to be approved without abundant supporting documentation.
- Failure to get court permission to move the ward to another county. It’s prohibited to relocate the ward to a county other than the one in which the fiduciary was appointed, unless approved in advance by the court. MCA 93-13-61.
MRCP 54(b): GRAVEYARD OF APPEALS
June 11, 2012 § 3 Comments
2011-2012 is shaping up to be the MRCP 54(b) graveyard of appeals. Two more recent COA decisions have deep-sixed appeals where the appellants had taken the case up from a less-than-final judgment, adding to the growing list of dismissed appeals.
In Rebuild America v. Countrywide Home Loans and Bank of NY, decided May 15, 2012, Chancellor Carter Bise granted Countrywide’s and BNY’s motion for summary judgment, which set aside two tax sales to Rebuild America. Countrywide and BNY filed a pleading seeking confirmation of title and dismissal of all other defendants, but before it could be heard Rebuild America filed its appeal. The motion for a judgment was filed September 10, 2010, and has been held in abeyance these past 20 months pending the outcome of the appeal.
To make a long story short, Judge Griffis’s majority opinion once again points out what a lengthening line of cases has painfully established: if the judgment disposes of fewer than all of the issues or fewer than all of the parties, then it is not a final, appealable judgment unless the judge has properly certified it under MRCP 54(b). The appeal must be dismissed for lack of jurisdiction, and that is exactly what happened here … appeal dismissed.
So here, after a twenty-month delay and who-knows-how-much in fees, expenses and costs for the appeal, these folks are right back where they were on September 10, 2010.
In McMullin v. McMullin, decided May 29, 2012, Chancellor Dan Fairly had awarded custody clearly contingent on obtaining further evidence from a physician, and the record was kept open for that purpose. The appellant appealed anyway, with predictable results. The COA on its own motion restated the obvious point that you can not appeal from a less-than-final judgment unless and until the trial judge has certified the case under MRCP 54(b), and that certificate must make findings that comply with the rule. In neither McMullin nor Rebuild America did the appealing party seek or obtain MRCP 54(b) certification from the judge before filing the appeal.
Even with a 54(b) certificate, your appeal may fail if the appellate court finds that judge’s reasons inadequate or missing, or if the appellate court finds that the chancellor abused her discretion in granting it.
More posts on MRCP 54(b) are here, here, here, here, here and here. Ironically, one of those posts is entitled, “Finally, the Final Word on Finality.” At the rate we’re going, though, I suspect that there will be a few more “final words” on this subject before the year is out.
RFA’S, SANCTIONS AND THE “GOTCHA” EFFECT
June 4, 2012 § Leave a comment
Let’s say you are in the discovery stages of a child support modification case. Along with all of the other, usual discovery you send counsel opposite an MRCP 37 request for admission (RFA) to admit that the attached document is a “true, correct and authentic” copy of the minor child’s medical bills for the period 2008-2012. The bills would document in part the child’s increased expenses over the two years following the divorce. Because you are seeking authentication, you attach only the bills themselves, and not any self-authenticating certificate.
A couple of weeks later, you receive the response: “Denied. Respondent is without sufficient information to determine whether Exhibit A is a true, correct and authentic copy of the document which it purports to be.”
Since opposing counsel would not admit authenticity, you do the heavy lifting to get the documents authenticated at trial, and — a little p.o.’d at the extra work — you then ask the chancellor to impose sanctions, per MRCP 37(c), which states that the judge “shall” impose sanctions for failure to admit, unless the court finds certain factors present. Much to your chagrin, the trial judge overrules your motion, saying ” … the MRE provide procedures for authenticating medical records and entering them into evidence that do not involve the party opposite admitting to them. Further, the court recognizes that [your opposing party] did not prepare the records and is not the custodian.”
The scenario above is what happened in the case of Rhoda v. Weathers, decided by the MSSC on March 8, 2012, which reversed in part the COA’s previous ruling in the case. The MSSC decision is not designated for publication in the permanent reports, and is subject to being withdrawn, so you may not cite it as authority (rehearing was denied May 24, 2012). Chief Justice Waller’s opinion, though, has a thoughtful discussion of the real purpose for and approach of Rule 37 and the provision for sanctions. Here are some excerpts that explain the court’s reasoning:
¶6. A trial court’s decision whether or not to impose sanctions for alleged discovery violations is reviewed for abuse of discretion. Jones v. Jones, 995 So. 2d 706, 711 (Miss. 2008). The trial court’s decision should be affirmed unless a reviewing court has a “definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.” Id. (quoting Cooper v. State Farms Fire & Cas. Co., 568 So. 2d 687, 692 (Miss. 1990)).
¶7. When a party fails to admit a matter or the genuineness of a document that is later proven at trial, the requesting party may move the court to require the other party to pay the reasonable expenses the requesting party incurred in proving the matter or document. M.R.C.P. 37(c). The Rule states that the court “shall” make the order, unless it finds: 1) that the request was objectionable under Rule 36(a); 2) that the admission sought was of no substantial importance; 3) that the party failing to admit had reasonable ground to believe he might prevail on the matter; or 4) that there was other good reason for the failure to admit. M.R.C.P. 37(c).
¶8. The Court of Appeals held that none of the exceptions listed above applied to the requests. Rhoda, 2011 WL 3452121, at *6. The Court characterized Rhoda’s request as requesting that Weathers “admit the genuineness and admissibility of [Rhoda’s] medical records.” Id. However, the Court’s opinion did not specifically address what comprised these “medical records.” In fact, Rhoda requested that Weathers admit to the genuineness and admissibility of medical bills and various prescription receipts. However, the authenticity of these documents and their admissibility into evidence at a civil trial were matters outside of Weathers’s knowledge, thereby making her denials of the requests appropriate and not subject to sanction.
¶9. The purpose of requests for admission under Rule 36 is “to determine which facts are not in dispute.” DeBlanc v. Stancil, 814 So. 2d 796, 802 (Miss. 2002). “It is not intended to be used as a vehicle to escape adjudication of the facts by means of artifice or happenstance.” Id. ¶10. Mississippi Rule of Evidence 803(6) provides that business records may be admitted at trial. However, for the records to be admissible, the rule requires that the custodian or “other qualified witness” testify to their authenticity. M.R.E. 803(6). Otherwise, the document must be self-authenticating pursuant to Rule 902(11). M.R.E. 803(6). For a document to be self-authenticating, it must include a “written declaration under oath or attestation” from a custodian or other qualified witness that meets the authentication requirements of Rule 803(6). M.R.E. 902(11). [Emphasis in bold added]
¶11. Had Rhoda attached proper attestation of the documents’ authenticity when he propounded his requests, then Weathers would have had no good reason to deny the documents’ genuineness and authenticity. However, in his request, Rhoda failed to attach to his medical bills any affidavits or other written declarations by the custodians of these bills, or any other qualified witnesses, attesting to their authenticity. In essence, Rhoda’s requests sought to contravene the Mississippi Rules of Evidence. Rather than properly authenticating his medical bills according to the Rules of Evidence, he attempted to authenticate them by “artifice or happenstance.” As Weathers was neither the custodian of the documents nor a qualified witness, she did not have the requisite information to determine whether the bills were true, correct, and authentic copies of what they purported to be, nor did she have knowledge of how the bills were prepared. Weathers stated as much in her responses to the requests for admission. As such, she had “good reason” for failing to admit to Rhoda’s request. See M.R.C.P. 37(c); 8 Wright & Miller, Federal Practice and Procedure § 2290, 629 n.15 (“Since a statement of reasons why the party is unable truthfully to admit or deny is expressly permitted as a response to a request . . . it would be quite anomalous if a party who has stated valid reasons why this is so should be required to pay his opponent’s expenses.”). Recognizing this, the trial court refused to sanction Weathers for failing to admit to Rhoda’s requests. Under these facts, it cannot be said that the trial court abused its discretion in denying Rhoda’s motion for expenses. See Estate of Bolden ex rel. Bolden v. Williams, 17 So. 3d 1069, 1072 (Miss. 2009) (“A trial court has considerable discretion regarding discovery matters.”).
Some lawyers like to play “gotcha” games in litigation, and MRCP 37’s strict 30-day deadline and punitive provision for sanctions are tailor-made for that approach. Rhoda makes clear, however, that the courts prefer to hew to the true purpose of the rule, which is to help winnow out the facts that are not in dispute, and they reject attempts to escape adjudication of the facts by means of artifice or happenstance.
The Cooper case, cited in Rhoda, above, includes a discussion of the sanctionability of RFA’s addressed to the ultimate issue. In that case, the ultimate issue was whether the fire loss was due to arson. The court said at p. 689:
The larger point being that RFA’s aimed at the ultimate issue are going to be deemed by the court to be ineffective, and you need to be prepared to make your case.
[Thanks to COA Judge Ken Griffis for bringing the Rhoda case to my attention]
CREATING A RECORD
May 30, 2012 § Leave a comment
So you finally have that elusive chancellor hemmed up in the farthest backwater county of the district. Opposing counsel is finally here at the same time, and you have the file with you to present the motion you’ve been desparately trying to get the court to hear. Even your two witnesses and the other side’s three are present. Everything is in place …
… except the court reporter.
The judge smiles benignly and croons in a fatherly fashion “Well, sir, had I known there were to be any contested matters on the docket today, I would have insisted that my court reporter be here. Instead, I let her go to a doctor’s appointment. Now, if you’d like to proceed without a record I will accommodate you.”
What to do, what to do? Do you press forward without a record, or do you wait for a reporter? What do you do when you absolutely, positively have to get the matter heard right now, but you might have to appeal?
MRAP 10(c) has you covered. It says:
If no stenographic report or transcript of all or part of the evidence or proceedings is available, the appellant may prepare a statement of the evidence or proceedings from the best available means, including recollection. The statement should convey a fair, accurate, and complete account of what transpired with respect to those issues that are the bases of appeal. The statement, certified by the appellant or his counsel as an accurate account of the proceedings, shall be filed with the clerk of the trial court within 60 days after filing the notice of appeal. Upon filing the statement, the appellant shall simultaneously serve notice of the filing on the appellee, accompanied by a short and plain declaration of the issues the appellant intends to present on appeal. If the appellee objects to the tatement as filed, the appellee shall file objections with the clerk of the trial court within 14 days after service of the notice of the filing of the statement. Any differences regarding the statement shall be settled as set forth in subdivision (e) of this Rule.
Subsection (e) leaves it up to the trial judge to settle the matter.
That’s what happened in the COA case of Berryman v. Lannom, decided May 22, 2012. The parties each submitted their own best recollection of what had transpired in court the day of a hearing for distribution of interpled wrongful death proceeds that was tried without a record. The COA decision does not reflect why the parties presented the matter without making a record. The two versions conflicted, and the attorneys could not agree on how to harmonize them, so they submitted them to the chancellor, who ruled that the Lannom’s rendition was an accurate statement of what transpired. The case was decided on different issues, but the MRAP point is in the recitation of the facts.
MRAP 10(c) and (e) are a satisfactory escape hatch if and when you find yourself caught in a bind by uncontrollable circumstances. But I would not recommend that you leave it up to opposing counsel and the possibly foggy and mistakeable memory of a judge (some of us are borderline senile, after all) to decide what facts and findings will form the basis for your appeal. Better by far to have a verbatim transcript. And there are ways to correct and amend a verbatim record, too, but that’s fodder for another cannon.
ADMISSION OF ELECTRONICALLY STORED INFORMATION INTO EVIDENCE
May 29, 2012 § 3 Comments
Emails, cell phone text messages, FaceBook LinkedIn and MySpace posts and the like, electronic bulletin board comments, metadata, internal organization communications, computerized business and public records and documents, websites, chat room content, computer animations and simulations, digital photographs, market reports and commercial publications …
… all are finding their way into our court proceedings on a more frequent basis. That’s because people are increasingly using these forms of electronically stored data to communicate, do business, save information, and promote their businesses and personal interests.
Chancellor Ed Patten made an informative presentation to the chancellors at the Spring judges’ meeting that introduced us to the evidentiary concerns that are raised by all of these electronically stored data.
Just about everything you need to know about introducing these items into evidence is analyzed in the case of Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (USDC Md. 2007), a 58-page opinion that exhaustively considers all aspects of admissibility, including authentication, hearsay, best evidence rule and more. It’s a federal case, but the rules that underpin it are, for the most part identical to, or nearly identical to, the MRCP and MRE.
The decision also elucidates various rules that allow authentication by admission, which should give you some ideas about using requests for admission and depositions to do that job for you in discovery while you’re fishing for other info.
If you have a case involving introduction of these kinds of evidentiary matter, I encourage you to read the Lorraine decision and find the analogous Mississippi rules. If you use the latest MISSISSIPPI RULES ANNOTATED or do a little digging, you can come up with a few cases to toss onto the bench once the other side objects. The judge will be impressed and gratified (and maybe surprised) that a lawyer has done that homework before trial, so much so that you will likely get those documents into evidence.
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