Rules | The Better Chancery Practice Blog

HELPFUL HINTS FOR ATTORNEY’S FEES IN ESTATES

January 12, 2012 § 1 Comment

If you want to get paid in probate matters, you have got to give the judge the information he or she needs to make an award.

UCCR 6.12 says that you have to provide the court with all the information required in UCCR 6.11, and ” … the nature and effect thereof.” The information required in 6.11 is ” … the nature and extent of the service rendered and expense incurred … ” Fees may not be based on the value of any real property.

The factors that the court must consider in determining what is a reasonable attorney’s fee in an estate or probate matter are discussed in this earlier post.

I will not rule on attorney’s fees in a probate matter unless the attorney has given the interested parties notice of what the amount of fees requested is and what services were rendered. After all, the heirs, beneficiaries or ward are paying out of their own pockets, so they should have some say.

Here are some helpful hints to do it right:

Make an itemized statement showing the date you performed each service, the nature of the service, and the amount of time spent. An entry might read: 1-22-12 Preparation of Letters Testamentary 1/4 Hr.
If there is no dispute about your fee, either attach the itemized statement as an exhibit to your pleading to close the estate, or incorporate it into the pleading itself. That way, when the interested parties join in or sign it they are documenting that they agree with the fee. Include a statement to the effect that ” … based on the [itemized statement], petitioners agree that a reasonable fee is $ ______.”
If there is not agreement about the fee, spell out in the petition to close the estate that there is a dispute as to the fee, and set it for hearing.

If your fee is based on a contingent fee contract for wrongful death or some other claim of the estate, remember that UCCR 6.12 requires that your contract must be approved in advance, and that the ultimate award will be ” … such sum as will be reasonable compensation for the service rendered and expense incurred … ” Your claim for fees must set out (1) the total amount recovered, (2) the nature and extent of the service rendered and expense incurred by the attorney, and (3) the amount, if any, offered to settle before the attorney was hired.

To get an idea of the breadth of the chancellor’s discretion in awarding attorney’s fees in an estate, read In re Estate of McCullough, 58 So.3d 701 (Miss. App. 2009) in which the COA upheld the chancellor’s award of only $36,660 where the attorney had sought $88,550. A similar result was upheld in Barnes, Broom, Dallas & McCleod, PLLC v. Estate of Cappaert, 991 So.2d 1209, 1213 (Miss. App. 2008).

Attorney’s fees are the personal obligation of the fiduciary, but where the attorney’s services have benefited the estate, the fees may be paid out of the estate; conversely, if the attorney’s services have not benefited the estate, the estate should not have to bear the expense. Estate of Collins v. Collins, 742 So.2d 147, 148 (Miss.App. 1999).

NEWLY DISCOVERED EVIDENCE, NOT NEWLY MANUFACTURED EVIDENCE

December 19, 2011 § Leave a comment

MRCP 60(b)(3) provides that a court may grant relief from judgment based on “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).”

The Mississippi Supreme Court in the case of Moore v. Jacobs, 752 So.2d 1013, 1017 (Miss. 1999), pointed out that “A motion for a new trial based on new evidence is an extraordinary motion, and the requirements of the rule must be strictly met.” The decision set out five criteria that must me met in order for the trial court to grant relief:

The evidence was discovered following the trial;
There is proof, or it may be inferred, that the movant exercised due diligence to discover the new evidence;
The evidence is not merely cumulative or impeachment;
The evidence is material;
The evidence is such that a new trial would probably produce a new result.

“A party asking for a new trial on the ground of newly discovered evidence must satisfy the [trial] court that the evidence has come to his knowledge since the trial, and that it was not owing to a want of diligence on his part that it was not discovered sooner.” Sullivan v. Heal, 571 So.2d 278, 281 (Miss. 1990). “[F]acts implying reasonable diligence must be proved by the movant.” NLRB v. Decker & Sons, 569 F.2d 357, 363-4 (5th Cir 1978).

The decision of the chancellor to deny such a motion may only be reversed if the appellate court finds abuse of discretion. United Serv. Auto Assoc. v. Lisanby, 47 So.3d 1172, 1176 (Miss. 2010).

All of the authority cited above is extracted from Judge Griffis’s opinion in the COA case of Smullins v. Smullins, decided on rehearing November 29, 2011.

Shellie and Bradley Smullins battled over a divorce and custody of their son Devinn, who was age seven at the time. Neither party was an all-star parent. There was substantial evidence that each of them engaged in behaviors that called their parenting skills into question.

On August 8, 2008, following the trial, the chancellor issued a fifty-page opinion that included a detailed Albright analysis. He awarded Bradley sole physical custody of Devinn and granted the parties joint legal custody.

On August 9, 2008, Shellie and Devinn submitted to a DNA test, and on August 12, 2008, Wendle Hunt did the same. The test result established a 99.999996% probability that Hunt was the natural father.

On September 6, 2008, the chancellor entered the judgment of divorce, which was approved as to form by Shellie’s attorney.

On September 26, 2008, Shellie filed a motion for a new trial (reconsideration under MRCP 59) on the basis of newly discovered evidence. The motion included the following assertions: Devinn was conceived prior to the parties’ marriage, and they knew before the marriage that it was possible that Bradley was not the father; the DNA test shows that Wendle Hunt is the natural father; Wendle Hunt is ready, willing and able to act as the child’s father; and Wendle is “disturbed to learn that his son is being raised by a second generation alcoholic drug addict.”

At hearing, Shellie testified that she always knew that there was a possibility that Bradley was not Devinn’s natural father. She had offered a DNA test before the marriage, but Bradley had refused. Wendle did not know that he had fathered a child by Shellie.

The chancellor overruled the motion, and said:

“The new evidence regarding the paternity of [Devinn] was not discovered until after the trial but was known to [Shellie] prior to entry of the judgment. [MRCP] 58 states that, “a judgment shall be effective only when entered.” Therefore, the paternity of Devinn Wayne Smullins was known prior to the divorce being final but was not disclosed to this court.

Due diligence on the part of the movant to discover the new evidence is required. ‘A party can not fail to investigate important information and then attempt to assert that information as new evidence at the end of the trial.’ [citing Goode v. Synergy Corp., 852 So.2d 661, 664 (¶12) (Miss. Ct. App. 2003) …]”

The judge found that Shellie had failed to exercise due diligence and overruled her motion for reconsideration.

The COA affirmed, saying at ¶35:

Just like the chancellor, we fail to see how the paternity test results can be newly discovered evidence if she knew of the possibility of that very fact prior to the commencement of this legal action. Had Shellie alleged that, upon information and belief, Bradley was not Devinn’s biological father, then that very issue could have [been] tried to the chancellor and considered in the final judgment. But she failed to do so.

Another avenue that Shellie could have taken to try to avoid running into this brick wall would have been to file a motion to reopen her case before the judge entered the judgment. It’s still unlikely she would have been granted any relief given what she testified that she knew, but that would have given her another shot.

So here is an important distinction to draw from this case: Although it is true that the DNA test results did not exist until after the trial, Shellie and Bradley both knew, or had strong reason to believe, that Bradley was not the father. Thus, the DNA results were mere verification of evidence that the parties knew of and could have developed at trial.

Genuine cases of newly discovered evidence that come within the rule are indeed rare. When the situation does arise, however, you have to analyze it within the express requirements of the rule.

WHO OWNS THE FILE?

December 8, 2011 § Leave a comment

In the past few months, on two separate occasions, I have heard a witness say that he or she did not have certain documents because “my previous lawyer has them, and won’t give them to me until I pay my bill.”

When I was in practice I heard the same thing from time to time in various forms.

Now, I have no way to know whether what those statements were true, or whether they were based on a misunderstanding.

But the fact is that it is a long-standing ethical rule in Mississippi that the client has a right of access to the file file in the attorney’s office, regardless whether the client has any unpaid balance of fees or expenses.

Ethics Opinion 144, issued March 11, 1988, includes the following language:

This committee concludes that M.R.P.C. 1.16 modified the prior ethical rules of the Mississippi Bar Association only to the extent that the prior opinions required the unconditional delivery of the file by the lawyer. The current Rule only requires that the lawyer surrender papers and property to which the client is entitled. The Rule recognizes the lawyer’s right to retain papers to the extent permitted by law. Thus, the issue is primarily a legal matter concerning the ownership of the items in the file and the legal enforceability of the attorney’s lien. However, the ethical issue which the lawyer must weigh in the balance with his legal rights is at what point will the enforcement of his legal right breach his ethical duty under 1.16(d) to “take steps to the extent reasonably practicable to protect a client’s interest.” Each case will turn on its own facts, and it is not possible to anticipate each situation. Generally, if retaining the client’s file prevents the client from obtaining another lawyer or from proceeding with his case in a timely manner, then the lawyer may have breached the ethical duty owed to the client.

The ownership of the specific items contained in a file is a matter of law. Informal Opinion ABA No. 790 (Oct. 26, 1964). The client’s file consists of the papers and property delivered by the client or which the client caused to be delivered to the lawyer. DR9-102(b) (4). In addition, the “end product”, or in other words, what the lawyer was hired to do, is usually also considered to belong to the client. Wisconsin Bar Bulletin, June 1970 Supplement (Memo Opinion 4-78). On the other hand, the notes and memorandums are usually considered to belong to the lawyer and be his work product. Missouri Bar Bulletin, May 1978, Informal Opinion (Jan. 6, 1978). Contrary opinions can be found which indicate the client has no absolute right to the files. Maryland Opinions Informal Opinion 76-50 (March 1, 1976). This committee concludes that the better-reasoned opinions generally recognize that to the extent the client has a right to his file, then his file consists of the papers and property delivered by him to the lawyer, the pleadings or other end product developed by the lawyer, the correspondence engaged in by the lawyer for the benefit of the client, and the investigative reports which have been paid for by the client. San Diego Bar Association, 25 Dicta, May 1978 (Opinion 1977-3). However, the lawyer’s work product is generally not considered the property of the client, and the lawyer has no ethical obligation to deliver his work product. [Emphasis added]

That language arises out of professional rules that preceded the current ones, and are no longer in effect. Nontheless, I think the rationale is sound, and the opinion is still on the state bar’s website among the many other ethics opinions.

The kicker in the language above is the phrase ” … which have been paid for by the client” at the end of the italicized language. The problem usually arises when the lawyer wants to keep all those items until they have been “paid for by the client.”

You should read the entire opinion and draw your own conclusions, but I think that a fair reading is that the client is entitled to all documents he or she delivered to you and all end products, and you are entitled to keep all of your own notes, research and paperwork you generated. The client’s entitlement to the file documents should not be based on payment or non-payment, but rather on the prejudice that might result to the former client in the aftermath. For many years before EO 144, the inflexibile rule in Mississippi was that the lawyer had no right to deprive the client of the file due to non-payment.

May you charge the client to copy the file before you let it go? Ethics Opinion 105, issued September 9, 1985, includes this language: “… in the absence of controlling language in any applicable employment agreement, a lawyer discharged by his client in a pending matter may ethically charge his client for the actual cost of duplicating the client’s file but that the lawyer may not ethically condition release of the duplicate file on the prior payment of the copying costs. Because there is no apparent potential for prejudice to the client where the subject of the representation is concluded, the Committee concludes that after the conclusion of a matter the lawyer may charge a client for the actual copying costs for duplicating a file and condition the release of the duplicate file on the prior payment of the copying costs.”

UCCR 8.05, AMENDED

December 5, 2011 § Leave a comment

The Mississippi Supreme Court approved an amendment to the financial reporting form requirement on December 1, 2011. You can read the entire, amended rule here.

The amendment adds the following language:

The disclosures shall include any and all assets and liabilities, whether marital or non-marital. A party is under a duty to supplement prior disclosures if that party knows that the disclosure, though correct when made, no longer accurately reflects any and all actual income and expenses and assets and liabilities, as required by this Rule.

The amendment adds two significant provisions: (1) The duty to disclose both marital and non-marital financial matters; and (2) the duty to supplement.

Both of the added requirements clarify the duty of disclosure and give the courts clearcut authority when called upon to address less than candid financial reporting.

If I were practicing nowadays, I would create a handout for my clients detailing the duty of disclosure and the duty to supplement, and I would have my client sign a receipt for the handout to keep in my file. It could come in handy when the client gets burned to a charred ember for false or inadequate disclosure, and the client tries to point the finger of blame at the attorney.

I would also take great care with my 8.05’s. I would go over them with my clients to make sure they are complete and accurate.

If you still aren’t convinced of the importance of adequate, timely, up-to-date and supplemented 8.05 statements, I invite you to read yet again about the disastrous (for the non-disclosing party) case of Trim v. Trim. Fair warning, however: don’t read Trim right before bed time; it might keep you awake.

I’ve tried to stress on this blog just how crucial it is to your case to present a well-prepared financial statement. Here are some links:

ANOTHER WRINKLE IN WITHDRAWING FROM REPRESENTATION

November 21, 2011 § 1 Comment

We’ve talked here before about the proper procedure to withdraw from representing a client.

It often happens that the judge signs an order letting the attorney out, and in the same order sets the case for trial. That can cause problems for the remaining attorney and client, as was the case in Turner v. Turner, decided by the COA on November 1, 2011.

The Turner litigation spanned 4 years of conflict between Jane and Michael over a divorce and custody. There were trial dates set and continued, and intervening pleadings, culminating in a trial date on November 12, 2009.

On the last date set for trial, Michael appeared and saw his attorney talking first with counsel opposite and then the chancellor. He learned that his attorney had made a motion ore tenus to withdraw, even though UCCR 1.08 requires a written motion and notice. There also was not five days’ notice to opposing counsel or Michael, as required in MRCP 6. The judge signed an order on November 12, entered the next day, allowing Michael’s attorney to withdraw over counsel opposite’s objection and continuing the divorce trial to December 8. That order is the only record of what transpired that day. According to Michael, his attorney took him to a conference room where his attorney told him of the withdrawal and offered assistance in finding new cocunsel; however, Michael said that the attorney did not advise him of the reset trial date, and the attorney later testified that he had no recollection whether he had advised Michael of the trial date.

On December 8, 2009, court convened for the divorce and Michael was not present. The record showed that he had never missed any prior scheduled proceedings. The chancellor granted Jane a divorce on the ground of habitual drunkenness, and awarded her custody, marital property and attorney’s fees.

Michael timely filed a motion under MRCP 59 and 60 to set the divorce aside for lack of proper notice of the trial setting. The chancellor refused, citing MRCP 5. Michael appealed.

The majority COA opinion rejected the rationale that MRCP 5, which essentially provides that notice to an attorney is imputed to the client, was applicable here. Citing Fairchild v. GMAC, 254 Miss. 261, 265, 179 So.2d 185, 187 (1965), the opinion held that an attorney who has moved to withdraw cannot at the same time continue to exercise authority on behalf of the client with respect to other matters. “While ‘withdrawal is prospective [and] does not erase those steps in the proceeding already taken,’ withdrawal likewise prevents an attorney from taking future steps on behald of his client.” Id. The Turner opinion stated at ¶21 that “We find [Michael’s attorney] could not simultaneously withdraw as Michael’s representative and be ‘counsel for the defendant’ for purposes of notice of the December 8 hearing.”

The COA admonished trial judges to follow UCCR 1.08 and MRCP 6 in entertaining motions to withdraw, and found that due process was lacking in this case. At ¶25, the court prescribed the solution for future cases:

” … [I]n cases where permission to withdraw is granted outside of the presence of the requesting attorney’s client, to avoid future notice problems, it is certainly permissible for a chancellor to enter a written order scheduling a future hearing, which expressly conditions the requesting attorney’s withdrawal only upon submission of proof to the court that he or she has given notice of the subsequent hearing to the client. Another suitable method, under this circumstance, would be to allow withdrawal of counsel subject to the condition that subsequent papers may continue to be served upon counsel for forwarding purposes as the judge may direct, unless and until the client appears by other counsel or pro se.”

In my opinion, the problem in this case could have been avoided if the defendant had been required to sign off on the order that let his attorney out of the case and set the trial date. He would have been hard-pressed to argue later that he did not have notice of the trial date. That’s the practice we try to follow in this district. Of course, we also try to follow UCCR 1.08 and MRCP 6 in these situations, but sometimes things come up at the last minute, and, in those cases we try to document as best we can.

The majority opinion in Turner provoked staunch dissents from Judges Russell and Griffis. Russell attacked the chancellor’s grant of a divorce, denial of visitation and other relief. Griffis took issue with the majority’s due process rationale.

UCCR 8.06 ON STEROIDS

October 25, 2011 § 7 Comments

Unless you’ve been practicing law under a rock for the past umpteen years, you are surely aware of the requirements of UCCR 8.06. That’s the rule that mandates filing each party’s name address and telephone number with the chancery clerk, with service on the other party, in every action involving custody of children, and within five days of any change.

Did you know that there is a statutory counterpart to UCCR 8.06 that requires even more detailed information in paternity and child support cases?

MCA § 93-11-65 (5) now provides that:

Each party to a paternity or child support proceeding shall notify the other within five (5) days after any change of address. In addition, the noncustodial and custodial parent shall file and update, with the court and the state registry, information on that party’s location and identity, including social security number, residential and mailing addresses, telephone numbers, photograph, driver’s license number, and name, address and telephone number of the party’s employer. This information shall be required on entry of an order or within five (5) days of a change of address.

This provision is not limited to DHS actions for support. In my opinion, it applies in all cases where there is a provision for child support, including irreconcilable differences divorces. You should see to it that this is addressed in your property settlement agreements and judgments.

WHAT IS THE EXTENT OF THE DISABILITIES OF MINORITY?

October 17, 2011 § 3 Comments

Minors can not act for themselves. We call this the “disability of minority,” and the chancery court is charged with protecting their rights. Alack vs. Phelps, 230 So. 2d 789, 793 (Miss. 1970).

The principle of minority disability is in keeping with the ancient maxim of equity that “When parties are disabled equity will act for them.” Griffith, Mississippi Chancery Practice, Section 34, page 37 (1950 ed.). More than 130 years ago, in the case of Price vs. Crone, 1871 WL 8417, at 3 (1870), the Mississippi Supreme Court stated:

“Nothing is taken as confessed or waived by the minor or her guardian. The court must look to the record and all its parts, to see that a case is made which will warrant a decree to bind and conclude [the minor’s] interest, and of its own motion, give the minor the benefit of all objections and exceptions, as fully as if specially made in pleading … There being no power in the infant to waive anything, a valid decree could not be made against her, unless there has been substantial compliance with the requirements of the law, in the essential matters.” [Emphasis added]

Thus, the chancery court can and should act on its own initiative to protect and defend the minor’s interest.

In the case of Khoury vs. Saik, 203 Miss. 155, 33 So.2d 616, 618 (Miss. 1948), the supreme court held that, “Minors can waive nothing. In the law they are helpless, so much so that their representatives can waive nothing for them …” This is so even where the minor has pled, appeared in court, and even testified.” Parker vs. Smith, et al., 150 Miss. 849, 117 So. 249, 250 (Miss. 1928).

Our modern MRCP 4(e) embodies these concepts wherein it specifically states that, “Any party … who is not an unmarried minor … may … waive service of process or enter his or her appearance … in any action, with the same effect as if he or she had been duly served with process, in the manner required by law on the day of the ate thereof.” There is no provision in MRCP 4 that permits a minor to join in an action on his or her own initiative, or to waive process; in fact, the express language of Rule 4 makes it clear that such is not permitted.

It is a long-held fundamental of Mississippi law that process must be had on infants in the form and manner require by law, and a decree rendered against minors without service in the form and manner required by law is void as to them, as they can not waive process. Carter vs. Graves, 230 Miss. 463, 470, 93 So.2d 177, 180 (Miss. 1957).

The purpose of the protective posture of the law is clear: “Minors are considered incapable of making such decisions because of their lack of emotional and intellectual maturity.” Dissent of Presiding Justice McRae in J.M.M. vs. New Beginnings of Tupelo, 796 So.2d 975, 984 (Miss. 2001). During the formative adolescent years, minors often lack the experience, perspective and judgment required to recognize and avoid choices that are not in their best interest. Belotti vs. Baird, 443 U.S. 622, 634, 99 S.Ct. 3035, 3043 (1979).

In the case of In the Matter of R.B., a Minor, by and through Her Next Friend, V.D. vs. State of Mississippi, 790 So.2d 830 (Miss. 2001), R.B., an unmarried, seventeen-year-old minor, became pregnant and sought chancery court approval of an abortion, pursuant to MCA § 41-41-55(4). The decision described her as, ” … of limited education, having attended school through the eighth grade,” and largely ignorant of the medical and legal implications of her request. Id., at 831. The decision reveals that the chancellor went to great pains to develop the record that the young girl had not been informed of the possible complications of the surgical procedure, that she was emotionally fragile and susceptible to mental harm, that there were services available to the youngster of which she was unaware, and other pertinent factors. Id., at 834. The supreme court upheld the decision of the chancellor, saying,

“R.B. has failed to persuade us that she is mature enough to handle the decision (for an abortion) on her own. The record does not indicate that the minor is capable of reasoned decision-making and that she has considered her various options. Rather the decision shows that R.B.’s decision is the product of impulse.” Id., at 834.

It has long been the law in Mississippi that all who deal with minors deal with them at their peril, since the law will take extraordinary measures to guard them against their own incapacity.

The principle of minority disability is ingrained in many facets of Mississippi law:

Minors may not vote. Article 12, Section 241, Mississippi Constitution.
Minors may not waive process. MRCP 4(e).
Minors may not select their own domicile, but must have that of the parents. Boyle vs. Griffin, , 84 Miss.41, 36 So. 141, 142 (Miss. 1904); In re Guardianship of Watson, , 317 So.2d 30, 32 (Miss. 1975); MississippiBand of Choctaw Indians vs. Holyfield, 490 U.S. 30, 40; 109 S.Ct. 1597, 1603 (1989).
Minors may not enter into binding contracts regarding personal property or sue or be sued in their own right in regard to contracts into which they have entered. MCA § 93-19-13.
Minors may not have an interest in an estate without having a guardian appointed for them. MCA § 93-13-13.
Minors may not purchase or sell real property, or mortgage it, or lease it, or make deeds of trust or contracts with respect to it, or make promissory notes with respect to interests in real property without first having his or her disabilities of minority removed. MCA § 93-19-1.
Minors may not be bound by contracts for the sale of land, and may void them at their option.Edmunds vs. Mister, 58 Miss. 765 (1881).
Minors may not choose the parent with whom they shall live in a divorce or modification; although they may state a preference, their choice is not binding on the chancellor. MCA § 93-11-65; Westbrook vs Oglesbee,606 So.2d 1142, 1146 (Miss. 1992); Bell vs. Bell, 572 So.2d 841, 846 (Miss. 1990). Minors may not after emancipation be bound by or enforce contracts entered into during minority except by following certain statutory procedures. MCA § 15-3-11.
Minors may not legally consent to have sexual intercourse. MCA § 97-3-65(b).
Minors may not legally consent to be fondled. MCA § 97-5-23(1).
Minors are protected by an extended statute of limitations. MCA § 15-1-59.

It’s important to be aware of the legal status of the persons with whom you are dealing in land transactions, estates, contracts, and many other legal matters. In Mississippi, minors have many legal protections and disabilities that the courts will zealously guard.

YET MORE ON POST-TRIAL MOTIONS AND APPEALS

October 12, 2011 § 3 Comments

I posted here, here and here about the COA and post-trial motions.

On October 11, 2011, the COA in Aspired Custom Homes, LLC v. Todd and Tina Melton, there is this language by Judge Carlton, at ¶ 11:

While Aspired appeals the judgment of the chancery court questioning the judgment’s substance, we acknowledge the record reflects the chancellor denied a timely filed post-trial motion brought by Aspired pursuant to Rule 59(e) — a motion to alter or amend judgment. See M.R.C.P. 59. Aspired filed a motion pursuant to Rule 59(e) and raised four issues before the chancellor. However, a party is not required to file a post-trial motion in chancery court in order to appeal the chancery court’s judgment. We therefore address the merits of the appeal before us, questioning the substance of the chancellor’s judgment. [Emphasis added]

In a footnote to that paragraph, the opinion stated:

If a party’s motion for reconsideration is served within ten days of the rendition of judgment, the motion falls under Rule 59(e) of the Mississippi Rules of Civil Procedure. Carlisle v. Allen, 40 So. 3d 1252, 1260 (¶33) (Miss. 2010) (citing Cannon v. Cannon, 571 So. 2d 976, 978 (Miss. 1990)). The Mississippi Supreme Court has established that to succeed on a Rule 59(e) motion, “the movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.” Brooks v. Roberts, 882 So. 2d 229, 233 (¶15) (Miss. 2004). Case law has also provided that “[a]n appeal from a denial of a Rule 59 motion may address the merits of the entire underlying proceeding, and review of a trial judge’s denial of a Rule 59 motion is limited to abuse of discretion.” Perkins v. Perkins, 787 So. 2d 1256, 1261 (¶9) (Miss. 2001). In this case, the notice of appeal reflects only an appeal by Aspired from the judgment of the chancellor, with no reference to the unsuccessful post-trial motion.

That, in my opinion, is an accurate statement of what Mississippi law has been in chancery bench trials, and I’m glad to see it clearly stated.

So, based on the language above, a post-trial motion is not a prerequisite to an appeal from a chancery bench trial. But the question remains whether a post-trial motion is necessary to preserve particular issues for appeal, as the COA case cited in the prior post would indicate. Here’s some language that may remove all doubt:

“It is clearly the better practice to include all potential assignments of error in a motion for new trial. However, this approach is not always practical. Because a trial transcript is rarely available within the time frame for filing post-trial motions, the most prudent attorney cannot be expected to pinpoint every objection raised and ruling made during the course of the trial. Thus, when the assignment of error is based on an issue which has been decided by the trial court and duly recorded in the court reporter’s transcript, such as the admission or omission of evidence, we may consider it regardless of whether it was raised in the motion for new trial. [Emphasis added] Kiddy v. Lipscomb, 628 So. 2d 1355, 1359 (Miss. 1993).

_____________________

Thanks to Thus Blogged Anderson for the Kiddy v. Lipscomb cite .

THE YOKE OF PROBATE

October 10, 2011 § 1 Comment

It looks like easy money. Grandma is sitting in your office with a fistful of greenbacks, asking you to open a guardianship so that she can get grandson into the county school. Momma is agreeable, daddy is in prison and will sign whatever you send him, and the child needs to get into school.

Before you file those papers and track down your chancellor, consider:

When you enter your appearance, you are responsible as attorney for the guardianship forever, or until the judge lets you out, or until the guardianship is closed, whichever occurs first.
There will be an accounting, or at least a reporting, requirement, for which you as counsel will be held responsible.
Your compensation will be fixed by the chancellor, and it may not be as much as you would like to charge.
You will be responsible to report to the court any misfeasance, malfeasance or neglect of duty by the fiduciary.

I encourage you to read UCCR 6.01 and 6.02 before you file that petition to open the guardianship. Your duty and liability as an attorney in a simple guardianship of the person is every bit as great as it is in a guardianship where the ward has thousands of dollars in the bank.

We regularly send out orders for lawyers to bring their accounts current in all probate matters, including guardianships of the person only. In guardianships of the person, we require a report at least every other year that (a) the guardianship continues to be necessary due to the age or circumstance of the ward, and (b) that no assets have come to the ward since the last report. It is not uncommon for lawyers to call and have some problem with that requirement. Some customary complaints:

“I wasn’t paid enough to continue to do work in this case.” UCCR 6.01 expressly states that “When an attorney has once appeared for a fiduciary, in any respect, he may withdraw only with the consent of the Chancellor, after notice to the Chancellor, after notice to the client.” That rule also requires the fiduciary to be represented by a lawyer at all times. This means that once you appear, you are in it until someone takes your place or the matter is finally closed.
“I can’t find my fiduciary.” You are responsible to keep up with the guardian and his or her activities so as to advise the court as required by UCCR 6.02. You have some liability to the ward if the fiduciary receives assets of the ward and squanders them.
“This was only a guardianship for school purposes; why do we have to jump through all these hoops?” Because the law does not lower the protective bar for benefit of a ward “merely” because this is a guardianship of the person, and you, as attorney for the fiduciary, have a professional, legal, ethical and equitable duty to the ficuciary, the court and the ward.

I am not suggesting that you not file that guardianship action. I am suggesting that you read the rules and understand exactly what you and your client are taking on when you shoulder the yoke of probate.

DISESTABLISHING PARENTAGE, STEP BY STEP

September 20, 2011 § 5 Comments

As I posted here before, the legislature has adopted a procedure to disestablish parentage (paternity) in light of Williams v. Williams, 843 So.2d 720 (Miss. 2003), and its progeny, which hold that a man who is determined by DNA testing not to be the father of a child should not continue to be responsible for the support of that child.

The new code section, MCA § 93-9-10, went into effect July 1, 2011. The very first sentence of the statute states that “This section establishes the circumstances under which a legal father may disestablish paternity and terminate child support when the father is not the biological father of the child.” In my opinion, this code section is now the exclusive remedy for a father in these circumstances. Any proceeding such as a petition to remove the father from the birth certificate, or a joint petition to disestablish paternity, or a modification pleading that does not meet the requirements of the statute will be ineffective.

You may well ask, “But if the father and mother agree, what is the harm? Why not simply approve their agreement?” First of all, there are the welfare and rights of the child to consider. See, Kelly v. Day, 965 So.2d 749 (Miss. App. 2007). And secondly, if the procedure is ineffective, the child will have a later cause of action for support, making the whole earlier procedure a waste of time.

Before I step through the statute with you, please let me urge you to read the statute. I swear, it won’t take more than five minutes. If you’re going to advise clients about this, you need to be familiar with what it says.

So here is the procedure, step by step (statutory requirements in bold, my comments in regular font):

The father must file a petition in the court having jurisdiction over the child support obligation. This means that if the county court, or chancery court in another county, has entered a child support order, the petition must be filed in that court.
Process and a copy of the petition must be served on the other parent or guardian; if DHS is or has been a party to the paternity action or collection of child support, the Attorney General of the State of Mississippi must be served with process. In my opinion, since this action is under the chapter dealing with parentage (bastardy), 30-day process would be required pursuant to MRCP 81 (d)(1).
The petition must include: (a) an affidavit executed by the petitioner that he or she (there is nothing in the statute that says that the mother is precluded from filing a petition) has newly-discovered evidence since the paternity determination relating to parentage of the child, and (b) the results of a genetic or other scientific parentage test administered within one year of the filing of the petition excluding the legal father as biological father of the child or an affidavit executed by the petitioner that he did not have access to the child for testing before the filing of the petition; in the latter case, the petitioner may request that the mother (if available), child and father submit to such testing.
The court shall grant the relief on a properly filed petition if the court finds all of the following: (a) There is newly-discovered evidence as averred; (b) the scientific testing was properly conducted; (c) the legal father has not adopted the child; (d) the child was not conceived by artificial insemination while the legal father and mother were married; (e) the legal father did not prevent the biological father from asserting his parental rights with respect to the child. I recommend that your petition include allegations (a) through (e). Your client is swearing that all of these statements are true, and you are vouching under MRCP 11 (a) that the pleading has “good ground to support it.” And make sure your client reads it before signing. He is swearing all of this is true, andd if he balks or hems and haws, you might want to think about going back to the drawing board.
The court shall not set aside the paternity determination or child support order if the court finds that the legal father did any of the following: (a) Married or cohabited with the mother and assumed parental obligation and support of the child after having knowledge that he was not the biological father; (b) consented to be named as father on the birth certificate or signed an acknowledgment of paternity and failed to withdraw within the time periods mandated by MCA §§ 93-9-9 and 93-9-28, unless he can prove fraud, duress, or material mistake of fact; (c) signed a stipulated agreement of paternity that has been approved by order of the court; (d) signed a stipulated agreement of support that has been approved by order of the court after having knowledge that he is not the biological father; (e) been named as legal father or ordered to pay support after he declined to undergo genetic testing; or (f) failed to appear for a genetic testing draw pursuant to a valid court order. Same advice here about incorporating these as allegations in your petition. Make your client swear that he has not done any of the foregoing. The rationale above applies here.
If the petitioner does not make the required showing, the court shall deny the petition.
Relief is limited to prospective (future) child support, past-due child support payments, termination of parental rights, custody and visitation. The statute does not create a cause of action to recover child support paid before filing of the petition. The statutory procedure can not be used to litigate previously-paid child support. It can be used to address past-due child support, parental rights, custody and visitation.
The court may not suspend the child support obligation while the petition is pending, although the court may order that such payments may be held by the court or DHS pending a final determination. My suggestion is to plead for the court or DHS to hold the child support funds pending litigation, if that is what your client wants. If you don’t specifically ask in your petition for that relief, you likely will not get it.
The party requesting genetic testing shall pay its fees. There is no provision in the statute for the court to tax the fees other than to the party who requests it.
The usual authority of the court on motion or its own motion to order the parties to submit to genetic testing applies.
The unsuccessful petitioner shall be assessed with court costs, genetic testing fees and reasonable attorney’s fees. Here’s the reason why I suggested above that you specifically plead all of those qualifying and possibly disqualifying facts and make your client read carefully before signing. Clients sometimes will lead you to believe that they have a case, and will omit some important detail, like the execution of that acknowledgment of paternity. They think they can pull a fast one on the court, or that it somehow will slip by unnoticed. The result of failure for the petitioner is being assessed with some significant expenses. The result for you is egg on your face and slipping a notch in the court’s regard of your own credibility.

This statute should go a long way toward eliminating the welter of approaches that lawyers have taken to address the disestablishment of paternity. Now there is a single statutory provision. Read the statute, follow it, and you might accomplish something for your client.

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