PLEADING THAT WHICH MUST BE PLED

July 26, 2011 § 2 Comments

If you will read the statutes that apply in your case, you will find exactly the language you need to plead a proper claim and lay out jurisdiction and venue. It’s right there in the code. The closer you adhere to the statutory language, the more likely it is that your complaint will withstand an MRCP 12(b)(6) motion.

For example, in a divorce case, you must plead all of the following: either one or more grounds set out in MCA §93-5-1, and/or irreconcilable differences as in MCA § 93-5-2; and proper venue as in MCA § 93-5-11; and that one of the parties meets the residence requirement of MCA § 93-5-5. All of the language you need to do that is right there in the statutes for your penalty-free plagiarization.

As a side note, many older chancellors through the years required the complaint to quote the language of the residency statute for divorce that, ” … [plaintiff] has been an actual bona fide resident within this state for six (6) months next preceding the commencement of this suit.” If you varied by a single word, you had pled yourself out of court. There may still be chancellors adhering to that practice. Whether your chancellor does or not, you can’t go wrong tracking the language of the statute.

Some lawyers copy other lawyers’ pleadings. That’s fine as long as the copied pleadings are adequate. Several years ago a few new lawyers used pleadings filed by a weathered, older lawyer as their template. You could tell because they slavishly replicated the older lawyer’s misstatement that “Plaintiff is entitled to a divorce from the defendant on the ground of habitual cruel and inhuman treatment as codiciled in Section 93-5-1, MCA.” If you’re going to copy, at least put some thought into what you’re doing.

The MRCP offer another source of pleading material. For instance, if you will read Rule 57, you will find every word you need to plead to obtain a declaratory judgment. Same with Rule 56 summary judgment. Same with Rule 65 for temporary restraining orders, temporary injunctions, and preliminary and permanent injunctions.

In modification of custody cases, you will be out of court on your ear unless you plead specifically in your petition that (1) there has been a material change in circumstances that (2) is having or has had an adverse effect on the minor child(ren), and (3) that it is in the best interest of the child(ren) to change custody to your client. McMurry v. Sadler, 846 So.2d 240, 243-4 (Miss. App. 2002). Note that in McMurry, the petitioner had pled only a material change justifying modification. The respondent moved to dismiss for failure to state a claim at the outset of trial, and the judge even prompted counsel that the word “adverse” was absent. The judge dismissed the pleading with leave to amend, and counsel for petitioner moved ore tenus to amend to add the language that an adverse effect would occur if modification were not granted. At that point, the chancellor found the pleadings insufficient as a matter of law and dismissed with prejudice. The COA affirmed.

As McMurry illustrates, faulty pleading will cause nothing but trouble. And it can be fatal. Look what happened there: the judge granted leave to amend as is prescribed in MRCP 12(b), but when counsel failed to fix the problem by amendment, the judge took the case off of the respirator and it died.

What if counsel for the respondent had said nothing about the adequacy of the pleadings before trial, but then had objected to every question about any adverse effect on the basis that it had not been pled? I saw that on more than one occasion when I was in practice, and the judge always sustained the objections, effectively gutting the petitioner’s case, or, more accurately, letting it gut itself. If you’re in that situation and you’re not too discombulated to think clearly, you might try making a Rule 15 motion for leave to amend. Maybe the judge will let you off the hook. At least you will have it in the record.

THE AFFIDAVIT OF “REASONABLY DILIGENT INQUIRY” FOR CLAIMS AGAINST THE ESTATE

July 25, 2011 § 11 Comments

MCA § 91-7-145(1) requires the estate fiduciary to make “reasonably diligent inquiry” to identify persons who have claims against the estate, and to notify them by mail at their last known address that failure to probate a claim within the statutorily-prescribed time will bar their claims.

MCA § 91-7-145(2) provides that:

“The executor or administrator shall file with the clerk of the court an affidavit stating that such executor or administrator has made reasonably diligent efforts to identify persons having claims against the estate and has given notice by mail … to all persons so identified. Upon filing such affidavit, it shall be the duty of the executor or administrator to publish in some newspaper in the county a notice requiring all persons having claims against the estate to have same probated and registered by the cleerk of the court granting the letters, which notice shall state the time when the letters were granted and that a failure to probate and register within ninety (90) days after the first publication of such notice will bar the claim … ” [Emphasis added]

Most lawyers refer to this as the “Affidavit of Creditors.”

Clearly, then, the statute requires these measures, in this order:

  1. First, identify those having a claim against the estate;
  2. Send them notice conforming to the statute;
  3. File an affidavit with the clerk stating compliance with the statute;
  4. Publish notice to creditors.

Skip a step and you will have to start over. Go out of order and you will have to start over. Notice the language of the statute: it says that publication is undertaken “[u]pon filing such affidavit …” That clearly requires that you may not publish until after the affidavit has been filed. And, of course, the affidavit can not be filed until after you have made diligent inquiry and mailed your notices, if any.

In the case of In re Estate of Petrick, 635 So.2d 1389 (Miss. 1994), the untimely claim of a creditor was allowed because the administratrix published without notifying a creditor whom the court found was “reasonably ascertainable.” The court added that notice may be published only after the affidavit has been filed (at 1394).

In Houston v. Ladner, 911 So.2d 673 (Miss. App. 2005), the COA found the chancellor in error for finding a probated claim time-barred without first finding that the creditor was a reasonably ascertainable creditor. The creditor had not been sent notice by mail, and the COA pointed out that publication notice was not a substitute for mail notice; it was required in addition to mail notice.

Here are a couple of practice tips to help you comply with the statute:

  • Always question your fiduciary about bills of the decedent. It will be hard to argue that BOA Visa was not a “reasonably ascertainable” creditor when your fiduciary had been paying the bill herself for three months after the decedent died and before the estate was opened. It will be harder still to argue that the attending physician at the time of death was not “reasonably ascertainable.”
  • Why not include the required affidavit in your petition to open the estate, or in the fiduciary’s oath, whichever is the appropriate point for you? Maybe by eliminating one extra piece of paper you will be more likely to do it right.

Reminder: MCA § 93-13-38 makes the foregoing provisions applicable to guardianships and conservatorships, as well as estates.

The statutory requirements are technical and mandatory. Read the code and do what it says. Doing so can save you considerable grief down the road.

COA SINKS ANOTHER APPEAL FROM A LESS-THAN-FINAL JUDGMENT

July 20, 2011 § 4 Comments

It was only last month that the COA dispatched two appeals to dismissal-land because they were taken from less-than-final judgments. You can click the link to read about Jackson v. Lowe and S.E.B. v. R.E.B. The underlying principle is, you will recall, that an appeal only lies from a final judgment, and if any issues remain unadjudicated and not addressed as required in MRCP 54(b), your appeal will be dismissed.

The COA once again confronted the issue in R.A.S. Jr., K.S., A.S, V.S. and M.S. v. S.S., rendered July 19, 2011. In that case, the appellant, referred to as “Matt,” had filed a Chancery Court modification action seeking to reduce his $6,900 per month child support. His ex, “Anna,” responded by charging him with molesting one of their children. The charges were nol prossed, and Matt countered with a chancery motion for an accounting of the child support. Later, he filed an amended petition asking to “reform” original decree provisions for child support and custody.

The chancellor held a motion hearing and, without hearing any evidence, ruled from the bench that he was going to leave physical custody and legal custody as they were. He stated, “I’m not here today to decide [the modification issue] … I’m not going to address those motions stoday as to whether or not they meet the legal standard.” The judge later entered an order denying Matt’s request for an accounting, reserving ruling on the modification.

Matt filed a motion for a new trial (Note: in chancery this is a motion for rehearing, traditionally referred to as a motion for reconsideration), and Anna filed a motion for payment of certain expenses provided in the original judgment. The judge overruled Matt’s motion and denied Anna’s motion without addressing certain transportation expenses she had requested.

Matt complained on appeal that the chancellor refused to allow him to present evidence on his modification pleading, instead putting off a hearing so that Anna’s parenting could be monitored. A guardian ad litem had been appointed.

In every one of the chancellor’s rulings cited by the COA, it is clear that the judge was not making a final ruling. The COA said at ¶ 20 that

“The chancellor’s orders here were not final. We fully recognize that child-custody decisions are always subject to modification until the children’s emancipation. And no judgment entered is final in the sense of ending the case until that point. However, that the case involves custody modification does not eliminate the requirement that the chancellor enter a final, appealable judgment. Absent proper Rule 54(b) certification or the supreme court’s permission to proceed on an interlocutory appeal, which are both lacking here, piecemeal appeals are not allowed.

The chancellor clearly deferred ruling on contested issues, which he had not revisited when the parties appealed. Because we find the chancellor did not enter a final, appealable judgment, we dismiss this appeal for lack of jurisdiction.”

The court also pointed out that the supreme court has held in Michael v. Michael, 650 S0.2d 469, 471 (Miss. 1995), that parties may not appeal from a temporary order.

From Judge Maxwell’s opinion in this case, it appears that the record was somewhat confused. It may have been confusing to counsel as to exactly what matters were being addressed in which proceedings. I suggest you get a clear understanding with your chancellor either before hearing or when he casts the pleadings at the outset of trial as to what matters will be addressed. If you’re perplexed that the judge won’t address a certain issue at a certain time, try to pin him down on the record as to when, exactly, you can be heard on the issue.

In any event, the COA has once again sent an important message to trial and appellate counsel: If you don’t have a final, appealable judgment, your appeal will be dismissed.

A LESS-THAN-FINAL JUDGMENT

July 6, 2011 § 3 Comments

It sometimes happens that the chancellor grants some of the relief requested, saying in effect, “That’s all I’m going to do,” and directs entry of a final judgment.  It happens, for instance, where one party asks for an award of attorney’s fees and the court does not want to grant it, or where one party in a divorce wants the living room furniture that the other party has and the judge leaves things as they are. You can conjure up some similar scenarios.

The question is: when the judge does that, is there a final, appealable judgment?

The COA addressed what is not a final, appealable judgment in two recent decisions handed down the same day.

In Jackson v. Lowe, decided June 28, 2011, the COA answered the question by reference to MRCP 54(b), which states:

When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

In Jackson, the court held that since the chacellor’s decision did not address several issues and did not certify that it was a final judgment as to the issues adjudicated, it was an interlocutory judgment that was not appealable, and until the parties saw to it that all issues had been addressed, there was no jurisdiction for an appeal. 

A similar result was reached in S.E.B. v. R.E.B. decided June 28, 2011, in which the chancellor flatly refused to adjudicate alimony and child support.

What the COA is telling you is that unless the trial court’s judgment addresses every claim, or unless you have a Rule 54(b) certificate from the trial judge, you are going nowhere on appeal until you do.

I posted here about some of the nuances of Rule 54(b), and you might want to take a look at the post again.

I have almost always included a paragraph in my judgments that states to the effect that “The court has considered all other issues and prayers for relief asserted by the parties and finds that they should be denied and no further relief granted.” I do not know whether that will suffice as an adjudication, and after the S.E.B. decision, I’m not so sure; no one has ever raised the issue. Of course, I use that only for miscellaneous issues that do not have trial factors because failure to address applicable trial factors is reversible error. I also have included a Rule 52(b) certificate in appropriate cases.

Moral of the story: If you are not satisfied that the chancellor has met the requirements of Rule 52(b), be sure to file the proper motion for a certificate, and do it timely. If you are outside the 10-day requirement of Rule 59, you might want to file a motion to set the remaining issues for trial. Yes, this will likely steam up your judge, who probably figured your case was concluded, but just smile and show her a copy of Jackson v. Lowe, and maybe everything will be all right.      

A COMPENDIUM OF ESTATE POSTS

July 5, 2011 § 6 Comments

PERILS OF PROCESS BY PUBLICATION, EPISODE THREE

June 27, 2011 § 9 Comments

You can read here and here some of the snares in MRCP 4 that can snap painfully on the unwary.  Unwary = those who don’t bother to read the rules.

MRCP 4 publication claimed its latest victim on June 14, 2011, in the COA case of Turner v. Deutsche Bank.  In that case, the bank filed a judicial foreclosure and published process to Angela Turner.  The original complaint recited Angela’s address, and the bank duly sent its process server there, only to discover that she had moved, whereabouts unknown.  At that point, without amending its pleadings or filing an affidavit of diligent inquiry, Deutsche published process and a chancellor signed a default judgment finding, among other things, that the court had jurisdiction.

Angela awoke to what had happened and filed an MRCP 60 motion to set aside the judgment, and the original chancellor recused herself.  Her successor overruled Angela’s motion in part because the court had already ruled that it had jurisdiction.

The court of appeals reversed and remanded.  Here are some pertinent excerpts from the decision:

  • “Deutsche Bank attempted to serve Turner by publication under Rule 4(c)(4), which provides for situations where the defendant cannot be found within the state. Publication of the summons must be made once a week for three consecutive weeks in the public newspaper of the county if one exists, as in our case. M.R.C.P. 4(c)(4)(B). But service by this method is only permitted “[i]f the defendant . . . be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry.” M.R.C.P. 4(c)(4)(A).”
  • “¶10. The affidavit or sworn complaint must also state the defendant’s post-office address, if known, or swear that it could not be determined after a diligent inquiry. Id. If the postoffice address is listed, the sworn petition or affidavit must further provide the defendant’s street address or that it could not be determined after a diligent inquiry. M.R.C.P. 4(c)(4)(B). And if the plaintiff provides a post-office address, the clerk must mail the defendant (by firstclass mail, postage pre-paid) a copy of the summons and complaint to his post-office address, and note having done so on the general docket. M.R.C.P. 4(c)(4)(C). “
  • “¶12. 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) (internal citation omitted). Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So. 2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759 So. 2d at 1257 (¶33). [Emphasis added]
  • “¶13. In Kolikas, we found a chancellor erred in failing to set aside a divorce decree, where the plaintiff attempted service by publication without strictly complying with the requirements of Rule 4(c)(4). Kolikas, 821 So. 2d at 879 (¶32). We observed that a defendant is “under no obligation to notice what is going on in a cause in court against him, unless the court has gotten jurisdiction of him in some manner recognized by law.” Id. at 878 (¶17).”  [Emphasis added]
  • In the petition or affidavit, the plaintiff must certify to the court, among other things, that the defendant is a nonresident or cannot be found in Mississippi.
  • This conclusion is supported by the supreme court’s decision in Caldwell v. Caldwell, 533 So. 2d at 415. There, the supreme court noted that Rule 4(c)(4)(A) was substantially the same as the statute in place before the adoption of the Mississippi Rules of Civil Procedure. Id. The Caldwell court found instructive and quoted favorably a pre-rules treatise’s comment that “[a]n affidavit to support process by publication must strictly comply with the statute and if it omit[s] averment of diligent inquiry it is insufficient.” Id. at 416 (quoting Griffith, Mississippi Chancery Practice , Bobbs-Merrill Company, Inc. 225-27 (1925)). And “where notice by publication is resorted to . . . as a basis for the jurisdiction of the court, in lieu of personal summons[,] all the requirements of the statute as to such notice must be strictly complied with[.]” Id. at 415 (emphasis added). Rule 4(c)(4)(A) is equally clear that the plaintiff must attest that he has performed a diligent inquiry before performing service by publication. It is no less true today that a sworn averment of diligent inquiry must be made to effectuate proper service by publication. “[Emphasis added]
  • “Rule 60(b) provides that the court may relieve a party from a final judgment if one of the stated conditions is met. One such condition exists where “the judgment is void.” M.R.C.P. 60(b)(4). Our supreme court has held that “[a] court must have . . . proper service of process . . . in order to enter a default judgment against a party. Otherwise, the default judgment is void.” McCain v. Dauzat, 791 So. 2d 839, 842 (¶7) (Miss. 2001) (internal citation omitted). Although “[t]he grant or denial of a 60(b) motion is generally within the discretion of the trial court, . . . [i]f the judgment is void, the trial court has no discretion.”

So here’s what you need to take away from this case:

First, if you’re going to obtain process by publication, you are going to have to comply with every technical requirement of MRCP 4(c)(4).  The rule is to be strictly construed.

Second, if you have not been able to discover the whereabouts of the other party for service of process, you must file your affidavit of diligent inquiry before you publish. Filing it later will not work.

Third, if you do not comply strictly with the rule, your judgment will be void and subject to being set aside. In other words, you client will have paid you for accomplishing nothing, and maybe even for putting him in a worse position. That usually makes a client peeved enough to sue somebody.

This is yet another in a long list of decisions that would have had an entirely different outcome if counsel had simply taken a few minutes to read the rule and do what it says.

WHERE IS THE BEST PLACE TO HIDE SOMETHING FROM A LAWYER? [HINT: IT’S IN THE RULES]

May 11, 2011 § 4 Comments

When you file an objection to a subpoena duces tecum, do you still need to produce the things sought under seal?  Do you need to track down a judge for an emergency hearing on the objection?  What do you need to do to protect your client after you file the objection?

Nothing.  MRCP 45(b) allows the objection to stop the process until the party issuing the subpoena takes further action.  It’s right there in the rule, in black and white.

This particular operation of MRCP 45(b) is the subject of an informative post by Anderson, who was apparently faced with the task of educating three other lawyers on the point.  Philip Thomas follows up on his blog with notes about a couple of other nuances of the same rule that you should know about.  I would repeat them here for you, but that would only make you less likely to look at the rule yourself, which would only punctuate Thomas’s point that most lawyers do not bother to read the rules.

Lawyers do not bother to read the rules. One of my pet peeves. Just the other day I had a lawyer in my office who proudly produced proof of certified mail service of process on a state department.  No one appeared for the defendant agency.  That may be, I pointed out, because MRCP 4(d)(5) requires process “Upon the State of Mississippi or any one of its departments, officers or institutions, by delivering a copy of the summons and complaint to the Attorney General of the State of Mississippi.”  Really?  Didn’t know that.

In my elementary school days, I had as a teacher a vicious nun who would rap you in the back of the head with a ruler if you didn’t tow the line.  One thing she made us do was to keep an open dictionary on the desk before us as we read a book.  Every time we encountered an unfamiliar word, we were required to look up the word or have inch-marks imbedded in our scalps.  At first I complied to avoid the pain.  Over time, however, I found myself doing it voluntarily, and by the time I reached high school age, I had amassed quite a vocabulary.

Maybe as a lawyer you should keep your rule book on your desk — open — and every time you have to issue process, or file a motion to compel, or file a counterclaim, or a 12(b)(6) motion, you can glance at the rule and refresh your recollection.  And if you really want to make an impression, you could rap yourself in the back of the head with a ruler every time you fail to do it.  Okay, I’m kidding about that last part.

Of course, my point applies to the statutes and cases, too.  How often do you glance back at the applicable statute before you file that petition to sell property in an estate, or close a guardianship?  How often do you go back and re-read exactly what it was the supreme court said in Riley v. Doerner before you try that custody modification, or Ferguson before you try that equitable distribution case?

I am convinced that the most significant difference between the good lawyers and the mediocre-to-poor ones is that the good lawyers take time to try to do it right, making sure they know the rules, statutes or cases behind what they are doing.  Which category will you place yourself in?

THAT CERTAIN “JE NE SAIS QUOI”

May 10, 2011 § 2 Comments

If you’ve ever tried a case with a LEP, you know just how excruciatingly difficult it can be without the right help.  Excuse me?  You don’t know what a LEP is?  Well, a LEP is neither contagious nor a Biblical outcast.  LEP is jargon for a person who has Limited English Proficiency.  That is, they have trouble speaking and understanding English, which, naturally, is quite an impediment in a Mississippi court.

In my experience practicing law, I tried a number of cases in Choctaw Tribal Court where every case involved one LEP, and sometimes a full cast of LEP’s.  You would ask a question and the designated interpreter would repeat the question in Choctaw to the witness.  The interpreter would listen studiously as the witness droned on in reply for several minutes, whereupon the interpreter would say earnestly, “He said no.”  I have always suspected that something had been lost in the translation.

I tried a memorably hilarious case once against a local attorney who later gave up the law to become rich as a stockbroker, probably in no small part due to this case.  My client was a more or less LEP European-trained, ethnic Chinese physician from Indonesia, and the opposing party was a completely LEP Chinese PhD student from Beijing who was studying at the University of X___g__n__c__ao (I never got that one straight, which I guess makes me a LCP).  She had come to this country to attempt a reconciliation with her husband, my client, but the attempted reconciliation unhappily failed, propelling them to court that day for a temporary hearing.  Our “translator” spoke and understood one particular strain of Chinese, and neither party spoke or understood the same strain.  To compound the comedy, it was the court reporter’s first, nervous day on the job — straight out of the Ole Miss court reporting school.  She almost broke down in tears when my client was asked where he graduated from medical school, and in his proudest Chinese-flavored German, he responded “Heinrich Heine Universität, Universitätsklinikum, Düsseldorf, Chermany.”  Who wouldn’t be proud of that?  We stumbled along until the trial’s dramatic crescendo, which occurred when the opposing party futiley tried repeatedly to describe how her piece-of-junk car would not work.  She finally blurted out in LEP exasperation, “Cah no vroom,” while twisting her right hand in a key-in-ignition fashion.  We all pretty much understood that, LEP or no LEP.  In fact, it was the most understandable thing any witness or interpreter said that day.

All of which brings me at last to my point. The Administrative Office of Courts (AOC) is seeking comments on proposed rules for use of interpreters in the courts.  The goal is state-wide credentialing of certified interpreters, with a roster available for all chancery, circuit, county, youth, municipal and justice courts, as well as grand juries.  You can access the announcement and links here.  As for the philosophy behind it, AOC said:

      “It is essential that any communication barrier be removed, as far as possible, so that these limited English proficiency (LEP) individuals are placed on equal footing with similarly situated persons for whom there is no such barrier. Interpreters are highly skilled professionals who fulfill an essential role in the administration of justice. As officers of the court, interpreters help assure that LEP individuals enjoy equal access to justice and that court proceedings and court support services function efficiently and effectively.”

Translation:  “We need qualified interpreters when we have persons in court who do not speak or understand English well.”

Based on my years in chancery court, I am wondering whether we need also to have interpreters for our own fellow citizens who do not speak any recognized foreign tongue, but are LEP’ed in their ability to speak or understand plain English.  But I guess that’s a project further down the road, to be tackled after we have dealt with the aliens in our midst.

SURREBUTTAL SURVIVES

April 28, 2011 § Leave a comment

Not long ago an attorney asked to be allowed surrebuttal.  I refused the request and quipped that surrebuttal had been deep-sixed by the MRCP.

I was wrong.  About the MRCP, anyway.

Actually, the MRCP does not even mention surrebuttal.  I do remember a discussion about surrebuttal in the various seminars we had around 1982-3 in preparation for the effective date of the “new” rules.  The common wisdom in those sessions was that the old practice in chancery for liberal surrebuttal was going away.  In the ancient, pre-rules days it was common practice to get trampled by an older lawyer who was invariably afforded one or even more “surrebuttals” that he used skillfully to repair whatever damage you had done or points you had scored in your examination of a witness.

After the new rules went into effect, that practice thankfully died out in our district, and every other one where I set foot, and since then one rarely hears requests for surrebuttal — as on that day in my court not long ago.

The matter is covered by UCCR 3.02, which provides in part:

 The examination of witnesses shall be limited to the direct examination, the cross-examination, and the redirect examination concerning matters brought out on cross-examination. Counsel for either party may be permitted, on request, to inquire about new matters pertinent to the issues which may have been inadvertently omitted. Opposing counsel may also inquire concerning the same matter.

There you have it.  It’s what we used to call surrebuttal.

Nowadays it arises mainly in situations where the court allows evidence in over the objection that the question is “outside the scope of rebuttal.”  In McGaughy v. State, 742 So2d 1091, 1094 (Miss. 1999), the court said, “Where there is doubt as to whether the evidence is properly case-in-chief or rebuttal evidence, the trial court should resolve the doubt in favor of reception in rebuttal if: (1) its reception will not consume so much additional time as to give an undue weight in practical probative force to the evidence so received in rebuttal, and (2) the opposite party would be substantially as well prepared to meet it by surrebuttal as if the testimony had been offered in chief, and (3) the opposite party upon request therefor is given the opportunity to reply by surrebuttal.”

It is error to permit the introduction of case-in-chief evidence in rebuttal where the evidence clearly should have been offered in the case in chief.  Hosford v. State, 525 So.2d 789, 791-92 (Miss. 1988).  But where it is not clear, introduction is within the discretion of the trial judge and will be reversed only if the decision is found to be arbitrary and capricious.  Smith at 1095.

After the court has allowed in the testimony, you may request further questioning under UCCR 3.02.

To preserve the point for appeal, you need to object timely when your opponent offers evidence in rebuttal that should have been offered in the case in chief.  If the court overrules the objection, ask immediately for surrebuttal or explain to the court why you will be unable to meet the evidence and how it will prejudice your client.

In the case in my court, I did not see that surrebuttal was necessary or desirable to meet anything offered in rebuttal, but it’s an interesting point that arises rarely in chancery court.

A POTPOURRI OF POINTS

April 21, 2011 § 2 Comments

Every now and then a case comes tumbling down from the appellate stratosphere that is remarkable not so much for the law of that particular case, but rather for the cascade of legal nuggets it unearths that one can mine and tuck away for future profitable use.  Such is Jernigan v. Young, handed down by the COA on April 19, 2011.

Samuel Jernigan and his wife Mae Bell were married in 1997.  Two years later, Samuel conveyed a .38-acre tract of land to Mae Bell by quitclaim deed.  He had filed for disability and was under the mistaken belief that if the land were no longer in his name his chances of a favorable ruling would improve.  Samuel claims that he and Mae Bell had an oral agreement that she would convey the property back to him.  There was no writing evidencing the alleged agreement.

In 1998, Mae Bell conveyed the property to her daughter Amy.  It is not disclosed in the record whether Samuel was aware of the transaction.

In 1999, Samuel and Mae Bell decided to get a divorce on the sole ground of irreconcilable differences.  They proceeded pro se using fill-in-the-blank forms.  In one of the blanks designated to identify what property would belong to each party appeared the handwritten notation “none.”

Four days after the divorce judgment was entered, Samuel filed a document styled “Withdrawal of Consent” and asked that the divorce be set aside.  He also filed a Complaint for Divorce and a pleading asking that the deed to Amy be set aisde, all of which were consolidated.  The case sat idle for seven years until Amy filed for summary judgment.  The chancellor granted summary judgment, which the COA affirmed.

Here are the nuggets from Judge Griffis’ opinion:

  • “[W]avering on whether a divorce should be entered may often occur and does not invalidate the divorce … What is important is that the agreement be validly expressed on the day that the chancellor is considering the issue.”  Sanford v. Sanford, 749 So.2d 353, 356 (Miss. App. 1999); Harvey v. Harvey, 918 So.2d 837, 839 (Miss. App. 2005).
  • Relief under MRCP 60(b) requires a showing of “exceptional circumstances.”  In re Dissolution of Marriage of De St. Germain, 977 So.2d 412, 416 (Miss. App. 2008).
  • No hearing or testimony is required to validate a divorce on the ground of irreconcilable differences.  MCA § 93-5-24(4).  In an irreconcilable differences divorce the parties “bargain on the premise that reaching an agreement will avoid the necessity of presenting proof at trial.”  Perkins v. Perkins, 737 So.2d 1256, 1263 (Miss. App. 2001).
  • Although MCA § 93-5-2(2) requires the chancellor to determine whether the parties’ agreement in an irreconcilable differences divorce is “adequate and sufficient,” that is not a “magic phrase,” and its absence in the divorce judgment approving the agreement is not a ground for reversal.  Cobb v. Cobb, 29 So.3d 145, 149 (Miss. App. 2010).
  • It is not in and of itself reversible error for the chancellor not to require financial disclosure via UCCR 8.05 financial statements in an irreconcilable differences divorce.  St. Germain at 417-418.  Where the lack of disclosure allowed a spouse to conceal major assets, however, it could amount to reversible error.  Kalman v. Kalman, 905 So.2d 760, 764 (Miss. App. 2004).
  • An inter vivos deed of gift need not be supported by separate consideration.  Holmes v. O’Bryant, 741 So.2d 366, 370 (Miss. App. 1999).  “A man of sound mind may execute a will or deed from any sort of motive satisfactory to him, whether that motive be love, affection, gratitude, partiality, prejudice, or even whim or caprice.”  Herrington v. Herrington, 232 Miss. 244. 250-251, 98 So. 2d 646, 649 (1957).
  • MCA § 91-9-1 requires that any trust in land must be in writing signed by the person declaring or creating the trust, or it is void.  The court may impose a constructive or resulting trust on land in the absence of a written agreement, provided that certain criteria are present.  Simmons v. Simmons, 724 So.2d 1054, 1057 (Miss. App. 1998).

And the most important point of all:  You get exactly what you pay for when you get a do-it-yourself divorce without benefit of legal counsel.

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