Rules | The Better Chancery Practice Blog

RULE 8.05, AMENDED

November 5, 2010 § Leave a comment

The Supreme Court yesterday entered an order amending Uniform Chancery Court Rule 8.05, in part. You can read the amended rule here.

In essence, the amended rule keeps in effect the financial statement with which we are all familiar, and adds a more detailed statement as an option to be used, “By agreement of the parties, or on motion and by order of the Court, or on the Court’s own motion … ”

Check out the more detailed form. There will likely be cases where it will be more suitable for your use than the original form.

MEDICAL PRIVILEGE IN CUSTODY-RELATED ACTIONS

October 26, 2010 § Leave a comment

Rule 503 of the Mississipi Rules of Evidence (MRE) sets out the familiar physician- and psychotherapist-patient privilege that has long been a part of our law.

Subsection (d) (4) was amended in 2004 to remove the privilege in certain proceedings related to child custody. The rule states:

There is no privilege under this rule for communications, including past and current records of whatever nature, regarding a party’s physical, mental, or emotional health or drug or alcohol condition relevant to child custody, visitation, adoption, or termination of parental rights. Upon a hearing in chambers, a judge, in the exercise of discretion, may order release of such records relevant to the custody, visitation, adoption, or termination action. The court may order the records sealed.

The hearing in chambers is to determine whether the documents would be relevant to one of the listed proceedings. The comment to the rule sets out “some factors the court should consider:

Whether the treatment was recent enough to be relevant;
Whether substantive independent evidence of serious impairment exists;
Whether sufficient evidence is available elsewhere;
Whether court-ordered evaluations are an inadequate substitute; and
Whether, given the severity of the alleged disorder, communications made in the course of treatment are likely to be relevant.

To me, it is significant that the comment describes the foregoing as “some” of the factors that the trial court should consider. In my opinion, the court should also consider what is the relief sought, the severity of the condition and what its impact on the child could be, and whether the information includes names of witnesses and others who should be interviewed by the guardian ad litem, if any. The comment factors seem weighted in favor of the patient’s privacy, but I believe the repeal of the privilege in cases such as those listed is a clear indication that the policy is that the privilege should yield to the search for all information that will help inform the court as to what is in the best interest of the child.

In this judge’s opinion, the court should err on the side of making the information available for the reason that it may lead to the discovery of additional information that may bear on the best interest of the child.

YET ANOTHER REASON TO TAKE EXTRA CARE WITH 8.05’S

October 14, 2010 § 4 Comments

In the case of Trim v. Trim, 33 So.3d 471 (Miss. 2010), the Mississippi Supreme Court held that “the intentional filing of a substantially false Rule 8.05 statement is misconduct that rises above mere nondisclosure of material facts to an adverse party,” and constitutes fraud upon the court.

So what is the significance of the Trim case for everyday practitioners?

Let’s say that your client isn’t deliriously happy with the outcome of her equitable distribution case, but she accepts it without an appeal. Ten months later she comes in to your office mad as a hornet with sheaves of paperwork that prove conclusively that her ex substantially understated on his 8.05 the value of financial assets that he controlled, and the gain to your client could be in the hundreds of thousands of dollars. Aha! You think, we have the sorry so-and-so right by the [indelicate word deleted]!

But wait. How are you going to get this before the court? MRCP Rule 59 relief expired 10 days after the judgment was entered, and the appeal time ran 30 days after entry. MRCP Rule 60 actions to set aside a judgment for fraud have to be brought within six months of the date of the judgment.

That’s where Trim comes in. By finding substantial misrepresentation on the 8.05 to be a fraud on the court, as opposed to fraud on the opposing party, the Supreme Court essentially ruled that there is no time limit to bringing an action to aside an action based on 8.05 fraud. That’s because MRCP Rule 60 expressly states: “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.”

Trim has ramifications for lawyers in Chancery. If you are in the habit of accepting your client’s 8.05 at face value without going over it with him or her, and without questioning behind it, you may be leaving your client open to an action to set aside that divorce judgment you thought you had laid to rest long ago. The client may well question why you never went over the statement with him and counseled him about what to include and what not to include. “My lawyer never told me that I had to list those three securities accounts; in fact, he never talked with me at all about what to include on the form.”

In case you think this is the kind of thing that happens to somebody else somewhere else, think again. Only this year, I set aside a divorce that was nearly two years old for substantial misrepresentation of financial assets that amounted to a fraud on the court. It can happen to you.

BETTER CHANCERY PRACTICE FAQ

October 8, 2010 § 2 Comments

My 8.05 financial statements stink. How can I improve them?

Here are Ten Tips for More Effective Rule 8.05 Financial Statements.

Is my estate ready to close?

Check out this Checklist for Closing an Estate.

I think I need to file a habeas action. Any tips?

This Habeas Corpus Step by Step should help.

One more time: what are those child custody factors I need to prove at an upcoming trial?

The Albright factors are what you’re looking for.

Help! We need to sell some real property in an estate, and I don’t know where to start?

How to Sell Real Property in an Estate may be just what you need.

I’ve been asked to handle a minor’s settlement for a Jackson firm, and I’ve never done it before. What do I need to do?

This Outline for Handling a Minor’s Settlement will get you started.

My mail has an MRCP 41(d) notice in it this morning. I remember you said something about it, but I don’t have time to look for it. Can you remind me what I am supposed to do?

<Sigh> Here’s a post on what to do When Rule 41(d) Comes Knocking at Your Door.

I need to prove the tax effects of alimony, but my client can’t afford to hire a CPA to come testify. Any ideas on what I should do?

Try looking at Proving Tax Effects of Alimony.

My Chancery Judge is really nitpicky. How can I draft my adoption Complaint to satisfy him?

Are you talking about me? Whatever. Here is a post on pleading Jurisdiction for Adoption.

Every time I go to court in Jackson, the lawyers there snicker about my countryfied attire. Any suggestions? I cannot afford another $100 contempt citation for punching out a lawyer in the courtroom.

You probably need to be charging more so that you can afford either a better wardrobe or more contempt fines. Until you do, try reading “High Waters” and Burlap Suits. It won’t change anything, but it may help you to feel better.

JUDGMENTS: PARTIAL AND FINAL

October 7, 2010 § 4 Comments

After a few weeks, the judge has issued his opinion in that thorny divorce trial. He granted your client’s wife a divorce and gave her custody and child support, but ordered that you and the other attorney produce appraisals before he will adjudicate the equitable distribution and the alimony claim. Your client is hopping mad at the outcome and demands that you appeal the judge’s ruling immediately. Can you?

MRCP 54(b) provides that the when there are multiple claims for relief or multiple parties, the court may order final relief 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 entry of the judgment.” If the court does not so direct, then any order issued that adjudicates fewer than all of the claims or rights of fewer than all of the parties, no matter whether it is entitled as a judgment, is not final, and is subject to revision at any time.

So what does this mean? There are several ramifications. One is that if the partial judgment or order does not specifically direct that it is final, you may not appeal from it until the entire action is finalized. If it does include the required finality language and you do not file a timely appeal, you may find yourself shut out from an appeal on the matters addressed in that order. Another ramification of non-finality is that the Chancellor may change it at any time, even beyond ten days after its date, because the provision of MRCP 59 that allows the Chancellor to alter his judgment within ten days of entry applies exclusively to final, appealable judgments.

And what exactly is a judgment, anyway? MRCP 54(a) states that “‘Judgment’ as used in these rules [MRCP] includes a final decree and any order from which an appeal lies.” Any interlocutory adjudication is an order, and not a judgment; thus, e.g., Temporary Order, Order Compelling Discovery, Scheduling Order, Order Deeming Requests for Admission as Admitted.

MRCP RULE 77(d) MEANS WHAT IT SAYS

October 4, 2010 § Leave a comment

We are talking about judgments this week, a timely subject in view of the Supreme Court’s decision in In Re: Barbara Dunn, Hinds County Circuit Clerk, decided last Thursday.

The Dunn case arises out of two other interlocutory appeals in which the defendants were adversely affected by judgments, but were not given notice of entry of those judgments as required by MRCP Rule 77(d), which requires the Circuit and Chancery Clerk to serve notice of entry of orders on all parties not in default. The specific language of the rule is as follows:

(d) Notice of Orders or Judgments. Immediately upon the entry of an order or judgment the clek shall serve a notice of the entry in the manner provided for in Rule 5 upon each party who is not in default for failure to appear, and shall make a note in the docket of the service. Any party may in addition serve a notice of such entry in the manner provided in Rule 5 for service of papers. Lack of notice of the entry by the clerk does not affect the time for appeal, nor relieve, nor authorize the court to relieve, a party for failure to appeal, within the time allowed, except as permitted by the Mississippi Rules of Appellate Procedure.

In Dunn, the clerk failed to give notice that the trial judge had ruled on motions for summary judgment.

As the Supreme court pointed out, the omission was serious and impacted substantive and procedural rights. The opinion stated:

The seriousness of this omission is such that this Court should not, and it will not, regard it as an innocuous clerical error. The notices required by Rule 77(d) are mandatory, and they are indispensable to the right of parties to receive timely information from our state trial courts concerning significant judicial actions in civil matters in litigation.

Since this was Ms. Dunn’s third appearance before the Supreme Court on the same issue, the court assessed her with a $5,000 fine.

In my experience as a practitioner and as a judge, I know of only one district where Rule 77(d) notices are routinely sent out, and it is not the Twelfth District. On one occasion some years ago, I learned by pure happenstance that the court had entered a final judgment in my case 24 days before, leaving me only six days to confer with my client and decide whether we would appeal.

MRAP 4(h) gives some relief, providing as it does that the trial court may reopen and extend the time for appeal on a finding that a party entitled to MRCP 77(d) notice did not receive it. The MRAP rule, however, does have time parameters within which one must operate.

The court’s strict stance on application of procedural rules in this case is reminiscent of the court’s ruling in Illinois Central railroad Co. v. Moore, about which I previously posted here. It would appear that if your case on appeal turns on a procedural issue, you will have the uphill climb with this court if you did not dot every “i” and cross every “t.”

Some intriguing questions remain in the aftermath of Dunn. Are routine procedural orders and agreed orders included? In Rule 81 cases, there is no default since no answer is required; what is the rule’s application to Rule 81 matters? What are the practical ramifications for practitioners, since the rule explicitly does not relieve any party from operation of an order or judgment for failure of a clerk to give notice of entry?

As a practitioner, when you have a particularly important order or judgment, you should avail yourself of that provision in Rule 77 whereby you can give notice yourself and have it noted on the docket.

You can read more about the case at Philip Thomas’s blog MS Litigation Review & Commentary.

ONLY 3 MORE DAYS TO COMMENT ON MANDATORY PRO BONO

September 28, 2010 § Leave a comment

From the Mississippi Bar’s BAR BRIEFS …

October 1 Is Deadline to Submit Comments on Proposed Mandatory Pro Bono Rule

The Mississippi Supreme Court Rules Committee on the Legal Profession seeks comments on two proposed rule changes. The first proposed change would amend Rule 6.1 of the Mississippi Rules of Professional Conduct. As proposed the change would make pro bono service mandatory, and would increase the fee to be submitted in lieu of performance from $200 to $500. The second proposed rule change is to Rule 46 of the Mississippi Rules of Appellate Procedure. The proposed change would increase pro hac vice admissions fees from $200 to $500. These proposed rule changes may be found on the Supreme Court website at http://www.mssc.state.ms.us/rules/rulesforcomment/rulesforcomment.html . The deadline for filing comments is October 1, 2010. Comments are encouraged and should be filed with the Clerk of the Supreme Court, Gartin Justice Building, P. O. Box 249, Jackson, MS 39205-0249.

* * * * * *

I have read reports that only around 100 lawyers, out of 5,000 or so members of the Mississippi Bar have submitted comments. That’s pretty pathetic … and apathetic. This is a proposal that will impact your practice. At the risk of being boringly repetitious, I beg you to submit your comments. Just click on the link and fire away. You don’t even need to spend a postage stamp.

VOUCHERS YOU CAN VOUCH FOR

September 23, 2010 § 6 Comments

by Jane Stroble Miller, Senior Staff Attorney for the Twelfth Chancery Court District

Shortly after graduating from law school I was confronted with a baffling legal question. An older and more experienced attorney was attempting to do something that Mississippi statutes and case law clearly stated he could not do. In my naiveté I assumed he knew of a statute or case about which I was ignorant that allowed him to act as he did. After several hours of exhaustive research I called a former professor and mentor, the Honorable William Champion. On hearing my dilemma, he chuckled and informed me that I had just encountered an attorney who had been practicing law for so long that he had lost touch with what the law was.

Recently I again encountered this phenomenon in my duty as staff attorney in monitoring probate matters. One of my tasks is to try to explain to attorneys why the chancellor feels that their accountings do not meet the requirements of both the statutes and the Uniform Chancery Court Rules (UCCR). In a meeting with an older attorney, I pointed out that he had failed to attach vouchers to his accounting. He insisted that he could not provide the necessary documentation “because the banks no longer returned the original canceled checks,” and remained firmly stuck to that position. I realized that I would have to do some research to arrive at a definitive answer.

Section 91-7-277, MCA, requires that the annual account show ” … disbursements, every item of which and the amount thereof to be distinctly stated and supported by legal voucher …” Sections 91-7-279 and 93-13-71, MCA, prescribe the form for vouchers and provide that the account shall be rejected by the clerk unless the vouchers are in the proper form. The only exception to the voucher requirement is when the guardian is an approved financial institution.

Over time, attorneys began using original canceled checks as “legal vouchers,” and the courts recognized them as such. Although neither the statutes nor case law identify canceled checks as “legal vouchers,” there is authority in UCCR. In fact, UCCR 6.04 does specifically refer to “a receipt or cancelled bank check …” as a voucher.

The problem with canceled checks as vouchers, however, is that if you stop at the check, you have omitted the most important, and meaningful, part of Rule 6.04. The sentence of the Rule dealing with vouchers, in its entirety is as follows: “Every such voucher shall consist of a receipt or cancelled bank check showing to whom and for what purpose the money was paid.” [Emphasis added]

In other words, if the canceled check fulfills the function of showing “to whom and for what purpose the money was paid,” then it is a proper voucher within the meaning of the Rule. If the canceled check does not do that job, it is not an acceptable legal voucher. Put even plainer: if the canceled check would not otherwise be acceptable as a receipt, it simply is not a legal voucher.

UCCR Rule 6.06 (Lost Vouchers) reinforces my conclusions. It states that if the original voucher is lost or destroyed, a duplicate or ” … receipt from the person or corporation to whom the money was paid or the property was delivered … ” may be accepted by the court. Again, the function of a voucher is to document actual payment, the recipient and the purpose.

I even looked at Black’s Law Dictionary, which defines voucher as ” … an account, receipt, or acquittance, that shows on its face the fact, authority, and purpose of the disbursement.”

Given no hard and fast definition of a “legal voucher,” I formulated the following requirements for a voucher to be sufficient to comply with our laws:

A voucher must first and foremost be legal evidence that the money was disbursed for the purpose for which it is authorised or allowed.
It must be in writing or printed and show the payee, amount and date, and services or goods for which the disbursement was made.
A check made out to “cash” , even an original canceled check is not a “legal voucher.”

Canceled checks, whether copies or original, really only prove that a payee was paid a certain amount of money. In some circumstances, canceled checks may not be adequate proof. For instance, when a court has authorized the purchase of a computer for a minor ward, a canceled check to Best Buy or Sam’s Club does not prove the money was disbursed for a computer. The check could have just as likely been used to purchase a big screen television or a new set of tires for the guardian’s car. The same holds true for many canceled checks for clothing or personal items. Since vouchers are supposed to be “evidence,” the better practice is for an attorney to have printed receipts that match the date and amount of a canceled check. The guardian should provide the attorney with register tapes, tags or price stickers from the items purchased to prove that the disbursements were actually made for the ward and not for another party or purpose.

The best yardstick that both a judge and attorney could employ in determining the adequacy of a voucher would be to ask whether or not the proof would be of such a nature and sufficiency to be admissible as evidence at a trial and contains all the information necessary to convince the average person that the disbursement was made for what the guardian claimed it was made.

It took me a little time, digging and thought to arrive at my conclusions, but I had Professor Champion’s wisdom as a starting point and a reminder that sometimes we can practice law so long that we lose touch with what the law is.

TRO’S THAT WORK

September 22, 2010 § 1 Comment

There are two types of temporary restraining orders (TRO’s): The ones that work and the ones that fail. Since your client is paying you to get a TRO that works, you might want to read on about how to be successful in getting this relief.

A TRO usually arises where the plaintiff claims he is entitled to more extensive injunctive relief, but needs immediate intervention of the court to prevent irreparable injury until the full claim for injunction can be heard. A TRO is, simply put, a temporary injunction issued in exceptional circumstances without notice to the opposing party or his attorney, to expire no later than ten days after its entry by the court. It is intended to be an action to hold the parties in place until the court can have a full hearing on more comprehensive, extended injunctive relief.

The procedure to obtain a TRO is set out in Rule 65, MRCP. Everything you need to know about a successful TRO is there. So pause a moment here and Read Rule 65 all the way through. It’s not long and will take you no more than four and one-quarter minutes. I’ll wait. <humming to myself; checking my e-mail>

Okay, now that you’ve read the rule do you see now why you were turned down the last time you tried to get a TRO? Yep, I thought so.

The rule is clear that if you want an injunction issued without notice, you must present a pleading to the court that meets the following requirements:

It must recite specific facts by affidavit or verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the opposing party or his attorney may be heard in opposition; and
The applicant’s attorney certfies in writing what efforts, if any, have been made to give notice, and reasons why notice should not be required.

Some scenarios that will fail:

You file the complaint on behalf of your client. The rule requires a verified complaint or affidavit, either of which would be required to be on personal knowledge of the underlying facts by the person seeking the relief.
The complaint includes only conclusory statements and no facts. The rule requires “specific facts” that support the relief sought.
The harm that plaintiff seeks to avoid will likely occur in 30 days, and there is no explanation why notice for a hearing can not be given within that time.

Some judges require the personal appearance of the plaintiff or affiant to testify as to the facts set out in the complaint or affidavit. I take the position that, since the application is required to be verified or supported by affidavit, testimony in person is not required at this stage; the only inquiry by the court is whether the application meets the requirements of the rule.

When the TRO is entered, it is endorsed with the date and hour of issuance and is entered of record “forthwith.” The order must define the injury and why it is adjudged to be irreparable, and state why it was granted without notice. The order includes on its face the expiration date.

A TRO is effective for not longer than ten days, except in domestic relations cases to which the ten-day limitation does not apply. The court may “for good cause” extend the effective date of the TRO “for a like period.” That means that if the original TRO were effective for 5 days, the court may extend it another five, and a TRO originally effective for 10 days could be extended for 10 more days. The court may also extend the TRO if the party against whom the order is entered consents to the extension. In any extension, the reasons for the extension must be stated in the order.

The TRO must state in reasonable detail, and not by mere reference to the pleadings, the act or acts sought to be restrained. It is binding only upon the parties to the action and their officers, agents, servants, employees and attorneys, “and upon those persons acting in concert or participation with them who receive actual notice of the order by personal service or otherwise.”

When the TRO is entered, a hearing date and time is set for a hearing on the preliminary injunction. Scheduling of the hearing takes precedence over all other matters except “older matters of the same character.”

At hearing, the party who obtained the order proceeds first, and if the proponent fails to appear, the court shall dissolve the TRO.

The party against whom the order is issued may appear and request dissolution of the TRO or modification on two days’ notice to the obtaining party, or on such shorter notice as the court may prescribe. In such event, the court will hear the motion “as expeditiously as the ends of justice require.”

Except in domestice relations cases, a TRO or preliminary injunction may issue only on giving of security by the applicant in the amount that the court may direct, for the payment of costs, damages and reasonable attorney’s fees that may be suffered by any party later deemed to have been wrongfully restrained. No security is required of the State of Mississippi or its officers or agencies, and the court may waive security in a domestic relations case. In all cases where security is required, the provisions of Rule 65.1, MRCP, apply.

The order issuing the injunction must set forth the reasons for its issuance and describe in detail the act or actions sought to be restrained. It is binding only upon the parties to the action and their officers, agents, servants, employees and attorneys, “and upon those persons acting in concert or participation with them who receive actual notice of the order by personal service or otherwise.”

In the case of both a TRO and an injunction, if a reasonable person can not ascertain from the four corners of the document exactly what conduct is enjoined, the order should be set aside on appeal.

Practice Tip: Before you file an application for a TRO, read Rule 65 carefully. The requirements are technical and precise, and you will not succeed in having your TRO issued if you do not comply with the express requirements of the rule. Include in your pleading for a TRO a request for a preliminary injunction; otherwise, the other party may simply let your 10-day relief expire, and you will be back at the starting line.

GETTING DONE WHAT IS ORDERED TO BE DONE

September 9, 2010 § Leave a comment

The court ordered the opposing party to convey her interest in the homestead to your client, but it’s been a month and you still don’t have the executed deed. Now your client is calling about the riding lawn mower and big-screen tv he was supposed to get. His ex claims she doesn’t know anything about them, but he sees them at her place every time he goes to pick up the children for visitation.

The attorney on the other side has given up in exasperation. She is not having any success in getting her client to cooperate, and she asks you to quit calling her; she considers her representation at an end.

What to do?

Of course, you can file a contempt action, but there are a couple of other avenues.

Rule 70(a), MRCP, provides that you can ask the court to appoint some other person, the Chancery Clerk for example, to execute and deliver that deed. And any cost of getting it done is at the cost of the recalcitrant party. The resulting deed with the court’s order will have “like effect as if done by the party.”

Better yet, next time get the court to include language in the judgment divesting title from the other party and into your client, as provided in Rule 70(b), MRCP. That would eliminate the need to get a deed signed, and, after all, the purpose and effect of the deed is to divest title from the other party into your client. The rule says that “such judgment has the effect of a conveyance executed in due form of law.”

As for the riding lawn mower and tv, Rule 70(c), MRCP may help you out. It states that a certified copy of the judgment or court order shall be sufficient authprity for the sheriff in the county where the property is located to seize it and deliver it to your client. Only problem here is that most attorneys do not put enough information into the record for a sheriff, much less a judge, to determine whether the riding lawn mower and tv your client says he is to seize are really the ones subject to being seized. What is the sheriff to do when the ex-wife claims that this riding lawn mower is her separate property purchased since the separation, and that she does not know where the marital mower is? Does the sheriff seize it and hope that she is lying or that his liability insurance will pay any damages? Or does he hand your client back his papers, shrug his shoulders, and return to his patrol car for the next job at hand? I would choose the latter, if I were the sheriff. Best practice is to be sure there is enough information, such as make, model, color, serial number and any other identifying information you can get in the record and the judgment to back up your client’s claim to possession.

Where Am I?