Rules | The Better Chancery Practice Blog

Records of Regularly Conducted Activity

October 12, 2015 § 3 Comments

MRE 803(6) is an important exception to the hearsay rule. It allows you to admit into evidence certain documents even though they are in essence hearsay. The rule reads this way:

Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or self-authenticated pursuant to Rule 902(11), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

The document is admissible (1) if the information recorded was by a person with knowledge, and (2) the document was kept in the course of regular business activity, and (3) keeping such information in that form was the regular practice of the entity.

It is not necessary for every person who participated in compiling the data to come to court to testify about it to make it admissible. It can be authenticated by a “custodian or other qualified witness,” or it can be self-authenticated, as we will discuss below.

The court will determine whether the source and method of preparation are trustworthy enough to support admissibility.

Self-authentication is covered in MRE 902. To put it in simple terms, self-authentication means either that

The document itself bears insignia or signs of authenticity so that a custodian or other person is not necessary to identify it and establish its authenticity. Some examples are set out in the rule, and you can expand on those to come up with other categories of documents to authenticate in this fashion.
The document is accompanied by a certificate of authenticity as provided in MRE 902(11). This category is a little more ticklish to accomplish, so we will look at it in greater detail.

MRE 902(11) provides as follows:

(A) The records of a regularly conducted activity, within the scope of Rule 803(6), about which a certificate of the custodian or other qualified witness shows (i) the first hand knowledge of that person about the making, maintenance and storage of the records; (ii) evidence that the records are authentic as required by Rule 901(a) and comply with Article X; and (iii) that the records were (a) made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (b) kept in the course of the regularly conducted activity; and (c) made by the regularly conducted activity as a regular practice. Such records are not self-authenticating if the sources of
information or the method or circumstances of preparation indicate lack of trustworthiness.

(B) As used in this subsection, “certificate” means, (i) with respect to a domestic record, a written declaration under oath or attestation subject to the penalty of perjury; and, (ii) with respect to records maintained or located in a foreign country, a written declaration signed in a foreign country which, if falsely made, would subject the maker to criminal penalty under the laws of that country. A certificate relating to a foreign record must be accompanied by a final certification as to the genuineness of the signature and the position in the regularly conducted activity of the executing individual as is required for certification of Foreign Public Documents by subsection (3) of this rule.

So to comply with this part of MRE 902(11) you must file an affidavit under criminal penalty of perjury that the affiant swears that all of the requirements of MRE 803(6) are satisfied, and that the affiant is a person who could establish authenticity if he or she were to testify. You should track the language in both paragraphs in drafting your affidavit. Note that if the affidavit is by a person in a foreign country you must comply with MRE 902(3).

Now that you have done all that, there is more that you need to do to make the document(s) admissible at trial. MRE 902(11)(C) is critical:

(C) (i) Records so certified will be self-authenticating only if the proponent gives notice to adverse parties of the intent to offer the records as self-authenticating under this rule and provides a copy of the records and of the authenticating certificate. Such notice must be given sufficiently in advance of the trial or hearing at which they will be offered to provide the adverse party a fair opportunity to consider the offer and state any objections. (ii) Objections will be waived unless, within fifteen days after receiving the notice, the objector serves written specific objections or obtains agreement of the proponent or moves the court to enlarge the time. (iii) The proponent will be responsible for scheduling a hearing on any objections and the court should hear and decide such objections before the trial or hearing at which they will be offered. If the court cannot rule on the objections before the trial or hearing, the records will not be self-authenticating. (iv) If in a civil case, on motion by the proponent after the trial
or hearing, the court determines that the objections raised no genuine questions and were made without arguable good cause, the expenses incurred by the proponent in presenting the evidence necessary to secure admission of the records shall be assessed against the objecting party and attorney.

You must give timely notice to your opponent of your intent to offer the records under this rule, and if the opponent objects, you must set a hearing for the court to resolve the issue. Note the language of the rule: “Records so certified will be self-authenticating only if the proponent gives notice …” No notice = no self-authentication.

Sometimes lawyers agree on a handshake to let the document(s) in. That’s okay when it works, but every lawyer has a tale of woe about an opponent who said one thing in the halls of the courthouse two weeks ago, and then does not quite remember it the same way on the floor of the courtroom at trial. Better practice is to file that notice with a certificate of service. At a minimum, you should document the notice via email or regular mail. Any documentation is better than none, but some forms are better than others.

MRE 902 is a marvelous road map for how to get documents into evidence without a sponsoring witness, but you’d better follow it in every detail if you wish to succeed.

When to Appeal from Denial of a Probated Claim

September 28, 2015 § Leave a comment

We should all know by now that a judgment that disposes of fewer than all of the contested issues in a case, or as to fewer than all of the parties, is not final and appealable, per MRCP 54(b).

So, consider this case …

You represent a creditor who has timely probated a claim against an estate. The executor files a contest to your client’s claim and notices it for hearing. At the close of the hearing the chancellor renders a bench opinion denying your client’s claim and enters a judgment to that effect. Now your client wants to appeal.

… what is your appeal time?

On one hand, the judgment denying the probated claim obviously disposes of fewer than all of the contested issues in the case, and fewer than all of the other parties are finally affected (i.e., other creditors, heirs or beneficiaries, etc.). So is an appeal barred by R54(b)?

On the other hand, your client’s involvement in the case is most assuredly concluded. The estate will proceed on its merry way without your client’s further involvement. And it could take months or even years for the court to wind up the estate and enter a final judgment closing it. Why should your client have to wait.

The question did arise in the recent COA case, Estate of Holmes: Holmes v. Turner, decided September 1, 2015. In that case, Becky Turner and her nephew, Brett Holmes, were in a dispute over a claim that Brett probated against the estate of Frances B. Holmes. The chancellor denied the claim and Brett appealed. Becky asserted on appeal that the court’s order or judgment overruling the claim was not a final, appealable judgment, and that, therefore, Brett’s appeal was untimely. In footnote 3, at ¶16, Justice Maxwell, writing for the court, disagreed with Becky’s position:

Becky asserts this order was not final and appealable, comparing it to the interlocutory order in the lawsuit-within-an-estate case In re Estate of Drake, 134 So. 3d 328 (Miss. Ct. App. 2013). But in contrast to the order in that case, the chancellor’s order here finally resolved the probate claim by Jimmy’s estate that Brett lodged against Frances’s estate. Further, both the Mississippi Supreme Court and this court have exercised appellate jurisdiction over timely appeals from orders either allowing or disallowing claims against still-open estates. E.g., In re Estate of Petrick, 635 So. 2d 1389 (Miss. 1994); In re Estate of Ladner, 911 So. 2d 673 (Miss. Ct. App. 2005).

That sort of obliquely says that the time to appeal is within thirty days of the order or judgment denying the claim, but it does not come right out and say so.

There actually is a case, however, that directly answers the question. In Estate of Philyaw: Braxton v. Johnson, 514 So.2d 1232, 1236-7 (Miss. 1987), Braxton contested Johnson’s claim. Johnson prevailed, and Braxton did not immediately file an appeal, but rather waited until the judgment closing the estate was entered. The MSSC said this:

The question therefore is whether the time for an appeal for an administrator or executor unhappy with a decree allowing a contested claim runs from the date of such decree or from the date of the decree finally closing the estate. Darryl has not seen fit to cite this Court with any apposite authority supporting his response to Johnson.

We agree with Johnson, that the time for any appeal from a chancellor’s decision on the claim started on the date of the decree allowing it.

Miss. Code Ann. § 91-7-165 is the statutory procedure for contested creditors’ claims. Miss. Code Ann. § 11-51-9 recognizes final decrees include “matters testamentary and of administration …” Miss. Code Ann. § 11-51-99 specifically authorizes executors or administrators to appeal from any decree affecting them in their fiduciary capacity.

While the specific jurisdictional question raised by Johnson has never been addressed by this Court, it appears that appeals by administrators or executors unhappy with a decree allowing a contested claim have generally been taken from that decree. See: McKellar’s Estate v. Brown, 404 So.2d 550 (Miss.1981); Wooley v. Wooley, 194 Miss. 751, 12 So.2d 539 (1943); Ellis v. Berry, 145 Miss. 652, 110 So. 211 (1926).

That the administrator or executor’s time to appeal begins to run from date of the decree allowing the claim is supported by most of the authorities from other states which have addressed this question. See: Parsons v. M.E. McCabe & Son, 127 Kan. 847, 275 P. 173 (1929); In re Swanson’s Estate, 239 Iowa 294, 31 N.W.2d 385 (1948); In re Hildreth’s Estate, 113 Vt. 26, 28 A.2d 633 (1942).

There is, however, some contrary authority. See: In re Naegely’s Estate, 31 Cal.App.2d 470, 88 P.2d 715 (1939); In re Gooder’s Estate, 68 S.D. 415, 3 N.W.2d 478 (1942); In re Allen’s Estate, 175 Wash. 65, 26 P.2d 396 (1933).

We find the better view is that time for an appeal should run from the date of the decree on the claim.

The efficient and orderly administration of estates and payment of all just debts without unjustified delay compels our conclusion. To permit an administrator to wait until an estate is otherwise ready for closing before deciding whether or not to appeal a decree allowing a claim would countenance outrageous postponements in paying the indebtednesses due by the estate. Moreover, an administrator cannot close an estate until there has been a final adjudication as to precisely what debtors are due by the estate, which he has a duty to pay. See: Miss.Code Ann. § 91-7-291; Fidelity & Deposit Co. v. Doughtry, 181 Miss. 586, 179 So. 846 (1938); Walker v. Woods, 166 Miss. 471, 148 So. 354 (1933).

The time for taking an appeal from the November 8, 1982, decree having long since expired, this Court is without jurisdiction to hear any defense to Johnson’s claim against the Philyaw estate. Miss. Code Ann. § 11-51-5.

Philyaw deals with the time for an administrator or executor to appeal from a ruling adverse to the estate, but there is no logical reason why the same rationale should not apply to a creditor appealing from an adverse ruling. It’s that goose-and-gander thing.

SOL, the PSA, and Rule 81

September 16, 2015 § 3 Comments

I posted here not too long ago about the need to assert a defense of statute of limitations (SOL), saying that “It is not an automatic bar to the action, but rather a defense that must be affirmatively pled.”

That quote goes a tad too far. Although MRCP 12 specifically requires that SOL be pled as an affirmative defense, R 12(b) goes on to say that, “If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief.” Of course, matters brought under R 81 do not require an answer, so no affirmative defensive pleading is required, and the SOL defense may be asserted at trial.

That is what happened in DHS v. Guidry, 830 So.2d 628, 634 (Miss. 2002). In a contempt action brought under R 81, Jackie Guidry did file an answer to the R 81 petition, but it did not include a SOL defense. Jackie instead raised the defense of SOL for the first time at trial, and DHS objected on the basis that no pleading asserting the defense had been filed. The chancellor ruled in Jackie’s favor, and DHS appealed. The MSSC affirmed:

¶ 19. DHS next argues Jackie waived his defense of statute of limitations when he failed to raise the defense in his answer. Jackie contends that though he did file responsive pleadings, no answer was required under Miss. R. Civ. P. 12(b). Because no answer was required, Jackie argues his affirmative defenses could have been properly pled at any time.

¶ 20. An affirmative defense, such as a statute of limitations, is waived if not raised by a pleading. Miss. R. Civ. P. 12(b). However, this rule only applies when a responsive pleading is required. Rule 12(b) states in pertinent part:

If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief….

Pursuant to Miss. R. Civ. P. 81(d)(2) & (4), no answer is required in a petition for contempt based on unpaid child support. Nevertheless, Jackie’s counsel did file an answer, but did not raise the affirmative defense of statute of limitations. However, at the hearing, Jackie made an ore tenus motion to dismiss the petition as being barred by the statute of limitations.

¶ 21. In a recent case handed down by the court of appeals, that court held there was no waiver for failure to plead an affirmative defense when no pleading was required. Brown v. Brown, 822 So.2d 1119 (Miss.Ct.App.2002). The facts of Brown are remarkably similar to the case sub judice. The Browns were divorced in 1979, and Mr. Brown was ordered to pay child support. Id. at 1120. In February 2000, Mrs. Brown filed a motion for contempt alleging Mr. Brown had failed to pay any child support since the 1979 decree. Id. The chancellor awarded Mrs. Brown $54,697.66 in unpaid child support. Id. at 1121.

¶ 22. The Court of Appeals held that because no answer was required to the petition for contempt, the answer, although filed by Brown, was not a required pleading. Id. “We find no waiver for failure to plead an affirmative defense when no pleading is required.” Id. Because the affirmative defense of statute of limitations had not been waived, the claim for the older child was barred. Id. But, the daughter’s claim was viable because she had not yet reached her twenty-eighth birthday. Id. at 1121-22.

¶ 23. This Court finds the affirmative defense of statute of limitations was not waived here because, although Jackie filed an answer, such pleading was not required. The chancellor was correct in finding Jackie had the right to raise his defenses at any stage, including at trial. Therefore, Jackie’s defense of statute of limitations will serve as a bar to any claims filed after February 1, 1998, seven years after his youngest child reached the age of 21.

So I was correct in the original post insofar as I advised you to assert the defense, but went too far in saying that it must be pled — at least in R 81 matters. It should go without saying that if you don’t get something into the record with the words statute of limitations included, you won’t be able to complain about it on appeal.

Actually, though, even if a matter is not required to be pled, you may file a pleading as Jackie did, and sometimes it’s just a good idea to do that.

______________

Thanks to Joe K. for the reference to Guidry.

The “Other” Hearsay Exception

September 14, 2015 § Leave a comment

This happens from time to time in court:

Lawyer 1: Objection; hearsay.

Lawyer 2: Your honor, it’s an exception to the rule.

Judge: Which exception?

Lawyer 2: (After opening his rule book, searching frantically) Rule 803(24), judge.

MRE 803(24) is headed “Other Exceptions,” and it provides that a statement that does not neatly fit into the category of any other exception may be admitted if it has guarantees of trustworthiness equivalent to the specific exceptions, and if the court determines that (a) it is offered as evidence of a material fact, (b) it is more probative than any other evidence that the proponent could offer through reasonable efforts, (c) the general purpose of these rules (i.e., MRE 102) will best be served by admission of the statement.

Counsel usually makes a fairly cogent argument on the above. The judge then follows up with this query:

Judge: And did you give counsel opposite advance notice before trial?

That’s usually where the discussion ends, because most attorneys have not read the rest of Exception 24. Its most important language reads this way:

However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

Notice that the rule does not say that the statement would be objectionable if advance notice were not given. It says specifically that the statement “may not be admitted” without advance notice.

The case law is consistent that advance notice is a prerequisite to admissibility. See, for example, Benton v. Ivy, an unpublished 2012 COA decision that I posted about here. Also, Balius v. Gaines, 908 So.2d 791, 804 (Miss. App. 2005).

While you’re mulling this over, take a moment to glance at MRE 902(11)(C)( i ).

Equity Delayed is Equity Denied

August 26, 2015 § 2 Comments

If your trial judge in a bench trial takes a case under advisement and fails to render a decision within a reasonable time, MRAP 15 provides the remedy:

(a) When a trial judge in a civil case takes under advisement a motion or request for relief which would be dispositive of any substantive issues and has held such motion or request under advisement for sixty (60) days, the plaintiffs and the defendants shall each within fourteen (14) days thereafter submit a proposed order or judgment to the trial judge and shall forward to the Administrative Office of Courts, the trial court clerk and the opposing parties true copies thereof with a statement setting forth the style and number of the case, the names and addresses of the judge and of all parties and the date on which such motion or request was taken under advisement. On receipt of such proposed orders and notices, the Administrative Office of Courts shall calendar them and notify the trial judge and the trial court clerk of the filing. At any time thereafter that an order or judgment is entered on the motion or request for relief, the plaintiffs and the defendants shall, in writing, promptly notify the Administrative Office of Courts and the opposing parties of the date of entry of the decision; copies of such notification shall be sent to the judge and the trial court clerk. If no written notice of a decision is received by the Administrative Office of Courts within six(6) months from the date the case was taken under advisement, the Administrative Office of Courts shall confirm with the trial court clerk that no order or judgment has been entered and notify the Supreme Court. The Administrative Office of Courts will forward copies of its notification to the trial judge and parties and shall advise the judge and counsel that they are to respond to the notice within a specified period. The Supreme Court shall treat such notification as the filing of an application for a writ of mandamus by all the parties to the action and shall proceed accordingly. The notice of the Administrative Office of Courts of the time within which to respond shall satisfy the requirements of M.R.A.P. 21(d).

(b) The trial judge, not later than thirty (30) days prior to the expiration of the six (6) months from the date the case was taken under advisement, for just cause shown, may apply in writing to the Supreme Court for additional time beyond said six (6) months in which to enter a decision. Concurrently, the judge shall provide a copy of such application to each of the parties.

No one wants to tick off a chancellor who holds the fate of the client in his or her hands, but sometimes you just gotta do what you gotta do.

I mention this with the COA’s decision in Chipley v. Chipley, decided August 11, 2015, in mind. In that case, the Special Chancellor granted a divorce between Wanda and Kenneth Chipley on January 25, 2011, and directed the attorneys to provide, in effect, proposed findings of fact and conclusions of law on Ferguson factors within ten days. Thereafter, the case sat dead in the water for two years, until the MSSC ordered the chancellor to adjudicate the property division, which he did on February 15, 2013. After some post-trial-motion maneuvering that ate up the remainder of the year, Wanda filed an appeal on December 17, 2013, which the COA determined to be timely.

In its August 11, 2015, opinion (that’s four years and nearly eight months after the divorce), the case was reversed and remanded because the Special Chancellor failed to include a Ferguson analysis in his final ruling. It’s axiomatic that the judge’s decision must be supported by findings of fact and conclusions of law on Ferguson. Dickerson v. Dickerson, 34 So.3d 637, 644 (¶24) (Miss. App. 2010). It’s not enough merely to mention the factors. Lee v. Lee, 78 So.3d 326, 329 (¶10) (Miss. 2012). No analysis = reversal and remand. Reed v. Reed, 141 So.3d 450, 455 (¶18) (Miss. App. 2014).

Still to be dealt with are a motion for rehearing and possible cert petition before a mandate is issued, chewing up some more time in the Chipleys’ lives. After all that, they will return to where they started, still without a determination of their property interests. It will take some time to appoint a replacement Special Chancellor, since the original one has died, and the remand hearing will need to be scheduled to accommodate the lawyers, judge, and the parties, which likely will mean more delay and a trial either in the first quarter of 2016, if no further appellate proceedings are had, or much later if the case tarries in the higher courts. I wonder whether those assets that they are fighting over will still even exist after all that time.

The Excusable Neglect Trap

July 30, 2015 § 2 Comments

I think it’s fair to say that it’s unwise for an attorney to place much reliance on the concept of excusable neglect to extract himself or herself from the trouble one encounters due to failure to act.

MRAP 4 provides that notice of an appeal must be filed within thirty days of entry of the order or judgment appealed from. The trial judge, however, may extend that time, even ex parte, for good cause if the motion is filed within the 30-day time limit. MRAP 4(a) also provides that “Notice of any such motion which is filed after expiration of the prescribed time shall be given to other parties, and the motion shall only be granted upon a showing of excusable neglect.” [Emphasis added]

That rule came into play in a recent COA case.

An emotional family land dispute that had taken years to litigate finally resulted in a judgment against David and Jené Nunnery on June 20, 2012. Their attorney at trial withdrew after the trial ended, but before entry of the judgment. A replacement attorney filed a R59 motion on June 29, 2012, but did not set it for hearing. More than a year later, the chancery clerk brought it to the attention of the chancellor that the motion was pending and unresolved, and the chancellor overruled the motion sua sponte by order entered October 1, 2013. On November 9, 2013, the Nunnerys’ attorney filed a motion to extend the time to appeal. His motion spelled out his rationale:

a close family member of the undersigned attorney was involved in a serious car wreck in South Carolina, was in a comma [sic] in intensive care, underwent surgical procedures, and was placed on life support. These unfortunate events extended for a period of four (4) weeks requiring the undersigned attorney’s regular attendance at the Greenville, South Carolina hospital. On November 9, 2013, the family removed life support[,] and on November 16[, 2013,] the funeral was held.

The attorney explained at hearing that the relative was his brother, and he was required to spend many hours at the young man’s bedside and in counselling family members about end-of-life decisions.

In overruling the motion, the chancellor noted that the brother’s accident happened when there were still eight days remaining within which to file an appeal. She found it more significant that the R59 motion had never been prosecuted, and that the failure of the Nunnerys to move forward with their post-trial motion and appeal had already unduly delayed the finality of the judgment, and further delay would only prejudice the prevailing parties.

In Estate of Nunnery: Nunnery v. Nunnery, handed down by the COA July 21, 2015, the COA affirmed, finding that the chancellor did not abuse her discretion in denying the request for the extension. The majority opinion emphasized that the attorney could have filed the notice of appeal in the 22 days that had elapsed before the accident. Judge Maxwell’s specially concurring opinion made the valid point that the attorney may have had good reason for not filing the notice within the 22 days; it may have been that he could not get authorization from his clients, or maybe he had not yet been paid to file the appeal. Judge Maxwell pointed out that an appeal filed on the 30th day is as legitimate as one filed earlier. He would have relied more on the prejudice to the opposing party that, as he put it, trumped the unfortunate circumstances that prompted the motion.

As an aside, what should you do if the deadline is about to expire and you still have no retainer and no clear instructions from your client? One possibility is to ask the court for an extension within the 30-day window, which will likely be easily granted. Another is to file a notice of appeal without your client’s blessing. You will have to front the filing fee, but you will have bought some more time. It’s a strategy that can backfire, though, because your client can argue that you are now in the case to the end, paid or not. I did that once for a client who was having trouble gathering the money to cover court and transcription costs and attorney fees. It turned out okay, though, when the client did retain me shortly thereafter.

The Nunnery case seems like a harsh outcome, but the concept of excusable neglect is not all about the lawyer claiming it. It’s also about the others who will be affected by the court’s ruling. A lawyer asked me to “be fair” to his client in a case recently, and I assured him that I would, but that I also had to be fair to the other side at the same time. Sometimes the result of being fair can cut like a knife.

I call the concept of excusable neglect a “trap,” because it can lull you into a false sense of security that if you don’t tend to your business the court will rescue you. It should go without saying that asking the court to excuse your neglect should only be a last-ditch tactic. Better to watch those deadlines and act promptly.

Demoting General Relief

July 28, 2015 § 5 Comments

One of the chief distinctions between chancery and the law courts is that chancery is often called upon to be a problem-solving venue, as opposed to a place where one goes to obtain a money judgment against another.

And the chancellor’s authority to fix the situation can extend beyond the specific relief spelled out in the pleadings.

Many, many cases can come to mind to illustrate what I am talking about, but here are a couple:

A case in which there is an acrimonious battle over child custody. In the course of the trial, the proof develops that both of the parties are using the children as pawns and spies, and are downgrading the other parent to the children. The pleadings filed by each party asked only for custody. Is the chancellor precluded from addressing the deleterious conduct in her final judgment? Of course not. Chancellors often add an injunction against conduct like that, whether asked for in pleadings or not. That has been the practice in chancery as long as I have been around, and it should be.
Another example could arise in a land-line case. That type case is often characterized by property damage and atrocities, threats, and breaches of the peace (as, for instance in this COA case). Faced with evidence of such misconduct, can the chancellor deal with it even in the absence of an express prayer for relief? I think she should.

The principle embodied in those cases is why pleadings in chancery court typically include the ending phrase ” … and (s)he prays for general relief.” General relief flows out of the reservoir of equitable power that a chancellor can draw on to solve the problem, not just award money judgments. That is, after all, what equity was created for in the first place.

In the case of Redmond v. Cooper, 151 Miss. 771, 119 So. 592 (1928), the court had this to say about general relief:

“A prayer for general relief is as broad as the equitable powers of the court. Under it, the court will shape its decree according to the equities of the case, and, broadly speaking, will grant any relief warranted by the allegations of the bill, whether it is the only prayer in the bill, or whether there is a special prayer for particular and different relief; and defects in the special prayer are usually cured by a general prayer. If the facts alleged are broad enough to warrant relief, it matters not how narrow the specific prayer may be, if the bill contains a prayer for general relief. The prayer for general relief serves to aid and supplement the special prayer by expanding the special relief sought, so as to authorize further relief of the same nature. It may also serve as a substitute for the prayer for special relief, and authorize relief of a different nature when that specially prayed is denied.”

No doubt the above was what the chancellor had in mind in the course of legal proceedings between Denise Pratt and Darlene Nelson. Pratt had been making threatening phone calls to Nelson, and had been driving by her home at night. On one day, over the course of a few hours, Pratt sent Nelson 78 text messages, 38 telephone messages, 38 phone calls, and numerous voicemail messages, both via landline and cell phones. Nelson testified that Pratt used profanity and threatened that she and members of her household “would burn alive.” Nelson’s daughter was awakened by one of the calls, became frightened by what she heard, and fell while running to her mother, suffering an injury that required stitches in an emergency room.

Nelson filed a petition for an ex parte emergency domestic relations order in municipal court. Later, she filed a petition for a domestic abuse protection order in chancery court. In both instances, she used the forms provided by the Mississippi Attorney General, pursuant to MCA 93-21-1 through 33.

Trial before the chancellor commenced, but could not be completed within the time allotted. The case had to be continued to another day. The chancellor found the evidence to that point sufficient to support an injunction against Pratt prohibiting her from going within 1,000 feet of any party to or witness in the proceeding until the hearing could be concluded. After the hearing had been reconvened and the proof was concluded, the chancellor ruled from the bench, in part [quoting from Fn 6 of the COA’s opinion cited below]:

“… people are entitled to be left alone. . . . I’m going to keep the restraining order that I set in place at the close of the plaintiff’s case. But I am going to up [the penalty] to $10,000 upon a . . . valid showing of violation of the restraining order that I entered against you, Mrs. Pratt. . . . I think that’s reasonable. . . . I see a pattern of how this has taken place. . . . It’s [been an] ongoing controversy . . . for quite some time.” When Pratt’s counsel asked if the order was granted under the Domestic Abuse Protection Act or under Rule 65, the chancellor responded that he was granting it under the “Chancery Court Rules, . . . a temporary restraining order [under Rule] 65(b), whether it is asked for or not, because that would be general relief.”

Pratt appealed, complaining that the chancellor had erred in issuing an injunction per MRCP 65 when a protective order under the statute should have been issued instead. The COA agreed with her and reversed and rendered in Pratt v. Nelson, decided July 21, 2015.

I can’t disagree with the COA’s conclusion that the chancellor in this particular case went beyond the scope of the domestic-violence statute and the limits of the relief that it allows. What gives me pause, though is that the underlying problem here remains unresolved. The chancellor was there to solve or at least address the problem, which appears from the record to have been serious. He tried to do that via general relief, and, from my reading of the case law, he was within the scope of that authority. The cases on general relief and its parameters are, for the most part, old cases, dating as far back as the 1880’s and into the 1970’s. But that does not indicate that the concept is dead. In Bluewater Logistics, LLC v. Williford, 55 So.3d 148 (Miss. 2011), the MSSC upheld a chancellor’s award of equitable relief against defendants where it had not been expressly pled, but the relief was justified and supported by the evidence.

It seems to me that, ever since the MRCP for the most part did away with entirely different procedures in chancery and the law courts, the appellate courts have been viewing equity in a more limited way, rather than in the expansive view that cases like Redmond employed. It seems that the appellate courts want equity to operate within rigid, prescribed parameters like the law courts, rather than in a more fluid, problem-solving fashion.

When we restrict a chancellor’s power to craft an adequate solution to a human situation in which lives, property, money, and relationships are involved, we can put all of those at risk in the name of proper procedure. Surely no reasonable person wants that kind of result. That’s why we have “general relief” and chancery courts in the first place.

The Unanswered Divorce Complaint

July 21, 2015 § 14 Comments

You have filed a divorce complaint for your client and had the defendant personally served per MRCP 4. Intelligence from your client leads you to believe that the defendant will not participate, so you put the file away and let the thirty days tick down.

On the twenty-ninth day, you receive a handwritten letter from the defendant neither admitting nor denying the allegations of the complaint. The defendant filed a copy of the letter in the case with the Chancery Clerk. You set the case for trial and, exercising prudence, give notice to the defendant of the day and time. You are still convinced that there will be no opposition since no bona fide answer or counterclaim has been filed, and, as your client indicated, the defendant is not likely to participate. You think it best to forego the trouble and expense of discovery.

On the day appointed for trial, you appear with your client and a single corroborating witness. The defendant, however, is there waiting for you, accompanied by competent counsel and a dozen or so supportive witnesses. The defendant is insisting on going forward with a trial right then and there. What to do?

Can the defendant present evidence contra the grounds for divorce, even though he did not file an answer? Yes, according Rawson v. Buta, 609 So.2d 426, 430-431 (Miss. 1992). The lack of an answer does not confess the allegations of the complaint per MRA 93-5-7. Because the allegations of the complaint are not taken as confessed, they always require adequate proof to sustain them, and the defendant may offer proof to rebut the plaintiff’s proof. The defendant may not, however, go outside the scope of the complaint, and may not put on proof supporting any affirmative relief.
You should ask for a continuance — on the record — and explain to the judge in detail why you need one and what were the presumptions on which you based your lack of discovery and other preparations for a trial. Bring to the attention of the court your lack of notice that the defendant would be represented, and what effect that had on your readiness for trial.
Don’t assume if you get your continuance that the 90 days for discovery per UCCR 1.10 has been extended. Ask for additional time and get a court order to that effect.
Was it ethical for that other lawyer to sandbag you like he did? I don’t see a specific ethical provision that was expressly violated, but it just seems to violate the spirit of RPC 3.4, as well as the preamble to the RPC. That kind of conduct does not pass the smell test, and would more than likely tip the scales in your favor for a continuance. In my experience, it’s the kind of conduct that causes hard feelings among attorneys in small communities and should be avoided. Defendant’s lawyer should have notified you when he was retained, or at least he should have filed an entry of appearance in the case and served it on you.
[Added after publication] As a last resort, you could just move to dismiss your client’s complaint per MRCP 41(a). That would stop this unpleasantness, but your client would have to start over, and there is an off-chance that she could be assessed some expenses of the defendant for showing up.

Lay Opinions

July 15, 2015 § Leave a comment

Back in the day, before the MRE, lay opinion testimony was objectionable on the basis that opinions are not facts, and the fact-finder is able to draw its own inferences and conclusions

Nowadays, however, MRE 701 specifically allows lay opinion testimony if three elements are present:

The testimony is rationally based on the perception of the witness; and
It would aid the fact-finder in understanding the witness’s testimony or the determination of a fact in issue; and
It is not based on scientific, technical, or other specialized knowledge within the scope of MRE 702.

In family law, we customarily hear the grandparent asked something like, “Who do you think is the better parent?” followed swiftly by a dreary objection, which should be overruled if the grandparent had the opportunity to observe. The weight of that kind of testimony is most often light as a mote of dust, but it is nonetheless admissible.

But what about the fact that the grandparent is being asked to comment on the ultimate issue? That was verboten in the common law. MRE 704 abrogated that rule, and testimony otherwise admissible is not objectionable now merely because it embraces an ultimate issue to be decided by the trier of fact.

Of course, the chancellor may always exclude lay opinion testimony on the ground that it would not be helpful, but I think it’s better to let it in and give it the weight that it deserves.

Lay opinion testimony is a subject we’ve touched on here in a previous post. As a practice matter, your best approach is to limit lay opinion testimony and focus your case on developing facts. Facts, after all, are what you need in the record to provide a substantial basis for the chancellor’s ruling. Some lay opinion testimony, however, can be mighty powerful. For instance, you are representing the father in a custody case, and the parents of the mother testify that, in their opinion, based on what they observed, the children would be better off with the father. That can be pretty persuasive.

BAH, Humbug

July 8, 2015 § 2 Comments

If you practice law in or around Biloxi, Columbus, Meridian, or any locale where military are among your clientele, you are no doubt acquainted with the concepts of BAH and BAS.

BAH is military-ese for Basic Allowance for Housing, and BAS is the acronym for Basic Allowance for Sustenance (i.e., groceries).

The question whether BAH and BAS should be included in income for calculation of child support has often percolated up in chancery court, and the answer has varied. Some of the confusion, perhaps has been due to the fact that BAH and BAS are not included in taxable income. The COA confronted the issue in a recent case.

In Price v. Snowden, Tim Snowden had agreed to pay 14% of his adjusted gross income (AGI) to Donna Price as child support for a child he had fathered outside marriage. When it came time to pay, Tim did not include BAH and BAS in his income for calculation of child support, apparently on advice of a CPA and after consultation with DHS. Donna sued for contempt based on underpayment. Tim took the position that BAH and BAS were not includable in his income for child support purposes.

In a decision handed down June 30, 2015, Judge Griffis wrote for the court:

¶10. Donna claims that Tim has underpaid his child-support obligation. The child-support order provides that “[Tim] will pay [Donna] child support based upon [f]ourteen [p]er[c]ent (14%) of his adjusted gross income pursuant to statutory guidelines.” The order also provides that this amount is to be adjusted annually.

¶11. We begin with the child-support guidelines. Mississippi Code Annotated section 43-19-101(3)(a) (Supp. 2014) provides that “gross income” includes the following:

[G]ross income from all potential sources that may reasonably be expected to be available to the absent parent including, but not limited to, the following: wages and salary income; income from self-employment; income from commissions; income from investments, including dividends, interest income and income on any trust account or property; [the] absent parent’s portion of any joint income of both parents; workers’ compensation, disability, unemployment, annuity and retirement benefits, including an Individual Retirement Account (IRA); any other payments made by any person, private entity, federal or state government or any unit of local government; alimony; any income earned from an interest in or from inherited property; any other form of earned income; and gross income shall exclude any monetary benefits derived from a second household, such as income of the absent parent’s current spouse[.] (Emphasis added).

¶12. When the original order was entered in 2004, Tim was an officer of the United States Navy. Tim received nontaxable federal payments for basic allowable housing (BAH) and basic allowable subsistence (BAS). Tim testified that his attorneys told him to rely on his mother-in-law, acting as his tax accountant, to calculate his monthly child-support obligation. His mother-in-law claimed she read the statute and “double-checked” with social services to determine that child-support calculations were to be based solely on taxable income.

¶13. Here, Donna and Tim agreed to an escalation clause to determine the appropriate amount of child support. Previously, this Court noted that “[t]he parties may in fact agree of their own volition to do more than the law requires of them. Where such a valid agreement is made, it may be enforced just as any other contract.” Stigler v. Stigler, 48 So.3d 547, 551 (¶9) (Miss. Ct. App. 2009) (internal citations omitted). Here, Donna and Tim both agreed to the escalation clause as written. Tim has not contested the validity or enforceability of the clause in this action. Thus, it is a valid clause in their agreement.

¶14. In Bustin v. Bustin, 806 So. 2d 1136, 1139 (¶8) (Miss. Ct. App. 2001), this Court considered the language “any other form of earned income” in section 43-19-101(3)(a), containing the provisions commonly referred to as the child-support guidelines. Sue and William Bustin were divorced, and William was ordered to pay child support for two children at the statutory amount of twenty percent of his gross income. Id. at 1137 (¶2). After the divorce, William was promoted to be the pastor at his church, and was given a housing allowance of $1,500 per month. Id. William brought a motion to modify his child support obligation, for contempt, and for sanctions, while Sue responded with her own motion to modify. Id. at (¶3). The chancellor determined that William’s housing allowance should be included in the calculation of his gross income. Id. at (¶1). This Court held:

It appears from a plain reading of the text that the statute addresses the issue of income and what is included when tabulating child support. The phrase “any other form of earned income” would seem to include items in a person’s salary package. William is given that housing allowance as part of his salary from the church. If William went to a bank tomorrow and applied for a loan, he would most definitely list his housing allowance as income in order to show that he would be able to repay his loan. Salary from one’s employer is one of the key elements when estimating everything from income taxes to interest rates on a bank loan.

Moreover, computing one’s income for taxation is different than computing one’s income for child[-]support purposes. Our state must protect the best interests of the child. One of the ways Mississippi accomplishes that goal is child[-]support enforcement through statutes. Our statutes delineate what is to be considered as gross income for the purposes of computing child support. This issue is also without merit.

Id. at 1140 (¶¶10-11).

¶15. Quite frankly, this interpretation of section 43-19-101(3)(a) leads to a logical result. Uniform Chancery Court Rule 8.05(a) requires the parties to file a “detailed written statement of actual income and expenses.” The Rule 8.05 form provides for the detail of income and expense. Income is to be disclosed in section 2. Line 13, “Present Monthly Gross Income,” requires the disclosure of “[m]onthly reimbursed expenses and in-kind payments to the extent that they reduce personal living expenses such as cars, travel, gas, phone, etc.” This amount is included in the calculation for the chancellor to determine gross income. Similarly, the Rule 8.05 form provides for the expense to be deducted. Section 3, “Monthly Expenses,” requires a party to disclose “[m]onthly mortgage or rent payments.”

¶16. We find that Tim’s BAH and BAS payments are a “form of earned income” under section 43-19-101(3)(a). The United States Navy paid Tim additional income for his housing and subsistence, and these payments were earned by Tim and assisted him with the payment of his monthly expenses.

That settles that. BAH and BAS must be included in AGI for calculation of child support. That’s going to smart some for the payor, because BAH and BAS are gross sums from which no taxes are deducted. And it’s a nice development for the payee, because it’s going to result in a bigger sum of child support. For lawyers, it answers a question that has heretofore gone unanswered in Mississippi case law.

A few morsels for thought:

At Meridian Naval Air Station, two student pilots, A and B, both apply for on-base housing the same day. Pilot A is assigned the last available base house; he gets no BAS or BAH. Pilot B has no choice but to live off-base due to the unavailability of base housing, and he receives BAS and BAH as a result. Both would pay substantially different amounts in child support. Fair?
Pilot B does not pocket the BAH. He pays all of it and some from his own pocket to rent a house in Meridian. Yet he will be taxed 14% + in child support on that amount. It is a legitimate point that not everyone gets their housing paid by their employer, but the fact is that people enlisting in the military do so with the understanding that, in return for generally lower pay than in the private sector, they will be provided with amenities such as housing.
Pilot A will receive free housing and meals, yet the value of that will not show up on his paycheck stub or on his tax return so it can be quantified for child support calculation. Fair?
Both pilots A and B have their groceries subsidized at the base commissary. That benefit does not show up on a pay stub or tax return, yet it can amount to thousands of dollars a year, and it escapes child support calculation. Fair?

I don’t have any answers to those questions. I’m just laying the groundwork for someone else’s appeal, I guess.

Where Am I?