Boatwright is Dry-Docked
June 30, 2015 § 10 Comments
The legal travails of Toulman and Grace Boatwright have been chronicled here before.
To bring you up to date, this is the case in which: (1) a chancellor recused before ruling on a R59 motion; (2) the remaining chancellor refused to rule on the motion; (3) there was an appeal; (4) the COA reversed on the basis that the second chancellor should have ruled on the motion; (5) on remand the second chancellor recused, and a special chancellor took up the case and ruled on the R59 motion; (6) Toulman appealed again; (7) five (yes, 5) judges of the COA recused (if you’re counting, that’s seven recusals in this saga); and (8) the COA affirmed in Boatwright v. Boatwright, handed down June 23, 2015.
It seems a shame to draw the curtain closed on this epic, which arose in 2004, more than eleven years ago. (Of course, if cert is granted …)
Judges Carlton, Lee, and Irving would have granted a new trial, which would have kept this case going for perhaps an additional eleven years (optimistically speaking).
In case you’re trying to diagram this: McGehee wrote the prevailing opinion, in which Griffis, and Ishee joined; Carlton, Lee, and Irving dissented. Barnes, Roberts, Maxwell, Fair, and James did not participate. A 3-3 tie is an affirmance.
On the serious side, both the majority opinion, written by Special Judge McGehee, and the dissent, penned by Judge Carlton, address some weighty issues of judicial ethics arising out of the social relationships between attorneys and judges. This particular case came to grief when the chancellor accepted an invitation to go turkey hunting with one of the lawyers involved in the Boatwright litigation while the case was pending. Both opinions discuss the ethical considerations involved and their ramifications.
As with many ethical questions, there are not only murky areas, but different people in good faith can see things differently and draw different conclusions, as was the case here.
What is sometimes difficult to see is where to draw the line. In the Guardianship of McClinton case decided only last February by the COA, the court brushed aside attorney Michael Brown’s argument that the judge had an improper social relationship with another attorney in the case because the judge frequently had lunch with that attorney and they attended college football games together. For those of us here on the ground, it can be hard to draw distinctions so as to arrive at a firm idea of appropriate conduct.
The main thing is for us all to take to heart the serious ethical implications involved in the social interactions between lawyers and judges, and to be sensitive to them. It’s absolutely true that litigants, their families and friends, and passers-by are watching everything we do and drawing their own conclusions.
A Procedural Peculiarity
June 11, 2015 § Leave a comment
We’ve talked here many times about the R54(b) principle that, if the judgment disposes of fewer than all of the issues, it is not a final, appealable judgment unless the judge certifies so in the manner prescribed by the rule. We’ve sounded that theme so often that I’m not going to add links in this post. You can search them for yourself, if you care to.
It’s that principle that has me scratching my head over the COA case Wood, et al. v. Miller, decided June 2, 2015.
Donna Smith and Audrey Kemp filed a complaint in chancery court in 2004 to quiet and confirm title, to determine heirship, and to partition some 261 acres of land that had descended via heirship and devise to the parties named in the suit. They filed an amended complaint in 2007.
Following a hearing in 2009, the chancellor entered a judgment quieting and confirming title and ordering partition. The commissioners some time in 2010 filed a report detailing how the property could be divided into three shares.
In October, 2010, the defendants filed a separate pleading in the same civil action seeking to obtain title of all the property by adverse possession. The pleading was not styled as a counterclaim.
In May, 2012, the chancellor entered a judgment confirming the commissioners’ report, and ordered that the petitioners would have one share, the respondents another share, and another group of heirs the third share.
Afterward the plaintiffs filed a pleading asking for a judgment for waste based on the defendants’ refusal to allow the land to be rented during the litigation. At the hearing on that pleading, the question arose about the pending adverse-possession claim that had never been addressed. The attorney for the defendants announced that he would schedule a hearing on the matter at a later date. He never did. The chancellor entered judgment against the defendants for waste for more than $90,000.
The defendants appealed, raising only two issues: (1) that the chancellor erred when she ruled that two of the petitioners had inherited Thornton Miller’s interest in the property through the will of Thornton’s widow, Magnolia; and (2) that they had adversely possessed the property. They did not otherwise contest the heirship determination, the partition, or the judgment for waste. It does not appear from the opinion that they raised any issue as to the original judgment quieting and confirming title.
In its opinion, the COA, by Judge Roberts, pointed out, quite accurately, that any issue of invalidity of Magnolia’s will had not been raised before the chancellor; nor could it, because MCA 91-7-23 requires such claims be brought within two years of probate of the contested will, and not later. Magnolia’s will had been probated in 1986, so the claim as to the will’s invalidity was untimely and barred by the statute. On those grounds, then, the COA refused to review the issue on appeal.
This was unquestionably the right conclusion as to issue (1).
As for the adverse possession claim, issue (2), the court concluded that, since it had never been presented to the chancellor for review, the issue was not properly before it, and refused to entertain this issue also.
With this issue, I have this question: since the judgment of the trial court disposed of fewer than all of the issues, should the COA have accepted jurisdiction over the appeal in the first place? R54(b) provides:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, 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 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 of 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 entry of the judgment adjudicating all the claims and the rights and liabilities of all the parties.
Since the adverse possession issue is still pending as a claim in this case, was there a final, appealable judgment, or should the COA have rejected jurisdiction? Well, no matter, I think that the COA reached the proper conclusion because:
- You can not adversely possess against co-owners. The determination of heirship resolved the issue of Magnolia’s bequest and ownership, making all of the parties co-owners. Even if the matter had been properly presented at hearing to the chancellor, it did not state a claim upon which relief could be granted.
- Any adverse possession claim should have been presented as a compulsory counterclaim to the claim to quiet and confirm, per R13. The reason for the rule is to prevent the very thing that was attempted in this case.
- The chancery court’s order quieting and confirming disposed of any adverse possession claims.
- This matter was pending in the trial court for nine years. If you haven’t demanded a hearing on your claims you should not have the right to ask or demand that the court deal with it later. You’re already late enough.
In other words, the outcome would not have changed. Just to be clear … I agree with the court’s ruling in this case. I just thought it presented a peculiar set of issues and procedures that would be of some interest.
Pro Se Times Five
June 9, 2015 § 5 Comments
Every now and then one of those tv commentators with a big head, staring all-knowingly into the eye of the camera, will pontificate that members of my generation believe — somewhat arrogantly, they say — that we can do anything.
I take issue with that. I know, for example, that I would not be a very successful brain surgeon, what with my less-than-steady hands and absolute ignorance of surgical techniques, not to mention minimal understanding of brain and skull structure. Of course my lack of success in that field would make me a spectacularly successful defendant — from the perspective of plaintiffs.
You would probably agree with me, as would most rational people, that it is singularly ill-advised for laypeople to attempt brain surgery on someone else, or even themselves.
Brain surgery requires a high degree of education, smarts, and practice. As does the law.
Why, then, do ordinarily sensible people — who would not dream of doing brain surgery, and who have had the wherewithal to reach adulthood without blowing themselves up or being devoured by wild beasts or falling into any similar calamity — insist on representing themselves in litigation and — horrors — on appeal?
That’s what happened in the case of Estate of Forrest: Forrest v. Forrest, decided June 2, 2015, by the COA. In that case, Diane Forrest had a falling-out with the sons of her deceased husband over assets and expenses of the estate. When Diane filed a petition to close the estate, the sons showed up at the hearing, ready to do battle. But the chancellor, in solomonic fashion, conferred with the parties and announced that they had reached a settlement agreeable to all. The COA opinion by Judge Ishee describes what happened next:
¶5. After reading the agreement into the record, the chancellor asked the parties if they understood and assented to the agreement as dictated into the record. All parties responded affirmatively. Diane then filed this appeal.
Pro se, I might add.
Diane’s appeal was doomed because Diane’s attorney (herself) apparently did not grasp the fundamental concept that an appeal involves legal argument. Judge Ishee explicated:
¶7. Diane filed her appellant’s brief pro se. In her brief, Diane failed to cite any authority in support of her claims. Pursuant to Mississippi Rule of Appellate Procedure 28(a)(6), an appellant’s brief must “contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” It is well settled under Mississippi caselaw that “failure to cite any authority is a procedural bar, and a reviewing court is under no obligation to consider the assignment.” Norwood v. Miss. Dep’t of Emp’t Sec., 105 So. 3d 408, 410 (¶5) (Miss. Ct. App. 2012) (citation omitted).
¶8. Although Diane has chosen to appeal this matter without the assistance of counsel, the Mississippi Supreme Court has consistently held that “[a] pro se litigant shall be held to the same standard as an attorney.” Bailey v. Wheatley Estates Corp., 829 So. 2d 1278, 1281 (¶11) (Miss. Ct. App. 2002). As such, we decline to address Diane’s assignments of error because she failed to cite any authority in her briefs.
Actually, Diane’s failure to cite any authority is probably indicative of the fact that there is no authority that would support reversing the chancellor in this case. Diane made her deal, affirmed her agreement in open court, and then tried to renege via appeal. That’s not a formula for success.
Oh, and did I mention that all four of the sons, who were appellees, are listed as pro se also? So were they better lawyers than Diane because they won? Not necessarily. Their one defensive ploy was to move to strike Diane’s brief because it was filed too late. The COA dismissed that issue as mooted out by the larger and much more obvious issue of failure to cite any authority.
I know what you’re probably thinking: “it’s obvious that they were pro se because they did not want to pay lawyers.” I get that. I know that lawyers, particularly in bulk, can be expensive. But that’s sort of beside the point. The point is that a pro se appeal is about as futile as doing brain surgery on oneself — and about as messy and painful.
Rule 5.1 Suspended
June 8, 2015 § 2 Comments
The MSSC suspended operation of MRCP 5.1 last Thursday. Here’s the text of the order:
This matter is before the en bane Court on the Court’s own motion.
On April 28, 2015, we entered an order amending the Mississippi Rules of Civil Procedure to add Rule 5 .1. The amendment became effective that same date.
After due consideration, however, we find that the April 28 order should be vacated and that Rule 5 .1 should be suspended until further order from this Court. We further find that Rule 5.1 should be struck from the rules published on the Court’s website and omitted
from the next edition of the Mississippi Rules of Court
IT IS THEREFORE ORDERED that the April 28 order adopting Rule 5 .1 is vacated, and Rule 5 .1 is suspended until further order from this Court. Rule 5 .1 shall also be struck from the rules published on the Court’s website and omitted from the next edition of the
Mississippi Rules of Court.
SO ORDERED, this the 4th day of June, 2015.
That should alleviate for now some of the anxiety among chancellors and lawyers who have been scratching their heads over how to implement the new rule in cases involving child support, custody, and myriad other types of cases involving children in counties still using paper filings.
Remember, however, that confidentiality requirements similar to 5.1 are still in effect in MEC jurisdictions.
The MRCP 60(b) Appeal
May 26, 2015 § Leave a comment
The COA’s decision in Crossley, et al. v. Moore, et al., decided April 21, 2015, addresses an important distinction between an appeal on the merits and what is reviewable in an appeal from a court’s MRCP 60(b) ruling.
In that case, the chancellor had stricken Crossley’s (the collective name for the defendants that this post will apply) answer and counterclaim due to a prolonged and obstinate refusal to cooperate and obey court orders for discovery. The judge entered a default judgment against the defendants, and set a hearing on damages. At that hearing, he heard testimony and entered a judgment against the defendants for more than $760,000 in damages, which included $26,000 in attorney’s fees. Crossley did not appeal.
Five months after entry of the judgment, Crossley filed a motion pursuant to MRCP 60(b) to set aside the judgments, claiming (1) that they never received notice of the hearing on sanctions for discovery violations, and (2) that they never received notice of hearing on the damages issue. At hearing, however, the defendants admitted that they did receive notice of the sanctions hearing, but insisted that they had not as to the damages hearing. The chancellor overruled the motion as to the sanctions hearing, leaving the default judgment intact, but granted a rehearing on the issue of damages.
Crossley appealed, arguing that the trial judge was in error in dismissing their answer and counterclaim based on sanctions.
The COA affirmed. Judge Maxwell wrote for the majority:
¶13. We begin with the discovery sanction. And the first order of business is to determine just exactly what Crossley and Templet are appealing. From their brief, they seem to argue they are appealing the merits of the August 2009 decision to strike their answer. But that decision led to a default judgment—a judgment that became final in March 2010. And this final judgment was not appealed. Nor was this judgment set aside. While the chancellor did order a new hearing on damages, Crossley and Templet acknowledge in their brief that the chancellor “refused to set aside the judgment itself.”
¶14. With the underlying default judgment left undisturbed, what Crossley and Templet are in fact appealing is the denial of their Rule 60(b) motion to set aside. See Blackmon v. W.S. Badcock Corp., Inc., 342 So. 2d 367, 371 (Ala. Civ. App. 1977) (holding that a Rule 60(b) ruling to vacate a damages award and conduct a new hearing did not confer on the movant the right to address the merits of the underlying default judgment). As we recently reiterated, this court’s “review of the denial of a Rule 60(b) motion is extremely limited.” Davis v. Vance, 138 So. 3d 961, 963 (¶1) (Miss. Ct. App. 2014). We are “not allowed to inquire into the actual merits of the underlying judgment.” Id. This is because Rule 60(b) is not a vehicle to relitigate the merits of a trial judge’s decision. Woods v. Victory Mktg., LLC, 111 So. 3d 1234, 1237 (¶13) (Miss. Ct. App. 2013). So even if the chancellor had done something that may have been reversible error had Crossley and Templet timely appealed, the fact remains that they did not appeal. And Rule 60(b) cannot be used to get around this. See Williams v. New Orleans Pub. Serv., Inc., 728 F.2d 730, 736 (5th Cir. 1984).
¶15. This court reviews the denial of their Rule 60(b) motion for abuse of discretion. Stringfellow v. Stringfellow, 451 So. 2d 219, 221 (Miss. 1984).
That’s a critical point to grasp. You can not use R60(b) as a vehicle to open the merits of the underlying judgment to appellate review. Once the deadline for appeal has past, the judgment itself is final and not reviewable on the merits. The only issue on appeal is whether the trial judge abused his or her discretion in ruling on the R60(b) motion. In this particular case, the COA ruled that the chancellor had not abused his discretion.
Another take-away from this case is that continued obstinate evasion of discovery and failure to abide by court orders for discovery have painful consequences that can radically alter the landscape of a lawsuit.
Electronic Service of Process
May 14, 2015 § 7 Comments
An attorney recently asked me whether he could effect service of process via email. It seems that the proposed defendant would communicate with the attorney’s client by email, but kept his address and whereabouts to himself.
My response was that there is no provision in MRCP 4 for electronic process, and until there is, he and his client should make diligent inquiry to ascertain the same, and obtain process by publication.
Later I stumbled across MEC rule § 3.F.3:
A party may not electronically serve a summons and complaint, but must perfect service according to M.R.C.P. 4 or 81, as applicable.
That covers that.
Also, MEC rule § 6.A.2 requires summonses and complaints to be issued by conventional means.
At first blush, electronic summonses and subpoenas would appear to be the next electronic innovation, since email is so ubiquitous. The flaw in it, however, is that there is no guarantee that the recipient of the email is actually the person who owns the email account. Due process requires that a person have actual notice of the filing of the suit, and an opportunity to be heard. Personal service fulfills those requirements, and publication constructively does it. Email leaves open the possibility that a judgment could be set aside because the recipient was not the addressee. Until that possibility is eliminated somehow by the technical folks, we will have to stay our current course.
Rules for Comment
April 8, 2015 § 3 Comments
There are some proposed rule changes up for comment at the MSSC web site. You can access them at this link.
The changes would be to MRCP 16, primarily, with a couple of affected words fixed in R26. The other change is to the Circuit and County Court Rules.
The rule change is designed, as I understand it, to alleviate the lengthy waits that litigators experience in circuit court.
While the changes appear to be a probably effective one-size-fits-all solution to the kind of litigation involved that transpires in circuit court, I think if they were rigidly applied in chancery, it would actually have the effect of slowing down proceedings and clogging up the docket. I have been using scheduling orders for years, and our deadlines are much tighter than these proposed.
The rule changes specifically do not apply to R81 matters, which is a good thing. But divorces are R4 matters, although there is that language that says the MRCP has limited applicability to Title 93 matters, which includes divorce.
Anyway, the MSSC invites comment. You are cordially invited to the discussion. Take advantage of the opportunity.
The 41(b) Dismissal
April 2, 2015 § Leave a comment
When the other side rests in a contested bench trial, that’s the time to consider whether you should make a motion to dismiss pursuant to MRCP 41(b).
In the recent case of Pittman v. Pittman, handed down March 24, 2015, the COA, by Judge James, spelled out just what it takes for the chancellor to grant such a motion:
¶10. A motion for an involuntary dismissal pursuant to Rule 41(b) should be granted if the chancellor, “after viewing the evidence fairly, . . . would find for the defendant.” Amos ex rel. Amos v. Jackson Pub. Sch. Dist., 139 So. 3d 120, 123 (¶7) (Miss. Ct. App. 2014). A chancellor “must deny a motion to dismiss only if the [chancellor] would be obliged to find for the plaintiff if the plaintiff’s evidence were all the evidence offered in the case.” Id. When reviewing a Rule 41(b) dismissal, this Court “will not overturn the decision of a chancellor if his findings are supported by substantial evidence unless he abused his discretion, was manifestly wrong, or applied an erroneous legal standard.” Jones v. Jones, 101 So. 3d 731, 732 (¶4) (Miss. Ct. App. 2012).
That’s about as succinct a statement of the standard to be applied that you will find. You might want to file that away for future use.
Dealing with the Intruder
February 23, 2015 § 2 Comments
In an earlier, more genteel era, it was unheard of that one lawyer would talk with a party already represented by another lawyer without that lawyer’s permission. Okay, maybe not unheard of, but certainly not considered acceptable behavior.
Nowadays, though, I’m hearing lawyers telling me about receiving emails from other lawyers to the effect that “I’ve talked to your client and she’s firing you; I’m sending you the paperwork in a couple of days.” It’s a dog-eat-dog world out there, I guess.
Two situations I heard of lately:
First: Lawyer One is preparing for trial and receives a letter from Lawyer Two to stop whatever One is doing because Two is going to substitute in the case and take over for trial. What is One to do?
Second: Attorney One receives a letter from Attorney Two that the executor of the estate wants One out, and Two in. The letter includes allegations of impropriety committed by One, with veiled threats of action, and enclosed is an affidavit of the executor confirming the contents of the letter.
Before going any further, I need to add that in both cases the second attorney never did make that appearance. In the first case, Lawyer Two simply never followed through. In the second case, Attorney Two sent a brief email saying he had decided not to get into the case.
The underlying principle here is that once a lawyer enters an appearance in a case he is in it until the judge signs an order letting him out. Just because another lawyer claims to be poaching the client, or the client says “you are fired,” does not relieve the lawyer of his responsibility to the court. As the lawyer of record, you are in it until the judge lets you out.
In Scenario One above, the dilemma is that the lawyer is prepping for trial, and now is in a quandary as to whether to continue to invest time in the case or get out. An obvious first step is to contact the client immediately to get some clear directions. If the client clearly wants the attorney out, or if the client will not communicate, the lawyer should file a motion immediately with the court asking for directions, spelling out the communication from the other attorney. She should do it without delay, because judges tend to be loath to further postpone a case that has been riding the docket for a while, and getting the judge to vacate a rare trial date is an uphill climb. She should give notice of hearing to the attorney on the opposing side, of course, and also the interloping lawyer, as well as the client. In this scenario there is always the option to cut the client loose — represented or not — provided it results in no irreparable harm.
In Scenario Two, the problem is that the Uniform Chancery Court Rules require the fiduciary to be represented by a lawyer. Most chancellors hew strictly to the rule and will not allow the lawyer who has entered an appearance to get out unless and until there is a replacement. Still, I would file a motion as soon as possible, with notice to the fiduciary and the interloping lawyer, asking the court for directions.
In both scenarios, while motions are pending I would continue to do whatever needs to be done to protect the client’s interest, such as meeting deadlines for identification of experts, issuing subpoenas, and so on, knowing full well that I might not be compensated for it. You can’t assume that the judge will let you out, so you have to do what needs to be done.
The question remains whether it is ethical to confer with a person about a matter in which the person is already represented by a lawyer. MRPC 4.2 clearly prohibits a lawyer in a case from communicating with another represented party about the subject matter of the case without permission of that party’s lawyer. It says that “In representing a client, a lawyer shall not communicate about the subject matter of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so” [Emphasis added]. Here’s what Professors Jackson and Campbell have to say about it:
Rule 4.2 is sometimes misinterpreted as preventing a lawyer from having contact with any represented person. As noted, the rule only applies if the lawyer himself has a client in a matter. For example, sometimes a represented client will seek to discuss her case with a second disinterested lawyer (who has no other client in the matter), as in circumstances where the client is considering firing the existing counsel to hire the second lawyer. Such conferences can be socially useful, as these consultations can give the client a second opinion regarding her representation. Such consultations can also give the client an opportunity to determine whether the client is being adequately represented at reasonable rates.
It is not unprofessional for the second disinterested lawyer to discuss options with the represented client Rule 4.2 does not apply in such contexts. The second lawyer does not need permission of the client’s existing counsel in order to have such a consultation with the represented client. Some lawyers are hesitant to “look over another lawyer’s shoulder” or to speak ill of another lawyer’s work. Others may not want to interfere with another lawyer’s client relationships. Any reluctance the second lawyer may have discussing the work of client’s existing counsel may be based on professional courtesy or on other factors. However, again, Rule 4.2 is not implicated in these consultations. [Footnotes omitted]
J. Jackson and D. Campbell, Professional responsibility for Mississippi Lawyers, § 21-3 (2010).
If you find yourself in the position of the interlopers above, do everyone a favor and refrain from notifying pre-existing counsel that you are going to jump in until you are absolutely certain that you are going to do it. Just because a person visits with you and extracts some advice from you does not necessarily make that person a client for court purposes. If you quoted a fee and made it clear that you will not enter the case until you are paid the agreed sum, there is no need to act until it has been paid.
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