Must There be a Pending Adoption for TPR to Proceed?
March 25, 2015 § 2 Comments
We discussed the TPR statute yesterday in the context of the MSSC’s holding in Chism v. Bright that the statutory prerequisites in MCA 93-15-103(1) must be met before the chancellor may proceed to consider the grounds for termination of parental rights.
The last of those prerequisites is
… when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them …
In the COA case Farthing v. McGee, decided February 17, 2015, the chancellor ruled in part in a TPR case that the statute required a pending adoption action in order for TPR to proceed. The COA disagreed. Judge Maxwell wrote for a unanimous court, with Judge James specially concurring:
¶20. We also note the chancellor believed a pending adoption petition was a prerequisite to considering grounds for termination. But while an apparent concern of the statute is when a parent’s rights may be terminated for a child to be adopted, there is no statutory mandate that an actual petition must be filed before termination is sought. See Miss. Code. Ann. § 93-15-103(1). Instead, our supreme court recently reemphasized the court must consider if “adoption is in the best interest of the child” as one of the three prerequisites to considering grounds for parental-rights termination. Chism v. Bright, 152 So. 3d 318, 323 (¶15) (Miss. 2014) (emphasis added). Our high court made no mention of the necessity for a pending adoption petition.
¶21. On remand, the chancellor shall consider the GAL’s report when addressing the prerequisites of section 93-15-103(1), as discussed and emphasized by the supreme court in Chism, 152 So. 3d at 323 (¶15). If those prerequisites are deemed met, the chancellor shall address the abandonment-related grounds raised in Kristen’s termination request. [Footnote omitted]
So, until the supremes speak further on this topic, the rule is that the trial court must take into account whether adoption is in the best interest of the child, but no adoption action needs to have been filed.
This is the first case of which I am aware in which the courts have looked at TPR through the prism of Chism ( I know, I did that on purpose). Judge Maxwell’s opinion specifically mentions the abandonment language of prerequisite 1, which I discussed yesterday. That’s comforting and lends a little more weight to the idea that TPR might not be as moribund as we thought.
A Second Look at the TPR Prerequisites
March 24, 2015 § 2 Comments
We talked here earlier in the year about the MSSC’s December 11, 2014, ruling in Chism v. Bright that held, in essence, that until the statutory prerequisites are met, the chancellor may not proceed to examine whether the statutory grounds have been met.
Here’s what the court said:
¶15. As mentioned above, the chancellor found that Jim’s parental rights should be terminated because he exhibited “ongoing behavior which would make it impossible to return the minor child to his care and custody because he has a diagnosable condition, specifically alcohol and drug addiction, unlikely to change within a reasonable time which makes him unable to assume minimally, acceptable care of the child . . . .” But neither the chancellor nor the Court of Appeals addressed subsection (1) of Section 93-15-103, which sets out three prerequisites that must be met before the court may invoke any specific ground for termination. Section 93-15-103(1) states:
(1) When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, relatives are not appropriate or are unavailable, and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them, the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.
Miss. Code Ann. § 93-15-103(1) (Rev. 2013) (emphasis added). See also In Re Dissolution of Marriage of Leverock and Hamby, 23 So. 3d 424, 428 (Miss. 2009). This Court previously has categorized the three prerequisites in subsection (1) as follows:
(1) the child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time or the parent is unable or unwilling to care for the child; (2) relatives are not appropriate or are unavailable; and (3) adoption is in the best interest of the child.
Leverock, 23 So. 3d at 428 (emphasis added).
The Supreme Court concluded that, since the child had not been removed from Jimmy Chism’s home as provided in prerequisite 1, it was improper for the chancellor to proceed to consider the grounds.
But are there only three prerequisites, or are there really three with one having an alternative? Notice that it is the supreme court that numerically categorized the prerequisite section, not the legislature. TPR is purely a creature of statute. The rules of statutory construction require that we give effect to every provision and try to harmonize language that may appear not to fit. Here’s how I would read section 103(1):
1. (a) When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or
(b) the parent is unable or unwilling to care for the child,
2. relatives are not appropriate or are unavailable,
3. and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them,
the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.
The court actually addressed 1(b) in its opinion at ¶ 16, finding that Jimmy had not been proven to have been unable or unwilling g to care for the child.
So to the extent that I rang the alarm bell over the impending doom of our TPR statute, I unring that bell for now, subject to how the courts will apply this statute in the wake of Chism. There was a recent case that did address it, which I will talk about here tomorrow.
For now, though, I wish the court would clarify that there is an alternative in prerequisite 1 — abandonment — that is actually the most common and customary basis for TPR.
Switching Parents
March 18, 2015 § 1 Comment
A lawyer presented me with an interesting adoption query not too long ago. The natural parents are agreeable to the paternal grandmother adopting their child, but they want the father to retain his parental rights so that he can provide health insurance covering the child, and so that he can maintain a relationship and regain custody in the event that something happens to the grandmother. In essence, the parties propose substituting the grandmother for the mother. Can this be done?
The answer, in a word, is no.
That’s because MCA 93-17-13 precludes it. Here’s the pertinent language:
… and all parental rights of the natural parent, or parents, shall be terminated, except as to a natural parent who is the spouse of the adopting parent.
So the only situation in which the parental rights of a parent may survive adoption is where the spouse of a natural parent is adopting the child. In that case, the natural parent/spouse retains his or her parental rights.
The same result would obtain in a situation where the parties agree that a third party may adopt the child, but want to retain their parental rights for some reason. That is not permitted under the statute.
The essence of adoption is the severance of the legal relationship between the child and one or both parents, with a substitution of a new parental relationship. If the arrangement you propose to the court does not accomplish that within the parameters of 93-17-13, you need to think through some alternatives.
I posted in 2012 about a similar adoption conundrum. You can read about it here.
When an Estate is Unnecessary
February 17, 2015 § Leave a comment
The children and widow shuffle into your office. The father and husband has passed on, and they want you to open his estate.
The only assets are a bank account in his sole name with a balance of $6,000, and stock certificates with a value of around $10,000. They’d like you to get the estate opened up so that they can divvy things up and get on with their lives.
Is an estate necessary to get them the money in the bank account and to transfer the stock?
Don’t forget that this property is most likely exempt so that an estate would not be necessary. You can read a prior post about that subject here. But even so, how can you get the funds into the hands of the family without probate?
MCA 81-5-63 provides that any “banking institution” in Mississippi may pay to the “successor” of the decedent any sum to the credit of the decedent up to $12,500, without any court order and free of any liability. The term “successor” includes: (1) the surviving spouse; or, (2) if no surviving spouse, the adult with whom the minor children are residing; or (3) if there is no surviving spouse or no minor children, then either parent of the decedent; or (4) if none of the above, then any adult sibling of the decedent.
MCA 91-7-322 allows any person indebted to a decedent, or having personal property of the decedent, or having negotiable instruments, including stock certificates, of the decedent, to deliver, transfer, or issue the item to the decedent’s successor (as defined above). There are several conditions attached to this code section. They must be incorporated into an affidavit presented to the holder that provides as follows:
- The value of the decedent’s entire estate, excluding liens and encumbrances, can not exceed $50,000; and
- At least 30 days have elapsed since the death of the decedent; and
- No application for appointment of an executor or administrator is pending, nor has one been appointed by a court; and
- The facts of the relationship to the decedent that establish the status of “successor.”
You should read these statutes carefully before advising your clients. The language above is merely a summary. Both statutes give the successor(s) power of disposition over the funds or assets.
These are tools you can use to avoid getting entangled in one of those estates that you can’t ever seem to wind up, and to which you devote many thankless and uncompensated hours. Only last week I commiserated with an attorney about one of those cases, and we agreed that it would be advantageous if lawyers had a crystal ball to divine the future of estates before taking them on. Alas, there is no such prophetical device. One has to rely on one’s own judgment without benefit of foresight.
A Publication Hiccup
February 3, 2015 § 2 Comments
Last week the Meridian Star newspaper failed to publish legal notices scheduled for Tuesday, apparently by oversight. The paper called the lawyers who had had items scheduled and offered to republish any way the lawyers directed.
This caused some heart palpitations that influenced two lawyers to seek out my position on the matter, since estates assigned to me were affected. Each were running second and third publications. They had directed the paper to publish on three consecutive Tuesdays, and were concerned about the variation in days.
Before getting to a response, let’s look at the two most commonly invoked provisions on point:
- MCA 91-7-145(2) states that notice to creditors in an estate, conservatorship, or guardianship ” … shall be published for three consecutive weeks.” The requirement clearly is that the publication be made once in each of three consecutive weeks. The day is immaterial.
- MRCP 4((a)(4)(b) for process by publication is even clearer. It specifically provides that ” … publication of said summons shall be made once in each week during three consecutive weeks …” Again, the specific day of the week is immaterial.
So the answer, simply, is that so long as the paper publishes your notice or process one time in each of three consecutive weeks, regardless of the days when the notices are published, you have met the requirement of the statute and the rule.
There are other notice statutes. When you must comply with one, follow the express language of the statute.
Sometimes we get caught up in old habits, like telling the clerk at the paper to “Run this the next three Wednesdays …” and that’s how we always do it because that’s how we’ve always done it. But it’s the specific language of the statute or rule that controls, not force of habit.
Is TPR Now Extinct?
January 8, 2015 § 11 Comments
Termination of parental rights (TPR) is a statutory creature embodied in MCA 93-15-103 and the surrounding code sections.
I think it’s fair to say that most practitioners and trial court judges focus on the statutory grounds, and, if they are supported by the proof, proceed to termination.
That’s what the chancellor did in the case of Chism v. Bright, which was affirmed by the COA on May 21, 2013. The chancellor found that the Jimmy Ray Chism’s drug and alcohol addictions, abuse of drugs in the presence of the child, instability, and brushes with the law were enough to warrant termination of his parental rights with respect to his son. Jimmy petitioned for cert, which was granted by the MSSC.
In its December 11, 2014, opinion reversing the COA, the high court pointed out that there is much more to TPR than merely proving that one or more of the statutory grounds exist. Justice Lamar, for a unanimous court, laid it out this way:
¶13. Parents have a “fundamental liberty interest . . . in the care, custody, and management of their child” that cannot be taken away without clear and convincing evidence of the required statutory grounds for termination of parental rights. Santosky v. Kramer, 455 U.S. 745, 754, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see also J. Jackson and M. Miller, Encyclopedia of Mississippi Law § 78:39 (2002) (citing Miss. Code Ann. § 93-15-103(3)). State statutes providing for the termination of parental rights are subject to strict scrutiny and “[c]ourts may not add to the enumerated grounds.” Deborah H. Bell, Bell on Mississippi Family Law 409 (2005) (citing Gunter v. Gray, 876 So. 2d 315 (Miss. 2004)); see also Rias v. Henderson, 342 So. 2d 737, 739 (Miss. 1977) (holding that statutes affecting fundamental constitutional rights are subject to strict scrutiny).
¶14. This Court has stated that “[b]ecause parental rights are so important,” the “circumstances under which [those rights] can be terminated by the government” are “sharply limit[ed.]” Gunter v. Gray, 876 So. 2d at 317. Title 93, Chapter 15 of the Mississippi Code sets out the requirements and procedure for the termination of parental rights. See Miss. Code Ann. §§ 93-15-101 through 93-15-111 (Rev. 2013).
¶15. As mentioned above, the chancellor found that Jim’s parental rights should be terminated because he exhibited “ongoing behavior which would make it impossible to return the minor child to his care and custody because he has a diagnosable condition, specifically alcohol and drug addiction, unlikely to change within a reasonable time which makes him unable to assume minimally, acceptable care of the child . . . .” But neither the chancellor nor the Court of Appeals addressed subsection (1) of Section 93-15-103, which sets out three prerequisites that must be met before the court may invoke any specific ground for termination. Section 93-15-103(1) states:
(1) When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, relatives are not appropriate or are unavailable, and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them, the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.
Miss. Code Ann. § 93-15-103(1) (Rev. 2013) (emphasis added). See also In Re Dissolution of Marriage of Leverock and Hamby, 23 So. 3d 424, 428 (Miss. 2009). This Court previously has categorized the three prerequisites in subsection (1) as follows: (1) the child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time or the parent is unable or unwilling to care for the child; (2) relatives are not appropriate or are unavailable; and (3) adoption is in the best interest of the child. Leverock, 23 So. 3d at 428 (emphasis added).
¶16. Here, it is undisputed that Johnny was not “removed from the home of his natural parents.” And we also do not find from this record that Jim is “unable or unwilling” to care for Johnny. First, the chancellor’s finding that Jim was “unable to assume minimally acceptable care” [Fn 6] of Johnny is belied by the fact that he also allowed Jim to have contact with Johnny after he is sober for six months. Neither Abby nor anyone else objects to this. Simply because Jim might not be the best choice to be Johnny’s full-time custodial parent certainly does not mean that he is “unable to care” for Johnny. This Court “has never allowed termination of parental rights only because others may be better parents.” W.A.S., 949 So. 2d at 35. Second, it is undisputed that Jim wants to be a part of Johnny’s life and that they have a very loving relationship, which evidences that Jim is not unwilling to care for him.
[Fn 6] To be clear, the chancellor was analyzing under Section 93-15-103(3), instead of under Section 93-15-103(1).
¶17. Moreover, we affirm the overarching premise that termination of parental rights is a last resort. This intent is evidenced by the Legislature in Section 93-15-103(4), which states:
Legal custody and guardianship by persons other than the parent as well as other permanent alternatives which end the supervision by the Department of Human Services should be considered as alternatives to the termination of parental rights, and these alternatives should be selected when, in the best interest of the child, parental contacts are desirable and it is possible to secure such placement without termination of parental rights.
Miss. Code Ann. § 93-15-103(4) (Rev. 2013) (emphasis added). In short, Abby has not proven the statutory prerequisites found in Section 93-15-103(1) that must be met. As such, we decline to address the specific ground for termination analyzed by the chancellor, or whether termination is in Johnny’s best interest. For these reasons, we reverse the termination order and remand this case to the Union County Chancery Court for further proceedings consistent with this opinion.
So there you have it. If you have pending or contemplate filing a TPR action, you need to backtrack and see whether your case satisfies the three prerequisites. Without all three, you fail.
A few thoughts:
- ” … removed from the home of his natural parents …” by whom? I would presume DHS, which makes this section inapplicable in most chancery cases. If the section is not limited to DHS removal, did the chancellor not in effect order that the child be removed from Jimmy’s home? Or does the strict construction of the statute require that the child be removed from the home of both parents before it can be invoked? That’s what it says.
- Our child custody and support statutes are littered with amendments made to accommodate DHS practices, with resulting confusion. I am not familiar with the legislative history of the TPR statutes, but that could be the source of the convoluted language of section 103. Or, it could be that the legislature actually intended to make TPR well-nigh impossible. If that is what they intended, then the statute is well-crafted.
- This holding was foreshadowed to some extent by the COA’s 2012 decision in LePori v. Welch, about which I posted previously, in which Judge Maxwell pointed out that there is no cause of action for TPR unless an adoption is contemplated.
- I think this effectively puts an end to most TPR cases in chancery court, save for those in which TPR is sought as a precursor to adoption. If you see it differently, I would like you to comment with some persuasive argument to the contrary.
Can Homosexual Behavior be HCIT?
November 25, 2014 § 2 Comments
Rosie Jackson charged her husband Michael with habitual cruel and inhuman treatment based on allegations of Michael’s homosexual behavior, which he denied.
The allegations arose from three sources: (1) Rosie testified that in 2008, she received a call from Michael’s friend John, who complained that he wanted Michael to leave him alone, but John testified at trial that he and Michael had not had sexual contact; (2) Rosie said that one of Michael’s former students, James, told her that Michael had molested him 26 years earlier, and the individual did testify to that effect at trial; and (3) Alma Flowers, the Jacksons’ daughter overheard a 3-way conversation, without Michael’s knowledge, in which Michael solicited a man for oral sex.
Rosie testified that, after she confronted Michael about the allegations, Michael bullied and tried to intimidate her, and she experienced problems with blood sugar and blood pressure, sleeplessness, and anxiety, for which she was prescribed medication.
The chancellor found from the evidence that Rosie had proven Michael guilty of habitual cruel and inhuman treatment. Michael appealed, claiming that the judge erred in finding that Rosie was entitled to a divorce.
The COA affirmed on November 4, 2014, in Jackson v. Jackson. Judge Ishee’s opinion addressed the adequacy of proof to support the judge’s findings on grounds for divorce:
¶13. “The chancellor’s determination of whether a spouse’s conduct rose to the level of cruel and inhuman treatment is a determination of law.” Jones v. Jones, 43 So. 3d 465, 469 (¶7) (Miss. Ct. App. 2009) (citations omitted). Mississippi Code Annotated section 93-5-1 (Rev. 2013) provides twelve fault-based grounds for divorce, including habitual cruel and inhuman treatment. In order to establish a divorce on such ground, the offended spouse must show conduct that either:
(1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief or (2) is so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.
Jones, 43 So. 3d at 469 (¶9) (citations omitted).
¶14. In reviewing whether the conduct reaches that of cruel and inhuman treatment, the chancellor must consider: “1) the conduct of the offending spouse and 2) the impact of that conduct upon the plaintiff.” Fisher v. Fisher, 771 So. 2d 364, 367 (¶10) (Miss. 2000) (internal quotations and citations omitted). The evaluation of the impact of the conduct on the plaintiff is subjective. Smith v. Smith, 90 So. 3d 1259, 1263 (¶11) (Miss. Ct. App. 2011) (citing Faries v. Faries, 607 So. 2d 1204, 1209 (Miss. 1992)). “The focus is on the effect the conduct has on the particular spouse, not its effect on an ordinary, reasonable person.” Id.
¶15. “The ground of habitual cruel and inhuman treatment may be established by a preponderance of the evidence, rather than clear and convincing evidence, and the charge means something more than unkindness or rudeness or mere incompatibility or want of affection.” Fisher, 771 So. 2d at 367 (¶9). The chancellor granted Rosie a divorce based on a finding that Michael’s homosexual relations were such that they made the marriage revolting to Rosie. Therefore, we will focus on the second prong of the test for habitual cruelty – whether Michael’s conduct was so unnatural and infamous as to make the marriage revolting to Rosie.
¶16. There has only been one case where the Mississippi Supreme Court has found that a homosexual affair, alone, constituted habitual cruel and inhuman treatment. See Crutcher v. Crutcher, 86 Miss. 231, 231, 38 So. 337, 337 (1905). In Crutcher, the supreme court found that “[u]nnatural practices of [pederasty] are an infamous indignity to the wife . . . which would make the marriage relation so revolting to her that it would become impossible for her to discharge the duties of wife.” Id. Since Crutcher, this Court has found that evidence of homosexual affairs, when combined with other misconduct, can justify a divorce based on habitual cruel and inhuman treatment. Morris v. Morris, 783 So. 2d 681, 689 (¶¶27-28) (Miss. 2001).
¶17. The record here reflects it was not only alleged that Michael was involved in homosexual affairs, but that he had also molested a child. Rosie testified to learning about both allegations within rapid succession of one another. We find that the combination of this conduct was so repugnant to Rosie that it rendered her unable to perform her marital duties. However, it is well settled that a spouse’s testimony regarding an offending spouse’s behavior must be corroborated when habitual cruel and inhuman treatment is asserted. Pace v. Pace, 16 So. 3d 734, 741 (¶31) (Miss. Ct. App. 2009) (citation omitted).
¶18. Rosie’s testimony was supported by both Flowers and James. Flowers corroborated the allegations of a homosexual affair by testifying to the conversation she heard where Michael solicited sexual favors from another man. In support of the child-molestation allegations, James gave detailed testimony regarding the molestation that occurred at the hands of Michael when James was only ten years old. In addition to relying on this testimony, the chancery court also relied on other statements made by Rosie. However, we will address the other testimony in Michael’s next issue. We find that Rosie’s testimony, coupled with the corroborating testimony of both Flowers and James, was sufficient alone to support that Michael’s conduct was cruel and inhuman.
¶19. Michael contends that, even if his conduct was found to be inhuman or cruel, Rosie failed to establish a causal connection between his conduct, the separation, and how it impacted her. We disagree. There is no longer a requirement that a specific act caused a separation but “[i]t is, instead, habitual or continuous behavior over a period of time, close in proximity to the separation, or continuing after a separation occurs, that may satisfy the grounds for divorce.” Fisher, 771 So. 2d at 367-68 (¶10). Rosie testified that, upon learning of these sexual allegations, she began to experience adverse physical reactions to learning about Michael’s sexual relationships and history. She also noted, once she confronted Michael, the atmosphere in the home changed and she gave examples of how Michael treated her.
¶20. Michael also asserts that, if his conduct were found to be true, Rosie condoned his behavior by remaining in the marital home for nearly a year after learning about the homosexual affairs and child molestation. The chancellor noted, however, that Rosie had already left the marital bedroom in 2007 and had not engaged in sexual relations since 1999. Further, she was living with her disabled sister, Marian, in the marital home that had been specifically been renovated to accommodate Marian’s disabilities. The chancellor also commented that Rosie may have been in financial duress since she had to take a second job to cover her expenses following the separation. In his final judgment, the chancellor acknowledged that there was no evidence presented by either party as to why Rosie waited to leave Michael. Nonetheless, the chancellor concluded that each of these factors played a role in his finding that Rosie had not condoned Michael’s conduct.
¶21. The chancellor found that the evidence, Michael’s conduct, and the impact it had on Rosie established a divorce on the ground of habitual cruel and inhuman treatment. Although Michael denied the allegations, and several witnesses testified on his behalf, the chancellor found Rosie’s testimony to be credible. The supreme court has held that “[i]t is the role of the chancellor to ascertain whether witnesses and evidence are credible and the weight to give each.” Robinson v. Lanford, 841 So. 2d 1119, 1122 (¶9) (Miss. 2003) (citing Chamblee v. Chamblee, 637 So. 2d 850, 860 (Miss. 1994)). For these reasons, we find Michael’s overall conduct sufficient to support a divorce based on habitual cruelty.
The COA found that the chancellor erred in allowing in Rosie’s testimony of the hearsay conversation with John, but that it was harmless error since the other testimony of Rosie, corroborated by James and Alma, was sufficient. The court also rejected Michael’s objection that James’s allegations were remote in time.
This case presents a classic analysis of the second prong of HCIT. It’s something you can try to apply when that first prong involving danger to life or limb simply does not exist.
Non-marital Children, Estates, and the Statute of Limitations
November 18, 2014 § 4 Comments
Boyce Elmore died in 2000. His widow, Kathleen, opened an administration and was appointed administrator in 2002.
In 2010, more than ten years after Boyce Elmore died, Cedric Williams filed a paternity action in an effort to establish a claim to recover from Boyce’s estate.
The version of MCA 91-1-15(3)(c) in effect at the time provided that a non-marital child might file an action to establish paternity ” … within one (1) year of the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less …” Since Boyce’s estate had not been opened in the first year following his death, the publication provision was inapplicable.
Faced with the issue of Cedric’s timeliness, the chancellor ruled that, because Kathleen had failed to give Cedric notice of the estate, the statute of limitations had been tolled, and his action was timely.
The COA reversed the chancellor’s decision that failure to give Cedric notice tolled the statute of limitations, but would not apply the one-year statute because the appellant had failed to raise the issue on appeal.
MSSC granted cert.
In In the Matter of the Estate of Elmore: Jamison v. Williams, handed down November 6, 2014, the court affirmed the COA’s decision, but held that the appellant had “squarely presented” the issue before the chancellor on appeal and at trial by raising the issue of application of SOL under 91-1-15, so that the one-year statute did apply, and barred Cedric’s suit.
Based on all of this, I believe it is fair to say that failure to give notice to a purported non-marital heir will not toll the statute under the language in effect before 2005. The Mississippi legislature resolved the question in 2005 by adding language to MCA 91-1-15 that ” … this one-year limitation shall be self-executing, and may not be tolled for any reason, including lack of notice.”
A Case for Sanctions
November 10, 2014 § 3 Comments
Louis Pannagl had made a will in 2001. In April, 2011, he contacted Kellems, a lawyer, about changes he wanted to be made in his will. He sent Kellems handwritten notes with the changes, including a document that included the language, “The Will of April 23rd 2011 … has been destroyed and March 23, 1993 [sic].” It is undisputed that the notes were in Louis’s handwriting.
Louis died on June 8, 2011, and Louis’s widow, Donis, contacted one of Louis’s lawyers, who sent her the notes described above. Donis gave the notes to her son, David Lambert, Louis’s step-son, who read them and passed them on to Holmes, an attorney he had hired to open Louis’s estate. On August 19, 2011, a sworn petition was filed, with Louis’s will attached, alleging that the original had been lost and that the will had not been destroyed by Louis with intent to revoke it. The handwritten notes were not attached to the petition.
Both of Louis’s biological son, Curt, and daughter, Sammi, filed contests to probate of the will. It was not until around a year after the petition had been filed that they found out, in the course of discovery, about the handwritten notes revoking the prior will(s). Sammi filed for summary judgment and sanctions under MRCP 11 and the Litigation Accountability Act. The chancellor granted summary judgment, but declined to impose sanctions.
Sammi and Curt appealed the denial of sanctions.
In the case of Estate of Pannagl: Pannagl and Spence v. Lambert and Holmes, the COA on November 4, 2014, reversed. Since this case makes some important points about sanctionable behavior and the applicable law, I am quoting at length:
¶7. In this appeal, Curt contends that Lambert’s failure to include the document in this petition constituted fraud; thus, the chancellor erred in failing to award sanctions. Curt argues that Lambert, having read the handwritten document prior to filing his petition, knew the will had been destroyed with an intent to revoke it and, therefore, had no hope of success. According to Curt, the action was frivolous and constituted a fraud on the court because Lambert withheld the document and filed a sworn petition alleging that the original will was lost and not destroyed by Louis with the intent to revoke it.
¶8. Mississippi Rule of Civil Procedure 11(b) states, in pertinent part:
If any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay, the court may order such a party, or his attorney, or both, to pay to the opposing party or parties the reasonable expenses incurred by such other parties and by their attorneys, including reasonable attorneys’ fees.
M.R.C.P. 11(b). The Litigation Accountability Act states, in pertinent part:
Except as otherwise provided in this chapter, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney’s fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification . . . .
Miss. Code Ann. § 11-55-5(1) (Rev. 2012). The phrase “without substantial justification” is defined by the Act as a filing that is “frivolous, groundless in fact or in law, or vexatious, as determined by the court.” Miss. Code Ann. § 11-55-3(a) (Rev. 2012). “The term ‘frivolous’ as used in this section takes the same definition as it does under Rule 11: a claim or defense made ‘without hope of success.’” In re Spencer, 985 So. 2d at 338 (¶26) (quotations omitted). “A plaintiff’s belief alone will not garner a ‘hope of success’ where a claim has no basis in fact.” Foster v. Ross, 804 So. 2d 1018, 1024 (¶21) (Miss. 2002) (quotations omitted). Whether a party has any “hope of success” is an objective standard to be analyzed from the vantage point of a reasonable plaintiff at the time the complaint was filed. Tricon Metals & Servs. Inc. v. Topp, 537 So. 2d 1331, 1335 (Miss. 1989).
¶9. The chancellor found the following: (1) it was unclear whether the will had been revoked or if Louis merely contemplated doing so; (2) more information was required to determine Louis’s intent; (3) the handwritten document was insufficient to put a proponent of a will having minor children as beneficiaries on notice that it had been revoked; (4) the handwritten document was not subscribed, but merely signed at the top, and the various copies of the document contained different-color ink; and (5) tendering a copy of Louis’s will was not so egregious as to warrant the imposition of sanctions against Lambert and Holmes.
¶10. The Mississippi Supreme Court has found that a misrepresentation of pertinent facts to a chancellor, who entered an order based on the misrepresentations, was a violation of the Litigation Accountability Act and Rule 11 of the Mississippi Rules of Civil Procedure and warranted sanctions. In re Estate of Ladner, 909 So. 2d 1051, 1056 (¶17) (Miss. 2004). In that case, an executor and his attorney failed to inform the court of the testator’s brother’s claim to ownership of cattle located on the brother’s land prior to obtaining a court order to seize the cattle. Id. at 1055-56 (¶¶15-16). In addition, this Court has found that a verified creditor’s notice of claim, filed by the counsel of a creditor of potential heirs of a decedent’s estate and containing a misrepresentation of pertinent facts, was frivolous. In re Necaise, 126 So. 3d 49, 57 (¶30) (Miss. App. Ct. 2013). This Court found that the misrepresentation caused the estate to incur unnecessary attorney’s fees in having to respond to those filings and thus warranted sanctions under Rule 11 and the Litigation Accountability Act. Id.
¶11. In this case, Lambert failed to disclose the existence of the handwritten document when he filed his petition. A reasonable person in Lambert’s position, with Lambert’s knowledge, would have no hope of success in rebutting the presumption that Louis’s will had been lost and not destroyed. Lambert admitted that, when he filed his petition, he had received and read the documents attached to Carrigee’s letter, which included the handwritten document. This letter, with attachments, was later given to Holmes prior to filing this action. In that document, Louis listed a myriad of changes he wanted to make to his will. At the bottom of the first column of the two-column document, he wrote: “The will of April 23rd 2001 Brookhaven/Brady Kellems has been destroyed.” The words “and March 23, 1993,” were written in a different-color ink on Kellems’s copy. The document was signed by Louis, and Donis testified that the document was in his handwriting. Lambert searched for a will, but could not find one. The file folder in Louis’s office entitled “will” was empty.
¶12. From this document, it is clear that Louis wanted to make changes to his will and that he intended to revoke all prior wills. Even though Louis signed this document at the top of the page, Donis testified that it was his handwriting. When taken in context, the statement that: “The will of April 23rd 2001 Brookhaven/Brady Kellems has been destroyed,” effectively put Lambert and his attorney on notice that Louis destroyed his will with the intent to revoke it. This is evidenced by Lambert’s attempt to convert the proceedings to that of intestate succession. On the same day that the court ruled on a motion to compel Kellems to give his deposition, and prior to any other depositions being taken, Lambert filed a motion to amend his petition. He sought a declaration that Louis had died intestate and asked the court to appoint Donis the administrator. The handwritten document had not yet come to light, and judging from the timing of the motion’s filing, Holmes knew that once it did, there would be no hope of success in overcoming the presumption. In the hearing on the motion for summary judgment, Holmes admitted that he filed that motion because he did not think he could overcome the presumption that Louis’s will had been lost and not destroyed.
¶13. The chancellor did not consider the fact of nondisclosure to be important when making her decision about whether to award sanctions. But the fact remains that the nondisclosure was a misrepresentation, making the petition to probate the will frivolous in light of the evidence. The chancellor abused her discretion in not considering Lambert’s nondisclosure in determining the frivolity of the action. Curt incurred unnecessary expense in contesting the probate of this will, only to uncover a document that Lambert withheld for almost a year and a half and that would later serve as the basis for summary judgment.
¶14. Finding that the chancellor abused her discretion in deciding not to award sanctions pursuant to Rule 11 and the Litigation Accountability Act, we reverse and remand for a determination of attorney’s fees and costs.
So the shortcoming here was the failure to disclose the handwritten notes. Hindsight, which is always high-def, tells us that the better practice would have been to disclose the notes and leave it up to the chancellor, as finder of fact, to interpret them. By not disclosing the notes, Lambert and counsel gave the reasonable impression that they were trying to hide something to change a possible adverse outcome. That’s always a recipe for sanctions and even discipline.
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