Reprise: How to Ensure that Your Case Survives MRCP 41(d)
June 19, 2014 § 4 Comments
WHEN RULE 41(D) COMES KNOCKING AT YOUR DOOR
September 8, 2010 § 8 Comments
Rule 41(d), MRCP, is the familiar rule by which the Chancery Clerk is authorized to send out a notice to all counsel and self-represented parties in cases ” … wherein there has been no action of record during the preceding twelve months …” that the case will be dismissed for want of prosecution. The rule requires the clerk to dismiss the action unless within thirty days of the notice, ” … action of record is taken or an application in writing is made to the court and good cause is shown why it should be continued as a pending case.”
You have received such a notice, and, galvanized into action, you toss it on your paralegal’s desk and say, “Here, take care of this,” as you saunter out the door trying not to be late for your tee time. The paralegal scours the files and finds that your usual response is to file something called “Notice to Keep Case on the Active Docket,” and she tosses a copy of it on the secretary’s desk and says, “Here, do me one of these,” and returns to her office to continue whittling away at a four-foot-tall mound of discovery. In due course, the secretary produces said pleading, you sign it, the paralegal files it, and everything is fine. Until the next week, when you find your case was dismissed despite your efforts. What went wrong?
In the case of Illinois Central Railroad Co. v. Moore, 994 So.2d 723, 728 (Miss. 2008), the Mississippi Supreme Court held that a Circuit Judge should have dismissed the plaintiff’s suit after he had received Rule 41(d) notice, and his attorney filed nothing more than letters with the court requesting that it not be dismissed. The court reasoned that Rule 41(d) requires that some procedural action that would have the effect of moving the case forward be filed, or that a proper motion under the rules be filed and noticed, the motion showing good cause why the action should not be dismiised and asking the court to rule affirmatively that it should not be dismissed.
There was evidence of severe dilatoriness on the part of plaintiff’s counsel in the ICC case. The appellate decision, however, did not turn on his want of action, but only found it to be an aggravating factor. The court’s holding turned on counsel’s non-compliance with the rules, and the result was dismissal of the lawsuit. Although dismissal under 41(d) is without prejudice, the dismissal in ICC was fatal due to the statute of limitations.
The Supreme Court decision noted that there has been a relaxed attitude about responses to 41(d) notices, but stated that it would not follow the same path. ICC now stands for the proposition that if you skirt by the rule and succeed in having your action kept on the active docket, you will likely fail if the other side appeals.
If you want to keep an action from being dismissed under Rule 41(d), simply follow the rule and either: (1) Take some action of record, such as serving discovery, or filing a legitimate motion to advance the case; or (2) File a motion with the court asking that it not be dismissed, stating good cause to support your position, and notice the motion for hearing before the thirty days expires. Anything short of either action could result in a favorable ruling by a more relaxed trial judge, but will leave you vulnerable on appeal.
Caveat: Remember that Uniform Chancery Court Rule 1.10 requires that discovery must be completed within 90 days of service of an answer, unless extended by the court. It is unlikely that this judge would have allowed either party an extension that would cause a case to be pending as long as a year. It would be difficult to convince a judge that propounding discovery after the discovery deadline has expired would be an action of record that would have the effect of moving the case forward.
Comment: The consequences of Rule 41(d) to a cause of action are usually not as dire in Chancery Court as they are in Circuit. Statutes of limitation are not as often a concern in Chancery. For clients on an unequal financial footing, however, a 41(d) dismissal can cause expenses and fees to increase dramatically, and may spell the end of meritorious litigation. It may also require you to represent a client through an appeal that you were not paid to handle, just to avoid some other action by your client.
2014 Comment … in this district, we require the clerk to bring us every response filed to a R41(d) notice. If the response des not have the effect of advancing the case on the docket, I enter an order instructing the attorney of the duty to do so and extend the dismissal date for a time, usually 30 days. If no action is taken, or the response still does not advance the case on the docket, I dismiss. The point is that a mere “Notice to keep case on the docket,” or “Request not to dismiss” will not do it. You have to show the court some evidence that the case still has signs of life.
Some Language to Add to your Fiduciary Orders
June 17, 2014 § 7 Comments
In this district we have had a problem with fiduciaries having been appointed and never qualified by taking the oath and posting any required bond, and consequently not having Letters issued.
A fiduciary has no authority to act unless and until that person has qualified, which requires taking the oath, posting any required bond, and having Letters issued.
In one case in my court the person appointed used the order appointing him, without Letters of Administration ever having been issued, to sell a car, and he closed a couple of bank accounts. He sold the car and pocketed the money; who knows what he did with the funds. The lawyer who opened the estate spent a considerable sum out of his own pocket trying to recover the estate’s money. Not surprisingly, the perpetrator was judgment proof and can no longer be found on this planet.
In another case, a woman (not the mother) testified that she was guardian of the child, but when I ordered the insurance attorney to get the guardianship file, it showed that only an order appointing her had been entered, and she had never taken an oath or posted a required $10,000 bond. Incidentally, she testified that her lawyer had told her that the order was adequate, and she proceeded to use that apparent authority to negotiate a settlement of the child’s claim.
We came up with some language that we now require all attorneys to include in their orders opening estates, guardianships, and conservatorships. You may find this language useful in your own district, and even if you find it superfluous, you just might conclude that there’s no harm in including it.
Here it is:
IT IS FURTHER ORDERED AND ADJUDGED that if the fiduciary has failed to qualify by posting the required bond, if any, taking the oath, and having appropriate Letters issued as required by this order and the laws of the State of Mississippi within thirty (30) days of entry of this order, then the Chancery Clerk is hereby ordered and directed to notify the court immediately of such failure, and the court shall enter an order dismissing this civil action without prejudice and without further notice to the fiduciary, or attorney of record for the fiduciary, or any other parties who have entered an appearance in this civil action.
IT IS FURTHER ORDERED AND ADJUDGED THAT THIS ORDER DOES NOT AUTHORIZE [Name] TO ACT AS THE FIDUCIARY FOR [Name of ward or decedent] UNLESS VALID LETTERS [Testamentary, or of Administration, or of Guardianship, or of Conservatorship] ARE ATTACHED HERETO.
IT IS FURTHER ORDERED AND ADJUDGED that persons who use or accept this order without the attached Letters as court authority to act or conduct the affairs of the [ward or decedent] shall be subject to sanctions by this court.
Four Years and Counting
June 12, 2014 § 17 Comments
This blog was born on June 14, 2010. This coming Saturday will mark its fourth birthday.
The inspiration to do this came from an exasperated chancellor in an adjoining district who called to inquire whether I was having problems, as he was, with attorneys not complying with the amended adoption pleading requirements and jurisdictional residence periods. Those amendments had been in effect over two years, and lawyers were still expressing surprise that there had been any changes in the statutes. I had been dealing with the matter one lawyer at a time, with scant progress.
I cast about for a way to address a wider audience: CLE? Newsletter? What would work best? One morning, enjoying one of my usual blog-readings, it occurred to me that, if I could build up a readership, I could get the word out more effectively. A blog could do that. And if the scope were widened enough to include many of the things I have learned over 40 years of practicing law and judging, then it might just be worthwhile.
So I started Chancery12, with “News and helpful information about practice in the 12th Chancery Court District, Place 2.” Later, I broadened the scope further, simply focusing on “Better Chancery Practice” in our Mississippi courts.
The result is that I have heard from lawyers and judges across the state (and even in other states) who have found this useful and helpful. Nearly 300 of you receive updates via email. There are 400-600 visitors per day, M-F.
I enjoy hearing from everyone. I don’t always have time to address your comments, emails and even correspondence. I hope that does not offend anyone.
The blog comments are always a good source of thoughful (sometimes humorous) interchange of views. If you have stood on the sidelines reluctant to comment, I encourage you to jump in.
I reckon we’ll keep on going a while.
Reprise: Probating a Lost Will or a Copy
May 29, 2014 § 2 Comments
Reprise replays posts from the past that you may find useful today …
LOST WILLS
January 5, 2011 § 2 Comments
Does it ever happen to you that an heir shows up in your office and says something to the effect that “Mom says you kept the original of dad’s will. All we have is this [dogeared, coffee-stained, footprinted] copy,” and hands you a bedraggled handful of papyrus? Well, if it hasn’t, it will.
Of course, you did not retain the original [for you younger attorneys: NEVER keep the original of your client’s will]. So what will you do with this forlorn sheaf?
You will probate it. Yes, probate it. But it’s only a copy, you say; and the original will is required to be produced (See, MCA § 91-7-5, -7 and -31). True. But it is possible to probate a lost or destroyed will.
In the case of Estate of Mitchell, 623 So.2d 274, 275 (Miss. 1993), the court said:
The law regarding admission into probate of a lost will is discussed at length in Warren v. Sidney’s Estate, 183 Miss. 669, 184 So. 806 (1938). Sidney’s Estate sets forth the elements necessary to probate a copy of a lost will are: (1) the proof of the existence of the will; (2) evidence of its loss or destruction; and (3) proof of its contents. Sidney’s Estate, 183 Miss. at 675-76, 184 So. at 807. A fourth element has been added: (4) that the testator did not destroy the will with the intent to revoke it. Robert A. Weems, Wills and Estates § 7-17, p. 216 (1983). This last element, which is most central to this case, arose from the theory that when a will cannot be found following the death of a testator and it can be shown that the testator was the last person in possession of the will, there arises a rebuttable presumption of revocation.
Where a will which cannot be found following the death of the testator is shown to have been in his possession when last seen, the presumption is, in the absence of other evidence, that he destroyed it animo revocandi … 57 Am.Jur., Wills, § 551. Adams v. Davis, 233 Miss. 228, 237, 102 So.2d 190, 193 (1958); Phinizee v. Alexander, 210 Miss. 196, 200, 49 So.2d 250, 252 (1950); Horner, Probate Prac. & Est. § 79 (4th ed.). This presumption extends to all duplicate copies, even executed duplicates. Adams, 233 Miss. at 237, 102 So.2d at 194; Phinizee, 210 Miss. at 199, 49 So.2d at 252; Horner § 79.
The proponent of the will must prove each of these elements by clear and convincing evidence. See Estate of Leggett v. Smith, 584 So.2d 400, 403 (Miss.1991); Estate of Willis v. Willis, 207 So.2d 348, 349 (Miss.1968); Adams, 233 Miss. at 237-38, 102 So.2d at 194. (“The intent to revoke must appear clearly and unequivocally.” Sidney’s Estate, 183 Miss. at 676, 184 So. at 807. “The policy of the law requires such contents to be established by the clearest, most convincing and satisfactory proof.” Robert A. Weems, Wills and Estates § 7-17, p. 216 (1983).
Your petition will have to recite on personal knowledge of the petitioner, or supported by affidavits on personal knowledge, all four of the required factors.
You should probate the lost or destroyed will in solemn form. To do otherwise gives an unfair advantage to the proponent of the missing document. Probate in solemn form also seals off the protests of other interested parties and, as a practical matter, takes you directly to the hearing with notice that you will likely wind up in anyway.
At hearing, you will need to prove your four elements by clear and convincing evidence.
- Proving the existence of the will is not usually much of a problem. You will have that copy, or, if no copy is available, someone with personal knowledge can testify that the will did exist. MRE 1001-1008 would appear to govern the issue. As Rule 1008 states, the issue is for the trier of fact to determine.
- Loss of the will can be proven by testimony that the decedent kept his or her papers in a particular place and that an exhaustive search has not turned it up, or that the cabinet where the will was kept was destroyed by fire, or that it was in a repository that has now vanished.
- The “Dead Man’s Statute” has been supplanted by MRE 803(3), so proof of its contents should not be a major obstacle, so long as there is a witness with personal knowledge.
- And the same hearsay exception would apply to the testator’s destruction or intended revocation.
An interesting wrinkle appears in an ancient case, Vining v. Hall, 40 Miss. 83 (Miss. Err. & App. 1866), that is still good law. In Vining, there was conflicting and inconclusive testimony about the contents of the lost or destroyed will, but no disagreement that it included a revocation clause expressly revoking all prior wills. The court held that the revocation clause was effective despite the fact that the dispositive terms of the will could not be determined. See, Weems, Wills and Administration of Estates in Mississippi, Third Ed., § 7.15.
Contested Chancery Races
May 12, 2014 § Leave a comment
In the general election November 4, 2014 …
Eighth District (Hancock, Harrison and Stone), Place 2
- C. Stephen Benvenutti
- Jennifer Schloegel (incumbent)
Eighth District, Place 3
- Ronnie Cochran
- Sanford R. “Sandy” Steckler (Incumbent)
Eleventh District (Holmes, Leake, Madison and Yazoo)
- Barbara Ann Blunston
- Robert G. Clark, III
To fill the seat being vacated by Chancellor Janace Harvey-Goree
Thirteenth District (Covington, Jefferson Davis, Lawrence, Simpson and Smith), Place 1
- J. Larry Buffington
- David Shoemake (Incumbent)
Thirteenth District, Place 2
- Mary K. Burnham
- Deborah Kennedy
- Gerald M. Martin
To fill the seat being vacated by Chancellor Joe Dale Walker
Sixteenth District (George, Greene and Jackson), Place 1
- D. Neil Harris (incumbent)
- Paula S. Yancey
Sixteenth District, Place 3
- G. Charles “Chuck” Bordis (incumbent)
- Michael L. Fondren
- Gary L. Roberts
Eighteenth District (Benton, Calhoun, Lafayette, Marshall and Tippah), Place 1
- Glenn Alderson (incumbent)
- Carnelia Pettis Fondren
- Tina Duggard Scott
Eighteenth District, Place 2
- Helen Kennedy Robinson
- Robert Q. Whitwell (incumbent)
Is Our Current Appellate Court System the Best We Can Do?
May 5, 2014 § 7 Comments
Should we split our Court of Appeals between civil appeals and criminal appeals? That’s one question raised by Anderson at this link.
Which Way to go on Proposed Findings?
April 29, 2014 § 16 Comments
Compare the language:
This from the COA on April 8, 2014, in Burnham v. Burnham:
¶15. Usually, the scope of review of a chancellor’s findings is limited in domestic-relations cases. “The chancellor’s determinations will only be reversed when they were manifestly wrong [or] clearly erroneous, or when the chancellor applie[d] an incorrect legal standard.” Greenwood v. Young, 80 So. 3d 140, 145 (¶12) (Miss. Ct. App. 2012). “Questions of law are reviewed de novo.” Marin v. Stewart, 122 So. 3d 153, 156 (¶8) (Miss. Ct. App. 2013).
¶16. In the case at hand, the trial court essentially adopted the proposed findings of fact and conclusions of law [PFFCL] submitted by Dana. We have previously held that “[w]here the chancellor adopts, verbatim, findings of fact and conclusions of law prepared by a party to the litigation, this Court analyzes such findings with greater care[.]” Brooks v. Brooks, 652 So. 2d 1113,1118 (Miss. 1995) (citing OmniBank of Mantee v. United S. Bank, 607 So. 2d 76, 83 (Miss.1992)). Further, “the deference normally afforded a chancellor’s findings of fact is lessened.” Id. This does not mean that the appellate court is the fact-finder, nor does it change ourstandard of review. This means that the Court will take a closer look to make sure that our law is followed as interpreted by our courts. Chancellors are charged with the duty of being independent fact-finders, and the adoption of an opinion written by one of the attorneys is not the finding of the chancellor based on his independent reasoning, even though the chancellor may have a similar opinion.
And this from the MSSC in Bluewater Logistics LLC v. Williford, 55 So.3d 148, 157 (Miss. 2011):
I. This Court is not required to apply a different level of deference to the chancellor’s factual findings.
¶24. We review a chancellor’s legal conclusions de novo; that is, we reach our own conclusions as to the applicable law.FN2 But we ordinarily accept a chancellor’s factual findings unless—given the evidence in the record—we conclude that the chancellor abused his or her discretion, and no reasonable chancellor could have come to the same factual conclusions. FN3
FN2. Corporate Mgmt., Inc. v. Greene County, 23 So.3d 454, 459 (Miss.2009).
FN3. Limbert v. Miss. Univ. for Women Alumnae Ass’n, Inc., 998 So.2d 993, 998 (Miss.2008) ( citing Hamilton v. Hopkins, 834 So.2d 695, 699 (Miss.2003)).
¶ 25. But as to our review of the factual findings in this case, Defendants argue we must apply a different and higher standard of review because the chancellor adopted, verbatim, the plaintiff’s proposed findings of fact and conclusions of law. That may be so, and probably is—Williford responds to the argument without denying it. But we cannot compare the two documents, because Williford’s proposed findings of fact and conclusions of law were not included in the record. Nevertheless, we shall address the issue.
¶ 26. When a chancellor adopts verbatim, or nearly verbatim, a party’s proposed findings of fact, our precedent provides that we should apply “heightened scrutiny” FN4 to the chancellor’s findings of fact. This rule is fairly well-settled and accepted. Yet our precedent provides little guidance as to how we are to comply with our duty to “heighten” our scrutiny—which could be read to require us to review a case more carefully or, perhaps, to apply a different, more stringent standard to our review of the facts.
FN4. See, e.g., In re Estate of Grubbs, 753 So.2d 1043, 1046–47 (Miss.2000); Brooks v. Brooks, 652 So.2d 1113, 1118 (Miss.1995).
¶ 27. But our duty already requires us carefully to scrutinize every case, so we reject the former. And as to the latter, if “heightened scrutiny” requires us to abandon the reasonable-chancellor standard and apply a different, higher standard, we find no caselaw or other authority explaining that different standard, or suggesting how it should be applied.FN5 The dissent suggests that heightened scrutiny requires us to review a chancellor’s findings with “a heightened ‘sensitivity to the possibility of error….’ ” FN6 Yet our duty requires us in every case to be as careful and as sensitive to error as we can be, and we cannot condone a standard that allows us to be less sensitive to error in one case than in another.
FN5. Some possibilities include elevating the standard from “reasonable chancellor” to “very reasonable chancellor,” or from “manifest error” to “catastrophic error.”
FN6. Dissent at ¶ 80 citing In re Estate of Grubbs, 753 So.2d 1043, 1048 (Miss.2000).
¶ 28. In Rice Researchers, Inc. v. Hiter, FN7 this Court provided the following interesting insight into the issue:
FN7. Rice Researchers, Inc. v. Hiter, 512 So.2d 1259 (Miss.1987).
Case complexities and crushing caseloads necessitate substantial reliance upon the submissions of trial counsel. Still, the judge is a judge and not a rubber stamp. He may not be able to afford the luxury of practicing his culinary art a la the Cordon Bleu. He should remember, however, that his oath precludes a McDonald’s approach to the judicial process. Where the trial judge wholly abdicates his judicial responsibilities—where, as it were, he abuses his discretion—we doubtless have authority to intervene. Here the Chancery Court quite properly requested that each party submit proposed findings of fact and conclusions of law. These submissions were considered at an adversary hearing. Thereafter, the Court considered RRI’s motion to amend findings. These steps, coupled with the fact that this case is quite complex (in spite of its simplicity), leave us convinced that the Chancery Court acted within its authority. As indicated above, however, our obligation of appellate deference to such findings is necessarily lessened.FN8
FN8. Id. at 1266.
¶ 29. The Hiter Court’s “less deference” standard, the Brooks Court’s “heightened scrutiny” standard, and the dissent’s “heightened sensitivity” standard all suggest that this Court—if not completely, then to some unspecified degree—must become the finder of fact, imposing (again, to some degree) our own view of the facts. But that would be a tricky — given that we never saw or heard the witnesses.
¶ 30. One thing is clear. Applying a “heightened-scrutiny” or “lessened-deference” standard would require us to abandon the traditional standard (accepting a chancellor’s factual findings that the evidence supports), and employ some different standard. And although the new standard of review has been named (“heightened-scrutiny” or “less-deference”), this Court has yet to explain how it is to be applied.
[4] ¶ 31. While it is true that the United States Supreme Court has adopted various levels of scrutiny for particular kinds of cases—for instance, “intermediate-scrutiny” review of gender-based classifications FN9—the Court explains the difference in each level, and provides a specific test for its application.FN10
FN9. Craig v. Boren, 429 U.S. 190, 218, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976).
FN10. Intermediate scrutiny in gender-based discrimination cases requires that the challenged law or policy further an important government interest in a way that is substantially related to that interest. Id.
¶ 32. If we are to adopt and apply a “heightened-scrutiny” standard, simple fairness and justice requires us to publish that standard—in more than name—to the bench and bar. And because that has not been done—and because we decline to do it today—we shall continue to apply the familiar abuse-of-discretion standard to a trial judge’s factual findings, even where the judge adopts verbatim a party’s proposed findings of fact. And should a party suspect and suggest that the judge’s factual findings are somehow tainted or untrustworthy, we hold that the party—upon proper proof—may seek a new trial.
¶ 33. In the case before us today, we find not one sliver of evidence that the chancellor’s factual findings were untrustworthy or suspect. His bench opinion discussed his factual findings. And at the hearing on post-trial motions, he engaged in lengthy discussions with counsel concerning his view of the facts. Finally, his factual findings—whether or not identical to those submitted by the plaintiff—were supported by substantial evidence. So we are unable to say he abused his discretion, and this issue is without merit.
I could have sworn that Bluewater Logistics signalled an end to the “heightened scrutiny/less deference” concept, but that’s apparently not how the COA sees it.
With all due deference to the COA, I am of the opinion that this statement from Burnham is a non sequitur: “Chancellors are charged with the duty of being independent fact-finders, and the adoption of an opinion written by one of the attorneys is not the finding of the chancellor based on his independent reasoning, even though the chancellor may have a similar opinion.” But what if the PFFCL is not only similar to, but entirely, accurately refIects my own conclusions? If the PFFCL submitted by one of the attorneys matches my conclusions on the facts and my opinion of the law, then why does it not reflect my independent reasoning? Does a change in words used to express the reasoning change the reasoning from dependent to independent, even when the conclusions and rationale are the same?
What about a situation where the trial judge is persuaded by the argument of counsel and adopts her legal reasoning and applies it in the case? Is that an impropriety that justifies heightened scrutiny or less deference?
I am with Justice Dickinson on this. Lawyers may not like it because it looks like the judge favored one side over the other, but actually that’s what the appearance is whenever the judge rules for one side over the other. It’s the nature of the thing. And, besides, if the high court wants to outlaw verbatim adoption of one side’s PFFCL because it could give an appearance of impropriety, that would be logical. But to conclude that adoption of one side’s PFFCL does not reflect the judge’s independent reasoning, thus justifying and triggering heightened scrutiny and less deference, does not make sense to me.
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