Findings on a Rule 60 Motion
December 17, 2014 § 4 Comments
Aside from the remarkable fact that the December 9, 2014, COA case of Pride v. Pride involved twelve (12) pro se appellees, the decision also makes the notable point that findings of fact and conclusions of law are not necessarily required in the court’s ruling on a R60 motion.
This is a partition case involving 150 acres, more or less, in which siblings disagreed over the division. The chancellor ordered that a house and one acre be sold at auction, and six years later two brothers filed a R60 motion for relief from judgment, which the chancellor denied. The brothers also asked the court for specific findings of fact and conclusions of law, per R52(a), which the chancellor also denied. The brothers appealed.
The order for sale of the home had been the subject of a previous appeal, which was found to be without merit in Pride v. Pride, 60 So.3d 208 (Miss. App. 2011). The COA characterized the six-year after-the-fact R60 motion in this case as ” … nothing more than his unsupported assertion …” that he (one of the brothers, William) was entitled to some relief. He did not invoke any of the legitimate bases of R60, and he offered no evidence to support his claims. The court found no merit to his R60 argument.
As for his claim that the chancellor should have made specific findings of fact and conclusions of law, Judge Roberts, for the majority, said this:
¶10. Next, William claims that the chancellor erred when he did not provide written findings of fact and conclusions of law related to the decision to deny the Rule 60(b) motion. Rule 52(a) of the Mississippi Rules of Civil Procedure provides that “[i]n all actions tried upon the facts without a jury[,] the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly.” If a party requests findings of fact and conclusions of law, and the trial court does not enter them, an “appellate court must consider the effect of the trial court’s missed responsibility, and overwhelming evidence may be required as a condition for affirmance.” Bodne v. King, 835 So. 2d 52, 57 (¶15) (Miss. 2003). “Whe[n] . . . a case is hotly contested and the facts [are] greatly in dispute[,] and whe[n] there is any complexity involved therein, failure to make findings of ultimate fact and conclusions of law will generally be regarded as an abuse of discretion.” Tricon Metals & Servs. Inc. v. Topp, 516 So. 2d 236, 239 (Miss. 1987). However, a trial court is only obligated to enter requested findings of fact when an action has been “tried upon the facts without a jury.” Harmon v. Regions Bank, 961 So. 2d 693, 700 (¶24) (Miss. 2007).
¶11. The chancellor was not required to view the allegations in William’s Rule 60(b) motion as though they were true. William’s Rule 60(b) motion was not an action “tried upon the facts,” because it did not include anything but allegations, and no facts were ever presented. William fails to explain how the chancellor could possibly find any facts after he failed to present any. And the chancellor’s decision to deny William’s Rule 60(b) motion did not result in the entry of a judgment. Therefore, the chancellor was justified in summarily denying William’s request for written findings of fact and conclusions of law. It follows that we find that the chancellor did not abuse his discretion, and there is no merit to this issue.
The axis upon which the COA’s decision turned was the absence of any evidence upon which the court was asked to rule. In essence, the brother(s) were asking the court for a do-over on their already-lost position.
One way to approach the rules is through a literal reading and rigid application: the rule says it, so do it. The better approach, to me, is to consider what is to be accomplished and why. Here, findings of fact and conclusions of law would be nothing more than a rehash of what had been done before, since the brothers presented nothing new. It would have been an empty exercise that might have planted the possibility of error in the record, which may be just what they had in mind to further delay this already-lengthy litigation. As MRCP 1 says, “These rules shall be construed to secure the just, speedy, and inexpensive determination of every action.”
In the COA’s recitation of the case’s history, the quotes from Pride, supra, repeatedly refer to the William’s 2006 motion for a JNOV (directed verdict) as to the court’s order for a partition in kind. <SIGH> It’s a lamentable subject I posted about here recently.
A Double Nightmare for Counsel
December 16, 2014 § Leave a comment
Sometimes we assume something and it makes us say “Ouch.”
Gregory Dailey and his ex, Tracie McBeath, were entangled in child-support-contempt litigation. Hearing had been continued a time or two, and Gregory’s attorney had filed a motion to compel discovery, noticed for the most recent trial setting, and both counsel agreed that the case should be continued. That’s where things went haywire.
Here’s how Judge Barnes, in the COA case of Dailey v. McBeath, issued November 25, 2014, described the situation:
¶5. A hearing on the petition was held April 19, 2012. Tracie’s counsel asserted a motion to compel discovery, claiming that when she had finally received an answer from Gregory a week prior to the hearing, there was no proper documentation (tax returns, check stubs, etc.) included. She also claimed that Gregory had purposely eluded investigators, giving them false information, and that he was hiding assets. Gregory failed to appear at the hearing. His counsel, however, was present and acknowledged that Gregory had not filed tax returns for the last seven years. Gregory’s counsel complained that counsel opposite had not been communicating with him and that he had been unable to depose Tracie, even though he had been trying for months.
So, Gregory is a no-show, possibly because he and his attorney assumed that a simple order addressing the discovery issues with a resulting continuance would be the net result. But, that assumption proved to be painfully incorrect, as Judge Barnes went on to describe:
¶9. Gregory’s counsel made an appearance on his behalf at the April 19, 2012 hearing, evidently expecting that the chancery court was only going to address the motions for discovery and grant the parties’ motions for a continuance. However, the chancellor refused to continue the proceedings and denied both parties’ motions. Although counsel argued that Gregory was located three hours away in Madison, Mississippi, as were the attorney’s files for the case, the chancellor advised the parties to prepare for trial and to attempt to reach an agreement. He admonished:
I’m going to continue with the case and you have no authority to release your client. I have that trouble in other cases and it’s my policy to go forward. . . . And I’m not going to play games with discovery. . . . Y’all should have cooperated with each other. I’m going to try the case, so just get your stuff ready.
. . . .
Now, what I will do is give y’all a chance to visit to see if you can resolve the matter. And it may be that you can talk to your client by phone. I will not tolerate from either one of you all the failure to cooperate and discuss a case.
¶10. On appeal, Gregory argues that the chancellor’s denial of a continuance, which gave his counsel only seventeen minutes to prepare for trial, was “an inherent abuse of discretion” and that he was “ambushed” and “unable to defend himself.” A chancellor’s decision to deny a motion for a continuance is reviewed for abuse of discretion. Sizemore v. Pickett, 76 So. 3d 788, 794 (¶14) (Miss. Ct. App. 2011) (citing Robinson v. Brown, 58 So. 3d 38, 42 (¶10) (Miss. Ct. App. 2011)). Absent a finding of prejudice, we will not reverse the denial of a continuance. Robinson, 58 So. 3d at 42 (¶10). [Footnote omitted]
¶11. While the chancellor’s decision to proceed with the hearing without Gregory present may appear harsh, we find that it was not an abuse of discretion. Gregory and his counsel should have been prepared for the possibility that the motions for a continuance would be denied. Gregory was obviously aware of the hearing, as his counsel was in attendance to represent him. Gregory does not contend that he was unable to attend the hearing, and he knew that he owed the prior judgment to Tracie and that the hearing had been scheduled for several months. Furthermore, the record shows that the chancery court had previously granted a continuance on August 17, 2011, and the chancellor noted at the hearing that the case had been set since February 21, 2011.
¶12. Consequently, we find any prejudice suffered by Gregory due to the chancellor’s decision to proceed with the hearing was of Gregory’s own making, and the chancellor did not abuse his discretion in denying the motions for a continuance.
A few nuggets sifted from the ashes:
- Never wait until the day of trial to bring unresolved discovery disputes to the court’s attention.
- Never assume that you will be granted a continuance, even when both sides ask for it.
- Never, ever, excuse your client from being present for a matter set for hearing by court order.
- Never argue with a straight face that you are being “ambushed” when the case has been set for 14 months.
Remember two important principles:
- The older a case becomes, the less likely the chancellor will be to grant motions that would have the effect of prolonging it, and
- If you insist on assuming something, be prepared to deal with the consequences when your assumption proves to be incorrect.
R.I.P. Chancellor Ray H. Montgomery
December 15, 2014 § 6 Comments
Retired Chancellor Ray H. Montgomery died Sunday, December 14, 2014.
A Remand Without a New Trial
December 15, 2014 § Leave a comment
I posted here a few months ago that on remand the parties are restored to the position that they occupied before entry of the reversed judgment. A new trial is the norm, and even amended pleadings that change the scope of the proceedings from the original action are allowed.
That post also pointed out that, by agreement of the parties, the court may render a judgment on remand using the original record. The latest example of that is the case of Wilson v. Davis, a COA decision, handed down November 18, 2014.
In this case, the mother of a minor child had died, and the maternal grandmother refused to surrender the child to the father. The father brought an action for custody, which the chancellor treated as a modification, and not as an original action. The chancellor found for the grandmother, and the father appealed. The COA reversed and remanded, concluding that it was error for the trial court to try the case by the standards of a modification rather than as an original action.
The second time around, the chancellor used the record from the original trial to render a decision applying the proper standard for adjudication of custody. That’s what Judge Roberts tells us in his dissent:
¶30. Upon remand, the chancery court did not hold a new hearing or take new evidence in the matter. It modified its original opinion and found that the natural-parent presumption had been overcome because [the father] had abandoned [the child] and he had engaged in immoral conduct; it then applied an Albright analysis; and it found that [the maternal grandmother] should retain custody of [the child] because it was in [the child’s] best interest.
Nobody raised the issue whether this procedure was proper in arriving at the trial court’s adjudication. Neither the majority nor the dissent raised the question on its own. It does not appear from the opinion that either party asserted the issue in a R59 motion for a new trial, which would have been the most efficacious way to assert it, in my opinion.
How to proceed on remand is something to which you should devote some thought before you have to deal with it. The outcome for the father in this case might have been dramatically different if he had used his knowledge of what the chancellor viewed as the weak points in his case, and reshaped his witness list and evidence to present a case that overcame them. Instead, he allowed the chancellor to adjudicate the case on the record that she had already used to find against him.
What it takes to Prove Habitual Drunkenness
December 11, 2014 § 9 Comments
Nikki Lee charged her husband, Chris, with habitual drunkenness. The chancellor found the proof supported the claim, and granted her a divorce on that ground. Chris appealed.
In Lee v. Lee, decided by the COA on November 25, 2014, the court affirmed the chancellor:
¶6. Chris asserts that it was error for the chancellor to grant Nikki a divorce on the ground of habitual drunkenness. Chris argues that Nikki did not meet her burden in proving habitual drunkenness. Alternatively, Chris argues that Nikki’s knowledge of his drinking habits prior to their marriage barred the suit.
¶7. On appeal, Chris argues the chancellor erred in finding sufficient grounds for divorce. “A court may grant a divorce on the ground of habitual drunkenness if the plaintiff proves that: (1) the defendant frequently abused alcohol; (2) the alcohol abuse negatively affected the marriage; and (3) the alcohol abuse continued at the time of the trial.” Turner v. Turner, 73 So. 3d 576, 583 (¶30) (Miss. Ct. App. 2011).
¶8. In Sproles v. Sproles, 782 So. 2d 742, 744-45 (¶¶4,7) (Miss. 2001), the court found that the husband’s habit of drinking a case of beer each night, which caused him to become abusive and critical, constituted grounds for divorce under habitual drunkenness. On the other hand, in Culver v. Culver, 383 So. 2d 817, 817-18 (Miss. 1980), the court found that the husband’s habit of drinking four to five beers a night that did not negatively impact the marriage failed to support a divorce under habitual drunkenness.
¶9. At trial, Nikki testified that Chris often made negative comments about her weight. While drunk once, Chris told Nikki that he only finds her attractive and wants to have sex with her when he is intoxicated. On a separate occasion, Chris woke Nikki by urinating on her leg, and, when Nikki protested, Chris started laughing. Chris testified that he had never heard of this incident until trial. On another night, Chris and Nikki got into an argument, and Chris took Will into the house so Nikki could cool off outside. When Nikki decided to go back inside, she found the door locked. After she called Chris and knocked on the door with no answer, she was forced to crawl inside through a back door. She found Chris passed out on their waterbed, with Will face down and wedged between the corner of the bed.
¶10. Nikki testified that Chris often drank five to six beers per day. Chris worked offshore for extended periods of time. When he would return home, he would always have alcohol in his hand. Nikki also testified that on several occasions, Chris would pass out drunk and not remember anything that happened. Finally, Nikki testified that being with Chris after awhile made her depressed, and when they separated, she felt happy again.
¶11. Chris contends that he did not drink as much as Nikki claimed he did. He argues that because Nikki’s testimony was not corroborated by any other witness, it is “wildly inconsistent at best.” However, Nikki’s father, Thomas Godleske, testified that on an icefishing trip Chris drank so much that he passed out in a stranger’s vehicle. Further, Chris testified that he continued to drink at the time of the trial.
¶12. Where there is conflicting testimony, the chancellor is the trier of fact and adjudicates the credibility of each witness. Bowen v. Bowen, 982 So. 2d 385, 395 (¶42) (Miss. 2008). “An appellate court is to affirm findings of fact by chancellors in domestic cases when they are ‘supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.’” Robison v. Lanford, 841 So. 2d 1119, 1122 (¶9) (Miss. 2003) (quoting Holloman v. Holloman, 691 So. 2d 897, 898 (Miss. 1996)).
¶13. In review of the record, we find that the chancellor had sufficient evidence to grant Nikki a divorce on the ground of habitual drunkenness: Chris’s alcohol consumption, combined with the negative impact it had on the family, and his continued drinking at the time of trial. Additionally, the chancellor, as the trier of fact, was in the best position to determine each witness’s credibility and to weight the conflicting testimony. Because the evidence supports the chancellor’s findings, we find that he did not commit manifest error in his findings on this issue.
The corroboration in this case seems to be on the weak side, yet it was strong enough to convince both the chancellor and the COA. The state of corroboration highlights an important consideration: Habitual drunkenness is not an easy case to prove because the offending behavior takes place in the privacy of the couple’s home, with few, if any, witnesses other than the parties. The task is made more difficult by the fact that the burden of proof is by clear and convincing evidence.
Negative impact on the other spouse and the resulting havoc on the household are key items of proof. Don’t fail to gather witnesses who can help establish those points.
And don’t overlook that habitual use of alcohol that induces nasty behavior, even without drunkenness, can be HCIT if it has a negative effect on the offended party.
Splitting the Baby
December 10, 2014 § 1 Comment
It is fundamental that a judgment rendered by a court without subject matter jurisdiction is void. Not voidable, but void ab initio. Therefore, it is critical for a court to ensure that it has subject matter jurisdiction before it proceeds to final judgment.
The MSSC confronted this principle in the case of Bronk v. Hobson, handed down December 4, 2014, in which the court was called upon to decide whether, in 1999, the County Court had jurisdiction to award custody in a paternity action. In a 5-4 decision the court ruled that county courts did not have such jurisdiction in 1999, and that, therefore, the 1999 judgment awarding custody was void.
Before going further, I have to note that the MSSC’s ruling directed that the case be transferred to Chancery Court. Since this is a Lauderdale County case, the court’s holding might result in the case being assigned to me, so I am limiting my comments to the jurisdictional questions in child custody cases in general, and am making no comment on the merits of the custody case between these parties in particular.
Chancery court jurisdiction is created by the Mississippi Constitution, which vests “full jurisdiction” over minor’s business in chancery courts. County court jurisdiction is created by MCA 9-9-21, which vests the county courts with ” … jurisdiction concurrent with … chancery courts in all matters of … equity wherein the amount of value of the thing in controversy is $200,000 or less … ”
The majority in Bronk decided that county court jurisdiction derived from 9-9-21 rests on matters only for which the value can be quantified in terms of dollars. The value of child custody matters can not be determined monetarily, so county court lacks jurisdiction.
The dissent took the opposite tack, arguing that since the value of child custody is not quantifiable, it is zero, which is less than $200,000, and, therefore, is within county court jurisdiction.
As between the two radically different approaches, the majority actually represents the reality of how county courts have traditionally exercised jurisdiction in equity matters. That’s because there are two sources of county court jurisdiction: one is 9-9-21; the other is specific grants of jurisdiction such as the statute authorizing county courts to adjudicate paternity and its 2013 amendment that conferred jurisdiction on county courts ” … for the enforcement of orders awarding custody … ” in paternity matters. In my experience, county courts have limited their exercise of concurrent equity jurisdiction to matters specifically granted by statute. That’s why you don’t see divorces being granted, or adverse possession being decreed, or estates and guardianships being administered, in county court. Thus, by practice, 9-9-21 has not been applied as a blanket grant of concurrent jurisdiction with chancery court.
The practice reflects the legislature’s approach. If the legislature had intended 9-9-21 to be a sweeping grant of co-jurisdiction with chancery court in all matters without regard to money value, then why did the legislature go to the trouble to amend the paternity statute to grant jurisdiction to county courts over what had been up to that point a purely chancery matter? If 9-9-21 were authority enough, then the statute was unnecessary. The same holds true with the 2013 amendment. I think the answer is that county court is purely a creature of statute, and its jurisdiction, which is not constitutionally derived, as is chancery’s, must be defined by the legislature. The legislature recognizes this, and defines that concurrent jurisdiction by express and specific statutory grants.
A legitimate concern of the MSSC is to construe legislation in such a way as to clarify the law so as to eliminate uncertainty and ambiguity. In my opinion, the majority and dissent in Bronk lead to different results in this regard.
- The majority opinion in Bronk makes it clear that county courts lacked jurisdiction over child custody in paternity actions before the 2013 amendment. It offers the clarification that county court’s concurrent jurisdiction is limited to matters that can be monetarily quantified.
- The dissent opens the door to the possibility that any chancery matter can be brought in chancery or county court, since it says that adjudications like custody determination are within the county court’s $200,000 limit. The dissent does not limit its scope to custody solely to paternity actions. Any matter that can not be quantified would fall within the $200,000 limit. That would, in essence, extend county court jurisdiction to all other chancery matters, because almost all chancery relief can not be calculated in terms of dollars. True, monetary relief is granted in chancery, but much of the relief has no dollar value. What, for instance, is the exact dollar value of the grant of a divorce, or an adoption, or the determination of a landline dispute, or confirmation of title, or adverse possession, or confirmation of title, or a guardianship of the person only, or a determination of heirship, or grandparent visitation, or a mental or drug commitment? And these are but a few examples. How do we determine their value so as to make that subject-matter-jurisdiction determination? Is each case evaluated separately? To open that door would be to create the possibility of endless arguments over jurisdictional limits and which court is most appropriate. It would encourage forum shopping. It would create uncertainty and embed questions about subject matter jurisdiction in every case, increasing the numbers of appeals. None of these type cases have ever, to my knowledge been heard in county court. We have to ask ourselves whether all of these kinds of cases should be brought in county court I the first place? Is that what is best for litigants? Our court system has never operated that way in my experience. And experience is a good teacher. What has worked well over time often proves to be the best approach.
The majority opinion offers more certainty as to where subject matter jurisdiction lies than does the minority. Subject matter jurisdiction should have clear and unquestionable lines drawn. Lawyers and judges should not have to guess about whether the court does or does not have jurisdiction. It does no one any good to litigate a matter only to have it set aside 15 years later — as in Bronk — for lack of jurisdiction. For that reason, the appellate courts should always lean toward what makes the jurisdictional boundaries between our courts as unquestionable and clear as possible. We already have a dichotomy of case law on the boundary between chancery and circuit that should not be further compounded with confusion between chancery and county.
Justice Waller’s separate opinion makes the practical point that it is “nonsensical and contrary to the intent” of the paternity statute for a court to be able to adjudicate paternity, and yet be unable to adjudicate custody in the same action. Yet, the MSSC already ruled out that approach in Griffith v. Pell, 881 So.2d 184, 187-188 (Miss. 2004), when it affirmed that COA’s ruling that paternity cases are not to be used as a forum for custody determinations.
Finally, I think it needs to be taken into consideration that child custody is a weighty matter. The cases are too numerous to mention in which our appellate courts have acknowledged the complex, difficult, and close questions that chancellors must resolve in determining the issue of what is in the best interest of a child. Resolution of custody issues involves analysis of the Albright factors in original cases, analysis of material change, adverse effect, and best interest with Albright analysis in modifications, and a determination of application of the natural parent presumption in third-party custody cases. Habeas corpus, visitation, grandparental visitation, child support, and joint-custody arrangements are other matters that are affected by custody determinations. Chancellors have developed considerable expertise over the years in all of these matters, and understand how serious and life-affecting are such decisions. Why should we want to burden other courts with that responsibility when we already have a wealth of wisdom and expertise on that subject and so many others like it in our chancery courts?
It remains to be seen how the high court will interpret and apply the language of the 2013 bill granting county courts jurisdiction ” … for the enforcement of orders awarding custody … ” in paternity actions. That language is not entirely unambiguous to me. Until then, this Bronk decision is a welcome beacon of certainty for trial courts and lawyers navigating in the shoal waters of jurisdiction between the two courts.
Affirmative Defenses in Divorces
December 9, 2014 § Leave a comment
MRCP 8(c) requires that you plead in your responsive pleadings any matters that constitute “an avoidance or affirmative defense.” Specifically listed in the body of the rule are matters such as statute of limitations, accord and satisfaction, res judicata, etc.
Some of those listed defenses may be available in chancery matters such as contract disputes, land matters, and business dissolution, but they have no application in divorce, as I posted here before; nonetheless, some lawyers plead them in mechanical fashion, raising some humorous implications.
In a divorce case, there are some well-established affirmative defenses to grounds for divorcethat are not listed in R8, but that need to be pled in order to invoke them. They include:
- Prior knowledge. This applies where the spouse knew, for instance, that the wife was pregnant by another man when he married her, and yet married her anyway. Or that the wife knew before the marriage that the husband was a drug addict, and went ahead with the marriage despite the knowledge.
- Ratification and condonation. Two closely related concepts. A party gives up a ground by continuing to live with the other after knowledge of fault. These defenses have somewhat limited application in HCIT.
- Recrimination. An archaic defense no longer favored in our law, by which the proponent may be denied a divorce if he is guilty of a ground for divorce.
- Reformation. Applicable primarily in habitual drunkenness and drug use cases, where the accused party has quit abusing the substance.
- Connivance and collusion. Where the parties have conspired either for one to allow the other’s wrongful conduct so as to create a ground, or where the parties have agreed to perjure themselves to do so.
- Res judicata. Same parties and same issues in a previous matter that was reduced to a final judgment.
A comprehensive look at these and several lesser-known defenses is found in Professor Bell’s Mississippi Family Law, 2d Ed., § 4.03, pp. 99-104. If you practice any family law, and you don’t have a copy of her definitive treatise, you need to get one asap.
The clear and obvious thread running through the affirmative divorce defenses listed above is that they each are “an avoidance or affirmative defense” to a ground for divorce.
If you fail to plead affirmative defenses to grounds for divorce on behalf of your client, the only way you may present them at trial is if they are tried by consent. If, on the other hand, the other side objects, the judge will have to sustain the objection and exclude the testimony.
In the case of Lee v. Lee, decided by the COA on November 25, 2014, Nikki Lee charged her husband, Chris, with habitual drunkenness. He did not plead any affirmative defenses, but at trial he attempted to put on proof that Nikki knew when she married him of his drinking habits. Nikki objected, and the chancellor excluded the evidence, ruling that Chris had waived the defense by not pleading it affirmatively. Chris appealed.
Judge Griffis, for the unanimous court:
¶15. Condonation or antenuptial knowledge, as affirmative defenses, must be specifically pleaded or else the defenses are waived. Carambat v. Carambat, 72 So. 3d 505, 511 (¶27) (Miss. 2011) (citing M.R.C.P. 8(c); Ashburn v. Ashburn, 970 So. 2d 204, 212 (¶23) (Miss. Ct. App. 2007)). “Affirmative defenses that are neither pled nor tried by consent are deemed waived.” Ashburn, 970 So. 2d at 212 (¶23) (quoting Goode v. Village of Woodgreen Homeowners, 662 So. 2d 1064, 1077 (Miss. 1995)).
¶16. Chris did not raise condonation or antenuptial knowledge as an affirmative defense in his pleadings. However, parties may try an affirmative defense through implied consent. Mississippi Rules of Civil Procedure 15(b) provides:
When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon the motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.
See also Lahmann v. Hallmon, 722 So. 2d 614, 691 (¶15) (Miss. 1998).
¶17. In his order, the chancellor found that Chris had waived the affirmative defense of condonation, because he did not plead it as an affirmative defense. The chancellor ruled:
“Chris did not plead condonation as a defense in his pleadings. Therefore, to the extent that Chris may have been attempting to raise a defense of condonation, the Court finds that this defense has been waived.” The chancellor did not address a defense of antenuptial knowledge or if the parties tried condonation by express or implied consent.
¶18. From the record, there is no indication the parties agreed to try condonation or antenuptial knowledge by express consent. Therefore, the question remains whether the parties tried the issue through implied consent. While issues not raised in the pleadings may be tried by implied consent, the party relying on implied consent for an issue must demonstrate certain requirements.
¶19. First, in order to find the parties tried the issue by implied consent, this Court must determine if the parties knew “‘that a new issue was being litigated at trial.’” Mabus v. Mabus, 890 So. 2d 806, 814 (¶32) (Miss. 2003) (quoting Setser v. Piazza, 644 So. 2d 1211, 1217 (Miss. 1994)). Further, this Court will not find implied consent “where the ‘questions asked or the evidence presented at trial are relevant to the issues actually raised in the pleadings.’” Id. (citation omitted).
The court went on to analyze the record, and concluded that the issues had not been tried by implied consent, and the chancellor’s ruling was affirmed.
Next time you represent a Chris in a case similar to this, be sure to assert in your responsive pleading every matter you feel may raise a legitimate affirmative defense. I say legitimate because it seriously detracts from your credibility to plead things like accord and satisfaction, or assumption of risk, or injury by fellow servant in your answer to a divorce complaint. But it makes perfect sense to spell out with whatever label you apply that the other party had pre-marriage knowledge, or that he condoned the conduct, or any other matter that legitimately constitutes “an avoidance or affirmative defense.” You are not limited to the classic defenses, but the matter must be an actual, arguable defense.
If you represent a Nikki, object vociferously to any attempt to put on proof of unpled defenses. Protect your record. In this case, Nikki’s attorney protected her record, and the outcome was favorable to Nikki.
The Judge as Grand Inquisitor
December 8, 2014 § 1 Comment
Some judges sit through a trial impassively, leaving counsel to wonder whether hizzoner is paying any attention at all. Other judges take an active part, hurling questions like shrapnel through the courtroom. Still other judges fit somewhere in between the two extremes.
It’s a phenomenon I’ve posted about before here and here.
In the COA case SKL Investments v. Hardin and Torrence, decided November 18, 2014, the appellant charged that the chancellor erred when he “continually mischaracterized testimony [and] interrupted and veraciously ‘crossed’ [SKL’s] witnesses while protecting other witnesses in a manner that hindered [SKL’s] development of its case[.]” [My emphasis] I will leave it up to the reader to look up the definition of ‘veraciously.’
So, did the learned chancellor cross a line in his interrogation in this case? No, said the court, in an opinion penned by Judge Irving:
¶16. … While the record reveals that the chancery court interrogated witnesses and even sometimes interrupted witnesses as they testified, a contextual reading of the record also reveals that the chancery court did not “overstep[ ] its judicial authority” as SKL now claims.
¶17. The chancery court was within its right to “interrogate witnesses, whether called by itself or by a party.” Powell v. Ayars, 792 So. 2d 240, 248 (¶29) (Miss. 2001); see also M.R.E. 614(b). Certainly, it would have been “‘grounds for reversal if the [chancery court had] abuse[d] the authority to call or question a witness[,] abandoning [its] impartial position as a judge and assuming an adversarial role.’” Copeland v. Copeland, 904 So. 2d 1066, 1074 (¶27) (Miss. 2004) (citing Powell, 792 So. 2d at 248 (¶29)). However, “there [was] no requirement for the [chancery court] solely to be a silent observer.” Copeland, 904 So. 2d at 1074 (¶28) (citation omitted). After reviewing the record, we find that the chancery court did not abuse its discretion in its examination of the witnesses. This issue is without merit. Accordingly, we affirm.
There is the oft-cited apocryphal tale of the chancellor who interrupted and took over questioning of a witness, only to be interrupted in turn by counsel, who pleaded, “Judge, I don’t mind you questioning the witness, but please don’t lose the case for me.”
Another point: if you’re going to accuse the judge of going overboard, at least use an adverb that fits the conduct.
“Quote Unquote”
December 5, 2014 § 1 Comment
“God is striving with us. God is present, whether you just lost your mother to pancreatic cancer or your country just killed people at a wedding party in Yemen. God went to the camps, and God was lynched and shot and tortured. And God is still loving. It’s not our job to read Isaiah and then go sit at Starbucks and talk about what a sad place the world is. It is our job to collaborate with each other and activate that love.” — Rev. Lynice Pinkard
“Remember as you go about your day that you may be the only Jesus some of your friends, neighbors, and family will ever see.” — Wanda Brunstetter
“Do all the good you can, by all the means you can. In all the ways you can. In all the places you can. At all the times you can. To all the people you can. As long as you ever can.” — John Wesley
