Dealing with Missing Persons
October 2, 2014 § Leave a comment
Several years ago a woman in our district disappeared without a trace, leaving behind some real property on which was situated her residence, some bank accounts, and some other assets, along with the usual bills that accompany those. After some fruitless weeks the focus of the family’s attention shifted from finding her to dealing with her affairs. What could they do?
The answer is in the conservatorship statute, MCA 93-13-251, which states:
If a person is incapable of managing his own estate … because the person is missing or outside the United States and unable to return, the chancery court of the county where the person resides or, in the case of a missing or absent person, the chancery court of the county where the person most recently resided, upon petition of … one or more of his friends or relatives, may appoint a conservator to have charge and management of the property of the person … subject to the direction of the appointing court.
NOTE: We’re not dealing here with military missing or missing in action. That is specifically addressed in MCA 93-13-161.
Since the person is not to be found in Mississippi, an affidavit must be filed that the person is not to be found in the state after diligent inquiry, and process by publication must be made on the missing person pursuant to MRCP 4(c)(4). Thirty days’ process should be given, with notice to a day and time certain. Personal process, waiver, or joinder must also be had on one relative of the proposed ward residing in Mississippi, and MCA 93-13-153 spells out what class of relative will satisfy the requirement.
MCA 93-13-255 provides that the court shall conduct a hearing on the need for a conservator, and may appoint a guardian ad litem (GAL). In my opinion, it would be prudent to appoint a GAL in cases of this sort. The section also requires that the ward be examined by two physicians. That, of course, is problematical where the ward is missing. I think it can be reasonably deduced from the conservatorship statutes that this requirement applies only to proceedings of incapacity of advanced age, and not to missing persons. Since missing persons are specifically mentioned in Section 251, and are not mentioned in Section 255, it is reasonable to assume that there is no such requirement for them.
The conservator in such cases, has the same powers and duties as guardian of a minor (Section 259). The conservator may make provision for support of the ward’s dependents (Section 263).
Appointment of a conservator imposes the same disability on the missing ward as if he or she were a minor (Section 261). If the ward reappears, a petition must be filed to restore the ward’s legal capacity and end the conservatorship (Section 265). That would require a final account, with notice to the ward, all as provided in MCA 93-13-77.
Attorney’s Fees Directed by the Will
October 1, 2014 § Leave a comment
B.D. Benoist included a provision in his will that any beneficiary who contested his will “shall pay all attorneys fees and court costs associated with the Will contest or related action.”
The will was, indeed, unsuccessfully contested by Bronwyn Parker, B.D.’s daughter and a beneficiary, and the executor demanded award of an attorney’s fee.
Before we go any further, we’ve posted twice before here about this case. One post addressed the question as to when a temporary administrator should be appointed. The second post set out the MSSC’s new rule that there is a good faith and probable cause exception to enforceability of in terrorem clauses in wills.
As to that later point, you will recall that the MSSC reversed the chancellor’s ruling that Bronwyn was disinherited because she challenged the will. Due to the fact that she acted in good faith and with probable cause to believe her position was correct, neither she nor the executor were bound by the in terrorem clause.
But what about where a will directs, as in the language above, simply that the contestant must pay the fees and court costs, without language that the challenging beneficiary will be disinherited? Can that be enforced?
Here’s what the MSSC said:
¶28. The forfeiture provision of B.D.’s will stated that if any beneficiary instituted a will contest, that beneficiary “shall pay all attorneys fees and court costs associated with the Will contest or related action.” When the chancery court initially held that the forfeiture provision in B.D.’s will was enforceable, it also concluded that Bronwyn was required to pay attorney fees for initiating the will contest. Upon granting Bronwyn’s motion to reconsider, the chancellor held that B.D.’s will could not obligate her to pay attorney fees. The chancellor reasoned that, although the “paramount duty of the court is to ascertain the intent of the testator,” the court still may not give effect to such intent if it is “contrary to law or public policy.” The chancellor reasoned that, in requiring payment of attorney fees, the testator essentially was attempting to dictate the transfer of property that was not his and was beyond his control. The chancellor analyzed Mississippi Code Section 91-5-1,12 which governs the authority of individuals to create wills, and concluded that it did not give persons power over property which was not theirs to begin with. We agree with this conclusion. Section 91-5-1 permits the testator to dispose of and “devise all the estate, right, title and interest in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have. . . .” Miss. Code Ann. § 91-5-1 (Rev. 2013). The testator is not empowered to control assets that do not belong to him or her through a will, but may control only those things “which he or she hath, or at the time of his or her death shall have. . . .” Id. This clearly does not contemplate funds of a third party over which the testator had no control during his or her life or at his or her death. Mississippi does not statutorily authorize the payment of attorney fees by an unsuccessful will contestant. Accordingly, William can prevail in his claim only if there is an alternative avenue through which an award of attorney fees is appropriate.
¶29. We review a chancellor’s determination of whether to award attorney fees under an abuse of discretion standard. Schwander v. Rubel, 221 Miss. 875, 897, 75 So. 2d 45, 54 (1954) (quoting King v. Wade, 175 Miss. 72, 166 So. 327, 330 (1936)) (emphasis added). “[W]hen there is no contractual provision or statutory authority providing for attorney’s fees, they may not be awarded as damages unless punitive damages are proper as well.” Willard v. Paracelsus Health Care Corp., 681 So. 2d 539, 544 (Miss. 1996). There is no statutory authority for a testator to require the payment of attorney fees, and Bronwyn and William were not parties to a contract which included an attorney fees provision. Bronwyn has not been subject to punitive damages, nor is she in contempt of court. The chancellor did not abuse his discretion in denying attorney fees to William. The chancellor correctly noted that Mississippi does not statutorily authorize the payment of attorney fees by an unsuccessful will contestant. All that is permissible is for the will to detail the disbursement of the testator’s property. The Legislature has not seen fit to grant testators the authority to invoke the power of the courts to compel unsuccessful contestants to pay attorney fees incurred in defending a will contest. As concluded by the chancellor, there are no means by which William can obtain attorney fees in these circumstances.
A couple of useful points in this case:
- A testator may only direct the disposition of funds over which he had control during his life. Since an award of attorney’s fees would be a disposition of a third party’s funds, that’s outside the scope of the testator’s power.
- There are only three avenues for a chancellor to award attorney’s fees: (1) where there is a contractual agreement for award of attorney’s fees; or (2) where there is a statute authorizing an award of attorney’s fees; or (3) where there is an award of punitive damages. Of course, attorney’s fees may be awarded on a finding of contempt, but there are statutes authorizing that.
I wonder whether language that authorized the executor to reduce the share of any unsuccessful or bad faith contestant (or contestants pro rata) by the amount of attorney fees and costs incurred by the estate in defending the will, with the amount to be adjudicated by the court, would get by?
Remember that Benoist does not do away with in terrorem clauses in our jurisprudence. It merely opens a line of attack that had heretofore been closed to Mississippi litigants. So can still use your legal creativity to help your clients come up with language that will help blunt or mitigate the attack.
Change to In Forma Pauperis
September 30, 2014 § Leave a comment
MRCP 3(c) is the rule that governs the filings of actions by persons who, due to poverty, are unable to afford to pay filing fees.
Until last Thursday, the rule read this way:
(c) Proceeding in forma pauperis. — If a pauper’s affidavit is filed in the action the costs deposit and security for costs may be waived. The court may, however, on the motion of any party, on the motion of the clerk of the court, or on its own initiative, examine the affiant as to the facts and circumstances of his pauperism.
Last Thursday (September 25, 2014), the MSSC, on its own motion, replaced the above language with this:
(c) A party may proceed in forma pauperis in accordance with sections 11-53-17 and 11-53-19 of the Mississippi Code Annotated. The court may, however, on the motion of any party, on the motion of the clerk of the court, or on its own initiative, examine the affiant as to the facts and circumstances of his pauperism.
MCA 11-53-17 provides as follows:
A citizen may commence any civil action, or answer a rule for security for costs in any court without being required to prepay fees or give security for costs, before or after commencing suit, by taking and subscribing the following affidavit:
“I, _____________, do solemnly swear that I am a citizen of the State of Mississippi, and because of my poverty I am not able to pay the costs or give security for the same in the civil action (describing it) which I am about to commence (or have begun, as the case may be) and that, to the best of my belief, I am entitled to redress which I seek by such suit.”
MCA 11-53-19, reads this way:
The court may dismiss an action commenced or continued on affidavit of poverty, if satisfied that the allegation of poverty was untrue.
It’s not a major substantive change, for sure, and it will not affect most of you in your practice, but it is a change to bear in mind for the occasional case where the client is unable to afford to pay the filing fee.
One thing that caught my attention was the court’s deference to the legislative act. Is it just my imagination, or has the high court been trending slightly in that direction? I haven’t had time to go digging back to verify, but it seems that way to me. If so, it’s somewhat significant because when the MSSC originally adopted the MRCP, it signaled a power struggle between the judicial and legislative branches that had repercussions throughout Mississippi government. The court’s order on May 26, 1981, clearly sent the message that the courts, and the courts alone, would determine their rules of procedure.
Another thing that strikes me is some of the archaic language of Section 15. The phrase ” … answer a rule for security for costs …” invokes procedure that we have not seen in our courts since the MRCP went into effect 32 years ago. We have not had a rule (nisi) since the MRCP. Also, the idea of security for costs harks back to old procedure under which costs were incurred document-by-document-filing as the litigation proceeded, and lengthy litigation could result in substantial costs, as opposed to the current procedure of one-price litigation. Thus, another party, or the clerk, seeing costs mounting, could ask the court for a “rule” to put up some security in the event that the party was unsuccessful in his or her quest.
The Bad Earth
September 29, 2014 § 3 Comments
Slander of title is one of those rare actions that one sees a couple of times in a career. The recent MSSC case, Mize v. Westbrook Construction, et al., handed down September 4, 2014, illustrates, perhaps, why that is.
Jerry Mize purchased 56 acres of land. The seller told him that, although most of the tract sat north of County Road (CR) 206, a small part of it lay south of the road. Westbrook and the other defendants (Westbrook), however, took the position that their deeds gave them title to all the property south of the road.
Mize then employed an engineering firm to survey the property and prepare a corrected deed in an effort to resolve the difference. The corrected deed was also necessary because the original deed had a description that did not close. The survey confirmed Mize’s position, but Westbrook refused to recognize it, relying instead on their own deeds that had been prepared by another surveying firm in 2004, which set the boundary in the center line of CR 206, not south of it.
Mize went ahead and recorded the corrected deed and filed suit to quiet and confirm title. Westbrook answered and counterclaimed to quiet and confirm their own title, and for slander of their titles.
After a trial, the chancellor accepted Westbrook’s survey and found that, even if Mize’s property did extend south of CR 206, Westbrook had obtained title by adverse possession. The trial court also found for Westbrook on the slander-of-title claim, and awarded damages of $32,530.05. Mize appealed. The COA affirmed, and the MSSC granted cert.
Justice Randolph, for a unanimous court, laid out the framework for a slander-of-title suit:
¶7. To succeed in an action for slander of title, a claimant must show that another has falsely and maliciously published statements that disparage or bring into question the claimant’s right of title to the property, thereby causing special damage to the claimant. Walley v. Hunt, 212 Miss. 294, 304, 54 So. 2d 393, 396 (1951). The slander may consist of a writing, a printing, or words of mouth, but they will provide grounds for a cause of action only if the statements have been made falsely and maliciously. Id. Whatever the statement, however, in order for it to form the basis of a right of action, it must have been made not only falsely but maliciously. Id. (citations omitted).
¶8. Malice, however, may be inferred from one’s actions. Phelps v. Clinkscales, 247 So.2d 819, 821 (Miss. 1971). “The law determines malice by external standards; a process of drawing inferences by applying common knowledge and human experience to a person’s statements, acts, and the surrounding circumstances.” Id. As such, the chancellor’s finding of malice should be given great deference and can be reversed only if it is clearly erroneous. Mason v. Southern Mortgage Co., 828 So. 2d 735, 739 (Miss. 2002). Here, the chancellor found malice in Mize’s actions; however the record is silent as to whether Mize knowingly made a false publication.
The court then turned its attention to the filing of the corrected deed. Was that sufficient to support a finding of malice?
¶9. This Court has held that the mere filing of a corrected deed is not sufficient to show malicious intent. Wise v. Scott, 495 So. 2d 16, 21 (Miss. 1986). Wise involved a dispute of mineral rights between parties following a conveyance of a mineral deed. Id. at 20. After realizing that there had been a drafting error in the original deed that had a material effect on the parties’ property rights, the defendant sought to correct the error through a corrected deed. Id. at 21. The plaintiffs successfully sued the defendant for slander of title in chancery court. Id. On appeal, this Court reversed the chancery court, finding that malice cannot be shown by the mere filing of a corrected deed, if the party who filed the corrected deed had a bona fide belief of ownership. Id.
Since Mize had a bona fide belief based on his sellers’ representations, and he had reason to file a corrected deed to remedy its failure to close, it was error for the trial court to find malice in the filing of the corrected instrument in the absence of proof of “falsity, guile, or trickery.”
And what about the filing and pursuit of the suit by Mize? Did those actions constitute malice? The court answered, “No” because communications published in the course of a lawsuit are absolutely privileged. And, as for continuation of the litigation after the seller had given an affidavit that she never intended to sell any property owned by Westbrook, the MSSC said that a party who acts under a reasonable belief of title can not be held to have acted maliciously. Since Mize had his survey and corrected deed, his acts were based on a reasonable belief.
The court reversed the chancellor’s finding of slander of title and the award of damages.
Reprise: Show Me the Money!
September 25, 2014 § Leave a comment
Reprise replays posts from the past that you might find useful today …
SHOW ME THE MONEY!
March 10, 2011 § 1 Comment
As a judge I can tell you it’s hard to capture every detail in my trial notes. Sometimes the witness just speaks so fast that I stay three sentences behind, trying to catch up, and just can’t get it all. Sometimes the significance isn’t clear until much later in the trial or even when the judge is writing the opinion, and then it’s too late. Sometimes a verbose witness will bury the critical info under an avalanche of mostly meaningless words.
Next time you have an equitable distribution case, why don’t you sit down with your client during your trial preparation and work up a spreadsheet that shows how she wants the marital estate divided. You already have it in part with the joint property list that is included in the pre-trial order. Why not just rearrange all those assets into the manner that your client wants them divided. Once she identifies it, offer it into evidence, and the judge has the graphic depiction of how your client wants the case to go rather than just a gob of words. Instead of devoting your time (and the judge’s wayward attention) to a painstaking item-by-item approach, you can zero in on how your client justifies a greater share of the marital estate, and concentrate on the several important items she just has to have. With the preparation of a simple document you will have sharpened the focus of your case and made it more efficiently compact at the same time.
Or, if your client wants the financial assets divided a certain way, you can show the division he wants AND add a column with reduced values for tax penalties, etc., assuming you have that proof in the record.
Or, if your client has a claim for reimbursement of medical bills, why not create a table or spreadsheet itemizing all the charges, showing dates, providers, amounts charged, amount paid by insurance, and balance, with totals.
Or, if your client wants specific visitation, why not spell it all out in a proposed schedule.
Here’s how you get them in:
You: Let me show you a document and ask you what it is.
Witness: It’s a table showing [my proposal to divide the marital estate/the financial assets and how I want them divided/a summary of the medical bills/my visitation proposal].
You: Does this table accurately reflect the [marital assets/financial assets] that are already in evidence? Or: Is this the schedule you wish the judge to adopt?
Witness: Yes.
You: Now, let me ask you a few questions about this …
When you put all those words into an exhibit, you are saving the judge all the work of trying to make notes of them at trial, and you are making sure that everything you want to say won’t be missed by the judge. The judge will have a document to look at rather than having to ferret that information out of his sheaf of notes.
In other words, the easier you make it on the judge, the more probable it is that your client will be very happy with the outcome of the case and the job you did.
TPR: It Takes More than Non-Payment of Support
September 24, 2014 § 2 Comments
The COA decision in Fuller v. Weidner, decided September 16, 2014, is a reminder of a couple of basic concepts in termination of parental rights (TPR) cases.
James Fuller and Rachel Weidner had a non-marital relationship out of which was born Remmy Fuller on February 13, 2009.
James and Rachel’s association was punctuated with domestic-violence and protective-order actions, and on April 14, 2010, James was ordered to have “no contact involving the child until chancery court establishes custody.”
On April 27, 2010, the chancery court entered a child support order in a DHS case it filed against James, including an assessment of past-due support.
In May, 2012, Rachel filed a TPR action against James. A GAL was appointed per the statute, and when the case finally reached trial in April, 2013, the chancellor found that James had abandoned Remmy, and terminated James’s parental rights. James appealed, arguing that the chancellor misapplied the law and erred in finding that he had abandoned his daughter.
The COA affirmed. Here is the pertinent part of Judge Lee’s opinion:
¶7. Fuller acknowledges his two issues are intertwined and addresses both together. So do we. Mississippi Code Annotated section 93-15-103 (Rev. 2013) lists several grounds for the termination of parental rights. Sections 93-15-103(3)(b) and (f) allow for the termination of parental rights if:
(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or
. . . .
(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment . . . .
In this instance, the chancellor determined that Fuller had not contacted Remmy “for more than the six (6) months mandated by statute.” Fuller contends the chancellor misapplied the law because Remmy was three at the time Weidner filed the termination action; thus, the applicable time period should have been one year. However, the chancellor specifically found Fuller had not seen Remmy since April 2010, and had not attempted to establish any visitation with her. At the time of the hearing in April 2013, Fuller had not seen his daughter in three years.
¶8. Fuller admits he has not seen Remmy since April 2010, but states he was under the mistaken belief that he was not allowed to contact her until the chancery court established custody as required by the restraining order. Fuller acknowledges he did try to contact Weidner after the restraining order had expired but was unable to reach her and did not attempt to contact her directly again, even though he knew where Weidner and Remmy were living.
¶9. The chancellor further determined that Fuller had failed to pay any child support for approximately two years, and only began to pay once Weidner filed her termination action. We do recognize that “[f]ailure to pay child support without more is insufficient predicate for a finding of abandonment.” Carter v. Taylor, 611 So. 2d 874, 877 (Miss. 1992). We reiterate that at the time Weidner filed the termination action, Fuller had not seen Remmy in two years nor made any serious efforts to do so. “A finding of substantial erosion of the parent/child relationship necessarily involves a consideration of the relationship as it existed when the termination proceedings were initiated.” G.Q.A. v. Harrison Cnty. Dep’t of Human Res., 771 So. 2d 331, 338 (¶29) (Miss. 2000). A substantial erosion can be proved by showing a prolonged absence and lack of communication between the parent and the child. Ainsworth v. Natural Father, 414 So. 2d 417, 420 (Miss. 1982). In a similar case, this Court affirmed the chancellor’s decision to terminate a father’s parental rights since the father had admittedly not seen his child in two years and only started paying child support after the termination action was filed. R.L. v. G.F., 973 So. 2d 322, 324-25 (¶¶8-10) (Miss. Ct. App. 2008).
A couple of points from a fairly clear-cut case:
- Whichever side of the case you’re on, in my experience failure to have contact within the statutory time without serious mitigating factors is pretty much a slam-dunk when it comes to TPR.
- Failure to support is more of an aggravating circumstance that lends weight to the termination action, but, as the case cite says, it does not warrant TPR in and of itself.
If James had been serious about seeing and contacting his daughter, there are numerous ways that he could have documented his efforts and created substantiating testimony. The inescapable conclusion he left both the chancellor and the COA was that he had really made no effort because he had no proof other than his naked assertions.
If a James comes to your office complaining that he has had trouble contacting and visiting with his baby, advise him of the TPR law and help him document his efforts. Then file an action to establish or enforce his visitation rights. The sooner the better. Oh, and be sure to tell him that a dad who isn’t paying child support gets little or no sympathy from the chancellor.
Point of Personal Privilege
September 23, 2014 § 7 Comments
Having reached what I consider to be a personal milestone on this date, I am taking a point of personal privilege to set out a few conclusions that I have reached:
- Life is complicated. It makes me laugh to hear the talking heads, pols, and other simpletons who claim to have the answer in a platitude or two.
- Rigid, inflexible, judgmental, dogmatic people tire me out.
- Needed in much more abundance: Joy, peace, patience, kindness, gentleness, self-control, faithfulness, and goodness. Gal. 5:22
- Needed in much less abundance: cynicism, egotism, hatred, dishonesty, self-gratification at the expense of others, unwillingness to empathize, cruelty, willful ignorance, and self-righteousness.
- We need less religion, and much more of God.
- The devil does not come as a creature with horns, dressed in a ridiculous red suit, carrying a pitchfork. The devil comes in the fulfillment of our deepest cravings and irresistible urges.
- As my time on this divot of the universe winds down, I am less and less willing to devote any of my personal time to what I find unpleasant, hurtful, or meaninglessly confrontational.
- If we could look truly dispassionately at most of the everyday concerns about which we are most passionate – things such as sports, possessions, politics, competitions – we would realize that they are really trifles, lighter than a feather, compared to what should really capture our passion.
- Do not trust people who are harsh and punitive.
Check back in fifteen or so years, and if I’m still around, these may have changed, and I may have more or fewer.
You may now return to your usual activities.
The Missing Link
September 22, 2014 § 6 Comments
Here’s a typical trial scenario with inexperienced lawyers:
L1: Now, your honor, we ask that this document be admitted into evidence.
L2: Objection. Hearsay and not properly authenticated.
CH: Sustained.
L1: Um, uh, er. Okay. So, Mr. witness, what did you do next?
Stop right there. What did L1 not do that he should have done?
If you said, “Proffer,” or “Offer of proof,” you are correct. If you didn’t get it, well, you need to read — attentively — on.
In the case of Granger v. State, 853 So.2d 830, 833 (Miss. App. 2003), the court said, ” … a party who wishes to preserve an issue for appeal must make a proffer. Generally, when a party seeks to offer evidence which in turn is excluded by the trial court, before we will consider the matter on appeal the party must somehow have placed in the record the nature and substance of the proffered evidence for our consideration.”
MRE 103(a)(2) covers the point:
(a) Error may not be predicated on a ruling which admits or excludes evidence unless a substantial right of a party is affected, and … (2) In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
So, if L1 above could not have stumbled his way around the objections, he should have made a proffer that would look something like this:
L1: Now, your honor, we ask that this document be admitted into evidence.
L2: Objection. Hearsay and not properly authenticated.
CH: Sustained.
L1: We ask that this document be marked for identification purposes only.
That way, the substance of the document is part of the record, and the appellate court can look at it and judge for itself whether it should have been excluded.
Now, getting the document into the record may not be all the appellate court needs to know about it. The court may need to know more in order to make a proper decision. So L1 would then take that document marked for ID, tell the court he would “like to make a proffer,” or would “ask to make an offer of proof,” and when permission is granted either ask the witness questions about the document that make the record, or make a statement into the record about the document and its nature and substance, and why it was admissible. At the conclusion, L1 should say, “Now I am off proffer,” or “that concludes my offer of proof,” or words to that effect. Nothing said or offered in proffer is considered by the trial judge, but it may be considered by the appellate court.
That latter procedure also works where the trial judge has sustained objections to questions you ask the witness, and you need that information in the record.
Despite the language of the rule, you should never assume that the substance is apparent from the context. You should always make your proffer.
This is important because your key role at trial is not to have the trial judge rule for you, or to satisfy your client, or to be the best-dressed lawyer. Your key role is to MAKE A RECORD of every bit of evidence that supports every element of your case, in a way that is intelligible to the appellate court. No matter how convincing your case was to the trial judge, no matter how charming and persuasive you were in the court room, if you haven’t made a good record you run the substantial risk of getting your case reversed on appeal. Clients hate that.
If you do not make a proffer when the court excludes evidence, you are leaving a missing link in your record that may snatch defeat from the jaws of victory.
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