Lawyers and Character
October 10, 2014 § Leave a comment
Somebody once said that character is how you behave when you think no one is watching. It’s the way you really are, without pretense or appearances. It can reflect nobility or brutishness, generosity or avidity, honesty or mendacity.
There are lots of ways to look at and describe character. The Inside Counsel Blog postulates Five Traits of Highly Effective Trial Lawyers: Credibility; civility; confidence; curiosity; and competitive spirit. I certainly can’t argue with those five C’s. If you will read the article, I think you will agree. But those are measures of what makes an effective trial advocate.
I am talking about the character traits that a lawyer should have. Here are my own Most Desirable Character Traits for Lawyers, all of which overlap and contribute to each other:
- Honesty. The lawyer is scrupulously honest and candid in all her dealings with the client, the court, and opposing counsel. There is never a question of the lawyer’s integrity.
- Professionalism. The lawyer is civil with opposing counsel, and candid and respectful of the court. All of the lawyer’s work product reflects quality and attention to detail.
- Diligence. Filings and appearances are timely. The lawyer does what needs to be done when it needs to be done. The lawyer zealously represents the client’s interests within the bounds of ethics and the law.
- Trustworthiness. The lawyer’s word is his bond. The court and opposing counsel can rely on the lawyer’s promises, case citations, representations in pleadings, and other statements. The trustworthy lawyer is never a liar.
- Competence. Undertakes responsibility for cases within the scope of his or her abilities, and refers out or associates competent counsel in cases beyond his or her skill level. Studies the law and keeps current with hand-downs. Stretches his abilities via study, and seeks advice from more experienced counsel.
- Skepticism. Questions behind the client’s representations as to the facts. Never lets the client dictate litigation strategy or tactics. Critically examines statutes and case law for new approaches. Rejects “conventional wisdom.” Does her own thinking.
- Objectivity. Maintains enough distance from the client’s emotions in the case so that he is able to offer dispassionate advice uncolored by personal involvement.
- Proportionate Sense of Self-Worth. The lawyer is neither an egotist nor a doormat. Maintains a realistic sense of his or her abilities, strong and weak points, and knowledge of self.
- Devotion to the law. The lawyer is proud of the profession, and strives to uphold its highest ideals. Promotes respect for the law and the legal profession in his or her dealings with clients, judges and other lawyers, and in the community.
I am sure you can come up with some more.
My all-time favorite list of character traits, that I return to again and again, is in Galatians 5:22-23: Joy, peace, patience, kindness, goodness, faithfulness, gentleness, and self-control.
Recovering Loans for the Estate
October 9, 2014 § Leave a comment
Thomas Kennedy, Sr., during his lifetime wrote twenty checks payable to his son, Timothy. The checks, ranging from $1,000 to $40,000 totaled in the aggregate $180,900. Timothy did not dispute that the checks constituted loans to him from his father.
Thomas, Sr., died, and Thomas, Jr., became executor of his father’s estate. A year and a half after opening the estate, Thomas filed a final account and petition to close the estate. In his prayer for relief, he asked that Timothy be required to repay the amounts loaned to him, or that his distributive share be decreased by that amount.
Timothy raised three defenses: (1) that filing the pleading in the estate action was not sufficient to toll the statute of limitations; (2) that the executor should have filed a collection action in circuit or county court; and (3) that collection of some or all of the loans was barred by the statute of limitations (SOL).
The chancellor found that the checks were, indeed, loans, and that, since they had no specific due dates, the general 3-year SOL applied, running from the date of each check, and that, therefore, some of the loans were barred from recovery. He calculated that Timothy owed $91,700, and that he could either repay the estate or have his share reduced by that amount. The chancellor did not buy Timothy’s argument about a separate action in a different court. Timothy appealed.
In Kennedy v. Estate of Kennedy, decided September 30, 2014, the COA affirmed. Here are the takeaways from this case:
- Although Mississippi law is less than clear as to whether loans to a legatee should be treated differently than loans by the decedent to others, the COA held that they should be treated the same, and that the SOL does apply. The SOL is not interrupted by the death of the decedent. Judge Maxwell’s reasoning and authority on this point is so sound that it’s hard to imagine that the MSSC would reach a different conclusion, despite the fact that there is some old authority to the contrary. You might want to watch this case for cert if you do a lot of estate work.
- The COA agreed with the chancellor that the SOL began to run on each transaction on the date of the check. The chancellor had analogized the checks to demand notes, which become due and payable from the date of execution, with no demand being necessary.
- The executor was not required to file a separate collection action in circuit or county court to reduce the claim(s) to judgment. Since Timothy was an heir, his waiver of process in the estate matter made him amenable to the claims of the estate against him. The COA cited an 1870 case that said when ” … distributees are debtors of the estate there is no reason why their indebtedness should not be treated in the light of a set-off against their distributive share.” Judge Maxwell also cited one of the maxims of equity in support of his rationale. Hear, hear.
If you are representing an executor in an estate which is owed debts, keep in mind that the SOL is ticking away every day, and that your dilatoriness could cost the estate some money that you might have to find a way to repay. In my opinion, if your executor is not successful in collecting those debts from non-distributees, it would be better practice to get chancery authority to sue to collect them in circuit or county court, and to get a judgment. If the debtors are distributes, make sure you get process on them promptly in the estate action on a pleading to collect, so as to stop the SOL from running.
The Basis for a New Trial
October 8, 2014 § Leave a comment
MRCP 59(a) provides that the trial court may grant a new trial ” … in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.” In non-jury cases ” … the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings of fact and conclusions, and direct entry of a new judgment.”
On its own initiative, the court may, within ten days of entry of a judgment, order a new trial (rehearing) for any of the above reasons. And the court may, after giving the parties’ notice, grant a new trial for reasons not stated in a motion. The court must spell out the grounds for its ruling.
In the case of Bariffe v. Estate of Lawson, et al., about which we posted yesterday, Justice Coleman’s dissent adds some important insight into how R59 is supposed to be applied by the trial court [beginning in ¶50]:
… Rule 59 must be read and interpreted in light of [MRCP] Rule 61, which provides:
No error in either the admission or the exclusion of evidence and no error in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Miss. R. Civ. P. 61. Thus, a harmless error in the proceedings that “does not affect the substantial rights of the parties” is not a sufficient reason for granting a new trial. Id. Applying Rule 59, the Court has held that trial courts have discretion in granting a new trial if the judge is convinced that (1) “a mistake of law or fact has been made” or (2) “injustice would attend allowing the judgment to stand.” Mayoza v. Mayoza, 526 So. 2d 547, 549-50 (Miss. 1988). …
As we discussed in the previous post, the chancellor granted a new trial in Bariffe because he felt that he had improperly limited the parties’ presentation of their cases in the first trial by imposition of time limits on the examination of witnesses. The majority found no error in his granting of a new trial. Judge Coleman would have held it to be error based on his analysis above.
If you are going to make a R59 motion and argument, make sure you define what substantial rights were affected by the judge’s ruling, and stress that point. If you are on the receiving end of the motion, argue that the movant has failed to raise an issue cognizable under R61.
Can the Judge Time-Limit Your Case?
October 7, 2014 § 4 Comments
In this district, we impose a one-hour-per-side time limit on temporary hearings. It has proven to be an effective way to deal with the numbers of temporary hearings that, if they were not time-limited, could swamp our court system.
Rulings in temporary hearings, however, are not appealable, so the time-limitation issue does not affect record-making that might have an impact on appeal.
What about hearings leading to final judgments? Can the judge impose a time limit on the presentation of your case?
In the MSSC case of Barriffe v. Estate of Lawson, et al., handed down October 2, 2014, the chancellor imposed time limits on the presentation of the parties’ cases because he felt the attorneys were unprepared and had consumed an entire day questioning the first witness. After he entered judgment, he granted a new trial on a R59 motion because he felt that, perhaps, he had been unfair in imposing the time limits.
On appeal, the majority of the court said, “We see little evidence in the record that the chancellor was unfair to either side with respect to time limitations, and we note that his threats [to cut off overtime questioning] were mostly unenforced.” The majority (5-3, with King not participating) held that the chancellor properly granted a new trial.
Justice Coleman, however, dissented, disagreeing that the chancellor was correct in granting a new trial based on the time limits. His opinion sets out the applicable law:
¶47. On the second day of the first trial, the chancellor accused the attorneys of not being prepared for trial and, after the attorneys took more than a day to question the first witness, the chancellor limited the time for questioning the remaining witnesses. Mississippi Rule of Evidence 611 provides:
The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
Miss. R. Evid. 611(a). Rule 611 “is designed to give trial judges some measure of control over the operation of trials and the smooth flow of the litigation process.” Moore v. Moore, 757 So. 2d 1043, 1046 (¶ 14) (Miss. Ct. App. 2000).
¶48. In Moore v. Moore, the defendant claimed that his due process rights were violated because the trial judge limited the trial to one day. Id. at 1046 (¶ 11). The Court of Appeals found no merit to the claim because the defendant knew the time limit from the beginning of trial, he did not object, the defense called seven witnesses, the defendant testified, and there was “no indication in the record . . . that the time limits placed on the trial by the chancellor were problematic.” Id. at 1046 (¶¶ 12-14). The Court of Appeals said if the defendant’s “trial strategy was adversely affected, then a record outlining the adverse effect should have been preserved” for the appellate court to review. Id. at 1047 (¶ 14). The Court of Appeals recognized that defendants have “a right to introduce evidence at a hearing[,]” however, “if there is no evidence to present or no proffer as to what would have been presented, then there is no legitimate basis for complaining on appeal about the chancellor’s control of evidentiary presentations.” Id. at 1046 (¶ 13) (quoting Morreale v. Morreale, 646 So. 2d 1264, 1270 (Miss. 1994)). See also Gray v. Pearson, 797 So. 2d 387, 394 (¶ 29) (Miss. Ct. App. 2001) (court did not overturn chancellor’s ruling limiting each side to two hours of trial testimony because appellant did not make a timely objection or make a record of evidence she would have presented without the time limit).
¶49. In the instant case, although the chancellor gave time limits for three witnesses, he did not adhere strictly to the time limits he set. The attorneys were allowed to exceed the allotted time when they questioned Eugene, and although the chancellor noted the time, he did not instruct them to stop. The chancellor limited the time to ten minutes for each side when the Barriffes called David and Dwight. The Nelsons waived their time to cross-examine both David and Dwight. When the Nelsons called David, they were given forty-five minutes for direct examination; they used only twenty of the allotted forty-five minutes. No time limit was placed on Dwight for the Nelsons’ direct examination. The Nelsons did not use all of the time allotted, they did not object to the time limits, and they did not identify any evidence or testimony that they were not able to present. In my opinion, under these specific facts, the chancellor’s imposition of a time limit on three witnesses, which he did not enforce, did not amount to a violation of due process, and the chancellor acted within his discretion when he limited the time for questioning witnesses.
If your chancellor imposes a time limit in your case, and you feel that your ability to make your case is adversely impacted, you need to be sure to make a timely objection, and make an offer of proof of the evidence you would have been able to present without the time limit. Without those essential elements, you will not be able to argue the point on appeal.
But from both the majority and the dissent in this case, it seems like it would take a pretty unfair scenario for the appellate court to overturn the imposition of time limits.
“Quote Unquote”
October 3, 2014 § 3 Comments
“The Christian ideal has not been tried and found wanting. It has been found difficult; and left untried.” — G.K. Chesterton
“What does love look like? It has the hands to help others. It has the feet to hasten to the poor and needy. It has the eyes to see misery and want. It has the ears to hear the sighs and sorrows of men. That is what love looks like.” — Augustine
“In the best sense of the word [Jesus] was a radical. … His religion has so long been identified with conservatism — often conservatism of the obstinate and unyielding sort — that it is almost startling for us sometimes to remember that all the conservatism of His own times was against him, that it was the young, restless, sanguine, progressive part of the people who flocked to him.” — Phillips Brooks
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.
