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.
When Can a Chancellor Award Punitive Damages?
September 18, 2014 § 4 Comments
Bar-Til entered into a contract as a subcontractor to do some work for Superior Asphalt on Pull-A-Part’s property. Problems arose with some environmental regulations that required some change orders. As the work expanded, so did the bills, and Superior quit paying the invoices.
Bar-Til sued Superior for breach of contract, breach of covenant of fair dealing, and breach of fiduciary duty. Bar-Til included Pull-A-Part on the basis that it had been unjustly enriched by Bar-Til’s uncompensated effort. When the trial was in its third day, Bar-Til moved to amend its complaint to allege bad faith, seeking punitive damages from Superior. The chancellor granted the motion, but clarified that only the issue of whether punitive damages would be an issue was before the court. He said that Bar-Til could “offer the proof of punitive damages when we decide if that’s going to be an issue.”
At the conclusion of trial, the chancellor found for Bar-Til on the breach of contract issue, and added that Bar-Til was even entitled to recover on a quantum meruit basis. The chancellor found that Bar-Til failed to prove that Superior acted in bad faith or breached a fiduciary duty, and so failed to prove entitlement to punitive damages. Since no punitive damages were due, attorney’s fees were denied. The judge also found that Bar-Til had failed to prove any of its claims against Pull-A-Part.
Bar-Til appealed on the chancellor’s denial of punitive damages, charging that the denial was in error, as was the chancellor’s refusal to hold a separate hearing on punitive damages.
In the COA case of Bar-Til, Inc. vs. Superior Asphalt, Inc. and Pull-A-Part, LLC, decided August 26, 2014, Judge Carlton spelled out the parameters for chancery judges considering whether to award punitive damages:
¶14. Our caselaw provides that “[t]he award of punitive damages, along with the amount of such, are within the discretion of the trier of fact.” Hurst v. Sw. Miss. Legal Servs. Corp., 708 So. 2d 1347, 1350 (¶6) (Miss. 1998) (citation omitted). In contract cases, “[p]unitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton[,] or reckless disregard for the safety of others, or committed actual fraud.” Miss. Code. Ann. § 11-1-65(1)(a) (Supp. 2013). In determining the propriety of punitive damages, a chancellor “decides whether, under the totality of the circumstances and viewing the defendant’s conduct in the aggregate, a reasonable, hypothetical trier of fact could find either malice or gross neglect/reckless disregard.” Ciba-Geigy Corp. v. Murphree, 653 So. 2d 857, 863 (Miss. 1994) (citations omitted).
* * *
¶19. We now turn to a review of the statutory law and caselaw applicable to punitive damages. In discussing whether an award of punitive damages is proper, Mississippi Code Annotated section 11-1-65(1)(b)-(c) (Supp. 2013) provides:
In any action in which the claimant seeks an award of punitive damages, the trier of fact shall first determine whether compensatory damages are to be awarded and in what amount, before addressing any issues related to punitive damages.
If, but only if, an award of compensatory damages has been made against a party, the court shall promptly commence an evidentiary hearing to determine whether punitive damages may be considered by the same trier of fact.
¶20. The Mississippi Supreme Court has also provided the following guidance:
Mississippi law does not favor punitive damages; they are considered an extraordinary remedy and are allowed with caution and within narrow limits. Punitive damages should be awarded in addition to actual or compensatory damages where the violation of a right or the actual damages sustained, import insult, fraud, or oppression and not merely injuries, but injuries inflicted in the spirit of wanton disregard for the rights of others. In other words, there must be some element of aggression or some coloring of insult, malice[,] or gross negligence, evincing ruthless disregard for the rights of others, so as to take the case out of the ordinary rule.
. . . This Court has held that punitive damages are recoverable in breach of contract cases where the breach results from an intentional wrong and when there has been a showing of malice or gross/reckless disregard for the rights of others. Punitive damages are only appropriate in the most egregious cases so as to discourage similar conduct and should only be awarded in cases where the actions are extreme.
Warren v. Derivaux, 996 So. 2d 729, 738 (¶¶27-28) (Miss. 2008) (internal citations and quotation marks omitted).
¶21. As our precedent reflects, some underlying basis, such as actual malice or fraud, must exist for an award of punitive damages before a chancellor will hold a second hearing on the issue of such damages. See Miss. Code. Ann. § 11-1-65(1) (Supp. 2013). In the present case, the chancellor found no merit to Bar-Til’s claim that Superior’s conduct justified an award of punitive damages. As reflected in his order and final judgment, the chancellor found that Bar-Til failed to provide the requisite evidentiary basis to support an award of punitive damages.
That’s a pretty nifty survey of the law of punitive damages, and it illustrates how exceptional and infrequent such awards are.
The COA swept aside Bar-Til’s claim about the failure to hold a separate hearing based on the chancellor’s conclusion that punitive damages were not warranted.
When Should a Temporary Administrator be Appointed?
September 17, 2014 § 2 Comments
MCA 91-7-53 allows the court in a will contest, on filing of a petition by an interested person, to appoint a temporary administrator if necessary to protect the rights of the parties.
In the case of Parker v. Benoist, decided August 28, 2014, the MSSC was confronted with the question whether the chancellor should have appointed a temporary administrator in a will contest. We talked about this case previously in connection with in terrorem clauses.
Bronwyn Parker filed a contest in connection with the will of her father, B.D. Benoist. She also filed a motion to remove her brother, William, from his position as executor, claiming that he had appropriated most of B.D.’s assets for himself through undue influence before B.D.’s death, and that he had unduly influenced his father in the making of the will being contested. She contended that a previous will, executed in 1998, was her father’s true, valid will. Because William was defending the will from which he benefited, and which Bronwyn argued should be set aside, William should be removed as fiduciary.
The chancellor overruled Bronwyn’s motion, finding that there were factual issues which were “strongly disputed between the parties,” and that “[t]here [wa]s no uncontested evidence for the Court to remove William D. Benoist as the Executor of the Last Will and Testament of Billy Dean ‘B.D.’ Benoist.”
Bronwyn appealed, charging that it was error for the trial judge to refuse to remove William.
The MSSC affirmed on the point. Justice Kitchens wrote for the court:
¶26. “[W]henever a last will and testament shall be contested, the chancery court or chancellor in vacation, on petition of any interested person, may appoint a temporary administrator if it shall appear necessary for the protection of the rights of the parties. . . .” Miss. Code Ann. § 91-7-53 (Rev. 2013). Chancellors have wide discretion in appointing a new executor in a will contest, and this Court “should not reverse his action unless there is clear evidence of abuse of that discretion.” Sandifer v. Sandifer, 237 Miss. 464, 469, 115 So.2d 46, 48 (1959). On appeal, Bronwyn essentially reiterates the facts that she believes necessitated a finding by the chancellor that a new executor should be appointed–substantial gifts from B.D. to William before B.D.’s death and William’s mismanagement and depletion of estate assets after B.D.’s death. She argues that, because the jury found that William was in a confidential relationship with B.D., there was a presumption of undue influence.
¶27. We find that the chancellor did not abuse his discretion in denying Bronwyn’s petition to remove William as executor. The chancellor considered all of the arguments Bronwyn has made on appeal and determined that the circumstances did not warrant the appointment of a new executor. We cannot say the chancellor was manifestly wrong or that he abused his discretion. We are slightly troubled, however, by the wording of the chancellor’s order denying Bronwyn’s petition. The chancellor stated that there was no “uncontested evidence” that would justify removing William as the executor. It is not required that there be uncontested evidence to justify the removal of an executor. All that is required is that the chancellor determine, in his or her discretion, that it is necessary to remove the current executor to protect the rights of the parties to the will contest. See Miss. Code Ann. § 91-7-53 (Rev. 2013). “Nowhere does the statute say that before he may appoint a temporary administrator he must find that the executor named in the will is disqualified or has been guilty of misconduct in office.” Sandifer, 115 So. 2d at 47-48. We clarify that chancellors enjoy wide discretion in granting or denying requests to remove an executor, and that a party is not required to present “uncontested evidence” to succeed in such a petition. Bronwyn’s claim of error on this issue, however, is without merit.
To put it in simpler terms: even though the chancellor followed the wrong road map, he arrived at the right destination, so no reversal.
What jumps out from this case is that it is not enough for the executor and the contestant to be pitted against one another in the litigation. Nor is it enough that the executor have a stake in the outcome. You have to convince the chancellor that that removal is necessary to protect the interests of the parties to the litigation. Even then, it is within the chancellor’s discretion, and to reverse his decision on appeal, you must convince the appellate court that he was manifestly wrong or abused his discretion.
MRCP 41(b) in Operation
September 16, 2014 § Leave a comment
The COA’s September 9, 2014, decision in In the Matter of Will of Bowling: Hicks v. Bowling, addresses a dismissal by the trial court of a will contestant’s complaint after she had rested in a bench trial.
The dismissal was per MRCP 41(b), which states, in pertinent part:
… After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and law the plaintiff has shown no right to relief. The court may then render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence …
The defendant, Mark Bowling, moved to dismiss at the conclusion of Paula Hicks’s case in chief, and the chancellor granted the motion. Paula appealed.
Judge Maxwell set out the applicable law:
¶18. In contrast to a motion for a directed verdict under Mississippi Rule of Civil Procedure 50(a), which applies to jury trials and requires the trial judge to view the evidence in the light most favorable to the plaintiff, a Rule 41(b) motion to dismiss differs somewhat. It applies to cases tried by a judge sitting without a jury and requires the judge to view the evidence fairly. Gulfport-Biloxi Reg’l Airport Auth. v. Montclair Travel Agency, Inc., 937 So. 2d 1000, 1004 (¶13) (Miss. Ct. App. 2006) (contrasting Rule 41(b) with Rule 50(a)). When considering a Rule 41(b) motion to dismiss, the judge must deny the motion to dismiss “only if the judge would be obliged to find for the plaintiff if the plaintiff’s evidence were all the evidence offered in the case.” Id. at 1004-05 (¶13) (quoting Stewart v. Merchs. Nat’l Bank, 700 So. 2d 255, 259 (Miss. 1997)).
The standard, then, is for the court to consider the plaintiff’s evidence fairly, and to overrule the motion only if the judge would be compelled to rule in the plaintiff’s favor if her case in chief were all the evidence in the record. The court is not obliged to view the evidence in a light most favorable to the plaintiff, as in jury trials, but only fairly.
The COA went on to find that the chancellor had considered Paula’s evidence fairly, and agreed with the chancellor’s analysis of why she had not met her burden of proof in the case.
The distinction between viewing the evidence in a light most favorable to the plaintiff and viewing it fairly can be major. In the former, the judge must tilt the perspective, so to speak, in the plaintiff’s favor. In the latter, the view is more even-handed. Knowing the distinction and being able to apply it to the facts in your case could mean the difference between winning and losing your case on a R41(b) motion. Keep in mind, though, that nothing can save your case if you have not met your burden of proof. That means using those checklists and proving every applicable factor.
The Bite of Draftsmanship
September 15, 2014 § Leave a comment
How you draft your legal instruments can have a huge impact on your clients’ future.
Take, for instance, the parties’ property settlement agreement (PSA) in the case of Aaron v. Aaron, a COA case handed down September 9, 2014. George and Annie Aaron were divorced in 2002 on the ground of irreconcilable differences. At the time, George was employed with the Amory Police Department, and was a participant in PERS. We don’t know from the court’s opinion the exact language of the parties’ agreement, but we know this much from ¶ 1:
As part of the divorce, George agreed to pay Annie one-half of his retirement funds acquired during the marriage. The judgment stated the funds would be transferred through a Qualified Domestic Relations Order (QDRO). At the time the judgment was entered, George was not receiving any retirement benefits. The judgment did not state which party was responsible for entering the QDRO.
We also can divine from the opinion that: the language of the PSA did not specify whether Annie was to receive 1/2 of the retirement accumulated during the marriage, or 1/2 of all George’s retirement, a significant portion of which would be earned after the divorce; it did not spell out what consideration would be given to future pay increases on George’s ultimate obligation to Annie; it also did not settle the question whether the payments were intended to be paid out in a lump sum as property settlement or whether they were intended to be paid monthly as benefits were paid out to George, in the nature of alimony.
The legal considerations that remained unaddressed in the parties’ agreement were, at least, the following:
- PERS takes the position that federal ERISA and Mississippi law do not allow division of PERS benefits by QDRO. The agreement should have provided that it would be divided by payment, unless George left PERS employment and withdrew his account, at which time it would be divided by specified percentages between them. No mention should have been made of a QDRO vis a vis the PERS benefits. Also, whose responsibility it was to trigger the payment of benefits should have been specified in the agreement.
- Final calculation of the PERS benefit is based on the highest four years of earnings. Since George was not a retirement age at the time of the divorce (he did not retire until 2011), the parties should have negotiated and included in their agreement how Annie’s 1/2 benefit would be calculated, taking into account the probability of George’s future pay increases.
- PERS benefits can not be paid out in a lump sum unless the employee leaves PERS employment. As mentioned above, this obvious point should have been addressed in the parties’ agreement. In essence, these parties had no choice but to have Annie’s share paid out over time. That is what the chancellor in Pruitt v. Pruitt tried to do, but was reversed by the COA. The problem, based on Pruitt, seems easy to address in a rational way, but is in reality deceptively difficult to resolve.
Every one of the foregoing deficiencies came back to bite these parties in the proverbial nether regions. Annie brought a contempt action against George because he did not initiate a QDRO, and for her unpaid benefits. George countered that he owed nothing, since PERS could not be divided by QDRO. The chancellor calculated what she concluded was Annie’s portion, and ordered that Annie receive that from George’s retirement payments as paid, and she awarded Annie a judgment with modest interest for the benefits that he had received and not shared with Annie. She died not find George in contempt.
George appealed, raising all of the points above. The COA affirmed.
It would have saved everyone involved a lot of legal fees, costs, aggravation, anxiety, and time if only some more attention and effort had been put into the drafting of the PSA in the first place. Yes, it would have required more time for negotiation and drafting, but it would have settled the issue as early as 2011 without the need for further litigation. It’s called draftsmanship.
