Fixing Your No-Show
July 2, 2014 § 5 Comments
It can happen to the most diligent lawyer. Date of the trial is mis-calendered, or failed to get calendered, or you get busy doing something else and — oops — you are a no-show when the trial is scheduled to go.
A no-show is what happened in the case of Reed v. Reed, handed down by the COA June 24, 2014.
Jimmy Reed and his lawyer did not appear at the time appointed for Jimmy’s divorce trial. Jimmy’s lawyer believed that the case would not proceed as scheduled because, at the time, the chancellor was gravely ill. The lawyer even approached the district’s other chancellor and asked him to sign a continuance order in the belief that the case had been reassigned to him. The other chancellor demurred, however, and advised the lawyer to await appointment of a special judge by the MSSC.
The ill chancellor, however, did appear on the day set for the trial, as did Jimmy’s estranged wife and her attorney. The chancellor tried unsuccessfully for an hour to contact Jimmy’s lawyer, delaying the start of the trial. When he could not make contact the judge let Mrs. Reed proceed, and he rendered a judgment granting her a divorce on terms not very favorable to Jimmy.
Jimmy’s counsel learned what had transpired the next day when he received a fax from counsel opposite. He filed a timely R59 motion, explaining the reason for the failure to appear, and attacking the judgment as inequitable. The chancellor overruled the motion, and Jimmy appealed.
Citing Lee v. Lee, 78 So.3d 326, 328 (Miss. 2012), the court noted that ” … [a] divorce judgment entered when a party fails to appear is a special kind of default judgment. And to obtain relief from such judgments, absent parties are required to raise the issues in post-trial motions …” Since Jimmy had done exactly that, the COA accepted the case and reversed the chancellor’s ruling because he ” … failed to support his [equitable distribution] findings with any analysis, discussion, or mention of the Ferguson factors or the evidence before him …”
A few points to take away from this case:
- If you find yourself in a no-show predicament, timely file a R59 motion and ask for rehearing. Don’t stop at explaining your unattendance; attack in the motion every aspect of the judgment. If you don’t, you will probably be barred from raising any claims of error that you did not mention in your motion.
- The ASS-U-ME principle was at work here (ask somebody; they can explain). If I were Jimmy’s lawyer, I would have prepared for trial and shown up unless I had an agreed, signed, filed order of continuance in hand. I admit that I can be obsessive-compulsive about these things, but by assuming that the case was off, Jimmy was jeopardized unnecessarily. It all turned out okay, but it took an appeal to get Jimmy back to the starting line.
- When the other side is a no-show, make sure that you put enough proof into the record (and do make a record) to support the judge’s findings. Then insist that the judge address and analyze all of the factors that apply in your particular case. Jimmy’s appeal would have been for naught had the chancellor simply analyzed the proof through the filter of the Ferguson factors.
- I think most judges give an ordinarily diligent lawyer the benefit of the doubt in these cases. Everyone can screw up occasionally. On the other hand, lawyers who are chronically late or don’t attend to their business, or who make it a habit not to show up don’t get that favorable treatment. I have no idea why the chancellor in this particular case rejected the explanation for Jimmy’s non-appearance, so I can’t say whether the benefit-of-the-doubt principle was in play.
One nice subtlety in this case is Judge Ishee’s description of Jimmy’s post-trial motion as one for “rehearing,” as opposed to “reconsideration,” as is the common term for it. You can read another post on rehearing vs. reconsideration here.
Can You Probate an Unliquidated Claim Against an Estate?
July 1, 2014 § 3 Comments
The decedent, Buchanan, is killed in an automobile accident in which he is at fault. The other driver, Powell, is seriously injured and his vehicle is destroyed.
Buchanan’s widow opens his estate, and in due course it is closed after all the statutory formalities have been observed.
Before the statute of limitations on his tort claim has run, Powell files a petition to reopen the estate so that he can pursue his personal injury claim against it. The chancellor dismisses the petition, ruling that Powell should have probated his claim within the statutory 90 days from publication, and, since he did not do so and the estate was now closed, his claim was barred.
Was the chancellor correct?
The question arose in the case of Powell v. Buchanan, 147 So.2d 110 (Miss. 1962). The court first ruled that Powell’s action was, indeed, a personal action that survived the death of the decedent, and that such a claim may not be probated, citing Bullock v. Young, 137 So.2d 777 (Miss. 1962).
So, if the claim survives the death of the decedent, but can not be probated, how does the plaintiff assert his claim? Here’s what the MSSC said (beginning at page 112):
The petitioner cannot sue until at least six months’ has expired from the appointment of an administratrix or executrix. The administratrix elects to close the estate as soon as possible after the six months. We do not believe the right of petitioner could be defeated in such manner. He had a right to present his claim in a court of law, and he had a right to present it against a representative of the estate. It was not necessary to undertake to surcharge the final account. When the petition was filed by the petitioner stating that he had an unliquidated claim against the estate and that the estate had been closed so he could not present it; and the petition showed his claim was not barred, then the chancellor should have appointed another administrator. The widow should have been appointed, or reappointed, if she desired to serve, but if she did not then the court should have appointed some other person to serve as such administrator. The petitioner was entitled to his day in court and in order that he might have it, the court, on his petition with a prayer for general relief, should have appointed another administrator. The administration had been closed with unfinished business pending, and with the petitioner under the law and our statutes yet having a right to present his cause of action in the proper court.
The case is therefore reversed and remanded with directions that an administrator be appointed in order that the unliquidated claim of the petitioner might be finally determined in the proper court. [Emphasis added]
This is one of those esoteric points that can elude even a well-travelled judge or lawyer. It’s a case worth filing away for future reference.
Thanks to Attorney Leonard B. Cobb.
Three Cases of Note
June 30, 2014 § Leave a comment
The MSSC handed down three decisions in the past year or so that will significantly change your practice. You need to take note of each of them and study how you can use them to your client’s advantage or defend against their operation in cases you are handling.
The first case is Collins v. Collins, handed down May 9, 2013. This is the case that said, once and for all, that the demarcation line for valuation of assets in a divorce is to be determined by the chancellor, based on the facts in the case.
Why is this case significant? Because it expressly overrules the COA decision in Pittman v. Pittman that laid down the rule that entry of the temporary judgment was a bright line where accumulation of marital asset value ceased.
How can you use this case to your client’s advantage? Look at values and find the date to your client’s advantage, and then have your client testify why the judge should select the preferred date. For example, if your client’s 401(k) has greatly appreciated in value over the course of the litigation, pick an early point and develop proof about why that is the most equitable date. And vice versa for the other side.
A previous post about Collins is here.
The second case is Sanford v. Sanford, decided October 31, 2013. Sanford finally puts an end to the practice of dictating into the record consents to divorce and property settlement agreements in irreconcilable differences divorces. MCA 93-5-2 specifically requires written agreement, and a verbal acquiescence, even on the record, will not do the job.
Why is this case significant? It marks the demise of Bougarde v. Bougarde, the lone case in which the practice had been okayed. Bougarde gave rise to uncertainty among many judges and lawyers as to whether and when a settlement announcement might pass muster as a final agreement.
How can you use this case to your client’s advantage? Bring a laptop computer to court with you and be ready to capture a settlement in the form of a written agreemment. You get to do the drafting, which means that you get to choose the language. You will have the advantage over the dinosaurs who still don’t know what a laptop (computer) is.
A previous post about Sanford is here.
The third case is Huseth v. Huseth, rendered April 10, 2014. In this case, the MSSC returned to the principle that the child support statutory guidelines are just that — guidelines — and that it is up to the chancellor to set child support after first addressing the factors set out in Gillespie v. Gillespie, 594 So.2d 620, 622 (Miss. 1992).
Why is this case significant? In a long line of cases since 1992, our appellate courts have applied the child support statute as mandatory, and cases that deviated without the proper finding of basis for deviation were reversed. Huseth says that before looking to the statute the chancellor must first consider and address the Gillespie factors. The statute then supplies a guideline for the judge to apply his or her discretion. As a practical matter, I think most judges will follow the guidelines. But that’s not a sure thing post-Huseth.
How can you use this case to your client’s advantage? Be sure to put on proof of the Gillespie factors. Make sure your client’s 8.05 is credible, because it’s unlikely that chancellors are going to take it at face value that your client really is going $800 in the hole every month so that he can’t afford to support his children. You might hear the judge advise your client to quit smoking and drinking, sell his truck, and cut off his cable and internet service so that he can pay child support.
Family Law CLE
June 27, 2014 § Leave a comment
As I’ve said before, I’m not in the business of promoting anybody’s products or services. I am, however, in the business of trying my best to improve chancery practice in Mississippi.
One of the best ways to improve your family law practice is to attend Professor Debbie Bell’s CLE seminar every year. I do, without fail, and I find it to be the most instructive, useful seminar on Mississippi family law that you can attend. The program focuses on key family law cases over the past year, with emphasis on how they impact your practice. I guarantee that you will come away with a set of case material that you will use through the year in your practice, as well as several ideas that will help you with cases you are handling right now.
For more info, or to register, go to www.msfamilylaw.com.
This year’s dates and locations:
Friday, July 18, 2014, at Mississippi Sports Hall of Fame and Museum in Jackson.
Friday, July 25, 2014, at Oxford Conference Center in Oxford.
Friday, August 1, 2014, at Imperial Palace in Biloxi.
The Better Chancery Practice Blog 