Reprise: How to Ensure that Your Case Survives MRCP 41(d)
June 19, 2014 § 4 Comments
WHEN RULE 41(D) COMES KNOCKING AT YOUR DOOR
September 8, 2010 § 8 Comments
Rule 41(d), MRCP, is the familiar rule by which the Chancery Clerk is authorized to send out a notice to all counsel and self-represented parties in cases ” … wherein there has been no action of record during the preceding twelve months …” that the case will be dismissed for want of prosecution. The rule requires the clerk to dismiss the action unless within thirty days of the notice, ” … action of record is taken or an application in writing is made to the court and good cause is shown why it should be continued as a pending case.”
You have received such a notice, and, galvanized into action, you toss it on your paralegal’s desk and say, “Here, take care of this,” as you saunter out the door trying not to be late for your tee time. The paralegal scours the files and finds that your usual response is to file something called “Notice to Keep Case on the Active Docket,” and she tosses a copy of it on the secretary’s desk and says, “Here, do me one of these,” and returns to her office to continue whittling away at a four-foot-tall mound of discovery. In due course, the secretary produces said pleading, you sign it, the paralegal files it, and everything is fine. Until the next week, when you find your case was dismissed despite your efforts. What went wrong?
In the case of Illinois Central Railroad Co. v. Moore, 994 So.2d 723, 728 (Miss. 2008), the Mississippi Supreme Court held that a Circuit Judge should have dismissed the plaintiff’s suit after he had received Rule 41(d) notice, and his attorney filed nothing more than letters with the court requesting that it not be dismissed. The court reasoned that Rule 41(d) requires that some procedural action that would have the effect of moving the case forward be filed, or that a proper motion under the rules be filed and noticed, the motion showing good cause why the action should not be dismiised and asking the court to rule affirmatively that it should not be dismissed.
There was evidence of severe dilatoriness on the part of plaintiff’s counsel in the ICC case. The appellate decision, however, did not turn on his want of action, but only found it to be an aggravating factor. The court’s holding turned on counsel’s non-compliance with the rules, and the result was dismissal of the lawsuit. Although dismissal under 41(d) is without prejudice, the dismissal in ICC was fatal due to the statute of limitations.
The Supreme Court decision noted that there has been a relaxed attitude about responses to 41(d) notices, but stated that it would not follow the same path. ICC now stands for the proposition that if you skirt by the rule and succeed in having your action kept on the active docket, you will likely fail if the other side appeals.
If you want to keep an action from being dismissed under Rule 41(d), simply follow the rule and either: (1) Take some action of record, such as serving discovery, or filing a legitimate motion to advance the case; or (2) File a motion with the court asking that it not be dismissed, stating good cause to support your position, and notice the motion for hearing before the thirty days expires. Anything short of either action could result in a favorable ruling by a more relaxed trial judge, but will leave you vulnerable on appeal.
Caveat: Remember that Uniform Chancery Court Rule 1.10 requires that discovery must be completed within 90 days of service of an answer, unless extended by the court. It is unlikely that this judge would have allowed either party an extension that would cause a case to be pending as long as a year. It would be difficult to convince a judge that propounding discovery after the discovery deadline has expired would be an action of record that would have the effect of moving the case forward.
Comment: The consequences of Rule 41(d) to a cause of action are usually not as dire in Chancery Court as they are in Circuit. Statutes of limitation are not as often a concern in Chancery. For clients on an unequal financial footing, however, a 41(d) dismissal can cause expenses and fees to increase dramatically, and may spell the end of meritorious litigation. It may also require you to represent a client through an appeal that you were not paid to handle, just to avoid some other action by your client.
2014 Comment … in this district, we require the clerk to bring us every response filed to a R41(d) notice. If the response des not have the effect of advancing the case on the docket, I enter an order instructing the attorney of the duty to do so and extend the dismissal date for a time, usually 30 days. If no action is taken, or the response still does not advance the case on the docket, I dismiss. The point is that a mere “Notice to keep case on the docket,” or “Request not to dismiss” will not do it. You have to show the court some evidence that the case still has signs of life.
When is Temporary Relief Available in Family Law Cases?
June 18, 2014 § 5 Comments
I have heard it said that chancery courts routinely grant temporary relief in any matters pending before them. Is that so? And in what matters is temporary relief available?
Let’s look at family law.
Anyone who has done any Mississippi family law knows that temporary relief is available in divorce cases. The authority of the chancery court to grant temporary relief in a divorce proceeding is found in MCA 93-5-17(2), which provides:
The chancellor in vacation may, upon reasonable notice, hear complaints for temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.
Divorce is a creature of statute unknown in the common law; therefore, any relief obtainable in a divorce must have its source in a statute. Since this statute is part of the title dealing with divorce, and is a subsection of the statute that requires divorce hearings to be held in open court, I am confident in saying that this particular statute is not authority to grant temporary relief outside the context of a divorce.
Likewise, in cases of determination of parentage, MCA 93-11-65(10) creates a remedy:
Upon motion of a party requesting temporary child support pending a determination of parentage, temporary support shall be ordered if there is clear and convincing evidence of paternity on the basis of genetic testing or other evidence, unless the court makes written findings of fact on the record that the award of temporary support would be unjust or inappropriate in a particular case.
Notice that the latter statute does not not include custody among the relief provided. The COA has held that both natural parents have an equal right to custody of the child, regardless whether parentage has been finally determined. So, on the one hand, it would appear in a custody dispute between parents in a parentage case that the tug-of-war between them must continue unabated by temporary custody because there is no provision in the statute for temporary custody. The conundrum is exacerbated by the simple fact that support is customarily (always?) paid to the parent with custody, which is certainly logical, because we have to know where the child will be in order to know where to direct the support. If the court has no statutory authority to award custody in such a case, how can the court award child support?
It could be that the chancellor may simply order extra-statutory temporary relief in a given case based on equitable principles. In the parentage case, for example, the court could award temporary custody in order to get to the statutorily permissible temporary support award.
But would such an order stand? After all, we know that there is no appeal of right from a temporary or interlocutory order.
I think the distinction may lie in the nature of the review. If the merits of the order are attacked, then I think the appeal fails. If the power of the court to grant the temporary relief is attacked, then I think the appeal would have merit. An example of the latter is Martin v. Falcon, #2013-IA-1985-SCT (December 5, 2013), in which Justice Coleman vacated a temporary order granting grandparent visitation.
Is there even a right to a temporary hearing in a grandparent visitation case? I would argue in the negative, for two reasons: (1) the grandparent visitation statute has no provision whatsoever for temporary relief, and like divorce and parentage, it is a creature solely of statute; and (2) to grant temporary relief is to presume on the ultimate issue that the petitioner is entitled to such relief, which is not always so.
Of course, temporary relief is expressly available in injuntions, per MRCP 65, in the form of a TRO. A TRO does require the existence of an emergency or danger of irreparable harm if no relief is immediately granted. And the domestic violence statutes incorporate such relief.
Custody modification cases and third-party custody cases are somewhat more problematical. There are statutes dealing with custody, and its award and forms, but they do not specifically mention temporary relief. In this district, we do not allow temporary relief in a child-custody-modification case unless there is an emergency or it is clearly necessary to protect the best interest of a child until a final determination may be made. To do otherwise would peremptorily adjudicate the ultimate issue in the case.
When the chancellor acts in an emergency or other exigent situation to protect the child, her actions are based on Article 6, § 159 of the Mississippi Constitution, which gives chancery courts “full jurisdiction” over “All matters in equity,” and “Minor’s business.” Custody has long been recognized as being under the mantle of chancery jurisdiction, and, indeed, our cases speak in terms of the chancellor being the “superior guardian” and protector of the child’s best interest. I think as between the apparent form required by statute and the chancellor’s determination that action must be taken for the best interest of a child, the court will and should go with the best interest every time.
I would reconcile all of the foregoing by saying that I believe that, in the absence of exigent circumstances requiring immediate intervention the court should avoid temporary relief unless there is a statutory provision or rule expressly providing that relief. Your chancellor may see it differently, based on an entirely different rationale, but that is the way I view it.
This post addresses temporary relief in family law matters. Temporary relief in the many other types of cases within chancery jurisdiction is the subject of another post.
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Thanks to Attorney George S. Whitten of Greenwood for supplying some of the material for this post.
Some Language to Add to your Fiduciary Orders
June 17, 2014 § 7 Comments
In this district we have had a problem with fiduciaries having been appointed and never qualified by taking the oath and posting any required bond, and consequently not having Letters issued.
A fiduciary has no authority to act unless and until that person has qualified, which requires taking the oath, posting any required bond, and having Letters issued.
In one case in my court the person appointed used the order appointing him, without Letters of Administration ever having been issued, to sell a car, and he closed a couple of bank accounts. He sold the car and pocketed the money; who knows what he did with the funds. The lawyer who opened the estate spent a considerable sum out of his own pocket trying to recover the estate’s money. Not surprisingly, the perpetrator was judgment proof and can no longer be found on this planet.
In another case, a woman (not the mother) testified that she was guardian of the child, but when I ordered the insurance attorney to get the guardianship file, it showed that only an order appointing her had been entered, and she had never taken an oath or posted a required $10,000 bond. Incidentally, she testified that her lawyer had told her that the order was adequate, and she proceeded to use that apparent authority to negotiate a settlement of the child’s claim.
We came up with some language that we now require all attorneys to include in their orders opening estates, guardianships, and conservatorships. You may find this language useful in your own district, and even if you find it superfluous, you just might conclude that there’s no harm in including it.
Here it is:
IT IS FURTHER ORDERED AND ADJUDGED that if the fiduciary has failed to qualify by posting the required bond, if any, taking the oath, and having appropriate Letters issued as required by this order and the laws of the State of Mississippi within thirty (30) days of entry of this order, then the Chancery Clerk is hereby ordered and directed to notify the court immediately of such failure, and the court shall enter an order dismissing this civil action without prejudice and without further notice to the fiduciary, or attorney of record for the fiduciary, or any other parties who have entered an appearance in this civil action.
IT IS FURTHER ORDERED AND ADJUDGED THAT THIS ORDER DOES NOT AUTHORIZE [Name] TO ACT AS THE FIDUCIARY FOR [Name of ward or decedent] UNLESS VALID LETTERS [Testamentary, or of Administration, or of Guardianship, or of Conservatorship] ARE ATTACHED HERETO.
IT IS FURTHER ORDERED AND ADJUDGED that persons who use or accept this order without the attached Letters as court authority to act or conduct the affairs of the [ward or decedent] shall be subject to sanctions by this court.
“Quote Unquote”
June 13, 2014 § Leave a comment
“Sometimes I wonder whether the world is being run by smart people who are putting us on or by imbeciles who really mean it.” — Mark Twain
“Justice is a concept. Muscle is the reality.” — Linda Blandford
“Throughout history it has been the inaction of those who could have acted, the indifference of those who should have known better, the silence of the voice of justice when it matters most, that have made it possible for evil to triumph.” — Haile Selassie
Four Years and Counting
June 12, 2014 § 17 Comments
This blog was born on June 14, 2010. This coming Saturday will mark its fourth birthday.
The inspiration to do this came from an exasperated chancellor in an adjoining district who called to inquire whether I was having problems, as he was, with attorneys not complying with the amended adoption pleading requirements and jurisdictional residence periods. Those amendments had been in effect over two years, and lawyers were still expressing surprise that there had been any changes in the statutes. I had been dealing with the matter one lawyer at a time, with scant progress.
I cast about for a way to address a wider audience: CLE? Newsletter? What would work best? One morning, enjoying one of my usual blog-readings, it occurred to me that, if I could build up a readership, I could get the word out more effectively. A blog could do that. And if the scope were widened enough to include many of the things I have learned over 40 years of practicing law and judging, then it might just be worthwhile.
So I started Chancery12, with “News and helpful information about practice in the 12th Chancery Court District, Place 2.” Later, I broadened the scope further, simply focusing on “Better Chancery Practice” in our Mississippi courts.
The result is that I have heard from lawyers and judges across the state (and even in other states) who have found this useful and helpful. Nearly 300 of you receive updates via email. There are 400-600 visitors per day, M-F.
I enjoy hearing from everyone. I don’t always have time to address your comments, emails and even correspondence. I hope that does not offend anyone.
The blog comments are always a good source of thoughful (sometimes humorous) interchange of views. If you have stood on the sidelines reluctant to comment, I encourage you to jump in.
I reckon we’ll keep on going a while.
Where Do We Go from Here?
June 11, 2014 § 2 Comments
I don’t know about you, but when I practiced I always wondered what to do with a case once it was remanded from the COA or MSSC. Do you start over? What is the effect of the appellate court’s ruling on the case on remand? Can the judge try the case on the record already presented? Can we amend to clear up some of the problems from the initial, unproductive attempt?
Do we start over?
Not exactly. The ancient law of Mississippi is that a remand restores the parties to the exact position that they occupied at the time of the reversed judgment or decree. Harris v. Newman, 6 Miss. 654 (1841). And where only a portion of the judgment is reversed, the effect is to place the parties in the same posture they were in before entry of that judgment, with the unaffected portions remaining in effect. Lloyd Wood Const. Co., Inc. v. Little, 623 So.2d 968, 972 (Miss.1993).
In a case where the appellate court reversed the granting of a divorce and remanded the case to the trial court, this would mean that the court would start from before entry of the reversed judgment, with the pleadings as they were at that point.
What is the effect of the appellate court’s instructions on the case on remand?
The appellate court’s ruling often includes instructions. These are the law of the case, and are binding on the trial court. In the preceding example, for instance, the appellate court might have directed that the court retry the issue of grounds for divorce to consider certain aspects, or, in another case, for the trial judge to consider and address Ferguson, Albright or Armstrong factors. I once represented a client in a case that we got reversed and remanded, with a COA finding that there had been a material change in circumstances adversely affecting a minor child, and directing the court to proceed accordingly. The remand trial would have proceeded on the assumption that two prongs of modification were assumed, and that best interest was all that remained, but we settled before that trial.
Are amendments permitted to clear up some of the problems from the initial, unproductive attempt?
Griffith addresses the point this way: “The remanding of a case to the trial court is for the purpose of a trial de novo, and the trial court has the same power to allow amendments to the pleadings …” as it had prior to the reversal. Griffith, Mississippi Chancery Practice, 2d Ed., 1950, § 697. See, also Pigford v. Ladner, 142 Miss. 435, 107 So. 658 (1926).
Can the judge try the case on the record already presented?
The purpose of the remand is for a new trial in which ” … the [parties] will be entitled to introduce … evidence anew, together with such additional evidence as [they] may desire to offer, and the defendants be allowed to meet the proof offered by the complainant … ” Clark v. Clark, 203 Miss. 28, 31, 33 So.2d 293 (1948). The scope of the trial on remand may vary considerably from the original trial.
But if the pleadings have not been amended, and the issues are the same, and the parties agree to submit the case to the court on the original record, with the judge to address omitted factors or other matters directed by the appellate court, then there would seem to be no problem. In fact, I read an opinion of the COA in the past year or so in which that very procedure was employed, and the COA on the second appeal merely recited that was done, without comment. I have not been able to find that case for this post.
Candor Toward the Tribunal
June 10, 2014 § Leave a comment
I am aware of two cases lately — neither in my court — in which lawyers filed pleadings with the court that were false and misleading, and then pursued those pleadings in an effort to reduce them to judgment.
In both cases, the lawyers knew that the facts stated (and sworn to by the clients) were false.
Rule of Professional Conduct (RPC) 3.3 states:
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
* * *
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
* * *
(c) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.
The comment to the rule makes it clear that the lawyer will be held responsible for pleadings filed with the court, although he is not required to have personal knowledge of their accuracy when filed. MRCP 11, which requires the attorney to sign every pleading filed, states that:
“The signature of an attorney constitutes a certificate that the attorney has read the pleading or motion; that to the best of the attorney’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.”
The requirement is so serious that any pleading that does not comply may be stricken as sham, and the action may proceed as if it had never been filed.
From the above, it should be obvious to even the greenest among us that there can be professional repercussions from playing fast and loose with this duty of candor.
Beyond the language of the rules, though, there is the lawyer’s relationship with the court to consider. Chancellors must rely on the honesty and good faith of lawyers who come before them in order to make correct decisions. When a lawyer stretches the truth, or conceals material facts, or presents information that is known to be untrue, that lawyer is inflicting grave injury on himself with the court. Once the judge has found an attorney to be untrustworthy, it may take years — if ever — for the lawyer to recover his lost standing with that judge. The penalties can include closer scrutiny, being required to prove and provide authority for even simple assertions, and skepticism toward the merit of that lawyer’s cases.
I have said before that your reputation with a judge is like a store of gold. If you spend it frugally and wisely, and only as truly needed, it will last you the length of your career. If you squander it, you may never gain it back.
A Helpful Primer on HCIT
June 9, 2014 § 2 Comments
Judge Maxwell of the COA often includes lucid, concise explanations of the law in his opinions. I find his statements of the law to be a helpful guide in resolving issues that come before me.
One of the most confusing areas of domestic law is how to define what is and is not habitual cruel and inhuman (not “inhumane”) treatment (HCIT), per MCA 93-5-1. In the case of Harmon v. Harmon, handed down June 3, 2014, the COA affirmed the chancellor’s award of a divorce in favor of Linda Harmon against Courtney Harmon on the ground of HCIT. Judge Maxwell, for the unanimous court, set out this helpful exposition on what constitutes HCIT under our law:
¶14. Courtney first argues the chancellor wrongly granted Linda a divorce based on habitual cruelty. See Miss. Code Ann. § 93-5-1 (Rev. 2013). To prove cruelty, a party mustshow conduct that either:
(1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the non[]offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.
Smith, 90 So. 3d at 1262 (¶10) (quoting Richard v. Richard, 711 So. 2d 884, 889 (¶22) (Miss.1998)). “The conduct must consist of something more than unkindness or rudeness[.]” Jackson v. Jackson, 922 So. 2d 53, 56 (¶4) (Miss. Ct. App. 2006) (quoting Horn v. Horn, 909So. 2d 1151, 1155 (¶7) (Miss. Ct. App. 2005)). Want of affection or incompatibility is not enough. Id. The complaining party must prove one of these two prongs by a preponderanceof the credible evidence. Smith, 90 So. 3d at 1262-63 (¶10).
¶15. Generally, habitually cruel conduct must be “routine and continuous.” Jackson, 922So. 2d at 56 (¶4) (citing Moore v. Moore, 757 So. 2d 1043, 1047 (¶16) (Miss. Ct. App.2000)). However, a pattern is not always required. Sometimes, a single act of physical violence is sufficient. Smith, 90 So. 3d at 1263 (¶13) (citing Curtis v. Curtis, 796 So. 2d1044, 1047 (¶8) (Miss. Ct. App. 2001)). But in cases like this where there is no physical violence, we consider the frequency and severity of the conduct, and the impact on the offended spouse. Id. “[V]erbal abuse, neglect, and the like,” considered independently, willnot amount to cruelty. Id. (quoting Jackson, 922 So. 2d at 57 (¶8)). But if these combinedacts manifest a course of revolting conduct, they may give rise to cruelty.Id.
¶16. In reviewing a cruelty-based divorce, “there is a dual focus on the conduct of the offending spouse and the impact of that conduct on the offended spouse.” Id. at 1263 (¶11)(quoting Bodne v. King, 835 So. 2d 52, 59 (¶24) (Miss. 2003)). This specific inquiry is subjective. Id. (citing Faries v. Faries, 607 So. 2d 1204, 1209 (Miss. 1992)). Instead of using an ordinary, reasonable-person standard, we concentrate on the conduct’s effect on the particular offended spouse. Id. (citing Faries, 607 So. 2d at 1209). Though a party alleging cruelty must generally corroborate his or her testimony, an exception is made “where corroboration is not reasonably possible because of the nature of the accusation.” Id. at(¶12).
On that last point — corroboration — Judge Maxwell adds this helpful footnote: “For example, corroboration may be unnecessary in unusual cases, such as isolation. Jones v. Jones, 43 So. 3d 465, 478 (¶30) (Miss. Ct. App. 2009). Further, “‘the corroborating evidence need not be sufficient in itself to establish the ground,’ but rather ‘need only provide enough supporting facts for a court to conclude that the plaintiff’s testimony is true.’” Id. (quoting Deborah H. Bell, Bell on Mississippi Family Law § 4.02[8][d] at 74(2005)).
That is essentially a hornbook on HCIT, complete with supporting authority, that you can use to your client’s benefit next time you have an HCIT case.
The Better Chancery Practice Blog 
*POOF* MRCP’s Comments are Gone …
June 16, 2014 § 4 Comments
… to be replaced by a pared-down version. The MSSC order entered June 12, 2014, is here. The order includes the text of the new comments.
You should note that these are not posted for comment. They are posted to give notice that the deed is done. The new comments take effect July 1, 2014.
In the interest of full disclosure, I am on the committee that crafted the new comments. The goal was to eliminate archaic case citations, language that merely repeated the rule, and references to pre-rules practice that are no longer helpful or comprehensible by attorneys who have been in practice fewer than 32 years (the period of time that the MRCP has been in effect). The language of the remaining material was clarified and made gender-neutral. I can assure you that the process was thorough — it took around three years — and the discussions were intense. Every constituent group of the bar and judiciary was represented. Where it was felt that a particular comment was needed for lawyers to have a basic understanding of a rule, careful attention was give to drafting language that would elucidate the rule. Some rules that have generated a large body of case law went uncommented.
If you find this development traumatizing, I suggest you do as I will do, and keep a couple of copies of the former comments handy. You’ll never know when they just might have that wee modicum of authority that you need to tip the scales in your client’s favor.
On a related note, I have heard from several sources that there was a growing sentiment among the MSSC to do away with the comments altogether because some have tried to use comments to try to expand the meaning of the rules. This latest order seems to be a middle route.