A Rule 54(b) Dismissal With a Twist
June 3, 2014 § Leave a comment
We’ve talked here numerous times about the unappealability of a judgment that disposes than fewer than all of the issues pending before the court. If you type “54(b)” in that search box over there it will take you to the many posts on the subject.
The COA case of Newson v. Newson, handed down May 13, 2014, presents a scenario that just might apply in one of your cases, so you should take notice.
In May, 2011, the chancellor entered a judgment granting Lori Newson a divorce from her husband, Anthony, on the ground of adultery. On that day, Anthony’s attorney advised the court that his client had filed for bankruptcy, so the judge reserved ruling on alimony and equitable distribution until the status of the bankruptcy was clarified.
In March, 2012, the chancellor gave the parties the go-ahead to proceed. In August, 2012, the parties submitted a partial agreement, and the court made a partial ruling. The court stated that “the responsibility of the indebtedness of the respective parties, spousal support/alimony, attorney’s fees and/or costs owed by the parties would be reserved for a final hearing. Apparently there was another hearing, because in October, 2012, the court entered an order styled or referred to as a final order, granting Lori periodic alimony, and finding that Anthony was in arrears in the sum of more than $64,000 in alimony, for which he was in contempt. The judge left the record open for Lori’s attorney to present a statement of services rendered so that he could adjudicate attorney’s fees. Anthony filed a motion asking the court to reconsider (R59, I guess, since there is no such thing as a motion for reconsideration), which the court overruled. Anthony appealed.
The COA predictably ruled that, since the chancellor had left the record open without finally adjudicating the issue of attorney’s fees, and without certifying the case, the COA was without jurisdiction and dismissed the appeal.
Now, here’s the twist …
Quite often lawyers ask the court to combine into the final hearing the contempt issues that accrue during the pendency of a divorce. It’s not unusual for the court in such a situation to adjudicate finally all of the divorce issues — grounds, custody, child support, equitable distribution, alimony, attorney’s fees on the divorce — and then to treat the contempt issues. In addressing the contempt issues, the court many times will order that the contemnor do certain things to purge himself of contempt, and for the matter to be reviewed at a later date. Sometimes there is a second or even a third review hearing. In such a case, you are stuck with an unappealable divorce judgment until the trial judge finally adjudicates everything.
Unless …
- You file a R59 motion (within ten days of the original judgment) asking the court to add the “express determination that there is no just reason for delay,” per R 54(b), and directing entry of a final judgment on the issues of divorce, custody, equitable distribution, alimony, attorney’s fees on the divorce, leaving the contempt issues to take their own, separate course. Or …
- You could make a motion at the conclusion of your case that the issues be severed, and that the court make the R54(b) certification to be included in the final judgment.
Of course, you could ask the court not to combine the contempt issues in with the final divorce hearing in the first place, but most clients want the hourly billing and the courtroom time to end, so it’s usually more efficient from a time and law-weariness standpoint to get it all over with in one hearing.
This is one of those situations where you need to pay attention to where you are and how you got there. Once you realize you are faced with a judgment that may not be appealable for quite some time, you need to take steps to extricate your client from that bind.
Waiting for a Sign
June 2, 2014 § Leave a comment
Consider this description of what Joel Misita argued was a sign …
“It is a three-sided structure with a floor and a corrugated metal roof. It is constructed of metal and wood. It is triangular in shape and connects to three poles that form a frame, with two wheels. Each side is eighteen feet in length.The height is approximately fifteen feet, and the structure is capable of being raised higher. Exterior steps and a landing are attached to the back side. Two sides of the structure serve as illuminated signage. Each of those two sides contains four exterior lights that extend outward from the roofline a few feet and hang down, resembling street lamps. On the remaining side, the back side, a singlelight illuminates the door and exterior steps used for entry. The door may be locked by key and has glass window panes. An aerial power line provides electricity to the interior of the structure, in addition to the outside lighting. The interior is approximately 140 square feet. It is a fully-enclosed room, complete with a floor and a roof. The room is air-conditioned and serves as a showroom for some of Misita’s works. Although wheels are attached, the structure has not been moved since Misita placed it in its current position, by fitting and cross-bolting the frame into permanently attached receptors set by concrete into the ground.”
He took that position because he had constructed the thing on a three-acre parcel that was subject to a restrictive covnenant that “No structures are to be erected on the property.” If it’s a sign, it’s not a structure, right? His neighbors, the Conns, disagreed and filed suit in chancery court.
The chancellor ruled that the edifice was, indeed, a structure in violation of the restrictive covenant, and ordered Joel to take it down. Joel appealed.
The COA affirmed the chancellor’s authority to enforce the restrictive covenant, but reversed the finding that it was a structure, finding instead that it was a sign, as Joel maintained. The MSSC granted the Conns’ petition for cert.
In the case of Misita v. Conn, handed down May 15, 2014, the MSSC reversed the COA on whether the thing was a structure, and affirmed and reinstated the chancellor’s ruling. After concluding that the restrictions do run with the land and are enforceable between these parties, the court turned to the sign-or-structure issue:
¶10. … [W]e now analyze whether the object of this dispute is a structure or not. “Generally, courts do not look with favor on restrictive covenants.” Kemp v. Lake Serene Prop. Owners Ass’n, Inc., 256 So. 2d 924, 926 (Miss. 1971). “Such covenants are subject more or less to a strict construction and in the case of ambiguity, construction is usually most strongly against the person seeking the restriction and in favor of the person being restricted.” Id. “An important corollary rule, however, is that the clear and unambiguous wording of protective covenants will not be disregarded merely because a use is prohibited or restricted.” Andrews v. Lake Serene Prop. Owners Ass’n, 434 So. 2d 1328, 1331 (Miss. 1983). “If the intent to prohibit or restrict be expressed in clear and unambiguous wording, enforcement is available in the courts of this state.” Id. “The language of restrictive covenants is to be read ‘in its ordinary sense,’ considering the entire document as well as the circumstances surrounding its formulation to ascertain its meaning, purpose and intents.” Stokes [v. Bd. of Dir. of La Cav Imp. Co.], 654 So.2d [524,] at 527 [(Miss. 1995)].
¶11. Both the circumstances and the plain language of the deed evidence that the word “structure” is clear and unambiguous and has broader application than sixty-two-feet-high buildings. “A reviewing court is concerned with what the contracting parties have said to each other, not some secret thought of one not communicated to the other.” Royer Homes, 857 So. 2d at 752 (quoting Turner v. Terry, 799 So. 2d 25, 32 (Miss. 2001)). Therefore, the language of the restriction should be read in its “ordinary sense.”
¶12. We find that Misita’s “sign” is a “structure.” It is a one-room structure, complete with roof, floor, air conditioning, lights, door with window panes, and a staircase, inter alia. While not a bridge or dam, it is akin to a building or edifice, and is clearly “something built or constructed. Despite its adaptability for transport, it had not been moved since Misita erected it. The chancellor, who physically inspected the structure, found that it “is anchored to pipes which are sunk in the ground and Misita further secured the pipes by concrete.”
¶13. Black’s Law Dictionary defines a structure as “[a]ny construction, production, or piece of work artificially built up or composed of parts purposefully joined together.” Black’s Law Dictionary 1464 (8th ed. 2004). In Sullivan v. Kolb,the Court of Appeals defined “structure” as “[s]omething made up of a number of parts that are held or put together in a particular way. —The way in which parts are arranged or put together to form a whole; makeup.—The interrelation or arrangement of parts in a complex entity.—Something constructed.” Sullivan v. Kolb, 742 So. 2d 771, 777 (Miss. Ct. App. 1999) (citing The American Heritage College Dictionary (3d ed. 1993)). It is a structure under both Black’s and Sullivan, as it is “composed of parts purposely joined together.” We find no error in the chancellor’s finding.
The court also pointed out in Fn 7 that the COA’s conclusion that the object was not a structure because it was not a building, dam, or bridge was not “consistent with its common usage, for there are many structures that do no qualify as a building, dam, or bridge, e.g., the Washington Monument, the Statue of Liberty, or the Great Sphinx, inter alia.”
This case is a nice complement to Rawaid d\b\a B.P. Quickmart v. Murguia & Arias Grocery, LLC, 124 So. 3d 118, 121 (Miss. App. 2013), which involved a dispute over interpretation of a restrictive covenant between store owners on adjoining property. Rawaid charged that the Mexican grocery next door violated a restrictive covenant against locating a convenience store on the property. The COA affirmed the chancellor’s conclusion that it did not. The opinion quotes Chancellor Malski’s sage finding that if a customer “ … were driving by these two stores and wanted to buy convenience type items—chips, soft drinks, or gas—even though these items were available at M&A Grocery, [he] would surely go to BP Quickmart. If [he] wanted to buy a piñata, . . . [he] would go to M&A Grocery.” But what about an enchilada to go?
Reprise: Probating a Lost Will or a Copy
May 29, 2014 § 2 Comments
Reprise replays posts from the past that you may find useful today …
LOST WILLS
January 5, 2011 § 2 Comments
Does it ever happen to you that an heir shows up in your office and says something to the effect that “Mom says you kept the original of dad’s will. All we have is this [dogeared, coffee-stained, footprinted] copy,” and hands you a bedraggled handful of papyrus? Well, if it hasn’t, it will.
Of course, you did not retain the original [for you younger attorneys: NEVER keep the original of your client’s will]. So what will you do with this forlorn sheaf?
You will probate it. Yes, probate it. But it’s only a copy, you say; and the original will is required to be produced (See, MCA § 91-7-5, -7 and -31). True. But it is possible to probate a lost or destroyed will.
In the case of Estate of Mitchell, 623 So.2d 274, 275 (Miss. 1993), the court said:
The law regarding admission into probate of a lost will is discussed at length in Warren v. Sidney’s Estate, 183 Miss. 669, 184 So. 806 (1938). Sidney’s Estate sets forth the elements necessary to probate a copy of a lost will are: (1) the proof of the existence of the will; (2) evidence of its loss or destruction; and (3) proof of its contents. Sidney’s Estate, 183 Miss. at 675-76, 184 So. at 807. A fourth element has been added: (4) that the testator did not destroy the will with the intent to revoke it. Robert A. Weems, Wills and Estates § 7-17, p. 216 (1983). This last element, which is most central to this case, arose from the theory that when a will cannot be found following the death of a testator and it can be shown that the testator was the last person in possession of the will, there arises a rebuttable presumption of revocation.
Where a will which cannot be found following the death of the testator is shown to have been in his possession when last seen, the presumption is, in the absence of other evidence, that he destroyed it animo revocandi … 57 Am.Jur., Wills, § 551. Adams v. Davis, 233 Miss. 228, 237, 102 So.2d 190, 193 (1958); Phinizee v. Alexander, 210 Miss. 196, 200, 49 So.2d 250, 252 (1950); Horner, Probate Prac. & Est. § 79 (4th ed.). This presumption extends to all duplicate copies, even executed duplicates. Adams, 233 Miss. at 237, 102 So.2d at 194; Phinizee, 210 Miss. at 199, 49 So.2d at 252; Horner § 79.
The proponent of the will must prove each of these elements by clear and convincing evidence. See Estate of Leggett v. Smith, 584 So.2d 400, 403 (Miss.1991); Estate of Willis v. Willis, 207 So.2d 348, 349 (Miss.1968); Adams, 233 Miss. at 237-38, 102 So.2d at 194. (“The intent to revoke must appear clearly and unequivocally.” Sidney’s Estate, 183 Miss. at 676, 184 So. at 807. “The policy of the law requires such contents to be established by the clearest, most convincing and satisfactory proof.” Robert A. Weems, Wills and Estates § 7-17, p. 216 (1983).
Your petition will have to recite on personal knowledge of the petitioner, or supported by affidavits on personal knowledge, all four of the required factors.
You should probate the lost or destroyed will in solemn form. To do otherwise gives an unfair advantage to the proponent of the missing document. Probate in solemn form also seals off the protests of other interested parties and, as a practical matter, takes you directly to the hearing with notice that you will likely wind up in anyway.
At hearing, you will need to prove your four elements by clear and convincing evidence.
- Proving the existence of the will is not usually much of a problem. You will have that copy, or, if no copy is available, someone with personal knowledge can testify that the will did exist. MRE 1001-1008 would appear to govern the issue. As Rule 1008 states, the issue is for the trier of fact to determine.
- Loss of the will can be proven by testimony that the decedent kept his or her papers in a particular place and that an exhaustive search has not turned it up, or that the cabinet where the will was kept was destroyed by fire, or that it was in a repository that has now vanished.
- The “Dead Man’s Statute” has been supplanted by MRE 803(3), so proof of its contents should not be a major obstacle, so long as there is a witness with personal knowledge.
- And the same hearsay exception would apply to the testator’s destruction or intended revocation.
An interesting wrinkle appears in an ancient case, Vining v. Hall, 40 Miss. 83 (Miss. Err. & App. 1866), that is still good law. In Vining, there was conflicting and inconclusive testimony about the contents of the lost or destroyed will, but no disagreement that it included a revocation clause expressly revoking all prior wills. The court held that the revocation clause was effective despite the fact that the dispositive terms of the will could not be determined. See, Weems, Wills and Administration of Estates in Mississippi, Third Ed., § 7.15.
How Opinions are Written and Circulated in the COA
May 28, 2014 § 7 Comments
We recently had the benefit of a series of posts in which Presiding Judge Kenny Griffis explained the COA’s deliberation process from assignment of an appeal by the MSSc through the granting of cert.
Now Judge Griffis continues with his description of the process by which opinions are written and circulated.
How Opinions are Written and Circulated
“A judge rarely performs his function adequately unless the case before him is adequately presented.” — Louis D. Brandeis, “The Living Law”
A. Circulation of cases from other panels
Each week, I receive opinions from other panels; we call this Full Court circulation. Each opinion in Full Court circulation has been through a panel conference and was approved by at least two Judges. My decision is whether I can rely on the panel’s work and join the opinion?
I start with the opinion. I read it carefully. If I have any question about the opinion, I get the briefs, the transcript, or the record to give the case my full consideration. Often, I read the cases cited in the opinion to determine whether I can agree with the analysis. When I am satisfied, I can vote to concur with the opinion.
If I disagree with the opinion or if I am unsure, I can talk to the writing Judge, other panel Judges or any of my colleagues to see if they share my concerns. I can also conduct my own research and review. Often, I may ask the writing Judge to consider a modification to the opinion to address my concern. If a modification is not sufficient, I may write a separate opinion and provide it to the writing Judge.
If I decide to write a separate opinion, I must write an opinion that accurately discusses my concerns with the Court’s opinion. My separate opinion is circulated again with the panel opinion. If the majority of the Court agrees with my separate opinion, I have to write a new majority opinion to recirculate once again.
B. Circulation of cases from my panels
Each week, I also receive opinions in panel circulation. These opinions were written by the other Judges on my panels.
In these cases, I have already read the briefs and the record excerpts. I often reread the briefs and my notes from my preparation for the panel conference. I will use the record excerpts to find the materials that I need from the record or ask for the transcript or the record to review before I sign off on the opinion. I will read the cases that I think are relevant and necessary for me to join the panel opinion or decide to write a separate opinion.
At the panel conference, I heard the assigned Judge’s presentation and recommendation. I asked questions and voted on the recommendation. When the panel opinion is circulated, I have to check the opinion to make sure that the assigned Judge wrote the opinion based on the panel’s vote and consistent with my concerns. If I have questions about the record, I must conduct an extensive review of the record.
If I have questions or concerns about the opinion, I communicate with the writing Judge to improve the opinion. For example, I may disagree with the factual presentation and ask that other facts be added. I may also ask that the opinion include another case or citation to different authority. If I concur with the result reached in the panel opinion, I want to help the writing Judge issue a correct, adequate, and thorough opinion for the Full Court’s consideration.
If I disagree with the opinion, I can write a separate opinion and provide it to the writing Judge. My separate opinion will be circulated along with the revised panel majority opinion (the opinion-writer may revise the opinion to address my separate opinion). If the majority of the panel changes, the case has flipped. I become the opinion-writer, and I have to write the majority opinion to circulate.
My separate opinion may not carry the day at panel but, upon Full Court circulation, the case may flip after all the Judges have voted. There remains the chance that my position may prevail, and I may have to write the majority opinion.
C. Cases initially assigned to me to write
As soon as a case is assigned to me as the writing Judge, my clerks start to work on the opinion. I assign one clerk to each case. I ask the clerk to read the briefs, review the record, and read the parts of the transcript that are relevant to this case. I expect my clerk to prepare a draft opinion.
I normally start to review a case with all of the briefs, the record excerpts and a draft opinion in front of me. I almost always start with the appellant’s brief. I try to read each brief all the way through at one sitting. If the trial judge has written an opinion, I will interrupt the reading of the briefs to read the trial judge’s opinion as soon as I can.
I then read and edit my clerk’s draft opinion. I want to make sure the draft opinion has an accurate statement of facts and procedural history. I may make some notes about changes that need to be made or facts that we may need to examine in the record. I want to make sure that the opinion has accurately stated the positions of the parties. I will come back later and edit the legal analysis.
When I am assigned as the writing Judge, I focus my review from the beginning on the opinion. I read the briefs to decide the case and produce an opinion. I immediately begin to consider which brief will help me, as a reference guide, to write the opinion.
I prefer to have a final opinion ready to present at the panel conference. I plan my panel presentation based on my draft opinion. If other Judges are concerned about an issue or topic, I can tell them how I plan to write it in my opinion. If another Judge is concerned about the presentation of a fact or case authority in the opinion, I note their concern and revise the opinion to address the concern. If there are no objections or concerns, my opinion will be ready to circulate as soon as possible.
III. Conclusion
Almost one hundred years ago, the Mississippi Supreme Court complained about the fact that the “burden of case law has become unbearable to both bench and bar.” Yazoo & M.V.R. Co. v. James, 108 Miss. 852, 67 So. 484 (1915). Mississippi case law is burdensome. I try to write short, clear and crisp opinions. There are many cases that require a longer, more detailed opinion.
I hope that this material will help you understand the Mississippi Court of Appeals. Thank you for the opportunity to serve on the Court of Appeals.
Forbes v. St. Martin Reversed
May 27, 2014 § 10 Comments
Back in March, 2013, the COA reversed a chancellor’s ruling that granted summary judgment in favor of a Louisiana lawyer in a legal malpractice claim based primarily on a claim of breach of attorney-client fiduciary duties. The COA’s ruling in Forbes v. St. Martin was the subject of a post on this blog.
The MSSC, on May 22, 2014, reversed the COA’s ruling, reinstating and affirming the chancellor’s grant of summary judgment in the case.
If you do any contingent fee work, you should read this opinion. Also, Justice Lamar, for the majority, includes an interesting exposition on the principle that a lawyer’s violation of the Rules of Professional Conduct in and of itself does not necessarily give rise to a cause of action for malpractice against the lawyer.
In my 2013 post, I spelled out how fractured the COA was in its vote. Here’s what the MSSC’s looked like:
WALLER, C.J., KITCHENS AND KING, JJ., CONCUR. KITCHENS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY LAMAR AND KING, JJ.; WALLER, C.J., JOINS IN PART. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND COLEMAN, JJ. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND CHANDLER, J. RANDOLPH, P.J., AND PIERCE, J., NOT PARTICIPATING.
So it was: Lamar, Waller, King and Kitchens for the majority; Dickinson, Chandler and Coleman in the minority; and Randolph and Pierce on the sidelines.
As I have said in both of these posts, there are many ethical and professionalism overtones in this case that you may find helpful, especially in the current trend in which others pore over lawyers’ work after the fact looking to discover anything actionable.
If Private School Expenses are Included, You Must Say so in the PSA
May 22, 2014 § 3 Comments
Andrea Gaienne and Michael McMillin were divorced from each other in 2007, on the sole ground of irreconcilable differences. They shared joint legal custody, and Michael got “primary physical custody” of the two children, who were then ages 7 and 3. The parties’ PSA included the following language:
3. Child Support and School Expenses. Wife will not be required to pay child support to Husband, as Husband acknowledges and represents unto the Court that he has sufficient income in excess of that set out in the Mississippi Child Support Guidelines to fully support the minor children in his custody without contributions of child support from the Wife. However, Husband and Wife agree that each will pay one-half of any and all daycare expenses, and any other expenses relating to daycare or school, including school supplies, and sports activities for the minor children, including the costs of any uniforms, fees, and travel expenses for sports activities.
. . .
12. College Education and Expenses. Husband will continue payments to the Mississippi Impact for the minor children for their college tuition and Wife agrees to contribute and pay $500.00 per year to the Mississippi Impact fund for the minor childrens’ college tuition beginning in 2007. Husband and Wife further agree that whatever college expenses are not covered by the Mississippi Impact fund, that as such college expenses that are not covered become due, Husband and Wife will discuss and confer with one another as to which are reasonable for college for the minor children, they and will [sic] decide, if possible, the amount that each will pay toward said college expenses, and if they cannot agree, then Husband and Wife agree that the Chancery Court of Warren County will make such decisions regard[ing] the college expenses for the minor children. That this agreement will extend throughout the attainment of a bachelor’s degree or equivalent. This obligation may extend past the twenty-first birthday of either child, but it shall not extend past the twenty-third birthday of either child. Total expenses for which the Husband and Wife may be responsible and may agree on include the following: tuition, room and board, books, student fees, transportation expenses, fraternity or sorority dues, fees or expenses, and a reasonable amount of discretionary spending money. Husband and Wife further agree to consult with one another and with each minor child as to the choice of the appropriate college or university. The college or university shall be selected by the parties and the child, the majority rule.
The seven-year-old was enrolled in public school at the time of the divorce, but, after a bullying incident the parties enrolled him in a private school, sharing the tuition. Andrea thought she and Michael had an agreement that she would be relieved of the Impact payments in consideration of sharing the private school tuition, but when Michael would not acknowledge that in writing, she filed pleadings in chancery court seeking modification or clarification that she was not required by the language of the PSA to contribute to pre-college private school tuition. Michael countered with a contempt action.
The chancellor found that the agreement did require Andrea to contribute to the private school tuition, and found her in contempt. Andrea appealed.
In a ruling handed down May 15, 2014, the MSSC in Gaienne v. McMillin, addressed the issue. Justice Randolph wrote for the majority:
I. Gaiennie is not obligated to pay for private-school tuition.
¶8. “While a chancellor’s decisions in a [domestic] action are reviewed for manifest error, a property settlement agreement is a contract, and contract interpretation is a question of law, which is reviewed de novo.” McFarland v. McFarland, 105 So. 3d 1111, 1118 (Miss. 2013) (citing Harris v. Harris, 988 So. 2d 376, 378 (Miss. 2008)). This Court applies a three-tiered approach to contract interpretation. Facilities, Inc. v. Rogers-Usry Chevrolet, Inc., 908 So.2d 107, 111 (Miss. 2005). First, we apply the “four corners” test, wherein this Court “looks to the language that the parties used in expressing their agreement.” Id. “When construing a contract, we will read the contract as a whole, so as to give effect to all of its clauses.” Id. “On the other hand, if the contract is unclear or ambiguous, the court should attempt to ‘harmonize the provisions in accord with the parties’ apparent intent.” Id. (quoting Pursue Energy Corp. v. Perkins, 558 So. 2d 349, 352 (Miss. 1990)). “The mere fact that the parties disagree about the meaning of a provision of a contract does not make the contract ambiguous as a matter of law.” Cherry v. Anthony, Gibbs, Sage, 501 So. 2d 416, 419 (Miss. 1987). Secondly, if the contract is unclear or ambiguous, this Court applies the “discretionary ‘canons’ of contract construction.” Facilities, 908 So. 2d at 111. Thirdly, “if the contract continues to evade clarity as to the parties’ intent, the court should consider extrinsic or parol evidence.” Id.
¶9. Gaiennie argues that, under the terms of the property-settlement agreement, she is not obligated to pay one-half of private-school expenses. Gaiennie points to the absence of the word “tuition” in the “school expenses” provision as a clear and unambiguous indication that precollege private-school tuition was not part of the property-settlement agreement. Gaiennie also argues that there was no consideration of private school at the time the property-settlement agreement was signed. McMillin argues that the plain meaning of the phrase “any other expense related to daycare or school” necessarily encompasses private school tuition, as private-school tuition is a school-related expense.
¶10. We disagree. The absence of any reference to private school or private-school tuition in provision three controls the issue. “When a contract is clear and unambiguous, this Court ‘is not concerned with what the parties may have meant or intended but rather what they said, for the language employed in a contract is the surest guide to what was intended.’” Ivison v. Ivison, 762 So. 2d 329, 335 (Miss. 2000) (citing Shaw v. Burchfield, 481 So. 2d 247, 252 (Miss. 1985)). Looking to the four corners of the agreement, we find that it is not ambiguous. Tuition is conspicuously absent from the “school expenses” provision. (See Zweber v. Zweber, 102 So. 3d 1098, 1101-02 (Miss. 2012) (holding that “flying lessons were not included in the final judgment of divorce).
¶11. Notwithstanding that the plain language of the agreement requires no private-school tuition, if we accepted Gaiennie’s argument that absence of the word “tuition” creates an ambiguity, the result would be no different, for we would first attempt to harmonize the provisions in accord with the parties’ apparent intent. The fact that tuition was specifically included within “college expenses,” but not “school expenses” reveals the parties’ intent that private-school tuition was not intended under the agreement.
¶12. Even if we went beyond the “four-corners test,” and looked to the intent of the parties, Gaiennie would still prevail. Neither party disputes that, at the time the agreement was signed, the eldest child was enrolled in public school. Neither party disputes that, at the time the agreement was signed, it was their intent for the children to attend public school. The children attended public school for nearly three years before a bullying incident prompted consideration of private school. We find that, because private-school tuition was not specified in the agreement, we must reverse the chancellor’s holding requiring Gaiennie to pay for one-half of the children’s private-school tuition.
This decision underscores a recurring theme in PSA-interpretation cases: If you don’t specify that a particular expense is covered by the agreement, don’t assume that the court is going to write that requirement into it for you. This is especially true in cases involving private-school enrollment.
Oh, and notice the reference to Ivison in the opinion. If you click on the link it will take you to a previous post on that case that further highlights the perils of leaving things in an agreement unsaid that really should be said.
What Does One Do with the Alligators When One Can’t Drain the Swamp?
May 21, 2014 § 13 Comments
The old saw, “When you are up to your a$$ in alligators, drain the swamp,” has many useful and apt applications.
But what about when that swamp full of alligators is on your neighbor’s property, out of your control?
The latter is the situation that confronted Tom and Consandra Christmas. In 2003, they purchased a 35-acre tract of land adjacent to property owned by Exxon-Mobil (Exxon). According to the Christmases, it took them about four years to discover: (a) that the Exxon property was a waste-disposal site; and (b) that it was infested with alligators. As to (b), the Christmases claimed that their property value was impaired by the teeming gator population, and that they had lost two calves and a dog to the carniverous creatures.
They sued Exxon based on nuisance, seeking damages rather than abatement. Although they initially complained about contamination of their property, they dropped that claim. The sole remaining issue was whether the gators constituted an actionable nuisance. The Circuit Judge granted summary judgment in favor of Exxon, finding that the SOL had run, that there were no recoverable damages, and that Exxon could not legally be held liable for wild creatures on its property.
The Christmases appealed, and the COA reversed and remanded, concluding that there was a factual dispute. Exxon petitioned for cert, which was granted.
In the case of Christmas v. Exxon-Mobil, handed down May 15, 2014, the MSSC reversed the COA, reinstating and affirming the Circuit Court ruling. In its opinion, penned by Justice Lamar for the majority, the court said this:
¶9. The Christmases’ wild-alligator-nuisance claim is a case of first impression in Mississippi. However, other jurisdictions have held that private persons cannot be held liable for the acts of wild animals on their property that are not reduced to possession. See Sickmen v. United States, 184 F. 2d 616, 618 (7th Cir. 1950) (stating “a private person could not be held liable for the trespasses of animals which are ferae naturae, and which have not been reduced to possession, but which exist in a state of nature”); Roberts v. Brewer, 276 So. 2d 574, 582 (Ala. 1973). We agree. [Footnotes omitted]
¶10. Alligators are a protected species and are managed exclusively by the Mississippi Department of Wildlife, Fisheries, and Parks. Our Legislature has declared it illegal “for any person to disturb an alligator nest; to buy, sell, take or possess alligator eggs; to buy, sell, hunt, kill, catch, chase, or possess alligators or parts thereof except under permit from the Department.” Additionally, the Department narrowly defines what constitutes a “nuisance alligator” and strictly regulates the capture and removal of the same.Consequently, allowing wild alligators to constitute a private nuisance would subject landowners to liability for something over which they have no control. Exxon responded in the only legally permissible way it could to the Christmases’ alligator complaints: it called the Mississippi Department of Wildlife, Fisheries, and Parks and asked for the alligator population on its property to be reduced. Therefore, we hold that the presence of wild alligators “not reduced to possession, but which exist in a state of nature” cannot constitute a private nuisance for which a land owner can be held liable. Exxon is entitled to summary judgment. [Footnote omitted]
There must have been enough conclusive information in the affidavits of the parties for the court to find that there was no genuine issue of material fact there, although in the court’s recitation of the facts, it certainly does appear that there was a dispute whether the varmints had been brought in by Exxon’s predecessor in title or were wild. No matter, though, since there was no evidence that they were “reduced to possession” by the oil company.
I hope MDWFP has granted the Christmases a permit to abate with extreme prejudice any poodle-chomping nuisances that might stray onto their property. It’s so unpleasant to have to battle eight-foot-long reptiles while trying to enjoy a cookout in one’s own back yard.
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