Rock, Paper, Scissors … Will, Pre-Nup, Quitclaim Deed
May 20, 2014 § 7 Comments
If I remember correctly, rock beats scissors, paper beats rock, and scissors beats paper.
But as among a will, a pre-nuptial agreement, and a quitclaim deed, which beats what? That was the question posed in Estate of Jones: Dixon v. Jones, decided by the COA on April 29, 2014.
Johnnie Lee Jones, the decedent, and his soon-to-be wife, Annie Ruth, entered into a prenuptial agreement on March 19, 1997. The agreement provided that, upon Johnnie Lee’s death, the home titled in his sole name was to go to Bonnie Jones Dixon, his daughter from a prior relationship. The home was located at 171 Vine Street in Jackson.
After their marriage, Johnnie and Annie Ruth lived together in the Vine Street residence.
On September 16, 1998, Johnnie executed a will leaving the Vine Street home to Annie Ruth for her life, at which point the property was devised to his sister, Eliza Mae Webster. The will included the customary language that it revoked ” any and all previous testaments.”
Beginning in 2001, Johnnie and Annie Ruth claimed the property as their homestead.
On December 14, 2005, Johnnie executed a quitclaim deed conveying the Vine Street property to himself and his daughter Bonnie as joint tenants with right of survivorship. Annie did not sign the deed, although she and Johnnie were still married at the time.
Johnnie died on January 22, 2011, and Annie Ruth, who continued to live in the Vine Street home, filed pleadings on November 29, 2011, to admit Johnnie’s will to probate. Before an order was entered, however, Bonnie filed suit for declaratory judgment that she was the rightful owner of the property, and for damages. Bonnie relied on both the pre-nuptial agreement and the quitclaim deed. On January 17, 2012, the chancellor admitted the will to probate.
On November 29, 2012, the chancellor denied the declaratory relief. The judge ruled that the will revoked the pre-nuptial agreement, and that the deed was statutorily void because it conveyed homestead and did not bear Annie Ruth’s signature. Bonnie appealed.
The COA rejected Bonnie’s argument that the word “testaments” as used in the revocation language of the will referred solely to instruments disposing of personal property only, and not real property. The COA held that the use of the term “testaments” was interchangeable with “will,” and that MCA 91-5-3 expressly provides that a devise may be revoked by a testator’s subsequent will. The court concluded that the will revoked the pre-nuptial agreement. Interestingly, Bonnie’s attorney cited Wikipedia in support of her argument, and the COA cited www.yourdictionary in reaching its conclusion. Modern times.
As for the quitclaim deed, the court agreed with the chancellor that the quitclaim deed was void. The court cited MCA 89-1-29: “A conveyance, mortgage, deed of trust or other incumbrance upon a homestead exempted from execution shall not be valid or binding unless signed by the spouse of the owner if the owner is married and living with the spouse or by an attorney in fact for the spouse.”
The court also cited this language from Ward v. Ward, 517 So.2d 571, 573 (Miss. 1987):
Our legislature has chosen to place a restriction on the transfer or encumbrance of homesteads[,] and therefore, homesteads in Mississippi may not be alienated except in compliance with those restrictions. There can be no operative conveyance or effectual release of the exemption unless the method pointed out by the statute is pursued with strictness[,] and no requirement of the statute may be waived by the husband and wife or by either of them. Chancery will not interfere to give relief where by express law there is a limitation on the power of alienation of the homestead[,] and the final relief sought is merely to relieve that limitation. (emphasis added)
Our statutes and the case law applying them are quite protective of spouses’ homestead rights. This case is one in a long line of cases that lean in that protective direction.
The other lesson to be learned here is that a subsequently-executed will that includes appropriate revocation language will revoke any and all previous testamentary documents, including a pre-nuptial agreement.
How Cases are Decided at the COA: Part Four
May 19, 2014 § 4 Comments
Continuing with Judge Griffis’s paper …
4. Full Court Consideration
a. Circulation
Each panel opinion is circulated to the non-panel judges (i.e., the “Full Court”) for consideration and vote. The briefs are not circulated with the final panel opinions.
When a panel opinion is in Full Court circulation, each non-panel Judges decides what materials they need to review to vote on the opinion. Each Judge may obtain the briefs, the record, the transcript or any other document filed in the case for their review and consideration. Each Judge may also talk to the panel Judges about the facts, issues, or the panel’s decision. With electronic filing of briefs, the briefs will be available for each non-panel Judge to access.
Each non-panel Judge is expected to vote to concur, specially concur, concur in result only, concur in part and in result, dissent, or concur in part/dissent in part. Just like a panel Judge, each non-panel Judge may also write a separate opinion or ask that the case be considered by the Court’s en banc conference. Each non-panel Judge may also offer suggestions or modifications to the opinion-writer.
b. Separate Opinion
If a non-panel Judge indicates the intent to write a separate opinion, the Judge is expected to prepare a separate opinion promptly. When the separate opinion is finished, it is sent to the majority opinion-writer to allow for revisions in the original opinion. The writing Judges then finalize their opinions.
c. Re-circulation
The majority and separate opinions are then circulated to all Judges for a vote. If the majority does not change, the final opinions are ready to be handed down.
If the majority changes (flips), the author of the separate opinion becomes the opinion-writer and must promptly produce a majority opinion. The other Judge may then change their opinion to a separate opinion. The flipped opinions are again circulated for a final vote to determine the Court’s final opinion.
The circulation and recirculation of opinions are an effort to arrive at a final decision of the Court. Although it does not occur often, an opinion may be circulated three or more times, with three or more opinions.
If the Court’s vote is tied at five-five, the trial court is considered to be the tie breaking vote. On a tie vote, the Court’s decision is to affirm the trial court. The Supreme Court has no obligation to consider a case that resulted in a tie at the Court of Appeals, but this is certainly a reason that favors consideration of the case by the Supreme Court.
5. Hand Down
The Court of Appeals’ final decisions are released or “handed down” every Tuesday at 1:30 p.m. on the Court’s website.
D. Rehearing
A motion for rehearing may be filed within fourteen days of the decision. MRAP 40(a). The motion shall state with particularity the points of law or fact which the court has overlooked or misapprehended and shall contain such argument in support of the motion as movant desires to present. The motion should be used to call attention to specific errors of law or fact which the opinion is thought to contain; the motion for rehearing is not intended to afford an opportunity for a mere repetition of the argument already considered by the court.
A response to the motion for rehearing may be filed within seven days of the motion. The failure to file a response within this time period waives the right to respond but does not confess the arguments made in the motion.
There is no oral argument on a motion for rehearing. A party can only file one motion for rehearing.
A motion for rehearing must be filed before a party may petition the Supreme Court for certiorari review of the Court of Appeals decision.
A motion for rehearing is limited to the consideration of whether the Court (1) overlooked a material fact in the record or controlling authority that would require a different result, and (2) misapplied or erroneously construed controlling authority.
E. Certiorari
The Supreme Court may consider the appeal of a Court of Appeals decision on a writ of certiorari. The grant of certiorari is discretionary and requires the vote of at least four Supreme Court Justices. Certiorari is to be granted to resolve “substantial questions of law of general significance.” MRAP 17(a).
A petition for a writ of certiorari must be filed and served within fourteen days of the Court of Appeals’ decision on the motion for rehearing. The petition can have a maximum of ten pages and must state the “precise basis on which the party seeks review by the Supreme Court.” MRAP 17(b). A response may be filed within seven days.
The Supreme Court must decide whether to grant certiorari within ninety days of the response. MRAP 17(e).
Note: The second part of Judge Griffis’s paper is “How Opinions are Written and Circulated,” which will be posted soon.
How Cases are Decided at the COA, Part Three
May 16, 2014 § Leave a comment
Continuing with Presiding Judge Griffis’s paper …
3. Panel Consideration
a. Preparation
Before the panel conference, the assigned Judge is expected to have thoroughly reviewed the briefs, the record, the transcript and controlling legal authorities. The other panel Judges are expected to have reviewed the briefs, the record excerpts and controlling legal authorities. The record and the transcript are available to the other panel JUdges upon request.
A Judge may assign a law clerk to work on each case. A law clerk for the assigned Judge often prepares an initial draft opinion for review, checks the citations to the record or case authority, or researches various issues. Some Judges circulate draft opinions prior to the panel conference, while others may use a draft opinion to present the case to the panel conference.
b. Discussion
At the panel conference, the assigned Judge presents the case. The presentation includes a detailed discussion of the case’s procedural history, the facts, the issues in controversy, the standard of review, the relevant legal authorities, and a recommendation for the decision.
The other panel Judges may inquire about matters included in the record and may, of course, discuss the relevant facts and law. At the conclusion of the discussion, each JUdge is expected to say whether they agree with the recommendation and why or why not.
The purpose of the panel conference is to make an initial decision as to the ultimate ruling and decide who will write the first opinion to be circulated.
c. Opinion Preparation and Circulation
Once a panel decision is made, the panel makes a formal writing assignment. In most case, at least one other Judge will agree ith the recommendation of the assigned Judge. The assigned Judge will then be designated as the opinion-writer and is expected to prepare and circulate a draft opinion to the other panel Judges.
If the assigned Judge is not in the majority, the Chief Judge or Presiding Judge will assign an opinion-writer from the JUdges who are in the majority. The newly designated opinion-writer will then be expected to prepare and circulate a draft opinion to the other panel Judges.
A panel opinion is prepared and circulated to all panel Judges for a vote. The vote may be to concur, specially concur, concur in result only, concur in part in result, dissent, or concur in part/dissent in part. If a panel Judge’s decision is anything other than to concur, the Judge is expected to write a separate opinion to address the reasons that they do not concur with the panel opinion.
Each panel Judge may write a separate opinion or ask that the case may be considered by the Court’s en banc conference. Each panel Judge may also offer suggestions or modifications to the opinion-writer.
d. Separate Opinions
At any time during the panel conference or circulation of opinions, a panel Judge may indicate the intent to write a separate opinion. The Judge is then expected to prepare a separate opinion promptly. When the separate opinion is finished, it is sent to the original opinion-writer to allow for revisions. The writing judges then finalize their opinions.
e. Re-circulation
The majority and separate opinions are then circulated to the panel for a vote. If the majority does not change, the final panel opinions will then circulate to non-panel Judges. If the majority changes, the author of the separate opinion becomes the opinion-writer and must promptly produce a panel majority opinion. (This is commonly referred to as a “flipped” opinion.) The other Judge may then change their opinion to a separate opinion. The flipped opinions are again circulated for a final vote to determine the final panel opinion.
Next: Full Court Consideration Through Petition for Cert.
How Cases are Decided at the COA, Part Two
May 15, 2014 § 1 Comment
Continuing with COA Presiding Judge Griffis’s paper:
C. The Decision Process
1. Initial Assignment
A case is assigned to the Court of Appeals by a notice of assignment. The Clerk prepares the notice and sends a copy to the parties. The Clerk also provides the Court with a list of cases assigned.
The case assignment list identifies each case assigned and makes an initial writing assignment to a Judge. That assignment is based on a random assignment protocol. The protocol tries to balance the workload among the Judges.
The case assignment list is sent to each Judge. If a Judge decides to recuse, the case is reassigned on a random rotation.
After the case asssignment list is circulated, the Clerk’s office delivers the appellate materials to the assigned Judge’s chambers. The appellate materials include all of the copies of the briefs, the record excerpts, the record, the transcript, the exhibits, and the Clerk’s file. The assigned writing Judge then initiates the review of the case.
2. Panel Conference
a. Sittings
The Court divides its work into six “sittings.” A sitting is similar to a term of court. Each sitting lasts for two months.
During a sitting, the Judges are divided among three panels. A panel includes at least three Judges, assigned by the Chief Judge. The Chief Judge or a Presiding Judge presides over each panel. The panel assignments are not disclosed.
Each panel considers the cases assigned to the panel by the panel Judges. Before the sitting begins, each JUdge decides which of the cases assigned will be submitted to the panel. On average, each Judge assigns ten cases to each sitting. The assigned Judge delivers each panel Judge a ccopy of the briefs and record excerpts for each case. The assigned Judge retains the record, transcript and the clerk’s papers.
The Docket Calendar is a published list of the cases assigned to each sitting. The Docket Calendar is disclosed on the Court’s website at the beginning of each sitting.
b. Oral Argument
The panel decides whether to grant oral argument. The panel’s decision is final and is not subject to review. The Court Administrator notifies the counsel of record when an oral argument is set.
The assigned Judges will participate in the oral argument. Non-panel Judges do not attend the oral argument but often watch the internet broadcast.
The internet broadcast of Supreme Court and Court of Appeals oral arguments may be accessed through the “Oral Argument Webcast” link on the Court’s website — www.court.ms.gov.
Oral arguments take place in the Court’s main courtroom, located on the first floor of the Carroll Gartin Justice Building. The Court also regularly hears oral argument at other locations.
The “Court on the Road” program has held oral arguments at Mississippi State University, the University of Southern Mississippi, Mississippi College School of Law, and the University of Mississippi School of Law. The Court has also held arguments at Mississippi Valley State University, William Carey College, Jones County JUnior College, and the Lamar County Courthouse, to name a few. Requests for Court on the Road programs to be held in your area may be made to the Court Administrator.
c. Panel Conference Dates
The Chief or Presiding Judge coordinates with the other Judges on the panel to set the conference dates. At a panel conference, all panel Judges meet to discuss each case. The panel conference makes a preliminary decision on the case, establishes the writing assignment, and starts the clock on internal deadlines to produce an opinion.
The Chief or Presiding Judge ensures that each case moves forward to a decision and preparation of an opinion without unnecessary delay. The Chief or Presiding Judge sets the dates for panel conferences and presides over the discussion. Panel conferences are normally set weekly for the first five or six weeks of each sitting.
Next: From Panel consideration through Circulation of the Opinion
“Pay no Attention to That Man Behind the Curtain”: How Cases are Decided at the COA, Part One
May 14, 2014 § 5 Comments
Like the great and mighty Wizard of Oz, appellate judges wield immense power from on high, and their ways are shrouded in mystery.
COA Presiding Judge Kenny Griffis set out to de-mystify how the court goes about its business, and put the details in a paper he delivered to the judges’ meeting last Fall. I’ve gotten his permission to republish it here, for your benefit, verbatim. Due to the length, it will take several posts to get through.
Here’s Part One:
A Texas appellate judge once noted the perception “that appellate judges watch from on high the legal battle fought elow, and when the dust and smoke of battle clear they come down out of the hills and shoot the wounded.” Black v. State, 723 SW2d 674, 677, n.1 (Tex.Crim.App. 1986)(Opinion, P.J. dissenting). Lawyers hear this and laugh, nervously. Trial judges hear it and laugh out lud, some even shout “amen.”
More than one trial judge has told me that they do not understand how appellate courts decde cases. This article should help you understand how the Mississippi Court of Appeals decides a case and writes the opinion.
I. How a decision is made at the Court of Appeals
A. Background
The Court of Appeals was created in 1993 to address the heavy workload of the Supreme Court. The purpose of the Court is to reduce delays in the resolution of appeals.
The Court consists of ten judges elected from five designated Court of Appeals districts. The judges are elected from a district, but they exercise statewide authority. Judges serve eight year terms, and their elections are staggered. The Chief Judge is selected by the Chief Justice of the Mississippi Supreme Court and serves a four year term.
Of the current judges, five were initially elected, and five were initially appointed. The current judges have also served as: chancellors (2), circuit judge (1), county judge (1), municipal judge (2), justice court judge (1), prosecutor (3), and supreme court law clerk (2).
B. Jurisdiction
Every appeal is filed with the Mississippi Supreme Court. The Supreme Court then decides which cases to assign to the Court of Appeals. The Supreme Court may assign a caseto the Court of Appeals at any time. There is no limit on the time that a case may be assigned to the Court of Appeals.
The jurisdiction of the Court of Appeals is limited to cases that are “deflected” or assigned by the Supreme Court. The Court of Appeals is often considered an “error correction” court. The Supreme Court may not assign cases that involve: (1) the imposition of the death penalty; (2) utility rates; (3) annexations; (4) bond issues; (5) election contests; or (6) a statute held unconstitutional by the trial court.
Miss. Code Ann. §9-4-3(1). The Supreme Court must retain all cases involving attorney discipline, judicial performance, and certified questions from federal court.
MRP 16(d). The Supreme Court will also retain cases that involve: (1) a major question of first impression; (2) fundamental and urgent issues of broad public importance requiring prompt or ultimate determination by the Supreme Court; (3) substantial constitutional questions as to the validity of a statute, ordinance, court rule, or administrative rule or regulation; and (4) issues on which there is an inconsistency in the decisions of the Court of Appeals or the Supreme Court or conflict between the decisions of the two courts.
The Supreme Court has a process to decide which cases to assign to the Court of Appeals. The Supreme Court retains about one of every five cases that are eligible for assignment. The Supreme Court routinely assigns cases within certain clearly defined categories. For example, the Court of Appeals will be assigned all cases that involve workers’ compensation, domestic relations, post-conviction relief, and adminidtrative agency decisions.
THe decision to assign a case to the Court of Appeals is final. No motion to reconsider an assignment may be filed. Only the Supreme Court can change the assignment of a case, and this happens rarely. When it does, the assignment is changed because the case was assigned to the Court of Appeals in violation of section 9-4-3(1).
The decisions of the Court of Appeals are final. The Supreme Court may review the Court’s decisions only by writ of certiorari. MRAP 17. Certiorari may be granted upon the vote of at least four Supreme Court Justices. Miss. Code Ann. §9-4-3(2).
Next: The Decision Process from initial Assignment Through Oral Argument
The Limits of Confidentiality
May 13, 2014 § 2 Comments
When most of us in the legal profession think of client confidentiality, we tend to think in absolute terms. That is, if it involves a communication between lawyer and client, or client documents or other forms of client secrets, it can not be disclosed.
The rule is not absolute, however. Rule of Professional Conduct (RPC) 1.6 provides six exceptions by which the lawyer may reveal otherwise confidential information of a client. RPC 3.3 and 4.1 complement 1.6.
MRE 502 is the lawyer-client privilege rule. It states that a lawyer may invoke the privilege on behalf of a client in order to keep attorney-client communications confidential. Subsection (d) sets out five exceptions in which the privilege may not be invoked: (1) if the lawyer acted to aid a client in committing a crime or fraud; (2) claimants through the same deceased client; (3) if the communication is relevant to a claim of breach of duty by a lawyer to a client; (4) if the communication pertains to an attested document to which the lawyer is the attesting witness; and (5) communications relevant to interests of joint clients in certain situations.
That third exception reads that there is no privilege under MRE 502:
… As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction.
Exception 3 was the subject of an interlocutory order entered by the MSSC May 8, 2014, in the case of Flechas v. Pitts. The matter was before the court on “Motion for Immediate, Extraordinary Relief, and Petition for Reconsideration and/or Rehearing of Previous Ruling Based on Newly Discovered Evidence and Related Legal Issues filed by Petitioner; the Motion to Dismiss and to Strike the Motion for Immediate, Extraordinary Relief, and Petition for Reconsideration and/or Rehearing of Previous Ruling Based on Newly Discovered Evidence and Related Legal Issues, or to Partially Strike filed by Respondent; Respondent’s Rule 48A(d) Mississippi Rules of Appellate Procedure Motion for Access to Sealed Document, and all responses and rebuttals.”
The issue arose in the course of litigation involving a will contest between Alyce Pitts and Todd Pitts, who claimed to be beneficiaries of the decedent, Troy Pitts, under competing wills. Attorney Flechas had represented Troy Pitts in various matters. He also represented Todd in the will contest. Flechas was served by Alyce with a subpoena duces tecum for “all files, records, electronic communications, written or any documents . . . including . . . all divorce files, personal injury defense files, estate files, Will or trust files, [and] deed preparation files.”
Flechas responded to the subpoena with a motion to withdraw, since the subpoena placed him in a testimonial role as to the contested matter at issue. He also objected to the subpoena on grounds of attorney-client privilege. The chancellor overruled both the motion and the objection based on MRE 503(d), ordering the attorney to produce all of the requested information. Flechas appealed.
The MSSC reversed the chancellor’s ruling, directing that he conduct an in camera inspection of every document produced in order to determine whether it is relevant to the issues in the will contest, and that he limit disclosure to those relevant documents. The MSSC’s rationale, involving analysis of MRE 502, MRCP 26, and MRCP 45, and applicable case law, is worth your time to read.
Alyce noted for the first time in her response to Flechas’s motion that she had filed pleadings with the trial court to disqualify the attorney, and asking that he be directed to disgorge funds allegedly held fraudulently. The chancellor defended his actions, in part, based on the fraudulent acts provision of MRE 502(d)(1). The Supreme Court took note, but did not alter its position.
In an age where lawyers are increasingly finding themselves in the cross-hairs of litigation involving themselves or others, this order is important authority for the proposition that you may be called upon to disclose your client’s information entrusted to you, along with your work product, and you had better be ready to help the court understand the limitations involved.
Contested Chancery Races
May 12, 2014 § Leave a comment
In the general election November 4, 2014 …
Eighth District (Hancock, Harrison and Stone), Place 2
- C. Stephen Benvenutti
- Jennifer Schloegel (incumbent)
Eighth District, Place 3
- Ronnie Cochran
- Sanford R. “Sandy” Steckler (Incumbent)
Eleventh District (Holmes, Leake, Madison and Yazoo)
- Barbara Ann Blunston
- Robert G. Clark, III
To fill the seat being vacated by Chancellor Janace Harvey-Goree
Thirteenth District (Covington, Jefferson Davis, Lawrence, Simpson and Smith), Place 1
- J. Larry Buffington
- David Shoemake (Incumbent)
Thirteenth District, Place 2
- Mary K. Burnham
- Deborah Kennedy
- Gerald M. Martin
To fill the seat being vacated by Chancellor Joe Dale Walker
Sixteenth District (George, Greene and Jackson), Place 1
- D. Neil Harris (incumbent)
- Paula S. Yancey
Sixteenth District, Place 3
- G. Charles “Chuck” Bordis (incumbent)
- Michael L. Fondren
- Gary L. Roberts
Eighteenth District (Benton, Calhoun, Lafayette, Marshall and Tippah), Place 1
- Glenn Alderson (incumbent)
- Carnelia Pettis Fondren
- Tina Duggard Scott
Eighteenth District, Place 2
- Helen Kennedy Robinson
- Robert Q. Whitwell (incumbent)
“Quote Unquote”
May 9, 2014 § Leave a comment
“Just as the water of the streams we see is small in amount compared to that which flows underground, so the idealism which becomes visible is small in amount compared with what men and women bear locked in their hearts … To unbind what is bound, to bring the underground waters to the surface: mankind is waiting and longing for such as can do that.” — Albert Schweitzer
“Trapped dreams must die.” — James Branch Cabell
“I hope for nothing. I fear nothing. I am free.” — Nikos Kazantzakis, epitaph 
Rejection and the GAL
May 8, 2014 § 3 Comments
Most of the guardians ad litem (GALs) with whom I talk react noticeably when the chancellor does not accept or follow their recommendations. Reactions range from mild puzzlement to indignation.
It has never been the rule in Mississippi that the chancellor is required to follow the GAL’s recommendations or accept the GAL’s conclusions. The rule that applies when the judge opts to go in a different direction was stated in the case of Floyd v. Floyd, 949 So. 2d 26, 29 (¶ 8) (Miss. 2007), which said:
This Court has held that a chancellor shall at least include a summary review of the recommendations of the guardian in the court’s findings of fact when the appointment of a guardian is required by law. S.N.C. v. J.R.D., Jr., 755 So. 2d [1077,] 1082 [(Miss. 2000)]. Furthermore, if the court rejects the recommendations of the guardian, the court’s findings must include its reasons for rejecting the guardian’s recommendations. Id. While a chancellor is in no way bound by a guardian’s recommendations, a summary of these recommendations in addition to his reasons for not adopting the recommendations is required in the chancellor’s findings of fact and conclusions of law. Id., Hensarling v. Hensarling, 824 So. 2d 583, 587 (Miss. 2002).
So, the requirements are that the judge’s ruling must include a summary review of the GAL’s recommendations, and must include its reasons for rejecting them.
In the MSSC case of Darnell v. Darnell, handed down April 24, 2014, the court held that the chancellor’s failure to follow the dictates of Floyd did not in and of itself warrant reversal, although the case was reversed on another ground. Here is how Justice Coleman’s opinion addressed the issue:
¶40. “The chancellor was in no way bound to follow the recommendation made by the [guardian ad litem].” Hensarling v. Hensarling, 824 So. 2d 583, 587 (¶ 10) (Miss. 2002). Under the Court’s standard of review, the Court does not find that the chancellor’s determination was manifestly wrong or that he abused his discretion.
In any case where a GAL is appointed to represent a child, the chancellor’s role as fact-finder requires the evidence presented by the GAL, as well as all other relevant evidence, to be considered and given such weight as the chancellor determines it deserves. Thus, the question to be answered by the Court is not . . . whether the chancellor ignored the GAL’s recommendation; but rather, whether the evidence in the record supports the chancellor’s decision.
Lorenz v. Strait, 987 So. 2d 427, 431 (¶ 16) (Miss. 2008) (internal citations omitted). In the case sub judice, the chancellor considered the guardian ad litem’s recommendations and conducted his own analysis of the Albright factors. The chancellor was the fact-finder, and his holding made clear the reasons for his decision. While it is the better practice for a chancellor to describe specifically why he or she disagrees with a guardian ad litem’s findings, the Court cannot find that the chancellor in the instant case abused his discretion in reaching the result he reached. Therefore, the issue is without merit.
In Darnell, the MSSC explained how the chancellor had done a thorough Albright analysis that addressed pertinent points of the GAL report. It found that the chancellor’s basis for not following the GAL report was clear in his Albright analysis.
I don’t see this case as pointing a new direction or changing the rules. What the court found here was that, although the chancellor did not expressly say why he was rejecting the GAL’s recommendations, his rationale was clear enough in his Albright findings so that the case did not require reversal on that point.
You should read this case for its analysis of the hearsay rule and its applicability in child sexual abuse cases. It’s particularly noteworthy for its exposition on the principle that hearsay may be introduced for purposes other than to prove the matter asserted.
The Nefarious Practice of Trial Briefs
May 7, 2014 § 11 Comments
The COA case of Dean v. Slade, et al., decided April 22, 2014, references a practice that I consider to be deceptively nefarious.
It’s the practice of presenting the trial judge in advance of trial with a document discussing the anticipated testimony and exhibits, the applicable law, and argument on the merits. These offerings are variously styled as “Trial Brief,” or “Trial Memorandum,” or the like.
In Dean, the content of the trial brief is described by the COA as ” … a summary of facts and the pertinent law on adverse possession.” The COA rejected the appellant’s argument that it was an improper ex parte communication because he had failed to raise it in an earlier appeal on the merits, and the court held that he could not relitigate the issue in this later appeal on other issues.
The COA did not address the propriety of this practice because that issue was not squarely presented, but it is a practice that I think needs to be addressed.
In a custody case I tried before the turn of the century, counsel opposite presented the judge at the opening of the trial with a so-called “Trial Binder” that included summaries of the expected testimony of each of his side’s witnesses, a copy of each exhibit he expected to offer in evidence, and a brief setting forth his argument on the law applicable to each contested issue. I vigorously objected, arguing that the documents included inadmissible hearsay, that some of the witnesses, some testimony, and some exhibits may not even make it into evidence, and that it was improper to attempt to influence the judge in that manner. The judge swept aside my objections, stating that there had been exhaustive discovery, and that she was sure there were no surprises. After a five-day trial, the judge ruled in favor of the other party. We appealed and the COA reversed on other grounds. The issue of the trial binder was not raised; there was enough other error that we did not need it.
A lawyer in this district told me of a recent experience he had in north Mississippi. He said that he was handed a “Trial Brief” immediately before the opening of trial, and was pretty steamed to see a certificate of service showing that a copy of the document had been mailed to the judge several days before. The trial brief included all of the same type information described above. When the chancellor opened court, the lawyer stood to voice his objection, but the judge cut him off with the announcement that he had received the trial brief, and when he discovered what it was, sealed it back in its envelope and set it aside without reading it. When his staff attorney told him that she had also received a copy, he directed her not to look at it either.
Good for him.
The chancellor’s job is to hear and consider all of the admissible evidence taken in open court, and to make an independent, impartial decision, untainted by outside information or influence. As the COA said recently in Burnham v. Burnham, “Chancellors are charged with the duty of being independent fact-finders … ” To me, these so-called trial briefs are nothing more than a naked attempt to influence the trial judge with information on the merits outside the trial that may be inadmissible and even inflammatory. I think it’s fair to say that it’s an underhanded way for an attorney to get the judge to see and possibly consider evidence that the lawyer knows he will be unsuccessful in getting into evidence at trial.
When a chancellor says, “Let it be admitted into evidence,” what she is really saying is, “I can hear or look at this evidence because it meets the threshhold requirements of the rules of evidence.” That can only be done in the context of a trial, where both sides have the opportunity to object and cross examine.
Another aspect of the experiences noted above is the ex parte nature of the communication. As I have pointed out here before, just because you hand opposing counsel a copy of the document that does not mean it is not earwigging. Uniform Chancery Court Rule (UCCR) 3.10 states in part:
No person shall undertake to discuss with or in the presence or hearing of the Chancellor the law or the facts or alleged facts of any litigated action then pending in the Court or likely to be instituted therein, except in the orderly progress of the trial, and arguments or briefs connected therewith. No attempt in any manner, except as above stated, to influence the Chancellor’s decision shall be made.
That reference to briefs in the rule does not alter, amend or cancel the language preceding it.
In Dean, the trial memo called into question the impartiality of the sitting chancellor to the extent that she recused herself from further participation in the case. The same can happen in your cases.
The only way that a pre-trial brief can be proper, in my opinion, is if a chancellor asks the parties for one addressing certain matters in advance of trial. Assuming it asks for argument on the law, I would think that would be perfectly permissible, because it puts both sides on an even footing. I can hardly imagine a chancellor, though, who would ever ask parties to include prospective evidence in the submission. The law, yes; evidence, no.
In my court, I would be offended by an attempt to present me with extra-evidentiary material in a matter pending before me. I believe most chancellors would agree, or at least would do as the north Mississippi chancellor did in his case. I want my opinion to reflect only what is in the record (sometimes I do a better job of that than other times), and nothing more. The old saying, “You can’t unring a bell,” is applicable here.
I wish there were an explicit ban against this practice. Maybe a rewording of UCCR 3.10 is in order.
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