Wrongful Death and Chancery Court
March 6, 2014 § 3 Comments
If you are going to do any wrongful death practice at all, you must familiarize yourself with the MSSC’s decision in the seminal case of Long v. McKinney, 897 So.2d 160 (Miss. 2004), reh den. April 7, 2005.
The decision clarifies many important concepts involved in wrongful death claims, including priority of jurisdiction, the distinction between heirs and wrongful death beneficiaries, allocation of attorneys fees, costs and expenses, representation, conflicts of interest, and control of litigation.
What is important in this case to the chancery practitioner, however, is Justice Dickinson’s exposition on the role of chancery court.
There is much confusion in the bar, and perhaps the bench as well, about exactly what is the proper role of chancery court in wrongful death. Justice Dickinson expounds:
¶59. Perhaps no aspect of wrongful death litigation is more misunderstood and misapplied than the role of the chancery court.[Fn 13] With respect to a wrongful death suit to be pursued in circuit court, chancery jurisdiction should be invoked for the following purposes:
Fn 13. The misunderstanding can be partly attributed to the Uniform Chancery Court Rules, which address petitions for authority to compromise, and petitions for allowance of attorney fees, in wrongful death suits. U.C.C.R. 6.10, 6.12. These rules apply only to wrongful death suits which require chancery jurisdiction. See discussion infra.
Estate.
¶60. In the event the litigants wish to pursue a claim on behalf of the estate of the deceased, [Fn 14] such estate must, of course, be opened and administered through the chancery court. As is true in all estates administered through the chancery court, chancery approval is required for the appointment of the personal representative of the estate, whether executor, executrix, administrator or administratrix.
Fn 14. We recognize that, because of the limited recovery available to the estate in many cases, litigants may choose, with advice of counsel, to proceed without including a claim on behalf of the personal representative or the estate. As discussed infra, such decision should be made only after full disclosure to all who might benefit from the estate.
¶61. There is no general requirement under law that the personal representative obtain chancery approval to pursue the claims of the estate in the litigation. Nor is there a general requirement that counsel representing the personal representative and the estate in the litigation obtain prior chancery approval of such representation or the agreement for compensation of counsel. However, obtaining such prior approval is a widely accepted and wise practice.[Fn15] Such prior approval will, in most instances, avoid difficulty when the chancellor is approached for an order approving the accountings and the final distribution of estate proceeds, where such payments include compensation to counsel.
Fn 15. This is especially true where counsel representing the estate in the wrongful death litigation has not agreed, and does not intend, to represent the estate generally.
¶62. Where a recovery is had by the estate in the litigation, the proceeds must be administered and distributed though the chancery court in the same manner as other assets of the estate, and counsel for the estate must be paid from estate proceeds or assets, upon approval of the chancery court in the same manner as other debts and obligations of the estate. * * *
Minors.
¶66. Frequently, wrongful death litigation will involve a minor, either as an heir of the estate, a wrongful death beneficiary, or both. In such cases, the representation of the minor’s interests, and any agreement for the payment of attorney fees from the minor’s share of proceeds, must be approved by a chancellor, as in other cases. [BCP Note: settlement of the minor’s claim must also be approved by the chncellor, in the same manner as any other minor’s settlement.]
Determination of wrongful death beneficiaries.
¶67. Section 11-7-13 provides that wrongful death litigation may be brought by the personal representative of the deceased or by any one or more of several statutory beneficiaries, for the benefit of all entitled to recover. Unless all persons entitled to recover join in the suit, those who do have a fiduciary obligation to those do not. Miss. Code Ann § 91-1-27 (Rev. 2004) provides for a chancery determination of the heirs at law of a decedent; that is, those who inherit in the absence of a will. Although our statutes mandate no specific procedure for the identification of wrongful death beneficiaries, a chancery court may make such determinations. Those bringing the action, together with their counsel, have a duty to identify the beneficiaries, and they should do so early in the proceedings. [Fn 16]
Fn 16. Recognizing that the lack of a specific procedural framework for determining wrongful death beneficiaries is a handicap for practitioners, this Court – in its continuing review of procedural rules – will address this need.
One of the biggest sources of confusion, in my experience, is the disconnect between the status of persons as heirs and as wrongful death beneficiaries. The categories overlap, but they are not the same. A person may be a wrongful death beneficiary, and yet not be an heir. You need to read and stidy the statutes to learn the difference and to be able to identify all of the individuals who must be included. Merely filing an action to determine and discover unknown heirs at law will not identify all the wrongful death beneficiaries.
From a chancellor’s perspective, I think the most important aspect of all is that of the minor’s settlement. You can make any agreement in circuit court about how to settle the wrongful death action, but you can not tie the hands of the chancellor as to whether the settlement is reasonable or adequate for the child(ren), or as the amount of fees to which it is subject, or to its amount.
A Comment or Two on Comments
March 5, 2014 § Leave a comment
The official policy of The Better Chancery Practice Blog is to encourage comments. But there are some limitations, and that’s because this is a blog that intends to be a resource for lawyers and judges. It’s not a legal advice blog for laypeople, and it’s not a place to vent about the injustices of the world; there are plenty of web sites and blogs for that sort of thing. Not here, though.
With that in mind, here are some pointers:
- Your comment can be published anonymously, but only if I know who you are. That requires a valid email address and your identity. Two reasons for that: (1) I feel responsible for the content here; and (2) if you feel strongly enough about something to put words on the page, you should have the integrity to stand behind your words.
- Most comments I reject come from persons who are not legal professionals. Many ask basic questions about law or procedure that I can’t answer because the law prohibits me from giving legal advice. Others are critical of lawyers or the legal system, and this site is not intended to serve as a forum for that.
- Humor and enlightenment are always welcome, no matter who you are.
- Commercial comments are treated as spam, even if you are a provider of legal services or legal support services. This is not an advertisement site.
Once I approve a comment from you, your subsequent comments are approved by the system automatically, until I feel you need to back to being moderated, at which point I flip the switch. That hasn’t happened with anybody.
If you read a post and feel moved to offer an observation, an insight, a joke, a critique, a question, or a war story, don’t hold back. Just jump on in.
Past Recollection Recorded
March 4, 2014 § Leave a comment
We talked in a post here last week about how to cope with the forgetful witness. That post focused on refreshing the present recollection of a witness with a writing or other object per MRE 612. Once the witness’s ability to recall has been restored, the witness may then go forward with his testimony.
But how does one handle the case where the witness simply has no present recollection whatsoever, even after your best effort under MRE 612?
Well, if the witness has no recollection whatsoever, the witness should be excused, because he does not meet at least one of the most basic criteria of a competent witness, which are the ability to recall and relate truthfully. MRE 601, 602, 603; See, e.g., Goforth v. State, 70 Miss.3d 174 (Miss. 2011).
If, however, the witness once did have personal knowledge, but now has insufficient recollection, and there is a record made or adopted by the witness while the matter was fresh on his mind, MRE 803(5) gives you a way to get those matters before the court.
Here are the steps:
- Establish that the witness once had personal knowledge of the matter, but now has insufficient recollection to testify independently, fully and accurately.
- Establish that there is a written or recorded record of the matter that was made by or adopted by the witness while it was within his memory and was within his knowledge.
- Have the witness confirm that it correctly reflects the witness’s knowledge at the time.
- Ask that the statement be admitted. If the court deems it admissible, then MRE 803(5) provides that it “may be read into evidence,” but it is not itself received as an exhibit unless offered by an adverse party. This is a somewhat curious procedure, and I have never seen it done this way, but that is what the rule dictates.
An example of MRE 803(5) in action is where a physician is called as a witness to testify about a person’s physical and medical condition when the doctor examined him. She has no independent recollection on the day of trial of this particular patient’s condition as it existed at the time in question, but she has her patient record, either dictated by her at the time or recorded by a nurse or aid and adopted by the doctor as an accurate reflection of the facts while they were fresh in her memory. See, e.g., Harness v. State, 58 So.3d 612 (Miss. 2009).
MRE 803(5) and 612 are two excellent tools at your disposal to overcome the dilemma of the witness stranded alone on the witness stand devoid of memory.
When a document is admitted into evidence, or the court overrules an objection allowing a witness to testify as to a particular point, all that means is that the information gets to the judge either in the form of something that the judge can look at and study, or verbally. Either way, when it is in evidence, it is fair game for the court to weigh and take it into account in its ruling. It’s your job to get those key items into the judge’s hands to look at, or into the judge’s ear.
When you quit thinking about the MRE as a collection of obstacles to the admission of evidence, and begin seeing them in terms of how they offer you many portals to the court’s consideration, you will find your trials a whole lot easier and more successful.
Some Changes Coming to a Chancery District Near You?
March 3, 2014 § Leave a comment
There is legislation wending its way through the halls of the Capital that might end up making some changes in your chancery court district.
HB 1026 has passed the House and is before the Senate. If it would pass in its current form here are some of the changes you could expect in chancery:
- Third District (DeSoto, Grenada, Montgomery, Panola, Tate, Yalobusha). Adds one additional chancellor to bring the total to four. Two chancellors would be elected from DeSoto, and two would be elected from the remaining counties. Current chancellors are Lynchard, Lundy, and Cobb.
- Fourth District (Amite, Franklin, Pike, Walthall). Adds one chancellor. Current lone chancellor is Halford. This district is now one of only four one-judge chancery districts in the state. If this change goes through, that would leave the following one-judge districts: Second (Newton, Scott and Jasper) Clark; Fifteenth (Copiah and Lincoln), Patten; Nineteenth (Jones and Wayne), McKenzie.
- Ninth District (Washington, Sunflower, Humphreys, Sharkey, Issaquena, and Warren). Would surrender Humphries to a newly-created Twenty-First District, leaving Washington, Sunflower, Sharkey, Issaquena, and Warren . Current chancellors are Barnes, Weathersby and Wilson.
- Eleventh District (Madison, Yazoo, Holmes, Leake). Would surrender Yazoo and Holmes to a newly-created Twenty-First District, leaving Madison and Leake in the eleventh. Current chancellors are Goree and Brewer.
- Twentieth District (Rankin). Would add one chancellor. Current chancellors are Grant and Fairly.
- Twenty-First District (Humphries, Holmes and Yazoo). Would create this district. Number of chancellors is not specified in the bill, as far as I can tell.
- There are numerous changes to arrangement of precincts within subdistricts. If your district has subdistricts, you might want to check the bill to see whether any changes are being made.
There are also changes made in circuit court districts and judgeships.
Of course, this legislation still has to make it through the Senate, and then through conference, and then get the Governor’s signature before it becomes law, and it may see some substantial revisions in the process. If it does survive to become law, however, it will make some of the most visible changes in the chancery landscape that most of us have seen in many years.
Trials of the Earth
February 28, 2014 § Leave a comment
Anyone who knows me can tell you that I am an epic history nerd.
So, when Circuit Judge Ashley Hines recently told me about a remarkable memoir of Mississippi Delta life in the 1880’s, I made it my business that very day to find and buy a copy at Square Books in Oxford.
The book is Trials of the Earth, by Mary Hamilton, who lived from 1866 to 1937. How her papers came to be published is a story in itself.
In 1931, Delta writer Helen Dick Davis and her husband, Reuben, moved to a home that Mr. Davis had built in Phillip, Mississippi, north of Greenwood. Reuben’s younger half-brother married Mary Hamilton’s daughter, Edris, and it was through this family connection that Helen Davis came to know and befriend Mary Hamilton, who lived nearby at the time.
As they whiled away time together, Helen was enthralled by Mary’s tales of a Delta altogether unknown and foreign to Helen’s experiences. The Delta that Helen knew was rich farmland under cultivation, civilized towns, culture and agriculture. The Delta that Mary painted in vivid hues was a nearly impenetrable wilderness of virgin timber and flood-prone bottomlands where people lived in isolation, in peril from sudden floods, storms, panthers, wolves, bears, snakes, and disease. It was a land where one’s very existence had to be wrested from the earth every day. Mere survival came at the cost of bone-wrecking toil.
Helen urged Mary to reduce her memories to writing, but the elderly woman, then in her mid-sixties, at first declined. It was only after she fell ill and had a feverish dream which she interpreted to mean that she should commit her story to paper that she began writing. And write she did. In 1933, she turned over a 150,000-word handwritten manuscript to Helen, who edited it and wrote a preface. She submitted it to Little Brown publishing house, which rejected it.
Before she could submit it to another publisher, however, she got word from Mary not to try any more to publish it. Mary said that her dead husband, Frank, had come to her in a dream and told her that the stories were their “private Valentine,” not for others to read. Helen put the manuscript away.
Helen’s daughter, Carolyn, discovered the manuscript in 1991, and submitted it to the University of Mississippi Press, where JoAnne Morris, wife of Willie Morris, was Senior Editor. Before she married Willie Morris, she had been JoAnne Prichard of Yazoo City, a co-worker of Helen Davis. The book was accepted for publication. It was released in 1992, only a few months after Helen died, and it included a foreword by Mississippian Ellen Douglas.
Mary Hamilton’s heirs filed suit to stop publication and to establish their claim to the rights, and they succeeded on both counts. The book sold out the run published by University Press, and lay un-republished until January, 2013, when it was self-published including the Davis and Douglas additions, and an introduction by Morgan Freeman. The 2013 edition is in paperback, and is available through Nautilus Publishing of Oxford.
As Ellen Douglas points out in her foreword, we have many portrayals of Delta life in the form of slave narratives and tales of upper-class plantation life, but memoirs depicting the everyday struggles of poor whites in the lowlands along the Mississippi River before the land was cleared and put into cultivation are practically non-existent. The story of the poor white settler of that era is what Mary Hamilton gives us.
In eloquent, simple language, Mary’s book tells how she was forced into a marriage to a secretive, mysterious Englishman when she was only 17 years old, and how they embarked on a hard life full of struggles, minor successes, gargantuan failures, births and deaths, dangers, joys and heartaches. They were among the first white people to enter the Mississippi Delta to clear it and make it habitable. Remarkably, all this occurred in only the twenty years or so before the dawn of the twentieth century. The following passage will give you a sense of what they were up against:
… Cane, undergrowth, blackberry briars, grape and poison oak and muscadine vines, all growing to enormous size out of that rich Delta ground, interlaced through that fallen timber so that it was one tangled mat. Not a trail or path through it.
But the whole country was almost as bad. A man couldn’t get through any of the woods without a compass in one hand and a cane axe in the other to blaze every foot of the way. In throwing the timber the men had to cut a path to their tree every morning. then they would estimate the direction they would throw the tree, and each man cut a path to get away in when the tree started to fall, and God help them if they couldn’t outrun the falling tree.
At the end of the book is a holographic transcription of Mary’s writing, demonstrating at once her command of imagery and description, as well as her inadequate spelling, grammar and lack of understanding of punctuation and paragraphing. The editors took care to preserve her plain language, correcting only as needed to render a readable product. Fair warning: the editors also left intact her language describing those of other races, which reflect the attitudes of her day, and not those appropriate to the 21st century.
You don’t have to be a history nerd to be fascinated by this book. It’s a story that oscillates between vibrant adventure and humdrum existence, pretty much like most people’s lives, which is a key reason why it is so approachable and entertaining.
Refreshing Recollection
February 27, 2014 § 3 Comments
The forgetful witness can be the bane of even the most accomplished barrister. Faced with what could prove to be a fatal memory lapse, lawyers twist themselves into proverbial pretzels cajoling, wheedling, leading, suggesting, and — when those ploys don’t work — yelling, at witnesses whose memories somehow have escaped them altogether.
To compound matters, counsel opposite, perhaps stimulated by the scent of blood in the water, pounces shark-like with a confounding flurry of objections, insisting that since the witness says she does not remember, no further questioning on the point should be allowed.
It doesn’t have to be so complicated, however.
Mississippi law has long recognized the right of a witness to have her memory refreshed, and our law has allowed anything to be used to refresh independent recollection. Refreshing recollection is not limited to written documents. As MRE 612 states “If a witness uses a writing, recording or object to refresh his memory for the purposes of testifying …” Or, as a law professor eloquently put it, you can use a pencil or a flower pot, if that will do the job.
Bear in mind that the process of refreshing recollection is intended to restore the witness’s independent recollection of a matter. It is not a process of educating a witness about matters beyond his ken, nor is it a backdoor path to admission of an otherwise inadmissible item. Once the witness’s recollection has been restored, the witness continues her testimony based on her now-restored recollection, independent of the refreshing item.
Here are the proper steps:
- Establish that the witness is unable to recall a particular thing.
- Counsel may then use leading questions to refresh the witness’s memory (e.g., “Ms. Jones, don’t you recall telling me last week about the amount of money you deposited into that account?”) See, e.g., James v. State, 86 So.3d 286 (Miss. App. 2012). Also, whether to allow leading questions is entirely within the trial court’s discretion. Dorrough v. State, 812 So.2d 1077 (Miss. App. 2001).
- If the witness still can not recall, counsel may then show the witness the writing, recording or object, which the witness reads or looks at silently. An example: “Ms. Jones, let me hand you this deposit slip, and ask you to read it to yourself.”
- Now the lawyer asks again if the witness now remembers after looking at the writing.
- If the witness responds that she now recalls independently of the writing, her recollection has been refreshed and she may testify to that independent recollection, ideally not using the writing, recording or object further. I say ideally because there are plenty of reported cases in which a police officer, or deputy, or dispatcher has been allowed to continue to use case reports and notes after having recollection refreshed. See. e.g., King v. State, 615 So.2d 1202 (Miss. 1993).
- If the witness still can not recall after looking at the writing, then the lawyer may have to resort to MRE 803(5), which we will look at in a later post.
MRE 612 requires that the opposing party be provided with a copy of the item if it is used for refreshing memory while testifying, and to cross examine the witness about it, and to have relevant portions admitted into evidence. If, on the other hand, the witness uses an item to refresh before testifying, then it is within the court’s discretion whether counsel opposite should have a copy if the court determines that “… it is necessary in the interests of justice …” Any part of the item or writing that the court orders not to be admitted into evidence is required to be preserved in the record for appeal. The court may make any order it deems necessary to effect the intention of the rule.
The best evidence rule does not apply to writings used to refresh recollection. Hunt v. State, 687 So.2d 1154 (Miss. 1997).
The comments to the rule say that it was intended to end pre-rules confusion between simply refreshing the witness’s independent recollection (MRE 612) and laying the foundation for admission of a recorded recollection as an exception to the hearsay rule (MRE 803(5)). In my experience, that confusion sadly persists despite this rule.
In a nutshell, here is the distinction: (a) Rule 612 instructs us on how to refresh a witness’s present recollection. That is, the witness at the time of trial can testify as to his recollection of what happened, but his recollection needs to be refreshed before he can testify. After looking at the item, the witness’s recollection is restored, enabling him to testify from memory. (b) Rule 803(5) tells us what to do where a witness once had personal knowledge, but now has insufficient recollection to be able to testify, and the witness made an accurate record of his observations when the event was fresh on his mind.
An important caveat: Before you stick something under the witness’s nose to refresh his recollection, be aware of what it is that you are handing to your opponent, because that is what you are doing when you offer it to your client. In a case I tried years ago, a key witness was hazy about details of an important event that would affect the outcome of the case. In an effort to jog her memory, her lawyer asked her whether there was anything that would help her recall the details. She said she could recall if she could look at a sheaf of notes she had left on counsel’s table. Without even glancing at them, the attorney handed them to her, whereupon I demanded to look over the papers. There, in the witness’s own handwriting, were dozens of statements that contradicted her own testimony to that point, flatly contradicted her deposition testimony, and aided us immensely in her impeachment. And it was handed to us by her own attorney.
Proof of the Valuation Date
February 26, 2014 § 1 Comment
I’ve whined here more times than I can count about how the record is almost always bereft of any testimony from either party in a divorce about what valuation date should be used by the court in assessing values. The date that the chancellor uses can take away or add thousands of dollars to your client’s slice of the marital pie, so it’s a subject that you should approach with some interest.
The valuation date (or demarcation date) is entirely within the discretion of the court, and if you do not put evidence in the record as to which date should be used and why, then you are leaving it strictly up to the chancellor to go with any reasonable date. One of several previous posts where I spelled this out is here.
If I were trying a case with valuations, I would always ask my client what valuation date should be used and why. And remember, that different assets can have different valuation dates. Why? Well, for one thing, it gives you something in the record to argue, as opposed to raising the argument in a vacuum on appeal with nothing in the record to support it. For another, it just might be all the chancellor needs to select the very date that your client designates. And, for yet another, if you don’t put that evidence under the judge’s nose, how in the world do you expect the judge to guess correctly what your client wants?
So how do you pick the best valuation date for your client? Look at how values are fluctuating, if they are, and pick the most advantageous date, then have your client explain to the court why and how that date will produce the most equitable result. If you want inspiration on how to do this, I suggest you study the various appeals where the court has upheld the chancellor’s arbitrary decision on valuation dating. How the chancellor picked a date is one indicator you can use. You can also draw inspiration from the after-the-fact arguments of counsel who left it up to the trial judge. The COA decision in McDevitt v. Smith, handed down November 26, 2013, is a recent example.
Which Post-Trial Motion You Choose Can Make all the Difference
February 25, 2014 § 3 Comments
James Loftin was notified that his contract for employment as school superintendent would not be renewed, and he filed a request with the chancery court for a hearing, as provided in MCA 37-9-101 through -113.
On April 16, 2012, Loftin filed a public records request with the school district.
The non-renewal hearing went forward on April 27, 2012, despite a pre-hearing motion that Loftin had filed asking that it be delayed so that his public records request could be addressed. On July 12, 2012, the judge ruled that Loftin had waived the public records request because he had allowed the hearing to go forward. The ruling on the non-renewal was not in his favor.
Loftin filed a motion for reconsideration [you can read another post at this link on whether there is such a creature in Mississippi procedure] on July 24, twelve days after the court’s ruling.
On October 24, 2012, more than 100 days after the final ruling on the merits, the court overruled the motion for reconsideration, and Loftin filed his notice of appeal on November 2, 2012.
In the COA case of Loftin v. Jefferson Davis County School District, handed down February 18, 2014, the court affirmed the chancellor’s denial of the motion to reconsider. Judge Fair, for the majority, explained:
¶4. “A timely-filed notice of appeal is a jurisdictional prerequisite to invoking [appellate] review, and we review jurisdictional matters de novo.” Calvert v. Griggs, 992 So. 2d 627, 631 (¶9) (Miss. 2008). “[T]he time to file a notice of appeal is a jurisdictional issue that cannot be waived by the parties.” Dawson v. Burt Steel Inc., 986 So. 2d 1051, 1052 (¶5) (Miss. Ct. App. 2008).
¶5. At issue is what effect Loftin’s motion for reconsideration had on the timeliness of his notice of appeal. Motions for reconsideration are filed every day in Mississippi, but the Mississippi Rules of Civil Procedure do not specifically provide for them. McBride v. McBride, 110 So. 3d 356, 359 (¶15) (Miss. Ct. App. 2013). This Court recently summarized how they should be treated:
The Mississippi Rules of Civil Procedure provide two avenues to move the trial court to reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to alter or amend under Rule 59 or (2) file for a relief from a final judgment under Rule 60(b). The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b) motion.
A motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion. Consequently, a notice of appeal following the denial of a Rule 59 motion to reconsider encompasses both the denial of reconsideration and the underlying judgment.
But a motion to reconsider filed more than ten days after the entry of the judgment falls under Rule 60(b). And a Rule 60(b) motion does not toll the thirty-day time period to file a notice of appeal. So a notice of appeal following the denial of a Rule 60(b) motion to reconsider limits this court’s review to whether reconsideration was properly denied under Rule 60(b). This court has no jurisdiction to consider the merits of the underlying judgment.
Woods v. Victory Mktg. LLC, 111 So. 3d 1234, 1236-37 (¶¶6-8) (Miss. Ct. App. 2013) (citations omitted). The last day for Loftin to file his motion for reconsideration under Rule 59 was Monday, July 23, 2012. See M.R.C.P. 6(a). Loftin’s motion, filed on July 24, must be taken under Rule 60(b).
¶6. Rule 60(b) provides six bases for relieving a party from a final judgment:
(1) fraud, misrepresentation, or other misconduct of an adverse party;
(2) accident or mistake;
(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.
Loftin’s motion for reconsideration makes none of those arguments. Instead, it simply contends that the petition should not have been dismissed under the facts and the controlling substantive law. Loftin obviously intended the motion to be considered under Rule 59(e), but because it was untimely, that ship has sailed. “An appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” Bruce v. Bruce, 587 So. 2d 898, 903-04 (Miss. 1991). Instead, “Rule 60(b) is for extraordinary circumstances, for matters collateral to the merits, and affords a much narrower range of relief than Rule 59(e).” Id. at 903. “Rule 60(b) motions should not be used to relitigate cases.” S. Healthcare Servs. Inc. v. Lloyd’s of London, 110 So. 3d 735, 742 (¶16) (Miss. 2013). Nor is a Rule 60(b) motion a substitute for a timely appeal. Id. at (¶14).
¶7. Loftin is not entitled to relief from judgment under Rule 60(b). We therefore affirm the trial court’s judgment denying Loftin’s motion for reconsideration.
Comments:
-
A R59 motion for a new trial or rehearing will stop the appeal deadline from running, but it must be filed within ten days of entry of the judgment.
- A R60 motion does not stop the running of the appeal deadline.
- Even if you style your motion as a R59 motion and ask for R59 relief, if you file it more than ten days after entry of the judgment, it will be treated as a R60 motion.
- If you ask for relief under R60, you should spell out exactly what provisions of R60 you are invoking.
- Remember that, as between R59 and R60(b), only a R59 motion will allow the appellate court to review the merits of the underlying judgment. An appeal from denial of a R60(b) motion limits the appellate court to a review of the denial of the R60(b) motion only.
Family Law CLE: Save the Date
February 24, 2014 § 2 Comments
I am not in the business of promoting products or services, but I do promote the better practice of law. If you do any family law at all, you should make it your business every year to attend Professor Deborah Bell’s Family Law CLE program. I make time for it every year without fail, even though Professor Bell donates her time each Fall to make a presentation to the chancery judges.
Here’s a copy of the notice for this year’s programs:
| The 18th Annual Family Law CLE
Professor Deborah Bell, Seminar Leader This year’s Family Law CLE will be presented on the following dates and locations: Jackson · Friday, July 18, 2014 Oxford · Friday, July 25, 2014 Gulf Coast · Friday, August 1, 2014 _______________ Save the dates for this annual 6 hour CLE providing comprehensive overviews of the last year’s family law developments. Includes one hour of ethics credit. Register online at Family Law CLE Make check payable to: Carroll Chiles Moore, Conference Coordinator phone: 662-513-0159
REGISTER NOW, ONLINE! http://msfamilylaw.com/
|
While you’re at it, get yourself and use a copy of Professor Bell’s Bell on Mississippi Family Law. It’s the authoritative reference work for Mississippi family lawyers.
Rocky Springs
February 22, 2014 § 3 Comments
The community of Rocky Springs, in Claiborne County, grew up at the site of natural springs near the Natchez Trace where settlers had first set down roots in 1796. The springs attracted thirsty travelers on the heavily-used Trace.
In 1837, a Methodist church was built on the bluff overlooking the village.
By 1860, the population of Rocky Springs had grown. Within two and one-half miles of the village center were more than 2,600 people, which number included around 2,000 slaves. Farming occupied most of the community outside the immediate environs of the town. Fifty-eight planters worked the land with slave labor, primarily in cotton, which was the area’s principal economic engine. Within the village there were physicians, merchants, trades, clergy, and even an academy.
General Grant’s invading army in 1863 marched north from its river crossing near Bruinsburg and passed through Rocky Springs on its roundabout march to invest Vicksburg.
The village survived the economic devastation of the Civil War, but traffic on the Natchez Trace had dwindled as the area developed and the wilderness receded. In 1878 the population was slashed by a yellow fever epidemic.
By the 1900’s poor farming practices and severe erosion had crippled the cotton industry, and In the 1920’s the boll weevil infestation essentially ended it in the area.
In the 1930’s the springs dwindled and then dried up completely. The last store closed.
The only surviving structure of the once-thriving community is the Methodist church. It continued active until 2010, when its membership became too small to sustain it, but its doors are still open to visitors. On the chilly day that we dropped in we added our names to the register alongside others from New York, Germany, New Zealand, the UK, and many other places.
Behind the church is its cemetery. Tombstones date from the early-to-mid 1800’s to the present.
The National Park Service displays a painting purporting to depict what Rocky Springs looked like in its heyday.
The painting may be fanciful, or it may be an accurate depiction. I can’t say for certain. It does show the land cleared and cultivated, as we know it was, and the cluster of village buildings below the bluff commanded by the Methodist church. Still, it’s hard to square that idyllic portrait with the overgrown, heavily wooded, and deserted contemporary scene.
Today, Rocky Springs is nothing more than an historical stop on the Natchez Trace with an interpretive trail through its site. There is a nearby campground.
