The National Civil Rights Museum
January 24, 2014 § Leave a comment
We visited the National Civil Rights Museum the weekend of Dr. Martin Luther King, Jr.’s, birthday. The museum is in downtown Memphis, where Dr. King was assassinated on April 4, 1968.
The museum incorporates the Lorraine Motel, where Dr. King was lodging, and the boarding house across the street, from which the killer fired the fatal shot.
Dr. King had come to Memphis in support of a strike by Memphis garbage workers for better pay. He and his cohort, Rev. Ralph David Abernathy, checked in at the Lorraine in adjoining rooms. The motel was their customary lodging whenever they were in the city. They stayed at the Lorraine so frequently that motel staff and the guests jokingly referred to their rooms as the “King-Abernathy Suite.” Dr. King was staying in Room 306. At around 6:00, p.m., he was standing on the second-floor balcony, chatting about plans for supper with some friends in the parking lot below, when the rifle shot took his life.
People were not as security conscious in 1968 as they are now. Police were posted nearby, but they were there primarily to keep away anyone who approached on foot or by automobile. No one gave any thought to securing the shabby boarding house across the street. The killer, James Earl Ray, shot Dr. King using a .30-06 rifle with scope. He shot from the small, upper-right window in the building with the white door, about 100 yards from his target.
Ray had to stand in a bathtub in his boarding house bathroom, resting his rifle on a widow sill, to fire at his target. You can see the motel through the window. For a rifleman with a scope, the shot was not challenging.
Much of the museum is closed now for refurbishing, so most of the exhibits one sees now focus on Dr. King’s assassination. When the museum is fully open, however, it offers exhibits interpreting the entire scope of the civil rights movement. Visitors during the renovation are able to access the balcony, which includes a look into Dr. King’s room as it was the evening of the assassination.
Exhibits … The first picture below depicts the exhibit showing the rifle used by the murderer, his jacket, a box of ammunition, and some other items discovered in the investigation that linked him to the crime.
The story of Ray’s stalking and murder of Dr. King, and his subsequent international pursuit and arrest by the FBI, are captured in riveting detail in Hampton Sides’ book, Hellhound on his Trail, which I posted about here.
Deference to the Chancellor’s Findings of Fact
January 23, 2014 § 1 Comment
Language along the following lines opens the great majority of appeals from chancery court rulings:
“We employ a limited standard of review on appeals from chancery court. Miller v. Pannell, 815 So. 2d 1117, 1119 (¶9) (Miss. 2002). We will not disturb the factual findings of a chancellor so long as the chancellor’s findings were supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Biglane v. Under The Hill Corp., 949 So. 2d 9, 13-14 (¶17) (Miss. 2007). ‘We use a de novo standard when analyzing questions of law.’ Id.”
Indeed, that is the very language of the COA’s decision in the case of Legacy Hall of Fame, Inc., et al. v. Transport Trailer Service, et al., decided January 21, 2014. In that case, Judge Fair’s opinion for the majority affirmed the chancellor’s ruling denying Legacy’s claim that its officer was non compos mentis when he executed a contract for the corporation. Judge Fair stated in response to the appellant’s argument that the chancellor had failed to give proper weight to the testimony of its witness, Dr. White, on the issue of competence:
¶21. This Court’s “standard of review is indeed deferential, as we recognize that a chancellor, being the only one to hear the testimony of witnesses and observe their demeanor, is in the best position to judge their credibility.” In re Estate of Carter, 912 So. 2d 138, 143 (¶18) (Miss. 2005) (citing Culbreath v. Johnson, 427 So. 2d 705, 708 (Miss. 1983)).
¶22. The chancellor made it clear in his bench opinion that he was considering Dr. White’s testimony. We find that the chancellor was not clearly erroneous in finding that Legacy Hall did not overcome the presumption of competency. Therefore, we affirm the chancellor’s decision.
That same day the COA handed down its decision in the case of Borden v. Borden, affirming a chancellor’s award of custody to Mr. Borden based on an Albright analysis. The appellant argued that the chancellor was in error in how he analyzed the Albright factors, and in how he reached his conclusions based on the proof. Judge Roberts, for the majority, explained:
¶16. The record clearly shows that the chancellor carefully weighed each Albright factor, and he acted within his discretion when he held that six of those factors favored Shannon, as opposed to only one that favored Mary Jane. Although reasonable minds could weigh the evidence and reach different conclusions, the chancellor did not abuse his discretion when he applied the Albright factors. The dissent would reverse the chancellor’s judgment and award Mary Jane custody of the children, thus rendering a judgment in Mary Jane’s favor. With utmost respect for the dissent, our standard of review does not include reweighing the evidence or substituting our opinion for the chancellor’s. It is the chancellor’s responsibility to “hear the evidence, assess the credibility of the witnesses, and determine ultimately what weight and worth to afford any particular aspect of the proof.” Tritle v. Tritle, 956 So. 2d 369, 373 (¶8) (Miss. Ct. App. 2007). “Even if we would have given greater weight to different testimony, so long as substantial credible evidence supports the chancellor’s decision, we will not substitute our opinion for the chancellor’s.” Id. The chancellor could have certainly found that Mary Jane was evasive during her testimony as an adverse witness. We find no merit to Mary Jane’s claim that the chancellor awarded Shannon primary custody of the children as a means to punish her for her inappropriate conduct with other men or her false allegations of child abuse. Thus, we affirm the chancellor’s award of primary custody to Shannon.
That is the way it is supposed to work: as long as the chancellor’s findings are based on substantial credible evidence in the record, they should be undisturbed on appeal if they are based on a correct application of the law.
The MSSC requires the COA to review the chancellor’s findings and to make a determination whether the chancellors’decision was supported by substantial credible evidence. That necessitates an examination of the record and scrutiny of the trial judge’s findings. But it does not mean that the appellate court becomes a second-line chancellor making its own conclusions on the facts. That is the chancellor’s job. You might keep that in mind the next time you’re confronted with the decision whether to take an appeal from a chancellor’s findings of fact.
A Complaint by any other Name …
January 22, 2014 § Leave a comment
This from the case of Cornelius v. Overstreet, 757 So.2d 332, 335 (Miss. App. 2000):
¶ 9. In addition, this Court would like to comment to the bar and the trial bench about cases similar in nature which fall within the purview of Rule 81(d) of the Mississippi Rules of Civil Procedure. The initiation of such actions should be by filing “complaints” or “petitions,” and “counterclaims” or “cross-claims” (whichever might be appropriate), not “motions” and “cross-petitions” as was done in this case. See M.R.C.P. 13, 81(d)(1-3), 81(f), and comments to 81(d)(3) and 81(f).
Here’s a link to a previous post that goes into greater detail.
Jane’s Law Blog
January 21, 2014 § 2 Comments
The observant among you will note that, a couple of weeks ago, I added a link over there on the right to a new blog, Jane’s Law Blog.
Jane Tucker of Jackson has undertaken this new blog to give us an in-depth look at cases before the COA and MSSC. She not only deals with opinions rendered, but gives a heads-up about issues percolating their way through the courts, oral arguments, and orders of the court.
Nowhere else that I know is such helpful background info available. Just this past weekend, for example, I learned from Jane that there is a circuit court appeal pending in which the MSSC is being called upon to determine the rules for authentication of Facebook posts, an issue about which there has been widespread uncertainty. I also learned, to my chagrin and sorrow, about the proposed suspension of a fellow chancellor.
I recommend that you add this blog to your regular reading. You will find material here that you won’t find anywhere else, and it could be of significant benefit to you in your practice.
Law Like Love
January 17, 2014 § Leave a comment
by W.H. Auden
Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
To-morrow, yesterday, to-day.
Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.
Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.
Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.
Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good morning and Good night.
Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more,
Law has gone away.
And always the loud angry crowd,
Very angry and very loud,
Law is We,
And always the soft idiot softly Me.
If we, dear, know we know no more
Than they about the Law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the Law is
And that all know this
If therefore thinking it absurd
To identify Law with some other word,
Unlike so many men
I cannot say Law is again,
No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.
Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyway:
Like love I say.
Like love we don’t know where or why,
Like love we can’t compel or fly,
Like love we often weep,
Like love we seldom keep.
The Not-so-Illusory Agreement
January 16, 2014 § Leave a comment
It has long been the law in Mississippi that parties effect extra-judicial modifications at their peril, and that chancery courts are neither designed or equipped to enforce such agreements.
Only last September we read here about Donald Brewer and Penny Holliday, who had agreed to modify their divorce judgment vis a vis custody and support. They had lawyers incorporate their agreement into an agreed judgment, and they proceeded to conform to the agreement in nearly every respect for several years. Only problem is, no one ever saw to it that the agreed judgment was entered. Both Donald and Penny believed that it had been entered. When the parties had a falling out and wound up back in court, the chancellor refused to enforce the agreement, notwithstanding the course of compliance, and found Donald in contempt. The COA affirmed, as you can read in the previous post.
Donald in due course persuaded the MSSC to take another look, and in Brewer v. Holliday, decided by the MSSC on January 9, 2013, the high court reversed. Justice Dickinson’s opinion states, in part:
¶14. This Court has recognized that, at times, equity may “suggest ex post facto approval of extra-judicial adjustments in the manner and form in which support payments have been made.” [citation omitted] For instance, in Alexander v. Alexander, this Court held that equity required crediting a father for payments of child support made directly to the child – once the child moved in with him – instead of to the mother. [citation omitted] And in Varner v. Varner, we explained that “the father may receive credit for having paid child support where, in fact, he paid the support directly to or for the benefit of the child, where to hold otherwise would unjustly enrich the mother.” [citation omitted] Noncustodial parents pay child support to custodial parents for the benefit of the child, not the parent, [citation omitted] and that support belongs to the child, not the custodial parent. [citation omitted]
[Note: read the opinion at the link for the case citations. Copying and pasting numerous footnotes is too cumbersome for this blog]
The court went on to remand the case for the chancellor to consider the fact that the child resided with Donald, à la Varner, finding that the arrangement should have been taken into account by the judge at the original hearing.
There is no airtight rule against enforcement of extra-judicial modifications. Each case must be considered on its own merits, and the equities must be weighed. Here, the high court considered that it would be best for Donald’s equities to be taken into account, rather than closing the door on enforcement of the agreement. No doubt the parties’ ignorance of the fact that the judgment had never been entered, coupled with their compliance with it for a time, had persuasive weight in this particular case.
The Fog of Contempt
January 15, 2014 § Leave a comment
In the press of courtroom battle, it sometimes happens that things get obscured, as in war, by the fog of all that is transpiring, so that it becomes difficult to appreciate things in their proper capacity.
I touched on this concept recently in a post dealing with contempt in its various, somwhat fluid incarnations.
On January 7, 2013, a panel of the COA had occasion to address the fog of contempt in the case of Zebert v. Guardianship of Baker.
Mr. Zebert, a lawyer, was appointed in 2000 to serve as guardian of the person and estate of a minor. Accountings were filed in each year from 2000 through 2007, but no accounting was filed in 2008 for the period from October, 2007, through September 30, 2008. The court issued a show-cause order and subsequently granted several continuances until Zebert himself asked to be relieved as guardian a year after the accounting had been due. The substitution, however, did not relieve Zebert of the duty to account for his period of responsibility.
Zebert filed an incomplete accounting, and the court held three more show-cause hearings, culminating in an adjudication of contempt and order for Zebert’s incarceration that the court suspended to allow the attorney time to get the accountings together. Zebert then filed a partial accounting disclosing at long last that he had made unapproved disbursements from the guardianship account, including unsecured loans to third parties, totalling more than $130,000, and reducing the assets of the estate to around $6,500.
The chancellor found Zebert in contempt and ordered him to be jailed until he purges himself of contempt. The adjudication was one of civil contempt.
Zebert appealed, complaining that his incarceration was criminal in nature, not civil, and that it was error for the court not to charge him formally, issue a summons, and have the matter heard by another judge.
The COA’s decision is of interest for the contrasting views between the majority, which held that Zebert’s contempt was civil because he was being required to provide a proper accounting, and which affirmed the chancellor, and the dissent by Judge Griffis, which agreed with Zebert that he is being punished criminally, and not being subjected to the coercive power of the court. I commend it to your reading because it illustrates how the same set of contempt facts can be seen by different people in a different light. The fog of contempt, if you will.
Another reason to read this decision is that it once again underscores why chancellors are getting increasingly intolerant of delinquent accountings, excuses, clueless lawyers, and malfunctioning and misfunctioning fiduciaries.
It will be interesting to see what becomes of this case on a request for rehearing or cert.
Target-ed
January 14, 2014 § Leave a comment
Last week we learned in the national media that the number of customer-victims of hacked credit accounts at the Target stores was not 40 million as originally reported, but was instead around 110 million. And, to top it off, Neiman Marcus reported that they had been hacked, too. Sunday night NBC news reported that several other retailers, as yet unidentified, had also had their customers’ data stolen.
This is a timely topic for me. In early December I received a call from one of my credit card companies asking whether I was making, or attempting to make, purchases using my credit card somewhere in Florida. Since I was sitting in my den in Meridian, I answered in the negative. They cancelled my card and issued a new one, which I received in a couple of days. And that was not all.
After I made a purchase a week before Christmas using my debit card at Books-a-Million in Meridian, charges at that store in Meridian and Montgomery, Alabama, that were not made by me began appearing on my bank account. The bank had me sign affidavits, cancelled the transactions, refunded my money, and cancelled my old card. I received the replacement in a week.
Several years ago, someone tried to purchase a flat-screen tv using one of my credit card numbers at a Wal-Mart in Wisconsin. Card cancelled for fraud, and a new card issued.
I say all this to point out that credit and debit card fraud is not something that happens to all of those other mega-numbers of people reported in the news. Those kinds of things happen to everyday folk like you and I. Oh, and by the way, I have not set foot in a Target store in at least the past 5 years.
There is a plethora of information on the internet about how to protect your credit information and take corrective action, so I am not going to rehash all that here. I can only add that eternal vigilance is the price of plastic noawdays. I check my bank account online daily. I scan every credit card statement carefully.
Lawyers can be particularly vulnerable. Aside from all of the representation and commingling scams, credit and debit cards present a significant opportunity for fraud. It’s easy for lawyers to get busy and not check behind staff to see where the money — and credit — is going. It can cost you.
Family Values in a Divorce
January 13, 2014 § Leave a comment
The case of Gardner v. Gardner, decided by the COA back on September 24, 2013, is not a landmark case, by any means, but it highlights the point that I have made here often that the values of assets that you put into the record just might be the ones your client gets saddles with, for better or worse. Here’s what Judge Lee’s opinion said about it:
¶19. “[F]indings on valuation do not require expert testimony and may be accomplished by adopting the values cited in the parties’ [Uniform Chancery Court Rule] 8.05 financial disclosures, in the testimony, or in other evidence.” Horn v. Horn, 909 So. 2d 1151, 1165 (¶49) (Miss. Ct. App. 2005) (citations omitted). The chancellor did the best he could with the evidence presented to him, and we decline to find error in his conclusions.
A couple of thoughts:
- It often happens that both parties present the court with outlandish values. He values everything he wants her to have at phenomenally high values, and values the items he is to get at pitifully small values. She does likewise. That leaves the court with the alternatives: (a) to find that all the values have no credibility, and to order valuation by an expert; or (b) to average the values, or pick and choose among them to arrive at an adjudication of values; or (c) to order everything to be sold and the proceeds divided according to the formula for equitable division.
- If your client contests some of the other party’s values, be sure to have him or her testify why. For instance, “I disagree that the dresser in the bedroom is worth $3,000 because we bought it at a yard sale for only $50 nearly 35 years ago, and it has a drawer missing, the mirror is broken, and my husband spilled a bottle of brandy on it, causing the varnish to be scarred and bubbly on the top.”
- In Gardner, the wife was unhappy with the low value that the chancellor placed on husband’s tools and implements. Those kinds of items may actually merit valuation by someone with some pertinent experience, such as a credible mechanic, or the like. I once represented a man in the car painting business who had rescued some clogged painting nozzles from work that were discarded by his boss because it was cheaper to throw them away than to clean them. He took them home, painstakingly cleaned them, and used them for his hobby and side work. His wife valued the nozzles at $300-600 apiece. My client valued them at $25 each. The chancellor elected the wife’s value, and we had nothing in the record other than the parties’ testimony on which to base a contrary result. Ouch. Mrs. Gardner had a similarly unhappy outcome for the same reason.
- Consider using discovery, and RFA’s in particular, to establish values.
As I have said here before, when you save or make your clients money, they love you. When you cost them money, they hate you. A little attention to values can go a long way on the positive side.
