Maxims: If You Seek Equity, You Must Do Equity
October 7, 2013 § 1 Comment
“He who seeks equity must do equity.”
Judge Griffith characterizes this maxim as “one of the oldest of equity principles.” He says (paragraphing added):
… the court in extending its aid will require as a condition thereof that the complaining party shall accord and render to the adversary party all the equitable rights to which the latter is entitled in respect directly to the subject matter of that suit, and this is true even as to many of those things which the defendant could not compel by an independent suit.
It is through the peration of this maxim that tender or the equitable equivalent thereof is required; the restoring of benefits received and the placing of the opposite party in statu quo, and the like; and that without the necessity of cross demand [note: counterclaim in modern parlance], the decree [read judgment] may often be so drawn and rendered that each party may be given, in respect to the identical transaction, what in equity and in good conscience he ought to have and in the approximate manner in which he ought to have it — settling the whole matter by making any decree at all in complainant’s [read plaintiff’s] behalf conditional upon the allowance of the cognate rights of the defendant: provided, these latter rights are so intimately connected with the transaction as to be equitably inseparable therefrom, and provided that no express principle of the law stands in the way. Griffith, §43, pp. 45-46.
When a litigant invokes jurisdiction of the chancery court, that litigant is thereby bound by all equitable principles. Hooks v. Burns, 168 Miss. 723, 152 So. 469 (1934). It applies only to one seeking affirmative relief. Burton v. Mutual Life Ins. Co., 171 Miss. 596, 625, 158 So. 474 (1935). It protects the substantive rights of a defendant, and may not be extended to impose moral duties. Gaston v. King, 63 Miss. 326, 332 (1885).
I used to tell clients that we wanted to be the ones “wearing the white hats” in court. In part that was a nod to the wisdom behind this maxim. And, it was a recognition of the fact that the judge is always ready to aid the one in the right, and to set right the one in the wrong.
“Quote Unquote”
October 4, 2013 § Leave a comment
“I believe that animals have been talking to human beings ever since we were all made and put into this world.” — Barbara Woodhouse
“If cats could talk, they wouldn’t.” — Nan Porter
“In order to maintain a well-balanced perspective, the person who has a dog to worship him should also have a cat to ignore him.” — Peterborough Examiner
Declaratory Judgment vs. Injunction
October 3, 2013 § Leave a comment
Samuel Bray, an assistant professor at UCLA School of Law, sent me a link to an article, The Myth of the Mild Declaratory Judgment, that he has authored on the distinction and relationship between declaratory judgment and injunction. It’s a topic you might find helpful (a) when making strategic decisions about litigation, and (b) if you have to prepare a trial memo or appellate brief on the subject.
Here’s an abstract of the article:
Maxims: Clean Hands
October 2, 2013 § Leave a comment
“He who comes into equity must come with clean hands.”
This maxim is the source of the so-called “Clean Hands” doctrine that every chancery practitioner has encountered at one time or another.
Judge Griffith’s description is apt today. Here’s what the judge said (paragraphs added):
” … [N]o person as a complaining party can have the aid of a court of equity when his conduct with respect to the transaction in question has been characterized by wilful inequity, or illegality.
“It does not exclude a party because in some other matter his conduct may have been reprehensible; it refers only to the subject matter of the particular suit in hand.
“The wrongful conduct which will bar the complainant need not be so gross as to be a crime punishable as such, nor so positive as within itself to form the basis of a legal action. It may be described as such wilful misconduct, inequity or fraud with respect to the immediate transaction as would be condemned and pronounced wrongful by homest and fair-minded men.” Griffith § 42, p. 44.
As Judge Griffith goes on to say, the doctrine of clean hands is purely defensive in nature, and can not be used by a party to acquire rights to which he or she would otherwise not be entitled. It is not required that it be pled, and the court may apply it, even on its own motion, at any time that it becomes evident in the course of litigation that it has come into play.
The doctrine acts as a form of estoppel. A former wife was estopped from obtaining a judgemnt of contempt against her ex-husband when it was established that she had failed to comply with the judgment herself. Brennan v. Brennan, 605 So.2d 749, 752 (Miss. 1992). See also, Banks v. Banks, 648 So.2d 1116, 1126 (Miss. 1994).
Laches
October 1, 2013 § Leave a comment
We discussed yesterday the maxim that “Equity aids the vigilant and not those who slumber on their rights.” Equity will not act where one party gains an advantage by delaying taking action.
The maxim is embodied in the equity doctrine of laches. Although it resembles the effect of statutes of limitation, laches is not based on, limited to, or bound by any statute of limitations. Judge Griffith explained it this way (broken into paragraphs):
“It is a rule peculiar to and inherent in courts of equity; and it applies where it would be practically unjust to give a remedy, either because the applicant has by his conduct done that which might be fairly regarded as a waiver of his remedy, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were to be afterward asserted.
“A long or protracted delay in the prosecution of rights is presumed to have produced the situation last mentioned and equity looks with so little favor upon such prosecutions that it will not entertain them, although no express statute of limitations is available, — unless facts are shown which will rebut the preseumption of injustice arising out of the apparently undue delay, or which will excuse the same.” Griffith, § 33, pp. 35-36.
Laches is independent of any statute, and gives rise to a rebuttable presumption of unfairness. It is within the discretion of the chancellor. Griffith, § 33, p. 36, fn. 24a.
Maxims: Aiding the Vigilant
September 30, 2013 § Leave a comment
“Equity aids the vigilant and not those who slumber on their rights.”
Judge Griffith puts this about as well as it can be said (I’ve broken it down into separate paragraphs):
“Those diligent find equity always ready to extend just aid, but the slothful are not favored.
“There is no principle of equity sounder or more conservative of peace and of fair play than this, which requires a party who has a claim to prefer or a right to assert to do so with a conscientious promptness while the witnesses to the transaction are yet available and before the facts have faded from their memories.
“It is a fact of universal experience that men will generally use diligence to get what rightfully belongs to them, and will unreasonably delay only as to false or ineuqitable claims, — thus in the hope that fortuitous circumstances may improve their otherwise doubtful chances.
“If therefore a party delay the bringing of a suit, or delay the taking of some particular step therein, to such an unreasonable time that to allow him so late to proceed would work an injustice and injury upon the opposite party, it will require a much stronger case to move the court to action than if the matter had been seasonably presented; and if on account of the delay a serious injustice would result to the opposite party the court may decline to proceed at all.
“The maxim does not apply however to those under disability such as infants, nor can it be invoked by one who has lulled his adversary into repose by deceit, false promises, concealment and the like.” Griffith, § 41, p. 43.
Equity, then, treats rights that are not asserted within a reasonable time as having been abandoned, or as surrendered to the other party. Magee v. Catching, 4 George 672, 1857 WL 2672, (Miss. Err. App. 1857). [Note: Magee is still good law, despite its antiquity, and despite the fact that it involved a mortgage secured by slaves.]
Equity is all about fairness. Equity looks askance at a complaining party who delays taking action to gain an advantage because of the inherent unfairness of the situation.
This maxim is the basis for the doctrine of laches, which we will address tomorrow.
Exploring the Second District Web Site
September 26, 2013 § 1 Comment
Chancellor David Clark’s Second Chancery Court District web site is a must-visit resource for practitioners who will find themselves before the court in Jasper, Newton and Scott Counties. You will find calendars, contact information, procedural guidelines, and other info that will ease your transition into that district.
Even if you’re not headed to court in East Mississippi, however, this site is a resource that you should not overlook. Some other info you’ll find there:
- The What’s New tab highlights case developments and rules changes that any chancery lawyer will find helpful in any district. As with this site, you can read Judge Clark’s take on it and draw your own conclusions, but when you read his interpretation, you get a glimpse into the chancellor’s thought process on the subject.
- There are some useful forms in several formats that can be completed online and printed out. There are estate information forms and worksheets that you should be using, whether or not they are required in your district. There is an 8.05 form, and a guardianship or conservatorship information sheet. There is even a case filing cover sheet. All can be filled in online and printed out, which is a huge bonus.
- The Memos to Attorneys tab will take you to several memos that, on the surface, instruct attorneys on how to address matters such as removal of disability of minority, the proper designation of pleadings, and de-sensitizing financial information in court filings. I say “on the surface” because they might just prompt you to make some positive changes in the way you handle some of your business in other districts.
Judge Clark has put some work into this site, and you would do well to take advantage of it.
Reprise: The Proper Response to a Rule 41(d) Notice
September 25, 2013 § Leave a comment
Reprise replays posts from the past that you may find useful today.
WHEN RULE 41(D) COMES KNOCKING AT YOUR DOOR
September 8, 2010 § 6 Comments
Rule 41(d), MRCP, is the familiar rule by which the Chancery Clerk is authorized to send out a notice to all counsel and self-represented parties in cases ” … wherein there has been no action of record during the preceding twelve months …” that the case will be dismissed for want of prosecution. The rule requires the clerk to dismiss the action unless within thirty days of the notice, ” … action of record is taken or an application in writing is made to the court and good cause is shown why it should be continued as a pending case.”
You have received such a notice, and, galvanized into action, you toss it on your paralegal’s desk and say, “Here, take care of this,” as you saunter out the door trying not to be late for your tee time. The paralegal scours the files and finds that your usual response is to file something called “Notice to Keep Case on the Active Docket,” and she tosses a copy of it on the secretary’s desk and says, “Here, do me one of these,” and returns to her office to continue whittling away at a four-foot-tall mound of discovery. In due course, the secretary produces said pleading, you sign it, the paralegal files it, and everything is fine. Until the next week, when you find your case was dismissed despite your efforts. What went wrong?
In the case of Illinois Central Railroad Co. v. Moore, 994 So.2d 723, 728 (Miss. 2008), the Mississippi Supreme Court held that a Circuit Judge should have dismissed the plaintiff’s suit after he had received Rule 41(d) notice, and his attorney filed nothing more than letters with the court requesting that it not be dismissed. The court reasoned that Rule 41(d) requires that some procedural action that would have the effect of moving the case forward be filed, or that a proper motion under the rules be filed and noticed, the motion showing good cause why the action should not be dismiised and asking the court to rule affirmatively that it should not be dismissed.
There was evidence of severe dilatoriness on the part of plaintiff’s counsel in the ICC case. The appellate decision, however, did not turn on his want of action, but only found it to be an aggravating factor. The court’s holding turned on counsel’s non-compliance with the rules, and the result was dismissal of the lawsuit. Although dismissal under 41(d) is without prejudice, the dismissal in ICC was fatal due to the statute of limitations.
The Supreme Court decision noted that there has been a relaxed attitude about responses to 41(d) notices, but stated that it would not follow the same path. ICC now stands for the proposition that if you skirt by the rule and succeed in having your action kept on the active docket, you will likely fail if the other side appeals.
If you want to keep an action from being dismissed under Rule 41(d), simply follow the rule and either: (1) Take some action of record, such as serving discovery, or filing a legitimate motion to advance the case; or (2) File a motion with the court asking that it not be dismissed, stating good cause to support your position, and notice the motion for hearing before the thirty days expires. Anything short of either action could result in a favorable ruling by a more relaxed trial judge, but will leave you vulnerable on appeal.
Caveat: Remember that Uniform Chancery Court Rule 1.10 requires that discovery must be completed within 90 days of service of an answer, unless extended by the court. It is unlikely that this judge would have allowed either party an extension that would cause a case to be pending as long as a year. It would be difficult to convince a judge that propounding discovery after the discovery deadline has expired would be an action of record that would have the effect of moving the case forward.
Comment: The consequences of Rule 41(d) to a cause of action are usually not as dire in Chancery Court as they are in Circuit. Statutes of limitation are not as often a concern in Chancery. For clients on an unequal financial footing, however, a 41(d) dismissal can cause expenses and fees to increase dramatically, and may spell the end of meritorious litigation. It may also require you to represent a client through an appeal that you were not paid to handle, just to avoid some other action by your client.
Maxims: Follows the Law
September 24, 2013 § Leave a comment
“Equity follows the law” is one of the most misunderstood and misapplied maxims.
I have heard this maxim incorrectly invoked for the proposition that equity may not act unless there is a specific law, or that equity is inferior to the law.
I stated in a prior post on the maxims that, although equity will not suffer a wrong without a remedy, that concept is not unrestricted:
Over centuries the idea of “wrong” has been refined to include matters that are actionable, and to exclude those that the law deems not actionable. Judge Griffith explained it this way: ” … the maxim at this day is subordinate to positive institutions, and cannot be applied either to subvert established rules of law or to give a court of equity a jurisdiction beyond established principles.”
As I also said in that earlier post, “When the law bestows a right, it also extends a remedy that can be granted in equity. Conversely, a court of equity will not supply a cause of action where none exists in the law.” If a cause of action is recognized in either the common law or by statute, equity will give a remedy and forum to enforce it.
Here’s what Judge Griffith said on the subject:
“Whatever may have been the course of action in the formative period of the law, courts of equity no longer assume to annul or directly disregard the positive provisions of the established law: courts of equity are now as much bound by express rules of law concerning property and its interests as are courts of law, and particularly this is true of constitutional and valid statutory requirements and provisions. Wherever the rights or duties of the parties in a given state of facts are definitely defined and established by law, statutory or common, equity must enforce those rights and enforce those duties; and it is only when some countervailing, dominant, and equally well established equitable principle intervenes that a court of equity can assail or abrogate the legal right or duty. Therefore, in adjudicating questions of legal right, title or interest equity follows the legal rules, and even in adjudicating equitable titles, interests and estates, equity will follow the law where any clear analogy exists …” Griffith, § 40, p. 42.
In any case where the law does not preclude a remedy, equity will follow the law as far as the law goes, and if the law stops short in securing the rights of the parties. equity will continue the remedy until complete justice is done. Senter v. Propst, 190 Miss. 190, 207, 197 So. 100 (1940); Griffith, § 40, p. 42, fn 33a.
The maxim has even been interpreted so that a transaction that is invalid at law may be cognizable in equity. In Coffey v. Land, 176 Miss. 114, 120, 167 So. 49, 50 (1936), the Mississippi Supreme Court, with Justice Griffith himself writing, addressed the principle in a case involving mortgages on future crops, the statute providing for which had been repealed:
“Whenever it is declared under any long line of judicial precedents that a transaction is invalid at common law and yet is valid and enforcible in equity, it will be found that the distinction is preserved out of consideration of the fact that if such a transaction were bound up in the inflexible rules of the common law, injustice and hardship and general insecurity might result, whereas, if left to equity with its broader and more flexible powers and processes, a more perfect justice may be attained and the general security better served. We shall later herein seek by illustration to show that this is precisely the case as to annual crops to be produced in subsequent years. And as to any advancements made under our decisions, on the precise subject now under discussion beyond the strict bounds of the ancient common law, we would call attention to the fact that the common law is not an institution of exact and unchangeable rules, but is a system which progresses so as to accord with the general customs, usages, habits, and necessities of the people of the state, so far as agreeable to justice and reason; and this is at the same time to say that no court may, under the notion of making progress under the common law, pronounce any rule as being an allowable advancement upon the ancient common law rule, when the effect of it would be mischievous in its operation, contrary to the substantial interests of our people, and which in its tendencies would be subversive of their freedom.”
I am willing to concede that a decision like Coffey is a rare result, but it demonstrates the scope and power of equity vis a vis the law. It presented one of those infrequent occasions where ” … some countervailing, dominant, and equally well established equitable principle …” intervened and trumped the common law.
The spirit of equity is to ensure that justice is done.
The Better Chancery Practice Blog 