NOTICE FOR A DAY CERTAIN
May 2, 2013 § Leave a comment
Although the COA decision in In the Matter of Transfer of Structured Settlement Payment Rights by Benny Ray Saucier, handed down March 26, 2013, nominally dealt with the notice provisions of the Mississippi Structured Settlement Protection Act (MSSPA), MCA 11-57-1 through 15, it punctuates an important point about notice and process that applies in other cases as well.
The statutes in this case specify certain notices that must be given to “all interested parties”:
- Section 11-57-11(2) states that, “Not less than twenty (20) days prior to the scheduled hearing on any application for approval of a transfer of structured settlement payment rights under Section 11-57-7, the transferee shall file with the court . . . and serve on all interested parties a notice of the proposed transfer and the application for its authorization … “
- And subsection (f) states that, “Notification of the time and place of the hearing and notification of the manner in which and the time by which written responses to the application must be filed which shall be not less than fifteen (15) days after service of the transferee’s notice in order to be considered by the court or responsible administrative authority.”
The statute, however, does not spell out what form of process or notice should accomplish what the statute mandates.
Here’s what the COA said in the majority opinion by Judge Griffis:
¶68. The MSSPA does not specify the appropriate notice that is required section 11-57-11(2). Because the MSSPA requires court approval, “[a] civil action is commenced by filing a complaint with the court.” M.R.C.P. 3(a). To obtain personal jurisdiction over an interested party, service of process is required consistent with either Rule 4 or Rule 81 of the Mississippi Rules of Civil Procedure. Although the MSSPA is not included among the actions subject to Rule 81(a), reading section 11-5-11(2), we interpret notice to require a return for a date certain similar to the procedure authorized in Rule 81(d)(5). At a minimum, once the original notice is provided to an interested party, notice of subsequent proceedings must comply with Mississippi Rule of Civil Procedure 5.
So, in these cases where a statute provides notice for a given period, and the matter is not among those enumerated in MRCP 81(d)(1) and (2), your safest course is to issue process to a day certain under MRCP 81(d)(5). In my experience this is exactly what practitioners and judges have been doing since the earliest days of the MRCP, but it is nice to see the appellate court’s stamp of approval on the practice, since it makes complete sense.
KEY CHANCERY CASES JANUARY 2012 – MARCH 2013
May 1, 2013 § Leave a comment
Many of these have been addressed in prior posts. This puts them all together in one place.
Lee v. Lee, 78 So.3d 326 (Miss. 2012)
Even in uncontested cases, it is essential that your judgment address all of the applicable factors, such as Albright, Ferguson, Martin v. Coop, etc.
Lone Star Industries, et al. v. McGraw, MSSC February 2, 2012 and McKnight v. Jenkins, MSSC February 14, 2013
If you file an amended pleading outside the time allowed and do not get leave of the court to file an amended pleading, the amended pleading is a nullity and should be stricken by the court.
Bolivar v. Waltman, COA April 3, 2012
All parties who would be necessary parties in a child custody case are required to be joined in a suit for grandparent visitation. This requirement of MCA 93-16-5 is jurisdictional, and may be raised by the trial court on its own, or by the appellate court on its own.
Cates v. Swain, COA April 17, 2012
Equitable remedies are not available to unmarried parties who acquire assets titled in only one party’s name through the contributions of both. The MSSC has granted cert in this case.
McMullin v. McMullin, COA May 29, 2012
If the chancellor’s opinion resolves fewer than all of the issues in the case, you must have the judge certify under MRCP 54(b) that there is no just reason to delay an appeal, and stating the reasons why. Otherwise, if you appeal, your appeal will be dismissed.
Easley v. Easley, COA June 5, 2012
When the parties enter into a consent for divorce and one of the contested issues who will be granted custody, the court may award the parties joint custody if the court deems it in the child’s best interest, regardless whether joint custody was listed as an option.
LePori v. Welch, COA June 26, 2012
There is no cause of action for termination of parental rights unless it is in contemplation of an adoption.
Rogers v. Rogers, COA July 24, 2012 and Dogan v. Dogan, COA October 9, 2012
If you are going to claim that the other party has perpetrated a fraud on the court as in Trim v. Trim, you have to plead fraud specially and prove all of its elements by clear and convincing evidence.
Marter v. Marter, COA August 7, 2012
Three acts that do not convert separate property to marital property for equitable distribution purposes: labor for plantation and maintenance; joint titling; and payment of property taxes.
Collins v. Collins, COA August 21, 2012
8.05 financial statements are the “gold standard” of proof as to assets and their values in a divorce, and the chancellor may rely on them solely in the absence of other evidence.
Strickland v. Strickland, COA August 28, 2012
Once the record has been transmitted to the MSSC in an appeal, the trial court has no jurisdiction whatsoever to reconsider, set aside, enforce or modify the order appealed from.
Brown v. Tate, 95 So.3d 745 (Miss. App. 2012)
The importance of entering an order of continuance on the return day in Rule 81 cases.
Ballard Realty, et al. v. Ohazurike, et al., MSSC September 6, 2012
A circuit court case in which the MSSC said that it was error for the trial judge to allow an expert to testify when the party offering him had not responded to the expert witness interrogatory seeking the substance of his testimony.
O’Briant v. O’Briant, COA October 16, 2012
Yet another case in which the appellate court points out that the Albright factors are not a scorecard in which winner takes all, but are a matrix for the court to use to assess the best interest of the child.
Jones v. Jones, COA November 13, 2012
When the chancellor has denied a divorce, she is under no duty to adjudicate custody pled as one of the prayers for relief in the divorce.
Estate of Holmes, COA November 29, 2012
The two subscribing witnesses to a will must be prepared to testify: (1) that they knew they were witnessing a will; (2) that the testator requested that they witness a will; and (3) that they did satisfy themselves that the testator was of sound and disposing mind when she executed the will.
Ford Motor Co. v. Ferrell, et al., MSSC December 6, 2012
Where the settlement that the chancellor is to approve is between private parties, the court should honor a party’s request to seal the record.
Sullivan and Stubbs v. Maddox, COA January 22, 2013
Attorney and his client jointly assessed with $43,000 in attorney’s fees and costs as a sanction where the proof showed that the lawyer had not investigated the merits of the claim before suit was filed, did not dismiss the case when discovery showed it was meritless, and then knowingly made false accusations against the judge on the record.
Gillespie v. Gillespie, COA January 29, 2013
Proof of grounds for divorce requires corroborating evidence, which is not necessarily strong enough in itself to prove the ground, but does tend to support the proof of the ground and a finding that it is true more likely than not.
Hollis v. Baker, COA February 12, 2013
If you fashion a hybrid alimony arrangement in a property settlement agreement or agreed judgment, and the court later finds it ambiguous, the ambiguity shall be resolved in favor of it being construed as periodic alimony, with all of the attendant attributes of periodic alimony.
Fore v. Fore, COA February 19, 2013
Both parties charged each other with post-separation adultery, and the chancellor denied both of them a divorce. Affirmed.
Caplinger v. Julian, COA February 12, 2013
Every judgment for child support must bear interest, set at a stated rate to be determined by the court pursuant to MCA 75-17-7.
Hall v. Lewis, COA February 12, 2013
Unmarried couple who lived together entered into mutual contract to provide for each other in their respective wills. Contract held not to be abrogated by the discontinuance of the relationship. Contracts for will are enforceable in Mississippi.
Forbes v. St. Martin, COA March 5, 2013
A must-read opinion on ethical aspects of contingent-fee contracts and the duties of out-of-state lawyers who participate in Mississippi litigation without applying to the court to appear pro hac vice.
A JUDGE NEEDS YOUR PRAYERS
April 30, 2013 § 5 Comments
Chancellor Ed Roberts of Oxford suffered stroke symptoms while on the bench last week. He at first insisted on finishing his docket, but finally relented and agreed to be taken to the ER at Baptist Hospital.
It was at the hospital that he learned that he has inoperable lung cancer and brain cancer. He is headed to MD Anderson Hospital in Houston.
I know he and his wife Sheila would appreciate your prayers. Judge Roberts’ brother, Larry, is a judge on the Court of Appeals. Both are natives of Meridian.
SELF-INFLICTED DISMISSAL
April 24, 2013 § Leave a comment
The COA case of Maurer v. Maurer, handed down April 9, 2013, calls our attention yet again to the phenomenon of the self-represented parties and the imaginative ways that they can inflict damage on their interests using the legal system for that purpose.
Raven and Michael were divorced in 2006. Commencing in 2007, they engaged in a long-running battle over custody and visitation in which allegations of sexual abuse were made, a GAL was appointed, a termination of parental rights action was filed, custody orders were entered bouncing the children from one parent to the other, and, finally, a hearing was held in 2011, on the termination of parental rights, pleadings for modification of both visitation and child support, and multiple contempt allegations.
The chancellor ruled against Raven’s termination request and found Michael in contempt for failure to pay child support. But the judge did not adjudicate the amount of the arrearage or the amount of reduction in child support Michael should have; instead, she ordered the parties to submit proposed findings of fact and conclusions of law on those issues.
Raven filed a pro se appeal. Michael is listed as pro se in the appeal, also.
Just for fun, let’s have a little quiz on how the COA ruled. Multiple choice, pick the likely outcome:
(A) The appeal is dismissed because this was an MRCP 81 action at trial, and MRCP 81 is hopelessly outdated and anachronistic and too complicated for pro se litigants to comprehend;
(2) The appeal is dismissed based on MRCP 44.1, determination of foreign law; or
(x) The appeal is dismissed because the chancellor’s “final judgment” adjudicated fewer than all of the contested issues, and there was no certification per MRCP 54(b).
If you guessed (x), you’re right. As the court’s opinion, by Judge Maxwell, stated, although the chancellor adjudicated “the vast majority of disputed issues,” there were matters left unaddressed, so there was no final, appealable judgment, and the COA has no jurisdiction unless there had been a certification under MRCP 54(b), or Raven had gotten leave to file an interlocutory appeal, which (surprise, surprise) she did not do.
The only remarkable thing to me about this case is how people, heedless of the legal harm and expense they can inflict on themselves, persist in pursuing complex legal matters pro se. We’ve seen many cases over the past several years where the R54(b) snare tripped even skilled lawyers; how is a lay person to know how to negotiate these shoal waters? As I have observed many times, I have never seen a pro se litigant walk out of the court room in better shape than when he or she walked in. Raven went to a lot of expense in this appeal for nothing.
THE IMPORTANCE OF THE SPONSORING WITNESS
April 23, 2013 § 2 Comments
The COA case of Estate of James D. Hodges, Deceased: Hodges v. Hodges, decided March 12, 2013, stands for the important proposition that, merely because you have an appraisal report, it does not mean that the judge can consider it.
The case involved a property dispute in an estate between Daniel, son of the decedent, and his step-mother, Susan. At a hearing in 2010, the then-sitting chancellor ordered Daniel to obtain appraisals of property in controversy, and that, if Susan was unhappy with the appraisal she could obtain her own. Daniel hired an appraiser, Livingston, to do the work. Susan, however, never got her own appraisals.
At trial in 2011, before another chancellor who replaced the original chancellor, Susan objected to admission of the appraisals on the ground that Daniel did not call the appraiser to sponsor and be cross examined about them. The judge ruled that they were admissible because the first chancellor had ordered them. No doubt he also pointed out that Susan could have gotten her own appraisals if she were not satisfied with Daniel’s, per the first judge’s explicit order. Susan appealed.
Judge Lee, for the court, stated:
¶8. This Court has stated, “Prior to its admission into evidence, a document or photograph must be authenticated.” Crutcher v. State, 68 So. 3d 724, 730 (¶12) (Miss. Ct. App. 2011). Mississippi Rule of Evidence 901(a) states that “authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” One illustration in Rule 901(b)(1) is for testimony of a witness with knowledge that “a matter is what it is claimed to be.”
¶9. For Livingston to be called as a sponsoring witness under Rule 901, he would have to meet the requirements for an expert witness under Mississippi Rule of Evidence 702 because his testimony would be based on the “specialized knowledge” required for an appraiser. Under Rule 702, a witness with “specialized knowledge” may testify to his opinion if “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”
¶10. When determining the admissibility of an expert’s testimony, the trial judge, applying a “modified Daubert standard[,] . . . must first determine whether expert testimony is relevant and, second, whether the proffered testimony is reliable.” Adcock v. Miss. Transp. Comm’n, 981 So. 2d 942, 946-947 (¶14) (Miss. 2008) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). Relevancy is determined by Mississippi Rule of Evidence 401 to be evidence that tends “to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Clearly, the appraiser’s evaluations of the properties are relevant to the determination of the property division, therefore meeting the first prong of the modified Daubert standard.
¶11. In order to determine reliability under the second prong of the Daubert standard, the party requesting the expert testimony to be admitted must offer proof “that the expert’s opinion is based upon scientific methods and procedures, not unsupported speculation.” Adcock, 981 So. 2d at 947 (¶16). The trial judge may look to factors including:
“whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether there is a high known or potential rate of error; whether there are standards controlling the technique’s operation; and whether the theory or technique enjoys general acceptance” within the expert’s particular field. Id. (quoting Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 37 (¶13) (Miss. 2003)).
¶12. The trial judge abused its discretion when it allowed the appraisals to be admitted into evidence without the appraiser as a foundational witness under Rule 901. Furthermore, Daniel offered no proof of Livingston’s methods or procedures for appraising either property. None of the applicable reliability factors were considered prior to admitting the appraisals. Additionally, Susan never had the ability to cross-examine Livingston on his methods or procedures.
¶13. An error constitutes reversible error “when it affects the final result of the case and works adversely to a substantial right of the party assigning it.” Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So. 2d 216, 221 (Miss. 1969). The trial judge relied on the appraisals to determine the division of the properties, therefore affecting the final result of the case. For this reason, we reverse the decision of the Simpson County Chancery Court.
A few points:
- When Daniel got the appraisals he could have propounded requests for admission to Susan to get her to admit to the authenticity and accuracy, etc. of the appraisals so that he did not have to call a sponsor. If Susan denied the request, causing Daniel to incur expense to call the witness who did establish the authenticity and accuracy, then he could petition the court to order Susan to reimburse his expenses.
- I would bet that the first chancellor’s order that Susan could obtain her own appraisals if she did not agree led everyone, second judge included, to believe that the burden was on Susan to do something if she did not agree. When she did not, it appeared that she had waived any objection. Only problem is, the first judge’s ruling did not relieve anyone from complying with the MRE.
- Judge Lee’s analysis is a great template for how you need to evaluate proof you will need to establish some points at trial.
- Think these things through. Instead of just stumbling into the court room on the date set for hearing, think ahead. Call opposing counsel and ask whether she is going to require you to call the expert. If she tells you that won’t be needed, and you get to trial and the other side reverses field, ask for a continuance to get the witness you need. In this case, I think counsel for Susan could easily have gotten a continuance for that purpose on the basis that the first judge’s ruling confused everyone.
WHIRLPOOL OF POST-TRIAL RELIEF
April 22, 2013 § 3 Comments
Anyone who has ever canoed or kayaked a swift-flowing stream knows that you can get caught in a whirlpool of cross-currents that is mighty difficult to get free of, and, instead of paddling along one’s intended course, one paddles frantically to break loose.
That’s the effect of what happened in McBride v. McBride, a COA case decided April 2, 2013. In that case, Robert and Vanessa were involved in a divorce. The court rendered a final judgment, and Vanessa filed a Rule 59 motion for rehearing (which she styled as a motion for reconsideration, btw). Some four months later Robert filed his “Motion for rehearing on Vanessa McBride’s Motion for Reconsideration, or, in the Alternative, for New Trial.” So, what we have here is a motion to “reconsider” the reconsideration; a post-trial whirlpool, if you will. Vanessa appealed.
In its opinion, the COA says at ¶13, “In her brief, Vanessa claims that Robert’s motion was not allowed ‘as the law allows one motion for reconsideration/new trial after a judgment is entered.’ Yet, Vanessa does not cite any authority for this legal principle.” And at ¶16: “As much as we may like to impose a one-motion-for-reconsideration rule, there is simply no authority to impose such a limitation …”
Now, it’s unclear to me exactly what Vanessa was attempting to argue with her one-motion claim, but I do believe there is a one-motion-for-Rule 59- relief rule expounded by our courts. In Edwards v. Roberts, 771 So.2d 378, (Miss.App. 2000), the COA addressed the issue in the context of a circuit court ruling on a motion for a new trial, which is the circuit court counterpart to the chancery court motion for rehearing, both of which are brought under MRCP 59. Here’s what the court said:
¶ 21. We start with the settled law that after a motion for new trial has been denied, no right exists to file for reconsideration. We find that reasoning equally applicable to motions for JNOV. “When the procedure authorizing a motion for a new trial has been followed and, pursuant to proper notice, the parties have made their representations to the court, and the court has duly considered and made his decision upon that motion, that completes both the duty and the prerogative of the court.” Griffin v. State, 565 So.2d 545, 550 (Miss.1990) (emphasis added). In Griffin, the lower court sustained two criminal defendants’ motion for new trial as to two of the counts, and overruled as to one count. Id. at 545. The defendants fled and were captured several years later. Id. At that time the State moved to set aside the order granting a new trial. Id. The judge sustained the State’s motions because he believed that he had made an error at law in granting a new trial. Id. On appeal, the Supreme Court found that the judge had no authority to revoke his earlier order for a new trial. Id.
¶ 22. The Griffin court relied on other states that had addressed the same question. Among other authorities, the court quoted the California Supreme Court’s holding that, “It has long been the rule that ‘A final order granting or denying [a motion for a new trial], regularly made, exhausts the court’s jurisdiction, and cannot be set aside or modified by the trial court except to correct clerical error or to give relief from inadvertence….’ ” Griffin, 565 So.2d at 549 (citing Wenzoski v. Central Banking Sys., 43 Cal.3d 539, 237 Cal.Rptr. 167, 736 P.2d 753, 754 (1987)). Once a motion for new trial has been ruled upon:
[I]f the party ruled against were permitted to go beyond the rules, make a motion for reconsideration, and persuade the judge to reverse himself, the question arises, why should not the other party who is now ruled against be permitted to make a motion for re-re-consideration, asking the court to again reverse himself? … This reflection brings one to realize what an unsatisfactory situation would exist if a judge could carry in his mind indefinitely a state of uncertainty as to what the final resolution of the matter should be.
Griffin, 565 So.2d at 549–50 (citing Drury v. Lunceford, 18 Utah 2d 74, 415 P.2d 662, 663–64 (1966)).
[9] ¶ 23. Though Griffin is a criminal case, the Supreme Court’s principal authorities for holding it improper to move for reconsideration of a motion for new trial were civil cases under versions of Rule 59. The Supreme Court’s conclusion that ruling on one motion for new trial exhausts the power of the court to entertain another such motion, certainly has an impact here. Until a judgment is final, a court has the authority to amend it. Griffin v. Tall Timbers Development, Inc., 681 So.2d 546, 552 (Miss.1996). Conversely, once it is final the authority is lost. The court’s initiating it own reconsideration removes the finality of the judgment after an earlier motion was denied. That creates the same difficulties that were discussed in Griffin v. State. Just as a second motion under Rule 59(a) cannot be brought by a party after an earlier Rule 59(a) motion has been denied, neither can the trial court itself entertain its own reconsideration under Rule 59(d) or Rule 50(b).
¶ 24. This is not to say that the finality of the judgment created by the denial of the first motion for new trial is absolutely unchangeable. Griffin v. State itself says that one last tool remains—correcting clerical error, relieving inadvertence, responding to newly discovered evidence, or otherwise considering the grounds for a Rule 60 motion. Griffin, 565 So.2d at 549. Since the state and federal versions of Rule 60 are similar, we can seek a better understanding of what can be achieved under Rule 60 by examining an explanation of federal caselaw. The Mississippi Supreme Court has said “the federal construction of the counterpart rule will be ‘persuasive of what our construction of our similarly worded rule ought to be.’ ” Bruce v. Bruce, 587 So.2d 898, 903 (Miss.1991) (citation omitted). The following section of an eminent treatise on the federal rules first explains that a denial of a new trial motion cannot be reconsidered, and then suggests what remains:
Term time as both a grant and limitation upon the district court’s power over its final judgments has been eliminated.[ footnote omitted] In lieu thereof and in the interest of judgment finality a short time period, that is not subject to enlargement, has been substituted, within which a party may move for a new trial or to alter or amend the judgment. When the court has decided such a motion in a way that the finality of the judgment has been restored, then relief, if any, should come by appeal or by a motion under Rule 60(b), which does not affect the finality of the judgment or suspend its operation. It would be destructive of the general aim of the Rules to permit successive attacks upon final judgments on motions to reconsider orders that deny new trial, or that deny or grant an alteration or amendment of the judgment.
The logic is clear that if there were no limit to motions for rehearing, there would never be an appeal from a final judgment as long as the successive motions are pending. It would be like getting caught in that whirlpool when you’re trying to paddle to finality.
McBride was reversed and remanded on other grounds. Judge Griffis’s opinion addresses the vernacular use of the term “reconsideration” at ¶15. It’s a subject we’ve discussed here previously.
