DO’S AND DON’TS FOR SUCCESSFUL MEDIATION
December 10, 2012 § Leave a comment
Attorney Don Dornan, Jr. of Biloxi authored a superb article on mediation techniques for The Mississippi Lawyer in the Fall of 2004. With his permission and that of the Bar, I have made some minor editorial changes to serialize it here, beginning tomorrow. Together with the pieces contributed by Lydia Quarles last month, you will have some impressive tools to help you develop skill in representing your clients in mediation.
Mr. Dornan’s extensive experience with mediation qualifies him to speak authoritatively on what you need to do to have a successful experience with mediation.
Mr. Dornan’s bio above omits that he is a past president of the Mississippi Bar Association.
“QUOTE UNQUOTE”
December 7, 2012 § Leave a comment
“I have striven not to laugh at human actions, not to weep at them, nor to hate them, but to understand them.” — Spinoza
“The more immoral we become in big ways, the more puritanical we become in little ways.” — Florence King
“The moral high ground is wreathed in fog.” — Arthur Miller
WHERE DID MISSISSIPPI’S CHANCERY COURTS COME FROM?
December 6, 2012 § 1 Comment
Note: Since neither of the law schools in Mississippi require their students to study chancery courts and equity jurisdiction as a discrete subject, I thought it would be useful and informative to set out a brief history of how we came to have separate chancery courts in our state, as a starting point for understanding how our courts have developed separate practices and procedure.
When the Mississippi Territory was created in 1798, there was influx of settlers into the region around Natchez, where significant wealth began to be accumulated. As land was developed and plantations were established, there was a growing need for legal professionals to research and litigate land claims, and to advise the growing business community.
Lawyers came to the new territory from Maryland, Virginia and the Carolinas. They brought with them the knowledge of their own legal systems based on English jurisprudence and judicial organization. The first chancery courts in the colonies had been established in Maryland, and that state’s equity system was regarded as being one of the most advanced. The courts in the Atlantic states administered equity as had the chancery courts of England.
The immigrant attorneys influenced the territorial legislature, and the first territorial courts established were the Superior Courts, which had both legal and equitable jurisdiction. Interestingly, the legislation establishing those courts provided that they “may ordain and establish all necessary rules for the orderly conducting of business in equity,” meaning that the courts and not the lawmakers made the rules of procedure.
Mississippi achieved statehood in 1817, and the first state constitution authorized the legislature to establish a separate court of chancery. From the inception of the State of Mississippi, then, chancery court has been a constitutional court. Nonetheless, it was several years before the legislature acted on its authority. In 1821, at the urging of Virginia native George Poindexter, the legislature did establish the separate superior court of chancery.
Supreme Court Justice Joshua G. Clarke (for whom Clarke County is named) was selected as the state’s first chancellor. At the time, the position of chancellor was appointed, and was regarded as preferable to a seat on the Supreme Court.
Practice in chancery then was vastly different from what it is now. There was one chancellor, who sat at the seat of government and one or two additional places, and to whom the cases were brought. Trials were the exception. Instead, testimony was presented by deposition. The “Learned Chancellor” examined the facts presented in the light of any applicable precedent (the case law of New York and England were the primary authorities until Mississippi developed its own substantial body of law), and rendered a scholarly and, hopefully, wise decision, which could then be appealed to the supreme court.
The constitution adopted in 1832 made the position of chancellor an elected one, and it is believed that Mississippi’s were the first elected chancery judges. That constitution provided for separate courts of equity, but also authorized the legislature to give circuit courts concurrent equity jurisdiction “in all cases where the amount or thing in controversy does not exceed $500; also all cases of divorce and for foreclosure of mortgages.” The provision for concurrent jurisdiction was made because it was burdensome for poorer litigants to have to travel to the locale of the chancery court.
To help alleviate the caseload, the position of Vice-Chancellor was created in 1842, and another was created in 1846. At that point, the three chancellors began riding what amounted to a circuit, holding court in different sections of the state, similar to our federal courts now.
By 1856, the business in chancery court had grown to such an extent that the constitution was amended in that year so that the circuit judges held chancery court in each county.
Up to 1868, probate matters had been entrusted to local “probate courts,” inferior to the chancery courts, which were staffed by lay persons who had no legal training or experience, and no judicial background. As a result, business was frequently mishandled, and the chancery courts were swamped with suits stemming from the inferior court actions. It was often said that the only issue when reviewing the action of a probate court was whether its actions were void or merely voidable.
As for practice and procedure, the principle established in territorial days that the chancellors would establish their own procedures continued in effect, but there was no central authority for the rules, and there was a confusing proliferation of procedural rules and practices that varied greatly from one chancellor to another. The resulting confusion gave rise to a call for uniformity among the courts.
Another source of dissatisfaction with the chancery system was that as the population grew there was an increasing demand for court time, but too few judges to meet the demand. Some called for more chancery judges, and others wanted to abolish the chancery courts and vest equity jurisdiction in the circuit courts, which were already in place serving every county.
In 1868, there was another constitutional convention formed due to Reconstruction. Its constitution once and for all established chancery court as a separate court, with chancellors sitting in districts across the state, comparable to already-established circuit court system. The concurrent jurisdiction arrangement with circuit court was terminated, as were the probate courts; the chancery courts with jurisdiction over the matters they fomerly handled.
In the wake of the 1868 constitution, the legislature began to address dissatisfaction with the patchwork of court procedures and rules by passing laws dictating procedures to the courts.
The provisions of the 1868 constitution for chancery carried over into the 1890 constitution, for the most part.
Over the years there were few changes in court legislation. In 1916, the legislature passed a bill requiring that the former method of taking testimony by deposition in chancery be abolished in favor of oral testimony.
In 1924, the legislature adopted the Chancery Practice Act, which settled once and for all, until 1981, that the legislature, and not the courts, would control the procedural and evidentiary rules of the courts.
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This information is distilled from Judge Griffith’s Mississippi Chancery Practice, 2nd Ed., 1950.
WHAT TO DO AFTER THE SPECIAL MASTER REPORTS
December 5, 2012 § Leave a comment
It is my practice to appoint guardians ad litem to serve as special masters pursuant to MRCP 53. That rule vests the special master with broad powers, including subpoena powers and auhority to hold evidentiary hearings. The ultimate function of the special master is to produce a report, which is addressed in MRCP 53(g), which reads as follows:
(g) Report.
(1) Contents and Filing. The master shall prepare a report upon the matters submitted to him by the order of reference and, if required to make findings of fact and conclusions of law, he shall set them forth in the report. He shall file the report with the clerk of the court and, unless otherwise directed by the order of reference, shall file with it a transcript of the proceeding and of the evidence in the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.
(2) Acceptance and Objections. The court shall accept the master’s findings of fact unless manifestly wrong. Within ten days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as provided by Rule 6(d). The court after hearing may adopt the report or modify it or may reject it in whole or in any part or may receive further evidence or may recommit it with instructions.
(3) Stipulation as to Findings. The effect of a master’s report is the same regardless of whether the parties have consented to the reference; however, when the parties stipulate that a master’s finding of fact shall be final, only questions of law arising upon the report shall thereafter be considered.
(4) Draft Report. Before filing his report a master may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions.
That provision for acceptance and objections is what tripped up the appellants in the COA case of Gettis and Montgomery v. Frison, decided October 30, 2012.
To make a long and sinuous train of events short, Gettis and Montgomery filed an objection to the special master’s report, but neither noticed it for hearing nor apparently served a copy of their objection on the judge. The chancellor entered an order adopting the report, and the objectors appealed.
The COA cited Miles v. Miles, 949 So.2d 774, 778-9 (Miss.App. 2006) for the proposition that the appellants can not complain that the were denied the right to a hearing when they did not comply with the procedural requirements of 53(g), which conditions the right to a hearing on the filing of an objection and motion and giving notice of hearing per MRCP 6(d).
If you are involved in a case where a special master has been appointed, be sure you read and comply with Rule 53 to the letter. The filing of an objection and a hearing thereon may be your only opportunity to get the report modified or tweaked for your client’s benefit, because 53(g)(2) specifically dictates that “The court shall accept the master’s findings of fact unless manifestly wrong.”
As I have said here many times: Read the rule. That hazy recollection from the last time you glanced at a part of it twelve years ago might not serve you well at all.
And a side note: In the Gettis and Montgomery case, the COA decision by Judge Irving points out several times that the appellants never filed a post-trial motionasking the chancellor to take another look at how the case had played out. The insinuation is that the judge may have relented and given them a chance to make a record, but we will never know that because they did not file a motion for rehearing. As we have discussed here before, you are not required to file a post-trial motion in chancery as a prerequisite to an appeal, but it may just give you that one more bite at the apple that you need.
THE ROLE OF THE SUBSCRIBING WITNESS
December 4, 2012 § 1 Comment
In the MSSC decision in Estate of Holmes, decided November 29, 2012, there was a proceeding for solemn probate. The two subscribing witnesses were called to testify, and their testimony established that: they did not know they were witnessing a will; they that the testator did not request that they witness a will; and that they did not satisfy themselves that the testator was of sound and disposing mind when she executed the will. The MSSC reversed the chamncellor’s decision admitting the will, holding that the subscribing witnesses did not satisfy the requirement of “attesting” witnesses.
Justice Dickinson’s opinion states, beginning at ¶ 10:
Mississippi law empowers “[e]very person eighteen (18) years of age or older, being of sound and disposing mind” to make a will which, if not “wholly written and subscribed” by the testator, must be “attested by two (2) or more credible witnesses in the presence of the testator or testatrix [MCA 91-5-1]. The attesting witnesses must meet four requirements: First, the testator must request them to attest the will [Green v. Pearson, 145 Miss. 23, 110 So. 862, 864 (1927)]; second, they must see the testator sign the will [Matter of Jefferson’s Will, 349 So.3d 1032, 1036 (Miss. 1977)]; third, they must know that the document is the testator’s last will and testament [Estate of Griffith v. Griffith, 20 So.2d 1190, 1194 (Miss. 2010)]; and finally, they must satisfy themselves that the testator is of sound and disposing mind and capable of making a will [Matter of Jefferson’s Will, Id.].
¶11. These formalities associated with attesting a will are important, not only as safeguards against fraud by substitution of a different will than the one signed by the testator, but also to make sure a person executing a will is of sound and disposing mind.
And this at ¶ 14: “One may not witness a will in ignorance.”
I would say that most of us who have ever prepared simple wills as a routine matter for clients have not paid heed to the exacting requirements that are imposed on subscribing witnesses by operation of the case law in this area. But, as this case illustrates, it is worth re-examining how you select and instruct your subscribing/attesting witnesses as to their duties, and, more importantly, how you document what it is that they are witnessing. By that latter point, I mean to suggest that you might want to scrutinize that subscribing witness affidavit form that is fossilized in your comouter and which you have been using for more than 35 years, to see whether it is stout enough to pass muster in a trial of this sort, and whether it would help jog the memory of the witness to the extent that the witness’s testimony would be helpful.
Justice Pierce’s dissent raises some good points about the prudence of requiring witnesses, some of whom performed their duties decades before, to have almost perfect recall of the events surrounding the subscription of the document. I know that I have been asked several times to recall events surrounding similar transactions, and I have found my memory murkily general and unhelpful, at best. Imagine a lay person who is not familiar with all of these legalities and their import being asked similar questions.
A CAVEAT ABOUT PROCESS BY CERTIFIED MAIL
December 3, 2012 § Leave a comment
MRCP 4(c)(5) allows for process by certified mail on a natural person outside the state. There are two requirements: (1) that a copy of both the summons and the pleading be sent by certified mail, return receipt requested, restricted delivery; and (2) that there be evidence of the delivery or by the envelope returned marked, “Refused.” If either of the requirements are not met, you have to reissue process.
There must be proof that both “the summons and the complaint” (that’s the language of the rule, which I interpret to mean the summons and the pleading initiating the instant action) were included in the certified mailing. You can do this yourself by affidavit or certficate of service in the court file, or you can ask the clerk to do it with a notation on the docket, as in MRCP 4(c)(4)(C). Your notice that the petition or other pleading was sent, not mentioning the summons, is inadequate process. Likewise, merely mailing the summons alone is not enough.
It is not adequate for the process to be issued and addressed to “John Smith,” and for the return receipt to be signed by “J.W. Smith” or “Kathy Smith for John Smith,” or “Phyllis Smith, mother of John Smith,” or any other person. Also, the record must show that the signature on the receipt is actually that of the party to be served. In a recent case in my court, the signature on the receipt unquestionably did not even remotely resemble the defendant’s signature on the original property settlement agreement or on a return mail receipt for an earlier proceeding.
And, of course, the process must be timely served. For a Rule 81 summons, the return receipt must show deliver within the requisite time.
Also, the rule specifies that it applies to “a person outside this state.” In my opinion, it does not apply to natural persons located in Mississippi. There is a first-class-mail process provision for persons in Mississippi at MRCP 4(c)(3), and it does allow at its subsection (B) for service “in any other manner permitted by this rule,” if the required acknowledgment of mailing is not returned. But Rule 4(c)(5) specifically limits itself to “a person outside this state …”
The rules for serving an out-of-state corporate entity or an out-of-state government entity are spelled out separately in MRCP 4(d)(4) and (8), respectively.
When I practiced, I almost never used certfied mail process (or first class mail either, for that matter). In my experience, postal employees don’t take any care to make sure that the deliveree is actually the addressee, or that the delivery is truly “restricted” within the meaning of the term, or that any of your needs are met. They are more concerned with getting that letter out of their hands, with a signature on the green card that they can hand off to somebody else. I usually persuaded my clients to go to the extra expense of retaining the services of a process server to save time and frustration. But I recognize that in these times of economic strain your clients appreciate anything you can do to save them some money.
If you’re going to use certified mail process, take the time and pay the attention to do it right. Read the rules. Process rules are to be strictly construed. Sloppy handling will result in unnecessary, frustrating delay for your client and further expense to get that summons served.
GETTING WARNERIZED
November 30, 2012 § 6 Comments
George Warner was chancellor in the 12th District from 1982 through 1994. Every lawyer who ever practiced in his court can tell you dozens of hilarious stories about things that happened during trials and some of his zany opinions. When you got zinged by one of his unexpected rulings, your colleagues would shake their heads and say you were the latest to be “Warnerized.” One example is the case where he denied the parties a divorce and found that they had come to an “exact tie” on the Albright factors, leaving the parties in status quo ante but poorer for their attorney’s fees. Another example is the divorce case where he ordered the sheriff to take possession of the parties’ 26 chickens, and to pluck, gut, clean and freeze them, and then to give each party 13. I never heard whether the sheriff did all that himself or got someone else to do it. Judge Warner also ordered a bailiff in a child-support contempt case to go to a man’s farm and shoot his registered quarter horse to free up the money that the man claimed he was spending on feed. The man relented and the judge granted a reprieve.
Here is one of his gems from a 1990 opinion:
“The problem with going to Court and not telling the truth is many-fold. You run the risk of being charged with perjury which seldom happens, quite frankly. But what is more important, you run the risk of hurting a case rather than helping a case, because there are very few judges that I have ever met who were neither male nor female. They are one or the other, and all of them at one time or another have seen, heard, or been involved in most of life’s problems. Yet, people come to court and assume that judges are stupid, believe anything, or what-have-you. We really don’t. And when we, quite obviously, do not, then we wonder what to do with the facts in a case.
“The defendant runs a one-room motel. I think everybody in town has slept at her house, except her attorney and the manager of the store that fired her for stealing. She didn’t testify that her attorney had spent the night there. I believe everybody else that wandered through this courtroom stayed at her house. Certainly all the male people did. It is a one-bedroom house. It must get crowded over there. It sounded like a dog pound. It is certainly not a place fit and proper to place a child.”
Here is one for the legal scholars from 1987:
“The Statute of Frauds has probably received almost as much attention as perpetuities. Both arose many, many years ago in the days of merry old England. The interpretations of the statute of frauds and the rule against perpetuities vary with who is doing the interpreting. It is almost as bad as Lou Costello’s baseball dialogue of Who is on first and What is on second. This Court admits that I fall into the category of “I don’t know” on third. If I were asked to make a speech tomorrow specifically on the Statute of Frauds, I would suddenly become sick and go fishing.”
And one more from 1991:
“Young man, you come up here. You stand right there. The last person that got up and charged out of my courtroom and slammed the door, I fined him $100 and put him in jail for three days. Now, if you don’t have any more respect for the court than that, I am going to give you something different to do. I find you in willful contempt of this Court. I am going to let you wash every one of the Sheriff’s cars every Saturday for the next four Saturdays. The first day you don’t show up, I will personally carry you to Youth Court and do all I can to encourage the Youth Court Judge to send you to the state reform school. You have no respect for authority whatsoever when you get up and charge out of my courtroom. Do you understand what I am saying? (Answered in the affirmative.) Saturday morning at exactly 8:00 you will report to the Sheriff’s Office. If it is pouring down rain, wear your raincoat. I want them washed in the rain.”
In a notorious case, he slumbered through testimony after lunch only to awaken with a start and exclaim, “Overruled!” The lawyers pointed out that no one had objected, to which the judge replied, “Well, you should have.” [The judge’s version is that he sustained the objection, but the two attorneys present say he overruled it; one of them says that he then asked the judge, “If we should have objected, why did you overrule it?”]
Judge Warner is also known as the judge who entered an order finding himself in contempt for not showing up for a trial, fined himself $100, and went to the clerk’s office and paid it.
The judge still wanders through the courthouse from time to time. One day he came by my office wearing a t-shirt that read “I DO WHATEVER THE VOICES INSIDE MY HEAD TELL ME TO DO.” He dropped by Monday and gave me and several others a copy of his latest book, Through the Eyes of a Judge, which features excerpts from his many opinions. The quotes above are taken from that book.
JUST AND PROPER UNDER THE CIRCUMSTANCES
November 29, 2012 § Leave a comment
A chancellor has the power to impose conditions that may seem “just and proper under the circumstances,” regardless whether any party demanded such relief. Miss. State Highway Commission v. Spencer, 233 Miss. 155, 101 So.2d 499, 504-05 (1958).
The source of this power is apparent in several of the maxims of equity:
- Equity will not suffer a wrong without a remedy.
- Equity delights to do complete justice and not by halves.
- Equity acts specifically and not by way of compensation.
The proper focus of a chancery court remedy, then, should be to fix the underlying problem, completely and not in part.
In three recent COA cases, the court upheld chancellors’ rulings where the trial judge went beyond the pleadings to fashion a remedy designed to fix the underlying problem.
In Goolsby v. Crane, decided October 23, 2012, and discussed in a previous post, the parties were before the court on the mother’s petition to modify to increase child support, and the father’s counterclaim for custody. After hearing all of the testimony, particularly that of the children, the chancellor found that the then-existing visitation schedule was not working, and he modified the visitation schedule. No one had asked for that particular relief, but the COA affirmed on the basis that there was substantial evidence to support the judge’s action.
The case of Finch v. Finch, handed down October 2, 2012, which was the subject of a previous post here, arose from post-divorce contempt and modification procedures. The ex-husband pled that the ex-wife’s alimony should be terminated because she had misled him about joint debts when he agreed to a property settlement agreement, and he now found himself saddled with considerable debt. The chancellor took it a step further and found that the ex-wife had committed a fraud on the court, justifying termination of her alimony. The ex-wife appealed, copmplaining that the ex-husband had failed properly to plead fraud (see Rogers v. Rogers, decided August 1, 2012, and posted about here). The COA affirmed, finding that there was a substantial basis to support the chancellor’s decision, and pointing out anyway that the mention of the words “falsely represented” in the ex-husband’s petition was enough notice that the issue was in play. The court also pointed out that the chancellor has the power under MRCP 60(b) on her own motion to address fraud.
In Scott v. Scott, decided October 30, 2012, the parties had entered into a 1997 property settlement agreement that gave the ex-wife all of the ex-husband’s Tier II Railroad Retirement Benefits “through the date of the divorce.” A separate order was drafted for submission to the retirment agency in the form required by that agency, but the order left out the phrase “through the date of the divorce.” Predictably, when the husband applied for his benefits, he learned to his chagrin that the agency, relying on the order, had awarded the wife 100% of the Tier II without limitation. The ex-husband asked the chancellor to modify to correct the situation, and the ex-wife denied that the property division could be modified. The chancellor brushed aside both positions and invoked MRCP 60(a) to correct the clear discrepancy between the express terms of the parties’ agreement and the order. The COA affirmed.
The common thread in each of these cases is that the trial judge did what she or he deemed “just and proper under the circumstances” to fix the underlying problem. It’s a matter of substance over form.
DISAPPEARING LINK CATEGORIES
November 28, 2012 § Leave a comment
Some time this afternoon all of the link categories (over there on the right side of the page) disappeared, amalgamating all of my links into one amorphous blog-glob. I tinkered all afternoon to fix it and finally emailed wordpress for help.
Fret not. The tech folks are working on a system-wide fix.
THE BENEFIT OF A WHOLESOME AND STABLE ENVIRONMENT
November 28, 2012 § Leave a comment
MCA 93-5-24(1)(e)(i) provides that, if the court finds both parents have abandoned or deserted a child, it may award physical and legal custody to ” … [t]he person in whose home the child has been living in a whoesome and stable environment.” And the case of Lucas v. Hendrix, 92 So.3d 699, 705-6 (Miss. App. 2012) says that once the chancellor has found that both parents have deserted the child, custody may be awarded per the statute without first addressing the Albright factors.
Those little gems are in ¶ 17 of the decision in Hamilton v. Houston, decided by the COA November 6, 2012.
In that case, the chancellor found that both of the natural parents had deserted the child. Once he made that finding, the chancellor did go through an Albright analysis, the result of which was to award custody of a minor child to the paternal grandparents over objection of the mother. The COA upheld the chancellor’s decision, and several points raised in Judge Maxwell’s opinion are ones you should file away for future use:
- Desertion involves forsaking a person to whom one is legally obligated, or forsaking or avoiding one’s duty to that person. In re Leverock & Hamby, 23 So.3d 424, 429-30 (Miss. 2009).
- Abandonment is relinquishment of a right or claim (¶ 17).
- A finding of either abandonment or desertion by clear and convincing evidence is enough to rebut the natural parent presumption. In re Smith, 97 So.3d 424, 429-30 (Miss. 2012).
- In this case, although both parents paid some support for the child, they both admitted that the money they paid was not sufficient to support him.
- An unusual feature of this case was that the grandparents, who were awarded custody, did not file their own pleadings, but merely joined in their son’s (father of the minor child) petition for custody. The COA held that prayer in the son’s petition that he be awarded custody was adequate to empower the judge to adjudicate the issue in any way that was in the best interest of the child.
The fact pattern in this case should be unhappily familiar to any lawyer who has done much family law in the past several years. It seems that grandparents are more frequently becoming surrogate parents, and chancellors are more often called upon in these cases to be arbiters of the child’s best interest.
It appears to me that these cases are trending toward giving more weight to the quality of the parental relationship and less to the quantity. As in this decision, a parent who, for instance, provides some financial support but forsakes the parental duties of emotional support, presence, attention, and other parenting responsibilities, is at risk for a finding of desertion.
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