PROTECTING YOUR ATTORNEY’S FEES AWARD IN A DIVORCE CASE
April 9, 2012 § 5 Comments
When you have worked hard on a case and prevailed, you’d like to be adequately compensated. You put on your proof of attorney’s fees and the judge makes a handsome award. Only problem is, the other side appeals and the COA tosses out your award, much to your chagrin. How should you have bulletproofed that award?
In the case of Alexander v. Alexander, decided March 27, 2012, the chancellor had awarded Amanda Alexander a judgment for nearly $32,000 in attorney’s fees in a divorce action against her husband, Khari. The COA reversed the special chancellor’s decision for failure of to make any findings of inability to pay or about the reasonableness of the request. Here’s what the opinion said on the point:
“An award of attorney[’s] fees is a matter largely within the sound discretion of the chancellor.” Dickerson v. Dickerson, 34 So. 3d 637, 648 (¶43) (Miss. Ct. App. 2010) (citing Smith v. Smith, 614 So. 2d 394, 398 (Miss. 1993). “Attorney[’s] fees should only be awarded in an amount that compensates for services rendered.” Id. at (¶44) (citing McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982)). The factors to be analyzed in determining whether to award attorney’s fees include: (1) “the relative financial ability of the parties;” (2) “the skill and standing of the attorney employed,” (3) the novelty and difficulty of issues in the case, (4) the responsibility required in managing the case, (5) “the time and labor required,” (6) “the usual and customary charge in the community,” and (7) whether the attorney was precluded from undertaking other employment by accepting the case. McKee, 418 So. 2d at 767.
¶15. The testimony showed Khari earned approximately $90,000 a year; however, Khari did not file a financial statement pursuant to Uniform Chancery Court Rule 8.05. Amanda asserts that her inability to pay her attorney’s fees was proven because the chancellor found her household expenses exceeded her income. The chancellor made no findings of fact on the issue of her inability to pay or Khari’s ability to pay. An itemized bill from Amanda’s attorney is included in the record; however, the chancellor did not examine the reasonableness of the fees. Before attorney’s fees are awarded, the chancellor must determine if the fees were fair, reasonable, and necessary. Dickerson, 34 So. 3d at 648 (¶44) (citing McKee, 418 So. 2d at 767). Since the chancellor failed to make findings pursuant to the McKee factors, we also reverse and remand on this issue.
In a divorce case, the party seeking an award of attorney’s fees must prove inability to pay. Deen v. Deen, 856 So.2d 736, 739 (Miss.App. 2003); Duncan v. Duncan, 915 So.2d 1124, 1128 (Miss.App. 2005); Sullivan v. Sullivan, 43 So.3d 536, 541 (Miss. App. 2010). Ability of the opposing party to pay must also be considered. Sarver v. Sarver, 687 So.2d 749, 756 (Miss. 1997).
Interestingly, the COA decision had already reversed and set aside the divorce in Alexander for failure to prove grounds before it addressed the award of attorney’s fees. There is no mention of the effect of that reversal on the fee award.
So what could counsel here have done to protect the attorney’s fees? Here are a few suggestions:
- It’s axiomatic that if you don’t put on the proper proof, the chancellor will not have the basis to make an adequate ruling. Print out the McKee factors and address every single one of them in your testimony. Don’t skip or skimp on anything! There is case law to the effect that, even if the chancellor never mentions McKee, he will presumed to have considered the factors IF there is evidence in the record that supports the award.
- Make sure you have adequate time records or other documentation in support of your testimony as to time spent, expenses, work done, and put your records into evidence. Here is a link to a helpful post on what you need to prove to get that award of attorney’s fees.
- If you feel that the chancellor has not made sufficient findings, file a Rule 59 motion and ask the judge to supplement his findings. Better yet, provide him or her with proposed findings of fact and conclusions of law on the point that address every applicable McKee factor.
When you have worked hard on a case, you want and deserve to be paid. Sometimes your client won’t be able to pay you, and your only realistic option is to look to the other party. Don’t leave it to chance. Make a bulletproof record.
“QUOTE UNQUOTE”
April 6, 2012 § Leave a comment
“I am more afraid of an army of one hundred sheep led by a lion than of an army of one hundred lions led by a sheep.” — Charles Maurice de Talleyrand-Perigord
“”Revolution only needs good dreamers who remember their dreams.” — Tennessee Williams
Tennessee Williams
“The individual has always to struggle to keep from being overwhelmed by the tribe. If you try it, you will be lonely often, and sometimes frightened. But no price is too high to pay for the privilege of owning yourself.” — Friedrich Nietzche
LITERARY HYBRIDS
April 5, 2012 § Leave a comment
Back in the 90’s the Washington Post invited its readers to create new literature by combining the works of two different authors, and to provide a suitable description of the merged book.
The prizewinners:
Machiavelli’s Little Prince. Antoine de Saint-Exupery’s classic children’s tale as presented by Machiavelli. The whimsy of human nature is embodied in many delightful and intriguing characters, all of whom are executed.
Green Eggs and Hamlet. Would you kill him in his bed? Thrust a dagger through his head? I would not, could not, kill the King. I could not do that evil thing. I would not wed this girl, you see. Now get her to a nunnery.
Where’s Walden? Alas, the challenge of locating Henry David Thoreau in each richly-detailed drawing loses its appeal when it quickly becomes clear that he is always in the woods.
Catch-22 in the Rye. Holden learns that if you’re insane, you’ll probably flunk out of prep school, but if you’re flunking out of prep school, you’re probably not insane.
2001: A Space Iliad. The Hal 9000 computer wages an insane 10-year war against the Greeks after falling victim to the Y2K bug.
Rikki-Kon-Tiki-Tavi. Thor Heyerdahl recounts his attempt to prove Rudyard Kipling’s theory that the mongoose first came to India on a raft from Polynesia.
The Maltese Faulkner. Is the black bird a tortured symbol of Sam’s struggles with race and family? Does it signify his decay of soul along with the soul of the Old South? Is it merely a crow, mocking his attempts to understand? Or is it worth a cool mil?
Jane Eyre Jordan. Plucky English orphan girl survives hardships to lead the Chicago Bulls to the NBA championship.
Looking for Mr. Godot. A young woman waits for Mr. Right to enter her life. She has a loooong wait.
The Scarlet Pimpernel Letter. An 18th-century English nobleman leads a double life, freeing comely young adulteresses from the prisons of post-Revolution France.
Lorna Dune. An English farmer, Paul Atreides, falls for the daughter of a notorious rival clan, the Harkonnens, and pursues a career as a giant worm jockey in order to impress her.
The Remains of the Day of the Jackal. A formal English butler puts his loyalty to his employer above all else, until he is persuaded to join a plot to assassinate Charles de Gaulle.
The Invisible Man of La Mancha. Don Quixote discovers a mysterious elixir, which renders him invisible. He proceeds to go on a mad rampage of corruption and terror, attacking innocent people in the streets and all the while singing “To Fight the Invisible Man!” until he is finally stopped by a windmill.
Of Three Blind Mice and Men. Burgess Meredith has his limbs hacked off by a psychopathic farmer’s wife. Did you ever see such a sight in your life?
Planet of the Grapes of Wrath. Astronaut lands on mysterious planet only to discover that it is his very own home planet of Earth which has been taken over by the Joads, a race of dirt-poor corn farmers who miraculously developed rudimentary technology and regained the ability to speak after exposure to nuclear radiation.
The Exorstentialist. Camus psychological thriller about a priest who casts out a demon by convincing it that there’s really no purpose to what it’s doing.
Paradise Lost in Space. Satan, Moloch, and Belial are sentenced to spend eternity in a flying saucer with a goofy robot, an evil scientist, and two annoying children.
THE CURSE OF HCIT STRIKES AGAIN
April 4, 2012 § Leave a comment
Amanda Alexander filed for divorce charging her husband, Khari, with the sole fault ground of adultery. She had discovered amorous emails on Khari’s computer. For his part, Khari admitted being attracted to other women, and even having flirtations with them, including one episode in which he was alone in a hotel room with a woman and put on a condom, but he denied adultery.
Amanda also testified that Khari threatened her and used profane language, slapped a phone out of her hand when she attempted to call the police, and took her car keys so that she had to get the help of police to get them back.
At the conclusion of the trial, the special chancellor found that Amanda had not proven adultery and suggested that she move to amend her pleadings under MRCP 15 to seek a divorce on the ground of habitual cruel and inhuman treatment, which she immediately did, and the judge granted Amanda the divorce on that ground.
Khari appealed, complaining that it was improper to allow the amendment because the requirements of MRCP 15(b) were not met to allow an amendment.
The COA reversed. In Alexander v. Alexander, decided March 27, 2012, Judge Lee, writing for the court, said, beginning at ¶8:
“Mississippi Rules of Civil Procedure Rule 15(b) states that “when issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” We find the ground of habitual cruel and inhuman treatment was not pled by express or implied consent of the parties. The bulk of the testimony in this case centered around Khari’s e-mails to other women from his personal computer. Acts of adultery may be used as a factor to prove habitual cruel and inhuman treatment. Fisher v. Fisher, 771 So. 2d 364, 368 (¶13) (Miss. 2000). However, the chancellor found Amanda failed to prove adultery.
¶9. Further, even if habitual cruel and inhuman treatment was tried by express or implied consent of the parties, the evidence does not support a divorce on this ground. In order to establish the basis for a divorce on the ground of habitual cruel and inhuman treatment, the claimant must show by a preponderance of the evidence conduct that:
either endanger[s] life, limb, or health, or create[s] a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or in the alternative, be so unnatural and infamous as to make the marriage revolting to the offending spouse and render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance.
S. Hand, Mississippi Divorce, Alimony and Child Custody § 4-12 (2d ed. Supp. 1991); Gardner v. Gardner, 618 So. 2d 108, 113-14 (Miss. 1993). A causal connection between the treatment and separation must exist. Fournet v. Fournet, 481 So. 2d 326, 329 (Miss. 1985). “It is an extreme set of facts that will prove a divorce based upon habitual cruel and inhuman treatment.” Moses v. Moses, 879 So. 2d 1043, 1047 (¶9) (Miss. Ct. App. 2004) (quoting Keller v. Keller, 763 So. 2d 902, 908 (¶29) (Miss. Ct. App. 2000)).
The court went on to find that Amanda’s proof did not meet the standard required to prove habitual cruel and inhuman treatment (HCIT). As Judge Lee pointed out, Amanda, when asked in her testimony what was the reason she was seeking a divorce, answered “Adultery,” and said that the reason for the separation was the inappropriate relationships with other women. Judge Lee noted that the conduct that is the ground for divorce must be the cause of the separation, not some other ground, and he pointed out that, although adultery can be considered HCIT, in this case the trial judge had found that there was inadequate proof of adultery.
This is yet another case that hammers home 2 points: (1) Make sure your pleadings are in order and map out what you are going to try to prove at trial and how to get there; and (2) You might as well not even try to get an HCIT divorce unless you have the requisite proof.
Judge Ishee wrote a dissent, joined by Judge Carlton, concluding that the chancellor did have adequate proof to support a finding of HCIT, but the dissent did not carry the day.
Two more points:
First, this case is another unfortunate example where the chancellor tried to do what he felt needed to be done, but did not have either the proof in the record or proper pleadings to go on. It’s up to the attorney to make sure that the pleadings cast a wide enough net to cover everything that needs to be covered, and that there is sufficient direct and corroborating evidence to support the judge’s ruling.
Second, I had to laugh out loud when I read this statement by the special chancellor: ” … but under the new rules an amendment can be made right up to the final order.” No, I’m not laughing at the distinguished and respected former chancellor and COA judge who made that statement. I’m laughing at myself. Here’s why: several months ago I was talking with a young lawyer about a procedural matter, and I commented that “Under the new rules … ” we now have to do so and so. Her face clouded up, and I asked her whether I had confused her. “It’s not that,” she said “it’s only that I didn’t know we had some new rules.” I explained that I still called the MRCP, put into effect in 1983 (that’s almost 30 years ago), the “new rules.” She laughed innocently and said, “1983? I was still in diapers then!” Yikes. I have since tried to purge my speech of any reference to the “new rules,” at least until we actually do have some new rules. Still, it’s hard not to feel old as Moses when someone tells you something like that.
BLUEWATER BACKSPLASH
April 3, 2012 § 3 Comments
The MSSC decision in Bluewater Logistics v. Williford, 55 So.3d 148 (Miss. 2011), is notable for several reasons. First, it’s of value to lawyers who litigate over LLC’s and contracts as a guide to the parameters of litigation in that field. Second, it spelled the demise of the “heightened scrutiny” and “lessened deference” rules formerly applied when judges adopt verbatim one side’s proposed findings of fact and conclusions of law; a post in which I touched on that point is here.
To me, though, the most potentially far-reaching impact of Bluewater is its treatment of the pleadings and the scope of relief granted by the trial judge. The COA had reversed, ruling that the chancellor had impermissibly gone beyond the scope of the pleadings. The COA decision rested on three 19th-century cases.
The MSSC granted cert and the Bluewater appellants argued to the high court that the COA was correct because Williford’s complaint had sought only injunctive relief in the form of reinstatement as a member of the LLC, and that, as a result, the chancellor was in error in awarding him equitable relief in the form of a judgment for the value of his interest in the LLC. Here’s what Justice Dickinson, writing for the majority, said, beginning at page 157:
¶ 35. Mississippi has been a “notice pleading” state since January 1, 1982, when we adopted the Mississippi Rules of Civil Procedure. [citation omitted] Under Rule 8, a complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” and “a demand for judgment.” [citation omitted] “No technical forms of pleading or motions are required.” [citation omitted] Moreover, “[a]ll pleadings shall be so construed as to do substantial justice.” [citation omitted] Rule 54(c) states that every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled by the proof and which is within the jurisdiction of the court to grant, even if the party has not demanded such relief in his pleadings …. ” [citation omitted]
¶ 36. Our decisions have reflected the shift from older forms of “code pleading” to the Rules’ “notice pleading” paradigm. In Pilgrim Rest Missionary Baptist Church v. Wallace, we stated “it is axiomatic that the relief need not be limited in kind or amount by the demand but may include relief not requested in the complaint.” [citation omitted] And in Turner [Turner v. Terry, 799 So.2d 25, 39 (Miss.2001)], we stated: “A trial judge may award a party any relief to which he is entitled, even if the party fails to make a specific demand for such.” [citation omitted]
¶ 37. In holding that the chancellor erred in granting Williford money damages, the Court of Appeals inexplicably relied on three pre–rules cases, two of which date to the 1850s. [citation omitted] We now overrule Barnes, French, and Tucker to the extent that they conflict with the requirements and provisions of the Mississippi Rules of Civil Procedure and subsequent decisions of this Court.
¶ 38. We hold that Williford’s complaint was clearly sufficient to support an award of monetary damages. The complaint is titled “Complaint for Preliminary and Permanent Injunction and Damages.” The opening paragraph stated that Williford was seeking damages. Paragraph 5 alleged the ouster was unlawful, “warranting equitable and monetary relief.” Count I of the complaint was titled “Breach of Contract” and alleged breach of contract, for which the remedy is compensatory damages. In Count III, titled “Violation of the Mississippi Limited Liability Company Act,” Williford asserted “all rights and remedies available under the applicable statute, Miss.Code Ann. § [79–29–101], et seq.” [citation omitted] Under the section titled “Damages and Relief Sought,” Williford sought (among other things) compensatory damages, an accounting of all company assets, an appraisal of the fair-market value of his share of the company, and “any other relief to which he may be entitled.”
¶ 39. Viewed as a whole, we cannot say the chancellor was in error by finding that the complaint was sufficient to put Bluewater on notice that Williford was seeking monetary relief. Accordingly, Defendants’ argument that the chancellor granted Williford relief that was beyond the scope of the pleadings is without merit.
One of those 19th-century cases reversed by the court Terry v. Jones, was referred to by me in a prior post to emphasize that pleadings are not proof.
It remains to be seen how far the courts will go in applying the pleadings aspects of Bluewater. If the decision is limited to the underlying facts, then it should not be too earthshaking because the pleadings arguably did invoke the remedies that the trial court applied. If, however, the decision is taken to mean that notice pleadings require only notice of subject matter jurisdiction, thereby opening the door to all species of relief available thereunder, then your practice of chancery law may change dramatically.
Or maybe not. It has long been the law in Mississippi that in granting equitable relief the chancellor may order all relief necessary to effect an equitable remedy, whether pled for or not. For instance, in awarding lump sum alimony the chancellor may impose an equitable lien on real propterty to secure the payment. Or, where custody is sought, the judge may order the noncustodial parent to pay child support even where it was not sought. So perhaps Bluewater is not so much a dramatic shift in the tide as it is a mere ripple on the pond.
FYI, the Bluewater holding also calls into question a prior post of mine in which I stressed that you have to ask for specific relief in your pleadings if you expect to get it.
I encourage you to read the Bluewater decision carefully to get a handle on how it can help or hurt you. You will likely come up with ways to argue it to your advantage.
ALLOCATING MARITAL DEBT
April 2, 2012 § 1 Comment
Chancellors are often called upon to adjudicate issues of marital debt between warring divorce combatants. Many times the debt is secured by an asset, such as a car, or a home, or an appliance, and the debt often follows the asset with the effect of reducing its value in equitable division.
More and more frequently, though, I am seeing cases where the court is asked to divide marital debt that did not result in the acquisition of an asset. Some examples: Credit card debt for living expenses; credit card debt for a trip to Disney World; a loan to pay off pre-marital debts; or an IRA loan that paid a spouse’s credit card.
So what exactly is the state of Mississippi law vis a vis allocation of credit card debt in a divorce? Here are some cases that I think aptly set out the law on the point:
- “The courts of this state have consistently held that expenses incurred for the family, or due to the actions of a family member, are marital debt and should be treated as such on dissolution of the marriage.” Shoffner v. Shoffner, 909 So.2d 1245, 1251 (Miss.App. 2005). In that case, the court affirmed the trial judge’s order that Mrs Shoffner pay $6,486.04 of marital credit card debt based on extensive lists, prepared and offered into evidence by Mr. Shoffner, showing expenditures for automobile maintenance, holiday gifts for the family, gasoline, meals for the family, and so on.
- In Turpin v. Turpin, 699 So.2d 560, 565 (Miss. 1997), the Mississippi Supreme Court upheld the chancellor’s order that each party pay one-half of the marital debt in the absence of evidence that the debt primarily benefitted one or the other.
- In Bullock v. Bullock, 699 So.2d 1205, 1212 (Miss. 1997), the court affirmed an order for the husband to pay the wife’s credit cards where they had been used to purchase a television, sheets and other household items for the marital dwelling, and to pay for two nights in a hotel when he locked her out of the house.
- In Harbit v. Harbit, 3 So.3d 156, 161 (Miss.App. 2009), the court of appeals upheld the chancellor’s order classifying the debt in the wife’s name on her vehicle as marital, since she had borrowed the money to pay household expenses during a period when the husband was unemployed.
- There is a presumption that all debt is marital, since there is a corollary presumption that all assets are marital. Horn v. Horn, 909 So.2d 1151, 1165 (Miss.App. 2005).
- The fact that the spending may have been unreasonable or out of control is not dispositive. Wasteful spending and negligence in financial affairs are factors that the chancellor may consider in dividing the marital estate, but they are not controlling. Prescott v. Prescott, 736 So.2d 409, 418 (Miss.App. 1999).
- Debts incurred by a spouse pursuing goals other than the general welfare of the marriage are considered separate, and not marital, debt. Garriga v. Garriga, 770 So.2d 978, 984 (Miss.App. 2000).
- Debt incurred to pay a spouse’s gambling debts is separate debt. Lowrey v. Lowrey, 25 So.3d 274, 289 (Miss. 2010).
- Debt incurred to pay off a party’s pre-marital debt should be classified as non-marital. Fitzgerald v. Fitzgerald, 914 So.2d 193, 197 (Miss.App. 2005).
- Post-separation debt to pay pre-separation obligations may be considered marital only if there is adequate evidence to support a finding that the underlying debts were, in fact, marital. Phillips v. Phillips, 45 So.3d 684, 698-99 (Miss.App. 2010).
- In making a determination of how to allocate the marital debt, the court has to apply the Ferguson factors. Pulliam v. Smith, 872 So.2d 790, 796 (Miss.App. 2004).
- In Gambrell, v. Gambrell, 650 So.2d 517, 522 (Miss. 1995), the court said that “The liabilities as well as the assets of the parties must be taken into consideration when the chancellor effects an equitable distribution of marital [assets] and any other relief that may be appropriate such as alimony or child support.”
So, in a nutshell, our law is that the debts that are clearly for the benefit of the household are debts that the court should assign to one or both parties, according to the equitable principles laid out in Ferguson.
For my part, I question the wisdom of treating marital debt for living expenses the same way we do assets, but that’s the subject of another post. For now, as they say, it is what it is.
DICTA
March 30, 2012 § 2 Comments
- State trial courts’ use of judicial interrogation and Daubert gatekeeping techniques are highlighted in this interesting article at the Social Science Research Network. The trial judge as interrogator is a subject I’ve talked about here before. And I touched on Daubert analysis step by step at this post and here.
- A few of you may be old enough to remember door-to-door salesmen. They came to our homes bearing all manner of goods. One particular specie of the sales creature was the encylopedia salesman, and I am sure many sets of Collier’s, World Book, Americana, Book of Knowledge, and the venerable Brittanica arrived on household shelves (often to gather dust) across America via those Willy Lomans of yesteryear. Now the word is that Encyclopedia Brittanica is suspending print publication after 244 years. You will still be able to access it online by subscription, but I wonder, in an age when genuine scholarship seems to be demanded less and less in our schools, whether it will survive against the less authoritative but free online Wikipedia. We’ll see.
- Speaking of Wikipedia, Ohio State University’s Journal of Law and Policy for the Information Society has an interesting article in .pdf on citations to Wikipedia in law review articles.
- The 10 most popular law schools (highest percentages of accepted applicants who enroll) and the top ten with an increase in enrollment for 2011-2012.
- Clifford Winston in the NYT says law schools and bar exams are unnecessary and the legal profession should be deregulated. Andrew Ziaja disagrees. Articles from Oct 2011 that I’ve only now come across.
- Should law school be more academic or more practical? That is the question behind this article: The Better Angels of Our Profession.
- Looking to the flip, non-angelic, side of the profession, Tom Freeland at NMC blog continues his coverage of the Scruggs saga with reportage of the testimony and analysis of Scruggs’ motion to withdraw his guilty plea in Scruggs II (which involved then-Judge DeLaughter). Freeland’s coverage is day by day, and linked is only one day. You will have to click around on the site to catch all of the proceedings, but it is fascinating reading, as it has been for the nearly six years that the criminal cases have been pending and Freeland has been covering from his unique vantage point next door to the federal court house in Oxford.
JUDGE CARLTON’S PRIMER ON ADVERSE POSSESSION
March 28, 2012 § 1 Comment
To establish adverse possession requires proof by clear and convincing evidence of some rather elusive concepts established by the courts to interpret and apply MCA § 15-1-13. That’s why, whenever I find an exposition on the applicable law, I’m quick to share it so that you can use it.
The most recent useful primer on the subject is Judge Carlton’s opinion in the COA case of Greenwood v. Young, decided February 7, 2012. I’ve stripped out the law to provide you with a skinny you may want to add to your trial notebooks:
¶19. Mississippi Code Annotated section 15-1-13(1) governs claims of adverse possession, providing in part:
“Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title, saving to persons under the disability of minority or unsoundness of mind the right to sue within ten (10) years after the removal of such disability, as provided in Section 15-1-7. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than thirty-one (31) years.
In order to establish a claim of adverse possession, the party claiming to have adversely possessed the property must show, by clear-and-convincing evidence, that his possession was (1) under a claim of right or ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful. Pulliam v. Bowen, 54 So. 3d, 331, 334 (¶13) (citations omitted).
The factors:
Claim of Ownership. ¶21. “In the end, the ultimate question is whether the possessory acts relied upon by the would be adverse possessor are sufficient to fly his flag over the lands and to put the record title holder on notice that the lands are held under an adverse claim of ownership.” Hill v. Johnson, 27 So. 3d 426, 431 (¶19) (Miss. Ct. App. 2009) (citations omitted).
Actual or Hostile. ¶23. “The actual or hostile occupation of land necessary to constitute adverse possession requires a corporeal occupation, accompanied by a manifest intention to hold and continue to hold the property against the claim of all other persons, and adverse to the rights of the true owner.” Hill, 27 So. 3d at 431-32 (¶23).
Open, Notorious, and Visible. ¶26. “The mere possession of land is not sufficient to satisfy the requirement that the adverse possessor’s use be open, notorious, and visible.” Webb v. Drewrey, 4 So. 3d 1078, 1083 (¶19) (Miss. Ct. App. 2009) (citation omitted). An adverse-possession claim will not begin “unless the landowner has actual or constructive knowledge that there is an adverse claim against his property.” Id. “An adverse possessor ‘must unfurl his flag on the land, and keep it flying, so that the (actual) owner may see, and if he will, [know] that an enemy has invaded his domains, and planted the standard of conquest.’” Id.
Continuous and Uninterrupted for Ten Years.
Exclusive. ¶29. “Exclusivity, within the meaning of the statute, means that the adverse possessor’s use of the property was consistent with an exclusive claim to the right to use the property.” Hill, 27 So. 3d at 432 (¶27). “Exclusive use is at the most basic level the intent of actual and hostile possession.” Id. “To satisfy the element of exclusivity, ‘the claimant’s conduct must afford an unequivocal indication that he is exercising dominion of a sole owner.’” Stone v. Lea Brent Family Invs., L.P., 998 So. 2d 448, 455 (¶25) (Miss. Ct. App. 2008) (citations omitted). “Exclusive use” does not mean that no one else uses the property. Id. “Rather, exclusive use indicates a right to use the land above other members of the general public.” Id.
Peaceful. ¶30. The adverse possession must be peaceful. Jordan v. Fountain, 986 So. 2d 1018, 1023 (¶17) (Miss. Ct. App. 2008). “The mere existence of a dispute over the use of land does not present an obstacle to satisfy the element of peaceful use.” Hill, 27 So. 3d at 432 (¶29). “Simple disputes often arise between neighboring landowners, but do not rise to the level of destroying the peaceful existence between them.” Id.
Clear and Convinving Evidence. The mere fact that there is contradictory evidence does not mean that the credible evidence is not clear and convincing. See, Stancil v. Farris, 60 So. 3d 817, 824 (¶14) (Miss. Ct. App. 2011) “If clear[-]and[-]convincing evidence could never be shown in the presence of contradictory testimonies, virtually no case requiring a showing by clear and convincing evidence could be proven. Such is clearly not the case.”
You should read the opinion carefully to see how the chancellor applied the law to the facs, and how the COA viewed the chancellor’s ruling. Your case may be distinguishable.
Another adverse possession post highlighting a COA ruling by Judge Roberts is here.
You can find an annotated checklist of adverse possession factors by following the link.
The latest COA case on adverse possession is Massey v. Lambert, decided March 27, 2012, in which the court upheld the chancellor’s ruling that the use of the property had been permissive, which defeats a claim of adverse possession.
