DST THIS WEEKEND
March 8, 2012 § Leave a comment
Can it be? Daylight savings time (DST) already? That’s what my calendar says: Sunday, March 11, “Daylight Savings Time begins.” So, at 2:00 am on Sunday, if you haven’t set your clock ahead, erasing a precious hour of slumber, you will be late for church or any other activity you have planned that day.
Although it seems awfully early for DST, it seems awfully early for a lot of things this year. Daffodils started blooming here in east-central Mississippi ‘way back in January, as did the forsythias. We have had an indoor-outdoor hibiscus blooming since last month, as is my wife’s fecund lemon tree (lugged faithfully inside and then back outside with every approaching and passing cold front). The peach trees beside the house are awash in hot pink blooms. The trees are leafing out.
And if you need more convincing, here’s the first robin of spring …
Okay, he didn’t quite make it. Maybe he had a brief, spectacularly unsuccessful “Angry Birds” episode, or maybe he was distracted by a neighborhood cat. Whatever, his pilot error resulted in this fatal collision with one of my dining room windows and suspension in the now-punctured window screen.
So we skipped winter, and spring is here. The balmy days and nights will soon yield to the blast-furnace heat and sauna humidity of summer … perhaps as soon as next month, at the pace we have been going.
Oh, I’m sure we’ll yet have a spell of cold weather. Seems like we always do in April. I remember one April, around the 8th, when we had eleven inches of snow. The temperatures did skitter back into the 80’s a mere couple of days after our “Mississippi blizzard,” but nature had had its way, reminding us once again that it can be cold when it chooses to be.
We shouldn’t really complain about this early grace of pleasantry, I know. The temperatures are easy and the breezes are light (if pollen-filled). Still, I look down the calendar at August and September and wonder what these warm temperatures portend. It’s only natural when you have been through a calamity like August, 2005.
Stay tuned.
JUDICIAL PAY RAISE CLEARS THE HOUSE
March 7, 2012 § Leave a comment
83-37. Needed 78 to pass. Now on to the Senate.
Thanks and congrats to all who were involved in and supported this effort.
SOME PENDING SENATE BILLS YOU MIGHT WANT TO WATCH
March 7, 2012 § 1 Comment
Here are some bills pending in the Mississippi Senate that might affect your chancery practice:
SB 2031. Gaming winnings may be intercepted for child support obligation.
SB 2037. Allows for redaction of Social Security numbers in recorded documents.
SB 2046. Requires disclosure in real estate transactions if meth production took place on the property.
SB 2087. Mandatory reporting of child abuse.
SB 2664. Amends the statute providing for parental consent to abortion to include intellectually disabled persons, and makes some other changes.
SB 2677. Adverse possessor must reimburse the other party for property and other taxes paid.
SB 2806. Changes and clarifies the rules for a landowner’s duty to a trespasser or licensee.
SB 2807 and SB 2708. How and when a landlord may dispose of abandoned personal property.
SB 2853. Allows both Circuit Court and County Court to adjudicate custody in paternity actions. Is this one more step toward the disappearance of chancery courts?
SB 2856. Court may restrict visitation of person convicted of violent crime.
Not included are bills that I considered to duplicate other senate bills or pending House bills.
SOME PENDING HOUSE BILLS YOU MIGHT WANT TO WATCH
March 6, 2012 § 5 Comments
Some bills pending in the Mississippi House of Representatives may affect your practice of law in chancery court. Here are some selected bills you might want to follow:
HB 2. Prohibits Mississippi courts from applying foreign law when the result would be a ” … violation of a right guaranteed by the Constitution of this state or of the United States, including, but not limited to, due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the Constitution of this state.”
HB 128. Clarifies the duty of a sex offender to notify any volunteer organization in which he or she is involved.
HB 144. The interest rate on judgments shall be ” … at a per annum rate equal to the discount rate at the Federal Reserve Bank in the Federal Reserve district in which the court is located, beginning from a date determined by the judge hearing the complaint to be fair but in no event before the filing of the complaint.”
HB 178. Uniform Foreign-Country Money Judgments Recognition Act.
HB 180. Allows postnuptial agreements. This bill is one to watch. It would change the ground rules for postnuptials, and could have a big impact on the way property settlement agreements are enforced in irreconcilable differences divorces that become contested.
HB 191. Enacts the Uniform Adult Guardianship and Protective Procedeedings Jurisdiction Act, which clarifies jurisdiction between states in guardianships and adult guardianships, much as the UCCJEA did for child custody.
HB 218. Requires random drug screening for all public school students in grades 6-12.
HB 248. Social Security numbers no longer required to record deeds.
HB 299. Unlawful to use DNA test results for any discriminatory purpose.
HB 300. Adds irreconcilable differences as a thirteenth ground to be granted ” … upon proof of any behavior, conduct, habit or demeanor engaged in or assumed by the offending party which substantially impairs the joint purposes of the marriage or which has rendered future cohabitation between the parties unlikely.”
HB 303. Increases the values of some exempt property.
HB 304. Adjusted gross income for child support over $50,000 would be presumptively subject to the guidelines, requiring findings to make it not so.
HB 313. Adds a third category of grandparents entitled to an award of grandparent visitation rights: whenever it is in the child’s best interest.
HB 320. Allows covenant in a deed not to sell to registered sex offenders.
HB 321. Purchaser at a tax sale can not be held civilly liable for environmental or other conditions on the property pre-existing the sale.
HB 354. Further restrictions on residence of registered sex offenders, contact with victims, and more.
HB 459. Creates a state-wide task force to study ways to reduce child abuse. No members of the judiciary are invited to participate.
HB 475. Amends MCA § 93-5-23 to provide that “The court shall order a noncustodial parent to pay at least one-half (1/2) of the reasonable cost of child care expenses in addition to child support obligations.” This is a major change.
HB 484. Judicial and DA pay raise, 2012 version. Please ask your legislator to vote in favor. There will be no tax increase to fund it; court costs will pay for it.
HB 491. Amends the definition of vulnerable persons to include persons under 10 years of age.
HB 550. Prohibits concealed weapons in any county-owned facility. If this passes, how will it affect the law enacted last year that specifically allowed carrying of firearms into court houses?
HB 562. In all civil actions, the losing plaintiff is liable for the defendant’s attorney’s fees and expenses. No mention of the losing defendant being liable for the plaintiff’s fees.
HB 668. Allows partisan judicial elections. A perennial bill.
HB 698. Similar to HB 2, but specifically references Sharia law.
HB 739. Court proceedings to be electronically recorded.
HB 817. Loser pays attorney’s fees in adverse possession cases.
HB 858. Increases from $50,000 to $100,000 adjusted gross income the presumption that the child support guidelines are inapplicable.
HB 886. Changes the rescission limit for acknowledgement of paternity to one year.
HB 949. Clarifies the duties of the guardian ad litem.
HB 963. An adopted person over the age of 18 may be provided the identity of the biological father.
HB 1110. Revises certain provisons pertaining to durable powers of attorney.
HB 1114. The Human Embryos Act and Ethical Treatment of Human Embryos Act.
HB 1172. Permits an injunction to prevent withholding of nutrition to a disabled person.
HB 1210. Seized drug money subject to child support obligations.
HB 1234. Judicial salaries would be tied to the southeastern average, and adjusted periodically accordingly.
HB 1254. Repeals adverse possession entirely.
HB 1258. Nonlegal custodian may authorize medical and educational expenditures upon presentation of an affidavit.
HB 1268. Makes several significant changes to the adoption statutes, including a provision that an attorney representing an adoption agency must complete training.
HB 1269. Makes it a crime to use a child’s Social Security number on a tax return without authorization. Maybe this will stop the chronically recurring problem of duelling claims of minors as dependents by ex-spouses.
HB 1272. Arbitration clauses between a seller and provider and a citizen of Mississippi are non-binding.
HB 1273. A contract must be printed in 10-point font or greater in order to be enforceable.
HB 1324. This is one at which you might want to take a close look. It changes notice representation rules in estates, guardianships and trusts, and defines what is necessary to bind interested persons and wards.
HB 1329. Clarifies the requirements that must be met for an engineer to qualify as an expert witness.
HB 1335 and HB 1337. Chancery court may order commitment of person who has a propensity to be a sex offender.
HB 1341. If the court requires electronic filing, a computer and scanner must be provided at the court house.
HB 1385. Authorizes Covenant Marriage, in which the parties contract that there will be no divorce between them except on the grounds of adultery or desertion.
HB 1387. Judicial candidate must be a qualified elector in his or her district.
HB 1394. Judicial pay is tied to the pay of the US Marshal.
HB 1421. Adds littoral landowners to the statute defining the rights and obligations of riparian landowners, and adds some restrictions.
HB 1481. Revises the requirements for informed consent to abortion.
Senate bills in another post.
Q & A WITH JUDGE BISE
March 1, 2012 § Leave a comment
Chancellor Carter Bise serves the 8th Chancery Court District (Hancock, Harrison and Stone Counties). Here is the Q&A that he shared with 12CCDM:
Q: Tell us some of your personal preferences that lawyers from outside your district need to know before they come before you.
A: In this district, we have what is referred to as “Motion Day” but there is no court reporter. Out of district attorneys need to check when setting a motion to make sure that if they want a record, that they set the matter when I have a regular docket.
Be familiar with the filing system and make sure that I have either the file or copies of the pertinent documents that I need for the case.
Q: What are the three attributes that you would consider to set the good lawyers apart from the bad ones?
A: Preparation; professionalism; courtesy.
Q: What is the main thing lawyers should know to avoid doing in your court room during a trial?
A: Histrionics. I try to maintain my courtroom as being purely professional. There is no jury to impress. Emotions are generally heightened for the parties/witnesses without any drama being added to the mix.
Q: What part of your job do you enjoy the most?
A: Uncontested adoptions; research.
Q: What part of your job do you enjoy the least?
A: Ex parte Rule 65 matters.
Q: What is your pet peeve as a judge?
A: When I ask for proposed findings and conclusions, and the attorney(s) do a poor job of providing such.
Q: Tell us a funny story about something that happened in your court room.
A: My first day on the bench, I needed assistance from a deputy clerk. I didn’t notice that there were two call buttons. I hit the one button of which I was aware, and within a few seconds, there were armed deputies at my doors.
Q: Cell phone ringing during a trial: death penalty, stern look, dismay, or no reaction?
A: I ask my bailiff to take the phone for safe-keeping.
Q: Lawyer tells you, “That’s not how we do it back in ________ County.” Discuss.
A: Occasionally I will ask how they do do that in Hazard County. It doesn’t offend me, as that is that articular attorney’s comfort zone. I can always learn.
Q: Share your innermost thoughts and feelings about MRCP 81.
A: Obviously, I don’t know anything about MRCP 81.
Q: Tell us your favorite quote.
A: I have ties:
— Favorite scriptural quotes: Isaiah 10.1: “Woe to those who make unjust laws, to those who issue oppressive decrees . . ..”
— And Micah 6:8: “What does the Lord require of you but to act justly, to love mercy, and to walk humbly with your God.”
— Proverbs 21:9 (also found at 25:24): “Better to live on a corner of the roof than share a house with a quarrelsome wife.” (My wife tells me that was obviously not written by any of Solomon’s partners, and that we should hear what they have to say.)
Q: Tell us your favorite court room movie.
A: Anatomy of a Murder.
PARTITION: BY SALE OR IN KIND?
February 29, 2012 § 5 Comments
Partition is the legal mechanism in Mississippi for dividing joint owners’ interests in real property when they can not otherwise agree to do so. The partition statute is MCA § 11-21-1, et seq.
It seems from where I sit that almost all partition cases come before the court with near-unanimous agreement among the parties that, if the property must be divided, sale will be the most advantageous method.
Even in contested cases, the prevailing view appears to be that the property should be divided by sale. That is not the law in Mississippi, however. Partition in kind is the favored method of division.
In the case of Fuller v. Chimento, 824 So.2d 599, 601-2 (Miss. 2002), the Mississippi Supreme Court laid out the law on the subject:
A partition in kind is the preferred method of partition of property under Mississippi law. Overstreet v. Overstreet, 692 So.2d 88, 91 (Miss.1997); Shaw v. Shaw, 603 So.2d 287, 290 (Miss.1992); Unknown Heirs at Law of Blair v. Blair, 601 So.2d 848, 850 (Miss.1992); Monaghan v. Wagner, 487 So.2d 815, 820 (Miss.1986); Bailey v. Vaughn, 375 So.2d 1054, 1057 (Miss.1979); Mathis v. Quick, 271 So.2d 924, 926 (Miss.1973); Dailey v. Houston, 246 Miss. 667, 151 So.2d 919, 926 (1963); Carter v. Ford, 241 Miss. 511, 130 So.2d 852, 854 (1961); Blake v. St. Catherine Gravel Co., 218 Miss. 713, 67 So.2d 712, 714 (1953); Hilbun v. Hilbun, 134 Miss. 235, 98 So. 593, 594 (1924); Shorter v. Lesser, 98 Miss. 706, 54 So. 155, 156 (1911); Smith v. Stansel, 93 Miss. 69, 46 So. 538, 539 (1908). See also 7 Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 60:99, at 56 (2001).
The propriety of a partition sale or partition in kind is determined on a case-by-case basis. Wight v. Ingram-Day Lumber Co., 195 Miss. 823, 17 So.2d 196, 197 (1944). To justify a partition by sale, the party seeking the sale must bring his case squarely within Miss. Code Ann. § 11-21-11 (Supp.2001) which states in pertinent part that
If, upon hearing, the court be of the opinion that a sale of the lands, or any part thereof, will better promote the interest of all parties than a partition in kind, or if the court be satisfied that an equal division cannot be made, it shall order a sale of the lands, or such part thereof as may be deemed proper, and a division of the proceeds among the cotenants according to their respective interests.
The use of the conjunction “or” in this statutory scheme provides for a two-prong inquiry into the propriety of a partition sale. A partition sale can be had if it will (1) “better promote the interest of all parties than a partition in kind” or (2) “if the court be satisfied that an equal division [of the land] cannot be made.” Id. See Blair, 601 So.2d at 850. See also Dantone v. Dantone, 205 Miss. 420, 38 So.2d 908, 911 (1949); Cox v. Kyle, 75 Miss. 667, 23 So. 518, 519 (1898). “Affirmative proof of at least one of these statutory requirements must affirmatively appear in the record in order for the court to decree a partition by sale.” Blair, 601 So.2d at 850. Furthermore, a court has no right to divest a cotenant landowner of title to his property by sale over his protest unless these conditions are fully met. Shorter, 54 So. at 156.
The joint owner seeking a partition sale has the burden of proving that the land is not susceptible of partition in kind and that a sale is the only feasible method of division. Overstreet, 692 So.2d at 90-91; Hogue v. Armstrong, 159 Miss. 875, 132 So. 446, 448 (1931).
It is permissible for the court to order partition by sale as to one parcel, and partition in kind as to another. The court’s action has to be supported by the requisite proof. I urge you to read the cases to get a feel for exactly what it is you need to prove.
When you have a partition suit and your client or the other party is objecting to a division in kind, you should expect your position to fail if you do not provide adequate evidence. If you want a sale, you must put on proof how sale will better promote the interests of the parties or that the property can not be equally divided in kind. The party wanting a sale has the burden of proof. If the party wanting a sale has met his burden of proof and you want division in kind, you must put on proof contradicting that of the party wanting a sale.
WRITING YOUR WAY TO A WIN
February 28, 2012 § 12 Comments
Imagine you have concluded a grinding trial in a hotly contested case. The chancellor turns to you and says, “You write the opinion. Stick to the facts in the record, recite the applicable law, analyze the factors, and rule in your client’s favor.” After pinching yourself to make sure you’re not dreaming, you’d jump at the chance, wouldn’t you?
There is actually a tool available for you to do that very thing, and, interestingly, few attorneys voluntarily avail themselves of it.
It’s called Proposed Findings of Fact and Conclusions of Law (PFFCL).
Typically when PFFCL are called for, it is at the behest of the judge, and more often than not they are called for in complex cases. But there is no good reason why a lawyer may not request it, and there is no good reason to limit its application to complex cases only. I can not think of a single type of chancery case where PFFCL would not work.
I have seen good PFFCL and bad. The good read like a trial court opinion that would be affirmed on appeal: findings of fact are supported by evidence in the record; the applicable law is set forth; factors are analyzed and conclusions reached; rulings are set out clearly and distictly, resolving every issue in dispute. The bad are, well, bad: facts are injected that never made it into the trial; the law is inapplicable or misapplied; factors are not addressed, or they are not properly addressed; the rulings have no basis in fact or law.
The traditional rule in Mississippi was that if the trial judge adopted your PFFCL verbatim, the appellate court would give the trial court ruling less deference or subject it to heightened scrutiny. In Rice Researchers v. Hiter, 512 So.2d 1259, 1266 (Miss. 1987), the court said:
In our view, the matter of whether a trial court may adopt verbatim, in whole or in part, the findings of fact and conclusions of law of a party is within the court’s sound discretion. See 54 A.L.R.3d 868, supra. Case complexities and crushing caseloads necessitate substantial reliance upon the submissions of trial counsel. Still, the judge is a judge and not a rubber stamp. He may not be able to afford the luxury of practicing his culinary art a la the Cordon Bleu. He should remember, however, that his oath precludes a McDonald’s approach to the judicial process. Where the trial judge wholly abdicates his judicial responsibilities—where, as it were, he abuses his discretion—we doubtless have authority to intervene. Here the Chancery Court quite properly requested that each party submit proposed findings of fact and conclusions of law. These submissions were considered at an adversary hearing. Thereafter, the Court considered RRI’s motion to amend findings. These steps, coupled with the fact that this case is quite complex (in spite of its simplicity), leave us convinced that the Chancery Court acted within its authority. As indicated above, however, our obligation of appellate deference to such findings is necessarily lessened.
The rule was tossed out only last year in Bluewater Logistics v. Williford, 55 So.3d 148, 157 (Miss. 2011), where the Mississippi Supreme Court ruled that it would continue to apply the “familiar abuse-of-discretion standard” to review of chancery court decisions, even where the chancellor adopted one party’s PFFCL verbatim.
My little opening vignette is unrealistic in one sense: the judge will always allow all parties to submit their own PFFCL. But the judge can pick and choose elements of all that were submitted, or simply adopt one, or use them as a template to do his own, or ignore them.
So there you have it. As long as the findings are supported by substantial evidence in the record and the law is properly applied, the trial court ruling will be upheld. And you can be the one to write it.
A FEW POINTERS ON EXPERTS
February 27, 2012 § 3 Comments
In a few trials lately, I’ve been surprised at the relatively relaxed approach lawyers have taken to identifying the expert witness in discovery, responding to the standard expert witness interrogatories, and even qualifying the expert to testify at trial. If you get lazy with how you present your expert you are inviting error into the record.
Here are a few reminders:
- If you are asked in discovery to identify your expert, UCCR 1.10 requires that you must do so not less than 60 days in advance of trial, or you will not be allowed to call the expert.
- If you are asked in discovery to provide the information set out in MRCP 26(b)(4)(A)(i) as to the subject matter, ths substance of facts and opinions, and a summary of the grounds for opinions, you must provide a substantial enough answer to give the other side a reasonable idea of what the expert’s opinions will be and what it is that the expert uses as a basis for the opinion. If you do not timely provide that information, the testimony may be excluded, or you may be severely limited by a skimpy answer. This is important, and may be crucial to your case. If you don’t have a system in place to remind you to update and supplement your discovery well in advance of trial, you’d better come up with one for your survival’s sake.
- At trial, you must qualify the witness. Here is the process, in a nutshell:
- Identify the witness.
- Establish the witness’s knowledge, skill, experience, training and/or education that qualifies her as an expert.
- Tender the witness as an expert to the court, which will allow the other side to voir dire the witness on qualifications. Remember that you must tender the witness as an expert in a specific field. For example: “I tender the witness as an expert in the field of child psychology and behavioral disorders,” or ” … in the field of surveying,” or ” … in the field of counseling with an emphasis on identifying and treating victims of child abuse and domestic violence,” etc., etc., etc.
- Address any objections to qualifications.
- Have the witness testify about the facts and data upon which the opinion will be based. MRE 702(1) requires that the opinion must be based on “sufficient facts or data.”
- Have the witness establish by testimony the principles and methods she used in arriving at her opinion, and she must establish their reliability.
- Have the witness testify how she applied those principles and methods in this particular case, and why the method she used does produce reliable results in her field.
- Develop the expert opinion.
- You can find some more detailed information about the process at this earlier post.
It’s your case. Try it as you like, but remember that no matter how satisfactory the outcome at the trial level, it’s only as good in the long run as the record you made.
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