Lump-Sum Alimony Without a Lump

March 7, 2017 § Leave a comment

In the divorce judgment between Herman and Lillie Scott, the chancellor equitably divided the marital estate, awarding Herman most of the unencumbered real property and one small debt, and awarding Lillie the encumbered real property and the bulk of the marital debt. There was a large disparity in income in favor of Lillie.

In his judgment the chancellor said:

“All of the Armstrong factors mentioned above which suggest the appropriateness of an award of alimony to Herman have been considered by the Court to entitle him to a modest award of lump sum alimony. The Court considers that the division of the marital estate outlined below incorporates an equitable division of the estate and an award of such lump sum alimony.”

The chancellor’s ruling, however, did not state an amount or otherwise describe of what the lump-sum award consisted.

Herman appealed, complaining that the chancellor erred in not awarding him periodic alimony. In Scott v. Scott, handed down December 13, 2016, the COA affirmed with an opinion by Judge Greenlee. It’s a routine opinion that you will not likely find very useful.

The special concurring opinion by Judge Lee, however, makes some good points about how a trial judge should address alimony:

¶17. I concur in result with the majority’s decision to affirm; however, I find that the chancellor’s decision to categorize a portion of the equitable division of the marital assets as lump-sum alimony was incorrect.

¶18. First, the chancellor did not provide for a specific amount of lump-sum alimony. Whether lump-sum alimony is “used either as alimony or as part of property division,” it must be a “fixed and irrevocable sum.” Beezley v. Beezley, 917 So. 2d 803, 806 (¶10) (Miss. Ct. App. 2005) (citing Wray v. Wray, 394 So. 2d 1341, 1345 (Miss. 1981)). The chancellor did not designate a specific amount of lump-sum alimony; rather, he divided the marital assets, giving Herman the majority of the unencumbered assets. The chancellor simply stated that “the division of the marital estate . . . incorporates an equitable division of the estate and an award of such lump sum alimony.”

¶19. Second, the nature of the award is, in reality, equitable distribution. This Court in East v. East, 775 So. 2d 741, 745 (¶9) (Miss. Ct. App. 2000), determined that the chancellor incorrectly labeled an equity transfer from the husband to the wife as lump-sum alimony, when, “in effect, it is a portion of the . . . equitable distribution of the estate.” We affirmed the transfer but corrected the labeling error. Id. Here, I would affirm the equitable distribution award but decline to accept the chancellor’s decision to label any amount thereof as lump-sum alimony.

Judge Lee’s opinion was joined by Judge Wilson and by Judge Fair, who is the sole former chancellor on the court.

Making the Cap Fit

March 6, 2017 § Leave a comment

Chancery courts can award punitive damages. It doesn’t happen every day, and it doesn’t happen often, but it does happen. When they do award punitive damages, chancery courts are as bound as other courts by MCA 11-1-65(1)(a), which imposes a cap of 2% of the defendant’s net worth for defendants with net worth of $50 million or less.

The case of Moore v. McDonald, handed down February 7, 2017, the appellants argued that the trial court erred in assessing punitive damages in excess of their claimed net worth. We’ve already posted about this case here, here, and here, because there’s a lot to talk about in it. It’s the property-line dispute in which the Moores had violated a previously affirmed judgment setting the parties’ boundary line. The Moores appealed, and Judge Wilson’s opinion will fill you in on the applicable facts:

¶8. The Moores do not dispute that their conduct was malicious such that an award of punitive damages was appropriate. Miss. Code Ann. § 11-1-65(1)(a). Their only objection is that the punitive award exceeds two percent of their net worth in violation of Mississippi Code Annotated section 11-1-65(3). See id. § 11-1-65(3)(a)(vi) (“[N]o award of punitive damages shall exceed . . . [t]wo percent (2%) of the defendant’s net worth for a defendant with a net worth of Fifty Million Dollars ($50,000,000.00) or less.”). On appeal, they argue that the chancellor was required to accept at face value their own representations of their net worth and cap punitive damages at $1,268. However, in the court below, the Moores failed to raise the issue of the statutory cap on punitive damages. The Moores also failed to introduce any reliable evidence of their net worth. Accordingly, they were not entitled to the benefit of the statutory cap on punitive damages.

¶9. On March 20, 2015, at the conclusion of the hearing on the McDonalds’ contempt petition, the chancellor found that an award of $10,000 in punitive damages would be appropriate. After that hearing, the Moores, who had been proceeding pro se, decided to hire a lawyer. At a hearing on May 8, 2015, the Moores’ recently retained counsel argued that the burden was on the McDonalds to prove the Moores’ net worth before the court could award any amount of punitive damages. Indeed, counsel asserted that “[t]he case law is clear” on this point. At the Moores’ request, the chancellor then continued the case to July 7, 2015, for a hearing on attorneys’ fees and the Moores’ net worth for purposes of assessing punitive damages.

¶10. At the July 7 hearing, counsel for the Moores acknowledged that his argument at the prior hearing was mistaken and that proof of net worth is not necessary to support an award of punitive damages. Counsel then argued that either side could offer such evidence, which the court should then consider in assessing punitive damages. However, in all of the proceedings in the chancery court, the Moores never—at any hearing or in any pleading—mentioned the statutory cap on punitive damages or argued that punitive damages must be capped at two percent of their net worth or any other number. “It is a long-established rule in this state that a question not raised in the trial court will not be considered on appeal.” Adams v. Bd. of Sup’rs of Union Cty., 177 Miss. 403, 170 So. 684, 685 (1936). “Moreover, it is not sufficient to simply mention or discuss an issue at a hearing. The rule is that a ‘trial judge cannot be put in error on a matter which was never presented to him for decision.’” City of Hattiesburg v. Precision Constr. LLC, 192 So. 3d 1089, 1093 (¶18) (Miss. Ct. App. 2016) (quoting Methodist Hosps. of Memphis v. Guardianship of Marsh, 518 So. 2d 1227, 1228 (Miss. 1988)). Accordingly, the Moores waived any argument that the chancellor should have applied the statutory cap.

¶11. Procedural bar notwithstanding, the Moores also failed to present evidence sufficient to require the chancellor to apply the cap. The only evidence that the Moores introduced of their net worth was a Uniform Chancery Court Rule 8.05 financial statement that they apparently signed on the morning of the hearing. The Moores’ 8.05 statement estimated the value of their home and land as $85,000 with a $22,000 mortgage balance; claimed household goods, furniture, and clothing worth $400; disclosed checking accounts with a combined balance of $325 or less; and listed two vehicles—one worth $5,600 or less with a $5,600 loan, and the other worth $1,500 with an $1,800 loan. The Moores gave a total value of their assets of $0, although the assets listed totaled $63,425.

The court went on to describe: Carolyn Moore’s evasive answers to questions about $17,000 cash on hand and her admission that their 8.05 was inaccurate; the evasive testimony of her husband about false and misleading bankruptcy filings; their failure to offer tax returns or a copy of a loan application they had submitted to a local blank shortly before trial; and the Moores’ smirking and mocking demeanor at trial. The COA concluded:

¶15. The chancellor did not err by reaffirming her $10,000 punitive award. “[P]roof of net worth is not required to award punitive damages. . . . [F]or a defendant to mitigate potential punitive damages, it is his responsibility to present proof of his net worth and financial condition.” Woodkrest Custom Homes Inc. v. Cooper, 108 So. 3d 460, 469 (¶¶41-42) (Miss. Ct. App. 2013) (citing C&C Trucking Co. v. Smith, 612 So. 2d 1092, 1102, 1105 (Miss. 1992)); accord Coleman & Coleman Enters., 106 So. 3d at 320 (¶33). Furthermore, the “evidence must be sufficient to enable the trial court to determine the defendant’s current net worth, according to generally accepted accounting principles.” In re Miss. Medicaid Pharm. Average Wholesale Price Litig. (“AWP Litig.”), 190 So. 3d 829, 846 (¶40) (Miss. 2015) (opinion of Chandler, J., joined by Kitchens and King, JJ., affirming). The Moores failed to meet their burden. They presented only one self-serving and admittedly inaccurate document of their own creation. Clearly, they did not present “evidence . . . sufficient to enable the [chancellor] to determine [their] current net worth, according to generally accepted accounting principles.” Id.

Not much more needs to be said. If you want to preserve a point for appeal, it must have been presented to the chancellor in trial or pre-trial in a form suitable for the judge to rule on it, or you have waived it. And the burden is on you to prove net worth so as to apply the punitive damages cap.

 

“Quote Unquote”

March 3, 2017 § Leave a comment

“It is better to be poor and walk in integrity than to be stupid and speak lies.” – Proverbs 19:1

“Never attribute to malice that which is adequately explained by stupidity.” – Robert J. Hanlon

“Stupidity is a more dangerous enemy of the good than malice. One may protest against evil; it can be exposed and, if need be, prevented by the use of force. Evil always carries within itself the germ of its own subversion in that it leaves in human beings a sense of unease. Against stupidity we are defenseless. Neither protests nor the use of force accomplish anything here; reason falls on deaf ears; facts that contradict one’s prejudgment simply need not be believed – in such moments the stupid person even becomes critical. And when facts are irrefutable they are just pushed aside as inconsequential, as incidental. In all this the stupid person, in contrast to the malicious one, is utterly self-satisfied and, being easily irritated, becomes dangerous by going on the attack. For that reason, greater caution is called for when dealing with a stupid person than with a malicious one. Never again will we try to persuade the stupid person with reasons, for it is senseless and dangerous.” – Dietrich Bonhoeffer

The Laws of Stupidity

img_6983

Attorney’s Fees in a Related Case

March 1, 2017 § 1 Comment

In the midst of their long-running property-line feud with the McDonalds, about which we have previously posted here and here, Kenneth and Carolyn Moore filed for bankruptcy, making it necessary for the McDonalds to file adversary proceedings in bankruptcy court. After the case returned to chancery from its bankruptcy detour, the case was heard on the merits and the chancellor ruled against the Moores, assessing them $13,336.55 in actual damages, $10,000 in punitive damages, expert expenses of $1,700, and attorney’s fees of more than $65,000. The attorney’s fee award included legal work by the McDonalds’ attorneys in the bankruptcy case.

The Moores appealed, contending that it was error for the chancellor to assess bankruptcy attorney’s fees against them in the chancery contempt proceeding. The COA affirmed in Moore v. McDonald, et al., handed down February 7, 2017. Judge Wilson wrote the opinion on the point:

¶4. On May 16, 2014, the McDonalds filed a motion for summary judgment supported by exhibits and affidavits. Eleven days later, the Moores filed for bankruptcy. As a result, all proceedings in the chancery court were stayed and the impending trial was cancelled. Counsel for the McDonalds entered an appearance in the bankruptcy case and filed an adversary complaint to preserve the McDonalds’ claim against the Moores. See 11 U.S.C. § 523(a)(6) (2012) (providing that a debt for “willful and malicious injury” to the person or property of another is not dischargeable in bankruptcy). The McDonalds’ counsel also attended the meeting of creditors and filed a motion for sanctions based on the Moores’ alleged misrepresentations in the bankruptcy case. In response to hearing notices in the McDonalds’ adversary proceeding, the Moores appeared before the bankruptcy court and asked that their bankruptcy petition be dismissed. The court granted their request, which permitted the chancery case to proceed.

¶5. The chancellor found “that the Moores intentionally stalled [the chancery] action by filing [a petition for] bankruptcy which was dismissed after considerable time and effort by [counsel for the McDonalds].” The chancellor therefore found that “attorney time and expenses expended . . . in the Moore bankruptcy case were properly incurred on behalf of the McDonalds and should be awarded as part of the fees and costs awarded in this case.” On appeal, the Moores do not challenge the chancellor’s factual basis for awarding attorneys’ fees incurred in connection with the bankruptcy case. The Moores’ only argument is that “[t]he Pearl River County Chancery Court was not the appropriate forum to request attorneys’ fees for work related to the bankruptcy.” They argue that approximately $3,975 in fees that the McDonalds incurred related to the bankruptcy proceeding could only be recovered in the bankruptcy court.

¶6. The Moores’ argument is without merit. The Moores do not dispute that the McDonalds were entitled to an award of attorneys’ fees, and they cite no authority for their argument that such fees are not recoverable simply because they were incurred in a related bankruptcy proceeding. Although not directly on point, our Supreme Court recently held that a state court can award fees incurred in federal court in connection with a motion to remand the case to state court. See O.D. v. Dillard, 177 So. 3d 175, 189 (¶44) (Miss. 2015). In addition, other courts have held that a state court may award attorneys’ fees incurred in connection with a related bankruptcy proceeding. See Chinese Yellow Pages Co. v. Chinese Overseas Mktg. Serv. Corp., 170 Cal. App. 4th 868, 882 (Cal. Ct. App. 2009); Gill Sav. Ass’n v. Chair King Inc., 797 S.W.2d 31, 32 (Tex. 1990). Accordingly, we hold that the chancellor did not err by awarding attorneys’ fees related to the bankruptcy case.

In the absence of other Mississippi authority on point, then, the law in Mississippi is as stated above until the MSSC rules otherwise. On the particular facts in this case, I can’t disagree. The judge ruled that the detour “intentionally stalled” the chancery proceeding, so its connection with and direct relation to the chancery case is pretty clear. Still, I would hope we can have some parameters on how closely connected and related that other litigation needs to be to justify awarding attorney’s fees in another case.

Waiving Discovery Problems

February 28, 2017 § Leave a comment

It happens from time to time, especially in cases that seem to have dragged around for ‘way too long, that the parties appear on the trial date assigned and one attorney launches into a tale of woe about how the other side never answered their interrogatories and requests for production, and now we need a continuance to get those answers or records, or whatever. My solution is below, but what in the world is one supposed to do when confronted by such a woeful situation?

That was the question before the chancellor In Bruenderman v. Bruenderman, a COA case decided January 10, 2017.

In that case, Anna Bruenderman was awarded custody of the parties’ minor child. Ty Bruenderman appealed, arguing that, if only he had been able to get Anna’s medical records into evidence, he would have prevailed, and it was error for the trial judge not to have ordered their production.

The COA affirmed. Judge Greenlee wrote for the court:

¶14. Ty asserts he should have been granted access to Anna’s psychiatric records because they are not privileged under Mississippi Rule of Evidence 503.

¶15. Rule 503 states that there is a privilege between patient and psychotherapist; however, Rule 503(d)(4) states that the privilege does not apply to communications—including records—regarding a party’s physical, mental, or emotional health or drug or alcohol condition when relevant to child custody, visitation, adoption, or termination of parental rights. The comments to the rule state that some factors the court should consider when evaluating such evidence under Rule 503 include whether: (1) the treatment was recent enough to be relevant; (2) substantive independent evidence of serious impairment exists; (3) sufficient evidence is unavailable elsewhere; (4) court-ordered evaluations are an inadequate substitute; and (5) given the severity of the alleged disorder, communications made in the course of treatment are likely to be relevant. M.R.E. 503 cmt.

¶16. Here, Ty subpoenaed Anna’s psychiatrist for a deposition one week prior to trial and did not request a continuance to allow him time to attempt to obtain those records. Though the chancery court ruled that Ty could pursue Anna’s records, he did not, nor did Ty ever move to compel the production of those records. It is well established that the burden is on the movant to request a continuance to pursue discovery matters, and failure to do so constitutes waiver. Ford Motor Co. v. Tennin, 960 So. 2d 379, 394-95 (¶54) (Miss. 2007); see also generally URCCC 4.04; M.R.C.P. 37.

[Note: the reference to URCCC is to the circuit and county court rules. The applicable Uniform Chancery Court Rule (UCCR) is 1.10]

¶17. The chancellor noted that there was no testimony of any major mental or physical problems of either party nor any evidence showing that discovery of any of Anna’s psychiatric records would be relevant to the chancery court’s custody analysis. The chancellor found that, based on what was before him, Anna’s counseling had more to do with the divorce than any underlying issue affecting her ability to properly care for her and Ty’s child. Thus, we find this issue is without merit.

So, the deal is that, yes, you can obtain the records under MRE 503, but unless someone voluntarily hands them to you, which is rare in this HIPAA era, you will have to bring the matter before the judge and show: the records’ recency and relevance; that there is substantive independent evidence of the condition; unavailability of this evidence through another source; court-ordered evaluations will not do the job; and communications between doctor and patient are likely to be relevant in the circumstances. AND you must do all that timely, or you have waived your right to complain about it.

In other words, as with all things discovery, you must timely file to compel, and timely follow up if necessary, or you will have waived the issue.

There are seldom last-minute motions to continue for discovery problems in my court because you can not get a date for trial on the merits unless and until you certify in blood that all discovery issues have been resolved, all discovery is completed, and the matter is ready for trial (Okay, I’m exaggerating about the blood part, but not by much).

The chancellor mus be fair, but that means fair to both sides. When you show up unprepared to try your case, expecting that the judge will congenially grant your request for a continuance, you are taking a big chance. If the motion is even in the slightest unfair to the other side, you will be overruled and told to tee it up.

The Cost of Making a Bad Impression

February 27, 2017 § 2 Comments

Kenneth and Carolyn Moore were engaged for years in a boundary dispute with Roy and Donna McDonald and Ruth Belton (collectively the McDonalds). In 2010, the COA unanimously affirmed a chancellor’s ruling establishing the boundary line between them in Moore v. McDonald, 47 So.3d 1186 (Miss. App. 2010). The trial court’s judgment enjoined the Moores from disturbing the other parties’ peaceful enjoyment of their property.

The Moores apparently did not take the court rulings well. In 2013, they:

  • used a tractor and auger to install fence posts in the McDonalds’ driveway, rendering it impassable, and forcing them to install a new gate to access their land via a different route;
  • tore down the McDonalds’ fence;
  • uprooted or cut down numerous large crepe myrtle trees on the McDonalds’ property;
  • littered the mcDonalds’ property with debris; and
  • threatened, intimidated, and bullied Donna.

The McDonalds filed a contempt action. Following a hearing, the chancellor found the Moores in contempt and awarded compensatory damages, attorney’s fees and expenses, and punitive damages in the amount of $10,000.

The COA affirmed in Moore v. McDonald, et al., decided February 7, 2017. I posted about this case here previously.

What I found interesting was the way that the Moores behaved at trial, and the record of their other conduct, that most assuredly had an adverse impact on the judge’s view of them.

When the issue of their net worth was before the court, it became clear that the Moores had failed to disclose some $17,000 in cash on hand in their 8.05 financial statement. Mrs. Moore became evasive about it to the extent that even the judge became involved (at ¶12):

Q. Where is the money, Ms. Moore?

A. Well, I’ve got the money. Don’t worry about that.

THE COURT: Well, you do have to tell — I’m worried about that.
Where is the $17,000?

MS. MOORE: My daughter has got it if you want to know the
truth about it.

Q. Do you not have any control about how that money is spent?

A. Well, it’s not spent yet so —

Q. Okay. But you didn’t list that on your 8.05, did you?

A. No, I did not list it.

Q. So, in fact, it’s not correct that this financial declaration reflects
everything that you have got?

A. Well I guess not.

When questioned about a bankruptcy filing that had derailed the case for months and forced the McDonalds to incur more attorney’s fees, Mr. Moore either refused to answer or claimed he had forgotten about omissions and inaccurate valuations.

The chancellor recorded her observations of the Moores’ demeanor and credibility, and it does not paint a pretty picture (at ¶14):

“The Court has reviewed the financial statement of the Moores, . . . [a]nd finds that it is by their own admission inaccurate. $17,000 that was borrowed and placed with their daughter is not included on the financial statement, and that really puts the whole financial statement into question, in addition to the whole line of questioning . . . of Mr. Moore and his dishonesty with the Bankruptcy Court.

The Court has no idea what the value of their property is. I don’t believe that the value is what they say it is. I don’t believe them period. I wish the Appellate Court — because I’m confident that this will be appealed — could sit in this chair and see the snickering periodically of the Moores, both. I remember making a note of that in the initial trial, as well as I have just noted for myself smug looks or at one point, I saw them — Mr. and Ms. Moore – laughing between the two of them while the Court was going on.”

If you think that kind of bad behavior escapes the attention of the chancellor, or that it will have no real impact, you need to think again. It does, and it can have a disastrous impact, as it did in this case.

In a case in my court one of the key witnesses was the ex-husband of one of the parties. His bias against her was emphatic and unmistakable. While he took his oath to testify, he glared at her hatefully. He referred to her by using her several former married surnames (e.g., Mrs. Smith-Jones-Johnson-Davis, etc.) until I cautioned him not to continue doing so. His tone about her was sarcastic and included cutting remarks about her. Standing on its own, I found his testimony incredible, but also it was contradicted in material parts by the credible testimony of one of the woman’s children. The ex-husband’s demeanor played a large role in my decision to ignore his testimony entirely.

This is a major reason why you should spend some quality time with your parties and key witnesses in advance of trial. You need to impress on them that the chancellor is judge and jury. The chancellor has immense power over the case. Chancellors are like everyone else when it comes to assessing someone’s credibility. Sarcasm, evasiveness, argumentativeness, bias; all will undercut your witness’s credibility, possibly fatally.

Reprise: Less-than-Diligent Inquiry

February 24, 2017 § 1 Comment

Reprise replays posts from the past that you may find useful today.

DEVIOUS SEARCH AND INQUIRY

July 26, 2012 § 2 Comments

It avails one naught to get a judgment when all the proper parties have not been given notice and an opportunity to defend.

In 2007, Lottie Woods brought an action for adverse possession of family property. She claimed in her complaint that she was the sole and only heir of her uncle Cornelius, and she published process for him, his unknown heirs, and any other person claiming an interest in the property.

It should have been a clue of problems to come when Corenelius, Jr. showed up at the appointed time and produced a birth certificate showing he was Cornelius’s son. But it all seemed to work out because Lottie and Jr. settled the dispute between them, dividing the property.

The only problem with all of the foregoing is that Lottie neglected to make it known that she had four other siblings who could claim an interest in the property. In other words, as Jr.’s appearance foretold, she could hardly be said to be the “sole and only” heir. Her brother Samson and the other siblings filed an objection and separate litigation to correct the matter.

The COA case of Byrd v. Woods, et al., decided June 19, 2012, is where this particular drama was played out. The case goes off on several other points of law, but the one that I want to focus on here is what happens when a party does not comply with MRCP 4’s requirement that there be diligent search and inquiry before process by publication. Here is what Judge Fair had to say about it, commencing at ¶14:

Mississippi Rule of Civil Procedure 4(c)(4) states that if a defendant cannot be found after diligent search and inquiry, shown by sworn complaint or filed affidavit, he may be made a party by publication. In the 2007 adverse possession action, Lottie filed an affidavit of diligent search and inquiry to obtain a publication summons. However, she must have known that her brother (and her other siblings) would have an interest in the “family land” she sought to adversely possess. They were both potential heirs of Cornelius and believed the property belonged to their family. Further, Lottie and Samson were not estranged, so it is unlikely she could not find him after diligent search and inquiry. But Lottie did not serve Samson personally, nor did she mention or serve her other three siblings.

“The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (¶16) (Miss. Ct. App. 2002). In Caldwell v. Caldwell, 533 So. 2d 413 (Miss. 1988), the supreme court stated “if at any stage of the proceedings it appears that . . . the affidavit was not made in good faith after diligent inquiry, under the facts of the particular case, the process should be quashed by the court . . . .” Id. at 416.

Therefore, Lottie did not obtain service of process on Samson by publication because her affidavit was not made in good faith after diligent inquiry. Neither he nor Lottie’s other siblings are bound by the 2007 judgment.

The lesson here is that when your client avers that he or she has made “diligent inquiry,” or, using the traditional phrase still used by many lawyers, “diligent search and inquiry,” you had better make darned sure that there was indeed a search and inquiry, and that it was in fact diligent. It’s a subject we’ve talked about here before.

Expect the chancellor to inquire behind the affidavit before granting any relief. I always do, and I do not accept a shrug of the shoulders or a couple of half-hearted attempts. In one case before me the woman claimed that the last she knew of her husband he was hanging out at a bar in Wayne County. I asked whether she had gone there to inquire about him. When she said “no,” I ordered her to go to the bar and ask the bartender and some of the habitués whether they knew his whereabouts. Wonder of wonders, she found him and he was personally served.

In the case of Lottie Woods, based solely on what I read in the COA opinion, I would have found that her claim in a pleading intended to influence a judge that she was the sole and only heir when she had living siblings in the area and Cornelius’s son was still alive to have been a fraud on the court. As it was, her “oversight” has cost all of these parties more than five years of wasted time in litigation, and they are returning to the starting line, probably poorer for the trial and appeal attorney fees, and surely not thrilled with the legal process. If only Lottie had sworn truthfully …

A few Comments about Comments

February 22, 2017 § 2 Comments

From time to time I have to reiterate a few points about comments …

  • I welcome comments by lawyers and judges. I enjoy the input, even when it disagrees with or corrects what I post. I’m not infallible, and my point of view is not the only way to see things, so have at it. Add your own insight.
  • Laypersons are free to read this blog, but I limit comments to lawyers and judges. That’s my policy, and I’m sticking to it. Many comments I get from laypeople ask for legal advice, or what to do because their lawyer is not doing a good job, or the judge is against them, or what if this and that. There are lots of blogs and listservs that perform that function. This is not one of them. Mississippi law prohibits me from giving legal advice.
  • As always, all comments are moderated. If yours includes criticism of a sitting judge in a case, don’t expect it to be published.
  • When I use the term “lawyer” here, I mean lawyers and their staffs.

How Many Attorneys Does it Take to …

February 21, 2017 § 3 Comments

… Okay, I’ll spare us all the rest of the joke. But the question does arise from time to time as to how many attorneys can be compensated in an award of attorney’s fees. The oft-heard formula is ” … a fee to compensate one competent attorney …” or words to that effect.

That was one issue in the recent case of Moore v. McDonald, et al., decided by the COA on February 7, 2017. The appellants argued that the chancellor erred by granting attorney’s fees for more than one attorney. The COA rejected the argument in an opinion by Judge Wilson:

¶7. The Moores next assert that the chancellor “erred by assessing attorneys’ fees . . . that cover the costs of more than one attorney.” The Moores argue that Mississippi Supreme Court precedent “clearly sets forth that . . . only a sufficient fee to secure one competent attorney may be granted.” In fact, however, our Supreme Court has rejected this very argument. Coleman & Coleman Enters. Inc. v. Waller Funeral Home, 106 So. 3d 309, 318 (¶27) (Miss. 2012) (“We do not interpret [McKee v. McKee, 418 So. 2d 764 (Miss. 1982),] as having held that attorneys’ fees in Mississippi are limited to the fees of only one lawyer.”); see also Upchurch Plumbing Inc.v. Greenwood Utils. Comm’n, 964 So. 2d 1100, 1116 (¶40) (Miss. 2007) (affirming an award of attorneys’ fees for the work of two attorneys); Mabus v. Mabus, 910 So. 2d 486, 490 (¶13) (Miss. 2005) (same). The Moores do not identify any duplicative time entries or excessive charges. They make only a broad argument that fees for the work of more than one attorney are not recoverable. This argument is contrary to Supreme Court precedent and thus without merit.

You may well question how the above squares with the express language of McKee, wherein the Supreme Court stated, “In determining an appropriate amount of attorneys fees, a sum sufficient to secure one competent attorney is the criterion by which we are directed. Rees v. Rees, 188 Miss. 256, 194 So. 750 (1940).” Well, if you read the Mabus case, cited above, you will see that the MSSC said that the “one competent attorney” language is more about non-duplication than about the number of attorneys involved to produce the result.

You are going to see more of this Moore case in some future posts. Not only is the fact situation interesting, but so are the observations of the chancellor and some of the other holdings.

February 20, 2017 § Leave a comment

State Holiday

Courthouse closed