What can be Appealed?

February 4, 2020 § 1 Comment

Can you appeal from a temporary order? What about a consent decree or judgment?

MCA § 11-51-3 says in its entirety:

“An appeal may be taken to the Supreme Court from any final judgment of a circuit or chancery court in a civil case, not being a judgment by default, by any of the parties or legal representatives of such parties; and in no case shall such appeal be held to vacate the judgment or decree.”

So the judgment must be final, disposing of all issues as to all parties. MRCP 54. If the order or judgment is final as to fewer than all the issues or parties, then it is not a final, appealable judgment unless the judge certifies that there is no just reason for delay and directs entry of a judgment.

Thus, there is no appeal from a temporary order. Michael v. Michael, 650 So. 2d 469, 471 (Miss. 1995).

A decree entered by consent of the parties is not appealable. Legg v. Legg, 251 Miss. 12, 168 So. 2d 58, 60 (1964).

An order denying a motion to recuse is appealable even though not a final judgment as to all claims or parties. That’s because it is authorized by MRAP 48B.

An order denying or granting a probated claim is appealable despite the fact that the estate remains open. Estate of Philyaw: Braxton v. Johnson, 514 So.2d 1232, 1236-7 (Miss. 1987).

You can try to appeal from a less-than-final judgment or an interlocutory ruling by petitioning the MSSC for permission to file an interlocutory appeal per MRAP 5. You have to convince the court that “a substantial basis exists for a difference of opinion on a question of law” that appellate resolution may advance termination of the suit and save the parties money, or protect a party from irreparable injury, or “resolve an issue of general importance in the administration of justice.”


If You Want it You Have to Ask for It

February 3, 2020 § 2 Comments

Back in the day, when I was a mere tadpole of a lawyer, chancellors had broad powers to effect equitable relief. At the end of every pleading were words to the effect: “And she prays for such other and general relief as this honorable court deems mete and right in the premises,” or simply “And she prays for general relief.” Those magic words often evoked unpled-for remedies fashioned by the judge to meet and resolve the problem presented by the evidence. Lawyers (called Solicitors back in those smoke-filled days of yore) foresaw that and were not surprised or blindsided by it. It was the way chancery court business was done.

The MRCP came along in 1982 and made chancery much more like law courts, and the fact that fewer and fewer appellate judges have much chancery experience has accelerated the process. General relief is now no more than a will-o-the-wisp.

That’s the hard lesson that Cheryl Burrell learned in the chancellor’s denial of alimony and use of the former marital residence in her divorce from her adulterous husband, Geoffrey. The lesson was driven home by the COA when it affirmed in Burrell v. Burrell, decided January 7, 2020. Judge Westbrooks wrote the opinion:

¶15. Geoffrey argues that because Cheryl never requested equal or disproportionate distribution of the marital estate, permanent alimony, or spousal support in her pleadings, the court could not grant the relief. Geoffrey, however, did plead for an equitable distribution of the marital estate, which the court granted. Geoffrey further argues that the court did not err in refusing to perform an Armstrong or Cheatham analysis because neither was necessary in light of Cheryl’s non-inclusive pleading.

¶16. In Moore v. Moore, 363 So. 2d 286, 287 (Miss. 1978), the Mississippi Supreme Court rejected Mrs. Moore’s argument for reversal of a chancellor’s decree that did not include an award for permanent alimony. The Supreme Court noted that although Mrs. Moore had been
granted temporary alimony, she had “made no averment pertaining to or prayer for permanent or temporary alimony.” Id. Citing Horton v. Horton, 269 So. 2d 347 (Miss. 1972), the Mississippi Supreme Court held that “the chancellor has considerable discretion in allowing or not allowing permanent alimony, and his beneficence in granting her temporary alimony not sought in her pleadings cannot be reversible error as to her.” Moore, 363 So. 2d at 287.

¶17. Like Mrs. Moore, the record before us does not reflect any request by Cheryl, ore tenus or written, for permanent alimony or spousal support. Even Cheryl’s own pleading for reconsideration does not list alimony or spousal support as one of the issues at trial. Notwithstanding the omission, the court did grant Cheryl temporary spousal support in its temporary order. However, as its name suggests, the court’s grant of spousal support was temporary and does not entitle Cheryl to continued support.

¶18. Cheryl never requested leave to amend her complaint to include a request for alimony or spousal support. No such leave was granted, and no amendment was ever made. Thus, Cheryl was not entitled to permanent alimony or spousal support. Accordingly, we find no error with the chancery court’s decision to deny reconsideration of the award to Cheryl.

A few points:

  • If you don’t ask for it in your pleadings, you won’t get it unless you put on evidence to support that relief at trial without a sustained objection from the other side, and then follow up with a R15 motion to conform the pleadings to the proof.
  • By asking for equitable distribution himself, Geoffrey opened that door to Cheryl because when the chancellor awards Geoffrey his portion something has to be done with what is left.
  • So, what would happen if Geoffrey had asked for an award of alimony? Would that give Cheryl a vehicle to ride toward alimony for herself? No, alimony is a zero-sum game. The prayer for alimony is for the sole benefit of the pleader.
  • Although Cheryl argued that she moved ore tenus at trial for alimony, there was nothing in the record to indicate that she had. Always be aware that the most important thing you can do at trial is to make a record. I have tried cases that I knew had no chance of success with a particular chancellor, but carefully loaded up my record to win on appeal.
  • If you’re new at this, I urge you to create or steal some form divorce pleadings that ask for every conceivable form of relief: divorce; equitable distribution; alimony, lump-sum, periodic, and rehabilitative; custody; and so on. You can add or delete as necessary, but you will have everything you need as a starting point. Sometimes your client will say, “But I don’t want alimony; it will only make him mad.” You will answer, “If it’s in there we can always not pursue it or even take it out later, but if it’s not in there and you decide at trial that you want it, it may become impossible, so we’d better leave it in. Besides, we’re not in this to make him happy. We’re trying to see that you come through it okay.”

Reprise: The Lawyer as Puppeteer

January 31, 2020 § Leave a comment

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


June 20, 2012 § Leave a comment

Atty 1:   Can you tell the court why you did not call the police right away when you say that he hit you and knocked you down?

Atty 2:   Objection. The witness could not have called because her husband had broken the telephone before he hit her.

That, my friends, is a speaking objection. It’s a pernicious, baleful, noxious thing, odious to judges. So what exactly is the big problem with speaking objections? Let’s look at what predictably happens next in that trial we started above …

Judge:   Objection is overruled.

Atty 1:   Judge says you can answer my question.

Witness:   Well, I could not call because my husband had broken the telephone before he hit me.

How could one expect a different answer after her attorney told her what to say?

One of the most important functions of a chancellor is to weigh the credibility of witnesses and to determine the weight to give to their testimony. I think most chancery judges, if not all, would assign that witness’s testimony on that point almost no weight at all because it was not her testimony.

I have had to caution counsel not to make speaking objections and to limit any comment on objections to legal bases (e.g., hearsay, irrelevant, compound question, etc.).

Speaking objections actually do your case more harm than good.

Not Newly Discovered Evidence

January 29, 2020 § Leave a comment

When the chancellor awarded Amanda Prestwood rehabilitative alimony, his opinion pointed out that the record was bereft of evidence of daycare expenses, an itemization of debt she claimed she owed to her father, credit card debt, and student loan debt. Believing the award inadequate, Amanda filed a R59 motion to alter or amend the judgment, or, in the alternative, for a new trial. She asked the court to reweigh the evidence at trial, along with additional evidence attached to the motion, which included: a daycare cost sheet; a lease agreement; a promissory note; credit card statements; and her student loan debts. The court overruled the motion, and Amanda appealed.

The COA affirmed in Prestwood v. Prestwood, decided December 10, 2019. The opinion by Judge McDonald, is a routine analysis of rehabilitative alimony. You can read it for yourself.

The point I want to make here is that you should not use R59’s new trial provision to try to get before the court evidence that you did not, for whatever reason, at the trial. R59(a) specifies that the court in a non-jury case may grant a new trial “for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.” Griffith says that, after completion of the term, the court could only grant a rehearing for newly discovered evidence or “supervening facts.” Newly-discovered is self-explanatory. Supervening facts would include factual circumstances that have changed since entry of the judgment which, had they been known to or foreseen by the court, would have changed the court’s ruling. Amanda’s post-trial proof fits neither category. Unless the opinion neglected to mention that all of her attachments to the motion were newly-discovered, she could have presented every bit of it at trial. Here is what Justice Griffith said about it:

It is the earnest desire of courts, and especially of courts of equity, to render decision only upon a full and fair exposition of all the pertinent material facts, and the courts will always be interested in any presentation that discloses any material fact not theretofore brought into the case. Nevertheless the law requires diligence from suitors, and when a trial has been had the question is not always whether justice has been done but whether the party complaining could, by the exercise of proper diligence, produced a different result … for while righteous results in specific cases are the great ends to be attained in equity decrees, it is also essential that there be an end to litigation, without unrighteous delays.

Griffith, Mississippi Chancery Practice, 2d Ed., 1950, § 632.

You need to think of final hearing as your one shot to get everything into the record that you will need to win the case on appeal, if necessary. The judge can’t give you a second chance without prejudicing the other party.

Waiver or Joinder?

January 28, 2020 § 8 Comments

Funny what one can pick up just by reading the rules.

A lawyer filed a complaint on October 4. The complaint had been signed on September 30. The defendant signed a waiver on October 2. The lawyer tried to convince me that the waiver was good because it was signed after the date that the complaint was signed. Well, let’s look at the rule. MRCP 4(e) says:

“Any party defendant … may, without filing any pleading … waive the service of process or enter his or her appearance … with the same effect as if he or she had been served with process … However, such written waiver or entry of appearance must be executed after the day on which the action was commenced … .”

An action is commenced by filing a complaint, per R3(a). So that took care of that.

But in looking at R4, I was surprised to read that an entry of appearance is treated the same as a waiver. Somehow, I never noticed that.

Isn’t a joinder an entry of appearance? I think it is, by another name. In this district we have customarily treated a joinder as a creature different from a waiver. Lawyers have used joinders to avoid the requirement of having to have a waiver that is signed after the complaint is filed. That may not be the way the rule has been interpreted in your district, and, if so, good for you.

I haven’t found any case law on the issue. Is anyone aware of any?

Crossroads Blues

January 27, 2020 § 5 Comments

Robert Johnson of Mississippi is widely credited as being one of the most influential blues guitarists ever. Eric Clapton, Keith Richards, and Jimi Hendrix, to name a few, idolized him and tried to imitate his technique. He died in Greenwood on August 16, 1938, at age 27, poisoned by another man with whose wife Johnson was romantically involved.

His estate was not opened until 1989, when his son, Claud, petitioned the court to be named executor. But Claud could not benefit from his father’s musical heritage because he had never been adjudicated Johnson’s son.

Claud retained the law firm of Kitchens & Ellis to represent him in an action to be declared Johnson’s son and heir, and in all subsequent legal matters Claud would have. They entered into a contingency fee contract that included an assignment of 40% of all revenue Johnson would receive, including royalties, commissions, profits, etc., from his father’s music. After Claud succeeded in being declared Johnson’s heir, the law firm received its 40% from Claud. Kitchens & Ellis later assigned its rights to the Kitchens Law Firm, P.A.

And then Claud died on June 30, 2015. His estate was opened, and the estate continued to receive revenue from the music of the late bluesman, but did not pay Kitchens its 40%. On October 20, 2016, Kitchens filed a motion asking the court to authorize and direct the executor to turn over the 40%, and to make an accounting. The executor responded that the claim was barred because Kitchens had not probated a claim. A special chancellor ruled that the claim was not barred, and ordered the executor to deliver the funds and to account. The estate appealed.

In Estate of Johnson v. The Kitchens Law Firm, P.A., decided by the COA on August 27, 2019, the court affirmed, holding that the claim did not have to be probated. Judge Corey Wilson wrote the unanimous opinion, Lawrence not participating:

¶13. Claud’s estate first contends that the chancery court should have dismissed Kitchens’s motion to authorize and direct executor because Kitchens’s claim is time-barred. Pursuant to section 91-7-151:

All claims against the estate of deceased persons, whether due or not, shall be registered, probated and allowed in the court in which the letters testamentary or of administration were granted within ninety (90) days after the first publication of notice to creditors to present their claim. Otherwise, the same shall be barred and a suit shall not be maintained thereon in any court, even though the existence of the claim may have been known to the executor or administrator.

(Emphasis added). Section 91-7-149 provides the requisite procedures for probating a claim against a decedent’s estate. Miss. Code Ann. § 91-7-149; In re Estate of Lingle, 822 So. 2d 320, 322 (¶12) (Miss. Ct. App. 2002).

¶14. It is undisputed that Kitchens did not register and probate any claim against Claud’s estate in accordance with the procedural requirements of section 91-7-149. It is also undisputed that Kitchens did not probate any claim against Claud’s estate within ninety days of the first publication of notice to creditors, which occurred on September 2, 2015. But Kitchens contends that it “was not required to probate a claim because the funds due [to] it, now and in the future, are not now, nor have they ever been, part of [Claud]’s estate.” We agree.

¶15. “Section 91-7-151 has no application to a suit for possession of property by virtue of ownership.” Maxwell v. Yuncker, 419 So. 2d 580, 583 (Miss. 1982). When Claud entered the contract in 1991, he agreed to

[s]et over and assign unto said firm of Kitchens & Ellis, causes of action or rights in the amount of forty percent (40%) of any and all sums of money or other benefits which they may recover or obtain for me by virtue of, or arising from, my biological relationship to the late Robert Johnson . . . .

(Emphasis added). “A valid assignment in Mississippi is a transfer of rights or property from one party (the ‘assignor’) to another (the ‘assignee’), in which the assignor intends to vest in the assignee a present right in the thing assigned.” 1 Donald Campbell, Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 7:1 (2018). Thus, pursuant to the contract, Kitchens is the rightful owner to the funds that it claims. In other words, the funds are not, and never were, part of Claud’s estate—they are merely being wrongfully withheld, contrary to the assignment, by the estate. Because the funds are not a part of Claud’s estate, Kitchens was not required to probate its claim. See Maxwell, 419 So. 2d at 583 (holding sections 91-7-149 and 91-7-151 have no application where appellant’s claim was not for a specific money demand due or to become due but rather was an inchoate and contingent claim involving the ownership of specific property). The special chancellor therefore did not err by declining to dismiss Kitchens’s claim as time-barred under section 9-71-151. This assignment of error lacks merit.

A parting thought: It costs nothing to probate a claim, even when you aren’t required to do so.

Dispatches from the Farthest Outposts of Civilization

January 24, 2020 § Leave a comment

Ten Commandments for Your Divorce Case

January 22, 2020 § 4 Comments

This is adapted from a handout that a Tennessee law firm gives to every divorce client. The client is required to date and sign the form, which is kept in the client’s file, presumably for “Didn’t I tell you not to do that?” purposes.


I.     You are still married until the judge signs the Final Decree of Divorce.

a.     You can not date or have sex or sexual contact with anyone, including your spouse, even if you are living together.

b.     If you have sex with anyone, it will give your spouse grounds for divorce based on adultery, complicate your case, and cost you money.

c.     Your spouse will review your cell phone records and computer activity during the divorce.

II.     Do not post to any social media or allow anyone to post on your behalf.

a.     No pictures or comments about your divorce on Facebook.

b.     No tweets about the divorce or your spouse on Twitter.

c.     Do NOT sign up for eHarmony, Match.com or any other dating site.

d.     Do NOT post to hook up with anyone on Craig’s List.

e.     Do NOT send lewd pictures to anyone.

III.     Do not discuss your attorney’s strategy or any details of your divorce with your spouse, friends, or co-workers.

a.     Every divorce is different, and what allegedly worked in your friend’s case will not work in yours.

b.     If you tell your spouse details about your case, you will lose leverage and it will cost you more money.

IV.     Establish a new, secure email account with a password that your spouse can’t guess.

a.     Make sure your computer is free of spyware and that you have it password protected.

b.     Password protect your cell phone.

V.     Be totally honest with your attorney and the staff, and treat them with respect and courtesy.

VI.    Remember that, as soon as the divorce complaint is filed, you are no longer in charge of your life. The Court is in charge. 

a.     You must comply with every order of the court, even if you disagree with the court’s ruling.

b.     Do not harass, drunk call or text, follow, shadow, or in any way interfere with your spouse. Judges hate that kind of behavior.

c.     Do not make changes to insurance without consulting your attorney first.

VII.   Immediately answer interrogatories and requests for production of documents from your spouse’s attorney.

a.     There are deadlines that can complicate your case and cost you money if you fail to meet them.

b.     Follow the attorney’s directions on how to respond.

c.     Do the necessary leg work to collect the necessary information, and organize it. The better you do it, the more money you will save. We have to charge you for the work we do for you.

d.     Organize and keep succinct notes about your spouse’s misconduct.

e.     Organize and create a record of all financial assets and accounts.

f.      Do NOT staple any of the documents you bring us. Organize them by question or request number, preferably in folders.

VIII.  Do NOT put your children in the middle during the divorce.

a.     We recommend and urge that you immediately enroll in a parenting seminar at http://www.parentingskillsinstitute.com.

b.     If your children are having issues, get them to counselling.

IX.    Read everything our office sends you … at least twice.

X.     You must pay your bill promptly as it comes due and provide additional retainers as requested. To keep your bill down:

a.     Avoid endless phone calls and emails to our office. You are charged for every form of communication.

b.     Organize your thoughts, questions, and concerns so that only one phone call, email, or office visit covers all issues.

c.     Do not send an email and then follow up with a phone call to discuss the same things.

d.     Consider finding a good counselor to help deal with the stress of divorce.



Sealing the Record

January 21, 2020 § Leave a comment

In the course of litigation between Fulgham, a lawyer, and his former law firm, Morgan & Morgan, PLLC and PA, the chancellor sealed the record at the PLLC/PA’s request. Fulgham objected to no avail. After he lost the case on other grounds, he appealed. One issue he raised was that the file should not have been sealed.

The COA reversed and remanded in Fulgham v. Morgan & Morgan, decided December 17, 2019. The court divided with J. Wilson, Westbrooks, Tindell, and McDonald concurring, Greenlee concurring in part and dissenting in part without separate opinion, Lawrence concurring in part and dissenting in part with separate opinion joined by Barnes and Greenlee. Carlton, McCarty, and C. Wilson did not participate. Lawrence’s concurrence/dissent refers to the “majority opinion,” so I will go with that term. J. Wilson wrote for the majority:

¶23. As noted above, following the initial ex parte hearing, the chancery court granted P.A./PLLC’s request to seal the entire case. P.A./PLLC stated in their written motion to seal the file that the case “concern[ed] confidential client information and communications, bound by attorney client privilege.” P.A./PLLC did not elaborate or provide any specific support for this claim in their motion or at the ex parte hearing. Nonetheless, the chancery court’s TRO provided “that this matter shall be sealed.” Fulgham later moved to lift the seal, but the chancery court did not address his motion. On appeal, Fulgham again moved to lift the seal, but a panel of the Supreme Court denied his motion, stating only that Fulgham’s motion was “not well taken and denied.”[Fn omitted]

¶24. Our Constitution mandates that “[a]ll courts shall be open,” Miss. Const. art. 3, § 24, and “Mississippi law favors public access to public records.” Estate of Cole v. Ferrell, 163 So. 3d 921, 925 (¶18) (Miss. 2012). “Court filings are considered to be public records, unless otherwise exempted by statute.” Id. at (¶15). In addition, a court may, within its discretion, determine that court filings or information contained therein “should be declared confidential or privileged” and sealed from public disclosure. Id. at (¶16). However, before sealing an entire case, a trial court should first “conduct the balancing test set out in Estate of Cole,” supra. Smith v. Doe, 268 So. 3d 457, 464 (¶27) (Miss. 2018); accord Butler Snow
LLP v. Estate of Mayfield, 281 So. 3d 1214, 1220 (¶¶27-29) (Miss. Ct. App. 2019). That test balances the claimed private interest in confidentiality against the public interest in open courts. Estate of Cole, 163 So. 3d at 924, 929 (¶¶11, 32-33).

¶25. In this case, the chancery court did not conduct any balancing test or any analysis of P.A./PLLC’s request to seal the entire case. The order sealing the case was simply entered following an ex parte hearing. Yet it is not clear that the court file in this case contains any privileged attorney-client communications or confidential client information. To the extent that it does, specific documents can be redacted or filed under seal as necessary. But the fact that a few specific filings may contain privileged or confidential information does not warrant sealing the entire case from public view.

¶26. In addition, although the Attorney Retention Agreement between Fulgham and P.A. to the public by action of the trial court . . . shall be closed to public access in the appellate courts and shall be treated as a confidential case by the clerk of the appellate courts.” contains a one-sided confidentiality provision, [Fn 13] that provision does not warrant sealing the entire the Agreement or the entire case. In this case, P.A. chose to make the Agreement a public judicial record by filing it in court and asking the court to interpret and enforce its terms. Once P.A. invoked the judicial process to enforce the Agreement, it was no longer entitled to insist that the Agreement remain confidential. See Estate of Cole, 163 So. 3d at 928 (¶28) (discussing Bank of Am. v. Hotel Rittenhouse Assocs., 800 F. 2d 339 (3d Cir. 1986)). Rather, the Agreement became a public record in a judicial proceeding, presumptively open to the public. Bank of Am., 800 F.2d at 345. It is conceivable that specific terms of the Agreement are sufficiently confidential and sensitive that parts of the Agreement could be redacted. [Fn 14] But the chancery court’s order sealing the entire case did not address that issue.

[Fn 13] The Agreement prohibits Fulgham, but not P.A., from disclosing the contents of the Agreement.

[Fn 14] On appeal, Morgan & Morgan has asserted that the Agreement contains “trade secrets.”

¶27. In summary, while a court has discretion to seal or require the redaction of court filings that contain confidential or privileged information, Estate of Cole, 163 So. 3d at 925 (¶16), the court must first balance the asserted private interest in confidentiality against the public interest in open courts and transparent judicial proceedings. Id. at 924, 929 (¶¶11, 32-33). The chancery court in this case failed to do so and abused its discretion by sealing the entire case file. Therefore, we vacate the chancery court’s order sealing the entire case. On remand, the chancery court may determine what, if any, part of the record should be sealed or redacted under the Supreme Court’s decision in Estate of Cole.

Mayfield was discussed here at this link.


January 20, 2020 § Leave a comment

State Holiday