Should Mississippi Have a Class-Action Rule? Your Comments are Invited

November 7, 2017 § 5 Comments

The MSSC has tasked the Supreme Court Advisory Committee on Civil Rules to study whether Mississippi should adopt a procedural rule allowing class actions. The committee is expected to recommend whether or not to do so, and, if the answer is positive, to propose how such a rule would operate.

The impetus for the referral comes from a motion filed with the court by Attorney Richard T, “Flip” Phillips to adopt Rule 23 of the Federal Rules of Civil Procedure.

To refresh your recollection, when the MRCP was adopted in 1982, Rule 23 was omitted. Up until then, equitable principles allowed consolidation of actions into something resembling class actions in chancery. The MRCP put an end to that, and some used Mississippi’s liberal joinder laws to fashion mass litigation that proved to be nightmarish in implementation. The MSSC and venue legislation put the kibosh on that, and so we are left with no tools for anything resembling class actions.

Both sides on the issue point out that Mississippi is the only state that does not have any form of state-court class action. Virginia allows class action in only extremely limited circumstances. All other states have rules allowing class actions.

The committee is gathering information and hopes to be in a position to make a recommendation by the spring of next year.

What do you think? Should Mississippi have a rule allowing class actions? Your comments are invited and will be shared with the advisory committee.

The Right to Confrontation

November 6, 2017 § Leave a comment

I posted here previously about the case of Miller v. Smith, in which the COA had ruled that there was no error when the chancellor excluded the parents from the courtroom during a child’s testimony in a child-custody case. Here is a link to my post.

The MSSC reversed the COA in the latest version of Miller v. Smith, decided October 26, 2017. Here is what Chief Justice Waller wrote for the court on the point:

¶19. The issue regarding Miller’s removal from the courtroom during the testimony of Kristen had relevance only while an issue existed concerning the custody of Morgan. A subsequent custody ruling of the trial court has granted custody of Morgan to Miller. We address the issue, though, because of conflicts in our caselaw as discussed below. See Alford v. Miss. Div. of Medicaid, 30 So. 3d 1212, 1214 (¶ 8) (Miss. 2010) (issue not moot if question concerns a matter “detrimental to the public interest that there should be a failure by the dismissal to declare and enforce a rule for future conduct.”) (citation omitted).

The Confrontation Clause of the Sixth Amendment

¶20. Miller argues the Confrontation Clause of the Sixth Amendment applies in this case, even though it is a civil case. By its own language, the Confrontation Clause extends only to criminal cases. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with witnesses against him . . . .”) (emphasis added); Hannah v. Larche, 363 U.S. 420, 440, 80 S. Ct. 1502, 1513, 4 L. Ed. 2d 1307 n.16 (1960) (“[The Sixth] Amendment is specifically limited to ‘criminal prosecutions’ . . . .”). As the Court of Appeals correctly observed, “The Confrontation Clause only applies to criminal cases. . . . So [Miller’s] first argument fails.” Miller [v. Smith], 2016 WL 6876509, at *3 (¶ 17) [(Miss. Ct. App. Nov. 22, 2016)].

¶21. According to Miller, the Court of Appeals’ decision is contrary to this Court’s precedent. To support his argument, Miller relies on In Interest of C.B., where we held “[t]his is not a criminal case, but we are of the opinion that the right of confrontation should be accorded to an accused parent in” youth-court cases. In Interest of C.B., 574 So. 2d 1369, 1374 (Miss. 1990). [Fn omitted] In a recent concurrence, though, Justice Beam wrote that our statement in In Interest of C.B. “was nonauthoritative dicta.” In re J.T., 188 So. 3d 1192, 1205 (¶ 71) (Miss. 2016) (Beam, J., concurring in part and result).

¶22. This Court cannot ignore the plain language of the Sixth Amendment, which limits its own application to “criminal prosecutions.” To the extent we held in the case of In Interest of C.B., 574 So. 2d at 1374, that the Sixth Amendment applies in civil proceedings, today we overrule it.

Article 3, Section 25 of the Mississippi Constitution

¶23. Miller argues his removal from the courtroom violated Article 3, Section 25 of the Mississippi Constitution. “No person shall be debarred from prosecuting or defending any civil cause for or against him or herself . . . by him or herself, or counsel, or both.” Miss. Const., art. 3, § 25. The Court of Appeals rejected Miller’s argument, finding no violation “[b]ecause [Miller’s] counsel was present during Kristen’s testimony . . . .” Miller, 2016 WL 6876509, at *4. However, the provision prohibits debarment of the individual “by him or herself.” Miss. Const. art. 3, § 25. The presence of Miller’s counsel did not cure the error that Miller, individually, was removed from the courtroom. As a result, a violation of Article 3, Section 25 occurred.

Harmless-Error Analysis

¶24. While the removal of Miller was error, the issue may be reviewed under harmless error analysis. Smith v. State, 986 So. 2d 290, 300 (¶ 30) (Miss. 2008); see also United States v. Pryor, 483 F.3d 309, 312 (5th Cir. 2007).

¶25. First and foremost, while Miller was absent, his attorney was present during the entire questioning. And Miller fails to explain how the examination would have changed had he been present alongside his attorney. See Jones v. State, 912 So. 2d 973, 977 (¶ 16) (Miss. 2005) (“Assertions of error without prejudice do not trigger reversal.”).

¶26. While a Sixth Amendment case, the decision in Rollins v. State is instructive on the issue of removing a defendant from the courtroom. Rollins v. State, 970 So. 2d 716 (Miss. 2007). In Rollins, the grand jury returned a multicount indictment charging the defendant with crimes related to sexual battery of children. Id. at 717 (¶ 2). The trial court allowed the children to testify through closed-circuit television. Id. at 717 (¶ 3). The defendant was removed from the courtroom to watch the television screen alone. Id. at 719 (¶ 5). However, technical difficulties arose, and the defendant was unable to view the witnesses on the screen. Id. at 721 (¶ 11). Because of the inability to see the witnesses and view their demeanor, the defendant raised confrontation issues, claiming a violation of his right required reversal. Id. at 722 (¶ 13). However, this Court held, “in order to receive a new trial, [the defendant] must show the denial of his right to view the demeanor of the minor witnesses prejudiced him.” Id. The Court continued: “[S]ince [the defendant] does not argue that he was prejudiced or demonstrate how he was prejudiced, this argument is without merit.” Id.

¶27. This Court finds that the same reasoning in the Sixth Amendment cases of Jones and Rollins should apply to Miller’s objections under Article 3, Section 25 of the Mississippi Constitution. Smith [sic] must show how he was prejudiced by the procedure used by the trial court. See Goins v. State, 155 Miss. 662, 124 So. 785, 786 (1929) (holding a constitutional error “did not require a reversal, because it did not result in any injury to the defendant . . . .”).

¶28. The trial court should have provided a mechanism, such as closed-circuit TV, for Miller to observe witness testimony when he was removed from the courtroom. However, as the U.S. Supreme Court has held, “most constitutional errors can be harmless.” Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 1263, 113 L. Ed. 2d 302
(1991)). We hold that, due to the lack of prejudice to Miller, Miller’s erroneous removal was harmless.

So, Article 3, Section 25 of the Mississippi Constitution requires that the parents, in cases such as this, be provided with means such as closed-circuit tv to observe the testimony of the child(ren) if the court decides that it is not in the child’s best interest for the parents to be present during the testimony. I imagine the 21st century equivalents FaceTime and Skype would suffice.

If your client is excluded over your objection, be prepared to explain how it prejudiced your client.

“Quote Unquote”

November 3, 2017 § Leave a comment

“Love is the motive, but justice is the instrument.”  — Reinhold Niebuhr

“What doth the Lord require of thee, but to do justly, and to love mercy, and to walk humbly with thy God?” —  Micah 6:8

“Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.”  —  Frederick Douglass

November 1, 2017 § Leave a comment

Some reader(s) apparently have had too much time on their hands and nominated this blog for the Expert Institute’s Best Legal Blog Contest. In honor of whoever did this, I’m passing on this link where you can vote in the “Niche and Specialty Blog category.”

The contest is underway and ends on November 3, 2017, at midnight. Happy voting!

An Extremely Useful UCCJEA Tool

October 31, 2017 § Leave a comment

Figuring out which state has jurisdiction in a UCCJEA case can be baffelizing, confuserating, miserizing, and flusterating.

To the rescue comes Attorney David A. Blumberg, who has devised a set of brilliant flow-charts that help analyze the law and apply it to your case. You can access them at this link. The charts include an intro that will send you to the chart applicable to your case. Charts include: initial orders; modification; enforcement; and decline jurisdiction. You can print the charts on a color printer.

I have played with them, and each appears quite accurate under Mississippi’s UCCJEA. Before you invest too much in them, however, I urge you to vet them for yourself.

Mr. Blumberg is a Wisconsin attorney who specializes in child custody jurisdiction and enforcement cases. His website includes resource material about the UCCJEA that you might find useful.


Thanks to Attorney William Wright, who introduced this to the chancery judges at our Fall Conference

The Ups and Downs of Modification

October 30, 2017 § 2 Comments

Modification of child support can get confusing. In one case, you ask for upward modification retroactive to the date of filing and you get modification beginning at the date of judgment. In another the judge grants upward retroactivity to the date of the parent’s increase in income. And in yet another the court does order upward retroactivity to the date of filing. What is the rule?

A good starting point is MCA 43-19-34(4), which reads:

Any order for the support of minor children, whether entered through the judicial system or through an expedited process, shall not be subject to a downward retroactive modification. An upward retroactive modification may be ordered back to the date of the event justifying the upward modification.

Downward: never retroactive. This comports with long-standing Mississippi law that each child support payment vests when and as it comes due, and it can not be forgiven. In Howard v. Howard, 968 So.2d 961, 977 (Miss. App. 2007), the court said:

¶ 41. Child support payments vest in the child as they become due. Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992). Each payment that becomes due and is unpaid becomes a judgment against the supporting parent. Id. A court cannot modify or forgive vested child support obligations. Id. Accordingly, when a payor moves for downward modification of child support, the payments due continue to vest during the pendency of the motion. Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990). Any modification granted will take effect on the date of the judgment granting the modification. Id. However, when an appellate court reverses and remands a child support modification appeal to the chancery court for redetermination of the issue, the effective date of any downward modification granted is the date of the judgment from which the appeal was taken. Setser v. Piazza, 644 So.2d 1211, 1216 (Miss.1994) (reversing and remanding the chancellor’s denial of abatement of child support for further consideration and holding that the effective date of any downward modification granted would be the date of the order that erroneously denied modification.); Cook v. Whiddon, 866 So.2d 494, 500(¶ 22) (Miss.Ct.App.2004) (stating that the chancellor could make any order entered on remand that reduced child support retroactive to the effective date of the judgment cleansing the payor’s hands and reviving the modification issue); Lane, 850 So.2d at 127(¶ 14) (noting that the Court was not at liberty to modify child support retroactively, and stating that on remand, if modification was granted, it would be retroactive only to the date of the judgment from which the appeal was taken).

Howard pre-dates 43-19-34(4).

What about emancipation? It sometimes happens that a modification action has to be filed to terminate a withholding order or for some other reason. Do those support payments that come due after emancipation vest so that they can not be undone, or does the liability continue to accrue while the action is pending? “Child support payments vest when due, and retroactive termination is an impermissible form of ‘downward retroactive modification….’ See Howard v. Howard, 968 So.2d 961, 977 (Miss.Ct.App.2007).” AML v. JWL, 98 So.3d 1001, 1016-17 (Miss. 2012)

In my opinion, if the emancipation is automatic by statute, such as attainment of age 21 or marriage or conviction of a felony, then the obligation terminated at that event, and no further obligation existed or vested, so it is not truly a retroactive modification but rather a judicial recognition of the termination as of the date of the event. MCA 93-11-65(9) is consistent with this reasoning.

If, on the other hand, the emancipation turns on a finding of fact, such as whether the child established independent living, then the obligation continues until the court’s order is entered.

Upward: In the court’s discretion. Id. at 1017 (¶43). The modification may be made retroactive to the event that triggered the modification action, such as a raise in pay. There are no cases of which I am aware interpreting this 2009 statute. My interpretation of the statute is that upward retroactivity may be to any point between the triggering event and the date of judgment. If you really want retroactivity, you should put on some persuasive proof about why it should be.


October 25, 2017 § Leave a comment

Judges’ Fall Conference

Next post October 30, 2017

October 24, 2017 § Leave a comment

Some reader(s) apparently have had too much time on their hands and nominated this blog for the Expert Institute’s Best Legal Blog Contest. In honor of whoever did this, I’m passing on this link where you can vote in the “Niche and Specialty Blog category.”

The contest is underway and ends on November 3, 2017, at midnight. Happy voting!

Perjury or Trial Strategy?

October 23, 2017 § 1 Comment

Thomas and Christy Ethridge consented to a divorce on the ground of irreconcilable differences and agreed that the chancellor would adjudicate custody. The chancellor awarded physical custody to Christy and awarded joint legal custody to both. After the judge denied Thomas’s R59 motion for a new trial, Thomas appealed.

In Ethridge v. Ethridge, handed down September 26, 2017, the COA affirmed. The court first addressed and rejected Thomas’s argument that the chancellor’s Albright analysis was erroneous. It then turned its focus on his claim that Christy had committed perjury at trial, and that the judge had committed error by not granting him a new trial. Judge Irving wrote for a unanimous court:

¶15. The judgment of divorce was entered on January 5, 2016, and Thomas filed his motion for a new trial on January 11, 2016. In seeking a new trial, he alleged that the trial court had, in its Albright analysis involving the physical and mental health and age of the parents, found that both he and Christy were in good health. However, he alleges that Christy has a history of inpatient treatment for mental-health issues, including depression and suicidal ideation, having been treated as an inpatient for such at Pine Grove Recovery Center. He alleges that she intentionally failed to disclose these facts and committed outright perjury at trial in order to affect the outcome of the case. Thomas asserts that the reason the issue of her mental fitness was not brought before the court was because his trial counsel was involved in a hit-and-run accident and was distracted when he returned to the court. In response, Christy points out that Thomas’s counsel rested before the break for lunch, and after lunch, the judge announced his ruling from the bench, so Thomas’s counsel’s incident during the break had no effect on the proceedings.

¶16. In rejecting Thomas’s post-trial motion for a new trial based on the allegation that Christy had committed fraud during the trial, the chancellor stated:

At oral argument [Christy]’s counsel represented that all parties and [Thomas]’s trial counsel were aware that [Christy] had a prior stay at Pine Grove in Hattiesburg as a result of a break up with a prior fiance before her marriage to [Thomas]. Those records were provided in discovery and appear to concern the years 2010 through 2012. Copies of those records were provided by [Christy]’s counsel to the Court and [Thomas]’s current counsel at the motion hearing. Those records are being filed under seal in the court file. The records are not in evidence from trial.

The use, non-use, or relevance of such information by [Thomas] at trial is deemed by the Court to involve trial strategy. The information was apparently known to [Thomas] and his counsel at trial. It was not introduced nor offered into evidence. Thus, there is no new or unknown evidence intentionally withheld by [Christy] that supports [Thomas]’s motion for a new trial on the grounds of perjury or fraud upon the Court.

¶17. As noted, the chancellor found that there was “no new or unknown evidence intentionally withheld by Christy that supports Thomas’s motion for a new trial on the grounds of perjury or fraud upon the Court.” If Thomas believed that Christy gave false testimony when his trial counsel questioned her about her mental fitness to care for the parties’ minor child, it was incumbent upon him to confront her with her medical records at that time if he thought they contradicted her testimony. Thomas does not claim, and there is no evidence, that he was somehow prohibited from bringing Christy’s past mental history to the court’s attention during the trial.

¶18. The standard for obtaining relief based upon an allegation of fraud upon the court has been succinctly addressed by the Mississippi Supreme Court:

Relief based on fraud upon the court is reserved for only the most egregious misconduct, and requires a showing of an unconscionable plan or scheme which is designed to improperly influence the court in its decision. Mere nondisclosure of pertinent facts to the court does not add up to fraud upon the court for purposes of vacating a judgment under Rule 60(b). Furthermore, the fraud must be proved by clear and convincing evidence. Doe v. Smith, 200 So. 3d 1028, 1033 (¶15) (Miss. 2016) (internal citations and quotation marks omitted).

¶19. As noted, the chancellor found that “there [was] no new or unknown evidence intentionally withheld by [Christy] that support[ed] [Thomas’s] motion for a new trial on the grounds of perjury or fraud upon the [c]ourt.” We agree. This issue is without merit, and we find no error in the April 26, 2016 order denying the relief requested by Thomas.

It appears from the opinion that Christy was never confronted on the witness stand with the information that Thomas claims was so damning. If she was not given the opportunity to lie about it, how can she be accused of lying? Also, the information had been disclosed in discovery and was in Thomas’s possession during the trial. When Christy did not volunteer the information, he had the opportunity to confront her with it.

So, was Christy’s failure to volunteer the information tantamount to perjury or fraud on the court? If you say yes, what is your authority for that position? I don’t believe it was.

Finally, this case underscores a key consideration: you can not try to introduce new evidence via a R59 motion unless you can show that it was newly obtained evidence that was previously unavailable. The outcome would probably have been different if Christy had concealed the existence of the records and Thomas only discovered them after trial. Unlikely, but stranger things have happened.

Reprise: Checklist for Closing an Estate

October 20, 2017 § Leave a comment

Reprise replays posts from prior years that you may find useful today.

This one should be in every one of your estate files.


September 27, 2010 § 19 Comments

  • _____ Judgment opening the estate or admitting will to probate is filed, and there is no contest.
  • _____ Oath of Executor/Administrator filed.
  • _____ The Executor/Administrator has properly filed his or her bond, or it was waived by the will or by sworn petition of all heirs with entry of a court order authorizing the waiver.
  • _____ Letters Testamentary or of Administration issued.
  • _____ The affidavit of known creditors required by MCA § 91-7-145 was properly executed by the Executor/Administrator and filed before publication to creditors.
  • _____ Publication of Notice to Creditors was made in “some newspaper in the county” that meets the criteria in MCA § 13-3-31, for three consecutive weeks, and it has been more than ninety days since the first publication.
  • _____ Inventory and appraisement were done and timely filed, or were waived by the will or by all heirs by sworn petition with order so waiving.
  • _____ All accountings were timely filed and approved by court order (other than the final accounting, which is now before the court), or waived by the will or excused by the court.
  • _____ In the case of an administration, publication for unknown heirs has been completed, and a judgment determining heirs has been presented, or will be presented in advance of presenting the final accounting.
  • _____ All interested parties to this estate have been served with the petition to close and all other closing documents, including the final account, and they have joined in the petition or have been duly served with a Rule 81 summons, and there is a proper return or properly executed waiver or joinder for each interested party.
  • _____ All probated claims have been paid, and evidence of such payment is in the court file, or the probated claims will be paid in the course of closing the estate, and a final report will be filed evidencing payment.
  • _____ The attorney’s fees and expenses, as well as those of the Executor/Administrator have been disclosed to all interested persons, and they have no objection.