March 5, 2019 § Leave a comment
When you file an action to determine wrongful-death beneficiaries, which type of process is proper: MRCP 4 or 81?
Matthew DeForest filed a Petition for Determination of Heirs-at-Law and Wrongful Death Beneficiaries after his father died in a trucking accident. Joe Alexander, the father’s brother, filed a contest asserting several defenses, among them that the court did not have personal jurisdiction over him because the proper process was not used. The chancellor ruled for DeForest, finding that “Matthew Bryan DeForest is the sole and only heir-at-law of the decedent for the purposes of the wrongful death action.” Alexander appealed.
In Alexander v. DeForest, decided January 31, 2019, the MSSC affirmed. Justice Coleman wrote for the unanimous court (Waller not participating):
¶7. In his first issue, Alexander argues that DeForest’s petition should have been dismissed pursuant to Rule 12(b)(4) for lack of personal jurisdiction because process was insufficient. According to Alexander, he should have been served process consistent with Mississippi Rule of Civil Procedure 81(d)(1) as opposed to Mississippi Rule of Civil Procedure 4(b).
¶8. Alexander argues that the chancery court’s judgment is void because it never had personal jurisdiction over him due to DeForest’s failure to serve him with a Rule 81 summons. Alexander explains that “An action to determine heirship is governed by Rule 81(d)(1) for which a summons substantially conforming with Mississippi Rule of Civil Procedure Form 1(D) should issue to known and unknown respondents.”
¶9. DeForest caused Alexander to be personally served with a summons via certified mail. The summons stated that a response must be mailed or delivered within thirty days from the date of the delivery. However, the record also contains another summons. The second summons is a summons by publication addressed to “The Unknown Wrongful Death Heirs, Executors, Administrators, Devisees, Legatees, or Statutory Beneficiaries . . . of Jeff Underhill, Deceased, and Any and All Persons Claiming to be a Wrongful Death Beneficiary of Jeff Underhill, Deceased.” The body of the summons contained the following statement:
“The only other respondents other than you in this action are Jeanne Elizabeth Tyler, Joe Alexander, Sam Underhill, Tyler Alexander, and Luke Underhill.” Additionally, the summons required anyone claiming to be a wrongful death beneficiary “to appear and defend against the Petition filed by Matthew Bryan DeForest against you in this action 9:30 A.M. on the 21st day of October, 2016, . . . .” DeForest’s position is that, cumulatively, the personal summons and summons by publication gave Alexander sufficient notice as required by law.
¶10. We hold that in the instant case, the Rule 4 summons was sufficient, as the instant matter to determine wrongful death beneficiaries is not one of a determination of heirship as contemplated by Rule 81. In Long v. McKinney, 897 So. 2d 160, 175-76 (¶ 67) (Miss. 2004), we explained,
“Although there is no specific mandated procedure for the identification of wrongful death beneficiaries, a chancery court may make such determinations; those persons bringing the wrongful death action, together with their counsel, have a duty to identify the beneficiaries, and they should do so early in the proceedings.” Further, the Court has explained on several occasions that a “wrongful death action is not part of the estate of the deceased, and only those individuals listed in the wrongful death statute may bring this independent cause of action.” Pannell v. Guess, 671 So. 2d 1310, 1313 (Miss. 1996) (citing Partyka v. Yazoo Dev. Corp., 376 So. 2d 646, 650 (Miss. 1979)).
¶11. Though there is much terminology overlap and mirroring of language between a determination of heirs for the purpose of an estate and a determination of wrongful death beneficiaries, the only possible issue before the chancery court at the time was a determination of wrongful death beneficiaries, which is a different animal than a determination of heirship as governed by Mississippi Code Section 91-1-29. A determination of wrongful death beneficiaries does not require a Rule 81 summons; therefore, the Rule 4 summons DeForest caused to be served on Alexander was sufficient for the chancery court to obtain jurisdiction.
- Plenty of lawyers do not appreciate the difference between an action to determine heirs in an estate and an action to determine wrongful death beneficiaries that is outside an estate. The former is a R81(d)(1) matter, and the latter is a R4 matter. I have had to send lawyers back to the drafting table time after time because they mix up the two. And although there is some overlap between the laws of heirship and the law of wrongful-death beneficiaries, the two are actually different.
- Before you go diving off into a chancery action to determine wrongful-death beneficiaries, the following is required reading: MCA §§ 91-1-1 and 3 (descent and distribution); MCA § 11-7-13 (wrongful death actions); UCCR 6.10 (petitions in chancery to compromise settlements); and Long v. McKinney, cited above. Only after you grasp all of that in combination should you file your petition.
- In this case, DeForest made his job more difficult by casting his pleading as one to determine heirs and wrongful-death beneficiaries. It not only opened him to the defense of bad process, but probably caused some consternation to the chancellor who nonetheless plowed ahead and found DeForest to be “the sole and only heir-at-law of the decedent for purposes of the wrongful death action,” a correct, if confusedly worded, conclusion no doubt dictated by DeForest’s confusing prayer for relief. DeForest should have filed two different pleadings, one for determination of heirship and one for determination of Wrongful death beneficiaries, with two different processes.
Alexander also argued that DeForest’s claim to be sole wrongful-death beneficiary was defeated by the fact that his father’s parental rights had been terminated by judgment of a Michigan court. We’ll explore that intriguing proposition in a later post.
March 4, 2019 § 1 Comment
The Revettes filed suit to confirm title, and the Fergusons counterclaimed alleging ownership by adverse possession. After hearing the evidence, the chancellor ruled that the Fergusons did, indeed, have title by adverse possession. Before entering a final judgment, however, the chancellor ordered the Fergusons to obtain a survey of the disputed property. When they did so, producing a survey by Mr. Saul, the chancellor attached it as “Exhibit A” to the final judgment without further hearing. The Revettes appealed.
In Revette v. Ferguson, handed down December 11, 2018, the COA affirmed the chancellor’s decisions on the issues of adverse possession and damages, but reversed and remanded for further evidence on the survey. Judge Greenlee wrote the majority opinion:
¶29. The Revettes argue that the chancellor should not have considered the Saul survey, “Exhibit A,” in his final judgment because they did not have the opportunity to challenge that survey at a hearing or cross-examine the surveyor and it was not admitted as evidence. Although the Fergusons argue that the Revettes waived this issue, we find the Revettes preserved their objection by responding to the Saul survey and attaching their own competing survey, the Walker survey. We hold that it was error for the chancellor to consider a survey without proof being taken and upon the Revettes’ objection; therefore, we reverse and remand this issue to the chancery court. [Fn omitted]
¶30. In order to have a survey properly admitted into evidence, the surveyor needs to be called to explain and be subject to cross-examination. White v. Usry, 800 So. 2d 125, 131 (¶26) (Miss. Ct. App. 2001). In Abercrombie v. Carter, 73 So. 3d 561, 562-63 (¶¶8-11) (Miss. Ct. App. 2011), we held it was error for a chancellor to consider a survey that was properly excluded at a hearing as hearsay under Mississippi Rule of Evidence 802, noting that the parties were not allowed to challenge the survey at the hearing or cross-examine the surveyor. We find the chancellor committed error in this case for similar reasons. The Revettes did not have the opportunity to cross-examine the Fergusons’ surveyor, and the survey was not admitted into evidence for the chancellor’s consideration. Further, a comparison of “Exhibit A” with Exhibit 7, which the parties stipulated to, reveals inconsistencies. Notably, the thalweg of the Chickasawhay River and the approximate water line differ in both exhibits; as do the call lines of the land adversely possessed. We therefore reverse and remand this matter to the chancellor so that the Revettes may challenge the survey in “Exhibit A,” may cross-examine the surveyor, and may offer their Walker survey for use by the court.
For those of us who are ignorant of some nuances of property law, thalweg (pronounced “tal-veg,” from the German), according to a definition I found via Google, is “In geography and fluvial geomorphology … the line of lowest elevation within a valley or watercourse. Under international law, a thalweg is the middle of the primary navigable channel of a waterway that defines the boundary line between states.” Well, that’s a new one on me. In all my years at the bar, I have never stumbled upon that concept. But it should not surprise. It’s yet another instance of how the law can be so gnostic sometimes, especially in property law, where the Druids of Feoffments (practitioners of the alchemy of fee simple) zealously guard their esoteric spells and incantations from us generalists.
A similar case involving necessity of the sponsoring witness is the subject of a post at this link.
March 1, 2019 § Leave a comment
“We, each of us, need so much to be affirmed. For each of has — gnawing away at the center of our being — a sense of insecurity, some more than others. And frequently, the more insecure, the more aggressive we become. The more we throw our weight about and say people should recognize us.” — Desmond Tutu
“If your compassion does not include yourself, it is incomplete.” — Jack Kornfield
“People have a hard time letting go of their suffering. Out of a fear of the unknown, they prefer suffering that is familiar.” — Thich Nhat Hanh
“Some things cannot be fixed. They can only be carried.” — Megan Devine
February 27, 2019 § Leave a comment
It can only take a minimal flub in the steps leading up to a tax sale for the whole thing to be thrown out.
That’s the lesson you can take from the COA decision in Rebuild America, Inc. v. Drew, handed down January 22, 2019. In that case the chancellor had ruled that Jane Drew never got actual notice of the three tax sales that resulted in forfeiture of her property in Diamondhead, and the failure to notify her in compliance with the statutes rendered the sales — all three — completely ineffective and void. Here is how the COA concluded its unanimous ruling (Tindell not participating):
¶31. Drew was never given proper statutory notice that her property had been sold for taxes or of her right to redeem the property. As our Supreme Court recently reiterated, Mississippi law takes “a hard-line approach” to this issue: “the redemption-notice statute must be followed strictly.” Campbell Props., 2018 WL 6381141, at *4 (¶15). When the statute is not followed strictly, the tax sale is void ab initio—it has no legal effect whatsoever, and it is as if the sale never happened. City of Horn Lake, 2018 WL 2731592, at *3 (¶13). Because each successive tax sale in this case was void ab initio, Drew remains the rightful owner of the property. Accordingly, the judgment of the chancery court is AFFIRMED.
The two important principles are: (1) Mississippi tax sale notice laws must be strictly complied with; and (2) failure to follow the statutes strictly renders the sale void ab initio, meaning it is as if it never happened.
When you are considering whether to take a tax sale case, look at every single stage of the proceedings, and look carefully. It is not enough that there was substantial compliance with the statutes; the cases, of which there are many, demand a strict compliance with the notice and redemption provisions.
February 26, 2019 § Leave a comment
In a case last month the COA affirmed a chancellor’s dismissal of a an ex-wife’s petition filed 21 years after the divorce to “allocate and disburse retirement funds.” In the divorce case she had been granted only the divorce, custody, and child support; she had not sought any division of retirement or other funds, and the court did not order it. The case is Stubbs v. Stubbs, decided January 29, 2019.
That case is pretty straightforward and not particularly noteworthy, but it set me thinking about cases in which there is an agreement that, for instance, the husband will pay a percentage of his retirement benefits when he begins drawing them. I have seen those in military and railroad retirement, which is not otherwise divisible. PERS benefits would fit into that category.
If the court orders that an act be done beyond what would ordinarily be the statute of limitations (SOL) applicable to the order, does that stay the running of the statute?
Can one seek modification of that part of the order that has not yet taken effect? For example, could the ex-wife after 5 years, but before the retirement, ask the court to increase the percentage previously ordered, or does she have to wait until the retirement benefits begin?
We all know that a mere order of the chancery court is not adequate to protect the ex-wife’s interest in these scenarios. Either a QDRO or a court order in the form dictated by the military or Railroad Retirement Board is necessary to do so. Can SOL be pled to bar entry of a QDRO or similar order sought years after the original judgment on which it is based?
Just a few idle thoughts to ponder as we slog in our snowshoes toward another glorious Spring.
February 25, 2019 § Leave a comment
Judicial estoppel is the principal that prevents you from taking inconsistent positions in the course of litigation. An example might be where one admits adultery in a pleading, but then tries to deny it at trial.
A question of judicial estoppel arose in the adverse possession trial between the Winters and the Billings. The Winters claimed ownership of some land by adverse possession. In answering interrogatories, Mr. Billings stated seven times that he had not spoken with Mr. Winters about the land, but at trial he tried to testify that he had given Mr. Winters permission to use the land. Winters objected on the ground of judicial estoppel, and the chancellor overruled the objection. After the chancellor entered judgment in favor of the Billings, the Winters appealed on several grounds, one of which was that the judge erred in not ruling that the inconsistent statements were barred by judicial estoppel.
In Winters v. Billings, a COA decided January 15, 2019, the court affirmed the judge’s ruling on judicial estoppel. Judge Greenlee wrote for the court:
¶24. The Winterses assert that because Mr. Billings made seven statements in sworn interrogatories that he never spoke with Mr. Winters about the land, the chancellor should have judicially estopped Mr. Billings from asserting that he gave Mr. Winters permission to use the land.
¶25. “Judicial estoppel is designed to protect the judicial system and applies where intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.” Kirk v. Pope, 973 So. 2d 981, 991 (¶31) (Miss. 2007) (internal quotation mark omitted). Our supreme court has held that there are three elements of judicial estoppel: “A party will be judicially estopped from taking a subsequent position if (1) the position is inconsistent with one previously taken during litigation, (2) a court accepted the previous position, and (3) the party did not inadvertently take the inconsistent positions.” Clark v. Neese, 131 So. 3d 556, 560 (¶16) (Miss. 2013).
¶26. The chancellor found that the jointly-submitted pretrial order indicated that “Mr. Billings gave Mr. Winters and his family ‘permission’ to use the disputed strip of property” and that the pleadings were amended to conform to that pretrial order. Furthermore, the chancellor noted that Mr. Winters indicated in his own testimony that he spoke with Mr. Billings about the land, and only the contents of that conversation were disputed. We also note that the interrogatories were vague as to their actual subject, but they meant to elicit general responses and do not focus on permission or lack thereof. “A chancellor sits as a fact-finder and in resolving factual disputes, is the sole judge of the credibility of witnesses.” Tice v. Shamrock GMS Corp., 735 So. 2d 443, 444 (¶3) (Miss. 1999). In this position, the chancellor may assess the materiality and relevance of answers to interrogatories, along with any inconsistent testimony thereto at trial and decide on its credibility. Mr. Billings’s assertion was not inconsistent with a prior position taken during litigation, the chancellor had not accepted the previous position, and the chancellor’s holdings indicated that at most Mr. Billings inadvertently may have taken the inconsistent positions.
¶27. Under our limited standard of review, we hold that the chancellor’s holding was not manifestly wrong or clearly erroneous, nor did the chancellor apply an incorrect legal standard. Thus, we affirm.
- It’s not too far a stretch for the chancellor to suppose that Mr. Billings’s inconsistencies might have been inadvertent. The case took around 3 years to make it to trial, and lots of words get thrown around in a three-year span, some of which may be spoken or written based on misunderstanding. That pre-trial order was likely the nail in the coffin, so to speak, for the judicial estoppel argument.
- Just because your claim of judicial estoppel is shot down by the trial judge, it does not mean that you can’t cash in on the inconsistencies. As the COA said, ” … the chancellor may assess the materiality and relevance of answers to interrogatories, along with any inconsistent testimony thereto at trial and decide on its credibility.” In other words, you can hammer away at the witness about his credibility and apparent inability to get his story straight. That sort of thing can be loads of fun, particularly on cross-examination.
February 22, 2019 § Leave a comment
Reprise replays posts from the past that you may find useful today.
Demoting General Relief
July 28, 2015 § 4 Comments
One of the chief distinctions between chancery and the law courts is that chancery is often called upon to be a problem-solving venue, as opposed to a place where one goes to obtain a money judgment against another.
And the chancellor’s authority to fix the situation can extend beyond the specific relief spelled out in the pleadings.
Many, many cases can come to mind to illustrate what I am talking about, but here are a couple:
- A case in which there is an acrimonious battle over child custody. In the course of the trial, the proof develops that both of the parties are using the children as pawns and spies, and are downgrading the other parent to the children. The pleadings filed by each party asked only for custody. Is the chancellor precluded from addressing the deleterious conduct in her final judgment? Of course not. Chancellors often add an injunction against conduct like that, whether asked for in pleadings or not. That has been the practice in chancery as long as I have been around, and it should be.
- Another example could arise in a land-line case. That type case is often characterized by property damage and atrocities, threats, and breaches of the peace (as, for instance in this COA case). Faced with evidence of such misconduct, can the chancellor deal with it even in the absence of an express prayer for relief? I think she should.
The principle embodied in those cases is why pleadings in chancery court typically include the ending phrase ” … and (s)he prays for general relief.” General relief flows out of the reservoir of equitable power that a chancellor can draw on to solve the problem, not just award money judgments. That is, after all, what equity was created for in the first place.
In the case of Redmond v. Cooper, 151 Miss. 771, 119 So. 592 (1928), the court had this to say about general relief:
“A prayer for general relief is as broad as the equitable powers of the court. Under it, the court will shape its decree according to the equities of the case, and, broadly speaking, will grant any relief warranted by the allegations of the bill, whether it is the only prayer in the bill, or whether there is a special prayer for particular and different relief; and defects in the special prayer are usually cured by a general prayer. If the facts alleged are broad enough to warrant relief, it matters not how narrow the specific prayer may be, if the bill contains a prayer for general relief. The prayer for general relief serves to aid and supplement the special prayer by expanding the special relief sought, so as to authorize further relief of the same nature. It may also serve as a substitute for the prayer for special relief, and authorize relief of a different nature when that specially prayed is denied.”
No doubt the above was what the chancellor had in mind in the course of legal proceedings between Denise Pratt and Darlene Nelson. Pratt had been making threatening phone calls to Nelson, and had been driving by her home at night. On one day, over the course of a few hours, Pratt sent Nelson 78 text messages, 38 telephone messages, 38 phone calls, and numerous voicemail messages, both via landline and cell phones. Nelson testified that Pratt used profanity and threatened that she and members of her household “would burn alive.” Nelson’s daughter was awakened by one of the calls, became frightened by what she heard, and fell while running to her mother, suffering an injury that required stitches in an emergency room.
Nelson filed a petition for an ex parte emergency domestic relations order in municipal court. Later, she filed a petition for a domestic abuse protection order in chancery court. In both instances, she used the forms provided by the Mississippi Attorney General, pursuant to MCA 93-21-1 through 33.
Trial before the chancellor commenced, but could not be completed within the time allotted. The case had to be continued to another day. The chancellor found the evidence to that point sufficient to support an injunction against Pratt prohibiting her from going within 1,000 feet of any party to or witness in the proceeding until the hearing could be concluded. After the hearing had been reconvened and the proof was concluded, the chancellor ruled from the bench, in part [quoting from Fn 6 of the COA’s opinion cited below]:
“… people are entitled to be left alone. . . . I’m going to keep the restraining order that I set in place at the close of the plaintiff’s case. But I am going to up [the penalty] to $10,000 upon a . . . valid showing of violation of the restraining order that I entered against you, Mrs. Pratt. . . . I think that’s reasonable. . . . I see a pattern of how this has taken place. . . . It’s [been an] ongoing controversy . . . for quite some time.” When Pratt’s counsel asked if the order was granted under the Domestic Abuse Protection Act or under Rule 65, the chancellor responded that he was granting it under the “Chancery Court Rules, . . . a temporary restraining order [under Rule] 65(b), whether it is asked for or not, because that would be general relief.”
Pratt appealed, complaining that the chancellor had erred in issuing an injunction per MRCP 65 when a protective order under the statute should have been issued instead. The COA agreed with her and reversed and rendered in Pratt v. Nelson, decided July 21, 2015.
I can’t disagree with the COA’s conclusion that the chancellor in this particular case went beyond the scope of the domestic-violence statute and the limits of the relief that it allows. What gives me pause, though is that the underlying problem here remains unresolved. The chancellor was there to solve or at least address the problem, which appears from the record to have been serious. He tried to do that via general relief, and, from my reading of the case law, he was within the scope of that authority. The cases on general relief and its parameters are, for the most part, old cases, dating as far back as the 1880’s and into the 1970’s. But that does not indicate that the concept is dead. In Bluewater Logistics, LLC v. Williford, 55 So.3d 148 (Miss. 2011), the MSSC upheld a chancellor’s award of equitable relief against defendants where it had not been expressly pled, but the relief was justified and supported by the evidence.
It seems to me that, ever since the MRCP for the most part did away with entirely different procedures in chancery and the law courts, the appellate courts have been viewing equity in a more limited way, rather than in the expansive view that cases like Redmond employed. It seems that the appellate courts want equity to operate within rigid, prescribed parameters like the law courts, rather than in a more fluid, problem-solving fashion.
When we restrict a chancellor’s power to craft an adequate solution to a human situation in which lives, property, money, and relationships are involved, we can put all of those at risk in the name of proper procedure. Surely no reasonable person wants that kind of result. That’s why we have “general relief” and chancery courts in the first place.
February 20, 2019 § Leave a comment
Ever since the dawn of the MRCP, Mississippi has been at least nominally a notice pleading state. As R8 describes it, all that is required is a “short and plain statement of the claim showing that the pleader is entitled to relief” and a demand stating the relief requested. Contrast that with the arcane rules that demanded prolix and convoluted pleadings.
So, the result is that pleading for plaintiffs is much more streamlined since the MRCP, right? Well, yes, compared with the situation pre-rules. BUT there are requirements of which one must be aware lest one lapse into error. Here are the Advisory Committee Notes to R8, which succinctly state what is required:
Rule 8 allows claims and defenses to be stated in general terms so that the rights of the client are not lost by poor drafting skills of counsel. Under Rule 8(a), “it is only necessary that the pleadings provide sufficient notice to the defendant of the claims and grounds upon which relief is sought.” See DynaSteel Corp. v. Aztec Industries, Inc., 611 So. 2d 977 (Miss. 1992). A plaintiff must set forth direct or inferential fact allegations concerning all elements of a claim. See Penn. Nat’l Gaming, Inc. v. Ratliff, 954 So. 2d 427, 432 (Miss. 2005). Motions or pleadings seeking modification of child custody must include an allegation that a material change has occurred which adversely affects the child or children. It is not sufficient to allege that an adverse change will occur if the modification is not granted. See, e.g., McMurry v. Sadler, 846 So. 2d. 240, 244 (Miss. Ct. App. 2002). In cases involving the joinder of multiple plaintiffs, the complaint must contain the allegations identifying by name the defendant or defendants against whom each plaintiff asserts a claim, the alleged harm caused by specific defendants as to each plaintiff, and the location at which and time period during which the harm was caused. See 3M Co. v. Glass, 917 So. 2d 90, 92 (Miss. 2005); Harold’s Auto Parts, Inc. v. Mangialardi, 889 So. 2d 493, 495 (Miss. 2004). Failure to provide this “core information” is a violation of Rules 8 and 11. Plaintiffs in such cases must also plead sufficient facts to support joinder. Glass, 917 So. 2d at 93; Mangialardi, 889 So. 2d at 495. [My emphasis]
Often the inadequacy of the pleading is brought up via a R12(b)(6) motion which, when granted, allows leave to amend and correct the deficiency. In McMurry, supra, however, the defendant sprang the trap at trial, and when the plaintiff failed to move to amend the judge dismissed the pleading.
McMurry requires that all three elements of modification of custody be pled (i.e., material change, adverse effect, best interest). But there are custody modifications that involve detrimental or dangerous situation for the child a la Riley v. Doerner, 677 So.2d 740, 744 (Miss. 1996), with no adverse effect. In those cases you should spell out in your petition or complaint that there has been a material change creating a detrimental or dangerous situation for the child, and it is in the child’s best interest to change custody.
February 19, 2019 § 1 Comment
Former Chancery Clerk and now US District Court Clerk Arthur Johnston, sent me the following suggestion:
Another tip for lawyers, esp in chancery, would be to list in proposed orders the motions to be terminated if the proposed order is entered. That helps the clerk and the judge keep a clean docket and makes the motions and other reports true.
You filed a motion to compel and opposing counsel filed another motion about discovery. You reach an agreement with her to resolve both motions. In the agreed order you include the statement that “This order disposes of MEC nos. 18 and 24.”
Or, in the temporary order you could include the sentence, “This order disposes of plaintiff’s Motion for Temporary Relief, MEC no. 5, and defendant’s Motion to Grant Temporary Relief, MEC no. 9.”
One advantage of MEC is that everyone involved has access to the docket so you have a ready-made tool online, without having to drop everything and go to the courthouse to drag out the old General Docket Books. The more accurate and informative we make our electronic docket, the better and more useful tool it will be.
February 18, 2019 § Leave a comment