The Effect of Interpleader on a Counterclaim

April 9, 2018 § Leave a comment

We posted previously about the COA’s decision in Pulliam v. Alfa Ins. Co. and Nance, in which the court upheld a chancellor’s decision that C.D. Pulliam had no authority to change the ownership and beneficiary of a life insurance policy owned by his deceased daughter.

Another issue raised by Mr. Pulliam on appeal is whether the chancellor erred in ruling that his counterclaim was rendered moot when the court approved the interpleader by Alfa. The question is whether the trial court’s granting of the request to interplead funds operates as a release of the interpleader’s liability as to the funds. C.D. had claimed that the litigation, including the interpleader, was made necessary by Alfa’s own negligence and misconduct. Did the interpleader act to absolve Alfa of any wrongdoing?

Judge Wilson wrote the COA’s unanimous opinion on the issue:

 ¶13. Mississippi Rule of Civil Procedure 22 permits a plaintiff to file a complaint for interpleader and join as defendants “[p]ersons having claims against the plaintiff . . . when their claims are such that the plaintiff is or may be exposed to double or multiple liability.” M.R.C.P. 22(a). “Any party seeking interpleader . . . may deposit with the court the amount claimed, . . . and the court may thereupon order such party discharged from liability as to such claims and the action shall continue as between the claimants of such money . . . .” M.R.C.P. 22(b). Interpleader protects a stakeholder subject to competing claims to identifiable funds “from being obligated to determine at his peril which claimant has the better claim.” M.R.C.P. 22 cmt. “[A]nd, when the stakeholder himself has no interest in the fund, [interpleader] forces the claimants to contest what essentially is a controversy between them without embroiling the stakeholder in the litigation over the merits of the respective claims.” Id. “The primary test for determining the propriety of interpleading the adverse claimants and discharging the stakeholder is whether the stakeholder legitimately fears
multiple vexations directed against a single fund.” Id.

¶14. “Ordinarily, interpleader is conducted in two ‘stages.’” Id. In the first stage, the court determines “whether the plaintiff is entitled to interplead the defendants,” and in the second stage, the court determines who is entitled to the interpled funds. Id. Alfa has admitted from the outset of this litigation that the beneficiary of the subject life insurance policy is entitled to its proceeds, which Alfa deposited with the chancery court. And Alfa’s complaint only asked the chancery court to identify the proper beneficiary or beneficiaries under the policy. Therefore, Alfa emphasizes that its role should be limited to the “first stage” of the interpleader action.

¶15. We have no difficulty affirming the chancery court’s determination that Alfa was entitled to interplead the defendants. Indeed, this case presents a common, well-recognized scenario in which interpleader is appropriate. See, e.g., Jeffrey Jackson & Jason D. Childress, Mississippi Insurance Law and Practice § 19:12 (3d ed. 2017) (“A life insurer that is uncertain regarding to whom policy proceeds should be paid may interplead the competing claimants and tender the policy proceeds to the court.”);  7 Charles Alan Wright, Arthur R. Miller et al., Federal Practice and Procedure § 1705 (3d ed. 2001) (“Typical examples involve multiple claims against a life-insurance company for the proceeds of a policy that
focus on an attempted change of beneficiary . . . .”). Alfa legitimately feared multiple liability based on competing claims to the same life insurance proceeds. Therefore, interpleader was appropriate. See M.R.C.P. 22(a) & cmt.

¶16. On appeal, C.D. argues that interpleader is not appropriate because Alfa has “unclean hands.” By “unclean hands,” C.D. means that Alfa’s alleged tortious conduct is responsible for the failure of his attempt to change the ownership and beneficiaries of the policy—or perhaps that Alfa induced him to pay premiums on a policy that he did not own. However, C.D.’s allegations—even if true—are not a defense to Alfa’s interpleader complaint.

¶17. C.D.’s argument harkens back to the “historical requirements” for “equitable interpleader.” First Nat’l Bank of Vicksburg v. Middleton, 480 So. 2d 1153, 1155 (Miss. 1985). “Historically”—that is, prior to the adoption of the Mississippi Rules of Civil Procedure—“equitable interpleader ha[d] four requirements,” one of which was that the party seeking interpleader “must have incurred no independent liability to either of the claimants.” Id. (quoting V.A. Griffith, Mississippi Chancery Practice § 23 (2d ed. 1950)). However, our Supreme Court held that “Rule 22 of the Mississippi Rules of Civil Procedure . . . terminated the historical requirements for interpleader in the chancery courts,” including the no
independent-liability requirement. Id. at 1155, 1156-57. The Court explained that Rule 22 was “designed to eliminate the technicalities which formerly limited the use of interpleader, and thereunder interpleader is available to cover any situation of exposure to multiple liability under the procedure outlined in the rule.” Id. at 1156 (emphasis added) (quoting 48 C.J.S. Interpleader § 5, at 125-26 (1981)). Rule 22 is to be applied “liberally” and not subjected to “technical” limitations, “and any doubts should be resolved in favor of permitting an interpleader action to lie.” Id. Rule 22 “interpleader is a procedural device” “directed toward increasing the availability of interpleader.” Id. Its availability is not subject
to the equitable doctrine of unclean hands. Because interpleader was appropriate, and because Alfa deposited the full amount of the life insurance proceeds with the court, the chancery court appropriately released and discharged Alfa from any liability under the policy and as to the interpled funds. See M.R.C.P. 22(b) & cmt.

¶18. However, C.D.’s counterclaims against Alfa present a different issue. To begin with, it is clear that counterclaims are permissible in an interpleader action. See Robertson v. La Linda Inc., 548 So. 2d 1308, 1311-12 (Miss. 1989); Middleton, 480 So. 2d at 1156-57; M.R.C.P. 22 cmt. (explaining that counterclaims by a claimant against the party that initiated the interpleader may be litigated in the second or third stage of an interpleader action); James W. Shelson, Mississippi Chancery Practice § 17:3 (2017) (“All . . . counterclaims . . . are appropriate for a resolution in the course of the interpleader proceedings, and the court will be in error if it refuses to entertain and decide all claims.”); see also Kentucky Cent. Life Ins. v. Vollenweider, 844 S.W.2d 460, 461 (Mo. Ct. App. 1992) (interpleader action to determine rights to proceeds from life insurance policy; one claimant counterclaimed against insurer for misleading the insured “on how to go about changing ownership of the policy”; the appellate court noted that the counterclaim had been stayed pending appeal).

¶19. In this case, Alfa’s motion for summary judgment in the chancery court did not directly address C.D.’s counterclaims. Rather, Alfa’s motion addressed the availability of the interpleader procedure and Alfa’s liability under the insurance policy as to the interpled funds (the proceeds of the policy). Moreover, it is clear that the chancery court’s order granting summary judgment to Alfa did not address the merits of C.D.’s counterclaims. The court’s order expressly stated that C.D.’s countercomplaint was “dismissed as moot.”

¶20. C.D.’s independent claims against Alfa for negligence, fraud, and other torts may or may not have any merit. No court has addressed that issue, which is not before us on appeal. However, C.D.’s counterclaims are not “moot.” They are separate and independent tort claims against Alfa. Moreover, Alfa’s discharge from liability under the terms of the insurance policy did not terminate or bar C.D.’s tort claims. C.D. properly asserted these claims as counterclaims in the interpleader action, and the chancery court’s refusal to entertain the claims was in error. See supra ¶18.

¶21. On appeal, Alfa argues that C.D.’s counterclaims involve distinct issues of fact and law and, thus, are only “permissive counterclaims,” not “compulsory counterclaims.” Alfa also predicts that C.D. “would likely seek discovery as to Alfa and its agents were [he] to proceed on [his] negligence claim.” Alfa argues that, for these reasons, C.D.’s counterclaims “were properly dismissed as moot.” However, characterization of the counterclaims as “permissive” or “compulsory” is irrelevant to the issues in this appeal. Even assuming (solely for the sake of argument) that the counterclaims were not compulsory, that does not render the claims “moot.” Again, C.D. was entitled, under Mississippi Rules of Civil Procedure 13 and 22, to assert counterclaims against Alfa in this interpleader action. That being the case, it was error for the chancery court to dismiss the claims as “moot.”

¶22. In summary, with respect to Alfa, we affirm the judgment of the chancery court insofar as the court permitted Alfa to interplead the defendants and discharged Alfa from liability under the policy and with regard to the interpled funds. However, we reverse and remand the judgment of the chancery court insofar as it dismissed C.D.’s counterclaims against Alfa as “moot.” …

The court, then, goes on to affirm the chancellor’s ruling that C.D. had no authority to change ownership or the beneficiary of the policy. Does that not render His counterclaim moot, since it charged

” … breach of contract, breach of the duty of good faith and fair dealing, negligence, gross negligence, bad faith failure to adjust and pay an insurance claim, tortious breach of contract, and punitive damages. C.D.’s countercomplaint generally alleged, among other things, that he
had paid all premiums on the policy after Annie’s death, that Alfa’s agents or employees had filled out the change-of-ownership forms for him, and that any mistake in making the change of ownership and designation of new beneficiaries was the result of Alfa’s tortious conduct.” (¶7)?

If C.D. had no power to change ownership or the beneficiary, how was he injured by Alfa’s negligent or even willful failure and refusal to allow him to do so?


“Quote Unquote”

April 6, 2018 § Leave a comment

“Let every one of us cultivate, in every word that issues from our mouth, absolute truth. I say cultivate, because to very few people — as may be noticed of most young children — does truth, this rigid, literal veracity, come by nature. To many, even who love it and prize it dearly in others, it comes only after the self-control, watchfulness, and bitter experience of years.”  —  Dinah Craik

“Calmness of mind is one of the beautiful jewels of wisdom. It is the result of long and patient effort in self-control. Its presence is an indication of ripened experience, and of a more than ordinary knowledge of the laws and operations of thought.”  —  James Allen

“In short, honesty is more than a moral principle. It is also a major economic factor. While government can do little to create honesty directly, in various ways it can indirectly either support or undermine the traditions on which honest conduct is based.”  —  Thomas Sowell

April 4, 1968

April 4, 2018 § 6 Comments

Martin Luther King, Jr. was assassinated in Memphis fifty years ago today.

Rev. King’s footprints crossed Mississippi during the Civil Rights Movement. He led a March Against Fear in North Mississippi, visited Jackson, Meridian, Philadelphia , and other locales, was instrumental in “Freedom Summer,” and spread his message of nonviolent change — but unrelenting, inevitable change — across the South. He died a southerner in the South, murdered while encouraging striking garbage-workers in Memphis.

Those of us alive back then recall how he was libeled as  a “Communist,” charged with fomenting Black revolution, and hated because he insisted that America’s unjust, hateful system of Apartheid must end. His message was condemned by white politicians, many of whom capitalized on fear of desegregation among white voters to feather their own political nests.

But King, a martyr to his own cause, has over time prevailed. His remarkable life and untimely death were the catalyst for much change. Much of the racial interaction and Black achievement that we take for granted today would have been unimaginable in 1968.

King was right. History has proven him right.

1968 was a devastating year. In January alone, in Viet Nam the bloody seige of Khe Sanh began, the USS Pueblo was seized by North Korea, and the Tet Offensive rocked America’s confidence in the ever-expanding Viet Nam War. Later in the year, the nation was shocked by the assassination of Bobby Kennedy and unsettled by the violent protests and police reaction in Chicago at the Democratic National Convention. Prague Spring, led by Alexander Dubcek, brought the light of hope to Czechoslovakia in January, only to have it cruelly crushed by Warsaw Pact troops in August. “The Troubles” began in Ireland when police brutally beat protesters in Northern Ireland. Lyndon Johnson announced that he would not be a candidate for reelection as President after losing to Eugene McCarthy in the New Hampshire primary.

It would have been understandable were the Civil Rights Movement to have flickered out in the face of all this trauma, but the flame that Rev. King had lit was strong, and it burned bright, consuming and defeating hate, political expediency, and bigotry in its peaceful heat.

Fifty years along, our progress toward racial peace is not as advanced as Rev. King would have wished, but we are much further along than we would have been able to be without him.

The Honor and Dignity of the Profession

April 3, 2018 § 6 Comments

Not long ago I was asked to say a few words to the Ole Miss Law students who were being sworn in for limited practice in the school’s legal clinics. Alas, I got carried away and said more than a few words, as some of us older lawyers are wont to do. I thought you might find some value in them as you toil about in your daily practice.

You may be asking yourself: Why all this folderol about taking an oath? Why don’t we just get on with it, roll up our sleeves and get to work? Well, I want to give you an idea about it.

When I entered the practice of law nearly 45 years ago, the law was known as a noble profession. A term often heard was that the law was an “honorable profession.” Since then the profession has suffered many bumps and bruises. No need to catalog them here. Misconduct and allegations of misconduct by members of the legal profession from the US Supreme Court to the level of sole country practitioner and everything in between have occurred with dismaying frequency.

Add to this that we are in a cynical era where notions like nobility and honor are openly questioned and even laughed at. So, does this mean that the law is no longer to be considered an honorable profession? Is the concept of honor to be set aside as outmoded and anachronistic?

To decide that we first have to understand what honor is.

One aspect of honor is esteem. We honor and exalt those whose merit makes them worthy of our due regard. Whether the law today still merits the respect and esteem of the public is a subject of debate and analysis beyond the scope of this little talk.

Rather, I would like to focus on the concept of the law as a rule in this nation that relies on the individual honor of its members of its profession and those who invoke it. The law as an honorable profession in the sense that its bedrock and very heartbeat is honor.

And what is honor? Pat Conroy said in The Lords of Discipline that, “I have never had to look up a definition of honor. I knew instinctively what it was. It is something I had the day I was born, and I never had to question where it came from or by what right it was mine. If I was stripped of my honor, I would choose death as certainly and unemotionally as I clean my shoes in the morning. Honor is the presence of God in man.”

Others have said that Honor is like the eye, which cannot suffer the least impurity without damage. It is a precious stone, the price of which is lessened by a single flaw. And this is not to say that honor is easily come by. It has been said that the price of honor can never be too dear, for it is the only thing whose value must ever increase with the price it has cost us.

We think of honor as incorporating Honesty, Fidelity, Candor, Selflessness, Truthfulness, and respect both for the rule of law and the personal dignity and worth of every person, friend and foe alike, with whom we come in contact. We think of an honorable person as one who has integrity, self respect, and dignity. The honorable person is never arrogant or crafty, never seeks an unfair advantage or to lord it over others, never deviates from the truth even when a lie would be to her or her client’s benefit.

Honor is at the very core of what a lawyer and judge must be. Lincoln said

There is a vague popular belief that lawyers are necessarily dishonest…the impression is common, almost universal. Let no young person choosing the law for a calling for a moment yield to the popular belief—resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.

If you will read the Canons of Professional Conduct – our ethical rules – every one is based on the concept of personal honor and honesty.

The founders of our republic recognized the vital importance of honor. In the very last phrase of the Declaration of Independence, they “mutually pledge to each other our Lives, our Fortunes, and our Sacred Honor.” Not just honor, but sacred honor.

In the spirit of our founders lawyers and judges stand guard over and fight to protect individual rights and the Constitution that guarantees them. With the founders we stake our honor – our sacred honor – on that proposition. No other profession does, and no other group of citizens does, save the military and those who swear to preserve, protect, and defend the Constitution.

As for today’s rampant and unfortunate cynicism, C.S. Lewis noted that, “We laugh at honor and are shocked to find traitors in our midst.” Indeed, when we attack and debase the concept of honor, we should expect the vacuum to be filled with the dishonorable and dishonest. You can not scrap a virtue and not expect it to be replaced by a vice.

So that’s why in a few moments you are going to raise your hand and take an oath to represent your clinic clients well and to the best of your ability. To protect their interests and to submit your own interests to theirs. In other words, you are staking your honor on your pledge of fidelity to your client.

If you – or anyone in a legal setting – takes an oath with the intention of not backing it up with honor, then it means nothing, and the law is diminished by that act. The law and the rule of law rely exclusively on the personal honor of everyone who seeks to invoke it.

This small act, this oath, is only among the first of many hundreds, even thousands, that you will take or see being taken over the span of a career in the law. It’s easy to become jaded and complacent about it. But I urge you as you move toward your entry into the legal profession never to lose your personal honor, and never to allow the law to be dishonored.

So yes, this oath is a small thing and a bit of folderol. But it means something. It means a lot. It really, truly does. And I hope each of you believes and lives that along with the thousands of us who serve the law.

No Findings = Reversal

April 2, 2018 § 1 Comment

It’s axiomatic that the chancellor’s conclusions have to be supported by findings of fact.

A recent iteration of that rule is in Gipson v. Jackson, a COA case decided February 13, 2018, in which the court reversed and remanded a case for failure of the judge to make findings supporting an upward modification of child support in excess of the statutory child-support guidelines. Judge Westbrook wrote for the court:

¶9. Gipson argues that the chancellor failed to make specific findings on the record, as required for a modification of child support; yet there was a $200 increase. [Fn 3]

[Fn 3] Jackson asserts that the core issue of the case is whether the chancellor has the authority to increase child-support payments for a noncustodial parent without providing any factual support for his decision or consulting the Mississippi Child Support Guidelines. Jackson further asserts that this issue is an issue of first impression. However, this Court and the Mississippi Supreme Court have addressed child-support modifications involving a noncustodial parent and specific on-the-record findings of fact. See Dailey v. McBeath, 151 So. 3d 1038, 1044 (¶16) (Miss. Ct. App. 2014); Klein v. McIntyre, 966 So. 2d 1252, 1258 (¶20) (Miss. Ct. App. 2007); Wallace v. Bond, 745 So. 2d 844, 847 (¶11) (Miss. 1999).

¶10. This Court has held that “the chancellor must apply the guidelines to make the determination that their application would be unjust.” Evans v. Evans, 75 So. 3d 1083, 1091 (¶31) (Miss. Ct. App. 2011) (citation omitted). But there are exceptions to the guidelines regarding the modification of child support in Mississippi Code Annotated section 43-19-103 (Rev. 2015). This section provides:

The rebuttable presumption as to the justness or appropriateness of an award or modification of a child[-]support award in this state, based upon the guidelines established by [Mississippi Code Annotated section] 43-19-101 [(Rev. 2015)], may be overcome by a judicial or administrative body awarding or modifying the child[-]support award by making a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined according to the following criteria:

(a) Extraordinary medical, psychological, educational or dental expenses.
(b) Independent income of the child.
(c) The payment of both child support and spousal support to the obligee.
(d) Seasonal variations in one or both parents’ incomes or expenses.
(e) The age of the child, taking into account the greater needs of older children.
(f) Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.
(g) The particular shared parental arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent’s homemaking services.
(h) Total available assets of the obligee, obligor and the child.
(i) Payment by the obligee of child-care expenses in order that the obligee may seek or retain employment, or because of the disability of the obligee.
(j) Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.

Miss. Code Ann. § 43-19-103 (emphasis added).

¶11. Jackson presented a Rule 8.05 financial statement to the chancery court, and Gipson testified that he could pay an increase in child support – although the amount of the increase was not discussed. The chancery court discussed the fact that Gipson and his wife traveled frequently and the fact that Gipson had purchased gifts [Fn omitted] for himself and his wife. However, the chancellor made no specific findings as to Gipson’s adjusted gross income and gave no specific reasons for deviating from the guidelines.

¶12. The chancellor stated that while Gipson was not working due to a chronic ankle injury, he could get a part-time job and earn more income. The chancellor also stated the following:

As to the modification of child support, there’s no doubt in this [c]ourt’s mind that this man can work. He is what you call a typical deadbeat. For a man to make only $500.00 a month, and has got all of the toys around his house that he’s got, but they belong to daddy. This [c]ourt wasn’t born yesterday. And he says he likes to fish[.] I do[,] too. It costs me $50.00 to $100.00 every time I go fishing — gasoline, the bait, and everything else. But this man is able to fish, he is able to do carpenter work, he is able to do a lot of other stuff, but he physically cannot hold out to hold a job. This [c]ourt doesn’t believe it. I’m going to set the child support at $350.00 a month, increase it.

¶13. However, we find that the increase in child support was based upon speculative income. In order for there to be a deviation from the guidelines, there must be specific findings of fact on the record. Further, “[w]hen a chancellor makes a ruling without specific findings of fact and a party raises the issue of the amount of child support awarded, this Court will send the issue back to the lower court for the mandatory specific findings of fact as to why the chancellor deviated from the guidelines.” Dailey, 151 So. 3d at 1044 (¶16). As a result, the chancery court’s upward modification of child support is reversed and remanded in order for the chancellor to make specific on-the-record findings that the application of the child-support guidelines would be unjust or inappropriate in this case.

As I have said here before, this do-over could have been avoided:

  • Here, seeing that the judge was going off on somewhat of a tangent, it might have been a good idea to ask the court for leave to develop more testimony that would have supported detailed findings by the judge. And then, at the conclusion of the proof, make a motion to conform the pleadings to the proof, since the issue was tried without objection by consent.
  • If you are tasked with drafting the judgment, make sure you address each and every Ferguson and Armstrong factor addressed by the court, with a brief stab at the court’s findings. When you do that you have documented what was not documented here — that the judge did analyze the proper factors. And this goes for every kind of case in which trial factors are required to be addressed.
  • If for some reason the bench ruling is not transcribed, ask the court before everyone is finally dismissed to order that it be done. If that does not work, file a motion to supplement the record to add the bench ruling.
  • If you can’t get the bench ruling into the record, file a timely R59 motion asking the court to make the appropriate findings.
  • Oh, and it should go without saying that it is your responsibility as counsel for one of the parties to make a record of the applicable factors in your case. The judge can not address them without evidence to support them. If you’re wondering what the applicable factors are, here is a link to lists of them , which I have referred to as “Checklists.”

March 30, 2018 § Leave a comment


Courthouse closed.

A Brief Word About Amendments

March 28, 2018 § 5 Comments

This from footnote 6 to the COA’s opinion in Alexander v. Pitts, decided November 14, 2017:

“If a party fails to seek leave of court or permission of the opposing party prior to amending pleadings, such amendment is improper and will be struck.” D.P. Holmes Trucking, LLC v. Butler, 94 So.2d 248, 255 (¶20)(Miss. 2012).

MRCP 15(a) could not be clearer. Here are the only ways to amend your pleadings:

  1. If no responsive pleading has been filed, you may amend at any time, subject to 2, below;
  2. If no responsive pleading is permitted (see below), and the action has not been placed on the trial calendar, you may amend at any time within thirty days after it is served;
  3. If a R12(b)(6) motion is granted against you, you may amend if the court grants you leave to do so, and subject to the conditions imposed by the court;
  4. In the course of a trial you may ask the court to amend the pleadings to conform to the proof, if you follow the procedure spelled out in R15(b);
  5. If none of the above apply, the only way you can amend only by leave of court or upon written consent consent of the adverse party.

If you don’t follow the procedures above, you are running the risk that the other party will ask at the most inopportune time to dismiss the very pleading that you thought you had shown up to try and into which you had invested all your preparation time. And — worse — if the judge shrugs off the other side’s objection and lets you go on for two or three days, you stand to have to do a re-do after the COA reverses and remands.

Moral of the story: Read R15 and follow the amendment procedures exactly.

A query and a comment: Does anyone know what sort of pleading is one to which “no responsive pleading is permitted,” as mentioned in R15(a)? R81(d)(4) talks about answers not being required in certain chancery matters, unless ordered by the court. I am not aware of any proceeding in which no responsive pleading is permitted.

… And More on R41(b) Dismissal

March 27, 2018 § Leave a comment

Only yesterday we visited the notion of an MRCP 41(b) dismissal in a trial without a jury. The point there was that the motion is one to dismiss, not for a directed verdict.

Today we study the standard that the trial court is to apply in deciding how to rule on the motion.

In In the Matter of the Dissolution of the Marriage of Lewis, decided by the COA on March 20, 2018, Judge Wilson expounded on the topic:

¶13. In a bench trial, after the plaintiff “has completed the presentation of his evidence, the defendant . . . may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.” M.R.C.P. 41(b). A motion for involuntary dismissal under Rule 41(b) is different from a motion for a directed verdict, which is made only in a jury trial. Ladner v. Stone Cty., 938 So. 2d 270, 273 (¶9) (Miss. Ct. App. 2006). “This distinction must be understood, because the standard of review for a dismissal is different than that for a directed verdict.” Id.

¶14. In ruling on a Rule 41(b) motion to dismiss, “[t]he judge must consider the evidence fairly, rather than in the light most favorable to the plaintiff,” as would be the case on a motion for a directed verdict or a motion for summary judgment. Century 21 Deep S. Props. Ltd. v. Corson, 612 So. 2d 359, 369 (Miss. 1992) (emphasis added). That is, the trial judge should give the plaintiff’s evidence only “such weight and credibility as he would ascribe to it if he were making findings of fact and rendering final judgment.” Gray v. Alumax Extrusions Inc., 477 So. 2d 1355, 1356-57 (Miss. 1985). If the judge “would find for the defendant” on the evidence presented, “the case should be dismissed.” Corson, 612 So. 2d at 369. “[T]he motion should be granted if the plaintiff has failed to prove one or more essential elements of his claim or if the quality of the proof offered is insufficient to sustain the plaintiff’s burden of proof.” Buelow v. Glidewell, 757 So. 2d 216, 220 (¶12) (Miss. 2000). “The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff’s evidence were all the evidence offered in the case.” Corson, 612 So. 2d at 369 (emphasis added).

¶15. “This Court applies the substantial evidence/manifest error standards to an appeal of a grant or denial of a motion to dismiss pursuant to [Rule] 41(b).” Id. The trial judge’s “decision on the motion is, for purposes of appeal, treated like any other finding of fact. In other words, his decision will not be disturbed on appeal unless it was manifestly wrong.” Gray, 477 So. 2d at 1357.

Applying the law to the case at hand:

¶16. “The chancellor’s findings of fact about cohabitation [and] de facto marriage . . . are entitled to substantial deference when reviewed on appeal.” Hughes v. Hughes, 186 So. 3d 394, 397 (¶6) (Miss. Ct. App. 2016) (quoting McMinn v. McMinn, 171 So. 3d 511, 518 (¶27) (Miss. Ct. App. 2014)). “We will not reverse a chancellor’s findings regarding the existence or nonexistence of a de facto marriage unless they are manifestly or clearly erroneous.” Id. at 403 (¶26) (citing Burrus v. Burrus, 962 So. 2d 618, 621 (¶15) (Miss. Ct. App. 2006)).

We’ll look at the concept of de facto marriage in a later post. At this point it’s important to bear in mind the standard you need to argue to convince the chancellor to grant — or deny — that 41(b) motion.

No Directed Verdict in Chancery Unless it is a Jury Trial

March 26, 2018 § Leave a comment

Sheila Jones George filed a contempt action against her ex, Mike Jones, charging that he had failed to comply with their divorce judgment. After Sheila rested, Mike’s attorney addressed the court: “Your honor, we would make a motion for a directed verdict, this case be dismissed as not meeting the burden of proof of contempt.” The chancellor did dismiss Sheila’s contempt claim, and she appealed.

In the case of George v. Jones, decided March 6, 2018, the COA reversed and remanded. Judge Griffis explained the difference between a motion for an involuntary dismissal and a motion for a directed verdict, and how invoking the wrong procedure produces error:

¶15. … [W]e note that when Sheila rested her case-in-chief, Mike’s attorney made a motion for “directed verdict.” In a bench trial, the proper motion to be made at this time is a motion for involuntary dismissal under Rule 41(b) of the Mississippi Rules of Civil Procedure. Rule 41(b) is the authority for an involuntary dismissal, and it provides:

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court may then render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.

Mississippi Rule of Civil Procedure 50(a) is the authority for a directed verdict; it is properly made at a jury trial.

¶16. In Crowell v. Butts, 153 So. 3d 684, 687 (¶6) (Miss. 2014), the supreme court ruled:

A motion for directed verdict granted by the court, sitting without a jury, is procedurally a dismissal on the merits under [Rule] 41(b). This Court reviews a grant or denial of a Rule 41(b) motion to dismiss under the substantial evidence/manifest error standard. In considering a motion to dismiss, the trial judge should consider the evidence fairly, as distinguished from in the light most favorable to the nonmovant, and should dismiss the case if it would find for the movant. The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff’s evidence were all the evidence offered in the case. (Internal citations and quotation marks omitted). [Emphasis in this paragraph added]

When you move to dismiss per R41(b), the judge must “consider the evidence fairly” and dismiss if it would rule for the party moving to dismiss based on the proof presented to that point, even without hearing the other side’s proof.

In a jury trial, the court has to consider the evidence “in the light most favorable to the nonmovant” and dismiss if it would find for the movant.

The standard for the court to apply in ruling on either motion is different in a bench trial than it is in a jury trial. Thus, invoking the wrong procedure can lead the judge to apply the wrong standard, and thus lead to error.

If you are confused over the difference, just remember that judges ruling from the bench render judgments; juries render verdicts. A chancellor cannot direct a verdict unless there is a jury; a chancellor can, in a bench trial, dismiss a party’s pleading and render judgment in favor of the other party.


Reprise: Attorney’s Fees in Estates

March 23, 2018 § Leave a comment

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


January 12, 2012 § Leave a comment

If you want to get paid in probate matters, you have got to give the judge the information he or she needs to make an award.

UCCR 6.12 says that you have to provide the court with all the information required in UCCR 6.11, and ” … the nature and effect thereof.” The information required in 6.11 is ” … the nature and extent of the service rendered and expense incurred … ” Fees may not be based on the value of any real property.

The factors that the court must consider in determining what is a reasonable attorney’s fee in an estate or probate matter are discussed in this earlier post.

I will not rule on attorney’s fees in a probate matter unless the attorney has given the interested parties notice of what the amount of fees requested is and what services were rendered. After all, the heirs, beneficiaries or ward are paying out of their own pockets, so they should have some say.

Here are some helpful hints to do it right:

  • Make an itemized statement showing the date you performed each service, the nature of the service, and the amount of time spent. An entry might read: 1-22-12   Preparation of Letters Testamentary   1/4 Hr.
  • If there is no dispute about your fee, either attach the itemized statement as an exhibit to your pleading to close the estate, or incorporate it into the pleading itself. That way, when the interested parties join in or sign it they are documenting that they agree with the fee. Include a statement to the effect that ” … based on the [itemized statement], petitioners agree that a reasonable fee is $ ______.”
  • If there is not agreement about the fee, spell out in the petition to close the estate that there is a dispute as to the fee, and set it for hearing.

If your fee is based on a contingent fee contract for wrongful death or some other claim of the estate, remember that UCCR 6.12 requires that your contract must be approved in advance, and that the ultimate award will be ” … such sum as will be reasonable compensation for the service rendered and expense incurred … ” Your claim for fees must set out (1) the total amount recovered, (2) the nature and extent of the service rendered and expense incurred by the attorney, and (3) the amount, if any, offered to settle before the attorney was hired.

To get an idea of the breadth of the chancellor’s discretion in awarding attorney’s fees in an estate, read In re Estate of McCullough, 58 So.3d 701 (Miss. App. 2009) in which the COA upheld the chancellor’s award of only $36,660 where the attorney had sought $88,550. A similar result was upheld in Barnes, Broom, Dallas & McCleod, PLLC v. Estate of Cappaert, 991 So.2d 1209, 1213 (Miss. App. 2008).

Attorney’s fees are the personal obligation of the fiduciary, but where the attorney’s services have benefited the estate, the fees may be paid out of the estate; conversely, if the attorney’s services have not benefited the estate, the estate should not have to bear the expense. Estate of Collins v. Collins, 742 So.2d 147, 148 (Miss.App. 1999).