“Quote Unquote”
July 5, 2019 § Leave a comment
“The ideal subject of totalitarian rule is not the convinced Nazi or the convinced Communist, but people for whom the distinction between fact and fiction (i.e., the reality of experience) and the distinction between true and false (i.e., the standards of thought) no longer exist.” — Hannah Arendt
“In short, I suspect totalitarianism to be the retribution that befalls all peoples who give free rein to extremists and extremism, who forget the golden rule of political life, which is that ideas are never good except in moderation, and that anything carried to its logical conclusion becomes a menacing caricature of itself.” — George Kennan
“A little patience and we shall see the reign of witches pass over, their spells dissolve, and the people recovering their true sight, restore the government to its true principles. It is true that in the meantime we are suffering deeply in spirit , and incurring the horrors of war and long oppressions of enormous public debt. . . . If the game runs sometimes against us at home we must have patience till luck turns, and then we shall have an opportunity of winning back the principles we have lost.” — Thomas Jefferson, Letter to John Taylor, 1798
To Seal or Not to Seal
July 3, 2019 § 1 Comment
… That is the question. Or was in a recent COA case.
A chancellor had sealed records in a controversial case, and a Jackson-area law firm sought to intervene in the litigation based on its claim that it should have access to certain documents produced in discovery but now kept from it by seal. The chancellor denied the motion to intervene, with the effect that the firm had no basis to access the records, and the law firm appealed.
In Butler Snow and Clark v. Estate of Mayfield, et al., the COA ruled that the chancellor improperly sealed the records.
¶25. “Mississippi law favors public access to public records . . . .” Estate of Cole v. Ferrell, 163 So. 3d 921, 925 (¶18) (Miss. 2012). “Court filings are considered to be public records, unless otherwise exempted by statute.” Id. at (¶15). “The law allows courts to determine when information should be declared confidential or privileged, exempting it from the Public Records Act.” Id. at 929 (¶33).
¶26. As Estate of Cole explains, the Legislature actually requires sealing certain types of records, such as certain youth court records, or confidential financial information. Id. at 924 (¶10). In general, “parties may request that the trial court seal certain documents,” at which point “the trial court may, in its discretion, limit the public’s access to those records.” Id. That discretion in sealing likewise provides us with a deferential standard of review, for in “determining whether the action taken by the court is proper, we review for an abuse of discretion.” Id. at (¶11).
¶27. In analyzing whether to seal a record, the Supreme Court explained that a trial court must “balanc[e] the parties’ competing interests—the public’s right of access versus confidentiality.” Id.; accord Miss. Dep’t of Corr. v. The Roderick & Solange MacArthur Justice Ctr., 220 So. 3d 929, 951 (¶78) (Miss. 2017) (noting the balancing test to weigh the public right of access against the private desire to seal the record from review).
¶28. Recently, the Supreme Court was faced with a sealed divorce file that contained serious allegations of the sexual abuse of underage children. Smith v. Doe, 2016-CA-00875-SCT, 2018 WL 549404 (Miss. Jan. 25, 2018). “Given the allegations raised and evidence presented in this appeal, th[e] Court ha[d] significant public health and safety concerns.” Id. at *5 (¶27). It “therefore remand[ed] the chancellor’s order sealing the court file for the trial court to conduct the balancing test set out in Estate of Cole . . . and determine whether the court file should remain under seal.” Id.
¶29. In this case, there is no indication the chancery court conducted the balancing test in any fashion. The only request to the chancery court was from Mayfield’s family to seal the matter to shield against all public scrutiny. During oral argument, counsel for Mayfield’s family admitted that any need for sealing the record was lessened by the pendency of the federal suit, which injected the allegations back into the public sphere. Despite this admission, the Mayfield family has actively used the seal as a shield against discovery in the federal litigation, to conceal what information it obtained pursuant to the bill of discovery.
¶30. Our review of the record shows that it does not contain confidential information, or indeed any information, that warrants a seal; as set out above, no balancing test was performed prior to sealing. The three-volume record before us primarily contains notices of subpoenas issued, depositions taken, and various other pretrial matters. The record does not contain the responses to the subpoenas duces tecum, deposition transcripts, or other documents obtained in discovery. We therefore reverse and render, unsealing the trial court record. We take no position on whether the information gained in the suit below is discoverable in the federal action, since that will be determined by the magistrate and district court in that pending action.
Lesson here is that the record must reflect that the chancellor conducted the proper balancing test. If you feel that there is an appeal in your case’s future, it would behoove you and your client to ensure that the judge does so and that it is in the record. If you don’t, you might have to explain to your client why the case is headed back to the trial court for a do-over. Clients hate to pay for a do-over, especially one that their lawyer could have avoided.
Oh, and a related point; when the record is sealed in MEC, everybody — and that includes you — is barred from reading anything in the file. Some lawyers came to me and asked me to seal a file, and I did because every attorney in the case agreed. They then discovered to their chagrin that none of the attorneys was receiving copies of pleadings filed and orders entered. They soon scrambled back and urged me to unseal the file, which I did. Better to ask that a particular document be sealed.
Most sealing takes place in domestic cases by agreement. If you don’t have an agreed order, it’s best either to forego sealing or set the matter for hearing and ask the judge to conduct an Estate of Cole balancing test on the record.
Five Post-Trial Motions that Toll The Time for Appeal
July 2, 2019 § Leave a comment
MRAP 4(d) reads in part this way:
(d) Post-trial Motions in Civil Cases. If any party files a timely motion of a type specified immediately below the time for appeal for all parties runs from the entry of the
order disposing of the last such motion outstanding. This provision applies to a timely motion under the Mississippi Rules of Civil Procedure (1) for judgment under Rule 50(b); (2) under Rule 52(b) to amend or make additional findings of facts, whether or not granting the motion would alter the judgment; (3) under Rule 59 to alter or amend the judgment; (4) under Rule 59 for a new trial; or (5) for relief under Rule 60 if the motion is filed no later than 10 days after the entry of judgment. * * *
A R50(b) is one for a directed verdict or JNOV, which means that it applies only in jury trials where the jury is to render a binding verdict. The only time you would see this in chancery is in a will contest with a jury. In the rare and unlikely case of an advisory jury, this rule would not apply (see Advisory Committee Notes).
R52 allows any party to request the court to make specific findings of fact and conclusions of law.
R59 provides two avenues of relief: R59(a) is a motion for new trial, pursuant to which the chancellor may “take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct entry of a judgment;” R59(e), on the other hand, is a motion to alter or amend the judgment.
A R60 motion for relief from judgment filed within ten days of the date of the judgment will toll running of the appeal time; in essence, if it is filed within the ten-day period, it is treated the same as a R59 motion.
More Time for Daddy?
July 1, 2019 § 3 Comments
Bryan Avants and Shawn Hamilton had a child together. After they separated, Shawn, the mother, filed a paternity action seeking custody and other relief. The court entered a temporary order on September 12, 2016, granting the parents joint legal and physical custody, alternating week by week. Following a final hearing, the judge on July 12, 2017, adjudicated Bryan to be the child’s father, awarded joint legal custody, and granted Shawn physical custody. Bryan appealed.
In Avants v. Hamilton, decided May 7, 2019, the COA affirmed. The court’s opinion is an unremarkable Albright analysis. What I found interesting, though, is Judge Tindell’s specially concurring opinion:
¶27. Because Avants and Hamilton had joint legal and physical custody of Jessica with seemingly no problems for nearly a year, and since the Albright factors were seemingly neutral between the parties, [Fn 4] I believe a presumption arose that joint physical custody was in Jessica’s best interest. While I would prefer to reverse the chancellor’s award of primary physical custody to Hamilton and to award joint physical custody to both parents, I recognize that under current Mississippi law there is no standard by which such a presumption may arise in contested cases. Consequently, I feel compelled to write this special concurrence.
¶28. In today’s world, we often hear the term “dead-beat dad.” And while no preference exists as to which parent receives primary physical custody, in most cases primary physical custody goes to the mother. A 2018 national study analyzed the share of parenting time fathers receive in custody arrangements by state. How Much Custody Time Does Dad Get in Your State?, https://www.custodyxchange.com/maps/dads-custody-time-2018.php (last visited May 7, 2019). The study “reflect[ed] cases in which both parents want[ed] custody and no extenuating circumstances—such as criminal convictions or long-distance separation”—existed. Id. Mississippi ranked forty-eighth out of all states, with fathers in Mississippi receiving 23% of the custodial time with their children. Id. “Maybe it’s time to let the old ways die.” [Fn omitted]
[Fn 4] I acknowledge that the chancellor found the Albright factors slightly favored Hamilton. We must keep in mind, however, that the Albright analysis is concerned with choosing a favorite between the two options presented rather than with finding complete neutrality between those options.
In this case, we have a father (Avants) who not only voluntarily agreed to pay child support even though he had joint physical custody, but he also quit his higher paying job as an oilfield worker to work a local job to spend as much time as possible with his daughter.
¶29. A number of states aim to give children equal time with both parents when the parents live in the same geographic area and no other extenuating circumstances exist (such as a history of domestic violence or criminality). When the Albright factors are neutral between both parents, both parents live in the same area, and there are no extenuating circumstances, a presumption that joint physical custody is in the child’s best interest should arise. And when that presumption is not overcome, joint physical custody should be awarded. Mississippi Code Annotated section 93-5-24 (Rev. 2018) provides for an award of joint physical custody. Perhaps the time has come, however, for our appellate courts to set forth the specific factors under which the presumption in favor of joint physical custody arises in contested cases. For these reasons, I specially concur with the majority’s opinion.
Food for thought, indeed. I certainly do agree that the courts should spell out some criteria. What do you think?
Reprise: Some Suggested PSA Provisions
June 28, 2019 § Leave a comment
Reprise replays posts from the past that you may find useful today.
SOME SUGGESTED PROVISIONS FOR PSA’S
January 18, 2012 § 2 Comments
Every lawyer has his or her own idea about what needs to be included or not included in a property settlement agreement (PSA) for an irreconcilable differences (ID) divorce. Here are some provisions I have seen in PSA’s through the years that you might find helpful in specific instances.
Protection from debts incurred by the other party:
Debts. If either party has made any debt in the name of or against the credit of the other, the party making such debt shall be solely responsible to pay it promptly and in due course, and to indemnify the other. There are no other joint debts of the parties. Each party shall be solely responsible to pay the debts incurred by him or her in their own name. From and after the date of this agreement, neither will incur any debt in the name of or against the credit of the other, and neither will do any act or thing to impair the credit of the other. Each will indemnify and hold the other harmless for his or her obligation to pay any debt provided for in this Agreement.
Attorney’s fees:
Attorney’s Fees and Costs. Husband and Wife each agree to pay his or her own separate attorney’s fees incurred in obtaining a divorce on the sole ground of irreconcilable differences.
Where other documents will be necessary to finalize the entire settlement:
Execution of Documents. Husband and Wife each agree to execute and deliver promptly any and all documents, papers, agreements, assignments, titles, bills of sale, contracts, deeds, Qualified Domestic Relations Orders (QDRO’s), and other papers of every kind and nature whatsoever deemed necessary by the other to effect the spirit and intent of this Agreement.
To confirm and ensure that there are no unwritten or side agreements:
Entire Agreement. This Agreement constitutes the entire agreement between the parties, and each acknowledges that there are no other or further agreements not expressly included herein. This Agreement is contractual, and not merely a recital. The parties agree that no part of the consideration for this Agreement is any promise, inducement, representation, or agreement to obtain or maintain any divorce action in any Court. Each party acknowledges that this Agreement is entered into freely and voluntarily, without force, duress or influence by any person.
Release of all claims:
Final Settlement and Release of all Claims. Husband and Wife acknowledge that they have read this Agreement and carefully considered the same, and do further acknowledge that this Agreement permanently and finally resolves all marital and personal disputes between them, including, but not limited to, any and all claims for alimony, personal injury, defamation, invasion of privacy, torts of every kind and nature, and division of property rights between the parties hereto, and they do hereby mutually release each other from all claims that each has against the other, other than as specifically set forth in this Agreement, .
Where the parties want the agreement to be enforceable whether or not approved by the court*:
Approval by Court. The parties agree and stipulate that their Agreement shall be made a part of, and shall be incorporated into the Court’s Judgment of Divorce on the ground of irreconcilable differences. The parties understand and acknowledge that, although this Agreement is subject to approval by a court of competent jurisdiction in order for it to be incorporated into and made a part of any Judgment of Divorce between them, it shall nonetheless be a binding and lawful contract between them, and that its enforceability shall not be affected in any way by its approval or non-approval by any court in connection with any divorce action between them. If either party files any contest to a divorce between them, this Agreement shall nonetheless be enforced in all of its terms.
A useful provision to ensure that there are no open-ended obligations:
Date of the Agreement and Time to Perform. The date of this agreement shall be the date when it has been executed by both parties. If no specific time limit is stated for taking any action prescribed in this agreement, then the parties agree that all such actions will be accomplished in a reasonable time, but not later than thirty (30) days from the date of entry of any judgment of divorce between the parties on the sole ground of irreconcilable differences.
Where one party is not represented:
Representation. Husband is represented by [attorney]. Wife is not represented by an attorney, and she is representing herself, in connection with the execution of this agreement and in connection with any divorce proceeding between the parties. Wife is fully competent to do so, and she is under no legal or other disability. Wife understands that the law firm of [attorney] represents Husband alone, and Wife further acknowledges that she has relied on her own best judgment in connection with the execution of this agreement and in connection with any divorce proceeding between the parties, and that she has neither received, nor expects to receive, any counsel or advice from Husband’s attorney. Wife understands that she is and has been free to consult with any attorney at any time in connection with the execution of this agreement and in connection with any divorce proceeding between the parties. Wife understands that she should not sign this Agreement unless and until she understands all of its provisions in full.
Clarification that tax advice has not been rendered:
Tax Advice. The parties acknowledge and understand that there may be certain tax consequences pertaining to this Agreement, and that each of them should obtain independent tax advice from qualified tax accountants or tax counsel prior to signing. Husband acknowledges that he has not received tax advice from his attorney in connection with this Agreement and a divorce.
Closing the door on a party claiming later that the property should have been appraised:
Fair Division. The parties agree that this Agreement is a fair division of their assets and a fair allocation of debt between them. They acknowledge that the most accurate method of determining values of assets would be to have them appraised, but they agree to save time and money as to values by relying on their own best judgment.
If a former name is to be restored, it is a good idea to include that agreement in the PSA:
Name Change. Wife may, at her sole election, have her name changed to a name of her choosing in any final Judgment of Divorce between the parties.
There is no guarantee that any of these provisions will be effective in any given court. I am offering them as a suggestion for points you might want to cover in your own PSA’s. There are certainly better or other ways to state the same points.
_______________
* “Today we hold that a property settlement agreement executed in contemplation of a divorce based upon irreconcilable differences is unenforceable when one party withdraws from the irreconcilable differences proceeding and seeks a divorce on grounds other than irreconcilable differences. Much confusion may be avoided by inserting appropriate language within the property settlement agreement which specifically addresses this contingency … the contract should specify, with particularity, within its four corners, whether it is to be limited to an irreconcilable differences divorce or whether it is intended to be binding in a divorce granted on any other grounds.” Grier v. Grier, 616 So.2d 337, 341 (Miss. 1993) [Emphasis added]. The unmodifiable (i.e. property settlement) provisions of the PSA may be enforced by the court sans a divorce, but the modifiable (i.e. child support and custody and periodic alimony) issues may not.
Reminder About the Chancery Judges’ Benchbook
June 26, 2019 § 1 Comment
Last month I posted that the Mississippi Judicial College is unlocking the Benchbook for Mississippi Chancery Judges so that it will be accessible to all.
So I am reminding you that you will be able to access this great resource beginning July 1 at this link.
When is Recusal Required in a Contempt Case?
June 25, 2019 § Leave a comment
Shanna Hayes was found in constructive criminal contempt by the chancellor for refusing to allow her ex-husband his court-ordered visitation. On appeal, she argued that the judge erred by not recusing himself. In the case of Hayes v. Hayes, decided May 7, 2019, at ¶27, the following statement appears:
“We do find that she was in a position to request that the trial judge recuse himself; rather, she waived that opportunity. Shanna admittedly did not object until after the trial court rendered its decision. In fact, Shanna allowed the trial court to adjudicate her rights and failed to file a motion asking the judge to recuse. “The failure to seek recusal generally is considered implied consent to have the judge go forward in presiding over the case.” Latham v. Latham, 261 So. 3d 1110, 1113 (¶9) (Miss. 2019) (citing Rice v. State, 134 So. 3d 292, 299 (¶16) (Miss. 2014)); see also Tubwell v. Grant, 760 So. 2d 687, 689 (¶8) (Miss. 2000) (holding where the party knew of the grounds for the motion or with the exercise of reasonable diligence may have discovered those grounds, and where that party does not move timely prior to trial, the point will be deemed waived). Therefore, we take the same position as the majority court in Latham and find that because Shanna failed to object to the judge’s recusal and preserve the issue for appeal, any assignment of error relative to that issue is waived. See Latham, 261 So. 3d at 1115 (¶20).”
To me, that statement is somewhat misleading. It appears to suggest that you have the right in every constructive criminal contempt case to ask the court to recuse. If that’s what it is trying to say, that’s inaccurate, as we will see. But first, let’s consider the two species of criminal contempt. There is direct criminal contempt, which is contemptuous conduct committed in the presence of the court, and it may be dealt with immediately. And there is constructive criminal contempt, which is contemptuous conduct that occurs outside the presence of the court, and it requires that the defendant be given notice of the alleged misconduct and a hearing.
Most constructive contempt occurs between the parties, as above when Ms. Hayes denied her ex his visitation rights. It doesn’t make any sense that a judge should have to recuse in that kind of case. But what about where the judge generates the case? A possible example might be where a deputy overheard an angry litigant in the hallway, outside the judge’s presence, mutter to a friend, “I’m going to kill that judge for that,” and the deputy reports it to the judge, who initiates a contempt action.
Justice Maxwell, wrote a helpful specially concurring opinion in the MSSC’s Latham v. Latham, decided January 17, 2019, in which he fleshes out the distinction:
¶27. I agree with the majority that, by not requesting that the chancellor recuse, Roger has waived this issue on appeal. But given Roger’s argument, I find it would be helpful to Roger—as well as the bench and bar—to explain why, in this particular constructive criminal-contempt case, Roger had to request the chancellor recuse to preserve this issue.
¶28. Part of Roger’s argument is that recusal could not be waived. He suggests it was the chancellor’s duty to recuse sua sponte given the nature of the contempt. As Roger sees it, our caselaw mandates judges recuse in every case involving constructive criminal contempt. Roger’s view hinges on his reading of two cases—Cooper Tire & Rubber Co. v. McGill, 890 So. 2d 859, 868 (Miss. 2004), and In re Smith, 926 So. 2d 878, 888 (Miss. 2006). He argues that, when read together, the cases “extend” the requirement to recuse sua sponte in any case involving constructive criminal contempt. But a closer look shows that neither case alters this Court’s well-established standard for when a judge must recuse in a constructive criminal-contempt case. Instead, both cases maintain that “[i]t is necessary for that individual to be tried by another judge in cases of constructive contempt where the trial judge has substantial personal involvement in the prosecution.” Smith, 926 So. 2d at 888 (emphasis added) (quoting In re Williamson, 838 So. 2d 226, 238 (Miss. 2002)); see also Cooper Tire, 890 So. 2d at 869.
¶29. In other words, it is not simply the nature of the contempt that mandates recusal. Indeed, the constructive criminal nature of the contempt is just part of the inquiry. The judge must also have “substantial personal involvement in the prosecution” to trigger the due process requirement that the matter be tried by another judge. Corr v. State, 97 So. 3d 1211, 1215 (Miss. 2012) (quoting Graves v. State, 66 So. 3d 148, 151 (Miss. 2011)). “Examples of ‘substantial personal involvement in the prosecution warranting recusal include cases where the trial judge acts as a ‘one-man grand jury;’ where the trial judge is ‘instrumental in the initiation of the constructive-contempt proceedings;’ and where the trial judge ‘acts as prosecutor and judge.’” Id. (quoting Graves, 66 So. 3d at 154). E.g., Corr, 97 So. 3d at 1215 (holding that the chancellor had substantial personal involvement because he initiated the contempt proceeding when he issued show-cause orders); In re Williamson, 838 So. 2d at 238 (holding that the chancellor had substantial personal involvement because he was a material witness in the contempt proceeding).
¶30. Here, Roger does not even argue the chancellor had substantial personal involvement in the prosecution of the contempt proceeding—a proceeding admittedly initiated by his wife. Nor does the record support such a finding. So the chancellor was not required to recuse sua sponte. As the majority explains, recusal was discretionary. And the chancellor can hardly be said to have abused his discretion by not recusing when he was never asked to do so.
That’s about as clear a statement as one could hope for on the issue.
A Pure Tort Case in Chancery Court
June 24, 2019 § Leave a comment
Jhonte Wiggins received $350,000 in a personal-injury settlement. Almost all of the money wound up in accounts of his fiancé, Chasity Anderson. Jhonte became seriously ill and died. His mother, Darnice Wiggins, was appointed administratrix of her son’s estate, and, as administratrix, Darnice sued Chasity for conversion. The chancellor granted summary judgment, and Chasity appealed claiming that chancery court lacked subject matter jurisdiction.
The COA affirmed in Anderson v. Wiggins, decided May 14, 2019. Here is how Judge Greenlee’s opinion addressed the issue:
¶8. Anderson argues that chancery court was not the proper court in which to file a claim for conversion. She asserts that the court lacked subject-matter jurisdiction over the claim. “The question of subject matter jurisdiction is an issue of law to which this Court must apply a de novo standard of review.” In re Adoption of J.D.S., 953 So. 2d 1133, 1136 (¶11) (Miss. Ct. App. 2007).
¶9. Our State’s Constitution limits chancery-court jurisdiction:
The chancery court shall have full jurisdiction in the following matters and
cases, viz.:
(a) All matters in equity;
(b) Divorce and alimony;
(c) Matters testamentary and of administration;
(d) Minor’s business;
(e) Cases of idiocy, lunacy, and persons of unsound mind;
(f) All cases of which the said court had jurisdiction under the laws in
force when this Constitution is put in operation.
Miss. Const. art. 6, § 159.
¶10. The matter before us is a conversion claim. “Although property of which conversion is alleged is in the custody of a chancery court,” Georgia-Pac. Corp. v. Blakeney, 353 So. 2d 769, 772 (Miss. 1978) (quoting 18 Am. Jur. 2d Conversion § 135 (1955)), an action for conversion alone is best heard in the circuit court. But if “there is one issue of exclusive equity cognizance, that issue can bring the entire case within subject matter jurisdiction of the chancery court and that court may proceed to adjudicate all legal issues as well.” Newton v. Brown, 198 So. 3d 1284, 1288 (¶20) (Miss. Ct. App. 2016) (internal quotation marks omitted).
¶11. Wiggins’s complaint only asserts a claim for conversion. She does not indicate any other tort or any other claim for the chancery court to consider. She asserts that the protection of the estate’s assets entitles her to jurisdiction within the chancery court. She contends that Anderson cannot now claim a lack of subject-matter jurisdiction because the chancery court already rendered its decision. But jurisdictional challenges may be raised at any point during litigation, as well as on appeal. Pierce v. Pierce, 132 So. 3d 553, 560 (¶14) (Miss. 2014). Mississippi Rule of Civil Procedure Rule 12(h)(3) provides that “[w]henever it appears by suggestion that the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action or transfer the action to the court of proper jurisdiction.” Additionally, our state constitution determines the ability of appellate courts to reverse a judgment of a chancery court when it lacks jurisdiction:
No judgment or decree in any chancery or circuit court rendered in a civil cause shall be reversed or annulled on the ground of want of jurisdiction to render said judgment or decree, from any error or mistake as to whether the cause in which it was rendered was of equity or common-law jurisdiction; but if the Supreme Court shall find error in the proceedings other than as to jurisdiction, and it shall be necessary to remand the case, the Supreme Court may remand it to that court which, in its opinion, can best determine the controversy.
Miss. Const. art 6, § 147.
¶12. At the summary-judgment hearing, the chancery court discussed the jurisdictional concerns and found that it had jurisdiction over the claim. Specifically, it found that under Wiggins v. Perry, 989 So. 2d 419, 430 (¶28) (Miss. Ct. App. 2008), Anderson could not complain about subject-matter jurisdiction after the court ruled on the motion for summary judgment.
¶13. In that case, Wiggins did not raise the issue of subject-matter jurisdiction until after the chancery court granted summary judgment. Therefore, on appeal, our court was unable to reverse the case on the issue of subject-matter jurisdiction alone. Id. at 430-31 (¶28). We ultimately reversed the decision on other grounds and remanded the case with instructions that it be transferred to the proper court. Id. at 433 (¶47).
¶14. In the present case, the chancery court held:
Now, [the Mississippi Constitution] says a lot. And our case law says even more. In one case . . . it is stated that: “Because a party did not raise the issue of subject matter jurisdiction until after summary judgment had been granted in favor of the adverse party, the reviewing court could only reverse for lack of subject matter jurisdiction where there was also some other trial court error warranting reversal.”
The chancery court found that subject-matter jurisdiction was never an issue before the motion for summary judgment. In her answer to the conversion complaint, Anderson asserted lack of subject-matter jurisdiction as an affirmative defense. But at no point thereafter did she actively pursue that defense. In fact, she never filed any motion based on those grounds. As in Wiggins, without some other error, precedent prevents us from reversing this case on
the issue of subject-matter jurisdiction alone in this situation. [Fn 1]
[Fn 1] 3 Jeffrey Jackson, Mary Miller, and Donald Campbell, Encyclopedia of Mississippi Law § 19:188 (2d ed. 2018) (“Ordinarily, a court of appeals could reverse for lack of subject matter jurisdiction in the trial court even where the parties may not have raised the issue. Section 147 of the Mississippi Constitution provides that the supreme court is without power to reverse where the only error found is ‘want of jurisdiction to render said judgment or
decree, from any error or mistake as to whether the cause . . . was of equity or common-law jurisdiction.’”); James W. Shelton, Miss. Chancery Prac. § 2:7 (2018) (“[T]he Constitution prohibits the Supreme Court from reversing a case where the only error is that the case was brought in chancery court when it should have been brought in circuit court, or vice versa.”); c.f. Waits v. Black Bayou Drainage Dist., 186 Miss. 270, 185 So. 577, 578 (1939) (“Section 147 of the Constitution has no application. It provides that no cause shall be reversed by the Supreme Court on the ground alone of a mistake in the trial court as to whether it is of law or equity jurisdiction. The trouble here is that neither the chancery court nor the circuit court had jurisdiction of this cause, as we will undertake to demonstrate. In the case of Indianola Compress & Storage Co. v. Southern R.R. Co., 110 Miss. 602, 70 So. 703, [704 (Miss. 1916),] [s]ection 147 of the Constitution applied for it was not a question of jurisdiction, but a mistake in jurisdiction.”).
I posted about a circuit judge reforming a deed on June 5, 2019.
The Better Chancery Practice Blog 