RUNOFFS IN CHANCERY ELECTIONS TODAY

November 23, 2010 § Leave a comment

In District 10 (Forrest, Lamar, Pearl River and Perry Counties), for Place 2, to replace Judge Sebe Dale. Dawn H. Beam of Sumrall faces Scott Phillips of Columbia. 

In District 13 (Covington, Jefferson Davis, Lawrence, Simpson, and Smith Counties), incumbent Judge Larry Buffington of Collins is in a runoff with David Shoemake of Collins.

FAMILY VIOLENCE AND ITS IMPACT ON CUSTODY

November 22, 2010 § 3 Comments

MCA § 93-5-24(9)(a)(i) sets out some important language that you need to be aware of the next time you are involved in a child custody dispute.  It reads in part:

“In every proceeding where the custody of the child is in dispute, there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence.  The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party.  The court shall make written findings to document how and why the presumption was or was not triggered.”   

A preponderance of the evidence is required to overcome the presumption.  In making a determination whether the presumption is rebutted, the court is required to consider all of the following:

  1. Whether it would be in the child’s best interest to award the perpetrator custody because of the other parent’s absence, mental illness, substance abuse or other circumstances that affect the best interest of the child;
  2. Whether the perpetrator has successfully completed a “batterer’s treatment program;”
  3. Whether the perpetrator has successfully completed an alcohol or drug abuse counselling program if deemed appropriate by the court;
  4. Whether the perpetrator has successfully completed a parenting class if deemed appropriate by the court;
  5. Whether the perpetrator has been placed on probation or parole, and whether he or she is subject to a restraining order, and his or her compliance with its terms; and
  6. Whether the perpetrator has committed any further acts of domestic violence.

If both parents have committed family violence, the court may award custody to a third party or to the parent whom the court finds to be less likely to continue to perpetrate family violence, and the court may order the custodial parent to complete a “treatment program.”

The court may not require a victim of domestic or family violence to attend counselling, individually or with the perpetrator, as a condition of custody.

In J.P. v. S.V.B., 987 So.2d 975 (Miss. 2008), the court upheld a finding of family violence where a father slapped his daughter several times and made her nose bleed.

In Lawrence v. Lawrence, 956 So.2d 251 (Miss. App. 2006), the court of appeals remanded a child custody adjudication where the record established that the father had a history of violence.  The court directed the chancellor to apply and comply with the statute.

In C.W.L. v. R.A., 919 So.2d 267 (Miss. App. 2005), the court upheld a chancellor’s finding that the statute was inapplicable where the proof showed a few incidents of yelling and screaming, slapping and one episode of choking, but no serious or even moderate injuries.

Interestingly, MCA § 93-5-24(4) provides that “There shall be a presumption that joint custody is in the best interest of a minor child where both parents have agreed to an award of joint custody.”  Does this mean that the parents can cancel the family violence presumption by agreeing to a joint custody arrangement?  I don’t find any case law on the point.

As a practice matter, you need to know up front whether your client will be vulnerable to the presumption.  Has he had a conviction for domestic violence?  Has he been put under a County Court TRO?  Has he been convicted of assault on a family member?  Has there been Youth Court or DHS involvement?  Has he gotten carried away in his discipline of the children or in an argument with his wife? 

If you detect problems early enough, you can take proactive measures to get your client counselling or anger management classes or some form of treatment that will give the chancellor a reasonable basis to make a finding that your client has rebutted the presumption.

TRIBUTE TO JUDGE LACKEY

November 21, 2010 § Leave a comment

It was Judge Henry Lackey of Calhoun City whose refusal to be corrupted and courageous cooperation with law enforcement brought to justice some of the most powerful trial lawyers in this country. 

This tribute from the Calhoun County Journal:

Judge Lackey is truly one-of-a-kind

“There are two things you need to be a judge,” Judge Henry Lackey said. “A lot of gray hair to look distinguished and hemorrhoids to look concerned.”
Judge Lackey was speaking to a large gathering at the Oxford Convention Center that turned out to honor him upon his upcoming retirement after 17 years as circuit court judge and even longer as public servant.
Judge Lackey is less than two months away from entering retirement, but one look at this week’s Journal and you would see he’s busier than ever.
He was “roasted and toasted” at the Oxford Convention Center last week shortly after being honored by the Mississippi Supreme Court for his years of service on the bench.
Another reception is planned for Dec. 10 at First Baptist Church in Calhoun City.
This Thursday, Judge Lackey will once again be auctioning off Christmas items at the City Sidewalks Celebration at the Methodist Corner on the Calhoun City Square. Saturday night he is the featured entertainment at the Vardaman Sweet Potato Festival Banquet.
In between all of this he is still managing his day job as Circuit Court Judge for District Three. He’s spent all of this week holding court in Holly Springs.
The honors for 75-year-old Judge Lackey continue to pour in due in part to his role in one of the biggest legal crackdowns in recent history – the downfall of famed trial lawyer Dickie Scruggs and several of his colleagues.
“I’ve received praise and accolades that I don’t deserve,” Judge Lackey told me a few months back. “It’s like praising the sheriff for not stealing. It’s your job.”
Judge Lackey’s “integrity and intrepidness” in the case are well documented in Curtis Wilkie’s new book “The Fall of the House of Zeus” – a must-read according to my wife Lisa.
But as all the attention still pours in, and rightfully so, Judge Lackey still thinks of himself as the simple, “country lawyer” who still lives “within 300 yards of where he discovered America,” and that’s why he is so treasured here in Calhoun County.
A visit with him and you hear no mention of Dickie Scruggs. He talks of his “wonderful upbringing” in Calhoun City, working at his family’s business – the Ben Franklin 5 and 10 Cent store on the Calhoun City Square – and the endless list of fascinating people he grew up with such as Clarence “Dummy” Martin, Ray “Funnyman” Tolley, John Pittman, Mr. Mac, Monk and Big Dog.
I’ll never forget sitting in his office and him telling me of his experience when Robert Wardlaw, the world’s tallest man at 8’9″, visited Calhoun City.
One of the best story tellers I’ve every known, Judge Lackey is always worth the price of admission at any event he’s attending. I certainly wouldn’t let an opportunity to enjoy his tales or company pass me by.

The homespun Judge Lackey deserves our accolades.  As it is with Judge Lackey, I hope it will be said of all of us at the end of our careers that we adhered to the highest ethical principles and upheld the honor and dignity of the law.

Thanks to Tom Freeland for the link to this tribute.

 

NEW DEAL SALAD

November 21, 2010 § Leave a comment

If it seems that I have a lot of shrimp recipes, it’s because for years we were able to buy fresh and IQF seafood from Brian Watts, who would bring it up from the coast every other Wednesday.  We were able to buy shrimp, crab, oysters and fish like grouper, trout, flounder and snapper, and I always had good gulf seafood on hand.  Katrina put him out of business for a time, but he picked back up — until BP’s carelessness put him out of business again, I hope not for good.  BP hired Brian and his charter boat The Undertaker, to work for them during the cleanup.  Now that the cleanup is winding down and gulf seafood is making a comeback, maybe Brian will get back into the business of supplying his Meridian friends with delicacies from the sea. I hope so.  

This is a super-easy recipe that you will want to serve to company.  It’s great in the summer on the patio with a chilled sangria, but it will do just as well in cold weather with a riesling. 

NEW DEAL SALAD

1 Lb. Scallops

1/4 Tsp. lemon juice

Pinch of salt

½ Lb. med. shrimp, deveined

1 Tsp. salt

1/4 Tsp. red pepper

1 Avocado (ripe), peeled and cut into pieces

½ Cup French Dressing (recipe below)

½ Cup celery, thinly-sliced

1 Cucumber, peeled and minced

1/4 Cup green olives, sliced and pitted

Fresh spinach

Rinse the scallops in a sauce pan. Add cold water to cover and lemon juice and pinch of salt. Bring to a boil. Drain and transfer to a bowl.

Rinse and boil the shrimp in cold water to cover, with salt and red pepper.

Drain and add to scallops. Add the avocado. Toss with ½ cup French dressing, celery, cucumbers and green olives.

Chill and serve on a bed of fresh spinach.

French Dressing for New Deal Salad

1 3-oz. package cream cheese, softened

1 Tsp. onion, minced

1 Tsp. salt

½ Tsp. dry mustard

2 Tbsp. parsley, chopped

Freshly-ground pepper to taste

½ Cup extra-virgin olive oil

1 1/4 Tbsp. vinegar

Cream the cheese. Add remaining ingredients and mix. Gradually beat in oil and vinegar.

IF BUSINESS IS SLACK, YOU MIGHT TRY CHANNELING

November 19, 2010 § Leave a comment

Channeling is communication with spirits.  Some people claim to be able to communicate with the dead or others in the spirit realm, and share the communications with those here on the terrestrial plane.

That’s what an Arizona lawyer did.  She convinced at least one client that she could “channel” messages from his dead spouse in the deceased spouse’s estate.  She told the client that she was receiving communications from the deceased directing them to take this action and that, and she was so convincing that she continued to represent the client for three years. 

Things got a little more complicated after she persuaded her client that his deceased spouse wanted the attorney and client to have sex, and they did.  The client filed a bar complaint charging that the lawyer was exercising undue influence.

You can read what the Arizona courts did discipline-wise here. 

Now, I am not suggesting you carry channeling beyond the bounds of propriety, assuming that channeling is itself, after all, within the bounds of proriety.

I am merely mentioning another possible career enhancement, not too far removed from the common practice of Mississippi lawyers to try to predict what the chancellor will do by hitting the ouija board with their clients.  Uh, most of you still do that, right?

If you are going to get into the channeling business, please try to make it obvious to the court that your behavior is channeling and not imbibing. 

And another thing you need to keep in mind: there are risks involved in channeling.  There is always the danger of out-of-control séances:

“QUOTE UNQUOTE”

November 19, 2010 § Leave a comment

Dave Barry

“If a woman has to choose between catching a fly ball and saving an infant’s life, she will choose to save the infant’s life without even considering if there are men on base.”  —  Dave Barry

“There’s so much comedy on television. Does that cause comedy in the streets?”  —  Dick Cavett

“I am not a vegetarian because I love animals; I am a vegetarian because I hate plants.”  —  A. Whitney Brown

 

SWEEPING DUSTBUNNIES

November 18, 2010 § 2 Comments

Have you ever noticed that mistakes and missteps seem to pile up in some cases despite your best efforts, just like those dustbunnies that pile up under that buffet in your dining room no matter how hard you try?

The case of Estate of Bellino v. Bellino, decided by the Court of Appeals on November 2, 2010, is one of those “dustbunny” cases, and it merits your attention.  For ease of following this, we’ll mark the dustbunnies as they accrue with the international dustbunny symbol: ¤.   

Stephen and Margaret Bellino were married in 1974.  During the marriage, Stephen inherited $200,000 and opened a securities account with A. G. Edwards (AGE).  In 1995, he and Margaret executed a joint account agreement declaring the account to be a joint tenancy with right of survivorship.

Alas, the marriage foundered, and the erstwhile blissful couple faced off in court.  Their marriage ended May 2, 2006, with entry of a final judgment of divorce. 

And that is when the discombobulating deluge of dustbunnies (¤) began to develop.

It seems that the divorce judgment made no mention of the AGE account.  That would be the first ¤. 

Stephen became aware of the problem when he tried to make a withdrawal and was refused by AGE, which took the position that it could not allow any withdrawals until the court addressed the ownership issue.  Another ¤.

Stephen filed an MRCP Rule 59 motion to alter or amend the judgment to address the oversight.  Only problem is that he waited until May 15, 2006.  That would be a major ¤ because it was filed more than ten days after entry of the judgment, and so the motion was time-barred. 

In all the hubbub surrounding the issue, Stephen never got around to changing ownership of the account.  This is one of those ¤’s that spawns lots of other ¤’s.

Before the issue could be resolved by the judge, Stephen died on June 18, 2006.  Regrettable as it is, this development was also a ¤.

Stephen’s estate was duly opened in July.  There is no mention of the estate being substituted as a party in the divorce action under MRCP 25.  Probably a ¤.

In November, the attorney for the estate approached the chancellor and, without any notice to Margaret or her attorneys, obtained an order directing AGE to pay the funds to the estate.  No question this was a ¤. 

To compound matters, the attorney for the estate never filed the order (or, it appears, any motion therefor) in either the estate or divorce file, and never served it on Margaret’s attorneys.  That would be ¤ ¤ ¤.

They’re beginning to pile up, aren’t they?

The chancellor set aside the order (he was likely not happy with the way it had been handled) and eventually ruled that the account was Margaret’s.  A ¤. 

At this point the attorney for the estate realized that the dustbunnies were getting out of hand, so he started trying to sweep them up.  The problem is that when you sweep dustbunnies it tends to scatter them and they seem to proliferate, which is exactly what they did.

The attorney for the estate filed an appeal.  Now, this is really a dustbunny because the issues are fairly straightforward and not really in doubt.  Score another ¤. 

Right off the bat the court of appeals criticized the attorney for the estate for not filing a statement of issues after being asked not once but several time by the appellate court to do so.  That would be another ¤ ¤ ¤.  The court even thought about not considering his brief, which is, of course a ¤.

The court of appeals ruled that Margaret got the money because Stephen never changed the account and it was hers by survivorship.  A predictable ¤.

Stephen’s estate will be stuck with the cost of cleaning up all these dustbunnies, and will have nothing to show for it.  That’s a ¤ right there.  In the alternative, the estate could insist that its attorney bear the cost of the appeal, which would be his own personal ¤.

So there you have it.  Too many dustbunnies and before you know it you have a mess too big to clean up.

JUDGE ROBERTS’ PRIMER ON ADVERSE POSSESSION

November 17, 2010 § 3 Comments

In the case of Dean vs. Slade, et al., rendered November 9, 2010, Judge Larry Roberts of the Court of Appeals laid out a template of authority you should keep on hand for your next adverse possession case.  Although the decision does not touch on all of the adverse possession factors, it touches on some important authority that you can use to your advantage.  I simply stripped the material below right out of Judge Roberts’ opinion, making a couple of minor editorial changes.

THE ADVERSE POSSESSION FACTORS

MCA § 15-1-13(1) (Rev. 2003) provides the following: Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title[.] Thus, the party claiming adverse possession must prove by clear and convincing evidence that his/her possession was “(1) under claim of ownership; (2) actual or hostile; (3) open, notorious and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Stringer v. Robinson, 760 So. 2d 6, 9 (Miss. Ct. App. 1999) (citing Rice v. Pritchard, 611 So. 2d 869, 871 (Miss. 1992)). “The ultimate question is whether the possessory acts relied upon by the would be adverse possessor are sufficient enough to place the record title holder on notice that the lands are under an adverse claim of ownership.” Id. (citing Johnson v. Black, 469 So. 2d 88, 90-91 (Miss. 1985)).

THE EVIDENTIARY STANDARD

Clear and convincing evidence has been defined as follows: that weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact-finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case. Moran v. Fairley, 919 So. 2d 969, 975 (Miss. Ct. App. 2005) (quoting Travelhost, Inc. v. Blandford, 68 F.3d 958, 960 (5th Cir. 1995)). “Clear and convincing evidence is such a high standard [of proof] that even the overwhelming weight of the evidence does not rise to the same level.” Id. (citing In re C.B., 574 So. 2d 1369, 1375 (Miss. 1990)).

CONFLICTING EVIDENCE

Absent a finding of an abuse of discretion or manifest error, a chancellor is the sole judge of the credibility of witnesses and the weight to give to the evidence. Webb v. Drewrey, 4 So. 3d 1078, 1081 (Miss. Ct. App. 2009).

ACTUAL OR HOSTILE

“Actual possession is ‘effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.’” Warehousing Mgmt., LLC v. Haywood Props., LP, 978 So. 2d 684, 688 (Miss. Ct. App. 2008) (quoting Wicker v. Harvey, 937 So. 2d 983, 993-94 (Miss. Ct. App. 2006)). The adverse possessor must hold the property without the permission of the true title owner since “permission defeats adverse possession.” Gillespie v. Kelly, 809 So. 2d 702, 706-07 (Miss. Ct. App. 2001) (citing Myers v. Blair, 611 So. 2d 969, 971 (Miss. 1992)). “Adverse use is defined as such a use of the property as the owner himself would exercise, disregarding the claims of others entirely, asking permission from no one, and using the property under a claim of right.” Peagler v. Measells, 743 So. 2d 389, 391 (Miss. Ct. App. 1999) (quoting Cummins v. Dumas, 147 Miss. 215, 113 So. 332, 334 (1927)).

OPEN, NOTORIOUS AND VISIBLE

The mere possession of land is not sufficient to satisfy the requirement that the adverse possessor’s use be open, notorious, and visible. Wicker, 937 So. 2d at 994 (citing Craft v. Thompson, 405 So. 2d 128, 130 (Miss. 1981)). A claim of adverse possession cannot begin unless the landowner has actual or constructive knowledge that there is an adverse claim against his property. Scrivener v. Johnson, 861 So. 2d 1057, 1059 (Miss. Ct. App. 2003) (citing People’s Realty & Dev. Corp. v. Sullivan, 336 So. 2d 1304, 1305 (Miss. 1976)). “[A]n adverse possessor ‘must unfurl his flag on the land, and keep it flying, so that the (actual) owner may see, and if he will, [know] that an enemy has invaded his domains, and planted the standard of conquest.’” Wicker, 937 So. 2d at 994(citing Blankinship v. Payton, 605 So. 2d 817, 820 (Miss. 1992)).

DO I NEED TO FILE A MOTION FOR A NEW TRIAL TO PROTECT MY RIGHT TO AN APPEAL?

November 16, 2010 § Leave a comment

Unlike the practice in Circuit Court, where a motion to set aside the verdict and for a new trial is a prerequisite to the right to appeal, it has never been the rule in Chancery Court that a motion for reconsideration or for a new trial or for relief from judgment operate in the same fashion.  In two opinions issued last year (I have not taken the time to dig them up, but they are out there), our appellate courts commented that no motion for a new trial had been filed by the appellant before taking appeal from Chancery.  It raised a question in my mind whether we were poised to go in a new direction. 

MRCP Rule 52(b) would seem to dispose of the matter, although I do not recall it being mentioned in the appellate decisions mentioned above.  It states:

When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised regardless of whether the party raising the question has made in court an objection to such findings or has filed a motion to amend them or a motion for judgment or a motion for a new trial.

Of course, the question of sufficiency of fact to support the findings is only one possible basis of appeal.  One may also appeal on the ground that the decision of the Chancellor is contrary to the law, or that there is a defect in personal jurisdiction (subject matter jurisdiction may be questioned for the first time at any point).  Is a motion necessary to preserve those points?

Without doing substantial research, I can only say that in my years of practice I never saw a case where an appeal from Chancery Court was rejected for failure to file a motion for a new trial.  Your mileage may vary.

EVENTS THAT TERMINATE GUARDIANSHIPS

November 15, 2010 § 2 Comments

We’ve already discussed how to close a guardianship, but what exactly are the events that trigger closing it? 

MCA § 93-13-75:

The powers of a guardian for a minor cease when the ward attains the age of 21.

The chancellor may, in his or her discretion, terminate the guardianship after the ward attains the age of 18.

When the funds and personal property of the ward do not exceed $2,000, and there is no prospect of further funds coming into the guardianship, the court may terminate the guardianship and may impose conditions and restrictions for the deposit and expenditure of the funds.  This provision applies not only to guardianships for minors, but also to guardianships for a “person of unsound mind, or convict of felony.” 

MCA § 93-13-125:

In a guardianship for a person of unsound mind but not “properly adjudged mentally unsound,” the court may terminate the guardianship “If at any time it be made to appear to the satisfaction of the court that such person has been restored to sanity, such guardianship may be terminated and ended as now provided by law.”

MCA § 93-13-133:

If the court is satisfied that a person of unsound mind is restored to sanity, or that an habitual drunkard, or habitual user of cocaine, or opium or morphine has “sufficiently reformed to justify it …” the court may terminate the guardianship.

MCA § 93-13-135:

The guardianship of a convict of felony ceases when the term of imprisonment expires or the convict dies.

MCA § 93-13-151:

Guardianship of a person who is found in need of mental treatment shall end when the ward is “restored to reason” and is so adjudicated by a court of competent jurisdiction.

MCA § 93-13-161:

If a guardian has been appointed for the estate of a person in the armed forces or a merchant seaman who is “officially reported or listed as missing in action, or interned in a neutral country, or beleagured, besieged, or captured by an enemy,” the guardianship may be terminated as follows:

At any time upon petition signed by the absentee, or on petition of an attorney-in-fact acting under power of attorney granted by the absentee, the court shall direct the termination of the guardianship and the transfer of all property held thereunder to the absentee or the designated attorney-in-fact.  Likewise, if at any time subsequent to the appointment of a guardian it shall appear that the absentee has died and an executor or administrator had been appointed for his estate …”

MCA § 93-13-77:

” … it shall be made the duty of an executor or administrator of a deceased guardian to make final settlement in a of their testator’s or intestate’s guardianship accounts in the chancery court in which the same mey be pending …”

It is obvious that a guardianship terminates on death of the ward.  In such a case, an estate should be opened, a final accounting filed and noticed, and the assets transferred to the estate once the guardianship is closed.

A guardianship solely of the person terminates on emancipation of the ward, or when it is shown to the court no longer to be necessary.

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