RIBOLLITA
November 14, 2010 § 4 Comments
Firenze
Several years ago, Lisa and I found ourselves on a frigid, windy November day in the Piazza della Signoria in Florence. The icy wind that knifed through our wool coats was the tramontana — the swift, cold downdraft from the snow-covered Alps to the north that sweeps across Tuscany and sends sightseers indoors in search of some warmth. It was lunch time, and a break from the brisk cold was in order.
And so we made our way into a cozy restaurant with a warm fireplace off the historic square, where we asked our waitress for a recommendation. Without hesitation, she suggested we have the ribollita, a hearty Tuscan minestrone or vegetable soup thickened with stale bread. “Ribollita” means “reboiled” in Italian, and refers to the fact that the soup is usually made the day before or earlier in the day and is reboiled for serving. We found that this delicious, smoky soup chased away the chill, and I made sure to get the recipe. Alas, I lost it and the name of the ristorrante before I could record them, but this recipe is as close to the original as I could find.
Now that the temperatures are dropping and the days are growing shorter, do yourself a favor and make a nice pot of this soup. Pour yourself a glass of hearty Montefalco Rosso or a Chianti Classico and sit by the fire. This soup is cold-weather comfort food par excellence.
RIBOLLITA
1/4 cup extra-virgin olive oil, plus some for drizzling on bread
1 onion, chopped
1 carrot, chopped
4 ounces pancetta, chopped
2 cloves garlic, 1 minced and 1 whole
1 teaspoon salt
1 teaspoon freshly ground black pepper
1 tablespoon tomato paste
1 (15-ounce) can diced tomatoes
1 pound frozen spinach, thawed and squeezed dry
1 (15-ounce) can cannelloni beans, drained
1 tablespoon herbs de Provence
3 cups chicken stock
1 bay leaf
1 (3-inch) piece Parmesan rind
4 to 6 ciabatta rolls, halved lengthwise, or 1 loaf Italian bread or ciabatta, sliced on the bias
Grated Parmesan, for serving
Heat the oil in a heavy large pot over medium heat. Add the onion, carrot, pancetta, minced garlic, salt, and pepper. Cook until the onion is golden brown and the pancetta is crisp, about 7 minutes. Add tomato paste and stir until dissolved. Add tomatoes and stir, scraping the bottom of the pan with a wooden spoon to release all the brown bits. Add the spinach, beans, herbs, stock, bay leaf, and Parmesan rind. Bring the soup to a boil, reduce heat and simmer for 30 minutes.
Meanwhile, preheat the oven to 350 degrees F.
Drizzle the ciabatta halves or bread slices with olive oil. Toast until golden brown, about 5 minutes. Remove from the oven and rub the top of the toasts with the whole garlic clove. Place the toasts in the serving bowls and ladle the soup over the toasts. Sprinkle with Parmesan and serve immediately.
AN ALIMONY TAX CONSEQUENCE YOU NEED TO CONSIDER
November 12, 2010 § Leave a comment
Internal Revenue Code § 71(f), provides that when alimony payments last three years or less, they will not likely be treated as tax deductible, even if the divorce judgment specifically states that they are deductible.
You need to talk this over with a CPA to get some guidance before you draft your PSA or have your client testify, for example, that she wants 24 months of rehabilitative alimony. This is one of those “tax consequences” of the award that is one of the Armstrong factors that the court is supposed to consider. If you don’t put evidence in the record about it, you won’t have to worry about it because the trial judge simply won’t give it any thought. Your client may call you later and ask for some financial assistance, though, and it probably won’t be a pleasant conversation.
As with all IRS rules, I am sure that there are ways to draft an agreement to avoid the problem, and, of course, the amount of alimony can be adjusted up or down to accommodate the tax effects.
This IRS rule underlines the importance of including in your property settlement agreements a disclaimer that you have not provided any tax advice, and that the parties have been encouraged to get tax advice from a qualified expert.
November 11, 2010 § Leave a comment
The eyes of the world are upon you. The hopes and prayers of liberty-loving people everywhere march with you. — General Dwight D Eisenhower, address to his troops on D-Day, 1944
In war, there are no unwounded soldiers. — José Narosky
The only thing necessary for the triumph of evil is for good men to do nothing. — Edmund Burke
SOME THINGS YOU MAY NOT KNOW ABOUT GUARDIANSHIPS
November 10, 2010 § 2 Comments
Here are some things you may not already know about guardianships. Some of them have teeth that can draw blood if they catch you unawares …
- MCA § 93-13-38, provides that “All the provisions of the law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, as far as applicable and not otherwise provided, be observed and enforced in all guardianships.”
- MCA § 93-13-33, requires that the guardian return an inventory within three months of the appointment, and states: “Any guardian who shall fail to return inventories may be removed and his bond be put in suit, unless he can show cause for the default.”
- When closing out a guardianship, the requirements of MCA § 93-13-77, must be satisfied. That section requires that a final accounting filed, and that the ward be summoned and given notice to be and appear before the court on a day not less than one month after the date that the summons is served or after completion of publication, to show cause why the accounting should not be approved. The accounting can not be approved earlier than one month after completion of process. All the requirements to close a guardianship are here.
- When a guardian has more than one ward, each ward’s business must be accounted for separately. MCA § 93-13-69.
- A child 14 or older has a statutory right to choose his or her guardian. If the ward is over 14, you should have the child join in the petition.
- Guardianship of a minor ceases by operation of law at age 21, and, in the discretion of the Chancellor, at age 18. The guardianship may also be terminated by order of the court at any time that the estate has a value less than $2,000 and no further funds or property are anticipated to come into the guardian’s hands. MCA § 93-13-75.
- Any claim for a guardian’s fee must include the information required in Uniform Chancery Court Rule 6.11.
- A “solicitor’s fee” (MCA § 93-13-79) may be allowed for the attorney, and the claim for it must be supported by an itemized statement of services rendered in the same form as that required for the guardian’s fee, plus the information required in Rule 6.12 of the Uniform Chancery Court Rules.
PUBLISH RIGHT OR PERISH
November 9, 2010 § 4 Comments
We’ve talked before about what you need to do when publishing process for a defendant whose post office address is known. You can read that post here.
When you have no information about the defendant’s whereabouts, there are a couple of things you have to do before you can publish.
MRCP 4(c)(4)(A) states in part:
… if it be stated in … sworn complaint or petition that the post office address of the defendant is not known to the plaintiff or petitioner after diligent inquiry, or if the affidavit be made by another for the plaintiff or petitioner, that such post office address is unknown to the affiant after diligent inquiry and he believes it is unknown to the plaintiff or petitioner after diligent inquiry by the plaintiff or petitioner, the clerk … shall promptly prepare and publish a summons to the defendant to appear and defend the suit.
Your first step is to send your client out into the world to make an effort to find the defendant. Have her call his relatives and ask about where he is. If they say the last they heard he was in Milwaukee, have your client call information in Milwaukee or look him up on the internet. If he remarried, try to contact his later spouse or children. Suggest she call his former employers or co-workers. Most of these efforts will be futile, but the efforts themselves, not the success, constitute the “diligent” part of “diligent search.”
After your client has diligently, but unsuccessfully, tried to find the defendant, prepare your pleadings including a sworn allegation in your pleading or an affidavit that the defendant’s address is unknown to your client “after diligent inquiry.” You must include that language, or your publication will be a nullity.
The rule says that the “clerk shall promptly prepare and publish a summons,” but it is the universal practice that the lawyer prepares the summons and gives it to the clerk to issue, and the lawyer carries it to the paper for publication. The publication must be substantially in the form of MRCP Form 1-C.
Publication is once a week for three successive weeks in a newspaper published in the county. The publication notice certified by the newspaper is filed in the court file by the lawyer.
The defendant has thirty days from the date of first publication within which to file a responsive pleading.
Once you get before the court, your client or the affiant will have to testify to the efforts they made to locate the defendant. There is no case law defining the proof necessary to satisfy the diligent inquiry requirement. In Page v. Crawford, 883 So.2d 609, 611-12 (Miss. App. 2004), the court said this:
There is no bright line rule as to how many efforts must be made by a plaintiff to locate a named defendant to satisfy the requirement of diligent inquiry. There is also the question of balancing the quality of those inquiries with their quantity. Standing on a street corner and asking passersby if they know the defendant’s location would clearly not constitute diligence, no matter how many persons were asked in that manner. Beyond that, it becomes a matter of balancing quantity, quality and the interests of the parties.
In this case, Page did make several attempts to locate and serve Crawford within the 120-day period, searching through both telephone and utility directories and repeatedly engaging process servers. When Page finally found Crawford’s husband, he refused to accept certified letters regarding the matter. Although land records do seem like an obvious place to conduct an inquiry, Page was looking under a former name that was given at the time of the accident.
In Caldwell v. Caldwell, 533 So.2d 413 (Miss. 1988), the Mississippi Supreme Court found Mr. Caldwell’s half-hearted efforts to discover his wife’s post office address in Alaska to be insufficient, especially in view of the fact that she had family he could have contacted, but did not, to further his search.
I have refused to allow parties to go forward where it was obvious that more could have been done to locate the defendant. In one case, the plaintiff testified that the last she heard her husband was in prison in Texas. I pointed out to the attorney that prisoners, of all people, should be among the easiest to locate. Sure enough, they went back to the drawing board and found him on an internet prisoner locator site. They then got personal process on him and were able to proceed with an uncontested divorce.
The purpose of MRCP 4 is to ensure that a defendant receives notice of legal proceedings against him, if at all possible, so that he has the opportunity to defend. If the court finds that your client’s efforts fulfill that purpose, your publication process will be adequate. Don’t take your client’s word for it that she has tried to find him and failed. Make her go through the process of trying.
THE PROPER NAMES OF PLEADINGS
November 8, 2010 § 3 Comments
Rule 7, MRCP, states:
“There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim; a third-party complaint, if a person who is not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or third-party answer.”
and
“An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.”
Early on, the appellate courts held that the trial courts are to look beyond the name given to the pleading by the drafting attorney to the substance of the document. In other words, calling a counterclaim a “countercomplaint” or calling a petition a “motion” does not deprive the court of authority to act.
Still, styling a pleading incorrectly can cause confusion and may even lead the trial court into error, as it did in the case of Sanghi v. Sanghi, 759 So.2d 1250 (Miss. App. 2000).
The better practice is to use the proper nomenclature when drafting pleadings, so that your intent is clear and you can at least look like you know what you are doing.
I have looked at the rules and studied the few cases on the subject and have come to the conclusion that the following table sets out the proper names to be used for various pleadings, at least until the appellate courts give some more definitive guidance on the subject.
| Function | Title of Pleading | Party Filing and Opposing Party |
| Initiate a new lawsuit not based on a prior judgment | Complaint | Plaintiff and Defendant |
| Answer a Complaint | Answer | Defendant and Plaintiff |
| File a claim by defendant against the plaintiff | Counterclaim | Counterclaimant and Counterdefendant |
| File a claim by defendant against co-defendant | Cross-claim | Cross-claimant andCross-defendant |
| Initiate a lawsuit seeking modification or enforcement of existing judgment | Petition | Petitioner and Respondent |
| Answer a Petition | Answer | Respondent and Petitioner |
| File a claim by respondent against the petitioner | Counterclaim | Counterclaimant and Counterrespondent |
| File a claim by respondent against a co-respondent | Cross-claim | Cross-claimant and cross-respondent |
| Ask the court in an already-filed action for some relief (e.g., temporary relief, compel discovery, summary judgment, etc.) | Motion | Movant and Respondent |
SHRIMP AND CRAB SAUTE
November 7, 2010 § Leave a comment
So you have a pound of lump crab meat on hand and you want to gag at the thought of crab cakes yet again. Here’s a great recipe inspired by Galatoire’s that is simple and yet good enough for company. It’s even better with a side of roasted asparagus topped with a tangy lemon and tarragon sauce or a green salad with Italian dressing or a vinaigrette.
SHRIMP AND CRAB SAUTÉ
1 Tbsp. olive oil
2 Tbsp. butter
1 Green bell pepper, chopped
1 Red bell pepper, chopped
2 Medium yellow onions, julienned
1 Lb. jumbo shrimp
1 Lb. lump crab meat
8 Oz. mushrooms, sliced
3 Cloves garlic, minced
Salt and ground black pepper to taste
Pasta
Parmesan cheese
_______________________________
Heat oil and butter over medium heat until butter is melted.
Add peppers and onions and saute until vegetables are wilted.
Add shrimp and cook until shrimp turn pink. Salt and pepper to taste. Add crab meat and mushrooms and cook until mushrooms are soft. Be sure to toss only, rather than stir, so as not to break up the lump crabmeat.
Remove from heat and add the garlic, tossing to mix. Salt and pepper to taste.
Toss with the pasta of your choice.
Top with Parmesan cheese, if you wish.
FOOD VS. FOOTBALL
November 6, 2010 § Leave a comment
Now that college football season is almost over (I know, some of you will say that my team’s season never really started!), I am going to be posting about cooking and putting up some of my favorite recipes that I have accumulated over the years.
Tomorrow I will post a great, simple recipe inspired by a dish I enjoyed at Galatoire’s, and I’ll try to keep up most weekends. If you have a recipe or something about cooking you’d like to share, send it to me and I’ll post it.
RULE 8.05, AMENDED
November 5, 2010 § Leave a comment
The Supreme Court yesterday entered an order amending Uniform Chancery Court Rule 8.05, in part. You can read the amended rule here.
In essence, the amended rule keeps in effect the financial statement with which we are all familiar, and adds a more detailed statement as an option to be used, “By agreement of the parties, or on motion and by order of the Court, or on the Court’s own motion … ”
Check out the more detailed form. There will likely be cases where it will be more suitable for your use than the original form.
ELVIS IN MERIDIAN: THE PINK CADILLAC
November 5, 2010 § 1 Comment
I posted about Elvis Presley’s appearance in Meridian in 1955 here.
Several people who saw the Meridian parade with Elvis in person told me they remembered that the car was pink. Turns out their memories were on target.
According to this Elvis fan’s website, Elvis had purchased the car, a 1954 pink and white model, in March, 1955, only 2 months before the Meridian parade photos that I posted. He used it to transport himself and his back-up musicians, Scotty Moore, D. J. Fontana and Bill Black, who were billed as the Blue Moon Boys, to various gigs around the south. Elvis had made it known to all of his friends and fellow performers that it was his dream to own a pink Cadillac. The one he rode in Meridian was his first.
On June 5, 1955, Elvis and his band had completed a show at Hope, Arkansas. The next show was in Texarkana, and Elvis invited a local girl to ride with him in the Cadillac, while Moore, Black and Fontana rode in another car with some friends. Near Fulton, Arkansas, about half-way to Texarkana, a brake lining on the Cadillac caught fire, and the car burned up.
Elvis's dream car goes up in smoke
Neither Elvis nor his passenger were hurt, but Elvis was probably sad to see his dream car, the one he rode on in the Meridian parade, in flames.
On July 7, 1955, Elvis bought his second pink Cadillac. Actually, it was a blue 1955 Fleetwood Series 60 with a black top. He had a neighbor formulate a pink color for it that the neighbor named “Elvis Rose,” and the neighbor painted the car for him. This second Cadillac is the famous Pink Cadillac that Elvis gifted to his mother and became her proudest possession. It is still on display in the auto museum at Graceland.
Gladys Presley's "Elvis Rose" Cadillac in the driveway at Graceland
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