TRO’S THAT WORK

September 22, 2010 § 1 Comment

There are two types of  temporary restraining orders (TRO’s):  The ones that work and the ones that fail.  Since your client is paying you to get a TRO that works, you might want to read on about how to be successful in getting this relief.

A TRO usually arises where the plaintiff claims he is entitled to more extensive injunctive relief, but needs immediate intervention of the court to prevent irreparable injury until the full claim for injunction can be heard. A TRO is, simply put, a temporary injunction issued in exceptional circumstances without notice to the opposing party or his attorney, to expire no later than ten days after its entry by the court.  It is intended to be an action to hold the parties in place until the court can have a full hearing on more comprehensive, extended injunctive relief.   

The procedure to obtain a TRO is set out in Rule 65, MRCP.  Everything you need to know about a successful TRO is there.  So pause a moment here and Read Rule 65 all the way through.  It’s not long and will take you no more than four and one-quarter minutes.  I’ll wait.  <humming to myself; checking my e-mail>

Okay, now that you’ve read the rule do you see now why you were turned down the last time you tried to get a TRO?  Yep, I thought so.

The rule is clear that if you want an injunction issued without notice, you must present a pleading to the court that meets the following requirements:

  1. It must recite specific facts by affidavit or verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the opposing party or his attorney may be heard in opposition; and
  2. The applicant’s attorney certfies in writing what efforts, if any, have been made to give notice, and reasons why notice should not be required.

Some scenarios that will fail:

  • You file the complaint on behalf of your client.  The rule requires a verified complaint or affidavit, either of which would be required to be on personal knowledge of the underlying facts by the person seeking the relief.
  • The complaint includes only conclusory statements and no facts.  The rule requires “specific facts” that support the relief sought. 
  • The harm that plaintiff seeks to avoid will likely occur in 30 days, and there is no explanation why notice for a hearing can not be given within that time.

Some judges require the personal appearance of the plaintiff or affiant to testify as to the facts set out in the complaint or affidavit.  I take the position that, since the application is required to be verified or supported by affidavit, testimony in person is not required at this stage; the only inquiry by the court is whether the application meets the requirements of the rule. 

When the TRO is entered, it is endorsed with the date and hour of issuance and is entered of record “forthwith.”  The order must define the injury and why it is adjudged to be irreparable, and state why it was granted without notice.  The order includes on its face the expiration date.

A TRO is effective for not longer than ten days, except in domestic relations cases to which the ten-day limitation does not apply.  The court may “for good cause” extend the effective date of the TRO “for a like period.”  That means that if the original TRO were effective for 5 days, the court may extend it another five, and a TRO originally effective for 10 days could be extended for 10 more days.  The court may also extend the TRO if the party against whom the order is entered consents to the extension.  In any extension, the reasons for the extension must be stated in the order. 

The TRO must state in reasonable detail, and not by mere reference to the pleadings, the act or acts sought to be restrained.  It is binding only upon the parties to the action and their officers, agents, servants, employees and attorneys, “and upon those persons acting in concert or participation with them who receive actual notice of the order by personal service or otherwise.”  

When the TRO is entered, a hearing date and time is set for a hearing on the preliminary injunction.  Scheduling of the hearing takes precedence over all other matters except “older matters of the same character.” 

At hearing, the party who obtained the order proceeds first, and if the proponent fails to appear, the court shall dissolve the TRO.

The party against whom the order is issued may appear and request dissolution of the TRO or modification on two days’ notice to the obtaining party, or on such shorter notice as the court may prescribe.  In such event, the court will hear the motion “as expeditiously as the ends of justice require.”

Except in domestice relations cases, a  TRO or preliminary injunction may issue only on giving of security by the applicant in the amount that the court may direct, for the payment of costs, damages and reasonable attorney’s fees that may be suffered by any party later deemed to have been wrongfully restrained.  No security is required of the State of Mississippi or its officers or agencies, and the court may waive security in a domestic relations case.  In all cases where security is required, the provisions of Rule 65.1, MRCP, apply.

The order issuing the injunction must set forth the reasons for its issuance and describe in detail the act or actions sought to be restrained.  It is binding only upon the parties to the action and their officers, agents, servants, employees and attorneys, “and upon those persons acting in concert or participation with them who receive actual notice of the order by personal service or otherwise.”

In the case of both a TRO and an injunction, if a reasonable person can not ascertain from the four corners of the document exactly what conduct is enjoined, the order should be set aside on appeal.

Practice Tip:  Before you file an application for a TRO, read Rule 65 carefully.  The requirements are technical and precise, and you will not succeed in having your TRO issued if you do not comply with the express requirements of the rule.  Include in your pleading for a TRO a request for a preliminary injunction; otherwise, the other party may simply let your 10-day relief expire, and you will be back at the starting line.

ANATOMY OF A WILL CONTEST II: PROVING UNDUE INFLUENCE

September 21, 2010 § 5 Comments

We already took a look at testamentary capacity here.  This post deals with the other pole of the will contest:  undue influence.

A presumption of undue influence arises where a confidential relationship is proven to exist.  Estate of Holmes, 961 So.2d 674, 680 (Miss. 2007).  A confidential relationship does not have to be a legal one, and the relationship may be moral, domestic, or personal, and ” … the confidential relationship arises when a dominant over-mastering influence controls over a dependent person or trust, justifiably reposed.”  Murray v. Laird, 446 So.2d 575 (Miss. 1984).

A confidential relationship exists where one person is in a position to exercise dominant influence over the other because of the latter’s dependency on the former due to weakness of mind or body, or due to trust; the law considers such a relationship to be fiduciary in character.  Madden v. Rhodes, 626 So.2d 608, 617 (Miss. 1993).  The party seeking to prove existence of a confidential relationship must do so by clear and convincing evidence.  Whitworth v. Kines, Id. at 230.

In making its determination whether a confidential relationship exists, the trial court must consider the seven factors set out by the Mississippi Supreme Court in Dabney v. Hataway, 740 So.2d 915, 919 (Miss. 1999). Those factors are:

  1. Whether one person has to be taken care of by others.
  2. Whether one person maintains a close relationship with another.
  3. Whether one person is provided transportation and medical care by another.
  4. Whether one person maintains joint accounts with another.
  5. Whether one is physically or mentally weak.
  6. Whether one is of advanced age or poor health.
  7. Whether there exists a power of attorney between the one and the other.

After considering the seven factors, the court returns to the core question, which is whether the proof establishes that the dominant person in the relationship was in a position to exercise undue influence due to the other’s weakness of mind or body, or due to trust, and whether such has been proven by clear and convincing evidence. The question at this point is not necessarily whether the dominant person did or did not exercise dominant influence; rather, the issue is whether he was in a position to do so. If the answer to the inquiry is that there is clear and convincing evidence that the dominant person was indeed in a position to exercise undue influence, the presumption arises, and the burden shifts.

Once the presumption arises, it must be rebutted by clear and convincing evidence. Estate of Pigg v. McClendon, 877 So.2d 406, 411 (Miss. App. 2003).

The proponent then has the burden of going forward with clear and convincing evidence in a three-prong test set out in Mullins v. Ratcliff, 515 So.2d 1183, 1193 (Miss. 1987). The three-prong Mullins test requires the proponent to prove:

  1. good faith on his part;
  2. the grantor’s full knowledge and deliberation of his actions and their consequences; and
  3. that the grantor or testator exhibited independent consent and action.

A will or conveyance is said to be the product of undue influence when an adviser has been so persistent and pressing that the testator’s free will and agency is suppressed.  See, Longtin v. Wilcher, 352 So.2d 808, 811 (Miss. 1977).

In order to determine whether the proponent acted in good faith as provided in the first prong of the Mullins test, the trial court must consider the five factors listed in Estate of Holmes, 961 So.2d 674, 680 (Miss. 2007).  Those factors are:

  1. The identity of the person seeking preparation of the instrument.
  2. The place of execution of the instrument and in whose presence.
  3. What consideration and fee were paid, if any.
  4. By whom paid.
  5. The secrecy or openness given the execution of the instrument.

The second prong of the Mullins test is the grantor’s full knowledge and deliberation of his actions and their consequences. In order to adjudicate this prong, the court must take into consideration the factors set out in Estate of Holmes, supra at 685-686.  Those factors and the court’s findings are as follows:

  1. His awareness of his total assets and their general value.
  2. An understanding by him of those persons who would be the natural inheritors of his bounty under the laws of descent and distribution or under a prior will and how the proposed change would affect that prior will or natural distribution.
  3. Whether non-relative beneficiaries would be excluded or included.
  4. Knowledge of who controls his finances and business, and by what method, and if controlled by the other, how dependent is the grantor/testator on him and how susceptible to his influence.

The third and last prong of the Mullins test is whether the decedent exhibited independent consent and action.  In Dean v. Kavanaugh, 920 So.2d 608, 622 (Miss. App. 1993), the Mississippi Court of Appeals stated that the best way to show independent consent and action is to establish that the testator/grantor had the benefit of advice of a competent person disconnected from the grantee and devoted solely to the testator/grantor’s interests.

CLARKE COUNTY DEDICATION REMINDER

September 20, 2010 § Leave a comment

Reminder that the dedication of the renovated “old court room” at the Clarke County Court House in Quitman will be this coming Sunday, September 26, from 2 pm to 4 pm.  There will be an open house and reception.

If you practice in Clarke County, it would be a gracious gesture to attend and make it a point to tell the members of the Clarke County Board of Supervisors how much you appreciate their leadership and vision.

TRIAL BY CHECKLIST: SEPARATE MAINTENANCE

September 20, 2010 § 8 Comments

A practice tip about trial factors is here.

In the case of Shorter v. Shorter, 740 So.2d 352, 357 (Miss. 1999), the Mississippi Supreme Court stated that six criteria must be considered in setting awards of separate maintenance: 

  1. The health of the husband and the wife;
  2. Their combined earning capacity;
  3. The reasonable needs of the wife and children;
  4. The necessary living expenses of the husband;
  5. The fact that the wife has free use of the home and furnishings; and
  6. Other such facts and circumstances.

Also see, Honts v Honts, 690 So.2d 1151, 1153 (Miss. 1997).

While an award of separate maintenance should provide for the wife as if the couple were still cohabiting, the allowance should not “unduly deplete the husband’s estate.” Kennedy v. Kennedy, 662 So. 2d 179, 181 (Miss. 1995) (quoting Thompson v. Thompson, 527 So. 2d 617, 622 (Miss. 1988)).

A FEW RANDOM PROBATE MATTERS

September 17, 2010 § 4 Comments

[This information comes from the outline of a presentation made by Bob Williford to the Chancery Judges Spring Conference earlier this year.  Used with  his permission.]

Necessity to join specific or general legatees in petition to close the estate:

If a beneficiaries who have received specific or general bequests under the will have signed receipts, or the personal representative has produced cancelled checks showing the bequests have been satidfied, it is not necessary to have the beneficiaries join in the petition to close the estate; only the approval of the residuary beneficiaries would be essential.

Timely probate of will:

An extended period of time after the death of the testator does not prevent a will from being probated.  Harrison v. Gatewood, 51 So.2d 59 (Miss. 1951).  

Statement of compliance:

When closing the estate, the court order authorizes payment of final expenses and distribution of the remaining assets of the estate.  It is a common practice that, once the order is signe the assets are distributed and the estate is accepted as being closed.  A Statement of Compliance, however, may be appropriate.  It would state that the final expenses have been paid and the final distributions made, and it should be filed with the court.   

A SMORGASBORD OF FALLACIES

September 16, 2010 § 1 Comment

Fallacious arguments abound, and they can be vexing to have to overcome. 

Dr. Michael LaBossiere, a philosophy professor, has posted a .pdf file of 42 common fallacies with examples.  You can download it and use it as you wish.  It’s a handy reference tool that may help you find a hole in your opponent’s argument or fix a weak spot in your own.

“QUOTE UNQUOTE”

September 16, 2010 § Leave a comment

“Blessed is the man who, having nothing to say, abstains from giving us wordy evidence of the fact.”  —  Elbert Hubbard

“Silence is not a thing we make; it is something into which we enter.  It is always there.  … all we can make is noise.”  —  Mother Maribel of Wantage 

 “Ask me about my vow of silence”  —  Bumper sticker

MORE ANECDOTAL EVIDENCE ON PRO SE PROBLEMS

September 15, 2010 § Leave a comment

In the past week, I have three pro se divorces presented to me that illustrate some of the problems that people can create for themselves when they undertake to represent themselves.

Case 1.  A fairly standard no-fault divorce with no children, no joint debts, no joint property.  Husband gets the homestead that he owned before the marriage, and will pay wife for her marital equity.  The wrinkle is in a paragraph that provides that the parties will divide the husband’s “retirement annuity,” and allocating the tax liability between them.  When I asked the husband how he expected to accomplish it without a QDRO, he replied, to my surprise, that the plan administrator had already disbursed the money to the parties, and that his accountant had told him he could avoid the 10% penalty by addressing it in the property settlement agreement.  The agreement did include the phrase “Qualified domestic order,” but did not include any of the ingredients required to constitute a true QDRO within the meaning of the law.  I have no idea how the IRS will treat the parties’ home-made paperwork, but if they end up having to pay the 10% penalty, I would bet both of the following will be true:  (1)  Both parties will be unhappy; and (2) It would have cost a lot less to hire an attorney to ensure that it was either done right or the liability shifted to the attorney.

Case 2.  Property settlement agreement with no provision for custody at all, although a child is identified.  When I asked why there was no custody provision, the response was that the child is 18 and in college, and there does not need to be a custody arrangement, a statement with which I disagreed.  When I asked about the lack of any support provision, the response was that there was no need for support because the child is in college, another statement with which I disagreed, especially based on my own personal experience.  I did not bother to read the rest of the agreement, but if the property division was as incomplete as the child custody and support provisions were, I doubt it would have been “adequate and sufficient.”

Case 3.  A well-dressed young couple approached the bench.  Dad is holding a 2-year-old child, whom he is feeding with a baby bottle.  I find three shortcomings in the agreement.  First, although they agree to joint legal custody, there is no tie-breaker; you can’t have a committee of two, so who will have final decision-making authority?  Second, the agreement states that “both parties shall claim the children as tax exemptions.”  How will that work?  Do they mean that both claim both children in the same year, or that the exemptions will be divided between them somehow?  Sounds like another trip back to court to me.  And third, there is no provision for child support for the two children, ages 2 and 4.  When I ask mom about it, she says “I am not asking for any support.”  Well, I can’t approve it no matter what you want because I have to watch out for the children.   The husband proposed that the 3 of us should sit down and I could point out ways to fix their paperwork, but I demurred on the basis that I am prohibited from giving them legal advice, and even if I could, I could not advise both of them in the same case because of their competing interests.               

Neither of the cases with children had UCCJEA affidavits.

I previously posted on the problems of pro se litigation here.

ANATOMY OF A WILL CONTEST: PROVING LACK OF TESTAMENTARY CAPACITY

September 14, 2010 § 6 Comments

Before the contestants in a will contest may proceed, the proponents of the will must first establish their position that the will is valid.

In Estate of Holmes, 961 So.2d 674, 679 (Miss. 2007), the Mississippi Supreme Court stated:

The proponents of the will meet their burden of proof by the offering and receipt of the will into evidence and the record of probate. [Citation omitted] The proponents make a prima facie case solely on this proof. Id. The burden then shifts to the contestants to overcome the prima facie case, but the burden of proof remains with the proponents to show by a preponderance of the evidence that the testator had capacity. Id.

The proponents typically make a prima facie case by admitting into evidence the will, the witness affidavits, the order granting letters testamentary, and the letters testamentary.

In order to determine testamentary capacity, the trial court must consider three factors:

  1. Whether the testator had the ability at the time of making his will to understand the nature and effect of his acts.
  2. Whether the testator had the ability at the time of making his will to understand the natural objects or persons to receive his bounty and their relation to him; and
  3. Whether the testator was capable of determining at the time of making the will what disposition he desired to make of his property.  Estate of Holmes, Id.

“In considering all the evidence, some testimony will receive greater weight. The testimony of subscribing witnesses receives greater weight than the testimony of witnesses who were not present at the will’s execution … The date of execution is the most important date, given that we recognize that a testator may not possess capacity one day and within several days have the capacity to execute a valid will.”  Rocco v. Sims, 918 So.2d 864, 871-872 (Miss. App. 2005).

The same capacity that is required to make a valid deed is required the for making a valid will.  Whitworth v. Kines, 604 So.2d 225, 228 (Miss. 1992).   Since the party seeking to set aside a deed must prove by clear and convincing evidence that the grantor lacked mental capacity at the time of execution, and not simply that the grantor suffered general weakness.  In re Conservatorship of Cook, 937 So.2d 467, 470 (Miss. App. 2006), it would follow that the same standard of proof would apply to a case in which the party seeks to set aside a will on the same basis. 

 

IS MY DIVORCE FINAL? YES. UH, NO. OKAY, YES. AT LEAST I THINK IT IS

September 13, 2010 § 2 Comments

We all hope that when a judgment of divorce on the ground of irreconcilable differences is entered, the result is a final resolution of the parties’ marital strife.  Sometimes, though, the disputes come reeling back to life, zombie-like, careening through the trial courts, or try to, anyway.  Consider: 

In Irby v. Estate of Irby, 7 So.2d 223 (Miss. 2009), the Mississippi Supreme Court finally laid to rest the troublesome question whether a divorce granted on the ground of irreconcilable differences is void because the parties failed to withdraw their contested pleadings.  In that case, the husband and wife were divorced based on a consent.  Husband died shortly after the judgment was entered, and wife sought to set aside the judgment on the basis that the parties’ contested pleadings had not been withdrawn before the judgment was entered.  The Supreme Court held that the consent operated as a withdrawal of the contest, and that it was not necessary to take any other action to withdraw pleadings.

The Irby decision effectively reversed the Court of Appeals decision in Pittman v. Pittman, 4 So.3d 395 (Miss. 2009), rendered only six weeks before Irby.  The reversal apparently did not go down well with the Court of Appeals, however.  In Sellers v. Sellers, 22 So.3d 853 (Miss. App. 2009), decided 2 months after Irby, the Court of Appeals fired back its disagreement with Irby in lengthy dicta that had nothing to do with any issue raised in the Sellers case.  Having gotten that off their chest, the Court of Appeals six months later again followed Irby in the case of Cossey v. Cossey, 22 So.3d 353, 357 (Miss. App. 2009), where they stated through figuratively clenched teeth, “We reach this decision, as we did in Sellers, by strictly applying the supreme court’s recent interpretation of section 95-5-2(3) and (5).”     

Bottom line is that when you have a consent that meets all the statutory requirements, you do not need to withdraw contested pleadings.  But why invite scrutiny?  It’s simple to include in your consent express language that the parties agree that all contested pleadings are withdrawn and dismissed.  Or, for an even greater comfort level, you can file an agreed motion followed by an agreed order withdrawing the contest.

The issue in McDuffie v. McDuffie, 21 So.3d 685 (Miss. App. 2009) was whether the Chancellor acted improperly in denying Michael McDuffie’s request to withdraw his consent after the trial had begun.  Michael and his wife Kathi had entered into a consent to divorce, which met all of the statutory requirements and had been duly filed.  The trial was percolating along nicely when, much to Michael’s dismay, Kathi admitted in her testimony that she had committed adultery.  Stung by the revelation, Michael moved to withdraw his consent, which the Chancellor refused, based on the facts that the consent had been filed three years before the trial was commenced, several motion hearings had intervened, and the trial had begun.  The Court of Appeals upheld the Chancellor’s decision based on § 93-5-2, MCA, which states in part that the consent, ” may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto.”  It was not error in the circumstances for the court to refuse to grant leave to withdraw.

Can the trial court grant a divorce on irreconcilable differences where there is no pleading properly before the court requesting it?  In Tyrone v. Tyrone, 32 So.3d 1206 (Miss. App. 2009), husband had filed a complaint for separate maintenance, and wife filed a response that included a counterclaim for an irreconcilable differences divorce and a motion to dismiss husband’s complaint.  The trial judge dismissed husband’s pleading, but never conducted a hearing on wife’s counterclaim for divorce.  Husband subsequently filed a second complaint for separate maintenance, and wife responded with a motion to dismiss.  In a later hearing dealing with some contempt issues, the trial judge urged the parties to settle the matter as an irreconcilable differences divorce, which they did, and he granted a divorce on the ground of irreconcilable differences.  Wife appealed, and the Court of Appeals reversed.

If you read Tyrone, you will doubtless be struck by the tortuous route from pleading to final result at the trial level.  If you come away with the conclusion that there must be a pleading before the court, filed more than sixty days previously, requesting irreconcilable differences, and a consent or property settlement agreement that meets the statutory requirements, that is enough.

A similar result was reached in Johnson v. Johnson, 21 so.3d 694 (Miss App. 2009), where the trial court granted a divorce on the ground of irreconcilable differences where there was no agreement, and the parties had not executed a consent.

Perhaps the most zombie-like case of all is Henderson v. Henderson, 27 So.3d 462 (Miss. App. 2010), in which the trial judge signed a judgment of divorce on April 23, 2002, but the judgment was never filed with the clerk.  Some time later, the case was dismissed for inaction pursuant to Rule 41(d), MRCP.  In 2005, husband discovered the omission and filed a Complaint for Divorce on the ground of desertion.  In 2006, wife filed a motion asking the Chancellor to correct the oversight by entering the judgment nunc pro tunc to April 23, 2002, which the judge did.  Husband appealed, complaining that it was error for the judge to enter the judgment after had filed his pleading on a fault ground.  The Court of Appeals disagreed, pointing out that, “[C]ourts may by nunc pro tunc orders supply omissions in the record of what had previously been done, and by mistake or neglect not entered,” and that the later judgment is effective on the date that it should have been entered but for the omission.  Thus, husband’s pleading had no effect on the ultimate outcome.  

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