Busted
May 9, 2018 § Leave a comment
In 1972, Carroll and Susan O’Brien purchased 104 acres of land in Simpson County as joint tenants with right of survivorship. The purchase money came from Susan’s inheritance.
Fifteen years later, in 1987, the couple was divorced by judgment on the ground of irreconcilable differences. Their PSA, which was incorporated into the judgment, included the following provision:
It is agreed between the parties that all real property jointly owned by these parties shall remain as same now is, with each party owning a one-half undivided interest in all real property and that said real property cannot become community property by any future marriages by either spouse. No disposition of any land holdings may be made while both parties are alive unless by mutual agreement in writing.
It is obvious from the language above that their intent was that the ultimate survivor would become sole owner of the property.
Only problem is that Carroll had a different idea. In 1995, using an old power of attorney (POA) that Susan had signed back in 1970, he quitclaimed the Simpson County property to himself and his new wife, Socorro. Contrary to the express language of the PSA, Carroll had not sought or obtained Susan’s “mutual agreement in writing” to dispose of his interest in the real estate. He did not execute the deed as Susan’s attorney-in-fact. There were a couple of later conveyances in 2000 and 2007, resulting in the property being conveyed solely to Socorro.
Carroll died in November, 2012.
Susan filed suit to void the deeds and remove clouds on her title to the property. She alleged breach of fiduciary duty by his self-dealing use of the POA, lack of authority to convey, fraud, and unjust enrichment. Socorro filed a denial, along with affirmative defenses of equitable estoppel, laches, and waiver, and demanded one-half of the ad valorem taxes back to 1995.
Susan filed a motion for summary judgment. The chancellor found that no written agreement was ever made to allow Carroll to convey any interest in the property, and that all of his attempts to convey the property after the divorce would be cancelled and set aside. Socorro appealed.
The COA unanimously affirmed in the case of O’Brien, Individually and as Executrix of the Estate of O’Brien v. Westedt, handed down April 10, 2018. There are some legal points of interest to property lawyers.
Citing Mosby v. Mosby, 962 So. 2d 119, 124 (¶15) (Miss. App. 2017), the court affirmed the chancellor’s decision:
¶12. Susan responds that the Mosby case clearly stands for the principle that conveyances which thoroughly frustrate the intent of a divorce decree shall be set aside. Id. She claims that, based on the trial court’s interpretation and application of Mosby to the undisputed facts of the case, she was entitled to a judgment as a matter of law. She contends that the property settlement agreement is clear that neither she nor Carroll could dispose of any interest in the real property while both were alive without the written agreement of the other. As previously quoted, the agreement states that “[n]o disposition of any land holdings may be made while both parties are alive unless by mutual agreement in writing.”
¶13. The chancery court noted that in “Mosby, a divorced husband attempted to thwart the intent of the divorce decree by conveying his one-half interest in the property to his second wife while retaining a life-estate in himself in a scheme to avoid splitting the equity in the property with his first wife.” Id. Based on the Mosby case, the court found that the property settlement-agreement provision governed, and all attempts by Carroll to convey the property after his divorce from Susan should be canceled and set aside. We agree. See also McKinney v. King, 498 So. 2d 387, 388 (Miss. 1986) (holding that, “[i]t is fundamental law that an agent owes his principal absolute good faith and fidelity, and he cannot in the exercise
of his authority as agent acquire property or interest therein rightfully belonging to his principal without full disclosure and free consent of his principal.”).
¶14. The property-settlement agreement clearly contemplated that the property would pass by survivorship unless both parties agreed otherwise in writing. “[P]roperty settlements under divorce actions are binding on the parties if fair, equitable and supported by consideration.” Weeks v. Weeks, 403 So. 2d 148, 149 (Miss. 1981). Socorro does not claim that the property-settlement agreement entered into by Carroll and Susan was unfair, inequitable and not supported by consideration at the time Carroll and Susan executed it. The contract was enforceable, and the conveyances were void; therefore, the original joint tenancy with rights of survivorship was still intact at Carroll’s death, and Susan is entitled to the entire property.
A few thoughts:
- I am going to presume that the concept of keeping the property jointly titled post-divorce originated with the clients, and not the lawyers. Perhaps neither had the funds to buy out the other’s interest. Whatever, I don’t think it’s usually best to leave the parties in a joint ownership arrangement after a divorce.
- Regardless of the wisdom or lack thereof behind the property arrangement, I give full credit to the lawyer who drafted it. The provision leaves no doubt about what the parties intended, and it left no wiggle room that Carroll could have used to justify his actions.
- This case also highlights that you need to discuss with your divorce clients how to tidy up their affairs after divorce. They need to do a credit check to make sure there are no joint credit accounts of which they were unaware. They need to cancel all previous wills. They need to execute a cancellation of all prior powers of attorney and file the cancellation with the chancery clerk among the property records. They need to check and change life insurance beneficiaries as necessary. They need to close all joint banking and securities accounts. It’s an important subject about which I’ve posted here before.
- Righting wrongs and making sure that equity is done are core functions of chancery court.
Pleadings and their Proper Names
May 8, 2018 § 4 Comments
We all lapse into using the general term “pleadings” to embrace just about any and every filing with the court. But that’s a bad habit that we need to break.
There are only seven instruments that are considered pleadings under the MRCP. They are listed in R7(a), which reads:
Pleadings. There shall be a complaint [or a petition, see below] and an answer [which may include a R13 counterclaim]; a reply to a counter-claim denominated as such; [a cross-claim against a co-defendant] an answer to a cross-claim, if the answer contains 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 a third-party answer. [My emphasis and editorial comments]
That’s it. Those are the filings that by definition are pleadings. A motion is not a pleading. Motions “and other papers” are dealt with in R7(b), separate and apart from pleadings.
And while we’re at it, notice that there is no mention in R7 of “countercomplaints,” “cross-petitions,” or “motion for modification” or any other such products of an overactive legal imagination. As the court said in Cornelius v. Overstreet, 757 So. 2d 332, 335 (Miss. App. 2000):
¶ 9. In addition, this Court would like to comment to the bar and the trial bench about cases similar in nature which fall within the purview of Rule 81(d) of the Mississippi Rules of Civil Procedure. The initiation of such actions should be by filing “complaints” or “petitions,” and “counterclaims” or “cross-claims” (whichever might be appropriate), not “motions” and “cross-petitions” as was done in this case. See M.R.C.P. 13, 81(d)(1–3), 81(f), and comments to 81(d)(3) and 81(f).
The use of the term “Petition” in place of complaint in chancery matters has been suggested by the MSSC to reflect long-standing practice particularly in estate matters, and to distinguish contempt and modification actions based on continuing jurisdiction from initial complaints.
There is no penalty for mislabelling a pleading other than the usual price an otherwise well-educated person pays for appearing ignorant.
A previous post dealing with this same subject is here. As an added bonus, you will note that I lumped motions in with pleadings in that earlier post. Well, that just goes to prove what I said in my first sentence above.
Bell Seminars
May 7, 2018 § Leave a comment
As I have often said here, if you intend to practice family law, you are behind the curve unless you learn as much as you can about it, and, in my opinion, one of the best ways to learn as much as you can about it is to attend Professor Deborah Bell’s Family Law seminars.
This year’s versions are: Biloxi, July 27; Oxford, August 3; and Jackson, August 10.
Here’s a link to registration information.
And while you’re at it, you should buy Bell on Mississippi Family Law. It’s the best learned treatise on Mississippi family law that I have found.
Disclaimer: I have no financial or other interest in promoting the seminar or the book, other than wanting lawyers and judges to do the best job that they can do.
“Quote Unquote”
May 4, 2018 § Leave a comment
“A thief passes for a gentleman when stealing has made him rich.” — Dutch proverb
“Only Jesus would be crazy enough to suggest that if you want to become the greatest, you should become the least. Only Jesus would declare God’s blessing on the poor rather than on the rich and would insist that it’s not enough to just love your friends. I just began to wonder if anybody still believed Jesus meant those things he said.” — Shane Claiborne
“It is a spiritually impoverished nation that permits infants and children to be the poorest Americans.” — Marian Wright Edelman
In God We Trust
May 2, 2018 § 1 Comment
As we discussed yesterday, it was a dispute over whether the local church held property in trust for the denomination that brought First Presbyterian Church of Starkville into litigation with the Presbytery of Saint Andrew, PCUSA.
Justice Randolph’s majority opinion in Presbytery of Saint Andrew, PCUSA v. First Presbyterian Church PCUSA of Starkville, Mississippi, decided April 12, 2018, includes a precise summary of the law of trusts in Mississippi. I thought it would be something you might find useful:
¶23. Generally, trusts are classified under two broad categories: (1) express trusts and (2) implied trusts. Mississippi law requires that “no trust of or in any real property can be created except by written instrument signed by the party who declares or creates such trust. . . .” Miss. Code Ann. § 91-8-407 (Rev. 2013). Neither party asserted the existence of any writing signed by the proper FPC officials after authorization that satisfies Section 91-8-407,whether by original deed or separate trust instrument. Likewise, no declaration of trust is filed in the land records of Oktibbeha County, Mississippi, as provided by Section 91-8-407(b)(2).
¶24. No express trusts were entered into by the parties under traditional Mississippi trust law. No reference exists in any deed to creation of a trust relationship. It follows that no clear expression of an intent to create a trust exists, nor any reference even to the term “trust.” Neither party has asserted the opposite. Likewise, no separate document such as a trust instrument exists in writing. Again, neither party asserts the contrary.
¶25. None of the elements of creation of an express trust are present, such as the writing, the clear intent of the trustor, or the confirming authority of creation of a trust and the transfer of property by the governing body. See Church of God Pentecostal, 716 So. 2d at 208. Therefore, no traditional express trust nor any legally enforceable and separate traditional trust instrument exists or existed that would operate to vest a beneficial interest in and over the legally titled property of FPC to PCUSA.
¶26. While an express trust must be written, implied trusts differ in that they arise by implication of the law or are presumed from the circumstances. Mississippi recognizes two types of implied trusts: (1) constructive trusts and (2) resulting trusts.
¶27. A constructive trust is a judicially imposed remedy used to prevent unjust enrichment when one party wrongfully retains title to property. McNeil v. Hester, 753 So. 2d 1057, 1064 (Miss. 2000). FPC purchased the property at issue. No evidence exists that PCUSA invested any funds into the acquisition of any of the parcels of land. No evidence of any documents, oral conversations, minutes, or other written or oral supporting evidence exists that any arrangement of trust was contemplated in the tradition of a constructive trust. No constructive trust is implied by law based on the facts as agreed upon by the parties.
¶28. A resulting trust “is designed to give effect to the unwritten but actual intention of the parties at the time of the acquisition of title to the affected property.” Robert E. Williford, Trusts, 8 Encyclopedia of Mississippi Law § 73:2, 422 (2001). Additionally, Section 91-8-407(a)(2) specifically requires the intention to create a trust. When FPC incorporated in 2003, no intention to create a trust or create an express trust relationship existed. Furthermore, it is clear that PCUS disclaimed any interest in church trust property until just before the merger forming PCUSA. Although a trust provision was placed in the constitution when PCUSA was formed, the local churches were granted the right to opt out of that provision. FPC took measures on several different occasions to exercise its right to opt out. It did so in session meetings and bylaws of incorporation; it did so with reassurances by officers of PCUSA that compliance with the opt-out would allow FPC to hold title to its property. It is
reasonable to conclude the consistent position of FPC as representative of its intent that FPC wanted to remain, as it always had, the owner of its property. There is no evidence of a resulting trust.
Law and the Church
May 1, 2018 § 2 Comments
Church bodies wind up in court from time to time. Often the dispute is over which ecclesiastical entity or faction of the congregation will own or control church property or assets. Both sides tend to want to charge the other with heresy, or violation of church polity, or something along those lines, and they try to draw the court into their dispute.
It was a dispute over ownership of church property that brought First Presbyterian Church of Starkville (FPC) and The Presbytery of Saint Andrew into litigation. The Presbytery claimed that FPC, which wanted to withdraw from PCUSA, held the church property in trust for the denomination. FPC argued that it had opted out of any trust arrangement. Both sides filed motions for summary judgment. In his ruling in favor of FPC, the chancellor pointed out that the issue to be resolved was ownership of the property, and not doctrinal issues. The Presbytery appealed.
In Presbytery of St. Andrew, PCUSA v. First Presbyterian Church PCUSA of Starkville, Mississippi, the MSSC affirmed the chancellor’s ruling that FPC did not hold the church property in trust for the Presbytery. Judge Randolph’s April 12, 2018, opinion for the 7-2 majority explains the standard that the courts must apply in determining ecclesiastical legal disputes:
¶20. Mississippi has adopted the “neutral principles of law” approach for resolving church property disputes. See Schmidt v. Catholic Diocese of Biloxi, 18 So. 3d 814, 824 (Miss. 2009); Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So. 2d 200, 206 (Miss. 1998).
The neutral-principles approach “relies on objective, traditional concepts of trust and property law. . . .” Id. at 205. “It calls ‘for the completely secular examination of deeds to the church property, state statutes and existing local and general church constitutions, by-laws, canons, Books of Discipline and the like. . . .’ ” Id. (quoting Protestant Episcopal Church in Diocese of N.J. v. Graves, 83 N.J. 572, 417 A.2d 19, 23 (N.J. 1980), cert. denied sub nom. Moore v. Protestant Episcopal Church in Diocese of N.J., 449 U.S. 1131, 101 S. Ct. 954, 67 L. Ed. 2d 119 (1981)). Religious documents must be carefully scrutinized in purely secular terms without relying on religious precepts. Church of God Pentecostal, 716 So. 2d at 205-06 (citing [Jones v.] Wolf, 443 U.S. [595,] 604, 99 S. Ct. 3020, [61 L. Ed. 2d 775 (1979)]). If a deed, corporate charter, or religious document incorporates religious concepts in its provisions concerning ownership of the property, the court must defer to the authority of the ecclesiastical body so as to avoid resolving any religious controversy. Wolf, 443 U.S. at 604, 99 S. Ct. 3020 (citing Serbian Eastern Orthodox Diocese [v. Milivojevich], 426 U.S. [696,] 709, 96 S. Ct. 2372, [49 L. Ed. 2d 151 (19760])[sic]. Schmidt, 18 So. 3d at 824.
¶21. As the chancellor held, the underlying reason for the schism among FPC members and between FPC and the Presbytery is not the issue before this Court. The only issue to be decided is whether PCUSA ever had a trust interest in FPC’s property. We find that the chancellor properly found that it did not.
The opinion goes on to lay out an excellent summary of the law of trusts in Mississippi. We’ll talk about that tomorrow. For now, the main thing is to recognize that it’s not the court’s job to resolve doctrinal disputes or to usurp authority of religious governing bodies.
If you have a small-town, people practice, it’s practically inevitable that you will be asked to represent one side or another in a similar fracas. Feelings are hurt, emotions are raw, and things are said in anger that probably would be better left unsaid. The lawyers have their hands full trying to maintain control. My law partner decades ago handled some of these kinds of cases, and came to be known in the community as the “go-to” lawyer when schisms arose. He sued Ministers, Elders, Presbyteries, Bishops, Dioceses, and even Synods. In one of the last cases he handled before we went our separate ways, however, I told him that he had gone too far. He was suing an Apostle. To me, that just crossed a line.
Reprise: The Prudent Investor in Probate
April 30, 2018 § Leave a comment
Reprise replays posts from the past that you might find useful today.
Limitations on Guardianship Investments
April 7, 2014 § 3 Comments
Prudent investment and management of a ward’s assets is a fundamental duty of a guardian or conservator.
The task is complicated by the language of MCA 93-13-17, which states:
Every guardian, before he shall have authority to act, shall, unless security be dispensed with by will or writing or as hereinafter provided, enter into bond payable to the state, in such penalty and with such sureties as the court may require; . . . .
A guardian need not enter into bond, however, as to such part of the assets of the ward’s estate as may, pursuant to an order of the court in its discretion, be deposited in any one or more banking corporations, building and loan associations or savings and loan associations in this state so long as such deposits are fully insured, such deposits there to remain until the further order of the court, and a certified copy of the order for deposit having been furnished the depository or depositories and its receipt acknowledged.
MCA 91-13-1, et seq. set out the rules for fiduciary investments, including the types of investment instruments permitted and the manner of holding and trading such investments. No matter what the investment instrument, however, bond is required by 93-13-17, unless the money is deposited into a “fully insured” account at either (a) a banking corporation located in Mississippi; or (b) a building and loan association located in Mississippi; or (c) a savings and loan association located in Mississippi; AND the institution signs acknowledgment of receipt of the court order that no funds will be expended without court authorization.
That thicket of requirements is what Natalie Deason encountered when she tried to get chancery court authorization to invest the substantial settlement proceeds that her son, Blaine, received as a result of his father’s death in the Deepwater Horizon oil rig explosion. Natalie was appointed guardian, and she proposed to remove the guardianship to Louisiana, where she had moved, and to make certain investments of the funds without bond. The chancellor appointed a guardian ad litem for Blaine.
Following a hearing, the chancellor rejected both the request to take the guardianship out of Mississippi and the investment plan, and Natalie appealed.
On appeal, the MSSC affirmed March 27, 2014, in Guardianship of Roshto: Deason v. Stinson. You can read the court’s ruling on the removal issue for yourself, as well as Justice King’s cogent dissent. As for the investment issue, Justice Coleman wrote for the majority:
¶17. The chancellor determined that, because Natalie’s proposed investment plan would not limit the funds to being placed in FDIC insured accounts from which funds could not be withdrawn without a court order, Mississippi Code Section 93-13-17 required the guardian post a bond in the full amount of the guardianship funds. The chancellor noted, and the parties had conceded, that “such a bond would be extremely difficult to find and that the annual premium would be exorbitant.” Regarding the use of a structured settlement, the chancellor expressed concern that “the minimal savings on income taxes would be offset by the cost of the bond and by the loss of potential increased earnings when the interest rates rise.” As to the proposal to put half of the money into a trust account, the chancellor held that “[a]llowing the funds to be placed outside the control of the [c]ourt, without bond, would be an abuse of the authority of the [c]ourt and neglectful of the duty to the minor.” The chancellor ordered Natalie to deposit the funds in an FDIC insured bank account in the state of Mississippi and to “avail herself of the benefits of investing through the CDARS plan to maximize protection of Blaine’s assets and minimize her record keeping.”
¶18. Natalie asserts that the trial court erred in requiring that the entirety of Blaine’s settlement funds be placed into CDs. She argues that doing so violates both the reasonably prudent investor standard that governs fiduciaries [Fn 4 See MCA 91-13-3] and the duty of a guardian to improve award’s estate. [Fn 5 See MCA 93-13-38]. She claims that interest rates and other considerations related to investment in CDs effectively garner a negative return on the investment. She also argues that bond requirements for the investments should be waived because, if they are not, “[Section] 93-13-17 effectively prohibits a guardian from investing in any investment other than a fully insured bank account when a ward’s assets are substantial – because either the guardian could not obtain a bond, or could not afford one.” She asserts that such a requirement conflicts with the prudent investment statute.
¶19. The plain language of the guardianship statutes unequivocally requires a bond to be posted if the ward’s estate is placed in non-insured investments … While we understand the desire to diversify Blaine’s money and the difficulties surrounding obtaining such a large bond, the plain language of the statute simply tied the chancellor’s hands. The testimony was that, for such a large amount, CDARS was the only practical manner in which the statute could be complied with – the only way that the funds could be deemed placed in Mississippi institutions and be fully insured such that the guardian’s bond could be waived. Under Section 93-13-17, the chancellor had no option but to place the investment in a fully insured program such as CDARS, or to require that Natalie post a bond. Thus, the chancellor did not err in requiring that the entire settlement be put into CDARS.
¶20. The chancellor heard extensive testimony on all the investment options, asked questions regarding the proposed investment strategies, requested additional research on various investment strategies, and issued a lengthy and detailed judgment explaining her decision on the investment of the ward’s settlement. In her order, the chancellor noted the guardian ad litem’s “serious reservations” about the proposed investment of Blaine’s funds, such as “the fluctuating stability of the economy, the recent failures of large investment companies . . . , the historically low interest rates [that] would affect the return on investment rate of any structured annuity, and the requirement that the guardianship assets be bonded for moneys not held in FDIC insured accounts.” The chancellor cited the court’s “duty to wards under its protection to ensure the proper management of the ward’s estate,” and it was evident throughout the proceedings that her primary concern was Blaine’s best interest. The record is clear that the chancellor very carefully considered all the options and made lengthy, detailed, and thorough findings of fact and conclusions of law. Even had the statute not tied the chancellor ’s hands, we would not find an abuse of discretion under such a circumstance.
CDARS is the Certificate of Deposit Account Registry Service, described earlier in the court’s opinion this way:
Through CDARS, someone with large sums of money can deposit and manage CDs through only one bank. That bank distributes the money among other banks for placement in CDs, ensuring that less than $250,000 goes to each bank. The depositor works only with the “base” bank, but his entire sum of money is FDIC insured because it is properly distributed among various financial institutions.
From time to time, lawyers present me with an investment plan that would in all likelihood benefit the ward over the long run. No matter how favorable the terms, however, we are bound by the restrictions of the statutes.
What You May Get with a Motion for Reconsideration
April 25, 2018 § Leave a comment
Continuing with yesterday’s R59 theme, we turn to the question of what, exactly, are you asking for when you make a R59 motion, and how does what you ask for shape what you’re likely to get?
It wound up being an issue for one Tracy Dixon. After the chancellor denied his request for modification, Tracy filed a “Motion for Reconsideration, Correction of Judgment, or in the Alternative for a New Trial.” The chancellor entered an order granting a new trial without ruling on the merits of any issues in the case. Without holding a new trial or hearing any further evidence, the chancellor entered a revised opinion and amended final judgment unfavorable to Tracy. He appealed.
The COA affirmed in Dixon v. Dixon, handed down February 6, 2018. Judge Wilson expounded for the 5-4 majority:
¶29. In his final issue on appeal, Tracy argues that the chancellor exceeded his authority under the Mississippi Rules of Civil Procedure by entering a revised opinion and amended final judgment. As discussed above, after the initial final judgment was entered (on February 10, 2016, nunc pro tunc January 26, 2016), Tracy filed a “Motion for Reconsideration, Correction of Judgment, Or In The Alternative For New Trial.” The chancellor then entered an order granting a “new trial,” which did not address or rule on the merits of any of the issues in the case. Finally, without holding a “new trial” or hearing any additional testimony or evidence, the chancellor entered a revised opinion and amended final judgment, which is the subject of this appeal. Tracy argues that the chancellor’s entry of a revised opinion and
amended final judgment violated Rule 59(d), which provides as follows:
Not later than ten days after entry of judgment the court may on its own initiative order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a timely motion for a new trial for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor.
M.R.C.P. 59(d). Specifically, Tracy argues that the chancellor effectively ordered a “new trial”—either sua sponte or “for a reason not stated in [Tracy’s timely] motion” for a new trial. Id. If the former, Tracy says that the chancellor violated Rule 59(d) by acting more than “ten days after entry of judgment.” Id. If the latter, Tracy says that the chancellor violated Rule 59(d) by not “giving [him] notice and an opportunity to be heard.” Id.
¶30. We conclude that Tracy has misinterpreted the case’s procedural history and the chancellor’s rulings. Tracy’s “Motion for Reconsideration” primarily sought to alter or amend the judgment in various respects—he sought to change the final judgment based on the evidence already presented, not a “new trial.” In fact, the motion’s prayer for relief did not even mention a “new trial.” Rule 59(a)-(d) governs a motion for a new trial. However, Rule 59(e) governs a motion to alter or amend the judgment.
¶31. Rule 59(e) simply provides that “[a] motion to alter or amend the judgment shall be filed not later than ten days after entry of judgment.” M.R.C.P. 59(e). Interpreting the nearly identical federal rule, [Fn omitted] federal courts have held that “[a] judge may enlarge the issues to be
considered in acting on a timely motion under Rule [59(e)].” Charles v. Daley, 799 F.2d 343, 347 (7th Cir. 1986). The court may amend any part of the judgment, and the court is not limited to the grounds raised in the motion. EEOC v. United Ass’n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of the U.S. & Canada, Local No. 120, 235 F.3d 244, 250 (6th Cir. 2000). “The salient fact is that a motion to amend judgment was timely filed. Such gave the [trial] court the power and jurisdiction to amend the judgment for any reason, if it chose to do so, and it was not limited to the ground set forth in the motion itself.” Varley v. Tampax Inc., 855 F.2d 696, 699 (10th Cir. 1988); accord Bullock v. Buck,
611 F. App’x 744, 746 n.2 (3d Cir. 2015) (“In ruling on a Rule 59(e) motion, a District Court is not limited to the grounds set forth in the motion itself.”); Walker v. Walker, 216 So. 3d 1262, 1272-74 (Ala. Ct. Civ. App. 2016).
¶32. We conclude that these decisions are consistent with our Supreme Court’s recognition of a trial court’s “broad[] discretionary authority under Rule 59(e) to grant relief.” Bruce v. Bruce, 587 So. 2d 898, 904 (Miss. 1991). Our Supreme Court has held that “[w]hen hearing a motion under Rule 59(e), a trial court proceeds de novo, if not ab initio.” Id. “Rule 59(e) provides the trial court the proverbial chance to correct its own error . . . .” Id.
¶33. Tracy’s filing of a timely motion to alter or amend the judgment under Rule 59(e) suspended the finality of the judgment and permitted the chancellor to consider the various issues in this case “de novo, if not ab initio.” Id. At that point, the chancellor had “the power and jurisdiction to amend the judgment for any reason, if it chose to do so, and it was not limited to the ground set forth in the motion itself.” Varley, 855 F.2d at 699. On appeal, we review the chancellor’s amended final judgment on its own merits.
So R 59(e) is one of those proverbial two-edged swords, kind of like asking your law-school professor to look back over your paper to see whether she could possibly find that extra point on the exam to get you that 3.0; the search might take the result in the opposite direction.
The Rule 59 Motion and the Scope of the Appeal
April 24, 2018 § Leave a comment
Can an MRCP 59 motion that is limited in scope have the effect of limiting the scope of your appeal?
Jennifer Baumbach argued in her appeal to the COA that her ex, Robert, had foregone the issue of child custody by not raising it in his R59 motion following entry of their divorce judgment. In the case of Baumbach v. Baumbach, decided April 3, 2018, the court rebuffed her argument, per Judge Barnes:
¶20. Citing Jennifer’s previous attempts to interfere with his visitation, Robert claims the chancellor’s decision to award Jennifer sole physical custody of the children “was against the weight of the evidence and should be overturned.” Jennifer contends that because Robert did not address the issue of custody in his motion to amend the judgment, he is procedurally barred from asserting it on appeal. However, in reference to Mississippi Rule of Civil Procedure 59, the Mississippi Supreme Court has stated:
[Although i]t is clearly the better practice to include all potential assignments of error in a motion for new trial . . . when the assignment of error is based on an issue [that] has been decided by the trial court and duly recorded in the court reporter’s transcript, . . . [an appellate court] may consider it regardless of whether it was raised in the motion for new trial.
Kiddy v. Lipscomb, 628 So. 2d 1355, 1359 (Miss. 1993); see also Jackson v. State, 423 So. 2d 129, 131 (Miss. 1982) (“[I]t is not necessary to make a motion for a new trial grounded upon errors shown in the official transcript of the record, including the pleadings, transcribed evidence, instructions, verdict[,] and judgment of the court.”). Since the issue of child custody was clearly decided by the chancery court at trial, we find any failure to raise this issue in Robert’s motion to alter or amend the judgment does not bar it from review on appeal.
That certainly has been the rule in chancery court bench trials from time immemorial, or at least as long as I can remember. I’ve posted about it previously here and here.
Notwithstanding all that, I still encourage you to plead the figurative kitchen sink in your R59 motions. A post explaining my thoughts on the matter is at this link.
The Better Chancery Practice Blog 