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.
Summoning the Unknown
April 23, 2018 § 4 Comments
It’s frustrating and expensive to find out that your summons by publication for unknown heirs is rejected because you didn’t do it right. Nine out of ten times the flaw is in the affidavit that is required to precede publication.
“What?” you say, “there must be an affidavit?”
Oui, mon ami. Consider the language of MRCP 4:
MRCP 4(c)(4)(D): When unknown heirs are made parties defendant in any proceeding in the chancery court, upon affidavit that the names of such heirs are unknown, the plaintiff may have publication of summons for them and such proceedings shall be thereupon in all respects as are authorized in the case of a nonresident defendant …
MRCP 4(d)(4)(A): If the defendant in any proceeding in a chancery court, or in any proceeding in any other court where process by publication is authorized by statute, be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry and the post office address of such defendant be stated in the complaint, petition, or affidavit, or if it be stated in such 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, upon filing the complaint or petition, account or other commencement of a proceeding, shall promptly prepare and publish a summons to the defendant to appear and defend the suit. The summons shall be substantially in the form set forth in Form 1-C.
Notice that the affidavit is required to be made and filed before publication.
Here’s the 1-2-3 of how to do it:
- Have your fiduciary or someone with personal knowledge sign an affidavit that (a) there are no other persons known to be heirs of the decedent, and, if there are, they are unknown to the affiant, (b) after diligent inquiry.
- The affidavit must be filed before issuance of the summons.
- The publication must be substantially in the form of Form 1-C.
That’s all there is to it. That will result in an effective publication.
It’s important that you do it right, because bad process is ineffective to confer jurisdiction. A judgment rendered without jurisdiction is void.
Here are some tips for the more zealous among you:
- Any sworn statement with the proper language filed before issuance of the summons will do the job, so why not revamp your form complaint to open an intestate estate to include the affidavit language.
- If you do a stand-alone complaint for determination of heirship, add a paragraph with the appropriate language and make sure it is sworn to by a client with knowledge. One lawyer I know added a prayer for determination of heirship to his estate-opening complaint so that he did not have to file a separate pleading.
- While you’re at it, erase all the faulty affidavits and pleadings from your cloud or hard drive lest you repeat the same old errors by using incorrect forms.
Why is all this necessary? Because MCA § 91-7-293 requires in part that “The executor or administrator shall file with his final account a written statement, under oath, of the names of the heirs or devisees and legatees of the estate, so far as known … the statement must aver that diligent inquiry has been made to learn the same without avail …”
This is a subject I have posted about often, and probably will again as long as lawyers keep tripping over themselves. You can access those prior posts by entering “unknown heirs” in the search box.
Mark Twain in his own Words
April 20, 2018 § Leave a comment
Mark Twain, born Samuel Clemens, died 108 years ago tomorrow. He died on April 21, 1910, at age 74.
His sharp humor crackles today as relevant and fresh as it was in the late nineteenth and early twentieth century. I think it’s fair to say that modern American humor learned much of its appreciation for irony and intelligence from his droll wit.
Enjoy these samples:
I haven’t a particle of confidence in a man who has no redeeming petty vices whatsoever.
Soap and education are not as sudden as a massacre, but they are more deadly in the long run.
He is now fast rising from affluence to poverty.
Barring that natural expression of villainy which we all have, the man looked honest enough.
Formerly, if you killed a man, it was possible that you were insane—but now, if you, having friends and money, kill a man, it is evidence that you are a lunatic.
A baby is an inestimable blessing and bother.
Reader, suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself.
When the doctrine of allegiance to party can utterly up-end a man’s moral constitution and make a temporary fool of him besides, what excuse are you going to offer for preaching it, teaching it, extending it, perpetuating it? Shall you say, the best good of the country demands allegiance to party? Shall you also say it demands that a man kick his truth and his conscience into the gutter, and become a mouthing lunatic, besides?
Get your facts first, and then you can distort them as much as you please.
There is nothing in the world like a persuasive speech to fuddle the mental apparatus and upset the convictions and debauch the emotions of an audience not practised in the tricks and delusions of oratory.
Loyalty to petrified opinions never yet broke a chain or freed a human soul in this world — and never will.
An experienced, industrious, ambitious, and often quite picturesque liar.
It does look as if Massachusetts were in a fair way to embarrass me with kindnesses this year. In the first place, a Massachusetts judge has just decided in open court that a Boston publisher may sell, not only his own property in a free and unfettered way, but also may as freely sell property which does not belong to him but to me; property which he has not bought and which I have not sold. Under this ruling I am now advertising that judge’s homestead for sale, and, if I make as good a sum out of it as I expect, I shall go on and sell out the rest of his property.
The difference between the almost right word and the right word is really a large matter—’tis the difference between the lightning-bug and the lightning.
Noise proves nothing. Often a hen who has merely laid an egg cackles as if she had laid an asteroid.
Honesty is the best policy — when there is money in it.
Prosperity is the best protector of principle.
You tell me whar a man gits his corn pone, en I’ll tell you what his ‘pinions is.
We all do no end of feeling, and we mistake it for thinking. And out of it we get an aggregation which we consider a boon. Its name is public opinion. It is held in reverence. Some think it the voice of God.
It is curious that physical courage should be so common in the world, and moral courage so rare.
The late Bill Nye once said “I have been told that Wagner’s music is better than it sounds.”
Travel is fatal to prejudice, bigotry, and narrow-mindedness, and many of our people need it sorely on these accounts. Broad, wholesome, charitable views of men and things cannot be acquired by vegetating in one little corner of the earth all one’s lifetime.
There isn’t time–so brief is life–for bickerings, apologies, heartburnings, callings to account. There is only time for loving–and but an instant, so to speak, for that.
The Test(s) for Unconscionability
April 17, 2018 § 1 Comment
Carl Smith filed an action to set aside or modify the final judgment in his divorce case, alleging coercion and unconscionability. The irreconcilable differences divorce, incorporating the agreement between his ex-wife Lisa Doe and him, was entered two and one-half years before the filing of Carl’s action. The chancellor rejected Carl’s arguments, and he appealed.
After addressing and disposing of Carl’s MRCP 60 issues, the MSSC affirmed in Smith v. Doe, decided January 25, 2018. On the issue of unconscionability, Justice Maxwell wrote for the 7-2 majority:
¶16. The chancellor alternatively found that, even if Carl’s filing was deemed timely under Rule 60, it still lacked merit. After review, we agree. While we find no abuse in the chancellor refusing to set aside the agreement under Rule 60(b), we also see no error in the chancellor’s finding Carl was not overly browbeaten or otherwise coerced into signing a procedurally or substantively unconscionable agreement.
A. Procedural Unconscionability
¶17. “Procedural unconscionability may be proved by showing ‘a lack of knowledge, lack of voluntariness, inconspicuous print, the use of complex legalistic language, disparity in sophistication or bargaining power of the parties and/or an opportunity to study the contract and inquire about the contract terms.’” East Ford, Inc. v. Taylor, 826 So. 2d 709, 714 (Miss. 2002) (quoting Pridgen v. Green Tree Fin. Servicing Corp., 88 F. Supp. 2d 655, 657 (S.D. Miss. 2000)). But here, the chancellor found none of these problems.
¶18. To the contrary, after sifting the testimony and evidence, the chancellor found Carl “was able to make the payments, he understood the terms ofthe contract[,] and he voluntarily entered into the Agreement.” Our review of the record shows strong support for these discretionary findings.
¶19. The agreement was incredibly clear. It emphasized that its terms strongly favored Lisa, and it mentioned why. The written explanation of Carl’s enhanced obligations was not inconspicuous or hidden in fine print or a footnote—it was front and center in the agreement.
¶20. Furthermore, Carl’s new procedure-based challenge is also completely at odds with his prior written acknowledgment that his and Lisa’s negotiations were even-handed and not the product of duress, coercion, or overreaching. The agreement says so:
ACKNOWLEDGMENT OF FAIRNESS IN EXECUTION OF DOCUMENT:
Husband and Wife agree that this Settlement Agreement is not entered into as a result of any fraud, duress, misrepresentation, overreaching, coercion, or undue influence. In executing this document, both Husband and Wife acknowledge and agree that they are free from any of these matters, and are executing this agreement as their own voluntary and free act, and that they do so knowingly and willingly . . . .
And his claim that Lisa kept him from obtaining counsel not only conflicts with her testimony but is also undercut by the agreement:
ATTORNEYS:
. . . Husband agrees that he has been encouraged to and has had adequate opportunity and has been free to seek his own legal representation or other advice concerning this matter, before he signed and obligated himself to this Settlement Agreement.
¶21. The chancellor essentially found Carl knew exactly what he was doing and exactly what he was obligating himself to do when he signed the settlement agreement. Indeed, according to the agreement, Carl accepted its strict terms based on “the unique difficulties in which [his] behavior has placed the family unit[.]” The chancellor recognized this and noted that “[Carl] was in a place of self-loathing and felt extreme guilt for his choices that had caused the destruction of his marriage and family.” That his extramarital activities and devious behavior gave Lisa the upper hand in negotiating a favorable settlement did not negate that Carl “freely and willingly” agreed to the settlement’s terms. Nor did Carl’s “self-imposed guilt” and Lisa’s “obvious hostility,” in the chancellor’s view, amount to an unconscionable disparity of bargaining power. Based on his advanced education, Carl was certainly aware of the finality of signed legal contracts and judgments. And the chancellor’s findings and the agreement’s express acknowledgments undermine Carl’s newly minted procedural-unconscionability claim.
B. Substantive Unconscionability
¶22. “Substantive unconscionability occurs when the terms of the agreement are so one-sided that no one in his right mind would agree to its terms.” West v. West, 891 So. 2d 203, 213 (Miss. 2004) (citing In re Johnson, 351 So. 2d 1339, 1341 (Miss. 1977)). Considering the agreement’s terms, the chancellor found Carl “was able to make the payments . . . .” And he understood the heightened terms, which he voluntarily accepted. Though the settlement agreement was disadvantageous to Carl, the chancellor could not find that no person in his senses would accept it. See id. This finding is supported by the record.
¶23. In addition, Carl testified he is “very stable” financially. Indeed, his Rule 8.05 [Fn omitted] disclosure shows a monthly surplus of more than $5,000 after support obligations, expenses, and taxes are paid. It is also undisputed that Carl has abided by the agreement’s terms, making all required payments for more than two-and-a-half years.
¶24. The chancellor did recognize support provisions are modifiable where an unanticipated substantial or material change in circumstances arises. See Wallace v. Bond, 745 So. 2d 844, 848-49 (Miss. 1999); McDonald v. McDonald, 683 So. 2d 929, 931 (Miss. 1996). But Carl did not suggest or prove his financial circumstances had materially changed. So the court found no showing of a material change in circumstances warranting a downward modification.
¶25. An agreement made between parties should ordinarily be enforced. Williams v. Williams, 37 So. 3d 1171, 1174 (Miss. 2010). And courts should “take a dim view of efforts to modify it, as we ordinarily do when persons seek relief from their improvident contracts.” Id. (quoting West, 891 So. 2d at 211). Absent a finding of unusual circumstances—like fraud, overreaching, or mistake—“parties are afforded wide latitude in entering property settlement agreements.” Id. (citing Steiner v. Steiner, 788 So. 2d 771, 776 (Miss. 2001)).
¶26. Here, the chancellor “expressly determined that no fraud or overreaching existed in this matter.” Thus, he deemed “all provisions of the agreements regarding fixed alimony or a division of property” nonmodifiable. We therefore find, even if Carl’s motion was not snagged on the chancellor’s Rule 60(b)(1) and Rule 60(b)(6) timeliness findings, the chancellor did not abuse his discretion in alternatively rejecting the merits of the unconscionability claims.
A couple of morals to this story come to mind …
- One is that the words of the agreement are powerful and binding. Some of that boilerplate you have been adding to your agreements can carry some serious weight. Why? Because the court looks first to the words used by the parties in trying to determine their intent. If Carl felt coerced in the inducement he should not have said expressly that he had not been coerced. If he was deprived of the right to counsel, he should not have signed off on the language to the contrary.
- Another is that it’s hard as the dickens to get a judgment — particularly an agreed judgment — set aside. Oh, it can be done, but it’s a herculean task.
The authority for unconscionability in this case is something you might use to analyze and present a claim that a pre-nuptial agreement does or does not meet the test of conscionability as set out in the MSSC’s 2015 Sanderson v. Sanderson case about which I posted at this link.
A Reminder of How the Albright Factors Count
April 16, 2018 § Leave a comment
In too many appeals, I read that the appellant challenges how the chancellor analyzed and applied some or all of the Albright factors.
The case of In re N.B., 135 So.3d 220, 227 (Miss. App. 2014), the court stated the rule:
An Albright analysis is not premised solely on a scoring system to determine which parent “wins[,]” … [a]nd our review for manifest error is not a mechanical check on the chancellor’s score card to see if she “tallied” each parent’s score correctly. Instead, we ask whether the chancellor considered all relevant facts, giving deference to the weight she assigns each factor. [quoting May v. May, 107 So.3d 1052, 1054 (¶ 8) (Miss. App. 2013)].
To put it another way, the appellate courts are not going to check the final scorecard for errors of judgment as to runs, hits, and errors; rather, the court looks at whether the chancellor considered all of the relevant facts and analyzed them in light of the factors, and the court will give deference to he judge’s decision on the weight to be assigned to each factor.
If the judge did consider all of the relevant facts and addressed the applicable Albright factors, the chancellor will be affirmed, and that includes the chancellor’s decision as to which factors to assign greater weight.
N.B. was quoted in the COA’s decision in In the Matter of Adoption of a minor Child: J.A.G. and S.G. v. C.T. and B.T., decided November 14, 2017.
Five Came Back Alive
April 13, 2018 § 2 Comments
In April, 2007, five newly-minted Mississippi jurists descended on the unsuspecting National Judicial College (NJC) in Reno, NV, for the General Jurisdiction Course required by Mississippi law. They returned home after two weeks, and NJC has never been the same.
Front row, L to R: Chancellor Edward Fenwick (6th), Chancellor Neil Harris (16th) Back row, L to R: County Court Judge Allen Couch (DeSoto); County Court Judge Derrick Parker (Yazoo); Chancellor Larry Primeaux (12th)
Charging for Medical Records
April 11, 2018 § Leave a comment
Jane’s Law Blog reports that there is a petition for interlocutory appeal before the MSSC filed by Neurospine LLC, a medical provider, from sanctions assessed by Jasper County Circuit Court for overcharging for medical records. You can read the details at this link.
Although the case reported is from a circuit court, it is of interest to chancery practitioners as well, since medical records play a role in many chancery proceedings. Are you (or your client) being overcharged? Read the authority cited in Jane’s post and judge for yourself.
Jane Tucker’s blog is a helpful resource to keep up with decisions of the appellate courts, as well as filings, pending issues, and interesting oral arguments and briefs.
