Spalding is Reversed
February 12, 2018 § 3 Comments
Last summer we posted here about the COA’s decision in Harris v. Harris, in which the court affirmed the chancellor’s decision to reduce alimony based on the ex-wife’s receipt of Social Security benefits derived from those of her husband. You can read my post at this link, if you care to. The chancellor and the COA relied on Spalding v. Spalding as authority for the proposition that the chancellor is required to give the alimony payer credit for Social Security benefits derivative of the payer’s.
The MSSC granted cert, and in Harris v. Harris, decided February 1, 2018, the court reversed the COA and the trial court, overruling Spalding. Here’s what Justice Chamberlin wrote for the court en banc:
¶19. Today, we hold that … Social Security benefits derived from the other spouse’s income do not constitute a special circumstance triggering an automatic reduction in alimony. When a spouse receives Social Security benefits derived from the other spouse’s income, the trial court must weigh all the circumstances of both parties and find that an unforseen material change in circumstances occurred to modify alimony. See Ivison, 762 So. 2d at 334 (holding that the circumstances of both parties are considered to determine whether there was a material change); see also
Tingle, 573 So. 2d 1389, 1391 (Miss. 1990) (holding that change in circumstances must be after-arising and unanticipated). To the extent that Spalding states otherwise, it is overruled.
You can read the other 18 paragraphs reasoning their way through the law of Mississippi and other jurisdictions to get to this point. The court remanded the case to the chancellor to analyze it under Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993) to determine whether modification was warranted, and, if so, how to modify.
Maybe it’s just me, but it seems that one of the murkiest areas of alimony law is what effect retirement has on the obligation. Retirement is, after all, a foreseeable event. Social Security benefits are foreseeable. What are we supposed to do? One of the easiest answers until this case was that Social Security benefits derived from the payer created a credit. Now that certainty is taken away. I think lawyers should spend more time negotiating over the future of retirement benefits. Clients absolutely do not want to think or talk about it until retirement is the 500-pound gorilla knocking at the front door. But this decision leaves your clients little choice but to deal with it now or engage in expensive and impoverishing litigation later.
Things Judges Wish They had Known Before They Took the Bench
February 9, 2018 § 1 Comment
The National Judicial College’s Case in Point Publication included a piece, “50 Things Judges Wish They had Known Before They Took the Bench.” I thought I would share some of these submitted by judges from around the country, including one from a Mississippi Chancery Judge; can you guess which quote, and from which judge (Hint: no, It was not I).
Before I became a judge I wish I had known …
“Your jokes become funnier, you can jump higher, and you are more interesting after you become a judge. But they aren’t, you can’t, and you aren’t. So don’t believe anything otherwise.”
“That some people will think their Google search is the same as your law degree.”
“That it would be incredibly isolating. Professionally and socially there are so many situations that require me to withdraw to avoid an ex parte contact or avoid what might be construed as an appearance of impropriety … So much of my work is sitting alone with a file and a computer writing opinions, and during hearings you sit alone listening, not talking. It is lonely work.”
“How many times litigants, whether pro se or represented by counsel, fail to provide basic facts necessary to make a proper decision.”
“That folks really would believe that my court would be just like Judge Judy’s.”
“How isolating the job would be. In a small town, the isolation is devastating.”
“Remember that when most parties leave your proceedings, they will probably not remember what you did or what you said — they will remember how you made them feel. Treat every party with courtesy and respect.”
“That the better the lawyers’ performance in the courtroom, the better the judge’s rulings Professionalism and competency are crucial to a fair and judicious system. Yet when I first sat on the bench, I gave advocates too much credit. Now I know better. And now I rule better.”
“I wish I had known (in my earlier life as an attorney) how I sounded to the judge when making an argument. I’d have said less.”
“Even if germane and on point, never — ever — use the term nudum pactum in a full courtroom.”
“I wish I’d known that certain legal terms and phrases like ‘co-equal’ and ‘shall be adequately funded’ seem to be used more like punch lines by many members of the other two branches of government.”
“Good intentions always come with a critic.”
“It’s better to do ahead and do good than to fear lack of authority.”
“Never, NEVER go on the bench with a full bladder.”
Amendment Fail
February 7, 2018 § 1 Comment
I see all sorts of ways that people try to amend their pleadings. Some simply file amended pleadings without leave of court, whether within or without time for responsive pleadings. Some get a court order to amend and do so. I have seen some get a court order and never file an amended pleading. A few even comply strictly with the rule.
The COA decision in Estate of Flowers: Flowers v. Estate of Flowers, Flowers and Lang, decided January 2, 2018, involved a motion for leave to amend pleadings following a R12(b)(6) dismissal, and the chancellor’s refusal to allow the amendment. The COA affirmed. Judge Carlton wrote for the court:
¶59. Finally, Claire and Jane appeal the denial of Claire’s motion for leave to admit her amended petition for compensatory and punitive damages. Claire and Jane argue that leave to amend should have been granted because none of the respondents asserted that they would
be prejudiced if the motion were granted.
¶60. In her amended petition, Claire sought to include claims against the various attorneys involved in the representation of Richard’s estate, Brenda’s estate, and the guardianship of D.A. At a hearing on Claire’s motion, the chancellor made a bench ruling wherein he granted Oakes’s Rule 12(b)(6) motion to dismiss Claire’s petition for failure to state a claim upon which relief could be granted. The chancellor also granted Oakes’s and the Meltons’ (among others) motions to strike themselves as defendants in the cause due to Claire’s failure to obtain leave from the court under Mississippi Rule of Civil Procedure 21 to add them.
¶61. As stated, in response to the chancellor’s order of dismissal under Rule 12(b)(6), on February 16, 2016, Claire filed a motion for leave to amend her petition for compensatory and punitive damages, and her amended petition for compensatory and punitive damages in accordance with Rule 15(a). In her motion, Claire stated that she “specifically requests that she be allowed to amend those portions of the complaints by which the court ruled were insufficient at stating a claim for relief. Those portions include stating fraud and negligence per se with the correct specificity.”
¶62. The defendants listed in Claire’s petition joined Oakes’s motion requesting that Claire’s motion for leave to amend be denied. The defendants argued that Claire failed to “attach a proposed amended petition that would permit the chancellor to determine whether justice requires that leave to amend be granted” and that the parties were “dismissed as [respondents] . . . as a result of [Claire’s] failure to obtain leave of court to add [them] as part[ies].”
¶63. We review the denial of a motion to amend for abuse of discretion. Crater v. Bank of New York Mellon, 203 So. 3d 16, 19 (¶7) (Miss. Ct. App. 2016). We will affirm the chancellor’s decision “unless the discretion he used is found to be arbitrary and clearly erroneous.” Breeden v. Buchanan, 164 So. 3d 1057, 1064 (¶27) (Miss. Ct. App. 2015) (quoting Poole ex rel. Poole v. Avara, 908 So. 2d 716, 721 (¶8) (Miss. 2005)).
¶64. Rule 15(a) provides as follows:
On sustaining a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), . . . leave to amend shall be granted when justice so requires upon conditions and within time as determined by the court, provided matters outside the pleadings are not presented at the hearing on the motion.
Regarding Rule 15 amendments to pleadings, the supreme court has held as follows:
While proposed amendments have been liberally permitted throughout Mississippi legal history and are encouraged under Rule 15[,] a party cannot fail to convey the subject matter of the proposed amendment to the trial judge and if they do so fail, no error can be predicated on the judge’s failure to allow the amendment.
Parker v. Miss. Game & Fish Comm’n, 555 So. 2d 725, 730-31 (Miss. 1989). Additionally, in Price v. Price, 430 So. 2d 848, 849 (Miss. 1983) (citing Watts v. Patton, 66 Miss. 54, 5 So. 628 (1888)), the supreme court explained that a chancellor’s refusal to allow the amendment of a pleading cannot be reviewed on appeal where the record fails to show the proposed amendment.
¶65. In his order denying Claire’s motion for leave to amend in accordance with Rule 15(a), the chancellor explained the following: “[T]he motion filed by [Claire] fails to state how she would amend her prior pleadings or fails to attach a proposed amended pleading which would allow the court to determine whether justice required that she be given leave to file amended pleadings[.]” The record reflects that the motion to amend filed by Claire contained only bare allegations and contained no facts or actions from which to determine the existence of a cause of action. See also M.R.C.P. 9(b) (providing that fraud must be pled with specificity); Faul v. Perlman, 104 So. 3d 148, 156 (¶26) (Miss. Ct. App. 2012)
(discussing the elements a plaintiff must show to establish negligence per se). The record reflects that the chancellor thus properly found that Claire failed to state a basis for amending her pleadings. See Parker, 555 So. 2d at 730-31.
¶66. Additionally, with respect to a claim of fraud, we recognize the following guidance:
[T]he facts on which the charge of fraud is predicated must be specifically stated with full definiteness of detail. No general averment of a fraudulent course of business, and no bare statement of a corrupt design on the part of the defendant, is sufficient. The acts themselves which are claimed to be fraudulent must be clearly set out. It must further appear by definite averment in what manner the fraudulent acts wrought injury to the complainant. Fraud cannot be inferred, but must be distinctly charged, and with such fullness and precision that a court of chancery would be enabled to grant full and complete relief and redress should the bill of complaint be taken as confessed.
Weir v. Jones, 84 Miss. 602, 36 So. 533, 534 (1904). Claire’s failure to provide a basis for amending her pleadings and her failure to plead fraud and negligence with the required specificity prevented the chancellor from determining whether Claire had a cause of action or just allegations without facts.
¶67. Furthermore, as previously stated, the record also shows that Oakes, Stuckey, Melton Jr., and Melton III were dismissed from the litigation as defendants because Claire failed to obtain leave of court before she added the attorneys as parties as required by Rule 21. Claire filed no appeal of the dismissal of the attorneys as parties. In Crater, 203 So. 3d at 21 (¶16), this Court addressed a Rule 15(a) motion to amend filed against a nonparty:
Because the motion to amend asserted claims only against a nonparty, devoid of any factual allegation, after the statute of limitations had run, and sought to exercise a statutory right that does not exist, the claims raised by [the petitioner] in her amended complaint were futile. Because the amendment was futile, the chancery court was not required to grant leave for the amendment. Therefore, the chancery judge did not abuse his discretion in ruling on the motion to dismiss prior to ruling on [the petitioner’s] motion to amend.
¶68. Accordingly, we find no abuse of discretion in the chancellor’s denial of Claire’s motion to amend.
Some afterthoughts:
- Of course, any amended pleading must comply with R15 in order to do its job. My suggestion is to read the rule. I’ll bet most of you will be surprised at how many times you’ve failed to do it right.
- When leave of court to amend is required, you must attach a copy of your proposed pleading so that the court can determine whether the motion should be granted. That’s especially true, as this case points out, where you are seeking to plead matters such as fraud that require specific allegations.
- If you do not attach a copy of a proposed pleading and the judge overrules your motion to amend, you can’t complain about it on appeal.
- When your pleadings are dismissed for failure to state a claim, don’t assume that you have the automatic right to amend. File a motion and attach your proposed pleading. Then, if the judge grants your motion, file the proposed pleading.
- Again: if the judge grants your motion to amend, remember to file the pleading.
- R21 requires a court order to add parties. In this case, the plaintiffs merely added parties without a court order, which allowed those parties to escape on a motion to dismiss, which snagged the plaintiffs on the statute of limitations (SOL).
- SOL is seldom fatal in chancery matters, but that’s no reason not to amend and join parties per the rules.
It Ain’t Over ’til it’s Over
February 6, 2018 § 1 Comment
It’s a hoary. ancient maxim of the law that “There must be an end to litigation,” a principle that was called into question in the case of Sandrock v. Sandrock, handed down from the COA on January 16, 2018.
The Sandrock saga began on August 1, 2005, when Jason Sandrock and his father Fred purported to enter into an agreement via a one-page, notarized document styled “Mortgage Agreement.” The agreement was for a 3,300 square-foot home in Bay St. Louis in exchange for 300 consecutive payments of $1,000 each. Neither Jason’s wife Cassie nor Fred’s wife Joellen were parties to the agreement. Jason and Cassie had been building the structure on Fred’s and Joellen’s property since November, 2004.
Before Jason and Cassie could move into their new digs, however, Hurricane Katrina severely damaged the house on August 29, 2005. The insurance company issued a check for $148, 601, to Jason, Fred, and Joellen. Jason was listed as the insured, and Fred and Joellen were listed as Mortgagees. An MDA grant check was issued to Jason, with no lienholder listed, in the amount of $149,327. Cassie was not named on either check. Jason turned over most of the money to Fred and Joellen.
On January 15, 2009, Jason and Cassie were divorced. In the divorce judgment, the chancellor found no credible evidence that Jason owed any debt to his parents for the property, and that the funds used to build the house were a gift to Jason and Cassie from Fred and Joellen. He also found that both Jason and Cassie had devoted significant time to building the house. In making equitable distribution, the chancellor ordered that the insurance and grant funds by divided equally, and for Cassie to execute a quitclaim deed to the property in favor of Jason.
In March, 2009, Cassie filed for contempt because Jason had not paid her the sums due. Jason counterclaimed asking the court to “correct” its divorce judgment to show that Fred and Joellen were owners of the property, and, therefore, that the insurance proceeds were properly theirs. The counterclaim was denied.
In May, 2009, Fred and Joellen filed a pleading seeking to intervene in the divorce action that had been adjudicated four months previously. Their motion was denied.
At this point, none of the court’s rulings or judgments had been appealed.
After the court denied their motion to intervene, Fred and Joellen filed a petition for judicial foreclosure on the property against Jason and Cassie.
On May 9, 2011, Jason filed an MRCP 60(b) motion asking for relief from the judgment to pay Cassie.
On February 23, 2012, a different chancellor from the one handling the divorce issues entered a judgment allowing the foreclosure in favor of Fred and Joellen against Jason. Cassie was not a record title holder. The court’s decision specifically did not adjudicate what effect its decision had on either the previous divorce judgment or Cassie’s interest in the money or equitable interest in the property.
On November 7, 2013, the chancellor denied Jason’s pending R60 motion.
On December 26, 2013, Jason filed a complaint for declaratory relief and injunction again seeking relief from the judgment. Following a hearing, the court denied Jason any relief on March 23, 2015. The chancellor — yet another different from the two previous — found that the relief sought by Jason was “nearly identical” to that he had sought earlier in his R60 motion. The chancellor found that, since Jason had not appealed the 2009 judgment, it was final.
Jason filed a timely R59 motion. After hearing the matter on April 7, 22016, the court denied the motion except to amend a prior order to state that Joellen had been a witness in the divorce proceeding.
Jason appealed from the denial of his R57 claim for declaratory judgment. Predictably, the COA affirmed. Judge Barnes wrote for a unanimous court:
¶18. As to the denial of Jason’s claims, under Rule 57(a) of the Mississippi Rules of Civil Procedure, “[c]ourts of record within their respective jurisdictions may declare rights, status, and other legal relations regardless of whether further relief is or could be claimed.” M.R.C.P. 57(a). On the other hand, a trial court may deny a complaint for declaratory judgment “where such judgment, if entered, would not terminate the uncertainty or controversy giving rise to the proceeding.” Id. Noting that Jason failed to appeal the 2009 divorce judgment, and Fred and Joellen did not appeal the denial of their motion to intervene, Chancellor Persons held:
Once a judgment becomes final, it is dispositive as to all issues arising from a claim that were, or could have been, asserted by the parties to the litigation. Trilogy Communications, Inc. v. Thomas Truck Lease, Inc., 790 So. 2d 881[, 885 (¶12)] (Miss. Ct. App. 2001).
With the exception of Jason’s additional claims that the divorce judgment was not properly enrolled, the relief requested by Jason in his Complaint for Declaratory Relief is nearly identical to the relief that he sought in his [c]ounter[c]laim to [c]orrect [the] judgment, and similar to the claim that he made in his Rule 60 motion, both of which were denied by the [c]ourt. In the absence of any timely[]filed notice of appeal or any pending appeal action filed on behalf of Jason Sandrock or Fred[] and Joellen Sandrock seeking relief from either the Judgment of Divorce or from the Order which denied intervention in the divorce action, the Final Judgment of Divorce, including the [s]tipulation executed by the parties, is a valid [j]udgment upon which this [c]ourt relies and upon which the parties are bound.
Subsequently, in his bench ruling denying the Appellants’ motions for reconsideration, the chancellor concluded:
The [c]ourt and the law seek[] finality. We have two judgments, both of which are final. To the extent they’re in conflict, no one appealed. In essence, you can’t do what should have been an appeal now in a declaratory judgment action, which, in essence, we have the issues [of] res judicata, law of the case, all sorts of the legal doctrines here that prohibit us – or me from reopening these things.
¶19. We find no abuse of discretion in the chancery court’s findings. The Mississippi Supreme Court has held that “[a] final judgment on the merits of an action precludes the parties and their privies from relitigating claims that were or could have been raised in that action.” Walton v. Bourgeois, 512 So. 2d 698, 701 (Miss. 1987). “A final judgment has been defined by this Court as a judgment adjudicating the merits of the controversy [that] settles all the issues as to all the parties.” Sanford v. Bd. of Supervisors, 421 So. 2d 488, 490-91 (Miss. 1982) (citations omitted). “[A]n order is considered final if it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” LaFontaine v. Holliday, 110 So. 3d 785, 787 (¶8) (Miss. 2013). Jason’s complaint is, quite simply, a collateral attack on the 2009 divorce judgment, which awarded one-half of the insurance and grant proceeds to Cassie. The 2009 judgment, despite the Appellants’ argument to the contrary, is a final judgment. While not contained in the record, the chancery court noted that Jason had filed a counterclaim to correct the judgment, which was denied by the court. His Rule 60 motion was also denied. He did not appeal either decision. Thus, his request for declaratory relief is barred. The supreme court has held: “Res judicata bars all issues that might have been (or could have been) raised and decided in the initial suit, plus all issues that were actually decided in the first cause of action.” Little v. V & G Welding Supply Inc., 704 So. 2d 1336, 1337 (¶8) (Miss. 1997) (citation omitted). Additionally,
[r]es judicata is fundamental to the equitable and efficient operation of the judiciary and “reflects the refusal of the law to tolerate a multiplicity of litigation.” Little . . ., 704 So. 2d [at] 1337 [(¶8)]. . . . The courts cannot revisit adjudicated claims and “all grounds for, or defenses to recovery that were available to the parties in the first action, regardless of whether they were asserted or determined in the prior proceeding, are barred from re[]litigation in a subsequent suit under the doctrine of res judicata.” Alexander v. Elzie, 621 So. 2d 909, 910 (Miss. 1992).
Harrison v. Chandler-Sampson Ins., 891 So. 2d 224, 232 (¶23) (Miss. 2005) (emphasis added).
¶20. For res judicata to apply, four identities must be present: “(1) identity of the subject matter of the action; (2) identity of the cause of/civil action; (3) identity of the parties to the cause of/civil action; and (4) identity of the quality or character of a person for or against whom the claim is made.” Miller v. Miller, 838 So. 2d 295, 297 (¶5) (Miss. Ct. App. 2002) (citations omitted). Here, the first two identities – the subject matter and the cause of action, namely the underlying facts and circumstances – are the same. In both the 2009 divorce judgment and the complaint for declaratory relief, Jason and Cassie are parties. The only difference between the two causes of action is that Jason added Fred and Joellen as defendants to the second cause. But since Jason made no claims against them, and they never acted as adverse parties to Jason (as evidenced by the fact they are now joined with him as appellants), we find the third identity requirement is met. As to the fourth identity, Cassie was named as a defendant in both causes of action. Therefore, we find all four identities are present.
¶21. Accordingly, we affirm the chancery court’s denial of Jason’s complaint for declaratory relief.
In case you hadn’t counted, 88 months — seven years and four months — after the divorce action, we finally have achieved finality. That is, we have unless Jason files something else along the lines of his earlier attempts. Stay tuned.
Bills Still Alive
February 5, 2018 § Leave a comment
The deadline to report bills out of committee passed last Tuesday, and, as expected, many bills fell away. The survivors of interest to chancery practitioners are listed below.
You can access the text of the listed bills at this link.
HB 419 Authorize Mental Health Courts.
HB 801 Emergency placement of children in home of a relative.
HB 827 Register mobile home as real or personal property.
HB 936 Impose privilege tax on attorneys who practice in state but do not maintain domicile or regular business place here.
HB 962 Revise requirements to file petition for grandparent visitation.
HB 1084 Terminate parental rights as to child conceived of rape.
HB 1091 Clarify that wrongful death claim may be opened outside estate.
HB 1169 Definition of personal property.
HB 1306 Construction dispute resolution agreements void in certain conditions.
SB 2044 Expand authority of Chief Justice to appoint special judges.
SB 2473 Revise Residential Landlord/Tenant Act to provide more protection to landlords.
SB 2557 Revise age of majority.
SB 2782 Revise parties entitled to notice in muniment of title cases.
SB 2810 Allow DHS to perform criminal background checks on all employees, contractors, and volunteers.
SB 2886 Allow representative or guardian to place security freeze on credit report of protected consumer.
An old legislator once told me that “a bill is never dead until it’s dead, dead, dead.” Meaning that some measure that you were sure had been laid to rest can yet rise zombie-like from its tomb to creep fully into life. So if there is some bill that you have been following — pro or con — you might want to keep one eye peeled for it just to see whether it finds its way back out into the arena.
Contempt: How Much is Too Much?
January 31, 2018 § Leave a comment
Amaria and David Vassar became embroiled in a divorce in 2015. Amaria was required by a temporary order to pay the mortgage notes on the marital residence that was jointly owned by them, but only Amaria was obligated on the note, apparently due to David’s poor credit history.
Instead of paying the note as ordered, Amaria quit paying it and cut off the utilities to the house. By the time of the final hearing, Amaria had amassed an arrearage in mortgage payments of nearly $13,000.
In his final ruling on the divorce issues, the chancellor found Amaria in civil contempt and ordered that she be incarcerated until she pay the arrearage. Six days later, Amaria filed a motion for release from jail on the basis that the proof at trial had shown she was unable to pay it. That motion appears to have been denied. Twenty-one days later, she obtained new counsel and filed yet another motion for release based on the same grounds and further informing the court that she had military orders to report for duty. The motion again was unsuccessful. Finally, after she had been incarcerated more than 40 days, Amaria filed for bankruptcy on the mortgage note, and the chancellor ordered her to be released.
On appeal, Amaria challenged the incarceration order as well as other aspects of the court’s ruling. In Vassar v. Vasar, an October 17, 2017, ruling, the COA reversed and remanded. Judge Wilson wrote the majority opinion:
¶47. Amaria also argues that “[t]he chancellor erred in ordering [her] to be incarcerated until such time as she purged herself of contempt” by paying the nearly $13,000 mortgage arrearage on the marital home. Amaria does not contest the chancellor’s finding of contempt—only the order of incarceration. Amaria is no longer incarcerated. She was released after she spent forty-seven days in jail and filed for bankruptcy. Nonetheless, she argues that we should review the issue under the “capable of repetition yet evading review” exception to the mootness doctrine. We agree that the issue is appropriate to review and that the chancellor erred by incarcerating Amaria given her clear inability to purge herself of contempt by paying the mortgage arrearage.
¶48. “Inability to pay to avoid incarceration is a continuing defense as imprisonment does not accomplish the purpose of the civil contempt decree.” Riser v. Peterson, 566 So. 2d 210, 211 (Miss. 1990). In Riser, the Mississippi Supreme Court stated: “For the benefit of the bench and bar, let us attempt to state clearly that a litigant may be incarcerated for civil contempt for failure to pay a judgment but that litigant is always entitled to offer evidence of inability to pay as a defense, not to the contempt, but to the incarceration.” Id. at 212 (emphasis added; capitalization omitted).
¶49. Here, Amaria concedes that she was in contempt because she violated the chancery court’s temporary order requiring her to pay the mortgage and utilities on the marital home. Amaria’s only argument is that she should not have been incarcerated because the record is
clear that on July 1, 2016, she was unable to pay the $12,997.65 mortgage arrearage that the chancellor ordered her to pay as a condition of her release. We agree. Under Riser, even if inability to pay is not a defense to the underlying contempt, it is always a continuing defense to incarceration. The evidence was clear that on July 1, 2016, Amaria could not pay $12,997.65 or anything close to that amount. The chancellor therefore erred by ordering Amaria to be incarcerated until such time as she paid that amount.
¶50. Amaria’s release from jail after forty-seven days arguably renders moot her challenge to her incarceration. [Fn omitted] However, we may address an issue that is otherwise moot when “the following elements combine: (1) The challenged action was in its duration too short to be
fully litigated prior to its cessation or expiration; and (2) There was a reasonable expectation that the same complaining party would be subject to the same action again.” Strong v. Bostick, 420 So. 2d 1356, 1359 (Miss. 1982) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). This is known as the “capable of repetition yet evading review” exception to the mootness doctrine. Id. The United States Supreme Court has applied this exception in a case in which a father challenged his incarceration for failure to pay child support but was released before his case reached the Court. See Turner v. Rogers, 564 U.S. 431, 439-41 (2011); see also Koestler v. Koestler, 976 So. 2d 372, 379-80 (¶¶19-23) (Miss. Ct. App. 2008) (holding that an appeal from an involuntary civil commitment fit within the exception even though the individual had been discharged).
¶51. Although the facts of Turner are distinguishable in some respects, we agree with Amaria that this exception to the mootness doctrine is applicable. Amaria remained in jail for forty-seven days until she was released for reasons that are not explained in the record. She was never able to comply with the originally stated condition for her release—payment of the mortgage arrearage. In addition, the final judgment imposed a series of financial obligations that were beyond her ability to pay. While we have reversed and remanded these obligations for reconsideration, it is appropriate to address the order of incarceration because it is capable of repetition in the future and could again result in a period of incarceration too short for full litigation of the issue.
Inability to pay, then, is both a defense to the finding of contempt, and to the sentence of incarceration. As to the latter, it is a continuing defense, meaning that it may be asserted as often as the condition persists, as Amaria did in this case. The US Supreme Court’s Turner v. Rogers case cited above, is instructive on how incarceration relates to inability to pay.
Only caveat is that the defense of inability to pay is ticklishly difficult to prove under existing Mississippi case law. Check out the many cases cited in Professor Bell’s book (2nd Ed.) at page 490, Fns 133-135. I suggest that the defense of inability vis a vis contempt demands stronger proof than the defense to incarceration or continued incarceration. I know of no Mississippi cases to support this assertion, but I think Turner v. Rogers supports it.
Attorney’s Fees as Punitive Damages
January 30, 2018 § Leave a comment
May a chancellor award attorney’s fees in lieu of punitive damages?
That question was before the COA in the case of Cronier, et al. v. ALR Partners, et al., handed down December 12, 2017.
In that case, the Rainwaters (ALR Partners) sued for adverse possession of 9.75, naming the Croniers as defendants. Allen Cronier claimed ownership of the property in dispute. As the matter degenerated from discussion to litigation, Cronier erected fences and gates cutting off the Rainwaterses’ access to the contested property. Cronier even conveyed the disputed property to his twelve-year-old granddaughter, retaining a life estate. Following a trial the chancellor found in favor of the Rainwater claim of adverse possession, ordered Cronier to remove all of the fencing and gates from the property, and ordered Cronier to pay the Rainwaterses’ attorney’s fees and court costs. Cronier appealed, raising several issues, among which was that the court erred in awarding attorney’s fees.
The COA reversed and remanded only for the court to state specifically whether the award of attorney’s fees in lieu of punitive damages. Judge Barnes wrote the 9-1 decision, Judge Tindell concurring and dissenting in part:
¶35. The chancellor ordered the Croniers to pay the Rainwaterses’ attorney fees and court costs because the “actions of Allen in erecting a fence around the property were in clear disregard of the Rainwaterses’ rights.” Additionally, the chancellor stated that Allen “knew at the time he built the fence and conveyed the property to his minor granddaughter that there was a serious claim” to the disputed parcel.
¶36. At trial, the Rainwaterses submitted a statement for attorney fees of $9,790.05, not including ten hours spent at trial. The chancellor added ten hours of fees to this figure, but deducted five hours, because she did not find in favor of the Rainwaterses’ adverse possession claim for the southern portion of the property. Therefore, a total of $10,790.05 in attorney fees was awarded to the Rainwaterses.
¶37. Allen argues that attorney fees are not allowed in the absence of contractual provisions, statutory authority, or an award of punitive damages.
¶38. Mississippi follows the American rule for awards of attorney fees. “[A]bsent some statutory authority or contractual provision, attorneys’ fees cannot be awarded unless punitive damages are also proper.” Fulton v. Miss. Farm Bureau Cas. Ins., 105 So. 3d 284, 287-88 (¶16) (Miss. 2012). Punitive damages are only proper when the plaintiff shows by clear and convincing evidence the defendant acted with actual malice. Miss. Code Ann. § 11-1-65 (Rev. 2014). “[T]he plaintiff must demonstrate a willful or malicious wrong, or the gross, reckless disregard for the rights of others.” Wise v. Valley Bank, 861 So. 2d 1029, 1034 (¶15) (Miss. 2003).
¶39. Here, while there is no contractual provision, statutory authority, or specific award of punitive damages, the chancellor awarded attorney fees for the same reason the Rainwaterses requested punitive damages in their amended complaint (for the “Defendants’ reckless disregard of the Plaintiffs’ rights in this case”). The Mississippi Supreme Court has held that attorney fees may be awarded instead of punitive damages. Pursue Energy Corp. v. Abernathy, 77 So. 3d 1094, 1102 (¶26) (Miss. 2011) (citing Aqua-Culture Tech. Ltd. v. Holly, 677 So. 2d 171, 184 (Miss. 1996)). Here, the chancellor did not specify in her order that she was awarding attorney fees in lieu of punitive damages. However, as the trier of fact she
could have found Allen acted with actual malice in removing boundary markers, and constructing gates and a fence. Accordingly, we reverse and remand for clarification of whether punitive damages were awarded in the form of attorney fees.
So, the award of attorney’s fees will stand if on remand the chancellor finds that Cronier’s conduct was with actual malice, justifying punitive damages, and she specifies that the fee award is in lieu of punitive damages.
The language quoted above is a nice summary of the law of attorney-fee awards in Mississippi. You can recite pretty readily, I am sure, some other avenues for fee awards in chancery, among them contempt, divorce, and as a sanction for discovery misconduct.
The Primary Custody Myth
January 29, 2018 § 6 Comments
Many custody agreements provide for one party to have “primary physical custody.” Many judgments incorporate similar language. You will find the term sprinkled throughout appellate decisions.
The fact is, though, there is no such thing as primary custody.
A recent COA case illustrates just how the concept can lead to heartbreak for at least one of the parties. Judge Fair, writing for a unanimous court in Gaddis v. Wilkerson, decided January 9, 2018, laid out the law on the point:
¶7. Richard and Tracey have shared joint legal and physical custody of Logan since the original divorce decree. Joint physical custody does not require equal time with each parent, but it does require that the parents have “significant periods of physical custody . . . to assure a child of frequent and continuing contact with both parents.” Miss. Code Ann. § 93-5-24(5)(c) (Rev. 2013).
¶8. Tracey contends that the chancellor erred when he modified the schedule within the custody agreement. At trial and on appeal, both parties have incorrectly stated that Tracey has primary physical custody of Logan and that Richard has visitation. The original custody agreement, the 2013 modified custody agreement, and the appealed 2016 modified custody agreement all state that Tracey and Richard are both custodial parents – an important distinction for Richard. Neither party is categorized as having “primary physical custody,” nor is either party awarded visitation. Further our supreme court has emphasized that the term “primary physical custody” is not specified in section 93-5-24 and “cannot act to transform such express ‘joint physical custody’ into de facto sole physical custody with liberal visitation.” Porter v. Porter, 23 So. 3d 438, 446-47 (¶22) (Miss. 2009).
In other words, if you create a joint legal custody agreement, the court will enforce it as such. Even if Tracey had been expressly designated as the one with “primary custody,” Porter holds that the term does nothing to change the effect of joint physical custody. I suggest that the best practice is to banish the term from your documents.
Reprise: The Role of Chancery in the Wrongful Death Case
January 26, 2018 § Leave a comment
Reprise replays posts from the past that you might find useful today.
Wrongful Death and Chancery Court
March 6, 2014 § 1 Comment
If you are going to do any wrongful death practice at all, you must familiarize yourself with the MSSC’s decision in the seminal case of Long v. McKinney, 897 So.2d 160 (Miss. 2004), reh den. April 7, 2005.
The decision clarifies many important concepts involved in wrongful death claims, including priority of jurisdiction, the distinction between heirs and wrongful death beneficiaries, allocation of attorneys fees, costs and expenses, representation, conflicts of interest, and control of litigation.
What is important in this case to the chancery practitioner, however, is Justice Dickinson’s exposition on the role of chancery court.
There is much confusion in the bar, and perhaps the bench as well, about exactly what is the proper role of chancery court in wrongful death. Justice Dickinson expounds:
¶59. Perhaps no aspect of wrongful death litigation is more misunderstood and misapplied than the role of the chancery court.[Fn 13] With respect to a wrongful death suit to be pursued in circuit court, chancery jurisdiction should be invoked for the following purposes:
Fn 13. The misunderstanding can be partly attributed to the Uniform Chancery Court Rules, which address petitions for authority to compromise, and petitions for allowance of attorney fees, in wrongful death suits. U.C.C.R. 6.10, 6.12. These rules apply only to wrongful death suits which require chancery jurisdiction. See discussion infra.
Estate.
¶60. In the event the litigants wish to pursue a claim on behalf of the estate of the deceased, [Fn 14] such estate must, of course, be opened and administered through the chancery court. As is true in all estates administered through the chancery court, chancery approval is required for the appointment of the personal representative of the estate, whether executor, executrix, administrator or administratrix.
Fn 14. We recognize that, because of the limited recovery available to the estate in many cases, litigants may choose, with advice of counsel, to proceed without including a claim on behalf of the personal representative or the estate. As discussed infra, such decision should be made only after full disclosure to all who might benefit from the estate.
¶61. There is no general requirement under law that the personal representative obtain chancery approval to pursue the claims of the estate in the litigation. Nor is there a general requirement that counsel representing the personal representative and the estate in the litigation obtain prior chancery approval of such representation or the agreement for compensation of counsel. However, obtaining such prior approval is a widely accepted and wise practice.[Fn15] Such prior approval will, in most instances, avoid difficulty when the chancellor is approached for an order approving the accountings and the final distribution of estate proceeds, where such payments include compensation to counsel.
Fn 15. This is especially true where counsel representing the estate in the wrongful death litigation has not agreed, and does not intend, to represent the estate generally.
¶62. Where a recovery is had by the estate in the litigation, the proceeds must be administered and distributed though the chancery court in the same manner as other assets of the estate, and counsel for the estate must be paid from estate proceeds or assets, upon approval of the chancery court in the same manner as other debts and obligations of the estate. * * *
Minors.
¶66. Frequently, wrongful death litigation will involve a minor, either as an heir of the estate, a wrongful death beneficiary, or both. In such cases, the representation of the minor’s interests, and any agreement for the payment of attorney fees from the minor’s share of proceeds, must be approved by a chancellor, as in other cases. [BCP Note: settlement of the minor’s claim must also be approved by the chncellor, in the same manner as any other minor’s settlement.]
Determination of wrongful death beneficiaries.
¶67. Section 11-7-13 provides that wrongful death litigation may be brought by the personal representative of the deceased or by any one or more of several statutory beneficiaries, for the benefit of all entitled to recover. Unless all persons entitled to recover join in the suit, those who do have a fiduciary obligation to those do not. Miss. Code Ann § 91-1-27 (Rev. 2004) provides for a chancery determination of the heirs at law of a decedent; that is, those who inherit in the absence of a will. Although our statutes mandate no specific procedure for the identification of wrongful death beneficiaries, a chancery court may make such determinations. Those bringing the action, together with their counsel, have a duty to identify the beneficiaries, and they should do so early in the proceedings. [Fn 16]
Fn 16. Recognizing that the lack of a specific procedural framework for determining wrongful death beneficiaries is a handicap for practitioners, this Court – in its continuing review of procedural rules – will address this need.
One of the biggest sources of confusion, in my experience, is the disconnect between the status of persons as heirs and as wrongful death beneficiaries. The categories overlap, but they are not the same. A person may be a wrongful death beneficiary, and yet not be an heir. You need to read and stidy the statutes to learn the difference and to be able to identify all of the individuals who must be included. Merely filing an action to determine and discover unknown heirs at law will not identify all the wrongful death beneficiaries.
From a chancellor’s perspective, I think the most important aspect of all is that of the minor’s settlement. You can make any agreement in circuit court about how to settle the wrongful death action, but you can not tie the hands of the chancellor as to whether the settlement is reasonable or adequate for the child(ren), or as the amount of fees to which it is subject, or to its amount.
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