October 11, 2017 § Leave a comment
Some reader(s) apparently have had too much time on their hands and nominated this blog for the Expert Institute’s Best Legal Blog Contest. In honor of whoever did this, I’m passing on this link where you can vote in the “Niche and Specialty Blog category.”
The contest is underway and ends on November 3, 2017, at midnight. Happy voting!
A Few Thoughts on Process
October 10, 2017 § Leave a comment
- The sole purpose of process is to give parties notice that there is a legal proceeding involving them. They are invited to participate.
- Once a party is served with process, or once a party voluntarily appears and participates, the court has personal jurisdiction over that person for the entire remainder of the proceeding, all the way to final judgment, and no further process is necessary (But see the exception of R81 below).
- When a party voluntarily submits to the personal jurisdiction of the court, no further process is necessary. A person can voluntarily submit to personal jurisdiction by filing a lawsuit as a plaintiff, or by filing a responsive pleading and/or counterclaim, or by simply appearing personally and participating.
- R4 process requires the defendant to answer within 30 days.
- R81 process requires the defendant to appear on a day certain. No answer is required, but the defendant may file an answer if he chooses, or if the court orders it. If the defendant does not appear on the specified day, or has not filed a responsive pleading contesting the matter on or before the specified day, then the court can hear the matter on the merits and rule accordingly.
- We refer to the day specified in the R81 summons as the “return day” because process is “returnable” to that day.
- If a matter can not be heard for whatever reason on the return day, then you must get an order signed that same day continuing the case to another day certain. And every continuance order thereafter has to be entered on the same day as that to which the case was continued. If you do not do this, your R81 process will be void, and you will have to re-issue process.
- You do not need to issue process to the plaintiff when you file a counterclaim. That’s because the court already has personal jurisdiction over the plaintiff because he invoked the jurisdiction of the court. Once a party is in the court’s personal jurisdiction, you simply need to give notice per MRCP 5.
- You can not obtain process by publication over a resident unless you first make diligent inquiry for that person’s whereabouts and then file an affidavit per R4(D)(4) that he is a resident but is not to be found in the state. Only after the affidavit is filed can the publication commence.
Musical Appellate Chairs
October 9, 2017 § Leave a comment
Catching up on the MSSC and COA news …
- Justice Jess Dickinson left the MSSC September 15, 2017, to take over the Department of Child Protective Services. Dickinson served on the high court for nearly 14 years.
- Judge David Ishee of the COA became Justice David Ishee of the MSSC on September 18, 2017, replacing Dickinson.
- Governor Bryant tapped Senator Sean Tindell of Gulfport to take Ishee’s place on the COA, effective November 2, 2017. Tindell was an assistant district attorney for the Second Circuit Court District from 2002 to 2007, and has been in private practice since then. He was elected to the legislature in 2012, and served as Chairman of the Senate Judiciary A Committee.
In other news, former COA Judge Larry Roberts was appointed to serve temporarily as Circuit Judge in the Tenth District, taking the place of Judge Justin Cobb, who died September 9, 2017. Roberts is expected to serve until Governor Bryant names a replacement.
“Quote Unquote”
October 6, 2017 § 4 Comments
“The quality of mercy is not strain’d
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes;
‘Tis mightiest in the mightiest; it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God’s
When mercy seasons justice.” — William Shakespeare, The Merchant of Venice, Act IV, Scene I
“The power of just mercy is that it belongs to the undeserving. It’s when mercy is least expected that it’s most potent — strong enough to break the cycle of victimization and victimhood, retribution and suffering. It has the power to heal the cycle of psychic harm and injuries that lead to aggression and violence, abuse of power, mass incarceration.” — Bryan Stevenson
“If you want peace, work for justice.” — Pope Paul VI
October 5, 2017 § 1 Comment
Some reader(s) apparently have had too much time on their hands and nominated this blog for the Expert Institute’s Best Legal Blog Contest. In honor of whoever did this, I’m passing on this link where you can vote in the “Niche and Specialty Blog category.”
The contest is underway and ends on November 3, 2017, at midnight. Happy voting!
The Extracurricular Trap
October 3, 2017 § 3 Comments
Divorcing parents often want to haggle over who will pay for Junior to participate in Youth Soccer Premier League, gymnastics, and all of the other manifold interests and activities that occupy nearly every waking hour of today’s children. When at last the lawyers have gotten their clients to agree, the lawyers without a lot of thought produce a provision like this for the PSA:
The parties agree that they will each pay one-half of the cost for Junior to participate in extracurricular activities.
That thorny issue settled, the lawyers then turn their attention to more substantial matters — like who will get custody of the cocker spaniel.
Now, we know that the parties above want Junior to participate in youth soccer and gymnastics, but is that what they agreed to in that language above?
Before we go on, remember that when you call upon the judge to interpret the parties’ agreement, she is bound by the language contained in its four corners. She may not receive parol evidence to understand what was intended unless she first finds that the language is ambiguous. The language above is heartbreakingly unambiguous. So the parties are stuck with its plain meaning.
And what is its plain meaning?
The COA answered that question in the case of Thomas v. Crews, 203 So.3d 701, 706-7 (Miss. App. 2016). In that case, the chancellor had been called upon to resolve a dispute between the parties over the meaning of the term “extracurricular activities.” Here is what the court said:
¶ 22. The chancellor’s clarification of the term “extracurricular” is also supported by substantial credible evidence in the record. The chancellor clarified that “extracurricular expenses are those incurred through school. … [S]chool volleyball is different than competitive volleyball [.] … [I]f the Father wants to pay, that will be up to the Father.” [Fn 2] At times, Thomas’s hearing testimony made the same distinction that the court’s order does, but, at other times, Thomas’s testimony equated school volleyball and competitive volleyball as “extracurricular.” This confusion justified the chancellor’s clarification.
¶ 23. When first discussing the volleyball teams, Thomas clearly made a distinction between school volleyball as extracurricular and competitive volleyball as different. Thomas referred to “school volleyball” as “the first real extracurricular activity that [Lunden] was interested in.” Thomas then testified that Lunden expressed an interest in competitive volleyball. Detailing Thomas and Crews’s decision to allow Lunden to play competitive volleyball, Thomas testified, “[Crews] and I talked about it and … we agreed that we would split the expenses of the—the training fee and uniforms.” Thomas also made this distinction between the two types of volleyball when discussing Lunden’s volleyball schedule. In contrast, Thomas, on cross-examination, referenced competitive volleyball as an extracurricular activity, stating that Lunden’s “extracurricular activities are expanding. So if she’s playing volleyball in Hot Springs, Arkansas, if you want to see her then that’s where we have to go.” In light of this testimony, the chancellor did not abuse his discretion when he simply “remind[ed] both parties that extracurricular expenses are those incurred through school.”
[Fn 2] Extracurricular is defined as “outside the normal curriculum.” Extracurricular, The Oxford English Dictionary (2d ed. 1989). Extracurricular activities “are those sponsored by and usually held at school but that are not part of the standard academic curriculum.” Extracurricular Activities, definitions.uslegal.com/e/extracurricular-activities/.
So, to return to our hapless parties, the shared expenses “are limited to those that are those sponsored by and usually held at school but that are not part of the standard academic curriculum.” Not exactly what they intended at the time. At the end of the day, one party leaves happy, the other mad.
If the parties intend to include certain activities, then spell them out. Don’t rely on a catch-all phrase that might have unintended consequences.
Forum Shopping in Divorce Cases
October 2, 2017 § Leave a comment
I posted here previously about the Lewis v. Pagel case, which changed the law of venue in divorce cases. It held that venue relates to personal jurisdiction, which can be waived or conferred voluntarily, rather than subject matter jurisdiction, which may not be waived or conferred voluntarily. The law up to Pagel had been that divorce venue conferred subject matter jurisdiction. Pre Pagel, if venue was wrong, the court was deprived of subject matter jurisdiction and any judgment it entered would be void.
In that same post I questioned whether Pagel would give rise to forum shopping. If personal jurisdiction can be waived, and venue is a function of personal jurisdiction, then venue should likewise be waivable.
How would that work? One example would be where two pro se litigants in Jasper County decide they can get an ID divorce quicker and easier in Jones County. So they file there. Or in a contested case the lawyers, after exhausting negotiations, mutually decide with their clients to file for divorce in Hinds County where their offices are, instead of in Simpson County where the parties live. Can or should the courts in Jones and Hinds entertain those actions?
Well, the language of MCA 93-5-11 has a lot to say about it:
“All complaints, except those based solely on the ground of irreconcilable differences, must be filed in the county in which the plaintiff resides, if the defendant be a nonresident of this state, or be absent, so that process cannot be served; and the manner of making such parties defendants so as to authorize a judgment against them in other chancery cases, shall be observed. If the defendant be a resident of this state, the complaint shall be filed in the county in which such defendant resides or may be found at the time, or in the county of the residence of the parties at the time of separation, if the plaintiff be still a resident of such county when the suit is instituted.
The operative verbs are must and shall, so the statute mandates where venue will lie. Pagel, on the other hand, says that venue only confers personal jurisdiction, which may always be waived.
So which controls? My best guess is that most chancellors will say that the statute controls, and a divorce filed contrary to the statute will be transferred to the proper venue. The right to waive personal jurisdiction would have to yield to the mandatory language of the statute.
But that’s just me. Your local experience may vary, and there are nine justices on the MSSC, as well as another ten on the COA, who could see it completely differently. Stay tuned.
Reprise: Investing by the Fiduciary
September 29, 2017 § 1 Comment
Reprise replays posts from the past that you might find useful today.
INVESTMENT RESPONSIBILITIES OF FIDUCIARIES
July 30, 2012 § 3 Comments
Executors, administrators, guardians and conservators have a fiduciary duty to the beneficiaries or wards (trustees have their own, separate body of law, although they are fiduciaries also). The fiduciary’s duty (in the absence of explicit directions in a will) …
” … is to provide honest, intelligent management … [h]owever it might be more accurate to think of the [fiduciary] as a co-manager (and perhaps a junior co-manager at that) with the court being the other manager. The [fiduciary] can do very little without the prior approval of the court. The [fiduciary’s] responsibility is to be knowledgeable about the estate, to anticipate problems and dangers, as well as opportunities, to decide upon the intelligent and prudent thing to do, and then to go to the Chancellor to try to get the authority to do it.” Weems, Wills and Administration of Estates in Mississippi, 3rd Ed., §2.34, p. 65.
Absent directions in a will or court authorization, or specific authority by statute, the fiduciary has no authority to: bind the estate by contract such as a lease or note; purchase or sell real estate or any other asset; warrant title on behalf of the estate; borrow money for the estate; mortgage property of the estate; or even to continue a decedent’s business except to wind it up or as provided in MCA 91-7-173.
MCA §93-13-38 requires the guardian or conservator to improve the estate of the ward, and to “apply so much of the income, profit or body thereof as may be necessary for the comfortable maintenance and support of the ward and his family, if he have any, after obtaining an order of the court fixing the amount.” The duty of the fiduciary is to employ the funds in their hands profitably, and they may be liable on their bonds for failure to improve the estate.
Does that duty to improve the estate mean that there is a duty to invest?
The answer to that question, of course, is that every case is different, and several factors come into play, including:
- Whether the the amount of funds in excess of those needed in the immediate future to pay claims and administration expenses, and in the case of wards, the necessary, authorized expenses, make investment practical;
- The economic conditions in the markeplace;
- Whether in the case of a decedent’s estate that it will be open for a length of time that would make investment practical.
In the case of McNeil v. Hester, 753 So.2d 1075 (Miss. 2000), the court held that the fiduciary has no duty to invest because MCA 91-13-3 because that statute uses the permissive may rather than the mandatory shall.
But simply because there is no explicit statutory duty does not mean that not investing would be prudent. The fiduciary is under a duty to deal prudently with the estate, and in a given circumstance non-investment may be judged imprudent. MCA 91-13-3 says that the ” … fiduciary shall exercise the judgment and care under the circumstances then prevailing which men of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of the capital.”
MCA 91-13-3 and -5 allow certain investments to be made without specific authority of the court, giving the fiduciary some flexibility to park funds until a more prudent investment, if any, can be made. Those investments, unless prohibited by court order, include: time certificates of deposit; savings or other interest-bearing accounts of any state or national bank whose main office is located in Mississippi, and whose deposits are FDIC-insured; any state or federal savings and loan association whose main office is located in Mississippi, and the deposits of which are FSLIC-insured. Not included are credit union accounts, online banks, e-trade, Schwab or Fidelity, or the mayonnaise jar buried in the back yard.
Whether a given investment is prudent was the issue in the COA case of In re Estate of McGee, 982 So.2d 428 (Miss.App. 2007), in which the court held that, where the decedent had invested in the stock market for many years and the fiduciary had received his portfolio, which he put in the control of a reputable broker pursuant to court order, the fiduciary was not liable to the heirs when the portfolio declined in value after 9-11-01. The court pointed out that “administrators are not insurers or guarantors of the estate’s assets.” Citing Harper v. Harper, 491 So.2d 189, 198 (Miss. 1986).
So what exactly is and is not prudent? For guidance in addition to particular case law you might want to look at the Mississippi Uniform Prudent Investor Act, MCA 91-9-601- et seq., which actually applies to trustees, but would certainly be persuasive authority for any court to consider in weighing the prudence of any other fiduciary. Section 603 sets out factors for the court to consider as a standard of care. Other sections in the law address the duties of diversification, loyalty, impartiality, reasonability of cost, and care in delegation of management responsibility.
The attorney representing a fiduciary has a duty to advise him or her of the responsibilities involved, and to make sure that the fiduciary is acting prudently and in compliance with the law. The subject is more complex than the scope of this post, so consider this an introduction and prompt to study it in adequate depth to be of service to your clients.
[Much of the information here is derived from a presentation by Bob Williford, Esq. to the chancery judges last April]
September 27, 2017 § 3 Comments
Some reader(s) apparently have had too much time on their hands and nominated this blog for the Expert Institute’s Best Legal Blog Contest. In honor of whoever did this, I’m passing on this link where you can vote in the “Niche and Specialty Blog category.”
The contest is underway and ends on November 3, 2017, at midnight. Happy voting!
Trial by Checklist
September 26, 2017 § Leave a comment
If you’re a newcomer here, I want to acquaint you with the concept of what I call “checklists.” I’ve posted about it here numerous times. A post with a list of trial checklists is at this link. You can also find a checklists category up there on the right in the “Categories” search box.
We all know that the MSSC and COA have spelled out certain factors that the chancellor must consider to adjudicate custody, equitable distribution, alimony, and a host of other issues. The idea is that to help you make sure that you put on proof of each of the factors applicable to your case, you turn them into a checklist that is a template for your presentation of evidence.
As I said in a prior post:
Remember that these factors are the ones that must be decided by the judge in order to decide your case. In essence, the factors are the elements of the case that will determine its outcome. If you are not putting on proof as to each factor that applies in your case, you are running the risk that the Chancellor will find that there is not enough evidence to rule in your favor.
Practice Tip: When trying a case involving any of the foregoing issues, have a list of the factors applicable your case at hand, and methodically cover them in your questions for the witnesses. Give some thought to questions that will best develop evidence that will support a finding in your client’s favor for as many factors as possible, and how to minimize the impact of factors that are not in your favor.
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