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.
Butting In
September 25, 2017 § 2 Comments
The Smiths, paternal grandparents of 3-year-old Zach, want to hire you to get custody of of him from his parents, who have been jailed over some meth charges. The Smiths just discovered that the Johnsons, the maternal grandparents, have already filed an action in chancery court to do that very thing, and the case is set for hearing in a week. What to do?
Your first thought is to file a counterclaim for the Smiths, seeking custody. But, after re-reading R13, you realize that counterclaims are between parties, and the Smiths are not parties.
You think then that maybe you should simply file a separate suit and ask the chancellor to consolidate them. That sounds kind of cumbersome, and leaves you and your clients out of the loop as to what is going on in the Johnsons’ original suit unless and until consolidation is granted.
Frustrated and on the verge of tears, wondering why you ever though law school was a good idea in the first place, you pace the floor of your office until an intern says, “Why don’t you file to intervene via Rule 24?” You scoff and dismiss the intern to go get the mail … and then you look at R24.
Voila! Intervention. It’s right there in the MRCP!
The first step in intervention is to file a motion to intervene in the action. The rule requires a “timely application.” The motion must state the grounds for the motion and must be accompanied by a proposed pleading setting forth the claim or defenses for which the intervention is sought.
Any party may intervene in an action:
- By right when a statute confers an unconditional right to intervene. So, obviously, the statutory right would be the ground for the motion; or
- By right when the applicant claims an interest in the subject matter of the suit and his ability to protect that interest may be impaired, unless existing parties can adequately protect that interest; or
- By permission when a statute confers a conditional right to intervene; or
- By permission when an applicant’ claim or defense and the main action have common questions of fact or law.
It is within the court’s discretion whether to allow the intervention. The court must consider whether the intervention will unduly delay or prejudice the rights of the original parties.
The Advisory Committee Notes cite authority to the effect that: (1) if one of the criteria for intervention by right are met, and there is a timely application, the court should grant intervention; (2) even if one or more of the criteria for permissive intervention are met, it is discretionary with the court whether to grant it; (3) any application to intervene must be timely, and the note cites the criteria the court must consider to determine timeliness; and (4) the determination of timeliness is in the trial court’s discretion and will not be overturned absent abuse of discretion.
Bottom line: You can’t just leap into the middle of an ongoing lawsuit without following R24.
September 22, 2017 § 5 Comments
Some reading and watching …
News of the World by Paulette Jiles. In post-Civil War Texas, Captain Jefferson Kyle is a circuit riding newsman who entertains small-town audiences by reading excerpts from major newspapers. He accepts an offer to return Johanna, a 6-year-old girl who has been held captive by Kiowas, to her family, and the book charms with the developing relationship between the 60-ish Kyle and the young girl who at first speaks only Kiowa. Their adventurous 400-mile journey from northern Texas almost to San Antonio makes for thrilling reading. This small book is worth your time.
Empire of the Summer Moon by S.C. Gwynne. The once-nearly invincible Comanches ruled the plains of Texas and eastern New Mexico. One of their great war chiefs, Quannah Parker, a white man, had been kidnapped as a child in one of their raids, and grew to be an implacable foe of the whites. This is his story, and that of the Comanches, and how their iron grip on the plains finally succumbed to the flood of white settlement and overwhelming U.S. military power.
The Earth is Weeping, by Peter Cozzens. A thoroughly-researched, fair, and even-handed account of the thirty years of conflict between the western Indian tribes and the United States government. Cozzens is the author of Black Hawk Down.
Bottle Rocket. Wes Anderson’s movie about three slackers who somehow manage to pull off a robbery, hide out, and then try another, all in a madcap attempt to avoid growing up and facing life. What happens to them as they are repeatedly slapped around by reality is at turns funny, pathetic, and head-shaking.
Lion. Based on the autobiographical book by Saroo Brierly, the true story of boy in India who is separated from his poverty-beset family in a remarkable chain of events, and is adopted by an Australian family. Tortured by vague recollections of his earlier life, he strives to find his Indian mother and siblings. It’s a moving, enthralling story.
Burn After Reading. From the Coen brothers, with Brad Pitt, Frances McDormand, George Clooney, Tilda Swinton, John Malkovich, and Richard Jenkins. Maybe not quite as crisp as many other Coen treats, but there are plenty of laughs in this black comedy about a fitness instructor who tries to blackmail a former CIA operative. Add in rampant adultery, clueless government intelligence agents, the Russian embassy, and plenty of Coen irony, and you have an entertainment that’s fun to watch.
Is Boles Still Good Law?
September 20, 2017 § Leave a comment
Earlier this month we talked about the MSSC’s decision in Lewis v. Pagel, in which the court overruled a long line of Mississippi cases that had held that venue is jurisdictional in divorce cases, and may not be waived.
That decision included the following footnote:
[Fn 3] In 2006—after Section 93-5-11 was amended—this Court, in dicta, found that Section 93-5-11’s venue requirement conferred subject-matter jurisdiction on the chancery courts. National Heritage Realty, Inc. v. Estate of Boles, 947 So. 2d 238, 248–49 (Miss. 2006) (applying Miss. Code Ann. § 91-7-63(1)). We decline to follow this interpretation of Section 93-5-11 post-amendment. It appears the Boles Court did not take the amendment into account. [Bold emphasis mine]
I posted about the Boles decision in a previous post raising this very same point: The Boles decision simply ignored that the statute had been amended and misstated the law of change of change of venue in divorce cases. The high court held that the chancellor erred in ordering an estate to be transferred from one county to another because venue is jurisdictional by statute, and the case may not be transferred, only dismissed.
But Boles is an estate case, you might point out. Yes, but the rationale of the Boles opinion analogized the situation in that estate case to the classic divorce venue statute, holding that the statute is the sole source of subject matter jurisdiction over estates. But wait — Article 6, Section 159(c), of the Mississippi Constitution specifically confers subject matter jurisdiction over “Matters testamentary and of administration” on the chancery court.
Applying the logic in Lewis v. Pagel, then, Boles should be bad law. Not only is the statute not the source of subject-matter jurisdiction in estate matters, the analogy relied on by the court back then was faulty and incorrect.
New Rule: When an Order is Effective
September 19, 2017 § 2 Comments
MRCP 58 specifies that a judgment must be entered by the clerk per R79(a) in order for it to be effective. That’s the rule for a judgment, but what is the rule for an order?
[Refresher … a judgment is a final, appealable ruling of the court that adjudicates all claims of all parties or, if fewer than all issues are resolved or fewer than all parties are affected, the judge includes a certificate per MRCP 54(b). An order, on the other hand, is a ruling by the court on matters brought before it in the course of litigation that do not finally resolve the issues in the case.]
That was the question before the MSSC in Graceland Care Center, et al. v. Hamlet, decided August 17, 2017. Here is how the court describes what happened:
¶1. Teresa Hamlet filed a motion for an extension of time to serve process, prior to the expiration of the 120-day deadline provided by Mississippi Rule of Civil Procedure 4(h). The trial judge granted the motion and signed an order, yet the order was not filed with the circuit clerk until the day before the granted extension expired, well after the expiration of the original, 120-day deadline. Hamlet served process on three defendants during the extension. On the same day the order was filed, Hamlet filed a second motion for time, which the trial court also granted. While Hamlet served process on the remaining defendants within the second extension period, the order granting the second extension was not filed with the clerk until three months after it was signed by the judge.
¶2. The defendants filed a motion to dismiss Hamlet’s complaint, arguing that the statute of limitations had run before the court’s order granting additional time to serve process had been entered by the clerk of court. The defendants further argued that Hamlet’s suit could not be revived by the untimely filed order. The trial court denied the defendants’ motion to dismiss . . .
In a 6-3 decision, the court affirmed. Justice King wrote for the majority:
¶27. Therefore, in cases involving ex parte motions, such as the present case, we find that the order becomes effective upon leaving the judge’s control. However, in cases where more than one party is involved and notice becomes essential, we find that an order becomes effective once it is officially entered into the record by the court clerk.
¶28. Of course, there also are certain other orders to which this general rule would not apply. For instance, temporary restraining orders and other emergency orders (such as domestic protective orders) are effective before filing with a clerk. See M.R.C.P. 65(b) (“[T]emporary restraining order . . . shall be filed forthwith in the clerk’s office and entered of record”). In addition, certain rulings of a trial judge that require immediate action, such as those under a judge’s contempt powers, would not be subject to the general rule.
¶29. This rule in no way limits the ability of the trial judge, where otherwise allowed by law, to enter an order nunc pro tunc, make an order retroactive or have it relate back for enforcement purposes. The purpose of this rule is to effectuate notice to the parties and establish some finality as relates to the running of deadlines.
So the rule now is that interlocutory orders are effective upon entry unless they are ex parte, in which case they are effective when they leave the judge’s control.
You need to read the entire opinion to get the rationale and understand how it applies. Also, while you’re at it, Coleman’s dissent, joined by Dickinson and Beam, has plenty of authority contra on the point.
_____________
Thanks to Attorney Andy Lowery for bringing this case to my attention.
