Better, I Hope
June 14, 2017 § 9 Comments
It was seven years ago today that I started my quest via this blog to influence as many lawyers as I could to be better chancery practitioners, to reach higher, to be more professional, and to be the best lawyers they could be.
It has been gratifying to run into lawyers and judges who tell me that they do draw inspiration and useful information, and even humor, from this blog. Mission accomplished as to them.
When it comes time to hang up my robe and turn this office over to my successor, I will have been a successful chancellor if I inspired the lawyers with whom I came in contact to improve their practices and become better … better lawyers, better people, better at all they do. If, on the other hand, those who crossed my path are no better or are worse, then I failed.
That’s why I’ll continue this for the time being. It’s a quest to influence people, particularly lawyers. Oh, and along the way it’s even helped me make some friends.
Hybrid Alimony With a Bite
June 13, 2017 § Leave a comment
Brian and Ruth’e Korelitz were in negotiations to settle their divorce case in 2006. When it came time to address the alimony issue, one of them produced a proposed provision that required Brian to pay Ruth’e periodic alimony in reducing amounts in three-year increments until Brian’s retirement. In the course of negotiations, however, the parties agreed to some handwritten deletions and insertions so that the alimony provision ended up looking like this:
A. Periodic Alimony. [Brian] agrees to pay unto [Ruth’e] as periodic alimony the monthly sum of $2,850.00 per month, beginning the first day of the month immediately following execution of this Agreement for a period of thirty-six (36) months, reducing to $2,600.00 for a period of thirty-six (36) months, [and] reducing to $2,100.00 for a period of thirty-six (36) months. Periodic [A]limony shall then reduce to $1,750.00 until September 1, 2019, or [Brian’s] retirement, whichever occurs later, whereupon periodic alimony shall cease. Said periodic alimony shall be payable one-half on the 1st and one-half on the 15th of each month. In addition, such periodic alimony shall cease upon the remarriage of [Ruth’e] or upon the death of either party[,] whichever occurs first. The payments shall be deductible by [Brian] and includable as income by [Ruth’e], both for state and federal income tax purposes. [Handwritten addition as follows:] Said payments are further non-modifiable, except as set forth herein above.
All of the strikeouts and handwritten language were initialed by the parties. The agreement was approved by the court, and the parties were divorced.
In 2014, after Ruth’e had taken up with another man, Brian filed for modification to terminate based on the relationship. He also contended that he had suffered a reduction in income.
It should not surprise you that the chancellor denied his request, concluding that the agreement not only prohibited modification on its face, but also that it created a form of lump-sum alimony, which is unmodifiable anyway, so that neither Ruth’e’s relationship nor Brian’s income were relevant.
Brian appealed, and it should not surprise you that the COA affirmed. You can read Judge Ishee’s opinion in the case of Korelitz v. Korelitz at the link.
This case highlights several points:
- Hybrid alimony can be a tricky thing. The language above, with its edits, clearly shows the parties’ intent that these payments were not intended as periodic alimony, even though they were to cease on remarriage or death, and were deductible to Brian and income to Ruth’e. Often, though, the intent is not so clear, and if you leave it murky you are putting it into the hands of a judge who might not see it the same way you and your client did. A case in point is at this link.
- Keep in mind that the default setting for alimony is periodic. In other words, if the court can’t make out what kind of creature was intended, it must consider it to be periodic.
- I wonder whether Brian understood, when he initialed that handwritten language, that he was signing away his right to ask the court to do the very thing he took Ruth’e back to court to do? I’m sure the lawyer has a letter from Brian in her file documenting that she explained it thoroughly to him before he signed, and that she advised him not to agree to it.
- I guess Brian’s argument at trial was that the agreement does say that the alimony was terminable on Ruth’e’s remarriage, so if the relationship is tantamount to marriage, then that clause should be invoked. Once the judge determined that it was lump-sum alimony, however, that boat sank.
What, Me Jury?
June 12, 2017 § 1 Comment
We all know that the chancellor is required to impanel a jury when requested to do so in a will contest, and that the jury’s verdict in such a case is binding unless the court directs a verdict otherwise or grants a new trial. At one time the same was true in paternity suits, but that was changed.
Not long ago a lawyer jokingly told me that he was going to request a jury trial in a divorce case. That got us wondering whether the old “advisory jury” that predated the MRCP was still available in cases other than will contests.
Well, actually, it is. MCA § 11-5-3 says that “The chancery court, in a controversy pending before it, and necessary and proper to be tried by a jury, shall cause the issue to be thus tried and made up in writing.” In modern parlance, that translates into “the chancery court may impanel a jury in a case pending before it.” The cases have broadly interpreted that “necessary and proper to be tried to a jury” language to extend to a wrongful death action in chancery via pendant jurisdiction, an action for accounting by a bankruptcy trustee, partition, and “conflicting claims to realty.”
The catch is that the chancellor is not bound by the jury’s verdict, and the verdict is purely advisory. As Griffith explained, “Because … (1) of the delay, (2) of the additional public expense, and (3) because the verdict of a jury in chancery is purely advisory and the chancellor may disregard it, such a submission in an equity case is seldom allowed or desired.” Griffith, Mississippi Chancery Practice, 2d Ed., 1950, § 597. Griffith goes on to point out that, if the chancellor accepts the verdict and incorporates it into a decree, on review the decree is regarded by the appellate court as if it were the findings of the chancellor, just as if there had been no jury.
An interesting wrinkle is MCA § 11-5-5, which states that, if the request for a jury trial is granted and afterward there is a change of venue, then the receiving court is required to impanel a jury to try the case.
Now, I am not advocating for or encouraging anyone to make routine demands for jury trials in chancery, particularly since they are advisory only. I just thought that all the law nerds out there would enjoy this tidbit of really trivial trivia.
The Thai Monks DUI Defense
June 9, 2017 § 1 Comment
From the USA Today, June 5, 2017:
ROCHESTER, N.Y. — An embattled City Court judge was escorted Monday from judicial chambers in handcuffs.
Rochester court deputies and city police officers executed a bench warrant issued for Judge Leticia Astacio’s arrest last week after she missed a Tuesday court appearance related to an August drunken-driving conviction.
Astacio, a Rochester City Court judge, smiled and said hello to the gaggle of reporters waiting for her at the fifth floor elevator bank of the Monroe County Hall of Justice where officers marched her off to be processed at the nearby Rochester Public Safety Building. She returned later to the courthouse for an arraignment before Judge Stephen Aronson of Canandaigua City Court, who issued the warrant and is overseeing her drunken-driving case.
He ordered her held without bail in Monroe County Jail until a Thursday hearing. The reason she missed her court appearance last week was because she had been living in a temple with monks in the mountains of Thailand since May 3, she had texted to her lawyer.
“You’re doing everything to show you don’t care what happens to your public trust,” Aronson said.
In court Monday, Aronson offered Astacio a deal: Plead guilty to violating her initial drunk-driving sentence and receive 45 days in jail, two years of probation and six months on an ankle monitor. She declined and was ordered to jail.
“You’re doing everything to show you don’t care what happens to your public trust.”
On Feb. 13, 2016, Astacio was arrested around 8 a.m. ET on her way to City Court after New York state troopers were summoned to what appeared to be a one-car crash Interstate 490. She refused to take a Breathalyzer test
On Aug. 22, she was sentenced to a one-year conditional discharge that was extended to February 2018 after she admitted violating two conditions: abstaining from alcohol and not driving under the influence.
Astacio, a Democrat who was elected to a 10-year term in 2014, also was in court in March when she beat four allegations that she violated the conditions of her sentence. One alleged that she twice drank alcohol, and three others were related to the use and maintenance of her ignition interlock device, which prevents a vehicle from starting if a driver has had too much to drink.
In May, Astacio was summoned to court after her interlock device on April 29 registered a blood-alcohol-content reading of 0.0651%. A vehicle will start only if a person’s blood-alcohol content is below 0.03%.
Astacio, who worked as a prosecutor for a time in 2009 in the Driving While Intoxicated Bureau of the Monroe County District Attorney’s Office, denied consuming alcohol and contended that her daughter had registered the reading, said her lawyer, Ed Fiandach. It is not illegal for another person to drive a car outfitted with an interlock device meant for someone else.
After the reading, which Fiandach said occurred near the beginning of May, Aronson asked that Astacio take a urine test that detects ethyl glucuronide, a byproduct of alcohol, and submit the results to the court. She did not, so she was summoned to court Tuesday and did not appear because she was in Thailand.
Why Astacio had not been arrested when she returned to the United States over the weekend was not immediately clear. She had told Fiandach that she had bought a one-way ticket to Thailand and would be there until some time in August.
She returned to Rochester because her supervising judge, Justice Craig Doran of the New York State Supreme Court, had directed she attend a 9 a.m. Monday meeting in his office at the Monroe County Hall of Justice, expressing concern in a letter that her behavior constituted a “voluntary abandonment of public office” that would be deemed a breach of her judicial responsibilities if she failed to show up.
“You are self-sabotaging any chance you have to return to the bench,” Aronson said in court, telling Astacio that her attitude appeared to be contemptuous.
Though she still receives her paycheck, Astacio has been prohibited from presiding over cases since before her drunken driving conviction in August and has been barred from entering non-public areas of the courthouse since November. She has continued to receive her $173,700 salary because she remains an elected judge.
Astacio will again be working for her pay upon her release from jail — whenever that may be.
Her supervisors, state Supreme Court Judge Craig Doran and City Court Judge Teresa Johnson, told Astacio Monday that she will required to conduct research in the courthouse law library Monday through Friday, whenever court is in session.
__________________________
A few thoughts:
- Salary of $173,700 for a municipal judge. Wow. She’s definitely not in Mississippi.
- A one-way ticket to Thailand?
- Let me know if that “living in a temple with monks in the mountains of Thailand” defense works in any Mississippi court, will you?
Bill of Discovery is Viable, but …
June 6, 2017 § 1 Comment
In March, 2016, the COA all but pronounced the death of the Bill of Discovery, an ancient chancery proceeding that allowed a party to file an action solely to discover information when there is no other way to obtain it. I posted about the case at this link.
The MSSC granted cert, and in Kujlis v. Winn-Dixie Montgomery, LLC, decided March 30, 2017, the court stated that “The bill of discovery is a viable equitable action and remedy in chancery court …” (¶4).
BUT … the majority opinion held that Kujlis was not entitled to discovery in chancery because her complaint pled as the basis for discovery that she had suffered a personal injury, which is a circuit court matter. In essence, the court held that the discovery has to relate to some matter within chancery jurisdiction.
Justice Dickinson, joined by Kitchens, King, and Coleman dissented, pointing out that there was no circuit court action filed when Kujlis filed her Bill of Discovery, so there was no way to invoke circuit civil discovery under the MRCP. The dissenters noted that the Bill of discovery, which long predates the MRCP, only requires a showing that the information sought can not be obtained any other way, not that it is required for a given purpose. They also point out that the majority’s holding limits chancery jurisdiction contrary to MRCP 82(a).
You need to read the opinions for yourself to get a grasp on both sides’ reasoning.
I guess the moral here is that, if you file a Bill of Discovery in chancery court, simply plead and prove that the information sought cannot be obtained by other methods, and stand on that. As the court stated in ¶8, citing a previous case, ” … a complaint for discovery has discovery itself as the substantive relief sought — ‘the sole object and end of the bill, no relief other than discovery being prayed.”
That leaves unanswered the issue of relevance. The defendant comes into court and asks, “Why should I have to take the time and trouble to gather up all this information simply because they asked for it?” Good question. And per Kujlis, when the court makes you answer it, you just might create a dismissal.
Way back in 1950, Judge Griffith said, ” … the principle has been strengthened in its operation under our practice, for it is now the thoroughly settled rule in this state that discovery is a sufficient equity to draw all features of a controversy into chancery for full, final and complete relief … it has been held and repeatedly re-affirmed by our courts that the equity of discovery is sufficient to give the chancery court power to proceed to full relief although all other relief is purely legal in nature.” Griffith, Mississippi Chancery Practice, 2d Ed., 1950, § 429. We’ve travelled far from that concept.
Guns and the Courtroom
June 5, 2017 § 6 Comments
There is a significant case pending before the Mississippi Supreme Court that raises some important issues of public policy and safety, constitutionality, and separation of powers. You may wish to file an Amicus brief.
The case is Ward v. Colom, et al., no. 2016-M-01072. It is before the court on a petition seeking a writ of prohibition against the chancellors of the Fourteenth Chancery Court District. The chancellors had entered an order extending the courtrooms of their courthouses out to the entrances of the courthouses, with the effect that persons carrying firearms could not come within 200 feet of the courthouse entrances. The order applied to permitted persons as well as non-permitted persons.
Ward complains that he is an enhanced-carry permit-holder, and he was denied entry into one of the courthouses of the district with his firearm. He acknowledges that judges have the right by statute to restrict firearms from their courtrooms, but argues that the chancellors did not have the authority to extend the coverage of that authority in the way that they did. He asks the high court to void the order.
On April 26, 2017, the court, by Justice King, ordered briefing on the following issues:
1) What is the authority of judges to exercise control over security issues beyond the four walls of the courtroom itself?
2) Whether the judiciary has the inherent authority to exercise control of security extending beyond the four walls of a courtroom.
3) Whether Mississippi Code Section 97-3 7-7 (2) prohibits judges from controlling courthouse security. Specifically, what is the definition of “courtrooms during a judicial proceeding,” and does that definition either allow or prohibit judges from exercising control of security beyond the four walls of a specific courtroom while court is in session.
4) If Mississippi Code Section 97-37-7(2) does prohibit judges from exercising control over courthouse security, whether it violates the separation of powers doctrine.
The order specifically allows Amicus briefs within “fourteen days of the service of the responsive briefs.” That refers to the responsive briefs of the chancellors, which are due within thirty days of May 26, 2017. That means that Amicus briefs are due within 14 days of June 26.
I encourage chancery practitioners in particular to weigh in on this issue. For myself, I know that hard feelings can spill over to violence that is not limited to the courtroom. In a case here several years ago one of the parties and her attorney were fired upon as they left the courthouse after a nasty custody battle. They were outside on the steps to the south entrance. No one was hurt, thank goodness.
Whether to ban guns entirely as the chancellors did in the Fourteenth should be a judgment call by judges on the ground who are familiar with their courthouse situations, the types of cases that they handle, and the people who come before them. In our courthouses there is adequate, well-armed security. If they are ever called upon to draw their weapons to deal with a deadly situation, I would hope that they don’t have to stop to figure out which armed people are the “good guys.” That hesitation could be fatal.
“Quote Unquote”
June 2, 2017 § Leave a comment
“Honor is the presence of God in man.” — Pat Conroy, The Lords of Discipline
“And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” — Thomas Jefferson, Declaration of Independence
“”We laugh at honour and are shocked to find traitors in our midst.” — C. S. Lewis, The Abolition of Man
Priority of the Attorney’s Charging Lien
May 31, 2017 § 5 Comments
It is an ancient principle of the common law, and has long been recognized in Mississippi law, that attorneys have a lien on judgments and decrees obtained through the attorney’s successful representation. Where that lien falls in order of priority was the issue in a recent case.
Bar-Til, Inc. won a judgment for more than $205,000 against Superior Asphalt in chancery court. Instead of appealing, Superior interpled the money into the registry of the court while Bar-Til appealed the trial court’s denial of punitive damages. The chancellor granted the interpleader and entered a judgment declaring the judgment satisfied in full.
After the COA affirmed the denial of punitive damages, a scramble ensued among several creditors of Bar-Til, all of whom claimed a right to some of the funds. Some were judgment creditors. One was the McRae law Firm, which had successfully represented Bar-Til.
The interpled funds were insufficient to satisfy all of the claimants in full, so the chancellor apportioned the funds among them, including McRae, in a way that he deemed equitable.
Bar-Til appealed, arguing that McRae’s fees had priority, and that the chancellor erred by not recognizing the priority, and by not recognizing priorities or not of the other liens.
In Bar-Til, Inc. v. Superior Asphalt, et al., handed down May 9, 2017, the COA reversed and remanded. On the issue of priority of liens, Judge Greenlee wrote for the court:
¶10. Mississippi has long recognized an attorney’s right to have a lien on judgments and decrees procured through an attorney’s efforts on behalf of his client. An attorney has a “paramount lien on the money decree which he [has] obtained.” Collins v. Schneider, 187 Miss. 1, 192 So. 20, 23 (1939). “[A]n attorney’s lien on judgments and decrees obtained by [him] for fees on account of services rendered, belongs to the family of implied common law liens, and is firmly engrafted on the common law.” Id. A charging lien attaches when the attorney does “successfully pursue the [lawsuit] to conclusion and obtain a final judgment from which there [is] no appeal.” Tyson v. Moore, 613 So. 2d 817, 826 (Miss. 1992). At that point, “[the attorney’s] entitlement to a fee is vested.” In Collins, the Mississippi Supreme Court held that the attorney had a priority lien on funds held in the lower court’s register where “[t]he evidence conclusively show[ed] that nothing would have been recovered on the original cause of action . . . had it not been for [the attorney’s] labor, zeal[,] and skill in the investigation and vigorous prosecution of that suit to a successful conclusion.” Collins, 192 So. at 22.
¶11. In Indianola Tractor Co. v. Tankesley, 337 So. 2d 705, 706 (Miss. 1976), the Mississippi Supreme Court affirmed a trial court’s acknowledgment of a plaintiff’s attorney’s lien on the proceeds of a successful garnishment action. In ordering disbursement of the judgment, the law firm was listed first in priority. Id. The court cited to Chattanooga Sewer Pipe Works v. Dumler, 153 Miss. 276, 120 So. 2d 450, 453 (1929), in which the Supreme Court reiterated that “[i]t has been uniformly held by this [C]ourt that an attorney has a lien on the funds of his client for the services rendered in the proceeding by which the money was collected.”
¶12. Our appellate courts have noted since 1939 the absence in Mississippi of a “statute fixing or regulating the lien of an attorney, or the enforcement thereof.” Collins, 192 So. at 22. Consistent with common-law principles, multiple states statutorily mandate the priority of attorney’s fees, including Oregon, New York, California, Arkansas, Massachusetts, Alabama, and Georgia. For example, Alabama’s statute provides:
Upon actions and judgments for money, [attorneys] shall have a lien superior to all liens but tax liens, and no person shall be at liberty to satisfy the action or judgment, until the lien or claim of the attorney for his or her fees is fully satisfied; and attorneys-at-law shall have the same right and power over action or judgment to enforce their liens as their clients had or may have for the amount due thereon to them.
Ala. Code § 34-3-61(b). These statutes codify the equitable principle long recognized at common law that attorneys deserve payment for their successful services. The United States Court of Appeals for the Fifth Circuit, applying Mississippi law, held in American Fidelity that one of the rationales for not granting a law firm priority to retainage funds was that the law firm’s services had not been the cause of the release of the funds, therefore resulting in no injustice in not giving the law firm priority. We have the opposite situation at hand. Here, the services of the law firm—including seven years’ representation and over $16,000 in expenses—directly resulted in the judgment against Superior Asphalt.
¶13. Garnishees have the statutory right to compel interpleader. Miss. Code Ann. § 11-35-41 (Rev. 2004). This right protects the garnishee from double liability on the same judgment. The charging lien, protecting the attorney’s right to the fruits of his labor, and the right to interplead, protecting the garnishee from double liability, should not intersect with each other in such a way that frustrates one or the other right. If we were to adopt the approach that the contingency is not triggered in this circumstance, then practically—or rather, impractically—a plaintiff’s attorney working for a contingency fee would need to research standing garnishment claims in all eighty-two Mississippi counties prior to determining whether to accept a case. Any case that may result in an interpleader may be too risky to pursue. As the Mississippi Supreme Court explained in 1939, “it would be most inequitable and unjust for [the other claimants to the judgment] to be allowed to ‘ride free’ on the facts of this case.” Collins, 192 So. at 23.
¶14. We also note that the third-party creditors can continue to pursue collection of any remaining funds owed them pursuant to their respective judgments against Bar-Til. But as to the law firm, if the charging lien has not attached and does not have priority, the law firm will only receive for its successful services what—if anything—is left after all of the garnishors have taken the first bite at the interpled funds.
¶15. Here, the monies would not be available for distribution to the garnishors had not Bar-Til’s right to the judgment first vested. Superior Asphalt surrendered the money in satisfaction of the judgment against it, with no further right of appeal. We find that Superior Asphalt’s deposit of the funds into the registry of the court, consistent with its right to protect itself from double liability, did not prevent the law firm’s charging lien from attaching to the interpled funds. The law firm is first in priority.
¶16. As to priority between H&E Equipment and MMC Materials, MMC Materials properly concedes that H&E Equipment has priority. Even though MMC Materials’ judgment against Bar-Til was obtained first in 2008, priority here is governed by our garnishment statutes. Mississippi Code Annotated section 11-35-24(1) (Rev. 2004) provides in part that “[w]here more than one garnishment has been issued against an employee of a garnishee, such garnishee shall comply with the garnishment with which he was first served.” H&E Equipment was first to serve Superior Asphalt with a writ of garnishment related to any funds owed by Superior Asphalt to Bar-Til.
To make a longish story shortish: (a) the lien of an attorney who has been successful in obtaining the judgment that resulted in the interpled funds has first priority among creditors; and (b) garnishors stand in order of filing after the first priority.
Reprise: Man ist was er Isst
May 30, 2017 § 1 Comment
“Man ist was er isst.”
“You are what you eat.” — Feuerbach
Reprise replays posts from the past that you may find useful today.
Garbage in, Garbage out
April 29, 2015 § 3 Comments
Output often bears a marked resemblance to input.
One cannot expect to emulate the deep luster and luxe of mahogany with coarse plywood. Nor does ground round yield an acceptable chateaubriand. In either case, the product will look shabbily like the original material.
So why should we expect that the cultural garbage that we daily consume in the form of trash novels (for the few of us who still read), situation comedies, reality dance and bachelor shows, alarmist “news” programs, and television “dramas,” will produce from us any more refined output than the quality of what we have consumed?
What do these rubbish add to our store of wisdom, or our deeper understanding of human nature, or our grasp of how other cultures view the world, or how we can make things better?
This is not to suggest that one should not add a little cultural cotton candy, or broadcast Ben & Jerry’s, or reading Reese’s peanut butter cups to one’s life every now and then. No. What I am saying is that a steady diet of that stuff will transform you from a lithe, supple thinker into a bloated, lazy advocacy short-cutter.
Before I entered law school, a wise judge told me that the more exposure one is able get to the great ideas, to the history behind the way things are, to the principles that influence people in their daily lives, the better one can understand how to use the tools of the legal profession for the benefit of one’s clients. That process takes place over a lifetime, and it does not end when one graduates from law school.
We learn much of what we come to know from our experiences. You decide what you are learning by the experiences you choose.
Anderson made a similar point recently on his blog with reference to writing: the best way to learn the art of persuasive writing is to read persuasive writers. [Note: Anderson’s blog is regretably defunct since the original publication of this post in 2015].
The quality of what you produce depends on the quality of the raw materials used.
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