Prescription for an Easement
March 13, 2017 § 1 Comment
Mississippi is dotted with old churches that have fallen into disuse and even been abandoned as the congregation ages, moves away, and finds other associations. I posted about a typical example here only last month.
Some of the left-behind buildings are lovingly maintained by former members and family, but what keeps people involved with them in most cases is the church cemetery where ancestors and loved ones are interred.
Such was the case with Old Liberty Baptist Church, which had been established before 1854. In that year, Aaron Lott and his wife, Martha, deeded the 2 acres upon which the church had been built, and which included the adjacent cemetery, to the church’s “Committee of Arrangements.” The church later moved away, and the building was torn down, but the cemetery, which fronted on a public road, continued to be visited by people with an interest. Even so, there were only one or two burials there in the preceding 60-70 years. The cemetery was enclosed by a fence, with a gate that was accessible from the public road.
The Lott property, which surrounded the Old Liberty cemetery, descended to Johnnie Lott and his three daughters: Rita Deloach, Linda Douglas, and Cathy Grantham. After the daughters quitclaimed their interest to Johnnie, he later conveyed his interest to Cathy, reserving a life estate. “less and except 2 acres, more or less, comprising the cemetery.”
Johnnie Lott died in 2011, and in 2013, Cathy filed an instrument claiming that she controlled access to the cemetery. The Liberty Baptist Church formed an association to take responsibility for permanent maintenance, and the church deacons deeded its interest in the cemetery to trustees of the association for the purpose. The deed claimed a tract of 1.55 acres, as shown on an attached plat. Rita, sister of Cathy, participated in the process.
In the meantime, Cathy began locking the gate to the cemetery. After the lock had been cut off the gate seven times, Cathy’s husband removed the culvert and pushed dirt up blocking the gate.
Cathy filed suit, claiming that the cemetery property consisted of 1.25 acres, not the 1.55 acres claimed by the church. She claimed absolute authority and discretion in determining who, when, and how anyone should access the property. The association counterclaimed.
Following a trial, the chancellor granted the association title to the cemetery property by adverse possession, along with a prescriptive easement from the public road to the cemetery entrance. He also confirmed title in Cathy to certain other property in dispute. Cathy filed a R59 motion raising for the first time that she should be granted a prescriptive easement across the cemetery property, and a claim for slander of title. The chancellor overruled the motion, and Cathy appealed.
In Grantham v. Old Liberty Cemetery Association, decided February 21, 2017, the COA affirmed. On the issue of Cathy’s belated claim for a prescriptive easement, Judge Fair wrote for a unanimous court:
¶11. Grantham first argues she was entitled to a prescriptive easement across the Association’s property. “The evidentiary burden to establish a prescriptive easement is high.” King v. Gale, 166 So. 3d 589, 593 (¶20) (Miss. Ct. App. 2015). Grantham had to show by clear and convincing evidence she used the Cemetery tract to get to her property. Id. See Thornhill v. Caroline Hunt Tr. Estate, 594 So. 2d 1150, 1152 (Miss. 1992). Further, she had to prove her use was “(1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Id. (citations omitted). We note that she did not assert any claim for an “easement of necessity” because she has significant access to a public roadway, and makes claim for a “non-exclusive” prescriptive easement, even though exclusivity is a required element of a prescriptive easement.
¶12. The chancellor notes pointedly that Grantham denied any claim to the Cemetery land itself, only asserting the location of boundaries and easements to it and arguing that the Cemetery occupied 1.25 of the 1.55 acres the Association claimed. And there was no evidence presented that Johnnie, from whom she derived her title, ever claimed any ownership of the Cemetery. In her appellate brief, she restates that she “has decided not to appeal the determination . . . that the fence lying south [of] the access road is the cemetery’s south boundary, but does appeal the denial of her ‘non-exclusive easement’ over the road to access her property.” Grantham had stated her father always fenced his property, and that the northern boundary of the property she inherited is also the southern boundary of the Cemetery. She also testified that he had a concrete pad poured to feed his cows and admitted that the concrete pad stopped just south of the fence in the very southeast corner of the fenced-in area of the disputed property. Occasionally, Johnnie let the cows out through the Cemetery gate. Prior to her father’s death, Grantham returned to the property once or twice a month and had little knowledge of what was going on while she was away.
¶13. A “prescriptive easement,” as noted above, is an easement obtained by adverse possession over another’s land. Like any other adverse possession claim, an owner’s permission to use the easement defeats a party’s claim. See Kendall v. May, 199 So. 3d 697, 700 (¶8) (Miss. Ct. App. 2016). The general public (or at the very least the descendants of those buried in the Cemetery) had entered the Cemetery without interference and with implied permission of the church for more than a century – until Grantham locked it and removed the culvert. Anyone who had ancestors buried in the Cemetery had the right to enter onto “family cemetery” property and visit an ancestor’s grave as well as to be buried in the Cemetery. Grantham, a direct descendant of Aaron Lott, specifically has such a right, with the same permission as any other descendant of an ancestor buried in the Cemetery, to drive across roads crossing Cemetery property. She has presented no evidence of any open, notorious, or exclusive occupancy of any portion of the Cemetery property for more than ten years, as determined by the chancellor. Consequently, she is entitled to no greater or lesser interest in an easement over parts of the Cemetery than any descendent of anyone buried there.
I brought this to your attention for several points:
- In order to establish a prescriptive easement, it must be shown that the elements of adverse possession have been met as to the easement property. That in and of itself is a high bar. To make it even higher, the burden of proof is by clear and convincing evidence. This opinion is a good reminder of what must be shown.
- To me, the chancellor was exceedingly generous to entertain Cathy’s claim for a prescriptive easement, raised as it was for the first time on a R59 motion. You simply do not get to reopen the case to raise new legal issues and claims on a R59 motion that could and should have been litigated at trial, unless there is newly discovered evidence that was unavailable at trial. The COA does not elaborate on the basis for the R59 motion, so we are in the dark as to what motivated it, but if it was simply to assert a new issue, it was out of bounds.
- Likewise, at trial Cathy took the position that she asserted no interest in the cemetery property. She reversed that position in the R59 motion and asserted a claim for a prescriptive easement. That maneuver was barred by judicial estoppel, which holds that one may not take one position at one stage of the proceedings, and then take a contrary position at a later stage.
- Finally, Cathy asked for a “non-exclusive easement” to the cemetery. That was really unnecessary, as Judge Fair pointed out, because she was entitled to access the property along with everyone else with ancestors buried there.
The COA also affirmed the chancellor’s dismissal of both parties’ slander of title claims.
Betty Allen and the Gift of Toney: Their Role in the Modern Rights of Married Women
March 9, 2017 § 4 Comments
In 1830 the Mississippi Legislature abolished the tribal character of the Choctaws and Chickasaws and conferred upon them the rights of citizenship, subjecting them and their property to the operation of Mississippi law. One section of the law provided:
“That all marriages and matrimonial connections entered into by virtue of any custom or usage of the said Indians, and by them deemed valid, should be held as valid and obligatory as if the same had been solemnised [sic] according to the laws of the state.”
In 1830, Mississippi followed the common law principle of coverture, which provided that married women and their property were under the absolute control of their husbands.
Some time in the 1780’s, Elizabeth Love, also called Betty or Betsy, was born in the territory of the Chickasaw Nation in what was to become the State of Mississippi. Her parents, Thomas Love and Sally Colbert, were Chickasaws who owned slaves, and Betty came to own many slaves herself. Around 1797, Betty married James Allen, also known as John, in a Chickasaw ceremony. Allen was a North Carolina widower who had moved to Mississippi. Together they had eleven children, and they resided on Love property in Chickasaw territory.
In November, 1829, Betty Allen made a gift to her daughter Susan, a minor, of Toney, who was one of her slaves. The transaction was part of gifts she made to her children, and title was properly recorded according to the law at the time. Betty, I am sure, gave the transaction little thought, since Chickasaw custom and usage was that married women retained separate ownership of property in their own name.
John Allen became involved in a lawsuit and retained the services of a lawyer, John Fisher. When Allen failed to pay his fee, Fisher sued and obtained a default judgment against Allen for $200 in March, 1831, in the Circuit Court of Monroe County. Fisher executed on the judgment by having a writ issued for seizure of any property belonging to John Allen to sell at auction in satisfaction of the judgment. In response, the sheriff seized the slave Toney on the basis that Toney was John Allen’s property under coverture, and the conveyance by Betty to her daughter was ineffective.
George Allen, Susan’s brother, sued on her behalf for trial of right of property, and the case was decided in Susan’s favor by jury verdict. Fisher appealed to the High Court of Errors and Appeals of Mississippi.
In Fisher v. Allen, 2 Howard 611, 3 Miss. 611 (1837), the court held that, under the customs of the Chickasaws, a husband acquired no right to the property belonging to a woman at the time of the marriage. Under the acts of 1830 mentioned above, the state could not alter the conditions of persons whose marriages were validated by the acts, nor could it extend the rights of husbands. Property belonging to the wife under Chickasaw customs is not liable for the debts of the husband. The effect of the appeal was to affirm the trial court’s ruling.
The case had an impact on Mississippi law, and, indeed, on American law.
In 1839, Mississippi Senator T.B.J. Hadley was involved in a dispute with his creditors, and he introduced two bills in the legislature: one provided for married women’s rights with respect to their property; the other asked protection from his creditors. The two are apparently related. His wife, who moved to Mississippi from Louisiana, where the civil law did not recognize coverture, was not happy that a boarding house she owned could be jeopardized by Hadley’s debt problems. The bill relieving him of his debts passed easily, no doubt due to cronyism, but the property bill was voted down twice before it finally passed. Hadley argued persuasively that, if the Chickasaws and Choctaws were exempt, all Mississippi citizens should be also. He used the Fisher v. Allen case as his template. The legislature adopted his law, and upon its passage Mississippi became the first common law state to depart from the rule of coverture. The statute provided:
“[t]hat any married woman may become seized or possessed of any property, real or personal, by direct bequest, demise, gift, purchase, or distribution, in her own name, and as of her own property, provided the same does not come from her husband after coverture.”
Other states soon followed suit. England itself abrogated the common law rule with its own statute some years later.
In 1880, the Mississippi Legislature adopted a statute completely abolishing the disability of coverture (MCA 93-3-1).
When the 1890 Mississippi Constitution was adopted, its Article 4, Section 94 included a permanent prohibition against re-enactment of any coverture concepts. It provides:
The Legislature shall never create by law any distinction between the rights of men and women to acquire, own, enjoy, and dispose of property of all kinds, or their power to contract in reference thereto. Married women are hereby fully emancipated from all disability on account of coverture …
It was Betty Allen’s gift to Susan back in 1829, and Susan’s fight for her rights, that started the impetus to change.
There is an Historical Marker on Highway 278/6 in western Pontotoc County that is pictured below. Betty Allen’s grave had been adjacent to Highway 6, with a bronze marker, but had to be moved when the highway was widened.
Although the Fisher v. Allen case does involve property rights in a slave, an issue considered repugnant by today’s standards, the legal conflict reflects the prevailing law and culture of that time, and must be seen in that context. Regardless of how we view it today, Betty Allen’s legacy has benefitted generations of Mississippi women.
MPB has a series of historical sketches in honor of Mississippi’s bicentennial this year. One such piece, presented by Marshall Ramsey, tells Betty Allen’s story. It’s a story that touches on many themes of early Mississippi: the derecognition of the indigenous tribes; slavery and the incidents of slave ownership; legal disabilities of women; and — yes — Mississippi’s relative progressivism in the formative years of its law and jurisprudence.
Lump-Sum Alimony Without a Lump
March 7, 2017 § Leave a comment
In the divorce judgment between Herman and Lillie Scott, the chancellor equitably divided the marital estate, awarding Herman most of the unencumbered real property and one small debt, and awarding Lillie the encumbered real property and the bulk of the marital debt. There was a large disparity in income in favor of Lillie.
In his judgment the chancellor said:
“All of the Armstrong factors mentioned above which suggest the appropriateness of an award of alimony to Herman have been considered by the Court to entitle him to a modest award of lump sum alimony. The Court considers that the division of the marital estate outlined below incorporates an equitable division of the estate and an award of such lump sum alimony.”
The chancellor’s ruling, however, did not state an amount or otherwise describe of what the lump-sum award consisted.
Herman appealed, complaining that the chancellor erred in not awarding him periodic alimony. In Scott v. Scott, handed down December 13, 2016, the COA affirmed with an opinion by Judge Greenlee. It’s a routine opinion that you will not likely find very useful.
The special concurring opinion by Judge Lee, however, makes some good points about how a trial judge should address alimony:
¶17. I concur in result with the majority’s decision to affirm; however, I find that the chancellor’s decision to categorize a portion of the equitable division of the marital assets as lump-sum alimony was incorrect.
¶18. First, the chancellor did not provide for a specific amount of lump-sum alimony. Whether lump-sum alimony is “used either as alimony or as part of property division,” it must be a “fixed and irrevocable sum.” Beezley v. Beezley, 917 So. 2d 803, 806 (¶10) (Miss. Ct. App. 2005) (citing Wray v. Wray, 394 So. 2d 1341, 1345 (Miss. 1981)). The chancellor did not designate a specific amount of lump-sum alimony; rather, he divided the marital assets, giving Herman the majority of the unencumbered assets. The chancellor simply stated that “the division of the marital estate . . . incorporates an equitable division of the estate and an award of such lump sum alimony.”
¶19. Second, the nature of the award is, in reality, equitable distribution. This Court in East v. East, 775 So. 2d 741, 745 (¶9) (Miss. Ct. App. 2000), determined that the chancellor incorrectly labeled an equity transfer from the husband to the wife as lump-sum alimony, when, “in effect, it is a portion of the . . . equitable distribution of the estate.” We affirmed the transfer but corrected the labeling error. Id. Here, I would affirm the equitable distribution award but decline to accept the chancellor’s decision to label any amount thereof as lump-sum alimony.
Judge Lee’s opinion was joined by Judge Wilson and by Judge Fair, who is the sole former chancellor on the court.
Making the Cap Fit
March 6, 2017 § Leave a comment
Chancery courts can award punitive damages. It doesn’t happen every day, and it doesn’t happen often, but it does happen. When they do award punitive damages, chancery courts are as bound as other courts by MCA 11-1-65(1)(a), which imposes a cap of 2% of the defendant’s net worth for defendants with net worth of $50 million or less.
The case of Moore v. McDonald, handed down February 7, 2017, the appellants argued that the trial court erred in assessing punitive damages in excess of their claimed net worth. We’ve already posted about this case here, here, and here, because there’s a lot to talk about in it. It’s the property-line dispute in which the Moores had violated a previously affirmed judgment setting the parties’ boundary line. The Moores appealed, and Judge Wilson’s opinion will fill you in on the applicable facts:
¶8. The Moores do not dispute that their conduct was malicious such that an award of punitive damages was appropriate. Miss. Code Ann. § 11-1-65(1)(a). Their only objection is that the punitive award exceeds two percent of their net worth in violation of Mississippi Code Annotated section 11-1-65(3). See id. § 11-1-65(3)(a)(vi) (“[N]o award of punitive damages shall exceed . . . [t]wo percent (2%) of the defendant’s net worth for a defendant with a net worth of Fifty Million Dollars ($50,000,000.00) or less.”). On appeal, they argue that the chancellor was required to accept at face value their own representations of their net worth and cap punitive damages at $1,268. However, in the court below, the Moores failed to raise the issue of the statutory cap on punitive damages. The Moores also failed to introduce any reliable evidence of their net worth. Accordingly, they were not entitled to the benefit of the statutory cap on punitive damages.
¶9. On March 20, 2015, at the conclusion of the hearing on the McDonalds’ contempt petition, the chancellor found that an award of $10,000 in punitive damages would be appropriate. After that hearing, the Moores, who had been proceeding pro se, decided to hire a lawyer. At a hearing on May 8, 2015, the Moores’ recently retained counsel argued that the burden was on the McDonalds to prove the Moores’ net worth before the court could award any amount of punitive damages. Indeed, counsel asserted that “[t]he case law is clear” on this point. At the Moores’ request, the chancellor then continued the case to July 7, 2015, for a hearing on attorneys’ fees and the Moores’ net worth for purposes of assessing punitive damages.
¶10. At the July 7 hearing, counsel for the Moores acknowledged that his argument at the prior hearing was mistaken and that proof of net worth is not necessary to support an award of punitive damages. Counsel then argued that either side could offer such evidence, which the court should then consider in assessing punitive damages. However, in all of the proceedings in the chancery court, the Moores never—at any hearing or in any pleading—mentioned the statutory cap on punitive damages or argued that punitive damages must be capped at two percent of their net worth or any other number. “It is a long-established rule in this state that a question not raised in the trial court will not be considered on appeal.” Adams v. Bd. of Sup’rs of Union Cty., 177 Miss. 403, 170 So. 684, 685 (1936). “Moreover, it is not sufficient to simply mention or discuss an issue at a hearing. The rule is that a ‘trial judge cannot be put in error on a matter which was never presented to him for decision.’” City of Hattiesburg v. Precision Constr. LLC, 192 So. 3d 1089, 1093 (¶18) (Miss. Ct. App. 2016) (quoting Methodist Hosps. of Memphis v. Guardianship of Marsh, 518 So. 2d 1227, 1228 (Miss. 1988)). Accordingly, the Moores waived any argument that the chancellor should have applied the statutory cap.
¶11. Procedural bar notwithstanding, the Moores also failed to present evidence sufficient to require the chancellor to apply the cap. The only evidence that the Moores introduced of their net worth was a Uniform Chancery Court Rule 8.05 financial statement that they apparently signed on the morning of the hearing. The Moores’ 8.05 statement estimated the value of their home and land as $85,000 with a $22,000 mortgage balance; claimed household goods, furniture, and clothing worth $400; disclosed checking accounts with a combined balance of $325 or less; and listed two vehicles—one worth $5,600 or less with a $5,600 loan, and the other worth $1,500 with an $1,800 loan. The Moores gave a total value of their assets of $0, although the assets listed totaled $63,425.
The court went on to describe: Carolyn Moore’s evasive answers to questions about $17,000 cash on hand and her admission that their 8.05 was inaccurate; the evasive testimony of her husband about false and misleading bankruptcy filings; their failure to offer tax returns or a copy of a loan application they had submitted to a local blank shortly before trial; and the Moores’ smirking and mocking demeanor at trial. The COA concluded:
¶15. The chancellor did not err by reaffirming her $10,000 punitive award. “[P]roof of net worth is not required to award punitive damages. . . . [F]or a defendant to mitigate potential punitive damages, it is his responsibility to present proof of his net worth and financial condition.” Woodkrest Custom Homes Inc. v. Cooper, 108 So. 3d 460, 469 (¶¶41-42) (Miss. Ct. App. 2013) (citing C&C Trucking Co. v. Smith, 612 So. 2d 1092, 1102, 1105 (Miss. 1992)); accord Coleman & Coleman Enters., 106 So. 3d at 320 (¶33). Furthermore, the “evidence must be sufficient to enable the trial court to determine the defendant’s current net worth, according to generally accepted accounting principles.” In re Miss. Medicaid Pharm. Average Wholesale Price Litig. (“AWP Litig.”), 190 So. 3d 829, 846 (¶40) (Miss. 2015) (opinion of Chandler, J., joined by Kitchens and King, JJ., affirming). The Moores failed to meet their burden. They presented only one self-serving and admittedly inaccurate document of their own creation. Clearly, they did not present “evidence . . . sufficient to enable the [chancellor] to determine [their] current net worth, according to generally accepted accounting principles.” Id.
Not much more needs to be said. If you want to preserve a point for appeal, it must have been presented to the chancellor in trial or pre-trial in a form suitable for the judge to rule on it, or you have waived it. And the burden is on you to prove net worth so as to apply the punitive damages cap.
“Quote Unquote”
March 3, 2017 § Leave a comment
“It is better to be poor and walk in integrity than to be stupid and speak lies.” – Proverbs 19:1
“Never attribute to malice that which is adequately explained by stupidity.” – Robert J. Hanlon
“Stupidity is a more dangerous enemy of the good than malice. One may protest against evil; it can be exposed and, if need be, prevented by the use of force. Evil always carries within itself the germ of its own subversion in that it leaves in human beings a sense of unease. Against stupidity we are defenseless. Neither protests nor the use of force accomplish anything here; reason falls on deaf ears; facts that contradict one’s prejudgment simply need not be believed – in such moments the stupid person even becomes critical. And when facts are irrefutable they are just pushed aside as inconsequential, as incidental. In all this the stupid person, in contrast to the malicious one, is utterly self-satisfied and, being easily irritated, becomes dangerous by going on the attack. For that reason, greater caution is called for when dealing with a stupid person than with a malicious one. Never again will we try to persuade the stupid person with reasons, for it is senseless and dangerous.” – Dietrich Bonhoeffer
Attorney’s Fees in a Related Case
March 1, 2017 § 1 Comment
In the midst of their long-running property-line feud with the McDonalds, about which we have previously posted here and here, Kenneth and Carolyn Moore filed for bankruptcy, making it necessary for the McDonalds to file adversary proceedings in bankruptcy court. After the case returned to chancery from its bankruptcy detour, the case was heard on the merits and the chancellor ruled against the Moores, assessing them $13,336.55 in actual damages, $10,000 in punitive damages, expert expenses of $1,700, and attorney’s fees of more than $65,000. The attorney’s fee award included legal work by the McDonalds’ attorneys in the bankruptcy case.
The Moores appealed, contending that it was error for the chancellor to assess bankruptcy attorney’s fees against them in the chancery contempt proceeding. The COA affirmed in Moore v. McDonald, et al., handed down February 7, 2017. Judge Wilson wrote the opinion on the point:
¶4. On May 16, 2014, the McDonalds filed a motion for summary judgment supported by exhibits and affidavits. Eleven days later, the Moores filed for bankruptcy. As a result, all proceedings in the chancery court were stayed and the impending trial was cancelled. Counsel for the McDonalds entered an appearance in the bankruptcy case and filed an adversary complaint to preserve the McDonalds’ claim against the Moores. See 11 U.S.C. § 523(a)(6) (2012) (providing that a debt for “willful and malicious injury” to the person or property of another is not dischargeable in bankruptcy). The McDonalds’ counsel also attended the meeting of creditors and filed a motion for sanctions based on the Moores’ alleged misrepresentations in the bankruptcy case. In response to hearing notices in the McDonalds’ adversary proceeding, the Moores appeared before the bankruptcy court and asked that their bankruptcy petition be dismissed. The court granted their request, which permitted the chancery case to proceed.
¶5. The chancellor found “that the Moores intentionally stalled [the chancery] action by filing [a petition for] bankruptcy which was dismissed after considerable time and effort by [counsel for the McDonalds].” The chancellor therefore found that “attorney time and expenses expended . . . in the Moore bankruptcy case were properly incurred on behalf of the McDonalds and should be awarded as part of the fees and costs awarded in this case.” On appeal, the Moores do not challenge the chancellor’s factual basis for awarding attorneys’ fees incurred in connection with the bankruptcy case. The Moores’ only argument is that “[t]he Pearl River County Chancery Court was not the appropriate forum to request attorneys’ fees for work related to the bankruptcy.” They argue that approximately $3,975 in fees that the McDonalds incurred related to the bankruptcy proceeding could only be recovered in the bankruptcy court.
¶6. The Moores’ argument is without merit. The Moores do not dispute that the McDonalds were entitled to an award of attorneys’ fees, and they cite no authority for their argument that such fees are not recoverable simply because they were incurred in a related bankruptcy proceeding. Although not directly on point, our Supreme Court recently held that a state court can award fees incurred in federal court in connection with a motion to remand the case to state court. See O.D. v. Dillard, 177 So. 3d 175, 189 (¶44) (Miss. 2015). In addition, other courts have held that a state court may award attorneys’ fees incurred in connection with a related bankruptcy proceeding. See Chinese Yellow Pages Co. v. Chinese Overseas Mktg. Serv. Corp., 170 Cal. App. 4th 868, 882 (Cal. Ct. App. 2009); Gill Sav. Ass’n v. Chair King Inc., 797 S.W.2d 31, 32 (Tex. 1990). Accordingly, we hold that the chancellor did not err by awarding attorneys’ fees related to the bankruptcy case.
In the absence of other Mississippi authority on point, then, the law in Mississippi is as stated above until the MSSC rules otherwise. On the particular facts in this case, I can’t disagree. The judge ruled that the detour “intentionally stalled” the chancery proceeding, so its connection with and direct relation to the chancery case is pretty clear. Still, I would hope we can have some parameters on how closely connected and related that other litigation needs to be to justify awarding attorney’s fees in another case.
Waiving Discovery Problems
February 28, 2017 § Leave a comment
It happens from time to time, especially in cases that seem to have dragged around for ‘way too long, that the parties appear on the trial date assigned and one attorney launches into a tale of woe about how the other side never answered their interrogatories and requests for production, and now we need a continuance to get those answers or records, or whatever. My solution is below, but what in the world is one supposed to do when confronted by such a woeful situation?
That was the question before the chancellor In Bruenderman v. Bruenderman, a COA case decided January 10, 2017.
In that case, Anna Bruenderman was awarded custody of the parties’ minor child. Ty Bruenderman appealed, arguing that, if only he had been able to get Anna’s medical records into evidence, he would have prevailed, and it was error for the trial judge not to have ordered their production.
The COA affirmed. Judge Greenlee wrote for the court:
¶14. Ty asserts he should have been granted access to Anna’s psychiatric records because they are not privileged under Mississippi Rule of Evidence 503.
¶15. Rule 503 states that there is a privilege between patient and psychotherapist; however, Rule 503(d)(4) states that the privilege does not apply to communications—including records—regarding a party’s physical, mental, or emotional health or drug or alcohol condition when relevant to child custody, visitation, adoption, or termination of parental rights. The comments to the rule state that some factors the court should consider when evaluating such evidence under Rule 503 include whether: (1) the treatment was recent enough to be relevant; (2) substantive independent evidence of serious impairment exists; (3) sufficient evidence is unavailable elsewhere; (4) court-ordered evaluations are an inadequate substitute; and (5) given the severity of the alleged disorder, communications made in the course of treatment are likely to be relevant. M.R.E. 503 cmt.
¶16. Here, Ty subpoenaed Anna’s psychiatrist for a deposition one week prior to trial and did not request a continuance to allow him time to attempt to obtain those records. Though the chancery court ruled that Ty could pursue Anna’s records, he did not, nor did Ty ever move to compel the production of those records. It is well established that the burden is on the movant to request a continuance to pursue discovery matters, and failure to do so constitutes waiver. Ford Motor Co. v. Tennin, 960 So. 2d 379, 394-95 (¶54) (Miss. 2007); see also generally URCCC 4.04; M.R.C.P. 37.
[Note: the reference to URCCC is to the circuit and county court rules. The applicable Uniform Chancery Court Rule (UCCR) is 1.10]
¶17. The chancellor noted that there was no testimony of any major mental or physical problems of either party nor any evidence showing that discovery of any of Anna’s psychiatric records would be relevant to the chancery court’s custody analysis. The chancellor found that, based on what was before him, Anna’s counseling had more to do with the divorce than any underlying issue affecting her ability to properly care for her and Ty’s child. Thus, we find this issue is without merit.
So, the deal is that, yes, you can obtain the records under MRE 503, but unless someone voluntarily hands them to you, which is rare in this HIPAA era, you will have to bring the matter before the judge and show: the records’ recency and relevance; that there is substantive independent evidence of the condition; unavailability of this evidence through another source; court-ordered evaluations will not do the job; and communications between doctor and patient are likely to be relevant in the circumstances. AND you must do all that timely, or you have waived your right to complain about it.
In other words, as with all things discovery, you must timely file to compel, and timely follow up if necessary, or you will have waived the issue.
There are seldom last-minute motions to continue for discovery problems in my court because you can not get a date for trial on the merits unless and until you certify in blood that all discovery issues have been resolved, all discovery is completed, and the matter is ready for trial (Okay, I’m exaggerating about the blood part, but not by much).
The chancellor mus be fair, but that means fair to both sides. When you show up unprepared to try your case, expecting that the judge will congenially grant your request for a continuance, you are taking a big chance. If the motion is even in the slightest unfair to the other side, you will be overruled and told to tee it up.
The Cost of Making a Bad Impression
February 27, 2017 § 2 Comments
Kenneth and Carolyn Moore were engaged for years in a boundary dispute with Roy and Donna McDonald and Ruth Belton (collectively the McDonalds). In 2010, the COA unanimously affirmed a chancellor’s ruling establishing the boundary line between them in Moore v. McDonald, 47 So.3d 1186 (Miss. App. 2010). The trial court’s judgment enjoined the Moores from disturbing the other parties’ peaceful enjoyment of their property.
The Moores apparently did not take the court rulings well. In 2013, they:
- used a tractor and auger to install fence posts in the McDonalds’ driveway, rendering it impassable, and forcing them to install a new gate to access their land via a different route;
- tore down the McDonalds’ fence;
- uprooted or cut down numerous large crepe myrtle trees on the McDonalds’ property;
- littered the mcDonalds’ property with debris; and
- threatened, intimidated, and bullied Donna.
The McDonalds filed a contempt action. Following a hearing, the chancellor found the Moores in contempt and awarded compensatory damages, attorney’s fees and expenses, and punitive damages in the amount of $10,000.
The COA affirmed in Moore v. McDonald, et al., decided February 7, 2017. I posted about this case here previously.
What I found interesting was the way that the Moores behaved at trial, and the record of their other conduct, that most assuredly had an adverse impact on the judge’s view of them.
When the issue of their net worth was before the court, it became clear that the Moores had failed to disclose some $17,000 in cash on hand in their 8.05 financial statement. Mrs. Moore became evasive about it to the extent that even the judge became involved (at ¶12):
Q. Where is the money, Ms. Moore?
A. Well, I’ve got the money. Don’t worry about that.
THE COURT: Well, you do have to tell — I’m worried about that.
Where is the $17,000?
MS. MOORE: My daughter has got it if you want to know the
truth about it.
Q. Do you not have any control about how that money is spent?
A. Well, it’s not spent yet so —
Q. Okay. But you didn’t list that on your 8.05, did you?
A. No, I did not list it.
Q. So, in fact, it’s not correct that this financial declaration reflects
everything that you have got?
A. Well I guess not.
When questioned about a bankruptcy filing that had derailed the case for months and forced the McDonalds to incur more attorney’s fees, Mr. Moore either refused to answer or claimed he had forgotten about omissions and inaccurate valuations.
The chancellor recorded her observations of the Moores’ demeanor and credibility, and it does not paint a pretty picture (at ¶14):
“The Court has reviewed the financial statement of the Moores, . . . [a]nd finds that it is by their own admission inaccurate. $17,000 that was borrowed and placed with their daughter is not included on the financial statement, and that really puts the whole financial statement into question, in addition to the whole line of questioning . . . of Mr. Moore and his dishonesty with the Bankruptcy Court.
The Court has no idea what the value of their property is. I don’t believe that the value is what they say it is. I don’t believe them period. I wish the Appellate Court — because I’m confident that this will be appealed — could sit in this chair and see the snickering periodically of the Moores, both. I remember making a note of that in the initial trial, as well as I have just noted for myself smug looks or at one point, I saw them — Mr. and Ms. Moore – laughing between the two of them while the Court was going on.”
If you think that kind of bad behavior escapes the attention of the chancellor, or that it will have no real impact, you need to think again. It does, and it can have a disastrous impact, as it did in this case.
In a case in my court one of the key witnesses was the ex-husband of one of the parties. His bias against her was emphatic and unmistakable. While he took his oath to testify, he glared at her hatefully. He referred to her by using her several former married surnames (e.g., Mrs. Smith-Jones-Johnson-Davis, etc.) until I cautioned him not to continue doing so. His tone about her was sarcastic and included cutting remarks about her. Standing on its own, I found his testimony incredible, but also it was contradicted in material parts by the credible testimony of one of the woman’s children. The ex-husband’s demeanor played a large role in my decision to ignore his testimony entirely.
This is a major reason why you should spend some quality time with your parties and key witnesses in advance of trial. You need to impress on them that the chancellor is judge and jury. The chancellor has immense power over the case. Chancellors are like everyone else when it comes to assessing someone’s credibility. Sarcasm, evasiveness, argumentativeness, bias; all will undercut your witness’s credibility, possibly fatally.
Reprise: Less-than-Diligent Inquiry
February 24, 2017 § 1 Comment
Reprise replays posts from the past that you may find useful today.
DEVIOUS SEARCH AND INQUIRY
July 26, 2012 § 2 Comments
It avails one naught to get a judgment when all the proper parties have not been given notice and an opportunity to defend.
In 2007, Lottie Woods brought an action for adverse possession of family property. She claimed in her complaint that she was the sole and only heir of her uncle Cornelius, and she published process for him, his unknown heirs, and any other person claiming an interest in the property.
It should have been a clue of problems to come when Corenelius, Jr. showed up at the appointed time and produced a birth certificate showing he was Cornelius’s son. But it all seemed to work out because Lottie and Jr. settled the dispute between them, dividing the property.
The only problem with all of the foregoing is that Lottie neglected to make it known that she had four other siblings who could claim an interest in the property. In other words, as Jr.’s appearance foretold, she could hardly be said to be the “sole and only” heir. Her brother Samson and the other siblings filed an objection and separate litigation to correct the matter.
The COA case of Byrd v. Woods, et al., decided June 19, 2012, is where this particular drama was played out. The case goes off on several other points of law, but the one that I want to focus on here is what happens when a party does not comply with MRCP 4’s requirement that there be diligent search and inquiry before process by publication. Here is what Judge Fair had to say about it, commencing at ¶14:
Mississippi Rule of Civil Procedure 4(c)(4) states that if a defendant cannot be found after diligent search and inquiry, shown by sworn complaint or filed affidavit, he may be made a party by publication. In the 2007 adverse possession action, Lottie filed an affidavit of diligent search and inquiry to obtain a publication summons. However, she must have known that her brother (and her other siblings) would have an interest in the “family land” she sought to adversely possess. They were both potential heirs of Cornelius and believed the property belonged to their family. Further, Lottie and Samson were not estranged, so it is unlikely she could not find him after diligent search and inquiry. But Lottie did not serve Samson personally, nor did she mention or serve her other three siblings.
“The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (¶16) (Miss. Ct. App. 2002). In Caldwell v. Caldwell, 533 So. 2d 413 (Miss. 1988), the supreme court stated “if at any stage of the proceedings it appears that . . . the affidavit was not made in good faith after diligent inquiry, under the facts of the particular case, the process should be quashed by the court . . . .” Id. at 416.
Therefore, Lottie did not obtain service of process on Samson by publication because her affidavit was not made in good faith after diligent inquiry. Neither he nor Lottie’s other siblings are bound by the 2007 judgment.
The lesson here is that when your client avers that he or she has made “diligent inquiry,” or, using the traditional phrase still used by many lawyers, “diligent search and inquiry,” you had better make darned sure that there was indeed a search and inquiry, and that it was in fact diligent. It’s a subject we’ve talked about here before.
Expect the chancellor to inquire behind the affidavit before granting any relief. I always do, and I do not accept a shrug of the shoulders or a couple of half-hearted attempts. In one case before me the woman claimed that the last she knew of her husband he was hanging out at a bar in Wayne County. I asked whether she had gone there to inquire about him. When she said “no,” I ordered her to go to the bar and ask the bartender and some of the habitués whether they knew his whereabouts. Wonder of wonders, she found him and he was personally served.
In the case of Lottie Woods, based solely on what I read in the COA opinion, I would have found that her claim in a pleading intended to influence a judge that she was the sole and only heir when she had living siblings in the area and Cornelius’s son was still alive to have been a fraud on the court. As it was, her “oversight” has cost all of these parties more than five years of wasted time in litigation, and they are returning to the starting line, probably poorer for the trial and appeal attorney fees, and surely not thrilled with the legal process. If only Lottie had sworn truthfully …
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