Squatter’s Rights = No Rights
February 9, 2017 § Leave a comment
In February, 2009, Acey Huey deeded property he owned in a subdivision to his daughter, Fillisa.
On August 7, 2009, Acey signed off on a document entitled, “Repairing and Renting Agreement.” Acey and his brother Tom were named in the document as “Landlords,” and Tom’s daughter, Tommie, was denominated as “Tenant,” of the same property that had been conveyed to Fillisa. The agreement, which was prepared by Tommie’s godmother, provided in part: Tommie would pay rent of $150 per month and repair the property at her sole expense; the Landlords could not raise her rent or evict her without cause; if forced to leave for any reason she would be reimbursed for the labor and material she expended on the property, and for moving expenses and “pain and suffering.”
Filisa did not become aware of the agreement until 2012. In June of that year, she sent Tommie notice to pay rent or vacate, demanding $400 a month in rent, plus a $400 security deposit.
On July 25, 2012, Filisa conveyed the property to LeMorris Strong.
On July 27, 2012, the 2009 “Repairing and Renting Agreement” was filed in the county’s lis pendens records, attached to a “Notice of Subordination, Attornment and Non-Disturbance Agreement.”
On August 14, 2012 Strong recorded his deed from Filisa.
In November, 2012, Strong made written demand for Tommie to cancel the lis pendens notice, including a form to do so, as well as a copy of Mississippi’s Litigation Accountability Act (LAA), MCA 11-55-5.
In 2013, after Tommie had vacated the property, Strong filed suit to remove clouds from and quiet title to the property. Tommie counterclaimed. The chancellor granted Strong the relief he requested, and dismissed Tommie’s counterclaim. She also awarded Strong $3,917.14 in attorney’s fees and costs, ruling that the filing of the lis pendens notice and refusal to withdraw it constituted a violation of the LAA.
In Huey v. Strong, decided December 13, 2016, the COA affirmed with a unanimous opinion by Judge Fair, James not participating.
You can read the opinion for yourself. The point I want to make here is that you need to stop and think before you leap. I don’t know who filed that lis pendens notice for Tommie, but I hope it was the godmother who prepared the original agreement, and not an attorney. When you file a lis pendens notice you may be slandering title unless what you have filed is true, accurate, and has a basis in law. Tommie had a chance to withdraw it but did not, which ended up costing her nearly $4,000 she does not have, judging from the recitation of facts in this case. Here the COA holds that filing a false lis pendens notice can be a violation of the LAA. Damages were relatively small in this case, but they could have been huge.
Years ago, as a young lawyer (and before there was an LAA), a breathless client demanded that I file a mechanic’s lien notice against a subdivision developer only to learn soon after that the client had misrepresented the facts to me, and wanted it done as a vendetta because the developer had elected to begin using another contractor. I notified the client that I was withdrawing the lien and he could file one or anything else in his own right, but that I was not going to participate. My bad for leaping before looking and demanding some documentation or proof of the claim. Had that lien notice botched a sale, I might have been on the hook with my client for damages.
The Price of Breach of Trust
February 7, 2017 § Leave a comment
The law of trusts in Mississippi may be the least litigated area of our jurisprudence, judging from the paucity of reported cases on trust issues.
That’s why I was planning to do a post on the COA’s recent 30-page decision by Judge Barnes in Cassibry v. Cassibry, decided January 24, 2017. But Philip Thomas posted about the case on his excellent Mississippi Litigation Review and Commentary blog, so you can read his take at this link. At the trial level, the trustee was found to have violated the trust and was assessed a judgment in the amount of $144,865.86, plus post-judgment interest of eight percent per annum, and was ordered to pay $17,902 in costs and $28,500 in attorney’s fees. He was also ordered to transfer 7,757 shares of stock to the prevailing party. On appeal the COA affirmed but remanded for further proceedings on the issue of attorney’s fees, which the appellee conceded was not properly documented at trial.
One minor quibble with Mr. Thomas’s post: he refers to the trial court’s ruling as a “verdict,” but since it came from a chancellor and not a jury, it was a judgment. Not intended as a swipe at the knowledgeable Mr. Thomas. Just pointing this out for the young chancery lawyers and law students. Mr. Thomas will tell you that he spends most of his time in federal and circuit court, and not in chancery, so he can be forgiven the lapse into his more familiar verbiage.
Many trusts are extra-judicial, grant extremely broad discretion to the trustee, and waive accountings and other reporting. I guess that’s why relatively few are litigated. I had a case in my court years ago in which the beneficiary claimed a breach of trust because the trustee refused to disburse any money to him at all. The trust specifically gave the trustee unfettered discretion in that regard. The beneficiary also complained that the trustee had sold some of the assets of the trust; however, the trust gave him broad discretion in that area, also. The case fell to summary judgment and, to my knowledge was never appealed. It would have been interesting to litigate, since the were conflicting provisions as to which state’s laws controlled, and none of them were Mississippi.
An epic case in which the trustee was removed for non-monetary breach of duty to the beneficiaries is Wilbourn v. Wilbourn, decided April 24, 2012.
“Quote Unquote”
February 3, 2017 § Leave a comment
“Under current law, it is a crime for a private citizen to lie to a government official, but not for a government official to lie to the people.” — Donald M. Fraser
“We have enjoyed so much freedom for so long that perhaps we are in danger of forgetting that the Bill of Rights, which cost so much blood to establish, is still worth fighting for.” — Oliver Wendell Holmes, Jr.
“I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.” — James Madison
Bills that Could Affect Your Chancery Practice
February 2, 2017 § Leave a comment
As I understand it, these are the pending bills that have made it out of committee. I tried to copy so as to preserve the hyperlinks to the bills, but was unsuccessful. You can find the text of the bills at this link. Also, some of the matters listed below apply to Youth Court, but I included them nonetheless because they may create some overlap with chancery, particularly in custody cases.
HB 476 Child abuse; require DHS to notify applicable military installation family advocacy program in certain cases.
01/25 (H) Title Suff Do Pass Comm Sub
Dixon
HB 481 Medical expenses; define admissibility during trial.
01/26 (H) Title Suff Do Pass
Gipson
HB 483 Multidisciplinary teams and child advocacy centers; provide information prepared by shall be confidential under certain circumstances.
01/31 (H) Title Suff Do Pass
Gipson
HB 489 % Mental health courts; authorize and provide for certification of.
01/26 (H) Title Suff Do Pass Comm Sub
Currie
HB 551 Pro se legal forms; provide that court-approved forms may be provided by public librarians and law librarians.
01/25 (H) Title Suff Do Pass Comm Sub
Reynolds
HB 605 Dept. of Child Protection Services; transfer of DHS functions to shall be completed by Jan. 1, 2018.
01/24 (H) Title Suff Do Pass
Dixon
HB 805 Supreme Court; authorize to have original jurisdiction for claims seeking injunctive relief against the state.
01/24 (H) Title Suff Do Pass
Baker
HB 806 Nonprobate Transfers Law of Mississippi; create.
01/31 (H) Title Suff Do Pass
Baker
HB 807 Jointly held property; authorize to be sold by broker in a commercially reasonable manner.
01/31 (H) Title Suff Do Pass
Reynolds
HB 843 Landlord-tenant law; revise certain provisions related to the nonpayment of rent.
01/24 (H) Title Suff Do Pass Comm Sub
Johnson (87th)
HB 849 Fiduciary Access to Digital Assets and Digital Accounts Act; create.
01/24 (H) Title Suff Do Pass
Lamar
HB 853 Power of Attorney; revise to authorize parents to delegate for care and custody of a child.
01/31 (H) Title Suff Do Pass Comm Sub
Eubanks
HB1013 Department of Child Protection Services; make technical amendments to provisions of law relating to and give certain powers and duties to.
01/26 (H) Title Suff Do Pass Comm Sub
Dixon
HB1210 Youth Court; require to provide redacted copy of child’s record to child’s parent/guardian upon request of the parent/guardian.
01/30 (H) Title Suff Do Pass
Bennett
HB1211 Youth court prosecutor; require district attorney to appoint and require residency in county where youth court is located.
01/30 (H) Title Suff Do Pass
Bennett
HB1212 % Child Protection Services; authorize to have background check of home residents during emergency placement situation.
01/31 (H) Title Suff Do Pass Comm Sub
Gipson
HB1213 Youth court; authorize to utilize volunteer Court-Appointed Special Advocate (CASA) in abuse and neglect cases.
01/31 (H) Title Suff Do Pass
Bell (65th)
HB1366 Domestic abuse protection orders; revise appellate procedure.
01/31 (H) Title Suff Do Pass
Bain
HB1406 Marketable Record Title Act; enact.
01/31 (H) Title Suff Do Pass Comm Sub
Touchstone
SB2063 Appropriation FY2018; pilot programs for legal representation for indigent parents in child abuse cases.
01/05 (S) Referred To Appropriations
Dearing
SB2161 % Constables; revise fees charged by.
01/30 (S) Title Suff Do Pass Comm Sub
Burton
SB2302 % “Ban the box;” facilitate post-incarceration employment opportunities for nonviolent felons.
01/31 (S) Title Suff Do Pass Comm Sub
Barnett
SB2327 Conversion and Domestication; revise.
01/24 (S) Title Suff Do Pass
Tindell
SB2342 Termination of parental rights; technical corrections.
01/24 (S) Title Suff Do Pass Comm Sub
Tindell
SB2350 Business Corporation Act; technical revisions.
01/24 (S) Title Suff Do Pass
Tindell
SB2369 Youth court prosecutor; must be resident of the county and appointed by the DA.
01/26 (S) Title Suff Do Pass Comm Sub
Tindell
SB2388 Domestic abuse protection orders; revise appellate procedure.
01/24 (S) Title Suff Do Pass Comm Sub
Wiggins
SB2427 Code of Judicial Conduct; immunity for members of a special campaign committee.
01/27 (S) Title Suff Do Pass
Hopson
SB2483 Divorce; bona fide separation as a ground for.
01/24 (S) Title Suff Do Pass Comm Sub
Tindell
SB2520 Youth court records; parents have right to redacted copies.
01/24 (S) Title Suff Do Pass
Hill
SB2628 Court reporter; may be hired to record court proceeding.
01/31 (S) Title Suff Do Pass
Branning *
SB2644 Mental illness; revise acquittal and commitment for.
01/26 (S) Title Suff Do Pass Comm Sub
Hopson
SB2673 Guardian ad litem fees; failure to pay enforced as any other civil debt.
01/26 (S) Title Suff Do Pass Comm Sub
Tindell
SB2680 Abused and neglected children; clarify alternative of relative care.
01/31 (S) Title Suff Do Pass Comm Sub
Hill
SB2703 Divorce; domestic violence as a ground for.
01/24 (S) Title Suff Do Pass Comm Sub
Doty
SB2821 Youth court referees; appointed to a 4-year term.
01/31 (S) Title Suff Do Pass Comm Sub
Tindell
SB2842 % Mental health court intervention programs; authorize.
01/31 (S) Title Suff Do Pass Comm Sub
Branning
Reprise: The Artful Withdrawal
January 31, 2017 § Leave a comment
Reprise replays posts from the past that you might find useful today.
ANOTHER WRINKLE IN WITHDRAWING FROM REPRESENTATION
November 21, 2011 § Leave a comment
We’ve talked here before about the proper procedure to withdraw from representing a client.
It often happens that the judge signs an order letting the attorney out, and in the same order sets the case for trial. That can cause problems for the remaining attorney and client, as was the case in Turner v. Turner, decided by the COA on November 1, 2011.
The Turner litigation spanned 4 years of conflict between Jane and Michael over a divorce and custody. There were trial dates set and continued, and intervening pleadings, culminating in a trial date on November 12, 2009.
On the last date set for trial, Michael appeared and saw his attorney talking first with counsel opposite and then the chancellor. He learned that his attorney had made a motion ore tenus to withdraw, even though UCCR 1.08 requires a written motion and notice. There also was not five days’ notice to opposing counsel or Michael, as required in MRCP 6. The judge signed an order on November 12, entered the next day, allowing Michael’s attorney to withdraw over counsel opposite’s objection and continuing the divorce trial to December 8. That order is the only record of what transpired that day. According to Michael, his attorney took him to a conference room where his attorney told him of the withdrawal and offered assistance in finding new cocunsel; however, Michael said that the attorney did not advise him of the reset trial date, and the attorney later testified that he had no recollection whether he had advised Michael of the trial date.
On December 8, 2009, court convened for the divorce and Michael was not present. The record showed that he had never missed any prior scheduled proceedings. The chancellor granted Jane a divorce on the ground of habitual drunkenness, and awarded her custody, marital property and attorney’s fees.
Michael timely filed a motion under MRCP 59 and 60 to set the divorce aside for lack of proper notice of the trial setting. The chancellor refused, citing MRCP 5. Michael appealed.
The majority COA opinion rejected the rationale that MRCP 5, which essentially provides that notice to an attorney is imputed to the client, was applicable here. Citing Fairchild v. GMAC, 254 Miss. 261, 265, 179 So.2d 185, 187 (1965), the opinion held that an attorney who has moved to withdraw cannot at the same time continue to exercise authority on behalf of the client with respect to other matters. “While ‘withdrawal is prospective [and] does not erase those steps in the proceeding already taken,’ withdrawal likewise prevents an attorney from taking future steps on behald of his client.” Id. The Turner opinion stated at ¶21 that “We find [Michael’s attorney] could not simultaneously withdraw as Michael’s representative and be ‘counsel for the defendant’ for purposes of notice of the December 8 hearing.”
The COA admonished trial judges to follow UCCR 1.08 and MRCP 6 in entertaining motions to withdraw, and found that due process was lacking in this case. At ¶25, the court prescribed the solution for future cases:
” … [I]n cases where permission to withdraw is granted outside of the presence of the requesting attorney’s client, to avoid future notice problems, it is certainly permissible for a chancellor to enter a written order scheduling a future hearing, which expressly conditions the requesting attorney’s withdrawal only upon submission of proof to the court that he or she has given notice of the subsequent hearing to the client. Another suitable method, under this circumstance, would be to allow withdrawal of counsel subject to the condition that subsequent papers may continue to be served upon counsel for forwarding purposes as the judge may direct, unless and until the client appears by other counsel or pro se.”
In my opinion, the problem in this case could have been avoided if the defendant had been required to sign off on the order that let his attorney out of the case and set the trial date. He would have been hard-pressed to argue later that he did not have notice of the trial date. That’s the practice we try to follow in this district. Of course, we also try to follow UCCR 1.08 and MRCP 6 in these situations, but sometimes things come up at the last minute, and, in those cases we try to document as best we can.
The majority opinion in Turner provoked staunch dissents from Judges Russell and Griffis. Russell attacked the chancellor’s grant of a divorce, denial of visitation and other relief. Griffis took issue with the majority’s due process rationale.
Denial of Divorce: What is the Standard of Review?
January 30, 2017 § Leave a comment
The recent COA decision in Gwathney v. Gwathney, decided January 10, 2017, is notable for the fact that it was an appeal from a chancellor’s decision denying the appellant a divorce. She had proceeded on the ground of habitual cruel and inhuman treatment (HCIT). You can read the decision for yourself. It’s instructive on the subject of what it takes to support a finding of HCIT.
The COA, by Judge Ishee, deferred to the chancellor’s findings of fact:
¶9. “[A]s the trier of fact, [the chancellor] evaluates the sufficiency of the evidence based on the credibility of the witnesses and the weight of their testimony.” Holladay [v. Holladay], 776 So. 2d [662] at 676 (¶62) [(Miss. 2000)]. We do not find that the chancellor was manifestly wrong or that he applied an erroneous legal standard. This opinion should not be construed as though a chancellor could never find cruel and inhuman treatment under the same or similar circumstances. Instead, we simply hold that it was within the chancellor’s discretion to consider the particular nuances of this case, weigh the evidence, and determine that the proof fell short of habitual cruel and inhuman treatment. To hold otherwise, we would have to improperly substitute our view for the chancellor’s. Because that would be beyond the scope of the standard of review, [Fn omitted] we affirm the chancellor’s judgment.
Fair enough. But it appears that there was some discussion among the judges as to whether the COA could act as “Super Chancellors” in a denial of divorce case, substituting its collective judgment for that of the trial judge who observed the demeanor and credibility of the witnesses. I say that because one judge, Wilson, “concurs in part and in the result without separate written opinion,” and because of the inclusion of a lengthy footnote at the end of the opinion that may have been intended to address Judge Wilson’s concerns. Here is the footnote (omitted above) in its entirety:
In Kumar v. Kumar, 976 So. 2d 957, 960 (¶13) (Miss. Ct. App. 2008), this Court stated that “[t]he chancellor’s determination of whether a spouse’s conduct rose to the level of cruel and inhuman treatment is a determination of law” that we review de novo. In so doing, we relied on Potts v. Potts, 700 So. 2d 321, 322 (¶10) (Miss. 1997), and Reed v. Reed, 839 So. 2d 565, 569 (¶13) (Miss. Ct. App. 2003). In Potts, the Mississippi Supreme Court cited Bland v. Bland, 629 So. 2d 582, 586 (Miss. 1993), and held that a chancellor’s findings regarding whether a spouse’s “conduct rose to the level of habitual cruel and inhuman treatment . . . is a determination of law, and is reversible where the chancellor has
employed an erroneous legal standard.” Potts, 700 So. 2d at 322 (¶10) (emphasis added). However, nothing in Bland appears to support the concept that a chancellor’s factual determination is a question of law. Instead, the Supreme Court stated that “[e]specially in the divorce arena, the chancellor’s findings will not be reversed unless manifestly wrong.” Bland, 629 So. 2d at 587. And no portion of Bland addressed a chancellor’s conclusion regarding whether conduct qualified as cruel and inhuman treatment. Fully cognizant of our place in the hierarchy of Mississippi courts, we do not comment on the subject out of any form of criticism, but to note our awareness of the precedent, and to explain our reliance on the more unequivocal command that an appellate court is “required to respect the findings of fact made by a chancellor” where they are “supported by credible evidence and not manifestly wrong [–] . . . particularly . . . in areas of divorce.” See Mizell v. Mizell, 708 So. 2d 55, 59 (¶13) (Miss. 1998) (quoting Newsom v. Newsom, 557 So. 2d 511, 514 (Miss. 1990)).
I will leave that there for you to ponder for the next time you have that issue on appeal.
One thing to add: HCIT is arguably the most difficult ground to prove despite the fact that most people think it is easy because of its preponderance-of-the-evidence burden, and they see it as a “catch-all,” one-size-fits-all ground to use when nothing else quite fits. Nothing could be more inaccurate. As you can read in Gwathney, it takes a particular specie of proof to support a finding of HCIT. And the days are long gone when a chancellor could grant an HCIT divorce because “It’s obvious that these parties need a divorce.”
When You Are An Imminent Peril to Your Client
January 25, 2017 § 1 Comment
Earlier this week I saw a piece on a news show about the increasingly rampant practice of thieves stealing tax refunds by filing false tax returns.
In one case, a woman learned that the outlaws had filed a tax return in her name claiming thousands of dollars in fake deductions that resulted in a refund — to them and not her — of $26,000. The refund was directed to a blank (prepaid) credit card where it can not be traced. Of course, the victim had to go through much travail to undo all the damage.
In another case, a man’s tax return with all of his dependency exemptions was hijacked for $5,000.
A tax expert came on screen and said that all a thief requires is the taxpayer’s Social Security Number (SSN), and the number of each co-filer and dependent.
Okay. Let that sink in. All that is required is the SSN’s.
Think about how many documents you have in your possession that are full of your clients’ SSN’s. Every tax return has the taxpayer’s SSN on every single page — sometimes in multiple places. Loan applications have them. Social Security earnings reports and other communications have them.
When you file an 8.05 financial statement and do not redact those SSN’s, you are sending your client’s personal information unprotected out into the world. When you produce unredacted records in discovery, you are violating your clients’ confidences. When you introduce information into evidence that includes SSN’s, you are exposing your clients to fraud.
This is something I have discussed here before. It’s serious, and it has serious implications for you. It won’t be long before PI lawyers discover a fertile new field for liability: lawyers who violate their clients’ financial confidentiality and integrity by not observing either the MEC confidentiality rules or the simple, common-sense precaution of redaction.
It seems like every week I have to caution a lawyer to redact confidential information from documents being introduced into evidence. In one case, we had to take an hour-long recess to allow 10 years of tax returns to be redacted. That should have been done long before the trial date.
The MEC rules make it clear that, if confidential information is filed, it is considered that the client has waived confidentiality. So when you file unredacted information, you have waived confidentiality for your client. Did you have authority to do that? Haven’t you committed an ethical violation when you did it without your client’s express permission?
The Better Chancery Practice Blog 