Breaching Confidentiality
November 22, 2016 § 1 Comment
Suppose your client gave you her income tax return in confidence. You then make 20 unredacted copies and drive down the street throwing them at passers-by. Have you violated your client’s confidentiality?
Or suppose that your client gave you those same tax returns with the understanding that they would be disclosed in discovery in the course of her divorce. You send them unredacted to opposing counsel in answer to a request for production. Counsel opposite makes a copy for his client, who throws it in the back of his pickup. Later, it blows out as he zooms down the interstate, scattering your client’s name and SSN to the four winds. Have you violated your client’s confidentiality?
Or you simply file those tax returns unredacted on MEC. Have you violated your client’s confidentiality?
I think the undebatable answer in each scenerio is a resounding YES. It is you who chose to send the documents out into the cold, cruel, identity-stealing world unredacted, contrary to MEC Section 9. Remember, MEC says that if you file unredacted documents you have waived confidentiality; did your client authorize you to do that? Did your client even know you were going to do that?
I know, MEC applies only to electronic filings. True. But the principle should be the same in everything you do with your client’s sensitive documents and things, whether in paper discovery, exhibits in court, correspondence, and on and on. Your clients want and expect you to protect their confidentiality.
We get all manner of things attached to motions in this court. Our standard practice is to turn the paperwork over to the staff attorney who then uses the unprinted-on backsides to print internal memos, cases, etc. A few days ago, I finished a memo and noticed that it was printed on the back of a copy of a federal tax return. The names and SSN’s of the taxpayers were unredacted. Those were immediately shredded. Had I not caught that those folks’ names and SSN’s would simply have gone into the trash, and thence to a landfill, perhaps to be picked up by a breeze and deposited into the clutches of a n’er-do-well. Whoever filed that return unredacted is responsible for its consequences.
You Still Can’t Get More Time
November 21, 2016 § Leave a comment
Only last week I posted about situations under the MRCP in which the trial court can not extend deadlines. You can read the post at this link. Among those actions are motions for rehearing under R59(b), (d), and (e).
A savvy lawyer called my attention to the case of Wright v. White, 693 So.2d 898 (Miss. 1997), which includes the following language at p. 903:
The time limit for serving a Rule 59 motion for reconsideration is 10 days after judgment, and that period may not be enlarged except by a request being made within the time period provided and such request being granted by the court. MRCP 59(e); MRCP 6(b). [Emphasis mine]
I would not rely on that language to support a request for an order granting more time for these reasons:
One, R6(b) specifically states that the trial court may extend deadlines in many instances, but ” … it may not extend the time for taking any action under Rules 50(b), 52(b), 59(b), 59(d), 59(e), 60(b), and 60(c), except to the extent and under the conditions therein stated” and
Two, the only action specified in R59 for which a deadline may be extended is the filing of opposing affidavits if the motion is supported by affidavits, as provided in R59(c) and
Three, the rule was amended in 1997 (2 months after this decision) to clarify that the R59 motion must be filed, not served, within ten days of entry of the judgment.
And, just to quibble, it’s a motion for rehearing, not for reconsideration, as we have discussed before. There is no motion for reconsideration under the MRCP.
So, can you get an order extending the time to file a R59 motion and then successfully defend it on appeal? (Remember that a timely R59 motion tolls the running of the time within which to file an appeal). In Wilburn v. Wilburn, 991 So.2d 1185, 1190-191 (Miss. 2008), the MSSC rejected the appellee’s argument that the appeal was untimely due to the untimely filing of a R59 motion. The appellee had not objected to the untimeliness at the trial level. That’s something you might want to keep in mind.
In my opinion, the very best practice is to file your R59 motion no later than 10 days after entry of the judgment, as the rule states. You are playing with fire if you procrastinate and rely on the court to enter an order for more time that in all likelihood will not be worth the paper it is printed on.
Thanks to Attorney Ben Rowley
When You Can’t Get More Time
November 15, 2016 § 1 Comment
MRCP 6(b) gives trial judges pretty much leeway to allow lawyers an enlargement of time to do all manner of things.
That authority does not exist in some situations, though.
As the Advisory Committee Note to R6 points out, there are times when the court can’t enlarge time at all:
Rule 6(b) gives the court wide discretion to enlarge the various time periods both
before and after the actual termination of the allotted time, certain enumerated cases being excepted. A court cannot extend the time: (1) for filing of a motion for judgment
notwithstanding the verdict pursuant to Rule 50(b); (ii) for filing a motion to amend the court’s findings pursuant to Rule 52(b); (iii) for filing a motion for new trial pursuant to Rule 59(b); (iv) for filing a motion to alter or amend the judgment pursuant to Rule 60(b); (vi) for filing a motion to reconsider a court order transferring a case to another court pursuant to Rule 60(c); or (vii) for entering a sua sponte order requiring a new trial pursuant to Rule 59(d).
Notice that all of those matters can directly affect appeal time. You’ve got to get them timely filed, or they’re waived. The court can’t play out more rope for you.
Adverse Possession Nuggets
November 14, 2016 § Leave a comment
If you’ve been a long-time reader, you will recognize that I tend to really like cases that elucidate what must be shown to make an adverse possession case. That’s because, for all the colorful language of the case law about “planting flags” and “unfurling banners,” it can be confoundedly difficult to translate that into what people do in real life.
The recent COA decision in Powell v. Meyer, handed down October 25, 2016, is one of those helpful cases. The facts are pretty typical of an adverse possession case. You can read them for yourself. I’ve extracted some nuggets for you that you might find useful next time you have a case like this.
- ¶18. Mississippi Code Annotated section 15-1-13(1) (Rev. 2012) defines adverse
possession as follows:Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full complete title . . . .
We apply a six-part test for determining whether adverse possession has occurred: “for possession to be adverse it must be (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.” Walker [v. Murphree], 722 So. 2d [1277] at 1281 (¶16). The burden was on Meyer to prove each element by clear and convincing evidence. Ellison v. Meek, 820 So. 2d 730, 734 (¶13) (Miss. Ct. App. 2002).
- ¶19. … In regard to the actual or hostile element, “[t]he actual or hostile occupation of land necessary to constitute adverse possession requires a corporeal occupation, accompanied by a manifest intention to hold and continue to hold the property against the claim of all other persons, and adverse to the rights of the true owner.” Hill v. Johnson, 27 So. 3d 426, 431 (¶23) (Miss. Ct. App. 2009). Possession is hostile when the adverse possessor intends to claim title notwithstanding that the claim is made under a mistaken belief that the land is within the calls of the possessor’s deed. Alexander v. Hyland, 214 Miss. 348, 357, 58 So. 2d 826, 829 (1952). … “[T]he mere existence of a fence,” without more, “does not establish that the fence is the
accepted boundary between the properties.” Ellison, 820 So. 2d at 735 (¶16). … - ¶20. In regard to the open, notorious, and visible element, “[t]he mere possession of land is not sufficient to satisfy the requirement that the adverse possessor’s use be open, notorious, and visible.” Webb v. Drewrey, 4 So. 3d 1078, 1083 (¶19) (Miss. Ct. App. 2009) (citation omitted). An adverse-possession claim will not begin “unless the landowner has actual or constructive knowledge that there is an adverse claim against his property.” Id. …
- ¶21. … To reiterate, even if a party is mistaken as to the calls of his deed, “if he has occupied the land for the statutory period under the claim that it was his own and was embraced within the calls of his deed, he is entitled to recover on the ground of adverse possession[.]” Alexander [v. Hyland], 214 Miss. [348] at 357, 58 So. 2d [826] at 829 [(19520]. …
You might want to file those away for future use.
Here the chancellor was affirmed because there was clear and convincing evidence to support each and every one of the six required elements. That’s good lawyering. Not only do you have to have the facts to work with; you also have to make sure that you make a good enough record with sufficient facts to support the judge’s findings.
How the Judicial Races Turned Out
November 9, 2016 § 6 Comments
Here are the contested appellate races:
Supreme Court, , District One, Position 2: Kitchens, 54%; Griffis, 46%.
Supreme Court, District Two, Position Two: Beam, 67%; Shareef, 33%.
Supreme Court, District Three, Position 1: Chamberlin, 31%; Brady, 29%; Kitchens, 25%; Crumpton, 15%.
Court of Appeals, District 2, Position 2: Westbrooks, 57%; James, 43%.
Court of Appeals, District 3, Position 1: Wilson, 50%; Hannan, 37%; Yoder, 13%.
It would appear from these figures, all of which are from AP, that there will be runoffs in MSSC Dist. Three and COA Dist. 3 (the inconsistency in nomenclature is the AP’s).
I have no results from any contested trial court elections around the state. Please feel free to add a comment about any local races if you have some authoritative info.
Go Vote …
November 8, 2016 § Leave a comment
… It’s the least you can do for all the brave folks who gave their lives to preserve that privilege for you.
An Acknowledgment is not an Oath, and Vice Versa
November 7, 2016 § 2 Comments
This is an acknowledgment:
Personally appeared before me, the undersigned authority in and for the said county and state, on this the 4th day of October, 2016, within my jurisdiction, the within-named Joe Doe, who acknowledged that he executed the above and foregoing instrument. (MCA 89-3-7)
This is an oath:
Personally appeared before me, the undersigned authority in and for the said county and state, Jane Doe, who, after by me being first duly sworn, stated on oath that the matters and things set forth in the foregoing Petition are true and correct as therein stated.
Each serves an important function, but their functions are entirely different, and they are not interchangeable.
If you have to file an affidavit, such as an affidavit of known creditors, or an affidavit of diligent inquiry for publication process, or if you must file a sworn pleading in an estate, an acknowledgment simply will not do the job. All of those call for swearing on the part of the maker, and there is no swearing in an acknowledgment.
But, you may say, “It’s notarized; that should do it, right?” Wrong. All the notary is doing is witnessing. In one instance, she is witnessing a signature (acknowledgment). In the other she is administering and recording an oath. It’s two distinctly different things.
I am bringing this to your attention because I have had to send lawyers scurrying back to the staring line when I look at the document that is styled “Affidavit,” which requires an oath, but on closer examination includes only an acknowledgment. Without a swearing, it’s not an affidavit.
Make sure your office staff understands the difference and selects the correct one to meet the function. It can save you time, money, and embarrassment.
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