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.
“Quote Unquote”
November 4, 2016 § Leave a comment
“True peace is not merely the absence of tension: it is the presence of justice.” – Martin Luther King, Jr.
“Deeds of kindness are equal in weight to all the commandments.” – Talmud
“ … equity, though just, is not legal justice, but a rectification of legal justice. The reason for this is that law is always a general statement, yet there are cases which it is not possible to cover in a general statement.” – Aristotle
Outsmarting One’s Self
November 3, 2016 § 2 Comments
Sometimes it just seems smart to skip spending the money on lawyers and to represent one’s self. Sometimes it doesn’t seem quite so smart
Take the case of Walter Poole. He had been appointed administrator of the estate of his sister, Vera. Michael Walton, another of Vera’s heirs, filed a motion to remove Poole as administrator. At the hearing, Poole said he had no objection to removal or to Walton’s appointment. The chancellor did what any rational human being would have done and removed Poole, replacing him with Walton.
For some reason not easily discernible, Poole appealed. His appeal was pro se, by the way. He assigned three errors: (1) that the chancellor erred in removing him as administrator; (2) that the chancellor failed to make adequate findings of fact; and (3) that the chancellor erred in refusing to hear evidence as to Vera’s wishes for disposition of her property and appointment of Walton.
In Poole v. Walton, decided October 11, 2016, the COA (predictably) affirmed. In an opinion that was mercifully succinct and not unnecessarily erudite, Judge Lee wrapped up the rationale:
I. Removal of Poole as Administrator
¶6. Poole contends that he should not have been removed as administrator of Vera’s
estate. However, Poole stated during the hearing that he had no objection to either his
removal as administrator of Vera’s estate or the appointment of Walton as administrator. This issue is without merit.
II. Findings of Fact
III. Other Evidence
¶7. In his other issues, Poole asserts that the chancellor should have allowed him to
submit evidence of “Vera’s true intent” regarding her property and the appointment of an administrator over her estate. Poole implies that Vera had a will but that it was destroyed or withheld by Walton. But Poole admitted during the hearing that he had no proof to support his allegations. We find no merit to Poole’s remaining issues.
Not much there for the scholars to chew on. But for the rest of us, it’s mercifully brief and to the point. Judge Lee didn’t have a lot to say about it. And neither shall I.
Paying Attention
November 1, 2016 § 8 Comments
Has this ever happened to you? You have arrived at the head of the line at Wendy’s (or your customary fast-food joint):
You: I would like a small number one combo to go; hold the cheese and onions.
Wendy: Number one combo. Here or to go?
You: To go. And did you get the no cheese and onions?
Wendy: Number one combo. Large or small?
You: Uh, small. And no cheese and onions, right?
Wendy: You want no cheese and onions?
You: Right. No cheese and onions.
Wendy: Number one combo. No cheese and onions. Small. Here or to go?
[If you weren’t paying close attention, you might want to read through that again slowly]
When you get to your vehicle, odds are 3-1 that there is either cheese or onions, or both, on your burger. Happens all the time.
Not trying to pick on Wendy’s. Or fast-food joints in general. Or the people who work there. It’s just a cultural thing nowadays that people are used to getting their information in small, rapid snippets. They are accustomed to doing three or four things all at once, not doing any of them particularly accurately. They simply are not used at all to pausing to gather enough information and apply a cognitive process to it. That takes too much time and effort.
And our modern apparatuses facilitate this. I have sat at a table in a nice restaurant and observed all four people at a neighboring table studying their smart phones as if they were sacred idols. No conversation. No interaction. When the waiter asks if they are ready to order the scramble is on to pick something off the menu so they can get back to their devices. At home, how many of us spend our evenings staring at the tv screen, or dabbling on a laptop or tablet while the tv is going, or doing all of that and talking on the phone — all while someone else sits across the room doing the same? None of this is paying attention, by the way; it’s scattering attention to render it completely ineffective.
This lack of attention thing seeps into your practice via your clients. You get something like this from your clients all the time: “You said the judge would definitely find my ex in contempt for not allowing me visitation” when you know good and well you never said any such thing. People don’t take time to hear and process.
Oh, and you and your office staff are not immune. You proofread discovery while answering email while returning phone calls and giving directions to office staff. You can’t pay attention to one thing when your attention is divided four ways.
It seems to work so well in everyday life, though. People seem to survive and even thrive while juggling three different devices and information sources.
But what works in pop culture and even in day-to-day business does not necessarily work well at all in the law.
Not paying attention is a luxury in which no one in the law or the judiciary can afford to indulge. Too much is at stake. The law requires precision in language, in thought, and in writing. Poorly worded questioning will allow a slick witness to slither away from the truth, or, worse, will deprive you of a crucial point in the record for appeal. Your unthoughtful arguments will be picked apart by counsel opposite and the court. A sloppily drafted contract or PSA will wind your client back in court nine times out of ten.
Lawyers who have been here in the Far East of Mississippi can confirm that I don’t do telephone conferences except in the most extreme situations. That’s because if you are sitting in my court room or in my office I can observe whether you are paying attention and whether I am making contact with gray matter. Over the phone, I don’t know that; I don’t know that you aren’t practicing your putting, or texting, or working crossword puzzles, or playing Minecraft while I am instructing how I want the order drawn.
Paying attention may be our most essential survival skill. A wildebeest that does not pay attention, for example, gets to enjoy being a lion’s dinner. It certainly applies in the law. Pay attention: the life you save may be your own.
The Dismissive Dismissal
October 31, 2016 § 2 Comments
In the case of Crater v. BNY Mellon, handed down October 18, 2016, the trial court dismissed the plaintiff’s complaint for lack of standing and refused her motion to amend.
Bank of New York (BNY) Mellon had begin foreclosure on the deed of trust (DT) on Brenda Crater’s home. She filed suit alleging that her original mortgage company, HLC, had improperly assigned its interest in the DT to BNY Mellon.
Mellon moved to dismiss for failure to state a claim (R 12(b)(6)) on the basis that Crater had no standing to dispute the assignment.
Crater then filed a motion to amend to assert various new claims, including fraud.
The chancellor, six days later, summarily dismissed Crater’s complaint.
Crater moved to amend or alter the dismissal order claiming that the court improperly failed to grant her motion to amend. The chancellor overruled the motion and refused to grant leave to amend, finding that the new claims had no legal basis and were barred by the SOL. Brenda appealed.
In its opinion, by Judge Greenlee, the court rejected Brenda’s argument that the trial judge erroneously dismissed her complaint:
¶10. Crater asserts that the trial court erred by not ruling on her motion to amend her
complaint prior to granting Mellon’s motion to dismiss. Mississippi Rule of Civil Procedure 15(a) states that when a Mississippi Rule of Civil Procedure 12(b)(6) motion is before the court, leave to amend shall be freely given when justice so requires. M.R.C.P. 15(a). If the facts and circumstances relied upon by a plaintiff may be a proper subject of relief, she should be given the opportunity to test her claim on the merits. Webb [v. Braswell, 930 So.2d ]387] at 393 (¶9) (citing Moeller v. Am. Guar. & Liab. Ins., 812 So. 2d 953, 962 (¶28) (Miss. 2002)). If it is apparent that the amendment would cause undue prejudice to the opposing party because the amendment would be futile, then leave should not be freely given. Id.
The court went on to find that, since Crater’s new claims were against a non-party who had not been served with process, and the SOL barred the vague claims, and since they invoked a statutory right that did not exist, amendment would be futile, and should not have been granted. The chancellor, therefore, was not in error.
This case is a reminder that, if you get dismissed per R12(b)(6), you do not have an automatic right to a do-over on your pleadings. You must have a viable, judiciable claim.
The amendment provision of 12(b)(6) is designed to prevent an otherwise viable suit from being dismissed due to flawed pleading. For instance, if you file a child custody modification case and do not plead that “there has been a material change in circumstances that is having or has had an adverse effect on the minor child,” or words to that effect, the complaint fails to state a claim. See, McMurry v. Sadler, 846 So.2d 240, 244 (Miss. App. 2002). If the other side tests the sufficiency of your pleading that omitted those words, and the judge sustains their motion, you should be granted leave to amend to add the appropriate language.
If you get dinged by a 12(b)(6) motion, be sure you make an immediate motion for leave to amend. The rule specifically states that, ” … if the motion is granted, leave to amend shall be granted in accordance with Rule 15(a).” The rule does not say that the judge shall automatically grant it without your motion to do so, although I see no reason why the judge can not; however, if the judge does not do it sua sponte, and you stood silent, you should assume that you don’t have leave to amend, and your suit may go bye-bye with the running of time.
A post on the critical importance of pleading both material change and adverse effect in custody-modification cases is at this link.
Unknown Heirs: Doing Publication Right
October 20, 2016 § 3 Comments
A recurring problem in this court is lawyers screwing up publication process for unknown heirs in an heirship determination. When you don’t do it right, you get sent beck to square one, causing further delay in the case, even when your client is breathing down your neck to get the estate closed so they can quit spending money on attorneys and enjoy their inheritance.
It doesn’t have to be that way.
Doing publication for unknown heirs correctly is pretty simple if you will do one simple thing: READ THE RULE!
Since many of you apparently do not own, or know where to find, Rule Books, I am going to quote the two essential rules covering the subject for you:
MRCP 4(c)(4)(D): When unknown heirs are made parties defendant in any proceeding in the chancery court, upon affidavit that the names of such heirs are unknown, the plaintiff may have publication of summons for them and such proceedings shall be thereupon in all respects as are authorized in the case of a nonresident defendant …
MRCP 4(d)(4)(A): If the defendant in any proceeding in a chancery court, or in any proceeding in any other court where process by publication is authorized by statute, be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry and the post office address of such defendant be stated in the complaint, petition, or affidavit, or if it be stated in such sworn complaint or petition that the post office address of the defendant is not known to the plaintiff or petitioner after diligent inquiry, or if the affidavit be made by another for the plaintiff or petitioner, that such post office address is unknown to the affiant after diligent inquiry and he believes it is unknown to the plaintiff or petitioner after diligent inquiry by the plaintiff or petitioner, the clerk, upon filing the complaint or petition, account or other commencement of a proceeding, shall promptly prepare and publish a summons to the defendant to appear and defend the suit. The summons shall be substantially in the form set forth in Form 1-C.
The bold language above is what you need.
Here’s the way to do it:
- Have your fiduciary or someone with personal knowledge sign an affidavit that (1) there are no other persons known to be heirs of the decedent, and, if there are, they are unknown to the affiant, (2) after diligent inquiry.
- The affidavit must be filed before issuance of the summons.
- The publication must be substantially in the form of Form 1-C.
That’s it. That will cause an effective publication.
A few pointers:Any sworn statement with the proper language filed before issuance of the summons will do the job. So, why not revamp your form complaint to open an intestate estate to include the affidavit language. Likewise, if you do a stand-alone determination of heirship, add a paragraph with the appropriate language and make sure it is sworn to by a client with knowledge. One lawyer I know added a prayer for determination of heirship to his estate-opening complaint so that he did not have to file a separate pleading.
You’ll definitely need to do all that correctly, because MCA § 91-7-293 requires in part that “The executor or administrator shall file with his final account a written statement, under oath, of the names of the heirs or devisees and legatees of the estate, so far as known … the statement must aver that diligent inquiry has been made to learn the same without avail …
Some previous posts on the same subject are here, here, and here.
