The Better Chancery Practice Blog

Good Friday

Courthouse closed.

According to the Mississippi Legislature’s Bill Status site, HB 571, which we discussed here previously, died in committee on March 22, 2016. The measure would have allowed enhanced-permit handgun-carriers to bear arms anywhere in a courthouse except the courtrooms, judges’ chambers, and judicial staff offices. Here is the link to the legislature’s status report.

Here are the other bills that may be of interest to chancery practitioners still alive as of March 22:

HB 519 MS Unborn Child Protection from Dismemberment Abortion Act; create.
03/22 (S) Title Suff Do Pass As Amended

Mims HB 553
* Human trafficking; increase penalty and authorize center for violence prevention.
03/22 (S) Title Suff Do Pass As Amended

Currie

HB 767 Trespassers; codify duty of care to.
03/22 (S) Title Suff Do Pass As Amended

Hood

HB 772 Youth court; authorize counsel to represent indigent parent.
03/22 (S) Title Suff Do Pass

Gipson

HB 786
* “Mississippi Church Protection Act”; create.
03/17 (S) Title Suff Do Pass As Amended

Gipson

HB1240 Termination of Parental Rights.
03/17 (S) Title Suff Do Pass As Amended

Lamar

HB1375 Alcoholics and drug addicts; DMH shall try to arrange for supportive services upon discharge from treatment facility.
03/22 (S) Title Suff Do Pass As Amended

Barker

HB1413
* Child abuse; provide that a trafficked child is an abused child.
03/17 (S) Title Suff Do Pass

Hood

HB1523
* The “Protecting Freedom of Conscience from Government Discrimination Act”; create.
03/22 (S) Title Suff Do Pass

Gunn

HB1529 Appeal bond requirements; revise.
03/22 (S) Title Suff Do Pass As Amended

Gunn

HB1635 Appropriation; Supreme Court, Court of Appeals and trial judges services.
03/21 (S) Title Suff Do Pass As Amended

Frierson

SB2179
* Mississippi Department of Child Protection Services; establish.
03/22 (H) Title Suff Do Pass As Amended

Kirby

SB2211
* Trust law; make technical corrections.
03/22 (H) Title Suff Do Pass

Doty

SB2344
* Writs of garnishment; limit liability of garnishee if garnishee is a financial institution.
03/22 (H) Title Suff Do Pass As Amended

Parks

SB2418 Divorce; domestic violence as additional ground for.
03/22 (H) Title Suff Do Pass As Amended

Doty

SB2483
* Articles of incorporation; revise.
03/15 (H) Title Suff Do Pass As Amended

Parks

SB2493
* Supporting and Strengthening Families Act; create.
03/22 (H) Title Suff Do Pass As Amended

Parker

SB2660 Senior status judges; revise service qualification.
03/22 (H) Title Suff Do Pass

Tindell

The COA, in Bailey v. Estate of Barksdale, et al., decided March 1, 2016, dismissed Bailey’s appeal because the judgment appealed from disposed of fewer than all of the pending issues, so that the COA lacked jurisdiction per MRCP 54(b).

In that case, the estate had claimed that Bailey had improperly utilized a POA to convert assets of the decedent to his own use. Summons per R4 and R81 were issued, and he was personally served. He never appeared, however, at any of the many hearings that were held, and the chancellor entered a default judgment against him. There is no record of any hearing. He filed a R60 motion to set aside the default judgment, which the chancellor denied. He appealed and the COA dismissed because the judgment appealed from specifically reserved for a future date the determination of his liability for attorney’s fees. That’s fairly straightforward.

What intrigues me about this case, though, is Judge James’s dissent, which I quote in its entirety:

 ¶40. I would find that the case should be dismissed for lack of subject-matter jurisdiction; [Fn 2] thus, I respectfully dissent.

[Fn 2] “Jurisdiction over the nature of the case and the type of relief sought; the extent to which a court can rule on the conduct of persons or the status of things.” Black’s Law Dictionary 93 (10th ed. 2014)

¶41. Gerald argues that the trial court erred in denying his Mississippi Rule of Civil Procedure 60 motion, because it was fundamentally unfair to enter a default judgment since no answer is required under Rule 81, and he did not appear on September 13. Moreover, there was no hearing or introduction of evidence on the estate’s petition.

¶42. Under Rule 81, even when the defendant is properly served and fails to appear, an entry of default is improper since no answer is required to be filed by the defendant unless ordered by the court. Saddler v. Saddler, 556 So. 2d 344, 345 (Miss. 1990). The trial court must hold an evidentiary hearing on the issues set out in the pleadings before granting a judgment, and failure to do so is reversible error. Curry v. Frazier, 119 So. 3d 362, 366 (¶12) (Miss. Ct. App. 2013).

¶43. The estate argues that the claims for which the default judgment was granted are not within Rule 81(d)(2) jurisdiction. The chancellor’s default judgment and order to show cause indicate that she, likewise, had determined that while some of the claims in that petition were within the jurisdiction of Rule 81(d)(2), the claims of unjust enrichment, constructive trust, and breach of fiduciary duty were not. And on that basis, since Gerald was served with a Rule 4 summons and failed to respond within thirty days, the chancery court granted a default judgment on those three claims.

¶44. As to the estate’s argument that the claims of unjust enrichment, constructive trust, and breach of fiduciary duty generally are not exclusively within Rule 81(d)(2) jurisdiction, I agree. Nevertheless, the specific claims at issue were brought within a petition dealing with estate matters. The Mississippi Rules of Civil Procedure are clear that, when dealing with estate matters, Rule 81 governs. M.R.C.P. 81(d)(2). No interpretation of that rule in any way suggests that the court may choose to apply a Rule 4 summons to underlying causes of action enumerated in a petition dealing with estate matters. Furthermore, there is no caselaw to support the estate’s argument that this procedure is proper.

¶45. Rule 81(d)(3) states that “[c]omplaints and petitions filed in the actions and matters enumerated in subparagraphs (1) and (2) above shall not be taken as confessed.” Although the record does not say what transpired on September 13 when the case was set for a hearing, the record does show that Gerald was not present in court. The chancellor granted the default judgment because Gerald failed to file a response within thirty days and failed to appear on September 13. Thus, the default judgment was granted under Rule 4.

¶46. The majority opinion relies on the fact that the parties did not obtain permission from the trial court and our supreme court under Mississippi Rule of Appellate Procedure 5. Under Rule 5, an interlocutory order is not appealable unless the Mississippi Supreme Court grants permission. Under Rule 54(b), a trial judge “may direct the entry of a final judgment as to one or more but fewer than all of the claims of the parties.” Here, the chancellor did not make this determination because it was not requested. I agree with the majority opinion that a Rule 54(b) certification is required in order to appeal an intermediate ruling.

¶47. However, the Rule 4 summons did not give the chancellor jurisdiction over those claims before the chancery court. Since jurisdiction was not proper, the trial court did not have the authority to grant a default judgment, nor does the appellate court have jurisdiction to hear the appeal. The estate issued a Rule 4 and Rule 81 summons as a “catch all” tactic, but our rules do not provide for this procedure.

¶48. The lack of proper service of process is both jurisdictional and dispositive in this case. Even though there is no Rule 54(b) certification, we should not reach that issue since process was not proper.

¶49. The record before the Court indicates that the default judgment was granted because Gerald had been properly served with a Rule 4 summons. The record before this Court also indicates that no hearing was held on September 13 as Rule 81 requires. Because Rule 4 did not give the chancellor the authority to grant the default on an estate matter, I would dismiss the case for lack of subject-matter jurisdiction.

What lawyer who has spent any appreciable time in chancery court has not been confronted by the R4 vs. R81 conundrum? I think Judge James raises some interesting and valid points about how jurisdiction hangs on the process that is used.

Also, if you want to satisfy R81, you must put on proof. None of the matters enumerated in MRCP 81(a) or (b) may be taken as confessed. Even if you do not make a record with a court reporter, you need to recite in your order or judgment that testimony was heard and recite the court’s findings based on that testimony.

I am, of course, not privy to the reason why the other judges did not buy into Judge James’s reasoning. I speculate that they thought the process problem was cured by the dual process procedure that was used. Her point about entry of a default judgment and the lack of a hearing is a good one, though.

Reprise replays posts from the past that you might find useful today.

“ASK NOT FOR WHOM THE BELL TOLLS …”

September 27, 2011 § 2 Comments

In case you need a reminder that statutory appeals require that you follow the letter of the law in every particular, or suffer dismissal, the case of Lamberth v. S. Panola School District will serve the purpose quite nicely.

Joseph Eugene Lamberth was terminated from his Assistant Principal job with the South Panola School District on February 4, 2014. He appealed to chancery court per MCA 37-9-113(1)-(2), by filing a petition. He did not post a bond, however. The school district filed a motion to dismiss for failure to post the bond. Lamberth responded that he did not know of the requirement to file a bond. The chancellor dismissed the appeal, and Lamberth appealed the dismissal.

In a decision handed down February 16, 2016, the COA affirmed. Judge Ishee spelled out the reasoning:

¶5. The grant or denial of a motion to dismiss is reviewed de novo. Breland v. Harrison Cty. Sch. Bd., 96 So. 3d 61, 64 (¶9) (Miss. Ct. App. 2012) (citations omitted). The applicable statute for appeals of school-board actions states the following:

(1) Any employee aggrieved by a final decision of the school board is entitled to judicial review thereof, as hereinafter provided.

(2) An appeal may be taken by such employee to the chancery court of the judicial district in which the school district is located, by filing a petition with the clerk of that court and executing and filing bond payable to the school board with sufficient sureties, in the penalty of not less that (t)wo (h)undred (d)ollars ($200.00), conditioned upon the payment of all of the costs of appeal, within twenty (20) days of the receipt of the final decision of the board.

Miss. Code Ann. § 37-9-113(1)-(2) (Rev. 2013).

¶6. As seen above, the statute clearly outlines the need for the filing of a $200 “bond payable to the school board with sufficient sureties.” Id. We have previously addressed this exact issue of whether the failure of a movant to file the $200 bond warranted dismissal of the appeal. In Breland, we held: “Breland’s failure to file a timely bond is jurisdictional and is fatal to her appeal. This Court repeatedly has held that statutory appeal bonds are jurisdictional – that is, they relate to a court’s appellate jurisdiction.” Breland, 96 So. 3d at 65-66 (¶12) (quoting 5K Farms Inc. v. Miss. Dep’t of Revenue, 94 So. 3d 221, 227 (¶23) (Miss. 2012)). That said, the Mississippi Supreme Court “has recognized that a failure to meet the statutory requirements (of a bond) may be excused by extenuating circumstances.” Miss. State Pers. Bd. v. Armstrong, 454 So. 2d 912, 915 (Miss. 1984) (citations omitted). However, as was the case in Armstrong, we fail to find any extenuating circumstances that would warrant overlooking Lamberth’s failure to pay the statutorily required bond. Lamberth’s excuse is merely that he was not aware that a bond needed to be filed, despite the distinct and unambiguous statutory language requiring the bond payment. Citing a long-held tenet of law, we remind Lamberth that “ignorance of the law excuses no one.” Hoskins v. Howard, 214 Miss. 481, 497, 59 So. 2d 263, 269 (1952). Hence, the chancery court properly dismissed Lamberth’s appeal due to lack of jurisdiction, and we affirm the dismissal.

The COA went on to reject Mr. Lamberth’s challenge to the trial court’s dismissal with prejudice.

A few points:

• If you’re going to take on representation of someone in a statutory appeal case, a good starting point is to read the statute. Let me reiterate that: read the statute. Everything you need to know to represent your client is there: the court with jurisdiction; the time limit to appeal; what you need to do (e.g., file a bond) to perfect your appeal; the basis for an appeal; and anything else pertinent to your representation is right there. And while you have your nose stuck in the book, peruse the annotations.
• My ancient Seventh New Collegiate Dictionary defines “extenuate” as “to lessen or try to lessen the seriousness or extent by making partial excuses: mitigate.” If you’re going to claim extenuating circumstances, try to make sure that they have some substance, unlike that offered by Mr. Lamberth.
• It’s nice to have a case citation to go along with the old “ignorance of the law is no excuse” saw. I have a feeling I may find a use for that case somewhere along the line.

MCA 93-5-1 (Sixth) provides for a divorce on the ground of “Habitual and excessive use of opium, morphine or other like drug.” The burden of proof is clear and convincing evidence.

Brian Booker charged his wife, Amy, with habitual and excessive user of drugs in his divorce complaint. In 2011, following gastric-bypass, gallbladder, and multiple kidney-stone surgeries, along with esophageal stretching, Amy was prescribed Lortab for pain. Brian charged that her use was excessive.

The evidence showed that there were episodes where Amy became impaired while taking the medication. She ran up credit card debt. Her mother testified that she was addicted to the drug. Family members testified that they locked the meds in a closet; when Amy found the key she suffered either an overdose or seizure and checked into a rehab facility where she stayed only one night. She got a DUI, suffered a seizure during the stop and had to be taken to a hospital, and had no recollection of the event.

Amy denied being abusing or impaired by the drug, and some of her family members backed up her testimony. There was no medical or pharmaceutical testimony, and nothing in the record established that she had been diagnosed with addiction. There was no evidence that Amy was over-prescribed medications.

The chancellor found that Brian had failed to meet his burden of proof, and that Amy had proven that her use of the drug was based on valid prescriptions. He dismissed Brian’s complaint, and Brian appealed.

In Booker v. Booker, decided March 8, 2016, the COA affirmed. Judge Griffis laid out what is required to make a case on the Sixth Ground for divorce:

¶6. To prove the ground of habitual and excessive use of opium, morphine, or other like drugs, the supreme court has held:

A complainant must prove (1) that the guilty spouse’s use of drugs was habitual in that it was customarily and frequently indulged; (2) that the guilty spouse’s drug use was so excessive that [s]he did not have the ability to control h[er] appetite for drugs; and, (3) that the drugs used were morphine or opium or comparable . . . in effect.

Ladner v. Ladner, 436 So. 2d 1366, 1375 (Miss. 1983); see also Miss. Code Ann. § 93-5-1.

¶7. In Ladner, the court ruled that the “habitual” use of drugs “requires more than an occasional indulgence in drugs.” Ladner, 436 So. 2d at 1373. Rather, “the complainant [must] show that the defendant customarily and frequently uses drugs.” Id. The use of drugs must not only be “habitual” but also “excessive.” Id. at 1374. This element “requires an abuse of drugs.” Id. The supreme court has ruled:

[T]he guilty spouse must be so addicted to the use of drugs that [s]he cannot control h[er] appetite for drugs whenever the opportunity to obtain drugs is present. However, we consider it a justifiable excuse for such behavior where . . . the defendant is prescribed such drugs by a physician for legitimate reasons.

Id.

¶8. The Ladner court explained the “excessive” element through analysis of Rindlaub v. Rindlaub, 125 N.W. 479 (N.D. 1910). There, a wife sought a divorce from her husband on the ground of his drug use. Though the husband’s use was habitual, the court denied the divorce and found that because the drugs were taken to alleviate pain caused by health problems, “such a habit [was] reasonably and necessarily caused by conditions over which the victim had no control . . . .” Ladner, 436 So. 2d at 1374 (citing Rindlaub, 125 N.W. at 496).

¶9. Prescription-drug use was the issue in Ladner. “The testimony showed that Mr. Ladner was not truthful with his medical doctors concerning his frequency of use and dependency on these drugs. He exceeded the prescribed dosages.” Id. at 1369. Ladner’s pharmacist also testified about the prescriptions that he filled. Id. at 1373.

¶10. In Lawson v. Lawson, 821 So. 2d 142, 145 (¶14) (Miss. Ct. App. 2002), this Court affirmed a divorce on the ground of habitual and excessive use of drugs. The Court ruled that the chancellor’s decision was based on evidence that the wife obtained drugs through “over-prescription by medical personnel” and by “simultaneously seeking treatment from multiple physicians, without sharing the fact that she was seeing and obtaining prescriptions from all of them.” Id. at (¶13). Professor Deborah Bell in her treatise, cites Lawson for the proposition that “[h]abitual use of drugs as prescribed is not grounds for divorce even if the defendant becomes dependent on the drugs. But divorce may be granted when a spouse’s initial, legitimate use of prescription drugs becomes misuse.” Deborah H. Bell, Bell on Mississippi Family Law § 4.02(7)(c) (2011). Thus, when we consider “excessive” we must include in the definition the “misuse” of prescription drugs.

¶11. Here, within this definition, Brian must prove that Amy’s use of Lortab and similar pain medications was “excessive.” The chancellor found that it was not. And the chancellor ruled that “[Brian’s] proof showed without question that in every instance of her use of Lortab, the medication had been prescribed by a doctor for her very legitimate health problems.”

The court went on to examine the trial judge’s rationale, and affirmed the conclusion that Brian had failed to meet his burden of proof.

This case is a reminder of several points: (1) if you do not meet your burden of proof, your client will be denied a divorce; (2) the burden of proof for every ground for divorce except HCIT is clear and convincing evidence; (3) this Sixth ground has three important elements, each of which must be proven by clear and convincing evidence, and if you fail on one, you fail on all.

Up for comment at this link are some new rules proposed to redefine the practice of law in Mississippi vis a vis unauthorized practice and “interloping” by lawyers from other states. Your comments are welcome through March 28, 2016.

One salutary goal is to clarify who may come into Mississippi from other states to handle legal matters here, including litigation, arbitrations, mediations, etc., and the myriad other transactions that have lawyers flitting from state to state, and dipping into our jurisdiction.

An important provision, as I see it, is Section 2(f), which reiterates longstanding Mississippi law that preparation of agreements, contracts, pleadings, deeds, and the like does constitute the practice of law. The obvious reason is that selection of the proper documents, their terms, and when and how to use them require legal judgment and analysis beyond the skill level conferred by Google searches.

We all have seen far too many dreadful computer-generated pleadings and documents that people purchase online from papermills. Likewise, it seems that every county has one or several backwoods, shadowy characters who, for a “modest” fee, will prepare the paperwork parties need to file ID divorces and simple matters. In most cases, the likelihood of damage is small, but there are no ethical bounds on those document-preparers, and there is always the possibility that some legal issue with later, larger ramifications, will go overlooked.

Whether these changes will do the job remains to be seen. It seems to be an elusive problem.