A Bluewater Bravo
February 9, 2016 § 3 Comments
The old rule that, if a trial judge in a ruling adopts one party’s proposed findings of fact and conclusions of law verbatim, her ruling is subject to less deference and greater scrutiny was abolished several years ago in the Bluewater Logistics case. I’ve posted about it here and here.
Now the COA has joined the party, so to speak, in the case of Carlson v. Brabham, decided January 19, 2016, in which the chancellor had adopted one party’s proposed findings of fact and conclusions of law verbatim. Although it was not expressly assigned as error, Judge Griffis took the opportunity to make this pronouncement:
¶12. Further, the supreme court has held that appellate courts must “apply the familiar abuse-of-discretion standard to a trial judge’s factual findings, even where the judge adopts verbatim a party’s proposed findings of fact.” Bluewater Logistics LLC v. Williford, 55 So. 3d 148, 157 (¶32) (Miss. 2011).
No More Heightened Scrutiny, But …
November 23, 2015 § Leave a comment
Back in April of last year I pondered the COA’s decision in Burnham v. Burnham, which affirmed the chancellor’s rulings on child support and equitable distribution in a divorce, but subjected his findings to “heightened scrutiny” and “less deference” because he adopted one side’s proposed findings of fact and conclusions of law verbatim. That post is here.
Dissatisfied with the COA’s affirmance, Matthew Burnham filed a petition for cert, which the MSSC granted. One issue he raised was the chancellor’s verbatim adoption of the other side’s proposed findings of fact and conclusions of law.
In ¶7 of the MSSC’s opinion in Burnham v. Burnham, handed down November 12, 2015, Justice Dickinson stated:
In Bluewater Logistics, LLC v. Williford, we abandoned the rule that a chancellor’s decision to adopt a party’s proposed findings of fact was subject to “heightened scrutiny.” A chancellor’s factual findings , even those adopted from a party, are reviewed for an abuse of discretion. [footnotes omitted]
So that would seem to be the last word on that subject.
This case does, however, highlight a pitfall of proposed findings. The MSSC reversed because several of the chancellor’s findings of fact, particularly those upon which he based a finding of dissipation of assets, were unsupported by evidence in the record. Those findings of fact were submitted to the chancellor by the attorneys for Mrs. Burnham. Although the chancellor had the duty to satisfy himself that the proposed findings he adopted were accurate and supported in the record, the first duty was on her attorneys to ensure that their proposed findings were accurate. As the outcome of this case illustrates, if you play loose with the facts, it can cost your client down the road.
Chancellors have different approaches to proposed findings. Some ask for them in many cases, particularly complicated ones. Others have told me that they do not like them because lawyers tilt them in favor of their clients. Still others, as I do, call for them selectively.
If you’re going to offer proposed findings, make sure you draft them like the judge is supposed to — relying only on facts in evidence and drawing fair inferences, and applying the law as it is applies. If you use proposed findings as a partisan opportunity, you just might snatch defeat from the jaws of victory.
April 3, 2012 § 3 Comments
The MSSC decision in Bluewater Logistics v. Williford, 55 So.3d 148 (Miss. 2011), is notable for several reasons. First, it’s of value to lawyers who litigate over LLC’s and contracts as a guide to the parameters of litigation in that field. Second, it spelled the demise of the “heightened scrutiny” and “lessened deference” rules formerly applied when judges adopt verbatim one side’s proposed findings of fact and conclusions of law; a post in which I touched on that point is here.
To me, though, the most potentially far-reaching impact of Bluewater is its treatment of the pleadings and the scope of relief granted by the trial judge. The COA had reversed, ruling that the chancellor had impermissibly gone beyond the scope of the pleadings. The COA decision rested on three 19th-century cases.
The MSSC granted cert and the Bluewater appellants argued to the high court that the COA was correct because Williford’s complaint had sought only injunctive relief in the form of reinstatement as a member of the LLC, and that, as a result, the chancellor was in error in awarding him equitable relief in the form of a judgment for the value of his interest in the LLC. Here’s what Justice Dickinson, writing for the majority, said, beginning at page 157:
¶ 35. Mississippi has been a “notice pleading” state since January 1, 1982, when we adopted the Mississippi Rules of Civil Procedure. [citation omitted] Under Rule 8, a complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” and “a demand for judgment.” [citation omitted] “No technical forms of pleading or motions are required.” [citation omitted] Moreover, “[a]ll pleadings shall be so construed as to do substantial justice.” [citation omitted] Rule 54(c) states that every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled by the proof and which is within the jurisdiction of the court to grant, even if the party has not demanded such relief in his pleadings …. ” [citation omitted]
¶ 36. Our decisions have reflected the shift from older forms of “code pleading” to the Rules’ “notice pleading” paradigm. In Pilgrim Rest Missionary Baptist Church v. Wallace, we stated “it is axiomatic that the relief need not be limited in kind or amount by the demand but may include relief not requested in the complaint.” [citation omitted] And in Turner [Turner v. Terry, 799 So.2d 25, 39 (Miss.2001)], we stated: “A trial judge may award a party any relief to which he is entitled, even if the party fails to make a specific demand for such.” [citation omitted]
¶ 37. In holding that the chancellor erred in granting Williford money damages, the Court of Appeals inexplicably relied on three pre–rules cases, two of which date to the 1850s. [citation omitted] We now overrule Barnes, French, and Tucker to the extent that they conflict with the requirements and provisions of the Mississippi Rules of Civil Procedure and subsequent decisions of this Court.
¶ 38. We hold that Williford’s complaint was clearly sufficient to support an award of monetary damages. The complaint is titled “Complaint for Preliminary and Permanent Injunction and Damages.” The opening paragraph stated that Williford was seeking damages. Paragraph 5 alleged the ouster was unlawful, “warranting equitable and monetary relief.” Count I of the complaint was titled “Breach of Contract” and alleged breach of contract, for which the remedy is compensatory damages. In Count III, titled “Violation of the Mississippi Limited Liability Company Act,” Williford asserted “all rights and remedies available under the applicable statute, Miss.Code Ann. § [79–29–101], et seq.” [citation omitted] Under the section titled “Damages and Relief Sought,” Williford sought (among other things) compensatory damages, an accounting of all company assets, an appraisal of the fair-market value of his share of the company, and “any other relief to which he may be entitled.”
¶ 39. Viewed as a whole, we cannot say the chancellor was in error by finding that the complaint was sufficient to put Bluewater on notice that Williford was seeking monetary relief. Accordingly, Defendants’ argument that the chancellor granted Williford relief that was beyond the scope of the pleadings is without merit.
One of those 19th-century cases reversed by the court Terry v. Jones, was referred to by me in a prior post to emphasize that pleadings are not proof.
It remains to be seen how far the courts will go in applying the pleadings aspects of Bluewater. If the decision is limited to the underlying facts, then it should not be too earthshaking because the pleadings arguably did invoke the remedies that the trial court applied. If, however, the decision is taken to mean that notice pleadings require only notice of subject matter jurisdiction, thereby opening the door to all species of relief available thereunder, then your practice of chancery law may change dramatically.
Or maybe not. It has long been the law in Mississippi that in granting equitable relief the chancellor may order all relief necessary to effect an equitable remedy, whether pled for or not. For instance, in awarding lump sum alimony the chancellor may impose an equitable lien on real propterty to secure the payment. Or, where custody is sought, the judge may order the noncustodial parent to pay child support even where it was not sought. So perhaps Bluewater is not so much a dramatic shift in the tide as it is a mere ripple on the pond.
FYI, the Bluewater holding also calls into question a prior post of mine in which I stressed that you have to ask for specific relief in your pleadings if you expect to get it.
I encourage you to read the Bluewater decision carefully to get a handle on how it can help or hurt you. You will likely come up with ways to argue it to your advantage.
WRITING YOUR WAY TO A WIN
February 28, 2012 § 12 Comments
Imagine you have concluded a grinding trial in a hotly contested case. The chancellor turns to you and says, “You write the opinion. Stick to the facts in the record, recite the applicable law, analyze the factors, and rule in your client’s favor.” After pinching yourself to make sure you’re not dreaming, you’d jump at the chance, wouldn’t you?
There is actually a tool available for you to do that very thing, and, interestingly, few attorneys voluntarily avail themselves of it.
It’s called Proposed Findings of Fact and Conclusions of Law (PFFCL).
Typically when PFFCL are called for, it is at the behest of the judge, and more often than not they are called for in complex cases. But there is no good reason why a lawyer may not request it, and there is no good reason to limit its application to complex cases only. I can not think of a single type of chancery case where PFFCL would not work.
I have seen good PFFCL and bad. The good read like a trial court opinion that would be affirmed on appeal: findings of fact are supported by evidence in the record; the applicable law is set forth; factors are analyzed and conclusions reached; rulings are set out clearly and distictly, resolving every issue in dispute. The bad are, well, bad: facts are injected that never made it into the trial; the law is inapplicable or misapplied; factors are not addressed, or they are not properly addressed; the rulings have no basis in fact or law.
The traditional rule in Mississippi was that if the trial judge adopted your PFFCL verbatim, the appellate court would give the trial court ruling less deference or subject it to heightened scrutiny. In Rice Researchers v. Hiter, 512 So.2d 1259, 1266 (Miss. 1987), the court said:
In our view, the matter of whether a trial court may adopt verbatim, in whole or in part, the findings of fact and conclusions of law of a party is within the court’s sound discretion. See 54 A.L.R.3d 868, supra. Case complexities and crushing caseloads necessitate substantial reliance upon the submissions of trial counsel. Still, the judge is a judge and not a rubber stamp. He may not be able to afford the luxury of practicing his culinary art a la the Cordon Bleu. He should remember, however, that his oath precludes a McDonald’s approach to the judicial process. Where the trial judge wholly abdicates his judicial responsibilities—where, as it were, he abuses his discretion—we doubtless have authority to intervene. Here the Chancery Court quite properly requested that each party submit proposed findings of fact and conclusions of law. These submissions were considered at an adversary hearing. Thereafter, the Court considered RRI’s motion to amend findings. These steps, coupled with the fact that this case is quite complex (in spite of its simplicity), leave us convinced that the Chancery Court acted within its authority. As indicated above, however, our obligation of appellate deference to such findings is necessarily lessened.
The rule was tossed out only last year in Bluewater Logistics v. Williford, 55 So.3d 148, 157 (Miss. 2011), where the Mississippi Supreme Court ruled that it would continue to apply the “familiar abuse-of-discretion standard” to review of chancery court decisions, even where the chancellor adopted one party’s PFFCL verbatim.
My little opening vignette is unrealistic in one sense: the judge will always allow all parties to submit their own PFFCL. But the judge can pick and choose elements of all that were submitted, or simply adopt one, or use them as a template to do his own, or ignore them.
So there you have it. As long as the findings are supported by substantial evidence in the record and the law is properly applied, the trial court ruling will be upheld. And you can be the one to write it.