The Better Chancery Practice Blog

Yesterday we visited the appeal of Michael Matthews from a chancellor’s adverse decision that he had not overcome the notarial presumption in his case where he claimed that he had not executed various notes and deeds of trust.

Another claim Michael made unsuccessfully at trial was that the signatures were forgeries. When the chancellor ruled against him, Michael appealed raising that issue also.

The COA affirmed on August 27, 2019, in Matthews v. Whitney Bank, et al. Again, Judge Jack Wilson wrote the 9-0 opinion, Tindell not participating:

27. Michael also argues that the chancellor clearly erred by finding that the deed of trust and loan documents were not forged. Michael argues that the chancellor ignored “obvious” differences between the allegedly forged signatures and his true signature. He also argues
that his testimony was corroborated by Beth’s testimony and assertion of her Fifth Amendment privilege against self-incrimination.

¶28. In his opinion, the chancellor found:

The documentary evidence introduced at trial purportedly signed by Mr. Matthews each contains a similar signature. Mr. Matthews introduced exemplars of what he purports to be his genuine signature. While there was no lay witness or expert witness offered by either side concerning the bank signatures, none was required. This Court finds it could determine that the
contested signatures were forged if the purported genuine signatures and the purported forged signatures were obviously different. The Court finds . . . that, while the signatures are not exactly similar, they are not so dissimilar as to make the purported forged signatures obvious forgeries.

The chancellor also noted that Michael testified that he did not sign the documents, while Beth “refused to testify” on the subject.

¶29. To overcome the notarial presumption, it was Michael’s burden to prove forgery by clear and convincing evidence. Mapp [v. Chambers], 25 So. 3d [1096,] at 1101 (¶22) [(Miss. Ct. App. 2010)]. “Clear and convincing evidence is such a high evidentiary standard that it surpasses even the standard of overwhelming weight of the evidence.” Miss. Comm’n on Judicial Performance v. Shoemake, 191 So. 3d 1211, 1218 (¶26) (Miss. 2016) (quotation marks omitted). As an appellate court, we must “bear in mind” this high standard in determining whether there is sufficient evidence to support the chancellor’s findings. Mullins v. Ratcliff, 515 So. 2d 1183, 1189 (Miss. 1987). “Where the appealing party has such a burden at trial, he necessarily has a higher hill to climb on appeal . . . .” Id. Stated differently, the quantum of evidence necessary to affirm the chancellor’s findings “is less than it would be if the preponderance of the evidence rule applied.” Id.

¶30. The chancellor did not clearly err by finding that Michael failed to meet his burden of proof. Although Michael denied signing the document, the Mississippi Supreme Court “has long been committed to the doctrine that the testimony of parties in interest is not
sufficient to overturn such a certificate.” Bowers v. Fields, 148 So. 358, 358 (Miss 1933) (citing Mallory v. Walton, 119 Miss. 396, 81 So. 113, 114 (Miss. 1919)).

¶31. Moreover, the chancellor was not required to infer forgery from Beth’s assertion of her privilege against self-incrimination. In a civil case, an adverse inference may be drawn from a defendant’s assertion of the privilege—i.e., it is “permissible” for the fact-finder to draw such an inference. Morgan v. U.S. Fid. &Guar. Co., 222 So. 2d 820, 828 (Miss. 1969). However, the fact-finder is not required to do so. In addition, the rule permitting an adverse inference “has only been applied in Mississippi to the actual parties to a civil action.” Gibson v. Wright, 870 So. 2d 1250, 1260 (¶42) (Miss. Ct. App. 2004). In this case, Beth settled and consented to the entry of judgment against her prior to trial. She was not a party at trial. Finally, the chancellor could have been persuaded that an adverse inference was not warranted on the particular facts of this case. Beth and Michael are still married, and Michael is seeking to prevent foreclosure on the marital home. Under these circumstances, a plausible inference is that Beth thought that she could help Michael’s case and save their home by “pleading the Fifth.” In any event, it is sufficient to say that the chancellor was not required to draw any particular inference from Beth’s assertion of her privilege. The chancellor did not clearly err by declining to infer forgery.

¶32. Michael also argues that the chancellor erred by not appointing a handwriting expert to opine on the authenticity of the signatures. The possibility of a court-appointed expert was discussed briefly at a pretrial hearing; however, Michael took no further action on the issue. He did not file any motion requesting a court-appointed expert and also failed to designate an expert of his own. Indeed, in his answer and again in his opening statement at trial, Michael specifically argued to the court that a handwriting expert was unnecessary. Michael waived this issue by failing to raise it in the trial court. City of Hattiesburg v. Precision Constr. LLC, 192 So. 3d 1089, 1093 (¶18) (Miss. Ct. App. 2016) (holding that “it is not sufficient to simply ‘discuss’ or mention an issue at a hearing”—the issue is waived unless it is specifically “presented to [the trial judge] for decision”).

¶33. Moreover, the Supreme Court and this Court have stated that “[t]he appointment of an expert by the court under Mississippi Rule of Evidence 706 is done sparingly, and then only in exceptional cases involving complex issues where the expert’s testimony would be
helpful to the trier of facts.” Heigle v. Heigle, 771 So. 2d 341, 349 (¶29) (Miss. 2000) (quoting Trilogy Commc’ns Inc. v. Thomas Truck Lease Inc., 733 So. 2d 313, 317 (¶10) (Miss. Ct. App. 1998)). We review a trial judge’s decision to appoint or not appoint an expert for abuse of discretion. Id. at 749 (¶¶28-30); Trilogy Commc’ns, 733 So. 2d at 317 (¶10). We cannot say that the chancellor abused his discretion by not appointing an expert sua sponte.

¶34. There is sufficient evidence in the record to support the chancellor’s finding that Michael failed to meet his burden of proving forgery by clear and convincing evidence. Estes’s testimony was competent evidence that Michael did, in fact, sign the 2008 deed of
trust. In addition, there was other evidence from which the chancellor could have inferred that Michael was aware of the loans from Whitney Bank and that Michael’s denials were not credible. For example, the Matthewses’ tax returns, which Michael admittedly signed,
showed mortgage interest deductions and attached mortgage interest statements from Whitney Bank. Sidney Rice also testified that he confirmed with Michael that he had signed the 2007 deed of trust. Although Rice’s notarization of the 2007 deed of trust was deficient
(see supra note 2), Rice’s testimony nonetheless rebuts Michael’s claims that he knew nothing about any of the loans at issue. Based on the totality of the evidence, the chancellor could have determined that Michael’s testimony was not credible. At a minimum, the chancellor could have determined that Michael’s testimony was insufficient to meet his high burden of proof.

A few cogitations:

• The testimony of the parties alone is not sufficient to overcome a notarial certificate. In fact, relying on your client’s testimony alone is an iffy way to establish many facts or support many claims in chancery. For instance, your client testifies that he made every payment on his wife’s car from his own, personal checking account. The judge wonders where are the checks? Or the wife testifies that the police were called to the home and they saw her bruises, which the husband denies. Where is the police report? Or why was the officer not called? These are thoughts that most chancellors have as the witnesses drone on.
• Did you know that the Fifth Amendment civil adverse inference is not mandatory? And that it is not applied against non-parties?
• And if you take nothing else away from this case, the point in ¶33 that you must bring a matter before the judge for decision if you want to raise the issue on appeal is golden. If Michael really wanted the judge to appoint an expert, he needed to file a motion and have the judge rule on it. Merely mentioning it in a bench conference or in chambers isn’t good enough.