March 17, 2020 § Leave a comment
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.
October 15, 2019 § 1 Comment
When Lora Ledet was 8 or 9 months pregnant, she began dating Spencer Diaz. When her son was born no father was listed on the birth certificate, and the child’s surname was that of his mother.
Lora and Spencer began living together, and, in April, 2014, an acknowledgment of paternity was filed per MCA 93-9-28 showing Spencer as the child’s father. The Department of Vital Records issued a revised birth certificate showing Spencer as the father and changing the child’s last name to Diaz.
After Lora and Spencer separated in October, 2015, DHS filed a complaint for child support. Spencer answered that the complaint was the first knowledge he had that he had been added to the child’s birth certificate, and that the acknowledgment was a forgery. He asked the court to disestablish paternity and terminate parental rights. Following a hearing, the chancellor denied him relief.
Spencer appealed, and two issues he raised were that the chancellor erroneously admitted the acknowledgment into evidence, and that its notarization was ineffective due to the notary’s failure to record the transaction.
On September 10, 2019, the COA affirmed in Diaz v. DHS and Ledet. Judge Westbrooks first laid out the standard to be applied when reviewing a trial judge’s ruling on admissibility of evidence:
¶6. “The admission of evidence is within the discretion of the chancellor, and reversal is not warranted unless judicial discretion is abused.” Sproles v. Sproles, 782 So. 2d 742, 749 (¶29) (Miss. 2001) (citing Smith v. Jones, 654 So. 2d 480, 486 (Miss. 1995)).
She then turned her attention to Spencer’s arguments on admission of the document into evidence and notary’s record-keeping:
¶7. Under Mississippi Code Annotated section 41-57-9 (Rev. 2013), “[a]ny copy of the records of birth, sickness or death, when properly certified to by the state registrar of vital statistics, to be a true copy thereof, shall be prima facie evidence in all courts and places of the facts therein stated.”
¶8. Moreover, the simple acknowledgement of paternity form was submitted in accordance with Mississippi Code Annotated section 93-9-28. There is a method for an alleged father to voluntarily acknowledge a child as his own. In In re Estate of Farmer ex rel. Farmer, 964 So. 2d 498, 499-500 (¶4) (Miss. 2007), the Mississippi Supreme Court held that “Mississippi Code Annotated Section 93-9-28 (Rev. 2004) establishes a procedure by which the natural father of a [child born out of wedlock] may voluntarily acknowledge the child as his own.” “[T]he execution of [an] acknowledgment of paternity shall result in the same legal effect as if the father and mother had been married at the time of the birth of the child.” Id. (alteration in the original). Section 93-9-28(1) provides:
The Mississippi State Department of Health in cooperation with the Mississippi Department of Human Services shall develop a form and procedure which may be used to secure a voluntary acknowledgement of paternity from the mother and father of any child born out of wedlock in Mississippi. The form shall clearly state on its face that the execution of the acknowledgement of paternity shall result in the same legal effect as if the father and mother had been married at the time of the birth of the child. The form shall also clearly indicate the right of the alleged father to request genetic testing through the Department of Human Services within the one-year time period specified in subsection (2)(a)(i) of this section and shall state the adverse effects and ramifications of not availing himself of this one-time opportunity to definitively establish the paternity of the child. When such form has been completed according to the established procedure and the signatures of both the mother and father have been notarized, then such voluntary acknowledgement shall constitute a full determination of the legal parentage of the child. The completed voluntary acknowledgement of paternity shall be filed with the Bureau of Vital Statistics of the Mississippi State Department of Health. The name of the father shall be entered on the certificate of birth upon receipt of the completed voluntary acknowledgement.
¶9. Here, Diaz maintains that the notary’s failure to have the parties sign the book under Mississippi Code Annotated section 25-33-5 (Rev. 2010) prohibits the admittance of the acknowledgment and reissued birth certificate. This Code section provides that “[e]very notary public shall keep a fair register of all his official acts, and shall give a certified copy of his record, or any part thereof, to any person applying for it and paying the legal fees therefor.” The statute requires only that the notary keep a record of all of [the] official acts. The section does not outline how to maintain that record. But Title 1 of the Mississippi Administrative Code, part 5, rule 5.16(B) (Nov. 30, 2011) provides that “[i]f the principal is not personally known to the notary, the notary may require, the signature of the principal . . . .” (Emphasis added).
¶10. Our Mississippi Supreme Court has held that the mere failure to strictly follow form will not render an acknowledgment void. See Estate of Dykes v. Estate of Williams, [Fn omitted] 864 So. 2d 926, 931 (¶20) (Miss. 2003); see also in re Jefferson, No. 11-51958-KMS, 2015 WL 359901, at *5 (Bankr. S.D. Miss. Jan. 26, 2015) (holding that Mississippi Code Annotated section 25-33-5 (Rev. 2010) does not indicate that a notarization not properly recorded in the notary’s log book is void, nor does it indicate that the notarized document is rendered defectively acknowledged due to the recordation failure).
¶11. In accordance with Mississippi caselaw, we find that lack of logbook entry does not deem the acknowledgment void. The chancery court considered all the testimony presented during the trial and followed the statutory procedures set forth in admitting the documents into evidence. Accordingly, we find no error.
A couple of thoughts:
- Paragraph 6 is a reminder that it is awfully tough to reverse a chancellor on admission of evidence in a bench trial, which is understandable because there is no jury to protect from harmful influences.
- The most complicated aspect of this case is the confuseration of spelling between “acknowledgment” and “acknowledgement.” Both are correct; however, the version with no “e” after the “g” is the preferred American usage, and the other is preferred in the UK, like “judgment” (American) and “judgement” (British).