Economics of the Do-It-Yourself Lawsuit

April 9, 2015 § 1 Comment

Nellie Pruitt died intestate in 1974. Her 24.12 acres of land was surveyed by Lambert, divided into five equal tracts, and deeded to Nellie’s five daughters, each of whom executed deeds that were recorded in the land records of Tishomingo County. In 2007, one of the daughters had the property surveyed by Guice, who discovered several errors in the deed descriptions. Freddie Dobbs, the heir of one of the original sisters, disagreed that there was any error in the descriptions, and obtained his own survey from Ledgewood that he claimed to support his position. Acting on his belief that the original description was correct, Dobbs bulldozed some trees, cleared land, and tore down a fence.

The other landowners (Crawford, et al.) filed suit against Dobbs in chancery court to reform the deeds, remove clouds, and quiet and confirm title. The complaint also sought damages, injunctive relief, expert witness fees, and attorney’s fees.

Dobbs represented himself.

Crawford filed a motion for partial summary judgment, and a hearing was held in which the judge apparently permitted testimony. Crawford put into evidence Guice’s survey with his affidavit, a deraignment of title, and the affidavit of the sole surviving Pruitt sister that the intent of the original partition was that each sister would receive an equal plot.

In response, Dobbs testified (apparently without objection) that Ledgewood had told him that the property lines were correct. He also testified (apparently without objection) that his mother had told him that she believed she owned more of her mother’s property, but did not want a family feud. He did not offer Ledgewood’s survey into evidence, and he offered no counteraffidavits, as required in R56(e).

The chancellor granted partial summary judgment reforming the deeds and quieting and confirming title according to the Guice survey.

A hearing was then held on the issues of injunctive relief, damages, court costs, expert witness fees, and attorney fees. Crawford et al. were represented by counsel. Dobbs, again, appeared pro se.

The Crawford plaintiffs put on detailed testimony and introduced documentary evidence to support their claims. In his defense, Dobbs again asserted that he had relied on Ledgewood. In ruling (predictably) for the plaintiffs, the chancellor observed that:

“Mr. Ledgewood did not testify and his survey was not offered nor admitted into evidence. There is no evidence whatsoever to support the explanation of the Defendant, Freddie Dobbs.”

The chancellor entered a judgment against Dobbs for nominal and actual damages totaling $17,746.20, for attorney’s fees in the sum of $13,000, and for expert witness fees in the amount of $3,250, for a grand total of $33,996.20. Each judgment was to bear interest at the rate of 8%.

Dobbs appealed, yet again representing himself.

On March 31, 2015, the COA handed down its decision in Dobbs v. Crawford, et al., in which Judge Irving observed for the unanimous court (Judge James not participating) that Dobbs ” … lists various grievances, but offers little argument and law.” Dobbs’ cornerstone contention was that, at the summary judgment hearing, he was “waiting for his chance to tell his side,” and that he did not know he was required to provide counteraffidavits with expert testimony. In other words, his lawyer (himself) was ignorant of the law. As you can guess, the COA did not buy that or any of his other contentions, and affirmed the trial court.

In case you’re not keeping count of Dobbs’ success as his own lawyer: Strike One, partial summary judgment hearing; Strike Two, damages hearing; and Strike Three, appeal. He’s Out.

So, let’s assess the wreckage:

  • I am going to assume that a moderately experienced attorney would have settled this case in its earliest stages (some other defendants did exactly that) for far less than was ultimately assessed against Dobbs.
  • No doubt an early settlement would have drastically reduced attorney’s fees. I note that there were two attorneys in the case, one of whom had fees of $10,000, and the other $3,000. My guess is that the former was the trial attorney, and the latter was the lawyer who did the title work and perhaps filed the initial pleadings in the unsuccessful hope that Dobbs would come to terms. If that’s so, then Dobbs cost himself $10,000 at least right there.
  • Had he retained counsel early enough, that attorney might have been able to dissuade Dobbs from doing the bulldozer work on the plaintiffs’ property that ultimately cost him $17,746.20.
  • If he had an attorney at the summary judgment proceeding, the Ledgewood survey (if it really existed) and some other supportive evidence would have been introduced that could have averted summary judgment and may have propelled the parties into settlement negotiations that would have saved Dobbs some serious money.
  • I am willing to bet that Dobbs’ attorney’s fees would have been in the neighborhood of a few hundred dollars had he hired a lawyer when he got the Ledgewood survey, and a few thousand afterward. At any event, his total fees and judgment with assistance of a lawyer would not have approached $33,000, in my opinion.

“Penny wise and pound foolish” is one way to put it.

AN MRCP 56 CAUTION

March 14, 2012 § Leave a comment

The first thing you should do when confronted with a motion for summary judgment is to read the rule. I know, I know, you’re busy and it takes time, but for Pete’s sake, it might just save you some trouble and embarassment, and it might save your malpractice carrier some $$$.

In the COA case of Estate of Farr v. Wirick, decided February 21, 2112, the trial judge excluded from evidence two affidavits that were submitted on the day of hearing. The COA ruled that ” … the chancery court properly excluded the cerificates under [MRCP] Rule 56(c), which requires that affidavits in opposition to a motion for summary judgment must be served ‘prior to the day of the hearing’.”

You have at least ten days’ notice of a motion for summary judgment per MRCP 56(c), and you must file your counteraffidavits prior to the day of the hearing.

So what do you do if you can’t scrape together counteraffidvits in time? MRCP 56(f) allows the court to grant additional time to obtain them, or to grant a continuance to do additional discovery, or to “make such order as is just.” The court can also simply refuse the application for summary judgment.

You can also ask the judge, per MRCP 56(e) for leave to supplement your affidavits or to submit further affidavits.

And don’t overlook this crucial language at MRCP 56(e):

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. [Emphasis added]

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