ONE MORE CONSIDERATION OF RECONSIDERATION

February 21, 2013 § 8 Comments

I posted here not too long ago about the vernacular use of “Motion for Reconsideration” as the post-trial motion that is MRCP 59.

It’s pretty widespread. I recently had a four-page post-order motion challenging a temporary ruling of mine. The motion did not invoke any MRCP at all, but every page included the words “reconsideration” or “reconsider” at least once. When I took the bench and announced that I would treat the motion as made per MRCP 59 (which was an indulgence, since I am convinced that MRCP 59 relief lies only as to final judgments; See, Trilogy Communications, Inc. v. Thomas Truck Lease, Inc., 733 So.2d 313, 317-318 (Miss.App. 1998)), the proponent lawyer corrected me and said that it was actually a MRCP 60 motion for relief from judgment. Excuse me.

Judge Southwick back in 1999 addressed the subject in the case of Barber v. Balboa Life, 47 So.2d 863 (Miss.App. 1999), where he stated in footnote 3 at page 869:

“Pursuant to Rule 59 of M.R.C.P., relief following judgment is on motion for a new trial, not on motion to reconsider. Motions to reconsider, as previously known in practice and procedure in Mississippi prior to the adoption of the Mississippi Rules of Civil Procedure, have for all purposes and intent, been abolished and superceded [sic] by the aforementioned Rule 59 of M.R.C.P. It is suggested that the appellant apply Rule 59 of M.R.C.P. in the future under similar circumstances.”

That was 14 years ago. The footnote apparently didn’t have much impact.

I think the main reason most lawyers ask for reconsideration rather than rehearing, as the rule states, is that they absolutely do not want a rehearing. I mean, who really wants to retry what one has already tried? What they want the judge to do is take another look at the facts and/or the law and render a different result. That’s what rehearing has always looked like in chancery where the fact-finder and the judge of the law are one and the same. When the trial is over the fact-finder is not scattered to the far reaches of the county, as is the case with a jury. The fact-finder is right there in in the courthouse where she rendered the judgment in the first place. And she just might realize when confronted with the motion that a different outcome might be more equitable.

But the rule expressly says “rehearing.”

We judges are supposed to look past the form to the substance. When you use confusing language and do not invoke the proper rule, at best you will confuse the judge. At worst, you may find you’ve messed up your record for appeal.

YOU MIGHT WANT TO RECONSIDER YOUR MRCP 59 MOTIONS

February 7, 2013 § 1 Comment

Judge Griffis tells of a time that he filed a “Motion to Reconsider” in federal court after a judgment that he took issue with had been entered. Judge Lee, in his ruling, devoted the first page or two to pointing out that there is no such motion.

When I heard the story, I took exception and pointed out that even under our pre-MRCP practice there was a motion to reconsider, and that the MRCP even continues our pre-rules practice. I added that lawyers even today file motions to “reconsider.” 

Well, I was wrong. Sort of.

MRCP 59 says that a new trial may be granted ” … in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.”

That’s rehearing, not reconsideration.    

To discover the reasons for which rehearings were granted in pre-rules suits in equity, I consulted Griffith, Mississippi Chancery Practice, 2d Ed., 1950, which is the bible of pre-rules practice. Under that ancient practice, all the business of the court was conducted during the terms. All judgments became final on the last day of the term, unless the judge entered an order during the term that set a matter for hearing on a day outside the term (“in vacation”), and orders and decrees could not be altered or amended by the chancellor after the term ended except for some very limited circumstances.

During the term, all decrees and orders issued by the chancellor, even if filed, were considered to be “in the bosom of the court,” and could be changed, altered, withdrawn or vacated by the court at any time up to the close of the term, either on its own motion, or on motion of any party to the suit. The request to the court during the term was a “motion for rehearing,” and some of the bases mentioned by Griffith are: on the court’s on motion to vacate or modify its decree; reargument to point out an overlooked point of law; urging a different result based on something in evidence that the court failed to mention; and newly-discovered evidence (now an MRCP 60 matter).

So “the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi” include not merely a naked request for a new trial, but also a request for the chancellor to go back and study the evidence and the law again, to see whether perhaps a different result would have been reached. The judge could then, during the term, alter the decree or order, or withdraw it and direct a new trial. 

That smells a lot like both reconsideration on the one hand, and rehearing on the other.  

Even today in chancery court, lawyers may know under the rules that they are asking for rehearing, but they know, too, that they are asking for reconsideration. Out of curiosity, I asked my staff attorney to pull up the R59 motions that had been filed in the preceding year. Of the dozens filed, only a couple were styled or even asked for “rehearing.” Nearly every one was styled “Motion for Reconsideration,” or asked for reconsideration. That’s reconsideration, not rehearing.

Thus, I was sort of right, and sort of wrong in response to Judge Griffis. Right in the sense that the common usage is to call a R59 motion a request for reconsideration, and to ask for reconsideration. Wrong because the rule and pre-rule practice call for rehearing.

It’s not a big deal because the MSSC said many years ago after the MRCP went into effect that judges are to look to the substance of the motion, and not the form, and MRCP 8(f) mandates that pleadings be construed so as to do “substantial justice.” Thus, what you call the motion, and whether you ask for rehearing or reconsideration, is less important than clearly invoking MRCP 59.

Most “Motions for Reconsideration” are just that. They ask the court, “Please, take a look at this one more time and, please, change your mind.” That’s not in keeping with the rehearing language of R59, but it definitely captures what the pre-rules practice was. As the COA said in Brown v. Weatherspoon, which is a R60 case, but the principle is the same, “Finality should yield to fairness.”

Don’t worry too much about getting caught with your proverbial pants down in an appeal because you called your R59 motion one for reconsideration, rather than rehearing. It appears that reconsideration is the vogue word for our appellate judges, too … 

  • Check this out from the COA decision in Estate of Ristroph v. Ristroph, decided in January, 2013: “John then filed a motion to reconsider under Mississippi Rule of Civil Procedure 59. While awaiting the chancellor’s decision on John’s Rule 59 motion, Paul filed a motion for summary judgment with respect to the other alleged inter vivos gifts, contending these claims were also time-barred under section 15-1-49. The chancellor denied John’s motion to reconsider the timeliness of his petition to set aside the warranty deed, and John appealed the denial to the Mississippi Supreme Court.”
  • And this from the COA in Rodgers v. Moore, et al., decided in November, 2012: “According to the briefs, plaintiffs filed a motion to reconsider the dismissal with the chancery court. The chancery court entered an order on March 8, 2007, denying the motion to reconsider.”

I am sure there are more, but you get the picture.

PROTECTING YOUR ATTORNEY’S FEES AWARD IN A DIVORCE CASE

April 9, 2012 § 5 Comments

When you have worked hard on a case and prevailed, you’d like to be adequately compensated. You put on your proof of attorney’s fees and the judge makes a handsome award. Only problem is, the other side appeals and the COA tosses out your award, much to your chagrin. How should you have bulletproofed that award?

In the case of Alexander v. Alexander, decided March 27, 2012, the chancellor had awarded Amanda Alexander a judgment for nearly $32,000 in attorney’s fees in a divorce action against her husband, Khari. The COA reversed the special chancellor’s decision for failure of to make any findings of inability to pay or about the reasonableness of the request. Here’s what the opinion said on the point:

“An award of attorney[’s] fees is a matter largely within the sound discretion of the chancellor.” Dickerson v. Dickerson, 34 So. 3d 637, 648 (¶43) (Miss. Ct. App. 2010) (citing Smith v. Smith, 614 So. 2d 394, 398 (Miss. 1993). “Attorney[’s] fees should only be awarded in an amount that compensates for services rendered.” Id. at (¶44) (citing McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982)). The factors to be analyzed in determining whether to award attorney’s fees include: (1) “the relative financial ability of the parties;” (2) “the skill and standing of the attorney employed,” (3) the novelty and difficulty of issues in the case, (4) the responsibility required in managing the case, (5) “the time and labor required,” (6) “the usual and customary charge in the community,” and (7) whether the attorney was precluded from undertaking other employment by accepting the case. McKee, 418 So. 2d at 767.

¶15. The testimony showed Khari earned approximately $90,000 a year; however, Khari did not file a financial statement pursuant to Uniform Chancery Court Rule 8.05. Amanda asserts that her inability to pay her attorney’s fees was proven because the chancellor found her household expenses exceeded her income. The chancellor made no findings of fact on the issue of her inability to pay or Khari’s ability to pay. An itemized bill from Amanda’s attorney is included in the record; however, the chancellor did not examine the reasonableness of the fees. Before attorney’s fees are awarded, the chancellor must determine if the fees were fair, reasonable, and necessary. Dickerson, 34 So. 3d at 648 (¶44) (citing McKee, 418 So. 2d at 767). Since the chancellor failed to make findings pursuant to the McKee factors, we also reverse and remand on this issue.

In a divorce case, the party seeking an award of attorney’s fees must prove inability to pay. Deen v. Deen, 856 So.2d 736, 739 (Miss.App. 2003); Duncan v. Duncan, 915 So.2d 1124, 1128 (Miss.App. 2005); Sullivan v. Sullivan, 43 So.3d 536, 541 (Miss. App. 2010). Ability of the opposing party to pay must also be considered. Sarver v. Sarver, 687 So.2d 749, 756 (Miss. 1997).

Interestingly, the COA decision had already reversed and set aside the divorce in Alexander for failure to prove grounds before it addressed the award of attorney’s fees. There is no mention of the effect of that reversal on the fee award.

So what could counsel here have done to protect the attorney’s fees? Here are a few suggestions:

  • It’s axiomatic that if you don’t put on the proper proof, the chancellor will not have the basis to make an adequate ruling. Print out the McKee factors and address every single one of them in your testimony. Don’t skip or skimp on anything! There is case law to the effect that, even if the chancellor never mentions McKee, he will presumed to have considered the factors IF there is evidence in the record that supports the award.
  • Make sure you have adequate time records or other documentation in support of your testimony as to time spent, expenses, work done, and put your records into evidence. Here is a link to a helpful post on what you need to prove to get that award of attorney’s fees.
  • If you feel that the chancellor has not made sufficient findings, file a Rule 59 motion and ask the judge to supplement his findings. Better yet, provide him or her with proposed findings of fact and conclusions of law on the point that address every applicable McKee factor.

When you have worked hard on a case, you want and deserve to be paid. Sometimes your client won’t be able to pay you, and your only realistic option is to look to the other party. Don’t leave it to chance. Make a bulletproof record.

HOW TO WASTE A TRIP TO THE COA

March 21, 2012 § 3 Comments

We’ve talked here before about the futility of filing an appeal from a judgment that disposes of fewer than all of the issues that were pled and tried, and does not include an MRCP 54(b) certification. 

The latest manifestation of the principle appeared in the COA case of Williams v. Claiborne County School District, et al., decided February 21, 2012. In that case, the school district complained in its cross-appeal that the trial judge erred by not granting it the $120,000 in damages it had asked for in its pleadings. Indeed, the chancellor did not even address the issue of damages.

Oops. On its own initiative (after having been alerted by the cross-appeal), the COA dismissed both the appeal and the cross-appeal because the judgment disposed of fewer than all the issues, and did not include an MRCP 54(b) certification by the judge, meaning that it was not a final, appealable judgment.

Another wasted trip to the COA. Think of those long, lonesome, solitary (albeit billable) hours working on briefs and record excerpts, on reply and rebuttal briefs, on research. Think of what the clients will say when they get the bills for all that time spent to produce nothing but a return to the starting line. Ouch.

As I’ve said before, if you feel that the judge has not addressed an issue so that you don’t have a final judgment, or if you’re in doubt about it, file a timely MRCP 59 or 60 motion and raise the point so that the judge can either (a) address the missing issue, or (b) schedule a trial on the missing point, or (c) amend the judgment to add a 54(b) certification.

MAKING YOUR UNCONTESTED DIVORCE BULLETPROOF

January 30, 2012 § 1 Comment

We’ve talked here before about whether you should make a record when you present an uncontested divorce.

In Luse v. Luse, 992 So.2d 659, 661 (Miss. App. 2008), the COA held that an appellant who had failed to answer, defend or otherwise appear in the case could not raise for the first time on appeal issues about the sufficiency of the chancellor’s findings.

So what happens when the defaulted party does appear via a timely motion under MRCP 59, say, and asks the chancellor to set aside the judgment because she failed to make the required findings of fact under Ferguson, or Armstrong, or any of the other required checklists of factors? That’s what happened in the case of Lee v. Lee in the chancery court of Desoto County. Corey Lee showed up late for his divorce trial, popping in just as the chancellor was in the middle of his opinion dividing the marital estate, awarding custody, and assessing child support. Corey enlisted a lawyer who filed a timely MRCP 59 motion.

In his motion, Corey challenged the judge’s ruling on the basis that it did not address the Ferguson factors for equitable distribution. The judgment did state that it was based on consideration of the Ferguson factors, but did not spell out the evidence relied on as to each applicable factor as required under Sandlin v. Sandlin, 699 So.2d 1198, 1204 (Miss. 1997).

On appeal the COA affirmed, citing Luse.

The Supreme Court granted cert, and in an opinion rendered January 26, 2012, in Lee v. Lee, Justice Dickinson said for the court:

¶7. A divorce judgment entered when a party fails to appear is “a special kind of default judgment.” [Mayoza v. Mayoza, 526 So.2d 547, 548 (Miss. 1988)]. And to obtain relief from such judgments, absent parties are required to raise the issues in post-trial motions under Rules 52, 59, or 60 of the Mississippi Rules of Civil Procedure. [Mayoza, 548-49.] Although Corey filed a Rule 59 motion, the Court of Appeals held that the motion did not address the equitable-distribution issue; and, therefore, the issue was procedurally barred.

¶8. In its holding, the Court of Appeals relied on Luse v. Luse, in which, John Luse neither answered his wife’s complaint for divorce nor appeared at the divorce hearing. The chancellor granted John’s wife a divorce and awarded her ownership of marital property. John never filed a timely post-trial motion challenging the property division, so he first raised the issue on appeal, and the Court of Appeals properly held that John’s claim was procedurally barred.

¶9. But unlike John Luse, Corey Lee raised the issue before the chancellor. In his Rule 59 motion, Corey argued that the division of martial property was inequitable. At the hearing on the motion, Corey’s attorney specifically argued that the chancellor had failed to make findings of fact and conclusions of law, as required by Ferguson. Therefore, Corey is not procedurally barred from raising this issue on appeal.

* * *

¶13. By failing to appear at the hearing, Corey forfeited his right to present evidence and prosecute his divorce complaint. But he did not forfeit the right to challenge the sufficiency of the evidence or the judgment. And whether absent or present at the trial, the appropriate time to challenge a judgment is after it has been entered. Corey did so in his Rule 59 motion and at the hearing following it. The fact that Corey failed to attend the divorce trial does not relieve the chancellor of his duty to base his decision on the evidence, regardless of by whom presented, nor did it nullify this Court’s mandate in Ferguson.

The decision reversed the COA and the chancellor, setting aside the divorce.

So how do you avoid the same trap the next time you present an uncontested divorce? My suggestion is that you make a point of putting on proof of each factor, and prepare proposed findings of fact and conclusions of fact, incorporating them in the judgment you hand to the chancellor at the conclusion of the hearing. Make specific findings as to each checklist factor that applies in your case. If you are asking for equitable distribution, address the Ferguson factors. For custody, address the Albright factors. For alimony, address Armstrong. And so on through as many as apply in your case. You know in advance (or you should know) what your client’s testimony will be on each point, so simply wrap it up into a neat package for the judge. In the alternative, you lazy lawyers can appear and just put on the proof and ask the chancellor to do it. If the chancellor is in a benevolent mood, he or she might do it for you. Or you may be dispatched to do it yourself and come back another time.

NEWLY DISCOVERED EVIDENCE, NOT NEWLY MANUFACTURED EVIDENCE

December 19, 2011 § Leave a comment

MRCP 60(b)(3) provides that a court may grant relief from judgment based on “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).”

The Mississippi Supreme Court in the case of Moore v. Jacobs, 752 So.2d 1013, 1017 (Miss. 1999), pointed out that “A motion for a new trial based on new evidence is an extraordinary motion, and the requirements of the rule must be strictly met.” The decision set out five criteria that must me met in order for the trial court to grant relief:

  1. The evidence was discovered following the trial;
  2. There is proof, or it may be inferred, that the movant exercised due diligence to discover the new evidence;
  3. The evidence is not merely cumulative or impeachment;
  4. The evidence is material;
  5. The evidence is such that a new trial would probably produce a new result.

“A party asking for a new trial on the ground of newly discovered evidence must satisfy the [trial] court that the evidence has come to his knowledge since the trial, and that it was not owing to a want of diligence on his part that it was not discovered sooner.” Sullivan v. Heal, 571 So.2d 278, 281 (Miss. 1990). “[F]acts implying reasonable diligence must be proved by the movant.” NLRB v. Decker & Sons, 569 F.2d 357, 363-4 (5th Cir 1978).

The decision of the chancellor to deny such a motion may only be reversed if the appellate court finds abuse of discretion. United Serv. Auto Assoc. v. Lisanby, 47 So.3d 1172, 1176 (Miss. 2010).

All of the authority cited above is extracted from Judge Griffis’s opinion in the COA case of Smullins v. Smullins, decided on rehearing November 29, 2011.

Shellie and Bradley Smullins battled over a divorce and custody of their son Devinn, who was age seven at the time. Neither party was an all-star parent. There was substantial evidence that each of them engaged in behaviors that called their parenting skills into question.

On August 8, 2008, following the trial, the chancellor issued a fifty-page opinion that included a detailed Albright analysis. He awarded Bradley sole physical custody of Devinn and granted the parties joint legal custody.

On August 9, 2008, Shellie and Devinn submitted to a DNA test, and on August 12, 2008, Wendle Hunt did the same. The test result established a 99.999996% probability that Hunt was the natural father.

On September 6, 2008, the chancellor entered the judgment of divorce, which was approved as to form by Shellie’s attorney.

On September 26, 2008, Shellie filed a motion for a new trial (reconsideration under MRCP 59) on the basis of newly discovered evidence. The motion included the following assertions: Devinn was conceived prior to the parties’ marriage, and they knew before the marriage that it was possible that Bradley was not the father; the DNA test shows that Wendle Hunt is the natural father; Wendle Hunt is ready, willing and able to act as the child’s father; and Wendle is “disturbed to learn that his son is being raised by a second generation alcoholic drug addict.”

At hearing, Shellie testified that she always knew that there was a possibility that Bradley was not Devinn’s natural father. She had offered a DNA test before the marriage, but Bradley had refused. Wendle did not know that he had fathered a child by Shellie.

The chancellor overruled the motion, and said:

“The new evidence regarding the paternity of [Devinn] was not discovered until after the trial but was known to [Shellie] prior to entry of the judgment. [MRCP] 58 states that, “a judgment shall be effective only when entered.” Therefore, the paternity of Devinn Wayne Smullins was known prior to the divorce being final but was not disclosed to this court.

Due diligence on the part of the movant to discover the new evidence is required. ‘A party can not fail to investigate important information and then attempt to assert that information as new evidence at the end of the trial.’ [citing Goode v. Synergy Corp., 852 So.2d 661, 664 (¶12) (Miss. Ct. App. 2003) …]”

The judge found that Shellie had failed to exercise due diligence and overruled her motion for reconsideration.

The COA affirmed, saying at ¶35:

Just like the chancellor, we fail to see how the paternity test results can be newly discovered evidence if she knew of the possibility of that very fact prior to the commencement of this legal action. Had Shellie alleged that, upon information and belief, Bradley was not Devinn’s biological father, then that very issue could have [been] tried to the chancellor and considered in the final judgment. But she failed to do so.

Another avenue that Shellie could have taken to try to avoid running into this brick wall would have been to file a motion to reopen her case before the judge entered the judgment. It’s still unlikely she would have been granted any relief given what she testified that she knew, but that would have given her another shot.

So here is an important distinction to draw from this case: Although it is true that the DNA test results did not exist until after the trial, Shellie and Bradley both knew, or had strong reason to believe, that Bradley was not the father. Thus, the DNA results were mere verification of evidence that the parties knew of and could have developed at trial.

Genuine cases of newly discovered evidence that come within the rule are indeed rare. When the situation does arise, however, you have to analyze it within the express requirements of the rule.

STAY OF EXECUTION

April 6, 2011 § 5 Comments

In a divorce the judge grants your client a judgment in the amount of $115,000 for her interest in a marital-asset business.  The judge orders the husband to pay the judgment at the rate of $500 a month.  Can you execute on the judgment even if the husband is making the payments as ordered by the court?

The answer is Yes, you may execute regardless of his payment history.

In the case of Jenkins v. Jenkins, handed down March 29, 2011, the COA cited Peeples v. Yarbrough, 475 So.2d 1154, 1158-59 (Miss. 1985), and reversed a chancellor’s ruling that execution on the judgment was stayed as long as the defendant made the payments as ordered.  The COA held that the chancellor has no authority to stay execution on the judgment, although the judge does have the authority to order and enforce a payment schedule.

So what to do if the chancellor does include a stay with entry of the judgment?  I would suggest that you file a timely MRCP 59 motion to reconsider citing Jenkins and Peeples.  If you don’t, you run the risk of running afoul of your trial judge, even if his or her judgment was contrary to the law.

YET ANOTHER REASON TO TAKE EXTRA CARE WITH 8.05’S

October 14, 2010 § 4 Comments

In the case of Trim v. Trim, 33 So.3d 471 (Miss. 2010), the Mississippi Supreme Court held that “the intentional filing of a substantially false Rule 8.05 statement is misconduct that rises above mere nondisclosure of material facts to an adverse party,” and constitutes fraud upon the court.

So what is the significance of the Trim case for everyday practitioners?

Let’s say that your client isn’t deliriously happy with the outcome of her equitable distribution case, but she accepts it without an appeal.  Ten months later she comes in to your office mad as a hornet with sheaves of paperwork that prove conclusively that her ex substantially understated on his 8.05 the value of financial assets that he controlled, and the gain to your client could be in the hundreds of thousands of dollars.  Aha!  You think, we have the sorry so-and-so right by the [indelicate word deleted]!

But wait.  How are you going to get this before the court?  MRCP Rule 59 relief expired 10 days after the judgment was entered, and the appeal time ran 30 days after entry.  MRCP Rule 60 actions to set aside a judgment for fraud have to be brought within six months of the date of the judgment.   

That’s where Trim comes in.  By finding substantial misrepresentation on the 8.05 to be a fraud on the court, as opposed to fraud on the opposing party, the Supreme Court essentially ruled that there is no time limit to bringing an action to aside an action based on 8.05 fraud.  That’s because MRCP Rule 60 expressly states:  “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.”

Trim has ramifications for lawyers in Chancery.  If you are in the habit of accepting your client’s 8.05 at face value without going over it with him or her, and without questioning behind it, you may be leaving your client open to an action to set aside that divorce judgment you thought you had laid to rest long ago.  The client may well question why you never went over the statement with him and counseled him about what to include and what not to include.  “My lawyer never told me that I had to list those three securities accounts; in fact, he never talked with me at all about what to include on the form.” 

In case you think this is the kind of thing that happens to somebody else somewhere else, think again.  Only this year, I set aside a divorce that was nearly two years old for substantial misrepresentation of financial assets that amounted to a fraud on the court.  It can happen to you.

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