Four Judges, and a Remand Makes Five

March 27, 2017 § 2 Comments

When Jon A. Swartzfager and Thomas R. Saul had a disagreement over the sale of some land, Saul filed suit in chancery court for breach of contract, equitable estoppel, and promissory estoppel.

The chancellor of the district recused, and the MSSC appointed Special Chancellor #1. That judge granted partial summary judgment and conducted some proceedings, in one of which he declared a written instrument to be a valid, enforceable contract. Before he got to a trial, however, Chancellor #2 unfortunately died.

Enter Chancellor #3. This time, the judge did set the case for trial, and it was heard on November 29, 2012, and January 25 and April 8, 2013. Before Chancellor #3 could render a final judgment, he, too, died.

The MSSC appointed Chancellor #4, who huddled with the attorneys and entered an order memorializing the parties’ agreement that he could review the existing record and render a decision. Chancellor #4 did just that, finding that Swartzfager had breached the contract, and awarding damages of more than $200,000, which included $79,098.81 in prejudgment interest. Swartzfager appealed.

In the case of Swartzfager v. Saul, decided February 16, 2017, the MSSC reversed in part and remanded. Essentially, the court affirmed everything but the award of prejudgment interest, and remanded for the chancellor to recompute damages without the prejudgment interest.

Only thing is, Chancellor #4 is now retired and is no longer sitting as a senior or special judge, so he will not be available to  deal with the case on remand.

Enter Chancellor #5. Stay tuned.

A few interesting points from the decision by Justice Maxwell:

  • Swartzfager argued that the MSSC should review the case de novo because Chancellor #4 based his decision on testimony before previously-assigned chancellors; he also urged that the previous chancellors’ findings should be given no deference. The court rejected that claim at ¶18 on the principle of judicial estoppel. The parties had agreed to follow that procedure, and he is precluded from taking a contrary position at a later stage of the case.
  • Another point pressed unsuccessfully by Swartzfager was that it was error for the chancellor to adopt Saul’s findings of fact and conclusions of law verbatim. The court disagreed, pointing out that the judge made his own findings, including adopting some findings of previous chancellors. I might add that even if the chancellor had wholly adopted Saul’s findings, it was not error for him to do so. You can read a post about the subject here.
  • The reversal on the issue of prejudgment interest came about because Saul had not included a prayer for that relief in his complaint, and so he was precluded from getting that relief per MRCP 8. The court noted that, since the reversal was based on the state of the pleadings, and not on the merits, it did not need to address whether the damages were liquidated, or if there were bad faith, which are two of the bases necessary to support an award of prejudgment interest.
  • There’s a lot of substance in this case that you might find useful, including: what it takes for a writing to be a contract; equitable estoppel; emotional distress damages arising out of a contract dispute; and assessment of attorney’s fees in absence of punitive damages.


September 12, 2011 § 2 Comments

Riff Raff:  I ask for nothing, Master!

Frank:  And you shall receive it, IN ABUNDANCE!

— From The Rocky Horror Picture Show

In chancery court, be careful what you ask for — or don’t ask for. What and how you plead can make a big difference in your outcome.

Take the case of Caudill v. Caudill, 811 So.2d 407, 408-9 (Miss. App. 2001), in which Douglas, acting pro se, filed a response to a contempt petition raising his inability to pay as a defense. When Douglas tried to argue at trial that his pleading was sufficient to support a reduction in separate maintenance, the chancellor rejected his claim on the basis that “there is no petition to relieve you of paying …” and that he “needed to have filed a counterclaim asking for affirmative relief.”  Douglas appealed, pointing out that pro se litigants are held to a less stringent standard of pleading than are lawyers. McFadden v. State, 580 So.2d 1210, 1214 (Miss. 1991). Citing West v. Combs, 642 So.2d 917 (Miss. 1994), Douglas argued that the trial judge should have looked to the substance of his pleading rather than its form.

The COA rejected Douglas’s argument and upheld the chancellor:

“While it is true that a pro se litigant may not be held to the same standard in drafting his pleadings as an attorney, the chancellor is not held to the task of a mind reader. If the chancellor is not able to determine a request for relief from the pleadings, he may not grant such relief. Douglas did not make a specific request for a reduction in separate maintenance and did not amend his pleadings to include such a request. The chancellor did not abuse his discretion or commit manifest error in refusing to consider Douglas’s pro se answer as a counterclaim for a reduction in his obligation.”


  1. If you don’t include a request for specific relief in your pleadings, don’t expect to get it.
  2. Chancellors (thankfully) are not expected by the appellate courts to be mind readers — at least in the realm of pleadings.
  3. This case involved a pro se litigant; you, as a lawyer, are held to a higher standard.
  4. If you do overlook pleading for certain relief, try putting on proof on the point anyway, and, if you do put in the proof you need, ask the court for leave to amend the pleadings and conform the pleadings to the proof. If the other lawyer blocks your attempts, as for leave to amend per MRCP 15.
  5. If you ask for nothing, you shall receive nothing — in abundance.

In the recent case of Knighten v. Hooper, decided September 6, 2011, the COA upheld the chancellor’s decision not to award the child dependency tax exemption on the basis that the issue was not raised in the pleadings. Both parties had, at the court’s behest, presented proposed findings of fact and conclusions of law, and Knighten had inserted the issue for the first time in his submission. There had been no proof on the point at trial.  The COA held at ¶ 16:

“After reviewing the pleadings and trial transcript, we find that Knighten did not properly raise the issue through his pleadings or evidence presented at trial. See MRCP 8, 15. As a result, Hooper was not given notice and an opportunity to respond. The issue was not subjected to the adversarial process and, as such, was not properly before the chancellor for consideration. Therefore, the chancellor did not err when she refused to address the issue in her judgment.”

While we are on the subject, keep in mind that once a pre-trial order is entered, it controls and determines the issues and relief, no matter what was in the original pleadings. In Singley v. Singley, 846 So.2d 1004 (Miss. 2002), the trial judge allowed in proof supportng a claim for alimony over objection on the basis that, although alimony had been omitted from the pre-trial order, it had been pled for in the original pleadings. The COA reversed, and the MSSC, in upholding the COA, stated, at page 1013:

“”The pre-trial statement approved by order of the chancellor controls. It is clear and concise, easily understood and substantially complies with M.R.C.P. 16. We hold that the chancellor cannot modify the statement unless it is done by mutual agreement with the parties as was initially done, or the chancellor finds manifest injustice, neither of which occurred. The Court of Appeals is affirmed on this issue.”

As it is true that you may not receive something for which you have not pled, the converse is true: that you may receive something for which you pled, but did not exactly foresee.

Take, for instance, the case of Rose v. Upshaw, handed down by the COA on August 30, 2011. In that case, Rose registered a Louisiana judgment in Mississippi, and asked the chancery court to severly restrict Upshaw’s visitation under the Louisina judgment. Instead, the chancellor found that the visitation provisions of the Louisiana judgment were not working, and modified the visitation in Upshaw’s favor. Rose appealed, contending that it was improper for the chancellor to grant any modification relief other than the restricted visitation he had prayed for. The COA disagreed:

Rose essentially argues, since he was the one to plead modification, the chancellor could only modify the visitation order to meet Rose’s specific request that Upshaw’s visitation be restricted. But, procedurally, the chancellor was not limited to granting all-or-nothing relief — either enforcement of the unmodified Louisiana order or restriction of Upshaw’s visitation rights. “On visitation issues, as with other issues concerning children, the chancery court enjoys a large amount of discretion in making its determination of what is in the nest interest of the child.”  Haddon v. Haddon, 806 So.2d 1017, 1020 (¶ 12) (Miss. 2000)(citing Harrell v. Harrell, 231 So.2d 793, 797 (Miss. 1970).

So there you have it. Two general principles of pleading that you need to bear in mind:

  1. If your pleading does not include a clear request for relief that a chancellor can comprehend, you can’t expect to receive that relief; and
  2. Be careful of the issues you introduce into the proceedings because that whipsaw effect can sting.

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