Tuesday, January 16, 2018

Adoption with No Termination of Parental Rights

Last Thursday, the Mississippi Supreme Court decided In the Matter of the Adoption of the Child Described in the Petition: D.D.H., Patrick Latrell Gray and Felicia Hannah Dutch.  Patrick Latrell Grayand Felecia Hannah Dotch petitioned the Attala County Chancery  Court to allow Gray to adopt D.D.H. without terminating Dotch’s parental rights. Dortch gave birth to a daughter, D.D.H.,  in 2003.  She had been in a relationship with Gray and they assumed he was the father.  More than ten years later, he discovered he was not her father but he had acted as her parent throughout her life  – while he and Dortch were in a romantic relation and even after.  The real father is unknown.  Once they realized Gray was not the father, Gray and Dortch petitioned the court to allow Gray to adopt her. The chancellor found that he was constrained by the statutes in doing so and denied the adoption.  The Mississippi Supreme Court reversed finding that such an adoption is not prohibited by Mississippi law. Since Gray is married, the spouse needed to be joined.  The Court found  the “otherwise specifically stated” language of Section 93-17-13(2) allows Gray to adopt the child and allows Dotch to keep her parental rights. The holding was narrowly tailored to the following facts: (1) Gray has acted in loco parentis; (2) he is seeking to adopt and would be adopting as the father; (3) he is seeking to raise the child in concert with Dotch, the natural mother; (4) his spouse will be joined to the proceeding, and (5) there are no third parties to the adoption seeking to keep parental rights.

Tuesday, January 9, 2018

Proving a Negative

It is a general rule of evidence, noticed by the elementary writers upon that subject (1 Greenl. Ev. §§ 79) that `where the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party.' When a negative is averred in pleading, or plaintiff's case depends upon the establishment of a negative, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative; but when the opposite party must, from the nature of the case, himself be in possession of full and plenary proof to disprove the negative averment, and the other party is not in possession of such proof, then it is manifestly just and reasonable that the party which is in possession of the proof should be required to adduce it; or, upon his failure to do so, we must presume it does not exist, which of itself establishes a negative. 285*285 United States v. Denver & Rio Grande Railroad Company, 191 U.S. 84, 24 S.Ct. 33, 48 L.Ed. 106 (1903).

Wednesday, January 3, 2018

Alibi Witness

Yesterday, the Mississippi Court of Appeals decided Smith v. State located here.  The issue in the case is when does the defendant have to disclose an alibi witness?  The Court stated:

“The rule clearly states that the requirement to disclose an alibi witness is triggered
by the prosecution.” Hall v. State, 925 So. 2d 856, 857 (¶4) (Miss. Ct. App. 2005). “Only
after the prosecuting attorney makes a written demand is the defendant then required to provide written notice of his intent to offer a defense of alibi.” Id. (quoting Ford v. State, 862 So. 2d 554, 557 (¶11) (Miss. Ct. App. 2003)). On two prior occasions, we have reversed and remanded when a defendant’s alibi witness was excluded, where the State did not make a written demand under Rule 9.05. See Hall, 925 So. 2d at 857 (¶¶3-5); Ford, 862 So. 2d at 557 (¶¶10-12). The trial court likewise erred here, in denying Smith the opportunity to present his alibi witness. We reverse and remand for a new trial."

The risk of not disclosing a witness creates the issue above.  It is remanded for a new trial but the person is normally in prison while the appeal is pending. 

Tuesday, January 2, 2018

Plaintiff Summary Judgment

Somehow in the legal world, attorneys got the idea that summary judgment was only for defense attorneys.  In recent years, I have been using it as a plaintiff tool on a regular basis.  This is based on experience that the more issues are narrowed down, the less likely it is that a fact-finder can create some rationale denying liability that is not based on the law.  I have used this on to establish liability in a number of cases.  This makes the trial a damages only issue and makes defendant's wanting to offer sympathy testimony largely irrelevant. 

Friday, December 29, 2017

Importance of a Post-Trial Motioin

Absent a renewal of the directed-verdict motion, a request for a peremptory instruction, or a motion for a judgment notwithstanding the verdict (JNOV), an appellant has waived the sufficiency error on appeal. Darnell v. State, 202 So. 3d 281, 285 (¶13) (Miss. Ct. App. 2016). Additionally, “[t]he matter of evidentiary weight is waived by the failure to move for a new trial.” Stewart v. State, 879 So. 2d 1089, 1095 (¶24) (Miss. Ct. App. 2004).

Thursday, December 21, 2017

Recovery of Overpayment When Overturned on Appeal

When payment of financial awards are not stayed pending appeal, repayment may be required.  After alimony was reversed on appeal, a chancellor properly ordered a wife to reimburse her husband for alimony payments received during the period of appeal.  Henderson v. Henderson, 757 So. 2d 285,294 (Miss. 2000). 

Thursday, December 14, 2017

Deposition Exhibits

A few years ago, I was taking a deposition where the opposing party kept putting documents in front of my client asking her to read them.  He essentially was trying to make it sound like she was testifying to certain things as facts instead of reading the documents.  I asked him to attach the items to the deposition as it came up and he refused.  We ended up having to stop the deposition and get the Judge on the phone as a result.  The answer is very straight forward in Rule 30 (f)(2) which provides that:

"(2) Documents and things produced for inspection during the examination of the witness, shall, upon the request of a party, be marked for identification and annexed to the deposition, and may be inspected and copied by any party.  Whenever the person producing materials desires to retain the originals, he may substitute copies of the originals, or afford each party an opportunity to make copies thereof."

After the opposing attorney was tongue lashed by the judge and threatened with sanctions, the deposition ended about ten (10) minutes later because he was so thrown off by the incident.