Monday, April 29, 2013

Too Late to Bring It

Occasionally I see people who want to bring claims after they have already been to Court previously and could have brought the claim then with regard to back child support or something else.  In Mississippi the law is pretty clear that if you don’t bring it the first time, you cannot bring it later.  
Take a look at the two following cases when you get some time.  I have had two separate cases where I have had a contempt action of an opposing party dismissed based on these two cases.  

(a)  Russell v. Russell, 724 So.2d 1061, 1064 Paragraph 17 (Miss. App. 1998) – chancellor abused his discretion in ordering payment of medical bills that could have been brought in earlier proceedings. 

(b)  Clements v. Young, 481 So.2d 263, 270 (Miss.1985).  The Court held that "[i]f there was a problem about medical or dental bills prior to [the earlier contempt proceeding], the matter could have and should have been litigated then. The decree ... is res judicata with respect to all claims that were presented or may reasonably have been presented at that time." Id. 


Friday, April 26, 2013

Value of Life in Wrongful Death

The Supreme Court of Mississippi handed down Laney v. Martin Vance, individually and on behalf of the Wrongful Death Beneficiaries of Mamie Vance Hemphill yesterday.  A link to the opinion is below.   
The case reversed a $1,000,000.00 judgment against Dr. Laney and remanded the matter for a new trial.  The case largely dealt with improper jury instructions and improper comments by the Plaintiff’s attorney in closing.  The main issue the court reversed on was that the value of life is not recoverable in a wrongful death case.  The Court reasoned that Mississippi Code Annotated  §11-1-69(2) prohibits the recovery for the loss of enjoyment of life caused by death in a wrongful death case and by analogy any instruction concerning the “value of life” is therefore reversible error. 
If you read the opinion, the damages that are recoverable as outlined in ¶6 of the opinion appear to encompass the value of a person’s life but you cannot instruct the jury to determine the actual value of a person’s life due to the statutory prohibition.  
From my reading of the opinion, you can legally recover the items that encompass the value of the deceased’s life which include “(1) the present net cash value of the life expectancy of the deceased, (2) the loss of the companionship and society of the decedent,(3) the pain and suffering of the decedent between the time of injury and death, and (4) punitive damages.” McGowan v. Estate of Wright, 524 So. 2d 308, 311 (Miss. 1988) (citing Jesco, Inc. v. Whitehead, 451 So. 2d 706, 710 (Miss. 1984)); Sheffield v. Sheffield, 405 So.2d 1314, 1318 (Miss. 1981); Dickey v. Parham, 331 So. 2d 917, 918-919 (Miss. 1976);Thornton v. Ins. Co. of North America, 287 So. 2d 262, 265 (Miss. 1973); Scott v. K-B Photo Service, Inc., 260 So. 2d 842, 844 (Miss. 1972); Boyd Constr. Co. v. Bilbro, 210 So.2d 637, 643 (Miss. 1968).  However, you cannot ask the jury or instruct the jury to actually award you the value of the person’s life. 
My take is that you cannot legally instruct the jury to do what they are going to do from a practical standpoint anyway.  Anyone have another take on it?

Thursday, April 25, 2013

Modification of Visitation

One area I think more clients and attorneys need to look into is filing for modification of visitation on cases.   I have had several cases where there was not enough to warrant modification of custody which from reading the various appellate opinions in Mississippi is a fairly high standard.   

The standard for modification of visitation is much lower.  In Cox v. Moulds, 490 So.2d 866, 869 (Miss.1986), the Mississippi Supreme Court set the standard for a trial court to follow when confronted with a request to alter a parent's visitation schedule with a minor child.  In Cox, our Supreme Court stated that in order to modify the visitation schedule "[a]ll that need[s][to] be shown is that there is a prior decree providing for reasonable visitation rights which isn't working and that it is in the best interests of the children." Id.

Citing this line of cases, I have been able to argue to expand visitation for several noncustodial parents due to interference with visitation and other actions by the noncustodial parent.  I have typically done this in conjunction with a request for modification of custody so the chancellor has something to hang their hat on if they will not modify custody. 

This is certainly an option to explore in custody litigation which may provide some relief to a party. 

Wednesday, April 24, 2013

Requests for Admissions

Rule 36 of the Mississippi Rules of Civil Procedure allows parties to request that parties admit to certain facts or the authenticity of certain documents.  Pursuant to Rule 36 of the Mississippi Rules of Civil Procedure and the Mississippi Supreme Court’s holding in In Re Marriage of Leverrock & Hamby,  2008-CA-00093-SCT (Dec. 3, 2009),  a matter is admitted unless, within thirty days after service of the request, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or his attorney.  The Court opined at that time that a judge does not have the discretion to deem the matter admitted, because a request is conclusively established upon a party’s failure to answer within thirty days, or such time as the judge has determined appropriate pursuant to Miss. R. Civ. P. 36(b) unless withdrawal or amendment by the Court is granted. 

There are a number of cases floating around on requests for admissions.  Without getting into all the specifics, it appears that if for some reason the deadline slips by, you better file with leave of the court to withdraw the admissible.  If you do not file for leave to withdraw the admissions, you are stuck with them which will allow summary judgment to be granted.  (See Young v. Smith, 67 So.3d 732 (Miss. 2011).  This case needs to be stuck in your research file somewhere.  From my reading of this opinion, if you file to withdraw them, it is discretionary with the Court but the Court should allow you to if you have a legitimate reason for failing to respond.  If you don’t have a good excuse, you are stuck with them. As such, my standard practice for years has been to get responses out signed by the client within ten (10) days of receipt with a copy of the same faxed to opposing counsel that day.  

If a party denies a request, and you later prove the matter, you are entitled to reasonable attorney’s fees and expenses in proving the same.  My experience has been that the best use of these is for the admission of documents.  The requests have to be drafted very narrowly though.  If there is anything that is arguable about the request, the same can be routinely denied safely without having to worry about paying attorney’s fees.   This is extremely helpful in domestic cases where you have large volumes of documents that need to be admitted for evidentiary reasons and likewise in personal injury cases. 


Tuesday, April 23, 2013

Punitives Against Cheap Insurance Company

The article below is pretty interesting.  Insurer was hit with 500M for punitive damages for doctor's malpractice.  Doctor submitted the lowest bid, and there was evidence that doctor was processing patients quickly and cheaply in order to make as much money as possible.  Jury found that there was sufficient evidence to put insurer on notice of the danger of blood borne diseases. 

To me, this opens up potentially a whole new area of litigation for creative plaintiff's attorneys on a general negligence theory of liability.

Monday, April 22, 2013

Can you identify the driver?

Interesting thought occurred to me on a personal injury case.  The scenario typically only happens in Justice Court in Mississippi or General Sessions in Tennessee.  How do you identify the driver in a motor vehicle accident for evidentiary purposes?  The question sounds easy until you think about it.  Typically due to hearsay or other reasons, the accident report is not admissible.  Until you can prove it really was the other person, cannot use any of the opposing parties' statements as an admission under the rules of evidence.  I have seen some defense attorneys do this especially when you are not entitled to discovery in Justice Court or General Sessions.  They will not stipulate it was their client in the accident, object to any evidence by the other party saying it was their client, and not have their client appear in Court.  Contrary to popular belief, there is actually no requirement for either party to appear but the Plaintiff still has to prove their case.

With the evidentiary rules in mind, how do you prove who the driver was?  At some point in the record or as part of your proof in a motor vehicle accident, there is going to have to be some admissible evidence of who the Defendant driver was.  I would advise subpoenaing the opposing party and putting them on the stand first to establish this along with subpoenaing the police officer who made any report on the scene.  You may want the Defendant to state what their driver's license number is so the police officer can use the report for refreshing their memory only to help identify the Defendant.  Additionally, it is good if your client can remember what the person looks like and identify them on the record.  For most any personal injury case or criminal case, the identity of the Defendant is actually an essential element. 

In Circuit Court in either state, this issue would typically be taken care of by depositions, stipulations in a pretrial order, or admitted to in written discovery.  However, be aware you still need to make some kind of proof of this on the record or you have not actually fully proven your case and will have a dismissal granted on a request for directed verdict.   

Friday, April 19, 2013

Cell Phones in Court

I always tell my clients to be sure their cell phone is off or left in their car in any court proceeding.  Judges don't like it and it is very distracting.  Interesting article below.  Cannot say that the judge does not apply the law equally at least.

Thursday, April 18, 2013

Summons by Publication

I have had some recent inquiries by attorneys and clients on the issues of summons by publication.  Frankly, I really don’t like summons by publication and am a little paranoid about doing it absent extreme circumstances.  This is one area of the law I consistently see attorneys fail to follow the law in.  The requirements are strict and I have had a number of orders set aside because opposing counsel has failed to follow the requirements. 

Here is a quick rundown of what all is required.  Summons by publication is a departure from the common law and therefore the rule authorizing substituted service must be strictly construed.  See Section 235 of Griffith’s Mississippi Chancery Practice.  This roughly translates in layman terms to, you mess up one thing, the whole thing is wrong. 

If the requirements have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (¶16) (Miss. Ct. App. 2002) (internal citation omitted).  Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So. 2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759 So. 2d at 1257 (¶33).
In order to do summons by publication, there are a number of things that have to be sworn to in the petition or affidavit filed with the court.  The affidavit or sworn complaint must state the defendant’s post-office address, if known, or swear that it could not be determined after a diligent inquiry. Id. If the postoffice address is listed, the sworn petition or affidavit must further provide the defendant’s street address or that it could not be determined after a diligent inquiry. M.R.C.P. 4(c)(4)(B). And if the plaintiff provides a post-office address, the clerk must mail the defendant (by firstclass mail, postage pre-paid) a copy of the summons and complaint to his post-office address, and note having done so on the general docket. M.R.C.P. 4(c)(4)(C). “

Your best bet, if to go down Rule 4 dealing with publication and swear to each item required one by one.  So the quick checklist of items to look at:

(1)    List current P.O. Box or state that is unknown after diligent search and diligent inquiry

(2)   State whether the person is a resident or nonresident after diligent search and diligent inquiry

(3)   If the person is a resident or nonresident and state that the person has not been found herein after diligent search and diligent inquiry  

(4)   Make sure the words diligent search and diligent inquiry is specifically in there – several cases out there that says order is void without those specific words

(5)   State the current street address of person or state that is unknown after diligent search and diligent inquiry

(6)   State the last known street address of the person or state that it is unknown after diligent search and diligent inquiry

(7)   State the last known Post office address of the person or state that it is unknown after diligent search and inquiry

(8)   Have court clerk mail a copy of complaint with summons to last known address of any kind and record on docket   

Additionally the summons that is run in the paper and truthfully any other summons has to have the magic words in the style “The State of Mississippi.”   Article 6, §169 of the Mississippi Constitution, which is entitled, “Style of Process” states in pertinent part: “The style of all process shall be ‘The State of Mississippi …’”  Given the fact that the Mississippi Supreme Court and Court of Appeals have strictly interpreted Rule 4 as it applies to publication, it is arguable the summons by publication or any other summons is void without that language. 
Remember too, that in summons by publication, no money judgment for anything can be awarded.  See for example: Child support which can only be obtained by personal jurisdiction or a general appearance.  O’Neill v. O’Neill, 515 So. 2d 1208, 1211 (Miss. 1987).  I see orders all the time that were done by publication with child support in them.  The child support provision is void by law. 

I interrogate my clients if they want to do summons by publication and typically hire a bounty hunting company to see if they can find them.  There have been very few cases where I have not been able to track down a Defendant after a little effort.  The rules require more than just stating you have looked, you need to search the internet, search prison records if they are a former inmate, and document what steps were taken to locate the person so there is a record in the event the order is challenged in the future.  Difficulty in serving the person is not enough to allow summons by publication especially when you know roughly where they are.  Hopefully the above gives you some things to think about when doing summons by publication and helps you avoid the neverending minefield of reversals on appeal. 

Wednesday, April 17, 2013

Factor Tests

In domestic relations cases in Mississippi, there is essentially a factor test for everything.  If you are dealing with custody (Albright factors), attorney’s fees (McKee factors), alimony (Armstrong factors), etc.  One of the keys in every trial is to have the chancellor analyze these factors on the record.  When the chancellor does not, this is an invitation for a reversal on appeal. 

In Lowrey v. Lowrey, 25 So. 3d 274, 280-281 (Miss. 2009), the Mississippi Supreme Court ruled that factor tests such as provided in Ferguson for property division and Armstrong for alimony, must be considered on the record in every case.  These factor considerations are not only essential for appellate purposes, but also for trial courts, as they provide a checklist to assist in the accuracy of their rulings. Id. Following these guidelines reduces unintended errors that may affect the court's ultimate decision. Id. The absence of an analysis of these factors and failure to apply the law to the facts at hand create error.  Id.   Failure to make an on-the-record Armstrong analysis is manifest error. See Henderson v. Henderson, 703 So.2d 262, 266 (Miss.1997); Armstrong, 618 So.2d 1278, 1280 (Miss. 1993). 

If you are a client, help your attorney make a record of any of these factors as may be applicable to your case by providing them as much information as possible.  If you are an attorney, if you suspect a case may be appealed and there is no factor analysis, it is well worth your time to file a motion for reconsiderations or a Rule 52 request to make your record on appeal.  There is nothing worse than a retrial three (3) years later on reversal after the parties have hopefully moved on with their life. 



Monday, April 15, 2013

Injunction Against Other Proceedings

There is a little known branch of caselaw that divorcing clients and attorney’s need to be aware of.  I have had this issue come up in a case before and it saved my client a lot of money.  This branch of law is also applicable to cases outside of family law. 

Here is the scenario.  Parties file for divorce.  Divorce drags on for years for a variety of reasons.  Other party in the mean time moves off and files for divorce after establishing residency in a second state.   Question:  Is it a race to the finish or do you have a remedy to stop the other party from doing that?

Mississippi courts have "held that a citizen of a state may be enjoined from prosecuting against another citizen of that state an action in a foreign jurisdiction for the purpose of evading the law of his own state." Ballard v Ballard, 24 So.2d 335, 337 (Miss. 1946) (citing Fisher v P. Mutual Life Ins. Co., 72 So. 846 (Miss.1916)). "[T]his rule applies, although the suit enjoined has been commenced in another state before the injunction issues." Fisher v Pac. Mut. Life Ins. Co., 72 So. 846, 848 (1916).

In the case of Poole v. Mississippi Publishers Corporation,  208 Miss. 364, 44 So.2d 467 (Miss. 1950), the Mississippi Supreme Court held that a Court of equity in one state may and in a proper case will restrain its own citizens, or other persons within the control of its process, from prosecuting actions or proceedings in other states or foreign countries. The general rule is that the Court of Chancery has the power to restrain a party within its jurisdiction from bringing suit abroad.  It went on to hold in the opinion that a State Court may prevent a citizen under its jurisdiction from doing inequity from maintaining a Federal Court suit in a distant jurisdiction when a convenient and suitable forum is at the resident's door step if the matter of venue is not covered by an Act of Congress. This case went on to hold that the injunction was correctly granted and the action of the Chancery Court was affirmed in so doing as the Appellant had filed an answer.

These cases appear to authorize the use of an injunction against the opposing party and I have been successful in making this argument before.  This is something to consider and something to advise a party of if they are waiting about filing an action with a party in another state. 

Friday, April 12, 2013

Child Abuse

Child abuse is something that never should occur.  Under Mississippi Code Annotated
§ 43-21-353, our legislature placed a mandatory reporting obligation on “any other person” who suspects that a child is being abused and/or neglected.  The statute provides that the willful failure to report the same can result in a fine of up to $5,000.00 and/or one (1) year in prison. 

Nevertheless, take a look at Mississippi Code Annotated § 93-5-23 provides for the assessment of attorney’s fees against a party when the allegations of abuse are proven to be without foundation in the course of litigation.   There is extremely limited case law interpreting the statute.   The American Heritage Dictionary defines “foundation” as the basis or groundwork of anything.  The primary case addressing the “without foundation” standard is Gregory v. Gregory, 881 So.2d 840 (Miss. App. 2003).  In it, the Court of Appeals reversed the ruling awarding a portion of attorney’s fees incurred as a result of allegations of child abuse.  In Gregory, expert testimony was offered showing that some form of abuse had taken place although the trial court did not find the child had been abused.   It appears that when a parties’ actions are based upon an objectively reasonable belief, attorney’s fees should not be awarded.  This appears to be the view adopted in Jones v. Jones, 43 So.3d 465 (Miss. App. 2009) cert denied 49 So.3d 106 (Miss. 2010) on September 9, 2010.  The Court of Appeals stated in ¶42 that

“Since we remand this issue for appropriate consideration, we need not address Steven's request for attorney's fees at this time. However, we note that Mississippi Code Annotated section 93-5-23 (Supp. 2009) allows the chancery court, on its own motion, to grant a continuance in custody cases where allegations of child abuse arise, in order to allow DHS to investigate the allegations. Additionally, section 93-5-23 provides that attorney's fees are only appropriate where the child abuse allegations are "without foundation." Here, in finding an award of attorney's fees not warranted, the chancellor explained that Rachel's concerns were well-founded, because on the witness stand, Steven admitted to the underlying behavior investigated by the guardian ad litem. In short, the chancellor found ample foundation in the following: Steven's admissions on the stand; his continuing practice of bathing Sarah even after the guardian ad litem's first report; and his continuing to help Sarah bathe even after the court instructed both parents that the children were of sufficient age to bathe themselves.”


However, what happens where a parent has strong suspicions during litigation but no objective proof?  Do they risk paying the attorney’s fees of the other side or risk running afoul of the criminal statute?  From reading the cases, it is hard to tell if the “without foundation” as written in the statute is meant to be measured as a subjective standard, objective standard, or a more draconian approach (i.e. no abuse, automatic attorney’s fees).  The issue almost appears to be purely within the discretion of the chancellor.  To me, §93-5-23 needs to clearly define what “without foundation” is.   Best advice I can give is to have an expert to review the matter if there are suspicions but no objective proof and tread carefully with both statutes in mind.  


Thursday, April 11, 2013

Partial Inability to Pay

Clients come to see me all the time with the perception in a divorce case that the party at fault has to pay the attorney’s fees.  I blame television and bad information from various friends of the potential client normally for that perception.    The law in Mississippi is pretty clear.  In a divorce case or pretty much any other case in chancery court there are essentially three ways to get attorney’s fees:

(1)     Party has the inability to pay;   Voda v. Voda, 731 So.2d 1152, 1157 (¶29) (Miss. 1999); Pacheco v. Pacheco, 770 So.2d 1007, 1012 (¶26) (Miss. Ct. App. 2000). 

(2)      One party is in contempt of Court for something;   Mabus v. Mabus,
               910 So. 2d 486, 489 (¶8) (Miss. 2005) (quoting State v. Blenden, 7
               48 So. 2d 77, 87 (¶33) (Miss. 1999)).

(3)    Party has done something to subject them to sanctions:  e.g. Rule 11, §11-55-1, §93-5-23,     §93-5-24, Rule 37,  etc.

Most of the chancellors I appear in front of believe that inability to pay is a fairly high standard.  It is often hard to show that the client has the total inability to pay because the party would probably not have a lawyer if that was the case. 

That being said, I believe that Robinson v. Newsome, 88 So.3d 767 (Miss. Ct. App. 2011) carves out a useful tool.  In this case, the chancellor found that Ms. Newsome had the partial inability to pay her attorney’s fees and ordered Mr. Robinson to pay a portion of them.  Mr. Robinson appealed pro se arguing, among other things, that Ms. Newsome had not shown the total inability to pay.  The Court of Appeals affirmed the ruling of the trial court that Ms. Newsome was entitled to have a portion for her attorney’s fees paid by Mr. Robinson. 

I believe this may be a useful tool where a client has the ability to pay you something, but not much.  The opinion seems to make the standard  lower than the total inability to pay standard and is a useful tool to consider.



Wednesday, April 10, 2013

Improving your Chancery Court Practice

Chancellor Larry Primeaux has written an excellent article on Chancery Court Practice for the Mississippi Law Journal at the link below.  It is well worth your time to read.   



Tuesday, April 9, 2013

Attorney's Fees on Appeal

Well, I finally decided to launch a blog.  I will be focusing on issues of interest in family law and litigation in Mississippi.   I have been working on several family law appeals recently and noticed an interesting issue in the case of Tatum v. Tatum, 2011-CV-1795 (decided December 11, 2012). 

This case has some interesting twists if you do much appellate work.  In Tatum, the husband appealed an order of the lower court granting the ex-wife attorney’s fees that she incurred on appeal plus interest.  The Court of Appeals had previously reversed the trial court’s order and asked the trial court to determine the amount of attorney’s fees the wife was due from the original divorce trial.  On remand, the chancellor set the amount of attorney’s fees due to the wife from the original trial and added the attorney’s fees the wife incurred on appeal along with interest.  Mr. Tatum appealed arguing that the chancery court lacked authority to award attorney’s fees incurred on appeal plus interest.

Justice Russell writing the opinion of the Court reversed and rendered on the issue of interest.  The Court noted that the original remand did not contain an allowance of interest and as such the chancery court had no authority to award the same.  However, the Court of Appeals noted that because they accessed the “costs” to Mr. Tatum from the original remand, the trial court had the authority to access the attorney’s fees incurred by Ms. Tatum on appeal.  No motion for rehearing was filed and a mandate has been issued on this case.

To me, this looks like a powerful tool on appeal to family law attorneys and anyone that does appellate work of any kind.  From my reading of the opinion, it appears that if costs are accessed against you that you are on the hook for the attorney’s fees incurred.  I would have been of the opinion as Mr. Tatum that they were not recoverable. 

I believe this case conflicts and/or overrules Harbit v. Harbit 3 So.3d 156 (Miss. App. 2009)which held that the term costs does not include attorney’s fees.  At some point, there will have to be some clarification on this issue but until then, this is good information to have when discussing appeals with your clients and potential issues that can arise.