Wednesday, December 31, 2014

Dropbox Use

I have been using Dropbox a lot here lately.  They have upped the personal storage amounts to 2tb which helps in the amount of stuff I have to store.  The feature I have been using a lot is to create links to discovery documents.  You can create links to the documents with passwords and also set them to expire in a set number of days.  This increases security but also makes it where I can have a phone conference with a client to go over discovery without having to wait on them to get a CD of a thousand pages of documents to review.

Tuesday, December 30, 2014

Every Other Weekend

Last week I talked about schedule conflicts in visitation orders located here.  I have had the issue come up in another context.  I reviewed an order from a case that is currently up on appeal.  The trial counsel drafted the order to read that the noncustodial parent gets visitation every other weekend.  Two issues:  (1)  does this apply during the summer and holidays; (2) whose weekend is it after the holidays are over?  Even though the case is on appeal, we are attempting to get the court to issue a clarification on that because issues are already arising as a result.  Personally, I feel the preferred method is to have the order say every 1st, 3rd, and 5th weekend with the holiday visitation overriding the weekend visitation.  It is also helpful to say the first Friday of the month counts as the first weekend.  (i.e. some creative difficult parents will try to say it is the first full week of the month instead of the weekend).  This also makes it where if the parties ever get off schedule, it can easily be determined whose weekend it is.

Monday, December 29, 2014

Trial Notebook

I have been a fan of trial notebooks for years.  During the holidays, I found an old book I bought several years ago called Building Trial Notebooks by Leonard Bucklin.  A link to it is located here.  Frankly, I bought it several years ago and ended up putting it aside after getting a few points from it.  I rediscovered it and realized how many good ideas it had that I am planning on trying to implement. The book is geared toward personal injury litigation but is easily adaptable to any case.  

Friday, December 26, 2014

Interesting Article

I came across and interesting article on vacating guilty pleas in Mississippi located here.  This is a topic attorney's routinely get asked about so it is worth filing away. 

Thursday, December 25, 2014

Cheat Sheet

Merry Christmas to everyone!!  Yes, I am up early on Christmas morning taking care of items around the house and as usual working a little.  While doing some stuff this morning, found a Mississippi Worker's Compensation cheat sheet that looked pretty good located here.  Hope the readers find it useful.  It can be useful in calculating benefits without having to go through each statute.

Tuesday, December 23, 2014

Book Review

This morning I finished reading Changing Laws, Saving Lives by Randi McGinn.  It was an excellent read that really pulls you in.  It goes through her discussing her case against Allsup convenience stores for negligent security practices.  It also provides lots of practical tips on trial preparation and ideas that can be used.  It is fairly short at a little over 200 pages but time really flies when you are reading it.  Highly recommended.  A copy can be purchased here. 

Monday, December 22, 2014

Schedule Conflict on Visitation

Schedule conflicts on visitation orders is something that I keep seeing in orders.  I currently have an appeal issue pending on one and trial set on another.  The issue is that prior attorneys drafted orders where it is unclear if weekend visitation supersedes the holiday visitation.  As such, I am defending a contempt case where one party said weekend visitation continues into the summer along with summer visitation, while one party says the four weeks is the only visitation provided.  I have a similar issue in a case to address whether weekend visitation is part of Christmas visitation.  A lot of time, attorney's fees, and angry clients could have been saved by the simple adding of a sentence that the holiday visitation supersedes the weekend visitation.

Friday, December 19, 2014

City and Animal Liability

In light of yesterday's post regarding animal liability, I decided to add a link to an article dealing with a city's liability for failure to enforce their own animal ordinances.  The link is here.   A theme on this and several of the other cutting edge theories of liability is that if you find regulations a group is violating, liability can be established assuming you can prove causation. 

Thursday, December 18, 2014

Wild Goose Chase

Last week the Mississippi Supreme Court decided Oiler v. Bailey located here .  The only way I can describe the case is a wild goose chase literally.  The case dealt with a Plaintiff's injuries at a friend's home by a pack of pet geese.  The trial court had originally granted summary judgment since it had not been shown that the geese had a dangerous propensity.  The Mississippi Supreme Court reversed finding that the geese acting as a pack created the dangerous situation such that it was not necessary to show that the particular goose which attacked the Plaintiff had a dangerous propensity as opposed to the pack of geese.  While the facts are funny, truth be known this is an important refinement of the dangerous propensity rule with regard to animal liability. 

Wednesday, December 17, 2014

Statute of Limitations and Appeals

Is the statute of limitations tolled by the filing of an appeal?  This was the issue raised yesterday in Hudson v. Lowe's located here.  It is a rather complicated fact pattern.  The short version is that first complaint filed by Hudson was dismissed without prejudice initially by the trial court and was appealed.  The decision to dismiss was affirmed.  A second complaint was filed then after the statute of limitations ran.  The Plaintiff's attorney argued the statute of limitations was tolled by the appeal.  Lowe's argued that the statute was only tolled by the 120 time limit for service of process on the original complaint.  The trial court dismissed the second complaint finding the statute of limitations had run and this was affirmed.  As the Court of Appeals noted:  " In Watters, the supreme court addressed the question of whether the filing of a complaint tolls the statute of limitations until the 120-day window for service of process has expired or until after the case has been adjudicated. Id. at 1244. The supreme court ultimately found that filing a complaint tolls the statute of limitations only for the 120-day service period provided in Rule 4(h), and the clock begins to run again at the end of the 120  days. Id. at 1244"

Tuesday, December 16, 2014

Reversal on Appeal

Larry Primeaux had a good discussion yesterday dealing with reversals on appeal and whether a new trial should be conducted.  A link to the article is here.  I do a fair bit of appeal work. For the most part, I am a fan of a new trial as opposed to a review of the record.  It gives you a chance to clear up any issues the trial judge made have had with the prior testimony.  This is particularly true on child custody and child support.  Many times appeals will take two years or so to make their way back to the trial court.  By then, lots of things can change. 

Monday, December 15, 2014

Employer Liability for Wrongful Death

An Illinois Appellate Court recently reversed the dismissal of a wrongful death claim against an employer for failure to monitor an employee's email.  A link to the article is here.  The argument has that the failure to follow the company's own internal policy resulted in the deaths of several people to whom threats had been made from a work computer.  Pretty creative and arguably negligence per se since they violated their own policies.   

Friday, December 12, 2014

Defrauded Father

The Mississippi Supreme Court yesterday had a really confusing custody case.  From my reading of it, the in loco parentis got reformed a good bit with the opinion.  The case was In the Interest of a Minor: Victoria Denise Waites .  The issue is  whether father who raised child can be ousted from custody determination once DNA proves the child is not his.  The answer unfortunately appears to be yes although he may still get visitation.  Amy and Scott had two children. Two years after their divorce, Amy moved to have their joint custody agreement modified because she was planning to remarry and live in Iowa.  After filing the petition,  Amy contacted T.J. Sanford (“T.J.”) to let him know she believed him to be her eldest child’s biological father.  A DNA test proved T.J.’s paternity and he sought  custody. The trial court excluded Scott from the custody determination, applied Albright to Amy and TJ and awarded full physical and legal custody to Amy rather than T.J.  Scott appealed.  The Court of Appeals found that Scott’s fatherly actions  rebutted  the natural-parent presumption afforded to Amy and T.J. and held that  Scott should have been considered on equal footing with the natural parents.  The Miss.S.Ct. reverses noting that:
"This Court has stated that the grounds for rebutting the natural-parent presumption involve negative actions/dispositions of the natural parents in relation to the child (i.e., abandonment, desertion, immoral conduct detrimental to the child, unfitness). And the chancery court’s finding, which was not challenged on appeal by Scott or in the Court of Appeals decision, was that Amy and T.J. had not conducted themselves in such a manner as to rebut the natural-parent presumption. Yet, the Court of Appeals determined that Scott’s positive, “supportive[,]” “fatherly actions” operated to rebut the natural-parent presumption and placed him on “equal footing” with Amy and T.J. for purposes of an Albright analysis. J.S.W., 2013 WL 6231797, at **1, 3. This Court does not find that the Court of Appeals’ position is congruent with the present state of the law."
To me the troubling part of the opinion is that if you have no grounds for custody as a third party, how can you have a right to visitation which the Supreme Court affirmed?  Best I can tell the loco parentis doctrine acts as an equitable remedy to provide for visitation.   

Thursday, December 11, 2014

Premises Liability

Premises liability law in Mississippi and Tennessee are virtually the same.  In any kind of slip/trip and fall cases, it must be shown that the defendants had knowledge of the condition or should have known about it.  This is illustrated in Hannah v. Sherwood Forest Rentals, LLC No. E2014-00082-COA-R3-CV (Tenn. Ct. App. Nov. 17, 2014) located here.  In this case the plaintiff alleged that she stairs gave way resulting in injuries to both feet and ankles.

The Defendants filed for summary judgment which the trial court granted since there was no genuine issue of material fact by which a reasonable jury could find that defendants had actual or constructive notice of any alleged dangerous condition. The Tennessee Court of Appeals affirmed.  The Defendants presented evidence that there had been no prior or subsequent reports of problems with the stairs; that the maintenance staff inspected the cabin at least monthly and had not seen a problem; that the housekeeping staff cleaned the cabin prior to plaintiff’s family checking in and did not see a problem with the stairs; and that the owners had not seen any problem with the stairs or received any report of such a problem during their frequent visits to the cabin.

Only question I had is what if the Plaintiff had an expert which stated that the inspections by the Defendant were not adequate and could have been discovered?  I believe that would have survived summary judgment.

Wednesday, December 10, 2014

Child Support Credit

Should a parent get credit for the time a child lives with them?  The answer is Mississippi is yes, if you provide adequate proof.  This was the issue in Wilson v. Stewart that the Mississippi Court of Appeals decided yesterday.  A link to the opinion is here.  The father apparently made an argument that he was entitled to a credit for the time the minor child lived with him.  He apparently produced no evidence of that outside of his testimony best I can tell. The Court noted that   "Further, as the noncustodial parent,  Jay was required to provide satisfactory evidence to show he was entitled to a credit for the time period Henley lived with him.  See Smith v. Smith, 20 So. 3d 670, 674 (¶13) (Miss. 2009).". Since this was apparently the only proof, no credit was given by the trial court or on appeal.   I believe that testimony of the parent plus something is needed (i.e. admission of other party, child testimony, documents of some kind, etc.) in light of this case. 

Tuesday, December 9, 2014

Certified Mail Service of Process

Yesterday, I discussed how to save a few dollars on service of process.  Along the same theme, service by certified mail is possible on persons who reside outside of Mississippi.  Rule 4 of the Mississippi Rules of Civil Procedure provides as follows:

"(5)  Service by Certified Mail on Person Outside State.  In addition to service by any other method provided by this rule, a summons may be served on a person outside this state by sending a copy of the summons and of the complaint to the person to be served by certified mail, return receipt requested.  Where the defendant is a natural person, the envelope containing the summons and complaint shall be marked “restricted delivery.” Service by this method shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked “Refused.”
This is one Rule where the comments are more helpful than the Rule.  The comments provide that:

"Certified mail service is authorized by Rule 4(c)(5) and is limited to persons outside the state. The plaintiff must send a copy of the summons and complaint to the person to be served by certified mail, return receipt requested [and must thereafter mail by first-class mail, postage prepaid, a copy of the summons and complaint to the person to be served at the same address. The Proof of Service must indicate the date on which the summons and complaint were mailed by first-class mail and must also include as an attachment the signed return receipt or the return envelope marked “refused.” Service upon a foreign corporation, partnership or unincorporated association is effective even if the certified mail is delivered to and signed for or refused by a person other than the addressee, if the person accepting delivery and signing or refusing delivery is an officer or employee of the defendant who is authorized to receive or who regularly receives certified mail. See Flagstar Bank, FSB v. Danos, 46 So. 3d 298 (Miss. 2010) (finding service by certified mail upon a foreign corporation effective where the plaintiff addressed the certified mail to the foreign corporation’s registered agent for service of process and the certified mail was delivered to the proper address and signed for by the mail clerk rather than the registered agent). Service of process is not effective under Rule 4(c)(5) if the mailing is returned marked “unclaimed/refused”, “unclaimed” or “undeliverable as addressed.” See Bloodgood v. Leatherwood, 25 So. 3d 1047 (Miss. 2010)."

I am aware of at least one case where the issue pending is whether certified mail service of a private party is effective if someone else signs for it?  In theory, it is marked restricted delivery so no one should be able to get it.  From a practical standpoint, using the comments I would presume an agent can get it for the person.  Will be interesting. 

Monday, December 8, 2014

Saving Money on Service of Process

The Mississippi Rules of Civil Procedure provide a few ways to save on service of process fees.  Rule 4 of the Mississippi Rules of Civil Procedure provides under Section 3 that: 

"(3)  By Mail.
(A)  A summons and complaint may be served upon a defendant of any class referred to in paragraph (1) or (4) of subdivision (d) of this rule by mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to Form 1-B and a return envelope, postage prepaid, addressed to the sender.
(B)  If no acknowledgment of service under this subdivision of this rule is received by the sender within 20 days after the date of mailing, service of such summons and complaint may be made in any other manner permitted by this rule.
(C)  Unless good cause is shown for not doing so, the court shall order the payment of the costs of personal service by the person served if such person does not complete and return within 20 days after mailing the notice and acknowledgment of receipt of summons.
(D) The notice and acknowledgment of receipt of summons and complaint shall be executed under oath or affirmation."

So if the other party does not return the acknowledgment within twenty (20) days, absent good cause, the court shall award the cost of service of process.  The language shall removes the discretion element from the court and makes it mandatory.  Due to paranoia, I am often selective on using this section unless I am confident the other party is not going to run.  I also want to make sure that I can still get process served within the 120 day window as required by Rule 4.  Still if you have a medical malpractice case with twenty-four named defendants, saving $5,000 on service of process that could be used on expert fees is certainly something to consider. 

Friday, December 5, 2014

Variances ini Walkways

Slip/trip and fall cases are often very fact sensitive.  The :Mississippi Court of Appeals dealt with the grant of summary judgment on one of these cases on Tuesday in Trull v. Riverboat Casino located here. The issue in the case was whether a variance in the height of the sidewalk could constitute a dangerous condition.  The Plaintiff had fell when the variance in the sidewalk caused her to trip.  The Court of Appeals said no.  Unfortunately, Mississippi caselaw has consistently held that the existence of slight variations in walkways or thresholds does not constitute a dangerous condition. See, e.g., McGovern, 566 So. 2d at 1226; Rowe, 248 Miss. at 415, 159 So. 2d at 283; Bond, 908 So. 2d at 88-82 (¶¶7-9).   There are a lot of facts that are not brought out in the opinions which can be found in the briefs at the Supreme Court website.  I have also heard that the injuries incurred in the case have resulted in multiple surgeries for the Plaintiff.  After reading the briefs, I hope the case goes up for the Mississippi Supreme Court to review.  There appears to be enough front the briefs to get around the cases cited above to make it a factual issue for a jury. 

Thursday, December 4, 2014

Oral Argument of Interest

Today at 10:30 A.M. CST, the Mississippi Court of Appeals will hear oral arguments in Collins v. Collins.  This could potentially have a big impact on irreconcilable differences divorce in Mississippi.  The issue in the case is that the parties did a waiver of the financial disclosures and the only one party was represented at the time of the divorce.  The husband actually filled out a financial declaration but the wife never looked at it to notice his $420,000.00 retirement account.  The issue presented is whether the waiver is sufficient under these circumstances.  The wife is currently on public assistance from my understanding.  The argument can be viewed on the Mississippi Supreme Court website.  This is a case to watch for when an opinion comes out. 

Wednesday, December 3, 2014

Bankruptcy and Divorce

Bankruptcy and divorce unfortunately seem to go hand in hand.  Many people get used to living on two incomes and then cannot get by on just one income after a divorce.  So, what affect does bankruptcy have on the items agreed to in a divorce?  The answer is very little.  This was illustrated in Mosley v. Smith decided by the Court of Appeals yesterday.  A link to the opinion is here.  The case dealt with an unpaid car note.  The divorce decree had a hold harmless provision in it regarding the debt.  The husband discharged the debt in bankruptcy and the wife was sued for the amount as a result.  The husband tried to argue the bankruptcy discharged the debt or alternatively that the seven (7) year judgment statute of limitations applied to bar her claim.  The Court of Appeals said no noting that the bankruptcy did not discharge the Husband's debt to the wife by way of the hold harmless agreement and that the seven (7) year judgment statute did not apply because the wife was only sued on the debt five (5) years ago at the time of the trial. 

Tuesday, December 2, 2014

Confusing Orders

Interpretation of prior court orders has earned me a lot of retainers in the past.  One area that can get confusing is on a visitation order whether the weekend visitation overrides the holiday visitation.  I always put a provision to deal with that in my orders.  Without that provision, frankly both parties have reasonably valid positions that the Court will have to sort out. 

Monday, December 1, 2014

Interviewing Children

Interviewing children for any kind of case is always a touchy issue.  Depending on the child's age, interviewing has to be conducted in different ways.  I recently did my yearly renewal on my guardian ad litem certification.  One of the books mentioned at the conference was Handbook on Questioning Children:  A Linguistic Approach.  A copy can be purchased on Amazon here.  I started reading this over the holiday weekend and it does an excellent job in discussing how children of different ages, backgrounds, and ethnicity can be effectively questioned.  This is particularly important in complex custody cases and in the investigation of abuse claims.