Wednesday, December 30, 2015

Reply Briefs

I still do a good bit of appellate work.  The article located here has some good has some good advice on writing reply briefs.

Tuesday, December 29, 2015

Good Online Trial Material

Some really good online trial material is located here.  The articles are in the context of criminal trials but the same principals apply to any trial. 

Monday, December 28, 2015

College Support

“A chancery court may adjudge that one or both parents provide the means for a college education for their children." Baier v. Baier, 897 So.2d 202, 205 (¶ 16) (Miss. Ct. App. 2005) (citing Pass v. Pass, 238 Miss. 449, 458, 118 So.2d 769, 773 (1960)). "When the father's financial ability is ample to provide a college education and the child shows an aptitude for such, the court may in its discretion, after hearing, require the father to provide such education." Id. "The parental duty to send a child to college is not absolute, however, but is dependent upon the proof and the circumstances of each case." Id. (citing Hambrick v. Prestwood, 382 So.2d 474, 477 (Miss. 1980)).          

 Should this support be set on a young child?  In Harmon v. Yarbrough, 767 So.2d 1069, 1071 (¶ 6) (Miss. Ct. App. 2000), the Court of Appeals addressed a somewhat similar issue. In reaching its decision, the Harmon court noted that, according to the Mississippi Supreme Court, it is improper to impose an obligation to pay college expenses on a parent in a divorce proceeding until the following showing is made: 

The duty of a father to send a child to college, under the circumstances of this case, is not absolute. It is dependent, not only on the child's aptitude and qualifications for college, but on whether the child's behavior toward, and relationship with the father, makes the child worthy of the additional effort and financial burden that will be placed on him. Sending children to college is expensive and can cause much sacrifice on the part of parents. It cannot ordinarily be demanded, but must be earned by children through  967 So.2d  85  respect for their parents, love, affection and appreciation of parental efforts, none of which are present in this instance.   Id. (quoting Hambrick, 382 So.2d at 477).          

The Harmon court then found that "Since the duty is dependent upon several factors, including the child's suitability for college and his or her relationship with the supporting parent at the time of the expenditures, it would normally be improper to impose that obligation when the child is only three years old." Id.   What is a little strange is that there is some caselaw that appears to indicate this same showing is not needed in the context of a paternity case.  As such, it appears to be easier to get college support for a nonmartial child and during a divorce proceeding. 

Wednesday, December 23, 2015

Article on Damages Caps

Here is an excellent law review article dealing with damages caps in Mississippi and why they are wrong.

Tuesday, December 22, 2015

Beware of Throwing Too Many Grenades

Many times in family law cases, both sides get carried away with throwing too many grenades at the other side.  The problem is that this can sometimes create the Cold War issue of mutually assured destruction.  No matter how bad the parties dislike each other, on some level they will have to work together.  Additionally, throwing too many grenades can sometimes result in a finding that both of the parents are not fit for custody resulting in the Department of Human Services obtaining custody. 

Monday, December 21, 2015

MRCP 81 vs. MRCP 40

I was reading on some cases last night while working on a number of briefs I have due.  In reviewing a case a notice there appears to be some conflict with Mississippi Rule of Civil Procedure 81 and Mississippi Rule of Civil Procedure 40.  Rule 81 provides that certain matters have to be tried on a day certain or continued to another date.  However, Rule 40 provides that trials may be set by agreement.  The question then comes does Rule 81 override Rule 40 or does Rule 40 override Rule 81?  This normally comes up after both parties get an attorney and agree to set the matter for a trial later once discovery is complete.  My gut says that a trial set by agreement acts as a waiver.  However, there is an argument that Rule 81 is jurisdictional which can be attacked whenever. 

Thursday, December 17, 2015

Legal Malpractice Claims

I am one of the few people who handle legal malpractice claims for Plaintiffs regularly.  There are a few quirky areas where claims are starting to arise that attorneys need to be aware of in order to prevent a claim.  The following are a few of those areas to evaluate:  (1) failure to conduct discovery; (2) negligent supervision of employees of firm; (3)  failure to communicate settlement offers;  (4) failure to respond to requests for admissions within thirty (30) days; (5) failure to communicate deadlines to client and trial dates; (6) failing to properly finalize settlements.   

Wednesday, December 16, 2015

Death and Divorce

Yesterday, the Mississippi Court of Appeals decided McGrew v. Estate of McGrew located here.  The issue in the case was that a divorce was granted but the property division was not final.    Before all the issues could be resolved, the husband died.  After his death, the chancellor finished dividing the property and issued a final decree. The Court of Appeals reversed and rendered finding that the death of a party while the divorce is pending terminated the proceeding. 

Tuesday, December 15, 2015

Insurance Coverage

Last week, the Mississippi Supreme Court decided Safeway Insurance v. Dukes located here.  The issue in the case was the failure to list a frequent driver of a vehicle in an insurance policy.  The Court ruled that the failure to list the additional party who drove the vehicle frequently rendered the policy void due to material misrepresentation.   

Monday, December 14, 2015

Line of Demarcation vs. Abuse of Discretion

Last year in Collins v. Collins located here, the Mississippi Supreme Court overruled a line of cases that found a temporary support order served as a line of demarcation for the accumulation of martial property.  The Court in the decision found that a chancellor may use this as the line of demarcation.  Currently, there is no real guidance on when it becomes an abuse of discretion for the chancellor to not use one date over another.  I am working on an appeal brief that should be filed by the end of the month dealing with this issue.  The issue very narrowly crafted is going to deal with whether it is an abuse of discretion to not use the date of the temporary order when substantial support outside of child support is provided to a spouse?  Hopefully some guidance will come out of the opinion. 

Thursday, December 10, 2015

Tax Deductions and Modification

On Tuesday, the Mississippi Court of Appeals decided Everett v. Burchfield located here.   The  Everetts divorced in 2013 and split custody of the four kids.  Each claimed two of the children as tax deductions.  In 2014, Everett sought sole physical custody of the children. Burchfield counterclaimed for full physical custody.  The court granted full physical custody to Burchfield and altered the parties’ property settlement agreement to allow Burchfield to include all four children as dependents on her tax forms.  Everett appealed and the Court found as follows: “We affirm the chancellor’s judgment with regard to custody. However, the parties’ property-settlement agreement was not properly before the chancery court for amendment. Accordingly, we reverse and render the chancellor’s ruling as to Burchfield’s right to claim all four children as dependents for tax purposes.”

This ruling seems kind of strange to me with all parties before the court.  It seems to me that the issue could be resolved by the trial court as part of the claims for general relief.  This case could be a signal to file more detailed pleadings and that if the relief is not specifically requested, the trial court may not grant it. 

Wednesday, December 9, 2015

PSA Provisions

The Mississippi Court of Appeals decided Voulters v. Voulters on Tuesday located here.  In this case, there was a dispute over whether a life insurance provision in a property settlement agreement was meant to terminate upon the payment of all the sum lump alimony.  The Court ruled that the settlement as written had them as two separate provisions.  As such, the obligation for life insurance continued absent a provision terminating it. 

Tuesday, December 8, 2015

Denied Motion to Compel

Discovery can get painstaking at times.  Sometimes attorneys get overzealous on filing a motion to compel.  There are penalties if a motion to compel is denied.  Rule 37 provides as follows:

Rule 37(a)(4) of the Mississippi Rules of Civil Procedure provides that:

"If the motion is denied, the court shall, after opportunity for hearing, require the moving party of the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expense unjust."

Under the rule, the awarding of attorney's fees is a double edged sword where absent some justification or other circumstances, someone is getting attorney's fees.  This is one reason judges expect the attorney's to work out these issues among themselves.  This is also why it is important to have a paper trail of the steps taken to resolve it so the court can see who is unreasonable.  Good rule of thumb is to never write sometime to opposing counsel you do not want the court to review.   

Friday, December 4, 2015

Rooted in Malpractice

The Mississippi Court of Appeals decided Moore v. Jackson Cardiology Associates, P.A. located here on Tuesday.  The issue in the case was whether a patient falling on a treadmill during a stress test constituted ordinary negligence or medical malpractice.  If it was malpractice, the statute of limitations had run.  The Court of Appeals found that because the patient fell during a medical procedure, this was medical malpractice since it was rooted in medical conduct.    As such, the complaint was not filed within two (2) years and therefore barred.

Tuesday, December 1, 2015

Medical Expert Examination

I was working on a case late last night and found a good article on examining medical experts in medical malpractice cases located here. 

Monday, November 30, 2015

Failure to Prepare a 30(b)(6) witness

A party may take the deposition of an individual who has knowledge relevant to the lawsuit.  In addition, a party may take the deposition of a company.  In a company deposition, known as a 30(b)(6) deposition in federal court (and sometimes referred to as a person most knowledgeable or qualified deposition in state court), a party identifies the topics that it wants the opposing party’s company witness to discuss, and then the witness testifies on behalf of the entire company and speaks for the company.
Rule 30(b)(6) provides that persons designated to represent an organization “shall testify as to matters known or reasonably available to the organization.”  This means that an organization must “produce one or more 30(b)(6) witnesses who [are] thoroughly educated about the noticed deposition topics with respect to any and all facts known to [the organization] or its counsel.”  If the persons designated by the corporation do not possess personal knowledge of the matters set forth in the deposition notice, then the corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for the corporation.   The corporation and its counsel have a duty to prepare a witness on behalf of the corporation.
Failing to prepare any type of witness, whether the witness is testifying as a company witness or as an individual, evinces a lack of diligence and, thus, violates the rules of professional conduct.9  Also, failure to prepare a witness can result in sanctions against the attorney and dreadful deposition testimony from the witness that can negatively affect a client’s case. 
In Int’l Ass’n of Machinists, Int’l Ass’n of Machinists & Aerospace Workers v. Werner-Masuda, 390 F. Supp. 2d 479, 487 (D. Md. 2005) the first witness designated as the 30(b)(6) witness was, in the words of the district court,“woefully unprepared.”  He “had no knowledge at all regarding any of the subjects listed on the 30(b)(6) notice, and, in fact, had not even seen the notice until it was shown to him during the deposition.”  In addition, “he personally had undertaken no steps to prepare for the deposition and [the organization] and its counsel had not made any effort to prepare him” except for one bit of advice – they “advis[ed] him to tell the truth.”  Moreover, this witness lacked basic knowledge regarding the organization as he was only a part-time volunteer during a period of time that was irrelevant to the case.  As a result, the organization and its counsel were sanctioned in the amount of $7,947.30.18

Friday, November 27, 2015


Over the holiday, I downloaded Trialpad for IPad.  The website is located here.  So far, this is one app that lives up to the hype.  It has features to put exhibit stickers on documents and link into an overhead projector with a variety of other features.  It is certainly cheaper than most other trial presentation software.

Wednesday, November 25, 2015

Alimony Deficit

On Tuesday, the Mississippi Court of Appeals decided Layton v. Layton located here.  The Court did a detailed discussion of what constitutes a deficit for alimony.  The Court found as follows:

"It  is  true that alimony should not be considered unless the property division results in a “deficit” to one spouse.  See, e.g.,  Seymour v. Seymour, 960 So. 2d 513, 519 (¶16) (Miss. Ct. App. 2006).   But the “deficit” to which our cases refer is not one spouse’s receipt of assets with a lesser net  value than  those  allocated  to  the  other  spouse.    Rather,  the  question  is  whether  the  spouse seeking  alimony  is  left  “with  a  deficit  with  respect  to  having  sufficient  resources  and  assets to  meet his  or  her needs  and  living  expenses.”    Jackson  v. Jackson,  114  So.  3d  768,  777 (¶22) (Miss. Ct. App. 2013) (emphasis added); accord,  e.g.,  Pecanty  v. Pecanty, 97 So. 3d 1263, 1266 (¶¶19-20) (Miss. Ct. App. 2012); Deborah H. Bell, Mississippi Family Law § 9.01[4][b], at 235(2005).

Thus, an unequal division of property does not preclude an award of alimony when the  chancellor  finds  that  alimony  is  warranted based  on  an  analysis  of  the  Armstrong  factors, including  the  parties’  respective  incomes  and  expenses,  fault,  and  the  length  of  the  marriage. See  Pierce  v.  Pierce,  132  So.  3d  553,  565  (¶30)  (Miss.  2014)  (“[T]he  chancellor  must consider  the  [Armstrong]  factors  in  determining  whether alimony  should  be  awarded .  .  .  .”).  For example,  on comparable facts, we affirmed an alimony  award even though the division of  marital  property  greatly  favored  the  wife,  the  husband’s  income  was  significantly  less  than John’s, and the wife’s income was slightly  more than Amanda’s.   See Seymour,  960   So. 2d at  519-20  (¶¶13-17).    The  primary  financial  consideration  was  not  that  the  wife  was  awarded more  valuable  marital  property  but  that,  despite  “her  share  of  the  marital  property,”  her  assets and post-divorce income were insufficient to cover her basic monthly expenses.  See id. at 520."

Monday, November 23, 2015

Marital vs. Estate Property

I have been getting a lot of litigation recently over marital vs. estate property.  I have been unable to find any case on point.  The best I have been able to come up with is that if the property is commonly used by both parties during the marriage, it is arguably martial.  If the property is of a more personal natural (i.e. jewelry, guns, etc.), it is the property of the deceased's estate at death.   This is an area some caselaw will develop on at some point.

Thursday, November 19, 2015

Uncooperative Deposition Witness

Misconduct occurs by both witnesses and opposing counsel in depositions.  What is to be done with the abusive and unresponsive witness?  To paraphrase the court in GMAC Bank v. HTFC Corp., 248 F.R.D. 182, 184 (E.D. Pa. 2008), uncivil conduct by a witness at a deposition is “less discussed . . . but nonetheless just as pernicious” as misconduct by counsel.  The GMAC Bank case addresses “the duty of counsel who is confronted by uncivil conduct by his own witness.”  Id.  The discussion is too lengthy to quote, but here is a sample of what happened in the case.  The deposition was twelve hours long.  In the deposition, the ‘f-word’ “and variants thereof” were used by the witness no fewer than 73 times.  Id. at 187.  The court’s “impression” was that the “language was chosen solely to intimidate and demean” the examining lawyer.  Id.  According to the court, this was “confirmed” by the witness’s “repeated references to himself as ‘the professor’ and a ‘doctor of law,’ and repeated expressions of his belief that [the examining lawyer was] a ‘joke’ and a ‘[f___ing] idiot.”  Id. at 187.  

In light of these fact, the court imposed sanctions.  In a thorough and analytical opinion, the court required that the witness be deposed again, under the supervision of a magistrate judge.  Id. at 193.  The witness and his lawyer were held jointly and severally liable for the examining party’s fees and expenses incurred in presenting the motion, and in preparing for and conducting “the portion of the deposition sessions . . . that was frustrated by” the witness’s conduct.  Id. at 194.  In sanctioning the defending lawyer, the court was critical of the fact that he (according to the opinion) “sat idly by,”  “incorrectly directed the witness not to answer,” and was observed (on at least one occasion) “chuckling at [the witness’s] abusive behavior toward [examining] counsel . . . .”  Id. at 195 & n.17.  “An attorney faced with such a client cannot . . .  simply sit back, allow the deposition to proceed, and then blame the client when the deposition process breaks down.”  Id. at 195 (citation omitted).

Wednesday, November 18, 2015

In Loco v. Natural Parent

The Mississippi Court of Appeals decided Welton v. Westmoreland yesterday located here.  This case added to the confusion of the natural parent presumption vs. an in loco parentis parent.  In this case, without finding the natural mother unfit, the Court of Appeals affirmed awarding custody to the step-parent who had raised the minor child as his own.  This appears to conflict with In re Waites, 152 So. 3d 306 (Miss. 2014) as the dissent noted.  I would expect this case to go up on cert.   The best distinction I can figure out reading Waites and Welton together is this:  (1) If both natural parents in the picture - must prove unfitness or other conduct warranting third party custody, (2) If one natural parent in the picture only and other parent is in loco parentis, equal footing potentially depending on the facts. This is a very confusing area where I have a brief of my own due soon.    

Tuesday, November 17, 2015

Bound by Albright

I heard an interesting comment by a chancellor recently regarding Albright.  The general idea was that they are not bound by Albright in a custody analysis.  It does not sound right but it is correct.  The best interest of the child is what governs custody.  Albright is a guide but the court can generally weigh those factors in whatever manner they see fit to find the best interest of the child.  I am aware of at least one or two unreported cases where a parent was only favored over the other parent on one or two Albright factors but ended up with custody due to the weight given those factors. 

Saturday, November 14, 2015

Dissipation of Assets

On Thursday, the Mississippi Supreme Court decided Burnham v. Burnham located here.  In this case, the Court reversed a finding by the chancellor that assets were dissipated when it was found that the proceeds of a sale were used to pay off marital debt.  To me, what this case indicates is that a dissipation actually requires a complete loss of funds as opposed to a mere sale.  As long as it can be traced as to where the funds went and there was some benefit to it, this is probably not dissipation. 

Wednesday, November 11, 2015

Step Parent Visitation

The Mississippi Court of Appeals decided Neely v. Welch yesterday located here.  The issue in the case was whether a step parent had the right to visitation.  The Court of Appeals found that with the natural parent presumption still intact with the natural parent, the step parent had no rights.  The Court of Appeals seemed to be sympathetic to the step parent, but found no legal right for him to have visitation.  This is one area the legislature needs to look at.  There would have to be several items in the statute to survive a constitutional challenge though. 

Monday, November 9, 2015

Wrongful Conduct and Attorney's Fees

Attorney's fees in Chancery Court in Mississippi can be awarded due to wrongful conduct.  This is normally in the context of contempt or failure to comply with discovery orders.   I am arguing a case later today dealing with the filing of a fraudulent affidavit in order to seize a tax refund.  It is arguably contempt due to a prior court order and also wrongful conduct which should result in an award of attorney's fees.  The area dealing with wrongful conduct is still developing in legal theory and very fact sensitive.  The most successful application seems to be where conduct is arguably contempt since the conduct tries to circumvent a court order. 

Friday, November 6, 2015

Same-Sex Divorce Ruling

The Mississippi Supreme Court issued its opinion in Czekala-Chatham v. State of Mississippi yesterday dealing with whether Mississippi Courts have the authority to grant a same-sex couple a divorce.  A copy of the opinion is located here.  The Court ruled that based on the recent U.S. Supreme Court holding that the divorce which had been dismissed by the trial court can go forward now.  I was the trial attorney on this case and wrote the brief.  There is a very interesting and detailed dissent by four of the justices dealing with whether the U.S. Supreme Court exceeded their authority and crossed over into legislative functions in the decision. 

Wednesday, November 4, 2015

Speaking Objections in Deposition

The Federal Rules of Civil Procedure  require that objections raised during a deposition be “nonargumentative” and “nonsuggestive.”  FED. R. CIV. P. 30(c)(2).  The defending lawyer is entitled to preserve the objection on the record, but he is not entitled to get in your way.  “Nonargumentative” means just that— no argument.  Nonsuggestive means that he cannot suggest an answer to the witness.  Courts today are generally on board with these concepts.  See Specht v. Google, Inc., 268 F.R.D. 596, 598 (N.D. Ill. 2010) (“Objections that are argumentative or that suggest an answer to a witness are called ‘speaking objections’ and are improper under Rule 30(c)(2).”); Amari Co. v. Burgess, 2009 WL 1269704, at *1 (N.D. Ill. Apr. 30, 2009) (“The gist of this rule is simple: unless the attorney claims the question calls for privileged information, the attorney must only state his objection and allow the client to answer.”); JSR Micro, Inc. v. QBE Ins. Corp., 2010 WL 1338152, at *10 (N.D. Cal. Apr. 5, 2010) (“Rule 30(c)(2) makes very plain that these objections were not a proper basis for an instruction not to answer.  Nor were they stated in a nonargumentative and nonsuggestive manner.”).

The form in which objections must be stated varies somewhat from court to court.  Many courts limit defending parties to simple, declarative statements, such as ‘objection, form’ unless  the examiner asks for the basis.  See Turner v. Glock, Inc., 2004 WL 5511620, at *1 (E.D. Tex. Mar. 29, 2004) (“As stated in Local Rule CV–30 . . . objections to questions during an oral deposition must be limited to ‘Objection, leading’ and ‘Objection, form.’”); Tuerkes-Beckers, Inc. v. New Castle Assocs., 158 F.R.D. 573, 575 (D. Del. 1993) (“Objections as to the form of the question should be limited to the words ‘Objection, form.’ All other objections should be limited to the word ‘Objection’ and a brief identification of the ground, preferably in no more than three words.”).  Some courts permit a one- or two-word explanation of the basis, at the time of form objection, such as: “Objection, compound.”   See Abu Dhabi Commercial Bank v. Morgan Stanley & Co., 2011 WL 4526141, at *8 (S.D.N.Y. Sept. 21, 2011) (“‘Objections should generally be limited to the statement “objection as to form and the basis for such objection, i.e., compound question . . . .”’” (quoting the Honorable Shira Scheindlin’s Suggested Rule of Discovery Practice)).

Tuesday, November 3, 2015

Discovery of Deposition Discussions

Once a deposition begins, the only discussions the attorney should have with the client are whether or not to assert privilege.  Other than that, any discussions the attorney has with the client are discoverable.  An article dealing with this is located here.  The theory is to keep an attorney from woodshedding his client during the deposition to change his testimony.  

Monday, November 2, 2015

Verdict of Interest

The Mississippi Supreme Court affirmed a $30 million bench verdict on Thursday in Sandoz v. State of Mississippi. Here is Court’s the opinion.  The case dealt with the overpricing of medications and Medicaid reimbursement. 

Friday, October 30, 2015

Deposition of Prisoner

Rule 30 (a) of the Mississippi Rules of Civil Procedure provides that:

"(a) When Depositions May Be Taken.  After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of thirty days after service of the summons upon any defendant, except that leave is not required (1) if a defendant has served a notice of taking deposition or otherwise sought discovery, or (2) if special notice is given under subsection (b)(2) of this rule.  The attendance of witnesses may be compelled by subpoena.  The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.".

I started thinking about this and what happens if a party is in prison?  This is particularly noteworthy with a divorce or a termination of parental rights.  Based upon this, the court has to grant leave to conduct the deposition and what terms the court will have it on.  On a practical standpoint too, the prison will have to be coordinated too since they have certain requirements also. 

Wednesday, October 28, 2015

Rule 5.1 Round 2

In April 2015, the MSSC promulgated MRCP 5.1, which put redaction requirements on parties electronically filing pleadings with certain data: “an individual’s social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number.”  To put it mildly, this was a disaster in practice and  the Court suspended the order five weeks later.

Currently, offered for comment is a new Rule 5.1. This time, the duty is on the clerks’ offices:
Rule 5.1. Privacy Protection for Filings Made with the Court
Beginning January 1, 2016, all courts and offices of a circuit or chancery clerk that maintain electronic storage or electronic filing of documents, as defined under section 9-1-51 of the Mississippi Code, and make those documents accessible online must conform with the privacy provisions of the Administrative Procedures for Mississippi Electronic Courts—specifically, Sections 5 and 9 therein.
Comments are due November 4.  To me, this potentially creates the same problem if an attorney in the future needs something on a case. 

Tuesday, October 27, 2015

Cell Phone Tracking

Last Thursday, the Mississippi Supreme Court granted cert in Fleming  v. State of Mississippi.  The issue the Court is reviewing is whether a lay witness can testify about tracking a cell phone’s use using cell phone towers.  The cert petition is located here

Monday, October 26, 2015

Rule Amendment

The Mississippi Supreme Court amended Rule 802 of the Mississippi Rules of Evidence.  The order is located here.  The amendment links up with Rule 32 of the Mississippi Rules of Evidence to now allow the testimony of a medical doctor to be admissible without his or her presence in Court. 

Friday, October 23, 2015


Be careful about the dangers of understaffing.  A complaint was recently filed in Jackson against a law firm stating a claim for understaffing which allegedly resulted in a missed statute of limitations.  A link to the complaint is here

Thursday, October 22, 2015

Custody and Visitation

On Tuesday, the Mississippi Court of Appeals decided Campbell v. Watts located here.  This was a case I got involved in post trial.  The Court of Appeals reversed and rendered the trial court's ruling on custody.  There is some good reading in the opinion on the standards to modify visitation as opposed to custody that is worth reading.  I normally plead modification of visitation as an alternative in modification of custody cases under the right set of facts.  Since the case is still pending, my general practice is not to elaborate more fully in posts.   

Tuesday, October 20, 2015

Tort for Private Organization

Last week, the Mississippi Supreme Court decided  Miss. High School Activities Assoc. v. Hattiesburg High School.   The case centered on whether relief was available in court over a decision of a private voluntary organization.    The Mississippi Supreme Court said no and found that:
"Nowhere in its complaint does HHS allege a breach of contract, a tort, fraud, or any other legally cognizable claim. Contrary to the dissents’ position, there simply is no cause of action for “arbitrariness,” in the absence of a contractual provision or some other legal duty requiring otherwise. For example, MHSAA could decide arbitrarily to paint all of its office doors chartreuse, but unless some contractual provision or other legal duty mandates otherwise, no cause of action arises. As such, HHS’s complaint for injunctive relief was not “predicated upon some legal or equitable claim which will, at some point, proceed to the merits,” and therefore was not within the Forrest County Chancery Court’s jurisdiction. In Re Bell, 962 So. 2d at 541."

Monday, October 19, 2015

Testimony Does Not Equal Proof

I heard an interesting comment last week which is so true to some degree.  The general comment was that testimony does not equal proof.  In the context, it dealt with accusations by one party against another with no proof other than the testimony.  Soon thereafter, there was testimony that denied all of the prior testimony.  The lesson here is that anyone can say anything.  Without some other proof, testimony alone may not be enough. 

Friday, October 16, 2015

Standing Mediation

The more I do domestic cases in Mississippi, the more I believe it may be time to look into a standing mediation order.  Many times issues start to narrow before trial.  The problem is that many times the issues could have been greatly narrowed a long time before then saving the parties a lot of time and money.  This is particularly true on property issues. 

Thursday, October 15, 2015

Hugging Suit

There has been some press recently over a family member suing a child for hugging her which resulted in her falling.   This apparently resulted in some broken bones.  There is an article at Lowering the Bar on it located here.  To me, this is a case with absolutely no jury appeal whatsoever. 

Wednesday, October 14, 2015

Malicious Prosecution

The Mississippi Court of Appeals decided Stratton v. Using yesterday located here.  The issue in the case was whether a compromise payment to settle a criminal prosecution later made it impossible to satisfy the standards to file a malicious prosecution suit.  The Court of Appeals ruled that the earlier compromise was not a favorable termination on the merits, and as such, the Plaintiff had not claim for malicious prosecution.

Tuesday, October 13, 2015

Tennessee Tort Resource List

John Day maintains a good list of Tennessee Tort Resource materials located here.  I own a copy of most of these and can vouch they are worth the money. 

Friday, October 9, 2015

New Standards on Third Party Custody

The Mississippi Supreme Court decided Irle v. Foster yesterday located here.  The issue was the standard required to award third party custody over the natural parents where the issue had been previously litigated.  The Supreme Court has stated now that:

"¶13. So we hold that in cases involving a third party and a natural parent—where the third
party has been before the court in a previous custody dispute over the child—the material
change-in-circumstances test applies.  A third party attempting to take custody from a natural
parent under those circumstances is required to overcome the natural-parent presumption and
to show a material change in circumstances from the previous decree."

Wednesday, October 7, 2015

Defining Neglect

The Mississippi Court of Appeals decided Carter v. Carter yesterday located here.  To my knowledge, this may be the first case to define what neglect is that would require the appointment of a guardian ad litem as opposed to just bad parenting.  The Court noted "Neglect is difficult to define and could arguably be present, to some degree, in mundane allegations of imperfect parenting that should not demand investigation by a guardian ad litem."

 The trial court went on and inferred that whether a child is neglected should be evaluated as defined in the Youth Court Act.  The Youth Court Act defines a neglected child as one:
(i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for his well-being; however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful under any provision of this chapter; or
(ii) Who is otherwise without proper care, custody, supervision or support;
(iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether the mental condition is having mental illness or having an intellectual disability; or
(iv) who, for any reason, lacks the care necessary for his health, morals or well-being.
Miss. Code Ann. § 43-21-105(l) (Supp. 2014).

Tuesday, October 6, 2015

Tennessee Government Tort Claims

Last month, the Tennessee Supreme Court decided Moreno v. City of Clarksville located here.    This case has one of the most detailed discussions I am aware of dealing with the interplay of the GTLA, Claims Commission, comparative fault, and the statute of limitations in Tennessee.  It almost reads like a law school exam problem.  John Day does a very good detailed discussion of the case that I cannot add much to located here

Monday, October 5, 2015

Suing a Dissolved Corporation

The Mississippi Supreme Court decided Williams v. Clark Sand last Thursday located here.  The issue in the case dealt with the time frame for a dissolved corporation to be sued.  The Mississippi Supreme Court found that:

"At common law, when a corporation dissolved, it no longer existed, and it could not be sued. But because of the harshness of this rule, Florida, like most states, has adopted a corporate-survival statute that allows plaintiffs to bring suit against a Florida corporation for up to four years after dissolution. This rule applies to claims that were unknown to the corporation at the time of dissolution. Here, sixteen plaintiffs sued Clark Sand Company, Inc., a Florida corporation, more than four years after the corporation’s dissolution. The circuit court judge therefore sustained Clark Sand’s motion for summary judgment. Finding no error, we affirm."

The case also cites to the relevant Mississippi statute on this area.  This is a good case to file away which can come in handy where there are companies that are administratively dissolved by the state for failure to pay annual fees. 

Thursday, October 1, 2015

Confession of Error on Appeal

In Mississippi, where a party concedes an issue raised on appeal, remand is proper.  Wackenhut Corp. v. Fortune, 87 So. 3d 1083, 1088 (¶11) (Miss. Ct. App. 2012).

Wednesday, September 30, 2015


Yesterday, the Mississippi Court of Appeals decided Carter v. Escovedo located here.  This was a case I got involved in post trial.  Ultimately, the Court of Appeals agreed with my contention that the visitation award was inadequate and even agreed that my client should potentially be awarded someone midweek visitation also. 

The Court stated: 

"On remand, the chancellor shall award at least five weeks of summer visitation to
Carter.  See Crowson v. Moseley, 480 So. 2d 1150, 1153 (Miss. 1985) (“[C]hildren at the
least are entitled to the company of their mother two full week[]ends a month during the
school year, with the visitation to terminate late Sunday afternoon as opposed to Sunday
morning, and a five-week period during summer vacation.”).  Since Carter usually works
weekends, on remand, the chancellor shall also revisit whether more time should be awarded
Carter during the week and if more holiday time should be awarded."

Tuesday, September 29, 2015

Alienation of Affection and Free Speech

I am working on a memorandum for a case I am defending.  It is rare I am the defense attorney.  The issue is whether free speech concerns bar a claim for alienation of affection.  The argument is going to be that the courts cannot be used even in a civil context to deter free speech of a private consensual nature.  The only way, in my opinion, to create civil liability in this context is if there is a claim for defamation and/or slander.  I will publish the motion on here once it is on public record with the court. 

Monday, September 28, 2015

Mental Health Privilege

There is a common belief for some reason that mental health records are always discoverable in a custody case.  This is not the case.  Rule 503 of the Mississippi Rules of evidence states that the records are not privileged related to custody.  However, the records may not be relevant.  The comments provide that under  subsection  (d)(4),  when  determining  whether  records  are  relevant  to  a custody,  termination,  or  adoption  action,  some  of  the  factors  courts  should  consider    include whether:  (1)  the  treatment  was recent  enough  to  be  relevant;  (2)  substantive  independent evidence of serious impairment exists; (3) sufficient  evidence is  unavailable elsewhere;  (4) court  ordered  evaluations  are  an  inadequate  substitute;  and  (5)  given  the  severity  of  the alleged disorder, communications made in the course of  treatment are likely  to be relevant.

Friday, September 25, 2015

Affidavit of Records Custodian Form

I have made a form for an affidavit of records custodian that may be useful.  A link to it is here. 

Thursday, September 24, 2015

Ticket Impeachment

The Mississippi Court of Appeals decided Owens v. Kelly on Tuesday located here.  The issue dealt with whether the giving of a ticket was proper impeachment.  The Court of Appeals affirmed finding it was.  The relevant language of the case states:

"On appeal, the plaintiff argues that the trial judge erred by allowing Wilburn to be cross-examined about, and other limited references to, the fact that she was cited for failure to yield and paid a fine rather than contesting the citation. We conclude that Wilburn’s payment of the ticket was proper impeachment of her testimony, in which she generally sought to blame Taylor for the wreck. Therefore, the judge did not abuse his discretion by allowing Wilburn to be cross-examined on the subject. In addition, considered in the context of all the evidence at trial, and given that Wilburn’s payment of the ticket was proper impeachment, any other mention of the ticket during the course of trial was harmless, even assuming that it was error. Accordingly, we affirm."

I can see a bunch of plaintiff and defense attorneys begin to use this in various ways. 

Wednesday, September 23, 2015

Review of Jury Instructions on Appeal

Below is a summary of the law on appealing jury instruction which may be helpful.

“The giving or refusal of jury instructions by a circuit court is reviewed under an abuse-of-discretion standard.”  Howell v. Equip. Inc., 170 So. 3d 592, 599 (¶16) (Miss. Ct. App. 2014).  “[T]his Court does not review jury instructions in isolation; rather, they are read as a whole to determine if the jury was properly instructed.”  Mitchell v. Barnes, 96 So. 3d 771, 775 (¶9) (Miss. Ct. App. 2012) (quoting Burton ex rel. Bradford v. Barnett, 615 So. 2d 580, 583 (Miss. 1993)).  “Defects in specific instructions do not require reversal where all instructions taken as a whole fairly—although not perfectly—announce the applicable primary rules of law.”  Id. (internal quotation marks omitted). 
“However, if those instructions do not fairly or adequately instruct the jury, we can and will reverse.”  Id. "When analyzing the grant or refusal of a jury instruction, two questions should be asked: 
Does the instruction contain a correct statement of law and is the instruction warranted by the evidence?”  Mitchell, 96 So. 3d at 775 (¶9) (quoting Beverly Enters. Inc. v. Reed, 961 So. 2d 40, 43 (¶8) (Miss. 2007)).  With respect to the latter question, a “defendant is entitled to have jury instructions given which present his theory of the case” when there exists a “foundation in the evidence” for the instructions.  Coho Resources Inc. v. McCarthy, 829 So. 2d 1, 23 (¶69) (Miss. 2002) (quoting  Higgins v. State, 725 So. 2d 220, 223 (Miss. 1998)).

Tuesday, September 22, 2015

Who Gets the House?

The marital home or residence is often the largest marital asset many families have.  Many times it is not reasonable, fair, or financially sound for one or either spouse to retain the marital home after divorce. And ultimately, it is up to the chancellor in the divorce proceeding to determine who gets what in a divorce, including who gets the house.  In Mississippi, chancellors have vast discretion in awarding certain marital property to either divorcing spouse. Johnson v. Johnson, 650 So. 2d 1281, 1288 (Miss. 1994) (citations omitted); Boykin v. Boykin, 445 So. 2d 538, 538-39 (Miss. 1984) (“there is no reason why a chancellor, under the broad discretion granted him, cannot in his decree award possession of the marital residence to either party.”). As it pertains to awarding the marital home to either spouse, chancellors generally consider the equitable distribution factors laid out in Ferguson and they also “consider all the awards to the payee[recipient] spouse and the concomitant burden placed upon the payor spouse.” Brooks v. Brooks, 652 So. 2d 1113, 1124 (Miss. 1995) (referring to Brendel v. Brendel, 566 So. 2d 1269 (Miss. 1990)); see generally Ferguson v. Ferguson, 639 So. 2d 921 (1994). Essentially, when awarding the marital home to either spouse, chancellors are charged with determining what is fair as well as assessing whether an award of the marital home to one spouse will place an unreasonable burden (usually an unreasonable financial burden) on the awarding spouse. Thus, if a spouse is going to fight to keep the marital home in a divorce, he or she should have a good reason to do so and should make sure that he or she can afford to keep the house.

Monday, September 21, 2015

Clerk Default

There is a big difference in a clerk's default and a default judgment.  With a clerk's default only, there is an extremely liberal standard in setting it aside. Rule 55(c) of the Mississippi Rules of Civil Procedure draws a clear distinction between setting aside an entry of default and setting aside a judgment of default. The Mississippi Supreme Court previously has held "there is a more liberal standard for setting aside a default than the standard for setting aside a default judgment." Windmon v. Marshall, 926 So.2d 867, 871 (Miss.2006) (quoting King v. Sigrest, 641 So.2d 1158, 1162 (Miss.1994)).   They further stated, "`[G]ood cause shown' ... requires the moving party to provide an explanation for the default or give reasons why vacation of the default entry would serve the interests of justice." Id. (quoting Allstate Ins. Co. v. Green, 794 So.2d 170, 179 (Miss.2001) (Waller, J., concurring)).

My reading of this is that more or less any reasonable excuse is pretty good.  However, the standard is a lot higher with an actual default judgment already entered.  In that instance, you need a really good excuse and normally a good faith colorable defense.  Absent that, the default normally stands. 

Friday, September 18, 2015

Waiver of Affirmative Defense

The Mississippi Supreme Court yesterday decided Hanco v. Goldman located here.  The issue was whether the exclusivity of the worker's compensation statute can be waived?  The Mississippi Supreme Court found that the Defendant waived it by actively litigating the case and failing to raise the issue.   

Thursday, September 17, 2015

Attorney's Fees

Yesterday, I discussed Branch v. Branch located here.  One of the issues was the payment of attorney's fees by the Ms. Branch's parents.  In Paragraph 61, the Court of Appeals noted:
"The chancellor did not, however, address the payments of Lauren’s attorney’s fees by
her parents and Curt’s ability to pay the fees.  In determining attorney’s fees, the chancellor
must determine the parties’ relative abilities to pay.  McKee, 418 So. 2d at 767.  Despite this
omission in the findings, the chancellor accurately relied on the financial position of Lauren
and correctly awarded her attorney’s fees."

The last sentence to me is what is interesting.  It is unclear to me if you can only consider the individual parties' ability to pay themselves or if you can consider the ability of a party to get the funds from alternate sources.    From reading the opinion, it seems to imply that you are not to consider the payment of attorney's fees by a third party. 

Wednesday, September 16, 2015

Travel Expenses

The Mississippi Court of Appeals decided Branch v. Branch yesterday located here.  One of the issues in the case was the travel expenses of the noncustodial parent to exercise visitation.  This case has probably the most detailed discussion of the issue I am aware of.  Ultimately the trial court affirmed the noncustodial parent being responsible for all transportation costs despite the fact it was a twelve (12) hour round trip.  The Court of Appeals left open however that a modification may be appropriate which is largely why it was being affirmed.  Based on the ages of the children and the locations to an airport, I think they could get plane tickets from Jackson to Nashville cheaper than driving.  A total of twenty-four hours driving on a weekend for visitation is too much for a parent and a child both. 

Tuesday, September 15, 2015

Website of Interest

For those interested in the civil justice system, Tort Deform is a good site to visit located here.  The website discusses the politics and other aspects of tort reform along with the dangers of it. 

Monday, September 14, 2015

Other Hearsay

Larry Primeaux wrote an interesting article this morning dealing with "other hearsay" under 803 (24) of the Mississippi Rules of Civil Procedure.  The article is located here.  The issue in the article was advanced notice of other hearsay exceptions.  I was wondering how from a practical standpoint what would be the best way to do the notice?  What I came up with was to draft up a detailed notice which follows that rule and then either file that or a notice of service in the court file.  Sometime before trial then, a hearing should be had on the record regarding the matter so that either side can prepare for it. 

Friday, September 11, 2015

App List

I got an IPad a few days ago and am still experimenting with it.  In the next week or so, I hope to put out a list of IPad apps which I have found useful.  I have until now been an exclusive Droid user.  I will say that so far Apple does have a better selection of apps especially for legal purposes. 

Thursday, September 10, 2015

Failing to File Motion to Reconsider

The Mississippi Court of Appeals decided Anderson v. Anderson on Tuesday located here.  Mr. Anderson challenged the chancellor's distribution of certain retirement accounts.  The Court found that the issue had been waived by the trial court attorney failing to file a motion to reconsider.  There is still a line of cases that say it is not necessary to file a motion to reconsider when appealing a chancery judgment.  This is an issue the Mississippi Supreme Court needs to clarify at some point. 

Wednesday, September 9, 2015

Debt Proof

The Mississippi Court of Appeals decided Norris v. Norris yesterday located here.  The issue in the case was the chancellor awarded a $5000 judgment for debts allegedly incurred during the marriage to the wife.  The problem, there was no proof other than testimony regarding the debt.  The Court of Appeals stated: 

"Jacqueline did not introduce any documentary evidence to support her claim. Also, the  record  before  us  does  not  indicate  that  Jacqueline  filed  a  financial  statement,  as  required by Rule 8.05 of the Uniform Chancery Court Rules.  Had  she filed a Rule 8.05 statement, there may have been evidence sufficient to support the chancellor’s finding.  However, we simply  cannot  find  the  evidence  that  would support  the  chancellor’s  award  of  “$5,000  .  .  .  as equitable  distribution  of  the  parties’  debt”  in  the  record.    Indeed,  there  is  very  little  evidence of  the  marital  assets  and  debt.    Instead,  Jacqueline  estimated  that  Dwayne  should  have contributed  $3,000  for  expenses.    It  is  not  clear  why  the  chancellor  awarded  Jacqueline $5,000.

¶13. Because we conclude that the chancellor’s findings are not supported by substantial
evidence,  we  must  also  find  that  the  chancellor’s  award  of  $5,000  to  Jacqueline  was
manifestly  wrong."

 This looks to me like with no proof of the debt amount, testimony is insufficient.  I think a Rule 1006 summary of the debt with the records attached would have remedied this problem. 

Tuesday, September 8, 2015

New Trial

The Mississippi Supreme Court discussed last week what is necessary in order to grant a new trial in McIlwain v. Natchez located here“[A] new trial becomes appropriate when a trial court determines that error within the trial mechanism itself has caused a legally incorrect or unjust verdict to be rendered.” White, 932 So. 2d at 33. Courts have granted new trials “whenever convinced, from the evidence, that the jury has been partial or prejudiced, or has not responded to reason upon the evidence produced.” Beard v Williams, 172 Miss. 880, 884 161 So. 750, 751 (1935). A new trial may be necessary if mistakes were made in conducting the trial or in applying the law. White, 932 So. 2d at 33.  Ultimately, the Mississippi Supreme Court granted a new trial as to one of the Defendant after a hung jury. 

Thursday, September 3, 2015

Wrongful Death - Fringe Benefit Calculations

The Mississippi Supreme Court decided McIlwain v. Natchez Community Hospital, Inc., et. al today located here.  One of the issues in the case was whether the economist could use possible fringe benefits in the calculation of the lost income of a deceased child.  The Court ruled that fringe benefits cannot be calculated into the equation unless the deceased was actually receiving them. 

Wednesday, September 2, 2015

Separate Maintenance

The Mississippi Court of Appeals decided Spotswood v. Spotswood yesterday located here.  The issue in the case was what authority the court had to order a party to do anything in the absence of minor children after finding no grounds for divorce or separate maintenance.  The Court of Appeals ruled that the chancery court had no authority to order the parties to do anything with no finding of divorce or separate maintenance.  The husband had originally been ordered to pay one-half the mortgage and reimburse the wife for some insurance.  This appears to be the correct result legally.  I still see the argument from a lot that people who do not want a divorce automatically think they are entitled to separate maintenance.  Does not work that way. 

Tuesday, September 1, 2015


Sometime in the next month or so, I am planning on starting to experiment with using an IPad at trial.  Several of the trial presentation software programs appear to be what I need for the more complex trials.  The Microsoft Surface tends to still be the most functional tablet for getting orders done and such.  However, they still have no trial presentation software.

Monday, August 31, 2015

Learned Treatises

Mississippi Rule of Evidence 803(18) provides that: 

"(18) Learned Treatises.  To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. Treatises used in direct examination must be disclosed to opposing party without charge pursuant to discovery.". (emphasis added)

There are a couple of minor points on the last part.  If a treatise is used in direct examination, it must be disclosed.  However, if one is used in cross, it need not be disclosed.  However, it may be hard to lay a foundation that the item is in fact a learned treatise if no foundation is laid.  The second point is that the item may not be entered into evidence.  However, there is some authority from other jurisdictions that indicate if the item is published to the jury, it can go into evidence.  There is no authority one way or the other on this in Mississippi that I have been able to find. 

Friday, August 28, 2015

Bar Economic Survey

This week the Mississippi Bar released the results from the 2014 Mississippi Bar Economic Survey. Here it is. The last survey was for 2011. To me, the results look pretty skewed.  There are obviously attorneys who make a lot, that brings the median up a lot.  On the bright side, there are some areas regarding quality of life that appear to be better. 

Thursday, August 27, 2015

Oral Argument of Interest

The Court of Appeals is set to hear oral argument today in Carlson v. Brabham.   The case deals with the rights of an unmarried long term partner.  This is probably going to be the next hot issue in family law.  Less and less people are getting married today.  The Court will hopefully give some guidance on this issue once an opinion comes out.

Wednesday, August 26, 2015

Advising on Appeals

I still do a lot of appeal work.  In criminal cases, there is what is called a Lindsey brief.  This is a brief that says there were no appealable issues found and gives the individual defendant a chance to file his or her own brief.  In civil appeals, there can be a similar issue.  Many times, I have to go over the case in detail with potential clients in order to get an idea of the potential appealable issues.  If you are still in the ten (10) day window for post trial motions, I don't see anything that prohibits additional testimony either.  Unfortunately, until you actually have a full transcript of the trial, there is no way to fully advise a client one way or the other unless you are the trial attorney.  As such, many times a client is advised that they cannot be fully advised.

Tuesday, August 25, 2015

Blog of Interest

An evidence blog located here has several good articles of interest.  Several of them address issues which are still unresolved and on the cutting edge of legal theory. 

Friday, August 21, 2015

Cert Grant of Interest

The Mississippi Supreme Court granted cert in Perriece Collins v. Toikus Westbrook, M.D.  yesterday.   The link is to the Court of Appeals opinion.  From reading the opinion and the cert request, it looks like an extension should have been granted to me.  This was the case where the father Dr. Westbrook was served instead of the son Dr. Westbrook.  The trial court originally granted a motion to dismiss finding that the defendant had not been served and there was not good cause to extend the time for service. The Miss. Court of Appeals affirmed. In doing so, the Court stated, “While this Court may not have made the same decision as the trial court, we cannot say the trial court abused its discretion.”   The Court of Appeals opinion was split.  I would predict a reversal. 

Thursday, August 20, 2015

Trial Course

Trial Theater offers one of the better trial courses.  A link to it is here.  For the money, this is the best one I have found.

Wednesday, August 19, 2015

Amendment of Pleadings

In amending pleadings, the Mississippi Rules of Civil Procedure difference slightly from the Federal Rules.  The Federal Rules permit one (1) amendment as a matter of right before any responsive pleading is filed.  However, the Mississippi Rules place no such limitations according to the comments.  As such, if no responsive pleading has been filed, in theory you could file as many amendments as you want. 

Tuesday, August 18, 2015

Irreconcilable Differences

Parties can always divorce by irreconcilable differences in Mississippi.  I am always amazed at people who want a divorce, insisting it be granted to them on fault based grounds.  All an irreconcilable differences divorce does is guarantee the parties a divorce.    I heard about a case yesterday where both parties pleadings were dismissed with no award (including custody) of any kind to either party since one party insisted on a fault divorce. 

Monday, August 17, 2015

Engagement Ring

The Mississippi Court of Appeals decided Lomax v. Lomax last week located here.  The issue in the case was whether an engagement ring was martial property.  The court ultimately found it was separate property given before the marriage.  It had all the criteria of a gift.  This was despite the fact that the husband claimed it was a family heirloom that the wife was only to keep temporarily. 

Friday, August 14, 2015

Discovery Issue in Divorce

The Mississippi Supreme Court granted cert yesterday in Moseley v. Smith which presents an interesting issue regarding whether there is a discovery rule (tolling the statute of limitations ) for violations of a divorce agreement.  The Court of Appeals founds that there is a discovery rule.  Here’s the COA opinion.  Here’s the cert. petition.

Thursday, August 13, 2015

Same-Sex Adoption Ban Challenged

Mississippi currently still bans same-sex adoption.  Suit has been filed to challenge this.  A newspaper article discussing the challenge is located here.  According to the article, Mississippi is the only state in the country left with this ban still in place.  In light of recent United States Supreme Court rulings, I doubt the law stands. 

Wednesday, August 12, 2015

Free CLE

The Desoto County Bar is hosting a free CLE on August 14, 2015 at the Hernando public library from 10:00 A.M. until 1:00 P.M.  If anyone is interested in going, email me and will put you on the registration list.  The topics will be circuit and chancery court practice. 

Tuesday, August 11, 2015

Personal Injury Awards and Divorce

Divorce and personal injury awards often overlap for some strange reason. This was the issue in  Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994). The issue then arises whether a particular spouse’s personal injury award, settlement money, or any remainder thereof constitutes marital property subject to equitable distribution.   Following the trend in Georgia and North Carolina courts, in 1999, the Mississippi Supreme Court adopted a specific approach–called the “analytic approach”–in assessing whether a personal injury award, or whatever sum remains outstanding at the time of divorce, constitutes separate or marital property. Tramel v. Tramel, 740 So. 2d 286, 290 (Miss. 1999). Under the analytic approach, Mississippi courts must delineate between certain “detailed portions” that make-up a given personal injury award or settlement when classifying property. Id. As the Tramel court declared:
(1) that portion of the proceeds award allocable to compensation to the initially injured spouse for pain, suffering, and disfigurement should be awarded in its entirety to the injured spouse;
(2) that portion of the proceeds allocable to lost wages, lost earnings capacity, and medical and hospital expenses, to the extent those apply to the time period of the marriage, are marital assets and are to be divided according to equitable distribution principles; and (3) that portion of the proceeds allocable to loss of consortium should be awarded in its entirety to the spouse who suffered that loss.
Id. at 291. Thus, the amount of a given personal injury award designated to account for pain, suffering, or disfigurement incurred by the injured spouse and any award for post-divorce wages and medical expenses exclusively constitute separate property of the injured spouse that is not subject to property division. Id. Likewise, any award for loss of consortium (loss of companionship and loss of love and affection) constitutes the separate property of the non-injured spouse, which is not subject to property division; while on the other hand, an awarded amount for lost wages and medical expenses during the marriage constitutes marital property subject to property division. Id.

It is important to note that the analytic approach is not so easy to apply in practice because some personal injury awards, and especially many financial settlements, may allocate a given amount for some other reason that does not fit into one of the “detailed portions” or categories outlined in Tramel. Thus, a personal injury award or settlement will not always neatly fit into one of the Tramel categories. In these events, the chancery courts will rely on their broad discretion in dividing the marital estate on a case-by-case basis.

Monday, August 10, 2015

Discovery of Attorney's Fees

I have been looking at the issue on the discovery of attorney's fees in cases for a while.  From prior experiences and review of the caselaw, if an individual pleads a request for recovery of attorney's fees, this makes the hourly rate, amount of time, and various other things discoverable.  However, I think there is still a pretty good argument that portions of the itemized bill may not be discoverable depending on how detailed it is.  If the bill deals with strategy sessions and goes into it specifically, probably not discoverable.  If the bill does not, probably is.  This is one area where less detail may be better for discovery issues. 

Friday, August 7, 2015

Chancery Approval

Yesterday, the Mississippi Supreme Court decided In the Matter of the Guardianship of O.D. located here.  The case dealt with the chancery court approving a minor's settlement.  An insurer removed a case to federal court and later the case was remanded once it was determined there was no basis for removal.  The chancery court then awarded $18,000.00 in sanctions for the removal.  This was ultimately affirmed.  The court reasoned that two decades of caseload required chancery approval and that the removal was for the purpose of delay. 

Wednesday, August 5, 2015


I was reading an article yesterday dealing with attorneys wanting to create a "Moneyball" type database to record wins, losses, and judge tendencies in cases.  Frankly, I think a lot of attorneys would love access to that type information and be willing to pay for it.  I have used similar data before to craft arguments based on a judge's prior decisions. 

Tuesday, August 4, 2015

Proximate Cause

On July 23, 2015 Circuit Court Judge David Strong entered a $635,325 judgment in McCrory v. Lincoln County School District. The accident happened in 2011. The decedent, Tammy Jo Brown was traveling on a road in Wesson when she collided with a Lincoln County school bus traveling in the opposite direction. The school bus was two feet over the center line at the time of the collision. Brown died at the scene.  Brown was speeding: 68 mph in a 20 mph zone before the collision and 52 mph at the time of the collision. The school bus was also speeding: 35 mph. The bus driver saw the car approaching from two hills away, yet didn’t get into her own lane.   The Court apportioned 90% fault to the bus driver and 10% fault to Brown. The Court assessed damages as $205,917 in economic damages and $500,000 in loss of society and companionship.  Due to Brown’s 10% fault, the damages were reduced and judgment entered in the amount of $635,325.  This case illustrates why proximate cause is so important in a case.  The trial court found that the acts of the bus driver were the reason the accident occurred.  The order on the case is located here

Monday, August 3, 2015

Peer Review of Expert Testimony

The Mississippi Supreme Court decided Memorial Hospital at Gulfport v. White last Thursday located here.  The trial court had returned a Plaintiff verdict which the Defendant attacked on appeal by arguing the expert testimony of the Plaintiff was inadmissible since it was not supported by medical literature.  The following quote is the analysis of that issue which is worth filing away:   

“…under our precedent, medical experts are not required to support their opinions with medical literature.  We did state in Hill v. Mills that “when an expert (no matter how qualified) renders an opinion that is attacked as not accepted within the scientific community, the party offering that expert’s opinion must, at a minimum, present the trial judge with some evidence indicating that the offered opinion has some degree of acceptance in the scientific community.”  But we made it clear that we were not creating a requirement that an expert’s opinion be supported by peer-reviewed literature.  Indeed, we stated that we were not retreating from our ruling in Poole, where we held that peer-reviewed literature and publications are not absolutely required, and their absence does not constitute automatic inadmissibility. Here, Memorial did not challenge the opinions of White’s experts as contrary to the scientific community.  And it did not present medical literature that contradicted the opinions of White’s experts.  Rather, this case presents nothing more than a classic example of a  “battle of the experts.”  White presented experts who supported a reasonable probability of a substantially better outcome, whereas Memorial offered expert testimony that supported only a potential chance of a substantially better outcome.  And as we consistently have held, the fact-finder—in this case, the trial judge—determines the winner of a battle of experts.”

Friday, July 31, 2015

Slayer Statute Claims

The Mississippi Supreme Court decided the Estate of Armstrong v. Armstrong yesterday located here.  This was a case of first impression dealing with whether a mentally incompetent person can be disinherited under the Mississippi Slayer Statute when they cause the death while mentally ill.  The Mississippi Supreme Court reversed the trial court and found that killing an individual while mentally ill does not qualify as willful which prevents the person from being disinherited. 

Thursday, July 30, 2015

Removal Based on Punitive Damages Claim

A case may be removed to federal court based on complete diversity of citizenship and more than $75,000.00 in controversy.  Does an unspecified amount of damages allow jurisdiction?  If there is a claim for punitive damages, yes.  An unspecified demand for punitive damages alone is sufficient to meet the jurisdictional limit of this Court pursuant to Mississippi law. See St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998); Myers v. Guardian Life Ins. Co. of America, Inc., 5 F. Supp. 2d 423, 428-429 (N.D. Miss. 1998); Marcel v. Poole Co., 5 F.3d 81, 84-85 (5th Cir. 1993); Allstate Ins. Co. v. Hilben, 692 F. Supp. 698, 701 (S.D. Miss. 1988); see also, Montgomery v. First Family Fin. Serv. Inc., 239 F. Supp.2d 600,605 (S.D. Miss. 2002) (Mississippi federal courts consistently hold that an unspecified amount claimed as punitive damages under Mississippi law is deemed to satisfy the amount in controversy requirement for federal jurisdiction).

Wednesday, July 29, 2015

Equity and the Law

It  has  been  said:  “[E]quity  must  follow  the  law.    But  where  the  law  provides  no
remedy,  equity may  do so.” To that  since “equity must follow the  law,” where the law prohibits a remedy, equity may not do so.   This was illustrated in a case the Mississippi Court of Appeals decided on Tuesday which was Mosley v. Triangle Townhouses, LLC located here.  The issue in the case was whether an individual could get a finder fee in the absence of a real estate license.  The Court of Appeals affirmed the trial court in finding that since the plaintiff was not a licensed agent, he had no legal right to a fee and equity could not create a remedy in violation of law. 

Tuesday, July 28, 2015

Reasonable Cost of Medical Bills

The Mississippi Supreme Court issued the following order on a case last Thursday located here.  The order reversed a circuit court judge's refusal to allow a defendant to depose a hospital regarding their fee schedule to show whether certain charges were reasonable and/or necessary.  This potentially opens Pandora's box on an accident case if a defendant wants to go through the expense.  I would expect there to be a bunch of motions in limine filed by both sides on these type issues.   

Monday, July 27, 2015

Need for Legislative Changes

I attended Debbie Bell's family law seminar on Friday.  One of the issues was dealing with the legalization of same-sex marriage now.   Approximately 483 Mississippi statutes refer to the marriage relationship as between husband and wife.  As a result, many of the statutory rights of a same-sex spouse may not apply as many of the statutes are to be strictly construed.  I am expecting a ton of litigation at some point over the meaning of the statutes and whether strict construction will be applied or a more liberal interpretation. 

Thursday, July 23, 2015

Waiver of Objections to Discovery

There is federal authority that provides that failing to object to discovery requests during the thirty (30) days to respond or to request an extension waives any objections.  There is no law dealing with this in Mississippi Courts but most judges take the position that as long as parties agree on a set time frame to respond, not objections are waived.  There is law to the contrary though.  Courts have found objections waived, including those based on attorney-client privilege and the work-product protection, where a party serves no response at all for a lengthy time after a response is due, where the party fails to provide a privilege log, and where the nature of the information requested suggests that an objection would normally be made. See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (stating that "a failure to object to discovery requests within the time required constitutes waiver of any objection"); Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981) (finding that untimely service of responses to interrogatories waives objections where no response or objection at all was provided); see also Horace Mann Ins. Co., 238 F.R.D. at 538 (holding an untimely assertion of attorney-client privilege was waived when asserted twenty-two days late, without a privilege log, and where the dispute by its very nature involved communications between battling insurance companies and their lawyers); Pham v. Hartford Fire Ins. Co., 193 F.R.D. 659, 661-62 (D. Colo. 2000) (finding a claim of privilege waived where the defendant failed to file objections to interrogatories until 71 days after the interrogatories were served); Smith v. Conway Org., Inc., 154 F.R.D. 73, 76 (S.D.N.Y. 1994) (deeming waived a work-product objection asserted nearly four months after the document request was served).