Thursday, April 30, 2015

Judicial Notice

Under Rule 201 of the Rules of Evidence, a court can take judicial notice of certain facts.  To me this also includes statutes dealing with taxation and such.  After some deep thought, I believe a court can take judicial notice of certain statutes and/or tax regulations and use those in trial which may cut down on CPA testimony being necessary. 

Wednesday, April 29, 2015

Out of Time Appeal

I have had several posts about out of time appeals here lately.  It seems this is getting to be an issue as many people are missing the deadlines.  This was the issue in a Court of Appeals case yesterday called Bruton v. Bruton located here.  This case has one of the more detailed discussions of untimely appeals and the effect of the trial courts jurisdiction to extend the time for a notice of appeal.    If you read the case closely, the excusable neglect standard is extremely high. 

Tuesday, April 28, 2015

Limited Scope Representation

The Mississippi Rules of Professional Conduct provide for limited scope representation.  Rule 1.2 of the Mississippi Rules of Professional Conduct provides that:  "(c)  A lawyer may limit the objectives or scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent."  With the economy like it is, this is a good option for some clients.  I recently undertook representation for the sole purpose of filing and arguing post-trial motions.  This type of unbundling of legal services gives more people access to court while also giving attorney some additional work without getting pulled into full scale litigation. 


Monday, April 27, 2015

Rehearing of Interest

The Mississippi Supreme Court decided Sanderson v. Sanderson located here back on December 11, 2014.  The part of the case that has potentially opened Pandora's box is that the court reversed the case in part for the trial court to consider whether the prenuptial agreement was substantively unconscionable.  A rehearing on the case has been filed here.  There are several really good policy arguments in the rehearing.  The decision certainly makes it more difficult to draft and advise a client on a prenuptial.  If rehearing is not granted, I suspect the only way to make one ironclad is to have it approved by the court prior to the marriage. 

Friday, April 24, 2015

Experts in a Criminal Case

The Mississippi Supreme Court decided an interesting criminal case yesterday which is Isham v. State located here.  The case deals with a felony child abuse case.  The case held that the defendant was entitled to funding for an expert to refute the allegations of abuse.  This may have some carryover into a civil domestic matter where criminal charges are pending at the same time. 

Thursday, April 23, 2015

Certiorari Finalized

I finished up my certiorari motion I was working on yesterday.  A copy is located here.  A couple of the current conflicts in the law are noted in there that may be of interest.  Hopefully we will get some clarification in a few months if it is granted. 

Wednesday, April 22, 2015

Writ of Certiorari

I am working on a writ of certiorari this morning on a case.  Normally to have one granted, it is best to show that the case raises policy concerns, the caselaw is in conflict, or alternatively that equity demands it in some way be reviewed.  

Tuesday, April 21, 2015

Proof of Residency

Mississippi and most other states require at least six (6) months of residency prior to filing for a divorce.  Sometimes disputes break out over whether a party is a resident or not.  Located here is a form that Nevada uses that may be helpful in these situations.

Monday, April 20, 2015

Right to Be Present

I am working on a brief where the legal issue is the right of a party to be present for the entire trial.  Part of due process and a right of confrontation requires that a party be allowed to be present.  Obviously, a party can act in a way in the courtroom to authorize his or her exclusion.  However, merely because a witness may be uncomfortable or even traumatized is not a sufficient basis to exclude a party.  The comments to Rule 615 of the Rules of Evidence seem to indicate this.  This issues does not seem to have been expressly raised in a Mississippi case but the principal seems to be present in a number of cases. 

Friday, April 17, 2015

Error by Clerk

The Mississippi Supreme Court decided DeSoto County, Mississippi v. T.D. and Aaron Dennis located here yesterday.  The issue was an error by a Justice Court clerk in failing to cancel a warrant.  The trial court had denied summary judgment and the county filed an interlocutory appeal arguing that sovereign immunity prohibited the suit.  The Mississippi Supreme Court revered and rendered the judgment.  The relevant language is below:

"Section 11-46-9 grants immunity to DeSoto County if: (1) its justice court clerk was “acting within the course and scope of [her] employment or duties” (there is no dispute that she was), and (2) the claim arises “out of a . . . judicial action or inaction, or administrative action or inaction of a . . . judicial nature . . . .”  We find that the Legislature could not have chosen language that more precisely and clearly provides immunity to the clerk. The statute uses no words of limitation. It provides immunity for all claims that arise from any “judicial action or inaction, or administrative . . . inaction of a . . . judicial nature . . . ."

Thursday, April 16, 2015


I had a case recently where the opposing party filed a cross-appeal late.  As a result, I filed a motion to dismiss which was granted.  A copy of the order is here.  All the relevant law is in the opinion which may be good to file away somewhere.

Wednesday, April 15, 2015

Effect of Appeal on Lower Court Relief

In Mississippi, the caselaw is a little sketchy on what affect an appeal has on the ability of the lower court to change the judgment.  The Mississippi supreme court has held that ordinarily the filing of a notice of appeal transfers jurisdiction of a matter from the lower court to the appellate court, and the lower court no longer has the authority to amend, modify, or reconsider its judgment. McNeese v. McNeese, 129 So. 3d 125, 128 (¶7) (Miss. 2013). If an appeal has no supersedeas bond, as in this case, a party may execute on the judgment, but the lower court cannot “broaden, amend, modify, vacate, clarify, or rehear the decree.” McNeil v. Hester, 753 So. 2d 1057, 1076 (¶68) (Miss. 2000).  My reading of this is that the trial court can still enforce the judgment through contempt power.  However, some commentators including noted fellow blogger Larry Primeaux disagree.  The biggest question I have is what happen if say a custody case is on appeal and it is determined that one parent is abusing a child?  Can the court do nothing, or can you file a separate action for relief outside of the case that is on appeal?  There is still some old caselaw that seems to give the trial court the ability to fix some problems while an appeal is pending.  The issue is pretty rare, but with the right fact pattern some relief can be obtained.  The flip side of the issue is, if the trial court has no jurisdiction, could you file for a modification in the appellate court with a request for the Court of Appeals to hear it or transfer the case to the trial court.  My gut says yes with the filing of a possible interlocutory appeal to get some action by a court no matter which one it is. 

Tuesday, April 14, 2015

Hinds County Public Defender Mess

There is an ongoing dispute with the Hinds County public defender's office and Judge Weill.  The initial response filed by Judge Weill is very interesting and detailed.  It is located here .  Apparently he is basing his authority on the right to remove counsel for being ineffective.  There are some interesting procedural issues discussed in great detail in the response which are worth reading. 

Monday, April 13, 2015

Divorce Reading Material


Books for Coping with Divorce

Click each title to view its description at
Crazy Time by Abigail Trafford
Living from the Inside Out by Teresa McAlister Adams
The Five Love Languages by Gary Chapman
God Calling by A.J. Russell, ed.
How to Make Love All the Time by Barbara DeAngelis, Ph.D.
Man’s Search for Meaning by Viktor E. Frankl
Mars & Venus Starting Over by John Gray, Ph.D.
There’s Hope After Divorce by Jeenie Gordon
Tuesdays with Morrie by Mitch Albom
The Verbally Abusive Relationship by Patricia Evans
When Bad Things Happen to Good People by Harold S. Kushman
When the Vow Breaks by Joseph Warren Kniskern

Friday, April 10, 2015

Goose Liability

The Mississippi Supreme Court granted rehearing on Olier v. Bailey located here.  The case involved an individual who was hurt on the property of another by the wild geese that were kept on the property.  Apparently, they were domesticated to some degree.  The Mississippi Supreme Court affirmed that this is not a premises liability claim but reversed on the grounds that there were issues of fact concerning whether the geese had a dangerous propensity.  The quote to note from the opinion is:

"The question is not whether Bailey breached her duty of care toward Olier as a landowner, but as an animal owner. The geese were not a condition of the land to which such a duty attached. The two torts exist independently of one another. One does not have to have been injured on another’s property to maintain a civil action for damages caused by a defendant’s animal. The dangerous-propensity theory of liability exists independently of premises liability, and Bailey’s duty of care as an animal owner is different than her duty of care as a landowner."

Somewhere there is a joke about this being the case of the wild goose chase.  It is funny to read, however, not funny if you are the person hurt by the geese. 

Thursday, April 9, 2015

Website of Interest

I have starting using Justia doing some legal research.  It is a free search tool that lets you look at active and old cases in a number of federal courts  It can be useful in seeing what others have done with regard to the same defendant being sued. 

Wednesday, April 8, 2015

Ten Thousand Views

Thanks to everyone for reading.  Looks like I hit 10,000 views sometime yesterday.  Anyway, Mississippi Court of Appeals had an interesting case yesterday with Pritchett v. Pritchett located here.    The Pritchetts were divorced in 2011 after James was sentenced to serve five years for fondling his niece.  Ms. Pritchett then filed to terminate Mr. Pritchett's parental rights. The motion was granted.  On appeal, Mr. Pritchett argues that because he was indigent, he should have been appointed an attorney and he should have also been transported from the prison and allowed to be present at the hearing. The Court of Appeals reverses and remands because for one thing, the chancellor never addressed Section 93-15-103, which sets out three prerequisites that must be met before the court may invoke any specific ground for termination. The first prerequisite is that  the child has been removed from the home of [his] natural parents and cannot be returned to the home of his natural parents within a reasonable length of time or the parent is unable or unwilling to care for the child.  That was not the case here. The appellate court ordered the trial court to determine if counsel was appropriate and also seemed to hint that there was insufficient grounds for termination.  By my count, this is the second opinion since Chism v. Bright interpreting termination of parental rights.  One case now says it remains an independent action, this cases says it is not.  At some point this is going to have to be cleared up by the Court or the legislature.  Most attorneys and chancellor now are not sure what exactly the law is in this situation now. 

Tuesday, April 7, 2015

Employment Cases

Employment cases are largely taken because of the potential for an award of attorney's fees.  Numerous federal statutes provide for an award of attorney's fees upon a successful employment discrimination claim.  This is important as many of the cases involve low damages.  However, in many of the cases the award of attorney's fees is not discretionary.  I am aware of at least one (1) cases where $300.00 in damages were recovered but $49,000.00 in attorney's fees. 

Monday, April 6, 2015

Deadlines in State Court

There is currently a proposal to Amend Rule 16 of the Mississippi Rules of Civil Procedure to include mandatory scheduling orders and trial dates.  This would be largely similar to federal court. A link to the proposed changes with comments is here.  I personally link the idea.  However, with a mandatory scheduling on a divorce case, the dockets are about to get even more crowded in Desoto County. 

Friday, April 3, 2015

Evidence to Support Denial

I was doing some thinking over the holiday.  Many times, there are cases where a party denies something they have no actual defense to.  I remember a car wreck a few years ago where the party denied liability although they ran a stop sign and my client was the passenger. This is a time where interrogatories to request information to support their denial can be helpful.  On the case mentioned above, the party quickly stipulated to liability once it was made abundantly clear sanctions were in order if they stuck with the denial in discovery. 

Thursday, April 2, 2015

Time for an Attorney's Lien Statute

Tennessee law provide by statute an attorney's lien for work done.  Mississippi currently has not such statute.  There is still some old caselaw dealing with the right to a contractual lien and also lien against property unrelated to litigation.  However, on divorce cases this can be hard to enforce since technically everything can be related to the divorce.  There is actually an ethics opinion dealing with this.  It is time for the legislature to look into an attorney's lien statute in Mississippi. 

Wednesday, April 1, 2015

Statutory Penalty for Cutting Trees

Mississippi has a statutory penalty for cutting trees at Mississippi Code Annotated 95-5-10.  It allows for attorney's fees, expert fees, and expert fees.  Ironically, one of the first successes I had as an attorney was representing a family friend in one of these disputes.  The way the statute is written, all you have to show is that you own the trees and the other party cut them.   Mistake is not a defense.  It is for all practical purposes a strict liability tort.  This was illustrated in Dobbs v. Crawford, et. al. located here that the Mississippi Court of Appeals decided yesterday.  Mr. Dobbs raised a number of defenses but ultimately it came down to the Appellees owned the trees and he cut them.  The Court of Appeals affirmed the granting of summary judgment.  On a practical note, a few requests for admissions are just about all you need to get summary judgment on these type of cases.  After that, it is just calculating damages which normally consists of stump counting and measuring.  I still have vivid memories of doing this one winter on about a 10 acre track. It was utterly exhausting for myself and the defense attorney.