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).

Wednesday, July 22, 2015

Website of Interest

I came across the website Compelling Discovery today.  The site is located here.  There are several good articles on there dealing with various discovery issues worth reading. 

Tuesday, July 21, 2015

Chism v. Bright Revisited

I still do a good bit of adoption work and the ongoing question has been how Chism v. Bright affects and adoption?  Chism v. Bright is located here.  A chancellor discussed this with me on a recent case.  The current consensus seems to be that Chism v. Bright proceeded under the termination of parental rights statute Mississippi Code Annotated 93-15-103. However, adoption proceeds under Mississippi Code Annotated 93-17-7.  The key difference is that the adoption statute does not have the removed from the home by DHS language that the termination statute does.  As such, it is easier to get termination of parental rights in contemplation of an adoption as opposed to just a termination of parental rights.

Monday, July 20, 2015

Petition for Determination of Rights

Mississippi has a procedure for the determination of rights with regard to a father under Mississippi Code Annotated 93-17-6.  The procedure provides a way for an adoption of a child after thirty (30) days has lapsed.  This procedure is essentially a termination of parental rights and waiver of any objection to adoption.  The statute is outlined below and is an expedite way to handle the matter. 

§ 93-17-6. Petition for determination of rights in proposed adoption of natural child.  
(1)  Any person who would be a necessary party to an adoption proceeding under this chapter and any person alleged or claiming to be the father of a child born out of wedlock who is proposed for adoption or who has been determined to be such by any administrative or judicial procedure (the "alleged father") may file a petition for determination of rights as a preliminary pleading to a petition for adoption in any court which would have jurisdiction and venue of an adoption proceeding. A petition for determination of rights may be filed at any time after the period ending thirty (30) days after the birth of the child. Should competing petitions be filed in two (2) or more courts having jurisdiction and venue, the court in which the first such petition was properly filed shall have jurisdiction over the whole proceeding until its disposition. The prospective adopting parents need not be a party to such petition. Where the child's biological mother has surrendered the child to a home for adoption, the home may represent the biological mother and her interests in this proceeding.   (2)  The court shall set this petition for hearing as expeditiously as possible allowing not less than ten (10) days' notice from the service or completion of process on the parties to be served.   (3)  The sole matter for determination under a petition for determination of rights is whether the alleged father has a right to object to an adoption as set out in Section 93-17-5(3).   (4)  Proof of an alleged father's full commitment to the responsibilities of parenthood would be shown by proof that, in accordance with his means and knowledge of the mother's pregnancy or the child's birth, that he either:  (a) Provided financial support, including, but not limited to, the payment of consistent support to the mother during her pregnancy, contributions to the payment of the medical expenses of pregnancy and birth, and contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now willing and able to assume legal and physical care of the child; or  (b) Was willing to provide such support and to visit the child and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.   (5)  If the court determines that the alleged father has not met his full responsibilities of parenthood, it shall enter an order terminating his parental rights and he shall have no right to object to an adoption under Section 93-17-7.   (6)  If the court determines that the alleged father has met his full responsibilities of parenthood and that he objects to the child's adoption, the court shall set the matter as a contested adoption in accord with Section 93-17-8.   (7)  A petition for determination of rights may be used to determine the rights of alleged fathers whose identity is unknown or uncertain. In such cases the court shall determine what, if any, notice can be and is to be given such persons. Determinations of rights under the procedure of this section may also be made under a petition for adoption.   (8)  Petitions for determination of rights shall be considered adoption cases and all subsequent proceedings such as a contested adoption under Section 93-17-8 and the adoption proceeding itself shall be portions of the same file. 
(9)  Service of process in the adoption of a foreign born child shall be governed by Section 93-15-105(5). 

Friday, July 17, 2015

Interplay of Natural Parent and Paternity Statute

I am beginning work on a complex legal issue involving the interplay of the natural parent presumption and the disestablishment of paternity statute.  The natural parent presumption is found in Mississippi Code Section 93-13-1 (Rev. 2004) which provides that:  “The father and the mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education … If either father or mother die or be incapable of acting, the guardianship devolves upon the surviving parent.” The presumption is rebuttable, upon a clear showing that: the parent has abandoned the child; the conduct of the parent is so immoral as to be detrimental to the child; or the parent is unfit mentally or otherwise to have custody.  This has to be measured against Mississippi Code Annotated 93-9-10 which provides only limited situations where paternity may be disestablished.  The question is whether a legal parent who never disestablished paternity is on equal footing with a natural parent?  If paternity cannot be disestablished, does that not make the legal parent the natural parent by law?  Every case dealing with this issue was prior to the passage of 93-9-10 which is relatively new. 

Thursday, July 16, 2015

Payment of Wages at Death

Mississippi Code 91-7-323 provides a way for an employer to pay the wages of a deceased employee.  The statute provides that:  "When any person, male or female, shall die leaving wages, salary or other compensation due him, it shall be lawful for the debtor to pay said wages, salary or other compensation to the wife or husband, as the case may be, of said deceased creditor if he or she leaves a wife or husband, as the case may be, surviving him or her; and if he or she shall leave no wife or husband surviving him or her, then to his or her children if adults; and if he or she shall leave no children and no wife or husband surviving him or her, then to his or her mother; and if he or she shall leave no wife or husband or children or mother surviving him or her, then to his or her father; and if he or she shall leave no wife or children or husband or mother or father surviving him or her, then to his or her brothers and sisters if adults. If such creditor shall have left no wife, husband, children, nor brothers nor sisters, nor father nor mother surviving him "or her, or if any of his or her children surviving him or her shall be minors, or if any of his or her brothers or sisters surviving him or her, entitled to inherit, shall be minors, then it shall be lawful for said debtor to pay said wages, salary or other compensation to the chancery clerk of the county in which said creditor resided at the time of his or her death, or of the county where he or she died.".

There are not too many people familiar with this statute.   However, many employers are not comfortable, perhaps rightly, over turning over wages without an estate open. 

Wednesday, July 15, 2015

Small Estate Affidavit

Under Mississippi Code Annotated 91-7-322, personal property owed to a deceased person with a value of up to $50,000 may be delivered to his or her heirs or successors by affidavit.  This is often referee to as a small estate affidavit. 

The affidavit can be made at any time after 30 days have passed since the person’s death.  It may be given to “any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action belonging to the decedent.”  That person is then required to transfer the personal property or the instrument to the successor.

As the name suggests, the use of the Small Estate Affidavit is limited to small estates.  If the estate is worth more than $50,000, the Small Estate Affidavit will not apply. But any secured debt of the estate (for example, a lien on an automobile) can be subtracted from the value of the estate for purposes of computing the $50,000 threshold.

The Small Estate Affidavit is not available if an estate will be opened.  The person making the affidavit must represent that no personal representative (executor or administrator) of the estate has been appointed or is the process of being appointed.  The affidavit must also describe the relationship between the person making the affidavit and the deceased person.  The Small Estate Affidavit is only available to “successors,” which include the surviving spouse, the adult with whom minor children are residing, adult children, or parents of the decedent, in that order.

Once the successor provides the affidavit to the third party, he or she can take whatever actions necessary to deal with the property covered by the Small Estate Affidavit.  Third parties can rely on the statute without fear of liability.  There is no need for the third party to dig further into the truth of the affidavit or otherwise keep up with what happens to the asset after it is transferred to the successor. If the third party simply refuses to transfer the property after having been furnished with a Small Estate Affidavit, the successor can bring a proceeding in chancery court to force the transfer of the property.

This can be helpful in dealing with small amounts of property that need to be transferred without the necessity of a full probate. 

Monday, July 13, 2015

Website of Interest

The Center for Criminal Justice Advocacy has a number of useful trial items on its website located here.  Many of the items of advice overlap into other areas of practice. 

Friday, July 10, 2015

Notice of a Condition

In Beverly v. Hardee’s Food Systems, LLC, No. E2014-02155-COA-R3-CV (Tenn. Ct. App. June 15, 2015), the Tennessee Court of Appeals overturned summary judgment in a premises liability case.  This was based the ability of the plaintiff to potentially prove constructive knowledge of the dangerous condition. The interesting fact is that the plaintiff slipped on vomit that had been on the floor just over three minutes.  However, based on the location and proximity to employees, it became a jury issue of whether this acted as constructive notice.  The law in Mississippi is substantially similar. 

Thursday, July 9, 2015

Proposed Rule Change

The Mississippi Supreme Court is currently taking comments on proposed rule changes to Rule 802 and Rule 804 of the Mississippi Rules of Evidence.  The proposed changes would allow doctors depositions to be admissible at trial without the necessity of having the doctor present which has been an ongoing problem.  A link to the changes with more detailed information is located here

Wednesday, July 8, 2015

Pre-Trial Conference

I am traveling today to a pre-trial conference on a case set for trial next month. I am not sure why these are not done more often on both tort cases and domestic cases.  They give both attorneys the chance to clear up evidentiary issues and make the trial run so much smoother.  It also gives the parties a chance to file motions to reconsider in case of adverse rulings at the conference which may help prevent the case from having to be retried later. 

Tuesday, July 7, 2015

Bill of Discovery

A bill of discovery is still useable in Mississippi.  It is a device to obtain discovery prior to litigation through the chancery court.  It may be useful in investigating certain cases and potentially could be used as part of a probate proceeding to obtain evidence for a wrongful death case.  As I remember reading, it is an old dinosaur which still has teeth. 

Monday, July 6, 2015

Personal Liability for Failing to Have Worker's Compensation Insurance

The Mississippi Supreme Court decided Jarrett v. Dillard last week located here.  The Mississippi Supreme Court affirmed the trial court finding an individual personally liable for failing to maintain worker's compensation insurance for an injured employee.  Scary stuff since the individual cannot assert hard any defense related to failing to maintain the insurance. 

Friday, July 3, 2015

Employment and Illegal Conduct

The Mississippi Supreme Court decided Galle v. Isle of Capri Casinos yesterday located here.  The issue in the case dealt with at will employment and illegal conduct.  From the opinion, if the employee participates in the illegal conduct, he or she has no claim against the employer for termination. 

Thursday, July 2, 2015

Need for Increased Security at Depositions

An attorney in the delta was recently shot and killed in a deposition.  Ellis Pittman was a colleague who I had litigated a case against in the past.  As a result, people are starting to question if there should be increased security at depositions?  I am aware of at least one case in the northeast where a law firm was sued for injuries to a party as a result negligent security in a deposition.  This is something that needs to be looked into and would be most likely outside of normal malpractice insurance.  I think business liability coverage would cover these type issues. 

Wednesday, July 1, 2015


The Mississippi Court of Appeals decided Price v. Snowden located here.  The case enforced an escalation clause which included "sea pay" Mr. Snowden received which was not taxable to him.  The Court of Appeal also found that Mr. Snowden should have been found in contempt for unilaterally stopping child support.  This is one of the first cases I can remember a chancellor being reversed for not finding someone in contempt.