Utah Case of Interest

The Utah Supreme Court has struck down an attorney fee schedule for workers' compensation cases and the law that authorized it.

The court ruled on Wednesday in a case challenging the sliding-scale fees and a fee cap established by the Utah Labor Commission. The Legal Profession Blog has highlights from the opinion (PDF).

The supreme court said it has the exclusive authority to govern law practice under the state constitution, and that includes the regulation of attorney fees. The separation of powers doctrine bars the legislature from giving that power to the labor commission, the court concluded.

The schedule set attorney fees at 25 percent for the first $25,000 of the award, 20 percent for the next $25,000 of the award, and 10 percent for awards over $50,000. The fee cap is $18,590.

The fee schedule was intended to protect unsophisticated litigants. Despite those good intentions, the court said, many attorneys are economically unable or unwilling to take on injured workers' cases. The schedule limits not only the quantity of workers' comp lawyers, it also limits their quality, the court said.

Lawyers have an incentive to settle once they reach the capped amount, and they may be opposed by lawyers for employers and insurers with no fee limitations, according to the court.

The court said it was declining to enact its own fee schedule at this time.

Mississippi Speeding Statutes List

Below is a list of the major of the Mississippi Statutes dealing with speeding which may be relevant in an accident.

1.            63-3-309               Rules for intersections, yielding right of way

2.            63-3-311               Rules for flashing lights, yielding right of way

3.            63-3-501               Maximum speeds for highways

4.            63-3-505               Conditions under which speed must be decreased:

                                                a.            approaching an intersection

                                                b.            approaching a curve, cresting a hill

                                                c.             narrow or winding roadway

                                                d.            trucks and tractor trailers must reduce speed to 45 mph during inclement weather

5.            63-3-509               Minimum speed limits for highways

6.            63-3-601               Vehicles to be operated on right half of roadway unless:            

                                                a.            passing another vehicle

                                                b.            right roadway is closed

                                                c.             there are three marked lanes

                                                d.            road is marked for one way traffic

7.            63-3-609               Rules for passing vehicles proceeding in same direction

8.            63-3-611               Rules for passing vehicles on left side of roadway

9.            63-3-613               Rules for passing vehicles on right side of roadway

10.          63-3-615               Passing school busses

11.          63-3-619               Distances to be maintained between vehicles:

                                                not more closely than is reasonable and prudent

12.          63-3-703               Turning at intersections

13.          63-3-707               Signaling of turns and stops

                                                a.            signal must be given continuously

                                                b.            no stopping or slowing suddenly without signal

14.          63-3-803               Vehicle turning left at intersection yields to vehicles coming from opposite direction.  Once ROW is yielded, vehicle turning left may proceed and all other vehicles must yield                                                   ROW

15.          63-3-901               No stopping, standing or parking:

                                                a.            on a sidewalk

                                                b.            in front of a public or private driveway

                                                c.             within an intersection

                                                d.            within 10 feet of a fire hydrant

                                                e.            on a crosswalk or within 20 feet thereof

                                               

16.          63-3-1112            Driver has duty to avoid collision with a pedestrian

17.          63-3-1201            Reckless driving – willful or wanton disregard for the safety of others

18.          63-3-1213            Careless driving

19.          63-11-30               Driving under the influence of alcohol                                                                 

Mississippi Brief Time Frames

In Mississippi, briefs to the Court of Appeals and Mississippi Supreme Court have several time frames for consideration depending on where one is in the process.  Below is a list of the major deadlines.

Time to appeal - 30 days from entry of order denying new trial or reconsideration
File Designation of the record - 7 days from filing notice of appeal
Pay appeal costs - 7 days from filing notice of appeal
Time to fix defects before dismissal - 14 days
Time for clerk and court reporter to prepare appeal record - 30 - 60 days barring extensions
Time to review completed record - each side has 14 days to review - Appellant gets first 14,  
                                                                                                               Appellee 2nd 14
Time frames for briefs - 40 days Appellant, 30 days Appellee, Reply Brief 14 days
Time frame to Rule on Initial Case - 270 days
Time frame to file rehearing 14 days
Reply to rehearing or cert - 14 days
Time frame to rule on rehearing - no set time, normally within 5 months
Petition for certiorari to Mississippi Supreme Court- 14 days after order denying rehearing
Time to Rule on cert. - 90 days
Time frame to rule if cert granted - 180 days

Mississippi Revised TPR Statute Issue

I had an interesting discussion yesterday about Mississippi's new termination of parental rights statute yesterday with a fellow attorney.  The issue that appears to be a problem under the new statute is that there is no provision that the consent to termination filed is irrevocable.  Under the new statute, the consent has to be accepted by the court prior to it becoming final.  The biggest problem this creates is with adoption agencies where children are surrendered at birth. The concern is that the parent could try to revoke the consent prior to the court accepting it with no real recourse. 

Final Order

On Thursday of last week, the Mississippi Supreme Court decided Wigington v. McCalop located here.  Two doctors were divorced.  Three years later the ex-husband asked the court to reopen the case on the grounds the settlement agreement was procedurally and substantively unconscionable. The chancellor  declined to set aside the divorce settlement agreement but  established a procedure by which Chad and the couple’s minor child, L.P., might be reunited and begin a father-child relationship. Chad appealed and  Laura cross-appealed.  The Court dismisses the appeal. “Because the chancellor retained jurisdiction to supervise the reunification process and to revisit the case in six months for further review, the order and opinion did not constitute a final, appealable judgment. Therefore it is, not appropriate for consideration on direct appeal. Accordingly, we dismiss and remand.”

This case illustrates that if anything is left open, the judgment is not a final appealable order.  These kind of cases are having me to consider to put Rule 54 certifications in every order presented that I believe to be a final order. 

Appellate Rule Change

Last week, the Mississippi Supreme Court revised Rule 28 of the Rules of Appellate Procedure.  A copy of the amended rule is located here.  Briefs will now need to contain a Statement of Assignment also after June 1, 2016.  A statement of assignment has to have the below: 

"( 4) Statement of Assignment. This statement must succinctly give the reasons, if any, that the Supreme Court either must or should retain the case for the reasons stated under Rule 16(b) or (d). The statement should include citations to any cases sought to be overruled or perceived to be in conflict."

This almost sounds like what would be filed in a certiorari petition.  This change could be a sign than even less cases are going to be reviewed by the Mississippi Supreme Court if they are assigned to the Court of Appeals. 

Lesser Known Contempt Defenses

On Tuesday, the Court of Appeals decided Richards v. Chance located here.  The opinion deals with and has one of the one in depth discussions of the lesser known defenses to contempt namely lashes, waiver, estoppel, and the statute of limitations.  There is also an interesting discussion in the opinion that the chancellor did not find Ms. Richards in willful contempt but still found her in contempt.  There is still a line of cases that says contempt can only be willful but this case seems to find that a party can be found in contempt and forced to pay attorney's fees when there is a bona fide dispute about a court order. 

Military Family Law Issues

Mississippi Code Ann. 93-5-34, was passed for the purpose of swiftly and efficiently resolving matters involving custody and visitation when a parent is deployed and to facilitate continued communication between parents and their minor children when a parent is deployed. This statute protects deployed service members in the following ways:

(1) if the service member has sole or joint physical custody of a child, by limiting the duration of any temporary custody orders to no longer than ten (10) days after the deployed parent returns; by prohibiting the use of the service member’s deployment as a factor to be used in any custody modification action; and, by requiring that the non-deployed parent make the child available to the service member for telephonic, webcam, and email contact with the child during deployment;

(2) if the service member has visitation rights with the child and is deployed, by allowing a court to delegate the service member’s visitation rights to a family member with a close and substantial relationship to the minor child during the duration of the service member’s absence;

(3) by allowing service members who receive deployment orders an opportunity to an expedited hearing in custody and visitation matters if certain conditions are met; and,

(4) by allowing the service member on deployment to present testimony and evidence by affidavit or electronic means in custody and visitation cases if certain conditions are met.

Issues of family law involving the military has its own set for rules in many areas be it retirement or the areas described above.  They are not necessarily more difficult, but certainly not the same as an everyday case either. 

Proving Adultery

The Mississippi Supreme Court has said that to prove adultery, a plaintiff-spouse must show by clear and convincing evidence that the other spouse exhibited both an (1) adulterous inclination and a (2) reasonable opportunity to satisfy that inclination. Larson v. Larson, 122 So. 3d 1213, 1215 (Miss. Ct. App. 2013). An “adulterous inclination” requires proof of either the defendant’s infatuation with a particular person or general adulterous propensity. Id. More so, adultery may be proven by either direct evidence or, given the inherently secretive nature of adulterous conduct, by circumstantial evidence. Id. But, “[w]here the plaintiff relies on circumstantial evidence as proof for his allegations, he or she retains the burden of presenting satisfactory evidence sufficient to lead the trier of fact to conclusion of guilt.” Dillon v. Dillon, 498 So. 2d 328, 330 (Miss. 1986). So, the plaintiff-spouse seeking a divorce based on circumstantial evidence of the other spouse’s adulterous misconduct retains the burden of proof at trial; instead of the burden shifting to the defendant-spouse to prove otherwise.

In Fore, both the husband and wife filed for divorce, accusing each other of committing adultery. Fore v. Fore, 109 So. 3d 137, 138 (Miss. Ct. App. 2013). Regarding the wife’s alleged adulterous conduct with another man, the facts indicated that the wife had loaned $25,000 of her own money to the man’s business, bought him Saints tickets, talked to him on the phone extensively, visited his parents, and even gave him a “hug and kiss in the courthouse hallway.” Id. at 140. On the other hand, the husband’s alleged misconduct included leaving a woman (non-relative) a small portion of his estate in his will, going with her to the Kentucky Derby, having her ride with him on his private jet, and attending bars in public with her. Id. Despite these facts, the Mississippi Court of Appeals affirmed a circuit court’s finding that neither the husband nor the wife provided sufficient evidence of adultery to warrant a divorce under Mississippi law.

This case shows that beliefs about adultery is not enough. 

Talc Litigation

Earlier this week, Johnson and Johnson was ordered to pay 55 million in a talc verdict on their powder products.  A link to an article on it is located here. 

Family Use Doctrine

The “family-use” doctrine is a relatively new legal doctrine Mississippi courts have recognized and applied in divorce cases; the Mississippi Court of Appeals first recognized the doctrine in 2001. See Brame v. Brame, 796 So. 2d 970 (Miss. Ct. App. 2001). Under the “family-use” doctrine, otherwise separate, non-marital property may be classified as–or converted to–“marital” property if such property is used for familial benefit during the marriage. This legal doctrine applies to both real and personal property–including real estate, homes, cash in bank accounts, and the like. Rhodes v. Rhodes, 52 So. 3d 430, 437 (Miss. Ct. App. 2011) (“[I]t is sufficient to say that the family-use doctrine has proper application with respect to real property . . . .”); Pittman v. Pittman, 791 So. 2d 857, 866-67 (Miss. Ct. App. 2001) (applying the family-use doctrine to furniture, china, silver, and jewelry). So whether the property at issue in a divorce case is a pre-marital home or money in a separate (non-joint) bank account, either can be converted into “marital” property in a divorce case if used for familial benefit.

Between the family use doctrine and commingling, separate property gets harder and harder to keep.