Tuesday, June 28, 2016

Oral Arguments

The Mississippi Supreme Court is set to hear oral arguments in Carter v. Carter today.  A copy of the cert petition is located here.  There are two issues that are fundamentally important in family law that will be reviewed.  The first, is whether a guardian ad litem is required to satisfy due process dealing with abuse or neglect as it relates to the minor child.  The second issue is how much discretion does the trial court have to find whether abuse or neglect is a legitimate issues.  To me, the second issue is really interesting.  I have been complaining for years about what amounts to just bad parenting vs. actual abuse or neglect.  There is a really good outline of this area in the cert petition worth reviewing on this topic. 

Wednesday, June 22, 2016

Privacy Rule Amendment

The Mississippi Supreme Court on June 16th struck MEC Administrative Procedures Section 9.A.5, which addresses what information must be redacted or omitted from pleadings and other filings with the court. The stricken provision read as follows:

"5. Home addresses to the city and state. All addresses shall be limited to the city and state. No street addresses or apartment numbers should be used."

This is helpful as pleadings were getting pretty diluted in my opinion with the privacy requirements now. 

Monday, June 20, 2016

CLE Thursday

I am speaking on social media and evidence Thursday in Tupelo.  A link to the topics is here

Friday, June 17, 2016

Mississippi Rules of Evidence - Major Change

Yesterday, the Mississippi Supreme Court issued a small order that has major impacts on the Rules of Evidence.  The Court noted that the title "Advisory Committee Note" must be substituted for the title "Comment" for each comment to the Mississippi Rules of Evidence. The Advisory Committee Notes represent commentary from the Advisory Committee and are neither the "Official Comments of the  
Court" nor "authoritative guides" for interpreting the Mississippi Rules of Evidence.   The link is below.  My reading of this is that the previous "comments" have no bearing on how to interpret the rules and cannot be used as authority.       

Wednesday, June 15, 2016

Speedy Trial

A federal opinion came down on the 10th in Patterson v. Hinds County located here.  It has one of the most detailed discussion of the Mississippi Speedy Trial requirements I am aware of.  As the opinion emphasized, county won the lawsuit but justice is what really lost. 

Tuesday, June 14, 2016

Recall of a Jury

On Thursday in Dietz v. Bouldin, the Supreme Court ruled that federal district courts can recall jurors after identifying errors in deliberations.  The decision involved the trial of a car wreck case in Florida. The defendant admitted liability and stipulated $10,136 in damages for plaintiff’s medical expenses. During deliberations, the jury sent out a note asking whether plaintiff’s medical expenses had been paid and, if so, by whom. As is typical in that situation, the judge gave a non-response that the information was not relevant to the verdict. The jury then returned a plaintiff verdict for $0.  The judge discharged the jury. Then, the judge realized that the verdict had to be for over $10,136. Over plaintiff’s objection, the judge recalled the jurors, all but one of whom were still in the courthouse. After questioning the jurors and determining that none had discussed the case with anyone, the judge gave clarifying instructions and ordered the jury to resume deliberations. The jury then returned a plaintiff verdict for $15,000.

The plaintiff appealed and argued for a new trial. The Ninth Circuit affirmed.  In a 6-2 decision, the Supreme Court ruled that it was within the trial court’s inherent power to recall the jury. But the court should be careful when exercising the power and do so only in civil cases after determining that the jury was not tainted after discharge. The judge should question the jurors about whether they discussed the case with anyone, accessed their smartphones or the internet or were impacted by the parties’ reaction to the verdict. Justices Thomas dissented with an opinion joined by Justice Kennedy. The dissent argued that the better rule is the common law bright line rule that once discharged, the judge cannot recall a jury.

Monday, June 13, 2016

Need for Additional Insurance

I read a good article this morning for practicing attorneys about the need for adequate insurance coverage for non-malpractice issues.  The article is located here.  This has one of the better discussions about employee liability, employee drivers, etc. that an attorney needs to have coverage for. 

Thursday, June 9, 2016

Unjust Enrichment

Unjust enrichment still has various applications in Mississippi law.  Here is the general law that is applicable. Unjust enrichment “applies to situations where there is no legal contract and ‘the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain but should deliver to another.’” Miss. Dep’t of Envtl. Quality v. Pac. Chlorine, Inc., 100 So. 3d 432, 442 (Miss. 2012) (quoting Powell v. Campbell, 912 So. 2d 978, 982 (Miss. 2005)).  In these circumstances, equity imposes “a duty to refund the money or the use value of the property to the person to whom in good conscience it ought to belong.” Estate of Johnson v. Adkins, 513 So. 2d 922, 926 (Miss. 1987).  The amount of recovery for unjust enrichment is “that to which the claimant is equitably entitled.”  Id.

Unjust enrichment is an equitable remedy closely associated with "implied
contracts" and trusts. In Hans v. Hans, 482 So.2d 1117 (Miss. 1986), the Court said:

“The doctrine of unjust enrichment or recovery in quasicontract applies to situations where there is no legal contract but where the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain but should deliver to another, the courts imposing a duty to refund the money or the use value of the property to the person to whom in good conscience it ought to belong.”

482 So.2d at 1122. And, in Magnolia Federal Savings & Loan v. Randal Craft
Realty, 342 So.2d 1308 (Miss. 1977):

“[t]he terms unjust enrichment and restitution are modern designation for the doctrine of quasi-contracts and the basis for an action for unjust enrichment lies in a promise, which is implied in law, that one will pay to the person entitled thereto which in equity and good conscience is his.”

342 So.2d at 1311.

Wednesday, June 8, 2016

Modification as Voluntary or Foreseeable

The circumstances that lead to the material change that bring rise to modification of child support, must not have been reasonably foreseeable at the time of the last order. Morris v. Morris, 541 So.2d 1040, 1042 (Miss. 1989). Modification of a divorce decree can occur only if there has been a material change in the circumstances with one or more of the parties. Varner v. Varner, 666 So. 2d 493, 497 (Miss. 1995). The change must occur as a result of after-arising circumstances  of the parties not reasonably  anticipated at the time of the agreement.  Id.  This burden is not met by a showing of reduced income when that income was voluntarily chosen. Ballard v.  Ballard, 843 So.2d  76,  79  (Miss.  Ct.  App.  2003) (citing Lahmann v. Hallman, 722 So.2d 614 (Miss. 1998).

Mississippi case law is replete with examples of child support and/or alimony modification petitions being denied because the obligor voluntarily worsened his or her financial position. In Ballard, an obligor who quit his job to open a contracting business and experienced reduced income was denied modification.  In Varner, a veterinarian whose income decreased after he voluntarily left his employer to open a solo practice was denied modification. In Tingle v. Tingle, 573 So.2d 1389 (Miss. 1989), an obligor who left his job to go back to school was denied modification.  In Yancey  v.  Yancey,  752 So.2d  1006  (Miss.  1999), an obligor who resigned from  his  job  after  a  disagreement  with  his supervisor  and  was  unable  to  find  new employment  was  also  denied modification  because  his job  departure  was  “fully  voluntary.”   Yancey at 1010. In Lahmann, the obligor quit his job to become a part-time nightclub singer and was denied modification. Lahmann at 622.

Monday, June 6, 2016

New Standard on Habitual Cruel and Inhuman Treatment

Last Thursday the Mississippi Supreme Court decided Pittman v. Pittman located here.  The issue in the case was whether the chancellor erred in failing to grant a divorce to the wife in spite of child abuse by the husband against the parties' minor child.  The Mississippi Supreme Court remanded the case finding that the chancellor needed to make some finding on the record regarding this.  This case seems to indicate the habitual cruel and inhuman treatment may be found based upon a spouse's conduct to third parties depending on the affect on the other spouse.  This appears to slightly expand or perhaps clarify what conduct may be found to be revolting such that a divorce is proper. 

Friday, June 3, 2016

New Standards on Trial

 The Mississippi Supreme Court decided Reynolds v. Allied Emergency Services, PC, et al. yesterday.  The opinion is located here.  It is a strange set of facts but precedent setting.  After hearing all the evidence in a medical-malpractice trial, the jury retired to deliberate.  At some point during their deliberations, they requested a copy of the jury instructions, which the bailiff provided.  But instead of providing the approved set of instructions, the bailiff mistakenly provided a set that the defendants previously had proffered, which included a peremptory instruction.  The jury returned a unanimous defense verdict, and the parties left the courthouse.  When the trial judge discovered the jury instruction mistake later that afternoon, he called the parties back to the courthouse and later
ordered a new trial.  The defendants then filed a motion to enforce the high/low settlement agreement
that the parties had entered into prior to trial.  The trial judge agreed with the defendants that
a new trial was not allowed under the agreement and rescinded his previous order granting
it.   The agreement was more or less a waiver of appeal rights by both parties with an agreement that the defense had a maximum they would pay no matter what the jury verdict was. 

The Court reasoned that the verdict was not valid. The basis for this finding was precedent stating that a verdict with irregularities present is void. From the opinion:
It is difficult to imagine a scenario more prejudicial to a party than what occurred here. The jury mistakenly was provided a copy of the defendants’ proffered instructions–some of which had been withdrawn, and some of which had been outright denied–and the first instruction they read told them to find for the defendants…
Since there was no valid verdict, the condition precedent to a high/low agreement (a verdict) was not met. Therefore, Plaintiff gets a new trial.  I could see this precedent as having far reaching consequences to both plaintiffs and defendants on appeal.  Some of the reasoning may also have application in criminal cases.  I could see the Mississippi Supreme Court in future opinions now having to distinguish what is harmless error vs. what justifies a void verdict. 

Wednesday, June 1, 2016

Law of the Case Doctrine

The law of the case doctrine provides that  “[it is] the practice of courts generally to refuse to reopen what has previously been decided.”  Cossitt v. Alfa Ins., 726 So. 2d 132, 141 (¶47) (Miss. 1998).  This doctrine may be used in ongoing litigation and also cases returning on appeal.  A discussion of this is in Larson v. Larson decided yesterday by the Mississippi Court of Appeals located here