Tuesday, August 30, 2016

Rule 1006

One issue I keep seeing from appeal cases in. Mississippi is Rule 1006 issues concerning admissibility.  The only requirements for a Rule 1006 summary to be admissible are: (1) the summary or compilation must be of evidentiary matter that is too voluminous to be examined conveniently in court; (2) the summary or compilation must be based on that evidence; and (3) the originals must have been made reasonably available for inspection and copying, and you should have the originals available in case the judge orders that they be produced in court.  The main thing on this is that the party who prepared the summary needs to testify.  I keep seeing people trying to use the opposing party to admit the contents of a summary they did not prepare.  It is not admissible this way and I have yet to find a case where the trial court has let one in like that.

Thursday, August 25, 2016

Reversing Evidentary Ruling

Reversing an evidentiary ruling on appeal is hard.  However, it can be done.  The admission of evidence is reviewed for abuses of discretion.  Burton v. State, 875 So.2d 1120, 1122 (¶6) (Miss.Ct.App.2004).   In other words, the Appellate Court will not disturb a trial court's decision unless it is clearly wrong.  Id.  However, the Appellate Court will find an abuse of discretion if a party shows clear prejudice resulting from an undue constraint on his or her own case or an undue lack of constraint on the opposing party.  Id.

Wednesday, August 24, 2016

Punitive Damages and Attorney's Fees

Yesterday, the Mississippi Court of Appeals decided Mississippi Valley Silica Company, Inc. v. Barnett, et. al  located here.  One of the issues raised was the reasonableness of the attorney's fees award.  This was the only issue reversed.  The Court found that the trial court made no findings of the McKee factors and as such the award had to be reversed for review of this issue only.  I have an earlier post here which shows a model form that can be helpful.  If the trial court rubber stamps the fee award,  the factor findings are in the affidavit.  As such, the Appellate Court has something to hang its hat on to affirm the award. 

Friday, August 19, 2016

Estate Asset Summary Proceeding

I was meeting with an attorney this morning and we discussed how to recover assets in an estate when certain things have come up missing.  Mississippi Code Annotated 91-7-103 provides a summary proceeding for the return of assets.  It is a pretty detailed statute and can be helpful.  I have had several of these cases come up lately. 

Thursday, August 18, 2016

Sexual Battery

The Mississippi Court of Appeals decided McManus v. State on Tuesday located here.  The issue in the case was sufficiency of the evidence on sexual battery.  The Court more or less stated that in a swearing contest it is up to the jury to determine who to believe.  These type of cases have to be defended aggressively in order to seek an acquittal.  Both sides in these type of cases can have motivations to be less than truthful.  Many times some kind of Alford plea may be the best resolution depending on the facts. 

Tuesday, August 16, 2016

Federal Motions to Compel

Some of the amendments to the Federal Rules of Civil Procedure last year dealt with changes to motions to compel discovery responses.  One of the changes required conferences with the court and with opposing counsel prior to filing a motion to compel.   It made this matter optional within the Court's discretion must several magistrates now have it in the scheduling orders.  In some ways this is good as it saves the Court time.  However, it other ways it is time consuming as most discovery issues get worked out prior to getting to a motion to compel.  It is only when opposing is normally being unreasonable that it gets to the point of court intervention. 

Monday, August 15, 2016

Contempt vs. Inability to Pay

I have been debating the award of attorney's fees on a case where one party is in contempt and another has the inability to pay.  Logically, I don't see why if a party has the inability to pay, they could not be awarded attorney's fees if they file for claims other than defending the contempt.  In theory, I think the clean hands doctrine would bar the attorney's fees on defending just the contempt. However, if a judgment is entered on the contempt, I think if a large amount of fees is expended on the modification they could be awarded.  I have been unable to find cases dealing with this issue.  However, I have a test case on this currently pending. 

Tuesday, August 9, 2016

Standard for a New Trial in Criminal Case Based on Newly Discovery Evidence

The Mississippi Supreme Court stated that the movant seeking a new trial based on newly discovered evidence must provide evidence which satisfies the following elements: (1) that the new evidence was discovered since the trial, (2) that when using due diligence the evidence could not be discovered prior to trial, (3) that the evidence is material to the issue and that it is not merely cumulative or impeaching, and (4) that the evidence will probably produce a different result or verdict in the new trial. Whether the newly discovered evidence presented will likely change the outcome if a new trial were granted is a determination made by the trial court in its discretion and will not be overruled by this Court unless it is an abuse of discretion.
Williams v. State, 754 So.2d 591 (¶ 7) (Miss.Ct.App.2000) (citations omitted).

Friday, August 5, 2016

Adverse Authority

I am still doing a lot of appeal work.  Here is one of the better articles on how to deal with adverse authority. 

Wednesday, August 3, 2016

Successive Bankruptcy

Many times it may be beneficial to file a second bankruptcy.  Below are the time limits for receiving a second discharge. The limits vary depending on what type of bankruptcy you plan to file (Chapter 7 or Chapter 13) and the type of bankruptcy in which you previously got a discharge.

Chapter 7 then Chapter 7—eight years. If you received a discharge in a Chapter 7 bankruptcy, you cannot get another Chapter 7 discharge unless the second case was filed more than eight years from the date you filed the first Chapter 7 case.

Chapter 13 then Chapter 13—two years. If you received a discharge in a Chapter 13 bankruptcy, you cannot get another Chapter 13 discharge unless the second case was filed more than two years from the date you filed the first Chapter 13 case.

Chapter 13 then Chapter 7—six years. If you received a discharge in a Chapter 13 bankruptcy, you cannot get a discharge in a Chapter 7 case unless you file the second case more than six years from the filing date of the Chapter 13. There is an exception. You can file right away if:

·         you paid 100% of the debt owed to your unsecured creditors in the Chapter 13, or

·         you paid at least 70% of the claims in the Chapter 13 case and you proposed the plan in good faith and used your best effort to repay creditors.

Chapter 7 then Chapter 13—four years. If you received a discharge in a Chapter 7 bankruptcy, you cannot get a discharge in a subsequent Chapter 13 case unless you file the Chapter 13 case more than four years from the filing date of the Chapter 7.

Tuesday, August 2, 2016

Jury Trial on Tax Appeals

Last week, the Mississippi Supreme Court decided Riverboat Corporation of Mississippi d/b/a Isle of Capri Casino v. Harrison County Board of Supervisors, Tal Flurry, Tax Assessor for Harrison County, Mississippi and City of Biloxi, Mississippi   The Court ended up finding that a party has the right to a jury trial for tax appeals.  I could see this going really bad for counties in so many ways. 

Monday, August 1, 2016

Extension of Time to File Appeal

Last week, the Mississippi Supreme Court decided Nunnery v. Nunnery located here.  The case dealt with whether the death of an attorney's family member constituted excusable neglect such that the reopening of the appeal period should be granted.  Under the circumstances of the case, the Mississippi Supreme Court in a divided opinion found that it was not.  The majority reasoned that the prejudice to the opposing party was too great under the circumstances.  The dissent argued that the prejudice was only minor since it was only missed by a few days.  The analysis seemed to largely hinge on the fact that the motion for a new trial was denied fifteen months after it was filed.  The lesson from this seems to be that excusable neglect is a high standard subject to an abuse of discretion review on appeal.