Friday, December 29, 2017

Importance of a Post-Trial Motioin

Absent a renewal of the directed-verdict motion, a request for a peremptory instruction, or a motion for a judgment notwithstanding the verdict (JNOV), an appellant has waived the sufficiency error on appeal. Darnell v. State, 202 So. 3d 281, 285 (¶13) (Miss. Ct. App. 2016). Additionally, “[t]he matter of evidentiary weight is waived by the failure to move for a new trial.” Stewart v. State, 879 So. 2d 1089, 1095 (¶24) (Miss. Ct. App. 2004).

Thursday, December 21, 2017

Recovery of Overpayment When Overturned on Appeal

When payment of financial awards are not stayed pending appeal, repayment may be required.  After alimony was reversed on appeal, a chancellor properly ordered a wife to reimburse her husband for alimony payments received during the period of appeal.  Henderson v. Henderson, 757 So. 2d 285,294 (Miss. 2000). 

Thursday, December 14, 2017

Deposition Exhibits

A few years ago, I was taking a deposition where the opposing party kept putting documents in front of my client asking her to read them.  He essentially was trying to make it sound like she was testifying to certain things as facts instead of reading the documents.  I asked him to attach the items to the deposition as it came up and he refused.  We ended up having to stop the deposition and get the Judge on the phone as a result.  The answer is very straight forward in Rule 30 (f)(2) which provides that:

"(2) Documents and things produced for inspection during the examination of the witness, shall, upon the request of a party, be marked for identification and annexed to the deposition, and may be inspected and copied by any party.  Whenever the person producing materials desires to retain the originals, he may substitute copies of the originals, or afford each party an opportunity to make copies thereof."

After the opposing attorney was tongue lashed by the judge and threatened with sanctions, the deposition ended about ten (10) minutes later because he was so thrown off by the incident.  

Thursday, December 7, 2017

Same Sex Divorce and Paternity

On November 29, 2017, the Mississippi Supreme Court heard the case of Christine Strickland v Kimberly Jayroe Strickland Day involving a finding of parentage where the couple’s child was conceived with sperm from an unknown donor.  Christina and Kimberly were in a relationship beginning in 1999.   They adopted a son in 2000  but because of restrictions against adoption by same sex couples. Kimberly was the one who legally adopted E.J.  In 2009 they married in Massachusetts. They then had another child in 2010 by having Kimberly carry a baby  whose father was an anonymous sperm donor (the egg was Kimberly’s).

They eventually split up and filed for divorce.  The trial court held that Christina acted in loco parentis to E.J. and awarded her visitation rights.  With respect to Z.S. the court held that  Z.S. was born during a valid marriage but created a distinction between children born “during” a marriage and children born “of” a marriage and held that Z.S. was born during the marriage, not of the marriage,” “wherein both parties are not considered.” The court held that the anonymous sperm donor constituted “an absent father”, that  he “may never be known, and probably won’t be, [] he is still a father.” This being so, the court concluded, that the donor’s legal parentage precluded a determination that Christina was Z.S.’s legal parent but held that Christina acted in loco parentis to Z.S., and awarded her visitation rights. Christina appealed and argues that she should have been recognized as the parent of Z.S.

The briefs are below.  I have predicted for a while this would be the next big issue in family law.

Christine Strickland’s brief
Kimberly Day’s brief
Strickland’s reply brief
(There are also various amicus briefs)
Watch the argument here

Tuesday, December 5, 2017

Tax Code Changes and Modification

Most people are aware that there are several potential changes in the U.S. Tax Code with regard to family law floating around.  The final bills have not passed yet.  The two main issues of interest are the lack of deductibility of alimony and the removal of the child tax deduction.  The issue I am seeing on the horizon if these become law is whether this is a basis for modification of financial obligations.  Countless divorce degrees where negotiated across the country in good faith with these tax benefits taken into consideration.  Currently, I think the change is foreseeable.  Six months ago, not so much.  Timing may be a critical issue in these cases.  The legal issue  of whether a change in the tax code is a substantial change in circumstances is going to be one of the next big issues to consider. 

Thursday, November 30, 2017

Legal Points on Mississippi Default Judgments

Below is some random points on Default Judgments in Mississippi.

The Mississippi Supreme Court has been clear that " default judgments are not favored." McCain, 791 So.2d at 843 (¶ 10); Guar. Nat'l Ins. Co. v. Pittman, 501 So.2d 377, 387-88 (Miss. 1987). " [T]rial courts should not be grudging in . . . vacating such judgment where showings within the rules have arguably been made." Guar. Nat'l Ins. Co., 501 So.2d at 387-88 (citing Bell v. City of Bay St. Louis, 467 So.2d 657, 666 (Miss. 1985)). The Court has instructed that a trial court's discretion in deciding whether to vacate a default judgment " must be exercised in accordance with the provisions of Rules 55(c) and 60(b) as well as the supplementary criteria given validity in the decisions of this Court." Guar. Nat'l Ins. Co., 501 So.2d at 388. ¶23. According to Rule 55(c), a default judgment may be set aside " [f]or good cause shown" and in accordance with Rule 60(b). Miss. R. Civ. P. 55(c). The Court has articulated a three-pronged balancing test to apply in deciding whether to set aside a judgment pursuant to Rule 60(b): the trial court must consider " (1) the nature and legitimacy of the defendant's reasons for his default, i.e. whether the defendant has good cause for default, (2) whether the defendant in fact has a colorable defense to the merits of the claim, and (3) the nature and extent of prejudice which may be suffered by the plaintiff if the default judgment is set aside." Rogillio, 10 So.3d at 468 (¶ 10) (citations omitted).

The Mississippi Supreme Court has unequivocally that " the second factor, the presence of a colorable defense, outweighs the other two, and we have encouraged trial courts to vacate a default judgment where 'the defendant has shown that he has a meritorious defense.'" Allstate Ins. Co. v. Green, 794 So.2d 170, 174 (¶ 9) (Miss. 2001) (citing Bailey v. Georgia Cotton Goods Co., 543 So.2d 180, 182 (Miss. 1989)). See also Flagstar Bank, FSB v. Danos, 46 So.3d 298, 307 (¶ 32) (Miss. 2010) (" colorable-defense prong is the most important factor" ) (citing Rogillio, 10 So.3d at 469 (¶ 16)). Regarding a trial court's discretion in setting aside default judgments, the Court has held: " [T]he importance of litigants having a trial on the merits should always be a serious consideration by a trial judge in such matters. Thus, any error made by a trial judge should be in the direction of setting aside a default judgment and proceeding with trial." Green, 794 So.2d at 174 (¶ 9) (quoting Clark v. City of Pascagoula, 507 So.2d 70, 77 (Miss. 1987)).

To satisfy the colorable defense prong, " a party must show facts, not conclusions, and must do so by affidavit or other sworn form of evidence.'" Capital One Servs., Inc. v. Rawls, 904 So.2d 1010, 1016 (¶ 19) (Miss. 2004) (quoting Rush v. North Am. Van Lines, Inc., 608 So.2d 1205, 1210 (Miss. 1992)). In Rush, the Court wrote: " Next is the matter of a defense on the merits. Here the law demands more than a mere wish and a prayer. To show a creditable [sic] defense in the present setting, a party must show facts, not conclusions, and must do so by affidavit or other sworn form of evidence." Rush, 608 So.2d at 1210.

The fact that the plaintiffs would be required to litigate their case and prove their claims is not " cognizable prejudice." Kumar, 80 So.3d at 816 (¶ 29) (citing Bailey, 543 So.2d at 183). " The mere fact [that] the plaintiff may have to try and prove his case does not stay the judicial hand. That is not the sort of prejudice the rule contemplates." Rush v. North American Van Lines, 608 So.2d 1205, 1211 (Miss. 1992). Prejudice does not result from " the loss of rights that were obtainable only by default." In re Estates of Gates, 876 So.2d 1059, 1065 (¶ 18) (Miss. Ct. App. 2004).

Tuesday, November 21, 2017

Book of Interest

I recently got a copy of Cross Examination, A Primer for the Family Lawyer.  A copy can be bought here.    Overall, it is a good book that can give the beginning family law attorney so ideas on where to go in cross-examination.  For the more experienced, it has some good samples of cross on psychologists and financial experts.

Friday, November 17, 2017

Tennessee Collateral Source

In a case closely watched by Tennessee lawyers, the Tennessee Supreme Court has declined to change the law on what evidence can be used to prove medical expenses in cases involving personal injury.  The Court held that Tennessee law continues to allow plaintiffs to use full, undiscounted medical bills to prove their medical expenses instead of the discounted amounts paid by insurance companies.

In a case filed in Crockett County, Jean Dedmon sued for injuries she sustained in a car accident.  Mrs. Dedmon attached the bills from her hospital and her doctors to her legal complaint.

While Mrs. Dedmon’s case was pending, the Tennessee Supreme Court issued its opinion in another case, West v. Shelby County Healthcare Corporation.  West involved a hospital’s legal claim, called a lien, for the full amount of patients’ unpaid medical expenses.  The Court in West observed that most hospitals routinely send bills to all patients, regardless of whether the patients have insurance. These bills are far larger than the discounted payments the hospitals have contractually agreed to accept from insurance companies for those patients that do have insurance.  Based upon the specific provisions of the lien statute, the West Court held that the hospital’s lien was limited to the discounted amounts paid by the patients’ insurance companies. 

After the Supreme Court’s decision in West was announced, the defendants in Dedmon argued to the trial court that West had also changed the law in Tennessee for all cases involving personal injuries. After West, they said, personal injury plaintiffs who have insurance can no longer use the full medical bills to prove their medical expenses.  The trial court in Dedmon agreed.  Based on West, it limited the plaintiffs’ proof on medical expenses to the discounted payments the hospital and doctors had contractually agreed to accept from Mrs. Dedmon’s insurance company. The plaintiffs appealed to the Court of Appeals.

The Court of Appeals reversed.  It held that West does not apply in personal injury cases outside the context of the lien statute.  Consequently, even plaintiffs who have insurance can use full, undiscounted medical bills to prove medical expenses. However, it also said that defendants can use discounted insurance payments to prove that the undiscounted bills are not reasonable.

The Tennessee Supreme Court agreed that its holding in West was not intended to apply to all personal injury cases.  West only applies to hospital lien cases.

The defendants nevertheless urged the Court to adopt a new approach.  They argued that courts should value medical services the same way as a house or a car, by the “fair market value.”  The discounted amounts paid by insurance companies are basically the “fair market value” of medical services, they said, so medical expense damages should be limited to the discounted insurance amounts.

The Supreme Court disagreed.  It explained that Tennessee has always followed the so-called “collateral source rule,” which means that payments and other benefits received by plaintiffs that do not come from the defendant — in other words, benefits that are “collateral” to the defendant — may not be used to reduce the defendant’s liability to the plaintiff.  The rule also prevents defendants from telling juries about plaintiffs’ insurance and other such benefits because it might cause juries to think the plaintiffs have already been paid for their injuries. 

The Court observed that, in recent years, health care has become extremely complex.  Pricing for medical services is distorted by many things, including deep discounts demanded by insurance companies, laws that require hospitals to treat patients who cannot pay, and benefits like TennCare that pay a set amount for all treatment of a patient.  One result has been a widening of the gap between hospitals’ standard rates for uninsured patients and the discounted amounts hospitals accept from insurance companies.

The Court looked in depth at different ways other states have handled this issue.  Only a few states have either limited plaintiffs’ medical expense damages to the discounted insurance amounts or allowed defendants to use the insurance payments to reduce their liability.  Both approaches are contrary to the collateral source rule. Both approaches would end up treating plaintiffs with insurance differently from plaintiffs without insurance. Neither approach takes into account benefits other than private insurance, such as TennCare, charity, or gifts.  

Importantly, the Court said, “it is evident that medical expenses cannot be valued in the same way one would value a house or a car,” since “health care services are highly regulated and rates are skewed by countless factors, only one of which is insurance.”  There is no reason to think the discounted insurance rates are a more accurate way for courts to determine the value of medical services.    

The Court acknowledged that the collateral source rule is imperfect.  It said that the defendants had “ably pointed out the shortcomings of the collateral source rule in the current health care environment.  They are substantial and we do not minimize them.”  However, the defendants had not pointed “to a better alternative.”

After its thorough review, the Court declined to alter existing law in Tennessee. It held that the collateral source rule applies in this case. As a result, the plaintiffs may use evidence of Mrs. Dedmon’s full, undiscounted medical bills as proof of her reasonable medical expenses. It held that the defendants may not use the discounted rates paid by Mrs. Dedmon’s insurance company for any purpose.  The defendants are free to use any other evidence to show that the full medical expenses are not reasonable, so long as that evidence does not violate the collateral source rule.       

To read the unanimous opinion in Jean Dedmon v. Debbie Steelman et al., authored by Justice Holly Kirby, go to the opinions section of

Wednesday, November 15, 2017

Criminal Conviction and Civil Defense

I am working on several cases currently where a party was criminally convicted and then we have filed a civil suit.  The criminal conviction precludes a defense to the civil liability on the case.  Below are some cases that illustrate this.

Criminal conviction precludes litigation of the same issue in a civil suit.   Jordan v. McKenna,  573 So.2d 1371, 1376 (Miss. 1990).  See also Hardin v. Aetna Casualty and Surety Company, 5 Cir.1967, 384 F.2d 718, cert. denied, 391 U.S. 971, 88 S.Ct. 2047, 20 L.Ed.2d 886; United States v. Fabric Garment Company, 2 Cir.1966, 366 F.2d 530; United States v. Gramling, 5 Cir.1950, 180 F.2d 498; Teitelbaum Furs, Inc. v. Dominion Insurance Company, 1962, 58 Cal.2d 601, 25 Cal.Rptr. 559, 375 P.2d 439; Taylor v. Taylor, 1962, 257 N.C. 130, 125 S.E.2d 373; In re Kravitz' Estate, 1965, 418 Pa. 319, 211 A.2d 443; Mineo v. Eureka Fire & Marine Insurance Company, 1956, 182 Pa.Super. 75, 125 A.2d 612; Eagle, Star and British Dominions Insurance Company v. Heller, 1927, 149 Va. 82, 140 S.E. 314, 57 A.L.R. 490; see Local 167 of International Bro'hood of Teamsters v. United States, 1934, 291 U.S. 293, 54 S.Ct. 396, 78 L.Ed. 804; Connecticut Fire Insurance Company v. Ferrara, 8 Cir.1960, 277 F.2d 388, cert. denied, 364 U.S. 903, 81 S.Ct. 231, 5 L.Ed.2d 195; Stagecrafters' Club, Inc. v. District of Columbia Division, D.D.C.1953, 111 F.Supp. 127.

See Breeland v. Security Insurance Co., 421 F.2d 918, 922 (5th Cir.1969) (summary judgment appropriate in civil case from opposing party been criminally convicted of the offense).   [A] conviction in a prior criminal case is conclusive, in a subsequent civil action, of the facts upon which the conviction was based.  United States Fidelity and Guaranty Co. v. Moore, 306 F.Supp. 1088. 1095 (N.D.Miss.1969):

Wednesday, November 8, 2017

Modification of Visitation Exchange Point

On Tuesday, the Mississippi Court of Appeals decided Smith v. Mull located here.  One of the interesting issues in the case was the modification of the dropoff point for visitation exchanges.

The Court explained that:

"When modification of visitation is at issue, the material change in circumstances test is not applicable because the court is not being asked to modify the permanent custody of the child.  To modify a visitation order, it must be shown that the prior decree for reasonable visitation is not working and that a modification is in the best interest of the child.  The chancellor has broad discretion to determine the specific times for visitation."

The Court ended up not modifying the visitation exchange since it was not shown to not be working and only benefited one parent.  This may be something to go over with clients who are contemplating moving.

Friday, November 3, 2017

Suit Against Yourself

On Thursday, the Mississippi Supreme Court decided Cyndy Howarth, Individually, Wife, Wrongful Death Beneficiary, and as Executrix of the Estate of Richard Howarth, Jr., Deceased, Juliet Howarth McDonald, Individually, Daughter, and as Wrongful Death Beneficiary of Richard Howarth, Jr., Deceased, and Cyndy Howarth, as Guardian, Natural Mother and Next Friend of Cynthia Howarth, a Minor and Wrongful Death Beneficiary of Richard Howarth, Jr., Deceased v. M & H Ventures, LLC.

In this case, the wrongful death beneficiaries sought to recover from M&H Ventures based on the negligent acts or omissions of the pilot, Howarth. But because Howarth was the sole member of M&H Ventures and it had no employees, M&H Ventures could act or fail to act only through Howarth.  The comparative negligence statute, Mississippi Code Section 11-7-15, provides:

In all actions hereafter brought for personal injuries, or where such injuries have resulted in death, or for injury to property, the fact that the person injured, or the owner of the property, or person having control over the property may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of the property, or the person having control over the property.
Miss. Code Ann. § 11-7-15 (Rev. 2004) (emphasis added).

As such, the Mississippi Supreme Court ruled that essentially one could not sue himself for damages.

Monday, October 30, 2017

Taxes and Innocent Spouse

Domestic abuse often includes control over finances. An important part of managing finances is understanding one’s tax rights. Taxpayers have the right to expect the IRS to consider facts and circumstances that might affect the individual’s taxes.

Taxpayers have the right to:

  • File a separate return even if they’re married.
  • Review the entire tax return before signing a joint return.
  • Review supporting documents for a joint return.
  • Refuse to sign a joint return.
  • Request more time to file their tax return.
  • Get copies of prior year tax returns from the IRS.
  • Seek independent legal advice.

Taxpayers also have the right to request relief from the liability shown on a joint return. This is known as innocent spouse relief. Here are a couple of examples:

Example 1:

  • A taxpayer signs a joint return with their spouse.
  • The taxpayer thought their spouse paid all taxes due.
  • The IRS contacts the taxpayer because the taxes shown on the joint return were not paid.

Example 2:

  • The taxpayer signs a joint return with their spouse.
  • The taxpayer didn’t know about their spouse’s unreported income or erroneous deductions.
  • The IRS adjusted the taxes due because of their spouse’s improper items.

To apply for Innocent Spouse Relief, a taxpayer fills out Form 8857, Request for Innocent Spouse Relief. More Information:

Wednesday, October 25, 2017

Get Autopsy Records

Is there a way to get autopsy records in Mississippi?  The next of kin can obtain the records with or without an estate being open.  Mississippi Code 41-10-3 provides that:

§ 41-10-3. Heirs of decedents authorized to obtain copy of decedent's medical records under certain circumstances; termination of authorization.

(1)  The following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise: 
(a) "Heir" means any person who is entitled to a distribution from the estate of an intestate decedent, or a person who would be entitled to a distribution from the estate of a testate decedent if that decedent had died intestate. 
(b) "Medical records" means any communications related to a patient's physical or mental health or condition that are recorded in any form or medium and that are maintained for purposes of patient diagnosis or treatment, including communications that are prepared by a health-care provider or by other providers.  The term does not include (i) materials that are prepared in connection with utilization review, peer review or quality assurance activities, or (ii) recorded telephone and radio communications to and from a publicly operated emergency dispatch office relating to requests for emergency services or reports of suspected criminal activity; however, the term includes communications that are recorded in any form or medium between emergency medical personnel and medical personnel concerning the diagnosis or treatment of a patient. 
(2)  Where no executor or administrator has been appointed by a chancery court of competent jurisdiction regarding the probate or administration of the estate of a decedent, any heir of the decedent shall be authorized to act on behalf of the decedent solely for the purpose of obtaining a copy of the decedent's medical records.  The authority shall not extend to any other property rights relating to the decedent's estate. 
(3)  A custodian of medical records may provide a copy of the decedent's medical records to an heir upon receipt of an affidavit by the heir stating that he or she meets the requirements of this section and that no executor or administrator has been appointed by a chancery court with respect to the estate of the decedent. 
(4)  The authority of the heir to act on behalf of the decedent shall terminate upon the appointment of an executor or administrator to act on behalf of the estate of the decedent.  However, the custodian of medical records shall be entitled to rely upon the affidavit of the heir until the custodian of medical records receives written notice of the appointment of an executor or administrator. 
(5)  A custodian of medical records shall not be required to provide more than three (3) heirs with a copy of the decedent's medical records before the appointment of an executor or administrator. 
(6)  The provisions of this section shall not prohibit an executor or administrator from requesting and receiving the medical records of a decedent after his or her appointment. 

Sunday, October 22, 2017

Irreconcilable Differences - Unconstitutional

Mississippi is one of only two states that does not have a unilateral no fault divorce ground.  Back in June, a chancellor held that the lack of a unilateral no fault divorce was unconstitutional. A link to the opinion is here.  The opinion is very detailed and constitutionally sound.  The case is currently up on appeal at the moment and a domestic violence group has filed an amicus brief located here.   

I would not be surprised if this case did not make it to the U.S. Supreme Court.  From a legal analysis standpoint, the opinion by the trial court makes sense. 

Thursday, October 19, 2017

Secured Creditor and Probate

a secured creditor with a lien on a decedent's property is not required to present a probate claim in order to enforce its lien. See Gandy v. Citicorp, 985 So.2d 371, 374 (¶12) (Miss. Ct. App. 2008) (probating the claim protects the mortgagee's right to claim a deficiency).
a secured creditor with a lien on a decedent's property is not required to present a probate claim in order to enforce its lien. See Gandy v. Citicorp, 985 So.2d 371, 374 (¶12) (Miss. Ct. App. 2008) (probating the claim protects the mortgagee's right to claim a deficiency). However, a secured creditor who wishes to recover from the estate's assets or enforce a probate claim for a deficiency must timely file a statement of claim in probate. Id.
Clearly, a secured creditor with a lien on a decedent's property is not required to present a probate claim in order to enforce its lien. See Gandy v. Citicorp, 985 So.2d 371, 374 (¶12) (Miss. Ct. App. 2008) (probating the claim protects the mortgagee's right to claim a deficiency). However, a secured creditor who wishes to recover from the estate's assets or enforce a probate claim for a deficiency must timely file a statement of claim in probate. Id.a
A secured creditor with a lien on a decedent's property is not required to present a probate claim in order to enforce its lien. See Gandy v. Citicorp, 985 So.2d 371, 374 (¶12) (Miss. Ct. App. 2008) (probating the claim protects the mortgagee's right to claim a deficiency). However, a secured creditor who wishes to recover from the estate's assets or enforce a probate claim for a deficiency must timely file a statement of claim in probate. Id.

Wednesday, October 18, 2017

Motion to Dismiss Standards - Federal Court

Below is information on determining whether a motion to dismiss in Federal Court should be granted. 
It has long been understood that a dismissal for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds: (1) a challenge to the "sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp.2d 204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review).

Because such dismissals are often based on the first ground, a few words regarding that ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court's view, this tension between permitting a "short and plain statement" and requiring that the statement "show[]" an entitlement to relief is often at the heart of misunderstandings that occur regarding the pleading standard established by Fed. R. Civ. P. 8(a)(2).

On the one hand, the Supreme Court has long characterized the "short and plain" pleading standard under Fed. R. Civ. P. 8(a)(2) as "simplified" and "liberal." Jackson, 549 F. Supp.2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by requiring the above-described "showing," the pleading standard under Fed. R. Civ. P. 8(a)(2) requires that the pleading contain a statement that "give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Jackson, 549 F. Supp.2d at 212, n.17 (citing Supreme Court cases) (emphasis added).

The Supreme Court has explained that such fair notice has the important purpose of "enabl[ing] the adverse party to answer and prepare for trial" and "facilitat[ing] a proper decision on the merits" by the court. Jackson, 549 F. Supp.2d at 212, n.18(citing Supreme Court cases); Rusyniak v. Gensini, 629 F. Supp.2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit cases). For this reason, as one commentator has correctly observed, the "liberal" notice pleading standard "has its limits." 2 Moore's Federal Practice § 12.34[1][b] at 12-61 (3d ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet the "liberal" notice pleading standard. Rusyniak,629 F. Supp.2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009).

Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court "retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly,127 S. Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim, the Court clarified, the "fair notice" standard turns on the plausibility of an actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a pleading need "set out in detail the facts upon which [the claim is based]," it does mean that the pleading must contain at least "some factual allegation[s]." Id. at 1965. More specifically, the "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level]," assuming (of course) that all the allegations in the complaint are true. Id.

As for the nature of what is "plausible," the Supreme Court explained that "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "[D]etermining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]-that the pleader is entitled to relief." Iqbal, 129 S.Ct. at 1950 [internal quotation marks and citations omitted]. However, while the plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully," id., it "does not impose a probability requirement." Twombly, 550 U.S. at 556.

Because of this requirement of factual allegations plausibly suggesting an entitlement to relief, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949. Similarly, a pleading that only "tenders naked assertions devoid of further factual enhancement" will not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (citations omitted).

This pleading standard applies even to pro se litigants. While the special leniency afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form of pleadings (as the Second Circuit has observed), it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Fed. R. Civ. P. 8, 10 and 12.[1] Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set forth in Fed. R. Civ. P. 8, 10 and 12 are procedural rules that even pro se civil rights plaintiffs must follow.[2] Stated more simply, when a plaintiff is proceeding pro se, "all normal rules of pleading are not absolutely suspended." Jackson, 549 F. Supp.2d at 214, n.28[citations omitted].[3]

Finally, a few words are appropriate regarding what documents are considered when a dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the four corners of the complaint may be considered without triggering the standard governing a motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer, (2) documents incorporated by reference in the complaint (and provided by the parties), (3) documents that, although not incorporated by reference, are "integral" to the complaint, or (4) any matter of which the court can take judicial notice for the factual background of the case.[4] Moreover, in the Second Circuit, a pro seplaintiff's papers in response to a defendant's motion to dismiss for failure to state a claim may be considered as effectively amending the allegations of his complaint-to the extent those papers are consistent with the allegations in the complaint.[5]
taken from:  Garassi v. Christian Trust located here.

Friday, October 13, 2017

School Expenses and Child Support

School expenses are normally considered part of child support.  Below is some caselaw dealing with it.

The Mississippi Supreme Court has stated that school tuition, at least in the context of college, is part of child support. See Mizell v. Mizell, 708 So.2d 55, 60 (Miss.1998). Any pre-college school requiring tuition in addition to what a public school education would cost should also be treated in this manner. Southerland v. Southerland, 816 So.2d 1004, 1006 (Miss. 2002).   The Mississippi Supreme Court has also stated that even where parents agree to send children to private school, support awards made in consideration of this expense must also be reasonable in light of both parents' financial means. Cupit v. Cupit, 559 So.2d 1035, 1038 (Miss.1990). 

Wednesday, October 11, 2017

Policy Violations and Negligence

Company polices can be used to prove negligence.  What the company policies show is foreseeablity.  If its in their manual, presumably the company knew about it and the risks.  As such, the failure to follow a policy is often times prima facie negligence.  

Friday, October 6, 2017

Heirship and Summons by Publication

I posted an article on summons by publication a while back located here.  One issue I thought of recently is on a petition to determine unknown heirs.  If the summons by publication language is not in there, I am of the opinion an order determining heirs would not be binding against an heir that appeared later.  It would be a good idea to update any pleadings to reflect this.

Saturday, September 30, 2017

Apportionment and the Caps

On Thursday, the Mississippi Supreme Court dismissed the cert petition granted in Mississippi Valley Silica Company, Inc. v. Dorothy Barnett, Individually and as Wrongful Death Beneficiary of Howard Barnett, Deceased, and on Behalf of All Wrongful Death Beneficiaries of Howard Barnett, Deceased finding that it was improvidently granted.  This left the Court of Appeals opinion as the law in place located here

The main issue of interest is how the caps on noneconomic damages apply when there is more than one Defendant.  Mississippi Code Section 11-1-60(2)(b) provides that “in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than One Million Dollars ($1,000,000.00) for noneconomic damages.”  The statute further provides that “[i]t is the intent of this section to limit all noneconomic damages to the above.”  Id.  Mississippi Code Section 85-5-7(2) provides that “the liability for damages caused by two (2) or more persons shall be several only, and not joint and several and a joint tort-feasor shall be liable only for the amount of damages allocated
to him in direct proportion to his percentage of fault.”.

Reading these two together, the defendants are assigned their amount of fault by the jury, then the caps are applied only to their portion of liability. 

Thursday, September 21, 2017

Worker's Compensation and Social Security

Many times, an individual on worker's compensation later gets social security disability.  How does a lump sum payment affect social security?  The answer depends on how the settlement documents are drafted.  Worker’s compensation attorneys often try to draft settlement agreements to minimize any offset of SSDI benefits. Social Security will look at the language of the worker’s compensation settlement document to decide how much of the settlement is subject to offset.

For example, Mr. Smith's attorney might specify that the $24,000 is meant to be a $50 per month payment for every month until he reaches 65 ($24,000/480 months). Social Security would calculate any SSDI offset based on $50 per month for 480 months. Because Mr. Jones would have a lower monthly income from workers' comp, he would lose less SSDI, or might escape the offset entirely.

Monday, September 18, 2017

Language to Consider in Email Disclaimer

Below are some samples of language that may need to be added to your attorney email disclaimer.

  1. DO NOT read, copy, or disseminate this communication unless you are the intended addressee. This email communication contains confidential and/or privileged information intended only for the addressee. Anyone who receives this email by error should treat it as confidential and is asked to call (collect) _ _[name of law firm]_ _ at _ _[phone number]_ _ or reply by email: _ _[law firm’s email address]_ _; or by fax: _ _[law firm’s fax no.]_ _.
  2. This email transmission may not be secure and may be illegally intercepted. Do not forward or disseminate this email to any third party. Unauthorized interception of this email is a violation of federal law.
  3. Any reliance on the information contained in this correspondence by someone who has not entered into a fee agreement with _ _[name of law firm]_ _ is taken at the reader’s own risk.
  4. The attorneys of _ _[name of law firm]_ _ are licensed to practice law ONLY in California and do not intend to give advice to anyone on any legal matter not involving California law.

Wednesday, September 13, 2017

Medical Causation Language

The Mississippi Court of Appeals decided City of Jackson v. Graham on Tuesday located here.  The opinion had the clearest statement on medical bills I am aware of in a personal injury case. The Court stated “Proof that medical, hospital, and doctor bills were paid  or  incurred  because of  any  illness,  disease,  or  injury   shall  be prima  facie  evidence that  such  bills  so  paid  or  incurred  were necessary  and  reasonable.”    Boggs  v.  Hawks,  772  So. 2d  1082,  1085  (¶7)  (Miss.  Ct.  App.  2000);  see  also  Miss. Code  Ann.  §  41-9-119  (Rev.  1993). Further,  the  supreme  court  has  previously  held  that,  “when  a  party  takes  the  witness  stand  and exhibits  bills  for  examination  by  the  court  and  testifies  that  said  bills  were  incurred  as  a  result of  the  injuries  complained  of,  they  become  prima  facie  evidence  that  the  bills  so  paid  or incurred  were necessary  and  reasonable.”    Jackson  v.  Brumfield,  458  So.  2d  736,  737  (Miss. 1984).    “However,  the  opposing  party  may,  if  desired,  rebut  the  necessity  and  reasonableness of the bills by proper evidence.” Id.“The ultimate question is then for the [fact-finder] to determine.”  Id.   The law in this area is certainly easier than in Tennessee where all of those have to be shown normally by doctor's deposition of every doctor.

Friday, September 8, 2017

Pedestrian claims

I saw a creative argument on a pedestrian claim a few days ago.  It appears that several insurance policies have been written to provide for medical payment coverage to people "upon" a vehicle which is how occupancy is defined in automobile policies.  As such, it appears that you can get medpay coverage from the at fault diver in addition to the regular coverage from an at fault driver since the pedestrian is upon them for being hit.  Sounds funny, but does appear to fly no pun intended.  

Friday, September 1, 2017

Child Hostility and Child Support

Yesterday, the Mississippi Supreme Court decided Copeland v. Copeland located here.  The issue in the case is when does the hostility of a child warrant child support being forfeited?  The Court ruled that when the conduct is clear and extreme, it warrants termination even for teenagers.  The Court further found that when the trial court finds this conduct, the child support guidelines are not applicable.

Tuesday, August 29, 2017

Toxic Substance and Expert Testimony

The Fifth Circuit has held that expert testimony is required to prove that a
toxic substance caused a specific physical injury. See Washington v. Armstrong World
Industries, Inc.,
839 F.2d 1121, 1123-24 (5th Cir. 1988) (affirming district court's grant of
summary judgment where admissible expert testimony was lacking to prove asbestos exposure
caused plaintiff's injury). In a toxic mold case, Smith v. ADT Security Services, Inc., 2006 U.S. Dist. LEXIS 70109, No. 3:04-cv-104-HTW-JCS (S.D. Miss. Sept. 26, 2006), the court held that "[i]n order to prevail on his claim for physical injury, plaintiff must demonstrate by a reasonable medical probability through expert testimony that his alleged injuries were caused by mold exposure." Id. (citing Bryant v. Metric Prop. Mgmt., 2004 U.S. Dist. LEXIS 11214, No. 4:03cv212Y, 2004 WL 1359526, at *7 (N.D. Tex. June 17, 2004)). See also Roche v. Lincoln Prop. Co., 278 F. Supp. 2d 744, 750 (E.D. Va. 2003) (stating that the lack of expert testimony is fatal to a plaintiff's claim for specific physical injury resulting from mold exposure).

Thursday, August 17, 2017

Triggering the Appointment of a Guardian Ad Litem and Attorney's Fees

When is a guardian ad litem required in a custody case?   When is a party entitled to attorney's fees for having to defend and allegation of abuse and/or neglect?  The answers to these questions appear in Carter v. Carter 204 So.3d 747 (Miss. 2016) located here.  The allegations have to be of the type to trigger the jurisdiction of the Youth Court.  As such, mere allegations of bad parenting are not enough.  With that being said, if the allegations are not sufficient to trigger the provisions of 93-5-23, there is no basis to award attorney's fees for having to defend the allegations. 

Friday, August 11, 2017


In Mississippi uninsured and underinsured (UM) stacking is permitted for “Class I” insureds (named insureds and resident relatives), generally, and more limited for “Class II” (permissive drivers and guest passengers).  Meyers v. American States Ins. Co., 914 So. 2d 669, 674 (Miss. 2005).  Class II insureds can only stack the accident vehicles’ coverage with any of his or her own personal coverage (i.e. other coverage he or she qualifies as an “insured” on).  A Class II insured does not have the right to stack an employer’s uninsured motorist coverage unless policy language provides otherwise.  Deaton v. Mississippi Farm Bureau Cas. Ins. Co., 994 So. 164, 167 (Miss. 2008).  Anti-stacking provisions in policies are void.  I have been able to use this in the past to stack coverages for Mississippi clients involved in accidents in other states using conflict of laws regarding contracts.

Tuesday, August 8, 2017

Enforcing Tennessee Settlements

Some good language to file away if a party in Tennessee tries to back out of an agreement:

Tennessee courts "now uniformly hold that if the terms of a settlement are announced to the court or memorialized in a signed, enforceable contract, a judgment may be entered thereon, even if one party later repudiates."  Grigsby v. Harris, 2012 Tenn. App. LEXIS 860, *8 (Tenn. Ct. App. Dec. 12, 2012) (citing In re Estate of Creswell, 238 S.W.3d 263, 268 (Tenn. Ct. App. 2007)).

Thursday, August 3, 2017

Exhaustion of Insurance Coverage

In Mississippi, if an insured does proceed to obtain the liability or other UM proceeds, he or she is generally not required to fully exhaust those limits.  The Mississippi Supreme Court in Mississippi Farm Bureau Mut. Ins. Co. v. Garrett, 487 So. 2d 1320 (Miss. 1986) held that in interpreting a requirement that an insured first obtain other “available” insurance, the term essentially implies a substantial exhaustion (i.e. having in mind the nature and extent of injuries, liability, settlement offered, and discounted by the costs and risks of seeking a greater sum).  What this means is that the failure to get full policy limits does not mean that you cannot get proceeds from the underinsured motorist policy. 

Tuesday, July 25, 2017

CLE Tomorrow

I am speaking at a Family Law CLE in Olive Branch tomorrow.  A link is here.

Wednesday, July 19, 2017

Reduction of Alimony

On Tuesday, the Mississippi Court of Appeals decided Plummer v. Plummer located here.  One of the issues in the case was the termination of alimony based on the recipient's increase in earning ability.  The Court of Appeals affirmed the chancellor reducing the alimony as the ex-wife was making more.  There was a lot of ideas floating around that only a decrease or change in the payor could justify a reduction.  This case says otherwise and is good to file away.       

Thursday, July 13, 2017

Time and the Rules

Got this info today and thought it was useful from the Federal Rules of Civil Procedure.  It deals with how "Next Day” is defined in FRCP 6(a)(5).

If your deadline is thirty days after an event (i.e. 20 days after a complaint is filed), and that date ends up on a weekend or holiday, your due date is the next business day counting forward (Monday, for example, if a weekend).

HOWEVER, if the deadline is thirty days before an event (i.e. thirty days prior to trial), you count backwards from the event and, if that date ends up on a weekend or holiday, your date is the next business day COUNTING BACKWARDS (that’s a Friday).

Monday, July 10, 2017

CFPB Rule Bans Using Arbitration Clauses To Bar Class Actions

The Consumer Financial Protection Bureau on Monday issued a final rule banning companies from using arbitration clauses to bar consumers from filing class action lawsuits, setting up a fight with banks, credit card and other companies and potentially the Trump administration.

The CFPB said that mandatory arbitration clauses with class action litigation bans serve as a break on consumers recovering on small dollar disputes with credit card companies and other lenders. As a result, many consumers think they are unable to pursue small-dollar disputes or do not think that the ultimate payout would be worth the trouble, allowing companies to wrong consumers with little consequence, the CFPB said.

To address that problem, the CFPB said that companies would no longer be allowed to put such class action bans in their arbitration clauses, allowing consumers to band together in group lawsuits when they have suffered similar problems.

“Arbitration clauses in contracts for products like bank accounts and credit cards make it nearly impossible for people to take companies to court when things go wrong," CFPB Director Richard Cordray said in a statement. "These clauses allow companies to avoid accountability by blocking group lawsuits and forcing people to go it alone or give up.”

However, the rule does not ban arbitration clauses, which allow companies to take consumers into binding legal settlements with arbitrators paid for by the company. Consumer advocates had hoped the CFPB would take that step.

However, the rule does make changes to the arbitration process for individuals by forcing companies to submit information about individual cases to the bureau that would be published on the CFPB’s website. Included in the list of items companies will have to disclose are initial claims and counterclaims, answers to these claims and counterclaims, and awards issued in arbitration.

The information will be posted beginning in July 2019.

Wednesday, July 5, 2017

Keyboard of Interest

Found a cool keyboard online that may give a try out.  Apparently, there are computer keyboards designed for lawyers now.  They can be purchased here.

Friday, June 30, 2017

Bankrutpcy and Taxes

There is a common misconception that income taxes are never dischargeable in bankruptcy. In fact, you can discharge some back federal, state, and local income taxes in Chapter 7Chapter 13, and Chapter 11 bankruptcy. Moreover, the penalties and interest attached to these taxes are dischargeable as well. Determining which back taxes are dischargeable can be a complex process. Nonetheless, it is possible to discharge significant income tax debt in bankruptcy, if your tax debt fits within certain rules.


The Bankruptcy Code sets out specific time periods that determine if you can discharge your taxes, commonly called the 3-year, 2-year, and 240-day rules (the “3-2-240 rules”). Under these rules, you can discharge income taxes that came due three years before you file for bankruptcy, as long as it has been at least two years since you filed the tax forms and 240 days since the taxes were assessed. There are some exceptions, and these rules do not apply to other types of taxes, such as property taxes.

To discharge back income taxes, be aware that you must meet the requirements of all three rules.

1. The 3-Year Rule. This rule states that to discharge your back income taxes, they must become due at least three years before you file for bankruptcy. Bankruptcy Code §507(a)(8)(A)(i). Typically, your federal and most state income taxes become due on or around April 15th of each year. In most cases, it is simply a matter of adding three years to this due date to determine the earliest date you can file for bankruptcy and still discharge your taxes.

2. The 2-Year Rule. Under the 2-year rule, your income tax returns must have been filed at least two years before you file your bankruptcy petition. This requirement allows you to discharge your taxes even if you file your tax forms late, as long as you file the forms at least two years before filing for bankruptcy. §523(a)(1)(b)(ii).

3. The 240-Day Rule. Taxes must have been assessed by the taxing agency at least 240 days before you file for bankruptcy under this rule or not assessed at all. As a practical matter, the original date of assessment is typically on or near the date you file your income tax form (assuming the IRS or other taxing agency agree on the amount of taxes owed).

Wednesday, June 28, 2017

Book of Interest

Over the weekend, I got Electronic Evidence for Family Law Attorneys by Timothy J. Conlon and Aaron Hughes in the mail.  It is a fairly short read but has some extremely useful information on electronic evidence such as Facebook, Twitter, etc. along with how to get it.  It can be purchased here.

Wednesday, June 21, 2017

Guardian Ad Litem Fee Reporting Requirements

The Mississippi Legislature has passed Senate Bill 2673 located here.  Guardian ad litems are now required to report the amount of fees they charge in a contested proceeding when the amount exceeds $1,000.00 to the Chancery Clerk.  

Wednesday, June 14, 2017

Natural Parent Presumption

On Tuesday, the Mississippi Court of Appeals decided Bradshaw v. Moore located here.  One interesting issue in the case was that the mother's parents had guardianship of the minor child.  However, the father was never given notice of the guardianship.  Ultimately, the guardianship was set aside for lack of notice and the mother was given custody.  The father appealed and argued that he was entitled to custody since the mother had given up custody through the court.  However, the proof showed that this was done for financial reasons and was later declared void.  As such, the natural parent presumption which is normally lost by giving up custody through the court was still intact. 

Wednesday, June 7, 2017


In 2010, Mississippi enacted the Uniform Child Abduction Prevention Act (UCAPA). This statute is designed to give the Courts the authority to prevent child abduction in parental custody/visitation disputes. This statute, in conjunction with the UCCJEA regarding interstate jurisdictional determinations, provides remedies to  prevent abduction by providing for injunctive relief upon a demonstration of a credible “risk of abduction.”   This is useful in preventing a parent from leaving the state or country with a child potentially. 

The statutes provides the following;
§ 93-29-13. Factors to determine risk of abduction.
(a)  In determining whether there is a credible risk of abduction of a child, the court shall consider any evidence that the petitioner or respondent:
(1) Has previously abducted or attempted to abduct the child;
(2) Has threatened to abduct the child;
(3) Has recently engaged in activities that may indicate a planned abduction, including:
(A) Abandoning employment;
(B) Selling a primary residence;
(C) Terminating a lease;
(D) Closing bank or other financial management accounts, liquidating assets, hiding or destroying financial documents or conducting any unusual financial activities;
(E) Applying for a passport or visa or obtaining travel documents for the respondent, a family member or the child; or
(F) Seeking to obtain the child’s birth certificate or school or medial records;
(4) Has engaged in domestic violence, stalking or child abuse or neglect;
(5) Has refused to follow a child-custody determination;
(6) Lacks strong familial, financial, emotional or cultural ties to the state or the United States;
(7) Has strong familial, financial emotional or cultural ties to another state or country;
(8) Is likely to take the child to a country that:
(A) Is not a party to the Hague Convention on the Civil Aspects of International Child Abduction and does not provide for the extradition of an abducting parent or for the return of an abducted child;
(B) Is party to the Hague Convention on the Civil Aspects of International Child Abduction but:
(i) The Hague Convention on the Civil Aspects of International Child Abduction is not in force between the United States and that country;
(ii) Is noncompliant according to the most recent compliance report issued by the United States Department of State; or
(iii) Lacks legal mechanisms for immediately and effectively enforcing a return order under the Hague Convention on the Civil Aspects of International Child Abduction;
(C) Poses a risk that the child’s physical or emotional health or safety would be endangered in the country because of specific circumstances relating to the child or because of human rights violations committed against children;
(D) Has laws or practices that would:
(i) Enable the respondent, without due cause, to prevent the petitioner from contacting the child;
(ii) Restrict the petitioner from freely traveling to or exiting from the country because of the petitioner’s gender, nationality, marital status or religion; or
(iii) Restrict the child’s ability legally to leave the country after the child reaches the age of majority because of a child’s gender, nationality or religion;
(E) Is included by the United States Department of State on a current list of state sponsors of terrorism;
(F) Does not have an official United States diplomatic presence in the country; or
(G) Is engaged in active military action or war, including a civil war, to which the child may be exposed;
(9) Is undergoing a change in immigration or citizenship status that would adversely affect the respondent’s ability to remain in the United States legally;
(10) Has had an application for United States citizenship denied;
(11) Has forged or presented misleading or false evidence on government forms or supporting documents to obtain or attempt to obtain a passport, a visa, travel documents, a social security card, a driver’s license or other government-issued identification card or has made a misrepresentation to the United States government;
(12) Has used multiple names to attempt to mislead or defraud; or
(13) Has engaged in any other conduct the court considers relevant to the risk of abduction.
(b)  In the hearing on a petition under this chapter, the court shall consider any evidence that the respondent believed in good faith that the respondent’s conduct was necessary to avoid imminent harm to the child or respondent and any other evidence that may be relevant to whether the respondent may be permitted to remove or retain the child.
Miss. Code Ann. §93-29-1 et. seq.

Friday, June 2, 2017

App of Interest

The scanning and exchange of documents has become the rule in legal matters. Many times clients do not have access to the same kind of equipment as attorneys and they struggle with how
to get documents to the attorneys. Often times, clients will take pictures of documents and send the pictures by email or text to the attorneys. This often results in documents being unreadable or
unusable. There is an app called Evernote scannable, which clients can easily use on their cell phone to scan documents and send them in a format which is readable and usable.