Friday, December 21, 2018

Tennessee Punitive Damages Caps Found Unconstitutional

On December 21, 2018, the 6th Circuit found the statutory cap on punitive damages in Tennessee unconstitutional.  A link to the opinion is here.

Monday, December 10, 2018

Overnight Guest vs. Cohabitation

On October 30, 2018, the Mississippi Court of Appeals decided Bruton v. Bruton, No. 2017-CA-00124-COA (Miss. Ct. App. Oct. 30, 2018) located here.  One of the interesting issues in the case was that the Court of Appeals found the chancellor erred in holding a party in contempt for having a member of the opposite sex not related by blood or marriage stay overnight when the children were present.  The Court found  that the individual Mr. Burton was living with he was cohabitating with.  As such, she was not an "overnight guest."  The Court reasoned that the caselaw distinguishes from cohabitation and overnight guests.   This drew one of the funniest dissents I have seen where Judge Barnes noted "Further, as only "guests" are prohibited under the majority's analysis, Chuck would not have been in contempt of the order had he hired a prostitute to spend the night with the children present. She would, of course, have been an "invitee" rather than a "guest."  The moral of the case is that language in the order must be abundantly clear or a finding of contempt is not proper.

Thursday, December 6, 2018

Modification of Child Support

A trial court may award retroactive child support dating back to the time in which the
motion for modification is filed.   See Lawrence v. Lawrence, 574 So. 2d 1376, 1384 (Miss.
1991).

Wednesday, November 28, 2018

Taxability of Personal Injury Settlements

The IRS has a guide on when personal injury settlements may be taxed and when they are not located here.

Tuesday, November 27, 2018

Reopening A Divorce

On November 20, 2018, the Mississippi Court of Appeals decided Nelson vs. Nelson located here.  One of the issues in the case was whether a trial court could reopen a divorce where an asset was not disclosed.  In this case, the Court of Appeal determined the trial court can because the asset was intentionally hid during the divorce.

Wednesday, November 7, 2018

Jury Instructions on Appeal

Jury instructions “are to be taken collectively rather than be given individual consideration.  So long as all the instructions read together adequately and properly instruct the jury on the issues, an individual instruction given to the jury will not constitute reversible error.”  Detroit Marine Eng’g v. McRee, 510 So. 2d 462, 467-68 (Miss. 1987).

Tuesday, October 16, 2018

Appellate Jurisdiction






In most suits, the trial judge loses all jurisdiction once a case is appealed. McNeil v. Hester, 753 So.2d 1057, 1075-76 (Miss.2000). A chancellor, however, may modify child support, custody and visitation while a case is on appeal if a proper basis for doing so is shown. The court may re-examine the question of custody or support at anytime on showing a change of conditions, regardless of the pendency of an appeal. It may, and sometimes does, require many months to determine a case on appeal.  Smith v. Necaise, 357 So.2d 931, 933 (Miss. 1978), quoting DeSimone v. DeSimone, 392 S.W.2d 68, 68-69 (Ky.1965).



The Mississippi Supreme Court says an appeal with supersedeas does not vacate the judgment appealed from; it merely suspends the enforcement of the judgment pending the determination of the appeal. If on that determination the judgment is affirmed, the effect thereof is to establish or confirm the validity of the judgment from and as the date of its rendition in the court of original jurisdiction. See also Klaas v. Continental Southern Lines, 225 Miss. 94, 82 So.2d 705, 708. The Court said: "Clearly the judgments of the trial court were the effective adjudications of plaintiffs' rights. Their effect was suspended during appeal with supersedeas to the Supreme Court, but our judgment simply affirmed the validity of the judgments of the circuit court" See also Stone v. McKay Plumbing Co., 200 Miss. 792, 26 So.2d 349, 30 So.2d 91; Lyle Cashion Co. v. McKendrick, 227 Miss. 894, 87 So.2d 289.

A party may execute on the judgment if an appeal has no supersedeas bond; however, "the [chancery] court cannot `broaden, amend, modify, vacate, clarify, or rehear the decree.'" Id. (citation omitted).  

Monday, October 8, 2018

Contractor Attorney's Fees in Tennessee

  • In Tennessee, a contractor may recover attorney's fees under Tennessee Code 66-34-602.  The statute provides that. 

    • (1) A contractor who has not received payment from an owner, or a subcontractor, materialman or furnisher who has not received payment from a contractor or other subcontractor, materialman or furnisher, in accordance with this chapter, shall notify the party failing to make payment of the provisions of this chapter and of the notifying party's intent to seek relief provided for within this chapter.
    • (2) The notification shall be made by registered or certified mail, return receipt requested.
    • (3) If the notified party does not, within ten (10) calendar days after receipt of such notice, make payment or provide to the notifying party a response giving adequate legal reasons for failure of the notified party to make payment, the notifying party may, in addition to all other remedies available at law or in equity, sue for equitable relief, including injunctive relief, for continuing violations of this chapter, in the chancery court of the county in which the real property is located.
    • (4) The failure to make the only payment due under the contract may be considered to be a continuing violation under this chapter.
  • (b) Reasonable attorney's fees may be awarded against the nonprevailing party; provided, that such nonprevailing party has acted in bad faith.
  • (c) A bond in double the amount claimed or ordered to be paid shall be filed with good sureties to be approved by the clerk prior to the issuance of any injunctive relief.


Wednesday, October 3, 2018

Statute of Interest

§ 89-1-7. Estate in two or more persons


Universal Citation: MS Code § 89-1-7 (2017)
All conveyances or devises of land made to two (2) or more persons, including conveyances or devises to husband and wife, shall be construed to create estates in common and not in joint tenancy or entirety, unless it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy or entirety with the right of survivorship. But an estate in joint tenancy or entirety with right of survivorship may be created by such conveyance from the owner or owners to himself, themselves or others, or to himself, themselves and others.  An estate in joint tenancy or entirety with right of survivorship between spouses may be terminated by deed of one spouse to the other without necessity of joinder of the grantee spouse and without regard to whether the property constitutes any part of the homestead of the spouses.

Friday, September 28, 2018

Pro Se Party's Representative

Every now and then a pro se party will have someone call on their behalf who is not an attorney.  This is normally a parent or spouse.  This person could, in theory, be practicing law without a license.  The best bet is for that person to have a power of attorney over the pro se party to avoid this issue.

Thursday, September 20, 2018

Restore Rights to Firearms

Is there a way for a prohibited person to restore his or her right to receive or possess firearms and ammunition?

Although Federal law provides a means for the relief of firearms disabilities, since October 1992, ATF’s annual appropriation has prohibited the expending of any funds to investigate or act upon applications for relief from Federal firearms disabilities submitted by individuals. As long as this provision is included in current ATF appropriations, the Bureau cannot act upon applications for relief from Federal firearms disabilities submitted by individuals.
[18 U.S.C. 925(c); 27 CFR 478.144]

Wednesday, September 19, 2018

Tennesse Service of Process on Sunday

In Tennessee, with the exceptions contained in §§ 20-2-104 and 20-2-105, civil process shall not be executed on Sunday.  Tennessee Code Annotated § 20-2-106.  

Tuesday, September 11, 2018

When is a Divorce Final?

Today, the Mississippi Court of Appeals decided Arrington vs. Arrington located here.  The issue in the case was that a final decree was signed by the chancellor but never filed with the Chancery Court. By the time it was filed, one of the parties had contested the decree.  The Court of Appeals found that Rule 58 clearly provides that “[a] judgment shall be effective only when entered as provided in Rule 79(a).”  (Emphasis added).  Rule 79(a) requires the clerk to keep a “general docket” and to enter “all . . . judgments.”  Thus, we may conclude that a judgment is not final until it is recorded in the clerk’s general docket.  M.R.C.P. 58, 79(a).   As a result, the parties were back at square one on a divorce action.

Friday, September 7, 2018

Guardian Ad Litem - Not Necessarily Required in Uncontested Termination of Parental Rights

Pursuant to Mississippi Code §93-15-107 (1)(d), the Court in its discretion may waive the appointment of a guardian ad litem where the termination of parental rights is by a written, voluntary consent. 

Tuesday, August 28, 2018

Tennessee Case of Interest

Where a plaintiff has signed a settlement agreement swearing that such agreement is “fair and equitable,” she may be judicially estopped from later bringing a legal malpractice claim based on that same settlement.    Kershaw v. Levy, No. M2017-01129-COA-R3-CV (No. M2017-01129-COA-R3-CV).

Monday, August 20, 2018

Releasing One Tortfeasor

What happens when you settle with one tortfeasor, but not another?  In Medley v. Webb, 288 So. 2d 846, 848-49 (Miss. 1974), the Mississippi Supreme Court found that there is “no doubt that a plaintiff may sue another joint tortfeasor” after releasing the other alleged tortfeasor from liability. Further, the Court has delineated the difference between being jointly liable and being a joint tortfeasor. See J&J Timber Co. v. Broome, 932 So. 2d 1, 7 (Miss. 2006) (“Joint tortfeasor claims arise where the separate wrongful conduct of two or more individuals combine to cause an injury, and each because his wrongful conduct bears some responsibility for the injury.” (quoting Richardson v. APAC-Mississippi, Inc., 631 So. 2d 143, 151 n.7 (Miss. 1994))).  The key distinction is whether the claimant is settling with one joint tortfeasor and then pursuing a remedy against another, independently liable, tortfeasor. Id.

Monday, August 13, 2018

Rule 60 - Fraud and Mistake

Below is an excerpt from a brief I am working on dealing with fraud and mistake under Rule 60 of the Mississippi Rules of Civil Procedure.

"Rule 60(b)(1) deals with relief from judgment obtained by fraud, misrepresentation, or other misconduct of the adverse party." Stringfellow v. Stringfellow, 451 So. 2d 219, 221 (Miss. 1984) (emphasis added).  A party is not entitled to relief merely because he is unhappy with the judgment, but he must make some showing that he was justified in failing to avoid mistake or inadvertence; gross negligence, ignorance of the rules, or ignorance of the law is not enough. King v. King, 556 So.2d 716, 722 (Miss. 1990).  A party seeking to set aside an order based on fraud or mistake must prove four things: (1) that the facts constituting the fraud... [or] mistake ... must have been the controlling factors in the effectuation of the original decree, without which the decree would not have been made as it was made; (2) the facts justifying the relief must be clearly and positively alleged as facts and must be clearly and convincingly proved; (3) the facts must not have been known to the injured party at the time of the original decree; and (4) the ignorance thereof at the time must not have been the result of the want of reasonable care and diligence.  Rogers v. Rogers, 94 So.3d 1258, 1264 (¶ 19) (Miss. Ct. App. 2012) (quoting Manning v. Tanner, 594 So.2d 1164, 1167 363*363 (Miss. 1992)); accord Jenkins v. Jenkins, 757 So.2d 339, 343 (¶ 8) (Miss. Ct. App. 2000) (quoting Guthrie v. Guthrie, 226 Miss. 190, 84 So.2d 158, 161 (1955). 

Friday, August 3, 2018

Death of a Fetus: Mississippi vs. Tennessee

The Mississippi Supreme Court has held that a mother is entitled to bring a wrongful-death claim for the death of a nonviable fetus. 66 Fed. Credit Union v. Tucker, 853 So. 2d 104 (Miss. 2003).  Prior to Tucker, Mississippi’s Wrongful Death Act created a cause of action for “the wrongful death of an unborn child where the fetus was viable at the time of death.” Id. at 108 (citing Sweeney v. Preston, 642 So. 2d 332 (Miss. 1994); Terrell v. Rankin, 511 So. 2d 126 (Miss. 1987); Rainey v. Horn, 221 Miss. 269, 72 So. 2d 434 (1954)).Tennessee wrongful-death claims allow recovery only for unborn children deemed “viable” at the time of death. See Tenn. Code § 20-5-106(d).

Thursday, July 26, 2018

Frivolous Motions

When is a motion frivolous in Mississippi?   "A pleading or motion is frivolous within the meaning of Rule 11 only when, objectively speaking, the pleader or movant has no hope of success." Leaf River Forest Prods., Inc. v. Deakle, 661 So.2d 188, 195 (Miss. 1995). A claim that is merely "weak" or "light-headed" does not meet this definition of frivolous. Id.

Monday, July 23, 2018

Winding Up Affairs of a Company


Can a dissolve company sign a deed or other items to wrap up their affairs if they are dissolved.  The answer in Mississippi seems to be yes.  Mississippi Code 79-29-809 (2) provides that for limited liability companies, they can:  "(2) Upon dissolution of a limited liability company, the persons winding-up the limited liability company's affairs may, in the name of, and for and on behalf of, the limited liability company, prosecute and defend suits, whether civil, criminal or administrative, gradually settle and close the limited liability company's business, dispose of and convey the limited liability company's property, discharge or make reasonable provision for the limited liability company's liabilities, and distribute to the members any remaining assets of the limited liability company, all without affecting the liability of members and managers and without imposing liability on a liquidating trustee."

Wednesday, July 18, 2018

Conservatorship to Probate

Most attorney's are not aware that a conservatorship is to be converted to a probate once the ward dies if there is no will.  Mississippi Code Annotated 91-7-68 provides that:

"Upon the death intestate of any person under legal disability for whom a guardian, conservator or other fiduciary has been appointed by a court of competent jurisdiction and is serving, the judge or clerk of such court, upon proof of death of such person, may issue letters of administration to the already acting fiduciary, unless some relative or other person entitled to administer the estate shall within thirty days after the death of such person apply to the court for such administration. Upon the issuance of letters of administration to the already acting fiduciary, such fiduciary shall thereupon publish notice to creditors and administer the decedent's estate in the manner required by law. Such fiduciary's bond shall continue in force and he shall make only one (1) final account, unless the court, on the motion of any interested party or its own motion, shall require additional bond or accounting."

Saturday, July 14, 2018

Habitual Drunkenness


Mississippi still has the divorce ground of habitual drunkenness.  “A court may grant a divorce on the ground of habitual drunkenness if the plaintiff proves that: (1) the defendant frequently abused alcohol; (2) the alcohol abuse negatively affected the marriage; and (3) the alcohol abuse continued at the time of the trial.” Turner v. Turner, 73 So. 3d 576, 583 (¶30) (Miss. Ct. App. 2011).   In Sproles v. Sproles, 782 So. 2d 742, 744-45 (¶¶4,7) (Miss. 2001), the court found that the husband’s habit of drinking a case of beer each night, which caused him to become abusive and critical, constituted grounds for divorce under habitual drunkenness. On the other hand, in Culver v. Culver, 383 So. 2d 817, 817-18 (Miss. 1980), the court found that the husband’s habit of drinking four to five beers a night that did not negatively impact the marriage failed to support a divorce under habitual drunkenness.  Question I have is what proof is needed that the drinking continues?  What happens if they just don't drink at trial and then start drinking there?

Sunday, July 1, 2018

Marital Fault

I came across this in an opinion and found it helpful in determining when fault should be considered by the trial court.  Marital misconduct is a viable factor entitled to be given weight by the chancellor when the misconduct places a burden on the stability and harmony of the marital and family relationship." Bond v. Bond, 69 So. 3d 771, 773 (¶6) (Miss. 2011) (citing Carrow v. Carrow, 642 So. 2d 901, 904 (Miss. 1994)). Where the only evidence of adultery occurred after the couple's separation; it is not error in refusing to give weight to this factor as there was no evidence that it harmed the marital relationship.

Tuesday, June 19, 2018

Contractual Changes to Child Support

The Mississippi Court of Appeals decided Campbell vs. Campbell today located here.  The general facts were that the father was extremely high income and the parties signed a property settlement agreement that had a per child support order. (i.e. $1,250.00 per child).   The Father was also paying way below the child support guidelines.  The Court of Appeals reversed the chancellor raising the child support to the guideline amounts as the parties had contemplated emancipation of the children on a per child basis.  As such, the trial court could not modify the support to increase it since the emancipating was contemplated by the agreement.  My reading of this case also is that the parties can agree to pay less than the statutory amounts of child support as part of a package divorce deal. 

The child support provision is as follows:    "The Husband agrees to pay to the Wife as child support the sum of $1,250 per month per child, beginning June 1, 2010 and continuing on the first day of each month thereafter until said children attain the age of 21, marry, join the armed services or are otherwise fully emancipated according to law, whichever occurs first. The parties acknowledge and agree that the Husband's current monthly gross income is $66,666.67."

Tuesday, June 12, 2018

Save the Date

I'll be speaking at a CLE next month on Advanced Trial Techniques on July 27, 2018 in Southaven.  A link to the information is here

Thursday, May 31, 2018

Changing Gender on Birth Certificate in Mississippi

Mississippi will issue an amended birth certificate upon receipt of "a certified court order, a medical statement that attests to the reassignment, and the required fee." Miss. Admin. Code 15-5-85:3.21. Mississippi Vital Records will issue an amended birth certificate with the legally updated name and sex as a "marginal notation", meaning the birth certificate will show both names and both genders. To apply for an updated birth certificate the applicant should submit the court ordered name change, the court ordered gender change, the medical statement and the applicable fee to Mississippi Vital Records, 222 Marketridge Dr. Ridgeland, MS 39157. 

Friday, May 25, 2018

Discovery and Experts


What happens if you do not do discovery of expert witnesses in a case?   Mississippi Rule of Civil Procedure 26 is to be strictly interpreted and should be rigidly enforced. Hudson v. Parvin, 582 So.2d 403, 412‑13 (Miss.1991).   M.R.C.P.  26(b)(4)(A)(i) states, “A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial.”  When requested, parties must disclose the opinions of expert witnesses and the underlying grounds of opinions.” Peterson v. Ladner,785 So.2d 290 (Miss. Ct.App. 2000).  (Emphasis added).  The 60 day notice mandated in Uniform Chancery Rule 1.10  does not apply unless opposing counsel makes a discovery request to designate experts.   Jackson v. Perry, 764 So.2d 373, 384 (Miss. 2000).   As such, you can get blindsided by experts and other people by failing to conduct written discovery.     

Thursday, May 24, 2018

Mississippi Tort Claims Act

The Mississippi Supreme Court decided  Wilcher v. Lincoln County Board of Supervisors today located here.  This arguably makes it easier to sue the State in some contexts now.

Wednesday, May 16, 2018

Foreign Object

On April 26, 2018 the Mississippi Supreme Court decided Doretha Thompson v. Baptist Memorial Hospital-DeSoto, Inc. and James E. Fortune, M.D. This case has one of the best summaries I know of dealing with the law where a foreign object is left in someone.   The case involved a defense verdict where a sponge was left in a patient.    On appeal, the Court reverses because of the trial curt’s refusal of two instructions that would have told the jury that if they found that a sponge was left in Thompson’s abdomen, then a presumption of negligence is raised that must be rebutted.

Friday, May 4, 2018

Brady Disqualified

If a party has a domestic violence restraining order entered against them, they are barred from possessing a firearm.  This is sometimes called Brady disqualified.  Brady disqualified means that a person is disqualified under criteria set for in the Brady Bill from purchasing a firearm. 18 U.S.C. SS 9 (d) (8), requires the following three conditions to be met in an order to disqualify a handgun purchase.
1. the order was issued after a hearing, of which the subject received actual notice, and at which such person had the opportunity to participate; and
2. includes a finding that the subject represents a credible threat to the physical safety of an intimate partner or child; or
3. explicitly prohibits the use, attempted use, or threatened use of physical force against an intimate partner or child that would reasonably be expected to cause bodily injury.

Sunday, April 29, 2018

Work Life Tables

In Mississippi, Courts "can take judicial notice of the information found in life expectancy tables."  Churchill v. Pearl River Basin Dev. Dist., 757 So. 2d 940 (¶ 19) (Miss. 1999).  The Mississippi Department of Health provides one at this link.  This may be useful in a long term alimony case. 

Tuesday, April 24, 2018

Sued in the Wrong Name

What happens when a company is sued in the wrong name?  This was one of the issues last week in United Airlines, Inc., Improperly Named as United Airlines Corporation v. Martin H. McCubbins located hereThe paragraphs below from the opinion show how the issue is to be handled.  As noted in the opinion, ignoring is not an option/.

"Our Supreme Court has addressed the concept of a “misnomer” in several prior
opinions.  In Campbell & Campbell v. Pickens Bank, 134 Miss. 559, 565, 99 So. 378, 378-79
(1924), a writ of garnishment and summons directed to the “Bank of Pickens” were served on the cashier for the “Pickens Bank.”  The “Bank of Pickens” had been defunct for several
years.  Id. at 565, 99 So. at 380.  The “Pickens Bank” was the intended garnishee, but it was
misnamed in the writ and summons.  Id.  After a default judgment was entered against the
Pickens Bank, the bank moved to set aside the judgment, arguing that it was not properly
served with process.  Id. at 565-66, 99 So. at 379.  The cashier denied that he was served, but
after hearing testimony, the chancellor found as fact that the cashier was served.  Id. at 567,
99 So. at 379.  Even so, the Pickens Bank argued that service was ineffective because it was
not the entity named in the writ and summons.  Id. at 566, 99 So. at 379.  On appeal, our
Supreme Court disagreed.  Id. at 568, 99 So. at 380.  The Court held that service was proper
and that one summoned by a wrong name has a duty “to appear and object to the misnomer”;
and if he fails to do so, the judgment is not void merely on account of the misnomer.  Id. 
¶16. The Supreme Court later distinguished Pickens Bank in Delta Cotton Oil Co. v.
Planters’ Oil Mill
, 142 Miss. 591, 107 So. 764 (1926).  In Delta Cotton Oil, the summons
was served on a man who served as an agent for two entities with similar names, and the
summons failed to correctly and precisely name either entity.  Id. at 596-97, 107 So. at 764.
Moreover, on the particular underlying facts of that case, the judgment could have been
“applied to one as readily as to the other.”  Id. at 601, 107 So. at 767.  The Supreme Court
held that in that situation there was “such uncertainty as [to] make the rule of misnomer
inapplicable.”  Id.  The Court reaffirmed Pickens Bank’s holding and “the doctrine of
misnomer” as “a wholesome doctrine.”  Id.  But the Court held that the doctrine “must be limited to the cases where the identity of the persons sued and against whom judgment is rendered is not doubtful.”  Id.  Accordingly, in Delta Cotton, the Court held that, on the facts
of that case, the judgment was void.  Id. 

¶17. In a more recent case, our Supreme Court discussed another “set of circumstances”
in which the “doctrine of misnomer” does not apply.  D.P. Holmes Trucking LLC v. Butler,
94 So. 3d 248, 252 (¶¶10-11) (Miss. 2012).  In D.P. Holmes Trucking, the plaintiff “did not
simply misname the defendant” but rather “sued a [party] he believed to be responsible”
when, in fact, “he should have sued a different party.”  Id. at (¶11).  The Court held the
plaintiff was trying to substitute one real party for another real party rather than merely
correct a misnomer.  Id. 

¶18. A recent decision of the Georgia Court of Appeals is also helpful and persuasive.  In
Mathis v. BellSouth Telecommunications Inc., 690 S.E. 2d 210 (Ga. Ct. App. 2010), the
plaintiff served Corporation Service Co. (CSC) with a summons directed to “AT & T
Telecommunications.”  Id. at 212.  The intended subject of the complaint, BellSouth d/b/a
AT & T of Georgia (BellSouth), appeared and argued that service of process was improper
and ineffective because “there was no such entity as AT & T Telecommunications.”  Id.
However, the Georgia Court of Appeals held that service of process was sufficient and
effective because the plaintiff properly served BellSouth’s registered agent (CSC), and as
BellSouth’s registered agent, “CSC was obligated to recognize the trade names of its clients
and also to recognize some misstatements of its clients’ names and to accept service, on
behalf of its clients, of lawsuits filed under such misnomers.”  Id. at 214 (emphasis added;
quotation marks omitted).

¶19. Based on our Supreme Court’s decision in Pickens Bank and the persuasive reasoning
of the Georgia Court of Appeals in Mathis, we hold that service of process in this case was
sufficient to give the circuit court jurisdiction over United.  We recognize that there are some
distinctions between this case and Pickens Bank and Mathis.  However, those differences do
not change the outcome.  This case differs from Pickens Bank in that process was served on
the defendant’s registered agent, rather than on an employee of the defendant at its principal
place of business, as in Pickens Bank.  However, the registered agent’s basic purpose,
especially in the case of an out-of-state corporation doing business in this State, is to stand
in the shoes of the corporation for purposes of accepting service of process.  See Miss. Code
Ann. § 79-35-13(a) (Rev. 2013).  For this reason, CT has an obligation “to recognize some
misstatements of its clients’ names and to accept service, on behalf of its clients, of lawsuits
filed under such misnomers.”  Mathis, 690 S.E.2d at 214. "

Sunday, April 22, 2018

Text Messages

On Tuesday, the Mississippi Court of Appeals decided Saunders v. State located here.  One of the issues in the case was the admissibility of a text message.  The Court found that the text was properly admitted when it was found on the Defendant's phone and he presented no evidence to rebut that it was his text message.  The case appears to say that once a prima facie case is made for admissibility on a text, the opposing party has to rebut that presumption.  The case further found that the credibility of that goes to the fact finder then.   

Friday, April 13, 2018

Same-Sex Parents

Last week, the Mississippi Supreme Court decided Day vs. Day located here.  The issue in the case was over a same-sex couple who had a child by a sperm donor.  The trial court had determined that the non-birth parent was not a legal parent and that the sperm donor's rights had to be terminated.  The Mississippi Supreme Court reversed that case and found that the sperm donor had no rights and sent the case back for an Albright analysis.

Friday, April 6, 2018

Text Messages


In Stevens v. Belhaven University, the Fifth Circuit described a set of findings that justified a $500 sanctions award on a client and $100 on a lawyer (adding numbers and headings for ease of reference):


(1. Preservation letter) The court explained that counsel had received a letter demanding him to “preserve and sequester” the phone.



(2. Failure to preserve) The defendant “was therefore sur-prised to learn . . . that the phone had broken and was no longer in [plaintiff’s] possession [but] had been taken . . . to a local AT&T store [where] she pur-chased a new phone.”



(3. Lack of explanation) “In her deposition, [plaintiff] could not explain how some of the text messages were deleted from her phone before they were shared with the EEOC.”



(4. Actual relevance of material at issue.) “When [she] did search her iCloud, moreover―. . . she identified new, material, and important evidence.



(5. In addition to (3), inconsistent explanation.)  That . . . directly contradicts [her] ear-lier sworn statement that she had produced everything to [the defendant].”

No. 17-60652 (April 2, 2018, unpublished).

Tuesday, April 3, 2018

Business Valuation

I have been working on two complicated business valuation divorce cases for the past few week.  Mississippi does not allow goodwill to be a part of the valuation in the context of divorce.  According to the Mississippi Supreme Court, the value must be determined on a “fair market value” basis and the only approved valuation methodology is the Net Asset Approach, which calculates the value of the assets and liabilities with no entity or personal goodwill, but with appropriate discounts related to marketability and control.

Tuesday, March 27, 2018

Social Media Restrictions and Child Custody

Today, the Mississippi Court of Appeals decided Harden vs. Scarborough located here.  The trial court had restricted both parents from posting pictures to social media of their child and also enjoined them to going to their child's school.  The Court of Appeals reversed and rendered the judgment.  They noted:  ... “[i]n the absence of conduct harmful to children, . . . a court cannot dictate what would normally be parental decisions about a child’s health, education, and welfare.”  Deborah H. Bell, Mississippi Family Law § 12.05 at 368 (2d ed. 2011); cf. Cox v. Moulds, 490 So. 2d 866, 868 (Miss. 1986) (“something approaching actual danger or other substantial detriment to the children—as distinguished from personal inconvenience or possible offense to middle class sensibilities—is required before a chancellor may restrict visitation”); Mord v. Peters, 571 So. 2d 981, 983-86 (Miss. 1990) (similar).  As to social media, Scarborough and Harden will just have to get along.  As to visits to Rhett’s daycare or school, they should follow the policy that the daycare or school sets for all parents.  We reverse and render as to these provisions of the chancery court’s final judgment."

Wednesday, March 21, 2018

Personal Jurisdiction and Divorce


Below is an excerpt from a motion regarding divorce and personal jurisdiction that I did on a case recently.  
Divorce is regarded as a form of in rem action, a court may grant divorce even though the defendant does not have minimum contacts required for personal jurisdiction.  In 1942, the United States Supreme Court held that one spouse’s domicle in the forum state, combined with proper process is sufficient to allow a grant of divorce, even in the absence of personal jurisdiction over the defendant.  Williams vs. North Carolina, 317 U.S. 287, 299 (1942). 

As such, a court without personal jurisdiction over a defendant can still grant a divorce.  The only issue would be property division.  E.g. Pierce vs. Pierce, 42 so.3d 658, 659 (Miss. Ct. App. 2010)(Washington court granted divorce to military husband against Mississippi wife, but lack jurisdiction to divide property).  For this, personal jurisdiction is required. 

The Due Process Clause of the Fourteenth Amendment provides: "No State shall . . . deprive any person of life, liberty, or property without due process of law. . . ." U.S. Const. amend. XIV. Regarding the Due Process Clause and personal jurisdiction, the United States Supreme Court has held:

[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.

Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The general principle regarding the exercise of jurisdiction over a nonresident is that he "may not be subjected to a litigation in a foreign jurisdiction unless he has `certain minimum contacts with it such that the maintenance of the suit does not offend the traditional notions of fair play and substantial justice'. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95, 102 (1945)." Administrators of the Tulane Ed. Fund v. Cooley, 462 So.2d 696, 702 (Miss. 1984).

These contacts must amount to something more than occasional "fortuitous" instances where the defendant had in the past come into some casual, isolated contact with an in-state resident. Cooley, 462 So.2d at 703 (citing Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 566, 62 L.Ed.2d 490, 500 (1980)).  "Purposeful activity" by a non-resident in the forum state may subject him to in personam jurisdiction there. If a nonresident corporate or individual defendant has "purposefully availed itself of the privilege of conducting activities within the forum state", then it is considered not "unfair" that the nonresident's important rights be adjudged in that forum. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283, 1298 (1958). See Wilkinson v. Mercantile National Bank, 529 So.2d 616, 618-20 (Miss. 1988); Anderson v. Sonat Exploration Co., 523 So.2d 1024, 1026-27 (Miss. 1988).

There is no constitutional imperative that the action arise out of the non-resident defendant's contacts/activities in this state. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404, 411 (1984); Perkins v. Benquet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952); Administrators of the Tulane Educational Fund v. Cooley, 462 So.2d 696, 703 (Miss. 1984). All that is required is that the non-resident defendant have continuous and systematic general contacts with this state. See Restatement (Second) of Conflict of Laws § 35(3) (1971).  As the Fifth Circuit held in Stripling v. Jordan Production Co., LLC, a defendant's single act is sufficient to confer personal jurisdiction "so long as the defendant `reasonably anticipate[s] being haled into court' in the forum state.  

Friday, March 9, 2018

Moving and Child Support

Moving to another state can have effects on child support.  Normally as long as one party stays in the state that issued the child support, the court there continues to have jurisdiction over it.  However, what happens when everyone moves to another state?


(1)  "In Mississippi, petitions to modify foreign child support orders are

governed by Mississippi's version of the Uniform Interstate Family Support Act," codified in Mississippi Code Annotated sections 93-25-1 through XX-XX-XXX (Rev. 2004). Nelson v. Halley, 827 So.2d 42, 44(¶ 8) (Miss.Ct.App.2002).  The UIFSA governs the question of subject matter jurisdiction, it may be raised at any point during the proceedings. See Esco v. Scott, 735 So.2d 1002, 1006(¶ 14) (Miss.1999).

The Mississippi Supreme Court, in Nelson, set forth the basic

framework of the UIFSA:

The first step under the proceedings authorized by this state's version of UIFSA is to file the foreign judgment in an appropriate chancery court. Once the judgment is registered, the subject matter of this state's jurisdiction on that foreign judgment depends on the residences of the individuals affected. The subject matter is alterable by consent. Regardless of consent, the judgment can be enforced much more readily than it may be modified.

Id. at 45(¶ 10).

           Child support provisions are governed by Mississippi Code Annotated section 93-25-101 of the UIFSA, which states the following:

(1) If Section 93-25-107] does not apply, except as otherwise provided in Section 93-25-108, upon petition, a tribunal of this state may modify a child support order issued in another state which is registered in this state, if, after notice and hearing, it finds that:

(a) The following requirements are met:

(i) Neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing state;

(ii) A petitioner who is a nonresident of this state seeks modification; and

(iii) The respondent is subject to the personal jurisdiction of the tribunal of this state; or

(b) This state is the state of residence of the child, or a party who is an individual is subject to the personal jurisdiction of the tribunal of this state, and all of the parties who are individuals have filed consents in a record in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction.

(2) Modification of a registered child support order is subject to the same requirements, procedures and defenses that apply to the modification of an order issued by a tribunal of this state and the order may be enforced and satisfied in the same manner.



(3) Except as otherwise provided in Section 93-25-108, a tribunal of this state may not modify any aspect of a child support order that may not be modified under the law of the issuing state, including the duration of the order of support. If two (2) or more tribunals have issued child support orders for the same obligor and the same child, the order that controls and must be so recognized under the provisions of Section 93-25-21 establishes the aspects of the support order which are nonmodifiable.



(4) In a proceeding to modify a child support order, the law of the state that is determined to have issued the initial controlling order governs the duration of the obligation of support. The obligor's fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of this state.



(5) On issuance of an order by a tribunal of this state modifying a child support order issued in another state, the tribunal of this state becomes the tribunal of continuing, exclusive jurisdiction.

Miss.Code Ann. § 93-25-101 (emphasis added).

            To put the issue simply, if the parties to a child support order move to different states, the payor must seek modification in the payee’s state of residence.   See Patterson vs. Patterson, 20 So.3d 65, 69-71 (Miss. Ct. App. 2009)(California no longer had exclusive jurisdiction to modify after a mother and child moved to Mississippi and the father to Maryland.  Maryland, not Mississippi was the state with jurisdiction to hear the mother’s petition to increase child support.)  Ironically, if the payee is seeking modification, they must go to the payor's state.  This is a very complicated area. 

Wednesday, March 7, 2018

Tennessee Issue of Interest

Tennessee Attorney General Opinion 15-14 states that an ordained minister of the Universal Life Church is not considered a valid marriage under Tennessee law.  The ministers are essentially ordained online with no requirements.  The opinion is located here. The opinion points to Tennessee Code Annotated  § 36-3-301 which provides in the pertinent part, as follows: "In order to solemnize the rite of matrimony, any such minister, preacher, pastor, priest, rabbi or other spiritual leader must be ordained or otherwise designated in conformity with the customs of a church, temple or other religious group or organization; and such customs must provide for such ordination or designation by a considered, deliberate, and responsible act. Tenn. Code Ann. § 36-3-301(a)(2) (emphasis added).  I think that last part of the statute may be an area of litigation in Tennessee and Mississippi.  Some churches truly have ministers but there is no formal ordination process. 

Wednesday, February 28, 2018

Sword and Shield of Attorney Client Privilege

A party cannot normally assert attorney advice and a defense and then turn around and claim privilege whenever the matter is discussed in more detail.  A good summary of the law in Mississippi is located in a recent 5th Circuit opinion located here.

Monday, February 19, 2018

Case of Interest

On February 8, 2018, the Mississippi Supreme Court decided McKinney vs. Hamp located here.  There were a number of issues of first impression of interest in the opinion listed below.

(1) Supersedes bond is not available on prospective child support.  It is still available for money bond on past due child support.   From my reading on this, I think there is a good argument alimony is likewise not subject to bond.  I have assisted attorneys in the past in asking for supersedes bond on alimony and they have been denied the same in some unpublished opinions. 

(2) "This Court has looked to our statutory law and has held that “‘[a]n upward retroactive
modification may be ordered back to the date of the event justifying the upward
modification.’” A.M.L. v. J.W.L., 98 So. 3d 1001, 1018 (Miss. 2012) (citing Miss. Code
Ann. § 43-19-34(4) (Rev. 2009)) (emphasis in original).  Section 43-19-34(4) still provides
the same today.  See Miss. Code Ann. § 43-19-34(4) (Rev. 2015).  But we have also
suggested that “the better rule is to allow modification amounting to an increase in support
as of the date of the petition to modify or thereafter, within the sound discretion of the trial
court.”  Lawrence v. Lawrence, 574 So. 2d 1376, 1384 (Miss. 1991).  This is a discretionary
call."
This is the first case I am aware of to look at 43-19-34(4).  However, the opinion gives no guidance on what would constitute an abuse of discretion in this context of the statute. 

(3)  "...the chancellor failed to consider the factors laid out in Louk when considering the tax
issue.  See Louk v. Louk, 761 So. 2d 878, 883-84 (Miss. 2000).  But in truth, this Court has
not established a specific test for allocating child tax exemptions, though we have discussed
some suggested considerations.".  Id.

Apparently, the Louk case is not a test but factors to consider.  My reading is that the court has to consider the factors in some way on the record before determining who is to get the deduction. 

(4) Advice of counsel may prevent a finding of willful contempt.  However, the Court hinted that this may not always be a defense. I am not sure how to interpret the hinting language.  My guess would be that there has to be good faith reliance on the advice. 

Friday, February 9, 2018

Footnote of Interest

Last Tuesday, the Mississippi Court of Appeals decided Dixon v. Dixon located here.  There is an interesting footnote in the opinion of interest.  The Court found in a footnote that deposition testimony may be taken as substantive proof and found more credible than trial testimony.  The footnote 9 stated:

9 It is true, as the partial dissent points out, that Tracy contradicted himself at trial. However, the chancellor, as the finder of fact, was entitled to find Tracy’s deposition testimony more credible than his trial testimony.  See Henson v. City of Dundee, 682 F.2d 897, 908 n.16 (11th Cir. 1982) (explaining that if a party’s trial testimony contradicts his prior deposition testimony, and the deposition testimony is “read . . . to” and “acknowledged” by the party at trial, the fact-finder may then consider and rely on the deposition testimony “as substantive evidence”).

Thursday, February 8, 2018

Damages for Vulnerable Adults

Came across the following when working on a civil suit to recover money for a vulnerable adult:

Mississippi Code 11-7-165 (1)

(1) In a civil action where it is proven that a person took property having a value of Two Hundred Fifty Dollars ($ 250.00) or more belonging to a vulnerable adult by conversion, embezzlement, extortion, theft or fraud without the owner's consent, or obtained the owner's consent by intimidation, deception, undue influence or by misusing a position of trust or a confidential relationship with the owner, then whether the action is to recover the property or damages in lieu thereof, or both, damages shall be recoverable up to three (3) times the amount of the monetary damages or value of the property embezzled, converted or otherwise stolen, in addition to any other damages.

The statute appears to authorize the award of three (3) times the damages which can make an easy multiplier on the case.  

Friday, February 2, 2018

Divesting of Title

Learned this little tidbit today on title in chancery for title insurance purposes.  If title is divested by Court order, the title insurance companies will not insure it if the order does not have the language that title is vested in one party and divested from another.  The order also has to specifically state that the title is divested pursuant to Rule 70 of the Mississippi Rules of Civil Procedure. 

Normally a quit claim deed would prevent any of these issues.  In the rare case a court order is all there is, the above will have to be used.

Thursday, February 1, 2018

Social Security and Alimony

This afternoon, the Mississippi Supreme Court decided Harris vs. Harris located here.   The case overruled an earlier case that stated social security received on account of another's work record entitled that person to credit.  In Harris, the Court overruled that case and stated a change in circumstances is needed in order to get the credit.  

Monday, January 29, 2018

Causation and Alienation of Affection

On January 23, 2018, the Mississippi Court of Appeals decided David Michael Lyon Jr. v. Billy McGee.  This is the first case I am aware of reported where summary judgment was granted on an alienation of affection case due to lack of causation.  The Court ruled that the plaintiff could not show that the extramarital relationship of the Defendant caused the breakup of the marriage as the parties were already separated.  I believe this case could signal these cases being scrutinized more heavily in the future. 

Tuesday, January 23, 2018

Change the Locks

One of the common question in divorce is whether a party change the locks on the marital home.  The answer is normally yes assuming there is not Court/Temporary Order preventing you from accessing the home.   You can change the locks if it is your house, condo, apartment, or camping trailer.  However, if there is no court order, the other party can let themselves in and nothing prevents the person from accessing your home.  However, a domestic disturbing the peace charge sometimes results from this or accusations of domestic violence.  Also, some leases however may not allow for the changing of locks.  This is a fact sensitive area and an attorney should be consulted on the issue.  

Tuesday, January 16, 2018

Adoption with No Termination of Parental Rights

Last Thursday, the Mississippi Supreme Court decided In the Matter of the Adoption of the Child Described in the Petition: D.D.H., Patrick Latrell Gray and Felicia Hannah Dutch.  Patrick Latrell Grayand Felecia Hannah Dotch petitioned the Attala County Chancery  Court to allow Gray to adopt D.D.H. without terminating Dotch’s parental rights. Dortch gave birth to a daughter, D.D.H.,  in 2003.  She had been in a relationship with Gray and they assumed he was the father.  More than ten years later, he discovered he was not her father but he had acted as her parent throughout her life  – while he and Dortch were in a romantic relation and even after.  The real father is unknown.  Once they realized Gray was not the father, Gray and Dortch petitioned the court to allow Gray to adopt her. The chancellor found that he was constrained by the statutes in doing so and denied the adoption.  The Mississippi Supreme Court reversed finding that such an adoption is not prohibited by Mississippi law. Since Gray is married, the spouse needed to be joined.  The Court found  the “otherwise specifically stated” language of Section 93-17-13(2) allows Gray to adopt the child and allows Dotch to keep her parental rights. The holding was narrowly tailored to the following facts: (1) Gray has acted in loco parentis; (2) he is seeking to adopt and would be adopting as the father; (3) he is seeking to raise the child in concert with Dotch, the natural mother; (4) his spouse will be joined to the proceeding, and (5) there are no third parties to the adoption seeking to keep parental rights.

Tuesday, January 9, 2018

Proving a Negative

It is a general rule of evidence, noticed by the elementary writers upon that subject (1 Greenl. Ev. §§ 79) that `where the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true unless disproved by that party.' When a negative is averred in pleading, or plaintiff's case depends upon the establishment of a negative, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative; but when the opposite party must, from the nature of the case, himself be in possession of full and plenary proof to disprove the negative averment, and the other party is not in possession of such proof, then it is manifestly just and reasonable that the party which is in possession of the proof should be required to adduce it; or, upon his failure to do so, we must presume it does not exist, which of itself establishes a negative. 285*285 United States v. Denver & Rio Grande Railroad Company, 191 U.S. 84, 24 S.Ct. 33, 48 L.Ed. 106 (1903).

Wednesday, January 3, 2018

Alibi Witness

Yesterday, the Mississippi Court of Appeals decided Smith v. State located here.  The issue in the case is when does the defendant have to disclose an alibi witness?  The Court stated:

“The rule clearly states that the requirement to disclose an alibi witness is triggered
by the prosecution.” Hall v. State, 925 So. 2d 856, 857 (¶4) (Miss. Ct. App. 2005). “Only
after the prosecuting attorney makes a written demand is the defendant then required to provide written notice of his intent to offer a defense of alibi.” Id. (quoting Ford v. State, 862 So. 2d 554, 557 (¶11) (Miss. Ct. App. 2003)). On two prior occasions, we have reversed and remanded when a defendant’s alibi witness was excluded, where the State did not make a written demand under Rule 9.05. See Hall, 925 So. 2d at 857 (¶¶3-5); Ford, 862 So. 2d at 557 (¶¶10-12). The trial court likewise erred here, in denying Smith the opportunity to present his alibi witness. We reverse and remand for a new trial."

The risk of not disclosing a witness creates the issue above.  It is remanded for a new trial but the person is normally in prison while the appeal is pending. 

Tuesday, January 2, 2018

Plaintiff Summary Judgment

Somehow in the legal world, attorneys got the idea that summary judgment was only for defense attorneys.  In recent years, I have been using it as a plaintiff tool on a regular basis.  This is based on experience that the more issues are narrowed down, the less likely it is that a fact-finder can create some rationale denying liability that is not based on the law.  I have used this on to establish liability in a number of cases.  This makes the trial a damages only issue and makes defendant's wanting to offer sympathy testimony largely irrelevant.