Mississippi Discovery Rules Change

Rule 26 of the Mississippi Rules of Civil Procedure has been amended.  A copy to the Rule changes is here.

Tennessee Warrantless Search of Individual on Probation

The Tennessee Supreme Court has reversed a Court of Criminal Appeals decision suppressing evidence seized pursuant to a probation search.    

The defendant, Angela Hamm, was sentenced to six years for manufacturing a controlled substance.  The trial judge suspended her sentence and placed her on supervised probation.  She resided in Obion County with her husband, defendant David Hamm, who was not on any form of supervised release.  Acting upon information received from a confidential informant, law enforcement officers conducted a warrantless search of the residence based on Angela Hamm’s probation status.  In the defendants’ shared bedroom, officers found pills, two glass pipes, methamphetamine, and scales.  The defendants were each arrested and later jointly indicted for six counts of possession of controlled substances with intent to sell or deliver and one count of possession of drug paraphernalia. 

Prior to trial, defendants filed motions to suppress the evidence obtained as a result of the warrantless search.  The trial court suppressed the evidence against both defendants and dismissed the indictments.   The State appealed to the Court of Criminal Appeals, which affirmed the rulings of the trial court.

The Tennessee Supreme Court granted the State’s application for permission to appeal in this case to consider whether reasonable suspicion is required for a probation search pursuant to search conditions contained in the probation agreement. 

The Court held that probation search conditions that permit a search, without warrant, of a probationer’s person, vehicle, property, or place of residence by any Probation/Parole Officer or law enforcement officer, at any time, do not require law enforcement to have reasonable suspicion. Considering the totality of the circumstances, the search of the defendants’ bedroom was constitutionally reasonable.  In addition, the search of the Hamms’ shared bedroom, including items that belonged to David Hamm, was permissible pursuant to the doctrine of common authority. 

Justice Cornelia A. Clark filed a separate dissenting opinion, stating that the majority erroneously equated the privacy interests of probationers and parolees and that the state and federal constitutional safeguards against unreasonable searches and seizures require law enforcement officers to establish reasonable suspicion for a warrantless search of a probationer.   Justice Clark would require the State to establish that the search was based on reasonable suspicion of the probationer’s criminal activity. 

Justice Sharon G. Lee also filed a separate dissenting opinion. In her view, the majority opinion upholding the warrantless, suspicionless search of the Hamm residence deprived the defendants of their rights to be free from unreasonable searches under the state and federal constitutions.  According to Justice Lee, law enforcement should have at least a reasonable suspicion of criminal activity before conducting a warrantless search of a probationer’s home. 

To read the majority opinion in State of Tennessee v. Angela Hamm, authored by Justice Roger A. Page, and Justice Cornelia A. Clark’s and Justice Sharon G. Lee’s separate dissenting opinions, go to the opinions section of TNCourts.gov.

Rules up for Comment

The Mississippi Supreme Court has several rule changes up for comment.  A link to them is here.  The most interesting is to authorize an attorney to issue subpoenas with their signature in State Court as is the case in Federal Court.  This would be the most helpful.

Minors and Negligence

Mississippi applies the common law “rule of sevens.”  A child under the age of seven is irrefutably presumed to be incapable of negligence.  Children between the ages of 7 and 14 are presumed to be incapable of negligence, but the presumption may be rebutted by showing that the child had elevated capacity.  Children above the age of 14 are presumed to be capable of negligence.  Steele v. Holiday Inn, 626 So. 2d 593 (Miss. 1993).

Estate and Gift Tax

The estate and gift tax exemption for 2019 is $11.4 million per individual, up from $11.18 million in 2018. That means an individual can leave $11.4 million to heirs and pay no federal estate or gift tax, while a married couple will be able to shield $22.8 million. The annual gift exclusion amount remains the same at $15,000.

Tip of the Day

I am working on a complex appeal.  I found that the type used by most court reporters can be easily converted in OCR format which makes it easy to search and find  whatever key items you need for an appeal.

GAL Training Videos

Updated GAL Training Videos now available ONLINE!
Click here to view the videos
The Child Advocacy Committee of The Mississippi Bar’s Young Lawyers Division, The University of Mississippi Judicial College, The University of Mississippi School of Law and Mississippi College School of Law have produced a series of on-demand videos for purposes of certifying guardians ad litem (GALs) to increase the number of available certified GALs and provide an affordable means for certification for solo practitioners and attorneys. The videos have been approved for six (6) hours of CLE credit, including one hour of ethics. Attorneys who view the GAL videos may utilize the training for both certification and CLE purposes. The attorney will then be placed on a list of lawyers willing to serve pro bono on one case. For those attorneys who watched the previous version of the videos, you can receive certification and CLE credit for viewing the newly updated videos. Click here for more information.
 

GAL Fees

On October 3, 2019 the Mississippi Supreme Court decided Garner vs. Fox located here.  The case clarified how the Court is to apportion the payment of guardian ad litem fees when abuse and/or neglect allegations are raised.  The case also found that a step-grandparent is not entitled to visitation under the Mississippi grandparent visitation statute.

Third Party Custody Case

On August 29, 2019 the Mississippi Supreme Court decided McDonald vs. Ballard located here.    This case redefined what a third party has to do to be on the same level as a natural parent for custody analysis.  From the opinion it appears that if a natural parent is not in the picture and someone has been acting in loco parentis, they may be on the same level as a parent.

Effect of Divorce from Another State

Sometimes, due to the difficulty of getting a divorce in Mississippi if the parties do not agree to one, a party will go to another state to get a divorce.  The issue arises though that while the party can get a divorce, that other state may not be able to divide the property up necessitating a second action in Mississippi.  The Mississippi Court of Appeals decided Crew vs. Tillotson on Tuesday located here.  Both the majority opinion and the dissent need to be read carefully to understand all the pitfalls on these cases.   

Tennessee Statute of Limitations

Tennessee’s one year statute of limitations for personal injury claims often forces plaintiffs to file suit before they even know the full extent of their injuries.  On the other hand, there are probably many meritorious cases that cannot be filed because the statute of limitations expires before the injury victims even think about filing a lawsuit.  Occasionally, plaintiffs cannot access critical evidence due a pending criminal investigation.  The Tennessee legislature has finally granted some relief in the latter situation by extending the statute of limitations from one to two years if:

“(A) Criminal charges are brought against any person alleged to have caused or contributed to the injury; (B) The conduct, transaction, or occurrence that gives rise to the cause of action for civil damages is the subject of a criminal prosecution commenced within one (1) year by: (i) A law enforcement officer; (ii) A district attorney general; or (iii) A grand jury; and (C) The cause of action is brought by the person injured by the criminal conduct against the party prosecuted for such conduct.”  T.C.A. § 28-3-104(a)(2).

So if criminal charges are brought against a defendant within one year after the wreck or other event causing injury, the one year SOL can be extended for another year, if all of the foregoing conditions are met.  This amendment to T.C.A. § 28-3-104 was effective July 1, 2015.  Unfortunately, not many lawyers will be willing to take the risk of waiting more than a year to file suit in a personal injury case where criminal charges are pending, so this provision will not be used often.  However, situations can be envisioned where a meritorious claim might be saved by the operation of this new law.

Book of Interest

I am reading a book of interest for appeal lawyers called:  The Family Law Guide to Appellate Practice by Matthew P. Barach.  It is really good so far and discusses both the legal and practical side of appeals for lawyers and the clients in family law matter.  A link to it is here.

Tax Sale Confirmation Statute Change

Mississippi Code 27-45-27 had several significant changes effective July 1, 2019. This was brought to my attention at the bar convention while lecturing on the topic.  A purchaser or owner of the tax deed who bought a property at tax sale can no longer challenge the validity of the sale. A copy of the bill is here. 

Un-Divorce

Mississippi Code Annotated § 93-5-31 provides that:   

“The judgment of divorce from the bonds of matrimony may be revoked at any time by the court which granted it, under such regulations and restrictions it may deem proper to impose, upon the joint application of the parties, and upon the production of satisfactory evidence of their reconciliation.”

This is essentially the un-divorce statute as I like to call it which allows a couple to revoke their divorce if they reconcile.  This statute is helpful for a number of reasons with clients who have certain religious beliefs regarding divorce and remarriage.  The interesting part of the statute to me is that no one seems to know what satisfactory proof as referenced in the statute is.  This could be anything from just the sworn pleadings of the parties to the necessity of full blown proof and testimony. 

 

Bankrutpcy and Personal Injury

On March 27, 2019 the Bankruptcy Court for the Southern District of Alabama denied a fee request by Debtor’s personal injury (PI) attorney.

Prior to filing bankruptcy Debtor was involved in a car accident. She hired a PI attorney to represent her. When her bankruptcy case was filed, she listed the car accident on her schedules. Subsequently the PI case settled, and the Debtor signed a settlement agreement that indicated she was not in a bankruptcy. The Debtor filed a motion to approve the settlement in the Bankruptcy Court. The trustee demanded that the attorney’s fee be turned over to the bankruptcy estate.

The PI attorney stated he relied upon the Debtor’s statement in the settlement that she was not in a pending bankruptcy and therefore didn’t seek approval of the settlement and proceeds himself.

In In re Fisher, No. 16-1911, 2019 Bankr. LEXIS 1325 (Bankr. S.D. Ala. Mar. 27, 2019), the bankruptcy court found the PI attorney’s reliance on the Debtor’s statement “wholly inadequate.”

The bankruptcy court ruled that “[e]very trial attorney has or should have a PACER account with which to check federal court pleadings, including bankruptcy court pleadings. It takes only a few moments to check a client’s name on PACER before distributing settlement proceeds to determine whether that client is in bankruptcy. To rely on a client’s representation that he or she is not in bankruptcy is not enough. The client may not notice or understand the “not in bankruptcy” language; the client may be confused as to whether he or she is in bankruptcy; and (not surprisingly) sometimes clients will lie, particularly if they think that answering correctly may cause them to get less money. In this court’s view, if a lawyer fails to check PACER to confirm that a client is not in bankruptcy immediately before distributing settlement proceeds, the lawyer runs the risk of being held liable for the settlement funds that would have otherwise gone into the bankruptcy estate. Of course, a prudent lawyer should also check PACER upon initial retention as well so that his or her employment can be approved by the bankruptcy court on a timely basis.” Fisher at 6-7.

The bankruptcy court set out the general rules for employing counsel in matters outside the bankruptcy court. Counsel must seek approval of his employment as an attorney for the debtor as required by 11 U.S.C. § 327 or to have their fees approved as required by 11 U.S.C. § 330. The attorney must also seek bankruptcy court approval to settle the claim as required under 11 U.S.C. § 363(b) and Bankruptcy Rule 9019.

Generally bankruptcy courts require that court approval of the retention of a professional must be made before the professional has been employed. See In re Jarvis, 53 F.3d 416 (1st Cir. 1995). There is a circuit split on whether employment should be permitted on a nunc pro tunc basis. See Matter of Concrete Products, Inc., 208 B.R. 1000, 1008 (Bankr. S.D. Ga. 1996) (citing 3 Collier on Bankruptcy ¶ 327.02, n. 5 (16th 2018)). Some courts have recognized a “per se” rule against retroactive approval of a professional’s employment, see Matter of Futuronics Corp., 655 F.2d 463 (2d Cir. 1981), and some courts have concluded that such approval is permissible. See Matter of Concrete Products, 208 B.R. at 1008 (collecting cases). The undersigned adopts the ruling of the court in Matter of Concrete Products, Inc., and follows the more lenient line of cases holding that a movant seeking retroactive approval of a professional’s employment must demonstrate that the professional would have been qualified for employment at the onset, and throughout the period of time for which the services are to be compensated; and, that the movant’s failure to obtain prior approval at an earlier time is excusable. Id. at 1008.

Fisher at 3-4.

The bankruptcy court concluded that the PI attorney had not shown its neglect was sufficiently excusable to justify the untimely application for employment. The bankruptcy court approved the settlement but directed the PI attorney’s fees be paid to the chapter 13 trustee to increase the disbursements to unsecured creditors.

Balance Billing

Per Mississippi Code 83-9-5, if a medical provider accepts payment from the insurance company, the medical provider cannot bill the insured for the remaining balance. 

 “If the insured provides the insurer with written direction that all or a portion of any indemnities or benefits provided by the policy be paid to a licensed health care provider rendering hospital, nursing, medical or surgical services, then the insurer shall pay directly the licensed health care provider rendering such services. That payment shall be considered payment in full to the provider, who may not bill or collect from the insured any amount above that payment, other than the deductible, coinsurance, copayment or other charges for equipment or services requested by the insured that are noncovered benefits” (emphasis added).

Court Case of Interest

The Oklahoma Supreme Court recently struck down their state's damages caps.  A copy of the opinion is here.  In a 5-3 opinion that has far-reaching implications for personal injury litigants, the Oklahoma Supreme Court ruled today that a $350,000 cap on the recovery of non-economic damages — commonly referred to as damages for pain and suffering — is unconstitutional. The lawsuit cap was enacted by the Legislature in a 2009 tort reform omnibus bill and was amended in 2011.
Tuesday, the Court held the statute was an impermissible “special law” because it targeted for different treatment only those who survive and bring civil lawsuits to recover for bodily injury. The statute did not impose the cap on wrongful death lawsuits brought on behalf of the estates of persons killed in accidents.

Book of Interest

I received Ball on Criminal Defense in the mail yesterday.  A link to it is located here.  I started reading it last night and several of the items in it are very enlightening on how to deal with the criminal burden of proof as a Defendant.  I would highly recommend this book.

New Cases Investigating

My office is currently looking at cases involving 3M earplugs and also possible discrimination claims against Murphy Oil.  Let me know if anyone knows of anyone affected that we may be able to help. 

Dissolved Corporation Lawsuit

The Mississippi Legislature enacted Section 79-4-14.21(f), which bars administratively dissolved corporations from maintaining an action.  Specifically, that statute states, “[a] corporation that has been administratively dissolved may not maintain any action, suit or proceeding in any court until the corporation is reinstated.” Miss. Code. Ann. § 79-4-14.21(f) (Rev. 2013).

Access to Military Records

You can get some military records at the following website which may be useful in discovery.
https://www.archives.gov/personnel-records-center/ompf-access-public#information

Mississippi Code 11-7-13

The Mississippi Wrongful death statute allows for an action to commence without an estate being open.  However, on a practical level, an estate normally has to be opened once the matter is resolved on who the money is to be paid to.  Some of the relevant language is below.  

In an action brought pursuant to the provisions of this section by the widow, husband, child, father, mother, sister or brother of the deceased or unborn quick child, or by all interested parties, such party or parties may recover as damages property damages and funeral, medical or other related expenses incurred by or for the deceased as a result of such wrongful or negligent act or omission or breach of warranty, whether an estate has been opened or not. Any amount, but only such an amount, as may be recovered for property damage, funeral, medical or other related expenses shall be subject only to the payment of the debts or liabilities of the deceased for property damages, funeral, medical or other related expenses. All other damages recovered under the provisions of this section shall not be subject to the payment of the debts or liabilities of the deceased, except as hereinafter provided, and such damages shall be distributed as follows:

Damages for the injury and death of a married man shall be equally distributed to his wife and children, and if he has no children all shall go to his wife; damages for the injury and death of a married woman shall be equally distributed to the husband and children, and if she has no children all shall go to the husband; and if the deceased has no husband or wife, the damages shall be equally distributed to the children; if the deceased has no husband, nor wife, nor children, the damages shall be distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death. If the deceased have neither husband, nor wife, nor children, nor father, nor mother, nor sister, nor brother, then the damages shall go to the legal representative, subject to debts and general distribution, and the fact that the deceased was instantly killed shall not affect the right of the legal representative to recover. All references in this section to children shall include descendants of a deceased child, such descendants to take the share of the deceased child by representation. There shall not be, in any case, a distinction between the kindred of the whole and half blood of equal degree. The provisions of this section shall apply to illegitimate children on account of the death of the mother and to the mother on account of the death of an illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates. The provisions of this section shall apply to illegitimate children on account of the death of the natural father and to the natural father on account of the death of the illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates, if the survivor has or establishes the right to inherit from the deceased under Section 91-1-15.

Federal Witness Fee Amounts

The following is information about the financial aspects regarding witnesses. Under 28 U.S.C. § 1821, a $40.00 per day attendance fee is established for a witness in a court of the United States. It also entitles a witness to reimbursement of travel and subsistence expenses in the same amounts payable to a federal government employee for official travel. You may view the complete statute at http://www.law.cornell.edu/uscode/text/28/1821.

The $40 attendance fee is a daily fee. If attendance is required for multiple days, the witness is entitled to the attendance fee for each day their appearance is required.

In addition to the attendance fee, a witness is also entitled to receive compensation for their travel. Title 5 United States Code § 5704 authorizes a mileage fee equal to the mileage allowance which the Administrator of General Services has prescribed. Current mileage rates can be obtained from the United States General Services Administration website at http://www.gsa.gov/mileage.

In addition to mileage, a witness is also entitled to reimbursement of any parking fees incurred.

Sanctions for Failure to Attend a Deposition

The rule governing a party's failure to attend a properly noticed deposition is very clear. "If a party . . . fails . . . to appear before the officer who is to take his deposition, after being served with a proper notice, . . . the court in which the action is pending on motion . . . may take any action authorized under subsections (A), (B), and (C) of subsection (b)(2) of this rule." M.R.C.P. 37(d) (emphasis added). One of the actions authorized by subsection (b)(2) is the issuing of an order "dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.]" M.R.C.P. 37(b)(2)(C). So under Rule 37, dismissal is an authorized sanction. 

Conservatorship to Probate

Below is Mississippi Code Annotated 91-7-68.  Most people nor attorneys are aware of it but it provides for a conservatorship to be converted to an estate.


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.

Power of Attorney and Arbitration

I saw this as an idea on arbitration that may be a good idea to include in a power of attorney.

NO POWER TO AGREE TO BINDING ARBITRATION-– Although I have given my attorney-in-fact this general and durable power of attorney, I specifically withhold from my attorney-in-fact the power to agree or consent prior to the actual occurrence of controversy to binding arbitration therefor, nor to agree in advance to any other process that would preclude the right to have a jury decide any issue in controversy concerning my person or my property, nor to limit in advance in any way my procedural rights to litigate such claims and the damages to which I may be entitled if successful.  This does not, however, preclude non-binding alternative dispute resolution processes such as mediation nor does it preclude submitting a dispute after it has occurred to an arbitration following the advice of counsel.

Visitation Presumption

The Mississippi Supreme Court has made it  clear that  the  objective of visitation is  that  “the  non-custodial  parent  .  .  .  and  child should  have as close and loving  a  relationship as possible, despite the fact that theymaynot live in the same house.” Dunn v. Dunn, 609 So. 2d 1277, 1286 (Miss. 1992) (citing Clark v. Myrick, 523 So. 2d 79, 83  (Miss. 1999)).  However,  the Court  has  also  found  that,  while  a  non-custodial  parent  is  presumptively entitled to  visitation as stated  in Griffin v. Griffin,  that  presumption can be overcome when “substantial  evidence”  justifies  doing  so.  Griffin  v.  Griffin,  237  So.  3d  743,  747  (Miss.  2018) (quoting Cox v. Mounds,  490 So. 2d 866, 870 (Miss. 1986)).   Cf.  Newsom  v. Newsom,  557 So. 2d 511, 517 (Miss. 1990) (emphasis removed) (holding “that the chancery  court has the power to restrict visitation in circumstances which present an appreciable danger of hazard cognizable in our law”).

Continuing Duty of Insurance to Investigate

In Mississippi, an insurance company has a continuing duty to investigate a claim even after litigation is filed. As such, bad faith may arise for failing to investigate.   Defendant [insurance company] is under a duty to conduct a full and thorough investigation, it is also under a continuing duty to investigate a loss, even after a lawsuit has been filed. Anthony v. State Farm Fire & Cas. Co., 2009 U.S. Dist. LEXIS 112660, *4 (S.D. Miss. 2009); accord Sobley v. S. Natural Gas Co., 302 F.3d 325, 339 (5^th Cir. 2002); Gregory v. Continental Ins. Co., 575 So.2d 534 (Miss. 1991) This Court has long held that because of the ongoing duty of investigation, the parties are able to introduce evidence related to the claim evaluation both pre- and post- suit.  “Because of Defendant’s continuing duty to investigate a loss, Plaintiffs may not prevent Defendant from introducing evidence outside the claim file even if the evidence came to light in the context of litigation, i.e., the parties may offer any evidence from the entire claim evaluation process pre- and post-suit.” Lebon v. State Farm Fire & Cas. Co., No. 1:08cv509, 2010 WL 1064705, at *2 (S.D.Miss. Mar. 18, 2010).”  Russ v. Safeco Ins. Co. of America, 203 WL 1310501 at *14 (S.D. Miss. 2013).