Impeachment Material Discoverable in Tennessee

 

Where surveillance videos of plaintiff were obtained in preparation for litigation and were thus work product, the Court of Appeals affirmed the trial court’s decision to require defendant to only produce those surveillance videos he intended to use at trial for impeachment purposes.

In Locke v. Aston, No. M2022-01820-COA-R9-CV (Tenn. Ct. App. Sept. 25, 2023), plaintiff filed an HCLA action against defendant doctor. After plaintiff nonsuited her first case and in anticipation of plaintiff re-filing, defendant’s counsel obtained surveillance videos of plaintiff. After plaintiff re-filed her case, a discovery dispute arose around the production of these surveillance videos. While the trial court originally ruled that the defendants should produce the videos without limitation, it subsequently amended its ruling and ultimately found that the surveillance videos were work product and that defendant was only required to produce those videos he intended to use at trial for impeachment purposes. On appeal, this ruling was affirmed.

Tenn. R. Civ. P. 26.02(3) governs when material that qualifies as work product is nonetheless discoverable by an opposing party. The Rule requires the person seeking discovery to show that they have a “substantial need of the materials in the preparation of the case and [are] unable without undue hardship to obtain the substantial equivalent of the materials by other means.” By ruling that only the videos that would be used for impeachment were discoverable, the trial court had agreed with defendant that plaintiff did not have a substantial need of surveillance video that corroborated her claim. Thus, substantial need was the primary issue in this appeal.

Muniment of Title

 In drafting orders for muniments of title, I had a title insurer start asking for some unusual items.    They are asking for title insurance purposes that the muniment of title entered by the Court specifically divest any heirs who don't want the property of title even if they sign consenting to only one family members being given the property.   

Rebuttal Expert Witnesses in State Court

 

September 28, 2023 Comments Sought on Proposed Amendments to Rule 26 of the Mississippi Rules of Civil Procedure In a 2018 comment to proposed amendments to Rule 26 of the Mississippi Rules of Civil Procedure, the Mississippi Association for Justice (MAJ) proposed “adding an explicit rule regarding disclosure of rebuttal expert opinions.” The Court referred MAJ’s proposal to the Advisory Committee on Rules.l The Court’s Rules Committee on Civil Practice and Procedure seeks comments on the Advisory Committee’s proposed amendments to Rule 26 and to Rule 26’s Advisory Committee Notes.  Comments must be filed with the Clerk of Appellate Courts at Post Office Box 249, Jackson, Mississippi 39205. The filing deadline is October 30, 2023.

Probating a Will for Muniment of Title Only

 Probating a will can often be a complex and time-consuming process, involving various legal formalities and court proceedings. However, in the state of Mississippi, there is a unique option available called "probating a will for muniment of title." This streamlined approach offers a more efficient way to transfer assets from a deceased person's estate to their heirs, making it an appealing choice for many families. In this blog post, we'll explore what probating a will for muniment of title entails and how it can simplify the estate settlement process in Mississippi.

Probating a will for muniment of title is a legal process specific to Mississippi that allows for the swift transfer of assets when certain conditions are met. Unlike a traditional probate proceeding, which involves a more comprehensive administration of the estate, muniment of title focuses solely on transferring the decedent's property and assets to the designated heirs or beneficiaries.

Key Characteristics of Probating a Will for Muniment of Title:

1. No Executor Appointment: In muniment of title proceedings, there is no need to appoint an executor or personal representative, reducing administrative burdens.
2. Limited Formalities: The process is less formal and does not typically involve court hearings or the appointment of an estate administrator.
3. Faster Resolution: Muniment of title is often completed more quickly than a regular probate administration, saving time and resources.

Conditions for Probating a Will for Muniment of Title

To be eligible for probating a will for muniment of title in Mississippi, certain conditions must be met:

1. The Decedent Had a Valid Will: There must be a valid and legally executed will in place.
2. No Outstanding Debts or Liabilities: The estate must be free from outstanding debts, with the exception of debts secured by specific property being transferred.
3. No Disputes or Controversies: There should be no disputes or controversies among heirs or beneficiaries regarding the distribution of assets.
4. Real Property Involved: Muniment of title is primarily used for the transfer of real property, such as real estate, land, or mineral interests.

Benefits of Muniment of Title Probate

Probating a will for muniment of title offers several advantages:

1. Cost-Effective: It can be more cost-effective compared to a full probate administration, as it avoids certain court fees and legal expenses.
2. Time-Efficient: The process is typically faster, allowing heirs to access their inheritance more quickly.
3. Simplified Process: With fewer legal formalities and no need for an executor, the process is generally less complicated.
4. Privacy: Muniment of title proceedings are often more private, as they do not involve as much court oversight as traditional probate.

 

Approval of Judgments as to Form

 “[A] party’s approval of an order as to form is not consent to the substance of the order.”  In re Cauley, 437 S.W.3d 650, 658 (Tex. App. 2014).  “One who approves a judgment as to form does not thereby give up the right to appeal.  He simply indicates that the written judgment accurately sets forth the court’s ruling; he may disagree with that ruling and may want to appeal it.” Bexar Cnty. Crim. Dist. Attorney’s Off. v. Mayo, 773 S.W.2d 642, 644 (Tex. App. 1989) (citation omitted).  The Mississippi Court of Appeals  recognized this point in Klein v. McIntyre, 966 So. 2d 1252, 1256-57 (¶15) (Miss. Ct. App. 2007), holding that an order signed by counsel as “Approved as to Form Only” was not a consent judgment.  And in Beck v. Goodwin, 456 So. 2d 758, 759-60 (Miss. 1984), our Supreme Court held that an “agreed order” that is “approved as to form only” does not waive issues for appeal.

Tennessee Supreme Court Holds Court Can Consider Patient’s Competence To Sign Power of Attorney

 

The Tennessee Supreme Court today rejected a Memphis nursing home’s argument that the trial court could not consider whether a resident with Down syndrome was competent to authorize his brother to act as his agent.  The nursing home sought to enforce an arbitration agreement signed on the resident’s behalf by the brother.  The Supreme Court held the trial court correctly considered evidence that the resident did not have the mental capacity to understand the document that authorized his brother to sign the agreement.

David Welch was diagnosed with Down syndrome shortly after birth.  David had no formal education; he could not read and had difficulty understanding and following instructions.  In 2012, James filled out a healthcare power-of-attorney form for David, giving James authority to act as David’s health care agent.  David “scratched his name” on the form, and James used it for several years to help David obtain health care.   

In 2016, James brought David to Christian Care Center of Memphis, a nursing home, to admit David as a resident.  James showed Christian Care his signed power-of-attorney and signed all of the admission paperwork, including an optional arbitration agreement.  The agreement waived David’s right to a jury trial and agreed to arbitrate any disputes with Christian Care.  At the time, the nursing home understood that David had Down syndrome.

David lived at Christian Care for a number of months.  He died in 2017, at the age of 62. 

In 2018, James, as administrator of David’s estate, filed this health care liability lawsuit against Christian Care, arising out of its care while David was a resident.  Christian Care filed a motion to compel arbitration under the agreement James signed on David’s behalf.  The trial court found that David did not have the mental capacity to sign the power-of-attorney naming James as his agent, so it denied Christian Care’s motion to compel arbitration.

Christian Care appealed to the Court of Appeals, which reversed.  The Court of Appeals held that, under a Tennessee law, Christian Care could rely on the power-of-attorney form David signed.  It held that the trial court should not have considered evidence on whether David was mentally competent to sign it, and therefore should have granted Christian Care’s motion to compel arbitration.  The Tennessee Supreme Court then granted James’s request for permission to appeal.

The Tennessee Supreme Court noted that the Tennessee statute Christian Care cited protects health care providers from liability if they “rely” in good faith on an agent’s health care decision for a patient.  In this case, the arbitration agreement James signed was optional; Christian Care would have admitted David to the facility even if James had refused to sign it.  As a result, the Court said, Christian Care could not show it “relied” on James’s decision to sign the arbitration agreement— Christian Care did not do anything different based on the arbitration agreement.  The Court held that the Tennessee law cited by Christian Care did not prevent the trial court from considering evidence on whether David had the mental capacity to designate James as his lawful agent.

The Supreme Court reversed the Court of Appeals and affirmed the trial court’s decision to deny Christian Care’s motion to compel arbitration.   

To read the Court’s opinion in James A. Welch et al. v. Oaktree Health and Rehabilitation Center LLC D/B/A Christian Care Centers of Memphis et al., authored by Justice Holly Kirby, go to the opinions section of TNCourts.gov

Definition of Minor Changing in Mississippi

 A recent amendment to Miss. Code Ann. §1-3-27, which took effect July 1, 2023, clarified the definition of a minor with the following language: The term “minor,” when used in statute, except as otherwise provided by law shall include any person, male or female, under twenty-one (21) years of age. If a statute refers to the ability to enter into a contract affecting personal property or real property, “minor” shall mean any person, male or female, under eighteen (18) years of age.  No more chancery approval is necessary for worker's compensation settlements for minors who are 18 years or older either under a new memo from the Comp Commission.

Family Cemetery in Mississippi

 Families often hold a deep connection to their roots, and one way to honor this connection is by establishing a family cemetery. In Mississippi, a state steeped in history and tradition, the process of obtaining a family cemetery is governed by specific regulations and requirements. This article aims to provide insight into the key prerequisites for establishing a family cemetery in Mississippi.

Mississippi's rich history is reflected in its diverse cultural heritage and the importance placed on ancestral ties. Establishing a family cemetery can be a way to pay homage to this heritage, preserving family legacies and connections for generations to come. However, it's crucial to be aware of the legal and practical requirements involved in the process.

Understanding Mississippi's Regulations

To establish a family cemetery in Mississippi, several legal considerations must be taken into account:

1. Land Ownership: The land on which the family cemetery is to be established must be owned by the family or designated for cemetery use. Ownership documentation, such as deeds and surveys, may need to be submitted as part of the application process.
2. County Regulations: While there is no statewide regulatory body governing family cemeteries, each county may have its own ordinances and regulations. It's essential to research and adhere to local guidelines to ensure compliance.    Additionally, there are also statutory requirements for approval by the County Board of Supervisors.  
3. Zoning Restrictions: The chosen property must comply with local zoning ordinances. Some areas may have specific zones designated for cemetery use. Checking with the local zoning authority can help determine the suitability of the chosen land.
4. Permits and Approvals: Depending on the location, size, and other factors, obtaining various permits and approvals may be necessary. These could include permits related to land use, environmental impact, and even historic preservation in cases where the property holds cultural significance.
5. Recording and Documentation: Formal documentation outlining the establishment of the family cemetery may need to be recorded with the county or state. This documentation could detail the intent to establish a cemetery, access rights, and maintenance responsibilities.

Family cemeteries offer a unique opportunity to preserve family histories and legacies. Beyond the legal requirements, families may consider additional steps to ensure the longevity and significance of the cemetery:

1. Maintenance Plans: Developing a clear plan for the ongoing maintenance of the cemetery is vital. This may involve outlining responsibilities for regular upkeep, landscaping, and repairs.
2. Access and Conservation: Ensuring ongoing access to the cemetery site and taking measures to conserve its historical and cultural significance can help maintain the connection between past and present.
3. Inclusion of Loved Ones: Engaging all family members in the decision-making process can help strengthen the sense of shared responsibility and emotional connection to the cemetery.

Conclusion

Establishing a family cemetery in Mississippi is a meaningful way to honor family heritage and preserve historical ties. By understanding and adhering to the legal requirements, as well as considering additional measures to ensure its longevity, families can create a lasting tribute that resonates through generations. As always, seeking legal counsel and guidance from local authorities can help navigate the intricacies of the process and pave the way for a respectful and enduring family cemetery.

 

Fugitive Dismissal Rule

On August 8, 2023, the Mississippi Court of Appeals decided Gillen v. Gillen, 2021-CA-00837-COA.   This case involves Gregory Gillen who was found in contempt of court for failing to deposit $1,000,000 into the court's registry as ordered. Despite various motions and appeals, the court maintained its decision. Gillen's absence from the court's jurisdiction led to the dismissal of his appeal under the "fugitive dismissal rule". His claims were either waived or found without merit [6, 7, 8, 9]. The fugitive dismissal rule allows a Court to dismiss an appeal where the other party flees the jurisdiction and refuses to participate in the case.

Covid 19 and Worker's Compensation in Mississippi

 In the ever-evolving landscape of workers' compensation claims, a recent legal case has shed light on the critical importance of medical proof in establishing compensability. The case of West v. The Nichols Center, 2021-WC-01403-COA located here, has not only ignited conversations within legal circles but has also raised pertinent questions about the nature of compensable injuries, specifically in the context of the COVID-19 pandemic.

The West v. The Nichols Center case revolves around a nurse who contracted COVID-19 while treating COVID-positive patients. Following her diagnosis, she developed a severe blood clot, which led to a series of legal proceedings to determine whether her condition qualified for workers' compensation benefits. The central issue hinged on whether there was sufficient evidence to establish a direct link between her COVID diagnosis and her work environment.

In a unanimous decision (10-0), the Mississippi Court of Appeals affirmed the initial finding that the nurse's COVID diagnosis and subsequent complications were not compensable. The crux of the decision lay in the absence of both lay and medical proof that the nurse had contracted the virus while on the job. While the nurse's exposure to COVID-positive patients was evident, the lack of concrete evidence connecting her contraction of the virus to her workplace was a pivotal factor in the ruling.

This case serves as a stark reminder of the crucial role that medical proof plays in determining the compensability of workplace injuries. For legal professionals and stakeholders involved in workers' compensation claims, the case of West v. The Nichols Center underscores the significance of establishing a clear and substantiated connection between a medical condition and the work environment.

Many had anticipated a robust discussion regarding whether COVID-19 qualified as an "accidental injury" or an "occupational disease" within the statutory framework. However, the case took an unexpected turn. A footnote in the ruling provides insightful clarity as to why this anticipated discourse did not materialize. Rather than delving into the categorization of COVID-19, the focus remained on the foundational element of medical proof. The absence of such proof ultimately steered the case's trajectory.

The West v. The Nichols Center case serves as a watershed moment for the realm of workers' compensation claims, prompting a deeper examination of the necessity of medical proof in establishing compensability. As legal practitioners and professionals navigate the complexities of workplace injuries, this case highlights the pivotal role that evidence-based connections between medical conditions and work environments play in shaping the outcomes of claims. In an era defined by the global pandemic, where the boundaries between work and health have become increasingly intertwined, the lessons gleaned from this case resonate powerfully, guiding future discussions and decisions in the intricate domain of workers' compensation.

Current Problems with Bankruptcy and Litigation

 

Bankruptcy is intended to provide individuals and businesses facing insurmountable financial distress with a fresh start and protection from creditors. However, there is a growing concern that some entities are misusing bankruptcy as a strategy to silence ongoing litigation and avoid accountability. This article delves into the issue of how bankruptcy is being exploited to hinder legitimate legal claims and undermine the principles of justice and fairness.

The Intersection of Bankruptcy and Litigation

Bankruptcy and litigation are two distinct legal processes with unique purposes. Bankruptcy allows debtors to reorganize their debts under Chapter 11 or liquidate assets under Chapter 7, while litigation involves the resolution of legal disputes through the court system. It is essential to recognize that both processes serve crucial functions within the legal system and should not be manipulated to circumvent the law's true intent.

The Misuse of Bankruptcy

Automatic Stay Abuse: One of the key benefits of filing for bankruptcy is the imposition of an automatic stay, which halts all collection actions and legal proceedings against the debtor. In some instances, unscrupulous entities may file for bankruptcy merely to trigger an automatic stay and temporarily suspend ongoing litigation, buying themselves time to restructure or escape accountability. This undermines the rights of legitimate claimants seeking redress.

1. Bankruptcy Shield: Bankruptcy can act as a shield to protect assets from litigation-related claims. By filing for bankruptcy, some entities may intentionally deplete their assets or transfer them to related parties, thereby frustrating the efforts of plaintiffs seeking to enforce judgments against them. This tactic prevents successful litigants from recovering their rightful dues, hindering the pursuit of justice.

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3. Prolonged Reorganization: While the reorganization process is intended to help struggling businesses recover, some entities may exploit this process to indefinitely delay or prolong litigation. By remaining in a state of perpetual reorganization, they can effectively forestall litigation proceedings, impacting the rights of plaintiffs to timely justice.

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5. Chilling Effect on Potential Plaintiffs: The knowledge that a defendant has filed for bankruptcy to avoid litigation can have a chilling effect on potential plaintiffs, discouraging them from pursuing legitimate claims. This stifling effect on potential litigants undermines the fundamental principle of access to justice for all.

Legal Solutions and Recommendations

1. Bankruptcy Abuse Prevention: Legislators and courts must take steps to prevent bankruptcy from being misused as a tool to silence litigation. Implementing stricter eligibility criteria for bankruptcy filings, such as a genuine financial need and mandatory alternative dispute resolution mechanisms, can help filter out abusive cases.

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3. Creditor's Standing: Enhancing the standing of creditors and litigants in bankruptcy proceedings can offer them a stronger voice in determining the validity of the debtor's claims and ensure that potential abuses are identified and addressed promptly.

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5. Expedited Litigation Review: Establishing special bankruptcy courts to promptly review the legitimacy of bankruptcy filings that coincide with ongoing litigation can prevent unnecessary delays and deter bad-faith attempts to misuse the bankruptcy process.

6. Transparency and Disclosure: Requiring greater transparency and disclosure during bankruptcy proceedings can help identify hidden assets or suspicious transfers, enabling better scrutiny of the debtor's actions and motives.

Bankruptcy serves a vital role in providing a fresh start for the financially distressed. However, when it is abused as a tool to stifle litigation and evade accountability, it undermines the very principles of justice and fairness. Implementing legal safeguards and stricter oversight is essential to preserve the integrity of both bankruptcy and the litigation process, ensuring that the law continues to serve its true purpose – protecting the rights of all parties involved.

Appeals Process in Mississippi

 The Appellate System in Mississippi: An Overview

In Mississippi, like many other states, the appellate system serves as the second level of the judicial hierarchy. Appeals are primarily designed to allow parties dissatisfied with a trial court's decision to request a review of the case by a higher court. This crucial stage in the legal process ensures that errors and mistakes made during the trial are identified and corrected, providing a chance for justice to be served more accurately.

Grounds for Appeal

It is essential to understand that an appeal cannot be initiated simply because a party disagrees with the trial court's decision. In Mississippi, for an appeal to be considered, the appellant (the party filing the appeal) must establish valid grounds, such as:

1. Errors of Law: The appellant must demonstrate that the trial court made significant errors in interpreting and applying the law. These errors may include the exclusion of crucial evidence, improper jury instructions, or misapplication of legal principles.
2. Abuse of Discretion: If the trial judge acted in an arbitrary or capricious manner, demonstrating an abuse of discretion that unfairly impacted the case's outcome, it may serve as grounds for appeal.
3. Legal Precedent: An appellant may also argue that the trial court's decision conflicts with established legal precedent in Mississippi, rendering it fundamentally flawed.
4. Constitutional Issues: If a party believes that their constitutional rights were violated during the trial, such as the right to due process, equal protection, or freedom from cruel and unusual punishment, they may seek redress through an appeal.

The Appellate Process

In Mississippi, the appellate process typically involves the following steps:

1. Filing the Notice of Appeal: The appellant must formally notify the court and all relevant parties of their intent to appeal the trial court's decision. This notice must be filed within a specific time frame after the trial court's judgment is entered.
2. Preparation of the Record: The trial court will compile a record of the case, including all relevant documents, transcripts, and evidence presented during the trial. This record will be essential for the appellate court's review.
3. Briefs and Oral Arguments: Both parties, the appellant, and the appellee (the party responding to the appeal) will submit written briefs to the appellate court, outlining their arguments. Additionally, the parties may be granted the opportunity to present oral arguments before the appellate judges.
4. Appellate Court's Decision: After a thorough review of the case and consideration of the parties' arguments, the appellate court will issue its decision. The court may uphold the trial court's decision, reverse it, remand the case for further proceedings, or modify the judgment.
5. Potential Further Appeals: In certain circumstances, parties may seek further appeal to the Mississippi Supreme Court if they are dissatisfied with the appellate court's decision. However, such appeals are not guaranteed and are subject to specific criteria.

Final Thoughts

The appellate process in Mississippi plays a pivotal role in maintaining the integrity of the judicial system, promoting fairness, and safeguarding individuals' rights. It serves as a critical check on potential errors made during trials and ensures that justice is not only done but seen to be done.

As citizens, understanding how the appellate system works empowers us to assert our rights effectively and fosters trust in the legal system's ability to uphold justice. If you find yourself in a situation where you believe an appeal is warranted, consulting an experienced attorney is vital to navigate the complex appellate process and secure the best possible outcome for your case.

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Soberlink

In recent years, the legal system has witnessed a rise in innovative technologies aimed at improving accountability and compliance in various areas. One such groundbreaking tool is Soberlink, a state-of-the-art alcohol monitoring system. This article delves into the features, benefits, and implications of Soberlink for law practices, shedding light on how this technology can revolutionize the way legal professionals approach alcohol-related cases.

Understanding Soberlink: Soberlink is a portable breathalyzer device coupled with a robust cloud-based platform that offers real-time monitoring and reporting capabilities. It is designed to ensure compliance with court-ordered sobriety programs, custody agreements, workplace policies, and other legal requirements involving alcohol abstinence.

How Soberlink Works:

1. Portable Breathalyzer: Soberlink's breathalyzer device is compact, discreet, and easy to use. Individuals involved in alcohol-related legal matters can blow into the device, which measures their blood alcohol concentration (BAC) levels. The device utilizes cutting-edge fuel cell technology for highly accurate and reliable results.

2. Real-Time Reporting: Once a breath sample is taken, Soberlink transmits the BAC data to a secure cloud-based platform via cellular connectivity. This real-time reporting ensures immediate and accurate monitoring, eliminating the need for manual reporting or delayed information.

3. Remote Monitoring: Legal professionals, such as attorneys, judges, or probation officers, can access the Soberlink platform from any internet-connected device. They can review and analyze the data, including BAC levels, date and time stamps, and GPS location if available. This remote monitoring feature offers convenience and flexibility, allowing professionals to track compliance and intervene promptly if necessary.

Benefits of Soberlink for Law Practices:

1. Improved Accountability: Soberlink promotes accountability by providing real-time, objective, and tamper-proof data on alcohol consumption. This technology offers a transparent record of an individual's sobriety progress, fostering trust between the legal system and the monitored individual.

2. Enhanced Compliance: With Soberlink, legal professionals can closely monitor compliance with court-ordered sobriety programs. By receiving immediate notifications regarding any violations or missed tests, they can intervene promptly to address non-compliance or potential relapses.

3. Time and Cost Efficiency: Soberlink streamlines the monitoring process by eliminating the need for frequent in-person visits and manual reporting. Remote monitoring and real-time reporting reduce administrative burdens for legal professionals and minimize travel requirements for individuals being monitored.

4. Objective Evidence: Soberlink provides objective and reliable evidence of sobriety or alcohol consumption. This data can be invaluable in legal proceedings, such as child custody cases, probation hearings, or DUI/DWI matters, helping to strengthen arguments and make informed decisions based on accurate information.

5. Client Support and Rehabilitation: Soberlink not only serves as a monitoring tool but also promotes a culture of support and rehabilitation. Regular testing and remote monitoring can motivate individuals to maintain sobriety and serve as a reminder of the consequences of alcohol abuse.

Considerations and Future Implications: While Soberlink offers significant benefits, it is important to approach its implementation ethically and with proper consideration for privacy concerns. Clear guidelines and protocols must be established to ensure the fair and appropriate use of this technology within the legal system.

Looking ahead, Soberlink's success has the potential to pave the way for further advancements in alcohol monitoring and related technologies. As innovations continue to emerge, law practices can harness these tools to enhance their ability to promote compliance, accountability, and successful outcomes for their clients.

Conclusion: Soberlink represents a groundbreaking solution in the legal field, empowering law practices to monitor alcohol abstinence effectively. By providing real-time data, enhancing compliance, and streamlining the monitoring process, Soberlink offers a range of benefits that can lead to improved outcomes for legal professionals and their clients. As this technology continues to evolve, it holds great promise in reshaping how the legal system addresses alcohol-related cases, fostering transparency, accountability, and rehabilitation.