Party Testifying to Value of Property

Random Caselaw of Interest:

A party may testify as to the value of his or her own property. Community Bank, Ellisville, Miss. v. Courtney, 884 So.2d 767, 774 (¶ 23) (Miss.2004) (citing Regency Nissan, Inc. v. Jenkins, 678 So.2d 95, 101 (Miss.1996)).

Doctrine of Contribution

On Tuesday, the Mississippi Court of Appeals decided Remy Jonathan Bozant v. Hang M. Nguyen located here.  One of the issues was when does a party have to reimburse the other party.  The Court made the following analysis which is interesting on the issue.

"¶12. In Celotex Corp. v. Campbell Roofing & Metal Works Inc, 352 So. 2d 1316, 1318

(Miss. 1977), the supreme court held:

The doctrine of contribution requires that persons having a common liability, such as the joint and several judgment against Campbell and Celotex, bear their individual share of the burden imposed and not have any one of them carry the full load.  The general rule of common law is that the one who is compelled to satisfy, or pay more than his just share of such common burden or obligation, is entitled to contribution from the others to obtain from them payment of their respective shares.

(Emphasis added).  The chancery court held Remy in contempt for his failure to pay to the

IRS his 25% of the total tax liability for 2013 and 2014 and ordered him to pay his 25%

amount owed directly to Kat, despite the fact that she had not yet paid that portion to the IRS.

Although Kat is making payments to the IRS to satisfy the couple’s previous tax liabilities

for 2013 and 2014, she has not yet carried “the full load” of the obligation.  To order Remy

to pay Kat his entire 25% portion of tax debt for 2013 and 2014 would hold Remy in

contempt for nonpayment for a debt that Kat has not paid.  Kat may make such payments on

his behalf at some point in the future, but that had not yet happened at the time of the

contempt order.  A person cannot be held in contempt by a court for some future violation

of a court order that has not yet happened, regardless of the likelihood of such future

violation.  “The primary purpose of a civil-contempt order is to enforce compliance with a

court order.” Chism v. Chism, 285 So. 3d 656, 666 (¶35) (Miss. Ct. App. 2019) (citing

Stallings v. Allen, 201 So. 3d 500, 504 (¶14) (Miss. Ct. App. 2016)), cert. denied, 284 So.

3d 753 (Miss. 2019).  If Remy paid the IRS his 25% share during the time Kat was paying

the portion she owed, then he would not owe Kat anything, and Kat would have paid nothing

extra than what she owed.  If, on the other hand, Remy did not pay the debt he owed to the

IRS and Kat had paid her portion and then his portion, then Kat would certainly have a right

to seek payment for the 25% he failed to pay and that she was forced to pay.  While it is true

Kat entered into an agreement with the IRS to pay the entire debt, she is responsible for 75%

of that debt and was still paying her share of the debt when she filed her contempt petition.

The chancery court’s contempt order anticipated Remy’s failure to comply with the PSA as

to the years 2013 and 2014, and the court may very well be correct at some point in the

future.  But until such time as Kat has been required to actually pay the portion of the debt

Remy owes, she cannot seek contribution.  When she has been forced to pay Remy’s debt or

to “carry the full load” of the couple’s joint debt, then she can seek contempt for Remy’s

failure to pay.  We reverse and remand that part of the judgment holding Remy in contempt

for his 25% portion of the 2013 and 2014 taxes because Kat had not yet paid that amount to

the IRS at the time of the contempt order.  Remy cannot be in violation of the PSA for his

failure to pay when he had not yet failed to pay."

The general idea is that you cannot be in contempt for not paying an item that is not even due yet.

Tennessee Court Extensions

The Tennessee Supreme Court today issued an Order that extends the judicial state of emergency and eases restrictions imposed by previous court orders. These changes include allowing jury trials to begin after July 3 with strict protocols; allows eviction cases to be heard beginning June 1; ends deadline extensions; and allows local judicial districts to continue operating under their approved plans for expanded in-person proceedings. The Order continues to encourage remote proceedings via video or audio conference whenever possible.  

Today’s Order allows jury trials to begin after July 3, 2020, if strict social distancing and capacity protocols can be met and CDC guidelines are followed. The Order also provides for six-person juries in civil cases unless a twelve-person jury is specifically requested by a party.  

Deadlines in court rules, statutes, and administrative rules that were previously extended until May 31 are extended only until June 5. After this date, the Supreme Court does not anticipate any further extension of deadlines. “The point of extending deadlines was to give judges, attorneys, and litigants time to adjust to this new normal and weather this storm a bit,” Chief Justice Bivins said. “But, extensions cannot go on indefinitely. Judges, of course, can extend deadlines on an individual basis when permissible.”

The Order also lifts the broad restrictions on evictions. As of June 1, eviction cases may be heard if the landlord states under penalty of perjury that the action is not subject to the federal Coronavirus Aid, Relief, and Economic Security Act (CARES) Act.

The Supreme Court issued an order on April 24 that allowed judicial districts to expand in-person proceedings if the Supreme Court approved a plan submitted by the district addressing such issues as social distancing, limiting access to the courtroom, and other strategies designed to limit the spread of Covid-19 as much as possible. The majority of judicial districts are now operating under those approved plans, which are available on the TNCourts.gov website. Judicial districts that did not submit a plan are continuing to operate under the parameters set forth in the March 25 Order. 

Covid and Discovery

In Ogilvie v. Thrifty Payless, the Western District of Washington court denied the parties’ joint motion to extend court deadlines, including the fact discovery deadline, due to the dilatory impact of COVID-19 on the parties’ ability to conduct depositions. After noting the parties’ failure to address the possibility of taking depositions by remote means (and encouraging their use), the court put a sharp point on why the parties needed to resort to such depositions: “This pandemic may well be with us for many months to come. We will all need to adjust to keep litigation moving forward. Unless the parties have explored alternative means to complete discovery, the court does not consider the mere existence of the pandemic as ‘good cause’ for a delay in the case schedule.”

Citation:  Case No. C18-0718JLR, 2020 U.S. Dist. LEXIS 83620, at *6 (W.D. Wash. May 12, 2020).

Tennessee Self-Defense Case

The Tennessee Supreme Court has clarified that a trial court is required to charge a jury on self-defense only when the issue has been fairly raised by the proof at trial.

The defendant, Antonio Benson, was charged with first-degree premeditated murder.  The evidence presented at trial suggested that he and the victim became involved in a physical altercation, during which the unarmed victim punched the defendant and caused his nose to bleed.  In response, the defendant shot the victim five times.     At trial, the defendant argued that the jury should be allowed to consider whether he was lawfully defending himself.  The trial court found that nothing in the proof at trial raised the issue of whether the defendant lawfully used deadly force in defending himself against a punch in the nose by a petite, unarmed woman. The trial court, therefore, refused to charge the jury on self-defense.  The defendant was convicted of first-degree murder and sentenced to life in prison.

The Court of Criminal Appeals reversed, concluding that the trial court erred in not allowing the jury to decide whether the defendant lawfully defended himself with the use of deadly force.  The Supreme Court granted the State’s application for permission to appeal to consider the gatekeeping function of a trial court when assessing whether self-defense has been fairly raised by the proof and to further evaluate the quantum of proof necessary to require a trial court to charge a jury on self-defense.

In a unanimous opinion, the Supreme Court held that the trial court, not the jury, must make the threshold determination of whether self-defense has been fairly raised by the proof.  The Court determined that the trial court properly exercised its gatekeeping function in this case and was not required to charge the jury on the issue of self-defense because the evidence, when viewed in the light most favorable to the defendant including all reasonable inferences that could be drawn, did not fairly raise an issue of whether the defendant was lawfully defending himself when he used deadly force.  The Supreme Court reversed the holding of the Court of Criminal Appeals and reinstated the judgment of the trial court.

To read the unanimous opinion in State v. Antonio Benson, authored by Justice Roger A. Page, visit the opinions section of TNCourts.gov.

Intimately Connected Doctrine

Under the intimately connected doctrine, liability is not generally imposed on an owner who contracts with another to perform work, and the contractor or their employee suffers injuries that “arose out of or were intimately connected with the work.”  Magee v. Transcon. Gas Pipe Line Corp., 551 So. 2d 182, 185 (Miss. 1989) (citing Hathorn v. Hailey, 487 So. 2d 1342, 1344-45 (Miss. 1986)); see also Coho Res., Inc. v. Chapman, 913 So. 2d 899, 905-06 (Miss. 2005).  The lone exception applies to arrangements where “the project owner maintains any right of control over the performance of that aspect of the work that has given rise to the injury.”  Id. at 186 (citing Fruchter v. Lynch Oil Co., 522 So. 2d 195, 199-200 (Miss. 1988)); see also Chapman, 913 So. 2d at 906.

Mortgage and Covid-19

The update on the link here summarizes the credit reporting, mortgage forbearance, and the temporary foreclosure and eviction moratorium sections of the CARES Act, which became effective on March 27, 2020, and lists the types of mortgage loans covered by the Act.

The Update also includes general information applicable to all homeowners, links to the Fannie Mae and Freddie Mac loan look-up cites, and a link to a very basic template Request for Information to obtain the identity of the owner of a loan. 

Additional information on other COVID-19 related issues is available on NFHA’s COVID-19 webpage.