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).