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.