Wow. Just Wow. Part Deux

July 23, 2014 § 4 Comments

It was only month before last that I posted in Wow. Just Wow about a plaintiff’s attorney who failed to appear on time before a MSSC panel for a show-cause hearing, and kept digging his hole deeper as he addressed the court. He was fined and ordered to contact the lawyers’ assistance program.

Well, it appears that the lesson did not take. Here’s what the court ordered last week:

EN BANC
2013-IA-00181-SCT

Vicksburg Healthcare, LLC d/b/a River Region Health System v. Clara Dees; Warren Circuit Court; LC Case #: 10,0151-CI; Ruling Date: 01/22/2013; Ruling Judge: Isadore Patrick, Jr.; Disposition: Attorney Michael E. Winfield shall appear before this Court on Thursday, July 24, 2014, at 10:00 a.m. and show cause, if any he can, why he should not be held in contempt for failing to pay timely to the Clerk of this Court the sanctions imposed in the May 2 order. Winfield shall file a response to Vicksburg Healthcare’s Motion to Hold Appellee in Contempt and Second Motion to Hold Appellee in Contempt on or before July 14, 2014. Counsel for Vicksburg Healthcare shall appear at the show-cause hearing on Thursday, July 24, 2014, at 10:00 a.m. and present Vicksburg Healthcare’s Motion to Hold Appellee in Contempt and Second Motion to Hold Appellee in Contempt. Winfield is hereby given notice that a finding of contempt could result in one or more of the following: (1) having the Appellee’s Brief struck; (2) entry of a judgment in favor of Vicksburg Healthcare; (3) an order that he pay the entire $2,586 in attorney’s fees incurred by Vicksburg Healthcare; (4) suspension or disbarment; or (5) incarceration until Winfield purges himself of contempt. A copy of this order shall be forwarded to Winfield’s client, Clara Dees, at the mailing address provided by Winfield to the Clerk of this Court. Order entered.

Ouch.

Perfecting Your Appeal

July 22, 2014 § Leave a comment

I think there is considerable confusion among attorneys over how to perfect an appeal and what are the deadlines that apply.

Jane Tucker has an excellent post, Perfecting Your Appeal, that sets out the process in 1-2-3 order, in about as clear a fashion as can be done. I recommend that you read it and have it handy for your next appeal.

From motions and orders of the MSSC that cross my desk, I have seen confusion over appeal bonds, deadlines, deposits for record costs, and designation of record. It’s really not that complicated, though; the MRAP applies, and the procedures are there.

Two final points … (a) MRAP 24(b) requires that the trial judge be served with a copy of every brief; in practice, this is not being done; and (b) If you file a petition for an interlocutory appeal, it would be courteous and a singular mark of your professionalism if you would simultaneously serve a copy on your trial judge because she is permitted to file a response within 14 days of your filing, per MRAP 5(b).

I don’t usually address appeal procedures here because I try to focus on chancery trial practice. With the apparent confusion I have seen among some lawyers in getting their appeals aloft, I thought this might be helpful.

Ravenstein: Sizzle or Fizzle?

July 21, 2014 § 7 Comments

I vote fizzle.

Last December I reported that the MSSC was asking for additional briefing in the case of Ravenstein v. Hawkins ” … addressing whether equal protection would be violated by an interpretation that child support may not be ordered for adult children who are mentally or physically incapable of self-support under Sections 93-5-23 and 93-11-65, given the mandate of Section 43-19-33 that a certain class of people may receive such support …”

To me, that signaled that the high court was preparing to address the troubling issue of parental duty to support adult disabled children. The last MSSC case to address the issue was Hays v. Alexander, in June, 2013, about which I posted here. Back then, I said this:

The MSSC yesterday ruled in Hays v. Alexander that there is nothing in the common law that would empower the court to create a duty in parents to support adult disabled children. The court said at ¶ 15: “The power to grant the authority to require parents in Mississippi to support their adult children is confided to a separate magistry: the Legislature. Our courts are without the constitutional power to declare otherwise.”

The court handed down its adjudication of Ravenstein last Thursday, and, the bottom line is that we are exactly where we were post-Hays v. Alexander.

John and Elisha Ravenstein were divorced from each other in 1998. In the divorce judgment, the chancellor ordered Mr. Ravenstein to pay lifetime child support for his handicapped son, Ryan. The chancellor found that it would be unjust for the child to become a ward of the state upon attaining age 21 when the parents had the financial ability to care for him. John filed a R59 motion, but never appealed.

When Ryan turned 20, his mother filed a petition asking to be appointed Ryan’s conservator. John counterclaimed that he should be appointed conservator, or that both parents be appointed co-conservators.

When Ryan turned 21, John stopped paying child support to Elisha or Ryan, and deposited the money into the registry of the court. He also filed a MRCP 60(b) motion asking the court to find that the 1998 judgment was void as a matter of law, since it improperly extended his child support obligation beyond Ryan’s 21st birthday.

The chancellor ruled in Elisha’s favor on the conservatorship. She also overruled John’s plea for R60 relief. John appealed.

The MSSC, by Justice Waller, affirmed the chancellor’s ruling on the R60 issue, the rationale for which is worth a read. The court reversed and remanded on the appointment of the conservator because the court applied the wrong legal standard.

On the issue of the application of the code sections cited above, the court said:

 ¶32. After a thorough review of the supplemental briefs filed by the parties and the State, we find that it is unnecessary to address this issue.  We find that John waived his right to challenge his child-support obligation when he failed to appeal Chancellor Lutz’s 1998 judgment and waited thirteen years to attack it collaterally. We reach this conclusion without deciding whether Sections 93-5-23 and 93-11-65 of the Mississippi Code should be interpreted to allow for the provision of post-majority support for adult disabled children. The constitutionality of Section 43-19-33(3), which does not apply to the parties here, is not relevant to the disposition of this case.  See Kron v. Van Cleave, 339 So. 2d 559, 563 (Miss. 1976) (“It is familiar learning that courts will not decide a constitutional question unless it is necessary to do so in order to decide the case.”).

Thus, when he failed to appeal in 1998, John waived his right of review and the court was deprived of authority to address the issue.

Justice King wrote a brilliantly-reasoned dissenting opinion making a strong case that our law in this area is unconstitutional as a denial of equal protection. If you ever have a case involving this issue, he has written your brief for you.

I think this is an issue that must be addressed eventually. Ravenstein, however, proved not to be the vehicle due to its peculiar procedural posture.

Maybe when the right case goes up Justice King will write the majority opinion.

New CLE Requirement for New Lawyers

July 18, 2014 § 6 Comments

The MSSC yesterday published a new CLE requirement for new lawyers. The change takes effect July 1, 2015.

The change will mean that newly-admitted lawyers will be required to undergo a new-lawyer program to be created and administered by the Commision on Mandatory Legal Education. Currently, lawyers are exempt from CLE requirements in their first year of practice.

This is the new language:

 Each attorney newly licensed to practice law in the State of Mississippi, from and after August 1, 2015, shall, by the conclusion of the second CLE year occurring after their date of admission to The Mississippi Bar, attend or complete a new-lawyer program approved by the Commission on Continuing Legal Education, which shall be comprised of a total of twelve (12) actual hours of CLE to include six (6) hours of basic skills training and six (6) hours of ethics/professionalism. Completion of the new-lawyer program shall satisfy the requirement of subsection (a) of this Rule for such newly licensed attorney for both the CLE year of admission and the next succeeding CLE year.

Attorneys newly licensed to practice law in the State of Mississippi, but previously admitted to the practice of law in another state, may be exempted from completing the six (6) hour basic skills training component of the new-lawyer program. To qualify for this exemption, within three (3) months of admission to The Mississippi Bar, the newly licensed attorney must submit an affidavit to the Commission on Continuing Legal Education, providing the date or dates of admission in every other state in which the attorney is admitted to practice and a declaration that the attorney has been actively engaged in the practice of law for five (5) or more years immediately prior to admission in this state. Upon submission of a timely affidavit, the newly licensed attorney shall be required to complete the six (6) hour ethics/professionalism component of the new-lawyer program within nine (9) months, after which time the attorney will be required to comply with the annual CLE requirement prescribed in Rule 3(a). Attorneys eligible for the exemption prescribed herein who fail to timely submit the required affidavit shall be required to complete the new-lawyer program in its entirety.

I give the concept an A+. Especially the ethics and professionalism component. I’ll withhold grading execution until I see the curriculum and the results.

But I hope new lawyers won’t think this few hours of classroom time will season them somehow into competence.

It takes a lot of hard work to develop a person into a lawyer. A law degree and admission to the bar are merely your permission to commence that process. And it takes help; you can only do it imperfectly on your own.

There’s a clear difference between a young lawyer who has had the benefit of mentoring and one who has not. The problem is that there are many young lawyers who never have the benefit of mentoring. Some are merely “thrown into the fire” by lawyers in their law firm because that’s how they themselves learned, or out of indifference, or in the mistaken belief that the youngster learned how to practice law in law school. Some are on their own and never seek out a mentor, and no one ever offers. Some think they know it all and do not need a guiding hand. All of those approaches are misguided and only render the young lawyer’s growth process either far more difficult or even doomed, because practicing law nowadays is far too complicated to figure out without help.

Can a few hours of lecture and a sheaf of forms substitute for wise, gray-haired advice and assistance? I insist not.

If you are a young lawyer feeling your way awkwardly along the foggy, snare-laden landscape of the law, I encourage you to seek out an experienced, ethical lawyer and make arrangements for him or her to give you advice and guidance on how to practice the law you learned about in law school. Offer to carry his or her briefcase to trial to see how it is done. Ask about what it takes to do a title opinion. Seek out that wise counselor to help you resolve ethical and practical questions that come up for which the answers are not immediately obvious to you.

Law school introduces you to how to think like a lawyer (analytical thinking), the basics of the law, and how to find the law. That’s about 10% of what is involved in the practice of law. The other 90% you will have to master through your own efforts and with help.

So I look at this new requirement as a positive step. But not a substitute for the strenuous process of becoming a lawyer.

Reprise: 8.05′s Worth Their Weight in Gold

July 17, 2014 § 2 Comments

Judge Fair of the COA called 8.05′s the “gold standard” of financial proof in chancery court. Yet, quite often what we are given is either fool’s gold or pure lead.

Stop fiddling around and get serious about your client’s financial statements.

Here’s just about everything I can offer to help …

FIVE MORE TIPS FOR MORE EFFECTIVE RULE 8.05 FINANCIAL STATEMENTS

March 14, 2011 § 6 Comments

I posted here ten tips for more effective financial statements.

Here are a handful more to use in your quest for financial statement perfection:

  1. Number the pages.  It saves the fumbling around as the witness and the court are trying to orient themselves to your questioning.  And use the page numbers in questioning the witness:  “Ms. Smith, look with me at page 3, line 6.”  That’s a lot clearer and easier for a witness to follow than asking “Now you say you spend $200 a month on clothes for yourself; how did you come up with that?” 
  2. Add or delete categories to meet your needs.  Your client spends $65 a month buying yarn and other materials to feed her knitting habit.  Why not replace an unused catergory like “Transportation (other than automobile)” with “Hobby Expenses.”  It would be a whole lot clearer than lumping it in with household expenses or something else, and will make it easier for your nervous client to understand while testifying.
  3. Don’t list a deduction as “mandatory” when it is not.  Deductions required by law, such as taxes and social security are excluded from adjusted gross income for calculation of child support.  Voluntary contributions, such as 401(k) deductions, health insurance premiums, and the like are not excluded from income.  When you list voluntary deductions as “mandatory,” you are at worst planting false information in the record, and at best confusing the record.  Your client does not know the distinction.  This is part of practicing law: advising your client how to properly fill out his or her 8.05.
  4. Attach a current pay stub.  Pay stubs are a marvelous source of information.  Quite often clients (and attorneys, I am sad to report) miscalculate income.  A current pay stub, preferably with year-to-date (YTD) info is a great tool to check the income figures.  Pay stubs also show the true amounts of overtime, bonuses, deductions for insurance and other items, andd retirement contributions. 
  5. Tailor your 8.05 to the case you are trying.  In a divorce case, you can have one column of figures showing your client’s current expenses, one showing the household expenses before the separation (to show standard of living), and a third column showing her anticipated expenses following the divorce.  In a modification case, add a column on both the income and expense side showing what your client’s income and expenses were at the time of the judgment you are seeking to modify. 

Of all the documents you admit into evidence at trial, the 8.05 is the one that the judge will study the closest and spend the most time poring over.  Make it a workhorse for your case.

 

R.I.P. Henry Palmer

July 16, 2014 § 2 Comments

Of Meridian.

A great lawyer, jurist, and dear, dear friend for whom I had the greatest trust and respect. A major loss. God bless Jan, Hap, Gil, and David.

 

Mississippi’s Uniform Trust Code

July 16, 2014 § Leave a comment

The law of trusts in in this state has undergone a major transformation, effective July 1, 2014, with adoption of the Mississippi Uniform Trust Code.

Mississippi’s law of trusts now will be more closely aligned with that of other states that have adopted the uniform law.

The bill passed by the legislature is 132 pages long, a tad much to try to expound on here, but to give you an idea of the new law’s breadth, here is merely the title of the bill:

AN ACT TO CREATE THE MISSISSIPPI UNIFORM TRUST CODE, TO BE CODIFIED IN TITLE 91, CHAPTER 8, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE CREATION, ADMINISTRATION, MODIFICATION, TERMINATION, AND VALIDITY OF TRUSTS; TO CREATE NEW SECTION 91-8-101, MISSISSIPPI CODE OF 1972, TO CREATE A SHORT TITLE; TO CREATE NEW SECTION 91-8-102, MISSISSIPPI CODE OF 1972, TO PRESCRIBE THE SCOPE OF THE ACT; TO CREATE NEW SECTION 91-8-103, MISSISSIPPI CODE OF 1972, TO ENACT DEFINITIONS; TO CREATE NEW SECTION 91-8-104, MISSISSIPPI CODE OF 1972, TO ENUMERATE THE CIRCUMSTANCES CONSTITUTING “KNOWLEDGE”; TO CREATE NEW SECTION 10 91-8-105, MISSISSIPPI CODE OF 1972, TO CREATE DEFAULT AND MANDATORY RULES; TO CREATE NEW SECTION 91-8-106, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE APPLICATION OF COMMON LAW AND PRINCIPLES OF EQUITY; TO CREATE NEW SECTION 91-8-107, MISSISSIPPI CODE OF 1972, TO PRESCRIBE GOVERNING LAW; TO CREATE NEW SECTION 15 91-8-108, MISSISSIPPI CODE OF 1972, TO DELINEATE THE PRINCIPAL PLACE OF ADMINISTRATION; TO CREATE NEW SECTION 91-8-109, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR NOTICE AND WAIVER THEREOF; TO CREATE NEW SECTION 91-8-110, MISSISSIPPI CODE OF 1972, TO SPECIFY QUALIFIED BENEFICIARIES; TO CREATE NEW SECTION 20 91-8-111, MISSISSIPPI CODE OF 1972, TO AUTHORIZE NONJUDICIAL SETTLEMENT AGREEMENTS; TO CREATE NEW SECTION 91-8-112, MISSISSIPPI 22 CODE OF 1972, TO PROVIDE RULES OF CONSTRUCTION; TO CREATE NEW SECTION 91-8-201, MISSISSIPPI CODE OF 1972, TO SPECIFY THE ROLE OF THE COURT; TO CREATE NEW SECTION 91-8-202, MISSISSIPPI CODE OF 1972, TO SPECIFY JURISDICTION; TO CREATE NEW SECTION 91-8-203, MISSISSIPPI CODE OF 1972, TO DEFINE SUBJECT-MATTER JURISDICTION; TO CREATE NEW SECTION 91-8-204, MISSISSIPPI CODE OF 1972, TO PRESCRIBE VENUE; TO CREATE NEW SECTION 91-8-205, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR JUDICIAL ACCOUNTINGS AND SETTLEMENTS; TO CREATE NEW SECTION 91-8-301, MISSISSIPPI CODE OF 1972, TO SPECIFY WHEN REPRESENTATION IS BINDING; TO CREATE NEW SECTION 91-8-302, MISSISSIPPI CODE OF 1972, TO PROVIDE WHEN THE HOLDER MAY BIND OTHERS; TO CREATE NEW SECTION 91-8-303, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR REPRESENTATION BY FIDUCIARIES AND PARENTS; TO CREATE NEW SECTION 91-8-304, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR REPRESENTATION BY PERSONS WITH SIMILAR INTERESTS; TO CREATE NEW SECTION 91-8-305, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR APPOINTMENT OF REPRESENTATIVES; TO CREATE NEW SECTION 91-8-401, MISSISSIPPI CODE OF 1972, TO PROVIDE METHODS FOR CREATING TRUSTS; TO CREATE NEW SECTION 91-8-402, MISSISSIPPI CODE OF 1972, TO SPECIFY REQUIREMENTS; TO CREATE NEW SECTION 91-8-403, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR FOREIGN TRUSTS; TO CREATE NEW SECTION 43 91-8-404, MISSISSIPPI CODE OF 1972, TO REQUIRE A LAWFUL PURPOSE; TO CREATE NEW SECTION 91-8-405, MISSISSIPPI CODE OF 1972, TO ALLOW COURT SELECTION OF A CHARITABLE PURPOSE; TO CREATE NEW SECTION 91-8-406, MISSISSIPPI CODE OF 1972, TO VOID A TRUST CREATED UNDER DURESS; TO CREATE NEW SECTION 91-8-407, MISSISSIPPI CODE OF 1972, TO ALLOW AN ORAL TRUST; TO CREATE NEW SECTION 91-8-408, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR TRUSTS FOR ANIMALS; TO CREATE NEW SECTION 91-8-409, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR NONCHARITABLE TRUSTS LACKING A DISCERNABLE BENEFICIARY; TO CREATE NEW SECTION 91-8-410, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR MODIFICATION OR TERMINATION OF TRUSTS; TO CREATE NEW SECTION 54 91-8-411, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR MODIFICATION OR TERMINATION OF NONCHARITABLE IRREVOCABLE TRUSTS BY CONSENT; TO CREATE NEW SECTION 91-8-412, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR MODIFICATION OR TERMINATION DUE TO UNFORESEEN CIRCUMSTANCES; TO CREATE NEW SECTION 91-8-413, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR INTERPRETATION ACCORDING TO THE SETTLOR’S INTENT; TO CREATE NEW SECTION 91-8-414, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR MODIFICATION OR TERMINATION OF AN UNECONOMIC TRUST; TO CREATE NEW SECTION 91-8-415, MISSISSIPPI CODE OF 1972, TO ALLOW REFORMATION TO CORRECT MISTAKES; TO CREATE NEW SECTION 91-8-416, MISSISSIPPI CODE OF 1972, TO ALLOW MODIFICATION TO OBTAIN TAX OBJECTIVES; TO CREATE NEW SECTION 91-8-417, MISSISSIPPI CODE OF1972, TO ALLOW COMBINATION AND DIVISION OF TRUSTS; TO CREATE NEW SECTION 91-8-601, MISSISSIPPI CODE OF 1972, TO SPECIFY REQUIRED CAPACITY; TO CREATE NEW SECTION 91-8-602, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR REVOCATION OR AMENDMENT OF REVOCABLE TRUST; TO CREATE NEW SECTION 91-8-603, MISSISSIPPI CODE OF 1972, TO PROVIDE SETTLOR’S POWERS; TO CREATE NEW SECTION 91-8-604, MISSISSIPPI CODE OF 1972, TO PLACE A LIMITATION ON AN ACTION TO CONTEST VALIDITY; TO CREATE NEW SECTION 91-8-701, MISSISSIPPI CODE OF 1972, TO ALLOW ACCEPTANCE OR DECLINE OF TRUSTEESHIP; TO CREATE NEW SECTION 91-8-702, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR A TRUSTEE’S BOND; TO CREATE NEW SECTION 91-8-703, MISSISSIPPI CODE 77 OF 1972, TO PROVIDE FOR COTRUSTEES; TO CREATE NEW SECTION 91-8-704, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR VACANCIES AND APPOINTMENTS; TO CREATE NEW SECTION 91-8-705, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR RESIGNATION OF TRUSTEES; TO CREATE NEW SECTION 91-8-706, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR REMOVAL OF A TRUSTEE; TO CREATE NEW SECTION 91-8-707, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR DELIVERY OF PROPERTY BY A FORMER TRUSTEE; TO CREATE NEW SECTION 91-8-708, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE COMPENSATION OF TRUSTEE, TRUST ADVISORS AND TRUST PROTECTORS; TO CREATE NEW SECTION 91-8-709, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR REIMBURSEMENT; TO CREATE NEW SECTION 91-8-710, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR EXCLUDED FIDUCIARIES OF DIRECTED TRUSTS; TO CREATE NEW SECTION 91-8-711, MISSISSIPPI CODE OF 1972, TO ALLOW A FIDUCIARY TO ACCEPT OR DECLINE SERVING A DIRECTED TRUST; TO CREATE NEW SECTION 91-8-712, MISSISSIPPI CODE OF 1972, TO PROVIDE THE FIDUCIARY’S BOND FOR A DIRECTED TRUST; TO CREATE NEW SECTION 91-8-713, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR A VACANCY IN A DIRECTED TRUST; TO CREATE NEW SECTION 91-8-714, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE RESIGNATION OF THE FIDUCIARY OF A DIRECTED TRUST; TO CREATE NEW SECTION 91-8-715, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE REMOVAL OF A FIDUCIARY OF A DIRECTED TRUST; TO CREATE NEW SECTION 91-8-801, MISSISSIPPI CODE OF 1972, TO SPECIFY THE DUTY OF A TRUST ADMINISTRATOR; TO CREATE NEW SECTION 91-8-802, MISSISSIPPI CODE OF 1972, TO REQUIRE THE DUTY OF LOYALTY; TO CREATE NEW SECTION 91-8-803, MISSISSIPPI CODE OF 1972, TO REQUIRE IMPARTIALITY; TO CREATE NEW SECTION 91-8-804, MISSISSIPPI CODE OF 1972, TO REQUIRE PRUDENCE; TO CREATE NEW SECTION 91-8-805, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR PAYMENT OF COSTS; TO CREATE NEW SECTION 91-8-806, MISSISSIPPI CODE OF 1972, TO REQUIRE THE TRUSTEE’S USE OF SPECIAL SKILLS; TO CREATE NEW SECTION 91-8-807, MISSISSIPPI CODE OF 1972, TO ALLOW DELEGATION BY A TRUSTEE; TO CREATE NEW SECTION 91-8-808, MISSISSIPPI CODE OF 1972, TO SPECIFY WHEN A SETTLOR HAS THE POWER TO DIRECT; TO CREATE NEW SECTION 91-8-809, MISSISSIPPI CODE OF 1972, TO REQUIRE CONTROL AND PROTECTION OF TRUST PROPERTY; TO CREATE NEW SECTION 91-8-810, MISSISSIPPI CODE OF 1972, TO REQUIRE RECORDKEEPING AND IDENTIFICATION OF TRUST PROPERTY; TO CREATE NEW SECTION 91-8-811, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR ENFORCEMENT AND DEFENSE OF CLAIMS; TO CREATE NEW SECTION 91-8-812, MISSISSIPPI CODE OF 1972, TO REQUIRE COLLECTION OF PROPERTY; TO CREATE NEW SECTION 91-8-813, MISSISSIPPI CODE OF 1972, TO IMPOSE A DUTY TO INFORM AND REPORT; TO CREATE NEW SECTION 91-8-814, MISSISSIPPI CODE OF 1972, TO IMPOSE STANDARDS ON THE EXERCISE OF DISCRETIONARY POWERS; TO CREATE NEW SECTION 91-8-815, MISSISSIPPI CODE OF 1972, TO SPECIFY THE GENERAL POWERS OF A TRUSTEE; TO CREATE NEW SECTION 91-8-816, MISSISSIPPI CODE OF 1972, TO SPECIFY THE SPECIFIC POWERS OF A TRUSTEE; TO CREATE NEW SECTION 91-8-817, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR DISTRIBUTION UPON TERMINATION; TO CREATE NEW SECTION 91-8-901, MISSISSIPPI CODE OF 1972, TO INCORPORATE THE PRUDENT INVESTOR ACT BY REFERENCE; TO CREATE NEW SECTION 91-8-1001, MISSISSIPPI CODE OF 1972, TO PROVIDE REMEDIES FOR BREACH OF TRUST; TO CREATE NEW SECTION 91-8-1002, MISSISSIPPI CODE OF 1972, TO PROVIDE DAMAGES FOR BREACH OF TRUST; TO CREATE NEW SECTION 91-8-1003, MISSISSIPPI CODE OF 1972, TO ELIMINATE DAMAGES IN ABSENCE OF BREACH; TO CREATE NEW SECTION 91-8-1004, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR ATTORNEY’S FEES AND COSTS; TO CREATE NEW SECTION 91-8-1005, MISSISSIPPI CODE OF 1972, TO ENACT A LIMITATION OF ACTION AGAINST A TRUSTEE; TO CREATE NEW SECTION 91-8-1006, MISSISSIPPI CODE OF 1972, TO CREATE IMMUNITY FOR RELIANCE ON THE TRUST INSTRUMENT; TO CREATE NEW SECTION 91-8-1007, MISSISSIPPI CODE OF 1972, TO CREATE IMMUNITY FOR CERTAIN OTHER EVENTS AFFECTING ADMINISTRATION; TO CREATE NEW SECTION 91-8-1008,  MISSISSIPPI CODE OF 1972, TO PROVIDE FOR A TRUSTEE’S EXCULPATION; TO CREATE NEW SECTION 91-8-1009, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR A BENEFICIARY’S CONSENT, RELEASE OR RATIFICATION; TO CREATE NEW SECTION 91-8-1010, MISSISSIPPI CODE OF 1972, TO LIMIT A TRUSTEE’S PERSONAL LIABILITY; TO CREATE NEW SECTION 91-8-1011, MISSISSIPPI CODE OF 1972, TO SPECIFY A TRUSTEE’S INTEREST AS A GENERAL PARTNER; TO CREATE NEW SECTION 91-8-1012, MISSISSIPPI CODE OF 1972, TO PROVIDE PROTECTION FOR A PERSON DEALING WITH A 148 TRUSTEE; TO CREATE NEW SECTION 91-8-1013, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR CERTIFICATION OF A TRUST; TO CREATE NEW SECTION 91-8-1014, MISSISSIPPI CODE OF 1972, TO ALLOW ENFORCEMENT  OF A NO-CONTEST CLAUSE; TO CREATE NEW SECTION 91-8-1101, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR UNIFORMITY IN APPLICATION AND CONSTRUCTION; TO CREATE NEW SECTION 91-8-1102, MISSISSIPPI CODE OF 1972, TO SPECIFY THE RELATION OF THE ACT TO THE ELECTRONIC SIGNATURES ACT; TO CREATE NEW SECTION 91-8-1103, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR SEVERABILITY; TO CREATE NEW SECTION 91-8-1106, MISSISSIPPI CODE OF 1972, TO MAKE TRANSITION PROVISIONS; TO CREATE NEW SECTION 91-8-1107, MISSISSIPPI CODE OF 1972, TO PLACE LIMITATIONS ON SETTLORS OF IRREVOCABLE TRUSTS; TO CREATE NEW SECTION 91-8-1108, MISSISSIPPI CODE OF 1972, TO PROVIDE FACTORS TO BE CONSIDERED IN CERTAIN CHALLENGES; TO CREATE NEW SECTION 91-8-1109, MISSISSIPPI CODE OF 1972, TO PROVIDE SPECIAL PROTECTIONS FOR TRUSTS FOR THE DISABLED; TO CREATE NEW SECTION 91-8-1201, MISSISSIPPI CODE OF 1972, TO SPECIFY THE POWERS OF 165 TRUST ADVISORS AND TRUST PROTECTORS; TO CREATE NEW SECTION 91-8-1202, MISSISSIPPI CODE OF 1972, TO SPECIFY THE FIDUCIARY DUTY OF TRUST ADVISORS AND TRUST PROTECTORS; TO CREATE NEW SECTION  91-8-1203, MISSISSIPPI CODE OF 1972, TO SUBJECT TRUST ADVISORS AND PROTECTORS TO COURT JURISDICTION; TO CREATE NEW SECTION 91-8-1204,  MISSISSIPPI CODE OF 1972, TO LIMIT THE DUTY OF REVIEW OF AN  EXCLUDED FIDUCIARY; TO CREATE NEW SECTION 91-8-1205, MISSISSIPPI CODE OF 1972, TO SPECIFY THE FIDUCIARY’S LIABILITY; TO CREATE NEW SECTION 91-8-1206, MISSISSIPPI CODE OF 1972, TO CREATE A LIMITATION OF LIABILITY FOR A TRUST ADVISOR OR PROTECTOR; TO REPEAL SECTIONS 91-9-1, 91-9-2, 91-9-3, 91-9-5, 91-9-7 AND 91-9-9, MISSISSIPPI CODE OF 1972, WHICH CONSTITUTE TITLE 91, CHAPTER 9, ARTICLE 1, TRUSTS – GENERAL PROVISIONS; TO REPEAL SECTIONS 91-9-101, 91-9-103, 91-9-105, 91-9-107, 91-9-109, 91-9-111, 91-9-113, 91-9-115, 91-9-117 AND 91-9-119, MISSISSIPPI CODE OF 1972, WHICH CONSTITUTE TITLE 91, CHAPTER 9, ARTICLE 3, UNIFORM 181 TRUSTEE POWERS; TO REPEAL SECTIONS 91-9-201, 91-9-203, 91-9-205, 91-9-207, 91-2-209, 91-9-211, 91-9-213, MISSISSIPPI CODE OF 1972, WHICH CONSTITUTE TITLE 91, CHAPTER 9, ARTICLE 5, RESIGNATION AND SUCCESSION OF TRUSTEES; TO REPEAL SECTIONS 91-9-301, 91-9-303 AND 91-9-305, MISSISSIPPI CODE OF 1972, WHICH CONSTITUTE TITLE 91, CHAPTER 9, ARTICLE 7, REMOVAL OF TRUSTEES; AND FOR RELATED 187 PURPOSES.

In essence, this new law repeals our old trust code and replaces it with the uniform law, which is a change that I think is timely and necessary. Many regional and national financial institutions are trustees or trust advisors, and this law will make the law more clear and certain for them, with the positive effect that less litigation will be necessary to interpret and enforce trust provisions.

How Much to Pay Your Witnesses

July 15, 2014 § 6 Comments

Of course you can’t pay witnesses for their testimony (except experts, sortof), but you are required by MRCP 45(c)(1) to pay “to a non-party witness at the time of service [of a subpoena] the fee for one day’s attendance plus mileage allowed by law.” That payment may be waived by court order for indigence, and is not required of the State of Mississippi.

The witness fee is set out in MCA 25-7-47, which has provided that the witness is to be paid $1.50 per day and five cents per mile for travel to and from the courthouse “by the nearest route,” plus tolls and ferriage.

The usual practice in this district up to now for those who have not ignored the requirement is to issue the subpoena and tender a check for some nominal sum, like $2.00, to local witnesses.

The cost of witnesses, however, has gone up significantly, effective July 1, 2014. SB 2676, amends MCA 25-7-47, as follows:

Witnesses in the county, circuit * * *, chancery and justice courts shall receive * * * the same pay per day as is set by the board of supervisors under Section 25-7-61 for service as a juror plus mileage as authorized under Section 25-3-41 for each mile going to and returning from the courthouse to their homes by the nearest route, and such tolls and ferriages as they may actually be obliged to pay; but * * * a charge shall not be made for mileage except that traveled in this state. * * * Witnesses in all other cases shall receive the same compensation as they receive before the circuit court. It shall not be necessary to issue subpoenas for police officers as witnesses in city cases of cities having a population of more than ten thousand (10,000) according to the federal census of 1930; and * * * officers, when used as witnesses in * * * cases, are not to be allowed witness fees. A law enforcement officer who has retired or otherwise ceased employment as a law enforcement officer but who is required to testify in any case based on matters that arose during the course of the officer’s employment shall be entitled to the same compensation and expenses from the former employing law enforcement agency as an officer on active duty under the same circumstances.

So let’s try to figure this out:

  • First, you have to look at MCA 25-7-61 to determine what “pay per day as is set by the board of supervisors … for service as a juror …” To arrive at that figure, you’ll have to consult with your board of supervisors, because the statute allows them to set the fee between $25 and $40 per day.
  • Second, you will have to read and decipher what is the allowable mileage reimbursement under MCA 25-3-41. Good luck with that. If you conclude as I do that the applicable rate under MCA 25-7-41 is the county reimbursement rate, then MCA 25-3-41(2) applies, and it allows a mere twenty cents per mile unless the board of supervisors has adopted the mileage reimbursement rate allowable for state employees.

Bottom line is that your per diem cost to obtain a witness’s attendance has gone up from $1.50 to somewhere around $25 – $40 per day of attendance. That does not include mileage, which must be computed in addition to the per diem. I doubt that there are any boards of supervisors clinging to the antiquated twenty-cents mileage rate. The state mileage reimbursement rate now is $.565 per mile. If your supervisors have adopted the prevailing state rate, then you are looking at paying your witnesses more than 10 1/2 times more than the current five cents per mile statutory rate.

Hypothetically, then, if your non-party witness has to travel 17 miles to court, and your board of supervisors has adopted $40 a day for jury pay and mileage at the state rate, and there are no ferries or tolls to pay, then you now have to tender that witness $59.21 ($40 per diem, plus 34 mi. x $.565) each day for attendance. The cost before the amendment would have been a mere $3.20 ($1.50 per diem, plus 34 mi. x $.05).

For lawyers who are going to observe the requirement of R45, this should have a dampening effect on the vexatious practice of issuing subpoenas for 30 witnesses for trial and calling only four. It should also discourage those lawyers who like to subpoena a witness aligned with the other side, and then to keep that witness waiting in the hall two, three or four days, only calling him or her for a few brief questions at the end of the trial. Both unprofessional practices will now be more expensive than one could reasonably justify to a paying client.

As I said, these new rates are in effect now, and have been since July 1, 2014.

NOTE: In East v. East, 775 So. 2d 741, 747 (Miss. Ct. App. 2000), the COA ruled that a witness who had not been tendered payment per R45 had not been properly served. Who gets to raise the issue? In Roberts, it was the witness himself who brought up the matter via ex parte communication with the judge, which the COA did not find improper. No doubt the affected witness may always raise the non-payment issue, but may a party? Stay tuned.

Thanks to Anderson for the cite to Roberts in a comment to this post.

Clarifying Readoption

July 14, 2014 § Leave a comment

Readoption — the process of recognizing foreign adoptions in Mississippi — has become a more frequent phenomenon as parents wanting to adopt have found adoptable children in Russia, China, Thailand, and other countries.

Quite often readopting parents who have run a financially and emotionally exhausting gauntlet of obstacles in a foreign country return to Mississippi only to be confronted with similar hurdles in their home state.

SB 2180 amends the adoption statutes to allow a more streamlined procedure for readoption, and even includes forms for use in chancery court. It clarifies various nuances of readoption, including that only one readoption, in either this state or another state, is necessary, and that any subsequent adoption of the child would be a standard adoption, and not another readoption. The new provisions go into effect July 1, 2014.

If you handle readoptions you need to become familiar with these new provisions.

Chukfi Ahila Bok

July 11, 2014 § Leave a comment

Chukfi Ahila Bok, Choctaw for Dancing Rabbit Creek, was the subject of the “Scene in Mississippi” earlier today. I actually thought someone would guess it right away, since Dancing Rabbit Creek is arguably the most famous creek in Mississippi.

The photos show the National Historical Landmark site of the Choctaw gathering place where the infamous Treaty of Dancing Rabbit Creek was imposed on the Choctaw people in 1830. The site, in SW Noxubee County, is on the US National Register of Historic places, and has been designated a Mississippi landmark. It is now used primarily as a cemetery. The bottom photo should have been a clue, since it shows Choctaw stickball implements on the tombstone.

Under the treaty, the Choctaws agreed to give up their remaining fertile lands in Mississippi and Alabama in return for scrub lands in Oklahoma. Any Choctaws who chose to remain were granted citizenship, the first Native Americans granted that privilege.

This monument is at the site.

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The site is not easy to find. You will need a good map or GPS. There’s no cell phone service, so the Google Maps app on your cell phone will not get you there. Also, after several miles of paved roads, you’ll find yourself on dirt roads, some of which pass through bottoms that look like they would wash out in a hard rain, so you might prefer to get there in a truck or SUV.

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