A Bluewater Bravo

February 9, 2016 § 1 Comment

The old rule that, if a trial judge in a ruling adopts one party’s proposed findings of fact and conclusions of law verbatim, her ruling is subject to less deference and greater scrutiny was abolished several years ago in the Bluewater Logistics case. I’ve posted about it here and here.

Now the COA has joined the party, so to speak, in the case of Carlson v. Brabham, decided January 19, 2016, in which the chancellor had adopted one party’s proposed findings of fact and conclusions of law verbatim. Although it was not expressly assigned as error, Judge Griffis took the opportunity to make this pronouncement:

¶12. Further, the supreme court has held that appellate courts must “apply the familiar abuse-of-discretion standard to a trial judge’s factual findings, even where the judge adopts verbatim a party’s proposed findings of fact.” Bluewater Logistics LLC v. Williford, 55 So. 3d 148, 157 (¶32) (Miss. 2011).

Hear, hear!

Early Look at 2016 Judicial Elections

February 8, 2016 § 2 Comments

It’s early to be looking at 2016 judicial elections, since voting is not until November, and the qualification deadline is in May. So far, though, some interesting races are shaping up:

In the MSSC, District 1, Place 3, incumbent Justice Jim Kitchens faces a challenge from COA Judge Kenny Griffis. The district includes, from west to east, Bolivar, Sunflower, Washington, Humphreys, Holmes, Sharkey, Yazoo, Issaquena, Warren, Claiborne, Jefferson, Copiah, Hinds, Rankin, Madison, Leake, Scott, Neshoba, Newton, Noxubee, Kemper, and Lauderdale Counties. Demographically, those counties are some of the richest and poorest, most and least populous, most Democratic and least Republican, and least Democratic and most Republican in the state.

[Some changes made since publication based on comments]

Newly-appointed Justice Jimmy Maxwell, elevated from the COA, is unopposed in Place 2, District 3, which is Justice David Chandler’s former post.

Circuit Judge James T. Kitchens and Columbus attorney John Brady qualified for Justice Lamar’s open Place 1. District 3 is all of north Mississippi bordering on the north of District 1.

COA Judge Ceola James is unopposed so far in District 2, Place 2.

In COA District 3, Place 1, newly-appointed Judge Jack Wilson will face Madison County Court Judge Ed Hannan. District 3 includes Clay, Oktibbeha, Lowndes, part of Attala, Winston, Noxubee, part of Leake, Neshoba, Kemper, part of Madison, Rankin, Scott, Newton, Lauderdale, Clarke, Jasper, Smith, part of Jones, and part of Wayne Counties.

COA Judge David Ishee has no opponent yet in District 5, Place 2.

In Chancery Court District 1 (Alcorn, Tishomingo, Prentiss, Union, Lee, Itawamba, Lee, Pontotoc, and Monroe Counties), Place 4, T. K. Moffett of Tupelo has qualified to run for the seat formerly held by the deceased Chancellor Talmadge Littlejohn.

And in Chancery Court District 20 (Rankin County), Place 1, John McLaurin and Jim Nix will face each other in November.

The next regularly-scheduled judicial election year for trial judges is 2018, but all of the appointments that were made in 2015 will make for an unusually busy judicial election cycle this year, since all of the appointees are required to stand for election at the next regular general election.

“Quote Unquote”

February 5, 2016 § 1 Comment

“To bargain freedom for security is the devil’s bargain. Having made the bargain, one enjoys neither freedom nor security.”  — Gerry Spence

“If all that Americans want is security, they can go to prison. They’ll have enough to eat, a bed and a roof over their heads. But if an American wants to preserve his dignity and his equality as a human being, he must not bow his neck to any dictatorial government.”  —  Dwight D. Eisenhower

“A ship is safe in harbor, but that’s not what ships are for.”  — William Greenough Thayer Shedd

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Greenlee to COA

February 4, 2016 § Leave a comment

Well, I missed this completely, but back on January 19, Gov. Bryant appointed former US Attorney Jim Greenlee to fill Judge Maxwell’s spot on the COA.

Here’s a link to the press release on Jane’s Blog. Proof positive that I need to check in with Jane more often.

Directed Verdict vs. Involuntary Dismissal

February 2, 2016 § 1 Comment

After the plaintiff or petitioner has rested in a chancery court bench trial, the defendant may move to dismiss on the ground that the plaintiff or petitioner has proven no right to relief. That is an involuntary dismissal, pursuant to MRCP 41(b), commonly referred to as a “41(b) motion.”

In a jury trial, a party may move for a directed verdict at the close of the other party’s case. That is a motion for directed verdict per MRCP 50(a).

The two are entirely different creatures. A 41(b) motion has no place in a jury trial, and a motion for directed verdict has no place in a bench trial.

The distinction was noted in the recent COA case, Carlson v. Brabham, handed down January 19, 2016. Judge Griffis explained:

¶10. “In a non-jury trial, such as this case, the appropriate motion is not a motion for [a] directed verdict pursuant to Mississippi Rule of Civil Procedure 50; instead, the correct motion is a motion for [an] involuntary dismissal pursuant to Mississippi Rule of Civil Procedure 41(b).” Partlow v. McDonald, 877 So. 2d 414, 416 (¶7) (Miss. Ct. App. 2003) (citation omitted) (citing Buelow v. Glidewell, 757 So. 2d 216, 220 (¶12) (Miss. 2000)). In this case, Brabham filed a Rule 50 motion for a directed verdict, rather than a Rule 41(b) involuntary-dismissal motion.

¶11. The Mississippi Supreme Court has held that in situations such as this, an appellate court must:

[C]onsider th[e] appeal based on the correct standard of review, which under Rule 41(b) is different than the standard of review applicable to a motion for a directed verdict under Rule 50. In considering a motion for [an] involuntary dismissal under Rule 41(b), the trial court should consider the evidence fairly, as distinguished from in the light most favorable to the plaintiff, and the [trial court] should dismiss the case if it would find for the defendant. On appeal, [an appellate court] must apply the substantial evidence/manifest error standard to an appeal of a grant or denial of a motion to dismiss pursuant to [Rule 41(b)].

Id. at 416-17 (¶7) (internal quotations and citations omitted) (citing Miss. Real Estate Comm’n v. Geico Fin. Servs. Inc., 602 So. 2d 1155, 1156 n.1 (Miss. 1992)).

As I have pointed out here before, if you proceed under the wrong rule in chancery, you are inviting either of two unappetizing results: (a) the chancellor may overrule your motion because there is no such thing as directed verdict in a chancery bench trial; or (b) the chancellor may apply the wrong standard to the proof, and you could find yourself boomeranged back to chancery on a remand that you created by your own inattention to the distinction.

 

 

Some Random Thoughts on Phelps

February 1, 2016 § 4 Comments

Last week we talked about the COA’s decision in a will contest, and how the decision lays out the analysis that is required in a testamentary capacity/undue influence case.

As promised here are a few reflections on the case:

  • When parties ask you to represent them in a will contest, it’s important to understand how the burden of proof operates. As was the case here, it was not enough to establish that a confidential relationship existed. There must be much more. And you can expect the other side to counter with strong proof in most cases.
  • Also, physical frailty, illness, and even inability to manage one’s own business, do not establish testamentary incapacity as long as the testator understands the nature and effect of making a will, the natural objects or persons to receive his or her bounty and their relationship to him or her, and is able to determine how to dispose of his or her estate.
  • This case also illustrates how critically important it is for the subscribing witness to understand his or her role. The subscribing witness is the first-line observer of the testator’s capacity.
  • Cordell, the attorney, deserves posthumous kudos for his handling of Dorothy’s execution of the will. He allowed only her and the other subscribing witness into the room, satisfied himself that Dorothy had testamentary capacity, and that there was no undue influence.
  • Also, Dorothy sought independent advice from Cordell, who was unconnected with Henry III. This helped overcome a finding of undue influence.
  • Just because a confidential relationship exists, there is not necessarily undue influence. And even if there is a presumption of undue influence, it can be overcome by clear and convincing evidence of the factors set out in the Grantham case.

You should treat the execution of a will in your office with some solemnity and care. It is, after all, a serious occasion, oftentimes coming after long and careful deliberation by the testator. No one but the subscribing witnesses and testator should be present. Ask questions that will help you and the witnesses determine testamentary capacity: does she know her assets and their worth; does she know who her natural heirs are and how this will affect not only them but also her prior wills; how dependent is she in handling her affairs; has anyone pressured her to make this disposition? And so on. You should admonish the subscribing witnesses not to sign unless they are satisfied that the testator has capacity and is acting freely and voluntarily. You might want to make a few notes to refresh later recollection: who brought her to your office; time of day; who was present in the room when the will was signed, etc. You might even make a checklist to help you memory later. In my experience, testimony from the law office where the will was signed is often the deciding factor.

Reprise: 8.05’s are the Gold Standard of Financial Proof

January 29, 2016 § 1 Comment

Reprise replays posts from the past that you might find useful today.

8.05 FINANCIAL STATEMENTS: “THE GOLD STANDARD” OF PROOF

August 22, 2012 § 4 Comments

This just in: Rule 8.05 financial statements are the “gold standard” of financial proof in chancery court. That’s what Judge Fair said in the COA case of Collins v. Collins, decided August 21, 2012, beginning at ¶34:

This case highlights the role of the income and asset disclosures required by Rule 8.05 of the Uniform Chancery Court Rules. Rule 8.05 mandates prescribed forms for such disclosure and also requires:

(B) Copies of the preceding year’s Federal and State Income Tax returns, in full form as filed, or copies of W-2s if the return has not yet been filed.

(C) A general statement of the providing party describing employment history and earnings from the inception of the marriage or from the date of divorce, whichever is applicable.

¶35. Compliance with the rule is mandatory, for obvious reasons. If both parties put down identical values for marital property and properly disclose their income and expenses, supported by the required federal and state tax returns and earnings history, a court can adjudicate property and money issues expeditiously and in accord with the law. Noting the importance of Rule 8.05 disclosures, in Trim v. Trim, 33 So. 3d 471 (Miss. 2010), the supreme court has ruled that filing a substantially false Rule 8.05 financial disclosure statement constitutes fraud on the court.

¶36. Though there may be contrary misinterpretation of some decisions, which properly [fn 1] apply only when conflicts between forms conflict,1 Rule 8.05 disclosures should not be evidence of last resort. Rather, they should be the gold standard, requiring other evidence only when there are legitimate disputes as to valuation. [Emphasis added]

[fn 1] “Chancellors may rely on these statements to value property when the parties fail to offer any other evidence as to value.” Kimbrough v. Kimbrough, 76 So. 3d 715, 721 (¶28) (Miss. App. 2011) (quoting Studdard v. Studdard, 894 So. 2d 615, 618-19 (Miss. Ct. App. 2004)). “To the extent that further evidence would have aided the chancellor in [his] decision, the fault lies with the parties and not the chancellor.” Messer v. Messer, 850 So. 2d 161, 170 (¶43) (Miss. Ct. App. 2003).

Yes, 8.05’s are the gold standard of proof to a chancellor trying to root enough information out of the record to make a decision about equitable distribution and alimony. But some lawyers treat them like fool’s gold. Their 8.05’s do not include tax returns, figures are contradictory and incomplete, valuations are lacking, and there is no employment history.

In Collins, Mr. Collins included no tax returns, and he contradicted himself in his testimony, admitting that his 8.05 was incorrect and inaccurate. As a result, the chancellor relied on her own best judgment and calculated what she believed to be his income, resulting in an impressive $1,300 a month child support obligation.

The chancellor also accepted Ms. Collins’ valuations of real property in the absence of proof offered by Mr. Collins. Ouch.

Some parties offer tables of personal property with some pretty incredibe valuations. In one case I had the husband wanted the riding lawn mower, which he valued at $800. The wife — I am not kidding — valued it at $15,000. Husband testified that he had bought it several years before for $1,600 at Sears. I found his valuation more credible. What was the wife thinking when she tagged the item with that value? Did she think I’d bite on that? Where was her attorney when that table was prepared before trial.

Many lawyers and their clients adopt the extremely unhelpful tactic of valuing everything at near zero that they expect to get, and assigning astronomical values to everything the other party expects to get. For example, wife has the green couch, and she wants to keep it, so she values it at $50; husband opines that it is worth $2,750, and he does not want it. Give me a break.

Most people can not afford to hire a personal property appraiser to value their near-worthless pile of stuff. So lawyers toss it into the chancellor’s lap to flip a coin and make a call as to what the values might be. That’s a cop-out. Lawyers should be more professional than that.

If you try many financial-issue cases in chancery, I encourage you to read Collins. It’s the latest illustration of how parties shoot themselves painfully in the foot when they do a less-than-adequate job in prepping their 8.05’s, and it just might give you some ideas how an on-the-ball attorney can help his or her client avoid that kind of disaster.

Testamentary Capacity, Undue Influence, and the Burden of Proof

January 27, 2016 § 4 Comments

A will contest can present a bewildering forest of legal issues that can entangle the best lawyers. So, any time we can find some clarification, it’s worth taking a break to look it over.

In the COA case of Estate of Phelps: Terry et al. v. Phelps, et al., handed down December 8, 2015, the court dealt with an appeal from a classic will challenge based on a claim of both lack of testamentary capacity and undue influence.

The chancellor held that the testator, Dorothy Phelps, did have testamentary capacity. He also ruled that there was a confidential relationship between Dorothy and her son, Henry III, but that Henry had rebutted the presumption of undue influence by clear and convincing evidence. The contestants, Henry III’s siblings Irene Phelps Terry and Mary Phelps Domin, appealed.

The COA affirmed. Since this is a pretty useful recitation of the law, I am going to quote at length from the opinion. Judge Lee wrote for the court:

A. Testamentary Capacity

¶14. In their first issue, Irene and Vicki claim the chancellor erred in finding that Dorothy possessed testamentary capacity.

¶15. “For a will to be valid, the testator must possess testamentary capacity.” Noblin v. Burgess, 54 So. 3d 282, 291 (¶32) (Miss. Ct. App. 2010). “For testamentary capacity to be present, the testator must be of ‘sound and disposing mind’ at the time of the will’s execution.” Id. (quoting Miss. Code Ann. § 91-5-1 (Rev. 2004)). “At that time, the testator must: ‘understand and appreciate the nature and effect of his act of making a will, the natural objects or persons to receive his bounty and their relation to him, and be able to determine what disposition he desires to make of his property.’” Id. (quoting In re Estate of Mask, 703 So. 2d 852, 856 (¶17) (Miss. 1997)).

¶16. Our supreme court has explained the burden of proof on the issue of testamentary capacity is as follows:

At trial, the will’s proponents carry the burden of proof, which they meet by the offering and receipt into evidence of the will and the record of probate. A prima facie case is made by the proponent solely by this proof. Afterwards, although the burden of proof remains on the proponents, the burden of going forward with proof of testamentary incapacity shifts to the contestants, who must overcome the prima facie case. The proponents may then present rebuttal proof if necessary. In short, the proponents must prove the testator’s testamentary capacity by a preponderance of the evidence.

In re Estate of Rutland, 24 So. 3d 347, 351 (¶10) (Miss. Ct. App. 2009) (quoting In re Estate of Edwards, 520 So. 2d 1370, 1372 (Miss. 1988)).

¶17. In the instant case, an objection to probate was entered prior to the will being admitted to probate.

¶18. Henry III made his prima facie case of the will’s validity through the testimony of Kay Ousley Hyer, Cordell’s [the lawyer who prepared the will] legal secretary at the time Dorothy’s will was executed. Although Hyer had no recollection of the events on February 10, 1988, Hyer testified that she would not have signed the will’s attestation clause if she felt, through her interactions with Dorothy on February 10, 1988, that Dorothy was not of sound and disposing mind and memory. When asked whether Cordell would have signed the attestation clause, Hyer stated: “He would not have affixed his signature if [Dorothy was] not of sound mind and body.”

¶19. To support their argument on this issue, both Irene and Vicki testified that Dorothy lacked testamentary capacity because of her grief over Henry II’s death and because of other medical issues.

¶20. However, “[t]he mere fact that someone is too ill to handle his affairs does not in and of itself render him . . . void of testamentary capacity.” In re Estate of Laughter, 23 So. 3d 1055, 1061 (¶22) (Miss. 2009). Furthermore, we recognize that “[t]he testimony of subscribing witnesses receives greater weight than the testimony of witnesses who were not present at the will’s execution.” In re Estate of McQueen, 918 So. 2d 864, 871 (¶30) (Miss. Ct. App. 2005) (citing Edwards, 520 So. 2d at 1373). Therefore, Hyer’s testimony is given more weight than the testimony of Irene and Vicki, who were not present at the will’s execution, did not interact with Dorothy on February 10, 1988, and have an interest in the outcome of this case.

¶21. Even if Irene and Vicki presented sufficient evidence to overcome Henry III’s prima facie case, we note that Henry III presented rebuttal evidence through the testimony of Flora Collins. Collins worked for Dorothy for approximately twenty-six years and interacted with Dorothy on an almost daily basis. Collins stated that Dorothy appeared to be herself, “like she’s always been,” after returning home from the hospital. Collins also stated that Dorothy told her about the will on two separate occasions: “She told me that I have a will and they’re going to be surprised who I’m going to leave everything to.” Additionally, we note that the will appears reflective of Dorothy’s intent in prior codicils. This issue is without merit.

B. Undue Influence

¶22. In their second issue, Irene and Vicki claim Henry III did not present sufficient evidence to overcome the presumption of undue influence.

1. Presumption of Undue Influence

¶23. A presumption of undue influence arises where: (1) a confidential relationship existed between the testator and a beneficiary, and (2) there existed suspicious circumstances—such as the testator’s mental infirmity—or the beneficiary in the confidential relationship was actively involved in some way with preparing or executing the will. In re Last Will & Testament of Bowling, 155 So. 3d 907, 910-11 (¶16) (Miss. Ct. App. 2014) (citing Croft v. Alder, 237 Miss. 713, 115 So. 2d 683, 688 (1959)).

¶24. It is conceded that there was a confidential relationship between Dorothy and Henry III. However, the fact, alone, that a confidential relationship existed between Henry III and Dorothy is not sufficient to give rise to the presumption of undue influence. See In re Estate of Grantham, 609 So. 2d 1220, 1224 (Miss. 1992).

¶25. Nevertheless, in In re Estate of Harris, 539 So. 2d 1040 (Miss. 1989), our supreme court held that the presumption was raised with very little besides a confidential relationship. In re Last Will & Testament of Smith, 722 So. 2d 606, 612 (¶18) (Miss. 1998). In Harris, “the beneficiary simply found an attorney at the testator’s request and drove the testator to the attorney’s office.” Id.

¶26. The facts in the instant case are distinguishable from those in Harris. Henry III did not contact the attorney prior to the execution of the will. Nor did Henry III have knowledge that he was driving Dorothy to Hollandale for the purpose of executing a will. Henry III merely drove Dorothy to Hollandale on February 10, 1988, so she could “tend to some business.”

¶27. Furthermore, Henry III was not present during the execution of the will. Hyer testified as to Cordell’s usual practice with respect to allowing other people in the room during the execution of a will. Hyer stated: “I cannot recall a time that he would do that. It was always just the individual . . . It would be just between [Cordell and] that individual.”

¶28. In finding a presumption of undue influence, the chancellor noted Dorothy’s health and age. The chancellor also noted that after the will’s execution, the will was placed in a safety deposit box in both Dorothy and Henry III’s names; therefore, Henry III had the opportunity to view the will after its execution. The circumstances listed by the chancellor had nothing to do with the preparation and execution of the will or with Dorothy’s independent action.

¶29. The fact, alone, that a confidential relationship existed between Henry III and Dorothy is not sufficient to give rise to the presumption of undue influence. See Grantham, 609 So.2d at 1224. Henry III was not actively involved in preparing or executing the will, nor were there suspicious circumstances that negate independent action. See Dean v. Kavanaugh, 920 So. 2d 528, 537 (¶46) (Miss. Ct. App. 2006). As such, the chancellor erred in finding that there was a presumption of undue influence. However, because we ultimately reach the same conclusion, this issue is without merit.

2. Overcoming the Presumption of Undue Influence

¶30. Even if there was a presumption of undue influence, Henry III presented sufficient evidence to overcome such a presumption.

¶31. Our supreme court has stated that:

[T]he presumption of undue influence is overcome if the beneficiary has proven by clear and convincing evidence:

(1) Good faith on the part of the beneficiary;

(2) the testator’s full knowledge and deliberation of his actions and their consequences; and

(3) independent consent and action on the part of the testator.

Grantham, 609 So. 2d at 1224 (citing Mullins v. Ratcliff, 515 So. 2d 1183 (Miss. 1987)).

¶32. In the instant case, the record contains sufficient evidence to satisfy each of these three prongs. With respect to the good-faith requirement, the chancellor considered the following factors: (a) the identity of the initiating party seeking preparation of the will; (b) the place of the execution of the will and in whose presence; (c) the fee paid; (d) by whom it was paid; and (e) the secrecy or openness surrounding the execution of the will. In re Estate of Holmes, 961 So. 2d 674, 682 (¶25) (Miss. 2007). The chancellor found that Dorothy initiated the preparation of the will, the terms of the will were discussed between Dorothy and Cordell outside the presence of others, and the will was executed before two attesting witnesses.[Fn 3] Although there was no evidence of the fee paid or who paid the fee, we agree there was clear and convincing evidence that Henry III acted in good faith.

[Fn3] See Rogers v. Pleasant, 729 So. 2d 192, 194 (¶9) (Miss. 1998).

¶33. With respect to the second requirement—that Dorothy had full knowledge and deliberation of the consequences of her actions—the chancellor considered the following factors: (a) whether Dorothy was aware of her total assets and their worth; (b) whether Dorothy understood who her natural inheritors were and how her action would legally affect prior wills; (c) whether Dorothy knew nonrelative beneficiaries would be included or excluded; and (d) whether Dorothy knew who controlled her finances and how dependent Dorothy was on anyone handling her finances. Holmes, 961 So. 2d at 684 (¶39). The chancellor found that the will gave each daughter not only a life estate in 320 acres of land but also exclusive control and possession of the income generated by that land, which was evidence that Dorothy was aware of her total assets. The chancellor also found that the revocation clause along with specific devises and bequests in the will was evidence that Dorothy understood who her natural inheritors were and how her action would legally affect prior wills. It is clear from prior documents that Dorothy never had any intention of including nonrelative beneficiaries. Finally, the chancellor found that there was evidence that Dorothy knew who controlled her finances. We agree there was clear and convincing evidence that Dorothy had full knowledge and deliberation of the consequences of her actions.

¶34. With respect to the last requirement, the chancellor found that Dorothy exhibited independent consent and action when she obtained independent advice from Cordell, who was a competent person, disconnected from Henry III, and devoted wholly to Dorothy’s interests. Holmes, 961 So. 2d at 680 (¶18). We agree there was clear and convincing evidence that Dorothy exhibited independent consent and action.

¶35. Assuming there was a presumption of undue influence, the presumption was overcome by clear and convincing evidence that Henry III acted in good faith, Dorothy had full knowledge and deliberation of the consequences of her actions, and Dorothy exhibited independent consent and action when she executed her will. This issue is without merit.

Some comments on this case next week.

A CD Pitfall

January 26, 2016 § 5 Comments

A 2015 COA case reveals a feature of CD’s that could cause problems for some of your clients, and could impact estates you handle.

In 1990, Audie Bell English and several other relatives purchased a $75,000 CD at Sunburst Bank, which later was acquired by Regions Bank. The CD automatically renewed every 6 months at the then-prevailing rate. Under its terms, any of the purchasers could cash out the CD without participation of the others, but to do so the original CD was required to be presented. There was a policy in place, however, for issuance of a replacement original in the event that the initial original certificate became lost.

All of the other purchasers died, and Audie Bell, the sole survivor, presented the original certificate to Regions for payment. The bank refused to honor it, however, because it could not locate any records, which it took to mean that the CD had already been redeemed.

After Audie Bell died, the executrix of her estate filed suit against Regions for breach of contract, seeking damages in the face value of the $75,000 CD, plus a little more than $247,000 in accrued interest.

Both the estate and the bank filed motions for summary judgment.

The chancellor granted Regions summary judgment, relying on a New York case that held, in essence, that there is a legal presumption of payment arising out of the fact of a long delay between the right to enforce an obligation and the attempt to do so. He found no genuine issue of material fact, and that Regions was entitled to a judgment as a matter of law.

In the case of Estate of English v. Regions Bank, decided August 25, 2015, the COA reversed, noting that Mississippi did not recognize the same presumption as in the New York case. The court remanded for a hearing on the fact issue whether the CD had been redeemed, or whether it should be paid.

It should be emphasized here that what was reversed here was the finding that there was no genuine issue of material fact. The chancellor may well resolve the fact issue against the estate at trial, but that will depend on presentation of evidence by both sides.

What I think merits your attention is that, more and more, it seems to me, the rules of banking are tilting in favor of the banks and against “small” depositors [to a bank, $75,000 is a piddling deposit; to most of us, it is a fortune]. You might want to factor this in when advising your clients about record-keeping and protecting assets. Some of your may have some comments about how your clients can protect themselves from an adverse outcome in a scenario such as this, and how to avoid litigation. I just think most of us believe that when we have in hand an original negotiable instrument such as a CD, we expect it to be honored, and that the burden of its own record-keeping should be on the bank.

Chancery Court and the Family Feud

January 25, 2016 § 3 Comments

You will not find it in the Mississippi Constitution or in any statute, but chancery courts in Mississippi have long exercised original subject-matter jurisdiction over family feuds that may not exactly invoke any legally cognizable cause of action.

You can find a recent example in the COA’s McGriggs v. McGriggs, et al., decided December 15, 2015. In that case, after Alfred McGriggs died, one faction of his family buried him on family land in Claiborne County. Soon after, another faction filed a petition to have the body exhumed and reinterred somewhere else, alleging that (a) the burial violated the cemetery laws of the state, and (b) having a body buried on the land impaired its value for the survivors, of whom there are apparently many.

You can read Judge Wilson’s opinion for yourself. It will enlighten you about the legality of burial on private property and who gets to make the call about where and how to dispose of a dead body. Oh, and the appellant and the appellees were all pro se. [Spoiler alert: the COA affirmed the chancellor’s decision to deny the petition.]

What I want to inspect here is how chancellors handle these family disputes.

In McGriggs, the chancellor was confronted with pro se litigants who insisted on trying to air out decades-old family disagreements, misunderstandings, and slights. With the patience of a saint, the chancellor gave them wide latitude to air their grievances, reeling them back in when they went too far afield.

That really is the key in handling a case like this: to allow the airing of grievances without letting it turn into a rabbit hunt.

I once had a suit styled “Complaint for Partition of Real Property,” called for trial. Other than the fact that it included no deraignment of title, the pleading was professional-looking and set out all of the required averments. When I called the case, the two named plaintiffs answered for themselves. They were proceeding pro se. When I called the defendant, he was pro se also. I told the plaintiffs they could present their case, and they asked me what they were supposed to do. I explained that I could not help either side, but that they could call witnesses of they liked. One of the plaintiffs took the stand and explained that the defendant had moved into momma’s house after she died, and the rest of the family insisted that he move out or pay rent. He left in a huff, but when he did he dismantled the fireplace and took it with him. They wanted him to replace it or pay for a new one. The defendant did not have any cross-examination, and the plaintiffs said that was all the proof they had. I dismissed the case and pointed out this was really a lawsuit that should have been brought in county court. There was no way I could stretch this into a partition suit. But before they were shown out of chancery, the family was able to make a record of how irresponsible and low-down was the defendant.

In another case, brothers had been fighting for years over a pond that straddled their property lines. When the case came before me in 2007, I noticed that this was their fourth trip to court. All three previous cases had been settled by agreed orders, which apparently did not fix the real problem. When the lawyers came in with an agreed order this time, I told them I would not approve their settlement, but that we would give them both a chance to be heard. In two days of testimony we heard a little about a drainage problem with the pond, but we heard a lot about: rude behavior; how one brother did not attend the funeral or even send a card when the other’s son died; name-calling; hurt feelings; and a litany of petty grievances that had piled up into a family dispute. I ordered some remedial work on the drainage system and enjoined putting up of signs and other provocative acts. They have not been back since. I don’t know whether the airing of grievances helped, but I like to think it did.

Sometimes what people need is just the chance to tell someone what a no-good so and so the other party is. If it keeps people from killing and maiming each other to make that point, then I suppose that’s a legitimate function of chancery court. As McGriggs illustrates, though, it requires the chancellor to have the wisdom and insight to understand that, and the patience to let it proceed.  

 

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