Author Archives: Bill Kellum

Posted on by

When bringing an action against a city government, the Plaintiff may demand an immediate remedy before the case is finalized.  For example, to prevent a city government from taking an action, or in other instances, force a city to take action, one may file a Petition for Preliminary Injunction in connection with the underlying lawsuit.  According to the The Mississippi Rules of Civil Procedure Advisory Committee:

“The purpose of a preliminary injunction is to provide injunctive relief until the merits
of the case are resolved. Preliminary injunctions cannot be granted without notice. A party
moving for preliminary injunctive relief pursuant to Rule 65(a) must demonstrate that “(i)
there exists a substantial likelihood that the [movant] will prevail on the merits; (ii) the
injunction is necessary to prevent irreparable harm; (iii) the threatened injury to the [movant] outweighs the harm an injunction might do to the [opposing party]; and (iv) granting a preliminary injunction is consistent with the public interest.” See Littleton v. McAdams, 60 So. 3d 169, 171 (Miss. 2011). Motions for preliminary injunctions are within the trial court’s discretion. See City of Durant v. Humphreys County Mem’l Hosp., 587 So. 2d 244, 250 (Miss. 1991).

Posted on by

Upon being awarded judgment by a Mississippi court, the prevailing party may petition to examine the Defendant’s assets

Mississippi Code Ann 13-1-261 provides:

(1) To aid in the satisfaction of a judgment of more than One Hundred Dollars ($ 100.00), the judgment creditor may examine the judgment debtor, his books, papers or documents, upon any matter relating to his property as provided in Sections 13-1-261 through 13-1-271; except that no single judgment creditor may cause a judgment debtor to submit to examination under this section more than once in a period of six (6) months.

(2) In addition to the method of examination prescribed in subsection (1), the judgment creditor may, in the alternative, utilize the discovery procedures set forth in the Mississippi Rules of Civil Procedure for the purpose of examining the judgment debtor.

Posted on by

Miss. R. Civ. P. 45 governs how to respond to subpoenas for documents in Mississippi. 

(2) Subpoenas for Production or Inspection. (A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or to permit inspection of premises need not appear in person at the place of production or inspection unless commanded by the subpoena to appear for deposition, hearing or trial. Unless for good cause shown the court shortens the time, a subpoena for production or inspection shall allow not less than ten days for the person upon whom it is served to comply with the subpoena. A copy of all such subpoenas shall be served immediately upon each party in accordance with Rule 5. A subpoena commanding production or inspection will be subject to the provisions of Rule 26(d). (B) The person to whom the subpoena is directed may, within ten days after the service thereof or on or before the time specified in the subpoena for compliance, if such time is less than ten days after service, serve upon the party serving the subpoena written objection to inspection or copying of any or all of the designated materials, or to inspection of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the material except pursuant to an order of the court from which the subpoena was issued. The party serving the subpoena may, if objection has been made, move at any time upon notice to the person served for an order to compel the production or inspection.(C) The court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (i) quash or modify the subpoena if it is unreasonable or oppressive, or (ii) condition the denial of the motion upon the advance by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things. (e) Duties in Responding to Subpoena. (1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand. (2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim. 

Posted on by

Miss. R. Civ. P. 45 governs the quashing of subpoenas in Mississippi. 

(1) In General. (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it (i) fails to allow reasonable time for compliance, (ii) requires disclosure of privileged or other protected matter and no exception or waiver applies, (iii) designates an improper place for examination, or (iv) subjects a person to undue burden or expense. (B) If a subpoena (i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or (ii) requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of any party, the court may order appearance or production only upon specified conditions. – 

Posted on by

Miss. R. Civ. P. 45 governs the service of subpoenas in Mississippi: 

(c) Service. (1) A subpoena may be served by a sheriff, or by his deputy, or by any other person who is not a party and is not less than 18 years of age, and his return endorsed thereon shall be prima facie proof of service, or the person served may acknowledge service in writing on the subpoena. Service of the subpoena shall be executed upon the witness personally. Except when excused by the court upon a showing of indigence, the party causing the subpoena to issue shall tender to a non-party witness at the time of service the fee for one day’s attendance plus mileage allowed by law. When the subpoena is issued on behalf of the State of Mississippi or an officer or agency thereof, fees and mileage need not be tendered in advance. (2) Proof of service shall be made by filing with the clerk of the court from which the subpoena was issued a statement certified by the person who made the service, setting forth the date and manner of service, the county in which it was served, the names of the persons served, and the name, address and telephone number of the person making the service. – See more at: http://www.rcfp.org/mississippi-privilege-compendium/v-procedures-issuing-and-contesting-subpoenas#sthash.hOCxKsrL.dpuf

Posted on by

In Mississippi, if you are served with a subpoena, the following rules apply:

A subpoena that fails to allow reasonable time for compliance is subject to a motion to quash. Miss. R. Civ. Proc. 45(d)(1)(A) (amended eff 7/1/13).

Subpoena for Production or Inspection – 10 Days for Compliance

Unless for good cause shown the court shortens the time, a subpoena for production or inspection shall allow not less than ten days for the person upon whom it is served to comply with the subpoena. Miss. R. Civ. Proc. 45(d)(2)(A) (amended eff 7/1/13).

Subpoena for Production or Inspection – Immediate Service on Other Parties

A copy of any subpoena for production or inspection must be served immediately upon each party and is subject to the provisions of Rule 26(d). Miss. R. Civ. Proc. 45(d)(2)(A) (amended eff 7/1/13).

Objection to Subpoena for Production or Inspection – Within 10 Days

The person to whom the subpoena is directed may, within ten days after the service thereof or on or before the time specified in the subpoena for compliance, if such time is less than ten days after service, serve upon the party serving the subpoena written objection to inspection or copying of any or all of the designated materials, or to inspection of the premises. Miss. R. Civ. Proc. 45(d)(2)(B) (amended eff 7/1/13).

Motion to Quash – Timely Made

A motion to quash must be “timely” made. Miss. R. Civ. Proc. 45(d)(1)(A) (amended eff 7/1/13).

Notice of Deposition – Reasonable Notice

A party desiring to take the deposition of any person upon oral examination must give reasonable notice in writing to every other party to the action. Miss. R. Civ. Proc. 30(b).

Posted on by
Factors for spousal support or alimony in Mississippi:
In Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993), the Mississippi Supreme Court outlined twelve factors that must be considered by a chancellor in arriving at findings and entering a judgment for alimony. These factors are:

1. the income and expenses of the parties;
2. the health and earning capacity of the parties;
3. the needs of each party;
4. the obligations and assets of each party;
5. the length of the marriage;
6. the presence and absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide child care;
7. the age of the parties;
8. the standard of living of the parties, both during the marriage and at the time of the support determination;
9. the tax consequences of the spousal support order;
10. any fault or misconduct;
11. wasteful dissipation of the assets by either party;
12. any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support. 

Posted on by

The factors that the court must consider in awarding child custody are set out in Albright vs. Albright, 437 So.2d 1003, 1005 (Miss. 1983). 

The factors are:

  1. Age, health and gender of the child.
  2. Parent having continuity of care prior to the separation.
  3. Parent with best parenting skills and willingness and capacity to provide primary child care.
  4. Employment of the parent and responsibilities of that employment.
  5. Physical and mental health and age of the parent.
  6. Emotional ties of parent to child.
  7. Moral fitness of the parent.
  8. Home, school and coomunity record of the child.
  9. Preference of the child at age sufficient to express a preference.
  10. Stability of parent’s home environment and employment of each parent.
  11. Relative financial situation of the parents.
  12. Difference in religion of the parents.
  13. Differences in personal values of the parents.
  14. Differences in lifestyle of the parents.
  15. Other factors relevant to the parent-child relationship.
Posted on by

Mississippi Rules of Civil Procedure provides as follows:

(c) Service.
(1) A subpoena may be served by a sheriff, or by his deputy, or by any other person
who is not a party and is not less than 18 years of age, and his return endorsed thereon shall be prima facie proof of service, or the person served may acknowledge service in writing on the subpoena. Service of the subpoena shall be executed upon the witness personally.Except when excused by the court upon a showing of indigence, the party causing the subpoena to issue shall tender to a non-party witness at the time of service the fee for one day’s attendance plus mileage allowed by law. When the subpoena is issued on behalf of the State of Mississippi or an officer or agency thereof, fees and mileage need not be tendered in advance.

Posted on by

§ 99-5-27. Bail agent may arrest and surrender principal; return of defendant out on bond

(2)
(a) A bail agent, at any time, may surrender the principal to any law enforcement agency or in open court in discharge of the bail agent’s liability on the principal’s bond if the law enforcement agency that was involved in setting the original bond approves of such surrender, to the State of Mississippi and any of its courts and at any time may arrest and transport its principal anywhere or may authorize another to do so, may be assisted by any law enforcement agency or its agents anywhere upon request of bail and may receive any information available to law enforcement or the courts pertaining to the principal for the purpose of safe surrender or for any reasonable cause in order to safely return the principal to the custody of law enforcement and the court.
(b) A bail agent, at any time, may arrest its principal anywhere or authorize another to do so for the purpose of surrender of the principal on bail bond. Failure of the sheriff or chief of police or his jailer, any law enforcement agency or its agents or the court to accept surrender by a bail agent shall relieve the bail agent of any liability on the principal’s bond, and the bond shall be void.
(3) A bail agent, at any time, upon request by the defendant or others on behalf of the defendant, may privately interview the defendant to obtain information to help with surrender before posting any bail bond on behalf of the defendant. All licensed bail agents shall have equal access to jails or detention facilities for the purpose of such interviews, the posting of bail bonds and the surrender of the principal.
(4) Upon surrender, the court, after full review of the defendant and the pending charges, in open court, may discharge the prisoner on his giving new bail, but if he does not give new bail, he shall be detained in jail.