Holcomb Dunbar Opens New Jackson Office


Jonathan Masters Jackson MS office

Holcomb Dunbar Attorneys is pleased to announce the opening of its new Jackson, Mississippi office expanding its services to the firm’s regional and national clients throughout central and south Mississippi. 

“We have served the Jackson, Mississippi area for many years.  By opening this new office, however, we hope to better serve our central and south Mississippi clients from the State’s capital.”

Holcomb Dunbar is a full-service, regional law firm offering services in Mississippi, Tennessee and Alabama.  The firm focuses on representing individuals and companies in the courtroom.  In addition to its robust civil litigation practice, the firm provides a full range of services in commercial transactions and litigation, real estate, family and domestic matters, workers compensation, product’s liability, professional liability, white collar criminal defense and mass-tort defense.

In addition, Holcomb Dunbar is a member of TAGlaw, a worldwide alliance of law firms.  With 140 member firms based


in nearly 100 countries, TAGlaw is the premier global network of independent law firms whose success is driven by broad, deep, local relationships all over the world.  The TAGlaw alliance enables Holcomb Dunbar to use its local expertise to deliver highly effective legal solutions while drawing upon the collective wisdom and experience of other member firms within the United States and around the world as needed.

Origins of Legal Contingency Agreements

Contingency Fee Agreements

No fee unless we recover for you” … “The no fee promise” … “No charge unless we win!”

We see and hear these and similar ads daily. But where did these arrangements come from? And how did they develop into the wide-spread use that we see and hear constantly?  Thanks to the Professor Peter Karsen’s 1998 article, Enabling the Poor to Have Their Day in Court: The Sanctioning of Contingency Free Contracts, a History to 1940, we have a bit of an answer.

The typical legal contingency fee agreement is a contract in which the fees are payable only if there is a favorable result.  Legal contingency fee agreements are typically calculated as a percentage of the client’s recovery through a settlement or trial verdict.  And if there is no settlement or verdict, the attorney and client recovery nothing.

Contingency fee-like agreements trace their roots to thirteenth century England where the practice of third parties “financing” litigation, called champerty, was deemed illegal.  The prohibition originally sought to stop wealthy individuals from financing litigation against competitors in an effort to take their land and property to increase their own wealth through a proxy. These prohibitions, however, had the ultimate effect of limiting the lower classes access to the courts.  Indeed, without the means to pay an attorney the poor where without a means to effectively enforce their rights.

Even today, English courts manage lawyer funded litigation differently than the U.S.  English solicitors typically enter what known as a “conditional fee agreement.”  If the case is won, the solicitor may recover a nominal hourly fee, plus a “success fee” that is be no greater than 100 percent of the nominal fee.

From the beginning, attitudes in America were quite different.  Indeed, America’s founders had the radical notion that the criminally accused had a right to counsel which was preserved in the Constitution’s Sixth Amendment. England didn’t adopt a similar right to counsel for another 50 years.

The belief in a right to an attorney and access to courts filtered into the civil justice system as well.  This notion pushed American courts to reject England’s “loser pays” system removing the Sword of Damocles over a losing party of potentially having to pay the winner’s attorney’s fees. And gradually, the same sentiment advanced the use and acceptance of contingency agreements.

In 1813, Pennsylvania Justice Hugh Henry Brackenridge wrote “parties not monied” sometimes “stipulate for something out of what was recoverable,” with attorneys “taking what are called contingency fees.”  Though the practice was still not accepted by all courts and attorneys of the day, notable attorneys such as Henry Clay and Daniel Webster worked under contingency agreements.

Reported cases from across the country in the early 1800s illustrate America’s growing acceptance of contingency agreements though still tinged with some skepticism.  For example, in 1823 arguing before the Kentucky Supreme Court an attorney in Rust v. LaRue, noted “[a client] may not have anything else to give, and without the aid of the matter in this contest, he can never sue for his right, not having otherwise the means to employ counsel…” By the mid-1800s these agreements continued to gain approval.  InLytle v. State, Arkansas Justice Scott in 1857 expressed the general sentiment spreading across the county that “rights are nothing without the means of enforcing them.”  And, around the same time, state legislatures were redefining the broad scope of champerty to provide for contingency fee agreements.

And by 1875, U.S. Supreme Court Justice Morrison Waite in Write v. Tebbitsnoted the wide-spread use and acceptance stating that contingency fee agreements ‘legitimate and honorable.’

Today, such contracts are common and permeate the legal community.  While still not practical or available to all matters, for better or worse, they remain entrenched in our legal system.


Can you sue yourself?

In Utah, you apparently can.  As the 2015 opinion summarizes: “Barbara Bagley, acting in different capacities, appears as both the appellants and the appellee in this case. Bagley represents the estate of Bradley M. Vom Baur. She also appears on her own behalf as Vom Baur’s heir. We refer to these two roles collectively as Plaintiffs. Bagley is also the defendant and alleged tortfeasor (Defendant).”

Did you get that?  Here’s another quote to clear things up a bit, “Bagley  finds herself on both sides of this dispute because not only is she her husband’s heir and the personal representative of his estate, she is also the defendant driver whose negligence allegedly caused the accident.”

Let me help — Ms. Bagley was apparently the negligent driver that caused her husband’s death.  She then filed a wrongful death action against herself as her husband’s heir.

The lower determined that the language of the wrongful death and survival action statutes prevents a tortfeasor from seeking recovery from herself and that the plaintiffs therefore could not bring suit against the defendant.   On appeal however, Utah Court of Appeals found “that the plain language of the statutes does not bar such suits” and sent it back for trial.

I wonder which table Ms Bagley sat at the trial!

Read the full opinion.

Can iPhone users sue Apple for charges to app developers? Supreme Court to decide

U.S. SUPREME COURTCan iPhone users sue Apple for charges to app developers? Supreme Court to decideBY DEBRA CASSENS WEISSPOSTED JUNE 18, 2018, 3:06 PM CDT    inShare    Dedi Grigoroiu/Shutterstock.com.The U.S. Supreme Court agreed Monday to decide whether people who buy iPhone apps can sue Apple over 30 percent commissions charged to app developers on sales.Four iPhone users are seeking triple damages in a would-be class action that alleges Apple violated antitrust law by monopolizing the app market, report SCOTUSblog, Bloomberg News, the Wall Street Journal and CNet. A federal court had ruled that consumers can’t sue because they weren’t directly overcharged, but the San Francisco-based 9th U.S. Circuit Court of Appeals reversed in January 2017.The 9th Circuit had reasoned that consumers could sue because they bought the apps through the Apple App Store. Apple’s cert petition argues the 9th Circuit erred under a 1977 Supreme Court decision, Illinois Brick Co. v. Illinois, which held that only direct purchasers can sue under antitrust law.The federal government had argued, in response to a request for its views, that the 9th Circuit had erred.The St. Louis-based 8th U.S. Circuit Court of Appeals had followed Illinois Brick in a 1998 decision. The court had held consumers could not sue Ticketmaster for an alleged monopoly over ticket distribution because the direct victims would be concert venues. The circuit split is cited in Apple’s cert petition.The case is Apple v. Pepper.

Source: Can iPhone users sue Apple for charges to app developers? Supreme Court to decide

McDonalds Sued over its Cheese Sales

Here’s a new class action lawsuit for you to ponder.

According to the lawsuit, for years McDonald’s sold a Quarter Pounder, Double Quarter Pounder and the “with cheese” options as four separate menu items.

At some point, however, McDonald’s “ceased separately displaying these products for purchase on menus.” Instead, the lawsuit claims, in McDonald’s updated menu only the Quarter Pounder with cheese and Double Quarter Pounder with cheese were listed.

“A customer who wanted a Quarter Pounder was required to order and pay for a Quarter Pounder with cheese, which was given to the customer without cheese.” “Similarly, when a customer wanted a Double Quarter Pounder, the customer was required to order and pay for a Double Quarter Pounder with cheese, which was given to the customer without cheese. This practice was also used when a customer wanted a value meal that included either a Quarter Pounder or a Double Quarter Pounder.”

The lawsuit further charges that customers “continue to be overcharged for these products, by being forced to pay for two slices of cheese, which they do not want, order or receive, to be able to purchase their desired product.”  This in turn, according to the complaint, is allowing McDonald’s to be “unjustly enriched by these practices because it receives payment for cheese it does not deliver to its customers.”

The named plaintiffs, to gather their evidence, ordered the offending quarter pounders without cheese and pasted in their receipts in to the complaint, and sure enough, the quarter pounders’ cost exactly the same, cheese or naught!

I bet this would not happen at IHOb.


Anonymous Sperm Donor not a Legal Parent

In a case of first impression in Mississippi, the Supreme Court was asked to addressed what rights, if any, an anonymous sperm donor has in a child conceived of his sperm. The Court concluded that an anonymous sperm donor is not a legal parent whose rights must be terminated.  In short, the court founds that “… there is no legal or policy basis to find that an anonymous sperm donor is a parent in this specific context.”


Here’s a full copy the April 5, 2018 opinion:



NO. 2016-CA-01504-SCT









¶1. Christina Strickland and Kimberly Day were a same-sex couple legally married in Massachusetts in 2009—a marriage that later was recognized legally in Mississippi. At the time of their marriage, the couple resided in Mississippi. A year later, the newlywed couple sought to bring a child into their family through the use of artificial insemination (AI) of spermfromananonymousdonor. Kimberlyservedasthegestationalmotherandeventually

gave birth to Z.S.1 in 2011. Z.S. was born in Mississippi.
¶2. The couple separated in 2013. And eventually, in October 2016, the Rankin County Chancery Court entered a final judgment of divorce. In the judgment, the chancery court found, among other things, that Christina acted in loco parentis to Z.S., but that Christina was not Z.S.’s legal parent. Central to the chancery court’s decision was the finding that the anonymous sperm donor had parental rights that must be terminated and thus precluded Christina from being Z.S.’s legal parent. Christina appeals to this Court.
¶3. This case presents an issue of first impression. We never before have addressed what rights, if any, an anonymous sperm donor has in a child conceived of his sperm. Accordingly, we must determine whether the chancery court erred in finding that the rights of the anonymous sperm donor precluded a finding that Christina was Z.S.’s legal parent. After review of the record and the relevant law, we find that the chancery court erred in this finding. First, an anonymous sperm donor is not a legal parent whose rights must be terminated. And second, the doctrine of equitable estoppel precludes Kimberly from challenging Christina’s legal parentage of Z.S. And so we reverse the findings of the chancery court and remand the case for a custody determination in a manner that is consistent with this opinion.


¶4. Christina and Kimberly first began a romantic relationship in 1999. Later, while still unmarried, the couple decided to adopt a child. After going through the adoption process,

1 BecauseZ.S.wasaminoratthetime,initialswillbeusedtoprotecthisanonymity. 2

the couple adopted a child named E.J.,2 finalized in 2007. Kimberly alone served as the adoptive parent because Mississippi law precluded same-sex couples from adopting jointly. In 2009, Kimberly and Christina were married in Massachusetts. Kimberly took Christina’s last name.

¶5. In 2010, the newlywed couple decided to add to their family through the use of assisted reproductive technology3 (ART)—specifically, AI of sperm from an anonymous donor. Both Kimberly and Christina considered, and were evaluated to determine, which one of them should carry the child. And after testing and consultation with a fertility clinic, the couple decided that Kimberly would serve as the gestational mother, and that they first would attempt in vitro fertilization4 (IVF) with Kimberly’s ova.

¶6. They searched for sperm, eventually choosing sperm from a Maryland sperm bank. The name of the anonymous donor is unknown and he was identified only as a number—“Donor No. 2687.” Kimberly signed an acknowledgment agreeing that she would “never seek to identify the donor.” The acknowledgment further stipulated that the donor never would be advised of Kimberly’s identity. In the clinic paperwork, Kimberly was recognized as a married woman, and Christina was identified as her spouse. Both women

2 Because E.J. was a minor at the time, initials will be used to protect his anonymity.

3 ART refers to various practices and procedures beyond AI, including in vitro fertilization, intracytoplasmic sperm injection, egg donation, and surrogacy, which provide individuals the opportunity to conceive children other than through sexual intercourse.

4 IVF refers to a method of fertilizing a human ovum outside of the body. K. Anderson, L. Anderson, and W. Glanze, IVF, Mosby’s Medical, Nursing, & Allied Health Dictionary 842 (4th ed. 1994).


signed an acknowledgment stating that they were:

voluntarily undergoing, individually and as a couple, treatment . . . in order to conceive a child through this treatment and that [they] acknowledged [their] natural parentage of any child born to [them] through this technique.

Christina testified that she was involved in and supportive through every step of the conception and pregnancy.
¶7. As for the birth of Z.S., Christina testified that the couple planned on traveling to Massachusetts to have the child, so that both she and Kimberly could be listed as parents on the birth certificate. But on April 12, 2011, six weeks before her due date, Kimberly gave birth to Z.S. via a cesarean section in a Mississippi hospital. The reason Z.S. was born in Mississippi, and not in Massachusetts, is disputed. Kimberly claimed it was because she did not want Christina on the birth certificate,5 while on the other hand, Christina claimed it was due to the unforseen, emergency cesarean section. Nevertheless, because Z.S. was born in Mississippi, Kimberly’s name was the only name placed on his birth certificate.

¶8. As it relates to child rearing, Christina testified that, as a family unit, Kimberly and she raised their two children as coparents. And during the first year of Z.S.’s life, Christina stayed home with him while Kimberly worked full time. Christina further testified that the children—both Z.S. and E.J.—share a close child-parent bond with her, and they call her “Mom.”

¶9. In January 2013, Christina and Kimberly separated. Following the separation, Christina continued to visit both children. She also paid child support, medical, and daycare

5 Mississippi law at the time precluded both members of a same-sex couple from being listed on a birth certificate. See Miss. Code Ann. § 41-57-14 (Rev. 2013).


expenses for Z.S.
¶10. On August 13, 2015, while still married to Christina, Kimberly married a second spouse. Christina then filed for divorce in the Harrison County Chancery Court on August 31, 2015. On November 16, 2015, Kimberly filed a motion for declaratory judgment and complaint for divorce in the Rankin County Circuit Court. In that motion, Kimberly sought a declaration that her second marriage was valid and that her first marriage was dissolved. Christina then filed her answer and counterclaim for divorce in which she sought legal and physical custody of the children, and to be named a parent of Z.S. The Harrison County and Rankin County cases were consolidated in Rankin County. And on May 17, 2016, an order was entered declaring Christina’s and Kimberly’s marriage valid, and Kimberly’s remarriage void.
¶11. On September 27, 2016, Kimberly and Christina filed a consent and stipulation agreeing that Z.S. was born during their marriage, that they jointly would pay all school expenses for Z.S., and that Kimberly would retain physical and legal custody of E.J. Kimberly and Christina agreed to allow the chancery court to decide custody, visitation, and child support as to Z.S., child support and visitation of E.J., and Christina’s parentage of Z.S. ¶12. A hearing was held on September 27, 2016, and a final judgment of divorce was entered on October 18, 2016. In the final judgment, the chancery court made various findings. Relevant to this appeal, the chancery court ordered Christina to pay child support for both children, and held that Z.S. was born during a valid marriage. But the chancery court held that Z.S. was “a child born during the marriage, not of the marriage,” and so both


parties were not considered parents. The chancery court found that the anonymous sperm donor constituted “an absent father,” and even though the donor might never be identified, the donor’s legal parentage precluded a determination that Christina was Z.S.’s legal parent. The chancery court concluded that Christina had acted in loco parentis6 to Z.S. and awarded her visitation rights.

¶13. On October 21, 2016, three days after entry of the final judgment, Christina filed her timely notice of appeal.


¶14. A chancellor’s findings will not be disturbed on review unless he abused his discretion, was manifestly wrong, or made a finding which was clearly erroneous. Bank of Mississippi v. Hollingsworth, 609 So. 2d 422, 424 (Miss. 1992). A chancellor’s conclusions of law are reviewed de novo. Consolidated Pipe & Supply Co. v. Colter, 753 So. 2d 958, 961 (Miss. 1999). Because the issues here raise questions of whether a chancellor correctly applied the law, we review this case de novo.

I. Parental Rights and Anonymous Sperm Donors

¶15. The chancery court’s decision, finding Christina not the legal parent of Z.S., turned largely on its determination that the sperm donor was the “natural father,” whose parental


“[A] person acting in loco parentis [is] one who has assumed the status and obligations of a parent without a formal adoption.” Logan v. Logan, 730 So. 2d 1124, 1126 (Miss. 1998). A person acting in loco parentis has a right to custody of a child, but only against third persons. Farve v. Medders, 128 So. 2d 877, 879 (Miss. 1961). The custody rights of a person holding this status are inferior to the custody rights of the natural parent. Davis v. Vaughn, 126 So. 3d 33, 37 (Miss. 2013).


rights were subject to termination. On appeal, Christina argues that this finding is not supported by the evidence and is an erroneous conclusion of law. We agree.
¶16. At the outset, we are cognizant of the fact that we never before have determined what parental rights, if any, anonymous sperm donors possess in the children conceived through the use of their sperm. As such, this is an issue of first impression.

¶17. In searching our state’s existing law, the only law that even addresses AI is the disestablishment-of-paternity statute—Mississippi Code Section 93-9-10(2)(d) (Rev. 2013). And while Section 93-9-10(2)(d) does not address anonymous sperm donors’ parental rights directly, we find it useful as it illustrates the Legislature’s intent on such rights. Indeed, under Section 93-9-10(2)(d), a father cannot seek to disestablish paternity when the child was conceived by AI during the marriage to the child’s mother. Reading this provision, in light of the context before us, the logical conclusion—while not explicit—is that the Legislature never intended for an anonymous sperm donor to have parental rights in a child conceived from his sperm—irrespective of the sex of the married couple that utilized his sperm to have that child.

¶18. How, on one hand, can the law contemplate that a donor is a legal parent who must have his rights terminated, while at the same time prohibiting the nonbiological father of a child conceived through AI from disestablishing paternity? These two policies cannot co- exist. And for one to make such a logical leap effectively would say that the child has three legal parents: the mother who birthed the child, the natural father who donated his sperm, and the person who was married to the child’s mother (and is statutorily prohibited from


disestablishing paternity). Three parents—that cannot be what the Legislature intended. Indeed, even the chancery court here said that cannot be possible.
¶19. In making its determination, the chancery court seemed to place great weight on the biological connection between the anonymous sperm donor and Z.S. Yet the Supreme Court of the United States has held that “[p]arental rights do not spring full-blown from the biological connection between the parent and child. They require relationships more enduring.” Lehr v. Robertson, 463 U.S. 248, 260, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983) (quoting Cuban v. Mohammed, 441 U.S. 360, 397, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979) (Stewart, J., dissenting)) (emphasis added). In a similar vein, we too have held that a biological connection alone is not enough to establish parentage. See Griffith v. Pell, 881 So. 2d 184, 186 (Miss. 2004) (finding that a biological father does not have any paternity rights where “he fails to establish that he has had a substantial relationship with the child”). ¶20. As a broader policy consideration, we find that requiring parents of a child conceived through the use of AI to terminate parental rights of the donor would not be in the best interest of the child—to say nothing of the expense and time it would require. When children are involved, we consistently have held that “the polestar consideration . . . is the best interest and welfare of the child.” Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).

¶21. The consequences of assigning rights to donors, who do not engage in an act of procreation but provide biological material with no intention to act as a parent, would disrupt the familial relationships and expectations of Mississippians who have conceived children through the use of AI. For one, it would elevate the rights of a donor—who is a complete


stranger to the child, and likely never will be identified—over the rights of a person who has known and cared for the child. Make no mistake—affirmance here arguably would impose parentage, and all its responsibilities, on anonymous sperm donors who contribute sperm to assist families in achieving pregnancy—perhaps creating a chilling effect on sperm donation. Furthermore, it effectively would leave many children conceived through this method with one legal parent. And in the tragic situation in which a mother dies during childbirth or before a proper termination proceeding—it would leave the child an orphan. Such a notion is untenable and certainly contrary to the public policy of this state.

¶22. On appeal, Kimberly’s position is that all of the nonbiological parents of children conceived through AI should be required to terminate the sperm donor’s parental rights and then establish parentage through the adoption process. We disagree. As a practical matter, the process of requiring one under these circumstances to adopt her own child (one which she intentionally agreed to bring into the family) would be intrusive, time-consuming, and expensive. In fact, it would require: parents who use AI with anonymous sperm donation to file a petition and wait thirty days to seek a hearing; a guardian ad litem to be appointed by the court at the parents’ expense; and a hearing to be held to determine whether an unknowable sperm donor has abandoned the child. See Miss. Code Ann. § 93-15-107 (Rev. 2013).

¶23. One of the rationales behind termination statutes no doubt is to safeguard the rights of any potential parent-child relationship. Indeed, this Court has held that “[p]arents have a liberty interest, more precious than any property interest, in the care, custody, and


management of their children and families.” G.Q.A. v. Harrison Cty. Dep’t Of Human Res., 771 So. 2d 331, 335 (Miss. 2000) (citing Santosky v. Kramer, 455 U.S. at 753–54, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)). The seriousness of the action is reflected in the fact that termination of such rights requires clear and convincing evidence of the statutory grounds for termination. Chism v. Bright, 152 So. 3d 318, 322 (Miss. 2014) (citing Kramer, 455 U.S. at 754).

¶24. But with anonymous sperm donors there is no reason to protect the donor, as the donor has no intention or desire to act as a father. In reaching its conclusion in this case, the chancery court found that the donor was merely an “absent father,” but in reality, the donor is a nonexistent father. For the child could never find the donor, much less have a meaningful relationship with him. It is one thing for a child to cling to the hope of a possibility of discovering and eventually building a relationship with an absent father; it is quite another thing for a child to know that he has a natural father that he has no possibility of ever discovering, let alone having a relationship with. That is, short of perhaps a court order mandating the disclosure of the donor’s identity, it is arguably factually and legally impossible for the child ever to obtain the identity of the donor.

¶25. The impracticality and futility of applying the termination statute in this context is clear. Under Section 93-15-107, the natural father is a necessary party to such termination action, but here, or with any anonymous donor, whose identification cannot be known, compliance with the statute arguably is impossible. One cannot serve a party with no information to act upon and which likely never can be acquired.


¶26. To that end, Kimberly argues that Christina, and nonbiological parents alike, can effectuate this service though publication. To be sure, the text of the statute does allow for publication of service of a “necessary party whose address is unknown after diligent search[.]” Miss. Code Ann. § 93-15-107(1)(b) (Rev. 2013) (emphasis added.) Publication in this instance is for a party whose address is unknown, not a party whose identity is unknown. (Emphasis added). What is more, how can it be evaluated whether there was a diligent search for the party, if the party is unknown? The chancery court itself conceded that it is unlikely that the donor ever could be hailed before the court. The chancery court also conceded that this donor’s identification likely would never be known. And with an absence of identification, publication practically cannot be effectuated in every case in which a couple utilizes AI to bring a child into the family. Indeed, publication under the statute presupposes that, while one may not know the exact location of the party, one at least knows, at a minimum, the identity of the party. This is not to say that, under these circumstances, service by publication could not be accomplished; it is, however, to say that, as a matter of public policy, we find it unwise to demand that it must be accomplished.

¶27. And so, we ask, would it not be futile for the chancery court to require parties to comply with a statute the chancery court itself admits cannot be satisfied due to reasons beyond the control of the parties? Though this exact question is not before us here, we find it demonstrative of the impracticability and futility of requiring compliance with Section 93- 15-107(1)(b) in this context.

¶28. Aside from our determination that anonymous sperm donors, in general, do not


possess parental rights in the children conceived through the use of their sperm, we also find that there is no other vehicle which allows us to conclude that the anonymous sperm donor here is Z.S.’s parent. The donor was not married to the mother at the time of Z.S.’s conception or birth, he has not executed a voluntary acknowledgment of paternity, and he has not been adjudicated to be the child’s “natural” father under state law. Miss. Code Ann. § 93-9-28 (Rev. 2013).

¶29. In sum, we find that the chancery court erred in finding that an anonymous sperm donor was Z.S.’s parent whose parental rights had to be terminated. Indeed, we find that there is no legal or policy basis to find that an anonymous sperm donor is a parent in this specific context.

II. Equitable Estoppel

¶30. Christina argues that the chancery court erred in failing to apply equitable estoppel as a bar to Kimberly’s argument that Christina was not Z.S.’s legal parent. At the very core of the doctrine of equitable estoppel are “fundamental notions of justice and fair dealings.” PMZ Oil Co. v. Lucroy, 449 So. 2d 201, 206 (Miss. 1984). The doctrine applies when “there is a (1) belief and reliance on some representation; (2) a change of position as a result thereof; and (3) detriment or prejudice caused by the change of position.” B.C. Rogers Poultry Inc. v. Wedgeworth, 911 So. 2d 483, 492 (Miss. 2005). Indeed, we previously have defined equitable estoppel “as the principle by which a party is precluded from denying any material fact, induced by his words or conduct upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or


contrary assertion was allowed.” Koval v. Koval, 576 So. 2d 134, 137 (Miss. 1991) (emphasis added).
¶31. Reviewing the record before us, we find that the elements of estoppel are met here. First, the evidence in the record shows that Kimberly made numerous representations that Christina was an equal coparent to Z.S. Indeed, Kimberly, along with Christina, signed an agreement at the clinic acknowledging the couple’s joint intention to undergo the AI procedure. Additionally, after the birth of Z.S., the couple sent out birth announcements that read: “Hatched by Two Chicks. Chris[tina] and Kimberly proudly announce the birth of their son.” And the record is replete with evidence of Christina’s belief and reliance on this representation.

¶32. Second, as a result of her belief of and reliance on Kimberly’s representation, Christina clearly changed her position. For example, Christina signed an acknowledgment to undergo the AI treatment with Kimberly as “a couple,” served as Z.S.’s primary caretaker for at least the first year of the child’s life, and gave Z.S. her last name—Strickland. And lastly, the record shows that Christina suffered detriment which was caused by the change of position. That is, by changing her position in reliance on her belief that she would be an equal coparent, Christina took on all the responsibilities and rewards that accompany parenthood. To now deprive Christina of these responsibilities and rewards, and diminish her parent-child relationship with Z.S., is certainly a detriment to Christina, to say nothing of the detriment to Z.S. himself.

¶33. At the hearing, Kimberly argued that the fact that she was married to Christina at the


time was not material to her decision to have Z.S.; she was planning on having a child of her own regardless of her marital circumstances. But the evidence in the record belies this assertion. For one, Kimberly allowed Christina to take part in the process of conceiving Z.S.—even signing an acknowledgment at the clinic together. In fact, in the clinic paperwork, Kimberly was recognized as a married woman, and Christina was specifically identified as her spouse. What is more, Kimberly admitted in her testimony that the couple had discussed the possibility of Christina, and not Kimberly, carrying and having the baby. This further evidences the couple’s plan to undertake the role of parenthood together, as it undercuts Kimberly’s assertion that her primary reason for having Z.S. was to fulfill a lifelong desire to have a child biologically her own. It also is particularly telling that Kimberly and Christina sent out birth announcements which held out Z.S. as their own. Simply put, it is strong evidence of Kimberly’s position regarding Christina’s coparent status. This announcement, by its own terms, represented to those receiving it that both Kimberly and Christina were Z.S.’s parents.

¶34. All this in the record shows that Kimberly’s original representation was that Christina was Z.S.’s equal coparent, and that Christina relied on this representation in changing her position. To now allow Kimberly to challenge Christina’s parentage of Z.S. undoubtedly will cause injury to Christina and the child. The gravity of the injury is particularly clear in this case, as Christina has had to confront the possibility that Kimberly will allow another adult to adopt Z.S. And Christina, with an inferior in loco parentis status, could do nothing to prevent it. At bottom, to deny Christina the relationship she has built with Z.S. would be a


miscarriage of justice. And so, we find that Kimberly is estopped from challenging Christina’s parental rights as to Z.S., as this position is wholly inconsistent with her earlier position, which held Christina out to be the parent of Z.S.


¶35. In this case of first impression, we hold that under Mississippi law, an anonymous sperm donor does not possess any parental rights in a child conceived through the use of his sperm. And to that end, the chancery court erred in finding that the anonymous sperm donor here was Z.S.’s parent, whose rights were subject to termination.

¶36. As for Christina’s parental rights, we hold that the doctrine of equitable estoppel precluded Kimberly from challenging Christina’s parentage of Z.S.—where there was ample evidence the then-married couple jointly and intentionally agreed to have Z.S. through the use of AI. In reaching this holding, we reverse the chancery court’s finding that Christina acted in loco parentis, but was not an equal parent with parental rights as to Z.S. And so we remand the case to the Rankin County Chancery Court with instructions to determine custody as to Z.S. in accord with the multifactor test articulated in Albright, 437 So. 2d at 1005. The Albright analysis shall be on the record, and with a guardian ad litem representing Z.S. through the course of the proceedings. See generally Albright, 437 So. 2d at 1005.






¶38. The narrow issue before the Court is whether two people legally married who jointly engage in a process of assisted reproduction technology resulting in the natural birth by the gestational mother are both considered parents for purposes of divorce and determination of parental rights of the minor child. I conclude that they are and that the decision of the chancellor should be reversed and remanded.

¶39. This decision is based on the legal status of the parties at the time of birth and on the basis of equitable estoppel. The conception and birth was a process both parties agreed to and relied upon. Simmons Hous., Inc. v. Shelton ex rel. Shelton, 36 So. 3d 1283, 1287 (¶15) (Miss. 2010) (Equitable estoppel “is defined generally as ‘the principle by which a party is precluded from denying any material fact, induced by his words or conduct upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was allowed.’”). See also Koval v. Koval, 576 So. 2d 134, 137 (Miss. 1991) (“The doctrine of estoppel is based upon the ground of public policy, fair dealing, good faith and justice, and its purpose is to forbid one to speak against his own act, representations, or commitments to the injury of one to whom they were directed and who reasonably relied thereon.”).


¶40. While this Court can use common-law principles to render a decision here,7 the Legislature should speak directly to the recognition of the legal status of children born during a marriage as the result of assisted reproductive technology. Miss. Baptist Hosp. v. Holmes, 214 Miss. 906, 931, 55 So. 2d 142, 152 (1951) (“[T]he function of creating a public policy is primarily one to be exercised by the Legislature and not by the courts.”). The Legislature has spoken that a spouse cannot “disestablish” paternity of a child born by this process. Miss. Code Ann. § 93-9-10(2)(d) (Rev. 2013). Today’s decision is the only logical extension of that code section, but the Legislature should nonetheless further address these developments in the law.

¶41. For the preceding reasons, I respectfully concur only in part and in the result.



¶42. All justices agree that, at least in the instant case, the trial judge erred in finding that the parental rights of the anonymous sperm donor must be terminated before the legal status of Christina Strickland could be adjudicated. However, I agree with Presiding Justice Randolph that we should not be rendering a decision based on an issue never presented to the

7See Funk v. United States, 290 U.S. 371, 383, 54 S. Ct. 212, 216, 78 L. Ed. 369 (1933) (noting the power of the “courts, in the complete absence of . . . legislation on the subject, to declare and effectuate, upon common-law principles, what is the present rule upon a given subject in the light of fundamentally altered conditions[.]”); State v. Edward Hines Lumber Co., 150 Miss. 1, 115 So. 598, 605 (1928) ([T]he public policy of the state must be found in its constitution and statutes, ‘and when they have not directly spoken, then in the decisions of the courts . . . .’”).


trial court, e.g., the application of equitable estoppel. Accordingly, I would reverse the chancellor’s order, hold that he erred in finding that the anonymous sperm donor enjoyed parental rights, and remand the case to the trial court to allow the parties to present whatever evidence and arguments they wish that accord with the Court’s holding.



¶43. I agree with the plurality that the chancellor wrongly declared the sperm donor the natural father. He was neither a party to the proceeding nor asserted any claim to the child. So it was error to grant him parental rights. I also agree with Presiding Justice Randolph and Justice Coleman that it is improper to decide this case based on equitable estoppel—an argument not presented to the chancellor. Restraint is particularly called for here, because the facts the plurality and Chief Justice Waller rely on to find equitable estoppel are hotly contested on appeal. The proper course is to remand to the chancellor for factual findings, keeping in mind the polestar consideration of all custody matters—the best interest of the child.

¶44. I do, however, agree with Chief Justice Waller on one point—what parental rights a sperm donor may or may not have is a policy issue for the Legislature, not the Court. And since the Legislature admittedly has never spoken on this issue, we should be extremely hesitant to draw conclusions about the disestablishment-of-paternity statute, when that statute is wholly inapplicable here. Indeed, it is dangerous for the plurality to weigh in so heavily


with what it views to be the best policy, since we all agree the chancellor erroneously inserted this issue into the case.



¶45. Time-tested maxims of trial practice and appellate review constrain me to depart from opinions of my fellow justices. First, due process requires that courts may not adjudicate rights or liabilities of persons not made parties to a proceeding. See Baker by Williams v. Williams, 503 So. 2d 249, 254 (Miss. 1987) (“[A] decree in equity cannot adjudicate the rights or liabilities of persons not parties to the proceeding.”). The next fundamental tenet is that appellate review is constrained to the trial court record presented on appeal.8 See Copeland v. Copeland, 235 So. 3d 91 (Miss. 2017) (“This Court may not act upon or consider matters which do not appear in the record and must confine itself to what actually does appear in the record.”). Finally, our precedent mandates that a trial court cannot be held in error for an issue not presented to it for determination. See Burnham v. Burnham, 185 So. 3d 358, 361 (Miss. 2015) (“The well-recognized rule is that a trial court will not be put in error on appeal for a matter not presented to it for decision.”).

¶46. The trial-court record reveals that Christina and Kimberly entered a Consent and Stipulation, jointly agreeing on the issues to be presented to and decided by the chancellor.

8 Otherwise, parties could “sandbag” trial judges in hopes of prevailing before appellate courts. Such a practice contravenes the fair and efficient administration of justice on appeal. See Order Adopting the Mississippi Rules of Appellate Procedure (Dec. 15, 1994).


(See Appendix I). Inter alia,9 Christina and Kimberly agreed to submit to the trial court the issues of visitation and child support of and for E.J. and Z.S. The issue of custody was raised as to Z.S. only. Christina claimed, and Kimberly testified, that they “shared . . . parenting” of both children. The chancellor held, based on the pleadings, exhibits, and testimony, that Christina stood in loco parentis to both children., E.J. and Z.S. See Logan v. Logan, 730 So. 2d 1124, 1126 (Miss. 1998) (“[A] person acting in loco parentis [is] one who has assumed the status and obligations of a parent without a formal adoption.”)

¶47. In this appeal, Christina challenges the chancellor’s findings as to Z.S. only, vastly expanding and reframing issues that were never presented to, nor considered by, the trial court. (See Appendix II, comparing the agreed-upon issues before the trial court vis à vis the issues raised in this appeal, verbatim et literatim). Equitable estoppel was raised for the first time on appeal, and therefore should not be considered by this Court. See Burnham, 185 So. 3d at 361.10

9 Additionally, they asked who would claim E.J. and Z.S. for state and federal income tax purposes, and whether Christina would be placed on the birth certificate of Z.S. and named as a parent thereon. Christina failed to name the State Board of Health as a party in to these proceedings. See Miss. Code Ann. § 41-57-23(1) (Rev. 2013).

10 Assuming arguendo that this Court is not procedurally barred from considering equitable estoppel, the “facts” relied upon by the plurality were disputed at trial. The chancellor, who heard the testimony and observed the witnesses’ demeanor, commented in his bench ruling that “[t]here are two different versions of how the child was cared for and how it came to be that Christina Strickland became a part of his life. Kimberly actually maintains that she was primarily involved in seeking out this procedure [artificial insemination]. Christina claims that she was very much involved with the whole thing. There is a little bit of diametrically opposed testimony as to who was making these decisions.” Notwithstanding, the plurality relies on Christina’s testimony and opines that “Kimberly is estopped from challenging Christina’s parental rights as to Z.S. . . .” (Plurality Op. ¶ 34.)


¶48. As to the sperm donor, the chancellor erred in declaring him a natural father whose parental rights had to be terminated. However, I disagree with the plurality’s blanket assertion that in any case, no anonymous sperm donors will be accorded the burdens and benefits of natural fathers. Because the record is devoid of an attempt to notice the sperm donor in order to make him a party to these proceedings, the trial court erred in granting the sperm donor such rights. No citation is required for the proposition that in all child-custody, support, and visitation cases, a bonafide effort to give notice of the proceedings is required. Our state and federal constitutions require no less. Further, the parties failed to offer the chancellor documented evidence of a waiver or consent to the proceedings. A diligent review of the record reveals that neither party presented pleadings or affidavits supporting a purported waiver. Our precedent mandates that cases be decided on the facts contained in the record. See In re Adoption of Minor Child, 931 So. 2d 566, 579 (Miss. 2006).

¶49. The plurality’s holding regarding sperm donors begins with suggesting that the “legislative intent”11 of the disestablishment-of-paternity statute—a statute not at issue in this case—puts the plurality at odds with paragraphs ten through fourteen of the chancellor’s final decree. I agree that paragraphs ten through fourteen should be struck from the final decree after remand, but only because they are obiter dictum. The statute referenced in the plurality’s opinion never was quoted or argued by either party at the trial level.

¶50. Christina sought custody of Z.S. only. The trial court awarded custody of E.J. and

11 An inquiry into legislative intent is a hazardous undertaking under even the best of circumstances.


Z.S. to Kimberly based on the best interests of the children.12 Still, the trial court found that Christina, standing in loco parentis to Z.S. and E.J., was entitled to the burdens and benefits of a parent, granting her rights to visitation and ordering child support. This finding is consistent with established legal principles, with or without the sperm donor or a determination of who is Z.S.’s natural father. See Griffith v. Pell, 881 So. 2d 184, 186 (Miss. 2004) (“Merely because another man was determined to be the minor child’s biological father does not automatically negate the [parent-child] relationship held by [Christina] and the minor [children].”) Further, substantial evidence in the record supports the chancellor’s finding. Christina argues that the trial court erred in this finding as to Z.S. only, for Christina pleaded that she stood in loco parentis to E.J.

¶51. As to Z.S., she argues that married men had their “parental status . . . recognized notwithstanding a lack of genetic relationship to their marital children.” Christina cites J.P.M. v. T.D.M., 932 So. 2d 760, 762 (Miss. 2006), and Griffith, 881 So. 2d at 185. According to this Court:

In both Pell and J.P.M., a husband learned during the pendency of divorce proceedings that he was not the biological father of a child born of, or just prior to, the marriage. In those cases, we reasoned that the natural-parent presumption had been overcome based on several facts: (1) the husbands stood in loco parentis . . . .

In re Waites, 152 So. 3d 306, 312 (Miss. 2014) (quoting Smith v. Smith, 97 So. 3d 43, 47 (Miss. 2012)). In Pell and J.P.M., nonbiological fathers were granted in loco parentis status, entitling them to burdens and benefits associated with parenthood, successfully rebutting the

12 “Court[s] shall in all cases attempt insofar as possible, to keep the children together in a family unit.” Bredemeier v. Jackson, 689 So. 2d 770, 775 (Miss. 1997).


natural-parent presumption in a child-custody battle. In Pell, the Court remanded for a best- interest Albright13 analysis. Significantly, in J.P.M., the Court affirmed the chancellor’s decision to award physical custody to the husband standing in loco parentis, for his decision was based on the best interest of the child—the polestar consideration in all child-custody cases.

¶52. In the case sub judice, the chancellor found that it was not in the best interest of either child for Christina to have custody. While the chancellor’s custody determination was not manifestly wrong or clearly erroneous, the chancellor erred by failing to address each Albright factor on the record.

¶53. Christina’s equal-protection argument as it relates to her standing in loco parentis is without merit. In loco parentis is a gender-neutral legal principle. There is no different treatment, analysis, or outcome for men and women who establish in loco parentis status. See, e.g., In re Waites, 152 So. 3d at 307 (finding that husband of child’s mother acted in loco parentis, even though husband and mother were married during child’s birth and raised child together, because he was not biological father of child). Christina’s in loco parentis status was a gender-neutral determination.

¶54. For the reasons herein stated, I would reverse and remand for the trial court to examine the record and the chancellor’s notes and issue a final decree consistent with this dissent.


13 Albright v. Albright, 437 So. 2d 1003 (Miss. 1983). 23

Issues presented to the trial court verbatim et literatim14

The following issues are therefore, presented to his Court for determination:

  1. Custody of the minor child. [Z.S.];
  2. Child support for the benefit of [Z.S.];
  3. Visitation of the minor child [Z.S.];
  4. Whether Christina Strickland shall be placed on the birth certificate of [Z.S.] and named as a parent thereon;
  5. Child support for the benefit of [E.J.];
  6. Visitation of the minor child [E.J.];
  7. Who will claim the children for Federal and State Income tax purposes;

14Substituted initials for full name.



A. Custody of the minor child, [Z.S.];

B. Child support for the benefit of [Z.S.];

C. Visitation of the minor child, [Z.S.];

D. Whether Christina Strickland shall be placed on the birth certificate of [Z.S.] and named as a parent thereon;

E. Child support for the benefit of [E.J.];

F. Visitation of the minor child, [E.J.];

G. Who will claim the children for Federal and State Income tax purposes;

APPELLANT’S “STATEMENT OF ISSUES” Presented on appeal verbatim et literatim (See Appellant’s Brief 1)

1. Whether the trial court erred in holding that a child born to a married couple who achieved pregnancy via medically assisted reproductive technology (“A.R.T.”) with sperm from an anonymous donor may be denied the benefit and protection of a parental relationship with both spouses.

a. Whether children born to married parents who give birth to a child via A.R.T. with sperm from an anonymous donor are entitled to the marital presumption that both spouses are their legal parents.

b. Whether the Supreme Court’s decision in Obergefell v. Hodges requires Mississippi to apply laws relating to the marital presumption of parentage in a gender- neutral manner so as to apply equally to married same-sex couples.

c. Whether the doctrine of equitable estoppel precludes a parent from seeking to disestablish her spouse’s parentage of the couple’s marital child based solely on the absence of a genetic relationship, when the child was born as a result of anonymous donor insemination, to which both spouses consented.

d. Whether the trial court erred in ruling that a man who contributes sperm anonymously for use in A.R.T., whose identity is not and cannot be known, constitutes the legal parent of a child born to a married woman and therefore prevents recognition of the spouse as a parent.

e. Whether the trial court committed reversible error by failing to apply precedent that recognizes the parental rights of a spouse to a child born during the marriage, reared as her own from birth, with an attached parent-child relationship and where no putative father exists or seeks to displace her parental rights.

2. Whether the trial court erred in failing to recognize the constitutionally protected liberty interests of Christina and Z.S. in their parent-child relationship that may not be disturbed absent a compelling governmental interest.

3. Whether, consistent with the U.S. Constitution, the marital presumption may denied only to same-sex couples.


Six Things to Know Before A Divorce

The divorce may not be guaranteed:

Mississippi offers eleven possible grounds for fault-based divorce.  These are impotence, adultery, incarceration, desertion, habitual drunkenness, habitual drug use, cruelty, mental illness, bigamy, pregnancy by someone else at the time of the marriage, blood relationship to your spouse, and insanity at the time of marriage. There is also a no-fault divorce called “irreconcilable differences”, but this can only be obtained if both parties agree to the divorce.   Mississippi courts will only grant a divorce if the parties agree or you prove at least one of the fault-based grounds.  If there’s not agreement and you cannot prove one of the grounds, the court will deny the divorce.

No one Wins:

No one wins in a divorce. By its very nature is an exercise in dividing the whole of the assets and time with children such that no one leaves the marriage with exactly what they had during.  Of course, when someone makes the difficult decision to leave a marriage there are multiple factors which have brought someone to that determination.  However, there is simply no way around the fact that a divorce does not produce winners, but rather an ending.

It will take longer than you want:

In Mississippi, even for an irreconcilable differences divorce to be finalize, the complaint must be on file for at least 60-days. This is usually in addition to the months that the parties have gathered the relevant financial information and negotiated the settlement agreement.  In short, no form of divorce is fast.  Even those where the parties agree to everything can take several months.  And of course, if there is a dispute as to custody or property distribution that requires a trial, the process can take much longer.

Consider the impact on the children:

To their credit parents often start the divorce process not wanting to effect the children.  Unfortunately, this is rarely achieved, regardless of whether custody and visitation are contested.  The fact is that the divorce will change children’s schedules.  The children will travel from one home to the other during their regular visits.  There they will have new houses, rooms in perhaps entirely different towns.  And due to visitation exchanges during holidays, long-held tradition are abandoned.

Always put what’s best for the children first.  When drafting the agreement avoid taking a position that attempts to limit a parent’s time with the children in an effort to punish or hurt the other parent.  If there is a reason to limit a parent’s time, make sure it’s based on that parent’s inability to care of the children and that any limitations are in the children’s best interests.

Gather the assets and liabilities:

The first step in any divorce is to determine the assets and debts of the parties.  This may include your home’s equity, investments, vehicles, boats, household items, mortgages, vehicle loans, credit cards and other such debts.  Once these are determined, the process can begin of how to share these between the parties in the divorce agreement.  There are many ways in which this can be done and it depends very much on each parties’ circumstances.

Negotiated Settlements:

Allowing a judge to decide the outcome may not be the most desired way to resolve your differences.  Be willing to consider a negotiated settlement.  This is often faster and cheaper than holding a trial and then allowing a judge determine your fate.

Mediation is a growing method to negotiate settlements in divorce cases.  Mediation may be best described as an assisted settlement discussion.  During a mediation, the third-party neutral assists the parties reach a resolution of the outstanding issues.

A negotiated settlement provides the parties a method to work toward a resolution.  By working with one another the parties gain some control in the outcome of the case.  In many cases a negotiated resolution is a faster method to resolving the issues which allows the parties to move on with their lives.

Holcomb Dunbar Attorneys:

Holcomb Dunbar’s Domestic Relations Legal Team assists families facing divorce and child support challenges throughout North Mississippi.

Jonathan Masters or Stacey Golmon provide representation in all matters of domestic relations, including adoption, alimony, child custody, child support, divorce, grandparent’s visitation rights, division of marital and non-marital assets, modifications of current custody and support orders, paternity, separate maintenance actions and name changes.

Stacey W. Golmon is also a certified Guardian Ad Litem and serves courts by investigating child custody and abuse allegation proceedings, while upholding the child’s best interest.

Please call Jonathan Masters or Stacey Golmon at 662-234-8775.

For more information about Mississippi divorce

Fun Legal Facts about Thanksgiving

As you get ready to depart for Thanksgiving, why not take some of your free time to learn a little bit about the laws surrounding this holiday?

Here are a few fun legal facts about Thanksgiving to help you through awkward small talk around the Thanksgiving dinner table.

How Thanksgiving Landed on the Fourth Thursday

Three of the most prominent Presidents in American history, George Washington, Abraham Lincoln, and Franklin Delano Roosevelt, all contributed to Thanksgiving’s place in federal law. The holiday’s initial appearance in the annals of law was the result of a resolution passed by the first Federal Congress in 1789 for President George Washington to declare a “Day of Publick Thanksgivin.” He proclaimed November 26, a Tuesday, as a day of national thanksgiving for the U.S. Constitution.

It was not until 1863, however, that the modern holiday was celebrated nationally. On October 3, 1863, Lincoln issued a Thanksgiving Proclamationofficially declaring that the last Thursday in November as a day of “thanksgiving and praise.”

In 1939, however, the last Thursday in November fell on the last day of the month, which would shorten the Christmas shopping season — possibly causing fewer people to lose their minds from the constant influx of holiday music.

FDR wouldn’t have it and issued a Presidential Proclamation moving Thanksgiving to the second to last Thursday of November. As a result of the proclamation, 32 states issued similar proclamations while 16 states refused to accept the change, dubbing the new holiday “Franksgiving” and proclaiming the true Thanksgiving to be the last Thursday in November. For the next two years, President Roosevelt repeated the unpopular proclamation and two days were celebrated as Thanksgiving.

Congress decided to settle things once and for all with a fixed-date for the holiday. On October 6, 1941, the House passed a joint resolution declaring the last Thursday in November to be the legal Thanksgiving Day, and the Senate amended the resolution establishing the holiday as the fourth Thursday, which would take into account those years when November has five Thursdays. FDR signed the resolution on December 26, 1941, establishing the fourth Thursday in November as the Federal Thanksgiving Day holiday.

This year we can be thankful that the only disagreement will be over who gets the last drumstick.

Shoppers Sing the (Sober) Blues

Care more about Black Friday shopping than Turkey Day itself?

Shopaholics in Rhode Island, Maine, and Massachusetts will have to wait for their shopping fix. In fact, it’s the law. Blue laws in these states prohibit most retail stores from opening on Thanksgiving — even grocery stores.

The rules vary among the states. For instance, retailers less than 5,000 square feet can operate in Maine. Convenience stores are also generally allowed to open, as are movie theaters, pharmacies, restaurants, and some other businesses. Retail alcohol sales remain barred on Thanksgiving Day in Massachusetts, Oklahoma, and Texas so either plan ahead or learn to handle screaming kids and nosy in-laws with liquid assistance.

Turkey Innovation

Let us not forget the intellectual property of turkeys. After all, what better way to celebrate a holiday than reading patents appropriate for the festivities?

While the U.S. Patent and Trademark Office doesn’t exactly track the growth in turkey innovation, dozens of inventors hold patents on a range of turkey themed gadgets and processes.

IP Watchdog has compiled some of the more notable ones, including this frightening remote controlled turkey decoy, this Turkey decoration that seems like a sneaky way to hide your leftover Halloween pumpkins, these toy turkeys made out of a pine cones, this collapsible hunting blind that resembles a 6 foot tall turkey plastered onto a giant umbrella laid on its side, or even this ornamental design for a turkey hunter’s safety placard named “Mr. Cautious Tom” whose tail feathers are emblazoned with the word “Hunter” and whose ascot is labelled “Caution.”

In fact, Thanksgiving leftovers even lead to the invention of LASIK eye surgery. One turkey innovator was sitting at the dinner table with his family on Thanksgiving in 1981 when he realized that leftover turkey bone cartilage would provide the perfect test subject. On November 27, 1981, his team used a laser to etch on the turkey’s cartilage in a way that could be viewed when placed under an optical microscope — leading to the invention of LASIK.

Turkey wishbones, too, have been subject to intellectual property law disputes. In 2010, Sears, Roebuck & Co. was sued for copyright infringement for producing wishbones similar to those  designed, copyrighted, and produced by Lucky Break Wishbone. The court found that the plastic replicas were copyrightable because the wishbones were designed using graphite electrodes to make it smooth and “attractive and sleek” with thinner arms and more rounded edges – making them worth $1.7 million in damages.

Some states have even passed laws requiring utilities to convert turkey waste into energy. In light of prolific turkey farming, North Carolina, and Minnesotahave both passed energy policy mandates requiring utilities to use a small amount of turkey waste-generated power. Minnesota currently has a 55-megawatt power plant designed to burn poultry waste as its primary fuel that can power  44,000 homes with 100 daily truckloads of this turkey litter. A new North Carolina plant will reportedly be the first facility designed to run on 100% turkey waste which will use 55,000 tons of turkey litter a year to produce the equivalent of 95 million kilowatt hours of electricity and feed that renewable electricity back to the grid.

One law professor took to full legal analysis of the Law of the Turkey. Claiming that nearly all contract law concepts can be learned with turkey cases. Professor Meredith R. Miller expanded this idea to cover criminal law, tort law, and just about everything else.

In Turkeys, Oral Contracts, and Mr. Gouge and Turkeys, Damages, and Alternative Damages, she recounts the many ways turkey contracts can possibly go awry. In her casebook proposal for The Modern Law of the Turkey (which I really hope comes to fruition), the chapter on Turkeys and Torts tells a tale of a Wal-Mart shopper being knocked unconscious by frozen turkeys.

Thanksgiving truly holds a little something for everyone. Be thankful.