New Rule: When an Order is Effective

September 19, 2017 § 2 Comments

MRCP 58 specifies that a judgment must be entered by the clerk per R79(a) in order for it to be effective. That’s the rule for a judgment, but what is the rule for an order?

[Refresher … a judgment is a final, appealable ruling of the court that adjudicates all claims of all parties or, if fewer than all issues are resolved or fewer than all parties are affected, the judge includes a certificate per MRCP 54(b). An order, on the other hand, is a ruling by the court on matters brought before it in the course of litigation that do not finally resolve the issues in the case.]

That was the question before the MSSC in Graceland Care Center, et al. v. Hamlet, decided August 17, 2017. Here is how the court describes what happened:

¶1. Teresa Hamlet filed a motion for an extension of time to serve process, prior to the expiration of the 120-day deadline provided by Mississippi Rule of Civil Procedure 4(h). The trial judge granted the motion and signed an order, yet the order was not filed with the circuit clerk until the day before the granted extension expired, well after the expiration of the original, 120-day deadline. Hamlet served process on three defendants during the extension. On the same day the order was filed, Hamlet filed a second motion for time, which the trial court also granted. While Hamlet served process on the remaining defendants within the second extension period, the order granting the second extension was not filed with the clerk until three months after it was signed by the judge.

¶2. The defendants filed a motion to dismiss Hamlet’s complaint, arguing that the statute of limitations had run before the court’s order granting additional time to serve process had been entered by the clerk of court. The defendants further argued that Hamlet’s suit could not be revived by the untimely filed order. The trial court denied the defendants’ motion to dismiss . . .

In a 6-3 decision, the court affirmed. Justice King wrote for the majority:

¶27. Therefore, in cases involving ex parte motions, such as the present case, we find that the order becomes effective upon leaving the judge’s control. However, in cases where more than one party is involved and notice becomes essential, we find that an order becomes effective once it is officially entered into the record by the court clerk.

¶28. Of course, there also are certain other orders to which this general rule would not apply. For instance, temporary restraining orders and other emergency orders (such as domestic protective orders) are effective before filing with a clerk. See M.R.C.P. 65(b) (“[T]emporary restraining order . . . shall be filed forthwith in the clerk’s office and entered of record”). In addition, certain rulings of a trial judge that require immediate action, such as those under a judge’s contempt powers, would not be subject to the general rule.

¶29. This rule in no way limits the ability of the trial judge, where otherwise allowed by law, to enter an order nunc pro tunc, make an order retroactive or have it relate back for enforcement purposes. The purpose of this rule is to effectuate notice to the parties and establish some finality as relates to the running of deadlines.

So the rule now is that interlocutory orders are effective upon entry unless they are ex parte, in which case they are effective when they leave the judge’s control.

You need to read the entire opinion to get the rationale and understand how it applies. Also, while you’re at it, Coleman’s dissent, joined by Dickinson and Beam, has plenty of authority contra on the point.

_____________

Thanks to Attorney Andy Lowery for bringing this case to my attention.

 

 

Taking as Admitted … or not

September 18, 2017 § Leave a comment

Ursel Williams sued her husband, Wayne Williams, for separate maintenance after he left her. In the course of litigation, Wayne propounded R 36 requests for admission (RFA’s), most of which went to the merits of Ursel’s claims. Ursel never responded, and Wayne moved at trial for the chancellor to take the requests as admitted. She refused. Wayne appealed the judge’s grant of separate maintenance and raised in his appeal the issue of the chancellor’s refusal to take the admissions as admitted.

In Williams v. Williams, decided August 22, 2017, the COA affirmed. Judge Lee wrote for a 7 1/2 -1 1/2 court (Judge Wilson joined the dissent “in part”):

¶7. Rule 36 of the Mississippi Rules of Civil Procedure governs requests for admissions. The rule states, in pertinent part, that a matter will be deemed admitted if the party upon whom the request was served does not timely respond or file an objection addressed to the matter. M.R.C.P. 36(a). A timely response equates to one being made within thirty days. See id. Thereafter, the matter is conclusively established unless the court permits the admission’s withdrawal or amendment. M.R.C.P. 36(b). “A matter that is deemed admitted does not require further proof.” Locklear v. Sellers, 126 So. 3d 978, 981 (¶7) (Miss. Ct. App. 2013). Still, while “Rule 36 is to be applied as written, . . . ‘it is not intended to be applied in Draconian fashion.’” In re Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424, 432 (¶28) (Miss. 2009) (quoting DeBlanc v. Stancil, 814 So. 2d 796, 801-02 (¶26) (Miss. 2002)). Specifically, “[a] certain amount of discretion is vested in the [chancellor] with respect to whether he or she will take matters as admitted.” Earwood v. Reeves, 798 So. 2d 508, 514 (¶19) (Miss. 2001) (citation omitted).

¶8. The problem here is that the admissions produced contradictory results. Some of the requests asked Ursel to admit that: the separation was her fault, Wayne did not refuse to support her, and Wayne did not abandon her. However, another request asked Ursel to admit that “there is no significant conduct on [y]our part that negatively impacts the enjoyment of the marriage contract.” Ursel obviously admitted to this statement in her untimely response. As such, we fail to see how the matter could be conclusively established as Wayne argues; thus, it was within the chancellor’s discretion to rely on the trial testimony to resolve any conflicts. Furthermore, the chancellor recognized that it was within her discretion to review the reason for Ursel’s failure to timely answer the requests for admissions. The chancellor found the delay of thirty-three days was not “critical,” and we can find no abuse of discretion in this instance. The dissent states that Wayne’s requests for admissions were deemed
admitted for Ursel’s failure to timely reply and that the contradictory admission does not encompass the essential elements of Ursel’s separate-maintenance claim. However, the dissent concedes that it is within the chancellor’s discretion whether to take matters as admitted. In this instance, we cannot find error by the chancellor.

Nothing earthshaking here.

In child custody cases, RFA’s may not be relied upon by the chancellor as the body of proof. And here is another post (with the same title) on the point.

It’s important to keep in mind that you shouldn’t send RFA’s out to do the bulk of the heavy lifting in your case. They aren’t designed to do that. As the court has said, the purpose of the request for admission under Rule 36 is “to determine which facts are not in dispute . … It is not intended to be used as a vehicle to escape adjudication of the facts by means of artifice or happenstance.” DeBlanc v. Stancil, 814 So. 2d 796, 802 (Miss. 2002).

Dispatches from the Farthest Outposts of Civilization

September 15, 2017 § Leave a comment

When a Judgment Isn’t a Judgment

September 13, 2017 § 3 Comments

If a chancellor finally adjudicates a case with an instrument entitled “Order,” is that a final, appealable judgment?

Check out MRCP 58:

Every judgment shall be set forth on a separate document which bears the title of “Judgment.” However, a judgment which finally adjudicates the claim as to all parties and which has been entered as provided in MRCP 79(a) shall, in the absence of prejudice to a party, have the force and finality of a judgment even if it is not properly titled … [my emphasis]

That language came into play in the recent COA case, Bray, et al. v. Wooten, et al. handed down August 22, 2017.

In that case, on May 12, 2014, the chancellor rendered a final ruling following a hearing, and entitled it “Opinion and Order.” The order was filed the same day in the office of the chancery clerk. Later, on July 11, 2014, a document entitled “Final Judgment,” that had been drafted by one of the attorneys and signed by all counsel, was erroneously presented to the other chancellor in the district. He signed it that day, no doubt not taking time to study it in detail because it was signed off on by all counsel, and it was entered by the clerk on July 15, 2014. A motion for new trial was filed within ten days of entry of the July judgment, and was overruled ruled by the original chancellor in January, 2015. The appeal was filed within thirty days of the chancellor’s January, 2015, ruling, which came eight months after the May, 2014, final order. Here’s what the COA said about it:

 ¶17. We begin with the jurisdictional issues. [One of the appellants] argues that the Bray’s notice of appeal was untimely. It claims that the final judgment was Chancellor Kilgore’s Order and Opinion dated May 12, 2014. Thus, since the Bray’s notice of appeal was not filed until February 10, 2015, it was almost seven months late, and this appeal should be dismissed.

¶18. “[W]e review questions of law, such as jurisdiction, utilizing a de novo standard of review.” Weeks v. State, 139 So. 3d 727, 729 (¶5) (Miss. Ct. App. 2013) (citing Whetstone v. State, 109 So. 3d 616, 618 (¶6) (Miss. Ct. App. 2013)). Mississippi Power argues that Chancellor Kilgore’s January 14, 2015 order stated that his final order was the May 12, 2014 order. Thus, Mississippi Power contends that Bray did not timely perfect the appeal. Bray counters that Mississippi Power did not join Wooten’s motion for summary judgment or move separately for summary judgment, meaning the chancellor’s judgment was not final. We address both of these arguments.

¶19. “A final, appealable, judgment is one that adjudicates the merits of the controversy and settles all the issues as to all the parties and requires no further action by the lower court.” Jennings v. McCelleis, 987 So. 2d 1041, 1042 (¶4) (Miss. Ct. App. 2008) (quotation marks omitted) (quoting Walters v. Walters, 956 So. 2d 1050, 1053 (¶8) (Miss. Ct. App. 2007)). “Generally, only final judgments are appealable.” Walters, 956 So. 2d at 1053 (¶8) (quoting M.W.F. v. D.D.F., 926 So. 2d 897, 899 (¶4) (Miss. 2006)).

¶20. Mississippi Rule of Civil Procedure 58 provides:

Every judgment shall be set forth on a separate document which bears the title of “Judgment.” However, a judgment which fully adjudicates the claim as to all parties and which has been entered as provided in M.R.C.P. 79(a) shall, in the absence of prejudice to a party, have the force and finality of a judgment even if it is not properly titled. A judgment shall be effective only when entered as provided in M.R.C.P. 79(a).

In his January 14, 2015 “Opinion and Order,” Chancellor Kilgore ruled:

This order was filed in the office of the Chancery Clerk on May 12, 2014. Although this judgment was styled “Opinion and Order” and was clearly intended to be a final resolution to the action, counsel for Wooten acknowledged that he drafted a document entitled “Final Judgment”’ and mistakenly submitted same to the other Chancery Judge in the district, who signed this order on the 11th day of July, 2014.

¶21. The chancellor’s May 12, 2014 order was entitled “Opinion and Order.” It did not comply with Mississippi Rule of Civil Procedure 58, which clearly requires that a final judgement [sic] be titled “Final Judgment” in order to be considered one. A further analysis through Mississippi Rule of Civil Procedure 79(a) does not support the chancellor’s ruling.

¶22. Therefore, we find that the chancellor’s May 12, 2014 Opinion and Order was not a final, appealable judgment, and it did not have the force and finality of a judgment. The fact that the parties’ attorneys prepared and signed a “Final Judgment” supports our decision. Had it been submitted to the correct chancellor, there would be no argument that the notice of appeal was untimely. Regardless, the earliest possible appealable “final judgment” in this case was the Final Judgment that was signed on July 11, and entered on July 15, 2014. The motion for a new trial was filed on July 25, 2014, which was within ten days as required by Mississippi Rule of Civil Procedure 59(b). Because the notice of appeal was filed within thirty days of the chancellor’s January 14, 2015 “Opinion and Order,” we find no merit to this issue.

If the COA is trying to say that the labelling of the May ruling worked prejudice on the appellant that was compounded by his submission of the “Final Judgment” to the wrong judge, okay. That makes sense under R 58, which specifically says that mislabelling of a final judgment is only fatal to its finality if it creates a prejudice to a party.

But the COA’s language at ¶21 is too sweeping to me when it says, “[The May Order] did not comply with Mississippi Rule of Civil Procedure 58, which clearly requires that a final judgment be titled “Final Judgment” in order to be considered one.” On the contrary, under R 58, the chancellor could have tiled it “Laundry List,” and, if it finally adjudicated all claims as to all parties, it would be a final, appealable judgment if no one could show prejudice. The language of the opinion, which may be quoted as authority, can be taken to mean something contrary to the express language of the rule.

The wrinkle here was the submission to and signing of counsel’s “Final Judgment” by a busy chancellor who was likely interrupted in other matters to accommodate the request. Had the document been submitted to the proper chancellor, I believe he would have declined to sign it on the basis that he had already issued a final ruling in the case. He said as much in his January, 2015, ruling on the R 59 motion.

 

Life Estate with Right to Convey Fee Simple

September 12, 2017 § Leave a comment

May a person convey property by warranty deed to another, reserving both a life estate and the right to convey the property as if he were fee simple owner?

In 1973, Gilbert Lum executed a warranty deed conveying a 40-acre tract to his daughter, Lucille Crotwell. The deed included the following language:

“Grantor, however, does hereby expressly RESERVE unto himself a life estate in the foregoing lands coupled with a full and absolute disposition to be exercised by him as though he were the fee simple owner thereof … also RESERVING unto himself all mineral interest owned by him in said lands for his lifetime.”

In 1998, Lum conveyed one acre of the tract to Prestage by warranty deed, subject to his life estate for mineral interests. Prestage in turn conveyed the property to himself and his wife as tenants by the entirety. The couple executed a deed of trust which, after mesne assignments, was foreclosed on in August, 2011, and purchased by T&W Homes.

In December, 2011, the Crotwells filed a complaint to confirm title, remove cloud, and for ejectment. The special chancellor granted summary judgment that Lum had reserved a life estate only, and that his reservation of the right to reconvey fee simple title was “an illegal and void restraint upon alienation and repugnant to the granting clause of the deed. T&W filed an interlocutory appeal.

In T&W Homes v. Crotwell, decided August 24, 2017, the MSSC affirmed. Justice Randolph wrote for the 7-2 majority:

¶7. T&W argues that deeds containing reservations of life estates with power to reconvey fee simple title are recognized in other states. Each case cited by T&W is not only foreign to Mississippi law, but is factually distinguishable. … the deed at issue in the case sub judice effected a then-present conveyance by general warranty deed of real property owned by Lum. After acknowledging receipt of valuable consideration—thus taking this case outside the realm of inter vivos and testamentary gifts—Lum“[c]onvey[ed] and warrant[ed]” the forty acres described in the deed to Crotwell. The deed was signed, delivered, notarized, and filed—putting the world on notice of the transaction. Crotwell was the grantee identified in the deed. She was described in the deed as a contingent remainderman, as posited by the dissent. See Diss. Op. at ¶ 20.6 The words  “remainder” or “remainderman” are not in the deed sub judice. Contra Jamieson, 912 S.W.2d at 604-05.

¶8. …  [Footnotes omitted] The Lum-Crotwell deed reads that consideration was exchanged. On his oath, Lum acknowledged receipt of consideration in the notarized deed, rendering [a Maryland case] inapposite and unpersuasive.

¶9. Finally, T&W asks this Court to consider Kyle v. Wood, 86 So. 2d 881 (Miss. 1956). While Kyle remains good law for the principles of wills and testaments, it offers no guidance to today’s case. [Fn omitted]

¶10. In Kyle, J.A. Wood’s 1948 will contained the following provision:

I will and give all my property of every kind wherever located to my beloved wife, Mrs. Molly Wood, to have [and] to hold during her lifetime to use, sell and dispose of as she sees fit; and at her death, then such property left to my said wife by me is to be given to my nephew, by marriage, Arthur Kyle.

Id. at 882. J.A. Wood died in 1952. Id. Later that year, Molly conveyed the property to another. [Fn omitted] After her death, [Fn omitted] nephew Kyle filed suit against her grantees, complaining that the grant of power in J.A. Wood’s will to dispose was invalid. Id. at 882-83. This Court found Molly’s conveyance valid:

It thus appears that the rule is well settled by our own decisions, that where a testator gives an estate for life only, with the added power to the life tenant to convey the estate absolutely, the life tenant may defeat the estate of the remainderman under the will by the exercise of the power of disposal during his lifetime.

Id. at 885.

¶11. Today’s case is governed by the law of deeds, not the law of wills and testaments. [Fn omitted] To write a learned treatise on each subject is not the endeavor of this opinion, which would be the result were we to discuss exhaustively the voluminous distinctions between these intricate and nuanced bodies of law. Suffice to say, we offer only a smattering of distinguishing features. A grantor of a deed must deliver it before it becomes effective. [Fn omitted] On the other hand, to convey real property by will, the testator devises [Fn omitted] the real property upon death. And while wills are revocable by the testator at any time before death, a warranty deed for consideration (no matter how slight) is irrevocable between the parties once executed—and once filed, is valid against the world. The rule of Kyle affects testators of wills, not grantors in deeds.

¶12. The provisions in Wood’s will and Lum’s deed also differ. Wood left his wife a life estate in his property with the power to dispose. Lum, however, did not deed his daughter a life estate with the power to dispose, but rather conveyed the property by a general warranty deed to his daughter in fee and reserved unto himself a life estate. The provisions of Wood’s will were testamentary gifts. His nephew Kyle was a mere remainderman. The Lum-Crotwell deed was not a gift; it was a completed transfer or conveyance of real property with no reference to a contingent remainder. Crotwell was Lum’s grantee. T&W’s attempt to use testamentary law to settle a deed dispute is no less repugnant than the contested language in the deed before us.

¶13. Unlike the cases cited by T&W, the deed from Lum to Crotwell was not a future gift. It was not an enhanced life estate with potential remaindermen. The deed effected a present conveyance, consideration of which was acknowledged in the deed. Lum “convey[ed] and
warrant[ed]” the property to Crotwell. And as the chancellor noted, “warrant” conveys a statutorily defined meaning. See Miss. Code Ann. § 89-1-33 (Rev. 2011) (“The word “warrant” without restrictive words in a conveyance shall have the effect of embracing all of the five (5) covenants known to common law, to wit: seizin, power to sell, freedom from incumbrance, quiet enjoyment and warranty of title.”). The warranty deed contained no restriction on the warranty. Thus any attempt to reserve the power to reconvey, or convey again, fee simple title is repugnant to the grant of the warranty, which included all of the aforementioned covenants, as found by the learned chancellor.

¶14. A deed case directly on point which validates the chancellor’s decision is Dukes v. Crumpton, 103 So. 2d 385, 386 (Miss. 1958). The deed from Dukes to Crumpton contained the following provision: “Grantor or his successor reserve all rights of sale and management.” This Court held that such a provision “is an illegal and void restraint upon alienation and repugnant to the granting clause of the deed.” Id. at 388. T&W attempts to distinguish Dukes, arguing that while the reservation in Dukes was perpetual, the one from Lum to Crotwell terminated with the life estate. However, the shortened life of the reservation does not render an otherwise repugnant clause valid. The fact remains that a present conveyance, for which sufficient consideration was duly acknowledged, was executed, subject only to a life estate. That conveyance carried with it the five covenants that attached to the warranty of the deed. Because the warranty was without restriction, any reservation of the right of the grantor to sell fee simple title to property already conveyed was repugnant to the covenant of the power to sell included in the grant and warranty to Crotwell. Pursuant to the deed, Crotwell acquired ownership of the property upon delivery of the deed—March 13, 1973. Lum could not subsequently convey to Prestage property he no longer owned.

¶15. The dissent is correct that, when interpreting deeds, we look to the language employed in the deed to determine and effectuate the intent of the parties. [Fn omitted] Before making an omniscient declaration of the parties’ intent, the dissent contorts and amends the “plain language of the deed” by asserting (1) that “Lum’s deed conveyed to Lucille no present interest in the property,” (2) that it instead “provided her a contingent remainder,” and (3) that it “clearly stated that title to the property in fee simple would vest in Lucille only upon Lum’s death provided he had not otherwise conveyed the property during his lifetime.” Diss. Op. at ¶ 20. Yet none of these conclusions is supported by the words of the deed. The
language ofthe deed effectuates a present conveyance: “I, Gilbert Lum, [address] convey and warrant to Lucille Lum Crotwell [address]” the described forty acres (emphasis added). The deed recites and acknowledges receipt of consideration, and Lum swore it was delivered. Nowhere in the deed does it describe Crotwell’s interest as a contingent remainder. Nor did Lum transfer, grant, or convey a life estate. He conveyed the described property to Crotwell while reserving unto himself a life estate. There were no words of inheritance in the deed, either in the warranty portion or following the reservation to himself. Upon his death, his life interest dissolved. Had Lum conveyed to himself a life estate with the right to dispose of the property, remainder to Crotwell (as the dissent would characterize the deed before us), the dissent’s interpretation of his intent would hold water. [Fn omitted] But such is not the case. [Emphasis in original]

¶16. We agree with the chancellor that Lum retained an ownership interest in the property—his life estate—which he retained the right to sell during his lifetime. But rather than “fail[ing] to recognize a contingent remainder,” [Fn omitted] we restrict our analysis to the words
of the deed and decline to create a contingent remainder when one is not contained therein.

Pardon the truncated version of the opinion. I was trying to capture the gist of it for you. You can read the original for your own edification if you need it to argue. The footnotes omitted above by themselves would make a fine opinion in their own right.

One trivial quibble: deeds are usually acknowledged, not sworn to. There is a difference between the two actions, as I have explained previously. At a couple of points in the opinion, mention is made that Lum swore to delivery and other averments of the deed. The actual language of the deed is not included with the opinion, so we readers do not know whether the deed was sworn or acknowledged. My guess, though, is that it was merely acknowledged because that is how deeds are executed, per MCA 89-3-1, et seq.

Divorce is a Rule 4 Action

September 11, 2017 § 2 Comments

Last week I invited your comments on this language from the MSSC’s decision in Lewis v. Pagel, the case that changed the law of venue in Mississippi divorce actions:

¶34. It is uncontested in the record that Drake did not answer Tonia’s complaint for divorce. While Drake was not required to do so, he was permitted to do so under Mississippi Rule of Civil Procedure 81. M.R.C.P 81(d)(4); see also M.R.C.P. 12. Drake certainly could have responded to Tonia’s complaint and challenged venue. Instead, Drake chose to litigate the entire divorce and several ancillary matters, including several appeals, before raising his venue objection once a contempt judgment appeared imminent.

A couple of commentors hit the nail on the head.

The problem with that statement is that divorce is not a R81 matter; it is a R4 matter. Read R81(d) for yourself. Other than a motion for temporary relief in a divorce, there is no mention of divorce in R81(d). That’s because process in a divorce is made pursuant to R4, and an answer is required within 30 days of service or the defendant will be in default. Now, it is true that a divorce complaint may not be taken as confessed, so that failure to file an answer can not result in entry of a default judgment as would be the case in a law suit; however, it is not R81 process that would be returnable to a day certain, and failure to file an answer does have consequences unlike R81.

It is true that R81 is “subject to limited applicability” to Title 93, which includes divorces. But that provision yields to statutory “procedures” that may be in conflict with the rules, and there are no statutory procedures spelled out in Title 93 that conflict with R4, or with R81 for that matter.

The reason I am pointing this out is not because I like to challenge the justices. It’s because I think it’s important for us to keep these things straight to avoid confusion. The above unfortunate language now sleeps in our jurisprudence, possibly to awaken and do mischief in some later case.

I think sometimes that lawyers who have not spent much time dealing with R81 see it as some kind of mystical incantation that must be invoked in chancery matters, and that unless the rituals are properly observed and the magic is properly invoked, jurisdiction will not attach.

The fact is that R4 and R81 are simply two different systems for service of process. Every matter is a R4 action unless it is specifically mentioned in R81(d). It’s as simple as that.

RIP CIRCUIT JUDGE JUSTIN COBB

September 9, 2017 § 3 Comments

Judge Cobb died today while jogging on his 43rd birthday, according to Lauderdale County Coroner Clayton Cobler.

A promising, dedicated life cut too short.

God bless Holli, children, Leonard and Betsy.

Tesserae

September 8, 2017 § 1 Comment

 

Rule 4 or Rule 81?

September 6, 2017 § 9 Comments

Yesterday we discussed Lewis v. Pagel, the June 1, 2017, MSSC case that changed Mississippi divorce law with respect to venue.

Can anyone tell me what is wrong with this statement from the opinion:

¶34. It is uncontested in the record that Drake did not answer Tonia’s complaint for divorce. While Drake was not required to do so, he was permitted to do so under Mississippi Rule of Civil Procedure 81. M.R.C.P 81(d)(4); see also M.R.C.P. 12. Drake certainly could have responded to Tonia’s complaint and challenged venue. Instead, Drake chose to litigate the entire divorce and several ancillary matters, including several appeals, before raising his venue objection once a contempt judgment appeared imminent.

I’ll revisit this next week.

Divorce Venue Can Be Waived

September 5, 2017 § Leave a comment

If there is one maxim of conventional wisdom in Mississippi divorce law, it is “Venue in a divorce is jurisdictional.” As a result, an objection to venue can not be waived.

That’s because the divorce venue statute, MCA 93-5-11, has been construed to confer subject matter jurisdiction which, as everyone knows, can neither be waived nor voluntarily conferred. The concept is embedded in our case law.

The foregoing was the law until June 1, 2017. Now the law has changed.

In Lewis v. Pagel, decided by the MSSC on June 1, 2017, Drake Lewis tried to argue on appeal that the chancery court lacked subject-matter jurisdiction over his divorce from Tonia Lewis Pagel because he was not a resident of the county where the divorce was filed. The Supreme Court rejected that argument, and turned its attention to the question whether Drake had waived what up until then had been unwaivable. Justice Chamberlin wrote for a unanimous court:

 ¶28. In addition to residing in Harrison County, Drake waived his objection to improper venue by not timely raising it. Under Mississippi law, it is a “basic premise that venue may be waived.” Belk v. State Dep’t of Pub. Welfare, 473 So. 2d 447, 451 (Miss. 1985).

¶29. Section 159 of the Mississippi Constitution vests subject-matter jurisdiction in the chancery courts over divorce proceedings. Miss. Const. art. 6, § 159. Personal jurisdiction in a divorce proceeding, though, is governed by Mississippi Code Section 93-5-11. Section 93-5-11 was amended by the Legislature in 2005 to include new language on the transfer of venue: “Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.” Miss. Code Ann. § 93-5-11; see also 2005 Miss. Laws 448. Rule 82(d) of the Mississippi Rules of Civil Procedure provides:

(d) Improper Venue. When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court in which it might properly have been filed and the case shall proceed as though originally filed therein. The expenses of the transfer shall be borne by the plaintiff. The plaintiff shall have the right to select the court to which the action shall be transferred in the event the action might properly have been filed in more than one court.

M.R.C.P. 82 (emphasis in original). Further, the Rules provide the procedure for contesting improper venue. M.R.C.P. 12(b). We have not applied the language of Section 93-5-11 directly after its 2005 amendment.

¶30. We recognize that before the 2005 amendment this Court consistently found that Section 93-5-11 could not be waived as it vested subject-matter jurisdiction over divorce actions in the chancery courts. See Cruse v. Cruse, 202 Miss. 497, 499, 32 So. 2d 355, 355 (1947) (applying Section 2738); Price v. Price, 202 Miss. 268, 272, 32 So. 2d 124,125 (1947) (applying Section 2738); Carter v. Carter, 278 So. 2d 394, 396 (Miss. 1973) (applying Section [93-5-11’s 1942 Code predecessor]) [Fn omitted] ; Miller v. Miller, 323 So. 2d 533, 534 (Miss. 1975); Stark v. Stark, 755 So. 2d 31, 33 (Miss. Ct. App. 1999); Slaughter v. Slaughter, 869 So. 2d 386, 395 (Miss. 2004); see also Bush v. Bush, 903 So. 2d 700, 701 (Miss. 2005) (order granting and deciding merits of petition for interlocutory appeal).

¶31. Today, we overrule these past cases to the extent that they hold that Section 93-5-11 confers subject-matter jurisdiction on chancery courts. [Fn 3] Subject-matter jurisdiction is conveyed by the Mississippi Constitution. Section 93-5-11 governs the venue of a divorce action and limits the chancery court’s exercise of personal jurisdiction over the defendant. The Mississippi Rules of Civil Procedure control the procedure to be utilized when venue is improper. [My emphasis]

[Fn 3]  In 2006—after Section 93-5-11 was amended—this Court, in dicta, found that Section 93-5-11’s venue requirement conferred subject-matter jurisdiction on the chancery courts. National Heritage Realty, Inc. v. Estate of Boles, 947 So. 2d 238, 248–49 (Miss. 2006) (applying Miss. Code Ann. § 91-7-63(1)). We decline to follow this interpretation of Section 93-5-11 post-amendment. It appears the Boles Court did not take the amendment into account.

¶32. Additionally, even if the venue argument was correct, the appropriate remedy would have been transfer of the matter to Jackson County. M.R.C.P. 82(d). Rule 82(d), explicitly incorporated by Section 93-5-11’s amendment, allows the court to transfer an action only “on timely motion.” Id.

¶33. Drake’s motion challenging venue—eight years after the initial complaint—was untimely. Tonia filed her complaint for divorce in 2006; the chancery court entered an order of divorce in 2008. Drake first raised the issue of venue in 2014—six years after the entry of the judgment of divorce.

¶34. It is uncontested in the record that Drake did not answer Tonia’s complaint for divorce. While Drake was not required to do so, he was permitted to do so under Mississippi Rule of Civil Procedure 81. M.R.C.P 81(d)(4); see also M.R.C.P. 12. Drake certainly could have responded to Tonia’s complaint and challenged venue. Instead, Drake chose to litigate the entire divorce and several ancillary matters, including several appeals, before raising his venue objection once a contempt judgment appeared imminent.

¶35. Our finding of waiver is reinforced by Drake’s actions after filing this appeal. After Drake noticed this appeal—in which he raises the issue of a lack of subject-matter jurisdiction before this Court—he entered three agreed orders that were approved as to form by his counsel. Each order recognizes that the Harrison County Chancery Court has jurisdiction over both the subject matter of the dispute and the parties involved in the
dispute. [Fn omitted] Therefore, we find that Drake has waived his objection to venue by litigating in Harrison County.

So there you have it. Venue in a divorce case is no longer a function of subject matter jurisdiction that can not be waived or voluntarily conferred; it is a function of personal jurisdiction that can be waived. If venue is improper, the issue must be timely raised, and the remedy is transfer, not dismissal.

Remember that “timely” language from R 82. It does no good to plant a venue objection in your answer, and then to joust through discovery and motions for a year or two only to try to get the case transferred after the tide has been running against your client.

One little fillip, though. Won’t this open up the possibility of forum shopping? The plaintiff and defendant may decide to file in a district where neither resides because it has a shorter wait time to final hearing, or has a judge who is more to their liking, or for any other reason. A judge may invoke R 82 on her own motion at any time, but something has to bring the issue to the judge’s attention for that to happen. Or maybe we are simply entering an era when the locus of the divorce no longer has that much significance. Stay tuned.