THE PROPER NAMES OF PLEADINGS

November 8, 2010 § 3 Comments

Rule 7, MRCP, states:

“There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim; a third-party complaint, if a person who is not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served.  No other pleading shall be allowed, except that the court may order a reply to an answer or third-party answer.”

and

“An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.”

Early on, the appellate courts held that the trial courts are to look beyond the name given to the pleading by the drafting attorney to the substance of the document.  In other words, calling a counterclaim a “countercomplaint” or calling a petition a “motion” does not deprive the court of authority to act.

Still, styling a pleading incorrectly can cause confusion and may even lead the trial court into error, as it did in the case of Sanghi v. Sanghi, 759 So.2d 1250 (Miss. App. 2000).

The better practice is to use the proper nomenclature when drafting pleadings, so that your intent is clear and you can at least look like you know what you are doing.

I have looked at the rules and studied the few cases on the subject and have come to the conclusion that the following table sets out the proper names to be used for various pleadings, at least until the appellate courts give some more definitive guidance on the subject.      

Function Title of Pleading        

Party Filing and Opposing Party        

Initiate a new lawsuit not based on a prior judgment        

 Complaint       

 Plaintiff and Defendant       

 Answer a Complaint       

 Answer       

 Defendant and Plaintiff       

 File a claim by defendant against the plaintiff       

 Counterclaim       

 Counterclaimant and Counterdefendant       

File a claim by defendant against co-defendant        

Cross-claim        

Cross-claimant andCross-defendant       

Initiate a lawsuit seeking modification or enforcement of existing judgment        

 Petition       

 Petitioner and Respondent       

Answer a Petition        

Answer        

Respondent and Petitioner        

File a claim by respondent against the petitioner        

 Counterclaim       

 Counterclaimant and Counterrespondent       

File a claim by respondent against a co-respondent        

 Cross-claim       

 Cross-claimant and cross-respondent       

 Ask the court in an already-filed action for some relief (e.g., temporary relief, compel discovery, summary judgment, etc.)       

   Motion     

   Movant and Respondent     

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