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.”
“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|