COMPLYING WITH RULE 10(d), MRCP

November 30, 2010 § Leave a comment

Rule 10(d), MRCP, states “Whenever any claim or defense is founded on an account or other written instrument, a copy thereof should be attached to or filed with the pleading unless justification for its omission is stated in the pleading.”

Originally, Rule 10(d) required a copy of any writing to be attached as an exhibit to the pleading.  That requirement was removed in 2000 to conform to the Mississippi Supreme Court’s ruling in Gilchrist Machine Co. v. Ross, 493 So.2d 1288, 1292, n. 1 (Miss. 1986); see also, Edwards v. Beasley, 577 So.2d 384 (Miss. 1991); and Bryant, Inc. v. Walters, 493 So.2d 933, 938 (Miss. 1986).

So what do you need to do to avoid an evidentiary problem under Rule 10(d)?

As the comment states, ” … it remains good practice normally to attach such documents as part of a clear statement of a claim or defense,”  and the rule does specifically state that a copy should be attached unless justification for not attaching it is stated in the pleading.  The comment points out that if a foundation document is not attached to an otherwise sufficient pleading, it may be obtained through discovery.

From the cases, it appears that the documents offered at trial that were not attached would likely be admitted, unless no justification was given in the pleading and efforts to discover them were unsuccessful.

Tagged: , ,

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

What’s this?

You are currently reading COMPLYING WITH RULE 10(d), MRCP at The Better Chancery Practice Blog.

meta

%d bloggers like this: