PUBLISH RIGHT OR PERISH
November 9, 2010 § 4 Comments
We’ve talked before about what you need to do when publishing process for a defendant whose post office address is known. You can read that post here.
When you have no information about the defendant’s whereabouts, there are a couple of things you have to do before you can publish.
MRCP 4(c)(4)(A) states in part:
… if it be stated in … sworn complaint or petition that the post office address of the defendant is not known to the plaintiff or petitioner after diligent inquiry, or if the affidavit be made by another for the plaintiff or petitioner, that such post office address is unknown to the affiant after diligent inquiry and he believes it is unknown to the plaintiff or petitioner after diligent inquiry by the plaintiff or petitioner, the clerk … shall promptly prepare and publish a summons to the defendant to appear and defend the suit.
Your first step is to send your client out into the world to make an effort to find the defendant. Have her call his relatives and ask about where he is. If they say the last they heard he was in Milwaukee, have your client call information in Milwaukee or look him up on the internet. If he remarried, try to contact his later spouse or children. Suggest she call his former employers or co-workers. Most of these efforts will be futile, but the efforts themselves, not the success, constitute the “diligent” part of “diligent search.”
After your client has diligently, but unsuccessfully, tried to find the defendant, prepare your pleadings including a sworn allegation in your pleading or an affidavit that the defendant’s address is unknown to your client “after diligent inquiry.” You must include that language, or your publication will be a nullity.
The rule says that the “clerk shall promptly prepare and publish a summons,” but it is the universal practice that the lawyer prepares the summons and gives it to the clerk to issue, and the lawyer carries it to the paper for publication. The publication must be substantially in the form of MRCP Form 1-C.
Publication is once a week for three successive weeks in a newspaper published in the county. The publication notice certified by the newspaper is filed in the court file by the lawyer.
The defendant has thirty days from the date of first publication within which to file a responsive pleading.
Once you get before the court, your client or the affiant will have to testify to the efforts they made to locate the defendant. There is no case law defining the proof necessary to satisfy the diligent inquiry requirement. In Page v. Crawford, 883 So.2d 609, 611-12 (Miss. App. 2004), the court said this:
There is no bright line rule as to how many efforts must be made by a plaintiff to locate a named defendant to satisfy the requirement of diligent inquiry. There is also the question of balancing the quality of those inquiries with their quantity. Standing on a street corner and asking passersby if they know the defendant’s location would clearly not constitute diligence, no matter how many persons were asked in that manner. Beyond that, it becomes a matter of balancing quantity, quality and the interests of the parties.
In this case, Page did make several attempts to locate and serve Crawford within the 120-day period, searching through both telephone and utility directories and repeatedly engaging process servers. When Page finally found Crawford’s husband, he refused to accept certified letters regarding the matter. Although land records do seem like an obvious place to conduct an inquiry, Page was looking under a former name that was given at the time of the accident.
In Caldwell v. Caldwell, 533 So.2d 413 (Miss. 1988), the Mississippi Supreme Court found Mr. Caldwell’s half-hearted efforts to discover his wife’s post office address in Alaska to be insufficient, especially in view of the fact that she had family he could have contacted, but did not, to further his search.
I have refused to allow parties to go forward where it was obvious that more could have been done to locate the defendant. In one case, the plaintiff testified that the last she heard her husband was in prison in Texas. I pointed out to the attorney that prisoners, of all people, should be among the easiest to locate. Sure enough, they went back to the drawing board and found him on an internet prisoner locator site. They then got personal process on him and were able to proceed with an uncontested divorce.
The purpose of MRCP 4 is to ensure that a defendant receives notice of legal proceedings against him, if at all possible, so that he has the opportunity to defend. If the court finds that your client’s efforts fulfill that purpose, your publication process will be adequate. Don’t take your client’s word for it that she has tried to find him and failed. Make her go through the process of trying.
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 |
SHRIMP AND CRAB SAUTE
November 7, 2010 § Leave a comment
So you have a pound of lump crab meat on hand and you want to gag at the thought of crab cakes yet again. Here’s a great recipe inspired by Galatoire’s that is simple and yet good enough for company. It’s even better with a side of roasted asparagus topped with a tangy lemon and tarragon sauce or a green salad with Italian dressing or a vinaigrette.
SHRIMP AND CRAB SAUTÉ
1 Tbsp. olive oil
2 Tbsp. butter
1 Green bell pepper, chopped
1 Red bell pepper, chopped
2 Medium yellow onions, julienned
1 Lb. jumbo shrimp
1 Lb. lump crab meat
8 Oz. mushrooms, sliced
3 Cloves garlic, minced
Salt and ground black pepper to taste
Pasta
Parmesan cheese
_______________________________
Heat oil and butter over medium heat until butter is melted.
Add peppers and onions and saute until vegetables are wilted.
Add shrimp and cook until shrimp turn pink. Salt and pepper to taste. Add crab meat and mushrooms and cook until mushrooms are soft. Be sure to toss only, rather than stir, so as not to break up the lump crabmeat.
Remove from heat and add the garlic, tossing to mix. Salt and pepper to taste.
Toss with the pasta of your choice.
Top with Parmesan cheese, if you wish.
FOOD VS. FOOTBALL
November 6, 2010 § Leave a comment
Now that college football season is almost over (I know, some of you will say that my team’s season never really started!), I am going to be posting about cooking and putting up some of my favorite recipes that I have accumulated over the years.
Tomorrow I will post a great, simple recipe inspired by a dish I enjoyed at Galatoire’s, and I’ll try to keep up most weekends. If you have a recipe or something about cooking you’d like to share, send it to me and I’ll post it.
RULE 8.05, AMENDED
November 5, 2010 § Leave a comment
The Supreme Court yesterday entered an order amending Uniform Chancery Court Rule 8.05, in part. You can read the amended rule here.
In essence, the amended rule keeps in effect the financial statement with which we are all familiar, and adds a more detailed statement as an option to be used, “By agreement of the parties, or on motion and by order of the Court, or on the Court’s own motion … ”
Check out the more detailed form. There will likely be cases where it will be more suitable for your use than the original form.
ELVIS IN MERIDIAN: THE PINK CADILLAC
November 5, 2010 § 1 Comment
I posted about Elvis Presley’s appearance in Meridian in 1955 here.
Several people who saw the Meridian parade with Elvis in person told me they remembered that the car was pink. Turns out their memories were on target.
According to this Elvis fan’s website, Elvis had purchased the car, a 1954 pink and white model, in March, 1955, only 2 months before the Meridian parade photos that I posted. He used it to transport himself and his back-up musicians, Scotty Moore, D. J. Fontana and Bill Black, who were billed as the Blue Moon Boys, to various gigs around the south. Elvis had made it known to all of his friends and fellow performers that it was his dream to own a pink Cadillac. The one he rode in Meridian was his first.
On June 5, 1955, Elvis and his band had completed a show at Hope, Arkansas. The next show was in Texarkana, and Elvis invited a local girl to ride with him in the Cadillac, while Moore, Black and Fontana rode in another car with some friends. Near Fulton, Arkansas, about half-way to Texarkana, a brake lining on the Cadillac caught fire, and the car burned up.
Elvis's dream car goes up in smoke
Neither Elvis nor his passenger were hurt, but Elvis was probably sad to see his dream car, the one he rode on in the Meridian parade, in flames.
On July 7, 1955, Elvis bought his second pink Cadillac. Actually, it was a blue 1955 Fleetwood Series 60 with a black top. He had a neighbor formulate a pink color for it that the neighbor named “Elvis Rose,” and the neighbor painted the car for him. This second Cadillac is the famous Pink Cadillac that Elvis gifted to his mother and became her proudest possession. It is still on display in the auto museum at Graceland.
Gladys Presley's "Elvis Rose" Cadillac in the driveway at Graceland
CHANCERY COURT CONTESTED ELECTION RESULTS
November 4, 2010 § 1 Comment
In District 7 (Tunica, Quitman, Coahoma, Tallahatchie and Leflore Counties), Place 1, Catherine Farris-Carter of Shaw opposed Tom T. Ross, Jr., of Clarksdale.
Farris-Carter 52% Elected
Ross 48%
Also in District 7, Place 3, W. M. Sanders of Greenwood and Jimmy Miller of Marks faced off for a newly-created seat.
Sanders 63% Elected
Miller 37%
District 8 (Hancock, Harrison and Stone Counties) to take the place of retiring Chancellor Margaret Alfonso. Candidates were: Jennifer Schloegel and Dara Skinner, of Gulfport; and Robert G. Harenski, William E. Tisdale and Fran Yeatts, all of Biloxi.
Schloegel 51% Elected
Skinner 13%
Harenski 11%
Tisdale 21%
Yeatts 3%
In District 10 (Forrest, Lamar, Pearl River and Perry Counties), for Place 2, to replace Judge Sebe Dale. The candidates were Dawn H. Beam of Sumrall, Scott Phillips of Columbia, and Aaron L. Russell of Carriere.
Beam 47% Runoff
Phillips 36% Runoff
Russell 17%
In District 10 (Forrest, Lamar, Pearl River and Perry Counties), to replace deceased Judge James H. Thomas, write-in.
I learned from an unofficial but well-placed source that Judge Thomas actually received 54% of the vote, and, as a result, Governor Barbour will appoint a replacement.
In District 13 (Covington, Jefferson Davis, Lawrence, Simpson, and Smith Counties), incumbent Judge Larry Buffington of Collins faced opponents Douglas MacArthur Magee of Mendenhall and David Shoemake of Collins.
Buffington 44% Runoff
Magee 11%
Shoemake 45% Runoff
In District 18 (Benton, Calhoun, Lafayette, Marshall and Tippah Counties), incumbent Judge Edwin H. Roberts, Jr. was opposed by Helen Kennedy Robinson of Oxford.
Roberts 69% Elected
Robinson 31%
A comprehensive recap of all the election results is here.
DODGING THE MRCP 36 BULLET
November 3, 2010 § 1 Comment
FN1. “Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow…. Miss.R.Civ.P. 36(a).
“Such admissions, however, are not necessarily irrevocable. Sawyer, 556 So.2d at 697-698 (citing Educational Placement Services, 487 So.2d at 1318). Rule 36(b) provides the procedure to revoke admissions:
“Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission …. [T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. Miss.R.Civ.P., Rule 36(b).
“The Martins made no attempt to withdraw or amend the Requests for Admissions under Rule 36(b); they merely untimely filed the Answers to the Simmons’ Request for Admissions. Essentially, the Martins argue that the filing of a late response to Request for Admissions is the equivalent of requesting withdrawal or amendment of the admissions. The Simmons respond that even if this were true, they have been prejudiced due to the death of Wesley Simmons, a material witness. Cf. Brook Village North Asso. v. General Electric Co., 686 F.2d 66, 70 (1st Cir.1982).
“A number of courts do allow untimely Answers to Requests for Admissions, when to do so would aid in the presentation of the merits of the action and no prejudice would ensue to the party who made the request. See e.g., Aldrich & Co. v. Donovan, 778 P.2d 397, 399 (Mont.1989); Herrin v. Blackman, 89 F.R.D. 622, 624 (W.D.Tenn.1981); *257 Bittner v. State for Use & Benefit of Alaska Laborers, 627 P.2d 648, 649 (Alaska 1981); Farmers Elevator Co. of Horace v. Nagel, 307 N.W.2d 580, 586 (N.D.1981); Latendresse v. Latendresse, 294 N.W.2d 742, 747-48 (N.D.1980); Marshall v. Dist. of Columbia, 391 A.2d 1374, 1379 (D.C.Ct.App.1978); Hadra v. Herman Blum Consulting Engineers, 74 F.R.D. 113 (D.C.Tex.1977); See also, 8 Wright & Miller, Federal Practice and Procedure § 2257 at 719-720 (1972); 4A Moore’s Federal Practice 2d ed., Admission of Facts-Procedure § 36.05(4). Other courts allow untimely answers to a request for admissions when there has been excusable neglect or compelling circumstances. See e.g., Dukes & Barber v. S.C. Ins. Co., 770 F.2d 545, 548-49 (5th Cir.1985); Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686, 688 (2d Cir.1966).
“The problems encountered by the Martins in this case could easily have been eliminated if a motion to withdraw or amend the answers had been filed pursuant to Rule 36(b) and if there were justifiable excuse. See Sawyer, 556 So.2d at 698; Educational Placement Services, 487 So.2d at 1318. However, we need not reach the issue whether withdrawal or amendment may be allowed when there is no excusable neglect but a party is not prejudiced because the chancellor was not called upon to exercise his discretion to allow the withdrawal of the amendment of the answers to the admissions under Rule 36(b). See Diversified Communications v. Godard, 549 A.2d 362, 363 (Maine 1988). Since the lower court was never asked to exercise its discretion under Rule 36(b), the trial court properly followed our holding in Educational Placement Services v. Wilson, 487 So.2d 1316 (Miss.1986). We therefore are not called upon to determine if an abuse of discretion occurred and we find the chancellor properly applied Mississippi law to this issue.”
THANKS
November 3, 2010 § Leave a comment
It’s the ultimate compliment for any elected official to be unopposed for re-election, and I certainly do take the fact that no attorney in this district qualified to run against me as the ultimate compliment.
Thanks to all of you for your support.
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