TRANSFER OR DISMISS?
December 8, 2010 § 5 Comments
It was long the law in Mississippi divorce cases that venue is jurisdictional, and that an action filed in the wrong county had to be dismissed, and could not be transferred to the appropriate county. See, Carter v. Carter, 278 So.2d 394, 396 (Miss. 1973). Venue in a Mississippi divorce is said to be “exclusive” because the divorce statutes define where venue lays. The action must be brough exclusively in the county specified. Where venue is exclusive, it is jurisdictional.
Against this backdrop, the Mississippi Supreme Court decided the case of National Heritage Realty, Inc. v. Estate of Boles, 947 So.2d 238 (Miss. 2006), reh. den. February 8, 2007. The case involved an estate opened in Tallahatchie County, which was the county where the decedent formerly lived before relocating to a nursing home in Leflore County, where she subsequently died. The chancellor found that venue for the estate was properly in Leflore County, and had ordered that the estate be transferred from Tallahatchie County to Leflore. The Supreme Court, by Justice Easley, ruled that the venue statute for estates is exclusive, and, therefore, jurisdictional. In the absence of jurisdiction, the chancellor was without authority to take any action, even a transfer. In the absence of jurisdiction, his action was void and not merely voidable. Justice Easley at page 248 based his reasoning on the established divorce venue law, to which he analogized the estate venue statutes.
The only problem is that the divorce venue statute, MCA § 93-5-11, had been amended in 2005, a year before the Boles decision, to add the following sentence: “Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.” MRCP 82(d) reads, in part:
“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 if originally filed therein … “
Justice Easley’s opinion makes no mention of the amendment.
From time to time I get requests from lawyers to transfer a case, usually from Lauderdale to Clarke County, although I have been requested to transfer to other counties. This occurs primarly with out-of-district lawyers who are unfamiliar with the fact that some people with a 39301 zip code and a Meridian address actually reside in Clarke County, or some folks with Collinsville addresses actually reside in Newton or Neshoba, or with Daleville or Lauderdale addresses actually residing in Kemper. The predominant type of case lawyers want transferred involves the Structured Settlement Protection Act, MCA § 11-57-1, et seq. I presume they prefer transfer over dismissal because dismissal requires filing a new petition and starts over the law’s technical notice and time requirements.
So how can we reconcile Boles and MCA § 93-5-11 and MRCP 82(d)?
In the absence of any definitive guidance from the appellate courts, here is my interpretation:
- If the case is not a divorce and venue is exclusive (i.e., defined in the statute upon which your action is based), then the case can not be transferred. It must be dismissed and refiled.
- If venue in the case arises under MCA § 11-11-3, the general venue statute (which has been held to be applicable to actions in chancery court where there is no exclusive venue statute), the case may be transferred per MRCP 82(d).
- If the case is a divorce, it may be transferred per MCA § 93-5-11, but see the caveat below.
Some observations based on the above:
Cases under the Structured Settlement Protection Act may not be transferred because MCA § 11-57-11 includes an exclusive venue provision.
An action solely for an injunction is under the general venue statute because MRCP 65 does not define venue for the action. A Rule 65 action may be transferred.
Although the statute expressly authorizes transfer of a divorce, consider the ramifications before you do it. The divorce statutes include an exclusive venue provision. Under Boles, an action filed in the wrong venue in an exclusive venue case is void ab initio, meaning that the chancellor has no authority to take any action other than to dismiss. The court lacks subject matter jurisdiction. Price v. Price, 32 So.2d 124 (Miss. 1947). Lack of subject matter jurisdiction is a defect that may be raised at any time, even years after the fact, because the action of the court lacking jurisdiction is void, and not merely voidable. Would you want to risk having your client’s divorce set aside somewhere down the road by the other party who is disgruntled with the outcome? If I were the attorney, my preference would be to take the safe path and dismiss the case with improper venue rather than transfer it.
[I hope this is a helpful starting point for Frankie and colleagues at MC Law]