MRCP 81 NOTCHES A CURIOUS KILL

September 6, 2012 § 3 Comments

The latest case to fall prey to the predatory MRCP 81 is Pearson v. Browning, decided September 4, 2012, by the COA. We last looked at the vicissitudes of the rule in a post about Brown, et al v. Tate.

The case that brought Pearson v. Browning to the COA began when Dennis Pearson filed a pro se pleading against his ex-wife, Patricia Browning, seeking modification and contempt. Although the procedural history is not entirely clear, it appears that Patricia filed a counterclaim-like pleading charging Dennis with contempt. Both matters came up for hearing on February 2, 2009, when dennis failed to appear, and the chancellor dismissed his claims. The judge ordered that Patricia’s claims be reset for hearing for August 6, 2009. On or about June 10, 2012, however, the court administrator gave notice that the date was again reset, for November 3, 2010. There is no court order setting the November date.

Patricia’s attorney sent Dennis a letter, dated October 15, 2010, notifying him of the November 3, 2010, trial date. Dennis testified that he did not receive it until November 1, 2010, and he filed a letter complaining of the short notice.

On November 3, 2010, Dennis appeared personally pro se and protested the lack of time to prepare his defense and lack of notice of what he was being charged with. He moved for a continuance. The judge denied his motion and pressed on to hearing. On November 18, 2010, the chancellor entered a judgment against Dennis in favor of Patricia in the sum of $53,528.22.

The COA reversed. Judge Griffis’s opinion spells out the basic law of MRCP 81:

¶7. In this case, jurisdiction is governed by Mississippi Rule of Civil Procedure 81(d)(2), because it includes the “modification or enforcement of custody, support, and alimony judgments” and “contempt.”

¶8. A Rule 81 summons is necessary to begin dormant domestic actions listed in Rule 81(d). A Rule 81 summons is not a Rule 4 summons. See M.R.C.P. 4. A Rule 81 summons gives notice to the defendant of the date, time, and place to appear. It does not require a response. A Rule 4 summons requires a written response in thirty days. A Rule 4 summons and a Rule 5 notice have no effect with Rule 81 matters. Sanghi [v. Sanghi], 759 So. 2d at 1253 (¶¶11, 14) (citing Leaf River Forest Prods., Inc., 661 So. 2d 188, 194 (Miss. 1995); Powell v. Powell, 644 So. 2d 269, 273-74 (Miss. 1994)); see M.R.C.P. 5.

¶9. In a matter that requires a Rule 81 summons and does not use a Rule 81 summons, the resulting judgment is void because it is made without jurisdiction over the parties. See Bryant, Inc. v. Walters, 493 So. 2d 933, 938 (Miss. 1986); Duvall v. Duvall, 224 Miss. 546, 555, 80 So. 2d 752, 755 (1955); Roberts v. Roberts, 866 So. 2d 474, 476-77 (¶¶7-8) (Miss. Ct. App. 2003). If an action under Rule 81(d)(1) or (2) “is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent.” M.R.C.P. 81(d)(5). For no additional Rule 81 summons to be required, the order that continues the trial date must be signed on or before the original trial date.

¶10. In this appeal, Pearson argues that Browning failed to comply with Rule 81(d)(5). Specifically, Pearson argues that jurisdiction lapsed because a court administrator’s notice changed the trial date of January 22, 2008 to January 23, 2008; an order dated October 24, 2008 changed the trial date of September 18, 2008 to February 2, 2009; a court administrator’s notice dated June 11, 2010 changed the trial date of August 6, 2009 to November 3, 2010; and Pearson received a letter on November 1, 2010 about the November 3, 2010 trial.

¶11. Our review is limited to events that occurred after February 2, 2009. Because Pearson was the plaintiff prior to February 2, 2009, he cannot properly raise a jurisdictional issue before that date. By the fact that a plaintiff brought his claim, he consents to personal jurisdiction in that court. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 779 (1984).

¶12. Rule 81(d)(5) governs the need for additional summons on the defendant. Before February 2, 2009, Pearson simply was not entitled to a Rule 81 summons because he was the plaintiff.

¶13. On February 2, 2009, the chancery court dismissed all of Pearson’s claims with prejudice. The only claims left before the court were Browning’s contempt claims against Pearson. Hence, after February 2, 2009, Pearson was no longer the plaintiff.

¶14. Whether an additional Rule 81 summons was required and, thus, whether the chancery court had jurisdiction over Pearson on November 3, 2010, depends on: (1) whether Browning’s “motion” was actually a petition for contempt; (2) whether the court administrator’s notice was sufficient to substitute for the lack of a Rule 81 summons; (3) whether Pearson’s case is similar to Bailey v. Fischer, 946 So. 2d 404 (Miss. Ct. App. 2006); and (4) whether Pearson made an appearance, thereby waiving the lack of a Rule 81 summons.

The COA concluded that Patricia’s “motion” was, in fact, a petition for contempt that required Rule 81 notice, that the court administrator’s notice was not adequate to suffice in lieu of a proper MRCP 81 summons, that Bailey is distinguishable, and that Dennis had not waived the jurisdictional issues by making a voluntary appearance. The court reversed the chancery court judgment for lack of jurisdiction.

The four bases listed above for determination of the Rule 81 issue deserve further attention in one or more future posts and will not be addressed further here.

A few observations based on the foregoing:

  • I call this case curious because, once Dennis had been properly served with the counterclaim, in most districts that I am aware of, he was only entitled from that point to Rule 5 notice. This case seems to say either that a counterclaim requires a Rule 81 process, or that one must be issued if the original plaintiff’s pleading is dismissed. I have never seen this practice in my 29 years’ experience under the MRCP. I admit that I have had trouble understanding the exact procedural chronology of this case, so the problem may be mine. But if my understanding is correct, this case is a major change in Rule 81 practice that you need to study very carefully.
  • Once again, if the matter that is the subject of your Rule 81 summons will not be heard on the day specified in the summons, you must have the court enter an order on or before (caveat … as to before, see below) the day noticed for hearing continuing the case to a specific date and time in the future.
  • Although the COA said that the case must be continued ” … on or before …” the date set in the summons, in my opinion only an agreed order of continuance dated before the summons date would be effective. If you unilaterally reset the case by order before the date set in the original summons, you are depriving the defendant of notice and the opportunity to defend.
  • As long as Dennis was in the status of a petitioner (plaintiff) who had invoked the court’s jurisdiction, he was entitled only to MRCP 5 notice; after he lost his petitioner status, he became entitled to the protection of Rule 81 notice.

As a practice matter, if you were Patricia’s lawyer, you could have avoided most of the above problems had you seen to it yourself that proper continuance orders and notices to the opposing side were presented to the judge and entered in a timely fashion. It’s your case, after all, and judges and court administrators have lots on their respective plates. As I’ve said before, judges and court personnel do their best, but the bottom line is that they are not responsible for the proper handling of your case; you are.

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§ 3 Responses to MRCP 81 NOTCHES A CURIOUS KILL

  • […] one exception is Pearson v. Browning, decided last […]

  • Rutledge McMillin says:

    It seems to me that the COA was rightly concerned that a man was hit with, more or less, a $50,000 judgment on only two days notice of the hearing. He did not have an attorney present. The case had grown stale by the time of the hearing. The hearing just kinda popped up out of nowhere, and the man was not given adequate time to prepare. I’m in complete agreement there.

    But I would have concurred in the result only. To me, the right reasoning is to say that the chancellor abused his discretion in denying the man’s motion for continuance. The purpose of a summons is to “bring people into court.” The act of filing the petition that initiates the action (or in a contempt and modification situation, revives the dispute) is sufficient to bring the petitioner “into court.” The fact that his claim is dismissed and that a counterclaim remains outstanding does not mean that process is needed to bring him back into court. At least that’s the way I see it.

    Maybe the COA was concerned about the abuse-of-discretion standard of review applicable to the chancellor’s determination of the motion for continuance, so they found a way to travel under de novo review. I can understand that. But abuse-of-discretion review, while relatively lenient, is not the same as no review at all. Under these facts, the COA would have been well within its authority to reverse on that ground.

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