APPEARANCES ARE NOT DECEIVING

April 8, 2013 § 2 Comments

The COA’s decision in Richard v. Garma-Fernandez, handed down March 19, 2013, is one every chancery practitioner should read and appreciate for the ramifications of entering an appearance on behalf of a party.

In this case, Emilio Garma-Fernandez (hereinafter EGF) filed suit against 10 defendants, including Richard, based on a commercial contract. The suit alleged claims for accounting, imposition of resulting and constructive trusts, equitable ownership, injunction, breach of contract, tortious interference with contract, anticipatory breach, and other issues giving rise to damages and attorney’s fees.

Richard was not personally served with process, but an attorney, White, notified EGF’s attorney that she was representing him and five other defendants, and, based on that contact, EGF’s lawyer from that point on sent all communication and pleadings to White on behalf of Richard. After that, when Richard attempted to communicate with EGF’s lawyer, the lawyer directed him to stop because he was represented by counsel.

In due course, White filed a pleading styled “Motion, Answers, Defenses and Counterclaims” of certain named defendants, including the name of Richard (“Richards” in the pleading).  

EGF’s lawyer served discovery requests on Richard through White, and White did not respond. The chancellor ruled that any matters not produced in discovery would be inadmissible at trial, and that the matters request to be admitted were taken as admitted. He further dismissed Richard’s counterclaim with prejudice and awarded attorney’s fees to EGF.

EGF then filed a motion for summary judgment against Richard. White asked for more time to respond, claiming she could not locate Richard, that his file was in storage because she had moved her office, and that since Richard was located in Virginia he needed additional time. Nearly two months later the court granted summary judgment. When EGF began collection proceedings in Virginia, Richard filed a limited appearance to contest jurisdiction and for relief from judgment per MRCP 60, claiming that White did not represent him, and among other items of evidence offered White’s affidavit that she had listed him in error as one of the parties she did represent in the action. The chancellor ruled that Richard had entered his appearance, submitting himself to the jurisdiction of the court via attorney White, and denied him relief. He appealed.

The COA affirmed. I quote at length:

¶19. Richard filed a motion for relief from judgment under Mississippi Rule of Civil Procedure 60. Rule 60(b)(4) provides: “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reason[s]: . . . (4) the judgment is void.” A judgment is void if the rendering court lacked personal or subject-matter jurisdiction or acted in a manner inconsistent with due process. Overbey v. Murray, 569 So. 2d 303, 306 (Miss. 1990) (citations omitted).

¶20. The question presented is whether Garma-Fernandez’s judgment was void because the chancery court lacked personal jurisdiction over Richard. For a judgment to be valid, the court must have personal jurisdiction over the parties to the action. James v. McMullen, 733 So. 2d 358, 359 (¶3) (Miss. Ct. App. 1999).

¶21. A court obtains personal jurisdiction over a defendant in one of two ways. Personal jurisdiction is established when a defendant is properly served the summons and complaint under Rule 4 of the Mississippi Rules of Civil Procedure. Personal jurisdiction is also established when a defendant voluntarily enters an appearance. Isom v. Jernigan, 840 So. 2d 104, 107 (¶9) (Miss. 2003) (citations omitted). “One waives process and service . . . upon making a general appearance.” Id.

¶22. Richard was not served with Rule 4 process. However, Richard entered an appearance in this case when White filed a responsive pleading on his behalf. When White filed the responsive pleading on September 24, 2009, Richard voluntarily entered an appearance in the Chancery Court of Oktibbeha County and was subjected to the jurisdiction of the court. The fact that Richard was not served with process under Rule 4 no longer mattered.

¶23. Despite this voluntary appearance through attorney White, Richard could have contested both personal jurisdiction and insufficiency of service of process in the responsive pleading. See M.R.C.P. 12(b)(2), (5). He did not. The result was that the responsive pleading, without the Rule 12(b) defense asserted, waived his right to contest personal jurisdiction. See M.R.C.P. 12(h)(1). “[T]he right to contest the court’s jurisdiction based on some perceived problem with service may yet be lost after making an appearance in the case if the issues related to jurisdiction are not raised at the first opportunity.” Schustz v. Buccaneer, Inc., 850 So. 2d 209, 213 (¶15) (Miss. Ct. App. 2003). “Thus, a defendant appearing and filing an answer or otherwise proceeding to defend the case on the merits in some way—such as participating in hearings or discovery—may not subsequently attempt to assert jurisdictional questions based on claims of defects in service of process.” Id.

¶24. Our inquiry does not end here. Richard argues that a Mississippi attorney cannot give a Mississippi court personal jurisdiction over a nonresident unless that attorney has been hired by the nonresident. Richard’s brief cites, but does not discuss, Rains v. Gardner, 719 So. 2d 768 (Miss. Ct. App. 1998).

¶25. In Rains, this Court acknowledged that an individual can waive process, and an authorized attorney may enter an appearance on his behalf. Id. at 770 (¶7). When this issue is raised, the party that claims an appearance has been made bears the burden of proof. Id.

¶26. One defendant, Ginger Gardner, was represented by an attorney. Id. at 769 (¶5). Gardner’s attorney appeared on her behalf but argued that the other defendant, Tina Clark, whom the attorney did not represent, should also be dismissed from the action. Id. When the court asked the attorney whether he represented both defendants, the attorney definitively stated he only represented one (Gardner). Id. Nevertheless, the attorney renewed his argument that both defendants (Gardner and Clark) should be dismissed. Id. The plaintiff, Hazel Rains, argued that Gardner’s attorney’s actions constituted a voluntary appearance on behalf of Clark. Id. The trial court rejected that argument, and Rains appealed. Id. at (¶¶5-6).

¶27. This Court found that because there was not “even a hint of evidence” that the attorney actually represented Clark, Rains’s argument had no merit. Id. at 770 (¶7). This Court also noted that even if the attorney had made extensive arguments on the unrepresented defendant’s behalf, the attorney could not have entered a voluntary appearance on behalf of the individual if he acted without authority. Id.

¶28. This case is not factually similar to Rains. Here, White filed pleadings on behalf of Richard, and other defendants. The question the chancellor had to decide was whether Richard consented to or authorized White’s representation.

¶29. The chancellor determined that there was sufficient evidence to conclude that Richard consented to and authorized White’s representation. White filed the responsive pleading that specifically named Richard as a defendant [footnote omitted] whom she represented. Garma-Fernandez’s attorney served White with discovery for Richard. There was correspondence from Garma-Fernandez’s attorney to White that discussed her representation of Richard. The court entered an order compelling Richard to respond to discovery, with White acting as his attorney.

¶30. Also, the October 15, 2010 “Joint Motion for Extension of Time to Respond to Motion for Summary Judgment and Motion for Continuance” was filed only on Richard’s behalf. White represented herself as “his counsel of record.” White stated to the court that she had not been able to notify Richard of the motion for summary judgment, and that, because Richard was a Virginia resident, sixteen days was not enough time to make arrangements for him to appear at the hearing. Also, in this motion, White refers to Richard as “her client.”

¶31. We recognize that Richard’s affidavit attached to the limited-appearance motion claims that he never authorized White to act on his behalf. However, an assertion in Richard’s affidavit was contradicted by the evidence. White’s affidavit states that she was not and never had been Richard’s attorney. White’s affidavit, however, was contradicted by her previous assertions to the court. We agree with the chancellor that the credibility of both affidavits was undermined.

¶32. We find the evidence in the record demonstrates that White did, in fact, enter an appearance for Richard, and that she was his authorized representative in this action. Therefore, we find no merit to this issue and find no error in the chancellor’s judgment that found the court had personal jurisdiction over Richard. The chancery court’s personal jurisdiction over Richard was not based on Richard’s awareness of the lawsuit.

¶33. Next, Richard claims that knowledge of litigation is not sufficient to confer jurisdiction. This Court has stated “even actual knowledge of a suit does not excuse proper service of process.” Blakeney v. Warren Cnty., 973 So. 2d 1037, 1040 (¶13) (Miss. Ct. App. 2008) (quoting Mansour v. Charmax Indus., 680 So. 2d 852, 855 (Miss. 1996)).

¶34. As discussed above, the chancery court’s personal jurisdiction over Richard was not based on Richard’s awareness of the lawsuit. The chancellor correctly determined that the court gained personal jurisdiction over Richard through his general appearance. Therefore, we find no merit to this issue.

A few quick points:

  • If you’re going to enter a special appearance to contest personal jurisdiction, make sure it’s the very first thing you file, even before an “Entry of Appearance” or a motion for more time. Any filing other than a pleading styled “Special Appearance to Contest Jurisdiction” can be construed as a personal, general appearance, even a simple motion for more time or that “Entry of Appearance.”
  • When you file anything in a court file on behalf of a party, you are bound to represent that party, and the party is bound by your pleadings. Make sure you act within the authorized scope of your representation.
  • I have seen cases where a lawyer signs off on an agreed order to reset a case in the hope that the party will hire the lawyer, but the fee never materialized. It’s no fun watching the lawyer trying to deny responsibility in the case while the client (innocently or not) claims that he/she is relying on that lawyer. If you inject your name into a case, you are in it until the judge lets you out.
  • Losing contact with a client can have miserable results for the client. Clients who blame you for their misery can make your life mi$erable.

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§ 2 Responses to APPEARANCES ARE NOT DECEIVING

  • Larry says:

    Thanks for your comment.

    I know some lawyers in this area who still do not have written fee arrangements. To me, that is asking for trouble. An agreement is a great CYA tool, but in my experience its main advantage is that it nearly completely eliminates fee disputes because the rules are made up front instead of as one goes along.

  • Hale Freeland says:

    It’s also no fun being working in a case knowing you aren’t being paid after the retainer runs out.
    Also, retainer agreements setting forth the scope of representation are helpful for both the client and the attorney, not so much as a “CYA” document as an undertanding between both what your client wants you to do and what the client is willing to pay you for. I have modified our retainer agreements based upon some of your suggestions.

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