NOTICE FOR A DAY CERTAIN

May 2, 2013 § Leave a comment

Although the COA decision in In the Matter of Transfer of Structured Settlement Payment Rights by Benny Ray Saucier, handed down March 26, 2013, nominally dealt with the notice provisions of the Mississippi Structured Settlement Protection Act (MSSPA), MCA 11-57-1 through 15, it punctuates an important point about notice and process that applies in other cases as well.

The statutes in this case specify certain notices that must be given to “all interested parties”:

  • Section 11-57-11(2) states that, “Not less than twenty (20) days prior to the scheduled hearing on any application for approval of a transfer of structured settlement payment rights under Section 11-57-7, the transferee shall file with the court . . . and serve on all interested parties a notice of the proposed transfer and the application for its authorization … “
  • And subsection (f) states that, “Notification of the time and place of the hearing and notification of the manner in which and the time by which written responses to the application must be filed which shall be not less than fifteen (15) days after service of the transferee’s notice in order to be considered by the court or responsible administrative authority.”

The statute, however, does not spell out what form of process or notice should accomplish what the statute mandates.

Here’s what the COA said in the majority opinion by Judge Griffis:

¶68. The MSSPA does not specify the appropriate notice that is required section 11-57-11(2). Because the MSSPA requires court approval, “[a] civil action is commenced by filing a complaint with the court.” M.R.C.P. 3(a). To obtain personal jurisdiction over an interested party, service of process is required consistent with either Rule 4 or Rule 81 of the Mississippi Rules of Civil Procedure. Although the MSSPA is not included among the actions subject to Rule 81(a), reading section 11-5-11(2), we interpret notice to require a return for a date certain similar to the procedure authorized in Rule 81(d)(5). At a minimum, once the original notice is provided to an interested party, notice of subsequent proceedings must comply with Mississippi Rule of Civil Procedure 5.

So, in these cases where a statute provides notice for a given period, and the matter is not among those enumerated in MRCP 81(d)(1) and (2), your safest course is to issue process to a day certain under MRCP 81(d)(5). In my experience this is exactly what practitioners and judges have been doing since the earliest days of the MRCP, but it is nice to see the appellate court’s stamp of approval on the practice, since it makes complete sense.

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