REPRISE: Perils of Process by Publication, Episode Three

June 27, 2013 § Leave a comment

Reprise replays some blog posts of note from the past that may be of some use to you today …

PERILS OF PROCESS BY PUBLICATION, EPISODE THREE

June 27, 2011 § 3 Comments

You can read here and here some of the snares in MRCP 4 that can snap painfully on the unwary.  Unwary = those who don’t bother to read the rules.

MRCP 4 publication claimed its latest victim on June 14, 2011, in the COA case of Turner v. Deutsche Bank.  In that case, the bank filed a judicial foreclosure and published process to Angela Turner.  The original complaint recited Angela’s address, and the bank duly sent its process server there, only to discover that she had moved, whereabouts unknown.  At that point, without amending its pleadings or filing an affidavit of diligent inquiry, Deutsche published process and a chancellor signed a default judgment finding, among other things, that the court had jurisdiction.

Angela awoke to what had happened and filed an MRCP 60 motion to set aside the judgment, and the original chancellor recused herself.  Her successor overruled Angela’s motion in part because the court had already ruled that it had jurisdiction.

The court of appeals reversed and remanded.  Here are some pertinent excerpts from the decision:

  • “Deutsche Bank attempted to serve Turner by publication under Rule 4(c)(4), which provides for situations where the defendant cannot be found within the state. Publication of the summons must be made once a week for three consecutive weeks in the public newspaper of the county if one exists, as in our case. M.R.C.P. 4(c)(4)(B). But service by this method is only permitted “[i]f the defendant . . . be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry.” M.R.C.P. 4(c)(4)(A).”
  • “¶10. The affidavit or sworn complaint must also state the defendant’s post-office address, if known, or swear that it could not be determined after a diligent inquiry. Id. If the postoffice address is listed, the sworn petition or affidavit must further provide the defendant’s street address or that it could not be determined after a diligent inquiry. M.R.C.P. 4(c)(4)(B). And if the plaintiff provides a post-office address, the clerk must mail the defendant (by firstclass mail, postage pre-paid) a copy of the summons and complaint to his post-office address, and note having done so on the general docket. M.R.C.P. 4(c)(4)(C). “
  • “¶12. The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (¶16) (Miss. Ct. App. 2002) (internal citation omitted). Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So. 2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759 So. 2d at 1257 (¶33). [Emphasis added]
  • “¶13. In Kolikas, we found a chancellor erred in failing to set aside a divorce decree, where the plaintiff attempted service by publication without strictly complying with the requirements of Rule 4(c)(4). Kolikas, 821 So. 2d at 879 (¶32). We observed that a defendant is “under no obligation to notice what is going on in a cause in court against him, unless the court has gotten jurisdiction of him in some manner recognized by law.” Id. at 878 (¶17).”  [Emphasis added]
  • In the petition or affidavit, the plaintiff must certify to the court, among other things, that the defendant is a nonresident or cannot be found in Mississippi.
  • This conclusion is supported by the supreme court’s decision in Caldwell v. Caldwell, 533 So. 2d at 415. There, the supreme court noted that Rule 4(c)(4)(A) was substantially the same as the statute in place before the adoption of the Mississippi Rules of Civil Procedure. Id. The Caldwell court found instructive and quoted favorably a pre-rules treatise’s comment that “[a]n affidavit to support process by publication must strictly comply with the statute and if it omit[s] averment of diligent inquiry it is insufficient.” Id. at 416 (quoting Griffith, Mississippi Chancery Practice , Bobbs-Merrill Company, Inc. 225-27 (1925)). And “where notice by publication is resorted to . . . as a basis for the jurisdiction of the court, in lieu of personal summons[,] all the requirements of the statute as to such notice must be strictly complied with[.]” Id. at 415 (emphasis added). Rule 4(c)(4)(A) is equally clear that the plaintiff must attest that he has performed a diligent inquiry before performing service by publication. It is no less true today that a sworn averment of diligent inquiry must be made to effectuate proper service by publication. “[Emphasis added]
  • “Rule 60(b) provides that the court may relieve a party from a final judgment if one of the stated conditions is met. One such condition exists where “the judgment is void.” M.R.C.P. 60(b)(4). Our supreme court has held that “[a] court must have . . . proper service of process . . . in order to enter a default judgment against a party. Otherwise, the default judgment is void.” McCain v. Dauzat, 791 So. 2d 839, 842 (¶7) (Miss. 2001) (internal citation omitted). Although “[t]he grant or denial of a 60(b) motion is generally within the discretion of the trial court, . . . [i]f the judgment is void, the trial court has no discretion.”

So here’s what you need to take away from this case:

First, if you’re going to obtain process by publication, you are going to have to comply with every technical requirement of MRCP 4(c)(4).  The rule is to be strictly construed.

Second, if you have not been able to discover the whereabouts of the other party for service of process, you must file your affidavit of diligent inquiry before you publish. Filing it later will not work.

Third, if you do not comply strictly with the rule, your judgment will be void and subject to being set aside. In other words, you client will have paid you for accomplishing nothing, and maybe even for putting him in a worse position. That usually makes a client peeved enough to sue somebody.

This is yet another in a long list of decisions that would have had an entirely different outcome if counsel had simply taken a few minutes to read the rule and do what it says.

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