Rule 81 Confounded

July 17, 2013 § 10 Comments

This is my 40th year in the law. The past 6 1/2 years have been on the bench, dealing exclusively with chancery matters. Before that, 33 years in practice, primarily in chancery. In my 39 1/2 years of experience, 31 have been under the MRCP.

Until yesterday, with one exception, have I ever seen MRCP 81 applied as it was yesterday in Curry v. Frazier, decided by the COA.

The one exception is Pearson v. Browning, decided last Fall.

If these two cases are good law, and they are not anomalous, you will have to drastically change the way you do process in counterclaims in chancery court. In my opinion, together both cases say that once the plaintiff has submitted himself to the jurisdiction of the court by filing a pleading, you must still get jurisdiction by R81 process over him in order to pursue your counterclaim. Yes, that’s jurisdiction times two.

Other chancellors I have talked to are scratching their heads. This is a new way to go at jurisdiction in chancery. Or is it? Has it been your experience that R81 works this way?

I wonder whether the COA has an agenda here.


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§ 10 Responses to Rule 81 Confounded

  • Lucy says:

    Chancellor fight over Rule 81? I can’t help but notice that the opinion was written by a former chancellor, and another former chancellor was on the COA panel that examined the case.

    • Larry says:

      And another former chancellor commented on my post, not exactly agreeing with my apprehension. So, you might say with some assurance that there is a wide range of opinions on R81. But I stand by my opinion that I have never seen it applied this way since the MRCP went into effect on 1-1-82.

  • Derek Parker says:

    I don’t think the opinion said, but I didn’t pick up that the change of name petition was filed in the original action where the child support order was filed. If not, I would think there was a misjoinder to file for a modification of child support in a solely change of name action. Or perhaps, it was a misjoinder to file a change of name petition in a child support and paternity action??? I don’t do that sort of thing anymore; good luck to Y’all… .
    P.S. I think I remember Chancellor Cortright requiring something like that once…

  • Joseph says:

    Another misadventure in MS’s R81 jurisprudence. But just like in the other case you cite, I can blur my vision and see the essence of the COA’s holding. When viewed that way, the holdings are not so unreasonable after all. The other one was about short notice in a stale case, and this one is about an inadequate record. I think R81 is sometimes best viewed as an area where appellate courts can go to reach de novo review on procedural matters when they have more substantive concerns.

  • Wesley Hisaw says:

    I think the case can be distinguished some. To me it looks like the issue was that the original petitioner had only issued a Rule 4 summons. As such, there was no attachment of jurisdiction over the parties to decide a Rule 81 matter. My opinion has been that jurisdiction attaches to both parties on a Rule 81 matter since equity does not occur in halves and that a counterclaim can be heard at the trial of the original Rule 81 matter.

  • thusbloggedanderson says:

    It is increasingly difficult for the MSSC to get its own case law right. It is increasingly difficult to believe the COA is even trying.

    I see that in Pearson, no cert petition was filed. So maybe better luck this time.

  • randywallace says:

    Judicial opinions following form over substance are troubling. One more stumbling block to remember for counterclaims.

  • Is the case from yesterday saying if I file an answer to a contempt action, properly served on my client, that I cannot assert a counterclaim for, say a modification of support, without personal service on the opposing party with a R81 summons? That brings up another interesting point – the status of “waiving” R81 process … I just won’t go there right now.

  • Tim Holleman says:

    Sometimes when I read these type cases I wonder who’s driving the ship. Seems common sense has left the building.

  • I have NEVER served a counterclaim with a R81. My practice, and everyone else’s I deal with, is that once the plaintiff has filed, he’s in and service on the attorney of record is cool. Of course, you still run into R 81 on contempt and such, but I have never head of, or had it raised as a defense, that a counterclaim had to be personally served. Am I missing the boat (i.e. committing malpractice)?

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