February 18, 2020 § 1 Comment
Plaintiff files suit in county A. Defendant files a motion to transfer the suit to county B, claiming that venue is improper in county A. When the matter comes before the court for hearing, plaintiff offers her affidavit saying merely that venue is proper in A, without more. Defendant responds with a detailed affidavit. What law is the court to follow? How do we resolve the issue?
In Weir v. Mayze and Sago, an MSSC case decided January 16, 2020, Justice Ishee authored a succinct statement of the law:
¶6. At issue here is the trial court’s fact determination regarding the location of the accident. This Court has stated that the plaintiff’s choice of venue must be given the benefit of reasonable doubt and “must be sustained unless in the end there is no credible evidence supporting the factual basis for the claim of venue.” Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1155 (Miss. 1992); see also Earwood v. Reeves, 798 So. 2d 508, 513 (Miss. 2001); Pisharodi v. Golden Triangle Reg’l Med. Ctr., 735 So. 2d 353, 354 (Miss. 1999). “[C]ourts begin with the well-pleaded allegations of the complaint,” which may be “supplemented—and contested—by affidavits or other evidence in cognizable form.” Tanksley, 608 So. 2d at 1155; see also Park on Lakeland Drive, Inc. v. Spence, 941 So. 2d 203, 207 (Miss. 2006). But if the “plaintiff wishes to defeat a motion to transfer venue, it follows that he or she should be prepared to present some credible evidence supporting his or her choice of forum.” Wilkerson v. Goss, 113 So. 3d 544, 557 (Miss. 2013).
This case involved a suit in county court, and the applicable venue statute was MCA 11-11-3, which is the circuit court statute. I see no reason why the rationale of the case law cited should not apply equally in chancery.
November 18, 2019 § Leave a comment
Donald Pritchard filed a Complaint for Divorce against his wife, Lisa, on March 17, 2017. Lisa by then had moved to Alabama.
Donald mailed a copy of the complaint and summons via certified mail to two addresses that Lisa was known to use in Alabama: her residence; and her mother’s. Neither envelope was marked, “restricted delivery.” The copy mailed to Lisa’s address was neither delivered nor refused; the postal service returned to sender stamped “unclaimed.”
As for the copy delivered to Lisa’s mother’s address, Lisa’s sister, Pamela Berthiaume, signed the receipt indicating she was Lisa’s agent (later denied by Lisa). Donald filed the receipt as proof of service. The clerk noted on the docket that Lisa’s answer was due on May 14, 2017. Lisa’s sister met with Lisa, gave her the copy of pleading and summons; and read it with her to help her understand.
On the day appointed for hearing, Lisa did not appear, and the chancellor granted a divorce on the ground of desertion, entering its final decree on June 5, 2017.
Lisa filed a motion to set aside the divorce judgment on June 13, 2017, claiming that the court lacked personal jurisdiction because she was never properly served with process. A hearing on the motion was held in April, 2018, and the court overruled it finding that: Lisa was properly served by certified mail; she had actual notice of the complaint, but she failed to answer or appear; and the court did consequently have jurisdiction.
On appeal, the COA reversed, vacated, and remanded. The case, Pritchard v. Pritchard, was handed down August 27, 2019. Predictably, the opinion penned by Judge Corey Wilson points out that the technical requirements of MRCP 4 were not met, and the fact that Lisa had actual knowledge of the suit was not enough to satisfy R4. There’s nothing novel here; you can read it for yourself.
In dissent, Judge Jack Wilson makes the intriguing argument that Lisa indeed was served with process — personally by her sister Pamela Berthiaume. Here’s how he explains it:
¶36. I agree with the majority that Donald’s attempts to serve Lisa by certified mail were ineffective because the mailing was not marked “restricted delivery” and was returned as “unclaimed.” See M.R.C.P. 4(c)(5); Long v. Vitkauskas, 228 So. 3d 302, 304 (¶6) (Miss. 2017) (“Mississippi Rule of Civil Procedure 4(c)(5) requires a mailing of process to an out-of-state, natural defendant be marked ‘restricted delivery.’”); Bloodgood v. Leatherwood, 25 So. 3d 1047, 1051 (¶16) (Miss. 2010) (“A returned envelope marked ‘unclaimed’ is insufficient to satisfy service requirements under Rule 4(c)(5).”).
¶37. However, the chancery court did not err by denying Lisa’s motion to set aside the divorce decree because there was sufficient evidence for the court to find that Lisa was personally served with the summons and complaint. A “sheriff or process server” may accomplish personal service on a competent adult “by delivering a copy of the summons and of the complaint to [her] personally.” M.R.C.P. 4(d)(1)(A). A “process server” may be “any person who is not a party and is not less than 18 years of age.” M.R.C.P. 4(c)(1).
¶38. Here, Donald mailed a copy of the summons and complaint by certified mail to Lisa at her mother’s address. Lisa did not accept the mailing. However, Lisa’s sister [Pamela] (Berthiaume) signed for it and then personally delivered the complaint to Lisa. Berthiaume testified that she even read the complaint to Lisa. [Fn 6] Thus, Berthiaume “personally” served the complaint consistent with the plain language and requirements of Rule 4(c)(1).
[Fn 6] At the hearing on Lisa’s motion to set aside the divorce decree, Berthiaume testified, in response to a direct question from the chancellor, that the document that she delivered to Lisa was Donald’s complaint for a divorce. In his bench ruling at the conclusion of the hearing, the chancellor found that Berthiaume had delivered the summons and complaint to Lisa. See Smith v. Church Mut. Ins., 254 So. 3d 57, 62 (¶11) (“As to issues of service of process, this Court reviews the trial court’s findings for an abuse of discretion.”). Berthiaume later signed an affidavit in which she claimed that she was “confus[ed]” when she testified in court. In her affidavit, Berthiaume asserted that the document that she delivered and read to Lisa was actually a proposal for an irreconcilable differences divorce, not a complaint. Lisa submitted Berthiaume’s affidavit in support of her motion to reconsider the denial of her motion to set aside the divorce decree. However, Lisa never produced the alleged proposal for an irreconcilable differences divorce. The chancellor denied Lisa’s motion to reconsider.
¶39. The majority opinion suggests that personal service was not effective because Donald never asked Berthiaume “to act as a process server consistent with Rule 4(c)(1)” or because “there is no proof of service to substantiate a date on which Lisa was personally served.” Ante at ¶27. The majority then states personal service was ineffective because there was not “strict compliance” with “the plain requirements of Rule 4.” Ante at ¶28.7 With respect, I disagree.
¶40. The plain language of Rule 4(c)(1) requires nothing more than personal delivery of the summons and complaint by a nonparty adult. As the chancellor found, that happened in this case. Rule 4(c)(1) does not require that the “process server” agree or even intend to act as such. In addition, Rule 4(f) specifically provides that “[f]ailure to make proof of service does not affect the validity of the service.” M.R.C.P. 4(f) (emphasis added). Because Donald did not file proof of personal service, he was not entitled to an evidentiary presumption of valid service. See Collins v. Westbrook, 184 So. 3d 922, 929 (¶18) (Miss. 2016) (explaining that a properly executed proof of service raises a rebuttable presumption that service occurred). However, based on Berthiaume’s own testimony, the chancellor found that personal service had in fact occurred. Thus, the lack of a properly executed and filed proof of personal service is unimportant.
¶41. Our courts have not addressed this issue previously, but the Washington Supreme Court held that similar “secondhand” service constituted valid personal service under that state’s substantively identical rules of procedure. See Scanlan v. Townsend, 336 P.3d 1155, 1160-62 (¶¶22-34) (Wash. 2014). In that case, “a process server delivered a copy of the summons and complaint to [the defendant’s father] at his home. But [the defendant (Townsend)] did not live at her father’s home. Townsend’s father later handed the summons and complaint directly to Townsend . . . .” Id. at 1156 (¶1). Townsend denied that such “secondhand” service was effective. However, the Washington Supreme Court rejected her argument, reasoning that “[n]othing in the plain language of [Washington Civil Rule] 4(c) precludes Townsend’s father, who is over 18 years old, is competent to be a witness, and is not a party, from having authority to serve Townsend.” Id. at 1161 (¶26).
¶42. In Scanlan, the Washington Supreme Court followed a prior Washington Court of Appeals decision in a case that involved personal service by the defendant’s neighbor. See id. at 1161-62 (¶¶31-34) (discussing Brown-Edwards v. Powell, 182 P.3d 441 (Wash. Ct. App. 2008)). In Brown-Edwards, a process server mistakenly delivered the summons and complaint to the defendant’s neighbor, but the neighbor then personally delivered the documents to the defendant. Scanlan, 336 P.3d at 1161 (¶31). The neighbor’s delivery was deemed valid personal service because the neighbor “certainly [met] the criteria for a process server.” Id. at (¶32) (quoting Brown-Edwards, 182 P.3d at 442 (¶6)). As the court explained, Nothing in the rule requires that a process server have a contractual obligation to serve process. Nor is there any requirement of proof of intent to serve process. And we find nothing that would prohibit a person who comes into possession of a summons and complaint by defective service from being a competent process server. The rule prohibits only a party to the action from serving process. Id. (quoting Brown-Edwards, 182 P.3d at 442 (¶6)). In short, a person can effect valid personal service even if she does so unwittingly.
¶43. The reasoning of the Washington courts is persuasive. Berthiaume came into possession of the summons and complaint as a result of a defective attempt at service by certified mail, but she then personally served Lisa in a manner consistent with the plain language and requirements of Rule 4(c)(1). We are bound to apply the “plain language” of the rule rather than “our own notions” of how the rule perhaps should read. Poindexter v. S. United Fire Ins. Co., 838 So. 2d 964, 971 (¶30) (Miss. 2003) (plurality op.) (applying Mississippi Rule of Civil Procedure 15(a)); accord id. at 972 (¶35) (Waller, J., concurring). On the facts of this case, valid personal service occurred under Rule 4(c).
¶44. In summary, there was sufficient evidence for the chancellor to find that Berthiaume personally delivered the summons and complaint to Lisa, and such personal service satisfies the plain language of Rule 4(c)(1). [Fn 8] I would affirm the decision of the chancery court
denying Lisa’s motion to set aside the divorce decree. Therefore, I respectfully dissent.
[Fn 8] Lisa did not receive notice of the hearing on Donald’s complaint. However, both this Court and the Supreme Court have held that there is no obligation to give notice of such a hearing to a party who fails to enter an appearance or answer a complaint for divorce. Lindsey v. Lindsey, 818 So. 2d 1191, 1194 (¶11) (Miss. 2002); Stinson v. Stinson, 736 So. 2d 1259, 1261-62 (¶¶6-10) (Miss. Ct. App. 1999); Carlisle v. Carlisle, 11 So. 3d 142, 145 (¶10) (Miss. Ct. App. 2009).
Whichever opinion you find persuasive, you must admit that Judge Wilson has a good point (think about that for a minute).
It would be interesting to see what the MSSC would do with this issue.
October 1, 2019 § Leave a comment
Last week I posted about the Abercrombie case which relied on Burgess v. Williamson to reach the conclusion that res judicata may operate to bar raising a claim of lack of subject matter jurisdiction on appeal.
Back in April, the COA faced the same issue and reached the same conclusion.
On April 3, 2016, a chancellor granted grandparent visitation rights to Toni Lisenby-Grundy, the paternal grandmother, with her grandson, John. The defendant in that case was the maternal grandmother, Jessie Lou Price. A year later Jessie was found in contempt for not allowing Toni her visitation. Jessie never appealed either of these judgments, and she never raised the issue of lack of jurisdiction in either of them.
Again, in May, 2017, Jessie was found in contempt for the same behavior.
Following the May, 2017, contempt judgment Jessie appealed, asserting as one ground that the contempt judgment is void because the trial court never had jurisdiction in the first place to award grandparent visitation. The basis for her jurisdictional challenge is that neither her husband, Roy, nor her daughter Theresa, had been joined as required by statute. A post on who are those required parties is at this link. Jessie charged that the failure of the court to have jurisdiction over all persons required to be joined voids the original judgment and all of its subsequent judgments and renders them unenforceable. In other words, the trial court never acquired subject matter jurisdiction.
In the case of Price v. Lisenby-Grundy, an April 16, 2019, decision, the COA rejected Jessie’s position and affirmed. Judge Carlton wrote the majority opinion:
¶26. At no time did Jessie challenge the court’s jurisdiction as to Toni’s original grandparent’s visitation action; nor did Jessie appeal the April 3, 2015 visitation order. [Fn 6] The doctrine of res judicata, therefore, bars Jessie’s attempt to challenge that order on jurisdictional grounds in this appeal. We find that Burgess v. Williamson, No. 2017-CA-00788-COA, 2018 WL 4705709 (Miss. Ct. App. Oct. 2, 2018) [270 So. 3d 1031 (Miss. Ct. App. 2018)], is instructive on this issue. In that case, Burgess appealed a May 9, 2017 contempt order against her based upon the court’s determination that she failed to comply with a final judgment awarding custody and support entered on September 8, 2015. Burgess, 2018 WL 4705709, at *2 (¶¶11-12). Among other issues on appeal, Burgess asserted that the chancery court “erred in assuming jurisdiction” over the matter. Id. at *2 (¶12).
6 We also observe that at no time did Theresa Price or Roy Price object to the chancery court’s jurisdiction on any basis, and neither Roy nor Theresa Price appealed the April 2015 visitation order.
¶27. We held that “if Burgess is trying to argue that the chancery court lacked jurisdiction to enter the original (September 8, 2015) final judgment awarding custody and support, her claim is barred by the doctrine of res judicata.” Id. at *3 (¶17). In so holding, we found that Burgess had defended the original proceeding on the merits, and did not appeal the September 8, 2015 judgment. The same is true in this case. Jessie was a party to Toni’s visitation action, participated in that action on the merits, and never challenged the chancery court’s jurisdiction on any basis. Indeed, Jessie Price’s attorney agreed to the form of the final order of visitation entered in the consolidated proceeding, which specifically provides that “[the] Court has complete and plenary jurisdiction over the subject matter and the parties involved herein.” Finally, Jessie did not appeal the April 2015 visitation order.
¶28. As we explained in Burgess, 2018 WL 4705709, at *3 (¶17), “[a]ny challenge to the . . . court’s jurisdiction should have been taken up in the original proceeding or on direct appeal from the original order.” In this regard, “[o]nce a case is litigated to a final judgment, and no appeal is taken, a party who participated in the original litigation cannot collaterally attack the court’s jurisdiction in a later proceeding.” Id. (citing Phillips v. Kelley, 72 So. 3d 1079, 1084 (¶18) (Miss. 2011) (“[S]ubject matter jurisdiction . . . may not be attacked collaterally.”) (quoting Travelers Indem. Co. v. Bailey, 557 U.S. 137, 152 (2009)). See also Dep’t of Human Servs. v. Shelnut, 772 So. 2d 1041, 1045 (¶13) (Miss. 2000) (“The principles of res judicata apply to questions of jurisdiction as well as to other issues whether the questions relate to jurisdiction of the subject matter or jurisdiction of the parties.”); Restatement (Second) of Judgments §12 (1982) (“When a court has rendered a judgment in a contested action, the judgment precludes the parties from litigating the question of the court’s subject matter jurisdiction in subsequent litigation [subject to three narrow exceptions, inapplicable in this case].”). We find the same principle applies here and bars Jessie’s attempt to challenge the April 3, 2015 visitation order on jurisdictional grounds.
Not much more to say about that.
September 25, 2019 § Leave a comment
Yesterday and the day before we looked at the COA’s decision in Abercrombie v. Abercrombie and Judge McCarty’s dissent. Today we look at the majority’s response to the dissent:
¶26. The dissenting opinion is based entirely on evidence offered at a hearing that was held in the chancery court more than a year after this appeal was filed, and the dissent’s ultimate conclusion is that the chancellor should have taken additional steps when he entered his order “vacat[ing] the original judgment of divorce in this case.” Post at ¶40. However, that order was also entered over a year after this appeal was taken, and it is not the subject of this appeal. Indeed, as discussed above, a panel of this Court previously recognized that the chancellor retained jurisdiction to address the parties’ fraud on the court precisely because that issue “was not the subject of the judgment that Faith challenges in this appeal.”
¶27. In this appeal, Faith challenges the chancery court’s July 26, 2017 order denying her April 14, 2017 motion to dismiss and set aside for lack of jurisdiction. In that motion, Faith did not allege any fraud on the court, and there was no evidence of fraud on the court when the chancellor entered his ruling. Indeed, although the dissent primarily addresses the validity of the Louisiana adoption, there was nothing to indicate any problem with the Louisiana adoption when the chancellor entered the judgment that is now before us on appeal. The only challenge that the chancellor addressed in that ruling was Faith’s claim that the court’s initial child custody determination was void because Mississippi was not Reed’s home state at the time of the original judgment of divorce. For the reasons explained above, Faith’s attack on the court’s jurisdiction to make an initial custody determination was barred by res judicata because the case had already been litigated to a final judgment three times. [Fn 5] Therefore, the chancellor properly denied Faith’s motion.
[Fn 5] To be clear, we agree with the dissent that the issue of subject matter jurisdiction “cannot be waived.” However, it can be finally decided—and beyond re-litigation—when as in this case, it has been resolved in multiple successive final judgments.
¶28. Thus, the dissent is attacking an order that simply is not before us on appeal. The order that the dissent attacks was entered more than a year after this appeal was taken, and there has been no attempt to appeal it. Nowhere does the dissent say that the chancellor committed any error in the order that is actually the subject of this appeal. [Fn 6]
[Fn 6] Although we have considered the post-appeal proceedings in the chancery court and the chancellor’s post-appeal rulings, we have done so only (1) to rule on Faith’s motion to stay proceedings in the chancery court and to stay execution of the chancellor’s orders (which we denied, see supra ¶21) and (2) to determine whether this appeal is moot (we hold that it is not, see supra n.2).
¶29. One final point: the dissent accuses this Court and the chancellor of somehow “usurp[ing] jurisdiction from Louisiana” and “infringing upon [Louisiana’s] authority to govern its own citizens.” Post at ¶48. Nothing could be further from the truth. As far as this Court is aware, no custody proceeding is pending in any Louisiana court, and no judge in Louisiana has attempted to make any custody decision pertaining to Reed. If such an action is ever filed in Louisiana, the chancellor may communicate with the Louisiana judge, the chancellor may relinquish continuing jurisdiction over Reed’s custody, and the Louisiana court may assume jurisdiction. See Miss. Code Ann. §§ 93-27-110 & -202 (Rev. 2018); La. Stat. Ann. §§ 13:1810 & :1815 (Rev. 2007). That may be an appropriate course in the future, but it has nothing to do with the ruling that is before this Court in this appeal. The ruling that is before this Court in this appeal simply rejected Faith’s challenge to the chancery court’s jurisdiction to make an initial child custody determination.
September 24, 2019 § Leave a comment
Yesterday we visited the COA’s decision in Abercrombie v. Abercrombie, in which the majority rejected Faith Abercrombie’s argument that the trial court’s order should be set aside for lack of UCCJEA subject matter jurisdiction. The COA ruled that the issue was precluded by operation of res judicata.
Judge McCarty lodged a strong dissent that bears reading. Here it is:
¶36. The revelation of the extensive fraud that both parents purportedly committed destroys jurisdiction because we have learned for a fact that this case is centered in Louisiana. Since subject matter jurisdiction cannot be waived and cannot be achieved through deception or fraud, I believe we are required to reverse for lack of jurisdiction.
¶37. Our Uniform Child Custody Jurisdiction and Enforcement Act decrees that “[n]o infant shall be adopted to any person if either parent, having been summoned, shall appear and object thereto before the making of a decree for adoption . . . .” Miss. Code Ann. § 93-17-7 (Rev. 2014). The Act establishes that both parents are necessary parties to an adoption proceeding. Id. We know for a fact that this prerequisite of the Act was not complied with because the slow [sic] reveal that the natural father was not made aware of (much less provided consent for) the child’s adoption.
¶38. This was fraud, as even the parties have now belatedly conceded. “When consent for a supposedly ‘uncontested’ adoption is gained by intentionally concealing the identity of a known natural parent from the chancellor, a fraud is perpetrated upon the court.” Doe v. Smith, 200 So. 3d 1028, 1030 (¶1) (Miss. 2016). There was fraud in Doe too, where the natural mother falsified her son’s birth certificate to facilitate his adoption, and this “deception caused the court to grant an adoption to a third party based on false, material representations.” Id.
¶39. Such a fraud thwarted the whole purpose of the Act and the court’s role in following it because “an intentional fraud aimed solely to circumvent a natural parent’s statutorily mandated consent to an adoption undermines the effective administration of justice.” Id. at 1033 (¶17).
¶40. Because the adoption is void based upon fraud, neither of those two people who committed the fraud should have standing. “[A] lack of standing robs the court of jurisdiction to hear the case.” In re Estate of Ivy, 121 So. 3d 226, 243-44 (¶88) (Miss. Ct. App. 2012). Therefore, “any ruling on a case brought by someone who lacked standing is void ab initio.” Id. When a divorce decree is invalidated on grounds of fraud related to child custody and adoption, it follows that all subsequent custody determinations should be deemed void ab initio. We have previously held that “when a divorce is invalidated, all matters decided as a result of the divorce decree are null and void and should be brought in another hearing.” Clark v. Clark, 43 So. 3d 496, 502 (¶25) (Miss. Ct. App. 2010). Such matters to be reversed include the award of “alimony, child custody, and child support.” Id. (emphasis added). When the chancery court vacated the original judgment of divorce in this case, as it was required to do, it should have also vacated all custody determinations stemming from the divorce.
¶41. Our inquiry should end there. A court cannot find that it has jurisdiction over a custody dispute between two adoptive “parents” when the validity of the adoption itself has been shown to be fraudulent. For our courts to assert jurisdiction over a child born to a Louisiana resident, “adopted” by pretense in Louisiana, and who has resided in Louisiana at all times following the so-called adoption, would directly contradict the very purpose of the Act. The UCCJEA, now nearly universal, was enacted among the separate states in part to prevent exactly this forum-shopping.
¶42. The fact that the issue of jurisdiction arises at this late date does not matter because subject matter jurisdiction cannot be waived. Ridgeway v. Hooker, 240 So. 3d 1202, 1208 (¶23) (Miss. 2018). Nor can subject matter jurisdiction be acquired through the passage of time because a party may raise the issue of subject matter jurisdiction at any point, including on appeal. Pierce v. Pierce, 132 So. 3d 553, 560 (¶14) (Miss. 2014). Our Supreme Court has long been blunt that we must examine whether we have jurisdiction because “[s]ubject matter jurisdiction, which is succinctly defined as the authority of a court to hear and decide a particular case, depends on the type of case at issue, and we have the primary duty [to
determine sua sponte] whether a particular case lies within our jurisdiction.” Common Cause of Miss. v. Smith, 548 So. 2d 412, 414 (Miss. 1989).
¶43. The United States Supreme Court agrees this is a core duty of courts. “When a requirement goes to subject-matter jurisdiction, courts are obligated to consider issues [sua sponte] that the parties have disclaimed or have not presented.” Gonzalez v. Thaler, 565 U.S. 134, 141 (2012). This can be frustrating to the Judiciary, as the Court points out, because “[t]he objections [to jurisdiction] may be resurrected at any point in the litigation, and a valid objection may lead a court midway through briefing to dismiss a complaint in its entirety.” Id. As a result “months of work on the part of the attorneys and the court may be wasted.” Id.
¶44. This is unfortunately one such case—where months of effort by the lawyers and the court system end up with a dismissal. Yet we must reverse, and since when we do not have jurisdiction, we should not rule. Accord Common Cause of Miss., 548 So. 2d at 418 (dismissing the appeal sua sponte for lack of jurisdiction because contempt was criminal, not civil); Dudley, 979 So. 2d at 693 (finding a lack of jurisdiction sua sponte due the notice of appeal being filed untimely); Cotton v. Veterans Cab. Co., 344 So. 2d 730, 731 (Miss. 1977) (finding a lack of jurisdiction sua sponte because there was not a final judgment); Bolivar v. Waltman, 85 So. 3d 335, 339 (¶14) (Miss. Ct. App. 2012) (finding a lack of jurisdiction because necessary parties were not included).
¶45. Our prior rulings related to this point do not result in a procedural bar either. In the case addressed supra, we reviewed the nonpayment of child support, not custody, making the issue of jurisdiction under the UCCJEA inapplicable. Burgess v. Williamson, 270 So. 3d 1031, 1035 (¶16) (Miss. Ct. App. 2018). More importantly, the mother’s challenge of subject matter jurisdiction was deemed res judicata because she “answered [the] original petition for custody and child support, she filed a counterclaim, the case proceeded to trial, and the chancery court entered a final judgment.” Id. at 1036 (¶18). The mother in this case took none of these procedural steps taken by the mother in the prior litigation.
¶46. Even if the mother’s claim was barred under the doctrine of res judicata, the law recognizes three exceptions to allow a party to litigate the issue of subject matter jurisdiction after a judgment has been rendered:
(1) The subject matter of the action was so plainly beyond the court’s jurisdiction that its entertaining the action was a manifest abuse of authority; or
(2) Allowing the judgment to stand would substantially infringe the authority of another tribunal or agency of government; or
(3) The judgment was rendered by a court lacking capability to make an adequately informed determination of a question concerning its own jurisdiction and as a matter of procedural fairness the party seeking to avoid the judgment should have opportunity belatedly to attack the court’s subject matter jurisdiction.
Restatement (Second) of Judgments § 12 (1982).
¶47. In the present case, the subject matter was so plainly beyond Mississippi’s jurisdiction that it was an abuse of authority for the chancery court to hear the case. The only connections between the child and Mississippi are that he was born in Mississippi and his “adoptive” father currently resides in Mississippi. Both points fail to secure jurisdiction: the child has lived in Louisiana since shortly after his birth, and because the validity of the “adoption” has been brought into question, we cannot assume jurisdiction based on this fact.
¶48. For Mississippi to assert jurisdiction over this case would be to usurp jurisdiction from Louisiana, infringing upon the State’s authority to govern its own citizens. The child in question was born to a Louisiana resident, was allegedly “adopted” in Louisiana, and domiciled in Louisiana at all times following the “adoption.”
¶49. Further, the Abercrombies’ actions of defrauding and concealing facts from the chancery court deprived the court of the ability to properly make an adequate and informed decision regarding whether it had jurisdiction to hear the case. With the truth concerning the alleged adoption now unearthed, it is clear that our State does not and could not have jurisdiction over the matter.
¶50. Our courts do have continuing jurisdiction over the misrepresentations the parties made in this case because they were submitted to our courts and made within our State. See M.R.C.P. 11. It is a felony to “willfully and corruptly swear, testify, or affirm falsely to any material matter . . . in any court of law or equity . . . .” Miss. Code Ann. § 97-9-59 (Rev. 2014) (emphasis added); see also Miss. Code Ann. § 97-9-61 (Rev. 2014) (penalty of perjury in a non-felony trial not to exceed ten years). While this case should be dismissed for lack of jurisdiction, that does not mean the repeated fraud on our court system should go without penalty.
¶51. For these reasons I must respectfully dissent.
September 23, 2019 § Leave a comment
We all know that subject matter jurisdiction cannot be waived or conferred on a court by consent. The court either has it or does not. And it is often said that it can be raised at any stage of the proceeding, although that is too sweeping a statement, as we will see.
But can the issue of subject matter jurisdiction become res judicata so that, if facts emerge that call it into question later, the issue cannot be raised at that point?
That question was at the center of a recent case before the COA. The procedural history is somewhat convoluted. Faith Abercrombie and her ex, Jonathan, were engaged in lengthy, contentious litigation over their adopted son, Reed. There had been prior judgments adjudicating that Mississippi had jurisdiction under the UCCJEA that had been appealed twice and were affirmed. After the chancellor ruled on March 9, 2017, on various issues, Faith filed a motion to set aside the order and all prior orders touching custody for lack of jurisdiction, claiming that Mississippi was not her son’s home state at any relevant time. When the motion was denied, Faith appealed.
In the meantime, with the appeal pending, Faith’s attorney learned that the adoption had been procured by fraud on the part of both Faith and Jonathan, and disclosed the fact to the court. On December 7, 2018, the chancellor vacated the original judgment of divorce, fined both of them, issued a writ of habeas corpus for the child, and directed the clerk to send copies of its order to the Louisiana adoption court and the district attorney. Faith filed a motion with the COA asking the court to stay execution of the order vacating the divorce, and a panel of the court denied the motion because the December, 2018, order was not the subject of the order appealed from.
In Abercrombie v. Abercrombie, handed down August 20, 2019, the COA affirmed. Judge Jack Wilson wrote for the 9-1 majority:
¶22. Faith argues that the chancery court lacked subject matter jurisdiction to make an “initial child custody determination” under the UCCJEA, Miss. Code Ann. § 93-27-201, because Mississippi was not Reed’s home state. She further argues that all subsequent orders touching on Reed’s custody and visitation are void due to lack of jurisdiction. However, we conclude that Faith is barred from re-litigating this issue, which has been decided in at least three prior final judgments. [Fn 2]
[Fn 2] Although the chancery court set aside the original divorce judgment based on fraud on the court, we conclude that this issue is not moot for at least three reasons. First, even after setting aside the divorce judgment, the chancery court has continued to exercise jurisdiction with respect to Reed’s custody, and Faith continues to contest the court’s jurisdiction to do so. Second, Faith argues that all of the chancery court’s prior judgments and orders touching on Reed’s custody and visitation must be set aside for lack of jurisdiction, including prior orders finding her in contempt and awarding attorney’s fees. However, the chancery court’s December 7, 2018 order only set aside the original divorce judgment, not all of the court’s judgments and orders. Third, if we agreed with Faith that the chancery court lacked jurisdiction, we would also be compelled to reverse and render the award of attorney’s fees that we address below in Part II.
¶23. This Court recently addressed a similar issue in Burgess v. Williamson, 270 So. 3d 1031 (Miss. Ct. App. 2018). In Burgess, the father (Williamson) filed a petition for custody;the mother (Burgess) filed an answer and a counterclaim for custody; the chancery court found that it had jurisdiction and awarded custody to Williamson; and Burgess did not appeal from the final judgment. Id. at 1033, 1037 (¶¶4-6, 18). In a subsequent contempt proceeding, Burgess argued that the chancery court lacked subject matter jurisdiction under the UCCJEA to enter its original judgment determining the child’s custody. However, this Court held that the doctrine of res judicata barred Burgess’s argument. Id. at 1035-36 (¶¶17-18). We explained that “[o]nce a case is litigated to a final judgment, and no appeal is taken, a party who participated in the original litigation cannot collaterally attack the court’s jurisdiction in a later proceeding.” Id. at 1036 (¶17); see also Phillips v. Kelley, 72 So. 3d
1079, 1084 (¶18) (Miss. 2011) (“[S]ubject matter jurisdiction . . . may not be attacked collaterally.”); Dep’t of Human Servs. v. Shelnut, 772 So. 2d 1041, 1045 (¶13) (Miss. 2000) (“The principles of res judicata apply to questions of jurisdiction . . . whether the questions relate to jurisdiction of the subject matter or jurisdiction of the parties.”).
¶24. The same reasoning applies here. [Fn 3] Indeed, whereas Burgess involved just one prior final judgment, this case had been litigated to a final judgment three times before Faith filed the motion that is the subject of this appeal. In each of those prior judgments, the chancellor found that the chancery court had jurisdiction over the parties and the subject matter, and each time the court’s judgment was affirmed on appeal or was not appealed. First, the April 2015 final judgment of divorce specifically found that the court had jurisdiction over the parties and the subject matter. Faith appealed, but this Court affirmed the final judgment of the chancery court because there was no evidence in the record to support Faith’s assertion that the chancery court lacked jurisdiction. Abercrombie, 193 So. 3d at 683 (¶¶10, 12). Second, in June 2015, Faith filed a motion for relief from judgment in which she attacked the chancery court’s jurisdiction. The chancellor denied Faith’s motion in an August 2016 final judgment that (a) again specifically found that the court had continuing, exclusive jurisdiction and (b) clearly noted that it was a “Final Judgment” for purposes of Mississippi Rule of Civil Procedure 54. Faith did not appeal from that final judgment. Third, in March 2017, the chancellor entered an order on issues of custody, visitation, child support, and attorney’s fees. That order again found that the court had continuing, exclusive jurisdiction. Faith did not appeal that ruling either; instead, she waited more than thirty days and then filed yet another motion attacking the chancery court’s jurisdiction.
3 Contrary to the dissent’s assertions, Burgess is not materially distinguishable. In Burgess, this Court addressed Burgess’s argument “that the chancery court lacked jurisdiction to enter the original . . . final judgment awarding custody and support,” and we held that her claim was “barred by the doctrine of res judicata.” Burgess, 270 So. 3d at 1035 (¶17). We noted that even the issue of subject matter jurisdiction is subject to the doctrine of res judicata. Id. at 1036 (¶17). In doing so, we simply reiterated what the Supreme Court had already held in both Phillips and Shelnut, supra.
¶25. Because this case has been litigated to a final judgment three times previously, the chancery court’s jurisdiction to enter its original judgment and initial determination of custody is res judicata. Phillips, 72 So. 3d at 1084 (¶18); Shelnut, 772 So. 2d at 1045 (¶13); Burgess, 270 So. 3d at 1035-36 (¶¶17-18). Therefore, the chancellor correctly ruled that Faith’s challenge to the court’s jurisdiction is barred. [Fn 4]
[Fn 4] Although the chancellor denied Faith’s motion based on the somewhat related concepts of waiver and judicial estoppel, we may affirm on alternative grounds. See Brocato v. Miss. Publishers Corp., 503 So. 2d 241, 244 (Miss. 1987).
Judge McCarty wrote a sharp dissent that we will look at tomorrow.
June 24, 2019 § Leave a comment
Jhonte Wiggins received $350,000 in a personal-injury settlement. Almost all of the money wound up in accounts of his fiancé, Chasity Anderson. Jhonte became seriously ill and died. His mother, Darnice Wiggins, was appointed administratrix of her son’s estate, and, as administratrix, Darnice sued Chasity for conversion. The chancellor granted summary judgment, and Chasity appealed claiming that chancery court lacked subject matter jurisdiction.
The COA affirmed in Anderson v. Wiggins, decided May 14, 2019. Here is how Judge Greenlee’s opinion addressed the issue:
¶8. Anderson argues that chancery court was not the proper court in which to file a claim for conversion. She asserts that the court lacked subject-matter jurisdiction over the claim. “The question of subject matter jurisdiction is an issue of law to which this Court must apply a de novo standard of review.” In re Adoption of J.D.S., 953 So. 2d 1133, 1136 (¶11) (Miss. Ct. App. 2007).
¶9. Our State’s Constitution limits chancery-court jurisdiction:
The chancery court shall have full jurisdiction in the following matters and
(a) All matters in equity;
(b) Divorce and alimony;
(c) Matters testamentary and of administration;
(d) Minor’s business;
(e) Cases of idiocy, lunacy, and persons of unsound mind;
(f) All cases of which the said court had jurisdiction under the laws in
force when this Constitution is put in operation.
Miss. Const. art. 6, § 159.
¶10. The matter before us is a conversion claim. “Although property of which conversion is alleged is in the custody of a chancery court,” Georgia-Pac. Corp. v. Blakeney, 353 So. 2d 769, 772 (Miss. 1978) (quoting 18 Am. Jur. 2d Conversion § 135 (1955)), an action for conversion alone is best heard in the circuit court. But if “there is one issue of exclusive equity cognizance, that issue can bring the entire case within subject matter jurisdiction of the chancery court and that court may proceed to adjudicate all legal issues as well.” Newton v. Brown, 198 So. 3d 1284, 1288 (¶20) (Miss. Ct. App. 2016) (internal quotation marks omitted).
¶11. Wiggins’s complaint only asserts a claim for conversion. She does not indicate any other tort or any other claim for the chancery court to consider. She asserts that the protection of the estate’s assets entitles her to jurisdiction within the chancery court. She contends that Anderson cannot now claim a lack of subject-matter jurisdiction because the chancery court already rendered its decision. But jurisdictional challenges may be raised at any point during litigation, as well as on appeal. Pierce v. Pierce, 132 So. 3d 553, 560 (¶14) (Miss. 2014). Mississippi Rule of Civil Procedure Rule 12(h)(3) provides that “[w]henever it appears by suggestion that the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action or transfer the action to the court of proper jurisdiction.” Additionally, our state constitution determines the ability of appellate courts to reverse a judgment of a chancery court when it lacks jurisdiction:
No judgment or decree in any chancery or circuit court rendered in a civil cause shall be reversed or annulled on the ground of want of jurisdiction to render said judgment or decree, from any error or mistake as to whether the cause in which it was rendered was of equity or common-law jurisdiction; but if the Supreme Court shall find error in the proceedings other than as to jurisdiction, and it shall be necessary to remand the case, the Supreme Court may remand it to that court which, in its opinion, can best determine the controversy.
Miss. Const. art 6, § 147.
¶12. At the summary-judgment hearing, the chancery court discussed the jurisdictional concerns and found that it had jurisdiction over the claim. Specifically, it found that under Wiggins v. Perry, 989 So. 2d 419, 430 (¶28) (Miss. Ct. App. 2008), Anderson could not complain about subject-matter jurisdiction after the court ruled on the motion for summary judgment.
¶13. In that case, Wiggins did not raise the issue of subject-matter jurisdiction until after the chancery court granted summary judgment. Therefore, on appeal, our court was unable to reverse the case on the issue of subject-matter jurisdiction alone. Id. at 430-31 (¶28). We ultimately reversed the decision on other grounds and remanded the case with instructions that it be transferred to the proper court. Id. at 433 (¶47).
¶14. In the present case, the chancery court held:
Now, [the Mississippi Constitution] says a lot. And our case law says even more. In one case . . . it is stated that: “Because a party did not raise the issue of subject matter jurisdiction until after summary judgment had been granted in favor of the adverse party, the reviewing court could only reverse for lack of subject matter jurisdiction where there was also some other trial court error warranting reversal.”
The chancery court found that subject-matter jurisdiction was never an issue before the motion for summary judgment. In her answer to the conversion complaint, Anderson asserted lack of subject-matter jurisdiction as an affirmative defense. But at no point thereafter did she actively pursue that defense. In fact, she never filed any motion based on those grounds. As in Wiggins, without some other error, precedent prevents us from reversing this case on
the issue of subject-matter jurisdiction alone in this situation. [Fn 1]
[Fn 1] 3 Jeffrey Jackson, Mary Miller, and Donald Campbell, Encyclopedia of Mississippi Law § 19:188 (2d ed. 2018) (“Ordinarily, a court of appeals could reverse for lack of subject matter jurisdiction in the trial court even where the parties may not have raised the issue. Section 147 of the Mississippi Constitution provides that the supreme court is without power to reverse where the only error found is ‘want of jurisdiction to render said judgment or
decree, from any error or mistake as to whether the cause . . . was of equity or common-law jurisdiction.’”); James W. Shelton, Miss. Chancery Prac. § 2:7 (2018) (“[T]he Constitution prohibits the Supreme Court from reversing a case where the only error is that the case was brought in chancery court when it should have been brought in circuit court, or vice versa.”); c.f. Waits v. Black Bayou Drainage Dist., 186 Miss. 270, 185 So. 577, 578 (1939) (“Section 147 of the Constitution has no application. It provides that no cause shall be reversed by the Supreme Court on the ground alone of a mistake in the trial court as to whether it is of law or equity jurisdiction. The trouble here is that neither the chancery court nor the circuit court had jurisdiction of this cause, as we will undertake to demonstrate. In the case of Indianola Compress & Storage Co. v. Southern R.R. Co., 110 Miss. 602, 70 So. 703, [704 (Miss. 1916),] [s]ection 147 of the Constitution applied for it was not a question of jurisdiction, but a mistake in jurisdiction.”).
I posted about a circuit judge reforming a deed on June 5, 2019.
March 13, 2019 § Leave a comment
The chancellor takes custody away from your client and awards it to the maternal grandmother, who had pled not only for custody, but also for child support.
On the latter issue the judge held “the issue of child support to be paid by [the natural parents] in abeyance,” and allowed for a review hearing on the issue of child support after six months.
You file a R59 motion, which is denied.
Your client wants to appeal. When do you appeal? (A) Now? (B) Some time after six months? (C) After the court finally rules on child support? (D) When the child has his first holy communion?
The answer is (C), because you can only appeal from a final judgment or from a less-than-final judgment only when the court certifies that there no just reason for delay and directs entry of a final judgment. That’s MRCP 54.
The above scenario is from the COA’s decision in Britt v. Holloway, decided January 15, 2019, in which the court dismissed the appeal for lack of jurisdiction.
The law can sometimes seem to be filled with snares and traps for the unwary, so it is understandable that lawyers sometimes jump into an appeal even when there is no final judgment simply to escape the terror of being too late to appeal.
Oh, and before we leave this, that reference above to holy communion was a red herring. I thought you might want to know.
January 8, 2019 § Leave a comment
Note: this post was edited at 11:00, am to correct a misstatement in the first paragraph that contempt is a R81 matter, not a R4 matter as originally posted. Sorry for the error
It’s a fairly common occurrence that a counterclaim for contempt is filed in a divorce action, or a motion for adjudication of contempt is filed in a pending divorce. As we all know, divorce is a R4 matter, and contempt is a R81 matter, so is new, or different, process required to proceed on the contempt claim?
Here’s what the COA said in Thornton v. Thornton, an August 14, 2018, decision:
¶22. Additionally, regarding Brenda’s assignment of error attacking the chancellor’s ruling on her petition for contempt, we recognize that “[a]lthough contempt proceedings in divorce cases often are filed in the same cause number and proceed with the underlying divorce case, they are held to be separate actions, requiring new and special summons under Mississippi Rules of Civil Procedure 81.” Shavers v. Shavers, 982 So. 2d 397, 402 (¶25) (Miss. 2008). We therefore find that Brenda’s argument regarding the contempt proceedings is not properly before this Court because “the contempt action [is] separate from the divorce judgment cited in the notice of appeal.” Williamson v. Williamson, 81 So. 3d 262, 277 (¶34) (Miss. Ct. App. 2012). We now turn to address Brenda’s other issues before us on appeal.
Shaver is a tad peculiar because it involved a removal to federal court followed by a remand back to state court, and a question about what effect that had on state court jurisdiction. Williamson involves a post-appeal contempt in which the COA ruled that the contempt action was no part of the divorce that had been appealed.
Shaver does cite Sanghi v. Sanghi, 759 So.2d 1250, 1255 (Miss. App. 2000), in which the parties were engaged in a long-dormant divorce case. Mrs. Sanghi filed a pleading to have Dr. Sanhi held in contempt for failure to pay child support, and he was served by certified mail, since he was already before the court in the divorce action via R4 summons. Here is the COA’s discussion:
¶ 24. This takes us full circle back to the question of whether Dr. Sanghi received sufficient notice of the April 13 hearing that underlies the actions at the July 2 hearing. To reiterate, Dr. Sanghi received notice of the first hearing that had been scheduled for March 9. That notice was not a summons sent by certified mail under Rule 4(c)(5), though the “motions” were sent by that procedure. Instead it was a “Notice of Court Setting” sent first class mail by the court administrator. This notice made Dr. Sanghi aware of the need to seek a postponement and presumably also to seek counsel to initiate the removal. The result of the requested delay was that the court administrator then mailed a notice on February 16, 1998, that the new hearing would be on April 13, 1998. There is nothing in the record explicitly confirming that Dr. Sanghi received the second notice, but he does state in his brief that the April 13 date was set at his request. There are several indications in the record and briefs but no direct proof that he was aware of the April 13 setting from the time that he sought a postponement of the March 9 hearing, but he just did not appear. Again, the inadequacy of the record is at the peril of the appellant Dr. Sanghi, so we proceed under the stated assumptions.
¶ 25. We have just described what was done. We now look at what should have been done. Whether the judgment is valid depends largely on the nature of the defects that occurred.
¶ 26. Rule 81(d)(3) requires that a petition or complaint be filed to modify or enforce child support and alimony judgments or to seek contempt. The mislabeling of the initiating pleading is a matter of form and would not by itself create a lack of authority for the court to act.
¶ 27. After the petition is filed, a summons is to issue notifying the respondent of the time and place for an appearance. If an answer to the petition is required, the notice should state that as well. M.R.C.P. 81(d)(4) & (5). Nothing is said about the available means of service, but the rule provides that the procedures “control to the extent that they may be in conflict with any other provision of these rules.” M.R.C.P. 81(d). The implication is that where Rule 81 does not even address a necessary procedure covered in the general rules, then the general provisions apply. Since 81 does not speak to the means for service of summons, it cannot conflict with the general rules that do. Not to be overlooked, though, is that Rule 81 controls the content of the summons. Service on an out-of-state defendant cannot be completed under Rule 4 by sending a summons by regular mail. Had a return envelope to send an acknowledgment of receipt been included and then utilized by Dr. Sanghi, that would have sufficed. M.R.C.P. 4(c)(3)(A). Certified mail service on an out-of-state defendant also is adequate, if the receipt is returned. M.R.C.P. 4(c)(5).
¶ 28. The notice of the April 13 hearing was not a Rule 81(d)(5) summons, though it provided most of the relevant information. The only required information under the Rule is that a party is to be told the time and place for the hearing and that no answer is needed. M.R.C.P. 81(d)(4) & (d)(5). The sample form that sets out the summons also indicates that the case name is to be shown, the suit number, the name of the person being served, and that failure to appear may result in a judgment with monetary or other consequences; the petition that initiated the action also is to be attached. M.R.C.P. Form 1D. These forms are not mandatory, but use of them removes any question of sufficiency under the Rules. M.R.C.P. 84. The notice sent by the court administrator contained all of the information that Form 1D would have contained, except that there was no statement regarding the need for a written response nor any language commanding attendance or warning that failure to appear could have significant consequences. The same day or perhaps the day before, the three “motions” were separately sent by certified mail and received by Dr. Sanghi.
Most often these matters get tried by consent, so there is a waiver of the objection and the parties resolve it that way.
But when you are handling a R4 case in which R81 issues later arise, especially against a pro se litigant, I strongly encourage you to issue that extra R81 summons. It’s worth the extra cost, time and effort.
August 27, 2018 § 4 Comments
The State of Mississippi filed suit in chancery court against a number of pharmacies for fraud and deceptive trade practices in connection with Medicaid reimbursements. The complaint sought the following relief:
(1) an order enjoining the Defendants from continuing the fraudulent, deceptive and/or unfair acts or practices complained of herein, and requiring correcting measures;
(2) an award of compensatory damages to the State in such amount as is
proved at trial;
(3) an award of actual damages;
(4) an award of all civil penalties provided for by statute;
(5) an award of punitive damages;
(6) an accounting of all profits or gains derived in whole or in part by the Defendants through their fraudulent, unfair and/or deceptive acts or practices complained of herein;
(7) a constructive trust of the moneys illegally and impermissibly obtained from the Defendants’ scheme;
(8) an order imposing a constructive trust on and/or requiring disgorgement by the Defendants of all profits and gains earned in whole or in part through the fraudulent, unfair and/or deceptive acts or practices complained of herein;
(9) an award of attorney fees, costs, and prejudgment interest; and
(10) such other and further relief as the Court may deem appropriate and just.
Defendants responded asking that the matter be transferred to circuit court because of the claims for money damages, and because they wanted to protect their right to a jury trial. The State objected.
The chancellor agreed with the defendants
In his order, the chancellor found that, although the State prayed for some equitable relief, the claims primarily involved recovery of actual and punitive damages. In deference to the Mississippi Constitution’s right to a trial by jury, the judge ruled that, when claims are connected to a contractual relationship or are otherwise involve a question of law, the questions of both law and equity are more appropriately presented in
circuit court. The judge held that the main relief sought was legal, and ordered that the case be transferred to circuit court. The State appealed.
In State of Mississippi v. Walgreen Co., et al., the MSSC affirmed. Justice Beam wrote the August 8, 2018, opinion for a unanimous court. The court first addressed and rejected the State’s argument that an injunction sought under MCA § 75-24-9 must be brought in chancery court. It then went on to deal with the transfer from the equity court to the law court. This is the portion of the opinion addressing chancery vs. circuit jurisdiction:
¶29. We recognize the importance of the State’s request for remedies, including an accounting and a constructive trust, which typically require the chancellor’s equitable review, and we certainly do not intend to devalue that importance here. But an application of the State’s equitable claims is not enough to limit jurisdiction to the chancery court; not even through the application of Section 75-24-9. We have held that chancery courts maintain “the discretion to award legal and even punitive damages as long as” their jurisdiction has attached. Southern Leisure Homes, Inc. v. Hardin, 742 So. 2d 1088, 1090 (Miss. 1999). Though, in matters like the one before us today, “it is more appropriate for a circuit court to
hear equity claims than it is for a chancery court to hear actions at law since circuit courts have general jurisdiction but chancery courts enjoy only limited jurisdiction.” McDonald’s Corp. v. Robinson Indus., Inc., 592 So. 2d 927, 934 (Miss. 1991); see also Hardin, 742 So. 2d at 1090; Union Nat’l Life Ins. Co. v. Crosby, 870 So. 2d 1175, 1182 (Miss. 2004).
¶30. We reiterated this position in Era Franchise Systems, Inc. v. Mathis, 931 So. 2d 1278 (Miss. 2006). There, we noted that “equitable claims are more appropriately brought before a circuit court when they are connected to a contractual relationship or other claims tied to questions of law.” Mathis, 931 So. 2d at 1283 (citing Copiah Med. Assocs. v. Mississippi Baptist Health Sys., 898 So. 2d 656, 661 (Miss. 2005); Crosby, 870 So. 2d at 1175; RE/Max Real Estate Partners v. Lindsley, 840 So. 2d 709 (Miss. 2003)). In Mathis, Venit Mathis filed a complaint against multiple defendants alleging various claims, framed as a derivative action on behalf of REP–an organization in which he alleged to have a fifty-percent stake. Like the State in the matter before us, Mathis pleaded several causes of action and prayed for both legal and equitable relief. After the chancery court determined that it would be best to bifurcate the action, leaving the equitable claims in chancery court and transferring the legal claims to the circuit court, the defendants appealed. This Court reviewed the matter and determined that the chancellor had committed reversible error. Mathis, 931 So. 2d at 1283-1284. Following our holding in Crosby (stating that where a complaint seeks both actual and punitive damages, the “remedy is clearly legal rather than equitable in nature,” Crosby, 870 So. 2d at 1179), we determined that the circuit court’s general jurisdiction is better suited to try a case when doubt exists as to whether the claims are equitable or legal. Mathis, 931 So. 2d at 1282 (citing Burnette v. Hartford Underwriters Ins. Co., 770 So. 2d 948, 952 (Miss. 2000)). Finding that Mathis’s action revolved around issues stemming from contractual obligations not met by the defendants, we reversed the chancellor’s decision denying the defendant’s motion to transfer the matter to the circuit court. Id. at 1283.
¶31. Similarly, in the often-cited Crosby case, the plaintiffs brought an action to recover against the defendants for several common-law and statutory claims arising out of sale of insurance policies and allegedly exorbitant premiums. Crosby, 870 So. 2d 1175 (Miss. 2004). Although the plaintiffs requested a constructive trust, an accounting, and injunctive relief, the defendants claimed that the complaint sounded in tort and contract law–not equity–and requested the case be transferred to circuit court. Reviewing the matter on interlocutory appeal, this Court reversed the chancellor’s denial of the defendant’s motion to transfer, and determined that “each and every one of Crosby’s claims, even the equitable claims of unjust enrichment and constructive trust, arise from the sale and alleged breach of an insurance contract.” Id. at 1182. We noted that an argument alleging otherwise ignores the fact that, unless there was a contractual relationship between Union National and Crosby, she would have no claims arising from the sales, administration and service of the insurance policy. . . .The alleged mismanagement and misappropriation of premium money concerns Crosby’s contractual duty to pay for the insurance policy and Union National to provide her coverage. Id.
¶32. This analysis is directly applicable to the State’s claims against the pharmacies. While it is true that the State’s complaint does not plead the facts necessary to establish a breach-of-contract cause of action, we must look to “the substance, and not the form” of the claims in our resolution of a matter. Copiah Med. Assocs., 898 So. 2d at 661. With the State’s single theory of wrongdoing arising from the defendant’s obligations under the Medicaid provider agreements, the State’s decision to omit a breach-of-contract claim in no way affects the complaint’s substance: the claims asserted and the relief requested present legal arguments and legal remedies. Moreover, much like Crosby and Mathis, the heart of the complaint concerns a provider agreement (a contract), its terms, and the parties who failed to abide by the arrangement. While the equitable issues pleaded are relevant and not to be ignored, the legal issues which flowed from the pharmacies’ alleged inflated reimbursement requests predominate the State’s claims and requests for relief. As a result, jurisdiction properly lies in the circuit court.
¶33. Putting aside the State’s requests for restitution, accountings, constructive trusts, and injunctions, the complaint prays for millions of dollars in actual and punitive damages based on the defendants’ alleged unwillingness to comply with the signed provider agreements. Whether the State disagrees that the basis of these complaints sounds in contract is of no moment. Rather, as most of the claims are legal in nature, the circuit court is the appropriate forum to rule on the matter.
¶34. This decision in no way strips the Attorney General of his constitutional authority to pursue an injunction. Rather, it allows the State fully and fairly to pursue all claims against the defendants, while providing the defendants with an opportunity to have those issues presented to a jury.
The State, therefore, should fully and ably proceed with its complaint in circuit court.
I could quibble all day with the “general jurisdiction” vs. “limited jurisdiction” fiction and how it is so unhelpful to this discussion, but I’ll pass and submit to the principle that if the matter is an action for damages, it should go to circuit.
Having said that … <HERESY ALERT> … my question is, “Why, Mississippi, do we continue to put ourselves through this contortion when we could resolve it easily by merging our law and equity courts into one system?” I know that’s heretical, coming especially from a chancellor, but merger of law and equity has worked handsomely in almost all of the other United States for as many as 150 years without jurisprudential armageddon.
In a merged system, we would not have tug-of-wars between circuit and chancery. As many claims for relief as one has could be joined in a single action to be addressed by the court as appropriate.
Some say that would sacrifice the expertise in minor’s issues, probate, and family law that has been accumulated in chancery over the centuries. That is a somewhat valid concern, but I don’t see that the quality of judicial decisions in merged states is significantly less than Mississippi’s. Also, in some jurisdictions where number of judges and caseload are adequate, judges specialize in certain areas such as family law and criminal law, allowing development of expertise.
Some do not want to sacrifice the jobs of sitting chancellors in a merger, but I don’t think that merger would result in the loss of a single judge slot. We would still have the same number of cases to be handled, requiring at least as many judges as we have now.
Others say, “If it ain’t broke …” etc. To that I concede that it ain’t necessarily broke … but is it functioning as efficiently, justly, and equitably as it can and should?
We ought always be ready and willing to discuss and debate the best ways to fashion our court system.