No Appeal from an “Interim” Judgment
March 25, 2014 § Leave a comment
Frank Lewis is a name you might recall from a previous post. I posted about his case in a post entitled Guardian or Conservator?, back in 2011. Mr. Lewis was the indoividual for whom an adult guardianship was established in chancery court, and the COA reversed for failure to comply in all respects with the statute vis a vis joinder of relatives. The case was remanded for further proceedings to cure the defects and then to determine the need for a guardianship.
Mr. Lewis died, however, during the pendency of the appeal, which was not taken into account by the COA opinion, although a suggestion of death had been filed. His death, however, did not end the family- controversy-riddled matter.
The executor of Lewis’s estate filed a petition with the trial court to recover all of the attorney’s fees that had been paid out by the guardianship, totalling some $15,000, since the guardianship had been reversed on appeal. The attorneys against whom the petition was filed responded with a counterclaim under the Litigation Accountability Act (LAA) asking for attorney’s fees incurred in defending the executor’s action.
The chancellor ruled that the guardianship had, indeed, been necessary to tend to Mr. Lewis’s business. All parties then agreed that the court’s ruling rendered the executor’s claim for recovery of attorney’s fees moot.
That left the LAA counterclaim. The chancellor deferred a decision on the LAA to determine whether the executor’s action had been frivolous, and to consider proof of the actual damages incurred in defending it. He set the hearing for a future date.
The executor asked for an interlocutory appeal, and the court granted a recess to allow the parties to discuss it, without any result of record.
Several days later, the chancellor entered a two-page judgment entitled “Interim Judgment,” adjudicating the necessity of the guardianship and ruling the executor’s claims moot, but not adjudicating the LAA counterclaim. On the face of the Interim Judgment, the words “THIS IS A FINAL JUDGMENT” had been stricken through in ink [Note: The court in that district requires the stricken language to appear on the face of all final judgments].
The executor (referred to by the COA as “Junior”) appealed. In the case of Estate of Frank Lewis: Lewis v. Harvey and Logan, handed down March 18, 2014, the COA found that it lacked jurisdiction on familiar grounds. Judge Maxwell wrote for the court:
¶13. We employ a de novo standard in reviewing jurisdictional issues. R.A.S. v. S.S., 66 So. 3d 1257, 1259 (¶10) (Miss. Ct. App. 2011) (citing Calvert v. Griggs, 992 So. 2d 627, 631 (¶9) (Miss. 2008)). Although not raised by either party, we must examine the finality of a judgment on our own initiative. Id. (citing M.W.F. v. D.D.F., 926 So. 2d 897, 899 (¶4) (Miss. 2006)).
¶14. “As a general rule, only final judgments are appealable.” Maurer v. Boyd, 111 So. 3d 690, 693 (¶11) (Miss. Ct. App. 2013). See also Miss. Code Ann. § 9-3-9 (Rev. 2002); Miss. Code Ann. § 11-51-3 (Rev. 2012); M.R.A.P. 5. “A final, appealable judgment is one that ‘adjudicates the merits of the controversy [and] settles all issues as to all the parties’ and requires no further action by the trial court.” Maurer, 111 So. 3d at 693 (¶11) (quoting Walters v. Walters, 956 So. 2d 1050, 1053 (¶8) (Miss. Ct. App. 2007)). “When all the issues in a case or claims against all the parties are not resolved in a judgment, no appeal of right can be taken.” Thompson v. True Temper Sports, Inc., 74 So. 3d 936, 938 (¶6) (Miss. Ct. App. 2011) (quoting Williams v. Bud Wilson’s Mobile Home Serv., 887 So. 2d 830, 832 (¶5) (Miss. Ct. App. 2004)).
¶15. It really cannot be argued that an order labeled “Interim Judgment” is a final, appealable judgment—particularly when the language “THIS IS A FINAL JUDGMENT” has been scratched out and initialed by the judge, and the judge has apparently not ruled on a pending issue. While there are exceptions to the final-judgment rule—including obtaining permission to pursue an interlocutory appeal under Mississippi Rule of Appellate Procedure 5 or appealing from a Mississippi Rule of Civil Procedure 54(b)-certified final judgment—none are applicable here. [Foontnote omitted]
¶16. Because there is no record evidence that the issue of attorneys’ fees incurred defending Junior’s allegedly frivolous petition was ever resolved, the “Interim Judgment” is not final and appealable. So we must dismiss for lack of jurisdiction.
Nothing really earth-shattering here. It’s just a different spin on a theme we’ve visited fairly frequently over the past couple of years: that a judgment disposing of fewer than all of the issues is not a final, appealable judgment.
Nobody asked me, but I’m going to offer my view that if the document had been styled merely “Judgment,” and the words “THIS IS A FINAL JUDGMENT” had not been stricken, the same result would apply. And that’s so even if the chancellor had given the green light for an interlocutory appeal. All of that is so because the order entered disposed of fewer than all of the pending issues, and the court did not make any specific findings as to why there was no just reason for delay in entry of a judgment, as required by R54(b). You might see it differently.
Subjecting One’s Self to the Jurisdiction of the Court
March 12, 2014 § 2 Comments
The MSSC case of Pierce v. Pierce, handed down February 20, 2014, includes a couple of pretty important points of law that you should be aware of in your chancery practice.
Martin and Star Pierce were married in 2000, and lived in Harrison County, Mississippi. They separated, and Martin filed for divorce in the State of Washington in 2007. Since the Washington court had no personal jurisdiction over Star, it granted a divorce only.
Martin later filed an action in Harrison County seeking partition of the parties’ jointly-owned home and settlement of the parties’ financial obligations incurred during the marriage. Star counterclaimed for equitable distribution, alimony, and attorney’s fees.
The chancellor equitably divided the marital estate, including Martin’s military retirement, and awarded Star alimony and attorrney’s fees.
Martin appealed, complaining (1) that the Washington judgment was res judicata as to Star’s claims for equitable distribution and alimony, and (2) that, since he had only requested partition, he had not consensually submitted himself to Mississippi jurisdiction for division of his military retirement.
As for the issue of res judicata, the MSSC said, at ¶ 19, that although the Washington court properly had subject matter jurisdiction over Martin’s divorce action, it lacked personal jurisdiction over Star. A court with personal jurisdiction over only one of the parties in a divorce may not divide the parties’ assets. Therefore, the issues of property division and alimony were not res judicata by virtue of the Washington judgment, and the Mississippi Chancery Court had jurisdiction over those issues.
Note: It happens from time to time that a party, unhappy with a Mississippi temporary order or separate maintenance order, or with the slow progress of his case, or lacking viable grounds, moves to another state or jurisdiction and obtains a divorce. That does not deprive Mississippi of jurisdiction to adjudicate all of the other issues within its territorial jurisdiction that are pendant to a divorce, such as equitable distribution, alimony, child custody, child support, and so on, if the court obtains personal jurisdiction. In this case, Martin submitted himself to the personal jurisdiction of the court, and thus opened the door to the court’s adjudication of all those pendant issues.
A previous post on exactly what constitutes res judicata is at this link.
With respect to Martin’s assertion that his partition suit did not open him to other relief via counterclaim, the MSSC disagreed at ¶ 23: “It is well-established ‘that by filing suit a plaintiff automatically waives any objections he might otherwise have on grounds of personal jurisdiction to counterclaims presented against him in the suit'” [Citations omitted]
Note: Not a whole lot needs to be said about this particular point. When you invoke the jurisdiction of the court, you open yourself to any and all claims and actions that the other party has against you, both arising out of the same subject matter as the original suit (MRCP 13(a)), as well as any not arising out of the subject matter of the original suit (MRCP 13(b)).
You should read the court’s opinion. Its rationale and the authority are both something you can use in your library of helpful authority.
No Place Like Home
November 19, 2013 § Leave a comment
UCCJEA jurisdiction begins with a determination of the home state of the child. MCA 93-27-102(g) says:
“Home state” means the state in which a child lived with a parent or person acting as a parent for at least six (6) consecutive months before commencement of a child custody proceeding … A period of temporary absence of any of the aforementioned oersons is part of the period.
And most folks stop right there. If the child has been here six months, Mississippi must have jurisdiction. Most cases, however, are not so clear-cut. What about the familiar scenario where the child is taken from Mississippi to another state? How does that affect home state status?
Consider this language from MCA 93-27-201(1)(a):
[A] court of this state has jurisdiction to make an initial child custody determination only if:
This state is the home state of the child on the date of commencement of the proceeding, or was the home state of the child within six (6) months before commencement of the proceeding and the child is absent from the state but a parent or person acting as a parent continues to live in this state …
So, if …
- It’s an original custody proceeding, and
- Mississippi is the child’s home state on the day the action is filed, or
- Mississippi was the home state of the child within six minths before the action is filed, and the child is absent from Mississippi, but a parent or person acting as a parent continues to live in Mississippi, then …
Mississippi does have jurisdiction. And, remember that UCCJEA jurisdiction is subject matter jurisdiction.
In the COA case of Jones v. McQueen, handed down November 12, 2013, the court affirmed the chancellor’s finding that Mississippi, not Alabama, had UCCJEA jurisdiction because Mississippi was where the mother and father had lived together with the child, and had been the home state of the child within six months before the action is filed. Although the child had been removed from Mississippi to Alabama by the mother, the father of the child continued to reside in this state. The facts of the case also established that the mother had periods of absence in Alabama during the six months, but that they were temporary absences, and she actually moved her personal effects out of the father’s Mississippi home when the parties finally separated.
The UCCJEA has many complexities. If you are not thorough in studying the code sections that apply, you might find yourself on the short end of the jurisdictional stick — which is a bad place to be.
Maxims: The Legal Chance to be Heard
October 22, 2013 § 1 Comment
“No one should be condemned without a legal chance to be heard.”
This concept is so fundamental to our notions of due process that it almost goes without saying. Judge griffith expounded on it this way:
This maxim is so clearly founded in natural justice that even savages would understand it, and every decent modern government observes it as an indispensible principle of constitutional right. A decree rendered in its absence is utterly void, as it ought to be. A decree in personam cannot be rendered without a personal appearance or without personal notice sereved within the territorial limits of the state, and a decree bearing upon personal property situated within the state but owned by a non-resident is not valid unless by some reasonable method to be prescribed by law the defendant is given notice by constructive process, such as notice by publication. Griffith, § 48, p. 50.
The MRCP modified process to allow personal service outside the boundaries of the state.
The principle is found consistently in our jurisprudence. If there is no personal jurisdiction, if there is no notice, the court may not act.
The one exception is MRCP 65 pertaining to temporary restraining orders (TRO) without notice. These are not favored, however, unless the circumstances are of such an emergency and exigent nature that relief must be granted immediately. Even in such cases, however, the TRO may be dissolved upon motion of the enjoined party on only two days’ notice, and in no event may extend by the initial order for more than ten days.
Venue in Divorce and the Accompanying Child Custody Action
August 15, 2013 § Leave a comment
Venue for fault-based divorces where both parties are residents of Mississippi is in the county where the defendant resides, or in the county where the parties lived when they separated, if the plaintiff still lives there.
Venue for irreconcilable differences divorces where both parties are residents is in the county where either party resides.
Venue for child custody actions brought under MCA 93-11-65 is in the county where the child actually resides, or in the county of residence of the custodial parent, or in the county of residence of the defendant.
The vast majority of divorce complaints include (1) claim of at least one fault-based ground for divorce, (2) claim of irreconcilable differences, and (3) claim for child custody, often pled under MCA 93-11-65. Where is venue in a case such as that? And how is venue affected if one or more of the claims is dismissed?
Those were the questions before the court in Slaughter v. Slaughter, 869 So.2d 386 (Miss. 2004).
Monica and Mitchell Slaughter married and lived together in Chickasaw County. Monica separated and moved to Coahoma County, where she filed a Complaint for Divorce alleging habitual cruel and inhuman treatment, and, the alternative, irreconcilable differences. Apparently, she also sought child custody per MCA 93-11-65. Mitchell filed a motion to dismiss on the ground that the Coahoma County Chancery Court lacked jurisdiction. He also filed his own actions for divorce and custody in Chickasaw County.
The chancellor granted the motion to dismiss as to the fault-ground. He ruled, however, that the Coahoma County court did have jurisdiction over the irreconcilable differences divorce, and over the issue of custody pursuant to MCA 93-11-65(a).
Mitchell contested the irreconcilable differences divorce and asked the court to transfer the case to Chickasaw County, which the chancellor refused.
Mitchell sought an interlocutory appeal, which the MSSC granted.
In a unanimous decision, with Diaz not participating, the court, by Justice Easley, ruled:
- Since Coahoma County was not the proper venue for the fault-ground divorce, the chancellor erred in retaining jurisdiction over the irreconcilable differences divorce only. The chancellor should have dismissed the case in toto, rather than treating it piecemeal (¶29). The irreconcilable differences venue statute may not be used to circumvent the clear requirements for venue in fault-based cases (¶ 30).
- “We find that a proper reading of all three statutes, §§ 93-5-11, 93-5-23 and 93-11-65, does not provide for a custody matter to proceed under § 93-11-65 when a divorce is pending.” (¶33).
- And finally since the chancellor lacked any jurisdiction at all, he could not transfer the case. (¶30).
That’s the pronouncement of the court, and we are bound by it. But there are a couple of points:
I don’t really have a quarrel with the outcome of the case. Both the irreconcilable differences statute and MCA 93-11-65 seem to be pretty slender reeds to support proper jurisdiction in a fault-based divorce. But what, exactly does MRCP 82(c) mean? You can read it for yourself and lay awake tonight pondering it. The Slaughter opinion did not address it.
As to number 3, the obvious question is what in the world does MRCP 82(d) mean when it says that “When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court … shall transfer the action to the court in which it might properly have been filed …”? The legislature addressed this conundrum in 2005, when it amended MCA 93-5-11 to provide that “Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.” That would seem to cover that. Ironically, Justice Easley penned the decision in Heritage Realty, Inc. v. Estate of Boles, 947 So.2d 238 (Miss. 2006), reh. den. February 8, 2007, which ruled that an estate opened in the wrong county must be dismissed, and may not be transferred. Again, what in the world … etc.
I guess what you need to bear in mind about this case is in contested divorces that the jurisdictional sun around which all of the other planetary issues will revolve, including custody, support, equitable distribution, etc., will be the fault-based divorce. Venue in a divorce is jurisdictional. That means that it will be heard in the county where the defendant resides, or in the county where the parties lived when they separated, if the plaintiff continues to reside there.
Parties in Adoptions
August 6, 2013 § Leave a comment
It’s obvious that the natural parents and adopting parents are necessary parties in adoption cases. But when you read MCA 93-17-5, you will see that the scope of persons to be included is considerably greater.
The statute requires that the following persons be joined by process or by consent to the adoption:
- the parent or parents, even though one or both are under twenty-one; or
- if both parents are dead, then any two adult kin of the child within the third degree; or
- if both parents are dead and an adult kin of the child has “possession” of the child, then that party must be joined or must consent; or
- the guardian ad litem of an abandoned child, where it is alleged that the parents’ whereabouts are unknown after diligent search and inquiry; or
The statute goes on to say that “In addition,” the following shall be made parties:
- person(s) having physical custody of the child, except foster parents via DHS.
- any person who had been awarded custody of the child by a Mississippi court with jurisdiction;
- the “agent of the county [DHS} that has placed the child” in foster care by agreement or court order;
A consent “may also be executed” and filed by an authorized representative of a “home to whose care a child has been delivered.”
Subsection (2) includes the important requirement that: “The child shall join in the petition by its next friend.”
If the child is more than 14 years old, subsection (4) requires that the child execute a sworn or acknowledged consent, or be joined by service of process.
If the child was born to parents who were not married to each other, the father has no right to object unless he has demonstrated within 30 days after the birth of the child “a full commitment to the responsibilities of parenthood.” Note that the language of the statute only says that the unwed, irresponsible parent has no right to object; it does not say that he is not entitled to notice, although it can be argued that notice is superfluous if he has no standing to object. Determination of the father’s rights may be made in a separate proceeding, pursuant to MCA 93-17-6.
In the recent case of Little v. Norman and DHS, decided July 23, 2013, the COA noted that a grandparent with custody who is required to be joined in the adoption may, nonetheless, have no right to stop it. The sourt stated in ¶16 that: “Mississippi Code Annotated section 93-17-5(1)(ii) (Rev. 2004) provides that certain people ‘shall be made parties to [an adoption] proceeding[,]’ including ‘[a]ny person to whom custody of such child may have been awarded by a court of competent jurisdiction of the State of Mississippi.’ Even so, the Mississippi Supreme Court has held that although a grandfather who was the legal custodian of a child was a necessary party to an adoption, his status did not provide him with ‘the prerogative of consenting to the adoption and by corollary, withholding consent and thereby thwarting the adoption.’” Martin v. Putnam, 427 So. 2d 1373, 1376 (Miss. 1983). And, by way of further explanation, continued in footnote 6 on the same page: “What purpose did the legislature intend by designating parties to an adoption proceeding whose consent was not necessary to its validity? We are of the opinion the legislature’s intention was to bring into the suit those persons most likely to be familiar with the background and needs of the person sought to be adopted so they could give testimony concerning his or her best interest. . . . This of course, accords with our many decisions concerning children wherein we have stated that the best interest of the child is paramount. The designated parties thus become witnesses concerning the facts known to them to aid the trial court in its solemn determination of whether to grant or deny an adoption. We think the testimony from those who are close kin to a child is most significant because, in theory, they love the child best and would give truthful testimony as to the child’s best and enduring interest.” Id., at 1376-77.
I stress with lawyers that it’s better to have to take an extra step in an adoption to get it right than to have to face a motion to set it aside at a later date. Lack of jurisdiction over all the necessary parties is one of those flaws that can be fatal.
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.
Relief Beyond the Pleadings
July 3, 2013 § 1 Comment
How far can a chancellor go to effect complete relief between the parties when there is no pleading specifically praying for the relief granted?
That was one of the questions before the COA in the case of Stasny v. Wages, decided June 25, 2013.
Lori Stasny had filed a petition to modify child support and asking the court to order her ex, John Michael Wages, to pay college support for the parties’ daughter, Sarah. The petition was one of several filed between the parties post-divorce, in which each sought to have the other held in contempt, and included a pleading in which Stasny sought to terminate Wages’ parental rights, a pleading in which Sarah joined as a party.
In the course of the hearing, Sarah testified that she had “other priorities” that she she considered more important than her relationship with her father, and that she had refused to speak with him at her high school graduation. She added that she had not visited her father in more than two years.
The chancellor ruled that Sarah’s estrangement from her father was extreme enough to warrant cessation of his support obligation, and he took the issue under advisement, allowing Stasny time to file a brief. Wages filed a motion to conform his pleadings to the proof to add the issue of termination of support. The chancellor granted the motion. Ultimately the chancellor terminated Wages’ duty to support the child, and Stasny appealed.
The COA affirmed the chancellor’s decision that Sarah was estranged from her father to the extent that he should be relieved of the support obligation. As to the termination of child support being outside the scope of the pleadings, Judge Fair’s majority affirming opinion set out the rationale:
¶16. Stasny next argues the chancellor erroneously granted Wages relief he did not request in his response to her petition. But procedurally, the fact that Wages did not specifically raise the issue of termination of his support obligation in his response is immaterial. See Evans v. Evans, 994 So. 2d 765, 772 (¶23) (Miss. 2008) (holding chancellor’s order that directed the parents be responsible for a child’s financial obligation “without either party raising the issue in their respective pleadings is not a procedural concern”). By petitioning to cite Wages for contempt and to modify the settlement agreement to include child support, Stasny submitted the issue of Wages’s financial support of Sarah to the chancellor—and this submission “include[d] all matters touching on that subject.” Brennan v. Brennan, 638 So.2d 1320, 1325 (Miss. 1994). Further, at the conclusion of the hearing, both Stasny and Wages moved for the pleadings to be amended to conform to the evidence presented at the hearing, which included evidence that Sarah’s actions amounted to forfeiture of her father’s financial support. So the issue of terminating support was properly before the chancellor.
¶17. Stasny also asserts the chancellor lacked authority to terminate Wages’s financial obligations towards Sarah because those obligations—in particular, the obligation to contribute to Sarah’s college trust fund—were based on a contract between Stasny and Wages. While Mississippi law does favor honoring the contractual agreements entered as part of divorce settlements and takes a “dim view” of attempts to modify them, Weathersby v. Weathersby, 693 So. 2d 1348, 1351 (Miss. 1997), these agreements are “quasi-contracts.” Varner v. Varner, 666 So. 2d 493, 496 (Miss. 1995) (citing Grier v. Grier, 616 So. 2d 337, 340 (Miss. 1993)). In contrast to a contract, “the chancellor always has the discretion to modify the [divorce] decree’s terms, and all such decrees are subject to the court’s approval.” Arrington v. Arrington, 80 So. 3d 160, 164 (¶14) (Miss. Ct. App. 2012) (citing Varner, 666 So. 2d at 496-97).
¶18. Stasny, at least implicitly, recognized the quasi-contractual nature of the settlement agreement. Stasny and Wages had already sought the chancellor’s approval to modify the settlement agreement once in 2008. And in her 2010 petition, it was Stasny who asked the court to modify the settlement agreement. Though Stasny had argued a material change in circumstances warranted modifying the agreement to increase Wages’s child support, the chancellor instead found a material change in circumstances—namely, the attempt to terminate Wages’s parental rights—warranted a termination of support. See Varner, 666 So. 2d at 497 (holding that, in order to modify an agreement incorporated into a divorce decree, there must be a material change in circumstances). Because we affirm the chancellor’s decision that Wages in under no obligation to pay child support or other expenses, we need not address Stasny’s final argument—that the chancellor erred by not requiring Wages produce to her his Rule 8.05 disclosure form, which he had presented to the chancellor in camera. See UCCR 8.05.
¶19. In Markofski v. Holzhauer, 799 So. 2d 162, 166-67 (¶¶21-24) (Miss. Ct. App. 2001), an ex-wife asked the court to enforce a voluntary agreement by her ex-husband to pay for his stepchild’s college expenses, an agreement that was part of their divorce settlement. The chancellor found the stepfather had no financial obligation to pay, in part because of the stepdaughter’s behavior towards her father. Id. at 167 (¶24). The chancellor “found that under the present circumstances, it would be unreasonable to require a man to pay for the college education of a former stepchild who accused him of molesting her, charges of which he was eventually acquitted.” Id. And relying on Hambrick, this court found no abuse of discretion. Markofski, 799 So. 2d at 167 (¶¶24-25) (citing Hambrick, 382 So. 2d at 477). While the facts here are not as egregious as the accusation in Markofski, the chancellor found that under the circumstances in this case—Sarah’s participation in the proceedings to terminate her father’s parental rights, coupled with her refusal to visit him—it would be unreasonable to enforce the provision in the divorce decree that her father pay into her college trust account.
¶20. Because there is evidence supporting the chancellor’s decision to terminate Wages’s financial obligations, we find no abuse of discretion and affirm.
A lot to chew on here, quasi contracts and all.
But the point is that when all of the parties are assembled and within the jurisdiction of the court, and the judge makes a fundamental ruling that affects the relationship among the parties, the chancellor should have the authority to reach out and effect complete relief. Our chancery courts are still courts of equity, according to the Mississippi Constitution. The MRCP did not erase the great maxims of equity from our jurisprudence. Here are two that would appear to be particularly applicable here:
- Equity will not suffer a wrong without a remedy; and
- Equity delights to do complete justice and not by halves.
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.
The Better Chancery Practice Blog 