Jurisdiction | The Better Chancery Practice Blog

SELF-INFLICTED DISMISSAL

April 24, 2013 § Leave a comment

The COA case of Maurer v. Maurer, handed down April 9, 2013, calls our attention yet again to the phenomenon of the self-represented parties and the imaginative ways that they can inflict damage on their interests using the legal system for that purpose.

Raven and Michael were divorced in 2006. Commencing in 2007, they engaged in a long-running battle over custody and visitation in which allegations of sexual abuse were made, a GAL was appointed, a termination of parental rights action was filed, custody orders were entered bouncing the children from one parent to the other, and, finally, a hearing was held in 2011, on the termination of parental rights, pleadings for modification of both visitation and child support, and multiple contempt allegations.

The chancellor ruled against Raven’s termination request and found Michael in contempt for failure to pay child support. But the judge did not adjudicate the amount of the arrearage or the amount of reduction in child support Michael should have; instead, she ordered the parties to submit proposed findings of fact and conclusions of law on those issues.

Raven filed a pro se appeal. Michael is listed as pro se in the appeal, also.

Just for fun, let’s have a little quiz on how the COA ruled. Multiple choice, pick the likely outcome:

(A) The appeal is dismissed because this was an MRCP 81 action at trial, and MRCP 81 is hopelessly outdated and anachronistic and too complicated for pro se litigants to comprehend;

(2) The appeal is dismissed based on MRCP 44.1, determination of foreign law; or

(x) The appeal is dismissed because the chancellor’s “final judgment” adjudicated fewer than all of the contested issues, and there was no certification per MRCP 54(b).

If you guessed (x), you’re right. As the court’s opinion, by Judge Maxwell, stated, although the chancellor adjudicated “the vast majority of disputed issues,” there were matters left unaddressed, so there was no final, appealable judgment, and the COA has no jurisdiction unless there had been a certification under MRCP 54(b), or Raven had gotten leave to file an interlocutory appeal, which (surprise, surprise) she did not do.

The only remarkable thing to me about this case is how people, heedless of the legal harm and expense they can inflict on themselves, persist in pursuing complex legal matters pro se. We’ve seen many cases over the past several years where the R54(b) snare tripped even skilled lawyers; how is a lay person to know how to negotiate these shoal waters? As I have observed many times, I have never seen a pro se litigant walk out of the court room in better shape than when he or she walked in. Raven went to a lot of expense in this appeal for nothing.

CONSTITUTIONALLY UNPROTECTED FATHERS

April 9, 2013 § 2 Comments

If you do any adoption work, the case styled In the Matter of the Adoption of a Minor Child, A.S.E.L.: V.S.P v. M.J.W. and M.S.L., decided by the COA on April 2, 2013, is one you should be familiar with.

The facts are somewhat involved, but the essence is that Vincent, age 19, and Dana (pseudonyms), age 17, had a child together, whom they named Andy, born May 25, 2004. Vincent was not listed as the father on the birth certificate. Shortly after the birth, the young couple split and Dana moved from place to place with the baby. Vincent had little contact with Dana or the child, and he did nothing to help support his offspring.

Through a series of events, Dana’s brother Mark, and his wife, Melanie, obtained custody of Andy in youth court.

Melanie and Mark decided to adopt Andy, and in April, 2005, Dana signed a consent to adoption. Vincent was not made a party to the adoption because paternity had never been established. A judgment finalizing the adoption of the child by Mark and Melanie was entered December 16, 2005.

In September, 2009, nearly four years after the adption, Vincent filed an action to set it aside, claiming that it was void because he was not made a party, despite the fact that everyone involved should have known that he was the father, and that Dana was coerced into executing the consent.

The chancellor denied Vincent any relief, and he appealed. Judge Barnes, for the majority, wrote:

¶21. … we note generally the setting aside of an adoption decree is disfavored in Mississippi. See [In Re Adoption of J.E.B., 822 So.2d 949, at 952] (¶10) (citing Humphrey v. Pannell, 710 So. 2d 392, 399 (¶35) (Miss. 1998)). There is a strong public policy declaration in Mississippi’s adoption statutes for the finality of adoption decrees. In re Adoption of M.D.T., 722 So. 2d 702, 705 (¶12) (Miss. 1998) (citing In re Adoption of R.M.P.C., 512 So. 2d 702, 707 (Miss. 1987)).

¶22. It is well established that the United States Supreme Court has offered constitutional protection to the rights of unwed fathers who have tried to have relationships with their children. Stanley v. Illinois, 405 U.S. 645, 651-59 (1972), held for the first time that under certain circumstances, such as when the putative father has participated in the care and custody of his child, the Constitution protected an unwed father’s parental rights. The Supreme Court clarified the rights of unwed fathers six years later in Quilloin v. Walcott, 434 U.S. 246 (1978), where the Court established the requirement of a meaningful relationship with the child, and not just proof of biology, in a putative father’s attempt to set aside an adoption. In Quilloin, the appellant did not petition for legitimation of his child for eleven years, between the child’s birth and the filing of the adoption petition. Id. at 249. The father failed to seek custody of the child, and never had significant responsibility for the child regarding supervision, education, and care. Id. at 247, 256. The Supreme Court held that the natural father’s substantive rights under the Due Process Clause were not violated by applying the “best interest of the child” standard in this instance, and the adoption was affirmed. Id. at 254, 256. In Caban v. Mohammed, 441 U.S. 380, 392-94 (1979), the Supreme Court concluded the unwed father, who had had custody of his children for several years and thereby established a significant, supportive relationship, should have the privilege of vetoing the adoption of his children, not merely receiving notice.

The court went on to affirm the chancellor’s ruling, holding that if a biological father has failed to establish the quality of relationship described in the US Supreme Court decisions and in MCA 93-17-6, then he has no constitutionally protected right to process and participation in the proceeding, and failure to serve him with process does not void the adoption judgment.

Several observations:

Not a criticism of counsel, but wouldn’t it have been more prudent to get a consent from Vincent? The undisputed facts establish that he was agreeable with the adoption at the time it was in process. If he did not want to admit paternity, language could have been added to the consent to the effect that he did not know whether he was the father, but, in the event that he might be, he consented to the adoption. Lawyers sometimes yield to the client’s desire to do it the easiest way, when a little more trouble now could avoid lots more down the line.
Add some protective language to your consents. Add language to the effect that it was not coerced, was freely given, and that the signer knows and understands that it is irrevocable and can not later be undone. It may not be conclusive in a later attack, but it would certainly buttress the defense of the original judgment.
Ponder measures you can take to immunize your judgment from attack months and even years down the road. Make sure you have tended to every detail, especially jurisdictional detail, in strict compliance with the statutes. In the past few years, it has become increasingly common for parties to agree to one thing, and then to hire another lawyer to try to set the agreement aside. The more armor-plating you add to your judgments (and property settlement agreements and contracts, for that matter), the more likely it is that they will survive attack.

APPEARANCES ARE NOT DECEIVING

April 8, 2013 § 2 Comments

The COA’s decision in Richard v. Garma-Fernandez, handed down March 19, 2013, is one every chancery practitioner should read and appreciate for the ramifications of entering an appearance on behalf of a party.

In this case, Emilio Garma-Fernandez (hereinafter EGF) filed suit against 10 defendants, including Richard, based on a commercial contract. The suit alleged claims for accounting, imposition of resulting and constructive trusts, equitable ownership, injunction, breach of contract, tortious interference with contract, anticipatory breach, and other issues giving rise to damages and attorney’s fees.

Richard was not personally served with process, but an attorney, White, notified EGF’s attorney that she was representing him and five other defendants, and, based on that contact, EGF’s lawyer from that point on sent all communication and pleadings to White on behalf of Richard. After that, when Richard attempted to communicate with EGF’s lawyer, the lawyer directed him to stop because he was represented by counsel.

In due course, White filed a pleading styled “Motion, Answers, Defenses and Counterclaims” of certain named defendants, including the name of Richard (“Richards” in the pleading).

EGF’s lawyer served discovery requests on Richard through White, and White did not respond. The chancellor ruled that any matters not produced in discovery would be inadmissible at trial, and that the matters request to be admitted were taken as admitted. He further dismissed Richard’s counterclaim with prejudice and awarded attorney’s fees to EGF.

EGF then filed a motion for summary judgment against Richard. White asked for more time to respond, claiming she could not locate Richard, that his file was in storage because she had moved her office, and that since Richard was located in Virginia he needed additional time. Nearly two months later the court granted summary judgment. When EGF began collection proceedings in Virginia, Richard filed a limited appearance to contest jurisdiction and for relief from judgment per MRCP 60, claiming that White did not represent him, and among other items of evidence offered White’s affidavit that she had listed him in error as one of the parties she did represent in the action. The chancellor ruled that Richard had entered his appearance, submitting himself to the jurisdiction of the court via attorney White, and denied him relief. He appealed.

The COA affirmed. I quote at length:

¶19. Richard filed a motion for relief from judgment under Mississippi Rule of Civil Procedure 60. Rule 60(b)(4) provides: “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reason[s]: . . . (4) the judgment is void.” A judgment is void if the rendering court lacked personal or subject-matter jurisdiction or acted in a manner inconsistent with due process. Overbey v. Murray, 569 So. 2d 303, 306 (Miss. 1990) (citations omitted).

¶20. The question presented is whether Garma-Fernandez’s judgment was void because the chancery court lacked personal jurisdiction over Richard. For a judgment to be valid, the court must have personal jurisdiction over the parties to the action. James v. McMullen, 733 So. 2d 358, 359 (¶3) (Miss. Ct. App. 1999).

¶21. A court obtains personal jurisdiction over a defendant in one of two ways. Personal jurisdiction is established when a defendant is properly served the summons and complaint under Rule 4 of the Mississippi Rules of Civil Procedure. Personal jurisdiction is also established when a defendant voluntarily enters an appearance. Isom v. Jernigan, 840 So. 2d 104, 107 (¶9) (Miss. 2003) (citations omitted). “One waives process and service . . . upon making a general appearance.” Id.

¶22. Richard was not served with Rule 4 process. However, Richard entered an appearance in this case when White filed a responsive pleading on his behalf. When White filed the responsive pleading on September 24, 2009, Richard voluntarily entered an appearance in the Chancery Court of Oktibbeha County and was subjected to the jurisdiction of the court. The fact that Richard was not served with process under Rule 4 no longer mattered.

¶23. Despite this voluntary appearance through attorney White, Richard could have contested both personal jurisdiction and insufficiency of service of process in the responsive pleading. See M.R.C.P. 12(b)(2), (5). He did not. The result was that the responsive pleading, without the Rule 12(b) defense asserted, waived his right to contest personal jurisdiction. See M.R.C.P. 12(h)(1). “[T]he right to contest the court’s jurisdiction based on some perceived problem with service may yet be lost after making an appearance in the case if the issues related to jurisdiction are not raised at the first opportunity.” Schustz v. Buccaneer, Inc., 850 So. 2d 209, 213 (¶15) (Miss. Ct. App. 2003). “Thus, a defendant appearing and filing an answer or otherwise proceeding to defend the case on the merits in some way—such as participating in hearings or discovery—may not subsequently attempt to assert jurisdictional questions based on claims of defects in service of process.” Id.

¶24. Our inquiry does not end here. Richard argues that a Mississippi attorney cannot give a Mississippi court personal jurisdiction over a nonresident unless that attorney has been hired by the nonresident. Richard’s brief cites, but does not discuss, Rains v. Gardner, 719 So. 2d 768 (Miss. Ct. App. 1998).

¶25. In Rains, this Court acknowledged that an individual can waive process, and an authorized attorney may enter an appearance on his behalf. Id. at 770 (¶7). When this issue is raised, the party that claims an appearance has been made bears the burden of proof. Id.

¶26. One defendant, Ginger Gardner, was represented by an attorney. Id. at 769 (¶5). Gardner’s attorney appeared on her behalf but argued that the other defendant, Tina Clark, whom the attorney did not represent, should also be dismissed from the action. Id. When the court asked the attorney whether he represented both defendants, the attorney definitively stated he only represented one (Gardner). Id. Nevertheless, the attorney renewed his argument that both defendants (Gardner and Clark) should be dismissed. Id. The plaintiff, Hazel Rains, argued that Gardner’s attorney’s actions constituted a voluntary appearance on behalf of Clark. Id. The trial court rejected that argument, and Rains appealed. Id. at (¶¶5-6).

¶27. This Court found that because there was not “even a hint of evidence” that the attorney actually represented Clark, Rains’s argument had no merit. Id. at 770 (¶7). This Court also noted that even if the attorney had made extensive arguments on the unrepresented defendant’s behalf, the attorney could not have entered a voluntary appearance on behalf of the individual if he acted without authority. Id.

¶28. This case is not factually similar to Rains. Here, White filed pleadings on behalf of Richard, and other defendants. The question the chancellor had to decide was whether Richard consented to or authorized White’s representation.

¶29. The chancellor determined that there was sufficient evidence to conclude that Richard consented to and authorized White’s representation. White filed the responsive pleading that specifically named Richard as a defendant [footnote omitted] whom she represented. Garma-Fernandez’s attorney served White with discovery for Richard. There was correspondence from Garma-Fernandez’s attorney to White that discussed her representation of Richard. The court entered an order compelling Richard to respond to discovery, with White acting as his attorney.

¶30. Also, the October 15, 2010 “Joint Motion for Extension of Time to Respond to Motion for Summary Judgment and Motion for Continuance” was filed only on Richard’s behalf. White represented herself as “his counsel of record.” White stated to the court that she had not been able to notify Richard of the motion for summary judgment, and that, because Richard was a Virginia resident, sixteen days was not enough time to make arrangements for him to appear at the hearing. Also, in this motion, White refers to Richard as “her client.”

¶31. We recognize that Richard’s affidavit attached to the limited-appearance motion claims that he never authorized White to act on his behalf. However, an assertion in Richard’s affidavit was contradicted by the evidence. White’s affidavit states that she was not and never had been Richard’s attorney. White’s affidavit, however, was contradicted by her previous assertions to the court. We agree with the chancellor that the credibility of both affidavits was undermined.

¶32. We find the evidence in the record demonstrates that White did, in fact, enter an appearance for Richard, and that she was his authorized representative in this action. Therefore, we find no merit to this issue and find no error in the chancellor’s judgment that found the court had personal jurisdiction over Richard. The chancery court’s personal jurisdiction over Richard was not based on Richard’s awareness of the lawsuit.

¶33. Next, Richard claims that knowledge of litigation is not sufficient to confer jurisdiction. This Court has stated “even actual knowledge of a suit does not excuse proper service of process.” Blakeney v. Warren Cnty., 973 So. 2d 1037, 1040 (¶13) (Miss. Ct. App. 2008) (quoting Mansour v. Charmax Indus., 680 So. 2d 852, 855 (Miss. 1996)).

¶34. As discussed above, the chancery court’s personal jurisdiction over Richard was not based on Richard’s awareness of the lawsuit. The chancellor correctly determined that the court gained personal jurisdiction over Richard through his general appearance. Therefore, we find no merit to this issue.

A few quick points:

If you’re going to enter a special appearance to contest personal jurisdiction, make sure it’s the very first thing you file, even before an “Entry of Appearance” or a motion for more time. Any filing other than a pleading styled “Special Appearance to Contest Jurisdiction” can be construed as a personal, general appearance, even a simple motion for more time or that “Entry of Appearance.”
When you file anything in a court file on behalf of a party, you are bound to represent that party, and the party is bound by your pleadings. Make sure you act within the authorized scope of your representation.
I have seen cases where a lawyer signs off on an agreed order to reset a case in the hope that the party will hire the lawyer, but the fee never materialized. It’s no fun watching the lawyer trying to deny responsibility in the case while the client (innocently or not) claims that he/she is relying on that lawyer. If you inject your name into a case, you are in it until the judge lets you out.
Losing contact with a client can have miserable results for the client. Clients who blame you for their misery can make your life mi$erable.

A UCCJEA TUG-OF-WAR

March 6, 2013 § Leave a comment

Many lawyers believe that the six-month provision of the UCCJEA fixes jurisdiction in the home state of the child. That’s not always the case, though.

Take, for instance, the case of Clifton v. Shannon, decided by the COA June 26, 2012.

Thomas and Dawn Clifton were divorced in DeSoto County in 1999. Dawn was awarded physical custody of their three-year-old daughter, Ashley, and they were to share joint legal custody. Thomas had reasonable visitation.

In December, 2005, Dawn moved to Colorado and remarried. In 2006, they entered into an agreed judgment adjusting visitation to accommodate the move.

In 2010, Thomas filed a petition in the Chancery Court of DeSoto County seeking modification of custody an an adjudication of contempt.

Dawn objected to jurisdiction, pointing out that Ashley’s home had been in Colorado for the preceding four-and-one-half years, and that there were no significant connections to Mississippi that would justify exercise of jurisdiction.

The chancellor took jurisdiction and awarded Thomas custody, based primarily on Ashley’s preference, and Dawn appealed. She challenged both jurisdiction and the chancellor’s substantive ruling.

On the issue of jurisdiction, here’s what Judge Fair’s opinion stated:

¶7. “Whether a court had jurisdiction under the UCCJEA to hear a child-custody dispute is a question of law, which we review de novo.” Miller v. Mills, 64 So. 3d 1023, 1026 (¶11) (Miss. Ct. App. 2011) (citing Yeager v. Kittrell, 35 So. 3d 1221, 1223 (¶¶12, 14) (Miss. Ct. App. 2009)). However, the factual findings underpinning the jurisdiction question are reviewed under the familiar substantial evidence and abuse of discretion standard. See White v. White, 26 So. 3d 342, 346-48 (¶¶10, 14) (Miss. 2010).

¶8. In Yeager, this Court stated “[a] court issuing an initial determination has continuing jurisdiction over the parties; no other court may modify the decree.” Yeager, 35 So. 3d at 1224 (¶16) (citing Miss. Code Ann. § 93-27-201 (Supp. 2009)). However, even if only one party remains in the state, a second state may modify the order if the issuing court finds that neither the child, nor the child and one parent, have a significant connection with the state, and that substantial evidence is no longer available in the issuing state. Only the issuing state may make this determination. Id. (internal citation omitted).

¶9. There was sufficient evidence that Ashley still maintained a significant connection to Mississippi because her father and extended family reside here. In a recent opinion addressing a chancery court’s jurisdiction over a proceeding for modification of custody, the Mississippi Supreme Court held that since the father had continuously resided in Mississippi:

[I]t was within the chancellor’s discretion to determine that both the child and [the father] had a “significant connection with this state.” Therefore, the chancery court properly has retained continuous, exclusive jurisdiction over [the] matter . . . . White v. White, 26 So. 3d 342, 347-48 (¶14) (Miss. 2010).

¶10. The DeSoto County Chancery Court was the court of original jurisdiction. Nothing in the record suggests that the chancellor erred in retaining jurisdiction. In fact, the Colorado court, where Dawn filed another custody action, had declined jurisdiction on the emergency relief that was requested and did not assume jurisdiction.

¶11. Dawn further contends that Mississippi is an inconvenient forum, as “the overwhelming abundance of substantial evidence and witnesses” with regard to the child’s home life are located in Colorado. She cites Mississippi Code Annotated section 93-27-207, which states in pertinent part:

(1) A court of this state which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.

(2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:

(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(b) The length of time the child has resided outside this state;

(d) The relative financial circumstances of the parties;

(e) Any agreement of the parties as to which state should assume jurisdiction;

(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(h) The familiarity of the court of each state with the facts and issues in the pending litigation.

(Emphasis added.)

¶12. While Colorado may have been a more convenient forum for Dawn, the chancery court is endowed with the discretion to make that decision. Prior custody proceedings were conducted in Mississippi, and Ashley spent several weeks in Mississippi during the year visiting her father and family. We find that Mississippi was an appropriate forum and that the chancery court properly retained exclusive jurisdiction.

What you can draw from this aspect of the case is that the chancellor will have broad discretion in making a determination whether as the court of original jurisdiction it should take jurisdiction. You would be wise to make a record invoking as many of the factors set out in 93-27-207 as are applicable and favorable to your client’s side of the case. That discretion is not unfettered; there should be some basis in the record to support it. It seems to me that “The nature and location of the evidence required to resolve the pending litigation …” and “The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence …” would be the key factors on which to focus your efforts.

Another lesson: don’t stop your analysis with where the home state of the child is located. That’s only one of a number of factors.

Remember that only the issuing state may determine whether it should continue to exercise jurisdiction. And MCA 93-27-202(1) provides that the original state no longer has continuing, exclusive jurisdiction after both parents have moved from the original state.

THE EFFECT OF AN APPEAL ON A JUDGMENT

September 11, 2012 § 2 Comments

After Van and Myria Strickland were divorced on October 15, 2010, and after Van had filed an appeal, the chancellor entered an “Order Clarifying Judgment” on December 20, 2010. The order awarded the parties the passive-growth increase in the value of asset accounts that had been divided in equitable distribution and had the effect of adjusting and changing the parties’ respective shares.

In the case of Strickland v. Strickland, decided by the COA August 28, 2012, the court vacated the order, holding that the chancery court lacked jurisdiction to enter the December order. The court said:

“Filing a notice of appeal transfers jurisdiction from the trial court to an appellate court, thereby removing the trial court’s authority to amend, modify, or reconsider its judgment.” Corp. Mgmt. v. Green County, 23 So. 3d 454, 460 (¶13) (Miss. 2009). “In other words, the appeal removes the case ipso facto to the appellate courts.” Id. A party may execute on the judgment if an appeal has no supersedeas bond; however, “the [chancery] court cannot ‘broaden, amend, modify, vacate, clarify, or rehear the decree.’” Id. (citation omitted). “On the other hand, when an appeal has a supersedeas bond it effectively suspends the judgment.” Id. (citing In re Estate of Moreland v. Riley, 537 So. 2d 1345, 1348 (Miss. 1989)). As such, “enforcement of the rights declared by the decree are suspended until the appeal is determined.” Id. “When a trial court’s order broadens, amends, modifies, vacates, clarifies, or rehears a decree, ‘it must be vacated as null and void because it exceeds the subject matter jurisdiction of the lower court.’” Id. (citation omitted). See generally M.R.C.P. 59(e) (“A motion to alter or amend the judgment shall be filed not later than ten days after entry of the judgment.”). See also McNeil v. Hester, 753 So. 2d 1057, 1075 (¶68) (Miss. 2000); Bert Allen Toyota, Inc. v. Grasz, 947 So. 2d 358, 362-63 (¶7) (Miss. Ct. App. 2007).

¶20. Van filed his notice of appeal on November 9, 2010. Myria responded by filing her notice of appeal on November 23, 2010. On December 20, 2010, the chancery court entered an order that altered the judgment of divorce by changing the division of the property regarding the increase in value of the asset accounts to the date of the distribution, rather than the date of the temporary order. Because the chancery court’s December 20, 2010 order impermissibly broadened and amended the previous judgments of the court, subsequent to the filing of Van’s notice of appeal, we find that the December 20, 2010 order must be vacated as null and void. See Corp. Mgmt., 23 So. 3d at 460 (¶13) (“When a trial court’s order broadens, amends, modifies, vacates, clarifies, or rehears a decree, ‘it must be vacated as null and void because it exceeds the subject matter jurisdiction of the lower court.’” (citation omitted)). The chancery court lacked jurisdiction to enter such an order. See id. We further find that the May 27, 2011 order, which was before the chancery court on the motion of Myria seeking to enforce the December 20, 2010 order, is also null and void.

I read the authority to mean that, after the time for reconsideration has passed under the MRCP, and once jurisdiction has been acquired by the appellate court, the chancery court can take no action to alter, amend, clarify, modify, or even enforce the judgment. I have had modification cases and contempts filed on judgments that were appealed. The authority cited by Judge Carlton in Strickland makes it clear that as long as the appellate court has not disposed of the appeal the trial court has no jurisdiction to entertain those kinds of actions.

So this is something you need to factor in when deciding whether to appeal. Can your client wait two to two-and-a-half years for a modification or to enforce the judgment while judgment wends its way through the appellate courts?

MRCP 81 NOTCHES A CURIOUS KILL

September 6, 2012 § 3 Comments

The latest case to fall prey to the predatory MRCP 81 is Pearson v. Browning, decided September 4, 2012, by the COA. We last looked at the vicissitudes of the rule in a post about Brown, et al v. Tate.

The case that brought Pearson v. Browning to the COA began when Dennis Pearson filed a pro se pleading against his ex-wife, Patricia Browning, seeking modification and contempt. Although the procedural history is not entirely clear, it appears that Patricia filed a counterclaim-like pleading charging Dennis with contempt. Both matters came up for hearing on February 2, 2009, when dennis failed to appear, and the chancellor dismissed his claims. The judge ordered that Patricia’s claims be reset for hearing for August 6, 2009. On or about June 10, 2012, however, the court administrator gave notice that the date was again reset, for November 3, 2010. There is no court order setting the November date.

Patricia’s attorney sent Dennis a letter, dated October 15, 2010, notifying him of the November 3, 2010, trial date. Dennis testified that he did not receive it until November 1, 2010, and he filed a letter complaining of the short notice.

On November 3, 2010, Dennis appeared personally pro se and protested the lack of time to prepare his defense and lack of notice of what he was being charged with. He moved for a continuance. The judge denied his motion and pressed on to hearing. On November 18, 2010, the chancellor entered a judgment against Dennis in favor of Patricia in the sum of $53,528.22.

The COA reversed. Judge Griffis’s opinion spells out the basic law of MRCP 81:

¶7. In this case, jurisdiction is governed by Mississippi Rule of Civil Procedure 81(d)(2), because it includes the “modification or enforcement of custody, support, and alimony judgments” and “contempt.”

¶8. A Rule 81 summons is necessary to begin dormant domestic actions listed in Rule 81(d). A Rule 81 summons is not a Rule 4 summons. See M.R.C.P. 4. A Rule 81 summons gives notice to the defendant of the date, time, and place to appear. It does not require a response. A Rule 4 summons requires a written response in thirty days. A Rule 4 summons and a Rule 5 notice have no effect with Rule 81 matters. Sanghi [v. Sanghi], 759 So. 2d at 1253 (¶¶11, 14) (citing Leaf River Forest Prods., Inc., 661 So. 2d 188, 194 (Miss. 1995); Powell v. Powell, 644 So. 2d 269, 273-74 (Miss. 1994)); see M.R.C.P. 5.

¶9. In a matter that requires a Rule 81 summons and does not use a Rule 81 summons, the resulting judgment is void because it is made without jurisdiction over the parties. See Bryant, Inc. v. Walters, 493 So. 2d 933, 938 (Miss. 1986); Duvall v. Duvall, 224 Miss. 546, 555, 80 So. 2d 752, 755 (1955); Roberts v. Roberts, 866 So. 2d 474, 476-77 (¶¶7-8) (Miss. Ct. App. 2003). If an action under Rule 81(d)(1) or (2) “is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent.” M.R.C.P. 81(d)(5). For no additional Rule 81 summons to be required, the order that continues the trial date must be signed on or before the original trial date.

¶10. In this appeal, Pearson argues that Browning failed to comply with Rule 81(d)(5). Specifically, Pearson argues that jurisdiction lapsed because a court administrator’s notice changed the trial date of January 22, 2008 to January 23, 2008; an order dated October 24, 2008 changed the trial date of September 18, 2008 to February 2, 2009; a court administrator’s notice dated June 11, 2010 changed the trial date of August 6, 2009 to November 3, 2010; and Pearson received a letter on November 1, 2010 about the November 3, 2010 trial.

¶11. Our review is limited to events that occurred after February 2, 2009. Because Pearson was the plaintiff prior to February 2, 2009, he cannot properly raise a jurisdictional issue before that date. By the fact that a plaintiff brought his claim, he consents to personal jurisdiction in that court. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 779 (1984).

¶12. Rule 81(d)(5) governs the need for additional summons on the defendant. Before February 2, 2009, Pearson simply was not entitled to a Rule 81 summons because he was the plaintiff.

¶13. On February 2, 2009, the chancery court dismissed all of Pearson’s claims with prejudice. The only claims left before the court were Browning’s contempt claims against Pearson. Hence, after February 2, 2009, Pearson was no longer the plaintiff.

¶14. Whether an additional Rule 81 summons was required and, thus, whether the chancery court had jurisdiction over Pearson on November 3, 2010, depends on: (1) whether Browning’s “motion” was actually a petition for contempt; (2) whether the court administrator’s notice was sufficient to substitute for the lack of a Rule 81 summons; (3) whether Pearson’s case is similar to Bailey v. Fischer, 946 So. 2d 404 (Miss. Ct. App. 2006); and (4) whether Pearson made an appearance, thereby waiving the lack of a Rule 81 summons.

The COA concluded that Patricia’s “motion” was, in fact, a petition for contempt that required Rule 81 notice, that the court administrator’s notice was not adequate to suffice in lieu of a proper MRCP 81 summons, that Bailey is distinguishable, and that Dennis had not waived the jurisdictional issues by making a voluntary appearance. The court reversed the chancery court judgment for lack of jurisdiction.

The four bases listed above for determination of the Rule 81 issue deserve further attention in one or more future posts and will not be addressed further here.

A few observations based on the foregoing:

I call this case curious because, once Dennis had been properly served with the counterclaim, in most districts that I am aware of, he was only entitled from that point to Rule 5 notice. This case seems to say either that a counterclaim requires a Rule 81 process, or that one must be issued if the original plaintiff’s pleading is dismissed. I have never seen this practice in my 29 years’ experience under the MRCP. I admit that I have had trouble understanding the exact procedural chronology of this case, so the problem may be mine. But if my understanding is correct, this case is a major change in Rule 81 practice that you need to study very carefully.
Once again, if the matter that is the subject of your Rule 81 summons will not be heard on the day specified in the summons, you must have the court enter an order on or before (caveat … as to before, see below) the day noticed for hearing continuing the case to a specific date and time in the future.
Although the COA said that the case must be continued ” … on or before …” the date set in the summons, in my opinion only an agreed order of continuance dated before the summons date would be effective. If you unilaterally reset the case by order before the date set in the original summons, you are depriving the defendant of notice and the opportunity to defend.
As long as Dennis was in the status of a petitioner (plaintiff) who had invoked the court’s jurisdiction, he was entitled only to MRCP 5 notice; after he lost his petitioner status, he became entitled to the protection of Rule 81 notice.

As a practice matter, if you were Patricia’s lawyer, you could have avoided most of the above problems had you seen to it yourself that proper continuance orders and notices to the opposing side were presented to the judge and entered in a timely fashion. It’s your case, after all, and judges and court administrators have lots on their respective plates. As I’ve said before, judges and court personnel do their best, but the bottom line is that they are not responsible for the proper handling of your case; you are.

DEVIOUS SEARCH AND INQUIRY

July 26, 2012 § 3 Comments

It avails one naught to get a judgment when all the proper parties have not been given notice and an opportunity to defend.

In 2007, Lottie Woods brought an action for adverse possession of family property. She claimed in her complaint that she was the sole and only heir of her uncle Cornelius, and she published process for him, his unknown heirs, and any other person claiming an interest in the property.

It should have been a clue of problems to come when Corenelius, Jr. showed up at the appointed time and produced a birth certificate showing he was Cornelius’s son. But it all seemed to work out because Lottie and Jr. settled the dispute between them, dividing the property.

The only problem with all of the foregoing is that Lottie neglected to make it known that she had four other siblings who could claim an interest in the property. In other words, as Jr.’s appearance foretold, she could hardly be said to be the “sole and only” heir. Her brother Samson and the other siblings filed an objection and separate litigation to correct the matter.

The COA case of Byrd v. Woods, et al., decided June 19, 2012, is where this particular drama was played out. The case goes off on several other points of law, but the one that I want to focus on here is what happens when a party does not comply with MRCP 4’s requirement that there be diligent search and inquiry before process by publication. Here is what Judge Fair had to say about it, commencing at ¶14:

Mississippi Rule of Civil Procedure 4(c)(4) states that if a defendant cannot be found after diligent search and inquiry, shown by sworn complaint or filed affidavit, he may be made a party by publication. In the 2007 adverse possession action, Lottie filed an affidavit of diligent search and inquiry to obtain a publication summons. However, she must have known that her brother (and her other siblings) would have an interest in the “family land” she sought to adversely possess. They were both potential heirs of Cornelius and believed the property belonged to their family. Further, Lottie and Samson were not estranged, so it is unlikely she could not find him after diligent search and inquiry. But Lottie did not serve Samson personally, nor did she mention or serve her other three siblings.

“The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (¶16) (Miss. Ct. App. 2002). In Caldwell v. Caldwell, 533 So. 2d 413 (Miss. 1988), the supreme court stated “if at any stage of the proceedings it appears that . . . the affidavit was not made in good faith after diligent inquiry, under the facts of the particular case, the process should be quashed by the court . . . .” Id. at 416.

Therefore, Lottie did not obtain service of process on Samson by publication because her affidavit was not made in good faith after diligent inquiry. Neither he nor Lottie’s other siblings are bound by the 2007 judgment.

The lesson here is that when your client avers that he or she has made “diligent inquiry,” or, using the traditional phrase still used by many lawyers, “diligent search and inquiry,” you had better make darned sure that there was indeed a search and inquiry, and that it was in fact diligent. It’s a subject we’ve talked about here before.

Expect the chancellor to inquire behind the affidavit before granting any relief. I always do, and I do not accept a shrug of the shoulders or a couple of half-hearted attempts. In one case before me the woman claimed that the last she knew of her husband he was hanging out at a bar in Wayne County. I asked whether she had gone there to inquire about him. When she said “no,” I ordered her to go to the bar and ask the bartender and some of the habitués whether they knew his whereabouts. Wonder of wonders, she found him and he was personally served.

In the case of Lottie Woods, based solely on what I read in the COA opinion, I would have found that her claim in a pleading intended to influence a judge that she was the sole and only heir when she had living siblings in the area and Cornelius’s son was still alive to have been a fraud on the court. As it was, her “oversight” has cost all of these parties more than five years of wasted time in litigation, and they are returning to the starting line, probably poorer for the trial and appeal attorney fees, and surely not thrilled with the legal process. If only Lottie had sworn truthfully …

MRCP 54(b): GRAVEYARD OF APPEALS

June 11, 2012 § 3 Comments

2011-2012 is shaping up to be the MRCP 54(b) graveyard of appeals. Two more recent COA decisions have deep-sixed appeals where the appellants had taken the case up from a less-than-final judgment, adding to the growing list of dismissed appeals.

In Rebuild America v. Countrywide Home Loans and Bank of NY, decided May 15, 2012, Chancellor Carter Bise granted Countrywide’s and BNY’s motion for summary judgment, which set aside two tax sales to Rebuild America. Countrywide and BNY filed a pleading seeking confirmation of title and dismissal of all other defendants, but before it could be heard Rebuild America filed its appeal. The motion for a judgment was filed September 10, 2010, and has been held in abeyance these past 20 months pending the outcome of the appeal.

To make a long story short, Judge Griffis’s majority opinion once again points out what a lengthening line of cases has painfully established: if the judgment disposes of fewer than all of the issues or fewer than all of the parties, then it is not a final, appealable judgment unless the judge has properly certified it under MRCP 54(b). The appeal must be dismissed for lack of jurisdiction, and that is exactly what happened here … appeal dismissed.

So here, after a twenty-month delay and who-knows-how-much in fees, expenses and costs for the appeal, these folks are right back where they were on September 10, 2010.

In McMullin v. McMullin, decided May 29, 2012, Chancellor Dan Fairly had awarded custody clearly contingent on obtaining further evidence from a physician, and the record was kept open for that purpose. The appellant appealed anyway, with predictable results. The COA on its own motion restated the obvious point that you can not appeal from a less-than-final judgment unless and until the trial judge has certified the case under MRCP 54(b), and that certificate must make findings that comply with the rule. In neither McMullin nor Rebuild America did the appealing party seek or obtain MRCP 54(b) certification from the judge before filing the appeal.

Even with a 54(b) certificate, your appeal may fail if the appellate court finds that judge’s reasons inadequate or missing, or if the appellate court finds that the chancellor abused her discretion in granting it.

More posts on MRCP 54(b) are here, here, here, here, here and here. Ironically, one of those posts is entitled, “Finally, the Final Word on Finality.” At the rate we’re going, though, I suspect that there will be a few more “final words” on this subject before the year is out.

WHO ARE THE PARTIES IN A GRANDPARENT VISITATION CASE?

January 23, 2012 § 3 Comments

Who gets to participate in a grandparent visitation case?

MCA § 93-16-5 states:

“All persons required to be made parties in child custody proceedings or proceedings for the termination of parental rights shall be made parties to any proceeding in which a grandparent of a minor child or children seeks to obtain visitation rights with such minor child or children … ” [Emphasis added]

MCA § 93-15-107(1), dealing with termination of parental rights, states:

“In an action to terminate parental rights, the mother of the child, the legal father of the child, and the putative father of the child, when known, shall be parties defendant.”

MCA § 93-11-65 allows for a custody action against any resident or non-resident, whether or not having actual custody. MCA § 93-27-205(1) provides that in child custody proceedings between states, any person having actual custody must be joined.

From the statutes, then, the plaintiff is required to join the natural mother, the legal father, and the putative father, when known, and any person having actual custody. The requirement of joinder is not subject to the trial court’s discretion, but rather is mandated through the statute’s use of the word shall. Since the statute is in derogation of common law, it must be strictly construed.

Don’t make the mistake of filing your suit against the custodial parent alone. You might just make a wasted trip to the court house.

FINALLY, THE FINAL WORD ON FINALITY

December 13, 2011 § 7 Comments

It makes a big difference whether or not a judgment is final. You cannot appeal from a judgment unless it is a final judgment.

A final judgment resolves all issues, and requires no further action by the court. Scally v. Scally, 802 So.2d 128, 130 (Miss.App. 2001). It puts an end to the action, disposing of the entire controversy on its merits, so that there is no further question for future determination by the court, except perhaps collateral or separate questions, and there is nothing left to be done but to enforce by execution what has been determined. Fortune v. Lee, 725 So.2d 747, 750-51 (Miss.1998).

MRCP 54 says that any judgment that adjudicates less than all the claims or defenses of the parties does not terminate the action and may be revised at any time before entry of a final judgment. Two recent COA cases reiterated the point that you can not appeal from a less-than-final judgment. There is, however, an exception in that the trial judge can make a finding under Rule 54(b) that there is no reason for delay, and direct entry of a final, appealable judgment as to certain issues. For instance, the judge could in a divorce case adjudicate the divorce, custody, child support and equitable division, and enter a final judgment as to those issues while retaining jurisdiction to adjudicate alimony later, when the parties’ financial situation becomes more settled. See, McNally v. McNally, 516 So.2d 499, 502 (Miss. 1987).

MRCP 58 states that “A judgment shall be effective only when entered as provided in M.R.C.P. 79(a).” Rule 79(a) is the provision that entry occurs when the clerk enters the judgment on the General Docket. Thus, signing by the judge alone does not create a final judgment, nor does simply handing or mailing the judgment to the clerk, nor even file-stamping the judgment. MRAP 4(a) requires that an appeal must be filed within 30 days after entry of the judgment. In most counties, the clerk enters the judgment immediately or amost immediately when received, but in some rural counties where clerks are understaffed, a judgment can sit around awhile without being docketed.

Until the judgment is entered on the docket by the clerk, it is subject to revision and even reversal by the trial judge, even where the court has issued a written opinion. The court’s opinion is not equvalent to, nor does it have the same force and effect as, a final judgment entered per MRCP 79(a). See, Banks v. Banks, 511 So.2d 933, 935 (Miss. 1987).

MRCP 5(e)(1) and UCCR 2.02 allow the court to accept papers on behalf of the clerk and to mark them as filed. The rules, however, do not provide that filing of a judgment in this fashion constitues entry of the judgment. Again, until the clerk has complied with Rule 79(a), the document is not effective as a final judgment.

After the final judgment is entered on the docket, its finality is subject only to a motion to reconsider under MRCP 59, or for relief from judgment pursuant to MRCP 60.

Every now and then, a disgruntled party will attempt an interlocutory appeal from a temporary judgment. I had this experience in Clarke County. The supreme court sent me its order to respond, and I did, pointing out that the order from which the appeal was taken was a temporary hearing in a custody matter, and was therefore unappealable. I received an order dismissing the appeal the following week. The two main cases on point are Michael v. Michael, 650 So.2d 469, 471 (Miss. 1995) and McDonald v. McDonald, 850 So.2d 1182, 1193 (Miss.App. 2002).

Where Am I?