Making Amends
July 8, 2014 § 6 Comments
A recurring mistake that I see lawyers making is to file amended pleadings without complying with MRCP 15. Here’s what the rule says:
(a) Amendments. A party may amend a pleading as a matter of course at any time before a responsive pleading is served, or, if a pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within thirty days after it is served. On sustaining a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), or for judgment on the pleadings, pursuant to Rule 12(c), leave to amend shall be granted when justice so requires upon conditions and within time as determined by the court, provided matters outside the pleadings are not presented at the hearing on the motion. Otherwise a party may amend a pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within ten days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders.
and
(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions, occurrences, or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.
So, you may amend:
- As a matter of course at any time before a responsive pleading has been served, or
- If the pleading is one to which no responsive pleading is permitted and the matter has not been set for trial, then at any time within 30 days of filing the pleading sought to be amended, or
- On whatever terms the court directs, if the court dismisses the pleading for failure to state a claim upon which relief may be granted, or
- By order of the court on a motion to amend.
Many lawyers routinely file amended pleadings whenever the spirit moves them to do so, well after conditions 1 and 2, above, have elapsed. That is wrong, and against the express language of the rule. The requirement to obtain leave of court to modify is mandatory, and a so-called amendment without court authorization is ineffective. Miss. DHS v. Guidry, 830 So.2d 628, 634-635 (Miss. 2002).
What about that language “If the pleading is one to which no responsive pleading is permitted …”? What exactly does that mean? When is a pleading ever not permitted? The COA has interpreted that language to include pleadings to which no responsive pleading is required. See, Faye v. State, 859 So.2d 393 (Miss. App. 2003). That would include most, if not all, R81 matters.
The party seeking an amendment should spell out in her motion the substance of the amendment, and the court should assign a reason why it denies the motion. Price v. Price, 430 So.2d 848 (Miss. 1983). That way a record is made. I would add to the motion language spelling out why granting it will result in no prejudice to the other side. Most lawyers attach a proposed amended pleading as an exhibit to the motion. But remember that attaching it to the motion does not mean that the pleading has been filed as a pleading. After the court grants leave to amend, the pleading must be properly filed and noticed.
Mere filing of a motion to amend does not do the job, as happened in the MSSC case McKnight v. Jenkins, handed down February 24, 2013. A post dealing with this case is here.
It’s has long been a principle of our law that amendments should be freely allowed so that cases can be presented on their merits and fully adjudicated. That does not mean, however, that anything filed in the court file is to be considered a competent amendment. If you want to amend your pleadings, you have to comply with R15, or you might wind up trying less of a case than you really wanted to try.
Connected to the Court
March 28, 2014 § 4 Comments
Lauderdale County Chancery Court implemented electronic filing this year, and it became mandatory March 1. I have informally polled lawyers about their experience with and views of the system. Here is the feedback from my random, unscientific survey:
“I hate it.”
“I’m having trouble signing on, but once I get that straightened out, it should be no problem because I use PACER and file electronically in Alabama.”
“I am still trying to learn it, but so far I don’t care for it.”
“My secretary does it; I haven’t heard anything negative from her.”
“It’s okay.”
“I think it will be fine once I learn how to do it.”
“The categories for pleadings don’t fit.”
“No big deal. It’s the same as federal court.”
“Maybe when I get used to it, it will be good.”
“It’s an improvement.”
“It makes it easier for me to stay on top of my cases.”
“I had to update my computers and internet connection, so that was probably good. I’m getting the hang of it.”
Stay tuned for further developments over here in the far east.
A Complaint by any other Name …
January 22, 2014 § Leave a comment
This from the case of Cornelius v. Overstreet, 757 So.2d 332, 335 (Miss. App. 2000):
¶ 9. In addition, this Court would like to comment to the bar and the trial bench about cases similar in nature which fall within the purview of Rule 81(d) of the Mississippi Rules of Civil Procedure. The initiation of such actions should be by filing “complaints” or “petitions,” and “counterclaims” or “cross-claims” (whichever might be appropriate), not “motions” and “cross-petitions” as was done in this case. See M.R.C.P. 13, 81(d)(1-3), 81(f), and comments to 81(d)(3) and 81(f).
Here’s a link to a previous post that goes into greater detail.
Temporary Setbacks, Part I
December 30, 2013 § 4 Comments
A reader of this blog in N. Mississippi emailed me with an interesting question week before last. He asked whether the following is a common practice in other areas of the state:
I have recently been on the receiving end of opposite counsel filing for divorce on sole ground of Irreconcilable Differences, asking for temporary relief-custody, support, use of home, setting for hearing. I have objected by 12b failure to make a claim for which relief can be granted. We have worked around the 2 cases without necessity of a ruling.
Before proceeding further, I can say that in this district it is a longstanding practice not to allow temporary hearings in cases where the sole ground for divorce is irreconcilable differences. Our thinking is that an ID divorce requires an agreement, either a PSA or a consent, for the court to act, and that absent that agreement no relief is possible. Please note that I am talking only about a complaint on the sole ground of irreconcilable differences, and not: (1) a complaint in which ID is an alternative ground; or (2) where there is a separate count for, say, custody.
The authority of a chancellor in such cases is MCA 93-5-17, which states that “The chancellor in vacation [and presumably during a term] may, upon reasonable notice, hear complaints for temporary alimony, temporary custody of children and temporary child support and may make all proper orders and judgments thereon.”
As far as I can discover, there is no case law on point. Temporary orders are not appealable, so the dearth of decisions is no surprise.
I polled some chancellors to see what the practice is in their districts, and, as one might suspect, the answers are all over the ballpark. Now, before someone opines that “we need to come up with a uniform practice” for temporaries, keep in mind that the statute specifically says that the chancellor “may” grant temporary relief. It has long been the practice that it is discretionary with chancellors whether to allow a temporary hearing at all, and, if so, the form of that hearing (more on that point in Part II). Here is what the various chancellors who responded said:
- “No.”
- “If they allege and show ‘urgent and necessitous circumstances’ I would allow a temporary.”
- “Assuming you are talking about temporary relief relative to custody and support and use of marital home incident thetero, yes we do allow temporary hearings.”
- “I do not allow temporary hearings in ID divorces. The statutory premise for ID is agreement on all issues. I do not think you can expand on what the statute allows. I am sure that someone will opine that it could be done statutorily by ‘consent’ but I would counter that with, the issues tried by consent can be appealed, a temporary cannot. As an aside, it seems when you do a temporary in an ID the court may be tipping the scales one way or the other in the negotiations.”
- “I have never conducted an actual hearing but I have signed agreed temporary orders incorporating the PSA.”
- “[In this district] temp order[s] setting support and custody (at least) are issued in ID divorce cases all the time … to say this is a common practice in our district would be an understatement.”
- “I do not allow temporary hearings on ID only complaints. I would sign [an order adopting] a stipulation between the parties …”
- “No. Never. No justiciable issue.”
That’s about 20% of the chancellors.
If you wind up with a temporary hearing in an unfamiliar district, you would do well to contact a lawyer there who practices in that court and can let you know what to expect.
Twenty-First Century Fossils
November 27, 2013 § 9 Comments
It’s no secret that lawyers do not reinvent the wheel every time they do a pleading, PSA, will, or other instrument. What happens when a client needs a document in a new matter is that one like it is conjured up from the bowels of the computer hard drive (substitute “Cloud” for hard drive if you need to), the names and personal information are changed, tweaks are made to make it fit the new matter’s particular circumstances, and — voila! — the new document is dispatched into the legal universe to do the task it was designated to do.
This process works quite well as long as the attorney (or staff) is vigilant, but sometimes there are embarrassing glitches.
One obvious problem occurs when not all of the requisite changes are made, creating incongruities that can have consequences ranging from comic to tragic.
The type of problem I would like to address, however, is one that I characterize as “fossilization of the hard drive.” It occurs when lawyers time and again have the same erroneous matter in pleadings, PSA’s, or other documents, and, when (again) brought to their attention the lawyers sheepishly admit the error and promise (again) to fix it. But they don’t. Because that error is saved countless times in other documents on the hard drive, and changing it once does not solve the problem.
A harmless example of what I am talking about is the lawyer in our district whose divorce complaints pled grounds thus: ” … guilty of habitual cruel and inhuman treatment as codiciled in MCA 93-5-1 …” That’s hard to eradicate when it appears in 1,000 other complaints stored — and fossilized — on the hard drive. Every time I called it to his attention, he professed he would fix it. After five years or so, he managed to pull it off somehow.
How do you make sure that, as you catch a flaw in your pleadings, or learn the hard way not to include a particular provision in a PSA, or a case comes down mandating that you change a will provision, that you will get it right next time?
Here is a suggested solution. When you save a complaint, or PSA, or will, always add the month and year when it was done as a suffix to the file name. Example: “Henry PSA 08-13” or “Jackson Divorce Complaint 11-13” or “Reed Tom Will 04-12.” As you refine your pleadings, PSA’s, and probate documents, you save them as the most recent, and then, later, when you need a template, you call up the most recent as the best example that incorporates new innovations and eliminates old errors. That way, the old fossils can repose undisturbed until some 22nd-century legal archaeologist stumbles on them.
There is probably a better way to do this that you have discovered and implemented in the intervening years since I passed on from the practice. If so, you can leave them in a comment or email me.
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.
HARD GARNISHMENT LESSON FOR A JOINT ACCOUNT OWNER
May 6, 2013 § Leave a comment
Dorothy Lang and Derrick Higgins were estranged husband and wife. Despite that they were living separate and apart, they maintained two joint bank accounts at the same bank, with Dorothy continuing to use the joint savings account, and Derrick continuing to use the joint checking account.
Derrick got behind in his child support payments to another woman — to the tune of $17,000 — and DHS in April, 2010, froze both joint accounts per MCA 43-19-48, imposing a lien on the deposits. When Dorothy discovered what had happened, her attorney sent a letter to DHS in May, 2010, advising them that the funds were Dorothy’s, not Derrick’s. DHS thoughtfully responded the next day with a letter pointing out that Dorothy was required by statute to file a petition with the court if she wished to challenge the lien.
Dorothy took no action immediately, and on June 17, 2010, DHS received $3,116.69 from the two accounts, no doubt causing Dorothy some economic distress. The date of the disbursement was more than 45 days after the freeze.
Finally, in September, 2010, Dorothy got around to filing a contest to the lien, and, at an evidentiary hearing, produced proof that most of the money seized was, indeed, hers, and not Derrick’s. The chancellor ordered DHS to refund Dorothy $2,000 of the money, and DHS appealed.
In DHS v. Lang, handed down by the COA on April 23, 2013, the COA reversed and rendered. Judge Fair’s opinion for a unanimous court, explained:
¶8. … [A]lthough the statute contemplates an account holder of interest challenging the encumbrance, it does not provide a method to do so. As written, the statute does not require DHS to send notice to joint account holders, and only the obligor is subject to any specific time for filing. Other states, such as Alabama and Texas, have specifically provided for the right of a joint account holder to challenge such an encumbrance and prove ownership of the funds. See Ala. Admin. Code r. 600-3-12-.06 (2011); Tex. Fam. Code Ann. § 157.326 (2001). We conclude that our Legislature intended to acknowledge an account holder of interest’s right to challenge a DHS encumbrance, but it did not create a new mechanism for such a challenge. Instead, the Legislature left that to independent actions, just as ordinary garnishment law does.
¶9. The Mississippi Supreme Court has considered the garnishment of joint accounts. In Delta Fertilizer, Inc. v. Weaver, 547 So. 2d 800 (Miss. 1989), Delta secured a judgment against Weaver, and the circuit clerk issued a writ of garnishment on a joint savings account in the names of Weaver, his sister, and his mother. Before the garnishment was awarded, the mother filed a motion with the court, claiming to be the sole owner of the account. Id. at 801. The mother testified that all the funds belonged to her and that her children’s names were on the account for convenience because she could not handle her own money anymore. Id. Citing Cupit v. Brooks, 237 Miss. 61, 112 So. 2d 813 (1959), the court noted that a joint checking or savings account was subject to garnishment but held that it “should be garnishable only in proportion to the debtor’s ownership of the funds.” Delta, 547 So. 2d at 802-03. The burden rests on each depositor to show what portion of the funds he actually owns, and parol evidence is admissible to show his contributions. Id. at 803.
¶10. Relying on the Mississippi Supreme Court’s decision in Delta, we agree that an account holder of interest may challenge a DHS encumbrance in an independent action and present evidence to prove her contribution to the funds. The depositors are in a much better position than DHS to know the pertinent facts regarding their joint account. And while the DHS Child Support Unit has a legislatively mandated charge to enforce child-support obligations, administratively and through litigation, we do not believe the Legislature intended to dismiss the interest of joint account holders. That being said, a joint account holder must file some formal pleading within a reasonable time. Otherwise, such funds obtained by DHS would always be subject to remittance, preventing the funds from being timely disbursed to impoverished children.
The court then turned to the question whether Dorothy’s letter to DHS or her petition filed nearly three months after the order disbursing funds was effective to regain her funds. The COA answered “no”:
¶12. This Court dealt with an analogous situation in Triplett v. Brunt-Ward Chevrolet, Oldsmobile, Pontiac, Buick, Cadillac, GMC Trucks, Inc., 812 So. 2d 1061 (Miss. Ct. App. 2001). There, a mother, Triplett, held an account with Union Planters and named her daughter as a joint account holder. Id. at 1063 (¶2). A garnishment was issued naming the daughter as the debtor. Id. Although Triplett admitted that she became aware of the attachment within two days of service of the writ of garnishment, but never intervened as a proper party. Id. at 1067 (¶13). After the funds were disbursed to the creditor, Triplett filed a complaint alleging Union Planters was negligent in its failure to notify Triplett that the funds were exempt. Id. at 1064 (¶4). On appeal, this Court explained that the garnishment statute “has been construed to mean that, in order to suspend the execution of the writ of garnishment, a sworn declaration must be filed in the court before the garnishee has answered and paid into court the funds caught by the garnishment.” Id. at 1067 (¶11) (citing Miss. Action for Cmty. Ed. v. Montgomery, 404 So. 2d 320, 322 (Miss. 1981)).
¶13. Here, DHS correctly presumed that all funds in the joint account belonged to Higgins and filed a notice of encumbrance [footnote omitted]. On May 27, DHS advised Lang to file a petition with the court pursuant to section 43-19-48 in order to object the encumbrance. While we disagree that Lang was required to file pursuant to section 43-19-48, she failed to file any petition to the court before the funds were disbursed. Further, Lang presents no reason for her delay. “A letter is not the equivalent to a sworn declaration filed according to the relevant statute. It is too little, too late.” Triplett, 812 So. 2d at 1067 (¶12) (internal citation omitted).
Parting thoughts …
- I wonder whether Dorothy now thinks it was worth the few extra bucks she saved to keep that joint account open with her n’er-do-well estranged husband. [Incidentally, the COA opinion points out that Derrick owed Dorothy back child support also. Ouch.].
- Don’t sit on a case like this. File something right away, even if it’s wrong. You can always amend later, and you can continue to negotiate and talk with pleadings filed. Here, the five-month delay was fatal to Dorothy’s claim.
- This may seem like a rare case, but I actually have had a couple of cases where the question was raised about the rights of joint-account owners. They were resolved, but you never know when yours will not be.
WHOSE ACCOUNT IS IT, ANYWAY?
April 15, 2013 § 2 Comments
Remember that every pleading in an estate, guardianship and conservatorship must be signed by the fiduciary, and not the attorney or anyone else. And that includes “accounts and reports.” That’s what UCCR 6.13 expressly states.
In your mad frenzy to avoid a show-cause order, it sometimes seems expedient to bypass that sluggish fiduciary altogether and just do it yourself, but if you sign that motion, or that account, or that inventory, you have really accomplished nothing. It’s the fiduciary who is on the line, and her name needs to be on the dotted line.
And, although it is the fiduciary’s account, strictly speaking, you stand to suffer the slings and arrows of outrageous fortune yourself if the case is delinquent. UCCR 6.17 says, “If, without cause, an attorney fails to file accountings or other matters in probate cases … after being so directed in writing by the Court, the Court may consider such misconduct as contempt.”
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.
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