How Not to do a R81 Summons

March 19, 2019 § Leave a comment

It should go without saying that the chancellor may not proceed unless and until she has personal jurisdiction over the defendant or respondent. If process is defective, there is no personal jurisdiction, and any action the chancellor takes is of no effect.

That principle came painfully into play when Nancy Edwards sued her ex, Johnny Edwards, for contempt and modification. After hearing the matter, the chancellor found Johnny in contempt, ordered him to do certain acts to purge himself of contempt, and directed a review hearing. A R81 summons was issued directing him to appear at a stated date and time “in the courtroom of the Oktibbeha County Courthouse at Columbus, Mississippi.” When the matter came before the judge and Johnny did not appear, the court found him in contempt and granted other relief. Johnny appealed.

The COA reversed and remanded in Edwards v. Edwards, decided February 12, 2019. Chief Judge Barnes wrote for the unanimous court sitting en banc:

¶9. The first assignment of error raised on appeal is that the summons was defective. As noted, the summons directed Johnny to appear on May 15, 2017, at the “Oktibbeha County Courthouse at Columbus, Mississippi.” (Emphasis added). The Oktibbeha County Courthouse is in Starkville, Mississippi, not Columbus. Columbus is located in Lowndes County. “[A] court may take judicial notice that a city is in a particular county.” Russell v. State, 126 So. 3d 145, 148 (¶8) (Miss. Ct. App. 2013). The record also indicates that the chancery court conducted hearings in various counties throughout its district, including Oktibbeha, Lowndes, and Chickasaw.

¶10. Rule 81 mandates that in certain actions, such as contempt, “special notice be served on a respondent for a hearing with a date, time[,] and place specified.” Bailey v. Fischer, 946 So. 2d 404, 406 (¶7) (Miss. Ct. App. 2006); see also Sanghi [v. Sanghi], 759 So. 2d [1250] at 1256 (¶28) [(Miss. App. 2000)] (The only required information for a summons under Rule 81 “is that a party is to be told the time and place for the hearing and that no answer is needed.”). In Caples v. Caples, 686 So. 2d 1071, 1074 (Miss. 1996), the Mississippi Supreme Court found notice issued to a respondent was defective and “inconsistent with Rule 81,” even though the respondent made an initial appearance, because the notice did not contain the time and place of the hearing and required a written response to the complaint.

¶11. In this instance, the Rule 81 summons failed to specify the correct place for the hearing. [Fn omitted] Reviewing the notice, Johnny would not have known whether to appear at the Oktibbeha County Courthouse in Starkville or the Lowndes County Courthouse in Columbus. Therefore, finding the notice was defective under Rule 81, we reverse the judgment and remand for further proceedings.

An unmentioned corollary is that close is not good enough when it comes to process. The process on its face must comply in every particular with R81 (or R4 if that governs the action in which you are proceeding), and “substantial compliance” is not adequate. The only cure for defective process is voluntary appearance of and participation by the summoned party without objection to personal jurisdiction.

Process to Determine Wrongful Death Beneficiaries

March 5, 2019 § Leave a comment

When you file an action to determine wrongful-death beneficiaries, which type of process is proper: MRCP 4 or 81?

Matthew DeForest filed a Petition for Determination of Heirs-at-Law and Wrongful Death Beneficiaries after his father died in a trucking accident. Joe Alexander, the father’s brother, filed a contest asserting several defenses, among them that the court did not have personal jurisdiction over him because the proper process was not used. The chancellor ruled for DeForest, finding that “Matthew Bryan DeForest is the sole and only heir-at-law of the decedent for the purposes of the wrongful death action.” Alexander appealed.

In Alexander v. DeForest, decided January 31, 2019, the MSSC affirmed. Justice Coleman wrote for the unanimous court (Waller not participating):

¶7. In his first issue, Alexander argues that DeForest’s petition should have been dismissed pursuant to Rule 12(b)(4) for lack of personal jurisdiction because process was insufficient. According to Alexander, he should have been served process consistent with Mississippi Rule of Civil Procedure 81(d)(1) as opposed to Mississippi Rule of Civil Procedure 4(b).

¶8. Alexander argues that the chancery court’s judgment is void because it never had personal jurisdiction over him due to DeForest’s failure to serve him with a Rule 81 summons. Alexander explains that “An action to determine heirship is governed by Rule 81(d)(1) for which a summons substantially conforming with Mississippi Rule of Civil Procedure Form 1(D) should issue to known and unknown respondents.”

¶9. DeForest caused Alexander to be personally served with a summons via certified mail. The summons stated that a response must be mailed or delivered within thirty days from the date of the delivery. However, the record also contains another summons. The second summons is a summons by publication addressed to “The Unknown Wrongful Death Heirs, Executors, Administrators, Devisees, Legatees, or Statutory Beneficiaries . . . of Jeff Underhill, Deceased, and Any and All Persons Claiming to be a Wrongful Death Beneficiary of Jeff Underhill, Deceased.” The body of the summons contained the following statement:

“The only other respondents other than you in this action are Jeanne Elizabeth Tyler, Joe Alexander, Sam Underhill, Tyler Alexander, and Luke Underhill.” Additionally, the summons required anyone claiming to be a wrongful death beneficiary “to appear and defend against the Petition filed by Matthew Bryan DeForest against you in this action 9:30 A.M. on the 21st day of October, 2016, . . . .” DeForest’s position is that, cumulatively, the personal summons and summons by publication gave Alexander sufficient notice as required by law.

¶10. We hold that in the instant case, the Rule 4 summons was sufficient, as the instant matter to determine wrongful death beneficiaries is not one of a determination of heirship as contemplated by Rule 81. In Long v. McKinney, 897 So. 2d 160, 175-76 (¶ 67) (Miss. 2004), we explained,

“Although there is no specific mandated procedure for the identification of wrongful death beneficiaries, a chancery court may make such determinations; those persons bringing the wrongful death action, together with their counsel, have a duty to identify the beneficiaries, and they should do so early in the proceedings.” Further, the Court has explained on several occasions that a “wrongful death action is not part of the estate of the deceased, and only those individuals listed in the wrongful death statute may bring this independent cause of action.” Pannell v. Guess, 671 So. 2d 1310, 1313 (Miss. 1996) (citing Partyka v. Yazoo Dev. Corp., 376 So. 2d 646, 650 (Miss. 1979)).

¶11. Though there is much terminology overlap and mirroring of language between a determination of heirs for the purpose of an estate and a determination of wrongful death beneficiaries, the only possible issue before the chancery court at the time was a determination of wrongful death beneficiaries, which is a different animal than a determination of heirship as governed by Mississippi Code Section 91-1-29. A determination of wrongful death beneficiaries does not require a Rule 81 summons; therefore, the Rule 4 summons DeForest caused to be served on Alexander was sufficient for the chancery court to obtain jurisdiction.

My thoughts:

  • Plenty of lawyers do not appreciate the difference between an action to determine heirs in an estate and an action to determine wrongful death beneficiaries that is outside an estate. The former is a R81(d)(1) matter, and the latter is a R4 matter. I have had to send lawyers back to the drafting table time after time because they mix up the two. And although there is some overlap between the laws of heirship and the law of wrongful-death beneficiaries, the two are actually different.
  • Before you go diving off into a chancery action to determine wrongful-death beneficiaries, the following is required reading: MCA §§ 91-1-1 and 3 (descent and distribution); MCA § 11-7-13 (wrongful death actions); UCCR 6.10 (petitions in chancery to compromise settlements); and Long v. McKinney, cited above. Only after you grasp all of that in combination should you file your petition.
  • In this case, DeForest made his job more difficult by casting his pleading as one to determine heirs and wrongful-death beneficiaries. It not only opened him to the defense of bad process, but probably caused some consternation to the chancellor who nonetheless plowed ahead and found DeForest to be “the sole and only heir-at-law of the decedent for purposes of the wrongful death action,” a correct, if confusedly worded,  conclusion no doubt dictated by DeForest’s confusing prayer for relief. DeForest should have filed two different pleadings, one for determination of heirship and one for determination of Wrongful death beneficiaries, with two different processes.

Alexander also argued that DeForest’s claim to be sole wrongful-death beneficiary was defeated by the fact that his father’s parental rights had been terminated by judgment of a Michigan court. We’ll explore that intriguing proposition in a later post.

Waiver of Process

June 6, 2018 § Leave a comment

MRCP 4(e) provides that a competent party defendant may waive process, meaning they don’t have to be served with a summons to enter an appearance. BUT there are some wrinkles of which you must be aware:

The waiver must be in writing, dated, and sworn or acknowledged, or the signature proven by two witnesses before a person authorized to administer oaths.

Comment: I have seen unsworn waivers, and undated ones. These are  ineffective. Make sure your forms conform to the rule. A verbal statement, even on the record, may not be enough to be an appearance; it certainly is not enough to constitute a waiver because it is not in writing. Counsel opposite’s statement that her client will waive process, and even the party’s own statement that he will, will not satisfy the rule.

A guardian or conservator may waive process on herself and the ward. Any trustee, executor, or administrator may likewise waive process in his fiduciary capacity.

Comment: Neither an unmarried minor nor a mentally incompetent person may waive process, but their guardian or conservator may. It used to be the rule that convicted felons could not execute a waiver, but that was deleted from the rule.

This is crucial: the waiver must be executed after the day on which the action was commenced and it must be filed among the papers of the case and noted on the general docket.

Comment: I still see waivers every now and then dated on or before the date the initial pleading was filed. That’s void, no matter what kind of case. Even when it’s going to be uncontested and agreed to by everyone, it’s no good. And make sure you file your waiver and have it docketed; it’s a worthless piece of paper until you do.

A few points:

  • Some people use joinders instead of waivers, because they think that the requirements for joinders are not so picky as for waivers. They may be right to some extent, and most judges accept joinders as an appearance. But remember that a joinder is in effect nothing more than an entry of appearance in the case, and R4(e) specifically says that, ” … entry of appearance must be executed after the day on which the action was commenced …” and must be filed just like a waiver, so there’s that.
  • It is not required that process actually be issued before a party may waive service. The waiver has the same effect as if the party were actually served with process.
  • Once a party has waived process, he need file no pleadings, and he is not required to appear.
  • Just because a party waives process does not mean that she may not file an answer. It happens in ID divorces all the time that a party waives process and then later files an objection to the divorce or some other contested pleading.

Parental Rights of the Anonymous Sperm Donor

May 30, 2018 § 4 Comments

The law has always had to scurry along in the wake of technology, tidying up and redefining legal relationships affected by advances in science and medicine.

The latest instance arises out of the field of assisted reproductive technology, and addresses the issue of the parental rights of the anonymous sperm donor in the custody of a child born as a result of artificial insemination (AI).

Christina Strickland and Kimberly Day were married to each other in Massachusetts in 2009, and their marriage was later recognized in Mississippi, where they had taken up residence. In 2011, Kimberly was artificially inseminated and gave birth to a son, ZS. They separated in 2013, and were divorced in 2016, with custody of ZS being a contested issue. Following a hearing, the chancellor ruled that the child was born during the marriage, but that the parental rights of the natural father had not been terminated, thus precluding Christina’s claim to custody. Christina appealed.

In the case of Strickland v. Day, a case of first impression, a plurality of the MSSC held on April 5, 2018, that an anonymous sperm donor has no parental rights. Justice Ishee wrote for the plurality:

¶15. The chancery court’s decision, finding Christina not the legal parent of Z.S., turned largely on its determination that the sperm donor was the “natural father,” whose parental rights were subject to termination. On appeal, Christina argues that this finding is not supported by the evidence and is an erroneous conclusion of law. We agree.

¶16. At the outset, we are cognizant of the fact that we never before have determined what parental rights, if any, anonymous sperm donors possess in the children conceived through the use of their sperm. As such, this is an issue of first impression.

¶17. In searching our state’s existing law, the only law that even addresses AI is the disestablishment-of-paternity statute—Mississippi Code Section 93-9-10(2)(d) (Rev. 2013). And while Section 93-9-10(2)(d) does not address anonymous sperm donors’ parental rights directly, we find it useful as it illustrates the Legislature’s intent on such rights. Indeed, under Section 93-9-10(2)(d), a father cannot seek to disestablish paternity when the child was conceived by AI during the marriage to the child’s mother. Reading this provision, in light of the context before us, the logical conclusion—while not explicit—is that the Legislature never intended for an anonymous sperm donor to have parental rights in a child conceived
from his sperm—irrespective of the sex of the married couple that utilized his sperm to have that child.

¶18. How, on one hand, can the law contemplate that a donor is a legal parent who must have his rights terminated, while at the same time prohibiting the nonbiological father of a child conceived through AI from disestablishing paternity? These two policies cannot coexist. And for one to make such a logical leap effectively would say that the child has three legal parents: the mother who birthed the child, the natural father who donated his sperm, and the person who was married to the child’s mother (and is statutorily prohibited from disestablishing paternity). Three parents—that cannot be what the Legislature intended. Indeed, even the chancery court here said that cannot be possible.

¶19. In making its determination, the chancery court seemed to place great weight on the biological connection between the anonymous sperm donor and Z.S. Yet the Supreme Court of the United States has held that “[p]arental rights do not spring full-blown from the biological connection between the parent and child. They require relationships more enduring.” Lehr v. Robertson, 463 U.S. 248, 260, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983) (quoting Cuban v. Mohammed, 441 U.S. 360, 397, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979) (Stewart, J., dissenting)) (emphasis added). In a similar vein, we too have held that a biological connection alone is not enough to establish parentage. See Griffith v. Pell, 881 So. 2d 184, 186 (Miss. 2004) (finding that a biological father does not have any paternity rights where “he fails to establish that he has had a substantial relationship with the child”).

¶20. As a broader policy consideration, we find that requiring parents of a child conceived through the use of AI to terminate parental rights of the donor would not be in the best interest of the child—to say nothing of the expense and time it would require. When children are involved, we consistently have held that “the polestar consideration . . . is the best interest and welfare of the child.” Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).

¶21. The consequences of assigning rights to donors, who do not engage in an act of procreation but provide biological material with no intention to act as a parent, would disrupt the familial relationships and expectations of Mississippians who have conceived children through the use of AI. For one, it would elevate the rights of a donor—who is a complete stranger to the child, and likely never will be identified—over the rights of a person who has known and cared for the child. Make no mistake—affirmance here arguably would impose parentage, and all its responsibilities, on anonymous sperm donors who contribute sperm to assist families in achieving pregnancy—perhaps creating a chilling effect on sperm donation. Furthermore, it effectively would leave many children conceived through this method with one legal parent. And in the tragic situation in which a mother dies during childbirth or before a proper termination proceeding—it would leave the child an orphan. Such a notion is untenable and certainly contrary to the public policy of this state.

¶22. On appeal, Kimberly’s position is that all of the nonbiological parents of children conceived through AI should be required to terminate the sperm donor’s parental rights and then establish parentage through the adoption process. We disagree. As a practical matter, the process of requiring one under these circumstances to adopt her own child (one which she intentionally agreed to bring into the family) would be intrusive, time-consuming, and expensive. In fact, it would require: parents who use AI with anonymous sperm donation to file a petition and wait thirty days to seek a hearing; a guardian ad litem to be appointed by the court at the parents’ expense; and a hearing to be held to determine whether an
unknowable sperm donor has abandoned the child. See Miss. Code Ann. § 93-15-107 (Rev. 2013).

¶23. One of the rationales behind termination statutes no doubt is to safeguard the rights of any potential parent-child relationship. Indeed, this Court has held that “[p]arents have a liberty interest, more precious than any property interest, in the care, custody, and management of their children and families.” G.Q.A. v. Harrison Cty. Dep’t Of Human Res., 771 So. 2d 331, 335 (Miss. 2000) (citing Santosky v. Kramer, 455 U.S. at 753–54, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)). The seriousness of the action is reflected in the fact that termination of such rights requires clear and convincing evidence of the statutory grounds for termination. Chism v. Bright, 152 So. 3d 318, 322 (Miss. 2014) (citing Kramer, 455 U.S. at 754).

¶24. But with anonymous sperm donors there is no reason to protect the donor, as the donor has no intention or desire to act as a father. In reaching its conclusion in this case, the chancery court found that the donor was merely an “absent father,” but in reality, the donor is a nonexistent father. For the child could never find the donor, much less have a meaningful relationship with him. It is one thing for a child to cling to the hope of a possibility of discovering and eventually building a relationship with an absent father; it is quite another thing for a child to know that he has a natural father that he has no possibility of ever discovering, let alone having a relationship with. That is, short of perhaps a court order mandating the disclosure of the donor’s identity, it is arguably factually and legally impossible for the child ever to obtain the identity of the donor.

¶25. The impracticality and futility of applying the termination statute in this context is clear. Under Section 93-15-107, the natural father is a necessary party to such termination action, but here, or with any anonymous donor, whose identification cannot be known, compliance with the statute arguably is impossible. One cannot serve a party with no information to act upon and which likely never can be acquired.

¶26. To that end, Kimberly argues that Christina, and nonbiological parents alike, can effectuate this service though publication. To be sure, the text of the statute does allow for publication of service of a “necessary party whose address is unknown after diligent search[.]” Miss. Code Ann. § 93-15-107(1)(b) (Rev. 2013) (emphasis added.) Publication in this instance is for a party whose address is unknown, not a party whose identity is
unknown. (Emphasis added). What is more, how can it be evaluated whether there was a diligent search for the party, if the party is unknown? The chancery court itself conceded that it is unlikely that the donor ever could be hailed before the court. The chancery court also conceded that this donor’s identification likely would never be known. And with an absence of identification, publication practically cannot be effectuated in every case in which a couple utilizes AI to bring a child into the family. Indeed, publication under the statute presupposes that, while one may not know the exact location of the party, one at least knows, at a minimum, the identity of the party. This is not to say that, under these circumstances, service by publication could not be accomplished; it is, however, to say that, as a matter of public policy, we find it unwise to demand that it must be accomplished.

¶27. And so, we ask, would it not be futile for the chancery court to require parties to comply with a statute the chancery court itself admits cannot be satisfied due to reasons beyond the control of the parties? Though this exact question is not before us here, we find it demonstrative of the impracticability and futility of requiring compliance with Section 93-15-107(1)(b) in this context.

¶28. Aside from our determination that anonymous sperm donors, in general, do not possess parental rights in the children conceived through the use of their sperm, we also find that there is no other vehicle which allows us to conclude that the anonymous sperm donor here is Z.S.’s parent. The donor was not married to the mother at the time of Z.S.’s conception or birth, he has not executed a voluntary acknowledgment of paternity, and he has not been adjudicated to be the child’s “natural” father under state law. Miss. Code Ann. § 93-9-28 (Rev. 2013).

¶29. In sum, we find that the chancery court erred in finding that an anonymous sperm donor was Z.S.’s parent whose parental rights had to be terminated. Indeed, we find that there is no legal or policy basis to find that an anonymous sperm donor is a parent in this specific context.

Some thoughts:

  • This decision has limited precedential value since it is a plurality decision. But a majority broadly agree that the chancellor erred in ruling that the parental rights of the sperm donor had to be terminated as a prerequisite to a custody contest between the parties, so I would surmise that future litigation over the same issue will result in an outcome similar to this.
  • Justice Waller’s separate opinion points out that the legislature needs to address this issue. He’s right, since there is no statute directly on point.
  • I am uncomfortable with the language in the opinion that talks about the impracticality of requiring process on the sperm donor. Our court should not put a price, so to speak, on due process. Notice and an opportunity to defend are required in a wide range of cases — including those involving unknown fathers — without regard to the difficulty or impracticality of process. I agree that a sperm donor should not be required to be made a party to the litigation in AI cases; however, impracticality of process would not be a component of my rationale were I called upon to decide the case.
  • What cost the plurality a majority is the plurality’s treatment of equitable estoppel in the opinion beginning at ¶30. The dissenters take the position that since the equitable estoppel issue was never squarely presented to the chancellor, it is improper to take it up on appeal. On this I agree with Justice Coleman that it was unnecessary to address it. I would have ended the opinion at ¶29.
  • I found it interesting that the fact that this case arose out of a same-gender marriage was only mentioned in passing and played no part in the ultimate outcome. That is an indication that Obergefell has been absorbed into our law.

The Three Types of Process

May 29, 2018 § Leave a comment

When most of us think about process, we think in terms of MRCP 4 process and R81 process. But, in actuality, there are three types.

Process under R4 requires an answer within thirty days or a default judgment may be entered.

Process under R81, however, requires no answer, but the defendant or respondent must appear and defend on the specified day, or a judgment may be entered against him or her. One type of R81 process requires 30 days’ notice returnable to a day certain. The other type requires a minimum of 7 days’ notice. Here are the two categories set out in R81(d):

(1) The following actions and matters shall be triable 30 days after completion of service of process in any manner other than by publication or 30 days after the first publication where process is by publication, to-wit: adoption; correction of birth certificate; alteration of name; termination of parental rights; paternity; legitimation; uniform reciprocal enforcement of support; determination of heirship; partition; probate of will in solemn form; caveat against probate of will; will contest; will construction; child custody actions; child support actions; and establishment of grandparents’ visitation.

(2) The following actions and matters shall be triable 7 days after completion of service of process in any manner other than by publication or 30 days after the first publication where process is by publication, to wit: removal of disabilities of minority; temporary relief in divorce, separate maintenance, child custody, or child support matters; modification or enforcement of custody, support, and alimony judgments; contempt; and estate matters and wards’ business in which notice is required but the time for notice is not prescribed by statute or by subparagraph (1) above.

None of the matters in bold may be taken as confessed. Proof is required. (R81(d)(3)). And that is so even though no answer is required. (R81(d)(4)).

Both types of R81 process require that “summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the same shall be heard.” (R81(d)(5)).

If the matter can not be heard on the date set in the process, the matter may be continued to a later date, but the continuance order must be signed by the judge on the set in the process. In this district we refer to that date as the “return day.” Each succeeding continuance order must be signed on the date to which the matter was continued. If the case is continued in this fashion no further process is required. (R81(d)(5)).

The Rule of Linking Continuances

December 11, 2017 § Leave a comment

MRCP 81(d)(5) requires that process shall command the defending party to appear at a specified date, time, and place. If the matter is not heard on the day specified in the summons, then ” … it may by order signed on that day be continued to a later day for hearing without additional summons …” on the defending party. And, subsequently, if the matter can not be heard on the date to which it was continued, then a continuance order must be entered on that date to a later date. And so on in the same fashion from one continued date to another until final judgment. Some refer to those continuance orders as “linking” continuance orders.

So, is it necessary to preserve process for the non-appearing defending party to receive notice of each linking continuance order? That was what Jessica Tullos argued about the final judgment modifying custody to her ex-husband James. The matter had been continued several times, all in her absence, and she complained that linking orders were not entered, and that it was error that she did not receive any of them.

In Tullos v. Tullos, decided November 7, 2017, the COA rejected Jessica’s argument and affirmed the trial court. Judge Westbrooks wrote for the unanimous court, Tindell not participating:

¶10. Mississippi Rule of Civil Procedure 81(d) provides special procedures for hearings on modification or enforcement of custody. M.R.C.P. 81(d)(2). When a modification action is filed, notice of the action and the procedures for continuances are governed as follows:

[S]ummons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the [action or matter] shall be heard. Said time and place shall be set by special order, general order, or rule of the court. If such action or matter 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. The court may by order or rule authorize its clerk to set such actions or matters for original hearing and to continue the same for hearing on a later date. M.R.C.P. 81(d)(5).

¶11. “[T]he Mississippi Supreme Court has held that a central consideration under Rule 81 is the adequacy of the notice of the date, time, and place of the hearing.” Brown v. Tate, 95 So. 3d 745, 749 (¶13) (Miss. Ct. App. 2012) (citing Vincent v. Griffin, 872 So. 2d 676, 678 (¶5) (Miss. 2004)). However, if a proper summons is given that notifies the other party of a new controversy that has arisen and of the date, time, and place for a hearing, the rule itself provides that an order entered on the day of the initially scheduled hearing obviates the need for any new summons for a hearing actually held on the later date. Bailey v. Fischer, 946 So. 2d 404, 407 (¶11) (Miss. Ct. App. 2006) (citing M.R.C.P. 81(d)(5)). If no such order is entered, there should be a new Rule 81 summons. Id.

¶12. Though there were five continuances, all orders were signed by the chancellor on each respective hearing date. Therefore, the initial summons was preserved. Jessica argues that because she was not provided a copy of the four subsequent orders continuing the case and
resetting the trial, a new Rule 81 summons should have been issued. Caselaw does not support this contention. The rule states that if the matter is not heard on the day it is set, then an order entered on that day may continue the cause to a later date without a new summons being issued. Sanghi v. Sanghi, 759 So. 2d 1250, 1259 (¶32) (Miss. Ct. App. 2000) (citing M.R.C.P. 81(d)(5)).

¶13. Jessica had notice of the first continuance, and the record does not reflect that she attended that hearing. Jessica also admits that she may have had actual notice of the final hearing through the GAL’s statement regarding the hearing, but she contends that actual notice is insufficient to cure defective process. We agree. “Actual notice does not cure defective process.” Pearson v. Browning, 106 So. 3d 845, 852 (¶39) (Miss. Ct. App. 2012). “[J]urisdiction is not obtained by a defendant’s informally becoming aware that a suit has been filed against him.” Id. Nevertheless, Jessica was aware of a pending custody matter, evidenced by her initial appearance at the first hearing and her signature on the first order of
continuance. A central tenet of Rule 81 is adequate notice of a pending legal matter, and Jessica was given notice at the inception of the custody matter.

¶14. Therefore, we do not agree with Jessica’s argument that a Rule 81 summons should have been reissued because she was not notified of subsequent court-ordered continuances. The summons was preserved with each signed order of continuance. Moreover, each order provided a day certain for the next hearing. Though the final order of continuance was not filed until the day after the hearing, the summons was still preserved because the trial judge signed the order on the day of the hearing. Rule 81 states “if such action or matter 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). Accordingly, we find that an additional summons was not required, and Jessica was adequately notified of the custody matter. Finding no error, we affirm.

Nothing to quibble with here. The rule itself is pretty clear that there is nothing in the rule that supports Jessica’s position; in fact, the rule weighs against her. Nothing further than linking continuances was required.

A Few Thoughts on Process

October 10, 2017 § Leave a comment

  • The sole purpose of process is to give parties notice that there is a legal proceeding involving them. They are invited to participate.
  • Once a party is served with process, or once a party voluntarily appears and participates, the court has personal jurisdiction over that person for the entire remainder of the proceeding, all the way to final judgment, and no further process is necessary (But see the exception of R81 below).
  • When a party voluntarily submits to the personal jurisdiction of the court, no further process is necessary. A person can voluntarily submit to personal jurisdiction by filing a lawsuit as a plaintiff, or by filing a responsive pleading and/or counterclaim, or by simply appearing personally and participating.
  • R4 process requires the defendant to answer within 30 days.
  • R81 process requires the defendant to appear on a day certain. No answer is required, but the defendant may file an answer if he chooses, or if the court orders it. If the defendant does not appear on the specified day, or has not filed a responsive pleading contesting the matter on or before the specified day, then the court can hear the matter on the merits and rule accordingly.
  • We refer to the day specified in the R81 summons as the “return day” because process is “returnable” to that day.
  • If a matter can not be heard for whatever reason on the return day, then you must get an order signed that same day continuing the case to another day certain. And every continuance order thereafter has to be entered on the same day as that to which the case was continued. If you do not do this, your R81 process will be void, and you will have to re-issue process.
  • You do not need to issue process to the plaintiff when you file a counterclaim. That’s because the court already has personal jurisdiction over the plaintiff because he invoked the jurisdiction of the court. Once a party is in the court’s personal jurisdiction, you simply need to give notice per MRCP 5.
  • You can not obtain process by publication over a resident unless you first make diligent inquiry for that person’s whereabouts and then file an affidavit per R4(D)(4) that he is a resident but is not to be found in the state. Only after the affidavit is filed can the publication commence.

Divorce is a Rule 4 Action

September 11, 2017 § 2 Comments

Last week I invited your comments on this language from the MSSC’s decision in Lewis v. Pagel, the case that changed the law of venue in Mississippi divorce actions:

¶34. It is uncontested in the record that Drake did not answer Tonia’s complaint for divorce. While Drake was not required to do so, he was permitted to do so under Mississippi Rule of Civil Procedure 81. M.R.C.P 81(d)(4); see also M.R.C.P. 12. Drake certainly could have responded to Tonia’s complaint and challenged venue. Instead, Drake chose to litigate the entire divorce and several ancillary matters, including several appeals, before raising his venue objection once a contempt judgment appeared imminent.

A couple of commentors hit the nail on the head.

The problem with that statement is that divorce is not a R81 matter; it is a R4 matter. Read R81(d) for yourself. Other than a motion for temporary relief in a divorce, there is no mention of divorce in R81(d). That’s because process in a divorce is made pursuant to R4, and an answer is required within 30 days of service or the defendant will be in default. Now, it is true that a divorce complaint may not be taken as confessed, so that failure to file an answer can not result in entry of a default judgment as would be the case in a law suit; however, it is not R81 process that would be returnable to a day certain, and failure to file an answer does have consequences unlike R81.

It is true that R81 is “subject to limited applicability” to Title 93, which includes divorces. But that provision yields to statutory “procedures” that may be in conflict with the rules, and there are no statutory procedures spelled out in Title 93 that conflict with R4, or with R81 for that matter.

The reason I am pointing this out is not because I like to challenge the justices. It’s because I think it’s important for us to keep these things straight to avoid confusion. The above unfortunate language now sleeps in our jurisprudence, possibly to awaken and do mischief in some later case.

I think sometimes that lawyers who have not spent much time dealing with R81 see it as some kind of mystical incantation that must be invoked in chancery matters, and that unless the rituals are properly observed and the magic is properly invoked, jurisdiction will not attach.

The fact is that R4 and R81 are simply two different systems for service of process. Every matter is a R4 action unless it is specifically mentioned in R81(d). It’s as simple as that.

Rule 4 or Rule 81?

September 6, 2017 § 9 Comments

Yesterday we discussed Lewis v. Pagel, the June 1, 2017, MSSC case that changed Mississippi divorce law with respect to venue.

Can anyone tell me what is wrong with this statement from the opinion:

¶34. It is uncontested in the record that Drake did not answer Tonia’s complaint for divorce. While Drake was not required to do so, he was permitted to do so under Mississippi Rule of Civil Procedure 81. M.R.C.P 81(d)(4); see also M.R.C.P. 12. Drake certainly could have responded to Tonia’s complaint and challenged venue. Instead, Drake chose to litigate the entire divorce and several ancillary matters, including several appeals, before raising his venue objection once a contempt judgment appeared imminent.

I’ll revisit this next week.

Where to Publish

November 30, 2015 § 4 Comments

Sometimes you just have to publish. It may be to complete service of process, or it may be notice to creditors in an estate, or it may be notice of a foreclosure sale. How and where do you publish notice?

Of course, when in doubt, read the rule or statute that applies. But that’s an overly-optimistic view. Some of you will stubbornly soldier on doing some of the most absurd things, like the attorney in a Lauderdale County guardianship recently who published process to the purported father in a Warren County newspaper because that was the man’s last-known county of residence. While that sounds a nice due-process tone, it just doesn’t meet the requirements of MRCP 4. So here are a few pointers:

Service of Process. Everything you need to know about publication process is in MRCP 4(c)(4). Subsection (B) of that rule requires that the publication be made “once each week during three successive weeks” in a newspaper of the county in which the pleading, account, or other proceeding is pending if there is such a newspaper. If there is no such newspaper, then you must post your notice on the courthouse door of the county, and publish it in the newspaper of an adjoining county or in a Jackson newspaper. I believe that the term “newspaper of the county” means one published in the county. That would be consistent with statutes requiring publication, and is the only common-sense interpretation at which I can arrive.

Remember that the courts strictly interpret the process rules. Close does not get you the cigar. You must strictly comply with the rules. There are many pitfalls awaiting those who try to slop through without attention to strict compliance, as I have posted about here before.

Notice to Creditors. MCA 91-7-145 requires that notice to creditors of an estate shall be made in “some newspaper in the county.” This publication requirement also applies in guardianships and conservatorships, per MCA  93-13-38(1). Section 91-7-145 goes on to say that “If a paper be not published in the county, notice by posting at the courthouse door and three (3) other places of public resort in the county shall suffice,” and you must file an affidavit attesting to the posting.

Before you publish, you must file an affidavit of the fiduciary that he or she has made a reasonably diligent effort to identify and give notice to persons who may have claims against the estate. Failure to file the affidavit before publication voids the publication.

Foreclosure. MCA 89-1-55 requires that a foreclosure sale be advertised for three consecutive weeks “in a newspaper published in the county, or, if none is so published, in some paper having a general circulation therein,” and by posting the notice at the courthouse. The statute specifies that the land must be sold in the county where it is located, or the county of the residence of the one of the grantors, or, where the property is situated in more than one county, where the parties have contracted for the sale. Where a city extends into more than one county, a newspaper published in the city is deemed to be published in all the counties into which the city extends. Warren v. Johnston, 908 So.2d 744, 748-49 (Miss. 2005).

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