Peril of Proper Process: Certified Mail Fails Again

November 18, 2019 § Leave a comment

Donald Pritchard filed a Complaint for Divorce against his wife, Lisa, on March 17, 2017. Lisa by then had moved to Alabama.

Donald mailed a copy of the complaint and summons via certified mail to two addresses that Lisa was known to use in Alabama: her residence; and her mother’s. Neither envelope was marked, “restricted delivery.” The copy mailed to Lisa’s address was neither delivered nor refused; the postal service returned to sender stamped “unclaimed.”

As for the copy delivered to Lisa’s mother’s address, Lisa’s sister, Pamela Berthiaume, signed the receipt indicating she was Lisa’s agent (later denied by Lisa). Donald filed the receipt as proof of service. The clerk noted on the docket that Lisa’s answer was due on May 14, 2017. Lisa’s sister met with Lisa, gave her the copy of pleading and summons; and read it with her to help her understand.

On the day appointed for hearing, Lisa did not appear, and the chancellor granted a divorce on the ground of desertion, entering its final decree on June 5, 2017.

Lisa filed a motion to set aside the divorce judgment on June 13, 2017, claiming that the court lacked personal jurisdiction because she was never properly served with process. A hearing on the motion was held in April, 2018, and the court overruled it finding that: Lisa was properly served by certified mail; she had actual notice of the complaint, but she failed to answer or appear; and the court did consequently have jurisdiction.

On appeal, the COA reversed, vacated, and remanded. The case, Pritchard v. Pritchard, was handed down August 27, 2019. Predictably, the opinion penned by Judge Corey Wilson points out that the technical requirements of MRCP 4 were not met, and the fact that Lisa had actual knowledge of the suit was not enough to satisfy R4. There’s nothing novel here; you can read it for yourself.

In dissent, Judge Jack Wilson makes the intriguing argument that Lisa indeed was served with process — personally by her sister Pamela Berthiaume. Here’s how he explains it:

¶36. I agree with the majority that Donald’s attempts to serve Lisa by certified mail were ineffective because the mailing was not marked “restricted delivery” and was returned as “unclaimed.” See M.R.C.P. 4(c)(5); Long v. Vitkauskas, 228 So. 3d 302, 304 (¶6) (Miss. 2017) (“Mississippi Rule of Civil Procedure 4(c)(5) requires a mailing of process to an out-of-state, natural defendant be marked ‘restricted delivery.’”); Bloodgood v. Leatherwood, 25 So. 3d 1047, 1051 (¶16) (Miss. 2010) (“A returned envelope marked ‘unclaimed’ is insufficient to satisfy service requirements under Rule 4(c)(5).”).

¶37. However, the chancery court did not err by denying Lisa’s motion to set aside the divorce decree because there was sufficient evidence for the court to find that Lisa was personally served with the summons and complaint. A “sheriff or process server” may accomplish personal service on a competent adult “by delivering a copy of the summons and of the complaint to [her] personally.” M.R.C.P. 4(d)(1)(A). A “process server” may be “any person who is not a party and is not less than 18 years of age.” M.R.C.P. 4(c)(1).

¶38. Here, Donald mailed a copy of the summons and complaint by certified mail to Lisa at her mother’s address. Lisa did not accept the mailing. However, Lisa’s sister [Pamela] (Berthiaume) signed for it and then personally delivered the complaint to Lisa. Berthiaume testified that she even read the complaint to Lisa. [Fn 6] Thus, Berthiaume “personally” served the complaint consistent with the plain language and requirements of Rule 4(c)(1).

[Fn 6] At the hearing on Lisa’s motion to set aside the divorce decree, Berthiaume testified, in response to a direct question from the chancellor, that the document that she delivered to Lisa was Donald’s complaint for a divorce. In his bench ruling at the conclusion of the hearing, the chancellor found that Berthiaume had delivered the summons and complaint to Lisa. See Smith v. Church Mut. Ins., 254 So. 3d 57, 62 (¶11) (“As to issues of service of process, this Court reviews the trial court’s findings for an abuse of discretion.”). Berthiaume later signed an affidavit in which she claimed that she was “confus[ed]” when she testified in court. In her affidavit, Berthiaume asserted that the document that she delivered and read to Lisa was actually a proposal for an irreconcilable differences divorce, not a complaint. Lisa submitted Berthiaume’s affidavit in support of her motion to reconsider the denial of her motion to set aside the divorce decree. However, Lisa never produced the alleged proposal for an irreconcilable differences divorce. The chancellor denied Lisa’s motion to reconsider.

¶39. The majority opinion suggests that personal service was not effective because Donald never asked Berthiaume “to act as a process server consistent with Rule 4(c)(1)” or because “there is no proof of service to substantiate a date on which Lisa was personally served.” Ante at ¶27. The majority then states personal service was ineffective because there was not “strict compliance” with “the plain requirements of Rule 4.” Ante at ¶28.7 With respect, I disagree.

¶40. The plain language of Rule 4(c)(1) requires nothing more than personal delivery of the summons and complaint by a nonparty adult. As the chancellor found, that happened in this case. Rule 4(c)(1) does not require that the “process server” agree or even intend to act as such. In addition, Rule 4(f) specifically provides that “[f]ailure to make proof of service does not affect the validity of the service.” M.R.C.P. 4(f) (emphasis added). Because Donald did not file proof of personal service, he was not entitled to an evidentiary presumption of valid service. See Collins v. Westbrook, 184 So. 3d 922, 929 (¶18) (Miss. 2016) (explaining that a properly executed proof of service raises a rebuttable presumption that service occurred). However, based on Berthiaume’s own testimony, the chancellor found that personal service had in fact occurred. Thus, the lack of a properly executed and filed proof of personal service is unimportant.

¶41. Our courts have not addressed this issue previously, but the Washington Supreme Court held that similar “secondhand” service constituted valid personal service under that state’s substantively identical rules of procedure. See Scanlan v. Townsend, 336 P.3d 1155, 1160-62 (¶¶22-34) (Wash. 2014). In that case, “a process server delivered a copy of the summons and complaint to [the defendant’s father] at his home. But [the defendant (Townsend)] did not live at her father’s home. Townsend’s father later handed the summons and complaint directly to Townsend . . . .” Id. at 1156 (¶1). Townsend denied that such “secondhand” service was effective. However, the Washington Supreme Court rejected her argument, reasoning that “[n]othing in the plain language of [Washington Civil Rule] 4(c) precludes Townsend’s father, who is over 18 years old, is competent to be a witness, and is not a party, from having authority to serve Townsend.” Id. at 1161 (¶26).

¶42. In Scanlan, the Washington Supreme Court followed a prior Washington Court of Appeals decision in a case that involved personal service by the defendant’s neighbor. See id. at 1161-62 (¶¶31-34) (discussing Brown-Edwards v. Powell, 182 P.3d 441 (Wash. Ct. App. 2008)). In Brown-Edwards, a process server mistakenly delivered the summons and complaint to the defendant’s neighbor, but the neighbor then personally delivered the documents to the defendant. Scanlan, 336 P.3d at 1161 (¶31). The neighbor’s delivery was deemed valid personal service because the neighbor “certainly [met] the criteria for a process server.” Id. at (¶32) (quoting Brown-Edwards, 182 P.3d at 442 (¶6)). As the court explained, Nothing in the rule requires that a process server have a contractual obligation to serve process. Nor is there any requirement of proof of intent to serve process. And we find nothing that would prohibit a person who comes into possession of a summons and complaint by defective service from being a competent process server. The rule prohibits only a party to the action from serving process. Id. (quoting Brown-Edwards, 182 P.3d at 442 (¶6)). In short, a person can effect valid personal service even if she does so unwittingly.

¶43. The reasoning of the Washington courts is persuasive. Berthiaume came into possession of the summons and complaint as a result of a defective attempt at service by certified mail, but she then personally served Lisa in a manner consistent with the plain language and requirements of Rule 4(c)(1). We are bound to apply the “plain language” of the rule rather than “our own notions” of how the rule perhaps should read. Poindexter v. S. United Fire Ins. Co., 838 So. 2d 964, 971 (¶30) (Miss. 2003) (plurality op.) (applying Mississippi Rule of Civil Procedure 15(a)); accord id. at 972 (¶35) (Waller, J., concurring). On the facts of this case, valid personal service occurred under Rule 4(c).

¶44. In summary, there was sufficient evidence for the chancellor to find that Berthiaume personally delivered the summons and complaint to Lisa, and such personal service satisfies the plain language of Rule 4(c)(1). [Fn 8] I would affirm the decision of the chancery court
denying Lisa’s motion to set aside the divorce decree. Therefore, I respectfully dissent.

[Fn 8] Lisa did not receive notice of the hearing on Donald’s complaint. However, both this Court and the Supreme Court have held that there is no obligation to give notice of such a hearing to a party who fails to enter an appearance or answer a complaint for divorce. Lindsey v. Lindsey, 818 So. 2d 1191, 1194 (¶11) (Miss. 2002); Stinson v. Stinson, 736 So. 2d 1259, 1261-62 (¶¶6-10) (Miss. Ct. App. 1999); Carlisle v. Carlisle, 11 So. 3d 142, 145 (¶10) (Miss. Ct. App. 2009).

Whichever opinion you find persuasive, you must admit that Judge Wilson has a good point (think about that for a minute).

It would be interesting to see what the MSSC would do with this issue.

Filing A Motion Doesn’t Get You Automatic Relief

October 7, 2019 § 1 Comment

MRCP 7(b)(1) reads, “An application to the court for an order shall be by motion … .” A motion, then is merely a request for the court to enter an order; it’s not the order itself.

Put another way: a motion for continuance does not get you that continuance until the judge enters an order continuing; a motion to withdraw from representation does not get you out of the case until the judge signs an order letting you out.

This is basic stuff, but some lawyers don’t seem to get it.

In one case a couple of months ago a lawyer did not show up for a final hearing. The other attorney advised that he had filed a motion to withdraw the afternoon before, but he did not appear to present it to the court. He also did not provide a paper copy of it to the court as required by the MEC rules since it was within 24 hours of trial. As things developed, though, I doubt that I would have granted his motion because, as became painfully obvious in the course of the hearing, his client had an intellectual disability and struggled to present her side of the case. Struggled mightily. That earned that lawyer a show-cause order.

While I’m on the subject of motions to withdraw, has anybody read UCCR 1.08? Does anybody have a copy of it? Well, here it is in its elegant simplicity and entirety: “When an attorney makes an appearance for any party in an action, the attorney will not be allowed to withdraw as counsel for the party except upon written motion and after reasonable notice to the client and opposing counsel.”

It’s not enough to file the motion and present an agreed order signed by you and your client. It’s not enough to file a motion and present an agreed order signed by you and opposing counsel. As I have often said in chambers, “Give me an agreed order or set it for hearing,” meaning for a motion to withdraw to get your client and opposing counsel to sign off on it or set it for hearing.

I have had lawyers file motions for continuances and then call my staff attorney asking whether they have to show up. We always offer to hear those in chambers before the trial date if the lawyers both are willing to come. Often the reason is that the lawyer has a conflicting setting in another county. My question is: why would you take a case knowing you have a calendar conflict without first calling opposing counsel to see whether she will agree to a continuance? I know, you need the fee. But you are causing everyone a problem, the judge in particular (ok, that’s from my perspective).

More on Costs

August 28, 2019 § Leave a comment

Yesterday we touched on the concept of costs, as distinguished from fees and expenses.

In the case of Hubbard v. Delta Sanitation of Mississippi, 64 So. 3d 547, 559 (Miss. Ct. App. 2011), the COA, by Judge Myers, reversed a trial court’s award of certain expenses as costs in a case. Although it addresses the seldom-used MRCP 68, its rationale applies to other rules involving costs. The opinion includes a scholarly, if somewhat lengthy, exposition on costs that you might find useful if you are briefing or arguing the point and need more authority than mere Advisory Committee Notes:

¶ 45. This is a case of first impression with regard to Rule 68. Because we are asked to interpret Rule 68, we do so de novo. Miss. Transp. Comm’n v. Fires, 693 So.2d 917, 920 (Miss.1997).

¶ 46. There is scant Mississippi case law dealing with Rule 68. The rule is patterned after Federal Rule 68. Harbit v. Harbit, 3 So.3d 156, 162 (¶ 20) (Miss.Ct.App.2009). Mississippi’s version states, in pertinent part, that:

At any time more than fifteen days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued…. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the cost incurred after the making of the offer.

M.R.C.P. 68.

¶ 47. The purpose of Rule 68, and its federal counterpart, is “to encourage settlements, avoid protracted litigation, and protect the party who is willing to settle from the burden of costs that subsequently come.” Fiddle, Inc. v. Shannon, 834 So.2d 39, 49 (¶ 38) (Miss.2003) (quoting M.R.C.P. 68 cmt.); see also Marek v. Chesny, 473 U.S. 1, 10, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985) (“[Federal] Rule 68’s policy of encouraging settlements is neutral, favoring neither plaintiffs nor defendants; it expresses a clear policy of favoring settlement of all lawsuits.”).

¶ 48. In Shannon, our supreme court spoke to the operation of the rule. Citing Delta Air Lines, Inc. v. August, 450 U.S. 346, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981), the Shannon court found that in order to trigger Rule 68’s “cost-shifting procedure[,]” the offeree must obtain a judgment. Shannon, 834 So.2d at 49 (¶ 39). Shannon held that because the defendant was the prevailing party, the trial court did not err in denying the defendant’s Rule 68 motion. Id.; cf. Johnston v. Stinson, 495 So.2d 1023 (Miss.1986) (holding that the trial court erred in requiring the plaintiff-offeree to pay “court cost” under Rule 68 because the plaintiff obtained a judgment more favorable than the defendant’s offer of judgment); see also Poteete v. Capital Eng’g, Inc., 185 F.3d 804, 806 (7th Cir.1999) ( “[Federal] Rule 68 is applicable only to cases the defendant loses.”); La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 333 (5th Cir.1995) (per curiam) (“If a plaintiff takes nothing … [Federal] Rule 68 does not apply.”).

¶ 49. The term “costs” is not defined in our Rule 68 or its federal counterpart. Neither Shannon nor Johnston addressed the meaning of “costs” under the rule. This Court touched on the subject in Harbit, but the issue there was limited to the propriety of attorney’s fees having been awarded as costs in a divorce action.

¶ 50. Harbit held that the chancery court erred when it used Rule 68 to award attorney’s fees as part of costs. Harbit, 3 So.3d at 162 (¶ 20). Relying on federal jurisprudence as persuasive authority, Harbit noted that Marek held “the most reasonable inference” of the meaning of “costs,” in Federal Rule 68, is that the term “was intended to refer to all costs properly awarded under a relevant substantive statute or other authority.” Id. (quoting Marek, 473 U.S. at 9, 105 S.Ct. 3012). Harbit then explained:

We are not aware of any Mississippi statute that authorizes a chancellor to award attorney’s fees, as part of costs, to a prevailing party in a divorce proceeding. While there is plenty of authority authorizing a chancellor, in the chancellor’s discretion, to award attorney’s fees to a party in a divorce action, that authority is decisional law and is based on financial needs of the party. Therefore, we find that the chancellor erred in using Rule 68 to calculate the amount of attorney’s fees awarded….

Id. at (¶ 21) (internal citation omitted).

¶ 51. Federal courts have interpreted “costs” under Federal Rule 68 as referring to those costs ordinarily awarded under Rule 54(d) of the Federal Rules of Civil Procedure. Hedru v. Metro–North Commuter R.R., 433 F.Supp.2d 358, 360 (S.D.N.Y.2006); Thomas v. Caudill, 150 F.R.D. 147, 149 (N.D.Ind.1993) (citing 7 Moore’s Federal Practice § 68.06(3) (3d ed.1997)). In Thomas, the district court opined that the United States Supreme Court indicated in Marek that “the position in Moore’s Federal Practice is the correct definition of ‘costs’ and that the costs which a defendant is entitled to recover under [Federal] Rule 68 are limited to the costs allowable under Federal Rule of Civil Procedure 54(d).” Thomas, 150 F.R.D. at 149. Thomas based its finding on Marek’s comment that “Rule 68 does not come with a definition of costs; rather, it incorporates the definition of costs that otherwise applies to the case.” Id. (quoting Marek, 473 U.S. at 11 n. 2, 105 S.Ct. 3012).

¶ 52. In Delta Air Lines, the Supreme Court indicated that there is an intrinsic link between Federal Rules 68 and 54, stating:

Rule 68 provides an additional inducement to settle in those cases in which there is a strong probability that the plaintiff will obtain a judgment but the amount of recovery is uncertain. Because prevailing plaintiffs presumptively will obtain costs under Rule 54(d), Rule 68 imposes a special burden on the plaintiff to whom a formal settlement offer is made. If a plaintiff rejects a Rule 68 settlement offer, he will lose some of the benefits of victory if his recovery is less than the offer. Because costs are usually assessed against the losing party, liability for costs is a normal incident of defeat.

Delta Air Lines, 450 U.S. at 352, 101 S.Ct. 1146.

¶ 53. In Johnston v. Penrod Drilling Co., 803 F.2d 867 (5th Cir.1986), the Fifth Circuit Court of Appeals, interpreting Delta, also acknowledged the interrelationship between the two rules, and the court noted the following distinction:

Rule 68 is a mandatory rule designed to operate automatically by a comparison of two clearly defined figures. In Delta [,] … the defendant argued that Rule 68 operated to shift the costs to the plaintiff when the defendant’s $450 offer was rejected and defendant later obtained a take nothing judgment. The [Supreme] Court held that Rule 68 did not operate to shift costs because a take nothing judgment was not a “judgment finally obtained by the offeree.” Our interpretation of Rule 68 is consistent with the teaching of Delta: it is a mandatory rule to be narrowly applied. [Federal] Rule 54(d) gives the district court the necessary discretion to tax costs against the party who should equitably bear them. Rule 68, which provides that the plaintiff must pay costs if its conditions are met, is not such a rule.

Penrod Drilling, 803 F.2d at 870–71.

¶ 54. Federal Rule 54(d) states in relevant part: “Unless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” Rule 54(d) of the Mississippi Rules of Civil Procedure is patterned after former Federal Rule 54(d), and states in part: “Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs….”

¶ 55. As with Rule 68, there is little Mississippi case law dealing with our Rule 54(d). The United States Supreme Court spoke to Federal Rule 54(d) in Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987), superseded on other grounds, 42 U.S.C. § 1988 (1991). There, the Court addressed “the power of federal courts to require a losing party to pay the compensation of the winner’s expert witnesses.” Id. at 438, 107 S.Ct. 2494.

¶ 56. Crawford held that “when a prevailing party seeks reimbursement for fees paid to its own expert witnesses, a federal court is bound by the limit [ations] [set out] in [28 U.S.C.] § 1821[ ] [and § 1920], absent contract or explicit statutory authority to the contrary.” Id. at 439, 107 S.Ct. 2494. The Supreme Court explained that the term “costs” as used in Rule 54(d) is defined by § 1920, which specifically enumerates expenses that a federal court may tax as costs under that rule. Id. at 441–42, 107 S.Ct. 2494. The Court said, “§ 1821 specifies the amount of the fee that must be tendered to a witness, § 1920 provides that the fee may be taxed as a cost, and [Federal] Rule 54(d) provides that the cost shall be taxed against the losing party unless the court otherwise directs.” Id. at 441, 107 S.Ct. 2494.

¶ 57. Briefly, we note that Federal Rule 54(d) was amended on April 30, 2007, effective December 1, 2007, and the language, “unless the court otherwise directs” was removed. In speaking to former Federal Rule 54(d), the Sixth Circuit Court of Appeals explained that “the discretion that Rule 54(d) gives courts (the ‘unless the court otherwise directs’ proviso) is discretion to decline requests for costs, not discretion to award costs that [28 U.S.C.] § 1920] fails to enumerate.” In re Cardizem CD Antitrust Litig., 481 F.3d 355, 359 (6th Cir.2007) (emphasis added).

¶ 58. In Ezelle v. Bauer Corp., 154 F.R.D. 149, 152 (S.D.Miss.1994), the district court spoke to the operation of Federal Rule 68 in conjunction with Federal Rule 54(d):

The party who prevails in a lawsuit ordinarily recovers costs from the losing opponent pursuant to Rule 54(d) of the Federal Rules of Civil Procedure. However, the award of costs under this Rule is a matter of the court’s discretion, and Rule 54(d) permits the district court, on a showing of good cause, to require a prevailing party to bear its own costs. Delta Airlines [Air Lines][,] 450 U.S. [at] 353–56, 101 S.Ct. 1146…. Therefore, the award of costs is not a merely mechanical event and remains, generally speaking, a matter of a district court’s discretion.

However, the district court may be deprived of its discretion under Rule 54(d) where Rule 68 of the Federal Rules of Civil Procedure properly comes into play. [Penrod Drilling,] 803 F.2d [at] 869[.]

¶ 59. The Eleventh Circuit Court of Appeals applied Crawford’s holding in Parkes v. Hall, 906 F.2d 658, 658 (11th Cir.1990), a personal-injury diversity case, where Federal Rule 68 was invoked. The question in Parkes was whether Federal Rule 68, once triggered, obligated the plaintiff to pay costs in addition to those allowed by statute. Id. at 659. Parkes held that “costs which are subject to the cost-shifting provisions of Rule 68 are those enumerated in 28 U.S.C. § 1920, unless the substantive law applicable to the particular cause of action expands the general § 1920 definition.” Id. at 660; see also Knight v. Snap–On Tools Corp., 3 F.3d 1398, 1404 (10th Cir.1993) (holding same); Phillips v. Bartoo, 161 F.R.D. 352, 354 (N.D.Ill.1995) (“absent substantive law authorizing the expansion of § 1920 provisions, Rule 68 ‘costs’ are limited to the definition in § 1920”).
10 ¶ 60. Mississippi does not have a specific statute comparable to that of § 1920, which enumerates all the expenses a court may tax as costs. Rather, items that may be taxed as costs can be found throughout the Mississippi Code.

¶ 61. Other states with procedural rules similar to ours have concluded that costs under their own respective version of Rule 68 are limited to those costs allowable under their version of Rule 54(d). The Court of Appeals of Indiana, in interpreting the term “costs” under Indiana Trial Rule 68, which is almost identical to our Rule 68, said the following: “ ‘Cost’ is a term of art with a specific legal meaning, and we must presume that it was used consistently absent evidence of a contrary intent by the drafters.” Missi v. CCC Custom Kitchens, Inc., 731 N.E.2d 1037, 1039 (Ind.Ct.App.2000). The Missi court held that there is nothing “on the face of T.R. 68 to indicate that the drafters intended a more expansive definition of ‘costs’ than its traditional meaning as embodied in [Indiana Trial Rule] 54(D)….” Id.7

¶ 62. The Supreme Court of Appeals of West Virginia, in Carper v. Watson, 226 W.Va. 50, 697 S.E.2d 86, 95 (2010), held that:

the “costs” that may be assessed against a plaintiff under West Virginia Rule of Civil Procedure 68(c) include only those expenses defined as “costs” by statute. Typically, costs under Rule 68(c) will be limited to “court costs,” i.e., the costs taxable under West Virginia Rule of Civil Procedure 54(d).

¶ 63. We find the logic and reasoning behind the foregoing interpretations persuasive. There being no express indication in the rules of civil procedure, or controlling case law, to the contrary, this Court must presume that the drafters of Rule 68 intended for the term “costs” to be used consistent with Rule 54(d). Therefore, we hold that the costs for which Delta is entitled to recover under Rule 68 are limited to those costs allowable under Rule 54(d). The operation of Rule 68 in this case simply made it mandatory, rather than discretionary, for the trial court to impose upon Hubbard the costs allowed under Rule 54(d) after Delta made its offer of judgment.

¶ 64. But that does not end our analysis. As with Rule 68, Rule 54(d) does not expressly define what constitutes “costs.” Rather, as previously mentioned, Rule 54(d) states in part: “Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs….” Here, there is no underlying, substantive statute with a cost provision contained therein that forms the basis of Hubbard’s case, as it is predicated on common-law negligence. That no such statute governs in this instance means that the trial court was limited to the usual statutory costs. We explain.

¶ 65. Historically, costs were unknown at common law. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); see also Vincennes Steel Corp. v. Miller, 94 F.2d 347, 348 (5th Cir.1938) (“Costs, as we know them today, were unknown to the common law, and, without the aid of statute, liability therefor rests only upon the party incurring them, as for any other debt.”). Thus, “[c]osts are generally allowable only when authorized by statute or court rule.” 20 C.J.S. Costs § 3 (2007).

¶ 66. In Martin v. McGraw, 249 Miss. 334, 340, 161 So.2d 784, 786 (1964), our supreme court stated that courts of equity have “no inherent jurisdiction to award costs independently of statute.” The supreme court reiterated this principle in Ex parte Ashford, 253 Miss. 768, 179 So.2d 192 (1965). There the court held:

(1) The cost alleged to be due the circuit clerk is cost growing out of many ‘state fail’ cases, but since Mississippi Code Annotated Section 3952(d) (1956) prevents an allowance to the circuit clerk by this Court of a sum in excess of the sum set out in the statute, we cannot allow additional cost over and above the amount set out in the law.

(2) This Court has no implied or inherent power to award cost, and may allow only such cost as the Legislature may expressly permit or direct to be awarded by the Court in acts of the Legislature. Martin v. McGraw, 249 Miss. 334, 161 So.2d 784 [ (1964) ]; 20 C.J.S. Costs § 2 (1940).

Id. at 768–69, 179 So.2d at 192.

¶ 67. In Board of Trustees of Hattiesburg Municipal Separate School District v. Gates, 467 So.2d 216, 218 (Miss.1985), the supreme court held that the transcription costs submitted by a freelance-court reporter, and already prepaid by a school board, were statutorily set and, thus, “limited thereby.” Finding that the court reporter had charged an appearance fee, which the statute made no provision for, the supreme court remanded the matter back to the chancery clerk for retaxation of costs. Id. at 219. In its discussion, the supreme court parenthetically referred to § 1920. See id. at 218 (noting that in the federal courts, “items to be taxed as costs under 28 U.S.C. § 1920 must be within express language of statute”).

¶ 68. In Aeroglide Corp. v. Whitehead, 433 So.2d 952, 952–53 (Miss.1983), due to a mistrial caused by defense counsel’s improper cross-examination, the trial court awarded $14,784.51 to the plaintiffs “for expenses incurred in preparation of trial pursuant to its inherent authority to control the proceedings before it and the conduct of the participants therein.” The Mississippi Supreme Court reversed and remanded the case to the trial court for assessment of the “usual and statutory costs” against the defendants. See id. at 953 n. 2 (acknowledging that the defendants were “liable for the full amount of statutory costs incurred up until the time the mistrial was declared”). Id. The Whitehead court stated:

We agree with the learned trial judge that all courts possess the inherent authority to control the proceedings before them including the conduct of the participants. However, an examination of our holding in Newell v. State, 308 So.2d 71 (Miss.1975) lends no support for the action taken by the trial court in the case sub judice.

Id.

¶ 69. The aforementioned Mississippi cases are very instructive in that their holdings are consistent with the general language found in the comment to Rule 54(d),9 a portion of which states: “costs represents those official expenses, such as court fees, that a court will assess against a litigant.” We now examine the items awarded as costs in this case.

A. Expert Fees

11 ¶ 70. As a general rule, “[f]ees for expert witnesses, beyond the ordinary fees authorized for witnesses …, are not taxable as costs unless there is a statute specifically allowing such an expense.” 20 C.J.S. Costs § 123 (2007). There are a number of Mississippi statutes that allow for expert-witness fees to be taxed as costs in certain cases. None, though, apply in this case.

¶ 71. Rule 706 of the Mississippi Rules of Evidence gives our trial courts general authority to appoint expert witnesses and provide for their compensation. But it is inapplicable because Delta’s expert witness was not court appointed.

¶ 72. What is applicable is Mississippi Code Annotated section 25–7–47 (Rev.2010), one of Mississippi’s fee statutes. Section 25–7–47 is Mississippi’s counterpart to § 1821, the federal statute discussed in Crawford, and it authorizes witness fees. The statute provides that witnesses in the county, circuit, and chancery courts shall receive $1.50 per day in attendance fees and five cents per mile to and from the court. Miss.Code Ann. § 25–7–47.

¶ 73. This being the statutory limit allowed by law, we hold that Hubbard may not be taxed with costs in excess thereof with respect to Delta’s expert witness.

¶ 74. As to Delta’s assertion that Hubbard waived his challenge on this point, it is not well taken. Hubbard’s counsel merely informed the trial court, albeit inaccurately, what he believed the law to be. The law does indeed afford our trial courts some discretion with regard to litigation expenses that a litigant must ordinarily bear. But that discretion is very limited.

¶ 75. The comment to Rule 54(d) states in relevant part: “Absent a special statute or rule, or an exceptional exercise of judicial discretion, such items as attorney’s fees, travel expenditures, and investigatory expenses will not qualify either as statutory fees or reimbursable costs.” This language is congruent with the supreme court’s longstanding view with respect to attorney’s fees and litigation expenses. See Grisham v. Hinton, 490 So.2d 1201, 1205 (Miss.1986) (“With the sole exception of punitive damages cases, in the absence of contractual provision or statutory authority therefor, this Court has never approved awarding trial expenses and attorney’s fees to the successful litigant.”); see also Smith v. Dorsey, 599 So.2d 529, 550 (Miss.1992) (opining that such expenses are analogous to the grant of punitive damages); but see Universal Life Ins. Co. v. Veasley, 610 So.2d 290, 295 (Miss.1992) (where the supreme court carved out a narrow exception to the general rule and held that attorney’s fees “and the like” may be awarded in cases where an insurer wrongly denies a claim even though the party’s conduct does not warrant punitive damages).

¶ 76. In Allred v. Fairchild, 916 So.2d 529, 532–33 (¶¶ 9–12) (Miss. 2005), the supreme court applied the Veasley exception in a breach-of-contract case and upheld an award of accounting fees to the plaintiff because the defendant, who had entered into a confidential business relationship with the plaintiff, had actively engaged in fraud and deceit throughout the parties’ business dealings. Relying on the comment to Rule 54(d), the supreme court said, “[e]xceptional circumstances must exist in order for the court to exercise exceptional judicial discretion” under Rule 54(d). Allred, 916 So.2d at 532 (¶ 10) (indicating that such exceptional circumstances must be shown in the record).

¶ 77. We find no exceptional circumstances, as contemplated by Veasley and Allred, present in this case. Nor do we find that Hubbard waived this point of contention.

B. Copying/Printing Costs, Trial Materials, Court Reporter

¶ 78. We know of no statutory authority or court rule that authorizes these items to be awarded as ordinary costs. The copying expenses sought by Delta in this case are considered office expenses of an attorney and are not recoverable. See, e.g., 20 C.J.S. Costs § 109 (2007). The expenditures made for the demonstrative aids used at trial and the professional technical assistance employed by Delta for help in the courtroom are likewise not recoverable as ordinary costs. See, e.g., 20 C.J.S. Costs § 115 (2007). And with regard to the court reporter fee, the record indicates that it is for the deposition taken of Hubbard’s wife, Denise, prior to trial. Rule 30(h) of the Mississippi Rules of Civil Procedure says: “No part of the expenses of taking depositions, other than serving of subpoenas, shall be adjudged, assessed or taxed as court costs.” Accordingly, this too is not a recoverable cost item.

¶ 79. We point out that Delta relied exclusively on federal case law interpreting the federal counterpart to Rule 68 in support of its argument as to what items may be taxed as costs. As previously indicated, we find the interpretations of those authorities persuasive with respect to the operation of Rule 68. There is no distinction between the mechanics of our Rule 68 and Federal Rule 68; they are the same, Shannon, 834 So.2d at 49 (¶ 39), and the federal courts are well versed with this aspect of the rule.

¶ 80. But such cases offer little assistance for determining the specific items that may be taxed as costs under state law. See, e.g., Carper, 697 S.E.2d at 95 n. 4 (same finding). The federal courts “necessarily base their analysis on … § 1920,” a statute that is not applicable to Mississippi’s law of costs.12 See, e.g., id. (stating that § 1920 is inapplicable to West Virginia’s law of costs).

¶ 81. Even though the Mississippi Supreme Court referenced § 1920 in Gates, it did so merely to illustrate that the federal courts, not unlike Mississippi courts, award costs only permitted by statute. See Gates, 467 So.2d at 218. In no way did the Gates court apply § 1920 to the case.

¶ 82. In Missi, the Indiana case mentioned above, cost items similar to those authorized by § 1920 were awarded by an Indiana trial court apparently because Indiana Trial Rule 68 had been invoked, as the following portion from the Missi court’s opinion illustrates:

In support of their argument that the award of litigation expenses should be affirmed, [the appellees] cite Thomas, wherein the [federal] district court held that the defendant whose offer of judgment had been rejected could recover for photocopy expenses, subpoena and mileage fees, and deposition fees. 150 F.R.D. at 150. The Thomas court relied in part upon Justice Brennan’s dissent in Marek, in which he opined that “ ‘costs’ as that term is used in the Federal Rules should be interpreted uniformly in accordance with the definition of costs set forth in § 1920.” 150 F.R.D. at 148 (citing Marek, 473 U.S. at 18, 105 S.Ct. 3012, … (Brennan, J., dissenting)). [Section] 1920 enumerates among recoverable costs the “[f]ees and disbursements for printing and witnesses,” and “[f]ees for exemplification and copies of papers necessarily obtained for use in the case.”

Missi, 731 N.E.2d. at 1040.

¶ 83. In response, the Missi court explained that Indiana courts “may award costs only when they are expressly authorized by statute.” Id. (quoting Board of County Comm’rs of Vanderburgh County v. Farris, 168 Ind.App. 309, 342 N.E.2d 642, 644 (1976)). The Missi court reiterated that Indiana courts “have no inherent power to assess or award costs to a prevailing party” and stated that “[t]he right to recover costs is a matter left entirely to [Indiana’s] legislature.” Id. (citing Linder v. Ticor Title Ins. Co. of Cal., 647 N.E.2d 37, 40 (Ind.Ct.App.1995)). The Missi court then held that the costs awarded by the trial court were not the sort of costs contemplated by Indiana Trial Rule 54(D) and reversed the trial court’s award of such items. Id.

¶ 84. A similar type argument was made to the Court of Appeals of Tennessee in the case of Person v. Fletcher, 582 S.W.2d 765, 766 (Tenn.Ct.App.1979), where the court was “urged to declare certain items as costs under Rule 68 [of the Tennessee Rules of Civil Procedure,] [because] to hold otherwise Rule 68 will provide no deterrent to the unreasonable prosecution of nuisance value cases.”

¶ 85. Rejecting it, the Person court said:

While Rule 68, T.R.C.P., [i]s patterned after Federal Rule 68, this state has not enacted a law comparable to the federal law found at … § 1920, which expressly empowers the judge or clerk of any court of the United States to tax certain enumerated items as cost. This federal statute is the controlling distinction between Rule 68, T.R.C.P., and the federal rule insofar as what may be included as items of costs.

What constitutes costs is determined from legislative enactment on the subject and this principle is expressed in American Jurisprudence, vol. 20, Costs, [§ ] 52:

Inasmuch as the recovery of costs is dependent on statutory provision, a party who has been adjudged to be entitled to recover or tax costs may include in his bill or memorandum only such items of expense as are taxable by virtue of legislative enactment.

The Supreme Court in the case of [Louisville & N.] Railroad [Co.] v. Boswell, 104 Tenn. 529, 58 S.W. 117 (1900), overruling an effort to include a fee as costs not authorized by statute and quoting its earlier case of Mooneys v. [State], 10 Tenn. 578, [ (1831),] tersely stated: “costs are created by statute; unless there be some law to authorize it, the Court cannot Ex officio give costs against any one.” At common law, costs were not recoverable Eo nomine, 20 C.J.S. Costs [§ ] 2. In the absence of statute expressly designating the claimed items as costs, we hold the costs referred to in Rule 68, T.R.C.P., are those costs authorized by statute as assessed by the trial court in this case.

Id. at 766–67. (emphasis added).

¶ 86. And in Carper, it was argued “that limiting the types of ‘costs’ recoverable under Rule 68(c) to ‘court costs’ undermines the purpose of the rule, because such limitation reduces the economic risk to a plaintiff who refuses an offer of judgment, thereby diminishing the incentive to agree to such offers.” Carper, 697 S.E.2d at 95. The Carper court replied:

While the [a]ppellees’ policy argument may be compelling, this [c]ourt has no authority to sanction the taxation of costs which are not permitted by statute or court rule. Indeed, as previously noted, prohibition will lie against a circuit court that awards costs not specifically allowed by statute or court rule. Consequently, any expansion of the “costs” that may be assessed against a plaintiff pursuant to Rule 68(c) must be left to the [l]egislature or be expanded by this [c]ourt through a new judicial rule.

Id.

¶ 87. We find the holdings in Martin, Ex parte Ashford, Gates, and Whitehead are indicative that the Mississippi Supreme Court’s view on the matter is in line with that held in Missi, Person, and Carper.

¶ 88. Also, we point out that one of the cases relied on by Delta in support of its argument, arguing that we should affirm the trial court’s cost award, involved an action under Title VII of the Civil Rights Act of 1964, which therein contains a provision for attorney’s fees, authorizing courts to award reasonable fees and expenses. See, generally, 42 U.S.C. § 2000e–5(k) (2006). Certainly, when a statute allowing for litigation expenses applies to the case, the types of “costs” awarded will differ significantly compared to a case where a trial court (whether it be a state or federal court) is relegated to the usual statutory costs. Such would have been the circumstances had this case involved, for example, a trespass-to-timber action under section 95–5–10(3) (see n. 10).

¶ 89. Survey of the case law dealing with Rule 68, in general, reveals that litigants often rely on incommensurable cases for support of cost items they contend should be awarded simply because Rule 68 was invoked. See, e.g., Crossman v. Marcoccio, 806 F.2d 329, 331 (1st Cir.1986) (describing Federal Rule 68 as “the most enigmatic of the Federal Rules of Civil Procedure,” partly for this reason). Respectfully, the bench and the bar should keep this in mind.

¶ 90. In conclusion, having found the aforementioned cost items awarded by the trial court to Delta in this case unauthorized by Mississippi law, we must reverse on this issue and remand this case to the trial court for further proceedings consistent with this opinion.

What are Costs?

August 27, 2019 § Leave a comment

What, exactly, are costs within the meaning of the MRCP?

Costs, security for costs, and awards of costs are mentioned in MRCP 3, 4(c)(1), 4(c)(3)(C), 30(h), 41(a)(1), 41(e), 43(f), 53(a), 54, 56(h), 65(c), and 68.

R 54(e) provides that costs are awarded to the prevailing party. The Advisory Committee Note to R 54 includes this helpful guidance:

Three related concepts should be distinguished in considering Rule 54(d): These are costs, fees, and expenses. Costs refer to those charges that one party has incurred and is permitted to have reimbursed by his opponent as part of the judgment in the action. Although costs has an everyday meaning synonymous with expenses, taxable costs under Rule 54(d) is more limited and represents those official expenses, such as court fees, that a court will assess against a litigant. Costs almost always amount to less than a successful litigant’s total expenses in connection with a law suit and their recovery is nearly always awarded to the successful party.

Fees are those amounts paid to the court or one of its officers for particular charges that generally are delineated by statute. Most commonly these include such items as filing fees, clerk’s and sheriff’s charges, and witnesses’ fees. In most instances an award of costs will include reimbursement for the fees paid by the party in whose favor the cost award is made.

Expenses include all the expenditures actually made by a litigant in connection with the action. Both fees and costs are expenses but by no means constitute all of them. Absent a special statute or rule, or an exceptional exercise of judicial discretion, such items as attorney’s fees, travel expenditures, and investigatory expenses will not qualify either as statutory fees or reimbursable costs. These expenses must be borne by the litigants.

That is probably enough to get you through most situations. But if you need a more scholarly analysis with case law, I’ll post one here for you tomorrow.

The Drop-Dead Deadline to File a Rule 59 Motion

August 13, 2019 § 3 Comments

A motion to alter or amend a judgment per MRCP 59(e) must be filed within ten days of the date when the judgment is entered or it is untimely.

The COA’s decision in Barbaro v. Smith, about which we posted yesterday, includes this reminder:

¶62. Rule 59(e) of the Mississippi Rules of Civil Procedure states that “[a] motion to alter or amend the judgment shall be filed not later than ten days after entry of the judgment.” M.R.C.P. 59(e) (emphasis added). “This ten-day requirement is absolute, and the court is not permitted to extend this time period.” Wilburn v. Wilburn, 991 So. 2d 1185, 1190-91 (¶11) (Miss. 2008) (quotation marks omitted). A motion is “filed” when it is received by the clerk—not when it is placed in the mail. Massey v. Oasis Health & Rehab of Yazoo City LLC, 269 So. 3d 1242, 1250 (¶16) (Miss. Ct. App. 2018). Barbaro’s motion to alter or amend the judgment was filed twenty-two days after the judgment was entered. Therefore,
the chancellor correctly held that it was untimely.

Two crucially important points: (1) the judge cannot extend the time to file; and (2) the motion is not filed until it is actually received by the clerk.

Oh, and keep in mind that if you file a R59 motion later than 10 days after entry of the judgment, it will be treated as a R60 motion, which does not have the effect of tolling the time to appeal.

Local Rules

August 7, 2019 § 1 Comment

In the divorce case between Marcus and Sumie Sanders, the parties entered an agreed order that their temporary hearing would be submitted by affidavits, without live witnesses. The parties submitted their affidavits, and the court awarded custody of the parties’ daughter to Sumie.

Following entry of a final judgment in his case, Marcus appealed. One issue he raised was that the court in his district required submission of temporary issues by affidavit, which amounts to an unapproved local rule that prejudiced him in the ultimate outcome of the case.

Judge Jack Wilson’s opinion in Sanders v. Sanders, a May 14, 2019 COA decision, addressed the issue:

¶39. On appeal, Marcus argues that the Fourteenth Chancery Court District enforces a local rule requiring temporary custody hearings to be decided by affidavits only. He argues that the rule is invalid because the Mississippi Supreme Court has not approved it. See M.R.C.P. 83(b) (“All . . . local rules . . . adopted before being effective must be filed in the Supreme Court of Mississippi for approval.”). Marcus further argues that the chancellor’s temporary ruling impacted her final ruling, and yet because there was no real hearing on temporary custody, the chancellor’s temporary ruling “cannot be reviewed.”

¶40. We find no reversible error for three reasons, two of which are related. First, the record contains only an agreed order. The record does not show that there actually is an “unapproved local rule.” The chancery court’s website does provide a fill-in-the-blank template for an order setting a hearing on temporary matters by affidavit. [Fn omitted] However, there is nothing to show that this template equates to a court rule that such hearings must be decided on affidavits alone. Nor does the template establish that the chancellors of the district will not hold a live hearing or consider live testimony upon request.

¶41. Second and related, Marcus never raised this issue in the trial court. There is nothing to show that he ever asked for a live hearing or to present live testimony. Because Marcus did not raise this issue, we have no way of knowing whether there is an unapproved rule or whether the chancellor would have heard and considered live testimony. Therefore, the record is inadequate to review Marcus’s claim, and the issue is waived and procedurally barred on appeal. See, e.g., Adams v. Rice, 196 So. 3d 1086, 1090 (¶13) (Miss. Ct. App. 2016) (“A party is not allowed to raise an issue for the first time on appeal.”).

¶42. We note that the Supreme Court addressed a similar issue in Fredericks v. Malouf, 82 So. 3d 579, 582 (¶¶15-16) (Miss. 2012). In that case, the defendants argued that they were prevented from obtaining a hearing on their motion to transfer venue because of an unapproved local rule that stated that hearings on motions were not “automatically granted” and that the parties would “be notified by the court” if the court determined that a hearing was necessary. Id. at (¶15). The Supreme Court concluded that the local rule was “in derogation of Mississippi Rule of Civil Procedure 83, because [it had] never been submitted to [the Supreme] Court for approval.” Id. at (¶16). Nevertheless, the Supreme Court also “emphasize[d] that the trial court’s rule did not prohibit the [d]efendants from requesting a hearing; there [was] no evidence that the trial court would not [have] consider[ed] such a request; and no order exist[ed] denying such.” Id. In other words, the unapproved local rule did not excuse the defendants’ failure to at least request a hearing on their motion. Likewise, in this case, we conclude that the alleged existence of a local rule does not excuse Marcus’s failure to request a live hearing on temporary custody.

¶43. A third reason that Marcus’s argument is without merit is that he fails to establish any prejudice. “A temporary custody order is just that, temporary; it does not change the underlying burden of proof.” Neely v. Welch, 194 So. 3d 149, 160 (¶33) (Miss. Ct. App. 2015) (quoting Baumgart v. Baumgart, 944 S.W.2d 572, 573 (Mo. Ct. App. 1997) (brackets omitted)). The chancellor must conduct an Albright analysis and decide the issue of permanent custody de novo regardless of the temporary order. See id. Marcus overstates the significance of the temporary custody order as it relates to the chancellor’s final ruling and Albright analysis. The chancellor’s final judgment found that the continuity of care factor “strongly favor[ed]” Sumie because Sumie had “always” been Kristen’s primary caregiver, “[b]oth prior to and after the issuance of [the] [t]emporary [o]rder.” (Emphasis added). The chancellor’s analysis was based on the totality of the evidence and only briefly mentioned the temporary custody period. In addition, for the reasons discussed above, there is substantial evidence to support the chancellor’s permanent custody decision.

I would add that two points: (1) Marcus agreed to the affidavit procedure by agreed order, so he should be bound by that agreement; and (2) MRCP 43 expressly allows the trial judge to decide fact issues raised in motions by affidavits.

This argument raises the question: when do local practices and judges’ preferences become local rules? We have all kinds of local practices here in my district that reflect the judges’ preferences as to how to conduct business, but we have no local rules. As we all know, practice varies from one district to another, and even among chancellors within a district. And for good reason. What works in the Delta or on the Coast may not be practical here. Workloads vary, judges’ personalities and approaches to work are different, and different people have different work-styles. I hear lawyers bemoan the fact of varying practices among districts from time to time, but I really don’t believe the answer is to squeeze all chancellors into mechanical uniformity.

Five Post-Trial Motions that Toll The Time for Appeal

July 2, 2019 § Leave a comment

MRAP 4(d) reads in part this way:

(d) Post-trial Motions in Civil Cases. If any party files a timely motion of a type specified immediately below the time for appeal for all parties runs from the entry of the
order disposing of the last such motion outstanding. This provision applies to a timely motion under the Mississippi Rules of Civil Procedure (1) for judgment under Rule 50(b); (2) under Rule 52(b) to amend or make additional findings of facts, whether or not granting the motion would alter the judgment; (3) under Rule 59 to alter or amend the judgment; (4) under Rule 59 for a new trial; or (5) for relief under Rule 60 if the motion is filed no later than 10 days after the entry of judgment. * * *

A R50(b) is one for a directed verdict or JNOV, which means that it applies only in jury trials where the jury is to render a binding verdict. The only time you would see this in chancery is in a will contest with a jury. In the rare and unlikely case of an advisory jury, this rule would not apply (see Advisory Committee Notes).

R52 allows any party to request the court to make specific findings of fact and conclusions of law.

R59 provides two avenues of relief: R59(a) is a motion for new trial, pursuant to which the chancellor may “take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct entry of a judgment;” R59(e), on the other hand, is a motion to alter or amend the judgment.

A R60 motion for relief from judgment filed within ten days of the date of the judgment will toll running of the appeal time; in essence, if it is filed within the ten-day period, it is treated the same as a R59 motion.

Rule 59 and the Court of Equity

May 28, 2019 § Leave a comment

Sometimes you want or need to argue that you should be granted R59 relief because this is a court of equity, and a new trial or rehearing, or new judgment are needed to do equity. The other side argues the rigid language of R59 and says the court can’t go beyond that.

In the case of Pevey v. Pevey, 2017-CA-01144-COA, 2018 WL 4089685 (August 28, 2018), an opinion yet unpublished in the Southern Reporter, Judge Fair (a former chancellor) of the COA wrote this in the unanimous opinion:

¶5. The chancery court’s authority to modify the final judgment is “limited” by Rule 59, and it is a “higher” standard than under Rule 54(b), which allows a trial court to set aside interlocutory decisions for any reason it sees just. [ Maness v. K & A Enters. of Miss. LLC, No. 2017-CA-00173, ––– So.3d ––––, ––––, 2018 WL 3791250, at *12 (¶ 68) (Miss. Aug. 9, 2018) Id. at –––– (¶¶ 69, 71), 2018 WL 3791250, at *13 (¶¶ 69, 71). Still, Rule 59 permits a chancery court substantial discretion to reconsider its decisions—either on the motion of a party, or sua sponte “for any reason for which it might have granted a new trial on motion of a party.” See M.R.C.P. 59(d). When a case has been tried to the court, Rule 59(a) expressly provides that a new trial may be granted “for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.” “The ground rules [for a Rule 59 motion in chancery court] include those that preexisted the Civil Rules regarding the grant or denial of trial court rehearings.” Mayoza v. Mayoza, 526 So.2d 547, 549-50 (Miss. 1988). In In re Enlargement of Corporate Limits of Hattiesburg, 588 So.2d 814, 828 (Miss.1991), the supreme court explained that “[i]n equity, the chancellor has always had entire control of his orders and decrees and authority to modify or vacate any of them on motion of any party, or on his own, prior to final judgment.” While the chancellor’s order may have been styled a final judgment, it was rendered non-final by Dallas’s filing of the motion to reconsider. See Wilson v. Mallett, 28 So.3d 669, 670 (¶ 3) (Miss. Ct. App. 2009). “It is long-settled that when a final judgment is reopened [under Rule 59,] the judgment remains subject to the control of the court until the motion is disposed of and, until that time, does not become final.” E.E.O.C. v. United Ass’n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of the U.S. & Canada, Local No. 120, 235 F.3d 244, 250 (6th Cir. 2000).

¶6. To grant the motion under Rule 59, the chancery court need only be “convinced that a mistake of law or fact has been made, or that injustice would attend allowing the judgment to stand.” See Maness, ––– So.3d at –––– (¶ 69), 2018 WL 3791250, at *13 (¶ 69) (Maxwell, J., specially concurring) (quoting McNeese v. McNeese, 119 So.3d 264, 272 (¶ 20) (Miss. 2013) ). This is an independent basis for granting the motion, distinct from the court’s authority to order a new trial on the presentation of newly discovered evidence. Id. “When hearing a motion under Rule 59(e), a trial court proceeds de novo, if not ab initio. Recognizing that to err is human, Rule 59(e) provides the trial court the proverbial chance to correct its own error to the end that we may pretermit the occasion for a less than divine appellate reaction.” Bruce v. Bruce, 587 So.2d 898, 904 (Miss. 1991). A Rule 59 motion is the “functional equivalent” of a motion for rehearing on appeal. King v. King, 556 So.2d 716, 722 (Miss. 1990).

¶7. Although Rule 59(a) refers to a “new trial,” when a case was tried to the court, the formality of a full retrial is not required. Under Rule 59(a), the chancellor “may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.” Id.

¶ 8. Motions under Rule 59 should be distinguished from motions under Rule 60(b), which seek “extraordinary relief” from a judgment that is truly final. Rule 60(b) motions are for “extraordinary and compelling circumstances” and “should be denied when they are merely an attempt to relitigate the case.” S. Healthcare Servs. Inc. v. Lloyd’s of London, 110 So.3d 735, 742 (¶ 14) (Miss. 2013). “[T]he trial court has considerably broader discretionary authority under Rule 59(e) to grant relief than it does under Rule 60(b).” King, 556 So.2d at 722.

A previous post with a citation to Pevey is at this link. The Warner v. Thomas case at that link actually cites Pevey, despite the fact that it is unpublished in the Southern Reporter. I think the best practice is always to point out that the case you are citing is unpublished in the Southern Reporter, but you can also point out that it has been cited in other published decisions if it has. Another strategy is simply to use the authority cited in the unpublished case.

I think that a regrettable by-product of the MRCP has been a pharisaical tendency toward rigid application of the rules in chancery, losing sight that chancellors bring knowledge, wisdom, judgment, and a sense of fairness to bear. When you take that away from the judge and pen her in a rule cage with no room to maneuver, you might as well do away with the judge and simply look in the rule book for the answer.

The Retirement Time-Bomb

April 30, 2019 § 1 Comment

Many, many divorces include either provisions in PSA’s or adjudications that divide retirement benefits to begin 10, 20, or even more years in the future, long after the time for appeal has run.

What happens when the underlying assumptions upon which that PSA or adjudication is based are changed over time or prove to be inaccurate or untrue?

Carolyn Hall was granted a divorce from Gary Hall on the ground of adultery in 2006. She was awarded alimony, and, as part of the property division, Gary was ordered to pay her: $23,976.23 from his 401(k) plan; $2,976.13 from his stock ownership plan; and $600 per month from his pension if he retired at normal age (based on a projected benefit of $5,212 per month, reflecting the plan’s increase during the parties’ 10-year marriage).

In 2007, Gary’s employer froze his pension benefits, but Gary did not file any action to seek modification. In 2016, Gary accepted an early retirement offer, causing him to retire at age 62 rather than the normal retirement age of 65.

Gary filed a petition for modification in February, 2017, claiming that the freezing of his benefits was a material change in circumstances that reduced his retirement benefits, and asked to eliminate the payment to Carolyn entirely. Perhaps recognizing that property division is unmodifiable (East v. East, 493 So.2d 927, 931 (Miss. 1986)), Gary argued at hearing that he was actually seeking relief from the divorce judgment pursuant to MRCP 60(b)(5) and (6). The chancellor granted Carolyn’s motion and dismissed Gary’s case. Gary appealed.

In Hall v. Hall, decided March 19, 2019, the COA affirmed.

¶13. Gary’s petition does not mention that it was filed under Mississippi Rules of Civil Procedure 60(b)(5) and (6). However, during the hearing on August 2, 2017, as well as within his brief to this court, Gary argued that he is entitled to relief pursuant to Rules 60(b)(5) and (6) and he is also entitled to equitable relief. Since this issue was raised with the chancery court we will address the Rule 60(b) arguments made by Gary.

¶14. Mississippi Rules of Civil Procedure 60(b)(5) and (6) provide:

(b) Mistakes; inadvertence; newly discovered evidence; fraud; etc. 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 reasons:

. . . .

(5) the judgment has been satisfied, released, or discharged, or a prior judgment otherwise vacated, or it is no longer equitable that the judgment should have prospective application;

(6) any other reason justifying relief from the judgment.

The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken. . . .

The supreme court follows the following criteria for determining Rule 60(b) motions:

(1) That final judgments should not lightly be disturbed; (2) that the Rule 60(b) motion is not to be used as a substitute for appeal; (3) that the rule should be liberally construed in order to achieve substantial justice; (4) whether the motion was made within a reasonable time; (5) [relevant only to default judgments]; (6) whether if the judgment was rendered after a trial on the merits-the movant had a fair opportunity to present his claim or defense; (7) whether there are intervening equities that would make it inequitable to grant relief; and (8) any other factors relevant to the justice of the judgment under attack.

M.A.S. v. Miss. Dep’t of Human Servs., 842 So. 2d 527, 530 (¶16) (Miss. 2003). See also Carpenter v. Berry, 58 So. 3d 1158, 1159 (¶18) (Miss. 2011); M.R.C.P. 60(b), advisory
committee’s note.

¶15. Our court previously held in [In re Dissolution of Marriage of De St.] Germain[, 977 So.2d 412 (Miss. Ct. App. 2008)]  that a court did not err when dismissing a
motion brought under Rule 60(b) where the appellant waited five years to set aside a divorce judgment:

Mississippi Rule of Civil Procedure 60(b)(5) [states that] “it is no longer equitable that the judgment should have prospective application”[], [and] the catch-all provision under Mississippi Rule of Civil Procedure 60(b)(6) [provides for] “any other reason justifying relief from the judgment[.]”[] One who proceeds under either Rules 60(b)(5) or 60(b)(6) must do so “within a reasonable time.” M.R.C.P. 60(b). The chancellor did not specifically state that Brenda failed to file her motion “within a reasonable time,” but his ruling implies as much. We cannot find that the chancellor abused his discretion. Brenda filed her motion approximately five years after the chancellor entered the divorce judgment. The allegations raised within Brenda’s motion could have been submitted much earlier than five years after the judgment of divorce. Accordingly, we affirm the chancellor’s decision to grant Robert’s motion to dismiss.

Germain, 977 So. 2d at 416 (¶10).

¶16. Rule 60(b) reads in pertinent part that relief must be sought “within a reasonable time.” Additionally, the supreme court has held “Rule 60(b) provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances . . . .” Entergy Miss. Inc. v. Richardson, 134 So. 3d 287, 291 (¶10) (Miss. 2014). Here, Gary has not demonstrated any exceptional circumstances.

¶17. Further, Rule 60(b) motions are not to be used as a substitute for appeal. M.A.S., 842 So. 2d at 530 (¶16). Gary never appealed the original judgment of divorce or its retirement provisions. However, Gary has now filed a petition approximately ten years later challenging the retirement provisions of the divorce judgment. Moreover, during the hearing on August 2, 2017, Gary testified that his employer, Standex International Corporation, notified him that his retirement plan was frozen in 2007 and at least twice a year thereafter [Fn omitted] … [here the court quoted excerpts from the trial transcript in which Gary essentially admitted that he could have filed a court action much earlier than he did].

¶18. Gary’s petition could and should have been submitted much earlier than ten years after the memorandum opinion and divorce judgment. Gary knew or should have known in 2007 that his retirement plan was frozen in 2007 and that his retirement benefits would most likely not be $5,200 per month as projected. Gary failed to timely file his petition under Rule 60. In view of that, we affirm the court’s decision to dismiss Gary’s petition.

This case highlights the difficult position that litigants find themselves in when the assumptions upon which the equitable division change or prove to be untrue. If you’re negotiating how to divide your client’s retirement, it would be better to cast it as alimony, which is modifiable. If that doesn’t fly, try to negotiate a percentage rather than a fixed sum. If the case is being adjudicated, be sure to develop your client’s position that any such award should be alimony, and why, and that any award should be as a percentage.

Whatever strategy you employ to minimize risk to your client (and you), it’s important to keep in mind that these retirement provisions are ticking away in your client’s life, far beyond the time limit to appeal, and remember: property division is not modifiable.

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.

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