MRCP 4(h) and the Divorce Complaint
October 27, 2014 § Leave a comment
We talked here last week about the applicability of MRCP 4(h) to R81 actions. Whichever side of that particular issue you come down on, you need to be aware that, yes indeed, R4(h) does apply to divorce complaints. And it can bite you in uncomfortable regions of your anatomy if you’re not careful.
In Webster v. Webster, 834 So.2d 26 (Miss. 2003), Charles Webster had left his wife, Jean, and moved to Texas, where he obtained a divorce judgment against her.
On October 5, 1999, Jean filed her own action in Mississippi, claiming that Texas never obtained personal process on her, and that she had never lived in Texas. She attempted several times unsuccessfully to effect certified mail process. On February 8, 2002, she filed a motion to allow out-of-time service of process, which the chancellor granted, finding that good cause existed to allow an additional 120 days.
On June 21, 2000, outside the 120-day extension, Jean filed an amended complaint and issued a new summons. Charles was served with process on July 3, 2000. On October 30, 2000, the chancellor entered a judgment granting alimony and other relief that Charles found distasteful enough that he filed a R60 motion complaining that the court did not have personal jurisdiction because of the out-of-time process. The chancellor overruled the motion, and Charles appealed.
The MSSC reversed and remanded.
Was Jean’s motion for extension of time untimely? Jean waited until after the initial 120 days had run before she filed for additional time. The court took note of a split of authority in other states, but noted that there is nothing in the rules that requires filing a motion for extension within 120 days. It did point out that a diligent attorney should file within the 120 days, and would actually support a finding in favor of the extension.
Did Jean show good cause for not meeting the 120-day requirement? The court said no. You can read the opinion for yourself, but to me there are two salient points to take away: (1) Jean did not support her motion with affidavits, which would have made a record; and (2) You have to make a convincing effort to find and serve the defendant; a few random, half-hearted stabs at it will not suffice.
I also wonder whether that amended complaint was done properly. We’ve talked about that here before.
The moral of this story is that failure to get process on a defendant within 120 days of filing your complaint is one of those fatal problems that can lurk in your record until it rises, zombie-like via a R60 motion, and then on appeal, causing you to lose a case you and your disappointed client had thought you had won.
Do you think this is an academic point you’re not likely to see in your lifetime? Not so fast, my friend. The following scenario happens every day: You file a complaint for divorce on HCIT and alternatively on ID, anticipating, based on your client’s confidence, that everything will be worked out swimmingly. After six months the defendant still has not come to terms — and he has not been served with process. Finally, you issue process and get the case moving. Your 192-day process is ticking away in your case like a time bomb.
Best practice is to wait no longer than 60-90 days to get a waiver and agreed PSA. Immediately after that, have the defendant served with process. You can then continue to attempt a settlement, but R4(h) will no longer be a concern.
Does MRCP 4(h) Apply to R81 Cases?
October 21, 2014 § 2 Comments
R4(h) states:
If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.
In the case of Roberts v. Lopez, decided September 23, 2014, the COA said this:
[¶9] Notwithstanding the provisions of Rule 4(h), Rule 81(a)(9) provides, in pertinent part:
Applicability in General. These rules apply to all civil proceedings but are subject to limited applicability in the following actions which are generally governed by statutory procedures [:] . . . Title 933 of the Mississippi Code of 1972.
(Emphasis added).
¶10. Rule 81(d)(2) provides that modification of custody matters “shall be triable 7 days after completion of process in any manner other than by publication . . . .” Rule 81(d)(5) provides in part:
Upon the filing of any action or matter listed in subparagraphs (1) and (2) [of Rule 81(d)], 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. Said time and place shall be set by special order, general order[,] or rule of court.
David was served with a Rule 81 summons commanding him to appear at the August 24, 2012 hearing. Therefore, it is of no moment that Liza’s initial complaint and amended complaint, which sought to set aside or modify previous custody orders, were filed more than 120 days prior to David being served with the Rule 81 summons. The modification of custody orders that Liza sought was governed by Rule 81(d), not Rule 4(h) as David contends …
This is a novel rationale. The court did not cite, nor have I been able to find, a prior case that supports this assertion. There is nothing in the language of R4(h) that excepts R81 matters. I had always understood the limitation language of R81(a) as applying to statutory provisions that set out specific deadlines such as some estate and guardianship matters.
As a practical matter, R4(h) is usually applied in circuit court actions where its application has statute-of-limitations ramifications. In chancery, since statutes of limitation seldom apply, the 4(h) dismissal is without prejudice, and one can simply shrug it off and refile. David, in his case, tried to use 4(h) as a sword to set aside the trial court’s judgment. He failed, though, based on the court’s reasoning above, but most importantly due to this:
Moreover, David appeared and participated generally in the August 24, 2012 hearing. So even if process were defective, which it was not, David waived the defect by his appearance and general participation in the hearing. See Isom v. Jernigan, 840 So. 2d 104, 107 (¶9) (Miss. 2003). Thus, this issue is without merit.
As we all know, a voluntary general appearance waives any objection to personal jurisdiction.
So, does Roberts v. Lopez establish the rule that R4(h) simply does not apply to R81 matters based on the language quoted above? I think I’m going to treat that language as dicta, since the dispositive fact here was that David waived the objection. It was unnecessary for the court to go into that R4 vs. R81 analysis when all that had to be said was that David’s general appearance subjected him to personal jurisdiction regardless of any defect of process. Your chancellor may see it differently.
The Basis for a New Trial
October 8, 2014 § Leave a comment
MRCP 59(a) provides that the trial court may grant a new trial ” … in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.” In non-jury cases ” … the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings of fact and conclusions, and direct entry of a new judgment.”
On its own initiative, the court may, within ten days of entry of a judgment, order a new trial (rehearing) for any of the above reasons. And the court may, after giving the parties’ notice, grant a new trial for reasons not stated in a motion. The court must spell out the grounds for its ruling.
In the case of Bariffe v. Estate of Lawson, et al., about which we posted yesterday, Justice Coleman’s dissent adds some important insight into how R59 is supposed to be applied by the trial court [beginning in ¶50]:
… Rule 59 must be read and interpreted in light of [MRCP] Rule 61, which provides:
No error in either the admission or the exclusion of evidence and no error in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Miss. R. Civ. P. 61. Thus, a harmless error in the proceedings that “does not affect the substantial rights of the parties” is not a sufficient reason for granting a new trial. Id. Applying Rule 59, the Court has held that trial courts have discretion in granting a new trial if the judge is convinced that (1) “a mistake of law or fact has been made” or (2) “injustice would attend allowing the judgment to stand.” Mayoza v. Mayoza, 526 So. 2d 547, 549-50 (Miss. 1988). …
As we discussed in the previous post, the chancellor granted a new trial in Bariffe because he felt that he had improperly limited the parties’ presentation of their cases in the first trial by imposition of time limits on the examination of witnesses. The majority found no error in his granting of a new trial. Judge Coleman would have held it to be error based on his analysis above.
If you are going to make a R59 motion and argument, make sure you define what substantial rights were affected by the judge’s ruling, and stress that point. If you are on the receiving end of the motion, argue that the movant has failed to raise an issue cognizable under R61.
Can the Judge Time-Limit Your Case?
October 7, 2014 § 4 Comments
In this district, we impose a one-hour-per-side time limit on temporary hearings. It has proven to be an effective way to deal with the numbers of temporary hearings that, if they were not time-limited, could swamp our court system.
Rulings in temporary hearings, however, are not appealable, so the time-limitation issue does not affect record-making that might have an impact on appeal.
What about hearings leading to final judgments? Can the judge impose a time limit on the presentation of your case?
In the MSSC case of Barriffe v. Estate of Lawson, et al., handed down October 2, 2014, the chancellor imposed time limits on the presentation of the parties’ cases because he felt the attorneys were unprepared and had consumed an entire day questioning the first witness. After he entered judgment, he granted a new trial on a R59 motion because he felt that, perhaps, he had been unfair in imposing the time limits.
On appeal, the majority of the court said, “We see little evidence in the record that the chancellor was unfair to either side with respect to time limitations, and we note that his threats [to cut off overtime questioning] were mostly unenforced.” The majority (5-3, with King not participating) held that the chancellor properly granted a new trial.
Justice Coleman, however, dissented, disagreeing that the chancellor was correct in granting a new trial based on the time limits. His opinion sets out the applicable law:
¶47. On the second day of the first trial, the chancellor accused the attorneys of not being prepared for trial and, after the attorneys took more than a day to question the first witness, the chancellor limited the time for questioning the remaining witnesses. Mississippi Rule of Evidence 611 provides:
The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
Miss. R. Evid. 611(a). Rule 611 “is designed to give trial judges some measure of control over the operation of trials and the smooth flow of the litigation process.” Moore v. Moore, 757 So. 2d 1043, 1046 (¶ 14) (Miss. Ct. App. 2000).
¶48. In Moore v. Moore, the defendant claimed that his due process rights were violated because the trial judge limited the trial to one day. Id. at 1046 (¶ 11). The Court of Appeals found no merit to the claim because the defendant knew the time limit from the beginning of trial, he did not object, the defense called seven witnesses, the defendant testified, and there was “no indication in the record . . . that the time limits placed on the trial by the chancellor were problematic.” Id. at 1046 (¶¶ 12-14). The Court of Appeals said if the defendant’s “trial strategy was adversely affected, then a record outlining the adverse effect should have been preserved” for the appellate court to review. Id. at 1047 (¶ 14). The Court of Appeals recognized that defendants have “a right to introduce evidence at a hearing[,]” however, “if there is no evidence to present or no proffer as to what would have been presented, then there is no legitimate basis for complaining on appeal about the chancellor’s control of evidentiary presentations.” Id. at 1046 (¶ 13) (quoting Morreale v. Morreale, 646 So. 2d 1264, 1270 (Miss. 1994)). See also Gray v. Pearson, 797 So. 2d 387, 394 (¶ 29) (Miss. Ct. App. 2001) (court did not overturn chancellor’s ruling limiting each side to two hours of trial testimony because appellant did not make a timely objection or make a record of evidence she would have presented without the time limit).
¶49. In the instant case, although the chancellor gave time limits for three witnesses, he did not adhere strictly to the time limits he set. The attorneys were allowed to exceed the allotted time when they questioned Eugene, and although the chancellor noted the time, he did not instruct them to stop. The chancellor limited the time to ten minutes for each side when the Barriffes called David and Dwight. The Nelsons waived their time to cross-examine both David and Dwight. When the Nelsons called David, they were given forty-five minutes for direct examination; they used only twenty of the allotted forty-five minutes. No time limit was placed on Dwight for the Nelsons’ direct examination. The Nelsons did not use all of the time allotted, they did not object to the time limits, and they did not identify any evidence or testimony that they were not able to present. In my opinion, under these specific facts, the chancellor’s imposition of a time limit on three witnesses, which he did not enforce, did not amount to a violation of due process, and the chancellor acted within his discretion when he limited the time for questioning witnesses.
If your chancellor imposes a time limit in your case, and you feel that your ability to make your case is adversely impacted, you need to be sure to make a timely objection, and make an offer of proof of the evidence you would have been able to present without the time limit. Without those essential elements, you will not be able to argue the point on appeal.
But from both the majority and the dissent in this case, it seems like it would take a pretty unfair scenario for the appellate court to overturn the imposition of time limits.
The Missing Link
September 22, 2014 § 6 Comments
Here’s a typical trial scenario with inexperienced lawyers:
L1: Now, your honor, we ask that this document be admitted into evidence.
L2: Objection. Hearsay and not properly authenticated.
CH: Sustained.
L1: Um, uh, er. Okay. So, Mr. witness, what did you do next?
Stop right there. What did L1 not do that he should have done?
If you said, “Proffer,” or “Offer of proof,” you are correct. If you didn’t get it, well, you need to read — attentively — on.
In the case of Granger v. State, 853 So.2d 830, 833 (Miss. App. 2003), the court said, ” … a party who wishes to preserve an issue for appeal must make a proffer. Generally, when a party seeks to offer evidence which in turn is excluded by the trial court, before we will consider the matter on appeal the party must somehow have placed in the record the nature and substance of the proffered evidence for our consideration.”
MRE 103(a)(2) covers the point:
(a) Error may not be predicated on a ruling which admits or excludes evidence unless a substantial right of a party is affected, and … (2) In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
So, if L1 above could not have stumbled his way around the objections, he should have made a proffer that would look something like this:
L1: Now, your honor, we ask that this document be admitted into evidence.
L2: Objection. Hearsay and not properly authenticated.
CH: Sustained.
L1: We ask that this document be marked for identification purposes only.
That way, the substance of the document is part of the record, and the appellate court can look at it and judge for itself whether it should have been excluded.
Now, getting the document into the record may not be all the appellate court needs to know about it. The court may need to know more in order to make a proper decision. So L1 would then take that document marked for ID, tell the court he would “like to make a proffer,” or would “ask to make an offer of proof,” and when permission is granted either ask the witness questions about the document that make the record, or make a statement into the record about the document and its nature and substance, and why it was admissible. At the conclusion, L1 should say, “Now I am off proffer,” or “that concludes my offer of proof,” or words to that effect. Nothing said or offered in proffer is considered by the trial judge, but it may be considered by the appellate court.
That latter procedure also works where the trial judge has sustained objections to questions you ask the witness, and you need that information in the record.
Despite the language of the rule, you should never assume that the substance is apparent from the context. You should always make your proffer.
This is important because your key role at trial is not to have the trial judge rule for you, or to satisfy your client, or to be the best-dressed lawyer. Your key role is to MAKE A RECORD of every bit of evidence that supports every element of your case, in a way that is intelligible to the appellate court. No matter how convincing your case was to the trial judge, no matter how charming and persuasive you were in the court room, if you haven’t made a good record you run the substantial risk of getting your case reversed on appeal. Clients hate that.
If you do not make a proffer when the court excludes evidence, you are leaving a missing link in your record that may snatch defeat from the jaws of victory.
MRCP 41(b) in Operation
September 16, 2014 § Leave a comment
The COA’s September 9, 2014, decision in In the Matter of Will of Bowling: Hicks v. Bowling, addresses a dismissal by the trial court of a will contestant’s complaint after she had rested in a bench trial.
The dismissal was per MRCP 41(b), which states, in pertinent part:
… After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and law the plaintiff has shown no right to relief. The court may then render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence …
The defendant, Mark Bowling, moved to dismiss at the conclusion of Paula Hicks’s case in chief, and the chancellor granted the motion. Paula appealed.
Judge Maxwell set out the applicable law:
¶18. In contrast to a motion for a directed verdict under Mississippi Rule of Civil Procedure 50(a), which applies to jury trials and requires the trial judge to view the evidence in the light most favorable to the plaintiff, a Rule 41(b) motion to dismiss differs somewhat. It applies to cases tried by a judge sitting without a jury and requires the judge to view the evidence fairly. Gulfport-Biloxi Reg’l Airport Auth. v. Montclair Travel Agency, Inc., 937 So. 2d 1000, 1004 (¶13) (Miss. Ct. App. 2006) (contrasting Rule 41(b) with Rule 50(a)). When considering a Rule 41(b) motion to dismiss, the judge must deny the motion to dismiss “only if the judge would be obliged to find for the plaintiff if the plaintiff’s evidence were all the evidence offered in the case.” Id. at 1004-05 (¶13) (quoting Stewart v. Merchs. Nat’l Bank, 700 So. 2d 255, 259 (Miss. 1997)).
The standard, then, is for the court to consider the plaintiff’s evidence fairly, and to overrule the motion only if the judge would be compelled to rule in the plaintiff’s favor if her case in chief were all the evidence in the record. The court is not obliged to view the evidence in a light most favorable to the plaintiff, as in jury trials, but only fairly.
The COA went on to find that the chancellor had considered Paula’s evidence fairly, and agreed with the chancellor’s analysis of why she had not met her burden of proof in the case.
The distinction between viewing the evidence in a light most favorable to the plaintiff and viewing it fairly can be major. In the former, the judge must tilt the perspective, so to speak, in the plaintiff’s favor. In the latter, the view is more even-handed. Knowing the distinction and being able to apply it to the facts in your case could mean the difference between winning and losing your case on a R41(b) motion. Keep in mind, though, that nothing can save your case if you have not met your burden of proof. That means using those checklists and proving every applicable factor.
Binding a Minor to a Settlement
August 14, 2014 § 4 Comments
Minors can not act for themselves. That creates some obstacles when a minor is injured in an accident, and the insurance company or some other paying party needs a signature on a release to settle the claim.
In Matter of Wilhite: Woolbright v. Wilhite, handed down September 10, 2013, by the COA, 18-year-old Lacey Wilhite had been severely injured in a catastrophic collision with a drunk driver. Her mother, Celeste Sloan, who had custody, filed a petition to be appointed guardian. Lacey’s father, Rodford, with whom Lacey had been living for several years before the accident, in response filed a petition to be appointed guardian and for custody.
The chancellor appointed Rodford as guardian, and authorized him to accept the insurance company’s tender of policy limits in the amount of $100,000. The judge also approved the contract of the attorney for Rodford for a 25% contingent fee. More about that attorney’s fee in a bit.
On appeal, Sloan’s lawyer argued that, even though her contract with Sloan had not been approved by the court, she had a reasonable expectation of compensation from the child’s estate, based on quantum meruit. The COA disagreed. Beginning at ¶11, Judge Fair explained:
Sloan may have been a “natural guardian” of Lacey under Mississippi Code Annotated section 93-13-1 (Rev. 2004), but the chancery court is the “superior guardian.” See Carpenter v. Berry, 58 So. 3d 1158, 1163 (¶19) (Miss. 2011). As the Mississippi Supreme Court detailed in Mississippi State Bar Association v. Moyo, 525 So. 2d 1289, 1293-96 (Miss. 1988), there are three ways to bind a minor in a settlement: (1) removal of the disability of minority, (2) the formal appointment of a guardian, and (3) the chancery court’s approval, without a guardianship, when the claim is worth $25,000 or less (Mississippi Code Annotated section 93-13-211 (Supp. 2012)). It stands to reason that a parent who has no authority to bind her daughter’s estate in a settlement cannot bind the estate to an attorney’s fee contract, particularly when such a contract would have to be, but was not, approved by the chancery court. See UCCR 6.12. In Carpenter, 58 So. 3d at 1163 (¶19) (citation omitted & emphasis added), the supreme court reiterated its longtime holding that:
Infants and persons of unsound mind are disabled under the law to act for themselves. Long ago it became the established rule for the court of chancery to act as the superior guardian for all persons under such disability. This inherent and traditional power and protective duty is made complete and irrefragable by the provisions of our present state constitution. It is not competent for the Legislature to abate the said powers and duties or for the said court to omit or neglect them. It is the inescapable duty of the said court and[/]or the chancellor to act with constant care and solicitude towards the preservation and protection of the rights of infants and persons non compos mentis. The court will take nothing as confessed against them; will make for them every valuable election; will rescue them from faithless guardians, designing strangers, and even from unnatural parents, and in general will and must take all necessary steps to conserve and protect the best interest of these wards of the court. The court will not and cannot permit the rights of an infant to be prejudiced by a waiver, or omission or neglect or design of a guardian, or of any other person, so far as within the power of the court to prevent or correct. All persons who deal with guardians or with courts in respect to the rights of infants are charged with the knowledge of the above principles, and act to the contrary thereof at their peril.
See also Union Chevrolet Co. v. Arrington, 162 Miss. 816, 826-27, 138 So. 593, 595 (1932) (original source) …
You can take away from that that there are no shortcuts in obtaining a release that is binding on a minor. You can either: (1) get the disabilities of minority removed, which you will likely find to be a hard sell; or (2) have a guardian appointed, who can petition the court to approve an on-the-record minor’s settlement; or (3) present the matter as a minor’s settlement not requiring a guardianship, if the settlement amount is below the statutory amount and the chancellor finds it to be in the child’s best interest. That’s it. The parents can not bind the child acting in their capacities as parents without court approval.
Another feature of this case is that both parents hired their own attorneys to take legal action for the benefit of Lacey before a guardianship was established, and neither had their contract approved in advance by the court. The trial court rejected Ms. Sloan’s attorney’s contract, which called for 33 1/3% of the settlement, and approved that of Mr. Wilhite for 25% The chancellor also reduced Sloan’s attorney’s quantum meruit claim to $2,500, despite that she claimed to have invested 125 hours in the case. The COA affirmed
You can read the COA’s rationale for yourself. What is important here is that you appreciate that when you go out on a limb without court approval in a case such as this, you run the risk of recovering nothing or a greatly reduced fee. UCCR 6.12 clearly lays out what is required. Here it is, broken down point by point for clarity:
- Every petition by a fiduciary or attorney for the allowance of attorney’s fees for services rendered shall set forth the same facts as required in Rule 6.11, touching his compensation, and if so, the nature and effect thereof.
- If the petition be for the allowance of fees for recovering damages for wrongful death or injury, or other claim due the estate, the petition shall show the total amount recovered, the nature and extent of the service rendered and expense incurred by the attorney, and the amount if any, offered in compromise before the attorney was employed in the matter.
- In such cases, the amount allowed as attorney’s fees will be fixed by the Chancellor at such sum as will be reasonable compensation for the service rendered and expense incurred without being bound by any contract made with any unauthorized persons.
- If the parties make an agreement for a contingent fee the contract or agreement of the fiduciary with the attorney must be approved by the Chancellor.
- Fees on structured settlements shall be based on the “present cash value” of the claim. [Emphasis added]
Before you go crashing off into a case involving a minor’s interest, think through what you are being called on to do, and cover your bases. If you don’t, you might find, much to your chagrin, that you have donated a lot of free work to the youngster.
A Dog Bites Man Case
August 7, 2014 § 2 Comments
Charles Anderson Dana, Civil-War-era managing editor and part-owner of the New York Tribune newspaper is credited with the astute observation that “When a dog bites a man that is not news, but when a man bites a dog that is news,” or words to that effect.
So, when a particular case from our appellate courts is not news, so to speak, I guess one could call it a “Dog-bites-man case.”
Squarely in that category is the COA’s July 15, 2014, decision in McBride v. McBride, which ascended to that lofty court from a chancellor’s ruling in the midst of a contentious series of legal battles between Lindsey and Jimmie McBride, a divorced couple, over custody and visitation. Lindsey had opened a second front in the pair’s warfare by enlisting the aid of a sympathetic family court in Louisiana. Jimmie counterattacked with another round of modification pleadings in Mississippi.
The chancellor’s ruling was this:
Jimmie’s “[p]etition for [m]odification of [v]isitation/[c]ustody shall be stayed for thirty (30) days from the date of entry of this order upon condition that within said thirty (30) days the Louisiana [c]ourt, on [Lindsey’s] motion, set aside [its] May 17, 2012 [o]rder, and allow [Jimmie] to answer the Rule to Show Cause filed on March 9, 2012[,] in the Louisiana [c]ourt. In the event that does occur, counsel for each party shall notify [the chancery c]ourt at which time [the chancery c]ourt shall recognize that a proceeding concerning the custody of the child is pending in [Louisiana], and [the chancery c]ourt will consider whether or not it should transfer jurisdiction to [Louisiana] . . . . In the event the Louisiana court does not set aside [its] May 17, 2012 [o]rder within said thirty (30) days, [Jimmie] may set for hearing his [p]etition for [m]odification of [v]isitation/[c]ustody.”
Not particularly satisfied with this ruling, Lindsey appealed. She did not request to file an interlocutory appeal.
Now, if you have been paying even scant attention to this blog in the past year or so, I think you’ll guess correctly where this is heading.
The chancellor’s ruling left Jimmie’s modification action pending, and the chancellor did not certify his order under MRCP 54(b). Result = Appeal dismissed. Not really news. Happens every time … and quite frequently.
This has been a slow chancery-news summer, so a dog-bites-man case was newsworthy enough to merit a post. But, a man-bites-dog case … now there’s some real news. I’ll be waiting for one to report on.
Publication Process When the P.O. Address of the Defendant is Stated
August 4, 2014 § 3 Comments
It can’t be overstated that the process requirements of MRCP 4 must be satisfied in every particular in order for the court to have personal jurisdiction over a defendant. There is no such thing as “close is good enough.” There are plenty of cases that hold that even if you can prove that the absent party knew of the proceedings, unless that party was properly served with process, the court has no jurisdiction.
MRCP 4(4)(A) allows you to obtain process by publication if you allege by sworn complaint or petition, or by affidavit, that the defendant is a non-resident, or is not to be found in this state, after diligent inquiry.
If the party’s post office address is unknown, you can proceed from there.
But, if you have a last-known address, there are some technical requirements that trip up many lawyers.
R4(4)(C) says expressly: ” … Where the post office address of the absent defendant is stated, it shall be the duty of the clerk to send by mail (first class mail, postage prepaid) to the address of the defendant, at his post office, a copy of the summons and complaint and to note the fact of issuing the same and mailing the copy, on the general docket, and this shall be the evidence of the summons having been mailed to the defendant.”
The rule puts the duty on the clerk, but let’s think about that a minute. What is the penalty if the clerk fails to mail or note on the docket? The penalty is that you have to do it over … and over again … until it’s done right. So, what do you do?
I think you have a choice between two ways to go …
- You bring your own extra copy or copies, as many as necessary, along with postage, and help the clerk get those copies into the envelopes and ready to mail, first class, postage prepaid, and then you ask the clerk — politely — to note the fact on the record. The principle being that if you want something done right, you should … well, you know the rest.
- You can whine and complain about how unjust and unfair this is. In the meantime, your client is stuck on the starting line, waiting for you to effect process.
The Better Chancery Practice Blog 