Rules | The Better Chancery Practice Blog

False Pleadings

January 23, 2018 § 2 Comments

In case you hadn’t noticed, MRCP 11(a) requires every pleading to be signed by one of the attorneys of record. But it doesn’t stop there. It goes on to say that …

“The signature of an attorney constitutes a certificate that the attorney has read the pleading or motion; that to the best of the attorney’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.”

R11(b) provides sanctions for non-compliance.

The Advisory Committee Note says that, “Good faith and professional responsibility are the bases of Rule 11.” And it points to R8 pertaining to general denials, which is expressly subject to R11, “meaning only when counsel can in good faith fairly deny all the averments in the adverse pleading should he do so.”

So how do the following comport with R11?

Attorney prepares and files an affidavit of diligent inquiry stating that the affiant is the sole heir of the decedent. The attorney is relying solely on the word of the affiant-client. Turns out that the affiant has two sisters in another state.
Attorney files an affidavit on behalf of the client taking the client’s word that she looked everywhere for her daughter to take custody of her child, and the daughter is not to be found in Mississippi. A simple Facebook search would have located the daughter in Gulfport.
Attorney files a verified application for injunction swearing that efforts have been made to give notice, but that notice should not be required. On inquiry by the judge it is disclosed that counsel has been in discussions about the matter with an attorney representing the opposing party, and that attorney’s office is directly across the street from the courthouse.
Attorney signs off on a divorce complaint alleging HCIT and adultery knowing from interviews with the client that there is not enough evidence to support either ground.

If good faith and professional responsibility are the fundamental considerations behind R11, then I think it requires more than taking your client’s word for it and filing pleadings that prove to be wrong. Notice that I said wrong, and not fraudulent. But that’s a thin line.

Understanding the MEC Privacy Requirements

January 8, 2018 § 2 Comments

Section 9(A) of the MEC administrative procedures imposes a duty to protect sensitive information of parties and children in filings with the court. Social Security numbers, names of minor children, dates of birth, and financial account numbers are prohibited and must be redacted. Attorneys are directed to use caution with personal identifying numbers (e.g., driver’s license numbers), medical records, employment history, individual financial information, and proprietary or trade-secret information.

There are exceptions, however, set out in Section 9(B). It states:

The redaction requirement shall not apply to the following:

The record of an administrative or agency proceeding.
The record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed. See Section 5(D) for a listing of restricted access cases.
Documents filed under seal.
Documents filed as Restricted Access if the private information is necessary and relevant to the case. See Section 5(D) for listing of restricted access cases.

Section 5(D) designates certain cases as “Restricted Access” (RA), meaning that persons other than the attorneys of record and clerks will only be able to view remotely the case’s docket page; as with other unsealed cases, the public may view documents on file in RA cases at the terminal in the clerk’s office.

Cases designated as RA include:

Debt Collection; Garnishment; Replevin; Child Custody/Visitation; Child Support; Divorce, both fault and irreconcilable differences; Modification; Paternity; Termination of Parental Rights; Birth Certificate Correction; Conservatorship; Guardianship; Minor’s Settlement; Protection from Domestic Abuse Law.

Note that adoption is not listed. That’s because adoptions are under seal, and so are exempted under 9(B)(3), above.

Also not listed are estates. That means that the redaction requirements do, indeed, apply to them.

Even if your case is not designated in the rule as an RA case, you may still move the court to restrict a document or the entire case for good cause, per Section 5(D)(3).

Just because your case falls in an RA category does not mean that can or should ignore your client’s right to privacy. Social Security numbers, financial account numbers, passwords, and personal identifying numbers should always be scrubbed from documents filed with the court, exchanged in discovery, and introduced into evidence, unless your client has specifically authorized you to release that specific information.

And remember that MRCP 5.1 extends the MEC privacy rules to districts using non-MEC electronic filing.

The Rule of Linking Continuances

December 11, 2017 § Leave a comment

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

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

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

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

[S]ummons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the [action or matter] shall be heard. Said time and place shall be set by special order, general order, or rule of the court. If such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent. The court may by order or rule authorize its clerk to set such actions or matters for original hearing and to continue the same for hearing on a later date. M.R.C.P. 81(d)(5).

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

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

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

¶14. Therefore, we do not agree with Jessica’s argument that a Rule 81 summons should have been reissued because she was not notified of subsequent court-ordered continuances. The summons was preserved with each signed order of continuance. Moreover, each order provided a day certain for the next hearing. Though the final order of continuance was not filed until the day after the hearing, the summons was still preserved because the trial judge signed the order on the day of the hearing. Rule 81 states “if such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent.” M.R.C.P. 81(d)(5). Accordingly, we find that an additional summons was not required, and Jessica was adequately notified of the custody matter. Finding no error, we affirm.

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

Should Mississippi Have a Class-Action Rule? Your Comments are Invited

November 7, 2017 § 5 Comments

The MSSC has tasked the Supreme Court Advisory Committee on Civil Rules to study whether Mississippi should adopt a procedural rule allowing class actions. The committee is expected to recommend whether or not to do so, and, if the answer is positive, to propose how such a rule would operate.

The impetus for the referral comes from a motion filed with the court by Attorney Richard T, “Flip” Phillips to adopt Rule 23 of the Federal Rules of Civil Procedure.

To refresh your recollection, when the MRCP was adopted in 1982, Rule 23 was omitted. Up until then, equitable principles allowed consolidation of actions into something resembling class actions in chancery. The MRCP put an end to that, and some used Mississippi’s liberal joinder laws to fashion mass litigation that proved to be nightmarish in implementation. The MSSC and venue legislation put the kibosh on that, and so we are left with no tools for anything resembling class actions.

Both sides on the issue point out that Mississippi is the only state that does not have any form of state-court class action. Virginia allows class action in only extremely limited circumstances. All other states have rules allowing class actions.

The committee is gathering information and hopes to be in a position to make a recommendation by the spring of next year.

What do you think? Should Mississippi have a rule allowing class actions? Your comments are invited and will be shared with the advisory committee.

Butting In

September 25, 2017 § 2 Comments

The Smiths, paternal grandparents of 3-year-old Zach, want to hire you to get custody of of him from his parents, who have been jailed over some meth charges. The Smiths just discovered that the Johnsons, the maternal grandparents, have already filed an action in chancery court to do that very thing, and the case is set for hearing in a week. What to do?

Your first thought is to file a counterclaim for the Smiths, seeking custody. But, after re-reading R13, you realize that counterclaims are between parties, and the Smiths are not parties.

You think then that maybe you should simply file a separate suit and ask the chancellor to consolidate them. That sounds kind of cumbersome, and leaves you and your clients out of the loop as to what is going on in the Johnsons’ original suit unless and until consolidation is granted.

Frustrated and on the verge of tears, wondering why you ever though law school was a good idea in the first place, you pace the floor of your office until an intern says, “Why don’t you file to intervene via Rule 24?” You scoff and dismiss the intern to go get the mail … and then you look at R24.

Voila! Intervention. It’s right there in the MRCP!

The first step in intervention is to file a motion to intervene in the action. The rule requires a “timely application.” The motion must state the grounds for the motion and must be accompanied by a proposed pleading setting forth the claim or defenses for which the intervention is sought.

Any party may intervene in an action:

By right when a statute confers an unconditional right to intervene. So, obviously, the statutory right would be the ground for the motion; or
By right when the applicant claims an interest in the subject matter of the suit and his ability to protect that interest may be impaired, unless existing parties can adequately protect that interest; or
By permission when a statute confers a conditional right to intervene; or
By permission when an applicant’ claim or defense and the main action have common questions of fact or law.

It is within the court’s discretion whether to allow the intervention. The court must consider whether the intervention will unduly delay or prejudice the rights of the original parties.

The Advisory Committee Notes cite authority to the effect that: (1) if one of the criteria for intervention by right are met, and there is a timely application, the court should grant intervention; (2) even if one or more of the criteria for permissive intervention are met, it is discretionary with the court whether to grant it; (3) any application to intervene must be timely, and the note cites the criteria the court must consider to determine timeliness; and (4) the determination of timeliness is in the trial court’s discretion and will not be overturned absent abuse of discretion.

Bottom line: You can’t just leap into the middle of an ongoing lawsuit without following R24.

Taking as Admitted … or not

September 18, 2017 § Leave a comment

Ursel Williams sued her husband, Wayne Williams, for separate maintenance after he left her. In the course of litigation, Wayne propounded R 36 requests for admission (RFA’s), most of which went to the merits of Ursel’s claims. Ursel never responded, and Wayne moved at trial for the chancellor to take the requests as admitted. She refused. Wayne appealed the judge’s grant of separate maintenance and raised in his appeal the issue of the chancellor’s refusal to take the admissions as admitted.

In Williams v. Williams, decided August 22, 2017, the COA affirmed. Judge Lee wrote for a 7 1/2 -1 1/2 court (Judge Wilson joined the dissent “in part”):

¶7. Rule 36 of the Mississippi Rules of Civil Procedure governs requests for admissions. The rule states, in pertinent part, that a matter will be deemed admitted if the party upon whom the request was served does not timely respond or file an objection addressed to the matter. M.R.C.P. 36(a). A timely response equates to one being made within thirty days. See id. Thereafter, the matter is conclusively established unless the court permits the admission’s withdrawal or amendment. M.R.C.P. 36(b). “A matter that is deemed admitted does not require further proof.” Locklear v. Sellers, 126 So. 3d 978, 981 (¶7) (Miss. Ct. App. 2013). Still, while “Rule 36 is to be applied as written, . . . ‘it is not intended to be applied in Draconian fashion.’” In re Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424, 432 (¶28) (Miss. 2009) (quoting DeBlanc v. Stancil, 814 So. 2d 796, 801-02 (¶26) (Miss. 2002)). Specifically, “[a] certain amount of discretion is vested in the [chancellor] with respect to whether he or she will take matters as admitted.” Earwood v. Reeves, 798 So. 2d 508, 514 (¶19) (Miss. 2001) (citation omitted).

¶8. The problem here is that the admissions produced contradictory results. Some of the requests asked Ursel to admit that: the separation was her fault, Wayne did not refuse to support her, and Wayne did not abandon her. However, another request asked Ursel to admit that “there is no significant conduct on [y]our part that negatively impacts the enjoyment of the marriage contract.” Ursel obviously admitted to this statement in her untimely response. As such, we fail to see how the matter could be conclusively established as Wayne argues; thus, it was within the chancellor’s discretion to rely on the trial testimony to resolve any conflicts. Furthermore, the chancellor recognized that it was within her discretion to review the reason for Ursel’s failure to timely answer the requests for admissions. The chancellor found the delay of thirty-three days was not “critical,” and we can find no abuse of discretion in this instance. The dissent states that Wayne’s requests for admissions were deemed
admitted for Ursel’s failure to timely reply and that the contradictory admission does not encompass the essential elements of Ursel’s separate-maintenance claim. However, the dissent concedes that it is within the chancellor’s discretion whether to take matters as admitted. In this instance, we cannot find error by the chancellor.

Nothing earthshaking here.

In child custody cases, RFA’s may not be relied upon by the chancellor as the body of proof. And here is another post (with the same title) on the point.

It’s important to keep in mind that you shouldn’t send RFA’s out to do the bulk of the heavy lifting in your case. They aren’t designed to do that. As the court has said, the purpose of the request for admission under Rule 36 is “to determine which facts are not in dispute . … It is not intended to be used as a vehicle to escape adjudication of the facts by means of artifice or happenstance.” DeBlanc v. Stancil, 814 So. 2d 796, 802 (Miss. 2002).

When a Judgment Isn’t a Judgment

September 13, 2017 § 3 Comments

If a chancellor finally adjudicates a case with an instrument entitled “Order,” is that a final, appealable judgment?

Check out MRCP 58:

Every judgment shall be set forth on a separate document which bears the title of “Judgment.” However, a judgment which finally adjudicates the claim as to all parties and which has been entered as provided in MRCP 79(a) shall, in the absence of prejudice to a party, have the force and finality of a judgment even if it is not properly titled … [my emphasis]

That language came into play in the recent COA case, Bray, et al. v. Wooten, et al. handed down August 22, 2017.

In that case, on May 12, 2014, the chancellor rendered a final ruling following a hearing, and entitled it “Opinion and Order.” The order was filed the same day in the office of the chancery clerk. Later, on July 11, 2014, a document entitled “Final Judgment,” that had been drafted by one of the attorneys and signed by all counsel, was erroneously presented to the other chancellor in the district. He signed it that day, no doubt not taking time to study it in detail because it was signed off on by all counsel, and it was entered by the clerk on July 15, 2014. A motion for new trial was filed within ten days of entry of the July judgment, and was overruled ruled by the original chancellor in January, 2015. The appeal was filed within thirty days of the chancellor’s January, 2015, ruling, which came eight months after the May, 2014, final order. Here’s what the COA said about it:

¶17. We begin with the jurisdictional issues. [One of the appellants] argues that the Bray’s notice of appeal was untimely. It claims that the final judgment was Chancellor Kilgore’s Order and Opinion dated May 12, 2014. Thus, since the Bray’s notice of appeal was not filed until February 10, 2015, it was almost seven months late, and this appeal should be dismissed.

¶18. “[W]e review questions of law, such as jurisdiction, utilizing a de novo standard of review.” Weeks v. State, 139 So. 3d 727, 729 (¶5) (Miss. Ct. App. 2013) (citing Whetstone v. State, 109 So. 3d 616, 618 (¶6) (Miss. Ct. App. 2013)). Mississippi Power argues that Chancellor Kilgore’s January 14, 2015 order stated that his final order was the May 12, 2014 order. Thus, Mississippi Power contends that Bray did not timely perfect the appeal. Bray counters that Mississippi Power did not join Wooten’s motion for summary judgment or move separately for summary judgment, meaning the chancellor’s judgment was not final. We address both of these arguments.

¶19. “A final, appealable, judgment is one that adjudicates the merits of the controversy and settles all the issues as to all the parties and requires no further action by the lower court.” Jennings v. McCelleis, 987 So. 2d 1041, 1042 (¶4) (Miss. Ct. App. 2008) (quotation marks omitted) (quoting Walters v. Walters, 956 So. 2d 1050, 1053 (¶8) (Miss. Ct. App. 2007)). “Generally, only final judgments are appealable.” Walters, 956 So. 2d at 1053 (¶8) (quoting M.W.F. v. D.D.F., 926 So. 2d 897, 899 (¶4) (Miss. 2006)).

¶20. Mississippi Rule of Civil Procedure 58 provides:

Every judgment shall be set forth on a separate document which bears the title of “Judgment.” However, a judgment which fully adjudicates the claim as to all parties and which has been entered as provided in M.R.C.P. 79(a) shall, in the absence of prejudice to a party, have the force and finality of a judgment even if it is not properly titled. A judgment shall be effective only when entered as provided in M.R.C.P. 79(a).

In his January 14, 2015 “Opinion and Order,” Chancellor Kilgore ruled:

This order was filed in the office of the Chancery Clerk on May 12, 2014. Although this judgment was styled “Opinion and Order” and was clearly intended to be a final resolution to the action, counsel for Wooten acknowledged that he drafted a document entitled “Final Judgment”’ and mistakenly submitted same to the other Chancery Judge in the district, who signed this order on the 11th day of July, 2014.

¶21. The chancellor’s May 12, 2014 order was entitled “Opinion and Order.” It did not comply with Mississippi Rule of Civil Procedure 58, which clearly requires that a final judgement [sic] be titled “Final Judgment” in order to be considered one. A further analysis through Mississippi Rule of Civil Procedure 79(a) does not support the chancellor’s ruling.

¶22. Therefore, we find that the chancellor’s May 12, 2014 Opinion and Order was not a final, appealable judgment, and it did not have the force and finality of a judgment. The fact that the parties’ attorneys prepared and signed a “Final Judgment” supports our decision. Had it been submitted to the correct chancellor, there would be no argument that the notice of appeal was untimely. Regardless, the earliest possible appealable “final judgment” in this case was the Final Judgment that was signed on July 11, and entered on July 15, 2014. The motion for a new trial was filed on July 25, 2014, which was within ten days as required by Mississippi Rule of Civil Procedure 59(b). Because the notice of appeal was filed within thirty days of the chancellor’s January 14, 2015 “Opinion and Order,” we find no merit to this issue.

If the COA is trying to say that the labelling of the May ruling worked prejudice on the appellant that was compounded by his submission of the “Final Judgment” to the wrong judge, okay. That makes sense under R 58, which specifically says that mislabelling of a final judgment is only fatal to its finality if it creates a prejudice to a party.

But the COA’s language at ¶21 is too sweeping to me when it says, “[The May Order] did not comply with Mississippi Rule of Civil Procedure 58, which clearly requires that a final judgment be titled “Final Judgment” in order to be considered one.” On the contrary, under R 58, the chancellor could have tiled it “Laundry List,” and, if it finally adjudicated all claims as to all parties, it would be a final, appealable judgment if no one could show prejudice. The language of the opinion, which may be quoted as authority, can be taken to mean something contrary to the express language of the rule.

The wrinkle here was the submission to and signing of counsel’s “Final Judgment” by a busy chancellor who was likely interrupted in other matters to accommodate the request. Had the document been submitted to the proper chancellor, I believe he would have declined to sign it on the basis that he had already issued a final ruling in the case. He said as much in his January, 2015, ruling on the R 59 motion.

Divorce is a Rule 4 Action

September 11, 2017 § 2 Comments

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

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

A couple of commentors hit the nail on the head.

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

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

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

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

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

Rule 4 or Rule 81?

September 6, 2017 § 9 Comments

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

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

I’ll revisit this next week.

Divorce Venue Can Be Waived

September 5, 2017 § 2 Comments

If there is one maxim of conventional wisdom in Mississippi divorce law, it is “Venue in a divorce is jurisdictional.” As a result, an objection to venue can not be waived.

That’s because the divorce venue statute, MCA 93-5-11, has been construed to confer subject matter jurisdiction which, as everyone knows, can neither be waived nor voluntarily conferred. The concept is embedded in our case law.

The foregoing was the law until June 1, 2017. Now the law has changed.

In Lewis v. Pagel, decided by the MSSC on June 1, 2017, Drake Lewis tried to argue on appeal that the chancery court lacked subject-matter jurisdiction over his divorce from Tonia Lewis Pagel because he was not a resident of the county where the divorce was filed. The Supreme Court rejected that argument, and turned its attention to the question whether Drake had waived what up until then had been unwaivable. Justice Chamberlin wrote for a unanimous court:

¶28. In addition to residing in Harrison County, Drake waived his objection to improper venue by not timely raising it. Under Mississippi law, it is a “basic premise that venue may be waived.” Belk v. State Dep’t of Pub. Welfare, 473 So. 2d 447, 451 (Miss. 1985).

¶29. Section 159 of the Mississippi Constitution vests subject-matter jurisdiction in the chancery courts over divorce proceedings. Miss. Const. art. 6, § 159. Personal jurisdiction in a divorce proceeding, though, is governed by Mississippi Code Section 93-5-11. Section 93-5-11 was amended by the Legislature in 2005 to include new language on the transfer of venue: “Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.” Miss. Code Ann. § 93-5-11; see also 2005 Miss. Laws 448. Rule 82(d) of the Mississippi Rules of Civil Procedure provides:

(d) Improper Venue. When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court in which it might properly have been filed and the case shall proceed as though originally filed therein. The expenses of the transfer shall be borne by the plaintiff. The plaintiff shall have the right to select the court to which the action shall be transferred in the event the action might properly have been filed in more than one court.

M.R.C.P. 82 (emphasis in original). Further, the Rules provide the procedure for contesting improper venue. M.R.C.P. 12(b). We have not applied the language of Section 93-5-11 directly after its 2005 amendment.

¶30. We recognize that before the 2005 amendment this Court consistently found that Section 93-5-11 could not be waived as it vested subject-matter jurisdiction over divorce actions in the chancery courts. See Cruse v. Cruse, 202 Miss. 497, 499, 32 So. 2d 355, 355 (1947) (applying Section 2738); Price v. Price, 202 Miss. 268, 272, 32 So. 2d 124,125 (1947) (applying Section 2738); Carter v. Carter, 278 So. 2d 394, 396 (Miss. 1973) (applying Section [93-5-11’s 1942 Code predecessor]) [Fn omitted] ; Miller v. Miller, 323 So. 2d 533, 534 (Miss. 1975); Stark v. Stark, 755 So. 2d 31, 33 (Miss. Ct. App. 1999); Slaughter v. Slaughter, 869 So. 2d 386, 395 (Miss. 2004); see also Bush v. Bush, 903 So. 2d 700, 701 (Miss. 2005) (order granting and deciding merits of petition for interlocutory appeal).

¶31. Today, we overrule these past cases to the extent that they hold that Section 93-5-11 confers subject-matter jurisdiction on chancery courts. [Fn 3] Subject-matter jurisdiction is conveyed by the Mississippi Constitution. Section 93-5-11 governs the venue of a divorce action and limits the chancery court’s exercise of personal jurisdiction over the defendant. The Mississippi Rules of Civil Procedure control the procedure to be utilized when venue is improper. [My emphasis]

[Fn 3] In 2006—after Section 93-5-11 was amended—this Court, in dicta, found that Section 93-5-11’s venue requirement conferred subject-matter jurisdiction on the chancery courts. National Heritage Realty, Inc. v. Estate of Boles, 947 So. 2d 238, 248–49 (Miss. 2006) (applying Miss. Code Ann. § 91-7-63(1)). We decline to follow this interpretation of Section 93-5-11 post-amendment. It appears the Boles Court did not take the amendment into account.

¶32. Additionally, even if the venue argument was correct, the appropriate remedy would have been transfer of the matter to Jackson County. M.R.C.P. 82(d). Rule 82(d), explicitly incorporated by Section 93-5-11’s amendment, allows the court to transfer an action only “on timely motion.” Id.

¶33. Drake’s motion challenging venue—eight years after the initial complaint—was untimely. Tonia filed her complaint for divorce in 2006; the chancery court entered an order of divorce in 2008. Drake first raised the issue of venue in 2014—six years after the entry of the judgment of divorce.

¶35. Our finding of waiver is reinforced by Drake’s actions after filing this appeal. After Drake noticed this appeal—in which he raises the issue of a lack of subject-matter jurisdiction before this Court—he entered three agreed orders that were approved as to form by his counsel. Each order recognizes that the Harrison County Chancery Court has jurisdiction over both the subject matter of the dispute and the parties involved in the
dispute. [Fn omitted] Therefore, we find that Drake has waived his objection to venue by litigating in Harrison County.

So there you have it. Venue in a divorce case is no longer a function of subject matter jurisdiction that can not be waived or voluntarily conferred; it is a function of personal jurisdiction that can be waived. If venue is improper, the issue must be timely raised, and the remedy is transfer, not dismissal.

Remember that “timely” language from R 82. It does no good to plant a venue objection in your answer, and then to joust through discovery and motions for a year or two only to try to get the case transferred after the tide has been running against your client.

One little fillip, though. Won’t this open up the possibility of forum shopping? The plaintiff and defendant may decide to file in a district where neither resides because it has a shorter wait time to final hearing, or has a judge who is more to their liking, or for any other reason. A judge may invoke R 82 on her own motion at any time, but something has to bring the issue to the judge’s attention for that to happen. Or maybe we are simply entering an era when the locus of the divorce no longer has that much significance. Stay tuned.

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