REPRISE: Perils of Process by Publication, Episode Three
June 27, 2013 § Leave a comment
Reprise replays some blog posts of note from the past that may be of some use to you today …
PERILS OF PROCESS BY PUBLICATION, EPISODE THREE
June 27, 2011 § 3 Comments
You can read here and here some of the snares in MRCP 4 that can snap painfully on the unwary. Unwary = those who don’t bother to read the rules.
MRCP 4 publication claimed its latest victim on June 14, 2011, in the COA case of Turner v. Deutsche Bank. In that case, the bank filed a judicial foreclosure and published process to Angela Turner. The original complaint recited Angela’s address, and the bank duly sent its process server there, only to discover that she had moved, whereabouts unknown. At that point, without amending its pleadings or filing an affidavit of diligent inquiry, Deutsche published process and a chancellor signed a default judgment finding, among other things, that the court had jurisdiction.
Angela awoke to what had happened and filed an MRCP 60 motion to set aside the judgment, and the original chancellor recused herself. Her successor overruled Angela’s motion in part because the court had already ruled that it had jurisdiction.
The court of appeals reversed and remanded. Here are some pertinent excerpts from the decision:
- “Deutsche Bank attempted to serve Turner by publication under Rule 4(c)(4), which provides for situations where the defendant cannot be found within the state. Publication of the summons must be made once a week for three consecutive weeks in the public newspaper of the county if one exists, as in our case. M.R.C.P. 4(c)(4)(B). But service by this method is only permitted “[i]f the defendant . . . be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry.” M.R.C.P. 4(c)(4)(A).”
- “¶10. The affidavit or sworn complaint must also state the defendant’s post-office address, if known, or swear that it could not be determined after a diligent inquiry. Id. If the postoffice address is listed, the sworn petition or affidavit must further provide the defendant’s street address or that it could not be determined after a diligent inquiry. M.R.C.P. 4(c)(4)(B). And if the plaintiff provides a post-office address, the clerk must mail the defendant (by firstclass mail, postage pre-paid) a copy of the summons and complaint to his post-office address, and note having done so on the general docket. M.R.C.P. 4(c)(4)(C). “
- “¶12. The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (¶16) (Miss. Ct. App. 2002) (internal citation omitted). Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So. 2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759 So. 2d at 1257 (¶33). [Emphasis added]
- “¶13. In Kolikas, we found a chancellor erred in failing to set aside a divorce decree, where the plaintiff attempted service by publication without strictly complying with the requirements of Rule 4(c)(4). Kolikas, 821 So. 2d at 879 (¶32). We observed that a defendant is “under no obligation to notice what is going on in a cause in court against him, unless the court has gotten jurisdiction of him in some manner recognized by law.” Id. at 878 (¶17).” [Emphasis added]
- In the petition or affidavit, the plaintiff must certify to the court, among other things, that the defendant is a nonresident or cannot be found in Mississippi.
- This conclusion is supported by the supreme court’s decision in Caldwell v. Caldwell, 533 So. 2d at 415. There, the supreme court noted that Rule 4(c)(4)(A) was substantially the same as the statute in place before the adoption of the Mississippi Rules of Civil Procedure. Id. The Caldwell court found instructive and quoted favorably a pre-rules treatise’s comment that “[a]n affidavit to support process by publication must strictly comply with the statute and if it omit[s] averment of diligent inquiry it is insufficient.” Id. at 416 (quoting Griffith, Mississippi Chancery Practice , Bobbs-Merrill Company, Inc. 225-27 (1925)). And “where notice by publication is resorted to . . . as a basis for the jurisdiction of the court, in lieu of personal summons[,] all the requirements of the statute as to such notice must be strictly complied with[.]” Id. at 415 (emphasis added). Rule 4(c)(4)(A) is equally clear that the plaintiff must attest that he has performed a diligent inquiry before performing service by publication. It is no less true today that a sworn averment of diligent inquiry must be made to effectuate proper service by publication. “[Emphasis added]
- “Rule 60(b) provides that the court may relieve a party from a final judgment if one of the stated conditions is met. One such condition exists where “the judgment is void.” M.R.C.P. 60(b)(4). Our supreme court has held that “[a] court must have . . . proper service of process . . . in order to enter a default judgment against a party. Otherwise, the default judgment is void.” McCain v. Dauzat, 791 So. 2d 839, 842 (¶7) (Miss. 2001) (internal citation omitted). Although “[t]he grant or denial of a 60(b) motion is generally within the discretion of the trial court, . . . [i]f the judgment is void, the trial court has no discretion.”
So here’s what you need to take away from this case:
First, if you’re going to obtain process by publication, you are going to have to comply with every technical requirement of MRCP 4(c)(4). The rule is to be strictly construed.
Second, if you have not been able to discover the whereabouts of the other party for service of process, you must file your affidavit of diligent inquiry before you publish. Filing it later will not work.
Third, if you do not comply strictly with the rule, your judgment will be void and subject to being set aside. In other words, you client will have paid you for accomplishing nothing, and maybe even for putting him in a worse position. That usually makes a client peeved enough to sue somebody.
This is yet another in a long list of decisions that would have had an entirely different outcome if counsel had simply taken a few minutes to read the rule and do what it says.
Yes, This is the 12th Chancery Court District …
June 17, 2013 § 8 Comments
Welcome to the blog’s new look and new name.
The content will continue as it has been, but in what I hope is a brighter, more readable format.
And the new name more accurately reflects what the blog is all about: improving Mississippi chancery court practice.
The URL is unchanged, so you will not have to adjust your bookmarks.
Enjoy.
THREE YEARS ON … AND GOING FORWARD
June 14, 2013 § 6 Comments
Three Years …
Today, June 14, is the third anniversary of this blog.
My rather modest, original purpose was to have a place where I could post helpful information for lawyers who came through my court. I anticipated that the lawyers in this area would tap into it, and that it would improve their performance, and mine in the process. If 5-10 lawyers a day would view it and find something useful, that would be good, and I could say to myself, “Mission accomplished.”
Over time, though, the scope of the blog became far more expansive than I had envisioned. Where I had initially intended to talk about how we do things in District 12, I found that more and more posts dealt generally with chancery practice.
I learned that lawyers in other parts of the state began to find a resource here, not just a court-district web site. Word had spread and lawyers across the state discovered the blog. Some CLE presenters were citing the blog as a resource. More than one law professor pointed their students to it on particular points (the spike in viewership at law school exam time is big). Some judges began referring lawyers to it as a source to help get their probate matters straight, or to clean up their trial practice. In time, viewership steadily increased, and in all parts of Mississippi (and some other states, I might add). I regularly heard from lawyers passing through that they and their colleagues were using what they found here.
Today, much to my astonishment and delight, I get between 250 and 350 different visitors each weekday, and have 83 more following via email or otherwise. There have been 887 posts and 1,490 comments.
I am gratified that I have been able to be of some help. My hope is that everyone can find something here that will improve their chancery practice in even a small way. If nothing else, lawyers can take what I say as a modest starting point to improvise, create and come up with even better ways to do things. That’s what I am aiming for: Better Chancery Practice.
When I set out I promised myself that I would blog for a year, five days a week, and, if at the end of that time I ran out of things to say, or it proved too much of a chore, I would find some other project. Well, I have never yet concluded that I ran out of things to say (keep your opinions to yourself), and this has not yet proven to be too much of a chore. Thus, I continued on, and here I am today, and for yet a while.
Going Forward …
So how long will I keep this up? Well, I imagine I will as long as I feel like I have not run out of things to say, and it doesn’t prove too much of a chore. I might add, though, that every time I get feedback that the blog has helped a lawyer or judge in some way, it recharges my batteries and keeps me going further.
I’ve concluded, though, that I could improve some things around here. I want the appearance to be brighter and more appealing. I want to shed the impression that this is a local-court-district web site. And I want to help readers re-discover some useful info that may have become buried over time.
So, here are some coming changes:
- Beginning Monday, June 17, 2013, the blog will have an entirely new look (sorry, Anderson) that I am confident you will find to be crisper, more readable, and brighter.
- The name will change to reflect the broader scope of the blog. I want to get away from the idea implied by the name that this is only a court-district web site.
- The URL will not change. You will still find this at www.chancery12.wordpress.com.
- Older posts will be reprised from time to time to help those who have not been around from day one to discover helpful posts from the past. At 887 posts, it can be hard to sift through that haystack.
There you have it. It’s been fun thanks to all of you. And as long as it continues to be fun, I’ll be here.
Ciao for niao.
“QUOTE UNQUOTE”
May 31, 2013 § Leave a comment
“I always think of nature as a great spectacle, somewhat resembling the opera.” — Bernard Le Bovier de Fontenelle
“Every year, back comes Spring, with nasty little birds yapping their fool heads off and the ground all mucked up with plants.” — Dorothy Parker
“That’s the problem with nature. Something’s always stinging you or oozing mucus on you. Let’s go watch tv.” — Bill Watterson
THE CHARM OF CHECKLISTS
May 23, 2013 § 2 Comments
For those of you who are relatively new to this blog, I want to call your attention to how crucial it is to put on proof of the various factors that have been mandated by the appellate courts to make your case. It’s a subject I bring up every now and then to make sure that lawyers know about it.
It’s what I call trial by checklist. You can think of the factors as a checklist of what you need to prove to make your case. If you fail to put on proof of the factors, as I have said here many times, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.
Many lawyers print out these checklists and use them at trial. Please feel free to copy these checklists and use them in your trial notebooks. You’re free to copy any post for your own personal use, but not for commercial use. Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine). Good. If it improves practice and makes your (and my) job easier and more effective, I’m all for it.
Here is a list of links to the checklists I’ve posted:
Doing an accounting in a probate matter.
Income tax dependency exemption.
Modification of child support.
Periodic and rehabilitative alimony.
Up there on the right is a box labeled “Select Category.” There is a “Checklist” category that will take you to all the posts with and about checklists.
KEY CHANCERY CASES JANUARY 2012 – MARCH 2013
May 1, 2013 § Leave a comment
Many of these have been addressed in prior posts. This puts them all together in one place.
Lee v. Lee, 78 So.3d 326 (Miss. 2012)
Even in uncontested cases, it is essential that your judgment address all of the applicable factors, such as Albright, Ferguson, Martin v. Coop, etc.
Lone Star Industries, et al. v. McGraw, MSSC February 2, 2012 and McKnight v. Jenkins, MSSC February 14, 2013
If you file an amended pleading outside the time allowed and do not get leave of the court to file an amended pleading, the amended pleading is a nullity and should be stricken by the court.
Bolivar v. Waltman, COA April 3, 2012
All parties who would be necessary parties in a child custody case are required to be joined in a suit for grandparent visitation. This requirement of MCA 93-16-5 is jurisdictional, and may be raised by the trial court on its own, or by the appellate court on its own.
Cates v. Swain, COA April 17, 2012
Equitable remedies are not available to unmarried parties who acquire assets titled in only one party’s name through the contributions of both. The MSSC has granted cert in this case.
McMullin v. McMullin, COA May 29, 2012
If the chancellor’s opinion resolves fewer than all of the issues in the case, you must have the judge certify under MRCP 54(b) that there is no just reason to delay an appeal, and stating the reasons why. Otherwise, if you appeal, your appeal will be dismissed.
Easley v. Easley, COA June 5, 2012
When the parties enter into a consent for divorce and one of the contested issues who will be granted custody, the court may award the parties joint custody if the court deems it in the child’s best interest, regardless whether joint custody was listed as an option.
LePori v. Welch, COA June 26, 2012
There is no cause of action for termination of parental rights unless it is in contemplation of an adoption.
Rogers v. Rogers, COA July 24, 2012 and Dogan v. Dogan, COA October 9, 2012
If you are going to claim that the other party has perpetrated a fraud on the court as in Trim v. Trim, you have to plead fraud specially and prove all of its elements by clear and convincing evidence.
Marter v. Marter, COA August 7, 2012
Three acts that do not convert separate property to marital property for equitable distribution purposes: labor for plantation and maintenance; joint titling; and payment of property taxes.
Collins v. Collins, COA August 21, 2012
8.05 financial statements are the “gold standard” of proof as to assets and their values in a divorce, and the chancellor may rely on them solely in the absence of other evidence.
Strickland v. Strickland, COA August 28, 2012
Once the record has been transmitted to the MSSC in an appeal, the trial court has no jurisdiction whatsoever to reconsider, set aside, enforce or modify the order appealed from.
Brown v. Tate, 95 So.3d 745 (Miss. App. 2012)
The importance of entering an order of continuance on the return day in Rule 81 cases.
Ballard Realty, et al. v. Ohazurike, et al., MSSC September 6, 2012
A circuit court case in which the MSSC said that it was error for the trial judge to allow an expert to testify when the party offering him had not responded to the expert witness interrogatory seeking the substance of his testimony.
O’Briant v. O’Briant, COA October 16, 2012
Yet another case in which the appellate court points out that the Albright factors are not a scorecard in which winner takes all, but are a matrix for the court to use to assess the best interest of the child.
Jones v. Jones, COA November 13, 2012
When the chancellor has denied a divorce, she is under no duty to adjudicate custody pled as one of the prayers for relief in the divorce.
Estate of Holmes, COA November 29, 2012
The two subscribing witnesses to a will must be prepared to testify: (1) that they knew they were witnessing a will; (2) that the testator requested that they witness a will; and (3) that they did satisfy themselves that the testator was of sound and disposing mind when she executed the will.
Ford Motor Co. v. Ferrell, et al., MSSC December 6, 2012
Where the settlement that the chancellor is to approve is between private parties, the court should honor a party’s request to seal the record.
Sullivan and Stubbs v. Maddox, COA January 22, 2013
Attorney and his client jointly assessed with $43,000 in attorney’s fees and costs as a sanction where the proof showed that the lawyer had not investigated the merits of the claim before suit was filed, did not dismiss the case when discovery showed it was meritless, and then knowingly made false accusations against the judge on the record.
Gillespie v. Gillespie, COA January 29, 2013
Proof of grounds for divorce requires corroborating evidence, which is not necessarily strong enough in itself to prove the ground, but does tend to support the proof of the ground and a finding that it is true more likely than not.
Hollis v. Baker, COA February 12, 2013
If you fashion a hybrid alimony arrangement in a property settlement agreement or agreed judgment, and the court later finds it ambiguous, the ambiguity shall be resolved in favor of it being construed as periodic alimony, with all of the attendant attributes of periodic alimony.
Fore v. Fore, COA February 19, 2013
Both parties charged each other with post-separation adultery, and the chancellor denied both of them a divorce. Affirmed.
Caplinger v. Julian, COA February 12, 2013
Every judgment for child support must bear interest, set at a stated rate to be determined by the court pursuant to MCA 75-17-7.
Hall v. Lewis, COA February 12, 2013
Unmarried couple who lived together entered into mutual contract to provide for each other in their respective wills. Contract held not to be abrogated by the discontinuance of the relationship. Contracts for will are enforceable in Mississippi.
Forbes v. St. Martin, COA March 5, 2013
A must-read opinion on ethical aspects of contingent-fee contracts and the duties of out-of-state lawyers who participate in Mississippi litigation without applying to the court to appear pro hac vice.
A JUDGE NEEDS YOUR PRAYERS
April 30, 2013 § 5 Comments
Chancellor Ed Roberts of Oxford suffered stroke symptoms while on the bench last week. He at first insisted on finishing his docket, but finally relented and agreed to be taken to the ER at Baptist Hospital.
It was at the hospital that he learned that he has inoperable lung cancer and brain cancer. He is headed to MD Anderson Hospital in Houston.
I know he and his wife Sheila would appreciate your prayers. Judge Roberts’ brother, Larry, is a judge on the Court of Appeals. Both are natives of Meridian.
The Better Chancery Practice Blog 