Failure to Serve Process Within 120 Days in a Rule 81 Case

December 3, 2019 § 1 Comment

MRCP 4(h) is pretty clear that failure to serve process within 120 days of filing the complaint without “good cause” requires dismissal of the complaint.

But that’s Rule 4. How does that apply in Rule 81 actions?

In her appeal to the COA, Natasha Hilton tried to convince the court that the counterclaim filed against her by her ex-husband Chris should have been dismissed because she was not served with process within 120 days of filing. She argued that the trial court lacked jurisdiction. The chancellor brushed aside that argument, and so did the COA. In Hilton v. Hilton, handed down November 5, 2019, the court affirmed. Judge Tindell wrote for a unanimous court:

¶11. On appeal, Natasha first argues that Chris failed to properly serve her with a Rule 81 summons related to his counter-petition for contempt, modification, and attorney’s fees in violation of Rule 4(h). As such, Natasha contends that the chancellor lacked jurisdiction to enter his final judgment against her. Natasha further argues that the chancellor erroneously granted an extension to serve process in this case even though Chris failed to show good cause as to why he did not serve Natasha within 120 days. Chris argues, however, that Rule 81, rather than Rule 4(h), governs service of process in this matter and that the 120-day deadline is inapplicable here. Therefore, we must first address whether Rule 4(h) or Rule 81 applies to the foregoing case.

¶12. Mississippi Rule of Civil Procedure 4(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.

(Emphasis added). Rule 81(a)(9), however, states 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, . . . [including] Title 93 of the Mississippi Code of 1972.

(Emphasis added). Title 93 of the Mississippi Code covers all matters related to domestic relations, including modifications of custody. Roberts v. Lopez, 148 So. 3d 393, 398 (¶9) (Miss. Ct. App. 2014). Rule 81(d) states that “[t]he special rules of procedure set forth in this paragraph . . . shall control to the extent they may be in conflict with any other provisions of these rules.” Under Rule 81(d)(2), modification-of-custody-matters are triable within “7 days after completion of service of process in any manner other than by publication.” Rule 81(d), however, places no 120-day deadline for service of process, as in Rule 4(h). Rather, Rule 81(d)(5) states only that

upon the filing of any action or matter listed in subparagraphs (1) and (2) above, summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term or vacation, at which the same 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.

(Emphasis added).

¶13. This Court specifically addressed the applicability of Rule 4(h) and Rule 81 to modification-of-custody matters in Roberts. In Roberts, a mother filed a complaint for fraud against the father of her child after the father allegedly forged her signature on a joint complaint for modification of custody, which gave him sole custody of the child. Roberts,148 So. 3d at 397 (¶6). The mother later filed an amended complaint, which asked the chancellor to set aside all previous orders associated with the joint complaint or, in the alternative, to modify custody. Id. The mother served the father with a Rule 81 summons on the amended complaint, ordering his appearance for a hearing on the matter. Id. After a hearing, the chancellor modified the couple’s custody arrangement, giving the mother and father joint custody of the child. Id. at (¶7). The father appealed to this Court, arguing that the mother failed to serve him with the amended complaint within 120 days in violation of Rule 4(h). Id. at 398 (¶9).

¶14. In our analysis, this Court cited the Rule 81 procedures mentioned above as they related to the mother’s custody-modification matters. Id. at (¶¶9-10). This Court found that as a domestic-relations matter Rule 81 controlled service of process in the mother’s case, and not Rule 4(h). Id. at (¶10). We found specifically that because the father had been served with a Rule 81 summons commanding him to appear before the chancellor on the court ordered hearing date, “it [was] of no moment” that the mother served the father with her Rule 81 summons more than 120-days after filing her complaint. Id. We ultimately affirmed the chancellor’s modification of custody in this case. Id. at 402-03 (¶25).

¶15. Comparing the facts in Roberts with the facts before this Court today, we are obliged to apply the same holding to the case at hand. Similar to the mother in Roberts, Chris sought modification of his custody arrangement with Natasha, and therefore, the procedures in Rule 4(h) do not apply. Chris filed the counter-petition on September 20, 2016 and served Natasha with a Rule 81 summons on January 24, 2017, in compliance with Rule 81(d)(5). Natasha points out that Chris’s Rule 81 summons noticed the hearing for January 30, 2017, which was six days after she had been served as opposed to seven days as required by Rule 81(d)(2). However, in accordance with Rule 81(d)(5), the chancellor properly ordered the hearing be continued to July 18, 2017, upon agreement of the parties.

¶16. We therefore find that Chris effectively served process upon Natasha in compliance with Rule 81. Because we find service to be proper in this case, we need not address Natasha’s remaining arguments regarding good cause and dismissal under Rule 4. We further find that the chancellor committed no error in hearing and ruling upon Chris’s counter-petition.

A few observations:

  • It’s a counterclaim, not a counter-petition. I know the COA has to use the nomenclature of the parties and the trial court to avoid confusion.
  • Divorce is a Rule 4 action, so Rule 4(h) and its body of case law do apply. I wonder how that fits with the situation where that original divorce complaint has been on file 200 days before process is issued while you are trying to get an agreement for an ID divorce? Of course, statute of limitations doesn’t come into play as it does in circuit court, but still …
  • I know what Rule 81 says, but please let me know if you are being required to issue summons on a counterclaim in your district. We never have in this district because the plaintiff-counterdefendant has already submitted himself or herself to the personal jurisdiction of the court and the purpose of process is to acquire personal jurisdiction; notice of the counterclaim is by Rule 5. No other district I ever practiced in required it. The only court that requires it to my knowledge is the COA. Maybe it’s just my ignorance.
  • In any event, how could Natasha think that after a year of participation in the case, including agreed orders setting and continuing hearings, that she was not under personal jurisdiction? If one is never served with process at all, but appears and participates without objection, that court has personal jurisdiction over that person. The chancellor cut through that smoke and got right to the merits, as he should have.
  • You should read the convoluted facts involving settings and continuances, claims of non-process, calendar-hopscotching, and more. It’s ‘way too convoluted to try to capture here.

Subjecting One’s Self to the Jurisdiction of the Court

March 12, 2014 § 2 Comments

The MSSC case of Pierce v. Pierce, handed down February 20, 2014, includes a couple of pretty important points of law that you should be aware of in your chancery practice.

Martin and Star Pierce were married in 2000, and lived in Harrison County, Mississippi. They separated, and Martin filed for divorce in the State of Washington in 2007. Since the Washington court had no personal jurisdiction over Star, it granted a divorce only.

Martin later filed an action in Harrison County seeking partition of the parties’ jointly-owned home and settlement of the parties’ financial obligations incurred during the marriage. Star counterclaimed for equitable distribution, alimony, and attorney’s fees.

The chancellor equitably divided the marital estate, including Martin’s military retirement, and awarded Star alimony and attorrney’s fees.

Martin appealed, complaining (1) that the Washington judgment was res judicata as to Star’s claims for equitable distribution and alimony, and (2) that, since he had only requested partition, he had not consensually submitted himself to Mississippi jurisdiction for division of his military retirement.

As for the issue of res judicata, the MSSC said, at ¶ 19, that although the Washington court properly had subject matter jurisdiction over Martin’s divorce action, it lacked personal jurisdiction over Star. A court with personal jurisdiction over only one of the parties in a divorce may not divide the parties’ assets. Therefore, the issues of property division and alimony were not res judicata by virtue of the Washington judgment, and the Mississippi Chancery Court had jurisdiction over those issues.

Note: It happens from time to time that a party, unhappy with a Mississippi temporary order or separate maintenance order, or with the slow progress of his case, or lacking viable grounds, moves to another state or jurisdiction and obtains a divorce. That does not deprive Mississippi of jurisdiction to adjudicate all of the other issues within its territorial jurisdiction that are pendant to a divorce, such as equitable distribution, alimony, child custody, child support, and so on, if the court obtains personal jurisdiction. In this case, Martin submitted himself to the personal jurisdiction of the court, and thus opened the door to the court’s adjudication of all those pendant issues.

A previous post on exactly what constitutes res judicata is at this link.

With respect to Martin’s assertion that his partition suit did not open him to other relief via counterclaim, the MSSC disagreed at ¶ 23: “It is well-established ‘that by filing suit a plaintiff automatically waives any objections he might otherwise have on grounds of personal jurisdiction to counterclaims presented against him in the suit'” [Citations omitted]

Note: Not a whole lot needs to be said about this particular point. When you invoke the jurisdiction of the court, you open yourself to any and all claims and actions that the other party has against you, both arising out of the same subject matter as the original suit (MRCP 13(a)), as well as any not arising out of the subject matter of the original suit (MRCP 13(b)).

You should read the court’s opinion. Its rationale and the authority are both something you can use in your library of helpful authority.

Rule 81 Confounded

July 17, 2013 § 10 Comments

This is my 40th year in the law. The past 6 1/2 years have been on the bench, dealing exclusively with chancery matters. Before that, 33 years in practice, primarily in chancery. In my 39 1/2 years of experience, 31 have been under the MRCP.

Until yesterday, with one exception, have I ever seen MRCP 81 applied as it was yesterday in Curry v. Frazier, decided by the COA.

The one exception is Pearson v. Browning, decided last Fall.

If these two cases are good law, and they are not anomalous, you will have to drastically change the way you do process in counterclaims in chancery court. In my opinion, together both cases say that once the plaintiff has submitted himself to the jurisdiction of the court by filing a pleading, you must still get jurisdiction by R81 process over him in order to pursue your counterclaim. Yes, that’s jurisdiction times two.

Other chancellors I have talked to are scratching their heads. This is a new way to go at jurisdiction in chancery. Or is it? Has it been your experience that R81 works this way?

I wonder whether the COA has an agenda here.


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