August 11, 2011 § 4 Comments

Here’s a little nightmare scenario for you …

Chancellor renders a judgment of divorce. Among other provisions, the judge ordered that the homestead and certain personalty be sold by the Chancery Clerk, the administrative costs be paid, and then the remaining proceeds be divided between the parties. Your client is unhappy enough to pay you to file an appeal from the judge’s adjudication of equitable distribution. It takes him a couple of weeks to scrape together your fee, but the appeal clock still has plenty of ticks. Client comes in at last and pays the freight. You start work on the notice of appeal, and while you’re at it …

Twenty days after the judgment is entered, here comes a sua sponte order from the court clarifying the instructions to the clerk as to the specific items of personalty that were to be sold, and how the homestead proceeds were to be divided. You have other pressing matters on your plate, so you are relieved that the judge reset the appeal clock for you. Finally, 29 days after the clarifying order, your file your notice of appeal.

Is there a problem?

The above facts happened in Penton v. Penton, decided by the COA on April 13, 2010. Judge Barnes’ opinion points out that the appellate rules and our case law are silent as to the effect of a sua sponte order of the trial court such as that in this case. This second order was not a reconsideration with a substantive change of the original judgment. Reconsideration was limited to within ten days of the original judgment under MRCP 59. Nor did it involve correction of a clerical error under MRCP 60. The second order did not substantively change the award in the original judgment; it merely made the instructions clearer for the clerk.

Looking to federal case law, Judge Barnes concluded that ” … only when the lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken … begin to run anew.” She found that the provisions of the second order were not substantive, so it did not have the effect of extending the appeal time from the original judgment.

The opinion noted that entry of the second order still left time for appeal from the original judgment, and that counsel could have filed a motion with the trial court to extend the time for appeal, if that were needed to evaluate the sua sponte order, but no such motion was filed.

The result was that the appeal was dismissed as untimely filed.

As a matter of practice, this case illustrates that it’s better under the current state of the appellate rules to file a premature notice of appeal than to file too late. Once the deadline passes without a motion to extend having been filed, the appeal is dead.

I’ve held off commenting on this case because it’s an unpublished opinion and obviously addresses a matter of first impression of Mississippi. I have surmised that publication is being held pending evaluation by the Supreme Court, since that court has jurisdiction to adjudicate first impression cases.


December 8, 2010 § 5 Comments

It was long the law in Mississippi divorce cases that venue is jurisdictional, and that an action filed in the wrong county had to be dismissed, and could not be transferred to the appropriate county.  See, Carter v. Carter, 278 So.2d 394, 396 (Miss. 1973).  Venue in a Mississippi divorce is said to be “exclusive” because the divorce statutes define where venue lays.  The action must be brough exclusively in the county specified.  Where venue is exclusive, it is jurisdictional.    

Against this backdrop, the Mississippi Supreme Court decided the case of National Heritage Realty, Inc. v. Estate of Boles, 947 So.2d 238 (Miss. 2006), reh. den. February 8, 2007.  The case involved an estate opened in Tallahatchie County, which was the county where the decedent formerly lived before relocating to a nursing home in Leflore County, where she subsequently died.  The chancellor found that venue for the estate was properly in Leflore County, and had ordered that the estate be transferred from Tallahatchie County to Leflore.  The Supreme Court, by Justice Easley, ruled that the venue statute for estates is exclusive, and, therefore, jurisdictional.  In the absence of jurisdiction, the chancellor was without authority to take any action, even a transfer.  In the absence of jurisdiction, his action was void and not merely voidable.  Justice Easley at page 248 based his reasoning on the established divorce venue law, to which he analogized the estate venue statutes. 

The only problem is that the divorce venue statute, MCA § 93-5-11, had been amended in 2005, a year before the Boles decision, to add the following sentence:  “Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.”  MRCP 82(d) reads, in part:

“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 if originally filed therein … “

Justice Easley’s opinion makes no mention of the amendment.

From time to time I get requests from lawyers to transfer a case, usually from Lauderdale to Clarke County, although I have been requested to transfer to other counties.  This occurs primarly with out-of-district lawyers who are unfamiliar with the fact that some people with a 39301 zip code and a Meridian address actually reside in Clarke County, or some folks with Collinsville addresses actually reside in Newton or Neshoba, or with Daleville or Lauderdale addresses actually residing in Kemper.  The predominant type of case lawyers want transferred involves the Structured Settlement Protection Act, MCA § 11-57-1, et seq.  I presume they prefer transfer over dismissal because dismissal requires filing a new petition and starts over the law’s technical notice and time requirements. 

So how can we reconcile Boles and MCA § 93-5-11 and MRCP 82(d)?

In the absence of any definitive guidance from the appellate courts, here is my interpretation:

  1. If the case is not a divorce and venue is exclusive (i.e., defined in the statute upon which your action is based), then the case can not be transferred.  It must be dismissed and refiled. 
  2. If venue in the case arises under MCA § 11-11-3, the general venue statute (which has been held to be applicable to actions in chancery court where there is no exclusive venue statute), the case may be transferred per MRCP 82(d).
  3. If the case is a divorce, it may be transferred per MCA § 93-5-11, but see the caveat below.

Some observations based on the above:

Cases under the Structured Settlement Protection Act may not be transferred because MCA § 11-57-11 includes an exclusive venue provision.

An action solely for an injunction is under the general venue statute because MRCP 65 does not define venue for the action.  A Rule 65 action may be transferred.

Although the statute expressly authorizes transfer of a divorce, consider the ramifications before you do it.  The divorce statutes include an exclusive venue provision.  Under Boles, an action filed in the wrong venue in  an exclusive venue case is void ab initio, meaning that the chancellor has no authority to take any action other than to dismiss.  The court lacks subject matter jurisdiction.  Price v. Price, 32 So.2d 124 (Miss. 1947).  Lack of subject matter jurisdiction is a defect that may be raised at any time, even years after the fact, because the action of the court lacking jurisdiction is void, and not merely voidable.  Would you want to risk having your client’s divorce set aside somewhere down the road by the other party who is disgruntled with the outcome?  If I were the attorney, my preference would be to take the safe path and dismiss the case with improper venue rather than transfer it.

[I hope this is a helpful starting point for Frankie and colleagues at MC Law]


September 8, 2010 § 11 Comments

Rule 41(d), MRCP, is the familiar rule by which the Chancery Clerk is authorized to send out a notice to all counsel and self-represented parties in cases ” … wherein there has been no action of record during the preceding twelve months …”  that the case will be dismissed for want of prosecution.  The rule requires the clerk to dismiss the action unless within thirty days of the notice, ” … action of record is taken or an application in writing is made to the court and good cause is shown why it should be continued as a pending case.” 

You have received such a notice, and, galvanized into action, you toss it on your paralegal’s desk and say, “Here, take care of this,” as you saunter out the door trying not to be late for your tee time.  The paralegal scours the files and finds that your usual response is to file something called “Notice to Keep Case on the Active Docket,” and she tosses a copy of it on the secretary’s desk and says, “Here, do me one of these,” and returns to her office to continue whittling away at a four-foot-tall mound of discovery.  In due course, the secretary produces said pleading, you sign it, the paralegal files it, and everything is fine.  Until the next week, when you find your case was dismissed despite your efforts.  What went wrong?

In the case of Illinois Central Railroad Co. v. Moore, 994 So.2d 723, 728 (Miss. 2008), the Mississippi Supreme Court held that a Circuit Judge should have dismissed the plaintiff’s suit after he had received Rule 41(d) notice, and his attorney filed nothing more than letters with the court requesting that it not be dismissed.  The court reasoned that Rule 41(d) requires that some procedural action that would have the effect of moving the case forward be filed, or that a proper motion under the rules be filed and noticed, the motion showing good cause why the action should not be dismiised and asking the court to rule affirmatively that it should not be dismissed. 

There was evidence of severe dilatoriness on the part of plaintiff’s counsel in the ICC case.  The appellate decision, however, did not turn on his want of action, but only found it to be an aggravating factor.  The court’s holding turned on counsel’s non-compliance with the rules, and the result was dismissal of the lawsuit.  Although dismissal under 41(d) is without prejudice, the dismissal in ICC was fatal due to the statute of limitations.

The Supreme Court decision noted that there has been a relaxed attitude about responses to 41(d) notices, but stated that it would not follow the same path.  ICC now stands for the proposition that if you skirt by the rule and succeed in having your action kept on the active docket, you will likely fail if the other side appeals.

If you want to keep an action from being dismissed under Rule 41(d), simply follow the rule and either:  (1) Take some action of record, such as serving discovery, or filing a legitimate motion to advance the case; or (2) File a motion with the court asking that it not be dismissed, stating good cause to support your position, and notice the motion for hearing before the thirty days expires.  Anything short of either action could result in a favorable ruling by a more relaxed trial judge, but will leave you vulnerable on appeal.

Caveat:  Remember that Uniform Chancery Court Rule 1.10 requires that discovery must be completed within 90 days of service of an answer, unless extended by the court.  It is unlikely that this judge would have allowed either party an extension that would cause a case to be pending as long as a year.  It would be difficult to convince a judge that propounding discovery after the discovery deadline has expired would be an action of record that would have the effect of moving the case forward.

Comment:  The consequences of Rule 41(d) to a cause of action are usually not as dire in Chancery Court as they are in Circuit.  Statutes of limitation are not as often a concern in Chancery.  For clients on an unequal financial footing, however, a 41(d) dismissal can cause expenses and fees to increase dramatically, and may spell the end of meritorious litigation.  It may also require you to represent a client through an appeal that you were not paid to handle, just to avoid some other action by your client.

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