April 8, 2015 § 3 Comments
There are some proposed rule changes up for comment at the MSSC web site. You can access them at this link.
The changes would be to MRCP 16, primarily, with a couple of affected words fixed in R26. The other change is to the Circuit and County Court Rules.
The rule change is designed, as I understand it, to alleviate the lengthy waits that litigators experience in circuit court.
While the changes appear to be a probably effective one-size-fits-all solution to the kind of litigation involved that transpires in circuit court, I think if they were rigidly applied in chancery, it would actually have the effect of slowing down proceedings and clogging up the docket. I have been using scheduling orders for years, and our deadlines are much tighter than these proposed.
The rule changes specifically do not apply to R81 matters, which is a good thing. But divorces are R4 matters, although there is that language that says the MRCP has limited applicability to Title 93 matters, which includes divorce.
Anyway, the MSSC invites comment. You are cordially invited to the discussion. Take advantage of the opportunity.
December 3, 2012 § Leave a comment
MRCP 4(c)(5) allows for process by certified mail on a natural person outside the state. There are two requirements: (1) that a copy of both the summons and the pleading be sent by certified mail, return receipt requested, restricted delivery; and (2) that there be evidence of the delivery or by the envelope returned marked, “Refused.” If either of the requirements are not met, you have to reissue process.
There must be proof that both “the summons and the complaint” (that’s the language of the rule, which I interpret to mean the summons and the pleading initiating the instant action) were included in the certified mailing. You can do this yourself by affidavit or certficate of service in the court file, or you can ask the clerk to do it with a notation on the docket, as in MRCP 4(c)(4)(C). Your notice that the petition or other pleading was sent, not mentioning the summons, is inadequate process. Likewise, merely mailing the summons alone is not enough.
It is not adequate for the process to be issued and addressed to “John Smith,” and for the return receipt to be signed by “J.W. Smith” or “Kathy Smith for John Smith,” or “Phyllis Smith, mother of John Smith,” or any other person. Also, the record must show that the signature on the receipt is actually that of the party to be served. In a recent case in my court, the signature on the receipt unquestionably did not even remotely resemble the defendant’s signature on the original property settlement agreement or on a return mail receipt for an earlier proceeding.
And, of course, the process must be timely served. For a Rule 81 summons, the return receipt must show deliver within the requisite time.
Also, the rule specifies that it applies to “a person outside this state.” In my opinion, it does not apply to natural persons located in Mississippi. There is a first-class-mail process provision for persons in Mississippi at MRCP 4(c)(3), and it does allow at its subsection (B) for service “in any other manner permitted by this rule,” if the required acknowledgment of mailing is not returned. But Rule 4(c)(5) specifically limits itself to “a person outside this state …”
The rules for serving an out-of-state corporate entity or an out-of-state government entity are spelled out separately in MRCP 4(d)(4) and (8), respectively.
When I practiced, I almost never used certfied mail process (or first class mail either, for that matter). In my experience, postal employees don’t take any care to make sure that the deliveree is actually the addressee, or that the delivery is truly “restricted” within the meaning of the term, or that any of your needs are met. They are more concerned with getting that letter out of their hands, with a signature on the green card that they can hand off to somebody else. I usually persuaded my clients to go to the extra expense of retaining the services of a process server to save time and frustration. But I recognize that in these times of economic strain your clients appreciate anything you can do to save them some money.
If you’re going to use certified mail process, take the time and pay the attention to do it right. Read the rules. Process rules are to be strictly construed. Sloppy handling will result in unnecessary, frustrating delay for your client and further expense to get that summons served.
August 15, 2011 § Leave a comment
What difference does it make whether the other party has the right form of process if he had actual notice?
Consider the case of Clark v. Clark, 43 So.3d 496 (Miss. App. 2010). The facts are pretty straightforward:
Aileen filed for divorce from her husband Willie. She filed and had issued a Rule 81 summons for a temporary hearing and another Rule 81 summons on her complaint for divorce. Willie did not appear for the temporary hearing, and the chancellor entered a temporary order favorable to Aileen. On the date set in the summons on the complaint, Willie was again called and did not appear. The chancellor entered a judgment of divorce on July 25, 2008, awarding Aileen a divorce, custody, child support, alimony, a vehicle and a name change.
On September 23, 2008, Willie filed a motion under MRCP 60(b) to set aside the judgment, which the chancellor refused. Willie appealed.
On appeal, Willie’s sole assignment of error was that since he was not served with a Rule 4 summons on the divorce, the court lacked jurisdiction.
The COA reversed, and here are the important points:
- MRCP 4 “provides for the means of service of the original complaint and the form of the accompanying summons.” Sanghi v. Sanghi, 759 So.2d 1250, 1253(¶ 11) (Miss. App. 2000); see also Carlisle v. Carlisle, 11 So.3d 142, 144(¶ 9) (Miss. App. 2009). “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. App. 2002).
- Because Rule 81(d) embodies “special rules of procedure” that only apply to the matters listed in Rules 81(d)(1)-(2), and divorce is not one of these enumerated matters, service of the complaint for divorce fall outside the scope of Rule 81. See M.R.C.P. 81(d). Thus, the general rules govern, see Sanghi, 759 So.2d at 1256(¶ 27), and Rule 4 contains the proper procedure for serving the complaint.
- In Rule 81 matters, a Rule 81 summons must be issued; otherwise, service is defective. See, e.g., Powell v. Powell, 644 So.2d 269, 274 (Miss. 1994); Saddler v. Saddler, 556 So.2d 344, 346 (Miss. 1990); Serton v. Serton, 819 So.2d 15, 21(¶ 24) (Miss. App. 2002).
- 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.
- Rule 4 lists the requirements for a valid summons issued under Rule 4, and provides in pertinent part: “The summons shall be dated and signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, if any, otherwise the plaintiff’s address, and the time within which these rules require the defendant to appear and defend, and shall notify him that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint…. Summons served by process server shall substantially conform to Form 1A.” M.R.C.P. 4(b) (emphasis added). The summons in Form 1A informs the defendant that he or she is “required to mail or hand deliver a copy of a written response to the Complaint” to the plaintiff’s attorney within thirty days or a default judgment will be entered against the defendant. M.R.C.P.App. A. Form 1A. The form further provides that the defendant “must also file the original of [his/her] response with the [appropriate trial court clerk] within a reasonable time[.]” Id. As we have noted before, use of the sample forms is not required, but their use is good practice because it “removes any question of sufficiency [of process] under the Rules.” Sanghi, 759 So.2d at 1256(¶ 28) (citing M.R.C.P. 84).
In his opinion overruling Willie’s Rule 60(b) motion, the chancellor acknowledged that Rule 4 is the proper form of summons in a divorce case, but found that the Rule 81 summons used by Aileen for the complaint substantially conformed to Form 1A. The summons did inform Willie that a judgment would be entered against him if he failed to appear and defend, as is required by Rule 4(b). However, the summons at issue contained substantial deviations from Rule 4. First, the Rule 81 summons stated: “You are not required to file an answer or other pleading but you may do so if you desire.” Second, the Rule 81 summons did not specify any deadline-specifically, that Willie was required to answer with a response to his wife’s attorney within thirty days. Third, the Rule 81 summons did not inform Willie that he was required to also file his answer with the chancery clerk within a reasonable time.
The COA, citing Sanghi, disagreed, finding substantial differences between Rule 4 and 81 summons, and held that failure to use the proper form of Rule 4 summons deprived the trial court of jurisdiction in the case, requiring reversal.
The COA also considered whether the resulting reversal of the trial judge’s denial of Rule 60(b) relief required setting aside the divorce, and found that it did. The court said: 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. The court must set the void judgment aside.” Soriano v. Gillespie, 857 So.2d 64, 69-70(¶ 22) (Miss. App. 2003). A judgment is deemed void if the court rendering it lacked jurisdiction. Morrison v. DHS, 863 So.2d 948, 952(¶ 13) (Miss. 2004). A judgment is void “if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.” Id. (citation omitted).
The court also cited Kolikas at 879 for the proposition that the defendant is under no duty to notice what is filed in court against him unless he is properly served according to the rules, and the rules are to be strictly construed and applied as to process. It does not matter that the defendant knew that there was a lawsuit pending against him if he was not effectively served with process and notice.
Oddly — at least I find it odd — the court left standing the judge’s temporary judgment on the basis that Aileen had properly gotten process under Rule 81, and that the trial court did have personal jurisdiction over Willie. I say this is an oddity because in this district we have followed the principle that temporary relief is proper only in the context of a fault-based divorce action. I have never heard of a temporary action proceeding on its own, unattached, so to speak, to an underlying divorce action in which the trial court has personal jurisdiction over the defendant. But that is what resulted here. The COA opinion stated:
Finally, Willie claims that Aileen’s motion for temporary support was “nothing more than a derivative action” of the divorce complaint, and, therefore, the court’s lack of jurisdiction over the divorce complaint extends to the motion for temporary relief.
Although Mississippi appellate courts are generally without jurisdiction to hear direct appeals from temporary orders, Michael v. Michael, 650 So.2d 469, 471 (Miss. 1995) (citing Miss.Code Ann. § 11-51-3 (Supp.1993)), the denial of a Rule 60(b) motion is a final judgment that is reviewable. Sanghi, 759 So.2d at 1255(¶ 22).
As Rule 81 makes clear, an action for temporary relief in divorce and an action for divorce are two separate matters. Each requires the issuance of a different form of summons-the former requiring a Rule 81 summons and the latter requiring a Rule 4 summons. We simply do not see how improper service in the divorce action affects the chancery court’s jurisdiction to hear temporary matters. We, therefore, reject the notion that failure to achieve proper service in the divorce action renders the action for temporary relief void. Furthermore, we note that a separate Rule 81 summons was properly issued in Aileen’s action for temporary support, thus giving the chancellor jurisdiction to award temporary relief. This issue is without merit.
Another interesting wrinkle in this case is Judge Griffis’s specially concurring opinion where he says that ” … Rule 81 is a treacherous and often misunderstood rule.” He points out that parties on appeal have ” … fallen prey to the hidden tentacles …” of the rule and urges the Supreme Court to revise it.
I have heard other chancellors at judges’ meetings complain about Rule 81, but we really have not had any problems in this district understanding and following it (knock on wood) to this point. I would not be against eliminating Rule 81 if we could modify Rule 4 to create a short-notice procedure in certain actions unique to chancery such as temporary matters, contempts and certain probate proceedings where notice is required.
The moral of the Clark story is to comply strictly with the rules governing process or be prepared to clean up the mess that will follow.
June 27, 2011 § 9 Comments
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.
January 25, 2011 § 2 Comments
MCA § 91-7-295 addresses summons or publication for a final account in an estate, conservatorship or guardianship. The entire statute reads as follows:
The final account so presented with the statement as to parties, shall remain on file, subject to the inspection of any person interested. Summons shall be issued or publication made for all parties interested, as in other suits in chancery court, to appear at a term of court, or before the chancellor in vacation, not less than thirty (30) days from the service of the summons or the completion of the publication, and show cause, if any they can, why the final account of the executor, administrator, or guardian should not be allowed and approved. [Emphasis added]
MRCP 4 (c) (4) (B), which governs procedure in “suits in chancery court,” states: “The defendant shall have thirty (30) days from the date of first publication to appear and defend.”
So which is it? Thirty days from completion of publication as the statute says? Or thirty days from first publication as the rule says?
The Order Adopting the Mississippi Rules of Civil Procedure issued by the Supreme Court on May 29, 1981, expressly states that ” … in the event of a conflict between these rules and any statute or court rule previously adopted these rules shall control.”
That language would seem to dispose of the matter, but for MRCP 81 (a) (8), which limits the applicability of the rules to matters under MCA Title 91. There is also the fact that the law of executors and administrators is entirely a creature of statute, which requires strict application.
What should you do? I would follow the statute. Doing so does not run afoul of MRCP 4, and actually allows more time for interested parties to act. I would also publish returnable to a day certain more than thirty days after the completion of publication, so there is no doubt on the part of those summoned as to the date by which they are required to act. If you do not follow the statute, you run the risk that a disgruntled party may file suit at a later point attacking your accounting on the ground that the court lacked jurisdiction to proceed.
Thanks to Chancellor Gene Fair for pointing this out.