Failure to Join Necessary Parties

July 26, 2017 § Leave a comment

Dorothy True died in 2014, at age 100. Her husband had predeceased her. She was survived by her four children: Ann Schmidt; Mary Hegwood; John True, who died after Dorothy’s death; and Jim True.

Jim filed to admit Dorothy’s eight-page holographic will to probate. Ann and Mary petitioned the chancery court to contest the will based on some formal irregularities. Following a hearing, the chancellor ruled that the will was a valid holographic will. It appears that Ann and Mary had proceeded against the executor and anyone else who had entered an appearance. But the estate of John, and some other devisees, as well as some heirs of the decedent, were not made parties. Ann and Mary appealed.

The COA reversed in the case of In the Matter of the Last Will and Testament of True: Schmidt and Hegwood v. True, handed down May 23, 2017, Judge Wilson writing for the court:

¶7. On appeal, Ann and Mary argue that the chancery court lacked jurisdiction because necessary parties were not joined. Unfortunately, we must agree. Section 91-7-25 of the Mississippi Code Annotated provides that “[i]n any proceeding to contest the validity of a will, all persons interested in such contest shall be made parties.” Our Supreme Court has made clear that this requirement is both mandatory and jurisdictional:

We have consistently held that the statutory mandate is jurisdictional and the court has no power to proceed with the contest until all interested parties are joined. [Robert A.] Weems, Wills and Administration of Estates in Mississippi, § 8–4, p. 180 (1988) states:

[T]he Legislature has provided that all interested persons must be made parties to the will contest. This requirement is jurisdictional. The Court has no power to proceed with a will contest, if any of the interested parties are not before the court. If the court does proceed the decree is invalid. It does not bind anyone, including those who participated in the contest. Moreover, the right to appeal on the basis of nonjoinder is not waived by the failure to plead it in the trial court.

Interested parties are those whose direct, pecuniary interests will be either detrimentally or advantageously affected by the probate of the will. Included in this group would ordinarily be a decedent’s heirs at law, beneficiaries under earlier wills, and beneficiaries under the will being contested. (emphasis added)

. . . .

One of the primary purposes of the statute is the fervent desire to avoid multiple litigation, and the court’s interest in consistent, efficient and final settlement of controversies. In Moore v. Jackson, 247 Miss. 854, 860, 157 So. 2d 785, 787 (1963), we stated:

The court cannot properly entertain a contest of the will without having before it all the parties interested in such contest. It was error to proceed without having them before the court. “There ought to be only one contest of the will, and, if the parties are not before the court when the will is being contested, of course their rights could not be affected by such contest.” This Court has consistently followed that interpretation in other cases.

. . . .

[S]uch parties were necessary, indispensable parties to the contest of the will. The court was without power to proceed without them.

To grant validity and credence to [a] court’s action in proceeding with [a will] contest without joinder of all interested parties would undermine the legislative mandate of [section] 91-7-25. In Estate of Schneider, 585 So. 2d 1275, 1277 (Miss. 1991), we had the occasion to reflect on Moore and stated:

In Moore this Court held that a chancery court did not have the authority to hear a will contest until “all persons interested” were made parties.

. . . .

Moore remains good law insofar as it holds trial proceedings must be held in abeyance until all necessary parties are joined in a suit contesting a will. Garrett v. Bohannon, 621 So. 2d 935, 937-38 (Miss. 1993) (internal citations omitted). The Court held that a judgment entered in a will contest “absent joinder of all necessary parties is void” and “must be set aside.” Id. at 938. In both Garrett and Moore, supra, the Supreme Court made it absolutely clear that although a failure to join a necessary party may be waived in some types of cases, it cannot be waived in a will contest; it may be raised for the first time on appeal, even by a party who participated below and failed to join the missing parties. See id. at 937-38; Moore, 247 Miss. at 787-88; 157 So. 2d at 861-63.

¶8. Returning to the present case, it is evident that we must reverse and set aside the judgment below because all necessary parties were not joined. John’s estate and Jamie are entitled to inherit under the contested will but were not joined. John’s estate and Frances’s two daughters were entitled to inherit under the law of intestate succession but were not joined. All were interested parties within the meaning of section 91-7-25 and Supreme Court precedent.

¶9. On appeal, Jim argues that his sisters waived this issue, that the missing parties’ interests were adequately represented, and that their joinder would not have made the slightest difference. [Fn omitted] We are sympathetic to these arguments. However, our Supreme Court has held specifically and repeatedly that the statutory requirement cannot be waived because it is both mandatory and jurisdictional. Its decisions do not reflect careless or imprecise use of the term “jurisdictional.” [Fn omitted] Rather, the point has been made and reaffirmed with deliberation and clarity over the course of many years. As such, any relaxation of or exception to this requirement must come from the Supreme Court or the Legislature.

¶10. Accordingly, the judgment rendered by the chancellor absent joinder of all interested parties is void and must be set aside. The case is remanded for joinder of all interested parties pursuant to the statutory mandate. Garrett, 621 So. 2d at 938.

So, who were the unjoined interested parties who were necessary to jurisdiction in this case? Note at ¶8 that the COA finds both the unjoined devisees and the unjoined heirs as necessary for jurisdiction. That’s because if the will is set aside, the heirs would stand to inherit.

This one is on the lawyers. It’s not the judge’s job to investigate and inquire about who should be made parties in a case such as this.

Revenge of the Missing Link

February 14, 2017 § Leave a comment

“Heir property” is an often-heard term in Mississippi, used to describe the convoluted and sometimes impossibly complicated ownership of real property that has passed through several generations without administration of an estate or probate of a will.

Walter and Ressie Quinn inherited an interest in some property from Walter’s mother. Although most of the siblings quitclaimed their interests to the Quinns, one sibling quitclaimed her interest to Jessie and Arma Morton. The Quinns filed suit against Arma for partition of the property. They did not join Jessie.

When Arma filed her answer she did not include a defense of failure to join a necessary and indispensable party (R12(h)(2)).

The court ordered a sale of the property, which took place on the courthouse steps on September 29, 2014. When it came time to confirm the sale, Arma raised for the first time that the sale was invalid for failure to join Jessie as a party. So the Quinns filed an amended pleading adding Jessie as a party, and the Mortons waived process and filed an answer. At a final hearing, it was discussed that, although Jessie objected to a sale, he declined to testify.

Following court proceedings, the judge signed a judgment confirming the sale and finding that Jessie had failed to show that he had been prejudiced in any way by the sale. The judgment also found that Jessie had failed to show prejudice because Arma had failed to raise a R12(h)(2) defense. Arma and Jessie appealed.

In Morton v. Quinn, handed down December 13, 2016, the COA reversed and remanded. Judge James wrote for the majority:

¶10. Since the first issue is dispositive, we decline to address the other issue on appeal. “[T]he decision of a trial judge will stand ‘unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.’” Ashmore v. Miss. Auth. on Educ. Television, 148 So. 3d 977, 983 (¶17) (Miss. 2014) (quoting Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 34 (¶4) (Miss. 2003)). After the amended petition was filed, adding Jessie as a respondent, the sale was not vacated, and Jessie was not given a chance to meaningfully participate in the disposition of his property. Jessie favored a partition in kind rather than a sale, yet he was not afforded the opportunity to respond to the Quinns’ request for a judicial sale.

¶11. Mississippi Code Annotated section 11-21-11 (Rev. 2004) permits a judicial partition by sale only where: “[A] sale of the lands, or any part thereof, will better promote the interest of all parties than a partition in kind, or if the court be satisfied that an equal division cannot be made.” At the hearing to confirm the judicial sale, the Quinns asserted that Jessie had to illustrate that the omission of his name as a respondent resulted in prejudice. The trial court afforded him with an opportunity to testify as to any prejudice that he may have incurred. Jessie declined to testify but asserted that he was prejudiced by the sale since he preferred a partition in kind. Moreover, the record shows that Jessie lived on the property, and that the sale would directly affect the location of his patio and other fixtures. Since the disposition of the land directly impacted Jessie’s rights to the subject property, the judicial sale should have been vacated.

¶12. In Shaw v. Shaw, 603 So. 2d 287, 294 (Miss. 1992), the Mississippi Supreme Court held, “While the question of joinder of an absent person generally must be timely raised in the trial court, an appellate court may consider the issue even though it was not initially raised below, and may do so sua sponte.” In the present case, the nonjoinder was raised, but it was not properly raised by the filing of a motion. However, Jessie did raise the matter at the hearing to confirm the sale, which sufficiently preserved the matter on appeal. “Rule 12(h)(2) of the Mississippi Rules of Civil Procedure requires [parties] to raise the issue of failure to join a necessary and indispensable party in the pleadings under [Mississippi ] Rule [of Civil Procedure] 7(a) or by motion for judgment on the pleadings or at the trial on the merits.” Marathon Asset Mgmt. LLC v. Otto, 977 So. 2d 1241, 1246 (¶14) (Miss. Ct. App. 2008).

¶13. The supreme court has noted that “parties whose rights are to be affected are entitled to be heard . . . . Furthermore, they must be notified in a manner and at a time that is meaningful.” Aldridge v. Aldridge, 527 So. 2d 96, 98 (Miss. 1988) (internal citations omitted). Jessie was not properly noticed or added as a respondent until a year after the matter was initiated. Once the Quinns filed their second amended petition for a judicial sale, naming Jessie as a respondent, the sale of the subject property should have been vacated and renoticed for a proper sale, involving all parties if Jessie’s in-kind partition did not materialize. Nevertheless, the court presumed that since Jessie and Arma were husband and wife, Jessie had knowledge of the actions regardless of his omission as a respondent in the matter. We find that presumption was in error.

Several lessons in this:

  • The COA has made clear in many cases, including this one, that the mere fact that you know about litigation does not confer jurisdiction over you.
  • When Jessie finally awoke and decided to participate, I guess he should have been more forceful in asserting his objection to the sale.
  • I would have affirmed, because after the amended complaint was filed Jessie was given the opportunity to object and even to testify in opposition to the sale at the confirmation hearing, but he declined. As a trial judge, one often wonders how far we have to go to accommodate people who simply will not protect themselves even when they have the means to do so.
  • When you have litigation involving “heir property,” jump through every hoop and go to extra trouble to discover and get process on everyone who has or claims to have an interest in the property. That extra attention may avoid big headaches later.

Parties in Adoptions

August 6, 2013 § Leave a comment

It’s obvious that the natural parents and adopting parents are necessary parties in adoption cases. But when you read MCA 93-17-5, you will see that the scope of persons to be included is considerably greater.

The statute requires that the following persons be joined by process or by consent to the adoption:

  • the parent or parents, even though one or both are under twenty-one; or
  • if both parents are dead, then any two adult kin of the child within the third degree; or
  • if both parents are dead and an adult kin of the child has “possession” of the child, then that party must be joined or must consent; or
  • the guardian ad litem of an abandoned child, where it is alleged that the parents’ whereabouts are unknown after diligent search and inquiry; or

The statute goes on to say that “In addition,” the following shall be made parties:

  • person(s) having physical custody of the child, except foster parents via DHS.
  • any person who had been awarded custody of the child by a Mississippi court with jurisdiction;
  • the “agent of the county [DHS} that has placed the child” in foster care by agreement or court order;

A consent “may also be executed” and filed by an authorized representative of a “home to whose care a child has been delivered.”

Subsection (2) includes the important requirement that: “The child shall join in the petition by its next friend.”

If the child is more than 14 years old, subsection (4) requires that the child execute a sworn or acknowledged consent, or be joined by service of process.

If the child was born to parents who were not married to each other, the father has no right to object unless he has demonstrated within 30 days after the birth of the child “a full commitment to the responsibilities of parenthood.” Note that the language of the statute only says that the unwed, irresponsible parent has no right to object; it does not say that he is not entitled to notice, although it can be argued that notice is superfluous if he has no standing to object. Determination of the father’s rights may be made in a separate proceeding, pursuant to MCA 93-17-6.

In the recent case of Little v. Norman and DHS, decided July 23, 2013, the COA noted that a grandparent with custody who is required to be joined in the adoption may, nonetheless, have no right to stop it. The sourt stated in ¶16 that: “Mississippi Code Annotated section 93-17-5(1)(ii) (Rev. 2004) provides that certain people ‘shall be made parties to [an adoption] proceeding[,]’ including ‘[a]ny person to whom custody of such child may have been awarded by a court of competent jurisdiction of the State of Mississippi.’ Even so, the Mississippi Supreme Court has held that although a grandfather who was the legal custodian of a child was a necessary party to an adoption, his status did not provide him with ‘the prerogative of consenting to the adoption and by corollary, withholding consent and thereby thwarting the adoption.’” Martin v. Putnam, 427 So. 2d 1373, 1376 (Miss. 1983). And, by way of further explanation, continued in footnote 6 on the same page: “What purpose did the legislature intend by designating parties to an adoption proceeding whose consent was not necessary to its validity? We are of the opinion the legislature’s intention was to bring into the suit those persons most likely to be familiar with the background and needs of the person sought to be adopted so they could give testimony concerning his or her best interest. . . . This of course, accords with our many decisions concerning children wherein we have stated that the best interest of the child is paramount. The designated parties thus become witnesses concerning the facts known to them to aid the trial court in its solemn determination of whether to grant or deny an adoption. We think the testimony from those who are close kin to a child is most significant because, in theory, they love the child best and would give truthful testimony as to the child’s best and enduring interest.” Id., at 1376-77.

I stress with lawyers that it’s better to have to take an extra step in an adoption to get it right than to have to face a motion  to set it aside at a later date. Lack of jurisdiction over all the necessary parties is one of those flaws that can be fatal.


January 23, 2012 § 3 Comments

Who gets to participate in a grandparent visitation case?

MCA § 93-16-5 states:

“All persons required to be made parties in child custody proceedings or proceedings for the termination of parental rights shall be made parties to any proceeding in which a grandparent of a minor child or children seeks to obtain visitation rights with such minor child or children … ” [Emphasis added]

MCA § 93-15-107(1), dealing with termination of parental rights, states:

“In an action to terminate parental rights, the mother of the child, the legal father of the child, and the putative father of the child, when known, shall be parties defendant.”

MCA § 93-11-65 allows for a custody action against any resident or non-resident, whether or not having actual custody. MCA § 93-27-205(1) provides that in child custody proceedings between states, any person having actual custody must be joined.

From the statutes, then, the plaintiff is required to join the natural mother, the legal father, and the putative father, when known, and any person having actual custody. The requirement of joinder is not subject to the trial court’s discretion, but rather is mandated through the statute’s use of the word shall. Since the statute is in derogation of common law, it must be strictly construed.

Don’t make the mistake of filing your suit against the custodial parent alone. You might just make a wasted trip to the court house.

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