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.
¶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.
March 19, 2019 § Leave a comment
It should go without saying that the chancellor may not proceed unless and until she has personal jurisdiction over the defendant or respondent. If process is defective, there is no personal jurisdiction, and any action the chancellor takes is of no effect.
That principle came painfully into play when Nancy Edwards sued her ex, Johnny Edwards, for contempt and modification. After hearing the matter, the chancellor found Johnny in contempt, ordered him to do certain acts to purge himself of contempt, and directed a review hearing. A R81 summons was issued directing him to appear at a stated date and time “in the courtroom of the Oktibbeha County Courthouse at Columbus, Mississippi.” When the matter came before the judge and Johnny did not appear, the court found him in contempt and granted other relief. Johnny appealed.
The COA reversed and remanded in Edwards v. Edwards, decided February 12, 2019. Chief Judge Barnes wrote for the unanimous court sitting en banc:
¶9. The first assignment of error raised on appeal is that the summons was defective. As noted, the summons directed Johnny to appear on May 15, 2017, at the “Oktibbeha County Courthouse at Columbus, Mississippi.” (Emphasis added). The Oktibbeha County Courthouse is in Starkville, Mississippi, not Columbus. Columbus is located in Lowndes County. “[A] court may take judicial notice that a city is in a particular county.” Russell v. State, 126 So. 3d 145, 148 (¶8) (Miss. Ct. App. 2013). The record also indicates that the chancery court conducted hearings in various counties throughout its district, including Oktibbeha, Lowndes, and Chickasaw.
¶10. Rule 81 mandates that in certain actions, such as contempt, “special notice be served on a respondent for a hearing with a date, time[,] and place specified.” Bailey v. Fischer, 946 So. 2d 404, 406 (¶7) (Miss. Ct. App. 2006); see also Sanghi [v. Sanghi], 759 So. 2d  at 1256 (¶28) [(Miss. App. 2000)] (The only required information for a summons under Rule 81 “is that a party is to be told the time and place for the hearing and that no answer is needed.”). In Caples v. Caples, 686 So. 2d 1071, 1074 (Miss. 1996), the Mississippi Supreme Court found notice issued to a respondent was defective and “inconsistent with Rule 81,” even though the respondent made an initial appearance, because the notice did not contain the time and place of the hearing and required a written response to the complaint.
¶11. In this instance, the Rule 81 summons failed to specify the correct place for the hearing. [Fn omitted] Reviewing the notice, Johnny would not have known whether to appear at the Oktibbeha County Courthouse in Starkville or the Lowndes County Courthouse in Columbus. Therefore, finding the notice was defective under Rule 81, we reverse the judgment and remand for further proceedings.
An unmentioned corollary is that close is not good enough when it comes to process. The process on its face must comply in every particular with R81 (or R4 if that governs the action in which you are proceeding), and “substantial compliance” is not adequate. The only cure for defective process is voluntary appearance of and participation by the summoned party without objection to personal jurisdiction.
January 2, 2014 § Leave a comment
Helping a client collect past-due child support can be devilishly difficult, particularly when the obligated parent disappears, or tries to.
If you will look at MCA 93-11-65(5) and (7), you may find some help.
MCA 93-11-65(5) mirrors UCCR 8.06 in its requirement that both parties in cases involving minor children must keep each other and the court informed of the party’s residence address and telephone number. It goes further, however, for child support cases, and requires that both parties notify each other and the court and the state child support registry of the party’s ” … location and identity, including social security number, residdential and mailing addresses, telephone numbers, photograph, driver’s license number, and name, address and telephone number of the party’s employer.” The information is required upon entry of an order or within five days of a change of address. [Note: Although the statute specifically refers to change of address, it would seem that a court order could direct updating on change of any particular].
Applying the foregoing, you will do your child support client a great service by making sure that the above language is in every child support order you submit to the court, and that you make sure that the appropriate information on both parties is filed as required, including with the state registry, as directed in the statute.
Why go to that trouble?
Well, that’s where MCA 93-11-65(7) comes in. It provides that “In any subsequent child support enforcement action between the parties, upon sufficient showing that diligent effort has been made to ascertain the location of a party, due process requirements for notice and service of process shall be deemed to be met with respect to the party upon delivery of written notice to the most recent residential or employer address filed with the state case registry.”
So, after diligent search and inquiry to locate the slacker, you issue process to his or her last reported residence address or employer, and — Volia! — you have personal jurisdiction under the statute. Note the language “filed with the state case registry.” That’s a key component. You must have seen to it that the info was filed with the state registry.
The case registry is provided for in MCA 43-19-31(l)(ii) [that’s lowercase L], and is to be maintained by DHS.
To be honest, I have yet to see anyone avail themselves of this procedure. If you have had experience with it, I would welcome your comments. It seems to me to be quite advantageous to private parties trying to enforce child support obligations
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.
April 8, 2013 § 2 Comments
The COA’s decision in Richard v. Garma-Fernandez, handed down March 19, 2013, is one every chancery practitioner should read and appreciate for the ramifications of entering an appearance on behalf of a party.
In this case, Emilio Garma-Fernandez (hereinafter EGF) filed suit against 10 defendants, including Richard, based on a commercial contract. The suit alleged claims for accounting, imposition of resulting and constructive trusts, equitable ownership, injunction, breach of contract, tortious interference with contract, anticipatory breach, and other issues giving rise to damages and attorney’s fees.
Richard was not personally served with process, but an attorney, White, notified EGF’s attorney that she was representing him and five other defendants, and, based on that contact, EGF’s lawyer from that point on sent all communication and pleadings to White on behalf of Richard. After that, when Richard attempted to communicate with EGF’s lawyer, the lawyer directed him to stop because he was represented by counsel.
In due course, White filed a pleading styled “Motion, Answers, Defenses and Counterclaims” of certain named defendants, including the name of Richard (“Richards” in the pleading).
EGF’s lawyer served discovery requests on Richard through White, and White did not respond. The chancellor ruled that any matters not produced in discovery would be inadmissible at trial, and that the matters request to be admitted were taken as admitted. He further dismissed Richard’s counterclaim with prejudice and awarded attorney’s fees to EGF.
EGF then filed a motion for summary judgment against Richard. White asked for more time to respond, claiming she could not locate Richard, that his file was in storage because she had moved her office, and that since Richard was located in Virginia he needed additional time. Nearly two months later the court granted summary judgment. When EGF began collection proceedings in Virginia, Richard filed a limited appearance to contest jurisdiction and for relief from judgment per MRCP 60, claiming that White did not represent him, and among other items of evidence offered White’s affidavit that she had listed him in error as one of the parties she did represent in the action. The chancellor ruled that Richard had entered his appearance, submitting himself to the jurisdiction of the court via attorney White, and denied him relief. He appealed.
The COA affirmed. I quote at length:
¶19. Richard filed a motion for relief from judgment under Mississippi Rule of Civil Procedure 60. Rule 60(b)(4) provides: “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reason[s]: . . . (4) the judgment is void.” A judgment is void if the rendering court lacked personal or subject-matter jurisdiction or acted in a manner inconsistent with due process. Overbey v. Murray, 569 So. 2d 303, 306 (Miss. 1990) (citations omitted).
¶20. The question presented is whether Garma-Fernandez’s judgment was void because the chancery court lacked personal jurisdiction over Richard. For a judgment to be valid, the court must have personal jurisdiction over the parties to the action. James v. McMullen, 733 So. 2d 358, 359 (¶3) (Miss. Ct. App. 1999).
¶21. A court obtains personal jurisdiction over a defendant in one of two ways. Personal jurisdiction is established when a defendant is properly served the summons and complaint under Rule 4 of the Mississippi Rules of Civil Procedure. Personal jurisdiction is also established when a defendant voluntarily enters an appearance. Isom v. Jernigan, 840 So. 2d 104, 107 (¶9) (Miss. 2003) (citations omitted). “One waives process and service . . . upon making a general appearance.” Id.
¶22. Richard was not served with Rule 4 process. However, Richard entered an appearance in this case when White filed a responsive pleading on his behalf. When White filed the responsive pleading on September 24, 2009, Richard voluntarily entered an appearance in the Chancery Court of Oktibbeha County and was subjected to the jurisdiction of the court. The fact that Richard was not served with process under Rule 4 no longer mattered.
¶23. Despite this voluntary appearance through attorney White, Richard could have contested both personal jurisdiction and insufficiency of service of process in the responsive pleading. See M.R.C.P. 12(b)(2), (5). He did not. The result was that the responsive pleading, without the Rule 12(b) defense asserted, waived his right to contest personal jurisdiction. See M.R.C.P. 12(h)(1). “[T]he right to contest the court’s jurisdiction based on some perceived problem with service may yet be lost after making an appearance in the case if the issues related to jurisdiction are not raised at the first opportunity.” Schustz v. Buccaneer, Inc., 850 So. 2d 209, 213 (¶15) (Miss. Ct. App. 2003). “Thus, a defendant appearing and filing an answer or otherwise proceeding to defend the case on the merits in some way—such as participating in hearings or discovery—may not subsequently attempt to assert jurisdictional questions based on claims of defects in service of process.” Id.
¶24. Our inquiry does not end here. Richard argues that a Mississippi attorney cannot give a Mississippi court personal jurisdiction over a nonresident unless that attorney has been hired by the nonresident. Richard’s brief cites, but does not discuss, Rains v. Gardner, 719 So. 2d 768 (Miss. Ct. App. 1998).
¶25. In Rains, this Court acknowledged that an individual can waive process, and an authorized attorney may enter an appearance on his behalf. Id. at 770 (¶7). When this issue is raised, the party that claims an appearance has been made bears the burden of proof. Id.
¶26. One defendant, Ginger Gardner, was represented by an attorney. Id. at 769 (¶5). Gardner’s attorney appeared on her behalf but argued that the other defendant, Tina Clark, whom the attorney did not represent, should also be dismissed from the action. Id. When the court asked the attorney whether he represented both defendants, the attorney definitively stated he only represented one (Gardner). Id. Nevertheless, the attorney renewed his argument that both defendants (Gardner and Clark) should be dismissed. Id. The plaintiff, Hazel Rains, argued that Gardner’s attorney’s actions constituted a voluntary appearance on behalf of Clark. Id. The trial court rejected that argument, and Rains appealed. Id. at (¶¶5-6).
¶27. This Court found that because there was not “even a hint of evidence” that the attorney actually represented Clark, Rains’s argument had no merit. Id. at 770 (¶7). This Court also noted that even if the attorney had made extensive arguments on the unrepresented defendant’s behalf, the attorney could not have entered a voluntary appearance on behalf of the individual if he acted without authority. Id.
¶28. This case is not factually similar to Rains. Here, White filed pleadings on behalf of Richard, and other defendants. The question the chancellor had to decide was whether Richard consented to or authorized White’s representation.
¶29. The chancellor determined that there was sufficient evidence to conclude that Richard consented to and authorized White’s representation. White filed the responsive pleading that specifically named Richard as a defendant [footnote omitted] whom she represented. Garma-Fernandez’s attorney served White with discovery for Richard. There was correspondence from Garma-Fernandez’s attorney to White that discussed her representation of Richard. The court entered an order compelling Richard to respond to discovery, with White acting as his attorney.
¶30. Also, the October 15, 2010 “Joint Motion for Extension of Time to Respond to Motion for Summary Judgment and Motion for Continuance” was filed only on Richard’s behalf. White represented herself as “his counsel of record.” White stated to the court that she had not been able to notify Richard of the motion for summary judgment, and that, because Richard was a Virginia resident, sixteen days was not enough time to make arrangements for him to appear at the hearing. Also, in this motion, White refers to Richard as “her client.”
¶31. We recognize that Richard’s affidavit attached to the limited-appearance motion claims that he never authorized White to act on his behalf. However, an assertion in Richard’s affidavit was contradicted by the evidence. White’s affidavit states that she was not and never had been Richard’s attorney. White’s affidavit, however, was contradicted by her previous assertions to the court. We agree with the chancellor that the credibility of both affidavits was undermined.
¶32. We find the evidence in the record demonstrates that White did, in fact, enter an appearance for Richard, and that she was his authorized representative in this action. Therefore, we find no merit to this issue and find no error in the chancellor’s judgment that found the court had personal jurisdiction over Richard. The chancery court’s personal jurisdiction over Richard was not based on Richard’s awareness of the lawsuit.
¶33. Next, Richard claims that knowledge of litigation is not sufficient to confer jurisdiction. This Court has stated “even actual knowledge of a suit does not excuse proper service of process.” Blakeney v. Warren Cnty., 973 So. 2d 1037, 1040 (¶13) (Miss. Ct. App. 2008) (quoting Mansour v. Charmax Indus., 680 So. 2d 852, 855 (Miss. 1996)).
¶34. As discussed above, the chancery court’s personal jurisdiction over Richard was not based on Richard’s awareness of the lawsuit. The chancellor correctly determined that the court gained personal jurisdiction over Richard through his general appearance. Therefore, we find no merit to this issue.
A few quick points:
- If you’re going to enter a special appearance to contest personal jurisdiction, make sure it’s the very first thing you file, even before an “Entry of Appearance” or a motion for more time. Any filing other than a pleading styled “Special Appearance to Contest Jurisdiction” can be construed as a personal, general appearance, even a simple motion for more time or that “Entry of Appearance.”
- When you file anything in a court file on behalf of a party, you are bound to represent that party, and the party is bound by your pleadings. Make sure you act within the authorized scope of your representation.
- I have seen cases where a lawyer signs off on an agreed order to reset a case in the hope that the party will hire the lawyer, but the fee never materialized. It’s no fun watching the lawyer trying to deny responsibility in the case while the client (innocently or not) claims that he/she is relying on that lawyer. If you inject your name into a case, you are in it until the judge lets you out.
- Losing contact with a client can have miserable results for the client. Clients who blame you for their misery can make your life mi$erable.
February 15, 2011 § Leave a comment
Before a Mississippi Chancery Court can consider whether to grant a divorce, it must make four fundamental findings:
- That the parties were married to each other (subject matter jurisdiction);
- That the parties are properly before the court by process and notice (personal jurisdiction);
- That the action is filed in the appropriate county (venue, also called “venue jurisdiction”); and
- That at least one of the parties meets the statutory residency requirement, and that residence in Mississippi was not obtained in order to get a divorce.
These are commonly referred to as the “jurisdictional facts,” and you can not even get to address whether there are grounds, or equitable distribution, or any other divorce issues unless the jurisdictional facts are established in the record.
If you are in doubt about the proper venue of your action, consulting MCA § 93-5-11 will give you the answer.
All of the above may appear elementary to you, but it is astonishing to me how many contested divorce cases I see presented where neither attorney establishes even one or more of the jurisdictional facts, and there are many where none of them are mentioned. In some cases, I have invoked MRE 614(b) to get the information myself into the record; after all, if I lack subject matter jurisdiction or venue is improper any action I take is void, and if I lack personal jurisdiction any action is voidable.
Remember that your pleadings are not evidence. Just because you pled it does not put it into the record. If you don’t establish jurisdiction on the record so that the judge’s finding of jurisdiction is supported by evidence, you are leaving your client’s judgment vulnerable to attack by the disgruntled other party.
February 9, 2011 § 4 Comments
Kristina and her husband Eric lived in Long Beach, Mississippi. Kristina commuted to work in Louisiana, where she began having a sexual relationship with William, a co-worker. All physical contact between Kristina and William occurred exclusively in Louisiana.
When they were apart, Kristina and William pursued their mutual infatuation via e-mail, cell phone and text messages. Many of the electronic communications were sent and received by Kristina while she was physically located in Mississippi.
Eric discovered the relationship and asked William to leave his wife alone. William persisted. Eventually Eric and Kristina were divorced and Kristina moved to Louisiana and married William.
Eric sued William in the County Court of Harrison County, Mississippi, for alienation of affection, alleging that his damages occurred in Mississippi, and that Kristina had sent and received communications while she was in the state.
William moved unsuccessfully to dismiss for lack of personal jurisdiction and took an interlocutory appeal to the supreme court.
In the case of Knight v. Woodfield, decided January 6, 2011, the Mississippi Supreme Court found that the phone calls, text messages and e-mails were sufficient “minimum contacts” with Mississippi to confer personal jurisdiction. The court cited International Shoe Company v. Washington, 326 US 310, 316 (1945), which states that “A defendant has ‘minimum contacts’ with a state if the defendant has purposefully directed his activities at residents of the forum and the litigation results from alleged injuries that arise out of or relate to those activties.”
The court also found that allowing the suit to go forward in Mississippi would not offend traditional notions of fair play and substantial justice because Mississippi has an interest in providing a forum for its residents who are injured by nonresidents and for other reasons.
The opinion, written by Justice Carlson, includes this language about the tort of alienation of affection:
Mississippi’s interest is enhanced because Louisiana does not recognize the tort of alienations, making Mississippi the only viable forum for Woodfield’s claims … the purpose of the tort of alienation of affections is the ‘protection of the love, society, companionship, and comfort that form the foundation of marriage …’ [citations omitted] Permitting claims for alienation of affections protects the marriage relationship and provides a remedy to those who have suffered loss of consortium as a result of the conduct of others …”
Justice Waller, joined by Chandler, dissented, disagreeing with the majority that the electronic communications constituted minimum contacts with Mississippi.
We’ve talked here before about the viability of alienation of affection as a cause of action. From the language in this case, it appears that alienation is as viable as ever.