The Better Chancery Practice Blog

By: Chancellor Troy Odom (Rankin County Chancery Court)

“The party who brings suit confers by that act all necessary personal jurisdiction as to himself.” Miss. Chancery Practice § 2.13 at 37 (2017 ed.). That’s axiomatic, right? In a circuit or federal court practice, a defendant who files a counterclaim does not serve a Rule 4 summons on the plaintiff—the plaintiff already subjected themselves to the personal jurisdiction of the court through their initial filing.

That rule does not apply to chancery court litigation initiated through a Rule 81 summons. For example: You are a respondent in a custody modification proceeding brought by your ex-spouse. You file a counter-petition for a downward modification of child support. For personal jurisdiction to attach, you must serve your ex with a copy of the counter-petition and a Rule 81 summons. Rely to your own peril on simply filing the answer and counter-petition on MEC or emailing a copy of the counter-petition to counsel opposite.

The issue of whether a respondent must serve the petitioner with process to obtain personal jurisdiction arose in Pearson v. Browning, 106 So. 3d 845 (Miss. Ct. App. 2012). The parties to this proceeding were previously divorced. Browning, the wife, had been awarded custody of the subject child through the divorce judgment. Years later, Pearson, the non-custodial parent, filed a petition to modify custody and for other relief. Browning filed a counter-petition, seeking to have Pearson held in contempt for non-payment of a retirement benefit ordered through the divorce judgment. Browning never served Pearson with a Rule 81 summons on her counter-petition.

When Pearson’s initial petition was dismissed, there remained for adjudication only Browning’s counter-petition for contempt. The trial for Browning’s counter-petition was set for November 3, 2010, by court administrator’s notice. On the day of trial, Pearson, unrepresented by legal counsel, “inartfully” argued lack of adequate notice and requested a continuance, which was denied. The court proceeded to trial and eventually found Pearson in contempt and ordered him to pay Browning $53,528.22. Pearson appealed, arguing lack of personal jurisdiction since Browning failed to serve him with a Rule 81 summons on the counter-petition.

As an aside, the court of appeals made observations at the beginning of its analysis that serve as important reminders to chancery court practitioners: “In a matter that requires a Rule 81 summons and does not use a Rule 81 summons, the resulting judgment is void because it is made without jurisdiction over the parties.” Pearson, 106 So. 3d at 848. The court also stated that “for no additional Rule 81 summons to be required, the order that continues the trial date must be signed on or before the original trial date.” Id. (emphasis added).

Ultimately, the court held that the trial court lost jurisdiction over Pearson because he was not served with a Rule 81 summons on the counter-petition. Interestingly, the court of appeals stated that before Pearson’s initial claims were dismissed, he “simply was not entitled to a Rule 81 summons because he was the plaintiff.” Id. at 848. “Because Pearson was the plaintiff prior [to his claims being dismissed] he cannot properly raise a jurisdictional issue before that date.” Id. at 848. By being the plaintiff, Pearson consented to personal jurisdiction. Id. These statements by the appellate court would indicate that a counter-petition of the type enumerated in Rule 81(d)(1) or (2) does not require a Rule 81 summons so long as the initial claim remains.

[Judge’s note: This case seemed to hang on the fact that the initial petition was dismissed prior to trying the issues raised in the counter-petition. The cases discussed below do not make this distinction.]

Three years later, the court of appeals in Curry v. Frazier, 119 So. 3d 362 (Miss. Ct. App. 2013) tweaked its tune. The parties to this case were subject to a judgment of paternity, child support, and visitation. Eleven years after entry of that order, the non-custodial father, Curry, filed a petition asking solely for the child’s name change. The custodial mother, Frazier, counter-petitioned for an upward modification of child support. No Rule 81 summons was ever issued on the counter-petition. After the trial court entered a judgment modifying child support, Curry appealed.

The court of appeals stated, simply:

A Rule 81 summons needed to be issued for the modification issue. No Rule 81 summons was ever issued for the modification of child support issue. Without the issuance of a proper Rule 81 summons, the court had no jurisdiction to hear the case.

Curry, 119 So. 3d at 365.

Thus, a Rule 81 summons was necessary for the counter-petition. It is not clear whether the initial petition to change name was pending at the time of trial.

[Judge’s note: Pearson is not mentioned in Curry. However, the two cases are arguably consistent. Presumably, Curry’s petition to change the name was fully decided at an earlier hearing, which would have the same effect as the dismissal of Pearson’s initial claims.]

Similarly, in Estate of Labasse, 242 So. 3d 167 (Miss. Ct. App. 2017), one of the contestants to the decedent’s last will and testament filed a petition for contempt against the executrix of the estate. A Rule 81 summons was issued for the executrix and mailed to the attorney for the estate. The court of appeals held that the petition for contempt, filed within an ongoing estate proceeding, was subject to the service requirements of Rule 81. No personal service meant no personal jurisdiction.

[Judge’s note: It is becoming clear that the Court of Appeals considers any Rule 81 claim raised in ongoing litigation a distinct proceeding, necessitating separate service of process.]

In Hilton v. Harvey, 284 So. 3d 850 (Miss. Ct. App. 2019), the court of appeals held that the 120-day time limitation on service of process under Rule 4(h) does not apply to matters falling under a Rule 81 summons. In doing so, the appellate court assumed the necessity of a Rule 81 summons for a counter-petition. No analysis was afforded the issue of whether a summons was necessary in the first place.

Now, with the recent case of Jones v. Curtis, No. 2023-CA-987-COA (Miss. Ct. App. September 17, 2024), there should be no question that service of a Rule 81 summons is necessary for a counter-petition—regardless of whether the initial petitioner’s claims survive.

Jones, the mother of the child, filed a petition to modify the joint physical custody arrangement. Curtis, the child’s father, filed an answer and counter-petition, also requesting modification of custody. Following trial, the court awarded physical custody to the father.

Jones appealed, arguing the chancellor lacked jurisdiction to hear either party’s petition due to insufficient service of process. (¶14). The appellate court’s analysis follows:

¶ 20 . . . While Rule 81(d)(4) states that an answer is not required in a modification-of-custody action, Curtis’s filing also set forth his counter-complaint for modification, which does require a Rule 81 summons. M.R.C.P. 81(d)(5); see Hilton v. Harvey, 284 So. 3d 850, 854-55 (¶¶15-16) (Miss. Ct. App. 2019); Pearson, 106 So. 3d at 849 (¶19). It is undisputed that Curtis failed to provide Jones with Rule 81 process. This Court has held that “in Rule 81 matters, a Rule 81 summons must be issued; otherwise, service is defective.” Pearson, 106 So. 3d at 850 (¶27). When service is defective, “[any] resulting judgment is void because it is made without jurisdiction over the parties.” Id. at 848 (¶9).

                        *          *          *

¶22. . . . Curtis failed to provide Jones with Rule 81 service upon the filing of his counter-complaint for modification. Vincent, 872 So. 2d at 678 (¶8); Pearson, 106 So. 3d at 850 (¶27). As a result, “[t]he only avenue where the chancery court still would have jurisdiction over [Jones at the time of the hearing] is if [she] waived the lack of a Rule 81 summons by appearing.” Pearson, 106 So. 3d 851 (¶28).

(emphasis added).

Judge’s Analysis

            The norm for most chancery court practitioners, at least in Rankin County, is to avoid raising personal jurisdictional issues unless necessary to secure a continuance or stave off a surprise counter-petition. There is honor in proceeding to trial as previously agreed without the expense or hassle of service of process. As a result, attorneys skip jurisdictional squabbles by simply trying the case. This makes life easier—and justice speedier—for all concerned.

            But it is difficult at times to describe to an attorney (when the issue is raised) why they must serve a Rule 81 summons on their counter-petition. Why? they ask: hasn’t personal jurisdiction already attached—the petitioner has already subjected themselves to the personal jurisdiction of the court through their respective filing.

            I guess the best way to describe it is that any cause of action listed in Rule 81(d)(1) or (2) cannot be a “counterclaim.” Instead, those causes of action are their own separate and distinct “petitions,” no matter how related they are to the claims made in the initiating pleading. Because those causes of action are special, a Rule 81 summons must be issued served. It does not matter that there is ongoing litigation.

            However, does that mean that Rule 13(a)—compulsory counterclaims—and its language on res judicata and collateral estoppel does not apply? Or, does Rule 13(a) still apply, but Rule 5 does not.

            On January 10, 2020, the Supreme Court Advisory Committee on Rules filed a Motion to Amend Rule 81 (Motion No. 2020-91), proposing many changes. One of those proposed changes would allow for Rule 5 service on counter-petitions. The motion mentions Pearson and Hilton as the motivating factor for the proposed change.

            The Mississippi Supreme Court sought comment on the motion. I cannot find where any comments were received by the Court. I believe the motion is still pending.