Brown v. Tate
95 So. 3d 745
| Miss. Ct. App. | 2012Background
- Ponta filed May 2005 a partition by sale action in Lauderdale County Chancery Court against multiple defendants owning interests in the subject property.
- Rule 81 summons were issued for most defendants and notice by publication; only A.P. Brown appeared at the July 20, 2005 hearing; no merits were addressed and no continuance order was entered.
- Brenda Gordon was not timely issued a Rule 81 summons; in August 2010 she was personally served and a hearing notice for November 22, 2010 was issued.
- At the November 22, 2010 hearing, Brenda Gordon appeared; the hearing was continued to January 31, 2011, but no other defendants appeared and no further service was made for them.
- In March 2011 the chancery court ordered partition by sale; a post-hearing motion to reconsider was denied; Tate later purchased interests of some defendants and the property at auction.
- Mississippi appellate court held the judgment against the Defendants was in error for lack of a new Rule 81 summons and proper notice; case remanded for proceedings consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether new Rule 81 summons were required before the November 2010 hearing | Tate argues original summons sufficed due to continued proceedings after continuances. | Defendants contend no new summons was issued after July 2005 and no continuance or order covered the November 2010 hearing. | New Rule 81 summons required; lack of notice invalidates proceedings against remaining defendants. |
| Whether the January 2011 judgment could stand without proper notice | Proceedings followed Rule 81 procedures; default-like posture supported. | Due process requirements unmet due to inadequate notice and lack of summons for the later hearing. | Judgment by sale reversed for lack of proper Rule 81 notice; proceedings remanded. |
| Whether notice by letter sufficed under Rule 81(d)(5) | Letter to A.P. Brown and others provided notice of hearing. | Notice by letter fails to satisfy Rule 81(d)(5) where a formal summons is required. | Letter notice inadequate; formal summons required for subsequent proceedings. |
Key Cases Cited
- Saddler v. Saddler, 556 So.2d 344 (Miss.1990) (default judgment improper where Rule 81 governs process; no confession.)
- Vincent v. Griffin, 872 So.2d 676 (Miss.2004) (notice of continued hearing requires more than mail; due process requires new summons unless continued by order.)
- Capíes v. Capíes, 686 So.2d 1071 (Miss.1996) (proper procedure under Rule 81 would have been to serve respondent with a new summons.)
- Serton v. Serton, 819 So.2d 15 (Miss.Ct.App.2002) (service by mail without proper summons does not enable court action.)
- Bailey v. Fischer, 946 So.2d 404 (Miss.Ct.App.2006) (Rule 81 notice requirements; new summons required if no definite hearing date set.)