Mississippi Civil Practice – Abbott – Spring 2012
I. Introduction
A. Intro – Structure of the Court System
v (1) Justice Court – Created by § 171 of Miss. Const. of 1890
§ Note: important to note that some courts are created by the legislature and some created by the Constitution
Ø Previously called ‘Justice of the Peace’ or ‘JP’ court.
Ø Plagued by inadequate qualification requirements (up until 1975 only had to be +25 and a resident of the jurisdiction)
§ Now [after const. amend.] must have high school diploma (or GED)
§ This constitutional amendment also allowed the legislature to modify the jurisdictional amount
Ø Current jurisdictional amount in civil courts is $3500 and down (see § 9-11-9)
§ Court also handles misdemeanors on the criminal side
Ø Appeals are trial de novo you get 30 days (contrary to what the statute says — the rule controls)
v (2) County Court – Created by legislature in § 9-9-21 under the authority of § 172 of Miss. Const.
§ Note: may or may not exist in a given county (counties must decide they want the court and they must also meet the requisite requirements of population, etc.)
Ø 19 Counties have county courts. Counties can petition the legislature for creation of a county court
Ø Civil jurisdiction is $200,000 and down (all the way concurrent with justice court to $1) (See 9-9-21)
§ Also has concurrent jurisdiction with circuit court and chancery court in matters of equity (although it is rare it will deal with something ordinarily in chancery)
Ø Abbot Rule of Thumb: If you bring something to the county court that is really a chancery matter typically the county court judge will probably express disinterest in you clogging up his docket (may be better just to go on to chancery b/c a disgruntled judge makes for an unhappy claimant)
Ø Sits with a jury
Ø Same requirements for judge qualification as circuit court judges
v Bifurcation (each county/judicial district will have two of these [multiple districts in county possible?])
Ø (3) Circuit Court (at law — generally cases seeking money damages)
§ Handles all criminal matters and [?]
§ Constitutionally created by § 156
§ Court of all encompassing plenary jurisdiction: has jurisdiction of all matters not vested by the Constitution in some other court (only other constitutional ones are chancery and justice)
· So you can assume your case is probably in circuit court unless §§ 159, 171 carve out of it
§ Right to jury trials in this court
§ Elections
· 4 year terms
· 22 circuit court districts
· For multiple counties in one district, there is no actual “district” but the judge will move around and sit for each county as the Circuit Court of a specific county (they “ride the circuit”)
· Some counties are split into multiple districts and they are treated for legal purposes as two different counties
Ø (4) Chancery Court (in equity)
§ Judges called chancellors
· Must be 26 years old, practice for 5+ years, and live in district for 5+ years
§ Limited Subject Matter Jurisdiction:
· All matters in (1) equity, (2) divorce and alimony, (3) testamentary and administration of estates, (4) minor’s business, (5) cases of non-compos mentis, & (6) all cases of which the said court had jurisdiction under the laws in force when this Constitution is put in operation (§ 159). Plus title matters [and some others] (§ 160)
§ Constitutionally created by § 159 (memorize the list and see also § 160)
§ There is no jury (this is why this bifurcation can become so contentious) with a small exception for will contests
· Also, chancellor may empanel an advisory jury (its decision isn’t binding) although this almost never happens
§ Elections
· 4 years terms
· 20 chancery court districts
· For multiple counties in one district, there is no actual “district” but the judge will move around and sit for each county as the Chancery Court of a specific county
Ø Generally Applicable Things
§ No jurisdictional amount in circuit or chancery
§ Formal Court Terms:
· We have formal court terms for all of the courts in the state for when they will be in session
¨ Circuit courts may also have ‘special’ terms (but this is a big expense b/c of the task of empaneling a jury)
¨ Chancery also has formal court terms but not a big deal b/c having a ‘special’ session is easy w/o the need for a jury
· Vacation: Period b/t formal court terms is known as ‘vacation’
¨ Not much significance in circuit (merely means not in session)
¨ For chancery the vacation time is very important b/c this is when judges handle vacation matters (including ex parte matters and other things where there is only one party)
v (5) Supreme Court – Created by the Constitution
Ø 9 justices elected for 8 year terms (all other judges elected for 4 year terms)
§ Must be 30 years or older and serve a number of years [as a resident or as an attorney?]
Ø Mystery: generally argue before a panel of 3 justices but all 9 sign off on the opinion released
Ø Claimed to be overworked and asked for help – Thus came the Court of Appeals
Ø Appeal Procedure
§ MSSC gets all cases appealed and decides which it wants to send to COA
· For example all workers comp go to COA (and lately many domestic matters go also)
v (6) Court of Appeals – Legislature created in 1995 under authority of § 172
Ø There are 10 judges elected for 8 year terms (2 are elected from each of the original 5 congressional districts, although we only have 4 districts now)
§ Note: Hierarchically, situated under the Supreme Court
Ø All appeals go to the Supreme Court and it chooses which cases to send to the Court of Appeals (terminology: case was deflected to the Court of Appeals)
§ If disgruntled you can seek writ of certiorari from the Supreme Court, which can be granted by [vote of] 4 justices
§ All their opinions are published and law of the land so long as not conflicting with MSSC (although originally were not published opinions)
v Misc. Court Structure Notes
Ø Administrative Office of Court
§ Created along with the creation of the COA
§ It monitors what is going on with the judges of the state and keeps track of what’s going on
§ Conducts studies and makes recommendations for MSSC to make rule changes, etc.
§ See also AOC Form 1 when you file a lawsuit
Ø Appeals Process
§ From Justice Court
¨ Note: W/o ability to appeal this court might frequently be unconstitutional (sometimes crazy outcomes)
· Process/Order
¨ (a) If there is a county court it must be taken to county court
Ø From lower courts you have 30 days in which to appeal (by URCCC 5.04, but contrary to statute)
¨ (b) If there is not a county court you go to the circuit court
Ø Ignore statute that says you can get a writ to appeal directly to the circuit court (prob never happens)
· On appeal you are entitled to a trial de novo
§ From County Court
· Also covered by URCCC 5.04 giving you 30 days to appeal
· ‘Law’ appeals go to circuit court
¨ This is your typical type of appeal (compose the record, post bond, file briefs)
¨ Circuit judges are busy trying cases and don’t like getting appeals in there courts
¨ Nearly every appeal continues on to MSSC (because basically you have already fulfilled the requirements)
Ø Appeals from county court can end up taking a long time!
Ø Statute says there must be a constitutional question certified by the circuit court judge or MSSC [?]
· ‘Equity’ appeals go to chancery court
B. Intro – Statutory Provisions
v MS Code of 1972 Statutes Overview
§ Recompilation last took effect in 1972
Ø Very important and often a smart place to start researching
Ø See definitional chapter in § 1-3-1 et seq.
§ Remember that both minors and infants are anyone under 21.
§ Remember NCM (non compos mentis)
Ø § 9-11-9
§ Sets justice court amount in controversy
§ Brown v. Vance – Old fee system was unconstitutional so now there is a salary method enacted
v Justice Court Statutory Provisions
Ø Is the Justice Court a court of record?
§ § 9-11-15 – Although there is no provision of a court reporter, justice court is still a court of record w/ power to fine & imprison, hold people in contempt, and to issue subpoenas
· Typically no need for a court reporter b/c your appeals are trial de novo
§ § 9-13-32 – Any attorney in a proceeding where there is no provision for a court reporter may at his discretion have the proceeding recorded (you must pay for it and can only be used for impeachment)
· I.e., you might want to record some criminal testimony for a later civil suit, or you might want to record what the justice court judge is doing [his misconduct?]
§ Note also the Uniform Justice Court Rules
Ø § 11-9-137 – A judgment on the merits in justice court operates as res judicata / claim preclusion
Ø § 11-51-81 – All justice court appeals are to the county court (unless no county court, then circuit court)
Ø § 11-51-85 – Appeals from Justice Court – This 10 day limit is not correct and the statute has never been amended after Uniform Rule 5.04 (setting 30 day limit)
Ø § 11-51-87 – Record in justice court is merely the docket
Ø § 11-51-93 – This statute is misleading (says you have 6 months to remove the case to circuit court on writ of cert.) but don’t use this. Why? There is no record besides the docket entries and even if you record it then it isn’t a record but merely for impeachment
v County Court
Ø § 9-9-21 – Jurisdiction of County Court
§ Jurisdiction concurrent with Circuit and Chancery Courts for $200K and down (and the equity branch is rarely used in County Court)
§ Exclusive County Court Matters: Where there is a County Court then it will have EXCLUSIVE jurisdiction over eminent domain, partitioning, and unlawful entry and detainer (so ejection proceedings also?)
· But if there isn’t a County Court then it goes to the Circuit Court, but they are sitting as a Special court of eminent domain and there are only 10 days to appeal from that (§ 11-27-29)
· So apparently even though it is physically in County Court, you are really sitting as a Special court of eminent domain
Ø § 11-51-79 – Appeals from County Court
§ Correctly amended to say 30 days to appeal, but remember that the rules control
Ø § 9-9-27 – Transfer
§ Circuit Court on criminal side can transfer some criminal matters down to County Court
Ø § 9-9-35 – Transfer for Crowded Docket
§ A Circuit Court can assign cases from its overcrowded docket to the County Court
Ø § 9-9-19 – Term of County Court
v General
Ø § 11-9-3 – Venue
Ø Court of Appeals – Remember it is statutorily created
§ § 9-4-11 – COA may sit in other locations around the state
· But remember that MSSC cannot b/c of the limitations in the Constitution
v Rules of Court Lecture
§ This is somewhat about the pecking order
Ø Organization/Hierarchy of Controlling Rules (Top to Bottom)
§ US Constitution
§ Miss Constitution of 1890
§ Miss. R. Civ. P. took effect in 1982
§ Statutes
Ø How we got the rules
§ For a long time all the rules of practice & procedure were made by the legislature
· This was a failure most of the time (messy and inefficient)
§ MSSC frequently “implored” the legislature to make the changes to no avail
§ Around this time the Federal Rules were taking hold deeply
Ø Newell v. State (landmark decision)
§ Facts: Newell was charged with attempted murder. Jury didn’t get proper instructions from either of the parties and the Judge couldn’t remedy this b/c the statute didn’t allow him to issue jury instructions
§ Rule: MSSC has inherent authority from the Miss. Constitution on separation of powers to promulgate the rules of practice and procedure for the courts of Mississippi
§ Reasoning:
· The statute was unconstitutionally unworkable
· Where the legislature’s law is harmonious with the Court’s rules, then they will cooperate
¨ Perhaps because the legislature controls the budget and financing of MSSC
§ Notes:
· Legislature took this poorly and passed a rule making act that purported to vest the final rule making say-so in the legislature
· They created the “Proposed Mississippi Rules of Civil Procedure” and sent them to MSSC
¨ There was a very heated debate over all this
¨ MSSC drafted numerous amendments and sent it back to the Rule Making Committee
¨ This process got killed a couple times and appeared to be going nowhere
· In 1981 MSSC entered an order adopting the Miss. Rules of Civil Procedure (they adopted the original proposed rules) citing Newell v. State
¨ This happened while the Legislature was out of session (and they were pissed)
¨ The order said that these rules would control over the statutes
· Legislature passed another rule making statute and said the Legislature must review proposed rules
· Ultimately the Supreme Court waited until the session ended and then sent out a letter (p. 35) telling all the judges of the state that the R
cery, so it is hard to know precisely the details that the judge will rule upon (thus may have to prepare it later)
Ø Entry of Judgment: Very important to get the final judgment signed by the judge and file it w/ Clerk
v 7.02 – Return envelope must be enclosed (deals w/ some of the mechanics/logistics)
Ø Has to do with mailing matters to the chancellor instead of actually going and filing them
D. Intro – Uniform Rules of Circuit & County Court
v Uniform Rules of Circuit and County Court (URCCC)
v 1.01 – Abbreviation is URCCC
v 1.04 – Same as to media coverage (there are some rules for photo and media coverage)
v 1.05 – Information that should be on each pleading and motion:
Ø Name, address, office phone of the attorney who will try the case (even if the pleading is prepared by someone other than who will ultimately argue — the arguer must have his info on there)
Ø Add to Rule: Also must put your Mississippi bar number (all pleadings in federal & state)
v 1.05A – Random judges assigned to cases
v 1.06 – Corporation as a plaintiff must be represented by an attorney (no Corp. pro se)
v 1.07 – Signing of bonds by officer of court
Ø No officer of the court may sign bond of any kind in or to any court of this state
Ø I.e., you cannot sign bond as an attorney at law (which is an officer of the court)
v 1.14 – Local Practice (local rules (need MSSC approval) & standing orders)
Ø Look for standing orders, they look like local rules and tell you to do this that or the other
v 2.04 – Duty of a Movant
v 2.05 – Trial Briefs
Ø Good advice to prepare a trial brief for every case you try
§ Issues may arise during trial and if you have anticipated them then you have the arguments and law already there and ready to be used.
Ø State Court: Not filed, but you must simultaneously give your opposing counsel a copy
Ø Federal Court: file ahead of time
v 3.14 – Note Taking by Jurors (Brand New)
Ø Judge may allow jurors to take notes
v 4.03 – Motion Practice (return to on motion section)
v 4.04 – Discovery Deadlines and Practice
Ø Changes are likely pending to remodel like federal practice
v 5.04 – Notice of Appeal
Ø Appeal from a lower court to the circuit court
Ø Gives you 30 days to appeal (contrary to what incorrect statute says)
v Criminal Matters Not Covered in this course
II. Jurisdiction Over the Person (long arm materials)
v Jurisdiction Over the Person – Long Arm Statute
v Hypo (bar exam type):
Ø Facts: Person from Jackson County named Joe Plaintiff, took his family out west for a vacation. Arrives in Newport, OR, and meets a shop-owner named Bill Artisan (Bill crafts driftwood into items). They purchase a lamp from him. They pay $50 then, take the lamp, and promise to send $50 from Miss. Lamp catches fire, burns down house in Miss. Joe files a complaint in the Circuit Court of Jackson County for $5 Million. One way to get service is for the complaint to be sent via mail to Bill Artisan
Ø Jurisdiction:
§ Two Tiered Analysis:
· 1) Analyze whether there is jurisdiction under U.S. Const. – 14th Amend Due Process Clause
¨ Cannot be brought unless they have minimum contacts with the forum state, and such lawsuit does not offend traditional notions of fair play and substantial justice
· 2) Whether the state’s long-arm statute reaches that far
¨ § 13-3-57
Ø Options
§ He committed a tort in whole or in part
§ He also might come within the purview of the contract prong
Ø Defense Response:
§ He could make a special appearance to challenge Personal Jurisdiction
· MSSC still calls it “special appearance”
· He must preserve his challenge to personal jurisdiction in order to preserve his appeal (i.e., Personal Jurisdiction can be waived)
§ No response then he may face a default judgment, which could be enforced under the Full Faith & Credit Clause
· At this point Bill would make a collateral attack (ie: Miss. never had jurisdiction to begin with)
· Strategy/Risk: If he makes a collateral attack at home in OR then it is an OR judge, not a Miss. judge, deciding whether there was personal jurisdiction.
¨ Risk though is that you have “put all your jurisdictional eggs in one basket”
v Miss. Code Ann. § 13-3-57
Ø History:
§ Until recently we only had a single criterion (doing business in Mississippi), but was amended in 1960s to include torts and contracts relating to the state
Ø Three Prongs
§ 1) Doing Business
§ 2) Tort: Any nonresident who shall commit a tort in whole or in part against a resident or nonresident of the state of Mississippi
§ 3) Contract: Any nonresident who shall make a contract w/ a resident of this state to be performed in whole or in part in Miss.
v Tort Prong
Ø Dawkins Case (5th Cir?)
· First case interpreting the amended § 13-3-57
§ Facts: Products liability case where hot water heater caused a fire.
§ Held: No Miss. case on point yet; They followed plain language of the statute (tort in part in state)
Ø Smith v. Temco
· First MSSC case interpreting the amended § 13-3-57
§ Facts: Products liability re: a space heater that caused a fire
§ Held: Tort isn’t complete until the injury has occurred, and getting injured in state is part of the tort
