Martin, et al. v. Lowery


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Docket Number: 2004-IA-01849-SCT

Supreme Court: Opinion Link
Opinion Date: 10-13-2005
Opinion Author: SMITH, C.J.
Holding: Reversed and Remanded

Additional Case Information: Topic: Real property - Constitutionality of section 65-7-201 - M.R.A.P. 44(c) - Service of process - Good cause - M.R.C.P. 4(h) - M.R.C.P. 4(e)
Judge(s) Concurring: Waller and Cobb, P.JJ., Easley, Carlson, Dickinson and Randolph, JJ.,
Non Participating Judge(s): Diaz, J.,
Dissenting Author : Graves, J.,
Procedural History: Bench Trial
Nature of the Case: CIVIL - UNCONSTITUTIONAL STATUTE

Trial Court: Date of Trial Judgment: 08-20-2004
Appealed from: TISHOMINGO COUNTY CHANCERY COURT
Judge: Talmadge Littlejohn
Disposition: The Chancery Court of Tishomingo County denied Martin’s motion to dismiss Azzie Lee Martin and Southward and retained jurisdiction contrary to Martin’s motion to dismiss for lack of subject matter jurisdiction pursuant to Miss. Code Ann. § 65-7-201 (Supp. 2004).
Case Number: 2004-002-71-L

Note: UNCONSTITUTIONAL STATUTE

  Party Name: Attorney Name:  
Appellant: TROY MARTIN, ANNIE MAE SOUTHWARD AND AZZIE LEE MARTIN




MICHAEL DALE COOKE



 

Appellee: CLARENCE LOWERY JAMES TRAVIS BELUE  

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Topic: Real property - Constitutionality of section 65-7-201 - M.R.A.P. 44(c) - Service of process - Good cause - M.R.C.P. 4(h) - M.R.C.P. 4(e)

Summary of the Facts: Clarence Lowery filed a complaint alleging that an implied easement by necessity existed across a plot of land owned by Troy Martin, Azzie Lee Martin and Annie Mae Southward. The chancery court denied Martin’s motion to dismiss Azzie Lee Martin and Southward and retained jurisdiction contrary to Martin’s motion to dismiss for lack of subject matter jurisdiction. The Supreme Court granted an interlocutory appeal.

Summary of Opinion Analysis: Issue 1: Constitutionality of section 65-7-201 The chancellor, acting sua sponte and without citing any finding of facts, ruled section 65-7-201 unconstitutional stating the statute was “totally impractical and not workable and it cannot be carried out under due process of law.” A trial court may not raise the constitutional issue sua sponte. Furthermore, when a statute’s constitutionality is challenged, the Attorney General must be notified and provided an opportunity to respond. M.R.A.P. 44(c) requires that the Supreme Court not decide a constitutional issue until proper notice has been given to the appropriate governmental body. Here, neither party raised the constitutionality of the statute in their pleadings. Only upon filing of their respective briefs in response to the interlocutory appeal did either attorneys address the issue of constitutionality. Therefore, the chancellor exceeded his authority in holding that the statute is unconstitutional. Issue 2: Service of process M.R.C.P. 4(h) requires service of a summons and complaint upon a defendant within 120 days after filing the complaint. Service of the summons on all defendants should have occurred by May 6, 2004. Two of the three defendants in the case at bar, Annie Mae Southward and Azzie Lee Martin were never served with process. Furthermore, Lowery did not move for an extension of time nor did he assert good cause as to why service was not timely made. At the hearing before the chancellor, counsel for Lowery alleged that the reason for not effecting proper service was because of ongoing settlements discussions. However, Annie Mae Southward and Azzie Lee Martin were not part of those discussions. The chancellor’s order fails to include sufficient findings of fact in support as to this issue. Additionally, the chancellor’s bench opinion fails to specify the chancellor’s findings of fact. The chancellor merely states that Lowery has shown good cause. It is not apparent whether or not the chancellor’s determination of good cause in this case is based on substantial evidence. Thus, the chancellor’s failure to make specific findings of fact is an abuse of discretion. In addition, because Rule 4(e) does not provide for service of process waiver by oral agreements, Lowery is prohibited from now claiming Rule 4(h) protection under a good cause argument.


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