Burnsed v. Merritt
| Docket Number: | 2009-CA-00051-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 06-22-2010 Opinion Author: Griffis, J. Holding: Reversed and remanded |
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| Additional Case Information: |
Topic: Real property - Continuance - Notice - M.R.C.P. 4 - Improper service - M.R.C.P. 60(b)(1) & (4) - M.R.C.P. 12 - M.R.C.P. 5(a) - M.R.C.P. 55 - M.R.C.P. 6(d) Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Barnes, Ishee, Roberts and Maxwell, JJ. Non Participating Judge(s): Carlton, J. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 12-04-2008 Appealed from: George County Circuit Court Judge: Dale Harkey Disposition: GRANTED JUDGMENT IN FAVOR OF THE MERRITTS FOR A PRIVATE WAY AND EASEMENT OVER BURNSED’S PROPERTY Case Number: 2006-0134(3) |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Robbie R. Eubanks Burnsed |
DARRYL A. HURT, JR. |
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| Appellee: | Bill A. Merritt and Mary Jacquilyn Merritt | GERALD ALAN DICKERSON | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Real property - Continuance - Notice - M.R.C.P. 4 - Improper service - M.R.C.P. 60(b)(1) & (4) - M.R.C.P. 12 - M.R.C.P. 5(a) - M.R.C.P. 55 - M.R.C.P. 6(d) |
| Summary of the Facts: | This case involves a decade-long dispute over the use and ownership of a seventy-five-foot parcel of property that is located between property owned by Robbie Burnsed and property owned by Bill Merritt and Jacquilyn Merritt. In Burnsed v. Merritt, 829 So. 2d 716 (Miss. Ct. App. 2002), the Court reversed and remanded the chancellor’s order that divided the disputed property equally between the parties. The record, however, does not indicate the chancellor ever conducted the “further proceedings” that were ordered. Instead, the Burnsed’s brief reveals that the chancery court action was dismissed, although the reason for the dismissal is not clear. The present case, however, is a new claim, filed in a different court, dealing with the same dispute. The Merritts filed a “Complaint for Private Way” in circuit court naming as defendants “John Does 1 - 100.” The complaint was served on the unknown defendants by publication. No defendant was personally served with process. Despite the history between the Merritts and Burnsed and the previous litigation, the Merritts did not name Burnsed as a party defendant. Burnsed and her husband, through counsel, entered an appearance in the circuit court action when they filed a “motion for time.” The motion asked for more time to answer the complaint. However, Burnsed never answered the complaint or filed a responsive pleading. Burnsed later filed a motion to transfer, asking the circuit court to transfer this action to the chancery court. The chancery court entered an order setting the matter for jury trial. The Merritts filed a motion for a judgment on the pleadings. The circuit court entered a judgment granting the Merritts a private way and easement. Burnsed’s counsel filed an M.R.C.P. 60 motion to set aside the judgment. Eventually, the circuit judge entered an order that overruled the motion for a continuance and the motion to set aside the final judgment. Burnsed appeals. |
| Summary of Opinion Analysis: | Issue 1: Continuance Burnsed argues that the circuit judge committed reversible error in overruling her motion for continuance, because she had pneumonia and was unable to attend the hearing to provide testimony. Although Burnsed’s motion appeared to present a compelling argument to allow a continuance, review of this issue is moot in light of reversible error on the second issue. Issue 2: Notice Burnsed argues that she did not receive proper notice of the Merritts’ motion for a judgment on the pleadings. She also argues that she did not have proper notice before the court ruled on her motion to set aside the final judgment. The real issue in the motion to set aside the judgment is whether the circuit court acquired jurisdiction over Burnsed. The circuit court must determine whether the Merritts could obtain jurisdiction over a known defendant by publication under M.R.C.P. 4. The Merritts commenced this action after many years of litigation over the same dispute. On appeal, the Court ordered the case returned to the chancery court for further proceedings. Instead, the Merritts continued this dispute in a separate court by filing another complaint. The complaint neither named Burnsed as a party defendant nor served Burnsed with a summons and complaint. The complaint named as defendants “John Does 1 - 100,” although they knew or should have known Burnsed would be one of those John Does. The complaint was served by publication under Rule 4(c)(4). The question remains whether the judgment is void for lack of personal jurisdiction. If service was improper, this would be a proper ground for the court to set aside the judgment under M.R.C.P. 60(b)(4). The second question is whether Burnsed was entitled to notice of the Merritts’ motion for a judgment on the pleadings. Certainly, Burnsed entered an appearance in this case, which entitled her, or at least her attorney, to notice of the pleadings that were filed and the hearings that were set. Burnsed, through counsel, filed a motion for time. Burnsed’s motion, while not an answer or responsive pleading under M.R.C.P. 12, was sufficient to enter an appearance and entitle Burnsed to receive notice of pleadings filed under M.R.C.P. 5(a). If the Merritts had sought a default judgment under M.R.C.P. 55, the Merritts would have been required to provide Burnsed a minimum of three days’ notice before a default judgment could be entered. Likewise, Burnsed was entitled to notice of the Merritts’ motion for a judgment on the pleadings. The result of the failure to provide notice of the motion for a judgment on the pleadings is that any judgment obtained without proper notice would be a proper ground to set aside the judgment obtained. This too would be a proper ground for the court to set aside the judgment under Rule 60(b)(1). In addition, the transcript does not indicate that there was proper notice for the hearing wherein the trial court overruled the motion to set aside the final judgment. M.R.C.P. 6(d) requires that a party is entitled to five days’ notice of a hearing on a written motion. This rule also presupposes that once a hearing is scheduled, the parties will have an opportunity to appear and argue the motions that were noticed. The circuit court committed a clear error in failing to require the proper notice for the motions. |
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