Brown v. Tate

• Decision Date: 07 August 2012
• Docket Number: No. 2011–CA–00335–COA.,2011–CA–00335–COA.
• Citation: 95 So.3d 745
• Parties: Phillip BROWN, II, Brenda Brown Gordon, Dorothy Jean Love, Rosalynn Naylor, Charles Naylor, Crystal Naylor, and Glen Brown, Appellants v. John V. TATE, Jr., Successor in Interest to Ponta Properties, Inc., Appellee.
• Court: Mississippi Court of Appeals

95 So.3d 745

Phillip BROWN, II, Brenda Brown Gordon, Dorothy Jean Love, Rosalynn Naylor, Charles Naylor, Crystal Naylor, and Glen Brown, Appellants

v.John V. TATE, Jr., Successor in Interest to Ponta Properties, Inc., Appellee.

No. 2011–CA–00335–COA.

Court of Appeals of Mississippi.

Aug. 7, 2012.

Leslie C. Gates, attorney for appellants.

J. Michael Corrigan, attorney for appellee.

Before IRVING, P.J., BARNES and CARLTON, JJ.

BARNES, J., for the Court:

¶ 1. This case arose when Ponta Properties Inc. (Ponta) ¹ filed a complaint in the Lauderdale County Chancery Court in May 2005 for a partition of real property against A. Phillip Brown II (A.P. Brown), Charles Naylor, Crystal Naylor, Rosalynn Naylor, Glen Brown, Brenda Brown Gordon, Billy Jean Brown, Dorothy Jean Love, Arthur Love, and Alfreda King (Defendants), who each owned an interest in the subject property. Tate contends that all of the Defendants but one, Brenda Gordon, were properly served with process under Mississippi Rule of Civil Procedure 81, either personally or by notice of publication, and summoned to appear at the chancery court for a hearing in July 2005. However, only one Defendant appeared at the hearing. No action was taken at the hearing, and no order of continuance was filed. Five years later, in August 2010, realizing Brenda Gordon had mistakenly not been served with a summons, Tate personally served her with a summons to appear at a hearing on November 22, 2010. She appeared pro se and claimed the hearing was unfair; so the chancellor continued the hearing until January 31, 2011. In January, neither Brenda Gordon nor any of the other Defendants appeared at the hearing to contest the action; therefore, the chancery court entered a judgment against them, ordering the property partitioned by sale. The remaining Defendants in the action filed a motion to reconsider, objecting to the chancellor's ordering a partition by sale instead of a partition in kind. Additionally, they claimed that they had not been properly served or given notice of the proceedings. The chancery court overruled the motion, and the Defendants appealed.

¶ 2. Rule 81 provides special procedures for certain types of proceedings enumerated in Rule 81(d)(1)-(2), which includes partition actions. For these special proceedings, Rule 81(d)(3)-(4) provides: “Complaints and petitions filed ... shall not be taken as confessed.... No answer shall be required ... but any defendant or respondent may file an answer or other pleading or the court may require an answer if it deems it necessary to properly develop the issues.” Regarding the proper procedure for a summons, Rule 81(d)(5) provides that upon filing the action:

summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the same shall be heard. Said time and place shall be set by special order, general order or rule of the court. If such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent. The court may by order or rule authorize its clerk to set such actions or matters for original hearing and to continue the same for hearing on a later date.

(Emphasis added.) We find the entry of judgment against these Defendants was in error as no new Rule 81 summons was issued; accordingly, we reverse the judgment and remand the case to the chancery court for further proceedings consistent with this opinion.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. On May 20, 2005, Ponta filed a complaint for partition of real property against the Defendants, each of whom at that time owned an undivided interest in the subject property. Ponta claimed that the property was not susceptible to partition in kind; instead, a partition by sale should be ordered, whereby the court would sell the property and partition the proceeds among the owners in accordance with their various ownership interests.

¶ 4. On June 1, 2005, a summons was issued under Rule 81 for the out-of-state Defendants, A.P. Brown, Glen Brown, Billy Jean Brown, Dorothy Jean Love, Arthur Love, and Alfreda King, who were given notice to appear and defend at the Lauderdale County Chancery Court on July 20, 2005.² Notice of the action was also published in a local newspaper, The Meridian Star, three times in June 2005. Also, on June 1, Rule 81 summonses for the July hearing were issued to in-state Defendants Charles Naylor, Crystal Naylor, and Rosalynn Naylor as well. The record indicates that all of the in-state Defendants were served with process on June 3, 2005. Because of a mistake later admitted by Tate, another in-state Defendant, Brenda Brown Gordon, was not issued a summons for the July 20 hearing. On July 20, 2005, the hearing was held on the partition, but the only defendant to appear was A.P. Brown, who was represented by counsel. However, no action was taken at the hearing, ³ and no continuance was filed.

¶ 5. The chancery court docket shows no activity in the case for over five years, until August 2010, when a Rule 81 summons was personally served on Brenda Gordon, advising her of a hearing on November 22, 2010. Additionally, on October 5, 2010, a certified letter was sent to A.P. Brown ⁴ from counsel for John Tate Jr., notifying Brown that Tate had purchased Ponta's interest in the property, as well as the interests of Arthur Love, Billy Brown, and Alfreda King,⁵ giving Tate an undivided two-thirds ownership interest in the property. The letter also advised A.P. Brown, as well as three other defendants,⁶ that there would be a hearing on November 22, 2010 in the chancery court, where Tate would seek to obtain an order to sell the property at the courthouse to the highest bidder, and for the proceeds to be divided among the owners. But, Tate issued no formal summonses for this hearing to any of the other Defendants except Brenda Gordon.⁷

¶ 6. At the November 22, 2010 hearing, Brenda Gordon was the only defendant to appear.⁸ An agreed order was entered continuing the November 2010 hearing until January 31, 2011. Also, Tate filed motions, applications, and supporting affidavits for default judgments against Defendant A.P. Brown for failure to appear at the November 22, 2010 hearing, and against Defendants Dorothy Love and Glen Brown for failing to appear at the July 20, 2005 hearing.⁹ The chancery clerk made an entry of default against these Defendants under Mississippi Rule of Civil Procedure 55(a).

¶ 7. The record shows no formal summonses were issued to any Defendants for the January 31, 2011 hearing, and not surprisingly, no Defendants appeared. The chancellor entered a judgment ordering partition of the property by sale on March 25, 2011. He found that the remaining Defendants—A.P. Brown, Glen Brown, Brenda Gordon, Charles Naylor, Crystal Naylor, Rosalynn Naylor, and Dorothy Love—had been properly served with process, and that the only objection to the sale was by Brenda Gordon during her court appearance in November 2010. On February 11, 2011, Brenda Gordon filed a pro se motion for reconsideration because the order “was unfair and unconstitutional.” The chancellor overruled her motion as untimely under Mississippi Rule of Civil Procedure 59.

¶ 8. On February 22, 2011, Leslie Gates, counsel on behalf of all of the Defendants, filed a “motion to set aside default and default judgment,” ¹⁰ and for relief from the January 2011 judgment under Mississippi Rule of Civil Procedure 60, arguing that, under the circumstances, a partition in kind would be more practical than a partition by sale. Also, out-of-state Defendants A.P. Brown, Glen Brown, and Dorothy Love “specially appeared” in the motion, contending that they had not been properly served with a summons; thus, the chancery court did not have jurisdiction to enter judgment against them. These Defendants argued that Mississippi law authorizing publication summonses in this case was unconstitutional, and that although copies of the summonses were mailed to them, they did not receive actual notice of the action.¹¹ Also, regarding the alleged default of these three Defendants, it was noted that while Tate published notice for them to appear in chancery court in July 2005, the action was not heard at that time, and there was no order of continuance entered in July 2005. Further, the motion noted that there were no additional court notices to Dorothy Love or Glen Brown, though A.P. Brown did receive notice to appear in court on November 22, 2010. The Defendants argued that under Rule 81, the original summonses lapsed when there was no order entered and no continuance granted on the original hearing date of July 20, 2005; thus, in the absence of another summons, the chancery court lost jurisdiction over Dorothy Love, Glen Brown, and A.P. Brown.

¶ 9. A hearing was held, and on March 1, 2011, the chancery court overruled the motion to set aside the default judgment and other relief, finding that all of the Defendants were properly served with process. The Defendants appealed. On March 3, 2011, the property was sold at public auction to Tate, who was the highest bidder, for the sum of $48,350.

ANALYSIS

¶ 10. The Defendants make several arguments against the propriety of the chancery court ordering the property's partition by sale. However, because we reverse and remand in favor of the Defendants, we do not find it necessary to discuss each of their arguments. Generally, the Defendants argue that the final judgment was actually a “form of” default judgment against them, in particular Dorothy Love, Glen Brown, and A.P. Brown. They claim it was fundamentally unfair to enter a default in this situation because no answer is required under Rule 81, and they were not summoned to appear on a certain return date. Additionally, there was no evidence that at the July 20, 2005 hearing the Defendants were called...