Cunningham v. Lanier, 07-CA-58633
| Decision Date | 13 December 1989 |
| Docket Number | No. 07-CA-58633,07-CA-58633 |
| Citation | 555 So.2d 685 |
| Parties | Deborah Lanier CUNNINGHAM v. Douglas C. LANIER, Jr. |
| Court | Mississippi Supreme Court |
Richard W. Hamilton, Pascagoula, for appellant.
Ben F. Galloway, III, Owen Galloway & Clark, Gulfport, for appellee.
En Banc.
Conversion of a Motion for Judgment on the Pleadings (under Miss.R.Civ.P. 12(c)) to one for Summary Judgment (under Miss.R.Civ.P. 56) is analyzed in this appeal. This Court's reversal of the Chancery Court's decision constitutes a reaffirmation of its long-standing position that, in the interest of justice and fairness, the rules of civil procedure should be liberally construed to permit a party to file amendments or documents in opposition to a motion for judgment.
In the case sub judice, Deborah Lanier Cunningham appeals from the summary judgment of the First Judicial District of Harrison County Chancery Court terminating alimony awarded her from her ex-husband, Douglas C. Lanier, Jr., in an antecedent divorce proceeding. Specifically, Cunningham appeals the Chancery Court's failure to grant her time to file documents in opposition to the motion for summary judgment.
The divorce, based upon irreconcilable differences, was granted to Cunningham and Lanier in 1985. In that case, the court approved a property settlement which involved payment of alimony to Cunningham.
On April 15, 1987, Lanier filed an action to suspend alimony payments on the ground that his ex-wife remarried. Cunningham On May 28, 1987, Lanier filed a motion for judgment on the pleadings under Miss.R.Civ.P. 12(c). On July 2, 1987, the Chancery Court treated the motion as one for summary judgment and propounded two interrogatories to Cunningham. On July 20, 1987, Cunningham filed her answers to the interrogatories and made the following request:
responded by filing a counterclaim. 1
[Y]our order of July 2 [was] received [on] July 9[.] If the court treats [Lanier's] Motion ... as [one] for a Summary Judgment ... then [I] request that [I] be allowed an additional fourteen days to produce and file counter-affidavits before this court rules on the [motion].
The record indicates that Cunningham's request was ignored, that a hearing on the motion for summary judgment was not held, and that on July 30, 1987, summary judgment was granted. Cunningham's appeal of this decision to this Court consists of a sole issue:
Whether or not the Chancery Court erred by failing to allow her time to present affidavits or other pertinent material in opposition to the Rule 56 motion.
A motion for judgment on the pleadings may be treated as one for summary judgment under Miss.R.Civ.P. 12(c), which states:
After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56; however, if on such a motion matters outside the pleadings are not presented, and if the motion is granted, leave to amend shall be granted in accordance with Rule 15(a). (Emphasis added).
Whether the court treated the motion as a Rule 12(b) motion or a Rule 56 summary judgment motion is determined by whether outside matters, other than pleadings, are considered. Clearly, matters outside the pleadings were presented to and considered by the trial court here. The "findings and ruling" of the court were based on "briefs and ... [other] available information." See Record at 18, Cunningham v. Lanier, (No. 07-58633). "Other available information" included answers to interrogatories propounded by the court to Cunningham. Id. at 14. Since the trial court did consider "matters outside the pleadings," Rule 12(c) provides that all parties be given an opportunity to present all pertinent material. Cunningham's request was timely made and should have been allowed. Justice is served when a fair opportunity to oppose a motion is provided--because consideration of a motion for summary judgment requires a careful review by the trial court of all pertinent evidence in a light most favorable to the nonmovant. See Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983).
Because it failed to grant Cunningham a reasonable time to file opposing documents in the case sub judice, this Court is unable to conclude that the Chancery Court conducted a careful review of all pertinent evidence in a light most favorable to the nonmovant. Moreover, the record reflects a failure by the Chancery Court to specifically address Cunningham's counterclaim--which deserves consideration of its merits. In her counterclaim, Cunningham alleges that Lanier induced her to "abandon and convey all of her real property rights in the homestead of the parties" by offering consideration in the form of "[monthly] payment- As an inducement for [her] to take her property settlement in the form of monthly payments over a period of ten years, [Lanier] loaned [her] the sum of $17,000.00 at the time of the divorce of the parties ... which loan was to repaid to [Lanier] by deduction from the monthly payment required to paid from him to her the sum of $180.32. If the monthly payments from [Lanier] to [her] are terminated then equity requires that the monthly payments from [her] to [Lanier] be terminated.
[s] ... over a ten year period." Cunningham described the specific settlement
Cunningham further alleges that Lanier would be unjustly enriched if the periodic payments are suspended--in which case, "all property rights of the parties [should] be put is [sic] status quo as before the divorce" and "an equitable division of title, possession and control of the mutually acquired property" should be made. Proof of the veracity of her counterclaim may preclude a judgment in favor of Lanier--notwithstanding that his ex-wife may have remarried.
Construction and enforcement of the rules of civil procedure cited in the preceding subsection have been addressed in a litany of cases. See, e.g., Hudson v. Parvin, 511 So.2d 499 (Miss.1987) (); Terrell v. Rankin, 511 So.2d 126 (Miss.1987); Walton v. Bourgeois, 512 So.2d 698, 700 (Miss.1987); Smith v. H.C. Bailey Companies, 477 So.2d 224, 233 (Miss.1985) (citing Smith v. Community Fed. Sav. & Loan Ass'n of Tupelo, 77 F.R.D. 668, 670-71 (N.D.Miss.1977) ( Fed.R.Civ.P. 56)); Bourn v. Tomlinson Interests, Inc., 456 So.2d 747, 749 (Miss.1984). A continuance of the summary judgment proceeding is "frequently necessitated" in order to enforce the dictates of these rules. Walton, 512 So.2d at 700 (citations omitted).
Application of the law to the facts clearly leads this Court to conclude that the Chancery Court abused its discretion by failing to grant Cunningham's reasonable request for time to file affidavits or other pertinent material in opposition to the motion for summary judgment. Basically, the court's discretionary abuse constituted a circumvention of well-established law in Mississippi. Until reasonable time to file opposing documents is granted and, until that time expires, summary judgment is an inappropriate vehicle for disposition of the case. 2
For the foregoing reasons, the Chancery Court decision is reversed and remanded. See Bourn, 456 So.2d at 749 () (citation omitted). In remanding the case, the Chancery Court is reminded that its reconsideration of the motion for summary judgment must take into account, not only any documents which may be filed in opposition to the motion, but Cunningham's counterclaim as well; that is, the counterclaim must be specifically addressed.
REVERSED AND REMANDED.
DAN M. LEE, P.J., and ROBERTSON, ANDERSON and BLASS, JJ., join this opinion.
On September 20, 1985, Douglas C. Lanier, Jr., and Deborah Lanier were divorced by judgment of the chancery court of the First Judicial District of Harrison County. Incorporated within the decree was a lengthy property settlement. The two pertinent paragraphs of the property settlement were:
LOAN
Douglas C. Lanier, Jr., agrees to make Deborah Lanier a loan as follows: $17,000.00 at five (5) percent payable for a period of ten years ($810.32 per month payback). Deborah Lanier agrees to execute a note payable to Douglas C. Lanier, Jr.
Douglas C. Lanier, Jr., agrees to pay Deborah Lanier periodic alimony in the sum of $2,500.00 per month for a period of ten (10) years beginning October 1, 1985. It is understood between the parties that said alimony payments for tax purposes shall be a deduction for Douglas C. Lanier, Jr., and income for Deborah Lanier.
On April 15, 1987, Douglas filed a motion to suspend alimony payments because Deborah had remarried, and was then Mrs. Deborah Lanier Cunningham.
On May 22 Deborah filed an answer alleging by her first defense that Douglas would be unjustly enriched by terminating the alimony; by second defense that the parties were "mutually mistaken" in labeling the alimony "periodic" when it should have been "lump sum"; by third defense that Douglas had failed to state a cause of action; and then by answer denying the allegations of the motion. Her answer also contained a counterclaim:
2.
The DEFENDANT/CROSS-PLAINTIFF would show that as an inducement to...
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