Mississippi Code, Court Rules, 2013 Supplement

2013·3.6 MB·English

by  State of Mississippi

CODE
MISSISSIPPI
1972
ANNOTATED
ADOPTEDAS THE OFFICIALCODE OFTHE
STATE OFMISSISSIPPI
BY THE
1972 SESSION OFTHE LEGISLATURE
COURT RULES
March 2013 Supplement
to the
2012 Edition
Prepared by the Editorial Staffofthe Publisher
LexisNexis(
QUESTIONSABOUTTHIS PUBLICATION?
ForEDITORIALQUESTIONSconcerningthispublication,orREPRINTPERMISSION,pleasecall:
800-833-9844
ForCUSTOMERSERVICEASSISTANCEconcerningreplacementpages,shipments,billingorother
matterspleasecall:
CustomerServiceDepartmentat 800-833-9844
OutsidetheUnitedStates and Canada 518-421-3000
FAX [phone]
ForINFORMATIONONOTHERMATTHEWBENDERPUBLICATIONS,pleasecall:
Youraccountmanageror 800-223-1940
OutsidetheUnitedStates and Canada 518-487-3000
Copyright© 2013
by
THE STATE OF MISSISSIPPI
and
Matthew Bender & Company, Inc.
a member ofthe LexisNexis Group
All rights reserved.
LexisNexis and the Knowledge Burst logo are registered trademarks, and Michie is a
trademark of Reed Elsevier Properties, Inc., used under license. Matthew Bender is a
registered trademark ofMatthew Bender Properties, Inc.
4459123
ISBN 978-0-7698-5208-9
®'
LexisNexis*
Matthew Bender & Company, Inc.
701 E. Water Street, Charlottesville, VA 22902-5389
www.lexisnexis.com
(Pub.445I0)
PREFACE
Use ofRules Supplement; format.
The March 2013 Supplement to the 2012 Edition of the Mississippi Court
Rules Annotated is a publication ofLexisNexis. It has been edited, annotated
and indexed bythe staffofthe publishers. The Supplementreflects all changes
and additions to the Rules, the official Comments and Notes, and the Forms
received since the publication ofthe 2012 Rules Edition; the annotations are
reviewed and updated, providing the user with the most current and useful
information.
Each set ofrules included in this Supplement will be followed by an index if
the Supplement contains new rules for the set or ifthere are amendments to
existing rules that necessitate changes in the index appearing in the 2012
Edition.
The material contained in this Supplement will be incorporated into the
2013 Edition ofthe Mississippi Court Rules Annotated.
Scope ofrules and annotations.
This Supplement includes all changes and additions to the Rules, the official
Comments and Notes, and the Forms that have taken place since publication
of the 2012 Edition up to and including amendments effective February 1,
2013. In addition, notes construingthe Ruleshavebeentakenfromthereports
of decisions ofthe Mississippi Supreme Court and the Court ofAppeals and
decisions ofthe appropriate federal courts. These cases will be printed in the
following reporters:
Southern Reporter, 3rd Series
United States Supreme Court Reports
Supreme Court Reporter
United States Supreme Court Reports, Lawyers' Edition, 2nd Series
Federal Reporter, 3rd Series
Federal Supplement, 2nd Series
Federal Rules Decisions
Bankruptcy Reporter
Additionally, annotations have been taken from the following sources:
American Law Reports, 6th Series
American Law Reports, Federal Series
Mississippi College Law Review
Mississippi Law Journal
The annotations also include Editor's notes inserted by the publisher's
editorial staff to explain references or to call attention to obvious errors,
inconsistencies or ambiguities in the Rules, the official Comments and Notes,
and the Forms and to provide advance information on proposed new rules.
Also, bracketshavebeen editoriallyinserted around materialinthetext, when
iii
PREFACE
necessary, to correct misspellings, punctuation or language and incorrect
references to the Rules, sections of the Code, titles of positions, or names of
institutions.
Amendments, additions, changes, and revisions ofrules.
Amendments, additions, changes, andrevisions sincethe 2012 Edition ofthe
Mississippi Court Rules and included in this Supplement are to the following:
Rules of Civil Procedure
Rule 34
Rule 45
Information, suggestions, comments, and questions.
Visit LexisNexis website at http://www.lexisnexis.com for an online book-
store, technical support, customer service, and other company information.
For further information or assistance, please call us toll free at (800)
833-9844, fax us toll free at [phone], email us at
[email protected], orwrite to: Mississippi Editor, LexisNexis, 701
E. Water St., Charlottesville, VA 22902-7589.
March 2013 LexisNexis
IV
MISSISSIPPI RULES OF CIVIL PROCEDURE
Adopted Effective January 1, 1982
CHAPTERV. DEPOSITIONSAND CHAPTERVI. TRIALS
DISCOVERY
Rule
Rule 45. Subpoena.
34. Production of documents and things
and entry upon land for inspection
and other purposes.
CHAPTER COMMENCEMENT OF ACTION: SERVICE
II.
OF PROCESS, PLEADINGS, MOTIONS, AND ORDERS
Rule 4. Summons.
JUDICIAL DECISIONS
Dismissal. lack oftimely service under Miss. R. Civ.
Good cause. P. 4(h), the AC did not relate back to the
Service ofprocess. OC'sfilingunderMiss. R. Civ. P. 15(c);and
Statute oflimitations. (5)the contractordid notshow good cause
for the delayed service. Welch Roofing &
Dismissal. Constr., Inc. v. Farina, 99 So. 3d 274
Trial courterred in dismissinga breach (Miss. Ct. App. Oct. 16, 2012).
ofcontract claim in an original complaint
against the prior owner ofa building due Good cause.
to the untimely service of the current Circuitcourtdidnotabuseitsdiscretion
owner under Miss. R. Civ. P. 4(h) of an when finding that a passenger failed to
amended complaint as the prior owner prove good cause for her failure to serve
was the real partyin interest under Miss. an employee within the 120 days offiling
her complaint because the passenger
R. Civ. P. 17(a), and the prior owner was
timelyserved; theoriginalcomplaintgave chose to do very little in attempting to
the prior owner sufficient notice of the effect service ofprocess on the employee;
thepassengermadetwophonecallstothe
claims and grounds upon which relief
process server, which did not rise to the
whichwas sought underthe liberal notice
p8(lae)a.dWienglcrheqRuoiorfeimnegn&tsCoofnsMtisrs,.InRc..Cvi.v.FaP-. vl3.edvHe—olmofe2d0Hu1ee2aldMitilhsisgC.eanrAcepepAo.frfiLgloEioaXtdIesSc,auI6ns0ce2..,(S—MyiksSesos..
rina, 99 So. 3d 274 (Miss. Ct.App. Oct. 16, Ct. Ap,p. Oct. 2, 2012).
2012).
Dismissal ofa suit seeking to enforce a Service ofprocess.
construction lien was proper as: (1) the Information in the record appeared to
original complaint (OC) did not name the be insufficient to show process in a re-
real party in interest under Miss. R. Civ. plevin action was properly made where
P. 17(a), the current owner (CO) of the there was not a complete, signed return
building; (2)thepriorownerhadconveyed showing proof of service as required by
the property before the OC was filed; (3) Miss. R. Civ. P. 4(f), and thereturndid not
the amended complaint (AC) was time- make clear who was served with process
barred as it was not served on the CO or whether the requirements ofRule 4(d)
untilaftertheMiss. CodeAnn. § 85-7-141 were met; regardless ofthese deficiencies,
limitations period expired; (4) due to the defendant appeared at the proper court-
Rule 8 MISSISSIPPI COURT RULES
house on the correct d—ate. Magee—v. Cov- sustained when a vehicle driven by an
ington County Bank, So. 3d 2012 employee collided with the vehicle in
,
Miss. App. LEXIS 591 (Miss. Ct. App. which she was riding because the em-
Sept. 25, 2012). ployee was not timely served within 120
When a lender failed to comply with days under Miss. R. Civ. P. 4(h), and the
Miss. R. Civ. P. 4(c)(4)(A)byattestingthat statute of limitations as to him expired;
it had performed a diligent inquiry before since the claims against the employer
performing service by publication on a were wholly derivative ofthe employee's
borrower, a default judgment entered actions, the claims against the employer
against the borrower was void; thus, the were barred. Syk—es v. Hom—e Health Care
chancerycourterred in refusingto setthe Affiliates, Inc., So. 3d , 2012 Miss.
voidjudgmentaside underMiss. R. Civ. P. App. LEXIS 602 (Miss. Ct. App. Oct. 2,
60(b)(4). Turner v. Deutsche Bank Nat'l 2012).
Trust Co., 65 So. 3d 336 (Miss. Ct. App. Under Miss. R. Civ. P. 4(h), the trial
2011). court abused its discretion by denying
Nephew was properly noticed in the schooldistrict's andbusdriver's motionto
estate proceeding because the chancery set aside theordergrantingthe extension
court's docket showed that a summons of time because substantial evidence did
was issued to both the nephew and his notsupportafindingofgoodcauseforthe
mother, giving them notice ofthe probate driver's failure to serve the school district
ofa decedent's estate, and that the sum- and bus driver within the required 120-
monses were returned. Walton v. Walton, dayperiod. Thus, theotherdriverwas not
52 So. 3d 468 (Miss. Ct. App. 2011). entitled to an extension of time to effect
service, the statute oflimitations had ex-
Statute oflimitations. pired, and the complaint was subject to
Circuit court did not err in granting an dismissal with prejudice. Copiah County
employersummaryjudgmentinapassen- Sch. Dist. v. Buckner, 61 So. 3d 162 (Miss.
ger's action to recover for injuries she 2011).
CHAPTER PLEADINGS AND MOTIONS
III.
Rule 8. General rules ofpleading.
JUDICIALDECISIONS
Affirmative defenses. against the prior owner ofa building due
Notice pleading. to the untimely service of the current
Affirmative defenses. owner under Miss. R. Civ. P. 4(h) of an
Mortgagors' affirmative defense ofelec- amended complaint as the prior owner
tion ofremedies was waived under Miss. was the real party in interest underMiss.
R. Civ. P. 8(c)becausethefirstreferenceto R. Civ. P. 17(a), and the prior owner was
the doctrine of election of remedies was timelyserved; theoriginalcomplaintgave
within a supplemental memorandum in the prior owner sufficient notice of the
support ofthe mortgagors' motion for re- claims and grounds upon which relief
consideration andtovacate ajudgment in whichwas sought underthe liberal notice
favor of the mortgagee. Knight Props, v. pleading requirements ofMiss. R. Civ. P.
State Bank & Trust Co., 77 So. 3d 491 8(a). Welch Roofing & Constr., Inc. v. Fa-
(Miss. Ct. App. 2011). rina, 99So. 3d 274(Miss. Ct.App. Oct. 16,
Notice pleading. 2012).
Trial courterred in dismissingabreach
ofcontract claim in an original complaint
RULES OF CIVIL PROCEDURE Rule 15
Rule 9. Pleading special matters.
JUDICIALDECISIONS
Fictitious parties. backprovisiondid notapply, which meant
Fraud. that a wife's wrongful death claims
againstthe manufacturerswere untimely.
Fictitious parties.
Miller v. Engelhard Corp., 95 So. 3d 740
Circuit court did not err in granting (Miss. Ct. App. 2012).
summaryjudgment in favor ofthe manu-
facturers because they were not properly Fraud.
substituted pursuant to Miss. R. Civ. P. Chancellor did not err in dismissing a
9(h) and Miss. R. Civ. P. 15(c)'s relation- nephew's lawsuit against his uncles for
backprovisiondid notapply, which meant failure to state a claim upon which relief
that a wife's wrongful death claims can be granted under Miss. R. Civ. P.
againstthemanufacturerswere untimely. 12(b)(6) because the nephew failed to
Miller v. Engelhard Corp., 95 So. 3d 740 plead his claim offraudulent conveyance
(Miss. Ct. App. 2012). with particularity; the nephew pleaded a
Circuit court did not err in granting fraudulent conveyance in general terms
summaryjudgment in favor ofthe manu- butfailed to state with particularitywhat
facturers because they were not properly made the conveyance fraudulent. Walton
substituted pursuant to Miss. R. Civ. P. v. Walton, 52 So. 3d 468 (Miss. Ct. App.
9(h) and Miss. R. Civ. P. 15(c)'s relation- 2011).
Rule 12. Defenses and objections — when and how presented -by
—
pleading or motion motion forjudgment on the pleadings.
JUDICIALDECISIONS
Personaljurisdiction. Complaint alleging a piercing of the
Complaint alleging a piercing of the corporate veil will survive a Miss. R. Civ.
corporate veil will survive a Miss. R. Civ. P. 12(b)(2) motion to dismiss only when
P. 12(b)(2) motion to dismiss only when the complaint sets forth factual allega-
the complaint sets forth factual allega- tions indicating: (1) some frustration of
tions indicating: (1) some frustration of expectations regardingthe partytowhom
expectations regardingthe partytowhom helookedforperformance; (2)theflagrant
helooked forperformance; (2)theflagrant disregard of corporate formalities by the
disregard of corporate formalities by the defendant corporation and its principals;
defendant corporation and its principals; and (3) a demonstration offraud or other
and (3) a demonstration offraud or other equivalent misfeasance on the part ofthe
equivalent misfeasance on the part ofthe corporate shareholder. CanadianNat'l Ry.
corporate shareholder. CanadianNat'l Ry. Co. v. Waltman, 94 So. 3d 1111 (Miss.
Co. v. Waltman, 94 So. 3d 1111 (Miss. 2012).
2012).
Rule 15. Amended and supplemental pleadings.
JUDICIALDECISIONS
Amendment ofpleadings. Amendment ofpleadings.
Conforming to evidence. Grant ofsummaryjudgment in favor of
Relation back. the appellee neighbors in their boundary-
Timeliness. dispute action was proper because the
Rule 17 MISSISSIPPI COURT RULES
appellant neighbor had waived the de- untilaftertheMiss. CodeAnn. § 85-7-141
fense ofadverse possession, Miss. R. Civ. limitations period expired; (4) due to the
P. 15(a). Appellant offered no reason for lack oftimely service under Miss. R. Civ.
the six-month delay between the filing of P. 4(h), the AC did not relate back to the
her answer and her motion to amend the OC'sfilingunderMiss. R. Civ. P. 15(c);and
answer to raise the affirmative defense of (5) the contractordid notshow goodcause
adverse possession; further, the affirma- for the delayed service ofthe CO. Welch
tive defense of adverse possession would Roofing& Constr., Inc.v. Farina, 99So. 3d
have existed prior to the filing of the 274 (Miss. Ct. App. Oct. 16, 2012).
lawsuit, so it was not a fact that would Circuit court did not err in granting
have been found only through discovery. summaryjudgment in favor ofthe manu-
Chariotv. Henry, 45 So. 3d 1237 (Miss. Ct. facturers because they were not properly
App. 2010). substituted pursuant to Miss. R. Civ. P.
Conforming to evidence. 9(h) and Miss. R. Civ. P. 15(c)'s relation-
In a landowner's property dispute with backprovisiondidnotapply,whichmeant
adjoining property owners regarding a that a wife's wrongful death claims
fence, a chancery court did not abuse its againstthe manufacturerswere untimely.
discretion in not permitting a landowner Miller v. Engelhard Corp., 95 So. 3d 740
to amend his complaint to conform to the (Miss. Ct. App. 2012).
evidence, pursuant to Miss. R. Civ. P. Circuit court did not err in granting
15(b), because the proposed amendment summaryjudgment in favor ofthe manu-
wouldhave prejudicedthe adjoiningprop- facturers because they were not properly
erty owners; the proposed amendment substituted pursuant to Miss. R. Civ. P.
wouldhaveallowedthelandownertocom- 9(h) and Miss. R. Civ. P. 15(c)'s relation-
pletely abandon his initial argument of backprovisiondid notapply, whichmeant
deed confirmation and adopt the alterna- that a wife's wrongful death claims
tive argument of deed reformation. againstthe manufacturerswere untimely.
Mahaffey v. Maner, 47 So. 3d 1190 (Miss. Miller v. Engelhard Corp., 95 So. 3d 740
Ct. App. Nov. 9, 2010). (Miss. Ct. App. 2012).
Relation back. Timeliness.
Dismissal ofa suit seeking to enforce a Car owner's request to amend her com-
construction lien was proper as: (1) the plaintwas untimelyand failed toconform
original complaint (OC) did not name the toMiss. R. Civ. P. 15,inthattherequestto
real party in interest under Miss. R. Civ. amend was made outside ofthe discovery
P. 17(a), the current owner (CO) of the window and the owner obtained neither
building; (2)thepriorownerhadconveyed leave of court nor the repair facility's
the property before the OC was filed; (3) writtenconsenttoamend. Beenev. Fergu-
the amended complaint (AC) was time- son Auto., Inc., 37 So. 3d 695 (Miss. Ct.
barred as it was not served on the CO App. 2010).
CHAPTER PARTIES
IV.
Rule 17. Parties plaintiff and defendant; capacity.
JUDICIALDECISIONS
Real party in interest. was the real partyin interest underMiss.
Trial courterred in dismissinga breach R. Civ. P. 17(a), and the prior owner was
ofcontract claim in an original complaint timelyserved; theoriginalcomplaintgave
against the prior owner ofa building due the prior owner sufficient notice of the
to the untimely service of the current claims and grounds upon which relief
owner under Miss. R. Civ. P. 4(h) of an which was sought underthe liberal notice
amended complaint as the prior owner pleading requirements ofMiss. R. Civ. P.
RULES OF CIVIL PROCEDURE Rule 34
8(a). Welch Roofing & Constr., Inc. v. Fa- barred as it was not served on the CO
rina, 99 So. 3d 274 (Miss. Ct.App. Oct. 16, untilaftertheMiss. CodeAnn. § 85-7-141
2012). limitations period expired; (4) due to the
Dismissal ofa suit seeking to enforce a lack oftimely service under Miss. R. Civ.
construction lien was proper as: (1) the P. 4(h), the AC did not relate back to the
original complaint (OC) did not name the OC'sfilingunderMiss. R. Civ. P. 15(c);and
real party in interest under Miss. R. Civ. (5) the contractordid notshow good cause
P. 17(a), the current owner (CO) of the for the delayed service. Welch Roofing &
building; (2)the priorownerhadconveyed Constr., Inc. v. Farina, 99 So. 3d 274
the property before the OC was filed; (3) (Miss. Ct. App. Oct. 16, 2012).
the amended complaint (AC) was time-
CHAPTER DEPOSITIONS AND DISCOVERY
V.
Rule 26. General provisions governing discovery.
JUDICIALDECISIONS
Expert testimony. trial in a medical malpractice matter as a
Supplementation ofresponses. decedent's wife failed to supplement her
discovery responses regarding the sub-
Expert testimony. stance of the expert's testimony as re-
Trialcourterred inallowingaphysician quired by Miss. R. Civ. P. 26 (f)(1)(B) and
to testify about plaintiff's future medical 26(f)(2)(A) to disclose the substance ofthe
treatment and expenses because defense expert's evolving-second-ulcer theory and
counsel was not provided with the sub- to provide meaningful information about
stanceofthephysican'sfacts and opinions thedecedent's hemoglobin andhematocrit
on that subject prior to trial. Bailey Lum- levels as to enable the doctor's counsel to
ber & Supply Co. v. Robinson, 98 So. 3d meet the expert's testimony at trial; the
986 (Miss. 2012). doctor's unexercised right to depose the
expertdid notexcusethewife's unfulfilled
Supplementation ofresponses. duty to supplement and amend he—r ex-
While a surgeon was properly qualified pert—'s opinion. Cleveland v. Hamil, So.
as an expert in surgery under Miss. R. 3d 2012 Miss. App. LEXIS 593 (Miss.
Evid. 702, a doctor was entitled to a new Ct. App. Sept. 25, 2012).
RESEARCHREFERENCES
ALR. Discovery of Deleted Email and
Other Deleted Electronic Records. 27
A.L.R.6th 565.
Rule 34. Production ofdocuments and things andentryuponlandfor
inspection and other purposes.
[Effective until July 1, 2013]
(a) Scope. Any party may serve on any other party a request (1) to produce
and permit the party making the request, or someone acting on his behalf, to
inspect and copy, any designated documents (including writings, drawings,
graphs, charts, photographs, phono-records, and other data compilations from
which information can be obtained, translated, ifnecessary, bythe respondent
throughdetection devicesintoreasonablyuseableform), ortoinspectand copy,
test, or sample anytangible things which constitute or contain matters within
5
Rule 34 MISSISSIPPI COURT RULES
the scope ofRule 26(b) and which are in the possession, custody, or control of
the party upon whom the request is served; or (2) to permit entry upon
designatedland orotherpropertyinthepossessionorcontrol ofthepartyupon
whom the request is served for the purpose of inspection and measuring,
surveying, photographing, testing, or samplingthe property or anydesignated
object or operation thereon, within the scope ofRule 26 (b).
(b) Procedure. The request may, without leave ofcourt, be served upon the
plaintiffafter commencement ofthe action and upon any other party with or
after service ofthe summons and complaint upon thatparty. The request shall
setforth the items tobe inspected eitherbyindividual item orby category, and
describe each item and category with reasonable particularity. The request
shall specify a reasonable time, place, and manner of making the inspection
and performing the related acts. The party upon whom the request is served
shall serve a written response within thirty days after the service of the
request, except that a defendant may serve a response within forty-five days
after service ofthe summons and complaint upon that defendant. The court
may allow a shorter or longer time. The response shall state, with respect to
each item or category, that inspection and related activities will be permitted
as requested, unless the request is objected to, in which event the reasons for
objection shall be stated. Ifobjection is made to part ofan item orcategory, the
part shall be specified. The party submitting the request may move for an
order under Rule 37(a) with respect to any objection to or other failure to
respond to the request or any part thereof, or any failure to permit inspection
as requested.
When producingdocuments, theproducingparty shall produce them as they
are kept in the usual course of business or shall organize and label them to
correspond with the categories in the request that call for their production.
(c) Persons not parties. This rule does not preclude an independent action
against a person not a party for production of documents and things and
permission to enter upon land.
[Effective from and after July 1, 2013]
(a) Scope. Any party may serve on any other party a request (1) to produce
and permit the party making the request, or someone acting on his behalf, to
inspect and copy, any designated documents or electronically stored informa-
tion (including writings, drawings, graphs, charts, photographs, phono-re-
cords, and other data compilations from which information can be obtained,
translated, if necessary, by the respondent through detection devices into
reasonably useable form), or to inspect and copy, test, or sample any tangible
things which constitute or contain matters within the scope ofRule 26(b) and
which are in the possession, custody, or control of the party upon whom the
requestis served; or(2)topermitentryupon designated land orotherproperty
in the possession or control ofthe party upon whom the request is served for
thepurposeofinspection andmeasuring, surveying, photographing, testing, or
sampling the property or any designated object or operation thereon, within
the scope ofRule 26 (b).
6