Tennesse Service of Process on Sunday

In Tennessee, with the exceptions contained in §§ 20-2-104 and 20-2-105, civil process shall not be executed on Sunday.  Tennessee Code Annotated § 20-2-106.  

When is a Divorce Final?

Today, the Mississippi Court of Appeals decided Arrington vs. Arrington located here.  The issue in the case was that a final decree was signed by the chancellor but never filed with the Chancery Court. By the time it was filed, one of the parties had contested the decree.  The Court of Appeals found that Rule 58 clearly provides that “[a] judgment shall be effective only when entered as provided in Rule 79(a).”  (Emphasis added).  Rule 79(a) requires the clerk to keep a “general docket” and to enter “all . . . judgments.”  Thus, we may conclude that a judgment is not final until it is recorded in the clerk’s general docket.  M.R.C.P. 58, 79(a).   As a result, the parties were back at square one on a divorce action.

Guardian Ad Litem - Not Necessarily Required in Uncontested Termination of Parental Rights

Pursuant to Mississippi Code §93-15-107 (1)(d), the Court in its discretion may waive the appointment of a guardian ad litem where the termination of parental rights is by a written, voluntary consent. 

Tennessee Case of Interest

Where a plaintiff has signed a settlement agreement swearing that such agreement is “fair and equitable,” she may be judicially estopped from later bringing a legal malpractice claim based on that same settlement.    Kershaw v. Levy, No. M2017-01129-COA-R3-CV (No. M2017-01129-COA-R3-CV).

Releasing One Tortfeasor

What happens when you settle with one tortfeasor, but not another?  In Medley v. Webb, 288 So. 2d 846, 848-49 (Miss. 1974), the Mississippi Supreme Court found that there is “no doubt that a plaintiff may sue another joint tortfeasor” after releasing the other alleged tortfeasor from liability. Further, the Court has delineated the difference between being jointly liable and being a joint tortfeasor. See J&J Timber Co. v. Broome, 932 So. 2d 1, 7 (Miss. 2006) (“Joint tortfeasor claims arise where the separate wrongful conduct of two or more individuals combine to cause an injury, and each because his wrongful conduct bears some responsibility for the injury.” (quoting Richardson v. APAC-Mississippi, Inc., 631 So. 2d 143, 151 n.7 (Miss. 1994))).  The key distinction is whether the claimant is settling with one joint tortfeasor and then pursuing a remedy against another, independently liable, tortfeasor. Id.

Rule 60 - Fraud and Mistake

Below is an excerpt from a brief I am working on dealing with fraud and mistake under Rule 60 of the Mississippi Rules of Civil Procedure.

"Rule 60(b)(1) deals with relief from judgment obtained by fraud, misrepresentation, or other misconduct of the adverse party." Stringfellow v. Stringfellow, 451 So. 2d 219, 221 (Miss. 1984) (emphasis added).  A party is not entitled to relief merely because he is unhappy with the judgment, but he must make some showing that he was justified in failing to avoid mistake or inadvertence; gross negligence, ignorance of the rules, or ignorance of the law is not enough. King v. King, 556 So.2d 716, 722 (Miss. 1990).  A party seeking to set aside an order based on fraud or mistake must prove four things: (1) that the facts constituting the fraud... [or] mistake ... must have been the controlling factors in the effectuation of the original decree, without which the decree would not have been made as it was made; (2) the facts justifying the relief must be clearly and positively alleged as facts and must be clearly and convincingly proved; (3) the facts must not have been known to the injured party at the time of the original decree; and (4) the ignorance thereof at the time must not have been the result of the want of reasonable care and diligence.  Rogers v. Rogers, 94 So.3d 1258, 1264 (¶ 19) (Miss. Ct. App. 2012) (quoting Manning v. Tanner, 594 So.2d 1164, 1167 363*363 (Miss. 1992)); accord Jenkins v. Jenkins, 757 So.2d 339, 343 (¶ 8) (Miss. Ct. App. 2000) (quoting Guthrie v. Guthrie, 226 Miss. 190, 84 So.2d 158, 161 (1955). 

Death of a Fetus: Mississippi vs. Tennessee

The Mississippi Supreme Court has held that a mother is entitled to bring a wrongful-death claim for the death of a nonviable fetus. 66 Fed. Credit Union v. Tucker, 853 So. 2d 104 (Miss. 2003).  Prior to Tucker, Mississippi’s Wrongful Death Act created a cause of action for “the wrongful death of an unborn child where the fetus was viable at the time of death.” Id. at 108 (citing Sweeney v. Preston, 642 So. 2d 332 (Miss. 1994); Terrell v. Rankin, 511 So. 2d 126 (Miss. 1987); Rainey v. Horn, 221 Miss. 269, 72 So. 2d 434 (1954)).Tennessee wrongful-death claims allow recovery only for unborn children deemed “viable” at the time of death. See Tenn. Code § 20-5-106(d).