Angela L. Turner v. Deutsche Bank National Trust Company, No. 2009-CA-01601-COA
In a foreclosure action, Deutsche Bank attempted to serve Angela Turner by publication, but did not certify that Turner was a non-resident of Mississippi or allege she could not be located in the state after diligent inquiry. The Court of Appeals reversed the Warren County Chancery Court’s refusal to set aside the default judgment and remanded the case.
Service by publication is only permitted “if the defendant…be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a resident of this state or not be found therein on diligent inquiry. M.R.C.P. 4(c)(4)(A).
The rules on service of process are to be strictly construed. Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.
Where notice by publication is resorted to as a basis for jurisdiction of the court, in lieu of personal summons, all the requirements of the statute as to such notice must be strictly complied with.
Roy L. Clincy v. Daudra Atwood and Dale Caskey, No. 2010-CP-00877-COA
Court of Appeals upheld the Circuit Court’s dismissal of a personal injury complaint by an inmate at a correction facility as frivolous.
Gerald Hammond v. Caterpillar Financial Services, No. 2010-CA-00547-COA
In a replevin suit brought by Caterpillar for a Skid-Steer in which it had a perfected security interest. Hammond argued that he was a buyer of a consumer good without knowledge of the prior security agreement. After hearing only arguments, the Circuit Court found that Caterpillar had a perfected security interest under the law of Texas that should be granted in Mississippi and granted Caterpillar Financial possession of the Skid-Steer.
The Court of Appeals held that the Circuit court did not err in not requiring Caterpillar to prove its right to possession when Hammond did not dispute that Caterpillar had a valid perfected security interest.
Anthony Joseph Cuccia v. Julie Anne Cuccia, No. 2010-CA-00083-COA
The Court of Appeals reversed the Desoto County Chancery Court’s grant of sole legal and physical custody to Wife, disagreeing with the Chancery Court’s findings as to the Albright factors.
Regarding “continuity of care” the Chancery Court failed to point out that Husband had sole physical custody for several weeks during the pendency of the divorce, and that the parties had shared joint legal and physical custody for more than a year and a half. Court also found that Husband took an active role in extra-curricular activities and continued to participate in the children’s lives to the extent possible given his custodial restrictions.
Chancery Court was wrong in concluding Wife exhibited more of a willingness to provide primary childcare just because Husband allowed the children to live in the sole custody of Wife during the period of time immediately following the parties’ separation when Husband did petition the Court for custody once the Chancery Court became involved.
“A parent’s desire to allow his child the opportunity to enjoy the presence of both parent’s in the child’s life should not later be used against the parent to support a theory that the parent is unwilling to care for the child. Simply because a parent in a child-custody case does not employ a take-no prisoners strategy does not mean that the parent should be marked as unwilling to provide primary care for the child.”
In an unusual step, the Court of Appeals stepped in “for the safety of the children,” and restricted Wife’s ability to allow dogs or any number and weight to roam loose or occupy any portion of Wife’s residence utilized by the children as living space. Wife boarded dogs and the facts showed she had up to 36 dogs, including pit bulls and rottweilers loose on the property and inside her residence.
A bonus of $43,000 received by husband after the separation and as a result of his employer’s performance and not his own performance would not have been marital property but for Husband’s commingling of the funds by paying marital debt. If Husband had kept the money separate, it would not have been marital property. Additionally, since Husband had spent the bonus on marital debt, he should not have been forced to regain the money in the form of a loan to place into a trust for division in the marital estate.
It was error for the Chancery Court not to consider the marital debt in property division where the debt was enough for Husband to need a $40,000 bonus to pay it.
A house purchased by Wife after the separation may have been marital property where Husband had used his bonus money to pay down mortgage of first house and where temporary alimony payments from Husband were part of the income Wife used to qualify for the loan on the new house.
Rehabilitative alimony payments to wife erroneous where Husband could not meet his monthly expenses, and where Wife had received large award of division of marital property and Husband had paid much money to Wife in the form of temporary alimony, and wife had personal income.
Carolyn Epperson v. Southbank, No. 2010-CA-00056-COA
Court of Appeals reversed Alcorn County Circuit Court, ruling that Southbank was in error where Plaintiff was a joint owner of a CD and asked for withdrawal of the CD and bank refused because Plaintiff did not have original certificates to present and such requirement was not present in the contract. Joint owners of CD later changed names on the CD’s and took Plaintiff’s name off. Plaintiff filed suit against Southbank. Court of Appeals ordered Southbank to pay Plaintiff the value of the CD’s at time she requested withdrawal ($233,183.45) plus interest.
CD’s are non-negotiable, non-transferable instruments governed by contract law. Article 3 of the UCC does not apply.
“When an account is held jointly in the name of one depositor or another, ‘each depositor is allowed to treat joint property as if it were entirely her own.”
Connie Mack Douglas and Charlene Douglas v. Denbury Onshore, LLC, No. 2010-CA-00369-COA
An oi and gas case. Douglas’s didn’t want Denbury re-opening an old gas well, alleging it was too close to their residence. Denbury had a valid lease of the mineral estate. Denbury prevailed.
“In Mississippi, when land is severed to create a surface and mineral estate, the two estates are separate and distinct. The owner of a mineral estate has a corporeal possessory interest in the minerals. The mineral estate is dominant over the surface estate. As such, a mineral owner or a lessee of the mineral estate, in the absence of additional rights expressly conveyed or reserved, may use as much of the surface as is reasonably necessary to exercise its right to recover minerals without liability for surface damage. Likewise, the mineral owner has the absolute right to select the location for drilling a well.”
