Mississippi Advisory Opinions November 10, 1993: AGO 000007069 (November 10, 1993)

AGO 000007069.

Attorney General Mike Moore has received your request for an official opinion from this office and has assigned it to me for research and reply. I will repeat each of your questions, followed by a response.

In your letter you state:

Many questions arose last week during the annual Mississippi Chancery Clerk's convention and study conference pertaining to new legislation. Please respond to the following questions for clarification. Question 1: With the passage of House Bill No. 54 by the 1993 legislature, the clerk is to collect all fees in advance. Please give direction to the collection of the Court Reporter Tax Fee as required by Section 9-13- 21, MCA, 1972.

a) Do we collect the ten dollar ($10.00) fee prior to the filing of a plea or answer?

Response: Please see our prior opinion to Mr. Jack E. Harper, Jr., which addresses this question. A copy of this opinion is attached for your reference. In summary, this opinion holds that the Court Reporter Tax Fee is to be collected at the end of the case. Gulf & S.I.R. Co. v. Mitchell, 112 Miss. 560, 73 So. 577 (1917). House Bill 54, Chapter 481, Laws 1993 did not alter when the reporter's fee accrued or should be collected.

Question 1 (b) If a case filed in one county is heard in another county in the same jurisdiction, how are we to collect the fee prior to the court reporter actually serving?

Response: As answered above, the fee is to be collected at the end of the case.

Question 2: If an uncontested divorce is filed in Chancery Court and it then becomes a contested matter, is the clerk to collect the additional $45.00 fee prior to filing the additional documents?

Response: If a no fault divorce becomes contested, then the additional $45.00 fee should be collected prior to filing the additional documents. When one party attempts to file a complaint (as opposed to a uncontested complaint) against the other, whether the party is filing a new document styled complaint or is attempting to amend a prior filing, the clerk should demand the additional fee from that party.

Question 3: What is the proper filing fee for the following type of cases?

a) Paternity Cases?

Response: Uniform Chancery Rule 9.01 (hereafter Rule 9.01) is still in effect. It requires the prepayment of $75.00 for a complaint other than an ex parte matter. A paternity case is an adversary proceeding and is not an ex parte matter, therefore $75.00 is the proper amount. However, a stipulation in lieu of legal proceedings pursuant to section 43-19-33 of the Mississippi Code of 1972 is not contested and should be considered ex parte with a $25 fee.

Question 3 (b) Lunacy Cases?

Response: A commitment proceeding under sections 41-21-61 et seq. of the Mississippi Code of 1972 are involved, is specialized litigation. The person who is the subject of the hearing has the right to contest the action. We believe Rule 9.01's classification of complaints other than ex parte matters would be correct. Section 41-21-65 requires the posting of a reasonable court cost subject to the affiant's financial ability to pay. We think the rule and statute should be read together so that $75 is the fee, if the affiant is able to pay the same. See section 41-21-79 for payment of costs for indigents.

Question 3 (c) Alcohol/Drug Commitments?

Response: These are governed by sections 41-30-1 et seq. and 41-31-1 et seq. and 41-32-1 et seq. of the Mississippi Code of 1972. The statutes do not state the cost to be prepaid. It is similar to a lunacy case and may be contested. Rule 9.01 would classify the proceeding as a complaint other than ex parte. Under Rule 9.01 the fee would be $75.

Question 3 (d) Uniform Support Petitions (URESA)?

Response: Mississippi Code Section 93-11-29 addresses the issue of Uniform Support Petitions (URESA).

This Code Section states:

A court of this state acting either as an initiating or responding state may in its discretion direct that any part of or all fees and costs incurred in this state, including without limitation by enumeration, fees for filing, service of process, seizure of property, and stenographic service of both petitioner and respondent, or either, shall be paid by the county in which said court is located. Where the action is brought by or through the state or an agency thereof, there shall be no costs or filing fee.

Therefore, there shall be no costs or filing fee if the action is brought by the state or an agency thereof. If brought otherwise the action would require costs. Of those actions listed in House Bill 54, an URESA is most similar to a contempt in child support and would have a $75 cost. It is a contested matter and Rule 9.01 would similarly treat an URESSA as a complaint other than an ex parte matter carrying a fee of $75.

Question 3 (e) Youth Court Cases?

Response: Mississippi Code Section 43-21-205 states: In proceedings under this chapter, no court costs shall be charged against any party to a petition, and no salaried officer of the state, county or any municipality, not any youth court counselor, nor any witness not any expert witness shall be entitled to receive any fee for any service rendered to the youth court or for attendance in the youth court in any proceedings under this chapter; but the fees of the circuit and chancery clerks in youth court cases originating by petition shall be paid as is provided by law for like services in other cases and shall be paid by the county on allowance of the board of supervisors on an itemized cost bill approved by the judge. These costs shall be paid out of the general fund. No clerk shall be allowed compensation for attendance in youth court.

A youth court action is in the nature of a complaint other than an ex parte matter under Rule 9.01 carrying a $75 fee. It is often hotly disputed with motions filed and hearings conducted. In this sense it also most closely corresponds to the actions in House Bill 54 which carry a $75 fee.

Question 3 (e) (Continued) Is it considered a new case if there has been a prior adjudication and the matter returns to court under a new petition?

Response: If a matter returns to court under a new petition, then that matter will be considered to be a new case, and should be treated as such.

Question 4: If a summons and a subpoena is issued and served on a single defendant, what is the proper process fee?

Response: Mississippi Code Section 25-7-19, amended in 1993 by Senate Bill 2230, Chapter 366, states that serving a summons to a single defendant is $25.00. Serving a subpoena on a single defendant is $25.00. Therefore, serving a summons and a subpoena on a single defendant would be $50.00 if performed by the sheriff.

Question 5: Is an answer to a complaint the same as a cross-complaint? To be a cross- complaint must the document be labeled "Cross-Complaint"?

Response: An answer is not the same as a cross-complaint. The best practice would be to designate the document as a cross- claim or counterclaim; however, if a document is not designated as such, it may be allowed as such if it asserts what has to be asserted by MRCP 13, and the clerk is entitled to the fee. Rule 13 of the Mississippi Rules of Court (1993) specifically defines counterclaims and cross-claims, which we believe was intended by the phrase "cross-complaint" under 25-7-9(2)(n).

Question 6: Is there authority to charge a fee for subsequent mailings of withholding orders to new employers after a case has been finalized? If so, what fee can be charged?

Response: There is no specific fee for mailing a withholding order.

Question 7: Section 25-7-9(2) states that a specific fee shall be a total fee for all services performed by the clerk with respect to a complaint. If the proper fee has been paid and the Chancellor signs a final judgment instructing the clerk to record the judgment in the land records of the county, is the clerk to collect the fees prescribed in Section 25-7-9(1)?

Response: The fee paid under 25-7-9(2) covers general services in connection with the case. That fee does not cover ancillary matters such as filing land records or certifications that arise from the case and the separate fees for such services under 25-7-9(1) should be charged.

Question 8: In a case where the plaintiff has paid the proper court cost and the Chancellor orders the defendant to pay the cost of court, does the Chancellor's final judgment cause these funds to become trust funds and if so does that judgment also grant authority for the clerk to refund to the plaintiff his fees when collected?

Response: Under the facts described in Question 8 the court's order would be a judgment for the plaintiff for court costs. The clerk would not refund any costs and no trust is formed. The plaintiff has a judgment which can be enforced by post judgment remedies such as execution or garnishment.

Question 9: When recording a deed describing multiple lots within one subdivision, is the proper fee $6.00 for the deed plus $1.00 per subdivision or $1.00 per lot within that subdivision?

Response: Under section 25-7-9 (b) a fee for recording a deed is $6.00. That subsection also states: Sectional index entries per section or subdivision ... $1.00 We understand this section to mean there is a $1.00 fee in addition to the general $6.00 fee for sectional entries within one section or subdivision. If a deed requires an entry in two sections then $2.00 would be charged. If a deed requires one entry or six in one section then the charge is $1.00. The same is true of subdivisions. Under the facts you state in question 8, the fee would be $6.00 for the deed and $1.00 per subdivision. The other interpretation you mention would result in the language meaning $1.00 per sectional index entry and the legislative intent of "per section or subdivision" would be ignored.

Question 10: House Bill No. 996 states that "every instrument describing land and required to be entered in the general index shall also be entered in the sectional index". When a release is filed listing a book and page number with no legal description, is it required by law to index the instrument in the sectional index?

Section 89-5-33(3)(b) states in part:

Instruments describing oil, gas or other mineral interests solely by reference to previously recorded instruments need not be entered in the sectional index but shall be entered in the general index and noted on the margin of the previously recorded instrument.

Question 11: From our phone conversations we understand that question eleven has been answered by one of the prior questions and is withdrawn.

Question 12: When attesting to personal releases of deeds of trust by form of marginal notation, what is the proper fee to be collected?

Response: Sections 89-1-51 and 89-5-21 allows the trustee of a deed of trust to cancel a deed of trust by making a marginal notation which has to be attested by the chancery clerk. Section 25-7-9(1)(e) states in part:

...entering marginal notations on documents of record: If performed by the clerk or his employee, per page $.50

Question 13: When official bonds are filed, the statutes speak as to the manner in which they are to be approved. Are "Continuation Certificates" of those bonds to be approved and if so in what manner?

Response: Bonds of county or county-district officers are approved in accordance with section 25-1-19 of the Mississippi Code of 1972. A continuation certificate is nothing more than a new agreement that a surety will continue to act as surety under an already existing bond. It would need approval in the same manner as provided in 25-1-19. A fee of $1.00 is payable for approving such a bond, see section 25-7-43 of the Mississippi Code of 1972.

Question 14: Are constables who have been in office for many years exempted from the law enforcement training rules?

Response: Section 19-19-5 of the Mississippi Code of 1972 mandates the training required by constables. It states: During the constable's term of office, each constable shall attend and, to the extent to which he is physically able, participate in a curriculum, with a duration of two (2) weeks, which addresses the nature and scope of specific duties and responsibilities of a constable and which includes firearm use and safety training, to be established by the Board on Law Enforcement Officers Standards and Training in the field of law enforcement at the Mississippi Law Enforcement Officers Training Academy or such other police academies that are approved by the Board on Law Enforcement Officers Standards and Training pursuant to Section 45-6-9. The board of supervisors of the county shall be responsible for paying, only one (1) time, the tuition, living and travel expenses incurred by any constable of that county in attendance at such training program or curriculum. If such constable does not attend and, to the extent to which he is physically able, participate in such program or curriculum, any further training which may be required by this section shall be completed at the expense of such constable No constable shall be entitled to the receipt of any fees, costs or compensation authorized by law after the first twenty-four (24) months in office if he fails to attend the academy and, to the extent to which he is physically able, participate in the appropriate program or curriculum. Any constable who does not complete the required training before January 1, 1994, may execute and return civil process but thereafter shall not be paid any fees, costs or compensation for executing such process and shall not be allowed to exercise any law enforcement functions or to carry a firearm in the performance of his duties until he has completed such training. The provisions of this subsection shall apply to constables elected at the November 1991 general election and to those who are elected at subsequent elections. The provisions of this subsection shall not apply to a person who has received a certificate from the Board on Law Enforcement Officers Standards and Training evidencing satisfaction of subsections (2) and (3) of Section 45-6-11, or who is exempt from the requirements of subsections (2) and (3) of Section 45-6-11 by the provisions of subsection (1) of Section 45-6-11.

The exemption for those qualifying under 45-6-11 applies to those who are "grandfathered" because they were law enforcement officers under Title 45, Chapter 6 as of July 1, 1981 and those who have been certified by the Board of Law Enforcement Standards and Training. In addition those who completed the constable training program created pursuant to a precursor of 19-19-5 do not have to meet the present training requirements.

Question 15: House Bill 54 speaks of creating a "Chancery Court Clerk Clearing Account"......Would this statute prohibit a clerk from having more than one "chancery Court Clearing Account"?

Example: "Chancery Court Clearing Account #1" for Conservatorship of John Doe. "Chancery Court Clearing Account #2" Receivership for the unknown heirs of Sally Doe.

Response: House Bill 54, codified at section 9-1-43 of the Mississippi Code of 1972 states in part:

The clerk of the chancery court shall account for all monies deposited in and disbursed from such account such account and shall be authorized and empowered to draw and issue checks on such account at such times, in such amounts and to such persons as shall be proper and in accordance with law.

The chancery clerk is commanded to have a clearing account by this section. The intent was to assist in auditing the nonpublic funds, including the amount of fees for purposes of the salary cap which is also part of 9-1-43. It is required that the clearing account to be part of the county depository. We do not think it a violation if a chancery clerk creates different fund numbers within a county depository - all of which are clearing accounts of the chancery clerk.

Very Truly Yours,

MIKE MOORE ATTORNEY GENERAL

By: Larry J. Stroud Special Assistant Attorney General

LJS:sm