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USF&G Insurance Co. of Mississippi v. Walls9/15/2005
3 Ency. of Miss. Law ยง 22:222 (J. Jackson & M. Miller eds. 2001) (citing Griffith).
. The conflict between the absence of class actions in Mississippi and Section 11-53-37 has also not gone unnoticed in jurisprudence outside of our court. When the Fifth Circuit considered a class action challenge to Mississippi's procedures for involuntary commitment of adults to state mental institutions, it examined in dicta the existence-or lack thereof-of class actions under state law. SeeChancery Clerk of Chickasaw County, Miss. v. Wallace, 646 F.2d 151, 155 (5th Cir. 1981). Speaking of class actions, the district court noted that "' here is no way to get that kind of suit into the state courts.'" Id.at 155 n.8. . Yet the Fifth Circuit pointed to Section 11-53-37 as evidence there might be class actions, since the statute "allow Mississippi courts to award attorney's fees from the common fund generated in a class suit." Id.That court also offered Section 75-24-15(4) as evidence that class actions might exist; that statute provides that " othing in this chapter shall be construed to permit any class action or suit, but every private action must be maintained in the name of and for the sole use and benefit of the individual person." The Fifth Circuit argued that a "provision expressly prohibiting consumer class actions . . . [would] thereby imply availability of the class action mechanism." Wallace, 646 F.2d at 155 n.8 (emphasis added). The ancient maxim of "expressio unius est exclusio alterius" was thus quietly evoked-which acknowledges the inference that items not mentioned are excluded by deliberate choice, not inadvertence.
. That court also held that "Mississippi Supreme Court decisions lend support to this assessment," pointing to an older line of cases rejecting the certification of classes, but not the conception of class actions. Id. The Fifth Circuit's opinion and all the cases it relied upon were reported before Mississippi's adoption of the Rules of Civil Procedure.
. Rule 81(f) of the Mississippi Rules of Civil Procedure provides that " n applying these rules to any proceedings to which they are applicable, the terminology of any statute which also applies shall, if inconsistent with these rules, be taken to mean the analogous device or procedure proper under these rules." Section 11-53-37 uses terminology-class action suits at equity-which is inconsistent with the omitted Rule 23.
. Rule 81 dictates that any inconsistency be resolved in favor of the "analogous device or procedure proper under these rules," but there is no analogous device. There is a contradiction; on one side stands our established case law, which recognized class actions at equity, and our statute, which provides for costs in class actions suits. On the other side stands our Rules of Civil Procedure, which omit class actions, and our recent jurisprudence, which do not recognize class actions at equity.
. Our modern jurisprudence-that is, after the 1982 adoption of the Rules--has apparently not been clear enough to alert practitioners and the bench that class actions no longer exist at equity. In Marx we upheld a trial court decision that "there was no class action available in this case." 632 So. 2d at 1322 (emphasis added). Since "the lower court made specific, supportable findings that the requirements for a class action were not met," the claim was barred " ven if this basis [for the claim] was available." Id.(emphases added). We also noted that while we once "recognized the possibility of class action suits as a matter of general equity jurisdiction in chancery court under limited circumstances," that was " rior to the enactment of the Rules of Civil Procedure." Id.(empha
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