Hood v. Mordecai

900 So. 2d 370, 2004 WL 1925956
CourtCourt of Appeals of Mississippi
DecidedAugust 31, 2004
Docket2002-CA-01593-COA
StatusPublished
Cited by1 cases

This text of 900 So. 2d 370 (Hood v. Mordecai) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hood v. Mordecai, 900 So. 2d 370, 2004 WL 1925956 (Mich. Ct. App. 2004).

Opinion

900 So.2d 370 (2004)

Harold HOOD d/b/a H & H Land & Timber, Appellant
v.
Elaine MORDECAI, Appellee.

No. 2002-CA-01593-COA.

Court of Appeals of Mississippi.

August 31, 2004.
Rehearing Denied February 1, 2005.
Certiorari Denied April 28, 2005.

*371 David S. Van Every, attorney for appellant.

Carter Dobbs, attorney for appellee.

Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.

*372 CHANDLER, J., for the Court.

¶ 1. On August 15, 2002, the Monroe County Circuit. Court denied Harold Hood's motion to set aside a default judgment entered against him, after the circuit court struck his answer to a complaint by Elaine Mordecai alleging he wrongfully cut timber upon her land. Hood's answer was not allowed because of his failures to comply with discovery orders. Hood appeals, asserting six assignments of error which we quote verbatim. Finding no error, we affirm.

1. WHETHER THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT SETTING ASIDE THE DEFAULT JUDGMENT.
2. WHETHER THE TRIAL COURT ERRED IN NOT HOLDING A HEARING ON DAMAGES OR IN FINDING THE PROOF OF DAMAGES WAS SUFFICIENT.
3. WHETHER THE TRIAL COURT ERRED IN NOT REQUIRING PLAINTIFF TO REAPPLY TO THE CLERK OF COURT FOR ENTRY OF DEFAULT AFTER THE FIRST DEFAULT WAS CURED.
4. WHETHER DEFENDANT WAS ENTITLED TO ACTUAL NOTICE OF HIS COUNSEL'S WITHDRAWAL FROM THE CASE.
5. WHETHER DEFENDANT WAS ENTITLED TO THREE DAYS NOTICE OF THE HEARING ON PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT PURSUANT TO M.R.C.P. 55(b).
6. WHETHER THE TRIAL COURT ERRED IN NOT FINDING AS A MATTER OF LAW THAT THE PLAINTIFF'S CLAIM WAS BARRED BY THE STATUTE OF LIMITATIONS.

FACTS

¶ 2. Mordecai owned land in Monroe County. Persons unknown to her cut the timber on this land. Wilma Robertson and Wanda Allen owned land adjacent to Mordecai's land, and at some prior date that is not precisely ascertainable from the record, they had conveyed the timber interest to their land to Hood. Mordecai's attorney contacted Hood in 1998 and asked him if he knew the person responsible for cutting Mordecai's timber. Hood denied cutting the timber, and told Mordecai's attorney that he had sold the timber interest he purchased from Robertson and Allen to Wayne Moody. Mordecai filed suit against Moody and John Doe on September 18, 1998, and Moody was served with process.

¶ 3. Moody called Mordecai's attorney and told him that he had not cut the timber. Mordecai's attorney again contacted Hood, and Hood told him he had sold the timber rights to Jerry Oaks. On August 24, 1999, Mordecai filed an amended complaint against Hood and John Doe. Process was served the next day, and on October 18, 1999, Hood was served with plaintiff's first request for admissions. Hood filed no answer to the complaint nor response to the discovery.

¶ 4. On January 24, 2000, Mordecai filed a motion for default judgment and application for a writ of inquiry. On January 25, 2000, Hood received personal service of the motion and application. On February 1, 2000, the circuit court held a hearing, and Hood personally appeared. Hood testified that he had recently hired an attorney to defend the action, and that his mailing address was 1414 Hughes Road, Columbus, Mississippi 39702. The circuit court granted Hood ten days to answer the complaint and assessed sanctions of $730.

¶ 5. On February 10, 2000, Luanne Stark Thompson entered an appearance and filed *373 Hood's answer to the complaint and response to the plaintiff's first request for admissions. On May 4, 2000, Mordecai mailed plaintiff's request for production of documents to Thompson. No response was made, and on June 16, 2000, Mordecai filed a motion to compel and mailed a copy of the motion to Thompson. On June 26, 2000, the circuit court entered an order setting a hearing on the motion for July 17, 2000.

¶ 6. During May, June and July of 2000, Thompson made multiple efforts to contact Hood personally, and twice wrote to him via certified mail explaining the necessity of complying with discovery. Both of these letters were returned "unclaimed." Aside from the initial meeting in which Hood retained Thompson, Hood only met with her on one occasion, outside her office as she was returning from a court appearance on a different matter, and Hood told her he had not located the documents showing that he had conveyed his interest in the timber on the land adjacent to Mordecai's, but he would find them and give them to her. Hood never provided these documents to Thompson.

¶ 7. On the date of the hearing, July 17, 2000, Thompson moved to withdraw as counsel, and the motion was granted. Hood did not attend the hearing. After the hearing, the circuit court entered an order stating that if Hood had not responded to the request for production of documents by August 17, 2000, Hood's answer to the complaint and answer to the plaintiff's first request for admissions would be stricken, and that Mordecai could then proceed to obtain judgment by default. A copy of the order was mailed by certified mail to the address that Hood provided the court as his mailing address, but it was returned unclaimed. On August 30, 2000, the circuit court entered an order striking Hood's answers to the complaint and plaintiff's first request for admissions, and ordered that Mordecai could proceed to obtain judgment by default. On the same day, the circuit court issued a writ of inquiry, an interlocutory judgment on the writ of inquiry and a default judgment against Hood for $122,044.

¶ 8. Mordecai personally served Hood on November 6, 2000, with a set of interrogatories and request for production of documents aimed at discovering his financial assets in preparation for collecting on the default judgment. Hood did not respond to these discovery requests. Mordecai filed a motion to compel, and an order was entered on January 29, 2001, setting a hearing for February 20, 2001, and Hood was personally served with a copy of this order. Hood did not appear at the hearing. On April 5, 2001, the circuit court entered an order finding Hood in contempt and ordering his incarceration until he complied with discovery.

¶ 9. While incarcerated, on May 4, 2001, Hood filed a petition for bankruptcy in federal court, and he was released. On May 24, 2001 he filed to dismiss the bankruptcy petition, and on June 4, 2001, the bankruptcy pleading was dismissed. On August 10, 2001, Hood filed the motion to set aside the default judgment that led ultimately to this present appeal. And, on January 24, 2002, Hood filed yet a second answer to the initial complaint and response to the initial discovery which had been stricken on August 30, 2000 for failure to comply with discovery. On June 26, 2002, the circuit court held a hearing upon Hood's M.R.C.P. 60(b) motion to set aside the default judgment, and on August 12 issued an order denying that motion.

ANALYSIS

1. WHETHER THE CIRCUIT COURT ERRED IN REFUSING TO *374 SET ASIDE THE DEFAULT JUDGMENT

¶ 10. M.R.C.P. 60(b) motions to set aside default judgments are addressed to a trial court's discretion and are subject to a three part balancing test. In determining whether the trial court has abused its discretion, we consider three factors: "whether the defendant has good cause for default . . . whether the defendant in fact has a colorable defense to the merits of the claim, and . . .

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Carroll v. Carroll
976 So. 2d 880 (Court of Appeals of Mississippi, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
900 So. 2d 370, 2004 WL 1925956, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hood-v-mordecai-missctapp-2004.