Journey v. Long

• Decision Date: 04 September 1991
• Docket Number: No. 90-CA-0376,90-CA-0376
• Citation: 585 So.2d 1268
• Parties: W.K. JOURNEY and Beulah Journey Evans, d/b/a Delta Drilling Company v. Tommy LONG, Individually; Sammy Long, Individually; Trinity Long and Drew Long, Minors, By and Through Their Natural Parents, Tommy and Sammy Long.
• Court: Mississippi Supreme Court

Page 1268

585 So.2d 1268

W.K. JOURNEY and Beulah Journey Evans, d/b/a Delta Drilling Company v. Tommy LONG, Individually; Sammy Long, Individually Trinity Long and Drew Long, Minors, By and Through Their Natural Parents, Tommy and Sammy Long.

No. 90-CA-0376.

Supreme Court of Mississippi.

Sept. 4, 1991.

Dissenting Opinion of Justice McRae Sept. 25, 1991.

Caroline R. Moore, Eupora, for appellant.

Gina Lynn Bardwell, Gregory A. Maddox, Abraham & Rideout, Greenwood, for appellee.

Before ROY NOBLE LEE, C.J., and SULLIVAN and BANKS, JJ.

BANKS, Justice, for the Court:

I

Here we are presented with a default judgment in a personal injury action wherein no evidence supportive of the determination of damages appears of record. For that reason, we reverse.

II

On May 2, 1988, Plaintiffs Tommy and Sammy Long, on behalf of themselves and their two children, ("Longs") filed a complaint alleging negligence on the part of the defendants, W.K. Journey and Beulah Journey Evans, doing business as Delta Drilling Company ¹. Specifically, the complaint charged that defendants had negligently maintained the water system, allowing the water to become contaminated, and that, as a result of this contamination, the plaintiffs became sick with salmonella. They requested actual damages in the amount of $315,926.25, and $400,000.00 in punitive damages. No answer was filed, and an application for entry of default, with the supporting affidavit of plaintiff's attorney, was filed on August 26, 1988. Counsel certified that the notice of application for entry of default was served by mail on Wendy Evinger, attorney for defendants. No response was filed.

On September 12, 1988, the deputy clerk entered default against the defendants. On March 21, 1989, the court entered a judgment in favor of the individual plaintiffs totaling $25,000.00. ² Additionally, the court awarded attorneys' fees in a sum equal to 33 and 1/3% of the amount awarded each plaintiff and provided that the plaintiffs be awarded punitive damages in an amount to be determined at a later date. The record does not reflect the filing of a motion for default judgment or that a hearing date was set. Defendants were not notified of the hearing. The record does not reflect that the case was ever set for trial. Most importantly, there is no record of a hearing.

On August 11, 1989, after they were summoned to an examination of judgment debtors, defendants filed a "Motion to Set Aside Default Judgment and Motion for Continuance" alleging that they had, in fact, filed a timely answer and requesting a continuance of the August 15 date for examination. The record does not reflect a response to or ruling on any part of this motion.

Defendants next filed an "Amended Motion to Set Aside Default Judgment" on February 27, 1990, and a notice of hearing on the motion for March 5. In the amended motion they added arguments that defendant Journey was not in fact an owner of Delta Drilling, was not a proper party to the action and that they had made an appearance and were therefore entitled to notice of a motion for default judgment and received none. Plaintiffs responded to the latter motion on March 5, 1990. In support of their response, plaintiffs attached two affidavits--one from an attorney who represented them and the other from the circuit clerk. Both affidavits stated that no answer was filed or received by either affiant.

On March 5, 1990, a hearing was held. Two witnesses, Wendy Evinger and defendant Beulah Evans, testified. Evinger established that she had negotiations with counsel for the plaintiffs over the dispute in question before the suit was filed and she testified without contradiction that she had talked with counsel after suit was filed concerning his allowing a few extra days in which to file an answer. She stated that permission was granted but that she did not need the extra time because she was able to complete her answer and bring it to the courthouse for filing within thirty days of service of the complaint.

Evinger indicated that she arrived at the courthouse, accompanied by Beulah Evans, after working hours and slid defendants answer under the door of the circuit clerk's office. She testified that she did not receive the notice of application for default. The address to which it was allegedly mailed was the address of an attorney through whom Evinger received mail at one time. She had no explanation for her failure to receive this notice, if it was in fact delivered to the address indicated.

Evans corroborated Evinger's testimony concerning sliding an envelope under the door. She stated that she actually saw an answer on behalf of her father, defendant Journey. She did not see the answer on her own behalf. Nor did she see the contents of the envelope but she was led to believe by Evinger that the envelope contained the answers for both. Mrs. Evans also testified that her father owned no interest in Delta Drilling at the time of the incident in question and that there were other sources from which the salmonella could have come.

In closing argument, defendants urged the court to set aside the default and the judgment based on excusable neglect and the showing of a meritorious defense. They also noted the absence of "a request for a Writ of Inquiry, or a Writ of Inquiry submitted to the Court" and argued that because damages were unliquidated they had to be "proven and in a defendable amount."

At this point the court ruled, stating that it had "independent knowledge of its own that a Writ of Inquiry was conducted, testimony was taken, and the Court made considerable inquiry into the injuries of these people and their doctor's statements, etc., and felt that the amount of the damages awarded by the court were justified under the facts as I had them at that time, and I do not believe punitive damages were awarded. That was taken under advisement by the Court, to be determined at a later date, in that the Court had no knowledge of the defendants, and the motion will be overruled, denied."

Defendants filed notice appeal on April 4, 1990. A separate written order denying the motion which indicated that it was signed on April 5, 1990, was filed on April 6, 1990. This order merely recited that the motion to set aside default judgment had been heard and that the court was of the opinion that it should be denied. No findings were added with respect to excusable neglect or meritorious defense. On May 25, 1990, defendants filed a "Motion to Set Aside Void Judgment" urging the court to vacate the default judgment pursuant to Rule 60(b)(4) because there was no written application for judgment nor a hearing to determine damages as prescribed by Rules 55(b) and 40 Miss. Rules of Civil Procedure. The record does not reflect a disposition of this motion.

III

The only issue presented to this court in appellant's brief is whether the judgment may stand in the absence of record evidence supporting damages ³. Appellees argue that this issue was not raised in the trial court and that appellants are thus barred from raising it here.

Although it is true that defendants did not assign the absence of a writ of inquiry or hearing to assess damages as a ground for its motion to set aside in either its original written motion or its amended motion, they did raise that issue clearly at the hearing on the motion. ⁴ There was no objection and the trial court made findings and a ruling as to this issue. Under these circumstances we will consider the issue to be properly before us.

Miss.R.Civ.P. 55 provides in parts relevant here

(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.

(b) Judgment. In all cases the party entitled to a judgment by default shall apply to the court therefor. If the party against whom judgment by default is sought has appeared in the action, he (or if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing of such application; however, judgment by default may be entered by the court on the day the case is set for trial without such three days' notice. If in order to enable the court to enter judgment or to carry it into effect it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearing with or without a jury, in the court's discretion, or order such references as it deems necessary and proper.

Thus, prior to securing a default judgment pursuant to Rule 55(b), there must be an entry of default. Wright, Miller & Kane Federal Practice and Procedure: Civil Sec. 2682 p. 406, Official Comment to Miss.R.Civ.P. 55, p. 132 (1990). A default may be entered against any party who neglects to plead or otherwise defend. Id.

In the case at bar, as defendants never filed an answer or other response, default was properly entered by the clerk on September 12, 1988. Rule 55(b) provides that after a default has been entered, a party entitled to such judgment must apply to the court therefor. Although it contemplates that a judgment may be entered by the court upon application it further provides that where damages are left to be determined by evidence the court may conduct a hearing with or without a jury.

If the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true. Testimony need not be presented to obtain judgment by default. United States v. Borchers, 163 F.2d 347 (2d Cir.1947). See also, S.E.C. v. First Financial Group of Texas, Inc., 659 F.2d 660 (5th Cir.1981) (Rule 55(b) does not require the district court to hold either an...