McCain v. Dauzat, 2000-CA-00355-SCT.

• Decision Date: 09 August 2001
• Docket Number: No. 2000-CA-00355-SCT.,2000-CA-00355-SCT.
• Citation: 791 So.2d 839
• Court: Mississippi Supreme Court
• Parties: Bob McCAIN d/b/a McCain's Tree Service of Gulfport and Vicksburg, Mississippi v. Kenneth L. DAUZAT.

791 So.2d 839

Bob McCAIN d/b/a McCain's Tree Service of Gulfport and Vicksburg, Mississippi v. Kenneth L. DAUZAT.

No. 2000-CA-00355-SCT.

Supreme Court of Mississippi.

August 9, 2001.

Alben N. Hopkins, Thomas A. Waller, Robert E. Briggs, Gulfport, for Appellant.

James L. Farrior, III, Pascagoula, for Appellee.

Before PITTMAN, C.J., DIAZ and EASLEY, JJ.

DIAZ, Justice, for the Court:

¶ 1. On August 28, 1997, Kenneth Dauzat (Dauzat) filed suit against Bob McCain, d/b/a McCain's Tree Service of Gulfport and Vicksburg, Mississippi (McCain), in the Circuit Court of Harrison County, First Judicial District. The complaint alleged that Dauzat was injured by a flying wood chip while working for McCain and operating a mechanical wood chipper. In addition, Dauzat alleged that the machine was unsafe lacking any protective guards and that McCain had instructed him not to wear face and eye protection because they would hinder productivity. Furthermore, Dauzat contended that McCain was required to carry workers' compensation insurance and did not. As such, Dauzat sought $250,000 in compensatory damages and an additional $250,000 in punitive damages.

¶ 2. Although McCain denies being served, the proof of service indicates that a summons and copy of the complaint were personally served on McCain by James Moran, Jr., on September 5, 1997. After receiving no reply, Dauzat applied for an entry of default which was duly filed by the court clerk on October 27, 1997. Also on October 27, Judge Whitfield entered a default judgment against McCain. A hearing on a writ of inquiry was convened on October 31. At the conclusion of that hearing, the trial judge entered a judgment in favor of Dauzat in the amount of $175,000 for compensatory damages and $500,000 as punitive damages. Dauzat filed a motion for judgment debtor exam on March 2, 1999. McCain was served with the motion on March 18, 1999 and, this time, chose to take action. On April 7, 1999, McCain filed a motion to set aside the default judgment. A hearing on that motion was held on February 7, 2000. There exists some controversy over whether McCain's attorney requested a record of the hearing; in any case, there is not one available for review by this Court.

¶ 3. The parties prepared a statement of the evidence and proceedings pursuant to Miss. R.App. P. 10(c) which summarizes the testimony presented at the hearing as well as the objections leveled by each party. However, certain areas are strikingly absent or underdeveloped. In addition, both parties briefs indicate that McCain acted in a brash and disrespectful manner at the hearing and that in answer to this behavior Judge Whitfield ended the hearing prior to its conclusion. On February 7, 2000, the trial court entered its order denying the motion to set aside the default judgment. It is from this denial of his motion that McCain appeals. McCain contends (1) that the default judgment is void as he was never served with process, (2) that the trial court abused its discretion by failing to apply the proper standard in reviewing and in refusing his motion, (3) that the compensatory damage award is excessive and unsupported by the evidence, and (4) that the punitive damage award is invalid and unsupported by the record.

FACTS

¶ 4. Since this appeal deals with the propriety of a default judgment and the ruling on a motion to set aside, the operative facts are those stated above. Any facts germane to any portion of the discussion will be set forth when that issue is considered.

DISCUSSION

¶ 5. When reviewing the denial of a motion to set aside a default judgment, we will disturb the ruling where the trial court has abused its discretion. Guaranty Nat'l Ins. Co. v. Pittman, 501 So.2d 377, 388 (Miss.1987). "To be sure, default judgments are not favored and trial courts should not be grudging in the granting of orders vacating such judgment where showings within the rules have arguably been made." Id. at 387-88 (citing Bell v. City of Bay St. Louis, 467 So.2d 657, 666 (Miss.1985)). However, the determination is still clearly within the trial judge's sound discretion.

I. WHETHER THE DEFAULT JUDGMENT IS VOID AS A MATTER OF LAW FOR INSUFFICIENT SERVICE OF PROCESS.

¶ 6. McCain first asserts that the default judgment entered against him is void as a matter of law because, as he claims, he was never served a summons and copy of the complaint. In support of this allegation, McCain points to his testimony during the hearing on the motion to set aside in which he stated that he had never been served and knew nothing of the legal actions against him until he received notice of the judgment debtor's examination. In addition, McCain asserts that his quick actions upon being served with that notice indicate the seriousness with which he treats such matters.

¶ 7. A court must have jurisdiction, proper service of process, in order to enter a default judgment against a party. Arnold v. Miller, 26 Miss. (4 Cushm.) 152, 155 (1853). Otherwise, the default judgment is void. Id. If a default judgment is void, the trial court has no discretion and must set the judgment aside. Sartain v. White, 588 So.2d 204, 211 (Miss.1991). McCain argues that is precisely the situation in the present case.

¶ 8. In essence, McCain asks this Court to take his word that he was not served over the trial judge's opinion and evidence to the contrary. The trial judge listened to McCain's story and stated that he "did not believe a word that McCain had said." Furthermore, we have held that a return of process is presumed to be correct, and McCain did nothing to shake this presumption. Pointer v. Huffman, 509 So.2d 870, 872 (Miss.1987). Also, Moran, the process server, executed a sworn affidavit in further support of the sworn return of process form. In rebuttal, McCain's brief argues that he was not able to cross-examine Moran and should, therefore, be given the benefit of the doubt. Unfortunately, McCain had every right and opportunity to subpoena Moran and failed to do so. As with answering a summons, "the law favors the diligent and is against the careless...." Southwestern Sur. Ins. Co. v. Treadway, 113 Miss. 189, 196, 74 So. 143, 145 (1917). Finally, Dauzat points out that the notice of the judgment debtor's examination was personally served on McCain at the same address as the original summons and complaint without any problem or objection. McCain admitted that if anybody was served at that address, it must have been him. Therefore, the trial judge did not abuse his discretion in holding that service of process was proper.

II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO APPLY THE PROPER METHOD OF REVIEW IN EVALUATING A MOTION TO SET ASIDE A DEFAULT JUDGMENT AND BY REFUSING TO SET ASIDE THE JUDGMENT IN THIS CASE.

¶ 9. McCain asserts that the trial court abused its discretion in refusing to set aside the default judgment or, at least, in failing to apply the proper test in evaluating the motion to set aside. He contends that default judgments should be set aside liberally and that past holdings of this Court support such an idea. McCain further prays that even...