Rich By and Through Brown v. Nevels, 89-CA-1121

Decision Date13 March 1991
Docket NumberNo. 89-CA-1121,89-CA-1121
PartiesWilma RICH By and Through Her Conservators Betty BROWN and Jean Jennings v. Bobbie Nell NEVELS.
CourtMississippi Supreme Court

Gary Street Goodwin, Goodwin & Goodwin, Columbus, for appellant.

James W. Kitchens, Constance L. Johnson, Kitchens & Ellis, Jackson and Ronald L. Whittington, Whittington & Burkhalter, McComb, for appellee.


PRATHER, Justice, for the Court:



This negligence case involves primarily the issue of whether the trial judge abused his discretion in denying a motion to set aside a default judgment. This Court affirms--with the exception of the damages award of $180,000. The award is vacated and the issue remanded because the record is devoid of evidentiary support.


On October 16, 1984, an individual burglarized a boarding house 1 in Jackson and violently attacked one of the elderly residents Bobbie Nevels. On July 16, 1987, Nevels filed a complaint in the Hinds County Circuit Court against the owner of the house, Wilma Rich, for her alleged negligence in failing "to provide appropriate and necessary security to assure the reasonable protection of the ... residents." Nevels claimed that she sustained "grievous physical injuries, pain and emotional distress, all of which required and continues to require medical and psychiatric care." Nevels "demanded" $250,000 in actual damages and $250,000 in punitive damages.

Rich subsequently received a summons from Nevels on July 27, 1987; however, she wholly failed to respond. Thus, on December 9, 1987, Nevels moved for and secured an entry of default. Six months later, on June 6, 1988, Nevels filed a motion for default judgment. On August 12, 1988, Judge Charles Barber held a hearing, granted the motion, and awarded Nevels $180,000. Judge Barber entered the final judgment on August 15.

On June 20, 1989, Nevels filed a "Motion for Examination of Judgment Debtor"; the next day, Judge Barber granted the motion. Finally, on July 14, 1989--over two years after Nevels filed her complaint and nearly one year after Barber granted the motion for a default judgment--Rich responded. Actually, Betty L. Brown and Jean Jennings filed a motion on Rich's behalf asking that the service of process be quashed or that the default judgment be set aside. (Brown and Jennings are relatives of Rich and were appointed her conservators only two days prior to their filing of the motion.)

Specifically, the conservators contended that the summons contained a misnomer--i.e., it incorrectly identified Wilma Rich as "Wilma Ritchie." The conservators nonetheless conceded that the sheriff "in fact served" Rich. The conservators added that, although Rich was served, she "was thoroughly incompetent to have any meaningful understanding of the process that had been served upon her."

Alternatively, the conservators contended that "reasonable and valid grounds" exist for "setting aside the default judgment." They based this contention on Rich's "medical condition, age, thorough ignorance of the summons, and thorough ignorance to notify other family members of [the] summons served upon her." And they explained that a "defense to the merits of [Nevels'] claim" exists and that "no prejudice [would] be suffered by [Nevels] if the default judgment is set aside."

The trial judge held a hearing and denied the conservators' request. (The judge also ordered that all instances of "Wilma Ritchie" found in the dockets and minutes of the court be amended to reflect her correct name, "Wilma Rich.")

The conservators appealed and presented two issues:

(1) Whether the service of process should have been quashed and default judgment set aside because Nevels incorrectly identified Rich on the summons as "Ritchie?"

(2) Whether the default judgment should have been set aside?


A. Whether Service of Process Should Have Been Quashed?
1. The Parties' Contentions

The conservators' one-page argument regarding this issue is simple. They contend that Rich has no recollection of being served; therefore, she may have been misled by the misnomer.

Nevels counters that, indisputably, Rich received a summons and that her alleged lack of "recollection" due to alleged incompetency is unproven. Nevels adds that case law is supportive of the trial judge's refusal to quash the service of process and his order to amend all instances of "Wilma Ritchie."

2. Dispositive Law

Southern Trucking Serv., Inc. v. Mississippi Sand & Gravel, Inc., 483 So.2d 321 (Miss.1986) is dispositive of the issue. In Southern Trucking, the issue was one of first impression, so this Court considered the various views espoused by other jurisdictions.

In sum, this Court decided to reject the admittedly harsh minority view which holds that a misnomer should mean the death-knell of a case. Id. at 323 (citing case law from other jurisdictions). This Court instead adopted the "general view" which holds that a misnomer is not fatal so long as the incorrectly-identified party knew what was meant. Id. (citing Bank of America v. Superior Court for Los Angeles County, 35 Cal.App.3d 555, 110 Cal.Rptr. 709, 710 (1973) (bank "knew at all times the case it had to meet" despite the misnomer). Thus, "an amendment correcting a misnomer is permissible at any time or any stage in the proceedings." Id. at 324 (citing 67A C.J.S. Parties Sec. 172); see also Donald v. Luckie Strike Loans, Inc., 148 Ga.App. 318, 251 S.E.2d 168, 169-70 (1978). "When a judgment is amended, it is as though the entire action had been conducted in the correct name of the [party]." Southern Trucking Serv., Inc., 483 So.2d at 324.

In sum, under Mississippi law, an amendment is permitted so long as the evidence does not suggest that the misnomer "misled the parties into thinking that another [party] was meant." Id. (quoting Cigan v. St. Regis House Hotel, 72 Ill.App.3d 884, 29 Ill.Dec. 38, 41, 391 N.E.2d 197, 200 (1979).

3. The Law Applied to the Facts

In the case sub judice, no one disputes that Rich received a summons. The conservators simply explain that Rich didn't "remember anything about it" and that she was possibly misled by the misnomer or was not sufficiently competent to appreciate the consequences of her failure to respond. Record Vol. II, at 83. This explanation proved unpersuasive with the trial judge:

There are several things that are requested, and I'm going to take them one by one as they were requested. The first thing that the Movant [the conservators] requested on behalf of Mrs. Rich was that the original process be quashed, and in determining whether or not the original process should be quashed I looked at two things: First is the summons itself in regards to the misnomer. Second, I looked at your argument as to the service. Now, in looking at the summons itself which, of course, is part of the court record, I basically was attempting to determine whether or not a person would have known they were being sued even though the name did not properly appear on the summons.

The name which appears on the summons is Wilma Ritchie, R-I-T-C-H-I-E. In this case the actual name of the ward is Wilma Rich. The address is correct. The return is made by Deputy Gray, as he testified, and in accordance to his testimony he asked whether or not the person that answered the door was, in fact, Wilma Ritchie, and he certifies that he did hand deliver a copy to a Wilma Ritchie at this address. Then after looking at the summons in reviewing the complaint allegations set forth dealing with the same address, the same dates that everyone discussed, and I do find that although there is a misnomer in regards to the complaint and the summons, the same was sufficient to notify a reasonable person that they were being sued.

In regards to the service I have a lot of problems with placing a burden on the Plaintiff to determine whether or not a Defendant is competent prior to the service of a process when there is no prior finding that a Defendant was in fact incompetent. So I am going to find that the service of process in this case was proper.

The next thing that is requested by [the] conservators for Mrs. Rich is that the execution of process issued and served on the ward be quashed; this being the same, however, it is set out, Wilma Ritchie a/k/a Wilma Rich. I'm going to deny this request for the same reasons as set forth above in regards to the request that the other process be quashed, the original process be quashed.

Id. at 162-64.

4. Disposition

This Court concurs in this decision; the misnomer should not be deemed fatal. The record and appellant's brief are devoid of any evidence proving that the misnomer misled Rich. Most notable is Nevels' failure to claim during her testimony that the misnomer actually misled her; instead, she merely conceded that "she don't remember anything about [being served]." Rich admitted that she knows Nevels and remembers the attack; thus, it seems more likely than not that she understood the summons since it correctly identified Nevels as the "complainant." The process server, Deputy Ralph Gray, testified that Rich acknowledged she was indeed the individual named on the summons. According to Deputy Gray, Rich "acted normal" when he served her. And although several of Rich's family members testified that she was probably incompetent at the time, they did not seek to establish a conservatorship until 1989--years after Rich received her summons. Id. at 45.

In sum, the evidence does not support the conservators' claim that the slight misnomer misled Rich. The judge's decision does not reflect an abuse of discretion and, therefore, this Court affirms.

B. Whether the Default Judgment Should Have Been Set Aside?

This issue is two-fold; it questions the propriety of the default judgment itself and the propriety of the damages award of $180,000.

1. Propriety of Denial of Motion to Set...

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