IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2013-CA-00131-COA MITCHELL P. SMITH AND HORACE HOYT SMITH APPELLANTS

v. FIRST BANK, CHRISTOPHER A. FERRELL, CYNTHIA FERRELL, JAMES FERRELL AND CHRISTOPHER B. FERRELL, A MINOR, AND CHRISTINA FERRELL, A MINOR BY AND THROUGH THEIR MOTHER AND NEX T FRIEND, CYNTHIA FERRELL APPELLEES

DATE OF JUDGMENT: 11/04/2011 TRIAL JUDGE: HON. DAVID H. STRONG JR. COURT FROM W HICH APPEALED: LINCOLN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: W

. BRADY KELLEMS JOSEPH PRESTON DURR CHELI KELLEMS DURR ATTORNEYS FOR APPELLEES: DENNIS L. HORN JARROD W ATKINS TAYLOR SHIRLEY PAYNE JOHN DENVER FIKE NATURE OF THE CASE: CIVIL - PERSONAL INJURY TRIAL COURT DISPOSITION: DENIED APPELLANT’S MOTIONS TO SET ASIDE AND VACATE JUDGMENT AND FOR REHEARING AND TO ALTER THE JUDGMENT DISPOSITION: AFFIRMED: 04/28/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND ISHEE, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. This Court considers a challenge to the c ircuit court’s decision to uph o l d a def ault judgm ent and related orders. W e f ind no error and af

f irm

.FACTS

¶2. In 2004, Christopher and Cy nthia F e r r e ll bought a hom e in Lincoln County

. They

m oved i n the hom e with their c hildren: Jam es, Christina, Christopher B. (“Bubba”), and
Marna. ¶3. On A p ril 29, 2006, several of the Ferrells were injured when a f ight started on neighboring property

owned by

Mitchell P. Sm ith. ¶4. On April 2 6, 2007, the Ferrells f ile d a com

p laint f or dam ages against Mitchell,
Horace Hoy

t Sm ith (Mitchell’s f

at h e r ) , and several o thers. T h e Ferrells personally served
process on H orace on April 27, 2007. Mitchell could not b e located, and he was dism issed f rom this action. However, Horace did not r espond, and a def ault was entered against him on Septem

ber 6, 2007. ¶5. On January 22, 2 0 09, the Ferrells f iled another c o mp l a i n t b a sed on t he sam e f acts. This tim e, the Ferrells s e rved Mitchell with process through his nineteen-y ear-old son, Brandon. Thereaf

ter, the Ferrells f

iled a m otion to consolidate the two actions. The circuit court granted the m otion on October 21, 2010. ¶6. On May 9, 2011, this case went to t rial. Neither Mitche l l n o r H o r a c e a p peared to def end him self

. The circuit court entered a def ault judgm ent against Mitchell and Horace, in the sum

of $917,000. ¶7. On J u n e 1, 2012, First Bank received a writ of garnishm e nt on M itchell’s account. Thereaf ter, t he b ank m istakenly told Mitchell that he could withdraw all of his m oney f rom

2his account. Mitchell acted on this inf orm ation and with d r e w all of his m oney f rom First Bank. ¶8. On August 23, 2012, Mitchell and H orace f il e d t heir m otions to set aside the judgm ent. The circuit court f ound “that both Mitchell and [ Horace] have c o lorable def enses, and that had they def

ended these claim s at trial, as i t was their right to do, t he outcom e m ight have been substantially dif f e rent.” However, af

ter weighing the relevant f actors, the circuit

court ruled that the def

ault judgm ent against Mitchell a nd Horace should stand. Their m otion

was denied. In addition, M i tchell w as ordered to return the f unds that he withdrew f

rom First Bank. It is f

rom this judgm e nt that Mitchell and Horace now appeal.

ANALYSIS ¶9. On de novo review, t h i s C ourt m ust f irst d eterm ine whether t he judgm ent is void because of insuf

f icient service of process. Fletcher v. L imeco Cor p
. , 9 9 6 So. 2d 773, 776 (¶8) ( Miss. 2008). “A court m u st have jurisdiction, proper service of process, i n order to

e n t e r a d e f

a u lt judgm e nt a gainst a party

. O therwise, the def ault judgm ent is void. If a def ault j udgm e nt i s void, the trial court has no discretion and m ust set the judgm ent aside.” McCain v. Dauzat , 791 So. 2d 839, 842 (¶7) (Miss. 2001) (internal citations om itted). ¶10. Once the procedural issues are satisf ied, we a pply an abuse-of

-discretion standard of review to t he circuit court’s decision on a m o tion to set aside a def a ult judgm ent. Am. States
Ins. C o. v. Rogillio , 10 S o. 3d 463, 467 (¶8) (Miss. 2009). “[ W ]here there is a reas o n a ble doubt as t o whether or not a def a u l t judgm ent should b e vacated, t he d oubt should be

3resolved in f avor of opening the judgm e nt and hearing t he case on its m erits.” I d. (quoting McCain , 791 So. 2d at 843 (¶10)).
I. W hether service of process was proper. A. Horace – Service of Process ¶11. Horace argues that h e n ever received service of process and p oints to a def ect on the f ace of the “Return.” The def e ct is the placing o f his nam e , “ H o r a c e S mi t h,” where the

mo n t h , “April,” should be. According to Mississippi R ule of C ivil Procedure 4(f ), the

“ [ f ] a i l u r e t o m ake p roof of service does not af f ect t he validity of service.” However, the absence of som e proof of the receipt of a sum m ons m akes the n otice questionable. Mansour v. Charmax Indus. Inc. , 680 So. 2d 852, 854 (Miss. 1996). ¶12. Here, even though the return did not p roperly state the date of p rocess, there w as proof of the s ervice of process on Horace. Accordingly , w e f ind t hat the r ecord includes suf f icient evidence to indicate that Horace was properly served with process.
B. Mitchell – Service of Process ¶13. Mitchell asserts that the Ferrells f ailed t o com

ply with the service requirem ents of Mississippi Rule of Civil Procedure 4. He claim s that they did not u se reasonable diligence in serving personal process b ef ore using s econdary service. Also, Mitchell claim s that the
p rocess server did not leave the sum m o ns at his abode. And, even if i t was h i s a b o d e , t h e relative locate d on the lawn outside of the house could not receive service under Rule 4 because that relative did not live there.

4¶14. According to Rule 4(d)(1)(B),

if service under subparagraph (1)(A) of this subdivision cannot be m ade with reasonable diligence, by leaving a copy of the sum m ons and com plaint at the def endant’s usual place of abode with the d e f e n d a n t ’s spouse or som e other person of the d ef

endant’s f am ily above the age of sixteen y ears who is willing to receive service . . . . ¶15. In 2007, the Ferrells a ttem pted to serve Mitchell personally on a separate lawsuit based on the sam e f

a cts. At t hat tim e Mitchell was out of the country

. The Ferrells could not locate Mitchell, and the circuit court dism issed him f rom the lawsuit. ¶16. In 2009, the Ferrells tried to personally serve Mitchell in a second action based on the

sam e f acts. The process server, Gary W indham , went to the address of M itchell’s house and f ound Mitchell’s nineteen-y ear-old s on, Brandon, at that address. Mitchell w as n o t available. W indham

then lef t service of

process with Brandon. ¶17. According to McDaniel v. Burroughs , 7 39 So. 2d 4 61, 463 ( ¶6) ( Miss. Ct. A pp. 1999), af ter t he process server i s unable to locate the pa r t y , i t i s p roper to l eave sum m ons with a f am ily m em

ber over the age of sixteen. I n McDaniel , “service o f process was attem pted on McDaniel[ ] at h is usual p lace of abode. Af t e r t h e p rocess server was unable to locate McDaniel, he lef

t a copy of the sum m ons a nd com plaint with McDaniel’s wif e.” Id

. Accor d i n g l y , w e f

i nd t he Ferrells used reasonable diligence bef ore leaving process with Mitchell’s son, Brandon. ¶18. However, Mitchell argues that the house located at the address was not his usual place of abode. In Alpaugh v
. M oore , 5 68 So. 2d 291, 293 (Miss. 1990), “a person’s ‘usual place

5of abode’ is the place the person is actually living at the tim e when the service o f p rocess is

m ade.” (Ci t i n g Hendricks v. Kellogg , 116 Miss. 2 2, 76 So. 7 46 (1917); 62B Am

. Jur. 2d
Process § 208, at 911 (1990)). ¶19. At the tim e of process in January 2009, M itchell claim ed t o be overseas. He testif ied that when he returned f

rom o verseas, i n February 2009, he s t ay ed at his house. Specif ically he stated, “I com e to town. I go back. I don’t ever leave the house again.” ¶20. Mitchell later testif ied that he d i d n o t l i ve in the house f rom August 2008 to about April o r May of 2009. Instead, he testif ied that he lived in a trail er l ocated along his driveway to his house. He contends the trailer was his abode at the tim e of service. ¶21. To show he was not living in the house, Mitchell presented evidence that the house

was burglarized and vandalized in August 2 008. He claim ed to be living in the trailer until the r enovations on t he house were com pleted. However, af

ter reviewing the r ecord, we f ind that there was suf

f icient evidence to support the circuit court’s decision that the house was Mitchell’s usual place of

abode. ¶22. Finally , Mitchell argues that B randon did not l ive at the house. He claim ed that Brandon lived i n a trailer located at the sam e address as the house. Here, we f ind Brandon

was “som e other person of the def endant' s f am ily above the age o f sixteen y ears who [ was]

w i l l i n g to receive service

. . . .” M.R.C.P. 4(d)(1)(B). Theref ore, we f ind there was suf f i cient evidence to s upport the circuit court’s f inding th a t M i tchell was properly with
process.

6II. W hether the default judgment should be set aside. ¶23. The suprem e court discussed the standard f or reviewing def

ault judgm ents: This Court reviews the trial court’s decision on a m otion to set aside a def a ult judgm ent under a n abuse o f discretion standard. D ef ault judgm ents are not f avored in t he law. If reasonable doubt exists as to w hether a def ault j udgm ent should be vacated, “the doubt should be r esolved in f a v o r of o pening the j u d g m ent and hearing the case on its m e r its.” However, the party seekin g relief f rom the def

ault judgm ent is not entitled to r elief as a m atter of right, and this Court will only reverse the trial court where it has abused its discretion.
W oodruff v. Thomas , 143 So. 3d 546, 552 (¶11) (Miss. 2014) (internal citations om itted). ¶24. W h en a c ircuit c ourt considers a Mississippi Rules of Civil Procedure 60(b) m otion

to set aside a def

ault j udgm e nt, it m

ust w eigh: “ (1) the nature and legitim acy of the def endant’s reasons f

or his def ault

. . . , (2) whether the def endant i n f

a c t h a s a colorable def ense to the m erits of the claim , and (3) the nature and extent of prejudice which m ay be suf f e red b y the plaintif

f if t he def

ault is set aside.” McCain , 7 91 So. 2d at 843 (¶10). Here, the circuit court weighed each f actor in m aking its ruling. A. Nature and Legitimacy of the Reason for Default ¶25. The circuit court began with a review Mitchell’s and Horace’s reasons f o r def ault. The circuit c ourt f

ound that the Ferrells properly served Horace and Mitchell with process. In addition, both Horace and Mitchell provided no good c ause f o r f a i l i n g to answer the

com plaint. However, “procedural m i s-steps

. . . , which are grounds f or f i n d i n g t he f

irst f actor in the def

ault analy sis against [ a p arty ], are not s u f f icient by t hem s elves to perm it the upholding of t h e trial court’s d enial of the m otion to set aside the def ault.” A m. Cable Corp.

7v
. T

r i l o g y C o m mc'n Inc. , 754 So. 2d 545, 556 (¶44) (Miss. Ct. App. 2000). W e f ind th i s prong weighs in f

avor of the F e r r ells. Nevertheless, we m ust still consider the other two
prongs. B. Colorable Defense ¶26. As to the c olorable-def ense prong, courts have d eterm i ned that this f actor “outweighs the other two, and we h ave e ncouraged trial courts to vacate a def ault judgm ent w here ‘the def endant has shown that he has a m eritorious def ense.’” Allstate Ins. C

o. v. Green , 794 So. 2d 170, 174 (¶9) ( Miss. 2 001) (citing Bailey v. G a. Cotton Goods C o. , 543 So. 2d 180, 182 (Miss. 1989)); see also Flagstar Bank FSB v. Danos , 46 So. 3d 298, 307 (¶32) (Miss. 2010) (m ost im portant f actor is the colorable-def

ense prong). ¶27. Here, the circuit court f ound: [ T]he def endants put on considerable testim ony that neither Mitche l l n o r [ Horace] [ w as] involved in the party o r the f ight, that neither M itchell n or [ Horace] provided alcohol to the m inors at the party , and t hat n either Mitchell nor [ H o r a c e ] [ w a s] involved in the f ight in any way . In f

act, the c o urt is convinced that both Mitchell and [ H orace] have colorable def enses, and that had they def

ended these claim s at trial, as it was their right to do, the outcom e m ight have been substantially dif f e r ent. W e f ind the circuit court di d not abuse its discretion in f inding a s t rong colorable def ense. H o wever, while a colorable def ense is the s trongest f

a ctor, p rejudice to the plaintif f m a y prevent a def

ault judgm ent f

rom being vacated. Guar. Nat’l Ins. C o. v. Pittman , 501 So. 2d 377, 388 (Miss. 1987). Theref ore, we m

u st still c onsider the p rong of prejudice t o the plaintif f s.

8C. Nature and Extent of Prejudice to the Plaintiffs

¶28. The third prong of the balancing test is “the nature a nd extent of prejudice which m ay be suf f ered by the plaintif

f if the def ault is set aside.” McCain , 791 So. 2d at 843 (¶10). ¶29. Here, the circuit court f ound: The t hird pron g . . . weighs against the def endants. Here, the d am age was inf licted over f

ive y ears ago, the lawsuit has b een litigate d f o r f ive y ears, Brandon Sm i th, a key witness is now deceased, and unable to testif y , and the plaintif f s f ollowed the rules of civil procedure in attem pting to f ile and serve the lawsuit. For t hese reasons, the court f inds that sett ing a s ide the def a ult judgm ent would result in substantial prejudice to the plaintif f s. As a r esult, the circuit court’s decision was b ased prim arily o n the f i nding t hat setting aside def ault judgm ent would cause the Ferrells substantial prejudice. “The f act that ‘the injured plaintif f is without a resolution to her claim f or that period o f tim e [ i.e., the period of delay caused by the def

e ndant’s d e f

ault]’ constitutes prejudice.” Rogillio , 1 0 So. 3d at 472 (¶23). ¶30. W e agree with the circuit court. M i t c h e l l a n d Horace had y ears to respond af ter receiving service of process. Also, af t er Mitchell becam e aware of the f inal judgm ent against him in Novem

ber 2011, he still did not take any action until over nine m onths later. ¶31. Recovery under Rule 60(b)(6) “is reserved f or e xce p t i o n a l and com pelling circum stances. It m

ust be based on som e other reason than t he f irst f ive clauses, and it m

ust be som e ground which will justif y relief f rom the f inal judgm ent.” Bryant Inc. v. W alters , 493 So. 2d 933, 9 39 (Miss. 1 9 86). Mitchell and Horace present n o exceptional or com pelling circum stances. ¶32. Theref

ore, af ter reviewing the record and relevant f actors, we f

ind the circuit court

9did not abuse its discretion when it denied the m otion to set aside the def ault judgm ent. III. Wh e t h e r M

i t c h e l l s h o u l d r e t u r n m i s t a kenly released funds to Firs t Bank. ¶33. Af ter the court entered a d ef

ault judgm ent against Mitchell, F irst B ank received a writ of execution f

o llowed b y a writ of garnis h m ent. Once the b ank received the writ of garnishm e nt, t h e circuit court dism issed the writ of execution. Upon the dism issal of the writ of execution, the bank called Mitchell and told him that he could withdraw his m oney f rom his account. Af

t er being i nstructed by the bank, Mitchell withdrew a ll of his m oney , totaling $19,537.26. ¶34. At the hearing to set aside the def aul t j u d gm ent, the bank asked the circuit court to order Mitchell t o return the m oney t o a v o i d u n j ust enrichm ent. Unjust enrichm ent was addressed in Dunn v. Dunn , 853 So. 2d 1150, 1153-54 (¶12) (Miss. 2003): Money paid to a nother by m istake o f f a ct, al though such m istake m ay have been caused by pay or’s negligence, m ay be recovered f ro m t h e person to whom it was p aid, i n an action f or m oney had and received. The ground on which recovery is allowed is that one receiving m o ney paid to him b y m istake should not be allowed to e nrich him self at the expense of

the party who paid the m on e y t o h i m b y retaining it, but i n equity and good conscience should r e f u n d it. In order that this rule m ay apply , the party to whom the p a y me n t m istake was m ade m

u s t be lef t in the sam e s ituation a f

ter he ref unds i t a s he would have been lef

t had the pay

m ent not been m ade. ¶35. Ultim ately , the circuit court ruled that the d ef a u l t judgm ent against M itchell and
Horace should stand. Upon this holding, t he circuit c ourt ordered Mitchell to return t h e withdrawn f

unds to the bank and ordered the bank to release the f unds to the Ferrells. ¶36. W e f

ind First Bank unjustly enriched Mitchell. Theref ore, M itchell mu s t r epay the

10bank the f

ull am ount pursuant to the circuit court order. CONCLUSION ¶37. Upon reviewing the r ecord, we f ind both Mitchell and Horac e r e c e ived service of
process. Further, the c ircuit court did not abuse its discretion w hen it ref used to set aside the def ault judgm ent. For t hese reasons, the c i r c u i t c o u rt’s d ecision to uphold the def ault judgm ent and related orders is af f irm ed. ¶38. THE JUDGMENT OF THE LINCOLN C OUNTY C I R C UIT C OURT IS AFFIR M E D. ALL COSTS O F THIS APPEAL ARE ASSESSED TO THE APPELLANTS. LEE, C.J., IRVING, P.J., B ARNES, I SHEE, R OBERTS, CARLT ON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

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