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02/24/98 JOHN L. LOPER v. REGINA LOPER

JOHN L. LOPER, APPELLANT
v.
REGINA LOPER, APPELLEE



DATE OF JUDGMENT: 08/15/96 TRIAL JUDGE: HON. MARCUS D. GORDON COURT FROM WHICH APPEALED: NEWTON COUNTY CIRCUIT COURT

Before: McMILLIN, P.j., Diaz, And Herring, JJ.

The opinion of the court was delivered by: Herring, J., For The Court:

NATURE OF THE CASE: CIVIL - OTHER

TRIAL COURT DISPOSITION: DISMISSED THE CASE

DISPOSITION REVERSED AND RENDERED - 2/24/98

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

John L. Loper appeals to this Court from a final order of the Circuit Court of Newton County, Mississippi, which denied Loper's application for a default judgment and dismissed Loper's complaint against his wife in which he charged her with malicious prosecution, false arrest, damage to reputation, and attorney's fees. Regina Loper made no appearance and filed no brief in opposition to the appeal filed herein. We conclude that the trial court abused its discretion in denying John Loper's application for a default judgment. Accordingly, we reverse and render.

A. THE FACTS

John L. Loper filed this action against Regina Loper in the Circuit Court of Newton County, Mississippi, on February 23, 1996. The parties were legally married at the time, although they were separated, and divorce proceedings were pending. The Appellant alleged that Mrs. Loper had maliciously brought false criminal charges against him which were later dismissed and that he had been falsely arrested and detained as a result of the charges. Mr. Loper further asserted that Mrs. Loper committed perjury in falsely signing an affidavit and charging him with burglary when she knew the charges were false. As a result of Mrs. Loper's actions, Mr. Loper alleged that he had suffered mental and physical anguish and embarrassment and that the criminal charges caused his reputation to be permanently damaged. Thus, he sought $3,000,000 in actual and punitive damages, together with all costs of court. He also sought attorney's fees incurred to defend himself against the charges brought against him.

Regina Loper was properly served with alias summons and a copy of the complaint on March 26, 1996. Thereafter, on July 29, 1996, the Appellant filed a "Request For Default," accompanied by an affidavit by the Appellant's counsel, which requested the Circuit Clerk of Newton County, Mississippi, to enter a default against Regina Loper pursuant to the provisions of Mississippi Rule of Civil Procedure 55(a). The clerk duly entered his default against Mrs. Loper on that same day. The Appellant then simultaneously filed his application requesting the circuit court to "hear the matter on the merits and enter Final Judgment" in favor of Mr. Loper against Mrs. Loper. No certificate of service was attached to this application indicating that notice of the application for a final judgment was given to Mrs. Loper. However, there is nothing in the record to indicate that Mrs. Loper ever appeared in the action by filing an answer to the complaint or otherwise, either pro se or by representative. A brief hearing was conducted without a jury by the circuit court in these proceedings on August 15, 1996. This hearing was apparently conducted without notice to Mrs. Loper because there is no indication in either the pleadings or the testimony that such notice was ever given.

Mr. Loper was the only witness called to testify at the August 15, 1996, hearing. He stated that after he separated from his wife, he returned two months later to the marital home at a time when he knew Mrs. Loper would not be present and confiscated items within the home which he believed to belong to him. He entered the house, with the use of his house key, through the front door, and took a television set, a VCR, a microwave oven, and clothes. When Mrs. Loper discovered that he had taken these items, she charged Mr. Loper criminally with "breaking and entering and theft of a dwelling." While he was never "locked up," Mr. Loper was taken into custody by the sheriff's department and was required to make bond in the sum of $5,000. According to the testimony, he made a property bond with the help of his employer and paid a $25 bond fee. The criminal charges against Mr. Loper were later dismissed.

In regard to the damages suffered by the Appellant as a result of the criminal charges brought against him, Mr. Loper stated that he was required to hire an attorney who charged him $3,000 to represent him in the divorce case against his wife and to also represent him in the criminal action filed against him. Mr. Loper also stated that he "missed a lot of work" because he had to go before the grand jury. He stated that his salary at work fluctuated, depending upon the number of hours he worked. He stated that his salary was "probably around eighty or a hundred dollars a day." Moreover, Mr. Loper estimated that he probably lost "six or seven" days from work as a result of the charges brought against him. In summary, the other damages suffered by Mr. Loper included (1) detention and "a lot of lost sleep;" (2) attorney's fees, the exact amount of which he could not establish; (3) humiliation as a result of ...


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