April 21, 2015
TAMMIE J. CROSSLEY, JOHN TEMPLET, JR. AND XL PUBLIC ADJUSTERS, INC. A MISSISSIPPI CORPORATION, APPELLANTS
CHRISSI D. MOORE, INDIVIDUALLY AND AS SHAREHOLDER OF AND FOR AND ON BEHALF OF XL PUBLIC ADJUSTERS, INC., APPELLEE
[Copyrighted Material Omitted]
FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT. TRIAL
JUDGE: HON. D. NEIL HARRIS SR. TRIAL COURT DISPOSITION:
DENIED APPELLANTS' MOTION TO SET ASIDE DEFAULT JUDGMENT
BUT GRANTED THEIR MOTION TO SET ASIDE JUDGMENT DETERMINING
AMOUNT OF DAMAGES; ENTERED NEW DAMAGE AWARD IN THE AMOUNT OF
APPELLANTS: OLIVER E. DIAZ JR., DAVID NEIL MCCARTY, JONATHAN
APPELLEE: H. BENJAMIN MULLEN.
LEE, C.J., BARNES AND MAXWELL, JJ. LEE, C.J., GRIFFIS, P.J.,
BARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR.
IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART AND
DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.
This is not a direct appeal of a judgment. Instead, it is an
appeal of a Rule 60(b) motion, which the chancellor denied in
part and granted in part.
The chancellor denied Tammie J. Crossley and John Templet
Jr.'s request to set aside a default judgment entered
against them. This default judgment resulted from their
answer and counterclaim being stricken as a sanction for
their prolonged failure to respond to discovery. While
Crossley and Templet ask us to review the merits of the
chancellor's decision to sanction them by striking their
pleadings, procedurally we cannot. Our sole task on an appeal
of the denial of a Rule 60(b) motion is to ask whether the
denial was an abuse of discretion--not review the merits. And
because the record reflects the default judgment was not
entered in violation of Crossley and Templet's
due-process rights, we find the chancellor did not abuse his
discretion when he refused to set the judgment aside.
The chancellor did, however, grant Crossley and Templet's
request to set aside the amount of damages awarded and
conduct a new hearing. So we do consider the merits of the
new damages award. While Crossley and Templet challenge the
amount of the $267,853.67 award as being purely speculative,
given our deferential standard of review, we find no reason
to reverse. The standard for damages is " reasonable
certainty,"  not perfection. So even though some
of the damages awarded were based on estimates and projected
figures, the chancellor found these estimates were reasonable
in light of
Crossley and Templet's continued failure to give the
plaintiff, Chrissi D. Moore, the discovery she had requested
to prepare for the damages hearing. Because the
chancellor's conclusion was not manifestly wrong, we
Facts and Procedural History
Chrissi Moore, Tammie Crossley, and John Templet Jr. were
once all business partners in XL Public Adjusters, Inc. But
in January 2008, Moore sued Crossley and Templet in the
Jackson County Chancery Court. Moore alleged fraud, company
theft, withheld compensation, and an attempted " squeeze
out" of her, a minority shareholder.
Moore's attempts to gather discovery were met with
repeated delays and requests for more time. Finally, in
February 2009, Crossley and Templet's attorney moved to
withdraw, citing his clients' refusal to cooperate with
discovery and compensate him for his services. The chancellor
permitted him to withdraw and gave Crossley and Templet a
month to find new counsel and two months to respond to
Trial was scheduled to begin less than a month after this
latest discovery deadline. But when the time for trial rolled
around, Crossley and Templet had not retained counsel nor
responded to discovery. Moore asked for a continuance, citing
her inability to prepare without discovery responses. Trial
was postponed, and Crossley and Templet were given an
additional two months to provide the requested information.
When they once again failed to meet this deadline, Moore
moved for discovery sanctions under Mississippi Rule of Civil
Procedure 37. Following a hearing, at which Crossley and
Templet failed to appear, the chancellor exercised his
authority under Rule 37 and struck their answer to
Moore's complaint, along with their counterclaim. The
chancellor then entered a default judgment and scheduled a
hearing to determine the amount of damages to be awarded.
Following this hearing--at which Crossley and Templet once
again did not appear--the chancellor entered a final judgment
awarding Moore $768,073.67 in damages, which included
$26,336.03 in attorney's fees and expenses. Crossley and
Templet did not appeal.
Motion to Set Aside
Instead, five months later, Crossley and Templet--represented
by new counsel--filed a motion to set aside the
chancellor's judgment under Mississippi Rule of Civil
In this motion, they argued they were never notified of the
hearing on Moore's motion for discovery sanctions. Nor
did they receive notice of the hearing on damages. After a
hearing on their Rule 60(b) motion, the chancellor entered an
order confirming the default judgment. He rejected Crossley
and Templet's argument they had not received notice of
the sanctions hearing, based on their own admission they had
received the notice.
But the chancellor did agree they had no notice of the
subsequent damages hearing. Because of this, he decided to
set aside the award for $768,073.67 and conduct another
damages hearing. The chancellor heard four days worth of
testimony from Moore, Crossley, and Templet, scattered
throughout the following year. He
then entered a new judgment awarding Moore
$267,853.67-$74,277 for lost commissions, $167,240.64 for her
24% share of the company, and $26,336.03 in attorney's
Within ten days of this order, Crossley and Templet filed a
motion to alter or amend under Mississippi Rule of Civil
Procedure 59, tolling the time to appeal. When that motion
was denied, Crossley and Templet timely appealed. Their
appeal not only challenges the new damage award but also the
underlying discovery sanction that led to the default
Scope of Review
We begin with the discovery sanction. And the first order of
business is to determine just exactly what Crossley and
Templet are appealing. From their brief, they seem to argue
they are appealing the merits of the August 2009 decision to
strike their answer. But that decision led to a default
judgment--a judgment that became final in March 2010. And
this final judgment was not appealed. Nor was this
judgment set aside. While the chancellor did order a new
hearing on damages, Crossley and Templet acknowledge in their
brief that the chancellor " refused to set aside the
With the underlying default judgment left undisturbed, what
Crossley and Templet are in fact appealing is the denial of
their Rule 60(b) motion to set aside. See
Blackmon v. W.S. Badcock Corp., Inc., 342 So.2d 367,
371 (Ala.Civ.App. 1977) (holding that a Rule 60(b) ruling to
vacate a damages award and conduct a new hearing did not
confer on the movant the right to address the merits of the
underlying default judgment). As we recently reiterated, this
court's " review of the denial of a Rule 60(b)
motion is extremely limited." Davis v. Vance,
138 So.3d 961, 963 (¶ 1) (Miss. Ct.App. 2014). We are
" not allowed to inquire into the actual merits of the
underlying judgment." Id. This is because Rule
60(b) is not a vehicle to relitigate the merits of a trial
judge's decision. Woods v. Victory Mktg., LLC,
111 So.3d 1234, 1237 (¶ 13) (Miss. Ct.App. 2013). So
even if the chancellor had done something that may have been
reversible error had Crossley and Templet timely
appealed, the fact remains that they did not appeal. And
Rule 60(b) cannot be used to get around this. See
Williams v. New Orleans Pub. Serv., Inc., 728 F.2d
730, 736 (5th Cir. 1984).
This court reviews the denial of their Rule 60(b) motion for
abuse of discretion. Stringfellow v. Stringfellow,
451 So.2d 219, 221 (Miss. 1984).
Alleged Failure to Apply Correct Legal Standard
In their Rule 60(b) motion, Crossley and Templet had
requested the judgment be set aside because it was entered in
violation of Mississippi Rule of Civil Procedure 55, which
governs default judgments. We find it was well within the
chancellor's discretion to reject their Rule 55
argument--mainly because Rule 55 had not been the procedural
vehicle for entering the default. Instead, the default was
the result of the Rule 37 discovery sanction. But even if
Rule 55 had applied, the Fifth Circuit has held that the
trial court's failure to comply with Federal Rule 55(b)
when entering a default judgment--which probably would have
led to reversal on direct appeal--was no reason to set aside
a default judgment under Federal Rule 60(b).
Williams, 728 F.2d at 736.
For the very same reason, Crossley and Templet's new
appeal also fails. They now claim the chancellor failed
to apply the four-factor test for striking a pleading under
Rule 37, which the Mississippi Supreme Court adopted in
Pierce v. Heritage Properties, Inc., 688 So.2d 1385,
1389 (Miss. 1997). While failure to apply the correct legal
standard--if that is indeed what happened--may have led to
reversal on a direct appeal, it is not a reason to set aside
a judgment under Rule 60(b). See Williams,
728 F.2d at 736. Only if one of the reasons stated in Rule
60(b) is met can a final, non-appealable judgment be set
aside. See M.R.C.P. 60(b) (listing six reasons why a
judgment may be set aside).
Alleged Violation of Due Process
Alternatively, Crossley and Templet had argued in their Rule
60(b) motion that the default judgment had to be set aside
because their due-process rights had been violated. One of
the reasons for setting aside listed in Rule 60(b) is that
the judgment is void. M.R.C.P. 60(b)(4). And a judgment
rendered in violation of due process is void. Fehlhaber
v. Fehlhaber, 681 F.2d 1015, 1027 (5th Cir. 1982). But
here, the chancellor did not abuse his discretion when he
found no due-process violation.
In their appellate brief, Crossley and Templet champion the
" bedrock law that a citizen has a property right in
their lawsuit," which the Due Process Clause protects.
But as the Fifth Circuit has noted, " [t]he due process
requirements in a civil case where only property interests
are at stake are, of course, much less stringent than in a
criminal case involving life and liberty interests."
Fehlhaber, 681 F.2d at 1027. " Thus ordinarily
all that due process requires in a civil case is proper
notice and service of process and a court of competent
jurisdiction." Id. Here, after conducting a
hearing on the matter, the chancellor concluded Crossley and
Templet had been given notice and an opportunity to
be heard on Moore's motion to strike their answer based
on their discovery violations. Thus, the grant of that motion
and resulting default judgment did not violate their right to
Crossley and Templet still insist in their appellants'
brief that their due-process rights were violated--this time
because the chancellor failed to consider lesser sanctions
before striking their answer. But they cite no
authority supporting their proposition that the failure to
consider lesser discovery sanctions is a due-process
Instead, the only authority they cite about due process and
discovery sanctions is Allen v. National R.R. Passenger
Corp., 934 So.2d 1006, 1016 (¶ 24) (Miss. 2006).
That case, unlike the one before us, was a direct appeal of a
final judgement resulting from a Rule 37 sanction. After
ruling that the particular due-process argument lodged on
appeal was procedurally barred for failure to raise it at the
trial level, our supreme court went on to briefly discuss the
merits of the claim. Id. at 1015 (¶ 23). Mr.
Allen had asserted his due-process rights were violated
because the trial judge did not permit
him to testify before sanctioning him under Rule 37.
Id. The supreme court rejected this argument, noting
" [a]ll that due process requires in cases of dismissal
under Rule 37 is that the trial court make a finding of
willfulness or bad faith on the part of the party whose
claims were adversely affected, which the trial court in
today's case properly did." Id. at 1016
(¶ 24) (citing Societe Internationale Pour
Participations Industrielles et Commerciales, S. A. v.
Rogers, 357 U.S. 197, 207-08, 78 S.Ct. 1087, 2 L.Ed.2d
Latching to the " all that due process requires"
language in Allen, Crossley and Templet argue the
chancellor failed to make the required finding of
willfulness. Again, this due-process argument, like the one
is Allen, is procedurally barred for not being
raised before the chancellor in their Rule 60(b) motion.
Id. at 1015 (¶ 23). But we too, like the
supreme court, will briefly engage in the merits. And after
reviewing the record, we conclude the chancellor's
decision to strike was based on his finding Crossley and
Templet had willfully refused to participate in the
litigation pending against them. In granting Moore's
motion to strike, the chancellor found the lack of discovery
responses was due solely to Crossley and Templet's
refusal to cooperate. This finding was substantially
supported by testimony from Crossley and Templet's former
counsel, who withdrew due to his clients' unwillingness
to participate in the litigation pending against them. And
this finding was not refuted by Crossley and Templet, who
failed to appear at the hearing on the motion to strike.
Thus, we find due process was satisfied when the chancellor
granted the motion to strike. Consequently, the chancellor
did not abuse his discretion by refusing to set aside the
default judgment that resulted from the stricken answer.
Amount of Damages
The chancellor did set aside the damages portion of
the March 2010 final judgment. So, unlike the underlying
default judgment, we do reach the merits of the new damage
award. The new $267,853.67 damage award followed four days of
testimony, scattered over five months.
Crossley and Templet criticize this award as being
speculative, because it included, by Moore's admission,
" guesstimates" and " ballpark" figures.
Crossley and Templet are correct that an award cannot be
based merely on speculation and conjecture. Woods v.
Burns, 797 So.2d 331, 334 (¶ 14) (Miss. Ct.App.
2001) (citing Flight Line v. Tanksley, 608 So.2d
1149, 1164 (Miss. 1992)). But " damages are speculative
only when the cause is uncertain, not when the amount is
uncertain." Parker Tractor & Implement Co. v.
Johnson, 819 So.2d 1234, 1239 (¶ 24) (Miss. 2002).
Here, the cause of the damages was not on the table, due to
the default judgment. Moore had alleged Crossley and Templet
owed her commissions and company revenue, but admitted she
was unsure of the exact amount. Accordingly, her damage claim
was not " speculative."
" [W]hen the cause of the damages is reasonably certain,
recovery is not to be denied because the data in proof does
not furnish a perfect measure thereof[.]" Id.
at 1239 (¶ 23) (quoting Hawkins Hardware Co. v.
Crews, 176 Miss. 434, 441, 169 So. 767, 769 (1936)).
Instead, " it is enough that sufficient facts are given
from which the jury may safely make at least a minimum
estimate." Id. (emphasis added). As this court
acknowledged in Woods, " [r]arely do we find a
situation where we have a scientific and mathematical formula
whereby the jury can simply
plug in the missing numbers and await an exact and calculated
result to offer as an award of damages." Woods,
797 So.2d at 335 (¶ 17). " Thus, in any situation
we can expect to find some measure of speculation and/or
conjecture," but " this alone will not act to deny
the plaintiff the award." Id.
Since some amount of estimation or speculation is permitted
when determining damages, the fact Moore testified she made a
" guesstimate" or believed a figure was " in
the ball park" is not a fatal blow to her damage award.
The conjectural nature of Moore's projected figures was
addressed at length before the chancellor. Moore was candid
that her figures were based on projections, not actual
collected income. This was because Crossley and Templet never
turned over the records on how their clients' claims were
Moore admitted her actual commission would be based on the
amount the insurance claim was finally settled for, not her
projections. When Moore recalculated her commissions, based
on the figures Crossley and Templet finally provided
during the second hearing, she admitted she was probably only
owed $74,277--not the $367,497 she had initially estimated.
So the chancellor awarded her $74,277 in unpaid commissions.
Moore had also initially estimated the company's revenue
had been almost $700,000, entitling Moore to 24%, or
approximately $167,000. According to the chancellor, Crossley
and Templet " wholly failed to provide evidence to
refute Moore's proof," despite their being " in
the best position to either confirm or refute Moore's
estimates regarding revenue" and despite having more
than a year's worth of hearings to do so. So he awarded
her the whole $167,240.64.
On appeal, Crossley and Templet claim they did put on proof
of the company's revenue, or lack thereof, and cite XL
Public Adjusters' tax returns. Essentially, they are
arguing the quality of their evidence--signed federal tax
returns--is better than Moore's. But
weight-of-the-evidence and credibility issues were for the
chancellor to decide, as he was in the best position to
observe the witnesses and the evidence they presented.
Rogers v. Morin, 791 So.2d 815, 826 (¶ 39)
(Miss. 2001) (citing Carter v. Carter, 735 So.2d
1109, 1114 (¶ 19) (Miss. Ct.App. 1999)). It is not our
role to reweigh the evidence on appeal. Carter, 735
So.2d at 1114 (¶ 18). The weight given to the tax
returns rested on the credibility of Crossley, who provided
the information to prepare them. It was the chancellor's
task to evaluate Crossley's credibility when questioned,
not just about these documents, but also about the lack of
any other documents to support her position. Absent any abuse
of discretion--which we do not find--we will not disturb his
conclusion on appeal.
The $26,336.03 in attorney's fees was based on Crossley
and Templet's recalcitrant behavior leading to their
answer being stricken. See M.R.C.P. 37 (authorizing
the award of attorney's fees, in addition to the other
sanctions available). Moore had submitted an itemized bill
from the attorney who initially represented her through the
default-judgment phase. So we also find no reason to disturb
this part of the damage award. See Williamson v.
Williamson, 81 So.3d 262, 276 (¶ 31) (Miss. Ct.App.
2012) (applying an abuse-of-discretion standard to the award
of attorney's fees as discovery sanctions).
In affirming, we find Parker Tractor instructive. In
that case, a farmer had sued a tractor dealer, alleging they
sold him a defective combine, which cost him farm work.
Parker Tractor, 819 So.2d at 1237-38 (¶ ¶
6-18). Because the farmer
put in the best records available to him and testified from
his own expert experience about the oral farming contracts he
had lost, the supreme court held he had sufficiently proved
his damages claim. Id. at 1239-40 (¶ ¶
25-27). At that point, " the burden was shifted to [the
tractor dealer] to negate any damages. [It] failed to do so
and is bound by the award." Id. at 1240 (¶
28). Here, Moore testified her estimates were based on the
records available to her and that she had done her best
considering Crossley and Templet's refusal to provide her
with discovery. And she testified from her own experience
about how the company would have collected revenue. That was
all the law required her to do.
Like in Parker Tractor, at this point the burden
shifted to Crossley and Templet to negate her figures. They
were able to do so with the commissions, so the chancellor
used their figures, not Moore's, as the basis
for this part of the award. But in the chancellor's view,
they were not able to negate Moore's proof that the
company actually made a profit to which Moore was entitled to
24%. So he let Moore's figure stand.
Because " it is within the province of the jury"
--or in this case the chancellor, as fact-finder--" to
determine the amount of damages to be awarded," this
court will only set aside a damage award if it is " so
unreasonable in amount as to strike mankind at first blush as
beyond all measure, unreasonable in amount[,] and
outrageous." Woods, 797 So.2d at 335 (¶
15) (quoting Lewis v. Hiatt, 683 So.2d 937, 941
(Miss. 1996)). Here, the amount of the award does not strike
us as outrageous. Nor have Crossley and Templet shown the
chancellor's findings on damages were " manifestly
wrong." See Rogers, 791 So.2d at 826
(¶ 39). For these reasons, we will not disturb the
amount of damages awarded.
THE JUDGMENT OF THE JACKSON COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON AND
FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS
IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN
 See M.R.C.P. 60(b)
(authorizing the trial judge to grant relief from a final
judgment under certain specified circumstances).
 Woods v. Burns, 797 So.2d 331,
334 (¶ 14) (Miss. Ct.App. 2001).
 Parker Tractor & Implement Co. v.
Johnson, 819 So.2d 1234, 1239 (¶ 23) (Miss.
Crossley and Templet claimed they actually
showed up to the Jackson County Chancery Court that day but
could not find the right courtroom.
It would be more accurate to say their new
argument on appeal " alternatively fails" based on
Williams. The primary reason their argument fails is
because it was not raised before and thus not consider by the
chancellor. So it is procedurally barred. See
Allen v. Nat'l R.R. Passenger Corp., 934 So.2d
1006, 1015 (¶ 23) (Miss. 2006).
Like their failure-to-apply-the-
Pierce-f actors argument, Crossley and
Templet did not assert their
failure-to-consider-lesser-sanctions argument in their Rule
60(b) motion. So it too is procedurally barred. See
Allen, 934 So.2d at 1015 (¶ 23).