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Crossley v. Moore

Court of Appeals of Mississippi

April 21, 2015

TAMMIE J. CROSSLEY, JOHN TEMPLET, JR. AND XL PUBLIC ADJUSTERS, INC. A MISSISSIPPI CORPORATION, APPELLANTS
v.
CHRISSI D. MOORE, INDIVIDUALLY AND AS SHAREHOLDER OF AND FOR AND ON BEHALF OF XL PUBLIC ADJUSTERS, INC., APPELLEE

         DATE OF JUDGMENT: 06/05/2012

Page 463

[Copyrighted Material Omitted]

Page 464

          COURT 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 $267,853.67.

         FOR APPELLANTS: OLIVER E. DIAZ JR., DAVID NEIL MCCARTY, JONATHAN ADAM MILLER.

         FOR APPELLEE: H. BENJAMIN MULLEN.

         BEFORE 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.

          OPINION

Page 465

         MAXWELL, J.

         [¶1] 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.[1]

         [¶2] 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.

         [¶3] 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," [2] not perfection.[3] 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

Page 466

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 affirm.

         Background Facts and Procedural History

         [¶4] 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.

         I. Discovery Sanction

         [¶5] 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 discovery.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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 ...


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