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FSG Southaven LLC v. Makowsky Ringel Greenberg LLC

Court of Appeals of Mississippi

July 16, 2019

FSG SOUTHAVEN LLC APPELLANT
v.
MAKOWSKY RINGEL GREENBERG LLC APPELLEE

          DATE OF JUDGMENT: 03/27/2018

          DESOTO COUNTY CIRCUIT COURT HON. GERALD W. CHATHAM SR. TRIAL JUDGE

          ATTORNEY FOR APPELLANT: J. HALE FREELAND

          ATTORNEY FOR APPELLEE: DEREK EVAN WHITLOCK

          BEFORE J. WILSON, P.J., GREENLEE AND McCARTY, JJ.

          GREENLEE, J.

         ¶1. The DeSoto County Justice Court granted a default judgment for Makowsky Ringel Greenberg LLC (Makowsky), awarding it attorney's fees, filing fees, and possession of its property at 5960 Getwell Road in Southaven. FSG Southaven LLC (FSG) moved to set aside the judgment and eviction, and the justice court denied its motion. FSG appealed to the County Court of DeSoto County, and Makowsky moved to dismiss the appeal. After a hearing, the county court granted the motion to dismiss and entered an order of procedendo. FSG appealed to the DeSoto County Circuit Court, which affirmed the county court's decision. Now, FSG appeals to this Court. It asserts that: (1) good cause existed to set aside the default judgment; (2) Makowsky failed to provide statutory and contractual notice of eviction; and (3) the justice court exceeded its jurisdiction. We affirm the circuit court's order.

         FACTS AND PROCEDURAL HISTORY

         ¶2. FSG entered into a lease with Makowsky in late 2012 for the rental of a portion of the shopping center at 5960 Getwell Road in Southaven, Mississippi. By July 2016, FSG had failed to pay rent, and Makowsky filed a "Landlord or Agents Affidavit to Remove Tenant Holding over without Permission" in the DeSoto County Justice Court. The court issued a summons to FSG on July 14, and the summons was served on the registered agent for service of process, and proof of service was returned on August 5. The court scheduled a hearing, and after FSG did not appear, the justice court entered a default judgment against it on August 26, awarding Makowsky $500 in attorney fees, $64 in filing fees, and possession of its Getwell Road property.

         ¶3. FSG moved for the justice court to set aside the judgment and eviction for good cause on October 21. The justice court denied FSG's request. FSG appealed the denial to the County Court of DeSoto County, and Makowsky moved to dismiss the appeal.[1]

         ¶4. After a hearing, the county court granted the motion to dismiss and entered an order of procedendo. FSG appealed to the DeSoto County Circuit Court, which determined that the county court "did not specifically address the issue as to whether the Justice Court judgment was void because [Makowsky's] claim exceeded the justice court's jurisdiction limits."

         ¶5. On remand, the county court addressed the specific issue, finding that the judgment from the justice court was not void. FSG appealed, and the DeSoto County Circuit Court affirmed the county court's order. Now, FSG appeals to this Court, arguing that: (1) good cause existed to set aside the default judgment; (2) Makowsky failed to provide statutory and contractual notice of eviction; and (3) the justice court exceeded its jurisdiction. We affirm the circuit court's order.

         STANDARD OF REVIEW

         ¶6. Our appellate courts "review[] a trial court's decision regarding a motion to set aside a default judgment for an abuse of discretion." Am. States Ins. Co. v. Rogillio, 10 So.3d 463, 467 (¶8) (Miss. 2009). And "where there is a reasonable doubt as to whether or not a default judgment should be vacated, the doubt should be resolved in favor of opening the judgment and hearing the case on its merits." Id. (quoting McCain v. Dauzat, 791 So.2d 839, 843 (¶10) (Miss. 2001)).

         ¶7. Regarding jurisdictional issues, however, our standard is "a de novo standard of review." Joshua Properties LLC v. D1 Sports Holdings LLC, 130 So.3d 1089, 1092 (ΒΆ8) (Miss. 2014). "A court must have jurisdiction . . . in order to enter a default judgment against a party . . . . Otherwise, the default judgment is void . . . . If a default judgment is void, [then] the trial court has no discretion and ...


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