FSG Southaven LLC v. Makowsky Ringel Greenberg LLC

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CA-00550-COA

FSG SOUTHAVEN LLC APPELLANT

v.

MAKOWSKY RINGEL GREENBERG LLC APPELLEE

DATE OF JUDGMENT: 03/27/2018
TRIAL JUDGE: HON. GERALD W. CHATHAM SR.
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: J. HALE FREELAND
ATTORNEY FOR APPELLEE: DEREK EVAN WHITLOCK
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: AFFIRMED - 07/16/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

GREENLEE, J., FOR THE COURT:

¶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

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Under Uniform Civil Rules of Circuit and County Court Practice Rule 5.04, appeals
to the county court must be made “within thirty (30) days of the entry of the order or
judgment . . . .” Because FSG moved to set aside the judgment well after the 30-day
deadline, the county court determined that its appeal from the denial to set aside the
judgment was untimely. It found that “FSG elected to collaterally attack the result by filing
a Motion to Set Aside on or about October 21, 2016 or twenty-five (25) days after the period
for perfecting an appeal had expired and more than a month after they allegedly learned of
the default judgment.” But the circuit court on appeal found that the appeal to the county
court was timely because it was “filed within thirty (30) days of the order denying the motion
to set aside the judgment.” Uniform Justice Court Rule 2.19 does not specify a deadline for
these kind of motions. But because it is “[t]he inherent power of [the Mississippi Supreme
Court] to promulgate procedural rules,” Newell v. State, 308 So. 2d 71, 76 (Miss. 1975),

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¶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 (¶8)

(Miss. 2014). “A court must have jurisdiction . . . in order to enter a default judgment against

perhaps our Supreme Court should consider instituting such a deadline.

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a party . . . . Otherwise, the default judgment is void . . . . If a default judgment is void, [then]

the trial court has no discretion and must set the judgment aside.” BB Buggies Inc. v. Leon,

150 So. 3d 90, 95 (¶6) (Miss. 2014).

DISCUSSION

I. Did good cause exist to set aside the default judgment?

¶8. FSG claims that it “can show good cause as to its failure to attend the eviction

hearing on August 26, 2016.” The record shows that FSG received a summons as required

by sections 13-3-5 (Rev. 2012) and 89-7-33 (Rev. 2011) of the Mississippi Code Annotated

and Rule 2.08 of the Uniform Rules of Procedure for Justice Court. The record also shows

that the proof of service was returned on August 5. FSG claims that its agent then attempted

to reach Makowsky’s manager and counsel by telephone. The agent’s calls went unanswered

and unreturned until September 7; but the hearing had already been held, and the default

judgment had already been entered. FSG asserts, essentially, that it failed to attend the

hearing because those calls went unanswered and unreturned, which FSG asserts amounted

to good cause.

¶9. Uniform Justice Court Rule 2.19 provides that “[f]or good cause shown, the [justice]

court may set aside a default judgment.” But FSG’s justification for its failure to attend the

hearing is inadequate to establish good cause. The justice court properly provided notice that

a hearing would be held on August 26 by means of its July 14 summons. Although neither

FSG nor its agent were able to speak with Makowsky or its counsel before the hearing, this

lack of communication is not legitimate good cause to set aside the default judgment.

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Therefore, we affirm the circuit court’s order on this issue.

¶10. We note that typically our trial courts will employ a three-prong balancing test in

determining whether to set aside a default judgment:

(1) the nature and legitimacy of the defendant’s reasons for his default, i.e.,
whether the defendant has good cause for default, (2) whether [the] defendant
in fact has a colorable defense to the merits of the claim, and (3) the nature and
extent of prejudice which may be suffered by the plaintiff if the default
judgment is set aside.

Rogillio, 10 So. 3d at 468 (¶10). Stated simply, this three-prong balancing test “includes a

‘good-cause’ prong, a ‘colorable-defense’ prong, and a ‘prejudice’ prong.” Flagstar Bank

FSB v. Danos, 46 So. 3d 298, 307 (¶29) (Miss. 2010). And our Supreme Court has remanded

cases to trial-level courts when they fail apply the three-prong balancing test after “[t]he

parties thoroughly briefed and argued the . . . test in the trial court as well as on appeal.”

Wesley Health Sys. LLC v. Estate of Love, 200 So. 3d 440, 446 (¶26) (Miss. 2016). That is

not the present case. The parties have failed to argue the three prongs in the trial-level courts

as well as on appeal.

¶11. Notwithstanding their failure, we note that the other two prongs, namely the colorable-

defense prong and prejudice prong, cannot be satisfied. In order to satisfy the colorable-

defense prong, “a party must show facts, not conclusions, and must do so by affidavit or

other sworn form of evidence.” BB Buggies, 150 So. 3d at 103 (¶28). The parties did not.

And again, they did not even attempt to show any prejudice that the plaintiff may suffer if

the default judgment is set aside. Default judgment was proper.

II. Did Makowsky fail to provide statutory and contractual notice of
eviction?

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¶12. In a related claim, FSG asserts that Makowsky failed to provide both statutory and

contractual notice of eviction, thereby making default judgment inappropriate. Specifically,

FSG claims that: (1) Makowsky did not give notice to FSG that rent was due as required by

section 89-7-27 of the Mississippi Code Annotated (Rev. 2011); and (2) Makowsky did not

give notice to FSG that eviction proceedings were underway, as required by the contract

between the parties.

¶13. Regarding the statutory argument, FSG claims that the removal affidavit provided in

the record falsely states that Makowsky provided notice that rent was owed on July 6 as

required by Mississippi Code Annotated section 89-7-27 (Rev. 2011).2 Furthermore, FSG

argues that “there is no proof of any such notice in the record.” But FSG did not raise this

issue at the lower-court level. Because “[i]t is well-settled law that issues not raised at trial

are procedurally barred on appeal,” Travis v. GMAC Mortg. LLC, 229 So. 3d 183, 186 (¶9)

(Miss. Ct. App. 2017), this issue is not properly before this Court.

¶14. FSG did, however, assert its contractual argument before both the county court and

the circuit court. It claimed that Makowsky did not give notice to FSG that eviction

proceedings were underway, as required by the lease’s terms. When presented with this

argument on appeal, the county court found:

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Section 89-7-27 provides:

After any default in the payment of the rent pursuant to the agreement under
which such premises are held, and when complete satisfaction of the rent and
any late fees due cannot be obtained by distress of goods, and three (3) days’
notice, in writing, requiring the payment of such rent or the possession of the
premises, shall have been served by the person entitled to the rent on the
person who owes the rent.

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[FSG] relies upon section 19.6 of the parties’ lease which states in relevant
part that “Any notice, demand, request or other instrument which may be or
required to be given under this Lease shall be delivered in person or sent by
United States certified mail postage prepaid and shall be addressed . . . (b) if
to Tenant at the leased premises or at such other address as Tenant shall
designate by written notice.”

It should be noted, however, that a ‘summons’ is to be distinguished from a
‘notice’ and that the service of summons is governed by statute and rules of
court. It is the service of that summons that gives a court personal jurisdiction
over [FSG]. Parties cannot agree to expand or alter the jurisdiction of the
Court.

¶15. The circuit court affirmed the county court’s order, finding that “the Justice Court’s

decision to deny the motion to set aside was not error as the summons was served in a

manner consistent with Justice Court procedural rules and statutory laws.”

¶16. “Judicial review and interpretation of a contract involves a three-step analysis.”3

Epperson v. SOUTHBank, 93 So. 3d 10, 16 (¶16) (Miss. 2012).

First, we must determine whether the contract is ambiguous, and if it is not,
then it must be enforced as written. . . . In making that determination, the Court
must review the express wording of the contract as a whole. . . . If the contract
is unambiguous, the intention of the contracting parties should be gleaned
solely from the wording of the contract and parole evidence should not be
considered.

Id. at (¶17) (citations and internal quotation marks omitted).

¶17. Our review of the lease indicates that its terms are unambiguous. As the county court

did, we also note that the notice provision of the lease applies only to notices for violation

of specific terms under the lease, not to nonpayment of rent and definitely not to court

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The other two steps—namely applying the canons of contract construction and
considering extrinsic evidence—need only be taken when “the Court is unable to ascertain
the meaning of the contract and the intent of the parties within the ‘four corners’ of the
contract.” Epperson, 93 So. 3d at 17 (¶19). That is not the case here.

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summons. Therefore, the notice requirement is inapplicable here. To further expound upon

FSG’s contractual argument, we observe that section 19.12 of the lease determined that

Mississippi law “govern[s] the validity, performance and endorsement of this Lease.” And

the dispute under this lease between FSG and Makowsky occurred in the DeSoto County

Justice Court’s district. See Riley v. James, 73 Miss. 1, 18 So. 930, 930 (1895) (“Under the

present constitution, as under that of 1869, the jurisdiction of justices of the peace . . .

granted by the constitution, are limited to the districts for which they were elected.”).

Furthermore, section 16.1 of the lease provided:

In the event of any failure of Tenant to pay any rental due hereunder within ten
(10) days after the same shall be due, or in the event of any failure to perform
any other of the terms, conditions or covenants of this Lease to be observed or
performed by Tenant for more than thirty (30) days after written notice of such
default shall have been given to Tenant, . . . then Landlord besides other rights
or remedies it may have: (1) shall have the immediate right of re-entry and may
remove all persons and property from the leased premises . . . .

We reiterate the county court’s finding: It is clear that the written-notice requirement in this

provision applied only to FSG’s failure to perform actions other than pay rent under the lease.

And because we find that the terms of the lease are unambiguous, our analysis ends.

Epperson, 93 So. 3d at 17 (¶19). Makowsky’s actions did not violate the lease, and it

provided proper contractual notice of eviction to FSG.

¶18. We must note that the proceedings below were proper. Makowsky filed an eviction

action. The justice court issued summons. The proof of service was returned. FSG failed to

appear at the hearing. It was, therefore, entirely within the justice court’s discretion to grant

default judgment. On this basis, we affirm the circuit court’s order.

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III. Did the justice court exceed its jurisdiction?

¶19. Lastly, FSG argues that the justice court’s judgment requires FSG to pay more than

$730,000 in accelerated rents, which is well above the court’s jurisdictional limit as

determined by section 9-11-9 of the Mississippi Code Annotated (Rev. 2014).4 In doing so,

FSG attempts to invoke another action in which Makowsky has specifically sued for

accelerated rents, namely Makowsky Ringel Greenberg LLC v. FSG Southaven LLC, No.

17C11:17-cv-00102-JM,5 although that case is not before this Court. FSG also makes a

perplexing assertion that Makowsky is asking this Court “to turn a blind eye and ‘wink at the

Justice Court proceeding’ in order to affirm a voidable judgment.”

¶20. The county court noted that “[t]he total monetary amount rendered in the Justice Court

default judgment does not exceed [possession, court costs, and attorney fees] nor does it

exceed the jurisdictional limits of the Justice Court.” The circuit court agreed. As do we: The

justice court’s order is clear. It awards Makowsky $500 in attorney’s fees, $64 in filing fees,

and possession of its Getwell Road property. To argue that it requires anything more and to

attempt to incorporate a separate action filed in circuit court that is neither final nor properly

before this Court is not well taken and therefore not considered herein. We find this issue

without merit.

CONCLUSION

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“Justice court judges shall have jurisdiction of all actions for the recovery of debts
or damages or personal property, where the principal of the debt, the amount of the demand,
or the value of the property sought to be recovered shall not exceed Three Thousand Five
Hundred Dollars ($3,500.00).”
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This matter was filed in the DeSoto County Circuit Court.

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¶21. We find that the circuit court did not err in refusing to set aside the default judgment.

We find that FSG’s statutory argument under section 89-7-27 of the Mississippi Code

Annotated (Rev. 2011) was not raised at the circuit-court level and is not properly before this

Court. We find that the trial-level courts did not err in finding that the notice provision in the

lease did not apply to this situation and therefore it was within the justice court’s discretion

to grant default judgment against FSG. Finally, under a de novo standard of review, we find

that the justice court’s default judgment awarding Makowsky $500 in attorney fees, $64 in

filing fees, and possession of its Getwell Road property did not exceed its jurisdiction.

Therefore, we affirm the circuit court’s order.

¶22. AFFIRMED.

BARNES, C.J., CARLTON, P.J., WESTBROOKS, LAWRENCE, McCARTY
AND C. WILSON, JJ., CONCUR. J. WILSON, P.J., AND McDONALD, J., CONCUR
IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
TINDELL, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN
OPINION.

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