CARLSON, Presiding Justice, for the Court:
¶ 1. Calvin and Jamie Danos, individually and as guardians and next friends of Laura Matherne, a minor, Gavin Danos, a minor, and Marissa Danos, a minor (the Danoses), filed a petition for writ of certiorari after the Court of Appeals reversed the Lamar County Circuit Court's judgment entered in their favor against Flagstar Bank, FSB (Flagstar), and rendered judgment in favor of Flagstar. Having granted certiorari, we now reverse the judgment of the Court of Appeals, and reinstate and affirm the judgment entered by the Circuit Court of Lamar County.
¶ 2. A full account of the factual background and procedural history of this case is set forth in Flagstar Bank, FSB v. Danos, 46 So.3d 348, 350-55, ¶¶ 5-14 (Miss.Ct.App.2008). We set out here only those facts and the procedural history necessary to address and decide the issues before us.
¶ 3. On March 22, 2004, the Danoses filed suit against Flagstar and other defendants.
¶ 4. On September 25, 2006, the trial judge entered a default judgment against Flagstar. The judgment read as follows:
The hearing to assess damages was held on September 29, 2006. Flagstar was not present, nor did it have counsel present. At the conclusion of the hearing, the trial judge, on the same day, entered a judgment for damages in the amount of $500,000 against both Flagstar and Burks.
¶ 5. On October 11, 2006, an attorney filed a notice of entry of appearance as counsel for Flagstar, and on November 15, 2006, the attorney filed a motion to set
¶ 6. Additionally, Flagstar argued that the Danoses did not follow the provisions of Mississippi Rule of Civil Procedure 55(a) in obtaining the default judgment, because they failed first to apply to the clerk for an entry of default, to support that application by affidavit or otherwise, and then to seek a default judgment from the trial court only after entry of the clerk's default. Thus, Flagstar argued, the trial court's entry of a default judgment was faulty due to its failure to follow the mandatory requirements of Rule 55. Finally, Flagstar argued that the default judgment should be set aside because the bank had a colorable defense to the merits of the Danoses' complaint.
¶ 7. The trial court denied the motion to set aside default judgment and in a memorandum opinion explained its reasons for previously having entered the default judgment:
The trial court found no merit in Flagstar's claim of lack of jurisdiction because of inadequate service of process, stating only that "[w]hile the defendant raises numerous other issues relating to service and prejudice, this Court deems them to be without merit." The trial court likewise found no merit in Flagstar's argument that the default judgment was void for failure to first secure the entry of the clerk's default, ruling that neither an application for default nor a clerk's entry of fault was required in this case. The trial court stated, "M.R.C.P. 55(b) expressly allows for a default to be taken if a party fails to appear at the trial. Here, the record reflects, that the defendant failed to appear at three docket calls, trial and at writ of inquiry on damages."
¶ 8. The trial court rejected Flagstar's contention that default judgments are not favored and should be set aside when certain factors are shown. The trial court's order stated:
The trial court did not address whether Flagstar had a colorable defense to the action.
¶ 9. Aggrieved by the trial court's denial of its motion to set aside the default judgment and judgment awarding damages, Flagstar appealed to us, and we assigned this case to the Court of Appeals.
¶ 10. The Court of Appeals reversed the trial court's judgment denying Flagstar's motion to set aside the default judgment, and rendered judgment in favor of Flagstar for lack of jurisdiction. A majority of the Court of Appeals found that, because Flagstar was an out-of-state corporation, Mississippi Rule of Civil Procedure 4(d)(4)
¶ 11. The dissent disagreed, opining that the Court of Appeals' majority had misconstrued Mississippi Rules of Civil Procedure 4(c)(5) and 4(d)(4). Based on the dissent's interpretation of Rule 4(c)(5), process was deemed complete when the certified letter was signed for and picked up by the mailroom clerk. The dissent reasoned that Rule 4(c)(5) does not address whether someone other than the registered agent for service of process for a corporation may sign for a certified letter addressed to the registered agent. According to the dissent, because Flagstar is not a natural person, the Danoses were not required, under Rule 4(c)(5), to mark the envelope for restricted delivery. Therefore, the fact that the mailroom clerk signed for the certified letter, which was marked restricted delivery to Gladner, was inconsequential to the effectiveness of the process on Flagstar. Finally, the dissent found that Rule 4(c)(5) required only that the certified letter be properly addressed to Flagstar's registered agent for service of process, who was Gladner. Flagstar, 46 So.3d 348, 359-61, ¶¶ 32-37 (Irving, J., dissenting).
¶ 12. Aggrieved by the Court of Appeals' judgment, the Danoses filed a motion for rehearing, which the Court of Appeals denied; therefore, the Danoses filed a Petition for Writ of Certiorari, which we granted on June 11, 2009. After reviewing the record, this Court, by order entered on December 3, 2009, directed the parties to supplement the record with the transcript of the March 12, 2007, hearing concerning the entry of the default judgment against Flagstar. Likewise, the Court permitted the parties to file simultaneous supplemental
¶ 13. The critical issue addressed by the Court of Appeals was whether the plaintiffs sufficiently complied with Rule 4(c)(5) so as to effect service of process on the defendant Flagstar.
¶ 14. The comment to Rule 4(c)(5) states:
¶ 15. Because Flagstar is a foreign corporation not doing business in the state, and thus has no registered agent in the state, Mississippi Code Section 13-3-57, Mississippi's Long-Arm Statute, controls for purposes of jurisdictional intent. Miss. Code. Ann. § 13-3-57 (Rev.2002). However, the statute is silent with regard to service of process, in that it provides, "Service of summons and process upon the defendant shall be had or made as is provided by the Mississippi Rules of Civil Procedure." Id.
¶ 16. As the Court of Appeals' dissent pointed out, Rule 4(c)(5) is silent with regard to whether someone other than the registered agent for service of process for a corporation may sign for a certified letter addressed to the registered agent. So too are the statutes. What is clear, however, from the standpoint of the efficacy of service of process on a foreign corporation by way of certified letter, is that the letter must be properly addressed to the person authorized to receive process on behalf of the corporation and actually delivered to that address. That was done in this case, as it is clear from the record that the letter was properly addressed and that it reached its destination. Cf. Pointer v. Huffman, 509 So.2d 870, 873 (Miss.1987) (after discussion on issue of whether constable had authority under statute to serve
¶ 17. Further, we agree with the Court of Appeals' dissent that the Danoses' attempted service on Flagstar with "restricted delivery" does not in-and-of-itself render the attempted service invalid. This is a requirement born out of Mississippi Code Section 13-3-63, which governs service of process on nonresident motorists. Miss.Code Ann. § 13-3-63 (Rev.2002). The Danoses were not required to send the letter restricted delivery; the fact that they went the extra step should not be viewed as noncompliance with Rule 4(c)(5).
¶ 18. For the reasons stated, based on the facts revealed in today's record, we find that service of process was proper in this matter. To hold otherwise would work an illogical burden on plaintiffs who have no control over a corporate defendant's internal operating procedures, such as how mail rooms are run.
¶ 19. Because the Court of Appeals found that the default judgment must be set aside due to the trial court's lack of jurisdiction to enter the judgment because of defective process, the Court of Appeals, understandably, did not address the three-prong balancing test grounded in our law to determine the propriety of the trial court's refusal to set aside the default judgment. We thus turn now to this issue.
¶ 20. Flagstar appropriately filed a motion to set aside default judgment pursuant to Mississippi Rule of Civil Procedure 60(b). Without doubt, Mississippi Rule of Civil Procedure 55(c) is available to seek relief from a clerk's entry of default, while Rule 60(b) is reserved for those occasions when a party seeks relief from the trial court's entry of a judgment by default. American States Ins. Co. v. Rogillio, 10 So.3d 463, 467 (Miss.2009). Here, at least as to Flagstar, the circuit clerk entered no default, but instead, the trial court entered a default judgment pursuant to Mississippi Rule of Civil Procedure 55(b).
¶ 21. Mississippi Rule of Civil Procedure 60(b) states in pertinent part:
Miss. R. Civ. P. 60(b).
¶ 22. Although Flagstar does not specify what subsection of Rule 60(b) applies to justify granting relief from the judgment
¶ 23. Thus, in today's appeal, Flagstar argues that the trial court erred when it failed to apply properly the three-prong balancing test in ruling on Flagstar's Rule 60(b) motion to set aside default judgment. In Rogillio, this Court reiterated the equitable factors to be considered by the trial courts in determining whether a default judgment should be set aside. Those three factors are:
Rogillio, 10 So.3d at 468 (citing H & W Transfer & Cartage Serv., Inc. v. Griffin, 511 So.2d 895, 898 (Miss.1987)). See also Guar. Nat'l Ins. Co. v. Pittman, 501 So.2d 377, 388 (Miss.1987).
¶ 24. Flagstar's motion to set aside the default judgment is thirty pages in length, including exhibits. The first eleven pages of the motion are devoted to addressing the specific reasons to support Flagstar's motion as they relate to the three-prong balancing test. In the motion, Flagstar focuses its attention on the good-cause and colorable-defense factors. We recite here portions of the trial judge's memorandum opinion and order denying Flagstar's motion to set aside default judgment:
¶ 25. Additionally, in his Memorandum Opinion and Order, the trial judge discussed the fact that, pursuant to Mississippi Rule of Civil Procedure 55(b), he had authority to enter a default judgment once a defendant failed to appear on the trial date. The trial judge also acknowledged Flagstar's argument that Mississippi law does not favor default judgments and that trial courts should liberally set aside default judgments upon request. In response to that argument, the trial judge opined that such an approach of setting aside a default judgment simply upon request would be "perfunctory," eliminating the necessity for performing the three-part balancing test set out by this Court, and that there existed an important judicial policy concerning finality of judgment.
¶ 26. In Rogillio, the trial court found that the default judgment had been entered properly. Rogillio, 10 So.3d at 466. The basis for this conclusion, however, was that "the failure of the defendant to respond to the complaint was not due to accident or mistake, nor any conduct of the plaintiff or plaintiff's counsel, but to poor business practices of the defendant and complete inattention to the complaint." Id. Thus, as the trial court stated, "[t]he court finds there is no showing of good cause." Id. Therefore, in Rogillio, the trial court apparently considered only the "good cause" prong in deciding to deny the defendant's motion to set aside the default judgment.
¶ 27. Notwithstanding the trial court's apparent failure to apply the proper test in Rogillio, however, this Court thus engaged in its own three-prong balancing inquiry on appeal. We stated that "[i]n deciding whether to set aside a default judgment, the trial court must consider [the three-prong balancing test]." Rogillio, 10 So.3d at 468. Just before that, however, and in the same breath, we
¶ 28. Rogillio thus stands for the proposition that the trial court must employ the three-part balancing test when deciding whether to set aside a default judgment, and this Court must strike the same balance when determining whether the trial court abused its discretion in making that decision. While we are satisfied from the totality of the record, including the trial judge's memorandum opinion and order, that the trial judge applied the required three-prong balancing test, we will conduct the Rogillio analysis ourselves to determine if the trial court abused its discretion in denying Flagstar's motion to set aside the default judgment.
¶ 29. The Rogillio test includes a "good-cause" prong, a "colorable-defense" prong, and a "prejudice" prong. Id. at 468 (citing H & W Transfer, 511 So.2d at 898). The trial court's order stated the correct test as follows: "a defendant seeking relief under Rule 60(b)(6) must prove good cause, a colorable defense, and that setting aside will not prejudice the plaintiff."
¶ 30. The trial court's memorandum opinion and order in today's case pointed out that "the crux of the defendant's argument is that good cause exists to set aside." (Emphasis added.) Thereafter, the trial court's order engaged in a substantial analysis regarding the "good-cause" prong and found Flagstar's arguments to be without merit. The "good-cause" prong, however, does not pertain to "good cause" to set aside the default judgment. Rather, the "good-cause" prong refers to whether the defendant can show "good cause" for its default. Rogillio, 10 So.3d at 468. Flagstar never presented facts in its Motion to Set Aside specific to its reasons for default. The only facts Flagstar presented to the trial judge pertained to "good cause" to set aside the default judgment.
¶ 31. We note that in Flagstar's Motion to Set Aside, its principal reasons for "good cause" to set aside were (1) that service of process was ineffective, and (2) that the default judgment was void because the Danoses had failed to apply for an entry of default. However, the only argument presented by Flagstar that could apply toward "good cause" for the default was that service of process was improper. We addressed that argument in Issue I and found service of process was effected on Flagstar. See supra Issue I. Thus, this prong weighs in favor of the Danoses.
¶ 32. A trial court confronted with a motion to set aside a default judgment likewise must consider whether the defaulting defendant has a colorable defense to the merits of the plaintiff's claim. Rogillio, 10 So.3d at 469. Admittedly, this Court has held that the "colorable-defense" prong is the most important factor. With regard to that prong, we have held that "[i]f any one of the three factors in the balancing test outweighs the other in
¶ 33. Flagstar made several principal arguments regarding "colorable defenses" in its motion to set aside the default judgment. First, Flagstar argued that service of process was deficient. The trial court's order denying the motion states that "the defendant raises numerous other issues relating to service ... [but] this Court deems them to be without merit." (Emphasis added). Thus, it could be said that the trial court considered the "colorable-defense" prong, insofar as defective service of process is a "colorable defense," but found Flagstar's arguments thereunder to be lacking.
¶ 34. However, Flagstar also argued as a "colorable defense" that it could not be held liable, as a matter of law, for the injuries complained of by the Danoses. A short explanation of the background facts is required to understand this contention. The Danoses' complaint asserted liability based on the fact that several agents of the defendant mortgage holders had "submitted false and erroneous information to their principles [sic]" and thus to the Danoses, the consumers. The complaint alleged, inter alia, that Chris Shirley and Amerigo Mortgage were agents of Flagstar. To be liable for the acts of a disclosed principal, the agent must have acted outside the scope of his agency and would incur no individual liability absent fraud or other equivalent conduct. Rosson v. McFarland, 962 So.2d 1279, 1288 (Miss. 2007); see also Harrison v. Chandler-Sampson, Ins., Inc., 891 So.2d 224, 227-31 (Miss.2005). However, the trial court granted summary judgment to Shirley, finding that no genuine issues of material fact existed as to his liability.
¶ 35. However, notwithstanding our finding on this factor, we note that this Court addressed the availability of a colorable defense in Pointer v. Huffman, 509 So.2d 870, 874 (Miss.1987), and stated:
Pointer, 509 So.2d at 876.
¶ 36. Lastly, when confronted with a motion to set aside a default judgment, the trial court must consider and balance any prejudice the plaintiff would suffer if the default was set aside. Rogillio, 10 So.3d at 468. Here, the trial court's order stated that the "defendant raises numerous other issues relating to ... prejudice [but] this Court deems them to be without merit." In the introductory paragraph of his Memorandum Opinion and Order, the trial judge stated that he had "reviewed the motion [to set aside default judgment], memorandums [sic] in support, exhibits, as well as conducted a hearing." Thus, it is readily apparent from this language that, prior to issuing his ruling, the trial judge had considered, inter alia, Flagstar's motion to set aside default judgment with the attached exhibits, and the Danoses' response to the motion, with exhibits attached to the response. Although the trial court did not specifically discuss the "prejudice" prong in its order, the Danoses did present facts in their response to Flagstar's motion to set aside indicating that they would suffer prejudice if the default judgment were set aside. Specifically, the Danoses argued that, due to their "substantial discovery, lengthy investigations, and many motions," substantial prejudice would result if "they are forced to once again engage in lengthy and costly discovery to prepare this case for trial." Additionally, the trial court, in its memorandum opinion and order, stated that "[i]t is also important to note, that [t]his case is approximately three years old." The trial court also stated that it saw no need to set out a lengthy factual recitation "[g]iven the exhaustive factual background detailed in the Court's Memorandum Opinion and Order, on Allstate's Motion for Summary Judgment."
¶ 37. In sum, notwithstanding the attention appropriately devoted to the colorable-defense assertion in any case concerning issues of setting aside default judgments, in the end, of significant import, based on the facts and circumstances peculiar to the particular case before us today, is the following: As early in the life of this civil proceeding as April 22, 2004, Flagstar's legal department operations coordinator mailed a letter addressed to the Danoses' counsel stating, inter alia,
¶ 38. The facts of this case are similar to those found in Guaranty National Insurance Company v. Pittman, 501 So.2d 377 (Miss.1987), wherein this Court affirmed the trial court's denial of a motion to set aside a $400,000 default judgment entered after a hearing to assess damages in a case involving an unliquidated claim for damages incurred by the plaintiff due to an automobile accident. In so doing, this Court opined that "[a]ssuming that [the defendant] could count to thirty and had some rudimentary familiarity with the Julian calendar, the summons instructed him that his answer was due on December 12, 1984." Id. at 386-87. Thus, we are satisfied in today's case that the operations coordinator in Flagstar's legal department, through simple arithmetic, easily could have calculated that, in order to protect Flagstar's interests in this litigation commenced by the Danoses by assuring that a default judgment would not be entered against it, regardless of Flagstar's opinion as to the merits of the Danoses' assertions against Flagstar, responsive pleadings were required to be filed by May 22, 2004. Instead, the record reveals that Flagstar, throughout the history of this litigation, rolled the dice on its claim that the Danoses had failed to effect legal process upon it such that a lawful judgment could not be entered against it. See Sartain v. White, 588 So.2d 204, 208 (Miss.1991).
¶ 39. Likewise, we find applicable to today's case that, although the Court, in Pittman, found the defendant had made a substantial showing that the defendant had a colorable defense on the merits of the plaintiff's claim, this Court stated:
Pittman, 501 So.2d at 388-89.
¶ 40. In today's case, Flagstar's train left the station on September 29, 2006, the date the trial court entered the judgment against Flagstar in the amount of $500,000.
¶ 41. Simply put, it is not the duty of the members of this Court to determine what decision we would have made had we been the trial judges in this case. Instead, as already noted, our solemn responsibility is to review the trial judge's refusal to set aside the default judgment in this case by considering the record before us and applying the abuse-of-discretion standard of review. Having done so, we are unable to fairly conclude that the trial court exceeded its authority or abused its discretion in refusing to set aside the default judgment entered against Flagstar.
¶ 43. For the reasons discussed, we find that the trial court did not abuse its discretion in refusing to set aside the default judgment. Therefore, the judgment of the Court of Appeals is reversed, and the Lamar County Circuit Court's order denying the motion to set aside default judgment filed by Flagstar Bank, FSB, is reinstated and affirmed.
¶ 44.
GRAVES, P.J., AND KITCHENS, J., CONCUR. RANDOLPH, J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY LAMAR, J. DICKINSON AND PIERCE, JJ., JOIN IN PART. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION. PIERCE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J. CHANDLER, J., NOT PARTICIPATING.
RANDOLPH, Justice, Concurs in Part and in Result:
¶ 45. I concur in part and in result.
¶ 46. Mississippi Rule of Civil Procedure 4(c)(3)(A) provides:
¶ 47. Mississippi Rule of Civil Procedure 4(d)(4) requires "delivery of a copy of the summons ... to an ... agent authorized by appointment ... to receive service of process."
¶ 48. I would add to the plurality opinion only that the summons and complaint must be properly addressed to the person authorized to receive process on behalf of the corporation and actually delivered to that person at that address. The defendant confirmed that the requirements were met.
LAMAR, J., JOINS THIS OPINION. DICKINSON AND PIERCE, JJ., JOIN THIS OPINION IN PART.
DICKINSON, Justice, Dissenting:
¶ 49. The plurality of justices' analysis of the service-of-process issue ("Plurality") incorrectly finds service of process on Flagstar was proper. Importantly, the Plurality makes no finding that the mail clerk, Pena, was authorized to accept process for Flagstar. But because "Robert K. Fleming — the operations coordinator for Flagstar's legal department — admitted to having received the process" from some source, the Plurality finds it was perfected.
¶ 50. This is contrary to this Court's decision in Hyde Construction Co. v. Elton
¶ 51. For the past half-century, Hyde — which was not cited by the Plurality — has been good law.
¶ 52. I also dissent to the following holding from the Plurality:
(Emphasis added.)
¶ 53. So according to the Plurality, valid service of process may be obtained on a foreign corporation, even in a case where the undisputed facts establish that the process never reached any person authorized to receive it and no person associated with the defendant was aware of the lawsuit. Indeed, according to the plurality's view of "efficacy of service of process," all that is necessary is that process be properly addressed and delivered to the building, or anyone who happened to be in or around it. The Plurality fails to consider that most corporations are small businesses, and many (such as small farms) are operated out of a home. Thus, under today's Plurality opinion, process may be perfected by delivery to a landscaper found watering plants at the address of the defendant. Also, according to the Plurality's holding as recited above, so long as the postman (or postwoman) drops the process in the correct mailbox, or hands it to a customer seated in the defendant's waiting room, the defendant is properly served — even though for a variety of reasons the process may never be seen by anyone authorized to receive it.
¶ 54. I find this view of service of process repugnant to the principles of justice and fairness, and inconsistent with due process of law. For the reasons stated herein, I respectfully dissent.
PIERCE, Justice, Concurring in Part and Dissenting in Part:
¶ 55. The plurality's opinion in this case is shocking. Although Flagstar's general counsel committed a monumental error that in baseball terms can be compared to Bill Buckner's 1986 game-six World Series error, I cannot justify upholding a $500,000 default judgment when there is absolutely no basis in the law for doing so.
¶ 56. I fully concur with the plurality that Flagstar was properly served under the specific facts of this case. But I cannot concur with the plurality's analysis and disposition regarding Issue II. Because this Court consistently has found the "colorable-defense" prong of the three-part
¶ 57. I do not think the plurality or the trial courts struck the Rogillio equilibrium correctly, because each gave insufficient consideration to the weightiest element, Flagstar's "colorable defenses." When the Rogillio balance is properly struck, the evidence before the trial court and this Court shows that the default judgment entered against Flagstar should have been set aside. Again, because the "colorable-defense" prong is the most important element of the Rogillio test, Flagstar's defenses likely would have required the trial court to set aside the default judgment. But nowhere in the trial court's order denying Flagstar's motion to set aside the default judgment are these defenses mentioned. And since the trial court failed to have an on-the-record hearing, we are left without a transcript of the hearing on the motion to set aside. Thus, we cannot assume that the trial court considered these defenses at all.
¶ 58. Nevertheless, the plurality goes forward, as it should, with its own application of the three-prong standard. I agree with the plurality's analysis regarding the "good-cause" prong of the balancing test. But I believe the plurality's opinion incorrectly shifts the appropriate weight afforded by this Court away from the "colorable-defense" prong and thus takes the Court in a different direction. The facts of this case do not warrant such a shift in the law.
¶ 59. The plurality's opinion mentions additional colorable defenses presented by Flagstar that were not considered by the trial court and that establish a strong defense to the Danoses' claims. First, the plurality notes that Flagstar could not be held liable, as a matter of law, for the injuries complained of by the Danoses. The plurality recognizes that:
Plur. Op. at ¶ 34.
¶ 60. Yet despite finding that Flagstar could not have been held liable to the Danoses, the plurality goes on to state "this [colorable-defense] prong would appear to weigh in favor of Flagstar." Plur.
¶ 61. Additionally, Flagstar argued in its motion to set aside the default judgment that it did not hold the mortgage on the home when the allegedly fraudulent acts leading to the lawsuit occurred. As the plurality notes, if this fact is true, then Flagstar cannot be liable to the Danoses under the note. Beyond question, this would be a "colorable defense" to the Danoses' claim, and should have been considered by the trial court as well.
¶ 62. Thus, this prong of the three-part test substantially outweighs the other two.
¶ 63. It is well-established that the "colorable-defense" prong "is a factor which often should be sufficient to justify vacation of a judgment entered by default." Guar. Nat'l Ins. Co. v. Pittman, 501 So.2d 377, 388 (Miss.1987).
¶ 64. The arguments asserted by the Danoses are spurious, and clearly lack enough merit to outweigh Flagstar's colorable defenses. Rather, the Danoses should bear the consequences for allowing Shirley and Amerigo out of the case, because they should have known that letting Shirley out of the case would simultaneously let Flagstar out as well.
¶ 65. Because Flagstar had no liability to the Danoses under the law and presented such to the trial court, I would find that the trial court abused its discretion in not setting aside the default judgment. Accordingly, I would reverse and render as to Issue II.
¶ 66. Alternatively, and in light of the plurality's decision to uphold the default judgment, I would note that the trial court's judgment and damage award of $500,000 is not supported by the evidence and amounts to plain error. And because the damage award in this case is so grossly disproportionate as to be contrary to common logic, it should be overturned. See Greater Canton Ford Mercury, Inc. v. Lane, 997 So.2d 198, 206 (Miss.2008), reh'g denied Jan. 8, 2009. ("This Court has stated that `damage awards are only overturned when the trial judge has abused his discretion or in exceptional cases where such awards are so gross as to be contrary to right reason.'")
¶ 68. The record before this Court reveals that neither the complaint nor the exhibits submitted at the September 29, 2006, hearing provided a factual basis for the amount awarded by the trial court.
¶ 69. Although I would set aside the default judgment as mentioned above, I would note that the plurality, in upholding the default judgment, in essence has blindly permitted an award which is virtually devoid of substantiation. See Nevels, 578 So.2d at 617. Further, the trial court found Flagstar and Michael Burks jointly and severally liable to the Danoses, yet failed to assign a percentage of fault to either defendant. The statute applicable at the time of the suit required that the trial court apportion fault between the two defendants. See Miss.Code Ann. 85-5-7 (Rev.1999).
WALLER, C.J., JOINS THIS OPINION.
Service by sheriff or process server shall be made as follows:
Miss. R. Civ. P. 4(c)(5).
Miss.Code Ann. § 85-5-7(2) (Rev. 1999).