Olive v. Malouf


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Docket Number: 2010-CA-01996-COA
Court of Appeals: Opinion Link
Opinion Date: 07-24-2012
Opinion Author: Roberts, J.
Holding: Affirmed
Additional Case Information: Topic: Real property - Default judgment - M.R.C.P. 55(c) - M.R.C.P. 60(b) - Good cause - Colorable defense
Judge(s) Concurring: Lee, C.J., Griffis, P.J., Ishee, Carlton, Maxwell, Russell and Fair, JJ.
Non Participating Judge(s): Irving, P.J.
Concur in Part, Concur in Result 1: Barnes, J.
Procedural History: Default Judgment
Nature of the Case: CIVIL - REAL PROPERTY
Trial Court: Date of Trial Judgment: 10-15-2009
Appealed from: Madison County Chancery Court
Judge: Cynthia Brewer
Disposition: MOTION TO SET ASIDE DEFAULT JUDGMENT DENIED
Case Number: 2007-956-B
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Roger Olive




 JAMES E. SMITH JR.



  
  • Appellant #1 Brief
  • Appellant #1 Reply Brief
    		•
    Appellee: Robert A. Malouf ROBERT A. MALOUF  
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    Topic: Real property - Default judgment - M.R.C.P. 55(c) - M.R.C.P. 60(b) - Good cause - Colorable defense
    Summary of the Facts: Robert Malouf sued Roger Olive and others to enforce a contract to purchase real property and set aside a deed. Malouf had entered a written agreement with Olive’s predecessors in title to purchase approximately forty-six acres of property in Madison County. Despite having entered a written agreement with Malouf, prior to Malouf’s anticipated closing date, Olive’s predecessors in title sold the property at issue to Olive for considerably less than Malouf had agreed to pay. Malouf sued Olive and Olive’s predecessors in title. Olive was served with process, but he never filed an answer. Malouf wrote a letter to Olive and informed him that Olive’s failure to respond would result in a default judgment. When Olive did not respond, Malouf applied for a default judgment. The chancellor set aside the deed to Olive and awarded Malouf the title to the property. Olive then attempted to set aside the judgment by filing a motion under M.R.C.P. 60(b). The chancellor denied Olive’s motion, and he appeals.
    Summary of Opinion Analysis: Olive argues that the chancellor erred when he denied Olive’s motion to set aside the judgment for Malouf. M.R.C.P. 55(c) provides that for good cause shown, the circuit court may set aside an entry of default and, if a judgment by default has been entered, the circuit court may likewise set it aside in accordance with Rule 60(b). To determine whether to grant relief according to Rule 60(b), the court considers the nature and legitimacy of a defendant's reasons for default (i.e., whether a defendant has good cause for default), whether the defendant has a colorable defense to the merits of the claim, and the nature and extent of prejudice that a plaintiff would suffer if default is set aside. Other than his driver’s license, Olive did not offer any proof to support his Rule 60(b) motion. He did not explain his failure to file an answer. Approximately two months before Malouf moved for a default judgment, he wrote to Olive at the same address in Olive’s summonses. Olive did not present a defense to the merits of Malouf’s claim. Malouf paid the agreed-upon price for the property at issue and paid the amount directly to BankPlus for Olive’s benefit – despite Olive’s having harvested the trees on the property. Malouf did not obtain any unjust enrichment. Malouf was deprived of access to the property until October 15, 2009. During that time, Olive harvested the timber off of the property. In other words, Olive stripped the property of a significant asset while the ownership of the property was unresolved. Under the circumstances of this case, the chancellor did not abuse her discretion when she denied Olive’s motion to set aside the default judgment.


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