Kumar, et al. v. Loper


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Docket Number: 2009-CA-02037-COA
Linked Case(s): 2009-CA-02037-COA ; 2009-CT-02037-SCT ; 2009-CT-02037-SCT

Court of Appeals: Opinion Link
Opinion Date: 06-07-2011
Opinion Author: Griffis, P.J.
Holding: Reversed and remanded.

Additional Case Information: Topic: Sexual harassment - Default judgment - Notice - Intent to defend - M.R.C.P. 55(b)
Judge(s) Concurring: Lee, C.J., Irving, P.J., Myers, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ.
Non Participating Judge(s): Russell, J.
Procedural History: Default Judgment
Nature of the Case: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE

Trial Court: Date of Trial Judgment: 10-29-2009
Appealed from: Lowndes County Circuit Court
Judge: Lee J. Howard
Disposition: Motion to Set Aside Defaullt Judgment Denied
Case Number: 2008-0156-CV1

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Arvind Kumar, Individually and d/b/a Holiday Inn of Columbus,Tony Savage and Tracey Savage




JOHN W. CROWELL



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: Shanna Loper P. NELSON SMITH JR.  

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    Topic: Sexual harassment - Default judgment - Notice - Intent to defend - M.R.C.P. 55(b)

    Summary of the Facts: On August 6, 2008, counsel for Shanna Loper sent a demand letter to Arvind Kumar asserting claims of sexual harassment and intentional infliction of emotional distress. Kumar operates the Holiday Inn in Columbus. On August 18, 2008, attorney Ed Pleasants responded to the demand. He stated that his letter served as notice that he was representing the Appellants in this matter. He further stated that the Appellants categorically and emphatically denied every single claim made by Loper. The attorneys exchanged several e-mails about certain evidence related to Loper’s claims. On December 9, 2008, after counsel for Loper had not received any further correspondence from Pleasants, Loper filed her complaint in the circuit court. She stated that Tony Savage had sexually harassed her at work, and Tracey Savage and Kumar were responsible as her supervisor and employer. Loper’s attorney spoke with Pleasants after the complaint had been filed. Pleasants said that he no longer represented the Appellants and that he thought another attorney would be handling the case. Neither Pleasants nor any other attorney ever made an appearance on behalf of the Appellants, and no answer was filed. A default judgment was entered by the circuit court, and a hearing was held to determine damages. The Appellants did not receive notice of the hearing. The circuit court entered an order awarding Loper $100,000 in damages. While representing Kumar in an unrelated matter, Kumar’s attorney discovered the default judgment. The Appellants filed an answer to Loper’s complaint and moved to vacate the default judgment entered against them. The circuit court found that no one had made an appearance on behalf of the Appellants; therefore, they were not entitled to notice of the hearing on the default judgment. The Appellants’ motion to vacate the default judgment was denied, and they now appeal.

    Summary of Opinion Analysis: The Appellants argue that Pleasants’ response to Loper’s demand letter clearly manifested their intent to defend against Loper’s claims. The purpose of the notice requirement of M.R.C.P. 55(b) is to protect those parties who, although delaying in a formal sense by failing to file pleadings within the thirty day period, have otherwise indicated to the moving party a clear purpose to defend the suit. It is evident from the language of Pleasants’ letter that the Appellants indicated a clear intent to defend against Loper’s claims. The Mississippi Supreme Court has held that such informal contacts between parties, including the exchange of letters between attorneys, might constitute an appearance under Rule 55(b). Loper argues that the letter was insufficient because it happened before the complaint was filed. However, simply because the letter was sent during Loper’s attempts to negotiate a settlement prior to the filing of the complaint does not change the fact that Loper was aware of the Appellants’ intent to defend the suit. Despite this knowledge, Loper failed to give notice to the Appellants of the hearing on default. The Appellants were entitled to three days’ notice of the hearing on the default judgment.


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