IN THE SUPREME COURT OF MISSISSIPPI CASE NO CA SCT WILLIAM CHRISTOPHER TUCKER

Transcription

1 E-Filed Document Nov :59: CA SCT Pages: 21 IN THE SUPREME COURT OF MISSISSIPPI CASE NO CA SCT WILLIAM CHRISTOPHER TUCKER APPELLANT VS. GAY ST. MARY WILLIAMS AND LARRY WILLIAMS APPELLEES ON APPEAL FROM THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT REPLY BRIEF OF APPELLANT Oral Argument Requested Respectfully submitted, WILLIAM CHRISTOPHER TUCKER, APPELLANT BY: GAMMILL MONTGOMERY, PLLC BY: /s/ Andrew Rueff TOBY J. GAMMILL (MSB #100367) ANDREW RUEFF (MSB #103582) Gammill Montgomery, PLLC 221 Sunnybrook Road, Suite B Phone: (601) Fax: (601) toby@gammillmontgomery.com andrew@gammillmontgomery.com i

2 IN THE SUPREME COURT OF MISSISSIPPI CASE NO CA-02100SCT WILLIAM CHRISTOPHER TUCKER APPELLANT VS. GAY ST. MARY WILLIAMS AND LARRY WILLIAMS APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court may evaluate possible disqualification or recusal: 1. Chuck McRae, Esq. 416 East Amite Street Jackson, Mississippi Attorney for Gay St. Mary Williams 2. Toby J. Gammill, Esq. Andrew Rueff, Esq. Gammill Montgomery, PLLC 221 Sunnybrook Road, Suite B Ridgeland, Mississippi Attorneys for William Christopher Tucker 3. Gay St. Mary Williams, Plaintiff/Appellee 4. Larry Williams, Plaintiff/Appellee 5. William Christopher Tucker, Defendant/Appellant 6. Honorable Winston Kidd Circuit Court of Hinds County First Judicial District 407 East Pascagoula Street Jackson, Mississippi Circuit Court Judge, Hinds County, Mississippi ii

3 Respectfully submitted, WILLIAM CHRISTOPHER TUCKER, APPELLANT BY: GAMMILL MONTGOMERY, PLLC BY: /s/ Andrew Rueff TOBY J. GAMMILL (MSB #100367) ANDREW RUEFF (MSB #103582) Gammill Montgomery, PLLC 221 Sunnybrook Road, Suite B Phone: (601) Fax: (601) toby@gammillmontgomery.com andrew@gammillmontgomery.com iii

4 IN THE SUPREME COURT OF MISSISSIPPI CASE NO CA SCT WILLIAM CHRISTOPHER TUCKER APPELLANT VS. GAY ST. MARY WILLIAMS AND LARRY WILLIAMS APPELLEES TABLE OF CONTENTS TABLE OF CONTENTS...iv TABLE OF AUTHORITIES...v REPLY BRIEF ARGUMENT...1 I. The interrelation between the trial court's failure to set aside the Clerk's Entry of Default, and the trial court's ultimate entry of Default Judgment. II. III. IV. The timeliness of Tucker's appeal. Williams' remaining procedural arguments. Rule 55(c) and 60(b) factors all weigh in favor of setting aside Default. V. Errors in the hearing on damages. CONCLUSION...13 CERTIFICATE OF SERVICE...15 iv

5 IN THE SUPREME COURT OF MISSISSIPPI CASE NO CA SCT WILLIAM CHRISTOPHER TUCKER APPELLANT VS. GAY ST. MARY WILLIAMS AND LARRY WILLIAMS APPELLEES TABLE OF AUTHORITIES CASES: Woodruff, v. Thames143, So. 3d 546 (Miss. 2014)...2, 9-12 Brown v. Tate, 95 So. 3d 745, 2012 (Miss. Ct. App. 2012)...5, 7 Am. States Ins. Co. v. Rogillio, 10 So. 3d 463 (Miss. 2009)...5 Pruett v. Malone, 767 So. 2d 983, and 507 So. 2d Belhaven Improvement Ass'n, Inc. v. City of Jackson, 507 So. 2d BB Buggies, Inc. v. Leon, 150 So. 3d 90 (2014) Stinson Gulf Coast Trust and Bank Co. v. Stinson...13 Liberto v. D.F. Stauffer Biscuit Co Graves v. Graves, 531 So. 2d 817 (Miss. 1988)...14 McClatchy Planting Co. et. Al. v. Harris, 807 So. 2d 1266 (Miss. 2001)...14 Courtney v. Glenn 782 So. 2d 162 (Miss. Ct. App. 2000)..14 City of Jackson v. Spann, 4 So. 3d 1038 (Miss. 2009)...14 RULES OF PROCEDURE MISSISSIPPI RULE OF CIVIL PROCEDURE 55(C) 2-9, 15 MISSISSIPPI RULE OF CIVIL PROCEDURE 60(B)..2-5, 8-9, 15 v

6 IN THE SUPREME COURT OF MISSISSIPPI CASE NO CA SCT WILLIAM CHRISTOPHER TUCKER APPELLANT VS. GAY ST. MARY WILLIAMS APPELLEE REPLY BRIEF OF THE APPELLANT COMES NOW Appellant, by and through counsel of record, Toby J. Gammill and Andrew Rueff of Gammill Montgomery, PLLC, and files the Appellant s Reply Brief, pursuant to the Mississippi Rules of Civil Procedure and the Mississippi Rules of Appellate Procedure, and respectfully requests that this Court reverse the default judgment entered against William Christopher Tucker in the Circuit Court of Hinds County and render a dismissal of the trialcourt-plaintiff's lawsuit, or in the alternative, remand this case for consideration on the merits by the trial court. REPLY BRIEF ARGUMENT I. The interrelation between the trial court's failure to set aside the Clerk's Entry of Default, and the trial court's ultimate entry of Default Judgment. Rather than argue the propriety of the Default Judgment, Williams' Response Brief begins with two procedural arguments against Tucker's appeal itself. Williams first argues that Tucker's Appeal is untimely, since it was not filed within thirty (30) days of either the Order denying Tucker's Motion to Set Aside the Clerks' Entry, or within thirty (30) days of the Order denying Tucker's Motion for Reconsideration of that issue. Secondly, Williams argues that the wording in Tucker's Statement of the Issues for this appeal waives his appeal, as Tucker argues abuse of discretion in the Court's decision regarding both the Clerk's Entry of Default and the Default Judgment, but only mentions the Clerk's Entry in his brief's heading. It should be noted that 1

7 despite Williams' alleged confusion, Williams has written an eloquent brief which comprehends, analyzes, and attempts to counter Tucker's Rule 55(c) and Rule 60(b) arguments relevant to both the Clerks' Entry and the ultimate Default Judgment. To be clear, the primary issue on appeal is perfectly straightforward, at least from Tucker's perspective: based on all of the facts and circumstances surrounding this case, it was an abuse of the trial court's discretion for the case to end up in a Default Judgment. It has been no mystery to Williams that Tucker has contested and opposed this Default Judgment at every stage. This has been Tucker's position from the date that he received notice of the Clerk's Entry of Default from June 15 th, 2010, up to the date that a Default Judgment was actually entered on November 23 rd, 2013, and now through this appeal. That being said, Tucker would agree with a sentiment repeatedly expressed by the Mississippi Supreme Court, including recently in the 2014 case, Woodruff, v. Thames, that "[a]scertaining the meaning of the provisions of Rule 55(c) and Rule 60(b)(5) and (6) with any degree of precision simply may not be done for the language is hopelessly open textured." (internal citations omitted). 143, So. 3d 546, 552 (Miss. 2014). It is common theme in most any opinion analyzing a Default Judgment issue that Rule 55(c) and Rule 60(b) are discussed together, which is unsurprising as Rule 55(c) directly mentions Rule 60(b), and since any case ending up in a Default Judgment has also been through a Clerk's Entry of Default as a prerequisite. The stance adopted by the Mississippi Supreme Court is that "[c]onsidering the interplay of those rules essentially results in a balancing of the equities." Id. A review of this case's procedural history shows just how interrelated those two Rules can be. It is undisputed that while the Clerk's entry of Default was entered on June 15 th, 2010, the trial court did not enter a Default Judgment until November 22 nd, (See Docket Sheet, Tucker Record Exerpts, hereinafter "T.R.E.," at 1-7). Williams' Motion for Default Judgment, 2

8 however, was actually filed on June 15 th, 2010, the same date has she filed her application for Clerk's Entry of Default. Tucker's Motion to Set Aside Clerk's Entry was filed on November 5 th, Id. Importantly, both Williams' Motion for Default Judgment and Tucker's Motion to Set Aside Clerk's Entry of Default were heard by the Court on the same hearing date, which was January 24 th, (T.R.E., at 42). Therefore, at this stage, the trial court was presented with argument from Tucker that the Clerk's Entry of Default should be set aside pursuant to an analysis under Rule 55(c), and that Williams' Motion for Default Judgment should be denied pursuant to an analysis under Rule 60(b). The Court entered an Order denying Tucker's Motion to Set Aside Clerks' Entry on July 1 st, 2011 without explanation. (T.R.E, at 1-7). However, the Court did not enter an Order granting Default Judgment until November 22 nd, 2013, around five months after the Court had already conducted a damages hearing. (T.R.E., at , and 150). From the first hearing through appeal, Tucker has argued concurrently that the Clerk's Entry should be set aside, and that Default Judgment should not have been entered. In the meantime, Tucker filed his Motion for Reconsideration on July 25 th, 2011 which included details about the prior federal lawsuit and compulsory counterclaim issue, an accident reconstructionist report discussing liability, a Release showing the settlement of the prior federal suit, and an affidavit explaining Tucker's confusion between the two lawsuits to support his good faith argument for default. (T.R.E., beginning at 49; supplement at 92). It should be noted that Williams' filed a Motion to Strike the exhibits filed along with the Motion for Reconsideration, but the Court never entered an Order granting that Motion. The Court did, however, enter an Order denying the Motion for Reconsideration which stated that Tucker had "given no reason" for his default, and "good cause does not exist" to lift the Clerk's entry. (T.R.E., 109). 3

9 The next opportunity the Court had to consider this case was on June 24 th, At this time, the Court had still not entered a Default Judgment in favor of the Plaintiff, and had still not ruled on the Plaintiff's pending Motion for Default Judgment which Tucker had opposed at the January 24 th, 2011 hearing. Nonetheless, on June 24 th, 2013, the Court held a hearing on Williams' Motion for Hearing on Assessment of Damages, during which time the Plaintiff put on proof of damages. (T.R.E., beginning at 110). Again, this hearing took place before Default Judgment was entered. During this hearing, before the Plaintiff put on witnesses, Tucker's counsel again referred to the prior Motions to set aside the Clerk's Entry of Default, and again noted an objection to the Default Judgment by bringing up the prior lawsuit. Finally, on November 22 nd, 2013, the trial Court entered a Memorandum Opinion and Order which found that the Plaintiffs were entitled to a judgment totaling near 3.2 million dollars. (T.R.E., 143). This Order never explicitly states that the Court is granting Williams' pending Motion for Default Judgment. Id. The Order does not go through a Rule 55(c) or a Rule 60(b) analysis of the three factors to be considered in granting a Motion for Default Judgment, i.e (1) good cause explanation for the default, (2) the existence of a colorable defense to the merits of the claims, and (3) the potential prejudice to the non-defaulting party. The Order merely states that "Tucker has never fully explained why he failed to properly respond. The Court's Order denying Tucker's Motion to Set Aside the Clerk's Entry of Default was entered on July 1, Thus the only remaining issue is that of damages." Id. All of this recap of the procedural history is to show that the trial court's abuse of discretion, as argued in Tucker's original appeal brief, is found in its misapplication of Rules 55(c) and Rule 60(b) throughout this litigation, specifically by failing to set aside the Clerk's Entry of Default, and ultimately entering a Default Judgment in favor of the Plaintiff. No 4

10 meaningful 55(c) or 60(b) analysis is contained in any Order entered by the Court. The ultimate Order on November 22 nd, 2013 merely states that Tucker failed to "fully explain" why he did not respond to the Complaint, and ends its analysis there. By November 22 nd, 2013, the Court had in its possession all of the arguments made by Tucker in his written and oral arguments from his Motion to Set Aside Clerk's Entry of Default, and subsequent Motion for Reconsideration. The Court had in its possession all of the arguments made by Tucker in opposition to William's Motion for Default Judgment, which remained pending from June 15 th, 2010 until November, The Court had in its possession all of the exhibits relevant to the Default Judgment issue, including affidavit testimony from Tucker himself explaining the default, an accident reconstructionist report showing colorable defense, and a settlement Release and Agreed Order of Dismissal from a prior lawsuit which at a minimum served as evidence supporting every element under a 55(c) and 60(b) analysis, and at a maximum precluded Williams from filing her lawsuit in the first place under compulsory counterclaim rules. These are the tools which the Court possessed when it failed to set aside the Clerk's Entry of Default. Obtaining a default judgment under Miss. R. Civ. P. 55 is a two-step process. "First, entry of default must be entered by the clerk of the court, which is obtained through a motion and supporting affidavits; then, the plaintiff must obtain a default judgment from the court." Brown v. Tate, 95 So. 3d 745, 2012 (Miss. Ct. App. 2012). A Clerk's Entry of Default is merely a step in the process towards obtaining a Default Judgment. As such, these same tools were in possession of the trial Court when it made granted a Default Judgment in favor of the Plaintiffs. Instead of using these tools, the Court, much like Williams in her Response brief, focused exclusively on the element of good cause basis for default. As stated in Am. States Ins. Co. v. Rogillio, the three pronged set for determining the propriety or impropriety 5

11 of a Default Judgment "mandates weighing the following factors: (1) the nature and legitimacy of a defendant s reasons for default (i.e., whether a defendant has good cause for default), (2) whether the defendant has a colorable defense to the merits of the claim, and (3) the nature and extent of prejudice that a plaintiff would suffer if default is set aside. 10 So. 3d 463 (Miss. 2009). As stated previously, this "mandatory" analysis is not found in any Order from the trial Court. By stating, verbatim that "[t]he Court's Order denying Tucker's Motion to Set Aside the Clerk's Entry of Default was entered on July 1, Thus the only remaining issue is that of damages," the Court forwent its mandatory analysis in granting Williams' Motion for Default Judgment. (T.R.E., 143). The Court held, in error, that once Tuckers Motion to Set Aside Clerks' Entry was denied, no further analysis was required on the Default issue from the Court, despite the fact that Williams' Motion for Default Judgment was still pending before the Court, and had been opposed by Tucker at a hearing with the same valid and compelling documents and arguments used to support Tucker's Motion to Set Aside Clerk's Entry. Again, it is appears from the Order that the Court did not even grant Williams' Motion for Default Judgment, but instead just assumed the issue was resolved with finality upon denying the Motion to Set Aside Clerk's Entry. In conclusion, inasmuch as Williams has alleged that Tucker's brief conflates arguments concerning the Clerk's Entry of Default and arguments concerning the Default Judgment itself, these issues are conflated in large part by this case's procedural history which saw concurrent pleadings and hearings on both the Clerk's Entry and Default Judgment issues, as well as a Motion for Reconsideration and Damages Hearing which were held before the Motion for Default was even granted. More importantly, under the so-called "balancing of the equities" which goes through Rule 55(c) and 60(b) analysis, the important facts and circumstances are the 6

12 exact same in support of Tucker's argument to set aside either the Clerk's Entry or the Default Judgment itself. II. The timeliness of Tucker's appeal. The Comments to Rule 55 of the Mississippi Rules of Civil Procedure clearly state that "when a judgment by default is entered, it is treated as a conclusive and final adjudication of the issues necessary to justify the relief awarded and is given the same effect as a judgment rendered after a trial on the merits," and therefore "[a] judgment entered pursuant to Rule 55(b) may be reviewed on appeal to the same extent as any other judgment." As stated above, obtaining a default judgment under Miss. R. Civ. P. 55 is a two-step process. "First, entry of default must be entered by the clerk of the court, which is obtained through a motion and supporting affidavits; then, the plaintiff must obtain a default judgment from the court." Brown v. Tate, 95 So. 3d 745, 2012 (Miss. Ct. App. 2012). A Clerk's Entry of Default is a step in the process towards obtaining a Default Judgment; it is not itself a final, appealable judgment. Nonetheless, Williams argues that Tucker has waived his Rule 55(c) arguments on appeal because Tucker did not appeal the Clerk's Entry of Default within thirty (30) days of entry. Williams, however, does not cite any case law supporting this proposition. Instead, Williams cites to two clearly distinguishable cases, Pruett v. Malone, and Belhaven Improvement Ass'n, Inc. v. City of Jackson, arguing that once Tucker filed his Motion for Reconsideration, the Order denying reconsideration was a "final judgment for purposes of appeal." 767 So. 2d 983, and 507 So. 2d 41, respectively. In both of these two cited cases, however, the motion to reconsider was filed to reconsider a final order of dismissal. Naturally, when the Order being reconsidered is a final judgment of dismissal, then the subsequent Order denying reconsideration would be a final judgment. In the present case, the Order being 7

13 reconsidered was not a final judgment, and therefore the Order denying reconsideration was not a final judgment. Williams Response spins the holdings in these two cases into a general rule that any Order which denies a Motion to Reconsider, even of an interim issue, is a final order which must be appealed within thirty (30) days or its arguments are waived. This is not an accurate statement of law, and this argument is without merit. Since Rule 55 explicitly states that a default judgment is a final judgment which may be reviewed on appeal to the same extent as any other judgment, and since the Clerk's Entry of Default is merely a step in the process towards obtaining a Default Judgment, it stands to reason that the methods and analysis employed by a trial judge in upholding the Clerk's Entry of Default are relevant, and reviewable, as part of the appellate review of the ultimate Default Judgment. Again, in the present case, the arguments and exhibits are the same, and were in possession of the trial judge as part of each decision. For these reasons, Tucker contends that the trial court's failure to set aside the Clerk's Entry of Default in this case is reviewable in the current appeal, just as the ultimate Default Judgment is reviewable, and this appeal should be decided on the merits of the substantive issues concerning the trial court's abuse of discretion. III. Williams' remaining procedural arguments. Williams' remaining arguments procedural arguments have more to do with the merits of the evidence and arguments than they do with procedural issues. First, Williams argues that Tucker is not entitled to 60(b) relief because he has not demonstrated "exceptional and compelling circumstances. Clearly this is a value judgment rather than a black and white procedural issue. Tucker contends now the same as he contended before the trial court, that the prior federal suit alone is an exceptional and compelling circumstance, either as a procedural bar 8

14 under compulsory counterclaim rules, or at the very least as evidence of colorable defense. Williams' obviously contends otherwise, but either way the value is subjective. What is objectively clear, however, is that the trial court record is totally void of any analysis from the court as to whether the circumstances surrounding this appeal were exceptional and compelling, and this lack of meaningful analysis from the court is part of Tucker's assignment of error. In the same vain, Williams argues that the court did not abuse its discretion when ruling on the Motion for Reconsideration since Tucker did not satisfy certain case law elements. Again, this is a value judgment made by Williams rather than a procedural bar. Clearly Tucker believes the denial of the original Motion to Set Aside Clerk's Entry was a clear error of law resulting in manifest injustice. Once again, however, the trial court record does nothing to show how these subjective issues were analyzed and decided by the trial court judge, and this absence of analysis and explanation are related to Tucker's contention that the trial court abused its discretion in upholding the Clerk's Entry and entering the Default Judgment. IV. Rule 55(c) and 60(b) factors all weigh in favor of setting aside Default. The relevant standards for upholding or disrupting a Clerk's Entry of Default and a Default Judgment have been briefed in Tucker's original Brief, and are well known to this Court. Tucker's original brief includes a number of quotes from well-known cases stating that Default Judgments should be freely set aside, and that the law favors allowing cases to proceed on their merits. This reply will not repeat previously argued points of fact and law, but will make some general responses to William's Response Brief, and will address some specific arguments. The Mississippi Supreme Court has recently analyzed and discussed Default Judgments more thoroughly and eloquently than undersigned counsel is able, in particular in Woodruff v. 9

15 Thames, 143 So. 3d 546 (2014), and in BB Buggies, Inc. v. Leon, 150 So. 3d 90 (2014). Tucker contends that there is no reason the present case should be resolved on appeal differently than these two recent cases. In the present case, as argued above, the relevant Orders from the trial court do little to nothing to show the court's methodology in refusing to set aside the Clerk's Entry and in entering the Default Judgment. The November 22 nd, 2013 Order contains an express error in stating that once Tucker's Motion to Set Aside Clerk's Entry was denied, the only remaining issue for the trial court to consider was damages. (T.R.E., 143). It does appear from the Court's questions during its hearing, and from one sentence in the November 22 nd, 2013 Order that the Court based its decision to uphold the default primarily, if not exclusively, on Tucker's failure to show "good cause" for not answering the Complaint. Likewise, Williams' Response Brief argues length that Tucker failed to provide good cause for default. In fact, Williams brief would hang the entire default issue on a handful of sound bites from the Motion to Set Aside Clerk's Entry hearing, and a blanket allegation that Tucker "repeatedly refused to give good cause" despite the fact that Tucker produced an affidavit and argument from counsel that the prior lawsuit engendered confusion as to what role he played in the underlying litigation. As argued in the original Brief, Tucker contends that good cause was shown during the Motion to Set Aside Clerk's Entry, at the hearing in opposition to William's Motion for Default Judgment, and in his Motion for Reconsideration. Furthermore, once again, the Court's Orders do nothing to show how the Court reached its conclusion that Tucker failed to show good cause, as no Order mentions the prior federal lawsuit at all, and no Order mentions the argument, and supporting affidavit, that the prior lawsuit led to confusion over Tucker's obligations to respond. All of this aside, however, in both Woodruff and BB Buggies, Inc., the Mississippi Supreme 10

16 Court found that the trial court abused its discretion in upholding a default judgment even though the Supreme Court agreed that in both instances, the trial court was correct in determining that the defaulting party had failed to establish the "good cause" element. Again, we are unfortunately without any clear statement from the court on how it reached its conclusion that Tucker failed to show satisfy the "good cause" element, and there is no mention whatsoever of whom the remaining factors weigh in favor. But Woodruff and BB Buggies stand for the proposition that lack of good cause basis for default on its own is insufficient in upholding a default judgment, and therefore the trial court abused its discretion. As for the colorable defense element, it clearly weighs in Tucker's favor. Tucker argues the ultimate colorable defense: that Williams' suit should be dismissed based on compulsory counterclaim rules. Failing that, Tucker has a clear liability defense that is evidenced in his prosecution of the prior federal suit, the fact that Williams paid Tucker money in the prior suit to settle the claim, and the fact that Tucker already has an expert report on liability from an accident reconstructionist. Williams' Response arguments seem to center argue the merits of Tucker's colorable defense rather than alleging their non-existence. Williams argues that the colorable defenses are mere conclusory statements, and that the accident reconstructionist report is unsworn, and therefore insufficient to support this element. Again, these are value judgment argument made by Williams. And once again, this is not a case where the colorable defense issues were properly analyzed by the trial court, under mandate, but were determined to be lacking. This is, instead, a case where there is no evidence whatsoever that Tucker's colorable defenses were ever even considered by the trial Court in reaching its decision to uphold the Default Judgment. The trial court did not analyze the accident reconstructionist report in reaching its conclusion. Nor did the trial court analyze the terms of the Release and the Order of 11

17 Dismissal with Prejudice from the federal lawsuit to determine the merits of the compulsory counterclaim argument as a meritorious defense. These omissions are part of the assignment of error raised in this appeal. Furthermore, as acknowledged by Williams in her Response Brief, for a defense to be colorable, it does not have to guarantee a defense verdict according to the BB Buggies holding. As stated in Woodruff: A defendant does not have to prove a defense for it to be "colorable." "Colorable" is defined as "appearing to be true, valid, or right." Black's Law Dictionary 282 (8th ed. 2004) (emphasis added). A "colorable claim" is defined as "[a] claim that is legitimate and that may reasonably be asserted, given the facts presented and the current law (or a reasonable and logical extension or modification of the current law)." Black's Law Dictionary 264 (8th ed. 2004) (emphasis added). Thus, a defense does not have to be proven to trial standards, nor must it be "compelling," as was improperly required by the trial court in this case, to be "colorable"; it merely needs to be "reasonable." Indeed, this Court has held that even a defense of "questionable" strength may be colorable. 143 So. 3d 546, 553 (Miss. 2014) As for the element of prejudice, the trial Court again did not address the issue in any of its Orders. Tucker would refer to the arguments in its original Brief regarding prejudice, in particular that delays in her case have been largely self-inflicted, and that she has already received an award that exceeds her alleged medical expenses from her workers compensation claim. Furthermore, Williams' prejudice does not outweigh the prejudice suffered by Tucker in the event that he is subject to a 3.2 million dollar verdict as a result of a case that should never have been allowed in the first place because of compulsory counterclaim issues. Lastly, the Woodruff decision states that it is error, and just plain problematic, that the trial court in that case did not consider the issue of prejudice in reaching its ultimate decision on the Default Judgment 12

18 issue. Id. That same error and problem exists in this case, not only for the issue of prejudice, but for almost every issue that required the Court's analysis. Concerning the compulsory counterclaim arguments raised in Williams' Response Brief, the arguments in Tucker's original brief, and the cases and rules cited therein speak for themselves. The two cases cited by Williams in her brief are clearly distinguishable, as Stinson Gulf Coast Trust and Bank Co. v. Stinson involves a scenario where the parties in opposition to one another were different then the parties involved in the prior claim which was alleged to be preclusive, and Liberto v. D.F. Stauffer Biscuit Co. does not even involved a prior dismissal with prejudice, as in the present case. Williams' was clearly required to bring her claim as a compulsory counterclaim in the original action. The vague language in the Release agreement about Williams reserving and not waiving causes of action does not trump the fact that Williams signed an agreed Order of dismissal with prejudice which terminated the lawsuit. Furthermore, whereas Williams would argue that this one paragraph from the Release put Tucker on notice that he was about to be a Defendant himself, the Release does not specifically reserve causes of action against Tucker himself, but is ambiguous as to whom the causes of action would be brought against. Again, these are value judgments that are argued by Williams, but were never addressed or determined by the trial court judge. V. Errors in the hearing on damages. Williams argues first that Tucker's assignments of error regarding the damages hearing are unsupported, and therefore should not be considered. This is of course totally inaccurate, as there are multiple legal authorities cited within this section of his Brief, and Tucker would refer generally to the arguments and authorities cited in his original brief rather than reasserted factual and legal arguments in this Reply. However, it is worth noting that the legal deficiencies 13

19 identified by Tucker underlying the assignments of error relate to the most basic and fundamental rules controlling the presentation of evidence and testimony on damages. The Court's award was almost entirely speculative, based on hearsay, and based on testimony from Williams' treating doctors who testified via deposition, but who were not qualified or tendered as experts during their depositions. It is a touchstone principle of damages law that an award for damages cannot be based on mere guesswork or speculation, and that expert testimony is required to support a claim of future medical damages. Graves v. Graves, 531 So. 2d 817 (Miss. 1988); McClatchy Planting Co. et. Al. v. Harris, 807 So. 2d 1266 (Miss. 2001); Courtney v. Glenn 782 So. 2d 162 (Miss. Ct. App. 2000); City of Jackson v. Spann, 4 So. 3d 1038 (Miss. 2009). CONCLUSION Tucker will not use this Reply brief to retread the same ground as his original brief. However, the seriousness of the issues involved in this appeal cannot be overstated. William Christopher Tucker, an ordinary citizen, involved himself in the world of civil lawsuit only after he himself was critically injured in this very same accident. He hired an attorney, brought a lawsuit, prevailed, and then participated in the settlement of dismissal of his case, believing that the entire matter was over forever. Now, after an initial, isolated incident of justifiable confusion over some papers which were served on him, Mr. Tucker is facing a 3.2 million dollar judgment with hardly any explanation from the trial court as to why he is not entitled to relief. Believing his case was over, Tucker did not comprehend that he could be sued from the same accident as the case that he effectively won in federal court via a favorable settlement. In its simplest terms, this appeal is about a simple mistake, forgivable under the law, which if not overturned on appeal will alter the course of a person's life. 14

20 It seems that a prevailing theme in Williams' Response Brief is that the arguments and evidence put forth by Tucker at the trial court level were unpersuasive and therefore the Default Judgment should be upheld. The problem, however, is that there is nothing in the record to suggest that the trial court made a judgment as to the persuasiveness of Tucker's arguments and evidence under a 55(c) or 60(b) analysis. What is clear is that the trial court possessed all the tools necessary, in the form of argument and exhibits, to make an informed decision, but instead issued blanket denials of Tucker's Motions to set aside the Clerk's Entry, and entered an Order granting Default Judgment with barely a mention of the merits of the dispute over whether Default was appropriate. Tucker has shown more than enough at the trial and appellate level to set aside the Default Judgment in this case, and the trial court abused its discretion in failing to do so. This is simply not a case where Tucker deserves the current sanction against him. RESPECTFULLY SUBMITTED, this the 12 th day of November, BY: WILLIAM CHRISTOPHER TUCKER, APPELLANT GAMMILL MONTGOMERY, PLLC BY: Andrew Rueff TOBY J. GAMMILL (MSB #100367) ANDREW RUEFF (MSB #103582) 15

21 CERTIFICATE OF SERVICE I, Andrew Rueff, attorney for Appellant, William Christopher Tucker, do hereby by certify that I have filed electronically with the MEC a true and correct copy of the foregoing Brief which was forwarded to the following: Chuck McRae, Esq. 416 East Amite Street Jackson, Mississippi Attorney for Gay St. Mary Williams Honorable Winston Kidd Circuit Court of Hinds County First Judicial District 407 East Pascagoula Street Jackson, Mississippi Circuit Court Judge, Hinds County, Mississippi So certified, this the 12 th day of November, Andrew Rueff ANDREW RUEFF (MSB #103582) 16