Full Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2025-CA-00572-COA PARK AT AUTUMN RIDGE BD TIC LLC APPELLANT v. TESHA HILL-McDONALD APPELLEE DATE OF JUDGMENT: 05/30/2025 TRIAL JUDGE: HON. ADRIENNE ANNETT HOOPER- WOOTEN COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: ROBERT B. IRELAND III EMILY GRACE TATE ATTORNEYS FOR APPELLEE: DAMON RAMON STEVENSON PETER ANTHONY CARL STEWART NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: REVERSED, RENDERED, AND REMANDED - 09/15/2026 MOTION FOR REHEARING FILED: BEFORE WILSON, P.J., LAWRENCE AND WEDDLE, JJ. LAWRENCE, J., FOR THE COURT: ¶1. After falling at an apartment complex, Tesha Hill-McDonald filed a negligence complaint against Park at Autumn Ridge BD TIC LLC (“Park”), the alleged owner of the property. Park did not respond to the lawsuit, and the clerk entered a default against Park. After a hearing, the county court granted Hill-McDonald’s motion for a default judgment and awarded damages to Hill-McDonald. Park later filed a motion requesting that the default judgment be set aside and the case be dismissed, which was denied. Park appealed to the circuit court. The circuit court affirmed the county court’s decision, and the appeal is now before this Court. After review, we reverse the circuit court’s order, set aside the county court’s default judgment against Park, and remand to the county court for further proceedings. FACTUAL BACKGROUND ¶2. Hill-McDonald was on property allegedly owned by Park on or about January 5, 2020, when she “fell on steps that were uneven/broken while trying to avoid a dog that was tied near the stairs.” On May 14, 2021, approximately a year and a half later, Hill-McDonald filed a complaint alleging negligence against Park in the Hinds County County Court.1 She claimed Park had been negligent for failing to exercise an ordinary duty of care, failing to maintain a safe environment, failing to make repairs and maintain the premises in a safe manner, and failing to ensure that “dangerous animals” were properly restrained on the property. Hill-McDonald stated that her injuries were “serious, grievous, and permanent” and had caused “lost income” and caused her to incur “doctor, hospital, drug prescriptions, and other medically related expenses.” On June 9, 2021, Hill-McDonald filed a proof of service of process upon Agent Services of MS Inc. with the court. ¶3. Hill-McDonald filed an application for an entry of default against Park on October 13, 2021. On June 28, 2022, the clerk entered a default. On March 20, 2023, Hill-McDonald filed a motion for a default judgment awarding damages. A hearing was held on October 19, 1 The complaint also named “John Does 1-10” as defendants, describing them as “individuals and entities . . . who owned and managed the property where she was injured or who hold some responsibility for the damages she suffered.” 2 2023, and Hill-McDonald discussed the damages she incurred associated with her accident. Shortly after the hearing, the county court entered a default judgment ordering Park to pay Hill-McDonald $70,000 in damages. ¶4. On December 13, 2023, Park moved to set aside the default judgment after discovering the judgment while “refinancing the property.” In the motion, Park additionally asked that the claims against Park be dismissed because “Park was not the owner of the property at the time of the alleged injury, and therefore cannot be held liable for injuries sustained while they did not have care or control of the property.” Attached as exhibits were (1) an affidavit from a director of Registered Agent Legal Services stating there existed no record of receipt of process by Park from Hill-McDonald and (2) Park’s special warranty deed reflecting the date of purchase of the subject property as March 13, 2020. ¶5. On February 1, 2024, the county court held a hearing on Park’s motion to set aside the default judgment.2 Hill-McDonald called Ann James, a process server for Hill-McDonald’s attorney’s firm, to testify first. James testified that she recalled serving process on “Agent Services,” stating specifically: I was having trouble finding the address. I had passed it once. I turned around, and I came back. I passed it twice. On my third time I saw a gentleman at his mailbox, so I pulled over and asked him if this was 18349 Midway Road, and he responded, ‘Yes.’ I then asked him, ‘Are you with Agent Services?’ And he said, ‘Yes.’ And I told him I had paperwork to serve to him, and he did 2 The transcript contained in the record dates this hearing as occurring on April 1, 2024. However, the county judge is clear when concluding at the hearing that he would “make a ruling in February on this motion. It’s February 1st today.” 3 accept the paperwork. She also clarified that she did not get the gentleman’s name. ¶6. Park next called Elie Reiner, “a senior asset manager for a real estate investment company called Read Property Group” that managed Park. Reiner testified that Park became aware of the default judgment against it when it was “exploring a potential refinance of the property back in November of 2023.” The default judgment “came to [Park’s] attention” after a title search, and a worker at Park “immediately looped in legal.” Reiner contended that Park’s agent for service of process had never received a summons or complaint regarding the matter. He also testified that Park’s registered agent was a local affiliate of Registered Agent Legal Services called “Agent Services of Mississippi.” The court admitted Park’s warranty deed for the property into evidence and admitted a purchase and sale agreement and general assignment and assumption for identification only. The purchase and sale agreement clearly indicated Park did not purchase the property in question until February 28, 2020, almost two months after the alleged fall. The warranty deed was dated March 13, 2020. The deed was recorded in the Hinds County land records on March 18, 2020. ¶7. On February 21, 2024, the county court judge entered an opinion and order denying Park’s motion for relief. The judge found that “process was proper under Mississippi law[,]” citing testimony that Park “owned the property where the injury occurred” at the time of service and that process was served at the “publicly found address” for Agent Services, which “was indeed the registered agent of process for Park[.]” Ultimately, the county court 4 judge found that the record did indeed show that property ownership “changed between the date of the incident and the date of the timely filed and served summons and complaint,” but such was “not outcome determinative regarding a colorable defense to the underlying incident.” ¶8. Park appealed to the Hinds County Circuit Court on March 18, 2024. On April 15, 2025, the circuit court heard oral arguments from both parties. At the conclusion of the arguments, the circuit court judge found no error in the county court’s decision finding service of process was proper and declining to set aside the default judgment. A written order indicating such was entered on May 30, 2025. Park had appealed on May 14, 2025, in anticipation of the ruling. See M.R.A.P. 4(b) (“A notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day of the entry.”). STANDARD OF REVIEW ¶9. This Court reviews a trial court’s decision on a motion to set aside a default judgment under an abuse of discretion standard. Am. States Ins. Co. v. Rogillio, 10 So. 3d 463, 467 (¶8) (Miss. 2009) (citing Guar. Nat’l Ins. Co. v. Pittman, 501 So. 2d 377, 388 (Miss. 1987)). “Although default judgments are not favored in the law, it does not follow that a party seeking relief from a default judgment is entitled to that relief as a matter of right.” Id. (quoting Pointer v. Huffman, 509 So. 2d 870, 875 (Miss. 1987)). “[W]here there is a reasonable doubt as to whether or not a default judgment should be vacated, the doubt should 5 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)). Our appellate courts will only reverse if we are “convinced that the [c]ircuit [c]ourt abused its discretion.” Id. (quoting H & W Transfer & Cartage Serv. Inc. v. Griffin, 511 So. 2d 895, 899 (Miss. 1987)). ¶10. “Sufficiency of process and service of process are jurisdictional issues, which we review de novo.” Sandlin v. State Farm Mut. Auto. Ins. Co., 409 So. 3d 1199, 1204 (¶15) (Miss. Ct. App. 2025) (citing BB Buggies Inc. v. Leon, 150 So. 3d 90, 95 (¶6) (Miss. 2014)). DISCUSSION ¶11. This Court analyzes “[r]equests for relief from a default judgment . . . under Rules 55(c)[3] and 60(b)[4] of the Mississippi Rules of Civil Procedure.” Villavaso v. S.H. Anthony 3 Rule 55(c) provides that “for good cause shown, the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).” M.R.C.P. 55(c). 4 Rule 60(b) provides: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) fraud, misrepresentation, or other misconduct of an adverse party; (2) accident or mistake; (3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment 6 Inc., 309 So. 3d 587, 595 (¶26) (Miss. Ct. App. 2020) (quoting BB Buggies, 150 So. 3d at 101 (¶22)). This Court utilizes a “three-pronged balancing test” to determine whether a judgment should be set aside pursuant to Rule 60(b): (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 the prejudice which may be suffered by the plaintiff if the default judgment is set aside. BB Buggies, 150 So. 3d at 101 (¶23) (quoting Rogillio, 10 So. 3d at 468 (¶10)). 1. Good Cause for Default ¶12. Good cause, in the sense of our analysis, “does not pertain to good cause to set aside the default judgment.” Flagstar Bank, FSB v. Danos, 46 So. 3d 298, 307 (¶30) (Miss. 2010) (citing Rogillio, 10 So. 3d at 468). “Rather, the good-cause prong refers to whether the defendant can show good cause for its default.” Id. In the instant case, Park argues its “good cause” was never being served with the summons and complaint. As testimony established, the process server researched the proper place of service and, as she was arriving, was stopped by a man at the mailbox who indicated that he was with Agent Services. She gave the man the summons and complaint and filed a proof of service. ¶13. “If a process server has executed a return properly, there is a presumption that service should have prospective application; (6) any other reason justifying relief from the judgment. M.R.C.P. 60(b)(1)-(6). 7 of process has occurred.” Havard v. Hart, 393 So. 3d 1144, 1149 (¶9) (Miss. Ct. App. 2024) (quoting Collins v. Westbrook, 184 So. 3d 922, 929 (¶18) (Miss. 2016)). “[T]estimony by the contesting party, if believed, is sufficient to overcome the presumption and to support a finding that she was not served.” Villavaso, 309 So. 3d at 594 (¶21) (emphasis omitted) (quoting Long v. Vitkauskas, 228 So. 3d 302, 305 (¶9) (Miss. 2017)). However, a “trial judge may find that the testimony disputing proper service of process lacks credibility—and, thus, find that the presumption of proper service of process has not been rebutted.” Id. (citing McCain, 791 So. 2d at 842 (¶8)). ¶14. Park presented testimony from Reiner, a senior asset manager of the company. Reiner stated that Park never received any summons or complaint in this matter, citing their typical business model and procedure of notification of lawsuits. Hill-McDonald, again, also presented testimony from her process server. She also argued that Reiner had no personal knowledge of whether the service occurred while he worked at the company’s office in New Jersey. The county court judge heard testimony and arguments from both and did not find that Park successfully rebutted that presumption. Although our review of service of process is de novo, it is well established that a trial court, “in its role as the finder of fact, has the sole authority for assessing witness credibility.” Phillips v. City of Oxford, 368 So. 3d 317, 323 (¶20) (Miss. 2023) (citing City of Jackson v. Brister, 838 So. 2d 274, 279 (¶19) (Miss. 2003)). ¶15. Accordingly, this Court can find no “good cause” on Park’s part. However, a “lack 8 of good cause alone will not prevent the [c]ourt from setting aside a default judgment if the other two factors weigh in favor of setting it aside.” BB Buggies, 150 So. 3d at 102 (¶24) (citing Am. Cable Corp. v. Trilogy Comm’n Inc., 754 So. 2d 545, 556 (¶44) (Miss. Ct. App. 2000)). 2. Colorable Defense ¶16. Park argues that it has a colorable defense because it did not own or control the subject property at the time Hill-McDonald’s accident occurred. “A colorable defense is one that reasonably may be asserted, given the facts of the case and the current law.” Tucker v. Williams, 198 So. 3d 299, 312 (¶35) (Miss. 2016) (citing Woodruff v. Thames, 143 So. 3d 546, 553 (¶18) (Miss. 2014)). “A defense need not be compelling, be proven to trial standards, or be supported by sworn evidence in order to qualify as a colorable defense.” Id. The defense must only be a reasonable one. See id. “Indeed, this Court has held that even a defense of questionable strength may be colorable.” Id. (citing Rogillio, 10 So. 3d at 471). And crucially, “[a] defendant does not have to prove a defense for it to be colorable.” Woodruff, 143 So. 3d at 553 (¶18) (emphasis added). ¶17. Park’s argument contesting ownership is certainly colorable. In fact, our appellate courts have seen cases where parties have argued the same point; the argument is not new by any means. See Alpha Mgmt. Corp. v. Harris, 362 So. 3d 25, 34 (¶35) (Miss. 2023) (stating that “a premises owner does have the duty to keep the premises reasonably safe” and finding a party “owed no such duty, because it was not the premises owner” (quoting 9 Doe v. Hallmark Partners LP, 227 So. 3d 1052, 1056 n.7 (Miss. 2017))). It is inconsequential to this Court if Park proved such or whether we believe the argument is strong or compelling. See Tucker, 198 So. 3d at 312 (¶35) (citing Woodruff, 143 So. 3d at 553 (¶18)). It only matters that its colorable defense was reasonable. Id. ¶18. Further, the county court judge’s opinion relied on overruled precedent. The ruling stated that satisfying the colorable defense prong required a showing of “facts, not conclusions, and must do so by affidavit or other form of sworn evidence[,]” citing both Rush v. North American Van Lines Inc., 608 So. 2d 1205, 1210 (Miss. 1992), and Capital One Services Inc. v. Rawls, 904 So. 2d 1010, 1016 (¶19) (Miss. 2004). Those cases were both overruled in part by BB Buggies, which explicitly held, To the extent that Capital One and Rush stand for the proposition that sworn affidavits are required to show a colorable defense on a motion to set aside default judgment, we overrule those cases. . . . A vast degree of evidence falls on the spectrum between a “wish and a prayer” and “sworn affidavits,” and while more than a “wish and prayer” is required, sworn affidavits are not. BB Buggies, 150 So. 3d at 103 (¶29) (emphasis added) (internal quotation marks omitted). ¶19. “[T]he second factor, the presence of a colorable defense, outweighs the other two, and [our courts] have encouraged trial courts to vacate a default judgment where the defendant has shown that he has a meritorious defense.” BB Buggies, 150 So. 3d at 102 (¶25) (emphasis added) (quoting Allstate Ins. Co. v. Green, 794 So. 2d 170, 174 (¶9) (Miss. 2001)). This Court finds that Park presented a reasonable colorable defense against Hill- McDonald’s claims. That finding is dispositive of the analysis and—pursuant to the BB 10 Buggies case—controls the result. 3. Prejudice to Hill-McDonald ¶20. We will touch briefly on the prejudice Hill-McDonald would suffer if the default judgment is set aside. “The key inquiry in determining whether a plaintiff has suffered prejudice by the setting aside of the default judgment is the passage of time.” Tucker, 198 So. 3d at 316 (¶46) (quoting Stanford v. Parker, 822 So. 2d 886, 890 (Miss. 2002)). In BB Buggies, the court “recognized that the delay in resolving a claim can constitute prejudice” for injured plaintiffs. BB Buggies, 150 So. 3d at 104 (¶32). However, the court noted that past findings of prejudice had been in matters “of a sensitive nature” or “incidents that hinge on witnesses’ memories regarding a split second event, which fade over time.” Id. (citing Kumar v. Loper, 80 So. 3d 808, 816 (Miss. 2012); Guar. Nat’l Ins. Co., 501 So. 2d at 389). Hill-McDonald’s case is not one relying on recollections of witnesses or one of a sensitive nature. The record shows that Hill-McDonald would not likely suffer prejudice by having to litigate her claim. See Tucker, 198 So. 3d at 317 (¶51) (citing Green, 794 So. 2d at 174). CONCLUSION ¶21. Park maintains it was not the record owner of the property at the time of Hill- McDonald’s incident, certainly equipping them with a reasonable “colorable defense” exceeding that of a “wish and a prayer” to Hill-McDonald’s claim. See BB Buggies, 150 So. 3d at 103 (¶28). Further, “the second factor, the presence of a colorable defense, outweighs the other two, and [our courts] have encouraged trial courts to vacate a default judgment 11 where the defendant has shown that he has a meritorious defense.” Id. at 102 (¶25) (emphasis added) (quoting Allstate Ins. Co., 794 So. 2d at 174 (¶9)). This Court must follow supreme court precedent. See Beckham v. Beckham, 296 So. 3d 120, 124 n.4 (Miss. Ct. App. 2019) (stating “we must follow [s]upreme [c]ourt precedent” (quoting Rivera-Guadiana v. State, 71 So. 3d 1221, 1224 (¶14) (Miss. Ct. App. 2011))). Therefore, we reverse the circuit court’s order affirming the county court’s decision, render judgment setting aside the default judgment against Park, and remand this case to the county court for further proceedings consistent with this opinion. ¶22. REVERSED, RENDERED, AND REMANDED. BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS, McCARTY, EMFINGER, WEDDLE AND LASSITTER ST. PÉ, JJ., CONCUR. McDONALD, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. 12