Pierce v. Sorrells

376 So.3d 1257

Darian A. PIERCE, Appellant

v.James "Sam" SORRELLS, Appellee

NO. 2022-CP-01290-COA

Court of Appeals of Mississippi.

01/02/2024

LAMAR COUNTY CIRCUIT COURT, HON. ANTHONY ALAN MOZINGO, JUDGE

ATTORNEY FOR APPELLANT: DARIAN A. PIERCE (PRO SE)

ATTORNEY FOR APPELLEE: MICHAEL CLAYTON BAREFIELD, Long Beach

BEFORE CARLTON, P.J., WESTBROOKS AND EMFINGER, JJ.

EMFINGER, J., FOR THE COURT:

¶1. On November 28, 2022, the Lamar County Circuit Court entered an order denying Darian Pierce’s motion to set aside a judgment and his motion for sanctions, motion to strike, and motion for a trial "due to novation." In that same order, the trial court granted James Sorrells’ motion for sanctions. Pierce asserts that the circuit court erred in denying his motions and argues on appeal that he was not properly served with process for the hearing on the motion that resulted in the judgment that he was seeking to set aside. Further, Pierce claims that he was not in contempt at the time the underlying judgment was entered.

FACTS AND PROCEDURAL HISTORY

¶2. On May 11, 2021, a "Final Agreed Order and Judgments" (agreed judgment) was entered in this case in thé Lamar County Circuit Court. The agreed judgment memorialized an agreement that the parties reached in mediation. The agreed judgment stated in part that Sorrells was awarded a judgment against Pierce in the amount of $10,500 to be paid at the rate of $300 per month beginning June 1, 2021, until paid in full. Further, the agreed judgment stated that the agreement would remain confidential and sealed. Finally, the agreed judgment would not be executed upon as long as "the rate of $300, per month [was] paid for thirty-five months."

¶3. On September 26, 2022, Sorrells filed a "Petition to Unseal Judgment Herein, For Citation of Contempt and Sanctions and Entry of Lump Sum Judgment." In his petition, Sorrells claimed that Pierce made twelve payments of $300 each but failed to make any monthly payments since May 2022. Sorrells requested that the judgment be immediately unsealed and that he be awarded a "Lump Sum Judgment in the sum of $6,900.00." Finally, Sorrells sought an award of "all costs of court, costs of litigation, costs of collection, and attorney fees, in addition to monetary sanctions for contempt. A summons was issued on September 26, 2022, noticing Pierce that the hearing on Sorrell’s petition would be held on October 10, 2022 "in the Courtroom of the Honorable Judge Mozingo, Circuit Court Judge, at the Marion County Courthouse at 250 Broad St., Columbia, Mississippi …." Proof of service was filed on September 29, 2022, indicating that Pierce was personally served on September 28, 2022, in Lamar County, Mississippi. Pierce failed to appear at the hearing, and the circuit court entered an "Order of Contempt & Order to Unseal Judgment" on October 11, 2022. Finding that Pierce had violated the terms of the judgment and that he should be found in contempt, the order stated in part:

IT IS THEREFORE ORDERED AND ADJUDGED the judgment in this matter, filed under seal (Doc #37), is unsealed, and the clerk is directed to enroll the Judgment.

IT IS FURTHER ORDERED AND ADJUDGED Darien Pierce is found in contempt of this Court, and is ordered to be incarcerated until he purges himself of contempt by paying the remaining balance ($5,700) of the Agreed Final Order and Judgment, along with $1500 in additional attorney fees, and court costs of $35, for a total of $7,235.00. Said incarceration is held in abeyance until further order of the court.

¶4. On October 19, 2022, Pierce filed a motion to set aside this order claiming that he had not been properly served with process. He further asserted that he was no longer in contempt because he had paid $1,200 between the date that Sorrells’ petition was filed and the hearing on October 10, 2022, and was caught up with his monthly payment obligation. Finally, Pierce contends that while he was behind in his monthly payments, he was unable to pay as a result of his health issues.

¶5. On November 17, 2022, Sorrells filed a response to Pierce’s motion to set aside and admitted that Pierce had paid $1,200 before the hearing. Sorrells’ response also claimed that Tierce had been properly served with process; however, Pierce failed to appear at the hearing. In furtherance of his argument regarding service of process and monthly payments, Sorrells attached emails, text messages, and proof-of-payment documents to his response.

¶6. On November 22, 2022, Pierce filed an objection and motion to strike Sorrells’ response and a motion for sanctions. In his pleading, Pierce claimed that Sorrells’ attorney knowingly, maliciously, and wrongfully utilized and attached protected information to his response. As such, Pierce requested the response be stricken and sanctions ordered. On November 23, 2022, the same day as the hearing, Pierce filed a "Motion for Trial Due to Novation." In his pleading, Pierce claimed that his monthly payment obligations were current and up to date through November 2022.

¶7. A hearing on Pierce’s motions was held on November 23, 2022. The transcript from the hearing was less than ten pages, and Pierce represented himself. At the onset of the hearing, the court allowed Sorrells’ counsel to briefly explain what pleadings were before the court. Following Sorrells’ counsel’s remarks, the trial court turned to Pierce for his comments. The extent of Pierce’s participation in the hearing is detailed as follows:

BY THE COURT: Let’s stop right there. Thank you for that interpretation. Is that a correct assessment? Throw out the original agreed order, give you credit for what you paid and then go to trial?

BY MR. PIERCE: Do I need to be –

BY THE COURT: Mr. Pierce, you know what, you’re cute. Appreciate it. Thank you very much. I know you’re cute. Got your stuff ready. You’re representing yourself, final last minute motions but don’t embarrass me anymore.

BY MR. PIERCE: I just don’t know –

BY THE COURT: You put –

BY MR. PIERCE: Am I supposed to be sworn in? That’s all I’m asking.

BY THE COURT: You’re going to do it anyway? Stand and be sworn, Mr. Pierce.

BY MR. PIERCE: May I –

BY THE COURT: No. You may not open your mouth again. I don’t think you understand.

BY MR. PIERCE: I don’t know –

BY THE COURT: Well, I’m going to help you in just a second.

After the judge instructed Pierce not to open his mouth again, he did not, say another word for the remainder of the short hearing.

¶8. On November 28, 2022, the trial court entered an order stating,

The Court finds no basis for granting any of the Defendant’s motions, and they are all denied. The Court further finds the Defendant is ordered to pay an additional $1,500 to Plaintiff, which represents the attorney fees paid by Plaintiff for having to respond to the Defendant’s groundless pleadings.

On December 27, 2022, Pierce filed his notice of appeal from the November 28 order.

STANDARD OF REVIEW

[1, 2] ¶9. In BB Buggies Inc. v. Leon, 150 So. 3d 90, 95 (¶6) (Miss. 2014), the Mississippi Supreme Court wrote:

[W]e apply an abuse of discretion standard of review to the circuit court’s decision on a motion to set aside a default judgment. American States Ins. Co. v. Rogillio, 10 So. 3d 463, 467 (¶8) (Miss. 2009). Where there is reasonable doubt as to whether "a default judgment should be vacated, the doubt should 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)]).

ANALYSIS

¶10. Pierce is representing himself on appeal and claims that the trial court erred in failing to set aside the judgment entered on October 11, 2022. Pierce claims that he was not properly served with the summons for the hearing on Sorrells’ September 2022 petition to unseal the judgment, for a citation of contempt and sanctions, and for an entry of a "lump sum judgment." Pierce further claims that he was not in contempt of the agreed judgment on the date of the healing. Finally, Pierce claims he had "multiple recent physical hardships, including [six] broken foot bones, cancer and legal blindness that caused a brief interruption in gainful employment, which caused financial timing issues, not ‘willful, contumacious or malicious conduct’…."

¶11. As discussed above, a summons was issued on September 26, 2022, noticing Pierce that the hearing on Sorrells’ petition would be held on October 10, 2022, "in the Courtroom of the Honorable Judge Mozingo, Circuit Court Judge, at the Mar- ion County Courthouse at 250 Broad St., Columbia, Mississippi …." Proof of service was filed on September 29, 2022, indicating that Pierce was personally served on September 28, 2022, in Lamar County, Mississippi. Therefore, Pierce’s claim that he was not properly served with process is without merit.

¶12. Pierce claims that his monthly payment obligation to Sorrells was current on October 10, 2022. In his response to Pierce’s motion to set aside, Sorrells admitted that Pierce paid $1,200 before the hearing on October 10, 2022. While the record on appeal does not include the transcript from the hearing on Sorrells’ petition, at the hearing on Pierce’s motion to set aside on November 23, 2022, Sorrells stated:

[Pierce] was four months in arrears, when we filed first, and then he became up to date, prior to seeing you in court last, and I told you that then, that he had paid $1,200. He’s up to – and then he’s paid since. He’s paid twice more since.

The order held Pierce in contempt and ordered him to pay the remaining balance of $5,700. This balance recognizes and gives credit for the $1,200 payment that Pierce claimed he made before the hearing and further corroborates the assertions contained in his petition to set aside that he was current with his payments.¹

[3] ¶13. In his motion to set aside, Pierce also set forth a defense to justify his untimely monthly payments to Sorrells. Pierce argued that although he was caught up with his payments at the time of...