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Mullen v. Green Tree Financial Corporation- Mississippi

September 10, 1998

MARION C. MULLEN, D/B/A MULLEN TRAILER PARK
v.
GREEN TREE FINANCIAL CORPORATION- MISSISSIPPI



Sullivan, P.j., McRAE And Smith, JJ.

The opinion of the court was delivered by: Sullivan, Presiding Justice, For The Court

DATE OF JUDGMENT: 11/27/95

TRIAL JUDGE: HON. EUGENE BOGEN

COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION AFFIRMED IN PART; REVERSED AND REMANDED ON THE ISSUE OF ATTORNEY FEES - 9/10/98

¶1. On June 9, 1994, Green Tree Financial Corporation-Mississippi (hereinafter Green Tree) filed a Declaration in Replevin in the County Court of Washington County, Mississippi. Green Tree sought to take possession of a mobile home that it had a perfected security interest in which at the time was in the possession of trailer park landlord Mullen. On November 18, 1994, a hearing was conducted before Honorable Vernita Johnson. Judge Johnson issued a ruling on November 28, 1994, where she found that the landlord's lien was subject to all prior liens and ordered that immediate possession of the trailer be awarded Green Tree, together with all court costs.

¶2. Counsel for Mullen wrote a letter on December 5, 1994, to the Judge seeking a review of the ruling. After receiving this letter the Judge issued an amended ruling on April 4, 1995, which reversed the court's earlier position and required Green Tree to pay one year's rental plus attorney's fees in the amount equal to 25% of unpaid rent before taking possession of the home. A final judgment was signed confirming the court's amended ruling on May 1, 1995, and it was entered by the Clerk of the Court on May 10, 1995.

¶3. Green Tree appealed the ruling that was entered on May 10, 1995, to the Circuit Court of Washington County, Mississippi. The circuit Judge issued a ruling on August 17, 1995, reversing the May 10th judgment finding that the ruling of November 28, 1994, was treated as a judgment and that ruling was a final, appealable order. The court further found that the letter dated December 5, 1994, from Mullen's counsel was not a proper motion and the court was without authority to enter the amended ruling of April 4, 1995, and the Judgment of May 1, 1995, must be reversed. The circuit court also found that the amended ruling was in error on the merits as well.

¶4. The underlying facts of this case are not in dispute. On or about May 1, 1990, two individuals, Ronnie and Tonya Sims, entered into a Lease with Mullen, proprietor of a trailer park doing business as Mullen Trailer Park. The lease agreement provided for monthly rental of ninety dollars ($90.00) per month for the parcel of land on which the mobile home sits. In May, 1990, the Sims executed a retail installment contract in favor of Green-Tree and on May 21, 1990, a financing statement evidencing Green Tree's security interest in the trailer was filed for record. The Sims abandoned the mobile home and left unpaid rent owed to the Mullen Trailer Park.

¶5. Green Tree filed a Declaration In Replevin seeking possession of the manufactured home which was in the possession of the Mullen Trailer Park. Green Tree also requested the county court to grant it a judgment against Mullen for all attorney fees and costs incurred in bringing the action. Mullen answered the Declaration arguing that the trailer park has a landlord lien on the home for unpaid rent. On this appeal there are three assignments of error Mullen requests this Court to consider. Standard of Review

¶6. Since all three issues involve questions of law as opposed to a finding of fact this Court will apply a de novo standard of review. Par Indus., Inc. v. Target Container Co., 708 So. 2d 44, 47 (Miss. 1998); Cummings v. Benderman, 681 So. 2d 97, 100 (Miss. 1996); Ford v. Holly Springs Sch. Dist., 665 So.2d 840, 843 (Miss. 1995). This Court must review the lower court's ruling under a de novo standard of review. The only issues to be resolved are procedural matters concerning the Mississippi Rules of Civil Procedure or a matter of law.

I.

ΒΆ7. The key question that needs to be decided first is if the first ruling by the county court Judge was a final judgment. Green Tree contends that the November 18, 1994 ruling was a final judgment and since no motion to amend or notice was timely filed, that judgment remained in effect and all subsequent actions of the county court are void and without effect. Alternatively, Mullen argues that the November 18th ruling was not a final judgment and the county court Judge has authority to amend her ruling at anytime prior to the entry of the final judgment. ...


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