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Ross v. Stewart

Court of Appeals of Mississippi

April 25, 2017


          DATE OF JUDGMENT: 11/16/2015





          WESTBROOKS, J.

         ¶1. Shellie R. Stewart filed a complaint for replevin of a mobile home in the possession of Earl and Maxcine Ross ("Rosses"). The Rosses filed a counterclaim alleging, among other things, breach of contract. The Circuit Court of Pike County dismissed the Rosses' counterclaim and scheduled a trial on the replevin action. The court granted the replevin and awarded possession of the mobile home to Stewart. The Rosses now appeal. After our review of the record, we affirm the judgment of the circuit court.


         ¶2. Genevieve Ross[1] owned a mobile home with her husband, Felder Ross, as joint tenants. She filed paperwork conveying title of the mobile home to herself following her husband's death. Stewart[2] purchased the title of the mobile home from Genevieve. The Rosses rented the mobile home from Genevieve for approximately five years. The Rosses contend they entered into an oral agreement with Stewart to purchase the mobile home for cash. Maxcine Ross testified that Stewart offered to sell the mobile home, at the price of $42, 000 payable in monthly installments of $600 per month, without interest, provided full payment was received within one year. However, if it was not paid within one year, the price would increase to $52, 000, with no interest charged. At trial, Stewart testified he was willing to sell, until the Rosses asked Stewart to finance the purchase of the home to allow them to pay rent. Stewart also testified that the Rosses wanted him to pay $300 dollars per month to keep the mobile home on their land, because Stewart was not legal owner of the land. However, Stewart rejected this agreement as well. Stewart and the Rosses testified that no money was ever paid to Stewart for the mobile home.

         ¶3. Stewart filed a complaint for replevin against Earl Ross. Earl filed his response, defenses, and a counterclaim alleging breach of fiduciary duties, breach of contract, breach of implied covenants of good faith and fair dealing, fraudulent misrepresentation and/or omission, negligent misrepresentation and/or omission, unconscionability, emotional distress, and conspiracy. Earl also moved to add Genevieve and Webster Chess[3] to the cause of action.

         ¶4. Stewart filed his answer, and Maxcine, Earl's wife, was added as a party defendant to the action. The circuit court ordered the parties to brief the issue of whether the Rosses' counterclaim could be entertained by the court at trial. The circuit court dismissed the counterclaim without prejudice and cited Finance America Private Brands Inc. v. Durbin, 370 So.2d 1356 (Miss. 1973), holding that damages must be sought after judgment on the issue of possession and not by way of a counterclaim. Additionally, the circuit court found that the Rosses could file their action following the court's decision on possession.

         ¶5. Although the circuit court ruled that there was no jurisdiction over the Rosses' counterclaim, the court allowed the Rosses to present their defense of breach of contract. Finding no binding agreement between Stewart and the Rosses, the circuit court found that Stewart properly obtained title of the mobile home and granted the replevin. The Rosses were ordered to vacate the mobile home immediately. Stewart was given seventy-two hours to retrieve the mobile home from its location, because it was determined that Stewart did not own the land on which the mobile home was located. Additionally, after the circuit court dismissed their counterclaim, the Rosses filed a complaint in the County Court of Pike County alleging five of the seven original claims contained in the counterclaim against Stewart, Genevieve, and Chess.


         ¶6. "Jurisdiction is a matter of law, which is reviewed de novo." Magee v. Covington Cty. Bank, 119 So.3d 1053, 1056 (¶10) (Miss. Ct. App. 2012) (quoting Entergy Miss. Inc. v. Burdette Gin Co., 726 So.2d 1202, 1204-05 (¶5) (Miss. 1998)).


         Whether the trial court erred in declining to accept jurisdiction of the counterclaim filed in response to the complaint in replevin.

         ¶7. Before the adoption of the Mississippi Rules of Civil Procedure (effective January 1, 1982), the Mississippi Supreme Court held that "after a careful consideration of the office of replevin, we have reached the conclusion that the Laws of 1975, ch. 508, do not permit a defendant to file a counterclaim or recoupment except for the specific statutory damages." Gen. Motors Acceptance Corp. v. Fairley, 359 So.2d 1386, 1388 (Miss. 1978). "A replevin action is a possessory action for specific property and not a suit for monetary damages." Id. "No provision is made under the above law for a judgment of money, except for the wrongful taking, detention, value of the specific property, or damages for wrongful suing out of the writ." Id.

         ¶8. Now, we acknowledge that Mississippi Rule of Civil Procedure 13 allows the court to consider compulsory and permissive counterclaims:

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. But the pleader need not state the claim if:
(1) at the time the action was commenced the claim was the subject of another pending action; or
(2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13; or
(b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.

         ¶9. The Rosses rely on Hall v. Corbin, 478 So.2d 253 (Miss. 1985), to support their assertion that their counterclaim should not have been dismissed. This Court has previously recognized the doctrines of ancillary and pendent jurisdiction. In Hall, the supreme court held:

We (and every other court in the land) have long held that once a court acquired actual subject matter jurisdiction of an action, other claims (whether asserted by the one or more of the original parties or by new or intervening parties), ancillary or pendent to the original claim could also be litigated in that action even though the ancillary or pendent claim standing alone may have been beyond the court's jurisdiction.

Caterpillar Fin. Servs. Corp. v. Burroughs Diesel Inc., 125 So.3d 659, 674 (¶88) (Miss. Ct. App. 2013) (quotation marks omitted) (quoting Hall, 478 So.2d at 255).

         ¶10. This Court has also held that "in future similar actions, it would be preferable for such a dispute as this one to be determined in one court proceeding." Id. We agree with this Court's previous ruling; however, this case presents a unique set of facts. The circuit court held a hearing to determine whether the Rosses' counterclaims were viable, and the circuit court held that the claims could possibly be brought after the issue of replevin. Further, after the circuit court dismissed the allegations in their counterclaim without prejudice, except to the extent asserted as "legal defenses to the issue of replevin, " the Rosses filed a complaint in the county court alleging five of the seven original claims contained in the counterclaim against Stewart, Genevieve, and Chess.

         ¶11. The circuit court held that whatever matters occurred during the replevin action did not affect the Rosses' counterclaim. Thus, the circuit court concluded that the counterclaim was not considered a compulsory counterclaim under Rule 13. We disagree with the lower court's ruling that the counterclaim did not fall under Rule 13. The Mississippi Supreme Court has held that "the face of the complaint and its well pleaded allegations are what courts look to when deciding whether they have authority to act at all . . . ." City of Durant v. Humphreys Cty. Mem'l Hosp./Extended Care Facility, 587 So.2d 244, 250 (Miss. 1991) (citations omitted); see also Miss. Const. art. 6, § 159(a) & (f).

         ¶12. In following precedent, we acknowledge that where a court is presented with a counterclaim, and the defendant raises a defense akin to the same counterclaim, the circuit court should exercise jurisdiction over the counterclaim.

         ¶13. However, while we find that the trial judge erred in dismissing the counterclaim, we find the circuit court corrected its error by hearing the facts and making a ruling regarding the Rosses' counterclaim addressing the formation of a contract and any assertions related ...

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