OF JUDGMENT: 11/16/2015
FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT HON. DAVID H.
STRONG JR. TRIAL JUDGE.
ATTORNEY FOR APPELLANT: CHARLES E. MILLER.
ATTORNEYS FOR APPELLEE: W. STEWART ROBISON MICHELLE WROTEN
IRVING, P.J., CARLTON AND WESTBROOKS, JJ.
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.
AND PROCEDURAL HISTORY
Genevieve Ross 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 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.
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 to the cause of action.
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
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.
"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)).
the trial court erred in declining to accept jurisdiction of
the counterclaim filed in response to the complaint in
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.
Now, we acknowledge that Mississippi Rule of Civil Procedure
13 allows the court to consider compulsory and permissive
(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.
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
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).
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
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).
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.
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 ...