IN THE SUPREME COURT OF MISSISSIPPI ON APPEAL FROM THE CIRCUIT COURT OF RANKIN COUNTY, MISSISSIPPI CIVIL ACTION NO C

Transcription

1 E-Filed Document Jan :37: CA SCT Pages: 7 IN THE SUPREME COURT OF MISSISSIPPI QUALITY DIESEL SERVICE, INC. vs. VS. TIGER DRILLING COMPANY, LLC APPELLANT NO CA CA-01S87 APPELLEE ON APPEAL FROM THE CIRCUIT COURT OF RANKIN COUNTY, MISSISSIPPI CIVIL ACTION NO C APPELLANT'S RESPONSE TO MOTION FOR REHEARING OF COUNSEL: SUSAN D. McNAMARA (MBN 99572) WATKINS & EAGER PLLC 400 East Capitol Street (39201) Post Office Box 650 Jackson, Mississippi Telephone: (601) Telecopier: (601)

2 TABLE OF CONTENTS Table of Contents Table of Authorities Argument A. Introduction B. Law on Motion for Rehearing C. Response to Alleged Overlooked or Misapprehended Points of Law and Fact 4 Conclusion Certificate of Service

3 TABLE OF AUTHORITIES Cases: BuckJey v. Riley Mercantile Co., 124 So. 267 (Miss. 1929) D eposit Guar. Nat. B ank v. Biglan e, 483 So.2d 348 (Miss. 1986) Grace v. Pierce, 90 So. 590 (Miss. 1922) Trustmark N at. B ank v. Pike County N at. Bank, 716 So. 2d 61 8 (Miss. 1998) Statutes: Rule 40, Mississippi Rules of AppeDate Procedure " 4 Miss. Code Ann Miss. Code Ann

4 ARGUMENT A. Introduction Tills matter is on appeal from a disnllssal by the Circuit COUIt of Rankin County, of a Petition to Controvert a garnishment answer. On] anuary 7, 2016, tills COUIt rendered its decision in ti,is appeal, reversing ti,e ruling of ilie Circuit Court of Rankin County, and remanding tills action. In ilie decision, ti,e COUIt found ti,at tills was a case of first impression. On January 21, 2016, Tiger Drilling (A ppellee) filed its Motion for Rehearing. For the reasons stated below, Tiger Drilling's Motion should be dellled. B. Law on Motion for Rehearing A motion for rehearing is governed by Rule 40 of ti,e Mississippi Rules of Appellate Procedure. Such a motion must "call attention to specific errors of law or fact willch ilie opinion is thought to contai.n" and it is to be a "mere repetition of ti,e argwnent already considered by ti,e court." Tiger Drilling's Motion does not meet tills requirement, and should be denied. e. Response to Alleged Overlooked or Misapprehcndcd Points of Law and Fact Tiger Drilling argues ti,at tills Court overlooked or misapprehended several points oflaw, none of which are correct. The entire premise of ilie Motion is ti,at tills Court somehow treated Quality Diesel's Petition to Controvert as a renewal of its Judgment, but iliat is simply incorrect. Tiger Drilling first asserts tllat ilie "central holding" of tills Court's Opinion is that Quality Diesel, by its 'Petition to Controvert' wiiliin seven years after entry of ti,e underlying judgment, 'brought an action' to extend the lien of iliat judgment. (See Motion at p. 6). [-Jowever, ti,at is not ti,e "central holding" of tills case. The Court's Opinion made clear ti,at ilie issue on appeal was "whether a valid underlying judgment exi.sted (It the time ilie writs of garnishment were selved." (Opullon,,,9, emphasis Ul original). The Court did not fi.jld tllat Quality Diesel renewed ti,e Judgment by filing its petition to controvert as Tiger Drilling seems to argue; instead, ilie Court found tllat Quality Diesel's petition to controvert could proceed, because itwas filed witllin ti,e seven (7) year period - in otl,er words, Quality -4-

5 Diesel filed its petition to controvert (i. e. took "action") within the seven (7) year period, and the later expiration of the judgment has no bearing on that petition. The cases cited made by Tiger Dri.lli.ng are inapplicable to tlus case, as they all involve ti,e statute of linutations on collecting a debt from the original debtor after more than 7 years have passed. As tlus Court has made clear, tl1at simply is not ti,e issue. Tiger Dri.lli.ng cites Trustmark Nat. Bank v. Pike County Nat. Bank, 716 So. 2d 618 (Miss. 1998), in which this Court held that a judgment creditor extends a judgment lien by bringing an action to renew ti,e judgment. The Court in Trustmark was considering whether the automatic stay in bankruptcy tolled ti,e statute of li.mi.tations for collecting a judgment tl1at was enrolled prior to ti,e bankruptcy filing. The Court held ti,at the bank.j.uptcy automatic stay tolled the seven year for collecting a judgment. Similarly, Tiger Drilling cites Deposit Guar. Nat. Bank v. Biglane, 483 So.2d 348 (tv!iss. 1986), in wluch ti,e Court considered whetller fili.ng a fraudulent conveyance action served to renew a judgment. Finally, Tiger Dri.Ili.ng cites Buckley v. Riley Mercantile Co., 124 So. 267 (Miss. 1929), in which ti,e Court found that a notation on a recorded judgment of a filed suit to renew did not autllorize issuance of a writ of garnishment more tl1an seven years after ti,e underlying judgment was entered. Again, all o f ti,ese decisions deal with whetller such "action" could renew ti,e judgment for later collection efforts. Quality Diesel has never argued, nor did this Court find, that its Petition somehow served to renew ti,e judgment. These cases are easily distinguished from tlus case. Tiger Drilling next asserts that even if a judgment lien could be extended by action otl,er ti,an fili.ng suit to renew, Quality Diesel's Petition to Controvert is not such an action. In support, Tiger Drilling cites Grace v. Pierce, 90 So. 590 (Miss. 1922), which has already been argued before and considered by this Court. Again, tlus is not relevant to tlus action, in wluch ti,e Court found that ti,e issue is whetller ti,e Judgment was valid at ti,e time ti,e petition to controvert was filed. -5-

6 Finally, Tiger Drilling argues Miss. Code Ann , claiming that Quality Diesel cannot proceed as the statute references "and be appropriable to the satisfaction of the judgment", and the judgment is no longer subject to satisfaction. Although Tiger Drilling correctly cites , it completely ignores , the statute Quality Diesel is proceeding under. Pursuant to , if a plaintiff believes ti,e garnishee's answer is untrue, he may contest the answer, and the Court shall try the issue. If ti,e answer is found to be untrue, ti,e Court shall render judgment in favor of ti,e plaintiff. This Court has already considered the interplay of ti,ese statutes, finding that the issue is ti,e funds in the garnishee's hands at the time the garnishment proceeding was illitiated. Those may be "appropriable to the satisfaction of the judgment" although the judgment may now have expired. CONCLUSION Tiger Drilling's Motion for Rehearing nlisconstrlles tllis Court's ruling, in ti,at it alleges tllis Court somehow found Quality Diesel's Petition to Controvert renewed its underlying judgment. That assertion is nowhere in tllis Court's decision. Instead, tllis Court correctly found tl13t Quality Diesel's petition was filed within ti,e seven years ti,e judgment was valid, and that "action" was timely filed. Tiger Drilling's Motion tllerefore does not present any overlooked issue of fact or law, and must be dellied. Tllis the 28,h day of January, Respectfully subnlitted, QUALITY DIESEL SERVICE, INC. By its attorneys: WATKINS & EAGER PLLC By: / s/ SlIsan D. J\![cN,,/JIara SUSAN D. McNAMARA (MSB 99572) -6-

7 OF COUNSEL: SUSAN D. McNAMARA (MBN 99572) WATKINS & EAGER PLLC 400 East Capitol Street (39201) Post Office Box 650 Jackson, Mississippi Telephone: (601) Telecopier: (601) CERTIFICATE OF SERVICE I, Susan D. McNamara, certify that I have served a copy of the above and foregoing document to the following via filing with the MEC electronic filing system: Ms. Kathy Gillis, Clerk Mississippi Supreme Court P.O. Box 117 Jackson, Mississippi C. Dale Shearer Barry D. Hassell COPELAND, COOK, TAYLOR & BUSH, P.A. Post. Office Box 6020 Ridgeland, Mississippi Honorable William E. Chapman (via U.S. Mail) Rankin County Circuit Court Judge 301 E. Government Street Brandon, MS This the 28'h day of January, ls/susan D. M cnamara SUSAN D. McNAMARA -7-