SUPREME COURT OF MISSISSIPPI

Transcription

1 SUPREME COURT OF MISSISSIPPI EDWARD JOHNSON, D/B/A F&E FARMS ) ) APPELLANT/PLAINTIFF ) V. ) ) NO.2012-CA PARKER TRACTOR & IMPLEMENT CO., INC. APPELLEE/DEFENDANT AND SENTRY SELECT INSURANCE COMPANY APPELLEE/GARNISHEE ) ) ) ) ) ) ) ) ) ) APPEAL FROM AN ORDER GRANTING MOTION TO FIND ENFORCEMENT OF JUDGMENT TIME-BARRED AND QUASHING WRIT OF GARNISHMENT FROM THE CIRCUIT COURT OF COAHOMA COUNTY, MISSISSIPPI APPELLEES' BRIEF ORAL ARGUMENT REQUESTED JOHN B. GILLIS MISSISSIPPI BAR N~ ATTORNEY FOR AP~ JOHN B. GILLIS ATTORNEY-AT-LAW 221 MARKET STREET POST OFFICE BOX 185 WATER VALLEY, MISSISSIPPI (601)

2 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court may evaluate possible disqualification or recusal. Parker Tractor & Implement Co., Inc U.S. Highway 61 Tunica, Mississippi Deere & Co. John Deere Road Moline, Illinois Sentry Select Insurance Co North Point Drive Stevens Point, Wisconsin John B. Gillis Attorney-at-Law Post Office Box 185 Water Valley, MiSSissippi Edward Johnson Clarksdale, Mississippi Dana J. Swan Chapman, Lewis & Swan Post Office Box 428 Clarksdale, Mississippi Honorable Albert B. Smith, III Circuit Judge Post Office Box 478 Cleveland, Mississippi Ken R. Adcock, Esquire Adcock & Morrison Post Office Box 3308 Ridgeland, Mississippi rj of I;,. )It; JOHN B. GILLIS

3 TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS... i TABLE OF CONTENTS.. '"... "... ii TABLE OF AUTHORITIES... iii STATEMENT OF THE ISSUE... 1 STATEMENT OF THE CASE... "... "... 1 SUMMARY OF THE ARGUMENT... 6 ARGUMENT... 7 PRINCIPAL ARGUMENT... 7 REBUTTAL ARGUMENT Johnson's argument that county court order denying summary judgment in First National Bank of Clarksdale v. Johnson stayed all proceedings in the Johnson v. Parker Tractor circuit court case Johnson's argument that the county court "enjoined" him from collecting on the judgment in the Johnson v. Parker Tractor circuit court case Johnson's argument that supreme court order granting the motion for interlocutory appeal in the Deere & Co. v. First National Bank case and staying proceedings in Deere & Co. v. First National Bank stayed proceedings in Johnson v. Parker Tractor Johnson's argument that his motion to clarify/amend the mandate in Parker Tractor & Implement Co. v. Johnson, No. 98-CA SCT stayed the mandate and therefore stayed judgment enforcement proceedings Johnson's argument that Parker Tractor and Sentry are judicially estopped from asserting the statute of limitations defense CONCLUSION CERTIFICATE OF SERVICE... '" '"... '" ii

4 TABLE OF AUTHORITIES CASES Page Baldwin v. Holliman, 913 So. 2d 400 (Miss. App. 2005) Deere & Co. v. First Nat'l Bank of Clarksdale, 12 So. 3d 516 (Miss. 2009)... 11,12,13,15,18,21 Deposit Guar. Nat'l Bank v. Biglane, 427 So. 2d 945 (Miss. 1983)... 7,8,10,25 Dockins v. Allred, 849 So. 2d 151 (Miss.2003) Franklin Corp. v. Tedford, 18 So. 3d 215, (Miss. 2009) Glass v. Glass, 726 So. 2d 1281 (Miss. App. 1998) Grace v. Pierce, 127 Miss. 831, 90 So. 590 (1922)... 8,9,18,25 Harveston v. State, 493 So. 2d 365 (Miss. 1986) In re Estate of Richardson, 903 So. 2d 51 (Miss. 2005) Kimbrough v. Wright, 231 Miss. 855, 97 So. 2d 362 (1957)... 7 Long v. Memorial Hasp. at Gulfport, 969 So. 2d 35 (Miss. 2007) Miss. Dept. of Public Safety v. Stringer, 748 So. 2d 662 (Miss. 1999)... 10,25 Moody & Williams v. Dye, 125 Miss. 770, 88 So. 332 (1920)... 9,25 Oakwood Homes Corp. v. Randall, 824 So. 2d 1292 (Miss. 2002) iii

5 Rankin v. American General Finance. Inc., 912 So. 2d 725 (Miss. 2005) State Farm Mutual Automobile Ins. Co. v. Sampson, 324 So. 2d 739 (Miss. 1975) Street v. Smith, 85 Miss. 359, 37 So. 837 (1905)... 7 Trustmark Nat'l Bank v. Pike County Nat'l Bank, 716 So. 2d 618 (Miss.1998)... 8,10 Townes v. Rusty Ellis Builder, Inc., 98 So. 3d 1046 (Miss. 2012)... 6,7 Young v. Hooker, 753 So. 2d 456 (Miss. App. 1999)... 7,25 STATUTES MISSISSIPPI CODE ANNOTATED (Supp. 2012)... 10,24,25 MISSISSIPPI CODE ANNOTATED (Supp. 2012)... 1,5,6,7,8,21,25 PROCEDURAL RULES Rule 5 of the MIssIssIPPI RULES OF ApPELLATE PROCEDURE 14,15 Rule 8 of the MIssIssIPPI RULES OF ApPELLATE PROCEDURE 16,17 Rule 27 of the MIssIssIPPI RULES OF ApPELLATE PROCEDURE 16,17,23,26 Rule 40 of the MIssIssIPPI RULES OF ApPELLATE PROCEDURE 16,17,23,26 Rule 41 of the MIssIssIPPI RULES OF ApPELLATE PROCEDURE Rule 60 of the MIssIssIPPI RULES OF CIVIL PROCEDURE , 21 iv

6 STATEMENT OF THE ISSUE Whether the trial court erred in granting Sentry Select Insurance Company's and Parker Tractor & Implement Company's motion to find judgment enforcement time-barred on the grounds that the statute of limitation for enforcement of a domestic had expired. STATEMENT OF THE CASE Nature of case. This case involves the trial court granting a motion to find judgment enforcement time-barred and quashing a writ of gamishment served on Sentry Select Insurance Company to collect on the judgment Johnson obtained against Parker Tractor & Implement Company on 1 November 1996, as amended on 18 February The trial court found hatthe seven year limitations period establish by MIssIssIPPI CODE ANNOTATED section (Supp. 2012) lapsed before Johnson had the writ issued or renewed the judgment, and that judgment enforcement activities were time-barred. Facts, course of proceedings, and disposition. Facts Johnson's recitation offacts includes many immaterial and insignificant facts. There are only thirteen facts which are pertinent to appreciating the procedural posture, understanding the trial court's ruling, and deciding this case, to-wit: Fact 1. The original judgment was entered on 1 November Post trial motions were filed timely by Parker Tractor on 8 November The order on the post trial motions was entered on 18 February ParkerTractorfiled timely a notice of Significance Started 10-day stay period. Started post trial motions stay. Triggered time for filing appeal and triggered running of section statute of limitations. Stayed judgment enforcement and 1

7 appeal and bond on 18 March The final appellate opinion in Parker Tractor v. Johnson, No. 98-CA SCT was entered on 10 January The mandate in Parker Tractor v. Johnson, No. 98-CA SCTwas entered on 31 January The mandate was never recalled. 8. Neither this court nor the circuit court entered an order in Johnson v. Parker Tractor staying judgment collection proceedings after the issuance of the mandate. 9. Johnson never renewed the judgment. 10. Section statute of limitations expired on 2 January Johnson never attempted to execute on the judgment either on the appeal bond or against the assets of Parker Tractor. 12. Johnson did not have issued a writ of garnishment directed at Sentry Select Insurance Company until 16 October Johnson never obtained a judgment on his writ of garnishment and the garnishee's response. tolled running of section statute of limitations. 28 days ofthe statute of limitations expended. Completed appellate litigation. Directed execution on judgment and triggered running of section statute of limitations. Six years, eleven months, and two days remained on statute of limitations making 2 January 2009 the terminal day for the limitations period. Judgment execution not stayed. Judgment execution not stayed. Seven-year statute of limitations never extended. Judgment lapsed. Judgment collection activities time-barred. Nothing collected on judgment. Writ of garnishment not issued until after the limitations period had expired. Even if the writ had been issued within the limitations period, issuance of writ does not extend statute of limitations. Johnson never secured authority to execute on writ of garnishment. Even if a garnishment judgment had been obtained within the limitations period, a garnishment judgment 2

8 does not extend statute of limitations; the main judgment must be renewed to extend period of viability for judgment. The above facts can be distilled to the following three outcome determinative facts: (1) The seven-year statute of limitations for enforcement of a domestic judgment ran for 28 days between the entry of the order on post trial motions (18 February 1998) and the filing of the notice of appeal and appeal bond (18 March 1998); (2) there were six years, eleven months, and two days remaining on the statute of limitations when the mandate in Parker Tractor v. Johnson, No. 98-CA SCT was entered on 31 January 2002, making 2 January 2009 the terminal dayforthe limitations period; and (3) Johnson did not renew his judgment on or before 2 January 2009 or at any other time. The following time line graphically depicts the key dates: 16 OCT 2009 Writ of Garnishment Issued 2 JAN 2009 SOL Expires 31 JAN 2002 Supreme Court Mandate 10 JAN 2002 Supreme Court Opinion Affirmed 18 MAR 1998 Appeal Bond and Notice of Appeal 18 FEB 1998 Amended Judgment I Order on Post Trial Motions SOL Running 6 Years 11 Months 2 Days from mandate to SOL terminal day SOL Tolled 3 Years 10 Monlhs 13 Days from notice of appeal to mandate issue date. SOL Running 28 Days 11 NOV day auto stay ends 1 NOV 96 Judgment 3

9 Course of proceedings and disposition Johnson had a writ of garnishment issued on 16 October 2009 directed at Sentry Select Insurance Company (Sentry) [R 30; RE. 8] for enforcement of the judgment Johnson obtained against Parker Tractor & Implement Company (Parker Tractor) on 1 November 1996, as amended on 18 February The writ was served on Sentry on 20 October [R 32, 35; RE. 10] Parker Tractor served a motion to find judgment enforcement time-barred on 16 November [R 36] Sentry served its answer to the writ of garnishment objecting to the writ on 16 November 2009 and set-up the statute of limitations defense. (Sentry's answer to the writ of garnishment was mis-captioned with the First National Bank v. Johnson, No. 14-CO (County Ct. Coahoma Co., Miss.) case caption, but it was served on Johnson's lawyer and caused no confusion as shown by Johnson's filings after 16 November 2009 responding to Sentry's pleading. The parties have filed a Rule 1 O( e) stipulation to modify the record adding Sentry's answer to the writ of garnishment to the record.) Johnson responded to Parker Tractor's and Sentry's responses and objections to the writ of garnishment on 21 December 2009 [R 46] and with supplemental responses on 21 April 2010 and 13 May [R 55 and 92] Sentry supplemented its answer to the writ of garnishment on 16 February 2012 reiterating the statute of limitations defense. [R 120]. While Johnson had issued a writ of garnishment and served it on the garnishee, the record shows Johnson never obtained a garnishment judgment on the writ of garnishment served on Sentry. The record shows that Johnson never renewed his judgment. The trial court issued an order entered on 14 September 2012 sustaining Sentry's objection and granting Parker Tractor's motion to find judgment enforcement time-barred. 4

10 [R 127; RE. 24] The trial court found hat the seven-year limitations period established by MIssIssIPPI CODEANNOTATED section (Supp. 2012) lapsed before Johnson had the writ issued and that judgment enforcement activities were time-barred because Johnson did not renew his judgment before the statute of limitations expired. [R ; RE ] Johnson did not file a motion to reconsider the order raising the issues he now presents on appeal. Johnson filed his notice of appeal on 8 October 2012 appealing the order finding judgment enforcement time-barred and quashing the writ of garnishment. [R 133; RE. 30] The clerk of this court issued the briefing on 12 February 2013 making the deadline for the filing of Johnson's brief Monday, 25 March After filing three motions for extension of time and getting orders granting those motions, Johnson filed his appellant's brief on 24 May

11 SUMMARY OF THE ARGUMENT The standard of review is de novo for questions concerning a statute of limitations. Townes v. Rusty Ellis Builder. Inc., 98 So. 3d 1046,,-r8 (Miss. 2012). MISSIssIPPI CODE ANNOTATED section (Supp. 2012) sets a seven year statute of limitations for enforcement of domestic judgments. After the entry of the judgment in this matter on 1 November 1996, Parker Tractor filed timely post trial motions which stayed the running of the statute. [R 4; RE. 5] The trial court entered its order on the post trial motions on 18 February [R 5; RE. 6] Parker Tractor filed its notice of appeal and appeal bond on 18 March 1998 [R 5; RE. 6], and the clerk of this court assigned case number 98-CA SCT to the appeal. The section seven-year statute of limitations ran for 28 days between the entry of the order on post trial motions and the filing of the notice of appeal and appeal bond. There were six years, eleven months, and two days remaining on the statute of limitations when the mandate in Parker Tractor v. Johnson, No. 98-CA SCT was entered on 31 January 2002, making 2 January 2009 the terminal day for the limitations period. The mandate was never recalled or stayed. Neither the Supreme Court of Mississippi nor the circuit court entered an order staying judgment enforcement activities. Johnson did not renew his judgment on or before 2 January 2009 or at any other time. The circuit court's order finding enforcement of Johnson's judgment time-barred should be affirmed because Johnson did not renew his 1998 amended judgment prior the section statute of limitations expiring on 2 January

12 ARGUMENT Appellees' Principal Argument The standard of review is de novo for questions concerning a statute of limitations. Townes v. Rusty Ellis Builder. Inc., 98 So. 3d 1046, ~8 (Miss. 2012). "All actions founded on any judgment or decree rendered by any court of record in this state, shall be brought within seven years next after the rendition of such judgment or decree, and not after, and an execution shall not issue on any judgment or decree after seven years from the date of the judgment or decree." MIss. CODE ANN (Supp. 2012)(limitations applicable to actions founded on domestic judgments or decrees). In Mississippi, a judgment has a life of seven years. Young v. Hooker, 753 So. 2d 456, ~12 (Miss. App. 1999). The running of the seven year statute of limitations not only defeats and extinguishes any remedy of the judgment creditor, but also defeats and extinguishes the debt itself. MIss. CODE ANN ; Young v. Hooker, supra, at ~13. "The effective method to extend the judgment lien is by filing another suit upon the judgment before the expiration of 7 years from the date of the rendition thereof." Kimbrough v. Wright, 231 Miss. 855, 857, 97 So. 2d 362, 363 (1957). A judgment lien, "can be extended by the filing of another suit upon the judgement before the expiration of seven years from the date of the rendition thereof, and in no other manner." Deposit Guar. Nat'l Bank v. Biglane, 427 So. 2d 945, 952 (Miss. 1983), citing Street v. Smith, 85 Miss. 359, 364, 37 So. 837, 838 (1905). (Emphasis supplied.) (NOTE: Section was amended effective 1 July to allow for renewing a judgment with the filing and service on the judgment debtor of a "notice of renewal of judgment or decree" in lieu of filing a separate civil action to renew a judgment. This alternative procedure for renewing a judgment is not implicated in the 7

13 instant case.) Enforcement or renewal of a judgment must be done within a seven year time frame, but that seven year period is not necessarily seven consecutive years. Trustmark Nat'l Bank v. Pike County Nat'l Bank, 716 So. 2d 618, ~31 (Miss. 1998). The time begins to run when the judgment lien is filed and is stopped each time the execution on the judgment is stayed. Id. "The only way for a judgment creditor to extend a judgment lien for an additional seven year time period is to bring an action to renew the judgment before the original seven year period expires." lq. Under MIssIssIPPI CODE ANNOTATED section , after seven years a judgment as well as an execution thereon effectively lapses. Deposit Guar. Nat'l Bank v. Biglane, 427 So. 2d at 952. "The law is clearly established in this state that a garnishment proceeding is no longer valid... after lapsing of the judgment upon which garnishment is issued." Id. at 952. The procurement of a writ of garnishment before the running of the statute of limitations for enforcement of a judgment does not toll or extend the statute of limitations. In Deposit Guaranty v. Biglane, the Mississippi supreme court addressed this legal standard citing Grace v. Pierce, 127 Miss. 831, 90 So. 590 (1922). In Grace v. Pierce, the court held that the issuance of a writ of garnishment before the expiration of the judgment enforcement limitations period does not serve to extend or keep alive the lien of a judgment. Grace v. Pierce, 90 So. at 592 ("the issuance of writs of garnishment before the bar of the statute attached did not serve to extend or keep alive the lien of these judgments"). The Grace v. Pierce court explained: And as the judgment lien is created by the final decision of a court, so it can only be renewed or extended by a similar process. The lien of a judgment can be extended by the filing of another suit upon the judgment before the expiration of 8

14 seven years from the date of the rendition thereof, and in no other manner. Grace v. Pierce, 90 So. at 592. A valid judgment is essential to the validity of a garnishment proceeding, and when a judgment upon which a writ of garnishment is founded in extinguished by the bar of the statute of limitations, the garnishment proceedings likewise fail. Grace v. Pierce, 90 So. at 592. Quoting Moody & Williams v. Dye, 125 Miss. 770, 88 So. 332 (1920), the Grace v. Pierce court explained further: The garnishment proceedings grow out of and are incidental to the main judgment, and a judgment against a garnishee rests upon the main judgment which gives it life, and when the main judgment is annulled the garnishment judgment must fall with it. The garnishment judgment is only for the purpose of enforcing the payment of the main judgment, and ifthere be no main judgment to enforce because of its annulment, then the purpose and life of the judgment against the garnishee is ended. Grace v. Pierce, 90 So. at 592. Johnson secured his amended judgment against Parker Tractor on 18 February 1998 when the order on post trial motions was entered. Parker Tractor filed its notice of appeal and supersedeas bond on 18 March This stayed judgment enforcement until the mandate of this court was entered on 31 January The section seven-year statute of limitations ran for 28 days between the entry of the order on post trial motions on 18 February 1998 and the filing of the notice of appeal and appeal bond on 18 March There were six years, eleven months, and two days remaining on the statute of limitations when the mandate in Parker Tractor v. Johnson, No. 98-CA SCTwas entered on 31 January 2002, making 2 January 2009 the terminal day for the limitations period. The mandate was never recalled or stayed. 9

15 Neither this court nor the circuit court entered an order staying judgment enforcement activities. Johnson did not renew his judgment on or before 2 January 2009 or at any other time. "The only way for a judgment creditor to extend a judgment lien for an additional seven year time period is to bring an action to renew the judgment before the original seven year period expires." Trustmark Nat'l Bank v. Pike County Nat'l Bank at ~31. Johnson did not renew his judgment on or before 2 January Thus, the statute of limitations for enforcing the judgment expired on 2 January By the time Johnson got around to having a writ of garnishment issued on 16 October 2009, the section imitations period had already expired and all judgment enforcement activities were timebarred. Deposit Guar. Nat'l Bank v. Biglane, 427 So. 2d at 952 (under section , after seven years judgment as well as execution thereon lapses). "The completion of the period of limitation prescribed to bar any action, shall defeat and extinguish the right as well as the remedy." MIss. CODE ANN (Supp. 2012). On 2 January 2012, Johnson's right to enforce and collect on his judgment was extinguished by the running of the statute of limitations. "The law is clearly established in this state that a garnishment proceeding is no longer valid... after lapsing ofthe judgment upon which garnishment is issued." Deposit Guar. Nat'l Bank v. Biglane, 427 So. 2d at 952. Where the main judgment has been annulled, any garnishment proceedings are a nullity. "The fact that a barred claim is a just one or has the sanction of a moral obligation does not exempt it from the limitation period. These statutes of repose apply with full force to all claims and courts cannot refuse to give the statute effect merely because it seems to operate harshly in a given case." Miss. Dept. 10

16 of Public Safety v. Stringer, 748 So. 2d 662,,-r13 (Miss. 1999). Based on the undisputed facts and the law, the statute of limitations expired on 2 January 2009, and on that date the judgment lapsed, the judgment debt was extinguished, and enforcement of the judgment and any related garnishment action became time-barred. In response to Johnson's writ of garnishment, Parker Tractor filed a Rule 60 motion for relief from the judgment on the grounds that judgment enforcement was time-barred. [R 36] Sentry answered Johnson's writ of garnishment asserting the statute of limitations defense. Sentry's supplemental filing also asserted the statute of limitations defense. [R 120] In responding to Johnson's 16 October 2009 writ of garnishment, Sentry and Parker Tractor followed the instructions of the Mississippi supreme court set out in Deere & Co. v. First National Bank of Clarksdale. Deere & Co. v. First Nat'l Bank of Clarksdale, 12 So. 3d 516,,-r 26 (Miss. 2009)("... attacks on a judgment are properly within the purview of Rule 60 of the MIssIssIPPI RULES OF CIVIL PROCEDURE."). The trial court ruled correctly that the limitations period had expired barring judgment enforcement activities. The trial court should be affirmed. Appellees' Rebuttal Argument Johnson's argument that county court order denying summary judgment in First National Bank of Clarksdale v. Johnson stayed all proceedings in the Johnson v. Parker Tractor circuit court case. Johnson's argument that the county court order staying proceedings in county court during the interlocutory appeal of the county court's order denying a motion for summary judgment [R 52; RE. 12] also stayed proceedings in circuit court is off the mark. The order itself does not even purport to extend to the circuit court case because the county court order reads in pertinent part: "Should Deere & Company 11

17 petition for interlocutory appeal and should that petition be granted, this matter will be stayed pending the outcome of the interlocutory appeal." (Emphasis supplied.) [Hearing Transcript p. 18, I. 20 thru p. 19, I. 5; Hearing Exhibit 8 to Transcript of 22 June 2012 Hearing; R. 52; R.E. 12]. The Mississippi supreme court noted in its opinion in the Deere & Co. v. First National Bank case that the trial court's stay only related to the county court case. Deere & Co. v. First Nat'l Bank of Clarksdale, 12 So. 3d 516,,-r21. The court in Deere & Co. v. First National Bank also found that the county court could not prevent Johnson from collecting on his judgment in the circuit court case. Deere & Co. v. First Nat'l Bank of Clarksdale, 12 So. 3d 516,,-r,-r24, 26. Thus, the question concerning the scope of the county court's authority over a circuit court judgment has been resolved. In summary, the plain language of the county court's order did not stay any proceedings except for the proceedings in county court. In addition, the Mississippi supreme court found on interlocutory appeal of that order that the county court had no authority to prevent Johnson from collecting on the judgment in this case. Johnson's argument that the county court order stayed proceedings in the circuit court case has no merit. Johnson's argument that the county court "enjoined" him from col/ecting on the judgment in the Johnson v. Parker Tractor circuit court case. The county court never entered an order enjoining Johnson from collecting on his judgment in Johnson v. Parker Tractor. Moreover, the county court had no authority to enter such an order. In Deere & Co. v. First National Bank of Clarksdale, the court noted at paragraph 24 that: We begin by addressing an issue not raised by the parties, but one of significant importance to our judicial system. The precise issue before us is whether to reverse the trial court's denial of Deere's motion for summary judgment. In essence, the issue is whether the county court may prevent Johnson from proceeding with collection of a judgment he obtained in 12

18 the circuit court - a judgment which was affirmed by this Court on appeal, and was not attacked in the circuit court that rendered the judgment. Deere & Co. v. First Nat'l Bank, 12 So. 3d 516, ~24. The supreme court concluded that: "We know of no statute, rule, or constitutional provision which permits a county court to invalidate a judgment rendered by a Mississippi circuit court and affirmed by this court. Such attacks on a judgment are properly within the purview of Rule 60 of the MIssIssIPPI RULES OF CIVIL PROCEDURE." Id. at~26. Thus, the issue of a county court's authority to enter orders concerning the collection of a circuit court judgment has already been answered by the Mississippi supreme court. Johnson's argument that the county court order "enjoined" him from collecting on the judgment in Johnson v. Parker Tractor does not square with the supreme court's finding in the Deere & Co. v. First National Bank case. In addition, the plain language of the county court's order from which the interlocutory appeal was taken explicitly states: "Should Deere & Company petition for interlocutory appeal and should that petition be granted, this matter will be stayed pending the outcome of the interlocutory appeal" (Emphasis supplied.) [Hearing Transcript p. 18, I. 20 thru p. 19, I. 5; Hearing Exhibit 8 to Transcript of 22 June 2012 Hearing]. The language used is not that of injunctive relief enjoining Johnson from collecting on his judgment. Johnson s argument that supreme court order granting the motion for interlocutory appeal in the Deere & Co. v. First National Bank case and staying proceedings in Deere & Co. v. First National Bank stayed proceedings in Johnson v. Parker Tractor. Johnson's argument that the supreme court order granting the motion for interlocutory appeal and 13

19 staying the trial court proceedings in the Deere & Co. v. First National Bank county court case also stayed proceedings in Johnson v. Parker Tractor circuit court case is without merit. Rule 5 of the MIssIssIPPI RULES OF ApPELLATE PROCEDURE does not make a stay of the trial court proceedings automatic when a motion for interlocutory appeal is granted. See MIss. R. ApP. P. 5(f) ("The petition for appeal shall not stay proceedings in the trial court unless the trial judge orthe Supreme Court shall so order."); Long v. Memorial Hosp. at Gulfport, 969 So. 2d 35, ~19 (Miss. 2007) ("Finally, although the Longs filed their petition for interlocutory appeal on April 21, 2003, the filing of a petition for interlocutory appeal does not stay the proceedings of the circuit court unless this court enters an order to that effect. MIss. R. App. P. 5(f)."). Either the trial court or the supreme court must enter an order staying the proceedings in the trial court. Nothing in Rule 5 even hints that a stay during an interlocutory appeal in Case A from a county court interlocutory order would somehow stay judgment enforcement proceedings on a final judgment in Case B in circuit court. In the Deere & Co. v. First National Bank case, neither the appellant nor the appellees asked either the county court or the supreme court to stay judgment enforcement proceedings in Johnson v. Parker Tractor. As a practical matter, there were no judgment enforcement proceedings to stay because Johnson did not have issued his first writ of garnishment until 16 October over two years after the filing of the petition for interlocutory appeal. The supreme court order granting the motion for interlocutory appeal in the county court case did not stay any proceedings other than the proceedings in the county court from which the interlocutory appeal had been taken. Rule 5(f) of the MIssIssIPPI RULES OF ApPELLATE PROCEDURE deals with staying proceedings in the trial court from which the 14

20 appeal is taken. As the rule states and the case law shows, a stay is not automatic. As mentioned before, there were no judgment collection activities taking place in circuit court which might have been stayed back in 2007 since Johnson did not have his first writ issued until 16 October And, if the supreme court had stayed judgment enforcement proceedings in the circuit court case, then that order would have been reflected on the circuit court case docket. There is no such entry on the circuit court case docket. Moreover, the opinion in the Deere & Co. v. First National Bank case would have included a lift stay order directed at the circuit court, rather than just a conclusion that: "For all of the above reasons, the Coahoma County Court's denial of summary judgment is affirmed. This case is affirmed and remanded to that court for further proceedings consistent with this opinion." Deere & Co. v. First Nat'l Bank at (Emphasis supplied.) The mandate in the Deere & Co. v. First National Bank case and the supreme court docket for that case iaentify the involved trial court -- the County Court of Coahoma County. There is no rule or case law which states that an order granting a motion for interlocutory appeal and staying proceedings in Case A on a county court docket so the supreme court can review an order entered in Case A also stays enforcement of a mandate and judgment collection activities in Case B which is on a circuit court docket. The text of Rule 5(f) does not support the expansive stay scope Johnson wants this court to ascribe to the rule. Nothing in Rule 5(f) suggests that anything other than the proceedings in the trial court from which the interlocutory appeal has been taken are stayed. For a stay of the judgment collection proceedings in Johnson v. Parker Tractor during the interlocutory appeal ofthe county court order in the Deere & Co. v. First National Bank case, a party would have had to have filed a motion to stay in the circuit court and 15

21 have had the circuit court grant the motion and enter a stay order. MIss. R. ApP. P. 8(b). No party filed such a stay motion. Johnson's argument that his motion to clarify/amend the mandate in Parker Tractor & Implement Co. v. Johnson. No. 98-CA SCT stayed the mandate and therefore stayed judgment enforcement proceedings. Johnson's argument that his motion to clarify the mandate served to recall or stay the effect of the mandate is contrary to the explicit language ofthe procedural standards. A mandate finalizes an appellate decision and fixes the rights of the involved parties and once issued, a mandate will not be recalled except to prevent manifest injustice. See, e.g., FED. R. ApP. P. 41, committee notes 1998 amendment; 5TH CIR. R ("Once issued a mandate will not be recalled except to prevent injustice."). A mandate issued by the Mississippi supreme court is only stayed when a party files a petition for writ of certiorari in the United States Supreme Court. MIss. R. ApP. P. 41(c). In this situation, the mandate is stayed for 90 days subject to an extension of the stay if good cause can be shown. Id. A timely filed motion for rehearing stays the mandate as indicated in the comment to Rule 40. The comment to Rule 40 distinguishes between a motion for rehearing on the merits which stays the mandate and a Rule 27 motion to clarify which does not stay or otherwise effect the mandate. MIss. R. ApP. P. 40, cmt. While a motion for rehearing under Rule 40 of the MISSISSIPPI RULES OF ApPELLATE PROCEDURE may stay a mandate, a motion for clarification does not. The comment to Rule 40 explains: A motion for rehearing should be distinguished from a motion for clarification or correction of opinion. Such a motion, filed in the manner and form prescribed by Rule 27, does not seek to alter the judgment of the court, and will not stay the 16

22 mandate. (Emphasis supplied.) A motion to amend or clarify a mandate is a type of motion explicitly recognized by Rule 27 of the MIssIssIPPI RULES OF ApPELLATE PROCEDURE since Rule 27(h)(6) lists "motions to amend, correct or clarify orders, opinions, and mandates" as Rule 27 motions. MIss. R. ApP. P. 27(h)(6) (emphasis supplied). A motion to amend or clarify a mandate therefore does not serve to stay the mandate, recall the mandate, nullify the mandate, or stay enforcement of the mandate because a Rule 27 motion, "will not stay the mandate." MIss. R. ApP. P. 40, cmt. Rule 8(b) and 8(c) of the MIssIssIPPI RULES OF ApPELLATE PROCEDURE set out the procedures for getting a stay order. A party must make a motion in the trial court in the first instance. Examples of using this procedure are noted in Franklin Corp. v. Tedford, 18 So. 3d 215, ~27 (MiSS. 2009) and In re Estate of Richardson, 903 So. 2d 51, ~29 (Miss. 2005). No party filed a motion to stay judgment enforcement proceedings in the circuit court case. Rule 8(c) sets the procedures for making a motion to stay with the supreme court. No party ever filed a Rule 8( c) motion with the Supreme Court of Mississippi to stay judgment enforcement proceedings in the circuit court case. Rule 8 makes it clear that stays are extraordinary. Stays are by no means automatic and cannot be inferred from orders which do not explicitly stay proceedings in a particular court. No party filed a motion to stay judgment enforcement proceedings in either the circuit court or the supreme court. Since the mandate in Johnson v. Parker Tractor was never recalled, and since no party ever secured a stay order in either the circuit court or the supreme court, judgment enforcement proceedings were never stayed in the trial court. Even if we entertain Johnson's argument that his motion to clarify served to stay the effect of the mandate, 17

23 when the three years, for months, and nine days of time the motion to clarify was pending is added to the 2 January 2009 terminal day for the statute of limitations, the terminal day for the "extended" limitations period becomes 11 May [Hearing Transcript p. 17, I. 9 thru p. 18, I. 8; Hearing Exhibit 3] Johnson did not renew his judgment on or before 11 May 2012 or at any other time. While Johnson had a writ of garnishment issued before 11 May 2012, the issuance of a writ of garnishment does not toll the limitations period for enforcement of the judgment. See Grace v. Pierce, 127 Miss. at 837,90 So. 590 ("The issuance of writs of garnishment before the bar of the statute attached did not serve to extend or keep alive the lien of these judgments."). The bottom-line is no party ever filed a motion to stay enforcement of the circuit court judgment. A Rule 27 motion to clarify does not stay or recall a mandate. Johnson's motion to clarify did not recall or stay the effect of the mandate, and the statute of limitations was not tolled by Johnson's Rule 27 motion. Johnson's argument that Parker Tractor and Sentry are judicially estopped from asserting the statute of limitations defense. Johnson's argument that judicial estoppel is somehow implicated is not particularly clear. Johnson's argument suggests that Deere was a garnishee in First National Bank v. Johnson. This is incorrect. Deere was allowed to intervene in First National Bank v. Johnson as an interested party. See Deere & Co. v. First National Bank of Clarksdale, 12 So. 3d 516, 525, appdx. A ("Deere allowed to intervene as an interested party in State 11."). Deere was never served with a writ of garnishment issued by the county court in First National Bank v. Johnson. Deere was never served with a writ of garnishment issued by the circuit court in Johnson v. Parker Tractor. 18

24 Johnson then suggests, citing State Farm Mutual Automobile Ins. Co. v. Sampson, 324 So. 2d 739 (Miss. 1975), that Deere was somehow obligated to interplead or surrender property or money to the county court, and that the failure to interplead property or money somehow implicates judicial estoppel as to Parker Tractor and Sentry in the instant case. Johnson's contentions are baseless. First, Deere was not served with a writ of garnishment. Second, even if Deere had been a garnishee, State Farm v. Sampson does not stand for the proposition that a garnishee must surrender or interplead property or money; the cited case stands for the proposition that the garnishee must protect property that is the subject to the garnishment or surrender it to the offer serving the writ (at which point the officer assumes the task of safeguarding the property). A garnishee is not required to interplead or otherwise pay a judicial official the amount the garnishor claims is due, particularly where the garnishee objects to the writ of garnishment and demands an evidentiary hearing such that the trial court can quash the writ or, alternatively, enter a garnishment judgment for the garnishor. Third, interpleading money or property is not some sort of condition precedent for a garnishee to interpose the statute of limitations defense once the statute expires. In any event, Johnson's arguments pertaining to Deere are red herrings since Deere is not a party to the instant case. Johnson argues that he somehow was prevented from collecting on his circuit court judgment during the litigation in other courts in which Deere challenged the circuit court judgment under the last-in-time rule. Johnson suggests that he could not collect on his judgment because if Deere had prevailed, he would have collected on a "void judgment." This argument misses the mark for a couple of reasons. First, no order was ever entered by the circuit court staying judgment enforcement activities in the Johnson v. Parker 19

25 Tractor case. Such an order would have been required to prevent Johnson from collecting on his judgment. Second, it would have been up to Parker Tractor to file such a motion in response to Johnson serving a writ of garnishment or writ of execution during the pendency of litigation in other courts challenging the circuit court judgment under the last-in-time rule. That is, if Johnson engaged in collection activities, it would have been up to Parker Tractor to stay those activities with a motion to stay enforcement filed in the circuit court. Since Johnson made no effort to collect on his judgment until October 2009, there was never a need for Parker Tractor to file a motion to stay judgment collection activities. Johnson's argument concerning judicial estoppel is without merit. The trial court wrote in its order granting Parker Tractor's motion to find judgment enforcement timebarred: Parker Tractor earlier in the procedural history litigated the validity of the judgment using various theories, all of which proved to be unsuccessful. Now its position is that if the judgment was ever valid, it is now invalid, as it is time barred. Here, Parker Tractor did not change its position. Even if it did change, it did not benefit from its eariier position. Thus, Johnson cannot prevail on his judicial-estoppel claim. [R. 127 at 131; R.E. 24 at 28] "Judicial estoppel precludes a party from asserting a position, benefitting from that position, and then, when it becomes more convenient or profitable, retreating from that position later in the litigation." Dockins v. Allred, 849 So. 2d 151, 155,118 (Miss.2003). So, for Johnson to prevail on his judicial estoppel theory, he must show that: (1) Parker Tractor or Sentry previously asserted that the statute of limitations had not run regarding enforcement of Johnson's judgment against Parker Tractor; (2) Parker Tractor or Sentry benefitted from taking that position, and (3) Parker and Sentry thereafter retreated from that position. 20

26 Johnson has provided no proof as to any ofthe three elements of judicial estoppel because there is no such proof. The plain fact is Parker Tractor and Sentry have never taken the position that enforcement of Johnson's judgment is not time-barred. Parker Tractor's and Sentry's position has been absolutely consistent since their initial responses to Johnson's writ of garnishment -- Johnson's claim is time-barred. The fact that Deere & Company in other cases challenged the validity of Johnson's state court judgment based on the last-intime rule is completely immaterial to the statute of limitations issue and Johnson's judicial estoppel argument in this case. In this case, when Johnson had issued his writ of garnishment, Parker Tractor and Sentry immediately responded setting up the statute of limitations defense and sought Rule 60 relief from the judgment in accord with the guidance ofthe Supreme Court of Mississippi to attack judgments using Rule 60 in the trial court which issued the judgment. Deere & Co. v. First National Bank of Clarksdale, 12 So. 3d 516, '\I 26. Parker Tractor's and Sentry's position that enforcement of Johnson's judgment is time-barred has never changed. To the extent Johnson is attempting to argue some other sort of estoppel tolled the statute of limitations, MIssIssIPPI CODE ANNOTATED section is a statute of repose, and a statute of response is not tolled by equitable estoppel or otherwise Baldwin v. Holliman, 913 So.2d 400, (MiSS. App. 2005). Parker Tractor and Sentry respectfully submit that it is Johnson who is estopped from claiming that judgment enforcement was stayed in circuit court by virtue of his having filed a motion to clarify the mandate in Parker Tractor v. Johnson. The doctrine of judicial estoppel applies where there is multiple litigation between the same parties and one party knowingly asserts a position inconsistent with a position in other litigation. Rankin v. 21

27 American General Finance. Inc., 912 So. 2d 725, ~10 (Miss. 2005). Waiver is the is the intentional or voluntary relinquishment of a known right or privilege. Glass v. Glass, 726 So. 2d 1281 (Miss. App. 1998). Even if we ignore the explicit language of the official comment to the MIssIssIPPI RULES OF ApPELLATE PROCEDURE that states a motion to clarify does not stay a mandate, and ignore the fact that no party ever sought to stay or recall the mandate in any court, Johnson's positions taken in other litigation estops him from now asserting the mandate was stayed because during the period 21 February 2002 (date motion to clarify mandate filed) to 30 June 2005 (order on motion to clarify), Johnson never took the position that the mandate or judgment enforcement in Johnson v. Parker Tractor had been stayed or recalled. In fact, during this time period, Johnson sought affirmative relief concerning collection of his judgment. The same conduct by Johnson also serves as a waiver to assert any stay argument in this case. In Johnson v. Parker Tractor, Johnson filed his motion to clarify mandate with the supreme court on 21 February On 27 February 2002, he filed with the circuit court a motion to calculate interest. [R. 5, R.E. 6] The filing of the interest motion shows that Johnson did not consider judgment collection activities in the circuit court stayed because of the motion to clarify filed in the supreme court. In response to Deere's complaint in intervention in First National Bank of Clarksdale v. Johnson, Johnson filed a cross-claim/counterclaim on 23 July 2003 seeking a declaratory judgment regarding money payable by Sentry and the allocation of that money. Johnson's request for relief in his cross-claim was: Johnson respectfully demands judgment establishing the entitlement to funds as among the parties, the priority of entitlement and the amount of entitlement to the same, and further requests this court to determine the amount which 22

28 Sentry Select Insurance Company should be required to pay and for such other relief as to which Johnson would be entitled. [Hearing Exhibit 7 to Transcript of 22 June 2012 Hearing] To reiterate, Johnson filed a motion to clarify in the supreme court on 21 February On 27 February 2002, Johnson filed a motion for interest calculation in Johnson v. Parker Tractor clearly indicating that he considered the mandate enforceable on that date. In the First National Bank of Clarksdale v. Johnson. case, Johnson sought an adjudication of the amount payable by Sentry on his judgment against Parker Tractor and an allocation of that money amongst the parties. Johnson's positions then are inconsistent with his present position. Johnson cannot have it both ways; that is, having judgment enforcement proceedings stayed for purpose of avoiding the consequences ofthe running ofthe statute of limitations, but not having judgment enforcement proceedings stayed for the purpose of filing a motion for interest and litigating a cross-claim seeking a judgment regarding the distribution of the money he claimed Sentry owed on his judgment against Parker Tractor. In litigation concerning the judgment in the circuit court case, Johnson never took the position that the mandate was somehow stayed or recalled and the judgment was therefore not ripe for collection. Not until Johnson was faced with the fact that the judgment enforcement statute of limitations had run did he throw up the "judgment enforcement was stayed by my motion to clarify the mandate" argument, despite the fact that the argument is contrary to Rule 40 and Rule 27 of the MISSISSIPPI RULES OF ApPELLATE PROCEDURE. Johnson knew that his motion to clarify the mandate did not serve to stay judgment enforcement because shortly after Johnson filed his motion to clarify the mandate, he filed a motion in the circuit court for post judgment interest, and then asserted a cross-claim in 23

29 the First National Bank v. Johnson county court case seeking a declaratory judgment allocating amongst the parties the money Johnson claimed Sentry owed on his judgment against Parker Tractor. At no time in the county court case did Johnson take the position that collection of the judgment in Johnson v. Parker Tractor had been stayed because of his filing a Rule 27 motion to clarify the mandate. Therefore, he has waived that position and is estopped under the principles of judicial estoppel orordinary estoppel from asserting it here. CONCLUSION This case must be decided with a dispassionate study ofthe record. See Oakwood Homes Corp. v. Randall, 824 So. 2d 1292, 1293, ~3 (Miss. 2002)(cases must be decided on facts shown in record, not by assertions in briefs); Harveston v. State, 493 So. 2d 365, 373 (Miss. 1986)("A dispassionate study of this record has led us to the view that only by bending the rules -- rules we have enforced against so many others -- may we reverse. "). The mandate was entered on 31 January Johnson waited until 16 October 2009 to have issued the first process to collect on his judgment. That is, Johnson waited seven years, nine months from the mandate date to take the first step in collecting on his judgment. Johnson never moved forward with securing a judgment on his writ of garnishment. Johnson's arguments cannot overcome reality, and the reality here is that he let the statute of limitations for enforcement of his judgment expire before doing anything to collect on his judgment. Moreover, he never renewed his judgment in order to extend the statute of limitations. "The completion of the period of limitation prescribed to bar any action, shall defeat and extinguish the right as well as the remedy." MIss. CODE ANN (Supp. 2012). 24

30 On 2 January 2009, Johnson's right to enforce and collect on his judgment against Parker Tractor was extinguished by the running of the statute of limitations. Johnson did not have a writ of execution or writ of garnishment issued until after the limitations period had expired. Even if a writ had been issued during the limitations period, that alone would not serve to extend the imitations period. See Grace v. Pierce, 90 So. at 592 ("the issuance of writs of garnishment before the bar of the statute attached did not serve to extend or keep alive the lien of these judgments"). The expiration of the section limitations period extinguishes the judgment creditor's rights and remedies since the underlying debt is extinguished by the running of the statute of limitations. See Young v. Hooker, supra at ~13 (running of seven year statute of limitations not only defeats and extinguishes any remedy of judgment creditor, but also defeats and extinguishes debt itself); MIss. CODE ANN , "The law is clearly established in this state that a garnishment proceeding is no longer valid... after lapsing of the judgment upon which garnishment is issued." Deposit Guar. Nat'l Bank v. Biglane, 427 So. 2d at 952. Procuring a writ of garnishment does not extend the limitations period for judgment enforcement. Grace v. Pierce, 90 So. at 592. Where the main judgment has been annulled, any garnishment order on that main judgment is void. Moody & Williams v. Dye, 125 Miss. at 778. "The fact that a barred claim is a just one or has the sanction of a moral obligation does not exempt it from the limitation period. These statutes of repose apply with full force to all claims and courts cannot refuse to give the statute effect merely because it seems to operate harshly in a given case." Miss. Dept. of Public Safety v. Stringer, supra at ~13. Based on the undisputed facts and the law, the statute of limitations expired on 2 25