IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO CA DEUTSCH, KERRIGAN & STILES, LLP

Transcription

1 E-Filed Document Aug :44: CA SCT Pages: 18 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO CA IKE W. THRASH and DAWN INVESTMENTS, LLC APPELLANTS v. DEUTSCH, KERRIGAN & STILES, LLP APPELLEES Appeal From The Circuit Court of Harrison County, Mississippi, Second Judicial District, No. A REPLY BRIEF OF APPELLANTS ORAL ARGUMENT REQUESTED Prepared by: NICHOLAS VAN WISER, MSB NO BYRD & WISER ATTORNEYS AT LAW 145 MAIN STREET P. O. BOX 1939 BILOXI, MISSISSIPPI (228) (phone) (228) (fax) ATTORNEY FOR APPELLANTS

2 I. TABLE OF CONTENTS I. TABLE OF CONTENTS ii II. TABLE OF AUTHORITIES iii III. ARGUMENT A. MISSISSIPPI RECOGNIZES A LEGAL DUTY OWED TO THE PLAINTIFFS BY THE DEFENDANT IN THIS CASE B. THE FACTS OF THE CASE GAVE RISE TO A FIDUCIARY RELATIONSHIP BETWEEN THE PARTIES C. DKS S NEGLIGENCE AND BREACH OF FIDUCIARY DUTY PROXIMATELY CAUSED THE DAMAGES TO THE PLAINTIFFS D. THE PLAINTIFFS ARE NOT ASSERTING A CLAIM THAT DKS IS LIABLE UNDER AN AGENT/PRINCIPAL RELATIONSHIP, BUT RATHER THAT DKS OWED THEM A SEPARATE, INDEPENDENT DUTY IV. CONCLUSION V. CERTIFICATE OF SERVICE ii

3 II. TABLE OF AUTHORITIES CASES In re Applewhite, 106 B.R. 468 (Bankr. S.D. Miss. 1989) , 8 Arnold v. Erkmann, 934 S.W.2d 621 (Mo.Ct.App.1996) Century 21 Deep Southern Properties, Limited v. Corson, 612 So. 2d 359 (Miss. 1992).... 1, 12 Crawford Logging, Incorporated v. Estate of Irving, 41 So.3d 687 (Miss. 2010) , 13 Estate of Myers v. Myers, 498 So.2d 376 (Miss.1986) Lewis v. Forest Family Practice Clinic, 124 So.3d 654 (Miss. 2013) Lowery v. Guaranty Bank and Trust Company., 592 So.2d 79 (Miss. 1991) In re Martin, 276 B.R. 552 (Bankr. N.D. Miss. 2001) Moore v. Marathon Asset Mgmt, LLC, 973 So.2d 1017 (Miss. Ct. App. 2008) O Cain v. Harvey Freeman and Sons, Incorporated of Miss., 603 So.2d 824 (Miss.1991) Robley v. Blue Cross/Blue Shield of Mississippi, 935 So. 2d 990 (Miss. 2006) , 12 Southland Management Company v. Brown ex rel Brown, 730 So.2d 43 (Miss.1998) Touche Ross and Company v. Commercial Union Insurance Company, 514 So. 2d 315 (Miss. 1987) , 12 University Nursing Associates, PLLC v. Phillips, 842 So. 2d 1270 (Miss. 2003) , 12 FEDERAL STATUTES 11 U.S.C STATE STATUTES Miss. Code Ann Miss. Code Ann (West) iii

4 III. ARGUMENT A. MISSISSIPPI RECOGNIZES A LEGAL DUTY OWED TO THE PLAINTIFFS BY THE DEFENDANT IN THIS CASE DKS contends that the Appellants, Ike Thrash and Dawn Properties (collectively Thrash ), have failed to show that a legal duty was owed by DKS to Thrash to support Thrash s claim of negligence by DKS in conducting the foreclosure sale in question. Contrary to this position, Mississippi does recognize that a professional does in fact owed a duty to reasonably foreseeable third parties who rely on the professional s work. Thrash relied upon the work of the DKS attorney to conduct the foreclosure sale properly and in accordance with statutory requirements. Therefore, a legal duty did exist from DKS to Thrash under the facts of the case before this Court. Thrash has previously cited to Century 21 Deep S. Properties, Ltd. v. Corson, 612 So. 2d 359, 374 (Miss. 1992), for the proposition that an attorney performing real estate title work had a legal duty to reasonably foreseeable third parties who subsequently relied upon his work to their detriment. This holding has its origins in an earlier Supreme Court case, Touche Ross & Co. v. Commercial Union Ins. Co., 514 So. 2d 315 (Miss. 1987). In Touche, a bank s insurer sued an independent auditor that negligently prepared the bank s financial statements when damages resulted as a result of the insurer relying on the statements to extend insurance coverage to the bank. In finding the existence of a legal duty owed from the auditor to the insurer, the Court held that an independent auditor is liable to reasonably foreseeable users of the audit, who request and receive a financial statement from the audited entity for a proper business purpose, and who then detrimentally rely on the financial statement, suffering a loss, proximately caused by the auditor's negligence. Touche Ross & Co., 514 So. 2d at 322 (Miss. 1987). Clearly, this concept of a third 1

5 party s right to rely upon the work-product of an independent professional (in this case, the Trustee under the Deed of Trust) is well-established under Mississippi law. Mississippi recognizes this legal duty owed to third parties who reasonably rely upon the work of a professional for a proper business purpose when damages result that are proximately caused by a breach of that duty. DKS was retained to serve as Trustee under the U.S. Capital deed of trust, and instructed to perform a foreclosure for U.S. Capital, as beneficiary. By agreeing to do so, DKS undertook an obligation not only to DKS, but to the public at large (being the potential purchasers at the public sale) as reasonably foreseeable third parties who would rely upon its work in conducting the foreclosure. Mississippi non-judicial foreclosure law is a creature of statute and the actions of a Trustee in the foreclosure process are dictated by specific, statutory instructions set forth in Miss. Code Ann The statute provides that the foreclosure sale shall be advertised for three (3) consecutive weeks preceding such sale, in a newspaper published in the county and that the foreclosure is void unless such sale shall have been advertised as herein provided for. Miss. Code. Ann (West). DKS was required to perform the above requirements in a manner that would not injure reasonably foreseeable third parties that relied upon its work in conducting the foreclosure. Thrash was a reasonably foreseeable third party. When a foreclosure sale is advertised to the public, it is not only reasonably foreseeable, but readily apparent, anticipated and hoped that interested parties will take notice and appear at the auction to bid on the property being sold. Thrash took notice of the publicly advertised sale and appeared at the Courthouse on the date specified. Hence, Thrash was a reasonably foreseeable third party who in fact did rely upon DKS s professional services as lawyers serving as Trustee in advertising the sale, and in reliance upon these services, appeared at 2

6 the sale and paid over $5,000,000 at the specific direction of DKS as trustee. DKS published the required notice in the local newspaper three times. Unfortunately, DKS failed to follow this Court s specific holdings that the sale be conducted seven (7) days from the date of the last sale and held the sale one day following the third publication. The final publication date was August 29, The earliest possible date that the foreclosure sale could have been set was September 5, 2007, being seven days after the final publication. This Court s holdings notwithstanding, DKS set the auction on the very next day following the third publication date, August 30, This resulted in a void sale. DKS had a legal duty to Thrash to perform the foreclosure sale correctly and in accordance with the statutory and case law requirements. DKS s failure to do so proximately caused damages to Thrash by Thrash s payment of $5,900,000 to U.S. Capital, at the specific direction of DKS. DKS s actions were in breach of those statutorily imposed duties. It is respectfully submitted that this Court should recognize a legal duty owed to Thrash by DKS. B. THE FACTS OF THE CASE GAVE RISE TO A FIDUCIARY RELATIONSHIP BETWEEN THE PARTIES DKS argues that no fiduciary relationship existed between the parties in relation to the foreclosure because DKS owed no such duty as trustee under the deed of trust to Thrash as a thirdparty purchaser. It further argues that the foreclosure was nothing more than a normal arms-length transaction which created no such relationship between the parties. DKS finally argues that Thrash retained his own attorney in the foreclosure transaction and thus, relied on her rather than DKS in regards to the transaction. Thrash would show that Mississippi law is not nearly as limiting as DKS suggests with 3

7 respect to the requirements necessary to establish a fiduciary relationship. In fact, Mississippi adheres to a broad definition of the term, fiduciary relationship, which embraces relationships that create trust in, or reliance upon, another. Robley v. Blue Cross/Blue Shield of Mississippi, 935 So. 2d 990, 994 (Miss. 2006) (citations omitted). Traditional fiduciary relationships exist in cases of trustees and beneficiaries, partners, and principal and agents but our law applies a broad brush to the doctrine and does not preclude a jury's finding of a fiduciary relationship in other situations. Id. (citation omitted). A fiduciary relationship may arise in a commercial transaction when the circumstances establish that (1) the parties have shared goals in the other s commercial activity, (2) one party justifiably places trust or confidence in the integrity and fidelity of the other, and (3) the trusted party has effective control over the other party. Lowery v. Guaranty Bank and Trust Co., 592 So.2d 79, 83 (Miss. 1991). With reference to these requirements, this Court has said that [o]ne of the key elements of a fiduciary relationship is the fiduciary's control of the supervised party's property, and that things of value such as land, monies, a business, or other things of value must be possessed or managed by the dominant party. Univ. Nursing Associates, PLLC v. Phillips, 842 So. 2d 1270, 1275 (Miss. 2003) (quoting, Arnold v. Erkmann, 934 S.W.2d 621, 629 (Mo.Ct.App.1996)). Thrash established each of these requirements, thereby conclusively establishing that a fiduciary relationship existed between the parties. Each party had a mutual interest in closing on the subject property. As Trustee under the deed of trust, DKS controlled all aspects of the transaction. DKS controlled the manner and timing of the sale and how the funds were to be paid following the sale. Thrash entrusted over Five Million Dollars to DKS at the direction of the DKS attorney serving as trustee, expecting to receive as good title to the subject property as was vested in DKS as trustee. 4

8 DKS should have held the purchase funds in trust until such time as it had verified that the foreclosure had been properly conducted and completed, and was negligent in instructing Thrash to wire the money directly to the beneficiary, U.S. Capital. DKS, as the dominant party was in complete control of the entire process and exercised dominion and control over Thrash in completing the transaction. As an experienced, professional law firm, DKS should have exercised the statutorily mandated standard of care in conducting the sale, and reasonable prudence with regard to the purchase funds. The fact that Thrash retained his own counsel to facilitate the transfer of the money is inconsequential. Thrash s counsel merely provided her trust account to demonstrate the immediate availability of the purchase funds. DKS controlled the transaction and was the dominant party. Thrash placed his confidence and trust in DKS by wiring the funds to U.S. Capital at DKS s direction. Thrash s expected benefit from making the required payment was to receive valid title to a valuable piece of commercial real estate. DKS, as the trustee and only party that had the ability to complete the transaction, failed to complete its obligation of the sale as a direct proximate result of the fact that the sale was void by DKS s own error. DKS s error in the mode of the sale enabled Coastal Land Development Company, Inc. ( Coastal ), the Debtor under the Note and Deed of Trust to file a bankruptcy petition, thereby preventing a re-foreclosure of the property which might have corrected the void sale. If DKS had sold the property on September 5, 2007 in accordance with the statute, the bankruptcy, filed on September 6, 2007, would have been a non-issue. This lawsuit could have been avoided in its entirely had DKS held the funds in escrow until final determination of the validity of the foreclosure, rather than instructing Thrash to wire the funds 5

9 directly to U.S. Capital, the Beneficiary. Once the sale was determined to be void and Coastal s bankruptcy was filed, DKS could have returned the funds directly to Thrash and no damages would have been incurred. At the very least, DKS should have immediately made demand on its client to return the funds, and should have initiated litigation to recover them if necessary. DKS failed to take any of these actions and instead Thrash was required to fend for himself trying to recoup his money. DKS owed Thrash a fiduciary duty in handling of the purchase proceeds and this Court should find that it breached that duty by failing to return the funds once the transaction was determined to be void. C. DKS S NEGLIGENCE AND BREACH OF FIDUCIARY DUTY PROXIMATELY CAUSED THE DAMAGES TO THE PLAINTIFFS DKS claims that Coastal s bankruptcy was an intervening, superceding cause which negated any liability on the part of DKS with respect to the void foreclosure. However, Coastal s bankruptcy cannot be considered an intervening cause for the reason that a bankruptcy filing was a reasonably foreseeable action that DKS should have anticipated from the outset when conducting the foreclosure sale. Mississippi s bankruptcy courts adhere to the principle that a foreclosure sale is fully consummated at the courthouse steps after the reading of the notice to the public and the hammer falling on the winning sale bid. If DKS had properly performed the sale on the correct date of September 5, 2007, it would have been valid and binding and Coastal s bankruptcy which was filed on September 6, 2007 would have had no effect on the foreclosure. In its response brief, DKS fails to fully advise this Court of all the criteria necessary to qualify an act as an intervening, superceding cause. A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another 6

10 which his antecedent negligence is a substantial factor in bringing about. Southland Mgmt. Co. v. Brown ex rel Brown, 730 So.2d 43, 46 (Miss.1998). But, the act cannot be classified as an independent, superceding cause if it could be reasonably foreseen by the defendant while exercising due care. O'Cain v. Harvey Freeman and Sons, Inc. of Miss., 603 So.2d 824, 829 (Miss.1991) (citations omitted). Coastal was the record owner of the subject property being offered at foreclosure, subject to legal title being held by the Trustee, DKS. DKS is a professional law firm and when retained to serve as Trustee and perform the foreclosure, DKS must have known that the foreclosure could be stayed should Coastal file for protection under the United States Bankruptcy Code. Such a presale petition filing is incredibly common, to the point that a reasonably prudent Trustee will check the electronic filings prior to making the trip to the Courthouse. It is common knowledge in the legal profession that upon a filing of a bankruptcy petition, the automatic stay (11 U.S.C. 362) comes into effect, protecting the debtor s interest in estate property. As such, Coastal s filing of bankruptcy was a reasonably foreseeable tactic that Coastal could employ to protect its interest in the property. Thus, Coastal s filing of a bankruptcy petition cannot be considered a superceding cause under Mississippi law. Mississippi bankruptcy courts have clearly established the moment when a debtor loses his redemption rights in property when a bankruptcy is filed. Those holdings clearly establish the fact that had DKS performed the foreclosure correctly, Coastal s bankruptcy would have had no effect on the foreclosure. In In re Applewhite, 106 B.R. 468, 469 (Bankr. S.D. Miss. 1989), the secured lender initiated non-judicial foreclosure on the debtor s primary residence prior to the debtor filing bankruptcy. The substituted trustee conducted the sale on June 15, 1989, in accordance with the 7

11 deed of trust and state law, delivering a trustee s deed to the land records department for recordation. Id. However, the debtor filed bankruptcy prior to the deed being recorded at the courthouse. Id. The Bankruptcy Court for the Southern District of Mississippi held that the bankruptcy did not affect the foreclosure and that the foreclosed property was no longer property of the estate at the time the bankruptcy was filed. The court stated: Mississippi law does not provide a right of redemption after foreclosure. The debtor does have some rights prior to the foreclosure sale as set forth in Section of the Mississippi Code of 1972, as Amended. Those rights terminate when the sale is made. At the moment a foreclosure sale concludes, the debtor is fully divested of all legal and equitable interest in the foreclosed property. Id. The court went on to hold that [b]ecause a mortgagor-debtor is divested of all legal and equitable title to real property at the conclusion of a foreclosure sale, the automatic stay resulting from a subsequent bankruptcy filing does not apply to the successful bidder whether or not the Trustee's Deed has been delivered or recorded. Id. at 470. Subsequently, in In re Martin, 276 B.R. 552 (Bankr. N.D. Miss. 2001), the Bankruptcy Court for the Northern District of Mississippi was faced with a similar situation where a bankruptcy was filed after the foreclosure sale was conducted but before the recordation of the trustee s deed. The court held: Under Mississippi law, the right of redemption is extinguished upon the sale of the property at foreclosure. Accordingly, since there were no irregularities in the foreclosure processes, the court finds that the debtor herein possessed no legal or equitable interest in the subject property at the time that her bankruptcy case was filed. Id. at 557 (internal citations omitted). Thrash would respectfully submit that the above holdings, which are premised on Mississippi law, stand for the principle that the debtor is divested of all legal and equitable interest in the 8

12 property immediately following the auction at the courthouse steps. A reading of the relevant foreclosure statute supports this position. Mississippi recognizes a right of redemption of the mortgagor leading up to the date of the foreclosure sale. Miss. Code Ann (West). The mortgagor's right of redemption allows the mortgagor to stop the foreclosure sale and redeem his or her title and interest in the property by paying, before the actual foreclosure sale at the courthouse steps, the amount of the note or installment then due or past due by its terms, with all accrued costs, attorneys' fees and trustees' fees on the amount actually past due, which would result in a reinstatement of the terms of the instrument. Id. Following the foreclosure sale, the mortgagor is divested of all legal and equitable interest in the foreclosed property and also loses his or her right of redemption. Moore v. Marathon Asset Mgmt, LLC, 973 So.2d 1017, 1021 (Miss. Ct. App. 2008). The Statute makes it clear that the debtor holds a right of redemption, but that right is not boundless. The right is extinguished after the foreclosure sale is conducted. As such, the date upon which a trustee elects to conduct the foreclosure sale is the barometer by which a debtor can assess his redemption rights. The debtor may consult the foreclosure notice to see the date that the sale is to take place and at that point he knows that if he does not reinstate by that date before the foreclosure sale is conducted, he forever loses his interest in the property. To read the Statute any other way would create nonsensical and confusing results. There must be a point when the parties to a Deed of Trust and third-party purchasers know the debtor s redemption rights cease to exist. If the debtor fails to cure the indebtedness by the time designated for the sale, then the trustee knows that he can move forward with the auction and take bids from interested third-party purchasers. The secured party needs a hard and fast date and time upon which 9

13 the redemption rights cease so that it has a definite end to the time within which it must accept reinstatement from the debtor. The debtor obviously needs to know the final date upon which his rights are extinguished so that he can attempt to cure the indebtedness and reinstate the loan prior to the foreclosure. If the debtor s redemption rights did not end upon the closing of the auction on the date of the sale, it would have confusing and impractical consequences. The date would essentially become a moving target depending on the unique facts of each case. This would render the commercially reasonable sale virtually impossible as no purchaser could ever be certain that he was acquiring good title for his money. It is for this precise reason that both bankruptcy courts in the above cases found that the bankruptcy filings pre-dating the recordation of the trustees deeds but post-dating the foreclosure auctions were irrelevant. If the foreclosure auction was performed correctly, regardless of the subsequent execution and recordation of the deed, a debtor no longer retains an interest in the collateral property. If the debtors had filed prior to the actual sale at the courthouse steps then the outcome would have been vastly different as the automatic stay would have rendered the sale null and void, thereby protecting the debtors rights in and to the properties. In the case at bar, Coastal filed bankruptcy on September 6, If DKS had performed its duties correctly and held the foreclosure auction on September 5, 2007, seven days after the final publication, then Coastal s redemption rights would have been extinguished on that date following the closing of the auction. Thus, Coastal s subsequent bankruptcy could not have affected the foreclosure because it would have no longer had an interest to protect in the property on the date of the filing. The proximate cause of Thrash s damages was DKS s negligence in performing the 10

14 foreclosure, not Coastal s bankruptcy. Had DKS properly noticed the foreclosure and sold the property on the proper date, Coastal s bankruptcy would not have affected the validity of the sale. Ergo, the bankruptcy was not an intervening cause and DKS s negligence otherwise proximately caused the damages that were subsequently incurred by Thrash. D. THE PLAINTIFFS ARE NOT ASSERTING A CLAIM THAT DKS IS LIABLE UNDER AN AGENT/PRINCIPAL RELATIONSHIP, BUT RATHER THAT DKS OWED THEM A SEPARATE, INDEPENDENT DUTY Finally, DKS contends that Thrash cannot recover against it in this cause because he released DKS from liability when he executed a settlement agreement with U.S. Capital. It should be noted from the outset that this argument is raised by DKS for the first time on appeal. This Court has on numerous occasions, with unwavering consistency, held that arguments not presented to the Court below will not be considered for the first time on appeal. It is well-settled that issues presented for the first time on appeal are procedurally barred from consideration. We have held that [o]ne of the most fundamental and long established rules of law in Mississippi is that the Mississippi Supreme Court will not review matters on appeal that were not raised at the trial court level. Lewis v. Forest Family Practice Clinic, 124 So.3d 654 (Miss. 2013) citing Estate of Myers v. Myers, 498 So.2d 376, 378 (Miss.1986). The procedural bar notwithstanding, the problem with this logic is that the case at bar is not an action in which Thrash sued U.S. Capital for actions of its attorneys. U.S. Capital is not a named defendant in the Complaint. Thrash sued DKS under a respondeat superior theory for actions of Blackledge, the DKS attorney, for breaches of a legal and fiduciary duty owed to them as Trustee in the deed of trust by the law firm and did not assert any claims against U.S. Capital based on the breach of a duty owed to them by an agent of U.S. Capital. 11

15 As outlined above, DKS owed separate and independent duties, as a professional law firm, to Thrash, as an interested third-party to the foreclosure sale. Thrash was a reasonably foreseeable party that relied upon DKS s work product to conduct the foreclosure sale in a manner that would not cause injury and the reliance was for a legitimate business purpose to obtain good and valid title to a valuable piece of commercial real estate. See, Corson, 612 So. 2d at 374 (Miss. 1992); see also, Touche Ross & Co, 514 So. 2d at 322 (Miss. 1987). A fiduciary duty arose under the facts of this case which was breached when DKS instructed Thrash to wire over Five Million Dollars to complete the foreclosure transaction but failed to provide good and valid title to the property after the payment. See, Robley, 935 So. 2d at 994 (Miss. 2006); see also, Phillips, 842 So. 2d at 1275 (Miss. 2003). DKS, as a professional law firm, owed these duties to Thrash which were separate and independent from any duties owed by U.S. Capital to Thrash. DKS, by agreeing to conduct the foreclosure for U.S. Capital, undertook the obligation to protect reasonably foreseeable third-parties from harm. The fact that DKS was an agent of U.S. Capital has no bearing on these independent duties. The acts complained of by Thrash were breaches of duties owed by DKS separate from the agency relationship with U.S. Capital and therefore, this argument fails as a matter of law. DKS cites to Crawford Logging, Inc. v. Estate of Irving, 41 So.3d 687 (Miss. 2010) in support of its position that the Plaintiffs released DKS through the settlement agreement with U.S. Capital. However, the facts of that case are clearly distinguishable from the case sub judice. Crawford Logging was a wrongful death case where the plaintiff sued an independent contractor for the death of his son but failed to name the independent contractor s employer in the initial suit. Crawford Logging, Inc., 41 So. 3d at 688. The plaintiff and the independent contractor eventually settled the lawsuit, a settlement agreement was entered into, and the cause was dismissed with 12

16 prejudice. Id. Later on, the plaintiff attempted to revive the lawsuit by seeking amendment of his Complaint to name the independent contractor s employer, Crawford Logging, Inc. Id. at The trial court allowed the amendment and once in the lawsuit, Crawford Logging filed a motion for summary judgment seeking dismissal. Id. at 689. The trial court denied Crawford Logging s motion and interlocutory appeal was taken up by this Court. Id. This Court reversed the trial court s holding and rendered judgment in favor of Crawford Logging dismissing it from the case. The Court found that when the plaintiff released Crawford Logging s employee from liability, he effectively released his employer from liability as well. Id. at 691. In the case before this Court, Thrash did not enter into a settlement agreement with DKS s employee, Blackledge, releasing him from liability in this cause. Thrash entered into the agreement with U.S. Capital. Then, they brought a lawsuit against DKS for negligence and breach of fiduciary duty based on the separate duties owed to them by Blackledge/DKS as Trustee, as highlighted above. The Plaintiffs never sought to hold U.S. Capital liable for any actions of its agent, Blackledge. Therefore, DKS was not released from liability by the agreement with U.S. Capital and this Court should hold DKS liable in this cause. IV. CONCLUSION For the foregoing reasons, this Court should grant the Dawn Plaintiffs appeal. DKS negligently performed the foreclosure sale and breached its fiduciary duty in terms of the handling of the funds to purchase the property at foreclosure which caused the Plaintiffs substantial damages. Its actions were the proximate cause of the injury, not Coastal s bankruptcy. Finally, DKS was not 13

17 released by the U.S. Capital settlement agreement. Therefore, this Court should reverse the trial court s decision and render judgment in favor of the Plaintiffs. Respectfully submitted, this the 20 th day of August, BY: BY: IKE W. THRASH and DAWN INVESTMENTS, LLC, APPELLANTS BYRD & WISER BY: /s/nicholas Van Wiser NICHOLAS VAN WISER, MSB No V. CERTIFICATE OF SERVICE I, Nicholas Van Wiser, counsel for APPELLANTS, do hereby certify that I have this day filed the foregoing via the MEC filing system which caused a copy of same to be delivered as follows, to wit: William E. Whitfield, III, Esq. Copeland, Cook, Taylor & Bush Gulf Coast Professional Towers P.O. Box 10 Gulfport Mississippi bwhitfield@wewiii.com Nicholas Kane Thompson, Esq. Copeland, Cook, Taylor & Bush P.O. Box Hattiesburg Mississippi nthompson@cctb.com M. Jason Sumrall, Esq. Copeland, Cook, Taylor & Bush Gulf Coast Professional Towers P.O. Box 10 Gulfport Mississippi jsumrall@cctb.com And via First Class Mail, postage pre-paid, to: Hon. Lawrence Paul Bourgeois, Jr. Circuit Court Judge Circuit Court of Harrison County Post Office Box 1461 Gulfport, Mississippi So Certified, this the 20 th day of August, BY: /s/nicholas Van Wiser NICHOLAS VAN WISER 14

18 PREPARED BY: Nicholas Van Wiser, MSB#7339 BYRD & WISER Attorneys at Law 145 Main Street Post Office Box 1939 Biloxi, Mississippi Phone: Facsimile: nwiser@byrdwiser.com N:\Clients\Thrash - Ike\DKS Litigation - Circuit\Appeal to MS Supreme Ct\ Appeal Brief Reply not Rebuttal.wpd/krg 15