IN THE SUPREME COURT OF MISSISSIPPI COURT of APPEALS of the STATE of MISSISSIPPI

E-Filed Document May 12 2016 21:16:49 2015-CA-01801 Pages: 16 IN THE SUPREME COURT OF MISSISSIPPI COURT of APPEALS of the STATE of MISSISSIPPI EARL AND MAXCINE ROSS vs. VS. SHELLIE R. STEW ART APPELLANT CAUSE NO. 2015-CA-01801 APPELLEE BRIEF OF THE APPELLANT (Oral Argument Requested) Charles E. Miller, Miss. Bar No. 8330 Miller & Miller, Attorneys Attorney for Appellants Post Office Box 1303 McComb, Mississippi 39648-1303 Telephone: (601) 249-0017 Facsimile: (601) 249-0598 Email: charlesemiller@millerlawyers.com charlesemiller~millerlawyers.com W. Stewart Robison, Esquire Attorneys and Counselors at Law Post Office Drawer 1128 McComb, Mississippi 39649 Email: stewartr@robinson-holmes.com Honorable David Strong Pike County Circuit Court Judge Post Office Drawer 1387 McComb, Mississippi 39648 Email: dstrong@cableone.net

IN THE SUPREME COURT OF MISSISSIPPI COURT of APPEALS of the STATE of MISSISSIPPI EARL AND MAXCINE ROSS VS. SHELLIE R. STEW ART APPELLANTS CAUSE NO. 2015-CA-01801 APPELLEE 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 Justices of this Court may evaluate possible disqualification or recusal. NAME POSITION Earl and Maxcine Ross Shellie Stewart Honorable David Strong Charles E. Miller, Esquire Appellants Appellee Pike County Circuit Court Judge Counsel for Appellant W. Stewart Robison, Esquire Charles E. Miller, Miss. Bar No. 8330 Miller & Miller, Attorneys Attorneys for Appellants, Earl and Maxcine Ross Post Office Box 1303 McComb, Mississippi 39648-1303 Telephone: (601) 249-0017 Facsimile: (601) 249-0598 Email: charlesemiller@millerlawyers ii

IN THE SUPREME COURT OF MISSISSIPPI COURT of APPEALS of the STATE of MISSISSIPPI EARL AND MAXCINE ROSS VS. SHELLIE R. STEW ART APPELLANTS CAUSE NO. 201S-CA-01801 APPELLEE TABLE OF CONTENTS Certificate of Interested Persons Table of Cases andautllorities Statement of the Issue Statement of the Case Statement of Facts Standard of Review Argument Conclusion Certificate of Service Page ii iv 1 1 4 4 1 9 10 iii

IN THE SUPREME COURT OF MISSISSIPPI COURT of APPEALS of the STATE of MISSISSIPPI EARL AND MAXCINE ROSS VS. SHELLIE R. STEWART APPELLANTS CAUSE NO. 201S-CA-Ol SOl APPELLEE T ABLE OF CASES AND AUTHORITIES PAGES Cases Barnes v. McLeod, 165 Miss. 437 (1932)....................... 8 Burnett v. Bass, 152 Miss. 517 (1929)......... 7 Caterpillar Fin. Servs. Corp. v. Burroughs Diesel, Inc., 125 So. 3d 659 (Miss. Ct. App. 2013)........................ 9 Dungan v. Dick Moore, Inc., 463 So. 2d 1094 (Miss. 1985)..................... 8 Hall v. Corbin, 478 So. 2d 253 (Miss. 1985)...... 7,9, 10, 11 IP Timberlands Operating Co. v. Denmiss Corp., 726 So. 2d 96 (Miss. 1998)......... 9 Puckett Mach. Co. v. Edwards, 641 So. 2d 29 (Miss. 1994).................... 9 Shaw v. Owen, 229 Miss. 126 (1956)....................... 8 Simmons v. MisSissippi Transp. Comm 'n, 717 So. 2d 300 (Miss. 1998)........ 9 Tideway Oil Programs, Inc. v. Serio, 431 So. 2d 454 (Miss. 1983).................... 7, 8,9 iv

Statutes Miss. Const., 156.................... 8 Cases Am. Elec., a Div. of FL Indus. v. Singarayar, 530 So. 2d 1319 (Miss. 1988)... 8 Barnes v. McLeod, 165 Miss. 437 (1932).................. 6 Burnett v. Bass, 152 Miss. 517 (1929)............ 6 Canton Farm Equip., Inc. v. Richardson, 501 So. 2d 1098 (Miss. 1987)...... 8 Caterpillar Fin. Servs. Corp. v. Burroughs Diesel, Inc., 125 So. 3d 659 (Miss. Ct. App. 2013)............ 9,10 City of Durant v. Humphreys Cty. Mem'[ Hosp.!Extended Care Facility, 587 So. 2d 244 (Miss. 1991)............ 7 Entergy Mississippi, Inc. v. Burdette Gin Co., 726 So. 2d 1202 (Miss. 1998)......... 5 Fin. Am. Private Brands, Inc. v. Durbin, 370 So. 2d 1356 (Miss. 1979)......... 6 Gibson v. Manuel, 534 So. 2d 199 (Miss. 1988)............ 8 Hall v. Corbin, 478 So. 2d 253 (Miss. 1985)........... 6, 7, 8, 9 Hood v. Mississippi Dep't of Wildlife Conservation, 571 So. 2d 263 (Miss. 1990)......... 7 IP Timberlands Operating Co. v. Denmiss Corp., 726 So. 2d 96 (Miss. 1998).............. 7, 8, 9 Magee v. Covington Cty. Bank, 119 So. 3d 1053 (Miss. Ct. App. 2012)................. 5 v

McDonald's Corp. v. Robinson Indus., Inc., 592 So. 2d 927 (Miss. 1991)............................ 8 Puckett Mach. Co. v. Edwards, 641 So. 2d 29 (Miss. 1994)........................................ 7, 8 RAS Family Partners, LP v. Onnam Biloxi, LLC, 968 So. 2d 926 (Miss. 2007)................. 7 Shaw v. Owen, 229 Miss. 126 (1956)............... 6 Tideway Oil Programs, Inc. v. Serio, 431 So. 2d 454 (Miss. 1983)... 6 Statutes Miss. Const., 156.......................... 6 Rules Miss. R. Civ. P. 13...................................... 8 Miss. R. Civ. P. 13(a)................................. 10 vi

STATEMENT OF THE ISSUE Whether the trial court committed error in declining to accept jurisdiction of the counterclaim filed in response to the Complaint in Replevin. STATEMENT OF THE CASE On the 5 th day of October, 2015, the Appellee, Shellie R. Stewart, filed a complaint for replevin of a mobile home in the possession of the Appellants, Earl and Maxcine Ross. On the 16 th day of October, 2015 the Appellants, Earl and Maxcine Ross, filed their response, defenses and counterclaim, alleging among other things, breach of contract. The Rosses moved to add additional necessary parties. The trial Court dismissed the counterclaim, and scheduled a trial on the replevin action. The Court granted the replevin and awarded possession of the mobile home to the Appellee, Shellie R. Stewart. Earl and Maxcine Ross, thereafter, appealed to this Court. STATEMENT OF FACTS The plaintiff, Shellie R. Stewart, filed a complaint for replevin against Earl Ross (R-2), and later added Earl Ross's wife, Maxcine Ross, as a defendant. The complaint alleged that the defendant was in wrongful possession of a mobile home owned by Shellie Stewart (R-2). The defendants, Earl and Maxcine Ross, filed their response and counter-claim against Shellie Stewart and joined Genevieve Ross as necessary party. (R-6) The trial court ordered the parties to brief the issue of whether the defendants' counterclaims could be entertained by the court in the trial of the action in replevin. After the briefing, the trial court dismissed the counterclaims, ruling that the issues were not properly before the court in the replevin case. (T-16) 1

At the trial of the replevin action the Court heard the testimony of the witnesses including that of Shellie Stewart. Shellie Stewart testified that he was the owner of the mobile home and that the Ross family was illegally in possession of said mobile home. He further testified that he had purchased the mobile home from Genevieve Ross on June 3, 2015 in the amount of $52,000.00. (T-30) Maxcine Ross testified that she and her husband, Earl Ross, had rented the mobile home for approximately 5 (five) years from Genevieve Ross, (T-69) and that Genevieve Ross had collected rent on said mobile home up to and including the month of May, 2015. (T-70) Thereafter, Maxcine and Earl Ross discovered that the mobile home had been sold to Shellie Stewart. (T-70) Maxcine Ross also testified that on or about August 13, 2015, Shellie Stewart called Earl Ross, offering to sell the mobile home for $42,000.00 (T-71) After trying to get financed to purchase the mobile home for the $42000.00 and finding no one to finance the purchase of a mobile home from private owners, the Rosses informed Shellie Stewart of their inability to obtain the funds to purchase the mobile home at the quoted price.(t -71) Stewart then offered to sell the mobile home to Earl and Maxcine Ross, at the stated price of $42, 000.00 payable in monthly installments of $600.00 per month, without interest, with the stipulation that the full price be paid off within one year. Stewart further, added that if the mobile home was not paid off by the end of one year that the price would increase to $52,000.00, still with no interest. (T- 71 ) The Rosses accepted this offer. Shellie Stewart was responsible for having the agreement drafted. (T-71) 2

Instead of producing the documents for the Rosses to sign, on or about August 31, 2015 Shellie Stewart called Earl Ross and informed him that his advisor told him that he would lose too much money. On cross examination Shellie Stewart testified to the following: "Q.You had a number of conversations with them proposing to sell the property to them; is that correct? A. I didn't have a number of them. We talked two or three times, about two or three times, I think I called Q. And you called them; is that correct? A. I did. Q. Previously-previously, when you were on the stand last Monday, you indicated that you did not call them to discuss negotiation on the purchases of the mobile home. A. I didn't say I didn't call them. Q. Okay. A. We talked. Before I left Alaska, I talked to them about buying the motor home. They asked me think about it and I didn't get anyone to buy the motor home here-mobile home. So I called the Ross, since they were staying there... So, so when I - - I told Mr. Ross, I said, I rather you have the -- buy the motor home... So I called him on, I believe it was on a Friday. I said, what have you decided. He said, well, I wouldn't mind having the motor home, he said I want that motor home in that spot cause my mother and daddy have it, but I don't have the money to finance it. And so I said, well, maybe we could make some kind of arrangement. He said, how much you want for it again? And I said - I told him, I said, if you give me some cash right now, I'll sell it to you for 50,000.00. He said, we can't do it. He said, would you fmance it for, I think about three to five years. I said, well, I can - - I can look at that, you know what I mean. So I said - - he said, how much I got to pay if -- if you finance it. I said $600.00 a month. And then he said, yes, he said, I can handle that." 3

ST ANDARD OF REVIEW Jurisdiction is a matter of law, which is reviewed de novo. Entergy Mississippi, Inc. v. Burdette Gin Co., 726 So. 2d 1202, 1204-05 (Miss. 1998) Magee v. Covington Cty. Bank, 119 So. 3d 1053, 1056 (Miss. Ct. App. 2012) ARGUMENT The legal action to seek a Replevin of goods was created by statute. At one time the law greatly limited the manner and extent to which the court could entertain claims beyond whether the complaining party was entitled to possession of the item in question and whether any damages accrued to the defendant. The trial judge relied on Fin. Am. Private Brands, Inc. v. Durbin, 370 So. 2d 1356, 1358 (Miss. 1979) to support the finding that the court did not have jurisdiction to hear the counterclaim filed in response to the action in replevin. This case, while not having been overruled, was not applicable to the instant case, as current caselaw, the Mississippi Rules of Civil Procedure, and new legislation have supplanted the rationale and reasoning of said case. The law has since been extended, allowing the Court to address any claim that arises from the same set of circumstances or occurrence, or that arise from a common nucleus of fact, even claims in equity. Since Hall v. Corbin, 478 So. 2d 253 (Miss. 1985) the courts have reasoned that if the principal issue is properly before the circuit court, the court has jurisdiction to decide all issues. "We (and every other court in the land) have long held that once a court acquired actual subject matter jurisdiction of an action, other claims (whether asserted by the one or more of the original parties or by new or intervening parties), ancillary or pendent to the original claim could also be litigated in that action even though the ancillary or pendent claim standing alone may have been beyond the court's jurisdiction. To fall 4

within pendent or ancillary jurisdiction, the intruding claim must arise out of the same transaction or occurrence as the principal claim or, as others put it, out of a common nucleus of operative fact. The principal context in which we have recognized these notions is that where "legal claims" have been asserted in chancery court, pendent to the principal equity claim. Tideway Oil Programs, Inc. v. Serio, 431 So. 2d 454, 464 (Miss. 1983); Burnett v. Bass, 152 Miss. 517, 521 (1929). There is no reason or principle why the converse should not also be true: where a circuit court has jurisdiction of an action at law, it may hear and adjudicate in that action all claims, including those with an equitable smell, arising out of the same transaction and occurrence as the principal claim. Compare Shaw v. Owen, 229 Miss. 126, 133 (1956); see also, Tideway Oil Programs, Inc., 431 So. 2d 454 and accompanying text. Indeed, the converse would appear even more appropriate in that our circuit courts are courts of general jurisdiction, Miss. Const., 156, while our chancery courts are regarded as courts of special or limited jurisdiction. Barnes v. McLeod, 165 Miss. 437 (1932)." Hall, 478 So. 2d at 255 The Mississippi Supreme Court has made the same or similar pronouncements in a number of cases. As stated in Hall v. Corbin, 478 So. 2d 253, 256 (Miss. 1985), "These rules at most sweep away procedural barriers to the assertion of claims otherwise within the court's jurisdiction." Current case law supports the expanded jurisdiction of the circuit court. Although chancery courts are courts of limited jurisdiction, circuit courts are courts of general jurisdiction. IP Timberlands Operating Co. v. Denmiss Corp., 726 So. 2d 96, 112 (Miss. 1998) (citing Hall v. Corbin, 478 So. 2d 253 (Miss. 1985». Therefore, "if one issue is properly before the circuit court it has jurisdiction to decide all issues." Id. at 111. To determine whether a court has subject matter jurisdiction, we look to the face of the complaint, examining the nature of the controversy and the relief sought. City of Durant v. Humphreys Cty. Mem'l Hosp.!Extended Care Facility, 587 So. 2d 244, 250 (Miss. 1991); Hood v. MiSSissippi Dep'! of Wildlife Conservation, 571 So. 2d 263, 266 (Miss. 1990) overruled by E. Mississippi State Hosp. v. Callens, 892 So. 2d 800 5

(Miss. 2004). In complaints seeking legal relief, even in combination with equitable relief, (which formerly would have required a transfer to chancery), the circuit court can have proper subject matter jurisdiction. RAS Family Partners, LP v. Onnam Biloxi, LLC, 968 So. 2d 926, 928 (Miss. 2007) In the interest of judicial economy, the Mississippi Rules a/civil Procedure have allowed for the expansion of the jurisdiction of the trial court recognizing pendant and ancillary jurisdiction. Thus, allowing for a full trial on all claims, including counterclaims to be heard even in actions in replevin. See Puckett Mach. Co. v. Edwards, 641 So. 2d 29, 35 (Miss. 1994) "It does not really matter that this began as a replevin matter. Puckett's entitlement to possession turns on whether it is due money from Edwards. That determination involves more than the question of what Edwards has paid. It also involves a determination whether Puckett owes Edwards, entitling Edwards to, in effect, a set off. See, Miss. R. Civ. P. 13 and Comment. We have long since determined that under the Mississippi Rules of Civil Procedure, the fact that an action begins as one in replevin does not dictate the relief ultimately granted or the course of the litigation. Hall v. Corbin, 478 So. 2d 253 (Miss. 1985). Puckett Mach. Co. v. Edwards, 641 So. 2d 29,35 (Miss. 1994)." As stated in Hall v. Corbin, 478 So. 2d 253 (Miss. 1985), and followed in "McDonald's Corp. v. Robinson Indus., Inc., 592 So. 2d 927, 934 (Miss. 1991) A claim is pendent if it "arises out of the same transaction or occurrence as the principal claim or, as others put it, out of a common nucleus of operative fact. The McDonald's court stated that, "A circuit court has also been allowed to hear equity claims via pendent jurisdiction. Gibson v. Manuel, 534 So. 2d 199 (Miss. 1988) (circuit court could consider a motion for preliminary injunction); Am. Elec., a Div. of FL Indus. v. Singarayar, 530 So. 2d 1319 (Miss. 1988) (circuit court could consider claims for 6

equitable relief); Canton Farm Equip., Inc. v. Richardson, 501 So. 2d 1098 (Miss. 1987) (circuit court could consider claims for equitable relief). In fact, in Hall v. Corbin, 478 So. 2d 253 (Miss. 1985), we indicated that it is more appropriate for a circuit court to hear equity claims than it is for a chancery court to hear actions at law since circuit courts have general jurisdiction but chancery courts enjoy only limited jurisdiction. A later case, quoting Hall v. Corbin, 478 So. 2d 253 (Miss. 1985), IP Timberlands Operating Co. v. Denmiss Corp., 726 So. 2d 96, 111 (Miss. 1998), also supports the jurisdiction of the trial court to hear all claims surrounding the core of the litigation. The Court confirmed the ruling in Hall v. Corbin, 478 So. 2d 253 (Miss. 1985) and referred to it as the leading case discussing pendent jurisdiction of the circuit court. Factually, IP Timberlands involved issues pending in the Hinds County Circuit Court. The Supreme Court ruled that the court had pendent jurisdiction to hear the sand and gravel issue, and remanded the case to the lower Court. The pending issues involved claims by IP that Denmiss breached the contract in bad faith. Since it was the same contract which gave rise to the sand and gravel issue the Court said that the issue arose from the same transaction or occurrence as the pending claims. Thus, jurisdiction was proper, stating that, "We have made clear that our trial courts, chancery and circuit, have full jurisdiction to adjudicate all claims in a single action without regard to whether they arise in equity or at law".ip Timberlands Operating Co. v. Denmiss Corp., 726 So. 2d 96 112 (Miss. 1998) In Caterpillar Fin. Servs. Corp. v. Burroughs Diesel, Inc., 125 So. 3d 659 (Miss. Ct. App. 2013), a lessor of an excavator brought a replevin action in county court seeking possession of the excavator. The owner of the mechanic shop that had possession of the excavator answered, asserting a mechanic's lien and alleging that it was entitled to possession until it received 7

payment for repairs and storage. The County Court granted the mechanic shop's motion to dismiss, and the lessor appealed to circuit court. In a separate lawsuit, the mechanic shop brought an action in chancery court to enforce the mechanic's lien. The lessor filed a responsive pleading alleging that claims were pending in an action before county court, and filed a motion to dismiss or transfer the matter to county court. The Chancery Court transferred the matter to circuit court. In the replevin action, the Circuit Court affumed the county court's decision. The lessor appealed. In the mechanic's lien action, the Circuit Court, entered summary judgment in favor of the mechanic shop, and the lessee appealed. In ruling on the varied claims brought in the various courts the Mississippi Supreme Court again relied on Hall v. Corbin, 478 So. 2d 253 (Miss. 1985), holding that: "We (and every other court in the land) have long held that once a court acquired actual subject matter jurisdiction of an action, other claims (whether asserted by the one or more of the original parties or by new or intervening parties), ancillary or pendent to the original claim could also be litigated in that action even though the ancillary or pendent claim standing alone may have been beyond the court's jurisdiction." The Court went on to state that a counterclaim should have been filed and litigated in the action. "we recognize that this issue could have been avoided if Burroughs had filed a compulsory counterclaim under Miss. R. Civ. P. 13(a), which provides: Compulsory Counterclaims. A pleading shall state as a counter-claim 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." 8

Caterpillar Fin. Servs. Corp. v. Burroughs Diesel, Inc., 125 So. 3d 659, 673 (Miss. Ct. App. 2013) Counter-claims are compulsory if there is "any logical relation between the original claim and the counter-claim". The Court directed that, under 13 (b), all other claims may be brought by a party in one action. Under M.R.C.P. 13(c), a counter-claim may ask for more or different relief than that sought by the opposing party. Caterpillar Fin. Servs. Corp. v. Burroughs Diesel, Inc., 125 So. 3d 659, 673-74 (Miss. Ct. App. 2013) Mississippi law is settled regarding the jurisdiction of the Circuit Court to hear a defendant's counterclaim filed in an action in replevin. CONCLUSION Appellants, Earl and Maxcine Ross, respectfully pray that this Court will reverse the ruling of the lower court, reinstate the counterclaim, and remand this matter for a full hearing on the merits. This, the 12th day of May, 2016. Counsel/or Appellants: Charles E. Miller, Esquire (Miss. Bar No.8330) Miller & Miller, Attorneys 116 Fifth Avenue (39648) Post Office Box 1303 9

McComb. Mississippi 39649 Telephone: 601-249-0017 Facsimile: 601-249-0598 charlesemiller@millerlawyers.com CERTIFICATE OF SERVICE I, Charles E. Miller, counsel for Earl and Maxcine Ross, hereby certify that on May12, 2016, I electronically filed the foregoing Brief of the Appellant with the Clerk of the Court using the MEC system which sent notification of such filing to the following: W. Stewart Robison, Esquire Attorneys and Counselors at Law Post Office Drawer 1128 McComb, Mississippi 39649 Email: stewartr{ii{robinson-holmes.com Honorable David Strong Pike County Circuit Court Judge Post Office Drawer 1387 McComb, Mississippi 39648 Email: dstrong@cableone.net 10