IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-CA-01164-SCT KIMBERLEE DAV

E NPORT

v. HANSAWORLD, USA, INC.

DATE OF JUDGMENT: 07/13/2015 TRIAL JUDGE: HON. ROBERT B. HELFRICH COURT FROM W HICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: DANIEL MYERS W AIDE ATTORNEYS FOR APPELLEE: RICHARD MONTAGUE W

. THOMAS SILER, JR. JASON THOMAS MARSH NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: AFFIRMED - 01/19/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE RANDOLPH, P.J., COLEMAN AND MAX W ELL, JJ. COLEMAN, JUSTICE, FOR THE COURT: ¶1. HansaW o r l d U S A , I n c . ( H a nsaW orld) enrolled a f oreign judgm ent in the Forrest Coun t y Circuit Court against Kim berlee Davenport f

r om an award ordered by a court in Florida o n c l a i ms o f conversion and extortion. Davenport, a f o rm e r em

ploy ee of
H a nsaW o rld, also m a intained c laim s against HansaW orld in a separate action bef o r e a f ederal district c ourt in Mississippi a lleging s everal violations of state and f ederal law, including Title VII o f t h e Civil Rights Act f or sexual h arassm ent and discrim ination (Em ploy m ent Action).¶2. HansaW o rld sought t o c ollect on its f oreign j udgm ent by petitioning the c i rcuit court
to sell Davenport’s Em

ploy m ent Action, so the circuit court ent e r e d a Wr it of Execution.
W i th the E m

ploy m ent Action set to be auctioned of f by the Forrest County sherif f , Davenport f iled a n Em ergency Motion to Q uash W r it of E xecution m ere day s bef ore t he s cheduled sale. At a hearing on the m otion, the circuit c o u r t g r a n t e d D avenport’s m o tion t o quash on the condition that she post a $100,000 bond by that af ternoon, the day of t he scheduled sherif f ’s sale. Davenport f

a i l e d to post the conditional bond, and as a result, the sherif f sold her
Em ploy m ent Action t o t he highest bidder, HansaW orld, f or $1,000. Following sale of her
Em ploy m ent Action, Davenport appealed to the Court.

FACTS AND PROCEDURAL HISTORY ¶3. On January 13, 2 0 15, the Eleventh Judicial C ircuit in M iam i-Dade, F lorida, entered

a judgm ent against Kim

berlee Davenport in f

a vor of her f

orm er em p loy er HansaW o rld USA, Inc., o n c l a i ms o f conversion and extortion. In total, Davenport was ordered to pay HansaW orld $265,719.45. At t he sam e tim e as the p receding litigation, D a v e n p o r t

m aintained claim s against HansaW orld in the United States D istrict Court f or the Southern District of Mississippi alleging several violations of state and f ederal law, i ncluding Title VII of t he Civil Rights Act f

or sexual harassm ent and discrim ination (Em ploy m ent A c tion). To f urther c ollection o f the enrolled judgm ent, H a n s a World petitioned the Forrest County Circuit Clerk to enter a W rit o f Execution of Enrolled Judgm ent, a nd t he circuit clerk issued the writ, notif

y ing the Forrest County sherif f to auction of

f Davenport’s Em

ploy m e nt Action in a sherif

f ’s sale.

2¶4. Bef

ore the sherif

f ’s sale could com m ence, Davenport f iled f or C hapter 13 bankruptcy relief in Texas, w hich placed an autom atic stay on collection b y all o f her creditors, including
HansaW orl d

. H o w e v er, Davenport f ailed to appear at several b ankruptcy p roceedings, so the court dism issed her claim

. Following the dism issal, the circuit c l e r k entered an Alias
W r it of Execution of Enrolled Ju d g me nt i n a second attem pt to auction of

f Davenport’s
Em ploy m ent Action in a sherif

f ’s sale scheduled f

o r July 13, 2015. ¶5. On July 7, 2015, Davenport f iled an Em ergency Motion to Q uash W r it of Execution.
I n h e r mo t i o n to quash, Davenport argued that, due to the nature of t he claim s she wa s

m aking, the court s hould not allow h er Em ploy m ent A ction to be sold because d o i ng so would violate her c onstitutional r ights. Davenport also argued that her Title VII claim should
not be sold because the statute did not allow it, and the court would be going against public policy by selling a person’s civil actions. The circuit court scheduled a hearing on the m otion to quash f or July 13, 2015, the intended day o f the sherif

f ’s sale. ¶6. In response t o Davenport’s Eme rgency Motion, HansaW orld argued i n b rief and at the hearing that the em

ploy m ent action was Davenport’s property right, not a civil right, so i t c o u ld be sold at a sherif f ’ s s ale. HansaW orld supported its argum e n t b y stating t h a t h e r claims were under T itle VII, which conf e rs statutory rights, not constitutional rights.
HansaW orld also r equested t hat the circuit c o urt require Davenport to pay a b ond i f it granted the m otion to q

uash because allowing a stay of the sherif f ’s sale essentially was a tem porary injunction.

3¶7. At the hearing, the court granted the m otion to q uash but conditioned the g r a nt on Davenport posting a $100,000 bond by two o’clock that af ternoon or else the s herif

f ’s sale would proceed as scheduled. Davenport’s counsel did not object to the conditional bond at the hearing. 1 On the sam e d ay , the circuit court issued i ts Order Granting Em ergency Motion to Quash Alias W rit of Execution Conditioned On Posting of $100,000 Bond and within it stated: Af ter c onsidering the pleadings and the argum ents and represe n t a t ions of counsel, the court f

inds that the e me r g e ncy m o tion to q uash the a lias writ of execution shall be a nd hereby is granted, conditioned on the posting of a bond by Davenport in the am ount of $100,000.
IT IS THEREFOR E H E REBY O RDERED that if Davenport posts with the Cl e rk of this Court a bond in the am ount o f $100,000, the alias writ of execution w ill be q

uashed and t he s herif

f ’s sale of Davenport’s chose in action against Hansaworld scheduled f or 2:00 p.m . July

13, 2015, shall be stay ed.
IT I S FURTHER HEREBY ORDERED that if Davenport f ails to post with the Clerk of this Court a bond in the am ount o f $10 0 , 0 0 0 , b e f o re 2:00 p.m . July 13, 2015, the alias writ of execution will not be quashed and the sherif f ’s sale

1 Af ter both parties m ade their argum ents, the f ollowing exchange occurred: THE COURT: So this action in f ederal court [ (Em

ploy m ent A ction)] i s set f

or August? DAVENPORT: Yes, Your Honor. THE COURT: And if t here is recovery in t hat, y o u ’ l l g e t y our m oney o ut of it, right? HANSAW ORLD: Theoretically , y e s, sir. THE COURT: I am going to grant his [ sic] m o tion, b ut I’m going t o r e quire that he [ sic] post a $100,000 bond. Okay . Any thing f urther? HANSAW ORLD: W ell, Your Honor, if t he sale is scheduled at two o’clock this af ternoon, so will the sale be allowed to proceed – THE COURT: No. HANSAW ORLD: – if

the bond is not posted by then? THE COURT: If

the bond is not posted, y es.

4of Davenport’s chose i n action against Hansaworld scheduled f or 2:00 p .m . July 13, 2015 shall proceed as scheduled. ¶8. Af ter D avenport f

ailed to post the conditional b o n d , t h e c i r c u it court allowed the sherif f ’s sale to proceed, and the s herif f s old Davenport’s Em

ploy m e nt Action to the highest bidder, HansaW orld, f

or $1,000. Davenport f

iled a Notice of

Appeal on July 31, 2015. ANALYSIS
I. Whether the circuit court’s order granting the m otion to quash w as a final judgm ent. ¶9. In its brief

, HansaW orld raised the issue of the Court’s j urisdiction to hear the present appeal because, according to HansaW orld, there has not been a f i nal judgm ent in the m atter. Regardless of wh e t h e r t h e a ppellant, appellee, or n either raises a jurisdictional issue, the Court i s required to consider its own jurisdiction. Sm ith v. Parkerson Lum ber, Inc. , 890 So. 2d 8 3 2, 834 (¶ 1 2) (Miss. 2003) (citing Michael v. M ichael , 6 50 So. 2d 469 , 4 7 1 ( Miss. 1995)). ¶10. “W hether the circuit court had proper jurisdiction to hear a pa r t i c u l a r matter is a question of law” so “this Court m ust apply a de novo standard of review.” Burch v. Land Partners, L.P. , 784 So. 2d 925, 9 2 7 (¶ 7) (Miss. 2001). I n c onsideration of jurisdiction, the Court m ay question only a f inal, appealable judgm e nt or t hat which “adjudicates the m erits of the controversy a nd settles a ll issues as to all t he parties and requires no f urther action by the trial c o urt.” Brown v. Collec t i o n s , I n c . , 188 S o. 3 d 1171, 1174 (¶ 1 1) (Miss. 2016). Based upon the f

acts of t h e present case, we hold that the circuit court’s order granting Davenport’s m otion to quash t he writ of execution is a f i nal, appealable judgm ent. W e can

5discern no o ther actions f or t h e c i r c u i t c o u rt to take in the case a nd the parties have not identif ied any other issues that were not settled by the circuit court’s order.
II. Whether the circuit court abused its discretion in conditioning t he grant o f the m otion to q u a s h o n Davenport posting a $100,000 bond

. ¶11. Davenport argues that circuit court abused its discretion in ordering t he c onditional bond because it serves no purpose. HansaW orld disagrees and asserts that Davenport did not object t o the bond a t t h e h e a r i n g , so she cannot raise the present issue f or the f irst tim e on appeal. A lso, HansaW orld argues that the circuit court was well with i n i t s d iscretion to condition the quashing on a bond because the bond was security f or a request of injunctive relief pursuant to Mississippi Rule of Civil P r o c e d u r e 6 5 ( c). The o rder as well as the transcript are silent as to the court’s reasoning f or conditioning the quash on the posting of a $100,000 bond. ¶12. “The well-recognized r ule is that a trial court will not be put in error on a ppeal f o r a

m atter n ot presented to i t f or decision.” Harrington v. Office of Mississippi S e c r e t a r y of State , 129 So. 3d 153, 1 69 (¶ 41) (Miss. 2013) (i n t e rnal q uotation m arks om itted). Consequently , i f t he Court f inds that Davenport did not p resent the p r e s ent m atter in the circuit court, t h en “the [ present] issue is not properly bef ore the Court,” and the c a se should be dism i ssed as a result. Id. ¶13. HansaW o rld correctly a sserts that it asked the court, both in brief and at the hearing,
to condition any r e lief given to Davenport on t he posting of a bond, pursuant to Mississippi Rule of Civil Procedure 65(c). Davenport neither wrote a response brief to HansaW orld’s

6objection to the m otion to quash nor did she object at the h earing when the judge stated he

was going to grant the m otion t o quash but r equire that she post a $ 100,000 bond. Davenport
urges that she had no reason to respond to t he requirem ent that s he post a bond because she

was r equesting perm anent r elief – that t he writ be q

uashed f orever– negating the need f or the bond. However, we are n o t convinced that Davenport properly preserved her right to raise the a rgum ent on appeal solely because the circuit court did o r d id not grant the t y pe of relief

s he requested. Since Davenport never challenged the i m position of the bond b elow, the circuit court has never had an opportunity to address the appropriateness of the bond. ¶14. Davenport did not preserve the argum ent at t he circuit court, and we hold h er f ailure to do so waives her right to challenge the bond on appeal. CONCLUSION ¶15. Having determ ined that the circuit court’s order is a f inal, appealable judgm ent and that the Cou r t h a s j urisdiction to hear the appeal, we conclude that Davenport waived her right to challenge the circuit c ourt’s im p osition of the b ond on appeal because she f ailed to challenge the bond bef

ore the circuit court. W e af f irm

. ¶16. AFFIRMED. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., M A X WELL, BEAM AND CHAMBERL I N , J J., CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J. KING, JUSTICE, DISSENTING:

7¶17. The m ajority argues that Davenport did n ot object to the bond set on the condition of

granting her m otion to quash, a nd that she thus waived any objection t o the sam e on appeal. Because I believe that the Court should address the issue, I respectf ully dissent. ¶18. It is true that when a party f ails to object a t the trial court level, “the point of error is
not p r e s e r v e d on appeal.” State Highway Com m ’ n o f Mississippi v. Hym an , 592 So. 2d 952, 957 (Miss. 1991). H owever, “[ t]his Court retains the p ower to notice plain error.” Id. “The plain error doctrine ref l ects a policy to adm inister the law f airly a nd justly

. 2 A party is protected by the plain error rule when (1) h e has f ailed to perf

ect his appeal and ( 2) when a substantial r ight is af

f ected.” Id. In this case, a substantial r ight is af f e c ted, as Davenport had her entire Title VII lawsuit stripped f rom her control – purchased by the def e ndant in that

s u i t i t s e lf

. Moreover, the trial court com m i tted p lain error by conditioning the grant of a

m otion t o quash on the p osting of a bond, som ething that w as not within its power to do under Rule 65. ¶19. Mississippi Rule of Civil Procedure 65 provides that
No restraining order or prelim inary injunction shall issue except upon the giving of security by t he a pplicant, in such sum as the court deem s proper, f or the pay m e nt of such costs, dam ages, and reasonable attorney ’s f ees as m a y be incurred or suf

f ered by any party who is f o u n d t o have been wrongf ully enjoined or restrained[ .] M.R.C.P. 65(c). The trial court did not issue a restraining order or prelim inary injunction, thus R ule 65 does n o t a p p l y . And Hansaworld does not point this Court to any other

2 T h e p l ain erro r d o c trin e is co n sisten t w ith th e j u d icial o a t h o f o f f ice. M iss. C o n st. art. 6 , § 1 5 5 (“I w i ll ad m in ister j u stice w ith o u t resp ect to p erso n s, a n d d o eq u al r ig h t to th e p o o r an d to th e rich [ .] ”). 8authority f

or granting a bond i n t h i s c a s e . Hansaworld argues that the trial c ourt’s order granting a m otion to q

uash is t antam ount to a prelim inary injunction. B ut it is not. First, the order in n o w a y enjoins or restrains Hansaworld, so the purpose of requiring a bond is unclear

. Second, granting a m otion to quash of f e rs perm anent relief

, while granting a prelim inary injunction of f ers tem porary relief

. An order g r a nting a m otion to quash determ ines that the instrum ent to be quashed is irretrievably im proper and should be elim inated. ¶20. To “quash” m ean s “ [ t ] o a n nul o r m ake void; to term inate.” Q uash , Black’s Law Dictionary (10th ed. 2014). A “ m otion to quash” i s theref ore “[ a] party ’s r e q u est that the
court nullif

y process or a n act instituted b y t he other party , a s in seeking to nullif y a subpoena.” Motion to Q uash , Black’s Law D ictionary (10th ed. 2014). The trial court in this

case f ound that, a f

ter considering the pleadings and argum ents, “the eme r g ency m otion to quash the alias writ of execution shall be and hereby i s granted, conditioned on the posting of a bond by Davenport i n the am ount of $100,000.” Thus, the trial court f ound that the alias writ of execution should be com p letely nullif

i ed, as it apparently f

ound that such alias writ

was im prop e r . T o condition the com plete nullif

ication of an i m

p roper instrum ent on the
p o s t i ng of security is problem a tic and o utside the scope of the rules. Either t he writ o f execution is im

proper a nd s h ould be q

uashed regardless of ability to pay , or it is p roper and should be allowed. M oreover, q uashing an instrum ent, n ullif y in g i t f o rever, in no way threatens t o im

properly enjoin or restrain Hansaworld. Thus, t he trial court was without the

9authority to condition t he gr a n t o f t h e mo t i o n to quash on t he posting of a bond. For this

reason, I believe that the judgm ent of the trial court should be reversed. KITCHENS, J., JOINS THIS OPINION.

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