IN THE SUPREME COURT OF MISSISSIPPI
N O. 2014-CT-01443-SCT ROBERT W. STRATTON, SR.

v. JERRY McKEY ON WRIT OF CERTIORARI DATE OF JUDGMENT: 09/23/2011 TRIAL JUDGE: HON. FORREST A. JOHNSON, JR. COURT FROM W HICH APPEALED: AMITE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ROBERT W . STRATTON, SR. (PRO SE) ATTORNEY FOR APPELLEE: JERRY McKEY (PRO SE) NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: REVERSED AND RENDERED - 12/08/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. COLEMAN, JUSTICE, FOR THE COURT: ¶1. Robert W

. S tratton Sr. f iled a replevin acti o n , w i t h o u t bond, i n the Am ite County Circuit C ourt against Jerry McKey

. Stratton sought to recover an antique t ruck t hat he had

on McKey ’s property f

o r several y ears. The circuit court granted Stratton relief , conditioned

on Stratton pay ing McKey storage f e e s . Stratton appealed, and the Court of Appeals af f irm ed t he circuit c ou r t ’ s j u d gm ent. Stratton v. McKey , 2015 W L 7440260, *1 (¶¶ 1-2) (Miss. Ct. App. Novem

ber 24, 2015). W e granted certiorari review, and w e r e v e r s e the judgm ents of

the Court of

Appeals and the circuit court.FACTS AND PROCEDURAL HISTORY

¶2. Stratton p u rchased an a ntique truck and brough t i t , v i a t r a i ler, to a car repair and restoration business owned by John Shivers. Stratton and Shivers discussed the possibilities of Shivers restoring th e t r u c k b ut ultim ately concluded that n othing w ould be done to the truck f or a while. Stratton l ef

t the truck on Shivers’s business property

. No storage contract was in place between Stratton and Shivers to leave the truck there. ¶3. In 2 007, Shivers sold his business to McKey

. T he truck was still on the property and

rem ained there unt i l A p r i l 2 009 w hen Stratton requested to take possession of the truck. McKey responded that Stratton could take the truck, upon p ay m ent of a storage f

ee f or the several y ears t he t ruck had been stored on the property

. Stratton declined to pay the storage f ee because no storage a greem ent had been i n p l a c e , a n d i n October 2011, he f iled his replevin action, without bond, seeking possession of the truck. ¶4. The c ircuit court held a bench trial on Novem ber 30, 2010, and af

ter h earing testim ony f rom McKey and Shivers, orally ruled that Stratton was entitled to possession of the truck; however, possession was conditioned upon Stratton pay ing McKey $880 within thirty day s. Further, the circuit court ruled th at if Stratton f a i led to pay McKey within thirty day s, the truck would be considered a bandoned and t he property of McKey

. Following the oral ruling,
Stratton interjected a q

u estion of whether there w a s a b asis t o award McKey dam ages when McKey f ailed to f ile a responsive p leading requesting such. T he c ircuit court responded that the r eplevin action did n ot require a responsive pleading as it was essentially a s u m m ons f or McKey to appear in court.

2¶5. Stratton f iled his m oti o n f

o r r e l ief f rom judgm ent on Decem ber 30, 2010, noting,

am ong other things, that McKe y h a d “ f i l e d no responsive pleadings or a separate claim

versus [ Stratto n , ] ” a nd “[ t]here w as no evidentiary basis f or the [ circuit c]ourt to award [ McKey ] $1,000.” The circuit court entered a f i nal order on Septem

ber 23, 2011, deny ing
Stratton’s m otion and “ordered that [ Stratton’s] com p laint f or re p l e v i n without bond be denied[ ,]” because Stratton h ad n o t com plied with the circuit court’s oral ruling within thirty day s. As a result, Stratton f iled a m otion f

or a j udgm ent notwithstanding the verdict (JNOV),

or alternatively , f

or reconsideration and/or f or a new t rial. The circuit court f ound S tratton’s

m otion to be a successive m otion because Stratton relied on the sam e grounds f or both posttrial m otions. Stratton appealed, and we assigned the appeal to the Court of Appeals. ¶6. The Court of Appeals is s u e d a n o p inion unanim ously af f irm ing the circuit court’s judgm ent, though f

o r a dif f erent reason than that relied upon by the c ircuit court. Stratton , 2015 W L 7440260, *1 ( ¶¶ 1-2). The Court of Appeals explained that the circ u i t court’s denial of Stratton’s m o t ion f or a JNOV, or alternatively , f or reconsideration a nd/or f or a new trial because it was a successive m otion was incorrect. Id at *2 (¶ 8 ). The circuit court did

not m em orialize its ruling u n til the Septem ber 23, 2011, o rder; thus the Septem ber order is the f inal judgm ent f

rom w hich Stratton had ten day s to f ile a m otion t o reconsider. Id. at *2 (¶ 8). The Court o f Appeals concluded t hat the circuit court’s judgm ent should be af f irm ed because the circuit court’s decision was supported b y substantial, credible evidence based on Stratto n ’ s a n d McKey ’ s c onversations about M cKey ’s requested storage f ees. Id. at *2 (¶ 9).

3¶7. Stratton f iled h is petition f

or writ of certiorari on J une 14, 2016, a nd the Court granted it on Septem

ber 1, 2016. According to Stratton, the “prim e issue” is whether “a def endant

. . . in a civil action w ho f

iles no answer or c om

pulsory counterclaim b e awarded a m onetary judgm ent[ ;]” h owever, “a secondary i ssue f or [ the C]ourt

. . . is w hether [ Stratton] is entitled

to dam ages f

or deprivation of his property since April 27, 2009[ ,] as originally a lleged in the

com plaint.” Stratton a lso explains that the Court of Appeals f a iled to consider that the circuit
court’s Septem

ber 2011 o r d e r ef

f ectively reversed the b ench ruling t hat granted Stratton possession of

the truck and deprived him of due process.
STANDARD OF REVIEW ¶8. Because the instant case involves a b ench trial, the f actual f indings of a circuit court judge s itting without a j ury are a ccorded the s am e def erence as that of a c hancellor. City of
Jackson v

. Presley , 40 S o . 3 d 5 2 0 , 522 (¶ 9) (Miss. 2 010) (citation om itted). Thus, if the
f ac t ual f indings are s upported by “substantial, credible, and reasonable evidence[ ,]” they will

not be d isturbed on appeal. Id. W e review conclusions of law using the de novo standard.
Id. ANALYSIS ¶9. Af ter the circuit court announced its ruling, Stratton specif ically asked whether there

was a ny basis f

or t he a ward of storage f

ees to McKey when McKey did not f ile any response
to t he pleadings or a separate action asking f or the storage f

ees. The circuit court e xplained that, i n its opinio n, a replevin a ction dif f ered f rom a t y pical suit, and it was perm itted to award McKey the storage f ees based on McKey ’s appearance at the hearing and the evidence

4presented. Str a t t o n ’ s i n i tial appeal a nd petition f or writ of c ertiorari both challenge the circuit cour t ’ s a b i l ity to c ondition Stratton’s possession of t he t ruck on h is pay ing McKey dam ages that were never raised in a responsive pleading. Stratton’s argum ent has m erit. ¶10. Due process provides that “[ b]ef ore one m ay be judicially deprived of an im portant right, one m

ust be given (a) reasonable advance notice of a heari n g a t w h i c h (b) one is af f orded a m e aningf

u l opportunity t o a s s e r t and def end that right.” Branam a n v. Long Beach Water Mgm t. Dist. , 730 So. 2d 1146, 1149 ( ¶ 8) (Miss. 1999). W hile S tratton may have had knowledge that McKey believed he was e ntitled to storage f ees and would argue such at the hearing, and that McKey was considering f iling abandonm ent papers on the truck based on the certif

ied letter a nd bill Stratton r e c e i v e d , we have held that the “com plete absence of service of process of f ends d ue process and cannot b e waived.” Reasor v. Jordan , 110 So. 2 d 307, 317 (¶ 41) (Miss. 2013). McKey subm itted nothing to the circuit court prior

to t he hearing advising t h a t h e w a s seeking d am ages, s o n othing in the present case put Stratton on n otice that McKey would be pursuing a claim f or dam a ges in the replevin action. Additionally , as will be explained below, t he statutes pertaining to a replevin action brought under S ection 11-37-131 do n ot c ontain provisions perm itting d am ages outside of court costs if judgm ent is entered f

or the d ef endant. See Miss. Code Ann. §§ 1 1

- 3 7

- 1 4 1 , 1 1-37-143 (Rev. 2012). ¶11. W e hold that the circuit court erred in awarding McKey dam ages f or storing Stratton’s truck when McKey never f iled a responsive plead i n g g i ving Stratton notice that he was seeking dam ages. Because we hold t hat the circuit co u r t erred, i t f

ollows that we hold the

5Court of Appeals erred in af f irm ing the circuit court’s judgm ent. T heref ore, we reverse the circuit c ourt’s and Court of Appeals’ decisions, and we render judgm ent in f a vor of Stratton f or possession of the truck. ¶12. S t r a t t o n a d d i t i o n a l l y s e eks actual and punitive dam ages f or the l oss o f “ u s e , preservation, restoration[ ,] and the ability to display or sell his u ni que vintage vehicle[ .]”
Stratton’s initial c om

plaint contained a general request t hat M cKey “ be assessed r easonable attorney s f

ees, all costs of [ c]ourt and f or such o ther general a nd specif i c relief to which he

m ay be entitled.” Stratton never pursued his c laim f or dam ages a t tr i a l a n d p r e s e nted no evidence of how his dam ages should have b een calculated at trial or on direct appeal. 1 The
Court of Appeals’ opinion did not add r e s s S tratton’s c laim f or dam ages, t hough it was presented , albeit brief

l y , i n Stratton’s brief

, and it is only now, on certiorari review, that
Stratton explains he i s e n t i t l e d t o $1.00 per day of actual dam ages and $2.00 per day f or punitive dam ages. W e disagree. ¶13. Stratton b r o u g h t h i s r e p l e v i n a c t i o n u nder Mississippi Code Section 11-37-131 (em phasis added), which provides:
If an y p e r s o n, his agent or attorney , shall desire to institute an action of replevin without the necessity of posting bond, and without requesting the

1 A cco rd in g to S tratto n ’s b rief , th e ex ten t o f h is f

irst ap p eal o n th e d am ag es issu e w as th e f o llo w in g p arag rap h : Appe l l a nt ’ s pl e ad i n g f

o r r ep lev i n g iv es rise to d a m ag es f o r w r o n g f u l d eten tio n o f th e 1 9 4 9 an tiq u e tru ck

. T estim o n y b y ap p e llee is th at h e ref u sed t o retu rn it o n o r a b o u t A p ril 2 7 [ ] , 2 0 0 9

. T h u s , a p p ellan t’s co m p lain t f o r rep lev in , t h o u g h it d id n o t av er an am o u n t o f d am a g es f o r w ro n g f

u l d eten tio n , s u c h d am ag es are w ith i n th e d iscretio n o f a trial co u rt. C a in v. R o b in so n , 5 2 3 S o . 2 d 2 9 (M iss. 1 9 8 8 ). 6immediate seizure of t he property in question , he shall f i le a declaration under oath setting f

orth those m att e r s s hown in subparagraphs (a) through (e) of Section 11-37-101 and shall present such pleadings t o . . . a j u d g e of the circuit court,

. . . a nd such judge shall issue a f iat d irecting the clerk of such court, or a deputy clerk, to issue a sum m ons to the def endant, to appear bef

ore a court or judge having jurisdiction, as d eterm ined by the value of the property as alleged in the declaration, and as outlined in Section 11-37-101, with said process being returnable i n term tim e or in vacation, upon at least f ive (5) day s’ notice, sum m oning the def e ndant to appear f

o r a f inal hearing t o determ ine the rights of the parties a s to possession, and upon such f inal h e a r ing t he court shall enter judgm ent accordingly

. If the court deter mi nes that the plaintif f is successf

ul i n proving h is replevin case under Section 11-37-131, Mississippi Code Section 11-37-141 provides: Upon the trial of any replevin action in which the p roperty has not previously been s e i zed under w rit of replevin, if the judgm ent be f or t he plaintif

f , the court shall enter judgm ent awarding to the plaintif f the im m ediate p ossession of the property a nd such j udgm e nt shall order and direct the sherif f or other lawf u l o f f icer to im m ediately seize t he property in question, without f urther process upon the d ef

endant, and deliver said property to the plaintif f , a certif ied copy of the f inal judgm ent rendered in such case being f urnished to the sherif f a s evidence of his authority to seize such property and deliver it to the plaintif

f

. Likewise, the Legislature has p rovided the procedure f o r cases in w hich a c ourt determ ines that a def endant in a replevin action brought under Section 11-37-131 is successf ul:
In any replevin action in which the property has not been previously s eized by writ of r eplevin, if the def endant be successf

ul in such action, the j udgm ent of the court s h a l l b e t h at t he declaration of t he plaintif f be d ism issed a n d court costs assessed against the plaintif f

. Miss. Code Ann. § 11- 3 7

- 1 4 3 ( R e v . 2012). As is apparent f rom t he reading of all three statutes, the Legislature did not include a dam a ges provisi o n i n the statutes, though it did specif ically allow f

or dam a ges i n replevin actions brought under Mississippi Code Section
11-37-101. See Miss. Code Ann. § 11-37-127 (Rev. 2012) (judgm ent f or plaintif

f ); Miss.

7Code Ann. § 11-37-129 ( Rev. 2 0 1 2 ) ( judgm ent f

or def e ndant). Additionally , Stratton provides no cases in which a party has recovered dam ages f o r a replevin action brought under Section 11-37-131. Because dam ages resulting f rom a replevin brought pursuant to Section
11-37-131 have n o t been authorized by statute and b ecause Stratton f ailed to p ut f

orward any evidence of dam ages at trial, they m ay not be awarded in the case s ub judice

. CONCLUSION ¶14. “Replevin suits h a v e a l w ay s been dif f icult ones to t ry because of the nature of the

a ction. [ I]f Sir W alter S cott had been an attorney , certainly he would h ave said: ‘ Oh, what

a t angled w eb we weave, when b y replevin we retrieve.’” Standard Fin. Corp. v . Breland , 2 4 9 M i s s . 4 13, 426, 163 So. 2d 232, 237 (1964). W e hold that the circuit court erred i n awarding McKey dam ages f o r storing Stratton’s truck when M cKey never f iled a r esponsive pleading giving Stratton notice t hat he was seeking dam ages. W e reverse the judgm ents of the circuit c o u r t a n d the Court of Appeals and render judgm ent f or Stratton. Our holding today does n o t f

o r e close any other rem edy McKey m ay have u nder the law to pursue the storage f ees he claim s he is owed; however, in the p resent case, Stratton’s due process rights were violated when the circuit court entered a judgm ent against h im without McKey f iling

a counterclaim or separate cause of action to g ive Stratton n otice t h a t h e was seeking dam ages. ¶15. REVERSED AND RENDERED. WALLER, C.J., DICKINSON A N D R A N D O L P H , P . J J . , L A M A R, KITCHENS, KING AND BEAM, JJ., CONCUR. MAX W ELL, J., NOT PARTICIPATING.

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