IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CA-01801-COA
EARL ROSS AND MAX CINE ROSS APPELLANTS

v.
SHELLIE R. STEWART APPELLEE
DATE OF JUDGMENT: 11/16/2015 TRIAL JUDGE: HON. DAVID H. STRONG JR. COURT FROM W HICH APPEALED: PIKE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: CHARLES E. MILLER ATTORNEYS FOR APPELLEE: W

. STEW ART ROBISON MICHELLE W R OTEN VAN NORMAN NATURE OF THE CASE: CIVIL - OTHER TRIAL COURT DISPOSITION: REPLEVIN GRANTED; COUNTERCLAIM DISMISSED W ITHOUT PREJUDICE DISPOSITION: AFFIRMED - 04/25/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ. WESTBROOKS, J., FOR THE COURT: ¶1. Shellie R. Stewart f iled a com

plaint f or r eplevin of a m obile hom e in the p ossession
of Earl a nd Maxcine Ross (“Rosses”). The Rosses f iled a counterclaim alleging, am o n g
other things, brea c h o f c ontract. The Circuit Court of Pike County dism i ssed the Rosses’
counterclaim and scheduled a t rial on the replevin action. The court granted the replevin and
awarded p ossession of the m obile hom e to S tewart. The Rosses now a p p e a l

. A f

ter our
review of the record, we af

f i rm the judgm ent of

the circuit court.
FACTS AND PROCEDURAL HISTORY¶2. Genevieve R o s s 1 o w n e d a m obile hom e with her husband, Felder Ross, as joint

tenants. She f

iled p aperwork convey ing title o f t h e mo bile h om e to herself f ollowing her
husband’s d e a t h

. Stewart 2 purchased the title o f the m obile hom e f rom Genevieve. The
Rosses rented the m obile hom e f rom Genevieve f

o r approxim ately

f ive y ears. The Rosses contend they

entered into a n oral agreem ent with Stewart to purchase the m o bile hom e f or
cash. Maxcine Ross testif ied that S t e w a r t o f

f ered to sell the m obile hom e, at the price of $42,000 pay able i n m onthly installm ents of $600 per m onth, without interest, provided f ull

pay m ent was received w ithin one y ear. However, if i t was not paid within o ne y ear, the price
would increase to $52,000, with no interest charged. At trial, Stewart testif i ed h e was willing

to sell, until the Rosses asked Stewart to f inance the purchase of the hom e to allow them to

pay r ent. Stewart also testif i ed that the Rosses wanted h im to pay $300 dollars per m onth to
kee p t h e mo b i l e hom e on their l and, because S tewart was not legal owner of the land.
However, Stewart rejected this agreem ent a s well. Stewart and the R osses testif ied that no

m oney was ever paid to Stewart f or the m o bile hom e. ¶3. Stewart f

iled a com

plaint f or replevin against Earl Ross. Earl f ile d h i s r e s ponse,
def enses, and a c ounterclaim a lleging breach of f i duciary d uties, breach of c ontract, breach
of im plied covenants of good f a i t h a nd f

air dealing, f

raudulent m isrepresentation and/or

o m i s s i o n , n e g l i g e n t m i s r e p r e s e n t a t i o n a n d / o r o m i s s i on, unconscionability , e m o t i o n a l d i s t r e s s ,

1 In th e reco rd , S tew art ref ers to G en ev iev e as th e R o s s es’ “au n t.”

2 S tew a rt an d E a rl R o s s are f irst co u sin s. 2and conspiracy

. Earl also m oved to add Gen e v i e v e a n d W ebster Chess 3 to the cause of

action. ¶4. Stewart f

iled his a nswer, and Maxcine, E arl’s wif e, was added as a party def endant

to the action. The circuit c ourt ordered the parties to brief the issue of whether the Rosses’
counterclaim c o u l d b e entertained by t he court at t rial. The circuit c o urt dism issed the
counterclaim without prejudice and cited Finance America Pri v ate Brands Inc. v. Durbin , 370 So. 2d 1356 (Miss. 1973), holding that dam ages m ust be sought af

ter judgm ent on the
issue of possession and not by way of a counterclaim

. Additionally , the circuit court f ound
that the Rosses could f

ile their action f

o llowing the court’s decision on possession. ¶5. Although the circuit court ruled that ther e w a s no jurisdiction o ver the Rosses’

c o unterclaim , the court a llowed the Rosses to present t heir d ef ense o f b reach of co n t r a c t

. Finding no binding agreem ent between Stewart and the Rosses, the circuit c ourt f ound that
Stewart properly obtained title of the m obile hom e a nd g ranted t h e r e p l e v in. The Rosses

were ordered to vacate the m obile hom e im m ediately

. Stewart w as given s e venty -two hours

to retrieve the m obile hom e f rom its location, because it w as determ i ned that S tewart did not

own the land on which the m obile hom e was located. Additionally , af te r t h e c i r c u i t court
dism issed their counterclaim , the Rosses f i led a com

plaint in the C o u n t y C o u rt of Pike
C o u n t y a lleging f

ive o f the seven o riginal c l aim s c ontained in the counterclaim against Stewart, Genevieve, and Chess.

3 C h e ss w a s a reb u ttal w itn ess. H e testif i ed th at E arl stated h e w as n o t p ay in g an y m o n ey to S tew art f

o r th e m o b ile h o m e. S tew art stay s w ith C h ess w h en h e is in to w n
. C h ess also g r ew u p w ith b o t h E arl an d S tew art, an d liv e d clo se to th e R o sses d u rin g th e trial.
3STANDARD OF REVIEW

¶6. “Jurisdiction is a m atter of law, which i s reviewed de novo.” Magee v. Covington Cty. Bank , 119 So. 3d 1053, 1056 (¶10) (Miss. Ct. App. 2012) (quoting Entergy Miss. Inc.
v. Burdette Gin Co. , 726 So. 2d 1202, 1204-05 (¶5) (Miss. 1998)).
DISCUSSION
Whether the trial court erred in declining t o accept jurisdic t i o n of t he counterclaim filed in response to the com plaint in replevin. ¶7. Bef

ore the adoption of t he Mississippi Rules of Civil Procedure (ef f ective January 1, 1982), the Mississippi Suprem e C ourt held that “af ter a caref

ul consideration o f the of f ice
of r e p l e vin, we have reached the conclusion that the Laws of 1975, ch. 508, do not perm it

a def endant to f

ile a counterclaim or recoupm ent e xcept f o r the specif

ic statutory dam ages.”
Gen. Motors Acceptance Corp. v. Fairley , 359 So. 2d 1386, 1388 (Miss. 1978). “A replevin
action is a possessory action f or specif ic property and not a suit f or m o netary dam ages.” Id

. “No provision is m ade u nder the above law f or a judgm ent of m oney , except f or t he wrongf

ul taking, detention, va l u e o f t h e specif ic property , or dam ages f o r wrongf ul suing out of the
writ.” Id

. ¶8. Now, we acknowledge that Mississippi Rule of Civil Procedure 13 allows the court
to consider com

pulsory and perm issive counterclaim s: ( a ) C o m pulsory Counterclaim s. A p leading shall state as a counterclaim any claim which at the tim e of serving the pleading the p le ader h as against any opposing party if it aris es out o f the transaction or occurrence that is the subject m atter o f the opposing party ’ s c l a i m and does not require f or its adjudication the presence of third p arties over w hom the court cannot acquire jurisdiction. But the pleader need not state the claim i f :

4(1) at the tim e the action was com m e nced the claim was the subject of another

pending action; or (2) the o p p o s i n g party brought suit upon his claim by a ttachm e n t or other process by which the court did not acquire jurisdiction to rend e r a p e r sonal judgm ent on that claim , a nd the pleader i s not stating any c ounterclaim under this Rule 13; or

. . . . (b) Perm issive C ounterclaim s. A pleading m ay state as a counter claim any claim against an opposing party not a rising out of t he t ransaction or occurrence that is the subject m atter of the opposing party ’s claim

. ¶9. The R osses rely o n H all v. Corbin , 478 So. 2d 2 53 (Miss. 1985), to s upport their
assertion that their counterclaim should not have been dism issed. This Court has previously recognized t he d octrines of ancillary and pendent jurisdic t i o n
. I n Hall, the suprem e court
held:

W e (and every other c ourt in the land) have lo n g h e ld that once a court acquired actual s ubject m atter jurisdiction of an action, other c laim s (whether asserted by the o n e o r m ore of the orig i n a l p a r t i es or by new or intervening parties), a ncillary or pendent to the original claim could also be l itigated in t hat action even though the a ncillary or p end e n t claim standing alone m a y have been bey ond the court’s jurisdiction. Caterpillar Fin. Servs. C

orp. v. Burroughs Diesel I nc. , 125 So. 3d 659, 674 (¶88) (Miss. Ct. App. 2013) (quotation m arks om itted) (quoting Hall , 478 So. 2d at 255). ¶10. This Court has also held that “in f uture sim ilar actions, i t would be pref erable f or such

a d i s p ute as this o ne to be determ ined in one court proceeding.” Id. W e agree with th i s
Court’s previous r

uling; however, this case presents a u nique set of f a cts. The c ircuit court held a hearing to determ ine whether the Rosses’ counterclaim s w ere viable, and the circuit

court held that the claim s could possibly be brought af ter t he issue o f replevin. Further, af ter

5the circuit court dism i ssed the allegations i n their counterclaim w ithout prejudice, except to

the extent asserted a s “legal def enses to the i ssue of r eplevin,” t he Rosses f iled a com

plaint
in the county court alleging f ive of the seven original claim s contained in t he counterclaim against Stewart, Genevieve, and Chess. ¶11. The circuit court held that whatever m a t ters occurred during the replevin action did

not af f ect the R osses’ counterclaim

. Thus, the circuit court concluded that the counterclaim

was not considered a com pulsory counterclaim under Rule 13. W e disagree with the lower
court’s ruling that the c ounterclaim did not f all under Rule 13. The Mississippi Suprem e
Court h as held that “the f

ace of the com

plaint and its w ell pleaded allegations are what courts
look to when deciding whether they have authority to act a t a l l

. . . .” City of D urant v. Humphreys Cty. M

em’l H osp./Extended Care Faci l i t y , 587 So. 2d 244, 250 ( Miss. 1991) (citations om itted); see also Miss. Const. art. 6, § 159(a) & (f ). ¶12. In f

ol l o w i n g precedent, we acknowledge t hat where a c o urt is presented with a
counterclaim , and the def endant raises a def

ense akin to the sam e counterclaim , the circuit court should exercise jurisdiction over the counterclaim

. ¶13. However, while we f ind that the trial judge erred in dism issing the counterclaim , we
f ind the circuit court corrected its error by hearing the f acts and m aking a ruling regarding
the Rosses’ counterclaim addressing the f orm ation of a contract and any assertions related
thereto. The f

ollowing is an excerpt f

rom an exchange during the bench trial:

MR. MILLER: You Honor, I guess I’m not clear. Did t he Court dism iss

the counterclaim ?
THE COURT: I dism issed the c o u n t e r claim s w ithout p rejudice except

6to the extent that they go d i r e c t l y t o a def ense t o the replevin. And in the m ost liberal sense of the situation, I s u p p o s e, Mr. Robison, this p erhaps p urports t o be a def e nse to the replevin, s o I ’ ll allow h im to proceed
som ewhat f

urther into this l ine of questioning. Go ahead, Mr. Miller.

MR. MILLER: Two notes, Your Honor. On the f irst note, as one o f our def e nses we argued breach of contract i n o ur def e nse. So
can I a r g u e m y d ef

enses o r am I excluded also f rom arguing m y

def ense?
THE COURT: No. Mr. Miller, I just ruled f or y ou.
MR. MILLER: I’m

sorry ?
THE COURT: I just ruled in y our f avor.
MR. MILLER: I j u s t w a n t t o ma k e t he Court – m ake s u r e t h e C o u r t

won’t lim it m e –
THE COURT: I m ean, I can’t – I can’t overrule his objection any m ore

than I just did a n d say it g oes – in f act, y our client understood it because she was shaking her head y e s. ¶14. Mr. Miller proceeded to cross-exam ine Stewart, a n d the circuit court heard testim ony regardi n g t h e alleged c ontract between Stewart a nd the Rosses. Stewart testif ied to his
conversation w h e r e h e d e cided not to enter into an agreem ent w ith the Rosses. The
f ollowing is an excerpt of

Stewart’s testim ony

during cross-exam ination:
S o , s o w h e n the I – I t old Mr. Ross, I said, I rather y ou h ave the – buy t h e m otor hom e. I said, do y o u want to buy it. He say s, let m y p ray o ver i t, l et m e talk to m y wif

e. I said, okay

. So, I guess he talked to h er a nd he p ray ed over it. He didn’t call m e back. So, I called him I b e l i e v e i t w a s o n a Friday

. I said, what have y ou decided. He said, we, I wouldn’t m ind having the m otor hom e, he said, I want that m otor hom e in that spot cause m y m other and d addy have it, but I d on’t h ave t he m oney t o f inance it. And so I said, well, m ay be
we could m ake s om e kind of arrangem ent. He said, h ow m u ch y ou want it f

or again? And I said – I told h im , I said, if y ou give m e som e cash right now, I’ll

7sell it to y ou f or $ 5 0,000. He said, we can’t do it. He said, y ou w ould f inance f o r it f o r, I think a

bout t hree to f

ive y ears. I said, well, I can – I c a n l o o k a t that, y ou know what I m ean. So I said – he said, how m uch I g ot to pay if

– if y ou f inance i t

. I s a i d $ 600 a m onth. And then he said, y es, he said, I can handle that. He said, b ut the crossroads. He s aid, I’m going t o charge y ou $300 a m onth just f

o r t he m obile hom e sitt i n g o n the property while I’m renting it. I said, oh, no, I don’t need to talk to y ou. Further, Stewart testif

ied to the f

ollowing: Q: Mr. Stewart, isn’t it c o r r e c t y o u actually c alled the Rosses and explained to them that y ou w e r e of f ering the m obile hom e f

or $600 a m o nth at $42,000? Is that correct?
A: No, sir. ¶15. The f

ollowing is an excerpt of

Maxcine’s testim ony : Q: And w hen did y ou have an opportunity to discuss

. . . the purchase of the m obile hom e with Shellie Stewart?
A: Mr. Stewart called u s around A ugust 8. And we spoke – he called o ur hom e phone. W e have trouble out i n that area with the hom e phone, so it will either cut of

f or y ou don’t get t o speak to the person. So we’ve asked that he called the cell phone.

. . . . A: The v ery f

irst tim e was around April – I’m sorry – August 8

. And t hen August 13 he called again and subm itted the deal that he of f ered us to purchase the hom e in the am ount o f the $42,000. A n d a t t he t im e he said, well, talk it over with y our wif e and see what she thinks about it and how she agrees with it and get back to m e. And we did. Q: And d id y ou tell him that y ou would agree? Did y ou com m unicate the agreem ent to Stewart or did Mr. Ross?
A: Mr. Ross, m y husband, convey ed t he inf o rm ation b ack to Mr. Stewart. He to l d u s t o g e t a f

ew day s – take a f

ew day s af

ter August 13 to see about g etting f

i nanced. W hich we did, and no one is d oing any f inancing on m obile hom es. S o

– especially when t here are private
owners.

8. . . .

A: W e waited approxim ately two weeks. And by t he

– ar ound or approxim ately around August 31, Mr. Stewart called our hom e phone
once again a nd he spoke to m y husband. And he told him at that tim e he could not let us have the d eal because his adviser had a d v i sed him that he would b e losing too m uch m oney
. And s o at that particular tim e he reneged on the deal. ¶16. T h e c i rcuit court f ound the testim ony given by S tewart and the Rosses proved t h a t
there was no m eeting of

the m inds, no binding agreem ent, no contract. ¶17. Further, the s am e evidence the Rosses relied o n i n s upport o f the def ense o f breach
of c o n t ract would have been the sam e evidence to support t he counterclaim

. Accordingly , bef ore there can be a breach, there m ust be a contract. The counterclaim was based on the
Rosses’ assertion that there was a contract

– a claim which the circuit c ourt f ound m eritless.
The court heard t he discrepancy of evidence f rom both sides regarding breach of contract and

any other claim

alleged by

the Rosses. ¶18. The only way to determ ine possession would be to consider whether the Rosses m ay
be e ntitled to possession, because S tewart breached his contract to sell his m obile hom e. The
circuit court agreed with t his assertion. It is clear f rom the record t hat the circui t c o urt
considered whether Stewart and the Rosses contracted a nd whether there was a breach that
f ollowed. In other w ords, if the court believed that there was a c o n t r a c t and a subsequent
breach of contrac t , i t would not have granted the replevin. Absent a j ury , the circuit court judge was the t rier of f

act, and c oncluded that no contract existed between the p arties. The

suprem e court has held that “conf licting testim ony is to be r esolved by the trier of

f act, the judge in a bench trial.” Tabitha Praye r v. Greenwood Leflore H osp. , 183 So. 3d 877, 883

9(¶19) (Miss. 2016) (citation om itted).

¶19. This Court m

ust also note that “it is, of course, a basic p rinciple o f t he l aw of contracts
that a contract is not f

orm ed betwe en the parties absent the essential elem ents of of f er, acceptance, and consideration.” W hiting v. Univ. of

S. Miss. , 62 So. 3d 907, 915 (¶14) (Miss. 2011) (citations om i tted). T h eref ore, even if the Rosses and Stewart entered into s om e f orm
of an agreem ent regarding sale of the m obile hom e, t here was no consideration paid, because the Rosses never paid rent to Stewart. ¶20. The dissents writes, “a claim f or replevin asks f

or im m ediate possession of personal
property .” ( Citing Miss. Code Ann. §§ 11- 37-101 & 11-37-141 (Rev. 2 012)). T he right of
the possession r e quires the court t o consider ownership of the personal property

. Likewise,

a replevin action can be decided on l y a f ter the court determ ines who o wns t he property , whether any liens are due on the property , and whether any other person(s) have a legal right

to claim as to the property

. W e agree. Accordingly , we f ind t hat the trial court c oncluded that Stewart was the legal owner of the m obile hom e
. ¶21. Although the t r i al judge initially erred by declining j urisdiction over the Rosses’
counterclaim , we f

ind that the trial ju d g e l a t e r exercised j urisdiction over the Rosses’

count e r c l a i m by allowing testim o ny regarding t he existence o f a contract and an alleged
breach. Accordingly , i n f uture and sim ilar actions, we encourage trial courts to hear viable
counterclaim s accom

panied with a replevin action to ensure judicial econom y
. ¶22. THE JUDGMENT O F THE CIRCUIT COUR T O F PIKE COUNTY IS AFFIRMED. ALL COSTS OF TH I S A P P E AL ARE ASSESSED TO THE APPELLANTS.

1 0LEE, C.J., I RVING, P.J., A N D C A R L TON, J., C ONCUR. GREENLEE, J.,

CONCURS IN PART AND IN THE RESULT WITHOU T SEPARATE WRITTEN OPINION. FAIR, J., CON CURS IN PART AND D ISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINI O N
. G R I FFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, ISHEE, FAIR AND WILSON, JJ. GRIFFIS, P.J., DISSENTING: ¶23. I respectf

ully disagree with the m ajority and dissent. ¶24. On October 26, 2015, as the trial began, t he circuit court dism is s e d t he Rosses’
counterclaim s without prejudice. The trial judge ruled:
All right, well, I h ave a r uling on t he c ounte r c l a i m s and they are hereby dism i ssed without prejudice. Clearly , the case law states as in Finance A merica v. Durbin at 370, 1356 [ sic], dam ages m

ust be s ought af

ter judgm ent on the issue o f possession and not by way of counterclaim

. C learly , the law of replevin sim ply does not allow - - now, the counterclaim s are dism issed, except as to the extent that they a re legal def enses to t he issue of

replevin. But as f

ar as the claim s on their own which go f orward i n opposition to the replevin, they are dism issed without prejudice. ¶25. The m ajority ref

ers to D urbin , but does not acknowledge that it was decided bef ore
the R ules of Civil Procedure governed. I adm it m y c onf usion with t he m ajority ’s ruling that
it was legally

proper f or the Rosses’ counterclaim s to be dism issed but to allow t he Rosses

to present their d ef

ense of breach of contract. T he m a jority does not rely upon Durbin and
does not attem

pt to argue how the circuit court was correct to apply it here. ¶26. Instead, the m a

jority ref ers to a s uprem e court r u l i n g t hat occurred b ef ore the Mississippi Rules of Civil Procedure were adopted. See Gen. Motors Acceptance Corp. v. Fairley , 359 S o. 2d 1386 (Miss. 1978). The m ajority cites the f o llowing f

rom the opinion, “[ a]f ter a caref ul consideration of the o f

f ice of replevin, we have r eached the conclusion that

1 1the Laws of 1975, ch. 508, do not perm it a d ef endant to f

ile a counterclaim or recoupm ent
except f or the specif

ic statutory dam ages.” Maj. Op. at (¶7) (citing Fairley , 359 So. 2 d at 1388). It should be noted that, in Fairley , the next two sentences read:
A replevin action is a possessory action f or specif ic p roperty a nd n ot a suit f or m onetary dam ages. No provision is m ade under the above law f or a j udgm ent of m oney , except f

or the wrongf

ul t ak i n g , detention, value of the specif ic property , or dam ages f

or wrongf ul suing out of

the writ. Fairley , 359 S o. 2d at 1388

. This is no longer true. Under the Mississ i p p i R u l e s of Civil Procedure, a def

endant m ay assert either a com p ulsory or a permi s s i v e c o unterclaim

. 4 It certainly a

ppears to m e that the Rosses’ counterclaim s would be com pulsory , because they “arise[ ] out of the transaction or occurrence that i s the subject m atter of the opposing party ’s
claim .” M.R.C.P. 13(a). ¶27. Neither D urbin nor Fairley is governing a uthority here

. Both of these cases were
decided bef

ore t he M ississippi Rules of Civil Procedure were adopted. B y order dated May 26, 1981, the Mississippi Suprem e Court adopted the M ississippi Rules of Civil Procedure (ef f ective January

1, 1982). Mississippi Rule of Civil Procedure 1 provides:

4 M ississip p i R u le o f

C iv il P ro ced u re 1 3 p ro v id es: (a) C o m p u lso ry C o u n ter-claim s. A p lead in g s h all s tate as a co u n ter-claim an y c l a i m w h ich at th e tim e o f serv in g t h e p lead in g th e p lead e r h as a g ain st a n y o p p o sin g p arty if i t arises o u t o f th e t ran sact i o n o r o ccu rren c e t h at is th e su b j ect m atter o f th e o p p o sin g p arty ’s claim an d d o es n o t req u ire f o r its ad j u d icatio n th e p resen ce o f th ird p arties o v er w h o m th e co u rt c a n n o t acq u ire j u risd ictio n
. . . . (b ) P erm issiv e C o u n ter-C laim s. A p lead in g m ay state a s a co u n ter-claim an y claim ag ain st an o p p o sin g p a rty n o t arisin g o u t o f th e tr a n s a c t i o n o r o ccu rren ce th a t is th e su b j ect m atter o f

th e o p p o sin g p a r

ty ’s claim

. 1 2These rules govern proc e d u r e i n t h e c ircuit courts

. . . in all suits o f a civil

nature , w hether cognizable as cases at law or i n equity , subject to c ertain lim itations e num erated in Rule 81; however, even those enum erated proceedings are still s ubject to these rules where no statute applicable to the p r o c e e d i n gs provides otherwise or sets f orth procedures i ncon s i s t e n t w i t h t h e s e rules. These r u les s hall be construed to secure t he just, speedy, a nd inexpensive determination of every action

. (Em phasis added). First, Rule 8 1 does n o t exclude replevin a ctions f r om the Mississippi
Rules of C ivil Procedure. Seco nd, a claim f or replevin asks f

or im m ediate possession of personal property

. M i ss. Code Ann. §§ 11-37-101 & 11-37-141 (Rev. 2012). It requires the

court to consider the ownership of the personal property

. The Rosses’ c o u n t erclaim s challenged w hether they had a ny r ights t o the property

. There is n o need f or a second action when, under Rule 1, we a re instructed to construe the rule s “ t o s ecure the just, speedy and inexpensive determ ination of e very action.” It only m akes sense that all s uch claim s should be brought in one action under the Mississippi Rules of Civil Procedure. ¶28. The m ajority cites Cater p i l l a r F i n a n c ial Services Corp. v. Burroughs Diesel, Inc ., 125
So. 3d 659, 659 (¶1) (Miss. Ct. App. 2013). In t hat case, there were two lawsuits between
the sam e two creditors f

or possession and the right to sell a Caterpillar excavator. This Court acknowledged that:

To this point, the procedural nature o f t hese cases seem s to be contrary to the purpose of

the replevin statute and the Mississippi Rules of Civil Procedure. The claim s h ave been litig ated separately , bef o re three dif

f erent courts. The replevin claim i s o n appeal f rom a f inal judgm e nt, and the m echanic’s l ien claim is an appeal of a sum m ary judgme n t

. T hese cases have been consolidated bef

ore this Court.

I d

. at 665 (¶43) (f

ootnotes om itted). W e recognized t hat two parties claim ed the rig h t t o
possess the personal property

. Cat Fin a n c i a l ’ s claim was through a replevin action; and

1 3Burroughs’s c laim was through a m echanic’s l ien. T his Court f o und reversible error in the
dif f erent decisions. I nterestingly , three y ears ago, t his Court instructed that “[ i] n future
similar actions, it would be preferable for such a dispute as this one to be determined in one

court proceeding .” Id. at 6 74 ( ¶90). The m ajority acknowledges and agrees with this language, but say s the f

a cts here are “unique.” They are not. ¶29. The m ajority also cites Hall v. Corbin , 478 So. 2d 253, 254 (Miss. 1 985). 5 There, the

suprem e court f

r am ed the issue bef

ore the court as:
This case presents issues involving the s c ope of j u r i s d i c t ion a nd available
rem edies in circuit court ancillary to a replevin action now that we are under the M i s s i s s i ppi Rules of Civil Procedure. In the e nd we hold that in such an action, a claim by another pa r t y asserting a non-possessory interest in the property m ay b e asserted within the ancillary j urisdiction of the circuit court, so long as there is a com m on nucleus of operative f act between such claim and the original com

plaint in replevin. Such party m ay interve n e i n the circuit court replevin action, even though his claim is of equitable origins.
The court then ruled:

W e (and every other c ourt in t h e l a nd) have long held that once a court acquired actual subject m atter jurisdiction of a n action, other claim s (whether asserted by the o n e o r m ore of the original p a r t i e s or by new or intervening parties), a ncillary or pendent to the original claim could also be litigated in t hat action even though the a ncillary or p endent c laim standing a l o n e m a y have been bey ond t he court’s jurisdiction. To f all within pendent or ancillary jurisdiction, the int r u d ing claim m ust arise out of the sam e transaction or occurrence as the principal claim or, as others put it, out of a com m on nucleus of operative f

a ct. The p rincipal context in which we ha v e r e c o g n ized these notions is that where “legal claim s ” have been asserted i n chancery court, pendent to the principal equity claim

. There is no reason or principle why the converse should not also be true: where a circuit court has jurisdiction o f an action at law, it may hear and adjudicate in that action all claims, including those with an equitable sme l l, arising o ut of the same t ransaction a nd

5 We co n s id ered th e sam e lan g u ag e f ro m H a ll in o u r d iscu ssio n o f a n cillary an d p en d en t j u risd ictio n in C a terp illa r , 1 2 5 S o . 3 d at 6 5 4 (¶¶8 8

- 8 9 )

.

1 4o ccurrence a s the principal claim

. Indeed, t he c onverse would appear e v e n

m ore appropriate in that our circuit courts a re courts of g eneral jurisd i c t ion, Miss. Const. art. 6 § 156 ( 1890), while our c hancery courts a r e r egarded as courts of special or lim ited jurisdiction. (Internal citations om itted) (em phasis added). Thus, i n H all , the court allowed a t hird party

to intervene and join claim s u nder Mississippi Rules of Civil Procedure 18 and 24. The court
reasoned:

In this view we hold that the c laim of intervenor

. . . as originally f i led a n d as revived was within the jurisdiction o f the c i rcuit court ancillary to the o riginal action in replevin. T his holding does not depend u pon any enlargem e n t of jurisdiction e f

f ected by t he MRCP, f

or those rules neither p retend to n or have power to enlarge jurisdiction. R ule 82(a), MRCP. T

hese rules at most sweep away p rocedural barriers to t he a ssertion of claims o t h e r w i se w i thin the court’s jurisdiction.
Hall , 478 So. 2d at 255-56 (em phasis added). The court concluded:
Once intervention i

s p ermitted under the rules, it f ollows that intervenors may join as m any claims as they have against the opposing p arty

. Rule 18, MRCP. By virtue of the f

am iliar concepts of ancillary o r p endent jurisdiction, it does not m atter th a t som e of t he claim s sound in equity

. W e have r ecognized on m any occasions that under the rule, circuit courts m ay be called upon to grant equitable relief w here s uch claims a r e a n c illary t o the civil actions in law in order “to secure th e just, speedy and inexpensive determ ination o f e very action.” Rule 1, MRCP.
Hall , 478 So. 2d at 257 (internal citation om itted) (em phasis added). ¶30. This cas e w as c om m enced under the Mississippi Rules of C ivil P rocedure. All

necessary parties were b e f o r e t he court. The possession o f t he m obile hom e was at issue through a claim f

or replevin. The R osses sought to adjudicate their c ounterclaim s f or breach
of contract, am ong other claim s. The s uprem e court determ ined in Hall that a third party
could i n t e r v e n e a nd join a claim in a replevin action; thus, I see no l egal authority f or the

1 5circuit court or the m a jority to decline ju r i s d i c t i o n o ver both the replevin claim and all
counterclaim s asserted. ¶31. The m ajority cites no legal authority f or i ts decision to af

f irm the trial judge’s decision

to d ecline jurisdiction. T he m ajority af f irm s t he t rial court because it apparently b elieves that
the judge actually considered t he Rosses’ counterclaim f o r breach of contract 6 and decided
that there was not a contract. At the end of the trial, the judge said: Frankly , this is not a d if

f icult c ase, l adies and gentlem en. I m ean
. . . he’s got a title. He testif

ied that he paid f

or it. There m a y have been som e talk about
a contract. A n d , a g a i n , m ay be there is a contract and m ay be y ou have an action f or breach o f contract

. . . . I’m n ot say i ng that y ou do or y ou don’t. I t’s just a separate action that has to be m aintained.
The trial judge’s own words clearly ref ute the n o tion that the Rosses’ counterclaim s were actually c o nsidered by

the trial judge and the dism issal was nothing but harm less error. ¶32. I f ind it was r eversible error as a m atter of law f o r t h e circuit court to decline jurisdiction over the counterclaim s. I w ould reverse and r em and this case f o r f urther proceedings. I theref

ore respectf

ully dissent. BARNES, ISHEE, FAIR AND WILSON, JJ., JOIN THIS OPINION.

6 T h e m aj o rity d o e s n o t d i scu ss th e R o sses’ rig h t t o a j u ry trial o n t h e ir b reach

- o f

co n tract claim an d d o es n o t d iscu ss th e f act th at th e t rial co u rt d id n o t c o n s i d e r o r a l l o w e v id en ce o n th e R o sses’ o th er c laim s f o r b reach o f f

id u ciary d u ties, b reach o f th e im p l ied
co v en an t o f g o o d f

a ith an d f

air d ealin g , f

rau d u len t m isrep resen tatio n , n eg lig en t m isrep resen tatio n , u n co n scio n ab i lity , em o tio n al d i stress, o r co n s p iracy

. 1 6