IN THE SUPREME COURT OF MISSISSIPPI

NO. 1999-CA-01753-SCT

GREENLINE EQUIPMENT COMPANY, INC. AND PERMA SEPTIC TANK COMPANY,

INC.

v.

COVINGTON COUNTY BANK, A MISSISSIPPI BANKING CORPORATION, JACK H.

HAYES, JR. AND GLEN EAVENSON d/b/a COVINGTON STEEL COMPANY

DATE OF JUDGMENT: 9/23/1999

TRIAL JUDGE: HON. ROBERT G. EVANS

COURT FROM WHICH

APPEALED:

COVINGTON COUNTY CIRCUIT COURT

ATTORNEYS FOR

APPELLANTS:

BRETT WOODS ROBINSON

NORMAN GENE HORTMAN, JR.

S. ROBERT HAMMOND, JR.

ATTORNEYS FOR

APPELLEES:

DAVID SHOEMAKE

FORREST W. STRINGFELLOW

GREGORY MOREAU JOHNSTON

GEORGE THOMAS SULLIVAN

NATURE OF THE CASE: CIVIL - CONTRACT

DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART

- 05/30/2002

MOTION FOR REHEARING

FILED:

6/12/2002

MANDATE ISSUED:

BEFORE McRAE, P.J., DIAZ AND CARLSON, JJ.
CARLSON, JUSTICE, FOR THE COURT:

¶1. We have before us today a case which the trial court characterized as containing "the second-most

convoluted set of facts ever known to Mississippi jurisprudence." Notwithstanding being confronted with a

difficult case, the trial judge, in his original Findings of Fact and Conclusions of Law, stated that "[w]hile

tempted to simply cut this Gordian knot with the judicial sword and make everything go away, this [trial

court] has attempted to untie the same." Although the trial court meticulously considered the record before it

and eventually entered the original and then amended findings of fact and conclusions of law, and the

original and then amended final judgment in this case, this Court is constrained, as a matter of law, to hold

that the trial court did commit error in at least one instance. This finding is made by the Court,

acknowledging that it has the advantage of cool and calm reflection based admittedly on a cold record, and

affording great deference to the learned trial judge who was "there on the scene", who "smelled the smoke

of battle", and who "sensed the interpersonal dynamics between the lawyers and the witnesses and himself."

See Culbreath v. Johnson, 427 So.2d 705, 708 (Miss. 1983).

STATEMENT OF THE CASE

¶2. This appeal is taken from a final judgment entered in the Circuit Court of Covington County,

Mississippi, one of several trial courts which dealt with the parties on the subject matter of this litigation. The

life of this protracted civil action commenced on May 26, 1989, when Covington County Bank (Bank) filed

its complaint against Glen Eavenson (Eavenson), doing business as Covington Steel Company (Covington

Steel), Greenline Equipment Company, Inc. (Greenline), Perma Septic Tank Company, Inc. (Perma Septic)

, Louis W. Harper, Sr., and Western Surety Company. Sheriff Harper and his bonding company, Western

Surety Company, were later dismissed as parties. The focus of this case is a Model 690B John Deere

excavator (backhoe), in which the Bank claimed a security interest as a result of Eavenson's execution of a

promissory note and related UCC-1 financial statements. In its suit, the Bank in essence claimed that certain

parties had wrongly converted the excavator to the Bank's detriment and caused the Bank to suffer

monetary damages in excess of $60,000. From May 26, 1989, until May 5, 1993 (a period of almost four

years), the various parties filed pleadings, which included answers and amended answers, answers and

defenses, cross-claims, motions and revised motions, and third-party complaints. Along the way, in addition

to the Bank's claims, the following claims also surfaced: Eavenson's cross-complaint against Greenline and

Perma Septic; Perma Septic's counterclaim against the Bank and Greenline; and, Greenline's third-party

complaint against its lawyer.

¶3. After a five-day non-jury trial between December 1, 1993, and February 2, 1994, the trial court took

this case under advisement for subsequent ruling. In the end, the circuit court ruled, inter alia, that both

Greenline and Perma Septic had wrongfully converted the subject excavator to the detriment of the Bank,

thereby causing both Greenline and Perma Septic to be jointly and severally liable to the Bank for monetary

damages in the amount of $35,070.72; that Perma Septic was not entitled to indemnification on its

counterclaim against Greenline, nor entitled to relief on its counter- claim against the Bank; that Eavenson

could not maintain his claims against Greenline and Perma Septic; and, that the applicable statute of

limitations had run, thereby causing Greenline to take nothing on its third-party complaint against its lawyer

for legal malpractice. The trial court's findings of fact and conclusions of law were filed on September 8,

1998, and its final corrected findings of fact and conclusions of law were filed on November 24, 1998. The

trial court's final judgment was filed on September 10, 1999, and its amended final judgment was filed on
September 28, 1999. The Order Denying Motion to Set Aside Final Judgment was filed on October 15,

1999. Based on these actions of the trial court, Greenline and Perma Septic have appealed to this Court for

relief. Eavenson (Covington Steel) has also raised issues on this appeal, claiming that the trial court

improperly dismissed his claims against Greenline and Perma Septic.

FACTS

¶4. On January 2, 1985, Glen Eavenson, doing business as Covington Steel Company, borrowed $30,

037.50 from the Covington County Bank. Eavenson used a Model 690B John Deere excavator (backhoe)

as collateral for this loan. The pertinent documents reveal that this loan was actually a renewal of a previous

loan made in 1984, and was not for the purchase of the excavator. Eavenson signed a promissory note,

security agreement, disclosure statement, and a UCC-1 statement in favor of the Bank. The Bank, in turn,

filed the UCC-1 in the office of the Chancery Clerk of Covington County, Mississippi on January 11, 1985.

The note on the loan became due and payable on January 2, 1986.

¶5. On June 18, 1985, Eavenson bought a used engine from Greenline, and Eavenson's employees installed

the engine in the excavator. While working in Lowndes County, Eavenson and a couple of his employees

noticed a "fuel knock" and, therefore, on October 21, 1985, Eavenson sent the excavator to the Greenline

shop in Columbus for repairs. Disputes arose as to whether or not certain repair work had been authorized.

Greenline billed Covington Steel (Eavenson) $8,784.33 for the total cost of the repairs; however,

Covington Steel failed to remit any payment on this bill.

¶6. On January 20, 1986, Greenline's attorney, Jack H. Hayes, Jr. (Hayes), sent a letter to Covington Steel

stating that because it had failed to pay for the repairs, Greenline had a mechanic's lien on the excavator and

would commence legal action to foreclose on the lien if payment still was not forthcoming. Eventually

Hayes, in representing Greenline, filed a mechanic's lien suit in Covington County Circuit Court on March

12, 1986, but later dismissed that suit. Another mechanic's lien suit was filed by Hayes, on behalf of

Greenline, in the Circuit Court of Lowndes County on March 28, 1986. In this suit, Greenline requested

that a monetary judgment be awarded against Covington Steel (Eavenson) for the amount of the mechanic's

bill ($8,802.77), as well as attorney's fees and costs, and that the excavator, which was still in the

possession of Greenline, be sold by order of the court to generate the money to satisfy the judgment. In its

complaint, Greenline alleged that the defendant, Covington Steel, was a Mississippi corporation which could

be served with process through its agent, Eavenson. As it turned out, Covington Steel was not a Mississippi

corporation and the properly named defendant should have been Eavenson, doing business as Covington

Steel.

¶7. On May 6, 1986, Hayes filed a request for entry of default against Covington Steel and received a

clerk's default. On May 13, 1986, the Circuit Court of Lowndes County entered a default judgment in

favor of Greenline and against Covington Steel in the amount of $8,802.77 and all costs, and further

ordered, based on the mechanic's lien, that the Sheriff of Lowndes County sell the excavator at public

auction to satisfy Greenline's monetary judgment against Covington Steel. The sheriff conducted a public

auction on May 30, 1986, and Perma Septic purchased the excavator for $9,500.00. On June 21, 1986,

Hayes mailed Eavenson a check in the amount of $352.72, representing the excess over and above the

amount of the mechanic's lien and related costs.

¶8. Two days later, on June 23, 1986, Eavenson notified Covington County Bank of the Sheriff's sale of the

excavator. On July 9, 1986, the Bank notified Hayes of its perfected security interest in the excavator, and
then in August, 1986, the Bank likewise informed Perma Septic of its lien on the excavator. On September

17, 1986, Eavenson (Covington Steel) filed a motion to set aside Greenline's default judgment, alleging as

grounds, lack of process or notice and insufficiency of process. On December 11, 1986, the Bank filed a

replevin action against Perma Septic in the Lowndes County Circuit Court; however, Perma Septic was not

served with process in the replevin action until December 18, 1986, two (2) days after Perma Septic had

sold the excavator to C & C Equipment Company (C & C) for the sum of $25,000.

¶9. On January 5, 1987, C & C sold the excavator to the City of McComb for the sum of $34,000. On

March 31, 1987, a hearing was held in Lowndes County Circuit Court on Covington Steel's motion to set

aside Greenline's default judgment, and at the conclusion of the hearing, that court ruled that Greenline's

default judgment (which had led to the Sheriff's sale of the excavator) should be set aside. This ruling by the

Lowndes County Circuit Court was evidenced by its order dated April 3, 1987. On April 10, 1987, the

Covington County Bank filed a replevin action against the City of McComb in the Circuit Court of Pike

County. In August of 1987, Eavenson filed for Chapter 7 bankruptcy in the United States Bankruptcy

Court for the Southern District of Mississippi. In the bankruptcy documents filed in court, Eavenson listed

Greenline's claim as a disputed claim and the Bank's claim as a secured claim. An agreed judgment was

entered in the bankruptcy proceeding on January 15, 1988, and this judgment lifted the stay on the

excavator and allowed the Bank to recover the excavator. On May 23, 1988, the Lowndes County Circuit

Court dismissed the mechanic's lien suit on the clerk's motion, for want of prosecution. On September 9,

1988, the Bankruptcy Court discharged Eavenson from his debt to the Bank. On May 26, 1989, in the

Circuit Court of Covington County, the Bank instituted the suit which is the basis of this appeal. On July 21,

1989, the Pike County Circuit Court ordered the return of the excavator to the Bank in the replevin action.

Finally, on October 24, 1989, the Bank sold the subject excavator at a public sale to Freddy Rogers

Construction for the sum of $14,500.

DISCUSSION

¶10. Due to the number of parties, as well as the number of issues presented in this appeal, the issues have

been arranged categorically by the parties raising them.

I. GREENLINE EQUIPMENT COMPANY, INC.

A. WHETHER THE CIRCUIT COURT OF COVINGTON COUNTY ERRED WHEN IT

HELD THAT GREENLINE IS LIABLE FOR CONVERSION.

¶11. Greenline argues that the circuit court erred when it found that Greenline converted the property of

Covington County Bank when it sold the excavator in the execution sale. Specifically, Greenline asserts that

(1) any knowledge it possessed of the Bank's lien did not satisfy the statutory requirements of Miss. Code

Ann. § 75-9-401, and (2) that Greenline could not have converted the Bank's property because at the time

the excavator was sold at the sheriff's sale, the excavator still belonged to Glenn Eavenson d/b/a Covington

Steel Company. We agree.

¶12. A "conversion requires an intent to exercise dominion or control over goods which is inconsistent with

the true owner's rights." Walker v. Brown, 501 So.2d 358, 361 (Miss. 1987). The trial judge relied

heavily on this Court's decision in Miss. Motor Fin., Inc. v. Thomas, 246 Miss. 14, 149 So.2d 20

(1963). In that case, the appellee filed an action to enforce a mechanic's lien on an automobile he had

repaired. The justice of the peace entered an order for an execution sale, and thereafter the appellee
purchased the car at the execution sale. Thus, unlike the case presently before us, the mechanic never

relinquished control of the automobile he repaired. Mississippi Motor Finance, Inc., in turn, filed an action

for conversion alleging that the sale was void because appellee failed to name it as a party. The chancery

court ordered that the automobile be resold with the mechanic's lien to have priority over the finance

company in the distribution of the proceeds, and the finance company appealed to this Court.

¶13. This Court agreed that the finance company was a necessary party, and consequently, that its rights

were not affected by a proceeding to which it had not been made a party. Id. at 23. However, we also said

that "this does not mean that the appellee, who purchased the automobile at the sale made under the

judgment of the justice of the peace court, became liable in an action for conversion for the unpaid balance

of the purchase price of the automobile evidenced by the appellant's conditional sales contract". Id.

(emphasis added). In Thomas we went on to state:

There is no conversion until the title of the lawful owner is made known and resisted or the purchaser

exercises dominion over the property by use, sale, or otherwise.

***

. . .To make out a conversion, there must be proof of a wrongful possession, or the exercise of a

dominion in exclusion or defiance of the owner's right, or of an unauthorized and injurious use, or of a

wrongful detention after demand. (Internal citations omitted.) Action of tort. . .cannot be maintained

without proof that the defendant either did some positive wrongful act with the intention to appropriate

the property to himself, or to deprive the rightful owner of it, or destroyed the property. In Lee Tung

v. Burkhart, 59 Or. 194, 195, 116 P. 1066, the Court held that in order to maintain an action for

conversion, there must have been, on the part of the defendant, some unlawful assumption of

dominion over the personal property involved, in defiance or exclusion of the plaintiff's rights, or else a

withholding of the possession under a claim of right or title inconsistent with that of plaintiff.

149 So.2d at 23. We also noted that "there is no evidence in the record of any lack of good faith on the

part of the appellee in the prosecution of his claim in the justice of the peace court for the enforcement of his

lien, or in his belief, though mistaken, that he owned the property as the result of his purchase of the

automobile at the execution sale." Id. at 24.

¶14. Turning to the case, sub judice, both Greenline and the Bank agree that Greenline was notified on July

9, 1986, of the Bank's claimed lien. The default judgment was taken on May 13, 1986. The excavator was

sold on May 30, 1986. Thus, according to both Greenline's and the Bank's time lines, Greenline was

notified of the lien after the sale and after possession of the excavator had passed from Greenline to Perma

Septic. Therefore, the Bank concludes that Greenline not only converted the excavator when it sold it at the

execution sale, but that Greenline "further compounded that conversion by failing to restore possession of

the property after having been notified of the lien." The Bank cites several cases to support this claim.

However, in each of these cases the defendants were made aware of another's claim to the subject

property while the defendants were in control or in possession of such property. Conversely, at the time

Greenline received the notice of the Bank's lien the excavator was already in the possession of Perma

Septic. Additionally, at the time of the sheriff's sale, the excavator was still the property of Glen Eavenson

d/b/a Covington Steel Co., and not the property of the Bank, which at that point, could only claim a

security interest or right to ownership, as opposed to actual ownership or title. Accordingly, the Court is

constrained, as a matter of law, to find that it was error for the trial judge to hold Greenline liable for
conversion.

B. WHETHER THE CIRCUIT COURT ERRED IN AWARDING DAMAGES TO

COVINGTON COUNTY BANK.

¶15. As discussed in the immediately preceding section, the trial court erred in holding Greenline liable for

conversion; therefore, the award of damages against Greenline and in favor of the Bank on its conversion

claim must also be reversed.

C. WHETHER THE CIRCUIT COURT OF COVINGTON COUNTY ERRED WHEN IT

HELD THAT THE STATUTE OF LIMITATIONS HAD EXPIRED ON GREENLINE

EQUIPMENT COMPANY, INC.'S LEGAL MALPRACTICE CLAIM AGAINST ITS

ATTORNEY.

1.

¶16. The application of a statute of limitations is a question of law to which a de novo standard applies.

Sarris v. Smith, 782 So. 2d 721, 723 (Miss. 2001) (citing ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45

(Miss. 1999).

2.

¶17. "[T]he statute of limitations in a legal malpractice action properly begins to run on the date the client

learns or through the exercise of reasonable diligence should learn of the negligence of his lawyer." Smith v.

Sneed, 638 So.2d 1252, 1253 (Miss. 1994). We firmly believe that inasmuch as the Court has reversed

the judgment against Greenline, there is no need to discuss the statute of limitations issue on Greenline's

legal malpractice claim against its attorney, since the conversion claim against Greenline is what prompted

Greenline to file its legal malpractice claim against its attorney by way of a third-party complaint. But suffice

it to state that based on the record before the trial court, that court's findings that the statute of limitations

commenced running at least by December 16, 1986, and that Greenline's malpractice claim against its

attorney was barred by the then-applicable six-year statute of limitations are amply supported by the

record. Accordingly, the trial court's finding in that regard is affirmed.

D. WHETHER THE CIRCUIT COURT OF COVINGTON COUNTY ERRED WHEN IT

HELD THAT THE STATUTE OF LIMITATIONS HAD EXPIRED ON GREENLINE

EQUIPMENT COMPANY, INC.'S INDEMNITY CLAIM AGAINST ITS ATTORNEY.

¶18. Greenline next asserts that the trial judge erred in finding that its claim for indemnity against its attorney

was barred by the statute of limitations. Again, based on our previous finding on the conversion claim

against Greenline, we find this issue to be without merit. Upon a review of the record, which includes the

original and amended findings of fact and conclusions of law, and the original and amended final judgments,

we find that because Greenline's third-party complaint was based entirely on the alleged legal malpractice of

its attorney, it was not necessary for the trial court to specifically address the indemnity issue raised by

Greenline. Any right for monetary recovery that Greenline possessed arose out of its attorney's liability for

alleged malpractice. The final amended order of the trial court clearly dismissed the third-party complaint

with prejudice. Because we are reversing and rendering the judgment of the trial court, there is no loss by

Greenline, and thus, nothing for which to be indemnified.
II. PERMA SEPTIC TANK COMPANY, INC.

A. WHETHER PERMA SEPTIC WAS GUILTY OF CONVERSION BECAUSE ITS

POSSESSION OF THE SUBJECT PROPERTY AT ALL TIMES WAS PURSUANT TO

AN ORDER OF THE CIRCUIT COURT OF LOWNDES COUNTY, MISSISSIPPI.

¶19. Pursuant to M.R.A.P. 28(i), Perma Septic, in its brief, adopted certain portions of Greenline's brief.

¶20. Perma Septic argues that the circuit court erred by holding it liable for conversion. Specifically, Perma

Septic argues that it was an innocent purchaser, and in so doing, Perma Septic draws our attention to the

following passages from 30 Am. Jur. 2D, Executions and Enforcement of Judgments:

§ 586 - Generally.

The purchaser at an execution sale is generally entitled to be returned to status quo, so far as possible,

where an execution sale is set aside because of an irregularity in or invalidity of the proceedings....

***

§ 588 - Obligation of execution debtor.

To the extent that the execution purchaser is entitled to reimbursement, the purchaser is generally held

entitled to be subrogated to the execution creditor's rights....

***

§ 590 - Extent of reimbursement.

When an execution sale is null and void, resulting in the execution purchaser of the realty obtaining no

title to the property, the execution purchaser is entitled in an amount equal to all sums advanced to the

sheriff as a result of the null and void sale....

***

§ 489 - Expenditures by purchaser.

The right of an execution purchaser, under proper circumstances, to restitution or reimbursement, is

generally held to extend not only to payments of the purchase price, but also to expenditures for the

discharge of an encumbrance against the property, such as the lien of a prior judgment or execution,

as well as for taxes and assessments....

Accordingly, Perma Septic asserts that it is entitled to be placed in status quo. Perma Septic claims that it is

entitled to $15,276.76 from Greenline which represents the purchase price and expenses. Perma Septic

further asserts that the Bank is indebted to it in the amount of Perma Septic's purchase price and the

improvements to the property.

1.

¶21. We first address whether Perma Septic was liable to the Bank for conversion of the excavator. Perma

Septic argues that it is shielded from liability because the circuit court only set aside the default judgment and
never set aside the sheriff's sale. It argues that it had the right to treat the property as its own until it was

tendered its purchase price and reasonable repairs. Essentially, Perma Septic asserts that it was a bona fide

purchaser at the sheriff's sale, believed it acquired a valid title at the sale, and had no knowledge of an

alleged infirmity of the title until after the purchase price was paid and its improvements had already been

made to the excavator. Further, Perma Septic claims that it had no actual knowledge of an infirmity of the

title until the order setting aside the default judgment was made. At the time that order was entered, Perma

Septic no longer had possession of the excavator.

¶22. Whether Perma Septic was a bona fide purchaser at the sheriff's sale is not relevant to this issue.

A claim for conversion may be maintained where the defendant exercises dominion or control over

property in a manner inconsistent with the Plaintiffs rights in the property. See. LaBarr v. Gold, 520

So.2d 1327, 1330 (Miss. 1987); Masonite Corp. v. Williamson, 404 So.2d 565, 567 (Miss.

1981). Where one acquires possession of the property in a lawful manner, as did defendant in

the present case, his refusal to relinquish possession or control over the property after a

demand by Plaintiff gives rise to the action.

Nat'l Benefit Adm'rs, Inc. v. Miss. Methodist Hosp. & Rehab. Ctr., Inc., 748 F. Supp. 459, 466

(S.D. Miss. 1990) (emphasis added). As the Bank further notes, the Fifth Circuit Court of Appeals has

recognized a similar rule:

. . . Although the mere purchase of personal property in good faith from a person who has no right to

sell it is not a conversion, a conversion nevertheless occurs when the title of the lawful owner is

made known and resisted or the purchaser exercises dominion over the property by use, sale,

or possession.

Textile Supplies, Inc. v. Garrett, 687 F.2d 123, 128 (5th Cir. 1982) (emphasis added).

¶23. The Bank correctly states that David Ashmore of Perma Septic testified that he knew of the Bank's

lien in August of 1986 while the excavator was in Perma Septic's possession. Perma Septic's attorney was

furnished with a copy of the motion to set aside the default judgment filed by Eavenson by a letter dated

September 18, 1986 from Hayes, Greenline's attorney. The Bank, through its attorney in Columbus, filed a

complaint in replevin against Perma Septic on December 11, 1986, while the excavator was still in the

possession of Perma Septic. The testimony offered establishes that Perma Septic had knowledge of the

claims of both Eavenson and the Bank during the time that Perma Septic had possession of the excavator.

¶24. The Bank additionally notes that Perma Septic's Ray Gore testified that he intentionally refused to

restore possession of the excavator to Eavenson, the Bank, or the court. Perma Septic's David Ashmore

testified that when he negotiated the sale of the excavator to C & C, he advised C & C and even placed a

notation on the bill of sale that in the event possession of the excavator was later ordered to be either in the

Bank or Eavenson, Perma Septic would stand behind the title. Accordingly, Perma Septic's assignment of

error is without merit.

2.

¶25. We next address whether Perma Septic is entitled to indemnity from Greenline and hold that, on the

facts of this particular case, it is not.
¶26. Greenline argues, and we agree, that "[u]nder the common law, a wrongdoer is not entitled to compel

contribution from a joint tortfeasor. This is in accord with the doctrine that if tortfeasors are in pari delicto,

no indemnity is due to one held separately liable." Sneed v. Ford Motor Co., 735 So.2d 306, 308 (Miss.

1999). As discussed, Perma Septic is liable for conversion, and consistent with our holding in Sneed,

Perma Septic is separately liable, and therefore, not entitled to indemnity from Greenline. Accordingly, this

assignment of error is without merit.

3.

¶27. We next address Perma Septic's argument that it is entitled to a judgment or offset against the Bank

for its purchase price and repairs. Perma Septic asserts that it is undisputed that it invested a purchase price

of $9,500.00 and repairs of $5,776.76, for a total of $15,276.76. Perma Septic further states that through

advertising and sale efforts, it was able to conclude a sale of the backhoe to C & C for the sum of $25,

000.00, thereby obtaining a profit of $9,723.24. However, as a result of the Bank's replevin, Perma Septic

chose to repay C & C its purchase price of $25,000.00.

¶28. While Perma Septic did offer, via David Ashmore, a list of the repairs it asserts it made, there is

nothing to indicate Perma Septic established that these repairs were reasonable and necessary. Further,

Perma Septic has presented a lengthy and detailed argument as to why it should not be held liable to the

Bank, yet it presents no citation to any legal authority as to why the Bank should be held liable to it by way

of damages or an offset.

4.

¶29. Since we have found that Perma Septic is liable for conversion of the excavator, it naturally follows

that Perma Septic is liable to the Bank for damages. Perma Septic has provided us with no basis for its

claim of an offset, nor did Perma Septic establish that the repairs were reasonable and necessary. When

considering the entire record in this case, and the applicable case law, this Court concludes that the trial

court's award of damages against Perma Septic in the amount of $35,070.72 for conversion of the

excavator was proper and is beyond the authority of this Court to disturb.

III. GLEN EAVENSON

A. WHETHER THE CIRCUIT COURT ERRED IN HOLDING THAT GLEN

EAVENSON'S DEBT TO THE BANK WAS DISCHARGED BY THE BANKRUPTCY

PROCEEDING, THEREBY CAUSING EAVENSON TO BE DISMISSED AS A

DEFENDANT IN THIS CASE.

¶30. Eavenson had filed an answer and cross-complaint against Greenline and Perma Septic in the case,

sub judice. The trial court ruled that absent evidence of Eavenson's reaffirmation of his debt to the Bank,

Eavenson should be dismissed as a party, with the dismissal including any cross-claims asserted by

Eavenson. It is Eavenson's position that the pleading of a discharge in bankruptcy is an affirmative defense

and a personal defense. He concludes that he did not raise this affirmative defense, and further admitted that

he owed the Bank, and consequently, the circuit judge erred in dismissing him from this case. We disagree.

¶31. Eavenson filed for bankruptcy after the conversion; therefore, Eavenson's cause of action became

property of the bankruptcy estate. Accordingly, the bankruptcy trustee, and not Eavenson, was the only

party who could pursue the claims. Notwithstanding Eavenson's assertions to the contrary, there is simply
no evidence presented of a reaffirmation of the debt. Additionally, under bankruptcy law, when a petition

for bankruptcy is filed, that petition creates an estate. 11 U.S.C. § 541. Under § 541, all property of the

debtor becomes a part of the estate, including causes of action belonging to the debtor at the time the case

is commenced. 11 U.S.C. § 541.10; Billingham v. Wynn & Wynn, P.C., (In re Rothwell), 159 B.R.

374, 377 (Bankr. D. Mass. 1993); see 4 Collier on Bankruptcy, at 74-3, 74-4 (2002). Eavenson had no

standing to pursue this action on his own behalf. Consequently, this assignment of error is without merit.

B. WHETHER THE CIRCUIT COURT ERRED IN HOLDING THAT GLEN

EAVENSON CANNOT MAINTAIN A SUIT AGAINST GREENLINE AND PERMA

SEPTIC BECAUSE HE WAS REQUIRED TO FILE A COMPULSORY

COUNTERCLAIM PURSUANT TO MISS. R. CIV. P. 13(A) AT THE TIME HE FILED

HIS MOTION TO SET ASIDE THE DEFAULT JUDGMENT.

¶32. Because of the ruling in Section III.A., above, the Court determines that there is no reason to address

this assignment of error.

CONCLUSION

¶33. Greenline is not liable to the Bank for conversion of the excavator; therefore, the trial court's judgment

for conversion and award of damages against Greenline and in favor of the Bank is reversed and rendered.

Greenline's legal malpractice claim against its former lawyer was barred by the then-applicable statute of

limitations; therefore, the trial court is affirmed on this issue. Greenline's indemnity claim is without merit. The

trial court's judgment for conversion and award of damages against Perma Septic and in favor of the Bank

is affirmed. Perma Septic is not entitled to indemnity against Greenline nor entitled to a judgment or offset

against the Bank. The trial court did not err in dismissing Eavenson as a defendant and disallowing

Eavenson's claims against Greenline and Perma Septic.

¶34. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., COBB, DIAZ AND GRAVES, JJ.,

CONCUR. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITH

SEPARATE WRITTEN OPINION. WALLER, J., NOT PARTICIPATING.

EASLEY, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶35. I concur solely with the majority's determination that Greenline's malpractice claim against its attorney,

Jack H. Hayes, Jr., is barred by the applicable statute of limitations. The trial court found that the then

applicable six-year statute of limitations commenced running by December 16, 1986, the date Perma Septic

sold the excavator in question. Therefore, I concur in the affirmance of the trial court's finding that the

applicable statute of limitations had run, thereby causing Greenline's third-party complaint against its lawyer

for legal malpractice to fail.

¶36. I respectfully dissent as to all other issues addressed by the majority opinion.