IN THE SUPREME COURT OF MISSISSIPPI NO. 2014-IA-00783-SCT COV INGTON COUNTY BANK, A MISSISSIPPI BANKING CORPORATION

v. EARNEST RAY

MAGEE DATE OF JUDGMENT: 05/22/2014 TRIAL JUDGE: HON. EDDIE H. BOW EN TRIAL COURT ATTORNEYS: A. REGNAL BLACKLEDGE GEORGE THOMAS SULLIVAN COURT FROM W HICH APPEALED: COVINGTON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: A. REGNAL BLACKLEDGE ATTORNEY FOR APPELLEE: GEORGE THOMAS SULLIVAN NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: AFFIRMED AND REMANDED - 10/15/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. DICKINSON, PRESIDING JUSTICE, FOR THE COURT: ¶1. Earnest R ay Magee sued Covington County Bank ( CCB) f o r conversion a f

ter it seized collateral f

or a pro mi s sory note and later sold t he property at auction. CCB m o ved under Mississippi Rule of Civil Procedure 12(b)(6) to dism iss, arguing (1) t h a t t h e statute of lim itations h ad expired; ( 2 ) t h a t i t had a contractual right to t he property ; and (3) that Magee’s c laim w as barred by issue preclusion. The circuit judge denied CCB’s m otion and we af f irm

.FACTS AND PROCEDURAL HISTORY

¶2. C C B s o u g h t a w rit of replevin to s eize collateral when Ma g e e f a i l e d t o ma k e pay m ents on a prom issory note. 1 A circuit judge granted replevin, and C C B t o o k the property —two trucks and a trailer—in Decem ber 2008. 2 But on Magee’s m otion, the judge
set aside his order and rem anded the case to justice court to determ ine whether CCB should
pay Magee’s attorney

f ees. 3 ¶3. In justice court, Magee counterclaim ed f or d am ages above the c o urt’s jurisdictional lim it, and the judge dism issed the case without p rejudice. 4 Magee t hen m oved f or a writ of inquiry s eeking dam a ges in the circui t c o u r t

. 5 T he c ircuit judge initially ruled in Magee’s f avor, but CCB obtained relief f r om the judgm ent, a nd Magee appealed. 6 On Septem ber 25, 2012, the Mississippi Court of Appeals af f i rm e d , f i nding that the circuit cou r t lacked jurisdiction to consider Magee’s m otion f or writ of inquiry

. 7 ¶4. So, on August 3 0 , 2013, Magee f iled this c o n v e r s i o n a c tion a gainst CCB. CCB

m oved to dism iss, arguing t hat the statute o f lim itations had r un, t hat the pro mi s s o ry note

1 M a g ee v. C o vin g t o n C n t y. B a n k , 1 1 9 S o . 3 d 1 0 5 3 , 1 0 5 4 (M iss. C t. A p p . 2 0 1 2 ).

2 Id . at 1 0 5 4

– 5 5

. 3 Id . at 1 0 5 5

. 4 Id . 5 Id . 6 Id . at 1 0 5 5

– 5 6

. 7 Id . at 1 0 5 6

– 5 8

. 2gave CCB a contractual right to the property , a nd that the Court of Appeals’ 2012 decision

barred this claim through issue preclusion. CCB also requested attorney f ees and costs. The circuit jud g e d e n i ed CCB’s m otion. CCB appealed, asserting the sam e i ssues it had presented to the circuit judge. ANALYSIS ¶5. A m otion to dism iss under Rule 12(b)(6) presents questions of law which w e review de novo. 8 On a motion to dism iss, “the allegations in the com plaint m ust be taken as true,

a nd the m otion s hould not be g r anted unless it appears bey ond d oubt that t he p laintif f wil l be unable to prove a ny set of f acts in s upport of his claim .” 9 “Rule 12( b )(6) m o tions ‘are decided on the f

a c e of t he pleadings a lone.’” 10 Here, looking to the f ace of the c om

plaint,

we cannot say that M agee’s claim s are tim e-barred, b arred b y issue preclusion, or that CCB had a contractual right to the property . So we af f irm

. I. Statute of Lim itations

8 C ity o f B elm o n t v. M

iss. S ta te T a x C o m m ’n , 8 6 0 S o . 2 d 2 8 9 , 2 9 5 ( M i s s . 2 0 0 3 ) (citin g T u ck e r v. H

in d s C ty. , 5 5 8 S o . 2 d 8 6 9 , 8 7 2 (M iss.1 9 9 0 ); L ester E n g ’g C o . v. R i ch la n d W

a t er & S ew er D ist. , 5 0 4 S o . 2 d 1 1 8 5 , 1 1 8 7 (M iss. 1 9 8 7 ); U H S

– Q u a lica re, In c. v. G u lf C o a st C m ty. H o sp ., In c. , 5 2 5 S o . 2 d 7 4 6 , 7 5 4 (M iss. 1 9 8 7 )).

9 C ity o f B elm o n t , 8 6 0 S o . 2 d at 2 9 5 (citin g B rew e r v. B u rd e tte , 7 6 8 S o . 2 d 9 2 0 , 9 2 2 (M iss. 2 0 0 0 )); O ver

s t r e e t v . M erlo s , 5 7 0 S o . 2 d 1 1 9 6 , 1 1 9 7 (M i ss. 1 9 9 0 ); G ra n th a m v. M iss. D e p ’t o f C o rr. , 5 2 2 S o . 2 d 2 1 9 , 2 2 0 ( M iss. 1 9 8 8 ); L ester E n g ’g C o . , 5 0 4 S o . 2 d at 1 1 8 7 ; S t a n t o n & A sso cs., In c. v. B rya n t C o n str. C o . , 4 6 4 S o . 2 d 4 9 9 , 5 0 5 (M iss. 1 9 8 5 )).

10 S ta te v. B a yer C o rp . , 3 2 S o . 3 d 4 9 6 , 5 0 2 (M iss. 2 0 1 0 ) (q u o t in g H a rtfo rd C a s. In s., C o . v. H a llib u rto n C

o . , 8 2 6 S o . 2 d 1 2 0 6 , 1 2 1 1 (M iss. 2 0 0 1 )).

3¶6. Mississippi Code S ection 15-1-49’s thre e - y e a r s t a t u t e o f l i mi t a t ions applies to

conversion c laim s. 11 That statute “begins to r un when the cause of action accrues, and we have held that t h e ‘cause of action accrues when i t c o m es into existence as an enf orceable claim , that is, when the right to sue becom es vested.’” 12 And “[ u]nder Section 15-1-49, ‘the
statute of lim itations com m ences upon discovery o f an i njury , a nd discovery i s a n issue of f act to be decided by

a jury when there is a genuine dispute.’” 1 3 ¶7. This Court has held that a conversion claim requires “ proof of a wrongf ul possession,

or the exercise of a d om inion in ex c l u s i o n o r def iance of the owner’s right, or of an

u n a u t h orized and i njurious use, or of a wrongf ul detention af

ter d em and.’” 14 “Thus , a conversion e xists only when there is an ‘intent to exercise dom inion or control over goods which is inconsistent with the true owner’s right.’” 15 And “there is no conversion until the title of the lawf

ul owner is m ade known and resisted or t he purchaser e x e r c i ses dom inion

11 M iss. C o d e A n n . § 1 5 -1 -4 9 (R ev . 2 0 1 2 ); A n d erso n v . L a Ve r e , 1 3 6 S o . 3 d 4 0 4 , 4 1 1 ( M iss. 2 0 1 4 ) (citin g E sta t e o f M a rtin L u th er K

in g J r., In c. v. B a llo u , 8 5 6 F

. S u p p . 2 d 8 6 0 , 8 6 3 (S .D . M i ss. 2 0 1 2 )).

12 A n d erso n , 1 3 6 S o . 3 d at 4 1 1 (citin g M iss. C o d e A n n . § 1 5 -1 -4 9 ; q u o tin g B u lla rd v. G u a r d ia n L ife In s. C

o . o f A m . , 9 4 1 S o . 2 d 8 1 2 , 8 1 5 (M iss. 2 0 0 6 )).

13 W ea th ers v. M

etro . L ife In s. C

o . , 1 4 S o . 3 d 6 8 8 , 6 9 2 ( M iss. 2 0 0 9 ) (q u o tin g D o n a ld v. A m o co P

r o d . C o . , 7 3 5 S o . 2 d 1 6 1 , 1 6 7 (M iss. 1 9 9 9 )).

14 S m ith v . F r a n k lin C

u sto d i a n F u n d s, In c. , 7 2 6 S o . 2 d 1 4 4 , 1 4 9 (M i ss. 1 9 9 8 ) (q u o tin g M

iss. M o to r F in . , In c. v. T

h o m a s , 2 4 6 M iss. 1 4 , 1 4 9 S o . 2 d 2 0 (1 9 6 3 ) ).

15 W ilso n v. G en . M

o to rs A ccep ta n ce C

o rp . , 8 8 3 S o . 2 d 5 6 , 6 9 (M iss. 2 0 0 4 ) (q u o tin g F i rst In v’rs C

o rp . v. R a y n er , 7 3 8 S o . 2 d 2 2 8 , 2 3 4 -3 5 (M iss. 1 9 9 9 )).

4o v e r t h e property by use, s ale, or otherwise.” 16 “ W here one acquires possession of t h e

property in a lawf

ul m anner . . . h i s r e f

usal t o relinquish possession or control over the property af ter a dem and by

[ p]laintif f gives rise to the action.” 1 7 ¶8. For exam

ple, a c onversion claim a ccrues the m o m ent a thief steals a car, because the thief has no right t o possess o r use the c ar. But where one loans a car to a f riend, the f

riend’s possession is lawf

ul and would not give rise to a conversion claim unless, a f ter som e period of tim e, the f

riend ref u s e s t o r e t u rn the car af

t er dem and. Because the f riend—or, m ore likely , ex-f

riend—would be exercising possession w i t h o ut a ny right to d o so, t he lawf ul possession transf

orm s into a conversion. ¶9. Indeed, in Johnson v. White , we explained t he various way s conversion claim s can

accrue: The def

endant Johnson had pleaded t he statute of lim itations that t he cause of action had not accrued within three y ears, to which plaintif f s replied generally that t he cause of action had accrued w i thin t hree y ears. The question is thus raised, W hen d id t he statute begin to r un? In trover the cause of a ction accrues by the conversion

. T h e d o ctrine is very clearly laid down in the authorities. The f inder of goods m

ust convert them bef

ore h e is liable, and dem and will be evidence of convers i o n . But when g oods are t ortiously taken, the statute of lim itations begins to run f rom the taking, f

or the tortious act is o f itself a conversion. So an u nlawf ul disposition of property r ightf u lly in possession, is a conversion, and the statute begins to run f rom the tim e of such disposition.

16 C m ty. B a n k

, E llisville, M

iss. v . C o u r t n e y , 8 8 4 S o . 2 d 7 6 7 , 7 7 3 (M iss. 2 0 0 4 ) (q u o tin g T

h o m a s , 1 4 9 S o . 2 d at 2 0 ) (em p h asis o m itted ).

17 G reen l in e E q u ip . C

o rp ., In c. v. C

o vin g to n C

ty. B a n k , 8 7 3 S o . 2 d 9 5 0 , 9 5 8 (M iss. 2 0 0 2 ) (q u o t in g N

a t’l B en efit A d

m ’rs, In c. v. M

iss. M eth o d ist H o sp . & R eh a b . C

tr., In c. , 7 4 8 F . S u p p . 4 5 9 , 4 6 6 (S .D

. M iss. 1 9 9 0 )) (em p h a sis o m i tted ). 5And i t is im m aterial w hether the plaintif f k new of the conversion or not, if no f raud was practi[ c ]ed to prevent his knowledge. 18 ¶10. W h en a person steals property f rom another, a conversion claim a ccrues at the t im e when the property i s stolen. 19 But where a person initially p ossesses p roperty lawf ully , the
person m ust actually

convert the property

bef o re he can be held liable f or conversion. 20 ¶11. Here, Magee f

iled his conversion claim on August 30, 2013. Magee’s com p laint does
not specif y the date the conversion occurred. But he a rgued to t he trial judge that “CCB did
not convert the property until som etim e af ter Friday of Labor Day

W e e kend in 2010 as the property w as on the [ b]ank[ ’]s real estate adjacent to t he [ b]ank [ b]uilding in Collins, Mississippi[ ,] up to the said tim e since it was originally placed there.” 21 ¶12. At the hearing, M agee also argued that his c laim m ay h a v e a c c r u e d even later, on O c tober 25, 2012, when CCB sold Magee’s property at a uction. CCB count e r e d t h a t Magee’s conversion claim accrued at the latest i n J une 2009 when t h e circuit court signed

an order setting aside CCB’s original replevin action. The c ircuit court ultim ately f ound that “the sale date of the property involved by Covington County B ank was Dec. 8, 2012, having been delivered to Martin & Martin Auctions on o r a bout Octo b er 25, 2012 by Covington

18 J o h n so n v. W

h ite , 2 1 M iss. 5 8 4 , 5 8 8 (1 8 5 0 ) (citin g R e a d v. M a rk le , 3 Jo h n s. C as. 5 2 3 , 5 2 6 (N .Y . S u p . C t. 1 8 0 8 )).

19 J o h n so n , 2 1 M iss. at 5 8 8

. 20 Id . 21 In 2010, Labor Day

f ell on Septem

ber 6. 6County Bank to be auction[ e d] of f ,” and tha t “ [ p ] l a intif

f ’s c ause of action f

o r conversion accrued on Dec. 8, 2012.” ¶13. Because CCB m ay h a v e w r o n g f u l l y possessed Magee’s personal property when it

m oved it bef

ore Labor Day weeke n d i n S e ptem ber 2010, o r as the t rial judge f ound, CCB

m ay h a v e wrongf

ully possessed M agee’s property w hen it auctioned it o f f and sold it in Decem ber 2012, we cannot say

— looking only to the f

ace o f M a g e e ’ s com

plaint—that Magee’s conversion claim is tim e-b a r r e d

. S a i d d if f erently , t he m otion to dism iss was properly denied on t his ground b ecause the j udge could not have f ound that there was no set of f acts under which this com plaint would be tim ely

. 2 2 ¶14. The dissent s uggests t hat Magee’s cause of action accrued when t he circuit judge set aside the writ of replevin that C CB o b t a i ned to take possession of t he property

. But the circuit judge did not adjudicate whether CCB had a right to the property when he set aside the writ. Rather, the circuit judge s et aside t he w rit based on i nsuf f icient service of process. 23
II. Contractual Right to the Property ¶15. CCB also a rgues that its m otion to dism iss should have been granted because it has

a c o ntractual right to the property

. To establish that c ontractual right, CCB attached a copy

22 C ity o f B elm o n t , 8 6 0 S o . 2 d at 2 9 5 (citin g B rew er , 7 6 8 S o . 2 d at 9 2 2 ; O verstreet , 5 7 0 S o . 2 d at 1 1 9 7 ; G ra n th a m , 5 2 2 S o . 2 d a t 2 2 0 ; L ester E n g ’g C o . , 5 0 4 S o . 2 d at 1 1 8 7 ; S ta n to n & A s so cs., In c

. , 4 6 4 S o . 2 d at 5 0 5 ).

23 M a g ee , 1 1 9 S o . 3 d at 1 0 5 5 (“M ag ee’s m o tio n to set asid e th e rep lev in w as f iled o n F eb ru ary 2 4 , 2 0 0 9

. H e arg u ed th a t th e rep lev i n s h o u ld b e set asid e f o r in su f f icien t serv ice o f p ro cess.”). 7of the prom issory note as a n exhibit to its answer and m otion to d ism iss. As stated above,

“Rule 12(b)(6) m otions ‘are decided o n the f ace of the pleadings a lone.’” 24 This is because

a m otion to dism iss under Rule 12(b)(6) challenges the suf f iciency o f the com

plaint. 25 Neither the com

plaint, nor any exhibit t o it, 26 establishes that CCB had a contractual right to the property

. ¶16. Certainly , u n d e r Rule 12(b)(6), the circuit judge could have considered the exhibit attached t o the def

endant’s m o tion. 27 But f

or the exhibit to have warranted a ruling in CCB’s f avor, the circuit judge would have to have (1) converted the m otion to dism iss into one f or

sum m ary judgm ent under M ississippi Rule of Civil Procedure 56; ( 2) provided notice that he was doing so; and (3) p rovided an o pportunity t o s upplem e nt the record. 28 No s uch notice
appears in the record, and the c ircuit judge’s order disposes of the m otion a s one u nder Rule 12 without any

m ention of

the prom issory

note. III. Issue Preclusion

24 B a yer C o r p . , 3 2 S o . 3 d at 5 0 2 (q u o tin g H a r t f o r d C a s. In s., C

o . , 8 2 6 S o . 2 d at 1 2 1 1 ).

25 B a

yer C o r p . , 3 2 S o . 3 d at 5 0 2 (q u o tin g T .M . v. N o b litt , 6 5 0 S o . 2 d 1 3 4 0 , 1 3 4 5

– 4 6 (M iss. 1 9 9 5 )).

26 M iss. R u le C iv

. P

. 1 0 (c) (“A co p y o f an y w ritten i n stru m en t w h ich i s a n e x h ib it to a p lead in g is a p art th ereo f f o r all p u rp o s es.”).

27 M i ss. R . C iv . P

. 1 2 (b ).

28 B a yer C o rp . , 3 2 S o . 3 d at 5 0 3

– 0 4 (citin g W ilb o u r n v. E q u ita b le L i

fe A ssu ra n ce S o c’y , 9 9 8 S o . 2 d 4 3 0 (M i ss. 2 0 0 8 ); S u lliva n v. T u llo s , 1 9 S o . 3 d 1 2 7 1 (M iss. 2 0 0 9 )). 8¶17. Next, CCB contends t hat Magee’s com plaint should have been dism issed because his conversion claim is barred by issue preclusion. Af ter C CB obtained a writ of replevin, seized the property , and the circuit judge set aside his order, Magee sought dam ages in the circuit
court. 29 The circuit judge initially ruled in Magee’s f avor, b ut then set aside t hat judgm ent. 30 The Court of Appeals af

f i rm ed because the circuit court lacked jurisdiction to h ear the case. 31 ¶18. But in its opinion, in response to the dissent, the Court o f A ppeals stated t hat CCB had

a right t o t he property under the p rom issory note. 32 CCB n ow a rgues that this statem ent by the Court of

Appeals bars Magee’s conversion claim . W e disagree. ¶19. I s s u e p r e c l u s ion—or collateral estoppel—prevents litigation of “a speci f i c i s s u e actually litigated, determ ined by , and essentia l t o t h e judgm ent in a f orm er action, even though a dif

f erent cause of action is the subject of the subsequent a ction.” 33 In its opinion, the Court of A ppeals did s a y t h a t the prom issory note gave CCB a r ight to t he property if

29 M a g ee , 1 1 9 S o . 3 d at 1 0 5 4

– 5 5

. 30 Id . 31 Id . at 1 0 5 9

. 32 Id . at 1 0 5 7 n .1

. 33 D u n a w a

y v. W . H . H o p p er & A sso c s., In c. , 4 2 2 S o . 2 d 7 4 9 , 7 5 1 (M iss. 1 9 8 2 ) (citin g L e e v. W

iley B u n t in A d ju ster, In c. , 2 0 4 S o . 2 d 4 7 9 (M iss. 1 9 6 7 ) ; L yle C a sh io n C o . v. M cK e n d r ick , 2 2 7 M iss. 8 9 4 , 8 7 S o . 2 d 2 8 9 (1 9 5 6 )). 9M a g e e f

a i led to m ake p ay

m ents, and that the parties did not dispute that Magee had do n e

so. 34 But that statem ent, in a f ootnote, was n ot “essential t o t he j udgm ent in a f orm er action.” ¶20. The issue b e f

o r e t h e C o u r t o f A p peals was the circuit court’s jurisdiction, and it disposed of the case on that g round alone. 35 C CB’s rights u nder the prom i ssory note play ed

no part i n that analy s is. Rather, the statem ent Magee cites c a m e in response to the dissent and had no ef

f ect on the court’s decision. ¶21. More o v e r , t h e c ourt noted that “[ b]y holding that Magee h ad no right to a writ of inquiry , we do not inf

er that M agee has n o potential rem edy

. Any claim f or dam ages Magee

m ay have suf

f ered f rom CCB’s taking of his p roperty c ould have been brought in a civil suit f or conversion.” 36 The court also s tated that the r ecord lacked suf f icient evidence to consider whether CCB wrongf

ully seized Magee’s property

. 37 ¶22. Because the court’s statem ent was not “essential to the judgm ent in a f orm e r action,” collateral estoppel cannot bar Magee’s conversion claim

. IV. Attorney Fees and Costs ¶23. Finally , CCB r e quested that the circuit court not only dism i ss Magee’s claim s, but also award CCB attorney f

ees and costs because M agee’s claim w as f rivolous. B ecause we f

ind

34 M a g ee , 1 1 9 S o . 3 d at 1 0 5 7 n .1

. 35 Id . at 1 0 5 6 , 1 0 5 9

. 36 Id . 37 Id . at 1 0 5 7 n .1

. 1 0t h a t the c i rcuit j udge properly denied the m o tion to dism iss, we need not address CCB ’ s

request f or sanctions. CONCLUSION ¶24. W e c annot, f

rom the f

ace of the com

plaint, d e t e r mi n e w h e t h e r t h e s t a t u te of lim itations ran on Magee’s c laim or whether CCB had a contractual right to the property

. F u rther, collateral estoppel does not bar Magee’s conversion claim

. So the circuit judge properly denied CCB’s m otion to dism iss. And because dism issal was n ot proper, the circuit judge also properly

denied CCB’s request f

or sanctions. W e af

f irm the Covington County Circuit Court’s denial of CC B ’ s m o tion to dism iss a nd rem and the case f or f urther proceedings. ¶25. AFFIRMED AND REMANDED. LAMAR, KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR. PIERCE, J ., DISSENTS WITH SEPARATE WRITTEN O PINION J O I N E D BY WALLER, C.J., AND RANDOLPH, P.J. PIERCE, JUSTICE, DISSENTING: ¶26. Respectf

ully , I dissent f

r o m t h e ma

j o r i t y ’ s f inding that a question r em ains as to whether the statute of lim itations had run on Earnest R a y Magee’s conversion claim

. In m y opinion, based on the pleadings, Magee’s cause of a c tion f o r conversion accrued at the latest in June 2009. Magee had three y ears f rom that point in which to f ile his conversion claim

. Having f iled his conversion claim in August 2013, Magee was well outside the lim itations period p rescribed b y Mississippi Code Secti o n 1 5

- 1

- 4 9 ; theref ore, Magee’s conversion claim

1 1is tim e-barred. A ccordingly , I would reverse the t rial court’s d ism issal of Covington County

Bank’s ( CCB) m otion t o dism iss and render dism issal of the conversion suit, with prejudice, in f a vor CCB . ¶27. The m a

jority is c o r r e c t t h a t t h i s ma t t e r being at the Mississippi Rule of Civil Proce d u r e 12(b)(6) m o tion stage of the proceedings, the court has only t he f ace of the

com plaint to consider. B ut it i s u n d i s p u t e d b y t he parties in this case that CCB took and retained possession of Magee’s property between January a n d M a rch 2009 as a result o f a replevin action f

iled by CCB in July

2008 and granted in August 2008. ¶28. In February 2009, Magee f iled a m otion to set a side t he replevin a nd obtained an order in June 2009, setting it aside. As the Court of A ppeals recognized in Magee v. Covington County Bank , 119 So. 3d 1053, 1057 (Miss. 2013), this was the f irst action taken by Magee since the replevin w a s granted to CCB in August 2008, a nd this “was the f unctional equivalent of

a m o t ion f

o r relief f rom judgm ent under Mississippi Rule of Civil Procedrue 60(b)(4).” The order granting the Rule 60(b)(4) m otion was signed on June 23, 2009, and “[ t]his was a f

inal judgm ent f

rom which an appeal could properly b e taken.” Id

. No appeal was taken by

either party

. Id

. ¶29. As one court has noted, “A cause of action f or the conversion of property s eized under

a writ of replevin wrongf ully sued out does not accrue until the c u s t o d y o f t h e law is
term inated by a f

inal j udgm ent.” Hankins v. Waddell et al. , 26 Tenn. App. 71, 167 S.W

. 2d 694, 694 (1942) (citation om itted).

1 2¶30. Here, a f inal judgm e nt w as entered on June 23, 2009. And a ny cause of action Magee potentially m ay have had with a claim of conversion a c crued on that date or bef ore. True,

as the m ajority correctly points out, the trial court did n ot adjudicate w hether CCB h ad a right
to the property

. B ut that a judgm ent was entered without an adjudication as to whether CCB had a right to the property is of n o m atter, in m y opinion. The property i ndisputably was in CCB’s possession at that point, and wrongf ully s o, according to Magee. ¶31. For these reasons, I respectf ully dissent. WALLER, C.J., AND RANDOLPH, P.J., JOIN THIS OPINION.

1 3