Robert W. Stratton, Sr. v. Jerry McKey ( 2020 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2019-CP-00822-SCT
ROBERT W. STRATTON, SR.
v.
JERRY McKEY
DATE OF JUDGMENT: 08/01/2017
TRIAL JUDGE: HON. FORREST A. JOHNSON, JR.
TRIAL COURT ATTORNEYS: FRANCOIS DAVID CHOUDOIR
JAMES DANIEL SMITH
COURT FROM WHICH 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 - REAL PROPERTY
DISPOSITION: AFFIRMED IN PART AND REVERSED IN
PART - 07/30/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE KITCHENS, P.J., BEAM AND ISHEE, JJ.
KITCHENS, PRESIDING JUSTICE, FOR THE COURT:
¶1. This case involves the final months in the long life of a venerable antique truck. This
Court rendered a judgment for Robert W. Stratton, Sr., in his appeal of a judgment in his
replevin action against Jerry McKey to recover possession of a 1949 International KB three-
quarter ton pickup truck. Stratton v. McKey, 204 So. 3d 1245, 1250 (Miss. 2016) (Stratton
I). When McKey failed to relinquish possession of the truck, Stratton filed another complaint
against him, and McKey filed a counterclaim for fees for storing the truck. McKey conceded
that because he had sold the truck during the pendency of Stratton’s appeal, he owed Stratton
the truck’s value. After a bench trial, the Circuit Court of Amite County awarded Stratton
$350, which represented the value of the truck after the deduction of $1,000 in storage fees
owed to McKey.
¶2. Stratton appeals, challenging the amount of damages and attacking the circuit court’s
award of storage fees to McKey. McKey has failed to file an appellee’s brief. We affirm in
part and reverse in part.
FACTS
¶3. Stratton owned an antique truck and, in 2006, he delivered it to John Shivers’s vehicle
repair and restoration business in Liberty, Mississippi. Stratton and Shivers contemplated that
Shivers would restore the truck at some point in the future, but they made no firm plans for
the restoration, and they never agreed that Shivers would charge a storage fee. Stratton’s
truck remained at Shivers’s shop until Jerry McKey bought the business from Shivers in May
2009. Shivers told McKey that Stratton owned the truck, but neither Shivers nor McKey
notified Stratton of the change in the business’ ownership. When Stratton learned that the
business had changed hands, he contacted McKey and requested possession of the truck. But
McKey refused to let Stratton have his truck unless he paid storage fees. Stratton sued
McKey for replevin, and the circuit court ruled that Stratton was entitled to possession of the
truck conditioned upon his paying McKey $880 for storage fees within thirty days. Stratton
I, 204 So. 3d at 1247.
¶4. After Stratton appealed and the Court of Appeals affirmed, this Court granted
Stratton’s petition for a writ of certiorari. On December 8, 2016, the Court reversed the
decisions of the circuit court and the Court of Appeals and rendered a judgment holding that
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Stratton was entitled to possession of the truck. Stratton I, 204 So. 3d at 1250. The Court
held that the circuit court had erred by awarding storage fees to McKey because McKey did
not request storage fees in a responsive pleading. Id. at 1248.
¶5. On February 10, 2017, Stratton filed a motion for contempt in circuit court alleging
that McKey continued to withhold the truck from him in contravention of this Court’s
decision. The circuit court ruled that Stratton was entitled to immediate possession of the
truck. On March 9, 2017, Stratton filed a complaint against McKey for damages related to
McKey’s failure to relinquish the truck. He requested damages for depreciation to the truck,
loss of income, intentional infliction of emotional distress, outrageous conduct, conversion,
or other causes of action that might come to light in the course of the proceedings. McKey
answered and counterclaimed for storage fees. He averred also that he had sold the truck for
scrap. Later, McKey conceded that he was liable to Stratton for the value of the truck.
¶6. The circuit court denied both parties’ motions for summary judgment. At a bench trial,
the circuit heard testimony from Stratton, McKey, Shivers, and the truck’s purchaser, Wayne
Wallace. Testimony established that Shivers had kept the truck on display outside his
business to attract customers. Stratton testified that on April 27, 2009, he noticed that the
truck had disappeared. He went inside the shop and spoke with McKey, who refused to return
the truck unless he paid a storage fee. Stratton then filed the replevin action, and the court
ordered that Stratton was entitled to possession of the truck if he paid McKey $880 within
thirty days.1 Stratton testified that the day before the expiration of the thirty days, he had
1
The circuit court found that McKey was entitled to reasonable storage fees of
$1,000, from which it subtracted $120 for court costs, leaving an $880 fee to be paid by
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called McKey and offered to pay by check but that McKey had refused to accept payment in
the form of a check.
¶7. McKey testified that he did not accept Stratton’s check because his business did not
take checks. According to McKey, before Stratton sued him, Stratton could have taken the
truck “anytime.” McKey said that he never demanded money from Stratton when he asked
for the truck in April 2009, though he did send him a storage bill. McKey testified that he
eventually moved the truck behind his building, where it sat for a couple of years, and that
he then moved it to dry storage. McKey testified that the truck had been in bad condition
when he bought the business and that its condition had deteriorated severely between 2009
and 2015. In 2015, he put it in front of the shop again. On October 15, 2015, McKey sold the
truck to Wayne Wallace for $400. Wallace testified that he buys antique vehicles and owns
a salvage business. Wallace testified that his inspection of the truck revealed that although
the outside body of the truck looked good, its engine was locked up and the frame and cab
were severely rusted. Because the truck would have cost more to restore than he could have
sold it for, Wallace sold it to a salvage yard, where it was crushed.
¶8. Regarding the truck’s value, Shivers testified from his expertise in buying and
restoring antique vehicles that the truck had been worth between $1200 and $1500 at the time
he sold his business to McKey.2 He testified that at that point it had needed a complete
restoration of the body and interior. Stratton testified that he had purchased the truck at
Stratton before he could take possession of the truck.
2
The parties stipulated that Shivers was qualified to give expert testimony on the
truck’s value.
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auction in 1995 for $10,000 and that the truck had been worth between $15,000 and $20,000
when he left it with Shivers. Stratton testified that at that time, the truck would run but
needed work.
¶9. The circuit court found that Stratton was entitled to recover the truck’s value but that
no evidence supported his claims for damages over and above the truck’s value. The circuit
court accepted the middle of the price ranges offered by Shivers and found that the truck had
been worth $1,350 at the time Stratton sold the business to McKey. Also, the circuit court
found that McKey was entitled to storage fees in the amount of $1,000. The circuit court
based this award on McKey’s testimony that he had sent Stratton a bill for $20 per day for
storage for the two years leading up to the initial hearing. The circuit court noted that in its
original ruling, it had found that $1,000 for storage fees was reasonable. The circuit court
found that considering the circumstances of the case, $1,000 remained a reasonable amount
and that “[t]he defendant is entitled to no storage whatsoever for the subsequent period
following the replevin action.” After deducting the storage fees from the truck’s value, the
circuit court awarded the balance of $350 to Stratton.
STANDARD OF REVIEW
¶10. “[W]hen a trial judge sits without a jury, this Court will not disturb his factual
determinations where there is substantial evidence in the record to support those findings.”
Ezell v. Williams, 724 So. 2d 396, 397 (Miss. 1998) (citing Yarbrough v. Camphor, 645 So.
2d 867, 869 (Miss. 1994)). The general rule is that the Court will affirm unless the circuit
court was manifestly wrong. Id. (quoting Yarbrough, 645 So. 2d at 869). Questions of law
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are reviewed de novo. Falkner v. Stubbs, 121 So. 3d 899, 902 (Miss. 2013) (citing Davis v.
Smith (In re Estate of Smith), 69 So. 3d 1, 4 (Miss. 2011)).
¶11. McKey did not file an appellee’s brief. This Court has adopted two alternative
approaches for reviewing a case in which the appellee has neglected to file a brief. First, the
Court may “accept appellant’s brief as confessed and . . . reverse.” May v. May, 297 So. 2d
912, 913 (Miss. 1974). That is the appropriate course of action when the record is
voluminous or complicated and the appellant’s thorough treatment of the issues in the brief
makes out “an apparent case of error.” Miller v. Pannell, 815 So. 2d 1117, 1119 (Miss. 2002)
(internal quotation mark omitted) (quoting May, 297 So. 2d at 913). “The second alternative
is to disregard the appellees’ error and affirm.” Id. “This alternative should be used when the
record can be conveniently examined and such examination reveals a ‘sound and
unmistakable basis or ground upon which the judgment may be safely affirmed.’” Id.
(quoting May, 297 So. 2d at 913).
¶12. The record in this case is neither complicated nor voluminous. Nonetheless, we find
that Stratton’s brief establishes an apparent error in the circuit court’s failure to recognize
that McKey’s counterclaim was filed outside the statute of limitations. Regarding Stratton’s
other issues, our examination of the record “reveals a ‘sound and unmistakable ground upon
which the judgment may be safely affirmed.’” Id. (quoting May, 297 So. 2d at 913).
DISCUSSION
¶13. For clarity, we have consolidated Stratton’s issues under three headings.
I. Whether the circuit court’s valuation of the truck was manifestly
wrong.
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¶14. Stratton argues that the circuit court’s valuation of the truck was erroneous and denied
him due process. He contends that circuit court used the wrong date to value the truck and
that the truck was worth far more than $1,350.
¶15. We find that the circuit court’s valuation of the truck was not manifestly erroneous.
Stratton argues that the circuit court erred by valuing the truck as of November 30, 2010, the
date of its judgment in Stratton’s original replevin suit. He argues that the circuit court should
have used April 27, 2009, as the date of valuation because that was the date that he first
asked McKey for possession of the truck. A review of the circuit court’s order reveals that
the court found that Stratton was entitled to the truck’s value “from the time of the court’s
erroneous decision on the replevin action,” which was November 30, 2010. But the circuit
court found that the sole credible evidence of value came from Shivers’s testimony that the
truck was worth between $1,200 and $1,500 on the date he sold the business to McKey.
Testimony established that this sale occurred in May 2009, and no evidence indicated that
the truck’s condition had changed materially between April 27, 2009, and May 2009.
Therefore, the circuit court did not use November 30, 2010, as the date of valuation but
actually valued the truck as of May 2009, a date that was very close to the April 27, 2009
date that Stratton urges. The circuit court did not manifestly err by using May 2009 rather
than April 27, 2009, to value the truck.
¶16. Stratton argues also that because Shivers testified in the first trial and in the second
trial that the truck was worth between $15,000 and $20,000, the circuit court’s finding that
the truck was worth $1,350 was erroneous. He argues also that Shivers’s testimony
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established the truck’s value in the first trial and was res judicata, barring further
consideration of value in the second trial.3 These arguments have no merit. The record of the
first trial is not before the Court, and Stratton presented no evidence or argument in the
second trial that the truck’s value had been decided in the first trial. Instead, Stratton,
obviously believing that valuation was at issue, called Shivers as an expert witness on
valuation in the second trial, and Shivers testified that the truck was worth between $1,200
and $1,500 when he sold the business to McKey. Although Stratton urges that Shivers placed
the value at between $15,000 and $20,000, Shivers testified that the truck’s range in values
would have been between $15,000 and $20,000 had the truck been fully restored. Shivers
testified that the truck had not been fully restored and that it would have needed significant
work to have reached a fully restored condition. This Court finds no error in the circuit
court’s valuation of the truck.
II. Whether the circuit court should have held McKey in contempt for
selling the truck during the pendency of the appeal.
¶17. McKey sold the truck after the Court of Appeals’ decision but before this Court’s
decision on writ of certiorari in the first case. Stratton argues that the circuit court should
have ordered McKey to pay damages for contempt for the sale of the truck. Stratton contends
that the trial court’s failure to do so deprived him of due process. In support of this
3
“The doctrine of res judicata bars parties from litigating claims ‘within the scope of
the judgment’ in a prior action.” Hill v. Carroll Cty., 17 So. 3d 1081, 1084 (Miss. 2009)
(internal quotation marks omitted) (quoting Anderson v. LaVere, 895 So. 2d 828, 832
(Miss. 2004)).
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contention he points out that in the first case, he had secured a supersedeas bond under
Mississippi Rule of Appellate Procedure 8(a).
¶18. The circuit court addressed this issue, finding that Stratton’s supersedeas bond had
secured enforcement of the money judgment entered against Stratton in the first case that had
required him to pay McKey $880 as storage fees in exchange for the truck. The circuit court
found that no court order had prevented McKey’s sale of the truck until this Court’s decision
that Stratton was entitled to possession. Stratton argues that the circuit court’s finding was
erroneous because the supersedeas bond had operated as a stay of the judgment that
prevented the truck’s sale. A review of Rule 8(a) belies Stratton’s argument. The rule
provides that a supersedeas bond stays a money judgment pending appeal. M.R.A.P. 8(a).
According to Rule 8(b), other stays generally must be sought in the trial court. M.R.A.P. 8(b).
Under Rule 8(c), an appellant may seek a stay from the Supreme Court or the Court of
Appeals upon a showing that an application to the trial court is impracticable or the trial court
has denied relief. M.R.A.P. 8(c). Stratton never applied to the trial court or to either appellate
court for a stay. Therefore, the circuit court did not manifestly err by finding that McKey had
taken no action inconsistent with the supersedeas bond.
¶19. Stratton argues also that the circuit court should have held McKey in contempt under
Mississippi Code Section 11-37-137, which provides that
If the defendant be found to be in possession of the property in question at the
time of the service of process upon him, and if he shall conceal said property
or dispose of the same, or fail to have the same within the jurisdiction of the
court for such final judgment as may be rendered by the court in said replevin
action, upon the return day of process herein, he shall be subject to penalties
of contempt, upon motion of the plaintiff or order of the court.
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Miss. Code. Ann. § 11-37-137 (Rev. 2019). The statute provides that the defendant, having
been found in possession of the property on the date he is served with process, will be subject
to contempt penalties if he disposes of the property before the trial court’s final judgment.
The contempt penalties are assessed “upon the return date of process herein.” Id. Under its
plain language, Section 11-37-137 governs property disposal before the final judgment, not
during the pendency of the appeal. Once the trial court enters a final judgment and an appeal
is perfected, the appellee’s disposition of the disputed property is governed by Mississippi
Rule of Appellate Procedure 8. As discussed above, Stratton did not invoke Rule 8(b) by
applying to the circuit court or to either appellate court for a stay. Therefore, his argument
that the trial court erred by not holding McKey in contempt is without merit.
III. Whether the circuit court erred by granting McKey’s counterclaim
for storage fees.
¶20. Stratton makes two arguments contending that the circuit court erred by granting
McKey’s counterclaim for storage fees. Neither of these arguments challenges the merits of
the trial court’s finding that McKey was entitled to storage fees.4 Stratton’s first argument
is that the storage fee claim was a compulsory counterclaim that McKey had to assert in the
first lawsuit and that allowing the counterclaim violated his right to due process. Because
Stratton’s second argument has merit, we do not address the compulsory counterclaim issue.
4
Stratton makes a one-line argument that “[a]s a matter of fact, [McKey] has no claim
for storage, because John Shivers, the building owner and appellant, had an agreement to
store the antique vehicle without charge.” Because Stratton cites no authority supporting this
argument, it is procedurally barred. Edmonds v. Edmonds, 935 So. 2d 980, 988 (Miss.
2006).
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¶21. Stratton’s second argument is that McKey filed his counterclaim for storage fees
outside the three-year statute of limitations. Miss. Code Ann. § 15-1-49 (Rev. 2019). In
Stratton I, this Court reversed the circuit court’s award of storage fees because McKey’s
failure to file a counterclaim had deprived Stratton of notice and due process of law. Stratton
I, 204 So. 3d at 1245. Because McKey never filed and properly served a counterclaim in the
first action, he lacked the benefit of tolling during the first action. Thornhill v. Ingram, 178
So. 3d 721 (Miss. 2015) (quoting Sweet Valley Missionary Baptist Church v. Alfa Ins.
Corp., 124 So. 3d 643, 645 (Miss. 2013)). On April 10, 2017, McKey filed a counterclaim
for storage fees in the second action. The circuit court awarded McKey fees for having stored
the truck for a period of time that ended with the judgment in the first replevin action on
November 30, 2010. But McKey was almost seven years too late in filing a claim for storage
fees that had accrued at the latest on or before November 30, 2010.
¶22. We observe that Stratton did not file a reply to McKey’s counterclaim within the
thirty-day time period prescribed by Mississippi Rule of Civil Procedure 12(a). Ordinarily,
“[a]n affirmative defense, such as a statute of limitations, is waived if not raised by a
pleading.” Miss. Dep’t of Human Servs. v. Guidry, 830 So. 2d 628, 634 (Miss. 2002) (citing
Miss. R. Civ. P. 12(b)). Under the particular circumstances of this case, we find no waiver.
Stratton did raise the statute of limitations in a motion for summary judgment filed within
thirty days of McKey’s counterclaim. McKey never advanced a waiver theory. In fact, he has
elected not to file a responsive brief in this appeal. And Stratton made arguments on the
statute of limitations at the hearing with no objection from McKey.
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¶23. We hold that Stratton’s statute of limitations affirmative defense was before the circuit
court. We hold further that because McKey filed the counterclaim for storage fees outside
the three-year statute of limitations, the counterclaim was untimely and the circuit court erred
by awarding storage fees. Therefore, we reverse the circuit court’s award of storage fees to
McKey.
CONCLUSION
¶24. We reverse the circuit court’s award of storage fees. Otherwise, we affirm.
¶25. AFFIRMED IN PART AND REVERSED IN PART.
RANDOLPH, C.J., KING, P.J., COLEMAN, MAXWELL, BEAM,
CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.
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