Knights Marine & Industrial Services, Inc. v. Gulfstream Enterprises, Inc. , 2017 Miss. App. LEXIS 207 ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-00064-COA
KNIGHTS MARINE & INDUSTRIAL APPELLANT/CROSS-
SERVICES, INC. APPELLEE
v.
GULFSTREAM ENTERPRISES, INC. APPELLEE/CROSS-
APPELLANT
DATE OF JUDGMENT: 12/15/2015
TRIAL JUDGE: HON. ROBERT P. KREBS
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: KEVIN M. MELCHI
JOHN MAJOR KINARD
ANDY LOWRY
ATTORNEY FOR APPELLEE: STEPHEN WALKER BURROW
NATURE OF THE CASE: CIVIL - OTHER
TRIAL COURT DISPOSITION: JUDGMENT FOR THE APPELLEE IN THE
AMOUNT OF $143,881.01; PRE-
JUDGMENT INTEREST TOTALING
$10,122.92; POST-JUDGMENT INTEREST
OF EIGHT PERCENT PER ANNUM;
ATTORNEY’S FEES AND EXPENSES
TOTALING $9,274.74
DISPOSITION: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART - 04/18/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., BARNES AND FAIR, JJ.
BARNES, J., FOR THE COURT:
¶1. This dispute stems from the clean-up efforts on the Mississippi Gulf Coast due to the
Deep Water Horizon BP oil spill in 2010. Gulfstream Enterprises Inc. (Gulfstream) sued
Knights Marine & Industrial Services Inc. (Knights) under the open-account statute in the
County Court of Jackson County, alleging Knights failed to pay the full balance owed to
Gulfstream for providing a crew-transport vessel with a captain and crew. Gulfstream later
amended its complaint to add a breach-of-contract claim. After a bench trial, the county
court entered: (1) a judgment in favor of Gulfstream for $143,881.01 in compensatory
damages; (2) pre-judgment interest of eight percent per annum from the date Gulfstream
filed its original complaint through the entry of judgment, totaling $10,122.92; (3) post-
judgment interest of eight percent per annum; and (4) attorney’s fees and expenses totaling
$9,274.74; for a total judgment of $163,278.67. Gulfstream’s request for punitive damages
was denied.
¶2. Knights appealed to the Jackson County Circuit Court, and Gulfstream cross-
appealed on the issues of pre-judgment interest, punitive damages, and Knights’s garnished
funds to secure judgment. The circuit court affirmed the county court’s judgment in all
respects.
¶3. Knights now appeals to this Court, and Gulfstream cross-appeals. Gulfstream claims
the county court should have awarded pre-judgment interest starting on the date Knights
failed to pay Gulfstream’s outstanding invoices, not the date Gulfstream filed suit.
Gulfstream also argues the county court erred in not awarding punitive damages, and in
ordering Knights’s funds, which had been successfully garnished by Gulfstream, to be
deposited in the court registry instead of immediately disbursed to Gulfstream. A request
for attorney’s fees for the appeal and post-judgment collection efforts was made by
Gulfstream as well.
2
¶4. On direct appeal, we affirm the $143,881.01 award to Gulfstream under the open-
account statute. On cross-appeal, we affirm the denial of punitive damages to Gulfstream,
but reverse and remand for the circuit court to determine the amount of pre-judgment interest
and Gulfstream’s fees related to post-judgment-collection efforts and defending this appeal.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶5. As part of the clean-up efforts from the Deep Water Horizon oil spill, BP retained the
services of numerous contractors, including United States Environmental Services LLC
(USES). On May 31, 2010, USES contracted with Knights1 to “provide barges and
tugboats, per the direction of USES,” and “[s]upply, install and maintain ocean barrier
fencing as directed by USES.” In late June or early July 2010, Knights contacted Gulfstream
about hiring a crew-transport vessel with a captain and crew, in order to fulfill its contract
with USES. An agreement was reached between Gulfstream and Knights, and on July 8,
2010, Knights issued a purchase order stating Gulfstream would “provide a 42-foot crew
transport vessel jet boat with captain and deckhand not including fuel” in order to “transport
personnel [and supplies] from Biloxi to any of the barrier islands” at the rate of $2,400 per
day.
¶6. From July 8, 2010, until December 4, 2010, Gulfstream claimed the vessel was
available to provide whatever support or services USES needed. Gulfstream admitted that
sometimes the vessel was on standby and not working, as either it was awaiting directions
1
Knights was a contractor under USES tasked with numerous jobs, including
supplying personnel and materials for the clean-up efforts. Knights had approximately three
subcontractors working for it.
3
from USES or there were unsafe marine conditions. The vessel’s activity was recorded daily
in the captain’s logs. However, starting on September 30, 2010, Knights claimed
Gulfstream’s vessel was not in operation at all but had been removed to a staging area for
repairs and maintenance. The captain’s logs do not provide any details about the vessel’s
activities from September 30 through December 5, 2010. Yet it is undisputed that
Gulfstream invoiced Knights weekly for services, fuel, and other charges, whether the vessel
was on standby or working. Knights, in turn, submitted a weekly invoice to USES for
payment, charging USES $2,900 per day for the vessel, or a $500 markup from the amount
Gulfstream billed Knights.2
¶7. Gulfstream pointed out that during this time, the vessel could not be used for any
other job or purpose, and it never was. Ultimately, Gulfstream contended Knights owed an
2
Knights contends its billing arrangement and history with USES is not pertinent to
the merits of this case, but we find its understanding necessary to show the circumstances
surrounding Gulfstream’s unpaid invoices. The record indicates USES paid Knights a total
of $2,648,903.87 for all of the services contracted by Knights for the oil-spill-clean-up
efforts, which would include Gulfstream’s charges, and USES paid Knights all but
approximately $20,000 of the charges. However, Knights claimed it received less than it
was entitled to from USES. In total, Knights invoiced USES approximately $4.7 million for
work on the oil spill from its subcontractors, but Knights explained that it had to take cuts
in payments owed from USES because BP was auditing and delaying payments to USES,
which subsequently delayed and decreased payments to Knights. Also, some funds were
retained by USES from payments Knights received, which USES explained was a customary
billing practice for large oil spills. USES asked Knights to discount its bills for the project,
and Knights asked its subcontractors to do the same. Knights stated that all of its contractors
were taking a significant reduction off their initial invoices. In July 2012, Knights requested
that Gulfstream take a twenty-percent reduction in the total amount invoiced because of
compromises it made with USES to finalize payments to Knights and Gulfstream.
Gulfstream refused. The parties eventually agreed that Knights would pay Gulfstream
$129,492.92, but Gulfstream requested it be paid within ten days, and Knights refused to do
so.
4
outstanding balance of $143,881.013 for services provided. Gulfstream made several
requests to Knights for payment both verbally and in writing, but the balance remained
unpaid. Knights contended that it only owed payment for those days where service was
requested by Knights or USES, and actually performed by Gulfstream.
¶8. On July 23, 2013, Gulfstream sued Knights under the open-account statute of
Mississippi Code Annotated section 11-53-81 (Rev. 2012), and later amended the complaint
to include a breach-of-contract claim. The parties waived their right to a jury trial.
Testifying at the one-day bench trial in the Jackson County County Court were Greg
Ladnier, president of Gulfstream; Will Ladnier, Greg’s brother and boat captain; David
Knight, Knights’s chief financial officer and fifty-percent shareholder; and Eric Hoffman,
chief financial officer of USES.4 The court entered judgment for Gulfstream on
compensatory damages of $143,881.01 under the open-account statute. Pre-judgment
interest and attorney’s fees were also awarded to Gulfstream, but punitive damages were
denied.
¶9. After the judgment was entered, Gulfstream tried to collect its judgment. An agreed
order allowed Knights additional time to appeal to the circuit court and post a supersedeas
bond. A stay was entered upon execution of the judgment, and bond was set at 125% of the
total judgment, or $204,098.34. After the stay expired, Gulfstream filed petitions for writ
3
Gulfstream invoiced Knights a total of $396,654.86 for the vessel rental, fuel, and
other various charges. Knights paid Gulfstream a total of $252,782.85, leaving an unpaid
balance of $143,881.01.
4
Hoffman testified by deposition as USES’s Mississippi Rule of Civil Procedure
30(b)(6) representative.
5
of garnishment to several financial institutions in Jackson County to secure the judgment.
All funds garnished from Knights’s bank accounts were tendered to the registry of the
Jackson County Circuit Court. The court ordered that once cash reached 125% of the
judgment, the funds served as a supersedeas bond and stayed the judgment. Gulfstream filed
a motion to disburse these funds, but it was denied.
¶10. Knights appealed, and Gulfstream cross-appealed to the Jackson County Circuit
Court, which affirmed the county court’s rulings. Appeal and cross-appeal were then taken
to this Court.
ANALYSIS
I. Damages Under the Open-Account Statute
¶11. Knights argues that the county court erred in awarding $143,881.01 in compensatory
damages to Gulfstream under the open-account statute because there were no services
rendered for some of the invoices submitted, and Gulfstream was never entitled to a
“standby rate” for the vessel. We disagree, and find sufficient evidence for the county
court’s award of compensatory damages.
¶12. The county court is the finder of fact, and both the circuit court and this Court are
bound by the county court’s judgment if supported by substantial evidence and not
manifestly wrong. CEF Enters. Inc. v. Betts, 838 So. 2d 999, 1002 (¶10) (Miss. Ct. App.
2003) (citations omitted). Moreover, “[a] judge sitting without a jury has sole authority for
determining credibility of the witnesses.” Byrd Bros. LLC v. Herring, 861 So. 2d 1070,
1073 (¶14) (Miss. Ct. App. 2003) (quoting Rice Researchers Inc. v. Hiter, 512 So. 2d 1259,
6
1265 (Miss. 1987)).
¶13. There is no dispute that the relationship between Knights and Gulfstream involved
an open account under section 11-53-81. An open account is generally “an account based
on continuing transactions between the parties which have not been closed or settled but are
kept open in anticipation of further transactions.” Mauldin Co. v. Lee Tractor Co. of Miss.,
920 So. 2d 513, 515 (¶9) (Miss. Ct. App. 2006) (quoting Westinghouse Credit Corp. v.
Moore & McCalib Inc., 361 So. 2d 990, 992 (Miss. 1978)). “[A]n open account must
contain a ‘final and certain agreement on price.’” Douglas Parker Elec. Inc. v. Miss. Design
& Dev. Corp., 949 So. 2d 874, 877 (¶8) (Miss. Ct. App. 2007) (quoting McLain v. W. Side
Bone & Joint Ctr., 656 So. 2d 119, 123 (Miss. 1995)). Our supreme court has recognized
that “a collection for recovery, on an open account, amounts to a collection action where the
debt is based on a series of credit transactions.” Franklin Collection Serv. Inc. v. Stewart,
863 So. 2d 925, 930 (¶14) (Miss. 2003). In an open-account action, the date of purchase,
the kind of goods, the quantity, and the price must be shown. Motive Parts Warehouse Inc.
v. D&H Auto Parts Co., 464 So. 2d 1162, 1165 (Miss. 1985) (citation omitted).
¶14. Knights argues that in order for it to owe Gulfstream under the open account, there
must have been work performed as part of a series of transactions between the parties.
Knights contends that Gulfstream provided no evidence of any work performed by the vessel
or any expenses incurred from September 30 through December 5, 2010. Moreover,
Knights claims there was no contract or “standby rate,” but merely a purchase order
indicating the $2,400-per-day rate. David Knight testified even if there were a standby rate,
7
it would generally be one-third to one-half the daily rate. Knights contends Gulfstream’s
invoices are fraudulent because Gulfstream cannot show it worked during this time-frame.5
¶15. Undisputably, Will testified that there were “definitely standby days” when the
weather was unsafe, or the boat needed maintenance. However, he claimed the standby rate
was the same as the day rate, because Gulfstream could not use the boat for any other job
– it had to be ready to work for USES. Greg also affirmed this point, but admitted that there
was nothing in writing about a “standby rate” – it was just a “default understanding.”
¶16. The daily captain’s logs entered into evidence also show periods of time when the
vessel was not actively working on the cleanup project. From July 2010 until the end of
September 2010, Gulfstream’s daily logs are very detailed about the vessel’s numerous
activities. However, from September 30 to October 9, 2010, the log shows “foul weather”
and “preventative maintenance was performed during downtime.” During this period Will
testified that the boat was in dry storage being sandblasted but claimed the vessel could be
back in the water in less than an hour for use. Will stated that Gulfstream coordinated with
USES’s schedule to make sure its maintenance did not interfere with any possible work –
when USES put Gulfstream on standby, Gulfstream would do the maintenance, so it “never
missed a lick.”
¶17. Will testified that from October 31 through December 5, 2010, Gulfstream was not
performing any tasks for USES, but was on standby status. During this period, the daily
captain’s logs had the same entry: “continued support” for transporting supplies to the
5
Knights did not raise fraud as an affirmative defense under Mississippi Rule of Civil
Procedure Rule 8(c).
8
various barrier islands. Gulfstream contends it was obligated to have the vessel available
should USES need it; thus, the vessel was not available for any other entity, and Gulfstream
was owed payment for these days. Gulfstream further claimed the vessel was always
available seven days a week for twelve hours per day for USES. However, Knights argues
that this availability was merely a business decision on Gulfstream’s part. Yet neither USES
nor Knights had any complaints about Gulfstream’s performance or availability on the
project.
¶18. As the circuit court noted, whether or not Gulfstream performed the work is a
question for the fact-finder (here the county court), and does not change the legal status of
the relationship. Gulfstream’s invoices to Knights do not specify a standby rate or any
exclusions.6 We agree. Gulfstream presented substantial evidence that it was hired to
provide a vessel whether work was performed or not, and it could not perform work for
another entity while obligated to USES’s projects. Moreover, Knights’s equipment-rental
worksheets, provided to USES, showed the “eight-hour day rate” was the same as the
“standby rate” – $2,900. Greg testified the boat was available, whether in service or on
6
Knights supplemented its authority after oral argument under Mississippi Rule of
Appellate Procedure 28(k), citing Stanton & Associates Inc. v. Bryant Construction Co., 464
So. 2d 499, 503 (Miss. 1985), for the proposition that unless there is a price agreement
between the parties, the claim for funds is unliquidated and does not meet the itemization
standards to qualify as an open account. Applied to this case, Knights suggests that because
there was no price understanding for a standby rate, as there was for the daily rate, there was
no “meeting of the minds” and thus no open account for standby charges. Yet Knights also
maintains that USES never authorized a standby rate for Gulfstream. We find Stanton
distinguishable; in that case, it was undisputed that there was never a price agreement, unlike
here, where the daily rate of $2,400 was agreed upon by both parties for providing the
vessel.
9
standby, for approximately 150 days, for no more than twelve hours per day. At oral
argument, Gulfstream’s counsel likened the usage of the vessel to a lease. Further, the
evidence on the captain’s logs was not clear as to which days were worked, but regardless,
Gulfstream was hired to provide a vessel with a crew, not to perform tasks.
¶19. Based upon the evidence, we cannot say the county court abused its discretion in
awarding Gulfstream compensatory damages of $143,881.01.
CROSS-APPEAL
II. Pre-Judgment Interest
¶20. The county court awarded Gulfstream $10,122.92 in pre-judgment interest, at eight
percent per annum. Gulfstream argues that the county court erred in calculating the interest
from the date Gulfstream filed its complaint, instead of the date Knights breached the
unwritten contract. It also claims that the circuit court erred in finding the claim was not
liquidated before judgment. We affirm the county court’s award of pre-judgment interest
to Gulfstream, but remand for its computation from the date Knights failed to pay the
purchase-order invoices.
¶21. Interest on judgments is governed by Mississippi Code Annotated section 75-17-7
(Rev. 2016):
All judgments or decrees founded on any sale or contract shall bear interest
at the same rate as the contract evidencing the debt on which the judgment or
decree was rendered. All other judgments or decrees shall bear interest at a
per annum rate set by the judge hearing the complaint from a date determined
by such judge to be fair but in no event prior to the filing of the complaint.
Open accounts are a form of contract. “Suits on open account[s] are always contractual
10
matters, because an underlying contract must exist for the open account to exist. . . . ‘[A]n
open account is an unwritten contract.’” Lyons & Assocs. P.A. v. v. Precious T. Martin Sr.
& Assocs. PLLC, 87 So. 3d 444, 453-54 (¶33) (Miss. 2012) (quoting McArthur v. Acme
Mech. Contractors Inc., 336 So. 2d 1306, 1308 (Miss. 1976)). An award of pre-judgment
interest is not rationally made “where the principal amount has not been fixed prior to
judgment.” Stanton & Assoc. Inc. v. Bryant Constr. Co., 464 So. 2d 499, 504 (Miss. 1985).
¶22. Here, the parties were operating under an open account, a type of unwritten contract;
thus, Gulfstream should be granted pre-judgment interest if Knights’s debt was liquidated.
We disagree with the circuit court’s finding that it was not. A debt is liquidated when it is
“agreed on by the parties, readily determinable or fixed by operation of the law.” Johnny
C. Parker, Mississippi Law of Damages § 4:1 (3d ed. 2014) (citing Woodmansee v. Garrett,
247 Miss. 148, 153 So. 2d 812 (1963)). The invoices and financial documents entered into
evidence all indicate Knights’s liability as $143,881.01– the disputed issue is whether the
amount was owed at all. This situation is similar to T.C.B. Construction Co. v. W.C. Fore
Trucking Inc., 134 So. 3d 701, 705 (¶13) (Miss. 2013), where unpaid invoices – not the
amount of the unpaid invoices – constituted the liability for breach of contract, and were
thus considered liquidated. In T.C.B., Fore Trucking entered into a contract with T.C.B. to
remove debris north of Highway 53 after Hurricane Katrina. Id. at 702-03 (¶2). Later,
T.C.B. performed debris removal south of Highway 53 as well at the request of Fore’s
principal, but Fore refused to pay, as this work “was not contemplated by the contract.” Id.
at 703 (¶4). Evidence surfaced that Fore had submitted T.C.B.’s invoices to Harrison
11
County and been paid in full for all debris removal – at a total of $12.3 million. Id. After
a jury trial, T.C.B. was awarded compensatory damages, but the circuit court awarded
prejudment interest from the date the complaint was filed. Id. at (¶6). This Court reversed
on that issue, awarding interest from the date of breach, and the Mississippi Supreme Court
affirmed us in that regard. Id. at (¶7), 706 (¶15).
¶23. In the instant case, the same principles apply. We affirm the grant of pre-judgment
interest, but reverse as to the date pre-judgment interest begins and remand to the circuit
court for a calculation of pre-judgment interest from the date the breach occurred.
III. Punitive Damages
¶24. Gulfstream argues that the county court’s denial of punitive damages was error
because Knights deliberately delayed or withheld payment from Gulfstream; specifically,
Gulfstream contends that Knights’s conduct was malicious because it withheld a percentage
of payments from Gulfstream’s invoices, even though USES had paid Knights the full
amount. In 2012, Knights requested Gulfstream take a ten-to-twenty-percent discount from
the balance owed because BP did not pay USES all of the retainer being held; thus, USES
and Knights did not receive full payment for the invoices.
¶25. An award of punitive damages is within the discretion of the trier of fact. Bar-Til Inc.
v. Superior Asphalt Inc., 164 So. 3d 1028, 1031 (¶14) (Miss. Ct. App. 2014).
An award of punitive damages is an extraordinary remedy, reserved for the
most egregious cases, and designed to discourage similar misconduct. In a
breach of contract case, the plaintiff “must prove that the breach was the result
of an intentional wrong or that a defendant acted maliciously or with reckless
disregard of the plaintiff’s rights.”
12
T.C.B., 134 So. 3d at 704 (¶9) (internal and end citations omitted). In determining whether
punitive damages are appropriate, the judge “decides whether, under the totality of the
circumstances and viewing the defendant’s conduct in the aggregate, a reasonable,
hypothetical trier of fact could find either malice or gross neglect/reckless disregard.” Bar-
Til, 164 So. 3d at 1031 (¶14) (quoting Ciba-Geigy Corp. v. Murphree, 653 So. 2d 857, 863
(Miss. 1994)).
¶26. Here, the trier of fact was the county-court judge, who denied punitive damages. The
circuit court, in affirming the county court, cited Dynasteel Corp. v. Aztec Industries Inc.,
611 So. 2d 977, 985 (Miss. 1992), for the proposition that in open-account cases, it would
be rare to find the “intentional wrong, insult, abuse, or such gross negligence,” as could be
found in a traditional breach-of-contract case. In that case, the Mississippi Supreme Court
said:
[M]ore often than not the failure to pay has more to do with inability to do so
rather than obstinance. We have been unable to find any precedent for an
award of punitive damages on an open account case. It would be the rarest of
occasions that such an award would be proper.
Id.
¶27. The county court’s denial of punitive damages was proper. The trier of fact could
easily have found that Knights did not act with a sufficient level of malice to warrant them.
Knights paid Gulfstream $252,782.85 of the $396,654.86 Gulfstream billed. Knights was
taking a reduction in funds received from USES because USES was taking a reduction from
BP, not to mention the delay in payments due to BP’s auditing procedure. The record
indicates Knights attempted to negotiate a settlement with Gulfstream starting in July 2012
13
through April 2013, and was nearly successful until Gulfstream insisted the offer of
$129,492.92 be paid within ten days. We cannot find that the county court erred in denying
punitive damages.
IV. Garnishments and Supersedeas Bond
¶28. Gulfstream argues that the county court erred in ordering Knights’s funds,
successfully garnished by Gulfstream, to be deposited in the court registry in lieu of
Knights’s posting a supersedeas bond, and also in later denying the funds’ disbursement to
Gulfstream.
[T]he general purpose of the supersedeas bond is to effect absolute security
to the party affected by the appeal. . . . The amount of a supersedeas bond
should be sufficient to protect the appellee in his judgment. . . . The bond is
the typical means of giving the appellee security. However, the [c]ourt may
approve security in the form of cash or property.
Tupelo Redev. Agency v. Gray Corp., 972 So. 2d 495, 524 (¶91) (Miss. 2007) (emphasis
added) (citation omitted). The supersedeas bond should be in the amount of 125% of the
judgment. M.R.A.P. 8(a); URCCC 5.08. To stay the execution of judgment, “[t]he court
shall require the giving of security by the appellant in such form and in such sum as the court
deems proper . . . .” M.R.A.P. 8(b)(1). “The trial court . . . may approve security in the form
of a cash or property bond.” M.R.A.P. 8 cmt. The standard of review regarding the posting
of a supersedeas bond is abuse of discretion.7 Section 11-35-23(1) of the Mississippi Code
7
Professor Jeffrey Jackson’s treatise, Mississippi Civil Procedure, states:
Although the Mississippi Supreme Court has yet to address the particular
standard of review applicable to a trial court’s ruling on the posting of a
supersedeas bond, several other states have addressed the issue. These courts
have generally held that “the standard for reviewing the sufficiency of a
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Annotated (Rev. 2004) provides that “any indebtedness of the garnishee to the defendant,
except for wages . . . , shall be bound from the time of the service of the writ of garnishment,
and be appropriable to the satisfaction of the judgment or decree . . . .” In a letter opinion
issued in 1992, the Mississippi Attorney General advised that “all garnishment monies
should be paid into the court before they are disbursed to the judgment creditor.” Miss.
Att’y Gen. Op., 1992 WL 613986, Tate (June 3, 1992).8
¶29. On July 10, 2014, the county court ordered a stay of execution on the judgment until
July 16, 2014. Knights had not posted a supersedeas bond by that date, and Gulfstream
began garnishing Knights’s assets at numerous financial institutions, which successfully
yielded $205,813.07. On July 22, 2014, the county court ordered the attached funds to be
deposited in the Jackson County Circuit Court registry to replace the bond requirement,
which was $204,098.34.9 On August 12, 2014, Gulfstream moved the court to disburse
Knights funds from the registry, but it was denied.
¶30. It is undisputed that Knights never obtained a supersedeas bond. However, here, the
supersedeas bond is abuse of discretion.”
2 Jeffrey Jackson et al., Mississippi Civil Procedure § 19:26 (2016) (discussing Mississippi
Rule of Civil Procedure 62 stay of proceedings to enforce a judgment).
8
This opinion is in accord with the statute as section 11-35-23(5) provides that “[t]he
circuit clerk may, in his or her discretion, spread on the minutes of the county or circuit
court, as the case may be, an instruction that all garnishment defendants shall send all
garnishment monies to the attorney of record[.]” Here, there is no indication that the clerk
had entered such an instruction.
9
The county court specifically stated: “Once cash or checks have been tendered to
the Circuit Clerk totaling 125% of the judgment (presently $204,098.34), those funds shall
act as a supersedeas bond until further order of this Court.”
15
county court’s requiring the garnished funds be deposited in the court registry had the same
effect as a supersedeas bond – to provide absolute security to Gulfstream. The amount
deposited was approximately $1,700 more than the 125%-of-the-judgment bond
requirement. As the circuit court and Knights remarked, Gulfstream is probably more secure
with the cash deposit than the bond. Additionally, Rule 8(b) allows the court to create
judgment security “in such a form and in such a sum as the court deems proper.” The
garnishment statute allows for garnished funds to be used to satisfy a judgment under court
order. Therefore, we cannot find the county court abused its discretion in ordering the funds
be deposited in the court registry in lieu of a supersedeas bond, or denying immediate
disbursement of these funds.
V. Post-Judgment Attorney’s Fees
¶31. Gulfstream requests attorney’s fees and costs for its post-judgment collection efforts
and this appeal. Under the open-account statute, a defendant “shall be liable for reasonable
attorney’s fees to be set by the judge for the prosecution and collection of such claim when
judgment on the claim is rendered in favor of the plaintiff.” Miss. Code Ann. § 11-53-81.
We find it reasonable to award Gulfstream its attorney’s fees for post-judgment collection
efforts that resulted in the garnishments. Further, we find that Gulfstream’s attorney’s fees
in defending the appeal would be proper under the statute; our usual practice in such
instances is to award fees equal to “one-half of what was awarded in the trial court.” See
Bailey v. Chamblee, 192 So. 3d 1078, 1083 (¶16) (Miss. Ct. App. 2016) (citation omitted).
We grant one-half of the attorney’s fees and expenses awarded to Gulfstream by the circuit
16
court, and remand to the circuit court for a calculation of those fees and of the attorney’s fees
for post-judgment collection efforts.
¶32. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS
AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS
OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT/CROSS-
APPELLEE AND ONE-HALF TO THE APPELLEE/CROSS-APPELLANT.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR,
WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.
17