Davenport v. Hansaworld, USA, Inc.

212 So.3d 767

Kimberlee DAVENPORT

v.HANSAWORLD, USA, INC.

NO. 2015–CA–01164–SCT

Supreme Court of Mississippi.

January 19, 2017

Rehearing Denied March 23, 2017

DANIEL MYERS WAIDE, ATTORNEY FOR APPELLANT

RICHARD MONTAGUE, W. THOMAS SILER, JR., JASON THOMAS MARSH, ATTORNEYS FOR APPELLEE

BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.

COLEMAN, JUSTICE, FOR THE COURT:

¶ 1. HansaWorld USA, Inc. (HansaWorld) enrolled a foreign judgment in the Forrest County Circuit Court against Kimberlee Davenport from an award ordered by a court in Florida on claims of conversion and extortion. Davenport, a former employee of HansaWorld, also maintained claims against HansaWorld in a separate action before a federal district court in Mississippi alleging several violations of state and federal law, including Title VII of the Civil Rights Act for sexual harassment and discrimination (Employment Action).

¶ 2. HansaWorld sought to collect on its foreign judgment by petitioning the circuit court to sell Davenport's Employment Action, so the circuit court entered a Writ of Execution. With the Employment Action set to be auctioned off by the Forrest County sheriff, Davenport filed an Emergency Motion to Quash Writ of Execution mere days before the scheduled sale. At a hearing on the motion, the circuit court granted Davenport's motion to quash on the condition that she post a $100,000 bond by that afternoon, the day of the scheduled sheriff's sale. Davenport failed to post the conditional bond, and as a result, the sheriff sold her Employment Action to the highest bidder, HansaWorld, for $1,000. Following sale of her Employment Action, Davenport appealed to the Court.

FACTS AND PROCEDURAL HISTORY

¶ 3. On January 13, 2015, the Eleventh Judicial Circuit in Miami–Dade, Florida, entered a judgment against Kimberlee Davenport in favor of her former employer HansaWorld USA, Inc., on claims of conversion and extortion. In total, Davenport was ordered to pay HansaWorld $265,719.45. At the same time as the preceding litigation, Davenport maintained claims against HansaWorld in the United States District Court for the Southern District of Mississippi alleging several violations of state and federal law, including Title VII of the Civil Rights Act for sexual harassment and discrimination (Employment Action). To further collection of the enrolled judgment, HansaWorld petitioned the Forrest County Circuit Clerk to enter a Writ of Execution of Enrolled Judgment, and the circuit clerk issued the writ, notifying the Forrest County sheriff to auction off Davenport's Employment Action in a sheriff's sale.

¶ 4. Before the sheriff's sale could commence, Davenport filed for Chapter 13 bankruptcy relief in Texas, which placed an automatic stay on collection by all of her creditors, including HansaWorld. However, Davenport failed to appear at several bankruptcy proceedings, so the court dismissed her claim. Following the dismissal, the circuit clerk entered an Alias Writ of Execution of Enrolled Judgment in a second attempt to auction off Davenport's Employment Action in a sheriff's sale scheduled for July 13, 2015.

¶ 5. On July 7, 2015, Davenport filed an Emergency Motion to Quash Writ of Execution. In her motion to quash, Davenport argued that, due to the nature of the claims she was making, the court should not allow her Employment Action to be sold because doing so would violate her constitutional rights. Davenport also argued that her Title VII claim should not be sold because the statute did not allow it, and the court would be going against public policy by selling a person's civil actions. The circuit court scheduled a hearing on the motion to quash for July 13, 2015, the intended day of the sheriff's sale.

¶ 6. In response to Davenport's Emergency Motion, HansaWorld argued in brief and at the hearing that the employment action was Davenport's property right, not a civil right, so it could be sold at a sheriff's sale. HansaWorld supported its argument by stating that her claims were under Title VII, which confers statutory rights, not constitutional rights. HansaWorld also requested that the circuit court require Davenport to pay a bond if it granted the motion to quash because allowing a stay of the sheriff's sale essentially was a temporary injunction.

¶ 7. At the hearing, the court granted the motion to quash but conditioned the grant on Davenport posting a $100,000 bond by two o'clock that afternoon or else the sheriff's sale would proceed as scheduled. Davenport's counsel did not object to the conditional bond at the hearing.¹ On the same day, the circuit court issued its Order Granting Emergency Motion to Quash Alias Writ of Execution Conditioned On Posting of $100,000 Bond and within it stated:

After considering the pleadings and the arguments and representations of counsel, the court finds that the emergency motion to quash the alias writ of execution shall be and hereby is granted, conditioned on the posting of a bond by Davenport in the amount of $100,000.

IT IS THEREFORE HEREBY ORDERED that if Davenport posts with the Clerk of this Court a bond in the amount of $100,000, the alias writ of execution will be quashed and the sheriff's sale of Davenport's chose in action against Hansaworld scheduled for 2:00 p.m. July 13, 2015, shall be stayed.

IT IS FURTHER HEREBY ORDERED that if Davenport fails to post with the Clerk of this Court a bond in the amount of $100,000, before 2:00 p.m. July 13, 2015, the alias writ of execution will not be quashed and the sheriff's sale of Davenport's chose in action against Hansaworld scheduled for 2:00 p.m. July 13, 2015 shall proceed as scheduled.

¶ 8. After Davenport failed to post the conditional bond, the circuit court allowed the sheriff's sale to proceed, and the sheriff sold Davenport's Employment Action to the highest bidder, HansaWorld, for $1,000. Davenport filed a Notice of Appeal on July 31, 2015.

ANALYSIS

I. Whether the circuit court's order granting the motion to quash was a final judgment.

¶ 9. In its brief, HansaWorld raised the issue of the Court's jurisdiction to hear the present appeal because, according to HansaWorld, there has not been a final judgment in the matter. Regardless of whether the appellant, appellee, or neither raises a jurisdictional issue, the Court is required to consider its own jurisdiction. Smith v. Parkerson Lumber, Inc. , 890 So.2d 832, 834 (¶ 12) (Miss. 2003) (citing Michael v. Michael , 650 So.2d 469, 471 (Miss. 1995) ).

¶ 10. "Whether the circuit court had proper jurisdiction to hear a particular matter is a question of law" so "this Court must apply a de novo standard of review." Burch v. Land Partners, L.P. , 784 So.2d 925, 927 (¶ 7) (Miss. 2001). In consideration of jurisdiction, the Court may question only a final, appealable judgment or that which "adjudicates the merits of the controversy and settles all issues as to all the parties and requires no further action by the trial court." Brown v. Collections, Inc. , 188 So.3d 1171, 1174 (¶ 11) (Miss. 2016). Based upon the facts of the present case, we hold that the circuit court's order granting Davenport's motion to quash the writ of execution is a final, appealable judgment. We can discern no other actions for the circuit court to take in the case and the parties have not identified any other issues that were not settled by the circuit court's order.

II. Whether the circuit court abused its discretion in conditioning the grant of the motion to quash on Davenport posting a $100,000 bond .

¶ 11. Davenport argues that circuit court abused its discretion in ordering the conditional bond because it serves no purpose. HansaWorld disagrees and asserts that Davenport did not object to the bond at the hearing, so she cannot raise the present issue for the first time on appeal. Also, HansaWorld argues that the circuit court was well within its discretion to condition the quashing on a bond because the bond was security for a request of injunctive relief pursuant to Mississippi Rule of Civil Procedure 65(c). The order as well as the transcript are silent as to the court's reasoning for conditioning the quash on the posting of a $100,000 bond.

¶ 12. "The well-recognized rule is that a trial court will not be put in error on appeal for a matter not presented to it for decision." Harrington v. Office of Mississippi Secretary of State , 129 So.3d 153, 169 ( ¶ 41) (Miss. 2013) (internal quotation marks omitted). Consequently, if the Court finds that Davenport did not present the present matter in the circuit court, then "the [present] issue is not properly before the Court," and the case should be dismissed as a result. Id.

¶ 13. HansaWorld correctly asserts that it asked the court, both in brief and at the hearing, to condition any relief given to Davenport on the posting of a bond, pursuant to Mississippi Rule of Civil Procedure 65(c). Davenport neither wrote a response brief to HansaWorld's objection to the motion to quash nor did she object at the hearing when the judge stated he was going to grant the motion to quash but require that she post a $100,000 bond. Davenport urges that she had no reason to respond to the requirement that she post a bond because she was requesting permanent relief—that the writ be quashed forever—negating the need for the bond. However, we are not convinced that Davenport properly preserved her right to raise the argument on appeal solely because the circuit court did or did not grant the type of relief she requested. Since Davenport never challenged the imposition of the bond below, the...