                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2002-IA-00099-SCT

BRIGGS & STRATTON CORPORATION,
AUTOMOTIVE ELECTRIC CORPORATION d/b/a
ENGINE POWER DISTRIBUTORS, RICK
HIGGINBOTTOM d/b/a H & H SMALL ENGINE
REPAIR AND MIKE HIGGINBOTTOM

v.

JOHNNY SMITH d/b/a HOUSTON SALES AND
SERVICE

DATE OF JUDGMENT:                       12/27/2001
TRIAL JUDGE:                            HON. JOHN C. ROSS, JR.
COURT FROM WHICH APPEALED:              TISHOMINGO COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS:               B. WAYNE WILLIAMS
                                        LEE ALEXANDER DURRETT
                                        JAMES MICHAEL TUTOR
                                        MICHAEL FRANCIS RAFFERTY
                                        GEORGE T. WHEELER, JR.
ATTORNEYS FOR APPELLEE:                 RICHARD PAUL JOHNSON
                                        JENNIFER INGRAM WILKINSON
                                        CARROLL INGRAM
                                        MARCUS ALFRED TREADWAY
                                        GARY L. CARNATHAN
NATURE OF THE CASE:                     CIVIL - CONTRACT
DISPOSITION:                            REVERSED AND REMANDED - 09/25/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



      EN BANC.

      McRAE, PRESIDING JUSTICE, FOR THE COURT:

¶1.   Defendants Briggs & Stratton Corp., Automotive Electric Corp d/b/a Engine Power

Distributors, Rick Higginbottom d/b/a H & H Small Engine Repair, and Mike Higginbottom
seek review by interlocutory appeal of a Tishomingo County Chancery Court order denying

their Joint Motion to Transfer this action to the Circuit Court of Tishomingo County. After

reviewing the chancery court's order, this Court finds jurisdiction for this action is not proper

in the chancery court. The order of the chancery court is reversed, and the case is remanded

to the chancery court for a prompt transfer to the Circuit Court of Tishomingo County.

                         FACTS AND PROCEDURAL HISTORY

¶2.    On April 17, 2001, Johnny Smith, owner and operator of Houston Sales and Service,

filed this suit in the Chancery Court of Tishomingo County against defendants Briggs &

Stratton Corp., Automotive Electric Corp. d/b/a Engine Power Distributors, Rick

Higginbottom d/b/a H & H Small Engine Repair, and Mike Higginbottom. The complaint

contains eight counts which included (1) Count I Breach of Contract by Briggs and Engine

Power; (2) Count II Tortious Breach of Contract by Briggs and Engine Power; (3) Count III

Tortious Contractual Interference with Present Business Contractual Relationships by Briggs

and Engine Power; (4) Count IV Tortious Contractual Interference with Prospective Business

Contractual Relationships by Briggs and Engine Power; (5) Count V Breach of Implied Duty

of Good Faith and Fair Dealing by Briggs and Engine Power; (6) Count VI Conspiracy to

Terminate by Briggs, Engine Power, H & H, Rick Higginbottom, and Mike Higginbottom; (7)

Count VII Gross Negligence by Briggs, Engine Power, H & H, Rick Higginbottom, and Mike

Higginbottom, and (8) Count VIII Entitlement to an Accounting Due to Briggs's Accusations

of Improper Use of Inventory of Repair Parts.

¶3.    On June 18, 2001, defendants Briggs, Engine Power, and Mike Higginbottom filed a

Joint Motion to Transfer. In their motion they argued that the chancery court did not have


                                               2
jurisdiction over the matters in this cause because essentially the plaintiff was alleging breach

of contract for which jurisdiction lies in the circuit court. The motion alleged that the circuit

court was the only proper forum for which a jury trial and punitive damages could be requested.

In support of their motion they submitted to the court the case of Burnette v. Hartford

Underwriters Ins. Co., 770 So.2d 948 (Miss. 2000). The August 17, 2001, plaintiff's

response to the Motion to Transfer argued that a valid claim for an accounting had been

asserted; therefore the chancery court had proper jurisdiction over the cause. On August 22,

2001, Rick Higginbottom joined in the motion to transfer.

¶4.    A hearing on the motion was held on August 20, 2001.              During the hearing the

defendants cited Southern Leisure Homes, Inc. v. Hardin, 742 So.2d 1088 (Miss. 1999).

They argued that the facts in Southern Leisure are essentially the same as the case sub judice

and that there this Court found that the plaintiffs' attempts to secure equity jurisdiction were

fraudulent and therefore, the cause was proper only in circuit court. The defendants argued

that their right to a jury trial can only be guaranteed in circuit court. They argued that, despite

the one equity count, the complaint predominately asserts legal claims which are best suited

for circuit court. They stated that "the allegation for an accounting really is not an accounting

in the sense that the Chancery Court would normally apply in an accounting." The defendants

argued that the plaintiff's reliance on Crowe v. Smith, 603 So.2d 301 (Miss. 1992), is

misplaced.

¶5.    During the hearing the plaintiff argued that his claim for an accounting is justified as

"the cancellation of the Authorized Service Agreement was over some discrepancy as to parts

inventory under a warranty . . . [and] the dispute seems to center on allegations by Briggs and

                                                3
Engine Power that my client misused, misappropriated, did something with the inventory not

per the Authorized Service Dealer Agreement." The plaintiff argued that the accounting claim

is essential to the other legal claims as it "bolster[s] [the] claim that he did nothing outside the

warranty agreement – the Service Dealer Agreement, which would breach that agreement; and,

therefore, would put Briggs and Engine Power in the place of illegally and improperly

cancelling that agreement causing him injury."

¶6.    On November 29, 2001, the Chancellor issued an order denying the motion to transfer

and stating that "pursuant to Miss. Code § 9-5-81 and Const. art. 6, § 159, the Chancery Court

has the authority to hear cases for an accounting."        On January 8, 2002, the Chancellor

certified that order for interlocutory appeal and stayed the proceedings pending the outcome

of the appeal. On June 7, 2002, this Court granted the defendants' request for interlocutory

appeal. See. M.R.A.P. 5.

                               STATEMENT OF THE ISSUES

       I.      DID THE CHANCERY COURT ERR IN DENYING THE
               DEFENDANTS' JOINT MOTION TO TRANSFER THIS MATTER
               TO THE CIRCUIT COURT OF TISHOMINGO COUNTY,
               MISSISSIPPI?

               A.      DID THE PLAINTIFF FAIL TO ALLEGE A TRUE CLAIM
                       FOR AN ACCOUNTING?

               B.      DID THE RETENTION OF THIS CAUSE BY THE
                       CHANCERY COURT DENY THE DEFENDANTS OF THEIR
                       CONSTITUTIONALLY PROTECTED RIGHT TO A TRIAL
                       BY JURY?

               C.      DID THE PLAINTIFF'S REQUEST FOR PUNITIVE
                       DAMAGES CREATE A CAUSE FOR REMOVAL TO THE
                       CIRCUIT COURT?



                                                 4
                                 STANDARD OF REVIEW

¶7.    Defendants argue that the applicable standard of review is de novo. They cite Burnette

v. Hartford Underwriters Ins. Co., 770 So.2d 948, 950 (Miss. 2000). Plaintiff argues that the

applicable standard of review is abuse of discretion. He cites Stubbs v. Miss. Farm Bureau

Casualty Ins. Co., 825 So.2d 8 (Miss. 2002). Since there is conflict as to which standard of

review applies, it is necessary to clear up any confusion.

¶8.    The plaintiff mistakenly relies on Stubbs. In Stubbs, this Court addressed the proper

standard of review for motions to transfer venue. Id. The case sub judice addresses a motion

to transfer from chancery court to circuit court based on the chancery court's lack of

jurisdiction over the subject matter. Stubbs did not address the applicable standard of review

for this type of motion to transfer.

¶9.    The defendants correctly rely on Burnette. InBurnette, this Court addressed the proper

standard of review for a motion to transfer based on lack of jurisdiction. 770 So.2d at 950-51.

This Court stated that:

              Jurisdiction is a question of law. Entergy Miss., Inc. v. Burdette Gin
              Co., 726 So.2d 1202, 1204-05 (Miss. 1998). This Court reviews
              questions of law de novo. See Saliba v. Saliba, 753 So.2d 1095, 1098
              (Miss. 2000).

770 So.2d at 950. More recently, this Court in United States Fidelity & Guaranty Co. v.

Estate of Francis, 825 So.2d 38 (Miss. 2002), reviewed a Chancellor's denial of a motion to

transfer. Since the Chancellor's order denying a motion to transfer from chancery court to




                                              5
circuit court due to lack of jurisdiction involved a question of law, this Court applied de novo

review. Id. at 43-44.

                                        DISCUSSION

       I.     DID THE CHANCERY COURT ERR IN DENYING THE
              DEFENDANTS' JOINT MOTION TO TRANSFER THIS MATTER
              TO THE CIRCUIT COURT OF TISHOMINGO COUNTY,
              MISSISSIPPI?

¶10.    It is clear that this Court has not drawn a bright line concerning equity and law

jurisdiction, particularly from 1956 to the present. However, this case clearly indicates that

this was a question of law and not a question of equity and that the chancery court erred in not

transferring, as will be discussed below .

              A.        DID THE PLAINTIFF FAIL TO ALLEGE A TRUE CLAIM FOR
                        AN ACCOUNTING?

¶11.   The defendants argue that the plaintiff's complaint does not request a true accounting.

They argue that the plaintiff is seeking exoneration from allegations that he misused parts and

inventory. This is not a request for an accounting. Since the plaintiff's request for an

accounting is a mask for asserting chancery court jurisdiction, Tillotson v. Anders, 551 So.2d

212 (Miss. 1989), is directly on point and supports the transfer of this cause to circuit court.



¶12.   The plaintiff argues that the request for an accounting is essential to the allegations in

the complaint. He argues that in order to prove that his termination was in bad faith, he must

show through an accounting that he did not misuse parts and inventory which is the alleged

reason his contract was terminated. The plaintiff argues that under Crowe v. Smith, 603 So.2d

301 (Miss. 1992), Miss. Code Ann. § 9-5-81 (Rev. 2002), and Miss. Const. art. 6, § 159

                                               6
(1890), the chancery court is the only court which may hear a case for an accounting. ¶13.

       This Court in State ex rel. King v. Harvey, 214 So.2d 817 (Miss. 1968), gave a

comprehensive definition for an accounting. Id. at 819-20. This Court stated that:

       An accounting is by definition a detailed statement of the debits and credits
       between parties arising out of a contract or a fiduciary relation. It is a statement
       in writing of debts and credits or of receipts and payments. Thus an accounting
       is an act or a system of making up or settling accounts, consisting of a statement
       of the account with debits and credits arising from the relationship of the
       parties. Black's Law Dictionary 34-36 (4th Ed. 1957). . . . "It implies that one
       is responsible to another for moneys or other things, either on the score of
       contract or of some fiduciary relation, of a public or private nature, created by
       law, or otherwise." Miller v. Henry, 139 Miss. 651, 665, 103 So. 203, 204
       (1925)

214 So.2d at 819-20. An accounting has traditionally been a tool used by a plaintiff against a

defendant. In the case sub judice, the plaintiff attempts to initiate an accounting against

himself. It is a mere disguise for what really could be accomplished through discovery.

¶14.   The plaintiff argues that, in order to prove the allegations in his complaint, he needs an

accounting to show that the cancellation of his contract was in bad faith because he did not

misuse inventory and parts as alleged. There is no demand for information, which is essentially

what an accounting calls for. Here, the plaintiff has the information. He does not need an

accounting in order to present such information to the court. If he is seeking to obtain order

forms and shipping records to corroborate his theory, he can demand these items from the

defendants during discovery.

¶15.   The demand for an accounting is a mask to assert chancery court jurisdiction as it was

in Tillotson, where this Court found that "[i]t is the substance of the action that should be

controlling on this issue, not its form or label." 551 So.2d at 214 (quoting Thompson v. First


                                                7
Miss. Nat'l Bank, 427 So.2d at 976 (Miss. 1983)). Our lower courts should "be wary of

attempts to camouflage as a complicated accounting what is in essence an action at law for

breach of contract." Id. (quoting Thompson, 427 So.2d at 976).

¶16.     Since all other allegations of the complaint allege actions at law, the circuit court is the

proper jurisdiction under Miss. Const. art. 6, § 156 and Miss. Code. Ann. § 9-7-81 (Rev.

2002).

                B.      DID THE RETENTION OF THIS CAUSE BY THE
                        CHANCERY COURT DENY THE DEFENDANTS OF THEIR
                        CONSTITUTIONALLY PROTECTED RIGHT TO A TRIAL
                        BY JURY?

¶17.     The defendants argue that they have been denied their right to a jury trial by the

Chancellor's failure to transfer the cause to the circuit court. Additionally, the plaintiff's

complaint even demands a jury trial. The defendants argue that since the chancery court is not

required to empanel a jury, they may be denied their right to a jury trial of which they would

be assured in circuit court. The plaintiff does not address this issue in his brief.

¶18.     Miss. Const. art. 3, § 31 (1890) provides, in pertinent part, that the "right of trial by jury

shall remain inviolate." The defendants argue that the only way they can be assured of a jury

trial is to be under the jurisdiction of the circuit court. This is true. In chancery court, the

right to a jury trial is only discretionary.

¶19.     In 1977, this Court in McLean v. Green, 352 So.2d 1312 (Miss. 1977), addressed the

right to a jury trial in chancery court. Id. at 1314. This Court found that:

         In Chancery Court, with some few exceptions, the right to a jury is purely within
         the discretion of the Chancellor, and if one is empaneled, its findings are totally
         advisory. Our constitution, Mississippi Constitution, § 31 (1890), provides that
         the right to trial by jury shall remain inviolative, but in this case, the chancellor's

                                                   8
        assumption of jurisdiction of this common law action has deprived the defendant
        of this right. . . . In Talbot & Higgins Lbr. Co. v. McLeod Lbr. Co., [147 Miss.
        186, 113 So. 433 (1927)], we held that where the Chancellor erroneously
        assumed jurisdiction of a common law action, the right to trial by jury had been
        taken away.

Id. Again in 1999, this Court in Southern Leisure, 742 So.2d 1088, found the Chancellor

erred by failing to transfer a cause to circuit court for a jury trial. This Court quoted McLean,

352 So.2d 1312, when finding that the defendant's right to a jury trial could not be guaranteed

in chancery court since the right to a jury trial in chancery court is only discretionary.

Southern Leisure, 742 So.2d at 1090.1

¶20.    By failing to transfer the cause to circuit court, the Chancellor denied the defendants

their right to a jury trial.

                C.      DID THE PLAINTIFF'S REQUEST FOR PUNITIVE
                        DAMAGES CREATE A CAUSE FOR REMOVAL TO THE
                        CIRCUIT COURT?


¶21.    Since we found that the chancery court erred in retaining jurisdiction, we need not

address this issue.

                                          CONCLUSION

¶22.    The Chancellor committed reversible error by failing to transfer this case to the Circuit

Court of Tishomingo County. The allegations of the complaint set out a cause of action at law


        1
            See also United States Fid. & Guar. Co. v. Estate of Francis, 825 So.2d 38 (Miss.
2002) (where this Court found the Chancellor to have committed error by failing to transfer the cause
to circuit court, but this Court was unable to reverse the Chancellor's final judgment due to Miss.
Const. art. 6, § 147 (1890)); Burnette v. Hartford Underwriters Ins. Co., 770 So.2d 948 (Miss.
2000) (where this Court found that the defendant was deprived of his right to a jury trial due to the
Chancellor's failure to transfer an uninsured motorist insurance benefits case to circuit court).


                                                   9
not in equity; therefore, the case is placed under the jurisdiction of the circuit court. The

Chancellor's denial of the defendants' motion to transfer denied them of their right to a jury

trial. The order of the Chancery Court of Tishomingo County denying the defendants' motion

to transfer is reversed, and this case is remanded to the Chancery Court for a prompt transfer

to the Circuit Court of Tishomingo County.

¶23.   REVERSED AND REMANDED.

     PITTMAN, C.J., SMITH, P.J., COBB AND CARLSON, JJ., CONCUR. WALLER
AND GRAVES, JJ., CONCUR IN RESULT ONLY. EASLEY, J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.




                                             10
