                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2012-CT-00763-SCT

WILLIE CROWELL

v.

ANNE BUTTS d/b/a MAGNOLIA WRECKER &
TOWING SERVICE AND FANI ATKINSON


                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                         04/12/2012
TRIAL JUDGE:                              HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   ANDREW ROSS WILSON
ATTORNEYS FOR APPELLEE:                   MICHAEL LEE DULANEY
                                          DANIEL SIDNEY DALE
NATURE OF THE CASE:                       CIVIL - OTHER
DISPOSITION:                              THE JUDGMENT OF THE COURT OF
                                          APPEALS IS AFFIRMED IN PART AND
                                          REVERSED IN PART. THE JUDGMENT OF
                                          THE HINDS COUNTY CIRCUIT COURT IS
                                          REVERSED AND REMANDED - 10/23/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       KING, JUSTICE, FOR THE COURT:

¶1.    In this replevin action, a tenant sued his landlord and a towing company, alleging

wrongful possession of several vehicles towed from the property he leased from the landlord.

The County Court of Hinds County granted the defendants’ motion for involuntary dismissal,

and also found that the landlord’s use of self-help was lawful. The Hinds County Circuit
Court affirmed. Finding that the plaintiff presented sufficient evidence to maintain the

replevin action, the Court of Appeals reversed and remanded the replevin action for a trial

de novo between the plaintiff and the towing company. It also found the landlord’s use of

self-help to be unlawful, and reversed and rendered that issue in favor of the plaintiff.

Because we find that both the trial court and the Court of Appeals improperly addressed the

issue of the landlord’s use of self-help, we reverse the judgments and remand the replevin

action to the trial court for a trial de novo.

                         FACTS AND PROCEDURAL HISTORY

¶2.    Most of the facts are taken from the Court of Appeals opinion.

       On December 21, 2009, Crowell entered a handwritten one-year lease
       agreement with Fani Atkinson for the rental of one acre of land and a metal
       building owned by Atkinson. The term of the lease was from January 1, 2010,
       to December 1, 2010. Crowell used the premises as an auto-repair shop. After
       Crowell became several months delinquent in his rent, Atkinson issued
       Crowell a notice of default on August 18, 2010. As of the date of the notice,
       Crowell owed $2,250 in past-due rent. The notice informed Crowell that he
       had until September 19, 2010, to clear his delinquency or vacate the property.
       The notice also provided that on September 18, 2010, all equipment on the
       premises would be towed and impounded, and Crowell would be denied access
       to the premises after that date.

       According to Crowell, he approached Atkinson on Friday, September 17,
       2010, and offered to give her $2,800 in cash to extinguish his delinquency, but
       Atkinson refused. However, Atkinson denies this allegation. Atkinson
       contacted Anne Butts of Magnolia Wrecker & Towing Service to remove
       thirty-seven vehicles from the premises in the early morning hours between
       midnight and 5 a.m. on Sunday, September 19, 2010. Butts towed all thirty-
       seven vehicles to her business establishment. After the vehicles were towed,
       Atkinson replaced the lock on the property gate with a new one. Later that day,
       Crowell arrived at the property and found that he had been locked out, and that
       all of his personal property, including the thirty-seven vehicles he claimed he
       rightfully possessed, had been removed.

       On October 12, 2010, Crowell filed a replevin action in the County Court of


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       Hinds County, naming Atkinson and Butts, d/b/a Magnolia Wrecker, as
       defendants.

Crowell v. Butts, 2012-CA-00763-COA, 2013 WL 6442149, at *1 (Miss. Ct. App. Dec. 10,

2013). On October 14, 2010, Crowell filed a Complaint to Enforce Right of Possession in

Realty in the County Court of Hinds County solely against Atkinson, alleging that her entry

onto the property and her removal of the vehicles were improper. On November 4, 2010, the

court entered an Agreed Order of Consolidation of the two cases. On January 4, 2011,

Crowell moved to sever the two cases, admitting that the proper venue for one of the cases

was in a different judicial district of Hinds County. The court granted severance on January

7, 2011, and a trial was held solely on the replevin action on May 3, 2011.

       A bench trial was held in county court on May 3, 2011. Crowell testified and
       called Atkinson and Butts as adverse witnesses. Atkinson claimed her reentry
       was lawful because Crowell was behind on his rent, and Butts claimed that she
       rightfully possessed the vehicles through a statutory lien for the unpaid
       towing/storage fees. Crowell countered that because Atkinson unlawfully
       ordered the vehicles towed, he should not have to pay the towing/storage fees.
       Crowell also sought to discuss Atkinson’s breach of the lease agreement.
       However, the trial court was informed that Crowell had a separate civil action
       pending against Atkinson and Butts covering all matters surrounding the lease
       agreement. Thus, the trial court declined to address those issues.

Crowell, 2013 WL 6442149, at *1.

¶3.    During Crowell’s testimony, he began to testify about Atkinson’s entry onto the

property. The defense objected to the “whole line of questions” as irrelevant, noting that the

defense had stipulated that Butts had the cars, and it was not relevant how they were

obtained. The court sustained the objection. Crowell continued to testify as to Atkinson’s

entry onto the property, and the defense then renewed the objection regarding relevance. The

court then ruled that “I’ve already ruled that the issue of how or why Mrs. Atkinson engaged

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people to re-enter that land is irrelevant to the issue of replevin.” The court then expressed

displeasure with Crowell’s counsel in continuing the line of questioning. Crowell’s counsel

then asked: “You ruled that she had the right to re-enter the property?” The court responded

“I’m ruling that she had the right to re-enter that property, and I’m ruling that the evidence

that you are trying to enter right now is absolutely irrelevant to this proceeding.”

¶4.     At the conclusion of Crowell’s case-in-chief, Atkinson and Butts moved for directed

verdict. The trial court granted the motion. Crowell appealed to the Hinds County Circuit

Court, which affirmed the county court’s decision. He then appealed to the Court of

Appeals. The Court of Appeals found that Crowell had presented sufficient evidence to

maintain his replevin action against Butts; thus the trial court’s dismissal was manifestly

erroneous. It thus reversed and remanded the issue for a trial de novo on the merits between

Crowell and Butts. The Court of Appeals also found that the trial court had the jurisdiction

to rule on the self-help “claim,” and then found that Atkinson’s use of self-help was

unlawful, and thus reversed and rendered this issue.

¶5.     Butts and Atkinson each filed a motion for rehearing with the Court of Appeals, both

of which the Court of Appeals denied. Each filed a petition for certiorari with this Court.

We denied Butts’s petition for certiorari, but granted Atkinson’s, which argued that the trial

court and Court of Appeals improperly addressed the issue of whether her use of self-help

was lawful, and in the alternative, that Atkinson’s use of self-help was indeed lawful.

Therefore, we limit our opinion to addressing the issues surrounding Atkinson’s use of self-

help.

                                        ANALYSIS


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¶6.    “A motion for directed verdict granted by the court, sitting without a jury, is

procedurally a dismissal on the merits under Mississippi Rule of Civil Procedure 41(b).”

Double J Farmlands, Inc. v. Paradise Baptist Church, 999 So. 2d 826, 829 (Miss. 2008).

This Court reviews a grant or denial of a Rule 41(b) motion to dismiss under the substantial

evidence/manifest error standard. Id. “In considering a motion to dismiss, the trial judge

should consider the evidence fairly, as distinguished from in the light most favorable to the

nonmovant, and should dismiss the case if it would find for the movant.” Id. (internal

quotations omitted). “The court must deny a motion to dismiss only if the judge would be

obliged to find for the plaintiff if the plaintiff’s evidence were all the evidence offered in the

case.” Stewart v. Merchants Nat’l Bank, 700 So. 2d 255, 259 (Miss. 1997) (quoting

Century 21 Deep S. Props., Ltd. v. Corson, 612 So. 2d 359, 369 (Miss. 1992)).

¶7.    The trial court found, on an objection to a line of questioning for relevance, that

Atkinson’s use of self-help was lawful. The Court of Appeals found that, under Hall v.

Corbin, 478 So. 2d 253 (Miss. 1985), the trial court had the jurisdiction to address the self-

help issue as an “ancillary claim” to the replevin action, and then found that Atkinson’s use

of self help was unlawful. We find that both the trial court and the Court of Appeals erred

by rendering judgment on this issue.

¶8.    The Court of Appeals found that the trial court had jurisdiction to rule on the claim

regarding self-help under Hall. We find this to be error, because Hall is inapposite. In Hall,

a party moved to intervene in a replevin suit, presenting its claims in a complaint. Hall, 478

So. 2d at 254. The Court noted that “once a court acquired actual subject matter jurisdiction

of an action, other claims . . . , ancillary or pendant to the original claim could also be

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litigated in that action even though the ancillary or pendant claim standing alone may have

been beyond the court’s jurisdiction.” Id. at 255. “[T]he intruding claim must arise out of

the same transaction or occurrence as the principal claim, or, as others put it, out of a

common nucleus of operative fact.” Id. In the case at hand, no formal ancillary or pendant

“claim” exists. Indeed, the claims against Atkinson are the subject of a separate lawsuit.

Thus, neither the trial court nor the Court of Appeals had before it a formal claim regarding

Atkinson’s use of self-help; thus, rendering a formal judgment on the issue was

inappropriate, as the claim was not before either court. Moreover, the Court of Appeals

correctly noted that an action in replevin “‘lies alone against the party in possession at the

time the action is begun,’” and that “Atkinson has never possessed any of the vehicles, nor

has she ever sought possession of the vehicles.” Id. at *2 (quoting Ainsworth v. Blakeny,

98 So. 2d 880, 883 (Miss. 1957)). We therefore reverse the judgments of the County Court

of Hinds County, the Hinds County Circuit Court, the Court of Appeals on this issue, as no

ancillary claim regarding the use of self-help was before any of these courts.

¶9.    We do not suggest, however, that the trial court is prohibited from examining the issue

of Atkinson’s use of self-help in the context of the replevin action. Crowell must show that

Butts “wrongfully took and detains or wrongfully detains” the automobiles. Miss. Code Ann.

§ 11-37-101(e) (Rev. 2012). As the Court of Appeals noted, “Crowell claims he has the

superior right to possession through bailment” and title, and “Butts claims she rightfully

possesses the vehicles because of the unpaid towing/storage fees.” Crowell, 2013 WL

6442149, at *4.

       The owner of a motor vehicle that has been . . . towed upon request of a real

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       property owner upon whose property the vehicle has been left without
       permission of the real property owner for more than five (5) days, shall be
       liable for the reasonable price of towing and storage of such vehicle; and the
       towing company to whom the price of such labor and storage costs may be due
       shall have the right to retain possession of such motor vehicle until the price
       is paid.

Miss. Code Ann. § 85-7-251(1) (Rev. 2011). It is unclear from the record, given that a

complete trial was not held, whether the vehicles in question met the standards outlined in

the statute, including whether the vehicles had been left without permission of the property

owner for more than five days. Furthermore, as the Court of Appeals noted, “[t]his section

does not distinguish between a property owner’s lawful or unlawful towing request. . . . It

remains unclear whether Atkinson’s request gave Butts superior authority to retain

possession of the vehicles under the statute. This is for the trial court to determine.”

Crowell, 2013 WL 6442149, at *4. If the trial court reaches this issue, it is certainly

conceivable that the trial court will need to examine, and even make findings on, the issue

of whether Atkinson’s self-help was lawful. However, that issue is not a “claim” for which

the trial court should render formal judgment.

                                     CONCLUSION

¶10.   We affirm the judgment of the Court of Appeals on the issue of replevin. However,

because no formal claim exists in this case on the issue of Atkinson’s use of self-help, no

formal judgment should have been rendered on the issue. Therefore, the judgment of the

Court of Appeals is affirmed in part and reversed in part, and the judgments of the County

Court of Hinds County and the Hinds County Circuit Court are thus reversed and the case

remanded to the Hinds County Circuit Court, for further proceedings consistent with this



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opinion.

¶11. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART
AND REVERSED IN PART. THE JUDGMENT OF THE HINDS COUNTY
CIRCUIT COURT IS REVERSED AND REMANDED.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS,
CHANDLER, PIERCE AND COLEMAN, JJ., CONCUR. LAMAR, J., CONCURS IN
PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.




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