IN THE SUPREME COURT OF MISSISSIPPI
NO. 2015-CA-01164-SCT
KIMBERLEE DAVENPORT
v.
HANSAWORLD, USA, INC.
DATE OF JUDGMENT: 07/13/2015
TRIAL JUDGE: HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: DANIEL MYERS WAIDE
ATTORNEYS FOR APPELLEE: RICHARD MONTAGUE
W. THOMAS SILER, JR.
JASON THOMAS MARSH
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED - 01/19/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
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.
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¶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.
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¶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
1
After both parties made their arguments, the following exchange occurred:
THE COURT: So this action in federal court [(Employment Action)] is set for
August?
DAVENPORT: Yes, Your Honor.
THE COURT: And if there is recovery in that, you’ll get your money out of
it, right?
HANSAWORLD: Theoretically, yes, sir.
THE COURT: I am going to grant his [sic] motion, but I’m going to require
that he [sic] post a $100,000 bond. Okay. Anything further?
HANSAWORLD: Well, Your Honor, if the sale is scheduled at two o’clock
this afternoon, so will the sale be allowed to proceed –
THE COURT: No.
HANSAWORLD: – if the bond is not posted by then?
THE COURT: If the bond is not posted, yes.
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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
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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
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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
circuit court has never had an opportunity to address the appropriateness of the bond.
¶14. Davenport did not preserve the argument at the circuit court, and we hold her failure
to do so waives her right to challenge the bond on appeal.
CONCLUSION
¶15. Having determined that the circuit court’s order is a final, appealable judgment and
that the Court has jurisdiction to hear the appeal, we conclude that Davenport waived her
right to challenge the circuit court’s imposition of the bond on appeal because she failed to
challenge the bond before the circuit court. We affirm.
¶16. AFFIRMED.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., MAXWELL, BEAM
AND CHAMBERLIN, JJ., CONCUR. KING, J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY KITCHENS, J.
KING, JUSTICE, DISSENTING:
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¶17. The majority argues that Davenport did not object to the bond set on the condition of
granting her motion to quash, and that she thus waived any objection to the same on appeal.
Because I believe that the Court should address the issue, I respectfully dissent.
¶18. It is true that when a party fails to object at the trial court level, “the point of error is
not preserved on appeal.” State Highway Comm’n of Mississippi v. Hyman, 592 So. 2d
952, 957 (Miss. 1991). However, “[t]his Court retains the power to notice plain error.” Id.
“The plain error doctrine reflects a policy to administer the law fairly and justly.2 A party is
protected by the plain error rule when (1) he has failed to perfect his appeal and (2) when a
substantial right is affected.” Id. In this case, a substantial right is affected, as Davenport
had her entire Title VII lawsuit stripped from her control – purchased by the defendant in that
suit itself. Moreover, the trial court committed plain error by conditioning the grant of a
motion to quash on the posting of a bond, something that was not within its power to do
under Rule 65.
¶19. Mississippi Rule of Civil Procedure 65 provides that
No restraining order or preliminary injunction shall issue except upon the
giving of security by the applicant, in such sum as the court deems proper, for
the payment of such costs, damages, and reasonable attorney’s fees as may be
incurred or suffered by any party who is found to have been wrongfully
enjoined or restrained[.]
M.R.C.P. 65(c). The trial court did not issue a restraining order or preliminary injunction,
thus Rule 65 does not apply. And Hansaworld does not point this Court to any other
2
The plain error doctrine is consistent with the judicial oath of office. Miss. Const.
art. 6, § 155 (“I will administer justice without respect to persons, and do equal right to the
poor and to the rich[.]”).
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authority for granting a bond in this case. Hansaworld argues that the trial court’s order
granting a motion to quash is tantamount to a preliminary injunction. But it is not. First, the
order in no way enjoins or restrains Hansaworld, so the purpose of requiring a bond is
unclear. Second, granting a motion to quash offers permanent relief, while granting a
preliminary injunction offers temporary relief. An order granting a motion to quash
determines that the instrument to be quashed is irretrievably improper and should be
eliminated.
¶20. To “quash” means “[t]o annul or make void; to terminate.” Quash, Black’s Law
Dictionary (10th ed. 2014). A “motion to quash” is therefore “[a] party’s request that the
court nullify process or an act instituted by the other party, as in seeking to nullify a
subpoena.” Motion to Quash, Black’s Law Dictionary (10th ed. 2014). The trial court in this
case found that, after considering the pleadings and arguments, “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.” Thus, the trial court found that the alias
writ of execution should be completely nullified, as it apparently found that such alias writ
was improper. To condition the complete nullification of an improper instrument on the
posting of security is problematic and outside the scope of the rules. Either the writ of
execution is improper and should be quashed regardless of ability to pay, or it is proper and
should be allowed. Moreover, quashing an instrument, nullifying it forever, in no way
threatens to improperly enjoin or restrain Hansaworld. Thus, the trial court was without the
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authority to condition the grant of the motion to quash on the posting of a bond. For this
reason, I believe that the judgment of the trial court should be reversed.
KITCHENS, J., JOINS THIS OPINION.
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