Brief

E-Filed Document
Feb 6 2015 16:10:40
2014-CA-00412
Pages: 29
IN THE SUPREME COURT OF MISSISSIPPI
No.
2014-CA-00412
No.2014-CA-00412
PLAINTIFF-APPELLANT
CLAYTON HINTON
vs.
VS.
NATE ROLISON, Individually;
NATE ROLISON, d/b/a Lincoln Road
Autoplex; and CREDIT ACCEPTANCE
CORPORATION
DEFENDANTS-APPELLEES
On Appeal from the Circuit Court of Lamar County, Mississippi
No. 2013-015
BRIEF OF APPELLEE
CREDIT ACCEPTANCE
CORPORATION
ORAL ARGUMENT NOT
REQUESTED
Mark H. Tyson (MS Bar No. 9893)
Stephen T. Masley (MS Bar No. 101870)
McGlinchey Stafford PLLC
200 South Lamar Street, Ste 1100 (39201)
O. Drawer 22949
P. 0.
Jackson, Mississippi 39225-2949
Telephone: (769) 524-2300
Facsimile: (769) 524-2333
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed persons
have an interest in the outcome of this case. These representations are made in
order that the justices of this Court may evaluate possible disqualification or
recusal.
A.
B.
PARTIES:
Plaintiff/Appellant
Clayton Hinton
Defendants/Appellees
Nate Rolison, Individually
Nate Rolison, d/b/a Lincoln Road Autoplex
Credit Acceptance Corporation
ATTORNEYS:
L. Clark Hicks, Jr.
R. Lane Dossett
Hicks Law Film PLLC
Post Office Box 18350
Hattiesburg, MS 39404-8350
Attorneys for Plaintiff/Appellant
Clayton Hinton
Carroll H. Ingram
Jennifer Ingram Wilkinson
Ingram & Wilkinson
Post Office Box 15039
Hattiesburg, MS 39404-5039
John Corlew
Corlew, Munford & Smith, PLLC
Post Office Box 16807
Jackson, MS 39236
Attorneys for Defendants/Appellees
Nate Rolison, Individually and d/b/a Lincoln
Road Autoplex
1
Mark H. Tyson
Stephen T. Masley
McGLINCHEY STAFFORD, PLLC
200 South Lamar Street, Suite 1100 (39201)
Post Office Drawer 22949
Jackson, Mississippi 39225-2949
Attorneys for Defendant/Appellee
Credit Acceptance Corporation
C.
TRIAL JUDGE:
Honorable Anthony Mozingo
Lamar County Circuit Court Judge
Post Office Drawer 269
Purvis, Mississippi 39475
sf Mark H. Tyson
Mark H. Tyson
11
STATEMENT REGARDING ORAL ARGUMENT
Appellee/Defendant Credit Acceptance Corporation ("Credit Acceptance")
does not believe oral argument will assist the Court. The relevant allegations are
included in the record, and the applicable law is both clear and sufficiently
articulated in the briefs submitted for the Court's consideration. In particular, the
brief of Appellant/Plaintiff Clayton Hinton re-confirms that he had no authority to
support the relief he requested from Credit Acceptance that was denied by the
circuit court.
See Plaintiffs Brief at 17-19.
The basis for the lower court's
decision is clearly set forth in the judgment of dismissal. See R. 739; R.E. 2. Oral
argument would only further delay the resolution of this meritless appeal.
Accordingly, the Court should summarily affirm the judgment without oral
argument. See Miss.R.App.P. 34(a).
111
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ........................................ ................. i
STATEMENT REGARDING ORAL ARGUMENT ............................................... iii
TABLE OF AUTHORITIES ...................................................................................... v
STATEMENT OF THE ISSUES ............ ....... ............................................................. 1
STATEMENT OF THE CASE ............................................................. ....... ............... 2
A.
The Instant Case ................ .................................................................... 2
B.
The Related Litigation ........................................................................... 5
SUMMARY OF THE ARGUMENT ............................................................... .......... 8
ARGUMENT .......................................................................................................... 10
A.
Plaintiff Abandoned His Claim Against Credit
Acceptance by Failing to Cite Any Supporting Authority ................. 11
B.
Plaintiff Lacked Standing ................................................................... 12
C.
Plaintiff Stated No Claim for Injunctive Relief Against
Credit Acceptance .............................................................................. 14
D.
Priority Jurisdiction ............................................................................ 18
E.
Alternatively, Res Judiciata Bars Plaintiffs Claims ......................... 20
CONCLUSION ....................................................................................................... 20
CERTIFICATE OF SERVICE ................... .......... ... ..... ........................................... 22
IV
TABLE OF AUTHORITIES
CASES
A-J Pallet Co. v. City ofJackson, 40 So.3d 563 (Miss. 2010) ............... 8, 15, 16, 17
In re B.A.D. v. Finnegan, 82 So.3d 608 (Miss. 2012) ............................................ 10
Ballard v. Board of Trustees ofJackson/Hinds Library Admin. Bd., 1993 WL
625529 (S.D. Miss. Dec. 14, 1993) ................... .................................................. 17
In re Bell, 962 So.2d 537 (Miss. 2007) ............................................................. 15,16
Bender v. North Meridian Mobile Home Park, 636 So.2d 385 (Miss. 1994) ........ 18
Business Communications, Inc. v. Banks, 90 So.3d 1221 (Miss. 2012) ................. 17
Carter v. Reddix, 115 So.3d 851 (Miss. App. 2012) .......................................... 8, 12
Cenae v. Murry, 609 So.2d 1257 (Miss. 1992) ....................................................... 17
City of Durant v. Humphreys County Memorial Hosp. , 587 So.2d 244
(Miss. 1991) ......................................................................................................... 15
City ofMadison v. Bryan, 763 So.2d 162 (Miss. 2000) ......................................... 13
City ofPicayune v. Southern Regional Corp., 916 So.2d 510
(Miss. 2005) ..................................................................................................... 8, 13
Clark Sand Co., Inc. v. Kelly, 60 So.3d 149 (Miss. 2011) ...................................... 16
Crawford Logging, Inc. v. Estate ofIrving, 41 So.3d 687 (Miss. 2010) ............ 9, 20
Cuevas v. Kellum, 12 So.3d 1154 (Miss. App. 2009) ............................................. 19
Daulton v. Miller, 815 So.2d 1237 (Miss. App. 2002) ........................................... 20
David M Cox, Inc. v. Pitts, 29 So.3d 795 (Miss. App. 2009) ........ .. ...................... 16
EMC Mortgage Corp. v. Carmichael, 17 So.3d 1087 (Miss. 2009) .. ..................... 19
First Miss. National Bank v. KLH Industries, Inc. , 457 So.2d 1333
(Miss. 1984) ................................ ....... .................................................................. 17
Foote v. Grand Lodge of Colored Knights of Pythias, 67 So. 901
(Miss. 1915) .............................. ........................................................................... 14
Gant v. Maness, 786 So.2d 401 (Miss. 2001) ......................................................... 13
Harrison County Commercial Lot, LLC v. H. Gordon Myrick, Inc. ,
107 So.3d 943 (Miss. 2013) ....................................................................... 8,11, 12
Hodges v. Trantham, 157 So. 715 (Miss. 1934) ........................................... 8, 15, 16
Horne v. Time Warner Operations, Inc., 119 F .Supp.2d 624
(S.D. Miss. 1999) ........................................................................................... 15,16
Hunt v. Coker, 741 So.2d 1011 (Miss. App. 1999) ....................................... ........... 3
Issaquena Warren Counties Land Co., LLC v. Warren County, 996 So.2e1
747 (Miss. 2008) .................................................. .......................................... 19,20
Keelon v. Davis, 475 F. Supp. 204 (N.D. Miss. 1979) ........................................... 17
Kirk v. Pope, 973 So.2d 981 (Miss. 2007) .............................................................. 13
Lee v. G&K Services, Co., 98 SO.3,,1 489 (Miss. App. 2012) ................. .... ............. 16
Little v. Miss. Dept. of Transportation, 129 So.3d 132 (Miss. 2013) ..................... 10
v
Middletown Manufacturing Co., Inc. v. Super Sagless Corp., 382
F. Supp. 979 (N.D. Miss. 1974) ........................................................................... 18
Miss. Chemical Corp. v. Chemical Construction Corp., 444 F. Supp. 925
(S.D. Miss. 1977) ................................................................................................. 17
Mitchell v. Atlas Roofing Manufacturing Co., 149 So.2d 298 (Miss. 1963) .......... 14
Oliver v. Skinner, 2013 WL 667664 (S.D. Miss. Feb. 22, 2013) ........................... 17
Owen & Galloway, LLC v. Smart Corp., 913 So.2d 174 (Miss. 2005) .................. 13
Patterson v. TL. Wallace Construction, Inc., 133 So.3d 325 (Miss. 2013) ........... 11
Penn Nat. Gaming Inc. v. Ratliff, 954 So.2d 427 (Miss. 2007) ........................ 10, 18
Puckettv. Stuckey, 633 So.2d 978 (Miss. 1993) ..................................................... 10
Roman Catholic Diocese ofJackson v. Morrison, 905 So.2d 1213
(Miss. 2005) ......................................................................................................... 11
Ruffv. Estate ofRuff, 989 So.2d 366 (Miss. 2008) ................................................. 15
Self v. Lewis, 64 So.3d 578 (Miss. App. 2011) ....................................................... 10
Skelton v. Twin County Rural Elec. Assoc., 611 So. 2d 931 (Miss. 1992) ... .......... 13
Smith v. Wilson, 90 So.3d 51 (Miss. 2012) ............................................................. 11
Soriano v. Gillespie, 857 So.2d 64 (Miss. App. 2003) ....................................... 9, 19
Stuckey v. The Provident Bank, 912 So.2d 859 (Miss. 2005) ................................. 10
STATUTES
Miss. Code Ann. § 1 l-35-1 ..................................................................................... 18
RULES
Miss.R.App.P. 34(a) ................................................................................................. iii
Miss.R.Civ.P. 8 ................................................................................................. 11, 12
Miss.R.Civ.P. 12(b)(l) ............................................................................ 8, 10, 12, 18
Miss.R.Civ.P. 12(b)(6) ........................................................................................ 8, 14
Miss.R.Civ.P. 69; ......................................................................................... ........... 18
Miss.R.Civ.P. 82(a) ................................................................................................. 11
VI
STATEMENT OF THE ISSUES
A.
Whether Plaintiff abandoned his claim against Credit Acceptance by failing
to cite any authority in support of it?
B.
Whether Plaintiff had standing to assert any claims against Credit
Acceptance?
C.
Whether the amended complaint stated a viable claim for injunctive relief
against Credit Acceptance?
D.
Whether Plaintiff's claim was barred by priority jurisdiction?
E.
Whether Plaintiff's claim was barred by res judicata?
1
STATEMENT OF THE CASE
A.
The Instant Case.
Plaintiff/Appellant Clayton Hinton filed this action in the Circuit Court of
Lamar County on February 19, 2013. 1 R. 7.
The Defendants included Nate
Rolison, Individually, and Nate Rolison, d/b/a, Lincoln Road Autoplex, and Credit
Acceptance. R. 8. Prior to either of the Defendants responding, Plaintiff filed a
first amended complaint on February 26, 2013. R. 47; R.E. 4. The amended
complaint joined NWEC, Inc. ("NWEC") as an additional Defendant in this
action. 2 R. 47-48; R.E. 4.
Plaintiff alleged that he and Rolison "signed a written agreement to join in a
venture in which they would sell used automobiles as Lincoln Road Autoplex and
equally divide the profits of the business."
R. 48; R.E. 4.
He founded his
allegations upon a separate lease of property agreement dated August 1, 2009,
relating to the Lincoln Road Autoplex at 4345 Lincoln Road Extension,
Hattiesburg that he, Rolison and CZ, Inc. ("CZ") executed. R. 49; R.E. 4. The
lease provided that:
Nate Rolison, DBA Lincoln Road Autoplex and Clayton Hinton,
being equal partners, assuming responsibility for all debt, taxes,
insurance and profits, not limited to Auto Sales, including all back end
profits defined as "pools" at Lincoln Road Autoplex, assume equal
1
Hinton is referred to in this Brief as "Plaintiff."
2
Nate Rolison and NWEC are collectively referred to in this Brief as "Rolison."
2
personal responsibility for lease should Lincoln Road Autoplex not be
able to pay the lease.
R. 49; R.E. 4. Under the lease, Plaintiff and Rolison were required to pay CZ
$7,000.00 per month, from August 1, 2009 to July 31, 2014.
3
R. 62; R.E. 4. He
asserted that Credit Acceptance financed vehicles purchased by consumers of the
Lincoln Road Autoplex. R. 51; R.E. 4. He claimed that Rolison was paid by
Credit Acceptance for vehicles purchased and financed at the dealership, but that
Rolison had failed to pay him any of those proceeds. R. 51; R.E. 4.
The amended complaint raised a single claim for injunctive relief against
Credit Acceptance. R. 51-52; R.E. 4. Plaintiff demanded that it be enjoined "from
paying any further funds to Rolison generated by the pools obtained as part of the
business between [Plaintiff] and Rolison." R. 51-52; R.E. 4. His claim against
Credit Acceptance was completely dependent upon his supposed "business"
relationship with Rolison, rather than any alleged relationship he had with Credit
Acceptance. R. 51-52; R.E. 4.
Plaintiff also asserted twelve separate causes of action against Rolison and
NWEC: injunctive relief, declaratory relief, breach of contract, breach of the duty
of good faith and fair dealing, anticipatory breach of contract, estoppel, unjust
enrichment, fraud, breach of fiduciary duty, negligence, punitive damages and
3
The lease did not include any other terms of the supposed relationship between Plaintiff and
Rolison. See, e.g., Hunt v. Coker, 741 So.2d 1Oll, 1014-15 (Miss. App. 1999).
3
conversion/misappropriation. R. 52-59; R.E. 4. He demanded an unlimited and
unspecified amount in actual and punitive damages for those claims. R. 60; R.E. 4.
On April 4, 2013, Credit Acceptance filed a motion to dismiss. R. 89; R.E.
5.
The motion argued that the amended complaint failed to state a claim for
injunctive relief, and that Plaintiff's claims were also barred by the priority
jurisdiction doctrine due to a prior chancery action he had filed against Rolison. R.
92; R.E. 5. Rolison also filed a separate motion to dismiss on April 10, 2013,
invoking priority jurisdiction. R. 469. On October 4, 2013, Rolison amended his
motion to dismiss to also argue that Plaintiff's claims were barred by res judicata
based upon the dismissal of the chancery case. R. 692-730, R.E. 9 & 10.
Oral argument was heard by the circuit court on the motions to dismiss on
October 18, 2013. R. 782. After taking the motions under advisement, the circuit
court entered a judgment of dismissal on February 27, 2014, that expressly found
Plaintiff had failed to state a claim against Credit Acceptance because no
"relationship" existed to support such relief. R. 739-40; R.E. 2. The court further
found that Plaintiff's claims against Rolison were barred by res judicata. R. 739;
R.E.2.
4
With new counsel, Plaintiff filed a notice of appeal to this Court from the
judgment of dismissal on March 27, 2014.4 R. 769; R.E. 3. He simultaneously
moved to reconsider the judgment contesting the circuit court's conclusion that res
judicata barred his claim against Rolison. R . 741-43. Although referencing the
"Defendants," the motion to reconsider did not contest the dismissal of Plaintiffs
claim against Credit Acceptance. R. 741-43. The circuit court denied that motion
on May 21 , 2014. R. 846. Plaintiff did not appeal the denial of the motion to
reconsider. R. 1-4; R.E. 1.
B.
The Related Litigation.
Prior to commencing this action, Plaintiff and his relatives filed a separate
suit against Rolison, et al., in the Chancery Court of Lamar County, Mississippi on
April 13, 2012, relating to "Lincoln Road Autoplex.'' R. 158-63; R.E. 7. His
complaint alleged that Rolison had forged signatures on a deed conveying certain
property to Rolison's business. R. 159; R.E. 7. Rolison denied those allegations.
R. 172.
During the chancery proceeding, Plaintiff attempted to subpoena certain
documents from Credit Acceptance relating to its relationship with Rolison. R.
177-78. Rolison moved to quash the subpoena duces tecum and Plaintiff moved to
compel production. R. 180-84 & 188-90. The chancellor subsequently ordered
4
Rolison' s appellate counsel also represented him in the related chancery couii litigation. See,
e.g., R. 162, 190 &207.
5
Plaintiff and his counsel not to have any further contact with Credit Acceptance
"until such time as the Court has heard the motions related to the subpoenas and
entered an appropriate order related to the motions to quash and the Plaintiffs'
motion to compel." R. 202. Credit Acceptance was also directed not to respond to
the subpoena duces tecum pending further order of the court. R. 202.
Plaintiff also filed a motion for emergency and immediate injunction to
escrow payments into the registry of the court on August 13, 2012. R. 204-08,
R.E. 8. He alleged that Rolison had failed to make the monthly $7,000.00 rental
payments on the "Lincoln Road Autoplex." R. 204-06, R.E. 8. That motion was
subsequently resolved through an August 30, 2012 agreed order, under which
Rolison agreed to make certain payments into the registry of the court beginning
on September 5, 2012. R. 209-11.
On October 16, 2012, Rolison filed a motion requesting that Plaintiff be
prohibited from interfering with his business activities. R. 212-42. That motion
asserted that Plaintiff had "harassed" Rolison and interfered with his "business
activities" at the dealership. R. 237-40. On December 7, 2012, the chancellor
entered an order prohibiting "all parties from interfering with one another's
business activities, physical and/or verbal harassment toward one another at any
time or place, specifically including the weekly auto auctions, attempted efforts to
6
intimidate one another, and/or attempted or actual destruction of one another's
property." R.422-25.
The parties then agreed to settle the chancery court case. R 729-30, R.E.
10. A judgment of dismissal with prejudice was entered on June 7, 2013. R 72930, R.E. 10. The judgment specifically provided that:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the
Complaint herein, and all causes of action therein alleged; and all
matters pled by way of cross claim or counter claim, or which could
have been properly pled by cross claim, counter claim or complaint
herein, be and the same are hereby fully and finally dismissed with
prejudice, with each party to bear its own cost;
R 729, R.E. 10. The corresponding mutual release agreement that Plaintiff and
Rolison executed also provided that:
The parties desire to resolve, settle and terminate all of their disputes
with respect to the ownership of the subject property and all of the
claims and counterclaims which were asserted in the referenced
litigation, or could have been therein asserted, which the Hinton
parties and Rolison parties intend to be a complete accord and
satisfaction by and between them.
R 723-26, RE. 9.
7
SUMMARY OF ARGUMENT
Plaintiff failed to identifY any authority or "actionable legal theory" to
support his claim for injunctive relief against Credit Acceptance. See Carter v.
Reddix, 115 So.3d 851,856-57 (Miss. App. 2012). Accordingly, that claim has
been abandoned on appeal.
See Harrison County Commercial Lot, LLC v. H
Gordon Myrick, Inc., 107 So.3d 943,954 (Miss. 2013).
Plaintiff also "had [no] right to judicial enforcement of a legal duty" owed to
him by Credit Acceptance. See City of Picayune v. Southern Regional Corp., 916
So.2d 510, 526 (Miss. 2005). Accordingly, the circuit court lacked subject matter
jurisdiction over his claims against Credit Acceptance.
See Miss.R.Civ.P.
12(b)(1 ).
Furthermore, Plaintiff failed to even state a viable claim for injunctive relief
against Credit Acceptance. See Miss.R.Civ.P. 12(b)(6). He had no "substantial
likelihood" of success on the merits for any claim against Credit Acceptance
because his amended complaint did not state facts to "give rise to a cause of
action" against it. See Hodges v. Trantham, 157 So. 715, 716 (Miss. 1934). By
demanding monetary damages from Rolison, he also conceded that he would not
sustain "irreparable injury" in the event injunctive relief was not granted. See A-I
Pallet Co. v. City ofJackson, 40 So.3d 563, 568 (Miss. 2010).
8
The circuit court was also prohibited from exercising jurisdiction over
Plaintiffs claims based upon the prior chancery court litigation he commenced.
Both actions involved "substantially the same parties and subject matter." See
Soriano v. Gillespie, 857 So.2d 64,68 (Miss. App. 2003).
Finally, Plaintiffs claims against Credit Acceptance are completely
"derivative." See, e.g. , Crawford Logging, Inc. v. Estate of Irving, 41 So.3d 687,
690-91 (Miss. 2010). Thus, to the extent Plaintiffs claims against Rolison were
barred by res judicata, his claims against Credit Acceptance were also properly
dismissed.
9
ARGUMENT
Standard of Review
A trial court's ruling on a motion to dismiss for failure to state a claim or for
want of subject matter jurisdiction is reviewed de novo. See Little v. Miss. Dept. of
Transportation, 129 So.3d 132, 135 (Miss. 2013); In re B.A.D. v. Finnegan, 82
So.3d 608, 611 (Miss. 2012). However, "we will affirm a decision of the [lower]
court where the right result is reached even though we may disagree with the
reason for that result." See Puckett v. Stuckey, 633 So.2d 978, 980 (Miss. 1993);
Selfv. Lewis, 64 So.3d 578, 585 (Miss. App. 2011).
Miss.R.Civ.P. 12(b)(6) "tests [the] legal sufficiency" of a plaintiffs claim.
See Stuckey v. The Provident Bank, 912 So.2d 859, 865 (Miss. 2005). "Dismissal
1S
proper if the complaint lacks an allegation regarding a required element
necessary to obtain relief.
Conclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to defeat a motion to dismiss."
See Penn National Gaming, Inc. v. Ratliff, 954 So.2d 427, 430-431 (Miss. 2007)
(citation omitted). A motion to dismiss under Rule 12(b)(l) challenges the trial
court's subject matter jurisdiction. See Miss. R. Civ. P. 12(b)(1). Such attacks
"are either facial or factual. A facial attack alleges the court lacks jurisdiction as a
matter of law, regardless of the determination of factual disputes. A factual attack
requires resolution by the trial court of one or more factual disputes in order to
10
determine subject matter jurisdiction. 11 See Roman Catholic Diocese of Jackson v.
Morrison, 905 So.2d 1213, 1220-21 (Miss. 2005).
A.
Plaintiff Abandoned His Claim Against Credit Acceptance by
Failing to Cite Any Supporting Authority.
The amended complaint did not articulate any factual or legal basis for the
injunctive relief Plaintiff requested against Credit Acceptance. R. 47-52; R.E. 4.
Plaintiff's brief is equally devoid of any such authority. See Plaintiff's Brief at 1719. As a result, he has forfeited any such claim against Credit Acceptance.
It is the appellant's "duty to provide support for his argument."
See
Patterson v. TL. Wallace Construction, Inc., 133 So.3d 325, 330 (Miss. 2013). If
he fails to do so, "the Court considers unsupported assignments of error to be
abandoned." See Harrison County Commercial Lot, LLC v. H Gordon Myrick,
Inc., 107 So.3d 943, 954 (Miss. 2013); Smith v. Wilson, 90 So.3d 51, 59 (Miss.
2012).
Plaintiff cites no authority that would entitle him to any relief from Credit
Acceptance. See Plaintiff's Brief at 17-19. Instead, he merely argues that the
amended
complaint
somehow
satisfied the
procedural
requirements
of
Miss.R.Civ.P. 8. See Plaintiff's Brief at 17. Rule 8, however, did not entitle him
to any relief against Credit Acceptance. See, e.g., Miss.R.Civ.P. 82(a) (providing
that rules of civil procedure do not extend jurisdiction). Moreover, despite his
conclusory assertion to the contrary, the amended complaint contained no "short
11
and plain statement of the claim showing that the [Plaintiff] [was] entitled to relief'
against Credit Acceptance. See Miss.R.Civ.P. 8(a)(l). "Under the liberal pleading
requirements of Rule 8(a), 'a plaintiff must [still] set forth factual allegations,
either direct or inferential, respecting each material element necessary to sustain
recovery under some actionable legal theory."' 5 See Carter v. Reddix, 115 So.3d
851, 856-57 (Miss. App. 2012). The amended complaint contained no "factual
allegations" that would entitle Plaintiff to any relief from Credit Acceptance. R.
47-52; R.E. 4. Having failed to identify any authority or "actionable legal theory"
to support his claim for injunctive relief against Credit Acceptance, that claim has
been "abandoned" in this appeal.
See Harrison County Commercial Lot, 107
So.3d at 954.
B.
Plaintiff Lacked Standing.
Plaintiff did not allege that he had any relationship with Credit Acceptance.
R. 47; R.E. 4. Rather, he sought injunctive relief against Credit Acceptance based
upon his supposed business relationship with Rolison. R. 52; R.E. 4. Plaintiff had
no standing to assert any claims against Credit Acceptance. See Miss.R.Civ.P.
12(b)(l).
5
Aside from the rule itself, Plaintiff proffers only two cases that apply Rule 8 in an attempt to
substantiate his putative claims against Credit Acceptance. See Plaintiffs Brief at 17. Neither of
those decisions provide Plaintiff with any succor as they do not provide him with an "actionable
legal theory" to rest a putative claim for injunctive relief upon. See Carter, 115 So.3d at 856-57.
12
"[O]nly parties in interest may sue." See Owen & Galloway, LLC v. Smart
Corp., 913 So.2d 174, 179 (Miss. 2005).
11
[S]tanding is a jurisdictional issue
which may be raised by any party or the Court at any time." See Kirk v. Pope, 973
So.2d 981, 989 (Miss. 2007) (internal quotation marks and citation omitted).
Standing requires that "there must be a present, existent actionable title or interest
which must be completed at the time the cause of action is filed." See City of
Madison v. Bryan, 763 So.2d 162, 165 (Miss. 2000) (emphasis in original and
internal quotation marks and citation omitted).
"[T]he issue adjudicated in a
standing case is whether the particular plaintiff had a right to judicial enforcement
of a legal duty of the defendant .... " See City of Picayune v. Southern Regional
Corp., 916 So.2d 510, 526 (Miss. 2005). "The duty owed by a defendant to a
plaintiff depends upon their relation to one another." See Skelton v. Twin County
Rural Elec. Assoc., 611 So. 2d 931, 93 6 (Miss. 1992). In order to obtain any relief,
11
the plaintiff must show the existence of a legal duty owed by the defendant to the
plaintiff." See Gant v. Maness, 786 So.2d 401, 405 (Miss. 2001).
Plaintiff did not allege the existence of any relationship between himself and
Credit Acceptance - statutory, contractual or otherwise. R. 47-52; R.E. 4. Absent
such a relationship, Credit Acceptance owed Plaintiff no "legal duty" upon which
any claim could be based. See City of Picayune, 916 So.2d at 526. Instead, his
demand for injunctive relief rested solely upon the contractual relationship Credit
13
Acceptance had with Rolison. R. 52; R.E. 4. But '"no person is bound by a
contract except the parties thereto and [] no person is entitled to any right
thereunder or may have liability cast upon him thereby unless as a patty he has
agreed thereto."' See Mitchell v. Atlas Roofing Manufacturing Co., 149 So.2d 298,
303 (Miss. 1963) (quoting
GRIFFITH'S OUTLINES OF THE LAW
at 221).
By
contracting with Rolison, Credit Acceptance assumed no "liability" to Plaintiff, a
stranger to that agreement. Id. As a non-patty to that relationship, Plaintiff also
acquired no rights against Credit Acceptance.
See Foote v. Grand Lodge of
Colored Knights of Pythias, 67 So. 901, 901 (Miss. 1915) (holding that non-
beneficiary of policy lacked "any standing to claim . . . the amount of the
insurance."). Thus, Plaintiff lacked standing to assert any claims against Credit
Acceptance.
C.
Plaintiff Stated No Claim for Injunctive Relief Against Credit
Acceptance.
The amended complaint asserted only a single claim against Credit
Acceptance. R. 51-52; R.E. 4. Plaintiff demanded provisional injunctive relief to
prohibit Credit Acceptance from making any further payments to Rolison. R. 5152; R.E. 4.
Because he asserted no "actionable legal theory" against Credit
Acceptance and failed to allege the requirements for securing injunctive relief,
Plaintiff failed to state a claim against Credit Acceptance. See Miss.R.Civ.P.
12(b)(6).
14
Injunctive relief "is a harsh remedy that is not favored by courts, and should
be used only in cases of great necessity." See RuJJv. Estate ofRuff, 989 So.2d 366,
370 (Miss. 2008). In order to obtain such relief, a party must demonstrate:
(1) There exists a substantial likelihood that plaintiff will prevail on
the merits;
(2) The injunction is necessary to prevent irreparable injury;
(3) Threatened injury to the plaintiffs outweighs the harm an
injunction might do to the defendants; and
(4) Entry of a preliminary injunction is consistent with the public
interest.
See A-I Pallet Co. v. City of Jackson, 40 So.3d 563, 568-69 (Miss. 2010); City of
Durant v. Humphreys County Memorial Hasp., 587 So.2d 244, 250 (Miss. 1991).
However, "[a] claim for injunctive relief does not stand alone, but requires a viable
underlying legal claim."
See Horne v. Time Warner Operations, Inc., 119
F.Supp.2d 624, 630 (S.D. Miss. 1999). Thus, "an application for injunctive relief
[must] be predicated upon some legal or equitable claim which will, at some point,
proceed to the merits," see In re Bell, 962 So.2d 537, 541 (Miss. 2007), and "will
never issue to protect a right not in existence and which may never arise, nor upon
a state of facts which does not give rise to a cause of action." See Hodges v.
Trantham, 157 So. 715, 716 (Miss. 1934). Finally, injunctive relief cannot be
granted unless "there is no adequate remedy at law." See Ruff, 989 So.2d at 369
15
(citation and internal quotation marks 01nitted); David M Cox, Inc. v. Pitts, 29
So.3d 795, 806 (Miss. App. 2009).
Plaintiff had no "substantial likelihood" that· he would "prevail on the
merits" of any claim against Credit Acceptance because he did not assert any
"actionable legal theory" against Credit Acceptance. See A-1 Pallet, 40 So.3d at
568; Carter, 115 So.3d at 856-57. He had no "viable underlying legal claim" to
support any injunctive relief. See Horne, 119 F .Supp.2d at 630. The amended
complaint contained no claim against Credit Acceptance that could ever "proceed
to the merits."
See Bell, 962 So.2d at 541. Rather, Plaintiff sought only "a
temporary restraining order and a preliminary injunction" to keep it from paying
Rolison while his other claims against Rolison are adjudicated. R. 59; R.E. 4.
Thus, he failed to allege "a state of facts" that could "give rise to a cause of action"
against Credit Acceptance. See Hodges, 15 7 So. at 716.
Plaintiff also failed to allege any remediable "injury" much less any
"irreparable" injury. See A-1 Pallet, 40 So.3d at 568. An injury is "the invasion of
a legally protected interest." See Clark Sand Co., Inc. v. Kelly, 60 So.3d 149, 160
(Miss. 2011 ); Lee v. G & K Services, Co., 98 So.3d 489, 493 (Miss. App. 2012).
Plaintiff has no "legally protected interest" in funds that may be due to Rolison as a
result of his relationship with Credit Acceptance. See Kelly, 60 So.3d at 160.
Moreover, his demand for monetary damages against Rolison confirmed that
16
Plaintiff would not sustain "irreparable" injury without injunctive relief. See A-1
Pallet, 40 So.3d at 568. "It is a cardinal point that injunctive relief will not be
granted when the plaintiff may be adequately compensated by monetary damages."
See Ballard v. Board of Trustees of Jackson/Hinds Library Adm in. Bd., 1993 WL
625529, at
* 4 (S.D. Miss. Dec.
14, 1993). Plaintiff's claims were contractual in
nature. R . 49; R.E. 4. He sought relief from Rolison based upon their supposed
partnership. R. 49; R.E. 4. Monetary damages are available relief for a breach of
contract. See Business Communications, Inc. v. Banks, 90 So.3d 1221, 1225 (Miss.
2012).
In fact, money damages are the "favored remedy" for contract-related
claims. See, e.g., Cenac v. Murry, 609 So.2d 1257, 1274 (Miss. 1992). Having
asserted a damage claim against Rolison for his alleged violations, Plaintiffs own
pleading established that he stated no claim for injunctive relief against Credit
Acceptance. See, e.g., Oliver v. Skinner, 2013 WL 667664, at
* 10 (S.D. Miss.
Feb. 22, 2013).
By joining Credit Acceptance as a Defendant, Plaintiff sought to secure
provisiona1, pre-judgment relief that he is not entitled to under state law. See, e.g.,
First Miss. National Bank v. KLH Industries, Inc. , 457 So.2d 1333, 1337 (Miss.
1984). Mississippi's pre-judgment sequestration and attachment statutes have been
deemed unconstitutional. See Keelan v. Davis, 475 F. Supp. 204, 213 (N.D. Miss.
1979) (sequestration); Miss. Chemical Corp. v. Chemical Construction Corp., 444
17
F. Supp. 925,940-42 (S.D. Miss. 1977) (attachment); Bender
v.
North Meridian
Mobile Home Park, 636 So.2d 385, 389-90 (Miss. 1994) (dicta). While there are
means through which a judgment may be enforced after entry, they require a prior
judgment.
See, e.g., Miss.RCiv.P. 69; Miss. Code Ann. § 11-35-1.
Plaintiff
cannot circumvent that requirement by demanding provisional injunctive relief
against a party with whom he has no relationship and against whom he has no
viable claim. See Middletown Manufacturing Co., Inc. v. Super Sagless Corp., 382
F. Supp. 979, 983 (N.D. Miss. 1974) (finding that injunctive relief should not be
granted "when the order would work a hardship on third persons."). Thus, he has
failed to allege the "element[s] necessary to obtain [injunctive] relief' against
Credit Acceptance. See Penn Nat. Gaming Inc. v. Ratliff, 954 So.2d 427,430-431
(Miss. 2007).
D.
Priority Jurisdiction.
Plaintiff has filed multiple cases involving his business relationship with
Rolison and the "Lincoln Road AutoPlex." R 158; RE. 7. Because the chancery
court action was filed long before this suit was filed in circuit
court lacked jurisdiction over Plaintiffs claims.
COUlt,
the circuit
See Miss.RCiv.P. 12(b)(I).
Thus, the circuit court litigation should have been dismissed.
"The priority-of-jurisdiction rule stands for the premise that if the first court
in which the action is filed has proper subject matter jurisdiction, the court should
18
retain jurisdiction over the whole controversy." See Issaquena Warren Counties
Land Co., LLC v. Warren County, 996 So.2d 747, 750 (Miss. 2008).
"[T]his
doctrine prohibits a court from taking jurisdiction over a matter, involving
substantially the same parties and subject matter, if another court has acquired
jurisdiction." See Soriano v. Gillespie, 857 So.2d 64, 68 (Miss. App. 2003).
Both the instant case and the chancery court litigation involve the same
parties and subject matter, namely Plaintiffs alleged business dealings with
Rolison. 6 R. 47 & 158; R.E. 4 & 7. In the chancery court action, he asserted, inter
alia, that certain deeds relating to the dealership property were forged. R. 159;
R.E. 7. He further claimed that Rolison failed to pay the dealership's rent. R. 205,
R.E. 8. Rolison also claimed that Plaintiff "harassed" him while operating the
dealership. R. 237-239. In this action, Plaintiff alleged that Rolison has deprived
him of profits or revenues derived from their "joint business venture." 7 R.47; R.E.
4. Because the claims are based upon the same supposed business relationship
between Plaintiff and Rolison, the chancery court "ha[d] priority jurisdiction to the
6
Unlike res judicata which requires "identity," priority jurisdiction requires only that the two
cases involve "substantially the same parties and subject matter." Compare EMC Mortgage
Corp. v. Carmichael, 17 So.3d 1087, 1090 (Miss. 2009) with Soriano, 857 So.2d at 68.
7
Plaintiff attempts to argue that the chancery court lacked jurisdiction over the claims he
asserted in the amended complaint. See Plaintiffs Brief at 12. However, Plaintiffs
"partnership" claims were equitable in nature and squarely within the chancery court's
jurisdiction. See, e.g., Cuevas v. Kellum, 12 So.3d 1154, 1157-58 (Miss. App. 2009) (holding
that partnership and accounting claims were equitable). The chancery corni also had pendent
jurisdiction over any supposed legal claims Plaintiff had against Rolison. See Issaquena Warren
Counties Land Co., 996 So.2d at 751.
19
exclusion and abatement of the [amended] complaint" Plaintiff filed in circuit
court. See Issaquena Warren Counties Land Co., 996 So.2d at 750. Thus, the
circuit court case was properly dismissed.
E.
Alternatively, Res Judicata Bars Plaintiff's Claims.
Plaintiffs demand for injunctive relief against Credit Acceptance was
completely dependent upon his claims against Rolison. R. 47-52; R.E. 4. The
circuit court dismissed his claims against Rolison based upon res judicata. R. 739;
R.E. 2. As such, should this Court agree that his claims against Rolison are barred
by res judicata, the dismissal of his "derivative" claim against Credit Acceptance
must also be affirmed. See, e.g., Crawford Logging, Inc. v. Estate of Irving, 41
So.3d 687,690-91 (Miss. 2010); Daulton v. Miller, 815 So.2d 1237, 1241 (Miss.
App.2002).
CONCLUSION
Plaintiff had no relationship with Credit Acceptance and absolutely no basis
for asserting any claims against it. The circuit court properly dismissed Plaintiffs
claim for injunctive relief. That decision should be affirmed by this Court.
20
This the 6th day of February, 2015.
Respectfully submitted,
CREDIT ACCEPTANCE
CORPORATION
By: s/ Mark H. Tyson
Of Counsel
Mark H. Tyson (MSB #9893)
Stephen T. Masley (MSB #101870)
McGLINCHEY STAFFORD, PLLC
City Centre South, Suite 1100
200 South Lamar Street (Zip - 39201)
Post Office Drawer 22949
Jackson, Mississippi 39225-2949
Telephone: (769) 524-2300
Facsimile: (769) 524-2333
mtyson@mcglinchey.com
smasley@mcglinchey.com
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CERTIFICATE OF SERVICE
I, Mark H. Tyson, do hereby certify that I electronically filed the Principal
Brief of Appellee Credit Acceptance Corporation with the Clerk of the Cowt using
the CM/ECF system, which sent notice of electronic filing to all CM/ECF
participants this the 6th day of February, 2015, resulting in service upon all counsel
of record as follows:
L. Clark Hicks, Jr.
R. Lane Dossett
Hicks Law Firm PLLC
Post Office Box 18350
Hattiesburg, MS 39404-8350
VIA ELECTRONIC FILING
John Corlew
Corlew, Munford & Smith, PLLC
Post Office Box 16807
Jackson, MS 39236
VIA ELECTRONIC FILING
Carroll H. Ingram
Jennifer Ingram Wilkinson
Ingram & Wilkinson
Post Office Box 15039
Hattiesburg, MS 39404-5039
VIA ELECTRONIC FILING
Honorable Anthony Mozingo
Lamar County Circuit Court Judge
Post Office Drawer 269
Purvis, MS 394 7 5
VIA U.S. MAIL
This the 6th day of February, 2015.
sf Mark H. Tyson
Mark H. Tyson
288384.1
22