Smith v. Rjh of Florida, Inc., Civil Action No. 3:06CV689TSL-JCS.

• Decision Date: 19 October 2007
• Docket Number: Civil Action No. 3:06CV689TSL-JCS.
• Parties: Leon E. SMITH and Emma Jean Smith, Plaintiffs v. RJH OF FLORIDA, INC. and Kimco Leasing, Inc., Defendants.
• Court: U.S. District Court — Southern District of Mississippi

Page 838

520 F.Supp.2d 838

Leon E. SMITH and Emma Jean Smith, Plaintiffs v. RJH OF FLORIDA, INC. and Kimco Leasing, Inc., Defendants.

Civil Action No. 3:06CV689TSL-JCS.

United States District Court, S.D. Mississippi, Jackson Division.

October 19, 2007.

Carroll Edward Rhodes, Law Offices of Carroll Rhodes, Hazlehurst, MS, for Plaintiffs.

Lester F. Smith, Smith & McArty, Ridgeland, MS, for Defendants.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

Plaintiffs Leon E. Smith and Emma Jean Smith filed their complaint in this cause seeking to recover actual and punitive damages for what they allege is a "wrongful garnishment" by defendants, and further seeking a declaratory judgment that the judgment upon which such petition for garnishment is void. Defendants RJH of Florida, Inc. and Kimco Leasing, Inc. have moved to dismiss or, in the alternative, for summary judgment, arguing that plaintiffs' complaint is barred in its entirety by res judicata and/or collateral estoppel.¹ The court, having considered the memoranda of authorities, together with attachments, submitted by the parties, along with additional pertinent authorities, concludes that the cause must be dismissed.

In the 1980s, Emma Smith, who owned and operated Janie's Bakery in Brookhaven, Mississippi, entered into an equipment lease agreement with Kimco. According to Kimco, Emma Smith's husband, Leon, also signed the lease agreement. In 1989, after the Smiths failed to make any payments under the lease agreement, Kimco filed suit against the Smiths in the Circuit Court of Allen County, Indiana for breach of the lease agreement. The Smiths, who were Mississippi residents, appeared in the Indiana action and challenged that court's jurisdiction over them, contending that they had been solicited by Kimco's salesman in Mississippi and that they had no contacts of any sort with Indiana. Upon losing their jurisdiction argument, the Smiths defended the action on the merits, contending among other things that Leon Smith had not signed the lease agreement and that his signature had instead been forged. The Smiths lost the case and a judgment was entered against them on July 6, 1990 in the amount of 455.99, including the principal amount of $6,593.55, together with interest and attorney's fees. The Smiths filed an appeal, which they lost.

In 1991, Kimco applied to the Indiana court for a writ of garnishment, which was issued on August 14, 1991. Six years later, in July 1997, Kimco filed a writ of garnishment in the Circuit Court of Lincoln County, Mississippi. The Smiths filed an answer and "counterclaim answer" in which they asserted that (1) because Kimco had failed to timely register and enter the Indiana judgment as required by Mississippi law, the judgment was "null and void and of no effect"; (2) the judgment was obtained by fraud and deceit and unenforceable for that reason; (3) Leon Smith's signature was forged on the lease; and (4) the Indiana court lacked personal jurisdiction over them. In their counterclaim, they sought to recover actual and punitive damages for Kimco's "intentionally, deliberately and maliciously attempting to enforce a foreign judgment outside of the applicable statute of limitations without following the proper process for enforcement of foreign judgments." Kimco moved to strike the Smiths' answer and counterclaim, but prior to a ruling, the parties agreed to withdraw their pleadings and Kimco agreed to withdraw the judgment that had been enrolled in Lincoln County and an order was entered April 12, 1999 reciting that the pleadings filed by both parties would be "withdrawn with prejudice" and that the judgment enrolled on the judgment roll in Lincoln County would be withdrawn.

Subsequently, in 1989, Kimco filed an action in State court in Indiana to renew its 1990 judgment, since Indiana provides a ten-year statute of limitations for renewal of a judgment. See Ind.Code § 34-55-1-6. The Smiths were served with process and filed an answer and counterclaim, advancing some of the same arguments they had made originally, namely, that the Indiana court lacked personal jurisdiction to enter the judgment and that Mr. Smith's signature on the lease was a forgery, but also arguing further that the judgment was "void ab initio" due to Kimco's failure to enroll the judgment in Mississippi within three years of its rendition, and that Kimco's efforts to renew the judgment should be rejected on the basis of res judicata and/or accord and satisfaction because the parties had reached a settlement in the Lincoln County action which had resulted in Kimco's having "withdrawn" the original Indiana judgment "with prejudice." Over the Smiths' objections, the Indiana court entered an order in 2000 renewing the judgment.

Kimco enrolled the judgment in Lincoln County in August 2001, and attempted to give notice of such enrollment to the Smiths as required by law; the Smiths, however, had by that time moved from Lincoln County and the notice was returned as their forwarding order had expired. In October 2005, Kimco returned to Indiana to have the judgment renewed a second time. Again the Smiths objected, but again the judgment was renewed, and on June 20, 2006, Kimco enrolled the judgment in Copiah County, where the Smiths were then residing.

On December 8, 2006, the Smiths filed the present action for wrongful garnishment, negligence/gross negligence, intentional infliction of emotional distress, malicious prosecution and abuse of process, alleging that "[t]he defendant's entry of foreign judgment and writ of garnishment against the plaintiffs are barred by the applicable statute of limitations[,] ... by accord and satisfaction[,] ... by res judicata[,] and ... by collateral estoppel[,] and [that] [t]he defendants' foreign judgment is void ab initio." Plaintiffs further alleged, again, that Leon Smith never signed the lease agreement and that the Indiana court lacked personal jurisdiction over them.

Defendants have moved to dismiss, or alternatively for summary judgment, taking the position that plaintiffs' claims were previously raised and litigated (or could have been) and consequently are barred by res judicata. Plaintiffs offer essentially two arguments in response to the motion. First, they contend that as a result of Kimco's failure to enroll the 1990 judgment within three years of the date of its issuance, as required by Mississippi Code Annotated § 15-1-45, the judgment is void ab initio. Second, they assert that the doctrines of accord and satisfaction and/or res judicata bar any effort by Kimco from enrolling or enforcing its judgment because the parties reached a settlement of the previous garnishment action brought by Kimco in Lincoln County which settlement resulted in Kimco's withdrawing its judgment "with prejudice."²

Plaintiffs' argument with respect to Kimco's withdrawal of its judgment "with prejudice" is without merit. A review of the agreed order entered by the Lincoln County Circuit Court recites that the parties' pleadings, i.e., the Smiths' answer to Kimco's writ of garnishment and Kimco's motion to strike, were withdrawn "with prejudice." The judgment itself was merely "withdrawn" without any indication that it was withdrawn "with prejudice."

As for plaintiff's limitations argument, Mississippi Code Annotated § 15-1-45 states:

All actions founded on any judgment or decree rendered by any court of record without this state shall be brought within seven years after the rendition of such judgment or decree, and not after. However, if the person against whom such judgment or decree was or shall be rendered, was, or shall be at the time of the institution of the action, a resident of this state, such action, founded on such judgment or decree, shall be commenced within three years next after the rendition thereof, and not after.

Kimco acknowledges that in accordance with the statute of limitations established by § 15-1-45 for enrollment of foreign judgments against Mississippi residents, the original Indiana judgment, entered in 1990, could not be enrolled/enforced in Mississippi more than three years after it was issued. It maintains, though, that the judgment on which its current garnishment proceeding is based is not the original 1990 judgment, but rather the renewed judgment entered by the Indiana court in 2006, and that consequently, there is no merit to plaintiffs' limitations argument since that judgment was enrolled in Mississippi and the writ of garnishment filed thereon within three years of its rendition.

"Res judicata requires four elements: (1) identity of the subject matter, (2) identity of the cause of action, (3) identity of the parties, and (4) identity of the quality or character of a person against whom the claim is made." Jenkins v. Terry Investments, LLC, 947 So.2d 972, 977 (Miss.Ct.App.2006) (citing Norman v. Bucklew, 684 So.2d 1246, 1253 (Miss. 1996)). "If these four identities are present, the parties will be prevented from relitigating all issues tried in the prior lawsuit as well as all matters which should have been litigated and decided in the prior suit." Dunaway v. W.H. Hopper & Assocs., 422 So.2d 749, 751 (Miss.1982).

In the court's opinion, even if the issue was whether the 1990 Indiana judgment could be enrolled and enforced in Mississippi notwithstanding that more than three years had passed since its rendition, res judicata would not apply. Granted, that issue was directly raised by the Smiths in the 1997 garnishment proceedings in Lincoln County Circuit Court, but it was never litigated because the parties agreed to withdraw their pleadings in that action. The issue was subsequently raised by the Smiths in the actions to renew judgment brought by Kimco in Indiana state court in 1999 and in 2005. The fact that the Indiana court renewed the judgment over the Smiths' objections demonstrates that the court implicitly rejected their argument that the 1990 judgment was "void ab ...