R. W. Aiken Ins. Agency, Inc. v. Seven Oaks Capitol Corp.


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Docket Number: 2004-CA-01854-COA
Linked Case(s): 2004-CA-01854-COA

Court of Appeals: Opinion Link
Opinion Date: 02-07-2006
Opinion Author: Lee, P.J.
Holding: Affirmed

Additional Case Information: Topic: Contract - Garnishment - Striking of answer - M.R.C.P. 6(c) - Section 11-35-45 - M.R.C.P. 69(a) - Sanctions
Judge(s) Concurring: King, C.J., Myers, P.J., Irving, Chandler, Barnes, Ishee and Roberts, JJ.
Non Participating Judge(s): Southwick and Griffis, JJ.
Procedural History: Dismissal
Nature of the Case: CIVIL - CONTRACT

Trial Court: Date of Trial Judgment: 06-29-2004
Appealed from: Hinds County Circuit Court
Judge: Tomie Green
Disposition: TRIAL COURT DENIED UNTIMELY CHALLENGE TO ANSWER TO WRIT OF GARNISHMENT
Case Number: 251-99-001080-CIV

  Party Name: Attorney Name:  
Appellant: R. W. AIKEN INSURANCE AGENCY, INC.




JOHN T. WAKELAND



 

Appellee: SEVENOAKS CAPITOL CORPORATION BETTY A. MALLETT, AMY KEBERT ELDER  

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Topic: Contract - Garnishment - Striking of answer - M.R.C.P. 6(c) - Section 11-35-45 - M.R.C.P. 69(a) - Sanctions

Summary of the Facts: In 1999, the R. W. Aiken Insurance Agency, Inc., filed suit against S & R Transportation for S & R’s failure to pay its insurance premiums. Aiken secured a default judgment against S & R on February 22, 2000, in the amount of $104,730.47. Aiken then filed a suggestion for writ of garnishment against SevenOaks Capitol Corporation on March 31, 2000. The circuit clerk issued a writ of garnishment which was served upon SevenOaks on April 6. Six days later, SevenOaks filed its answer, denying that it was indebted to S & R. S & R filed for bankruptcy on September 19, 2000, and Aiken filed a claim as an unsecured creditor. During discovery in the bankruptcy proceeding, Aiken ascertained that from April 6, 2000, to April 12, 2000, SevenOaks purchased accounts from S & R for $950,000. At no time did SevenOaks amend its answer to the garnishment. On October 2, 2003, the bankruptcy court lifted the Section 362 automatic stay regarding SevenOaks and Aiken, allowing them to proceed with their respective claims against each other in state court. On June 21, 2004, Aiken filed a motion to contest and to strike SevenOaks’ answer. The garnishment was dismissed on July 1, 2004. Aiken appeals.

Summary of Opinion Analysis: Issue 1: Striking of answer Aikens argues that the court improperly denied its motion regarding SevenOaks’ answer, because pursuant to M.R.C.P. 6(c), he was not required to contest SevenOaks’ answer within the term of court in which it was filed (as mandated by section 11-35-45). According to M.R.C.P. 69(a), where the Mississippi Rules of Civil Procedure conflict with the garnishment procedure mandated by statute, the statute controls. Furthermore, M.R.C.P. 6(c) does not abolish court terms, but merely provides greater flexibility to the courts in attending the myriad functions they must perform. In a garnishment proceeding, the burden is on the garnishor to prove that the garnishee is liable to the judgment creditor. If the garnishor does not contest the garnishee’s answer, the answer is taken as conclusive. Thus, in failing to contest the answer, Aiken effectively conceded that SevenOaks did not owe S & R. Also, it is apparent from the record that SevenOaks did not owe S & R anything which was subject to garnishment. Issue 2: Sanctions Aikens argues that the court failed to grant sanctions. Because Aiken never sought sanctions in the trial court, the issue is procedurally barred.


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