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Jackson, MS - Personal Property lawyer represented defendant on a replevin of personal property claim.

On July 9, 2018, Neely filed a complaint for replevin of certain personal property that
he alleged Massey had wrongfully retained. Neely’s complaint provided a list of the items
at issue and stated that the total value of the items exceeded $7,500. In her response to
Neely’s complaint, Massey asserted that Neely had given the items to her as inter vivos gifts.
¶3. On March 5, 2019, the circuit court conducted a hearing on Neely’s replevin claim.
Neely testified that he and Massey had dated from 2016 to 2017 and had left personal
property at each other’s residences during the course of their relationship. Neely explained
that both he and Massey participated in cowboy-mounted shooting and had attended shows
and competitions together. The personal property that Neely sought to recover consisted of
various items such as guns, equipment, and clothing needed to participate in cowboymounted shooting. Neely stated that he had stored the items in Massey’s trailer, which he
and Massey had planned to drive to a show in Las Vegas, Nevada. Neely testified that the
couple ended up not attending the Las Vegas show but that his personal property had
remained in Massey’s trailer even after the couple stopped dating. According to Neely,
Massey had agreed to meet his friend Tim Sellers when she attended a show in Meridian,
Mississippi, and to transfer the items into Sellers’s possession. Neely testified that Sellers
then planned to return the items to him.
¶4. Sellers testified that Neelyhad asked himto meet Masseyat the Meridian show, where
Massey would give Sellers several items of Neely’s personal property in her possession.
Sellers further testified that he planned to store Neely’s personal items at his own residence
until Neely returned from out of town to retrieve them. Sellers stated that when he met
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Massey at the Meridian show, she informed him that she had not brought Neely’s items with
her. Sellers testified that Massey knew which items he was talking about and that she
acknowledged as much to him. According to Sellers, Massey stated that she and Neely
“would get together[,] and she would get . . . [the items] back to him [(Neely)].”
¶5. Massey testified as well and denied that she ever met with Sellers at the Meridian
show. She further denied ever having had a conversation with Sellers about transferring the
items at issue to his possession. According to Massey, Neely had given her the items as gifts
during their dating relationship. Massey testified that some of the items listed in Neely’s
complaint had never been in her possession. At that point in Massey’s testimony, the circuit
court recessed the hearing and ordered the parties and their attorneys to provide a corrected
list of items that were in Massey’s possession.
¶6. When the hearing resumed, Neely’s attorneymoved to mark the corrected list of items
as an evidentiary exhibit. On cross-examination, Massey testified that she recognized the
corrected list of items and that both she and her attorney had agreed to the inclusion of each
item on the corrected list. Massey further testified that each of the items on the corrected list
was in her possession. She maintained, however, that Neely had given her the items as gifts.
¶7. Following the hearing, the circuit court issued a bench ruling in favor of Neely. The
circuit court found Neely’s and Sellers’s testimonies more credible than Massey’s testimony
and determined that Neely had met his burden of proof for his replevin claim. The circuit
court ordered Massey to return the items on the corrected list to Neely within forty-eight
hours.
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¶8. Massey filed a motion to set aside the circuit court’s March 5, 2019 final judgment.
For the first time, Massey asserted in her post-trial motion that the circuit court had lacked
subject-matter jurisdiction over the replevin claim because venue was proper in Coahoma
County, where Massey resided and where the personal property at issue was located. Massey
also claimed for the first time that Neely’s complaint had failed to comply with all the
statutory requirements for replevin. Following a hearing, the circuit court denied Massey’s
post-trial motion. Aggrieved, Massey appeals.
STANDARD OF REVIEW
¶9. “When a trial judge sits without a jury,[we] will not disturb his factual determinations
where there is substantial evidence in the record to support those findings. The general rule
is that the [appellate c]ourt will affirm unless the circuit court was manifestly wrong.”
Stratton v. McKey, 298 So. 3d 999, 1002-03 (¶10) (Miss. 2020) (citations and internal
quotation mark omitted). We review questions of law de novo. Id. at 1003 (¶10).
¶10. Here, Neely filed no appellee’s brief. As the Mississippi Supreme Court explained
in Stratton:
[T]wo alternative approaches [exist] for reviewing a case in which the appellee
has neglected to file a brief. First, the Court may accept [the] appellant’s brief
as confessed and reverse. That is the appropriate course of action when the
record is voluminous or complicated and the appellant’s thorough treatment
of the issues in the brief makes out an apparent case of error. The second
alternative is to disregard the appellee[’s] error and affirm. This alternative
should be used when the record can be conveniently examined and such
examination reveals a sound and unmistakable basis or ground upon which the
judgment may be safely affirmed.
Id. at (¶11) (citations and internal quotation marks omitted).
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¶11. The present record is neither voluminous nor complicated. Id. Moreover, Massey’s
appellate brief fails to establish an apparent error in the circuit court’s judgment, and our
examination of the record reveals a sound basis for affirming the judgment. Id. We therefore
decline to accept Massey’s brief as confessed and instead discuss the merits of her arguments
on appeal.
DISCUSSION
I. Venue
¶12. MississippiCode Annotated section 11-37-107 (Rev. 2019) provides that “[t]he action
of replevin may be instituted in the circuit [court] . . . of a county in which the defendant, . . .
or property, or some of the property, may be found, and all proper process may be issued to
other counties.” Massey resides in Coahoma County, and the personal property at issue was
located at her residence in Coahoma County. Thus, Massey contends that the proper venue
for Neely’s replevin complaint was Coahoma County rather than Simpson County and that
the circuit court lacked jurisdiction over the matter.
¶13. Massey first raised the issue of venue in her post-trial motion to set aside the circuit
court’s final judgment. As this Court has stated:
[O]ther than in certain special classes of local actions, venue is not
jurisdictional, and the fact that a case is filed in an improper venue does not of
itself affect the right of the court to hear and determine the case on the merits.
The Mississippi Rules of Civil Procedure make this clear. Rule 12(h)(1)
provides that venue is an affirmative defense that is waived if it is not timely
asserted by motion or answer. And Rule 82(d) provides that when an action
is filed laying venue in the wrong county, the action shall not be dismissed, but
the court, on timely motion, shall transfer the action to the court in which it
might properly have been filed.
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Fluker v. State, 200 So. 3d 1148, 1149 (¶3) (Miss. Ct. App. 2016) (citations, internal
quotation marks, and footnotes omitted). Even before the enactment of section 11-37-107,
our supreme court held that replevin is not included in those special classes of local actions
where venue is jurisdictional. See King v. Ainsworth, 225 Miss. 248, 250, 83 So. 2d 97, 98
(1955). Instead, the King court held that venue could be waived in replevin actions and that
the defendant in King had done so when he failed to object, appeared in the replevin action,
participated in the trial, and failed to apply for a transfer of venue in a timely manner. Id.
¶14. Here, Massey failed to plead improper venue as an affirmative defense or to raise the
issue in a timely filed motion. As the record reflects, Massey never raised improper venue
in a pre-answer motion, her answer to Neely’s complaint, or a motion to transfer venue.
Moreover, Massey appeared in the Circuit Court of Simpson County with her attorney and
participated in a hearing on the merits of Neely’s replevin claim. We therefore find that
Massey waived the issue of improper venue.
II. Claim for Replevin
¶15. Massey also contends that Neely’s complaint failed to comply with the statutory
requirement to provide the value of each article of personal property. In addition, she argues
that the circuit court’s judgment was contrary to the weight of the evidence because the
evidence established that Neely gave her the personal property as gifts. For the sake of
brevity, we address these two assignments of error together.
¶16. To establish his claim for replevin, Neely had to set forth the following: (1) a
description of the personal property at issue; (2) “the value of each separate article and the
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value of the total of all articles”; (3) his entitlement “to the immediate possession” of the
property; (4) Massey’s possession of the property; and (5) Massey’s wrongful retainment of
the property. Miss. Code Ann. § 11-37-101.
¶17. At the hearing, Neely testified that he had stored his personal property in Massey’s
trailer with the expectation that he and Massey would drive the trailer to a show in Las
Vegas. The parties never attended the show, and after they ended their relationship, Neely
testified that he arranged with Massey for her to give his personal items to Sellers. Sellers
confirmed that at Neely’s request, he met Massey in Meridian and spoke with her about
claiming Neely’s items. Sellers testified that Massey knew which personal items he was
inquiring about but stated that she would meet with Neely herself and return the items.
Contrary to Neely’s and Sellers’s testimonies, Massey denied ever meeting with Sellers or
discussing with him the return of Neely’s items. Massey further maintained that Neely had
given her the items in question as completed inter vivos gifts.
¶18. As Massey asserts on appeal, Neely’s complaint failed to provide the specific value
of each article of personal property at issue. The record also reflects that Neely never
provided any testimony or evidence at the hearing regarding each item’s specific value. We
find the omission of any itemized values unsurprising, however, given Massey’s own
testimony that the items were all used and included “old rusted” handguns, “flimsy” and
“rusted” holsters, and “dirty” and “stained” shirts. Further, despite the omission of specific
values for each article, Massey never raised an objection prior to or during the hearing. See
Fairley Constr. Servs. Inc. v. Savage, 265 So. 3d 203, 213 (¶40) (Miss. Ct. App. 2019)
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(recognizing that the failure to object at trial waives the issue on appeal). In addition to
raising no objection, Massey and her attorney actually helped Neely provide the circuit court
with a corrected list of items during the hearing.
¶19. While testifying, Massey stated that certain items included in Neely’s complaint had
never been in her possession. Following Massey’s statement, the circuit court recessed the
hearing and ordered the parties to correct the list of items at issue. When the hearing
resumed, Neely’s attorney moved to mark the corrected list as an evidentiary exhibit. On
cross-examination, Massey confirmed that she and her attorney had agreed to each item
contained on the corrected list and that each of the items was in her possession. As stated,
at no point did Massey raise an objection to the corrected list on the basis that the list failed
to include specific values for each item.
¶20. After considering the parties’ evidence, the circuit court found that Neely had met his
burden of proof for replevin. The circuit court found Neely’s and Sellers’s accounts of
events to be more credible than Massey’s claim that Neely had given her the items at issue
as gifts. “In a bench trial, the trial judge is charged with the responsibility of weighing and
considering the conflicting evidence of the witnesses and determining whose testimony
should be believed.” Williams v. State, 269 So. 3d 192, 195 (¶8) (Miss. Ct. App. 2018)
(quoting Van Norman v. State, 114 So. 3d 799, 802 (¶16) (Miss. Ct. App. 2013)). “We
cannot reweigh the evidence and must defer to the trial judge’s findings of the facts, so long
as they are supported by substantial evidence.” Estate of Burgess v. Trotter, 269 So. 3d 284,
287 (¶10) (Miss. Ct. App. 2018) (quoting Stasher v. Perry, 217 So. 3d 765, 772 (¶31) (Miss.
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Ct. App. 2017)). Upon review, we conclude that substantial record evidence supports the
circuit court’s finding that Neely established his claim for replevin. As a result, we find no
manifest error in the circuit court’s judgment.

Outcome: Because the record reflects substantial credible evidence to support the circuit court’s finding that Neely established his claim for replevin, we affirm the circuit court’s final judgment.

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