Darian A. Pierce v. James "Sam" Sorrells

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-CP-01290-COA

DARIAN A. PIERCE APPELLANT

v.

JAMES “SAM” SORRELLS APPELLEE

DATE OF JUDGMENT: 11/28/2022
TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO
COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: DARIAN A. PIERCE (PRO SE)
ATTORNEY FOR APPELLEE: MICHAEL CLAYTON BAREFIELD
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: AFFIRMED IN PART; REVERSED AND
RENDERED IN PART; REVERSED AND
REMANDED IN PART - 01/02/2024
MOTION FOR REHEARING FILED:

BEFORE CARLTON, P.J., WESTBROOKS AND EMFINGER, JJ.

EMFINGER, J., FOR THE COURT:

¶1. On November 28, 2022, the Lamar County Circuit Court entered an order denying

Darian Pierce’s motion to set aside a judgment and his motion for sanctions, motion to strike,

and motion for a trial “due to novation.” In that same order, the trial court granted James

Sorrells’ motion for sanctions. Pierce asserts that the circuit court erred in denying his

motions and argues on appeal that he was not properly served with process for the hearing

on the motion that resulted in the judgment that he was seeking to set aside. Further, Pierce

claims that he was not in contempt at the time the underlying judgment was entered.

FACTS AND PROCEDURAL HISTORY

¶2. On May 11, 2021, a “Final Agreed Order and Judgments” (agreed judgment) was
entered in this case in the Lamar County Circuit Court. The agreed judgment memorialized

an agreement that the parties reached in mediation. The agreed judgment stated in part that

Sorrells was awarded a judgment against Pierce in the amount of $10,500 to be paid at the

rate of $300 per month beginning June 1, 2021, until paid in full. Further, the agreed

judgment stated that the agreement would remain confidential and sealed. Finally, the agreed

judgment would not be executed upon as long as “the rate of $300, per month [was] paid for

thirty-five months.”

¶3. On September 26, 2022, Sorrells filed a “Petition to Unseal Judgment Herein, For

Citation of Contempt and Sanctions and Entry of Lump Sum Judgment.” In his petition,

Sorrells claimed that Pierce made twelve payments of $300 each but failed to make any

monthly payments since May 2022. Sorrells requested that the judgment be immediately

unsealed and that he be awarded a “Lump Sum Judgment in the sum of $6,900.00.” Finally,

Sorrells sought an award of “all costs of court, costs of litigation, costs of collection, and

attorney fees, in addition to monetary sanctions for contempt. A summons was issued on

September 26, 2022, noticing Pierce that the hearing on Sorrell’s petition would be held on

October 10, 2022 “in the Courtroom of the Honorable Judge Mozingo, Circuit Court Judge,

at the Marion County Courthouse at 250 Broad St., Columbia, Mississippi . . . .” Proof of

service was filed on September 29, 2022, indicating that Pierce was personally served on

September 28, 2022, in Lamar County, Mississippi. Pierce failed to appear at the hearing,

and the circuit court entered an “Order of Contempt & Order to Unseal Judgment” on

October 11, 2022. Finding that Pierce had violated the terms of the judgment and that he

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should be found in contempt, the order stated in part:

IT IS THEREFORE ORDERED AND ADJUDGED the judgment in this
matter, filed under seal (Doc #37), is unsealed, and the clerk is directed to
enroll the Judgment.

IT IS FURTHER ORDERED AND ADJUDGED Darien Pierce is found in
contempt of this Court, and is ordered to be incarcerated until he purges
himself of contempt by paying the remaining balance ($5,700) of the Agreed
Final Order and Judgment, along with $1500 in additional attorney fees, and
court costs of $35, for a total of $7,235.00. Said incarceration is held in
abeyance until further order of the court.

¶4. On October 19, 2022, Pierce filed a motion to set aside this order claiming that he had

not been properly served with process. He further asserted that he was no longer in contempt

because he had paid $1,200 between the date that Sorrells’ petition was filed and the hearing

on October 10, 2022, and was caught up with his monthly payment obligation. Finally,

Pierce contends that while he was behind in his monthly payments, he was unable to pay as

a result of his health issues.

¶5. On November 17, 2022, Sorrells filed a response to Pierce’s motion to set aside and

admitted that Pierce had paid $1,200 before the hearing. Sorrells’ response also claimed that

Pierce had been properly served with process; however, Pierce failed to appear at the hearing.

In furtherance of his argument regarding service of process and monthly payments, Sorrells

attached emails, text messages, and proof-of-payment documents to his response.

¶6. On November 22, 2022, Pierce filed an objection and motion to strike Sorrells’

response and a motion for sanctions. In his pleading, Pierce claimed that Sorrells’ attorney

knowingly, maliciously, and wrongfully utilized and attached protected information to his

response. As such, Pierce requested the response be stricken and sanctions ordered. On

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November 23, 2022, the same day as the hearing, Pierce filed a “Motion for Trial Due to

Novation.” In his pleading, Pierce claimed that his monthly payment obligations were

current and up to date through November 2022.

¶7. A hearing on Pierce’s motions was held on November 23, 2022. The transcript from

the hearing was less than ten pages, and Pierce represented himself. At the onset of the

hearing, the court allowed Sorrells’ counsel to briefly explain what pleadings were before the

court. Following Sorrells’ counsel’s remarks, the trial court turned to Pierce for his

comments. The extent of Pierce’s participation in the hearing is detailed as follows:

BY THE COURT: Let’s stop right there. Thank you for that interpretation.
Is that a correct assessment? Throw out the original
agreed order, give you credit for what you paid and then
go to trial?

BY MR. PIERCE: Do I need to be –

BY THE COURT: Mr. Pierce, you know what, you’re cute. Appreciate it.
Thank you very much. I know you’re cute. Got your
stuff ready. You’re representing yourself, final last
minute motions but don’t embarrass me anymore.

BY MR. PIERCE: I just don’t know –

BY THE COURT: You put –

BY MR. PIERCE: Am I supposed to be sworn in? That’s all I’m asking.

BY THE COURT: You’re going to do it anyway? Stand and be sworn, Mr.
Pierce.

BY MR. PIERCE: May I –

BY THE COURT: No. You may not open your mouth again. I don’t think
you understand.

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BY MR. PIERCE: I don’t know –

BY THE COURT: Well, I’m going to help you in just a second.

After the judge instructed Pierce not to open his mouth again, he did not say another word

for the remainder of the short hearing.

¶8. On November 28, 2022, the trial court entered an order stating,

The Court finds no basis for granting any of the Defendant’s motions, and they
are all denied. The Court further finds the Defendant is ordered to pay an
additional $1,500 to Plaintiff, which represents the attorney fees paid by
Plaintiff for having to respond to the Defendant’s groundless pleadings.

On December 27, 2022, Pierce filed his notice of appeal from the November 28 order.

STANDARD OF REVIEW

¶9. In BB Buggies Inc. v. Leon, 150 So. 3d 90, 95 (¶6) (Miss. 2014), the Mississippi

Supreme Court wrote:

[W]e apply an abuse of discretion standard of review to the circuit court’s
decision on a motion to set aside a default judgment. American States Ins. Co.
v. Rogillio, 10 So. 3d 463, 467 (¶8) (Miss. 2009). Where there is reasonable
doubt as to whether “a default judgment should be vacated, the doubt should
be resolved in favor of opening the judgment and hearing the case on its
merits.” Id. (quoting McCain [v. Dauzat], 791 So. 2d [839,] 843 [(¶10) (Miss.
2001)]).

ANALYSIS

¶10. Pierce is representing himself on appeal and claims that the trial court erred in failing

to set aside the judgment entered on October 11, 2022. Pierce claims that he was not

properly served with the summons for the hearing on Sorrells’ September 2022 petition to

unseal the judgment, for a citation of contempt and sanctions, and for an entry of a “lump

sum judgment.” Pierce further claims that he was not in contempt of the agreed judgment

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on the date of the hearing. Finally, Pierce claims he had “multiple recent physical hardships,

including [six] broken foot bones, cancer and legal blindness that caused a brief interruption

in gainful employment, which caused financial timing issues, not ‘willful, contumacious or

malicious conduct’. . . .”

¶11. As discussed above, a summons was issued on September 26, 2022, noticing Pierce

that the hearing on Sorrells’ petition would be held on October 10, 2022, “in the Courtroom

of the Honorable Judge Mozingo, Circuit Court Judge, at the Marion County Courthouse at

250 Broad St., Columbia, Mississippi . . . .” Proof of service was filed on September 29,

2022, indicating that Pierce was personally served on September 28, 2022, in Lamar County,

Mississippi. Therefore, Pierce’s claim that he was not properly served with process is

without merit.

¶12. Pierce claims that his monthly payment obligation to Sorrells was current on October

10, 2022. In his response to Pierce’s motion to set aside, Sorrells admitted that Pierce paid

$1,200 before the hearing on October 10, 2022. While the record on appeal does not include

the transcript from the hearing on Sorrells’ petition, at the hearing on Pierce’s motion to set

aside on November 23, 2022, Sorrells stated:

[Pierce] was four months in arrears, when we filed first, and then he became
up to date, prior to seeing you in court last, and I told you that then, that he had
paid $1,200. He’s up to – and then he’s paid since. He’s paid twice more
since.

The order held Pierce in contempt and ordered him to pay the remaining balance of $5,700.

This balance recognizes and gives credit for the $1,200 payment that Pierce claimed he made

before the hearing and further corroborates the assertions contained in his petition to set aside

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that he was current with his payments.1

¶13. In his motion to set aside, Pierce also set forth a defense to justify his untimely

monthly payments to Sorrells. Pierce argued that although he was caught up with his

payments at the time of the hearing, he was unable to make the payments in a timely manner

as a result of his recent medical condition. In Braswell v. Braswell, 336 So. 3d 1121,1133

(¶41) (Miss. Ct. App. 2021), this Court stated:

Failure to comply with a court order is prima facie evidence of contempt which
must be shown by clear and convincing evidence. Weeks v. Weeks, 29 So. 3d
80, 86 (¶23) (Miss. Ct. App. 2009). “When the moving party has shown that
the respondent has failed to comply with the judgment, the burden shifts to the
respondent to show that his failure to comply with a court’s decree was not
willful or intentional and without fault.” Id. (internal quotation marks omitted).
“A defendant may avoid a judgment of contempt by [showing] that he is
without the present ability to discharge his obligations.” Wilson v. Stewart,
171 So. 3d 522, 527 (¶16) (Miss. Ct. App. 2014). “We do not know how to
over-emphasize that the law in Mississippi is [that] inability to currently
discharge an obligation in a civil contempt case is a defense to a judgment of
contempt.” Riser v. Peterson, 566 So. 2d 210, 211 (Miss. 1990) (capitalization
omitted). However, the defendant must prove his inability to pay “in particular
terms.” Id.

In the case at hand, the trial court did not allow Pierce to introduce any testimony or speak

at all on his behalf at the hearing. Instead, the trial judge told Pierce that he could not open

his mouth again, and Pierce was not able to argue that he was current in his monthly

payments or the reasoning behind the delay in the payments. In Leavitt v. Carter, 178 So.

3d 334, 339 (¶17) (Miss. Ct. App. 2012), this Court noted:

“A due process violation occurs where a party is not allowed a full and
complete hearing before being deprived of life, liberty or property.” Vaughn

1
However, the judgment did not give Pierce credit for the two additional monthly
payments Sorrells testified he had received.

7
v. Vaughn, 56 So. 3d 1283, 1287 (¶13) (Miss. Ct. App. 2011) (quoting Stuart
v. Stuart, 956 So. 2d 295, 300 (¶23) (Miss. Ct. App. 2006)).

It is clear that Pierce was deprived of due process when the trial court refused to allow Pierce

to testify or put on proof at the hearing on his motion to set aside the default judgment. In

turn, Pierce’s pending motions were all denied and he was assessed with additional attorney’s

fees. We find that the trial court violated Pierce’s procedural due process rights, and we

reverse the decision of the trial court and remand the case for a new hearing on the merits of

Pierce’s motion to set aside the October 10, 2022 judgment.2

¶14. Relying primarily on In re Nichols, 749 So. 2d 68 (Miss. 1999), the dissent would

reverse the trial court’s finding of contempt “[b]ecause a contempt petition is not a proper

means to enforce an ordinary money judgment.” However, because “inability to pay is not

a defense to a failure to pay” an ordinary money judgment, the dissent would affirm the trial

court’s judgment to the extent it ordered the agreed judgment be unsealed and enrolled by

the clerk. Thus, the dissent finds there is no need to address the violation of Pierce’s due

process rights at the hearing on his motion to set aside the judgment.

¶15. We agree with the dissent that contempt is not a proper mechanism for execution upon

a money judgment pursuant to Mississippi Rule of Civil Procedure 69(a), but Sorrells’

motion was not a normal effort to execute upon the judgment. The circuit court’s order

entered on May 11, 2021, awarded a judgment in favor of Sorrells against Pierce in the

amount of $10,500. As noted above, the order provided that the judgment could be satisfied

2
We are remanding for a new hearing on Pierce’s motion to set aside the judgment,
not for a new “contempt” hearing as suggested by the dissent.

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by paying $300 per month, beginning June 1, 2021, for thirty-five months. In addition, the

order prohibited Pierce from executing on the judgment so long as these monthly payments

were made. The order also provided that “the [c]ourt retain[ed] jurisdiction for enforcement

purposes.”

¶16. The record shows that Pierce made the first twelve monthly payments, and then the

monthly payments stopped. Because the order prohibited Sorrells from executing on the

judgment so long as the required payments were made, Sorrells was forced to seek relief

from the circuit court due to Pierce’s violation of the court’s order. Sorrells needed to prove

that Pierce had violated the court’s order so that the court would find Pierce in contempt,

unseal the judgment, allow the judgment to be enrolled, and allow Sorrells to proceed to

execute on the judgment. We find that the court had the inherent power to find Pierce in

contempt for failing to obey the specific order of the court.3 See In re Dunn, 166 So. 3d 475,

3
The dissent recognizes that In re Nichols does not expressly prohibit a court from
finding a debtor in contempt for failing to make payments as ordered by the court. In the
present case, the trial court ordered Pierce to pay Sorrells $10,500, which, normally, Pierce
would have had to pay within ten days of entry of the judgment to avoid immediate
execution on the judgment. See M.R.C.P. 62(a). However, the trial court’s order gave
Pierce the option to avoid execution by making the monthly payments. Pierce did not pay
the full amount of the judgment within ten days; instead, Pierce chose to make monthly
payments. Because he failed to timely make the payments, Pierce was properly found in
contempt for violating the court’s order. The court sanctioned Pierce by unsealing the
judgment, ordering the clerk to enroll the judgment, ordering that he pay the remaining
balance, and ordering that he pay Sorrells attorney’s fees and court costs for bringing the
motion. These were proper sanctions for contempt in this case. See Corp. Mgmt. Inc. v.
Greene County, 23 So. 3d 454, 466 (¶44) (Miss. 2009) (“[W]here a party’s intentional
misconduct causes the opposing party to expend time and money needlessly, then attorney
fees and expenses should be awarded to the wronged party.” (quoting State v. Blenden, 748
So. 2d 77, 87, (¶33) (Miss. 1999))). However, we agree with the dissent that pursuant to In
re Nichols, incarceration is not an available sanction for contempt in this case. Therefore,
we reverse and render that portion of the October 11, 2022 judgment.

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478 (¶11) (Miss. 2012);Corp. Mgmt. Inc. v. Greene Rural Health Ctr. Bd. of Trs., 47 So. 3d

142, 146 (¶15) (Miss. 2010); Barrett v. Jones, Funderburg, Sessums, Peterson & Lee LLC,

27 So. 3d 363, 370 (¶25) (Miss. 2009); Wyssbrod v. Wittjen, 798 So. 2d 352, 368 (¶58)

(Miss. 2001); URCCCP 1.03; M.R.C.P. 70(a) & (d).

¶17. Both Pierce and Sorrells request attorney’s fees associated with this appeal. However,

an award of attorney’s fees is not proper at this time. In Latham v. Latham, 261 So. 3d 1110,

1115-16 (¶23) (Miss. 2019), the Mississippi Supreme Court held:

While the Court has declared that the better practice would be for a party
seeking attorney’s fees on appeal to file a motion in the Court, we now clarify
that Rule 27(a) of the Mississippi Rules of Appellate Procedure requires it.
Here, Michele did not file a motion requesting attorneys’ fees on appeal; rather
she buried a one sentence request in her brief. Such requests do not comport
with the Mississippi Rules of Appellate Procedure.

Because neither party’s request for appellate attorney’s fees comports with Rule 27, we

decline to consider their requests at this time.

CONCLUSION

¶18. After reviewing the record on appeal, we find no merit in Pierce’s claim that he was

not properly served with process on Sorrells’ September 26, 2022 petition to unseal the

judgment. However, we find that Pierce’s procedural due process rights were violated at the

hearing on his motion to set aside the judgment. Therefore, we reverse the trial court’s

November 28, 2022 order denying Pierce’s motions and remand the case for a full hearing

on the merits. However, we reverse and render that portion of the trial court’s judgment

entered on October 11, 2022, ordering that Pierce be incarcerated until he purges himself of

contempt. Further, we decline to consider both Pierce’s and Sorrells’ requests for appellate

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attorney’s fees at this time.

¶19. AFFIRMED IN PART; REVERSED AND RENDERED IN PART; REVERSED
AND REMANDED IN PART.

BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS AND
McDONALD, JJ., CONCUR. McCARTY, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. WILSON, P.J., CONCURS
IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION,
JOINED BY LAWRENCE AND SMITH, JJ.; McCARTY, J., JOINS IN PART.

WILSON, P.J., CONCURRING IN PART AND DISSENTING IN PART:

¶20. I concur that the judgment must be reversed, but I would reverse and render rather

than remand the case for a new hearing. A money judgment should be collected by execution

or garnishment, not by a petition for contempt or under threat of incarceration. I would

affirm the judgment of the circuit court only insofar as it directed the clerk to unseal and

enroll the judgment. Sorrells may enforce the enrolled judgment by execution or

garnishment. See M.R.C.P. 69. But I would reverse and render the circuit court’s finding

of contempt, order of incarceration (held in abeyance), and award of attorney’s fees. The

majority instead holds that a petition for contempt is a proper mechanism for collecting an

ordinary money judgment. I respectfully dissent from this unprecedented holding.

¶21. The original litigation between Sorrells and Pierce culminated in an “Agreed Final

Order and Judgment” that awarded Sorrells a judgment for $10,500. The judgment further

provided, “[T]his judgment may be satisfied at the rate of Three Hundred Dollars per month

beginning on June 1, 2021 and shall not be executed as long as the rate of $300.00[] per

month is paid for thirty-five months.” The judgment also stated that it would “remain

confidential and be sealed.”

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¶22. Pierce paid Sorrells $300 per month for one year but then fell four payments behind.

On September 26, 2022, Sorrells filed a “Petition to Unseal Judgment Herein, for Citation

of Contempt and Sanctions, and Entry of Lump Sum Judgment.” Sorrells argued,

As a result of the willful, contumacious and malicious conduct of . . . Pierce
. . . in violating and refusing to comply with this Court’s . . . Agreed Final
Order and Judgment, . . . Pierce . . . should be cited for contempt, incarcerated
in the Lamar County Jail until he purges himself of contempt by paying the
remaining balance of the . . . Agreed Final Order and Judgment, be otherwise
sanctioned and the Court should, further, award [Sorrells] . . . all costs of
court, costs of litigation, cost of collection and attorney fees, in addition to
monetary sanctions for contempt.

Sorrells also asked that the judgment be unsealed and entered on the judgment roll.

¶23. By September 30, 2022, Pierce had paid Sorrells $1,200 for the four late payments.

Nonetheless, on October 11, 2022, the circuit court found Pierce “in contempt of [court]” and

“ordered [Pierce] to be incarcerated until he purge[d] himself of contempt by paying the

remaining balance ($5,700) of the Agreed Final Order and Judgment, along with $1500 in

attorney fees and court costs of $35, for a total of $7,235.00.” The court’s order stated that

Pierce’s “incarceration [would be] held in abeyance until further order of the court.” The

court also unsealed the judgment and directed the clerk to enroll it.

¶24. Eight days later, Pierce filed a motion to set aside the judgment of contempt. After

the hearing described in the majority opinion, the circuit court denied Pierce’s motion and

ordered Pierce to pay Sorrells an additional $1,500 in attorney’s fees. The court’s order did

not address Pierce’s held-in-abeyance incarceration. Pierce then filed a notice of appeal.

¶25. The Mississippi Supreme Court addressed a similar scenario in In re Nichols, 749 So.

2d 68 (Miss. 1999). In that case, Clyde and Elsie Rutledge sued John and Robbie Nichols

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and ultimately obtained an “agreed judgment” against the Nicholses that required the

Nicholses to make an initial payment and pay the remaining balance of the judgment in

thirty-six monthly installments. Id. at 69-70 (¶3). “The judgment also specifically

acknowledged that the chancery court would retain jurisdiction over the matter for purposes

of enforcing the judgment.” Id. at 70 (¶3). When the Nicholses failed to make payments that

the judgment required, the Rutledges filed a petition for a citation of contempt. Id. at (¶4).

The Nicholses moved to dismiss the contempt petition, arguing that it violated Section 30 of

the Mississippi Constitution, which provides that “[t]here shall be no imprisonment for debt.”

Id. The chancery court denied the motion to dismiss, found that the Nicholses were in willful

contempt, and ordered that John would be incarcerated if he failed to make delinquent

payments under the judgment within five days. Id. John then filed a petition for

extraordinary relief in the Mississippi Supreme Court, asking the Court to vacate the

chancery court’s ruling. Id. at (¶5).

¶26. The Supreme Court held that the judgment against the Nicholses was a “debt” within

the meaning of Section 30’s prohibition against “imprisonment for debt.” Id. at 72 (¶¶10-

11). The Court explained that Section 30’s prohibition does not apply to judgments requiring

the payment of alimony or child support or to orders to pay money imposed as part of a

criminal sentence. Id. at 70-72 (¶¶7, 10). But the Court rejected the Rutledges’ argument

that the “agreed judgment” fit within any exception to Section 30. Id. at 72 (¶¶10-11).

Instead, the agreed judgment was an “ordinary . . . money judgment” and an “ordinary civil

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debt.” Id.4 Therefore, the Court held that “to imprison [John] for the non-payment of [the]

judgment would violate” Section 30, and the Court “vacate[d] the order of the chancery court

finding [John] in contempt and ordering him incarcerated.” Id. at (¶11). In the final sentence

of its opinion, the Supreme Court stated, “The Rutledges are free to collect the judgment by

execution, garnishment or any other available lawful means so long as it does not include

imprisonment.” Id.

¶27. Put simply, In re Nichols makes clear that a court may not jail a party for nonpayment

of an ordinary money judgment. Id. Thus, Pierce clearly cannot be incarcerated for not

paying Sorrells. Accordingly, the circuit court clearly erred to the extent that it ordered

Pierce “to be incarcerated,” even if the court also held his incarceration “in abeyance until

further order of the court.” The circuit court’s judgment should be reversed and rendered to

that extent.

¶28. Moreover, although In re Nichols does not directly address the issue, the opinion

implies that a petition for contempt is not a proper mechanism for enforcement of an ordinary

money judgment. In In re Nichols, the Supreme Court granted extraordinary relief and

vacated “the chancery court’s contempt order” in its entirety, not just the part ordering

4
The Supreme Court held that the agreed judgment was an “ordinary . . . money
judgment” and an “ordinary civil debt” even though—just as in this case—it was
“negotiated,” required the Nicholses to make installment payments for three years, and
specifically provided that the chancery court would retain jurisdiction over the case for
enforcement purposes. In re Nichols, 749 So. 2d at 69-70, 72 (¶¶3, 10-11). Citing the
essentially identical features of the agreed judgment in this case, the majority opinion states
that this “was not a normal effort to execute upon the judgment” and, therefore, that a
petition for contempt was proper. Ante at ¶15. However, the Supreme Court made clear that
this sort of judgment is nothing “but an ordinary civil debt in the form of an agreed
judgment.” In re Nichols, 749 So. 2d at 72 (¶11).

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incarceration. Id. at 69 (¶1); accord id. at 72 (¶12). The Supreme Court also stated that

“[t]he Rutledges [were] free to collect the judgment by execution, garnishment or any other

available lawful means so long as it does not include imprisonment.” Id. at 72 (¶11). The

Court did not suggest that a petition for contempt was a proper means for collecting the

judgment.

¶29. Other courts have held that the court’s contempt power may not be used to enforce an

ordinary money judgment. For instance, the United States Court of Appeals for the Eleventh

Circuit has stated, “It is . . . clear that when a party fails to satisfy a court-imposed money

judgment the appropriate remedy is a writ of execution, not a finding of contempt.” Combs

v. Ryan’s Coal Co., 785 F.2d 970, 980 (11th Cir. 1986). The United States District Court for

the Southern District of New York similarly held that the court’s “contempt power should

not be used to enforce a money judgment.” Ecopetrol S.A. v. Offshore Expl. & Prod. LLC,

172 F. Supp. 3d 691, 698 (S.D.N.Y. 2016). The Indiana Supreme Court has held that

“because parties may enforce obligations to pay a fixed sum of money through execution as

provided in [Indiana Rule of Trial Procedure] 69, all forms of contempt are generally

unavailable to enforce an obligation to pay money.” Cowart v. White, 711 N.E.2d 523, 531

(Ind. 1999). As one writer summarizes the issue, “except for highly preferred debts such as

the support of children and spouses, courts . . . will not enforce money judgments with the

contempt power. . . . The rule is simply that we do not use the contempt power to coerce the

payment of money.” Douglas Laycock, The Death of the Irreparable Injury Rule, 103 Harv.

15
L. Rev. 687, 698-99 (1990) (footnotes omitted) (collecting cases).5

¶30. We should follow the same rule in this State. Mississippi Rule of Civil Procedure 69

and statutes provide for the enforcement of ordinary money judgments by execution and

garnishment. M.R.C.P. 69; In re Nichols, 749 So. 2d at 72 (¶11). There is no compelling

reason to authorize petitions for contempt as an additional means of collection.

¶31. Because a contempt petition is not a proper means to enforce an ordinary money

judgment, I would reverse and render the circuit court’s judgment to the extent that it found

Pierce in contempt, ordered him to be incarcerated (held in abeyance), and awarded

attorney’s fees to Sorrells. I would affirm the judgment only insofar as it unsealed the agreed

judgment and directed the clerk to enroll the judgment on the judgment roll. Pierce’s alleged

inability to pay is not a defense to an ordinary money judgment.6

5
See also, e.g., Bald, Fat & Ugly LLC v. Keane, 303 P.3d 166, 170 (Idaho 2013)
(“The contempt power . . . is generally not available for the enforcement of . . . money
judgments.”); Sehlstrom v. Sehlstrom, 925 N.W.2d 233, 240 (Minn. 2019) (“[A] contempt
motion [is] not a proper enforcement mechanism [for a money judgment]. Rather, the
remedy provided by [Minnesota Rule of Civil Procedure 69] is a writ of execution. There
is good reason for this rule. To hold otherwise . . . would allow a creditor to invoke a
court’s contempt power to collect ordinary judgment debts; this outcome is problematic, at
best, given the prohibition in the Minnesota Constitution against imprisonment for failure
to pay debts.”); Hill v. Paluzzi, 581 S.E.2d 730, 732 (Ga. Ct. App. 2003) (“Although courts
may enforce their orders through contempt proceedings, they cannot use their contempt
power to compel compliance with a money judgment.”); Verrett v. Alston, No. 2010-CA-
1537, 2011 WL 9165435, at *1 (La. App. 4 Cir. Mar. 16, 2011) (unpublished) (holding that
a money judgment may be enforced by execution as provided by law, but “[t]he trial court
ha[s] no authority to enforce the payment of a money judgment through its contempt
powers”).
6
As the Supreme Court held, the type of agreed judgment at issue in this case is
nothing “but an ordinary civil debt in the form of an agreed judgment.” In re Nichols, 749
So. 2d at 72 (¶11). Inability to pay is not a defense to an “ordinary civil debt.”

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¶32. The majority instead remands the case for a new contempt hearing with instructions

that Sorrells may recover attorney’s fees if he prevails but that Pierce may assert a defense

of inability to pay based on an alleged “medical condition.” Ante at ¶13 & n.3.7 This is a

mistake. A party is not entitled to recover attorney’s fees for his efforts to collect an ordinary

money judgment, and inability to pay is not a defense to a failure to pay such a judgment.

We should bring the case to an end and leave Sorrells to collect the enrolled judgment by

execution, garnishment, or other lawful means. In re Nichols, 749 So. 2d at 72 (¶11).

Accordingly, I respectfully dissent in part.

LAWRENCE AND SMITH, JJ., JOIN THIS OPINION. McCARTY, J., JOINS
THIS OPINION IN PART.

7
The majority makes a point to state that it is “remanding for a new hearing on
Pierce’s motion to set aside the judgment, not for a new ‘contempt’ hearing.” Ante at n.2.
Maybe so, but I doubt this distinction has any real practical or legal significance. As I read
the majority opinion, it remands the case for a new hearing at which Pierce may present
evidence of his alleged inability to pay in order to show that he should not have been held
in contempt. See ante at ¶13. That sounds a lot like a contempt hearing.

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