¶1. This dispute stems from the clean-up efforts on the Mississippi Gulf Coast due to the Deep Water Horizon BP oil spill in 2010. Gulfstream Enterprises Inc. (Gulfstream) sued Knights Marine & Industrial Services Inc. (Knights) under the open-account statute in the County Court of Jackson County, alleging Knights failed to pay the full balance owed to Gulfstream for providing a crew-transport vessel with a captain and crew. Gulfstream later amended its complaint to add a breach-of-contract claim. After a bench trial, the county court entered: (1) a judgment in favor of Gulfstream for $143,881.01 in compensatory damages; (2) pre-judgment interest of eight percent per annum from the date Gulfstream filed its original complaint through the entry of judgment, totaling $10,122.92; (3) post-judgment interest of eight percent per annum; and (4) attorney's fees and expenses totaling $9,274.74; for a total judgment of $163,278.67. Gulfstream's request for punitive damages was denied.
¶2. Knights appealed to the Jackson County Circuit Court, and Gulfstream cross-appealed on the issues of pre-judgment interest, punitive damages, and Knights's garnished funds to secure judgment. The circuit court affirmed the county court's judgment in all respects.
¶3. Knights now appeals to this Court, and Gulfstream cross-appeals. Gulfstream claims the county court should have awarded pre-judgment interest starting on the date Knights failed to pay Gulfstream's outstanding invoices, not the date Gulfstream filed suit. Gulfstream also argues the county court erred in not awarding punitive damages, and in ordering Knights's funds, which had been successfully garnished by Gulfstream, to be deposited in the court registry instead of immediately disbursed to Gulfstream. A request for attorney's fees for the appeal and post-judgment collection efforts was made by Gulfstream as well.
¶4. On direct appeal, we affirm the $143,881.01 award to Gulfstream under the open-account statute. On cross-appeal, we affirm the denial of punitive damages to Gulfstream, but reverse and remand for the circuit court to determine the amount of pre-judgment interest and Gulfstream's fees related to post-judgment-collection efforts and defending this appeal.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶5. As part of the clean-up efforts from the Deep Water Horizon oil spill, BP retained the services of numerous contractors, including United States Environmental Services LLC (USES). On May 31, 2010, USES contracted with Knights
¶6. From July 8, 2010, until December 4, 2010, Gulfstream claimed the vessel was available to provide whatever support or services USES needed. Gulfstream admitted that sometimes the vessel was on standby and not working, as either it was awaiting directions from USES or there were unsafe marine conditions. The vessel's activity was recorded daily in the captain's logs. However, starting on September 30, 2010, Knights claimed Gulfstream's vessel was not in operation at all but had been removed to a staging area for repairs and maintenance. The captain's logs do not provide any details about the vessel's activities from September 30 through December 5, 2010. Yet it is undisputed that Gulfstream invoiced Knights weekly for services, fuel, and other charges, whether the vessel was on standby or working. Knights, in turn, submitted a weekly invoice to USES for payment, charging USES $2,900 per day for the vessel, or a $500 markup from the amount Gulfstream billed Knights.
¶7. Gulfstream pointed out that during this time, the vessel could not be used for any other job or purpose, and it never was. Ultimately, Gulfstream contended Knights owed an outstanding balance of $143,881.01
¶8. On July 23, 2013, Gulfstream sued Knights under the open-account statute of Mississippi Code Annotated section 11-53-81 (Rev. 2012), and later amended the complaint to include a breach-of-contract claim. The parties waived their right to a jury trial. Testifying at the one-day bench trial in the Jackson County County Court were Greg Ladnier, president of Gulfstream; Will Ladnier, Greg's brother and boat captain; David Knight, Knights's chief financial officer and fifty-percent shareholder; and Eric Hoffman, chief financial officer of USES.
¶9. After the judgment was entered, Gulfstream tried to collect its judgment. An agreed order allowed Knights additional time to appeal to the circuit court and post a supersedeas bond. A stay was entered upon execution of the judgment, and bond was set at 125% of the total judgment, or $204,098.34. After the stay expired, Gulfstream filed petitions for writ of garnishment to several financial institutions in Jackson County to secure the judgment. All funds garnished from Knights's bank accounts were tendered to the registry of the Jackson County Circuit Court. The court ordered that once cash reached 125% of the judgment, the funds served as a supersedeas bond and stayed the judgment. Gulfstream filed a motion to disburse these funds, but it was denied.
¶10. Knights appealed, and Gulfstream cross-appealed to the Jackson County Circuit Court, which affirmed the county court's rulings. Appeal and cross-appeal were then taken to this Court.
I. Damages Under the Open-Account Statute
¶11. Knights argues that the county court erred in awarding $143,881.01 in compensatory damages to Gulfstream under the open-account statute because there were no services rendered for some of the invoices submitted, and Gulfstream was never entitled to a "standby rate" for the vessel. We disagree, and find sufficient evidence for the county court's award of compensatory damages.
¶12. The county court is the finder of fact, and both the circuit court and this Court are bound by the county court's judgment if supported by substantial evidence and not manifestly wrong. CEF Enters. Inc. v. Betts, 838 So.2d 999, 1002 (¶10) (Miss. Ct. App. 2003) (citations omitted). Moreover, "[a] judge sitting without a jury has sole authority for determining credibility of the witnesses." Byrd Bros. LLC v. Herring, 861 So.2d 1070, 1073 (¶14) (Miss. Ct. App. 2003) (quoting Rice Researchers Inc. v. Hiter, 512 So.2d 1259, 1265 (Miss. 1987)).
¶13. There is no dispute that the relationship between Knights and Gulfstream involved an open account under section 11-53-81. An open account is generally "an account based on continuing transactions between the parties which have not been closed or settled but are kept open in anticipation of further transactions." Mauldin Co. v. Lee Tractor Co. of Miss., 920 So.2d 513, 515 (¶9) (Miss. Ct. App. 2006) (quoting Westinghouse Credit Corp. v. Moore & McCalib Inc., 361 So.2d 990, 992 (Miss. 1978)). "[A]n open account must contain a `final and certain agreement on price.'" Douglas Parker Elec. Inc. v. Miss. Design & Dev. Corp., 949 So.2d 874, 877 (¶8) (Miss. Ct. App. 2007) (quoting McLain v. W. Side Bone & Joint Ctr., 656 So.2d 119, 123 (Miss. 1995)). Our supreme court has recognized that "a collection for recovery, on an open account, amounts to a collection action where the debt is based on a series of credit transactions." Franklin Collection Serv. Inc. v. Stewart, 863 So.2d 925, 930 (¶14) (Miss. 2003). In an open-account action, the date of purchase, the kind of goods, the quantity, and the price must be shown. Motive Parts Warehouse Inc. v. D&H Auto Parts Co., 464 So.2d 1162, 1165 (Miss. 1985) (citation omitted).
¶14. Knights argues that in order for it to owe Gulfstream under the open account, there must have been work performed as part of a series of transactions between the parties. Knights contends that Gulfstream provided no evidence of any work performed by the vessel or any expenses incurred from September 30 through December 5, 2010. Moreover, Knights claims there was no contract or "standby rate," but merely a purchase order indicating the $2,400-per-day rate. David Knight testified even if there were a standby rate, it would generally be one-third to one-half the daily rate. Knights contends Gulfstream's invoices are fraudulent because Gulfstream cannot show it worked during this time-frame.
¶15. Undisputably, Will testified that there were "definitely standby days" when the weather was unsafe, or the boat needed maintenance. However, he claimed the standby rate was the same as the day rate, because Gulfstream could not use the boat for any other job — it had to be ready to work for USES. Greg also affirmed this point, but admitted that there was nothing in writing about a "standby rate" — it was just a "default understanding."
¶16. The daily captain's logs entered into evidence also show periods of time when the vessel was not actively working on the cleanup project. From July 2010 until the end of September 2010, Gulfstream's daily logs are very detailed about the vessel's numerous activities. However, from September 30 to October 9, 2010, the log shows "foul weather" and "preventative maintenance was performed during downtime." During this period Will testified that the boat was in dry storage being sandblasted but claimed the vessel could be back in the water in less than an hour for use. Will stated that Gulfstream coordinated with USES's schedule to make sure its maintenance did not interfere with any possible work — when USES put Gulfstream on standby, Gulfstream would do the maintenance, so it "never missed a lick."
¶17. Will testified that from October 31 through December 5, 2010, Gulfstream was not performing any tasks for USES, but was on standby status. During this period, the daily captain's logs had the same entry: "continued support" for transporting supplies to the various barrier islands. Gulfstream contends it was obligated to have the vessel available should USES need it; thus, the vessel was not available for any other entity, and Gulfstream was owed payment for these days. Gulfstream further claimed the vessel was always available seven days a week for twelve hours per day for USES. However, Knights argues that this availability was merely a business decision on Gulfstream's part. Yet neither USES nor Knights had any complaints about Gulfstream's performance or availability on the project.
¶18. As the circuit court noted, whether or not Gulfstream performed the work is a question for the fact-finder (here the county court), and does not change the legal status of the relationship. Gulfstream's invoices to Knights do not specify a standby rate or any exclusions.
¶19. Based upon the evidence, we cannot say the county court abused its discretion in awarding Gulfstream compensatory damages of $143,881.01.
II. Pre-Judgment Interest
¶20. The county court awarded Gulfstream $10,122.92 in pre-judgment interest, at eight percent per annum. Gulfstream argues that the county court erred in calculating the interest from the date Gulfstream filed its complaint, instead of the date Knights breached the unwritten contract. It also claims that the circuit court erred in finding the claim was not liquidated before judgment. We affirm the county court's award of pre-judgment interest to Gulfstream, but remand for its computation from the date Knights failed to pay the purchase-order invoices.
¶21. Interest on judgments is governed by Mississippi Code Annotated section 75-17-7 (Rev. 2016):
Open accounts are a form of contract. "Suits on open account[s] are always contractual matters, because an underlying contract must exist for the open account to exist. . . . `[A]n open account is an unwritten contract.'" Lyons & Assocs. P.A. v. v. Precious T. Martin Sr. & Assocs. PLLC, 87 So.3d 444, 453-54 (¶33) (Miss. 2012) (quoting McArthur v. Acme Mech. Contractors Inc., 336 So.2d 1306, 1308 (Miss. 1976)). An award of pre-judgment interest is not rationally made "where the principal amount has not been fixed prior to judgment." Stanton & Assoc. Inc. v. Bryant Constr. Co., 464 So.2d 499, 504 (Miss. 1985).
¶22. Here, the parties were operating under an open account, a type of unwritten contract; thus, Gulfstream should be granted pre-judgment interest if Knights's debt was liquidated. We disagree with the circuit court's finding that it was not. A debt is liquidated when it is "agreed on by the parties, readily determinable or fixed by operation of the law." Johnny C. Parker, Mississippi Law of Damages § 4:1 (3d ed. 2014) (citing Woodmansee v. Garrett, 247 Miss. 148, 153 So.2d 812 (1963)). The invoices and financial documents entered into evidence all indicate Knights's liability as $143,881.01—the disputed issue is whether the amount was owed at all. This situation is similar to T.C.B. Construction Co. v. W.C. Fore Trucking Inc., 134 So.3d 701, 705 (¶13) (Miss. 2013), where unpaid invoices — not the amount of the unpaid invoices — constituted the liability for breach of contract, and were thus considered liquidated. In T.C.B., Fore Trucking entered into a contract with T.C.B. to remove debris north of Highway 53 after Hurricane Katrina. Id. at 702-03 (¶2). Later, T.C.B. performed debris removal south of Highway 53 as well at the request of Fore's principal, but Fore refused to pay, as this work "was not contemplated by the contract." Id. at 703 (¶4). Evidence surfaced that Fore had submitted T.C.B.'s invoices to Harrison County and been paid in full for all debris removal — at a total of $12.3 million. Id. After a jury trial, T.C.B. was awarded compensatory damages, but the circuit court awarded prejudment interest from the date the complaint was filed. Id. at (¶6). This Court reversed on that issue, awarding interest from the date of breach, and the Mississippi Supreme Court affirmed us in that regard. Id. at (¶7), 706 (¶15).
¶23. In the instant case, the same principles apply. We affirm the grant of pre-judgment interest, but reverse as to the date pre-judgment interest begins and remand to the circuit court for a calculation of pre-judgment interest from the date the breach occurred.
III. Punitive Damages
¶24. Gulfstream argues that the county court's denial of punitive damages was error because Knights deliberately delayed or withheld payment from Gulfstream; specifically, Gulfstream contends that Knights's conduct was malicious because it withheld a percentage of payments from Gulfstream's invoices, even though USES had paid Knights the full amount. In 2012, Knights requested Gulfstream take a ten-to-twenty-percent discount from the balance owed because BP did not pay USES all of the retainer being held; thus, USES and Knights did not receive full payment for the invoices.
¶25. An award of punitive damages is within the discretion of the trier of fact. Bar-Til Inc. v. Superior Asphalt Inc., 164 So.3d 1028, 1031 (¶14) (Miss. Ct. App. 2014).
T.C.B., 134 So. 3d at 704 (¶9) (internal and end citations omitted). In determining whether punitive damages are appropriate, the judge "decides whether, under the totality of the circumstances and viewing the defendant's conduct in the aggregate, a reasonable, hypothetical trier of fact could find either malice or gross neglect/reckless disregard." Bar-Til, 164 So. 3d at 1031 (¶14) (quoting Ciba-Geigy Corp. v. Murphree, 653 So.2d 857, 863 (Miss. 1994)).
¶26. Here, the trier of fact was the county-court judge, who denied punitive damages. The circuit court, in affirming the county court, cited Dynasteel Corp. v. Aztec Industries Inc., 611 So.2d 977, 985 (Miss. 1992), for the proposition that in open-account cases, it would be rare to find the "intentional wrong, insult, abuse, or such gross negligence," as could be found in a traditional breach-of-contract case. In that case, the Mississippi Supreme Court said:
¶27. The county court's denial of punitive damages was proper. The trier of fact could easily have found that Knights did not act with a sufficient level of malice to warrant them. Knights paid Gulfstream $252,782.85 of the $396,654.86 Gulfstream billed. Knights was taking a reduction in funds received from USES because USES was taking a reduction from BP, not to mention the delay in payments due to BP's auditing procedure. The record indicates Knights attempted to negotiate a settlement with Gulfstream starting in July 2012 through April 2013, and was nearly successful until Gulfstream insisted the offer of $129,492.92 be paid within ten days. We cannot find that the county court erred in denying punitive damages.
IV. Garnishments and Supersedeas Bond
¶28. Gulfstream argues that the county court erred in ordering Knights's funds, successfully garnished by Gulfstream, to be deposited in the court registry in lieu of Knights's posting a supersedeas bond, and also in later denying the funds' disbursement to Gulfstream.
Tupelo Redev. Agency v. Gray Corp., 972 So.2d 495, 524 (¶91) (Miss. 2007) (emphasis added) (citation omitted). The supersedeas bond should be in the amount of 125% of the judgment. M.R.A.P. 8(a); URCCC 5.08. To stay the execution of judgment, "[t]he court shall require the giving of security by the appellant in such form and in such sum as the court deems proper. . . ." M.R.A.P. 8(b)(1). "The trial court . . . may approve security in the form of a cash or property bond." M.R.A.P. 8 cmt. The standard of review regarding the posting of a supersedeas bond is abuse of discretion.
¶29. On July 10, 2014, the county court ordered a stay of execution on the judgment until July 16, 2014. Knights had not posted a supersedeas bond by that date, and Gulfstream began garnishing Knights's assets at numerous financial institutions, which successfully yielded $205,813.07. On July 22, 2014, the county court ordered the attached funds to be deposited in the Jackson County Circuit Court registry to replace the bond requirement, which was $204,098.34.
¶30. It is undisputed that Knights never obtained a supersedeas bond. However, here, the county court's requiring the garnished funds be deposited in the court registry had the same effect as a supersedeas bond — to provide absolute security to Gulfstream. The amount deposited was approximately $1,700 more than the 125%-of-the-judgment bond requirement. As the circuit court and Knights remarked, Gulfstream is probably more secure with the cash deposit than the bond. Additionally, Rule 8(b) allows the court to create judgment security "in such a form and in such a sum as the court deems proper." The garnishment statute allows for garnished funds to be used to satisfy a judgment under court order. Therefore, we cannot find the county court abused its discretion in ordering the funds be deposited in the court registry in lieu of a supersedeas bond, or denying immediate disbursement of these funds.
V. Post-Judgment Attorney's Fees
¶31. Gulfstream requests attorney's fees and costs for its post-judgment collection efforts and this appeal. Under the open-account statute, a defendant "shall be liable for reasonable attorney's fees to be set by the judge for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the plaintiff." Miss. Code Ann. § 11-53-81. We find it reasonable to award Gulfstream its attorney's fees for post-judgment collection efforts that resulted in the garnishments. Further, we find that Gulfstream's attorney's fees in defending the appeal would be proper under the statute; our usual practice in such instances is to award fees equal to "one-half of what was awarded in the trial court." See Bailey v. Chamblee, 192 So.3d 1078, 1083 (¶16) (Miss. Ct. App. 2016) (citation omitted). We grant one-half of the attorney's fees and expenses awarded to Gulfstream by the circuit court, and remand to the circuit court for a calculation of those fees and of the attorney's fees for post-judgment collection efforts.
2 Jeffrey Jackson et al., Mississippi Civil Procedure § 19:26 (2016) (discussing Mississippi Rule of Civil Procedure 62 stay of proceedings to enforce a judgment).