text:
    STATE of Louisiana v. Julius C. MURRAY
    NO. 17-KA-534
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Anne M. Wallis, New Orleans, Jennifer C. Voss
    COUNSEL FOR DEFENDANT/APPELLANT, JULIUS C. MURRAY, Jane L. Beebe
    Panel composed of Judges Jude G. Gravois, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore
   LILJEBERG, J.

Defendant appeals his convictions and sentences for two counts of pandering. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Defendant was charged by bill of information with two counts of pandering, in violation of La. R.S. 14:84. He was arraigned and pleaded not guilty. Defendant filed motions to suppress the evidence, which were denied after a hearing. Thereafter, defendant withdrew his not guilty pleas and pleaded guilty as charged under State v. Crosby , 338 So.2d 584 (La. 1976). The trial judge sentenced him to imprisonment at hard labor for four years on each count, to run consecutively. Defendant appeals.

Because defendant pleaded guilty, the underlying facts were not fully developed at a trial. Nevertheless, the State alleged in the bill of information that on or between March 31, 2016 and June 7, 2016 (count one), and on or between March 11, 2016 and June 7, 2016 (count two), defendant, in Jefferson Parish, violated La. R.S. 14:84 in that he did entice, place, persuade, encourage, or cause the entrance of any person into the practice of prostitution, either by force, threats, promises, or by any other device or scheme, and/or maintain a place where prostitution is habitually practiced, and/or transport any person from one place to another for the purpose of promoting the practice of prostitution. The State later indicated that count one involved J.D. and count two involved E.R.

Testimony from the motion to suppress hearing and evidence in the record reveals that the Jefferson Parish Sheriff's Office ("JPSO") was conducting an investigation into human trafficking and prostitution, among other things. Detective William Meetze of the JPSO vice crime squad testified that he was working undercover and set up a "date" with a certain female, J.D., at the Super 8 Motel in Metairie, Louisiana. After meeting with her at the motel, Detective Meetze arrested J.D. for prostitution. According to Detective Meetze, he advised J.D. of her rights, and J.D. said she understood her rights and wanted to make a statement. J.D., who had visible injuries to her facial area, arm, and ear, told the detective that she had suffered violence at the hands of defendant, that defendant had been her "pimp" for about four years, and that he forced her into prostitution. After J.D. positively identified defendant in a photographic lineup, officers located defendant at the Sleep Inn Hotel and arrested him.

LAW AND DISCUSSION

In his sole assignment of error on appeal, defendant argues that the trial judge erred by denying his motion to suppress evidence. He contends that the officer erroneously arrested him and searched his hotel room without a warrant. Defendant asserts that he gave no consent to search the room, and there were no exigent circumstances such as destruction of evidence to justify the warrantless search of these items. Defendant maintains that even though the electronic items were in plain view, they were not clearly contraband.

Defendant further maintains that the search warrants issued for the electronic items seized were defective. He claims that in the sworn affidavit, the officer omitted key items of material fact designed to mislead the commissioner in order to justify a search of the improperly seized electronic items. Defendant argues that the officer omitted important facts from the application, including that J.D. had a lengthy criminal history of prostitution and that the Super 8 motel room had not been rented to defendant but was rented to a Hispanic male the day before the police arrested defendant.

At the hearing on the motion to suppress evidence on March 24, 2017, Detective Meetze and Sergeant Keith Locascio of the JPSO testified. During their testimony, four applications for search and seizure warrants were admitted into evidence. Each application contains the same narrative of the events in this matter as follows:

On Wednesday, April 6th, 2016 members of the Jefferson Parish Sheriff's Office Vice Squad were conducting an investigation into the illegal escort services providing prostitution on the Eastbank of Jefferson Parish.
Detective William Meetze searched the internet websites that are popular for prostitution advertisements. Detective Meetze located an escort/prostitute from the Backpage.com website. Members of the Vice Squad are familiar with this website as they have utilized this website and conducted numerous investigations into illegal prostitution in the past. Detective Meetze utilized the phone number in the advertisement (251-263-xxxx) and while in an undercover capacity, called the phone number. Detective Meetze spoke with a female subject, who identified herself as "Sophia", and requested an incall (a service where the customer/client goes to the escort/prostitute). "Sophia" advised Detective Meetze to proceed to the Super 8 Motel, located at 2421 Clearview Parkway in Metairie and to call her back once he arrived.
Upon arrival, Detective Meetze re-established contact with "Sophia" via the phone number in the advertisement. Upon making contact with "Sophia", she advised Detective Meetze to come to room 224.
Detective Meetze arrived at room 224 and was met by a white female who introduced herself as "Sophia" and invited him in. Upon seeing "Sophia", Detective Meetze immediately noticed "Sophia" to have several bruises to her right eye/facial area and her chin. Detective Meetze also noticed that "Sophia" caked makeup on these areas in an attempt to conceal the bruises. Once inside room 224, "Sophia" solicited Detective Meetze for sexual intercourse in exchange for $120.00 in U.S. Currency. After giving the code alerting cover detectives that a crime had been committed, detectives placed "Sophia" under arrest, advised her of her rights, and identified her as J.D., W/F 11/09/1995. Detectives checked the hotel room and located a white colored Apple iPhone phone, Model A1453, Serial Number F2LRC1E3FFDN, Phone Number (504) 777-xxxx, on the nightstand. J.D. freely advised that the Samsung flip phone is the cell phone that she uses to make all her dates with, including the date made with Detective Meetze. J.D. also advised that the phone number that Detective Meetze called is through a phone application known as "Sideline."
J.D. indicated that she wished to cooperate with detectives and advised that she was brought to the New Orleans area by her pimp. J.D. then identified her pimp as Julius Murray, B/M 8/11/1981, and advised that he forces her to conduct prostitution dates which he receives all of the proceeds from the dates. J.D. stated that she was tired of being beaten by Murray and displayed additional bruises to her arms, behind her left ear, and in her left ear. J.D. relayed that she met Murray approximately four years ago when he recruited her for prostitution. J.D. explained that Murray promised her lots of money and material things and allowed her to keep most of the money made in the beginning but that things changed shortly thereafter. J.D. said that she was then forced into prostitution and that Murray was never content with her, which would result in Murray being violent with her by physically abusing her and threatening her while displaying a handgun at times.
J.D. advised that she and Murray came to New Orleans and on March 31st, 2016 Murray rented a room at the Sleep Inn and Suites, located at 4601 N I10 Service Road in Metairie. J.D. advised that Murray posted advertisements on Backpage.com in the escort section. Once a client would call, Murray would direct her on how to fix her hair and what to wear. J.D. said that if a white guy would arrive driving a nice car, she would be required to get as much money from him as possible, by raising the price of the date or asking for a tip. J.D. advised that she had several dates while at the Sleep Inn and Suites and that Murray decided to get a second hotel room at a different hotel in an attempt to conceal their nefarious activities from hotel management.
On April 3rd, 2016 Murray rented a hotel room at the Super 8 Motel, located at 2421 Clearview Parkway in Metairie. J.D. advised that on the evening of April 3rd, Murray posted her advertisement in the escort section of Backpage.com. J.D. advised that Murray did not inform her of his intentions, therefore she fell asleep. J.D. said that she missed several telephone calls of potential clients during that time. Because of this, Murray became very irate with her and began to strike her in the face and head area with a closed fist. J.D. advised that she was able crawl [sic] under the vanity in the bathroom where Murray could no longer strike her with his fist. J.D. said that Murray then began to kick her and kicked her several times in the chest area. Murray then dragged her from under the vanity and continued to strike her until she lost consciousness. J.D. said that when she came to, Murray grabbed her by the hair, forced her head against the wall, and pressed a black colored semi-auto handgun into her left ear while stating "Bitch don't play with me, where's my money?". J.D. said that she was then made to stand in a corner of the room until he received a telephone call from a client and made a prostitution date.
J.D. was transported to the Jefferson Parish Sheriff's Office Detective Bureau where she supplied Detective Meetze with a video statement detailing the above incident. J.D. was presented with a photographic lineup which J.D. positively identified J.D. [sic].
Detectives relocated to the lobby of the Super 8 Motel and ascertained a copy of the hotel registration for room 224, which showed the room registered to Julius Murray on April 3rd, 2016.
Detectives learned that Murray was currently at the Sleep Inn and Suites in room 502. Detectives relocated to the Sleep Inn and Suites and made contact with Julius Murray. Murray was advised of his rights as per the Miranda decision and placed under arrest for Human Trafficking, Second Degree Battery, and Aggravated Assault with a Firearm. Detectives checked room 502 and located a black colored Apple iPhone, Model A1453, FCC ID BCG-E2642A, IMEI 352035063027684, Phone Number (619) 384-xxxx, with black and white case on a wooden console, a purple colored HP laptop computer, Model Number 11-r015wm, Serial Number 5CD5463CXC, with charger on the desk/dresser, and a Super 8 key card in a sleeve marked room 236. A search incidental to arrest revealed Murray to be in possession of a black colored Sandisk micro HC 1 8 GB memory card, located in his watch pocket.
It was later revealed by J.D. that Murray utilizes her laptop computer (the HP laptop computer) to post her advertisements on Backpage.com. J.D. also advised that Murray carries the memory card (the Sandisk memory card) on him at all times, even sleeping with it. J.D. could not advise why Murray carries the memory card or what it may contain.
Based on the above information and prior investigations regarding prostitution related crimes, vice investigators have learned that prostitutes keep in constant communication with their "pimps" through their cell phones. Therefore, investigators seized both Apple iPhones.

Sergeant Locascio testified at the suppression hearing that he is the supervisor of the JPSO vice squad, and that he participated in the investigation involving defendant. He asserted that he and Detective Steven Abadie went to the Sleep Inn Hotel at 4601 North I-10 Service Road after they learned that defendant was staying there. When they arrived, they confirmed that defendant had rented room 502. Sergeant Locascio explained that they spoke with hotel staff and, based on the officers' experience and their relationships with hotels they frequent regularly, the hotel staff terminated defendant's rental agreement due to his suspicious activity, indicated they wanted defendant off the premises, and authorized them to evict defendant. Thereafter, the officers went to defendant's room and knocked on the door. Sergeant Locascio testified that defendant answered the door, at which time they arrested him and advised him of his rights.

Sergeant Locascio explained that once defendant was detained, there was a search incident to arrest. During that search, Sergeant Locascio located on defendant's person a micro memory card in the coin pocket of his pants. Sergeant Locascio testified that they also observed and seized a Super 8 hotel key, J.D.'s HP laptop computer, defendant's iPhone, miscellaneous paperwork with females' names, addresses, and emails on the desk and in the dressing area, and a backpack on the floor. He noted that J.D. claimed defendant had a gray knapsack and an HP computer that belonged to her. Sergeant Locascio stated that in his experience as an officer, he has found evidence on cell phones and laptop computers with respect to vice investigations. Sergeant Locascio also indicated that there were exigent circumstances suggesting that evidence was about to be destroyed or disposed of.

Detective Meetze also testified at the suppression hearing. He stated that officers found defendant at the location provided by J.D., and defendant was in possession of several items J.D. had described to him. After defendant was arrested, Detective Meetze applied for search warrants for a white Apple iPhone, a black Apple iPhone, a purple HP laptop computer, and a micro HC memory card.

Detective Meetze testified that the purpose of the search warrant for the white Apple iPhone was to show communications between him and J.D., to determine if there were any other contacts between her and potential "pimps," or anybody forcing her to engage in prostitution, or to determine whether there were any other females in the area engaging in prostitution. He further testified that in his request for a search warrant, he noted that police were aware that prostitutes and pimps maintain communication with one another via cell phone or text messaging.

Additionally, Detective Meetze testified at the hearing that he was aware that J.D. had been arrested twice for prostitution at the beginning of 2016. He noted that J.D. told him that defendant had been her pimp for approximately four or five years. He also stated that J.D. told him that defendant had pistol-whipped her, that defendant had pointed a gun at her, and that the injury in her ear was a result of defendant sticking a gun in it. Detective Meetze testified that no gun was found. However, he saw J.D.'s injuries and they were corroborated by photographs taken after her arrest. He acknowledged that his conversations with J.D. were audio and video recorded.

Following the testimony at the suppression hearing, as well as arguments by counsel for defendant and the State, the trial judge denied the motion to suppress the evidence, stating:

All right. First of all, I do find that there's probable cause for the warrants. The warrants were not defective. And let me note for the record that unless omissions from an affidavit supporting a search warrant are willful or calculated to conceal information that would indicate that there's not probable cause or indicate other factual information in the affidavit is tainted, an omission will not change an otherwise good warrant from a bad one. And I'm not suggesting that there were even omissions of anything that was material, but to the extent that it was argued that there was no evidence that any omission was willful or calculated to conceal information.
The motion to suppress evidence is denied.

The Fourth Amendment to the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Burns , 04-175 (La. App. 5 Cir. 6/29/04), 877 So.2d 1073, 1075. It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable subject only to a few specifically established and well-delineated exceptions. State v. Stone , 94-155 (La. App. 5 Cir. 7/26/94), 641 So.2d 652, 655, writ denied , 95-0631 (La. 1/6/97), 685 So.2d 129.

In a hearing on a motion to suppress, the State bears the burden of establishing the admissibility of evidence seized without a warrant. La. C.Cr.P. art. 703(D). The trial court is afforded great discretion in ruling on a motion to suppress, and its ruling will not be disturbed absent an abuse of that discretion. State v. Lee , 05-2098 (La. 1/16/08), 976 So.2d 109, 122, cert. denied , 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008).

The first issue is whether the police had the right to knock on the door of the hotel room that defendant had rented.

Knocking on a door does not constitute an investigatory stop and does not require reasonable suspicion. State v. Sanders , 374 So.2d 1186, 1188 (La. 1979) ; State v. Oliver , 448 So.2d 156, 158 (La. App. 5 Cir. 1984). In Sanders , the Louisiana Supreme Court found that when a door is opened in response to a knock, it is a consent of the occupant to confront the caller, and there is no compulsion, force, or coercion involved. The Court further noted that the defendant was free to refuse to open the door or to slam it shut once opened and that his freedom of movement was never infringed upon, and no search or seizure occurred except on the basis of the defendant's voluntary actions. Sanders , 374 So.2d at 1189.

In State v. Haywood , 00-1584 (La. App. 5 Cir. 3/28/01), 783 So.2d 568, 575-76, this Court, citing Sanders and Oliver , found that the police officers were justified in knocking on the hotel room door to investigate a complaint based on an anonymous tip because reasonable suspicion of criminal activity was not required for the police to knock on a door and knocking on a door did not constitute an investigatory stop.

In the instant case, Sergeant Locascio testified that once Detective Meetze advised them that J.D. had positively identified defendant from a photographic lineup, they went to the room defendant had rented and knocked on the door. Sergeant Locascio indicated that defendant opened the door, after which they arrested him and advised him of his rights. The foregoing case law indicates that defendant was free to refuse to open the door or to slam it shut once he opened it, and that his freedom of movement was not infringed upon. As such, the police officers had the right to knock on the door of the hotel room defendant had rented.

The next issue is whether the police had probable cause to arrest defendant after he opened the door. Probable cause to arrest exists when the facts and circumstances within an officer's knowledge, and of which he has reasonable and trustworthy information, are sufficient to justify a man of average caution in the belief that the accused has committed an offense. State v. Scales , 93-2003 (La. 5/22/95), 655 So.2d 1326, 1331, cert. denied , 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996). Probable cause to arrest is not absolute cause, and to determine its existence, courts must examine facts and circumstances within the arresting officer's knowledge in light of the experience of reasonable people, not legal technicians. Id.

In the instant case, the evidence indicates that the facts and circumstances within the officers' knowledge were sufficient to justify the belief that defendant had committed an offense. Detective Meetze set up a prostitution date with J.D. at a hotel. When he arrived, he noticed that J.D. had numerous bruises to her facial area. J.D. then advised the detective that defendant was her pimp and that he forced her to conduct prostitution dates and to give him the money she earned from those dates. J.D. also advised the detective that defendant physically abused her. She told the officers that defendant could be located at the Sleep Inn Hotel in room 502, and she positively identified defendant in a photographic lineup. In light of the foregoing, the police had probable cause to arrest defendant.

The next issue is whether the officers lawfully seized evidence on defendant's person and in the hotel room after they arrested him. In a search incident to a lawful arrest, a police officer can search the suspect's person and the area within his immediate control in order to remove weapons and prevent destruction of evidence. State v. Leonard , 11-363 (La. App. 5 Cir. 11/15/11), 80 So.3d 535, 544, writ denied , 12-14 (La. 8/22/12), 97 So.3d 356.

Police may lawfully seize evidence without a warrant under the "plain view" doctrine when: 1) there is prior justification for an intrusion into the protected area; and 2) it is immediately apparent, without close inspection, that the items seized are evidence or contraband. State v. Tate , 09-619 (La. App. 5 Cir. 2/9/10), 33 So.3d 292, 300-01 ; Horton v. California , 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). "Under the plain view doctrine, if police are lawfully in a position from which they view an object that has an incriminating nature that is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant." State v. Leger , 05-0011 (La. 7/10/06), 936 So.2d 108, 155, cert. denied , 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) ; Horton , 496 U.S. at 136-137, 110 S.Ct. at 2308. The "plain view" exception does not require a police officer to be certain that the object in plain view is contraband; it simply requires that the officer have probable cause to believe the item in question is either evidence and/or contraband. Tate , 33 So.3d at 301.

In the instant case, Sergeant Locascio testified that after defendant was arrested, he searched defendant's person and found a micro memory card in the coin pocket of defendant's pants. The memory card was properly seized in the search incident to arrest.

When they arrested defendant in his hotel room, the officers observed in plain view a black iPhone and a laptop computer, among other things. Detective Meetze stated in his affidavit that during prior investigations regarding prostitution related crimes, vice investigators have learned that prostitutes keep in constant communication with their pimps through their cell phones. Sergeant Locascio testified that in his experience, he has found evidence on cell phones and laptop computers with respect to vice investigations. The officers had probable cause to believe that the items seized, which were in plain view, were either evidence and/or contraband.

Defendant next argues that the search warrants issued for the electronic items seized were based on omissions of material fact and were, thus, defective. He argues that the officer omitted from the search warrant application that J.D. had a lengthy criminal history of prostitution and that the Super 8 motel room had not been rented to defendant but was rented to a Hispanic male the day before the police arrested defendant. Defendant asserts that the search warrants were based solely on the statement of a woman arrested by an undercover officer for prostitution and with no corroboration, surveillance, or indicia of reliability.

As a general rule, searches and seizures must be conducted pursuant to a validly executed search warrant or arrest warrant. State v. Holmes , 08-719 (La. App. 5 Cir. 3/10/09), 10 So.3d 274, 278, writ denied , 09-0816 (La. 1/8/10), 24 So.3d 857. "A search warrant may issue only upon probable cause established to the satisfaction of a magistrate, by the affidavit of a credible person, particularly describing the person or place to be searched and the things to be seized." Lee , 976 So.2d at 122.

Probable cause for the issuance of a search warrant exists when the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place that is to be searched. Lee , 976 So.2d at 122. The facts establishing probable cause for the warrant must be contained within the four corners of the affidavit. State v. Green , 02-1022 (La. 12/4/02), 831 So.2d 962, 969. An affidavit supporting a search warrant is presumed to be valid, and the defendant has the burden of proving that the representations made in the affidavit are false. State v. Dee , 09-712 (La. App. 5 Cir. 2/23/10), 34 So.3d 892, 899, writ denied , 10-0705 (La. 10/29/10), 48 So.3d 1097.

The magistrate's determination of probable cause to issue a search warrant is entitled to significant deference on review, and "marginal cases should be resolved in favor of a finding that the issuing magistrate's judgment was reasonable." State v. Rodrigue , 437 So.2d 830, 833 (La. 1983). The reviewing court must simply insure that under the totality of the circumstances, the issuing magistrate had a "substantial basis" for concluding that probable cause existed. Green , 831 So.2d at 969 ; Illinois v. Gates , 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

In the instant case, we find there was sufficient probable cause for issuance of the search warrants. The affidavits for the search warrants were lengthy and very detailed regarding the facts and circumstances surrounding the offenses: namely, that the JPSO was investigating illegal escort services; that the officer made a prostitution date with J.D.; that when she arrived and offered her services for money, she was arrested for prostitution; that the officer noticed the bruising on J.D.'s facial area; that J.D. informed him that defendant was her pimp and physically abused her on a regular basis; that in his experience prostitutes and their pimps communicated by cell phones; and, that J.D. stated that she used her computer to post her advertisements on backpage.com.

Defendant argues that the affidavits for the search warrants were defective because they did not include that J.D. was reliable or that the Super 8 motel room had been rented by another person; however, those alleged omissions did not affect the accuracy of the affidavits. In establishing that an informant's tip is sufficient to provide a basis for a finding of probable cause, the affiant should include statements about the informant's reliability. Dee , 34 So.3d at 899. However, it is noted that J.D. was not merely an informant, but rather a victim, and thus, statements regarding her reliability in the affidavits were not required. Further, the information regarding the renting of the motel room to another person was not relevant as to whether there was probable cause to search the cell phones, computer, and memory card for evidence of the pandering offenses. The search warrants were supported by probable cause and were not defective.

In light of the foregoing, we find that the trial judge did not err by denying defendant's motions to suppress evidence.

ERRORS PATENT

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). No errors requiring corrective action were noted.

DECREE

For the foregoing reasons, we affirm defendant's convictions and sentences.

AFFIRMED

      The victim's initials are used under the authority of La. R.S. 46:1844(W), which allows this Court to identify a crime victim who is a minor, a victim of a sex offense, or a victim of a human trafficking related offense by using his or her initials.

      A more detailed recitation of the facts is set forth below in the narrative of events included with the applications for search warrants.

      The phone numbers were redacted to protect the privacy of the parties.

      He explained that they obtained a room key and attempted to use it, but it did not work, so they knocked on the door instead.

      Detective Meetze testified that he did not participate in apprehending defendant because he was at the bureau taking J.D.'s statement at that time.

      After the hearing on the motion to suppress, defendant filed a pro se Motion to Suppress the Evidence. In that motion, defendant argued that the evidence sought to be used against him was unlawfully and illegally obtained. The trial judge denied that motion as well.


source: Caselaw Access Project

author: KING, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    BIEL REO, LLC v. LEE FREYER KENNEDY CRESTVIEW, LLC and Lee Freyer Kennedy
    NO. 2016-CA-01488-SCT
    Supreme Court of Mississippi.
    March 1, 2018 Rehearing Denied May 31, 2018
    ATTORNEY FOR APPELLANT: RICK ANDREW La TRACE, Mobile
    ATTORNEYS FOR APPELLEES: JEFFREY MONROE WILLIAMS, RICHARD D. MITCHELL
    BEFORE RANDOLPH, P.J., KING AND BEAM, JJ.
   KING, JUSTICE, FOR THE COURT:

¶ 1. In this case involving two default commercial notes, Biel REO, LLC ("Biel REO"), filed a breach of contract and guaranty action in the Harrison County Circuit Court. Note 1 was secured by property in Okaloosa County, Florida. While the Mississippi case remained pending, Biel REO foreclosed on the collateral property located in Florida and obtained a deficiency judgment against Lee Freyer Kennedy Crestview, LLC ("LFK Crestview"), in the Okaloosa County Circuit Court. Biel REO now appeals the Harrison County Circuit Court's finding that because Biel REO had obtained a judgment pursuant to Note 1 in Florida solely against LFK Crestview and because Biel REO's pleadings requested relief based on Note 1 itself, Note 1 no longer existed. Thus, the Continuing Guaranty signed by Lee Freyer Kennedy ("Kennedy") individually had nothing left to guarantee as to Note 1. Therefore, Kennedy was not personally liable on any obligations relating to Note 1.

¶ 2. The Kennedy Defendants cross-appeal the trial court's finding that LFK Crestview was liable under Note 2 and that the Guaranty Agreement unambiguously encompassed Note 2. The Kennedy Defendants also appeal the trial court's decision to award Biel REO attorneys' fees and pre- and post-judgment interest in the amount of Note 2's stated default rate of eighteen percent.

FACTS AND PROCEDURAL HISTORY

¶ 3. On March 14, 2007, LFK Crestview executed and delivered a Commercial Note ("Note 1"), numbered 4449, with Whitney National Bank ("Whitney Bank"), in which it agreed to pay the principal amount of $4,100,000, plus interest. Note 1 was secured by approximately 287 acres of real estate property in Okaloosa County, Florida. Upon default, LFK Crestview agreed to pay reasonable attorneys' fees and costs of collection incurred by the holder of the note. The terms provided for a four-percent interest rate if any payment on the note was sixteen or more days late. Upon default, the interest rate increased to eighteen percent.

¶ 4. On the same day, Kennedy executed and delivered to Whitney Bank a Guaranty Agreement entitled "Continuing Guaranty," also numbered 4449, in which Kennedy promised to repay all of the outstanding indebtedness of LFK Crestview, whether then existing or thereafter incurred, together with reasonable attorneys' fees and costs incurred in attempting to collect said indebtedness. The Guaranty Agreement stated:

Guarantor jointly, severally, and unconditionally guarantees to Bank the prompt payment in full of all obligations and liabilities of Borrower to Bank, direct or contingent, due or to become due, now existing or hereafter arising, including, without limitation, all future advances, with interest, attorneys' fees, expenses of collection and costs, and further including, without limitation, obligations to Bank on promissory notes, checks, overdrafts, letter-of-credit agreements, loan agreements, security documents, endorsements and continuing guaranties (collectively, the "Obligations")....

¶ 5. On November 27, 2007, LFK Crestview executed and delivered a Promissory Note ("Note 2"), numbered 5726, with Whitney Bank, in which it agreed to pay the principal amount of $500,000, plus interest. Upon default, LFK Crestview agreed to pay reasonable attorneys' fees and costs of collection incurred by the holder of Note 2. Again, the terms provided for a four-percent interest rate if any payment on the note was sixteen or more days late and, upon default, the interest rate increased to eighteen percent. Note 2 was unsecured.

¶ 6. On January 24, 2011, Whitney Bank assigned Note 1, Note 2, and the Continuing Guaranty to Biel Loan Co. III-A, LLC ("Biel Loan Co.").

¶ 7. On June 2, 2011, in the Circuit Court of Harrison County, Mississippi, Biel Loan Co. filed suit against LFK Crestview, LFK Alabama, Factory Hill, and Kennedy. Biel Loan Co. alleged that Note 1 had matured and that LFK Crestview was in default under the terms of Note 1 for failure to make payments. Biel Loan Co. alleged that, as of March 8, 2010, LFK Crestview owed a principal balance of $3,800,000, accrued interest in the amount of $27,866.67, late charges of $200, and reasonable (15%) attorneys' fees totaling $574,210, with interest accruing at the per diem rate of $1,873.97. The total amount owed as of March 8, 2010, was $4,402,276.67.

¶ 8. Additionally, Biel Loan Co. alleged that LFK Crestview was in default under the terms of Note 2. As of March 8, 2010, LFK Crestview owed $276,868.56, consisting of a principal balance of $239,731.94, accrued interest of $984.85, late charges of $38.48, and reasonable (15%) attorneys' fees in the amount of $36,113.29, with interest accruing at the per diem rate of $111.80. In total, Biel Loan Co. in its First Cause of Action alleged that, as of March 8, 2010, LFK Crestview was indebted pursuant to Note 1 and Note 2 in the total amount of $4,679,145.23, with a collective per diem rate of $1,985.77.

¶ 9. Biel Loan Co.'s Fourth Cause of Action alleged that, pursuant to the Continuing Guaranty, Kennedy was individually liable for those amounts. The defendants answered, each entity admitting the execution of the notes and/or guaranty agreements but denying all other allegations.

¶ 10. Thereafter, Biel Loan Co. moved the trial court to substitute as a party Biel REO and attached allonges as exhibits in support. Additionally, an Assignment and Assumption of Mortgage, Assignment of Leases and Rents and Loan Documents ("Assignment") was attached. This Assignment stated that on January 19, 2011, Tandy Loanco, LLC, a Delaware limited liability company, as Trustee for Biel Loanco Grantor Trust I, assigned and transferred to Biel REO the Real Estate Mortgage and Security Agreement dated March 14, 2007. The trial court granted the unopposed motion and substituted Biel REO as plaintiff.

¶ 11. Biel REO then moved the court to dismiss the causes of action in the complaint against LFK Alabama and Factory Hill and the causes of action against Kennedy that pertained to either LFK Alabama or Factory Hill. The trial court granted the motion, leaving as defendants only LFK Crestview and Kennedy.

¶ 12. While the Harrison County action was pending, Biel REO filed a judicial foreclosure action against LFK Crestview in the Circuit Court of Okaloosa County, Florida. Kennedy individually was not named as a party to the action. The Florida court then entered a Final Summary Judgment in the judicial foreclosure action, finding LFK Crestview liable to Biel REO for the amount of $5,980,469.46, with interest accruing at the rate of 4.75% per annum.

¶ 13. On May 10, 2013, the Clerk of Court held a judicial foreclosure sale of the mortgaged property, approximately 264.94 acres in Crestview, Florida. In an auction open for approximately two minutes, Biel REO purchased the property for $100. Subsequently, Biel REO filed a motion seeking a deficiency judgment in the Florida court. Biel REO's expert concluded that the best use of the property was as future residential development and valued the foreclosed property at $2,300.87 per acre, for a total value of $610,000. In contrast, LFK Crestview's expert valued the property "as is with [Planned Unit Development (PUD) ] zoning in place" to be $10,700,000. LFK Crestview's expert additionally opined that the property "as-is with PUD zoning and with [Community Development Districts (CDDs) in place" had a potential value of $16,900,000. The property "as-is with PUD zoning, CDD bond is funded and Development Order is in place" was valued at $17,900,000.

¶ 14. On October 2, 2014, in Mississippi, the circuit clerk filed a Motion to Dismiss for Want of Prosecution. Biel REO responded, asserting that a related judicial foreclosure action was pending in the Circuit Court of Okaloosa County, Florida.

¶ 15. On December 1, 2014, the trial court in Mississippi issued an order that required the parties to provide the court with a proposed Scheduling Order within forty-five days. The parties had a telephonic hearing with the trial court, after which the court entered a second order finding that a Scheduling Order was necessary in order to expedite and conclude the matter. The trial court set trial for November 30, 2015.

¶ 16. On July 17, 2015, the trial court in the Florida litigation entered a Final Deficiency Judgment against LFK Crestview in the amount of $5,965,485.24. The Florida court found the property value to be $610,000. It then entered a final judgment against Crestview in the amount of $5,965,485.24.

¶ 17. In Mississippi, Biel REO requested a continuance of the trial setting, stating that the trial court in the Florida litigation had entered a Final Deficiency Judgment against LFK Crestview in the amount of $5,965,485.24, and that Biel REO's Motion to Tax Attorneys' Fees and Costs remained pending in the Florida court. Biel REO argued that once it obtained a final judgment in the Florida litigation, the Harrison County case would be ripe for summary judgment. It also attached the post-foreclosure deficiency judgment in the Florida litigation.

¶ 18. The Kennedy Defendants argued that Biel REO's motion should be denied, because Kennedy was not a party in the Florida action and Biel REO was attempting either to deprive Kennedy of her right to a bench trial or to delay the Mississippi trial to avoid potentially inconsistent rulings as to whether Biel REO was entitled to a deficiency judgment. The Kennedy Defendants argued in the alternative that Biel REO endeavored to delay the trial so that it could argue res judicata before the Mississippi court. Biel REO argued instead that: "A continuance of the trial setting ... serves the following important interests: the efficient use of judicial resources, preservation of the integrity of prior judgments and facilitation of the parties' reliance thereon, fostering respect for the rendering court, avoidance of inconvenience and harassment of the litigants and piecemeal litigation." It argued that, pursuant to Mississippi Code Section 11-7-303, a foreign judgment had the same effect as a judgment of a Mississippi circuit court and may be enforced the same as a domestic judgment.

¶ 19. The trial court denied Biel REO's motion to amend the scheduling order, finding that "any amending of deadlines would be prejudicial and would delay the Trial in this cause."

¶ 20. Trial began on April 19, 2016, and concluded on April 20. The parties did not dispute that Note 1, Note 2, and the Guaranty Agreement were executed and that both Notes 1 and 2 were in default. At trial Biel REO asserted that, because a final judgment had been entered in Florida, Note 1 no longer existed. Under Florida law, the note had merged into the final judgment. Therefore, it entered into evidence the Florida judgments and requested that the trial court consider the documents as evidence of Kennedy's obligation pursuant to the Continuing Guaranty.

¶ 21. After a bench trial, the trial court issued a judgment, stating:

as to Crestview, Biel already had a judgment related to the amounts claimed due under Note 1. It is not entitled to a second judgment on the same note for the same amounts. Biel has a judgment which it has previously indicated that it would "domesticate." It certainly has every right to enroll the Florida judgment in Mississippi should it choose to do so. It has not done so in this cause or otherwise.

The trial court then expressed concern over why Kennedy had not been named as a party in the Florida litigation and held that the Florida judgment did not appear to be binding on Kennedy individually. It found that by Florida law, Note 1 was cancelled at the time that the foreclosure was allowed in Florida and that it no longer existed. It stated:

Had Biel proceeded with this cause first and obtained its judgment and then proceeded with the Florida foreclosure, the result would be different. However, it chose to proceed in Florida first and obtain its judgment there. Nor did Biel ever seek to amend its Complaint in this cause to proceed as to the Florida judgment rather than as to Note 1. There were no claims for recovery made based on the Florida judgment. Biel merely submitted the Florida documents as exhibits and made arguments about them, but never sought to amend to either change its claims or add claims. Biel cannot now proceed on Note 1 as Note 1 no longer exists. Nor can it proceed a second time against Crestview on the same claim. Further, as Note 1 no longer exists as a viable note, the Guaranty as related to Note 1 has nothing left to guarantee. The claims for recovery under Note 1 and for recovery under the Guaranty as it relates to Note 1 must be dismissed.

As to Note 2, the trial court found that Biel REO clearly was entitled to a judgment against LFK Crestview in the principal amount of $226,699.90, plus accrued interest through April 19, 2016, in the amount of $243,931.72, and late fees of $2,021.52, for a total of $472,653.14. In addition, the trial court found the Guaranty Agreement applied to Note 2 and that Kennedy was liable individually for the amounts due.

¶ 22. Biel REO filed a motion for attorneys' fees. The Kennedy Defendants objected, arguing first that they were not liable for attorneys' fees that Biel Loan Co. had incurred. Second, they argued that all attorneys' fees associated with Biel REO were unnecessary and solely related to Biel REO's failure to move the case forward. And, in the alternative, the Kennedy Defendants argued that the amount sought was excessive in relation to the work performed, the hourly rate charged by the attorneys and paralegals who worked on the case was excessive, and that Biel REO may not recover attorneys' fees incurred from the Florida deficiency suit.

¶ 23. The trial court held that the Kennedy Defendants were not liable for attorneys' fees related to the Florida litigation, but were liable for attorneys' fees in the Mississippi litigation. It approved Biel REO's request for prejudgment and postjudgment interest at the rate of eighteen percent.

ISSUES ON APPEAL

I. Whether the trial court erred in its finding that the Florida judgments were not sufficient evidence of Kennedy's financial obligation under the Guaranty Agreement.
II. In the alternative, whether Biel REO was required to amend its pleadings to include the Florida judgments to recover on the Guaranty Agreement.

ISSUES ON CROSS-APPEAL

III. Whether Note 2 was assigned properly to Biel REO.
IV. Whether the trial court erred in holding Lee Kennedy personally liable under Note 2.
V. Whether the trial court abused its discretion in awarding Biel REO eighteen percent pre- and post-judgment interest.
VI. Whether the trial court erred in its decision to award attorneys' fees.

ANALYSIS

I. Whether the trial court erred in its finding that the Florida judgments were not sufficient evidence of Kennedy's financial obligation under the Guaranty Agreement.

¶ 24. The trial court dismissed Biel REO's cause of action pertaining to Note 1 after finding that Note 1 had been canceled and no longer existed because of the Florida actions. The standard of review for involuntary dismissals is as follows:

In considering a motion to dismiss, the judge should consider "the evidence fairly, as distinguished from in the light most favorable to the plaintiff," and the judge should dismiss the case if it would find for the defendant. "The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff's evidence were all the evidence offered in the case." "This Court applies the substantial evidence/manifest error standards to an appeal of a grant or denial of a motion to dismiss pursuant to M.R.C.P. 41(b)."

Stewart v. Merchants Nat'l Bank , 700 So.2d 255, 259 (Miss. 1997) (internal citations omitted).

¶ 25. Biel REO argues that the trial court erred in finding that Kennedy was not liable under the Continuing Guaranty for the amount owed pursuant to the Florida judgments and states that its complaint sufficiently put Kennedy on notice that Biel REO was attempting to collect against her the total indebtedness owed by LFK Crestview to Biel REO, regardless of form. Biel REO contends that the trial court was under the misimpression that Biel REO was attempting to proceed directly upon the Florida judgments against LFK Crestview and Kennedy.

¶ 26. In its Complaint, Biel REO alleged as its first cause of action that LFK Crestview was indebted to Biel REO pursuant to the terms of both Note 1 and Note 2. In its fourth cause of action, Biel REO alleged that Kennedy was indebted to Biel REO under the terms of the LFK Crestview Guaranty Agreement and attached the Guaranty Agreement as an exhibit. Biel REO states that, pursuant to its fourth cause of action, it was unnecessary for Biel REO to amend its Complaint to bring a new cause of action on the Florida judgments. These Florida judgments established the indebtedness owed by LFK Crestview to Biel REO, for which Kennedy was liable under the terms of the Continuing Guaranty.

¶ 27. As to the Florida judgment, this Court previously has explained that:

the rule that a judgment merges the cause of action on the note in the judgment applies generally to judgments on negotiable instruments, but this is primarily to bar subsequent actions on the instrument itself. 8 Am. Jur., Bills and Notes, Sec. 798. The doctrine of merger is designed to promote justice and applies no further than that end requires. It is based on the theory that a superior right, the judgment, covers an inferior right, the note. Principally it precludes the relitigation of a cause of action, by the doctrine of res judicata. 30A Am. Jur., Judgments, Secs. 313-315. Upon the merger, the judgment becomes evidence of the debt in the sense that a proceeding in reference to it should be filed on the judgment; but it does not mean an annihilation and discharge of the debt so as to preclude an examination of its character or nature for all purposes.

Fish Meal Co. v. Brondum , 242 Miss. 573, 135 So.2d 825, 830 (1961). Therefore, as the trial court stated, Note 1 merged into the Florida judgments and no longer existed.

¶ 28. However, the Florida judgments did represent a liability of LFK Crestview to Biel REO. Pursuant to the Continuing Guaranty, Kennedy unconditionally guaranteed to Biel REO "prompt payment in full of all obligations and liabilities of Borrower to [Biel REO], direct or contingent, due or to become due, now existing or hereafter arising ...." The agreement stated: "this Continuing Guaranty ... for the purpose of guarantying the obligations of Lee Freyer Kennedy Crestview, LLC .... Guarantor jointly, severally and unconditionally guarantees to Bank the prompt payment in full of all obligations and liabilities of Borrower to Bank...." Additionally, Kennedy waived all rights to "notice and pleas of presentment, demands, dishonor, and protest."

¶ 29. Pursuant to Mississippi Rule of Civil Procedure 8, sufficient notice of the claims and grounds for relief satisfies the liberal pleading requirements. This Court recently has reiterated that:

To satisfy the liberal pleading requirements of Rule 8 of the Mississippi Rules of Civil Procedure, "the pleadings need only 'provide sufficient notice to the defendant of the claims and grounds" ' upon which relief is sought, based on direct or inferential fact allegations. Rather than a "magic words requirement," Rule 8's objective is "to avoid civil cases turning on technicalities" while "giving the opposing party fair notice of the nature and basis or grounds of the pleader's claim."

City of Vicksburg v. Williams , 191 So.3d 1242, 1245 (Miss. 2016) (internal quotations and citations omitted). Biel REO stated in its complaint that it was seeking recovery under the terms of the Continuing Guaranty, not solely pertaining to Note 1 but to all indebtedness of Kennedy pursuant to the guaranty. Therefore, this put Kennedy on notice that it was attempting to recover pursuant to the Continuing Guaranty, in which Kennedy agreed to prompt payment of all liabilities and obligations of LFK Crestview to Biel REO. It then submitted as evidence at trial the Florida judgment, which constituted an obligation of LFK Crestview to Biel REO.

¶ 30. The trial court found the fact that Kennedy had not been a defendant in the Florida deficiency action to be concerning. Biel REO stated that Kennedy had not been made a party because the Florida court had lacked personal jurisdiction over Kennedy. While this normally might cause concern, the Guaranty Agreement unambiguously states: "Guarantor shall be bound by all of the terms and conditions of any notes, agreements, or other obligations in favor of Bank signed or incurred by Borrower. Guarantor hereby waives all notice and pleas of presentment, demand, dishonor and protest." Therefore, Kennedy waived all rights to notice and pleas of protest when she signed the Continuing Guaranty.

¶ 31. The Kennedy Defendants next argue that under Mississippi law, Biel REO's bid of $100 to purchase the Florida property would have precluded Biel REO's ability to obtain a deficiency judgment. According to Mississippi law, when a creditor conducts a foreclosure sale of a debtor's property:

if the secured creditor is authorized to foreclose by power of sale, after the debtor's default and upon compliance with the deed of trust or other instrument, the secured creditor may sell any or all of the real estate that is subject to the security interest in its then condition or after any reasonable rehabilitation or preparation for sale. Every aspect of the sale, including the method, advertising, time, place and terms, must be commercially reasonable. This is an objective standard.

Hartman v. McInnis , 996 So.2d 704, 710 (Miss. 2007) (quoting Wansley v. First Nat'l Bank , 566 So.2d 1218, 1223 (Miss.1990) ). A "creditor has no right to a deficiency judgment until he satisfies the court that it would be equitable, in the light of the sale price, to authorize a deficiency judgment." Hartman , 996 So.2d at 710.

¶ 32. The Kennedy Defendants state that Biel REO's purchase of approximately 265 acres for $100 shocks the conscience and argue that the Florida property was worth at least $3,000,000. However, the Florida court did not find that $100 was the fair market price of the Florida property. The Florida court held a trial in which Biel REO and LFK Crestview each presented evidence, including evidence of the Hyperion offers, of what the respective companies considered to be the fair market value of the property. After a full trial, the Florida court then found that $610,000 was the fair market value of the property. Because Kennedy waived notice to any other obligations in favor of the holder of the Guaranty Agreement, the Florida judgments were sufficient evidence of her indebtedness to Biel REO. Additionally, this Court previously has stated, "unlike suits where the lender sues the primary borrower, an individual guaranty (as written in the contracts applicable here) does not require foreclosure or fairness of price. The guarantor is immediately liable upon the borrower's (in this case, Indian Head's) default." Bosarge v. LWC MS Props., LLC , 158 So.3d 1137, 1143 n.5 (Miss. 2015).

¶ 33. The Kennedy Defendants lastly argue that because Mississippi follows the "first to file" rule, Mississippi had priority jurisdiction over Florida. "This Court 'repeatedly' has stated that it is a 'well established rule in this jurisdiction that where two (2) suits between the same parties over the same controversy are brought in courts of concurrent jurisdiction, the court which first acquires jurisdiction retains jurisdiction over the whole controversy to the exclusion or abatement of the second suit.' " Braswell v. Ergon Oil Purchasing, Inc. , 179 So.3d 997, 1002-03 (Miss. 2015), reh'g denied (Dec. 17, 2015) (quoting Copiah Med. Assocs. v. Mississippi Baptist Health Sys. , 898 So.2d 656, 663 (Miss. 2005) ). Yet the appropriate time to assert this defense would have been in the Florida action, before a final judgment had been obtained. LFK Crestview fully participated in the Florida lawsuit. No evidence exists that it complained of a prior lawsuit in the Florida action.

¶ 34. Therefore, because Biel REO's Fourth Cause of Action in its Complaint put Kennedy on notice that it was pursuing reimbursement according to the terms of the Continuing Guaranty that she personally signed, we find that the trial court erred in its determination that Biel REO was required to amend its pleadings to include the Florida judgments in order to recover against Kennedy individually.

CROSS-APPEAL

II. Whether Note 2 was assigned effectively to Biel REO.

¶ 35. LFK Crestview argues that Capital Crossing, the Biel REO servicing agent, lacked authority to execute the assignment of Note 2 and the Guaranty Agreement. On January 24, 2011, Whitney Bank assigned Note 1, Note 2, and the Guaranty Agreement to Biel Loan Co. Biel Loan Co. then assigned the notes and guaranty to Biel Loan Co. Grantor Trust, for which Capital Crossing also was the authorized servicer. On March 6, 2012, Biel Loan Co. Grantor Trust assigned the documents to Biel REO. Brian Doherty, vice-president of Capital Crossing, testified that he had been present when the assignment was completed and that the assignment had transferred all documents related to LFK Crestview from Biel Loan Co. Grantor Trust to Biel REO.

¶ 36. On June 6, 2012, Biel Loan Co. filed an Amended Motion to Substitute Party, asking the court to substitute Biel REO as a party in the lawsuit. The Kennedy Defendants agreed to the substitution, and the trial court granted the motion.

¶ 37. However, at trial, a Limited Power of Attorney signed on April 13, 2016, was introduced, stating that it was effective as of March 9, 2012, three days after Biel Loan Co. Grantor Trust had assigned the loans and guaranty to Biel REO. The power of attorney stated that Biel REO had appointed Capital Crossing as its attorney-in-fact with respect to the LFK Crestview loans and guaranty. The Kennedy Defendants contend that the Power of Attorney was backdated three days after the loans and guaranty had been transferred, therefore Capital Crossing had possessed no authority to assign the loans.

¶ 38. Doherty testified that the document had been executed as standard practice in advance of trial prior to giving testimony, just in case any question arose about Doherty's ability to testify on behalf of Biel REO. When asked if Doherty had brought anything to show that Capital Crossing had authority to assign the documents to Biel REO, Doherty stated that he had not.

¶ 39. The trial court found that the question of assignment had never been presented to the court. "It is a long-established rule in this state that a question not raised in the trial court will not be considered on appeal." Adams v. Bd. of Supervisors of Union Cty. , 177 Miss. 403, 170 So. 684, 685 (1936) (citations omitted). The trial court addressed the issue regardless and found that no evidence of the lack of authority had been provided to the court.

¶ 40. At trial, counsel for the Kennedy Defendants cross-examined Doherty regarding the legality of various assignments from Whitney Bank to Biel REO. The Kennedy Defendants additionally raised the issue in their motion to reconsider. Thus, we find that the Kennedy Defendants preserved the issue of the legality of the assignments of the notes and the guaranty to Biel REO. However, because the Kennedy Defendants previously agreed to the substitution of Biel REO as the plaintiff and real party in interest, the appropriate time to object to the substitution would have been at that time. Additionally, the Kennedy Defendants failed to submit testimony or evidence in support of their argument that the documents had not been assigned properly to Biel REO. Accordingly, this issue has no merit.

III. Whether the trial court erred in holding Kennedy personally liable under Note 2.

¶ 41. The Kennedy Defendants assert that Kennedy solely guaranteed Note 1 and that the Guaranty Agreement did not apply to Note 2. In support, the Kennedy Defendants point out that Note 1 and the Guaranty Agreement both were assigned the number 4449, while Note 2 had been assigned the number 5726. Kennedy also testified that she had not signed a personal guaranty for Note 2 and that the guaranty had covered only Note 1. So the Kennedy Defendants argue that the differing numbers combined with Kennedy's testimony that she solely guaranteed Note 1 create ambiguity which must be construed in favor of the Kennedy Defendants. An appeals court "reads the contract as a whole, gives contract terms their plain meaning, and construes any ambiguities against the drafter." Cain v. Cain , 967 So.2d 654, 662-663 (Miss. Ct. App. 2007) (citing Pursue Energy Corp. v. Perkins , 558 So.2d 349, 352-53 (Miss. 1990) ).

¶ 42. The trial court found that the "guaranty very clearly applies to any and all loans that Crestview, LLC may have made, and not only to loans, but to checks, overdrafts, letters of credit, which is what you guys are referring to note two as now, security documents, endorsements, et cetera.... So very clearly, the guaranty applied not only to note one, but also to note two." We agree.

¶ 43. The guaranty is titled "Continuing Guaranty." The agreement states:

Guarantor jointly, severally, and unconditionally guarantees to Bank the prompt payment in full of all obligations and liabilities of Borrower to Bank, direct or contingent, due or to become due, now existing or hereafter arising, including, without limitation, obligations to Bank on promissory notes, checks, overdrafts, letter-of-credit agreements, loan agreements, security documents, endorsements and continuing guaranties (collectively, the "Obligations").... Notice of termination of this Guaranty will not be effective until ten (10) days after the notice is delivered to an officer of Bank at the office where the Obligations were borrowed and such officer acknowledges in writing receipt of the notice....
This Guaranty shall be continuing and binding on the person delivering such notice as to (a) any Obligations incurred or arising prior to the Effective Date of written notice of termination of this Guaranty, (b) all renewals, extensions, and modifications of Obligations existing prior to the Effective Date of written notice of termination of this Guaranty and (c) Obligations Bank is bound to permit to be incurred by agreement entered into prior to the Effective Date of written notice of termination of this Guaranty. A notice of termination shall not affect the liability of any person not giving such notice.

In addition, at trial Kennedy admitted that she had been a developer for fifteen years and that she was very experienced in the industry of dealing with banks and borrowing money. Kennedy also admitted to signing the Guaranty Agreement.

¶ 44. The terms of the Continuing Guaranty are unambiguous. The language "all obligations and liabilities of Borrower to Bank, direct or contingent, due or to become due, now existing or hereafter arising, including, without limitation, obligations to Bank on promissory notes ..." clearly encompassed Note 2. And the Kennedy Defendants submitted no evidence that Kennedy had terminated the Guaranty Agreement before Note 2 was executed. Accordingly, the trial court did not err in its finding that Kennedy was personally liable pursuant to Note 2.

IV. Whether the trial court abused its discretion in awarding eighteen percent pre- and post-judgment interest on Note 2.

¶ 45. LFK Crestview contends that the trial court had discretion as to whether to award pre-and post-judgment interest, and that pre- and post-judgment interest is not intended to punish the defendant. Note 2, as evidenced by the November 27, 2009, change in terms agreement, stated that it had a four percent per annum interest rate. Upon default, Note 2's terms stated upon default, the interest rate "shall be increased to 18.00% per annum." The trial court awarded Biel REO both pre- and post-judgment interest at eighteen percent.

¶ 46. "A trial court's grant or denial of a request for prejudgment interest is reviewed for abuse of discretion." Indem. Ins. Co. of N. Am. v. Guidant Mut. Ins. Co. , 99 So.3d 142, 156 (Miss. 2012) (quoting Aetna Cas. & Sur. Co. v. Doleac Elec. Co., Inc. , 471 So.2d 325, 331 (Miss.1985) ). Mississippi Code Section 75-17-7 states:

All judgments or decrees founded on any sale or contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered. All other judgments or decrees shall bear interest at a per annum rate set by the judge hearing the complaint from a date determined by such judge to be fair but in no event prior to the filing of the complaint.

Miss. Code Ann. § 75-17-7 (Rev. 2016). "Mississippi also acknowledges the judicial authority to award the prevailing party prejudgment interest in breach of contract suits." Sunburst Bank v. Keith , 648 So.2d 1147, 1153 (Miss. 1995).

¶ 47. Under the terms of the contract, LFK Crestview agreed to an eighteen percent interest rate, should the note be defaulted on. Thus, the trial judge awarded Biel REO the interest rate pursuant to the terms of the note. The Kennedy Defendants argue that prejudgment interest "is not imposed as a penalty for wrong doing; it is allowed as compensation for the detention of money overdue." Sunburst , 648 So.2d at 1153. The trial court did not impose the eighteen percent interest rate as a penalty against the Kennedy Defendants. The trial court imposed the eighteen percent interest rate pursuant to the terms of the document that LFK Crestview willingly signed. The trial court also found that the Kennedy Defendants had waived this issue because they had made no real challenge at trial as to the interest calculations made by Biel REO. Accordingly, we find no merit in this issue.

V. Whether the trial court erred in awarding attorneys' fees.

¶ 48. Lastly, the Kennedy Defendants argue that the trial court erroneously awarded Biel REO attorneys' fees. In the alternative, the Kennedy Defendants argue that the attorneys' fees awarded were: (1) not incurred or paid by Biel REO; (2) unreasonable due to Biel REO's delay; and (3) improper because the trial court had not required Biel REO to produce its identified fee arrangement prior to ruling on the motion for attorneys' fees.

¶ 49. "An award of attorney's fees must be based on credible evidence, and the trial court must support such an award with factual determinations." Tunica Cty. v. Town of Tunica , 227 So.3d 1007, 1031 (Miss. 2017) (citations omitted). "[A] trial court's decision regarding attorneys' fees will not be disturbed by an appellate court unless it is manifestly wrong." Bay Point Props., Inc. v. Mississippi Transp. Comm'n , 201 So.3d 1046, 1057-58 (Miss. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2002, 198 L.Ed.2d 750 (2017) (citations omitted).

¶ 50. LFK Crestview argues that most of the bills for attorneys' fees had been billed to Biel Loan Co. Grantor Trust I, not Biel REO. Additionally, some of the attorneys' fees had been billed to Whitney Bank and other separate entities before Biel REO had been assigned Note 2 on March 6, 2012. We find those arguments unpersuasive. Note 2 provides:

ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses, whether or not there is a lawsuit, including attorneys' fees, expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injuction), and appeals. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by law.

In addition, the Guaranty Agreement stated that the guarantor guaranteed without limitation "all future advances, with interest, attorneys' fees, [and] expenses of collection and costs...." Biel REO points out that it did not seek recovery of fees incurred by Whitney Bank, but only fees associated with "Biel" entities. Although the Kennedy Defendants argue that a separate entity cannot recover attorneys' fees that it did not incur, the entire note along with its right was assigned to Biel REO. Therefore, it is able to recover attorneys' fees as the real party in interest.

¶ 51. The trial court also excluded all fees and costs associated with the Florida litigation, because those fees and costs had been included in the Florida court's final judgment. It then made a reasonableness determination pursuant to Mississippi Rule of Professional Conduct 1.5. Rule 1.5 provides:

(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

¶ 52. The trial court found that the time and labor required had not been substantial because no formal discovery was conducted and because most of the time and labor had been imposed in the Florida litigation. There was no evidence of preclusion of other employment as a result of handling the matter. The biggest dispute was regarding the fees customarily charged in the locality. Biel REO presented an affidavit claiming reasonable fees of $275 to $325 an hour for attorneys and $115 an hour for paralegals. The Kennedy Defendants presented an affidavit stating that reasonable attorneys' fees were $200 an hour for attorneys and $85 for paralegals. The trial court stated that reasonable fees likely were somewhere in the middle. The trial court considered the remaining factors and found that the overall attorneys' fees sought, excluding for the Florida litigation, were reasonable.

¶ 53. The Kennedy Defendants next argue that a portion of the attorneys' fees awarded were related to Biel REO's intentional delay tactics. The trial court considered these arguments and held that, excluding the Florida litigation fees, the remaining fees were reasonable, as was the overall amount sought. The trial court found probative the fact that $48,475.50 in attorneys' fees was far less than the percentage recovery of attorneys' fees generally seen in collection cases. We agree and find that the trial court was not manifestly wrong in its determination.

CONCLUSION

Direct Appeal

¶ 54. Because Biel REO's Fourth Cause of Action in its Complaint put Kennedy on notice that it was pursuing reimbursement according to the terms of the Continuing Guaranty, we find that the trial court erred in its determination that Biel REO was required to amend its pleadings to include the Florida judgments. Accordingly, because the Florida judgments were sufficient evidence of an obligation of LFK Crestview to Biel REO, we reverse and remand the trial court's judgment pertaining to Note 1.

Cross Appeal

¶ 55. On cross-appeal, we affirm the trial court's finding that the Kennedy Defendants failed to submit sufficient evidence to prove the assignments were not effective. In addition, this Court holds that the trial court correctly found Kennedy to be personally liable for the indebtedness of LFK Crestview pursuant to Note 2. Lastly, we affirm the trial court's award of pre- and post-judgment interest and its award of attorneys' fees.

¶ 56. ON DIRECT APPEAL: REVERSED AND REMANDED. ON CROSS-APPEAL: AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      LFK Crestview and Kennedy are referred to as the "Kennedy Defendants" when appropriate.

      Note 1 was modified on March 5, 2008; June 3, 2008; June 8, 2009; and on September 1, 2009.

      Note 2 was modified on November 27, 2008, and November 27, 2009.

      In addition, although not the subjects of the instant action, on February 25, 2008, Lee F. Kennedy Alabama, LLC ("LFK Alabama"), executed a Promissory Note to Whitney Bank in the amount of $1,763,000. Kennedy executed a Guaranty Agreement the same day. And on August 4, 2008, Factory Hill, LLC, executed a Promissory Note to Whitney Bank in the amount of $2,021,250. Kennedy executed a Guaranty Agreement on that same day.

      A separate entity purchased the LFK Alabama and Factory Hill notes and those claims were dropped from the lawsuit.

      Biel REO commenced the Florida action on July 26, 2012.

      The final judgment was equal to the difference between $5,980,469.46, the amount stated in the Final Summary Judgment, and $610,000, the fair market value of the foreclosed property, plus accrued interest of $595,015.78, and reasonable attorneys' fees and costs.

      Mississippi Code Section 11-7-303 states:
      A copy of any foreign judgment authenticated in accordance with the act of Congress or the statutes of this state or any rule promulgated and adopted by the Mississippi Supreme Court may be filed in the office of the clerk of the circuit court of any county in this state. Said clerk shall treat the foreign judgment in the same manner as a judgment of the circuit court of any county in this state. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a judgment of a circuit court of any county in this state and may be enforced or satisfied in like manner ....
      Miss. Code Ann. § 11-7-303 (Rev. 2004).

      LFK Crestview received the full amount pursuant to Note 1 but did not receive the full amount of Note 2. The parties agreed to the actual amount received pursuant to Note 2.

      Issues I and II are combined.

      On July 16, 2012, Hyperion Capital Partners ("Hyperion") paid a nonrefundable fee of $100,000 to have the option to purchase the Florida property for $1,900,000. Hyperion did not exercise the option. On February 12, 2013, Hyperion then submitted a second offer to Biel REO to purchase the Florida property for $1,300,000. Brian Doherty, vice-president of Capital Crossing, authorized servicer for Biel Loan Co. Grantor Trust, rejected Hyperion's offer, stating that the two were far apart in their opinions of value. Additionally, the Kennedy Defendants presented evidence that the Biel REO bidding agent had been authorized to bid up to $3,000,000, in the foreclosure action in Florida.

      Doherty later testified that he did not acquire a power of attorney to testify in every instance, only from time to time.

      We note that the Florida court found the appropriate interest rate to be 4.75%. Therefore, any interest rate pursuant to Note 1's terms is now moot.