IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI APPEAL NO TS APPEAL FROM THE CHANCERY COURT OF SIMPSON COUNTY, MISSISSIPPI

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1 E-Filed Document Aug :27: CA Pages: 42 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI APPEAL NO TS MARILYN NEWSOME Appellant Vs. DAVID SHOEMAKE, ET. AL. Appellees APPEAL FROM THE CHANCERY COURT OF SIMPSON COUNTY, MISSISSIPPI BRIEF OF APPELLANT MARILYN NEWSOME Oral argument not requested. SUBMITTED BY: TERRELL STUBBS (MB# 8017) LAUREN CAVALIER STUBBS, (MB #105114) THE STUBBS LAW FIRM, PLLC ATTORNEYS FOR APPELLANT 120 W. COURT AVENUE P.O. BOX 157 MENDENHALL, MS Telephone Fax terrell@thestubbslawfirm.com

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI APPEAL NO TS MARILYN NEWSOME Appellant Vs. DAVID SHOEMAKE, ET. AL. Appellees CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and the Court of Appeals may evaluate possible disqualification or recusal. 1. Marilyn Newsome, Appellant; 2. David Shoemake, Appellee; 3. Joe Dale Walker, Appellee; 4. Peoples Bank, Appellee; 5. Chad Teater; Appellee; 6. Chris Dunn; Appellee; 7. Keely McNulty, Appellee; 8. Terrell Stubbs, Esq., counsel of record for the Appellant; Lauren Cavalier Stubbs, Esq., counsel of record for the Appellant; 9. Krissy Nobile, Esq., counsel of record for David Shoemake, Appellee; Harold E. Pizzetta, III, Esq., counsel of record for David Shoemake; Appellee; 10. Robert G. Evans, Esq., counsel of record for Joe Dale Walker, Appellee; 11. William Brabec, Esq., counsel of record for Peoples Banks and Chris Dunn; Appellee; Robert Parrott, Esq., counsel of record for Peoples Banks and Chris Dunn; Appellee; i

3 12. Marc Brand, Esq., counsel of record for Chad Teater, Appellee; 13. Alexander F. Guidry, Esq., counsel of record for Keely McNulty, Appellee; Danny A. Drake, Esq., counsel of record for Keely McNulty, Appellee; and 14. Judge James Bell, Special Chancellor Respectfully Submitted, Marilyn Newsome, Appellant By: /s/ Lauren Cavalier Stubbs TERRELL STUBBS (MSB No. 8017) LAUREN CAVALIER STUBBS, (MSB#105114) Attorneys for Marilyn Newsome ii

4 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI APPEAL NO TS MARILYN NEWSOME Appellant Vs. DAVID SHOEMAKE, ET. AL. Appellees TABLE OF CONTENTS Page 1. CERTIFICATE OF INTERESTED PERSONS... i, ii 2. TABLE OF CONTENTS... iii, iv 3. TABLE OF AUTHORITIES.. v 4. STATEMENT OF THE ISSUES STATEMENT OF THE ASSIGNMENT STATEMENT OF THE CASE 3 A. Nature of the Case... 3 B. Course of Proceedings Below and Statement of the Facts SUMMARY OF THE ARGUMENT ARGUMENT 21 Standard of Review. 21 I. The Chancellor erred in entering the Rule 54(b) Order and Final Judgment filed February 2 nd, 2016 on Defendant Walker s Motion to Dismiss; Memorandum Opinion; Order and Final Judgment on Defendant, Walker s Motion to Dismiss; the Rule 54(b) Order and Final Judgment filed February 2 nd, 2016 on Defendant Shoemake s Motion to Dismiss; Memorandum Opinion; Order and Final Judgment on Defendant, Shoemake s Motion to Dismiss.. 22 II. The Chancellor erred in granting Defendant Shoemake s Motion to Stay Discovery filed September 4 th, iii

5 III. The Chancellor erred in entering the Order filed September 4 th, 2015 denying Plaintiff s Motion to Disqualify Attorney General 29 IV. The Chancellor erred in entering the Order filed February 2 nd, 2016 Denying Plaintiff s Motion to Set Aside and Vacate Order Granting Defendant Shoemake s Motion to Stay Discovery and Order Denying Plaintiff s Motion to Disqualify Attorney General but Granting Request for Record to be Made CONCLUSION CERTIFICATE OF SERVICE 35 iv

6 TABLE OF AUTHORITIES CASES: Page Ashcroft v Iqbal, 556,U.S. 662, S. Ct , 173 L. Ed. 2d. 868 (2009) 22 In re Conservatorship of Bardwell, 849, So. 2d 1240, 1246 (Miss. 2003). 19, 20 Bell Atl. Corp. v Twombly, 550 U. S. 544, 555, 127 S. Ct. 955, 167 L. Ed. 2d. 929 (2007).. 22 Carpenter v Berry, 58 So. 3d 1158, (Miss. 2011) 20, 27 In re Conservatorship of Cole, 958, So. 2d (Miss. Ct. App. 2007).. 19 Cox v Howard, Weil, Labouisse, Friedrichs, Inc., 512 So. 2d 897 Miss. 1987) 23, 23 Craver v Craver, 298 N. C. 231, 258 S. Ed. 357 (1979) 21, 32 Gonzales v Kay, 577 F. 3d 600 (5th Cir. 2009). 22 Hayden v State, 972 So. 2d 525 (Miss. 2007). 20, 30 Jackson v Jackson, 732 So. 2d 916, 920 (Miss. 1999) 20 Jordan v McKenna, 573 So. 2d 1371, 1377 (Miss. 1990) Malina v Gonzales, 994 F. 2d 1221, (5th Cir. 1993) 20, 24 Mays v Sudderth, 97 F. 3d 107, 110 (5 th Cir. 1996).. 21, 24, 26 Mayo v. Tri-Bell Indus., Inc., 787 F.2d 1007, 1012 (5 th Cir. 1986) 20, 28 In re Guardianship of McClinton, 157 So.3d 862, 870 ( 15) (Miss. Ct. App. 2015) 19, 27 Mireles v. Waco, 112 S. Ct. 286, 288 (1991).. 20, 24 Mississippi Dept. of Human Services v. S.C. 119 So. 3d 1011 (Miss. 2013). 21, 25 Mylett v. Mullican, 992 F.2d 1347, 1352 (5 th Cir. 1993) 25 Reeves Const. & Supply Inc. v. Corrigan, 24 So.3d 1077, 1083 (Miss. Ct. App. 2010) 23 Rodger v. Moore, 101 So.3d 189, 193 ( 8) (Miss. Ct. App. 2012) 21 Smith v. Potter, 400 Fed. Appx. 806, 813 (5 th Cir. 2010). 20, 28 v

7 Stanley v. Scott Petroleum Corp., 184 So. 3d 940, 943 (Miss 2016). 28 STATUTES: Miss. Code Ann Miss. Code Ann , 30 Miss. Code Ann , 25 RULES: M.R.C.P , 33 M.R.A.P. 16(d).. 2 SECONDARY SOURCE: 56 Am. Jur. 2d Motions, Rules, and Orders Mississippi Prac. Encyclopedia MS Law 67:28 24 Mississippi Law of Torts 2:23 (2d ed.) vi

8 STATEMENT OF THE ISSUES I. WHETHER THE CHANCELLOR ERRED IN ENTERING THE RULE 54(B) ORDER AND FINAL JUDGMENT FILED FEBRUARY 2 ND, 2016 ON DEFENDANT WALKER S MOTION TO DISMISS AND MEMORANDUM OPINION, ORDER AND FINAL JUDGMENT ON DEFENANT WALKER S MOTION TO DISMISS AND IN ENTERING THE RULE 54(B) ORDER AND FINAL JUDGMENT FILED FEBRUARY 2 ND, 2016 ON DEFENDANT SHOEMAKE S MOTION TO DISMISS AND MEMORANDUM OPINION, ORDER AND FINAL JUDGMENT ON DEFENANT SHOEMAKE S MOTION TO DISMISS II. WHETHER THE CHANCELLOR ERRED IN GRANTING DEFENDANT SHOEMAKE S MOTION TO STAY DISCOVERY FILED SEPTEMBER 4 TH, 2015 III. WHETHER THE CHANCELLOR ERRED IN ENTERING THE ORDER FILED SEPTEMBER 4 TH, 2015 DENYING PLAINTIFF S MOTION TO DISQUALIFY ATTORNEY GENERAL IV. WHETHER THE CHANCELLOR ERRED IN ENTERING THE ORDER FILED FEBRUARY 2 ND, 2016 DENYING PLAINTIFF S MOTION TO SET ASIDE AND VACATE ORDER GRANTING DEFENDANT SHOEMAKE S MOTION TO STAY DISCOVERY AND ENTERING THE ORDER FILED FEBRUARY 2 ND, 2016 DENYING PLAINTIFF S MOTION TO DISQUALIFY ATTORNEY GENERAL BUT GRANTING REQUEST FOR RECORD TO BE MADE 1

9 STATEMENT OF THE ASSIGNMENT M.R.A.P. Rule 16(d) states The clerk of the Supreme Court, subject to the directions of the Court, will designate those cases retained by that Court for dispositions and those assigned to the Court of Appeals. Although any case, other than those which the Supreme Court is statutorily required to retain, may be assigned to the Court of Appeals, the Supreme Court will retain all cases involving attorney discipline, judicial performance, and certified questions from a federal court. Mississippi Rule of Appellate Procedure Rule 16(d). This appeal arises out of the malicious, wrongful, and unjust actions of two Chancellors in dealing with a conservatorship and the misappropriation of the funds by those Chancellors in said conservatorship. The entire focus of this appeal is based on judicial conduct on and off the bench, and therefore, this appeal should be retained by the Supreme Court. 2

10 STATEMENT OF THE CASE I. Nature of the Case This appeal arises out of a conservatorship established for the benefit of the ward, Victoria Denise Newsome ( Victoria ) in the Chancery Court of Simpson County, Mississippi. While presiding over the conservatorship of Victoria, Chancellor Joe Dale Walker and Chancellor David Shoemake conspired to defraud the ward and her conservator in order to misappropriate conservatorship funds. Subsequently, Joe Dale Walker agreed to plead guilty to corruptly influencing a witness subpoenaed to appear before a Federal Grand Jury proceeding which impeded the criminal investigation into this matter. Chad Teater, nephew of Joe Dale Walker, agreed to plead guilty for lying to the federal grand jury. Chad Teater (contractor) was involved in the misappropriation of conservatorship funds. Keely McNulty, the previous attorney for the conservator, also agreed to plead guilty to a misdemeanor involving her conduct while counsel of record for the conservatorship. To date, the lower court has not taken any steps to provide any relief to the ward and require the responsible parties to provide an inventory and accounting of the misappropriated funds nor have state and federal law enforcement taken steps to make the victim whole, except as to Joe Dale Walker and Chad Teater (part of their plea is to make restitution to Victoria of the difference in the actual value of her home and what was spent.) To date, only $ 3, has been paid back to the conservatorship. Special Chancellor, sua sponte, entered an Order transferring and/or severing a complaint 3

11 for damages and other equitable relief filed by the conservator, Marilyn Newsome, ( Marilyn ) in the conservatorship into a separate cause/matter. More specifically, this is an appeal of the (second appointed) Special Chancellor s final orders granting Defendant Walker s and Defendant Shoemake s Motions to Dismiss, order granting Defendant Shoemake s Motion to Stay Discovery, order denying Plaintiff s Motion to Disqualify Attorney General, order denying Plaintiff s Motion to Set Aside and Vacate Order Granting Defendant Shoemake s Motion to Stay Discovery and order denying Plaintiff s Motion to Disqualify Attorney General but Granting Request for Record to be Made. The following cases and appeals have been filed in this Court that are related to and/or arose out of the administration of the subject conservatorship: 1. Cause No CA SCT styled In Re: The Conservatorship of Victoria Denise Newsome: Marilyn Newsome; 2. Cause No CA SCT styled In Re: The Conservatorship of Victoria Denise Newsome: Marilyn Newsome; 3. Cause No JP SCT styled The Mississippi Commission on Judicial Performance v. Joe Dale Walker; 4. Cause No BD SCT styled The Mississippi Bar v. Joe Dale Walker; 5. Cause No JP SCT styled The Mississippi Commission on Judicial Performance v. Judge David Shoemake; 6. Cause No CA SCT styled In Re: The Conservatorship of Victoria Denise Newsome: Marilyn Newsome. 4

12 II. Course of Proceedings Below and Statement of the Facts Marilyn, who is the natural mother of Victoria Denise Newsome, was appointed Conservator/Conservatrix of Victoria Denise Newsome on July 13, 2010 and continues to serve in said capacity to date. The conservatorship was necessitated by Victoria Newsome s medical condition and a three-million-dollar ($3,000,000.00) settlement of a medical malpractice claim for Victoria Newsome. (R. p ; R.E. p ). On April 13, 2010, Attorney McNulty filed a petition on behalf of Marilyn requesting that Marilyn be appointed conservator of the person and estate of her daughter, Victoria Newsome. On June 24, 2010 and without leave of court, Marilyn Newsome, Louise Newsome, and Latosha Newsome, as joint petitioners, filed an Amended Petition for Appointment of Conservator seeking to have Marilyn appointed as conservator of the estate and person of Victoria. McNulty, on behalf of Marilyn, did not provide any notice to any interested party that Marilyn intended to bring the Amended Petition on for hearing on July 14, Without even minimum compliance with the statutes and rules concerning notice or waiver of notice, Walker executed the Decree Appointing Marilyn Conservator based on the Amended Petition for Appointment of Conservator on July 14, (R. p ; R.E. p ). There is no inventory or accounting filed in the court record of the conservatorship for the year 2010 as required by the Letters of Conservatorship and Mississippi law. On January 10, 2011, Marilyn, through counsel, Charles Merkel, III, filed a Petition for Authority to Compromise and Settle Disputed Claim, For Approval and Establishment of Trust, and For Other Relief seeking authority to settle Victoria s medical malpractice claim and disburse the settlement proceeds of 5

13 $3,000, as follows: $1,239, Merkel and Cocke, P.A $8, Medicaid for its lien; $145, For purchase of home located at 657 Hwy 149, Magee, MS $25, To Marilyn for payment of taxes, insurance, utility deposits $17, Marilyn for past services and expenses $1, Keely McNulty, Esq. for legal services rendered in custody matter $1,000, To purchase structured settlement annuity $563, To SPECIAL NEEDS TRUST $3,000, (R. p ; R.E. p ). On January 13, 2011, the court entered a Decree authorizing Marilyn to compromise the medical malpractice claim and disburse the $3,000, proceeds as follows: $1,238, Merkel and Cocke, P.A. $8, Medicaid $17, To Marilyn for past services and expenses $5, Keely McNulty, Esq. for legal services in child custody matter $1,000, To purchase annuity $729, To Merkel & Cocke, P.A. Trust Account $2,998, (R. p ; R.E. p ). Walker did not approve the purchase of the home as requested in the petition. He simply crossed out said paragraph. Walker also increased the fee to McNulty from $1, to $5, The Decree or the record does not set forth any findings to support the above modification to the relief requested. The Decree also fails to account for $1, of the settlement proceeds. (R. p ; R.E. p ). 6

14 Marilyn established a checking account at Peoples Bank for the conservatorship. Chris Dunn, was an employee of Peoples Bank and was acting within the scope and course of his employment with Peoples Bank. Neither McNulty nor the Bank has/had authority to negotiate checks on the conservatorship account at Peoples Bank. (R. p ; R.E. p ). On March 31, 2011, Walker entered an ex parte order: (1) summarily denying a petition for approval of purchase of a home for Victoria and her family that is not in the record; (2) ordering the purchase of real property to build a home; (3) ordering the purchase of a mobile home; (4) ordering monies to be deposited in the conservatorship account to pay for the purchase of said real estate (no bids), mobile home (no bids), home construction (no bids in file or record), home maintenance expenses, and other related expenses pending prior approval and upon final amounts being determined, and (5) ordering $1, paid unto Marilyn for reimbursement of expenses and $5, to McNulty for legal services. There is no petition filed by Marilyn requesting the above relief and no record that Marilyn was present at the ex parte conference. (R. p ; R.E. p ). Without Marilyn s involvement, Walker continued executing ex parte orders without proper petitions for relief being filed by McNulty nor any record finding and/or adjudication of orders. Said orders were for the purchase of real property, purchase and placement of a mobile home on said property, approving all costs associated with foregoing purchases, construction of a suitable special needs home, withdrawal from conservatorship account for purchase of real property and mobile home, and legal fees to be paid to McNulty. (R. p ; R.E. p ). 7

15 McNulty continuously prepared and presented orders to the court for attorney s fees without itemized statements containing hours expended on the legal services nor an hourly rate. Moreover, Walker continuously approved orders granting monies to be withdrawn from conservatorship account without the involvement of Marilyn and in violation of all due process concerns. (R. p ; R.E. p ). On July 22, 2011, Walker signed another ex parte order transferring the case to Shoemake for the limited purpose of approving and accepting bids for the construction of the home because the owner of C.T. Construction, the company with the lowest bid, was Chad Teater, Walker s nephew. No pleading was filed requesting said transfer and the record does not reflect any findings that supported a transfer of the case. On the same day, Shoemake executed an order adjudicating that C.T. Construction submitted the lowest bid of $273,075.14, authorizing Marilyn to accept said bid for construction of the home, and transferring the case back to Walker. (R. p ; R.E. p ). Again without involvement or a petition being filed by Marilyn, on July 28, 2011, after Shoemake executed the order transferring the case back to Walker, Shoemake executed another ex parte order approving a Construction Management Agreement of C.T. Construction and authorized Marilyn to execute said agreement and make payments under the agreement. The management agreement, prepared and presented by McNulty, required the payment of a flat fee of $30, to C.T. Construction in addition to the $273, (R. p ; R.E. p ). On January 20, 2012, another ex parte order nunc pro tunced to January 12, 2011 was filed wherein Walker appointed McNulty as guardian ad litem for Victoria. There is no petition 8

16 preceding the order filed by McNulty nor a record of any hearing conducted on the matter. Moreover, Walker only found that it was in Victoria s best interest. There is no other basis for the appointment of a GAL. There is no record of McNulty advising the court and Marilyn of the apparent conflicts of interest involved with the dual representation of Marilyn and Victoria. (R. p ; R.E. p ). On January 24, 2012, after being appointed as GAL for Victoria, without any basis, and continuing to represent both Marilyn and Victoria, McNulty, on her own, filed a petition on behalf of Marilyn requesting approval of an additional $23, to reimburse C.T. Construction to allegedly replace several costly materials periodically stolen from the construction site. However, Marilyn did not sign said petition nor did she request the petition be filed. McNulty did not notify Marilyn that McNulty was filing it on behalf of C.T. Construction. McNulty also prepared the affidavit signed by Chad Teater, owner of C.T. Construction. There is no evidence that Victoria was responsible for the loss; however, McNulty stated that Victoria should have to reimburse the contractor $23, McNulty proceeded on just a statement from the owner of C.T. Construction. There was no other evidence to substantiate the $23, figure. (R. p ; R.E. p ). The petition goes on to allege that the total home construction amount of $326, ($273, $30, $23,000.00) will still be lower than any other bid submitted. However, no bids were filed in the court record. (R. p ; R.E. p ). On the same day, McNulty filed a Show Cause Petition as GAL against Marilyn alleging that certain facts and circumstances have come to the attention of McNulty as GAL for Victoria, 9

17 which may be adverse to the personal and financial health and well-being of Victoria and requesting that Marilyn come into court and show why she should not be held in contempt of court for failure to comply with her duties as conservator of Victoria. McNulty testified at a hearing on April 19, 2012, that Walker requested that she file this Show Cause Petition. (R. p ; R.E. p ). On January 25, 2012, McNulty presented an ex parte order to Shoemake wherein the court authorized the $23, payment to C.T. Construction for allegedly stolen materials. (R. p ; R.E. p ). On March 14, 2012, the undersigned, filed his entry of appearance as Attorney for Marilyn Newsome, individually and in her capacity as Conservator/Conservatrix of her daughter, Victoria Newsome with a certificate of service to all counsel of record. On March 20, 2012, McNulty filed a motion to withdraw as counsel for the conservatorship. (R. p ; R.E. p ). On April 9, 2012, McNulty filed a petition for approval of 2011 and partial 2012 annual accounting alleging that the accounting only included the Conservatorship Account of Victoria Newsome located a Peoples Bank in Magee, Mississippi, Account Number: ****050 and the financial statements showed said account received monies in the amount of $477, and incurred expenses in the amount of $422, leaving a balance of $54, as of March 27, The petition further alleged that $312, was disbursed for the construction of the permanent residence of Victoria (inclusive of the $23, for stolen materials). McNulty attached a ledger and a construction ledger that she prepared to the petition. The ledgers do not substantiate any of the figures with vouchers, invoices, receipts, financial statements, cleared 10

18 checks, etc. The amounts for the construction ledger came from the owner of C.T. Construction. There is no documentation to substantiate the $312, expended for the construction of the new home. There is no inventory of assets comprising Victoria s estate. Victoria s medical malpractice claim was settled for $3,000, and with those proceeds, attorney s fees have been paid, annuities, certificates of deposits, real estate, and personal property have been purchased, and a residence has been constructed. McNulty failed to include any of the above assets in her accounting. (R. p ; R.E. p ). McNulty, as counsel for the Conservator and GAL, failed to file an inventory and accounting for the year On April 17, 2012, McNulty filed a Motion to Withdraw as Counsel and Guardian Ad Litem seeking a court order allowing her to withdraw as counsel for the Conservatorship and as GAL for Victoria Denise Newsome and for payment of legal her services. McNulty attached a statement of her legal services without any itemization of time or hourly rates. On April 17, 2012, Marilyn filed an Answer to McNulty s Petition for Approval of 2011 and Partial 2012 Accounting denying the allegations contained in said petition. Marilyn also filed a response to McNulty s motion to withdraw objecting to the attorney s fees requested by McNulty. (R. p ; R.E. p ). On April 19, 2012, the parties appeared for a hearing on McNulty s Petition for Approval of 2011 and Partial 2012 Accountings and Amended Motion to Withdraw. McNulty s testimony at this hearing proved that she and both Chancellors violated numerous ethical rules and court rules on numerous occasions while depleting $400, or more of Victoria s assets. Moreover, the court failed to require the conservator be involved in the administration of her 11

19 daughter s estate. (R. p ; R.E. p ). McNulty was allowed to represent Marilyn, act as conservator, act as GAL of Victoria, represent C.T. Construction in obtaining an additional $23, for allegedly stolen materials, and even close the loan on the real property. However, McNulty continually testified that she didn t actually represent Marilyn, but continued to obtain attorney s fees with regard to work she claimed she performed for Marilyn. McNulty and both Walker and Shoemake failed to advise Marilyn of the conflicts of interest involved with the foregoing attorney conduct and failed to obtain any waiver of the conflicts. The court failed to prohibit the conflicts and even requested that McNulty file and notice a Show Cause Petition against Marilyn. (R. p ; R.E. p ). Dunn and Peoples Bank did not require Marilyn s signature on any of the checks negotiated on the conservatorship account. McNulty, Walker, Shoemake, and Teater controlled the entire process from purchasing the real estate, the bidding process for construction of the new home, and also the entire construction process even though McNulty was not qualified or authorized to do so. McNulty called contractors and asked them to submit bids, then McNulty presented an ex parte order to Shoemake representing that she had selected the lowest bid. McNulty testified that she was unsure if Marilyn filed a petition with the bids attached. The record in the conservatorship reflects that a petition was not filed nor were the bids filed. (R. p ; R.E. p ). At the conclusion of the April 19 th hearing, the court ordered McNulty to provide a copy of everything and place the originals in the court file. After the April 19 th, 2012 and April 24, 2012 hearings and after the court allowed McNulty to withdraw and provide documentation to substantiate her 2011 and 2012 accountings, McNulty filed a Petition for Approval of Correction 12

20 of Construction Fund Amount and To Authorize Transfer and Withdrawal of Funds as attorney for Marilyn. In said petition, McNulty alleged that the original bid from C.T. Construction was inconsistent with the actual bid due to a typographical error and the actual bid was $296, and the difference of $23, be transferred to the conservatorship account. McNulty filed this petition on behalf of Marilyn after she testified repeatedly that she didn t represent Marilyn, after the undersigned had entered an appearance on behalf of Marilyn, and after the court allowed her to withdraw as counsel at the hearing on April 19, Moreover, McNulty failed to notify the undersigned of the filing of the petition as there is no certificate of service annexed to the petition and no record was made. (R. p ; R.E. p ). On April 24, 2012, which was also after the undersigned had entered his appearance, McNulty filed another petition, without authority, on behalf of Marilyn requesting approval of contractor to construct the residence. The petition has five contractor bids annexed to it and asserts that C.T. Construction s bid of $273, is the lowest. Interestingly, the bid for C.T. Construction totals $296, McNulty failed to notify any party or counsel of record that she was continuing to file pleadings on behalf of Marilyn as conservator. The petition does not contain a certificate of service. No record was made. (R. p ; R.E. p ). On April 24, 2012, McNulty filed a third petition allegedly on behalf of Marilyn alleging and requesting that five bids were obtained, C.T. Construction submitted the lowest bid of $273,075.14, that $273, should be transferred to the conservatorship account, $2, to be paid to Designers II, Betsy Morrow, LLC for house plans, $5, be placed in conservatorship account for utilities, etc., and a blank sum to McNulty for legal services rendered 13

21 with seven exhibits attached. Said motion did not contain a certificate of service to counsel of record or interested parties. On April 24, 2012, McNulty filed another Amended Motion to Withdraw as Counsel and as Guardian Ad Litem. (R. p ; R.E. p ). Then an ex parte order prepared and presented by McNulty signed by Walker dated March 26, 2012 appears in the court record that is not stamped filed authorizing a $6, payment to C.T. Construction. McNulty failed to notify Marilyn or her counsel that she was presenting said ex parte order to the court. No record was made. (R. p ; R.E. p ). Another ex parte order signed by Shoemake dated March 26, 2012 nunc pro tunced to August 2, 2011 appears in the court record that is not stamped filed. Said order was prepared and presented by McNulty and authorized an additional $23, to be paid to C.T. Construction. McNulty and the court failed to notify Marilyn or her new counsel that McNulty was presenting said ex parte order to the court. No record was made. (R. p ; R.E. p ). On May 14, 2012, Walker entered an ex parte order allowing McNulty to withdraw as counsel for Marilyn and Victoria. McNulty failed to notify Marilyn or her counsel that she was bringing forth her Amended Motion to Withdraw as counsel on May 8, No record was made. (R. p ; R.E. p ). On May 14, 2012, McNulty filed an amended petition for approval of 2011 and partial 2012 annual accounting alleging that the accounting only includes the Conservatorship Account of Victoria Newsome located a Peoples Bank in Magee, Mississippi, Account Number: ****050 and the financial statements show said account received monies in the amount of $477, and 14

22 incurred expenses in the amount of $422, leaving a balance of $54, as of March 27, The petition further alleged that $312, was disbursed for the construction of the permanent residence of Victoria (inclusive of the $23, for stolen materials). The petition further alleged that the previous 2011 and 2012 accounting was amended to include all invoices, bills, and documents, which were presented to McNulty for payment as well as a partial bank statement, which entailed all activity from the inception of the conservatorship account on March 31, No one else was notified. (R. p ; R.E. p ). On May 14, 2012, McNulty filed one hundred two (102) copies of the checks drawn on the conservatorship account in 2011 making up $370, in expenses. Not a single check was negotiated by Marilyn, who established the account at Peoples Bank. McNulty did not include any documentation to support any account activity in 2012 reflected on her ledgers other than a few utility invoices in the accounting. McNulty also filed documents to substantiate payments for the utilities and other minor expenses, which represent a small percentage of the disbursements from the conservatorship account. There is not one document to support any of the $312, disbursed for the construction the new home other than the construction ledger. The accounting filed by McNulty fails to account for any assets of Victoria s estate other than the checking account at Peoples Bank. (R. p ; R.E. p ). On May 23, 2012, Marilyn, through counsel, filed an objection to the Amended Petition for Approval of 2011 and Partial 2012 Annual Accounting Filed by McNulty, Former Attorney for the Conservator/Conservatrix alleging that the proposed accounting was incomplete and not in compliance with the Uniform Chancery Court Rules concerning accountings, specifically, that 15

23 McNulty failed to inventory and account for all assets, real and personal, of the estate of the Ward and the disbursements failed to show the purpose of the estate expenditures. Also, on May 23, 2012, Marilyn filed a petition requesting that the court approve her representation agreement with The Stubbs Law Firm, PLLC. (R. p ; R.E. p ). On May 24, 2012, the court entered an order requiring McNulty to provide an Amended 2011 and Partial 2012 Annual Accounting with all cost receipts and all documents verifying expenses and expenditures of the conservatorship by May 21, 2012 as well as all bank statements of the conservatorship through March Also, on May 24, 2012, the court approved and allowed the Amended 2011 and Partial 2012 Accounting filed by McNulty. (R. p ; R.E. p ). On May 31, 2012, Marilyn filed her Motion to Reconsider, Alter or Amend Order Approving Amended Accounting of Keely McNulty alleging that McNulty failed to inventory all assets of the Ward and properly account for all disbursements from the conservatorship. On November 13, 2012, the court entered its order, signed by Walker, denying Marilyn s Motion to Reconsider, Alter or Amend Order Approving Amended Accounting of Keely McNulty. On December 11, 2012, Marilyn timely filed her Notice of Appeal appealing the Judgment Approving Amended 2011 and Partial 2012 Annual Accounting of Keely McNulty filed May 31, 2012 and on Order Denying Motion to Reconsider, Alter or Amend Order Approving Amended Accounting of Keely McNulty filed November 13, 2012, signed by Walker. (R. p ; R.E. p ). Without notice to the parties and without any pleading being filed, Walker and Shoemake entered and filed a joint order of recusal dated October 11, 2013 which stated it was being done at 16

24 the direction of the Judicial Performance Commission. After transmittal, Walker and Shoemake instructed the Chancery Clerk to disregard the Order of Recusal and omit it from the court file. On October 14, 2013, Walker and Shoemake executed separate Orders of Recusal with no mention of the Commission on Judicial Performance and with one order being filed after the appointment of the Honorable Hollis McGehee as Special Chancellor. (R. p ; R.E. p ). On January 2, 2014, the Mississippi Commission on Judicial Performance filed its Petition for Interim Suspension of Chancery Court Judge Joe Dale Walker alleging misconduct on the part of the lower court in the administration of this conservatorship. In McNulty s interview with Mississippi Commission on Judicial Performance, she admitted, None of it was through Marilyn s decision making (referring to the administration of Victoria s estate). McNulty further admitted her participation by stating that she was following instructions by the court. Specifically, she stated that Walker told her to advise Teater to raise his bid about $20, McNulty continued on stating that Teater had told her that he had $23, in tools and property stolen, and although Marilyn told McNulty that Teater s workers were stealing things from the construction site, McNulty drafted the affidavit for Teater. (R. p ; R.E. p ). When Teater finished construction on Victoria s home, said home had the following problems which include but are not limited to: missing cabinet pulls throughout the house; no insulation; ceramic tile is cracked throughout the house due to no slab preparation and temperature change due to no insulation; exposed wiring; faulty fireplace and damaged fire box; front yard contains negative drainage causing ponding water; sidewalk is three to five inches below drive elevation; front yard contains no landscaping and drainage; crown molding and casing around door 17

25 frames are separated due to no caulking; cooktop does not work; inconsistent grout lines throughout house; missing grout in master shower; vent fan in laundry room does not work; form was left in place from structural foundation; floor is not level; and other problems and/or defects. (R. p ; R.E. p ). On January 8, 2015, Walker and Teater pled guilty in Federal Court and were sentenced to five (5) months imprisonment and five (5) months home confinement, followed by a two (2) year term of supervised release, and restititon, for their obstruction of the U.S. Attorney s investigation into the administration of the Conservatorship of Victoria Newsome. (R. p ; R.E. p ). On or about June 30, 2015, the Mississippi Commission on Judicial Performance filed its Commission Findings of Fact and Recommendation with the Mississippi Supreme Court requesting that Judge David Shoemake be removed from office for his perjury before the Commission. (R. p ; R.E. p ). On September 2 nd, 2015 the Chancery Court executed an Order Granting Defendant Shoemake s Motion to Stay Discovery that was filed on the 4 th day of September, (R. p ; R.E. p ). On September 2 nd, 2015 the lower court also executed an Order Denying Plaintiff s Motion to Disqualify Attorney General, which was filed on September 4, (R. p ; R.E. p ). On September 4, 2015, Marilyn filed her Motion to Set Aside and Vacate Order Granting Defendant Shoemake s Motion to Stay Discovery and Order Denying Plaintiff s Motion to Disqualify Attorney General and for Record to be Made. (R. p ; R.E. p ). On September 17, 2015 Appellee filed David Shoemake s Response in Opposition to 18

26 Plaintiff s Motion to Set Aside and Vacate. On September 18, 2015, Joe Dale Walker filed Joe Dale Walker s Response in Opposition to Plaintiff s Motion to Set Aside and Vacate and Joinder in David Shoemake s Response in Opposition to Plaintiff s Motion to Set Aside and Vacate. (R. p ; R.E. p ). On February 2, 2016, the lower Court entered Rule 54(b) Order and Final Judgment on Defendant Walker s Motion to Dismiss; Memorandum Opinion, Order and Final Judgment on Defendant Walker s Motion to Dismiss; Rule 54(b) Order and Final Judgment on Defendant Shoemake s Motion to Dismiss; Memorandum Opinion, Order and Final Judgment on Defendant Shoemake s Motion to Dismiss; Order Denying Motion to Set Aside and Vacate Order Granting Defendant Shoemake s Motion to Stay Discovery and Order Denying Plaintiff s Motion to Disqualify Attorney General but Granting Request for Record to be Made; and Order Granting Motion to Amend (Complaint). (R. p ; R.E. p ). All throughout the history of this conservatorship, Appellees prevented Marilyn from discovering their actions and made repeated efforts to keep Marilyn from discovering their wrongful actions. Marilyn did not discover the full extent of the unjust actions taken by Appellees until Walker and Teater pled guilty. (R. p ; R.E. p ). SUMMARY OF THE ARGUMENT It has been stated many times that the chancery court is the ultimate guardian of the minor ward. In re Guardianship of McClinton, 157 So.3d 862, 870 ( 15) (Miss. Ct. App. 2015) (citing In re Conservatorship of Cole, 958 So.2d 276, 281 ( 15) (Miss. Ct. App. 2007)) ( The chancellor is the ultimate guardian of wards of the court. ) Id (citing In re Conservatorship of 19

27 Bardwell, 849 So.2d 1240, 1246 ( 19) (Miss. 2003)) ( We have held that the chancellor is the ultimate guardian of wards. ); Id (citing Jackson v. Jackson, 732 So.2d 916, 920 ( 5) (Miss. 1999)) ( [T]he chancellor is the ultimate guardian of wards of the court ). Id. The supreme court has held: Infants and persons of unsound mind are disabled under the law to act for themselves. Long ago it became the established rule for the court of chancery to act as the superior guardian for all persons under such disability The court will take nothing confessed against them; will make for them every valuable election; will rescue them from faithless guardians, designing strangers, and even from unnatural parents, and in general will and must (emphasis added) take all necessary steps to conserve and protect the best interest of these wards of the court. Id at ( 19) (citing Carpenter v. Berry, 58 So.3d 1158, ( 19) (Miss. 2011). Absolute judicial immunity extends to all judicial acts that are not performed in the clear absence of all jurisdiction. Malina v. Gonzales, 994 F.2d 1121, 1124 (5 th Cir. 1993). Thus, a judge has no immunity (1) for actions taken outside of his judicial capacity, or (2) for actions that are judicial in nature, but occur in the complete absence of all jurisdiction. Id (citing Mireles v. Waco, 112 S.Ct. 286, 288 (1991)). The general rule is that an attorney may not proceed with the representation of a client with whom the attorney has a conflict of interest. Hayden v. State, 972 So. 2d 525 (Miss. 2007). The control of discovery is committed to the sound discretion of the trial court and its discovery rulings will be reversed only where they are arbitrary or clearly unreasonable. Smith v. Potter, 400 Fed. Appx. 806, 813 (5 th Cir. 2010) (citing Mayo v. Tri-Bell Indus., Inc., 787 F.2d 1007, 1012 (5 th Cir. 1986)). 20

28 A party s opportunity to respond to a potentially dispositive motion is deeply imbedded in the concept of fair play and justice. 56 Am. Jur. 2d Motions, Rules, and Orders 32. The rights to notice and an opportunity to be heard on motions in a lawsuit is critically important to the nonmovant, and its omission by the court cannot be considered of little consequence. Craver v. Craver, 298 N.C. 231, 258 S.Ed. 357 (1979). Standard of Review ARGUMENT It is well settled that this Court applies a limited standard of review on appeals from chancery court. The chancery court s factual findings will not be disturbed if they are supported by substantial evidence unless we can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong [or] clearly erroneous[,] or applied an erroneous legal standard. Questions of law receive a de novo review. Rodger v. Moore, 101 So.3d 189, 193 ( 8) (Miss. Ct. App. 2012). Questions of law, such as interpretation of the Mississippi Tort Claims Act, are reviewed de novo. West s Ann. Miss. Code et seq. Mississippi Dept. of Human Services v. S.C. 119 So. 3d 1011 (Miss. 2013). The district court s application of judicial immunity is a question of law, subject to de novo review. Mays v. Sudderth, 97 F.3d 107, 110 (5 th Cir. 1996). 21

29 I. The Chancellor erred in entering the Rule 54(b) Order and Final Judgment filed February 2 nd, 2016 on Defendant Walker s Motion to Dismiss; Memorandum Opinion; Order and Final Judgment on Defendant, Walker s Motion to Dismiss; the Rule 54(b) Order and Final Judgment filed February 2 nd, 2016 on Defendant Shoemake s Motion to Dismiss; Memorandum Opinion; Order and Final Judgment on Defendant, Shoemake s Motion to Dismiss. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d. 868 (2009). The United States Court of Appeals, Fifth Circuit has stated this court reviews a district court s dismissal under Rule 12(b)(6) de novo, accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiffs. Gonzales v. Kay, 577 F. 3d 600 (5 th Cir. 2009). Factual allegations must be enough to raise a right to relief above the speculative level. Id (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 955, 167 L. Ed. 2d. 929 (2007). The Mississippi Supreme Court discussed Rule 54(b) in Cox v. Howard, Weil, Labouisse, Friedrichs, Inc. 512 So.2d 897 (Miss. 1987). Pursuant to Cox, this Court has the discretionary authority to review a Rule 54(b) final judgment for plain error. Id at 899. Cox further directs that the authority in a trial court to enter a Rule 54(b) judgment should be exercised cautiously in the interest of sound judicial administration in order to preserve the established judicial policy against piecemeal appeals in cases which should be reviewed only as single units. Id at 900. It is incumbent on trial attorneys and trial judges to recognize that Rule 54(b) judgments must be 22

30 reserved for rare and special occasions. Id. In entering a Rule 54(b) certification, it is proper for a trial court to do the following: Consider such factors as whether the claims under review were separable from the others remaining to be adjudicated and whether the nature of the claims already determined was such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals. Reeves Const. & Supply Inc. v. Corrigan, 24 So.3d 1077, 1083 (Miss. Ct. App. 2010) If a commonality of operative facts underlies the claims and defenses of a case, Rule 54(b) certification is not justified. Id. This Court has held that although there were multiple causes of action in a case, where those causes of action arose from a single set of facts, granting Rule 54(b) certification as a practical matter, would result in piecemeal litigation. Id. In this case, there were multiple causes of action that arose from a single set of facts. The Amended Complaint alleges (1) misappropriation of funds, (2) malpractice, (3) violation of civil rights under 42 U.S.C. 1983, (4) conspiracy, (5) fraud, (6) breach of contract, (7) breach of implied warranties and other warranties, (8) breach of fiduciary duties, (9) negligence, (10) negligence per se, (11) gross negligence, and (12) intentional infliction of emotional distress. (R. p ; R.E. p ). Granting Rule 54(b) certification as a practical matter, would result in piecemeal litigation; therefore, the lower court s decision in granting the Rule 54(b) Motion s should be reversed. The Mississippi Tort Claims Act (MTCA) provides: [a] governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: (a) [a]rising out of a legislative or judicial action or inaction, or administrative action or inaction or a legislative or judicial nature. Miss. Code. Ann

31 The MTCA exempts judicial acts or inaction from liability. This exemption appears to codify judicial immunity as it existed at common law and provides judges with absolute immunity for judicial acts performed in judicial proceedings. Judges are afforded this broad scope of immunity because their role in the judicial system requires that they enjoy freedom to determine the law unfettered by the threat of personal collateral attacks. Absolute immunity frees the judicial process from the harassment and intimidation associated with litigation. The immunity is not lost even if judicial actions were in error, done maliciously, or in excess of the judge s authority. The immunity is lost only when the Judge acts in the clear absence of jurisdiction or performs an act that is not judicial in nature. (emphasis added). 8 MS Prac. Encyclopedia MS Law 67:28 citing Mays v. Sudderth, 97 F.3d 107 (5 th Cir. 1996). The immunity is overcome in only two sets of circumstances. Mireles v. Waco, 112 S. Ct. 286, 288 (1991). First, a judge is not immune from liability for non-judicial actions, i.e., actions not taken in the judge s official capacity. Id. Second, a judge is not immune for actions, though judicial in nature, taken in complete absence of all jurisdiction. Id. Whether an act by judge is a judicial one relates to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity. Id. Absolute judicial immunity extends to all judicial acts that are not performed in the clear absence of all jurisdiction. Malina v. Gonzales, 994 F.2d 1121, 1124 (5 th Cir. 1993). Thus, a judge has no immunity (1) for actions taken outside of his judicial capacity, or (2) for actions that are judicial in nature, but occur in the complete absence of all jurisdiction. Id (citing Mireles v. Waco, 112 S. Ct. 286, 288 (1991)). 24

32 Section 1983 of 42 U.S.C. embraces traditional notions of immunity, so does section It is generally understood that a judge, and those similarly situated, have absolute immunity for judicial acts. The role and duties of a judge cannot always be neatly compartmentalized; not all acts by one bearing that title are judicial, nor are all judicial acts deserving of the immunity entrusted exclusively to judges. Mylett v. Mullican, 992 F.2d 1347, 1352 (5 th Cir. 1993). Acts which constitute crimes against the person or property of another person may also constitute intentional torts against that person. If a person has committed such an act, he may be indicted and tried for the crime by the state, and he may also be sued by the victim for the applicable intentional tort. If he is convicted in the criminal trial, he is collaterally estopped to re-litigate in the civil trial the issue of whether he committed the criminal act. So, where defendant was charged with and convicted of the crime his liability was established, and the only issue to be litigated in the civil trial was the amount of the damages, actual and punitive. Mississippi Law of Torts 2:23 (2d ed.) (citing Jordan v. McKenna, 573 So.2d 1371, 1377 (Miss 1990). Questions of law, such as interpretation of the Mississippi Tort Claims Act, are reviewed de novo. West s A.M.C et seq. Mississippi Dept. of Human Services v. S.C. 119 So. 3d 1011 (Miss. 2013). It is clear from Joe Dale Walker s agreement to plead guilty for improperly influencing a federal investigation into this case that he committed acts that are not considered judicial in nature, therefore exposing him to civil liability. Therefore, the Chancellor erred in granting Joe Dale Walker s Motion to Dismiss in this matter, and the lower court s decision should be reversed. 25

33 Further, David Shoemake conspired with Joe Dale Walker to try to cover up the misappropriation of funds, in which he had no jurisdiction to act thereby exposing him to civil liability. Shoemake continued his attempt to cover up the misappropriation of funds by his nonjudicial acts taken before the Commission on Judicial Performance, which charged him with committing perjury. Therefore, the Chancellor erred in granting David Shoemake s Motion to Dismiss in this matter, and the lower court s decision should be reversed. However, if this Court decides that both David Shoemake and Joe Dale Walker are covered under the doctrine of judicial immunity, Appellant respectfully requests this Court review the doctrine of judicial immunity de novo. The district court s application of judicial immunity is a question of law, subject to de novo review. Mays v. Sudderth, 97 F.3d 107, 110 (5 th Cir. 1996). This Court has the power to establish a new precedent regarding judicial immunity so that no ward be taken advantage of in such a harsh way again by the Chancellors who are to be a ward s ultimate guardian as this court has held time and time again. Appellant respectfully requests that this Court review the doctrine of absolute judicial immunity and reverse the lower court s decision to dismiss Joe Dale Walker and David Shoemake from the lawsuit and hold them civilly liable for their improper actions in Victoria Newsome s conservatorship. Each Chancellor, on many occasions, in dealing with the conservatorship as a Chancellor, violated the legal rights of both the Ward and conservatorship. But that was not enough, then, they both, outside their official positions, tried to cover up and hide their illegal actions. No judge should be given protection for actions taken to cover up his/her wrongs in a 26