APPELLEE'S MOTION FOR RECONSIDERATION

Transcription

1 E-Filed Document Jan :02: CA COA Pages : 9 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI ELIZABETH GRAHAM and MATTHEW GRAHAM vs. JAMES R. "JAMIE" FRANKS, JR. and WHEELER AND FRANKS LAW FIRM, P.C. APPELLANTS NO.: 2015-CA APPELLEES APPELLEE'S MOTION FOR RECONSIDERATION APPEAL FROM THE CHANCERY COURT OF LEE COUNTY, MISSISSIPPI HONORABLE MILLS E. BARBEE, SPECIAL CHANCELLOR Respectfully Submitted: Andrew J. Kilpatrick, MS Bar# 3763 Ashley N. Lane, MS Bar# Gore, Kilpatrick & Dambrino, PLLC 2000 Gateway, Suite 160 Post Office Box 90 l Grenada, Mississippi , (fax) Akilpatrick@gorekilpatrick.com Attorney for Appellees

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI ELIZABETH GRAHAM and MATTHEW GRAHAM VS. JAMES R. "JAMIE" FRANKS, JR. and WHEELER AND FRANKS LAW FIRM, P.C. APPELLANTS NO.: 2015-CA APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome ofthis case. These representations are made in order that the Justices ofthe Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Elizabeth Graham and Matthew Graham... Appellants 2. Jalnes R. "Jatnie)' Franks, Jr... Appellee 3. Wheeler and Franks Law Firm, P.C... Appellee 4. D. Kirk Tharp; Esq. D. Kirk Tharp, PLLC Post Office Box 7332 Tupelo) MS Attorney for Appellants 5. M. Lee Dulaney, Esq. Post Office Box 7357 Tupelo, MS Attorney for Appellant 6. Andrew J. Kilpatrick) Esq. Ashley N. Lane, Esq. Gore, Kilpatrick & Dambrino) PLLC 2000 Gateway, Suite 160 Post Office Box 901 Grenada; Mississippi Attorney for Appellees 7. Honorable Mills E. Barbee, Special Chancellor 2430 Caffey Street Hernando, Mississippi Special Chancellor

3 T ABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS...i TABLE OF CONTENTS...,... ii TABLE OF AUTHORITIES..."...,',...,",...,"..,""..,"...,'...,.,'.,",...,"',...,"""...,..,'.,.,..,'.."iii STATEMENT AS TO ORAL ARGUMENT",...,...,...,...,...,...,... 1 SUMMARY OF TI-IE ARGUMENT.."..."...,...,...,..."...",... 1 ARGUMENT,...,..,.,.,.. ""..."",..."",... "..."..."..,...,',..."... "... "..,... "..."...,'...,.. 1 CONCLUSION..,... 00"... "... "...,"...,'...,...,...,... 4 CERTIFICATE OF SERVICE...,...,... "...,... "... "... "

4 TABLE OF AUTHORITIES Cases: In the Matter of the Estate of Louis St. Martin, Deceased, 145 So. 3d 1124 (Miss. 2014) KulJis v. "l-vinn-dixie ]1/[ontgomelY LLC, 2015-CA-COA, 2016 WL (Miss. Ct. App Mar. 29, 2016), reh'g denied (Aug. 23, 2016), cert. granted 216 Miss. LEXIS 479 (Nov. 17,2016) Singleton v. Stegall, 580 So. 2d at (Miss. 1941) Wilbourn v. Stennett, WUkinson & Ward, 687 So. 2d 1205, 1216 (Miss. 1996) Rules: Mississippi Rules of Appellate Procedure Rule 40(a) Rule

5 STATEMENT AS TO ORAL ARGUMENT Oral argument is not permitted on a motion for rehearing. M.R.A.P. 40(a). SUMMARY OF THE ARGUMENT Appellants' Complaint requests relief based on alleged breaches of the Mississippi Rules of Professional Conduct. A breach of any of the Mississippi Rules of Professional Conduct does not give rise to a cause of action nor does it create any presumption that a legal duty has been breached. Appellees did not set forth any cause of action but for that of an alleged breach of the Mississippi Rules of Professional Conduct. As that is not a viable underlying claim, a Complaint for Discovery calmot proceed. The Court has failed to take into account its holdings that a complaint for discovery must have a meritorious underlying cause of action if it is to be the sale basis for equitable jurisdiction. In addition, this Couti has recently rendered two differing opinions as to the Bill of Discovery, leaving a question as to when ruling of the Court applies. ARGUMENT Appellees request that this matter be reconsidered by this court as it appears that the COUli of Appeals has rendered a decision which is 01' may be in conflict with a prioi' decision, that of Kuljis v. Wil1l1~D;xie Montgomery LLC, 2015~CA~COA, 2016 WL (Miss. Ct. App Mar. 29, 2016), reh'g denied (Aug. 23, 2016), cert. granted 216 Miss. LEXIS 479 (Nov. 17, 2016). As the Court noted in its opinion the instant matter is the second complaint for discovely addressed tius year. The first, the Kuljis matter, was affirmed after being dismissed from ChancelY Court. Appellees would show unto the Court that the instant matter should likewise be dismissed as no meritorious underlying cause of action exists as allegations of violations of the M.R.P.C. are not a proper basis for a civil action. The failure to comply with an obligation or prohibition 1

6 imposed by the M.R.P.C. is a basis for invoking the disciplinary process but violation of a rule (which is adamantly denied by Appellees herein) does not give rise to a cause of action nor does it create any presumption that a legal duty has been breached. As such, there is no discovely or accowlting to be conducted from a cause of action stclmning from M.R.C.P. as no such violation within a civil action can exist. In the case of In the Maller oj the Estate oj LOllis St. Martin, Deceased, 145 So. 3d 1124 (Miss. 2014), the Supreme Court reaffirmed the following: [N]othing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty. (Supra al ); See a/so, Wilbourn v. Stennett, Wilkinson & Ward, 687 So. 2d 1205, 1216 (Miss. 1996); Singleton v. Stegall, 580 So. 2d at (Miss. 1941). (Emphasis added). No basis for a civil action, save violations of the M.R.C.P., is alleged by Appellants. They ask for discovely and accounting but present no meritorious cause of action upon which to base the request. As a violation of the M.R.P.C. can not give rise to a cause of action and no other basis for the Complaint is pled, the Complaint failed to state any legal cause of action against the Appellees. As was pointed out in Appellee's brief and as noted by this Court, Appellants argued at the hearing on the underlying motion that they desired to seek "certain information to support claims of breach of contract, breach of fiduciaty duty and, once discovery is had, the possible amendment to state a claim for conversion/replevin of property". (Emphasis added). However, Special Chancellor Barbee rightfully recognized that "none of those causes of action are pled in their complaint" Appellants' "claims are based entirely on alleged violations of the Rules of Professional Conduct" and he found "such claims, standing alone, are insufficient to SUppOit the present requests for relief', (R.E. page 083, ~ 4). This Honorable Court stated that a"... 2

7 complaint for discovery requires a meritorious underlying cause of action if it is to be the sole basis for equitable jurisdiction." (Emphasis added). (See Opinion, page 7). It appears that a prior decision of this Court, the Kulps decision, is in conflict with the instant decision as the very law relied upon for the dissent in the Kuljis opinion forms the basis of the instant opinion. In Kuljis, a divided Court noted that the substance ofkuljis' claim was in fact negligence and therefore should be brought in Circuit Court. In this matter, with allegations related to the Mississippi Rules of Professional Conduct, there is no court in which to pursue those claims as they at'e not actionable. As such, an accounting pursuant to those alleged violations should be dismissed as there was no existing meritorious underlying cause of action to which to tie the request for discovery and accounting. In addition and since the inception of this appeal, Appellants have filed a circuit court 1 action based on the same alleged facts, but with legal causes of action, wherein discovery can be had and which case is currently pending. Thus, in the alternative, this Honorable Court should stay issuance of the mandate under M.R.A.P. 41 until such time as the Supreme Court of Mississippi rules on Kuljis. Appellnats will not be prejudiced by the delay in finalizing this appeal as proceedings in the circuit court action can proceed. See Complaint filed October 7, 2015, Elizabeth Graham and Matthew Graham v. James R. "Jamie" Franks, Jr. and Wheeler and Franks Law Firm, PC, Circuit Court of Lee County Cause Number (R)(L). 3

8 CONCLUSION For the reasons set forth herein above, Appellees would respectfully request this Honorable Court grant this motion to reconsider in order to clarify the apparent disconnect between the opinion in this matter and that of the Court in its opinion. Alternatively, Appellees would request this Court stay issuance of the mandate under M,R.A.P, 41 until such time as the Supreme Court of Mississippi rules on Kuljis. Respectfully submitted, James R, "Jamie" Franks, Jr. and Wheeler and Franks Law Firm, P.c., Appellees By: lsi Andrew J, Kilpatrick Andrew J, Kilpatrick, MS Bar # 3763 Ashley N, Lane, MS Bar # Gore, Kilpatrick & Dambrino, PLLC 2000 Gateway, Suite 160 Grenada, Mississippi 3890 I Post Office Box 901/38902 Tel: 662, Fax: Attorneys for Appellees 4

9 CERTIFICATE OF SERVICE I; Andrew J. Kilpatrick, an attorney for James R. "Jamie;' Franks, Jr., and Wheeler and Franks Law Finn, P.C., Appellees, do hereby certify that I have this day filed through the Mississippi Electronic Courts and/or mailed, postage prepaid by United States Mail, a true and correct copy of the above and foregoing Appellee's Brief to: M. Lee Dulaney Post Office Box 7357 Tupelo, MS D. Kirk Tharp D. Kirk Tharp, PLLC Post Office Box 7332 Tupelo, MS Attorneys.for Appellants Hon. Mills Barbee Special Chancellor Chancery Court, Lee County, Mississippi 2430 Caffey Street Hernando; MS This the 24th day of January, /s/ Andrew J. Kilpatrick Andrew J. Kilpatrick, MS Bar#