BRIEF FOR APPELLANTS

Transcription

1 E-Filed Document Dec :29: CA Pages: 20 COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CA JOSEPH THOMPSON AND VICKIE THOMPSON APPELLANTS VERSUS WILLIAM P. MEYER, JOHN M. MEYER, BUD'S MOBILE HOMES, INC APPELLEES APPEAL FROM THE CHANCERY COURT OF HARRISON COUNTY, SECOND JUDICIAL DISTRICT, MISSISSIPPI BRIEF FOR APPELLANTS WAYNE L. HENGEN HENGEN & HENGEN ATTORNEYS AT LAW 979 HOWARD A AVENUE BILOXI, MISSISSIPPI (228) MISS. BAR #2289

2 COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CA JOSEPH THOMPSON AND VICKIE THOMPSON APPELLANTS VERSUS WILLIAM P. MEYER, JOHN M. MEYER, BUD'S MOBILE HOMES, INC. APPELLEES CERTIFICATE OF INTERESTED PERSONS 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/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal, to-wit: 1. Joseph Thompson (Appellant) 2. Vickie Thompson (Appellant) 3. Wayne L. Hengen, Esq. (Attorney for Appellants) 4. William P. Meyer (Appellee) 5. John M. Meyer (Appellee) 6. Bud's Mobile Homes, Inc. (Appellee) 7. Virgil G. Gillespie, Esq. (Attorney for Appellees, Meyers and Bud's) 8. Hon. Jim Persons (Chancellor, Trial Court Judge) s/wayne L. Hengen WAYNE L. HENGEN, Attorney of Record for Joseph Thompson and Vickie Thompson, Appellants

3 TABLE OF CONTENTS PAGE(S) TABLE OF CASES, RULES AND AUTHORITIES STATEMENT OF THE ISSUE...,...,...,... 2 STATEMENT OF ASSIGNMENT STATEMENT OF THE CASE: Nature, Course, and Disposition of the Case Statement of the Facts SUMMARY OF THE ARGUMENT ARGUMENT Standard of Review.... Analysis.... Conclusion.... CERTIFICATE OF SERVICE

4 TABLE OF CASES, RULES AND AUTHORITIES CASES PAGE(S) Accredited Sur. & Cas. Co. v. Bolles, 535 So.2d 56 (Miss. 1988) Briney v. u.s. Fid. & GUOI'. Co., 714 So.2d 962 (Miss. 1998) Carpenter v. Beny, 58 So.3d 1158 (Miss. 2011) Clark v. State Farm Mut. Auto. Ins. Co., 785 So.2d 779 (La. 2001) Cucos, Inc. v. McDaniel, 938 So.2d 238 (Miss. 2006) ,12,15 Perkins v. Perkins, 787 So.2d 1256 (Miss. 2001) Sh"ingfellow v. Stringfellow, 451 So.2d 219 (Miss. 1984)... 5,11 Town a/winstonville v. Demco Dish ib., 630 So.2d 40 (Miss. 1993)... 5 Tyler v. Automotive Finance Co. Inc., 113 So.3d 1236 (Miss. 2013)... 10,11 Walkerv. Parnell, 566 So.2d 1213 (Miss. 1986)... 12,13,14,15 RULES AND AUTHORITIES Rule 41(d), Mississippi Rules ofcivii Procedure... II, 12, 13 Rule 60, Mississippi Rules ofcivii Procedure... 5,10,11,14 Rule 60(b), Mississippi Rules of Civil Procedure... 8, 10, 11, 15 Mississippi Chancery Practice, Griffith, Second Addition, 1950, Miss. Code Ann., Miss. Code Ann., Miss. Code Ann., Miss. Code Ann., Miss. Code Ann., 73-3-I I

5 STATEMENT OF THE ISSUE Whether the Chancellor abused his discretion in denying the MOTION FOR RULE 60 RELIEF or was manifestly wrong or clearly erroneous or erroneous in applying the legal standard. 2

6 STATEMENT OF ASSIGNMENT This case has already been assigned to the Court of Appeals of the State of Mississippi. 3

7 STATEMENT OF THE CASE Nature, Course, and Disposition ofthe Case This is a breach of contract case on appeal from the denial of relief from an order that granted the clerk's motion for dismissal for want of prosecution. In June, 2003, the Thompsons entered into an AGREEMENT CREATING JOINT VENTURE with John M. Meyer and William P. Meyer regarding that certain business owned and operated by the Thompsons and identified as End of the Rainbow Trailer Park. Upon becoming aggrieved with the Meyers' failure to abide by the terms and conditions of the subject AGREEMENT, the Thompsons filed an action on January 8, 2008, through attorney David C. Morrison. The three (3) named Defendants, William P. Meyer, John M. Meyer, and Bud's Mobile Homes, Inc., each filed separate responsive pleadings on February 1,2008. Thereafter, certain pretrial motions, orders and notices, together with discovery and subpoenas comprised the action of record. The transcript shows that a hearing took place on March 14,2008, and then the trial on the merits commenced on November 5, Thereafter, more motions and orders were filed together with more notices, and on September 8, 2011, the matter was back in court. The Meyers and Bud's first attorney filed a MOTION TO WlTHDRA W AS COUNSEL. That motion was granted and new counsel entered appearance for the Meyers and Bud's. On January 25, 2013, an ORDER setting out certain procedure was entered, and the matter was set for review on March 18, On April 29, 2014, CLERK'S MOTION TO DISMISS was filed and on June 3, 2014, ORDER DISMISSING CASE FOR WANT OF PROSECUTION was entered. 4

8 On January 5, 2015, the Thompsons new attorney of record, Sean Tindell, filed a MOTION FOR RULE 60 RELIEF, to which a RESPONSE was filed by the Meyers and Bud's new attorney. That matter was heard on September 24,2015, but no order was entered until May 3,2016, at which time, ORDER OVERRULING RULE 60 MOTION TO SET ASIDE ORDER OF DISMISSAL was filed. In between the hearing and the entry of the ORDER, the undersigned new attorney for the Thompsons entered appearance and on June 1, 2016, filed NOTICE OF APPEAL for the Thompsons. The ORDER OVERRULING RULE 60 MOTION set out no findings, but the Court's "reasoning and citations" were dictated into the record and made part of the ORDER. The Court cited Town of Winstonville v. Demeo Distrib., 630 So.2d 40 (Miss. 1993) for the law that dismissal based on a clerk's motion is final and may not be set aside except pursuant to an applicable Rule 60 motion. The Court next cited Stringfellow v. Stringfellow, 451 So.2d 219 (Miss. 1984) for the law that neither ignorance nor carelessness on the part of an attorney provides grounds for relief. Statement of Facts NOTE: The page numbers of the Clerk's Papers used in this BRIEF are those numbers at the bottom center of each page, not those at the bottom right-hand corner so as to be consistent with the numbers used by the Clerk in the Table of Contents. According to the record, there was no hearing on the CLERK'S MOTION TO DISMISS. The record does not show that Joseph Thompson or Vickie Thompson were personally sent or personally received the MOTION nor is there any record that the ORDER DISMISSING CASE FOR WANT OF PROSECUTION was sent to or received by them personally. (CP:270.) 5

9 The Thompsons are elderly and disabled. Vickie Thompson is in a wheelchair and Joseph Thompson has had a number of surgeries. At the time of the first hearing on March 15, 2008, he had suffered an aneurism. (T:5 and 24.) They owned a tract of land and owned and operated the End of the Rainbow Trailer Park, but because of the expense of their disabilities and medical problems, they had fallen behind on their payments to the banle It was their poor financial situation that caused them to enter into the AGREEMENT CREATING JOINT VENTURE in June, (T:6 and 24; CP:9.) At the hearing on September 24,2015, on the MOTION FOR RULE 60 RELIEF, Joseph Thompson was examined and stated that Morrison was "very hard to get along with" and "would get mad". (T: ) He testified that Morrison never advised him about the dismissal. (T: ) He said it took him two (2) months to try to find him and ask him about the case. He eventually found him at his wife's business and tried to talk to him, but he was mad and told Thompson, "I'm not going to - - I ain't lost that case, and I ain't going to lose it. I've got an I.Q. of a genius". Thompson said he was very mean and sarcastic. Thompson asked Morrison what was going to be done, and Morrison's response was, "We won. We ain't got nothing to worry about. Let them do what they want with that land. It belongs to us." (T:135.) This testimony was uncontroverted. Thompson testified that Morrison never told him it was dismissed, he just said that he was still working on it and was going to get it done, and told him, "... [J]ust get out of here, and don't come back. I'll call you when I need you." (T:136.) Thompson also testified that he tried to go see Morrison after that when he found out where he lived. He knocked on the door, but Morrison turned the radio up. Thompson knocked on the door harder, Morrison turned the radio up louder. Thompson said he knocked even 6

10 harder, and Morrison turned the radio up even louder, and so Thompson decided to leave. (T:136.) The Court then allowed into the record that Morrison had been indicted on criminal charges. It was also stated that Morrison had been suspended from the Mississippi Bar for failure to pay dues. 7

11 SUMMARY OF THE ARGUMENT The record shows that the attorney for the Thompsons, David C. Morrison, was suspended from membership in the Mississippi Bar and therefore prohibited from serving as the Thompsons' attorney ofrecord. It was the duty of the secretary of the Mississippi Bar to notify the clerk of court and the judges. Notwithstanding, the record shows that a CLERK'S MOTION TO DISMISS the Thompsons' lawsuit and an ORDER DISMISSlNG CASE FOR WANT OF PROSECUTION were entered, both of which went only to Morrison. While it has been held that gross negligence, ignorance of the rules, ignorance of the law, or carelessness on the part of the attorney will not provide sufficient grouods for Rule 60(b) relief from a judgment, an attorney's infidelity to the client and failure to support the laws of this state should be more than sufficient. The law requires that every attorney "will demean himself with all good fidelity to his client and use no falsehood" and "employ for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and never to seek to mislead by any artifice or false statement of the law". Notwithstanding the oath he took and the statutory duty he was uoder, Morrison did not demean himself "with all good fidelity" to his client. Thompson's uocontroverted testimony was that Morrison lied to him, Morrison misled him, and Morrison never advised him about dismissal. He testified that Morrison told him that he had not lost the case and that he was not going to lose the case, that they had won, that there was nothing to worry about, and that the land was theirs. He told Thompson that he was still working on it, and he was going to get it done. These statements were intentionally misleading, they were not true, and they were in violation of state law. 8

12 The record before this Court sets out extraordinary and compelling circumstances. The Thompsons were denied notice that their case was going to be dismissed, and they were denied notice that an order had been entered. 9

13 ARGUMENT Standard of Review The standard of review for an appeal of a Rule 60 motion is abuse of discretion. Motions that seek relief from a judgment pursuant to Rule 60 of the Mississippi Rules of Civil Procedure are addressed the sound discretion of the trial court. The only question to be asked on appeal is whether the trial court's ruling on such a motion amounts to an abuse of discretion. Tyler v. Automotive Finance Co. Inc., 113 So.3d 1236, 1239 (Miss. 2013). "The finding of the trial court will not be disturbed unless the judge was either manifestly wrong or clearly erroneous or erroneous in applying the legal standard. Cucos, Inc. v. McDaniel, 938 So.2d 238, 245 (Miss. 2006) (citing Perkins v. Perkins, 787 So.2d 1256, 1261(Miss. 2001)). Analysis Rule 60(b) of the Mississippi Rules of Civil Procedure is as follows: "(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: "(1) fraud, misrepresentation, or other misconduct of an adverse party; "(2) accident or mistake; "(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 5 9(b); "(4) the judgment is void; "(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; "(6) any other reason justifying relief from the judgment." 10

14 "Relief under Rule 60(b)( 6) is reserved for extraordinary and compelling circumstances". The Rule has been called a "grand reservoir of equitable power to do justice in a particular case". Carpenter v. Berry, 58 So.3d 1158, 1162 (Miss. 2011) (citing Briney v. u.s. Fid. & Guar. Co., 714 So.2d 962,966 (Miss. 1998)). "As a general rule, the 'extraordinary relief provided for by Rule 60(b) will be granted 'only upon an adequate showing of exceptional circumstances,' and gross negligence, ignorance of the rules, ignorance of the law, or carelessness on the part of the attorney will not provide sufficient grounds for relief." Tyler, 113 So.3d at 1241) (citing Accredited Sur. & Cas. Co. v. Bolles, 535 So.2d 56 (Miss. 1988) and Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss. 1984)). When ruling on a Rule 60 motion, a balance must be struck between granting a litigant a hearing on the merits with the need and desire of the court to achieve finality in litigation. Stringfellow v. Sh'ingfellow, 451 So.2d 219, 221 (Miss. 1984). Rule 41 (d) of the Mississippi Rules of Civil Procedure is as follows: "(d) Dismissal on Clerk's Motion. "(1) Notice. In all civil actions wherein there has been no action of record during the preceding twelve months, the clerk of the court shall mail notice to the attorneys of record that such case will be dismissed by the court for want of prosecution unless within thirty days following said mailing, action of record is taken or an application in writing is made to the court and good cause shown why it should be continued as a pending case. If actions of record is not taken or good cause is not shown, the court shall dismiss each such case without prejudice. The cost of filing such order of dismissal with the clerk shall not be assessed against either party. "(2) Mailing Notice. The notice shall be mailed in every eligible case not later than thirty days before June 15 and December 15 of each year and all such cases shall be presented to the court by the clerk for action thereon on or before June 30 and December 31 of each year. These deadlines shall not be interpreted as a prohibition against mailing of notice and dismissal thereon as cases may become eligible for dismissal under the rule. This rule is not a limitation upon any other power that the court may have to dismiss any action upon motion or otherwise." 11

15 The law is that Rule 41 (d) of the Mississippi Rules of Civil Procedure should be construed liberally. A similar standard has been applied numerous times with regard to discovery violations. The liberal construction should be in favor of maintaining the plaintiff s suit. Dismissal should be considered a last resort. Any dispute about satisfaction of the Rule that can be resolved in favor of the plaintiff should be resolved in favor of the plaintiff. Cucos, 938 So.2d at "In considering which cases should be pruned from the docket pursuant to Rule 41 (d), the trial court in using its discretion should employ a balancing concept. (Citation omitted.) There are typically two competing policy considerations. (Citation omitted.) The Court must weigh the great social interest in provision of every litigant with his day in court and the attempt to not deprive the plaintiff of that opportunity for technical carelessness or unavoidable delay against the purpose of the Rule as found by the Court in Walker to be achievement of the orderly expedition of justice and control by the trial court of its own docket. Cucos, 938 So.2d at 243 (citing Clark v. State Farm Mut. Auto. Ins. Co., 785 So.2d 779, 787 (La. 2001) and Walker v. Parnell, 566 So.2d 1213,1216 (Miss. 1986)). The record shows that at the hearing on the MOTION FOR RULE 60 RELlEF, it was announced that Morrison had been suspended for failure to pay dues. (T: ) Mississippi law provides that all resident persons now or hereafter admitted to the practice oflaw in this state shall be members of the Mississippi Bar. Miss. Code Ann., and 103. The law also provides that in the event a member of the Mississippi Bar fails to pay enrollment fees, he shall stand suspended from membership in the Mississippi Bar. Miss. Code Ann., According to the record and the cited statutes, Morrison was prohibited from serving as Thompsons' attorney of record. If an attorney fails to pay his enrollment fees and he stands suspended from membership in the Mississippi Bar, it is the duty of the secretary to notify not only the delinquent attorney, but also the courts of the county of his last known address by mailing such notice to the presiding judge and to the clerk of such court. Miss. Code Ann., The record shows that 12

16 Morrison was suspended for failure to pay dues, yet a CLERK'S MOTION TO DISMISS the Thompsons' suit was filed and an ORDER DISMISSING CASE FOR WANT OF PROSECUTION was entered, both of which only went to Morrison who was prohibited from serving as attorney of record. Consider Walker, supra. There, the clerk sent the notice of dismissal to the office of a prior attorney who had withdrawn. The then current attorney had failed to enter appearance, but the case turned on the clerk addressing it to a "non-existent person", even though sent to a prior attorney's address. The ruling was that it was the clerk's fault. "Proper notice was not given to the Walkers or even to their last attorney of record..." The Court held that Rule 41 (d) was defectively administered, and the trial court should have reinstated the case. In addition, the record also shows that Morrison had other personal problems with which he was suffering including an indictment on criminal charges. (T: ) The record shows that in June, 2003, the Thompsons found themselves in a difficult position. They had serious medical problems and debts from those problems and from their business that they really could not handle. They were elderly, and they were disabled. They had been disabled for quite a number of years. (T:5.) Joseph Thompson testified about this when the trial on the merits began on November 5, 2009: "Well, at the time I had a problem with the IRS, and I paid the IRS off. And the State came in the back door of the situation to get their money. And I had to borrow money from the bank, and I did. "And I wound up - - I had open heart surgery and since had stints put in. And I was in trouble, so I needed someone to help me out. And I had talked to a few people, that I had gotten through my son-in-law, with the Meyer brothers and they were going to payoff all my debts on the property so I'd be free clear, take it out of my name so that no one could put a judgment against me until we sold the property and split the profits. And it got messed up and turned around." (T:24.) (See also AGREEMENT CREATING JOINT VENTURE, Exhibit B to COMPLAINT, CP:9.) 13

17 As part of the deal and to carry out their obligations set out in the subject AGREEMENT CREATING JOINT VENTURE, the Thompsons executed a WARRANTY DEED to Bud's Mobile Homes, Inc., on Juoe 27, 2003, conveying both their home and three (3) parcels comprising their business, End of the Rainbow Trailer Park. (CP:6.) All of these things illustrate the desperate situation in which the Thompsons fouod themselves and why it was in their best interest to do everything they could to be successful with the action they filed. They had no idea that they did not have an attorney of record. As the Walker Court stated in its closing comment, "This is a case where the system failed the client rather than the client failing the system." Walker, 566 So.2d at Part of that system is the lawyer who is next in rank to the chancellor as respects the responsibility and importance of his office. It is stated, "The court would be practically powerless to properly administer justice without the aid of learned, industrious and faithful solicitors, and thus a solicitor is universally held to be an officer of the court." Mississippi Chancery Practice, Griffith, Second Addition, 1950, 95. The trial court here held and it has been held many times on appeal that gross negligence, ignorance of the rules, ignorance of the law, or carelessness on the part of the attorney will not provide sufficient grouods for reliefuoder Rule 60. But an attorney's infidelity to the client and failure to support the laws of this state should be more than sufficient. Every attorney, by law, is required to take an oath solemnly swearing that he will demean himself with all good fidelity to his client and use no falsehood. Miss. Code Ann., Further, it is the statutory duty of attorneys to support the laws of the State of Mississippi such as the one cited hereinabove and, "To employ for the purpose of maintaining the causes confided to them, such means only as are consistent with truth, and never to seek to mislead by any artifice or false statement of the law;..." Miss. Code Ann.,

18 The record shows that Morrison did not demean himself "with all good fidelity" to his client. He lied. He misled his client. Thompson's uncontroverted testimony was that Morrison never advised him about dismissal and told him that he had not lost the case and that he was not going to lose it. He also told him that they won and that there was nothing to worry about, that the land was theirs. He told Thompson that he was still working on it, and he was going to get it done. (T: ). These statements were intentionally misleading, they were not true, and they clearly demonstrated that Morrison did not "demean himself with all good fidelity to his client". These statements show that he violated state law. The record shows that Thompson never knew about the CLERK'S MOTION TO DISMISS. He knew nothing about notifying the clerk that he did not want the case dismissed. He had a lawyer. He went to him. His lawyer lied to him. His lawyer misled him. His lawyer violated state law by so doing. The record shows that he was suspended from the practice of law. As the Supreme Court stated, "There is not one scintilla of evidence in the record revealing that the Walkers in any way 'contributed materially to the delay"'. Walker, 566 So.2d The Thompsons did not contribute to delay either, but their case was dismissed. The Court in CliCOS states that Rule 60(b)( 6) is for use only in extraordinary and compelling circumstances. It is submitted that the record here sets out extraordinary and compelling circumstances. The Thompsons were denied notice that the case was going to be dismissed. They were denied notice of the ORDER that dismissed the case. It is submitted that just as in the CliCOS case, the trial judge should have exercised his discretionary capacity "to right the unforeseeable wrong without having to undermine important procedural issues". CliCOS, 938 SO.2d246. The system failed the Thompsons. The Thompsons did not fail the system. 15

19 Conclusion The case should be reversed and remanded for reinstatement upon the trial court's docket for continuation of the trial and/or disposition as the parties deem appropriate. 16

20 CERTIFICATE OF SERVICE I, WAYNE L. HENGEN, do hereby certify that I have this day filed the foregoing BRIEF OF APPELLANT with the Clerk of Court using the MEC system which sends notification of such filing to the following: VIRGIL G. GILLESPIE, ESQ. HON. JIM PERSONS This the 1st day of December, s/wayne L. Hengen WAYNEL.HENGEN 17