Opinion
No. 3:97cv181-D-D.
Filed Date: February 16, 1999.
OPINION
Presently before the court in this legal malpractice action is the Defendants' motion for summary judgment. After considering the motion, the court finds that it should be granted. Therefore, the court shall dismiss all of the Plaintiff's claims with prejudice.
Factual and Procedural Background
In the 1980s, Sunburst Bank made a number of loans to the Plaintiff, John Jemison. On February 28, 1991, Sunburst sued Mr. Jemison in the Circuit Court of DeSoto County, Mississippi, for nonpayment of two of the loans. Mr. Jemison retained the attorney Grady F. Tollison to represent him against Sunburst. At the time, Mr. Tollison practiced law with the firm Tollison, Austin Twiford. Mr. Tollison delegated much of the work in Mr. Jemison's case to another attorney at that firm, Michael Wall.
Union Planters Bank acquired Sunburst on December 31, 1994.
On June 26, 1992, Sunburst filed a motion for partial summary judgment as to one of the loans. On July 3, 1992, Mr. Wall filed on behalf of Mr. Jemison a response, to which Mr. Wall attached no evidentiary support. On March 12, 1993, the Honorable Andrew C. Baker, Circuit Court Judge of DeSoto County, held a hearing on Sunburst's motion. The participants at the hearing were Mr. Wall and Sunburst's attorney Guy Gillespie. Mr. Jemison states that he was present at the hearing, although the transcript of the hearing does not reflect his presence. (Response, pp. 5-6).
Both parties state that Mr. Jemison filed his response on July 3, 1993. (Motion, p. 3; Response, p. 4). However, the date typed on the certificate of service attached to the response is July 3, 1992. (Motion, Exhibit "J," p. 3).
The loan on which Sunburst was moving for summary judgment was evidenced by a promissory note signed by Mr. Jemison on April 26, 1989, in the amount of $76,696.87. At the hearing, Mr. Gillespie argued that Mr. Jemison was in default on the loan (hereinafter "the $76,000 loan"), having only made one payment on it in the amount of $28,000 on or about May 30, 1990. Mr. Gillespie explained that the note was secured by two automobiles and that, in May of 1990, the Plaintiff sold both automobiles for $28,000 and forwarded the proceeds to Sunburst. In exchange for the proceeds, Sunburst released the automobiles as security. At the time of the hearing, the balance of the loan according to Sunburst was $48,771.87 plus interest.
In response, Mr. Wall did not dispute that Mr. Jemison was in default on the $76,000 loan under the original terms of the promissory note, but he argued that Mr. Jemison had an "unwritten understanding" with an officer of Sunburst that the loan at issue "would be rolled over or put into some type of commercial loan whereby he would make semi-annual payments on the note." (Plaintiff's Response, Exhibit "E," Hearing Transcript, p. 4). Mr. Wall also argued that the Mr. Jemison had made a number of "interest payments" on the loan. The only evidence which Mr. Wall submitted at the hearing in support of these arguments was a stack of photocopies of canceled checks which Mr. Wall asserted were proof of Mr. Jemison's interest payments. Mr. Gillespie objected to the introduction of the checks as untimely, and he argued that the checks could only be evidence of payments Mr. Jemison might have made on other loans, but not the one at issue. Although Judge Baker did not rule at the hearing whether he would consider the checks, it appears from the transcript of the hearing that he did not allow Mr. Wall to submit them for consideration.
At the conclusion of the hearing, Judge Baker took the matter under advisement. Several days later, Judge Baker issued an order entitled "Consent Judgment." The consent judgment was prepared and signed by Mr. Gillespie and Mr. Wall. Granting Sunburst's motion for partial summary judgment, it provided in pertinent part as follows:
By agreement of Sunburst Bank and John W. Jemison, this cause came before the Court as a Motion for Summary Judgment as to a portion of the Complaint by Sunburst Bank. After reviewing the Motion and Exhibits to the Motion, and the parties subsequently agreeing hereto, this Court finds that the Motion for Summary Judgment is well-taken and is hereby granted.
Complaint, Exhibit "C." According to Mr. Jemison, Mr. Wall never showed the consent judgment to him before submitting it to Judge Baker. Mr. Jemison also asserts that he did not see the consent judgment or discover its contents until November or December of 1994. The Defendants counter that Mr. Jemison discovered the contents of the consent judgment at the March 1993 hearing because Judge Baker issued his ruling from the bench. This court has reviewed the transcript of the hearing and finds no evidence that Judge Baker ruled from the bench. Concluding the hearing, Judge Baker only stated, "I will look at the file more thoroughly and I will have you a ruling out within the next two or three days." (Plaintiff's Response, Exhibit "E," Hearing Transcript, p. 8).
The trial of the remaining issues in the DeSoto County litigation was originally scheduled for September 13, 1993. On September 7, 1993, the trial was continued. Even though Mr. Jemison had recently told Mr. Wall that he was eager to proceed with the trial as scheduled, Mr. Wall consented to the continuance. Approximately three months later, citing his displeasure with Mr. Tollison and Mr. Wall's handling of several aspects of his case, Mr. Jemison terminated their representation of him. Around this time, the law firm of Tollison, Austin and Twiford dissolved, and Mr. Tollison and Mr. Wall began working with The Tollison Law Firm, P.A.
The trial in the DeSoto County litigation was finally held in June of 1995. At the trial, Mr. Jemison was represented by the Mississippi attorney Luther C. Fisher. Again, since summary judgment had been entered as to the $76,000 loan, the trial only concerned the $60,000 loan. At the trial, Mr. Jemison's defense was essentially that Sunburst had defrauded or tricked [Jemison] by altering a version of the $60,000.00 note so as to make Jemison personally liable thereon. Jemison claimed that the true intent of the parties was only that [a corporation owned by Jemison], and not Jemison as an individual, would be obligated on the note. (Defendants' Motion, Exhibit "Q," "Order on Motion for Sanctions," pp. 1-2.). The jury found for Sunburst on all claims, which included counterclaims by Mr. Jemison for "breach of fiduciary duty and fraudulent alteration." Id. Sunburst subsequently moved for sanctions, arguing that Mr. Jemison's defenses and counterclaims were frivolous and sanctionable under Rules 11 and 56 of the Mississippi Rules of Civil Procedure and under the Mississippi Litigation Accountability Act, codified at section 11-55-1 of the Mississippi Code. Finding that Mr. Jemison's defenses and counterclaims "were interposed in bad faith and for frivolous purposes," Judge Baker granted Sunburst's motion for sanctions and ordered Mr. Jemison to pay Sunburst $37,744.57, which reflected Sunburst's expenses in the litigation. The Mississippi Court of Appeals affirmed the award of sanctions.
Incidentally, Sunburst successfully sued Mr. Jemison in a separate forum for nonpayment of a third loan, and in that litigation the United States District Court for the Western District of Tennessee also sanctioned Mr. Jemison. Affirming the award of sanctions, the United States Court of Appeals for the Sixth Circuit explained that Mr. Jemison "misrepresent[ed] key facts during both deposition and trial testimony, and knowingly [brought and pursued] claims devoid of evidentiary support." Union Planters Bank v. LJ Dev. Co., 115 F.3d 378, 384-85 (6th Cir. 1997) (concluding that Mr. Jemison's conduct constituted "blatant litigation abuses"). Of course, Mr. Jemison's failures in that litigation are irrelevant to the present action.
On October 2, 1997, Mr. Jemison filed the present action against Mr. Wall, Mr. Tollison and the two law firms with which the attorneys worked during their representation of Mr. Jemison. Initially, Mr. Jemison filed the action pro se. On November 26, 1997, Mr. Jemison notified this court that he had retained the attorney Richard Benz, Jr., to represent him in this action. However, on August 26, 1998, Mr. Jemison filed a motion for Mr. Benz to withdraw as attorney, and the court granted the motion on September 3, 1998. Currently, Mr. Jemison is seeking other counsel, but he has indicated in a letter to this court his willingness to proceed pro se in the meantime.
Mr. Jemison wrote the court this letter on November 11, 1998. Within the next month, Mr. Jemison responded to the motion for summary judgment and then supplemented his response. Attached to his supplemental response was a six-page letter which the Mississippi attorney John B. Gillis wrote on behalf of Mr. Jemison to Alan Dershowitz, the renowned professor of Harvard Law School. This letter, dated July 16, 1997, did not concern this action but the aforementioned action between Sunburst and Mr. Jemison in the United States District Court for the Western District of Tennessee. Mr. Jemison has not informed the court why he attached this letter to his supplemental response. Therefore, the court will not presume that Mr. Jemison is currently being represented by either Mr. Gillis or Mr. Dershowitz.
Standard of Review
On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986) ("[T]he burden on the moving party may be discharged by `showing' . . . that there is an absence of evidence to support the non-moving party's case"). Under Rule 56(e) of the Federal Rules of Civil Procedure, the burden shifts to the non-movant to "go beyond the pleadings and by . . . affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324. That burden is not discharged by "mere allegations or denials." Fed.R.Civ.P. 56(e). All legitimate factual inferences must be made in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986). Rule 56(c) mandates the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322. Before finding that no genuine issue for trial exists, the court must first be satisfied that no reasonable trier of fact could find for the non-movant. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).Discussion
Based on the facts of this case, Mr. Jemison brings a number of claims: (1) legal malpractice, (2) breach of fiduciary duties, (3) breach of contract of employment, (4) negligence, (5) fraud, (6) "conspiracy," and (7) violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962. (Complaint ¶¶ 20-25, 27). Mr. Jemison also claims that the Defendants acted "wantonly, willfully, maliciously and/or with gross disregard," so they are liable for punitive damages. (Complaint ¶ 26). Mr. Jemison seeks $500,000 in compensatory damages, $2,500,000 in punitive damages, treble damages under RICO, attorneys' fees and costs. The court has original jurisdiction of the RICO claim and supplemental jurisdiction of the remaining claims. See 28 U.S.C. § 1331, 1367. After reviewing all of these claims, the court finds that summary disposition is appropriate as to each of them. Indeed, several of the claims border frivolity and do not merit substantial discussion. Therefore, the only claim the court will fully discuss is the Plaintiff's claim for legal malpractice. It is this claim on which the parties focus in their briefs to this court.
Because the Defendants' motion for summary judgment will be granted on the merits, the court need not address the Defendants' argument that the relevant statute of limitations bars Mr. Jemison's claims. However, the court notes that the applicable statutes of limitations may not have barred at least some of Mr. Jemison's claims. See Smith v. Sneed, 638 So.2d 1252, 1253 (Miss. 1994) (applying discovery rule to legal malpractice actions).
To successfully bring a legal malpractice claim in Mississippi, a plaintiff must prove the following by a preponderance of the evidence: "(1) existence of a lawyer-client relationship; (2) negligence on the part of the lawyer in handling his client's affairs entrusted to him; and (3) proximate cause of the injury." Wilbourn v. Stennett, Wilkinson Ward, 687 So.2d 1205, 1215 (Miss. 1997). As to the third prong, "the plaintiff must show that, but for [his] attorney's negligence, he would have been successful in the prosecution or defense of the underlying action." Wilbourn, 687 So.2d at 1215.
Here, the Plaintiff cannot show legal malpractice because he offers insufficient evidence to satisfy the third prong of the legal malpractice test. Assuming Mr. Jemison can satisfy the first two prongs, there is no genuine issue as to whether any negligence on the part of the Defendants caused Mr. Jemison's injury having summary judgment entered against him on the $76,000 loan. Mr. Jemison defaulted on the $76,000 loan, and his defenses to Sunburst's claim for nonpayment are devoid of evidentiary support. See Hickox v. Holleman, 502 So.2d 626, 634 (Miss. 1987) ("In the context of the present [legal malpractice] action, the plaintiff/client carries [the burden of satisfying the third prong] by trying the underlying [action] as a part of this legal malpractice case, not by trying to prove or recreate what would or may have happened in some other court at some other time and place."). Mr. Jemison does offer the court a document which he asserts "substantiate[s] the agreement plaintiff had with Sunburst to renew the auto note by reducing 10% of the original balance at six month intervals. . . ." (Supplemental Response ¶ 11 Exhibit "O"). However, this document does not reflect any agreement between Mr. Jemison and Sunburst. Even if the document were to show that Mr. Jemison and Sunburst revised the promissory note to provide for semiannual payments, Mr. Jemison offers no proof that he ever made any payment besides the May 1990 payment for $28,000. Mr. Jemison also offers the court the deposition of a former officer at Sunburst Bank who testified generally that he and Mr. Jemison "were working out" the payment schedules on Mr. Jemison's loans. (Response, Exhibit "C"). This evidence also fails to show that Mr. Jemison and Sunburst reached a revised agreement or that Mr. Jemison made a further payment on the $76,000 loan pursuant to any such agreement. Therefore, summary disposition was appropriate as to the $76,000 loan. Accordingly, Mr. Wall's representation, even if it was negligent, did not cause Mr. Jemison's injury.
Mr. Jemison also cannot show that Mr. Wall caused Mr. Jemison any injury by consenting to the continuance of the trial in the DeSoto County litigation. No reasonable fact-finder could conclude that Mr. Jemison would have prevailed at his trial had it been held as originally scheduled on September 13, 1993. Nor can Mr. Jemison show that Mr. Wall, or any other Defendant, caused Mr. Jemison any injury by any of the other professional failures listed in the Complaint or elsewhere. See Complaint ¶ 20. Indeed, Mr. Jemison has not even designated an expert witness to testify that any Defendant committed any professional failure. See Hickox, 502 So.2d at 635 ("The generally accepted rule is that expert testimony is ordinarily necessary to support an action for malpractice of a professional man in those situations where special skills, knowledge, experience, learning or the like are required.") (quoting Dean v. Conn, 419 So.2d 148, 150 (Miss. 1982)). Mr. Jemison does argue that expert testimony is not necessary to support the instances of malpractice of which he complains. However, he cites no authority to support this argument, and this court finds none.
Mr. Jemison also fails to offer evidence sufficient to support his other claims. His claim for negligence fails for the same reason his legal malpractice claim fails insufficient evidence of causation. His claim for fraud fails because he does not offer any evidence of a false misrepresentation or reasonable reliance, much less causation. His claim for breach of fiduciary duties fails because there is no proof of any breach or, again, causation. His claim for breach of contract fails for the same reason his claim for breach of fiduciary duties fails.
Lastly, Mr. Jemison alleges that his RICO claim, as well as his other claims, are supported by evidence of some sort of conspiracy between the Defendants and certain officers of Sunburst Bank. In one count of the complaint, Mr. Jemison expounds on this allegation as follows:
Some time prior to March of 1993, defendants entered into a conspiracy among themselves, and, on information and belief, with others, to defraud Jemison by entering the consent judgment and facilitating Sunburst's collection activities against him, thereby unjustly depriving him of his property, and to generally "sacrifice him" to Sunburst in an attempt to protect and benefit [the members of the conspiracy].
Complaint ¶ 25. Mr. Jemison offers this court absolutely no proof of any "conspiracy" or RICO violation whatsoever. Indeed, the only proof before this court is that, during the relevant time frame, one of the members of the alleged conspiracy sued Sunburst. Mr. Jemison also alleges that the Federal Bureau of Investigations is currently investigating the alleged conspiracy. However, the only proof Mr. Jemison offers this court of any investigation by the F.B.I. is a letter from an employee of the United States Department of Justice advising Mr. Jemison which office of the F.B.I. to contact in order to request such an investigation. Complaint, Exhibit "E."
Conclusion
No reasonable trier of fact could find for Mr. Jemison on any of his claims. Therefore, t he Defendants' motion for summary judgment shall be granted. A separate order in accordance with this opinion shall issue this day.
ORDER DENYING MOTION TO STRIKE, DENYING MOTION FOR SANCTIONS, GRANTING MOTION FOR SUMMARY JUDGMENT, and DISMISSING ALL OF PLAINTIFF'S CLAIMS WITH PREJUDICE,Pursuant to an opinion issued today, it is hereby ORDERED that
the Defendants' motion for sanctions (entry 32 on the docket) is DENIED;
the Defendants' motion to strike (entry 54 on the docket) is DENIED;
the Defendants' motion for summary judgment (entry 33 on the docket) is GRANTED;
all of the Plaintiff's claims are DISMISSED WITH PREJUDICE; and
this case is CLOSED.
SO ORDERED.