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JOHN AND SHEILA POPE v. ERNEST L. SCHROEDER

SEPTEMBER 09, 1987

JOHN AND SHEILA POPE
v.
ERNEST L. SCHROEDER, RONALD W. ROBERTS, JOHN W. CHAPMAN AND THOMAS C. ANDERSON



BEFORE HAWKINS, P.J., DAN LEE AND ANDERSON, JJ.

DAN LEE, J., FOR THE COURT:

John and Sheila Pope sued Ronald Roberts, John W. Chapman and Ernest Schroeder for damages due to their alleged negligent legal representation of the Popes in a matter before the Workers' Compensation Commission. The Popes sued Thomas C. Anderson for his alleged negligent legal representation of them in a subsequent bankruptcy proceeding. The complaint, filed on

July 15, 1982, asked for $200,000 in actual and $100,000 in punitive damages.

 On February 7, 1984, the case was passed to the files for failure to pay costs. However, on February 23, 1984, the case was reinstated. After the reinstatement, Roberts, Chapman and Anderson moved for summary judgment. The Popes then moved for summary judgment, also. A hearing on the motions was held on August 22, 1985, during which Schroeder also moved, [ore tenus,] * for summary judgment. The trial judge found for all of the defendants, on grounds that the Popes' problems all stemmed from their attempt to circumvent a legitimate workers' compensation claim, and that the lapses of the attorneys did not cause their liability under the Workers' Compensation Act. Furthermore, the trial judge found that the liability alleged by the Popes was the result of judgments that were void as a matter of law. Therefore, he found no issue of material fact and granted summary judgment to the defendant attorneys as a matter of law.

 We affirm as to attorneys Roberts, Chapman and Anderson, but reverse as to Schroeder. The trial court erred in entertaining Schroeder's summary judgment motion because it was not filed at least ten days prior to hearing in compliance with Rule 56(c) M.R.C.P.

 I.

 John and Sheila Pope were president and vice-president, respectively, of Gulf Coast Fence Company, Inc., a family business. In August 1979, Pope decided to drop his workers' compensation coverage and, theoretically, converted his business to one employing" independent contractors. "(Hearing before Administrative Law Judge, not bound with record, testimony of John Pope) Predictably, in November 1979, one of these" independent contractors, "John Williams, fell while working on a fence and injured himself.

 Williams sought the help of an attorney in bringing an action against Pope before the Commission. Pope went to a firm where Schroeder was an associate, which had represented his father, for legal assistance. The case was assigned to associate Ronald Roberts. Roberts did the initial research on the issue, and he found little factual support in Pope's records to substantiate the independent contractor claim. Nonetheless, Roberts represented Pope before the Administrative Law Judge at the hearing on September 16, 1980. Roberts left the firm at the end of November 1980 to take another job offer.

 The ALJ issued his order on December 15, 1980. In it he found that Williams was an employee of Pope who had suffered

 a compensable injury, and that he was temporarily totally disabled. He ordered Gulf Coast Fence Company to pay Williams $98.00 per week until he reached maximum medical recovery, or for 450 weeks, or until $44,100.00 had been paid, whichever is lesser, plus medical expenses.

 A petition for review of the decision was filed on January 9, 1981, and signed by John Chapman. Chapman stated later that he was not responsible for the file, but that he had signed the petition as an accommodation to Ernest Schroeder. However, because the petition was filed outside the twenty-day review period provided by Miss. Code Ann. 71-3-47 (1972), the Commission denied the petition.

 Subsequently, the Popes considered bankruptcy as an alternative to paying the award. Schroeder recommended Anderson and the Popes paid him $650 to file a Chapter 7 bankruptcy petition for the fence company.

 Williams later obtained a judgment against the fence company and, later still, a judgment against the Popes personally for $58,635. This amount represented the entire compensation ...


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