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11/22/95 COLLEEN S. BOYDSTUN v. BOBBY S. SULLIVAN

November 22, 1995

COLLEEN S. BOYDSTUN, APPELLANT
v.
BOBBY S. SULLIVAN, CHANCERY CLERK, APPELLEE



Before Thomas, P.j., Diaz, And King, JJ.

The opinion of the court was delivered by: Diaz, J., For The Court:

Boydstun v. Sullivan, 95-CA-01370, __ So. 2d __

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. CLARENCE E. MORGAN JR.

COURT FROM WHICH APPEALED: WINSTON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - TORTS (OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE)

TRIAL COURT DISPOSITION:, APPELLANT'S COMPLAINT DISMISSED;, APPELLEE AWARDED DAMAGES FOR MALICIOUS PROSECUTION

DISPOSITION REVERSED AND REMANDED - 7/14/98

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

Coleen S. Boydstun filed a complaint against Bobby S. Sullivan, chancery clerk, in the Circuit Court of Winston County for extortion by a public official. Sullivan counter-sued for malicious prosecution and intentional infliction of emotional distress. Boydstun's claim was dismissed by the circuit Judge due to failure to state a claim upon which relief could be granted. The case proceeded on the counter-claim filed by Sullivan. A motion in limine was granted to Sullivan to keep out evidence of the amount of filing fee that was charged to a bank for filing the same type of instrument. The jury found for Sullivan awarding $500,000 in compensatory damages and $1,000,000 in punitive damages. Aggrieved, Boydstun appeals to this Court.

FACTS

Coleen Boydstun had sixteen deeds of trust on which she attempted to file a substitution of trustee. Boydstun prepared one notice of substitution of trustee and listed the sixteen deeds of trust on the instrument. She had her attorney, Mr. R. W. Boydstun, Jr., file the instrument at the chancery clerk's office where the deputy chancery clerk, Elizabeth Moore, stamped it with the filing stamp. Attorney Boydstun paid $6.00 at that time and later paid an additional $8.00 to cover costs of making marginal notations on the deeds of trust on which he was substituting a trustee.

Attorney Boydstun contends that when he returned to his office he received a call from Sullivan informing Mr. Boydstun that the correct amount of the filing fee which was due was $104 and that the instrument would not be filed until that amount was received. Mr. Boydstun said that he waited three days for the chancery clerk's office to file the instrument. After three days of waiting, Boydstun filed a complaint, on behalf of Mrs. Boydstun, for extortion by a public official. Sullivan claims that the instrument was filed while Mr. Boydstun was still in the office. Sullivan states that although the instrument was not actually inserted in the record book, it was recorded for all intents and purposes by the clerk placing a filing stamp and the date and time on the instrument. Upon being served with the lawsuit, Sullivan began to feel ill. About eighteen days later, Sullivan visited a doctor complaining of pain in his left arm, stress, and having not felt well for a while. Sullivan again visited his doctor a few days later complaining of pain in his back and fever. Sullivan's doctor testified that there was evidence indicating the possibility that Sullivan had suffered a heart attack. Sullivan contends that the stress of the suit filed against him proximately caused his heart attack. Sullivan filed a counter-suit against Boydstun for malicious prosecution of a civil action and intentional infliction of emotional distress.

Sullivan filed a motion for summary judgment on November 7, 1994 arguing that there were no material facts in dispute warranting a jury trial on Boydstun's claims. On November 15, 1994, following a hearing on the motion for summary judgment, the trial court denied the motion by simply ruling that it was not in a position to grant summary judgment, because there were genuine issues of material fact in dispute. However, one day after denying Sullivan's motion for summary judgment, the trial court orally granted Sullivan's motion to dismiss for failure to state a claim upon which relief could be granted pursuant to Mississippi Rule of Civil Procedure 12 (b)(6). Following a trial on the merits of Sullivan's counter-suit, the jury awarded Sullivan $500,000 compensatory damages and $1,000,000 punitive damages in his counter-suit. Boydstun now appeals alleging the following errors:

I. The lower court erred in dismissing the complaint on the grounds that the appellant did not have a cause of action;

II. The lower court erred in refusing to allow appellant to present relevant testimony to the jury by sustaining the motion in limine of appellee;

III. The court never addressed whether or not the appellee/counter-plaintiff ever proved want of probable cause by appellant in filing her original complaint;

IV. The appellee did not prove malice on the part of appellant in the filing of her complaint;

V. The punitive damages should not have been awarded at all, or in the alternative, they were excessive; and

VI. The appellant could rely on the general land mortgage index and the substitution of trustee index as to whether or not appellee intended to record the substitution of trustee instrument.

We reverse and remand.

ISSUES

I. DID THE LOWER COURT ERR IN DISMISSING BOYDSTUN'S COMPLAINT ON THE GROUNDS THAT SHE DID ...


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