United States District Court, S.D. Mississippi, Western Division
J. PAUL CLINTON and STOKES and CLINTON, P.C., Plaintiffs,
W. RICHARD JOHNSON, SR.; DAVID M. SESSUMS; VARNER, PARKER & SESSUMS, P.A.; and TAMRA WARNOCK, Defendants.
MEMORANDUM OPINION AND ORDER
DAVID BRAMLETTE, District Judge.
This cause is before the Court on motions for summary judgment filed by defendants David M. Sessums ("Sessums") and Varner, Parker & Sessums, P.A. ("Varner, Parker & Sessums")(docket entry 94), Tamra Warnock ("Warnock")(docket entry 95), and W. Richard Johnson, Sr. ("Johnson")(docket entry 96). Also before the Court is a motion for summary judgment on the defendants' counterclaim, filed by plaintiffs J. Paul Clinton ("Clinton") and Stokes and Clinton, P.C. ("Stokes & Clinton") (docket entry 103). Oral argument was held on July 17, 2014. Having carefully considered the motions and responses, the memoranda and oral argument of the parties, as well as the applicable law, and being fully advised in the premises, the Court finds as follows:
According to the plaintiffs' Complaint, plaintiff J. Paul Clinton, a resident citizen of Alabama who is licenced to practice law in Mississippi, sued and took a default judgment for his client, State Farm Mutual Automobile Insurance Company ("State Farm"), against defendant Warnock in Warren County, Mississippi, on November 27, 2006. Compl. ¶ 12 & Ex. A. The default judgment related to a car accident in which Warnock was alleged to have been involved. Compl. ¶ 12 & Ex. A. Shortly thereafter, defendant Johnson, one of Warnock's attorneys, moved to set aside the judgment and a hearing was set on the matter. Compl. ¶ 13. In response to Warnock's Motion, wherein she averred that she was not driving the car when the accident occurred, Compl. Ex. A ¶ 4, Clinton sent a letter and proposed order to Johnson, stating that State Farm would agree to set aside the default judgment and dismiss Warnock from the suit if she would stipulate to certain facts regarding her involvement in the accident. Compl. ¶ 14, 17. Warnock declined State Farm's offer and chose instead to proceed with the hearing. Compl. ¶ 15. At the hearing, Warnock provided testimony supporting her claim that she could not be liable for the accident, and the trial court set aside the judgment. Compl. ¶ 18. Another of Warnock's attorneys at the hearing, defendant Sessums, then moved for sanctions against Clinton, but the trial court declined the request. Compl. ¶ 19 & Ex. C.
Following the hearing, Clinton claims that he approached Johnson in an effort to "promote civility and professional courtesy." Compl. ¶ 22. According to Clinton, Johnson rebuffed his good-faith attempt to smooth over the matter and informed him that another "similar case" was pending in Hinds County. Compl. ¶ 23. Clinton then went to the law office of Varner, Parker & Sessums to speak with Sessums. Clinton states that Sessums was receptive to his overtures and agreed to resolve any similar disputes out of court before filing any motions for sanctions. Coml. ¶ 24. Clinton states he believed the matter had been resolved, but on September 26, 2007, he learned from various clients, family, and friends that the Clarion Ledger was running an advertisement in which Johnson was soliciting potential clients who had been treated similarly to Warnock with the intention of filing a class-action lawsuit against Clinton. Compl. ¶ 29. Through some investigation, Clinton discovered that Varner, Parker & Sessums had paid for the advertisement. Compl. ¶ 30. Upon discovering this information, Clinton contacted both Johnson and Varner, Parker & Sessums to inform them that he believed their conduct violated Mississippi Rule of Professional Conduct 7.2(e), which prohibits a lawyer from directly or indirectly paying for the cost of an advertisement for someone in another firm. Compl. ¶ 31. Sessums responded that Johnson had been associated with the firm in the matter and that the advertisement would continue to run. Compl. ¶¶ 33, 34. In response, Clinton retained counsel and was successful in getting the advertisement permanently enjoined. Compl. ¶ 38.
Subsequently, Warnock, represented by Johnson and Varner, Parker & Sessums, filed a class-action Racketeer Influenced and Corrupt Organizations Act ("RICO") lawsuit in this Court against Clinton and his law firm, which included allegations that Clinton committed wire and mail fraud in his communications with Warnock. Compl. ¶¶ 39, 40. The RICO claim survived Clinton's motion to dismiss, Warnock v. State Farm Mut. Auto. Ins. Co. , 2008 WL 4594129 (S.D.Miss. Oct. 14, 2008), and Clinton spent the next three years defending Warnock's RICO allegations. Compl. ¶ 42. During the course of discovery, Warnock testified that she had received no letters or phone calls from Clinton, his law firm, or his client, an occurrence necessary for the survival of her mail and wire fraud claims. Compl. ¶ 43. Clinton then moved for summary judgment, which this Court granted because Warnock could not produce any evidence of the commission of two or more incidents of fraud and thus could not show a pattern of racketeering activity. Compl. ¶ 46; Warnock v. State Farm Mut. Auto. Ins. Co. , 833 F.Supp.2d 604, 608-09 (S.D.Miss. June 15, 2011). Clinton avers that not only did he spend $789, 429.44 on defending a meritless case, but also his malpractice premium increased 300% as a result of the lawsuit. Compl. ¶¶ 46, 47.
Based on these allegations, Clinton brought seven claims against the defendants. In a previous Memorandum Opinion and Order, Clinton v. Johnson, 2013 WL 870361 (S.D.Miss. March 7, 2013), the Court dismissed four of the claims, leaving only malicious prosecution, abuse of process, and intentional infliction of emotional distress. Clinton seeks the following compensatory damages: fees incurred in defending the RICO lawsuit; the cost of the increase in his malpractice insurance premium; compensation for the harm to his reputation; and compensation for general pain, anguish, and emotional distress suffered as a result of the lawsuit. Compl. ¶¶ 75. He also seeks punitive damages, alleging willful and malicious conduct on the part of the defendants. Compl. ¶ 76.
The defendants have filed an Amended Counter-Claim (docket entry 112) against the plaintiffs for malicious prosecution in the bringing of the plaintiffs' Complaint. The elements of the tort of malicious prosecution under Mississippi law are: (1) the institution of a proceeding (2) by, or at the insistence of, the defendant, (3) the termination of such proceedings in the plaintiff's favor, (4) malice in instituting the proceedings, (5) want of probable cause for the proceedings, and (6) the suffering of injury or damage as a result of the proceedings. McClinton v. Delta Pride Catfish, Inc., 724 So.2d 889, 891 (Miss. 1998). All six of these elements must be proven by a preponderance of the evidence. Van v. Grand Casinos of Mississippi, Inc. , 724 So.2d 889, 891 (Miss. 1998).
As to the third element (termination of proceedings in the claimant's favor), "[i]t is axiomatic that a claim for malicious prosecution does not accrue until the day the underlying proceeding has been terminated." Orix Fin. Servs. v. Allied World Assurance Co., 2005 WL 1923123, *3 (N.D. Miss., Aug. 10, 2005). Because there has been no final judgment in the proceeding brought by the plaintiffs, the defendants' malicious prosecution claim is premature and must be dismissed without prejudice. Id . The plaintiffs' motion for summary judgment is therefore moot.
The defendants' motion for summary judgment asserts, first of all, that the plaintiffs' malicious prosecution claim fails as a matter of law as to both the attorney defendants and their client, Warnock. Specifically, the defendants claim that they had probable cause to bring suit against Clinton, and that they were not motivated by malice.
A motion for summary judgment is appropriately granted when the moving party demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party has the initial burden of identifying relevant portions of the record, including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986).
A contested fact is "material" when it has the potential to change the outcome of the case. Ginsburg 1985 Real Estate P'ship v. Cadle Co. , 39 F.3d 528, 531 (5th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). An issue is "genuine" if "the evidence is sufficient for a reasonable jury to return a verdict for the non-moving party." Id . Amotion for summary judgment is appropriately granted when the moving party demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party has the initial burden of identifying relevant portions of the record, including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986).
If the moving party sustains its burden, the burden shifts to the nonmoving party to show with "significant probative evidence" that a genuine issue as to a material fact actually exists. Conkling v. Turner , 18 F.3d 1285, 1295 (5th Cir. 1994). To overcome summary judgment, the nonmoving party must do more than simply rely on the pleadings or merely rest "upon conclusory allegations, improbable inferences, and unsupported speculation." Krim v. BancTexas Group, Inc. , 989 F.2d 1435, 1449 (5th Cir. 1993). The nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). The non-movant must "designate specific facts showing the existence of a genuine issue for trial." Anderson , 477 U.S. at 250. "The mere existence of a scintilla of evidence is insufficient to defeat a properly supported motion for summary judgment." Id. at 252. Moreover, the nonmoving party must make a showing sufficient to establish the existence of an essential element of its case, an element on which it will bear the burden of proof at trial. Celotex , 477 U.S. at 322.
In light of the facts presented by the nonmoving party, along with any undisputed facts, this Court must decide whether the moving party is entitled to judgment as a matter of law. When deciding a motion for summary judgment, the evidence submitted by the nonmoving party is presumed valid, and all reasonable inferences that may be drawn from that evidence must be drawn in favor of the party opposing summary judgment. Anderson , 477 U.S. at 255. The district court, therefore, must not "resolve factual disputes by weighing conflicting evidence, ... since it is the province of the jury to assess the probative value of the evidence." Kennett-Murray Corp. v. Bone , 622 F.2d 887, 892 (5th Cir. 1980). Summary judgment is improper where the court merely believes it unlikely that the nonmovant will prevail at trial. National Screen Serv. Corp. v. Poster Exchange, Inc. , 305 F.2d 647, 651 (5th Cir. 1962). By contrast, summary judgment for the moving party is only proper when a rational jury, looking at the record as a whole, could not find for the nonmoving party. Matshushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986).
"The [Mississippi] supreme court has pronounced that malicious prosecution actions must be managed with great caution.'" Funderburk v. Johnson , 935 So.2d 1084, 1097 (Miss. Ct.App. 2006)(citation omitted). This is because "the threat of a malicious prosecution suit may deter citizens from attempting to ...