CHARLES B. BENVENUTTI, AS CONSERVATOR OF THE ESTATE OF SOON SAN PAK, AND JULIE SMITH AND JACKIE SMITH, INDVIDUALLY AND AS CONSERVATORS OF THE PERSON OF SOON SAN PAK
JOHN MCADAMS, IN HIS OFFICIAL CAPACITY AS CHANCERY CLERK OF HARRISON COUNTY, MISSISSIPPI AND HARRISON COUNTY, MISSISSIPPI
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 10/16/2013. TRIAL JUDGE: HON. WILLIAM F. COLEMAN. TRIAL COURT ATTORNEYS: MARCIE FYKE BARIA, DAVID W. BARIA, TIMOTHY C. HOLLEMAN, PATRICK T. GUILD, DONALD C. DORNAN, JR., LAUREN HILLERY.
FOR APPELLANTS: DAVID WAYNE BARIA, MARCIE FYKE BARIA.
FOR APPELLEES: DONALD C. DORNAN, JR., LAUREN RUTH HILLERY, TIM C. HOLLEMAN, PATRICK T. GUILD.
BEFORE RANDOLPH, P.J., PIERCE AND KING, JJ. WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ. CONCUR.
NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE
¶1. The conservators of Soon San Pak's estate filed suit against their two attorneys, Harrison County, the Harrison County Chancery Clerk, John McAdams, and the guardian ad litem appointed for Mrs. Pak, after the previously appointed conservator, Woodrow W. Pringle III, embezzled money from the estate. The claims were dismissed upon a finding by the circuit court that the applicable statutes of limitation had lapsed. The conservators appealed. McAdams cross-appealed, asserting that the trial court improperly held that the conservators asserted a Section 1983 claim by implication against him and that Pringle was a state actor for whom McAdams and Harrison County could be vicariously liable. Because the statute-of-limitation issue is dispositive, this Court will not address McAdams's cross-appeal.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶2. In approximately 2001, Mrs. Soon San Pak underwent numerous surgeries after the discovery of a tumor on her pituitary gland. In 2002, Mrs. Pak's daughters, Julie and Jackie Smith, were informed that Mrs. Pak was no longer able to manage her estate. The daughters sought to establish a conservatorship but abandoned their pursuit after reaching an agreement with their stepfather, Yong Pak, regarding the care of their mother.
¶3. In 2005, Jackie and Julie Smith again sought to establish a conservatorship over their mother, after learning that Yong Pak's son Paul had obtained a cashier's check totaling more than $300,000, from one of Mrs. Pak's accounts. Initially, the Smiths were named co conservators of their mother's person and estate, but after unsuccessful attempts to secure a bond, Pringle was appointed conservator of Mrs. Pak's estate. The Smiths remained as coconservators of Mrs. Pak's person. Charliene Roemer was appointed guardian ad litem. Roemer also was appointed to serve as divorce counsel for Mrs. Pak in divorce proceedings against Yong Pak.
¶4. On July 31, 2007, the Smiths, through one of their attorneys, Jane Meynardie, filed a motion with the chancery court, expressing concerns about Pringle's administration of their mother's estate. On the same day, the Smiths filed an accounting.
¶5. On January 23 and 24, 2008, the chancery court heard arguments on the following motions filed by Julie and Jackie Smith, as co-conservators of Mrs. Pak: Motion to Approve Supplemental Inventory filed May 10, 2006; Motion to Approve Final Accounting, inter alia, filed July 31, 2007; and Motion to Show Cause, inter alia, filed January 2, 2008. During the hearing, Jane Meynardie informed the court that the only accounting that had been filed was the one filed by the Smiths. The chancellor approved and accepted the final accounting of the co-conservators but
did not order that Pringle provide an accounting.
¶6. On September 29, 2010, Pringle filed his first accounting with the court, showing that Mrs. Pak's Peoples Bank account had $277,082.58. However, at the time of the accounting, the account had only $86. On December 14, 2010, Pringle committed suicide. Although aware of Pringle's maladministration of their mother's estate, the Smiths determined the vastness of Pringle's misdeeds had cost approximately $400,000 from Mrs. Pak's estate.
¶7. On June 29, 2012, Charles Benvenutti, as conservator of the estate of Soon San Pak, and Julie Smith and Jackie Smith, individually and as conservators of the person of Soon San Pak (" Conservators" ), filed a complaint against Harrison County, Mississippi, Jane Meynardie, Clare Hornsby, Charliene Roemer, and John McAdams, after discovering that approximately $400,000 had been misappropriated or converted from the estate of Soon San Pak by Pringle. The Conservators alleged actions for deprivation of civil rights (42 U.S.C. § 1983) against Harrison County; breach of statutory duties and liability on bond as to John McAdams; legal malpractice, breach of contract, breach of fiduciary duty, and negligent infliction of emotional distress by Jane Meynardie, Clare Hornsby, and Charliene Roemer. Additionally, on the same day, the Conservators filed a separate complaint, alleging Mississippi Tort Claims Act violations against Harrison County.
¶8. The Conservators' June 2012 Complaint made the following allegations:
¶ 32. For several years, plaintiffs JULIE SMITH and JACKIE SMITH complained to both their counsel, defendants JANE MEYNARDIE and CLARE HORNSBY, and to the guardian ad litem/divorce counsel for their mother, defendant CHARLIENE ROEMER, about Mr. Pringle's perceived maladministration of the Estate of Soon San Pak. These complaints included, but were not limited to, that they believed that Mr. Pringle was embezzling funds from their mother's Estate ; that Mr. Pringle had not filed a single accounting ; that Mr. Pringle had not filed estate taxes ; that Ms. Pak's social security benefits were being garnished for failure to file taxes; that Mr. Pringle refused to repair their mother's residence, failed to provide for Ms. Pak's needs, and generally left Ms. Pak living in squalor despite the fact that
there were adequate funds to provide for her care; and that Mr. Pringle and his staff were openly hostile to plaintiffs JULIE SMITH and JACKIE SMITH when they sought to ...