United States District Court, S.D. Mississippi, Northern Division
WAYNE E. FERRELL, JR.; JAMES W. NOBLES, JR.; and ANGELO DORZIAS PLAINTIFFS/ COUNTER-DEFENDANTS
TAB TURNER a/k/a C. TAB TURNER, CLYDE TALBOT TURNER, CLYDE T. TURNER, CLYDE TAB TURNER and TAB CLYDE TURNER, and TURNER & ASSOCIATES, P.A. DEFENDANTS/ COUNTER-PLAINTIFFS
T. WINGATE, UNITED STATES DISTRICT COURT JUDGE
THIS COURT are various motions: Wayne E. Ferrell's
Jr.'s Motion for Partial Summary Judgment [Docket no.
24]; Wayne E. Ferrell, Jr.; James W. Nobles, Jr.; and Angelo
Dorzias' Motion for Partial Summary Judgment [Docket no.
25]; Wayne E. Ferrell Jr.'s Motion to Dismiss [Docket no.
51]; and Tab Turner's Motion to Compel Repayment of Funds
Taken From Trust Account Without an Agreement or Court
Approval and/or For Contempt and to Dismiss Ferrell's
Claims [Docket no. 82].
March 20, 2017, this court entered an Order dismissing the
complaint in the case consolidated with this
matter for failure to comport with the statute of
limitations. [Docket no. 101]. Now, the plaintiffs ask this
court to dismiss the counter-claims in this matter alleging,
again, a failure to comport with the statute of limitations.
This court, for the reasons stated infra, is not
inclined to do so and will therefore, DENY the motions listed
March 20, 2017 order, this court found:
This court is convinced by Ferrell's arguments that the
statute of limitations of § 15-1-49 applies and finds
the Turner Parties did not assert their claims until long
after the mandatory limitations period had expired. The
Turner Parties, at best, filed their lawsuit in the Arkansas
case almost five (5) years after the alleged breach by
Ferrell. Therefore, the Turner Parties' complaint was
filed almost two (2) years outside the statute of
Further, this court is equally convinced that the savings
clause of § 15-1-69 cannot insulate the Turner
Parties' complaints. Even upon a theory that the statute
of limitations had been tolled by the Jasper County Chancery
Court case, the Turner Parties did not file their lawsuit
until five hundred and fourteen days (514) after the
dismissal (without prejudice) of the Jasper County,
Mississippi, Chancery Court Case. Mississippi's savings
clause, as codified in § 15-1-69, only contemplates a
one (1) year savings period. Consequently, even if the Turner
Parties had been “saved” under § 15-1-49,
the dismissal of the Jasper County, Mississippi, Chancery
Court lawsuit started the one year limitations period of
§ 15-1-49 running and the Turner Parties still failed to
file their claims against Ferrell, Nobles, and Dorizas in
[Docket no. 101].
Ferrell parties, in essence, ask this court to view the
procedural posture of the case consolidated with this one
(which has already been dismissed) as if they were the same
in kind. They are not. The Turner parties correctly assert in
their Response in Opposition to Ferrell's Motion to
Dismiss [Docket no. 59], the Rules of Civil Procedure require
compulsory counterclaims be filed and that they
“relate-back” to the filing of the complaint.
stated in its previous order of this court dismissing the
consolidated case, this case features a hotly-contested
dispute over the apportionment of attorney's fees and
share of expenses from a jury verdict which resulted in a
judgment exceeding $130, 000, 000 in compensatory damages and
an undisclosed amount of money provided in a confidential,
punitive damages settlement. [Docket no. 101].
action is before the court on a notice of removal, said
removal having been premised on 28 U.S.C. §
and 28 U.S.C. § 1332. [Docket no. 1]. Turner &
Associates challenged removal [Docket no. 10]. This court
held a hearing on April 20, 2016, and denied the motion to
remand filed by the Turner Parties, finding this court had
diversity subject matter jurisdiction. [Minute Entry
federal court with diversity jurisdiction applies the
substantive law of the forum state. Learmonth v. Sears,
Roebuck & Co. 710 F.3d 249, 258 (5th Cir.
2013). A district court, then, must apply the choice of law
rules of the state in which the action is brought.
Williamson Pounders Architects PC v. Tunica Cty.,
Miss. 597 F.3d 292, 295 (5th Cir. 2010).
is the forum state for the lawsuit sub judice. Its
choice of law provisions must be enforced here and given
effect unless Mississippi's provisions are arbitrary or
fundamentally unfair. Id. Thus, obedient to Erie
Railroad Co., v. Tompkins, 304 U.S. 64 (1938), this
court, sitting in Mississippi, looked to Mississippi law to
determine whether, under these circumstances here, this
court, after recognizing the potential involvement of the law
of Arkansas, should apply that state's substantive law to
the facts of this controversy, an approach described as a
“conflict of laws” query.
key authority is Boardman v. United Services Auto.
Ass'n, 470 So.2d 1024 (Miss. 1985), which holds
“the law of a single state does not necessarily control
every issue in a given case. We apply the center of gravity
test to each question presented, recognizing that the answer
produced in some instances may be that the law of this state
applies and on other questions in the same case the
substantive law of another state may be enforceable.”
Id. at 1031. After abiding by this Mississippi
approach, this court, on the balance of the major facts,
found that this court should apply the
substantive law of Mississippi to this dispute, and as
dictated by Erie, the procedural law of Mississippi.
E. Ferrell Jr. (hereinafter referred to as
“Ferrell”) is an adult resident of Madison
County, Mississippi. [Docket no. 1]. Ferrell is an attorney
licensed to practice law in the State of Mississippi with his
law office located in Jackson, Mississippi. Id.
W. Nobles, Jr. (hereinafter referred to as
“Nobles”) is an adult resident of Hinds County,
Mississippi. [Docket no. 1-1]. Nobles is an attorney licensed
to practice law in the State of Mississippi with his law
office located in Clinton, Mississippi. Id.
Dorizas (hereinafter referred to as “Dorizas”) is
an adult resident of Hinds County, Mississippi. Id.
Dorizas is an attorney licensed to practice law in the State
of Mississippi with his law office located in Jackson,
Turner a/k/a C. Tab Turner, Clyde Talbot Turner, Clyde T.
Turner, Clyde Tab Turner and Tab Clyde Turner (hereinafter
referred to as “Turner”) is an adult resident of
the State of Florida. [Docket no. 1]. Turner is an attorney
licensed to practice law in the State of Arkansas with his
law office located in North Little Rock, Arkansas. [Docket
& Associates (hereinafter referred to as
“T&A”) allegedly is a professional
organization that is a citizen of the State of Arkansas.
[Docket no. 1]. Significant dispute has arisen whether this
party actually exists. On November 13, 2015, in his Opinion
and Order, United States District Court Judge J. Leon Holmes
of the Eastern District of Arkansas, found, “There is
no entity ‘Turner & Associates, P.A.' The
entity is Clyde Tab Turner, P.A., which does business as
Turner & Associates, P.A.” [E.D. Arkansas Civil
Action no. 4:15-cv-602-JLH, Order Dated November 13, 2015,
fn.1]. Turner campaigns that T&A is the same as Turner.
lawsuit arises from a dispute between former co-counsel on a
wrongful death suit against Ford Motor Company, and Watson
Quality Ford. The underlying cause of action resulted in a
jury verdict exceeding $130, 000, 000.00. The plaintiff,
Gregory Cole as the Administrator of the Estate of Brian K.
Cole, in the underlying wrongful death action, Jasper County
Court, Mississippi, case number 12-0076, signed a fifty
percent (50%) fee agreement with the attorney-parties in
these lawsuits. After the jury verdict, on September 2, 2010,
the parties in the underlying wrongful death action, that is
defendants Ford Motor Company, and Watson Quality Ford, and
plaintiff Gregory Cole as the Administrator of the Estate of
Brian K. Cole, reached a confidential settlement agreement.
September 10, 2010, Ferrell filed a disbursement action in
Jasper County Chancery Court because Ferrell and Turner had
disagreed on the amount each attorney-party was owed under
the fee agreement between them. Turner answered the Jasper
County Chancery Court complaint by affidavit but did not
assert any counterclaim against Ferrell in that lawsuit.
After five (5) years, the Jasper County Chancery Court ruled
it did not have jurisdiction over the ...