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Ferrell v. Turner

United States District Court, S.D. Mississippi, Northern Division

March 30, 2017

WAYNE E. FERRELL, JR.; JAMES W. NOBLES, JR.; and ANGELO DORZIAS PLAINTIFFS/ COUNTER-DEFENDANTS
v.
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

          ORDER

          HENRY T. WINGATE, UNITED STATES DISTRICT COURT JUDGE

         BEFORE 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].

         On March 20, 2017, this court entered an Order dismissing the complaint in the case consolidated with this matter[1] 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 above.

         In its 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 limitations.
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 time.

[Docket no. 101].

         The 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.

         As 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].

         I. JURISDICTION

         This action is before the court on a notice of removal, said removal having been premised on 28 U.S.C. § 1441[2] and 28 U.S.C. § 1332[3]. [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[4], finding this court had diversity subject matter jurisdiction. [Minute Entry 04/20/2016].

         A 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).

         Mississippi 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.

         Mississippi's 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[5] that this court should apply the substantive law of Mississippi to this dispute, and as dictated by Erie, the procedural law of Mississippi.

         II. PARTIES

         Wayne 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.

         James 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.

         Angelo 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, Mississippi. Id.

         Tab 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 no. 1-1].

         Turner & 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.

         III. FACTUAL BACKGROUND

         This 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.

         On 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 ...


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