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Newsome v. Shoemake

Supreme Court of Mississippi

September 7, 2017

MARILYN NEWSOME, INDIVIDUALLY AND AS CONSERVATOR/CONSERVATRIX OF VICTORIA NEWSOME
v.
DAVID SHOEMAKE AND JOE DALE WALKER

          DATE OF JUDGMENT: 01/29/2016

         SIMPSON COUNTY CHANCERY COURT HON. JAMES D. BELL TRIAL JUDGE

          TRIAL COURT ATTORNEYS: W. TERRELL STUBBS KRISSY CASEY NOBILE ROBERT BENTON EVANS G. ROBERT PARROTT, II DANNY ALTON DRAKE HAROLD EDWARD PIZZETTA, III WILLIAM C. BRABEC ALEXANDER FREDERICK GUIDRY LAUREN CAVALIER STUBBS MARC E. BRAND

          ATTORNEYS FOR APPELLANT: LAUREN CAVALIER STUBBS W. TERRELL STUBBS

          ATTORNEYS FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL BY: KRISSY CASEY NOBILE HAROLD EDWARD PIZZETTA, III

          BEFORE RANDOLPH, P.J., KITCHENS AND CHAMBERLIN, JJ.

          KITCHENS, JUSTICE.

         ¶1. This civil action arises from the mishandling of the Conservatorship of Victoria Newsome. Victoria Newsome's mother and conservator, Marilyn Newsome, filed the instant suit in the Chancery Court of Simpson County against former chancellor Joe Dale Walker, Chancellor David Shoemake, and other parties. The Chancery Court of Simpson County granted dismissal pursuant to Mississippi Rule of Civil Procedure 54(b) to Walker and Judge Shoemake on the basis of judicial immunity. Marilyn Newsome appeals. We affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Joe Dale Walker, who was at the time the senior chancellor for the Thirteenth Chancery Court District, [1] appointed Marilyn Newsome as conservator of the person and estate of her disabled adult daughter, Victoria Newsome, on July 13, 2010, and issued Letters of Conservatorship to her on July 21, 2010. Victoria's severely infirm condition was the result of medical malpractice.

         ¶3. Marilyn Newsome's counsel in her daughter's medical malpractice case, Charles Merkel III, filed a "Petition for Authority to Compromise and Settle Disputed Claim, For Approval and Establishment of Trust, and For Other Relief" on January 10, 2011. Marilyn Newsome asked that the settlement proceeds be distributed as follows:

$1, 239, 633.11

Merkel & Cocke, P.A

$8, 384.09

Medicaid for its lien;

$145, 000.00

For purchase of home located at 657 Hwy 149, Magee, MS

$25, 000.00

To Marilyn [Newsome] for payment of taxes, insurance, utility deposits

$17, 255.05

Marilyn [Newsome] for past services and expenses

$1, 057.00

Keely McNulty, Esq., for legal services rendered in custody matter

$1, 000, 000.00

To purchase structured settlement annuity

$563, 670.75

To SPECIAL NEEDS TRUST

$3, 000, 000.00

         ¶4. On January 13, 2011, Walker authorized the distribution of the settlement proceeds as follows:

$1, 238, 005.61

Merkel & Cocke, P.A.

$8, 384.09

Medicaid

$17, 255.05

To Marilyn [Newsome] for past services and expenses

$5, 000.00

Keely McNulty, Esq., for legal services in child custody matter

$1, 000, 000.00

To purchase annuity

$729, 727.75

To Merkel & Cocke, P.A., Trust Account

$2, 998, 372.50

         According to the complaint, Walker did not approve the purchase of the home as requested in the petition. The chancellor increased McNulty's requested attorney fee from $1, 057 to $5, 000, and his disbursement of conservatorship funds failed to account for $1, 627.50. Marilyn Newsome then opened a checking account at Peoples Bank for the conservatorship.

         ¶5. On March 21, 2011, Judge Walker allegedly entered an ex parte order in which he summarily denied a petition which had sought his approval for the purchase a home for Victoria Newsome and her family. In the same ex parte order, Judge Walker decreed that real property and a mobile home were to be purchased and that money was to be deposited into the conservatorship account to fund both purchases and to fund the construction and maintenance of a new home. In addition, Judge Walker ordered that Marilyn Newsome be paid $1, 450 for expenses and that McNulty be paid $5, 800 for legal services. According to the complaint, no petition requesting any of the relief Walker ordered appeared in the conservatorship record.[2]

         ¶6. Marilyn Newsome alleges in the complaint that McNulty prepared and Judge Walker signed other ex parte orders with no petitions having been filed and no findings or adjudications having been made on the record. The complaint states that these orders related to the purchase of real property, the purchase of a mobile home, and the construction of a "special needs home." McNulty prepared and Judge Walker signed orders awarding attorney fees to McNulty in the absence of itemized statements of hours or an hourly rate.

         ¶7. Judge Walker assigned to McNulty the task of obtaining at least four construction bids. C.T. Construction, a construction company owned by Walker's nephew, Chad Teater, submitted the lowest bid . Accordingly, on July 22, 2011, Walker transferred the case, by ex parte order, to Judge David Shoemake, the other chancellor for the Thirteenth Chancery Court District, "'for the limited purpose of approving and acceptance of the bid(s) for the construction of the home for the ward. Upon approval and acceptance, the cause is to be transferred back to Honorable Joe Dale Walker, Post 2.'" Marilyn alleges that "[n]o pleading was filed requesting said transfer and the record does not reflect any findings that supported a transfer of the case."

         ¶8. That same day, Judge Shoemake authorized Marilyn Newsome to accept the lowest bid of $273, 075.14 from C.T. Construction and transferred the case back to Walker. According to Marilyn Newsome's complaint, Judge Shoemake, on July 28, 2011, signed another ex parte order approving C.T. Construction's "Construction Management Agreement" and authorizing Marilyn Newsome, as conservator, to make payments. The agreement, which allegedly had been prepared and presented by McNulty, required, in addition to the payment of $273, 075.14, a flat fee of $30, 000. Judge Shoemake then, on August 2, 2011, signed an order authorizing Merkel & Cocke, P.A., to transfer $258, 395.14 from the conservatorship escrow account for the construction of the ward's new home. According to the complaint filed by the Mississippi Commission on Judicial Performance against Judge Shoemake, "[n]o petition requesting that relief was ever filed, and [Marilyn Newsome] never gave her permission nor had knowledge of that request for relief."

         ¶9. Judge Walker, on January 20, 2012, entered an order, nunc pro tunc to January 12, 2011, in which he appointed McNulty guardian ad litem for Victoria Newsome[3] in the absence of a petition or a hearing. Judge Walker, according to the complaint, merely found that appointing McNulty was in Victoria Newsome's best interest. Allegedly at the request of Walker, on January 24, 2012, McNulty, as Victoria Newsome's guardian ad litem, filed a Show Cause Petition requesting that Marilyn Newsome be ordered to show cause why she should not be held in contempt as conservator because certain facts and circumstances "adverse to the personal and financial health and well-being of Victoria" had come to McNulty's attention.

         ¶10. That same day, McNulty filed a petition requesting an additional $23, 000 from the ward's funds to pay for materials belonging to C.T. Construction which allegedly had been stolen from the construction site. According to the complaint, the petition alleged that "the total home construction amount of $326, 075.14 ($273, 075.14 $30, 000.00 $23, 000.00) still [would] be lower than any other bid submitted, " but "there were no bids filed in the court record." On January 25, 2012, "in spite of having transferred the case back to Judge Walker, [Judge Shoemake] signed an order directing payment of $23, 000 to C.T. Construction for the allegedly stolen materials."

         ¶11. McNulty moved to withdraw as a counsel for the conservatorship on March 20, 2012. On April 17, 2012, McNulty moved to withdraw from her position as guardian ad litem for Victoria, allegedly attaching to the petition "an itemized statement of her legal services without any itemization of time or hourly rates." McNulty again sought to withdraw, on April 24, 2012, from both her position as guardian ad litem and as counsel for the conservator. Judge Walker signed an ex parte order allowing McNulty's withdrawal on May 14, 2012.

         ¶12. Judges Walker and Shoemake entered a joint order of recusal dated October 13, 2013, "at the direction of the Judicial Performance Commission." Marilyn Newsome avers in her complaint that Judges Walker and Shoemake had "instructed the Chancery Court to disregard the Order of Recusal and omit it from the court file." Each thereafter executed separate orders of recusal.

         ¶13. The Commission on Judicial Performance filed a petition for interim suspension of Walker on January 2, 2014.This Court "suspended Judge Walker from the performance of his duties of his office, with pay, during the pendency of the Commission's inquiry." Miss. Comm'n on Judicial Performance v. Walker, 172 So.3d 1165, 1166 (Miss. 2015). Later, this Court determined that Judge Walker had resigned from his judicial office, "having pled guilty in the United States District Court for the Southern District of Mississippi to the felony of obstruction of justice."[4] Id. Ultimately, this Court formally removed Judge Walker from office, "'due to the seriousness of his admitted criminal acts and judicial misconduct.'" Id. at 1168 (quoting Miss. Comm'n on Judicial Performance v. DeLaughter, 29 So.3d 750, 755 (Miss. 2010)).

         ¶14. The Mississippi Commission on Judicial Performance recommended Judge Shoemake's removal from office. Miss. Comm'n on Judicial Performance v. Shoemake, 191 So.3d 1211, 1212 (Miss. 2016). But this Court determined that, while "Judge Shoemake's negligence and inattention while executing ex parte orders resulted in the dissipation of assets from Victoria Newsome's Conservatorship, " such did not warrant removal from office. Id. at 1224. Instead, in addition to imposing a $2, 500 fine and ordering that Judge Shoemake pay court costs, this Court ordered that Judge Shoemake receive a public reprimand and a thirty-day suspension from office without pay. Id.

         ¶15. In the instant case, Marilyn Newsome filed a Complaint, Request for Full Accounting and Inventory, for Return of Funds, for Attorney Fees, and for Other Relief in the Chancery Court of Simpson County on February 9, 2015. She filed an Amended Complaint, Request for Full Accounting and Inventory, for Return of Funds, for Attorney Fees, and for Other Relief in the Chancery Court of Simpson County on February 11, 2016. The defendants included Peoples Bank, its employee Chris Dunn, Keely McNulty, Judge David Shoemake, Joe Dale Walker, and Chad Teater. Marilyn Newsome alleged that defendants had misappropriated funds, committed malpractice, and committed civil rights violations under 42 U.S.C. § 1983. She further alleged conspiracy, fraud, breach of contract, breach of implied warranties and other warranties, breach of fiduciary duties, negligence, negligence per se, gross negligence, and intentional infliction of emotional distress. Marilyn Newsome demanded "a full accounting and inventory of Plaintiff Victoria Newsome's Conservatorship account." For each of the other claims, Marilyn Newsome sought a monetary sum "sufficient to fully compensate Plaintiffs for actual and punitive damages . . ., together with prejudgment interest and post-judgment interest and all costs related to this civil action." ¶16. In the wake of the recusals of Judges Walker and Shoemake, Judge Hollis McGehee was assigned to oversee the conservatorship proceedings. Because the civil action had been filed in the conservatorship proceedings, Judge McGehee sua sponte severed the civil action from the conservatorship. Because Judge McGehee subsequently recused, Judge Gerald Martin was assigned to hear the case, but he recused shortly thereafter. This Court then appointed Judge James D. Bell as special chancellor to hear the civil action.

         ¶17. Judge Shoemake filed a motion to dismiss, arguing that he is entitled to absolute judicial immunity, that "the Mississippi Tort Claims Act provides additional layers of immunity to" him, and that, "to the extent [he] is sued in his official capacity under § 1983, such an attempted claim immediately fails because neither the state nor its officials acting in their official capacities are 'persons' under § 1983." Alongside his motion to dismiss, Judge Shoemake asked for a stay of discovery, arguing that "immunity must be considered and resolved before the significant expense of needless discovery is undertaken . . . ." Joe Dale Walker filed a "Joinder in Judge Shoemake's Motion to Stay and Motion to Dismiss."

         ¶18. Marilyn Newsome then filed a Motion to Disqualify Jim Hood, Attorney General [of the] State of Mississippi[, ] as Counsel for Defendant, David Shoemake." She argued that "[i]nstead of referring the Complaint to the Vulnerable Adult Division and opening a criminal investigation and representing the victim in this matter, the Attorney General's Office has chosen to enter its appearance on behalf of Defendant[] Shoemake and ignore the apparent conflicts of interest." According to Marilyn Newsome, "[o]ne would assume that the Attorney General's Office would be inclined to help those persons that cannot help themselves." But "the Attorney General has chosen to ridicule the Plaintiff for seeking relief for damages her daughter, Victoria, has sustained at the hands of the above-named defendants, including David Shoemake, a sitting Chancery Judge."

         ¶19. The trial court stayed discovery as to Walker and Judge Shoemake. It also denied Marilyn Newsome's motion to disqualify the Attorney General, finding that "it does not appear from the record that the Attorney General ever initiated an attorney-client relationship with the Plaintiff and it does not appear from the record that the Plaintiff reasonably believed that the Attorney General was her attorney." After a hearing, the trial court granted dismissal, pursuant to Mississippi Rule of Civil Procedure 54(b), [5] both to Walker and Judge Shoemake on the basis of the doctrine of judicial immunity. The trial court denied Marilyn Newsome's "Motion to Set Aside and Vacate Order Granting Defendant Shoemake's Motion to Stay Discovery and Order Denying Plaintiff's Motion to Disqualify Attorney General and for Record to be Made, " but ordered "that a record shall be made of all Motions and other matters in this case."

         ¶20. Aggrieved, Marilyn Newsome has appealed. She argues that the trial court erred in granting dismissal pursuant to Mississippi Rule of Civil Procedure 54(b) to Walker and Judge Shoemake on the basis of judicial immunity, that the trial court erred in granting a stay of discovery to Walker and Judge Shoemake, that the trial court erred in denying her motion to disqualify the Attorney General, and that the chancellor erred in denying her motion to vacate. We consider each argument in turn.

         DISCUSSION

         1. Whether the trial court properly applied the doctrine of judicial immunity in granting dismissal pursuant to Mississippi Rule of Civil Procedure 54(b) to Walker and Judge Shoemake.

         Standard of Review

         ¶21. Judge Shoemake filed his motion to dismiss pursuant to Mississippi Rule of Civil Procedure 12(b)(6), and Walker joined that motion. This Court reviews a trial court's grant of a motion to dismiss pursuant to Mississippi Rule of Civil Procedure 12(b)(6) de novo. Crum v. City of Corinth, 183 So.3d 847, 850 (Miss. 2016). "A Rule 12(b)(6) motion 'tests the legal sufficiency of the complaint.'" Id. (quoting Little v. Miss. Dep't of Transp., 129 So.3d 132, 135 (Miss. 2013)). "The allegations in the complaint must be taken as true, and there must be no set of facts that would allow the plaintiff to prevail." Rose v. Tullos, 994 So.2d 734, 737 (Miss. 2008) (citing Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, 893 (Miss. 2006)).

         Whether the trial court properly entered its order pursuant to ...


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