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Bacallao v. Madison County

Court of Appeals of Mississippi

January 9, 2018


          DATE OF JUDGMENT: 12/15/2016




         EN BANC.


         ¶1. On March 22, 2012, Reinaldo Bacallao filed a complaint against Madison County, Mississippi, and Attorney Lisa M. Ross, individually, alleging Ross committed legal malpractice while acting as Bacallao's public defender. After a trial, the county court, sitting without a jury, found that Bacallao failed to provide sufficient proof to show that Ross had committed malpractice. Bacallao appealed the county court's decision to the Madison County Circuit Court, which affirmed.

         ¶2. Bacallao appeals and asserts the following assignments of error: (1) the county court applied an erroneous legal standard; (2) the county court's finding were against the overwhelming weight of the evidence; (3) the county court erred in excluding exhibit 31 from evidence; and (4) the county court erred in failing to consider and award sanctions against Madison County.

         ¶3. Upon reviewing the record, we find no error. Accordingly, we affirm the circuit court's judgment.


         ¶4. On March 3, 2010, a Madison County grand jury indicted Bacallao and his companion, Oneida Gamez, on charges of arson, conspiracy to commit arson, and insurance fraud.[1] Bacallao and Gamez attempted to retain Michael J. Malouf Jr. to defend them. Malouff entered an appearance on their behalf.

         ¶5. The record reflects that three months later, Malouf filed a motion to withdraw as counsel for Bacallao and Gamez, explaining that they were indigent and made no payments toward their representation. Malouf asked that the court permit him to withdraw as counsel and that a public defender be appointed to represent Bacallao and Gamez. Thereafter, both Bacallao and Gamez filed affidavits of indigency with the court. A status conference was held on September 27, 2010, where Malouf presented his motion to withdraw, and the court entered an order permitting Malouf's withdrawal. The court subsequently entered an order appointing a public defender to represent Bacallao and Gamez.

         ¶6. The record reflects that Ross was appointed as Bacallao's public defender around November 4, 2010. Ross testified that on the same date she received the order assigning Bacallao's case to her, she drafted and filed a motion for discovery. Ross testified that on November 23, 2010, she copied all of the information that she had received from the district attorney's office, including the order setting forth his court dates, as well as other discovery, and sent copies to Bacallao. The record reflects a dispute at trial as to whether the order resetting the hearing and the new trial dates were included in the copy of discovery mailed to Bacallao.

         ¶7. The record shows that in November 2010, Gamez attempted to contact Ross on Bacallao's behalf. Bacallao testified at trial that Gamez contacted Ross on his behalf because he is unable to communicate well in English.

         ¶8. Bacallao's case was scheduled for a status conference on January 31, 2011. Ross testified that on January 28, 2011, three days prior to the status conference, she called Bacallao twice to inform him that his presence was required at the status conference. Ross stated that she did not speak to Bacallao, but she left a voicemail instructing him that his status conference was set for January 31, 2011, and if he failed to attend, a bench warrant would be issued for his arrest. Evidence presented at trial reflects that Bacallao accessed his voicemail within a minute of Ross calling and leaving him a message.

         ¶9. The record reflects that Bacallao failed to attend the status conference on January 31, 2011. As a result, a bench warrant was issued for his arrest. Ross sent Bacallao a letter to inform him that a bench warrant had been issued due to his failure to appear in court. Bacallao was arrested on February 16, 2011, at the Madison County Detention Center. The record reflects that Bacallao spent approximately seventy-eight days in jail, until his release on May 5, 2011.

         ¶10. While Bacallao was detained, his sister-in-law, Elizabeth Silva, [2] contacted Ross. Silva testified that Ross was not helpful and would not speak to her regarding Bacallao's incarceration. According to Silva, Ross stated that Bacallao would have to remain in jail until his trial. Bacallao's family subsequently retained Malouf for private representation.

         ¶11. Malouf filed a motion to reinstate bond, and after a hearing on the motion, the county court ordered that Bacallao be released from custody. The Malouf firm investigated the criminal charges and hired an independent fire expert. A nolle prosequi was entered on Bacallao's case on June 22, 2011, and the criminal indictment against Bacallao was dismissed.

         ¶12. Thereafter, Bacallao filed a civil complaint in county court against Ross and Madison County, alleging that Ross committed legal malpractice. In his complaint, Bacallao specifically alleged that Ross's "wrongful, careless, negligent and reckless actions and inactions constitute legal malpractice; breach of the duty of care; and breach of the duty of loyalty." As a result, Bacallao claimed that he was entitled to an award of damages. Bacallao further alleged that Ross's "actions and inactions evince malice, gross negligence, and/or willful, wanton, or reckless disregard for [Bacallao's] rights entitling [Bacallao] to an award of punitive damages in addition to compensatory damages."

         ¶13. A trial was held on May 27 through May 29, 2014. At trial, the county-court judge heard testimony from Bacallao, Gamez, Silva, and Ross. The county-court judge also heard testimony from Madison County's expert witness, Barry Ford, whom the defense tendered, and the county court accepted, as an expert in the legal field, specifically with regard to client communications and representation.

         ¶14. During trial, Bacallao's counsel moved to have a set of Ross's letters admitted into evidence as exhibit 31 in order to show Ross's usual and customary practice regarding initial correspondence with criminal-defense clients. Defense counsel objected to the admission of these letters, arguing that the letters relate to clients previously represented by Ross and that the clients are unrelated to the case against Bacallao. Defense counsel also objected on the grounds that Bacallao's counsel produced the letters approximately a week before trial, and well past the discovery period. The county-court judge ruled that the letters would not be allowed into evidence, explaining to Bacallao's counsel that it "has been well established" that Ross normally provides her clients with a letter containing their court dates, but failed to provide Bacallao a letter containing his court dates.

         ¶15. After the trial, the county-court judge found that Bacallao failed to prove by a preponderance of the evidence that Ross committed legal malpractice. The county court judge entered an order stating as follows:

The proof shows and the [c]ourt finds that Ross did communicate or attempt to communicate with [Bacallao] at least four times subsequent to her assignment to the case: 1) on or about November 23, 2010, Ross sent to [Bacallao] a packet of information which included, among other things, a cover letter asking [Bacallao] to contact her; 2) Ross placed a phone call to the phone number [Bacallao] provided to the [c]ourt on January 28, 2011, which went unanswered; 3) Ross made a second phone call to [Bacallao] cell phone on January 28, 2011, which also went unanswered and left a voice message requesting Plaintiff contact her and reminding him of [c]ourt on January 31, 2011; and 4) Ross sent a letter to [Bacallao] on January 31, 2011, advis[ing] a bench warrant had been issued for his arrest and asking again for [Bacallao] to contact her.
Of importance here, which the [c]ourt finds as fact, is that someone, within seconds of the second phone call herein above mentioned, retrieved the message. Thus, someone, in possession of [Bacallao's] phone, received the message from Ross.
In addition to the communications mentioned heretofore, the [c]ourt finds that Ross, after [Bacallao] was incarcerated on the bench warrant on or about February 16, 2011, sent, on March 2, 2011, a letter to [Bacallao] asking that he contact her and [inform] him of the new court dates.
The [c]ourt finds the only communication Ross received concerning the case was from [Bacallao's] then girlfriend, now wife, Oneida Gamez. Ross declined to discuss the case with Gamez due to the fact that Gamez was also indicted on the same charges and had a different public defender assigned her case. The [c]ourt finds that Ross asked Gamez to have [Bacallao] contact her directly but received no communication from him. The court notes that in his Affidavit of Indigency executed by [Bacallao] to secure court[-]appointed counsel is an acknowledgment that [Bacallao] understood he had a ". . . responsibility to maintain contact and communications with the attorney appointed to represent me . . . ."
The [c]ourt, therefore, finds that Ross attempted to keep [Bacallao] informed of his court dates. It follows then that in doing so she adequately represented [Bacallao] in his criminal case and has not committed malpractice. Therefore, [Ross] is not vicariously liable for any damages [Bacallao] may have suffered due to being incarcerated.

         ¶16. The county court entered its final judgment on the matter on April 17, 2015. Bacallao then filed a motion to reconsider, or, alternatively, for a new trial, which the county court denied.

         ¶17. Bacallao appealed the county court's decision to the circuit court, which affirmed the county court's findings. In its order affirming the county ...

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