Lisa Edmonds v. Edward A. Williamson ( 2007 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2007-CA-00751-SCT
LISA EDMONDS AND LARRY EDMONDS
v.
EDWARD A. WILLIAMSON, INDIVIDUALLY
AND EDWARD A. WILLIAMSON, P.A., MICHAEL
MILLER, GEORGE W. HEALY, IV AND GEORGE
W. HEALY, IV AND ASSOCIATES 1
DATE OF JUDGMENT: 03/28/2007
TRIAL JUDGE: HON. LESTER F. WILLIAMSON, JR.
COURT FROM WHICH APPEALED: KEMPER COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: JOHN J. MUELLER
JOSEPH WOOD HUTCHINSON, III
ATTORNEYS FOR APPELLEES: JOHN BENTON CLARK
BRANDI N. SMITH
WILLIAM T. MAY
WILLIAM B. CARTER
NATURE OF THE CASE: CIVIL - LEGAL MALPRACTICE
DISPOSITION: AFFIRMED - 06/25/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRAVES, P.J., LAMAR AND KITCHENS, JJ.
GRAVES, PRESIDING JUSTICE, FOR THE COURT:
¶1. This case involves a dispute between the plaintiffs, Lisa Edmonds (“Edmonds”) and
Larry Edmonds (together, the “Edmondses”), and the defendants, all of whom are attorneys,
1
George W. Healy, IV and George W. Healy, IV and Associates are not in fact
parties to this action as they were never joined and no separate cause of action was ever
pursued against them. However, the parties have designated them as parties on appeal
and George W. Healy, IV has filed an appellate brief with this Court.
Edward Williamson (“Williamson”), Michael Miller (“Miller”), and George W. Healy, IV
(“Healy”). The plaintiffs filed suit in Kemper County Circuit Court, asserting claims of legal
malpractice against Williamson and Miller. The trial court granted summary judgment in
favor of Williamson and Miller. Thereafter, the plaintiffs appealed to this Court. The
plaintiffs also appeal from an order entered by the trial court regarding the plaintiffs’ dispute
with Healy about their case file.
FACTS
¶2. The underlying dispute in this case arises out of the Phen-Fen products liability
litigation in Williams v. American Home Products Corporation, Civil Action No. 2000-207,
in Holmes County Circuit Court. Lisa Edmonds was one of the claimants from Mississippi
who was involved in this litigation. She retained Williamson to represent her in connection
with the Phen-Fen litigation, entering into a representation agreement (the “Representation
Agreement”) with Williamson and his firm, Edward A. Williamson, P.A., on November 17,
2000. The Representation Agreement set out the attorneys’ fees for the litigation, which
increased as the litigation progressed through various stages. The Representation Agreement
states, in relevant part:
COMPENSATION: In the event of any recovery had by, settlement obtained
for, or payment made to the client(s) in connection with the above referred to
claim or right of action, EDWARD A. WILLIAMSON, shall be entitled to and
shall be paid a percentage of the gross proceeds in accord with the following
schedule:
a. In the event of settlement prior to filing suit, the completion of
mediation, or the initiation of arbitration . . . 33 1/3%
b. In the event settlement is obtained after suit is filed, mediation is
successfully completed, or arbitration is initiated, but before the time
allowed for discovery, final pre-trial hearing or commencement of trial
preparation, whichever is earlier . . . 40%
2
c. In the event settlement is obtained after suit is filed, and after time
permitted for discovery, final pre-trial hearing or the commencement
of trial preparation, whichever is earlier . . . 45%
d. In the event that an appeal is taken by or on behalf of Client or any
Defendant . . . 50%
¶3. After a series of mediations and negotiations, Williamson, Miller, and Edward
Blackmon (“Blackmon”), a Mississippi attorney, were able to reach a settlement agreement
with American Home Products (“AHP”) after trial proceedings had begun for the Phen-Fen
matter. The agreement is memorialized in a letter, dated April 24, 2001, from Helene
Madonick, counsel for AHP, to Williamson, Miller, and Blackmon. The letter agreement
stated in part that AHP would pay $55,000,000 to the Mississippi claimants to settle all their
claims and that, in exchange, Williamson, Miller, and Blackmon would provide AHP with
signed releases from each claimant. Thereafter, by order of the Holmes County Circuit
Court, a Qualified Settlement Fund (“QSF”) was established on May 15, 2001. SunTrust
Bank was designated to manage the QSF.
¶4. During the course of the negotiations between AHP and Williamson, Miller, and
Blackmon, there developed a dispute between Edmonds and Williamson over whether
Edmonds had authorized Williamson to settle her claims for $1,500,000 gross or $1,500,000
net. The dispute was resolved and, ultimately, the Edmondses received $1,504,319.77 net.2
In order to receive the settlement proceeds, the Edmondses signed a Confidential Release,
Indemnity and Assignment with AHP on May 5, 2001.
2
The Edmondses also received a check from SunTrust Bank for $14,242.96 in
interest.
3
¶5. On May 9, 2001, Edmonds and Williamson entered into an agreement (the
“Agreement”) stating that Edmonds would pay Williamson attorneys’ fees in the amount of
45% of the gross settlement proceeds. This Agreement was signed by both Williamson and
Edmonds and witnessed by Glinda “Kookie” Bowles, Donna Herrington, and Linda Holley.
Also on May 9, 2001, Edmonds signed an acknowledgment (the “Acknowledgment”) stating
that there would be “very substantial” expenses resulting from the Phen-Fen litigation. The
Acknowledgment further stated that “[t]hree percent of the gross recovery for expenses
ordered to be deducted from each settlement by the multi-district litigation authority” (the
“MDL fee”) would be deducted from her settlement proceeds.
¶6. Sometime after signing the Agreement and the Acknowledgment, Edmonds became
unhappy with the fact that Williamson was charging her attorneys’ fees in the amount of 45%
and that the MDL fee had been deducted from her settlement proceeds. The record includes
correspondence between Edmonds and Williamson illustrating Edmonds’ position regarding
fees and expenses. On July 15, 2002, the Edmondses filed a complaint in Kemper County
Circuit Court against Williamson and Edward A. Williamson, P.A. (together, the
“Williamson Defendants”). In their complaint, the Edmondses alleged, in relevant part, that
Williamson wrongly charged Edmonds attorneys’ fees in the amount of 45% and that
Williamson wrongly allowed the MDL fee to be deducted. The Edmondses claimed that
Williamson wrongly charged her the attorneys’ fees because she was not a named plaintiff
in the Williams matter. They also asserted that Williamson wrongly allowed the MDL fee
to be deducted because “[t]here is nothing in Ms. Edmonds’ contract with Mr. Williamson
which authorizes deducting this 3% . . . Ms. Edmonds has not seen any court order which
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authorizes deducting this 3% . . . and it is not clear how the 3% was calculated or why Mr.
Williamson feels that the 3% should be deducted from Ms. Edmonds’ share of the gross
recovery.” The Edmondses argued that by, inter alia, charging Edmonds excessive fees,
Williamson “breached his duty of care, breached his contractual obligations, or breached his
duty of loyalty (fiduciary duty).”
¶7. Williamson subsequently filed an answer, and the parties proceeded to engage in
extensive discovery. The Edmondses subsequently amended their complaint twice to specify
a damages amount and to assert Larry Edmonds’ claims against the Williamson Defendants
and to add Miller as a defendant. The Edmondses also filed a separate complaint against
Miller on March 11, 2004. On February 26, 2003, Williamson filed a motion to dismiss or
transfer, which the trial court denied on April 11, 2003. An interlocutory appeal was taken,
and this Court affirmed the trial court’s decision on August 12, 2004. Williamson v.
Edmonds, 880 So. 2d 310 (Miss. 2004). Following this Court’s decision, the parties
continued to engage in discovery. On October 7, 2004, the Edmondses filed a motion to
consolidate the cases against Williamson and Miller, which the trial court granted on October
13, 2004.
¶8. On August 16, 2005, the Williamson Defendants filed a motion for summary
judgment arguing that Edmonds was contractually bound to pay the attorneys’ fees and to
allow the MDL fee to be deducted and that her claims were barred by waiver and estoppel
and accord and satisfaction. The Williamson Defendants also asserted that Larry Edmonds’
claims were meritless because Larry was not Williamson’s client. Miller joined the motion
for summary judgment on August 17, 2005. The Edmondses filed a response in opposition
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to summary judgment on August 26, 2005, claiming that the documents Edmonds signed do
not constitute an enforceable contract and that, even if they do, they do not bar the
Edmondses’ claims.
¶9. Meanwhile, on September 26, 2005, the Edmondses’ attorney, Healy, filed a motion
to withdraw, which the trial court granted on October 6, 2005, following a hearing on the
matter. The trial court granted the Edmondses 120 days to retain substitute counsel. The
Edmondses were unable to retain substitute counsel within 120 days and sought and were
granted additional time to do so. On March 30, 2006, the Edmondses’ new counsel filed a
notice of substitution. In the meantime, on January 30, 2006, the Edmondses filed a motion
to stay proceedings in this matter because of a dispute with Healy over their case file. The
Edmondses claimed that Healy was required to give them their case file in its entirety,
without charging the Edmondses for copying costs. Healy responded by filing a motion to
determine file production and a response to the Edmondses’ motion to stay. Healy argued
that the Edmondses had been given full access to their case file and to the copy machine at
Healy’s law office. He further contended that the Edmondses had “most if not the entire
file.” He added that the Edmondses had come to his law office on numerous times,
sometimes spending eight to ten hours per day at his office reviewing and copying
documents, and that on many occasions, they stayed overnight at a hotel or on Healy’s
personal boat. On March 30, 2006, the Edmondses filed a motion to compel delivery of the
case file. On July 31, 2006, the trial court entered an order addressing the dispute over the
Edmondses’ case file, stating:
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The Court does not believe that [Mississippi Rule of Professional Conduct
1.16(d)] requires the former attorney to copy a client file for the client, nor
does it require the attorney to totally turn over the file in which other clients
have an interest. Therefore, this Court finds that the entire client file shall be
made available to the Edmonds’ [sic] for inspection. Thereafter, the Edmunds’
[sic] or their representative may copy as much or as little of the file as they
wish at their expense. Further, the Edmonds [sic] are entitled to the return of
any original papers and property they delivered to Mr. Healy and he may copy
these items at his expense if he wishes to retain a copy.
¶10. On November 16, 2006, Miller’s counsel sent a letter to one of the Edmondses’ new
attorneys, John J. Mueller (“Mueller”), suggesting six potential dates for the hearing on the
motion for summary judgment. Mueller responded by letter on November 27, 2006,
objecting to the setting of a hearing on the motion for summary judgment, but stating that
January 26, 2007 would be the best date for the hearing, which the Edmondses’ new local
counsel, Joseph W. Hutchinson, III (“Hutchinson”), would attend. The hearing for the
motion for summary judgment was then set for January 26, 2007. On the morning of the
hearing, Mueller faxed to the trial court a motion to continue the hearing because Mueller
and the Edmondses were unable to reach Hutchinson to confirm his attendance at the hearing
and because, as he stated in his letter of November 27, 2006, to Miller’s counsel, Mueller had
a conflict. At the hearing, Williamson and Miller were present with counsel and the
Edmondses and their counsel were absent. The trial court denied the Edmondses’ motion to
continue the hearing as untimely filed. The Williamson Defendants then presented
arguments regarding their motion for summary judgment. At the conclusion of the
arguments, the trial court took the matter under advisement and, on March 19, 2007, the trial
court granted summary judgment and entered a final judgment of dismissal on March 29,
2007. Thereafter, the Edmondses timely filed a notice of appeal.
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ANALYSIS
¶11. The Edmondses appeal from both the trial court’s grant of summary judgment and its
order regarding the motion to compel.
I. Whether the Trial Court Erred in Granting Summary Judgment.
¶12. This Court reviews a trial court’s grant of summary judgment de novo. See, e.g.,
United States Fid. & Guar. Co. v. Martin, 998 So. 2d 956, 962 (Miss. 2008) (citing
Germany v. Denbury Onshore, LLC, 984 So. 2d 270, 275 (Miss. 2008)). When deciding
to grant or deny summary judgment, a court must review the record before it and take all the
evidence in the light most favorable to the non-moving party. Martin, 984 So. 2d at 962
(citing Denbury Onshore, LLC, 984 So. 2d at 275). The trial court’s decision to grant
summary judgment will be affirmed if the record before the court shows that there is no
genuine issue of material fact and that the movant is entitled to a judgment as a matter of law.
Martin, 984 So. 2d at 962 (citing Denbury Onshore, LLC, 984 So. 2d at 275).
A. The Edmondses’ Claims Regarding Waiver, Estoppel, Release, and
Accord and Satisfaction
¶13. The Edmondses argue that the trial court erred in granting summary judgment because
their claims were not barred by waiver, estoppel, release, or accord and satisfaction. The first
four issues raised on appeal are set out as follows:
Issue No. 1: Did the Edmondses waive the claims of lawyer malpractice,
breach of contract, and breach of fiduciary duty they have
asserted against Williamson?
Issue No. 2: Are the Edmondses estopped from prosecuting the claims of
lawyer malpractice, breach of contract, and breach of
fiduciary duty they have asserted against Williamson?
Issue No. 3: By signing the acknowledgment and separate agreement, did
the Edmondses release the claims of lawyer malpractice,
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breach of contract, and breach of fiduciary duty they have
asserted against Williamson?
Issue No. 4: By signing the acknowledgment and separate agreement, did
the Edmondses enter into an accord and satisfaction with
Williamson?
¶14. The Edmondses argue that the trial court erred in finding that they waived their claims
against Williamson by accepting the settlement proceeds from AHP.3 They also contend that
the trial court erred in finding that they were estopped from asserting their claims against
Williamson “[i]n the same circumstances as the trial court found that the Edmondses waived
[their] claims.” They further assert that the trial court erred in finding that, by signing the
Agreement and the Acknowledgment, the Edmondses had signed a release.4 Lastly, they
argue that the trial court erred in finding that, by signing the Agreement and the
Acknowledgment, the Edmondses had entered into an accord and satisfaction with
Williamson.5
¶15. The trial court granted summary judgment on several grounds. First, the trial court
found that the Agreement and the Acknowledgment that Edmonds signed were enforceable
3
Although the Edmondses make this argument on appeal, the trial court did not
find that the Edmondses waived their claims against Williamson by accepting the
settlement proceeds. The trial court found that, by signing the Agreement and the
Acknowledgment and thereby agreeing to pay the attorneys’ fees in exchange for her
settlement, Edmonds had waived her right to her claims against Williamson.
4
Although the Edmondses make this argument on appeal, the trial court did not
make a separate finding that Edmonds signed a release when she signed the Agreement
and the Acknowledgment.
5
Although the Edmondses assert these claims on behalf of both Lisa and Larry
Edmonds and argue that the trial court made findings as to both Lisa and Larry Edmonds,
the trial court made findings only as to Edmonds based on waiver, estoppel, and accord
and satisfaction. The trial court made a separate finding as to Larry Edmonds’ ability to
assert claims against Williamson.
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contracts and that Edmonds was, therefore, bound to the terms of those agreements. As
stated above, after agreeing to settle with AHP and signing a Confidential Release, Indemnity
and Assignment with AHP on May 5, 2001, Edmonds entered into two agreements with
Williamson on May 9, 2001. She signed the Agreement, which explicitly states, in relevant
part: “The Williamson Law Firm will see to it that LISA EDMONDS receives $1,500,000.00
after applicable expenses as per the acknowledgment and attorneys’ fees in the amount of
FORTY-FIVE PERCENT (45%).” Edmonds also signed the Acknowledgment, which
explicitly states, in relevant part, that “[t]hree percent of the gross recovery for expenses
ordered to be deducted from each settlement by the multi-district litigation authority” would
be deducted from the settlement proceeds.
¶16. Second, the trial court granted summary judgment on the ground that Edmonds’
claims were barred because of waiver and equitable estoppel because she signed the
Agreement and the Acknowledgment, which set out the terms of her acceptance of the
settlement proceeds and then accepted the settlement proceeds. Third, the trial court granted
summary judgment on the ground that the Agreement and the Acknowledgment satisfied the
elements of accord and satisfaction, thus barring Edmonds’ claims against Williamson.
¶17. Although the Edmondses raise arguments regarding waiver, estoppel, release, and
accord and satisfaction on appeal, they never challenge the trial court’s first ground for
granting summary judgment. The Edmondses do not contest the fact that “the
Acknowledgment and Agreement are valid and enforceable contracts, and . . . the Plaintiff
must abide by the terms contained in the agreements.” The Edmondses also do not dispute
the fact that Edmonds signed these documents and do not otherwise question the trial court’s
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conclusion that Edmonds is, therefore, bound by these documents. Thus, even if the
Edmondses were to prevail on their waiver, estoppel, release, and accord and satisfaction
claims, the trial court’s decision to grant summary judgment would still stand on the ground
that Edmonds is bound by the terms of the Agreement and the Acknowledgment, both of
which the trial court found to be enforceable. Because the Edmondses do not raise the issue
of the validity of these agreements for appellate review, this Court need not address it on the
merits. See Trinity Mission Health & Rehab of Holly Springs, LLC v. Lawrence, No. 2008-
CA-00027-SCT, 2009 Miss. LEXIS 67, at * 13 (Miss. Feb. 12, 2009) (citing Hood ex rel.
State Tobacco Litigation v. State, 958 So. 2d 790, 815 n.17 (Miss. 2007); Collins v.
Tallahatchie County, 876 So. 2d 284, 286 n.5 (Miss. 2004)). Therefore, this Court finds
that, regardless of the merits of the Edmondses’ first four claims, the trial court’s grant of
summary judgment must be affirmed on the basis of its analysis of the enforceability of the
agreements, which is not challenged by the Edmondses.
B. Larry Edmonds’ Claims Against Defendants
¶18. The Edmondses also claim that Larry Edmonds may pursue claims for malpractice and
breach of fiduciary duty against the Defendants. They argue that Larry “may be able to
establish” a lawyer-client relationship with Williamson despite never signing a representation
agreement, that Larry “may also be able to establish . . . breach of a duty” because the record
is unclear as to whether Williamson advised Larry concerning a loss-of-consortium claim,
and that Larry “may be able to prove that he suffered damages.” Williamson argues that
Larry has no right to recover against him because he never entered into a representation
agreement with Williamson and never asserted a claim against AHP.
11
¶19. This Court has held that claims of breach of fiduciary duty fall under claims of legal
malpractice. See, e.g., Wilbourn v. Stennett, Wilkinson & Ward, 687 So. 2d 1205, 1215
(Miss. 1996) (citing Hartford Accident & Indem. Co. v. Foster, 528 So. 2d 255, 285 (Miss.
1988)) (“[L]egal malpractice may be a violation of the standard of care of exercising the
knowledge, skill, and ability ordinarily possessed and exercised by members of the legal
profession similarly situated, or the breach of a fiduciary duty.”). This Court has stated that,
to recover in a legal malpractice action, the plaintiff must prove by a preponderance of the
evidence: 1) the existence of a lawyer-client relationship; 2) negligence on the part of the
lawyer in handling the client’s affairs; and 3) proximate cause of the injury. See, e.g., Lane
v. Oustalet, 873 So. 2d 92, 98-99 (Miss. 2004) (citations omitted); Wilbourn, 687 So. 2d at
1215 (citations omitted); Hickox v. Holleman, 502 So. 2d 626, 633 (Miss. 1987).
¶20. This Court finds that the record supports the trial court’s conclusion that Larry
Edmonds cannot establish legal malpractice claims against Williamson or Miller. First, we
address the issue of whether a lawyer-client relationship existed. In Williamson’s answer to
the Edmondses’ first amended complaint, Williamson stated:
Larry Edmonds accepted and used the services of defendants and associated
attorneys knowing that compensation was expected, so that a contract was
implied for the payment of attorneys [sic] fees. It is admitted that defendants
undertook to and did represent both Mrs. Edmonds and Mr. Edmonds and
undertook to settle Mr. Edmonds’ claim in connection with the underlying case
as well [as] Mrs. Edmonds’ claim, both with the knowledge and consent of
Mrs. Edmonds and Mr. Edmonds.
Williamson further stated:
It is denied that the written contract of representation does not govern the
relationship of Mr. Williamson and Mr. Edmonds. A contract was implied for
the payment of attorneys’ fees by Mr. Williamson [sic]. Under the
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circumstances, since the claim of Mr. Edmonds was derived from the claim of
Mrs. Edmonds, the implied contract was identical to the written contract of
representation for the claim of Mrs. Edmonds, from which it was derivative.
Further, Mr. Edmonds on or about May 5, 2001 or shortly thereafter, for a
valuable consideration, executed a ‘Confidential Release, Indemnity and
Assignment,’ in which he affirmed that ‘No attorneys have a pecuniary interest
in the settlement proceeds allocated to Claimant, other than the Claimant’s
counsel, (emphasis added),” and further acknowledged that he had had the
opportunity to confer with counsel about the sum to be allocated to him in
settlement and related matters.
Therefore, based solely on this admission by Williamson, this Court finds that there was a
lawyer-client relationship between Larry Edmonds and Williamson.
¶21. Nevertheless, Larry Edmonds’ claims must fail because, even though a lawyer-client
relationship may have existed and even if Larry Edmonds can prove that Williamson
breached a duty owed to him, he cannot prove that he suffered any damages. On appeal, the
Edmondses argue that “[i]f Larry Edmonds establishes this [sic] his loss-of-consortium claim
had a value, because Larry Edmonds received nothing on his claim, and the bar of the statute-
of-limitations has now attached to this claim, Larry Edmonds may be able to establish that
Williamson’s breach of duty proximately damaged Larry Edmonds.” Thus, Larry Edmonds
alleges that he suffered damages because he did not receive any money for his loss-of-
consortium claim. However, the record clearly reflects that SunTrust sent a check to the
Edmondses, made out to both Lisa and Larry Edmonds, in the amount of $1,504,319.77. The
record also reflects that both Lisa and Larry Edmonds endorsed the back of the check. In
consideration for this settlement amount, Larry Edmonds signed the Confidential Release,
Indemnity, and Assignment with AHP.
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¶22. Because the record clearly demonstrates that Larry Edmonds received money for his
loss-of-consortium claim – the only claim he could have had, under the circumstances –
taking the evidence in the light most favorable to the Edmondses, this Court finds that he
cannot prove that he suffered damages. Since he cannot prove that he suffered damages,
there is no genuine issue of material fact as to his claims against Williamson or Miller for
legal malpractice, which must, as a matter of law, fail. After a de novo review of the record,
this Court finds that the trial court properly found that Larry may not maintain legal
malpractice claims against Williamson and Miller.
II. The Dispute Over the Case File
¶23. The Edmondses also raise four issues related to their dispute with Healy over their
case file. The issues raised on appeal related to the Edmondses’ case file are set out as
follows:
Issue No. 6: Do the Edmondses own the “case file” Healy created
concerning Edmonds v. Williamson, or does Healy, the
lawyer, own the “case file?”
Issue No. 7: If the Edmondses own the “case file” and if Healy wants to
retain a copy of the file, do the Edmonds [sic] have to pay for
the copy for Healy’s benefit or does Healy have to pay for
the copy?
Issue No. 8: If the Edmondses own the “case file,” does Healy have a
duty to provide all of the contents of the “case file” to the
Edmondses or may Healy withhold “work product” or other
documents?
Issue No. 9: During the course of representing the Edmondses in
Edmonds v. Williamson, Healy provided to the Edmondses
copies of documents that form a part of the “case file.” If
the Edmondses own the “case file,” does Healy have a duty
to provide the Edmondses with a document if, in the course
of the representation of the Edmondses, Healy previously
provided the Edmondses with a copy of the document?
14
¶24. As stated above, in deciding the Edmondses’ motion to compel delivery of the case
file, the trial court ordered Healy to make the Edmondses’ case file available to them in its
entirety for copying at the Edmondses’ expense, to return any original papers or property that
the Edmondses delivered to Healy, and to pay costs associated with copying any of the
Edmondses’ original papers or property if he wished to retain a copy.
¶25. On appeal, the Edmondses argue that the trial court erred by entering this order
because, as clients, their case file is their property. They further argue that the trial court
erred by requiring them to bear the copying costs. They also maintain that Healy may not
withhold any part of their case file, such as attorney work product. Lastly, they argue that
Healy must produce their entire case file even if he previously gave them copies of portions
of the documents in their case file.
¶26. Healy argues that the trial court’s order should be affirmed and that it was a
reasonable, ethical, and practical solution to the dispute between himself and the Edmondses.
Healy states that he does not have a separate client file for the Edmondses and that there is
a single, unified case file for multiple clients. He therefore argues that he cannot practically
or ethically turn over this entire unified file to the Edmondses. Healy claims that the duty
of a withdrawing attorney to return the entire case file to the client is not absolute. He further
maintains that it is ethical for an attorney to charge his client for copying costs.
¶27. The last two arguments raised by the Edmondses (issues eight and nine) are not
properly before this Court at this time. While issues six and seven challenge the propriety
of the trial court’s order, which this Court may review, issues eight and nine do not identify
errors made by the trial court in its decision regarding the case file. Furthermore, there is no
15
evidence in the record, and the Edmondses do not allege on appeal, that Healy has attempted
to violate the trial court’s order by preventing them from accessing all of the documents in
their case file, including attorney work product and documents previously copied and given
to the Edmondses. Thus, these issues are premature and preemptive in nature, and thus not
ripe for review. Cf. Thoms v. Thoms, 928 So. 2d 852, 855 (Miss. 2006) (finding that
appellant’s claim that requiring him to submit to genetic testing violated his constitutional
rights was premature and not ripe for review because appellant had not yet been required to
undergo genetic testing); Tinnon v. Martin, 716 So. 2d 604, 613 (Miss. 1998) (finding that
defendants’ claim that Mississippi Rule of Evidence 503(f) is unconstitutional was not ripe
for review because no trial level proceedings in the case had yet been held pursuant to Rule
503(f), but addressing the issue for reasons of judicial economy). Therefore, this Court does
not address issues eight and nine.
¶28. We now turn to issues six and seven, which assert that the trial court erred in its order
regarding the Edmondses’ case file. “The trial court’s grant or denial of a motion to compel
is subject to an abuse of discretion standard of review on appeal.” Elec. Data Sys. Corp. v.
Miss. Div. of Medicaid, 853 So. 2d 1192, 1209 (Miss. 2003) (citing Taylor Mach. Works,
Inc. v. Great Am. Surplus Lines Ins. Co., 635 So. 2d 1357, 1363 (Miss. 1994)). Mississippi
Rule of Professional Conduct 1.16(d) clearly states:
Upon termination of representation, a lawyer shall take steps to the extent
reasonably practicable to protect a client’s interest, such as giving reasonable
notice to the client, allowing time for employment of other counsel,
surrendering papers and property to which the client is entitled and refunding
any advance payment that has not been earned. The lawyer may retain papers
relating to the client to the extent permitted by other law.
16
Miss. Rules of Prof’l Conduct R. 1.16(d) (emphasis added).
¶29. In this case, the record indicates that the Edmondses have copies of a large portion,
if not all, of their case file. Healy represents that, following his withdrawal, the Edmondses
made as many as ten trips to his law office to review their file and to make copies of
documents at Healy’s expense. At times the Edmondses stayed overnight in a hotel and, on
some occasions, on Healy’s personal boat. Healy represents that the Edmondses also kept
copies of all file materials that they considered important during the course of the litigation,
that Healy provided the Edmondses copies of all of the depositions taken in their case, and
that the Edmondses were in attendance at most of these depositions. The Edmondses do not
dispute the fact that they copied the documents they wanted at Healy’s office on various
occasions at his expense, that they are in possession of much of their case file already, or that
they attended most of the depositions taken in their case. Also, Edmonds admitted at the
hearing for Healy’s motion to withdraw that most of the documents in the case file were
duplicates.6
6
The following exchange took place at the hearing on the motion to withdraw:
BY THE COURT: [Healy] has – in general language, he has an ethical
obligation to turn over to you your entire, quote, file,
whatever that may consist of. And I know George knows
what his obligations are to a client from whom he withdraws
from representation. And I’m sure he will do that, furnish
your new attorney all of his file material. I would assume that
is no problem.
BY MR. HEALY: It will take a little while, I think, Your Honor. And Ms.
Edmonds knows that I think we have well over 20,000
documents.
BY MRS. EDMONDS: But most of them are duplicates.
17
¶30. Given the facts of this case, this Court finds that the trial court acted within its
discretion when ordering Healy to provide the Edmondses access to the entire file for them
to copy at their expense and when ordering Healy to return the original papers and property
belonging to the Edmondses and to pay for the copying costs if he wished to retain a copy
of their original papers or property. Under the circumstances, the trial court’s order comports
with Rule 1.16(d) in that it requires Healy to do what is “reasonably practicable” in order to
protect the Edmondses’ interest. See Miss. Rules of Prof’l Conduct R. 1.16(d). Therefore,
the trial court’s order regarding the case file will be affirmed.
CONCLUSION
¶31. In their appeal, the Edmondses do not challenge the trial court’s conclusion that
Edmonds is bound by the terms of the Agreement and the Acknowledgment. In addition, this
Court finds that the trial court properly determined that Larry Edmonds could not maintain
his claims against Williamson and Miller. Therefore, the trial court’s summary judgment is
affirmed. Based on the facts of this case and Mississippi Rule of Professional Conduct
1.16(d), this Court finds that the trial court did not abuse its discretion in deciding the
Edmondses’ motion to compel delivery of the case file. Therefore, the trial court’s order
deciding the Edmondses’ motion to compel is also affirmed.
¶32. AFFIRMED.
WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS,
C HA ND LER , A ND PIER CE, JJ., CONCUR. DICKINSON, J., NOT
PARTICIPATING.
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