Turner & Associates P.L.L.C. v. Gerald Watkins ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-01352-COA
TURNER & ASSOCIATES P.L.L.C., THE APPELLANTS
ESTATE OF BENNIE L. TURNER AND
ANGELA TURNER
v.
GERALD WATKINS APPELLEE
DATE OF JUDGMENT: 08/28/2017
TRIAL JUDGE: HON. JAMES LAMAR ROBERTS JR.
COURT FROM WHICH APPEALED: PONTOTOC COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: RANDOLPH WALKER
ANGELA TURNER FORD
ATTORNEYS FOR APPELLEE: J. RHEA TANNEHILL JR.
JACOB BYSTROM JORDAN
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: APPEAL DISMISSED - 12/04/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., BARNES AND WILSON, JJ.
BARNES, J., FOR THE COURT:
¶1. After Gerald Watkins, a roofing contractor, was injured when he fell off a roof, he
hired Turner & Associates PLLC to file a personal-injury lawsuit against the homeowner.
Years later, Watkins discovered no action was filed on his behalf, and the statute of
limitations had expired. He filed a complaint against Turner & Associates PLLC, Bennie
Turner, and Angela Turner (collectively “Turner”), alleging legal malpractice/negligence,
breach of contract, intentional or negligent misrepresentation/fraud, negligent supervision,
and intentional/negligent infliction of emotional distress.
¶2. On August 13, 2013, Watkins filed a motion for summary judgment, which the
Pontotoc County Circuit Court denied, finding there were genuine issues of material fact as
to whether there was a binding contract between the parties and whether Turner’s paralegal,
Carolyn Turner Karriem, “had the authority to enter into the settlement of the legal
malpractice case.”1
¶3. On June 28, 2016, Watkins filed a notice of discovery, including requests for
admissions. When Turner failed to respond, Watkins filed a second motion for summary
judgment on February 8, 2017, arguing that his requests for admissions were deemed
admitted. Turner claimed it never received the discovery requests. The trial court granted
the motion, finding that under Mississippi Rule of Civil Procedure 36, the requests for
admissions were deemed admitted and Watkins was entitled to summary judgment.
¶4. Turner appeals, claiming: (1) Watkins did not prove the underlying claim would have
been successful; (2) Karriem’s authority to enter into a settlement was not addressed by the
requests for admissions; (3) the trial court failed to make any findings of fact whether Turner
received the notice of service of discovery; (4) the requests for admissions did not resolve
all genuine issues of material fact; and (5) the “release” was not enforceable. Finding the
trial court’s order granting summary judgment is not a final, appealable judgment, we dismiss
1
There appeared to be an attempt by the parties to settle the action for $300,000,
evidenced by an “Absolute Release with Indemnity and Confidentiality Covenants” signed
by Watkins. The release purported that Watkins received $18,000 from Turner in
consideration for the release and indemnity, but he did not receive any further compensation.
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for lack of jurisdiction.2
DISCUSSION
¶5. Although the issue of jurisdiction was not raised by either party, this Court must
address on its own initiative whether the trial court’s order was a final, appealable judgment.
Jeffers v. Saget, 235 So. 3d 103, 105 (¶8) (Miss. Ct. App. 2017). “Jurisdiction is a question
of law, which we review de novo.” Way v. Clark, 208 So. 3d 9, 11 (¶10) (Miss. Ct. App.
2017) (citing Germany v. Germany, 123 So. 3d 423, 427 (¶8) (Miss. 2013)). “A final,
appealable judgment is one that adjudicates the merits of the controversy which settles all
issues as to all the parties and requires no further action by the [trial] court.” Walters v.
Walters, 956 So. 2d 1050, 1053 (¶8) (Miss. Ct. App. 2007) (internal quotation marks
omitted). In its order filed on August 28, 2017, the trial court concluded:
On June 28, 2016, counsel for the Plaintiff propounded discovery including
interrogatories, request for production of documents and requests for
admissions on the Defendants. To date, the Defendants have failed to respond
to the discovery requests. Pursuant to . . . Rule 36, the Requests for
Admissions are deemed admitted since the Defendants failed to respond within
thirty (30) days. The Requests for Admissions addressed dispositive items like
admitting there was a valid contract between the Plaintiff and Defendants,
admitting the Defendants misrepresented possible awards to Plaintiff,
2
Watkins died on December 30, 2016. There is no evidence in the record of
Watkins’s death, but counsel acknowledged in the appellee’s brief that Watkins is deceased.
Counsel also stated at oral argument that he was aware of Watkins’s death when filing the
second summary-judgment motion. Turner’s reply brief argues the trial court’s order was
improper since there was no party-plaintiff. No suggestion of death was submitted, but
Watkins’s counsel filed a motion for substitution of parties on October 8, 2018. However,
based on our dismissal of the appeal, we leave this matter for the trial court, and we dismiss
the motion.
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admitting the statute of limitations expired on the Plaintiff’s claim, admitting
negligence, misrepresentations, and fraud by Defendants, and admitting that
the Absolute Release was a legally and bind[ing] document.
In light of these admissions, under Rule 56 of the [Mississippi Rules of Civil
Procedure,] there are no genuine issues of material facts and therefore
summary judgment is proper.
IT IS THEREFORE ORDERED AND ADJUDGED that the Plaintiff Gerald
Watkins’[s] Second Motion for Summary Judgment shall be, and hereby is,
GRANTED.
SO ORDERED AND ADJUDGED this the 24th day of August, 2017.
No other judgment is contained in the record. The advisory notes to Mississippi Rule of
Civil Procedure 54 state: “The terms ‘decision’ and ‘judgment’ are not synonymous under
these rules. The decision consists of the court’s opinion which consists of findings of fact
and conclusions of law; the rendition of judgment is the pronouncement of that decision and
the act that gives it legal effect.”
¶6. Here, the court’s order granted Watkins’s motion for summary judgment, but it did
not award Watkins any monetary judgment or damages. The parties have acknowledged that
the amount of judgment to be enrolled is unclear, and this Court cannot assume that the
court’s judgment was the $5,000,000 requested by Watkins in his complaint and identified
in his requests for admissions. Thus, the court’s order did not adjudicate all the issues and
requires further action by the trial court.3 See Jackson v. Lowe, 65 So. 3d 879, 882 (¶8)
3
Watkins’s counsel suggested that if the order is interlocutory, he would consent to
an interlocutory appeal. We must reject this proposition as the parties failed to follow the
procedural rules to file such an appeal. See M.R.A.P. 5.
4
(Miss. Ct. App. 2011) (This Court could not assume a “final order’s silence” on a party’s
claim for damages constituted a final adjudication; therefore, the court’s “final judgment”
was an interlocutory order.). Since the court’s order was not a final judgment for purposes
of appeal, we dismiss for lack of jurisdiction.
¶7. APPEAL DISMISSED.
LEE, C.J., GRIFFIS, P.J., CARLTON, FAIR, WILSON, GREENLEE AND
WESTBROOKS, JJ., CONCUR. IRVING, P.J., AND TINDELL, J., NOT
PARTICIPATING.
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