Tommy L. Ewing, Jr. v. Lisa Younger Neese

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2014-CA-01555-SCT
TOMMY L. EWING, JR.
v.
LISA YOUNGER NEESE, LOWNDES COUNTY
CHANCERY CLERK
DATE OF JUDGMENT: 09/29/2014
TRIAL JUDGE: HON. DOROTHY WINSTON COLOM
TRIAL COURT ATTORNEY: ROY ANDRE’ PERKINS
COURT FROM WHICH APPEALED: LOWNDES COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: ROBERTA LYNN HAUGHTON
ATTORNEY FOR APPELLEE: COURTNEY BRADFORD SMITH
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: REVERSED AND REMANDED - 08/18/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
DICKINSON, PRESIDING JUSTICE, FOR THE COURT:
¶1. A father who had served as guardian for his minor child when the chancery court
approved a settlement agreement for that minor child sought a copy of the sealed settlement
documents after he had been removed as guardian. The chancellor denied his request. But
because he had access to those documents as guardian and participated in the settlement
process, no purpose was served by keeping the sealed documents from him. So, we reverse
and remand with instructions for the chancellor to grant him access to the documents.
FACTS AND PROCEDURAL HISTORY
¶2. Tamarcus Ewing—a minor—and his mother were involved in a motor-vehicle
accident. Tamarcus sustained severe injuries and his mother died. On March 5, 2002, the
Chancery Court of Noxubee County appointed Tommy Lee Ewing—Tamarcus’s
father—guardian of Tamarcus’s person and estate. Tommy filed a complaint on behalf of
Tamarcus in the Circuit Court of Noxubee County, alleging negligence by multiple
defendants. The complaint sought damages for both the injuries Tamarcus sustained and the
wrongful death of his mother.
¶3. At some point, the parties settled the circuit-court case. On September 29, 2003, the
Noxubee County Chancery Court sealed the guardianship case file on stipulation and
agreement of the parties and attorneys of record in the circuit-court action. The Noxubee
County Chancery Court then authorized the acceptance of the settlement on November 17,
2003.
¶4. On April 14, 2006, the Noxubee County Chancery Court transferred Tamarcus’s
guardianship proceeding to the Lowndes County Chancery Court. The transfer order states
that the case was to “remain sealed,” but the guardian could view the file once filed and
docketed with the clerk’s office in Lowndes County. An identical transfer order was entered
by the Lowndes County Chancery Court.
¶5. On October 30, 2009, James C. Patton—the attorney for the guardianship—petitioned
the Chancery Court of Lowndes County to appoint a guardian ad litem for Tamarcus. He
alleged that Tommy had mismanaged Tamarcus’s funds. A guardian ad litem was appointed
2
and ordered to investigate Tamarcus’s “situation in all respects, including, but not limited
to . . . the financial aspects of his guardianship.”
¶6. On July 21, 2010, the chancellor removed Tommy as guardian of Tamarcus’s estate
after finding that seventy-five thousand dollars in annuity payments had been redirected from
a frozen guardianship account into an unfrozen account jointly owned by Tommy and
Tamarcus. The court also found that Tommy had spent those funds without court approval.
Chokwe Lumumba and Roy A. Perkins were appointed as coguardians of the estate. Tommy
was not removed as the guardian of Tamarcus’s person.
¶7. On July 26, 2013, Tommy petitioned the court for an order requiring Perkins to render
an accounting of Tamarcus’s estate. In his petition, Tommy alleged that Perkins had refused
his requests for an accounting, and because of this, Tommy did not know the location or
amount of estate assets. Nothing in the record indicates whether an accounting was ordered
or whether the court held a hearing regarding Tommy’s petition. On September 13, 2013,
Tommy filed a motion asking the court to enter an order substituting Roberta L. Haughton
for Perkins as guardian of Tamarcus’s estate. This motion was set to be heard on November
19, 2013, but nothing in the record indicates whether the hearing took place.
¶8. On May 26, 2014, Tommy sent a letter to Lisa Younger Neese—the Lowndes County
Chancery Court Clerk—requesting a copy of the settlement documents relating to the
Noxubee County personal-injury and wrongful-death case. Nothing in the record indicates
whether Neese responded to Tommy’s letter.
3
¶9. On July 14, 2014, Tommy filed his “Petition for Unredacted Copies of any and all
Settlement Documents Contained in the Estate of Tamarcus Ewing, a Minor from the
Underlying Personal Injury Wrongful Death Case Filed in Noxubee County Circuit Court.”
He named Neese and Perkins as respondents. In his petition, Tommy alleged that he had
never received a copy of the settlement documents and did not know the terms of the
settlement despite signing the settlement papers. Tommy claimed that, without the settlement
documents, he was unable to defend himself against the accusations made by Patton. He
further alleged that the Chancery Court Clerk’s office refused to give him copies of the
settlement documents. Tommy argued that, because he was a party to the underlying
personal-injury and wrongful-death action, the order sealing the case file did not apply to him
and that he was entitled to copies of the settlement documents. Tommy asked the court to
enter an order requiring the clerk’s office to give him an unredacted copy of all settlement
documents.
¶10. The chancellor held a hearing on Tommy’s petition. At the hearing, Tommy’s
attorney stated that Perkins was not a proper party to the action. The chancellor dismissed
Neese from the proceeding and ruled that she was not a proper party because she was simply
following the court’s order sealing the file. After dismissing Neese, the judge treated
Tommy’s petition as a motion. Tommy argued that not having the documents had “caused
him a lot [of] problems” and he needed a copy for his records. The chancellor ruled that
Tommy was not entitled to copies of the settlement documents because he was not a party
to the action and therefore lacked standing to make the request.
4
¶11. The court entered an Order of Dismissal of Tommy’s petition on September 29, 2014.
The order provides that Neese was not a proper party; Tommy was not, nor ever had been,
a party to the lawsuit, and he therefore had no standing to bring the petition; the terms of the
settlement were sealed at the request of the parties with their full knowledge and disclosure;
and Tommy’s stated reasons for unsealing had no basis in law. Tommy appealed.
ANALYSIS
¶12. Tommy raises three issues. He first argues that the chancery court file never was
sealed to begin with. Next, he contends that he is entitled to a copy of the settlement
documents because he was a party to the underlying personal-injury and wrongful-death
action that resulted in the settlement. Finally, he argues that Neese had failed to respond to
his petition, had presented no defense at the hearing, and therefore is procedurally barred
from raising any defenses on appeal.
I. The case file was sealed.
¶13. Tommy contends that the chancellor relied on an order that sealed the Noxubee
County Circuit Court action, but not the Lowndes County Chancery Court file. This,
however, is incorrect. The order in question was entered on September 29, 2003, by the
Noxubee County Chancery Court for Cause Number 2002-21.1 It provides that the subject
file shall be sealed “as per stipulation and agreement of all the parties and counsel of record
in Civil Action Number 2002-095 in the Circuit Court of Noxubee County, Mississippi.”
1
This is the estate case’s cause number before it was transferred to the Lowndes
County Chancery Court.
5
¶14. Tommy mistakenly believes that this order sealed the Noxubee County Circuit Court
action apparently because that case’s cause number is mentioned in the order. But the above-
quoted text simply means that all of the parties and counsel of record in the circuit-court
action stipulated to and agreed to seal the estate case’s file. Furthermore, when the estate
case was transferred from Noxubee to Lowndes County, the transfer orders stated that the
case was to remain sealed as previously ordered by the court.
II. Tommy was entitled to the settlement documents.
¶15. The chancellor held that Tommy did not have standing to bring his petition because
he was not a party to the estate case. However, this case is not about standing, nor is it—as
the dissent incorrectly suggests—whether the documents at issue should be un-sealed.
Tommy does not seek to intervene in any case or litigation, and he has not requested the
documents be unsealed. He seeks no more than access to the sealed documents, and the
question before us is whether he should be granted access.
¶16. The chancellor held that Tommy’s stated reasons for unsealing the documents had no
legal basis. On appeal, Tommy argues that the sealing order does not apply to him because
he was a party to the underlying personal-injury and wrongful-death action that resulted in
the settlement agreement.
¶17. In Estate of Cole, this Court recognized that Mississippi “favors access to public
records,” while public policy favors out-of-court settlements.2 As a result, courts must
2
Estate of Cole v. Ferrell, 163 So. 3d 921, 926 (Miss. 2012).
6
balance3 the public’s right to access with private interests favoring confidentiality when
deciding whether or not to seal a case.4 Public interests favoring access include cases with
at least one party that is a public entity or public official, or cases involving matters of public
concern.5 On the other hand, private interests favoring the granting of confidentiality include
cases with private litigants concerning matters that are not of public concern,6 agreements
that would protect the identity of victims,7 and “shielding confidential settlement agreements
from public scrutiny.”8
¶18. The dissent’s reliance on the Estate of Cole test—which addressed whether a
settlement agreement should remain sealed from the general public—is misplaced. That test
is not relevant here, as no party has challenged the chancellor’s decision to seal the
documents. Ewing merely seeks access to the documents—which he concedes will remain
3
The record before us does not reflect that the chancellor conducted any such
balancing. But Tommy has not argued that the case should not have been sealed. Rather,
he only has contended that the chancellor should have given him access to the sealed
documents.
4
Estate of Cole, 163 So. 3d at 926 (citing State Farm Fire and Cas. Co. v. Hood,
2010 WL 3522445, *2 (S.D. Miss. Sept. 2, 2010)).
5
Estate of Cole, 163 So. 3d at 926 (citing State Farm Fire and Cas. Co., 2010 WL
3522445 at *2).
6
Estate of Cole, 163 So. 3d 921, 927 (Miss. 2012) (citing State Farm Fire and Cas.
Co., 2010 WL 3522445, at *2).
7
Estate of Cole, 163 So. 3d 921, 926 (Miss. 2012) (citing Marcus v. St. Tammany
School Board, 1997 WL 313418, **6–7 (E.D. La. June 9, 1997)).
8
Estate of Cole, 163 So. 3d at 928.
7
sealed as to the general public—for his personal use. The dissent cites no authority that
would support denying Ewing access.
¶19. In Williamson v. Edmonds, this Court found that confidentiality agreements and
sealing orders are not intended to prevent individuals from obtaining information about cases
in which they participated.9 Former clients brought a claim against an attorney who
previously had negotiated a settlement for them.10 The terms of that settlement agreement
were sealed by the trial court, and the clients executed a confidentiality agreement in
exchange for the settlement funds.11 In the subsequent litigation, the attorney refused to
answer the client’s discovery requests, alleging they violated attorney-client privilege and the
confidentiality agreement signed by the clients in the settlement case.12
¶20. On interlocutory appeal, this Court held that the confidentiality agreement and sealing
order were in place “to prevent public dissemination” of the litigation and settlement, “not
to prevent the [clients] from obtaining information relating to the case they participated in
as plaintiffs.”13 And contrary to the dissent’s contention, Williamson’s relevant holding did
not in any respect turn on the existence of the attorney-client privilege, but rather, on the
purpose for orders sealing documents: to prevent public dissemination.
9
Williamson v. Edmonds, 880 So. 2d 310, 321 (Miss. 2004).
10
Id. at 312, 314.
11
Id. at 314.
12
Id. at 313.
13
Id. at 321.
8
¶21. Like the clients in Williamson, Tommy is seeking information relating to a case in
which he participated. While he was not a plaintiff in the personal-injury and wrongful-death
case , Tommy participated as Tamarcus’s Next Friend and general guardian. As Tamarcus’s
Next Friend and guardian, Tommy was privy to all aspects of the circuit-court case
and—more importantly—the settlement agreement. In fact, Tommy signed the settlement
agreement and other documents relating to the settlement. Furthermore, as the guardian of
Tamarcus’s estate from 2002 until his removal in 2009, Tommy had access to all of the
financial information relating to the estate, including the settlement agreement.
¶22. While it is true that courts have discretion to seal, and refuse access to, documents,
that discretion may be exercised only where a legal basis to do so exists. Here, the legal basis
for sealing the settlement documents was privacy. Because Tommy was privy to all the
details of the sealed settlement agreement, no interest in privacy is advanced by keeping the
documents from him.
¶23. The dissent flips this analysis on its head, focusing only on Ewing’s perceived lack
of need for the information, with no attention to the true issue of a need for privacy. Our law
clearly predicates denial of access to sealed documents on an interest in privacy and here, the
person requesting access actually participated in the settlement and has had access to the
documents, so no interest in privacy can be served by keeping the documents from him. The
dissent’s extensive and tortured recitation and characterization of Tommy’s title and conduct
has no bearing on the issue before us for decision.14
14
The dissent incorrectly concludes that we have not examined the facts in the record
it uses to attack Ewing’s character and conduct. We indeed have examined them, but find
9
¶24. Therefore, we hold that the chancellor erred by denying Tommy’s request for a copy
of the settlement documents.
III. Neese’s Failure to Respond
¶25. Tommy also argues that Neese is barred from presenting a defense on appeal because
she failed to put on a defense at trial. In any event, Neese’s arguments on appeal are
unavailing. As appellee, Neese argues that Tommy failed to serve her in a manner consistent
with the Mississippi Tort Claims Act. She also argues that Tommy has filed a frivolous
appeal in violation of the Mississippi Litigation Accountability Act and asks the Court to
award her attorney’s fees and other costs of defending the appeal.
¶26. Because we rule in Tommy’s favor, his appeal was not frivolous. As for his failure
to serve notice on Neese in a manner consistent with the Tort Claims Act, the chancellor
dismissed Neese as an improper party and treated the petition as a motion without a
respondent, rendering notice irrelevant. Further, the Tort Claims Act applies to a “claim,”
and Tommy’s request for documents does not fit the statutory definition of a claim.
Mississippi Code Section 11-46-1 defines a claim as “any demand to recover damages from
a governmental entity as compensation for injuries.”15 Tommy seeks documents, not
damages.
CONCLUSION
them irrelevant to the question before us. To be clear, the issue is not whether Ewing
properly was removed as guardian, nor is it whether he has a colorable interest in any
pending litigation, rather, the issue is whether Ewing is entitled to view the records.
15
Miss. Code Ann. § 11-46-1(a) (Rev. 2012).
10
¶27. Because Tommy was a participant in the personal-injury case and was privy to the
terms of the settlement agreement, we reverse the chancellor’s ruling denying Tommy an
unredacted copy of the settlement documents and remand the case to the Lowndes County
Chancery Court for proceedings consistent with this opinion.
¶28. REVERSED AND REMANDED.
LAMAR, KITCHENS, KING AND COLEMAN, JJ., CONCUR. RANDOLPH,
P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER,
C.J., MAXWELL AND BEAM, JJ.
RANDOLPH, PRESIDING JUSTICE, DISSENTING:
¶29. With all due respect, I am constrained to dissent to my distinguished colleague’s
opinion. My reasons are legal and factual. I agree with the majority that the standard of
review is de novo for questions of law, such as the issue of standing. See Vaughn v. Vaughn,
798 So. 2d 431, 434 (Miss. 2001). However, the issue of standing can be dispensed readily,
as is discussed more fully below. There is no legal principle or caselaw to support Ewing’s
argument that he has standing in a non-existent civil action or in a guardianship in which he
was disqualified as guardian for the estate of the ward. This leaves this Court to review the
chancellor’s ruling to deny a nonparty’s motion to access sealed records under an abuse-of-
discretion standard.
¶30. “This Court has a limited standard of review in examining and considering the
decisions of a chancellor.” Ballard v. Commercial Bank of DeKalb, 991 So. 2d 1201, 1204-
05 (Miss. 2008). This Court will not disturb the findings of the chancellor unless the
chancellor was “manifestly wrong, clearly erroneous, or applied an erroneous legal standard.”
11
Tinnin v. First United Bank of Miss., 570 So. 2d 1193, 1194 (Miss. 1990). “Where the
chancellor’s findings are supported by substantial evidence, this Court is without authority
to disturb his or her conclusions, although this Court might have found otherwise as an
original matter.” Dew v. Langford, 666 So. 2d 739, 742 (Miss. 1995). “Abuse of discretion
is the most deferential standard of review appellate courts employ.” Ashmore v. Miss. Auth.
on Educ. Television, 148 So. 3d 977, 982 (Miss. 2014). When we abide by this standard, we
“must affirm the decision, regardless of what any of us individually might have ruled had we
been the judge, unless there is a definite and firm conviction that the court below committed
clear error.” Ferguson v. Univ. of Miss. Med. Ctr., 179 So. 3d 1060, 1064 (Miss. 2015)
(internal citations omitted). I think we all can agree (although the majority’s position is
unstated) that no judge in his or her right mind would entertain a suit such as this one, against
his or her own clerk, praying for the clerk to disobey an order issued by the court it serves.
Thus, Ewing cannot verily argue that Chancellor Colom’s decision was clearly erroneous,
grossly unsound, or unreasonably illegal. See Abuse of Discretion, Black’s Law Dictionary
(10th ed. 2014) (“An appellate court’s standard for reviewing a decision that is asserted to
be grossly unsound, unreasonable, illegal, or unsupported by the evidence.”).
¶31. The majority posits my review of the record is extensive16 and tortured.17 However,
not one fact mentioned in this dissent is claimed by the majority to be misstated or
16
The review is extensive due to the paucity of facts reported in the majority leading
to the chancellor’s ruling.
17
Webster’s Dictionary defines “torture” as distort and “tortuous” as twisting and/or
devious. Torture, Tortuous, Webster’s II New College Dictionary (1st ed. 1995).
12
misrepresented. I agree with the former and reject the later. As today’s majority author,
Presiding Justice Dickinson, previously has written, “our duty [] requires us carefully to
scrutinize every case.” Bluewater Logistics, LLC v. Williford, 55 So. 3d 148, 156 (Miss.
2011). “Yet our duty requires us in every case to be as careful and as sensitive to error as we
can be, and we cannot condone a standard that allows us to be less sensitive to error in one
case than in another.” Id. A disinterested review of the trial court record fails to identify any
facts or legal arguments which support reversal. The trial record reveals innumerable
egregious acts by Ewing which led to his removal as guardian, years before this frivolous
proceeding was filed against the chancery clerk of Lowndes County, followed by this
frivolous appeal, naming the chancery clerk of Lowndes County as appellee.
Chancery Court Proceedings
¶32. On March 5, 2002, Tommy Ewing Jr. (“Ewing”) was appointed upon his application
to be guardian of his son (“Tamarcus”) and his son’s estate in the Chancery Court of
Noxubee County, after Tamarcus’s mother was killed in a car accident, in which Tamarcus
was injured.18 Ewing was required to file annual accountings. Pursuant to statute, Ewing,
upon separate application to the chancery court, sought and obtained permission to file a
wrongful- death and personal-injury lawsuit in his representative capacity “for the use and
benefit of [the] ward,” Tamarcus.19 His name, although included in the style of the civil
action, was solely in a titular capacity. Thus, Ewing as a party existed in name only, for he
18
The duties of a guardian are well described in Sections 93-13-1 to 93-13-281 of
the Mississippi Code. Loyalty and fidelity to the ward are paramount.
19
See Miss. Code Ann. § 93-13-27 (Rev. 2013); Miss. R. Civ. P. 17(c).
13
had no claim. He was neither a real nor actual plaintiff. In September 2003, Ewing, in his
role as guardian, moved the court to seal the file of the civil suit. A settlement of Tamarcus’s
personal injury and sole wrongful-death beneficiary claims was approved by the chancellor
in November 2003.20 The civil case was dismissed in December 2003.
¶33. As early as August 2004, Ewing was requesting per diem and mileage expense
payments for the time spent with his son after the accident.21 During the pendency of this
present action, Ewing informed the chancellor that he was disabled. The record before us
reveals no independent source of income or benefits for Ewing.
¶34. In March 2005, Ewing filed a Petition for Review, requesting that he be allowed to
review the sealed file to determine:
the total amount of settlement proceeds tendered by each and every defendant
in the instant case;
the total amount of attorneys fees [sic] tendered to each and every attorney
participating in the instant case;
the total amount of proceeds tendered on behalf of the minor child Tamarcus
Ewing and the mechanism for disbursing those funds;
that the Court issued [sic] an order determining whether a full and final
dispersal of all funds has been accomplished in accordance with the settlement,
and a full payment of expenses.
20
Ewing, as an individual, neither had nor made a claim as a real party in interest
based on the accident.
21
Ewing requested and received $7,725.00 in per diem, $2,455.20 in mileage, and
a $20,000 fee “which represents the balance of attorneys’ fee [sic]. . . for all of the travel and
expense Tommy Ewing had to incur in the prosecution of the civil litigation. . . .”
14
The petition was set for hearing and provided notice to counsel for the defendants in the
original civil suit. (Today’s petition provided notice to neither the attorneys for Tamarcus
and/or the guardianship, nor counsel for the defendants.). Nothing in the record indicates
Ewing sought or obtained a ruling on that petition.
¶35. A year later, the guardianship was transferred upon Ewing’s request from Noxubee
County to Lowndes County, where Ewing and Tamarcus lived in a house paid for out of
funds from the guardianship.22 In the 2006 order transferring the guardianship, the chancellor
specifically provided permission for the guardian, then Ewing, to view the entire file upon
filing and docketing in Lowndes County. No record evidence reveals that Ewing afforded
himself that opportunity in his role as guardian. After a subsequent pleading was filed
improperly in Noxubee County, the chancellor again stated that the guardianship had been
transferred to Lowndes County, and the record would remain sealed; yet, once again, Ewing,
in his role as guardian, was permitted to view the record.
¶36. Through the five years-plus Ewing acted as guardian, he was no stranger to the court.
Ewing filed countless petitions seeking approval to expend guardianship funds. Court orders
provided for the payment of home insurance premiums, ad valorem taxes, maintenance and
repairs, landscaping services, a security system, a storage building, blinds, hardwood floors,
carpet, appliances, and numerous sets of furniture for the home owned by the Estate and
occupied by Guardian Ewing and ward Tamarcus.
22
Total house purchase disbursement equaled $144,284.
15
¶37. In 2009, James Patton, the attorney who filed these requests for Ewing, filed a Motion
to Appoint Guardian Ad Litem, alleging, inter alia, that Ewing was in possession of a
significant amount of money belonging to the estate of the ward which needed to be
deposited in an interest-bearing account. He prayed that Ewing be ordered to produce all
bank records and account information. Patton averred that a conflict had arisen, as he was
counsel for both Ewing and the guardianship. He prayed that attorney Lee Ann Turner be
appointed guardian ad litem (GAL). In a November 2009, order appointing Turner as GAL,
the chancellor noted that an accounting had never been filed by Ewing as guardian. Turner
was ordered to investigate the ward’s situation, including all finances, and Ewing was
required to fully cooperate.
¶38. After Ewing denied access to the ward, the ward’s home, and all records, and after
Ewing refused to turn over checks exceeding $82,000 belonging to the guardianship, the
GAL filed a Notice to the Court Regarding Guardian Ad Litem’s Investigation and Motion
for Order to Show Cause. Chancellor Colom ordered Ewing to appear and show cause for
his failure to comply with court orders. The chancellor further ordered that all accounts
holding guardianship funds be retitled “Guardianship of Tamarcus Ewing.” The chancellor
found that Ewing had redirected guardianship funds into accounts with Ewing as a co-owner.
The chancellor further ordered that all annuity payments be redirected and immediately
frozen in the account in which they were deposited. The chancellor found that Ewing’s
“redirection of the annuity payments to a non-guardianship, non-frozen account was not
authorized by Order of this court and was a misappropriation of funds belonging to the
16
child’s guardianship.” Ewing moved to continue the hearing scheduled on the show-cause
hearing. Subsequently, Chokwe Lumumba and Roy Perkins entered appearances on his
behalf.
¶39. On March 12, 2010, the GAL filed a report with the court. Her attached certificate of
service reveals that the report, accompanying exhibits, and copies of bank records, which
included an August 31, 2004, Deposits and Disbursements and a November 3, 2003,
Proposed Periodic Payment Spreadsheet representing all settlement monies, was provided
to counsel for Ewing (Perkins and Lumumba) and counsel for the guardianship (Patton).23
The report informed the court that Ewing had refused to cooperate, had failed to file an
accounting since he had been appointed guardian of the estate, had failed to reinvest $82,000
of guardianship funds, had improperly directed at least $79,000 of guardianship funds into
a jointly named co-account controlled by him individually, had incurred numerous overdraft
charges, and had used guardianship funds without court authorization for items unrelated to
Tamarcus’s needs. The bank records reveal Ewing had made more than $50,000 in
unauthorized cash withdrawals and paid more than $29,000 by checks and/or debit card to
numerous merchants, including BQuick, Sprintmart, and other convenience-type stores, also
unauthorized by the court. The report also read that “the bank records of Tamarcus’s social
security funds do not appear to show a need for additional funds from the guardianship to
meet the child’s individual needs that were not being met by court-authorized expenditures
23
Nothing in the record evidences that Ewing requested these documents from either
of these new attorneys who represented Ewing individually, except for the claim made
against Perkins in this proceeding, which then was waived during the proceeding and
dismissed. See ¶ 42, infra.
17
of guardianship funds.”24 The report recommended that Ewing be removed as guardian of the
estate.
¶40. In July 2010, the show-cause hearing was held. Understandably, Ewing was stripped
of his powers and access when he was removed as guardian of the estate of Tamarcus.25 No
appeal was taken of that order. Turner was relieved as GAL, and Patton was relieved as
attorney for the guardianship. Lumumba and Perkins were appointed coguardians.
¶41. On February 7, 2013, the coguardians moved the court for permission to withdraw as
guardians of the estate. Lumumba subsequently was discharged, but Perkins was ordered to
remain as guardian. On July 26, 2013, Ewing individually filed a petition for an accounting
of the estate. Ewing alleged that he “has not been given any information as to the deposits
into or disbursements from the estate of Tamarcus Ewing, a minor, despite having made
several requests to the legal guardian of the estate of Tamarcus Ewing, a minor.” On
September 13, 2013, Ewing moved to substitute Roberta L. Haughton, his present attorney,
as “administrator” [sic]26 of the estate of Tamarcus.
¶42. Then, nearly a year later, on July 14, 2014, four years after Ewing was disqualified as
guardian and more than ten years after the civil case was dismissed, Ewing individually filed
another petition, this time seeking unredacted copies of all settlement documents related to
Tamarcus’s estate. Ewing named the Lowndes County Chancery Clerk and Roy Perkins,
24
Tamarcus’s social security payments were approximately $790 per month.
25
See Miss. Code Ann. § 93-13-23 (Rev. 2013).
26
Throughout the proceedings below and on appeal, Ewing consistently refers to the
guardian of the estate as the “administrator of the estate.”
18
improperly identified as the administrator of the estate, as respondents. Ewing claimed that,
because he had been at one time a party to his son’s civil action, he was forever entitled to
ignore the court’s orders sealing the records and to receive unredacted copies of all
settlement documents.
¶43. During the hearing on that petition, Ewing’s counsel advised the chancellor that the
guardian of Tamarcus’s estate (Perkins) was not a proper party – “Mr. Perkins, Your Honor,
after reflection, I determined that he is really not a proper party at this stage because all we’re
seeking is a copy of the records.” It was revealed that Perkins had not even been served.
When Perkins was dismissed, only the chancery clerk remained as a party. Following
Perkins’s dismissal, the chancellor questioned Ewing’s counsel as to why the clerk was made
a party:
Why is the clerk a party, ma’am? The clerk did not seal, redact, do anything,
in this case. She is not a party and she is dismissed. . . . She is not a party to
this. This is an action that was sealed by Order of the Court, but if I unseal it,
she will do whatever I order her to do. She’s not a party. . . . She has no
interest in this case. . . . So she may be excused.
The chancellor informed Ewing that the motion should have been directed to the court.
Respondents, such as the clerk, were neither necessary nor proper. With both respondents
dismissed, the chancellor treated Ewing’s petition as if it were a motion.27
¶44. The chancellor advised that “the only person who is a party now in the Chancery
Court . . . is Tamarcus Ewing’s legal guardian, . . . Mr. Roy Perkins.” The chancellor noted
27
Even if we had decided a right to appeal was warranted on a denial of a petition to
unseal the documents, would not such a petition require notice to the guardian of the estate
and to all parties and their counsel from the settled, civil suit? No such notice appears.
19
that Tamarcus’s case settled in 200228 and that there was no ongoing, legal dispute with the
settling defendants.
Your client has been in front of me do you know how many times asking for
money. He sat on this stand and testified he approved the settlement in 2002
[sic]. He signed documents in Circuit Court releasing everybody, agreeing to
it to be sealed. Now, if he didn’t get copies, that’s between him and his
lawyers then. This Court sealed them at their request. I can’t release them
because he’s not a party.
Before the chancellor made her final ruling, Ewing cited no applicable caselaw in support
of his being allowed access to the sealed documents. The chancellor denied Ewing’s
petition/motion. The chancellor found that (1) the clerk was not a proper party, (2) Ewing
was not a party and had no standing, (3) Ewing’s reasons for unsealing the documents lacked
legal basis, and (4) the guardian of the estate was not a party to the petition.
¶45. The majority suggests that the “extensive and tortured recitation” of these facts
considered by the chancellor has “no bearing on the issue before us for decision.” (Maj. Op.
¶ 23). I am not sure how an appellate court can determine if a trial judge was “manifestly
wrong, clearly erroneous, or applied an erroneous legal standard” without meticulously
examining the record to determine if the findings of fact and conclusions of law contained
in her decree find support in the record. This journey was necessary to appreciate the facts
and law presented to the chancellor and the basis (or lack thereof) of the petition and, finally,
Ewing’s involvement. The chancellor recounted the decade-long history of Ewing taking
advantage of the ward, which this Court should consider in determining whether the
chancellor abused her discretion in denying Ewing access to the sealed documents. Without
28
The case settled in 2003.
20
reporting the facts and history of this case, the majority opines that Ewing should prevail,
even without notice to the guardian or the settling defendants. It is crystal clear that Ewing
failed to satisfy the chancellor that he had a colorable interest in pending litigation, for there
is no pending litigation, other than this frivolous appeal. I find no error in the chancellor’s
dismissal of Ewing’s petition.
Analysis
¶46. Tommy Ewing has never been a real party in interest in any of these proceedings, as
contemplated by Rule 17 of the Mississippi Rules of Civil Procedure and our guardianship
laws. He was a titular plaintiff, one in name only, in the original, now dismissed civil action.
He was guardian of Tamarcus’s estate before he was disqualified for blatant misappropriation
of funds. Initially, Ewing’s authority was limited to filing suit on behalf of Tamarcus in his
representative capacity, i.e., guardian. As a guardian, Ewing possessed no privileges or
powers outside that granted by statute, caselaw, and the chancery court. The rights,
privileges, and prerogatives attached to the title of guardian existed only during the time
Ewing held such title. Once disqualified, any semblance of authority or power to delve into
Tamarcus’s financial affairs vanished. Ewing was more than a stranger to these proceedings,
for his less-than-altruistic behavior transformed him into an interloper. Those versed in the
maxims of chancery practice would muse that Ewing came to court with worse than unclean
hands; his hands were downright dirty. Ewing lacked a cognizable, legal interest in the civil
suit, which was settled long ago. That power rests in the bosom of the court, to be carried out
21
by the guardian (Perkins), or a GAL, if needed, should the court deem it appropriate or
necessary.
¶47. The majority sets forth the test for standing – a party has standing “‘when they assert
a colorable interest in the subject matter of the litigation or experience an adverse effect from
the conduct of the defendant, or as otherwise provided by law.’” Burgess v. City of Gulfport,
814 So. 2d 149, 152-53 (Miss. 2002) (quoting State v. Quitman County, 807 So. 2d 401, 405
(Miss. 2001)). Ewing can assert no colorable interest in the subject matter of the litigation,
for there is no ongoing litigation. Likewise, he can experience no adverse effect from the
conduct of the defendant, for there is no defendant. “[T]he issue adjudicated in a standing
case is whether the particular plaintiff had a right to judicial enforcement of a legal duty of
the defendant or . . . whether a party plaintiff in an action for legal relief can show in himself
a present, existent actionable title or interest, and demonstrate that this right was complete
at the time of the institution of the action.” City of Picayune v. S. Reg’l Corp., 916 So. 2d
510, 526 (Miss. 2005) (citing American Book Co. v. Vandiver, 181 Miss. 518, 178 So. 598,
599 (1938)). He is not and never has been a party plaintiff in any of these proceedings. He
has not shown or presented an existent title or interest in this proceeding. There is no legal
duty imposed on a nonexistent defendant. Ewing lacks standing to bring an action to
invalidate, modify, or seek enforcement of the settlement agreement.
¶48. There is no record evidence as to why Ewing has need of the settlement documents,
or why Ewing named the chancery clerk as a party, or why Ewing dismissed the guardian of
Tamarcus’s estate. Furthermore, this information was provided to all attorneys who either
22
represented Ewing, Tamarcus, Tamarcus’s guardianship, or Debra’s estate during the civil
suit and settlement negotiations. Those attorneys include The Crawley Law Office, James C.
Patton, Caroline C. Moore, Edward Sanders, Bennie L. Turner, Armstrong Walters, Michael
C. Steele, David Lambert, David Owen, and Brian H. Neely. Aside from a letter sent to
Sanders, there is no record evidence that Ewing attempted to obtain and was refused the
documents he signed from any of these attorneys.
¶49. Ewing forfeited any rights in futuro to participate in financial affairs of the ward,
having disqualified himself and been removed from his position of trust. Ewing never has
provided any court, much less the trial court, a clear, concise reason to unseal the records.
Ewing simply argues that “not having the documents had ‘caused him a lot [of] problems’
and he needed a copy of his records.”29
¶50. From the record presented, including assertions by Ewing in his brief (but not in the
record), it is crystal clear that he knew (1) the identity of the defendants from his son’s civil
suit, (2) the amount of the monthly annuity payments, (3) the amount of Tamarcus’s monthly
social security payments, and (4) the amount of the full settlement. He has offered no
testimony that the sealed documents were necessary for him to fulfill his duties as guardian
for Tamarcus’s person.
¶51. Ewing plead that he needed to “defend himself” by determining “what the terms of
the settlement were to see if Mr. Ewing did anything improper with settlement proceeds”
(this issue was resolved against him without appeal in 2010) was insufficient to require the
29
See Maj. Op. at ¶ 10.
23
documents to be unsealed in 2014. Ewing never provided a single, pending civil or criminal
complaint or demand against him, although he was given multiple opportunities to do so.
Ewing also offered no legal authority to the chancellor or to this Court to support his request
as an individual. His only stated reasons were abstract, vague, without substance, and without
proof. It was Ewing’s obligation to establish a legal right to unseal the documents. He failed.
¶52. The crux of Ewing’s complaint revolves around his removal as guardian of the estate.
Ewing never appealed his 2010 removal. That train left the station several years ago. The
record is void as to where and from whom Ewing needs to defend himself. His removal was
unrelated to the settlement amount, except for failing properly to account for monies that
flowed into various guardianship accounts. The settlement amount was a set sum. The
monthly annuity sums are no different than those deposited when Ewing held the position of
guardian. His removal was for mismanagement of his son’s money. The sealed documents
do not reveal Ewing’s misappropriation and mismanagement of Tamarcus’s funds.
Documents already delivered to Ewing and in his possession, i.e., bank account records,
reveal the unauthorized withdrawals made by Ewing. Court records reveal the withdrawals
were not approved by the court.
¶53. Ewing cites Williamson v. Edmonds, 880 So. 2d 310 (Miss. 2004). Williamson is
wholly distinguishable from this case. In Williamson, the Edmondses sought a declaratory
judgment against their former attorney, Williamson.30 Id. at 312. The Edmondses were real
parties in interest, unlike in today’s case. Williamson, a party, refused to turn over documents
30
Williamson represented the Edmondses and numerous others in Phen-Fen product
liability litigation. Id. at 314.
24
requested in discovery, claiming the information was privileged and confidential. Id. The
trial court granted the Edmondses’ motion to compel and the Williamson Court granted
interlocutory review. Id. at 314. That Court affirmed the trial-court judgment, holding that
Williamson could not “shield himself from a motion to compel discovery based on the
attorney-client privilege.” Id. at 320. No claim of attorney-client privilege is made in today’s
case. Williams has no application to the case sub judice. No suit is pending against
anyone–except a dutiful chancery clerk. There was a claim and suit against Williamson.
¶54. Likewise, Estate of Cole v. Ferrell, 163 So. 3d 921 (Miss. 2012), cited by the
majority, offers no relief to Ewing. Tamarcus and the defendants have a privacy interest.31
Estate of Cole held that confidentiality should be preserved if (1) the settlement agreement
was between private parties (Tamarcus and the settling defendants are private parties), (2)
the settlement agreement did not involve public concerns (none expressed in agreements),
and (3) the settlement agreement is not necessary to resolve a claim (no claim is pending).
Id. at 929. All three prongs of the Estate of Cole were easily satisfied; therefore, the
chancellor did not err in preserving confidentiality. Although these factors generally are
applied by courts to seal documents, logic dictates that the same reasoning also should be
taken into account when a request is made to unseal documents.
¶55. Ewing has failed to provide the trial court and this Court with authority that the order
sealing the documents does not apply to him. Neither the trial court nor this Court is under
31
The majority argues that, because Ewing once had access or privity to the
documents, he should enjoy that status forever, citing no authority for such proposition.
(Maj. Op. ¶ 22).
25
an obligation to consider arguments forwhich Ewing provides no authority. See Chantey
Music Pub., Inc. v. Malaco, Inc., 915 So. 2d 1052, 1060 (Miss. 2005); M.R.A.P. 28(a)(6).
In his “ARGUEMENT” [sic] and for the first time in all proceedings, Ewing claims he is
illiterate and was unable to read the settlement documents prior to signing them. He now
claims on appeal that his attorneys did not read the documents to him and that they refused
to allow anyone else to read the documents to him. Also for the first time on appeal, Ewing
now claims he has received some notice from the Internal Revenue Service (with no writings
to support this) that taxes were not paid for the year 2013. Ewing was not the guardian for
Tamarcus’s estate in 2013. Ewing “is not entitled to raise a new issue on appeal, since to do
so prevents the trial court from having an opportunity to address the alleged error.” West v.
West, 891 So. 2d 203, 214 (Miss. 2004) (quoting Crowe v. Smith, 603 So. 2d 301, 305 (Miss.
1992)).
Frivolous Appeal
¶56. Despite the chancellor’s finding that the chancery clerk was not a proper party to this
suit, Ewing identified the clerk as the appellee and continues to pursue a frivolous appeal.
See M.R.A.P. 38. He argues that the clerk’s office “refused” his request for the settlement
documents and that the clerk “denied numerous requests.” He further argues that the clerk
failed to make any argument at the hearing on his petition and thus should be prevented from
making an argument to this Court in this appeal. Ewing argues that the chancery clerk should
not be allowed to raise any issue before this Court that was not raised before the chancellor.
The clerk was dismissed by the chancellor, for she was not a proper party. As a matter of law,
26
the clerk was under no duty to provide the requested documents to Ewing. Thus, the chancery
clerk must prevail on this appeal. The clerk is the custodian of the records, yet the clerk is
duty bound to follow the orders of the court. The order in place requires the records to remain
sealed. The clerk had no independent authority on her own to unseal the documents at the
request of Ewing. His argument otherwise is unavailing and must be rejected. I would affirm
the chancellor’s order dismissing the clerk and would remand for a hearing on costs and
expenses incurred by the clerk in defense of Ewing’s frivolous petition before the trial court
and this appeal.
Conclusion
¶57. Ewing not only failed to fulfill the duties of his office, guardian of his son’s estate;
he violated the tenets of a guardian. He redirected annuity funds into a joint account after
the court froze the guardianship account. When the GAL filed her report, she could not
account for nearly $180,000 of guardianship monies moved at Ewing’s behest. Despite the
large sums of money at his disposal, Ewing incurred unnecessary nonsufficient funds and
overdraft fees on numerous occasions. Ewing’s actions required the court to appoint a
guardian ad litem who has been paid over $32,000, none of which would the guardianship
have incurred had Ewing fulfilled his duties and obligations.
¶58. The chancellor neither erred in dismissing Ewing’s petition nor in denying Ewing
access to sealed documents. The chancellor properly dismissed his petition. Additionally,
Ewing failed to present any factual or legal basis as to why the chancellor should unseal the
record for Ewing. He has no interest in a settled action and has offered no evidence that he
27
has suffered damages as a result of the record being sealed. Ewing’s petition and subsequent
appeal is frivolous. It has no basis in law or fact. I respectfully dissent.
¶59. The judgment of the chancellor should be affirmed and this case remanded to the
chancellor to conduct a hearing on (1) whether sanctions are appropriate under Rule 11(b)
of the Mississippi Rules of Civil Procedure, (2) whether the assessment of attorney fees and
costs against Haughton and/or Ewing pursuant to the Litigation Accountability Act of 198832
are appropriate, and (3) whether damages are appropriate for violations of Rule 38 of the
Mississippi Rules of Appellate Procedure.
WALLER, C.J., MAXWELL AND BEAM, JJ., JOIN THIS OPINION.
32
See Miss. Code Ann. §§ 11-55-1 to 11-55-15 (Rev. 2010).
28