Brooks Werkheiser v. Malcolm Taylor

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-CA-00808-SCT
PREPAID LEGAL SERVICES, INC., HARLAND C.
STONECIPHER, BROOKS WERKHEISER, DYRE
LAW FIRM, PLLC AND ARNOLD D. DYRE
v.
MALCOM TAYLOR, ET AL.
DATE OF JUDGMENT: 04/8/2003
TRIAL JUDGE: HON. LAMAR PICKARD
COURT FROM WHICH APPEALED: CLAIBORNE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: RICHARD L. JONES
ROBERT L. GIBBS
ANDREA LA’VERNE FORD EDNEY
TESELYN AFRIQUE FUNCHES
BRIAN CRAIG KIMBALL
JOHN B. CLARK
SIMINE B. REED
ATTORNEYS FOR APPELLEES: J. BRAD PIGOTT
J. DOUGLAS MINOR, JR.
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: REVERSED AND REMANDED - 12/09/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE SMITH, C.J., EASLEY AND RANDOLPH, JJ.
RANDOLPH, JUSTICE, FOR THE COURT:
¶1. Malcolm Taylor and 26 other plaintiffs1 [collectively “Taylor”] sued Pre-Paid Legal
Services, Inc., Harlan C. Stonecipher, Brooks Werkheiser, Dyre Law Firm, PLLC, and Arnold
D. Dyre in the Claiborne County Circuit Court on April 9, 2002. The complaint sought redress
for alleged misconduct including, but not limited to, deceptive trade practices, conspiracy,
fraud and negligence. Taylor also sought a declaratory judgment stating that they were under
no contractual obligation to submit any of the claims against any of the defendants to
arbitration.
¶2. On July 22, 2002, Taylor filed a motion for partial summary judgment as to absence of
any applicable arbitration clause [“Taylor’s Motion”].
¶3. On August 14, 2002, the trial court conducted a hearing on Taylor’s Motion. This
hearing consisted entirely of arguments of counsel, with no evidence introduced. At the close
of the hearing, the trial judge took the issue under advisement.
¶4. On September 26, 2002, the trial court signed a memorandum opinion and order
granting plaintiff’s motion for partial summary judgment [“Opinion and Order”]. The trial court
also issued a judgment by which the court made it clear that the ruling on Taylor’s Motion was
final. The defendants’ counsel were not served with a copy of either the Opinion and Order or
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Loistean Barron, Debadee Brown, Louise Brown, Mary Brown, Patricia Clark, Catherine
Coleman, Florence Crystian, Angela Daniels, Henry Dorsey, Emma Doss, Carol Douglas, Laverne
Easterling, Edward Goodwin, Roosevelt Hill, Patricia Ann Jones, Donna McGloster, Dereneice
Marbley, Lonnie O’Quinn, Josie Scott, Thurman Speed, Kimberly Thompson, Arthur Lee Turner,
Michael Williams, Joann Williams, Jeanette Wilson, and Johnny Young, Jr.
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the judgment immediately upon entry, as required by Mississippi Rule of Civil Procedure
77(d).
¶5. The first notice to the Dyre defendants that this Opinion and Order and judgment had
been entered was on November 12, 2002, when they received a copy of a motion to
supplement, which counsel for Taylor in this action had filed in the case of Boddie, et al. v.
Pre-Paid Legal Servs., Inc., et al., No. 2002-64, in the Circuit Court of Bolivar County.
¶6. Pursuant to Mississippi Rule of Appellate Procedure 4(h), Pre-Paid Legal Services, Inc.
and Werkheiser [collectively “Pre-Paid”] moved to reopen the time for filing a notice of
appeal. Attached to Pre-Paid’s motion was an affidavit of a legal secretary, Kimberly Knox,
who was responsible for receiving and internally filing all correspondence, pleadings and all
other documentation related to this litigation. In her affidavit, Knox stated under oath that she
had no recollection of receiving the Opinion and Order and judgment before November 8,
2002, and that after searching the file, the pleadings index and the daily reports of mail
received, she discovered that no notice of either the Opinion and Order or Judgment had been
received prior to November 8, 2002.
¶7. The Dyre Law Firm and Arnold D. Dyre [collectively “Dyre”] joined Pre-Paid’s motion
and likewise submitted an affidavit of a legal assistant, Alenda Carmichael, the individual
responsible for receiving and filing all documents related to this action. Carmichael’s affidavit
stated under oath that Dyre’s counsel, like Pre-Paid’s counsel, never received timely notice
of the Opinion and Order or judgment.
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¶8. On March 17, 2003, the trial court conducted a hearing on Pre-Paid’s motion, in which
Dyre joined, to reopen time for filing appeal. After conducting the hearing, the trial court
denied the motion, and the present appeal followed. Pre-Paid and Dyre raise the following
issue on appeal:
I. Whether the trial court committed reversible error and violated Mississippi
Rule of Appellate Procedure 4(h) by refusing to reopen the time for filing a
notice of appeal when presented with affidavits from defendants’ counsel
demonstrating that they did not receive timely notice of entry of the order and
judgment from which they sought to appeal.
DISCUSSION
¶9. This Court’s recent decision in Pre-Paid Legal Servs., Inc. v. Anderson, 873 So. 2d
1008 (Miss. 2004), controls the disposition of the issue raised in the case sub judice because
the issue is virtually identical. In Anderson, this Court stated that, “[b]ecause defendants
provided a specific factual denial of the receipt of the notice, the presumption of the receipt
of notice was rebutted and destroyed. Therefore, the trial judge abused her discretion in
relying on this presumption in denying defendants’ Rule 4(h) motion.” Id. at 1010.
Consequently, this Court reversed the trial court’s ruling and remanded the case back to the
trial court with instructions to reopen the time for appeal. Id.
¶10. In the case sub judice, Pre-Paid and Dyre provided a specific factual denial of the
receipt of notice, thereby rebutting and destroying the presumption of notice. Additionally,
Taylor did not offer proof via affidavits or otherwise from the Circuit Clerk’s office showing
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that notice was in fact sent and/or received. Thus, the circuit court abused its discretion in
denying the motion to reopen the time for appeal.
CONCLUSION
¶11. Following our recent decision in Anderson, we reverse the order of the Claiborne
County Circuit Court which denied the motion to reopen the time for appeal, and we remand
this case to the trial court to reopen the time for filing a notice of appeal as provided in
M.R.A.P. 4(h).
¶12. REVERSED AND REMANDED.
SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND
DICKINSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ, J.,
NOT PARTICIPATING.
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