E-Filed Document Dec :46: CA Pages: 19 THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI

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1 E-Filed Document Dec :46: CA Pages: 19 THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI TOMMY L. EWING, JR. vs. VS. LISA YOUNGER NEESE AND ROY A. PERKINS PETITIONER/ PETITIONERJ APPELLANT CAUSE NO.: 2014-CA RESPONDENTS/APPELLEES BRIEF OF APPELLEE lsi Isl Courtney y B. "Corky "Corley"" Smith COURTNEY B. "CORKY" SMITH BarNo Attorney for Appellee

2 THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI TOMMY L EWING, JR. vs. LISA YOUNGER NEESE AND ROY A. PERKINS PETITIONER/APPELLANT CAUSE NO.: 2014-TS-0555 RESPONDENTS/APPELLEES CERTIFICATE OF INTERESTED PARTIES Certificate of Interested Persons The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court of Mississippi or the Court of Appeals for the State of Mississippi may evaluate possible disqualification or recusal. 1. Courtney B. "Corky" Smith, attorney for Appellee 2. The Honorable Roberta Haughton, attorney for Appellant 3. Judge Dorothy Colom, trial court Judge and Honorable Judge for the Lowndes County Chancery Court 4. Honorable Roy Perkins, Jr., Trial Court Respondent and Co-Appellee Isl Courtney B. "Corky Smith Courtney B. "Corky" Smith Bar No Attorney for Appellee 1

3 TABLE OF CONTENTS 1. CERTIFICATE OF INTERESTED PARTIES TABLE OF CONTENTS TABLE OF AUTHORITIES STATEMENT OF THE ISSUES STANDARD OF REVIEW STATEMENT OF THE CASE SUMMARY OF THE ARGUMENT ARGUMENT I The Chancery Clerk is Not a Proper Party Jl Appella.nt Lacks Standing to Maintain This Action and Appeal III Appellant Failed to Follow the Mississippi Tort Claims Act IV. Appellant is Engaging in a Frivolous Appeal CONCLUSION CERTIFICATE OF SERVICE

4 TABLE OF AUTHORITIES Mississivvi Code Miss. Code Ann. 11 ~46~ Miss. Code Ann. 11 ~46~ I Miss. Code Ann. 11 ~46~ Miss. Code Ann. 11~55~ Mississippi Rules of Court Miss. R. Civ. P. Rule Miss. R. App. P. Rule Mississippi Rules of Professional Conduct Miss. R. Prof Conduct Rule 1.16( d) Mississippi State Bar Ethics Opinions MSB Ethics Opinions Nos. 49 and Mississippi Supreme Court Decisions Balius v. Gaines, 95 So.3d 730 (Miss. 2012) Barrett v. Jones, Funderburg, Sessums, Peterson & Lee, LLC, 27 So. 3d 363 (Miss. 2009) Biglane v. Under the Hill Corp., 949 So.2d 9, (Miss.2007) Boykin v. Boykin, 565 So.2d 1109 (Miss. 1990) Benvenuti v. McAdams, 162 So.3d 808 (Miss. 2015) Carr v. Town of Shubuta, 733 So.2d 261, 265 (Miss.1999)

5 City of Belmont v. Mississippi State Tax Com 'n, 860 So. 2d 289, 296, ~13 (Miss. 2003) City of Picayune v. Southern Regional Corp., 916 So. 2d 510, 526 (~40) (Miss. 2005» Cummings v. Benderman, 681 So.2d 97,100 (Miss.1996) Hall v. City of Ridgeland, 37 So. 3d 25, 33, ~24 (Miss. 2010) Harrison County v. City ofguljjjort, 557 So. 2d 780, 782 (Miss. 1990) In re City of Biloxi, 113 So. 3d 565, 570 (~13) (Miss. 2013) Kinney v. Catholic Diocese of Biloxi, Inc., 142 So. 3d 407, 413 (~14) (Miss. 2014) McGriggs v. State, 2012, 117 So.3d 626, rehearing denied, certiorari dismissed 117 So.3d Miss. Dep't of Pub. Safety v. Stringer, 748 So.2d 662, 665 (Miss.l999) Posey v. Pope, 130 So. 3d 1183, (~8) (Miss. Ct. App. 2014) Reddell v. Reddell, 696 So.2d 287,288 (Miss. 1997» Schmidt v. Catholic Diocese of Biloxi, 18 So. 3d 814, 827 fn. 13 (Miss. 2009) Skinner v. Skinner, 509 So.2d 867, 869 (Miss. 1987) Tucker v. Prisock, 791 So.2d 190, 192 (Miss.200l) Tutor v. Tutor, 494 So.2d 362,364 (Miss.l986)

6 Univ. of Miss. Med. Ctr. v. Easterling, 928 So.2d 815, 820 (Miss.2006) Wood v. Wood, 495 So.2d 503,507 (Miss.1986) Mississippi Court of Appeals Decisions Burge v. Richton Municipal Separate School Dist., 797 So.2d 1062 (Miss. Ct. App. 2001) Moore v. Marathon Asset Management, LLC, 973 So. 2d 1017 (Miss. Ct. App. 2008) Tolbert v. Southgate Timber Co., 943 So. 2d 90,93 (Miss. Ct. App. 2006)

7 STATEMENT OF THE ISSUES 1. Was the Chancellor correct in finding a lack of standing for the Appellant? 2. Was the Chancellor correct in dismissing the Lowndes County Chancery Clerk from the action as an improper party? 6

8 STANDARD OF REVIEW The Court of Appeals and the Supreme Court apply "a limited standard of review on appeals from chancery court." Tucker v. Prisock, 791 So.2d 190, 192 (Miss.200l) (citing Reddell v. Reddell, 696 So.2d 287,288 (Miss. 1997)). Great deference is given to the findings of a Chancellor; in fact, the Chancery Court's factual findings will not be disturbed if they are "supported by substantial evidence unless we can say with reasonable certainty that the [C]hancellor abused his discretion, was manifestly wrong [or] clearly erroneous[,] or applied an erroneous legal standard." Biglane v. Under the Hill Corp., 949 So.2d 9,13-14 (Miss.2007) (quoting Cummings v. Benderman, 681 So.2d 97,100 (Miss.1996)). Moreover, before an Appeals Court may reverse the determination of a Chancellor, "a party must present sufficient evidence reflecting an abuse of discretion." Boykin v. Boykin, 565 So.2d 1109 (Miss. 1990) (citing Skinner v. Skinner, 509 So.2d at 869; Wood v. Wood, 495 So.2d 503,507 (Miss.l986); Tutor v. Tutor, 494 So.2d 362,364 (Miss.l986)). 7

9 STATEMENT OF THE CASE The nature of this case involves an appeal from the Lowndes County Chancery Court's decision, wherein the Lowndes County Chancery Clerk was dismissed as an improper party. In addition to such finding, the Court found the Appellant lacked standing to bring the suit, and summarily dismissed the suit. The Appellant's original complaint sought relief in the form ofunredacted settlement documents from an action involving a minor. The Appellant was originally in charge of the minor's estate, but was removed, after a hearing, for alleged improprieties. Appellant's arguments, although highly unpersuasive when met with actual facts by the Trial Court, found no place of refuge in the Lowndes County Chancery Court. Feeling aggrieved by the decision of the Lowndes County Chancery Court, the Appellant files this appeal. His argument is nothing more than a "re-hash" of his complaint, and has no basis in law or fact. Statement of the Facts and Summary of the Lower Court Proceedings The origin of this action begins with an action filed in Noxubee County Circuit Court in ROA It involved a vehicle collision whereby injuries were sustained by a certain minor, Tamarcus Ewing, and his mother. ROA.719. The mother passed as a result of her injuries. ROA.718. The case was filed in Noxubee County Court on or about March, 2002, with a cause number of ROA.719. The complaint was amended on or about June 10, ROA All record references from this point forward will be referenced by ROA followed by a period, then the number ofreference from the record. Ex.: "ROA.123" 8

10 A settlement was reached between the parties in December, ROA.719. To complete the settlement, an estate was set up for the mother and the minor in Noxubee County Chancery Court. ROA.719. Tommy Ewing, the appellant and alleged father of the minor, was appointed to represent the minor for the settlement. ROA For an unstated reason, the matters were transferred to Lowndes County Chancery Court for finalization. ROA.720. Appellant signed the settlement documents and testified to the Court he read and understood all the terms of the settlement document. ROA.720, Hearing on Petition for Unredacted Copies of Any and All Settlement Documents at Page 7. The Lowndes County Chancellor approved the minor's settlement and the estate settlement for the deceased in November of2003, and sealed the contents of the settlement. ROA.720. In December of 2003, the Noxubee County Circuit Court entered a dismissal of the documents and ordered the matter sealed. ROA.720. Sometime afterwards, the Appellant was removed as guardian over the minor and the estate proceeds. ROA.720. This was done after allegations of mismanagement of funds against the Appellant. ROA.720. An attorney, the Honorable Roy A. Perkins, was appointed to oversee the settlement proceeds and safeguard them for the minor. ROA.720. On or about May 26, 2014 Appellant, still removed from the Minor's Estate, asked for unredacted settlement documents from the Lowndes County Chancery Clerk. The Clerk denied this request. ROA.726. Subsequently, Appellant filed suit on or about July 14,2014 for the settlement documents, naming the Lowndes County Chancery Clerk and Roy A. Perkins, Jr. as respondents and parties to the action. ROA.718. The suit alleged Appellant was entitled to the settlement documents because "he needed a copy of 9

11 them" and he "doesn't know what is in them" because "his attorneys did not provide him with anything." ROA.721. A hearing was held on the matter on September 23,2014. ROA.729. At the hearing, the Court determined the Lowndes County Chancery Clerk was not a proper party, the Appellant did not have standing, and the Court acknowledged the Appellant testified he read the documents and signed them. Hearing on Petition for Unredacted Copies of Any and All Settlement Documents Pages 1-8. On September 29, 2014, he Court entered an Order dismissing the matter for the above stated reasons. ROA

12 SUMMARY OF THE ARGUMENT The Appellant failed to properly address the party with control of this action. The Lowndes County Chancery Court sealed the records sought by the Appellant, not the Court's Clerk. The Clerk has no power to unseal the records, and would be in direct contempt of a lawful order if she did so. The Appellant has no standing to bring the original action or this appeal. The Appellant was removed from the estate, and lost all semblances of any standing when he was removed. He has no colorable interest in the action, and has suffered no damages as a result of the sealing of these records. Even if the Chancery Clerk were a proper party (she is assuredly not), the Appellant failed to follow the guidelines of the Mississippi Tort Claims Act. There is no Tort Claims Notice in the official record, and there was never one filed. Such lack of notice is fatal to the Appellant's original action. Appellant is pursing this appeal as a frivolous action. Appellant is aware or should be aware this appeal is filed with no basis in law or fact. Such efforts constitute breaches of the Mississippi Litigation Accountability Act and Rule 38 of Miss. R. App. P. 11

13 ARGUMENT J The Chancery Clerk is Not a Proper Party The Lowndes County Chancery Clerk is not a proper party to the complaint. As stated by the Court, the Court sealed the records and settlement agreement, not the Clerk. The Clerk, at all times, was abiding by the Order of the Court, and does not possess the power to unseal the documents. Only the Court, and the Court alone, has the power to unseal the records. Appellee is bound to keep the records sealed by order of the Court until the Court orders otherwise. The Court entered an order sealing the transcripts, binding the parties to the terms of that order. Protecting that order and its contents is the hallmark ofthe judicial process. A court has the inherent power to impose sanctions in order to protect the integrity of the judicial process. Barrett v. Jones, Funderburg, Sessums, Peterson & Lee, LLC, 27 So. 3d 363 (Miss. 2009). Miss. R. Civ. P. Rule 70(a) gives the Court power to order specific acts, and Miss. R. Civ. P. Rule 70( d) gives the power of contempt to Courts to enforce those acts. Anything in contradiction to the Order would undermine the Court's authority, and run afoul ofthe Rules of Court, and the sanctity of the judicial process. The Chancery Clerk could not tum over the sealed file because it was under a direct, lawful order to keep the file sealed. Doing anything to the contrary would put the Chancery Clerk in contempt of that lawful order. Such contempt would be particularly egregious in this matter because it would be the Clerk's office ofthe Court defying its Court's own order. 12

14 II Appellant Lacks Standing to Maintain This Action and Appeal The Appellant does not possess standing to bring the Complaint. The Appellant was removed from the Estate of the minor. When he was removed, he lost standing to bring such an action. Such lack of standing makes his complaint ineligible for adjudication. The Appellant makes no valid argument for standing to bring this action. Standing to sue exists if a party asserts "a colorable interest in the subject matter of the litigation or "experience[ s] an adverse effect from the conduct ofthe defendant or as otherwise authorized by law." Hall v. City of Ridgeland, 37 So. 3d 25, 33, ~24 (Miss. 2010); City of Belmont v. Mississippi State Tax Com'n, 860 So. 2d 289, 296,,-r13 (Miss. 2003); Harrison County v. City of GulfPort, 557 So. 2d 780, 782, 59 Ed. Law Rep. 247, 17 A.L.R.5th 974 (Miss. 1990); Moore v. Marathon Asset Management, LLC, 973 So. 2d 1017 (Miss. Ct. App. 2008); Tolbert v. Southgate Timber Co., 943 So. 2d 90, 93 (Miss. Ct. App. 2006). The Supreme Court has noted that '" [c]olorable,' when used to describe a claim or action, means 'appearing to be true, valid or right. '" Hall v. City of Ridgeland, 37 So. 3d 25, 33, ~24, fn. 6 (Miss. 2010), quoting from Schmidt v. Catholic Diocese of Biloxi, 18 So. 3d 814, 827 fn. 13 (Miss. 2009). A party must be able to show that it has "a present, existent actionable title or interest." Kinney v. Catholic Diocese of Biloxi, Inc., 142 So. 3d 407, 413 (~14) (Miss. 2014); In re City of Biloxi, 113 So. 3d 565, 570 (~13) (Miss. 2013) (quoting City of Picayune v. Southern Regional Corp., 916 So. 2d 510, 526 (~40) (Miss. 2005)). The same standard has been held to apply for standing to appeal. Posey v. Pope, 130 So. 3d 1183, (~8) (Miss. Ct. App. 2014). Put simply, the 13

15 Appellant must prove some sort of colorable interest or injury to bring the matter. In the case, sub judice, the Appellant has failed to do so. The Appellant has provided no facts or authority to justify his position of standing. The Appellant was removed after a hearing from the minor estate, and the only nexus with this matter is an alleged blood kinship with the minor. The Appellant's only argument for standing is he does not know what was contained in the settlement documents. He makes no excuse for being removed, makes no legal argument for standing, and fails to show illustrate why this Court should compel disclosure other than his own poor record keeping. This Court should deny this appeal because the appellant has failed to show any title or interest. He has an alternative remedy for his claimed action, by getting a copy of everything from his attorneys. The appellant made some attempt to do this, but stopped after the attorneys informed him the Court would have it. The Supreme Court and the Mississippi Bar Association provide a remedy for this. Miss. R. Prof Conduct Rule 1.16( d) provides an avenue for an alleged party to get its files. This is memorialized in MSB Ethics Opinions Nos. 49 and 105. As such, the Appellant's only recourse is through his attorney, not the Court system, through this action. Consequently, this Court should find the Appellant has no standing to bring this action. The Appellant is not an executor of the estate, does not have an interest in the estate, and presents no arguments for this Court to find standing on his behalf. This Court should dismiss the appeal, or in the alternative, affirm the decision of the Trial Court. 14

16 III Appellant Failed to Follow the Mississippi Tort Claims Act Plaintiffs did not follow the proper procedure under the applicable Tort Claims Law in serving process upon the Lowndes County Chancery Clerk. Since there was a failure to follow proper statutory, the Appellant cannot maintain this action. Appellant did not follow the statutory procedure for serving process upon the Lowndes County Chancery Clerk. Miss. Code Ann (2)( a)(ii) specifically states how the Department must be served. That section reads, "If the governmental entity to be sued is a state entity as defined in Section (j), or is a political subdivision other than a county or municipality, service of notice of claim shall be had only upon that entity's or political subdivision's chief executive officer. The chief executive officer of a governmental entity participating in a plan administered by the board pursuant to Section (3) shall notify the board of any claims filed within five (5) days after receipt thereof." Id. (emphasis added). Since the Lowndes County Chancery Clerk is a governmental entity and is being sued as something other than a county or the State, the Clerk falls under this provision of the law. In addition to this requirement, the statute must follow strict compliance before it is recognized as a valid cause of action. Burge v. Richton Municipal Separate School Dist., 797 So.2d 1062 (Miss. Ct. App. 2001). Most recently in Benvenuti v. McAdams, the Court has recognized the Tort Claims Act as applying to Chancery Clerks. 162 So.3d 808 (Miss. 2015). Under the Tort Claims Act, a statutory notice is required. The Appellant failed to file the appropriate Tort Claims Notice as mandated by Miss. Code Ann (l). Neither notice was filed, nor was one attempted, as designated in the record. Such a failure is detrimental to the Appellant's complaint. The 15

17 notice-of-claim requirement, which is jurisdictional, "imposes a condition precedent to the right to maintain an action." Miss. Dep't of Pub. Safety v. Stringer, 748 So.2d 662, 665 (Miss. 1999) (quoting Carr v. Town of Shubuta, 733 So.2d 261, 265 (Miss. 1999) (internal quotation marks omitted)). The Mississippi Supreme Court has held that "the ninety-day notice requirement under [S]ection (1) is a hard-edged, mandatory rule which the Court strictly enforces." See Univ. of Miss. Med. Ctr. v. Easterling, 928 So.2d 815,820 (Miss.2006). Such a failure to follow these requirements should provide this Court with ample reason to affirm the lower Court's dismissal of the Complaint. Consequently, the Appellant has run afoul of the Mississippi Tort Claims Act. Non-compliance of such requirements should be detrminental to the Appellant's position, leading this Court to affirm the lower Court's decision. Appellee respectfully requests this Court dismiss the appeal or, in the alternative, affirm the lower Court's ruling. IV. Appellant is Engaging in a Frivolous Appeal Appellant has engaged in a frivolous appeal and should be subject to the provisions of the Mississippi Litigation Accountability Act. This appeal is made without merit or any substantial justification. As a result, this Court should award attorney's fees and costs to the Appellee for having to defend such. The Appellant was warned at the trial level about his absent legal standing, suing the wrong party, and improper representations. Such actions qualify this appeal as a meritless action. Miss. Code Ann provides authority to discourage meritless actions, and extend such authority to appeals. Balius v. Gaines, 95 So.3d 730 (Miss. 2012). This court should find this action qualifies under the authority, and award attorney's fees to the Appellee. Additionally, the Court has the authority to award 16

18 damages for frivolous appeals under Miss. R. App. P. Rule 38. Under this Rule, the Court has established a test for what constitutes a frivolous appeal as: "An appeal is frivolous, so as to warrant imposition of sanctions, when, objectively speaking, the appellant has no hope of success." McGriggs v. State, 2012, 117 So.3d 626, rehearing denied, certiorari dismissed 117 So.3d 330. Under the current facts, the Appellant has no hope of success, and the record reflects such. Appellant knew or should have known this appeal is frivolous from the statements of the Court at the lower level. The Trial Court held a sua sponte hearing on the matter because it was the errors of the complaint were so egregious. Additionally, the Trial Court did everything but warn the Appellant in regards to his lack of legal authority and facts to pursue the action. The Court even stated the correct avenue for the Appellant to pursue to achieve his goal. The Appellant disregarded such instructions and pursued this matter without any facts or law for justification. Appellant knows or should know he has no chance of success in this matter. CONCLUSION The Lowndes County Chancery Court sealed the records sought by the Appellant, not the Court's Clerk. The Clerk has no power to unseal the records, and would be in direct contempt of a lawful order if she did so. The Appellant has no standing to bring the original action or this appeal, and provides the Court with no colorable interest in the action, and has suffered no damages as a result of the sealing of these records. The Appellant failed to follow the guidelines of the Mississippi Tort Claims Act. Such failure is fatal to the Appellant's original action. Finally, Appellant is aware or 17

19 should be aware this appeal is filed with no basis in law or fact, filed in direct violation of the Mississippi Litigation Accountability Act and Rule 38 of Miss. R. App. P. Respectfully Submitted, Lisa Younger Neese Lowndes County Chancery Clerk By: Sims & Sims, LLC By: IslCourtney B. "Corky" Smith (MSB# ) Certificate of Service I, COURTNEY B. SMITH, do hereby certify on this date I have sent a true and correct copy of the above motion to the following by way of the Mississippi Electronic Courts: Roberta Haughton Attorney for the Petitioner Roy A. Perkins Trial Court Respondent Judge Dorothy Colom Trial Court Judge SO CERTIFIED on this the 16TH rd day of December, 2015 IslCourtney B. "Corky" Smith 18