Byrd, et al. v. Bowie, et al.
| Docket Number: | 2005-IA-00321-SCT Linked Case(s): 2005-IA-00321-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 04-06-2006 Opinion Author: Smith, C.J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Legal malpractice - Request for admissions - Negligence - Motion to stay - Motion to disqualify attorney Judge(s) Concurring: Waller, P.J., Carlson, Dickinson and Randolph, JJ. Judge(s) Concurring Separately: EASLEY, J. CONCURS IN PART JOINED BY GRAVES, J. Non Participating Judge(s): Cobb, P.J., and Diaz, J. Concur in Part, Dissent in Part 1: Easley, J. Concur in Part, Dissent in Part Joined By 1: Graves, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - LEGAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 01-27-2005 Appealed from: RANKIN COUNTY CIRCUIT COURT Judge: Samac Richardson Disposition: Granted partial summary judgment in favor of Appellee but denied Appellee's other motions Case Number: 2004-84-R |
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| Note: | Nature of the Case: Legal Malpractice | |
| Party Name: | Attorney Name: | |||
| Appellant: | ISAAC K. BYRD, JR., KATRINA M. GIBBS, AND
BYRD, GIBBS & MARTIN, PLLC f/k/a BYRD &
ASSOCIATES, PLLC |
PRECIOUS TYRONE MARTI |
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| Appellee: | WILLIE J. BOWIE, INDIVIDUALLY, AND CHARLES BROWN, INDIVIDUALLY, BEING THE SOLE WRONGFUL DEATH BENEFICIARIES OF LOIS BROWN, DECEASED | EDDIE JACOB ABDEEN, STEPHEN LAMAR GOWAN |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Legal malpractice - Request for admissions - Negligence - Motion to stay - Motion to disqualify attorney |
| Summary of the Facts: | In Bowie v. Montfort Jones Memorial Hospital, 861 So. 2d 1037 (Miss. 2003), the Supreme Court affirmed summary judgment in favor of Montfort Jones Memorial Hospital. The trial court determined that the plaintiffs, Bowie and Brown, failed to timely designate an expert for their medical malpractice claim; therefore, summary judgment was granted because Bowie could not make a prima facie medical malpractice case without this expert. The attorneys representing Bowie were Katrina M. Gibbs and Isaac K. Byrd. Following the ruling in Bowie, Bowie filed a legal malpractice case against Gibbs, Byrd, and Byrd, Gibbs and Martin, PLLC, f/k/a Byrd & Associates, PLLC. The first amended complaint was filed on April 29, 2004. On May 8, 2004, Gibbs was served with process. On May 10, 2004, Christy Hall, Byrd’s secretary, was served with process for Byrd and the Firm. On June 8, 2004, Gibbs, Byrd and the Firm filed a joint Answer. On October 19, 2004, Bowie filed a motion for partial summary judgment claiming, inter alia, that the defendants failed to respond to requests for admissions. The defendants filed a response to the motion for partial summary judgment, a motion for disqualification of Attorney Eddie Abdeen (counsel for Bowie), a motion to stay proceedings, and a motion to withdraw default responses to plaintiff’s first set of requests for admissions. The trial court granted the plaintiff’s motion for partial summary judgment on the issue of negligence; denied the motion to stay; denied the motion to disqualify Abdeen; and denied the motion to withdraw default responses to plaintiff’s first set of requests for admissions. In the order, the trial court also granted certification for an interlocutory appeal on the rulings of the four motions. The Supreme Court granted the interlocutory appeal. |
| Summary of Opinion Analysis: | Issue 1: Request for admissions The trial court found the defendants were served with process concerning the request for admissions and denied the motion to set aside admissions. The defendants argue the court erred by denying the motion to withdraw default responses to requests for admissions, because they never received the request for admissions. During the hearing, a number of witnesses testified about the issue of receipt of the requests for admissions. Gary Windham, the process server, stated that he served Gibbs personally, and served Christy Hall, Byrd’s secretary. The preprinted proofs of service signed by Windham showed that the summonses, amended complaint, interrogatories and requests for admissions were served. The proofs of service were completely typed, unlike the summonses. There was no handwritten addition concerning the requests for admissions on the returns. An e-mail, dated May 13, 2004, from Abdeen to Suzanne Keys, an attorney that worked for the Byrd Firm, contained attachments which included the requests for admissions, which were also discussed in the text of the email. The correspondence between Keys and Abdeen reflects notice to the defendants. The evidence reasonably supports the grant of summary judgment on the issue the defendants’ negligence based on the defendants’ failure to respond to plaintiff’s request for admissions. Issue 2: Negligence Notwithstanding the defendants’ failure to properly respond to Bowie’s request for admissions, the defendants were negligent as a matter of law. An attorney who fails to designate an expert by a court-mandated deadline and does not provide any reason for doing so, is negligent as a matter of law. Therefore, Bowie is entitled to partial summary judgment as to the defendants’ liability. Issue 3: Motion to stay The defendants argue the trial court erred by denying a motion to stay, because their legal malpractice insurance carrier, American National Lawyers Insurance Reciprocal, was placed into liquidation and Bowie’s suit would have a direct and substantial adverse effect on the insurance company’s ability to undergo a successful liquidation. The liability insurance firm, ANLIR, is not protected by Mississippi law. In addition, no automatic stay is provided to any policy holders of ANLIR. As such, the trial court correctly ruled to deny the motion to stay. Issue 4: Motion to disqualify The defendants argue that Abdeen, the attorney of record for Bowie and Brown in the legal malpractice case, may be called as a witness at trial because he stated in an affidavit that he had personal knowledge of the facts in the case. The record is clear that Abdeen had no knowledge of the underlying case. He merely had an e-mail exchange with an employee of the Firm, Keys, which occurred after Gibbs, Byrd, and the Firm were served with process. Abdeen had no personal knowledge of the underlying Bowie case which led to the filing of a legal malpractice case against the defendants. |
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