Rose v. Tullos
| Docket Number: | 2007-CA-01028-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 11-13-2008 Opinion Author: Smith, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Malicious prosecution - Litigation Accountability Act - Section 11-55-5(1) - M.R.C.P. 11 Judge(s) Concurring: Waller and Diaz, P.JJ., Easley, Carlson, Dickinson, Randolph and Lamar, JJ. Concurs in Result Only: Graves, J. Procedural History: Dismissal Nature of the Case: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 05-11-2007 Appealed from: SMITH COUNTY CIRCUIT COURT Judge: Isadore Patrick Disposition: The Circuit Court of Smith County granted Tullos’s motion to dismiss for failure to state a claim upon which relief could be granted. Case Number: 2006-153 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Julian Rose, M.D. |
Drew Martin |
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| Appellee: | Eugene Tullos | G. David Gamer | ||
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: | Malicious prosecution - Litigation Accountability Act - Section 11-55-5(1) - M.R.C.P. 11 |
| Summary of the Facts: | Julian Rose, M.D., filed suit against attorney Eugene Tullos for malicious prosecution, civil abuse of process, and violations under the Litigation Accountability Act. The court granted Tullos’s motion to dismiss, and Rose appeals. |
| Summary of Opinion Analysis: | Section 11-55-5(1) of the Litigation Accountability Act states that a claim for attorney’s fees and costs in any civil action must be brought upon motion of any party or on its own motion. A plain reading of the statute creates no separate cause of action for a violation of the Litigation Accountability Act. There is no conflict between M.R.C.P. 11 and section 11-55-5. With regard to the malicious prosecution action, Tullos, acting as attorney for the party suing Rose in the first place, was not the proper party against whom to bring this action. Rose argues that Tullos’s failure to withdraw from the suit constitutes malicious prosecution. However, no continuing duty exists to force an attorney to abandon a claim if it later appears to be without merit. In addition, there is nothing in the record that indicates Tullos was filing suit on behalf of his client without a reasonable basis. |
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