Brumfield v. Mississippi State Bar Ass'n, 173

• Decision Date: 10 September 1986
• Docket Number: No. 173,173
• Parties: H. Alva BRUMFIELD, III v. MISSISSIPPI STATE BAR ASSOCIATION. Misc.
• Court: Mississippi Supreme Court

Page 800

497 So.2d 800

H. Alva BRUMFIELD, III v. MISSISSIPPI STATE BAR ASSOCIATION.

Misc. No. 173.

Supreme Court of Mississippi.

Sept. 10, 1986.

Rehearing Denied Dec. 3, 1986.

Nicholas Van Wiser, Rushing & Guice, Biloxi, for appellant.

Andrew J. Kilpatrick, Jr., Jackson, for appellee.

Before HAWKINS, P.J., and PRATHER and SULLIVAN, JJ.

HAWKINS, Presiding Justice, for the Court:

H. Alva Brumfield, III, a Louisiana resident admitted to the Mississippi Bar, has appealed a decision of a complaint tribunal suspending him from the practice of law in this State for a period of ninety days. The Mississippi State Bar has cross-appealed complaining the conduct of Brumfield justifies disbarment.

We find no merit in Brumfield's appeal. We do find merit in the Mississippi State Bar's appeal and direct Brumfield be permanently disbarred.

FACTS

Julie Bertha Pigott Brumfield died intestate in 1964, the fee simple owner of 36 acres of land in Walthall County. In her family Mrs. Brumfield had the nickname "Dabba." She left surviving her as her sole heirs-at-law three daughters and two sons, namely: Elizabeth Brumfield Allemandi (Mrs. Allemandi), Mrs. Lucy Brumfield Handley (Mrs. Handley), Georgia Rae Brumfield Davis (Mrs. Davis), Bert C. Brumfield and H. Alva Brumfield II. Among the children Mrs. Allemandi was known as "Lib," Alva Brumfield as "Al," and Bert Brumfield as "Bert." Alva Brumfield was a practicing attorney in Baton Rouge, who died in 1974. His three children were William P. Brumfield, H. Alva Brumfield, III, and Julia Scott Brumfield Simms, who, upon his death inherited his one-fifth interest in the realty. Bert Brumfield, resident of Baton Rouge, died in January, 1979, leaving as his sole heir-at-law his widow Billie Scott Brooks Brumfield. William P. Brumfield and Alva Brumfield, III, practiced law together in Baton Rouge. Among the family Alva Brumfield, III, had the nickname "Beau."

Thus, in August, 1979, the three daughters and Bert Brumfield's widow, Mrs. Billie Brumfield, each owned an undivided one-fifth interest in the realty, and the three children of Alva Brumfield II each owned an undivided one-fifteenth interest in the land.

During their lifetimes the two sons of Mrs. Julia Brumfield apparently paid the taxes on the realty. None of the daughters had anything to do with the land.

John Clifton Barrett, Jr., was a dentist in Tylertown. On August 3, 1979, he made a telephone call not exceeding one minute to Alva Brumfield, III, and on August 6, 1979, he made a three minute telephone call to Brumfield. In one of these conversations he offered Brumfield $700 per acre for the land. Brumfield told him he would take the matter under consideration and would talk to the others interested. In his direct examination before the Tribunal, Barrett testified Brumfield told him he would "take it under consideration and advise his clients." On cross-examination he conceded he was "not particularly familiar with the proper legal terminology of client or representative or whatever in this context, but I was under the impression he was representing himself and others." [Vol. II, p. 201]

On August 10 Barrett telephoned Brumfield at which time they talked for several minutes. Brumfield informed Barrett he had been unable to contact the other interested parties.

On August 6 Brumfield wrote the following letter to Mrs. Allemandi:

August 6, 1979

Mrs. Elizabeth B. Allemandi

5657 Byron Nelson Drive

Arlington, TX 78550

Dear Lib:

I received an offer for the property which Dabba owned in Walthall County in which you own a 1/5 interest for $450.00 an acre, or $3,240.00 cash.

We discussed this at the time of Bert's funeral, but I neglected to follow through on it.

I told Billie Scott I would use Al's portion to pay Bert's funeral expenses, which I will do.

I would think that we should sell the property. If this is agreeable with you, I would appreciate your calling me. I do not think my address for Lucy and Georgia Rae is good. If you could ask them and advise me, I will take care of the documentation.

I am sorry I have not written sooner but Rosemary and two of the boys have been very sick and I have been quite busy. I enjoyed your's [sic] and Paul's visit but am sorry it had to be under tragic circumstances. Let me know when ya'll are coming back through on the way to Florida and please stay overnight with us.

Love,

s/Beau

On August 13 Brumfield wrote Mrs. Allemandi the following letter:

August 13, 1979

Mrs. Elizabeth B. Allemandi

5657 Byron Nelson Drive

Arlington, TX 78550

Dear Lib:

Rosemary said ya'll would be through at Christmas. We may spend Christmas at Gulf Shores, but in any event, you can lay over on the beach or at the house.

I enclose my check to you for $3240.00. Please take the Warranty Deed and execute the same before the appropriate notary and return to me. I don't have the right address for Lucy or Georgia Rae. If you would furnish that to me, I will forward them their documents and checks.

Love,

s/Beau

As he stated in the letter, he enclosed his personal check for $3,240, dated August 14, payable to Mrs. Allemandi, and proposed warranty deed for her to sign.

On August 18, 1979, Mrs. Allemandi wrote Brumfield the following letter in longhand:

Dear Beau,

I received the check and documents and will return them to you as soon as I go to an attorney. I just have one question if the sale was divided by 5--does Billie Scott get Bert's 1/5? We certainly appreciate your taking Al's share to defray Bert's funeral expenses. If Billie Scott doesn't receive that 1/5, shouldn't it be divided among the remaining heirs?

Listed below are the addresses:

Mrs. W. M. Handley (Lucy)

808 Alba Drive

Orlando, Florida 32804

Mrs. L. L. Davis (Georgia)

327 Rolling Hills Drive

Conroe, Texas 77301

The Handley's [sic] are going to see Tuffy next month in Belgium. He is now a Lt. Col.

Thanks again for every thing.

Love to all,

s/Lib On August 27 Mrs Allemandi executed the warranty deed conveying her entire interest in the realty to Brumfield, with no reservations or exceptions, which she mailed to him.

On August 27 Brumfield wrote the following letter to Mrs. Davis:

August 27, 1979

Mrs. L. L. Davis

327 Rolling Hills Drive

Conroe, Texas 77301

Dear Georgia Rae:

I understand Lib has talked to you concerning the selling of your one-fifth interest in the land Dabba left in Mississippi. I enclose my check to you for $3,240.00 and a Warranty Deed, and I would ask that you execute the Deed before a Notary Public and then send it to me.

I get to Houston occasionally and would like to come by and see everyone. I was there several months ago and thought I saw Leroy. I went up to say hello and found out it was not him but an IRS agent who was very affronted that he was being approached and greeted on the street. I'll probably get my taxes audited as a result thereof. I certainly would like to see everyone the next time around.

Love to all

s/Beau

In his letter Brumfield enclosed a personal check for $3,240.00 and a proposed warranty deed. On August 30 Mrs. Handley executed the deed.

On September 24 Mrs. Billie Brooks Brumfield executed a warranty deed for her entire interest, for which she received a personal check from Brumfield dated the same date for $1,027.68. In this payment Brumfield deducted Bert Brumfield's funeral expenses due Ravenhorst Funeral Home in Baton Rouge in the amount of $2,212.32, which he had paid by check dated August 22, 1979.

Just as in Mrs. Allemandi's warranty deed, the others conveyed their entire interest in the realty with no reservations or exceptions. All deeds were filed for public record in the chancery clerk's office of Walthall County on September 26, 1979.

On October 16, 1979, Brumfield executed an oil and gas lease on the realty to B.P. Tillery of Laurel, for the bonus rental of $500 per acre. On the same date his sister and brother likewise each executed an oil and gas lease to Tillery. Preceding in the execution of these leases there had been telephone conversations between Tillery and Brumfield.

On November 30, 1979, following his employment to make an appraisal of the property by Brumfield, Doug Rushing of Tylertown wrote Brumfield the land was worth $1,000 per acre, including the timber thereon, which he valued at $16,000.

Mrs. Allemandi and her husband Paul had their suspicion aroused, so their Texas attorney contacted Dan Wise, attorney in Hattiesburg. Wise made an investigation, contacted Tillery, and on November 13, 1979, filed a bill of complaint on behalf of Mrs. Allemandi and Mrs. Handley in the chancery court of Walthall County to set aside the deeds of Brumfield, establish a constructive trust between Brumfield and the grantors as to any oil and gas proceeds, and for an accounting. On November 29, 1979, an amended bill was filed by all three sisters, asking for the same relief as the original bill. Both bills charged Brumfield with fraud in procuring the deeds.

Prior to trial all the grantors tendered the purchase price Brumfield had paid them for the land.

Following a trial, the chancellor rendered a final decree on November 17, 1981, finding there was a fiduciary relationship between Brumfield and the four grantors, and that he had defrauded them, and directing that Brumfield reconvey the interest acquired from the three sisters and Mrs. Billie Brooks Brumfield back to them, and awarded judgment to each of them against Brumfield for $3,600.00 totaling $14,400, the amount Brumfield had received in bonus rental under the oil and gas lease for their interest.

Brumfield appealed to this Court, and we affirmed without an opinion on September 7, 1983.

On July 11, 1984, the Mississippi State Bar filed a complaint against Brumfield. Although Brumfield is a Louisiana citizen, he held a license to practice law in Mississippi, and was a member of this State's Bar.

The complaint charged violation of Disciplinary Rules of the Code of Professional Conduct DR 1-102 (A)(1, 4 and 6)...