Cook v. Wallot
| Citation | 172 So.3d 788 |
| Decision Date | 07 May 2013 |
| Docket Number | No. 2011–CA–01056–COA.,2011–CA–01056–COA. |
| Parties | Henry J. COOK, III, Appellant/Cross–Appellee v. Dennis A. WALLOT, James Durkin, Jeffrey A. Roy, James M. Sims, Boyd L. Barclay, Delbert E. “Bulldog” Turner, John H. Agenbroad, Alvin W. Flyr, William A. Wroolie, Alfred J. Silvano, Frank A. Athanason, R. Louis Spinelli, Frederick A. Taylor, Jr., Daniel J. Murphy, Clayton D. Jones, John P. Leonard, Military Order of the Purple Heart Service Foundation, Inc. and Military Order of the United States of America, Inc., Appellees/Cross–Appellants. |
| Court | Mississippi Court of Appeals |
Harry B. Ward, Henry J. Cook III, attorneys for appellant.
Jonathan Paul Dyal, Gulfport, C. Randolph Sullivan, Norman Gene Hortman Jr., Laurel, Richard I. Kovelant, April Crane Ladner, Laurel, attorneys for appellees.
EN BANC.
IRVING, P.J., for the Court:
¶ 1. After being expelled from membership in the Military Order of the Purple Heart (MOPH), Henry J. Cook III filed a complaint in the Hancock County Circuit Court, alleging claims of civil conspiracy, retaliation, breach of fiduciary duty, and defamation against the MOPH, the Military Order of the Purple Heart Service Foundation (Service Foundation), and several of the organizations' officers and directors (the individual defendants).1 Cook also moved to disqualify the law firm Hunton & Williams, which represented the MOPH and the individually named officers and directors, due to an alleged conflict of interest.
¶ 2. The circuit court dismissed Cook's complaint under Mississippi Rule of Civil Procedure 12(b)(6) for the failure to state a claim upon which relief could be granted. It also found that Cook's motion to disqualify Hunton & Williams was without merit. We likewise find that Cook has failed to state a claim upon which relief can be granted and affirm.
¶ 3. We also must address two other matters raised in this appeal. First, the individual defendants have filed a cross-appeal, arguing that if Cook prevails on appeal, they should nonetheless be dismissed because the circuit court lacked personal jurisdiction. It is unnecessary to address this issue since we find no merit to Cook's issues on appeal. Thus, the cross-appeal is dismissed as moot.
¶ 4. Second, the Service Foundation has moved to dismiss the appeal as it relates to the Service Foundation because Cook's notice of appeal was untimely filed. We agree that the notice of appeal from the order dismissing the Service Foundation was untimely, and we grant the Service Foundation's motion.
FACTS
¶ 5. The MOPH is a congressionally chartered corporation that provides assistance for combat-wounded veterans. It receives its funding from the Service Foundation. The Service Foundation collects charitable donations and distributes them to various veterans programs. Cook was national commander of the MOPH from August 2007 to August 2008, and, at all times, was a member of the Diamondhead, Mississippi chapter of the MOPH. He began an investigation in 2007 of the Service Foundation's alleged mismanagement of charitable contributions.
¶ 6. Cook's allegations against the Service Foundation received national media attention. Some confusion arose as to which organization had mismanaged the contributions. An image of Cook appeared in the media with an “F” stamped on his face after the American Institute of Philanthropy gave the Service Foundation an F rating. On November 9, 2007, Cook had the MOPH issue a press release to clarify that the MOPH and the Service Foundation were distinct organizations. The press release, which was copied in the complaint, quoted Cook as saying: The press release went on to clarify that “[m]any charitable veterans programs are funded by the Service Foundation, of which[ ] MOPH is only one.”
¶ 7. On April 18, 2008, Dennis Wallot and three additional members of MOPH's National Finance Committee filed a grievance against Cook. Their grievance asserted that Cook had violated multiple provisions of the MOPH's bylaws, including improperly seizing and commingling the MOPH Life Membership Fund. However, Cook argues that the grievance was nothing more than an act of retaliation for his whistle-blowing. Further, Cook argues that the defendants themselves had unclean hands because they were in violation of the corporate bylaws for failing to follow procedure in filing the grievance—such as having detailed facts in writing, having documents signed and notarized, and having three impartial individuals to review the matter. Cook also argues that the bylaws did not allow for a grievance and/or discipline against the national commander, the position he held until August 16, 2008.2
¶ 8. The grievance against Cook was handled by Jeffrey Roy, then-senior vice commander and Cook's soon-to-be successor as national commander. In June 2008, Roy issued a cease-and-desist letter to the MOPH national inspector and the MOPH National Investment Audit Committee to stop their investigations of the Service Foundation. According to Cook, the investigations that were conducted until that point had confirmed the results of Cook's investigation.
¶ 9. On July 21, 2008, Cook filed disciplinary charges against Roy for unlawfully interfering with the investigation and for improperly filing a grievance against him. Cook also filed disciplinary charges against Wallot—one of the individual defendants—for misappropriating funds and for failing to disclose to the MOPH national membership that he had been previously censured by the securities industry.
¶ 10. After Roy became national commander, three other of the individual defendants recommended that the MOPH expel Cook from its membership. Roy did not expel Cook, but suspended him and advised him not to participate in any MOPH activities. However, Cook continued to communicate with MOPH members, encouraging them to attend the funerals of other Purple Heart recipients and inquiring if any members were attending a funeral in Arlington National Cemetery. Cook also contacted Roy when it came to Cook's attention that a MOPH member was a convicted sex offender.
¶ 11. At this point, Roy notified Cook that his suspension precluded him from being involved in MOPH affairs, and because he was in violation of his suspension, disciplinary action would be taken. Before any action was taken against Cook, Roy's term as national commander ended, and he was succeeded by James M. Sims, also an individually named defendant. Sims initiated the disciplinary action against Cook that ultimately led to Cook's expulsion from the MOPH.
¶ 12. On August 2, 2010, Cook filed a complaint in the Circuit Court of Hancock County against the MOPH, the Service Foundation, and the individual defendants. Cook raised the following counts: (1) civil conspiracy; (2) unlawful retaliation; (3) defamation; (4) breach of fiduciary duty; and (5) unlawful acts in violation of the MOPH's corporate charter and bylaws. As injuries, Cook alleged that he was stripped of his MOPH lifetime-membership status, his right to funeral arrangements usually given to recipients of Purple Heart Medals, his office in the local Diamondhead chapter, and his paid-for lifetime subscription to Purple Heart magazine. He also claimed emotional distress and damage to his reputation because Sims had publicly called him “dishonest” and an “[expletive] crook.” Finally, Cook moved to disqualify Hunton & Williams—the law firm that represented the individual defendants and the MOPH—due to an alleged conflict of interest.
¶ 13. The MOPH moved to dismiss Cook's complaint under Mississippi Rule of Civil Procedure 12(b)(6). The Service Foundation joined this motion. The individual defendants moved to dismiss the complaint against them for lack of personal jurisdiction under Mississippi Rule of Civil Procedure 12(b)(2), claiming they were not Mississippi residents and had not committed any acts against Cook in this State.
¶ 14. A hearing was held on May 10, 2011, to address the defendants' motions to dismiss and Cook's motion to disqualify Hunton & Williams. On May 18, 2011, the circuit court granted the Service Foundation's motion to dismiss. On May 31, 2011, the court granted MOPH's motion to dismiss as to Counts II and III—retaliation and defamation. The remaining issues were taken under advisement. On June 16, 2011, the individual defendants moved to join the MOPH's motion to dismiss. On June 24, 2011, the circuit court denied Cook's motion to disqualify Hunton & Williams and the individual defendants' motion to dismiss for lack of personal jurisdiction. Also, on June 24, 2011, the circuit court granted the MOPH's Rule 12(b)(6) motion to dismiss as to Cook's remaining claims and dismissed Cook's complaint in its entirety, which included his claims against the individual defendants. Since all defendants had been dismissed at this point, Cook filed a notice of appeal.
¶ 15. Cook's raises the following issues on appeal: (1) the complaint stated a claim upon which relief may be granted and should not have been dismissed; (2) Hunton & Williams should have been disqualified due to a conflict of interest; and (3) Hunton & Williams should have been disqualified because some of its employees were potential witnesses to contested matters in the litigation.
¶ 16. The individual defendants cross-appeal, asserting that the circuit court erred in denying their motion to dismiss for lack of personal jurisdiction. Also, the Service Foundation asserts that Cook's notice of appeal from the circuit court's 12(b)(6) dismissal was untimely filed; thus, the appeal of this order should be dismissed.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶ 17. We must...
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