Hewes v. Langston

• Decision Date: 11 September 2003
• Docket Number: No. 1999-IA-00646-SCT.,1999-IA-00646-SCT.
• Citation: 853 So.2d 1237
• Court: Mississippi Supreme Court
• Parties: George P. HEWES, III and Brown & Williamson Tobacco Corporation v. Cynthia LANGSTON.

853 So.2d 1237

George P. HEWES, III and Brown & Williamson Tobacco Corporation v. Cynthia LANGSTON.

No. 1999-IA-00646-SCT.

Supreme Court of Mississippi.

September 11, 2003.

Michael W. Ulmer, William F. Goodman, Jr., Leah D. McDowell, Jr., Margaret Stewart Oertling, W. Wayne Drinkwater, and David W. Clark, Jackson, Lake Tindall, attorneys for appellants.

Teri Dunaway Gleason, and Jeffery P. Reynolds, Jackson, attorneys for appellee.

EN BANC.

ON MOTION FOR REHEARING

COBB, Justice, for the Court.

¶ 1. The motion for rehearing was denied in this case by order issued July 10, 2003. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. This is the second time this interlocutory appeal has been before this Court with the same issue for review. Attorney George P. Hewes, III and the Brown & Williamson Tobacco Corporation (B & W) seek review of orders by the Hinds County Circuit Court compelling them to provide attorney Cynthia Langston with a number of documents which they claim to be privileged.

¶ 3. For purposes of an in camera inspection by the trial court, the documents were divided into 68 numbered "Items,"¹ with some of the Items containing multiple documents. After the in camera inspection, the trial judge concluded that 38 of the Items were not discoverable, but ordered the remaining 30 Items to be turned over to Langston, finding "that the documents reviewed are relevant to the issues raised in Plaintiff's complaint and are therefore discoverable." From that order, Hewes and B & W sought and were granted permission to bring this interlocutory appeal. See M.R.A.P. 5.

¶ 4. Hewes and B & W subsequently withdrew their objection to Item 38, a letter and draft affidavit from Alan Perry (Hewes's original counsel in this action), to Richard Roberts, counsel for Mike Miller, Langston's ex-husband. Further, Item 23 is a chronology of events with numerous attachments. The trial judge concluded that the chronology of events, itself, was not discoverable but that the attachments to the chronology were discoverable. Hewes and B & W withdrew their objection to most of the attachments to Item 23, but maintained their objection to one of the letters that was part of the attachments, Item 23/Page 183. Thus on appeal, of the original 30 Items, there remain 29 at issue.

¶ 5. When this interlocutory appeal was first before us, we determined that the trial court's findings of fact and conclusions of law were insufficient for a meaningful review, and we remanded the case to the trial court to enter "findings of fact and conclusions of law regarding each of the twenty-nine items as to which discovery is now contested." After further findings by the trial court, this interlocutory appeal is now before us for a second time with the same issue for review:

DID THE CIRCUIT COURT ERR IN ORDERING HEWES TO PRODUCE TWENTY-NINE ITEMS OF PRIVILEGED MATERIALS?

¶ 6. To more effectively discuss this issue, we have divided this issue into the following subsections:

A. Application of the Attorney-Client Privilege, the Work Product Doctrine, and the Crime-Fraud Exception

B. The Trial Court's in Camera Review of the Materials at Issue

C. Findings of Fact and Conclusions of Law Regarding Each of the Twenty-nine Items as to which Discovery is now Contested.

¶ 7. Concluding that the trial court erred in determining that all of the 29 Items were discoverable, we reverse and remand.

FACTS

¶ 8. In 1996, Cynthia Langston served as counsel for the plaintiffs in Butler v. Phillip Morris, Inc., a wrongful death action filed in the Jones County Circuit Court against tobacco manufacturers. While that litigation was ongoing, Langston was in the process of divorcing her then husband, Mike Miller, who was a manager for BellSouth Telecommunications. Langston accused Miller of using his position at Bell-South to improperly access her telephone records. Langston further alleged that sometime before the divorce was finalized, Miller contacted George P. Hewes, III, an attorney with the law firm of Brunini, Grantham, Grower & Hewes, PLLC (the Brunini firm), which represented the tobacco companies, claiming to have proof of improper ex parte contact between Langston and Circuit Judge Billy Joe Landrum, the presiding judge in the tobacco case. Approximately one year later, the defendants in the tobacco case successfully pursued Judge Landrum's disqualification from that case.

¶ 9. Subsequently, Langston came into possession of a letter, written on the letterhead of the Phelps Dunbar, LLP law firm, that accused Hewes and two attorneys with Phelps Dunbar of communicating with Miller about Langston's private telephone conversations regarding the tobacco litigation. The letter was signed "haunted friend"; however, the attorney whose printed name appeared on the official stationery, by affidavit, denied any knowledge of or involvement in the production of the letter.

¶ 10. In June 1998, Langston filed the present suit in the Hinds County Circuit Court against BellSouth, B & W (and its parent corporations) and the Brunini firm, as well as Hewes and Miller individually, alleging negligence, conspiracy to invade privacy and negligent infliction of emotional distress. During discovery, Langston sought to compel Hewes to produce numerous documents which Hewes claimed were privileged. After reviewing the documents in camera, the trial judge concluded that thirty-eight of the Items were not discoverable, but thirty were, and ordered that they be produced. Hewes filed an interlocutory appeal, and the trial court stayed the order pending our review.

¶ 11. Because the trial judge's initial order requiring Hewes and B & W to produce the documents was general in nature and did not make findings of fact and conclusions of law as to why each of the Items were discoverable, this Court was unable to conduct a proper review. For that reason, we remanded this case to the trial court to complete that task.

¶ 12. On remand, the trial judge entered a six-page order which responded to our request. It contained a lengthy explanation of the facts and history of the case, and, generally, of the applicable law. However, we were not provided any specific explanation of the trial judge's basis for concluding why certain documents were discoverable and others were not. Having now reviewed the documents and trial judge's response, we reverse and remand.

STANDARD OF REVIEW

¶ 13. The application of privilege is properly a mixed question of law and fact, with the circuit court's factual findings reviewed for clear error and its interpretation of the law reviewed de novo. United States v. Neal, 27 F.3d 1035, 1048 (5th Cir.1994).

DISCUSSION

¶ 14. Prior to addressing the merits of this appeal, we first consider Langston's contention that the Governor should have appointed two special justices to participate in deciding this appeal. Justices Waller and Diaz elected not to participate in this case. In her motion for rehearing, Langston argues that under Article 6, Section 165 of the Mississippi Constitution the Governor should have appointed two special justices to hear the case, "to assure that the Court maintained a full complement of justices." One of these vacancies, that of Justice Diaz, was the result of Langston's choice of Richard F. Scruggs for representation in this case. Attached to her motion is a copy of a petition to the Governor urging these appointments for rehearing.

¶ 15. Certainly, under proper circumstances, the Governor may make appointments of special justices. Langston is incorrect, however, in her belief that any time fewer than nine justices participate in a case the Governor must, under Section 165 of the Constitution, appoint special justices to fill out a "full complement of justices."

¶ 16. Even with two justices electing not to participate, there remain seven justices, more than a quorum of the Court, to consider this case. Section 165 of the Constitution should not be read in isolation. Section 145B provides that five justices constitute a quorum of the Court. Most recently, the Court addressed this question in its unpublished but recorded orders entered in Rein v. Benchmark Construction Co., No.2001-CA-01885-SCT (Miss. Jan.3, 2003) and Doe v. Stegall, No.2001-CA-1674-SCT (Miss. Jan. 3, 2003.) In those cases, Presiding Justice McRae in an order recusing himself solicited the appointment by the Governor of a special justice to sit in his stead. Due to the unusual nature of the request for the special appointments, the Court, en banc, reconsidered the matter and issued its orders holding that such appointments are not needed.

¶ 17. In PERS v. Hawkins, 781 So.2d 899 (Miss.2001), all justices recused in a case brought by former Chief Justice Hawkins, and the parties agreed on five special justices, who were appointed by the Supreme Court, to determine the case. Addressing the constitutional and jurisdictional question of this panel's authority, it was said:

This panel of Special Justices constitutes a quorum of the Court and has full jurisdiction and authority pursuant to Article 6, Section 145B and Section 165 of the Mississippi Constitution to decide all issues raised by the filing of the Petition of Interlocutory Appeal by Public Employment Retirement System of Mississippi (PERS)....

Hawkins, 781 So.2d at 900.

¶ 18. A similar question was raised in Carter v. State, No. 97-CT-01468-SCT (Miss. Jan.28, 2001), where the appellant sought recusal of Justice Easley and the referral of the case to the Governor for appointment of a special justice under Section 165. There, Justice Easley had elected not to participate before the motion for recusal was filed, and the recusal motion was dismissed as moot. Then the Court, by unpublished but recorded order, found that "there is a quorum of the Court sufficient to decide the case," and denied the request for referral to the Governor.

¶ 19. In Slush v. Patterson, 201 Miss. 113, ...