Kirk v. Pope

• Decision Date: 06 December 2007
• Docket Number: No. 2005-CA-02164-SCT.,2005-CA-02164-SCT.
• Citation: 973 So.2d 981
• Parties: Mike KIRK v. Randy POPE and Dixieland Forest Products, Inc.
• Court: Mississippi Supreme Court

973 So.2d 981

Mike KIRK v. Randy POPE and Dixieland Forest Products, Inc.

No. 2005-CA-02164-SCT.

Supreme Court of Mississippi.

December 6, 2007.

W. Eric Stracener, W. Andrew Neely, Jackson, attorneys for appellant.

Cynthia A. Stewart, Edward J. Peters, Jackson, Eileen N. Shaffer, attorneys for appellees.

EN BANC.

WALLER, Presiding Justice, for the Court.

¶ 1. This appeal is taken from the Circuit Court of the First Judicial District of Hinds County's entry of a final judgment dismissing Plaintiff Mike Kirk's claims against Defendants Randy Pope and Dixieland Forest Products, Inc. Because we find that the circuit court erred in vacating the final judgment and dismissing Kirk's claims, and because the remittitur was not accepted by both parties as required under our recent opinion in Dedeaux v. Pellerin Laundry, Inc., 947 So.2d 900, 908 (Miss. 2007), we reverse the judgment of dismissal and remand the case to allow Pope the opportunity either to accept the remittitur or to have a new trial on the issue of damages only. On remand, all judgment proceeds are to be distributed to Kirk's bankruptcy estate, and judicial estoppel is to apply to Kirk, individually.

FACTS

¶ 2. On February 5, 1996, Mike Kirk filed a breach-of-contract action against Randy Pope and Dixieland Forest Products, Inc. (Dixieland) in the. Circuit Court of the First Judicial District of Hinds County. Kirk was represented by attorney David Baria, and Pope was represented by attorney Leonard Melvin. On August 27, 1998, Kirk filed a Chapter 7 bankruptcy petition in United States Bankruptcy Court. Derek A. Henderson was appointed the Chapter 7 trustee. Kirk did not disclose the existence of his lawsuit against Pope and Dixieland in the bankruptcy proceedings.¹ On December 30, 1998, the bankruptcy case was closed, and Kirk was discharged.

¶ 3. Approximately four years after his discharge from bankruptcy, Kirk's breach of contract case was tried. The jury returned a verdict of $700,000 in favor of Kirk on October 18, 2002.² The final judgment was entered on October 28, 2002.

¶ 4. On October 25, 2002, the Bankruptcy Court entered an Order Reopening the Bankruptcy Case. Pope later discharged Leonard Melvin and obtained new counsel, Edward J. Peters and Cynthia Stewart. On November 25, 2002, Pope filed a notice of removal to the United States District Court for the Southern District of Mississippi on the basis that the action related to the bankruptcy estate. On January 23, 2003, the bankruptcy court entered an order approving a motion to employ David Baria as the trustee's special counsel and approving a contingency fee agreement. On June 24, 2003, the federal court remanded the case to Hinds County because the case already had been tried on the merits, and Kirk's counsel had been appointed as the trustee's representative to pursue the cause of action.

¶ 5. On November 19, 2003, the trial court granted a remittitur and reduced the judgment to $400,000, which Kirk accepted, On November 25, 2003, Pope filed a Motion for Reconsideration and for Stay of Judgment, which was set for hearing on December 12, 2003, apparently by ex parte order³ of the trial court, which also stayed all matters. On December 1, 2003, the trial court entered another order granting Kirk additional time to respond to the motion, enjoining Kirk from executing on the judgment, and enjoining Pope from divesting any assets until the motion was heard. On December 9, 2003, the trial court entered an agreed order continuing the hearing on the motion for reconsideration and motion for stay of judgment until February 6, 2004, and continuing the injunctions on both parties. Prior to the hearing on February 6, 2004, Pope advised the trial court that there would be no hearing, as both parties were negotiating a settlement of the judgment.⁴ During this time, neither party submitted an order or requested that the trial court reschedule a hearing regarding Pope's Motion for Reconsideration.

¶ 6. Pope filed a legal-malpractice action against Melvin arising from previous representation in the instant case and executed a contingency-fee agreement with his new counsel, Peters and Stewart. Pope and Melvin settled the malpractice action for $275,000 on April 20, 2005. On May 5, 2005, Kirk filed a motion for contempt and for an injunction to freeze Pope's assets. That same day, Pope filed a motion asking the court to clarify the December 9, 2003, order,⁵ and admitting that Pope had disbursed the proceeds from the malpractice settlement⁶ and sold at least one asset.

¶ 7. On May 17, 2005, the trial court entered an order declaring that neither party had requested a continuance of the injunction beyond February 6, 2004, and that it assumed the parties had reached a settlement, but reserved ruling on the issue of whether the December 11, 2003, order extended the injunction beyond February 6, 2004, until a hearing on the record scheduled for June 17, 2005. In the interim, the trial court enjoined the parties from executing on the judgment and from disposing of any assets. On May 24, 2005, the trial court entered an order denying Pope's Motion for Reconsideration and for Stay of Judgment and lifting the injunctions.

¶ 8. On September 14, 2005, Pope filed, in accordance with Rule 60(b) of the Mississippi Rules of Civil Procedure, a Motion for Relief from Judgment, asserting that Kirk was judicially estopped from pursuing his claims against Pope. Thereafter, the trial court vacated the final judgment by memorandum opinion and order on October 17, 2005, finding that Kirk's failure to disclose this case to the bankruptcy court effectively stripped Kirk of standing to pursue his claims against Pope. The trial court further found that it lacked jurisdiction over the case and dismissed the final judgment. The final judgment of dismissal was entered on November 4, 2005. Kirk's post-trial motions were denied and he filed this appeal.

STANDARD OF REVIEW

¶ 9. Issue I concerns a trial court's decision on a Rule 60(b) motion, which is subject to review under an abuse of discretion standard. Hartford Underwriters Ins. Co. v. Williams, 936 So.2d 888, 892 (Miss.2006) (citing M.A.S. v. Mississippi Dep't of Human Services, 842 So.2d 527, 530 (Miss.2003)). While deference is given to the trial judge, consideration of a Rule 60(b) motion also requires that a balance be struck between granting a party a hearing on the merits and the need to achieve finality. Id. (citing Lose v. Illinois Cent. Gulf R.R., 584 So.2d 1284, 1286 (Miss.1991)). Furthermore, "[a]n abuse of discretion standard does not mean a mistake of law is beyond appellate correction," because a court abuses its discretion when it makes an error of law. Browning Mfg. v. Mims, 179 F.3d 197, 205 (5th Cir.1999) (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), superseded by statute, Pub.L. No. 108-21, 117 Stat. 670).

¶ 10. Issue II regards standing, which is a question of law reviewed under a de novo standard. See City of Picayune v. Southern, Reg'l Corp., 916 So.2d 510, 519 (Miss.2005) (citing Brown v. Mississippi Dep't of Human Services, 806 So.2d 1004, 1005-06 (Miss.2000)).

¶ 11. Issue III concerns a trial court's imposition of judicial estoppel, which is subject to review under an abuse of discretion standard. Superior Crewboats, Inc. v. Primary P & I Underwriters, 374 F.3d 330, 334 (5th Cir.2004) (citing Hall v. GE Plastic Pacific PTE Ltd., 327 F.3d 391, 396 (5th Cir.2003)).

¶ 12. Issue IV concerns the remittitur granted by the trial court. While the subject case was pending appeal, this Court decided Dedeaux Pellerin Laundry, Inc., 947 So.2d 900 (Miss.2007). In Dedeaux, we overruled prior case law and held that a remittitur takes effect only if it is accepted by all parties. Dedeaux, 947 So.2d at 908. Under Dedeaux, if all parties do not agree to the remittitur "then each party shall have the right to either demand a new trial on damages, or appeal the order asserting an abuse of discretion on the part of the trial judge."⁷ Id.

¶ 13. Under Rule 28(a)(3) of the Mississippi Rules of Appellate Procedure, "the Court may, at its option, notice a plain error not identified or distinctly specified." M.R.A.P. 28(a)(3). Plain-error review is appropriate where there has been an intervening change in the law while a case is on appeal. United States v. Williamson, 183 F.3d 458, 464 (5th Cir.1999) (quoting Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 1548-49, 137 L.Ed.2d 718 (1997)). Plain-error review may be invoked where (1) a party has failed to preserve an error for appellate review and (2) a substantial right is affected. State Highway Comm'n of Miss. v. Hyman, 592 So.2d 952, 957 (Miss.1991). This Court has stated that a monetary interest is a substantial right. Id.; Miss. Mun. Liab. Plan v. Jordan, 863 So.2d 934, 941 (Miss. 2003). Because the remittitur in this case affects a substantial right—specifically, a $400,000 judgment—plain-error review is appropriate.

DISCUSSION

I. Whether Pope's 60(b) Motion for Relief from Judgment was timely.

¶ 14. Kirk asserts that Pope's 60(b) motion was not filed "within a reasonable time" from October 28, 2002, or from November 19, 2003—the dates on which the final judgment and remittitur were entered, respectively. Kirk contends that the trial court erred in calculating the time from the May 24, 2005, order denying reconsideration, because Pope did not seek relief from that specific order and relief from that order would not have relieved Pope from the judgment.

¶ 15. Pope filed a Motion for Relief from Judgment on September 14, 2005, and asked the trial court to vacate the October 28, 2002, judgment pursuant to Mississippi Rule of Civil Procedure 60(b)(1), (4) and (6).⁸ Under Rule 60(b), a court may relieve a party from a "final judgment, order, or proceeding" when "(4) the judgment is void" or for "(6) any other reason justifying relief from the judgment."...