Nause v. Goldman

• Decision Date: 03 November 1975
• Docket Number: No. 48409,48409
• Citation: 321 So.2d 304
• Parties: Charles L. NAUSE v. Ellen GOLDMAN.
• Court: Mississippi Supreme Court

Page 304

321 So.2d 304

Charles L. NAUSE v. Ellen GOLDMAN.

No. 48409.

Supreme Court of Mississippi.

Nov. 3, 1975.

Michael R. Medley, W. F. Selph, Jr., Jackson, for appellant.

Allan D. Shackelford, Clarksdale, for appellee.

Before RODGERS, PATTERSON and SUGG, JJ.

RODGERS, Presiding Justice.

This is an appeal from a final judgment sustaining a demurrer to a declaration filed by the appellant in the Circuit Court of Quitman County, Mississippi, dismissing the plaintiff's action.

The only issue presented to this Court for determination is whether or not the demurrer was wrongfully sustained by the trial court.

The declaration filed by the plaintiff charges that numerous lawsuits were filed against the plaintiff during 1972, and that at that time he had other attorneys representing him. Some of these lawsuits were settled at a discount of 19.2% of the face value of the notes.

The declaration alleged that there were twenty-one (21) suits on notes filed against the plaintiff for one hundred thousand one hundred and seven dollars and ninety-eight cents ($100,107.98) all on unsecured notes, except four notes in the sum of thirty-three thousand four hundred sixty-eight dollars and twenty-four cents ($33,468.24); that plaintiff's wife was also a defendant on one note for three hundred ninety-two dollars and ten cents ($392.10); that the defendant represented plaintiff's wife; and that in order that one attorney should represent plaintiff as well as his wife, plaintiff terminated the employment of his former attorneys and employed the defendant Ellen Goldman to also represent him. It was further alleged that the attorney entered into negotiations for the plaintiff in these suits with First National Bank, and later informed the plaintiff that she could settle these claims for $100,107.98, the face value of the notes. Plaintiff authorized the settlement for this sum, but the following day the defendant attorney presented the plaintiff with one note due in six months to be signed by plaintiff, together with a deed of trust on property of the plaintiff to secure the note. It is said that the defendant represented to the plaintiff that this note would settle all the claims the bank had against the plaintiff and that these claims would be dismissed for the sum of one hundred twenty-two thousand two hundred fifty-eight dollars and ninety-six cents ($122,258.96). This sum was twenty-two thousand one hundred fifty dollars and ninety-eight cents ($22,150.98) more than the amount for which plaintiff had authorized the defendant to settle the claims, and the plaintiff believes that this sum was for attorneys' fees for the bank's attorneys.

It was also alleged that-as a matter of fact-the defendant had allowed default judgments on all the suits filed by the bank, although the claims had been previously settled. Plaintiff dismissed the defendant attorney and reemployed his former attorneys who promptly settled the claims for one hundred ten thousand eight hundred and eleven dollars ($110,811.00). This was eleven thousand four hundred forty-seven dollars and ninety-six cents ($11,447.96) less than the amount suggested by the defendant. It is then alleged that the 'plaintiff verily believes that but for the negligence, errors and omissions committed by the defendant . . . the claims could have been settled for approximately the rate at which the Deposit Guaranty National Bank claims were settled, at a 19.2% reduction of the face value of the notes, or $80,887.25 . . ..' It was then alleged that the plaintiff was damaged in the amount of twenty-nine thousand nine hundred twenty-three dollars and seventy-five cents ($29,923.75).

It was also alleged that (a) thereafter the bank sued him for six hundred fifty-nine dollars and twenty-five cents ($659.25) due by him on a Master Charge account, which was not settled at the time the settlement was made due to the negligence of the defendant, and (b) while the defendant represented the plaintiff, the Hinds-Rankin Metropolitan Water and Sewer Association sued the plaintiff and during settlement negotiations, the defendant 'made various statements . . . of such a nature as necessarily result (sic) in extreme prejudice to the rights of plaintiff herein, and did in fact, ultimately result in the original suit for approximately $67,000.00 being finally settled for $70,000.00, that plaintiff herein verily believes that but for the negligence, errors and omissions of the defendant . . . the original suit . . . could have been settled for $40,000.00 . . . representing an increase of $30,000.00 . . .' of which the plaintiff was required to pay $12,500.00.

The plaintiff goes on in his declaration to say that the gross negligence of the defendant required him 'to heavily encumber property owned by him to such an extent and degree that he is daily faced with the prospects of losing his property . . . due to the acts of gross and reckless negligence on the part of Defendant . . ..'

The plaintiff then prayed judgment against the defendant in the sum of one hundred three thousand one hundred seventy-seven dollars and fifty cents ($103,177.50) actual and punitive damages.

The defendant filed a motion requesting the court to require the plaintiff to make his declaration more specific as to the acts of negligence alleged in each paragraph, and the specific elements of damages claimed. This motion was sustained, and the plaintiff answered and said that the specific words used by the defendant which caused the water and sewer association to claim and demand one hundred fifty thousand dollars ($150,000.00) instead of sixty-seven thousand dollars ($67,000.00) originally sued on were 'She wished to sell plaintiff's house and all of his property in Madison County and give the money to Hinds-Rankin Metropolitan Water & Sewer Association, Inc.' The appellant also alleged that the defendant required the plaintiff to consent and submit to numerous default judgments in spite of a new negotiable note executed by the plaintiff which included an attorney's fee of twenty thousand dollars ($20,000.00). Then, it is said that because of the negligence of the defendant, the plaintiff was forced to secure a deed of trust in the sum of two hundred and fifteen thousand dollars ($215,000.00) on property in Madison County...