Rose v. Tullos

• Citation: 994 So.2d 734
• Decision Date: 13 November 2008
• Docket Number: No. 2007-CA-01028-SCT.,2007-CA-01028-SCT.
• Parties: Julian ROSE, M.D. v. Eugene TULLOS.
• Court: United States State Supreme Court of Mississippi

994 So.2d 734

Julian ROSE, M.D. v. Eugene TULLOS.

No. 2007-CA-01028-SCT.

Supreme Court of Mississippi.

November 13, 2008.

Drew McLemore Martin, Jackson, attorney for appellant.

David Garner, attorney for appellee.

Before SMITH, C.J., CARLSON and RANDOLPH, JJ.

SMITH, Chief Justice, for the Court.

¶ 1. Julian Rose, M.D., filed suit against attorney Eugene Tullos for malicious prosecution, civil abuse of process, and violations under the Litigation Accountability Act. The Circuit Court of Smith County granted Tullos's motion to dismiss for failure to state a claim upon which relief could be granted. Aggrieved, Rose now appeals to this Court.

¶ 2. Rose raises the following issues on appeal:

I. Whether the trial court erred in granting Tullos's motion for failure to state a claim arising under the Litigation Accountability Act.

II. Whether the trial court erred in granting Tullos's motion for failure to state a claim on the ground of malicious prosecution.

III. Whether the trial court erred in granting Tullos's motion for failure to state a claim on the ground of civil abuse of process.

PROCEDURAL HISTORY

¶ 3. Rose filed a pro se complaint against Tullos in the Chancery Court of Rankin County in August 2005. The complaint alleged malicious prosecution. Tullos filed a motion for change of venue to the Circuit Court of Smith County. The motion was granted in March 2006, and the case was transferred to Smith County Circuit Court.

¶ 4. Rose filed a motion to amend his complaint in June 2006, which was granted. Rose then filed his first amended complaint in June 2006, which alleged violation of the Litigation Accountability Act of 1988, malicious prosecution, and abuse of process.

¶ 5. Rose filed a motion for leave to amend his complaint and for change of venue, or in the alternative, for the recusal of Judge Robert Evans in June 2006. Judge Evans recused himself and submitted a request to this Court for the appointment of a special judge to preside over all further proceedings. In October 2006, this Court specially appointed the Honorable Isadore W. Patrick, Jr. from the Ninth Circuit Court District to preside over all further proceedings in the case.

¶ 6. In April 2007, Tullos filed a motion to dismiss for failure to state a claim upon which relief could be granted under Mississippi Rule of Civil Procedure 12(b)(6). In May 2007, the trial court granted the motion to dismiss. Aggrieved, Rose timely filed an appeal to this Court.

¶ 7. We hold that the Litigation Accountability Act does not create a separate, independent cause of action. The remaining issues are without merit. We therefore affirm the trial court's judgment.

FACTS

¶ 8. In an earlier action, Alma Jones brought suit against Rose for medical malpractice. Tullos represented Jones in the malpractice action. Jones filed the lawsuit against Rose (as well as the Mississippi Baptist Medical Center, Olympus American, Inc., and nine unnamed defendants) "on or about December 31, 2002." Summary judgment was granted in favor of Rose in September 2004, and the case was dismissed.

¶ 9. Rose then filed his pro se complaint in this case against Tullos for malicious prosecution, indicating he was unable to find an attorney to represent him. Eventually, Rose secured representation. Rose's amended complaint ultimately alleged malicious prosecution, civil abuse of process, violation under the Litigation Accountability Act, defamation, and damage to his reputation.

¶ 10. Rose, acting through counsel in his response to Tullos's Rule 12(b)(6) motion to dismiss, voluntarily dismissed his claims of defamation and damage to his reputation against Tullos. Judge Patrick held that the other claims could not survive a Rule 12(b)(6) motion for failure to state a claim upon which relief could be granted. The case was dismissed. Aggrieved, Rose now appeals to this Court.

STANDARD OF REVIEW

¶ 11. A motion to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure raises an issue of law, which is reviewed under a de novo standard. Cook v. Brown, 909 So.2d 1075, 1077-78 (Miss.2005). A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint. Id. at 1078 (citing Little v. Miss. Dep't of Human Servs., 835 So.2d 9, 11 (Miss. 2002)). The allegations in the complaint must be taken as true, and there must be no set of facts that would allow the plaintiff to prevail. Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, 893 (Miss.2006). This Court need "not defer to the trial court's ruling." Id. (citing Roberts v. New Albany Separate Sch. Dist., 813 So.2d 729, 730-31 (Miss.2002)). This Court must find that there is no set of facts that would entitle a defendant to relief under the law in order to affirm an order granting the dismissal of a claim on a Rule 12(b)(6) motion. Id. (citing Lowe v. Lowndes County Bldg. Inspection Dep't, 760 So.2d 711, 713 (Miss.2000)).

DISCUSSION

I. Whether the trial court erred in granting Tullos's motion for failure to state a claim arising under the Litigation Accountability Act.

¶ 12. Mississippi Code Annotated Section 11-55-5(1) (Rev.2002), commonly referred to as the Litigation Accountability Act, states in pertinent part:

in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment, and in addition to any other costs otherwise assessed, reasonable attorneys fees and costs against any party or attorney if the court, upon motion of any party or on its own motion, finds that an attorney or party brought an action,....

Miss.Code Ann. § 11-55-5(1) (Rev.2002) (emphasis added).

¶ 13. This Court has long held that when a statute is not ambiguous, it must be construed according to its plain meaning. Miss. Ins. Guar. Ass'n v. Cole, 954 So.2d 407, 412 (Miss.2007). The Litigation Accountability Act states a claim for attorney's fees and costs in any civil action must be brought "upon motion of any party or on its own motion." Miss.Code Ann. § 11-55-5(1) (Rev.2002). The wording of the statute leaves no room for any alternative interpretation of the procedure to be utilized to seek attorney fees and costs. A plain reading of the statute creates no separate cause of action for a violation of the Litigation Accountability Act.

¶ 14. This Court has set forth its duty to interpret actions by the Legislature, not to enlarge or restrict Legislative intent. Id. at 412 (citing Miss. Dep't of Transp. v. Allred, 928 So.2d 152, 156 (Miss.2006)). Rose would have this Court alter the Litigation Accountability Act beyond the language of the statute to allow for a separate cause of action that is not granted by the language of the statute. This Court declines to do so. This Court has held consistently that its "ultimate goal ... is to discern and give effect to ... legislative intent." Cole, 954 So.2d at 412-13 (citing Allred, 928 So.2d at 154); see also Green v. Cleary Water, Sewer & Fire Dist., 910 So.2d 1022, 1027 (Miss.2005); Marx v. Broom, 632 So.2d 1315, 1318 (Miss.1994); City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992).

¶ 15. Whether or not the Litigation Accountability Act creates a separate cause of action has never been ruled on by this Court, thus we have a case of first impression. Previously, only our Court of Appeals has addressed the issue and held that no separate cause of action can lie under the Litigation Accountability Act. Randolph v. Lambert, 926 So.2d 941 (Miss. Ct.App.2006). Rose asks this Court to overrule Randolph.

¶ 16. While this Court has the power as the final arbiter to determine the Legislature's intent, as earlier stated, a plain reading of the Act does not counter the holding in Randolph. Thus we confirm the Court of Appeals' interpretation of the Litigation Accountability Act as not providing a separate independent cause of action.

¶ 17. In Randolph, the Court of Appeals held that the plain meaning of the statute was readily interpreted. Id. The Court of Appeals held that the Act was codified to create an additional avenue for sanctions, not to create an independent cause of action. Id. at 944-45. The Court of Appeals referred to the language in the statute "upon motion of any party or on its own motion" as an indication of the Legislature's intent that violations under the Act must be brought in motion form; therefore, the Legislature did not create a separate cause of action. Id. at 945 (quoting Miss.Code Ann. § 11-55-5(1) (Rev. 2002)).

¶ 18. The Court of Appeals noted additional language from the Act, that "the court shall award, as part of its judgment and in addition to any other costs assessed ...," as further indication that any judgment must be "part of the original action ... not an independent judgment in and of itself." Id. at 945. The Court of Appeals held itself bound by the plain language of the statute, and this Court agrees—the Court of Appeals is bound by the language of the statute, as is this Court. The Court of Appeals properly interpreted the Litigation Accountability Act.

¶ 19. In the alternative, Rose argues that, should this Court deem a separate action does not lie, such a ruling merely affirms Randolph. Rose advances the argument that prior to Randolph, an independent action would have been viable. Therefore, Rose argues that his claim should stand as an independent action because it was filed prior to the Court of Appeals' decision in Randolph, irrespective of this Court's ruling. Randolph, 926 So.2d 941.

¶ 20. Although this Court had not previously interpreted the statute as to whether or not a separate action would lie, neither this Court nor the Court of Appeals in Randolph altered the law. Id. Therefore, whether Rose filed his claim as an independent action under the Litigation Accountability Act, either prior to, or subsequent to, Randolph, the action does not constitute a claim upon which relief may be had.

¶ 21. Additionally, Rose claims that Rule 11...