Roussel v. Robbins

• Decision Date: 03 October 1996
• Docket Number: No. 90-CA-00536-SCT,90-CA-00536-SCT
• Citation: 688 So.2d 714
• Parties: Hunter L. ROUSSEL, Jr. v. John ROBBINS, II.
• Court: Mississippi Supreme Court

Page 714

688 So.2d 714

Hunter L. ROUSSEL, Jr. v. John ROBBINS, II.

No. 90-CA-00536-SCT.

Supreme Court of Mississippi.

Oct. 3, 1996.

Ricky G. Luke and Thomas W. Crockett, Jr., Watkins Ludlam & Stennis, Jackson, for Appellant.

John M. Roach, Jackson, for Appellee.

En Banc.

JAMES L. ROBERTS, Jr., Justice, for the Court:

I.

INTRODUCTION

Attorney John Robbins represented a Brandon, Mississippi property owner who obtained rezoning of his land in January of 1983. Hunter Roussel, who owned property nearby, opposed the rezoning and appealed to the Rankin County Circuit Court. The Circuit Court affirmed the rezoning, and Roussel appealed to this Court. During this appeal, Roussel's lawyer filed with this Court a Motion to Strike a Supplemental Abstract filed by Robbins. The Motion to Strike was denied, and the Circuit Court's judgment was affirmed in September of 1985.

Three years later, Roussel filed a Bar Complaint against Robbins, alleging that the Supplemental Abstract had contained false statements, and was an attempt to deceive the Court. The Bar Complaint was dismissed in May of 1989. In June of 1989, Roussel filed suit in the Rankin County Circuit Court, repeating the charges in the Bar Complaint. Robbins obtained from this Court leave to file counterclaims against Roussel for malicious prosecution, and filed these and other counterclaims.

In April of 1990, Roussel's complaint was dismissed on summary judgment. Robbins' counterclaim went to trial, and a jury awarded him $150,000 in actual damages. Roussel appeals, alleging the following errors:

I. THE JURY VERDICT AGAINST ROUSSEL SHOULD BE REVERSED AND RENDERED; OR IN THE ALTERNATIVE, REVERSED AND REMANDED.

A. AS A MATTER OF LAW, JUDGMENT SHOULD BE ENTERED FOR ROUSSEL ON THE MALICIOUS PROSECUTION CLAIM

1. BECAUSE ROUSSEL HAD ABSOLUTE IMMUNITY, THE MALICIOUS PROSECUTION CLAIM SHOULD HAVE BEEN DISMISSED.

2. THE TRIAL COURT ERRED BY ALLOWING THE ISSUE OF PROBABLE CAUSE TO GO TO THE JURY.

B. AS A MATTER OF LAW, JUDGMENT SHOULD BE ENTERED FOR ROUSSEL ON THE LIBEL CLAIM.

C. A NEW TRIAL SHOULD BE GRANTED IN THIS CASE

D. ALTERNATIVELY, THE COURT SHOULD ORDER A NEW TRIAL AS TO DAMAGES AND A REMITTITUR

II. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT ON ROUSSEL'S COMPLAINT.

We hold that summary judgment was properly granted to Robbins, because Roussel's allegations failed to describe any recognized tort. We affirm the jury's finding in favor of Robbins on the counterclaim. The jury award of $150,000 in damages is affirmed. Additionally, we hereby expressly overrule Meridian Star, Inc. v. Williams, 549 So.2d 1332, 1335 (Miss.1989), and any case which follows it because this Court incorrectly relied upon dictum from Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S.Ct. 2997, 3006-07, 41 L.Ed.2d 789 (1974). For correct statements of libel law with regard to opinions, consult Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-21, 110 S.Ct. 2695, 2705-07, 111 L.Ed.2d 1 (1990), and Keohane v. Wilkerson, 859 P.2d 291 (Colo.App.1993), aff'd, Keohane v. Stewart, 882 P.2d 1293 (Colo.1994), and cert. denied, --- U.S. ----, 115 S.Ct. 936, 130 L.Ed.2d 882 (1995).

II.

FACTS AND PROCEDURAL HISTORY

Attorney John Robbins, Jr. was hired by property owner A.C. Allen to obtain the rezoning of his land in Brandon from residential to commercial. On March 1, 1983, Allen's land was rezoned from R-1 to C-3, over the objections of Hunter Roussel, who owned land across the street.

Roussel, represented by attorney Steven Rimmer, filed a Bill of Exceptions appealing the rezoning on March 8, 1983. The Rankin County Circuit Court affirmed the rezoning, and Roussel appealed to this Court. The City of Brandon was represented by Robbins on appeal.

One document filed by Robbins during the appeal to this Court was a Supplemental Abstract of the Record, pursuant to Supreme Court Rule 41(b). Rimmer filed a Motion to Strike the Supplemental Abstract, on the ground that it was "inaccurate or at best misleading." An exhibit to the Motion compared portions of testimony in the Record, and Robbins' statements in the Abstract. The Motion to Strike was denied, and on September 18, 1985, this Court upheld the Circuit Court's decision.

In January of 1988, Roussel was examining Rimmer's files on the above litigation, in preparing to oppose another zoning application concerning the same property. There he found the Motion to Strike the Supplemental Abstract. Roussel decided that Robbins John Robbins, II, in his representations to the Circuit Court of Rankin County in case NO. 14,303 and the Supreme Court in case NO. 55,005, employed such means as are inconsistent with truth and he misled the Courts with a genuine creative effort to cause the Courts to decide in favor of his cause. His briefs, abstracts and other works presented to the Courts in the above mentioned cases are filled with inaccuracies, discrepancies, misstatements, efforts to obscure and confuse the truth, misleading statements, lies, deceptions, deceitfulness and trickery.

had made false statements to this Court, and that such conduct merited a bar complaint. He sent a letter dated November 10, 1988, containing his charges to Pat Scanlon, then-president of the Bar. Roussel's signature on the Complaint was witnessed by his wife and secretary. Scanlon referred Roussel's letter to the Complaint Counsel, and Roussel filed a Complaint form dated November 22, 1988. The Complaint stated in part:

These allegations referred in part to the Supplemental Abstract filed in the appeal of the Allen rezoning. Additionally, Roussel alleged that Robbins had lied in an affidavit filed in support of the Allen rezoning application in December of 1982, by asserting that the property had not been considered for rezoning during the previous two years, when in fact the Board of Alderman had denied a rezoning application by Allen only eighteen months prior. ¹

On March 29, 1989, the Complaints Committee dismissed Roussel's Complaint without a hearing.

On June 30, 1989, Roussel filed suit against Robbins in the Rankin County Circuit Court, repeating the allegations of his bar complaint. Roussel alleged that Robbins had committed a civil fraud against him, causing "substantial economic damage." Roussel also charged that Robbins had been "negligent in the carrying out of his duties as a member of the Mississippi State Bar," and that such negligence, along with Robbins' violation of the attorney's oath, and Miss.Code Ann. § 73-3-37 (1972), had also damaged him. Roussel demanded $100,000 in compensatory damages, and $500,000 in punitive damages. ²

An article appeared in the July 12, 1989, Rankin County News concerning Roussel's suit against Robbins. The article read in part:

In a Monday afternoon telephone interview, Roussel said that Robbins had allegedly changed the meaning of sentences included in the abstract of record, by eliminating certain words. "Because of that, I lost to the Supreme Court," Roussel said. "Even though my lawyer filed, saying that it was misleading, they (Supreme Court) let it stand. I feel like that I would have won."

On August 4, 1989, Robbins filed his answer and counterclaim for malicious prosecution of a civil suit, asserting that in filing the Complaint, Roussel was pursuing "a course of persecution, slander and libel" against him. On August 7, Robbins petitioned this Court for permission pursuant to Rule 14(b) of the Rules of Discipline for the Mississippi State Bar to file civil suit in the form of a counterclaim for malicious prosecution. Robbins charged that Roussel, in having his Bar Complaint "witnessed" by two individuals, had not kept the Complaint confidential, as required by the disciplinary rules. He further charged that Roussel's conduct in filing the Bar Complaint, then the civil suit after the Bar Complaint was dismissed, demonstrated Roussel's intent "to maliciously harass Robbins without any legitimate cause or arguable reasons."

In an order dated January 25, 1990, this Court found that "there appears to or may (Robbins) has suffered and will continue to suffer in the future, damage to his reputation in the community which has and will affect his standing in the community and in his profession as an attorney in the community, causing him to sustain now and in the future, loss of clients, associations and goodwill.

                have been malicious prosecution and malicious circulation to parties or persons not entitled to receive information pertaining to matters arising under the Rules of Discipline."   The Court granted Robbins permission to file a counterclaim on these grounds.  Robbins amended his counterclaim on March 1, 1990, to reflect the Court's Order.  The counterclaim alleged in part
                

Robbins demanded $20,000 in actual damages and $200,000 in punitive damages.

On November 28, 1989, Robbins filed a Motion to Dismiss pursuant to Rule 12(b)(6). On April 24, 1990, Judge Goza issued an opinion granting summary judgment for Robbins. The opinion held that Roussel's charge that Robbins had committed fraud or negligence by stating that the Allen property had not been considered for rezoning within two years was without merit. The judge found that 1) even assuming Robbins' statement was false, Roussel did not have standing to seek redress, since the City of Brandon was the injured party, not Roussel; 2) even assuming Roussel had standing, his claim of fraud or negligence was without basis, since Robbins' statement was not false as a matter of law. The judge stated:

The only reasonable interpretation of the ordinance regulating the filing of successive rezoning applications on the same property is if an application has been denied on the merits (as opposed to dismissed on procedural grounds), the applicant must wait two years before reapplying. The Mayor and Board of Alderman adopted this interpretation and found that the previous application was not denied on the merits but because another application had been filed...