Terrell v. Mississippi Bar

• Decision Date: 05 October 1995
• Docket Number: No. 93-BA-00838-SCT,93-BA-00838-SCT
• Citation: 662 So.2d 586
• Parties: Stella L. TERRELL v. The MISSISSIPPI BAR.
• Court: Mississippi Supreme Court

Page 586

662 So.2d 586

Stella L. TERRELL v. The MISSISSIPPI BAR.

No. 93-BA-00838-SCT.

Supreme Court of Mississippi.

Oct. 5, 1995.

Stella L. Terrell, pro se, Yazoo City, for Appellant.

J. David Wynne, Michael B. Martz, Jackson, for Appellee.

En Banc.

SULLIVAN, Justice, for the Court:

This is an appeal taken by Ms. Stella Terrell of an Opinion and Judgment, entered on June 24, 1993, of a Mississippi Bar Complaint Tribunal. The Tribunal found Terrell had violated Mississippi Rules of Professional Conduct 1.3, 1.4, and 8.4(a & d). The Judgment imposed a six (6) month suspension, to run concurrently with a one (1) year suspension imposed in another matter, ordered Terrell to make restitution in the amount of fifteen hundred ($1,500.00) dollars, and ordered Terrell to successfully take the Professional Responsibility Section of the Mississippi Bar Examination prior to her reinstatement.

FACTS

In August of 1991, Mr. Greg Coleman was convicted of certain felonies in the Circuit Court of Humphreys County, Mississippi. Terrell was not Coleman's attorney for those proceedings. Subsequent to Coleman's convictions, but within time to appeal to this Court, Coleman contacted Terrell to request her representation for an appeal.

Terrell agreed to the representation and was paid a total of fifteen hundred ($1,500.00) dollars by Coleman's mother, Ms. Vircine Young, on August 30, 1991 and September 6, 1991. Coleman attempted to contact Terrell on several occasions after his initial conversation with her at the end of August. He received one letter on October 28, 1991, which stated that Terrell would try to visit him in Parchman, but that visit did not come to fruition until February, 1992.

Terrell filed a Notice of Appeal with this Court on behalf of Coleman, but failed to further prosecute the appeal by not paying the requisite appeal costs. Terrell received notice of these deficiencies from this Court on October 7, 1991; however, Terrell failed to cure these deficiencies and the appeal was dismissed on November 2, 1991.

Coleman did not learn of the dismissal from Terrell, but from a letter by this Court in November of 1991. Coleman tried to contact Terrell to be apprised of the reason his appeal had been dismissed, but Terrell failed to respond. Coleman eventually learned the reason why his appeal was dismissed from a fellow inmate in Parchman. Coleman, with the help of a writ writer in Parchman, again attempted through letters to contact Terrell, but received no correspondence from her. Coleman caught a fleeting glimpse of Terrell in Parchman in the beginning of February of 1992, but she told him she could not see him. Finally, Terrell visited Coleman later in the month of February 1992--this was three months after Coleman's appeal had been dismissed.

With the help of a writ writer, Coleman filed pro se with this Court, a motion to reinstate his appeal. His appeal was granted by this Court. In addition to granting Coleman's appeal, this Court asked the Circuit Court of Humphreys County to hold a hearing on the status of Coleman's representation on appeal. The Humphreys County court appointed an attorney on May 12, 1992 to prosecute the appeal for Coleman and ordered Terrell to pay fifteen hundred ($1,500.00) dollars into the registry of that court within ten (10) days. Terrell did not pay the money. She instead attempted to discharge in bankruptcy.

Based on a complaint filed by Coleman, the Committee on Professional Responsibility of the Bar directed that a Formal Complaint be filed against Terrell on November 6, 1992, and on November 30, 1992, an Order was sent to Terrell setting the date for trial on April 13, 1993. On January 22, 1992, Terrell filed a Motion to Dismiss, or In the Alternative to Stay. That motion was denied on January 28, 1993.

On February 9, 1993, Terrell filed her answer to the formal complaint which stated that Coleman had neglected to pay the costs of appeal; however, Terrell did accept responsibility

for not having filed a motion to extend the time of the appeal. On April 13, 1993, the trial was heard before a Tribunal which found Terrell had violated Mississippi Rules of Ethics 1.3, 1.4, and 8.4(a & d). Terrell aggrieved of the Tribunal's ruling appeals to this Court. The Mississippi Bar cross-appeals, arguing that the discipline imposed by the Tribunal was too lenient.

Standard of Review

In considering this appeal, this Court examines the evidence de novo, by reviewing the record and findings and conclusions of the Tribunal, and renders such orders as it deems appropriate. Mississippi Rules of Discipline for the State Bar 9.4; Mathes v. Mississippi Bar, 637 So.2d 840, 846 (Miss.1994); Mississippi State Bar v. Odom, 566 So.2d 712, 714 (Miss.1990); Mississippi State Bar v. Nichols, 562 So.2d 1285, 1287 (Miss.1990); Mississippi State Bar v. Varnado, 557 So.2d 558, 559 (Miss.1990); Levi v. Mississippi State Bar, 436 So.2d 781, 782 (Miss.1983). While this Court accords deference to the findings of the Tribunal, this Court has the non-delegable duty of ultimately satisfying itself as to the facts, and reaching such conclusions and making such judgments as it considers appropriate and just. Mississippi State Bar v. Strickland, 492 So.2d 567, 571 (Miss.1986).

I. THE BAR'S COMPLAINT WAS SUBJECT TO DISMISSAL

Terrell argues that the instant case should have been dismissed because there was another bar complaint pending against her. There were two grievances, Docket No. 91-304-2, which became the present case, and Docket No. 91-490-2, Coleman's second bar complaint, filed as a result of Terrell's failure to pay into the registry of the Circuit Court of Humphreys County the fifteen hundred ($1,500.00) dollars as directed by the Order of that court. Terrell complains that due process and the Rules of Discipline do not allow the bar to bifurcate known issues arising out of the same occurrences into separate complaints because it would subject an attorney to multiple discipline for the same alleged violations.

The second charge filed by Coleman was disposed of by the imposition of an informal admonition on Terrell without the filing of a Formal Complaint, and this second charge was taken care of more than one (1) year after the order in the present cause was entered. As to this first assignment of error, Terrell has failed to establish that there were two Formal Complaints involving the same facts and issues imposed against her, because only one Formal Complaint was ever filed. Therefore, this issue is without merit.

II. THE TRIBUNAL WAS IN ERROR IN NOT GRANTING A CONTINUANCE

Terrell complains that several important and crucial defenses were argued on the trial day which would warrant a continuance. When she argued at the trial for a continuance, she cited lack of notice, among other issues. However, at trial it was established that on November 20, 1992, the trial date of April 13, 1993 was set, and on December 1, 1992, the Bar submitted a signed and clerk-stamped copy of the order to Terrell. Also, Terrell filed a Motion to Dismiss or In the Alternative to Stay on January 22, 1992, establishing the fact that she did indeed receive notice of the upcoming trial. Thus, this assignment is completely without merit.

Terrell also states that good cause existed for the continuance when she argued to the Tribunal that it was election day and that she was the Yazoo County Coordinator for the Bennie Thompson campaign. However, she did not file a formal continuance motion but merely argued the continuance motion ore tenus.

Following our procedural guidelines, Terrell should have filed a formal continuance motion under Miss.Code Ann. § 99-15-29 (1994), which requires an affidavit setting forth, among other things, that she has used due diligence and that the continuance is not sought for delay, but so justice may be done. "Exigencies which arise during ... trials are often rightly met with such [ore tenus ] pleadings, but the substance and content At the trial the Tribunal responded to Terrell's ore tenus motion by stating "had Respondent simply brought this to the attention of the Tribunal within a reasonable time that there was a conflict on the election date and that Respondent was actively involved in that election, there would have been absolutely no doubt that the case would have been reset." So, the Tribunal would have allowed Terrell the continuance had she merely filed a motion in a timely manner. A court or Tribunal should not be expected to stop the proceedings merely because one side states that there is good cause. Our legal system dictates that rules of order are followed. The Tribunal did not err in declining to grant a continuance because Terrell did not file a motion, and she did not show the requisite exigent circumstances necessary to grant a continuance based on an ore tenus motion.

of such pleadings required by a statute cannot be ignored." McClendon v. State, 335 So.2d 887, 889 (Miss.1976). The decision to grant or deny a continuance is one left to the sound discretion of the court. Johnson v. State, 631 So.2d 185, 189 (Miss.1994) (citing Wallace v. State, 607 So.2d 1184, 1190 (Miss.1992); Morris v. State, 595 So.2d 840, 844 (Miss.1991); Fisher v. State, 532 So.2d 992, 998 (Miss.1988)). "Unless manifest injustice appears to have resulted from the denial of the continuance, this Court should not reverse." Johnson, 631 So.2d at 189 (citing Hatcher v. Fleeman, 617 So.2d 634, 639 (Miss.1993)). This Court has consistently held that a trial court will not be held in error in denying a continuance where the defendant fails to follow the procedures outlined by statute and case law. Johnson, 631 So.2d at 190 (citing Pinson v. State, 518 So.2d 1220, 1222 (Miss.1988); Pool v. State, 483 So.2d 331, 336 (Miss.1986)).

Terrell also argues that "she raised objections as to whether the disciplinary process was racially discriminatorily applied and as to whether the manner in which [the] case...