Clinton et al v. Johnson et al

Filing 153

ORDER granting 94 Motion for Summary Judgment; granting 95 Motion for Summary Judgment; granting 96 Motion for Summary Judgment; finding as moot 103 Motion for Summary Judgment; and dismissing counter-claim as premature. Signed by Honorable David C. Bramlette, III on 9/29/2014 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
J. PAUL CLINTON and
STOKES and CLINTON, P.C.
VS.

PLAINTIFFS
CIVIL ACTION NO. 3:13-cv-871(DCB)(MTP)

W. RICHARD JOHNSON, SR.;
DAVID M. SESSUMS;
VARNER, PARKER & SESSUMS, P.A.;
and TAMRA WARNOCK

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the Court on motions for summary judgment
filed by defendants David M. Sessums (“Sessums”) and Varner, Parker
& Sessums, P.A. (“Varner, Parker & Sessums”)(docket entry 94),
Tamra Warnock (“Warnock”)(docket entry 95), and W. Richard Johnson,
Sr. (“Johnson”)(docket entry 96).

Also before the Court is a

motion for summary judgment on the defendants’ counterclaim, filed
by plaintiffs J. Paul Clinton (“Clinton”) and Stokes and Clinton,
P.C. (“Stokes & Clinton”) (docket entry 103).

Oral argument was

held on July 17, 2014. Having carefully considered the motions and
responses, the memoranda and oral argument of the parties, as well
as the applicable law, and being fully advised in the premises, the
Court finds as follows:
According to the plaintiffs’ Complaint, plaintiff J. Paul
Clinton, a resident citizen of Alabama who is licenced to practice
law in Mississippi, sued and took a default judgment for his
client, State Farm Mutual Automobile Insurance Company (“State

Farm”), against defendant Warnock in Warren County, Mississippi, on
November 27, 2006.

Compl. ¶ 12 & Ex. A.

The default judgment

related to a car accident in which Warnock was alleged to have been
involved.

Compl. ¶ 12 & Ex. A.

Shortly thereafter, defendant

Johnson, one of Warnock’s attorneys, moved to set aside the
judgment and a hearing was set on the matter.

Compl. ¶ 13.

In

response to Warnock’s Motion, wherein she averred that she was not
driving the car when the accident occurred, Compl. Ex. A ¶ 4,
Clinton sent a letter and proposed order to Johnson, stating that
State Farm would agree to set aside the default judgment and
dismiss Warnock from the suit if she would stipulate to certain
facts regarding her involvement in the accident.

Compl. ¶ 14, 17.

Warnock declined State Farm’s offer and chose instead to proceed
with the hearing.

Compl. ¶ 15.

At the hearing, Warnock provided

testimony supporting her claim that she could not be liable for the
accident, and the trial court set aside the judgment. Compl. ¶ 18.
Another of Warnock’s attorneys at the hearing, defendant Sessums,
then moved for sanctions against Clinton, but the trial court
declined the request.

Compl. ¶ 19 & Ex. C.

Following the hearing, Clinton claims that he approached
Johnson

in

courtesy.”

an

effort

Compl. ¶ 22.

to

“promote

civility

and

professional

According to Clinton, Johnson rebuffed

his good-faith attempt to smooth over the matter and informed him
that another “similar case” was pending in Hinds County.

2

Compl. ¶

23.

Clinton then went to the law office of Varner, Parker &

Sessums to speak with Sessums.

Clinton states that Sessums was

receptive to his overtures and agreed to resolve any similar
disputes out of court before filing any motions for sanctions.
Coml. ¶ 24.

Clinton states he believed the matter had been

resolved, but on September 26, 2007, he learned from various
clients, family, and friends that the Clarion Ledger was running an
advertisement in which Johnson was soliciting potential clients who
had been treated similarly to Warnock with the intention of filing
a class-action lawsuit against Clinton. Compl. ¶ 29. Through some
investigation, Clinton discovered that Varner, Parker & Sessums had
paid for the advertisement.

Compl. ¶ 30.

Upon discovering this

information, Clinton contacted both Johnson and Varner, Parker &
Sessums to inform them that he believed their conduct violated
Mississippi Rule of Professional Conduct 7.2(e), which prohibits a
lawyer from directly or indirectly paying for the cost of an
advertisement for someone in another firm.

Compl. ¶ 31.

Sessums

responded that Johnson had been associated with the firm in the
matter and that the advertisement would continue to run. Compl. ¶¶
33, 34.

In response, Clinton retained counsel and was successful

in getting the advertisement permanently enjoined.

Compl. ¶ 38.

Subsequently, Warnock, represented by Johnson and Varner,
Parker & Sessums, filed a class-action Racketeer Influenced and
Corrupt Organizations Act (“RICO”) lawsuit in this Court against

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Clinton and his law firm, which included allegations that Clinton
committed wire and mail fraud in his communications with Warnock.
Compl. ¶¶ 39, 40.

The RICO claim survived Clinton’s motion to

dismiss, Warnock v. State Farm Mut. Auto. Ins. Co., 2008 WL 4594129
(S.D. Miss. Oct. 14, 2008), and Clinton spent the next three years
defending Warnock’s RICO allegations.

Compl. ¶ 42.

During the

course of discovery, Warnock testified that she had received no
letters or phone calls from Clinton, his law firm, or his client,
an occurrence necessary for the survival of her mail and wire fraud
claims.

Compl. ¶ 43.

Clinton then moved for summary judgment,

which this Court granted because Warnock could not produce any
evidence of the commission of two or more incidents of fraud and
thus could not show a pattern of racketeering activity.

Compl. ¶

46; Warnock v. State Farm Mut. Auto. Ins. Co., 833 F. Supp. 2d 604,
608-09 (S.D. Miss. June 15, 2011). Clinton avers that not only did
he spend $789,429.44 on defending a meritless case, but also his
malpractice premium increased 300% as a result of the lawsuit.
Compl. ¶¶ 46, 47.
Based on these allegations, Clinton brought seven claims
against the defendants.

In a previous Memorandum Opinion and

Order, Clinton v. Johnson, 2013 WL 870361 (S.D. Miss. March 7,
2013), the Court dismissed four of the claims, leaving only
malicious prosecution, abuse of process, and intentional infliction
of emotional distress.

Clinton seeks the following compensatory

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damages: fees incurred in defending the RICO lawsuit; the cost of
the increase in his malpractice insurance premium; compensation for
the harm to his reputation; and compensation for general pain,
anguish, and emotional distress suffered as a result of the
lawsuit.

Compl. ¶¶ 75.

He also seeks punitive damages, alleging

willful and malicious conduct on the part of the defendants.
Compl. ¶ 76.
The defendants have filed an Amended Counter-Claim (docket
entry 112) against the plaintiffs for malicious prosecution in the
bringing of the plaintiffs’ Complaint. The elements of the tort of
malicious

prosecution

under

Mississippi

law

are:

(1)

the

institution of a proceeding (2) by, or at the insistence of, the
defendant,

(3)

the

termination

of

such

proceedings

in

the

plaintiff’s favor, (4) malice in instituting the proceedings, (5)
want of probable cause for the proceedings, and (6) the suffering
of injury or damage as a result of the proceedings.

McClinton v.

Delta Pride Catfish, Inc., 724 So.2d 889, 891 (Miss. 1998).

All

six of these elements must be proven by a preponderance of the
evidence.

Van v. Grand Casinos of Mississippi, Inc., 724 So.2d

889, 891 (Miss. 1998).
As to the third element (termination of proceedings in the
claimant’s favor), “[i]t is axiomatic that a claim for malicious
prosecution does not accrue until the day the underlying proceeding
has been terminated.”

Orix Fin. Servs. v. Allied World Assurance

5

Co., 2005 WL 1923123, *3 (N.D. Miss., Aug. 10, 2005).

Because

there has been no final judgment in the proceeding brought by the
plaintiffs,

the

defendants’

malicious

prosecution

premature and must be dismissed without prejudice.

claim
Id.

is
The

plaintiffs’ motion for summary judgment is therefore moot.
The defendants’ motion for summary judgment asserts, first of
all, that the plaintiffs’ malicious prosecution claim fails as a
matter of law as to both the attorney defendants and their client,
Warnock. Specifically, the defendants claim that they had probable
cause to bring suit against Clinton, and that they were not
motivated by malice.
A motion for summary judgment is appropriately granted when
the moving party demonstrates that there is no genuine issue of
material fact and that the moving party is entitled to judgment as
a matter of law.

Fed. R. Civ. P. 56(c).

The moving party has the

initial burden of identifying relevant portions of the record,
including

the pleadings, depositions, answers to interrogatories,

admissions on file, and affidavits, which it believes demonstrate
the absence of a genuine issue of material fact.

Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986).
A contested fact is “material” when it has the potential to
change the outcome of the case.

Ginsburg 1985 Real Estate P’ship

v. Cadle Co., 39 F.3d 528, 531 (5th Cir. 1994) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

6

An issue is

“genuine” if “the evidence is sufficient for a reasonable jury to
return a verdict for the non-moving party.”

Id.

A motion for

summary judgment is appropriately granted when the moving party
demonstrates that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c).
identifying

relevant

The moving party has the initial burden of
portions

of

the

record,

including

the

pleadings, depositions, answers to interrogatories, admissions on
file, and affidavits, which it believes demonstrate the absence of
a genuine issue of material fact.

Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986).
If the moving party sustains its burden, the burden shifts to
the nonmoving party to show with “significant probative evidence”
that a genuine issue as to a material fact actually exists.
Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir. 1994).

To

overcome summary judgment, the nonmoving party must do more than
simply rely on the pleadings or merely rest “upon conclusory
allegations, improbable inferences, and unsupported speculation.”
Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1449 (5th Cir. 1993).
The nonmoving party must “do more than simply show that there is
some metaphysical doubt as to the material facts.”

Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The non-movant must “designate specific facts showing the existence
of a genuine issue for trial.”

Anderson, 477 U.S. at 250.

7

“The

mere existence of a scintilla of evidence is insufficient to defeat
a properly supported motion for summary judgment.”

Id. at 252.

Moreover, the nonmoving party must make a showing sufficient to
establish the existence of an essential element of its case, an
element on which it will bear the burden of proof at trial.
Celotex, 477 U.S. at 322.
In light of the facts presented by the nonmoving party, along
with any undisputed facts, this Court must decide whether the
moving party is entitled to judgment as a matter of law.

When

deciding a motion for summary judgment, the evidence submitted by
the

nonmoving

party

is

presumed

valid,

and

all

reasonable

inferences that may be drawn from that evidence must be drawn in
favor of the party opposing summary judgment.
at 255.

The district court, therefore, must not “resolve factual

disputes by weighing conflicting evidence,
province

Anderson, 477 U.S.

of

evidence.”
Cir. 1980).

the

jury

to

assess

the

... since it is the

probative

value

of

the

Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th
Summary judgment is improper where the court merely

believes it unlikely that the nonmovant will prevail at trial.
National Screen Serv. Corp. v. Poster Exchange, Inc., 305 F.2d 647,
651 (5th Cir. 1962).

By contrast, summary judgment for the moving

party is only proper when a rational jury, looking at the record as
a whole, could not find for the nonmoving party. Matshushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

8

“The [Mississippi] supreme court has pronounced that malicious
prosecution
Funderburk

actions
v.

must

Johnson,

2006)(citation

be

935

omitted).

‘managed
So.2d

This

with

1084,

is

great

1097

because

caution.’”

(Miss.

“the

Ct.App.

threat

of

a

malicious prosecution suit may deter citizens from attempting to
bring wrongdoers to justice, necessitating a cautious approach to
these suits.”

Id.

“Probable cause in the context of a malicious prosecution case
requires the concurrence of an honest belief in the guilt of the
person accused and reasonable grounds for such belief.”
Communications,

Inc.

v.

Times

Fiber

Communications,

Trilogy
Inc.,

47

F.Supp.2d 774, 778 (S.D. Miss. 1998)(citations omitted). “Probable
cause is determined from the facts apparent to the observer when
the prosecution is initiated.”
843, 846 (Miss. 1983).

Owens v. Kroger Company, 430 So.2d

When the facts are undisputed, the court

decides whether probable cause existed.

Nassar v. Concordia Rod

and Gun Club, Inc., 682 So.2d 1035 (Miss. 1996). The term “malice”
refers to the defendant’s objective in bringing the proceeding
against the plaintiff.

It “does not refer to mean or evil intent

as a layman might ordinarily think.”
at 780.

Trilogy Comm., 47 F.Supp.2d

It is a term of art that “refers to the defendant’s

objective, not his attitude.” Strong v. Nicholson, 580 So.2d 1288,
1293 (Miss. 1991).
In this case, the defendants have shown that they were aware

9

of a statewide pattern of conduct between Stokes and Clinton, in
Alabama, and State Farm, in Illinois, and reasonably believed that
these

two

separate

entities

were

operating

together

as

an

enterprise to obtain an unlawful purpose, i.e, naming parties in
lawsuits who were not liable in an effort to obtain money from
them.

The defendants were aware that Warnock had been sued by

State Farm, represented by Clinton, and that others in similar
circumstances had been sued by the same entities.

They also had

reason to believe Stokes and Clinton and/or State Farm used the
U.S. Mails in furtherance of the alleged scheme.
Ultimately, the RICO suit against Clinton and Stokes and State
Farm was dismissed. However, this Court need not determine whether
the grounds raised by the defendants in their suit against the
plaintiffs “were legally correct and of unquestionable validity.”
Presley v. South Central Bell Telephone Co., 684 F.Supp. 1397, 1401
(S.D. Miss. 1988).
asserted

were

principles.

All that is necessary is that the claims

arguably

Id.

cognizable

based

on

applicable

legal

In this Court’s opinion, the claims put forward

by the defendants in their RICO action, based on the facts they
then believed existed, were not unreasonably asserted, even if they
were ultimately found to be without merit.

They were at least

arguably valid, which leads the Court to conclude that, as a matter
of law, the defendants had probable cause to institute the RICO
action.

10

The plaintiffs have produced no evidence to contradict this
finding.

Moreover, they have failed to present a particularized

argument that a genuine issue of material fact exists regarding
malice or probable cause.
underlying RICO action.

Instead, they argue the merits of the
The defendants may have been ultimately

incorrect in the RICO suit, but their actions do not show that they
acted with malice. See Funderburk, 935 So.2d at 1097-98 (affirming
directed verdict for insufficient evidence of malice). “In a civil
suit, a plaintiff is always seeking his own ends. For this reason,
more latitude is generally permitted respecting motivation in the
bringing of civil suits for purposes of the malice issue in
malicious prosecution cases.”

Trilogy Comm., 47 F.Supp.2d at 780.

The plaintiffs have simply not proven that the defendants acted
with malice, nor have they proven that the defendants lacked
probable cause.

Their malicious prosecution claim is without

merit.
The plaintiffs also bring a claim for abuse of process.

An

abuse of process claim requires the plaintiff to “prove the
following elements by a preponderance of the evidence: (1) the
defendant made an illegal use of process, (2) the defendant had an
ulterior motive for exercising such illegal use of process, and (3)
damage resulted from the perverted use of process.”

Miles v. Paul

Moak of Ridgeland, Inc., 2012 WL 4075169, *4 (Miss. Ct.App. Sept.
18, 2012)(citation omitted).

The difference between malicious

11

prosecution and abuse of process is that “malicious prosecution”
concerns maliciously causing process to issue, while “abuse of
process” concerns the improper use of process after it has been
issued.

Dunagin v. City of Oxford, Miss., 489 F.Supp. 763 (N.D.

Miss. 1980).
The plaintiffs have made no demonstration or argument as to
what improper use of process occurred after the initial process
(summons) was issued.

It is the intentional use of legal process

for an improper purpose which is incompatible with the lawful
function of the process by a person having an ulterior motive in
doing so, with corresponding damages.

McCornell v. City of

Jackson, Miss., 489 F.Supp.2d 605 (S.D. Miss. 2006). In this case,
the only process issued was the initial summons when the RICO
action was initiated.

The plaintiffs point to no perverted use of

process after the summons was issued, and their claim is therefore
without merit. See Austin Firefighter’s Relief and Retirement Fund
v. Brown, 760 F.Supp.2d 662, 676-77 (S.D. Miss. 2010)(simply filing
suit and continuing to prosecute it cannot form the basis for an
abuse of process claim).
As for the plaintiffs’ intentional infliction of emotional
distress claims, the underlying actions by the defendants all
occurred more than three years before this action was commenced on
June 15, 2011 (Clarion Ledger advertisement in 2007; motion for
sanctions in Warren County case prior to Clarion Ledger ad in 2007;

12

RICO action in January of 2008). Thus, both Mississippi’s one year
and three year statutes of limitation bar the claims asserted by
the plaintiffs. Furthermore, “[n]o continuing duty exists to force
an attorney to abandon a claim if it later appears to be without
merit.”

Rose v. Tullos, 994 So.2d 734, 739 (Miss. 2008).

The only avenue left for the plaintiffs is to prove conduct
“so outrageous in character, and so extreme in degree as to go
beyond

all

possible

bounds

of

decency,

and

be

regarded

as

atrocious, and utterly intolerable in a civilized community.”
Jones v. Mullen, 100 So.3d 490 (Miss. Ct.App. 2012)(citing Langston
v. Bigelow, 820 So.2d 752 (Miss. Ct.App. 2002)).
indignities,

threats,

annoyances,

petty

“[M]ere insults,

oppression

or

other

trivialities” are not enough to support a claim for intentional
infliction of emotional distress.

Id.

“Liability for intentional infliction of emotional distress
will

not

be

imposed

upon

exercising his legal rights.”

an

actor

doing

nothing

more

than

Senseney v. Mississippi Power Co.,

914 So.2d 1225, 1230 (Miss. Ct.App. 2005).

In this case, the

defendants were simply exercising their legal rights in running a
newspaper ad and filing legal proceedings. The plaintiffs have not
shown any act by the defendants so egregious as to evoke outrage or
revulsion, nor any act so extreme in degree as to go beyond all
possible bounds of decency or be regarded as atrocious and utterly
intolerable in a civilized society.

13

Their claims for intentional

infliction of emotional distress therefore fail.
Accordingly,
IT IS HEREBY ORDERED that the defendants’ Amended CounterClaim

(docket

entry

112)

is

dismissed

without

prejudice

as

premature;
FURTHER ORDERED the plaintiffs’ motion for summary judgment
(docket entry 103) is MOOT;
FURTHER ORDERED that the motions for summary judgment filed by
defendants David M. Sessums and Varner, Parker & Sessums, P.A.
(docket entry 94), Tamra Warnock (docket entry 95), and W. Richard
Johnson, Sr. (docket entry 96) are GRANTED, and this civil action
is dismissed with prejudice.
A Final Judgment dismissing the plaintiffs’ Complaint with
prejudice, and dismissing the defendants’ Amended Counter-Claim
without prejudice, shall follow.
SO ORDERED, this the 29th day of September, 2014.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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