author: FOIL, J.

text:
    Thomas MENSON, et al. v. Wendell K. and Rosie J. TAYLOR, Capital Transportation Corporation and XYZ Insurance Company.
    No. 2002 CA 1457.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Rehearing Denied July 30, 2003.

      Terry L. Bonnie, Scott Fruge, Baton Rouge, for Appellees Plaintiffs Thomas Menson and Gloria Menson.
    Michael Colvin, Baton Rouge, for Appellant Defendant State Farm Fire and Casualty Co.
    Wendell G. Lindsay, Jr., Baton Rouge, for Appellants Defendants Capital Transportation Corporation, et al.
    Donald R. Smith, Baton Rouge, for Wendell K. Taylor and Rosie J. Taylor.
    Panel composed of Judges FRANK FOIL, JAMES E. KUHN and WILLIAM F. KLINE, Jr.
   FOIL, J.

This appeal challenges a damage award entered against an employer for an intentional tort committed by one employee on his fellow employee. We affirm.

BACKGROUND

This lawsuit stems from an incident involving two employees of Capital Transportation Corporation (CTC). On March 20, 1996, Wendell Taylor, a CTC bus driver, was driving a bus on the Tigerland route at the LSU campus in Baton Rouge. According to Taylor, he was preparing to make what he thought was his final run of the day when he was told by his supervisor, Yvonne Parns, he would have to make an additional trip. Mr. Taylor stated that after picking up several passengers, he was so angry over having to drive the additional route he became teary eyed and pulled the bus over to the side of the road to avoid possible injury to his passengers.

Soon thereafter, Thomas Menson, a CTC route supervisor, saw the bus parked on the side of the road and pulled his vehicle behind the bus. He went to question Taylor to see if anything was wrong with the bus. Taylor advised Menson that the bus was running well; however, he wanted to know why he had to make another trip. Menson did not offer a reason but simply told Taylor to drive the bus and headed back towards his car.

Taylor and Menson offered vastly different accounts of the events that transpired thereafter. According to Menson, Taylor ran towards him screaming, grabbed his neck, threw him to the ground and jumped on his leg and knee. Menson stated that Taylor straddled his body, and began slapping him, threatening to kill him. At the time of the incident, Menson was 55 years old and weighed 185 pounds, while Taylor was in his thirties and weighed about 280 pounds.

Taylor, however, stated that he merely walked up to Menson and grabbed Men-son’s shirt to get his attention to find out why he had to make the additional trip. He admitted that he ripped Menson’s shirt, and stated |3that Menson merely slipped and fell to the ground. He insisted that he had no intention of hurting Men-son, and denied ever getting on top of Menson, hitting him or doing anything to Menson’s ankle or shoulder. He stated that after Menson fell, Menson remained on the ground, still talking on his radio to headquarters.

Following the incident, Menson was taken to a medical clinic, where x-rays revealed two broken bones in his foot. He also sustained knee and shoulder pain as a result of the encounter. Taylor was arrested by LSU Police for assault.

On December 27, 1996, Menson and his wife, Gloria, filed this tort suit seeking damages against Taylor, Taylor’s wife, and CTC. They later added as a defendant State Farm Fire & Casualty Company (State Farm), the Taylors’ homeowner’s insurer.

State Farm filed a motion for summary judgment, which was granted by the trial court. State Farm appealed, and this court affirmed the dismissal of State Farm from the action in Menson v. Taylor, 1999-0300 (La.App. 1 Cir. 4/17/00), 764 So.2d 1079 (hereafter referred to as Menson I). In that case, we held that regardless of which version of the incident one believed, State Farm was not hable. This court specifically found that if Taylor’s version was accepted, the mere “grabbing incident” he described was clearly a “work-related” accident, and as worker’s compensation would be Menson’s exclusive remedy against Taylor, State Farm likewise was immune from tort suit.

However, this court stated, if Menson’s version of the incident was accepted, which described a violent physical attack by Taylor, the State Farm policy clearly and unambiguously excluded coverage for bodily injury resulting from “willful and malicious acts of the insured.” This court stated that there could be no doubt that the actions of one who violently attacked another person from behind, throwing that person to the ground, jumping on l4him and breaking his ankle, striking him and threatening to kill him are both willful and malicious.

Prior to trial, the Mensons filed a motion in limine arguing that this court held in Menson I that Menson and Taylor were in the course and scope of their employment at the time of the incident, and therefore, the Taylors and CTC should be precluded from arguing to the contrary at all phases of the trial. The trial judge ruled that this court had indeed held that Taylor was in the course and scope of his employment with CTC at the time of the incident, and therefore, CTC was vicariously liable if Taylor acted intentionally. That ruling, the judge concluded, was the law of the case, and she precluded CTC from offering evidence regarding Taylor’s job duties for CTC and CTC’s objectives. She stated that the jury would decide whether Taylor’s actions were intentional and the amount of damages due Thomas Menson. Because the parties stipulated prior to trial that Gloria Menson’s claim was less than $60,000.00, that issue was to be decided by the trial judge.

Following the presentation of the evidence, the jury returned a verdict finding that Taylor’s actions were intentional, and awarding Thomas Menson damages in the amount of $266,850.33. The jury assessed 90% fault to Taylor and 10% to Menson. CTC was given a credit of $1Í8,246.78, representing 90% of the total medical expense and worker’s compensation indemnity payments made by CTC, as stipulated to by the parties. The judge dismissed Gloria Menson’s consortium claim, finding that she failed to sustain her burden of proving she was entitled to such damages.

This appeal, taken by CTC and Gloria Menson, followed.

| .LAW OF THE CASE

At the outset, we address the trial judge’s application of the law of the case doctrine so as to preclude a determination of CTC’s vicarious liability. CTC argues that the law of the case doctrine did not apply in this case, citing Trans La. Gas v. La. Insurance Guaranty Association, 96-1477, p. 6 (La.App. 1 Cir. 5/9/97), 693 So.2d 893, 896. In that case, this court made it clear that the principle is applicable to prior rulings disposing of identical issues in the same proceeding involving the same parties. The doctrine should not apply, CTC argues, because the issues were not identical and the earlier appeal involved rights and obligations of different parties.

We agree. This court’s decision in Menson I did not address the issue of CTC’s vicarious liability. Rather, that case dealt only with the issue of whether Taylor’s homeowner’s insurer was entitled to dismissal by summary judgment. This court held that regardless of which version of the incident the jury believed, the insurer could not be held liable as a matter of law. Further, the appeal involved different parties. Therefore, we find that the trial judge erred in applying the law of the case principle to preclude CTC from addressing .the vicarious liability issue at trial.

VICARIOUS LIABILITY

In finding Taylor’s actions to be intentional, the jury obviously accepted Men-son’s version of the incident which described a brutal attack on him by a fellow employee. This finding has not been appealed. At issue in this appeal is whether CTC can be held vicariously liable for Taylor’s intentional, physical attack on his supervisor. This court will consider the evidence proffered by CTC on the vicarious liability issue, along with the evidence in the record, and determine de novo whether CTC is vicariously hable for Taylor’s intentional tort. See, Gonzales v. Xerox, 320 So.2d 163, 165 (La.1975).

An employer is not vicariously liable merely because his employee commits an intentional tort on the business premises during working hours. R Under the jurisprudence, an employer is responsible for an employee’s intentional tort when the conduct is so closely connected in time, place and causation to the employment that it constitutes a risk of harm attributable to the employer’s business. LeBrane v. Lewis, 292 So.2d 216 (La.1974). In LeBrane, 292 So.2d at 218, the court considered the following factors in holding an employer liable for its supervisor’s actions in stabbing a co-employee:

(1) whether the tortious act was primarily employment rooted;
(2) whether the act was reasonably incidental to the performance of the employee’s duties;
(3) whether the act occurred on the employer’s premises; and
(4) whether it occurred during the hours of employment.

It is not necessary that all four factors be met in order to find liability. Baumeister v. Plunkett, 95-2270, p. 4 (La.5/21/96), 673 So.2d 994, 997.

The third and fourth factors are easily met in this case, as the altercation occurred during working hours along CTC’s transportation route. We next determine whether Taylor’s actions were primarily employment-rooted.

Workplace violence is not primarily employment-rooted merely because the violence occurred at work as the result of an incident that took place at work. Instead, to be primarily employment-rooted, courts look to the degree to which the tortious act was prompted by an employee’s purely personal considerations as opposed to an employee’s duties and the employer’s interests. Guy v. Mitchell, 35,713, p. 6 (La.App. 2 Cir. 3/1/02), 810 So.2d 1245, 1248.

Where an altercation between two employees occurs during work hours and on the business premises, and that altercation can be said to be employment-rooted, vicarious liability generally has been found. See Benoit v. Capitol Manufacturing Company, 617 So.2d 477 (La.1993) (imposing vicarious liability on an employer where two co-employees fought over whether a door to the workplace should be left open because of the temperature; the court found the intentional act was employment-rooted |7where the temperature of the workplace was an employment issue); LeBrane v. Lewis, supra (imposing vicarious liability on an employer where the tort evolved out of a dispute relating to the employment; the employee who committed the violent act was acting for his employer in the discharge of a recalcitrant co-employee).

In this case, Taylor’s attack on Menson was clearly employment-rooted. Taylor did not want to drive an additional route and Menson ordered him to drive the route. The dispute thus directly arose out of Taylor’s duty to provide transportation on behalf of CTC. Because the attack evolved out of a transportation dispute between two employees of a transportation company, occurring during work hours and on the work premises, we conclude that the intentional tort is one that can be fairly attributable to CTC’s business. Therefore, we hold that CTC is vicariously liable for Taylor’s intentional tort.

EVIDENTIARY ISSUES

CTC contends that Menson’s damages should be reduced, urging that the trial court should have allowed it to introduce evidence showing that Menson had a habit of dealing with other employees in an abrasive, abusive manner, which, CTC insists, likely fueled the attack by Taylor. The trial judge sustained Menson’s objection that this was impermissible character evidence. CTC asks this court to review the excluded evidence and impose 50% liability on Menson for provoking the incident.

Taylor testified that there were no personal issues or problems between himself and Menson other than the driving of the additional route. There is no evidence to indicate that Menson behaved abrasively or abusively toward Taylor prior to the altercation. In fact, Menson simply ordered Taylor to drive the bus and refused to give him a reason. Thus, any other incidents in which Menson may have dealt harshly with other employees on other occasions are not relevant in this case, and were properly excluded by the trial court.

Lastly, CTC contends that the trial judge erroneously precluded it from offering evidence that Menson received disability insurance payments. CTC argues that Menson’s receipt of such benefits explains why he “dragged his feet” in returning to work. CTC asks this court to reduce Menson’s award for lost income by the amount of damages he failed to mitigate. However, we find that the trial judge correctly applied the collateral source rule to exclude evidence of disability payments. See Aucoin v. Doerner, 98-255 (La.App. 5 Cir. 8/25/98), 717 So.2d 1239. Furthermore, the jury obviously considered Menson’s ability to mitigate his damages when it awarded him only $35,000.00 in past lost earnings, although the stipulated amounts were in excess of $80,000.00.

LOSS OF CONSORTIUM CLAIM

Gloria and Thomas Menson were married in 1991 and at the time of the trial, a divorce proceeding was underway. Gloria testified that prior to the incident, she and her husband had an active sex life, went out to dinner and movies and traveled. After the incident, she stated, her husband became hostile and irritable, and began staying out all night. Both Gloria and Thomas testified they no longer had sex after the attack because of Thomas’ depression, which was fueled by the financial hardships he experienced because of the accident.

The record also reflected that Menson suffered from an aneurism in his stomach, not related to the work-incident, and was not able to work for a significant period of time. Menson stated in an earlier deposition that he and his wife continued to have sex after the accident on a regular basis, which ceased after the aneurism was diagnosed.

The trial judge found that Gloria Men-son failed to prove that she suffered a loss of love and affection, society and companionship, sex and support. The judge noted that the marriage was of a short duration and was beset with problems from the outset. Considering the evidence, we find no |9error in the judge’s conclusion that appellant failed to meet her burden of proof, and we may not disturb that ruling.

CONCLUSION

Based on the foregoing, the judgment appealed from is affirmed. All costs of this appeal are assessed to appellant, Capitol Transportation Corporation.

AFFIRMED.

Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

      . Prior to trial, CTC filed a motion for summary judgment on the issue of vicarious liability, The motion was denied by the trial court. CTC sought writs to this court, which were denied. Menson v. Taylor, 00-0662 (La.App. 1 Cir. 8/24/00). Writs were also denied by the Supreme Court. Menson v. Taylor, 2000-2685 (La. 11/17/00), 774 So.2d 983.


source: Caselaw Access Project

author: SMITH, P.J., for the Court. McRAE, P.J.,

license: Public Domain

text:
    The Matter of the Petition for REINSTATEMENT to the Practice of Law OF William F. WATKINS.
    No. 2001-BR-01894-SCT.
    Supreme Court of Mississippi.
    Aug. 1, 2002.
    Thomas M. Murphree, Jr., attorney for appellant.
    Michael B. Martz, attorney for appellee.
   SMITH, P.J., for the Court.

¶ 1. William F. Watkins was disbarred on November 6, 1991, following his pleading guilty to three felony counts of financial institution fraud and making false statements to influence the actions of a federally insured financial institution. Watkins has now petitioned the Mississippi Bar for reinstatement. The Mississippi Bar opposes his reinstatement.

FACTS

¶2. In 1991, William F. Watkins pled guilty to three counts of a six-count indictment in the U.S. District Court for the Eastern District of Louisiana for financial institution fraud and making false statements to influence the actions of a federally insured financial institution. His fraudulent transactions were extensions of his oil and gas exploration and production business in South Mississippi during the 1980s. Watkins was fined $10,000 and sentenced to spend six months in a halfway house. He was also ordered to pay restitution in the amount of $27,174.54 to Southeast National Bank of Hammond, Louisiana, and $107,335.00 to Pelican Homestead of Metairie, Louisiana, and he had to pay a mandatory assessment of $150.00. In addition, Watkins was required to perform 300 hours of community service, obtain approval from a probation officer before incurring new or additional credit, to provide a financial statement to the probation officer twice a year, and to report to the probation officer any transaction involving the sale of personal, familial, or business property. On November 6, 1991, this Court entered an order disbarring Watkins from membership in the Mississippi Bar and removed his privilege to practice law in Mississippi. Watkins v. Miss. Bar, 589 So.2d 660 (Miss.1991). Watkins complied with his sentence, paying the $10,000 dollar fine in full, spending time in halfway houses in Jackson and New Orleans, and completed his community service requirements. Watkins has paid the following restitution: $7,500.00 to Deposit Guaranty National Bank (now AmSouth Bank), $999.49 to First Bank of McComb, and $27,174.54 to Southeast National. The point of contention between Watkins and the Bar is whether he has paid Pelican Homestead Bank its full amount of restitution.

¶ 3. Pelican Homestead extended a line of credit in the amount of $135,000.00 to Watkins in 1983, and this line of credit is the main portion of the financial dealings that led to Watkins’s criminal indictment and disbarment. Following his conviction, Watkins was ordered to pay restitution to Pelican Homestead in the amount of $107,335.00. However, he only paid Pelican Homestead $10,000.00 before the Bank became insolvent and was taken over by the Federal Deposit Insurance Corporation (FDIC).

¶4. On July 7, 1999, Watkins and the FDIC entered into an agreed compromise and settlement reducing Watkins’s obligation to Pelican Homestead to $35,000.00. On July 12, 1999, the United States District Court for the Eastern District of Louisiana entered an Amended Judgment and Commitment Order amending that court’s June 13, 1991, order to read “the defendant is to make restitution to the Federal Deposit Insurance Corporation to be paid in a single lump sum payment of $35,000.00 in the form of a cashier’s check payable to the United States Department of Justice, within 45 days following entry of this order, or on August 23 1999, whichever date is later.” This amount was paid by Watkins on August 23,1999. Watkins’s reasoning behind this settlement was that he never received credit for the amount realized by the bank on the oil and gas production fields that the bank received when he defaulted on the loan; and therefore, the actual amount lost by the bank was significantly less than $107,335.00. The main issues in this case are whether the settlement agreement reached with the FDIC constitutes full restitution to a person or entity that was harmed by Watkins’s wrongful conduct, and whether he still must pay the $97,335.00 (now $62,335.00) to Pelican Homestead.

¶ 5. Watkins’s petition for reinstatement includes over thirty letters of recommendation from members of the Bar, residents of Pike County, the President of Southwest Community College, teachers at South Pike High School, and former South Pike High School Moot Court team members. Those letters detail Watkins’s involvement in the community since his disbarment. One of the instances cited as evincing a rehabilitated moral character is Watkins’s involvement with the South Pike High School Mock Trial team from 1991 to 1993. During his involvement with this team, he helped them to finish second in the state his first year, third in the nation at the national competition his second year, and to win the national championship his third year. Another community service that Watkins’s petition points to is his involvement with the McComb Interdenominational Care Association’s (MICA) Food Pantry. He notes to his increased involvement over the years with MICA, moving from financial contribution, to stocking food and preparing meals, to delivering firewood to the needy of Pike County. Those are the only two community involvements that Watkins cites to as evidencing a rehabilitated character.

¶ 6. The Court has also received two unsolicited letters opposing Watkins’s reinstatement to the Bar, but those letters concern dealings between Watkins and his family members that occurred before he was disbarred. Since the opposing letters are not relevant to the question of whether Watkins has rehabilitated himself, this Court will not rule on the merits of those accusations.

BAR’S POSITION

¶7. The Mississippi Bar opposes Watkins’s petition because it believes he has failed to demonstrate that he has met the necessary prerequisites for reinstatement: (1) he has not made full amends and restitution; and, (2) he has not demonstrated the requisite moral character to be reinstated.

STANDARD OF REVIEW

¶ 8. The standard of review in cases of attorney reinstatement to the bar is well settled:

The Supreme Court of Mississippi (the Court) has exclusive and inherent jurisdiction of matters pertaining to attorney discipline, reinstatement, and appointment of receivers for suspended and disbarred attorneys. When reviewing disciplinary matters this Court reviews the evidence de novo, on a case-by-case basis sitting as triers of fact.

In re Smith, 758 So.2d 396, 397 (Miss.1999) citing In re Pace, 699 So.2d 593, 595 (Miss.1997).

DISCUSSION

¶ 9. The requirements for petitions for reinstatement to the Bar are:

All reinstatement petitions shall be addressed to the Court, shall state the cause or causes for suspension or disbarment, give the names and current addresses of all persons, parties, firms, or legal entities who suffered pecuniary loss due to the improper conduct, the making of full amends and restitution, the reasons justifying reinstatement, and requisite moral character and legal learning to be reinstated to the privilege of practicing law. Upon filing, the petition shall be served on, and an investigatory fee $500.00 shall be paid to the Bar, same to be in addition to any other sum due the Bar, or persons injured by the petitioner’s improper conduct. The matters set out in this paragraph shall be jurisdictional.

Miss. R. Discipline. 12.7. The burden of proving that he has rehabilitated himself and regained the requisite moral character sufficient to entitle him to reinstatement is upon the petitioner. In re Parsons, 797 So.2d 203, 205 (Miss.2000)(citing Burgin v. Miss. State Bar, 453 So.2d 689, 690 (Miss.1984)). For reinstatement petitions, “the fundamental question to be addressed before reinstatement is the attorney’s rehabilitation in conduct and character since the disbarment.” Burgin, 453 So.2d at 691 citing Mississippi State Bar Ass’n v. Wade, 250 Miss. 625, 167 So.2d 648 (1964). To prove moral rehabilitation, the attorney must show “a firm resolve to live a correct life evidenced by outward manifestation sufficient to convince a reasonable mind clearly that the person has reformed.” In re Underwood, 649 So.2d 825, 828-29 (Miss.1995). Disbarment “serves to help preserve the dignity and reputation of the legal profession and also ensures protection of the public from such conduct.” In re Baker, 649 So.2d 850, 853 (Miss.1995).

¶ 10. While not applicable in this case, it is worth noting that this Court has recently amended Rule 12 of the Mississippi Rules of Discipline. The new amendment states that:

an attorney who has been disbarred for conviction of a felony criminal offense which occurred after April 4, 2002, in a court of this state or any other state, or a court of the United States for any felony crime a necessary element of which, as determined by a statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, the sale or distribution of a controlled substance or an attempt, conspiracy or solicitation of another to commit such a crime, shall be ineligible for reinstatement to the practice of law.

Miss. R. Discipline 12(c) (as amended April 4, 2002). While this case deals with a conviction for just such a crime that occurred well before the effective date, it is worth publishing as notice to other attorneys. There is no need for this Court to reach the issue of whether Watkins has morally rehabilitated himself to the level that he may practice law again because the issue of whether Watkins has made complete restitution is jurisdictional and requires the denial of the petition.

¶ 11. This Court has addressed the reinstatement to the bar of an attorney who had been disbarred for embezzling clients funds. In re Morrison, 819 So.2d 1181, 2001 WL 954172 (Miss.2001). In that case this Court observed that “Morrison has failed to satisfy us that he has effectively rehabilitated himself.... In coming to this conclusion we note the seriousness of his offense. While the felony embezzlement charges were dismissed or nolle prose-quied, these were felony level charges involving fraud, deceit, and dishonesty, which he also attempted to hide from an investigation.” Id. Similarly, Watkins confessed to crimes of federal financial institution fraud and lying to a federally insured lending institution which, likewise, involved fraud, deceit, dishonesty, and behavior of the nature must be most strenuously defended against by the Bar.

¶ 12. We now consider the issue of whether Watkins has made full restitution. In defining what constitutes “full amends and restitution” we apply the plain meaning rule. In re Baker, 649 So.2d at 858. This Court has held that the plain meaning rule required the disbarred attorney to “make complete and total restitution to all parties who suffered pecuniary loss.” Id. Baker involved the issue of whether an attorney had to pay restitution to a bank that, subsequent to his disbarment, had merged with another bank. Id. at 854. This Court found there that “despite the fact that First Mississippi National Bank merged with the Bank of Mississippi, Baker still owes the money.” Id. There is no reason to find in Watkins’s case that the same standard would not apply to the FDIC’s and Pelican Homestead’s relationship.

¶ 13. Watkins’s reliance on In re Pace is not instructive because there the disbarred attorney settled a pre-existing debt and negotiated a release from any future malpractice liability for an amount that was greater than the pecuniary loss suffered by the client. In re Pace, 699 So.2d at 596. Pace is not instructive because Watkins settled for significantly less, not more, than the original restitution award.

¶ 14. The major hurdle facing Watkins’s petition for reinstatement is whether his compromise agreement with the FDIC meets the jurisdictional requirement that he has made full amends and restitutions to entities suffering pecuniary loss. Watkins maintains that the settlement agreement and order entered in the United States District Court for the Eastern District of Louisiana amounts to full restitution to Pelican Homestead. However, the Bar’s argues that Watkins has failed to meet his burden of proof that he has made full financial restitution.

¶ 15. Petitioners for reinstatement to the Bar have the burden of proving that they have met all the jurisdictional requirements of Rule 12.7. The cursory order entered by the U.S. District Court in the Eastern District of Louisiana, by itself, does not satisfy this burden. Since the petitioner did not include any financial evidence that the $85,000.00 amount reached as settlement with the FDIC was equal to the financial liability incurred by Pelican Homestead, his burden has not been met. The petition does not include any evidence of the amount that Pelican Homestead realized off the oil and gas production, nor does it show any other reason Watkins was not liable for less than the $107,335.00. Watkins contends in his deposition taken by the Mississippi Bar that this amount reflects the financial loss incurred by the lending institution in his fraudulent dealings with them. However, the petitioner in reinstatement cases has a heavier burden than simple assertions. Watkins must submit proof of this assertion. Watkins claims that he never received credit for the amount realized by the bank on the oil and gas production fields that the bank received which Watkins defaulted on the loan. However, he offered no proof of this claim. Until Watkins can present evidence that the amount agreed upon with the FDIC represents the financial loss that Pelican Homestead actually suffered, his burden has not been met.

¶ 16. Therefore, since the petitioner has failed to meet the jurisdictional requirement of Rule 12.7 that he has made full restitution to entities suffering a pecuniary loss by his actions, his petition must be denied.

CONCLUSION

¶ 17. The petitioner for reinstatement has the burden of proof to show that he has met all the jurisdictional requirements of Rule 12.7. Until Watkins can prove that the financial loss suffered by Pelican Homestead is equal to the amount of restitution paid to the FDIC, he has failed to meet his burden of proof. Therefore, his petition for reinstatement to the practice of law is denied.

¶ 18. PETITION FOR REINSTATEMENT TO THE PRACTICE OF LAW DENIED.

PITTMAN, C.J., WALLER, COBB, DIAZ, CARLSON AND GRAVES, JJ., CONCUR. EASLEY, J., CONCURS IN RESULT ONLY. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION.

McRAE, P.J.,

Dissenting:

¶ 19. Because the majority errs in finding on this record that Watkins has not made restitution, I respectfully dissent.

¶ 20. Pelican Homestead Bank ultimately became insolvent and was taken over by the FDIC, putting the FDIC in the shoes of the bank. The federal court had originally ordered $107,335.00 in restitution. However, an amended order was entered reducing the amount of restitution from $107,335.00 to $35,000.00, after the FDIC and Watkins reached a compromise and settlement in that amount. Watkins paid the $35,000 as ordered. Since the federal court entered the order, all parties agreed that the figure in controversy was $35,000.00, and the FDIC, the only remaining party involved, has been satisfied as agreed and as ordered by the federal court, one can only ask to whom or where is Watkins to pay any additional money?

¶ 21. This Court has granted a petition for reinstatement even though the petitioner, Baker, had not yet made “full amends and restitution.” In re Baker, 649 So.2d 850, 854 (Miss.1995). There, the parties to the controversy that led to Baker’s disbarment disputed an amount due as part of restitution. Here, there is no longer any dispute between the remaining parties, the FDIC and Watkins, as to any remaining restitution due. The parties agreed on a settlement amount, the federal court accepted the compromise, and Watkins paid that amount. Restitution has been satisfied. I, therefore, dissent as to this issue.


author: COBB, J., for the Court.

text:
    Michael SALTS, Alice Marie Salts and Salts Funeral Home, Inc. v. GULF NATIONAL LIFE INSURANCE COMPANY, Selected Funeral Insurance Company, Jeremiah O’Keefe, Estate of James C. Maxey, Booneville Funeral Home, Phillip Duncan, Stan Howell and William McDonald.
    No. 2001-CA-00021-SCT.
    Supreme Court of Mississippi.
    Aug. 8, 2002.

      K. David Sawyer, Birmingham, AL, Scott Watson Weatherly, Jr., Gulfport, Attorneys for Appellants.
    Michael A. Heilman, Jackson, Marc A. Biggers, Greenwood, Attorneys for Appel-lees.
    Before PITTMAN, C.J., COBB and CARLSON, JJ.
   COBB, J., for the Court.

¶ 1. On January 30, 1990, Michael Salts, Alice Marie Salts, and Salts Funeral Home, Inc. (“the Salts”) and Gulf National Life Insurance Company (“Gulf National”) entered into an exclusive written agreement whereby the Salts agreed to sell Gulf National life and burial insurance policies in the Tupelo trade area, particularly in Prentiss County, Mississippi. On June 28, 1996, the Salts filed a complaint in the Hinds County Circuit Court, First Judicial District, alleging that Gulf National, d/b/a Selected Funeral Insurance Company, had denied the exclusivity of their agreement and entered into conflicting contracts with others. Ultimately seven defendants were named and, after two and a half years of discovery disputes and an interlocutory appeal to this Court on the question of venue, the Hinds County Circuit Court granted Gulf National’s motion to dismiss on the grounds that the Salts had willfully failed to comply with the court’s order to submit to depositions on February 2-3, 2000. Aggrieved by that order, the Salts appealed, asserting as their sole assignment of error that it was an abuse of discretion for the trial court to grant Gulf National’s motion to dismiss.

¶ 2. Because the order of dismissal neither explicitly dismissed all of the defendants in the action, nor was it certified as a final judgment under M.R.C.P. 54(b), the appeal is not properly before the Court and must be dismissed.

FACTS

¶ 3. On July 17, 2000, after four years of procedural turmoil punctuated by innumerable examples of failure to communicate, with each side blaming the other, this case came before the Hinds County Circuit Court for hearing on Gulf National’s motion to dismiss which alleged that the Salts repeatedly attempted to thwart discovery and faded to comply with court orders. Argument was heard from attorneys representing the Salts, as well as attorneys representing defendants Gulf National, Jeremiah O’Keefe, Booneville Funeral Home, Phillip Duncan and “a couple of more individuals named as defendants.”

¶ 4. On December 4, 2000, the Hinds County Circuit Court entered an order of dismissal on the motion, the text of which is reproduced here verbatim:

THIS CAUSE came on to be heard on Defendant, Gulf National Life Insurance Company’s Motion to Dismiss. This Court, having heard and considered the motion, the Memorandum Brief in Support of the motion, the Plaintiffs Response in Opposition to said motion, the Plaintiffs Supplemental Response in Opposition to said motion, the Defendant’s Rebuttal in support of said motion, and the arguments of counsel for the parties, and being fully advised is of the opinion that the motion [is] well taken and should be GRANTED. The Court finds that the motion should be granted for the reasons and arguments set forth by the Defendant, Gulf National Life Insurance Company in its Motion to Dismiss, the Memorandum Brief in support of the motion, the Rebuttal in support of said motion, and the arguments of counsel at the hearing on July 17, 2000.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Defendant, Gulf National Life Insurance Company’s Motion to Dismiss, should be and the same is hereby GRANTED.
SO ORDERED AND ADJUDGED on this the 1st day of December, 2000.

¶ 5. Gulf National filed its motion to dismiss on February 11, 2000. On February 28, 2000, defendants Prentiss Funeral Home Directors, Inc., Philip Duncan, William McDonald, and Stan Howell filed their joinder in Gulf National’s motion to dismiss. Named defendants not participating in the joinder included Jerry O’Keefe, the CEO of Gulf National, and the Estate of James C. Maxey (the President of Gulf National, who died during the proceedings).

¶ 6. The appellate record shows no filings by defendants other than Gulf National between February 28, 2000, and December 4, 2000, when the motion to dismiss was granted. As is apparent, the order of dismissal mentioned no other defendants. Nothing in the record before the Court indicates a Rule 54(b) certification of the order of dismissal. And none of the parties raised this omission as an issue on appeal.

DISCUSSION

¶ 7. When faced with the same procedural situation in Gilchrist v. Veach, 754 So.2d 1172 (Miss.2000), this Court, speaking through Presiding Justice Sullivan, clearly and succinctly stated the course of action required of the Court, as follows:

Because this case is not properly before this Court, it must be dismissed for lack of jurisdiction. Though none of the parties have raised the issue of whether the order of the circuit court ... is appeal-able, this Court will address the issue on its own initiative.

Id. at 1173 (sua sponte dismissing appeal for lack of Rule 54(b) certification). Rule 54(b) of the Mississippi Rules of Civil Procedure provides as follows:

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

(emphasis added).

¶ 8. In its order, the trial court mentioned only Gulf National’s motion and did not mention any of the other defendants. No Rule 54(b) certificate having been entered by the trial court, the order is purely interlocutory and is not an appealable final judgment. Owens v. Nasco Int’l, Inc., 744 So.2d 772, 774 (Miss.1999). Because this case is not properly before the Court, it must be dismissed for lack of jurisdiction.

CONCLUSION

¶ 9. For the reasons stated above, this appeal is dismissed, and Gulf National’s motion to strike the appellants’ brief is dismissed as moot.

¶10. APPEAL DISMISSED.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, DIAZ, EASLEY, CARLSON and GRAVES, JJ., CONCUR.

      . See Salts v. Gulf Nat'l Life Ins. Co., 743 So.2d 371 (Miss.1999), in which this Court reversed and remanded the trial court’s August 11, 1997, order which changed venue to the Prentiss County Circuit Court.


author: DIAZ, Justice,

text:
    LAWRENCE COUNTY SCHOOL DISTRICT and Estate of James A. Blackmon, Deceased v. Clayton BRISTER, Jr.
    No. 1999-IA-00845-SCT.
    Supreme Court of Mississippi.
    Aug. 15, 2002.
    Timothy Dale Crawley, Kenneth S. Womack, Gulfport, Gregg A Caraway, Jackson, Joe Dale Walker, Monticello, attorneys for appellant.
    W. Terrell Stubbs, Mendenhall, attorney for appellee.
   DIAZ, Justice,

dissenting from the denial of the motion for rehearing:

¶ 28. In keeping with the dissent to the majority’s opinion in this case, I also disagree with the denial of Blister's Motion for Rehearing. The crux of the matter is whether this case was properly before the chancery court. I find that it was.

¶ 29. The pertinent section of the Mississippi Tort Claims Act (MTCA) provides as follows:

Jurisdiction for any suit filed under the provisions of this chapter shall be in the court having original or concurrent jurisdiction over a cause of action upon which the claim is based. The judge of the appropriate court shall hear and determine, without a jury, any suit filed under the provisions of this chapter.

Miss.Code Ann. § 11-46-13(1) (2002)(em-phasis added). According to this statute, an “appropriate court” is a court having original or concurrent jurisdiction over a cause of action. Further, the “appropriate court” shall decide any suit initiated under the MTCA as long as that court has subject matter jurisdiction. The MTCA does not define “appropriate court.” Although lawsuits brought under the MTCA have customarily been adjudicated in the circuit courts, there is no statutory or constitutional bar against their being heard by chancery courts.

¶ 30. In the statute quoted above, the Legislature refers to concurrent jurisdiction. Obviously this means that more than one court can properly hear a case. Bris-ter sued the Lawrence County School District and the Estate of James A. Blackmon as joint defendants. Article 6, § 159 of the Mississippi Constitution empowers the chancery court with jurisdiction over matters pertaining to the administration of estates. Article 6, § 156 prescribes the jurisdiction of circuit courts. In construing the case at hand in light of these constitutional provisions, Brister could have properly brought suit in either the chancery court or the circuit court, as either court would have subject matter jurisdiction.

¶ 31. Further, it is not uncommon for chancery and circuit courts to have concurrent jurisdiction, thus allowing a plaintiff to bring suit in either court. For example, the circuit court generally has jurisdiction over a contract action, but when there is a dispute involving real property, the plaintiff must bring it in chancery court or if he sues for strictly a breach of contract, he may bring it in circuit court. Art. 6, § 159 of the Mississippi Constitution gives the chancery court jurisdiction over matters involving divorce, alimony and child support. However, when a bond is required to secure the payment of child support and the defendant fails to pay, the plaintiff can bring suit against the sureties in chancery or circuit court. In wording the above statute, the Legislature took into consideration that although torts generally fall in the domain of the circuit court, an action under the Tort Claims Act could foresee-ably involve matters normally within the jurisdiction of the chancery court. By saying the “court having original or concurrent jurisdictionf,]” the Legislature allowed for jurisdiction by whichever court is more appropriate in any given situation.

¶ 32. Where the chancery court has exercised its equity jurisdiction, it may proceed to a complete adjudication of the suit and award all appropriate legal and equitable remedies. Leaf River Forest Prods., Inc. v. Deakle, 661 So.2d 188, 193 (Miss.1995) (citing Shaw v. Owen, 229 Miss. 126, 132-33, 90 So.2d 179, 181 (1956)); First Nat’l Bank of Vicksburg v. Middleton, 480 So.2d 1153, 1156 (Miss.1985). See also Morgan v. U.S. Fid. & Guar. Co., 222 So.2d 820, 826 (Miss.1969). This complete adjudication includes the award of any punitive damages where appropriate, although the chancery court has actual subject matter jurisdiction over such claims rather than merely pendent jurisdiction. Tideway Oil Programs, Inc. v. Serio, 431 So.2d 454, 464 (Miss.1983).

¶33. The Mississippi Legislature provides that lawsuits pertaining to the MTCA may be properly brought in any “court having original or concurrent jurisdiction[.]” Miss.Code Ann. § 11-46-13(1). Inasmuch as Brister’s claim against Black-mon’s estate is constitutionally within the jurisdiction of the chancery court, this case, even though it involves the MTCA, may be heard by the chancery court. Accordingly, I disagree with the majority’s decision to deny Brister’s Motion for Rehearing.

EASLEY, J., JOINS THIS OPINION.


author: WALLER, Justice, for the Court.

text:
    In the Matter of the Petition for REINSTATEMENT to the Practice of Law OF Thomas Eddy PARSONS.
    No. 2001-BR-01533-SCT.
    Supreme Court of Mississippi.
    Aug. 22, 2002.

      Tadd Parsons, attorney for petitioner.
    Michael B. Martz, attorney for respondent.
   WALLER, Justice, for the Court.

¶ 1. Thomas Eddy Parsons, a 48-year-old disbarred former attorney and assistant district attorney, petitions for reinstatement to the practice of law. Finding that a more complete examination of the circumstances of the offenses and rehabilitation is warranted, we refer the case to a special master.

FACTS AND PROCEDURAL HISTORY

¶2. Parsons was disbarred by agreed order of disbarment on June 13, 1996, after he was convicted of two felonies in the United States District Court for the Southern District of Mississippi. Miss. Bar v. Parsons, 677 So.2d 192 (Miss.1996). The first conviction was based on one count of conspiring to possess with intent to distribute cocaine and five counts of possession with intent to distribute cocaine. Parsons was sentenced to 98 months imprisonment on each count with all sentences running concurrently. The second conviction was based on a guilty plea entered for enticing an individual to travel in interstate commerce for the purposes of prostitution in violation of the Mann Act. Parsons was sentenced to 60 months running concurrently with the 98-month drug convictions and fined $5,000. The overall sentence was later reduced to 80 months. After serving nearly six years (59)6 months) in prison, he was released and placed on five years supervised and reporting probation and ordered to serve 200 hours of community service. Parsons’s probation was originally scheduled to end on June 5, 2005, but it has since been terminated thirty-seven months early on April 30, 2002, by the federal court.

DISCUSSION

¶ 3. We have exclusive and inherent jurisdiction concerning matters of attorney discipline and reinstatement. Rules of Discipline for the Miss. State Bar Rule 1(a). We review an attorney’s petition for reinstatement under the de novo standard. In re Baker, 649 So.2d 850, 852 (Miss.1995). Also, we sit as the trier of fact and are not bound by any substantial evidence or manifest error rule. Id. No disbarred attorney shall file for reinstatement until three years after the date of the order of disbarment becomes final. Rules of Discipline for the Miss. State Bar Rule 12.1.

¶ 4. The fundamental inquiry concerning reinstatement is “whether [the attorney] has rehabilitated himself in conduct and character since the suspension was imposed.” McGuire v. Miss. Bar, 798 So.2d 476, 478 (Miss.2001) (quoting In re Mathes, 653 So.2d 928, 929 (Miss.1995)) (emphasis added). The oft-cited standard for reinstatement is as follows:

A court, in such a proceeding is not administering punishment; it is passing upon character. We do not believe it requires a long period to discipline and effect a rehabilitation of character. A firm resolve to live a correct life evidenced by outward manifestations sufficient to convince a reasonable mind clearly that the person has reformed is only required. In restoring a disbarred attorney, the principal question is whether that particular attorney would be safe to assist in administering justice, if readmitted; and the effect of his readmission upon the conduct of others, while important, is a subsidiary consideration. A man who has redeemed himself and become worthy to be readmitted should not be kept out of the profession to which, perhaps, he has devoted much of his life and means, because others might, possibly, be led to do evil.

Ex parte Marshall, 165 Miss. 523, 556, 147 So. 791, 798 (1933).

¶5. The Bar deposed Parsons as part of his reinstatement efforts. Parsons stated that some 42 people were granted immunity in his drug cases. Concerning the distribution, he stated that he purchased the drugs for use by himself and friends. He never sold any of the cocaine he possessed. In fact, he stated that the cocaine purchased was for his own personal use and that of a few friends. He attributes his drug abuse to a bitter divorce and questionable social relations. All fines imposed were paid. While incarcerated at the Maxwell Federal Prison Camp in Montgomery, Alabama, Parsons voluntarily spent nearly 1300 hours training, developing, and working in a legal apprenticeship program assisting inmates with post-conviction, family, and other legal matters. Regarding the required community service, Parsons taught English to Spanish-speaking people who moved to the Wiggins area and maintained the grounds of the First Baptist Church. Parsons has maintained gainful employment in the family businesses since his release. Also, he submitted 15 letters of reference, ten from attorneys, three from Baptist pastors, one from the Supervisor of Education at the Montgomery prison camp, and one from his probation officer. A few of the letters evidence knowledge of his prior acts and nonetheless recommend reinstatement. The point of all of these facts is not to state that Parsons’s conduct was at all justifiable or defensible or to even argue that he is worthy of reinstatement but to illustrate the proposition that, in the context of a reinstatement, there is more to a consideration of an attorney’s disbarring conduct than just the tenor of the charges and amount of time served. Such conduct may evidence want of personal integrity, but it was not in the nature of fraud, misrepresentation, or other reprehensible conduct for which attorneys have been disbarred and reinstated in Mississippi. See In re Holleman, 826 So.2d 1243, 2002 WL 1340977 (Miss.2002) (reinstating attorney convicted of possession of child pornography); In re Parsons, 797 So.2d 203 (Miss.2000) (reinstating attorney convicted of conspiracy to commit money laundering); In re McHann, 691 So.2d 422 (Miss.1997) (reinstating attorney convicted of falsifying a document); In re Medley, 687 So.2d 1219 (Miss.1997) (reinstating attorney convicted of embezzlement of $16,000); In re Burgin, 654 So.2d 40 (Miss.1995) (granting conditionally petition of attorney convicted of conspiracy to defraud the United States government); In re Baker, 649 So.2d 850 (Miss.1995) (granting conditionally petition of attorney convicted of two counts of felonious embezzlement); In re Nixon, 618 So.2d 1283 (Miss.1993) (granting conditionally petition of attorney and former United States District Judge convicted of two counts of perjury); Miss. Bar v. Gautier, 538 So.2d 772 (Miss.1989) (reinstating attorney convicted of possession of cocaine); Phillips v. Miss. Bar, 427 So.2d 1380 (Miss.1983) (reinstating attorney convicted* on nine counts of deceiving and conspiring to defraud the United States government). These cases suggest that attorneys can be worthy of reinstatement notwithstanding the severity of their conduct which prompted disbarment.

¶ 6. The case law in Mississippi regarding reinstatement of attorneys with drug convictions is quite divergent. In Williams v. Miss. State Bar Ass’n, 492 So.2d 578, 578 (Miss.1986), James Williams pled guilty to two charges of possession of sixty pounds of marijuana and was subsequently disbarred. We ordered a hearing on Williams’s petition for reinstatement and appointed Retired Justice R.P. Sugg as special master. Id. Williams and eleven witnesses testified at the hearing. Id. Justice Sugg recommended that Williams’s petition be denied. Id. We disagreed, found that Williams had shown sufficient proof of his rehabilitation, and granted his petition for reinstatement.

¶ 7. Now contrast the circumstances of Williams with those of David Massey’s attempts at reinstatement. In re Reinstatement of Massey, 722 So.2d 452 (Miss.1998) (“Massey III”); Petition of Massey, 670 So.2d 843 (Miss.1996) (“Massey 7/”); Petition of Massey, 633 So.2d 452 (Miss.1994) (“Massey I”). David Massey pled guilty in federal court to conspiring to distribute 2400 Ecstacy pills and ten grams of cocaine. 670 So.2d at 843. Massey spent two years in federal prison and seven months in a half-way house. Id. After the expiration of his supervised probation, he applied for reinstatement. Id. Massey attempted on three occasions to be reinstated but this Court denied each basing its decision on the facts that Massey was a dealer, his letters of reference were not helpful, and he failed to “work with the segment of society that he harmed by distributing drugs.” Id. at 845-46.

¶ 8. Justice McRae wrote separately in Massey II and made the reasonable point that “there are certain felony charges which, upon conviction, should forever deny one the privilege to practice law. Being a major distributor of illegal drugs is one of those felony charges.” Id. at 846. This sentiment is reflected in the amended Rule 12. However, Justice Banks wrote a dissenting opinion which was joined by Chief Justice Lee and Justice Roberts. Id. at 846. He noted that Williams was found with sixty pounds of marijuana which would suggest “a bit more than mere addiction” and the fact that Williams pled guilty to possession with intent to distribute both marijuana and methaqual-one. Id. Justice Banks also expressed his concern about denying Massey’s petition without a hearing, stating the following:

This is not to condemn the Court’s action with regard to Williams or to suggest that, in the end, Massey should be accorded a similar result. It is to say that the cases, on their face, are not sufficiently distinguishable to dispense with the procedural care taken in Williams. I would not reach today’s result without more fully examining the circumstances of the offense and the alleged rehabilitation through the mechanism of appointing a special master as we did in Williams.

Id. at 847.

¶ 9. Given the gravity of Parsons’s felony convictions and our case law, we conclude that the best course of action is to appoint a special master to conduct further proceedings on the petition and to make a recommendation to this Court on the disposition of the petition. Referring the instant case to a special master is exactly the approach advocated by Justice Banks in Massey II. Parsons must still convince a special master who would be able to gauge his demeanor, remorse, and extent of his rehabilitation more accurately than this Court armed with just a deposition and a few motions. Only then, after a more developed record is generated, should we pass on Parsons’s character for reinstatement.

CONCLUSION

¶ 10. We find that referral of Parson’s petition for reinstatement to a special master is necessary to flesh out the extent of Parson’s rehabilitation, to consider whether Parsons could safely assist in the administration of justice for the public, and to examine the possible effect of his readmission upon the conduct of others. See Ex parte Marshall, 165 Miss, at 556, 147 So. at 798. This ruling is justified out of an abundance of caution and fairness to Parsons and, more importantly, to the public the Bar is privileged to serve.

¶ 11. REFERRED TO SPECIAL MASTER PURSUANT TO RULE 3 OF RULES OF DISCIPLINE FOR THE MISSISSIPPI BAR.

PITTMAN, C.J., SMITH, P.J., CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., DIAZ, AND EASLEY, JJ., CONCUR IN RESULT ONLY. COBB, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Rule 12 was amended effective April 4, 2002, to provide that certain conduct committed after April 4, 2002, would forever preclude an attorney from being reinstated.

      . This is not to make light of Parsons's conviction for distribution because we have held that “distributing” includes "transactions which are sales as well as transactions which may not be considered sales.” Meek v. State, 806 So.2d 236, 239-40 (Miss.2001) (quoting Rogers v. State, 599 So.2d 930, 934 (Miss.1992)).


author: GEORGE C. CARLSON, JR., Justice.

text:
    THE MISSISSIPPI BAR, v. James Anthony KEITH.
    No. 2002-BD-00424-SCT.
    Supreme Court of Mississippi.
    Aug. 29, 2002.
   ORDER OF DISBARMENT

GEORGE C. CARLSON, JR., Justice.

¶ 1. This matter is before the Court, en banc, on the Formal Complaint of the Mississippi Bar seeking the second disbarment of James Anthony Keith based upon his convictions of certain felonies. We conclude that all procedural prerequisites have been met and order disbarment.

I.

¶ 2. James Anthony Keith of Long Beach, Harrison County, Mississippi, was admitted to practice law in Mississippi on April 14, 1987. In 1996, two of Keith’s clients deposited $31,132.82 into the trust account of Simpson & Keith for use in a real estate transaction. Keith withdrew the funds from the firm’s trust account and thereafter deposited them into his personal account. In response to an informal complaint from the Bar, Keith admitted that he used the funds to pay gambling debts. The Mississippi Bar filed its first Formal Complaint against Keith in Cause Number 97-B-00338 on March 18, 1997. Keith acknowledged receipt of the summons and complaint on April 25, 1997, but filed no formal response. The Bar then filed for a clerk’s entry of default on June 19, 1997. Following a hearing at which Keith did not appear, a default judgment was entered by the complaint tribunal on September 12, 1997. A separate opinion and judgment was rendered on September 22, 1997, which disbarred Keith from the practice of law. The judgment became final on November 10, 1997, and no petition for reinstatement was ever filed.

¶ 3. In 1999, Keith was indicted in the Circuit Court of the First Judicial District of Harrison County on charges of embezzlement and uttering a forgery (3 counts), in Cause Numbers B2401-99-450, and B2401-99-874, respectively, on the docket of that court. The embezzlement charge involved the misuse of funds paid by another client in a divorce matter. The indictment charged that Keith embezzled the funds during the period from March 1, 1997 (when Keith was still licensed to practice law) through June 22, 1998. Keith entered guilty pleas to all charges on August 21, 2001, and was given concurrent 10 year suspended sentences and placed on probation.

¶ 4. The Bar, on its own initiative, filed the present Formal Complaint against Keith on March 19, 2002, in which it asked that Keith be disbarred based on the 2001 guilty pleas and felony convictions. Keith executed an acknowledgment of receipt of the summons and Formal Complaint on April 9, 2002. Keith filed an answer on April 17, 2002, in which he confessed the guilty pleas and felony convictions but asserted that he was not a licensed attorney at the time.

II.

¶ 5. The Rules of Discipline for the Mississippi State Bar provide that misconduct which violates the Code of Professional Responsibility “shall be grounds for discipline, whether or not the acts or omissions occurred in the course of an attorney-client relationship.” Rule 6(a) states:

(a)Whenever any attorney subject to the disciplinary jurisdiction of the Court shall be convicted in any court of any state or in any federal court, or enter a plea of guilty or a plea of nolo contende-re therein, or tender a guilty plea pursuant to the provisions of Miss.Code Ann. § 99-15-26 (Supp.1993), or any similar provision in state or federal law therein of any felony (other than manslaughter) or of any misdemeanor involving fraud, dishonesty, misrepresentation, deceit, or willful failure to account for money or property of a client, a certified copy of the judgment of conviction or order accepting or acknowledging the offer or tender of a guilty plea pursuant to the provisions of Miss.Code Ann. § 99-15-26 (Supp.1993), or any similar provision in state or federal law shall be presented to the Court by Complaint Counsel and shall be conclusive evidence thereof. The Court shall then forthwith strike the name of the attorney and order his immediate suspension from the practice of law.

The Rules also provide that this Court has exclusive and inherent jurisdiction over matters pertaining to attorney discipline. The Rules of Discipline govern all bar disciplinary matters. Harrison v. Miss. Bar, 637 So.2d 204, 215 (Miss.1994).

III.

¶ 6. The formal complaint recites that Keith was at all times relevant “a member of the Bar subject to the disciplinary jurisdiction” of this Court. Keith responds that he was not a member of the Bar at the time of his indictments or guilty pleas. Keith was however still admitted to practice on March 1, 1997, when he began embezzling funds from his client.

¶ 7. This Court has previously issued multiple orders of disbarment. In 1990, James Fougerousse was disbarred after it was found that he had accepted client funds but failed to provide representation in criminal cases. Case No. 90-B-00373. Another bar complaint was pending against Fougerousse (for failing to file a bankruptcy petition on behalf of a client) at the time of the first disbarment. A second order of disbarment was entered in 1991. Case No. 90-B-00854. In that case, the underlying misconduct occurred in 1989, while Fougerousse was still licensed to practice law. A third order of disbarment was entered in 1992 for conduct (failure to file divorce pleadings) which occurred while Fougerousse was still licensed to practice law. Case No. 91-B-00313.

¶ 8. In the present case, Keith entered a plea of guilty to an indictment which charged him with embezzling funds from a client during the period from March 1, 1997 to June 22, 1998. Keith was still licensed to practice law until September 1997. It is clear that the underlying felonious conduct is subject to the discipline of the Bar even though the guilty plea and conviction for embezzlement occurred after disbarment for his previous conduct.

IV.

¶ 9. Rule 12.1, as it applies to the present case, provided that a petition for reinstatement could not be filed until three (3) years after the date the order of disbarment became final. Although he has not done so, Keith is now eligible to apply for reinstatement unless he is again sanctioned. Other states employ the practice of issuing multiple disbarments to extend the time after which a disbarred attorney may seek reinstatement, even when the offending conduct occurs after disbarment. See In re Teevens, 499 N.W.2d 887, 888 (N.D.1993).

¶ 10. The purpose of lawyer discipline is not so much to punish an errant attorney as it is to maintain standards of professional conduct which serve to protect the public and the administration of justice. La. State Bar Ass’n v. Krasnoff, 502 So.2d 1018, 1020 (La.1987). A second or consecutive order of disbarment may be appropriate so as to provide a complete record should the offending party seek readmission or admission in another jurisdiction. In re Tarletz, 165 Ariz. 243, 798 P.2d 381, 383 (1990). Courts have recognized an inherent authority to issue the most severe sanction solely to extend the time after which a previously disbarred attorney may seek readmission. In re White, 791 So.2d 602, 606 (La.2001). In the present case, it is necessary and appropriate that a second order of disbarment be issued to Keith.

¶11. IT IS, THEREFORE, ORDERED, ADJUDGED, and DECREED as follows:

¶ 12. James Anthony Keith should be, and is hereby, DISBARRED.

¶ 13. This order shall constitute notice of disbarment in this cause.

¶ 14. The Clerk of the Supreme Court of Mississippi shall immediately forward an attested copy of this order to the Circuit Court Judges and Chancellors in and for Harrison County, Mississippi, and the Senior Judges of such courts shall enter this order upon the minutes of their respective courts.

¶ 15. The Clerk of the Supreme Court of Mississippi shall immediately forward an attested copy of this order to the Clerks of the United States District Courts for the Northern and Southern Districts of Mississippi, the Clerk of the United States Court of Appeals for the Fifth Circuit, and the Clerk of the Supreme Court of the United States.

¶ 16. Costs of the formal complaint should be and are hereby assessed against James Anthony Keith.

¶ 17. SO ORDERED, ADJUDGED, and DECREED, this the 27th day of August, 2002.

      . Rule 12(c) has now been adopted to provide that an attorney disbarred for conviction for certain felonies, including theft, occurring after April 4, 2002, shall be ineligible for reinstatement to the practice of law.


author: OLIVER E. DIAZ, JR., J., for the Court.

text:
    In the Matter of the Petition for REINSTATEMENT to the Practice of Law OF Gerald R. EMIL.
    No. 2002-BR-00300-SCT.
    Supreme Court of Mississippi.
    Sept. 19, 2002.
    Rehearing Denied Jan. 9, 2003.
   ORDER

OLIVER E. DIAZ, JR., J., for the Court.

¶ 1. This matter is before the Court on Gerald R. Emil’s Petition for Reinstatement or, Alternatively, for Termination of Suspension. This Court previously ' ordered that Emil be suspended indefinitely from the practice of law. Emil v. The Mississippi Bar, 690 So.2d 301 (Miss.1997). The Court explicitly made reinstatement contingent upon proof from the Mississippi Board of Bar Examiners that Emil had successfully passed all sections of the Mississippi Bar Examination. The Rules of Discipline for the Mississippi Bar provide that when the petitioner has been suspended from the practice of law, reinstatement is not permitted except upon a showing that all of the conditions of reinstatement have been met. Miss. R. Disc. 12(b). Emil has made no attempt to retake the Mississippi Bar Examination. No other circumstances exist which would make reassessment of the sanctions appropriate. The Court therefore finds that the Petition for Reinstatement should be denied.

¶ 2. IT IS THEREFORE ORDERED that the Petition of Gerald R. Emil for Reinstatement or, Alternatively, for Termination of Suspension is denied.

¶ 3. SO ORDERED, this the 17th day of September, 2002.

To Deny: PITTMAN, C.J., SMITH, P.J., WALLER, COBB, DIAZ, EASLEY, CARLSON and GRAVES, JJ.

McRAE, P.J., concurs in result only.


author: CARLSON, Justice, for the Court. McRAE, Presiding Justice,

text:
    Mitchell Lamar CHESNEY v. Cynthia Ann Howington CHESNEY.
    No. 2000-CT-01948-SCT.
    Supreme Court of Mississippi.
    Oct. 3, 2002.

      Leslie R. Brown, Jackson, attorney for appellant.
    Lawrence Primeaux, Meridian, attorney for appellee.
   ON WRIT OF CERTIORARI

CARLSON, Justice, for the Court.

¶ 1. Mitchell Lamar Chesney (Mitchell) and Cynthia Ann Howington Chesney (Cindy) were granted an irreconcilable differences divorce by the Chancery Court of Lauderdale County. The parties were unable to agree on matters relating to post-divorce child support, division of marital assets, and alimony. Pursuant to statute, the parties submitted these matters to the chancellor for decision. The chancellor’s order included (a) that Mitchell contribute to the youngest daughter’s private school tuition and athletic fees and provide that child a car in addition to the monthly child support he was ordered to pay; (b) an equitable division of the marital estate; (c) an award to Cindy of periodic alimony; and, (d) an award of attorney’s fees to Cindy. Following that decision, Mitchell appealed to this Court, which assigned the matter to the Court of Appeals.

¶ 2. On appeal, Mitchell raised a number of issues relating to child support, periodic alimony, attorney’s fees and the equitable distribution of the marital estate. The Court of Appeals reversed and remanded as to the child support, ordering that the chancellor make specific findings of fact on her departure from the statutory child support guidelines. The Court of Appeals reversed and rendered on the matter of periodic alimony and attorney’s fees finding no deficit in Cindy’s share of the marital estate, and no entitlement to attorney’s fees. Chesney v. Chesney, 828 So.2d 219, 2002 WL 119606 (Miss.Ct.App.2002).

¶ 3. In her petition to this Court, Cindy asserts that the order that Mitchell pay one-half of his daughter’s private school tuition and athletic fees should be considered child maintenance expenses and not additional child support. She also asserts that the chancellor properly awarded periodic alimony, finding that Cindy would be unable to maintain her standard of living on her share of the marital estate. Finally, Cindy asserts that the award of attorney’s fees was proper because the chancellor found that a portion of her legal fees were related to Mitchell’s failure to comply with a court order.

¶ 4. Because we find the decision of the Court of Appeals erroneous only as to the issue of attorney’s fees, we address only that issue.

FACTS

¶5. Mitchell and Cindy Chesney were married in 1976 and resided in Lauderdale County as husband and wife, until 1999. They had three children and one was emancipated at the time of the divorce.

¶ 6. Upon petition for divorce, the chancellor found that the parties were of approximately the same age, both in good physical and mental health and both gainfully employed, earning roughly the same income. The chancellor also found that both had contributed positively to the marriage; however the chancellor concluded that Mitchell’s extra-marital relationship had contributed substantially to the ultimate deterioration of the marriage.

¶ 7. The issue before this Court is that of attorney’s fees. The chancellor found that $6,000.00 is a reasonable attorney’s fee in this matter and awarded Cindy just over half that amount or $3,500.00. The chancellor found that both parties are able to pay their own legal fees, but noted that Cindy incurred additional legal fees because of Mitchell’s misconduct in the divorce proceedings. The chancellor opined that dealing with Mitchell’s failure to comply with the Judgment Granting Temporary Relief, for which he was found to be in contempt of the court, and his denial of the extra-marital relationship, resulted in greater legal expenses for Cindy.

DISCUSSION

¶ 8. This Court’s scope of review in domestic relations matters is limited. Montgomery v. Montgomery, 759 So.2d 1238, 1240 (Miss.2000). Absent an abuse of discretion, this Court will uphold the decision of the chancellor. Hollon v. Hollon, 784 So.2d 943, 946 (Miss.2001). This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied. Henderson v. Henderson, 757 So.2d 285, 289 (Miss.2000).

ATTORNEY’S FEES AND COSTS OF LITIGATION

¶ 9. Cindy Chesney asks this Court to determine whether the trial court committed error in awarding attorney’s fees. “Generally the award of attorney’s fees in a divorce case is left to the discretion of the trial court.” Cheatham v. Cheatham, 537 So.2d 435, 440 (Miss.1988); see also Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). Absent an abuse of discretion or manifest error, the chancellor’s decision about attorney fees will not be disturbed by the reviewing court. Creekmore v. Creekmore, 651 So.2d 513, 520 (Miss.1995).

¶ 10. This Court has established the criteria to be analyzed in determining whether to award attorney fees in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982) and Watson v. Watson, 724 So.2d 350 (Miss.1998). Those criteria include (1) “relative financial ability of the parties;” (2) the “skill and standing of the attorney employed,” (3) novelty and difficulty of issues in the case, (4) the responsibility required in managing the case, (5) “time and labor required,” (6) the “usual and customary charge” in the community, and (7) whether the attorney was precluded from undertaking other employment by accepting the case. McKee, 418 So.2d at 767.

¶ 11. The chancellor considered these factors as they relate to the case sub judi-ce. She noted Cindy’s ability to pay her own attorney’s fees and Mitchell’s misconduct during these proceedings, including being found in contempt of court. The chancellor determined that Cindy should be awarded a reasonable portion of her attorney’s fees, as additional fees were directly related to Mitchell’s conduct.

¶ 12. There have been a number of prior decisions upholding the award of attorney’s fees to one party where the other party has been found to be in contempt of court or where that party’s actions caused additional legal fees to be incurred. See A & L, Inc. v. Grantham, 741 So.2d 832, 844-45 (Miss.1999) (holding that awarding attorney’s fees under certain circumstances, regardless of the party’s ability to pay, is not a reward, but reimbursement for the extra legal costs incurred as a result of the opposing party’s actions); Douglas v. Douglas, 766 So.2d 68, 71 (Miss.Ct.App.2000) (where a party who is entitled to the benefits of a previous judicial decree is forced to initiate further proceedings to gain compliance with the previous order of the court, an award of attorney’s fees is appropriate).

¶ 13. The decision by the Court of Appeals, in this case, to reverse the award of attorney’s fees because Cindy has adequate financial resources to pay the costs of her representation overlooks the chancellor’s reasoning for awarding attorney’s fees. The Court of Appeals decision is also inconsistent with Burnham-Steptoe v. Steptoe, 755 So.2d 1225, 1236 (Miss.Ct.App.1999), which provides for sanctions, including an award of attorney’s fees, for conduct during the pendency of the case that obstructs litigation and results in additional fees.

¶ 14. The chancellor did make a finding on the record that while both parties are able to pay their legal fees, part of Cindy’s attorney fees were related to Mitchell’s failure to comply with the Judgment Granting Temporary Relief. The chancellor also noted that part of Cindy’s legal fees were related to Mitchell’s denial of his relationship with another woman. The chancellor’s order that Mitchell pay a portion of Cindy’s attorney’s fees is consistent with previous decisions and as such, was not clearly erroneous and should not have been disturbed.

CONCLUSION

¶ 15. With regard to the chancellor’s order that Mitchell contribute to his youngest daughter’s private school tuition and athletic fees and provide that child a ear in addition to the monthly child support he was ordered to pay, the decision of the Court of Appeals to reverse and remand to the trial court is affirmed. Since the petition for writ of certiorari did not raise the issue of the equitable division of the marital estate, we do not address that issue. As to the issue of periodic alimony, we affirm the decision of the Court of Appeals, which found that the evidence does not establish the kind of marital estate deficit that warrants an award of periodic alimony. On the issue of attorney’s fees, we reverse the decision of the Court of Appeals. The chancellor’s order that Mitchell pay a portion of Cindy’s attorney’s fees because of his misconduct during the divorce proceedings is consistent with previous decisions of this Court; therefore, the decision of the Court of Appeals as to the award of attorney’s fees is reversed and the chancellor’s order as to this award is reinstated. In sum, the judgment of the Court of Appeals is affirmed in all respects, except as to the issue of Cindy’s attorney’s fees. Thus, the judgment of the chancery court is affirmed in part and reversed in part and remanded in part for further proceedings consistent with this opinion and the Court of Appeals’ opinion.

¶ 16. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, DIAZ AND GRAVES, JJ., CONCUR. McRAE, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, J.

McRAE, Presiding Justice,

concurring in part and dissenting in part.

¶ 17. I concur with the majority except as to the issue of the award of Cindy Chesney’s expenses. The chancellor’s assessment against Mitch Chesney of Cindy Chesney’s expenses relating to the adultery allegation contradicts Cindy’s required burden of proof and ignores that the two ultimately agreed to an irreconcilable differences divorce thereby removing any contest on the issue of adultery. Moreover, some of the adultery related expenses were incurred prior to the filing of the divorce complaint and cannot, therefore, be justified as sanctions under Rule 37(c) of the Mississippi Rules of Civil Procedure. Accordingly, I dissent in part.

¶ 18. The record reveals that Cindy hired a private investigator before she filed for divorce. She later filed for a divorce on adultery grounds and in the alternative pled irreconcilable differences. She served requests for admission relating to adultery, which Mitch denied. He then filed a counter-complaint on the ground of cruel and inhuman treatment.

¶19. Before trial, however, Mitch and Cindy entered an Agreed Consent to Divorce on the Ground of Irreconcilable Differences. Any fault for purposes of divorce was therefore not in issue. As such, the assessment of fees reserved for adjudication should have been related only to Mitch’s contempt of the temporary orders.

I. The Burden of Proof

¶20. A party alleging adultery as a basis for divorce bears the burden of proving adultery. Brooks v. Brooks, 652 So.2d 1113, 1115 (Miss.1995); McAdory v. McAdory, 608 So.2d 695, 699 (Miss.1992) (quoting Dillon v. Dillon, 498 So.2d 328, 330 (Miss.1986)). Indeed, on the issue of adultery, Cindy at all times would have retained the burden of presenting satisfactory evidence sufficient to lead the trier of fact to a conclusion of guilt. Dillon, 498 So.2d at 330; Mitchell v. Mitchell, 767 So.2d 1037, 1040 (Miss.Ct.App.2000). And it is well-settled that when a party denies requests for admission, the opposing party is required to prove otherwise.

¶ 21. While on the one hand Cindy may have been prudently preparing to meet her legal burden by hiring a private investigator, she may very well on the other have been attempting to assuage her own personal suspicion. Either way, Mitch certainly should not be forced to pay for Cindy’s self-selected expenses associated with developing her case or satisfying her own personal suspicions before she ever filed for a divorce. And his denial requires her to put on proof.

II. Rule 37(c) does not justify a fee assessment relating to the adultery allegation.

¶ 22. Although Cindy argues that Rule 37(c) of the Mississippi Rules of Civil Procedure permits a judge to impose attorney’s fees as a sanction against a party who denies a request for admission that is later proven at trial to be true, this rule applies only to expenses resulting from one’s failure to admit to issues later contested at trial. First, since the investigation fee is not the result of a denied request for admission and, second, since there was no trial on the issue of adultery for purposes of divorce, Rule 37(c) does not apply.

A. Rule 37(c) applies to expenses resulting from a party’s failure to admit.

¶ 23. Rule 37(c) sanctions are designed to compensate for added expenses caused by discovery abuses. TDS Healthcare Sys. Corp. v. Humana Hosp. Ill., Inc., 880 F.Supp. 1572, 1581 (N.D.Ga.1995). They are designed to reimburse reasonable expenses incurred by a party in proving the truth of a requested admission later contested at trial. See Cooper v. State Farm Fire & Cas. Co. 568 So.2d 687, 695 (Miss.1990). As such, an award of expenses incurred prior to the propounding of requests for admission are improper and constitute an abuse of discretion. Garcia v. Hyster Co., 28 Cal.App.4th 724, 34 Cal. Rptr.2d 283 (1994); see also Dorr v. Dorr, 797 So.2d 1008, 1017 (Miss.Ct.App.2001)(party had power to seek admission from his former wife that he made child support payments, and that were she to deny receiving those payments, he could have obtained the necessary records and sought to have the reasonable expenses incurred in making that proof assessed against her); Fralin ex rel. Fralin v. Allstate Ins. Co. 563 S.E.2d 643 (N.C.Ct.App.2002) (awarding attorney’s fees due to defendant’s inappropriate denial of requests for admissions resulting in the plaintiff’s attorney expending a considerable amount of time to prove those facts); Rogers v. Armstrong, 2002 WL 397728 (Ohio Ct.App.2002)(trial court did not abuse its discretion in awarding the plaintiff the expenses she incurred as a result of the defendant’s failure to admit).

¶ 24. In the present case, Rule 37(c) does not contemplate compensation for Cindy’s private investigation or expenses related to allegations of adultery since they are not the result of Mitch’s denials. Particularly, forcing Mitch to pay for Cindy’s private investigator expense cannot be justified under any law.

B. Rule 37(c) does not apply to non-contested issues.

¶ 25. Not only are Rule 37(c) sanctions limited to expenses resulting from discovery abuses, they are also limited to expenses related to issues contested at trial. Applying the plain language of Rule 37(c), the court in Payne v. Wallace, 136 Idaho 303, 32 P.3d 695 (Ct.App.2001) held that where issues covered by requests for admissions regard issues not contested at trial, post-trial Rule 37(c) sanctions should not be awarded. Id. at 702. And as explained by another of our sister jurisdictions, the purpose of the discovery process is not to force the opposing party to admit to the contested facts that are at the heart of the ultimate dispute; rather, the central purpose of the discovery rules is to require the admission of facts which ought not to be disputed at trial, so as to eliminate the time, trouble and expense of proving facts that are undisputed. Brodtmann v. Duke, 803 So.2d 41, 45 (La.Ct.App.2001). Here in our own state, in Martin v. Mabus, 734 F.Supp. 1216 (S.D.Miss.1990), plaintiffs argued entitlement to their witness fees under Fed.R.Civ.P. 37(c) because the defendants failed to admit certain matters for which the witnesses were later necessary to prove liability related to a Mississippi civil rights violation. Although the court denied the fees, it would not have considered the fees were the witnesses not needed for a contested issue at trial. Martin v. Mabus, 734 P.Supp. at 1223-25.

¶ 26. In the present case, the record is clear: On the morning of trial, Mitch and Cindy removed the issue of adultery out of the granting of the divorce. They consented to an irreconcilable differences divorce, and such consent was entered. Remaining issues were heard, including those related to attorney’s fees. But the chancellor improperly ordered Mitch to compensate Cindy for her pre-complaint private investigation expenses, and any expenses relating to the adultery allegation. Rule 37(c) does not justify shifting these expenses to Mitch.

1127. I therefore dissent. The judgment of the chancellor should be reversed and rendered as to the amount awarded to Cindy for her private investigation expenses and those related to the adultery allegation.

EASLEY, J., JOINS THIS OPINION.


author: GEORGE C. CARLSON, JR., J.

text:
    THE MISSISSIPPI BAR v. Peter HALAT, Jr.
    No. 98-BD-00415-SCT.
    Supreme Court of Mississippi.
    Dec. 11, 2002.
   ORDER

GEORGE C. CARLSON, JR., J.

¶ 1. This matter is before the Court, en banc, upon the Motion for Reconsideration and for Entry of an Order of Disbarment filed by The Mississippi Bar. There was no response filed by Peter Halat, Jr. The complaint involves Halat’s federal court conviction of the following crimes: (1) Conspiracy to commit racketeering in violation of 18 U.S.C. § 1962(d); (2) Obstruction of justice in violation of 18 U.S.C. § 1503; (3) Conspiracy to obstruct justice in violation of 18 U.S.C. § 371; and (4) Conspiracy to commit wire fraud in violation of 18 U.S.C. § 317. This Court entered its order on July 2,1998, granting the Bar’s request for indefinite suspension pending Halat’s appeals. Miss. Bar v. Halat, 718 So.2d 1090 (Miss.1998).

¶ 2. On July 25, 2002, the Bar provided certification that the United States Court of Appeals for the Fifth Circuit affirmed the district court’s judgment of convictions and sentences as to Halat and that Halat had exhausted all his appeals, to no avail. See United States v. Sharpe, 193 F.3d 852 (5th Cir.1999), cert. denied sub nom. Halat v. United States, 530 U.S. 1229, 120 S.Ct. 2658, 147 L.Ed.2d 273 (2000). This Court finds that Halat has been adjudicated guilty of the offenses of conspiracy to commit racketeering, obstruction of justice, conspiracy to obstruct justice, and conspiracy to commit wire fraud, all felonies, and that pursuant to Rule 6, Rules of Discipline for the Mississippi State Bar, he should be disbarred.

¶ 3. IT IS THEREFORE ORDERED as follows:

1. Peter Halat, Jr., is hereby, DISBARRED from the practice of law in the State of Mississippi.

2. This order shall constitute notice of disbarment in this cause.

3. The Clerk of the Supreme Court of Mississippi shall immediately forward an attested copy of this Order to the Circuit Court Judges and Chancellors in and for Harrison County, Mississippi, and the Senior Judges of each court shall enter this order upon the minutes of their respective courts.

4. The Clerk of the Supreme Court of Mississippi shall immediately forward an attested copy of this Order to the Clerks of the United States District Courts for the Northern and Southern Districts of Mississippi, to the Clerk of the United States Court of Appeals for the Fifth Circuit, and to the Clerk of the Supreme Court of the United States.

5. Costs of the formal complaint should be, and hereby are, assessed against Peter Halat, Jr.

¶ 4. SO ORDERED, this the 11th day of December, 2002.