Carpenter v. Berry

58 So. 3d 1158, 2011 Miss. LEXIS 89, 2011 WL 448642
CourtMississippi Supreme Court
DecidedFebruary 10, 2011
Docket2009-CA-01200-SCT
StatusPublished
Cited by21 cases

This text of 58 So. 3d 1158 (Carpenter v. Berry) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carpenter v. Berry, 58 So. 3d 1158, 2011 Miss. LEXIS 89, 2011 WL 448642 (Mich. 2011).

Opinions

CHANDLER, Justice,

for the Court:

¶ 1. In this case, Guardians1

¶2. of a minor child settled all claims against the defendant, Laura Carpenter. Approximately three years after approving the settlement, the Guardians filed a petition to set aside the settlement, and the chancellor granted the requested relief under Rule 60(b) of the Mississippi Rules of Civil Procedure. Carpenter argues the chancellor abused his discretion in setting aside the settlement. We affirm in part and reverse in part. We affirm the set-aside of the minor’s settlement. But we reverse the set-aside of the settlement of the Guardians’ individual claims.

FACTS

¶ 3. On June 4, 2004, Tangela Berry and Ricky Banks filed a negligence action in the circuit court for damages related to Berry’s pregnancy and the birth of their son, Ryheim Banks.2 They named as defendants: Tom Carey, M.D.; Natchez Community Hospital, Inc.; OB-GYN Clinic, Inc.; Donielle Daigle, M.D.; Laura Carpenter [registered nurse]; and Jane Does 1-4.

¶ 4. While the negligence action was pending in circuit court, Berry and Banks obtained Letters of Guardianship and petitioned the chancery court for authority to settle minor’s claim against Laura Carpenter.3 The Guardians requested approval of a $25,000 settlement to be apportioned among the parties (Berry, Banks, and Ry-heim), with $10,000 of it as the attorney’s fee. Under the proposed settlement, the Guardians agreed to execute an agreed order of dismissal with prejudice of their individual claims against Carpenter.

¶ 5. At the hearing on the petition, the Guardians’ attorney, Everett Sanders, did not call or question any witnesses. He informed the court that Carpenter’s “involvement, individually, is negligible” and that the $25,000 settlement offer was “appropriate.” He also proposed that the amount be apportioned, with $10,000 for attorney’s fees, $5,000 going into an ac[1160]*1160count for the minor, and $5,000 to each parent. Sanders informed the court that $400,0004 had been billed in connection with the minor, and that he was trying to have Medicaid waive any claim against the settlement proceeds.

¶ 6. Carpenter’s attorney questioned Berry and Banks regarding the settlement. They confirmed that the settlement agreement would release all existing and future claims against Carpenter for the care and treatment rendered. They also confirmed that it was their decision, based on advice from their attorneys, to settle Ryheim’s claims against Carpenter for $25,000. Berry and Banks provided no testimony regarding the substance of the claims or damages incurred.

¶ 7. On August 11, 2005, the chancellor entered an order authorizing settlement of the claims and approving the apportionment. The chancellor attached the Guardians’ proposed release as an exhibit to his order. The chancellor found the settlement to be a “fair and reasonable settlement of a doubtful claim and it is in the best interest of the minor and all others[.]” The chancellor also granted the Guardians’ ore terms motion to deposit the minor’s proceeds from the settlement in an interest-bearing account.

¶ 8. On July 21, 2008, the Guardians, with new counsel, filed a petition to set aside the settlement under “Rule 60(b).” They argued that the settlement agreement was no longer in the child’s best interest under J & J Timber Co. v. Broome, 932 So.2d 1 (Miss.2006), which held that settlement with a tortfeasor precluded recovery against the tortfeasor’s employer under a theory of vicarious liability.5 But the Guardians abandoned this argument after this Court decided Whitaker v. T & M Foods, 7 So.3d 893 (Miss.2009), which held that the retroactive application of J & J Timber to the releases at issue violated the Contracts Clause of the Mississippi Constitution.

¶ 9. The Guardians filed an amended petition to set aside settlement under “Rule 60(b).” See Miss. R. Civ. P. 60(b). In their amended petition, the Guardians argued that the chancellor still should set aside the settlement based on their recent discovery that Carpenter had a $1,000,000 insurance policy with coverage in this matter. They argued that the policy never was disclosed to them or the court prior to the settlement. The Guardians also argued that prior counsel had failed to make any effort to prosecute the case or conduct any discovery in order to negotiate a proper settlement.

¶ 10. In response to the amended petition to set aside settlement, Carpenter argued that the chancellor had no authority to consider the motion under Rule 60(b)(1), (2), or (3) because it was untimely. Carpenter also argued that the parties had entered into a settlement one year after the Guardians had filed the complaint in circuit court, and that the Guardians’ former counsel had had adequate time to review medical records and discuss with experts a reasonable settlement value. Carpenter argued that setting aside the settlement would be an injustice and would force her to litigate a case that the circuit court had dismissed with prejudice three years earlier.

[1161]*1161¶ 11. The Guardians then filed a supplement to their amended petition to set aside settlement. Attached to the supplement were affidavits, in which both Guardians averred that they never were informed by their previous counsel of Carpenter’s potential liability, any expert opinions regarding Carpenter’s negligence, the value of their case, or the amount of Carpenter’s liability insurance. The Guardians claimed that, had they known this information, they never would have agreed to the settlement of $25,000.

¶ 12. After a hearing, the chancellor issued an order granting the petition to set aside settlement. Without identifying a specific subsection of Rule 60(b), the chancellor found that:

[TJhere was insufficient evidence at the time of settlement and at the August 11, 2005, hearing on Petition to Approve Settlement to establish that Petitioner’s settlement with Defendant Laura Carpenter was fair and reasonable and in the best interests of the minor, Ryheim Banks. Further, additional evidence has been presented to the Court which demonstrates that the $25,000 settlement with Ms. Carpenter was not fair and reasonable and in the minor’s best interest.

Carpenter argues on appeal that the chancellor abused his discretion in setting aside the settlement under Mississippi Rule of Civil Procedure 60(b).

DISCUSSION

I. Whether the chancellor abused his discretion by not including findings of fact and conclusions of law with his order.

¶ 13. As a preliminary matter, Carpenter argues the chancellor abused his discretion by not including findings of fact and conclusions of law with his order. In support of this argument, Carpenter relies on Mississippi Rule of Civil Procedure 52(a) and our decision in Tricon Metals & Services, Inc. v. Topp, 516 So.2d 286 (Miss.1987). Rule 52(a) provides that:

In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly.

Miss. R. Civ. P. 52(a) (emphasis added).

¶ 14.

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Cite This Page — Counsel Stack

Bluebook (online)
58 So. 3d 1158, 2011 Miss. LEXIS 89, 2011 WL 448642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carpenter-v-berry-miss-2011.