Pickett v. Gallagher

159 So. 3d 587, 2014 WL 4067212, 2014 Miss. App. LEXIS 444
CourtCourt of Appeals of Mississippi
DecidedAugust 19, 2014
DocketNo. 2012-CP-01155-COA
StatusPublished
Cited by1 cases

This text of 159 So. 3d 587 (Pickett v. Gallagher) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pickett v. Gallagher, 159 So. 3d 587, 2014 WL 4067212, 2014 Miss. App. LEXIS 444 (Mich. Ct. App. 2014).

Opinion

BARNES, J.,

for the Court:

¶ 1. Claude Pickett received a settlement from the makers of the diet drug Fen-Phen in February 2000. In March 2010, he sued his attorneys, claiming he [589]*589was not paid the agreed-to settlement amount. The circuit court found the statute of limitations had run and granted summary judgment in favor of the attorneys. We affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. After the United States Food and Drug Administration warned of dangers associated with the diet drug Fen-Phen, Pickett hired Michael T. Gallagher of Gallagher, Young, Lewis, Hampton, & Downey L.L.P. (Gallagher) to represent him in a lawsuit against the maker of the drug, American Home Products. Robert C. Arledge and Richard Schwartz of Schwartz & Associates P.A. (Schwartz) also retained clients for the litigation, but all clients retained by Arledge and Schwartz were referred to Gallagher. A suit styled Trina Washington v. American Home Products, Cause No. 99-0035, was filed in Jefferson County in 1999. Pickett was one of the five trial plaintiffs. The jury awarded the plaintiffs $30,000,000 each in compensatory damages. The trial court deemed the case appropriate for consideration of punitive damages. But on December 21, 1999, before the punitive-damages issue was submitted to the jury, a settlement was reached, whereby each plaintiff would receive $5,000,000. Pickett signed a settlement release on January 21, 2000. After attorneys’ fees and expenses were deducted, the plaintiffs each received approximately $2,900,000 in February 2000.

¶ 3. Aggrieved with the amount of their settlement checks, on March 22, 2010, three of the five plaintiffs — Pickett, Brenda Hamm, and Kenya Gaines Thompson— filed suit against Gallagher, Schwartz, and Arledge. The plaintiffs alleged they settled for $5,000,000 each, net of attorneys’ fees and expenses; thus, their $2,900,000 checks shorted them $2,100,000. The plaintiffs admit signing a settlement agreement/release prior to receiving their checks. But they argue they were not given an opportunity to review the documents, and their attorneys were not present for them to ask questions. Based on these facts, the plaintiffs’ complaint alleged claims for breach of fiduciary duty, breach of contract, breach of the covenant of good faith and fair dealing, misrepresentation, fraud, civil conspiracy, conversion, unjust enrichment, estoppel and detrimental reliance, fraudulent inducement, and fraudulent concealment.

¶ 4. In response to the complaint, Schwartz filed a motion to dismiss, citing the running of the applicable three-year statute of limitations. Schwartz argued that the limitations period had clearly run, as the plaintiffs’ claims were filed more than ten years after the settlement. The trial court denied the motion, however, finding that fact questions existed regarding fraudulent concealment. The trial court went on to state that “after discovery, if the [p]laintiff has not put forth sufficient evidence to support these claims, these arguments may be properly brought before this [cjourt in a motion for summary judgment.”

¶ 5. Pickett and the other plaintiffs were deposed. Then on December 22, 2011, Schwartz moved for summary judgment, again arguing the statute of limitations had run. Gallagher later appeared specially to join the motion, as he maintained he was never properly served with process. Instead of filing a response, on January 10, 2012, plaintiffs’ counsel filed a motion to withdraw and for an extension of time for the plaintiffs to respond to the summary-judgment motion. The motion to withdraw was granted. Instead of granting more time, the trial court dismissed the plaintiffs’ claims without preju[590]*590dice and instructed them to retain new counsel by May 14, 2012, or inform the trial court in writing if they intended to proceed pro se, at which time the case would be placed back on the docket. The pending summary-judgment motion was set for a hearing on May 14, 2012.

¶ 6. On May 7, 2012, Pickett informed the trial court that he would proceed pro se while looking for new counsel. The May 14 hearing was reset for June 18, 2012. On June 18, Pickett and Thompson appeared in court. Pickett claimed to have retained counsel. However, the attorney with Pickett stated that he had only recently been approached about the case and had not had time to review it. He stated that he would “look into it” if the court granted more time. The trial court denied the request, stating that the plaintiffs had been given two prior extensions of time to retain counsel. The trial court also pointed out that no response was filed to the December 22, 2011 summary-judgment motion. The trial court then told the plaintiffs that if they desired to file anything else, it must be done by the next day.

¶ 7. The next day, Pickett submitted a letter to the court. In the letter, he requested a jury trial and stated:

Information received from American Home Products!,] currently known as Pfizer!,] and the Jefferson County Circuit Clerk indicated several discrepancies in this case. Namely, discrepancies in the amount awarded versus the actual amount paid out. Next, there were five plaintiffs; however, documentation is indicating there were 14 plaintiffs. Thirdly, there also existed a contradiction in the case number I was originally assigned and the case number I was paid under. Furthermore, twelve pages from American Home Products’ release were missing. Lastly, I also was not provided after several requests to receive statements of release from the settling attorney.

¶ 8. The trial court found the letter insufficient to establish a factual basis for a fraudulent-concealment defense to the expired statute of limitations. On June 26, 2012, the trial court granted the defendants’ summary-judgment motion, dismissing the claims with prejudice. Pickett appealed.

STANDARD OF REVIEW

¶ 9. “A trial court’s grant of summary judgment is reviewed de novo.” Johnson v. Pace, 122 So.3d 66, 68 (¶ 7) (Miss.2013). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). The evidence presented must be viewed in the light most favorable to the nonmoving party. Johnson, 122 So.3d at 68 (¶ 7). “However, the opposing party ‘may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial.’ ” Banks ex rel. Banks v. Sherwin-Williams Co., 134 So.3d 706, 710 (¶ 9) (Miss.2014) (quoting M.R.C.P. 56(e)).

DISCUSSION

I. Statute of Limitations

¶ 10. Before beginning, we note that Pickett is proceeding pro se on appeal. Pickett’s brief, which is in the form of a letter, contains various grievances, but no arguments or law. “While pro se litigants are afforded some leniency, they ‘must be held to substantially the same [591]*591standards of litigation conduct as members of the bar.’ ” Sumrell v. State, 972 So.2d 572, 574 (¶ 6) (Miss.2008) (quoting Perry v. Andy, 858 So.2d 143, 146 (¶ 13) (Miss. 2003)). Mississippi Rule of Appellate Procedure 28(a) sets out the requirements for appellants’ briefs.

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Bluebook (online)
159 So. 3d 587, 2014 WL 4067212, 2014 Miss. App. LEXIS 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pickett-v-gallagher-missctapp-2014.