Edward A. Williamson v. Lisa Edmonds ( 2003 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-IA-01099-SCT
EDWARD A. WILLIAMSON, INDIVIDUALLY, AND
EDWARD A. WILLIAMSON, P. A.
v.
LISA EDMONDS AND LARRY EDMONDS
DATE OF JUDGMENT: 4/10/2003
TRIAL JUDGE: HON. LARRY EUGENE ROBERTS
COURT FROM WHICH APPEALED: KEMPER COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: JOHN BENTON CLARK
SIMINE BAZYARI REED
ERNEST G. TAYLOR
SHANDA L. LEWIS
ATTORNEY FOR APPELLEES: GEORGE W. HEALY, IV
NATURE OF THE CASE: CIVIL - LEGAL MALPRACTICE
DISPOSITION: AFFIRMED AND REMANDED - 08/12/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
SMITH, CHIEF JUSTICE, FOR THE COURT:
Procedural History
¶1. Lisa and Larry Edmonds (the Edmondses) sought a declaratory judgment in the Circuit Court of
Kemper County, Mississippi, against attorney Edward A. Williamson and his law firm, Edward A.
Williamson, P.A. (hereinafter Williamson), alleging Williamson breached his duty of care, contractual
obligations, and duty of loyalty to his clients. Subsequently, the Edmondses filed an amended complaint
against Williamson demanding a total of $1,000,000 in damages, attorney fees and other relief.
¶2. The Edmondses served discovery requests on Williamson. Williamson responded by arguing that
much of the information was privileged or otherwise confidential pursuant to the confidentially agreement
contained in the settlement. Williamson settled the Edmondses' claims along with other named and
unnamed plaintiffs in connection with Annette Williams, et al. v. American Home Products Corp.,
Cause No. 2000-207, pursuant to the Qualified Settlement Fund (QSF) order entered in the Circuit Court
of Holmes County, Mississippi, in compliance with the regulations established by the Internal Revenue
Service.
¶3. Williamson objected to answering the Edmondses' propounded interrogatories and requests for
documents maintaining that they violated attorney-client privilege and the confidentiality agreement
contained within the settlement relating to Williamson's representation of other Phen-Fen clients included
in the settlement, including the names of all of Williamson's Phen-Fen clients, the total settlement amount,
and the amount of all individual settlements. Williamson argued that disclosure would violate the contractual
confidentiality of the settlement and the QSF order.
¶4. The QSF order entered by the Holmes County Circuit Court contained the following provisions:
5. Upon delivery of the consideration to be paid by the defendant and delivery of the
signed Confidential Releases by all plaintiffs and claimants, the liability of the
defendant, American Home Products Corporation, shall be extinguished.
6. All parties to this settlement and their lawyers and representatives and the
Administrator; shall keep the terms of this settlement confidential and the
proceedings herein sealed.
The Edmondses filed their motions to compel answers to the propounded interrogatories and requests for
production of documents. Williamson responded again asserting attorney-client privileges on behalf of his
other clients involved in the settlement and arguing that the confidentiality agreement incorporated into the
QSF order issued by the Circuit Court of Holmes County barred disclosure.
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¶5. Williamson also filed a motion for protective order to prohibit the Edmondses from seeking
discovery of confidential settlement documents and information attaching the Holmes County Circuit Court
QSF order. Williamson later filed a supplemental motion for protective order seeking also to prevent the
taking of the deposition of, and the production of subpoenaed documents by, Dr. Malcolm Taylor, a
medical expert in the Holmes County Circuit Court litigation against American Home Products Corporation
(hereinafter American Home).
¶6. Several former plaintiffs in the Holmes County Circuit Court litigation represented at this time by
counsel other than Williamson intervened for the limited purpose of asserting their claims of legal and
medical privileges.
¶7. Williamson filed a motion to dismiss or transfer the case to Holmes County Circuit Court.
Following a hearing held regarding venue and discovery issues, the Kemper County Circuit Court issued
its Memorandum Opinion and Order denying Williamson's motion to dismiss or transfer to Holmes County,
granting Edmondses' motion to compel as to attorney-client and physician-patient privileges, and ordering
the parties to seek relief from the Holmes County Circuit Court from the confidentiality provision of the
QSF Order. Williamson moved to reconsider or in the alternative, to certify the issues for interlocutory
appeal. In turn, we granted permission for this interlocutory appeal. See M.R.A.P. 5.
Facts
¶8. Williamson represented 31 clients and their spouses in Phen-Fen product liability litigation against
American Home. The Edmondses were among Williamson’s clients. On November 12, 2000, Lisa first
met with Williamson at his law office in Philadelphia, Neshoba County, Mississippi. Five days later, Lisa
returned to Williamson's law office in Philadelphia to sign a contract of representation. Williamson filed suit
on behalf of 14 named plaintiffs out of the 31 clients in Annette Williams, et al. v. American Home
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Products Corp. in the Circuit Court of Holmes County. The Edmondses were not named as plaintiffs.
Williamson prosecuted the claims of all 31 clients, whether named or unnamed in the litigation.
¶9. On April 24, 2001, Williamson negotiated an aggregate settlement on behalf of the 31 clients and
their spouses in Annette Williams, et al v. American Home Products Corp. in the Circuit Court
of Holmes County. In the QSF order, the Holmes County Circuit Court approved the settlement as
negotiated by Williamson. Additionally, the trial court sealed the terms of the settlement. Each client
executed a release and confidentiality agreement in exchange for a monetary settlement. Lisa executed her
settlement documents at Williamson's law office in Philadelphia, Mississippi. Subsequent to Lisa’s
executing the settlement documents, her husband, Larry, settled his loss of consortium case. Larry
executed the settlement documents at Williamson's law office in Philadelphia.
¶10. The Edmondses lived in Kemper County, Mississippi. During the course of his representation,
Williamson's law office mailed documents to Lisa at her Kemper County residence, via US Mail, and hand-
delivered one letter to Lisa at her home by Williamson’s legal assistant.
¶11. On interlocutory appeal, Williamson raises the issue of whether the trial court erred in not
transferring venue from Kemper County. Williamson also raises the issue of attorney-client privilege and
doctor-patient privilege for the medical information and the confidentiality agreement contained in the QSF
order entered by the Holmes County Circuit Court. Williamson argues that each of these prevent the
disclosure of the information requested by the Edmondses.
Legal Analysis
I. Whether the Trial Court Erred in Denying the Defendants’ Motion
to Transfer Venue?
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¶12. The Edmondses filed their complaint in this action on July 15, 2002. Thus, the amendments to the
venue statute which went into effect on January 1, 2003, are not applicable to the case sub judice as per
Section 16 of 2002 Miss. Laws, 3d Ex. Sess., ch. 4, which states: “This act shall take effect and be in force
from and after January 1, 2003, and shall apply to all causes of action filed on or after that date.” The
applicable venue statute, prior to that amendment, read in pertinent part:
Civil actions of which the circuit court has original jurisdiction shall be commenced in the
county in which the defendant or any of them may be found or in the county where the
cause of action may occur or accrue and, if the defendant is a domestic corporation,
in the county in which said corporation is domiciled or in the county where the cause of
action may occur or accrue, except where otherwise provided . . . .
Miss. Code Ann. § 11-11-3 (1) (Supp. 2001) (emphasis added). As amended, the section omits the
accrual language.
¶13. An application for a change of venue is addressed to the discretion of the trial judge, and his ruling
thereon will not be disturbed unless it clearly appears that there has been an abuse of discretion or that the
discretion has not been justly and properly exercised under the circumstances of the case. Beech v. Leaf
River Forrest Prods., Inc., 691 So. 2d 446, 448 (Miss. 1997) (quoting Miss. State Highway
Comm’n v. Rogers, 240 Miss. 529, 128 So. 2d 353, 358 (1961). Additionally, the trial court must give
the plaintiff the benefit of reasonable doubt with respect to venue selection, and this Court must do the same
on appeal. Pisharodi v. Golden Triangle Reg’l Med. Ctr., 735 So. 2d 353, 354 (Miss. 1999). It
is well-established that the plaintiff is entitled to choose between any of the permissible venue options where
credible evidence or factual basis supports the venue selected. See Wal-Mart Stores, Inc. v. Johnson,
807 So. 2d 382, 387 (Miss. 2001); Earwood v. Reaves, 798 So.2d 508,513 (Miss. 2001); Forrest
County Gen. Hosp. v. Conway, 700 So. 2d 324, 325 (Miss. 1997). A substantial component of the
claim must have taken place in the county for venue to exist where the alleged act or omission occurred.
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See Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1157 (Miss. 1992). See also Earwood, 798
So. 2d at 513 (holding that Covington County, where receipt of the check for an allegedly insufficient
amount occurred, would be a substantial component of the claim); Conway, 700 So. 2d at 325.
¶14. In Tanksley, an airplane was improperly loaded in Warren County, Mississippi. Tanksley, 608
So. 2d at 1153-54. The plane flew to Chicago, Illinois, where Tanksley was injured while unloading the
plane. Id. Tanksley's injury was the result of the improper loading. Id. This Court found venue to be
proper in Warren County finding that the injury could not have occurred without the negligent loading. Id
at 1156-57. We stated:
In the final analysis, venue is about convenience. The legislative prescription implies a
legislative finding counties meeting certain criteria will generally be more convenient to the
parties. The use of "occur" makes sense because important witnesses will often be
accessible where the action occurs. Yet, there is nothing in the phrase "where the cause
of action may occur . . . " that limits the judicial search for but a single county. Torts arise
from breaches of duties causing injuries, and it is common experience that breach and
causation and impact do not all always happen at once. At the very least, the word
"occur" connotes each county in which a substantial component of the claim takes
place, and this may include, in the present context, the negligent conduct which substantially
undergirds Tanksley's claim.
Tanksley, 608 So. 2d at 1157. See also Earwood, 798 So. 2d at 513 (quoting Tanksley, 608 So. 2d
at 1157).
¶15. As correctly stated by the trial court, Miss. Code Ann. § 11-11-3 (Supp. 2001), the governing
Mississippi venue statute, as it existed when the suit was filed is applicable in this case. For venue
purposes, a cause of action accrues “either where the actual tortious conduct occurs or where the plaintiff
suffers actual injuries from the negligence.” Wal-Mart Stores, Inc. v. Johnson, 807 So. 2d 382, 387
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(Miss. 2001). This Court defined and distinguished the “occur” and “accrue” language found in Flight
Line, Inc. v. Tanksley, 608 So. 2d 1149, 1156 (Miss. 1992), by stating:
‘Occur’ and ‘accrue’ are not synonymous, legally or otherwise, as the disjunctive
connector forthrightly suggests. We read accrual in its formalistic sense. A cause of action
accrues when it comes into existence as an enforceable claim, that is, when the right to sue
becomes vested ... this may well mean the moment injury is inflicted, that point in space
and time when the last legally significant fact is found...
¶16. Here, the trial court found that the “correspondences, documents, phone calls, and personal contact
between plaintiffs, defendants, and defendants’ employees all occurred in Kemper County during the
course of the representation.” Although Holmes and Neshoba Counties are also proper venues for this
action, the plaintiff is afforded the right to choose among permissible venues and this “choice must be
sustained unless in the end there is no credible evidence supporting the factual basis for the claim of venue.”
Tanksley, 608 So. 2d at 1155.
¶17. To support their claim for breach of contract and breach of the duties of loyalty and care, the
Edmondses rely upon conversations and correspondence carried out or received in Kemper County, their
county of residence. Although Williamson now claims “only a few documents were mailed and one was
delivered to the Edmondses in Kemper County,” Williamson admitted “there was a lot of things sent to Ms.
Edmonds in Kemper County” and “everything that was of interest in the case” was sent to Ms. Edmonds
in Kemper County. The information sent to Kemper County is central to the Edmondses’ allegations of
breach of the duties of loyalty and care by their attorney. Williamson further admits that when the
Edmondses failed to sign the release to settle the claims in his Neshoba County office, his assistant Glinda
Bowles, more commonly known as “Kookie,” was sent to hand-deliver the release the very next day. The
Edmondses refused to sign the release because Williamson only showed Lisa the release and structured
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settlement and he settled for less than the amount previously discussed and agreed upon. The Edmondses
allege Williamson threatened to drop Lisa’s case and proceed with “his attorney lien on any lawsuit in the
future,” telling Lisa she “wouldn’t be able to find another attorney” to take her case. In addition to
delivering the release to the Edmondses in Kemper County, the Edmondses allege that after their
conversation with Kookie, combined with discussions and correspondences had directly with Williamson,
they decided to sign the agreement and did so at the Williamson office in Neshoba County soon after
Kookie’s visit. Williamson also admitted that Kookie was responsible for certain aspects of his operation
and described “Kookie’s relationship as more of the contact person.”
¶18. The Edmondses’ complaint specifically alleges Williamson induced Lisa to sign a release agreement
retroactively accepting and approving his actions. Although Williamson stated that explaining all the
settlement documents and their implications was not Kookie’s job, when asked whether he was aware that
Kookie had a conversation with Lisa concerning the document and all aspects of the settlement in Kemper
County when she delivered the settlement release papers to the Edmonds home, Williamson replied: “Well,
I’m sure knowing Kookie, she had a conversation with Ms. Edmonds, yes.” In telephone conversations
and correspondences, the Edmondses dealt primarily with Kookie. Williamson downplays Kookie’s role
in his operation. However, it was Kookie who did all the leg work in obtaining clients for Williamson.
When Lisa received medical treatment for her heart condition, the receptionist at the doctor’s office “came
back with Kookie’s name. She didn’t give ... you know, Williamson law firm. She just said Kookie. Call
her at this number.” When Lisa contacted Kookie, Lisa testified: “Kookie told me that I might have to live
on oxygen. And that I could possibly die from pulmonary hypertension. And that I needed to do
something immediately or I would lose my rights. There’s a time frame you have. And she suggested that
I come and meet with her. She said she could be in the office the next day on a Saturday.” Lisa testified
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that she knew little about her condition and that “Kookie went into further detail with me.” The complaint
alleges and the depositions of the Edmondses show that Kookie played a far greater role than
acknowledged by Williamson. The allegations of the complaint as supported through the Edmondses’
depositions satisfactorily establish credible evidence of a factual basis to support their selection of venue
in Kemper County. As such, the trial court did not act unjustly or improperly. The trial court clearly acted
within the bounds of its authority in denying Williamson’s venue challenge.
¶19. Most important in establishing where accrual or substantial components of the claim took place,
however, is Kookie’s visit to Kemper County. The Edmondses expressed their dissatisfaction with the
alleged unauthorized settlement amount and left the Neshoba County office without signing the documents
one day before Kookie’s visit to Kemper County. According to Larry, Kookie’s understanding that a
“contribution to the Mississippi Trial Lawyers Association ... was one of the conditions” for receiving the
settlement amount Lisa had initially agreed to allegedly influenced their decision to sign the release and settle
their claims. The Edmondses, who had walked out on Williamson the day before refusing to sign the
release, talked with Kookie during her visit to their home and were ready to sign. Therefore, the visit,
conversation, and representations are pivotal to the Edmondses’ new claims, particularly as they pertain
to the breach of duty of care and loyalty claims alleged. Much like the facts in Tanksley, the Edmondses
claim that their injury was at least substantially, if not wholly, the result of Kookie’s visit to Kemper County
and conversation with the Edmondses. Kookie’s visit and conversation with the Edmondses were the last
legally significant facts. See also Earwood v. Reaves, 798 So. 2d at 513 (quoting Tanksley, 608
So. 2d at 1157). This case substantially occurred or accrued when the alleged tortious inducement by
Williamson through Kookie took place in Kemper County. The injury did not occur due to the mere entry
of the consent judgment. The Edmondses allege they were injured because they were not informed of all
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the details of the settlement, were misled, or were outright lied to by Williamson and/or his agent, Kookie.
Without the visit and conversation with Kookie and Williamson through contacts with the Edmondses in
Kemper County, no consent judgment would exist as to the Edmondses. The consent judgment
compounded the underlying injury suffered by the Edmondses as a result of the alledged misrepresentations,
communications, and/or contacts they had with Kookie and Williamson via in-person contact, telephone
conversations, and correspondences received in Kemper County. Thus, venue in Kemper County is
proper.
¶20. In a breach of contract, duty of loyalty, and duty of care case, it is not unreasonable to infer that
the communications between an attorney and his client are a substantial component of the claims. All
correspondence was sent to Kemper County. Additionally, the content of the correspondences between
the Edmondses and Williamson characterize the attorney-client relationship and directly put into play the
question of whether the Edmondses were given full disclosure and were indeed made aware of the specifics
of the settlement agreement. Although a part of their claim occurred in Holmes County where the consent
judgment was entered, the cause of action did not accrue upon its entry but accrued during the conversation
in Kemper County which influenced the Edmondses to sign the release. Even assuming that the
Edmondses’ causes of action did not accrue during their conversation with Kookie in Kemper County,
substantial components of their claims occurred through correspondences, documents, phone calls, and
personal contacts. What the Edmondses were told about the settlement in Kemper County via telephone,
mail, and personal contact are all substantial components of their claims. The components, which occurred
in Kemper County, are indeed the factual bases of their claims.
¶21. We hold that the trial court correctly applied the statute in this case and found credible evidence
suggesting that the Edmondses’ causes of action accrued and/or occurred in Kemper County such that
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venue was proper therein. As such, the trial court did not abuse its discretion in denying Williamson’s
motion to change the venue.
II. Whether the Trial Court Erred in Granting the Plaintiffs’ Motion
to Compel Disclosure and Production of Privileged Information?
¶22. "The attorney-client privilege is the oldest of the privileges for confidential communications known
to the common law." Hewes v. Langston, 853 So. 2d 1237, 1244 (Miss. 2003) (citing Upjohn Co. v.
United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981)). "Its purpose is to
encourage full and frank communication between attorneys and their clients and thereby to promote
broader public interests in the observance of law and administration of justice." Id. at 1249. “That
purpose, of course, requires that clients be free to make full disclosure to their attorneys.” United States
v. Zolin, 491 U.S. 554, 562, 109 S. Ct. 2619, 105 L. Ed. 2d 469 (1989). In its version of the attorney-
client privilege, Mississippi follows the uniform rule adopted by a majority of the states.
¶23. Rule 502(b) of the Mississippi Rules of Evidence defines the privilege as follows:
(b) General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent
any other person from disclosing confidential communications made for the purpose of
facilitating the rendition of professional legal services to the client (1) between himself or
his representative and his lawyer or his lawyer's representative, (2) between his lawyer and
the lawyer's representative, (3) by him or his representative or his lawyer or a
representative of the lawyer to a lawyer or a representative of a lawyer representing
another party in a pending action and concerning a matter of common interest therein, (4)
between representatives of a client or between the client and a representative of the client,
or (5) among lawyers and their representatives representing the same client.
Miss. R. Evid. 502(b). See also Jackson Med. Clinic for Women, P.A. v. Moore, 836 So. 2d 767,
771 (Miss. 2003); See also Miss. Rules of Professional Conduct R. 1.6. This Court has interpreted the
scope of the attorney-client privilege under Mississippi law broadly, stating:
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the privilege relates to and covers all information regarding the client received by the
attorney in his professional capacity and in the course of his representation of the client.
Included are communications made by the client to the attorney and by the attorney to the
client. In that sense it is a two-way street.
Barnes v. State, 460 So. 2d 126, 131 (Miss. 1984) (emphasis added). Further: "[t]he privilege does not
require the communication to contain purely legal analysis or advice to be privileged." Dunn v. State
Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir. 1991) (applying Mississippi law). "Instead, if a
communication between a lawyer and client would facilitate the rendition of legal services or advice, the
communication is privileged." Id. at 875. A significant part of the attorney-client privilege for purposes of
this appeal is the "common interest" privilege, as set forth in Miss. R. Evid. 502, cmt. (b)(3). According to
the comment to the rule: "The privilege extends to statements made in multiple party cases in which different
lawyers represent clients who have common interests." Miss. R. Evid. 502.
¶24. Williamson asserts that they cannot disclose the confidential information surrounding the American
Home settlement because the settlement pertains to thirty-one other clients. Mere joint representation
cannot act as shield against an attorney malpractice action. Although there are no prior Mississippi cases
which directly speak to the issues presented here, we are guided by the Mississippi Rules of Evidence, the
Mississippi Rules of Professional Conduct, and the wisdom of our court in other states which have more
squarely dealt with the issue here presented.
¶25. In many jurisdictions, joint representation of clients creates an exception to the general rule barring
the disclosure of material protected by the attorney-client relationship. The joint representation exception
to the general rule barring disclosure is based on the assumption that all clients engaged in an aggregate
settlement are entitled to disclosure.
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A lawyer who represents two or more clients shall not participate in making an aggregate
settlement of the claims or against the clients . . . unless each client consents after
consultation, including the disclosure of the existence and nature of all the claims . . .
involved and of the participation of each person in the settlement.
Miss. Rules of Professional Conduct 1.8(g).
¶26. In absence of an opinion directly on point in Mississippi, the trial court prudentially relied upon the
most similar facts and law as presented in Scrivner v. Hobson, 854 S.W.2d 148 (Tex. Ct. App. 1993).
In Scrivener, former clients brought a legal malpractice action against their former attorney who
represented them and other families in an environmental lawsuit, alleging that the attorney settled the lawsuit
without authority, incorrectly calculated the value of their share of the settlement proceeds, and
impermissibly divided the shares of settlement attributable to their property with prior landowners. The
Texas Court of Appeals held that the documents requested regarding the aggregate settlement came within
the exceptions to the attorney-client privilege. Id. at 151-52. In Scrivner, the court interpreted Rule 503
of the Texas Rules of Evidence, which is identical to Rule 502 of the Mississippi Rules of Evidence, holding
that:
Where parties display mutual trust in a single attorney by placing their affairs in his hands,
the attorney must disclose to the others all opinions, theories, or conclusions regarding the
clients’ rights or position to other parties the attorney represented in the same matter.
Cousins v. State Farm Mut. Auto. Co., 258 So. 2d 629. 636 (La. App. 1972). With
regard to the attorney-client privilege, the general rule is that, as between commonly
represented clients, the privilege does not attach to matters that are of mutual interest. See
Tex. R. Civ. Evid. 503(d)(5). Hence, it must be assumed that if litigation eventuates
between the clients, the privilege will not protect any such communications, the client
should be so advised.
854 S.W.2d at 151.
¶27. Under Mississippi Rule of Professional Conduct 1.8 (g), documents requested in discovery
involve matters of interest common to all the plaintiffs involved in the aggregate settlement. The logic of
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Scrivner indicates that when an attorney represents joint clients in obtaining a joint settlement for which
no individual negotiations on behalf of any one client were undertaken, the client may have access to the
documents which pertain to the case. Id. In regard to an attorney’s duty to his client, the Scrivner court
stated that the documents requested “are relevant to the claims of the [former clients] that the proceeds of
the aggregate settlement were improperly and fraudulently distributed among the various plaintiffs in the
environmental lawsuit.” Id. The Scrivner court held that the former clients could obtain discovery of the
documents under the exceptions to the attorney-client or attorney work product privileges. Id.
¶28. We agree with the trial court’s analysis of this case. We concur that by virtue of representing some
thirty-one clients jointly in litigation, mediation and settlement, the joint client exception to the Mississippi
Rules of Evidence is applicable in this case such that Williamson cannot shield himself from a motion to
compel discovery based on the attorney-client privilege. Under Mississippi Rule of Professional Conduct
1.8(g), Williamson obtained a lump sum aggregate settlement for all of his clients during settlement
negotiations. In determining whether the proceeds of the aggregate settlement were improperly or
fraudulently distributed among the various plaintiffs in the American Home suit, the information requested
by the Edmondses is highly relevant to their claims of breach of contract and breach of the duties of care
and loyalty. The client is entitled to know the amount of the settlement, and the basis for the calculations,
distributions and accounting of the proceeds of the settlement with American Home.
¶29. Additionally, Williamson asserts that the physician-patient privilege prevents disclosure of the
documents. However, Miss. R. Evid. 503(a)(4) defines a communication as confidential only where it is
not intended to be disclosed to third persons. Additionally, [a]ny party to an action or proceeding . . . who
by his or her pleadings places in issue any aspect of his or her physical, mental, or emotional condition
thereby and to that extent only waives the privilege otherwise recognized. . . .” Miss. R. Evid. 503(f).
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The comment to this rule suggests the waiver should only apply to the American Home action. The
comment is persuasive, however, because the plaintiffs in the American Home settlement used their medical
condition as a sword to further their case against the company, they cannot now use the physician-patient
privilege as a shield to entirely protect information which weighed heavy in the negotiation and settlement
of their case and is highly relevant to the Edmondses’ malpractice action.
¶30. Finally, Williamson argues that the confidentiality agreement signed by the Edmondses and the QSF
order purporting to seal the settlement prohibit disclosure of the information sought. The confidentiality
agreement and the QSF order were put into place to prevent public dissemination of any information
indicating the existence of litigation or settlement, not to prevent the Edmondses from obtaining information
relating to the case they participated in as plaintiffs.
¶31. This Court adopts a modified, narrower view of Scrivner. This problem in conjunction with the
aforementioned privilege issues presented is easily remedied by the trial judge. Instead of opting for the
most severe course of action and barring the Edmondses from obtaining this potentially highly relevant
information due to privilege, the confidentiality agreement or the QSF order, or requiring all documents
requested to be disclosed as in Scrivner and as the trial court ordered here, we hold that the following
procedure shall be followed. On remand, the trial court shall review all of the documents objected to by
Williamson and the other American Home plaintiffs. The trial court shall conduct an in-camera inspection
of all documents requested in discovery and objected to by Williamson to ascertain relevancy and
admissibility in the Edmondses’ case at bar. The trial court shall require of the defense counsel to redact
all information specifically identifying the other plaintiffs (i.e. name, address, etc.) in the American Home
settlement, medical records of other plaintiffs, documents related to attorney/client issues, and any other
information the trial court holds should be redacted. With respect to the persons about whom settlement
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and medical information has been requested, Williamson shall provide the Edmondses a chart which lists
the persons, identified only as #1, #2, #3, etc. For each person, the defendant shall provide: (1) the
medical diagnosis, (2) additional information, if any, which affected the amount of settlement, and (3) the
amount of settlement. In the event that the Edmondses request verification of the information provided by
Williamson, Williamson shall provide medical records, settlement documents and other such documents
as are necessary to the trial court, in camera, so that the trial court can verify the accuracy of the
information on the chart. The trial court shall allow a reasonable time for inspection of the redacted
documents by the person, or his or her counsel, before the documents are produced to the Edmondses.
¶32. Enabling members of the bar to wholly shield themselves from malpractice actions through the
invocation of privileges, confidentiality agreements, and QSF orders would do a tremendous disservice to
the public at large, as well as the legal profession . Indeed, if this Court found otherwise, a dangerous
precedent would be set encouraging attorneys to advise their clients to sign and agree to confidentiality
agreements and QSF orders in order to sidestep potential malpractice liability after a case is settled.
Conclusion
¶33. For the reasons set out above, we agree with the Circuit Court of Kemper County and hereby
affirm its judgment and remand this case with instructions for further proceedings consistent with this
opinion.
¶34. AFFIRMED AND REMANDED.
COBB, P.J., CARLSON AND DICKINSON, JJ., CONCUR. WALLER, P.J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY AND
RANDOLPH, JJ. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY WALLER, P.J., AND RANDOLPH, J. DIAZ AND GRAVES, JJ., NOT
PARTICIPATING.
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WALLER, PRESIDING JUSTICE, DISSENTING:
¶35. I respectfully disagree with the majority's finding that venue is proper in Kemper County. Clearly,
under the circumstances of this case, venue is proper in Neshoba County.
¶36. Williamson's main office is in Neshoba County in the City of Philadelphia. He resides in Neshoba
County. Williamson's first meeting with Lisa Edmonds was in his Philadelphia office. A few days later, Lisa
returned to Philadelphia to sign a contract of representation. All settlement documents were signed in
Philadelphia.
¶37. In support of retaining venue in Kemper County, the majority cites the venue statute and contacts
made by Williamson's office in Kemper County. The venue statute which was in effect at the time of the
filing of the Edmondses' complaint, provides that suit may be filed where the defendant or any of them may
be found or where the cause of action may occur or accrue. Miss. Code Ann. § 11-11-3(1). It is evident
that the defendants (Williamson, personally, Edward A. Williamson, P.A.) may be found in Philadelphia,
where Williamson's office is and where the legal services were performed. The alleged wrongdoing took
place in Philadelphia. It did not take place in Kemper County, and Williamson and Williamson P.A. cannot
be found in Kemper County.
¶38. Kemper County contacts include correspondence received in Kemper County and one visit by a
Williamson employee, Kookie Bowles. All correspondence and documents the Edmondses received in
Kemper County were drafted in Neshoba County. The majority also emphasizes the role that Williamson's
assistant, Kookie, played. Kookie played only a minor role. All of her contacts, except for one visit to
Kemper County, took place while Kookie was in Neshoba County. As to the alleged fraudulent
inducement that occurred during this visit, no action was taken until Lisa went to Williamson's office to sign
17
the settlement documents. Therefore, under Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1155-57
(Miss. 1992), the final act of the alleged fraudulent inducement occurred in Neshoba County.
¶39. Therefore, I would find that the circuit judge abused his discretion by not transferring venue to
Neshoba County. I respectfully dissent.
EASLEY AND RANDOLPH, JJ., JOIN THIS OPINION.
EASLEY, JUSTICE, DISSENTING:
¶40. Because I fear that this decision rendered by the majority today will have a far reaching and
adverse effect on businesses operating in Mississippi, I am compelled to dissent. In my opinion, affirming
the trial court's retention of venue in Kemper County based on the tenuous argument made by the
Edmondses and accepted by the majority will expand the permissible venues for lawsuits against all
businesses and professionals that operate in Mississippi.
¶41. Williamson is a resident of Neshoba County. Williamson's principal law office is located in
Neshoba County. Williamson also maintained an office in Holmes County for purposes of handling the
Annette Williams, et al. v. American Home Products Corp. litigation. The Edmondses are
residents of Kemper County. Lisa Edmonds's meetings to retain Williamson and to sign a contract for
representation all occurred at Williamson's office in Neshoba County. The Edmondses signed the
settlement documents at Williamson's office in Neshoba County. Williamson's negotiations and conferences
took place in Neshoba County. The QSF order and releases to settle the Edmondses' claim was entered
in the Circuit Court of Holmes County. Williamson's office made telephone calls, sent documents via US
Mail and on one occasion sent his assistant, Kookie Bowles, as a courier to hand-deliver a document to
Lisa Edmonds at her home in Kemper County.
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¶42. The majority contends that Kookie's delivery of the document to the Edmondses is the pivotal
point in this case. The majority's position is that Williamson sent Kookie to the Edmondses' home in
Kemper County to get them to agree to settle after they had previously refused to settle. This is not
supported by Williamson's deposition in which he stated that it was not Kookie's job to advise a client to
settle. He stated that she was merely sent to furnish the Edmondses with the settlement information so they
would be fully informed as to what was going on in the case.
¶43. The record is silent as to Kookie's account or version of events, and the majority relies heavily on
excerpts from Williamson's deposition to support its conclusion that Kookie induced the settlement in
Kemper County. The majority argues that the Edmondses failed to sign the release to settle the claims,
prompting Williamson to send his assistant, Kookie, to hand-deliver the release. The majority's position
is that Kookie negotiated with the Edmondses to induce them to sign the settlement agreement. However,
the record does not actually reflect that Williamson made such a statement. The record excerpt reflects
that Kookie was sent to hand-deliver the confidentiality agreement for the Edmondses to review. In
Williamson's deposition, the record reflects:
Mr. Healy: And isn't it correct that sometime in 2001, that Kookie Bowles
brought the confidentiality agreement to Kemper County to Ms.
Edmonds for the purpose of getting her to acquiesce to the
document?
Mr. Williamson: I wouldn't characterize it in that way at all.
Mr. Healy: How would you characterize it?
Mr. Williamson: I knew I was leaving, and we had had the conversation -- a
conversation which is referred to by the previous testimony the
day before on a Sunday in my office. I knew I was going to be
out of town, and I knew that all the releases were in except Ms.
Edmonds's. And I felt -- I'm cautioned against saying what I fell
instead of what I want I -- I determined that she must be
given full information on this and made completely
aware that we had to have these in, that we -- the date
had been determined to Wednesday, and that if she
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wanted to participate in this litigation settlement,
that she be given full opportunity to do that. I wanted
her to have the benefits of it, and I was going to be out
of town myself. And I wanted that brought to her
attention. I don't have a specific recollection, but I am sure that
I did, in fact, ask Kookie to make sure that one way or the other,
Ms. Edmonds had that in her hands. I was not trying to get her
to acquiesce into anything. I wanted her to have an opportunity
to participate.
Mr. Healy: Was part of Kookie Bowles's responsibility on this
particular day, the Monday after your Sunday
meeting, to further explain to them all implications
of this document?
Mr. Williamson: No, no. That was not her job at all....
(emphasis added).
¶44. The Edmondses never deposed Kookie, and the court papers do not reflect that Kookie was ever
noticed to be deposed. Furthermore, Williamson never stated that he sent Kookie to convince the
Edmondses to settle their claims but merely for her to drop off the settlement information.
¶45. In fact, according to Lisa Edmonds's testimony, it was Williamson who allegedly induced her to
settle or she would have to get another attorney. This occurred before Kookie went to Kemper County
and occurred in Williamson's law office in Neshoba County, Mississippi, on Sunday, May 6, 2001.
Obviously, Lisa Edmonds knew Williamson's position regarding signing the
confidentiality agreement prior to Kookie going to Kemper County on the following
Monday to deliver the settlement information. Lisa Edmonds testified as to the May 6th meeting
in Williamson's office as follows:
Mr. Clark: Tell me what happened at that meeting, who was present and
what occurred as you recall it.
Ms. Edmonds: Who was present was Mr. Williamson, my husband
and myself, May the 6th.
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Mr. Clark: This was May the 6th?
Ms. Edmonds: Uh-huh.
Mr. Clark: All right. What occurred at that meeting?
Ms. Edmonds: I had told him what I wanted for my settlement, and he was encouraging
me to take a structured settlement, which I was adamant about not taking,
because I can manage my own money. And he had told me in a
conversation that he could get me where I wanted to be, that he had some
"wiggle room," were his exact words, wiggle room, and if we would come
into his office and talk to him, we could work something out.
Mr. Clark: He told you that before you came to his office that morning?
Ms. Edmonds: That is correct. That is correct.
Mr. Clark: All right. So what happened on that Sunday morning?
Ms. Edmonds: When I got --
Mr. Healy: Are you talking about Sunday morning in May?
Ms. Edmonds: May the 6th.
Mr. Healy: Thank you.
Ms. Edmonds: We're kind of jumping around. Sorry. When I walked in, we --
we greeted, and I think he actually hugged me. You know, up
until this point, we've still got a good relationship. I believe Mr.
Williamson had some death in his -- deaths in his
family, so I'm sure it was a bad time for him, too, and
my husband realized that, too, it was a bad time for
him, and we probably didn't need to be discussing this
information when he was already clearly upset.
But we did, and when I walked in, he had structured settlement
printout from this firm, Jolly and somebody from Alabama. And
on the first printout he showed me, it had my net settlement or not
net. What I saw is the dollar figure that I'll be putting into the
settlement. It was 1.12, I believe, 1.12, and I said --
Mr. Clark: That's million?
Ms. Edmonds: Million. That I'll be putting in. He was going to show me
how over time I could grow this money to get to
where I wanted to be at this day in present time, and
it would take like a lot of years. I told him, that's not
what we discussed on the phone. That's not it. So as
time went on, he produced another sheet, and it had
on there 1.25.
Mr. Clark: "As time went on' in that same meeting or at a later time?
Ms. Edmonds: Oh, at this same meeting. And it also showed the
breakdown of how much I could take now, and over
time I would get to where I wanted to be at the 1.5.
And then I realized, you know, that's not what we discussed. I
was getting agitated, and he was, too. At some point in time, he
21
pulled off his coat and hurled it across the room in this empty
chair, and by then I'm clearly upset, because he's my attorney,
and we're supposed to have a good relationship, and I'm
supposed to be able to talk to him and have a good relationship,
and it's starting to get really tense in the room.
Mr. Clark: What else do you remember about the meeting?
Ms. Edmonds: I remember -- it was really bad. I told -- he wanted me to
sign a gag order, or I believe it's a settlement release,
and he needed that signed, because he could not do the
-- well, no -- he didn't call it do the deal, but he told
me he had to have everybody signed, and he had to
have the paperwork to American Home Products.
It was a done deal, it was over. There were no more
negotiations, and basically, I could take it or leave it, and if
I didn't take it, he could no longer represent me, and
if I didn't sign the paperwork, then I would be
dropped as a client, and I would have to find me
another attorney, and if I didn't trust him, I could also find
another attorney. I remember him saying that, "if you don't trust
me, you can go find you another attorney right now."
(emphasis added).
¶46. Later, on two separate dates, the Edmondses in fact voluntarily chose to sign the settlement
releases in Williamson's office before a notary public. The fact remains that Williamson advised the
Edmondses that they could get another attorney. Williamson did not say that he would settle their claims
against their will or that their claims had been settled without their consent. The Edmondses had the right
and were obviously advised, according to Lisa Edmonds's own testimony, of their option to retain new
counsel to file suit against American Home if they did not wish to participate with other Williamson clients
in the settlement of the litigation pending in the Holmes County Circuit Court. Williamson informed the
Edmondses that if they wished for him to continue to represent them, they had to participate in the
22
settlement along with all of the Williamson clients represented with claims against Williamson.1 The
Edmondses returned to Williamson's office and signed the releases.
¶47. The majority states that "when asked whether he was aware that Kookie had a conversation with
Ms. Edmonds concerning the document and all aspects of the settlement in Kemper County when she
delivered the settlement release papers to their home, Williamson replied: 'Well, I’m sure knowing Kookie,
she had a conversation with Ms. Edmonds, yes.'" However, the majority does not quote Williamson's
entire response.
¶48. The portion of Williamson's deposition noted by the majority suggests that Williamson had
knowledge that a conversation actually took place regarding the settlement. That is not accurate. The
record actually reflects that Williamson stated that:
Well, I'm sure that knowing Kookie, she had a conversation with Ms. Edmonds, yes. I
wasn't there, and was in -- out of town at the time, and, you know, I have no reason
to say, yea or nay on that.
(emphasis added).
¶49. Viewing Williamson's actual testimony, he did not state that he knew such a conversation took
place between Kookie and Lisa Edmonds. Additionally, the Edmondses never deposed Kookie to
inquire, for the record, what the alleged conversation entailed or whether it actually occurred. Despite
any discussion as to Kookie, the record reflects that both of the Edmondses signed the
confidentiality agreement in Neshoba County on separate dates before a notary public.
1
Since the confidentiality agreement is sealed in the Circuit Court of Holmes County and not
available in the record of review, we are without information to review the terms of the settlement
agreement to know if it included a provision to prevent Williamson from representing any clients against
American Home in the future as many of these types of settlement agreements may require no future
litigation by a specific attorney. However, the fact remains that the Edmondses could have retained new
counsel to file suit if they did not want to accept the terms of the settlement and proceed with Williamson
as their attorney.
23
Williamson settled the Edmondses' claim in Holmes County where the QSF order containing the
confidentiality provision was entered by the Holmes County Circuit Court as to all parties to the settlement.
Furthermore, the Edmondses did not sign the settlement releases in Kemper County when Kookie was
present, but rather they traveled to Neshoba County to sign the document.
¶50. The trial court found that:
This [c]ourt is of the opinion that at least part of the [p]laintiff's causes of action occurred
or accrued in Kemper County. A plaintiff is entitled to choose among proper venues
where to file her case. Therefore, the [p]laintiffs' alleged claims of breach of contract,
negligence and breach of fiduciary duty accrued in Kemper County. The [c]ourt finds that
venue is proper in Kemper County and the Motion to Dismiss or to Transfer to Holmes
County Circuit Court is denied.
¶51. On appeal, Williamson requests this Court to remand this case to have venue transferred to either
Holmes County or Neshoba County. Williamson maintains that venue in Kemper County was improper,
as the alleged cause of action actually occurred in Holmes County where the Edmondses' claim was settled
and the QSF order and its confidentiality provisions was entered, or in the alternative, Neshoba County
where Williamson was retained by the Edmondses, all the settlement documents were subsequently signed
by the Edmondses, Williamson resides and Williamson's primary office is located.
¶52. Miss. Code Ann. § 11-11-3(1) provides the county in civil actions should be commenced, stating:
Civil actions of which the circuit court has original jurisdiction shall be commenced in the
county where the defendant resides or in the county where the alleged act or omission
occurred or where the event that caused the injury occurred. Civil actions against a
nonresident may also be commenced in the county where the plaintiff resides or is
domiciled. Civil actions alleging a defective product may also be commenced in the county
where the plaintiff obtained the product.
¶53. However, as the majority correctly states, the Edmondses filed their complaint in this action on July
15, 2002. As such, the amendments to the statute which went into effect on January 1, 2003, are not
applicable to the case sub judice as per Section 16 of Laws 2002, 3d Ex. Sess., ch. 4 which states: "This
24
act shall take effect and be in force from and after January 1, 2003, and shall apply to all causes of action
filed on or after that date." The applicable venue statute, prior to amendment, reads as follows:
Civil actions of which the circuit court has original jurisdiction shall be commenced in the
county in which the defendant or any of them may be found or in the county where the
cause of action may occur or accrue and, if the defendant is a domestic corporation, in the
county in which said corporation is domiciled or in the county where the cause of action
may occur or accrue, except where otherwise provided, and except actions of trespass on
land, ejectment and actions for the statutory penalty for cutting and boxing trees and firing
woods and actions for the actual value of trees cut which shall be brought in the county
where the land or some part thereof is situated.
¶54. In Tanksley, an airplane was improperly loaded in Warren County, Mississippi. Tanksley, 608
So. 2d at 1153-54. The plane flew to Chicago, Illinois, where Tanksley was injured while unloading the
plane. Id. Tanksley's injury was the result of the improper loading. Id. This Court found venue to be
proper in Warren County since the injury could not have occurred without the negligent action. Id at
1156-57. We stated:
In the final analysis, venue is about convenience. The legislative prescription implies a
legislative finding counties meeting certain criteria will generally be more convenient to the
parties. The use of "occur" makes sense because important witnesses will often be
accessible where the action occurs. Yet, there is nothing in the phrase "where the cause
of action may occur...." that limits the judicial search for but a single county. Torts arise
from breaches of duties causing injuries, and it is common experience that breach and
causation and impact do not all always happen at once. At the very least, the word
"occur" connotes each county in which a substantial component of the claim takes
place, and this may include, in the present context, the negligent conduct which substantially
undergirds Tanksley's claim.
Tanksley, 608 So. 2d at 1157 (emphasis added).
¶55. For venue purposes, a cause of action accrues "either where the actual tortious conduct occurs or
where the plaintiff suffers actual injuries from the negligence." Wal-Mart Stores, Inc. v. Johnson, 807
So. 2d 382, 387 (Miss. 2001). This Court defined and distinguished the "occur" and "accrue" language in
Tanksley, 608 So. 2d at 1156, by stating:
25
'Occur' and 'accrue' are not synonymous, legally or otherwise, as the disjunctive connector
forthrightly suggests. We read accrual in its formalistic sense. A cause of action accrues
when it comes into existence as an enforceable claim, that is, when the right to sue
becomes vested ... this may well mean the moment injury is inflicted, that point in space
and time when the last legally significant fact is found...
¶56. In the case sub judice, venue was not proper in the Circuit Court of Kemper County. The alleged
breach of Williamson's duty of care, contractual obligations or fiduciary duty related to the terms of the
settlement and disbursement of the settlement proceeds did not occur until the settlement documents were
executed by the Edmondses in Neshoba County or until the settlement order, including all of Williamson's
31 clients, was entered by the Holmes County Circuit Court. Therefore, the substantial components of the
claim occurred in Neshoba County and Holmes County, not in Kemper County.2
¶57. Likewise, the Edmondses' allege breach of Williamson's duty of care, his contractual obligations
or his fiduciary duty as related to the term of settlement and disbursement of the settlement proceeds could
not have accrued until the Edmondses agreed to accept the terms of the settlement and the case was
settled.
¶58. The point that the majority argues that a claim accrued is when the Edmondses were furnished
information on the settlement agreement. However, the Edmondses did not sign the documents until in
Williamson's office in Neshoba County. The settlement of the Edmondses' claims was entered in Holmes
County. Williamson never met with the Edmondses in Kemper County. Williamson conducted all
negotiations with the Edmondses in Neshoba County.
2
In the trial court, Williamson's motion was to transfer to the Circuit Court of Holmes County.
Williamson also argued that Holmes County Circuit Court would be the court that would have to unseal
the confidential settlement terms. However, on appeal, Williamson argues that venue would be proper in
either Holmes County or Neshoba County.
26
¶59. The Edmondses' suit against Williamson centers on the terms of contract for representation, the
confidentiality agreement entered in the Circuit Court of Holmes County and receiving the medical histories
and the settlement information on the other clients involved in the American Home litigation. The
Edmondses' complaint against Williamson alleges that he charged a higher percentage, 45%, for his
attorney fees based on having filed suit before the case was settled. The Edmondses contend that since
they were not named plaintiffs in the lawsuit, Williamson's percentage should have been 33 1/3 % because
a suit was not filed for them. The Edmondses also contend that Williamson withheld a 3% settlement fee
from the settlement proceeds that was not stated in the original contract for representation on November
17, 2000, but in a subsequent acknowledgment of expenses on May 9, 2001.
¶60. The Edmondses claim that Williamson took more than he was assigned to receive in the contract
for representation. The Edmondses also seek information regarding how the settlement funds were
disbursed among the other clients and the amounts that each of the other clients received. The Edmondses
also seek to have Williamson release information regarding the settlement that Williamson argues would be
a violation of the terms of the confidentiality agreement, as well as, a violation of the attorney-client
privilege.
¶61. The pivotal point of the claims against Williamson both accrued and occurred when Williamson was
retained as counsel, conducted conferences with the Edmondses regarding their claims, entered into the
settlement negotiations with the Edmondses, all in Neshoba County. The Edmondses also signed the
contract of representation and all settlement paperwork in Neshoba County. The terms of the settlement
were sealed by the Holmes County Circuit Court to remain confidential.
¶62. Furthermore, American Home was party to the litigation in the Holmes County Circuit Court and
to the QSF order and the confidentiality provisions contained therein. At this time, American Home has
27
not been brought into these proceedings to be afforded the opportunity to contest lifting the confidentiality
seal regarding the terms of the settlement in the Annette Williams, et al. v. American Home
Products Corp. litigation entered in the Circuit Court of Holmes County.
¶63. For the foregoing reasons, I therefore must respectfully dissent. Neshoba County is where: (1)
Williamson's main office is located; (2) the initial consultation between Williamson and the Edmondses
occurred; (3) the contract of representation between Williamson and the Edmondses was entered into; (4)
the settlement documents were executed; and (5) Williamson resides. Therefore, venue is proper in
Neshoba County, not Kemper County. The Circuit Court of Kemper County erred in retaining the matter.
¶64. Allowing this case to remain in Kemper County will be a precedent to allow every business or
professional to be sued in multiple jurisdictions based solely on contact by correspondence or telephone
with its customers or clients. This will have a profound effect of expanding the permissible venues for suits
against every professional and business. Therefore, in my opinion, the case should be reversed and
remanded for transfer to the Circuit Court of Neshoba County.
WALLER, P.J., AND RANDOLPH, J., JOIN THIS OPINION.
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