Decisions – Miss.S.Ct. – May 8, 2014 – Two important decisions – attorney client privilege and arbitration agreements

Flechas v. Pitts –  Discovery/privilege issue in  a will contest between Alyce Pitts and Todd Pitts over the estate of Troy Pitts. Alyce and Todd have submitted competing wills.   Apparently lawyer Flechas represents Todd Pitts.  Alyce served Flechas with a subpoena requesting all of the documents regarding all aspects of his representation of Troy Pitts (including divorce, personal injury, wills, etc.).  Flechas sought to withdraw which was denied by the trial court.  He also filed a motion to quash the subpoena based on attorney-client privilege, etc.  The trial court denied the motion to quash pursuant to MRE 502(d)(2).  He filed an emergency interlocutory appeal which was denied.  Further motions were filed and the Court has reconsidered and granted Flechas relief.  First of all, the will contest is the only issue before the court and, thus, there has been no showing that documents regarding other matters in which Flechas represented Troy are relevant.    Secondly, the trial court’s determination that the documents were not privileged under MRE 502(d)(2) is not sufficient.   The Court in Miss. United Methodists v. Brown, 911 So.2d 478, 481-482 (Miss. 2005).  held that blanket statements regarding whether or not documents may or may not be compelled in discovery  are not sufficient  and only an in-camera inspection and subsequent document by document analysis accompanied by citation to the proper rule will meet the requirements for such a determination.   

Response in Opposition to Pitts’ Motion for access to sealed documents

Response to the Trial Court’s filing

The order as summarized in the handdown list: (the first link above will take you to the 11-page order)

 Eduardo A. Flechas v. Alyce Pearl Pitts; Lincoln Chancery Court; LC Case #: 2011-0478; Ruling Date: 05/23/2013; Ruling Judge: Edward Patten, Jr.; Majority Opinion: Waller, C.J. Disposition: The Motion for Reconsideration is denied. The en banc Court’s order filed herein on December 20, 2013, is vacated and withdrawn, and this order is substituted in lieu thereof. Flechas’s Motion for Immediate, Extraordinary Relief, and Petition for Reconsideration and/or Rehearing of Previous Ruling Based on Newly Discovered Evidence and Related Legal Issues is granted. The chancery court’s order 1 of February 1, 2013, is hereby reversed and rendered, and the chancery court’s order 3 of September 13, 2013, is hereby vacated; the chancery court’s order 2 of May 23, 2013, is affirmed as to finding Flechas to be in contempt of court and requiring him to pay attorney fees of $692.50, but is otherwise reversed and vacated; the chancery court shall first review whether the request contained in the subpoena seeks documents relevant under Rule 26 to the only issue before the chancery court at this time, devisavit vel non; Flechas shall produce all documents deemed relevant to the will contests by the chancery court and create a new privilege log, listing which of the relevant documents he believes are privileged; the chancery court shall then conduct an in camera, document-by-document review of the documents claimed privileged, explaining the corresponding rule or exception which may compel the production of the subpoenaed documents; the chancery court shall conduct further hearings as are required to carry out the directions of this order; and the chancery court defer consideration of further sanctions until the discovery issues are fully resolved. The stay entered by this Court on June 20, 2013, and continued on August 29, 2013, is vacated effective upon the issuance of this Court’s mandate; the Motion to Dismiss and to Strike the Motion for Immediate, Extraordinary Relief, and Petition for Reconsideration and/or Rehearing of Previous Ruling Based on Newly Discovered Evidence and Related Legal Issues, or to Partially Strike is denied; Respondent’s Rule 48A(d) Mississippi Rules Appellate Procedure Motion for Access to Sealed Document is denied.
Votes: Dickinson and Randolph, P.JJ., Lamar, Kitchens, Chandler, Pierce, King and Coleman, JJ., Concur.


Judge Primeaux's summary here

Caplin Enterprises v. AinsworthArbitration agreement issues on cert from a Court of Appeals opinion decided in May 2013.  Plaintiffs sued Zippy Check, a delayed deposit check cashing business. At issue were two arbitration agreements. Some plaintiffs had signed the “first agreement” and others a “second.” The trial court found that the arbitration agreement in the first agreement “was intermingled with other non-distinguishable provisions and was typed in finer print than the terms on the front page” and was unenforceable. The second agreement “highlight[ed] the arbitration provision in capital letters and bolded text, and provided a more detailed statement about arbitration than the first agreement.” The trial court found both types unconscionable and denied the motions to compel arbitration.  The Court of Appeals found the first version enforceable and the second  not. The cert. petition filed by the party seeking arbitration presents the issue as whether the trial court erred in finding the first agreement unenforceable where the type was “slightly smaller than the font of other parts of the contract. Other Courts have stated the font must be significantly smaller to make a determination that the smaller font size makes the provision procedurally unconscionable.”

 In so doing, Zippy Check lost the half victory it had in the Court of Appeals because the Miss. S.Ct finds that both are unenforceable affirming the Court of Appeals in part and reversing in part (and affirming what the trial court found).  The agreement in the first version was so one-sided  as to be oppressive and substantively unconscionable. 

The plaintiffs were obviously so desperate for immediate funds that they signed agreements for relatively small amounts of cash for a fee that, if characterized as interest,  would be usurious.  They simultaneously agreed that Zippy Check could institute judicial debt-collection proceedings against them in the event they defaulted on their payment obligations.  The signers of the old version of the contract also agreed that they would pay Zippy Check’s attorney’s fees and other damages, and that Zippy Check’s liability would be limited to the finance charge.  The preprinted contracts were offered on a take-it-or-leave-it basis and were contracts of adhesion.  While an arbitration agreement need not contain identical obligations, under the particular facts of this case, the arbitration agreements were unreasonably favorable to Zippy Check, oppressive, unconscionable, and unenforceable.”  

Thus Blogged Anderson’s take here.

4 thoughts on “Decisions – Miss.S.Ct. – May 8, 2014 – Two important decisions – attorney client privilege and arbitration agreements

  1. Here’s a new interloc. petition on discovery/attorney client privilege issues filed on May 13, 2014 in Royal Indemnity Co. v. Great Amer. E & S Ins. Co.

    Excess insurer Great American sued primary insurer Royal Indemnity and its counsel, Quintairos, Prieto, Wood & Boyer alleging that their negligence in handling four underlying cases against two nursing homes was the sole cause of Great American’s settling those cases. Royal and Quintairos sought discovery from Great American, the nursing homes and their separate counsel of information regarding the settlement of the nursing home suits. The trial court ruled that the discovery was protected by attorney-client and work-product. Royal and Quintairos seek interlocutory review arguing that Great American voluntarily injected the reasons for settling the underlying cases into the suit thereby making this information discoverable notwithstanding the privilege. The case is in the Warren County Circuit Court.

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