George Dunbar Prewit, Jr. v. P. Scott Phillips
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CP-01464-COA
GEORGE DUNBAR PREWITT, JR.
APPELLANT
v.
P. SCOTT PHILLIPS
APPELLEE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
6/30/2008
HON. MARGARET CAREY-MCCRAY
WASHINGTON COUNTY CIRCUIT COURT
GEORGE DUNBAR PREWITT, JR. (PRO SE)
P. SCOTT PHILLIPS (PRO SE)
CIVIL – TORTS-OTHER THAN PERSONAL
INJURY & PROPERTY DAMAGE
APPELLANT’S DEFAMATION
COMPLAINT DISMISSED
AFFIRMED – 6/30/2009
BEFORE LEE, P.J., GRIFFIS AND CARLTON, JJ.
LEE, P.J., FOR THE COURT:
PROCEDURAL HISTORY
¶1.
George Dunbar Prewitt, Jr., filed a defamation action against P. Scott Phillips in the
Circuit Court of Washington County. The alleged defamatory statements were made in
connection with Phillips’s representation of Dr. David Lee in a civil action styled George
Dunbar Prewitt v. David Howell Lee, cause number 2003-233, filed in the Washington
County Circuit Court.
¶2.
Phillips filed a motion pursuant to Mississippi Rule of Civil Procedure 12(b)(6) to
dismiss the complaint for defamation filed by Prewitt. The trial court granted Phillips’s
motion to dismiss, finding that Prewitt’s complaint failed to state a cause of action upon
which relief could be granted because the alleged defamatory statements were made in the
course of a judicial proceeding and, therefore, were privileged. Prewitt now appeals,
asserting that the trial court erred in granting Phillips’s motion to dismiss.
FACTS
¶3.
Both parties are licensed attorneys in the State of Mississippi. Prewitt represented
himself, and Phillips represented Dr. Lee in the case in which Prewitt alleges the defamation
occurred. During the pendency of Prewitt v. Lee, Phillips made a motion to dismiss the
complaint against Dr. Lee and a motion for sanctions against Prewitt for violations of
Mississippi Rule of Civil Procedure 11(b) and the Lawyer’s Creed. To support his motion
for sanctions, Phillips attached docket sheets from another civil action in the United States
District Court for the Northern District of Mississippi in which Prewitt was assessed
sanctions and attorney’s fees.
¶4.
The attachment of the docket sheets by Phillips led Prewitt to file the defamation
action. Prewitt’s basis for his complaint was that although sanctions were filed against him
in the district court, the sanctions were not due to his behavior; rather, the sanctions were
retaliation by certain members of the federal judiciary after he pointed out to them “a littlenoticed, 1973 Voting Rights Act violation” that made their appointments as judges illegal.
Prewitt also takes issue with Phillips’s response to a motion that he filed in which Prewitt
alleges
that
Phillips
characterized
his
filing
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as
“incoherent,”
“nonsensical,”
“incomprehensible,” and “less than candid.”
STANDARD OF REVIEW
¶5.
A motion to dismiss under Mississippi Rule of Civil Procedure 12(b)(6) challenges
the legal sufficiency of the complaint and raises an issue of law. T.M. v. Noblitt, 650 So. 2d
1340, 1342 (Miss. 1995); Taylor v. S. Farm Bureau Cas. Co., 954 So. 2d 1045, 1047 (¶3)
(Miss. Ct. App. 2007). This Court conducts a de novo review of questions of law. Noblitt,
650 So. 2d at 1342. “When considering a motion to dismiss, the allegations in the complaint
must be taken as true[,] and the motion should not be granted unless it appears beyond doubt
that the plaintiff will be unable to prove any set of facts in support of his claim.” Id. “[T]he
decision to grant or deny a motion to dismiss is in the discretion of the trial court and will not
be reversed unless that discretion is abused.” State Indus., Inc. v. Hodges, 919 So. 2d 943,
945 (¶2) (Miss. 2006).
DISCUSSION
¶6.
Prewitt argues that the docket sheet filed by Phillips which shows that sanctions were
filed against Prewitt had no relevance to the underlying action and, therefore, should have
been excluded. Phillips asserted in his answer to Prewitt’s complaint that the documents
were privileged because they were part of a judicial proceeding. In the alternative, Phillips
asserted truth as a defense to defamation. Prewitt argues that Phillips cannot use the defense
of truth because the claims against him were false. Specifically, Prewitt argues that the
sanctions were illegal retaliation by certain members of the federal judiciary after he told
them that their appointment as judges was in violation of the Voting Rights Act of 1973.
¶7.
“Statements made in connection with judicial proceedings, including pleadings, are,
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if in any way relevant to the subject matter of the action, absolutely privileged and immune
from attack as defamation . . . .” McCorkle v. McCorkle, 811 So. 2d 258, 266 (¶18) (Miss.
Ct. App. 2001). However, “[t]here is precedent indicating that the presence of malice
prohibits the assertion of judicial privilege.” Id.
¶8.
Because Phillips attached the docket sheets in support of a motion in connection with
a judicial proceeding, we find that the documents filed were privileged and immune from a
complaint for defamation. The docket sheets were related to Phillips’s action because
Phillips’s claim was that Prewitt should be sanctioned pursuant to Rule 11(b), and the docket
sheets reflected that Prewitt had been sanctioned pursuant to Rule 11 in another action by
another court. The docket sheets were public record, and there is no indication that they were
filed by Phillips with malice.
¶9.
Therefore, we find that the trial court did not abuse its discretion in granting Phillips’s
motion to dismiss.
¶10. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
MYERS, P.J., GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ.,
CONCUR. BARNES, J., CONCURS IN RESULT ONLY. KING, C.J., AND IRVING,
J., NOT PARTICIPATING.
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