Barbour Circuit Court, CV-15-900039)
PETITION FOR WRIT OF MANDAMUS
Daniels petitions this court for a writ of mandamus
compelling the Barbour Circuit Court to vacate its order
severing and staying Daniels's claims against defendants
Joseph Morris, Tracy Cary, and Morris, Cary, Andrews,
Talmadge & Driggers, LLC ("the Morris firm")
(hereinafter Morris, Cary, and the Morris firm are referred
to collectively as the "Morris defendants"), and
also to compel the circuit court to enter a default judgment.
We grant the petition in part and deny it in part.
Facts and Procedural History
lawsuit was filed by Daniels in the Barbour Circuit Court on
September 18, 2015, naming Sherrie Ann Johnson
("Johnson") as the defendant; the complaint was
amended in 2017 to add the Morris defendants. In his amended
complaint, Daniels alleges the following facts:
and Daniels are the parents of Alquwon Johnson. On June 4,
2011, Alquwon committed suicide while he was an inmate in the
Barbour County jail. At the time of his death, Alquwon was
unmarried and had no children.
engaged the Morris firm to pursue a wrongful-death claim
related to Alquwon's death. Johnson petitioned the
Barbour Probate Court for letters of administration for
Alquwon's estate. The petition, which was prepared by the
Morris firm, stated that Johnson was Alquwon's only heir.
On July 5, 2011, the Barbour Probate Court granted Johnson
letters of administration.
August 8, 2011, Johnson, as the personal representative of
Alquwon's estate, filed a wrongful-death action in the
Barbour Circuit Court. Johnson was represented by the Morris
defendants in the wrongful-death litigation. The case was
removed to federal court. In 2015, the case was settled. The
Morris defendants distributed the settlement funds to
Johnson; none of the proceeds were paid to Daniels.
2017, Daniels telephoned the Morris firm to inquire about
retaining the firm to file a wrongful-death suit related to
Alquwon's death. After speaking with an employee of the
firm, Daniels was told that the firm had a conflict of
interest and could not represent him. He later received a
letter from Cary stating that "a lawsuit brought on your
behalf would not be economically feasible given the nature,
facts and circumstances surrounding your case." The
Morris firm did not inform Daniels about the prior lawsuit
and that it had settled the case and paid the settlement
proceeds to Johnson.
September 18, 2015, Daniels filed the underlying action
against Johnson. The suit alleged that, as Alquwon's
father, Daniels was entitled to 50% of the net settlement
proceeds but that Johnson had wrongfully retained the entire
amount. He asserted against Johnson claims of breach of
fiduciary duty and conversion.
August 29, 2017, Daniels filed his first amended complaint,
adding as defendants the Morris defendants and asserting two
claims against them. Count three of Daniels's amended
complaint asserted a claim of fraud against the Morris
defendants. That claim alleged, in part:
"57. Although The Morris Law Firm had actual knowledge
that [Daniels] was the father of [Alquwon], The Morris Firm
"a. To obtain a full and accurate list of heirs at law
"b. To list [Daniels] as an heir of [Alquwon];
"c. To notify [Daniels] of the opening of the estate;
"d. To notify [Daniels] that at least one lawsuit had
been filed on [Daniels]'s ...