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Colson v. Johnson6/8/2000
DATE OF JUDGMENT: 11/16/1998
TRIAL JUDGE: HON. JOHN H. WHITFIELD
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED - 06/08/2000
. This interlocutory appeal is from an order entered November 16, 1998, by the Harrison County Circuit Court denying the Appellant, Dr. Richard Colson's ("Colson"), motion to disqualify plaintiffs' attorney, L. Christopher Breard ("Breard"). The underlying lawsuit is a wrongful death, medical malpractice action brought against Colson, arising out of the January 7, 1994, death of 16-year-old Melissa Johnson and the January 8, 1994, death of her infant son, Shane. The trial court's order, entered on November 16, 1998, held that Colson failed to move for disqualification early enough and as a result waived his right. Specifically, the trial court held that "a grave and irreparable injustice would result to the Plaintiffs if the Court disqualify their attorney four months prior to the date of trial after he pursued the complicated issues of the instant action for almost three years on behalf of the Plaintiffs." It was the trial court's opinion that Colson "held the right to have the Plaintiff's attorney disqualified in reserve for tactical purposes until it would be most helpful to his position." We affirm the trial court's order denying Colson's motion to disqualify.
I.
. On January 5, 1996, this wrongful death action was brought against Dr. Colson and others for the deaths of Melissa Johnson and Shane David Johnson by Robert Johnson ("Johnson"). On April 15, 1996, Colson answered the complaint and filed interrogatories and requests for production of documents. On January 30, 1998, counsel for Colson was served with supplemental discovery answers which identified Dr. Neil Wolfson, a board certified obstetrician, as the expert witness. According to Colson's attorney, it was not until they conducted a background investigation of Dr. Wolfson that they discovered that Plaintiffs' attorney, Breard, had previously represented Colson in 1989. They also discovered that Dr. Wolfson was an expert for the plaintiffs in Thompson and was deposed by Breard, who was at the time defending Colson.
. Upon learning this information, Colson requested that Breard disqualify himself from further representation of the plaintiffs in this case. Breard denied this request, and Colson thereafter filed a motion to disqualify. After a hearing on this matter, the trial court, on November 16, 1998, entered an order denying Colson's motion, but did not expressly rule as to whether Breard should be disqualified from representing plaintiffs pursuant to Rule 1.9 of the Mississippi Rules of Professional Conduct. Instead, the trial court held that Colson failed to move for disqualification at the earliest practical opportunity and, therefore, waived his right to have Breard disqualified. Colson now appeals this matter before this Court in the form of an interlocutory appeal, which we granted pursuant to M.R.A.P. 5.
II.
STANDARD OF REVIEW
. Little case law exists in Mississippi with regard to the standard of review of a trial court's decision of a motion to disqualify an attorney. In Quick Change Oil & Lubrication Co. v. County Line Place, Inc. 571 So.2d 968, 970 (Miss. 1990), we held that manifest error applies only to review of findings of fact and that the court has broad discretion.
III.
. Johnson brings forth two assignments of error before this Court; however, we will address only one since it is dispositive.
A. WHETHER THE TRIAL COURT CORRECTLY RU
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