               IN THE SUPREME COURT OF MISSISSIPPI


FRANKLIN COLLECTION SERVICE, INC. AND
UNKNOWN ATTORNEY “A”

v.                                      NO. 2002-IA-00591-SCT

JERRY STEWART AND LEOLA STEWART

                       CONSOLIDATED WITH

FRANKLIN COLLECTION SERVICE, INC. AND
ATTORNEY T. DALE BEAVERS

v.                                      NO. 2002-IA-00592-SCT

R. D. MALONE

                       CONSOLIDATED WITH

FRANKLIN COLLECTION SERVICE, INC. AND
ATTORNEY JEFFREY WALDO

v.                                      NO. 2002-IA-00593-SCT

BRENDA COCKRELL

                       CONSOLIDATED WITH

FRANKLIN COLLECTION SERVICE, INC. AND
ATTORNEY MARY E. MASON

v.                                      NO. 2002-IA-00594-SCT

WALTER & ETHEL WOODS


                       CONSOLIDATED WITH
FRANKLIN COLLECTION SERVICE, INC. AND
ATTORNEY JEFFREY WALDO

v.                                      NO. 2002-IA-00595-SCT

WILLIAM D. BINION

                       CONSOLIDATED WITH

FRANKLIN COLLECTION SERVICE, INC. AND
ATTORNEY T. DALE BEAVERS

v.                                      NO. 2002-IA-00596-SCT

SHALONDA JONES A/K/A SHALONDA SMART

                       CONSOLIDATED WITH

FRANKLIN COLLECTION SERVICE, INC. AND
ATTORNEY T. DALE BEAVERS

v.                                      NO. 2002-IA-00597-SCT

ANNIE P. TATE

                       CONSOLIDATED WITH

FRANKLIN COLLECTION SERVICE, INC. AND
ATTORNEY T. DALE BEAVERS

v.                                      NO. 2002-IA-00598-SCT

LEE V. WILKERSON

                       CONSOLIDATED WITH

FRANKLIN COLLECTION SERVICE, INC. AND
ATTORNEY MARY E. MASON



                                2
v.                                                                  NO. 2002-IA-00599-SCT

BESSIE M. NEAL



DATE OF JUDGMENT:                                 4/4/2002
TRIAL JUDGE:                                      HON. LEE J. HOWARD
COURT FROM WHICH APPEALED:                        NOXUBEE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                         WILLIAM V. WESTBROOK, III
                                                  JOHN PAUL BARBER
                                                  CHARLES G. PERKINS
ATTORNEYS FOR APPELLEES:                          ARMSTRONG WALTERS
                                                  THOMAS L. KESLER
                                                  BENNIE L. TURNER
NATURE OF THE CASE:                               CIVIL - OTHER
DISPOSITION:                                      REVERSED AND RENDERED - 12/31/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


        EN BANC.

        COBB, JUSTICE, FOR THE COURT:


¶1.     Franklin Collection Service, Inc. (Franklin) filed nine separate actions in the Noxubee County

Justice Court over a period of four and a half years between June 1996 and December 2000. All sought

to obtain judgments for unpaid medical bills owed to various medical service providers plus attorney’s fees

and court costs. It is undisputed that each of the justice court defendants was a Noxubee County resident

and was properly served with process. Each of the standard “form” complaints stated the amount owed

to the service provider plus a specific amount for the attorney’s fee and for court costs. Further, the

complaints stated that the debts were incurred upon open account, that the indebtedness had been assigned

fully to Franklin, that a written demand for payment had been made more than 30 days before the suit was

filed, and that the debtors had failed or refused to pay. In addition, the complaint stated that Franklin had

                                                     3
hired counsel to prosecute the collection suit. None of the justice court defendants answered the complaint

filed against them, and default judgments were entered against each one. Details of each of the nine

complaints, including the following itemization of the judgments, are as follows:

      Date of    Name of
                      Name of Service Provider Debt                 Atty    Court   Total       % Atty
      Judgment   Debtor                          Owed               Fee     Costs   Judgment    Fee
1.    05-16-96   Stewart
                      Clay Co. Med. Center       $644               $50     $52     $745        08%
2.    06-16-98   Cockrell
                      Columbus Foot Clinic       $403               $100    $79     $582        25%
3.    11-10-98   Binion
                      Gold’s Gym                 $163               $50     $54     $267        31%
4.    04-27-99   Neal Columbus Orthopaedic       $130               $50     $54     $234        38%
5.    04-11-00   JonesRobert Trotter, M.D. Family$57
                      Health Clinic              $179
                      Jeffrey Chain, M.D.        $204
                      Columbus Orthopaedic       $190               $150 $54        $834        24%
6. 04-11-00 Malone    Clay Co. Med. Center       $295               $75 $54         $424        25%
7. 08-08-00 Tate      Lance Busch, M.D.          $102
                      Columbus Orthopaedic       $163               $75 $54         $394        28%
8. 10-10-00 Wilkerson Cardiology Assoc. N.M. $878                   $175 $54        $1,107      20%
9. No date Woods      Family Health Clinic       $479
                      Kemper Comm. Hosp.         $173               $150 $54        $856        23%


With the exception of Mrs. Neal, whose $50 attorney fee was $7 more than one-third of her indebtedness,

the percentage of the debt owed which was allocated for attorney’s fees was well within the presumptively

reasonable one-third of the indebtedness which this Court has traditionally approved as reasonable awards

of attorneys’ fees in collection matters.1

¶2.      On December 18, 2000, each of the debtors filed separate civil actions against Franklin in the

Noxubee County Circuit Court, alleging that the debts sued upon were not open accounts and that Franklin




         1
          See Dynasteel Corp. v. Aztec Indus., Inc. 611 So. 2d 977, 987 (Miss. 1992). See also
Estate of Baxter v. Shaw Assocs., Inc., 797 So.2d 396 (Miss. Ct. App. 2001) (There is a presumption
in a collection suit in favor of awarding fees in the amount of one third of the indebtedness).

                                                    4
and its attorneys perpetrated a fraud on the court2 and abuse of process on the debtors. In January 2001,

the case was removed to federal court. In June of 2001 it was remanded to the Noxubee County Circuit

Court, after the federal court held that the debtor’s action was not completely preempted by the Fair Debt

Collections Practices Act.

¶3.     On April 4, 2002, the Noxubee County Circuit Court entered an order denying the motion to

dismiss or for summary judgment filed by Franklin, and certified four issues for interlocutory appeal to this

Court, which are consolidated into the three issues discussed below. We granted Franklin’s petitions to

bring these consolidated interlocutory appeals. See M.R.A.P. 5.

                                                   FACTS

¶4.     For the purposes of this opinion the facts are limited to those which led to this appeal, not the

underlying facts which led to the original complaints in justice court against the circuit court plaintiffs.

¶5.     These actions involve eleven plaintiffs, all Noxubee County residents against whom Franklin,

through attorneys T. Dale Beavers (Beavers), Mary E. Mason (Mason), Jeffrey Waldo (Waldo), and

Unknown Attorney A (Attorney A), instituted collection proceedings in the Justice Court of Noxubee

County, concerning unpaid medical bills for various medical services. It is undisputed that service of

process was properly obtained on all, that the amount billed by the medical providers was owed, and that

none of the justice court defendants appeared in the justice court or contested the allegations in the

complaint in any way. In due time, default judgments were entered. In all cases, the judgment sought by



        2
         The fraud allegation was that Franklin and its attorneys “knew, or should have known, the debt
owed by the Plaintiffs was not a debt for which attorney’s fees are authorized under § 11-53-81” (the open
account statute) and that the attorneys did not “advise the Justice Court Judge the debt was not an open
account.” The abuse of process allegation was that Franklin and its attorneys, in seeking collection of
attorneys’ fees in this manner, made “[a]llegations attorney fees were owed pursuant to § 11-53-81 [which]
were false.”

                                                       5
Franklin included the debt amount, plus a specific attorney’s fee, plus court costs. No appeals were

perfected by any of the justice court defendants.

¶6.     On December 18, 2000, the justice court defendants filed their circuit court complaints, in separate

actions, against Franklin and Beavers, Mason, Waldo and Attorney A, seeking, as damages, recovery of

the attorney’s fees awarded by the justice court judgments and also seeking punitive damages and court

costs, based upon a putative claim for “misrepresentation and abuse of process” and “perpetrat[ion of] a

fraud on the Justice Court of Noxubee County.” Franklin responded by filing a motion to dismiss or for

summary judgment, arguing that because none of the justice court judgments had been appealed, any

challenge in the circuit court concerning the propriety of the “open account” attorney’s fee remedy, as well

as the fee amount awarded, was barred.

¶7.     The circuit court denied Franklin’s motion to dismiss or for summary judgment; however, leave was

given for Franklin to seek an interlocutory appeal. Four issues were certified for these consolidated

interlocutory appeals. After careful consideration, this Court finds that the challenge to the application of

the open account collection law and procedure raised by the plaintiffs is barred by the doctrine of res

judicata and that the assertions made regarding misrepresentation, fraud and abuse of process are without

merit. Accordingly, this Court reverses and renders the judgment of the Noxubee County Circuit Court.

For the sake of clarity, the issues have been combined and reworded.

                                             DISCUSSION

        I.      WHETHER THE JUSTICE COURT JUDGMENT BARS ANY
                LITIGATION CONCERNING THE AWARD OF ATTORNEY’S
                FEES WHEN NO DIRECT APPEAL WAS TAKEN FROM THE
                JUSTICE COURT RULING.




                                                     6
¶8.     The plaintiffs argue that the res judicata argument is inapplicable because their failure to appear and

to perfect an appeal does not bar this subsequent litigation which is based on a scheme to cheat and

defraud. They further argue that Franklin used tactics that constituted a fraud upon the court and

constituted ethical violations which led to an abuse of process. We hold that res judicata is applicable with

regard to the questions regarding the open account procedure, award of attorney’s fees and failure to

appeal, but that it does not foreclose, under the facts and circumstances of this case, our review of the

allegations of misrepresentation, fraud and abuse of process.

¶9.     The doctrine of res judicata reflects the refusal of the law to tolerate a multiplicity of litigation.

Little v. V&G Welding Supply, Inc., 704 So.2d 1336, 1337 (Miss. 1997). Res judicata bars all

issues that might have been (or could have been) raised and decided in the initial suit, in addition to all issues

that were actually decided in the first action. It is a doctrine of public policy “designed to avoid the

‘expense and vexation attending multiple lawsuits, conserve judicial resources, and foster reliance on

judicial action by minimizing the possibilities of inconsistent decisions.’ ” Id.

¶10.    A judgment for default may be entered if the defendant fails to appear and the plaintiff appears.

Uniform Rules of Procedure For Justice Court 2.06. In order for a court to enter a default judgment, the

court must have had jurisdiction and proper service of process. McCain v. Dauzat, 791 So.2d 839, 842

(Miss. 2001). A judgment by default is given the same effect as if a verdict was entered for the plaintiff and

accordingly can have preclusive effect on other litigation. Strain v. Gayden, 197 Miss. 353, 20 So.2d

697, 700 (1945). See also In re Evans, 252 B.R. 366, 371 (Bankr. N.D. Miss. 2000). The proper

procedure for an appeal from a justice court judgment is found in Miss. Code Ann. § 11-51-91 (Rev.

2002), which allows for a de novo trial by the circuit court.



                                                        7
¶11.    None of the circuit court plaintiffs allege they were improperly served nor do any allege jurisdiction

was improper in the justice court. Further, they do not dispute that the debt was actually owed. They did

not avail themselves of presenting a defense in the justice court to the underlying collection action, and then

they neglected to appeal from the default judgment rendered by the justice court.

¶12.    The plaintiffs are basing their complaints upon the alleged improper collection of attorneys’ fees in

the underlying collection actions instituted by Franklin but argue that they do not dispute the original debt.

The amount of the debt for which Franklin sued included attorney’s fees and court costs, and this is the

same amount awarded by the justice court in the default judgments.

¶13.    The plaintiffs cannot simply fail to defend a suit to collect a debt and also fail to appeal the default

judgment entered against them and then file suit and argue that the judgment, though not in dispute, was the

result of fraud or abuse of process. If they do so, they do so at their own peril, especially in circumstances

such as those before this Court, where their allegations of fraud and abuse of process are without merit.

The proper avenue available to attack the judgment, the attorney’s fees awarded and the alleged fraud was

to defend the action in justice court or to make a timely appeal of the judgment to the circuit court. The

plaintiffs are procedurally barred by the doctrine of res judicata from bringing any action concerning the

default judgments of the justice court.

        II.      WHETHER THE JUSTICE COURT MAY ENTER A DEFAULT
                 JUDGMENT AND AWARD ATTORNEY’S FEES ON “OPEN
                 ACCOUNTS.”

¶14.    Franklin argues that the unpaid debts were “open accounts” and therefore subject to Miss. Code

Ann. § 11-53-81 (Rev. 2002) which provides for recovery of the attorneys’ fees along with the debts. The

plaintiffs argue that the debts are not open accounts within the meaning of § 11-53-81. This Court has

defined an “open account” as an account based on continuing transactions between the parties which have


                                                      8
not closed or been settled. Westinghouse Credit Corp. v. Moore & McCalib, Inc., 361 So.2d 990,

992 (Miss. 1978). We have also recognized that a collection for recovery, on an open account, amounts

to a collection action where the debt is based on a series of credit transactions. Allen v. Mac Tools, Inc.

671 So.2d 636, 644 (Miss. 1996).

¶15.    It has long been held that § 11-53-81 is applicable in the collection of medical bills, either in a direct

action by the unpaid medical provider or by a collection agent or agency acting on behalf of the medical

provider. The availability of this remedy is generally well settled, and we find nothing in the cases before

us to warrant a departure from the rule that accounts established by medical providers for services provided

to their patients are open accounts within the purview of § 11-53-81, and the statutory provision that “the

person who fails to pay the open account shall be liable for reasonable attorney’s fees to be set by the

judge for the prosecution and collection of such claim when judgment on the claim is rendered in favor of

the plaintiff” is applicable. In Anderson v. Lancaster, 215 Miss. 179, 60 So.2d 595 (1952) this Court

acknowledged that medical accounts are considered “open accounts.” In Anderson, the doctor and

patient had a verbal agreement concerning the date on which payment of the open account would be made,

and this Court found for the doctor on a statute of limitations claim. Id. at 596-97. In Wise v. Gulf

States Collection Services, 633 So.2d 1025, 1027 (Miss. 1994), an attorney for the collection agency

sent a collection letter regarding an unpaid bill due to Forrest General Hospital for an unpaid bill for an

adopted baby’s seven-week stay in the hospital. The bill was disputed by the adopting parents who had

not been involved with the hospital arrangements. This Court acknowledged that the case brought by the

collection agency was “an ordinary contract case involving a suit on an open account” and because the

adopting parents, who had not sought the services nor entered into any agreement to be responsible for

the hospital bills, could not be found liable.

                                                       9
¶16.    Miss. Code Ann. § 11-9-127 (Supp. 2003) provides that a justice court judge can enter a default

judgment against one or more parties that fail to appear before the court on the specified trial date. The

plaintiffs do not deny that they were all properly served with process and all failed to appear and defend

the collection action. Pursuant to statutory law, the justice court was not in error by entering a default

judgment, which included reasonable attorney’s fees, on Franklin’s collection actions against the plaintiffs.

        III.     WHETHER A DEBTOR MAY PROCEED IN AN INDEPENDENT
                 ACTION AGAINST THE CREDITOR COLLECTION AGENCY
                 WHEN THE DEBTOR FAILED TO DEFEND OR APPEAL THE
                 ORIGINAL JUDGMENT.

¶17.    The plaintiffs allege that Franklin and its attorneys are liable for an abuse of process in the collection

of attorney’s fees and that they violated certain ethical rules regarding fee sharing with non-lawyers.

¶18.    “The elements of abuse of process are: (1) the party made an illegal use of the process, a use

neither warranted nor authorized by the process, (2) the party had an ulterior motive, and (3) damage

resulted from the perverted use of process.” McLain v. West Side Bone & Joint Ctr., 656 So.2d

119, 123 (Miss. 1995). The record is devoid of any evidence to support the plaintiffs’ claims of abuse of

process. The allegations of the plaintiffs that the debts owed were not debts for which attorney’s fees are

authorized by the open account provisions of § 11-53-81, and that Franklin and its attorneys knew that,

are simply unfounded. Franklin had ample cause to file the collection actions against the plaintiffs, and even

if it were assumed, for argument sake, that Franklin violated any ethical rules regarding their attorneys, that

alone would not be enough support this claim as an independent civil action.

                                              CONCLUSION

¶19.    We hold that the circuit court erred by denying Franklin’s motion to dismiss or for summary

judgment. The plaintiffs’ actions are procedurally barred with regard to their claims on the merits regarding



                                                      10
attorneys’ fees, by the doctrine of res judicata. Because we hold that collection of debts incurred for

services performed by medical providers are properly pursued as open accounts under § 11-53-81, there

is no merit to the claims of abuse of process. Therefore, we reverse the circuit court’s orders denying

Franklin’s motions to dismiss or for summary judgment, and we render summary judgment finally dismissing

the plaintiffs’ complaints and actions with prejudice.

¶20.    REVERSED AND RENDERED.

     SMITH, P.J., WALLER AND CARLSON, JJ., CONCUR. GRAVES, J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., DISSENTS WITH
SEPARATE WRITTEN OPINION. PITTMAN, C.J., DIAZ AND EASLEY, JJ., NOT
PARTICIPATING.

        McRAE, PRESIDING JUSTICE, DISSENTING:

¶21.    The trial court's denial of summary judgment should be affirmed as there are disputed issues of

material fact. Such disputed issues of material fact are critical in determining: (1) Whether the collection

proceedings in question were in fact open accounts within the meaning of Miss. Code Ann. § 11-53-81

(Rev. 2002); and (2) Whether Franklin Collection was entitled to attorney's fees during the collection

proceeding. Also presented on appeal are two issues of law, those being: (3) Whether the plaintiffs are

procedurally barred from pursuing a claim for abuse of process; and (4) Whether a private right of action

exists for the plaintiffs against Franklin Collection for its alleged ethical and discipline violations. The

plaintiffs are not procedurally barred from pursuing a claim for abuse of process and although the alleged

ethical and discipline violations by Franklin Collection do not create a private right of action, they do

provide evidence of the underlying claim of abuse of process. For these reasons, I dissent.

¶22.    One of the critical areas of inquiry is whether the collection proceedings in question were in fact

"open accounts" within the meaning of Miss. Code Ann. § 11-53-81 (Rev. 2002). Section 11-53-81



                                                    11
provides for the recovery of "reasonable attorney’s fees" for the prosecution and collection of an "open

account." Miss. Code Ann. § 11-53-81. The critical factual issue which determines whether "reasonable

attorney’s fees" are appropriate is the determination of whether the collection proceeding in question was

in fact on an "open account."

¶23.    "Open account" has been defined several times by this Court. "[I]t is generally held to mean an

account based on continuing transactions between the parties which has not been closed or settled but is

kept open in anticipation of further transactions." Westinghouse Credit Corp. v. Moore & McCalib,

Inc., 361 So.2d 990, 992 (Miss. 1978).3 It is a "[t]ype of credit extended through an advance agreement

by a seller to a buyer which permits the buyer to make purchases without a note of security and is based

on an evaluation of the buyer's credit." Allen v. Mac Tools, Inc., 671 So.2d 636, 644 (Miss. 1996)

(quoting Black's Law Dictionary 1090 (6th ed. 1990)). Essentially, an action on an open account is "an

action to collect on a debt created by a series of credit transactions." Allen, 671 So.2d at 644.4

¶24.    In our analysis we have found many transactions and debts to indeed be "open accounts" under the

statute. Such transactions which have been found to be "open accounts" include a collection proceeding

by a gasoline distributor against a debtor purchaser; a creditor suit initiated by a steel galvanizer against a

steel fabricator for unpaid services; a creditor suit initiated by a box company against a toy manufacturer

for unpaid services; and a collection proceeding initiated by a doctor or hospital to collect for unpaid

medical bills. Par Indus., Inc. v. Target Container Co., 708 So.2d 44, 53-54 (Miss. 1998);


        3
       See also Allen v. Mac Tools, Inc., 671 So.2d 636, 644 (Miss. 1996); Cox v. Howard, Weil,
Labouisse, Friedrichs, Inc., 619 So.2d 908, 915 (Miss. 1993).
        4
         See also H & H Design Builders, Inc. v. Travelers' Indem. Co., 639 So.2d 697 (Fla. Dist.
Ct. App. 1994); Central Ins. Underwriters, Inc. v. National Ins. Co., 599 So.2d 1371 (Fla. Dist.
Ct. App. 1992); Robert W. Gottfried, Inc. v. Cole, 454 So.2d 695 (Fla. Dist. Ct. App. 1984).

                                                     12
McLain v. West Side Bone & Joint Ctr., 656 So.2d 119, 121 (Miss. 1995); Wise v. Gulf States

Collection Servs., 633 So.2d 1025, 1027 (Miss. 1994); Dynasteel Corp. v. Aztec Indus., Inc.,

611 So.2d 977, 979-80 (Miss. 1992); Bryant, Inc. v. Walters, 493 So.2d 933, 938 (Miss. 1986);

Anderson v. Lancaster, 215 Miss. 179, 60 So.2d 595, 596 (1952). Of course, assignees of those

entitled to collect under an "open account" may also proceed under the statute and collect attorneys' fees.

Ashby v. Carr, 40 Miss. 64, 1-2 (1866). However, this Court has never addressed whether an account

receivable, an unpaid medical bill in this case, can be sold to a collection agency and still keep its "open

account" status. Looking to the definitions given above, it is apparent that an account receivable sold does

in fact lose its "open account" status, as no other transactions are anticipated between the parties and the

creditor. Here the hospital has essentially closed the account by selling it to the collection agency.

¶25.    The record presented on appeal is incomplete, and a determination of whether the medical bills in

question qualify for "open account" status are still up in the air. There is no evidence either way which

indicates whether the medical accounts receivables were "sold" or "assigned" to Franklin Collection.

Without this information, a determination cannot be made as to whether the collection proceedings were

in fact on an "open account," therefore invoking the "reasonable attorney's fees" provision of §11-53-81.

More discovery and fact finding is needed on this issue making summary judgment at this point

inappropriate.

¶26.    Another critical issue in dispute is whether Franklin Collection was entitled to attorney's fees in the

collection proceedings. This issue in many respects hinges on whether the debt as held by Franklin

Collection was an "open account," which as stated earlier, fact finding is needed for such a determination.

This inquiry also turns on information which emerged regarding the practices of Franklin Collection, lay



                                                     13
persons drafting and signing complaints and the sending of lay persons to court to collect upon the debt.



¶27.    Even if the collection proceeding is found to indeed be upon an "open account," issues still exist with

regard to the practices of Franklin Collection and the reasonableness of the fees assessed. Deposition

testimony indicates that Franklin Collection not only had unlicensed individuals draft the collection

complaints but also sent them to court to collect upon the debt. Honestly, how can Franklin Collection be

entitled to attorney's fees if no attorneys did any work? Also at issue is whether the attorney's fees

rendered and collected by Franklin Collection are in fact "reasonable." If no attorney worked on the

collection proceeding, then it is evident that any award of attorney's fees is not reasonable. Further, if all

that is required for collection is a fill-in-the-blank form and a five-minute wait in justice court, then the

attorney's fees awarded may indeed be unreasonable. For example, William Binion owed Clay County

Hospital $163.00 in unpaid medical bills, but in the end Franklin Collection sought a judgment for $267.00

which not only included the debt but $50.00 in attorney's fees and $54.00 in court costs.

¶28.    Also at issue is whether the plaintiffs can procedurally maintain an action for abuse of process.

Franklin Collection argues that the plaintiffs are precluded from asserting this claim since they did not raise

it as a counterclaim during the justice court collection proceeding. This is not so. Malicious prosecution

and abuse of process claims are not mandatory counterclaims. Moon v. Condere Corp., 690 So.2d

1191, 1198-1200 (Miss. 1997). Further, counterclaims in justice court are permissible, not compulsory.

URPJC 2.07.

¶29.    Lastly, as a question of law, we are called upon to determine whether a private right of action exists

for the plaintiffs against Franklin Collection for its ethical and discipline violations. The straight answer is

that no private right of action exists for violations of ethical and/or discipline rules. See Miss. R. Prof'l

                                                      14
Conduct Scope. However, that does not mean that violations may not be used in support of a separate

independent cause of action. Under the present circumstances, the plaintiffs have asserted a claim of abuse

of process. In making their case, they should be able to use violations of the ethical and discipline rules to

prove the elements of their claim. 5 Other jurisdictions have held that ethical and discipline violations can

be used as evidence to support a separate independent civil action. Allen v. Lefkoff, Duncan,

Grimes, & Dermer, P.C., 265 Ga. 374, 374-77, 453 S.E.2d 719, 720-22 (1995); Mayol v.

Summers, Watson, & Kimpel, 223 Ill. App.3d 794, 810, 585 N.E.2d 1176, 1186 (1992).

¶30.    For the above reasons, I would affirm the learned trial judge and remand these cases for further

proceedings.




        5
          The elements for abuse of process include: "(1) the party made an illegal use of the process, a
use neither warranted nor authorized by the process; (2) the party had an ulterior motive; and (3)
damage resulted from the perverted use of process." McLain v. West Side Bone & Joint Ctr., 656
So.2d at 123 (citing State ex rel. Foster v. Turner, 319 So.2d 236, 236 (Miss. 1975). "[A]n action
for abuse of process may arise where there is a 'malicious perversion of a regularly issued civil or
criminal process, for a purpose and to obtain a result not lawfully warranted or properly attainable
thereby, and for which perversion an action will lie to recover the pecuniary loss sustained.' " Moon v.
Condere Corp., 690 So.2d at 1197 (quoting State ex rel. Foster, 319 So.2d at 236).

                                                     15
