Keszenheimer v. Boyd
| Docket Number: | 2002-CA-01680-COA Linked Case(s): 2002-CT-01680-SCT ; 2002-CA-01680-COA |
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| Court of Appeals: |
Opinion Date: 08-31-2004 Opinion Author: Chandler, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Legal malpractice - Section 79-29-920 (1) - Negligent or wrongful act - Breach of fiduciary duty - Expert testimony Judge(s) Concurring: King, C.J., Bridges, P.J., Lee, Irving and Myers, JJ. Non Participating Judge(s): Griffis and Barnes, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - LEGAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 07-22-2002 Appealed from: Hinds County Circuit Court Judge: W. Swan Yerger Disposition: DEFENDANT SMALLWOOD'S MOTION TO DISMISS GRANTED. MOTION FOR SUMMARY JUDGMENT GRANTED IN FAVOR OF OTHER DEFENDANTS. |
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| Party Name: | Attorney Name: | |||
| Appellant: | EDWARD P. KESZENHEIMER, JR. |
PRO SE |
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| Appellee: | ROBERT CLINTON BOYD, GAIL SWAN AKIN, EDWIN Y. HANNAN, WILLIAM CARTER SMALLWOOD, III, JAMES RANDALL WALLACE, JR., BOYD & AKIN PLLC AND BOYD, AKIN, HANNAN & SMALLWOOD PLLC | STEVEN TODD JEFFREYS SIMINE BAZYARI REED R. MARK HODGES JOHN BENTON CLARK SHANDA L. LEWIS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Legal malpractice - Section 79-29-920 (1) - Negligent or wrongful act - Breach of fiduciary duty - Expert testimony |
| Summary of the Facts: | Edward Keszenheimer, Jr. filed suit against Robert Boyd, Gail Akin, Edwin Hannan, William Smallwood, III, James Wallace, Jr., Boyd & Akin PLLC and Boyd, Akin, Hannan & Smallwood PLLC alleging legal malpractice. The court dismissed the case as to defendant Smallwood and entered a summary judgment in favor of the remainder of the defendants. Keszenheimer appeals. |
| Summary of Opinion Analysis: | Issue 1: Motion to dismiss Keszenheimer argues that the court erred in dismissing his claim against Smallwood, because Smallwood was a member and partner of Boyd, Akin, Hannan & Smallwood PLLC during the time of his representation. Under section 79-29-920 (1), Smallwood cannot be held liable unless he either personally participated in a negligent or wrongful act or directly supervised someone who committed wrongful conduct. Keszenheimer's assertions that Smallwood was a member of the firm and that the firm used the terms "we," "us," and "the firm" in correspondence, even if accepted as true, do not meet either of these two requirements. Issue 2: Summary judgment Keszenheimer argues that the court erred in granting summary judgment in favor of Hannan. In order to avoid summary judgment, the plaintiff must make a prima facie showing, at least creating a material fact issue, that the defendant was negligent or directly supervised someone who was negligent or wrongful. Keszenheimer simply offered that Hannan was a member of the law firm of Boyd, Akin, Hannan & Smallwood PLLC. He does not allege with specificity any actions or inactions on Hannan's part that were negligent. Although Keszenheimer also argues that Hannan breached his fiduciary duty, he merely makes the conclusory statement that a fiduciary duty was violated. This is insufficient to avoid summary judgment. With regard to the remaining defendants, Keszenheimer failed to establish negligence or a violation of fiduciary duty on the part of the defendants. Boyd, Akin, and Wallace established by affidavits that they breached no duty to Keszenheimer in the underlying case. They affirmatively showed that they exercised the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession. Keszenheimer failed to rebut this testimony. In addition, Keszenheimer has offered no expert testimony to establish his claim. |
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