James Luvene v. Dorothy Waldrup
| Docket Number: | 2002-CA-01313-COA Linked Case(s): 2002-CT-01313-SCT2002-CT-01313-SCT2002-CA-01313-COA |
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| Oral Argument: | 03-24-2004 | |
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| Court of Appeals: |
Opinion Date: 07-27-2004 Opinion Author: BRIDGES, P.J. Holding: Affirmed; Reversed and Remanded |
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| Additional Case Information: |
Topic: Legal malpractice - Expert affidavit Judge(s) Concurring: KING, C.J., LEE, MYERS, JJ. Dissenting Author : CHANDLER, J., GRIFFIS. J. Dissent Joined By : SOUTHWICK, P.J. Concurs in Result Only: IRVING, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - LEGAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 07-12-2002 Appealed from: MARSHALL COUNTY CIRCUIT COURT Judge: Henry L. Lackey Disposition: DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT GRANTED. |
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| Party Name: | Attorney Name: | |||
| Appellant: | JAMES LUVENE |
PEARSON LIDDELL
GREGORY C. WEISS
MICHAEL J. HALL |
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| Appellee: | DOROTHY WALDRUP AND MICHAEL COOKE | BEVERLY DAVIS BUSKIRK DONNA M. BARNES GRADY F. TOLLISON JOHN G. WHEELER |
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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 - Expert affidavit |
| Summary of the Facts: | James Luvene filed a pro se complaint with the U.S. Equal Employment Opportunity Commission against his former employer, Metropolitan Life Insurance Company, and his former supervisor, Shelby Ware. After notification of the EEOC's findings, Luvene filed a lawsuit in the United States District Court for the Northern District of Mississippi alleging Title VII race discrimination and retaliation against MetLife and Ware. Because process was not issued for more than 120 days, MetLife and Ware filed a motion to dismiss for insufficiency of service of process which the court granted. As a result of the dismissal, Luvene brought suit against attorneys Michael Cooke and Dorothy Waldrup in the Marshall County Circuit Court. The court granted both Waldrup's and Cooke's motions for summary judgment. Luvene appeals. |
| Summary of Opinion Analysis: | Luvene argues that the court erred in finding that Luvene presented no evidence or testimony from an expert, either in person, by affidavit, or otherwise in a timely fashion. In order for a plaintiff to recover in a claim of negligence in a legal malpractice action, he must prove by a preponderance of the evidence the existence of a lawyer-client relationship; negligence on the part of the lawyer in handling his client's affairs entrusted to him; and proximate cause of the injury. The generally accepted rule is that expert testimony is ordinarily necessary to support an action for malpractice of a professional man in those situations where a special skill, knowledge, experience, learning or the like are required. Expert evidence as to standards of practice and negligence is generally admissible in malpractice actions against attorneys. While Luvene did file an affidavit executed by a practicing attorney, Luvene filed the affidavit at least eight-seven days after the date it was due. Luvene failed to request additional time in which to present the affidavit of his expert. Therefore, the judge correctly ruled that the affidavit would be stricken and would not be considered part of the record with regard to Waldrup. A plaintiff is required to offer an expert opinion in order to sustain his burden of proof for legal malpractice. With regard to Cooke, the affidavit was timely filed. The affidavit does broadly cover the three requirements for proving legal malpractice and therefore does create a question of fact to be determined by a trier of fact. |
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