BENNETT v. HILL-BOREN P.C.


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Docket Number: 2009-IA-01418-SCT

Supreme Court: Opinion Link
Opinion Date: 01-27-2011
Opinion Author: Justice Chandler
Holding: Reversed and remanded.

Additional Case Information: Topic: Legal malpractice - Statute of limitations - Section 15-1-49 - Continuous representation rule - Discovery rule - Fraudulent concealment


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Topic: Legal malpractice - Statute of limitations - Section 15-1-49 - Continuous representation rule - Discovery rule - Fraudulent concealment

Summary of the Facts: Mattie Bennett filed a legal-malpractice action against Hill-Boren, P.C., T. Robert Hill, Melvin & Melvin, Leonard B. Melvin, Jr., and John Does 1-10. Bennett alleged that Hill and Melvin had represented her and her sister, Dorothy Washington, in a wrongful-death case filed on August 23, 2000, and that Hill and Melvin had failed to serve process on a defendant, which had resulted in the dismissal of the case. Melvin moved for summary judgment based on the expiration of the three-year statute of limitations. Bennett asserted that, under the discovery rule, the earliest time that she knew or reasonably should have known of the alleged malpractice was when her new counsel had obtained the case file in 2005. The trial court rejected Bennett’s discovery-rule argument, and held that the statute of limitations had begun to run, at the earliest, upon Bennett’s termination of Melvin’s representation in 2001 or, at the latest, when Melvin last had represented Washington and Bennett, in unsuccessful settlement negotiations in 2002. The trial court granted summary judgment to Melvin. Bennett appeals.

Summary of Opinion Analysis: The three-year statute of limitations found in section 15-1-49 applies to actions for legal malpractice. The trial court found there was no genuine issue of material fact because more than three years had passed since either of two possible dates when Melvin was terminated, either in 2001 or 2002. Melvin argues that the trial court’s decision was correct because the statute of limitations in a legal malpractice action begins to run on the date that the attorney’s representation of the specific matter or transaction ended. This rule for determining the beginning of the limitations period is known as “the continuous representation rule.” However, Mississippi does not follow the ‘continuous representation rule.’ Under the discovery rule, as applied in a legal-malpractice action, the statute of limitations begins to run on the date that the plaintiff learns, or through reasonable diligence, should have learned, of the negligence of the lawyer. The discovery rule is applied when the facts indicate that it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act. The evidence submitted on summary judgment created a genuine issue of material fact as to whether the first time that Bennett and Washington knew or with reasonable diligence should have known of the alleged malpractice was when their new attorney received the case file in 2005. In the January 2002 letter to Melvin, Hill stated that he had informed Washington that the time had expired to serve NMRMC. However, Bennett claimed that neither she nor Washington had known of the fatal error until they had obtained the case file from Hill and had it reviewed by new counsel. In fact, both Hill and Melvin admitted in their interrogatory responses that they never had informed Bennett or Washington of the failure to serve NMRMC. Melvin argues that, when Bennett and Washington were told that their attorneys were having trouble with service on NMRMC, a duty to investigate arose, and their failure to investigate was a lack of reasonable diligence. To claim benefit of the discovery rule, a plaintiff must be reasonably diligent in investigating the circumstances surrounding the injury. Although Washington and Bennett could have checked the court records to determine whether NMRMC had ever been served, they had received no information that should have alerted a layperson to possible negligence. The news that their attorneys were having trouble or difficulty with serving NMRMC was not the type of information reasonably guaranteed to communicate to a layperson that the reason for the difficulty was that their attorneys may have been guilty of negligence. In fact, Bennett and Washington submitted evidence showing that they had exercised reasonable diligence by continually inquiring into how the case was progressing through their telephone calls and written correspondence to Hill. Mississippi attorneys cannot rely on their failure to fully inform their clients to assert the statute of limitations in a legal malpractice action. Bennett alternatively argues that the statute of limitations was tolled because the evidence tended to show that Melvin fraudulently had concealed both the failed service and the fact that it was fatal to the wrongful-death case. Because Melvin had a fiduciary relationship with the sisters, he had a duty to communicate facts material to the litigation for the duration of the representation. Hill’s January 2, 2002, letter to Melvin communicated that Hill had explained the failure of service to Washington. It is reasonable to infer that Melvin reasonably relied on this representation from cocounsel and believed the situation had been “explained to Washington.” However, there is no evidence that, at any time between August 30, 2000, when Melvin received notice of the failed service, and January 2, 2002, Melvin took any measures to inform his clients of the failure. Thus, there is a genuine issue of material fact as to whether fraudulent concealment by Melvin tolled the statute of limitations.


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