Spann v. Diaz
| Docket Number: | 2007-CA-00232-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 07-31-2008 Opinion Author: CARLSON, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Legal malpractice - Statute of limitations - Section 15-1-49 - Waiver - Fraudulent concealment Judge(s) Concurring: SMITH, C.J., WALLER, P.J., EASLEY, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ. Non Participating Judge(s): DIAZ, P.J. Procedural History: Summary Judgment Nature of the Case: CIVIL - LEGAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 11-15-2006 Appealed from: Hinds County Circuit Court Judge: Bobby DeLaughter Disposition: Patricia Jones Spann filed this legal malpractice action against Gerald J. Diaz, Jr., P.A., formerly d/b/a/ Cherry, Givens, Peters, Lockett & Diaz and/or Diaz, Lewis & Giddens, PLLC (Diaz) in the Circuit Court for the First Judicial District of Hinds County. Diaz filed a motion for summary judgment which was granted by the trial court. Case Number: 251-05-475-CIV |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | PATRICIA JONES SPANN, INDIVIDUALLY AND
ON BEHALF OF ALL WRONGFUL DEATH
BENEFICIARIES OF TIMOTHY SPANN,
DECEASED |
PHILIP W. THOMAS |
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| Appellee: | GERALD J. DIAZ, JR., P.A., FORMERLY d/b/a CHERRY, GIVENS, PETERS, LOCKETT & DIAZ AND/OR DIAZ, LEWIS & GIDDENS, PLLC | J. ROBERT RAMSAY | ||
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| Topic: | Legal malpractice - Statute of limitations - Section 15-1-49 - Waiver - Fraudulent concealment |
| Summary of the Facts: | Patricia Spann filed a legal malpractice action against Gerald J. Diaz, Jr., P.A., formerly d/b/a/ Cherry, Givens, Peters, Lockett & Diaz and/or Diaz, Lewis & Giddens. Diaz filed a motion for summary judgment which the court granted. Spann appeals. |
| Summary of Opinion Analysis: | The trial court dismissed the legal malpractice action against Diaz as being time-barred pursuant to section 15-1-49. Pursuant to that statute, in order for Spann to pursue her legal malpractice claim against Diaz, Spann must show that she filed her claim within the applicable three-year statute of limitations, or that Diaz waived his statute-of-limitations defense. Spann argues that because Diaz did not raise his statute-of-limitations defense in a motion for summary judgment until more than a year after Spann commenced this action and that because Diaz actively participated in litigation by deposing Spann, Diaz waived his affirmative defense. Diaz initially raised the statute-of-limitations affirmative defense in his answer to Spann’s original complaint. When Spann filed an amended complaint, Diaz answered Spann’s amended complaint again asserting the statute of limitations as an affirmative defense. Seventy-one days later, Diaz filed his motion for summary judgment with the trial court. While substantial and unreasonable delay in pursuing a particular right, coupled with active participation in the litigation process, could constitute a waiver, a delay of seventy-one days in this case did not constitute a substantial and unreasonable delay. Spann’s lawsuit was originally filed on May 26, 2005. Therefore, if Spann learned or by reasonable diligence should have learned of her cause of action before May 26, 2002, her claim is barred by the statute of limitations. Spann argues that the statute of limitations did not begin to run until May 25, 2005, the date that Diaz’s former law partner told Spann that Diaz had been negligent. She claims that Diaz fraudulently concealed material facts from her which prevented her from discovering the negligent acts of Diaz. A party who asserts a claim of fraudulent concealment must prove that some affirmative act or conduct was done and prevented discovery of a claim, and due diligence was performed on the party’s part to discover it. Spann had a known injury as of May 23, 2002, when the motion for rehearing in her case was denied. While another lawyer had not specifically told Spann that Diaz was negligent, such was not required, based on the facts Spann knew or reasonably shown have known. |
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