Aaron L. Thomas v. David M. Cook
170 So. 3d 1254
| Miss. Ct. App. | 2015Background
- In 2006 Thomas retained attorney David Cook to represent him before the Tennessee Board of Law Examiners; Cook obtained affidavits from two doctors supporting Thomas.
- In 2007 Thomas sued Dr. DiGaetano for medical malpractice; in March–April 2008 Cook sought and obtained admission pro hac vice to represent Dr. DiGaetano and her clinic in that suit.
- Thomas learned of Cook’s adverse representation in April 2008 but did not move to disqualify Cook until January 2011; the trial court found Thomas had waived the right to seek disqualification and Thomas voluntarily dismissed his medical-malpractice suit in March 2011.
- In February 2013 Thomas sued Cook and others for legal malpractice, alleging Cook breached fiduciary duties and misused confidential information obtained earlier; defendants moved to dismiss under Rule 12(b)(6) as time-barred.
- The circuit court dismissed Thomas’s malpractice complaint as barred by the three-year statute of limitations, finding the limitations period began no later than April 2008; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did the 3‑year malpractice SOL begin to run? | SOL tolled under “continuing tort” because Cook’s adverse representation continued until March 2011. | SOL began when Thomas discovered Cook’s adverse representation (April 2008); continuing‑tort doctrine inapplicable. | Held: SOL began in April 2008 under the discovery rule; complaint time‑barred. |
| Does the "continuing tort" doctrine apply to breach of fiduciary‑duty legal malpractice? | Each act in Cook’s continued representation constituted repeated torts, tolling SOL. | Breach was a single overall fiduciary breach, not repeated wrongful acts; continuing‑tort doctrine does not apply. | Held: Not a continuing tort; continuing ill effects do not toll SOL. |
| Can plaintiff rely on Cook’s continued adverse participation after failing to seek timely disqualification? | Continued participation kept the wrong ongoing; tolling should run until representation ended. | Thomas waived disqualification by failing to move promptly; he cannot benefit from a situation he failed to stop. | Held: Waiver bars tolling—client cannot reserve disqualification and later claim tolling. |
| Are nonlawyer defendants (Dr. DiGaetano, clinic) liable for legal malpractice via respondeat superior? | They are vicariously liable because Cook acted as their agent. | Legal malpractice requires an attorney‑client relationship; respondeat superior inapplicable to independent counsel relationships. | Held: Claims against doctor and clinic fail—no attorney‑client relationship and respondeat superior does not apply. |
Key Cases Cited
- Bennett v. Hill-Boren, P.C., 52 So.3d 364 (Miss. 2011) (adopts discovery rule and rejects continuous‑representation tolling in malpractice suits)
- Stevens v. Lake, 615 So.2d 1177 (Miss. 1993) (continuing‑tort tolling requires continual unlawful acts, not continuing effects of a completed act)
- Smith v. Sneed, 638 So.2d 1252 (Miss. 1994) (malpractice SOL runs from discovery of negligence; continuing effects do not toll SOL)
- Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205 (Miss. 1996) (party must move to disqualify former counsel at earliest opportunity; failure constitutes waiver)
- Channel v. Loyacono, 954 So.2d 415 (Miss. 2007) (three‑year statute of limitations governs legal‑malpractice claims)
- Crist v. Loyacono, 65 So.3d 837 (Miss. 2011) (distinguishes malpractice types and confirms elements for breach of fiduciary/standard of conduct claims)