Bennett v. Hill-Boren P.C.
52 So. 3d 364
| Miss. | 2011Background
- Bennett sued Hill-Boren, P.C. and Melvin & Melvin for legal malpractice arising from failure to serve NMRMC in the underlying wrongful-death case.
- Underlying case filed Aug 23, 2000; NMRMC allegedly not served; CT Corporation indicated summons faulty and no further service occurred.
- Washington terminated Melvin in late 2001; the case was dismissed for want of prosecution Oct 14, 2005; Hill and Melvin did not seek withdrawal until Oct 13, 2005.
- Melvin received a 2000-2002 internal file noting excusable neglect for service delays but did not seek alias summons or court relief.
- Bennett claimed the discovery rule tolling began when new counsel obtained the case file in 2005; trial court held limitations ran from 2001 or 2002; court reversed and remanded.
- Court held there were genuine issues of material fact regarding when Bennett and Washington knew or should have known of the alleged malpractice and possible fraudulent concealment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the legal-malpractice statute start under discovery rule? | Discovery rule tolls from 2005 when new counsel obtained the file | Continuous-representation rule does not apply; discovery rule governs | Genuine issues of material fact on discovery-start date; not barred on summary judgment. |
| Did fraudulent concealment toll the statute? | Melvin concealed failure to serve and its impact; tolling possible | No clear concealment evidence; discovery in discovery | Genuine issue of material fact on fraudulent concealment tolling. |
| Are Hill/Melvin's knowledge imputable to Bennett/Washington under agency rules? | Knowledge of failure to serve was part of the representation | Agency imputation not applicable in legal-malpractice against attorney | Agency imputation rejected; not controlling for tolling. |
Key Cases Cited
- Channel v. Loyacono, 954 So.2d 415 (Miss. 2007) (establishes discovery rule for legal malpractice; no continuous-representation tolling)
- Sneed v. Smith, 638 So.2d 1252 (Miss. 1994) (discovery rule governs when layperson cannot easily detect attorney negligence)
- Champluvier v. Beck, 909 So.2d 1061 (Miss. 2004) (discovery rule applied; termination date not controlling)
- Blailock ex rel. Blailock v. Hubbs, 919 So.2d 126 (Miss. 2005) (reasonable diligence requirement for discovery-rule tolling)
- Spann v. Diaz, 987 So.2d 443 (Miss. 2008) (public-record knowledge can toll under discovery rule in malpractice)
- Stevens v. Lake, 615 So.2d 1177 (Miss. 1993) (discussed continuous-representation concept; not adopted in Mississippi)