283 So.3d 676
Miss.2019Background
- Gulfport OB-GYN hired the law firm Dukes, Dukes, Keating & Faneca (Blum) in 2008 to prepare an employment agreement for Dr. Donielle Daigle that included a noncompetition covenant.
- The written covenant prohibited competitive practice for three years "following termination of her employment by the Employer," and allowed waiver in exchange for $150,000 liquidated damages.
- Dr. Daigle later resigned, opened a competing practice, sued Gulfport OB-GYN asserting the covenant was unenforceable, and ultimately settled for $425,000 after a chancery-court ruling that the covenant did not apply to voluntary resignation.
- Gulfport OB-GYN sued Blum and the firm for legal malpractice, alleging negligent drafting of the covenant caused its damages. The circuit court granted summary judgment for defendants, finding Gulfport OB-GYN failed to show causation.
- The Mississippi Supreme Court affirmed, holding the malpractice plaintiff must prove that but for the attorney’s negligence a more favorable result would have been obtained (i.e., the third party would have accepted different terms or the client would have been better off declining the deal).
Issues
| Issue | Gulfport OB-GYN (Plaintiff) Argument | Dukes firm (Defendant) Argument | Held |
|---|---|---|---|
| Causation standard in transactional legal malpractice | Negligent draftsmanship is distinct from negotiation malpractice; need not show third party would have agreed — harm arose directly from poor drafting that enabled suit | Plaintiff must prove but-for causation: that a more favorable contract would have been obtained (third party would have accepted or client would have been better off declining) | Court: Traditional but-for causation applies; plaintiff must show attorney’s negligence caused the failure to obtain a better result |
| Whether evidence showed an agreement to different terms | Blum’s affidavit and negotiation exchanges show intent that covenant apply to resignation, so Daigle (or her counsel) effectively agreed | The written contract controls; negotiation record does not show an agreed-upon alternate covenant | Court: Record does not show the parties agreed to different terms; contract as drafted was the agreement |
| Applicability of negligent-drafting precedent (no negotiation element) | Relies on cases distinguishing pure drafting errors from negotiation failures — says trial-within-a-trial is inapplicable | Those cases involved preexisting agreements where the instrument failed to effect agreed terms; here the contract itself was the agreement | Court: Distinguishing cases are inapposite; plaintiff must still prove but-for causation in transactional malpractice |
| Damages foreseeability and avoidance | If properly drafted, covenant would have been enforceable and Gulfport OB-GYN would have avoided litigation and settlement costs | Plaintiff cannot speculate what Daigle would have done; without proof of acceptance, causation is speculative | Court: Mere speculation insufficient; absent proof that better terms would have been accepted or would have led to a better outcome, summary judgment proper |
Key Cases Cited
- Crist v. Loyacono, 65 So.3d 837 (Miss. 2011) (trial-within-a-trial test for proximate cause in negligence-based legal malpractice)
- Norman v. Anderson Reg'l Med. Ctr., 262 So.3d 520 (Miss. 2019) (both factual and legal proximate cause required in negligence)
- Bullard v. Guardian Life Ins. Co. of Am., 941 So.2d 812 (Miss. 2006) (elements of tort: duty, breach, causation, damages)
- Donald v. Amoco Prod. Co., 735 So.2d 161 (Miss. 1999) (duty of care by attorneys is a question of law reviewed de novo)
- Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205 (Miss. 1996) (requires showing attorney error would have led to success in underlying action)
- Clark v. Neese, 262 So.3d 1117 (Miss. 2019) (written contract language controls over extrinsic drafting explanations)
- Hardy v. Brock, 826 So.2d 71 (Miss. 2002) (summary judgment reviewed de novo)
- Olier v. Bailey, 164 So.3d 982 (Miss. 2015) (viewing evidence in light most favorable to nonmovant on summary judgment)