Bennett v. Hill-Boren, P.C.

• Decision Date: 27 January 2011
• Docket Number: No. 2009-IA-01418-SCT.,2009-IA-01418-SCT.
• Citation: 52 So.3d 364
• Court: Mississippi Supreme Court
• Parties: Mattie BENNETT, individually and on behalf of the wrongful death beneficiaries of Josephine Lewis, deceased and as administratrix of the Estate of Josephine Lewis, Deceased v. HILL-BOREN P.C., T. Robert Hill, Melvin & Melvin and Leonard B. Melvin, III, Executor of the Estate of Leonard B. Melvin, Jr., Deceased.

52 So.3d 364

Mattie BENNETT, individually and on behalf of the wrongful death beneficiaries of Josephine Lewis, deceased and as administratrix of the Estate of Josephine Lewis, Deceased
v.
HILL-BOREN P.C., T. Robert Hill, Melvin & Melvin and Leonard B. Melvin, III, Executor of the Estate of Leonard B. Melvin, Jr., Deceased.

No. 2009-IA-01418-SCT.

Supreme Court of Mississippi.

Jan. 27, 2011.

52 So.3d 365

Hiawatha Northington, II, Ridgeland, Alma Walls, Clarksdale, attorneys for appellant.

John Benton Clark, Thomas Ray Julian, Jackson, attorneys for appellees.

Before GRAVES, P.J., DICKINSON and CHANDLER, JJ.

CHANDLER, Justice, for the Court:

¶ 1. Mattie Bennett filed a legal-malpractice action against Hill-Boren, P.C., T. Robert Hill (collectively, "Hill"), Melvin & Melvin, Leonard B. Melvin, Jr. (collectively, "Melvin"), 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

52 So.3d 366

Melvin had failed to serve process on a defendant, which had resulted in the dismissal of the case.

¶ 2. Melvin moved for summary judgment based on the expiration of the three-year statute of limitations. In response, 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, and entered a final judgment in favor of Melvin pursuant to Mississippi Rule of Civil Procedure 54(b). See M.R.C.P. 54(b).

¶ 3. Because Bennett submitted evidence that, under the discovery rule, the earliest time that she or Washington knew or with reasonable diligence should have known of the alleged malpractice was when her new counsel had obtained the case file in 2005, there was a genuine issue of material fact as to the date that she or Washington knew or should have known about the alleged negligence. Therefore, this Court reverses the trial court's order granting summary judgment to Melvin. We remand this case for further proceedings.

FACTS

I. The Underlying Medical-Malpractice Case

¶ 4. Quitman County Nursing Home admitted Bennett and Washington's mother, Josephine Lewis, in approximately 1996. Lewis developed gangrene in her left foot, and she was admitted to Northwest Mississippi Regional Medical Center (NMRMC) for amputation of the foot on July 23, 1998. NMRMC discharged Lewis on August 3, 1998. Upon Lewis's return to the nursing home, a nurse discovered a large decubitus ulcer covering ninety percent of Lewis's buttocks. Lewis was admitted to the Regional Medical Center in Memphis for treatment of the decubitis ulcer and for amputation of her left stump due to further gangrene problems. Lewis's condition deteriorated, and she was transferred to an extended-care, skilled nursing facility on August 29, 1998. Lewis died from an infection in her bloodstream the next day.

¶ 5. Washington consulted Hill on the matter and, shortly thereafter, Hill hired Melvin as Mississippi counsel. Melvin received a letter from Dr. Carl A. Coppolino dated May 24, 1999, and a letter from Dr. Alan E. Kravitz dated August 13, 1999, that provided expert medical opinions that only NMRMC was negligent. Both physicians stated that Lewis had died from a blood infection caused by the decubitus ulcer. Both also stated that NMRMC was negligent because it had both caused the ulcer and failed to treat it. Dr. Kravitz stated that he found no negligence on behalf of Quitman County Nursing Home.

¶ 6. On August 23, 2000, Hill and Melvin filed a complaint on behalf of Washington and the other wrongful-death beneficiaries in the Circuit Court of Quitman County against the Quitman County Hospital and Nursing Home, Inc., and NMRMC, under the lease, operation, and management of Health Management Association, Inc., seeking $2,000,000 in actual damages and $5,000,000 in punitive damages. Melvin caused summonses to be issued for both defendants. An August 30, 2000, letter from the process server, CT Corporation, to Melvin reflects that the CT Corporation returned the NMRMC summons as faulty.

52 So.3d 367

Neither Melvin nor Hill again attempted to effect service. On November 12, 2001, Hill sent a letter to Melvin stating that Washington had insisted she terminate Melvin's representation due to a prior confrontation between Melvin and Washington. The letter requested return of Melvin's file. Melvin sent Hill letters acknowledging the termination on November 14, 2001, and November 16, 2001. However, Melvin did not file a motion in the trial court for permission to withdraw. The trial court dismissed the case for want of prosecution on October 14, 2005. Because Melvin never had withdrawn from the case, Hill moved for permission to withdraw for himself and Melvin on October 13, 2005, the day before the case was dismissed for want of prosecution.

II. The Instant Legal-Malpractice Case

¶ 7. The alleged legal malpractice arose from Melvin's failure to effect service of process on NMRMC. Melvin's file contained a legal-research memorandum dated August 28, 2000, on excusable neglect, the standard for obtaining an order enlarging the time for service of process. See M.R.C.P. 6(b). However, neither he nor Hill ever sought the issuance of an alias summons or sought leave from the court for additional time to effect service of process. Melvin received a letter from NMRMC's insurance carrier dated February 3, 2002. Although Melvin had been terminated, he responded on February 12, 2002, seeking settlement.

¶ 8. Hill hired new Mississippi counsel, Lucius Edwards. Upon Hill's review of the entire file and discussion with Edwards, Hill discovered that NMRMC had not been served and that this omission likely was fatal to the case against NMRMC. Hill wrote the following note on or about December 28, 2001:

This is a curious bunch of documents. Where is copy of complaint? Answer? For N.H.? I think the regional medical center is gone for failure to serve summons timely. See ltrs. to LM + client. Set depositions. Serve rogs. Do we have all documents? RFProduction? What a mess. [s/]R.

In a January 2, 2002, letter to Melvin, Hill stated:

I am very concerned about the lawsuit against the hospital (Northwest Mississippi Regional). It appears that you never obtained service on the defendants Northwest Regional and Health Management Association, Inc. (management company of the hospital), and time has expired to issue alias summons. This situation has been explained to Ms. Washington. I am not sure what damage has resulted from this error but I would suggest that you consider notifying your malpractice carrier of a potential claim.

If you have information that would establish good service on Northwest Regional and Health Management, please let me have it as soon as possible. Time is of the essence.

(Emphasis added.)

¶ 9. Notwithstanding this letter, in their interrogatory responses, both Hill and Melvin admitted that they never had informed Bennett or Washington of the failure to serve NMRMC. In Bennett's interrogatory answers, she stated that on or about March 19, 2001, Melvin had informed Washington that they were "having trouble" obtaining service of process on one of the defendants. She further admitted that, on or prior to January 2, 2002, Hill had informed Washington "about the difficulty of obtaining service of process upon the defendant [NMRMC]." Notably, Bennett's responses did not state that Washington had been told that the

52 So.3d 368

time had expired for service of process, as asserted in Hill's letter to Melvin.

¶ 10. The correspondence between Washington and Bennett and Hill reveals that the sisters repeatedly inquired about the status of the case through written correspondence and telephone calls. In a September 25, 2002, letter to Hill, Washington and Bennett complained that they had received little or no communication from their attorneys. They stated that they had been told that Dr. Kravitz had been gathering information, and that they should expect to go to court in spring 2002. In an April 8, 2003, letter, Hill informed the sisters that the case was in the discovery phase, including sending pleadings to the defendants and answering pleadings, and they were working hard to move everything along. But a May 3, 2004, letter from Hill to Washington stated that, upon review, Hill had concluded that the case could not be won because there was no way to prove negligence on behalf of the nursing home, and recommended dismissal. In a November 24, 2004, letter, Hill apologized for all the delays in the case. At no point in the correspondence did Hill address the failure to serve NMRMC. On or about April 4, 2005, Washington retained new counsel who commenced the instant legal-malpractice action, which was filed on October 22, 2007.

¶ 11. Bennett filed an amended complaint on November 15, 2007.¹ Melvin moved for summary judgment based on the expiration of the three-year statute of limitations. In response, Bennett asserted that, under the discovery rule, the...