Century 21 Deep South Properties, Ltd. v. Corson, 89-CA-1099

Decision Date17 December 1992
Docket NumberNo. 89-CA-1099,89-CA-1099
Citation612 So.2d 359
PartiesCENTURY 21 DEEP SOUTH PROPERTIES, LTD., Donald J. Steighner and Gregory A. Meiers and Wife, Wanda M. Meiers v. James H. CORSON and Wife, Lucy H. CORSON.
CourtMississippi Supreme Court

Katherine S. Kerby, Gholson Hicks & Nichols, Ronald L. Roberts, Mitchell McNutt Threadgill Smith & Sams, Columbus, William R. Barnett, Jackson, for appellants.

Paul M. Neville, Jackson, for appellees.

Page 362

Before DAN M. LEE, P.J., and SULLIVAN and McRAE, JJ.

SULLIVAN, Justice, for the Court:

This appeal arises from a suit initially brought by the Corsons in the Lowndes County Chancery Court against the Meiers, Bob Keys and Thomas Vice, (owners of Keys & Vice Realty, now Century 21 Deep South Properties), and Donald Steighner, alleging breach of assumption warranty deed (Meiers), negligence (Keys & Vice), and legal malpractice (Steighner). The Meiers' answer included a cross-claim against Steighner for negligence. Frank Whitaker was subsequently added as a defendant as was Century 21 Deep South Properties.

The chancellor awarded the Corsons $75,000.00 damages against the Meiers (for breach of warranty), Steighner (for negligence), Century 21 (negligence), and Whitaker (negligence), jointly and severally, and $35,000.00 punitive damages against Steighner for gross negligence. Steighner was also ordered to pay the Corsons $10,000.00 attorney fees. The Meiers were awarded $5,000.00 against Steighner for his negligence. Whitaker was dismissed following execution of a covenant not to sue.

Century 21, the Meiers, and Steighner appeal to this Court and the Corsons cross-appeal, assigning the following errors:

CENTURY 21

I. Reversible error exists due to the refusal of the trial court to grant Appellant Century 21 Deep South Properties' motions for specific findings of fact and conclusions of law;

II. The trial court committed reversible error by its apparent finding of agency and/or sub-agency between the Corsons and Appellant Century 21 Deep South Properties, Ltd. and Frank Whitaker and Century 21;

III. The trial court committed reversible error by holding Appellant Century 21 Deep South Properties liable to the Corsons when there was no evidence of any breach of any legal duty by Appellant Century 21 Deep South Properties to the Corsons;

IV. The trial court committed reversible error through the failure to grant the motion for summary judgment or in the alternative for dismissal of Century 21 Deep South Properties Ltd.;

V. The trial court committed reversible error due to the failure to dismiss Century 21 Deep South Properties at the end of Plaintiffs' case in chief;

VI. The trial court committed reversible error by refusing to grant the motion to dismiss of Century 21 Deep South Properties due to the Corsons' failure to have persons in court necessary for a just adjudication pursuant to Rule 19 of the Mississippi Rules of Civil Procedure;

VII. The trial court committed error through the admission of the testimony of James T. Marsh;

VIII. The trial court committed error through the admission of the testimony of Robbie Earhart as to the Corsons' damages;

IX. The trial court committed reversible error by the award of damages against Century 21 Deep South Properties;

X. The trial court committed reversible error in the apparent holding that Century 21 Deep South Properties, Ltd., was liable for actions or inactions of Frank Whitaker;

XI. The damages awarded by the trial court for liens on the Corsons' property are in error as the Corsons never listed their property for sale while the liens existed;

XII. The trial court committed reversible error by not applying to Corsons the doctrines of assumption of risk and/or contributory negligence;

XIII. The trial court committed reversible error by requiring a realtor/broker to abide by the standards of an attorney; and

XIV. Reversible error exists by entry of the judgment against Appellant Century 21 Deep South Properties as the court's opinion under conclusions of law omits all reference as to any violation of any legal duty by Century 21 to the Corsons.

Page 363

GREGORY AND WANDA MEIERS

I. The Appellees were not entitled to damages, other than nominal damages, against Gregory A. Meiers and Wanda M. Meiers for their breach of the warranty contained in the assumption warranty deed; and

II. If the Appellees are entitled to a judgment against Gregory A. Meiers and wife, Wanda M. Meiers, then the Meiers should recover the amount of the judgment from Donald J. Steighner in addition to the amount awarded by the lower court.

DONALD J. STEIGHNER

I. Mississippi requires an attorney-client relationship in an action based on attorney or legal malpractice; and

II. Even under expanded theories of liability, the Corsons cannot recover here because neither they, nor their attorney, relied on work performed by Steighner.

CORSONS' CROSS-APPEAL

I. Was the trial court manifestly in error in cutting the Corsons' damages in half when the proof of loss of wages was undisputed?

II. Was the trial court in error in ruling that the offering of an attorney for proof on attorney's fees operated as a waiver of attorney-client privilege generally?

We will address only those assignments of error which merit discussion.

FACTS

James Corson, Appellee, is a human resource consultant who moved to Mississippi in January or February, 1980. In an effort to locate a home in Columbus, where he was employed with Mitchell, he contacted Frank Whitaker, a realtor in Columbus. There was no written agreement with Whitaker regarding the services he was to provide. The house hunt ended when Whitaker showed Corson the house belonging to Greg and Wanda Meiers. A contract for the sale and purchase of real estate, provided by Frank Whitaker Realty, was entered into by the Corsons and the Meiers on March 22, 1980, in connection with the purchase of the Meiers' house.

Whitaker explained to Corson that he was responsible for having title work done and Corson testified he named the law firm of Threadgill, Smith, Sanders and Jolly because Taylor Smith was the only lawyer in town that he knew. Corson said within a week Whitaker informed him that Century 21, the listing agent for the Meiers' property, had already contacted a law firm to do the title work and asked if Corson wanted to pay for the Threadgill firm to do the title work too. Corson, not wanting to pay for two title opinions, said he would leave it to Century 21. Although he testified that nothing specific was mentioned at the time regarding the title work Century 21 was providing, Corson stated that past experience in purchasing houses had taught him that title searches go back "essentially, forever." When Whitaker reported that the attorney doing the title work had discovered an easement problem (there was no access to the property without one), Corson assumed the attorney was doing a good job. Corson cancelled the closing because he did not want to buy property burdened with legal problems. Once the easement problem had been resolved the closing was rescheduled and held on April 3, 1980.

The Corsons moved into the house a few days after closing and had no reason to question their title until the fall of 1981, when James Corson attempted to take out a second mortgage on his home in order to buy a computer to use in his consulting work. First Columbus National Bank, the Corsons' lender, required a title search, which Corson thought would be less costly if performed by Dunn & Webb, the firm who had done the previous title work for Century 21. However, upon learning what their fee would be, Corson employed David Smith, another attorney in Columbus. As a result of Smith's title work, Corson learned that his property was encumbered by four liens which had been in existence at the time he purchased the property. He also learned that Donald Steighner, an attorney in Columbus, had closed the loan for the Meiers when they bought the property. Steighner's title opinion had revealed the

Page 364

existence of only two liens and those had not been satisfied or cancelled. The second mortgage was nonetheless obtained although the bank required the Corsons to use their cars as additional collateral. The Corsons borrowed a total of $32,800.00 between December, 1981 and April, 1985. ($17,800.00 of that amount was borrowed after Corson learned of the liens; the remainder was the second mortgage amount.)

Beginning in January, 1982, and continuing until April of that year, Corson had a series of conversations with Steighner regarding the liens. Corson testified that Steighner asked him to collect information about the liens so they could be taken care of, which Corson did, and Steighner reported the situation to his insurance company.

In June, 1982, Corson learned that he would be laid off from his job at Mitchell as of July 1, 1982. With personnel jobs in Columbus rare, Corson was concerned that he would not be able to pursue work in another geographic area because it would be difficult to sell his house as long as the liens existed. At this point Corson contacted Welborne Johnson, the Columbus attorney who was representing Steighner's errors and omissions carrier. A letter reflecting Corson's concern was sent from David Smith to Johnson.

Corson testified that he missed a job opportunity with General Tire in Mt. Vernon, Illinois, because of the situation with his house, but he further stated that he was not actually offered the job after he told General Tire that he would not be able to report to work immediately because of legal problems with his house. Although he made efforts to find other employment, October of 1982 found Corson subsisting on a combination of income from consulting work he did from his home and unemployment benefits. Corson opined that his failure to get the job at General Tire caused him to lose wages of at least $150,000.00. He admitted on...

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