Gibson v. Williams, Williams & Montgomery, P.A.

• Decision Date: 10 March 2016
• Docket Number: No. 2014–CA–01488–SCT.,2014–CA–01488–SCT.
• Court: Mississippi Supreme Court
• Parties: Bobby Leon GIBSON v. WILLIAMS, WILLIAMS & MONTGOMERY, P.A. and Joseph H. Montgomery.

186 So.3d 836

Bobby Leon GIBSON

v.WILLIAMS, WILLIAMS & MONTGOMERY, P.A. and Joseph H. Montgomery.

No. 2014–CA–01488–SCT.

Supreme Court of Mississippi.

March 10, 2016.

Seth C. Little, Chuck McRae, Christopher A. Bambach, attorneys for appellant.

James G. Wyly, III, Gulfport, Christine Malishka Bocek, attorneys for appellees.

Before DICKINSON, P.J., LAMAR and COLEMAN, JJ.

DICKINSON

, Presiding Justice, for the Court:

¶ 1. Bobby Leon Gibson ("Bobby") filed a legal-malpractice action against Joe Montgomery and his law firm, Williams, Williams and Montgomery, P.A. ("WWM"), alleging wrongful conduct in connection with the administration of his late wife's estate. The trial judge granted summary judgment to Montgomery and WWM. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. Our standard of review for an appeal of a summary judgment is de novo, and we review the facts in the record in the light most favorable to the nonmoving party,¹ who in this case is Bobby. Accordingly, we set forth the following factual background in the light most favorable to Bobby, giving him the benefit of all inferences favorable to him.

¶ 3. On March 29, 2009, a conservatorship was created for Bobby's wife, Deborah Miles Gibson ("Debbie"). The court appointed Debbie's brother, Michael Miles ("Michael"), as conservator. In connection with the petition to appoint conservator, Bobby signed a document entitled "Waiver of Process and Joinder" in which Bobby agreed "that this action may be heard and disposed of without further notice to [me]."

¶ 4. During the eighteen months that followed, Michael expended $238,371.41 of Debbie's funds, leaving a balance of just $4, 036.40 in the conservatorship account. And in violation of a requirement contained in the Letters of Conservatorship, Michael failed to deliver an inventory of Debbie's estate within three months.²

¶ 5. Debbie passed away on September 8, 2010. Her Last Will and Testament named the following beneficiaries: her husband Bobby, her son Miles Smith, Beth Ann McClendon, Elizabeth Minter, Bobby Leon Gibson III, and Michael Tidwell. Under the terms of the will, Bobby was to receive three real estate properties, the remaining balance of two bank accounts, and the life-insurance proceeds of a $400,000 policy.³ Debbie also bequeathed certain personal property pursuant to a handwritten list which was to be incorporated into the will.⁴

¶ 6. Following Debbie's passing, Montgomery summoned Bobby and others to a meeting at the offices of WWM to discuss Debbie's estate. At the meeting, Montgomery informed Bobby that he was the only "interested party" who had not signed the combined "probate proceeding petition" and that, if he signed the combined petition, he would receive "big money," but if he did not sign, the estate would sell certain guns which had sentimental value to Bobby. Montgomery also informed Bobby that Debbie's estate lacked sufficient assets to fund a $50,000 legacy to Bobby's grandson, and that Bobby should contribute $50,000 of the proceeds he received as beneficiary of Debbie's $400,000 life-insurance policy. The unpaid bequest to Bobby's grandson was the only one that had not already been satisfied.⁵ Further, Montgomery promised Bobby that, in exchange for contributing the $50,000 from his life insurance proceeds, he would give Bobby the guns, which were valued at only $14,468.48, but had high sentimental value to Bobby.

¶ 7. As a result of Montgomery's representations, Bobby signed the combined petition, which designated him as a "Petitioner."

Montgomery signed the petition as an "Attorney[ ] for Petitioners." At the time he signed the petition, Bobby was not told that Debbie's estate had been significantly depleted by Michael's expenditures as conservator, and Montgomery did not inform him that, by signing the petition, he would be waiving his rights to contest and to renounce Debbie's will and receive a child's share of the estate.⁶

¶ 8. Throughout the estate proceedings, Bobby did not challenge any distributions made pursuant to the will, the status of Debbie's estate, or the actions of the conservator, executor, or Montgomery. In fact, he joined and signed the "Inventory, First and Final Account by David Earl Miles, Petition to Pay Attorney's Fees and Costs, and Petition for Distribution, to Close Estate and Vest Title."

¶ 9. On May 16, 2011, the chancellor entered an order approving, ratifying, and confirming this petition, specifically noting that it had been joined by Bobby. Then, almost a year later—on May 10, 2012—Bobby retained separate counsel and filed a "Petition to Re–Open Estate of Deborah Miles Gibson and Request for Other Relief." In this petition, Bobby made allegations of impropriety by Michael as conservator of Debbie's estate, wrongful conduct by David Miles as Executor of Debbie's estate, and fraudulent conduct by Montgomery acting as Bobby's attorney. Service of process was not effected and no hearing was ever held to rule on the petition.⁷

¶ 10. On May 14, 2012, the chancellor entered a judgment finally closing Debbie's estate, but no language in the judgment mentioned or considered the merits of Bobby's petition to re-open. The next day, uninformed of this order, Bobby filed a complaint in the Circuit Court of Forrest County, asserting claims of legal malpractice against Christopher Howdeshell, attorney for the conservatorship; Pittman, Howdeshell, Hinton, and Hightower, PLLC; Joseph Montgomery; and WWM. Bobby also asserted claims for breach of fiduciary duty against these same defendants and additionally against Michael for his actions as conservator of Debbie's estate. After the case was transferred to the Chancery Court of Forrest County, Bobby voluntarily dismissed his claims against Michael, Howdeshell, and the Howdeshell firm, leaving only the legal-malpractice and fiduciary-duty claims against Montgomery and WWM.

¶ 11. Soon after dismissal of the other defendants, Montgomery and WWM filed a "Motion to Dismiss, or, alternatively, Motion for Summary Judgment," arguing 1) that Bobby's failure to comply with the thirty-day requirement in Section 11–1–39 required dismissal, 2) that the doctrines of res judicata and collateral estoppel barred Bobby's claims, 3) that judicial estoppel precluded Bobby's claims, and 4) that Bobby had failed to demonstrate that an attorney-client relationship existed between himself and Montgomery.

¶ 12. Following a hearing, Special Judge Hollis McGehee informed the parties by e-mail that he intended to grant summary judgment and dismiss Bobby's claims, and he ordered Montgomery to submit a proposed order. Special Judge McGehee then issued an order that included the following language:

The Court ... finds that neither party, and particularly Plaintiff Bobby Leon Gibson ..., has been able to produce any argument or authority which would overcome what the Court finds to be a "glaring error" in Plaintiff's claim: the Plaintiff himself, with present counsel, intentionally elected to abandon the remedy that would have provided him with a review of the very issue about which he now seeks to complain....The very issue Plaintiff complains about is one to which he agreed before the Chancery Court of For[r]est County. How, in a court of equity, can a competent person who has appeared (whether in person or by his/her pleading—a sworn representation to the Court) and consented to a particular relief and ruling later be heard to complain about his own agreement?

Notwithstanding Mr. Gibson's agreement to the relief about which he now complains, the Court affirmatively finds yet another undisputed fact that is outcome determinative: Mr. Gibson had pleadings pending before the Chancery Court of For[r]est County, Honorable Judge Gambrell, addressing the very issues about which he now complains and seeks recovery. But Mr. Gibson, through counsel, made the intentional decision to not pursue a claim that he not only could make but had made before this very Court. Counsel acknowledged in the hearing on May 22 that the Plaintiff made a conscious decision not to pursue his own claimed rights to pursue the remedy to which he was entitled to pursue. Plaintiff made a conscious decision, with the benefit of counsel who was clearly representing him, to abandon his rights in Chancery Court. Mr. Gibson, with advice of counsel, elected to forego his rights in Chancery Court to pursue a negligence claim in Circuit Court. He now, upon the transfer of the Circuit Court matter back to Chancery Court, seeks to complain that he did not get the relief to which he felt he was entitled. Yet, in this very proceeding, Mr. Gibson intentionally elected not to pursue his own allegations of a right to relief. Therefore, under all principles of equity and at law, Mr. Gibson's claim cannot withstand the test for summary judgment.

Further, even setting all that aside, there is an additional reason the Plaintiff's claim cannot survive WWM's Motion for Summary Judgment. Plaintiff has failed to make a showing sufficient to establish the existence of one (here more than one) of the three elements of malpractice—(1) an attorney-client relationship—plaintiff fails here; (2) the attorney's negligence in handling the client's affairs—Plaintiff fails at this point because he failed at the first element; and (3) proximate cause of injury—here the Plaintiff fails again, completely. How can Plaintiff be allowed to come into this Court of equity complaining about his outcome in the estate matter when he first consented to the relief he obtained and second, when he had a perfect remedy or route to have his claim or concern addressed but he intentionally and pointedly abandoned that right and opportunity to pursue a negligence claim in Circuit Court? Respectfully, this is astounding to the Court. It is tantamount to and has the practical effect of abandoning his proper remedy in Chancery Court to address his complaint in order to shore up his negligence claim in Circuit Court. Such cannot be.

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