Hutchinson v. Smith

• Decision Date: 04 August 1982
• Docket Number: No. 53300,53300
• Parties: Homer S. HUTCHINSON and Evelyn W. Hutchinson v. Ron C. SMITH.
• Court: Mississippi Supreme Court

Page 926

417 So.2d 926

Homer S. HUTCHINSON and Evelyn W. Hutchinson v. Ron C. SMITH.

No. 53300.

Supreme Court of Mississippi.

Aug. 4, 1982.

Taylor, Covington, Smith & Matrick, James E. Lambert, Jackson, for appellants.

Bennett, Lotterhos & Sulser, Joseph E. Lotterhos, Jackson, for appellee.

Before PATTERSON, C. J., and BOWLING and DAN M. LEE, JJ.

DAN M. LEE, Justice, for the Court:

This is an appeal from the Circuit Court of Hinds County wherein Homer S. Hutchinson and Evelyn W. Hutchinson, plaintiffs/appellants, instituted an action against Ron C. Smith, defendant/appellee, for alleged malpractice, growing out of legal services rendered in connection with bankruptcy proceedings involving the Hutchinsons. From an order dismissing the Hutchinsons' declaration as being barred by the three-year statute of limitations applicable to unwritten contracts, the Hutchinsons prosecute this appeal. We reverse.

On July 1, 1980, appellants filed suit against appellee for legal malpractice arising out of two bankruptcy petitions filed on their behalf by appellee. The declaration was amended on February 25, 1981, and charged that appellee negligently conducted the legal representation of the appellants by failing to list certain priority claims that could have been satisfied from the assets of the bankruptcy estate.

Appellants averred that, as a direct result of appellee's negligence, a tax obligation to the Mississippi Employment Security Commission in the amount of $900 survived the bankruptcy proceedings and remained as a debt and lien against appellants' property. Appellants incurred approximately $2300 in legal fees and expenses in order to reopen the bankruptcy case and have a tax debt to the Mississippi State Tax Commission discharged and cancelled and to obtain an injunction order to have the tax liens removed from the judgment roll books of Hinds County, and appellants were forced to pay approximately $737.71 in taxes, interest and penalties to the United States Government, which survived the bankruptcy proceedings. Judgment was demanded in the amount of $36,937.71.

On March 31, 1981, appellee filed his answer to the amended declaration denying the material averments thereof. Appellee affirmatively alleged that appellants were guilty of contributory negligence, comparative negligence, and assumed the risk by failing to disclose to appellee their liability to the taxing authorities.

Thereafter, on April 20, 1981, appellee filed a motion to dismiss, and plea in bar to the action, alleging the action was barred by the three-year statute of limitations. The trial court sustained appellee's motion to dismiss and plea in bar after hearing argument of counsel and authorities presented by each side.

I. Did the trial court erroneously apply the three-year statute of limitations to the case at bar?

The trial judge sustained appellee's motion to dismiss and plea in bar based on Mississippi Code Annotated section 15-1-29 (Supp.1981) which provides:

Except as otherwise provided in the Uniform Commercial Code, actions on an open account or account stated not acknowledged in writing, signed by the debtor, and on any unwritten contract, express or implied, shall be commenced within three (3) years next after the cause of such action accrued, and not after, except that an action based on an unwritten contract of employment shall be commenced within one (1) year next after the cause of such action accrued, and not after.

The trial judge evidently was of the opinion that the action was based on appellants' unwritten contract with appellee to render the services complained of rather than the basis of the action being in tort. On appeal, appellants contend the declaration sounded in tort. Therefore, the six-year statute of limitations provided in Mississippi Code Annotated section 15-1-49 (1972) should have governed the action.

The legislature has not passed a specific statute of limitations applicable to legal malpractice as has been done for medical or pharmaceutical malpractice. See section 15-1-36 (Supp.1981). It is interesting to note that prior to the passage of section 15-1-36, medical malpractice was governed by the six-year statute of limitations. Wilder v. St. Joseph Hospital, 225 Miss. 42, 82 So.2d 651 (1955). ¹

An action for legal malpractice may sound in either tort or contract. Mallen and Levit, Legal Malpractice Sec. 382 (2d Ed. 1981); Wade, A Survey of the Law of Legal Malpractice, Miss. Law Inst. 49 (1977); and 7A C.J.S., Attorney and Client Sec. 267 (1980).

The elements of an action for legal malpractice consist of the existence of the relationship of attorney and client, the acts constituting the alleged negligence, that the negligence was the proximate cause of the injury and the fact and extent of the injury alleged. Nause v. Goldman, 321 So.2d 304 (Miss.1975). Appellee contends that since the present action was not maintainable without pleading and proving the unwritten contract, which established the attorney/client relationship, it was, in substance, an action on the contract.

When an attorney undertakes the representation of a client, the law implies a promise that the attorney will execute the business entrusted to his professional management with that degree of care, skill and diligence which is commonly possessed and exercised by attorneys in practice in the jurisdiction. Thompson v. Erving's Hatcheries, Inc., 186 So.2d 756 (Miss.1966).

In Johnson v. Crisler, 156 Miss. 266, 125 So. 724 (1930), appellant brought an action for legal malpractice resulting from a false certificate to an abstract of title issued by an attorney on a parcel of property purchased as a result of the certificate of title issued by the attorney. Appellant's remedy was held barred by the three-year statute of limitations. In Grayson v. Wilkinson, 13 Miss. 268 (1845), and Hudson v. Kimbrough, 74 Miss. 341, 20 So. 885 (1896), in holding the wrongful conversion of a client's money was barred by the three-year statute of limitations, this Court more or less dealt with legal malpractice actions as contractual in nature.

Other cases decided by this Court speak of legal malpractice being based in tort. In Cook v. Rives, 21 Miss. 328 (1850), the six-year statute of limitations was successfully interposed to a legal malpractice action. Thompson v. Erving's Hatcheries, supra, and Nause, supra, both involved questions of negligence. White v. McRae, 380 So.2d 1390 (Miss.1980), makes it quite clear that a tort action may be maintained in a legal malpractice claim. In finding that an aggrieved client's complaint with the Mississippi State Bar had no effect on a separate private remedy in circuit court, this Court said:

We think neither principles of res judicata, collateral estoppel by judgment, nor election of remedies prevented White from pursuing a private tort remedy in the circuit court for money damages after failing to obtain satisfaction at the Mississippi State Bar.... (380 So.2d at 1391).

Since an action for legal malpractice may sound in tort or contract, an aggrieved client is faced with a choice of remedies. Baird, Legal Malpractice in Mississippi, 43 Miss.L.J. 691, 697 (1972), states:

Although the Mississippi Supreme Court has never expressly decided what statute of limitations applies to attorney malpractice actions, and since both the three year statute of limitations for contracts and the six year statute of limitations for torts have been applied in different cases, the logical conclusion is that a choice of remedies is available. Accordingly, if the statute of limitations might be a problem,...