Luvene v. Waldrup

• Decision Date: 27 July 2004
• Docket Number: No. 2002-CA-01313-COA.,2002-CA-01313-COA.
• Citation: 905 So.2d 697
• Parties: James LUVENE, Appellant v. Dorothy WALDRUP and Michael Cooke, Appellees.
• Court: Mississippi Court of Appeals

905 So.2d 697

James LUVENE, Appellant v. Dorothy WALDRUP and Michael Cooke, Appellees.

No. 2002-CA-01313-COA.

Court of Appeals of Mississippi.

July 27, 2004.

Rehearing Denied November 30, 2004.

Pearson Liddell, Mississippi State, Gregory C. Weiss, Michael J. Hall, attorneys for appellant.

Beverly Davis Buskirk, Donna M. Barnes, Tupelo, Grady F. Tollison, Oxford, John G. Wheeler, Tupelo, attorneys for appellees.

Before KING, C.J., BRIDGES, P.J. and CHANDLER, J.

BRIDGES, P.J., for the Court.

¶ 1. James Luvene filed a pro se complaint with the U.S. Equal Employment Opportunity Commission (EEOC) against his former employer, Metropolitan Life Insurance Company (MetLife), and his former supervisor, Shelby Ware. After notification of the EEOC's findings, on or around June 3, 1999, Luvene filed a lawsuit in the United States District Court for the Northern District of Mississippi alleging Title VII¹ race discrimination and retaliation against MetLife and Ware. However, process was not issued for more than 120 days. MetLife and Ware filed a motion to dismiss for insufficiency of service of process and on March 22, 2000, the motion was granted by the district court. Luvene filed a motion to reconsider but the district court denied his motion on April 6, 2000.

¶ 2. As a result of the dismissal, Luvene brought suit against Michael Cooke and Dorothy Waldrup on August 1, 2000, in the Circuit Court of Marshall County, Mississippi. Waldrup filed a motion for summary judgment which was heard by the lower court and later taken under advisement. The hearing on Cooke's motion for summary judgment was held on June 6, 2002. On July 15, 2002, the court granted both Waldrup's and Cooke's motions for summary judgment, ruling that Luvene failed to present to the court any genuine issue of material fact to his claim against Waldrup and Cooke and ruling as a matter of law that there was no basis for recovering against either of the attorneys.

STATEMENT OF THE ISSUES

I. WHETHER THE TRIAL COURT ERRONEOUSLY HELD THAT IN A SUMMARY JUDGMENT PROCEEDING ON THE ISSUE OF LEGAL MALPRACTICE, EXPERT OPINION IS REQUIRED TO PROVE THAT THE ATTORNEY BREACHED HIS/HER STANDARD OF CARE.

II. WHETHER THE TRIAL ERRONEOUSLY HELD THAT IN A SUMMARY JUDGMENT PROCEEDING ON THE ISSUE OF LEGAL MALPRACTICE, THE PLAINTIFF MUST PROVE THAT HE/SHE WOULD HAVE PREVAILED AT TRIAL ON THE UNDERLYING CLAIM.

III. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENTS TO DEFENDANTS WALDRUP AND COOKE.

IV. WHETHER THE TRIAL COURT ERRED IN NOT CONSIDERING THE AFFIDAVIT OF CHARLES YOST, ESQ., THE PLAINTIFF'S EXPERT, AS EVIDENCE THAT WALDRUP BREACHED HER STANDARD OF CARE AND CAUSED THE PLAINTIFF'S DAMAGES.

FACTS

¶ 3. Originally, Luvene filed a pro se complaint with the EEOC against his former employer, MetLife and his former supervisor, Ware, alleging violations of Title VII of the Civil Rights Act of 1964. Luvene retained Dorothy Waldrup, who is licensed to practice law in Louisiana, to represent him in pursuing his claims against MetLife and Ware before the EEOC. After the EEOC matter was concluded, Waldrup determined that Mississippi was the proper forum to file suit. She began to gather information in the case and requested information from Luvene about the identities and locations of individuals who could verify his allegations. Luvene gave Waldrup the name of Mary Ann Hurst, a former employee of MetLife who had also filed a claim against MetLife and Ware. After gathering more information, Waldrup believed Hurst was represented by Michael Cooke. She advised Luvene that a Mississippi attorney would be necessary to prosecute his claim and told Luvene that she would contact Cooke and ask him to serve as local counsel in the matter. Waldrup later informed Luvene that she had spoken to Cooke and he had agreed to represent Luvene, along with Waldrup, acting as local counsel, because Cooke was licensed to practice law in Mississippi and Waldrup was not.

¶ 4. On August 26, 1999, Luvene met with Cooke and Waldrup in Oxford, Mississippi. A contract was signed between Luvene and Cooke for legal services. Waldrup was not included in the contract in any way nor did her name appear on any of the pleadings filed in the district court by Cooke. Pursuant to the terms of their employment contract, Cooke filed a lawsuit against MetLife and Ware in the United States District Court for the Northern District of Mississippi.

¶ 5. However, the defendants in the federal MetLife action were not served with process within the 120 days provided by Rule 4(m) of the Federal Rules of Civil Procedure, and the district court dismissed the action without prejudice for insufficiency of service of process on March 22, 2000. The court determined that Luvene's status as a pro se litigant for most of the 120 day period did not constitute good cause entitling him to a mandatory extension of time in which to serve process, and the court declined to exercise its discretion to grant an extension of time to effect process. On or about April 5, 2000, Luvene filed a motion for reconsideration which was later denied by the court.

¶ 6. On August 1, 2000, as a result of the dismissal, Luvene filed a complaint alleging legal malpractice against Cooke and Waldrup in the Circuit Court of Marshall County. After extensive discovery, Waldrup and Cooke separately moved for summary judgment on October 12, 2001, and December 31, 2001, respectively, arguing that Luvene could not establish that "but for his attorney's negligence, he would have been successful in the prosecution" of the MetLife action. Appellees specifically relied upon Luvene's failure to show the existence of any damages as a result of the dismissal of the federal MetLife action.

¶ 7. At the March 8, 2002, hearing on Waldrup's motion, Luvene argued that it was "premature" to rule on the issue of damages because "those damages need to be determined by the trier of fact and it's just not right for summary judgment at this time." The court determined that Luvene failed to present an expert to support his legal negligence claim. The court also determined that Waldrup's offered expert affidavit was sufficient to refute mere allegations in a complaint. Additionally, at the hearing, the judge requested that Luvene disclose his expert witness(es) and he declined. At the conclusion of the hearing, Waldrup's motion was taken under advisement by the court.

¶ 8. On June 3, 2002, just three days before the hearing on Cooke's motion and after the hearing on Waldrup's motion, Luvene submitted the affidavit of attorney Charles Yoste, to support his position that Cooke and Waldrup were negligent in the handling of Luvene's case. The court determined that the filing of Yoste's affidavit was at least eighty-seven days after the date it was due (March 7, 2002) and therefore was untimely, and declined to give it consideration, and ordered it stricken from the record. On July 15, 2002, the court granted both Waldrup's and Cooke's motions for summary judgment reasoning that Luvene failed to present to the court any genuine issue(s) of material fact as to his claims against Waldrup and Cooke. In its opinion, the court stated that Luvene presented no evidence or testimony from an expert, either in person, by affidavit, or otherwise in a timely fashion. Additionally, the court determined that Luvene failed to show the existence of monetary damages and, to the contrary, found that Luvene took a job with another insurance company and was making more money with American General than he had with MetLife.

¶ 9. The case was dismissed with prejudice as to each appellee. Luvene now appeals to this Court.

STANDARD OF REVIEW

¶ 10. When reviewing a lower court's decision to grant or deny a summary judgment motion, it is proper to employ a de novo standard of review. Hudson v. Courtesy Motors, 794 So.2d 999, 1002(¶ 7) (Miss.2001) (citing Russell v. Orr, 700 So.2d 619, 622 (Miss.1997)).

¶ 11. The rule in Mississippi is that summary judgments shall be entered by a trial judge "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law . . ." M.R.C.P. 56(c).

¶ 12. It is standard practice that "summary judgment, in whole or in part, should be granted with great caution." Brown v. Credit Ctr. Inc., 444 So.2d 358, 363 (Miss. 1983). The moving party has the burden of proving that no triable genuine issue of fact exists, and the non-moving party is given the benefit of reasonable doubt. Tucker v. Hinds, 558 So.2d 869, 872 (Miss. 1990). However, the non-moving party cannot just remain silent and do nothing. Newell v. Hinton, 556 So.2d 1037, 1041(Miss.1990). He must bring forward "significant probative evidence demonstrating the existence of a triable issue of fact." Id. at 1042.

¶ 13. Furthermore, the plaintiff must show that the party charged is the party actually responsible for the wrong, with reasonable certainty or definiteness. Berry v. Brunt, 252 Miss. 194, 172 So.2d 398, 401 (Miss.1965). Also noted by the Berry court, "it is not enough that this shall be left to conjecture or to inferences so loose that it cannot be dependently told where conjecture ceases and cogent inferences begins." Id. (citing McCain v. Wade, 181 Miss. 664, 180 So. 748 (1938)).

¶ 14. In Brown, the court explained that while considering the motion for summary judgment, "the trial court must view all the evidence in the light most favorable to the non-movant." Brown, 444 So.2d at 363. Upon this consideration, the motion should be granted if the moving party is entitled to judgment as a matter of law, otherwise it should be denied. Id.

¶ 15. As in the case of Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1215 (Miss.1996), in order for a plaintiff to recover in a claim of negligence in a legal...