Miss. SC revives legal malpractice lawsuit

By Jessica M. Karmasek | Feb 2, 2011


JACKSON, Miss. (Legal Newsline) - The Mississippi Supreme Court has reversed the decision of a lower court in the case of a woman who sued her former counsel for legal malpractice after they allegedly failed to serve the defendants in her wrongful death lawsuit.

Mattie Bennett alleged that T. Robert Hill of Hill-Boren, P.C., and Leonard B. Melvin Jr. of Melvin & Melvin concealed the fact that they failed to serve the defendants. And it was this failure, she alleged, that resulted in the dismissal of her case.

The case before the state's high court was a result of Bennett's wrongful death lawsuit filed on Aug. 23, 2000.

Bennett's mother, Josephine Lewis, was admitted to Quitman County Nursing Home in 1996. Lewis then developed gangrene in her left foot and was admitted to Northwest Mississippi Regional Medical Center, or NMRMC, for amputation of the foot in July 1998. She was discharged a few weeks later.

After returning to the nursing home, a nurse discovered a large ulcer covering 90 percent of Lewis' buttocks. She was then admitted to the regional medical center in Memphis for treatment of the ulcer and for amputation of her left stump due to further gangrene problems.

Lewis' condition quickly deteriorated, and she was transferred to an extended-care, skilled nursing facility a couple of weeks later. The day after her transfer, she died from an infection in her bloodstream.

Bennett and her sister subsequently filed suit against the Quitman County Hospital and Nursing Home, Inc., and NMRMC. However, a lower court ended up dismissing the case in October 2005.

After her new counsel allegedly discovered that her former attorneys concealed their failure in serving the defendants, Bennett decided to file a legal malpractice suit against the two.

Hill and Melvin moved for summary judgment based on the expiration of the three-year statute of limitations.

But Bennett asserted that, under the discovery rule, the earliest time that she knew or reasonably should have known of her attorneys' alleged malpractice was when her new counsel obtained the case in 2005.

The Jones County Circuit Court rejected Bennett's argument, and held that the statute of limitations had begun to run, at the earliest, after she terminated representation in 2001 or, at the latest, when the attorneys last had represented Bennett and her sister in unsuccessful settlement negotiations in 2002. The court granted summary judgment to the attorneys and entered a final judgment in their favor.

However, the state Supreme Court, in its opinion filed Jan. 27, said there was a genuine issue of material fact as to the date that she or her sister knew or should have known about the alleged negligence.

Therefore, the Court reversed the circuit court's order granting summary judgment to Hill and Melvin and remanded the case.

Associate Justice David A. Chandler, who authored the opinion, wrote, "Bennett contends that Melvin's concealment of the failure of service and the resulting fatality to the wrongful death case was tantamount to an affirmative act of concealment. Hill's Jan. 2, 2002 letter to Melvin communicated that Hill had explained the failure of service to (Bennett's sister).

"It is reasonable to infer that Melvin reasonably relied on this representation from co-counsel and believed the situation had been 'explained to (Bennett's sister).' However, there is no evidence that, at any time between Aug. 30, 2000, when Melvin received notice of the failed service, and Jan. 2, 2002, Melvin took any measures to inform his clients of the failure."

The Court concluded, "As discussed above, there was evidence that the sisters were diligent in keeping abreast of developments in the litigation through repeated inquiries into the progress of the case. We find that there is a genuine issue of material fact as to whether fraudulent concealment by Melvin tolled the statute of limitations."

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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