McGilberry v. Ross

CYNTHIA McGILBERRY APPELLANT v. LISA M. ROSS APPELLEE

No. 2021-CP-01076-COA

Court of Appeals of Mississippi

September 13, 2022

DATE OF JUDGMENT: 09/09/2021

HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT TRIAL JUDGE HON. TOMIE T. GREEN

ATTORNEY FOR APPELLANT: CYNTHIA McGILBERRY (PRO SE)

ATTORNEYS FOR APPELLEE: WILLIAM E. WHITFIELD III JAMES E WELCH JR.

BEFORE BARNES, C.J., GREENLEE AND LAWRENCE, JJ.

GREENLEE, J.

¶1. Cynthia McGilberry retained an attorney named Lisa Ross to represent her in an underlying action against Select Specialty Hospital in federal court. After completing discovery, Select filed a motion for summary judgment, and Ross failed to file a response to Select's motion for summary judgment. The United States District Court for the Southern District of Mississippi dismissed the underlying action with prejudice. McGilberry subsequently filed a legal malpractice claim against Ross in state court for professional negligence, including breach of the duty of loyalty, breach of fiduciary duty, breach of contract, and tortious infliction of emotional distress. Ross moved for summary judgment, which the Hinds County Circuit Court granted. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In May 2013, Select employed McGilberry as the director of quality management. Her employment was terminated in October 2016. Shortly after, McGilberry retained attorney Lisa Ross to represent her in a federal Title VII action against Select involving allegations of racial and sexual discrimination.^[1] McGilberry pursued her claims against her employer in the United States District Court for the Southern District of Mississippi in April 2017. After the close of discovery, Select filed a motion for summary judgment in the federal case.

¶3. Ross filed a motion seeking additional time to respond to the motion for summary judgment. The district court granted Ross' motion and extended her deadline. Ross filed a second motion requesting additional time and was granted another extension. Ultimately, Ross failed to file a response to Select's motion for summary judgment by either deadline. In December 2018, the district court granted Select's motion for summary judgment, finding no genuine issue of material fact existed for a determination by a jury. Immediately following the order, McGilberry terminated Ross' representation and retained an attorney named Jeffery M. Williams. Williams filed a motion to reconsider the federal court's order, but the district court denied the motion.

¶4. In January 2019, following the denial of the motion to reconsider, McGilberry retained an attorney named Eduardo Felchas who appealed from the district court's order to the United States Court of Appeals for the Fifth Circuit. McGilberry's appeal was dismissed for want of prosecution. In June 2019, McGilberry, through her attorney, filed a legal malpractice action against Ross in the Hinds County Circuit Court, alleging that Ross was negligent by failing to respond to Select's motion for summary judgment. In October 2019, Flechas was disbarred and subsequently withdrew from representing McGilberry.

¶5. Ross filed an answer and affirmative defenses in the circuit court, essentially denying any liability. Soon after, Ross propounded interrogatories and requests for production to McGilberry in which Ross requested the identity of any experts expected to testify in McGilberry's behalf. After failing to receive a response to the interrogatories or requests for production, Ross filed a motion to compel. The circuit court granted Ross' motion in October 2019 and ordered McGilberry to respond before January 3, 2020, or face sanctions. In November 2019, McGilberry requested additional time to seek new counsel. The court granted her an extension to January 3, 2020. On January 3, 2020, McGilberry again requested additional time to find new counsel. The court granted the request and gave McGilberry an extension to February 3, 2020.^[2]

¶6. On February 3, 2020, an attorney named Drew Martin entered his appearance on behalf of McGilberry. In May 2020, Ross propounded requests for admission to McGilberry. McGilberry filed her response to Ross' interrogatories and requests for production in June 2020. After various correspondence between the parties, in August 2020, Ross filed a motion requesting the court to deem the matters in Ross' requests for admission admitted because McGilberry had not filed a timely response.

¶7. In October 2020, McGilberry filed a motion for leave to amend the complaint. The proposed amended complaint asserted claims of legal malpractice, professional negligence, breach of the duty of care, breach of Ross' fiduciary duty, breach of contract, bad faith breach of contract, and tortious infliction of emotional distress. McGilberry filed her responses to Ross' requests for admissions in November 2020.

¶8. In the same month, the court entered an order denying Ross' motion for sanctions and denying the motion to deem the matters in Ross' requests for admissions admitted. The court also granted McGilberry's motion to amend the complaint and ordered its own sanctions against McGilberry for failure to timely respond to Ross' discovery request. The court then entered an agreed scheduling order, setting a trial for September 20, 2021. The order also included deadlines for McGilberry and Ross to designate expert witnesses.

¶9. Ross filed an answer to McGilberry's first amended complaint on November 16, 2020. An amended order was entered re-setting the trial date to June 1, 2021. The following month, McGilberry filed a motion requesting additional time to designate an expert witness. In February 2021, the scheduling order was amended, re-setting the trial for September 20, 2021. The order also required McGilberry to designate expert witnesses by February 26, 2021, and Ross was ordered to designate expert witnesses by March 31, 2021. Shortly after, Martin filed a motion to withdraw as McGilberry's counsel, which the court granted. Ross timely designated an attorney named Jim Waide as her expert witness.^[3]

¶10. On April 2, 2021, McGilberry requested an extension of time to find a new attorney to represent her. The court granted McGilberry's request but informed her that no further extensions would be granted past April 22, 2021. On April 19, McGilberry informed the court that she desired to represent herself pro se.

¶11. In May 2021, Ross filed a motion for summary judgment seeking a dismissal of the action on the ground that McGilberry failed to designate an expert witness. McGilberry filed a pro se motion for an extension of time to obtain an expert witness. But in June 2021, McGilberry filed her response to Ross' motion for summary judgment. Ross filed a consolidated motion in limine to prohibit McGilberry from discussing liability insurance or any settlement negotiations, implying or mentioning that Ross had been subjected to McGilberry's complaint to the Mississippi Bar, or mentioning a desire for punitive damages at trial.

¶12. In August 2021, the circuit court granted Ross' motion for summary judgment and dismissed the action. In its opinion, the circuit court noted that McGilberry was required to show that "but for" Ross' alleged negligent representation, she would have been successful in the underlying litigation. The court found that McGilberry had failed to show credible proof, by expert testimony or otherwise, essential to survive Ross' summary judgment motion. McGilberry now appeals.

STANDARD OF REVIEW

¶13. We review an order granting summary judgment de novo. Ill. Cent. R.R. Co. v. Jackson, 179 So.3d 1037, 1044 (¶16) (Miss. 2015). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admission 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). "When reviewing the evidence on summary judgment, the Court should view the evidence in the light most favorable to the nonmovant." Bennett v. Hill-Boren P.C., 52 So.3d 364, 368 (¶12) (Miss. 2011). "[T]he court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried." Brown v. Credit Ctr. Inc., 444 So.2d 358, 362 (Miss. 1983) (quoting M.R.C.P. 56 cmt.).

DISCUSSION

I. The circuit court did not err in granting summary judgment against McGilberry.

¶14. McGilberry claims that summary judgment should not have been granted since Ross negligently breached her fiduciary duty and duty of care by not filing a response to summary judgment in the federal district court. In her view, Ross' mistakes constituted professional negligence and caused McGilberry to suffer financial loss and damages.

¶15. "Generally, attorneys owe to their clients duties falling into three broad categories." Est. of St. Martin v. Hixson, 145 So.3d 1124, 1128-29 (¶9) (Miss. 2014) (quoting Baker Donelson Bearman &Caldwell P.C. v. Muirhead, 920 So.2d 440, 449 (¶35) (Miss. 2006)):

First[,] [she] owes a duty of care consistent with the level of expertise [she] holds [herself] out as possessing. This duty of care imports not only skill or expertise, but diligence as well. Second[,] [she] owes [her] client a duty of loyalty and fidelity, which includes duties of confidentiality, candor and disclosure. Third[,] [she] owes any duties created by [her] contract with [her] client.

Id. at 1129 (¶9). McGilberry accuses Ross of violating her duty of care and her duty of loyalty. The analysis is different for the two duties; therefore, we will address them separately.

A. Duty of Care

¶16. To prevail on a claim for legal malpractice based on an allegation of...