Pamela J. Nail v. William R. Wright and Wright Law Firm P.A.;

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CA-00744-COA

PAMELA J. NAIL APPELLANT

v.

WILLIAM R. WRIGHT AND WRIGHT LAW APPELLEES
FIRM P.A.

DATE OF JUDGMENT: 01/31/2019
TRIAL JUDGE: HON. STEVE S. RATCLIFF III
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: HIAWATHA NORTHINGTON II
PAUL SNOW
ATTORNEY FOR APPELLEES: ALEXANDER FRANCIS CONNOLLY
NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL
INJURY AND PROPERTY DAMAGE
DISPOSITION: AFFIRMED - 09/08/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE BARNES, C.J., McDONALD AND McCARTY, JJ.

McCARTY, J., FOR THE COURT:

¶1. A few weeks after finalizing the terms of divorce with her husband, the wife learned

that their tax return for the previous year was going to show an income of over $800,000.

In her view, the financial statement her ex-husband had provided did not reveal such wealth.

Believing her lawyer had mismanaged her case by not learning more about her husband’s

income, she sued for legal malpractice.

¶2. Yet the wife sued her lawyer approximately three years and four months after learning

of the alleged discrepancy between the income reported on her ex-husband’s financial

statement and the income reported on the tax return. The trial court dismissed the case with
prejudice as time-barred. She appealed from that dismissal. After review, we affirm.

BACKGROUND

The Divorce

¶3. The core facts of this case are not in dispute. Pamela and Steve Nail were married in

1985, and had four children. After over 25 years of marriage, the two began divorce

proceedings. Pamela hired William Wright and his law firm, and Steve hired Richard

Roberts and his law firm.

¶4. Pursuant to Uniform Chancery Court Rule 8.05, the spouses exchanged sworn

financial statements containing their respective assets and liabilities. Steve’s 8.05 statement

provided information for over two dozen companies in which he had financial interests.

While detailed figures were given for the approximate debt of those companies, the columns

for fair market value, net value, and Steve’s monetary interest were all labeled “unknown.”

¶5. On May 30, 2013, Wright sent a letter to Roberts stating that his client, Pamela,

thought Steve’s 8.05 statement was incomplete. Wright requested, “Specifically, we would

like statements for each asset and liability.” “Also, Ms. Nail has reason to believe [the 8.05

statement] does not include each and every asset in his name, including, but not limited to,

valuable hunting equipment, a van, and a plane.” Wright asked Roberts to update the

financial statement so they could send over a settlement proposal.

¶6. Despite Pamela’s desire to determine the truth about her husband’s finances, Roberts

sent a letter a few months later to Wright expressing his belief the dispute was over. The

letter began, “Apparently our clients have been engaged in negotiations between

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themselves.” Roberts then added, “[I]t is my understanding that [Pamela] is agreeable to

settling the case on the basis of our last offer at mediation.”

¶7. After another mediation, the spouses came to terms and consented to a divorce on the

basis of irreconcilable differences in September 2013. In the property settlement agreement,

which was incorporated as a part of the judgment, Pamela agreed her husband would have

sole legal custody of the minor children. “Due to the disparity in the parties’ income,” the

agreement did not require her to pay any child support. Steve kept the house, another

unspecified home, and property in Belzoni. He also exclusively kept all of his business

interests. The agreement additionally established who among the couple and their children

would keep the ten cars. Steve kept his camper and his airplane.

¶8. Under the agreement, the couple agreed that Pamela would receive “rehabilitative

periodic alimony on a monthly basis” for five years in the amount of $7,000 per month,

totaling $420,000. Pamela also received a lump sum of $10,000, and Steve further agreed

to pay $10,500 to her law firm for their services to her.

The Tax Return and Efforts to Set Aside the Divorce

¶9. As part of the property settlement agreement, the former spouses agreed to cooperate

in a joint filing of their 2012 federal and state tax returns. Just a few weeks after the divorce

was final, Steve was preparing to file a tax return for the 2012 year. Shortly before the

extended deadline of October 15, 2013, Steve sent over the prepared tax return. It showed

that he was going to have a total reported income of $805,088.

¶10. Because it was a joint tax return, Pamela had to sign it before filing it. She signed her

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return declaring that “[u]nder penalties of perjury, I declare that I have examined this return

and accompanying schedules and statements, and to the best of my knowledge and belief,

they are true, correct, and complete.” Pamela signed the tax return around October 10, 2013.

¶11. Although she signed the tax return, Pamela and her lawyer both later expressed

surprise at Steve’s declared income. In Wright’s view, the husband’s 8.05 statement

projected a gross income for that year of about $104,000—resulting in a $700,000

discrepancy between what Wright initially thought Steve’s income would be and what it

actually was. According to Pamela, she “immediately” called her lawyer about the tax

returns.

¶12. In her words, “the income tax returns came back, and they were [$]800,000 off of

what they originally–what [Steve] said that they were. And William, the whole time through

my case, told me that I could only–he could only depend on Steve’s 8[.]05. And when [the

tax returns] came back . . . he said, ‘Don’t worry. I’ll take care of it. We’ll take him back

to court for fraud.’ And I said, ‘Great.’ I waited and called. And I kept trying to get him on

the phone or see what’s happening with my case. Months went by, and he wasn’t doing

anything.” She further detailed that in June 2014, she hired a different lawyer “just because

William wouldn’t do anything.”

¶13. However, the undisputed facts show that in February 2014, her lawyer did do

something. About four months after Pamela signed the tax return, Wright sent a letter to

Roberts protesting the income shown in the tax return. The first line of the February 20,

2014 letter read, “Our client, Ms. Pam Nail, has serious concerns that Mr. Nail did not

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accurately report his income on his Rule 8.05 Financial Statement, which was signed by Mr.

Nail on July 2, 2013, and relied upon during mediation on July 17, 2013.” The next line

discusses how this concern was triggered by the receipt “of the parties’ 2012 tax returns,

which [they had] reviewed.”

¶14. The letter essentially accused Steve of fraud and demanded copies of a variety of 2013

financial documents, such as bank statements, credit card statements, and tax returns. The

letter conceded, “Perhaps our suspicions that Mr. Nail did not accurately report his income

during the divorce proceedings are not accurate.” But it added that Pamela hoped reviewing

“these documents [would] put this matter to rest.”

¶15. A few weeks after Wright’s letter was forwarded, Roberts responded in detail: “As

part of this divorce process, you were provided with Mr. Nail’s 8.05 Financial Statement

which included supporting documentation, and over 300 financial documents regarding Mr.

Nail’s business interests. Mr. Nail assures us his 8.05 Financial Statement was true and

accurate at the time of his execution based on the information he had available to him at the

time of completion; however, in the spirit of cooperation, Mr. Nail has gathered the

documents requested in your letter and has provided them to our office.”

¶16. The letter further stated that “[t]he information contained in the [the corporate tax

documents] provided at mediation was accurate based on the information available to the

accountant at the time” and had changed as the year proceeded.

¶17. While the exact timeline is unclear, at some point after that exchange, Pamela

discharged Wright as her attorney. In 2014, through new counsel, she filed a motion under

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Mississippi Rule of Civil Procedure 60(b) to set aside the divorce agreement on the basis of

fraud. In July 2016, her now-ex-husband was deposed and provided much more information

about his finances.

¶18. In the fall of 2016, the chancery court ruled on Pamela’s request to set aside the

divorce on the basis of fraud. The trial court found Pamela’s “case in chief demonstrated

[she and her husband] were married for approximately 30 years[,] and [she] understood the

lifestyle they had come to enjoy[.]” The trial court held that Pamela “knew or should have

known with reasonable care and diligence of the information she asserts was not listed or not

accurate on [her husband’s] Rule 8.05 disclosure form and/or she had in her possession

documents disclosing such information prior to the time when the Final Judgment of Divorce

was entered.” The trial court further found that “[t]he evidence further showed that [she]

failed to discover such information based on her lack of due diligence and reasonable care.”

As a result, the chancery court denied Pamela’s request to set aside her divorce, finding “that

[Pamela] failed to prove by clear and convincing evidence that [Steve] made a

misrepresentation or committed fraud regarding his U.C.C.R. 8.05 financial disclosure form

prior to” the divorce.

¶19. Pamela did not appeal the chancery court’s denial of her request to set aside the

divorce. While her lawyer advised her that they could appeal, Pamela stated that she could

not afford to do it.

The Suit for Legal Malpractice

¶20. Less than a month after the trial court ruled against her efforts to set aside the divorce,

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Pamela shifted tactics. Shortly before Christmas of 2016, Pamela sent a detailed letter to

Wright’s insurer. She listed what she viewed as Mr. Wright’s failures, including his alleged

failure to conduct discovery, failure to adequately and fully research her husband’s finances,

and failure to investigate the perceived discrepancy on the 2012 tax return.

¶21. Pamela demanded $1,046,520 based on her calculation that “a reasonable permanent

periodic alimony award for [her] would have been at least $3,000 per month for the rest of

[her] life, plus a home to live in.” She noted that she “would rather resolve this with Mr.

Wright without the necessity of filing a public lawsuit and a public trial.”

¶22. The demand was ineffective. On February 28, 2017, Pamela filed suit against Wright

for legal malpractice. In an amended complaint, Pamela contended Wright “negligently

failed to properly investigate the facts of this case, negligently failed to properly work-up the

case, negligently failed to diligently pursue the divorce matter, negligently failed to ascertain

the fair market value of the ex-husband’s businesses and other assets, and negligently failed

to ascertain his true average annual income.” These failures, she claimed, “resulted in [her]

not receiving fair and equitable distribution of the marital assets, nor a fair permanent

monthly alimony award.”

¶23. The case was thoroughly litigated, with each side retaining experts to bolster claims

and defenses. For his expert, Wright retained Matthew Thompson, the author of a treatise

on domestic law and former chair of the Family Law Section of the Mississippi Bar.

Thompson opined that Wright had not fallen “below the reasonable standard of care when

discovering Steve Nail’s finances in connection with an irreconcilable differences divorce”

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and that if the husband had committed fraud, the chancery court could have set the divorce

aside.

¶24. For her part, Pamela relied upon the testimony of her expert, John Christopher, a

lawyer with nearly fifty years of experience in practice. Christopher believed “that attorney

Wright and his law firm failed to do any discovery whatsoever during the pendency of the

underlying lawsuit” and that this failure “fell below the accepted professional standards

resulting in substantial damages to his client, Pamela Nail.” Pamela also had the testimony

of Judith Barnett, a lawyer with extensive experience in domestic law, who stated that “[a]

reasonably prudent attorney would have fully investigated the marital assets and income of

the ex-husband before any settlement or mediation was done in the case” and that Wright

failed Pamela by not doing this.

¶25. Wright sought dismissal of the claims against him via motion for summary judgment,

arguing that his representation had not fallen below the standard of care and that Pamela’s

failure to get the divorce set aside after she terminated his representation further proved this

point.

¶26. Wright also focused his argument on the statute of limitations. While protesting that

he had not failed her in any way, Wright argued Pamela knew or should have known about

any damage she suffered when she saw the 2012 tax return or, in the alternative, no later than

the time the final judgment of divorce was entered.

¶27. Pamela disputed that argument and claimed there was no way she could have

understood the complexity or legal ramifications of the case. Her affidavit detailed that she

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“quit school in the eight[h] grade and [had] a GED” and that she did “not understand

anything about business dealings, taxes, or the law”; she instead relied on her lawyer to

advise her. Further, she stated that Wright “gave [her] a false sense of security by continually

reassuring [her] that things were progressing along fine and to trust him and that he would

get [her] a fair settlement (after the judgment was entered).”

¶28. The trial court reviewed the parties’ arguments and relied on the uncontested facts to

find that “[u]pon receipt of the 2012 tax return in October 2013, [Pamela] Nail discovered

what she believed to be her husband’s additional undisclosed income.” Afterward, “Wright

determined that there was an adequate explanation for the alleged additional income, and

there were insufficient grounds to set aside” the agreed-upon divorce.

¶29. Notwithstanding the discovery rule applicable to legal malpractice claims, the trial

court found that “[Pamela] Nail had knowledge of the 2012 tax return and knew or should

have reasonably known of any alleged negligent conduct no later than October of 2013.” The

trial court ruled that Pamela “was aware of the potential injury of the then newly discovered

2012 tax return, and [that] it [was] not unrealistic or impracticable to believe [Pamela] Nail

could and did expect and discover the alleged malpractice and potential injury” at the same

time. As to her argument that “the statute of limitations began to run when another lawyer

advised her of a potential malpractice claim,” the trial court found that such a rule “would

allow her to effectively establish her own statute of limitations simply by claiming ignorance

of the facts, law and procedure without exercising reasonable diligence, even though she was

aware of the conduct for years.”

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¶30. Having identified these material, undisputed facts, the trial court granted summary

judgment on Pamela’s claims against Wright. After post-judgment rulings, including a denial

of a motion to transfer venue, Pamela appealed.

STANDARD OF REVIEW

¶31. We review the grant of summary judgment de novo. Bennett v. Hill-Boren P.C., 52

So. 3d 364, 368 (¶12) (Miss. 2011). “When reviewing the evidence on summary judgment,

the Court should view the evidence in the light most favorable to the nonmovant.” Id. “The

de novo standard also applies on review of the trial court’s application of the statute of

limitations.” Id.

ANALYSIS

¶32. Pamela’s paramount argument on appeal is that summary judgment should not have

been granted based on the statute of limitations. She claims Wright failed her by not fully

and adequately investigating her ex-husband’s finances and that he actively concealed his

failures from her. In her view, Wright’s mistakes lead to an issue over when she knew or

should have known of any alleged negligence, which would have to be resolved by a jury.

¶33. “The three-year statute of limitations applies to actions for legal malpractice.” Id. at

369 (¶13); see Miss. Code Ann. § 15-1-49 (Rev. 2012). The discovery rule can be applied

to legal malpractice cases. Bennett, 52 So. 3d at 369 (¶14). “Under the discovery rule, as

applied in a legal-malpractice action, the statute of limitations begins to run on the date that

the plaintiff learns, or through reasonable diligence, should have learned, of the negligence

of the lawyer.” Id. at (¶15). “The discovery rule is applied when the facts indicate that it is

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unrealistic to expect a layman to perceive the injury at the time of the wrongful act.” Id.

(internal quotation mark omitted). Our Supreme Court has explained that the discovery rule

can be applied in cases of this type “because requiring a layperson to ascertain legal

malpractice at the time it occurs would necessitate the retention of a second attorney to

review the work of the first.” Id.

¶34. When there is a genuine issue over whether a statute-of-limitations period has run, that

issue is a fact-question which should be resolved by a jury. See Miss. Valley Silica Co. Inc.

v. Barnett, 227 So. 3d 1102, 1121 (¶47) (Miss. Ct. App. 2016), abrogated on other grounds

by Portis v. State, 245 So. 3d 457 (Miss. 2018); Punzo v. Jackson County, 861 So. 2d 340,

346 (¶22) (Miss. 2003) (In a dispute over whether a bridge was causing a home to flood, the

Supreme Court held that “genuine disputes as to the ability to discover a latent injury are

questions of fact to be decided by the fact finder, not on summary judgment.”).

¶35. In Bennett, two sisters sued their former lawyers for botching a wrongful death case

involving their late mother. 52 So. 3d at 365-66 (¶1). Two expert-doctors opined that their

mother had suffered negligence in a hospital which resulted in a large decubitus ulcer and

gangrene in her left leg. Id. at 366 (¶5).

¶36. In 2000, the lawyers filed a lawsuit against the hospital and had summons issued. Id.

at (¶6). However, the process server sent a letter to one of the lawyers stating that the

summons to the nursing home had been returned “as faulty.” Id. About a year later, one of

the sisters sought to terminate one of the lawyers and requested return of the file. Id. at 367

(¶6). The lawyer never formally withdrew. Id. In 2005, “[t]he trial court dismissed the case

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for want of prosecution[.]” Id.

¶37. There was no question the lawyer had failed to effect service on the defendant. In

fact, discovery revealed that the lawyer owned a file folder that contained legal research

detailing how to lengthen the time for service of process. Id. at (¶7). “However, neither [of

the lawyers] ever sought the issuance of an alias summons or sought leave from the court for

additional time to effect service of process.” Id. After the sisters hired a new lawyer, his

note in the file about the status of the case said, “What a mess.” Id. at (¶8).

¶38. The sisters ultimately filed a lawsuit against their former lawyers in 2007. Id. at 368

(¶10). The lawyers argued that the statute of limitations had passed on any claims. Id. “In

response, [the client] asserted that, under the discovery rule, the earliest time that she knew

or reasonably should have known of the alleged malpractice was when her new counsel had

obtained the case file in 2005.” Id. at (¶11). The trial court held that the statute of limitations

began to run when the client had attempted to terminate the lawyer in 2001 or at a later date

in 2002 when he had unsuccessfully tried to settle the case. Id.

¶39. On appeal, the Supreme Court reversed because “the evidence submitted on summary

judgment created a ‘genuine issue of material fact’ as to whether the first time that [the

sisters] knew or with reasonable diligence should have known of the alleged malpractice was

when their new attorney received the case file in 2005.” Id. at 370 (¶19). The uncontested

facts revealed that the lawyers “admitted in their interrogatory responses that they never had

informed [their clients] of the failure to serve” the hospital. Id. “Viewing the evidence in

the light most favorable” to the nonmovant, the Court held that the client “presented evidence

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that she and [her sister] had lacked actual knowledge of the alleged malpractice prior to her

new counsel’s review of the case file in 2005.” Id.

¶40. Nor did it matter that the clients did not peer into the court records because “they had

received no information that should have alerted a layperson to possible negligence.” Id. at

370 (¶23). “The news that their attorneys were having trouble or difficulty with serving [the

hospital] was not the type of information reasonably guaranteed to communicate to a

layperson that the reason for the difficulty was that their attorneys may have been guilty of

negligence.” Id. For these reasons, and based on the complicated nature of the responses

their lawyers had provided them, the Court found that “there was a genuine issue of material

fact as to when [the clients] knew, or in the exercise of reasonable diligence should have

known, of the alleged legal negligence,” and that the lawyers’ evasive answers to them also

created “genuine issues of material fact concerning possible fraudulent concealment.” Id.

at 373 (¶28).

¶41. Pamela relies on this case for the proposition that the trial court should not have

dismissed her case. However, in many ways her case is the inverse of Bennett. There, the

lawyers admitted only they knew about the failure to achieve service of process on the

defendant and that “they never had informed [their client] of the failure to serve” the hospital.

Id. at 370 (¶9).

¶42. In contrast, in this case it is uncontested that Pamela knew of the alleged discrepancy

in her husband’s income—which is the basis for her claims against Wright. On October 10,

2013, Pamela signed the joint tax return for her and her husband. She did so under penalty

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of perjury by stating that everything in the tax return was correct. Pamela did not refuse to

sign the tax return.

¶43. On that day, she learned of what she believed was a $700,000 income discrepancy.

Furthermore, as she testified in her deposition, she “immediately” called her lawyer to talk

about the issue. As the trial court concluded, because the injury was discovered at that

moment, the statute of limitations began to run. While Pamela may not have understood or

fully comprehended the alleged failures or inaction that led to the income discrepancy, she

fully knew of the difference in what she saw on her ex-husband’s 8.05 statement and what

she saw on the tax return. Because her discovery took place more than three years before she

filed suit against her attorney, the claims are time-barred.

¶44. Even viewing the evidence in the light most favorable to the nonmovant, the record

reveals Pamela’s knowledge about the discrepancy at another point. Three years and eight

days before she filed suit, Wright sent her ex-husband’s lawyer a letter affirming that Pamela

knew something was wrong. On February 20, 2014, her lawyer sent a letter to the husband’s

lawyer. The first line reads, “Our client, Ms. Pam Nail, has serious concerns that Mr. Nail

did not accurately report his income on his Rule 8.05 Financial Statement, which was signed

by Mr. Nail on July 2, 2013, and relied upon during mediation on July 17, 2013.” The next

line discussed how this concern was triggered by the receipt “of the parties’ 2012 tax returns,

which [Pamela and her attorney] reviewed.” The letter also shows that more than three years

before she filed suit against Wright, Pamela affirmatively knew of the harm she allegedly

suffered due to her lawyer’s negligence.

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¶45. This letter greatly diminishes any subsequent claim by Pamela that she was unaware

of the financial discrepancy that she claims she failed to notice because of her lawyer’s

failures. Not only did she sign and verify under oath on October 10, 2013, that she agreed

the tax return was correct—and therefore clearly disclosed her knowledge of the alleged

financial discrepancy—she then threatened further legal action through her attorney on

February 20, 2014. Both of these events definitively occurred more than three years prior

to her filing suit against Wright for legal malpractice.

¶46. Furthermore, while the moment she signed the tax return may have revealed the sum

total of what she believed was proof her husband was concealing assets and money, Pamela

had already been investigating the veracity of her husband’s finances. Months before the

divorce was final, Pamela had suspected that the 8.05 statement was flawed. On May 30,

2013, Ms. Nail’s lawyer sent a letter to her husband’s lawyer stating that “Ms. Nail [had]

reason to believe” her husband’s 8.05 statement was incomplete after seeing that the form

omitted a plane he owned, a van, and hunting equipment. Also, critical financial values were

listed as “[u]nknown.”

¶47. Even viewing the evidence in the light most favorable to the nonmovant, the discovery

rule only means that the statute of limitations begins to run on the date that the plaintiff

learns, or through reasonable diligence, should have learned of the negligence of the lawyer.

All of Pamela’s claims against Wright are premised on the idea that his failure to investigate

her husband’s finances resulted in her loss. Yet she personally learned of the alleged loss

more than three years before filing suit. Further, the timeline established by the record shows

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that it was only after her efforts to set aside the divorce faltered that Pamela began to pursue

a malpractice claim against Wright.1

¶48. Pamela’s admitted knowledge of the alleged income discrepancy is also reason

enough for us to conclude that it is not necessary that a jury resolve the statute of limitations

issue. When she signed the joint tax return on October 10, 2013, Pamela swore under penalty

of perjury that she understood the tax return and that everything in it was true. She later

testified that the amount of her husband’s income shocked her. But this surprise is premised

wholly on the reality that she discovered it the same day she signed the tax returns. Because

there is no factual dispute as to when she learned of the injury that she attributed to her

attorney, there is no need for a jury to resolve the question of when the statute of limitations

1
The separate opinion focuses on one alleged act of negligence related to the
chancery court’s refusal to set aside the divorce. Pamela claimed that her lawyer failed her
by not filing the Rule 60(b) motion to set aside the divorce and that he “should have filed
the Rule 60(b) motion immediately in order to preserve their client’s rights.”
However, the claim to set aside the divorce is set on the same foundation as the other
issues in this case—that Steve allegedly misrepresented his income on his 8.05 statement.
Like the other issues, the date that was learned by Pamela is dispositive. It is undisputed that
Pamela learned of any discrepancy in income at the moment she signed the joint tax return
under penalty of perjury. Pamela was also aware that no such motion had been filed by
Wright.
Furthermore, Pamela’s successive counsel did file a motion to set aside the divorce;
in considering the matter, the chancery court concluded that Pamela could not meet the
standard to set aside the divorce under Rule 60(b)(1) or Rule 60(b)(6). In denying the
request to set aside the divorce, the chancery court made a factual finding that after 30 years
of marriage, Pamela “understood the lifestyle they had come to enjoy” and so “knew or
should have known with reasonable care and diligence of the information she asserts was
not listed or not accurate on [her husband’s] Rule 8.05 disclosure form and/or she had in her
possession documents disclosing such information prior to the time when the Final
Judgment of Divorce was entered.” The trial court further found that “[t]he evidence further
showed that [she] failed to discover such information based on her lack of due diligence and
reasonable care.”

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began to run.

¶49. All clients are entitled to lawyers who will be diligent, competent, and zealous. While

the discovery rule can be applied in legal malpractice cases, “the statute of limitations begins

to run on the date that the plaintiff learns, or through reasonable diligence, should have

learned, of the negligence of the lawyer.” Bennett, 52 So. 3d at 369 (¶15). Because the

client in this case affirmatively knew that there was a discrepancy in her husband’s financial

status and that it had not been learned during the litigation of her divorce, she had three years

from the moment she discovered the alleged discrepancy to file suit against her attorney.

Because Pamela waited over three years before filing suit, the trial court was correct to

dismiss her suit as time-barred.

¶50. On appeal, Pamela also maintained an argument that the circuit court should have

transferred her suit to chancery court. Our affirmance of the summary judgment dismissal

means this issue does not have to be addressed.

¶51. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS AND
McDONALD, JJ., CONCUR. GREENLEE, J., CONCURS IN PART AND DISSENTS
IN PART WITHOUT SEPARATE WRITTEN OPINION. LAWRENCE, J.,
CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
OPINION, JOINED BY GREENLEE, J.

LAWRENCE, J., CONCURRING IN PART AND DISSENTING IN PART:

¶52. I agree with the majority that any legal malpractice claims by Pamela concerning the

handling of the divorce and/or the inadequate investigation of Steve’s finances during the

pendency of the divorce are barred by the statute of limitations. Those claims were

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discoverable in October 2013, and the period to file an action ended in October 2016.

However, I disagree that all of Pamela’s alleged legal negligence claims in her amended

complaint are barred. Therefore, I would reverse the dismissal of the remaining claim based

on Rule 60(b) and remand this case for further proceedings.

I. The Divorce

¶53. Pamela and Steve’s divorce was finalized by an agreed order on September 3, 2013.

The mediation during July of that year apparently had its intended effect; the parties resolved

the issues together and told their lawyers to draft the necessary documents. Those documents

were prepared and submitted to the trial court, which entered the orders terminating the

marriage and resolving all property issues. In October of that same year, Steve’s 2012 tax

returns were completed, and a copy was forwarded to Pamela’s attorney, William Wright.

Upon review, it was obvious there was a discrepancy in the total income between the tax

returns Steve had prepared for the couple and Steve’s Rule 8.05 financial statements that had

been exchanged prior to the mediation.2

¶54. Pamela became immediately concerned about the additional income listed on the tax

returns, which was not listed on Steve’s Rule 8.05 financial statement and contacted her

divorce attorney, Wright. Wright did not file any motions with the court. Rather, he sent

Steve’s attorney a letter (dated February 24, 2014) inquiring about the substantial income

discrepancy. Finally, in June 2014, Pamela, unsatisfied with Wright’s inaction, went to

another attorney (Barnett) who filed a Rule 60(b)(6) motion alleging fraud and concealment

2
While Steve’s Rule 8.05 financial statement indicated his total income for 2012 was
$104,796, the 2012 tax return indicated a total income of $805,088.

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of income on Steve’s part. The motion requested the original divorce order be modified.

The trial court ultimately denied that motion.

II. The Complaint

¶55. Pamela filed a legal malpractice lawsuit against Wright on February 28, 2017. The

original lawsuit alleged a failure to properly investigate and conduct discovery during the

divorce proceedings. The basis for that allegation arose out of the income discrepancy

regarding Steve’s true financial condition. The complaint specifically stated:

[Wright] failed to advise and to disclose to Plaintiff that upon information and
belief, [Wright] knew or had reason to know that certain financial valuations
should have been made to properly assess Plaintiff’s Ex-husband’s financial
holdings and assets . . . . [Wright] failed to properly research and
investigate the Ex-husband’s income, financial holdings, and other assets.

(Emphasis added). The original complaint only alleged that Wright failed to properly

investigate Steve’s financial condition during the divorce proceeding. The original complaint

did not allege that Wright committed legal malpractice by failing to file a Rule 60(b) motion

after the discovery in October 2013 of the substantial discrepancy in the 2012 tax return and

the Rule 8.05 financial statement. That language was added in the amended complaint. The

trial court determined that Pamela knew or should have known of Wright’s potential legal

malpractice when she received the tax returns on October 14, 2013. Therefore, according

to the trial court, the statutory limitations period expired three years later on October 14,

2016. Because Pamela’s complaint was filed February 28, 2017, the trial court dismissed the

entire action.

¶56. The majority affirms the trial court’s grant of summary judgment on the statute-of-

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limitations issues. I agree with the majority in affirming the trial court’s determination that

Pamela was aware of any potential lack of investigation by Wright during the divorce in

October 2013 when she received the tax returns. Because the complaint was filed more than

three years later on February 28, 2017, the statutory limitations period had expired on that

particular claim. However, Pamela also claimed that Wright committed malpractice when

he failed to take corrective action under Rule 60(b) within six months of learning of the

income discrepancy and potential fraud. That is a separate legal claim for which a different

statute-of-limitations time period applied.

III. The Amended Complaint

¶57. On September 22, 2017, Pamela filed an amended complaint against Wright, alleging:

By negligently failing to file anything whatsoever and allowing the six (6)
month deadline to expire. Not only did Defendants fail to file the Rule 60(b)
motion within the six (6) month deadline, but they failed to advise the client
that it should be filed within six (6) months of the Judgment date. (This is a
critical point because if a party waits more than six (6) months postjudgment,
then the standard for setting aside a judgment is one of fraud on the Court, not
fraud on the adverse party. The standard is much higher, clear and convincing
evidence, to prove fraud on the Court according to Mississippi case law.).

Wright filed an amended answer denying the new allegations of legal malpractice.

Mississippi Rule of Civil Procedure 15(c) states that “[w]henever the claim or defense

asserted in the amended pleading arose out of the conduct, transaction, or occurrence set

forth or attempted to be set forth in the original pleading, the amendment relates back to the

date of the original pleading.” Thus, any allegation alleged in the amended complaint related

back to the filing of the original complaint as long as the new allegations arose out of the

same conduct or occurrence. All of the allegations in the complaints arose out of Wright’s

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alleged legal malpractice concerning Steve’s income and the accurate reporting of that

income.

¶58. Further, in response to Wright’s motion for summary judgment, Pamela attached

affidavits from various attorneys. One of the attorneys, John Christopher, clearly opined that

Wright committed legal malpractice when he failed to file a Rule 60(b) motion for fraud

within the six-month time requirement. His affidavit stated as follows:

After Mr. Wright received Mr. Nail’s 2012 federal income tax return which
evidenced that Mr. Nail has made substantially more money in 2012 than he
had reported on his 8.05 financial statement, Mr. Wright did not take action to
set aside the divorce judgment via Rule 60. Mr. Wright knew, or with
reasonable diligence should have known, upon receiving Mr. Nail's 2012
income tax return on October 14, 2013, that Mr. Nail misrepresented his
income to the court and to Mrs. Nail. Even after learning of Mr. Nail's
misrepresentation of his income to the court and to Mrs. Nail, Mr. Wright
failed to file a motion for relief from the judgment pursuant to [Rule]
60(b), which provides that he had six months from the date of the
judgment to file the motion.

(Emphasis added).

¶59. In Smith v. Sneed, 638 So. 2d 1252, 1255-58 (Miss. 1994), the Mississippi Supreme

Court held that the statute of limitations in legal malpractice actions begins to run on the date

the client learns or through exercise of reasonable diligence should have learned of the

lawyer’s negligence. In doing so, the court stated that “any burden placed upon an attorney

by application of the discovery rule is less onerous than the injustice of denying relief to

unknown victims.” Id. at 1258 (quoting Willis v. Maverick, 760 S.W.2d 642, 645-46 (Tex.

1988)). Further, the court held that a tort must be completed before the statute begins to

run. Id. at 1255-56. “For legal-malpractice claims predicated on negligence, the plaintiff

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‘must prove by a preponderance of the evidence: (a) the existence of an attorney-client

relationship; (2) negligence on the part of the lawyer in handling the affairs of the client

which have been entrusted to the lawyer; and (3) proximate cause of the injury.’” Gibson v.

Williams, Williams & Montgomery P.A., 186 So. 3d 836, 848 (¶34) (Miss. 2016) (quoting

Pierce v. Cook, 992 So. 2d 612, 617 (¶11) (Miss. 2008)).

¶60. Here, the “act” that allegedly resulted in malpractice could not have occurred any

earlier than the time to file a Rule 60(b) motion expired. The legal malpractice claim on

failing to file a Rule 60(b) motion did not even accrue until the time to file the motion

expired in March 2014. In other words, since the judgment of divorce was dated September

3, 2013, Attorney Wright had six months from that date to file a Rule 60(b)(1) motion.

Therefore, Attorney Wright had until March 3, 2014, to file a motion to set aside the

September judgment under Rule 60(b)(1). His failure to do so was the exact allegation of

negligence in the amended complaint.

¶61. The trial court incorrectly lumped all of Pamela’s legal malpractice claims together

when they were separate and distinct torts entailing different duties at different times.3 One

was alleged to have occurred during the divorce proceeding (failure to investigate) and one

was alleged to have occurred after she received Steve’s tax returns (failure to file a Rule 60

3
The trial court did not specify that it was ruling under Rule 60(b)(1) and Rule
60(b)(6) as stated by the majority. The amended complaint and the affidavits attached to the
plaintiff’s response to the motion for summary judgment clearly articulate a separate claim
for failure to file a Rule 60(b)(1) motion, yet the court never addressed that claim. As a
result, the court erroneously combined the plaintiff’s legal malpractice claims and
improperly applied the same limitations period to both claims when they, in fact, accrued at
different times.

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motion). The failure to investigate financial claims was known or reasonably likely to be

discovered on or after October 14, 2013, when the tax documents were in hand. The breach

of the duty to file a Rule 60(b) motion could not occur until the six-month time period

allowed by Rule 60(b) expired. The earliest that six-month period would have expired was

March 3, 2014, meaning the three-year limitations period would not have expired until March

3, 2017. Pamela filed her complaint on February 28, 2017. Because I believe that the trial

court incorrectly held the limitations period ran on the failure to file a Rule 60(b) motion

claim and dismissed that claim when it was filed within the limitations period by virtue of

Rule 15(c), I respectfully dissent.

GREENLEE, J., JOINS THIS OPINION.

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