Cynthia McGilberry v. Lisa M. Ross

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-CP-01076-COA

CYNTHIA McGILBERRY APPELLANT

v.

LISA M. ROSS APPELLEE

DATE OF JUDGMENT: 09/09/2021
TRIAL JUDGE: HON. TOMIE T. GREEN
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: CYNTHIA McGILBERRY (PRO SE)
ATTORNEYS FOR APPELLEE: WILLIAM E. WHITFIELD III
JAMES E. WELCH JR.
NATURE OF THE CASE: CIVIL - LEGAL MALPRACTICE
DISPOSITION: AFFIRMED - 09/13/2022
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

GREENLEE, J., FOR THE COURT:

¶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

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McGilberry also alleged a state law claim for wrongful termination.

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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

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Notwithstanding the court’s order allowing McGilberry additional time to seek new
counsel, Ross filed a motion for sanctions on January 31, 2020, based on McGilberry’s lack
of discovery responses.

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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

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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

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In the disclosure of the expert opinion, Waide opined:

Lisa Ross diligently took depositions of the decision-maker and other relevant
witnesses. These depositions failed to adduce any evidence of race
discrimination, sex discrimination, or retaliation. Further, the depositions
failed to show that Cynthia McGilberry reported any criminal act.

Any response to the motion for summary judgment would not have changed
the result.

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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.”

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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 negligence, or

breach of the standard of care, one must prove by a preponderance of the evidence “(1) an

attorney-client relationship; (2) the attorney’s negligence in handling the client’s affairs; and

(3) proximate cause of the injury.” Great Am. E & S Ins. Co. v. Quintairos, Prieto, Wood &

Boyer P.A., 100 So. 3d 420, 424 (¶17) (Miss. 2012) (citing Pierce v. Cook, 992 So. 2d 612,

617 (¶11) (Miss. 2008) (quoting Hickox v. Holleman, 502 So. 2d 626, 633 (Miss. 1987)

abrogated on other grounds by Miss. Transp. Comm’n v. McLemore, 826 So. 2d 31, 35-36,

39 (¶¶8, 22-23) (Miss. 2003))). It is undisputed that an attorney-client relationship existed

between Ross and McGilberry; therefore, we begin our analysis by addressing the remaining

two elements.

¶17. A lawyer’s duty of care requires her “to exercise the knowledge, skill, and ability

ordinarily possessed and exercised by the members of the legal profession similarly situated.”

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Id. (quoting Wilbourn v. Stennett, Wilkinson & Ward, 687 So. 2d 1205, 1215 (Miss. 1996)).

“Failure to do so constitutes negligent conduct on the part of the lawyer.” Pierce, 992 So.

2d at 617 (¶11).

¶18. Generally, “expert testimony is necessary to establish the breach of a duty of care in

a claim of legal malpractice.” O’Brien v. Alfonso, 240 So. 3d 471, 479 (¶37) (Miss. Ct. App.

2018) (quoting Byrd v. Bowie, 933 So. 2d 899, 904 (¶15) (Miss. 2006)). However, our

supreme court has “recognized that experts are not required in all legal-malpractice cases.”

Pierce, 992 So. 2d at 617 (¶15). The supreme court explained:

Attorneys involved in malpractice actions must always remember there is a
pragmatic difference between the trial of other professional malpractice cases
and a legal malpractice case. In the former class, the lawyers and judges are
laymen. In professional malpractice cases, excepting extreme cases, we rely
upon experts for guidance. The attorney who finds himself the defendant in
a legal malpractice case, however, has a judge and the trial attorneys who are
already experts.

Id. at 617-18 (¶16); accord O’Brien, 240 So. 3d at 480 (¶37). McGilberry did not present

expert testimony at the summary judgment stage.

¶19. McGilberry submits that Ross owed her a duty of care to act properly according to

their contractual agreement. Relying on Hickox v. Holleman, 502 So. 2d 626 (Miss. 1987),

McGilberry argues it is clear that Ross breached her duty of care by not filing a response to

the motion for summary judgment in federal court after the court granted two extensions;

thus, McGilberry maintains that Ross’ actions constituted negligence as a matter of law.

¶20. Hickox involved a legal malpractice claim for failure to file a complaint within the

statutory limitations period. Id. at 636. The attorney admitted that he “made no effort to

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check any law to determine the nature of the Hickoxes’ claim.” Id. Our supreme court found

that the attorney should have at least done some research to properly represent the Hickoxes,

especially since he was unfamiliar with the applicable law. Id. The court held that since the

attorney did not bother to even open a book, he was negligent as a matter of law and held that

the client bringing the negligence action was entitled to a directed verdict on liability without

presenting expert testimony on the breach of the standard of care. Id. at 634. The court,

quoting George v. Caton, 600 P.2d 822, 829 (N.M. Ct. App. 1979), explained:

It does not require expert testimony to establish the negligence of an attorney
who is ignorant of the applicable statute of limitations or who sits idly by and
causes the client to lose the value of his claim for relief. An attorney who
delays the bringing of an action until the statute of limitations has run is guilty
of negligence if the attorney did not act solely with a view to promote the
interest of his client. . . . Ignorance of statutes or rules of limitation of legal
remedies can in itself justify a finding of culpable negligence.

Hickox, 502 So. 2d at 636.

¶21. Unlike in Hickox, we cannot find that Ross was negligent as a matter of law for failing

to respond to a motion for summary judgment. She did not sit idly by. She requested two

extensions in an attempt to determine a legitimate and ethical response to the motion and was

unable to do so. Here, McGilberry was required to present “expert testimony . . . to support

an action for malpractice of a professional [attorney] in those situations where special skills,

knowledge, experience, learning or the like are required.” See Dean v. Conn, 419 So. 2d

148, 150 (Miss. 1982). McGilberry provided no such proof.

¶22. Furthermore, “[t]o recover for a duty-of-care violation, [McGilberry] must show that

‘but for [Ross’] negligence, [she] would have been successful in the prosecution or defense

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of the underlying action.” Est. of St. Martin, 145 So. 3d at 1129 (¶10) (quoting Wilbourn,

687 So. 2d at 1215). This is “commonly known as the ‘trial-within-a-trial test.’” Crist v.

Loyacono, 65 So. 3d 837, 842 (¶14) (Miss. 2011). According to the record, Ross requested

two extensions of time to file a response to the motion for summary judgment and ultimately

never filed one, allegedly after determining she had no defense based on the facts; however,

the district court explicitly granted the motion for summary judgment regardless of those

circumstances. The court explicitly reasoned that if McGilberry had sufficient evidence to

show genuine issues of material fact, she should have presented it, stating, “Not only has

[McGilberry] provided no explanation for her failure to do so, she has made no effort to

demonstrate that such evidence exists.”

¶23. McGilberry, citing Byrd v. Bowie, 992 So. 2d 1202, 1206 (¶12) (Miss. Ct. App. 2008),

claims that statements Ross made to the federal magistrate judge can establish the validity

of damages and, therefore, do not require an expert opinion that “but for” Ross’ negligence

McGilberry would have prevailed in the underlying action. Specifically, McGilberry claims

that Ross represented to the magistrate judge that McGilberry incurred more than $70,000

in lost wages and that this statement established her underlying claim and damages

assessment. McGilberry’s reliance on Byrd is misplaced.

¶24. In Byrd, plaintiffs brought a legal malpractice claim against their attorney and law

firm following the affirmance of a dismissal of a medical malpractice case due to the

attorney’s failure to timely designate a medical expert. Id. at 1203 (¶1). The attorney failed

to timely answer requests for admission in the legal malpractice case against him and the

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firm. Id. at (¶2). Two requests for admissions propounded by the plaintiffs stated, “The

damages of the Brown Parties in the Brown Death Action were $2,000,000,” and “[t]he

negligence of [the defendants] resulted in the Brown parties sustaining damages in the

amount of $2,000,000.” Id. at 1203-04 (¶12). Due to the attorney’s failure to timely answer,

“these two statements were deemed admitted by the attorney.” Id.; see M.R.C.P. 36(b). We

held that the grant of summary judgment was proper since all elements of the legal

malpractice claim, including proximate causation, were conclusively established by the

attorney’s failure to answer requests for admission on that issue. Byrd, 992 So. 2d at 1207

(¶13).

¶25. Here, Ross wrote a letter to the magistrate judge to provide the judge with an

overview of McGilberry’s case. In the letter, Ross stated, “McGilberry had incurred more

than $70,000 in lost wages.” In her answer to McGilberry’s amended complaint, Ross

admitted that a confidential memorandum to the magistrate judge contained a reference to

the loss of $70,000 in lost wages. She admitted that the confidential memorandum was

attached as an exhibit and spoke for itself. Except for what was admitted, the remaining

allegations in that paragraph were denied. While Ross stated that McGilberry’s lost wages

amounted to $70,000, unlike in Byrd, Ross did not make any admission that her negligence

resulted in McGilberry sustaining any damages. Thus, McGilberry was still required to show

that “but for [her] attorney’s negligence, [she] would have been successful in the prosecution

or defense of the underlying action.” Est. of St. Martin, 145 So. 3d at 1129 (¶10); see

Gulfport OB-GYN P.A. v. Dukes, Dukes, Keating & Faneca P.A., 283 So. 3d 676, 679 (¶7)

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(Miss. 2019) (“Proof of causation is always required when professional negligence is

alleged.”).

¶26. Furthermore, even though Ross admitted that she failed to file a response to the

motion for summary judgment in McGilberry’s federal case, the federal court, in its denial

of McGilberry’s motion to reconsider the grant of summary judgment, stated:

In the motion [for reconsideration], [McGilberry], through counsel, suggests
that “[t]he crux of the [c]ourt’s reason for granting summary judgment was the
failure of [McGilberry] to file a response, despite being given two extensions
of time.” While [McGilberry’s] failure to respond to the summary judgment
motion certainly affected the court’s analysis of the motion, the court’s
decision to grant summary judgment was not based on or because of
[McGilberry’s] failure to respond. “[S]ummary judgment cannot be granted
by default.” Fed. R. Civ. P. 56, advisory committee notes to 2010
amendments.

The court further expressed that “[McGilberry] failed to respond to [Select’s] well-supported

motion and there was consequently no proof to support the allegations in her unsworn

complaint.” The court explained that “[i]f McGilberry had sufficient evidence to create

genuine issues of material facts, she should have come forward with that evidence. Not only

has she provided no explanation for her failure to do so, she has made no effort to

demonstrate that such evidence exists.”

¶27. We also note that McGilberry asserts that she was further prejudiced by being

prevented from mentioning her informal Mississippi Bar complaint and a resulting committee

opinion regarding Ross’ allegedly wrongful and deficient acts and omissions during her legal

representation of McGilberry. Although McGilberry argues that Ross failed in her implied

and express ethical duties to her and that this perhaps could serve as a basis for invoking the

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disciplinary process, such failure is not a per se cause of action of civil liability. See Borries

v. Murphy, 324 So. 3d 261, 268-69 (¶29) (Miss. 2021) (“Failure to comply with an obligation

or prohibition imposed by [the Rules of Professional Conduct] is a basis for invoking the

disciplinary process. Violation of a Rule should not give rise to a cause of action nor should

it create any presumption that a legal duty has been breached.”).

¶28. Since McGilberry failed to produce any evidence that she would have been successful

in the prosecution of her underlying action had Ross filed a response, there is no evidence

that Ross breached her duty of care.

B. Duty of Loyalty

¶29. “The duty of loyalty is a fiduciary duty.” Borries, 324 So. 3d at 267 (¶24). The

fiduciary nature of a lawyer’s duties to his client include confidentiality, candor, and

disclosure. Singleton v. Stegall, 580 So. 2d 1242, 1245 (Miss. 1991). In particular, “the

relationship of attorney and client is one of special trust and confidence. The law requires

that all dealings between them shall be characterized by the utmost fairness and good faith

on the part of the attorney.” Lowrey v. Smith, 543 So. 2d 1155, 1160 (Miss. 1989). “When

a legal-malpractice claim is based on an allegation of breach of fiduciary duty, the plaintiff

must establish (1) the existence of an attorney-client relationship; (2) the acts constituting a

violation of the attorney’s fiduciary duty; (3) that the breach proximately caused the injury;

and (4) the fact and extent of the injury.” Est. of St. Martin, 145 So. 3d at 1129 (¶12)

(quoting Crist, 65 So. 3d at 842-43 (¶15)). “However, unlike a duty-of-care violation, a

plaintiff alleging a duty-of-loyalty violation does not have to prove that but for the breach,

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the plaintiff would have won the underlying case. Rather, the proof of proximate cause in

such cases is to be tailored to the injury the client claims and the remedy he elects.” Id.

(internal quotation mark omitted) (citing Crist, 65 So. 3d at 842 (¶14)). As stated above, it

is undisputed that an attorney-client relationship existed between Ross and McGilberry.

¶30. McGilberry claims that during the federal proceeding, Ross told her that a response

to summary judgment would be filed. She claims that based on Ross’ representation and

advice, her omission constituted a breach of fiduciary duty. According to McGilberry, she

was injured when she was denied the value of what she would have enjoyed if Ross had

performed her duties, including Ross’ loyal and diligent services as a fiduciary.

¶31. While it is true that a person may bring an action for a breach of fiduciary duty, in

order to recover, a party must also prove proximate causation. See Singleton, 580 So. 2d at

1245 (“That an action may lie for the lawyer’s breach of these duties is settled. Recovery,

however, requires proof of proximate cause[.]”). Specifically, a plaintiff must prove that the

fiduciary breach proximately caused the injury. See Wilbourn, 687 So. 2d at 1217.

¶32. Here, although McGilberry alleged that Ross breached her fiduciary duty, she failed

to show the causal connection. McGilberry was required to prove that Ross’ breach

proximately caused the dismissal of the underlying action and the chance to recover her lost

wages. In responding to a summary judgment motion, the non-moving party “may not rest

upon the mere allegations or denials of [her] pleadings, but . . . by affidavits or as otherwise

provided [by Rule 56], must set forth specific facts showing that there is a genuine issue for

trial.” M.R.C.P. 56(e). Other than making conclusory statements, McGilberry submitted no

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such proof in the Hinds County Circuit Court to create a genuine issue of material fact. This

Court reviews a motion for summary judgment de novo, and viewing the evidence in the light

most favorable to the nonmoving party, we find that there were no genuine issues of material

fact to submit to a jury.

II. Other Claims

¶33. In her complaint, McGilberry also asserted claims for breach of contract, bad faith

breach of contract, and tortious infliction of emotional distress. McGilberry acknowledges

that these causes are separate and distinct claims with different elements of proof and

damages. However, other than a passing reference to Tyson v. Moore, 613 So. 2d 817, 828

(Miss. 1992), McGilberry provides very little argument, fails to cite any authority, and does

not provide any credible evidence to support the elements of these causes of action. Her

briefing is insufficient to demonstrate reversible error. See Bissette v. Univ. of Miss. Med.

Ctr., 282 So. 3d 507, 518 (¶29) (Miss. Ct. App. 2019) (“The failure to cite relevant authority,

or the failure to connect the relevant authority to a case procedurally bars consideration on

appeal.” (citing Crawford v. Butler, 924 So. 2d 569, 576 (¶24) (Miss. Ct. App. 2005))).

CONCLUSION

¶34. Because McGilberry did not meet her burden through her response to the motion for

summary judgment, the circuit court’s order granting summary judgment in favor of Ross is

affirmed.

¶35. AFFIRMED.

BARNES, C.J., CARLTON, P.J., WESTBROOKS, McDONALD, LAWRENCE,
McCARTY, SMITH AND EMFINGER, JJ., CONCUR. WILSON, P.J., CONCURS

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IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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