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Lehman v. Byrd & Wiser

United States District Court, S.D. Mississippi, Southern Division

September 16, 2014



LOUIS GUIROLA, Jr., Chief District Judge.

BEFORE THE COURT is the [9] Motion for Summary Judgment filed by Defendants Byrd & Wiser and Nicholas Van Wiser ("Wiser"), seeking dismissal of this legal malpractice action on the grounds that it is barred by the statute of limitations. Plaintiff Robert Lehman opposes the Motion, and claims that his lawsuit is not time-barred. Having reviewed the pleadings and the relevant law, it is the opinion of the Court that Lehman's Complaint was filed outside of the applicable three-year statute of limitations period. Accordingly, the Motion for Summary Judgment is granted.


In the year 1999, Plaintiff Lehman, a Louisiana resident, retained Defendant Nicholas Van Wiser, a Mississippi attorney, for legal services. According to the record, Lehman is also an attorney, but is not licensed to practice in Mississippi.[1]

Lehman hired Wiser to seek legal remedies in a contract dispute related to a construction project in Bay St. Louis, Mississippi. In July 1999, Wiser filed a complaint in the Chancery Court of Hancock County, Mississippi on behalf of three plaintiffs: Lehman, a corporate entity created by Lehman, and another individual. The specific facts underlying the Chancery Court lawsuit are not relevant here, but in summary, Lehman and the plaintiffs alleged, inter alia, that the defendants caused them financial damage by misappropriating and converting corporate assets by fraud, and that they illegally terminated a contract. (Chancery Ct. Record, Def. Ex. B 65-76, ECF No. 9-2).

The record in this case demonstrates that, in the months that followed the filing of the complaint in Chancery Court, Lehman repeatedly stressed to Wiser that the plaintiffs were in urgent need of certain remedies, and that time was of the essence. ( See, e.g., Lehman Memo, Def. Ex. E, ECF No. 9-5 (noting need for "immediate and forceful" legal measures, asking Wiser to call at "earliest opportunity"); Lehman Note, Def. Ex. F, ECF No. 9-6) (expressing frustration over Wiser's failure to file a notice of claim, stressing the need for immediate legal action, requesting a meeting)).

Apparently, by March of 2000, Lehman was frustrated with Wiser's handling of the matter and the progress of the litigation. On March 1, 2000, Lehman sent a letter to Wiser in which he expressed concerns about the status of the case, as well as what Lehman perceived as Wiser's lack of communication and failure to aggressively prosecute the plaintiffs' claims. (Def. Ex. A, ECF No. 9-1). Lehman stated that he had attempted to contact Wiser "repeatedly by telephone, " and that "again" his calls were unreturned. ( Id. ) Lehman complained that the "situation of no progress or communication" with Wiser seemed "to have deteriorated rather than improved." ( Id. ) Lehman went on to remind Wiser that, when they had first met the previous year, Lehman had explained "the acute need for an expedited hearing, " and that the "crucial need to act quickly was stressed over and over." ( Id. ) Lehman also referenced the fact that Wiser had advised the plaintiffs to file their lawsuit in state court, where a trial could be held in "five to seven months, " whereas Wiser had indicated that it would take a year to reach a trial date in federal court. ( Id. ) Lehman concluded: "Although a great deal of time has passed, we are unaware of any aggressive action which has been taken to protect our interests. As far as we know, there has never been any hearing before a judge.... Please advise." ( Id. )

The record does not contain any response from Wiser specifically addressing the concerns stated in Lehman's March 1, 2000 letter. On March 2, 2000, Wiser sent Lehman correspondence enclosing discovery responses from defendants. (Def. Ex. I, ECF No. 9-9). On March 13, 2000, Wiser sent Lehman a letter notifying him of a hearing on a Motion to Compel Discovery Responses scheduled for later that month. (Def. Ex. J, ECF No. 9-10). On April 4, 2000, Wiser sent Lehman more routine correspondence enclosing discovery responses from a defendant. (Def. Ex. K, ECF No. 9-11).

Inexplicably, following the April 4, 2000 letter from Wiser, the record is completely silent for a period of some ten years. Then, on March 29, 2010, Lehman sent a letter to Wiser seeking a trial setting in the Chancery Court action, stating "[w]e have not received any communications from you in quite a long time.... We would like to move this matter to a conclusion." (Def. Ex. L, ECF No. 9-12). There is no evidence of any correspondence between Lehman and Wiser during the period between early April 2000 and late March 2010. The parties' pleadings do not indicate that Lehman and Wiser communicated at all during that ten-year period. Additionally, it appears that after April 2000, no action was taken in Chancery Court by any party to that lawsuit. That record also falls silent in April 2000; it does not contain any entries after a Notice of Service of Discovery filed by defendants on April 5, 2000. (Chancery Ct. Record, Def. Ex. B. 2-3, ECF No. 9-2).

On April 28, 2010, having received no response to his March 29, 2010 letter, Lehman sent the same correspondence to Wiser again. (Def. Ex. M, ECF No. 9-13). On July 1, 2010, Lehman filed a complaint against Wiser with the Mississippi Bar, alleging that Wiser refused to communicate with his clients, neglected their case, and failed to protect his clients' rights. (Def. Ex. N, ECF No. 9-14). The Mississippi Bar dismissed the complaint against Wiser in October 2010. (Def. Ex. Q, ECF No. 9-17).

Lehman filed his Complaint in this action on April 26, 2013. He asserts diversity jurisdiction pursuant to 28 U.S.C. ยง 1332, and there is no dispute that Mississippi law applies to his claims.


Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); see also Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 325. Once the movant carries its burden, the burden shifts to the non-movant to show that summary judgment should not be granted. Id. at 324-25. The non-moving party may not rest upon ...

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