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Thomas v. Cook

Court of Appeals of Mississippi

July 28, 2015

AARON L. THOMAS, APPELLANT
v.
DAVID M. COOK, THE HARDISON LAW FIRM, P.C., DOLORES M. DIGAETANO, M.D., AND CHAMBERLIN CLINIC, P.A., APPELLEES

Page 1255

[Copyrighted Material Omitted]

Page 1256

COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 12/19/2013. TRIAL JUDGE: HON. ROBERT P. CHAMBERLIN. TRIAL COURT DISPOSITION: GRANTED MOTION TO DISMISS.

AFFIRMED.

AARON L. THOMAS, APPELLANT, Pro se.

FOR APPELLEES: STEPHEN C. BARTON, KEVIN O'NEAL BASKETTE.

BEFORE GRIFFIS, P.J., ISHEE AND MAXWELL, JJ. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J. CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION. WILSON, J., NOT PARTICIPATING.

OPINION

Page 1257

MAXWELL, J.

[¶1] By April 2008, Aaron L. Thomas knew his former attorney, David M. Cook, was representing the doctor Thomas had sued in a matter related to Cook's former representation of Thomas. Despite claiming Cook's adverse representation caused him great distress, Thomas opted not to have Cook disqualified. Instead he waited until March 2011 to ask the court to remove Cook from the case. By this time, the court ruled Thomas had waived any right to disqualify Cook.

[¶2] Thomas then waited another two years to sue Cook for legal malpractice. He claimed Cook's three-year-long representation of Thomas's adversary was a " continuing tort," which tolled the three-year statute of limitations until the representation ended in March 2011, when Thomas withdrew his lawsuit. But in legal-malpractice actions, Mississippi courts have never delayed the start of the running of the statute of limitations until the end of the lawyer's representation.[1] Rather, the three years to file a legal-malpractice suit starts to run as soon as the client learns (or should have learned) of his attorney's breach of care or conduct--even if the client continues to feel the ill effects of that breach for years to come.[2]

[¶3] Here, any ill effects Thomas experienced during the three years of litigation against his former attorney stemmed from his own failure to have Cook removed from the case. We find Thomas could not waive his right to have Cook disqualified and at the same time rely on Cook's continued adverse representation to toll the statute of limitations under the " continuing tort" doctrine. We instead find the three-year statute of limitations began to run in April 2008, when Thomas discovered Cook's alleged breach of fiduciary duty. Thus, his February 2013 legal-malpractice action was time-barred.

[¶4] We affirm the judgment dismissing Thomas's complaint.

Background Facts and Procedural History

I. Allegations in Thomas's Complaint

[¶5] Thomas appeals the dismissal of his complaint under Mississippi Rule of Civil Procedure 12(b)(6). We review the grant of a Rule 12(b)(6) motion de novo, taking the facts alleged in the complaint as true. Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (¶ 6) (Miss. 2006). Here is what Thomas alleged:

A. Board of Bar Examiners Hearing

[¶6] In 2006, Cook successfully represented Thomas before the Tennessee Board of Law Examiners (Board). Before taking the bar exam, Thomas disclosed to the Board that he had received conflicting psychiatric diagnoses from Dr. Dolores DiGaetano and Dr. Sherwin Yaffe. The Board ordered Thomas to " show cause" why his psychiatric condition should not keep him from obtaining his law license. Thomas hired Cook to represent him at the show-cause hearing. As part of the representation, Thomas authorized Cook to speak to Dr. DiGaetano and Dr. Yaffe about his diagnoses. Armed with the two doctors' affidavits, Cook convinced the Board that Thomas was fit to practice law.

B. Medical-Malpractice Lawsuit

[¶7] Six months later, in May 2007, Thomas notified Dr. DiGaetano that he planned to sue her and her medical clinic, Chamberlin Clinic, P.A., for medical malpractice. Three days later, Cook stormed into Thomas's office, accused him of being

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ungrateful, and demanded he retract his notice-of-suit letter. Thomas refused. And in October 2007, he filed a medical-malpractice action in the Circuit Court of DeSoto County, Mississippi.

[¶8] In March 2008, an attorney with Cook's law firm, Hardison Law Firm, PC, filed Dr. DiGaetano and Chamberlin Clinic's answer. A week later, Cook filed a motion to appear in the case pro hac vice as counsel for the two defendants.[3] Thomas immediately informed Cook that he did not have Thomas's permission to represent Thomas's adversaries in a substantially related legal matter.[4] But Thomas never moved the circuit court to have Cook disqualified--even though ...


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