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Buckley v. Citrin Law Firm, P.C.

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

October 11, 2017

JOSEPH BUCKLEY as ADMINISTRATOR OF THE ESTATE OF ETHEL LEE BUCKLEY PLAINTIFF
v.
CITRIN LAW FIRM, P.C., ELIZABETH A. CITRIN, ANDREW T. CITRIN, and SAMUEL McCLURKIN, IV DEFENDANTS

          AMENDED MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS [28][37] FOR SUMMARY JUDGMENT

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are the Motion [28] for Summary Judgment filed by Defendants Citrin Law Firm, P.C. (“CLF”), Andrew Citrin (“Mr. Citrin”), and Samuel McClurkin, IV (“Mr. McClurkin”), and the Motion [37] for Summary Judgment filed by Defendant Elizabeth Citrin (“Ms. Citrin”). These Motions are fully briefed. After due consideration of the record, the submissions on file, and relevant legal authority, the Court finds that the Motions [28][37] should be granted. This case will be dismissed with prejudice.

         I. RELEVANT BACKGROUND

         A. Defendants' Representation of Ethel Lee Buckley

         Beginning in October 2006, CLF, Ms. Citrin, Mr. Citrin, and Mr. McClurkin (collectively, “Defendants”) represented Ethel Lee Buckley (“Buckley”) in a slip-and-fall case against Singing River Hospital in the Circuit Court of Jackson County, Mississippi. Sullivan's Aff. [41-2] at ¶ 5-6; Compl. [1-2] at 2-3. In that case, the trial court ultimately granted defendant Singing River Hospital's motion for summary judgment on April 20, 2011, and dismissed the case. Defs.' Mem. [29] at 1; Pl.'s Mem. [42] at 1. The trial court's dismissal was based upon Defendants' failure to properly designate a medical expert to testify to duty, breach, causation, and damages. Defs.' Mem. [29] at 1; Pl.'s Mem. [42] at 1. Defendants filed an appeal on behalf of Buckley and the Mississippi Court of Appeals affirmed on October 2, 2012. Sullivan's Aff. [41-2] at ¶ 5-6; Pl.'s Answers to Defs.' 1st Set of Req. for Admis. [28-1] at 1. The court of appeals' opinion has been a matter of public record since that date. Pl.'s Answers to Defs.' 1st Set of Req. for Admis. [28-1] at 1.

         On November 1, 2012, Ms. Citrin called a meeting with Buckley. Sullivan's Aff. [41-2] at ¶ 9; Buckley Letter to Gillis [37-1]. Ms. Citrin provided Buckley with a copy of the Mississippi Court of Appeals' opinion and advised her that Defendants could do nothing more to assist with her case. Sullivan's Aff. [41-2] at ¶ 9; Buckley Letter to Gillis [37-1]; Pl.'s Answers to Defs.' 1st Set of Req. for Admis. [28-1] at 2. The next day, Buckley sent a letter to the Clerk of the Mississippi Court of Appeals, Kathy Gillis (“Gillis”), asserting that Buckley needed more time to find new lawyers to represent her in pursuing her claims against Singing River Hospital. Buckley Letter to Gillis [37-1]. Buckley wrote that she is “trying as hard as I can to get my case heard before the courts, ” but in the “8 years since I fell on my job, I have never been seen or heard in front of any Court or any court hearing personally.” Id.

         B. Buckley's Legal Malpractice Claim

         On November 30, 2012, Buckley met with attorney David Sullivan (“Sullivan”) to discuss retaining him to represent her. Sullivan's Aff. [41-2] at ¶ 5. Buckley informed Sullivan that Defendants previously represented her in her lawsuit against Singing River Hospital, id. at ¶ 6, and that the Mississippi Court of Appeals had affirmed the trial court's dismissal of her case on October 2, 2012, id. at ¶ 7-8. Buckley advised Sullivan that she met with Ms. Citrin on November 1, 2012, that Ms. Citrin informed her of the Mississippi Court of Appeals decision, and that Ms. Citrin told Buckley that Defendants could do nothing further to assist with her case. Id. at ¶ 9.

         Buckley also told Sullivan of her letter to Gillis, but indicated that she had received no response to the letter. Id. at ¶ 10. Sullivan contacted Gillis, who informed Sullivan that the court of appeals had not received Buckley's letter. Id. at ¶ 13. On November 30, 2012, Buckley executed a contingency fee contract with Sullivan to represent her in a legal malpractice claim against Defendants. Id. at ¶ 14; Contract for Employment [41-4]. That same day, Sullivan sent correspondence to Mr. Citrin, Mr. McClurkin, and CLF, advising of his representation of Buckley, requesting a copy of her file, and seeking a copy of Defendants' declarations page of their professional liability insurance policy. Sullivan Letter to Mr. Citrin [37-3].

         Gillis later contacted Sullivan, stating that she had received Buckley's letter, Sullivan's Aff. [41-2] at ¶ 16, and on December 11, 2012, the Mississippi Court of Appeals entered an order treating Buckley's letter as a pro se request to file an out-of-time motion for rehearing and extension of time to find new counsel, Dec. 12, 2012 Miss. Court of Appeals Order [41-6].

         On January 14, 2013, Mr. Citrin, on behalf of Defendants, filed a Motion to Withdraw as counsel for Buckley, noting that Sullivan represented Buckley. Mot. to Withdraw [41-7]. On January 22, 2013, the Mississippi Court of Appeals entered an order authorizing Buckley to file a motion for rehearing within fourteen days and granting the Motion to Withdraw filed by Mr. Citrin. Jan. 22, 2013 Miss. Court of Appeals Order [37-2].

         On February 1, 2013, counsel for CLF, J. Wyatt Hazard (“Hazard”), sent a letter to Sullivan. Hazard Letter to Sullivan [41-12] at 1. Hazard stated that “[t]he purpose of this letter is to advise that Ms. Buckley has a duty to mitigate her damages and to pursue the appellate process.” Id. at 2. Hazard took the position that “it is the duty of Ms. Buckley, and/or you, to timely file the Motion for Rehearing.” Id. at 1. On February 5, 2013, Sullivan filed Buckley's Motion for Rehearing. Sullivan's Aff. [41-2] at ¶ 29. On October 15, 2013, the Mississippi Court of Appeals denied rehearing and affirmed the trial court's decision. Nov. 7, 2013 Miss. Court of Appeals Mandate [41-15].

         Buckley passed away on March 28, 2015. Pl.'s Answers to Defs.'s 1st Set of Req. for Admis. [28-1] at 2. Joseph Buckley opened an estate proceeding on behalf of Ms. Buckley on August 28, 2015, and was later appointed administrator of the estate. Mot. [37] at 2.

         C. The Present Litigation

         On August 17, 2016, Plaintiff Joseph Buckley, as administrator of the Estate of Ethel Lee Buckley (“Plaintiff”), filed a Complaint in the Circuit Court of Jackson County, Mississippi, against Defendants alleging legal malpractice. Compl. [1-2]. CLF, Mr. Citrin, and Mr. McClurkin removed the case to this Court on October 17, 2016. Not. of Removal [1]. On April 25, 2017, CLF, Mr. Citrin, and Mr. McClurkin filed a Motion [28] for Summary Judgment, contending that the three-year statute of limitations for malpractice actions bars Plaintiff's claims. Defs.' Mem. [29] at 3. Defendants argue that the statute of limitations began to run on November 1, 2012, when Buckley received of a copy of the Mississippi Court of Appeals' opinion, and that there was no requirement under Mississippi law that the underlying action be terminated prior to the statute of limitations commencing. Id.

         On May 1, 2017, Ms. Citrin filed her own Motion [37] for Summary Judgment. Ms. Citrin also takes the position that the statute of limitations bars Plaintiff's claims because the latest possible time for accrual of these claims was no later than November 30, 2012, when Sullivan sent a letter to Mr. Citrin advising of his representation and asking that Mr. Citrin provide information on CLF's liability insurance. Def.'s Mem [38] at 4. Ms. Citrin also asserts that there was ...


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