United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS' MOTION  FOR SUMMARY
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
THE COURT is the Motion  for Summary Judgment filed by
Defendants Thomas M. Matthews, III and Matthews &
Matthews, PLLC (“Matthews”). In this case,
Plaintiff Aimee McReynolds (“McReynolds”) brings
a legal malpractice claim against Matthews relating to the
administration of the Estate of Jack Dick, Deceased,
Cause No. 2013-0065-PR-G, in the Chancery Court of Pearl
River County, Mississippi. McReynolds was the sole
beneficiary under the decedent Jack Dick's handwritten
Will. Shortly after Dick passed away, McReynolds retained
Matthews in April 2013 to probate Dick's Will. McReynolds
claims that Matthews failed to administer the Estate in a
timely and proper manner, causing her to suffer monetary
now moves for summary judgment on several of McReynolds'
claims of negligence, breach of fiduciary duty, and damages.
The Motion has been fully briefed. For the reasons that
follow, the Court finds that the Motion should be granted as
to McReynolds': (1) breach of the standard of conduct
claims; (2) claim for damages in attorneys' fees paid to
the Law Office of B. Ruth Johnson in the underlying Estate
proceedings; and (3) claim for punitive damages. These claims
will be dismissed.
Court finds that the Motion should be denied as to
McReynolds': (1) breach of the standard of care claim
that Matthews' alleged negligence caused the Will
contests by Dick's half-siblings to not be time-barred;
(2) breach of the standard of care claim that Matthews'
negligence caused her to be removed as Administratrix; (3)
breach of the standard of care claim for lost income caused
by liquidation of Dick's investments; (4) breach of the
standard of care claim that Matthews caused Dick's Estate
to incur higher taxes by declaring Dick a Mississippi
resident; and (5) breach of the standard of care claim that
Matthews caused penalties to be incurred for filing the
Estate's tax returns late. These claims will proceed to
McReynolds Meets and Befriends Jack Dick
December 2008, 80-year-old Jack Dick met McReynolds at an
establishment known as Arety's Angels in Pensacola,
Florida, where McReynolds worked as a waitress at the time.
Mar. 28, 2016 Pl. Dep. [120-1] at 25. The two became friends;
according to McReynolds, they loved each other “like
family.” May 23, 2017 Pl. Dep. [128-1] at 169-70. In
August 2009, Dick began renting a room from McReynolds at her
home in Pensacola. In exchange, Dick paid McReynolds'
mortgage. Id. at 23, 46. Up until March 2013, Dick
would stay overnight in his bedroom at McReynolds' home
for seven to fourteen days each month. Id. at 23-24.
Dick spent the remainder of his time at his property in Pearl
River County, Mississippi. Id.; Hearing Tr. [120-3]
in 2009, Dick gave McReynolds spending money in the amount of
“$100 on occasion.” Mar. 28, 2016 Pl. Dep.
[128-18] at 148. Before Dick died, he was supplying
McReynolds with $500 a week. On June 28, 2012, Dick executed
an entirely handwritten, “holographic” Will
naming McReynolds his sole beneficiary. Dick's Will
[120-5]. This Will listed Dick's property, including a
“brokerage account” of “two million”
dollars. Id. Dick passed away on March 31, 2013.
Death Certificate [120-2].
McReynolds Hires Matthews to Probate Mr. Dick's
April 3, 2013, McReynolds retained Matthews to probate the
Will for a flat fee of $10, 000.00. May 23, 2017 Pl. Dep.
[128-1] at 23, 82. That same day, Matthews filed a Petition
to Probate the Last Will and Testament of Jack W. Dick, CTA,
the Chancery Court of Pearl River County, Mississippi, and
the Chancery Clerk recorded the original Will in the Will
Book. Pet. for Probate [120-6]. The Chancellor apparently did
not grant the original petition, so Matthews filed an Amended
Petition. See Am. Pet. for Probate [128-6]. The
Amended Petition stated that Dick was a Mississippi resident
when he died “on the 31st day of March, 2013 or April
1, 2013.” Id. at 1. The Amended Petition
sought an order from the court authorizing liquidation of
Dick's financial accounts and placement of the funds into
the court's registry. Id. at 2.
April 9, 2013, the Chancery Court entered its Judgment
appointing McReynolds as Administratrix. April 9, 2013
Judgment [128-7]. The Judgment directed McReynolds to retain
an appraiser and file all necessary inventories, appraisals,
and final accounts as required by state law. Id. at
2. In lieu of McReynolds filing an additional bond, the court
ordered the liquidation of Dick's financial accounts to
be deposited into the court's registry. Id. The
Judgment did not state that Dick's Will was probated nor
did it include the word “probate.” Id.
April 9, 2013, Matthews became aware of Charles Dick, Jack
Dick's half-brother, and that he possibly would contest
Dick's Will. Def. Dep. [128-4] at 69. As part of an
attempt to determine if Charles would challenge the Will,
Matthews told Charles that Dick's estate was worth in
excess of $2 million. Id. at 72.
McReynolds Terminates Matthews
contends that after October 2013, she had minimal
communication with Matthews despite her numerous attempts to
contact him. Pl. Aff. [128-8] at ¶ 4. According to
McReynolds, she emailed Matthews monthly from August 2014 to
February 2015. Id. McReynolds also testified that
she called Matthews but could never reach him. May 23, 2017
Pl. Dep. [128-1] at 116. McReynolds stated that she had
“six or seven different phones in the course of four
years, ” but lived at the same address and had the same
e-mail address during the time Matthews represented her.
Id. at 118; Pl. Aff. [128-8] at ¶ 4.
March 3, 2015, McReynolds sent a letter to Matthews,
terminating his services effective immediately, and
indicating her new representation by the law firm of
Copeland, Cook, Taylor & Bush, P.A.
(“Copeland”). Letter [120-13]. On April 10, 2015,
Copeland, on behalf of McReynolds, filed in the Chancery
Court a Petition to Admit Will to Probate Nunc Pro Tunc to
April 9, 2013. Pet. [128-14]. The Petition took the position
that “[t]hrough error and/or oversight, the Judgment
entered on April 9, 2013, does not formally admit to probate
the holographic” Will. Id. at 1. McReynolds
suggested that the Will “was, in fact, admitted to
probate on April 9, 2013, but the Judgment simply mistakenly
neglected to state so.” Id. at 2. The Petition
sought from the Chancery Court a decree that the Will
“was in fact admitted to probate” on April 9,
2013, and “that the two-year statute of limitations for
any contests of the [Will] shall have begun to run on April
9, 2013[.]” Id.
April 13, 2015, the Chancery Court entered a Decree Admitting
Will to Probate Nunc Pro Tunc to April 9, 2013. Decree
[128-15]. The Chancery Court found that the Will “was,
in fact, admitted to probate on April 9, 2013, but that the
Judgment simply mistakenly neglected to state so.”
Id. at 2. The Decree ordered that the Will be
admitted to probate effective April 9, 2013, and that the
two-year statute of limitations for any contests to the Will
began to run on April 9, 2013. Id.
week later, on April 20, 2015, McReynolds petitioned the
court for a $100, 000.00 loan from the Estate. Pet. to Borrow
Funds [128-17]. McReynolds asserted that “[d]ue to
health problems, [she] has not worked since mid-2014, and she
is currently falling behind on many of her personal bills and
expenses, ” including owing $70, 164.45 on her
mortgage, “which amount must be paid on or before May
5, 2015, in order to avoid foreclosure.” Id.
at 2. At a hearing held on April 21, 2015, the Chancery Court
denied the Petition to Borrow Funds. See Letter to
Chancery Ct. [120-38] at 1.
The Chancery Court Removes McReynolds as Administratrix
and Probates the Will in Solemn Form
7, 2015, the Chancery Court held another hearing with
McReynolds. Hearing Tr. [128-11] at 1-2. The court stated:
“Let me tell you why you-all are here. The Court will
sua sponte, on its own, set aside its orders validating the
holographic will.” Id. at 2. The court noted
that under Mississippi law, an inventory must be prepared and
filed within ninety days of the grant of letters of
administration appointing an estate's administrator.
Id. at 2-3. The Chancery Court inquired of
McReynolds whether she had prepared an inventory, and
McReynolds replied, “I was not informed that I was
supposed to prepare one.” Id. at 6.
court observed that the “petition indicated that Mr.
Dick departed this life on the 31st day of March 2013 or
April 1st, 2013.” Id. at 3. The court asked
for a copy of the death certificate to verify Dick's date
of death, but neither McReynolds nor her counsel had one.
Id. at 3-4. The court next noted that the Will was
notarized on June 28, 2012, but was not prepared until one
day later on June 29, 2012. Id. at 5. The court
stated that “though holographic wills are not required
to be dated, when one is in fact dated, the Court has to take
notice of it.” Id.
court asked of McReynolds whether she had complied with the
April 9, 2013 Judgment, including the order to retain the
services of an appraiser. Id. at 7. McReynolds
responded, “Actually, ma'am, Mr. Matthews told me
he would do it. I asked him if I were to do it and he said he
would handle it and get the appraisal done.”
Id. The Chancery Court told McReynolds that she
“failed to comply with the order of this Court, ”
and “will be immediately removed and replaced[.]”
Id. The court ordered the Will to be probated in
solemn form and for “a notice sent out for any and all
heirs at law known and unknown, [as] that process was never
completed.” Id. at 10.
Chancery Court set aside “any decrees entered by this
Court admitting this will to probate; namely, the order dated
April 13, 2015, ” and the “decree validating
holographic last will and testament of Jack Dick[.]”
Id. at 11. The court did so based on the court's
“in-camera review” of the record prior to the
hearing and because the Will “is dated June 29, 2012;
however, it is executed a day prior to its preparation, so
the Court has concerns as to the validity of it.”
Id. at 11.
15, 2015, the Chancery Court entered an Order that
incorporated its rulings at the May 7, 2015 hearing. Order
[128-10]. The Order noted that “to date, no
inventories, appraisals, or accounts have been filed in this
Estate proceeding, and no funds relating to this case have
been tendered into the Court Registry.” Id. at
2. The Court expressed its “concerns regarding, inter
alia, the fact that the exact date of death of Jack W. Dick
is unknown” and that the Will “is dated
‘June 29, 2012' on top of the first page, but the
attestation by the notary public on the second page is dated
‘June 28, 2012.'” Id. The Chancery
Court Order: (1) set aside the decrees admitting the Will to
probate and validating the Will; (2) probated the Will in
solemn form; and (3) removed McReynolds as Administratrix.
Id. at 3.
McReynolds Hires New Counsel and Defends against the Will
McReynolds was removed as administratrix, Copeland advised
her that she needed to hire another attorney. Pl. Aff.
[128-8] ¶ 21. On October 9, 2015, McReynolds retained
her present counsel, the Law Office of B. Ruth Johnson
(“Johnson”), on a contingent fee basis and signed
a 1% contingency fee agreement. Fee Agreements [120-23] at 1.
On October 13, 2015, Mr. Dick's two half-siblings
initiated a contest to the Will. Resp. to Pet. to Probate
Will [120-22]. McReynolds subsequently amended her
contingency fee agreement with Johnson, increasing the fee
three times: first, to 15% on October 20, 2015; second, to
25% on March 28, 2016; and finally third, to 33 1/3% on May
31, 2016. Fee Agreements [120-23].
11, 2016, McReynolds settled the will contest for $85,
000.00. Settlement Statement [120-24]; Chancery Ct. Docket
[128-13] at 8. McReynolds paid Johnson over $800, 000.00 to
defend the will contest and represent her in the Estate
proceedings. Hines Report [120-25] at 14. On July 19, 2016,
the Chancery Court entered a Decree Closing Estate, and on
August 1, 2016, McReynolds received the remaining funds held
in the court's registry. Chancery Ct. Docket [128-13] at
9; Pl. Aff. [128-8] ¶ 28.
April 8, 2016, McReynolds filed a Complaint alleging legal
malpractice against Matthews in the Circuit Court of Pearl
River County, Mississippi. Compl. [1-1]. Matthews was not
served until July 28, 2016. Not. of Removal  at 3.
Matthews removed the case to this Court on the basis of
diversity jurisdiction on August 26, 2016. Id. at
January 9, 2017, McReynolds filed an Amended Complaint. Am.
Compl. . Central allegations include that “[f]rom
October 23, 2013 through March 16, 2015, Matthews failed to
communicate with McReynolds, filed no pleadings on behalf of
McReynolds, and took no action toward concluding the probate
of Dick's Will.” Id. at 4. McReynolds
advanced claims of breach of fiduciary duty and negligence.
Regarding her negligence claim, McReynolds alleged that
Matthews negligently: (1) failed to have Dick's tax
returns timely filed, which caused the Estate to incur
penalties; (2) had the income earning account of Dick
liquidated and deposited into a non-income earning account,
which caused Dick's estate to forego “a substantial
amount of income and dividends from June 16, 2015 through
closing of the Estate;” and (3) failed to probate
Dick's Will in common form, and but for this act, the
contest of Dick's half-siblings would be time-barred and
McReynolds would not have incurred attorneys' fees to
represent her interest in the Estate. Id. at 10-12.
breach of fiduciary duty claim asserts that Matthews breached
this duty by failing “to have Dick's state and
federal tax returns timely filed and to timely pay the state
and federal taxes owed by Dick, ” which caused the
Estate to “incur penalties and interest expenses,
” and by “[h]aving the income earning account of
Jack W. Dick liquidated and deposited into a non-income
earning account creating unnecessary tax consequences and
foregoing substantial income and dividend earnings.”
Id. at 8-9. The Amended Complaint seeks compensatory
and punitive damages. Id. at 12.
April 10, 2017, McReynolds timely designated two experts,
Robert E. Williford, Esq. (“Williford”), and
Joseph E. Hines, CPA, MAFF, CFF (“Hines), and submitted
their reports. Designation of Expert Witnesses [126-5] at 1.
Williford was designated as an expert on “the legal,
ethical and fiduciary duties of an attorney in the
administration of estates, ” id. at 4, while
Hines was tendered to offer expert testimony in the fields of
accounting and financial analysis, see Id. at 28,
59. Williford's timely April 10, 2017 report
(“First Report”) opined as to Matthews'
duties and breaches, id. at 7-20, and took the