Joseph P. Donovan v. G. Todd Burwell , 2016 Miss. App. LEXIS 10 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CP-01600-COA
JOSEPH P. DONOVAN APPELLANT
v.
G. TODD BURWELL, INDIVIDUALLY, AND APPELLEES
LATHAM & BURWELL, PLLC
DATE OF JUDGMENT: 09/29/2014
TRIAL JUDGE: HON. FRANK G. VOLLOR
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JOSEPH P. DONOVAN (PRO SE)
ATTORNEY FOR APPELLEES: ALEXANDER FREDERICK GUIDRY
NATURE OF THE CASE: CIVIL - LEGAL MALPRACTICE
TRIAL COURT DISPOSITION: GRANTED SUMMARY JUDGMENT IN
FAVOR OF THE APPELLEES
DISPOSITION: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART - 01/12/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., ISHEE AND WILSON, JJ.
WILSON, J., FOR THE COURT:
¶1. Joseph Donovan sued Todd Burwell and Latham & Burwell PLLC (collectively,
“Burwell”), alleging that Burwell committed malpractice while representing Donovan in
related matters before the Mississippi State Tax Commission (“Tax Commission”) and the
Internal Revenue Service (“IRS”). The circuit court granted summary judgment because it
determined that the statute of limitations had run on any malpractice claim related to the Tax
Commission proceeding and that no malpractice could be shown with respect to the IRS
proceeding. For the reasons discussed below, we reverse as to the Tax Commission
proceeding but affirm as to the IRS proceeding. Accordingly, the case is and remanded for
further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
¶2. From 2000 to 2005, Donovan was a shareholder and officer of two ambulance
companies, EmergyStat Inc. and EmergyStat of Sulligent Inc. In July 2006, the Tax
Commission assessed Donovan over $1 million in unpaid state payroll taxes of EmergyStat
Inc., alleging that Donovan was liable for the taxes as a “responsible person.”1 On October
4, 2006, Donovan formally retained Burwell to contest the assessment. The next day,
Burwell represented Donovan at a hearing before the Tax Commission’s internal Board of
Review.2 On November 15, 2006, the Board of Review entered a written order affirming
Donovan’s liability but reducing the amount owed to $409,838.39.
¶3. Burwell filed an appeal of the Board’s decision to the full Tax Commission on
December 22, 2006.3 However, the deadline to appeal the decision was thirty days after it
1
Under state and federal law, if an employer fails to collect and pay over payroll
taxes, penalties may be assessed against a “responsible person,” which, in broad terms,
means someone who exercises significant authority over the employer’s finances. See
generally Barnett v. IRS, 988 F.2d 1449 (5th Cir. 1993); 26 U.S.C. § 6672(a) (2012); Miss.
Code Ann. § 27-7-307(2) (Rev. 2013).
2
“The Board of Review is composed of employees of the agency appointed to the
Board by the Commissioner to hear matters in a quorum of not less than three.” Akins v.
Miss. Dep’t of Revenue, 70 So. 3d 204, 208 (¶13) (Miss. 2011); see Miss. Code Ann. §§ 27-
77-3 & -5 (Rev. 2010, Supp. 2015).
3
Effective July 1, 2010, the Tax Commission was renamed the Mississippi
Department of Revenue, and decisions of the Board of Review are now appealed to the
independent Mississippi Board of Tax Appeals. See Miss. Code Ann. §§ 27-4-1 to -3 (Rev.
2013).
2
was entered—December 15. The Tax Commission initially rejected the appeal as untimely,
but Burwell was able to persuade the Tax Commission to reinstate the appeal.
¶4. The Tax Commission heard Donovan’s appeal on August 15, 2007, and took the
matter under advisement. On May 20, 2008, the Tax Commission entered an order affirming
the Board of Review. Donovan was unable to post the bond required to perfect his appeal
to chancery court. As a result, his appeal was dismissed, and the Tax Commission’s ruling
was final.
¶5. On August 28, 2007, while the Tax Commission proceeding was pending, the IRS
notified Donovan that it intended to assess nearly $1 million in penalties against him based
on two EmergyStat companies’ failure to pay federal payroll taxes. Burwell agreed to
represent Donovan before the IRS, and he mailed a formal protest letter to the IRS on
October 26, 2007, three days before the applicable 60-day deadline. However, on January
14, 2008, Burwell learned that the IRS had deemed the protest untimely. On January 15,
Burwell sent the IRS a letter challenging the IRS’s determination. Burwell’s letter attached
three affidavits from his employees, each attesting that the protest was timely mailed.
Burwell withdrew from the representation in March 2009 because Donovan was not paying
his bills. Donovan then retained new counsel.
¶6. On February 1, 2010, the IRS Office of Appeals sustained the assessment of taxes
against Donovan because it concluded that his protest was not timely filed. On March 4,
2010, Donovan’s new counsel, Harris Barnes, filed a petition challenging the assessment
with the United States Tax Court. The IRS moved for summary judgment on the ground that
3
Donovan’s protest was untimely. On May 6, 2013, the Tax Court heard argument on the
summary judgment motion. During the hearing, the IRS conceded that the protest was timely
under Treasury Department regulations,4 and the Tax Court remanded the case to the IRS
Office of Appeals. On remand, Barnes eventually successfully persuaded the IRS to dismiss
all assessments against Donovan.
¶7. On January 7, 2011—while the IRS proceeding was ongoing—Donovan filed a
complaint against Burwell in the Hinds County Circuit Court. Donovan alleged that Burwell
committed malpractice in both the Tax Commission and IRS proceedings. Burwell removed
the case to federal court, but the district court remanded the case for lack of subject matter
jurisdiction. Following remand, the circuit court denied a motion to compel arbitration filed
by Burwell, determined that Hinds County was not a proper venue, and transferred the case
to Rankin County at Donovan’s request.
¶8. On November 5, 2013, Burwell moved for summary judgment, arguing that the statute
of limitations barred any malpractice claim related to the Tax Commission proceeding and
that the undisputed facts showed that he committed no malpractice in the IRS proceeding.
As to the statute of limitations, Burwell’s memorandum in support of summary judgment
argued as follows:
The Tax Commission issued its Order upholding its assessment of taxes
against Donovan on November 15, 2006. [Burwell] appealed that order which
the Tax Commission affirmed on August 15, 2007. Therefore, if Donovan
believed he should not have been assessed any taxes but for [Burwell’s]
representation, any claim Donovan had for malpractice . . . accrued at the
earliest of November 15, 2006 and at the latest of August 15, 2007.
4
See 26 C.F.R. § 301.7502-1(c)(1)(iii)(B)(1).
4
Burwell’s argument contained a critical factual error. As discussed above, the first order
referenced was not an order of the full Tax Commission; it was a ruling by the Tax
Commission’s internal Board of Review. More important, the second date that Burwell
referenced—August 15, 2007—is not the date on which the Tax Commission entered its
order. It is the date on which the Tax Commission held a hearing and took the matter under
advisement. The Tax Commission did not enter an order affirming until May 28, 2008.
Burwell’s reply memorandum repeated this error. As we discuss in greater detail below,
Burwell’s mistake was material.
¶9. The circuit judge granted Burwell’s motion for summary judgment. He concluded
that any malpractice claim related to the IRS proceeding failed as a matter of law because the
IRS eventually conceded that Burwell timely filed Donovan’s protest and later dismissed the
federal tax assessment in its entirety. As to the Tax Commission proceeding, the circuit
judge’s order adopted Burwell’s mistake regarding the date of the Tax Commission’s order
and ruled as follows: “The Plaintiff had until October 4, 2009[5] or at the latest August 15,
2010 to bring a malpractice action. His complaint was not filed until January 7, 2011 and is
therefore barred [by the statute of limitations].” After final judgment was entered, Donovan
timely appealed.
ANALYSIS
¶10. We review a trial court’s grant of summary judgment de novo. Evans v. Howell, 121
5
This circuit court’s ruling also mistakenly relied on the date of the Board of Review
hearing (October 5, 2006) rather than the date of its ruling (November 15, 2006). As
discussed below, on appeal Burwell’s sole argument is that the ruling put Donovan on notice
of any malpractice claim, thereby triggering the statute of limitations.
5
So. 3d 919, 922 (¶14) (Miss. Ct. App. 2013) (citing Williamson ex rel. Williamson v. Keith,
786 So. 2d 390, 393 (¶10) (Miss. 2001)). We examine all evidence in the light most
favorable to the non-moving party. Id. However, the non-moving party “may not rest upon
the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise
provided in this rule, must set forth specific facts showing there was a genuine issue for trial.
If he does not so respond, summary judgment . . . will be entered against him.” M.R.C.P.
56(e). When the party opposing summary judgment fails to “‘make a showing sufficient to
establish the existence of an element essential’ to [his] case,” summary judgment is
appropriate. Estate of St. Martin v. Hixon, 145 So. 3d 1124, 1128 (¶7) (Miss. 2014) (quoting
Buckel v. Chaney, 47 So. 3d 148, 153 (¶10) (Miss. 2010)).
I. Tax Commission Representation
¶11. Legal malpractice claims must be brought within three years after the claim accrues.
Miss. Code Ann. § 15-1-49 (Rev. 2012); Channel v. Loyacono, 954 So. 2d 415, 420 (¶13)
(Miss. 2007). Donovan filed his malpractice complaint on January 7, 2011; therefore, if his
claim accrued prior to January 7, 2008, his claim is barred by the statute of limitations.
Burwell argues that Donovan had notice of the alleged malpractice the moment the Board
of Review ruled against him on November 15, 2007. We disagree.
¶12. Mississippi applies the discovery rule for legal malpractice actions. Evans, 121 So.
3d at 923 (¶19) (citing Smith v. Sneed, 638 So. 2d 1252, 1258 (Miss. 1994)). Therefore, “the
statute of limitations begins to run on the date that the client learns or, through the exercise
of reasonable diligence, should learn of his lawyer’s negligence.” Id. The rule “is applied
6
when the facts indicate that ‘it is unrealistic to expect a layman to perceive the injury at the
time of the wrongful act.’” Bennett v. Hill-Boren P.C., 52 So. 3d 364, 369 (¶15) (Miss.
2011) (quoting McCain v. Memphis Hardwood Flooring Co., 725 So. 2d 788, 794 (Miss.
1998) (overruled on other grounds)). In other words, “the discovery rule applies when it
would be impractical to require a layperson to have discovered the malpractice at the time
it happened. This is because requiring a layperson to ascertain legal malpractice at the time
it occurs would necessitate the retention of a second attorney to review the work of the first.”
Bennett, 52 So. 3d at 369 (¶15) (citing Sneed, 638 So. 2d at 1258).
¶13. In Spann v. Diaz, 987 So. 2d 443 (Miss. 2008), the Supreme Court reasoned that the
plaintiff should have known of her potential legal malpractice claim on the date that the
Court denied rehearing in the underlying litigation handled by her attorney. Spann, 987 So.
2d at 449-50 (¶19). In that case, Spann sued Diaz for legal malpractice based on Diaz’s
failure to name a defendant in the underlying medical malpractice case, Dr. Rawson, prior
to the expiration of the applicable statute of limitations. Id. at 445 (¶4); see generally
Rawson v. Jones, 816 So. 2d 367 (Miss. 2001). In the underlying medical malpractice case,
Dr. Rawson appealed from a judgment entered on a jury verdict against him. Spann, 987 So.
2d at 445 (¶5); Rawson, 816 So. 2d at 368 (¶3). The Supreme Court reversed the judgment
against Dr. Rawson based on the statute of limitations, and the “Court explicitly stated
numerous times that Dr. Rawson should have been added [as a defendant] at the outset of the
litigation.” Spann, 987 So. 2d at 449 (¶19); see Rawson, 816 So. 2d at 370 (¶¶9-10).
Ironically, when Spann (the plaintiff in Rawson) then sued Diaz for legal malpractice, Diaz
7
asserted a statute of limitations defense of his own. Spann, 987 So. 2d at 446 (¶7). The
Supreme Court agreed that Spann’s legal malpractice suit was time-barred because the
Supreme Court’s opinion and denial of rehearing were “a matter of public record” and
“explicitly” highlighted Diaz’s error “numerous times.” Id. at 449-50 (¶¶19-20). Therefore,
“Spann knew or reasonably should have known” of her claim on the date that the Supreme
Court denied rehearing in the underlying case. Id. at 450 (¶19).6
¶14. As discussed above, Burwell successfully persuaded the circuit judge that Donovan’s
claim accrued either on the date of the Board of Review’s ruling or “at the latest” on the date
of the full Tax Commission’s ruling. The problem, however, is that Burwell and the circuit
judge were mistaken as to the date of the Tax Commission’s ruling. Donovan filed his
complaint within three years of the Tax Commission’s ruling. Therefore, if it is the Tax
Commission’s ruling that triggered the running of the statute, Donovan’s claim is not time-
barred.
¶15. Apparently having recognized his (and the circuit judge’s) mistake, Burwell has
narrowed his argument on appeal. Now Burwell argues only that Donovan’s malpractice
claim accrued on November 15, 2006, the day the Board of Review upheld its assessment
against Donovan. As Burwell puts it, “If Donovan thought he was not liable but for
6
See also Bennett, 52 So. 3d at 371 (¶22) (In Spann, “[t]his Court found that Spann’s
legal-malpractice suit was time-barred because the legal negligence was a matter of public
record, and in the exercise of reasonable diligence, Spann should have discovered Diaz’s
negligence at the time this Court denied Spann’s motion for rehearing of the decision barring
her suit against Rawson. The Court noted that the Rawson decision specifically stated the
reasons for finding that the statute of limitations had expired and strongly implied that Diaz
had been at fault.” (citation omitted)).
8
[Burwell’s] representation, Donovan knew he had a claim against [Burwell] on November
15, 2006, the moment he ‘lost.’”
¶16. Burwell first represented Donovan regarding his state tax liability on October 5, 2006,
at a hearing before the Tax Board. The Board issued its ruling against Donovan on
November 15, 2006. The ruling read, in its entirety, as follows:
The Review Board, after having been duly petitioned in writing as provided
by the statute, has today heard and carefully considered all the evidence
presented by the taxpayer, as recorded in detail in the Minutes of the Review
Board, and finds as follows:
That the Commissioner’s Transfer Assessment of Withholding Tax in the
amount of $1,115,136.68, to Joseph Donovan, from Emergystat, Inc., account
number XX-XXXXXXX, is reduced to $409,838.39 and upheld and affirmed as
reduced.
Burwell asserts that this brief order was sufficient to put Donovan on notice of any alleged
malpractice claim.
¶17. We cannot accept Burwell’s argument. Instead, we conclude that “it would be
impractical to require a layperson to have discovered” from this order alone that malpractice
had already been committed. Bennett, 52 So. 3d at 369 (¶15). Under the circumstances, to
require him “to ascertain [that] legal malpractice” had already occurred would have
“necessitate[d] the retention of a second attorney to review the work of the first.” Id. Put
simply, we do not believe that it is realistic to expect a layperson to read a summary order
disposing of complex issues of tax law and from it immediately recognize that he has a
malpractice claim. The order of the Board of Review provided no reasons for the decision
and is thus a far cry from the Supreme Court opinion at issue in Spann, which put the client
9
on notice of possible malpractice because it “explicitly stated numerous times” that her claim
failed because of her attorney’s delay. Spann, 987 So. 2d at 449 (¶19). Nothing in the brief
order of the Board of Review provided Donovan with similar notice of possible malpractice.
¶18. We also note that the Board of Review is only an initial stage of review in an
administrative process. “The Board of Review is composed of employees of the agency
appointed to the Board by the Commissioner to hear matters in a quorum of not less than
three.” Akins v. Miss. Dep’t. of Revenue, 70 So. 3d 204, 208 (¶13) (Miss. 2011). Hearings
before the Board are informal. See Miss. Code Ann. § 27-77-5(3) (Supp. 2015). Thus, on
November 15, 2007, all that Donovan had in hand was the summary decision of Tax
Commission employees sustaining taxes assessed by their own agency for reasons that were
not disclosed by the order. We are unable to say that such an order should have put Donovan
on notice of possible malpractice.
¶19. The dissent7 asserts that the Board of Review’s order was sufficient—by itself and as
a matter of law—to put Donovan on notice of attorney malpractice.8 But the dissent does not
say how or why. As we have explained, the Board’s one-sentence order, which we quote in
full above, provided Donovan with no understanding of the reasons for the Board’s ruling
7
The dissenting opinion concurs in part but dissents in relevant part. For ease of
reading, we refer to it here as the dissent.
8
The dissent also argues that the discovery rule does not apply because the Board’s
order was not “secretive or inherently undiscoverable.” Our Supreme Court has held that
the discovery rule tolls the statute of limitations on a legal malpractice claim if the plaintiff
satisfies either of two alternative standards—the “‘secret or inherently undiscoverable’
standard” or the “layman standard.” Evans, 121 So. 3d at 924 (¶22) (quoting Channel, 954
So. 2d at 421 (¶¶19-20)). Donovan argues only that the latter standard applies; therefore,
we do not address the former.
10
and told him nothing more than that the Board had reduced his tax liability by more than
$700,000. The dissent does not discuss the order’s lack of substance. Nor does it explain
what in the order it believes would put a non-lawyer on notice of malpractice. The dissent
simply asserts that the order provided “sufficient notice.” We cannot agree that this one-
sentence notification of a partial loss/partial win at an intermediate stage of an ongoing
administrative appeal provided notice sufficient to put a layman such as Donovan on notice
of possible malpractice by his lawyer.
¶20. We note that the Tax Commission’s subsequent order affirming the Board’s decision
did provide some discussion of the reasons for sustaining the tax assessment. However,
because Donovan’s complaint was filed less than three years after the Tax Commission’s
order, the question whether that ruling was sufficient to put Donovan on notice of
malpractice is irrelevant to the statute of limitations issue.9
¶21. For the foregoing reasons, we reverse and remand the circuit court’s grant of summary
judgment as it relates to Burwell’s representation of Donovan before the Tax Commission.
II. IRS Representation
¶22. Donovan also alleges that Burwell committed malpractice by failing to adhere to the
IRS’s “prescribed methods” for filing Donovan’s formal protest, which caused him to incur
substantial expenses in litigating the timeliness issue. Donovan’s second attorney (Barnes)
also opines that Burwell’s initial factual presentation to the IRS was insufficient, inaccurate,
9
As discussed above, the circuit court considered the issue only because it adopted
Burwell’s mistake as to the date of the full Tax Commission’s ruling. On appeal, Burwell
does not rely on the ruling of the full Tax Commission.
11
and inadequately documented. Barnes essentially claims that he was forced to do additional
work, at Donovan’s expense, that Burwell should have done at the outset of the case.
¶23. “To recover for legal malpractice, the plaintiff must prove by a preponderance of the
evidence the following: ‘(1) Existence of a lawyer-client relationship; (2) Negligence on the
part of the lawyer in handling his client’s affairs entrusted to him; and (3) Proximate cause
of the injury.’” Lancaster v. Stevens, 961 So. 2d 768, 771 (¶8) (Miss. Ct. App. 2007)
(quoting Hickox ex. rel. Hickox v. Holleman, 502 So. 3d 626, 633 (Miss. 1987), superseded
by rule, M.R.E. 702, as recognized in Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31,
36-37 (¶¶8-9) (Miss. 2003)). In order to show proximate cause, “the plaintiff must show that,
‘but for his attorney’s negligence, he would have been successful in the . . . underlying
action.’” Id. In a negligence-based legal malpractice claim, “proof of success in the
underlying case is an appropriate test” because “it ensures that attorneys are only held
professionally liable where their failures to adhere to the standard of care actually impacted
the plaintiff’s interests in the case.” Crist v. Loyacono, 65 So. 3d 837, 843 (¶16) (Miss.
2011).
¶24. Donovan’s IRS-related malpractice claim fails because, regardless of how it is framed,
he fails to raise a genuine issue of fact as to each essential element of his claim. With respect
to Burwell’s filing of the protest, the IRS eventually conceded that it was timely filed
according to the terms of its own regulation. See 26 C.F.R. § 301.7502-1(c)(1)(iii)(B)(1).
Though Donovan undoubtedly incurred costs litigating the timeliness issue, the only
negligence was committed by the IRS, not Burwell. Accordingly, Donovan failed to create
12
a genuine issue of material fact as to the second essential element of his malpractice claim.
Lancaster, 961 So. 2d at 771 (¶8).
¶25. With respect to the claim that Burwell committed malpractice by failing to sufficiently
and accurately develop the factual basis of Donovan’s position, proof of a different essential
element is lacking, even with support from Barnes’s affidavit. Donovan eventually
persuaded the IRS to dismiss all assessments against him. Accordingly, it is clear that he did
not incur any federal tax liability as a result of Burwell’s allegedly negligent case
development. And while there is some evidence to support a claim that Donovan had to pay
Barnes to do work that (Barnes says) Burwell should have done at the outset of the case,
there is no evidence that Donovan incurred more legal fees as a result of the alleged
negligence. At best, there is an inference that he paid some amount of fees to Barnes rather
than to Burwell. Accordingly, as to this version of his IRS-related malpractice claim,
Donovan cannot demonstrate any injury proximately caused by the alleged negligence. Id.
¶26. In short, Donovan presented two versions of his IRS-related malpractice claim.
However, each version failed to create a genuine issue of material fact as to one essential
element of the claim. Accordingly, we affirm the circuit court’s order granting summary
judgment as it relates to any claim of malpractice in connection with Burwell’s representation
of Donovan before the IRS.
CONCLUSION
¶27. Under the discovery rule applicable to legal malpractice claims, the Board of
Review’s November 2007 order did not trigger the statute of limitations. Therefore,
13
Donovan’s claim of malpractice based on Burwell’s representation of him before the
Mississippi State Tax Commission is not barred by the statute of limitations, and we reverse
and remand as to that claim. However, Donovan’s theories of malpractice in connection with
the IRS proceeding fail for lack of proof of negligence or proximate causation. Accordingly,
we affirm the circuit court’s grant of summary judgment as to the IRS representation.
¶28. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS
OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-
HALF TO THE APPELLEES.
IRVING, P.J., BARNES, ISHEE AND FAIR, JJ., CONCUR. CARLTON, J.,
CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
OPINION, JOINED BY LEE, C.J., AND GRIFFIS, P.J. JAMES, J., NOT
PARTICIPATING.
CARLTON, J., CONCURRING IN PART AND DISSENTING IN PART:
¶29. I respectfully dissent in part and concur in part. I would affirm the trial court’s grant
of summary judgment in favor of Burwell as to both malpractice claims asserted by Donovan.
Thus, I join the majority in affirming the trial court’s grant of summary judgment as to the
legal-malpractice claims involving the IRS proceeding. The majority, however, finds that
Donovan’s claims against Burwell for legal malpractice in the Tax Commission proceeding
were not barred by the statute of limitations. I disagree, and I therefore dissent in part. In
applying the law to the facts of this case, I find that Donovan’s legal-malpractice claim
against Burwell, regarding his representation in the Tax Commission proceedings, is barred
by the expiration of the applicable statute of limitations.10
10
See Miss. Code Ann. § 15-1-49 (Rev. 2012) (“All actions for which no other period
of limitation is prescribed shall be commenced within three (3) years next after the cause of
14
¶30. The statute of limitations for a legal-malpractice claim “begins to run on the date that
the client learns or, through the exercise of reasonable diligence, should learn of his lawyer's
negligence.” Evans v. Howell, 121 So. 3d 919, 923 (¶19) (Miss. Ct. App. 2013). The
discovery rule, which tolls the statute of limitations in legal-malpractice cases, applies when
“the plaintiff will be precluded from discovering harm or injury because of the secretive or
inherently undiscoverable nature of the wrongdoing in question, or it may be applied when
it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.”
Channel v. Loyacono, 954 So. 2d 415, 421 (¶19) (Miss. 2007) (internal quotations omitted).
The claim of legal malpractice in this case does not arise from “secretive or inherently
undiscoverable” evidence, nor is it unrealistic for Donovan, as a “layman,” to perceive the
injury at the time of the adverse ruling. See Evans, 121 So. 3d at 924 (¶22); Channel, 954
So. 2d at 421 (¶¶19-20). I submit that Donovan reasonably should have perceived the injury
at the time the November 15, 2006 adverse ruling was issued by a public body. See generally
Miss. Code Ann. § 27-77-5 (Supp. 2015).11
¶31. Here, Donovan was on notice of the adverse decision and resulting harm of the order
such action accrued, and not after.”).
11
For a discussion of tax-assessment appeals, see Donald Campbell, Jeffrey Jackson
& Mary Miller, 8 Encyclopedia of Mississippi Law § 70:46 (2015), providing:
A taxpayer who disagrees with an assessment made by the Commissioner may
apply for an administrative hearing before the board of review. The board of
review is composed of three employees of the State Tax Commission
appointed by the Commissioner. . . . After reaching a decision, the board of
review must notify the taxpayer of its determination [as required by section
27-77-5(3)].
15
issued by the Tax Commission’s internal Board of Review on November 15, 2006, wherein
the Board affirmed Donovan’s liability and reduced the amount owed to $409,838.39. As
stated, legal-malpractice claims accrue when the client perceives the injury, or reasonably
should have perceived it, at the time of the negligent act.12 Legal-malpractice claims must
be brought within three years after the claim accrues. In this case, Donovan’s legal-
malpractice claim against Burwell for representation in the Tax Commission proceedings
accrued on November 15, 2006, the date the Tax Commission Board of Review issued its
adverse written order. See generally Miss. Code Ann. § 27-77-5(3) (Board of Review
notifies the taxpayer of its findings by mailing a copy of its order to the taxpayer).
Accordingly, the statute of limitations began to run on November 15, 2006, and expired on
November 15, 2009. Since Donovan filed his legal-malpractice claim against Burwell for
the Tax Commission representation on January 7, 2011, well over a year after expiration of
the statute of limitations, then I submit that we must affirm the trial court’s grant of summary
judgment on that basis. See Evans, 121 So. 3d at 925 (¶¶28-30) (finding the cause of action
accrued when the client signed the agreement and the terms were on the face of the
agreement).
¶32. In the case of Channel, 954 So. 2d at 421 (¶¶19-20), the Mississippi Supreme Court
held that a legal-malpractice cause of action accrued, and the statute of limitations began to
run, when the lawyers presented their clients with settlement offers, and not on a later date,
12
See Stephens v. Equitable Life Assur. Soc'y of U.S., 850 So. 2d 78, 83 (¶16) (Miss.
2003); see generally Archer v. Nissan Motor Acceptance Corp., 633 F. Supp. 2d 259, 262
(S.D. Miss. 2007).
16
when the clients were advised of legal-malpractice claims. The Channel court explained that
the discovery rule does not toll the statute of limitations unless the harm or injury was
secretive or inherently undiscoverable, such as when physical evidence is undiscoverable,
“or it may be applied when it is unrealistic to expect a layman to perceive the injury at the
time of the wrongful act.” Id.13 See also Stephens, 850 So. 2d at 83 (¶16) (statute of
limitations began to run when plaintiff signed contract); Archer, 633 F. Supp. 2d at 269 (The
terms “were apparent on the face of the loan documents and with due diligence each could
have easily determined that they had not been offered the ‘best’ rate”; as a result, “[n]either
the discovery rule nor the doctrine of fraudulent concealment tolled the statute of
limitations.”). Since the clients in Channel were presented with the settlement offers, they
were able to see the terms of the settlement agreement. As a result, the cause of action in
Channel accrued because the clients knew or reasonably should have known the terms of the
settlement and any harm resulting therefrom. Channel, 954 So. 2d at 422 (¶¶22-23); see also
Evans, 121 So. 3d at 924 (¶22).
¶33. After reviewing the record, I find that it reflects that the adverse ruling issued by the
Tax Commission Board of Review on November 15, 2006, was not secretive or inherently
undiscoverable. Additionally, I submit that the evidence shows that the adverse ruling
13
The application of the discovery rule to toll those claims where the negligence is
secretive or inherently undiscoverable, or where “it would be impractical to require a
layperson to have discovered the malpractice at the time it happened[,]” is addressed
specifically in Evans, 121 So. 3d at 923 (¶19).
17
provided Donovan, as a “layman,” with sufficient notice of his claim for legal malpractice.3
I therefore dissent in part and concur in part.
LEE, C.J., AND GRIFFIS, P.J., JOIN THIS OPINION.
3
Under controlling precedent, a cause of action accrues for legal malpractice when
a client learns, or through the exercise of reasonable diligence should learn, of his lawyer’s
negligence. Evans, 121 So. 3d at 923 (¶19); Channel, 954 So. 2d at 421 (¶¶19-20).
18