McReynolds v. Matthews et al

Filing 143

ORDER granting in part and denying in part 120 Motion for Summary Judgment. Signed by District Judge Halil S. Ozerden on 1/3/2018. (JD)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
AIMEE MCREYNOLDS
v.

PLAINTIFF
CIVIL NO. 1:16-CV-318-HSO-MTP

THOMAS M. MATTHEWS, III,
MATTHEWS & MATTHEWS, PLLC,
AND JOHN AND JANE DOES 1-5

DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION [120] FOR SUMMARY
JUDGMENT
BEFORE THE COURT is the Motion [120] 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 damages.
Matthews 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.
The 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 trial.
I. BACKGROUND
A.

Factual Background
1.

McReynolds Meets and Befriends Jack Dick

In 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’

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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] at 20-21.
Starting 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].
2.

McReynolds Hires Matthews to Probate Mr. Dick’s Will

On 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,1 in 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

An administrator c.t.a. or “cum testament annexo” is “[a]n administrator appointed by the
court to carry out the provisions of a will when the testator has named no executor. . . .” Black’s Law
Dictionary 49 (8th ed. 2004).

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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.
On 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. at
1-2.
On April 9, 2013, Matthews became aware of Charles Dick, Jack Dick’s halfbrother, 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.
3.

McReynolds Terminates Matthews

McReynolds 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

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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.
On 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.
On 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.
One 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

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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.
4.

The Chancery Court Removes McReynolds as Administratrix and
Probates the Will in Solemn Form

On May 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.
The 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.
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The 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.
The 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.
On May 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

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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.
5.

McReynolds Hires New Counsel and Defends against the Will Contests

After 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].
On July 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.

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B.

Procedural History
1.

McReynolds’ Complaint

On 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 [1] at 3.
Matthews removed the case to this Court on the basis of diversity jurisdiction on
August 26, 2016. Id. at 1-2.
On January 9, 2017, McReynolds filed an Amended Complaint. Am. Compl.
[14]. 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 1012.

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McReynolds’ 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.
2.

McReynolds’ Experts

On 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 position that had the
Estate been properly opened and administered, the later challenges to the Will
would have been barred by the applicable two-year statute of limitations, id. at 7.
On June 15, 2017, Matthews identified Lawrence Gunn, Esq. (“Gunn”) as an
expert. Suppl. Answers to Pl.’s First Set of Interrogs. [117-2] at 2-3. Matthews
advised that “Gunn is expected to testify the fees and expenses paid by McReynolds

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to the Law Office of B. Ruth Johnson, PLLC were excessive and unreasonable.” Id.
at 6. On June 30, 2017, McReynolds disclosed to Matthews a Supplement to Report
of Williford (“Second Report”). Williford Suppl. to Rep. [117-3]. After Williford’s
Second Report noted that Matthews expected Gunn to testify that McReynolds’
attorneys’ fees were unreasonable, it then offered a countering opinion, for the first
time, that McReynolds’ attorneys’ fees were reasonable. Id. at 2.
On July 10, 2017, Matthews formally designated Gunn and disclosed his
report, in which Gunn stated that “the amount of fees Ms. McReynolds paid to the
Law Office of Ruth B. Johnson was unreasonable.” Gunn Report [117-2] at 6. On
July 20, 2017, McReynolds designated John G. Corlew, Esq. (“Corlew”) as a rebuttal
expert and submitted his “Rule 26(a)(2) Report.” Designation of Expert Rebuttal
Witness [126-9] at 1. McReynolds retained Corlew to address Gunn’s opinions
regarding the reasonableness of her attorneys’ fees. Id. at 3. Corlew asserted in his
report that “those fees were reasonable.” Id.
Matthews moved to strike the proffered testimony of Corlew and the opinions
contained in Williford’s Second Report, Mot. [117] at 1, arguing that Corlew’s
designation and Williford’s Second Report occurred beyond the deadlines
established by the Case Management Order, Defs.’ Mem. [118] at 5. Matthews
contended that it was McReynolds’ burden to prove the reasonableness of attorneys’
fees as an essential element of her damages claim; therefore, McReynolds could not
fill in the missing gaps in Williford’s timely First Report by untimely designating
Corlew or improperly supplementing Williford’s report. Id. at 7-9.

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In an Order [140] entered on November 20, 2017, this Court found that
“under Mississippi law, a showing of reasonableness is an essential element of
McReynolds’ damages claim for attorneys’ fees, but her experts failed to put forth
any evidence of the reasonableness of those fees by her expert designation
deadline.” Order [140] at 10. Accordingly, “Corlew is not a proper rebuttal witness
and his late designation violates the Case Management Order[.]” Id. With regard
to Williford’s opinions on the matter, because his timely First Report did not contain
any opinion or reference as to the reasonableness of these fees, “Williford’s Second
Report as to the reasonableness of attorneys’ fees cannot be viewed as a valid or
proper supplement[.]” Id. at 11-12. The Court struck Corlew’s testimony and
Williford’s Second Report as to the reasonableness of attorneys’ fees, given the
particular circumstances and posture of the case. Id. at 15.
3.

Matthews’ Motion for Summary Judgment
a.

Matthews’ Arguments

Matthews now moves for summary judgment on many of McReynolds’ claims.
Mot. [120] at 1. According to Matthews, the Chancery Court had no authority to set
aside the probate of Dick’s Will, and because McReynolds failed to appeal that
decision, Matthews cannot be responsible for any resulting damages. Defs.’ Mem.
[122] at 14. Even if the Chancery Court did possess such authority, Matthews
contends that it would be impermissible to review that decision. Further, Matthews
claims that there is no admissible evidence that the Chancellor set aside the
probate because of Matthews’ conduct. Id. at 16-17.

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Matthews maintains that the proximate cause of any alleged loss of income
and dividends from liquidating Dick’s investment account cannot be attributed to
him because McReynolds’ Amended Complaint claims such damages began accruing
on June 16, 2015, but Matthews was terminated on March 3, 2015. Id. at 17.
Matthews seeks dismissal of McReynolds’ claim that Matthews negligently
designated Dick as a Mississippi resident for tax purposes because McReynolds
represented in open court that Dick was a Mississippi resident. Id. at 18.
Matthews also seeks dismissal of McReynolds’ claim that Matthews failed to timely
file the Estate’s tax returns because there is no evidence that Matthews did not
meet the applicable standard of care concerning the timing of filing the returns. Id.
Matthews requests summary judgment on McReynolds’ breach of fiduciary
duty claims for Matthews designating Dick as a Mississippi resident, liquidating
Dick’s investments, and telling Dick’s half-brother of the existence and value of
Dick’s Estate. Id. at 20-21. Matthews argues that these are merely negligence
claims masquerading as breach of fiduciary duty claims and McReynolds cannot
show that these alleged fiduciary breaches caused her any damages. Id.
Matthews also moves for summary judgment on two of McReynolds’ damages
claims. Matthews first contends that McReynolds cannot present any admissible
evidence that the attorneys’ fees and expenses paid to Johnson incurred in the
Estate proceedings were reasonable and thus summary judgment is proper as to
those claimed damages. Id. at 9-11. Next, Matthews asserts that McReynolds

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cannot prevail on her punitive damages claim as there is no evidence that Matthews
acted with malice, reckless disregard, or gross neglect. Id. at 22.
b.

McReynolds’ Response

In response to Matthews’ argument that the Chancery Court had no
authority to set aside the probate of the Will, McReynolds notes Williford’s opinion
that a Chancellor “can pretty much do whatever they want when they’re on the
bench.” Pl.’s Mem. [129] at 23. McReynolds also points out that Matthews failed to
cite any authority requiring her to appeal the Chancellor’s May 15, 2015 Order, and
Matthews has not filed a cross-claim against Copeland for its alleged neglect in not
seeking appellate review. Id. at 22. Assuming the Chancery Court did have
authority to set aside the probate, McReynolds takes the position that she carries no
burden to show that Matthews’ negligence caused the Chancellor to enter the May
15, 2015 Order. Rather, but for Matthews’ failure to properly probate the Will in
the first place, there would have been no need for the nunc pro tunc decree entered
on April 13, 2015, and the May 15, 2015 Order setting aside that decree would not
have been entered. Id. at 25.
Regarding her claim for lost income and dividends allegedly caused by
Matthews liquidating Dick’s investments, McReynolds now takes the position that
Dick’s investment account would have earned interest and dividends from February
11, 2015, through August 1, 2016, and not from June 16, 2015, through closing of
the Estate, as alleged in the Amended Complaint. Id. at 26. To support her claim
that Matthews negligently declared Dick a Mississippi resident for tax purposes,

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McReynolds contends that soon after she retained Matthews, she provided
Matthews with Dick’s brokerage statement and previous tax returns in which Dick
declared himself a Florida resident. Id. at 29. McReynolds also points to Williford’s
testimony that Matthews breached his duty to advise McReynolds regarding the
necessity of timely filing Dick’s tax returns. Id. at 27. With respect to her breach of
fiduciary duty claim related to Matthews’ communications with Charles Dick,
McReynolds contends that there is no evidence that Charles Dick was aware of the
size of Dick’s estate before Matthews disclosed that information to him. Id. at 30.
McReynolds maintains that reasonableness of the attorneys’ fees is not an
element she must prove, but in any event, she can rebut Matthews’ position that the
fees were unreasonable through her experts’ testimony. Id. at 18-19. Lastly,
McReynolds asserts that punitive damages are proper because for more than two
years, Matthews failed to conclude Dick’s Estate despite repeated pleas by
McReynolds for seven months when she was in need of the funds. Id. at 33.
II. DISCUSSION
A.

Legal Standard
“Summary judgment is appropriate when there is no genuine issue as to any

material fact, and the moving party is entitled to judgment as a matter of law.” Cox
v. Wal-Mart Stores E, L.P., 755 F.3d 231, 233 (5th Cir. 2014); see Fed. R. Civ. P.
56(a). In deciding a motion for summary judgment, a court “view[s] the evidence
and draw[s] reasonable inferences in the light most favorable to the nonmoving
party.” Hemphill v. State Farm Mut. Auto. Ins. Co., 805 F.3d 535, 538 (5th Cir.

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2015) (quoting Cox, 755 F.3d at 233); Maddox v. Townsend & Sons, Inc., 639 F.3d
214, 216 (5th Cir. 2011). Before it can determine that there is no genuine issue for
trial, a court must be satisfied that “the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If the movant carries this burden,
“the nonmovant must go beyond the pleadings and designate specific facts showing
that there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc); see also Lujan v. National Wildlife Federation, 497
U.S. 871, 888 (1990) (the nonmovant must set forth specific facts to contradict the
specific facts set forth by the movant, general averments are not sufficient).
To rebut a properly supported motion for summary judgment, the opposing
party must show, with “significant probative evidence,” that there exists a genuine
issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir.
2000). “A genuine dispute of material fact means that evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Royal v. CCC&R
Tres Arboles, LLC, 736 F.3d 396, 400 (5th Cir. 2013) (quotation omitted). An actual
controversy exists “when both parties have submitted evidence of contradictory
facts.” Salazar-Limon v. Houston, 826 F.3d 272, 277 (5th Cir. 2016) (quotation
omitted).

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B.

Analysis
1.

McReynolds’ Standard of Care/Negligence Claims

Mississippi recognizes two types of legal malpractice claims – one “based on
negligence (sometimes called a breach of the standard of care) and those based on
breach of fiduciary duty (sometimes called a breach of the standard of conduct).”
Crist v. Loyacono, 65 So. 3d 837, 842 (Miss. 2011) (citations omitted). “To recover
under the negligence theory of legal malpractice, the client must prove the existence
of an attorney-client relationship, the acts constituting negligence, that the
negligence proximately caused the injury, and the fact and extent of the injury.”
Lane v. Oustalet, 873 So. 2d 92, 98-99 (Miss. 2004) (citations omitted). “[A] plaintiff
in a negligence-based malpractice action must establish proximate cause by the socalled ‘trial-within-a-trial’ test. That is to say, the client ‘must show that, but for
[her] attorney’s negligence, [s]he would have been successful in the prosecution or
defense of the underlying action.’” Crist, 65 So. 3d at 842 (quoting Wilbourn v.
Stennett, Wilkinson & Ward, 687 So. 2d 1205, 1215 (Miss. 1996)).
a.

Matthews’ Liability for the Chancery Court Setting Aside the
Probate of the Will

Matthews argues that he is entitled to summary judgment on any claim that
he proximately caused the effects of the Chancery Court setting aside the probate,
including McReynolds being removed as Administratrix, the Will contests not being
time-barred, and the attorneys’ fees incurred to represent McReynolds’ interest in
the Estate. Defs.’ Mem. [122] at 11. Matthews presents two main positions on this
issue. Matthews first argues that McReynolds cannot present any evidence that the
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Chancery Court had the authority to set aside the probate, such that the burden fell
upon McReynolds to appeal the Chancery Court decision if she was aggrieved by it.
Since she did not, Matthews cannot be responsible for any alleged resulting
damages. Id. at 14.
A chancery court’s jurisdiction is established by the Mississippi constitution,
which gives those courts “full jurisdiction in . . . [m]atters testamentary and of
administration.” Miss. Const. 1890, § 159. Moreover, “all facts necessary to sustain
the jurisdiction or decrees of such courts are presumed to exist until the contrary
appears in the record.” Coglan v. Coglan, 18 So. 2d 149, 150 (Miss. 1944).
Matthews cites no legal authority for the proposition that the Chancery Court
lacked jurisdiction to enter the May 15, 2015 Order, but merely refers to a letter
sent by Copeland to the Chancery Court that argued the Chancellor had no such
authority. Defs.’ Mem. [122] at 13. However, the statute and cases mentioned in
that letter do not speak to the question of whether the Chancery Court lacked
authority to enter its orders. Letter [120-28]. Matthews’ argument on this point is
not adequately supported by citation to legal authorities and is therefore
insufficient to carry his initial summary judgment burden.
Matthews’ second argument is that there is no admissible evidence that the
Chancery Court set aside the probate of the Will because of Matthews’ negligence.
Defs.’ Mem. [122] at 15. Specifically, Matthews contends that McReynolds cannot
produce any evidence that Matthews is liable for the inconsistent dates in the Will.
Id. McReynolds counters that the “inconsistencies in the dates in Dick’s Will go

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toward the validity of the Will which would have been time-barred as of April 9,
2015 but for Matthews’ neglect and oversight in drafting the April 9, 2013
Judgment.” Pl.’s Mem. [129] at 24. McReynolds also takes the position that the
May 15, 2015 Order “does not specify any findings why the nunc pro tunc common
form probate of Dick’s Will was set aside.” Id.
The proximate cause of an injury is that cause which in natural
and continuous sequence unbroken by any efficient intervening cause
produces the injury, and without which the result would not have
occurred. If another acting independently and of his own volition puts
in motion another intervening cause which efficiently leads in unbroken
sequence to the injuries, then the intervening cause is the proximate
cause.
Jennings v. Shuler, 147 So. 3d 847, 854 (Miss. Ct. App. 2014) (citations and
quotation marks omitted). Williford has opined that if “Matthews had properly
drafted the Judgment entered on April 9, 2013 to probate the Will, the decedent’s
heirs would have been time barred from contesting the Will after the entry of the
Judgment of April 9, 2015.” Williford Report [128-16] at 15. However, any alleged
negligence of Matthews in drafting the April 9, 2013 Judgment may have been
alleviated when the Chancery Court later entered the Decree Admitting Will to
Probate Nunc Pro Tunc to April 9, 2013.
Nunc pro tunc means “now for then.” A nunc pro tunc order is used to
supply omissions in the record of what had previously been done, and by
mistake or neglect not entered. A judgment entered nunc pro tunc
normally does not refer to a new or fresh (de novo) decision, as when a
decision is made after the death of a party, but relates to a ruling or
action actually previously made or done but concerning which for some
reason the record thereof is defective or omitted. The entry of a nunc
pro tunc order does not itself have a retroactive effect, but it constitutes
the
later
evidence
of
a
prior
effectual
act.

19

McGrew v. McGrew, 184 So. 3d 302, 308 (Miss. Ct. App. 2015) (internal citations
and quotation marks omitted).
In the Decree Admitting Will to Probate Nunc Pro Tunc to April 9, 2013, the
Chancery Court found that Dick’s Will “was, in fact, admitted to probate on April 9,
2013, but that the Judgment simply mistakenly neglected to state so.” Decree [12815] at 2. The Decree further ordered that “the two-year statute of limitations for
any contests of [Dick’s Will] began to run on April 9, 2013, the date the said Will
was admitted to probate.” Id. Therefore, as of April 13, 2015, the day the court
entered its Decree, not only had Dick’s Will been admitted to probate, but the twoyear statute of limitations to challenge the Will had expired. See Miss. Code Ann. §
91-7-23 (“If some person does not appear within two years to contest the will, the
probate shall be final and forever binding[.]”).
It was the Chancery Court that, in its own words, “sua sponte” reopened the
probate and reset the statute of limitations at its hearing on May 7, 2015. As
Matthews points out in his Memorandum Brief, the Chancery Court laid out its
reasons for setting aside the probate of the Will in its May 15, 2015 Order:
That this Court has concerns regarding, inter alia, the fact that
the exact date of death of Jack W. Dick is unknown, as no death
certificate has been filed in this Court, and that the document purported
to be the holographic Last Will and Testament of Jack W. Dick is dated
“June 29, 2012” on the top of the first page, but the attestation by the
notary public on the second page is dated “June 28, 2012.”
Order [128-10] at 2.
Nevertheless, Matthews has not carried his initial summary judgment
burden of demonstrating the absence of a genuine dispute of material fact on
20

whether the Chancery Court set aside probate of the Will because of any negligence
of Matthews. Matthews does not explain or contend how he could not be found
negligent to the extent he neglected to file Dick’s death certificate or clear up Dick’s
exact date of death with the court. Defs.’ Mem. [122] at 15; Reply at 10. The
Amended Petition for Probate, drafted and filed by Matthews on April 8, 2013,
states that Dick “departed this life on the 31st day of March, 2013 or April 1,
2013[.]” See Am. Pet. for Probate [128-6] at 1. Dick’s death certificate was issued
on April 12, 2013, declaring Dick’s date of death as March 31, 2013. Death
Certificate [120-2]. At the hearing on May 7, 2015, the Chancery Court stated that
it had “concerns” that the Amended Petition for Probate indicated two possible
dates on which Dick died. Hearing Tr. [128-11] at 3. The court insisted, “We need
to verify the date of death of the decedent if he is, in fact, deceased.” Id. at 4. The
Chancery Court asked McReynolds and Copeland for the death certificate, but
neither of them could produce a copy, and McReynolds replied, “Mr. Matthews
never gave me one. He ordered 15 of them and distributed them out to whoever
needed them.” Id. at 3-4.
Matthews argues that asking this Court or a jury to determine why the
Chancery Court ruled the way it did would require an impermissible review of a
state court decision contrary to the Rooker-Feldman doctrine. Defs.’ Mem. [122] at
15-16 (citing Grudzinskas v. Homeside Lending, Inc., 345 F. Supp. 2d 633, 639 (S.D.
Miss. 2004)). “Reduced to its essence, the Rooker–Feldman doctrine holds that
inferior federal courts do not have the power to modify or reverse state court

21

judgments except when authorized by Congress.” Truong v. Bank of Am., N.A., 717
F.3d 377, 382 (5th Cir. 2013) (citation and quotation marks omitted). The United
States Supreme Court has held that the Rooker-Feldman doctrine is narrowly
confined to “cases brought by state-court losers complaining of injuries caused by
state-court judgments rendered before the district court proceedings commenced
and inviting district court review and rejection of those judgments.” Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). The doctrine is
inapplicable here for several reasons. This case was not brought by a state-court
loser. McReynolds settled the contests to the Will, closed the Estate, and received
her inheritance. McReynolds is not complaining of injuries caused by any state
court judgment, rather, she is complaining of injuries caused by Matthews’ allegedly
negligent legal representation. Furthermore, attempting to ascertain the reasons
the Chancery Court articulated for its orders is not the same thing as making a
finding that a state court judgment is invalid.
Matthews argues that he is entitled to summary judgment on any claim that
he proximately caused McReynolds’ removal as Administratrix. Defs.’ Mem. [122]
at 11. Matthews seems to lump this claim together with McReynolds’ claims
related to the effects of setting aside the probated Will discussed earlier. However,
there is evidence that the Chancery Court removed McReynolds as Administratrix
for reasons independent of the setting aside the probate of the Will. In its May 15,
2015 Order, the Chancery Court ordered that “McReynolds is hereby removed as
Administratrix of this Estate, for her failure to comply with all aspects of this

22

Court’s Judgment of April 9, 2013[.]” Order [128-10] at 2. At the May 7, 2015
hearing, the Chancery Court informed McReynolds that she was being removed due
to her failure to comply with the court’s orders in the April 9, 2013 Judgment, such
as retaining the services of an appraiser and preparing an inventory. Hearing Tr.
[128-11] at 6-8, 11. Similarly, Matthews testified that McReynolds was removed as
Administratrix in part because no inventory had been filed, she failed to comply
with the court’s April 9, 2013 Judgment, and she failed to liquidate Dick’s
investment funds. Def. Dep. [128-4] at 87. Williford opines that Matthews failed to
advise and assist McReynolds in performing her required duties as Administratrix.
Williford Report [128-16] at 7. A genuine dispute remains as to whether Matthews
proximately caused McReynolds to be removed as Administratrix. The Court will
deny summary judgment on the question of whether Matthews proximately caused
the effects of the Chancery Court setting aside the probate, McReynolds being
removed as Administratrix, and the Will contests not being time-barred.
b.

McReynolds’ Claim for Lost Income and Dividends Caused by
Liquidation of Dick’s Investments

McReynolds contends that Matthews negligently liquidated Dick’s
investments to cash and deposited them into the Chancery Court’s registry, where
the Estate received no investment income. Am. Compl. [14] at 10; Hines Report
[120-25] at 8. The Amended Complaint alleges that but for Matthews’ negligence,
“Dick’s estate would have earned a substantial amount of income and dividends
from June 16, 2015 through the closing of the Estate.” Am. Compl. [14] at 11.
Matthews argues that because he was terminated on March 3, 2015, the proximate
23

cause of any alleged loss of income and dividends beginning on June 16, 2015,
cannot be attributed to Matthews because an attorney-client relationship did not
exist. Defs.’ Mem. [122] at 17. In response, McReynolds now takes the position that
Dick’s investment account was liquidated to cash on February 11, 2015, prior to
Matthews’ termination, and that but for Matthews’ negligence, the account would
have earned interest and dividend income from February 11, 2015, to August 1,
2016. Pl.’s Mem. [129] at 26.
Mississippi law requires that the administratrix “shall give bond in a penalty
equal to the value of all the personal estate, with such sureties as may be approved
by the court or clerk, payable to the state[.]” Miss. Code Ann. § 91-7-67. As Dick
noted in his Will, Dick’s brokerage account was worth over $2 million. Will [120-5].
The Amended Petition for Probate, drafted and filed by Matthews on April 8, 2013,
requested “an order be entered directing financial institutions to tender to the
Registry of the Court of Pearl River County, Mississippi, any and all sums in their
hands in lieu of your Petitioner filing a bond for those substantial assets.” Am. Pet.
[128-6] at 2. The April 9, 2013 Judgment accordingly directed all of Dick’s “mutual
funds, stocks, bonds, or cash assets” to be liquidated and tendered to the Chancery
Court’s Registry “[i]n lieu of additional bond.” April 9, 2013 Judgment [128-7] at 2.
The record reflects that the actual date of liquidation of these assets appears
to be the subject of some dispute. McReynolds’ financial expert, Joseph Hines,
states that Matthews sent a letter to James Hartman, Dick’s investment advisor at
Merrill Lynch, dated December 12, 2014, which “was accompanied by the

24

documents that Merrill Lynch required in order to commence a liquidation of the
Estate’s account.” Hines Report [120-25] at 43. In that letter, Matthews allegedly
instructed Hartman to “immediately liquidate any and all funds held by Merrill
Lynch” and to transmit such funds to the Chancery Court’s registry. Id. Hines
opines that “the Estate’s Merrill Lynch account was ultimately liquidated . . . on 211-15, with the account . . . reflecting a total cash value at month-end (i.e., 2-28-15)
of $2,539,200.24.” Id.
However, according to Hines, “[t]he planned transfer of all funds in the
Merrill Lynch account finally took place in June, 2015, at which time funds totaling
$2,543,286.41 were transferred to the custody of the Pearl River Chancery Court
Registry.” Id. It is undisputed that Matthews was no longer McReynolds’ counsel
by June 2015. As of the date of the Chancery Court’s May 15, 2015 Order, the court
noted that “no funds relating to this case have been tendered into the Court
Registry.” Order [120-20] at 2. At that time, the court also ordered Patrick
Zachary, the new Administrator, to liquidate all of Dick’s financial assets and
tender them into the court’s registry. Id. at 4. On June 16, 2015, Merrill Lynch
tendered a check in the amount of $2,542,643.82, which was more than was in the
account on February 11, 2015, and which Zachary deposited into the Chancery
Court’s registry. Inventory [128-2] at 2, 5-7.
The foregoing raises serious questions about whether McReynolds will be
able to establish at trial how Matthews was the proximate cause of any damages
relating to the liquidation of Dick’s investments, or whether there were any such

25

damages at all. Nevertheless, because the evidence establishes a conflict as to when
and who liquidated Dick’s brokerage account, viewing the evidence in the light most
favorable to McReynolds, as the Court must at this stage, McReynolds has shown
that a genuine issue of material fact exists as to this issue.
While the Amended Complaint pled that these damages accrued from June
16, 2015, McReynolds now claims the damages began on February 11, 2015. This
discrepancy is not by itself sufficient to warrant summary judgment in Matthews’
favor. “Any variance between the time and place alleged in the complaint and the
proof at trial will be governed by the provision in Rule 15(b) for amendments to
conform to the evidence.” 5A Charles Alan Wright & Arthur R. Miller, Fed. Prac. &
Proc. Civ. § 1308 (3d ed. 2017); see also Stevens v. F/V Bonnie Doon, 731 F.2d 1433,
1437 (9th Cir. 1984) (holding trial court did not err in denying motion to limit
damages to the sum set forth in the pleadings).
Matthews also asserts that McReynolds, through new counsel, should have
petitioned the Chancery Court to request that the investment funds remain in a
brokerage account. However, Matthews has not met his summary judgment burden
on this point. An injured party has a duty to mitigate damages, but a “standard of
reasonableness applies” to that duty. R. McKnight & Son v. C & I Entm’t, 100 So.
3d 1022, 1028 (Miss. Ct. App. 2012). The injured party need only make “reasonable
efforts,” “take reasonable precautions,” and “make reasonable expenditures” to
lessen the resulting damage. Hudson v. Farrish Gravel Co., 279 So. 2d 630, 634-35
(Miss. 1973) (quoting 15 Am. Jur. Damages § 40, at 439 (1938)). These are

26

inherently factual inquiries, and Matthews has not shown the absence of a genuine
dispute of material fact as to whether it would have been reasonable for
McReynolds to move the Estate’s funds from the Chancery Court’s registry back
into Dick’s investment account, especially in light of the facts that McReynolds
likely would have had to “give bond in a penalty equal to the value of all the
personal estate,” Miss. Code Ann. § 91-7-67, and that she was removed as
Administratrix in May 2015. The reasonableness of McReynolds’ efforts to mitigate
her damages will be an issue for the jury to determine.
c.

McReynolds’ Claim that Matthews Caused the Estate to Incur
Higher Taxes by Declaring Dick a Mississippi Resident

Williford opines that Matthews negligently declared Dick a Mississippi
resident, rather than a Florida resident, for tax purposes, causing the Estate to
incur higher taxes, as Florida does not have a state income tax. Williford Report
[128-16] at 12-13. Matthews moves for summary judgment on this claim on
grounds that McReynolds cannot now claim Dick was a Florida resident at the time
of his death since McReynolds testified in open court in the Estate proceeding that
Dick was a Mississippi resident. Defs.’ Mem. [122] at 18.
McReynolds attests that the day she hired Matthews, she provided him a
copy of Dick’s July 2012 Merrill Lynch brokerage statement, and soon after, she
supplied him with copies of Dick’s federal tax returns for 2008, 2009, 2010, and
2011. Pl. Aff. [128-8] at ¶ 12-13. McReynolds states that both the Merrill Lynch
statement and the tax returns reflected Dick’s address as a Florida address. Id. at
¶ 14. Matthews filed the Amended Petition for Probate on April 8, 2013, which
27

stated that Dick was a Mississippi resident. See Am. Pet. for Probate [128-6] at 1.
Williford opines that this filing subjected the Estate to income taxes from the State
of Mississippi. Williford Report [128-16] at 12-13. Williford further states that
Florida does not have a state income tax. Id. at 13. It was not until the hearing on
May 7, 2015, that McReynolds testified that Dick was a Mississippi resident.
Hearing Tr. [128-11] at 20-21. This was years after Matthews filed the Amended
Petition for Probate and months after McReynolds terminated Matthews. A
question of fact exists as to whether Dick was a resident of Mississippi or Florida,
and if the latter, whether Matthews was negligent in declaring him to be a
Mississippi resident. Matthews’ Motion for Summary Judgment will be denied as
this claim.
d.

McReynolds’ Claim that Matthews Caused Penalties for Filing
the Estate’s Tax Returns Late

Matthews moves for summary judgment on McReynolds’ claim that but for
Matthews negligently failing to advise and assist McReynolds in timely filing
income tax returns, the Estate would not have incurred penalties for late filings.
Defs.’ Mem. [122] at 18-19. Matthews claims that whether he was negligent in
assisting McReynolds in filing tax returns requires expert testimony on the
standard of care and whether he breached it, and that McReynolds has proffered
neither. Id. However, Williford testified that an attorney should be aware of when
tax returns are due and provide advice to an administratrix regarding the necessity
of filing tax returns. Williford Dep. [128-20] at 19. He has also opined that “it
appears that certain tax returns were not filed timely.” Id. at 18. This is sufficient
28

to create a jury question on whether Matthews breached the standard of care, and
Matthews is not entitled to summary judgment on this claim.
2.

McReynolds’ Standard of Conduct/Breach of Fiduciary Duty Claims

To establish a legal-malpractice claim based on an alleged breach of fiduciary
duty, a plaintiff must prove: “(1) the existence of an attorney-client relationship; (2)
the acts constituting a violation of the attorney’s fiduciary duty; (3) that the breach
proximately caused the injury; and (4) the fact and extent of the injury.” Crist, 65
So. 3d at 843.
The duty of loyalty is fiduciary in nature. In the present context its
breach may take one of two forms. The first involves situations in which
the attorney obtains an unfair personal advantage, such as acquiring
property from a client; the second involves situations in which the
attorney or other clients have interests adverse to the client in question.
We have recently defined the lawyer’s duty of loyalty to include a duty
to: safeguard the client’s confidences and property, avoid conflicting
interests that might impair the representation, and not employ
adversely to the client[] powers conferred by the client-lawyer
relationship.
Baker Donelson Bearman Caldwell & Berkowitz, P.C. v. Seay, 42 So. 3d 474, 486
(Miss. 2010) (citations omitted) (format altered).
“[A]n attorney’s breach of his fiduciary duties to his client may cause injury
to the client entirely separate from the merits of the underlying case.” Crist, 65 So.
3d at 843. Therefore, “the proof of proximate cause in such cases is to be tailored to
the injury the client claims and the remedy he elects.” Id. at 842 (citation and
quotation marks omitted).

29

a.

Income Taxes and Liquidation of the Investment Account

Williford opines that Matthews breached the standard of conduct by failing to
advise McReynolds to declare Dick a Florida resident for tax purposes and by
requesting that the Chancery Court order Dick’s investments liquidated. Williford
Report [128-16] at 16. Matthews argues that these allegations are insufficient as a
matter of law to support a breach of fiduciary duty claim. Defs.’ Mem. [122] at 20.
The Court agrees. McReynolds has not alleged how, or produced any evidence to
show that, these complained of acts conferred upon him an unfair personal
advantage, created an adverse interest, or breached confidentiality. Without more,
this is not a sufficient legal or evidentiary basis to support a breach of the standard
of conduct claim. Matthews is entitled to summary judgment on this claim.
b.

Communications with Dick’s Half-Brother

Matthews moves for summary judgment on McReynolds’ claim that
Matthews breached his fiduciary duty by informing Charles Dick of the existence of
Jack Dick’s Estate and of its value. Matthews posits that the Estate’s value was
public record and thus Matthews did not disclose any “confidential” information.
Defs.’ Mem. [122] at 21. Matthews also argues that McReynolds has failed to show
that any alleged breach of fiduciary duty was the proximate cause of any of her
damages. Id. McReynolds counters that there is no evidence that Charles Dick was
aware of the size of Dick’s estate until Matthews revealed that information. Pl.’s
Mem. [129] at 30.

30

It is undisputed that the Will was filed in the Chancery Court and that Dick
wrote on the Will the value of his Estate. Will [120-5]. Whether or not Charles
Dick was aware of the Estate’s value, McReynolds has not shown how this
information was confidential. Furthermore, McReynolds has produced no evidence
that the disclosure of this information proximately caused Charles Dick to file the
contest. Matthews disclosed this information in April 2013, and Charles Dick did
not initiate his Will contest until October 13, 2015, after the Chancery Court issued
a summons to Charles and notified him of the June 11, 2015 Petition to Probate
Will in Solemn Form. Williford Report [128-16] at 4. McReynolds has not
demonstrated that a genuine issue of material fact precludes summary judgment on
this claim.
3.

McReynolds’ Claims for Damages
a.

Attorneys’ Fees Paid to Johnson in Estate Proceedings

McReynolds claims damages of $794,900.80 in attorneys’ fees paid to Johnson
for her representation of McReynolds in the Estate proceedings. Hines Report [12025] at 14. Matthews contends that because McReynolds cannot present any
admissible evidence that these fees were reasonable, Matthews is entitled to
summary judgment. Defs.’ Mem. [122] at 9-11. McReynolds responds that
reasonableness is not an element she must prove, but even if it is, she can rebut
Matthews’ argument that the fees were unreasonable through her experts Williford
and Corlew. Pl.’s Mem. [129] at 17-20.

31

In Mississippi, the burden is on a plaintiff seeking attorneys’ fees as damages
to prove the reasonableness of the fees. Mississippi cases
make clear that an attorneys fee claim has factual components that
must be proved. One of those components is the customary charge in
the community. If this is so where the trial judge is the fact finder, it is
more so where the facts are to be found by a jury. Jurors may not be
presumed to know what fees are reasonable and necessary.
Where the question of an award of attorneys fees is being submitted
to the jury as the trier of fact, the party seeking the fee must prove, inter
alia, the reasonable necessity of the rendering of the services and
spending the amount of time for which the fee is charged, as well as the
reasonableness of the hourly rate. Frequently this is done by the calling
of another attorney in the community who is familiar with the type of
case and the rates customarily charged for similar services and who then
provides the necessary opinion testimony. Such proof may also be made
by the attorney whose fee is claimed. So long as a proper foundation is
laid, the attorney representing the fee applicant or any other attorney
may provide the evidentiary foundation for reasonableness and
necessity. Absent such foundation, however, the jury is necessarily left
to guess and speculate.
Clark v. Whiten, 508 So. 2d 1105, 1108-09 (Miss. 1987) (citations, quotation marks,
and footnote omitted) (emphasis added).
Thus, under Mississippi law, a showing of reasonableness is an essential
element of McReynolds’ damages claim for attorneys’ fees. McReynolds has not
come forward with significant probative evidence that there exists a genuine issue
of material fact regarding the reasonableness of these attorneys’ fees. While
McReynolds points to Corlew’s and Williford’s opinions on this issue, the Court
previously struck Corlew’s opinions and Williford’s Second Report as to the
reasonableness of attorneys’ fees. Order [140]. Moreover, McReynolds has not put
forth any other evidence, such as testimony or an affidavit from Johnson, that the
attorneys’ fees were reasonable. Without evidence of the reasonableness of these
32

fees, McReynolds cannot withstand Matthews’ Motion for Summary Judgment as to
these attorneys’ fees.
b.

Punitive Damages

Matthews contends that “McReynolds has no clear and convincing evidence
that Matthews acted with malice, gross neglect or reckless disregard in his handling
of the Jack Dick Estate and therefore cannot sustain a claim for punitive damages
as a matter of law.” Defs.’ Mem. [122] at 23. McReynolds argues that “[f]or more
than two years, Matthews failed to complete Dick’s estate despite repeated pleas by
[McReynolds] for seven months when she was in dire financial need of the monies
bequeathed to her by Dick’s Will in order to avoid foreclosure of her childhood
home.” Pl.’s Mem. [129] at 33.
“Mississippi law does not favor punitive damages; they are considered an
extraordinary remedy and are allowed with caution and within narrow limits.”
Warren v. Derivaux, 996 So. 2d 729, 738 (Miss. 2008) (citation and quotation marks
omitted). “Punitive damages are appropriate only in cases where the plaintiff
shows by clear and convincing evidence that the defendant acted with malice, gross
negligence evidencing willful, wanton, or reckless disregard for the safety of others,
or the commission of actual fraud.” Gray v. Framme Law Firm of MS, P.C., 141 So.
3d 430, 435 (Miss. Ct. App. 2013) (citation omitted). “Gross negligence is that
course of conduct which, under the particular circumstances, discloses a reckless
indifference to consequences without the exertion of any substantial effort to avoid
them.” Dame v. Estes, 101 So. 2d 644, 645 (Miss. 1958).

33

McReynolds asserts that after October 2013, she “had minimal
communications with Matthews despite my numerous attempts to communicate
with him.” Pl. Aff. [128-8] at ¶ 4. McReynolds testified at her deposition that “I
would call him, but I could never reach him. I mean, I have email after email after
email please call me, text after text after text, call after call after call. And he
wouldn’t even respond back. It would be his paralegal.” May 23, 2017 Pl. Dep.
[128-1] at 116-17. McReynolds testified that she had supplied to her counsel with
all emails available to her that she sent to Matthews and “any that had any
responses or no responses at all.” Id. at 117-18.
The Court’s review of the emails, which McReynolds has attached as Exhibit
“A” to her affidavit submitted in support of her response to Matthews’ Motion, does
not reveal a lack of exertion or effort so substantial on Matthews’ part that would be
sufficient to support a claim for punitive damages. For example, on August 18,
2014, McReynolds emailed Matthews and asked what type of information Matthews
needed regarding Dick’s vehicles. Pl. Aff. Ex. A [128-8] at 8. Matthews replied the
following morning, “[i]t was my understanding that you and your sister were
coming last Friday. I had the real estate appraiser on standby to go and look at the
house. I need to know where the key is to the house so that I can personally take
the real estate appraiser to look at the house.” Id. Matthews further indicated that
he had corrected the Merrill Lynch documents and was returning them to
McReynolds, and asked McReynolds to sign the documents and verify her current
address. Id. Matthews also instructed McReynolds what information and type of

34

photographs he needed of Dick’s vehicles. Id. Matthews closed by asking
McReynolds to confirm receipt of the email with a reply. Id.
On November 7, 2014, McReynolds emailed Matthews to check on the Estate
“because I received a letter about the house and I assume it is because it has been a
year since the foreclosure process began and I am very afraid I will lose this home.”
Id. On December 12, 2014, McReynolds emailed and asked Matthews to call her.
Id. at 11. Matthews responded two hours later and informed her that the appraisal
on the property came back, that he would have the other appraisals momentarily,
and that the final account and adjudication of heirship would be ready for
McReynolds’ signature towards the end of the following week. Id. McReynolds
emailed Matthews on December 22, 2014, asking to set up an appointment to sign
the paperwork Matthews had previously mentioned. Id. The last email is dated
February 2, 2015, in which McReynolds states the “property left to” her had been
sold and she is “trying to find out how to get these taxes paid.” Id. at 12.
McReynolds stated that she felt abandoned and did not know why Matthews would
not contact her. Id.
This undisputed evidence shows that Matthews worked towards
administering the Estate and answered some of McReynolds’ inquiries. McReynolds
also admits that Matthews’ paralegal returned some of her calls. McReynolds may
have been dissatisfied with Matthews’ representation and a jury might ultimately
conclude that Matthews was negligent. However, McReynolds has not proffered
sufficient summary judgment evidence to carry her much higher burden at trial on

35

a punitive damages claim, which is to show by clear and convincing evidence that
Matthews’ conduct rose to the level of gross negligence and a reckless indifference to
consequences without the exertion of any substantial effort to avoid them. No
reasonable juror could reach such a conclusion based upon the evidence submitted
by McReynolds.
III. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that Defendants’
Motion [120] for Summary Judgment is GRANTED IN PART as to Plaintiff’s: (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 are DISMISSED WITH
PREJUDICE.
IT IS, FURTHER, ORDERED AND ADJUDGED that the Motion is
DENIED IN PART as to Plaintiff’s: (1) breach of the standard of care claim that
Defendants’ alleged negligence caused the Will contests to not be time-barred; (2)
breach of the standard of care claim that Defendants’ 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 the 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 due to the late filing of the Estate’s tax returns.

36

These claims will proceed to trial.
SO ORDERED AND ADJUDGED, this the 3rd day of January, 2018.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

37