Buckley v. Citrin Law Firm, P.C. et al

Filing 75

AMENDED MEMORANDUM OPINION AND ORDER Granting Defendants' Motions 28 37 for Summary Judgment. Signed by District Judge Halil S. Ozerden on 10/11/2017. (JD)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JOSEPH BUCKLEY as
ADMINISTRATOR OF THE
ESTATE OF ETHEL LEE BUCKLEY
v.

PLAINTIFF
Civil No. 1:16-CV-378-HSO-JCG

CITRIN LAW FIRM, P.C.,
ELIZABETH A. CITRIN,
ANDREW T. CITRIN, and
SAMUEL McCLURKIN, IV

DEFENDANTS

AMENDED MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTIONS [28][37] FOR SUMMARY JUDGMENT
BEFORE THE COURT are the Motion [28] for Summary Judgment filed by
Defendants Citrin Law Firm, P.C. (“CLF”), Andrew Citrin (“Mr. Citrin”), and
Samuel McClurkin, IV (“Mr. McClurkin”), and the Motion [37] for Summary
Judgment filed by Defendant Elizabeth Citrin (“Ms. Citrin”).
fully briefed.

These Motions are

After due consideration of the record, the submissions on file, and

relevant legal authority, the Court finds that the Motions [28][37] should be
granted.

This case will be dismissed with prejudice.
I.

A.

RELEVANT BACKGROUND

Defendants’ Representation of Ethel Lee Buckley
Beginning in October 2006, CLF, Ms. Citrin, Mr. Citrin, and Mr. McClurkin

(collectively, “Defendants”) represented Ethel Lee Buckley (“Buckley”) in a slip-andfall case against Singing River Hospital in the Circuit Court of Jackson County,
Mississippi.

Sullivan’s Aff. [41-2] at ¶ 5-6; Compl. [1-2] at 2-3. In that case, the

trial court ultimately granted defendant Singing River Hospital’s motion for

summary judgment on April 20, 2011, and dismissed the case. Defs.’ Mem. [29] at
1; Pl.’s Mem. [42] at 1.

The trial court’s dismissal was based upon Defendants’

failure to properly designate a medical expert to testify to duty, breach, causation,
and damages.

Defs.’ Mem. [29] at 1; Pl.’s Mem. [42] at 1.

Defendants filed an

appeal on behalf of Buckley and the Mississippi Court of Appeals affirmed on
October 2, 2012.

Sullivan’s Aff. [41-2] at ¶ 5-6; Pl.’s Answers to Defs.’ 1st Set of

Req. for Admis. [28-1] at 1.

The court of appeals’ opinion has been a matter of

public record since that date. Pl.’s Answers to Defs.’ 1st Set of Req. for Admis. [281] at 1.
On November 1, 2012, Ms. Citrin called a meeting with Buckley.
Aff. [41-2] at ¶ 9; Buckley Letter to Gillis [37-1].

Sullivan’s

Ms. Citrin provided Buckley with

a copy of the Mississippi Court of Appeals’ opinion and advised her that Defendants
could do nothing more to assist with her case.

Sullivan’s Aff. [41-2] at ¶ 9; Buckley

Letter to Gillis [37-1]; Pl.’s Answers to Defs.’ 1st Set of Req. for Admis. [28-1] at 2.
The next day, Buckley sent a letter to the Clerk of the Mississippi Court of Appeals,
Kathy Gillis (“Gillis”), asserting that Buckley needed more time to find new lawyers
to represent her in pursuing her claims against Singing River Hospital.
Letter to Gillis [37-1].

Buckley

Buckley wrote that she is “trying as hard as I can to get my

case heard before the courts,” but in the “8 years since I fell on my job, I have never
been seen or heard in front of any Court or any court hearing personally.”

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Id.

B.

Buckley’s Legal Malpractice Claim
On November 30, 2012, Buckley met with attorney David Sullivan

(“Sullivan”) to discuss retaining him to represent her.

Sullivan’s Aff. [41-2] at ¶ 5.

Buckley informed Sullivan that Defendants previously represented her in her
lawsuit against Singing River Hospital, id. at ¶ 6, and that the Mississippi Court of
Appeals had affirmed the trial court’s dismissal of her case on October 2, 2012, id.
at ¶ 7-8. Buckley advised Sullivan that she met with Ms. Citrin on November 1,
2012, that Ms. Citrin informed her of the Mississippi Court of Appeals decision, and
that Ms. Citrin told Buckley that Defendants could do nothing further to assist with
her case. Id. at ¶ 9.
Buckley also told Sullivan of her letter to Gillis, but indicated that she had
received no response to the letter. Id. at ¶ 10.

Sullivan contacted Gillis, who

informed Sullivan that the court of appeals had not received Buckley’s letter. Id.
at ¶ 13. On November 30, 2012, Buckley executed a contingency fee contract with
Sullivan to represent her in a legal malpractice claim against Defendants. Id. at ¶
14; Contract for Employment [41-4].

That same day, Sullivan sent correspondence

to Mr. Citrin, Mr. McClurkin, and CLF, advising of his representation of Buckley,
requesting a copy of her file, and seeking a copy of Defendants’ declarations page of
their professional liability insurance policy.

Sullivan Letter to Mr. Citrin [37-3].

Gillis later contacted Sullivan, stating that she had received Buckley’s letter,
Sullivan’s Aff. [41-2] at ¶ 16, and on December 11, 2012, the Mississippi Court of
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Appeals entered an order treating Buckley’s letter as a pro se request to file an outof-time motion for rehearing and extension of time to find new counsel, Dec. 12,
2012 Miss. Court of Appeals Order [41-6].
On January 14, 2013, Mr. Citrin, on behalf of Defendants, filed a Motion to
Withdraw as counsel for Buckley, noting that Sullivan represented Buckley.

Mot.

to Withdraw [41-7]. On January 22, 2013, the Mississippi Court of Appeals
entered an order authorizing Buckley to file a motion for rehearing within fourteen
days and granting the Motion to Withdraw filed by Mr. Citrin. Jan. 22, 2013 Miss.
Court of Appeals Order [37-2].
On February 1, 2013, counsel for CLF, J. Wyatt Hazard (“Hazard”), sent a
letter to Sullivan.

Hazard Letter to Sullivan [41-12] at 1. Hazard stated that

“[t]he purpose of this letter is to advise that Ms. Buckley has a duty to mitigate her
damages and to pursue the appellate process.” Id. at 2.

Hazard took the position

that “it is the duty of Ms. Buckley, and/or you, to timely file the Motion for
Rehearing.” Id. at 1.
Rehearing.

On February 5, 2013, Sullivan filed Buckley’s Motion for

Sullivan’s Aff. [41-2] at ¶ 29. On October 15, 2013, the Mississippi

Court of Appeals denied rehearing and affirmed the trial court’s decision. Nov. 7,
2013 Miss. Court of Appeals Mandate [41-15].
Buckley passed away on March 28, 2015. Pl.’s Answers to Defs.’s 1st Set of
Req. for Admis. [28-1] at 2.

Joseph Buckley opened an estate proceeding on behalf

of Ms. Buckley on August 28, 2015, and was later appointed administrator of the
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estate.
C.

Mot. [37] at 2.

The Present Litigation
On August 17, 2016, Plaintiff Joseph Buckley, as administrator of the Estate

of Ethel Lee Buckley (“Plaintiff”), filed a Complaint in the Circuit Court of Jackson
County, Mississippi, against Defendants alleging legal malpractice.

Compl. [1-2].

CLF, Mr. Citrin, and Mr. McClurkin removed the case to this Court on October 17,
2016.

Not. of Removal [1].

On April 25, 2017, CLF, Mr. Citrin, and Mr.

McClurkin filed a Motion [28] for Summary Judgment, contending that the threeyear statute of limitations for malpractice actions bars Plaintiff’s claims. Defs.’
Mem. [29] at 3.

Defendants argue that the statute of limitations began to run on

November 1, 2012, when Buckley received of a copy of the Mississippi Court of
Appeals’ opinion, and that there was no requirement under Mississippi law that the
underlying action be terminated prior to the statute of limitations commencing.
Id.
On May 1, 2017, Ms. Citrin filed her own Motion [37] for Summary
Judgment.

Ms. Citrin also takes the position that the statute of limitations bars

Plaintiff’s claims because the latest possible time for accrual of these claims was no
later than November 30, 2012, when Sullivan sent a letter to Mr. Citrin advising of
his representation and asking that Mr. Citrin provide information on CLF’s liability
insurance.

Def.’s Mem [38] at 4.

Ms. Citrin also asserts that there was no

requirement in Mississippi that the underlying action be terminated prior to the
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statute of limitations beginning to run. Id. at 6.
On May 9, 2017, Plaintiff filed a Memorandum in Opposition [42] to CLF, Mr.
Citrin, and Mr. McClurkin’s Motion for Summary Judgment, and on May 15, 2017,
Plaintiff filed a Memorandum in Opposition [45] to Ms. Citrin’s Motion for
Summary Judgment.

Plaintiff counters that the claims did not accrue until

October 15, 2013, when the Mississippi Court of Appeals denied rehearing, because
Buckley did not suffer any injury until that time.
Mem. [45] at 17-18.

Pl.’s Mem. [42] at 19-20; Pl.’s

Plaintiff also argues that Defendants should be equitably

estopped from invoking the statute of limitations because Hazard represented to
Sullivan that Buckley must pursue the appellate process prior to filing suit against
Defendants, and Sullivan relied on those representations to postpone the
malpractice suit in order to appeal.

Pl.’s Mem. [42] at 26; Pl.’s Mem. [45] at 25-26.

In their Reply, CLF, Mr. Citrin, and Mr. McClurkin maintain that the law
does not require full exhaustion of all appeals in order for a legal malpractice action
to accrue, and that Plaintiff incurred damages when the trial court dismissed the
case.

Reply [51] at 3-4.

Defendants argue that equitable estoppel does not bar

their statute of limitations defense because Hazard made no representation as to
when the cause of action would accrue, the letter relating to the mitigation of
damages should have placed Plaintiff on notice that the cause of action already
existed, and equitable estoppel cannot apply to a legal opinion. Id. at 6-7.
Ms. Citrin maintains in her Reply that Hazard never represented her in any
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of these matters, and thus there is no evidence that she made any representations
that could have delayed the filing of Plaintiff’s Complaint, and that proof an injury
had occurred was not necessary for Plaintiff’s legal malpractice action to accrue.
Reply [52] at 3, 10.
II.
A.

DISCUSSION

Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(a). “When the moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). “[T]he 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).
“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, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). If the evidence presented by the
nonmovant “‘is merely colorable, or is not significantly probative,’ summary
judgment is appropriate.” Cutting Underwater Techs. USA, Inc. v. ENI U.S.
7

Operating Co., 671 F.3d 512, 516 (5th Cir. 2012) (quoting Anderson, 477 U.S. at
249). In deciding whether summary judgment is appropriate, the Court views the
evidence and inferences in the light most favorable to the nonmoving party. RSR
Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
B.

Analysis
1.

Statute of Limitations for Legal Malpractice in Mississippi

Because this case arises under the Court’s diversity jurisdiction, Mississippi
substantive law applies. Cox v. Wal-Mart Stores E., L.P., 755 F.3d 231, 233 (5th
Cir. 2014); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

“The three-year

statute of limitations found in Mississippi Code Section 15–1–49 applies to actions
for legal malpractice.” Bradley v. Jordan, 182 So. 3d 439, 440 (Miss. 2016) (citing
Bennett v. Hill–Boren, P.C., 52 So. 3d 364, 369 (Miss. 2011)).

Mississippi applies

the “discovery rule for legal malpractice actions, holding that the statute of
limitations would begin to run at the time the client discovered or through the use
of reasonable diligence should have discovered his counsel’s negligence.” Id. at
440-41 (citing Smith v. Sneed, 638 So. 2d 1252, 1258 (Miss. 1994)).

Plaintiff filed

the Complaint in this case on August 17, 2016. Compl. [1-2]. Therefore, if
Buckley discovered or by reasonable diligence should have discovered Defendants’
negligence before August 17, 2013, the statute of limitations bars Plaintiff’s claims.
2.

There Is No Genuine Dispute as to a Material Fact Regarding the
Statute of Limitations.

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It is undisputed that on October 2, 2012, the Mississippi Court of Appeals
affirmed summary judgment in favor of Singing River Hospital, and that on
November 1, 2012, Buckley received a copy of that opinion.

Sullivan’s Aff. [41-2] at

¶ 9; Buckley Letter to Gillis [37-1]; Pl.’s Answers to Defs.’ 1st Set of Req. for Admis.
[28-1] at 2.

The court of appeals’ opinion discusses at length the errors committed

by Defendants, and affirms dismissal of the underlying action on the basis of those
errors. See Buckley v. Singing River Hosp., 99 So. 3d 248 (Miss. Ct. App. 2012).
There can be no genuine dispute that Buckley discovered or should have discovered
Defendants’ negligence on November 1, 2012.

Indeed, Plaintiff concedes that “the

October 2, 2012 decision of the [Mississippi] Court of Appeals contained information
concerning defendants’ negligence.”

Pl.’s Mem. [42] at 21.

Alternatively, there is no dispute that on November 30, 2012, Buckley met
with Sullivan and told him that: (1) Defendants previously represented her in the
underlying action; (2) the Mississippi Court of Appeals affirmed the trial court
judgment on October 2, 2012; and (3) Ms. Citrin gave Buckley a copy of the
Mississippi Court of Appeals opinion.

Sullivan’s Aff. [41-2] at ¶ 5-9.

It is further

undisputed that, in response to Buckley’s meeting with Sullivan, Buckley retained
Sullivan for a malpractice lawsuit at which point Sullivan wrote Defendants
seeking information about their liability insurance. Id. at ¶ 14; Sullivan Letter to
Mr. Citrin [37-3].

Thus, no genuine dispute exists that Buckley discovered or

should have discovered Defendants’ negligence by November 30, 2012, at the latest.
Plaintiff contends that the statute of limitations did not run until the
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Mississippi Court of Appeals denied rehearing on October 13, 2013 because
“Buckley did not have notice of an injury, as no injury or damages occurred until
such time.”

Pl.’s Memo. [42] at 19.

Plaintiff further argues that because injury is

an element of a malpractice claim, Buckley could not have discovered any
malpractice prior to October 15, 2013.

Id. at 23.

Spann v. Diaz, 987 So. 2d 443 (Miss. 2008).

Plaintiff hinges his argument on

Pl.’s Mem. [42] at 20-21.

However, a

close inspection of Spann supports summary judgment in favor of Defendants.
a.

Plaintiff Misreads Spann

In Spann, Timothy Spann died in the nursey at Methodist Medical Center on
April 8, 1994. 987 So. 2d at 444. That same year, Timothy’s mother, Patricia
Spann, contacted attorney Arnold Dyre about filing a medical malpractice lawsuit.
Id.

Dyre sent a letter containing Timothy’s medical records to attorney Gerald

Diaz to explore the possibility of the two working together on the case. Id. at 44445.

Diaz received the letter and opened a file on the case. Id. at 445. Eventually

the case was assigned to attorney Kenny Womack. Id.

On April 18, 1996, in

order to preserve Spann’s claim, Womack filed a complaint asserting wrongful
death and medical practice. Id.

The complaint did not name Dr. Rawson,

Timothy’s treating neonatologist, as a defendant. Id.

After receiving an expert

opinion that Dr. Rawson was purportedly negligent, Womack filed an amended
complaint on July 10, 1997, adding Dr. Rawson as a defendant. Id.

In his

answer, Dr. Rawson asserted that the statute of limitations had expired prior to
him being added as a defendant. Id.
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The jury returned a verdict in favor of Spann. Id.

Dr. Rawson appealed

the judgment to the Supreme Court of Mississippi, raising his statute of limitations
defense. Id.

On June 28, 2001, the supreme court reversed and rendered

judgment in favor of Dr. Rawson on the grounds that the statute of limitations had
expired. Id.
2002.

Spann filed a Motion for Rehearing which was denied on May 23,

Id.
On May 25, 2005, Spann contacted a new attorney, John Giddens, who

informed Spann that Diaz was negligent in untimely adding Dr. Rawson as a
defendant. Id.
445-46.

On May 26, 2005, Spann sued Diaz for legal malpractice. Id. at

Diaz moved for summary judgment and claimed that the statute of

limitations barred the lawsuit. Id. at 446.
Id.

The trial court granted Diaz’s motion.

Spann appealed to the state supreme court on grounds that Diaz waived the

statute of limitations defense and that the trial court erred by not tolling the statute
of limitations based on fraudulent concealment. Id.
Spann argued that the statute of limitations did not begin running until May
25, 2005, when Giddens told Spann that Diaz was negligent because Diaz
fraudulently concealed material facts from her which prevented her from
discovering Diaz’s negligent acts. Id. at 448-49.

The supreme court found that

“Spann had a known injury as of May 23, 2002, when the motion for rehearing in
Rawson was denied.” Id. at 449-50.

The court rejected Spann’s fraudulent

concealment argument because the “Court’s opinion and denial of a motion for
rehearing are public record and Spann had all the information necessary to pursue
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her claim without being directly told that Diaz was negligent[.]”
Plaintiff’s reliance on Spann in this case is misplaced.

Id. at 450.

As Spann claimed

that fraudulent concealment tolled the statute of limitations, the supreme court
focused on the denial of rehearing because it was “public record.” Because it was
public information, it was dispositive of Spann’s claim that Diaz prevented Spann
from discovering Diaz’s negligence.

Nowhere did Spann require a final resolution

or exhaustion of appellate remedies of the underlying case in order for a malpractice
claim to accrue.

Furthermore, the supreme court concluded that its earlier

decision in the Rawson opinion gave Spann all the necessary information to pursue
her malpractice claim.

Here, Buckley had the necessary information to pursue her

claim on November 1, 2012, when she received a copy of the court of appeals’
opinion.
b.

Final Dismissal of an Underlying Action Is Not a Prerequisite
for a Malpractice Claim to Accrue.

Mississippi courts have rejected arguments that a malpractice claim does not
accrue until final resolution of the underlying case. In Hymes v. McIlwain, 856 So.
2d 416 (Miss. Ct. App. 2003), Hymes was convicted of felony charges in 1991 and
sentenced to thirty-five years in prison. Id. at 417. In 1995, Hymes pursued postconviction relief based on ineffective assistance of counsel. Id. Relief was granted
and Hymes’ conviction was vacated in 2000. Id. In 2001, Hymes filed a
malpractice suit against the attorneys who defended him in the 1991 criminal trial.
Id. The trial court granted summary judgment on grounds that the three-year

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statute of limitations barred the action. Id. at 418. On appeal, Hymes contended
that his claims were not time barred because, under Heck v. Humphrey, 512 U.S.
477 (1994), the statute of limitations did not run until his conviction was vacated.
856 So. 2d at 418. In Heck, the United States Supreme Court held that a 42 U.S.C.
§ 1983 claim which, if successful, casts aspersions upon the legality of conviction or
confinement is not cognizable until the conviction is voided. 512 U.S. at 486-87.
The Mississippi Court of Appeals rejected Hymes’ argument:
Controlling authority in the present suit is not Heck but standard
legal malpractice jurisprudence. The period of limitation in such a suit
begins to run as of the date the client learns, or through reasonable
diligence should have learned of his counsel's negligence. Smith v.
Sneed, 638 So. 2d 1252, 1253 (Miss. 1994). This was the ground upon
which the trial court found the suit untimely. Hymes was not required
by the operative cause of action for professional malpractice to prove
that the effects of his counsel's alleged negligence had been finally set
aside. The limitation period was therefore not awaiting final resolution
of the criminal matter before it would begin.
Hymes, 856 So. 2d at 419.
The statute of limitations therefore began to run at the very latest in 1995,
when Hymes filed his petition for post-conviction relief, as it became apparent
Hymes knew of his attorneys’ deficient performance. Id. See also Bradley, 182 So.
3d at 441 (adopting the holding in Hymes).
Since the Mississippi Supreme Court adopted the discovery rule for legal
malpractice actions in 1994, and as reaffirmed by the court in 2016, the statute of
limitations begins to run when “the client learns or through the exercise of
reasonable diligence should learn of the negligence of his lawyer.” Smith, 638 So.

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2d at 153 (emphasis added); see also Bradley, 182 So. 3d at 440-41. Channel v.
Loyacono, 954 So. 2d 415 (Miss. 2007), is dispositive on this issue. In Channel, in
February and March 2000, attorneys Loyacono and Verhine contracted with about
fifty individuals to represent them against defendant AHP for alleged injuries
caused by diet drugs. Id. at 418. In late November and early December 2000,
Loyacono and Verhine began settlement discussions with AHP and obtained
settlement offers. Id. The plaintiffs settled and received their funds on January
26, 2001. Id. at 419. The clients then filed an action on January 5, 2004, against
Loyacono and Verhine for legal malpractice in connection with the settlement
agreements. Id. The trial court dismissed these claims as barred by the statute of
limitations. Id. at 420.
The supreme court analyzed the accrual of two specific plaintiffs’ malpractice
action and held that their claims were time-barred. Id. at 422-23. Plaintiffs
Channel and Robinson “both testified that before signing their settlement
agreements, they suspected Loyacono and Verhine of wrongdoing.” Id. (emphasis
added) (footnote omitted). Channel testified that she contacted another attorney
who advised her not to sign the settlement agreement, and she told Loyacono that
she did not trust him. Id. at 423. Robinson testified that “she felt that she was
being misrepresented before she signed her settlement agreement as well.” Id.
(emphasis added). The supreme court concluded that the statute of limitations
began to run at the time Channel and Robinson believed Loyacono and Verhine
were guilty of wrongdoing. Id. at 423. Thus, the malpractice action accrued
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before they signed their settlement offers, while the underlying litigation was still
pending before the trial court.
Here, Plaintiff contends that prior to the appellate court’s denial of rehearing,
a malpractice action would have been premature because the court might have
remanded the case. Pl.’s Mem. [42] at 21. This contention is not persuasive.
“The would-be plaintiff need not have become absolutely certain that he had a cause
of action; he need merely be on notice-or should be-that he should carefully
investigate the materials that suggest that a cause of action probably or potentially
exists.”

Spann, 987 So. 2d at 450 (quoting First Trust Nat’l Ass’n v. First Nat’l

Bank of Commerce, 220 F.3d 331, 336-37 (5th Cir. 2000)) (emphasis in original).
The undisputed facts show that Buckley was on notice, or should have been, in
November 2012 that a cause of action potentially existed when she retained
Sullivan to represent her in a malpractice claim against Defendants.

There is not

a genuine dispute of material fact that the statute of limitations began to run more
than three years before Plaintiff filed the Complaint.
3.

Defendants Are Not Equitably Estopped From Raising the Statute of
Limitations Defense

“Equitable estoppel is generally defined as the principle by which a party is
precluded from denying any material fact, induced by his words or conduct upon
which a person relied, whereby the person changed his position in such a way that
injury would be suffered if such denial or contrary assertion was allowed.” City of
Tupelo, Mississippi v. McMillin, 192 So. 3d 948, 956 (Miss. 2016) (citations and

15

quotation marks omitted). For the doctrine of equitable estoppel to apply to a
statute of limitations, “the plaintiff must show by a preponderance of the evidence
that (1) it was induced by the conduct of the defendant not to file its complaint
sooner, (2) resulting in the plaintiff's claim being barred by the applicable
limitations, and (3) the defendant knew or had reason to know that such
consequences would follow.” Id. (citation and quotation marks omitted).
“Equitable estoppel becomes a question for the trier of fact when there is
evidence to support a finding that the plaintiff reasonably relied on the actions of
the defendant to his detriment.” Id. (citations and quotation marks omitted). “In
order for a representation to be the basis of an estoppel it must amount to a
representation of material facts as opposed to a representation made as to a matter
of law.” Barnett v. Getty Oil Co., 266 So. 2d 581, 587 (Miss. 1972). Mississippi law
holds that where “the parties were equally informed as to the essential facts or
where the means of knowledge were equally open to them, the courts will not give
effect to estoppel.” Id.
Plaintiff’s Memorandum alleges that Defendants’ counsel “Hazard took the
position that Buckley was duty bound to pursue the appellate process and mitigate
her damages prior to filing suit against defendants.” Pl.’s Mem. [42] at 27.
Plaintiff further asserts that “[i]n reliance on defendants’ representations, by and
through counsel, Buckley in fact changed her position from pursuing a malpractice
action against defendants, to again pursuing an appeal of the judgment of the Trial
Court.” Id. at 28. Viewing the record evidence and inferences in the light most
16

favorable to Plaintiff, Hazard did not represent to Sullivan that Buckley must
pursue an appeal before commencing the malpractice suit. Hazard stated to
Sullivan that Buckley and/or Sullivan must “timely file the Motion for Rehearing”
and that Buckley “has a duty to mitigate damages” by “pursuing the appellate
process.” Hazard Letter to Sullivan [41-12]. Moreover, Plaintiff does not offer any
evidence that Defendants knew or had reason to know that Plaintiff would file the
malpractice suit after the statute of limitations expired.
Even assuming that Hazard represented to Sullivan that Buckley must
appeal before filing her malpractice suit, that representation was made as to a
matter of law, and thus cannot be the basis for equitable estoppel. Though
Sullivan attests that he relied on Hazard’s representations to postpone filing the
malpractice suit, such reliance was unreasonable. Hazard corresponded regarding
a legal issue with Sullivan, a licensed and practicing attorney, and not a layperson
with no knowledge of the law. Lastly, both parties were equally informed as to the
essential facts that form the basis of the malpractice lawsuit. On November 1,
2012, Buckley a received a copy of the October 2, 2012, Mississippi Court of Appeals
opinion. On November 30, 2012, Buckley then informed Sullivan of the appellate
court decision and that she received the opinion. This is insufficient to create a
material question of fact on the issue of equitable estoppel.
Accordingly, Defendants’ Motions [28][37] should be granted.
claims will be dismissed with prejudice.

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Plaintiff’s

III.

CONCLUSION

For the foregoing reasons, the Court concludes that Defendants are entitled
to summary judgment because Plaintiff has not shown that there is a genuine issue
of material fact as to whether the applicable statute of limitations bars Plaintiff’s
claims.
IT IS, THEREFORE, ORDERED AND ADJUDGED that Defendants
Citrin Law Firm, P.C., Andrew Citrin, and Samuel McClurkin, IV’s Motion [28] for
Summary Judgment is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that Defendant
Elizabeth Citrin’s Motion [37] for Summary Judgment is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiff’s claims in
this case are DISMISSED WITH PREJUDICE. All remaining pending Motions
[63][65][67][70] are denied as moot. A separate final judgment dismissing this civil
action with prejudice will be entered pursuant to Federal Rule of Civil Procedure
58.
SO ORDERED AND ADJUDGED, this the 11th day of October, 2017.

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

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