Robert Lehman v. Thomas Payne , 615 F. App'x 172 ( 2015 )

Case: 15-60076 Document: 00513177484 Page: 1 Date Filed: 09/01/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-60076 United States Court of Appeals
Summary Calendar Fifth Circuit
FILED
September 1, 2015
ROBERT C. LEHMAN, Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
THOMAS PAYNE,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:13-CV-250
Before DAVIS, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Robert C. Lehman appeals the district court’s
summary judgment dismissing with prejudice his claim of legal malpractice
against his former attorney, Defendant-Appellee Thomas Payne. The district
court granted summary judgment on two independent grounds: (1) his claim of
legal malpractice is time-barred under the applicable three-year statute of
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 15-60076
limitations, and (2) he cannot prevail on his negligence-based claim because he
has failed to offer any expert testimony in support. “We review the district
court’s grant of summary judgment de novo, construing all facts and evidence
in the light most favorable to the non-moving party.” 1 Applying this standard,
we agree the action is time-barred; we need not reach the alternative ground.
Lehman, who is an attorney himself but is not licensed to practice in
Mississippi, hired Payne in 2009 to represent him in a legal dispute over
property in Mississippi that was potentially subject to a condemnation
proceeding by the Mississippi Department of Transportation. Lehman had
already filed a Louisiana state court action concerning the ownership of the
property against his former business partner, Louis Normand, and various
entities in which Normand was involved. In September 2009, Lehman directed
Payne to file in the Mississippi state court proceeding a notice of lis pendens
relating to the Louisiana lawsuit, which Payne did.
In January 2010, Payne informed him that a cross-claim had been filed
in the Mississippi suit alleging the notice of lis pendens had been filed
frivolously. Payne reportedly informed Lehman that his goal was to have the
cross-claim dismissed on jurisdictional grounds or at least stayed pending
resolution of the Louisiana suit. Payne in fact filed a motion to dismiss on
jurisdictional grounds, and it was set for hearing on April 20, 2010. Lehman
alleges that following the hearing, which Lehman did not attend on Payne’s
advice, Payne essentially told him, in inconclusive terms, that the hearing
covered only the single issue of jurisdiction.
In fact, the hearing concerned the entire cross-claim against Lehman in
addition to the jurisdictional issue. In a June 4, 2010 letter from the
1 Amerisure Mut. Ins. Co. v. Arch Specialty Ins. Co., 784 F.3d 270, 273 (5th Cir. 2015)
(citing EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir. 2009)).
2
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No. 15-60076
Mississippi state court, which Lehman received by fax on June 9, 2010, the
court stated that it had determined that the lis pendens had been filed
maliciously, and it imposed against Lehman sanctions and attorney’s fees (in
excess of $32,000), plus costs and interest. On June 18, 2010, nine days after
receiving this letter, Lehman visited the courthouse and examined the record.
He ordered a transcript of the hearing, which he received in July 2010.
Lehman filed this action asserting a claim of legal malpractice on June
11, 2013. As the district court properly noted, a legal malpractice claim is
subject to a three-year statute of limitations under Mississippi law, running
from the time Lehman “discovered, or by reasonable diligence should have
discovered, the injury.” 2 Thus, the sole relevant question is when Lehman
reasonably should have discovered his injury.
Lehman claims he could not have discovered his injury until he
examined the court record (June 18, 2010) or reviewed the actual transcript of
the hearing (July 2010), either of which would have made this action timely
under the three-year statute of limitations. The district court concluded, on the
other hand, that Lehman either “discovered, or by reasonable diligence should
have discovered, the injury” on June 9, 2010, when he received the letter from
the court fully informing him of the outcome of the hearing, which contradicted
what he claims Payne had told him. We fully agree with the district court’s
reasoning and its conclusion. Because Lehman’s cause of action arose on June
9, 2010, more than three years prior to his filing suit on June 11, 2013, it is
time-barred, and the district court properly dismissed it on summary
judgment. We need not address the alternative ground for dismissal.
AFFIRMED.
2 Evans v. Howell, 121 So. 3d 919, 323 (Miss. Ct. App. 2013).
3