Patricia Jones Spann, Individually and on Behalf of All Wrongful Death Beneficiaries of Timothy Spann, Deceased v. Gerald J. Diaz, Jr., P.A., Formerly d/b/a Cherry, Givens, Peters, Lockett & Diaz and/or Diaz, Lewis & Giddens, PLLC

Summary

The Supreme Court of Mississippi affirmed summary judgment dismissing Patricia Jones Spann’s legal-malpractice action against Gerald J. Diaz, Jr., P.A. The court held that Diaz did not waive the statute-of-limitations defense by raising it in his answer and filing a summary-judgment motion within the scheduling deadline. The court also concluded that fraudulent concealment did not toll the limitations period because Spann had sufficient information from the prior appellate proceedings to discover the alleged malpractice.

Holdings

1. Diaz did not waive the statute-of-limitations defense because he asserted it in his answer and again in his answer to the amended complaint, and his seventy-one-day delay in filing the summary-judgment motion was neither substantial nor unreasonable under the circumstances.
2. The fraudulent-concealment doctrine did not toll the statute of limitations because Spann had the information necessary to discover and pursue her legal-malpractice claim no later than May 23, 2002, when rehearing was denied in the underlying Rawson appeal, and the relevant information was contained in public court records.
3. Summary judgment and dismissal with prejudice were proper because Spann's legal-malpractice action was barred by the statute of limitations.

Questions Presented

1. Whether Diaz waived the statute-of-limitations affirmative defense under MS Credit Ctr., Inc. v. Horton by failing to pursue it in a dispositive motion until July 2006 while participating in discovery.
2. Whether the statute of limitations on Spann's legal-malpractice claim should have been tolled under the fraudulent-concealment doctrine.
3. Whether the circuit court properly granted summary judgment and dismissed Spann's legal-malpractice action as time-barred.

Disposition

affirmed