     Case: 14-60733      Document: 00513046765         Page: 1    Date Filed: 05/18/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                    No. 14-60733                                 FILED
                                  Summary Calendar                           May 18, 2015
                                                                            Lyle W. Cayce
                                                                                 Clerk
ROBERT LEHMAN,

              Plaintiff - Appellant

v.

BYRD & WISER; NICHOLAS VAN WISER,

              Defendants - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 1:13-CV-202


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Robert Lehman appeals the district court’s order
granting summary judgment in favor of Defendants–Appellees Byrd & Wiser
and Nicholas Van Wiser. The district court granted summary judgment on
Lehman’s legal negligence action because it determined that the claim was




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60733
barred by the applicable statute of limitations. For the following reasons, we
AFFIRM.
           I.   FACTUAL AND PROCEDURAL BACKGROUND
      Robert Lehman, a Louisiana attorney, hired Nicholas Van Wiser to
represent him in a lawsuit involving a contractual dispute that he hoped to file
in Mississippi. In July 1999, Wiser filed a complaint in the Chancery Court of
Hancock County, Mississippi (the “Chancery Court Action”) on behalf of
Lehman and two other plaintiffs. The defendants in the Chancery Court
Action filed an answer on September 28, 1999. In the months following the
filing of the complaint in Chancery Court, Lehman stressed to Wiser the need
for “immediate and forceful measures.” After the defendants in the Chancery
Court Action failed to satisfactorily respond to discovery requests, Wiser filed
a Motion to Compel Discovery on January 24, 2000.
      Apparently unsatisfied with Wiser’s representation up to this point,
Lehman sent a letter to Wiser on March 1, 2000 (the “March 1st Letter”). The
letter states that Lehman had “attempted to contact [Wiser] repeatedly by
telephone but . . . none of [the] attempts [were] successful and [the] calls
remain unreturned.” The letter further states that Lehman had “received
virtually no information on the status of [the Chancery Court Action]” and that
the “situation of no progress or communication seems to have deteriorated
rather than improved.” The letter notes that the “crucial need to act quickly
was stressed over and over,” when Wiser was hired. Finally, the letter makes
clear that Lehman was “unaware of any aggressive action which has been
taken to protect our interests” and that “[a]ny advantage which could have
been obtained by having a hearing conducted . . . has been irrevocably lost.”
      Wiser does not appear to have directly responded to the allegations
contained in the March 1st Letter. Instead, Wiser sent Lehman on March 2,
2000, correspondence enclosing discovery responses from the defendants in the
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                                 No. 14-60733
Chancery Court Action. Next, on March 13, 2000, Wiser sent Lehman a letter
notifying him of a hearing on a Motion to Compel Discovery responses. Finally,
on April 4, 2000, Wiser sent a letter to Lehman enclosing a copy of
interrogatory answers submitted by the defendants.         The record does not
reflect any further communication between Lehman and Wiser for nearly ten
years. The docket in the Chancery Court Action indicates that no further
recorded action was taken in the case after April 5, 2000.
      On March 29, 2010, Lehman sent Wiser a letter noting that Wiser had
“been representing [Lehman and the co-plaintiff] in connection with the
[Chancery Court Action].” The letter states that Lehman and his co-plaintiff
had “not received any communications from you in quite a long time.” The
letter notes that they would “like to move this matter to a conclusion” and
requests that Wiser “advise what we need to do to have this case set for trial.”
On April 28, 2010, Lehman sent another copy of his March 29, 2010 letter to
Wiser. Wiser did not reply to either communication.
      On July 1, 2010, Lehman filed a complaint against Wiser with the
Mississippi Bar alleging that Wiser had refused to communicate with him, had
neglected the case, and had failed to protect his rights. On July 30, 2010, Wiser
filed an answer with the Mississippi Bar, which responded to the allegations
made by Lehman and noted that his file on the Chancery Court Action “had
been closed for some time.” The Mississippi Bar ultimately dismissed the
complaint made against Wiser.
      On April 26, 2013, Lehman filed a complaint in the United States
District Court for the Southern District of Mississippi, alleging that Wiser and
his law firm, Byrd & Wiser, had breached “a duty to exercise the skill and
knowledge ordinarily possessed by attorneys” by failing to provide competent
representation and by breaching their duties of loyalty and trust.           On
September 16, 2014, the district court granted the Appellees’ Motion for
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                                    No. 14-60733
Summary Judgment on the basis of Lehman’s failure to bring the action within
the applicable three-year statute of limitations period.          Lehman timely
appealed.
                       II.   STANDARD OF REVIEW
      This court reviews a district court’s grant of summary judgment de novo,
applying the same standard that was applied by the district court below.
Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014).
Summary judgment is proper “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). “A genuine dispute as to a material fact
exists ‘if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.’” Rogers, 755 F.3d at 350 (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). Summary judgment may not be defeated
by “conclusory allegations, unsubstantiated assertions, or only a scintilla of
evidence.” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (internal
quotation marks omitted).
                             III.    DISCUSSION
      In Mississippi, the statute of limitations for legal negligence actions is
contained in Miss. Code Ann. § 15-1-49. Smith v. Sneed, 638 So. 2d 1252, 1254
(Miss. 1994). That statute provides that “[a]ll actions for which no other period
of limitation is prescribed shall be commenced within three (3) years next after
the cause of such action accrued, and not after.” Miss. Code Ann. § 15-1-49.
“[T]he statute of limitations in a legal malpractice action properly begins to
run on the date the client learns or through the exercise of reasonable diligence
should learn of the negligence of his lawyer.” Smith, 638 So. 2d at 1253; see
also Channel v. Loyacono, 954 So. 2d 415, 421 (Miss. 2007) (reaffirming that
the statute of limitations begins to run in a legal negligence action when “the
client learns or through the exercise of reasonable diligence should learn of the
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                                      No. 14-60733
negligence of his lawyer” (internal quotation marks omitted)). A potential
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 v. Diaz, 987 So. 2d 443, 450 (Miss. 2008).
       After a review of the record, we hold that the district court was correct
in determining that Lehman’s legal negligence action is barred by the statute
of limitations. Lehman filed his lawsuit in the district court in April 2013, over
thirteen years after receiving the final communication from Wiser which
related to a routine discovery matter. Moreover, he waited longer than three
years to file a lawsuit after he wrote Wiser in March 2010 and failed to receive
a response. If Lehman had exercised any amount of reasonable diligence he
would have learned that Wiser, despite remaining engaged as his attorney,
had stopped actively pursuing the Chancery Court Action. The March 1st
Letter makes clear that at the point it was sent Lehman had “received virtually
no information on the status of [the] case,” and that “[t]he situation of no
progress or communication seems to have deteriorated rather than improved.”
The March 1st Letter indicates that Lehman believed that Wiser had caused
him and his co-plaintiff in the Chancery Court Action to irrevocably lose “[a]ny
advantage which could have been obtained by having a hearing conducted”
quickly. Given Lehman’s appraisal of Wiser’s representation in March 2000,
we hold that Lehman, through the exercise of reasonable diligence, should
have learned of Wiser’s alleged negligence far before––and certainly at least
three years before––he brought this action. 1



       1 Because we hold, as a matter of law, that an exercise of reasonable diligence would
have alerted Lehman to Wiser’s potential negligence at least three years before the statute
of limitations period had run, we need not determine exactly when Lehman should have been
aware of Wiser’s negligence.
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                                 No. 14-60733
       The fact that Lehman heard nothing from Wiser after the April 4, 2000
correspondence sent by Wiser further supports our holding. This is especially
so because Lehman is an attorney. Given that Lehman made clear in the
March 1st Letter that he had previously “stressed over and over” the “crucial
need to act quickly,” a complete lack of communication regarding the case after
April 2000 should have placed Lehman on notice that Wiser may have
committed the tort of legal negligence. If Lehman had conducted even the most
perfunctory of investigations, he would have been alerted to the possibility that
Wiser had engaged in legal negligence. However, there is no evidence that
Lehman used any sort of reasonable diligence to inquire into his attorney’s
potential negligence during the period between March 1, 2000, when he sent
his first letter, and March 2010, when he sent a letter seeking to have the case
set for trial.
       Lehman argues that because Wiser never formally withdrew as his
attorney, he was entitled to reasonably believe that Wiser was acting in his
best interest, despite any lack of communication. Yet this argument fails to
reconcile Lehman’s concern with Wiser’s representation as evidenced in the
March 1st Letter, and Lehman’s failure to engage in any diligence during the
period between April 2000 and March 2010. Lehman’s failure to inquire with
Wiser during this ten year period shows that Lehman did not exercise the due
diligence required by Mississippi law that would have alerted him to Wiser’s
potential legal negligence. Our conclusion is not changed by the fact that Wiser
sent Lehman three communications regarding discovery matters in March and
April 2000.      Regardless of whether this correspondence ameliorated the
concerns Lehman expressed in the March 1st Letter, the complete lack of
communication regarding the Chancery Court Action after April 2000 should
have alerted Lehman to the need to inquire further with Wiser about the case.


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                                 No. 14-60733
Accordingly, we hold that Lehman’s failure to inquire further was a failure to
exercise reasonable diligence for purposes of Miss. Code Ann. § 15-1-49.
                           IV.    CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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