                       IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2002-CT-01313-SCT

JAMES LUVENE

v.

DOROTHY WALDRUP AND MICHAEL COOKE


                                ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                           7/12/2002
TRIAL JUDGE:                                HON. HENRY L. LACKEY
COURT FROM WHICH APPEALED:                  MARSHALL COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    PEARSON LIDDELL
                                            GREGORY C. WEISS
                                            MICHAEL J. HALL
ATTORNEYS FOR APPELLEES:                    MICHAEL D. CHASE
                                            JOHN G. WHEELER
                                            BEVERLY DAVIS BUSKIRK
                                            GRADY F. TOLLISON
NATURE OF THE CASE:                         CIVIL - LEGAL MALPRACTICE
DISPOSITION:                                THE JUDGMENT OF THE COURT OF
                                            APPEALS IS AFFIRMED IN PART AND
                                            REVERSED IN PART, AND THE JUDGMENT
                                            OF THE CIRCUIT COURT IS REINSTATED
                                            AND AFFIRMED - 06/09/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.    James Luvene sued attorneys Dorothy Waldrup and Michael               Cooke    for legal

malpractice in the Circuit Court of Marshall County.   The circuit court granted Waldrup’s and

Cooke’s separate motions for summary judgment, and Luvene appealed. A divided Court of
Appeals affirmed the judgment of the circuit court regarding Waldrup and reversed the

judgment of the circuit court regarding Cooke.            Luvene v. Waldrup, 2004 WL 1662525

(Miss. Ct. App. 2004) The Court of Appeals denied Cooke’s motion for rehearing.

¶2.     Accordingly, Cooke filed a petition for writ of certiorari, and neither Luvene nor

Waldrup have filed a response in opposition to the petition.            We granted the petition for

certiorari and now reverse the Court of Appeals’ judgment as to Cooke.              We hold that the

Court of Appeals erred in reversing the trial judge’s grant of summary judgment to Cooke.

Therefore, we affirm in part and reverse in part the Court of Appeals’ judgment and reinstate

and affirm the judgment of the circuit judge.

                              FACTS AND PROCEEDINGS BELOW

¶3.     James Luvene was employed by Metropolitan Life Insurance Company [MetLife] from

July 1993 until June 1998.            He filed claims with the Equal Employment Opportunity

Commission [EEOC] against MetLife and his former supervisor, Shelby Ware, alleging

discrimination and retaliatory discharge.       The EEOC issued two right-to-sue letters to Luvene

on March 11, 1999, and May 9, 1999.               During this time, Luvene and Waldrup entered into a

contract whereby Waldrup agreed to represent Luvene in his litigation against his former

employer.1

¶4.     Waldrup, who was licensed to practice law in Louisiana, determined that the complaint

had to be filed in Mississippi so she contacted Cooke regarding the representation of Luvene.

Meanwhile, on June 4, 1999, at Waldrup’s direction, Luvene filed a pro se complaint against


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         The trial court granted Waldrup’s motion for summary judgment and the Court of
Appeals affirmed that decision. Since Luvene did not file a petition for writ of certiorari
regarding that decision, there are no issues regarding Waldrup before this Court.

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his former employer in the United States District Court for the Northern District of

Mississippi. On August 26, 1999, Cooke met with Luvene and Waldrup, and Cooke and Luvene

entered into a contract for representation with the understanding that Waldrup would continue

to represent him as well.      Waldrup advised Luvene that she would complete the necessary

paperwork to be admitted pro hac vice to represent Luvene in the matter in Mississippi.

¶5.    Although Cooke acknowledged the deadline by which to serve MetLife with process,

MetLife was not served with process in the district court case. Therefore, on March 22, 2000,

the district court granted MetLife’s motion to dismiss for insufficiency of service of process

and dismissed the case without prejudice. On April 6, 2000, a motion for reconsideration of

the decision was denied.      Luvene contacted Waldrup to inquire about an appeal from that

dismissal, and Waldrup informed him that she could not file the appeal because she would be

out of town. However, Waldrup stated that she would check with Cooke to see if he could file

the appeal but he declined to do so.      As a result of the dismissal of his case against MetLife

and Ware due to the failure of his attorneys to timely serve the named defendants, on August

1, 2000, Luvene filed a complaint against Cooke and Waldrup for legal malpractice.

¶6.    In October 2001, Waldrup filed a motion for summary judgment and included her

affidavit stating that she had not deviated from the standard of care.             Although Luvene

responded to Waldrup’s motion, he did not include the affidavit of an expert witness in support

of his legal malpractice claims.     Subsequently, Cooke filed a motion for summary judgment

on December 31, 2001.        On March 8, 2002, the trial court conducted a hearing regarding

Waldrup’s motion, and the parties made arguments regarding the necessity of expert opinion




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in support of a legal malpractice claim.       The circuit court took Waldrup’s motion under

advisement.

¶7.     When Luvene finally responded to Cooke’s motion for summary judgment on March

25, 2002, he still failed to include an expert’s affidavit. The circuit court scheduled a hearing

regarding Cooke’s motion for June 6, 2002. On June 3, 2002, Luvene filed the affidavit of

Charles Yoste, a licensed Mississippi attorney, to support his argument that genuine issues of

material fact existed.

¶8.     In his opinion and order entered on July 15, 2002, the circuit judge granted both

Waldrup’s and Cooke’s motions for summary judgment. The opinion stated, in pertinent part

that:

        In order for Plaintiff to succeed in his claim against Cooke, it is incumbent upon
        Plaintiff to prove that, but for his attorney’s negligence, he would have been
        successful in the prosecution of his claims against MetLife and/or Shelby Ware
        in the United States District Court action filed in the Northern District of
        Mississippi (the underlying action). This is the genuine issue of material fact.
        Mr. Yoste’s affidavit fails to address this issue in any way. From his affidavit
        it is assumed he reviewed the pleadings, allegations and actions in the U.S.
        District Court action but he never concludes that, but for the negligence of his
        attorneys, Plaintiff, James Luvene, would have been successful. Therefore, the
        affidavit of Mr. Yoste is fatally defective and deficient. As a result of the
        dismissal of his case against MetLife and Ware due to the failure of his
        attorneys to timely serve the named defendants, on August 1, 2000, Luvene filed
        a complaint against Cooke and Waldrup for legal malpractice.

        That by failing to meet his obligation to provide evidence or opinion, by affidavit
        or otherwise, at the hearing of Cooke’s Motion for Summary Judgment, that
        Cooke’s negligence was the cause of his unsuccessful result in the underlying
        action, Plaintiff has failed to prove that any genuine issue of material fact exists
        as to causation in his claim against Cooke.




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(Emphasis in original).   The Court of Appeals reversed the circuit court’s decision regarding

Cooke and remanded the matter for further proceedings.               The Court of Appeals stated, in

pertinent part, that:

        ¶ 26. In order for Luvene to succeed in his claim of legal malpractice against
        Cooke, it is vitally important that he prove: (1) the existence of a lawyer-client
        relationship, (2) negligence on the part of the lawyer in handling his client’s
        affairs entrusted to him, and (3) proximate cause of the injury which is typically
        stated that, but for his attorney’s negligence, he would have been successful in
        the prosecution of his claim. Wilbourn, 687 So. 2d at 1215. The burden of
        proof required to prove legal malpractice as established in Wilbourn is what the
        plaintiff is to prove by a preponderance of the evidence throughout the course
        of trial. The burden of proof required to get beyond summary judgment is not
        as steep as it is at trial. It is true the affidavit alone does not rise to a level
        sufficient to prove by a preponderance of the evidence that but for Cooke’s
        negligence Luvene would have been successful in his claim. However, the
        affidavit of Yoste does broadly cover the three requirements of Wilbourn and
        therefore does create a question of fact to be determined by a trier of fact.

Luvene, 2004 WL 1662525 at 5 (citing Wilbourn v. Stennett, Wilkinson & Ward, 687 So.

2d 1205 (Miss. 1996)).

¶9.     Cooke filed a petition for writ of certiorari which was granted by this Court.         In his

petition as well as his brief, Cooke argues that the Court of Appeals’ decision, which reversed

the circuit court’s granting of his motion for summary judgment, was in conflict with prior

decisions of this Court as well as the Court of Appeals. We agree.

                                            ANALYSIS

¶10.    The issue before this Court is whether Yoste’s affidavit was sufficient to overcome

Cooke’s motion for summary judgment. This Court has consistently held that:

        To recover a legal malpractice case in this state, it is incumbent upon the
        plaintiff to prove by a preponderance of evidence the following: (1) Existence
        of a lawyer-client relationship; (2) Negligence on the part of the lawyer in
        handling his client’s affairs entrusted to him; and (3) Proximate cause of the

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        injury. Hickox v. Holleman, 502 So. 2d 626, 633 (Miss. 1987). As to the
        second factor, a lawyer owes his client the duty to exercise the knowledge, skill,
        and ability ordinarily possessed and exercised by the members of the legal
        profession similarly situated. Failure to do so constitutes negligent conduct on
        the part of the lawyer. Id. at 634. As to the third essential ingredient, the
        plaintiff must show that, but for their attorney’s negligence, he would have
        been successful in the prosecution or defense of the underlying action. See
        Thompson v. Erving’s Hatcheries, Inc., 186 So. 2d 756 (Miss. 1966); Nause
        v. Goldman, 321 So. 2d 304 (Miss. 1975); Hickox v. Holleman, infra.

Wilbourn, 687 So. 2d at 1215 (emphasis added). This Court has also consistently held that in

order to survive summary judgment:

        [T]he non-moving party must produce specific facts showing that there is a
        genuine material issue for trial. M.R.[C].P. 56(e); Frutcher v. Lynch Oil Co.,
        522 So. 2d 195, 199 (Miss. 1988). The non-moving party’s claim must be
        supported by more than a mere scintilla of colorable evidence; it must be
        evidence upon which a fair-minded jury could return a favorable verdict.
        Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
        L.Ed.2d 202 (1986).

Wilbourn, 687 So. 2d at 1213-14.              Expert testimony is ordinarily necessary to support an

action for legal malpractice. Dean v. Conn, 419 So. 2d 148, 150 (Miss. 1982).

¶11.    This Court finds that there is sufficient evidence in the record to support the existence

of the lawyer-client relationship, and this Court also finds that Yoste’s affidavit provided

sufficient information regarding Cooke’s alleged negligence.            However, the circuit court

correctly found that Yoste’s affidavit was fatally defective and deficient regarding the issue of

causation.   This affidavit was, in fact, a broad summarization of the three required elements of

a legal malpractice claim.     The affidavit failed to set forth “specific facts” and certainly did not

provide more than “a mere scintilla of colorable evidence.” Accordingly, the Court of Appeals

erred in reversing the decision of the circuit court.




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¶12.     Yoste’s affidavit stated that he had reviewed the material provided by Luvene regarding

the federal court action. As to the element of causation, Yoste’s affidavit stated:

         7) That affiant is of the opinion, and will testify at the trial of this matter, that
         due to the actions of both of the defendants in this matter, Dorothy Waldrup and
         Michael Cooke, the plaintiff, James Luvene suffered injury and damages, which
         directly resulted from, and were directly caused by, negligence committed by
         each defendant in handling the affairs of James Luvene which were entrusted to
         them, and affiant is of the opinion that plaintiff is entitled to both compensatory
         and punitive damages in this matter.

Yoste’s affidavit is silent on the issue of whether Luvene would have been successful in the

federal court action, had Cooke not been negligent. Luvene did not present any other evidence

to support his claim that Cooke’s negligence proximately caused an injury. Therefore, Yoste’s

affidavit was insufficient for the purpose of showing that a question of fact existed.           The

affidavit is defective because it failed to provide a basis for the expert’s broad conclusion that

Cooke’s negligence was the cause of Luvene’s failure to prevail in federal court. We find that

Luvene’s malpractice claim fails as a matter of law because he failed to present any evidence

as to the underlying claim sufficient to create a genuine issue of fact, thereby avoiding

summary judgment. The affidavit of Yoste was fatally defective as correctly noted by the trial

judge. We hold that due to this failure, as well as his failure to show proximate cause, the

Court of Appeals erred and Cooke is entitled to summary judgment as determined by the trial

court.

                                            CONCLUSION

¶13.     For these reasons, we affirm in part and reverse in part the judgment of the Court of

Appeals and reinstate and affirm the judgment of the circuit court.




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¶14. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND
REVERSED IN PART AND THE JUDGMENT OF THE CIRCUIT COURT IS
REINSTATED AND AFFIRMED.


     WALLER AND COBB, P.JJ., EASLEY, CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN PART, AND DISSENTS IN
PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.




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