IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60569

Summary Calendar

LEE F. KENNEDY, 

 Plaintiff - Appellant

v.

JEFFREY L. HALL; BRYAN NELSON, P.A., 

 Defendants - Appellees

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 2:15-CV-135

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Plaintiff Lee F. Kennedy appeals the district court’s grant of Defendants’

motion for summary judgment in this legal malpractice suit against attorney 

Jeffrey L. Hall. Kennedy complains that attorney Hall negligently represented 

her in an underlying suit in which Kennedy was sued on a guaranty agreement 

following default on a note. The district court held that Plaintiff failed to raise 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

February 17, 2017

Lyle W. Cayce

Clerk

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an issue of material fact that but for the Defendants’ negligence in the 

underlying action she would have been successful in the defending against the

suit to recover on Kennedy’s personal guaranty. Mississippi law, which 

controls in this case, requires that Kennedy show that but for her attorneys’ 

negligence, she would have been successful in the underlying action. Kennedy

failed to make that showing, therefore, we AFFIRM the district court’s 

judgment and DENY Defendants’ motion to strike a portion of Kennedy’s reply 

brief. 

I. 

This legal malpractice suit arises from an underlying action brought by

HCB Financial Corporation (“HCB”) against Kennedy.1 There, HCB filed suit

against Kennedy to collect on Kennedy’s personal guaranty, guaranteeing 

payment of a promissory note that was in default.2 HCB filed a motion for 

summary judgment, which the district court granted, holding that Kennedy 

failed to raise an issue of material fact regarding her liability on her personal 

guaranty.3 In the underlying action, the trial court entered a judgment against 

Kennedy for $2,019,495.82.4

 

1 HCB Fin. Corp. v. Kennedy, No. 1:10cv559HSO-JMR, 2013 WL 12090332, at *1 (S.D. 

Miss. Mar. 14, 2013), aff’d, 570 F. App’x 396 (5th Cir. 2014). In sum, Kennedy, along with 

several other investors, purchased property along the Gulf Coast of Mississippi after 

Hurricane Katrina to develop it. HCB Fin. Corp., 570 F. App’x at 398. To finance the 

purchase, the investors obtained a $7,438,400 loan from Double A Firewood and in exchange 

the investors executed a promissory note and deed of trust encumbering the property. Id. 

Each investor also executed personal guaranty agreements for the full payment of the note 

plus interest, costs, and attorney’s fees incurred in collecting the payment. Id. Upon default, 

Double A initiated foreclosure proceedings. HCB Fin. Corp., 2013 WL 12090332, at *1. 

Central Progressive Bank purchased the loan from Double A. Id. When Central Progressive 

was closed and liquidated, HCB was assigned the note and sought to recover the deficiency 

owed by Kennedy based on her personal guaranty. Id. 2 Id. 

3 Id. at *5. 4 Id.

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Kennedy filed the instant malpractice suit against her attorney and his 

former law firm, alleging Defendants’ negligence caused the adverse judgment. 

II. 

We review a district court’s grant of summary judgment de novo, 

applying the same standard as the district court.5

III. 

Defendants assert that Kennedy cannot prove that their alleged 

negligence was the proximate cause of her injuries. Under Mississippi law, 

“[a] legal malpractice case requires proof by a preponderance of the evidence 

the following: (1) existence of a lawyer-client relationship; (2) negligence on the 

part of the lawyer in handling the affairs entrusted to him; (3) proximate cause; 

and (4) injury.”6 “[T]o prove proximate cause[,] the plaintiff must show that 

but for his attorney’s negligence he would have been successful in the 

prosecution or defense of the underlying action.”7 We agree with the district 

court that Kennedy failed to raise a genuine issue of material fact tending to 

show this critical element of her cause of action. 

The district court correctly points out that Kennedy only argues that her 

attorney was negligent in not urging the court to credit any sums Kennedy 

owed under the guaranty by the fair market value of property given as 

collateral for the loan. 

The district court correctly held that the personal guaranty Kennedy 

executed waives any such right of offset. The guaranty states that the 

guarantor “waives any right . . . [to] require that resort be had to any security 

or to any balance of any deposit account or credit on the books of the 

 

5 Stanley v. Trinchard, 500 F.3d 411, 418 (5th Cir. 2007) (citing Cutrera v. Bd. of 

Supervisors of La. State Univ., 429 F.3d 108, 110 (5th Cir. 2005)). 

6 Century 21 Deep S. Props., Ltd. v. Corson, 612 So. 2d 359, 372 (Miss. 1992) (citing 

Hickox v. Holleman, 502 So. 2d 626, 633 (Miss. 1987)). 

7 Id. (citing Hickox, 502 So. 2d at 634). 

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Beneficiary in favor of the Debtor of [sic] any other person.”8 It has long been 

the law in Mississippi that with a guaranty of payment, the guarantor is 

immediately liable upon the debtor’s default.9 The creditor does not have to 

institute any legal proceedings against the debtor or pursue collateral before 

suing the guarantor.10 The only “prescribed condition” to suing on a personal 

guaranty is default on the primary debt.11 So any evidence Kennedy could 

have presented in the underlying action regarding the fair market value of 

collateral properties would not have changed the amount of the final judgment 

rendered against her. 

Because Kennedy failed to put forth any evidence to show that but for 

Defendants’ negligence, she would have been successful in defending against 

the underlying suit, we AFFIRM the judgment of the district court. 

Defendants moved to strike portions of Kennedy’s reply brief that relies 

on judicial estoppel. We DENY that motion as moot. 

 

8 Continuing Personal Guaranty, signed by Lee F. Kennedy, Sept. 28, 2006. 

9 Bosarge v. LWC MS Props., LLC, 158 So. 3d 1137, 1143 n.5 (Miss. 2015). 

10 Brown v. Hederman Bros., LLC, No. 2014-CA-01553-COA, 2016 WL 2862363, at *4 

(Miss. Ct. App. May 17, 2016) (quoting Wren v. Pearce, 12 Miss. 91, 98 (1845)). 

11 Id. (citing Woods-Tucker Leasing Corp. v. Kellum, 641 F.2d 210, 215 n.7 (5th Cir. 

1981)). 

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