IN THE SUPREME COURT OF MISSISSIPPI

NO. 2003-CP-01472-SCT

DEBORAH M. CHAMPLUVIER

v.

SIDNEY F. BECK, JR.

DATE OF JUDGMENT: 05/9/2003

TRIAL JUDGE: HON. GEORGE B. READY

COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: PRO SE

ATTORNEY FOR APPELLEE: PRO SE

NATURE OF THE CASE: CIVIL - LEGAL MALPRACTICE

DISPOSITION: AFFIRMED - 12/09/2004

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

RANDOLPH, JUSTICE, FOR THE COURT:

¶1. Deborah M. Champluvier filed a legal malpractice action against her former attorney,

Sidney F. Beck, Jr., on March 14, 2003, in the Circuit Court of DeSoto County. Beck filed a

motion to dismiss, asserting that the statute o f limitations had run. The circuit court granted

summary judgment in favor of Beck Champluvier filed notice of appeal with this Court on

June 23, 2003.

FACTS

Facts of the underlying case that led to the malpractice action2

¶2. On April 6, 1999, Champluvier’s former business partner, secured a temporary

restraining order against Champluvier, ordering her to turn ov er all records of her business,

prepare an accounting, and all ow representatives of the estate to access the business.

Champluvier entered into a contract with Beck on April 9, 1999, wherein Beck was to

represent Champluvier in the accounting.

¶3. An Agreed Order fo r Preliminary Injunction was entered April 12, 1999, (“April

Order”) ordering Champluvier to provide immediate access to the records of the business and

to file an inventory an

d an accounting. This accounting was to be filed by May 31, 1999. On

June 8 , 1999, Beck filed an accounting on behalf of Champluvier, which was ruled to not

satisfy the requ

irements for the accounting in the April Order. On June 11, 1999, an Agreed

Order Granting Judicial Dissolution was entered directing Champluvier to comply with the

prior orders, including filing an accounting that would comply with the April Order.

¶4. By the end of June 1999, Beck ha d failed to file a second accounting, and an order

citing Champluvier for contempt was entered, giving her until July 19, 1999, to comply with

the order for the accounting. Beck never filed a second accounting, and on July 19, 1999,

Champluvier was found in contempt and incarcerated for 28 hours. After a proper accounting

was filed, Champluvier was released from incarceration.

¶5. Soon after, on August 16, 1999, Champluvier deli vered a letter to Beck informing him

that she was terminating his employment as her attorney. On August 20, 1999, Beck filed a

Motion to Withdraw. Champluvier filed a complaint against Beck with the Mississippi Bar

on September 1, 1999. The order that discharged Beck from representing Champluvier was

signed by the court on August 22, 2000.3

Facts of the case sub judice

¶6. On March 14, 2003, Champluvier filed this suit against Beck where she claimed

damages for

breach of contract, breach of fiduciary duty, mental anguish, overt acts causing

the closing of her business, and punitive dama ges. Attached to her complaint was a copy of an

Opinion and Judgment from the Committee on Professional Responsibility of the Mississippi

Bar. Beck then filed a Motion to Dismiss alleging that the statute of limitations had run and

also filed a Motion to Seal File. Beck filed the Motion to Dismiss on March 25, 2003 and put

Champluvier on notice that the Mo tion would be heard by the Court on May 9, 2003. Attached

to the Motion to Dismiss was a letter that Champluvier had written Beck, wherein she

terminated his employment. Champluvier then filed a Response and Objection to the Motion

to Dismiss wherein she attached the Order allowing Beck to withdraw as her attorney. The

court granted Beck’s Motion to Dismiss and also granted Beck’s Motion to Seal File.

¶7. Champluvier raises the following issues on appeal:

I. Whether

the Circuit Court was correct in finding that the statute of limitations

had run on her claim?

II. Whether it was error for the Circuit Court to convert a Motion to Dismiss into

a Motion for Summary Judgment?

III. Whether it was err or for the Circuit Court to grant Beck’s Motion to Seal File?

ANALYSIS

I. Statute of Limitations

¶8. Champluvier argues that the statute of limitations had not run on her claim against her

attorney. She argues that the statute of limitations did not start running until August 22, 2000,

because this is the day that the chancery court entered the order al lowing Beck to withdraw as

her attorney. Champluvier argues that under this theory, she had until August 22, 2003, to file4

the complaint, and because s he filed the complaint on March 14, 2003, her case is not time

barred.

¶9. Beck argues that the statute of limitations had run and that the complaint against him is

time barred. Beck argues that the statute of limitations began running when she terminated his

employment on August 16, 1999, o r at the latest, when she filed a complaint with the

Mississippi Bar on September 1, 1999.

¶10. The application of a st atute of limitations is a question of law to which the de novo

standard of review applies. Sarris v. Smith , 782 So. 2d 721, 723 (Miss. 2001).

¶11. Th

is Court finds that the complaint filed in this civil action against Beck on March 14,

2003, was fi

led after the statute of limitations had run. Therefore, Champluvier’s action is

time barred. This Court has held that, “[t]he statute of limitations in a legal malpractice action

properly begins to r

un on the date the client learns or through the exercise of reasonable

diligence should learn of the negligence of his lawye r.” G reenline Equip. Co. v. Covington

County Bank

, 873 So. 2d 950, 956 (Miss. 2002 ) (citing S mith v. Sneed

, 638 So. 2d 1252,

1253 (Miss. 1994)). The statute of limitations period for claims of legal malpractice is three

year s. Miss. Code Ann. § 15-1-49 (2004). Champluvier terminated Beck on August 16, 1999,

and filed a bar complaint on September 1, 1999. Champluvier either knew or should have

known of her lawyer’s deficient performance by this time. In fact, Champluvier, “through the

exercise of reasonable diligence,” should have known that Beck did not com ply with the

Court’s order that the accounting be filed on July 19, 1999.

¶12. Champl

uvier argues that because the order of the chancery court did not release Beck

as her attorney until August of 2000, the statute of limitations did not begin to run until th a t5

time. However, this Court stated in S tevens v. Lake

, 615 So. 2d 1177 (Miss. 1993), that, “the

inquiry is not whether an attorney-client relationship sti ll exists, but when the representation

of the specifi c matter terminated.” I d. at 1182 (quoting 2 Mallen & Smith, Legal Malpractice

§18.12 at 115 (3d ed. 1989)). In S tevens

, this Co urt found that the plaintiff was time barred

from bring

ing her legal malpractice action. Id. The attorney in S tevens had worked on the

trust matter until 1980, and the n continued to represent the client on other matters until 1987.

Id. This Court found that continuing to represent the client on other matters did not toll the

statute of limitations for a malpractice action relating to his representation of the trust. Id.

¶13. Here, Beck did not provide any services to Champluvier following the termination letter

of August 16, 1999, so any misconduct would have occ u rred prior to this date. The order

allowing Beck to withdraw was entered over a year after Champluvier terminated Beck’s

employment. Based on the facts of this case, Champluvier should have reasonably known of

Beck’s alleged deficient performance prior to this order. There is no evidence she did not

k now of Beck’s deficient performance. Champluvier knew Beck had failed to file the

accounting, was placed in co ntempt based on these actions, and thereafter filed a professional

misconduct complaint. By filing the complaint with the Professional Conduct Committee

Champluvier obviously thought Beck’s representation was deficient.

¶14. A similar decision is Hymes v. McIlwain

, 8 56 So. 2d 416 (Miss. Ct. App. 2003).

Hymes was sentenced to thirty-five years in prison, and in 1995, pursued a post-conviction

relief based o n ineffective assistance of counsel. I d. Hymes conviction was eventually

vacated in 2000 and thereafter he filed a professional malpractice suit against his attorneys.6

Id. The Court of Appeals ruled that, “The petition for post-conviction relief was filed in 1995,

although it was not ultimately successful until 2000. At the very latest, the statute of

limitations began to run in 1995 when it became apparent Hymes knew of his attorney’s

deficient performance. The filing of this civil suit comes too late.” Id . at 420.

¶15. Champluvier was held in contempt of court and incarcerated for Beck’s mistakes in not

filing the accounting. She thereafter terminated him and filed a complaint with the Bar

regarding his actions. It is therefore reasonable to conclude that Champluvier should have

known or kne w of Beck’s deficient performance at the time of her terminating his

employment, or at the latest, at the time she filed the complaint with the Bar.

¶16. The circuit court was correct in holding that the three-year statute of limitations barred

Champluvier’s complaint and action.

II. Notice

¶17. Champluvier argues t hat she should have been granted the appropriate notice that the

motion to dismiss was to be converte d into a motion for summary judgment. S ee Jones v.

Regency Toyota, Inc.

, 798 So. 2d 474 (Miss. 2001). However, this Court finds that

Champluvier is procedurally barred from raising this issue on appeal. “The language of Rule

12 granting a respondent to a motion to dismiss subsequently converted to a summary

judgment motion an opportunity to present further material is not se lf-executing. A litigant

desiring to avail herself of the right to present more evidentiary material has an affirmative

duty to timely r aise the issue with the trial court or be deemed to have waived objection to the

court proceeding on the motion.” K oestler v. Mi ssissippi College, 749 So.2d 1122, 11257

(Miss. Ct. App. 19 99). Champluvier did not raise this issue with the trial court, and as such,

this issue is procedurally barred.

CONCLUSION

¶18. Because issues I and II are dispositive of this case, Champluvier’s th ird issue is not

discussed. For the foregoing reasons, the judgment of the DeSoto County Circuit Court is

affirmed.

¶19. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, GRAVES AND DICKINSON,

JJ., CONCUR. DIAZ AND CARLSON, JJ., NOT PARTICIPATING

.