IN THE SUPREME COURT OF MISSISSIPPI

NO. 2014-CA-01488-SCT

BOBBY LEON GIBSON

v.

WILLIAMS, WILLIAMS & MONTGOMERY, P.A.

AND JOSEPH H. MONTGOMERY

DATE OF JUDGMENT: 09/11/2014

TRIAL JUDGE: HON. HOLLIS McGEHEE

TRIAL COURT ATTORNEYS: CHUCK McRAE 

SETH C. LITTLE

JAMES G. WYLY, III 

COURT FROM WHICH APPEALED: FORREST COUNTY CHANCERY COURT

ATTORNEYS FOR APPELLANT: SETH C. LITTLE 

CHUCK McRAE 

CHRISTOPHER A. BAMBACH

ATTORNEYS FOR APPELLEES: JAMES G. WYLY, III 

CHRISTINE MALISHKA BOCEK 

NATURE OF THE CASE: CIVIL - WILLS, TRUSTS, AND ESTATES

DISPOSITION: REVERSED AND REMANDED - 03/10/2016

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE DICKINSON, P.J., LAMAR AND COLEMAN, JJ.

DICKINSON, PRESIDING JUSTICE, FOR THE COURT:

¶1. Bobby Leon Gibson (“Bobby”) filed a legal-malpractice action against Joe

Montgomery and his law firm, Williams, Williams and Montgomery, P.A. (“WWM”),

alleging wrongful conduct in connection with the administration of his late wife’s estate. 

The trial judge granted summary judgment to Montgomery and WWM. We reverse and

remand.
FACTS AND PROCEDURAL HISTORY

¶2. Our standard of review for an appeal of a summary judgment is de novo, and we

review the facts in the record in the light most favorable to the nonmoving party,

1 who in this

case is Bobby. Accordingly, we set forth the following factual background in the light most

favorable to Bobby, giving him the benefit of all inferences favorable to him.

¶3. On March 29, 2009, a conservatorship was created for Bobby’s wife, Deborah Miles

Gibson (“Debbie”). The court appointed Debbie’s brother, Michael Miles (“Michael”), as

conservator. In connection with the petition to appoint conservator, Bobby signed a

document entitled “Waiver of Process and Joinder” in which Bobby agreed “that this action

may be heard and disposed of without further notice to [me].”

¶4. During the eighteen months that followed, Michael expended $238,371.41 of

Debbie’s funds, leaving a balance of just $4, 036.40 in the conservatorship account. And in

violation of a requirement contained in the Letters of Conservatorship, Michael failed to

deliver an inventory of Debbie’s estate within three months.2

¶5. Debbie passed away on September 8, 2010. Her Last Will and Testament named the

following beneficiaries: her husband Bobby, her son Miles Smith, Beth Ann McClendon,

Elizabeth Minter, BobbyLeon Gibson III, and Michael Tidwell. Under the terms of the will,

Bobby was to receive three real estate properties, the remaining balance of two bank

1

See Burleson v. Lathem, 968 So. 2d 930, 932 (Miss. 2007); Daniels v. GNB, Inc.,

629 So. 2d 595, 599 (Miss. 1993).

2 Michael actually never delivered an inventory of Debbie’s estate during his time as

conservator for Debbie. He eventually did petition the court to approve a final accounting

of the conservatorship on February 22, 2011. 

2
accounts, and the life-insurance proceeds of a $400,000 policy.

3 Debbie also bequeathed

certain personal property pursuant to a handwritten list which was to be incorporated into the

will.4

¶6. Following Debbie’s passing, Montgomery summoned Bobby and others to a meeting

at the offices of WWM to discuss Debbie’s estate. At the meeting, Montgomery informed

Bobby that he was the only “interested party” who had not signed the combined probate

proceeding petition” and that, if he signed the combined petition, he would receive “big

money,” but if he did not sign, the estate would sell certain guns which had sentimental value

to Bobby. Montgomery also informed Bobby that Debbie’s estate lacked sufficient assets

to fund a $50,000 legacy to Bobby’s grandson, and that Bobby should contribute $50,000 of

the proceeds he received as beneficiary of Debbie’s $400,000 life-insurance policy. The

unpaid bequest to Bobby’s grandson was the only one that had not already been satisfied.5

Further, Montgomery promised Bobby that, in exchange for contributing the $50,000 from

3 The realty failed to pass under the will either because Bobby and Debbie owned the

property as joint tenants, Bobby owned the land separately prior to their marriage, or it had

been disposed of prior to Debbie’s death. Bobby received nothing from the bank accounts

because those accounts had been drained and closed prior to Debbie’s death. And the lifeinsurance proceeds did not pass under the will because life-insurance proceeds go to the

beneficiary named in the policy and are wholly independent from the estate.

4 The handwritten list was not attached to any of the pleadings from the probate

proceedings, and its contents are unknown to this Court.

5 Debbie bequeathed $50,000 each to Beth Ann McClendon and Elizabeth Minter.

Debbie also bequeathed $50,000 to Michael Tidwell. Miles agreed to pay and settle the

bequests to McClendon and Minter. A separate life-insurance policy funded the $50,000

bequest to Tidwell and in fact resulted in Tidwell receiving $100,000 (because the policy

amount was $100,000).

3
his life insurance proceeds, he would give Bobby the guns, which were valued at only

$14,468.48, but had high sentimental value to Bobby.

¶7. As a result of Montgomery’s representations, Bobby signed the combined petition,

which designated him as a “Petitioner.” Montgomery signed the petition as an “Attorney[]

for Petitioners.” At the time he signed the petition, Bobby was not told that Debbie’s estate

had been significantly depleted by Michael’s expenditures as conservator, and Montgomery

did not inform him that, by signing the petition, he would be waiving his rights to contest and

to renounce Debbie’s will and receive a child’s share of the estate.6

¶8. Throughout the estate proceedings, Bobby did not challenge any distributions made

pursuant to the will, the status of Debbie’s estate, or the actions of the conservator, executor,

or Montgomery. In fact, he joined and signed the “Inventory, First and Final Account by

David Earl Miles, Petition to Pay Attorney’s Fees and Costs, and Petition for Distribution,

to Close Estate and Vest Title.”

¶9. On May 16, 2011, the chancellor entered an order approving, ratifying, and

confirming this petition, specifically noting that it had been joined by Bobby. Then, almost

a year later—on May 10, 2012—Bobby retained separate counsel and filed a “Petition to ReOpen Estate of Deborah Miles Gibson and Request for Other Relief.” In this petition,

Bobby made allegations of impropriety by Michael as conservator of Debbie’s estate,

wrongful conduct by David Miles as Executor of Debbie’s estate, and fraudulent conduct by

6

See Miss. Code Ann. § 91-5-25 (Rev. 2013).

4
Montgomery acting as Bobby’s attorney. Service of process was not effected and no hearing

was ever held to rule on the petition.7

¶10. On May 14, 2012, the chancellor entered a judgment finally closing Debbie’s estate,

but no language in the judgment mentioned or considered the merits of Bobby’s petition to

re-open. The next day, uninformed of this order, Bobby filed a complaint in the Circuit

Court of Forrest County, asserting claims of legal malpractice against Christopher

Howdeshell, attorney for the conservatorship; Pittman, Howdeshell, Hinton, and Hightower,

PLLC; Joseph Montgomery; and WWM. Bobby also asserted claims for breach of fiduciary

duty against these same defendants and additionally against Michael for his actions as

conservator of Debbie’s estate. After the case was transferred to the Chancery Court of

Forrest County, Bobby voluntarily dismissed his claims against Michael, Howdeshell, and

the Howdeshell firm, leaving only the legal-malpractice and fiduciary-duty claims against

Montgomery and WWM.

¶11. Soon after dismissal ofthe other defendants, Montgomery and WWM filed a “Motion

to Dismiss, or, alternatively, Motion for SummaryJudgment,” arguing 1) that Bobby’s failure

to comply with the thirty-day requirement in Section 11-1-39 required dismissal, 2) that the

doctrines of res judicata and collateral estoppel barred Bobby’s claims, 3) that judicial

estoppel precluded Bobby’s claims, and 4) that Bobby had failed to demonstrate that an

attorney-client relationship existed between himself and Montgomery.

7 Though a certificate of service was attached to the petition, the parties agree that no

one was ever actually served the petition, and the record is in accordance with this belief.

5
¶12. Following a hearing, Special Judge Hollis McGehee informed the parties by e-mail

that he intended to grant summary judgment and dismiss Bobby’s claims, and he ordered

Montgomery to submit a proposed order. Special Judge McGehee then issued an order that

included the following language:

The Court . . . finds that neither party, and particularly Plaintiff Bobby

Leon Gibson . . . , has been able to produce any argument or authority which

would overcome what the Court finds to be a “glaring error” in Plaintiff’s

claim: the Plaintiff himself, with present counsel, intentionally elected to

abandon the remedy that would have provided him with a review of the very

issue about which he now seeks to complain. . . .The very issue Plaintiff

complains about is one to which he agreed before the Chancery Court of

For[r]est County. How, in a court of equity, can a competent person who has

appeared (whether in person or by his/her pleading – a sworn representation

to the Court) and consented to a particular relief and ruling later be heard to

complain about his own agreement?

Notwithstanding Mr. Gibson’s agreement to the relief about which he

now complains, the Court affirmatively finds yet another undisputed fact that

is outcome determinative: Mr. Gibson had pleadings pending before the

Chancery Court of For[r]est County, Honorable Judge Gambrell, addressing

the very issues about which he now complains and seeks recovery. But Mr.

Gibson, through counsel, made the intentional decision to not pursue a claim

that he not only could make but had made before this very Court. Counsel

acknowledged in the hearing on May 22 that the Plaintiff made a conscious

decision not to pursue his own claimed rights to pursue the remedy to which

he was entitled to pursue. Plaintiff made a conscious decision, with the benefit

of counsel who was clearly representing him, to abandon his rights in

Chancery Court. Mr. Gibson, with advice of counsel, elected to forego his

rights in Chancery Court to pursue a negligence claim in Circuit Court. He

now, upon the transfer of the Circuit Court matter back to Chancery Court,

seeks to complain that he did not get the relief to which he felt he was entitled. 

Yet, in this very proceeding, Mr. Gibson intentionally elected not to pursue his

own allegations of a right to relief. Therefore, under all principles of equity

and at law, Mr. Gibson’s claim cannot withstand the test for summary

judgment. 

Further, even setting all that aside, there is an additional reason the

Plaintiff’s claim cannot survive WWM’s Motion for Summary Judgment. 

Plaintiff has failed to make a showing sufficient to establish the existence of

one (here more than one) of the three elements of malpractice – (1) an

6
attorney-client relationship – plaintiff fails here; (2) the attorney’s negligence

in handling the client’s affairs – Plaintiff fails at this point because he failed

at the first element; and (3) proximate cause of injury – here the Plaintiff fails

again, completely. How can Plaintiff be allowed to come into this Court of

equity complaining about his outcome in the estate matter when he first

consented to the relief he obtained and second, when he had a perfect remedy

or route to have his claim or concern addressed but he intentionally and

pointedly abandoned that right and opportunity to pursue a negligence claim

in Circuit Court? Respectfully, this is astounding to the Court. It is

tantamount to and has the practical effect of abandoning his proper remedy in

Chancery Court to address his complaint in order to shore up his negligence

claim in Circuit Court. Such cannot be.

¶13. Bobby timely filed his Notice of Appeal and raises four issues: 1) whether the

doctrines of res judicata or collateral estoppel bar Bobby’s claims, 2) whether judicial

estoppel precludes his malpractice action, 3) whether the thirty-day period provided in

Section 11-1-39 requires dismissal, and 4) whether there remains a genuine issue of material

fact as to the elements of his legal-malpractice and fiduciary-duty claims.

STANDARD OF REVIEW

¶14. “When reviewing a trial court’s grant or denial of a motion to dismiss or a motion for

summary judgment, this Court applies a de novo standard of review,”8and summary

judgment should be granted only when no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law.9 Further, this Court views the

evidence in the light most favorable to the nonmoving party,

10

and “[t]he moving party has

the burden of demonstrating that [no] genuine issue of material fact[s] exists, and the non8 Burleson v. Lathem, 968 So. 2d 930, 932 (Miss. 2007).

9

 Miss. R. Civ. P. 56 (c).

10 Duckworth v. Warren, 10 So. 3d 433, 436 (Miss. 2009).

7
moving party must be given the benefit of the doubt concerning the existence of a material

fact.”11 Even where the facts are undisputed, “[s]ummary judgment is inappropriate where

there are undisputed facts which are susceptible to more than one interpretation.”12

ANALYSIS

I. Whether—because the chancellor entered a judgment closing

Debbie’s estate after Bobby’s Petition to Re-Open was filed—the

doctrines of res judicata or collateral estoppel preclude Bobby’s

claims.

¶15. Montgomery and WWM assert that Bobby’s claims are precluded by the doctrines of

both res judicata and collateral estoppel, but we disagree.

Res Judicata

¶16. The doctrine of res judicata is “fundamental to the equitable and efficient operation

of the judiciary and ‘reflects the refusal of the law to tolerate a multiplicity of litigation.’”13

“The courts cannot revisit adjudicated claims and ‘all grounds for, or defenses to recovery

that were available to the parties in the first action, regardless of whether they were asserted

or determined in the prior proceeding, are barred from re-litigation in a subsequent suit under

the doctrine of res judicata.’”14

¶17. Four identities must be present for res judicata to apply: (a) identity of the subject

matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause

11 One South, Inc. v. Hollowell, 963 So. 2d 1156, 1160 (Miss. 2007).

12 Johnson v. City of Cleveland, 846 So. 2d 1031, 1036 (Miss. 2003).

13 Carmichael, 17 So. 3d 1087, 1090.

14 Harrison v. Chandler-Sampson Ins., Inc., 891 So. 2d 224, 232 (Miss. 2005).

8
of action; and (4) identity of the quality or character of a person against whom the claim is

made.15 This Court also has held that there is to be a fifth requirement—that the prior

judgment must be a final judgment on the merits.16 The absence of any of these requirements

“is fatal to the defense of res judicata.”17

¶18. Montgomeryand WWM argue that, because Bobby asserted a similar factual account

in his Petition to Re-open Debbie’s estate, res judicata precludes him from litigating his

legal-malpractice action which is predicated on the same facts. Bobby indeed alleges almost

identical facts in both his Petition to Re-open and his Complaint, and this Court reasonably

could conclude that the two actions contain the same “identity of the subject matter of the

action.”

¶19. The “identity of the cause of action,” however, is absent. In his Petition to Re-open,

Bobby merely asked that the estate proceedings be reopened to further investigate alleged

wrongful conduct and specifically requested relief through the creation of a constructive

trust, injunctive relief, and an accounting of the conservatorship and estate. Importantly,

within the petition to reopen, Bobby did not assert any legal-malpractice or fiduciary-duty

claims. In other words, Bobby sought relief solely within the context of the estate. 

Conversely, in his legal-malpractice complaint, Bobby specifically alleged claims (including

fiduciary-duty claims)—arguing duty, breach, and causation—against Montgomery and

15 EMC Mortg. Corp. v Carmichael, 17 So. 3d 1087, 1090 (Miss. 2009).

16 Estate of White v. White, 152 So. 3d 314, 317 (Miss. 2014). 

17 Strait v. McPhail, 145 So. 3d 696, 704 (Miss. Ct. App. 2013) (quoting Channel

v. Loyacono, 954 So. 2d 415, 424 (Miss. 2007)).

9
WWM, and he requested relief in the form of damages—both actual and punitive. So, based

on this, the “identity of the cause of action” is not present and, consequently, res judicata

does not apply. 

¶20. And even if this identity were present, res judicata cannot apply because the fifth

identity—that the prior judgment must be a final judgment on the merits—is not present. The

chancellor never adjudicated Bobby’s Petition to Re-open the estate, nor did she mention it

within her judgment or order closing Debbie’s estate. No hearing on Bobby’s petition was

ever held, and the chancellor entered her order three days after Bobby filed his petition. Not

only does the record lack any evidence that the chancellor actually considered and

determined the merits of the petition, it contains no evidence demonstrating that the

chancellor was even aware that the petition had been filed before entering her order. For

these reasons, the chancellor’s order closing the estate was not a “final judgment on the

merits” of Bobby’s malpractice claims.

Collateral Estoppel

¶21. The doctrine of collateral estoppel—often considered a cousin ofres judicata—serves

a “dual purpose” and “protects litigants from the burden of re-litigating an identical issue

with the same party or his privy” and “promotes judicial economy by preventing needless

litigation.”18 “Collateral estoppel is ‘an unusual exception to the general rule that all fact

questions should be litigated fully in each case.’”19 Collateral estoppel precludes relitigating

18Mayor andBd. of Alderman, City of Ocean Springs,Miss. v. Homebuilders Ass’n

of Miss., Inc., 932 So. 2d 44, 59 (Miss. 2006).

19 Marcum v. Miss. Valley Gas Co., 672 So. 2d 730, 733 (Miss. 1996).

10
a specific issue, which was: (1) actually litigated in the former action; (2) determined by the

former action; and (3) essential to the judgment in the former action.20

¶22. Unlike res judicata, collateral estoppel applies only to those issues actually litigated

and not to those issues which merely could have been litigated in the prior suit.21 Further,

“where there is room for suspicion regarding the reliability of those first fact-findings,

collateral estoppel should never be applied.”

22 And this Court has held that both

doctrines—res judicata and collateral estoppel—even if found to be permissible, “are not

inflexible commands which must be brutally enforced in all cases”23

¶23. Montgomery and WWM argue that collateral estoppel applies for the same reasons

they argue that res judicata applies—the similar factual recitations contained in Bobby’s

petition and his complaint. But, for similar reasons to those discussed concerning res

judicata, we hold that collateral estoppel cannot apply. Quite simply, all elements for

collateral estoppel are absent. The chancellor’s order fails to mention Bobby’s petition at all.

The chancellor held no hearing on the petition. Indeed, she entered her order closing the

estate only three days after Bobby filed his petition—which further indicates that she did not

consider or determine the merits of the petition. The petition, therefore, was not actually

litigated in the former action, was not determined by the former action, and consequently

20 In re Estate of Stutts v. Stutts, 529 So. 2d 177, 179 (Miss. 1988).

21 Channel v. Loyacono, 954 So. 2d 415, 424 (Miss. 2007).

22 Miss. Emp’t Sec. Comm’n v. Philadelphia Mun. Separate Sch. Dist. of Neshoba

Cty., 437 So. 2d 388, 396 (Miss. 1983).

23 State ex rel. Moore v. Molpus, 578 So. 2d 624, 642 (Miss. 1991). 

11
could not have been essential to the judgment. For these reasons, neither res judicata nor

collateral estoppel precludes Bobby’s claims. 

II. Whether—because Bobby joined and signed a majority of the

petitions during the estate proceeding—the doctrine of judicial

estoppel precludes Bobby’s claims.

¶24. Montgomery and WWM next argue that judicial estoppel bars Bobby’s claims. 

“Judicial estoppel is designed to protect the judicial system and applies where ‘intentional

self-contradiction is being used as a means of obtaining unfair advantage in a forumprovided

for suitors seeking justice.’”24 The doctrine arises “when one party asserts a position contrary

to one taken in a prior litigation,”25 and “precludes a party from asserting a position,

benefitting from that position, and then, when it becomes more convenient or profitable,

retreating from that position later in the litigation.”26

 

¶25. This Court demands that three elements be met for judicial estoppel to apply: (1) the

position must be clearly inconsistent with one taken during previous litigation; (2) the court

must have accepted and relied on the previous position; and (3) the party must not have

inadvertently taken the inconsistent position.27 When the party asserting the prior

inconsistent position has not benefitted by the assertion, the doctrine should not be applied.28

24 Kirk v. Pope, 973 So. 2d 981, 991 (Miss. 2007).

25 Clark v. Neese, 131 So. 3d 556, 560 (Miss. 2013).

26 In re Estate of Richardson, 903 So. 2d 51, 56 (quoting Dockins v. Allred, 849 So.

2d 151, 155 (Miss. 2003)).

27 Kirk, 973 So. 2d at 991 (Miss. 2007).

28 Mauck v. Columbus Hotel Co., 741 So. 2d 259, 265 (Miss. 1999).

12
¶26. Montgomeryand WWM essentiallyargue that—because Bobbysigned and joined the

various petitions filed throughout the estate proceedings—he cannot now take a contrary

position by alleging malpractice on the part of the attorneysin handling the estate. We agree

with Montgomery and WWM that the first two elements of judicial estoppel are met. No one

disputes that Bobby indeed signed and joined in most of the petitions filed concerning the

conservatorship and estate proceedings. Further, the chancellor clearly accepted and relied

on these positions, as evidenced by her orders stating “with joinder and approval of Bobby

Leon Gibson.”

¶27. But judicial estoppel applies only when the inconsistent position was not taken

inadvertently. If Bobby’s assertions prove to be true, and his claims later prove to be

meritorious, then he signed the petitions either because he had received bad advice from his

attorney, or because his attorney had breached a fiduciary duty to him by failing to fully

inform him of the implications of signing the petitions.

¶28. For instance, Bobby alleges Montgomery should have informed him that he had a

right to renounce the will and that, had he done so, Bobby would have received a larger share

of the estate. Also, prior to signing, Montgomery failed to notify Bobby that Debbie’s

conservatorship account had been depleted by more than a quarter of a million dollars, to a

mere $4,000. Bobby also alleges he agreed to contribute a portion of his life-insurance

proceeds to the estate only because Montgomery persuaded him to do so by representing to

him that failure to give up the proceeds would result in Bobby’s loss of certain property that

had sentimental value. Based on Bobby’s allegations—which we must accept as true for

13
purposes of summary judgment—we hold that, at the very least, Bobby inadvertently took

these inconsistent positions, thus precluding judicial estoppel. 

¶29. Additionally, judicial estoppel cannot apply because it cannot be said that Bobby

benefitted by taking these prior positions—in fact, quite the contrary. Bobby lost $50,000

in life-insurance proceeds due to Montgomery’s representations and threat that the

guns—which were worth far less than $50,000, and which had sentimental value to

Bobby—would be sold. What is more, Bobby actually received nothing under the will. 

Debbie devised certain real property to Bobby but these failed to pass under the will.29 And

although Debbie purported to bequeath to Bobby funds in two bank accounts, those funds

did not pass because those two accounts had been drained and closed prior to her death. 

¶30. In fact, the only real “benefit” obtained by Bobby in signing these petitions was the

acquisition of three guns, valued at only a little more than $14,000, for which he paid

$50,000 in insurance proceeds. If the factfinder determines that an attorney-client

relationship existed between Montgomeryand Bobby, then Montgomery had a dutyto advise

Bobby of what was in his best interest, including the fact that he simply could have

purchased the guns for $14,000 rather than giving up $50,000 in life-insurance proceeds that

belonged only to him, separate and apart from the estate. Further, as discussed below, Bobby

gave up his right to receive half of a substantial amount of property that passed under

29 The realty failed to pass under the will because one of three things: 1) Bobby and

Debbie owned the property as joint tenants with the rights ofsurvivorship, 2) Bobby owned

the land separately prior to their marriage, or 3) the property had been disposed of prior to

Debbie’s death. 

14
Debbie’s will to her son Miles Smith. For these reasons, judicial estoppel does not preclude

Bobby’s legal-malpractice action.

III. Whether—because Bobby failed to refile his complaint with the

Chancery Court of Forrest County after the case was transferred

from the Circuit Court of Forrest County—Section 11-1-39

requires dismissal of Bobby’s complaint.

¶31. MontgomeryandWWMadditionallycontend thatSection 11-1-39 mandates dismissal

of Bobby’s complaint, but their reliance on this statute is misplaced. Mississippi Code

Section 11-1-39 provides that, after a case is transferred from one court to another, “the

complainant or plaintiff shall file his declaration or bill in the court to which the cause was

transferred within thirty days, unless the court, judge, or chancellor shall restrict the time or

grant further time.”30

¶32. Requirements for amending or refiling complaints are procedural matters that are

governed by the Mississippi Rules of Civil Procedure,31 which do not require a plaintiff to

refile a complaint within thirty days after a case is transferred from circuit court to chancery

court. Accordingly, this argument is without merit.

IV. Whether Bobby has demonstrated the presence of a genuine issue

of material fact regarding his legal-malpractice and fiduciary-duty

claims.

¶33. Montgomery and WWM argue that Bobby failed to make out a prima facie legalmalpractice claim because he can demonstrate neither the existence of an attorney-client

30 Miss. Code Ann. § 11-1-39 (Rev. 2014).

31 See Wimley v. Reid, 991 So. 2d 135, 138 (Miss. 2008).

15
relationship nor causation. Montgomery and WWM further assert that Bobby has “failed to

establish the existence of a fiduciary duty.” We disagree with both assertions. 

A. Legal-Malpractice Claim

¶34. For legal-malpractice claims predicated on negligence, the plaintiff “must prove by

a preponderance of the evidence: (a) the existence of an attorney-client relationship; (2)

negligence on the part of the lawyer in handling the affairs of the client which have been

entrusted to the lawyer; and (3) proximate cause of the injury.”

32 But, importantly, for this

type of claim, “an attorney-client relationship is an essential element,” and the absence of

such a relationship is fatal.33

1. Attorney-Client Relationship

¶35. According to this Court, a relationship between a lawyer and client arises when:

(1) a person manifests to a lawyer the person’s intent that the lawyer

provide legal services for the person; and either:

(a) the lawyer manifests to the person the consent to do so; or

(b) the lawyer fails to manifest lack of consent to do so, and the

lawyer reasonably knows or should know that the person

reasonably relies on the lawyer to prove services . . . .34

32 Pierce v. Cook, 992 So. 2d 612, 617 (Miss. 2008).

33 Great American E & S Ins. Co. v. Quintairos, Prieto, Wood & Boyer, P.A., 100

So. 3d 420, 425 (Miss. 2012).

34 Singleton v. Stegall, 580 So. 2d 1242, 1244 n.2 (Miss. 1991) (citing American Law

Institute, Restatement of the Law: The Law Governing Lawyers § 26 (Prelim. Draft No. 6,

July 25, 1990)) (emphasis added). 

16
¶36. Bobby argues—and we agree—that a genuine issue of material fact remains as to the

existence of an attorney-client relationship between himself and Montgomery. Bobbypoints

to the combined petition entitled “Notification of Death of Deborah Miles Gibson; Petition

for Probate of Last Will and Testament of Deborah Miles Gibson; and Petition to Convert

Conservatorship into Estate Proceeding, to Appoint David Earl Miles as Executor, and to

Allow Reasonable Time for the Filing of Final Accounting byMichael L. Miles, Conservator

herein,” in which Bobby signed as a “Petitioner” and Montgomery signed as an “Attorney

for Petitioner[s].” At oral argument, counsel for Montgomery argued that this designation

was a scrivener’s error. Perhaps it was, but that is a decision to be made by the factfinder.

¶37. Bobby also argues that the meeting held at the office of WWM further evidences an

attorney-client relationship because, at this meeting, Montgomery advised him—as an

attorney—to sign the petition and to deduct $50,000 from his life-insurance proceeds to

satisfy a bequest in Debbie’s will.

¶38. In Edmonds v. Williamson, the plaintiff pursued claims for legal malpractice and

breach of fiduciary duty against defendants.35

In reviewing the trial court’s decision that the

plaintiff could not establish a legal-malpractice claim against the defendants, this Court

considered whether the plaintiff had demonstrated the existence of an attorney-client

relationship and held that an attorney-client relationship did exist between the parties because

35 Edmonds v. Williamson, 13 So. 3d 1283, 1289 (Miss. 2009).

17
the defendant—in his response to the plaintiff’s complaint—admitted to the existence of an

attorney-client relationship.36

¶39. The facts presented here—in the context ofsummary judgment, which requires us to

view the facts in the light most favorable to the nonmoving party—can be compared to those

presented in Edmonds, in which the defendant admitted to an attorney-client relationship

with the plaintiff. Here, by signing the petition as an “attorney for the petitioner” in a

pleading to the court that listed Bobby as a “petitioner,” Montgomery not only represented

to Bobby that he was his attorney, but he made that same representation to the court. For

purposes of summary judgment, this certainly should rise to the level of an admission.

¶40. Rule 11 of the Mississippi Rules of Civil Procedure also supports Bobby’s argument. 

Rule 11 states “the signature of an attorney constitutes a certificate that the attorney has read

the pleading or motion; that to the best of the attorney’s knowledge, information, and belief

there is good ground to support it . . . .”

37 So, in accordance with this rule, when

Montgomery signed the petition as “attorney for petitioner,” he certified to the court that this

representation was true and accurate.

¶41. We note that the following concerns expressed by the Special Judge during the

hearing on WWM’s and Montgomery’s motion to dismiss and/or summary judgment shed

further light on this issue:

I mean, I don’t know, I mean, here’s my concern about your Motion as the

posture that the case is in this morning, is that it appears that at a point in time

36 Id.

37 Miss. R. Civ. P. 11(a).

18
when your clients, as well as the Howdeshell group, filed that Petition, that this

gentleman [Bobby] had no other – well, I don’t know if he had any other

counsel or not. But they represented themselves as being his counsel and he

signed off on that. And there wasn’t a hearing. And it appears that he waived

his right of renunciation and other, maybe other significant rights, without

having appeared before the Chancellor, at least as I understand it. And that’s

my concern in an nutshell in terms of the crux of your [M]otion this morning.

¶42. So, because this Court reviews a motion for summary judgment de novo, and because

this Court must view the evidence in the light most favorable to the nonmoving party, we

must hold that there remains a genuine issue of material fact concerning the existence of an

attorney-client relationship. 

2. Negligence 

¶43. Because we hold that a genuine issue of fact remains as to the existence of an

attorney-client relationship, we now address the remaining elements for a legal-malpractice

claim, the second of which is that the plaintiff must prove by a preponderance of the evidence

“negligence on the part of the lawyer in handling the affairs entrusted to him.”38 Lawyers

owe their clients the duties of loyalty and care.39

¶44. Montgomery allegedly advised Bobby to sign a petition which effectively waived

important rights—including the rights to renounce and contest Debbie’s will—without first

informing him of the consequences of such actions. Further, Montgomery allegedly

instructed Bobby that if he signed the combined petition, he would receive “big money,” but

that if he did not sign, the estate would sell certain guns which had sentimental value to

38 Century 21 Deep South Props., Ltd. v. Corson, 612 So. 2d 359, 372 (Miss. 1992).

39 Pierce v. Cook, 992 So. 2d 612, 617 (Miss. 2008).

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Bobby. And Montgomery allegedly encouraged Bobby to deduct $50,000 from lifeinsurance proceeds to fund a bequest to his grandson when every other bequest in the will

was funded and settled byMiles Smith—Debbie’s son. Based on these allegations, a genuine

issue of material fact exists as to whether Montgomery breached the duties of loyalty and

care owed by him to Bobby.

3. Proximate Cause and Injury

¶45. Finally, we address the third and fourth elements of a legal-malpractice

claim—proximate cause and injury.

40 In a negligence-based malpractice action, the plaintiff

“must establish proximate cause by the so-called ‘trial-within-a-trial’ test,” and “‘must show

that, but for [his] attorney’s negligence, he would have been successful in the prosecution or

defense of the underlying action.’”41

¶46. Montgomeryand WWM argue that Bobbycannot show causation “because [he] solely

caused his own alleged damages,” but we disagree. Due to Montgomery’s alleged wrongful

actions, Bobby suffered a fairly substantial injury.

¶47. First, had Montgomery not induced Bobby to sign the petition in which Bobby

unknowingly waived his rights to renounce and contest Debbie’s will, Bobby could have

renounced Debbie’s will, resulting in a substantially larger inheritance from his late wife’s

estate. In particular, had he renounced Debbie’s will, Bobby would have received “such part

of [Debbie’s] estate, real and personal, as [he] would have been entitled to if [Debbie] had

40 Edmonds, 13 So. 3d at 1290.

41 Crist v. Loyacono, 65 So. 3d 837, 842 (Miss. 2011).

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died intestate, except that, even if [Debbie] left no children or descendant of such, [Bobby],

upon renouncing, shall be entitled to [] one-half (1⁄2) of the real and personal estate of

[Debbie].”42 Pursuant to Debbie’s will, Miles Smith inherited:

All of [her] stock in Joe N. Miles & Sons, Inc.; the County Line Grocery with

all inventory and contents, as well as the approximately five (5) acres of real

estate in Forrest County, Mississippi, upon which it is situated; all of [her] real

property owned in Forrest County, Mississippi; all of [her] interest in the

Lodge Mahal in Pearl River County, Mississippi; all of [her] real property

owned in Forrest County and Lawrence County, Mississippi; any and all other

real estate owned by me in the State of Mississippi not hereinabove devised to

someone else, as well as my trust fund at BancorpSouth, Hattiesburg,

Mississippi, and any all personal property owned byme at the time of my death

not listed in the handwritten list of personal property referred to in Paragraph

X below.

¶48. Pursuant to Section 91-5-25, had Bobby chosen to renounce Debbie’s will, he would

have received a portion of the above-mentioned property. So, but for Montgomery’s alleged

wrongful conduct—by advising Bobby to sign the combined petition renouncing important

rights without first explaining the consequences of such an action—Bobby could have, and

likely would have, chosen to renounce Debbie’s will and consequently would have received

a much larger inheritance.

¶49. Further, but for Montgomery’s actions—according to Bobby’s allegations—of

encouraging, or coercing, Bobby to deduct $50,000 from the life-insurance proceeds to fund

a bequest in Debbie’s will—Bobby would have received $50,000 more than he did. For

these reasons, Bobby has established—at the very least—a genuine issue of material fact as

to the elements of “causation” and “injury.”

42 Miss. Code Ann. § 91-5-25 (Rev. 2013).

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B. Fiduciary-Duty Claim

¶50. It is axiomatic that “a fiduciary duty must exist before a breach of the duty can

occur.”43 Attorney-client relationships give rise to fiduciary duties as evidenced by this

Court’s recognition of legal-malpractice claims based on fiduciary obligations.44 And as

discussed earlier, we hold that a genuine issue of material fact remains on the issue of

whether such a relationship existed between Montgomery and Bobby.

¶51. But the absence of an attorney-client relationship does not foreclose the possibility of

the existence of a fiduciary relationship. In Mississippi, “[a] fiduciary relationship may arise

in a legal, moral, domestic, or personal context, where there appears ‘on the one side an

overmastering influence or, on the other, weakness, dependence, or trust, justifiably

reposed.’”45 So fiduciaries’ duties may arise as a matter of law from certain specified

relationships such as attorney and client; or they may be created by the facts and

circumstances of a particular relationship, taking into account the above factors. 

¶52. In Baker Donelson, we recognized that, for decades, this Court has held that

fiduciary relationships can arise in a variety of contexts, and that relationships between

attorneys and third parties can give rise to a fiduciary relationship—and the requisite

43Baker DonelsonBearmanCaldwell &Berkowitz, P.C. v. Seay, 42 So. 3d 474, 485

(Miss. 2010) (citing Black’s Law Dictionary 564 (5th ed. 1979)).

44 See Crist v. Loyacono, 65 So. 3d 837, 842 (Miss. 2011).

45 Id. (citing Milner v. Bertasi, 530 So. 2d 168, 170 (Miss. 1988); Matter of Estate

of Haney, 516 So. 2d 1359 (Miss. 1987)) (emphasis added).

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fiduciary duties—despite the absence of an actual “attorney-client” relationship.46

Accordingly, the general rule in Mississippi is that, under certain facts and circumstances,

attorneys can acquire fiduciary obligations to third parties who are not their clients where no

attorney-clientrelationship is present.47 Fiduciaryrelationships often turn on questions offact

related to exertion of influence, whether a party trusted and relied on another party, and

whether the reliance was justified. 

¶53. In other words, while it is true that we have never held—and we do not hold

today—that attorneys for estates always owe fiduciary duties to every estate beneficiary, we

see no reason to carve out a rule of special protection for estate attorneys, exempting them

from any beneficiary claim of a fiduciary relationship. An attorney for the estate may, under

certain circumstances, owe fiduciary duties to a beneficiary of the estate based on the same

considerations relevant to determine fiduciary duties to all third parties. The existence of

these fiduciary relationships are questions to be determined in the trial court, and here, we

believe sufficient evidence exists in the record for a factfinder to conclude that Montgomery

owed Bobby fiduciary duties, even without a finding of an attorney-client relationship.

¶54. And, should the trial court find that Montgomery assumed fiduciary duties to Bobby,

we also find that—viewing the facts and allegations in the light most favorable to

Bobby—MontgomeryallegedlyinducedBobbyinto signing a petition without first informing

him of the consequences. This, in effect, caused Bobby to waive his statutory rights to

46 Baker Donelson, 42 So. 3d 474, 485 (Miss. 2010).

47 Id.

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contest and renounce Debbie’s will. Montgomery approached Bobby under circumstances

which, if not enough to create an attorney-client relationship, could support an inference of

dependence and trust, as Montgomery purported to have Bobby’s interests in mind and to

exercise control over Debbie’s estate. There is evidence in the record to support Bobby’s

claim that Montgomery coerced or compelled him to deduct $50,000 of life-insurance

proceeds to fund a bequest in Debbie’s will. These acts, if true—and assuming a fiduciary

relationship is found to have existed—would constitute a breach of that fiduciary duty. So

genuine issues of material fact remain regarding Bobby’s fiduciary-duty claims.

¶55. To be clear, we do not address today the duties of attorneys who represent executors

and administrators of estates. Montgomery claims he was the attorney for the estate and not

for the executor of the estate. In thirty filings with the trial court, Montgomery was either

listed as or signed as the “attorney for the Estate.” Indeed, we are unable to locate a single

filing in which Montgomery identifies himself as, or claims to be, an attorney for the

executor. Additionally, Montgomery is identified as attorney for the estate within the trial

transcript and the appellee’s brief. And finally we note that, within the first five minutes at

oral argument, Montgomery’s own counsel unequivocally stated that nothing in the record

indicates anything other than that Montgomery and his law firm acted as attorneys for the

Estate.

CONCLUSION

¶56. In sum, Bobby’s legal-malpractice action is not precluded by the doctrines of res

judicata, collateral estoppel, or judicial estoppel. Furthermore, Section 11-1-39 does not

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apply to require dismissal of Bobby’s claims. And finally, we hold that Bobby has

demonstrated that genuine issues of material fact exist regarding the elements of his legalmalpractice and fiduciary-duty claims.

¶57. We make no determination as to the underlying merits of Bobby’s claims, as the only

issue before this Court is whether Bobby has demonstrated the existence of genuine issues

of material fact, so that the trial court’s grant of summary judgment was improper. We hold

that he has. Accordingly, we reverse the trial court’s grant ofsummary judgment and remand

this case to the ChanceryCourt of Forrest County for further proceedings consistent with this

opinion.

¶58. REVERSED AND REMANDED.

WALLER, C.J., LAMAR, KITCHENS, KING, COLEMAN AND MAXWELL,

JJ., CONCUR. RANDOLPH, P.J., AND BEAM, J., NOT PARTICIPATING.

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