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. W YLY, III COURT FROM W HICH APPEALED: FORREST COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: SETH C. LITTLE CHUCK McRAE CHRISTOPHER A. BAMBACH ATTORNEYS FOR APPELLEES: JAMES G. W YLY, III CHRISTINE MALISHKA BOCEK NATURE OF THE CASE: CIVIL - W ILLS, 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. B o b b y L e o n G i b s o n ( “ B o b b y ” ) f i l e d a l e g a l

- malpractice action against J o e Montgom ery and his law f irm , W illiam s, W ill i a ms and Montgom ery , P.A. (“W W M”), allegi n g w r o ngf

ul conduct in connection with the adm inistration o f h is late wif e’s estate. The trial judge gr a n t e d sum m ary judgm e n t to Montgom e ry and W W M. W e reverse and

rem and.FACTS AND PROCEDURAL HISTORY

¶2. Our s tandard of r e v i e w f o r a n a p p eal of a sum m a ry judgm ent is de novo , and we review the f

a cts in the record in the light m ost f avorable to t he nonm oving p arty , 1 who in this

case is Bobby

. Accordingly , we set f orth the f ollowing f

actual background i n the light m ost f avorable to Bobby , giving him the benef it of all inf erences f avorable to him

. ¶3. On March 2 9, 2 0 09, a conservatorship w as created f or B o bby ’s w if

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

conservator. In connection with the petition t o appoint conservator, B o b b y s igned a docum ent entitled “W aiver o f Process and Joinder” in which Bobby agreed “that this action

m ay be heard and disposed of without f urther notice to [ m e].” ¶4. D u r i n g t h e e i g h t e e n mo n ths that f ollowed, M ichael expended $238,3 7 1

. 4 1 o f Debbie’s f

unds, leaving a b alance of just $4, 0 36.40 in the conservatorship account. And in violation of a requirem e nt contained in the Letters of C onservatorship, Michael f ailed to deliver an inventory

of Debbie’s estate within three m o nths. 2 ¶5. Debbie passed away on Septem ber 8, 2010. Her Last W ill and T estam e n t nam ed the
f ollowing benef

i ciaries: her husband Bob b y , her s on M iles Sm ith, B eth Ann M cClendon, Elizabeth Minter, Bobby Leon Gibson I I I, and Michael Tidwell. Under the term s of the will, Bobby was to receive thre e r e a l estate properties, the rem aining balance of two bank

1 S ee B u r leso n v. L a th e m , 9 6 8 S o
. 2 d 9 3 0 , 9 3 2 (M iss. 2 0 0 7 ); D a n iels v. G N B , In c. , 6 2 9 S o . 2 d 5 9 5 , 5 9 9 (M iss. 1 9 9 3 ).

2 M ich ael actu ally n ev er d e liv ered an in v en to ry o f D eb b ie’s estate d u rin g h is tim e as co n serv a to r f

o r D e b b ie. H e ev en tu ally d id p etitio n th e co u rt to ap p ro v e a f in al acco u n tin g o f th e co n serv ato r sh i p o n F e b ru ary 2 2 , 2 0 1 1

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

. 3 Debbi e a l s o bequeathed certain personal property pursuant to a handwritten list which was to be i ncorporated into the will. 4 ¶6. Following Debbie’s passing, Montgom ery sum m oned Bobby and others t o a m eeting at the of f ices of W W M to discuss Debbie’s estate. At the m eeting, Montgom ery inf orm ed Bobby that he was the only “inter e s t e d p a rty ” who had n ot signed the com b ined probate proceeding petition” an d t h a t , if he signed the com bined petition, he would r eceive “big

m oney ,” but if he did not sign, the estate would s e ll certain guns w hich had sentim ental value

to Bobby

. Montgom ery also inf orm ed Bobby tha t D e b b i e ’ s estate lacked suf f i cient assets
to f u nd a $50,000 legacy to Bobby ’s grandson, a nd t hat Bobby should c ontribute $50,000 of the proceeds he received a s benef ic i a ry of D ebbie’s $ 400,000 lif e-insurance policy

. The unpaid bequest to Bobby ’s grandson was the only o ne t hat had not already been s atisf ied. 5 Further, Montgom ery prom i sed Bobby t hat, in exchange f or contributing the $50,000 f rom

3 T h e realty f

ailed to p ass u n d er th e w ill eith er b ecau se B o b b y an d D eb b ie o w n ed th e p ro p erty as j o in t ten an ts, B o b b y o w n ed th e lan d sep arately p rio r to th eir m a r riag e, o r it h ad b een d isp o sed o f p r io r to D eb b i e’s d eath

. B o b b y receiv ed n o th in g f ro m th e b an k acco u n ts b ecau se th o se acco u n ts h ad b e en d rain ed an d clo s ed p rio r to D eb b i e’s d e ath

. A n d th e lifein su r an ce p ro ceed s d id n o t p ass u n d er th e w i ll b ecau se l i f e -in su ran ce p ro ceed s g o to th e b en ef iciary n am ed in th e p o licy

an d are w h o lly i n d ep en d en t f ro m th e estate.

4 T h e h an d w ritten l i st w as n o t attach ed t o an y o f th e p lead in g s f ro m th e p ro b ate p ro ceed i n g s, an d its co n t en ts are u n k n o w n t o th is C o u rt.

5 D eb b ie b eq u eath ed $ 5 0 ,0 0 0 each to B e th A n n M cC len d o n a n d E lizab eth M in ter. D e b b ie also b eq u eath ed $ 5 0 ,0 0 0 to M ich ael T id w ell. M i les ag reed to p a y a n d settle th e b eq u ests to M cC l en d o n an d M i n t e r
. A sep arate lif e-in s u ran ce p o licy f

u n d ed th e $ 5 0 ,0 0 0 b eq u est to T id w ell an d i n f act resu lted in T id w ell receiv in g $ 1 0 0 , 0 0 0 (b ecau se th e p o licy am o u n t w as $ 1 0 0 ,0 0 0 ). 3his lif

e insurance proceeds, he would give B o b b y t h e guns, which were valued at only $14,468.48, but had high sentim ental value to Bobby

. ¶7. As a result of Montgom e ry ’s representations, Bobby s i gn e d the c om bined petition, which designated him a s a “Petitioner.” Montgom e ry signed the petition a s an “Attorney [ ]
f or Petitioners.” At the tim e he signed the petition, B obby was not told that Debbie’s estate had been signif

icantly depleted by Michael’s expenditures as conservator, and Montgom ery did not inf

orm him that, by signing the petition, he w ould 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 c h allenge any distributions m ade pursuant to t he will, t he status of Debbie’s e state, or the actions of the conservator, executor,

o r Montgom ery
. In f

act, he joined and signed the “Inventory , First and F inal A c c o u n t b y David E arl Miles, Petition to Pay Attorney ’s Fees and Costs, and Petition f or Distribution, to Close Estate and Vest Title.” ¶9. O n M a y 1 6 , 2011, the chancellor entered an o r d e r a p p r o v i n g , r a t i f y i n g , a n d conf irm ing t his petition, specif ically noting t hat it had been joined by Bobby

. Then, alm ost

a y ear later—on May 10, 2012—Bobby retained separate c o unsel and f iled a “Petition to ReOpen Estate of Deborah M iles Gibson and Request f or Other Relief

.” I n this petition, Bobby m a de a l l egations o f im propriety by Michael a s c o nservator of Debbie’s estate, wrongf ul conduct by David Miles as Executor of Debbie’s estate, and f r audulent conduct by

6 S ee M iss. C o d e A n n . § 9 1 -5 -2 5 (R ev . 2 0 1 3 ). 4Montgom ery a cting as Bobby ’s attorney

. Service of p rocess was not ef f ected and no hearing was ever held to rule on the petition. 7 ¶10. On May 14, 2 012, the chancellor entered a judgm ent f inally closing D ebbie’s estate, but no language in t he judgm ent m entioned or considered the m erits of Bobby ’s petition to
re-open. The next day , uninf o r m ed of t h i s o r d e r , B o bby f iled a com

plaint i n the Circuit
Court of Forrest County , asserting claim s of legal m a lpractice against Christopher Howdeshell, attorney f

or the conservatorship; P ittm an, Howdeshell, Hinton, and Hightower, PLLC; Joseph Montgom ery ; and W W M. Bobby also asserted claim s f or breach of f

iduciary d u t y a g a inst these sam e d ef endants and additionally a gainst Michael f or his actions a s

c o n servator of Debbie’s estate. Af ter the c ase w as transf

e rred to the C hancery Court o f Forrest County , Bobby v oluntarily dism issed his claim s a gainst Michael, Howdeshell, and the Howdeshell f

irm , leav i n g only the l egal-m alpractice and f iduciary

- duty claim s against Montgom ery

and W W M. ¶11. Soon af

ter dism i ssal of the other def endants, Montgom ery a nd W W M f iled a “Motion

to Dism iss, o r , a l t e r

n a t i v ely , Motion f

or S um m ary Judgm ent,” arguing 1 ) that Bobby ’s f ailure

to com ply with the thirty -day requirem ent in Section 11-1-39 required d ism issal, 2) that the doctrines of res j udicata a nd collateral estoppel barred Bo b b y ’ s claim s, 3) that judicial estoppel precluded Bobby ’s c laim s, and 4 ) that Bobby had f ailed t o d e m onstrate that an attorney -client relationship existed between him s elf and Montgom ery
.

7 T h o u g h a certif

icate o f s erv ice w as attach ed t o th e p etitio n , th e p arties ag r ee th at n o o n e w a s ev e r actu ally

serv ed th e p etitio n , an d th e reco rd is in acco r d an ce w ith t h is b elief

. 5¶12. Following a hearing, Special Judge Hollis McGehee inf orm ed t he parties by e-m ail that he intended t o grant s um m ary judgm e nt and dism iss Bobby ’s claim s, and he ordered Montgom ery to s u

bm it a proposed order. Special Judge McGehee then issued an order that included the f

ollowing language: The Court

. . . f

i nds that neither p arty , and p articularly Plaintif f Bobby Leon Gibson . . . , has been able to produce any argum ent or authority which w o uld overcom e what the Court f inds t o be a “glaring error” i n Plaintif f ’ s claim : the Plaintif

f h im self , with present coun s e l, i ntentionally e lected to abandon the rem edy

that would have provided him with a review of

the very issue about which he now seeks to com plain.

. . . The ve r y issue Plaintif f com plains about i s one to which h e a greed b ef ore the Chancery Court of For[ r]est County

. How, in a court o f equity , c an a com petent p erson who h as appeared (whether in person or by his/her pleading

– a s w orn r epresentation to t he Court) and consented to a particular relief and ruling late r be heard to com plain about his own agreem ent? Notwithstanding Mr. Gibson’s agreem ent to the r elief about which he now com plains, the Court a f

f irm atively f

inds y et a n other u ndisputed f a ct t hat is o utcom e de t e r m inative: Mr. Gibson had pleadings pending bef ore the Chancery C ourt of For[ r]est C ounty , Honorable Judge Gam brell, a ddressing the very issues about which he now com plains and seeks recovery
. But Mr. Gibson, t hrough counsel, m ade the intentional decision to not pursue a claim that he not only could m ake but had m ade bef ore this very C o u r t

. C o u nsel acknowledged in the hearing on May 22 th a t t h e Plaintif f m ade a conscious decision not to pursue his own claim ed rights to pursue the rem edy to which he was entitled to pursue. Plaintif f m ade a conscious decision, with the benef it of c o u n sel who was clearly representing him , to abandon his rights in Chancery C ourt. Mr. Gibson, with advice of counsel, e lected to f orego his rights i n Chancery Court to pursue a negligence claim in Circuit Court. He n o w , u p o n the transf

er of the Circuit Court m atter back to Chancery Court, seeks to com

plain that he did n ot get the relief to which he f elt he was entitled. Yet, i n this very proceeding, Mr. Gibson intentionally elected not to pursue his own a l l e g ations of a right to relief

. Theref ore, under all principles of equity and at law, Mr. Gibson’ s c l a i m cannot withstand the test f or s um m ary judgm ent. Further, even setting all t hat aside, there is an additional reason the Plaintif f ’s claim cannot surv i v e W W M ’s Motion f or Sum m ary Judgm ent. Plaintif f has f ailed to m ake a showing suf f icient to establish the existence of one (here m ore than one) of the three elem ents of m a lpractice – (1) an

6attorney -client relationship – plaintif f f a ils here; (2) the attorney ’s negligence in handli n g the client’s af f airs – Plaintif

f f ails a t this p oint because he f ailed at t he f irst elem ent; and ( 3) proxim ate cause of injury

– here t he Plaintif f f ails again, com

pletely

. How can Plaintif f b e a l l owed to com e into this Court of equity com

plaining about his outcom e in the estate m atte r when he f irst consented to the relief he obtained and second, when he h ad a perf ect rem edy o r r o ute to h ave his claim or concern a d dressed but h e i ntentionall y a n d pointedly abandoned that r ight and opportunity to pursue a negligence claim in Circuit Court? Respectf ully , th i s i s astounding to the Court. It is tantam ount to a nd has the practical ef f ect of abandoning his proper rem edy in Chancery C ourt to address his comp l a i n t i n order to s hore u p h is negligence claim in Circuit Court. Such cannot be. ¶13. Bob b y t i me l y f

i l e d h i s Notice of Appeal and raises f our issues: 1) whether the doctrines of r es judicata or collateral estoppel bar Bobby ’s claim s, 2) whether judicial

e s t o p p e l precludes his m alpractice a ction, 3) whether the thirty -day period provided i n Section 11-1-39 requires dism i ssal, and 4) w hether there rem ains a g enuine issue of m aterial
f act as to the elem ents of

his legal-m alpractice and f iduciary -duty

claim s. STANDARD OF REVIEW ¶14. “W hen reviewing a trial court’s grant or denial of a m otion to dism iss or a m otion f or

sum m ary judgm ent, this Court applies a d e novo standard of review,” 8 and sum m ary j u d g m ent should be granted only when no g enuine issue of m a terial f act e xists and the

m oving p arty is e ntitled to judgm ent as a m atter of law. 9 Further, this Court v i e w s the evidence in the l ight m ost f avorable to the nonm oving party , 1 0 and “[ t]he m oving party has the burden of dem onstrating that [ no] genuine issue of m aterial f

act[ s ] exists, and the non8 B u rleso n v. L a th e m , 9 6 8 S o . 2 d 9 3 0 , 9 3 2 (M iss. 2 0 0 7 ).

9 M iss. R . C iv . P . 5 6 (c).

10 D u ck w o rth v. W

a rren , 1 0 S o . 3 d 4 3 3 , 4 3 6 (M iss. 2 0 0 9 ).

7m oving party m u st be given the benef

it of the d oubt concerning the existence of a m aterial
f act.” 11 Even w here the f

acts are undisputed, “[ s]um m ary j udgm e n t is inappropriate where there are undisputed f

a cts which are susceptible to m ore than one interpretation.” 12

ANALYSIS
I. Whether—because the chancellor entered a judgm e nt closing Debbie’s estate after Bobby ’s P e t i tion to Re-Open w as filed—the doctrines of res judicata o r collateral e stoppel preclude Bob b y ’s claim s. ¶15. Montgom ery and W W M assert that Bobby ’s claim s are precluded by the doctrines of both res judicata and collateral estoppel, but we disagree. Res Judicata ¶16. The doctrine of res judicata is “f undam ental to the equitable and e f f i cient o peration of the judiciary a nd ‘ref

lects the ref

usal of t he law to tolerate a m u ltiplicity of litigation.’” 13
“The courts cannot revisit adjudicated claim s and ‘ all grounds f or, or def enses to recovery that were available t o the parties in the f irst action, regardless of whether they were asserted

or determ i ned in the prior proceeding, are barred f rom re-litigation i n a subsequent s uit under the doctrine of res judicata .’” 14 ¶17. Four identities m

us t b e p resent f

or r es judicata to apply : ( a) i dentity of the subject

m atter of the action; ( 2) identity of the cause of action; (3) i dentity o f the parties to the cause

11 O n e S o u th , In c. v. H

o llo w ell , 9 6 3 S o . 2 d 1 1 5 6 , 1 1 6 0 (M i ss. 2 0 0 7 )

. 12 J o h n so n v. C

ity o f C levela n d , 8 4 6 S o . 2 d 1 0 3 1 , 1 0 3 6 (M i ss. 2 0 0 3 ).

13 C a rm ich a el , 1 7 S o . 3 d 1 0 8 7 , 1 0 9 0

. 14 H a rriso n v. C

h a n d ler-S a m p so n In s ., In c. , 8 9 1 S o . 2 d 2 2 4 , 2 3 2 (M iss. 2 0 0 5 ). 8of

action; and (4) identity of the quality

or character of a person against whom the claim is

m ade. 15 This Court also h as held that t here is to be a f if th r e q uirem ent—that the prior judgm ent m

u st be a f inal judgm ent on the m erits. 16 The absence o f any of these requirem ents “is f atal to the def

ense of res judicata .” 17 ¶18. Montgom ery and W W M argue that, because Bobby asserted a sim ilar factual account in his Petition to Re-open Debbie’s estate, res judicata preclu d e s h im f rom litigating his legal-m alpractice action w hich i s p redicated on the sam e f acts. Bobby indeed alleges alm ost identical f

acts in b oth his Petition to Re-open a nd his C om plaint, and t his Court reasonably could conclude that the two actions contain the sam e “identity of the subject m atter of the action.” ¶19. The “identity o f the cause o f action,” however, is absent. I n his Petition to Re-open, Bobby m erely asked that t h e e s tate proceedings be reopened t o f u rther i nvestigate alleged wrongf ul condu c t a n d s pecif

ically requested relief through t he creation of a constructive trust, injunctive relief

, and a n accounting of the conservatorship and estate. Imp o r t a n tly , within t he petition to reopen, B obby did not a ssert any legal-m a l p r a c t i c e or f iduciary -duty claim s. In other words, Bobby sought relie f s o l e l y within the context of the estate. Conversely , in his legal-m alpractice com plaint, Bobby specif

ically alleged claim s ( including
f iduciary -duty claim s)—arguing duty , breach, and causation—against M o n t gom ery and

15 E M C M o rtg . C o rp . v C a rm ich a e l , 1 7 S o . 3 d 1 0 8 7 , 1 0 9 0 (M iss. 2 0 0 9 ).

16 E sta te o f W h ite v. W h ite , 1 5 2 S o
. 3 d 3 1 4 , 3 1 7 (M iss. 2 0 1 4 ).

17 S tra it v. M cP h a il , 1 4 5 S o . 3 d 6 9 6 , 7 0 4 (M iss. C t. A p p
. 2 0 1 3 ) (q u o tin g C h a n n el v. L o ya co n o , 9 5 4 S o
. 2 d 4 1 5 , 4 2 4 (M i ss. 2 0 0 7 ) ). 9W W M, a nd he requested relief in the f orm of dam ages—both actual and punitive. S o, based

on this, the “identity of t he c ause of a ction” is not p resent and, cons equently , res judicata does not apply

. ¶20. A n d e v e n i f this identity were present, r es judicata cannot apply because the f i f t h identity —that the prior j udgm ent m ust be a f inal judgm ent on t he m erits—is not present. The chancellor never a djudicated Bobby ’s Petition to Re-open the e s tate, nor did she m ention it within her judgm ent or o rder c losing Debbie’s estate. No hearing o n B obby ’s petition was

ever held, and the chancellor entered her order t hree day s af ter Bobby f

iled his p etition. Not only d oes the record lack any evidence t hat the chancellor actually con s i d e r e d and determ ined the m erits of t he petition , i t c o n t a ins no evidence d em onstrating that the

c h a n c e llor was even aware that the petition had b een f iled bef ore entering her o rde r
. F o r these r easons, the chance l l o r ’ s o r d e r closing the estate w as not a “ final judgm ent on the
merits ” of

Bobby ’s m alpractice claim s. Collateral Estoppel ¶21. The d octrine of c o l l a t e r a l e s t o p p e l —of ten considered a cousin o f res judicata —serves

a “dual purpose” and “protects litigants f rom the burden o f re-litigating an identi c a l i s s u e with t h e sam e party or his privy ” and “prom otes judicial econom y by preventing needless litigation.” 18 “Collateral estoppel is ‘ an unusual exception t o the general rule t hat all f act questions should be litigated f ully in each case.’” 19 C ollateral estoppel precludes relitigating

18 M a yo r a n d B d

. o f A ld erm a n , C ity o f O cea n S p rings , Mi s s . v. H o m eb u ild ers A ss’n o f M iss., In c. , 9 3 2 S o . 2 d 4 4 , 5 9 (M iss. 2 0 0 6 ).

19 M a rcu m v. M

iss. V a lley G a s C

o . , 6 7 2 S o . 2 d 7 3 0 , 7 3 3 (M iss. 1 9 9 6 )

. 1 0a specif

ic issue, which was: (1) a ctually litigated in the f orm er action; (2) determ ined by the
f orm er action; and (3) essential to the judgm ent in the f o rm er action. 20 ¶22. Unlike res judicata , collateral estoppel a p plies only t o those issues actually litigated and not to those issues w h i c h m erely could have been litigated in t he prior suit. 21 Further, “where there is room f

or suspicion regarding the reliability of those f irst f a c t

- f i n dings, collateral estoppel should never be appli e d

. ” 2 2 A nd this Court h as held that both doctrines— res judicata a nd collateral estoppel—even if f ound to b e perm issible, “are not inf lexible com m ands which m ust be brutally

enf orced in all cases” 2 3 ¶23. M o ntgom e ry and W W M argue that collateral estoppel applies f or the sam e reas o n s they a r gue that res judicata applies—the sim ila r f a ctual recitations contained in Bobby ’s
p e t i tion a nd his com

plaint. But, f

or sim ilar reasons to those discussed conce r n i n g r e s judicata , we hold that collateral estoppel cannot a pply

. Quite sim

ply , a l l elem ents f

or collateral e stoppel are absent. The chancellor’s order f ails t o m ention Bobby ’s petition at all. The chancellor held no hearing on the p et i t i o n
. Indeed, she entered her o rder closing the

estate only three day s af

ter B obby f

iled his petition—which f urther i ndicates that she did not consider o r determ ine the m erits o f the petition. T he p etition, theref ore, was not actually litigated in the f

orm er a ction, was not determined by the f o r me r a c t i o n, and consequently

20 In re E sta t e o f S tu t ts v. S tu tts , 5 2 9 S o . 2 d 1 7 7 , 1 7 9 (M iss. 1 9 8 8 ).

21 C h a n n el v. L o

ya co n o , 9 5 4 S o . 2 d 4 1 5 , 4 2 4 (M iss. 2 0 0 7 ).

22 M iss. E m p ’t S ec. C

o m m ’n v. P

h ila d elp h ia M u n . S ep a ra te S ch . D ist. o

f N esh o b a C t y. , 4 3 7 S o . 2 d 3 8 8 , 3 9 6 (M iss. 1 9 8 3 ).

23 S ta te ex rel. M

o o re v. M o lp u s , 5 7 8 S o . 2 d 6 2 4 , 6 4 2 (M iss. 1 9 9 1 ).

1 1could not have b een essential t o the judgm ent. For t hese reasons, neither res judicata nor

collateral estoppel precludes Bobby ’s claim s. II. Whether—because Bobby joined and signed a m ajority of t he petitions during the est a t e p roceeding—the doctrine of judicial estoppel precludes Bobby ’s claim s. ¶24. M o n t g o me r y a nd W W M next a rgue t hat judicial estoppel bars B o b b y ’ s c l a i ms
. “Ju d i c ial estoppel is designed to p rotect t he judicial sy stem and applies where ‘intentional self -contradiction is being u sed as a m eans o f obtaining unf air advantage in a f

orum provided
f or suitors seeking justice.’” 24 T he doctrine arises “when one party asserts a position contrary
to o n e t a ken in a prior litigation,” 25 and “precludes a p arty f rom asserting a position, benef itting f rom that position, and then, when it becom es m ore convenient or prof it a b le, retreating f

rom that position later in the litigation.” 26 ¶25. This Court dem a nds that three e lem ents be m et f or judicial estoppel to apply : (1) the position m

ust b e clearly inconsistent with one taken during previous l itigation; (2) the court

m ust have accepted a n d r e l i ed on the previous position; and (3) the party m ust not have inadvertently tak e n t he i nconsistent position. 27 W hen t he party asserting the prior inconsistent position has n o t benefitted by the assertion, the doctrine s hould not be a pplied. 28

24 K irk v. P o p e , 9 7 3 S o . 2 d 9 8 1 , 9 9 1 (M iss. 2 0 0 7 ).

25 C la rk v. N eese , 1 3 1 S o . 3 d 5 5 6 , 5 6 0 (M i ss. 2 0 1 3 ).

26 In r e E sta t e o f R ich a rd so n , 9 0 3 S o
. 2 d 5 1 , 5 6 (q u o tin g D o ck in s v . A llred , 8 4 9 S o
. 2 d 1 5 1 , 1 5 5 (M iss. 2 0 0 3 )).

27 K irk , 9 7 3 S o . 2 d at 9 9 1 (M iss. 2 0 0 7 ).

28 M a u ck v. C o lu m b u s H

o tel C o . , 7 4 1 S o . 2 d 2 5 9 , 2 6 5 (M iss. 1 9 9 9 ). 1 2¶26. Montgom ery and W W M essentially argue that—because Bobby s igned and join e d t he various petitions f

iled throughout the estate proceedings

— he cannot now take a con t r a r y position by alleging m alpractice on the part of the a ttorney s in handling the estate. W e agree with Montgom ery and W W M that the f irst two elem ents of judicial e stoppel are m et. No one d i s putes that Bobby indeed signed and joined in m o st of the petitions f iled conce r n i n g t h e conservatorship and e state proceedings. F u rther, 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 wh e n t h e i n c o n s i s t e nt position w as not taken inadvertently

. I f Bobby ’s assertions prove to be true, and his claim s later prove to be

m eritorious, then he signed t he petitions either because h e had r eceived bad advice f rom his attorney , or because his attorney had breached a f iduciary duty to him by f a i l i n g to f

ully
inf orm him of the im plications of

signing the petitions. ¶28. For instance, B o b b y a l l e g es Montgom ery should have inf orm ed him t hat he had a right t o r enounce the will and that, had he done so, Bobby would have received a larger share of the estate. A l so, prior to signing, Montgom ery f ailed to notif

y Bobby that Debbie’s conservatorship account had been depleted by m ore than a quarter of a m illion dollars, to a

m ere $4,000. Bobby also alleges he agreed to c o ntribute a portion of h is l if e-insurance proceeds to the estate only because Montgom e ry persuaded him to do s o by representing to him t hat f ailure t o give up the proceeds would r esult in Bobby ’s loss of certain p roperty that had sentim ental v alue. Based on Bobby ’s allegations

— w h i c h w e must accept as true f or

1 3purposes of sum m ary judgm ent—we hold that, at t he very least, Bobby inadvertently took

these inconsistent positions, thus precluding judicial estoppel. ¶29. Additionally , judicial estoppel c a n n o t a p p l y because i t cannot be said that Bobby benef itted by taking these prior positions—in f a ct, quite the contrary

. Bobby lost $50,000
in lif e-insurance proceeds due t o M o n t g om ery ’s representations and threat that the guns—which were worth f ar less than $50,000, and which had sentim e n tal value to Bobby —would be so l d

. W hat i s m ore, Bobby actually received n othing u nder the will. Debbie devised certain real property to Bobby but these f ailed to pass under the will. 29 And

a l t h o u g h Debbie purported t o b equeath to Bobby f unds in two b ank accounts, those f u n d s did not pass because those two accounts had been drained and closed prior to her death. ¶30. In f

act, the only

real “benef

it” obtained by

Bobby in signing these petitions was the acquisition of three guns, val u e d a t only a little m ore than $14,000, f or which he paid $50,000 in insurance proceeds. If the f actf i nder determ ines that an attorney -client relationship existed between Montgom ery and Bobby , then M ontgom ery h ad a duty to advise Bobby o f what w a s i n h i s b est interest, including the f act that he sim

p ly could have purchased the g uns f

or $14,000 rather than giving up $50,000 in lif e - insurance proceeds that belonged o nly to him , separate and apart f rom the estate. F urther, as discussed b elow, Bobby
g a v e up his right t o receive half of a s ubstantial am ount of property that passed under

29 T h e realty f

ailed to p ass u n d e r th e w ill b ecau se o n e o f th ree th in g s: 1 ) B o b b y an d D e b b ie o w n ed th e p ro p erty as j o in t ten an t s w ith th e rig h ts o f su r v iv o rsh ip , 2 ) B o b b y o w n ed th e lan d s ep arately p rio r to th eir m arriag e, o r 3 ) th e p ro p erty h ad b een d isp o s e d o f p rio r to D e b b ie’s d eath

. 1 4Debbie’s will to her son Miles Sm ith. For t hese reasons, judicial estoppel does not preclude

Bobby ’s legal-m alpractice action.
III. Whether—because Bobby failed t o refile his com pl a i n t w ith t he Chancery Court of Forrest County after the case w as transferred from the Circuit Court of Forrest C ounty —Section 11-1-39 requires dism issal of Bobby ’s com plaint. ¶31. M o n t g o m e r

y a n d W W M a d d i t i o n a l l y c o n t e n d t h a t S e c t i o n 1 1

- 1-39 m andates dism issal of Bobby ’s com

plaint, but their reliance on this statute is m ispla ced. Mississippi Code Section 11-1-39 provides that, af ter a case i s transf

erred f rom one court to anoth e r , “ the

com plainant o r plaintif

f shall f i le his declaration o r bill i n the court to which the c ause was transf erred within thirty d ay s, unless the court, judge, or chancellor shall restrict the tim e or grant f urther tim e.” 30 ¶32. Requirem ents f

or am ending or ref

i ling com plaints are procedural m a t t e r s t h a t are governed by the Mississippi Rules of Civil P rocedure, 31 w hich do not require a plaintif f to ref ile a com plaint within thirty day s a f ter a case is transf

erred f rom circuit court to chancery court. Accordingly , this argum ent is without m erit.
IV. Whether Bobby has dem onstrated the presence of a genuine issue of m aterial fact regarding his legal-m alpractice and fiduciary
- duty claim s. ¶33. Montgom ery and W W M argue that B obby f ailed t o ma k e o u t a prima facie legalm alpractice claim because he can dem onstrate neither t h e e x i s t e n ce of an attorney -client

30 M i ss. C o d e A n n . § 1 1

- 1 -3 9 (R ev . 2 0 1 4 ).

31 S ee W im ley v. R e id , 9 9 1 S o . 2 d 1 3 5 , 1 3 8 (M iss. 2 0 0 8 ). 1 5relationship nor causation. M ontgom ery and W W M f urther assert t hat Bobby has “f ailed to establish the existence of a f iduciary duty .” W e d isagree with both assertions. A. Legal-Malpractice Claim ¶34. For l egal-m alpractice claim s predicated on negligence, the plaintif f “m u st prove by

a preponderance of the e vidence: (a) the existence of an a ttorney

- client rela t i o n s h ip; (2) negligence on the part of the lawy er in handling the af f a irs o f t h e c lient w hich have been entrusted to the lawy e r; and (3) p r oxim ate cause of t he injury

. ” 3 2 But, im portantly , f

or this ty pe of claim , “an attorney -client relationship is an essential elem e nt,” and the absence of such a relationship is f

atal. 33
1

. Attorney -Client Relationship ¶ 35. According to this Court, a relationship between a lawy er and client arises when:

(1) a person m anif

e sts to a lawy er t he p erson’s intent that the lawy er provide legal services f

or the person; and either: (a) the lawy er m anif

ests to the person the consent to do so; or (b) the lawy er f

ails to m anif

est lack of consent to d o s o , a nd the lawy e r re a s o n a bly knows or should know that the person reasonably relies on the lawy er to prove services . . . . 3 4

32 P ierce v. C o o k , 9 9 2 S o . 2 d 6 1 2 , 6 1 7 (M iss. 2 0 0 8 )

. 33 G rea t A m erica n E & S In s. C o . v. Q u in ta iro s, P

rieto , W o o d & B o yer, P .A . , 1 0 0 S o . 3 d 4 2 0 , 4 2 5 (M iss. 2 0 1 2 ).

34 S in g leto n v. S

teg a ll , 5 8 0 S o
. 2 d 1 2 4 2 , 1 2 4 4 n .2 (M iss. 1 9 9 1 ) (citin g A m erican L aw In stitu te, R esta tem en t o

f th e L a w : T

h e L a w G o v ern in g L a w

yers § 2 6 (P relim

. D raf

t N o
. 6 , Ju ly 2 5 , 1 9 9 0 )) (em

p h asis ad d ed ). 1 6¶36. Bobby argues—and we agree—that a genuine i ssue of m aterial f a ct rem ains as to the existence of an attorney -client relationship between him s elf a nd Montgom ery
. Bobby points

to the com

bined p etition entitled “Notif ication of D eath of Deborah Miles Gibson; Petition
f or Probate of Last W ill a nd Testam ent of Deborah Miles Gibson; a nd Pe t i tion to Convert Conservatorship i nto Estate Proceeding, to Appoint David Earl Miles as Executor, and to Allow Reasonable T im e f or the F iling of Final Accounting b y Michael L. Miles, Conservator
h e r e i n,” in which Bobby signed as a “Petitioner” and Montgom ery s i gned as an “Attorney
f or Petitioner[ s].” At oral argum ent, counsel f or M ontgom ery argued that this designation was a scrivener’s error. Perhaps it was, but that is a decision to be m a de by the f actf inder. ¶37. Bobby also a rgues that the m eeting held at the of f ice of W W M f

urther evidences an attorney -client relationship because, at this me e t ing, M ontgom ery advised him —as an attorney —to sign the petition a n d to deduct $50,000 f rom h is lif

e-insurance proceeds to satisf y a bequest in Debbie’s will. ¶38. I n E d

m o nds v. William son , the p laintif f pursued claim s f

or legal m a lpra c t i c e a n d breach of f

iduciary duty against def

endants. 3 5 In reviewing the t rial court’s decision that the plaintif f cou l d not establish a legal-m alpractice claim against the def endants, this Court considered whether the plaintif f had dem onst rated the existence o f an attorney -client

r elationship and held that an attorney -client relationship d id e x ist between t he partie s b e c a u s e

35 E d m o n d s v. W illia m so n , 1 3 S o . 3 d 1 2 8 3 , 1 2 8 9 (M iss. 2 0 0 9 ).

1 7the def

endant—in his response to the plaintif f ’s com plaint—adm itted to t he existence of an attorney -client relationship. 36 ¶39. The f

acts presented here—in the context of sum m ary judgm ent, which r equires us to view t he f acts in the light m ost f

avorable to the n onm o ving p arty —can be com

pared to those presented in Edm onds , in which the def e n d a n t adm itted to an attorney -client relationship with the plaintif

f

. Here, b y signi n g t h e p etition as an “ attorney f or the petitioner” in a pleading to the court that listed Bobby as a “petitioner,” Montgom ery not only represented

to B obby that he w as his a ttorney , b ut he m ade that sam e representation to the court. For purposes of sum m ary

judgm ent, this certainly

should rise to the level of an adm ission. ¶40. Rule 11 of t he Mississippi Rules of Civil Procedure also supports Bobby ’s argum ent. Rule 11 states “ the signature of an attorney c onstitutes a certif icate t hat the attorney has read the pleading or m otion; that t o t he best o f the attorney ’s k nowledge, inf

orm ation, and belief there is good ground to support it

. . . . ” 37 S o , i n accordance with this rule, when Montgom ery signed the petition as “attorney f or petitioner,” he certif

ied to the court that this representation was true and accurate. ¶41. We note that the f ollowing c oncerns expressed by the Special J u d g e d u r i n g t h e hearing on W W M ’s and Montgom ery ’s m otion to dism iss a nd/or s um m a r y judgm ent shed
f urther light on this issue:
I m ean, I don’t know, I m ean, here’s m y concern about y our Motion as the posture that t he case is in this m orning, is that i t appears t hat at a point i n tim e

36 Id .
37 M i ss. R . C iv . P

. 1 1 (a). 1 8when y o u r c lients, as well a s the Howdeshell g roup, f iled that Petition, t hat this gentlem an [ Bobby ] had no ot h e r – well, I d on’t know if he had any other counsel or not. But they

represented them s elves as being his counsel and he signed of f on t hat. And there wasn’t a hearing. And it appears that he w aived his right of renunciation and other, m ay b e other signif

icant ri g h t s , w ithout having appeared bef

ore the Chancellor, at least as I understand it. And that’s m y concern in an n utshell in term s of the crux o f y our [ M]otion this m orning. ¶42. So, because this Court r eviews a m otion f or sum m ary judgm e nt de novo , and because this Court m

ust view the eviden c e in the light m o st f avorable to the nonm oving party , we

m ust hold that there rem ains a genuine issue o f m a terial f act concerning the existence of an attorney -client relationship. 2. Negligence ¶43. Because we hold t ha t a g e n u i n e i s s u e o f f a c t r e m ains as to the existence of an attorney -client relationship, we n ow address the rem aining elem ents f or a legal-m a lpractice claim , the second of which is that the plaintif f m ust prove by a preponderance of the evidence “neglig e n c e o n t h e part of the lawy er in handling the af f airs e ntrusted to him .” 38 Lawy ers owe their clients the duties of loy alty and care. 39 ¶44. Montgom ery allegedly advised Bobby to sign a petiti o n w h i c h e f f ectively waived
im p ortant rights—including the rights to r enounce and c o ntest Debbie’s will—without f irst
inf orm ing him of the consequences of such actions. F u r ther, Montgom ery allegedly instructed Bobby t hat if he signed the com bined petition, he would r eceive “big m oney ,” but that if h e did not sign, the e state would s ell c ertain g uns w h i c h h a d s entim ental value to

38 C en tu r y 2 1 D e ep S o u th P

ro p s., L td . v. C o rso n , 6 1 2 S o
. 2 d 3 5 9 , 3 7 2 (M i ss. 1 9 9 2 ).

39 P ierce v. C o o k , 9 9 2 S o . 2 d 6 1 2 , 6 1 7 (M iss. 2 0 0 8 )

.

1 9Bobby

. And Montgom ery allegedly encouraged Bobby to de d uct $50,000 f rom lifeinsurance proceeds to f

und a b equest to his gr a n d s o n when every o ther bequest in the will

was f unded a nd settled by Miles Sm ith—Debbie’s son. B ased on these allegations, a genuine issue of m aterial f

act e x i s t s a s to whether M ontgom ery b reached the duties of loy alty and care owed by

him to Bobby

. 3. Proxim ate Cause and Injury ¶ 45. F i n a l l y , w e a ddress the third a n d f o u r t h e l e me n t s o f a l e g a l

- ma l p r a c t i c e claim —proxim ate cause and injury

. 40 In a negligence-based m alpractice action, the plaintif f
“m ust establish proxim ate cause by the so-called ‘trial-within-a-trial’ t est,” and “‘m ust show that, but f or [ his] attorney ’s negligence, he would have b een successf ul i n the prosecution or def ense of the underly ing action.’” 41 ¶46. M o n t g o m e r

y and W W M argue that Bobby cannot show causation “beca u s e [h e ] s o l e l y caused his own a lleged dam ages,” but we disagree. Due to Montgom ery ’s alleged wrongf ul actions, Bobby

suf f ered a f airly substantial injury

. ¶47. First, had M o n t g o me r y n o t i n d u c e d B obby to sign the petition in which Bobby unknowingly waived his rights to renounce a n d c o n t e s t Debbie’s w ill, Bobby could have renounced Debbie’s will, resulting in a substantially larger inheritance f

rom his late wif

e’s

estate. In p articular, had he renounced Debbie’s w ill, Bobby would have received “such part of [ D ebbie’s] estate, real and personal, as [ he] would have been entitled to if [ Debbie] had

40 E d m o n d s , 1 3 S o . 3 d at 1 2 9 0

. 41 C rist v. L o ya c o n o , 6 5 S o . 3 d 8 3 7 , 8 4 2 (M iss. 2 0 1 1 )

.

2 0died intestate, except that, even if [ Debbie] lef t no children or descendant of such, [ Bobby ],
upon r enouncing, shall be entitled to [ ] one-half ( 1⁄2) of the re a l a n d p e r sonal estate of [ Debbie].” 42 Pursuant to Debbie’s will, Miles Sm ith inherited:
All of [ her] s tock in J oe N. Miles & Sons, Inc.; the County Line Grocery with all inventory

and contents, as well as the approxim ately f ive (5) acres of

real estate i n Forrest County , Mississippi, upon which it is situated; a l l of [ her] r eal property owned in Forrest County , Mississippi; all of [ her] interest i n the L o d g e Mahal in Pearl River County , Mississippi; a l l of [ her] real prope r t y owned i n Forrest County and Lawrence County , Mississippi; any and all other real estate owned by m e in the State of Mississippi not hereinabove devised to some o n e e lse, as well as m y trust f u nd at BancorpSouth, Hattiesburg, Mississippi, and any a ll personal property owned b y m e at the tim e o f m y death not listed in the handwritten list of personal p roperty ref erred to i n Paragraph X below. ¶48. Pursuant to Section 91-5-25, had Bobby c hosen to renounce Debbie’s will, he would have received a p ortion of the above-m entioned property

. So, but f or M ontgom ery ’s alleged wrongf ul conduct—by advising B obby to sign the c om bined p etition renouncing im portant rights w ithout f

irst explaining the consequences of such an action—Bobby could h ave, and likely w ould have, c hosen t o renounce Debbie’s will and c o nsequently would have received

a m uch larger inheritance. ¶49. Further, but f

or Montgom ery ’s act i o n s

— a c c o r d i n g t o B o b b y ’ s a l l e g a t i ons—of encouraging, or coercing, Bobby to deduct $50,000 f rom the l if

e-insurance proceeds to f

und

a bequest i n D e b b i e ’ s will—Bobby would h ave received $50,000 m ore than he did. For these r easons, Bobby has established—at the very least—a genuine issue of m aterial f act as to the elem ents of

“causation” and “injury .”

42 M i ss. C o d e A n n . § 9 1

- 5 -2 5 (R ev . 2 0 1 3 ). 2 1B . Fiduciary-Duty Claim

¶50. It is axiom atic t hat “ a f i d u c i a r y d u t y mu s t e x ist bef ore a b reach o f the duty can occur.” 43 Attorney -client relationships give rise to f iduciary duties as evidenced by t h i s Court’s recognition o f l e g a l

- ma l practice claim s based on f iduciary obligations. 44 And as discussed earlier, we hold that a genui n e issue of m aterial f act r em ains on t he issue of whether such a relationship existed between Montgom ery and Bobby

. ¶51. But the absence o f an attorney -client relationship does not f oreclose the possibility

of the existence of a f

iduciary relationship. In Mississippi, “[ a] f iduciary relationship m ay arise
in a legal, m oral, dom estic, or personal context, where th e r e a p p ears ‘on the one side an

overm astering inf

luence o r, on the ot h e r , w e a kness, dependence, or trust, justif iably reposed.’” 45 So f

iduciaries’ d

uties ma y a r i se as a m atter of law f r om certain specif

ied relationships such a s attorney and client; or they m ay be created b y the f acts and circum stances of

a particular relationship, taking into account the above f actors. ¶52. In Baker D o n e l

s o n , w e r e c o g n i z e d t h a t , f or decades, this C ourt has held that
f iduciary relationships can a rise in a variety of contexts, and that relationships between attorney s a n d third parties can give rise t o a f i duciary r elationship—and the requisite

43 B a k e r D o n elso n B ea rm a n C a ld w ell & B erk o w itz, P

.C . v. S ea y , 4 2 S o
. 3 d 4 7 4 , 4 8 5 (M iss. 2 0 1 0 ) (citin g B lack ’s L aw D ictio n a ry 5 6 4 (5 th ed . 1 9 7 9 )).

44 S ee C rist v. L o y a co n o , 6 5 S o . 3 d 8 3 7 , 8 4 2 (M iss. 2 0 1 1 )

. 45 Id . (citin g M

iln er v. B erta si , 5 3 0 S o
. 2 d 1 6 8 , 1 7 0 (M iss. 1 9 8 8 ); M a t ter o f E sta te o f H a n ey , 5 1 6 S o . 2 d 1 3 5 9 (M iss. 1 9 8 7 )) (em p h asis ad d ed ). 2 2f

iduciary duties—despite the absence of an actual “attorne y - c l ient” relationship. 46 Accordingly , the general rule in Mississippi is that, under certain f acts a n d circum stances, attorney s c an a cquire f

iduciary o bligations to t hird p arties who a re not t heir clients where no attorney -clie n t r e l a

t i o n s h i p i s p r e sent. 47 Fiduciary relationships of ten turn on questions of f

act related to exertion of inf luence, w hether a party trusted a nd r elied on anoth e r p a r t y , a nd whether the reliance was justif ied. ¶53. I n o t h e r w o r d s , while i t is true that we have never held—and we d o n o t h o l d today —that attorney s f

or e states alway s o we f

iduciary d uties to e very estate benef iciary , we
see no reason to carve out a rule o f special protection f

or estate attorney s, exem

pting them
f rom any benef

iciary claim of a f

iduciary relationship. An attorney f or t he estate m ay , under certain circum stances, owe f iduciary duties to a benef iciary of the estate b ased on the sam e considerations relevant t o d e t e rm ine f iduciary d uties to all third p arties. T he e xistence of thes e f iduciary relationships are q uestions t o b e determ ined in the trial court, and here, we believe suf

f i cient evidence exists in the record f or a f a ctf inder to conclude that Montgom ery owed Bobby

f iduciary duties, even without a f

inding of an attorney -client relationship. ¶54. And, should the trial court f ind that Montgom ery assum ed f iduciary duties to Bobby ,

we a lso f

ind that—viewing the f acts and allegations in the light m ost f avorable to Bobby —Montgom ery a llege d l y i n d u c e d B o b b y i n t o s i g n i n g a p e t i t i on w ithout f irst inf orm ing
him of t he cons e q u ences. This, in ef f ect, caused Bobby t o waive his statutory rights to

46 B a k er D o n elso n , 4 2 S o . 3 d 4 7 4 , 4 8 5 (M iss. 2 0 1 0 ).

47 Id . 2 3contest a nd renounce Debbie’s will. Montgom ery approached B obby under circum stances

which, if not enough to create an a ttorney -client relationship, could support an inf erence of dependenc e a n d t r u s t , as Montgom ery purported to have Bobby ’s i nterests i n m ind and to

e x e r c i s e control over Debbie’s estate. There is evidence in the record to support Bobby ’s claim that Montgom ery coerced o r c om pelled him to d educt $50,000 of l if e-insurance proceeds to f

und a bequest in Debbie’s will. These acts, if true—and a s sum ing a f iduciary relationship is f

o und to have existed—would constitute a breach of that f iduciary duty

. So genuine issues of

m aterial f

a ct rem ain regarding Bobby ’s f iduciary -duty

claim s. ¶55. To be clear, we do not a ddress today the duties of attorney s who r epresent executors and adm inistrators of estates. Montgom ery claim s he was the attorney f or the e state and not f or the executor of the estate. In t h irty f ilin g s w i t h th e t rial co u r

t, M o n tg o m ery w as eith er listed as o r sig n ed as th e “atto rn ey f o r th e E state.” In d eed , w e a re u n ab le to lo cate a sin g le
f ilin g in w h ich M o n tg o m ery id e n tif ies h im self as, o r claim s to b e, an atto r n e y f o r th e

ex ecu to r
. A d d itio n ally , M o n tg o m ery is id en tif ied as atto rn ey f

o r th e estate w ith i n th e trial

tran scrip t an d t h e ap p ellee’s b rief

. A n d f in ally w e n o t e th at, w ith in th e f irst f iv e m in u tes at

o ral arg u m en t, M o n tg o m ery ’s o w n co u n sel u n eq u iv o cally stated th at n o th in g in th e reco rd
in d icates a n y

th in g o th er th an th at M o n tg o m ery an d h is law f irm acted as atto rn e y s f

o r th e E s tate. CONCLUSION ¶56. In sum , B o b b y ’ s l e g a l

- m a lpractice action is not precluded by the doctrines of res judicata , c ollateral estoppel, or judicial estoppel

. F u r t h erm ore, Section 11-1-39 does not

2 4apply to require dism issal of Bobby ’s claim s. And f i nally , we hold that B o b b y h as dem onstrated that genuine issues of m aterial f act exist regarding the elem e nts of his legalm alpractice and f

iduciary -duty

claim s
. ¶57. W e m ake no determ ination as to the underly ing m erits of Bobby ’s claim s, as the only issue bef ore this Court is whether Bobby has dem onstrated the existence of genuine issues of m aterial f

act, so that the trial court’s grant of sum m ary judgm ent was im proper. W e hold that he has. Accordingly , we reverse the trial court’s grant of sum m ary j udgm ent and rem and this case to the Chancery Court of Forrest County f or f urther proceedings consistent with this opinion. ¶58. REVERSED AND REMANDED. WALLER, C.J., LAMAR, KITCHENS, KING, COLEMAN AND M AX WELL, JJ., CONCUR. RANDOLPH, P.J., AND BEAM, J., NOT PARTICIPATING.

2 5