IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-01787-COA
KEITH O’BRIEN APPELLANT

v. ANDY J. ALFONSO, III APPELLEE DATE OF JUDGMENT: 11/17/2016 TRIAL JUDGE: HON. JAYE A. BRADLEY COURT FROM W HICH APPEALED: JACKSON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: COURTNEY PARKER W ILSON ATTORNEY FOR APPELLEE: ANDY J. ALFONSO III (PRO SE) NATURE OF THE CASE: CIVIL - LEGAL MALPRACTICE DISPOSITION: REVERSED AND REMANDED - 02/27/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. CARLTON, J., FOR THE COURT: ¶1. Keith O’Brien f

iled a com

plaint to conf

i rm and q uiet title, se t a s i d e d eed, or, in the alternative, ref

orm deed, and f

or dam ages against M ichael Rogers, M ary Ann Rogers, reales t a t e a t t o rney Andy J

. Alf onso III, Coldwell Banker Alf onso Realty Inc., and Chery l O’Brien (collectively , the Def e ndants). Keith’s com

p lain t also i ncluded a c laim of legal

m alpractice against Andy

. Af te r a trial, the Jackson County Chancery Court e ntered a judgm ent deny ing relief

. ¶2. Keith n ow appeals the chancellor’s judgm ent a nd argues that the chancellor erred in
f i nding that Keith f

ailed to prove that Andy c om m itted legal m alpractice in prepar i n g a n allegedly erroneous warranty deed convey ing Keith’s property

. F i n d i n g e r r o r , w e r e v erse andrem and to the chancery court f or a determ ination of

dam ages. FACTS ¶3. In 1998, Keith a nd his then-wif e, Chery l , purchased 8

. 9 a c r e s in J a ckson County , Mississippi, and constructed a house on the p roperty

. The phy sical address f or the house is 6331 Jim Ram sey Road. ¶4. In January 2005, K eith and Chery l decided to sell their house located a t 6 3 3 1 J im
Ram sey Road, along w ith 2.3 acres of l and surrounding the house. Keith and Chery l listed their house and the acreage w ith r e a l

- e s t ate agent Shirley W illard of Coldwell Banker
Alf onso Realty Inc. ( A lf

onso Realty ). The property listing p repared by Shirley ref lects a listing price of $ 198,500 f o r the 2,400 square f

o ot, three bedroom , 2.5 b athroom house and the 2.3 acres of

land. ¶5. A f t e r listing their house and the 2.3 acres f or s ale, Keith and C hery l convey ed 1.23

acres of their rem aining property to their daughter and son-in-law, K hristina and Scott Storm , via a quitclaim

deed on May 17, 2005. The r ecord shows that this 1.23-acre parcel of land

was located in the m iddle of the 8.9 acres owned by Keith and C hery l. In deeding the land

to t he Storm s, Keith h ad the entire 8.9 acres survey ed and then divided into three parcels, each w ith a dif

f erent address. For the 1.23-acre parcel of land he deeded to the Storm s, Keith established a n address of 6325 Jim Ram sey Road. Keith testif i ed that he f

i led t he q uitclaim deed and survey

in the land records. ¶6. The record a lso r e f l ects that Keith and Chery l intended to k eep the rem aining back parcel of land, which consisted o f f ive acres, and build another house. Keith established the

2address of

6327 Jim Ram sey Road f or the rem aining f

ive acres of

land. ¶7. Keith t e stif

ied that about a m onth af ter h e a nd Chery l deeded the 1

. 2 3 a c r e s to the
Storm s , he received a call f rom Shirley inf

orm ing him that she had f ound a buy er f

or Keith and C hery l’s h o use a nd 2.3 acre s. Keith and Chery l eventually accepted an of f er f rom Michael and Mary

Ann Rogers. The record ref l ects that Mary

Ann is Shirley ’s niece. ¶8. Alf

onso Realty recom m ended that K e i t h r e t a i n A n d

y t o p r e p a r e t h e r e a l

- estate contract and deed and execute the loan closing on the p roperty

. 1 Keith and A ndy both testif

ied that they had never spoken to o ne another prior t o the closing in July 200 5

. T he record shows that S hirley com m

unicated with Keith and A ndy separately regarding the r e a l -estate
t r a n s a c t ion. Keith t estif ied t hat at the closing, he signed the papers provided to him, including the warranty deed prepared by Andy

. Keith stated that when he was presented with the warranty deed to s ign, n o one explained to him what h e w as convey ing through signing the deed. ¶9. As we w ill discuss i n length later in this opinion, A ndy adm itted that a n attorney -client relationship existed between him and Keith and the Rogers f a m ily

. Andy ’s trial testim ony ref lects that he f

ailed to discover that Keith had p reviously d eeded t h e 1

. 2 3

- a c r e m iddle parcel t o the Storm s. A t trial, Andy testif ied regarding his t itle search on Keith’s property as f o llows: Q. W hen y ou did y our title search, did it not pop up the f act that [ Keith], prior to the loan closing, didn’t actually own the entire 8.9 acres?
A. I ’d have to g o back, b ut there should have probably b een a l e s s

1 T h e reco r d ref

l ects th at A n d y

h as n o af f iliatio n w ith A lf

o n so R e alty

. 3and—well, not probably . There should have been a l ess a nd e x cept for that one point som ething acres, the Storm property in t he m iddle. That should have appeared on the deed. Q. But y ou didn’t catch that and put that on the deed?
A. I’m

not sure if

I did or didn’t. Q. You’ve . . . still got the [ w]arranty [ d]eed?
A. I do. Yea[ h]. It’s not in the deed. The less and ex cept is not there. (Em phasis added). ¶10. Keith testif

ied at trial t hat at the e n d o f 2 0 0 6, t he Rogers f am ily contacted him

and

com plained that they

were pay ing higher-than-norm al property taxes f or the house and 2.3

acres located at 6 3 31 Jim Ram sey Road. The Rogerses e v entually discovered that due to a

m istake in the deed, they w ere pay ing p roperty taxes f o r the e ntire 8.9 acres of p roperty

. The record additionally shows that concurrent with t he c l osing of the property , the Rogerses’ f irst deed of trust and f

irst m ortgage had already attached to the property

. ¶11. Keith testif

ied that upon learning of

the m i stake in the deed, he went t o the Jackson County l and-records o f

f ice where he was inf

orm ed t hat the deed prepared by Andy c onvey ed

a l l 8.9 acres to the Rogerses, rather than the 2.3 acres listed f or sale. Keith im m e d i a t e l y
contact e d A l f

o n so Realty and A ndy about the e r ror. Keith testif

ied that Alf

o nso Realty conf irm ed to him that “when t hey closed that d eed, they closed it on t he whole 8.9 [ acres].” Keith explained to Alf

onso Realty that “there is a chunk of land in the m iddle that [ he] didn’t own,” ref erring to the 1 .23 a cres he deeded t o the Storm s prior to the real-estate transaction

at i ssue. Keith t estif

ied that Alf

onso Realty then told h im , “[ Andy ] had done a less and

4except

. . . so they j ust kin d o f s u b t r a c ted the 1.23 a c res of the Storm s out of it and now

closed it out with the two unconnected parcels.” ¶12. Alf

onso Realty a nd Andy assured Keith t hat they would correct the deed. H owever, the r ecord ref

lects that once the Rogerses learned that they owned 8.9 acres, r ather than 2.3, they obtained a second m ortgage encum bering the entire 8.9 acres. ¶13. Andy testif

ied that af ter Keith alerted h im to the incorrect deed, he prepared corrective instrum ents f

or Keith t o sign. Andy testif ied th a t h e also had several c onversations with Chery l, as well as the R o gerses, and “none of them would com e sign t hese corrective
i n s t r u me nts.” However, K eith disputed that Andy ever c o ntacted him to sign correct i v e i nstrum ents. Keith explained that the Rogers f am ily had already encum

bered the propert y with a m ortgage upon closing and a second m ortgage upon learning that the warranty deed
convey ed the entire 8.9 acres, rather than the 2.3 acres intended to be sold. The record also shows that Keith stated that he could not f orce the Rogers f

am ily to convey the property back

to h im , particularly since the property was encum bered. The r ecord ref

lects that at trial, the
f ollowing exchange occurred during Andy ’s cross-exam i nation of Keith: Q. You brought m e the survey m onths later af ter all of this took place and y ou f ound out that, I guess, there was a clerical m istake with the deed that was p repared. And, actually , none of m y s ecretaries w ere there t hat day

. I w as there m y self

. And w e m et. You brought the survey s to m e, we took a look a t them , and y o u asked m e to prepare s o m e corrective instrum ents t hat we needed to strai ghten i t out. And y ou pointed out that m i ddle a c r e a g e, y ou pointed o ut the back f ive acres, a nd y ou pointed out t he f

ront acres. Af

ter preparing those, I gave y ou a call to com e sign the corrective instrum ents s o we c o uld get s om ething on f ile down at the courthouse that would put every body and their grandm other on notice that there was an issue, at least. W hy didn’t y ou com e?

5A. You never approached m e about i t

. In f act, the conversation we had was that y o u said the Rogers[ es] had backed out o f signing it. I a ssure every body in this courtroom , I would have clim b e d o ver brick walls and ran t hrough f

i re to get d own there to s i g n w hat y ou’re talking about. ¶14. On June 6, 2 008, Keith f iled his com

p laint to conf

irm a n d q u i e t title, s et aside the deed, o r, in t he alternative, ref orm the deed, and f

o r dam ages against the Def e ndants in the Jackson County Chancery C ourt. 2 In his com plaint, Keith allege d t h a t A lf onso Realty breached its contract with Keith a nd Chery l by f ailing t o protect their i nterests and causing them to execute the w arranty deed selling all of their p roperty , r ather than just a portion, to the Rogerses. Keith also alleged that Andy w a s n e g l i gent in p reparing t he deed. Keith requested dam ages f

or em otional distress, depreciation in t h e value o f his real estate, and inconvenience, as well as attorney ’s f e es. ¶15. On Novem

ber 7, 2008, Keith requested that the chancery clerk e n t e r a n e n t r y o f def ault against the Rogerses as a result of their f ailure to appear, plead, or otherwise def end against K eith’s c om

plaint. The record ref

l ects that the chancery c ourt entered the entry of

2 T h e reco rd ref

lects th at C h ery l f

ailed to f ile an an sw er o r d ef

e n d ag ain st K eith ’s su it. D u rin g K eith ’s d ep o s itio n in 2 0 1 0 , K eith stated it w as “ p o ssib l e” th at a d ef a u l t j u d g m en t w a s en tered ag ain st C h e ry l f o r h er f ailu re to an sw er th e co m

p lain t. T h e d ep o s itio n tran scrip t also ref l ects th a t co u n sel f

o r A lf o n so R ealty ask ed K eith ’s co u n sel w h eth er th ey “[ h a d ] tak en an actu al j u d g m e n t o r j u st d ef au lt” ag ain st C h ery l , a n d K eith ’s co u n sel resp o n d ed “j u d g m en t,” b u t ex p lain ed th at h e d id n o t k n o w th e am o u n t. A t trial, w h e n ask ed w h y C h ery l w as n am ed as a d ef en d an t in th e law su it, K e ith resp o n d ed , “I’m n o t real su re.” H e later ex p lain ed : A t th at tim e , w e w ere f

i g h tin g a d iv o rce. A n d as a c o m m u n ity p ro p erty sp lit, sh e w as g iv en so m e p r o p erty i n H arriso n C o u n ty , an d th en I w as g i v e n h er sig n ed -o v er r ig h ts to w h atev er I co u ld ev er reco v er o u t o f th is Jim R a m s[ e] y p ro p erty , an d I d o n ’ t really k n o w . 6def

ault on Novem

ber 7, 2008. ¶16. On Decem

ber 19, 2008, the chancery court entered an order transf erring the case to circuit court, explaining that af ter reviewing the pleadings, “the circuit c o u r t i s t he appropriate court to hea r this m atter.” The chancellor stated that because Keith alleged breac h o f c o n t r act against A lf onso R ealty and sought both actual and punitive dam ages, “[ t]his m a tter does not f all within the chancery court’s jurisd i c t i o n o v er ‘all m atters in equity .’” ¶17. On April 20, 2010, A lf o nso Realty f

iled its m otion to dism iss f or f ailure to prosecute

or, in the alternative, f

or sum m ary judgm ent in t he c ircuit court. Alf onso R e alty claim ed that Keith “ha[ d] taken no steps t o prosecute his claim over the twenty -two m onths this case ha[ d] been p ending.” Alf

o nso Realty explained that Keith’s claim a gainst i t was f or dam ages only

. Alf onso Realty

also argued as f

o llows: [ A r]eview of the Listing Agreem ent and Contract f o r the Purchase of Sale of Real Estate evidenced no duty or contractual r e q u i r e m e n t t hat Alf

onso [ Realty ] take responsibility f

or the draf

t i n g o r r eview of the deed in this transaction. Even absent the Dec laration of A cceptance[ ,] w hich s pecif ically releases Alf onso [ Realty ], there would exist n o m aterial f act in dispute s u

pporting [ Keith’s] claim of

breach of

contract. ¶18. On October 27, 2010, the circuit c ourt granted Alf onso Realty ’ s m otion f

or sum m ary judgm ent. The circuit court then transf erred the rem aining c laim s back to the chancery court, explaining: “Now t hat sum m ary judgm e nt has b een g ranted with r egard to the breach of

contract and dam ages, [ the] [ c]ircuit [ c ]ourt does not have jurisdiction to hear the rem aining equity claim s.” ¶19. O n N o v e m

b er 30, 2 011, the chancellor, on her own m o tio n , e n t e r e d a n o r d e r

7dism issing the case without prejudice af ter f inding t hat the case had “been o n the docket f or twelve (12) term s or longer without any action being taken thereon.” In response, Keith f iled

a m otion to reinstate the case, which the chancellor granted on January 9, 2012. ¶20. The record ref

lects that over the next f o ur y ears, this ma t t e r w a s set f or trial and continued approxim ately six tim es. The chancellor held a bench trial on Septem ber 8, 2016.
At trial, Keith presented three w itnesses: him s e lf , Andy , and Joy ce W ilkerson, who had prepared an abstra ct of K eith and Chery l’s property

. At t he conclusion of the t rial, Keith

m ade an ore tenus m otion f or a def ault judgm ent against the Rogerses. 3 ¶21. The c hancellor denied Keith’s claim s f o r r elief on Novem

ber 17, 2016, and rendered

a judgm ent in f

avor of the Def

e ndants. The cha n c e l l o r f o und that Keith f

ailed to deraign title, f i l e a l i s p e n dens, and join all necessary parties as required by law, thus l eaving the chancellor without juris d i c t i o n t o ref orm title to the property o r enter a def ault j udgm ent against the Ro g e r s e s
. The c hancellor thus denied K eith’s request f or a def ault j udgm ent. The chancellor a lso held that Keith presented insuf f icient evidence to sustain his burden of proving that Andy

was negligent in preparing the warranty deed. ¶22. Keith now appeals, a rguing that the chancellor erred in f i nding that he f

ailed to prove that Andy com m itted legal m alpractice.

STANDARD OF REVIEW ¶23. This Court em

ploy s a lim ited standard w h en reviewing appeals f rom c hancery

court.

3 T h e r eco rd ref

lects th at th e t rial w as h eld o n S ep tem b er 8 , 2 0 1 6 , an d t h e c l e rk p rev io u sly e n tered an en try o f d ef au lt a g a i n s t t h e R o g erses n early eig h t y ears earlier, o n N o v e m b er 7 , 2 0 0 8

. 8Corp. Mgmt. Inc. v. Greene C ty

. , 23 So. 3d 454, 459 ( ¶11) (Miss. 2009). W e review a chancellor’s decision f

or an abuse of discretion, and we “ will not disturb the f actual f indings of a chancellor when supported by substantial evidence u nless the chancello r abused his discretion, was m anif

estly wrong [ or] clearly e r r o n e ous[ ,] or a pplied an erroneous legal standard.” Id . W e review questions of law de novo. Id

. DISCUSSION ¶24. K e i t h a r g u es that the chancellor erred in f i nding that h e f

ailed to present suf

f icien t evidence t o m eet h is burden of p roving that Andy com m itted legal m alpractice in preparing the warranty deed convey ing K eith’s property

. 4 As stated, we review a chancellor’s f indings of f act f o r an abuse of

discretion. Id

. ¶25. In her Novem

ber 17, 2 0 1 6 f

i n a l j u d g m ent, t he chancellor addressed Keith’s legalm alpractice claim

and f ound as f ollows: [ Kei t h ] a l l e ged that [ Andy ] prepared a deed which included an erroneous

4 In h is rep ly b rief

, K eith c laim s th at A n d y ’s b rief f a i l s t o co m

p ly w ith M ississip p i R u le o f A p p ellate P ro ced u re 2 8 (f ), w h ich p ro v id e s : “A ll b rief s s h all b e k ey ed b y ref

eren ce to p ag e n u m

b ers (1 ) to th e reco rd ex cerp ts f iled p u rsu an t to R u le 3 0 o f th ese R u les, an d (2 ) to t h e reco rd itself

.” K eith claim s th at A n d y f ailed to cite to th e reco rd o r reco rd ex cerp ts in h is ap p ellate b rief

. H o w ev er, th e su p rem e co u rt h as h eld as f o llo w s: T h e r u les an d reg u latio n s sp ecif y in g t h e r eq u irem en ts f

o r b rief s are lib erally co n stru ed , an d a tech n ical v io latio n t h ereo f w i ll n o t p rev en t a co n sid e r a tio n o f th e a p p eal. H o w ev er, th e ru les can n o t b e ig n o r ed o r en t irely d isreg ard ed , an d , alth o u g h a g o o d f

aith attem p t an d su b stan tial co m

p lian ce w i th t h e ru l es relativ e to b rief

in g is su f f icien t, su ch a g o o d f

aith attem

p t an d su b stan tial co m p lian ce is n ecessary to in s u re co n sid eratio n o f th e ap p eal[ .]
S

. F a rm B u rea u C

a s. In s
. C o
. v. N

a t ’l B u rea u o

f C a s. U n d erw riters , 2 5 4 M iss. 4 4 5 , 4 5 2 , 1 8 1 S o
. 2 d 1 5 4 , 1 5 6 (1 9 6 5 ). W e f in d th at A n d y ’s b rief is s u f f icien t to in su re co n sid eratio n o f h is arg u m en t o n ap p eal. 9description of real e state. [ Keith] alleged that t his act constituted n egligence,

and h e requested dam a ges. The elem ents of a neglige n c e action are well[ ] settled in Mississippi. Patterson v. Liberty Associates, L.P. , 9 10 So. 2 d 1014, 1019 (Miss. 2004 )

. I n a n e gligence action, the plaintif f m ust prove by a preponderance of the e vidence t hat there was a duty , breach, c ausation, and dam ages. Thrash v. D eutsch, Kerigan & Stiles, LLP , 1 8 3 So. 3d 838 (Miss. 2016) (citing E n t rican v. Ming , 962 S o. 2d 28, 32 (Miss. 2 007)). In m atters tried in chancery court, the “chancellor has the sole responsibility to determ ine the credibility of witnesses and evidence.” Hall v. Hall , 134 So. 3d 822, 8 26 (Miss. C t. A pp. 2014) [ (]citing Chamblee v. Chamblee , 6 3 7 So. 2d 850, 8 60 (Miss. 1994)[ )]. In this m atter, the [ c ]ourt, having c o nsidered the testimo ny of the p arties, the evidence presented, a nd the a pplicable law, f

inds that there was insuf f i cient evidence presented by [ Keith] t o sustain [ his] b urden o f proof

. As such, the [ c]ourt f

inds the negligence claim is DENIED. ¶26. T h e M i s s i s s i p p i S u p r e me C o u r t has distinguished between two ty pes of lega l

ma l p r a c tice claim s: “[ (1) those] based on negligence ( som etim es called a b reach of th e standard of care) and [ (2)] those based o n b reach of f i duciary duty (som etim e s called a breach o f the standard of c ondu c t )

. ” C r i s t v. L oyacono , 65 So. 3d 837, 842 (¶15) (Miss. 2011). On appeal, Keit h a l l e g e s t h at Andy w as both negligent a nd breached his f iduciary duty

. Since the analy sis is dif f erent f or each claim , we will address them separately

. In so doing, we f

ind, as set f

orth in this opinion, that Keith i s barred f rom raising his claim of legal

ma l p r a c t i c e based on a n a llegation of breach o f f i duciary duty

. T heref

o re, only Keith’ s negligence-based legal-m alpractice claim is properly

bef ore us in this appeal.
I. Fiduciary Duty ¶27. To prove l egal m a lpractice based on an al l e g a t i o n of breach of f iduciary duty , the plaintif f m ust establish t he f

ollowing: “(1) the existence of a n attorney -client relationship; (2) the a cts c o n s t ituting a v iolation of the attorney ’s f iduciary duty ; (3) that the breach proxim ately caused the injury ; and (4) the f a ct and extent o f the injury .” I d

. at 8 42-43 (¶15).

1 0¶28. The suprem e court has held that “[ i]f a c om plaint is inten d e d t o a l l e ge a breach of
f iduciary d uty , it would be necessary to state with particularity the f acts which purportedly created the duty that was breached, so that the court c ould determ ine as a m atter of law whether there was such a duty .” W ilbourn v. Stennett, W

ilkinson & W

ard , 687 So. 2d 1205,
1216 (Miss. 1996). The suprem e court clarif ied that “m e r el y ma k [ i ng] t he conclusory

statem ent that a f

iduciary duty was violated” in the com plaint “is not suf

f icient.” Id. ¶29. Keith’s com

plaint asserts a claim of legal m alpractice based only on an allegation of negligence, and not a breach of f iduciary duty

. In his c omp l a int, Keith alleged t hat “[ t]he actions of [ Andy ] in preparing the deed which i n c l u ded an erroneous description of real

estate constitutes negligence. As a result of said negligence, [ Keith] has b een dam aged and

. . . is entitled to receive dam ages he has suf f ered.” A review of the c h ancellor’s Novem ber 17, 2016 f

inal judgm e nt a lso r ef

lects that Keith’s claim of legal m alpractice based on negligence was the only

m alpractice claim

bef ore her. Other t han on appeal, the only t im e Keith m ade an a rgum ent about Andy ’s alleged breach of f iduciary duty was during closing
argum ents at trial. During closing argum ents, Keith’s counsel a s s e r t e d that as the closing attorney , Andy was acting in the c apacity of a dual agent f o r Keith and the Rogerses. In his proposed f

indings of f

act, Andy also adm itted t hat he had an attorney -client r elationship with Keith and the Rogerses. Keith’s counsel subm itted that as a result, Andy owed a f iduciary duty t o both Keith and the Rogerses. ¶30. Af ter reviewing the record, we f ind that Keith f

ailed to “state with particularity ” the
f acts creating t h e d u t y t hat Andy allegedly b reached. F urtherm ore, the suprem e court has

1 1held that an ap p ellate c ourt “will not consider issues raised f or the f irst tim e on appeal.” Anderson v. LaVere , 136 So. 3d 404, 410 (¶6) (Miss. 2014). Since Keith f ailed to allege a breach of f

iduciary duty in h is com

plaint or raise t he argum ent i n the chancery court, Keith is barred f

rom raising this argum ent f

or the f irst tim e on appeal.
II. Negligence ¶31. T o p r o ve legal m alpractice based on an allegation of n egligence, o r br e a c h o f t h e

s t a ndard of care, the p laintif f m ust establish the f

ollowing by a preponderance of th e evidence: “(1) an attorney -client relationship; (2) the attorney ’s negligence in handling the client’s af

f a irs; and (3) proxim ate cause of the injury .” Great Am. E & S Ins. C o
. v. Quintairos, Prieto, W

ood & Boyer, P.A. , 100 So. 3d 420, 424 (¶17) (Miss. 2012) ( c i ting
Pierce v. C

ook , 992 So. 2d 612, 617 (¶11) (Miss. 2008)). W e will discuss these f a c tors in length below.

a. Attorney
- C lient Relationship ¶32. Regarding the f

irst f actor, t he existence of a n a ttorney -client relationship, the record ref lects that in his appellate brief and his proposed f

indings o f f

act a nd conclusions of law subm itted t o the chancellor, Andy a dm i tted to the existence of an attorney -client relationship:

“ D e f e n d a nt Andy Alf

onso h ad an attorney -client relationship with t he parties to the transaction.” ¶33. W e also r ecognize that in Great American , 100 So. 3d at 424-25 ( ¶21) (citing Century
21 Deep South Properties Ltd. v. Corson , 612 So. 2d 359, 374 (Miss. 1992) ) , the suprem e
court provided that it has “ abolish e d t h e absolute r equirem e nt of a n attorney -client

1 2relationship in title-work cases,” e xplaining that an attorney ’s liability “m ay be extended to

f oreseeable third p a rties who d etrim entally rely on the attorney ’s negligent conduct.” The
suprem e court in Great American also “recognized that l awy ers who perf orm t itle work are f ully aware that their work will be relied upon b y subsequent p urchase r s a n d lienors of property .” Id

. at 4 25 (¶22). The suprem e court explained that “[ i]t is com m on knowledge that t he client of an attorney p erf orm ing a subsequent title update reli e s o n the p rior title opinion and whether that opinion revealed any def iciencies.” I

d

. A ccordingly , “ an attorney engaged to perf

orm title w ork is expected by the client to protect not only the client, but those who later rely

on the attorney ’ s opinion.” Id

. ¶34. As stated, Andy adm i tted, a nd the record r ef lects, the existence o f an attorney -client relationship between Andy and K eith. We next turn t o the second f actor necessary f

or proving legal m alpractice based on an allegation of negligence: w hether Keith established suf f i cient evidence at trial to show that Andy was negligent in preparing the deed herein.
b. Attorney ’ s Negligence ¶35. In Pierce , the suprem e court addressed the f actor requiring a showing of the attorney ’s negligence and explained that “a l awy er owes his client the duty to exercise the knowledge, skill, and a

bility ordinarily possessed and exercised by the m em bers of the l egal prof

ession sim ilarly situated. Failure to do so constitutes negligent conduct on the part of the lawy er.”
Pierce , 992 So. 2d at 617 (¶11). ¶36. T h e s u p r e me c o u r t h a s h e l d t h a t “ a n a t torney m ust act with t h e g r e a t e s t circum spection in the representation of m ultiple clients where the[ re] exists a possibility that

1 3their interest m ay c onf lict o r be at cross p urposes.” Lane v. O ustalet , 8 73 So. 2d 92, 96 (¶20) (Miss. 2004). 5 W hen a real-estate attorney se r v e s as a dual agent and “represent[ s] both parties to a transaction,

. . . he m ust proceed with a heightened sense of duty and conduct to

assure that he serves both m a sters’ interests f ully .” Id

. at 9 7 (¶20 )

. F u r t h e r m o re, “[ a]n attorney perf

orm ing title work w ill be liable to reasonably f oreseeable persons who, f or a
proper business purpose, detrime n t a l ly rely on the attorney ’s title work, suf f ering loss proxim ately

caused by his negligence.” Corson , 612 So. 2d at 374. ¶37. Regarding Keith’s b urden of proof herein, we recognize that t he s u prem e court has established t hat generally , “expert testim ony is necessary to establish the b reach of a duty of

care in a claim of l egal m alpractice.” Byrd v. Bowie , 933 S o. 2d 8 99, 904 ( ¶15) ( Miss. 2006). However, in Pierce , 9 92 So. 2d at 617 ( ¶ 15), the suprem e court “ recognized that experts are not required in all legal-m alpractice cases.” The Pierce court explained that attorney s involved in m alpractice action s mu s t alway s rem em ber there is a pragm atic dif

f erence between the trial of o ther prof essional m a lpractice cases and a legal[ -]m alpractice case. In the f orm er class, t he lawy ers a nd judges are lay m en. In prof

e ssional[ -]m alpractice c ases, excepting extrem e cases, we rely upon experts f

or guidance. The attorney who f i nds him s elf the def

endant in a legal[ -]m alpractice case, however, h as a judge and the trial a t torney s who are

5 I n L a n e , th e su p rem e co u rt c ited to H a r t fo rd A ccid

en t & I n d em n i ty C o m

p a n y v. F o ster , 5 2 8 S o . 2 d 2 5 5 , 2 8 5 (M iss. 1 9 8 8 ), an d stated as f o llo w s: In an actio n i n v o lv in g a leg al[ -] m alp ractice claim w h ere t h e a t t o r n ey h ad rep resen ted b o th t h e in s u rer an d th e i n su red i n a p erso n al in j u r y actio n arisin g f ro m an a u to m o b ile accid e n t, th is C o u rt h e ld th at leg al m alp ractice m ay b e a v io latio n o f th e s tan d ard o f care o f ex e rcisin g th e k n o w led g e, sk ill, an d ab ility o rd in ari l y p o s s essed a n d ex ercised b y m em b ers o f th e leg al p ro f

essio n sim ilarly situ ated , o r th e b reach o f a f id u ciary d u ty

. L a n e , 8 7 3 S o . 2 d at 9 8 (¶2 7 ). 1 4already experts.

Id

. a t 617-18 (¶16) ( quoting Hickox ex rel. H ickox v. Holleman , 502 S o. 2d 626, 636 (Miss. 1987) (superseded by r

ule on other g r ounds)). 6 Keith did n ot present expert testim ony at trial, nor did the f

acts of this case require him to. ¶38. Keith subm its that at t rial, h e provided evidence showing that prior to the loan closing and preparation of t he warranty deed, Andy negligently f aile d t o com m

unicate with Keith regarding the property Keith intended to convey
. Keith a l so asserts that A ndy was negligent
in f ailing to review any s urvey s of the property prior to draf ting the deed, and as a result, Andy draf ted a warranty

deed with an incorrect legal description. ¶39. Keith also argues that as a lay person, he l a c k e d t h e k n o w ledge at t he tim e of the closing to understand the legal d escription provided by Andy and that he relied on Andy , as his attorney , t o provide the correct legal description. In support o f h i s a r g um ent, Keith provides that he later l earned, and the record show s, that t he legal description provided by Andy in the w a r r anty deed f or 6331 Jim Ram sey Road also included b oth the f ive acres located a t 6327 Jim Ram s ey Road and the m iddle parcel (6325 Jim Ram sey Road) that Keith did not e ven own at the tim e of t he closing because Keith had already deeded this 1.23 acres of land to the Storm s. ¶40. Andy argues, however, that at the closing, he presented the warranty deed to Keith and

6 In H icko x , th e su p rem e co u rt f o u n d th e f

ailu re o f an atto rn ey to f

ile su it p rio r to th e ex p iratio n o f

th e statu te o f

lim itatio n s w as n eg lig en c e as a m atter o f th e l aw , an d h eld th at th e clien t b rin g in g th e n eg lig en ce su it w a s e n titled to a d i rected v erd ict o n liab ility w ith o u t p resen tin g e x p ert test i mo n y o n t h e b reach o f th e stan d ard o f care. H icko x , 5 0 2 S o
. 2 d at 6 3 4

. 1 5the Rogerses, a long with a m ap display ing a p icture o f the property to be convey ed, less the

parcel p reviously convey ed to t he Storm s, and t h e l e g a l d escription of the property to be
convey ed. A ndy a lso claim s that at the closing, he discussed the property ’s boundary lines and acreage involved, and none of the parties n o r Shirley objected to the property being
convey ed at the closing. Andy m a intains t hat his a c tions in preparing the deed and presenting the deed to Keith to execute f ailed to constitute negligence. ¶41. However, as previously acknowledged, A ndy adm itted that he possessed an attorney

client relationship with Keith. Our review of the record ref l ects th a t A n d y w a s hired to
prepare the deed and legal property description f or the parcel of land to be sold at 6331 Jim
R a m sey Road. 7 During Keith’s cross-exam ination at trial, Keith testif ied that he had n o personal com m

unication with Andy prior to the closing in July 2008. 8 Andy also adm itted

7 T h e reco rd ref

lects th at th e p u rch ase ag r eem e n t f o r th e h o u se an d 2 .3 acres sh o w s th at K eith w as ch arg ed f

o r “d eed p rep aratio n .” H o w ev er, th e U n ited S tates D ep artm en t o f H o u s in g an d U rb an D ev e lo p m en t S ettlem en t S t atem e n t in th e reco rd r ef lects th at alth o u g h K e ith d id p ay

A n d y $ 3 5 0 in atto rn ey ’s f

ees, K eith d id n o t p ay

f o r a title search

. 8 T h e tran scrip t ref

lects th e f o l lo w in g testim o n y

b y K eith : Q

. O k a y . I’m ask in g y o u ab o u t [ A n d y ’ s ] o f f ice. B e f o r e y o u sig n ed th at d eed tran sf

errin g th e p ro p erty to

— th e en t ire 8

. 9 acres to th e R o g ers[ es] , d id y o u ev er h av e a n y ty p e o f co m m

u n icatio n w i th [ A n d y ] o r so m e b o d y f

ro m h i s o f

f ice, n o t f r o m A l f o n s o R ealty , ab o u t w h at p ro p erty y o u w an ted to co n v ey ?
A

. D id y o u say

b ef o re I sig n ed th e d eed ? Q

. R ig h t. A

. N o
. B ef

o re I w en t in an d sat an d d id th e clo sin g ? Q

. C o rrect. 1 6at trial that he never com m u nicated with Keith prior to preparing the warranty d eed and prior to the July

2008 closing. ¶42. The record shows that the contract f or sale was adm itted into evidence at trial. The

c ontract f or sale identif

ied the house located at 6331 Jim Ram sey Road, as well as the 2.3

acres of land, as the property being sold by Keith and C hery l. However, the legal description of the property p rovided by Andy in the warranty deed also included the properties located

at both 6325 Jim Ram sey Road and 6327 Jim Ram sey Ro a d

. The warranty deed at issue herein states, in pertinent part, as f ollows: Keith A. O’Brien and Chery l R. O’Brien do hereby sell, convey

and warrant unto Michael R ogers and Mary Ann Rogers, as joint tenants with f ull right of survivorship and not as tenants in common, the land and property w hich is

A

. D id I h av e an y

co n v ersatio n w ith an y

b o d y in [ A n d y ’s] o f

f ice? Q

. C o rrect. A

. N o
. Q

. S o , y o u w ere, f

ro m m y u n d erstan d in g , rely in g o n [ S h i rley ] to co n v ey to [ A n d y ] w h at p ro p erty

y o u w a n t ed to sell?
A

. A b s o lu tely

. Q

. O k a y . A

. I’d n e v er— I d id n ’t really k n o w w h o th ey

w ere at th a t p o i n t

. Q

. A t th at p o in t, w h en y o u w ere p r esen ted w ith a [ w ] arran ty [ d ] e ed , d id an y b o d y ex p lain to y o u . . . w h at y o u w e re co n v ey in g ?
A

. N o
. A g ain , I sat in th e re w ith A n d y an d h i s leg al p eo p le o r p araleg al an d S h i rley

.

1 7situated in the County of Jackson, State of Mississippi, d escribed as f ollows, to wit: See Exhibit “A” Said parcel of property carries t he County Parcel Num ber 02308100.017. Said parcel of p roperty is the sam e recorded in Deed B ook 1132, Page 869 Land Deed Records of Jackson County , Mississippi. ¶43. T h e am ount of acreage sold does not appear on the f a c e o f t h e w a r r a n t y d e e d

. However, the warranty deed r ef erences Exhibit A, w hich provides t h e l egal description of the land. The legal d e scription in Exhibit A reads, in pertinent p art, as f ollows: “Said parcel contains 8.9 acres , m ore or less and i n t e n d ing t o be that sam e land convey ed to [ the O’Briens] by deed

. . . a nd recorded in

. . . the Land Deed Records of J ackson County , Mississippi.” (Em

phasis added). As stated, this legal description of the property prepared by Andy included t wo other a d d resses and related p arcels bey ond the 2.3 acres l ocated at 6331 Jim Ram sey Road being sold by

Keith and Chery l at the closing. ¶44. As previously acknowledged, Keith and Chery l purchased the entire 8 .9 acres in 1998 and subsequently had the p roper t y survey ed and divided into three parcels. Keith then established s treet addresses f o r each of t he parcels. Our r eview o f t h e r e c o r d ref lects that Andy f ailed to conduct a p r oper title search of Keith and Chery l’s property prior to preparing the warranty deed. A ndy adm i tted at trial that he did perf orm a title search, but that he f ailed

to d iscover that Keith had already deeded the 1 .23-acre m iddle parcel located at 6 3 25 Jim
Ram sey Road to the Storm s prior to entering the contract f or sale with the Rogerses. Andy also testif ied t h at he should have i ncluded language in the deed that excepted this 1.23-acre

1 8parcel out of the legal description set f orth in the deed, but that he f ailed to do so: Q. W hen y ou did y our title search, did it not pop up the f act that [ Keith], prior to the loan closing, didn’t actually own the entire 8.9 acres?
A. I’d have to go back, but there should have probably b e e n a l ess and—well, not p robably

. There should have been a less and except f or that one point som ething acres, the S torm property in the m iddle. That should have appeared on the deed. Q. But y ou didn’t catch that and put that on the deed?
A. I’m

not sure if

I did or didn’t. Q. You’ve . . . still got the [ w]arranty [ d]eed?
A. I do. Yea[ h ]. It’s not in the deed. The less and except is not there. ¶45. Af ter our review o f the record, we f ind that Andy w a s n e g l i g e n t i n d r af ting the warranty deed, which contained an erroneous legal description of the property

to be sold.

c. Prox im ate Cause ¶46. Finally , K e i t h mu s t s h o w t hat Andy ’s negligence in p reparing the w arranty deed proxim ately caused t he injuries f or which Kei t h s e e k s dam ages. The suprem e court has explained that “a p laintif

f in a n egligence-based m alpractice action m ust e stablish proxim ate

cause by the so-called t rial-within-a-trial test. That is to say , the client m ust show that, but
f or his attorney ’s negligence, he would have been successf ul in the prosecution or def ense of the underly ing action.” C rist , 65 So. 3d at 842 (¶14) (em phasis and interna l q u o t a tion

m arks om itted); see also Thompson v. E rving’s Hatcheries Inc ., 186 So. 2d 7 56, 7 59 (Miss. 1966) (In legal-m alpractice a ctions, “dam ages c laim ed are usually the value of the claim lost or judgm ent suf

f ered as an alleged result of t he attorney ’s negligence.”).

1 9¶47. In his appellate brief , Keith adm its th a t “ [ g ] i v e n t h e n a t u r e o f t h e u n d erly ing transaction, [ he] cannot s how that he w ould have w on t he case within the case.” However, Keith claim s t h a t i f Andy had correctly described the property in the w arranty deed, Keith would still have roughly

f i ve acres of

land on which to live. ¶48. In support of his claim f or dam ages, Keith testif

ied that he had an appraisal perf orm ed of the f ive acres that he i ntended to keep. The c hancellor adm itted a copy of the appraisal into evidence. Keith testif ied that the appraised value of the f ive acres was $35,000. Keith also testif ied that regarding d a m ages, he “really w anted [ h is] p roperty b ack,” but he would also “take either” a corrected d eed or the am ount of m o ney the property is worth. Keith also testif i ed as to the attorney ’ s f

ees that he incurred in attem pting to resolve this m atter. 9 ¶49. The record ref

l ects t hat t he Rogerses obt a i n e d a mo r t g a g e o n t he property that attached at the tim e of t he closing. The record also ref l ects that in 2006, o nce the Rogerses learned that they owned 8.9 acres, rather than 2.3, they ob t a i n e d a second m ortgage

encum bering the entire 8.9 acres. ¶50. Andy , h o w e v e r , a s s e r t s t h a t e v e n i f t he chancellor had f ound t hat Andy ’ s actions constituted legal m alpractice, Keith still could not recover title t o the l and d ue to his f ailure

to deraign title, f

ile a lis pendens, and join all necessary parties. However, as stated, return of the property to Keith is not a viable rem edy since the R ogerses encum b ered t he property
upon closing and then obtained a second m ortga g e i n 2 0 0 6

. In her f inal judgm ent, the chancellor held that since Keith f ailed to deraign t itle, f

ailed t o f ile a lis pendens, and f

ailed

9 K eith testif

ied th at h e p aid h is f

irst a tto rn ey $ 4 ,2 0 0 f

o r h i s serv ices in r eso lv in g th e p resen t m atter. K e ith f

u r th er t estif ied th at h e h as “a lo t o f t im e an d m o n ey tied u p in to th is.” 2 0to j oin a ll necessary parties, the chancellor lacked jurisdiction t o r ef orm t itle to t he property

or enter a d e f

a u l t judgm ent a gainst the Rogerses. However, Keith f ailed to appeal the chancellor’s de n i a l o f Keith’s r equest to conf irm and quiet title. The i ssue on appeal is whether Keith m et his b urden of proving by a prepondera n c e o f t h e e vidence t hat Andy

com m itted legal m alpractice by n egligently draf ting a w arranty deed containing an incorrect legal description of

the property

to be sold. ¶51. U p o n o u r r e v i e w , w e f ind that the record contains substantial credible evi d e n c e showing that Andy com m itted legal m alpractice based on negligence. The record contains substantial credible evidence, including Andy ’s adm ission, showing that an attorney -client relationship existed between Andy and Keith; that A ndy was negligent i n preparing the deed containing a n e rroneous legal description of the property to b e sold; and that Andy ’s negligence proxim a tely c aused Keith to i ncur dam ages. As d iscussed, A ndy acknowledged that since Keith did not own the 1.23-acre m iddle parcel (6325 Jim Ram sey Road) at the t im e of the closing, Andy should h ave included “less and except” language in the deed. However, Andy adm itted that he f ailed to include this language in the deed. W hi l e d r a f t i n g the warranty deed and conducting a proper title search, Andy also should have discovered that the f ive-acre back parcel (6327 Jim Ram sey Road) was not connected to t h e property intended to be sold (6331 J im Ram sey Road) as a result of the prior c o nvey ance of the 1.23-

acre m iddle parcel. However, Andy f ailed to m ake this discovery

. The chancellor’s f inding that Keith f

ailed to m eet his burden o f proof is not supported by the evidence in the record, and we t heref

ore reverse the c hancellor’s judgm e nt and rem and this case to the chancellor

2 1f

or a d e term ination of dam a ges. See Gibson v. W illiams, W i lliams & M

ontgomery P.A. , 186
So. 3d 836, 850-51 (¶¶45-49) (Miss. 2016) (reversing and rem anding the c hancellor’s grant of s um m ary judg m e n t a f

ter f inding the appellant established s uf f icient evidence to raise a genuine issue of m aterial f act a s t o t h e issue of dam ages); Corson , 6 12 So. 2d at 369 (reversing and rem anding the chancellor’s judgm ent regarding the issue of dam ages). ¶52. REVERSED AND REMANDED

. LEE, C.J., IRVING, P.J., GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY GRI F F I S , P . J., AND TINDELL, J.; BARNES, J., JOINS IN PART. FAIR, J., NOT PARTICIPATING. WILSON, J., DISSENTING: ¶53. I respectf

ully dissent. Based on the evidence presented at trial, the chancellor could have f ound that Keith O ’Brien’s f ailure t o read t he d eed he signed was the s o l e proxim ate

cause of his a lleged dam a ges. Theref ore, the c hancellor’s f

i nd i n g t h a t O ’Brien f

ailed to “sustain [ his] burden of

proof ” m ust be af f i rm ed. ¶54. Following a b e nch trial, the chancellor entered judgm ent in f avor of Andy Alf

onso on O’Brien’s claim

f or legal m alpractice, ruling as f ollows: [ O’Brien] alleged that [ Alf onso] prepared a deed which included an erroneous descriptio n o f r eal estate. [ O’Brien] alleged that this act constituted negligence, and he requested dam ages. The elem e n ts of a negligence action are well-settled in Mississippi. In a negligence action, the plaintif f m ust prove by a p r e p onderance of the evidence that there was a duty , breach, causation, and dam ages. In m atters tried in chancery court, t h e c hancellor has the sole responsibility to determ ine the credibility of witnesses and evidence. In this m atter, the Court, having considered the testim ony of the p arties, the evidence presented, and t he a

pplicable law, f

i nds that the r e was i nsuf

f icient evidence presented b y [ O’Brien] to sustain [ his] burden o f p r o o f

. A s such, the Court f inds the negligence claim is DENIED.

2 2(Citations, quotation m arks om itted).

¶55. The chancellor did not specif y which elem ent(s) o f O’Brien’s negligence claim that he f ailed to prove. B ut n o party r e q u e s t e d s p ecif ic f indings of f

act, and this was not a

com plex case, so t he c hancellor’s generalized f inding of f

act was suf

f icient. S ee M.R.C.P. 52; Carpenter v. Berry , 55 So. 3d 1158, 1161-62 (¶¶13-15) ( Miss. 2011). “Generally , when there are no specif

ic f indings of f

act, this C ourt w ill assum e that the trial court m ade determ inations of

f act suf f icient to support its judgm e n t.” Century 21 Deep S. Props. Ltd.

v. Corson , 612 S o. 2d 359, 367 (Miss. 1 992). “W here there are no specif ic f indings of f

act provided by the chancellor, this Court m ust look t o the e v idence a nd see what state of f acts will justif y t he decree.” Id. ; accord Par Indus. Inc. v
. Target Container Co. , 708 So. 2d 44, 47 (¶4) (Miss. 1998). ¶56. Alf

onso testif

ied that no one ever told him that the deed should convey less than the entire tract of land previously owned by O’Brien. Alf onso t estif

ied that he obtained the legal description of the p roperty f rom the l and r e c ords, i.e., f rom the prior deed c onvey ing the property to O’Brien. In f act, Alf onso testif

ied that he r em ained unsure what part of the property O’Brien intended to convey
. 10 However, the evidence did tend to show (1) that O’Brien intended to c onvey o n ly a 2.3-acre lot, not the entire 8.9-acre t ract described in the deed that Alf

onso prepared; and ( 2) that a p rope r t itle search and exam ination would have identif ied this i ssue because a previously recorded deed convey ed 1 .23 of the 8.9 acres f rom

10 O ’B rien t estif

ied th at h e in ten d ed to co n v ey o n ly a 2 .3 -acre lo t, n o t th e en tire tract, b u t n o n e o f th e o th er p arties to th e d eed

— O ’B rien ’s e x - w i f

e an d M ich ael an d M ary A n n R o g ers— o r th e real estate ag en t, Willard , testif ied at trial. 2 3O’Brien to his daughter and son-in-law. Alf o nso claim ed that he perf orm ed a title search, but the record does n o t include a title report or any other c ontem poraneous records or notes of Alf o nso’s, a nd Alf

onso could not explain why he prepared a deed that f ailed to account f or the 1.23 acres that O’Brien had already convey ed. A proper title s earch w ould have identif ied this discrepancy and, at a m inim um , prom pted f urther inquiry by A lf

onso. Based

on this e vidence, O’Brien p roved negligence. In addition, Alf onso adm i ts an attorney -client relationship with O’Brien. ¶57. Nonetheless, I wo u l d a f f i r m the judgm ent of the c hancery court because the record contains f a cts f rom w hich t he chancellor could h ave f o und that Alf

onso’s negligence was not

a p r o x i ma te cause of any dam ages. Indeed, this was the i ssue that Alf onso e m phasized i n his closing statem ent i n the chancery court. O’Brien and his ex-wif e signed a one-page warranty deed that clearly stated that the property being c onvey ed was d escri bed in an attached “Exhibit ‘A.’” That one-page exhibit contained only a b rief l egal description of the lan d c o n v e y e d, w hich concluded as f ollows: “Said parcel contains 8 .9 acres, m ore or less and intending to be at sam e land convey ed to Grantors by d eed d ated Septem ber 10, 1993 and recorded in

. . . the Land Deed Records of J ackson County , Mississippi.” I f O’Brien had read the warranty deed that he signed, he would h ave s een that it did not ref lect his alleged intent. Theref ore, the chancellor could have f ound that O’Brien’s f

ailure to read the deed was the sole proxim ate cause of

any dam ages. ¶58. Our Sup r e me C o u r t h as m ade the s am e basic point in the context o f claim s against insurance agents alleging negligent f ailure t o procure coverage. The C ourt has held that an

2 4agent has a duty t o exercise reasonable diligence and skill to obtain coverage requested by

the insured. See Mladineo v. Schmidt , 52 So. 3d 1 154, 1164 (¶35) (Miss. 2010); R obichaux

v. Nationwide Mut. F

i re I ns. , 81 So. 3d 1030, 1 040 (¶30) (Miss. 2011). However, the insured also has a “duty to read [ his] policy .” M ladineo , 52 So. 3d at 1164 (¶38). If the term s of the policy presented to the insured “plainly d id not cover the things that the [ insured] assum ed [ the policy ] would cover,” then t he insured’s own f ailure to read his policy

— not the agent’s breach of duty

—is “the proxim ate cause of [ the insured’ s ] d a ma g e .” Id. ( holding that a policy clearly excluded c overage f or water dam age; theref

ore, the insureds’ f

ailure to read their policy

—not the agent’s f

ailure to procure the coverage—“was the proxim ate cause of their dam age”); accord Bell v. C ertain Underwriters at Lloyd’s London , 200 So. 3d 447, 452-
5 3 ( ¶ 1 9 ) (Miss. Ct. App. 2016) (f inding that a policy clearly did not insure a barn o n t h e property ; theref

ore, the insured’s f

ailure to r ead her policy

—not the agent’s f

ailure to procure the coverage—was the proxim ate cause of her dam ages). ¶59. On the evidence in this case, the chancellor c ould have reached t he sam e conclusion regarding O’Brien’s f

ailure to read his warranty deed. Had O’Brien read his d eed, he would have seen that it purported to convey 8.9 a cres, t he entire tract he originally purchased y ears earlier. Had O’Brien read the deed, t he legal description could have been corrected bef ore he convey ed the property to Michael and Mary Ann Rogers, and h e would not have suf f ered
any dam ages. Because the legal description attached to the d eed clearly purports to convey 8.9 acres, the chancellor c ould have f ound that O’Brien’s own f ailure to read the deed—not
Alf onso’s negligence—was the proxim ate cause of any dam ages.

2 5¶60. Courts in other states have a pplied this sam e basic principle in legal m alpractice cases. For e xam ple, in Berman v. Rubin , 227 S.E.2d 802 (Ga. Ct. App. 1976), an attorney draf ted

a property settlem ent agreem ent f or a client in a divorce case, and the client later alleged that the agreem ent f

ailed to ref

lect the parties’ intent regarding alim ony and c h ild support, which resulted in the c lient being o rdered to pay m ore than the parties had intended. Id. at 804. The Georgia Court of Appeals recognized t hat a lthough an a t torne y “ i s not an i nsurer of the docum ents he draf

ts, the attorney m ay breach his duty towards his c l i e n t w h e n, af ter undertaking to accom

plish a specif

ic result,

. . . he the n f

a i l s
. . . to ef

f ectuate the intent of the p a r t i e s.” Id. at 805 (f ootnote om i tted). The court then held that although the issue of negligence presented a jury question, the attorney was e n titled to sum m ary judgm ent because “[ t]he record af

f i rm atively show[ ed] that [ his] actions were not t he c a use of the alleged injury to [ h is client].” Id. at 806. T he c ourt reasoned that the property settlem ent agreem ent was “not am b iguous, nor [ was] it technical or laced with ‘legal jargon.’” Id. The client initialed and signed each page and reviewed changes to a p rior draf t. Id. T he court em

phasized that “[ t]here are f

ew rules of law m ore f

undam e ntal than that which requires a party t o read what he signs and to be bound thereby , ” and that “[ t]his rule has particular f orce when the party is w ell educated and laboring u n d e r n o disabilities.” Id. Because t he alleged e rror would have been apparent to the client had h e read the a greem ent, t he client could not “show that [ his attorney ’s] actions, and not his own, were the cause of his a lleged injury

. ” Id. ; see also id. at 807 (holding that the client’s “ability to read and com prehend, together with his f ailure

to do so, constitute[ d] [ an] intervening cause,” which broke the “chain of causation leading

2 6f

rom [ the attorney ] to [ the client]”). ¶61. The B e r m a n c o u r t e mp h a s i z e d t h at its holding w as not unlim ited and did not im m unize attorney s f

rom liability f or “negligent draf

t sm anship”: [ W ]here the docum ent requires substantive or procedural knowledge, is am biguous, or is of uncertain application, the attorney m ay well be liable f

or negligence, notwithstanding the f act that his client read w hat was draf t ed. This holding is sim

ply that when the d ocum ent’s m eaning is p l ain, obvious, and requires n o legal explanation, and the client is well educated, laboring under no disability , and has had t he opportunity to read what he s igned, no action f or prof essional m alpractice based o n counsel’s alleged m i srepresentation of the docum ent will lie. Id. a t 8 06. Thus, while Berman held, as a m atter of law, that the attorney ’s negligence was not the proxim ate cause in t hat case , i n m any other cases the issue will be one f or the factf inder to decide at trial. See Paul v. Smith, Gambrell & Russell , 642 S .E.2d 217, 223 (Ga.
C t

. A pp. 2007) (distinguishing Berman and holding that a “jury m ust decide” issue s o f causation related to the clients’ “ability to read and com

prehend the docum ents”). 11 ¶62. For sim ilar reasons, the chancellor i n this case c ould have f ound that O’Brien’s own f ailure to read the warranty d eed was the sole proxim ate cause of any d am ages. O’Brien was
not under any disability , and nothing prevented him f rom reading the deed. The deed plainly

11 A cco rd R ice v
. P o

p p e , 8 8 1 N .W.2 d 1 6 2 , 1 7 0 -7 2 (N eb

. 2 0 1 6 ) ( “A lin e o f cases d ecid ed b y th e G eo r g ia C o u r t o f A p p eals,” startin g w ith B erm a n , “illu strates w h en a clien t’s f ailu re to read o r u n d erstan d a d o cu m en t is t h e p r o x i mate cau se o f

. . . h e r in j u ry
. . . . A s th ese cases sh o w , w h e th er a clien t’s f ailu re to r ead o r u n d erstan d th e d isp u ted d o cu m en t is a s u p ersed in g cau se d ep en d s o n th e f a cts.”); S u tto n v. M ytich , 5 5 5 N .E

. 2 d 9 3 , 9 8 (Ill. A p p
. C t

. 1 9 9 0 ) (d iscu ssin g B erm a n an d su b seq u en t cases an d h o ld in g t h a t “[ w ] h eth er th e f ailu re o f a clien t to read a p articu lar d o cu m en t n ecessarily d ef eats a m a lp ractice actio n is d ep en d en t u p o n th e p articu lar circu m stan ces”); see a lso S im o n v. N a d ler, N a d ler & B u r

d m a n C o
. , 1 4 2 F

. A p p ’ x 8 9 4 , 8 9 5 -9 6 (6 th C ir. 2 0 0 5 ) (“[ T ] h e p r o x im ate cau se o f S i m o n ’s d am ag es w as h er o w n f ailu re to read th e a n ten u p tial ag reem en t b ef o re sig n i n g it

. . . . [ I] f S im o n h ad read th e ag reem en t b ef

o re sig n in g , sh e w o u ld h av e d isco v ered th e o f f e n d in g p ro v i sio n s . . . .”). 2 7purported to convey the entire 8.9-acre tract. If O’Brien had read the deed, he would have seen that and could have had it corrected bef ore he suf f ered any dam age. ¶63. As the Georgia Court of Appeals held in B erman , supra , a client’s f ailure to read and understand a docum ent will not alway s save the lawy er f rom liability f

o r n egligent draf

ting.
If the legal im

port of an agreem ent’s term s is n ot clear to a lay p erson, then the client’s f

ailure

to read a nd understand m ay not be the proxim ate cause of his own dam age. I n som e cases, this will be an i ssue f

or t he trier o f f

act. See Paul , 6 4 2 S .E.2d at 223. On the f acts of this

case, the chancellor, a s the trier of f act, could have f

ound that O’Brien’s f

ailure t o read was the proxim ate cause o f h is own dam age. There f o r e , t h e chancellor did not m anif estly or clearly err in f

inding that O’Brien f

ailed to m eet his bur d e n o f p r oof , a n d this Court m

ust af f irm the chancellor’s judgm ent. I respectf ully dissent. GRIFFIS, P.J., A N D T I NDELL, J., JOIN THIS OPINION. BARNES, J., JOINS THIS OPINION IN PART.

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