Calloway (Buddy) Smith v. Frank (Kim) Breese III

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2024-CA-01441-COA

CALLOWAY (BUDDY) SMITH APPELLANT v. FRANK (KIM) BREESE III APPELLEE

DATE OF JUDGMENT: 11/27/2024 TRIAL JUDGE: HON. JAMES McCLURE III COURT FROM WHICH APPEALED: TATE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: LINDSEY OSWALT WATSON ATTORNEYS FOR APPELLEE: ROBERT F. STACY JR.

LAUREN ELIZABETH WARD

NATURE OF THE CASE: CIVIL - LEGAL MALPRACTICE DISPOSITION: AFFIRMED - 08/25/2026 MOTION FOR REHEARING FILED:

BEFORE WILSON, P.J., EMFINGER AND LASSITTER ST. PÉ, JJ.

EMFINGER, J., FOR THE COURT:

¶1. On November 12, 2020, Calloway (Buddy) Smith filed a complaint against Frank (Kim) Breese III and a subsequent second amended complaint on October 26, 2023. In these pleadings, Smith alleged that Breese committed legal malpractice, negligence, gross negligence, breach of contract, breach of the implied covenant of good faith and fair dealing, and breach of fiduciary duty. Smith’s claims arose from Breese’s representation of Smith in a prior lawsuit in the county styled Calloway “Buddy” Smith v. Tate County Board of Supervisors, Civil Action No. CV2014-298-JMT (“original action”). In that case, an order granting the Tate County Board of Supervisors’ (“BOS”) motion for summary judgment was entered on November 16, 2017, where the court held that the lawsuit filed by Breese was not

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timely filed in accordance with the Mississippi Tort Claims Act, §§11-46-1 to -29 (Rev. 2019) (“MTCA”). As a result of the original action being dismissed, Smith filed the complaint against Breese, leading to this appeal. The trial court granted Breese’s renewed motion for summary judgment and dismissed Smith’s complaint with prejudice pursuant to an order filed on November 27, 2024. Aggrieved by the trial court’s decision, Smith now appeals.

FACTS AND PROCEDURAL HISTORY

¶2. The facts of the original action are crucial to an understanding and analysis of the legal malpractice case on appeal and necessarily a part of this opinion. Smith testified in his deposition that his health had gotten bad, so he could not farm anymore. As a result, he decided to develop his land and slow down. This would be Smith’s first effort to develop a subdivision in Tate County. After talking with the chairman of the BOS and the county planning director about what was needed to start the process, Smith hired D. M. Yount, a contractor, to build his roads and Newton Land, a surveyor, to plat the lots.

¶3. In March 2000, Smith sent proposed plans to the Tate County planning commission for a new 46-lot subdivision that he named Arrowhead Trace. In August or September 2000, Smith was told he needed an engineer’s approval of his plans. Land advised Smith that he could get an engineer to work on the plans. Also in September 2000, the commission sent Smith a letter stating that he would either need to reduce the number of lots in his proposed subdivision or build a lagoon and water treatment system before his plans could be approved. Smith decided not to build a lagoon, and on September 20, 2000, the commission approved

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Smith’s new plat after he reduced the number of lots to thirty-three. On September 29, 2000, Smith submitted the Arrowhead Trace subdivision blueprint to the BOS for approval.

¶4. On October 18, 2000, Field Dew, a public health environmentalist with the Tate County Health Department, sent a letter to the planning commission and Smith advising them that a soil and site evaluation had been conducted and also stating:

The following restrictions shall be enforced before an Individual Onsite Wastewater Disposal System (I.O.W.D.S.) can be approved:

1. Private wells will be require[ed] for potable water.

Therefore, the location of any well shall be approved by the Tate County Health Department before said wells are drilled on each lot.

2. Due to the soil condition (shallow fragipan) underground absorption cannot be recommended.

3. All lots shall have an approved surface discharge system, by means of spray, overland or pumped disposal, contained on each lot.

4. Lots 18 & 19 shall be sold as one lot. (4.29) acres.[1]

With the aforementioned restrictions and the proper placement and location of dwellings on each lot, an approved I.O.W.D.S. can be installed.

¶5. On November 2, 2000, the planning commission director notified Smith by letter that due to the lack of work completed in Smith’s venture to complete the proposed Arrowhead

1 Michael Goolsby and his wife had purchased Lot 19 from Smith. When they were denied a permit to build on the lot, they were told of this requirement for the first time. As a result, the Goolsbys sued Smith and Tate County. Smith maintained that he had never seen this letter and that there were no restrictions noted on his plat that the BOS had approved. Smith filed a cross-claim against the BOS arguing that any restrictions should have been noted on his final plat that had been approved by the BOS. The court dismissed this cross- claim by an order entered on January 4, 2006, upon finding that the county had “permit approval” immunity pursuant to section 11-46-9(1)(h).

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Trace subdivision, his final plat could not be approved.2 More specifically, Smith was informed that Section 508 of the Tate County Subdivision Regulations required him to submit a road construction blueprint prepared by a licensed engineer before the next phase of the process could be approved. Smith complied with the requirement and obtained an engineer’s blueprint, and the final plat for the Arrowhead Trace subdivision was approved on March 16, 2001.

¶6. One of Smith’s primary complaints in the original action was that other developers in the area were not required to obtain an engineer for their road blueprints in order for their subdivisions to be approved. As such, Smith claimed that he received disparate treatment in the subdivision-development approval process. Smith alleged that while he was waiting on approval from the BOS, market conditions worsened substantially, which resulted in reduced marketability and price for the lots in his subdivision.

¶7. Approximately six months after Smith’s subdivision plan was approved, Smith’s property began having flooding issues. On September 10, 2001, Smith wrote a letter to Laverne Walters, the developer for the neighboring subdivision, Golden Pond, regarding the flooding issue. In his letter, Smith explained, “A problem has arisen on my property since development of the second phase of Golden Pond subdivision. Briefly, the problem concerns excessive water drainage onto my land.” Further, in his interrogatories in the original action, Smith stated that Jimmy Sowell, a Tate County Supervisor, advised him “in the early 2000s” that Golden Pond should never have been approved because no engineer had approved the

2 Notably, this notice was given after the receipt of the letter from the health department advising the parties of a problem with the soil within Arrowhead Trace.

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subdivision blueprint.

¶8. In a letter to Smith dated June 26, 2006, the attorney for the BOS alleged that Smith had blocked a ditch and caused flooding in the Golden Pond subdivision. In a second letter dated August 16, 2006, the board attorney suggested that Smith meet with the county administrator to try and resolve the issue. In response, the record shows that Smith hired Steve Wilson, a professional engineer, to investigate the source of the flooding. Wilson went to the site on August 24, 2006, and reported his findings to Smith in a letter dated November 14, 2006, which stated in part:

Prior to 2001, grass land, pasture, and woods were the primary land uses.

After the development of Golden Pond Subdivision and later phases, the major land use is now residential. This increases flow and runoff amounts significantly. Before the construction of Golden Pond Subdivision and subsequent subdivision phases, runoff flowed evenly out of the area into several small streams and diversions. After construction of the subdivision, water had apparently been diverted from the natural flow patterns into inadequate ditches and culverts in the subdivision developments. The recent repairs made to the diversion along your property line appear not to have any effect on runoff patterns or amounts.

In summation, the failure to adequately control the runoff in the subdivision developments appears to be the cause of flooding problems in the area. Also, several of the homes are in low areas and adjacent to creeks in areas where flooding normally occurs.

Wilson sent an additional letter to Smith on April 10, 2007, after a site visit to Arrowhead Trace. Wilson again stated that the flooding to Smith’s property was caused by drainage issues associated with Golden Pond. Wilson stated in part:

In particular, a new ditch created by the developer of Golden Pond Subdivision diverts massive amounts of water directly onto the north side of your property into an area that for many years retained the water and allowed the water to flow slowly and controlled so as not to flood and erode your field. Now, this

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retention area can not handle the water diverted into it through the new ditch.

¶9. In March 2007, after receiving Wilson’s opinion regarding the source of flooding on Arrowhead Trace, Smith retained Maison Heidelberg to assist him in resolving the flooding issue with the BOS. Breese worked with Heidelberg during this time, not as a member of the firm, but as a contractor. In a letter to the BOS attorney dated April 16, 2007, Breese addressed the board’s prior letters and relayed Wilson’s findings that the problem was not caused by Smith, but was the result of the development of the Golden Pond subdivision. The appellate record also contains evidence that Breese, Wilson, and Smith appeared before the BOS on August 6, 2007, in an effort to address the claim that Smith had caused the flooding. The BOS took the matter under advisement in order to consult with the county engineer.3 This issue apparently remained unresolved.

¶10. There is evidence of a “Flood Insurance Study” for Tate County in January 2009 that showed the flooding continued and worsened. According to documents filed of record by Smith, the Mississippi Department of Transportation released a comprehensive hydraulic study on August 9, 2011, that attributed the flooding issue, at least in part, to the development of Golden Pond. The report pointed to improper slope of lots, shallow roadside ditches, relative flat slope of ditches and small driveway culverts.

¶11. Smith retained Breese in 2011 and Breese began to assist Smith in obtaining public records to substantiate Smith’s suspicions that Golden Pond had not been required to obtain a road construction blueprint prepared by a licensed engineer before the subdivision plan was

3 Breese ended his association with Heidelberg in 2008 and 2009 and started his own firm.

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approved by the BOS. On May 19, 2011, Breese sent a letter to the Tate County planning director requesting construction plans from Golden Pond, Belle Meadows, and Oakridge subdivisions. Breese made additional attempts to obtain the requested information on the surrounding subdivisions on September 1, 2011, October 12, 2011, October 24, 2012, and January 13, 2013. In addition, Breese threatened legal action if the requested documents were not produced. Finally in June 2013, Breese received a letter from County Administrator Rufus Warren that stated, “The only plans that we had possession of on Golden Pond and Oakridge were previously sent by Larry Britt, our current engineer. After diligent searches of our offices and the files of the previous county engineer, the plans for Belle Meadows have yet to be found.”

¶12. Dissatisfied with Breese’s representation, Smith filed a complaint with the Mississippi Bar. Despite the Bar complaint filed by Smith, Breese continued his representation of Smith and sent the BOS a Mississippi Tort Claims Act Notice of Claim letter on June 5, 2014. On October 31, 2014, the BOS sent Breese a letter denying the claims. On December 29, 2014, Breese filed a complaint against the BOS, which included three causes of action: (1) intentional interference with business relations, based on a delay in Smith’s subdivision approval and requiring engineer approval of a road construction blueprint; (2) intentional infliction of emotional distress, based on the same alleged delay and disparate treatment; and (3) willful damage to property, based on the BOS allowing the developer of Golden Pond to divert water from Golden Pond onto Smith’s adjacent property.

¶13. The BOS filed a motion to dismiss the complaint alleging that Smith had not filed a

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timely notice of claim pursuant to the MTCA and that Smith’s claims were barred by the one- year statute of limitations. The trial court entered an order denying the motion to dismiss on September 15, 2015. The BOS filed a petition to appeal from this interlocutory order with the Mississippi Supreme Court in Cause No. 2015-M-01508 on October 6, 2015. This petition was denied by the court on November 12, 2015.

¶14. Then, on October 10, 2017, the BOS filed a motion for summary judgment and a brief in support of its position in the trial court. Smith filed a response, and after hearing arguments from the parties, the court granted the BOS’s motion and dismissed the original action with prejudice on November 16, 2017.4 The trial court found that the lawsuit was not timely filed in accordance with the MTCA. Shortly thereafter, Smith filed a second bar complaint against Breese.

¶15. As a result of what Smith claims to be deficient representation in the original action, he filed a complaint against Breese on November 12, 2020. Smith later filed a second amended complaint on October 26, 2023. It is the dismissal of this complaint that is the basis for the instant appeal. In this complaint, Smith sought damages from Breese for (1) legal malpractice due to negligence; (2) legal malpractice due to gross negligence; (3) breach of contract; (4) breach of the implied covenant of good faith and fair dealing; and (5) legal malpractice due to a breach of fiduciary duty.

¶16. Discovery commenced on the first complaint on May 20, 2021, when Breese served Smith with his first set of written discovery requests. Smith responded on July 21, 2021, and

4 There is no evidence in our appellate record that the dismissal of the original action was appealed.

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supplemented his production in January 2022. Smith withheld certain documents claiming that they were privileged. Among the documents that Smith claimed as privileged were communications and work product from Smith’s former attorneys, Christian Goeldner and Bobby Leatherman. On February 21, 2024, two weeks prior to the discovery deadline, Breese requested additional information from Smith regarding the privileged documents. In response, Smith provided a privilege log on February 26, 2024, which gave a brief description of their contents. The log asserted both attorney-client privilege and attorney work product as reasons for withholding the documents requested. On February 28, 2004, Breese sent Smith a letter demanding production of the requested documents despite Smith’s claim of privilege. After Smith again declined to provide the information requested, Breese filed a motion to compel the production of the documents.

¶17. On April 4, 2024, Breese filed a motion for summary judgment. The trial court set that motion and the motion to compel for a hearing on August 29, 2024. After hearing oral arguments on both motions, the court denied Breese’s motion for summary judgment but granted his motion to compel the requested documents in their entirety. Smith provided the documents to Breese in compliance with the court’s order.

¶18. After reviewing the documents, Breese filed a renewed motion for summary judgment. The trial court held a hearing on Breese’s motion on November 11, 2024, and granted Breese’s renewed motion for summary judgment. As part of the order granting Breese’s renewed motion for summary judgment, the court further ordered Breese to return the $5,000.00 retainer that Smith had paid him to handle the original action. Aggrieved by

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the trial court’s decision, Smith appeals.

STANDARD OF REVIEW

¶19. In White v. Targa Downstream LLC, 358 So. 3d 627, 632 (¶11) (Miss. 2023), the supreme court stated:

“This Court employs a de novo standard of review when considering a trial court’s grant or denial of summary judgment.” State ex rel. Watson v. Long Beach Harbor Resort, LLC, 346 So. 3d 406, 409-10 (Miss. 2022) (internal quotation marks omitted) (quoting Hobson v. Chase Home Fin., LLC, 179 So.

3d 1026, 1033 (Miss. 2015)). Summary judgment will be granted when “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Miss. R. Civ. P. 56(c). “While evidence is viewed in the light most favorable to the nonmoving party, there must be a material fact issue to preclude summary judgment.” Peak v. Cohee, 294 So. 3d 604, 607 (Miss.

2020) (citing Leffler v. Sharp, 891 So. 2d 152, 156 (Miss. 2004)).

ANALYSIS

¶20. Smith raises three issues on appeal, which we will address below, albeit in a different order than they were presented in Smith’s brief.

I. Did the trial court err by finding that Smith could not have succeeded in the original action because his claims were barred by MTCA immunities or the statute of limitations applicable to Smith’s claims?

¶21. We start with the obvious; the trial court in the original action, in fact, dismissed Smith’s claims against the county finding that his claims were barred by both the MTCA’s immunities and the statute of limitations. The question presented by this appeal is whether, after being retained by Smith in this particular matter, Breese failed to timely file the complaint or whether the statute of limitations had already run as to Smith’s claims before

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Breese was retained.5

¶22. Claims governed by the MTCA are subject to a one-year statute of limitations. Specifically, section 11-46-11(3)(a) states in part:

(3)(a) Except as otherwise provided in Section 11-46-20 when the public online registry provided by the Tort Claims Board is incorrect, all actions brought under this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after, except that filing a notice of claim within the required one-year period will toll the statute of limitations for ninety-five (95) days from the date the chief executive officer of the state entity or the chief executive officer or other statutorily designated official of a political subdivision receives the notice of claim.

(Emphasis added). As to when the one-year period begins to run, the supreme court stated in White v. Jernigan Copeland Attorneys PLLC, 346 So. 3d 887, 902 (¶48) (Miss. 2022):

Still, Mississippi Code Section 11-46-11(3)(a) mandates that “[a]ll actions brought under this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based . . . .” Miss. Code Ann. § 11-46-11(3)(a)

(Rev. 2019). “[T]he MTCA’s one-year statute of limitations begins to run when the claimant knows, or by exercise of reasonable diligence should know, of both the damage or injury, and the act or omission which proximately caused it.” Caves v. Yarbrough, 991 So. 2d 142, 155 (Miss.

2008).

(Emphasis added). Smith argues that the one-year statute of limitations deadline extended into the time period when Breese was representing Smith, and had Breese filed the complaint in a timely manner, the original action would not have been barred. Smith relies upon a

5 Our determination of the date Breese was retained by Smith and the exact terms of such engagement are hampered by the fact that the parties did not enter into a written contract. Breese had worked on several issues for Smith through Breese’s relationship with another law firm. However, there is general agreement that Breese himself was retained in 2011 to pursue claims Smith might have against the BOS. So the issue is whether the statute of limitations ran before 2011.

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theory of continuing tortious conduct6 to support his claim relative to the flooding issue and relies upon the discovery rule to support his claim of disparate treatment.

A. Flooding Claims

¶23. As to his claims against the BOS for the flooding of his property, Smith had knowledge of the flooding issues as early as 2001 and does not dispute this fact. Smith wrote a letter on September 10, 2001, to Laverne Walters, the developer for the neighboring subdivision, Golden Pond, regarding the flooding. In his letter, Smith stated that he attributed the flooding of his subdivision to drainage deficiencies associated with Golden Pond. Without a doubt, Smith had knowledge of both his injury from the flooding and the cause of his injury, at least by 2006, based upon the report of his own retained expert, as shown above. This was well before Smith hired Breese to represent him in the original action in 2011.

¶24. Smith claimed, however, in the original action and in the present case, that because the flooding was ongoing, the statute of limitations was tolled with each flooding incident. Therefore, he contends, the statute of limitations had not run before he retained Breese. In Humphries v. Pearlwood Apartments Partnership, 70 So. 3d 1133 (Miss. Ct. App. 2011), this Court considered a similar argument. Humphries claimed that the trial court erred by finding that his claim was time-barred, arguing that “the flooding caused by the construction of Pearlwood is a continuing tort that tolled the statute of limitations.” Id. at 1135 (¶¶8-9). In that case, this Court stated:

6 The record shows that Breese raised this issue in the original action in an attempt to dismiss based upon the one-year statute of limitations. The court rejected this argument when it dismissed the original action as being untimely filed.

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We must determine whether the flooding is a continuous tort sufficient to toll the three-year statute of limitations. “A ‘continuing tort’ is one inflicted over a period of time; it involves a wrongful conduct that is repeated until desisted, and each day creates a separate cause of action. A continuing tort sufficient to toll a statute of limitations is occasioned by continual unlawful acts, not by continual ill effects from an original violation.” Pierce v. Cook, 992 So.

2d 612, 619 (¶25) (Miss. 2008) (quoting Stevens v. Lake, 615 So. 2d 1177, 1183 (Miss. 1993)). Thus, the continuing-tort doctrine will not be applicable where the harm results from one wrongful act or omission. Id. (citation omitted).

Id. at (¶8) (Emphasis added). In the case at hand, this is exactly what happened. The engineer Smith hired stated in the letter to Smith that the failure to adequately control the runoff in the Golden Pond subdivision appeared to be the cause of flooding problems in the area. As a result of Golden Pond’s deficient drainage system, Smith’s property continued to flood every time the area had substantial rainfall. There was no evidence in the original action, or the case at hand, of any acts by the BOS that caused or contributed to cause flooding within five years of the date Smith hired Breese.7 There were only continual ill effects from an original act during the development of Golden Pond years earlier.

B. Disparate Treatment Claims

¶25. As for Smith’s claims against the BOS for disparate treatment, he contends that he was not aware of a claim until he discovered that the BOS did not have construction blueprints from surrounding subdivisions on file that contained an engineer’s stamp and signature. Any delay in gaining approval for Smith’s development of Arrowhead Trace subdivision occurred in 2000 and 2001. Smith claims that he did not receive information that

7 Smith had the burden to produce evidence of these elements in response to the motion for summary judgment because at trial Smith carried the ultimate burden. See Karpinsky v. Am. Nat. Ins. Co., 109 So. 3d 84, 88-89 (¶11) (Miss. 2013).

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other developers were not required to obtain an engineer’s approval of their construction plans until he received a letter from the county stating as much in June 2013, as noted above.

¶26. As set forth in Jernigan Copeland, 346 So. 3d at 902 (¶48) the one-year statute of limitations may be tolled until the time when, through reasonable diligence, Smith should have discovered his claim exists. However, to take advantage of this “discovery” rule, Smith was required to exercise reasonable diligence in investigating the cause of his injury. See Lyas v. Forrest Gen. Hosp., 177 So. 3d 412, 416-17 (¶21) (Miss. 2015).

¶27. When the flooding of Arrowhead Trace began around 2001, the record shows that Smith believed the flooding was a result of defective drainage from Golden Pond Subdivision. This knowledge is confirmed by the letter Smith wrote to Laverne Walters, as noted above. The record suggests that the flooding was a catalyst for Smith to begin an investigation into Golden Pond’s development. In fact, Smith stated in his interrogatories in the original action that County Supervisor Jimmy Sowell advised him “in early 2000s” that Golden Pond should never have been approved because there had been no engineer approval of the subdivision blueprint. Given this information that Golden Pond was allegedly approved without an engineer’s blueprint, Smith was put on notice of a potential disparate treatment claim at that time and should have begun an investigation into the matter. This information from Sowell was provided well over five years before Smith hired Breese to represent him in the original action.

¶28. We find that any claims that Smith may have had against the BOS for the flooding of his land, or for disparate treatment relative to the approval of his plans to develop Arrowhead

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Trace Subdivision, were barred by the applicable one-year statute of limitations. Smith knew the flooding caused his injuries and knew the cause of the flooding, at the latest, by 2006. Smith knew, or by the exercise of reasonable diligence should have known, of his potential claim for disparate treatment years before Breese was retained.

¶29. Smith argues that the trial court erred by dismissing his legal malpractice claim against Breese on the basis that his claims against the BOS were barred by the statute of limitations. In granting the motion for summary judgment, the trial court referenced McGilberry v. Ross, 358 So. 3d 340, 345-46 (¶16) (Miss. Ct. App. 2022), in its ruling. McGilberry states in part that to “prevail on a claim for legal malpractice based on an allegation of negligence, or breach of the standard of care, one must prove by a preponderance of the evidence (1) an attorney-client relationship; (2) the attorney’s negligence in handling the client’s affairs; and (3) proximate cause of injury.” Id. There is no dispute that Breese had an attorney-client relationship with Smith, and Breese does not dispute the fact that the complaint in the original action was not timely filed. Therefore, the trial court’s ruling here focused on the third prong of the test and whether Smith would have been successful but for Breese’s negligence. As already discussed, this Court finds that the record is sufficient to show that the statute of limitations had run on Smith’s MTCA claims prior to Breese’s representation. Therefore, despite Breese’s delay in filing the complaint after he was retained by Smith, the inaction by Breese cannot be said to be the proximate cause of any injury to Smith.

¶30. We find that the trial court did not err by granting summary judgment based upon its finding that Smith’s claims against the BOS were barred by the statute of limitations prior

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to Smith retaining Breese in this matter. Because Smith’s claims were barred, any negligence by Breese could not have been a proximate cause of Smith’s injury.

II. Did the trial court err by failing to consider whether Smith could have prevailed on his other claims against Breese?

¶31. In Count V of his second amended complaint, Smith states his cause of action as “Legal Malpractice-Breach of Fiduciary Duty.” In his brief on appeal, Smith acknowledges the elements that he was required to prove in order to recover on this claim. In Crist v. Loyacono, 65 So. 3d 837, 842-43 (¶15) (Miss. 2011), the supreme court stated:

When a legal-malpractice claim is based on an allegation of breach of fiduciary duty, the plaintiff must establish (1) the existence of an attorney-client relationship; (2) the acts constituting a violation of the attorney’s fiduciary duty; (3) that the breach proximately caused the injury; and (4) the fact and extent of the injury.

(Footnote omitted). Smith contends that he was damaged by Breese’s failure to adequately research his case and provide “comprehensive advice for achieving the best result.” He contends that Breese’s inaction caused him to:

1. Forfeit available causes of action against private developers, and

2. Lose the opportunity to prove a federal equal protection claim against the County or the supervisors in their individual capacities.

¶32. In response to the motion for summary judgment, however, Smith failed to produce any summary judgment evidence that he had a viable claim against any other party at the time he retained Breese in 2011. See Karpinsky, 109 So. 3d at 88 (¶11). Because Smith did not identify a specific claim against a specific party, we must address the issue of the statute of limitations in a general way. In all actions where no specific statute of limitations is

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applicable, the general “catch-all” three-year statute of limitations pursuant to section15-1-49 applies. Concerning the time a cause of action accrues under this provision, this Court stated in Clearman v. Pipestone Property Services LLC, 374 So. 3d 1254, 1258 (¶10) (Miss. Ct. App. 2023):

More importantly, though, the plain language of “[s]ection 15-1-49(2) provides a discovery rule that delays the accrual of the cause of action until the plaintiff discovers or with reasonable diligence should have discovered a latent injury . . . . No provision of [s]ection 15-1-49 provides that a plaintiff must have knowledge of the cause of the injury before the cause of action accrues, initiating the running of the statute of limitations.” Angle v. Koppers Inc., 42 So. 3d 1, 7 (¶18) (Miss. 2010). Therefore, our Supreme Court has held that under section 15-1-49, “causes of action accrue upon discovery of the injury, not discovery of the injury and its cause. Knowledge of the cause of the injury is irrelevant to the analysis; rather, the inquiry is when the plaintiff knew or should have known of an injury.” F & S Sand Inc. v. Stringfellow, 265 So. 3d 170, 174 (¶9) (Miss. 2019) (brackets, quotation marks, and citations omitted)

(quoting Am. Optical Corp. v. Est. of Rankin, 227 So. 3d 1062, 1068 (¶23)

(Miss. 2017)).

Without more from Smith in his summary judgment response, any claim he may have had against any other party would be barred by the three-year statute of limitation. Smith knew of his injuries in the early 2000s, well before he retained Breese in 2011.

¶33. On appeal, Smith also contends that a jury should decide his breach of contract claim. In support of his argument on this point, Smith raises several ways in which Breese breached his contract with Smith. He contends that Breese breached the contract by (1) failing to timely file the complaint in the original action; (2) by dragging his feet in pursuing Smith’s claim in the original action; and (3) by failing to develop Smith’s case for trial in the original action. As noted above, the complaint in the original action was barred by the statute of limitations prior to Breese being retained by Smith. These claims are without merit.

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¶34. Smith also claims Breese breached the contract by failing to research the availability of federal claims and by failing to advise Smith to sue other developers not covered by the MTCA. As noted above, Smith failed to produce any summary judgment evidence that any viable claim existed against any party at the time Smith hired Breese in 2011. This issue is without merit.

III. Did the trial court err by ordering the unredacted production of documents protected by the attorney-client privilege and/or the attorney work product doctrine?

¶35. In response to a request for production of documents by Breese, Smith produced a privilege log of documents he alleged were protected by the attorney-client privilege and/or the attorney work product doctrine. Breese filed a motion to compel the production of these documents. Breese argued that Smith had waived the attorney-client privilege by seeking damages for the payment of attorney’s fees to other attorneys. Breese also argued that these documents were not “work product” in the present case. Breese argued that he had a substantial need for these documents and that it would be an undue hardship to require Breese to obtain this information through other means and asked the trial court to conduct an in camera review of the documents to determine whether they are discoverable. The motion was noticed for a hearing on August 29, 2024, along with Breese’s motion for summary judgment. On that date, the motion came on for hearing and the parties submitted the issue to the court based upon their pleadings on the motion. The court ruled from the bench that the documents be produced. A written order granting the motion to compel was

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entered on September 9, 2024.8

¶36. Mississippi Rule of Civil Procedure 26(b)(1) provides: “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the issues raised by the claims or defenses of any party.” Breese sought discovery of materials that Smith claimed to be privileged. Rule 26(b)(6)(A) states:

When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, electronically stored information, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.

M.R.C.P. 26. In compliance with the rule, Smith produced a “Privilege Log.” After reviewing the log, Breese filed the motion to compel. The trial court’s responsibility at the hearing on the motion is set out in Powell v. McLain, 105 So. 3d 308 (Miss. 2012):

Defendants have an obligation to identify specifically every relevant document withheld on the basis of privilege so the circuit court is able to make an informed decision on a motion to compel. The circuit court has an obligation to conduct an in camera review of every requested document withheld on the basis of privilege and to make detailed findings as to whether any documents requested are discoverable. This should be done on the record, stating the basis for each decision. We have held clearly that “blanket” orders compelling production of documents are not sufficient.

Id. at 315 (¶20); see also Miss. Baptist Health Sys. Inc. v. Johnson, 360 So. 3d 949, 954-55

(¶14) (Miss. 2023); Fresenius Medical Care Holdings Inc. v. Hood, 269 So. 3d 36, 58 (¶¶76- 77) (Miss. 2018); Burgess v. Patterson, 188 So. 3d 537, 560 (¶75) (Miss. 2016).

8 This order is styled as an agreed order and signed by counsel for both parties.

However, we note that Smith did not concede this issue at the hearing.

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¶37. The trial court here failed to follow the required procedure and, basically, issued a blanket order to disclose all the documents on the privilege log; however, we find this error to be harmless. It is true that the trial court, at first, denied Breese’s motion for summary judgment and then, after ordering production of the documents, granted Breese’s “renewed” motion for summary judgment. Further, a review of the transcript from the second hearing shows that these documents were discussed in detail and may well have changed the trial court’s mind on the issue.

¶38. This Court, as noted above, reviews the grant of summary judgment de novo. As shown above, our decision that summary judgment was properly granted did not rely upon any of the alleged privileged documents. Therefore, this issue is moot.

CONCLUSION

¶39. Based upon the analysis above, we affirm the trial court’s order granting Breese’s motion for summary judgment.

¶40. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS, McDONALD, LAWRENCE, WEDDLE AND LASSITTER ST. PÉ, JJ., CONCUR. McCARTY, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.