Linda Grandquest v. Tommy Robertson
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-01325-COA
LINDA GRANDQUEST
APPELLANT
v.
ESTATE OF HERSHEL L. MCFARLAND,
REBECCA WILLIAMS, AN INDIVIDUAL; AND
TOMMY ROBERTSON, AN INDIVIDUAL
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
06/30/2008
HON. ROBERT B. HELFRICH
GEORGE COUNTY CIRCUIT COURT
STEPHEN W. MULLINS
JAMES H. HEIDELBERG
JESSICA MARIE DUPONT
CIVIL - LEGAL MALPRACTICE
SUMMARY JUDGMENT GRANTED TO
DEFENDANT ROBERTSON
AFFIRMED: 09/29/2009
BEFORE MYERS, P.J., ISHEE AND MAXWELL, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Linda Grandquest brought suit against Hershel L. McFarland,1 Rebecca Williams, and
Tommy Robertson in the Circuit Court of George County. Grandquest purchased real
property from Williams that was subject to a mortgage held by McFarland. Grandquest
alleged that Robertson, an attorney, committed fraud and legal malpractice in failing to
advise her of the lien. The circuit court granted summary judgment to Robertson alone and
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McFarland subsequently died, and his estate was substituted as a party.
certified it as a final judgment under Mississippi Rule of Civil Procedure 54(b). Grandquest
appeals. Finding no error, we affirm.
FACTS
¶2.
On May 11, 2006, Grandquest filed her complaint. She was not immediately able to
serve process on any of the defendants other than Robertson, who answered on August 10,
2006. Robertson propounded discovery to Grandquest, and her deposition was taken, but
Grandquest never sought discovery from Robertson. Robertson then moved for summary
judgment, which was supported by his affidavit and excerpts from Grandquest’s deposition.
Robertson argued that Grandquest had failed to produce any evidence of fraud or an attorneyclient relationship. Grandquest offered no additional evidence in response, but she argued
that the evidence cited by Robertson was sufficient to create a genuine issue of material fact
on each issue.
¶3.
Owing to the limited record,2 the facts are essentially undisputed. On May 22, 2001,
McFarland and Williams executed a deed of trust on the subject property, appointing
Robertson as trustee. Williams subsequently contracted to sell the property to Grandquest.
Grandquest paid one-half ($8,000) of the purchase price in advance.
Williams told
Grandquest that her attorney, Robertson, would “do the closing” and “take[] care of” the
paperwork. Grandquest testified that, based on Williams’s representations and her past
2
The evidence before the court on summary judgment consisted only of Robertson’s
affidavit, admissions in the pleadings, and ten pages excerpted from Grandquest’s
deposition. Grandquest’s full deposition was not made a part of the record on appeal.
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experience with real estate closings, she believed Robertson would “do[] what he could do
to make everything right in me purchasing [the property].”
¶4.
Williams then arranged for Robertson’s office 3 to draft a “Warranty Deed”
transferring the property to Grandquest, as well as an “Authority to Cancel Deed of Trust”
that would terminate the mortgage on the property held by McFarland. “TITLE TO SAID
LAND NOT EXAMINED” was printed on the warranty deed.
¶5.
On September 13, 2002, Williams and Grandquest met at Robertson’s office, where
Grandquest testified she was presented with the completed deed. Williams then signed the
deed in Robertson’s office, and it was notarized by a member of Robertson’s staff.
Grandquest then paid Williams the remaining balance on the property, and Grandquest wrote
a check to Robertson in the amount of $57.50.4 Grandquest did not recall seeing the
“Authority to Cancel,” but Robertson’s affidavit stated that it was given to Williams.
¶6.
The “Authority to Cancel” was never filed, and on May 12, 2003, Robertson, acting
as trustee, foreclosed on the deed of trust held by McFarland.
¶7.
The circuit court found no evidence of fraud or an attorney-client relationship between
Robertson and Grandquest. It therefore granted summary judgment to Robertson on January
31, 2008. Grandquest’s motion for reconsideration was denied on June 30, 2008, and this
appeal was taken.
3
Grandquest acknowledges that she never met Robertson, but she did testify to some
interaction with a woman in his office named “Jennifer.”
4
The check had a “For” line, but it was left blank.
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STANDARD OF REVIEW
¶8.
We review a trial court’s grant of summary judgment de novo. Treasure Bay Corp.
v. Ricard, 967 So. 2d 1235, 1238 (¶10) (Miss. 2007). This Court “examines all the
evidentiary matters before it – admissions in pleadings, answers to interrogatories,
depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So. 2d 977, 979 (¶7) (Miss. 2001)
(citations omitted). The moving party has the burden of demonstrating that no genuine issue
of material fact exists, and the nonmoving party must be given the benefit of doubt
concerning the existence of a material fact. Id. “If no genuine issue of material fact exists
and the moving party is entitled to judgment as a matter of law, summary judgment should
be entered in that party’s favor.” Monsanto Co. v. Hall, 912 So. 2d 134, 136 (¶5) (Miss.
2005).
DISCUSSION
1.
¶9.
Malpractice
Grandquest alleges that Robertson committed malpractice in failing to advise her of
the lien on the property. She also alleges a cause of action for “conflict of interest” in
Robertson’s subsequent foreclosure of the property as trustee.
¶10.
To survive summary judgment in a legal malpractice case, a plaintiff must produce
evidence on each of the following elements: (1) existence of a lawyer-client relationship, (2)
negligence on the part of the lawyer in handling his client’s affairs entrusted to him, (3)
injury, and (4) proximate cause. Hickox v. Holleman, 502 So. 2d 626, 633 (Miss. 1987). The
circuit court found that Grandquest failed to produce any evidence from which a jury could
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find the existence of an attorney-client relationship and, therefore, granted summary
judgment to Robertson. On appeal, Grandquest argues that the payment of the $57.50 check
to Robertson and Grandquest’s subjective belief that Robertson represented her is sufficient
for a jury to find an attorney-client relationship.
¶11.
The Restatement (Third) of Law Governing Lawyers section 14 (2000) states that the
relationship of client and lawyer arises when:
(1) a person manifests to a lawyer the person’s intent that the lawyer provide
legal services for the person; and either:
(a) the lawyer manifests to the person the consent to do so; or
(b) the lawyer fails to manifest lack of consent to do so, and the lawyer
knows or reasonably should know that the person reasonably relies on
the lawyer to provide services; or
(2) a tribunal with power to do so appoints the lawyer to provide the services.
See also Singleton v. Stegall, 580 So. 2d 1242, 1244 n.2 (Miss. 1991).
¶12.
Grandquest argues that she manifested her intent that Robertson represent her by
tendering the check for $57.50, which Robertson accepted. However, on the circumstances
presented, we find that this was insufficient. Grandquest stated in her deposition that she did
not select Robertson; she did not direct him to prepare the documents or instruct him on
which documents to prepare; and the documents had been prepared in advance, at what she
believed was the seller’s direction. Grandquest did not request or receive any legal advice
from Robertson or his staff, and she testified that her belief that Robertson was responsible
for ensuring that she received the property clear of any liens was based on her past
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experience with other transactions and representations made by the seller. In fact, in her
deposition, Grandquest repeatedly referred to Robertson as “[Williams’s] attorney.” It
appears, without contradiction in the record, that Grandquest paid the cost of the document
preparation – which was undertaken by the seller – as part of the deal for the purchase of the
property. The trial court did not err in finding this evidence insufficient to establish an
attorney-client relationship.
¶13.
Furthermore, assuming that an attorney-client relationship were established, we note
that the “legal services” at issue were of limited scope – the preparation of a deed. The
supreme court, discussing attorney-client privilege, has stated:
[P]rivileged communications do not extend to one acting as a mere scrivener,
although of the legal profession. . . .
An attorney who is requested to prepare a deed or mortgage, no legal
advice being required, is not privileged, and may testify as to what comes to
his knowledge in connection with such transaction. And when the terms of a
contract have been agreed upon between the parties, and an attorney is
afterwards employed as a scrivener merely to reduce the contract to writing,
and no inquiry is made of him as to its legal effect, communications made to
him, while thus engaged, will not be regarded as privileged . . . .
Rogers v. State, 266 So. 2d 10, 20 (Miss. 1972) (quoting Randel v. Yates, 48 Miss. 685, 689
(1873)). There, the supreme court was “of the opinion the evidence was not privileged since
it revealed nothing given in confidence, did not involve an attorney’s advice emanating from
an attorney[-]client relationship, and in fact, related to the preparation of two deeds, the
description of which was related to the secretary of the attorney.” Id. Clearly, then, the
supreme court has recognized that a deed may be prepared by an attorney or his staff without
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the rendering of or the expectation of legal advice.
¶14.
On this record, we find nothing to suggest that the services at issue concerned
anything but the mere preparation of a deed; there is no evidence that legal advice was sought
from or offered by Robertson. He cannot be found to have committed malpractice for failing
to advise where no advice was contemplated by the representation. Likewise, concerning
Robertson’s subsequent foreclosure on the property, other courts have held that no duty of
loyalty to former clients exists where an attorney acted only as a “scrivener” in preparation
of a deed. See Griffith v. Taylor, 937 P.2d 297, 305-09 (Alaska 1997) (nonetheless finding
a genuine issue of material fact where client alleged that attorney rendered legal advice).
This issue is without merit.
2.
¶15.
Fraud
To succeed on a claim for fraud, a plaintiff must prove, among other things, a false
representation by the defendant. See, e.g., Hernandez v. Vickery Chevrolet-Oldsmobile Co.,
652 So. 2d 179, 183 (Miss. 1995). Grandquest complained that the deed prepared by
Robertson contained a “false legal description” of the property, but she produced no evidence
to substantiate this allegation. We find that the trial court did not err in granting summary
judgment on this issue.
¶16. THE JUDGMENT OF THE CIRCUIT COURT OF GEORGE COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND
CARLTON, JJ., CONCUR. MAXWELL, J., CONCURS IS RESULT ONLY.
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