Articles Posted in Legal Malpractice

 

Where plaintiff submitted no expert proof to support his legal malpractice claim, summary judgment for defendant was affirmed.

In Guo v. Rogers, No. M2020-01209-COA-R3-CV, 2022 WL 1220917 (Tenn. Ct. App. April 26, 2022), plaintiff was represented by defendant attorney in an underlying case in which plaintiff asserted several claims, including malicious prosecution. Plaintiff’s primary complaint here was that “Defendant failed to bring to the attention of the trial judge in that matter…evidence that a criminal charge against Plaintiff had been dismissed and judicially expunged.” The trial court in the underlying case granted the opposing party summary judgment based on several legal grounds, including that while expungement by executive order was a favorable outcome for purposes of a malicious prosecution claim, plaintiff had failed to show that a judicial expungement should be treated in the same way. Plaintiff thereafter filed this pro se legal malpractice claim against defendant.

Continue reading

The one-year statute of limitations for a legal malpractice claim began to run no later than when a representative for plaintiff reviewed the court file after the trial court had found in the other party’s favor, where the court file contained information sufficient to establish constructive notice of defendant attorney’s alleged wrongdoing in the underlying case.

In Coffee County v. Spining, No. M2020-01438-COA-R3-CV, 2022 WL 168145 (Tenn. Ct. App. Jan. 19, 2022), plaintiff county filed this legal malpractice suit against defendant attorney who had represented the county in an underlying action filed by a former county employee. In the underlying case, defendant and opposing counsel had attended a bench conference where they all agreed that the employee would seek emotional damages with the jury, and if the jury found that a PEPFA violation had occurred, the employee would then seek equitable damages through a bench trial. The attorneys agreed to a jury form that included only two questions, neither of which asked if the employee’s “termination actually resulted from the County’s PEPFA violation.” After the jury found for the employee, the county’s attorney moved for a new trial, arguing that the jury verdict did not support an award of damages from the termination. The trial court denied that motion and entered an award for the former employee on July 7, 2017.

Continue reading

Where plaintiff had filed complaints with the Board of Professional Responsibility (BPR) complaining of the same allegations that allegedly supported her legal malpractice claim, and those BPR complaints were filed more than one year before the legal malpractice suit was filed, summary judgment based on the statute of limitations was affirmed.

In Jones v. Marshall, No. M2020-01627-COA-R3-CV (Tenn. Ct. App. Dec. 28, 2021), plaintiff filed this pro se legal malpractice claim against defendant on December 20, 2019. Plaintiff had previously reported defendant to the BPR based on the same allegations in November 2018. Defendant filed a motion to dismiss, asserting that the BPR decisions on the matter “were res judicata and Plaintiff had failed to establish a prima facie case of legal malpractice.” Defendant filed a separate motion for summary judgment, asserting that the complaint was barred by the statute of limitations.

Continue reading

Where plaintiff filed a legal malpractice action in federal court within the one-year statute of limitations, but then waited more than one year after dismissal of that federal case to file this claim for legal malpractice, dismissal based on the statute of limitations was affirmed. In Tolson v. Herbison, No. M2020-01362-COA-R3-CV (Tenn. Ct. App. Aug. 12, 2021), plaintiff retained defendant to represent him in post-conviction matters related to plaintiff’s previous conviction for first-degree murder. The trial court denied post-conviction relief, which the Court of Appeals affirmed, and the Tennessee Supreme Court denied certiorari.

On May 23, 2013, plaintiff filed a complaint with the Tennessee Board of Professional Responsibility asserting that defendant failed to notify him of the denial of certiorari and failed to correspond with him, and that “as a result of [defendant’s] alleged errors, [plaintiff’s] writ of habeas corpus was denied as time-barred.” When plaintiff completed this complaint, he signed a disclaimer noting that legal malpractice claims are subject to a statute of limitations.

Plaintiff filed a legal malpractice claim in federal court on October 18, 2013, which the district court dismissed. The Sixth Circuit affirmed dismissal on October 6, 2016. Plaintiff then filed this case in Davidson County Circuit Court in July 2018, which the trial court dismissed as time-barred, and the Court of Appeals affirmed.

Where defendant law firm terminated its representation of plaintiff five months before the statute of limitations on any of plaintiff’s claims related to a car accident expired, summary judgment for defendant based on a lack of duty was affirmed. In Finley v. Wettermark Keith, LLC, No. E2020-01081-COA-R3-CV (Tenn. Ct. App. Aug. 6, 2021), plaintiff hired defendant law firm to represent him after he was involved in a car accident. The attorney-client agreement stated that defendant “had agreed to handle all claims against ‘all responsible parties’ arising out of the accident.” Defendant negotiated an $1,800 settlement with the other driver’s insurance company, to which defendant alleged that plaintiff agreed, but plaintiff refused to sign the settlement release. Defendant thereafter terminated its representation of plaintiff, and defendant sent plaintiff a letter confirming the termination of representation and “encouraging him to seek the advice of another attorney concerning his case before expiration of the applicable time limitation.” When defendant stopped representing plaintiff, five months remained before the statute of limitations for the car accident claims would expire.

After the statute of limitations for the car accident claims had passed, plaintiff filed this legal malpractice action pro se. Plaintiff “asserted that [defendant] had failed to file suit against General Motors Company within the applicable statute of limitations” for injuries caused by airbags in his car. Defendant responded, stating that it never agreed to file suit against General Motors, that it did not handle air bag cases, that it negotiated a settlement that was then refused by plaintiff, and that it terminated its representation of plaintiff while he still had five months remaining to file suit in the underlying case. Both parties filed motions for summary judgment, and the trial court granted summary judgment for defendant, holding that any duty defendant had ceased when it terminated its representation of plaintiff. The Court of Appeals affirmed that ruling.

To make a claim for legal malpractice, a plaintiff must prove five elements, one of which is “a duty owed by the lawyer.” (internal citation omitted). Plaintiff did not dispute that defendant sent him a letter terminating its representation of him, and the Court found this dispositive of the case. The Court explained:

     Where plaintiff alleged that the law firm representing both him and his employer had him sign an engagement letter that waived conflicts of interest, but that the law firm had engaged in behavior before the representation that created a conflict of interest and which the firm did not inform him of when presenting him with the engagement letter, plaintiff had plead sufficient facts to support a legal malpractice claim and judgment on the pleadings for defendant was reversed.

In Culpepper v. Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., No. E2019-01932-COA-R3-CV (Tenn. Ct. App. Oct. 16, 2020), plaintiff filed a legal malpractice claim against defendants, who had represented both plaintiff and the company for which plaintiff worked as interim CEO. In his complaint, plaintiff alleged that defendants “represented him concerning matters before the United States Securities and Exchange Commission (SEC) on August 4, 2016 and August 11, 2016.” He asserted that defendants then “met with an independent forensic accountant and discussed [plaintiff] with respect to the SEC and other attorney-client privileged and confidential matters WITHOUT his knowledge” on August 15, 2016. Plaintiff also alleged that defendants had discussions with the company’s board of directors without his knowledge while representing both plaintiff and the company, that defendants “presented fabricated documentation to support his ultimate termination for cause,” that defendants had represented both him and the company simultaneously “despite an obvious conflict of interest,” and that defendants had continued representing the company after terminating representation of plaintiff in December 2016.

Continue reading

Where defendant attorneys presented expert proof consisting of their own affidavits and the affidavit of another attorney stating that they complied with the applicable standard of care in their previous representation of plaintiff, the testimony of plaintiff and another witness, neither of whom were attorneys, was not enough to defeat summary judgment in a legal malpractice case.

In Hobson v. Frank, No. M2019-01556-COA-R3-CV (Tenn. Ct. App. June 4, 2020), plaintiff filed a pro se legal malpractice case against the two attorneys who had previously represented her in a “federal failure to hire case.” In her federal case, plaintiff had claimed that the Department of Defense committed racial discrimination by not hiring her. She originally filed that case pro se, but defendants were appointed to be her trial counsel. Defendants worked on the case for around seven months and “filed several motions in limine, frequently communicated with Plaintiff…, participated in several pre-trial conferences, reviewed thousands of pages of discovery…, and litigated the three-day jury trial.” Defendants and their staff worked around 700 hours on the case and were not paid for their representation of plaintiff, but the jury returned a verdict for the defendant.

Continue reading

 

Where plaintiffs knew that a Tennessee judgment had to be renewed when it was ten years old, had not spoken with an attorney at the firm who previously represented them, and had not received any bills or communications about a renewal of the judgment, plaintiffs’ legal malpractice claim filed three years after the judgments needed to be renewed was time-barred.

In Rozen v. Wolff Ardis, P.C., No. W2019-00396-COA-R3-CV (Tenn. Ct. App. Dec. 17, 2019), plaintiffs had been represented by defendant law firm in a 2003 case. In that case, plaintiffs were awarded judgments against two defendants who stole jewelry from plaintiffs’ business, but because those defendants were sent to prison, the judgments were not collected on at the time. When one of the two defendants filed for bankruptcy in 2006, defendant law firm represented plaintiffs to ensure that the judgment was not discharged. After that representation in 2006, plaintiffs “received a letter from Wolff Ardis stating that ‘this matter is completed’ and requesting that [plaintiffs] pay for the legal services performed for them.”

Continue reading

Where a plaintiff had previously signed a marital dissolution agreement that stated that the divorce settlement was “fair and equitable,” but also sought to bring a legal malpractice claim against an attorney who had represented her during a portion of her divorce proceedings, the Supreme Court ruled that the signed statement did not invoke the doctrine of judicial estoppel and the plaintiff’s claim could move forward.

In Kershaw v. Levy, No. M2017-01129-SC-R11-CV (Tenn. Sept. 18, 2019), plaintiff had previously been involved in a contentious divorce proceeding. She had already faced several issues when she retained defendant attorney to begin representing her in the divorce. At the time attorney began his representation of her, the divorce court had imposed discovery sanctions against plaintiff, including granting the husband a default judgment, striking her pleadings, and “barring [plaintiff] from asserting any defenses to the husband’s claims.” The Court extended plaintiff’s discovery deadline when she hired defendant attorney, however, and “apparently agreed to lift the sanctions, provided [plaintiff] timely file her discovery responses.”

Continue reading

Where a legal malpractice plaintiff could not “prove that he would have obtained relief in the underlying lawsuit but for the attorney’s malpractice,” summary judgment was affirmed.

In Marble v. Underwood, No. M2017-02040-COA-R3-CV (Tenn. Ct. App. June 24, 2019), plaintiff filed a legal malpractice action against the attorney who had initially been appointed to represent him in a case with the Department of Children’s Services (“DCS”) regarding the custody of his minor child. While defendant attorney was representing him, the plaintiff/father agreed to two different parenting plans with many requirements, which were eventually ratified by the trial court. During the time father was represented by defendant, DCS filed a dependency and neglect petition as to the minor. Defendant attorney “advised Father to stipulate that the Child was dependent and neglected,” father did so, and the “child was adjudicated as dependent and neglected.”

After this, father retained different counsel. He appealed the dependent and neglected finding to circuit court, and after a somewhat convoluted procedural process, “the trial court ultimately ruled that the Child was dependent and neglected as a result of Father’s inability to care for her and based upon his severe abuse for his knowing failure to protect her.” The ruling was affirmed on appeal.

Contact Information