Articles Posted in Legal Malpractice

Where a pro se plaintiff knew about defendants’ alleged legal malpractice more than one year before he filed suit, summary judgment based on the statute of limitations was affirmed.

In Garrett v. Weiss, No. E2022-01373-COA-R3-CV (Tenn. Ct. App. May 25, 2023), plaintiff filed a legal malpractice claim against defendant attorneys based on their representation of him in an underlying divorce case, which included an order of protection against plaintiff. The order of protection was entered on May 30, 2017, and stated that plaintiff could no longer reside at a Tellico Plains residence, but the order was supposed to specify a different residence located in Sweetwater.

Beginning in June 2017, “Plaintiff informed Defendants on more than one occasion that the Circuit Court had erred in its May 30, 2017 amended of or protection by listing the incorrect address[.]” In August 2017, plaintiff was arrested due to his refusal to leave the Tellico Plains address, and he was incarcerated for six months. On March 5, 2018, plaintiff filed a pro se motion to alter or amend the order of protection by correcting the address, which was granted in April 2018.

Where a legal malpractice plaintiff provided no expert testimony to support his claims against defendant lawyer, summary judgment for the defendant was affirmed.

In Parks v. Holland, No. E2021-01506-COA-R3-CV (Tenn. Ct. App. May 15, 2023), plaintiff filed a pro se legal malpractice claim against defendant attorney based on the attorney’s representation of plaintiff in an employment discrimination/wrongful termination case. In the underlying case, plaintiff had settled his claim for $75,000 during a second mediation, but in this action, plaintiff asserted that he had instructed defendant attorney not to settle the underlying case for less than mid-to-high six figures. Plaintiff further asserted that defendant was negligent in failing to take into account plaintiff’s loss of health benefits, and in failing to file suit against another potential defendant.

Defendant attorney filed a motion for summary judgment, arguing that “Plaintiff provided no expert testimony to establish the standard of care for attorneys and no such evidence of any breach of that standard of care.” With his motion, defendant filed the expert affidavit of another attorney as well as his own affidavit. Both affidavits pointed out problems with plaintiff’s underlying case, opined that the plaintiff received a favorable settlement in the employment case, pointed out that plaintiff signed and agreed to the settlement, and stated that defendant did not breach the required standard of care. In addition, defendant presented evidence that plaintiff was informed that defendant would not file suit against the additional defendant and that plaintiff had stated he was happy with his representation after the mediated settlement.

Where plaintiff could not show that he was harmed in any way by defendant attorney’s alleged legal malpractice, summary judgment on the malpractice claim was affirmed.

In a memorandum opinion in Sutton v. The Westmoreland Law Firm, No. M2021-01209-COA-R3-CV (Tenn. Ct. App. Mar. 21, 2023) (memorandum opinion), plaintiff consulted with and hired defendant attorney after receiving a detainer warrant from his apartment complex. When plaintiff met with defendant, they discussed a $1,000 retainer but did not discuss who was responsible for paying filing fees.

Defendant attorney filed an answer to the detainer warrant, and at plaintiff’s request, filed a counter-complaint alleging that the apartment had been unlivable due to a water leak. At the hearing on the matter, the attorney for the apartment complex admitted to an accounting error, and while the trial court granted possession to the complex, it refused any request for damages against plaintiff. Regarding plaintiff’s counter-complaint, the trial court informed plaintiff that the filing fee had not been paid and therefore dismissed the counter-complaint. After the hearing, plaintiff terminated his representation by defendant attorney.

Where plaintiff alleged that defendant attorneys ignored settlement offers and rejected offers on illogical bases in a previous class action case, dismissal of plaintiff’s legal malpractice claim was reversed.

In Hawthorne v. Morgan & Morgan Nashville, PLLC, No. W2021-01011-COA-R3-CV, 2022 WL 4298184 (Tenn. Ct. App. Sept. 19, 2022), plaintiff represented a proposed class bringing claims for legal malpractice and breach of fiduciary duty against defendant attorneys based on defendant attorney’s representation of plaintiff class in a previous class action. The previous class action surrounded several funeral homes that had allegedly “wrongfully abandoned the remains of the class’s deceased loved ones at the cemetery.” (internal citations omitted). In this case, plaintiff alleged that defendants committed legal malpractice and breach of fiduciary duty in the previous case by ignoring reasonable settlement offers, rejecting settlement offers for illogical reasons, and failing to communicate settlement offers to the class representative.

Defendants filed a motion to dismiss, which the trial court granted with little explanation. The trial court apparently concluded that “even accepting [plaintiff’s] allegations as true, and giving the Plaintiff the benefit of all reasonable inferences from these facts, such facts and inferences did not give rise to a legal claim.” On appeal, this dismissal was reversed.

Where defendant attorneys filed an affidavit stating that they had complied with the applicable standard of care, and plaintiff failed to respond with any expert evidence contradicting this affidavit in support of his legal malpractice claim, summary judgment was affirmed.

In Grose v. Kustoff, No. W2021-00427-COA-R3-CV, 2022 WL 2347798 (Tenn. Ct. App. June 29, 2022), plaintiffs had previously been represented by defendants in a wrongful death case concerning plaintiffs’ mother. During that case, plaintiffs and defendants had a disagreement regarding the direction of the case, and defendants moved to withdraw as counsel, which was granted. More than a year later, plaintiffs filed this pro se legal malpractice claim against defendants.

After a motion to dismiss was granted, appealed, and vacated on appeal, defendants filed a motion for summary judgment. In support of this motion, defendant David Kustoff filed his own affidavit stating that “he and his late father had complied with the applicable standard of care at all times” in the underlying representation. Plaintiffs responded to the motion, but failed to include any expert affidavit or other expert opinion in the response. The trial court granted summary judgment to defendants, and the ruling was affirmed on appeal.


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.

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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.

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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.

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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:

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