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Articles Posted in Legal Malpractice

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.

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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.

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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.”

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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.”

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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.

When a plaintiff files a motion to set aside a final order granting summary judgment, he must “demonstrate that [he] had a meritorious defense” in such motion.

In Berge v. Warlick, No. M2018-00767-COA-R3-CV (Tenn. Ct. App. Jan. 3, 2019), plaintiffs filed a legal malpractice claim against defendant. Defendant filed a motion for summary judgment, and he sent a copy of the motion to plaintiffs’ attorney on September 7, along with a notice that it was scheduled for hearing on October 20, 2017. Plaintiffs never responded to the motion, and on the day a response was due, defendant sent a second copy of the motion to plaintiffs’ attorney via U.S. mail and email. Neither plaintiffs nor their attorney showed up for the hearing, and they did not respond to a proposed order granting summary judgment sent by defendant.

Twenty-eight days after the order was entered, plaintiffs filed a “Motion to Set Aside” pursuant to Tennessee Rule of Civil Procedure 59.04. Plaintiffs asserted that they were entitled to relief due to the excusable neglect of plaintiffs’ counsel, who stated that “he misplaced the motion and forgot to mark the hearing on his calendar.” The trial court denied the motion to set aside, and the Court of Appeals affirmed.

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Where a plaintiff has signed a settlement agreement swearing that such agreement is “fair and equitable,” she may be judicially estopped from later bringing a legal malpractice claim based on that same settlement.

In Kershaw v. Levy, No. M2017-01129-COA-R3-CV (No. M2017-01129-COA-R3-CV), plaintiff filed a legal malpractice claim against defendant attorney who had previously represented her during part of her divorce proceedings. When defendant took her case, plaintiff had already been convicted of criminal contempt once in the divorce case for incurring marital debt for gambling money, and she had a pending criminal contempt petition for forging checks to get gambling money. Further, her discovery responses were overdue. After defendant took the case, he drafted a response to the contempt motion wherein plaintiff admitted that she took the money, and she was sentenced to 30 days in jail, though she was released when defendant filed an appeal three days later.

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In most legal malpractice cases, a plaintiff will need expert proof regarding the applicable standard of care.

In Elaster v. Massey, No. E2017-00020-COA-R3-CV (Tenn. Ct. App. Feb. 22, 2018), plaintiff filed a pro se legal malpractice case against two attorneys who had previously represented her in a workers’ compensation claim. Plaintiff claimed that defendants had settled her workers’ comp claim without informing her, and that they had generally “failed to adequately represent her in the workers’ compensation case.”

Defendants filed a motion for summary judgment, supported by their own affidavits stating that they had “complied with all relevant standards of care in their representation of [plaintiff].” In support of their motion, defendants filed a statement of undisputed material facts, which stated that plaintiff’s workers’ compensation claim was “disputed and doubtful,” and that even though they had negotiated a settlement in that case, plaintiff repudiated and the case was never actually settled. In response to the motion, plaintiff “admitted that no settlement agreement was ever finalized, that she never entered into any settlement agreement with her former employer, that no settlement funds were ever paid, and that both [defendants] were familiar with the standard of care required in the underlying workers’ compensation case.” Importantly, plaintiff “cited only to her complaint” in responding to the summary judgment motion, and presented no expert proof that defendants’ conduct fell below the standard of care.

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