Articles Posted in Legal Malpractice

Proof related to potential damages alone are insufficient to sustain a legal malpractice claim in Tennessee.

In Cox v. Vaughan, No. E2023-00930-COA-R3-CV (Tenn. Ct. App. April 10, 2024) (memorandum opinion), plaintiff filed a legal malpractice claim against defendant attorney. Plaintiff and defendant previously contracted for defendant to represent plaintiff in claims related to an automobile accident. Defendant never filed any claim and avoided communicating with plaintiff. After plaintiff filed a complaint with the Board of Professional Responsibility, defendant returned plaintiff’s retainer fee.

Plaintiff subsequently filed this legal malpractice suit, alleging that she suffered damages due to defendant’s failure to follow through on her case. Defendant moved for summary judgment. He asserted that, pursuant to the representation agreement, the scope of his representation of plaintiff was limited to “claims against GMC for breach of contract of implied and express warranties.” Because the statute of limitations for such claims is six years, defendant argued that the claims still existed and plaintiff suffered no damage.

Where the substance of a complaint sounded in legal malpractice, and the complaint was filed more than one year after plaintiff should have been aware that he had been injured by the alleged negligence, judgment on the pleadings for defendants was affirmed.

In Houbbadi v. Kennedy Law Firm, PLLC, No. M2022-01166-COA-R3-CV (Tenn. Ct. App. Jan. 9, 2024), plaintiff filed a complaint against the law firm and lawyers that had previously represented him in a divorce and order of protection proceeding. In his complaint, plaintiff asserted that defendants defrauded plaintiff when he hired them, failed to represent plaintiff in good faith, and agreed to a continuance when they should not have. Plaintiff argued that defendants’ failure to move for him to have exclusive possession of the marital residence led to him returning to the house and murdering his wife.

The trial court granted defendants judgment on the pleadings, ruling that to the extent plaintiff claimed breach of contract and fraud, those claims were not pled with sufficient particularity, and to the extent he claimed legal malpractice, the claim was time barred. The ruling for defendants was affirmed on appeal.

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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