Miltier v. Holly et al
Filing
84
MEMORANDUM OPINION AND ORDER: Based upon the foregoing reasons, it is hereby ORDERED that the Motion for Summary Judgment filed by the defendants is GRANTED, [Doc. 24], and the plaintiffs complaint is DISMISSED. See order for details. Signed by District Judge J Ronnie Greer on 6/12/2013. c/m(RLC, )
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
JESSE R. MILTIER III,
Plaintiff,
v.
HOLLY & HOLLY, PLLC, JASON L.
HOLLY and TRAVIS B. HOLLY,
individually,
Defendants.
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NO: 2:12-CV-71
MEMORANDUM OPINION AND ORDER
This legal malpractice matter is before the Court to address the motion for summary
judgment filed by the defendants Holly & Holly, PLLC, Jason Holly, and Travis B. Holly. [Doc. 24].
The plaintiff contends that the defendants are guilty of legal malpractice because they failed to
move to amend the ad damnum to plaintiff’s complaint in Jesse Miltier v. Bank of America, et al.,
Docket No. C-9814 in Carter County Circuit Court, thus, causing the verdict in that case to be
reduced by $550,000.00. The defendants contend that they are entitled to summary judgment based
upon the statute of limitations, upon accord and satisfaction/ the Rooker-Feldman doctrine, and
because the plaintiff does not have expert testimony in regard to the appropriate standard of care for
attorneys such as Jason Holly and Travis B. Holly. The plaintiff has filed a response to this motion,
[Doc. 33], and this matter has been briefed. On April 23, 2013, plaintiff’s counsel was permitted
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to withdraw, and in open court the plaintiff elected to proceed pro se. [Doc. 71].1 The pro se
plaintiff was given up to and including May 10, 2013, to supplement his response to the defendants’
motion for summary judgment, and his response to the defendants’ statement of undisputed material
facts. However, the pro se plaintiff has not filed a supplement of any kind. This motion is now ripe
for disposition.
Based upon the undisputed facts in this case and the affidavit of the plaintiff, the Court finds
that the Motion for Summary Judgment filed by the defendants is well-taken as to the statue of
limitations defense, the accord and satisfaction defense and because plaintiff has no expert testimony
as to the applicable standard of care for attorneys. Therefore, the plaintiff’s complaint will be
dismissed.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted if
"the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). To prevail, the moving party
must meet the burden of proving the absence of a genuine issue of material fact as to an essential
element of the opposing party's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Logan v. Denny's, Inc., 259 F.3d 558, 566 (6th Cir.2001).
1
On October 18, 2012, after the Court denied plaintiff’s motion to amend his disclosures to give late notice
of an expert witness, plaintiff filed a motion to voluntarily dismiss his case without prejudice, which would potentially
have allowed him to start over with his lawsuit with the necessary expert witness. At the hearing before the Magistrate
Judge on April 23, 2013, the plaintiff “was given the opportunity to voluntarily dismiss his suit without prejudice but,
even after being advised that a dismissal without prejudice would cure every current deficiency with the existing suit,
he emphatically stated his desire to proceed on with the litigation” and withdraw his motion for a voluntary dismissal,
[Doc. 71].
2
In determining whether the moving party has met its burden, the court must view the factual
evidence and draw all reasonable inferences in the light most favorable to the non-moving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); McLean v. 988011
Ontario, Ltd., 224 F.3d 797, 800 (6th Cir.2000). "The court's function is not to weigh the evidence
and determine the truth of the matters asserted, 'but to determine whether there is a genuine issue
for trial.' " Little Caesar Enters., Inc. v. OPPCO, LLC, 219 F.3d 547, 551 (6th Cir.2000) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
If the non-moving party fails to make a sufficient showing on an essential element of the
case with respect to which he has the burden, however, the moving party is entitled to summary
judgment as a matter of law. See Williams v. Ford Motor Co., 187 F.3d 533, 537-38 (6th Cir.1999).
To preclude summary judgment, the non-moving party "must go beyond the pleadings and come
forward with specific facts to demonstrate that there is a genuine issue for trial." Chao v. Hall
Holding Co., Inc., 285 F.3d 415, 424 (6th Cir.2002).
II. UNDISPUTED FACTS
1. Jesse R. Miltier III (hereinafter "Plaintiff") is a former client of the defendants and
currently resides in Colorado.
2. Holly & Holly is a professional limited liability company who formerly represented Mr.
Miltier.
3. Jason Holly, an attorney, formerly represented Mr. Miltier.
4. Travis B. Holly, an attorney, formerly represented Mr. Miltier.
5. This is a legal malpractice action arising out of Plaintiff Miltier’s underlying case against
Bank of America.
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6. Plaintiff’s complaint in that case was drafted and filed by his attorneys at the time, the
law firm of Cowan & Longstreet.
7. That firm included in the complaint a demand for compensatory damages in the amount
of $200,000.00.
8. Defendants were later hired to take over representation of Miltier.
9. At trial, Miltier was able to prove special damages of $183,402.21.
10. Plaintiff never asked that Defendants seek leave to amend the complaint, so as to increase
the amount demanded.
11. Defendants did seek to amend the complaint on one occasion, for a different reason.
Leave to amend was denied by the trial judge.
12. The underlying case against Bank of America was tried on July 28-31, 2009. The jury
returned a verdict in favor of Miltier, and identified the following damages on the special
verdict form:
a. $350k for out-of-pocket damages due to the foreclosure;
b. $100k for out-of-pocket damages due to the litigation with Bank of America;
c. $150k for emotional distress damages due to the foreclosure;
d. $150k for emotional distress damages due to the litigation with Bank of America;
and
e. $300k for punitive damages.
13. In post-trial motions, the damages for items (b) and (d) were disallowed by the judge as
a matter of law.
14. Item (a), expenses due to Bank of America’s wrongful foreclosure, was reduced by the
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court to the amount shown by evidence at trial, or $183,402.21.
15. Item (c), the award for emotional distress damages due to Bank of America’s wrongful
foreclosure, was reduced from the jury’s award of $150,000, to the difference between the expenses
proven and the amount of the ad damnum clause, i.e. $200,000 - $183,406.21 = $16,593.79.
16. The punitive damage award was upheld.
17. As a result, the remaining award was as follows:
a. $183,406.21 for out-of-pocket damages due to the foreclosure;
b. $16,593.79 for emotional distress damages due to the foreclosure; and
c. $300k for punitive damages.
18. The reduction in damages for emotional distress due to the foreclosure (item (c) in # 9)
was the only reduction in the jury’s verdict due to the ad damnum clause.
19. The court’s ruling in which it reduced Miltier’s damages was issued from the bench on
November 16, 2009, in open court, with Miltier present.
20. The court’s ruling was also reduced to writing, filed on December 15, 2009, and
promptly provided to Miltier.
21. This action was filed on February 28, 2012.
22. In Paragraph 10 of his affidavit, Travis Holly states:
In sum, there are four factors that, in my opinion as a practicing and
experienced litigation attorney in Tennessee, impacted the standard
of care applicable to a decision whether to seek amendment of the ad
damnum clause: (1) Miltier’s knowledge that he was limited by the
amount of the ad damnum clause and failure to suggest or request
that it be changed; (2) his lack of interest in anything but punitive
damages;2 (3) our inability to prove special damages in excess of
$183,402.61; and (4) a judge who appeared disinclined to allow
amendments. In light of these factors, it is my opinion that our
conduct in not seeking amendment of the ad damnum complied with
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the standard of care applicable to attorneys practicing law in
Tennessee. It is my opinion that we did not, in any way, breach the
standard of care applicable to our handling of the case.
23. In his affidavit, the plaintiff states:
13. When I received the written JUDGMENT of the Tennessee
Court of Appeals, which stated Jesse Miltier had failed to modify the
original Complaint and had failed to object to matters addressed at
the November 16th, 2009, hearing, I realized HOLLY & HOLLY,
PLLC, had failed to represent my best interest, for which they were
being paid to do, as Attorneys of Law.
24. In 2011, attorney Mark Freeman, plaintiff’s attorney in this lawsuit, began to represent
Miltier in litigation over the issue of the attorney’s fee that was due to defendants for their
representation of Miltier in the underlying case against Bank of America.
25. Miltier objected to certain fees and expenses sought by the defendants. Miltier filed a
document in opposition to the disputed fees and expenses entitled “Affidavit of Jesse Miltier in
Opposition to Certain Portions of the Lien of Holly & Holly,” in which he stated, in part:
•
“[T]he Court of Appeals deemed that nothing was done to modify the original
complaint, which resulted in my not receiving $550,000 awarded in compensatory damages.”
•
“[T]here was no noteworthy reason for the failure of Holly & Holly to modify the
original complaint.”
26. Pursuant to their fee agreement with Miltier, Holly & Holly were entitled to thirty
percent of the $500,000 damage award for their work in the trial court, plus an additional five
percent for their appellate work.
27. The dispute over attorney’s fees and expenses was ultimately settled by Miltier and the
defendants and their settlement agreement, in the form of an agreed order, was filed in the Carter
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County Circuit Court on August 15, 2011. The defendants agreed to a reduction of their fee to thirty
percent. The Agreed Order, signed by Miltier states: “This Order resolves any and all issues that
were or could have been raised concerning the Petition to Enforce Attorney’s Lien previously filed
by this Petitioner.” 2
III. PROCEDURAL BACKGROUND RE: EXPERT WITNESS
On May 9, 2012, this court filed its Scheduling Order,[Doc. 9], in which the court scheduled
the trial of this case for May 21, 2013; set an expert disclosure deadline for the plaintiff of
September 14, 2012, and one for the defendants for November 2, 2012; and set a dispositive motion
deadline of November 15, 2012. Plaintiff’s motion to extend the deadline for disclosing his expert
witnesses was filed on October 12, 2012, nearly a month after his deadline for disclosing those
experts had passed. [Doc.18]. In an order dated October 18, 2012, the Magistrate Judge denied the
plaintiff’s motion to extend his expert disclosure deadline. [Doc. 23]. The Magistrate Judge found
that this extension would prejudice the defendants, because the dispositive motion deadline was
November 15, 2012, and identifying those experts belatedly would deprive defendants of the
opportunity to address those experts in any motion for summary judgment. The plaintiff filed an
appeal of this order; however, the Magistrate Judge’s order was affirmed by this Court. [Doc. 73].
On April 5, 2013, the plaintiff filed a motion for a continuance, in part, asserting that he
2
In plaintiff’s response to defendants’ statement of undisputed facts in support of the motion for summary
judgment, [Doc. 41], the plaintiff failed to submitted a “concise statement of any additional facts that the non-moving
party contends are material and as to which the nonmoving party contends there exists a genuine issue to be tried, with
each such disputed fact to be set forth in a separate, numbered paragraph with specific citations to the record supporting
the contention that such fact is in dispute” as required by the Court’s scheduling order in this case, [Doc. 9], and as
required by the Court’s Show Cause Order dated April 2, 2013. [Doc. 40].
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needed additional time to retain an expert 3 to testify in this case. The plaintiff also asked that the
expert disclosure deadline be extended as well as the trial date itself. On April 9, 2012, the
Magistrate Judge denied the request for a continuance and the request for an extension of the expert
disclosure deadline finding that the plaintiff had had ample opportunity to obtain an expert, and he
had not done so. [Doc. 57]. The plaintiff filed an appeal of this order, and the Magistrate Judge’s
order was affirmed by this Court. [Doc. 74]. This Court noted that plaintiff’s request to extend the
expert disclosure deadline:
1. Came more than seven (7) months after the original expert disclosure deadline for the
plaintiff of September 14, 2012;
2. Came more than six (6) months after his first request to extend the expert disclosure
deadline was denied on October 18, 2012;
3. Came more than six (6) months after defendant’s motion for summary judgment was filed
on October 18, 2012, alleging in part that summary judgment should be granted because the plaintiff
had no expert to establish the standard of care; and
4. Came less than seven (7) weeks before the trial in this case which was scheduled for May
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On April 27, 2013, plaintiff filed a pro se response, [Doc. 68], to defendants’ motion in limine, [Doc. 45],
to preclude plaintiff from introducing evidence that defendants breached the standard of care except through expert
testimony. Plaintiff’s response asserts that his now former attorney, Mark T. Freeman, had identified attorney James
D. Kay, Jr., of Kay, Griffin, Eukema & Brothers, PLLC, to be an expert witness to testify as to the applicable standard
of care.
Plaintiff filed an amended response, [Doc. 75], to the motion in limine on May 31, 2013. In that amended
response, plaintiff asserted that he had traveled to Nashville, Tennessee, on May 13, 2013, to meet with attorney James
D. Kay, Jr., “who stated he knew nothing of this case, and he had never been contacted by attorney Mark Freeman to
consider acting as an expert witness in this case, [Id. at 2]. Plaintiff states that he was advised by Kay that “attorney
Mark Freeman’s negligence in the case is grounds for legal malpractice,” [Id.]
These are very disturbing accusations which, unfortunately for plaintiff, must be presented through a legal
malpractice or other claim against Mark Freeman in an appropriate court or through the filing of a complaint with the
Tennessee Board of Professional Responsibility.
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21, 2013.
IV. ANALYSIS
A.
Statute of Limitations
In Tennessee, legal malpractice claims are subject to a one year statute of limitations
and must be filed within one year from the time the cause of action accrues. Tenn. Code Ann. § 283-104(a)(2). When a cause of action accrues is determined by the discovery rule. John Kohl & Co.,
P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998). Under the discovery rule, “a cause
of action accrues when the plaintiff knows or in the exercise of reasonable care and diligence should
know that an injury has been sustained as a result of wrongful or tortious conduct by the defendant.”
Id. (citing Shadrick v. Coker, 963 S.W.2d 726, 733 (Tenn. 1988); Stanbury v. Bacardi, 953 S.W.2d
671, 677 (Tenn. 1997)). In a legal malpractice case, the discovery rule is composed of two elements:
(1) the plaintiff must suffer “legally cognizable damage,” meaning an actual injury, as a result of the
defendant’s wrongful or negligent conduct, and (2) the plaintiff must have known, or in the exercise
of reasonable diligence should have known, that this injury was caused by the defendant’s wrongful
or negligent conduct. Id.
An actual injury occurs when a client suffers the loss of a legal right, remedy or
interest, or the imposition of a liability. Kohl, 977 S.W.2d at 532. When some injury is known, a
plaintiff may not delay filing suit until all the injurious effects or consequences of the alleged wrong
are actually known to the plaintiff. Id. at 533. When any damages become apparent, the statute
begins to run even though the amount may be small in comparison to the amount of damages
eventually suffered. Denley v. Smith, 1989 WL 738 at *4 (Tenn. Ct. App. Jan. 9, 1989).
“The knowledge component of the discovery rule may be established by evidence
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of actual or constructive knowledge of the injury.” Kohl, 977 S.W.2d at 532 (citing Carvel v.
Bottoms, 900 S.W.2d 23, 29 (Tenn. 1995)). The statute begins to run whenever the plaintiff
becomes aware or reasonably should have become aware of facts sufficient to put a reasonable
person on notice that an injury has been sustained as a result of the defendant’s negligent or
wrongful conduct. Id. There is no requirement that the plaintiff actually know the specific type of
legal claim he or she has, or that the injury constituted a breach of the appropriate legal standard.
Id. (citing Shadrick, 963 S.W.2d at 733)). Instead, “the plaintiff is deemed to have discovered the
right of action if he is aware of facts sufficient to put a reasonable person on notice that he has
suffered an injury as a result of wrongful conduct.” Id. (quoting Carvel, 900 S.W.2d at 29). It is
knowledge of facts sufficient to put a plaintiff on notice that “an injury has been sustained” that is
crucial. Id. “The discovery rule was not meant to allow a party to delay filing his claim until after
he has completed the process of discovering all the factors that effect its merits.” Burk v.
RHA/Sullivan, Inc., 2006 WL 2805197, at *6 (Tenn. Ct. App. Oct. 2, 2006).
The essence of Miltier’s complaint here is that defendants were negligent by failing
to move to amend the ad damnum clause in his complaint, resulting in the reduction of the jury’s
verdict. See [Doc. 1]. Defendants argue that Miltier knew of his injury not later than November 16,
2009, the date of the state court’s post-verdict ruling from the bench reducing the amount of the
award, at least in part, on the basis of the ad damnum clause. See [Doc. 25-3 at 57, ll. 16-21; 58, ll.
160-265]. The court’s ruling was reduced to writing, filed on December 19, 2009, and was promptly
provided to Miltier by defendants.
Miltier, on the other hand, argues that he did not suffer legally cognizable injury until
he became aware “that defendants had committed legal malpractice” when he read the final
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judgment of the Court of Appeals on his appeal of the trial court’s verdict. See Miltier v. Bank of
America, 2011 WL 1166746 (Tenn. Ct. App. March 30, 2011). Miltier argues, therefore, that the
statute of limitation in this case began to run on the date of the Court of Appeals’ order, not on the
date of the trial court’s oral or written order.
“[T]he most easily identifiable time when rights, interests and liabilities become fixed
is when a court enters judgment. A judgment, after all, is ‘an adjudication of the rights of the parties
in respect to the claim[s] involved.’” Cherry v. Williams, 36 S.W.3d 78, 84 (Tenn. Ct. App. 2000)
(quoting Ward v. Kenner, 37 S.W. 707, 709 (Tenn. Ch. App. 1896)). The entry of an adverse
judgment or order is “the starter pistol for the running of the statute of limitations on litigation
malpractice.” Id. at 84-85 (citing Laird v. Blacker, 2 Cal. 4th 606, 7 Cal. Rpt. 2d 550, 828 P.2d 691,
696 (1992)). It is the court’s judgment that decrees the loss of a right or remedy or imposes a legal
liability. Id. Tennessee courts have repeatedly rejected Miltier’s argument that there is no legally
cognizable injury until an appeals court passes on the judgment of the trial court. In Tennessee, the
statute of limitations is not tolled during the pendency of an appeal. Cherry, 36 S.W.3d at 85;
Carvel, 900 S.W.2d at 29; Brabson Mercantile, Inc. v. Crabtree, 1 S.W.3d 648 (Tenn. Ct. App.
1999); Wilkins v. Dodson, Parker, Shipley, Behm, & Seaborg, 995 S.W.2d 575, 580-81 (Tenn. Ct.
App. 1998).
The Court must agree with defendants on this issue. The failure to amend the ad
damnum clause, or any other alleged negligence of the defendants resulting in a reduction in the
jury’s verdict, which forms the basis for the alleged negligent conduct occurred prior to the hearing
on November 16, 2009. Miltier knew of this negligence no later than November 16, 2009, and his
rights became fixed no later than the entry of the Court’s order on December 19, 2009. Miltier’s
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cause of action thus accrued no later than December 19, 2009. This action, filed February 28, 2012,
is clearly barred by the one year statute of limitations of Tennessee Code Annotated § 28-3104(a)(2).
B.
Accord and Satisfaction
According to Tennessee’s long-standing definition of accord and satisfaction:
An accord is an agreement whereby one of the parties undertakes to
give or perform, and the other to accept in satisfaction of a claim,
liquidated or in dispute, and arising either from the contract or from
tort, something other than or different from what he is or considers
himself entitled to; and a satisfaction is the execution of such
agreement.
Scipio v. Sony Music Entertainment, Inc., 173 Fed. App’x 385, 2006 WL 527062 (6th Cir. March
3, 2006) (quoting Lytle v. Clopton, 261 S.W. 664 (Tenn. 1994)). The party asserting the defense of
accord and satisfaction has the burden of proving its existence by a preponderance of the evidence.
Ward v. Wilkinson, 1999 WL 221843, at *1 (Tenn. Ct. App. April 19, 1999). “An accord and
satisfaction is established by the intentions of the parties at the time of the transaction” and the issue
is generally a question of fact unless the evidence is insufficient to submit the case claim to the jury.
Helms v. Weaver, 770 S.W.2d 552, 553-54 (Tenn. Ct. App. 1989). It is clear to the Court that
Miltier and the defendants in this case entered into an agreement, filed with the Court on August 25,
2011, which constituted an accord and satisfaction of both the defendant’s claims for attorney’s fees
and Miltier’s claims for legal malpractice.
In 2011, the defendants filed a petition in the Carter County Circuit Court to enforce
their lien for attorney’s fees against the $500,000 awarded to Miltier and paid by Bank of America.
Miltier, represented by the same counsel who later filed the instant malpractice action, responded
to the petition by filing his affidavit on August 11, 2011. In that affidavit, Miltier disputed certain
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expenses claimed by the defendants and specifically objected to attorney’s fees associated with the
appeal “as there was no noteworthy reason for the failure of Holly & Holly to modify the original
complaint.” Among the expenses disputed by Miltier were those for expert witnesses related to
proving emotional damages “when the Court of Appeals deemed that nothing was done to modify
the original complaint, which resulted in my not receiving $550,000 awarded in compensatory
damages.” The parties then reached a settlement agreement as to defendants’ petition. The
agreement contained the following language: “This order resolves any and all issues that were or
could have been raised concerning the Petition to Enforce Attorney’s Lien previously filed by [Holly
& Holly, PLLC].” (Emphasis added).
It is thus clear that Miltier disputed the defendants’ right to receive attorney’s fees pursuant
to their contract with him on the basis that they had committed the very same acts of negligence
about which he complains in this case. He also objected on the basis of certain expenses which form
the basis of his damages calculations in this very case. At that time, August, 2011, Miltier was fully
aware of all of his claims of malpractice, including any he might have been alerted to by the Court
of Appeals opinion on March 30, 2011. In other words, Miltier raised the alleged legal malpractice
of the defendants as a defense to their request for attorneys’ fees and subsequently entered into an
agreement which resolved “any and all” of the issues between these parties “that were or could have
been raised.” The language is clear. All means all, and defendants are entitled to summary
judgment on this issue as well.
C.
Lack of Expert Proof of Negligence
To establish a legal malpractice claim under Tennessee law, the plaintiff must prove:
(1) that the accused attorney owed a duty to the plaintiff,
(2) that the attorney breached that duty,
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(3) that the plaintiff suffered damages,
(4) that the breach was the cause in fact of the plaintiff's
damages, and
(5) that the attorney's negligence was the proximate, or legal,
cause of the plaintiff's damages.
Gibson v. Trant, 58 S.W.3d 103, 108 (Tenn. 2001). It is well-settled law that, “[i]n a legal
malpractice action, expert testimony is required to establish negligence and proximate cause unless
the alleged malpractice is within the common knowledge of laymen.” Rose v. Welch, 115 S.W.3d
478, 484 (Tenn.Ct.App.2003). Only in cases involving “clear and palpable negligence” can legal
malpractice be determined without expert testimony. Id. at 484 (quoting Cleckner v. Dale, 719
S.W.2d 535, 540 (Tenn.Ct.App.1986)).
The Tennessee courts have further held that
attorneys' motions practice is “beyond the common knowledge of laymen.” Hutter v. Cohen, 55
S.W.3d 571, 575 (Tenn.Ct.App.2001). In this case, plaintiff’s own affidavit establishes that the
defendants’ failure to move to amend the ad damnum to his state court complaint was “beyond the
common knowledge of laymen” because he states he did not know until he received the Tennessee
Court of Appeals opinion in his case that the defendants were not representing his “best interests.”
Therefore, under Hutter, the plaintiff must produce an expert to establish the standard of care for the
defendants’ motions practice.
In addition, if a defendant-attorney presents expert proof that he or she did not breach the
duty of care, the plaintiff-client must present rebuttal expert proof that a breach of care did occur in
order to create a genuine issue of material fact. Bursack v. Wilson, 982 S.W.2d 341, 343–45
(Tenn.Ct.App.1998). The defendants in this case have presented expert proof that they did not
breach the duty of care by virtue of the affidavit of defendant Travis Holly. Therefore, the plaintiff
must present rebuttal expert proof that a breach of care did occur in order to create a genuine issue
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of material fact. The plaintiff has failed to do so.
Plaintiff’s failure to obtain an expert in a timely manner and failure to seek an extension of
time to obtain an expert in a timely manner meant that he would be unable to establish the standard
of care, and ultimately, that the defendants committed legal malpractice. Under these circumstances,
summary judgment must be granted because plaintiff cannot prove essential elements of his cause
of action, that is, negligence and proximate cause. Thus, the plaintiff has failed to “go beyond the
pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial."
V. CONCLUSION
Based upon the foregoing reasons, it is hereby ORDERED that the Motion for Summary
Judgment filed by the defendants is GRANTED, [Doc. 24], and the plaintiff’s complaint is
DISMISSED.
s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE
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