Articles Posted in Legal Malpractice

The Tennessee Court of Appeals recently ruled that public policy did not prevent an insurance company from bringing a legal malpractice claim against its insured’s attorney as the subrogee of the insured.

In Westport Insurance Corporation v. Howard Tate Sowell Wilson Leathers & Johnson, PLCC, No. M2023-01168-COA-R3-CV (Tenn. Ct. App. Sept. 18, 2024), plaintiff was the insurance carrier for a company called Brands. A truck driver’s Kentucky-based employer hired Brands to perform a driver history report before hiring the driver. Brands pulled three years of driving records and reported that the record was clean. Had they pulled five years, however, they would have found the driver’s accident history. The driver was hired by the company and was later involved in a serious car accident in Tennessee.

Multiple lawsuits were filed in relation to this car accident, and Brands was named as a defendant. Plaintiff insurance company was Brands’ liability insurance carrier. Plaintiff hired defendant law firm to represent Brands in the underlying suits, and defendant agreed to abide by Plaintiff’s litigation guidelines. At one point an attorney from defendant firm performed initial research into the defense of lack of personal jurisdiction, but that research was abandoned, as the attorney believed it was not a viable defense. Defendant never discussed the personal jurisdiction defense with plaintiff or Brands. Defendant eventually filed a motion to dismiss based on lack of duty. Defendant advised Brands that if the motion was not granted, settlement was advised.

In a legal malpractice case where one of plaintiffs’ own experts admitted that the law regarding a certain type of tax liability was unsettled at the time defendant attorneys advised plaintiffs, the jury verdict for defendant was upheld.

In Estate of Hawk v. Chambliss, Bahner & Stophel P.C., No. E2022-01420-COA-R3-CV (Tenn. Ct. App. July 31, 2024), plaintiffs filed a legal malpractice claim against defendants related to certain tax advice. In 2003, defendants advised plaintiffs during a transaction related to the sale of the assets of two bowling alleys. A company called MidCoast Investments expressed interest in purchasing the assets, and it claimed to have a way to save plaintiffs from being liable for certain taxes related to the transfer.

In a letter to plaintiffs, defendants stated that MidCoast appeared to be legitimate and that it had conducted many similar transactions. This letter suggested obtaining financial information in order to negotiate a letter of intent.

Plaintiff’s legal malpractice claim accrued when he received the order stating that some of his claims in a previous case were dismissed with prejudice.

In Abdou v. Clark, No. M2023-01461-COA-R3-CV (Tenn. Ct. App. July 3, 2024), plaintiff hired defendants to represent him in a lawsuit against several individuals. During the course of that litigation, plaintiff grew unhappy with defendants’ actions on his behalf. Plaintiff terminated defendants as his attorneys in July 2022, and he filed this pro se legal malpractice claim in February 2023. The trial court dismissed the legal malpractice action based on the statute of limitations, and the Court of Appeals affirmed dismissal.

In its opinion, the Court of Appeals reviewed multiple allegations on which plaintiff’s legal malpractice claim was based. First, it affirmed dismissal of plaintiff’s claim that defendants violated a Rule of Professional Conduct, noting that the Rules of Professional Conduct do not provide a basis for civil liability.

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.