Day on Torts
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.
To prove a legal malpractice claim, a plaintiff must show that defendant attorney breached a duty. “The courts of this state have repeatedly held that except in case of clear and palpable negligence, determining whether an attorney’s conduct complies with the applicable standard of care is beyond the common knowledge of lay persons and requires expert proof.” (internal citations and quotation omitted). Here, defendant’s affidavit “effectively negated an essential element of [plaintiff’s] legal malpractice claim, establishing by expert proof that no breach of duty occurred.” (internal citation omitted). Plaintiff “filed no attorney affidavits or other expert proof in response to demonstrate that the standard of care had been breached.”
Plaintiff asserted that the trial court erred by relying on defendant’s own affidavit, but the Court quickly rejected this argument, noting that “as a practicing attorney, [defendant] was qualified to attest to the standard of care in this action.” The Court also rejected plaintiff’s argument that it should consider a pleading filed by counsel for the insurance company in the wrongful death action referencing overdue discovery responses, stating that “this pleading does not constitute sufficient proof because it does not contain an opinion from a legal expert that Defendants’ conduct fell below the applicable standard of care in the representation of [plaintiff].”
Because plaintiff failed to respond to defendant’s expert affidavit and the affidavit negated an essential element of the claim, summary judgment was affirmed. This pro se case is a reminder that almost all legal malpractice claims must be supported by expert proof.
This opinion was released five months after oral arguments in this case.
Note: Chapter 64, Section 1 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision. Because this case addressed an issue that had not previously been expressly addressed in Tennessee law, a new section was added.
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