Joseph Barna v. Preston Law Group, P.C. - Concurring ( 2009 )


Menu:
  •                   IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    July 8, 2009 Session
    JOSEPH BARNA v. PRESTON LAW GROUP, P.C., ET AL.
    Appeal from the Circuit Court for Davidson County
    No. 07C-580     Joe P. Binkley, Jr., Judge
    No. M2008-02560-COA-R3-CV - Filed August 25, 2009
    PATRICIA J. COTTRELL, P.J., M.S. concurring.
    I write separately because, while I agree with the result of the majority opinion, I disagree as
    to which element of the plaintiff’s claim was not negated by the defendant moving party.
    Mr. Preston’s affidavit stated that he was familiar with the applicable standard of care and
    that he did not breach that standard. Similar statements have been found sufficient to shift the
    burden of production of evidence to the plaintiff nonmoving party in a number of medical
    malpractice and legal malpractice cases. Even if those statements, standing alone, are considered
    conclusory opinions, Mr. Preston’s affidavit goes further. It includes a number of factual statements
    regarding actions he took in representing Mr. Barna. I do not think it is necessary that he address
    every allegation in the complaint, only that he present evidence to shift the burden to the plaintiff to
    come forward with contradicting evidence material to the legal claims presented so as to create a
    dispute of fact. I would find that the defendant met that burden.
    With regard to the element of causation, however, the defendant did not present evidence to
    shift the burden of production to the plaintiff. The requirement for proving causation in this type of
    suit is well-settled.
    When a legal malpractice claim is based on the negligent handling of litigation that
    results in an adverse judgment or a dismissal of a claim, the plaintiff must prove that
    it would have prevailed in the underlying action had it not been for the negligent
    conduct of its lawyer. Shearon v. Seaman, 198 S.W.3d at 214; Gay & Taylor, Inc. v.
    Am. Cas. Co. of Reading, Pa., 53 Tenn.App. 120, 125, 
    381 S.W.2d 304
    , 306
    (1964).FN2 Accordingly, a plaintiff bringing a legal malpractice action must prove
    a case-within-a-case. Viar v. Palmer, No. W2004-02080-COA-R3-CV, 
    2005 WL 1606067
    , at *4 (Tenn.Ct.App. July 6, 2005) (No Tenn. R.App. P. 11 application
    filed); Bruce v. Olive, 
    1996 WL 93580
    , at *3. In the first case, the plaintiff must
    prove that its lawyer's conduct fell below the applicable standard of care. In the
    second case, the plaintiff must prove that it had a meritorious claim or remedy that
    it lost or that it was found liable when it should not have been due to its attorney's
    negligence. See Mihailovich v. Laatsch, 
    359 F.3d 892
    , 904-05 (7th Cir.2004).
    FN2. See also Jessup v. Tague, No. E2002-02058-COA-R3-CV, 
    2004 WL 2709203
    , at *3 (Tenn.Ct.App. Nov. 29, 2004) (No Tenn. R.App.
    P. 11 application filed); Bruce v. Olive, No. 03A01-9509-CV-00310,
    
    1996 WL 93580
    , at *3-4 (Tenn.Ct.App. Mar. 4,1996) (No Tenn.
    R.App. P. 11 application filed).
    Austin v. Sneed, No. M2006-00083-COA-R3-CV, 
    2007 WL 3375335
    , at *5 (Tenn. Ct. App. Nov.
    13, 2007).
    In his affidavit, Mr. Preston did not provide any factual statements to prove that Mr. Barna
    would not have prevailed in the arbitration regardless of any alleged negligence on Mr. Preston’s
    part. The only statements in the affidavit regarding causation were:
    Anything that I did, or allegedly failed to do, in representing Mr. Barna did not cause
    or will not cause Mr. Barna to incur any injury or damages. Any injury or damages
    allegedly suffered by Mr. Barna were not caused by any negligent act or omission on
    my part.
    These are conclusory assertions, and no facts were produced to support these conclusions or
    to show that Mr. Barna would not have prevailed in the arbitration absent any negligence on the part
    of Mr. Preston.
    Accordingly, I agree that the motion for summary judgment should not have been granted,
    but my conclusion rests on the defendant’s failure to negate a different element of the plaintiff’s
    claim.
    ____________________________________
    PATRICIA J. COTTRELL, P.J., M.S.
    -2-
    

Document Info

Docket Number: M2008-02560-COA-R3-CV

Judges: Judge Frank Clement, Jr.

Filed Date: 8/25/2009

Precedential Status: Precedential

Modified Date: 10/30/2014