### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON On-Brie f Novem

ber 19, 200 2 RONALD CRAFTON v. JOHN VAN den BOSCH, JR. A Direct Appeal from the Circuit Court for Madison County No. C-00-241 The Honorable Donald H. Allen, Judge

No. W2002-00679-COA-R9-CV - Filed F ebruary 10, 2003
The appellant, an attorney , was sued by his client for leg al malpra

ctice fo r failur e to file a motion for post- convicti on relief ina criminal matter. Appellant’s Motion for Summary Judgment was deni ed and he

appeals . We affir

m.
Tenn. R. App. P. 9; Interlocutory Appeal; Judgment of the Circuit Court Affirmed
W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which A LAN E. H IGHERS , J. and D AVID R. F ARMER , J., joined. Gregory D. Smith, Clarksville, For Appellant, John Van den Bosch, Jr. No Brief Filed By

Appellee OPINION Ronald Crafton (“Mr. Crafton,” “Plaintiff,” or “Appellee” ) was convicted of raping Cry stal Greer and Dionne Crafton. The conviction was entered on Nove mber 25, 1991 and became final on or about February

16, 1992. Although Mr. Crafton f led for a pproximate

ly f our years, he even

tually filled a pro se petition for post-conviction relief on November 20, 1996. The petition was denied basedin part on

the expira

tion of the

one-y ear sta tute of lim

ita tions. Mr. Crafton then filed a pro se petition for state habeas corpus relief, which wa s also denied.
On July 13, 2000, Mr. Crafton filed a Complaint for Legal Malpra ctice (the “Complaint”) agains tJohn Van den Bosch (“Mr. Van den Bosch,” “ Defendant,” or “Appellant”). This sworn Complaint r

eads, in p ertinen

t part, a s follows:
In 1994, Mr. Van den Bosch, the defend ant was hired by Ron Crafton, through the Reverend Stephen Walker, who delivered a check wrote [sic] by Ron ’s mother, Rebecca Meredith, for $3,0001 Attach ed, as Exhi bit A, to th e Complaint is a c opy of a receipt from John Van den Bosch, Jr. , st atin g that $3,000 was recei ved f

rom Becky Meridet

h [s ic] on Augus t 8, 1994. Thi s i s re ceipt No. 18914.
2 Exh ibit B to the C omp laint is a stat ement f rom the Law Office of Jo hn V an de n B osch to Ro nald C rafton c /o Rebecca Meredith. The stat ement ref lect s the payment of

$3,000, descri bed as a “Ret ainer. ” Additionally, the statement reflects two charg es for “Court Report er,” one i n the amount of $400 and another

for $100. There ar e thre e charges for “Copy fee” in the amo unts of $ 97.5 0, $9 7.50 and $ 27.0 0. Charges f or “Postage ” are l ist ed as $4.10 and $3 .84. The tot al a mountdue i s $729. 94. -2-

dollars. 1 Mr. Van denBosch, t he defe ndant, wa s hired to

prepare and draft a post-conviction motion for the pl ainti ff. The plaintiff provided Mr. Van den Bosch, the defendant, with a recanted statem ent given by the victim...this [statement] was to be used as evidence, a ttached to the postconviction, that the def endant w as supposed to file. Additional statemen

ts, and affidavits were

to be made available to the defendant from various people who was [sic] with the plaintiff at the original ti me th e alleged offense was to ha ve occurred, y

et the defendant stated he never [k]new of these p eople e ven though they calledhis offic e and lef

t messag es, the de

fendant s ta ted he never received them, even though the plaintiff’s mother personally took the names and addresses of these people to the def endant’s office...
* * *
2. The defendant in this ca use re ceived $ 3,000.00 d ollars fo r his service s, and in July or Augus t of 1999, he stated that he could no longer work on the case, and he would talk to another lawy er about the plaintiff’s case. And maybe that lawyer could he lp. Mr. Van den Boschdid nothing

but get s ome tran scrip ts tha t were incomplete, according to his bill he ordered them twice. 2
3. The defendant had in his possession evidence t hat w ould have established the plain

tiff’s a ctual inn ocence . But t

he defe ndant did nothing with this evidence. (A recanted statement from

the victim).
4. The plain

ti ff had hiredthe defendant to prepare and dra ft to the Courta motion for post-conviction relief, withthe attached evidence, which included a statement of recantation from the victim. An additional recant statement was take n from t he victim by the defenda nt in 1995, a

nd he did n othing w ith this sta tement. * * *3 Th e letter, d ated J une 8 , 200 0, rea ds, in p ertinen t part, as follows: “The billing of Ronald Crafton was sent

to y ou by mis tak e due to anew bil li ng c ler k, who di d not

ask me abo ut the bill b efore she m ailed it. This amount has bee n abs orb ed b y me.” -3-

6. The defendant in this ca use did in fact advise Reverend Stephen Wa lke r that he should have not [sic] taken the case because he (the Defend ant) wastoo busy

with bank

ruptcy cases. 7. The defendant was co ntacted in regards to his billing, claiming that the plaintiff owed anadditional $729.94, in which the defendant was upset and advised the plaintiff he w ould char ge him w ith extortion, then the defenda nt on June 8, 2000, contacted the plaintiff’s mother and advised her that the amount that she had been billed for was a mistake, and it would be absor bed by him (the defendant). 3
On August 10, 2000, Mr. Van den Bosch filed a Motion to Dismiss, claiming that the Mr. Crafton’s Complaint w as barr ed by the statut e of limita tions outlined in T.C.A . § 28-3-1 04(2), to wit the injuries alleged by

Mr. Crafton did not accrue within one y ear before commencement of the action. The matter was set for hearing on October 16, 2000. On October 5, 2000, Mr. Crafton filed Plaintiff’s Motion for

Summary

Judgment in Response

to Defendant’s Motio n to Dismiss (the “Motion f or Summar

y Judg ment”). The Motion

for Summa

ry Judgment a

lleged that: (A) The plain

tiff did a ssert in hi s complain t that h e had hired Mr. John Van Den Bosch in 1994, b u t that is not the date in which the plaintiff became aware th at the d efendant had never submitted a motion for post-conviction or an exte nsion of tim

e to file one, as the defendant had co nstan tly led t he pla inti ff int o beli eving tha t he (the defenda nt) was in the

processof gett

ing him b ack i n Court for an evide ntiar y hearing. (B) The plaintiff became aware that the de fendant was frau du lently concealing informat

ion from h

im in rega rds to the filing of any motions to the Court, when the defenda nt advise d the plaintiff in la te July of 1999 that the defendant would talk with another lawy er to see if he could be of any

assistance to the plaintiff. (C)A week later, around July 27, 1999, t he plaintiff hired another at to rn ey, Mr. Mike Mosier, on the advice given to him by the defenda nt.-4- (D) In August of

1999, the plaintiff’s new attorney advise d him that the defendant, John Van Den Bosch had not filed any motions in the Court, on behalf of Plaintiff.
On October

16, 2000, Mr. Van denBosch appeared in court. Mr. Crafton wa s not present for the hearing. Allegedly

an order had not been filed to bring Mr. Crafton from the Department of Corrections to the courtroom. Consequently, the trial c ourt refused to hear the Motion to Di smiss on that date . On Nove

mber 3, 20 00, Mr. Va

n den Bos ch filed

Defend ant’s Moti on to Dismis s Plaintiff’s Motion for Summary Judgmen t. On November 6, 2000, Mr. Van den Bosch filed a Motion to Recuse due, in part, to the court’s refusal to hear the motions set for October 16, 2000 due to Mr. Crafton’s failure to appear. These motions were set for hearing on November 9, 2000 and an Order was entered to bring Mr. Cra fton to the court.
A hearing on the Mot ion to Dismiss and the Motion to Recuse was held on November 9, 2000. During the hearing, Mr. V an den Bo sch stated that he “was hired only for the purpose of getting the record [of Mr. Crafton’ s crimina l case in Henry County

] and to determine whether there was any likelihood of an appe al.” Mr. Van den Bosch also introduced into evidenc e a letter to Mr. Crafton’ s mother, dated No vember 1 4, 1994. Th is letter reads a s follows:
De ar Be ck y: I am writi ng to advi se you that I have looked through and gone over all of the paperwork which has been give n to me in the above matter. At this time, I failed to find any er rors thatwould justify any signific ant appe al. I

am inthe process of try

ing to get the closing st at em en ts of

th e a tt or ne ys and the actions of the Judge which a re not reported in the present transcript. I will forward a c op y o f same to y ou as soon

as I r eceive it.
Mr. Va n d en Bo sc h a ss er ts th at he wa s n ot hi re d b y M r. Cra fton to file a post-conviction relief but only to review the pape rwork from the trial court in order to determine if a n appeal was feasible. Mr. Van den Bosch cites Mr. Crafton’ s pro se filing of a motion for post-conviction relief as support for his assertion. When Mr. Crafton took the stand on his own behalf at this hearing, he testifie d, in pert

inent par t, as follo ws: MR. CRAFTON : He [Mr. Va n den Bos ch] was hir

ed when [my fa mi ly] talked with him, and by me talking with him, he [Mr. Van den Bosch] said, “I ’m going

to tr y to ge t you out of prison.” He sa id, “Anywa y I can ge t you out, if it’ s a

post-conviction appeal.” The day it got down to an evidenti ary hearing , sir, as I

was–wha t happened is, in October we called hi m. I w rote him. I

called h im. I h ad my family members c all him. Do not–plea se do not le

t my p ostconvicti on time run

out.-5- TH E C OU RT : O ka y. MR. CRAFTON: He [Mr. Van den Bosch] was made aware. We had discussed severa

l times tha

t I was under a

sentence that did not follow TCA guidelines. I

to ld him–He sa

id–I s aid, “I

t’s goin g to run o

ut, and you’ve g ota certain date.” His remark to me is, “Mr. Crafton, I know what I ’m doing . I wa s hired to handle this case. Let

me worry about the law and take care of this.”
* * *
In January of

‘95, on the 1 st or 2 nd , he took his own recanted statement in this case and done [sic] nothing with it. He told me, says, “I want to try to ge

t you an evidentiary

hearing.” All this time that I’ve talked withhim , he never

once come [sic] to me and said, “Well, Mr. Crafton, I’m t

hrough with your case .” He never sent me a written notice. I never seen [sic] any

of this.
* * *
Far as I know, he [Mr. Van den B osch ] didn’t look into anything.... As the time still carriedon, [Mr. Van de n Bosch w ould say

] “I’ m still lo o king, Mr. Crafton. I haven’t f ound anything.”

All this time I assumed he eithe

r filed a petition or

had file d some kind

of postconviction to take a

nd keep th

is case w here it could be reopened. You cannot get an evidentiary hearing, to my

knowledge, from

what I’ve been told, if the post neve r has been filed.
* * *
THE COURT: When did you [Mr. Crafton] find out that Mr. Van den Bosch had not filed any

thing on your be

half?
MR. CRAFTON : ...In 1999, I went up for parole. I

called Mr. Van den Bosch se

veral tim es. I call ed him and asked him, I said, “Can you come up here?” I’ve neve r met this man. I’ve

never seen this man before in six years.... Well, all this time for about three or four months, Mr. Van d

en Bosch would

say, “Well, I got this attorney I’m going to talk to. There’s someone in mind I want to see if they’ll take your case. I believe

he can help y ou.” Well, I didn’t know who h e was talking about. I ne

ver got a name. * * *-6- THE COURT: When did you find out–I ’m tr yin g to go back to my question. When did you find out Mr. Van den Bosch had not filed anything on y

our behalf?
MR. C RAFTON: When Mr. Mo sier told m e that he hadn’t f ile d an yt h ing the week before the–August 16 th was my parole

hearing date. He come abo

ut a wee k before that– On November 13, 2000, Mr. Van den Bosch filed Defendant’s Answer to Plaintiff’s Complaint for

Legal Malpra

ctice. On November 14, 2000, the trial court entered an Orde r Denying Motion to Dismiss a

nd an Ord er Deny ing Motio n to Recuse. On November 29, 2000, Mr. Van den Boschfiled Defend ant’s Respo nse to Plai ntiff ’s Mot ion fo r Sum mary Jud gm ent in Resp onse to Defendant’s Motion to Di smiss, along with hisown Affi davit in su pport of that Mo ti on. The Affidav it reads, in pertine

nt part, a s follows:
In the summer of 1994 I [Mr. Van den B os ch] was hire d by Ronald Crafton’s mother, Rebecca Meredith, to obtain the trial tra nscript in the case of State o f Tenne ssee vs. Ronald Crafton in He nr y Co un ty, Tennessee, to determine if there was a viable course of appeal in Ronald Crafton’s criminal case. After len gthy end eavors t

o obtain a ll the tria l recor ds affia nt finally obtained the trial transcript and went over the same, affiant found no significant

error in the trial, despite many and continuedassertions by Mr. Craf ton with ch anging

scenar ios.
I notified Mr. Crafton in t he early months of 1995, as well as notifying his mother, that I found no significant e rrors in the trial and declined to file a Motion for any Post Conviction Relief. ThereuponCrafton undertook to dra ft an d file his own Motion for Post Conviction Relief.... Affiant further informed Mr. Crafton and his mother if

such Motio n was filed it would be frivolou s and a wa ste of his money inasmuch as affiant would be required to expend a gre at amount of

time on such Motion in addition to what time affiant had already spent... On December 12, 2000, Mr. Van den Bosch f iled a Motion to Set Aside Order Deny ing Motion to Dismiss Entered on November 14, 2000. The matter was continued and Mr. Van de n Boschfiled Defendant’s Motion for Summary Judgment on April 17, 20 01, along with Memorandum

in Support of that Motion. On May 1, 2001, Mr. Van den B osch f iled a Mot ion to Quash all Affidavits filed by

Mr. Crafton in support of his case because said Affida vits were “not basedupon t he pers onal k nowle dge of the affiant.” On the same day , Mr. Van den Bosch also filed-7-

a Motion to Qu ash all Ple adings N ot in Complia

nce with Tennessee Rules of Civil Procedure. On May 4, 2001, Mr . Crafton

filed a Motion to Dismi ss the Def endant’ s Statemen

t of Mater

ial Fac ts Based on the Principle of Res Judicata.
All outstanding motions were heard by the trial court on January 3, 2002. An Or der was filed on Febr uary 1, 2002, which rea

ds, in per tinent pa rt, as fo llows:
IT IS THEREFORE ORDERED, ADJUDGED AND DEC REED that Plaintiff’s Motion for Summary Judgment in Response to Defendant’s Motion to Di smiss is den ied; Def endant’ s Motion to Dismiss Plaintiff’s Motion for Summary Judgment is denied; Motion to Set Aside O

rder De nying Motion

to Dismis s is de nied; Defendant’s Moti o n for Summa

ry Judgment i s denied; Motion to Qu ash All Pleading s not in Compliance with T ennesse e Rules of Civil Procedure is denied ; Motion to Q uash Af fidavits is denied; Motion to Dismiss Defen dant’s Statement of Material Facts is denied and Plai ntiff’s Motion to Amend Additional Evidence in Support of Motion for Summary Judgment is gra nted. Following the Order, Mr. Van den Bosch filed an Application for Permission to Appea l pursuan t to Tenn. R. App. P. 9 on Febru ary 21, 200 2. The Interlocutory Appeal was granted by

Order dated Mar ch 12, 2002. This Court granted Mr. Van den Bosch’s a pplication by Order

dated April 29, 2002, thereby

stay ing all p roceed ings in the lower court pending the outcome of this prese nt appea l.
Mr. Van den Bosch appeals the February 1, 2002 Order of the trial court, deny ing his Motion for Summary Judgment. He raise s one issue for our review, as stated in his brief: The trial cour t erred in denying D efendant/Appellant’s Tenn. R. Civ. P. 56 motion. Mr. Crafton has filed no brief in answer to Mr. Van den Bosch’s appe al. Our ruling will, therefore, be based upon the record as a whole.
A motion for summary judgme nt should be granted when the movant demonstrates that there are no genu

ine issue s of mater

ial fact and that t he moving

party is entitled to a judgment

as a matter of law. See Tenn. R. Ci v. P. 56.04. The party moving for summery judgment bears the burden of demonstrating that

no genuineissue of material fact exists. See Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997). On motion for summary judgme nt, the court must take the strongest legitimate view of evidence in fa vo r o f t he no nm ov in g p ar ty, al lo w a ll re as on ab le in fe re nc es in fa vo r o f t ha t p ar ty, and discard all countervailing evidence. See id. In Byrd v. Ha ll , 847 S.W.2d 208 (Tenn. 1993), our Supreme Court stated:

Once it is shown by the nonmoving pa rty that there is no g enuine issue of mater

ial fact , the nonmoving party must them demonstrate, by affida vit s or disc overy mater

ial, that there is a genuine, material fact dispute to

warran t a trial. In thi s regard, Rule 56.05 provides that-8- the nonmoving party c annot simply rely upon his ple adings but must set fort h specific

factsshowing that there is a genuine issue o f materia l fact fo r trial. Id. at 210-11 (citations omitted) (emphasis in original). Summary judgment is only appropr iate when the facts and the legal conclusions drawn f rom the facts reasonably

permit only one conclusion. See Carvell v. B otto ms , 900 S.W.2d 23, 26 (Tenn. 1995). Since only

questions of law are involved, there is no presumption of correctness rega rding a trial court’s grant or denial of summary judgment. See Bain , 936 S.W.2d at 622. Therefore, our review o f the tria

l court’sdenial of

summary judgmen t is de novo on the re cord bef ore this Court. See Warren v. Estate o

f Kirk , 954 S.W.2d 722, 723 (Tenn. 1997).
A cause of action for

legal malpractice accr

ues when: 1) the defendant’s neglig ence causes the plaintiff to suffer a legally cognizable or actual injury ; and 2) the plaintiff knows “or in the exercise of reasonable diligence should have known that this injury was caused by defend a nt's negligence.” Carvell

v. B otto ms , 900 S.W.2d, 23, 28 (Tenn. 1995). In the instant case , Mr. Van den Bo sch a sserts that his “actions or inactions did not, would not and could not change the eventua l outcome of Mr. Crafton’s case,” because there were no legitimate post-conviction or a ppellate iss ues to present. Although Mr. Van den Bosch pre sents his own affidavit and that of another attorne y to support this point, the question of whether Mr. Crafton’s motion fo r post-c onviction relief w ould have failed h ad it bee

n file d by a knowledg eable attorney rather than pro se is a matte r of some conjecture and, as such, does not warra nt summary judgment.
In addition to finding that

there is a dispute of

fact as to whether Mr. Van den Bosc h’s actions or inaction would or d

id cause Mr. Craf ton harm, we also

find that the record

contains a dispute of material fact as to the exact nature of the attorney/client r

elationship in this case. Mr. Van den Bosch claims that he was only hire d to review the Henry County record s for poss ible gr

ounds for appeal, which he did as evidenced by the letter to Ms. M eredith of November 14, 1994. However, the evidence put into the record by Mr. Craf ton, inclu ding a r

etainer fee for $3,000.00 , indicat

es a broader relationship than just a review of the criminal court records. Mr. Crafton indicates that Mr. Van den Bosch’s duties included not only filing a motion for post-conviction relief but also securing an evidenti ary

hearing and doing

whateve r was ne cessar

y to “try to get [Mr. Crafton] out

of prison.” This disput

e of fact is sufficient

to warra nt denial of a summa

ry judgmen t in this matt

er. I n short, witho ut knowing the full extent of the relationship and the parameters of Mr. V an den Bosch’s employ ment, we c annot con

clude, e ven if we give all favora

ble inferences to Mr. Van den Bosch, that Mr. Crafton was not harmed by some action or inaction of his attorney

. For the fore going

reasons , we aff

irm the Or

der of the trial c ourt and r

emand the

case for such further procee dings asmay

be nece ssary . Costs of th

e appea l are as sessed to

the Appellant, Mr. John Va n d en Bo sc h, Jr ., an d h is su re ty.-9- __________________________________________ W. FRANK CRA

WFORD, PRESIDING JUD GE, W.S

.