# FILED
February 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE WESTERN SECTION A T JACKSON JOHNNY MOFFITT, ) ) Plaintiff/Appellant, ) Henderson Circuit No. 91-205 ) VS. ) Appeal No . 02A01-9705-CV- 00095 ) CARTHEL SMITH, ) ) Defendant/Appellee. )
APPEAL FROM

THE CIRCUI T COURT OF H ENDERSON C OUNTY AT LEXINGTON, TENNESSEE THE HONORABLE FRANKLIN M URCHISON, JUDGE

JOHNNY MOFFITT, pro se Clifton, Tennessee
EDWIN E. WALLIS, JR. ROLF S. HAZL EHURST MOSS, BENTON & WALLIS, PLLC Jackson, Tennessee Attorneys for Appellee

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

AWFORD, P.J., W.S . DAVID R. FA

RMER, J. Plainti ff, Johnny Moffi

tt (“Plaintiff”), has appealed from a summa ry judgment2

dismissing his cause of

action against the defendant, Car thel Smith (“Defendant”), for legal malpractice. The Defendant was appointed to repr esent the Plaintiff who was charged with first degree murder and shooti ng into an occupied dwel ling. Plaintiff was found g uilty on both counts by a Henderson County Circuit Court jury on August 11, 1989. The jury’s verdict was upheld on appeal by the Court of Criminal Appeals in an opi nion filed on December 5, 1990.

On November 7, 1991, Plaintiff filed a civil lawsuit against the Def endant in th e Henderson County

Circuit Court alleg ing legal malpractic e in the handling of the criminal
m atter. Plaintif f sought compens atory dam ages of t wo million dollars an d punitive damages of two mi llion d ollars . An answ er was filed on behalf of

t he Defendant o n December 13, 1991. The Defendant filed a Motion for Summary Judgment on February 24, 1992. The Defendant relied on the pleadi ngs and attached affidavits from the following: Jerry Woodall, the District Attorney General for the Twenty-Sixth Judicial District of the State of Tennessee who prosecuted the case against the Plaintiff; Judge W hit Lafon, the Circuit Court Judg e forthe Twenty-Sixth J udicial District of the State of Tennessee who presided over the trial; and James E. Cody, a former emplo yee of the Henderson County Sheriff’s Department.

District Attorney General Woodall and Judge L afon stated that the Defendant utilized the pre-trial discov ery rules avail able for

the Plai ntiff’s behalf, filed the proper pretrial motions, explored the testi mony of the witnes ses by dire ct examination, as wel l as cross-examination, emphasized the issues which would relate to the Plaintiff’s innocence, but that the evidence offered against the Plaintiff was overw helming. They both affirmed that the Defendant’s representation of the Plaintiff was adequate and within the standards of the legal profession for repres entation of a criminal defendant. Mr. Cody affirmed that he heard the Plaintiff state on more than one occasion that he was well s atisfied with the Defendant’s representation and that the Plaintiff believed that the Defendant had done a good job for him.3

By order dated June 2, 1992, the tri al court granted Defendant’s Motion for Summary Judgment. The Plaintiff filed a notic e of appeal to this court on June 15,1992. In an opinion filed on March 29, 1993, this court reversed and remanded the decision of the trial court and stated: “ The Defend ant in his M otion for Summary Judgment and supporting Af fidavit s has not addressed the Plaintiff’s allegation regarding Defend ant’s alleged failure to properly in vestigate the case pri or to trial .” We further stated: “Defendant’s Answer joined issue o n the allegations of Plaintiff’s Complaint, but Defendant did not file

any aff i davit or other evide nce controverting Pl aintiff’s allegations concer ning Defendant’s trial preparation.” I n conclusion, we stated that it would not be inconceivable that after furthe r proceedings on remand, the posture of the case may be such that either party may move for summary judg ment pursuant to theprovisions of Tenn. R. Civ. P. 56.

On June 17, 1996, the Defendant filed a second Motion for Summary Judgment. The second Motion for Summary Judgment contained all of the Affidavit s of th e original Mot ion fo r Summary Judgment plus thr ee additional affidavits as foll ows: Defendant Carthel Smith, co-counsel Jack Hinson, and attorney Patrick Martin.

The affidavits of Defendant and Jack Hins on address the actions of the Defendant and his co-counsel during the pre-trial , t rial, and appellate process of the defense of Plainti ff. This included all t he i nvestigative acti ons Defendant and Mr. Hinson took as counsel for Plaintiff.

The affidavit of Patrick Marti n is the professional opinion of an expert witness w

ho has practiced criminal law in excess of fifteen years. In his affidavit , Mr. Martin states th at he reviewed all of the r elevant files

a nd documentation regarding Defendant’s representation of Plaintiff, and that based upon this thorough review of the case and in his professional opinion, Defendant fully and adeq uat ely prepared for and investigated the
case aga inst Plaintiff in all stages of the case, including the pre-trial, trial, and appe lla t e process. Mr. Marti n stated in relevant part :

In my professional opinion, Carthel Smith filed all pre-trial, trial and a ppel late motions which w ere necessary in the4 representation of Johnny Moffitt and pursue d every conceivable legal and ethical option whic h might have ledto a verdict fav ora ble to the criminal defendant Johnny Moffitt . . . [t]he servi ces of C arthel Smith in the represent ation of the criminal defendant, Johnny Moffitt, were w ithin the community standards both for the pre-t rial investigation, the tr ial and appeal and were not

neglectful of anything that needed t o have been done to properly repres ent the defendant Johnny Moffitt.
The trial court granted the Defendant’s Motion for Summary Judgment and denied the Plaintiff’s Motion to place this case on a continuous docke t in orders dated December 9, 1996. The Plaintiff filed a Notice of Appea l on January 6, 1997.

Law and Discussion Summary judgment is to be granted only if the “pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine iss u e as to any material fact and th at the moving party i s entitled to a judgmentas a matter of law.” Tenn. R. Civ. P. 56.03. In ruling on a motion for summary judgment, the courts must consider the matter in the same manne r as a motion for a direct verdict made at the close of the plaintiff’s proof, i.e., all the evidence must be view ed in the lightmo st favorable to the opponent of the moti on and all legitimate concl usions offac t must be drawn in favor of the opponent. Byrd v. Hall , 847 S.W.2d 208, 210 (Tenn. 1993). The Byrd

court went on to prov

ide in pertinent part: Once it is shown by the moving party that there is no genuine issue of material fact, the nonmovi ng party must then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact dispute to w arrant a trial. In this regard, Rule 56.05 prov ides that the nonmoving party cannot simplyrely upon his pleadings but must set forth specific facts showing that

there is a genuine issue of material fact for trial. Id. at 211 (emphasis original) (citations omitted).

In a suit a gainst an attorne y for prof essiona l negligen ce, the p laintif f must pr ove three things in o rder to rec over: (1) th e employm ent of th e attorn ey; (2) neg lect by the attorney of a reasonable duty; and (3) damages res ulting from such neglect. Sammons v. Rotroff

, 653 S.W.2d 740, 745 (Tenn. Ct. App. 1983). The settled general rule in most if not all Am erican ju risdictio ns is that an attorn ey to wh om the cond uct of litigation is5

entrusted may be held liable to his client for damages resulting from his failure to exercise ordinarycare, skill, and dili gence, or, as it is frequently expressed, that degree of care, skill, and diligence which is commonly possessed and exercised by attorneys in practice in the jurisdiction. Wood v. Parker , 901 S.W.2d 374 (Tenn. Ct. App. 1995); See 45 A.L.R.2d 5, 12.

It is well settled in Tennessee that legal malpractice action inv olving issues of standard of care and breach thereof require expert testimony. Lazy Seven Coal Sales v. Stone & Hines , 813 S.W.2d 400, 406 (Tenn. 1991); Cleckner v . Dal e , 719 S.W.2d 535 (Tenn. Ct. App. 1986). The Supreme Court , in Lazy Seven Coal Sales

v. Stone & Hines , 813 S.W.2d 400, 406 (Tenn. 1991),quoted from Cleckner v. Dale , 719 S.W.2d 535 (Tenn. Ct. App. 1986) as elaborating upon the standard to

which attorneys ar

e held in civil acti ons for damages: The standard ofcare applicable to a particular case will vary

depending upon the type of leg al activity inv olved. The standard of care applicable to civil li tigat ors may not be the same standard applicable to lawyers repr esenting the buyers in a real estate transaction or to lawyers drafting complicated testamentary instruments. The varied nature of the practice of l awunderscores the necessity of expert proof intendedt o a cquaint the finder of fact with the applic able profession a l standard in each case . . . [w]hether a lawyer’s c onduct meets the applicable standards is generally believed t o be beyond the common knowledge of laypers ons. Thus, except in cases involving clear and pa lpabl e negligence, most court s considering the issue have held that cases of legal malpractice cannot be decided without exper t proof regar

d ing the applicable standard of care and whether the lawyer’s conduct complies with this st

andard.

Id. at 540. The Cleckner court went on to provide:

We have determined that the evidentiary principles developed in medical malpractice cases are equally applic able to legal malpractice cases. The lawyer’ s standard of c are, except in the most extreme cases, s hou ld be proved using expert testimony. Likewise, whether the lawyer’s conduct in a given case departed from th e applicable standard should al so be proved by e xpert test imony.
In the case under

submission, theburden was placed on the Pl aintiff to prove that the Defendant owed Plaintiff a duty of prof essional reasonable care as his attorney, that6

Defendant breached that standard of care of professionally rea sonable care, and that as
a result of this breach, Plai ntiff suffered damages. In an attempt to satis fy this burden, Plaintiff alleges

that Defendant’s representation of him was inadequate in ev ery stage of the matter--pre-trial, trial, and appellate. Addit ionally, Plaintiff avers that Defendant’s investigationof the case was inadequate in that Defendant allegedly failed to investigate the crime

scene, failed to contact favorable witnesses having exculpatory evidence, and failed to contact witnesses found i n law enforcement reports that contradicted the state’s witnesses.

Undoubt edly, these are not matters within the common kn owledge of a layperson. Expert testimony is requir ed. See Cleckner v. Dale,

supra . As mentioned above, since the onset of Defendant’s first Motion for Summary Judgment, Defendant

has proffered three additional affidavits in the record, one of which i s design ated as an expert in the are a of criminal defe nse. Thes e additional affidavits essentially “patch up the holes” that were prese nt in Def endant’s first Motion for Summary Judgment. As mentioned supra , the additional affidavits state that Defendant compli ed with thestandard ofapplicable care for
a criminal defense attorney in Henderson C ounty, Tennessee, in all aspec ts of the cause of action--pre-trial,trial, appellate, and investigatory

matters. We conclude that Defendant has met his burden of persuading this court that no genuine and material factual i ssues exist, and that it is therefore, entitled to judgment as a matter of law.

Once the Defendant carried his burden, the burde n then sh ifted to Plaintif f to prove that there was at least one g enuine issue of material fact. He,however, has offered absolutely nothing by way of expert testimony concerning (1) t he appl icable standard of
care for a cr iminal defense attorney in Henderson County, Tennessee, or (2) how this standard of care was

breache d by Defen dant. Und oubtedl y, this is re quired by Cleckner and Lazy Seven Coal Sales, supra

. The only response made by Pl aintiff in regard to this Motion for Summary Judgment was his own sworn affidavit w hich, essentially, r

estates
some specifics of his allegations of negligence stated in his complaint. As such, Plaint iff has failed to establish an essenti al element of his case--that Defendant breached the7

standard of care applicable to a crim inal def ense att orney in He nderson County, Tennessee.

In summa ry, w e conclude that, in those legal malpractice actions wherein expert legal testimony is requir ed to establish neglig ence and proximate cause, affidav its by attorney(s) who are experts in the particular area in question which clearly andcompletely refute Plaintiff’s contention afford a prop er basis for dismiss al of the ac tion on summary judgment, in the a bsence of proper responsive proof by expert affidavit or otherwise. C onseq uently, we affirm the judgment of the tri al court granting Defendant’s Motion for Summary Judgment.
Concerning Plaintiff’s contention that this matter should be placed on a continuous docket until

such time as

Plaintiff may

becomeavailable to procee d with said matter, we find this c on tention is not well tak en. In his Motion to Place this Case on a Continuous Docket, Plaintiff relies upon Whisnant v. Byrd , 525 S.W.2d 152 (Tenn. 1975) and Smith v. Peebles , 681 S.W.2d 567 (Tenn. Ct. App. 1984). Upon review ing these cases, we find that they are distinguishable from the ca se at b ar. In both Whisnant and Peebles , the priso ners’ claims had come to the point of a tr ial. In the instant case, the D efendant i s petitioning the court to grant his Motion for S ummary Judgment. This cause i s not to the point of a trial. Plaintiff’s personal attendance is not requir ed . Plaintiff has a sufficient
means of conveying his ar guments to the court via his memoranda to the court. Furthermore, Plaintiff’s testimony could have been presen ted to th e court via deposition or affidavit. We, therefore, affirm the decision of the trial court denying

Plaintiff’s Motion to Place this Case on a Conti nuous Docket.

We affirm the judgment of thetrial court granting Defendant’s Motion for Summary Judgmentand denying Plaintiff’s moti on to place the case on a continuous docket . Cost s of this appeal are assessed against Plaintiff, for which execution may issue i f necess ary.8 HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

FARMER, J.