FILED

April 23, 1997

Cecil W. Crowson

Appellate Court Clerk

JOHN KOHL & COMPANY, P.C., )

JOHN B. KOHL, III, and HELEN H. KOHL, )

Individually, and JOHN B. KOHL, III, )

TRUSTEE, as Trustee of the John Kohl & )

Company, P.C. Profit Sharing Plan, )

)

Plaintiffs/Appellants, ) Appeal No.

) 01-A-01-9609-CV-00421

v. )

) Davidson Circuit

DEARBORN & EWING, a Tennessee ) No. 90C-1962

General Partnership, and )

DAN E. HUFFSTUTTER, )

)

Defendants/Appellees. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE THOMAS W. BROTHERS, JUDGE

STEVEN C. DOUSE

King & Ballow

1200 Noel Place

200 Fourth Avenue, North

Nashville, Tennessee 37219

ATTORNEY FOR PLAINTIFFS/APPELLANTS

JOHN BRANHAM

KATHRYN BARNETT

Branham & Day

150 Fourth Avenue North

Suite 1910

Nashville, Tennessee 37219

ATTORNEYS FOR DEFENDANTS/APPELLEES

AFFIRMED IN PART,

REVERSED IN PART,

 AND REMANDED

SAMUEL L. LEWIS, JUDGE
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OPINION

This is an appeal by plaintiffs/appellants, John and Helen Kohl, from a

decision of the Davidson County Circuit Court. The trial court awarded Plaintiffs a

total of $33,091.05 for the legal malpractice of defendants/appellees, Dearborn &

Ewing and Dan E. Huffstutter, and held the remainder of Plaintiffs' claims were

barred by the statute of limitations. The facts out of which this matter arose are as

follows.

Plaintiffs own a land surveying business. They retained Defendants in 1983

to incorporate the business and to handle other corporate matters. From 1983 to

1988, Huffstutter advised Plaintiffs on many issues. He aided them in the

development of a profit sharing plan (“the Plan”) and administered the Plan until

1988. He also advised Plaintiffs in 1986 on how to finance the purchase of a building

for their business. Pursuant to this advice, Plaintiffs obtained a loan from Commerce

Union Bank. The Small Business Administration covered a portion of the loan.

Huffstutter advised Plaintiffs the Plan should purchase all or a portion of the loan.

He explained to Plaintiffs they needed to transfer funds from their IRA accounts into

the Plan in order to do this, but stated the IRA withdrawals would not be taxed.

In September 1988, Plaintiffs received a letter from the IRS informing them

of the following:

In our review of your tax return for 1986, it appears that the

income deductions, and credits you reported do not agree with the

amounts reported to us on information returns filed by the payers.

(see attached page(s)).

Please explain in a signed statement where the amounts are

reported on your tax return. If the income was not reported or if

the deductions or credits were overstated, please explain why.

Plaintiffs responded to the letter through their accountant, David Hinton. In October

1988, Robert E. Kolarich, Plaintiffs' attorney, wrote Dearborn & Ewing the following

letter:

In our last discussion of John Kohl's account with your firm, it

was agreed that you would handle the application for an extension

of his tax return, after which the file would be removed. Mr.

Kohl intends to hire a new firm to handle his tax work, however,

I understand that a new question has arisen with regard to his

pension and profit sharing plans. Evidently, Mr. Huffstetter [sic]
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had advised that the funds held in an IRA account could be

transferred to the pension and profit sharing account and the IRS

is reviewing the transaction. Please advise as to when this issue

may be resolved so that the files may be transferred.

John Kohl next received a letter in August 1989 from Dearborn & Ewing. The letter

stated, in part, as follows: “However, because the Sales Agreement also looked to the

status of Plan participants (as beneficial owners of the Plan), officers and

shareholders of the Borrower who are also Plan participants may cause the Plan's

purchase of the SBA Loan to be questioned.” 

Plaintiffs filed a complaint against Huffstutter and Dearborn & Ewing on

1 May 1990. The complaint alleged the following acts constituted legal malpractice:

1) advising Plaintiffs the Plan should acquire all or a portion of the $250,000.00 loan;

2) advising Plaintiffs they should transfer funds from their IRA accounts into the Plan

and the withdrawals would not be taxed; and 3) advising Plaintiffs to make a

$2,000.00 voluntary deductible contribution to the Plan in 1986. Defendants

answered the allegations and claimed Plaintiffs had failed to mitigate their damages

and the statute of limitations barred their claims. Plaintiffs moved to amend their

complaint by adding a count regarding the negligent drafting and administration of

the Plan. The court granted the motion.

Defendants filed a motion for partial summary judgment as to Plaintiffs'

claims to attorney's fees incurred in pursuit of the litigation on 22 January 1996.

Defendants argued there was no statutory, legal, or contractual basis for the recovery

of the fees. The court granted the motion, but noted that it made no determination as

to the remainder of Plaintiffs' claims “including attorney's fees allegedly expended

for corrective action resulting from defendants' negligence.”

Trial was held from 29 April to 2 May 1996. Plaintiffs submitted a

supplement to their expert witness statement on 26 April 1996. The supplement

reflected an upward change in the amount of damages for the lost value of the funds

transferred from the IRA accounts. During the trial, Plaintiffs moved the court to

amend their complaint to claim special damages for the fees paid to Dearborn &

Ewing for the negligent work. The court denied the motion. The trial court also ruled

that it would only consider the expert testimony consistent with the original expert
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witness statements and depositions. As a result, the trial court completely disregarded

the supplemental expert witness statements of Samuel Butts, Plaintiffs' expert.

Finally, the trial court ruled the testimony of Larry Crabtree, the attorney who

performed or supervised the corrective work, was not admissible under Disciplinary

Rule 5-101(B)(3). 

The trial court entered its final order on 22 May 1996. The order

incorporated the trial court's findings of fact and conclusions of law made at the close

of the parties' cases. As to the statute of limitations defense, the trial court reasoned

as follows:

In this case, Mr. Kolarich wrote a letter on October 24,

1988 that clearly points out there is some problem associated with

the rollover of IRA funds into the pension plan, it had been

noticed, they were aware of it, and it was so severe in his mind

and Kohl's mind that they were going to change law firms and

have someone else do their tax work. They had turned this over

to their CPA. They were taking actions. They knew that they had

received some injury as a result of potentially erroneous advice

they had received from Mr. Huffstutter and the Dearborn &

Ewing law firm.

And the Court finds that as of October 24, 1988, the

Kohls should have known, if they were not aware, they should

have known, as a reasonable person, that they had suffered a

legally cognizable injury from the misconduct of Mr. Huffstutter.

And therefore, any action against him should have been filed in

relationship to that rollover within one year. An interesting

question is whether -- and therefore, the claims based upon the

rollovers are barred.

A question that's tied in with that is whether or not that

bars any recovery. Does that put them on notice as to the entire

plan? And I find that it does not, This letter is very specific. It

points out that there are problems with the changing of monies

from an IRA plan into a pension plan, profit sharing plan only.

It doesn't address the SBA loan or any other aspect of the plan,

simply that specific item. And I think that it is clearly distinct

enough that it does not bar their filing suit until they became

aware of this, under Mr. Kohl's testimony, sometime shortly

before he first went to King & Ballow in September of 1989, and

this action was filed timely -- in a timely manner for the other

claims.

The court held Defendants liable to Plaintiffs in the amount of $28,591.05 for

advising Plaintiffs the Plan could purchase a portion of the loan and in the amount of

$4,500.00 for negligently drafting and administering the Plan. The trial court also
1

 In a footnote to their brief, Plaintiffs argue that this court should not apply Carvell

retroactively to their case if Carvell overruled prior precedent. It is the opinion of this court that

the supreme court did not overrule its earlier decisions. Although the court directed that courts

should no longer use the term “irremediable injury,” it did not expressly overrule or criticize any

of its earlier decisions. Moreover, the court did not attempt to provide definitions of the new

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ruled that it would have awarded $30,000.00 to Plaintiffs for the lost earning power

of the money withdrawn from the IRA accounts and $19,000.00 in attorney's fees had

the statute of limitations not barred the claims relating to the IRA rollovers.

Thereafter, Plaintiffs filed a timely notice of appeal and presented the following

issues:

I. Whether the trial court erred in holding that the statute

of limitations barred recovery for certain damages

claimed by Plaintiffs.

II. Whether the trial court erred in holding that Plaintiffs

were not entitled to recover, as general damages in a

legal malpractice action, fees paid for legal work that

was negligently performed.

III. Whether the trial court erred in granting a partial

summary judgment holding that Plaintiffs could not as

a matter of law recover any of the costs of prosecuting

this action as consequential damages for legal

malpractice.

IV. Whether erroneous evidentiary rulings by the trial court

prejudiced the record on which the court assessed

damages.

We address all of these issues below.

I. Statute of Limitations

Recently, the Tennessee Supreme Court addressed the issue of when the

statute of limitations begins to run in legal malpractice actions. Carvell v. Bottoms,

900 S.W.2d 23, 28-30 (Tenn. 1995). The court restated the two occurrences

necessary to begin the running of the statute of limitations and modified them to

avoid past confusion.

The first occurrence necessary to begin the running of the statute is the

plaintiff must suffer a legally cognizable or actual injury as a result of the defendant’s

negligence. Id. Prior to the decision in Carvell, judges, practitioners, and scholars

used the term “irremediable injury” instead of legally cognizable or actual injury. See

id. at 28. In Carvell, the supreme court changed the terminology.1 The second
terms. Thus, it seems the supreme court simply changed the terms to avoid the confusion caused

by the word “irremediable.” It appears the court’s previous decisions which used the term

“irremediable injury” may still be useful in deciding when a legally cognizable or actual injury

has occurred.

2We could not find any direct evidence that Mr. Hinton charged Plaintiffs for his services. 

Nevertheless, there is sufficient evidence in the record from which we can infer Plaintiffs

compensated Mr. Hinton for his services. 

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occurrence necessary to begin the running of the statute of limitations is that “the

plaintiff must have known or in the exercise of reasonable diligence should have

known that this injury was caused by the defendant’s negligence.” Id. The court then

elaborated on the knowledge requirement and adopted a holding from a medical

malpractice case. The court stated:

It is not required that the plaintiff actually know that the injury

constitutes a breach of the appropriate legal standard in order to

discover that he has a ‘right of action’; the plaintiff is deemed to

have discovered the right of action if he is aware of facts

sufficient to put a reasonable person on notice that he has suffered

an injury as a result of wrongful conduct.

Id. at 29 (quoting Roe v. Jefferson, 875 S.W.2d 653, 657 (Tenn. 1994)).

Applying these requirements to this case, it is the opinion of this court that

the statute of limitations had run on those claims related to the IRA rollovers. In this

case, the legally cognizable or actual injury occurred at the very latest when Plaintiffs

began to incur expenses as a result of Defendants’ negligent advice. The earliest

evidence of this in the record is 19 October 1988. On this date, Plaintiffs’ accountant,

David Hinton, wrote a letter to the IRS in response to the IRS’s request for

information. The IRS letter, quoted in an earlier portion of this opinion, explained

that the IRS had noticed a conflict between the amounts reported by Plaintiffs and

those amounts reported by payers. Mr. Hinton’s response stated: “Please be advised

that the retirement plan distributions were rolled over to the John Kohl Company,

P.C., Profit-Sharing Plan.” As of the date of this letter or possibly even earlier,

Plaintiffs began incurring expenses directly related to Mr. Huffstutter’s advice on the

IRA rollovers. 2

 Thus, Plaintiffs were actually injured at that time.

Plaintiffs correctly stated that the injury element is not met if it is contingent

on a third party’s actions or if there is a mere possibility or probability of injury.
3

 We note that our decision in this case does not mean that a plaintiff has to incur

monetary damages in order for there to be actually injury. It just happens to be so in this case.

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Caledonia Leasing and Equip. Co. v. Armstrong, Allen, Braden, Goodman,

McBride & Prewitt, 865 S.W.2d 10, 17 (Tenn. App. 1992). Relying on this case,

Plaintiffs argue that the injury was still inchoate in October 1988 because the IRS had

not filed suit or issued a deficiency statement and Plaintiffs had not incurred any

attorney’s fees or other damages. We can not agree. Plaintiffs’ injuries were no

longer contingent on a third party’s actions or speculative once they began to incur

expenses related to the negligence.3

 In addition, it is not necessary for Plaintiffs to

have suffered all the injurious effects of Defendants’ negligence for the statute to

begin running. Security Bank & Trust Co. v. Fabricating, Inc., 673 S.W.2d 860,

864-65 (Tenn. 1983).

It is the opinion of this court that Plaintiffs had the requisite knowledge at

the very latest on 24 October 1988. On that date, John Kolarich, Plaintiffs’ attorney,

wrote a letter. The letter clearly demonstrates Mr. Kolarich knew the IRS’s

investigation involved the rollover of funds into the Plan and Mr. Huffstutter had

advised Plaintiffs’ as to the rollovers. Mr. Kolarich’s knowledge is attributable to

Plaintiffs. Moody v. Moody, 681 S.W.2d 545, 546 (Tenn. 1984). It is not necessary

for a plaintiff to know the facts constitute a claim for legal malpractice. Instead, a

plaintiff only needs to be “aware of facts sufficient to put a reasonable person on

notice that he has suffered an injury as a result of wrongful conduct.” Carvell, 900

S.W.2d at 29 (quoting Roe v. Jefferson, 875 S.W.2d 653, 657 (Tenn. 1994)). It is the

opinion of this court that the knowledge that the IRS was investigating a transaction

recommended by an attorney without reservation is sufficient to put a reasonable

person on notice.

The statute of limitations as to any claims resulting from the IRA rollovers

began to run on 24 October 1988. As of that date, Plaintiffs had suffered an actual

injury and had the requisite knowledge. Plaintiffs filed their complaint on 1 May

1990. The trial court correctly determined the statute of limitations barred Plaintiffs’

claims because they filed their complaint more than one year after the cause of action

accrued. Tenn. Code Ann. § 28-3-104(a)(2) (Supp. 1996).
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II. Damages

Plaintiffs’ second and third issues involve the different types of damages

available in a legal malpractice action. This case involves three different categories

of attorney’s fees. The first, initial fees, are those fees the plaintiff paid or agreed to

pay to the negligent defendant. The second, corrective fees, are those fees the

plaintiff incurred to correct the errors created by defendant’s negligence. The

existence of corrective fees distinguishes this case from a great majority of the cases.

To explain, every case does not include corrective fees. For example, when an

attorney fails to file a personal injury claim within the statute of limitations there are

no corrective fees. The injured party has incurred only the initial fees and has lost his

or her claim. Finally, the third category of fees, litigation fees, are those fees paid by

the plaintiff to prosecute the malpractice action. It is Plaintiffs’ contention that they

should be able to recover both their initial fees and their litigation fees and at the very

least one of the two.

A. Initial Fees

Plaintiffs primarily rely on Foster v. Duggin, 695 S.W.2d 526 (Tenn.1985),

to support their argument that they are entitled to the initial fees and the litigation

fees. Although the specific facts of Foster are distinguishable from the present case,

the general holding of the case is useful. In Foster, the plaintiffs retained an attorney,

Mr. Duggin, on a contingency fee basis to represent them in a personal injury action.

Mr. Duggin committed malpractice when he failed to file the complaint within the

statute of limitations. As a result, the plaintiffs lost their claim. This is the typical

malpractice scenario. In such a case, the successful plaintiff is entitled to recover at

the very least the value of the lost claim. 7 Am Jur. 2d Attorneys at Law § 226

(1980).

The only issue before the Foster court was whether the trial court should

have reduced the malpractice award by the fee Mr. Duggin would have received had

he competently handled the case. Foster, 695 S.W.2d at 526. The trial court

concluded that Mr. Duggin was not entitled to a set off and the court of appeals

affirmed. The supreme court also agreed Mr. Duggin was not entitled to a set off and
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explained “the burden of [Mr. Duggin’s] incompetence should not be placed upon the

innocent client” and the plaintiffs “should not be required to assume the burden of

twice paying for legal representation.” Id. at 527. Thus, the plaintiffs recovered their

initial fees in a roundabout way. See also Bruce v. Olive, No. 03A01-9509-CV00310, 1996 WL 93580, at *5 (Tenn. App. 4 March 1996).

Although Foster was a contingency fee case, there is no reason why the

same logic can not be applied in this case. The Plaintiffs in the present case are

entitled to recover their initial fees with the exception that Defendants receive “credit

for expenses which were incurred on behalf of [Plaintiffs] which ultimately benefitted

[Plaintiffs].” Foster, 695 S.W.2d at 527. Defendants argue that allowing Plaintiffs

to recover their initial fees ultimately allows them to receive free legal services

because they will recover both the corrective fees and the initial fees. At first glance

this argument appears logical, but this conclusion is not necessarily the result dictated

by the case law. First, the corrective fees in this case are analogous to the value of

the lost claim in Foster, that is, the damages directly flowing from the malpractice.

Second, the justification of the supreme court in Foster that a plaintiff “should not be

required to assume the burden of twice paying for legal representation” refers to the

payment of the initial fees and the litigation fees. As is explained below, it is the

opinion of this court that Plaintiffs are not entitled to their litigation fees. Thus, in

the end Plaintiffs are having to pay certain fees for the work they had hoped to have

properly performed in 1983.

B. Litigation Fees

Plaintiffs argue that Foster stands for the proposition that litigation

expenses are recoverable as incidental damages. Plaintiffs cite the following

sentence: “The additional fees necessary to pursue this action are in the nature of

incidental damages flowing from Mr. Duggin’s breach of contract.” We can not agree

with Plaintiffs’ argument. Although the statement seems clear, a literal application

of the statement is inconsistent with the rest of the opinion. To explain, the statement

is inconsistent because if plaintiffs were able to recover their litigation expenses the

recovery of the initial fees would not be necessary to ensure that plaintiffs were not

“required to assume the burden of twice paying for legal representation.” Id.
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Moreover, in another portion of the opinion, the supreme court discussed the majority

view and explained that the litigation fees “are said to cancel out any fees which the

plaintiff would have owed the attorney had he performed competently.” Id. It is

clear that the supreme court intended to award the initial fees only. This is further

evidenced by the fact that the court limited its decision to a determination of this issue

only. Id. at 526. Thus, it is the opinion of this court that Foster does not stand for

the proposition that a plaintiff in a legal malpractice action may recover their

litigation fees.

It is further the opinion of this court that Plaintiffs are not entitled to their

litigation fees. A party may not recover attorney’s fees absent a contractual

agreement between the parties or a statutory provision. Goings v. Aetna Cas. &Sur.

Co., 491 S.W.2d 847, 848 (Tenn. App. 1972). Attorney’s fees are no more damages

in a legal malpractice action than they are in a personal injury case. Plaintiffs have

failed to convince this court that Tennessee’s courts should treat legal malpractice

claims differently than all other claims.

C. Initial Fees as Special or General Damages

In addition to determining that the law did not entitle Plaintiffs to recover

the initial fees, the trial court also determined the initial fees were special damages

and denied Plaintiffs’ request to amend their complaint to include a claim for the

initial fees as special damages. We disagree and hold that the initial fees are

recoverable as general damages.

The supreme court has defined general and special damages as follows:

“‘General damages are such as naturally and necessarily result from the wrong of

injury complained of, while special damages are such as naturally but not necessarily

result from the wrong or injury complained of.’” Inland Container Corp. v. March,

529 S.W.2d 43, 44 (Tenn. 1975) (quoting Caruthers, History of a Lawsuit §155 (8th

ed. 1963)). Initial fees as damages naturally result from legal malpractice. In all

malpractice cases, the plaintiff has retained an attorney presumably for a fee to

perform certain services. If malpractice occurs, the plaintiff may recover the fee

which is a natural part of the transaction. Moreover, the recovery of a fee paid to a
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negligent attorney is necessary to make the plaintiff whole. Thus, the trial court erred

when it determined the initial fees were special damages.

III. Expert Testimony

A. Samuel Butts

Following our review of this record we are of the opinion that the trial court

did not err in excluding portions of the testimony of Samuel Butts, Plaintiffs’ expert

witness. The trial court excluded portions of Mr. Butts’ testimony for two reasons:

1) Plaintiffs failed to seasonably supplement his expert witness testimony and 2) the

basis of his testimony lacked trustworthiness.

The trial court has discretion to determine the proper corrective action for

discovery abuses. This court will not disturb that determination unless the trial court

abused its discretion. Lyle v. Exxon Corp., 746 S.W.2d 694, 699 (Tenn. 1988). In

the instant case, Mr. Butts was deposed on 22 September 1995. Eight months later

on the Friday before the trial on Monday, Plaintiffs delivered a supplement to Mr.

Butts’s prior testimony. The supplement substantially altered his prior opinions.

During his deposition, Mr. Butts concurred with a damagememorandumofDecember

1992 that estimated Plaintiffs’ damages resulting from the “loss of use” of funds to

be $58,000.00. His supplement raised that amount significantly. On the morning of

trial, Plaintiffs produced another calculationraisingthe damage claim to $124,668.75.

Mr. Butts was also of the opinion in his deposition that $27,000.00 in attorney’s fees

were reasonable. His later statement raised that amount to $50,335.91.

There are certain factors for trial courts to consider when determining

appropriate sanctions for abuse of expert witness discovery. These are: 1) the

explanation given for the abuse; 2) the importance of the testimony; 3) the need for

time to prepare; and 4) the possibility of a continuance. See id. The trial court

entertained arguments from the parties on the application of these factors to the

admission of Mr. Butts’s testimony. In regard to the need for time to prepare to

address this substantial leap in the expert’s opinion of damages, the trial court
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commented: “I am concerned. It’s about a $68,000 jump and it would surprise me,

and it sounds like that’s a surprise to someone if they were not made aware of that till

three days before trial.” Considering the first factor in Lyle, the trial court found as

follows:

The Court finds that there is no justification for this unseasonable

response to a timely discovery response.

The purpose of Rule 26 and the purposes of scheduling

orders are to require that expert witnesses set forth their opinions

with certain sufficient clarity that the opponents may have the

opportunity to prepare to respond to those opinions.

It is clear from the record in the instant case that the trial court properly and fairly

considered the Plaintiffs’ proof and arguments regarding the failure to comply with

the discovery rules. Moreover, the trial court did not exclude all of Mr. Butts’

testimony, but held an appropriate sanction was the exclusion of those portions of Mr.

Butts’s testimony that exceeded his earlier discovery responses. We are of the

opinion this was not an abuse of the trial court’s discretion.

The trial court had other reasons for limiting Mr. Butts’s testimony. The

trial court found the increased damages amount was contrary to Mr. Butts’s original

deposition testimony and seemed untrustworthy. The court noted: “I have some

concerns over the trustworthiness of Mr. Butts’ [sic] testimony, specifically dealing

with these calculations that were not even prepared by him that presume individuals

living to be 115 years old to the year 2056. Frankly some of those figures seemed

absurd.” Tennessee Rule of Evidence 703 provides: “The court shall disallow

testimony in the form of an opinion or inference if the underlying facts or data

indicate lack of trustworthiness.” 

Determinations concerning the admission of expert testimony are left to the

sound discretion of the trial court and will not be disturbed absent an abuse of that

discretion. Buchanan v. Harris, 902 S.W.2d 941, 945 (Tenn. App. 1995). In the

instant case, the trial court was afforded the opportunity to observe and consider the

testimony offered by Mr. Butts over the course of two days. Plaintiffs offered no

indication that the court’s finding of the lack of trustworthiness was an arbitrary

exercise of discretion. The court did not abuse its discretion in striking portions of

Mr. Butts’s testimony. Therefore, we are of the opinion this issue is without merit.
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B. Larry Crabtree

The trial court also excluded the testimony of Plaintiffs’ co-counsel, Larry

Crabtree. Plaintiffs proposed to offer Mr. Crabtree’s testimony to explain and justify

the fees charged by King & Ballow to correct defendants’ errors.

Cannon 5 of the Code of Professional Conduct provides that “a lawyer

should exercise independent professional judgment on behalf of a client.”

Disciplinary Rule 5-101(B) mandates:

 (B) A lawyer shall not accept employment in contemplated or

pending litigation if the lawyer knows or it is obvious that the

lawyer or a lawyer in the lawyer's firm ought to be called as a

witness, except that the lawyer may undertake the employment

and the lawyer or a lawyer in the lawyer's firm may testify:

 (1) If the testimony will relate solely to an uncontested matter.

 (2) If the testimony will relate solely to a matter of formality and

there is no reason to believe that substantial evidence will be

offered in opposition to the testimony.

 (3) If the testimony will relate solely to the nature and value of

legal services rendered in the case by the lawyer or the lawyer's

firm to the client.

 (4) As to any matter, if refusal would work a substantial

hardship on the client because of the distinctive value of the

lawyer or the lawyer's firm as counsel in the particular case.

This rule embodies important public policy considerations and ultimately protects

clients. Ethical Consideration 5-9 recognizes the costs to a client when an attorney/

witness refuses to withdraw as counsel providing: “If a lawyer is both counsel and

witness, the lawyer becomes more easily impeachable for interest and thus may be a

less effective witness. Conversely, the opposing counsel may be handicapped in

challenging the credibility of the lawyer . . . . An advocate who becomes a witness

is in the unseemly and ineffective position of arguing the advocate’s own credibility.”

Finally, Ethical Consideration 5-10 mandates: “Where the question arises, doubt

should be resolved in favor of the lawyer testifying and against becoming or

continuing as an advocate.” These guidelines are clear. An attorney must steadfastly

guard against becoming both an advocate and a witness.

This court has held that trial courts “have a broad range of options available

to insulate trials from ethical taint.” Hilton v. Crawford, No. 03A01-9102CV33,
4

 One reason for this conclusion is that the corrective work never rectified the problems

with the plan. As a result, Plaintiffs terminated the Plan on 19 April 1996. In addition,

Defendants contend, in part, that King & Ballow spent a great deal of time on project which they

never completed.

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1991 WL 261872, at *3 (Tenn. App. 13 Dec. 1991). In Hilton, the court concluded:

“[T]he mere fact that counsel is a potential witness is not sufficient reason for

disqualification. It may very well be, however, if counsel wish to become a witness

the Trial Court might exclude their testimony. . . .” Id.

Plaintiffs argue the exception contained in Disciplinary Rule 5-101(B)(3)

applies to Mr. Crabtree’s testimony. We disagree. The issues which Mr. Crabtree’s

testimony would address are more involved than merely stating the “nature and value

of legal services rendered.” In this case, Mr. Crabtree’s testimony would necessarily

address highly disputed issues.4 In other words, the testimony and cross-examination

would involve the appropriateness of the corrective actions taken, the results of the

corrective actions taken, alternative actions which Plaintiffs could have taken, the

cost of the corrective actions, estimates of the cost of alternative actions, the propriety

of the fees actually incurred, and so on. As explained by the trial court, this is not a

case where the testifying attorney simply lays the foundation for the trial court to

make an award of attorney’s fees.

Plaintiffs also argue the trial court should have permitted Mr. Crabtree to

testify because excluding his testimony worked a hardship on Plaintiffs. The Sixth

Circuit has noted that “[a] self-inflicted injury is not a hardship.” General Mill

Supply Co. v. SCA Servs., Inc., 697 F.2d 704, 713 (6th Cir. 1982). The court in

General Mill stated:

Now they turn to the United States District Court and say in

effect: ‘Yes, judge, we know that the canons would never allow

[the attorney] to represent General Mill in an abuse of process

suit, and also be its star witness. But you can’t do anything to us,

because, knowing what was down the road, by our own deliberate

action we created a situation where [the attorney] is indispensable

to General Mill and his withdrawal a hardship. So, judge, you’ll

just have to swallow it.

. . . [T]he duty to withdraw is plainest when the need to

be a witness is well known in advance. The canon would be

absurd and indefensible if it excused compliance when the

dependence of the client on the lawyer had been created in fact of

the knowledge that the dependence would be used to frustrate the
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enforcement of the canon. The term “hardship” is certainly

capable of rational interpretation, of meaning a situation the

alleged victim of the hardship has not knowingly caused and

could not reasonable foresee.

Id. at 714-15. After hearing the proffered Crabtree testimony, the trial court found:

“This is exactly the type of situation that the DR 5-101 is intended to address. It puts

lawyers in the most uncomfortable position to be both advocate and witness. This is

not a situation that was not unforeseeable.” Attorneys cannot be allowed to create

client hardships in order to force the court to accept prohibited testimony.

In addition, the trial court in this case specifically found Plaintiffs suffered

no substantial harm in the exclusion of Mr. Crabtree’s testimony. We agree.

Plaintiffs had an independent expert, Samuel Butts, who could base his opinions

about the necessity and reasonableness of the corrective work upon Crabtree’s

representations to him. Based upon the record, the trial court did not abuse its

discretion in excluding the testimony of co-counsel Larry Crabtree from the trial in

this cause.

IV. Conclusion

It results that the judgment of the trial court is affirmed in part, reversed in

part, and remanded. On remand, the trial court shall determine the appropriate

amount of the initial fees payable to Plaintiffs as damages. Costs on appeal are taxed

equally to Plaintiffs and Defendants.

_______________________________

SAMUEL L. LEWIS, JUDGE

CONCUR:

_____________________________________

BEN H. CANTRELL, J.
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_____________________________________

WILLIAM C. KOCH, JR., J.