FILED

July 10, 1998

Cecil W. Crowson

Appellate Court Clerk

JACK WAYNE BURSACK, )

)

Plaintiff/Appellant, ) Appeal No.

) 01-A-01-9710-CV-00555

v. )

) Davidson Circuit

LAWRENCE D. WILSON, ) No. 96C-3128

)

Defendant/Appellee. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE MARIETTA H. SHIPLEY, JUDGE

LIONEL R. BARRETT, JR.

Washington Square Two - Suite 418

222 Second Avenue, North

Nashville, Tennessee 37201

ATTORNEY FOR PLAINTIFF/APPELLANT

G. KLINE PRESTON, IV

Washington Square Two - Suite 416

222 Second Avenue, North

Nashville, Tennessee 37201-1652

ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE
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OPINION

In this case plaintiff Jack Wayne Bursack sues defendant Lawrence D.

Wilson for alleged professional negligence in legal representation of the plaintiff

in prior litigation before the Circuit Court of Maury County, Tennessee.

In the Maury County litigation Rally Hill Productions, Inc. filed suit on

January 30, 1992, against Jack Wayne Bursack and others alleging false

representations and the submission of false financial statements by Bursack and

others upon which Rally Hill reasonably relied. Defendant Lawrence D. Wilson

answered and cross-claimed on behalf of Bursack.

When the Maury County case came on for trial on February 3, 1993,

Bursack did not appear. From the record this strategy seems to have been based

upon the result obtained in Spilman v. Harvey, 656 F.2d 224 (6th Cir. 1981), in

which a petitioner was allowed to relitigate, in federal court, issues which had

been previously determined in state court via default judgment. In the case at

bar, default judgment was entered against Mr. Bursack and his co-defendant

based upon a jury verdict finding fraud. Judgment was in the amount of

$570,098.25 inclusive of $100,000.00 in punitive damages assessed by the jury.

On May 28, 1993, Bursack filed a petition for relief under Chapter 7

of the Federal Bankruptcy Code; and on August 30, 1993, Rally Hill instituted

its action in the bankruptcy court to determine the dischargeability of the

$570,098.25 judgment. The bankruptcy court granted summary judgment in

favor of Rally Hill, holding that the Maury County judgment was not

dischargeable in bankruptcy. Bursack appealed first to the United States District

Court of the Middle District of Tennessee, In Re Bursack, 163 Bank. 302,

(Bankr.M.D.Tenn.1994), and then to the Sixth Circuit Court of Appeals, In Re

Bursack, 65 F.2d 51 (6th Cir.1995), with both of these courts holding that the

Maury County judgment on the issue of fraud had preclusive effect in the Federal

Bankruptcy Court and the Maury County judgment was thus nondischargeable.

The decision of the United States Sixth Circuit Court of Appeals was
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issued August 25, 1995, and the complaint in the case at bar in the Circuit Court

of Davidson County was filed on Monday, August 26, 1996.

Defendant's motion to dismiss based upon the expiration of the statute

of limitations was denied on November 19, 1996.

After further proceedings, the Circuit Court for Davidson County,

Tennessee on May 28, 1997, granted summary judgment for defendant Lawrence

D. Wilson and plaintiff appealed.

The case is before us on review of an order granting summary

judgment. As such, it must be determined according to the familiar principles set

forth in Byrd v. Hall, 847 S.W.2d 208 (Tenn.1993); and Evco Corp. v. Ross, 528

S.W.2d 20 (Tenn.1975). We must view the evidence taking the strongest

legitimate view in favor of the nonmoving party, allowing all reasonable

inferences from the evidence in his favor, and discarding all countervailing

evidence. Byrd v. Hall, 847 S.W.2d 208 (Tenn.1993). By viewing the evidence

in this way, we must determine that no dispute exists as to any material fact. 

Where there does exist a dispute as to facts which are

deemed material by the trial court, however, or where there

is uncertainty as to whether there may be such a dispute, the

duty of the trial court is clear. he is to overrule any motion

for summary judgment in such cases, because summary

judgment proceedings are not in any sense to be viewed as a

substitute for a trial of disputed factual issues.

Evco Corp. v. Ross, 528 S.W.2d 20, 24 (Tenn.1975).

The court of appeals on appeal from summary judgment by the trial

court is bound by the same rules. Gray v. Amos, 869 S.W.2d 925 (Tenn. App.

1993).

The only issue presented for review by the appellant asserts:

Whether the trial court erred in granting the defendant's

motion for summary judgment since there was a genuine

issue of material fact as to the advice given to the plaintiff

Jack Bursack to allow a summary judgment (default?) to be
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entered against him in the underlying civil action in Maury

County, Tennessee.

The resolution of this issue depends upon whether or not expert

testimony on behalf of the plaintiff was required.

In the trial court the defendant, being an attorney, offered his own

affidavit as an expert that his conduct in the Maury County litigation complied

with the applicable standard of care. The plaintiff in response filed no affidavit

from an expert.

It is settled that: "In Tennessee, expert testimony is required to

establish negligence and proximate cause in malpractice actions unless the

alleged malpractice is within the common knowledge of laymen." Ayers v.

Rutherford Hospital, Inc., 689 S.W.2d 155, 160 (Tenn. App. 1984).

While the Ayers case dealt with medical malpractice, the same

requirements as to expert testimony are applicable in legal malpractice actions.

Cleckner v. Dale, 719 S.W.2d 535 (Tenn. App. 1986).

The plaintiff in this case thus cannot prevail without expert testimony

unless ". . . the alleged malpractice is within the common knowledge of laymen."

The complaint alleges in part:

11. The plaintiff Bursack avers that the defendant Wilson

advised him not to appear to defend at the Maury County,

Tennessee state court action since it was deemed that his

appearance would be useless and that it was a foregone

conclusion that he was going to lose that litigation.

12. Plaintiff further avers that the defendant attorney

Wilson felt that in his view that there existed a close

friendship between the attorney for Rally Hill and the judge

trying the case would make it virtually impossible for

Bursack to receive a fair hearing in Maury County,

Tennessee.

13. The plaintiff Bursack relied upon this decision of his

counsel, although Bursack was willing and able and wished

to appear to litigate the issues, particularly of fraud and the

false financial statements.
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14. The plaintiff Bursack further avers that had he

appeared and litigated this matter that the probabilities were

high that a judgment would have been returned in his favor

and he would not be looking at the $570,098.25 judgment,

along with interest, that has now been placed against him.

15. The plaintiff Jack Bursack further avers that the

defendant Wilson failed to properly consider the issue of

collateral estoppel on the fault issue and how it would impact

upon the Plaintiff Bursack.

16. The plaintiff relies upon the decision of the United

States Court of Appeals for the Sixth Circuit, which has been

attached as an exhibit hereto, to show that the defendant

Wilson should have foreseen that the issue of collateral

estoppel would have barred re-litigation in federal court on

this issue that had been raised and litigated in State court.

17. The plaintiff Bursack further avers that by allowing

this default judgment to be taken that it was conclusive by

way of estoppel to all issues, including the fraud, and

foredoomed his case from that point on, even though federal

appeals were taken and litigated.

In his affidavit of April 21, 1997, in opposition to the motion for

summary judgment previously filed by the defendant, Mr. Bursack states in part:

I do not know whether I could have prevailed had I gone to

trial in Maury County, but I certainly feel that I received bad

advice when I voluntarily allowed a fraud judgment to go

down against me. I have been involved in law enforcement

and have always been an honest citizen, and I never would

have voluntarily walked away from a court proceedings if I

had known that I was going to be found guilty of fraud. My

personal integrity and honesty are very important to me and,

while I feel that malpractice was also committed by Mr.

Wilson in telling me that I could simply re-litigate this in the

appellate and bankruptcy courts, that slightly more important

to me is the issue of a fraud judgment being obtained against

me. There is no question but that the bankruptcy court and

the appellate court rejected Mr. Wilson's interpretation of the

law, both upon this point and the allowing of a fraud

judgment to be entered against me I feel that I should prevail

in this particular law suit.

The only question before this court in this aspect of the case is whether

or not expert testimony on behalf of the plaintiff was required as a matter of law.

Clearly it was and in the absence of such expert testimony the trial court properly

granted summary judgment. Even if we view this affidavit as a claim that Mr.
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Wilson did not properly inform appellant of the effect of a default judgment, Mr.

Bursack must produce expert testimony to overcome a motion for summary

judgment. 

The complaint of the plaintiff questions tactical decisions made in the

Maury County litigation to allow default judgment to be entered against Bursack

in a complaint alleging fraudulent practices by Bursack. Plaintiff relies on the

opinion of the Sixth Circuit Court of Appeals in In re: Bursack, 65 F.3d 51.

This is the reported decision of the Sixth Circuit Court of Appeals in affirming

the preclusive effect in collateral estoppel of the Maury County judgment against

Bursack.

In re: Bursack, far from supporting the plaintiff on the question of the

necessity of expert testimony in this cause, clearly dooms the plaintiff on this

issue.

Said the court in Bursack:

Our inquiry is somewhat complicated by the discussion in

Spilman v. Harley, supra, of collateral estoppel in the context of a

bankruptcy proceeding. There, a panel of this court held that

"[c]ollateral estoppel requires that the precise issue raised in the later

proceedings have been raised in the prior proceeding, that the issue

was actually litigated, and the determination was necessary to the

outcome." Spilman, 656 F.2d at 228. The opinion went on to say that

"[i]f the important issues were not actually litigated in the prior

proceeding, as is the case with a default judgment, then collateral

estoppel does not bar relitigation in the bankruptcy court." Id.

(emphasis added). Thus, Spilman, at least arguably, created a brightline rule that default judgments can never have preclusive effect in

bankruptcy proceedings regardless of their treatment under relevant

state law.

Spilman did not, however, explain why an exception

to § 1738 should apply in this context. Thus, its continuing

relevance is questionable in light of the later Supreme Court

cases dealing with full faith and credit. Indeed, there exists

a split in the bankruptcy courts of this circuit on the issue of

whether these cases have abrogated Spilman's rule about the

effect of default judgments. Compare, e.g., Harris v. Byard

(In re Byard), 47 B.R. 700, 704-05 (Bankr. M.D. Tenn. 1985)

(Spilman rule no longer controls) with Ferguson v. Hall (In

re Hall), 95 B.R. 553, 558 (Bankr. E.D. Tenn. 1989)
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(Spilman rule still applies); see also Bay Area Factors v.

Calvert (In re Calvert), 177 B.R. 583, 585-86 (Bankr. W.D.

Tenn. 1995) (collecting cases on both sides of the issue).

In re: Bursack, 65 F.3d 51, 54 (6th Cir., 1995).

No amount of lay testimony can suffice in this malpractice case

criticizing the tactical decision to allow a default judgment to be entered in

Maury County in the hope thereby of being able to re-litigate the collateral

estoppel issue in a bankruptcy proceeding. In light of the above authorities, the

task of judging Spilman, and indeed judging the split of authority within the

Sixth Circuit as to the preclusive effect of default judgment in a state court on

collateral estoppel issues, lies not within the realm of lay knowledge but rather

mandates expert evidence. 

Thus it is that the sole issue on the merits of this case requires expert

testimony on behalf of the plaintiff and none appearing in the record, the

defendant was entitled to summary judgment, under the standards set forth in

Evco Corp. and Byrd, supra.

Defendant claims that the trial court erred in denying his motion to

dismiss the case under rule 12.02 of the Tennessee Rules of Civil Procedure

based upon the expiration of the statute of limitations. In light of the court's

order regarding the motion on other grounds, addressing that denial is

unnecessary here.

The appellee/defendant seeks costs and attorney's fees on the basis that

this appeal is frivolous under Tennessee Code Annotated section 27-1-122. The

application is well taken. The need for expert testimony in a legal malpractice

case has been well settled in Tennessee for a number of years. Indeed the

necessity for such was known by the plaintiff on April 24, 1997 as on that date

the plaintiff sought a continuance of a hearing on the motion for summary

judgment stating "the plaintiff seeks to secure a counter-affidavit from another

attorney and, accordingly, moves that the hearing on the motion for summary
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judgment be continued for approximately two weeks . . . ."

The order of the trial court granting this motion was entered on May 1,

1997 holding, in part, as follows:

The court was of the opinion that the expert-affidavit of the

defendant necessitates a counter-expert affidavit by the

plaintiff in order for the plaintiff to go forward with this

cause of action and accordingly should afford the plaintiff a

reasonable amount of time to produce such counter-affidavit

before ruling upon this motion for summary judgment.

It is therefore accordingly ordered, adjudged and decreed that:

1. The hearing of the motion for summary judgment is

hereby continued until the 23rd day of May, 1997 at 9:00

a.m.

2. The plaintiff shall file his counter-affidavit with the

clerk of the court before 4:30 p.m. on the 19th of May 1997

or this motion for summary judgment will be granted.

The only affidavit thereafter filed was that of the plaintiff himself, filed

on May 19, 1997.

On May 20, 1997 the trial judge sustained the motion for summary

judgment.

This appeal had no reasonable chance of success and is frivolous under

principles set down in Davis v. Gulf Ins. Group, 546 S.W.2d 583 (Tenn. 1977);

Liberty Mut. Ins. Co. v. Taylor, 590 S.W.2d 920 (Tenn. 1979) and Wilson v.

Ricciardi, 778 S.W.2d 450 (Tenn. App. 1989).

The action of the trial court in granting summary judgment to the

defendant is affirmed and the case is remanded to the trial court for assessment

of costs and attorney's fees in favor of the defendant under Tennessee Code

Annotated section 27-1-122.

 
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______________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

_________________________________

BEN H. CANTRELL, JUDGE

_________________________________

WILLIAM C. KOCH, JR., JUDGE