# FILED

July 10, 1998 Cecil W. Crowson Appellate Cou rt Clerk JACK WAYNE BURSACK, ) ) Plaintiff/Appell

ant, ) 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-2- 

# OPINION

In this case plaintiff

Jack Wayne

Bursack sues defenda nt 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, a gainst Jack Way ne Bursack and other

s alleging false representations

and thesubmission of false financial state ments by Bursack and others upon which Rally

Hill reasonably relied. Defendant Lawrence D. Wilson answered and cros s-claimed on be half of Bursack.

When the Maury County case cam e on for trial on Februa

ry 3, 1993, Bursack did not appear. From the record this strategy seems to have been based upon the result obtained i n Spilman v. Harvey , 656 F.2d 224 (6thCir. 1981), in which a petit ioner was allowed to relitigate, in federal court, issues which had been previously determined in state court vi a default judgment. In the case at bar, default judgm

ent was entered a

gain s t Mr. Bursack and his co-defendant based upon a jury verdict fi ndi ng fraud. Judgm ent was in the am

ount of $570,098.25 inclusive of $100,000. 00 in punitive damages a ssesse d by the ju ry.

On May 28, 1993, B ursack filed a peti tion for relief unde

r Chapter 7 of the Federal Ba

nkruptcy Code; a

nd on August 30, 1993, Ral ly Hill instituted it s ac tion in the bankruptcy court to determ

ine the dischargeab

ility of the $570,098.25 judgment. T he bankruptcy co

urt granted summ

ary judgm

ent in favor of Rally Hill,

holding that th e Maury County judgment was

not dischargeable

in bankruptcy. Bursack

appealed first

to the United States District Cou rt of th e Middle District of Ten nessee, In Re Bursack , 163 Bank. 302, (Bankr.M.D.Tenn.1994), andthen to the Sixth Circuit Court of Appeals, In Re Bursack , 65 F.2d 51 (6th Cir. 1995), with both of these courts holding tha

t the Maury County judgm

ent on the issue of fraud had pr

eclusive effect i

n the Federal Bankruptcy Court and the Maury County judgment was thus nondischargeable.

The decision of the

United States Sixth Circuit Court of Appeals was-3-

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 dism iss based upon

the expiration of the

statute of limitations w

as denied on Novem

ber 19, 1996.

After further proceedi

ngs, the Circuit Cou

rt for Davids on Coun ty, Tennessee on May 28, 1997, granted summary j udgment for defendant Lawrence D. Wilson and pla

intiff 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 forthin Byrd v. Hall, 847 S.W.2d 208 (Tenn.1993); a

nd Evco Corp. v. Ross , 528 S. W.2d 20 (Tenn.1975). W e must view the

evidence taking the s

trongest legitimate view in favor of the nonm oving party, all

owing all reasonabl

e inferences from the evide nce in his favor , and discarding all co untervailing 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 ther e is uncertainty

as to whether ther

e may be suc

h adispute, the duty of the t rial co urt is c lear. he is to ov errule a ny m otio n for summary judgm

ent in such cases, because summary judgment proceedings are not in any sense to be viewed a

s a substitute for a tria

l of disputed factual

issues. Evco Corp. v. Ros

s , 528 S.W.2d 20, 24 (Tenn.1975).

The court o f appea ls on ap peal fro m summary judg ment by t he tri al courtis bound by the same rules. Gray v. Amos , 869 S.W.2d 925 (Tenn. App. 1993).
The only issue pr esented for revie

w by the appella

nt asserts: Whether the trial court er

red in granting the de

fendant 's motion for summa

ry judgme

nt si nce there was a genuine issue of material fa

ct a s to the advice given to the plaintiff Jack Bursack to allow

a summar

y judgment

(default?) to

be-4- entered against him in the underlying civil a

ction in Maur y County, Tennessee.

The resoluti on of th is issue depends upon whether or not expert testimony on behalf of the plainti ff was required.

In the trial court the defendant, being an at to rney, offered his own affidavit as an expert

that his conduct in the Maury County litigation complied withthe applicable stand ard of care. T

he plaintiff in response

filed no affidavit from an exper

t.

Itis settled that: "In Tennessee, expert testi mony is requ

ired to establish negligence and proxim ate cause in ma

lpractice actions unless the alleged malpractice is wi t hin the common knowledge of laymen." Ayers v. Rutherford Hospital, Inc. , 689 S.W.2d 155, 160 (Tenn. App. 1984).

While the Ay e rs case d ealt w ith med ical ma lprac tice, the sa me requirements

as to expert testimony are applicable in legal malpractice

actions. Cleckner v. Dal

e , 719 S.W.2d 535 (Tenn. App. 1986).

The plaintiff in this case thus cannot prevail without expert test

imony unless ". . . the alleged m

alpractice is

within the common knowledge of laymen."
The complaint alleges in part: 11. The plaintiff Bursack avers that the defendant Wi

lson advised him n ot to appear t o defen d at the Maury Cou nty, Tennessee state court action s ince it was deem

ed that his a ppearanc e would be useless and t hat it was a foreg

one conclusion that he wa

s going to lose that litiga

tion. 12. Plaintiff

further avers tha

t the defendant attorney Wilsonfe lt that in his view tha t there existed a cl

ose friendshipbetween the attor ney for Rally

Hill and the judge tryingthe case would m ake it virtuall

y im possible for Bursack to receive a fair hearin g in Mau ry Count y, Tennessee. 13. The plaintiff Bursack relied upon

this decision of his counsel, although Bursack wa s willing and able

and wished to appear tolitigatethe issues, partic ularly of fra

ud and the false financial st

atements.-5- 14. The plaintiff Bursack fu rther avers that had he appeared and litigated this m atter that the

probabilities were high that a judg ment would have been returned in his favor and he wou ld notbe looking at the $570,0 98.25 judgment

, alon g with inter est, t hat ha s now b een pl aced a gain st hi m. 15. Th e pl aintiff Jack Bursa ck further avers t

hat the defendant Wilson failed to properl y consider the issue of collateral estoppel on the

fault issue and how i

twould impact upon the Plaintiff Bu

rsack. 16. The plaintiff relies upon the decision of th e United States Court of Appeals

for the Sixth Circuit, which has been attached as an exhibit hereto, to s how that the defendant Wilson shou ld have foreseen that the issue of collateral estopp el would have barred r e-litigation in fede

ral court on this issue that had bee

n raised and litigate

d in State court. 17. The plaintiff Bursack further av ers that by allowing this defaul t judgment to be taken that it was c

onclusive by wa y of estoppel to all issues, including the fra ud, an d foredoomed

his case from that

point on, even though federal appeals were tak

en and litigated.

In hi s affidavit of Apr

il 21, 1997, in oppositio n to the mot

ion fo r summary judgment prev

iously filed by

the defendant, Mr. Bursack states i n part: I do not know whether

I could have prevailed had I

gone to trial in Maury County, but Icertainly feel that I received bad adv ice when I voluntarily allowed a fraud j udgment to g o down against me. I havebeen involved in law e nforcement and have always be

en an honest citizen,

and I neve

r woul d have voluntarily

walked away

from a court p

roceedings if

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

and honesty are very

important to m

e and, whileI feel that malpractice was also comm itted by Mr. Wilson in telling me that I could simply re-litigate this

in the appellate and bankruptcy c

ourts, that slightly

moreimportant to me is the issue of

a fraud judgm

ent being obtained against me. There is no question but that the bankruptcy court and the appellate court rejected Mr. Wilson's interpretation of t he law, both upon this point and the allowingof a fr aud judgment to be entered agains

t me I feel tha

t I should prevail in this particular la

w suit.

The only question befo

re this court in this aspect o f the case is whether
or not experttestimony on

behalf of the plaintiff was requ ired as a matter of law. Clearly it was and in the absence of such expert testim

ony the trial cou

rt properly granted summary

judgment. E

ven if we view this

affidavit as a cla

im that Mr

.-6-

Wilson did not properly inform appellant of the effect of a default judgment, Mr. Bursack must p rodu ce exp ert te stimo ny to o verco me a mo tion for summary judgment.

The complaint

of the plaintiff que stions tactical deci sions made in the Maury County

litigation to allow

default judgment to be entered against Bursack in a complaint alleging fraudulent practices by Bursack. Plaintiff r elies on the opinionof the Sixth Circuit Court of Appe als in In re: Bursack , 65 F.3d 51. This is the reported dec

ision of the

Sixth Circuit Court

of Appeals in

affirming the preclusive effec

t in collateral esto

ppel of the Maury

County judgm

ent against Bursack.

In re: Bursack , far from suppo rting the plaintiff on the quest

ion of the necessity of expert tes tim ony in this cause, clearly doom

s the plaintiff on this issue.

Said the court in Bursack :

Our inquiry is s omewhat com plicated by the di scussion in Spilman v. Harley, supra , of collateral es toppel in the context of a bankruptcy proceeding. There, a panel of this court held that "[c]ollateral

estoppel requires th

at the precise issue

raised in the later proceedings have been raised in the prior pro ce eding, that the issue was actually litiga

ted, and the deter

mination was ne

cessary to the outcome." Spilman , 656 F.2d at 228. T he opinion went on

to say that "[i]f the important is sues were not actua lly litigated in th

e prior proceeding, a s i s the case with a defaul t judgment , then collateral estoppel does not bar rel it igation in the bankruptcy court." Id. (emphasis

added). Thus, Spilman , at leas t argua bly, created a brightline rule that default judgments can never have prec lusive ef fect in bankruptcy proceedings re gard less of their trea tment under re

levant state law. Spilman did not, however, explain why an e

xception to § 1738 should apply in t his context. Thus,

its continuing relevance is questionable in lig ht of t he lat er Sup reme Court cases dealing with f

ull faith and credit. Indeed, there ex ists asplit in the bankruptcy

courts of this circu

iton the issue of whether these cases have a

brogated Spilman's rule about the effect of default judgments. Compare, e.g., Harris v. Byard (In re Byard), 47 B.R. 700, 704-0 5 (Bankr. M.D.

Tenn. 1985) ( Spilman rule no longer controls) with Ferguson v. Hall (In re Hall) , 95 B.R. 553, 558 (Ban kr . E.D. Tenn. 1989)-7- ( Spilman rule still applies); s ee 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 m alpractice cas e cri ticizing the tactical decis ion to allow a defau

lt judgment to be

entered i n Maury County in the hope thereby of being able to re- li tigate the collateral estoppel issue in a

bankruptcy proceeding

. In light of the above a uthorities, the task of judging Spilman, and indeed ju dg ing the split of authori ty within the SixthCircuit as to the pr

eclusive effect o

f default jud

gment in a state court on collateral estoppel issues, lies not wit hin the realm

of lay knowledge but rather mandates expert evidence

.
Thus it is that the

sole issue on the m

erits of this case requires expert testi mo ny on behal f of the plaintiff a nd none appearing in the record, the defe nd ant was entitled to sum

mary jud gment, under th

e standards set for

th in Evco Corp . and Byrd , supra.

De fe ndant

claims that the

trial court erre

d in denying his m

otion to dismiss the case under rule 12.02 of the Tennes see Rules of Civil P roc edur e based upon the expiration of the statute of limitations. In light of the court's order regarding the m

otion on o ther gro unds, addressing that denial is unnecessary here.

The appellee/defenda

nt seeks costs and

attorney's fe

es on the basis that this appeal is frivolous

under Tennessee Code An notated section 2 7-1-122. The application

is well taken. T

he need for expert testimony in a legal malpractice
case has been we ll se ttled in Tennessee for a number of years. Inde

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

h t 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 m

oti on for su mmary-8-

judgment be continued fo r approximately two weeks . . . ."

The order of the trial

court granting

this motion was e

ntered on May 1, 1997 holding, in part,

as follows: The court was of the opinion

that the expert-af

fidavit of the defendant necess itates a count er-exp ert affi davit b y t h e plaintiff in order for the pla

intif f to go forward with this causeof action and accor dinglyshould afford the plaintiff a reasonable

amount of time to produce such counter -affidavit before ruling upon this

motion for sum

mary jud gment.

It is therefore a

ccordingly orde

red, adjudged and

decreed that: 1. The hearin g of the motion f or summary j udgm ent is hereby continued until t

h e 23rd day of Ma

y, 1997 at 9:00 a.m. 2. The plaintiff shall fil e his counter-aff

idavit 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 reason able chance of

success and is frivol

ous 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 grant ing summar

y judgment

to the defendant is affirmed a

nd the case is rem

anded to the trial court for as sessment of costs and attorney 's fees in favor of the defend antunder Tennessee C ode Annotated section 27- 1-122.-9- _ _ ___________________________ _ WILLIAM B. CAIN, JUDGE

CONCUR:

_________________________________ BEN H. CANTRELL, JUDGE

_________________________________ WILLIAM C. KOCH, JR., JUDGE