# FILED December 17, 1998 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT O

F APPEALS AT KNO XVILLE

MALCOLM ELAM ) ANDERSON COUNTY ) 03A01-9805-CV-00165 Plaintiff-Appellant ) ) ) v. ) ) HON. JAMES B. SCOTT, JR., ) JUDGE STEVEN R. SEIVERS, ESQ. ) ) AFFIRMED IN PART; VACATED Defendant-Appellee ) IN PART and REMANDED

JERROLD L. BECKER and SAMUEL W. BROWN OF KNOXVI LLE FOR APPELL

ANT R. FRANKLIN NORTON, GEOFFREY D. KRESSI N and W. MITCHELL CRAMER OF KNOXVILLE FO

R APPELLEE

O P I N I O N

Goddard, P.J.

In this legal malpractice suit Malcolm Elam sues Steven R. Seivers, an attorney who he h ad em plo yed t o pr epar e war rant y and tru st d eeds on t wo s epar ate pie ces o f pr ope rty, alleging that h

e was responsible

for damages re

sulting to Mr. Elam

in failing to rec

ord the trust deeds. One tract is described as the Jonathan Lane property and the other as the Wainwright Road property. The warranty deeds convey

ed the two tracts t

o Terry R. F

owler and the tru

st deeds convey

ed them in trust to se

cure the purcha

se price owed Mr

. Elam.2 Mr. Elam’s principal contention on appeal is that Mrs. Seivers, who was Mr. Seivers’ secretary and was acting as his ag ent, agreed to record the instruments, but failed to do so, resulting in the loss of security as to the Jonathan Lane property when Mr. Fowler filed a pet iti on for b ankrup tcy.

The chronology of events necessary to the resolution of this dispute are as follows:

1. On or about August 22, 1995, while in the office of Mr. Seivers, Mr. Elam executed a warranty deed convey

ing the Jonathan Lane property to Mr. Fowler and Mr. Fowler executed a deed of trust to secure the purchase price.

2. Dece mbe r 5, 199 5, M r. Fo wle r fi led a vo lun tar y pet iti on for b ankrup tcy.

3. On or about December 14, 1995, while in the office of Mr. Elam, Mr. Elam executed a warranty deed convey

ing the Wainwright Road property to Mr. Fowler and Mr. Fowle r executed a trust deed securing the purchase price.

4. August 12, 1996, Bankruptcy Judge approved Mr. Fowler ’s waiver of discharge.

5. October 10, 1996, order of Bankruptcy Court confirming Tr ustee's interest in the Jon ath an La ne p rop ert y andden ying T rus tee 's in ter estin t he W ain wri ght R oadpro pert y.

6. Sep tem ber 2 0, 1 997 , sa le o f th e Jo nat han Lane pro pert y by Trust ee i n Ban kru ptc y.3 The Trial Court was of the opinion that under the undisputed proof Mr. Seivers was not guilty of any malfea sance which would entitle Mr. Elam to recover. As a result he entered a summar

y judgment f

rom which Mr. Elam a

ppeals, raising

the following issu

es:

I The Trial Court erred in dismissing Appellant’s action for legal malpractice on the ground that no contractual or other duty existed between the Appellant and the Appellee beyond the prepar ation and notarization of certain instruments by Appellee, where Appellee’s leg al secretary offered to rec

ord said instrumen

ts, and the Appella

nt agreed to same, and then the

legal secreta

ry subseque

ntly failed t

o record said instruments. II The Trial Court erred in granting Appellee’s Motion to Dismiss or in the Alternative Motion for Summary Judgment, as the parties disputed the existence of a contract for legal services between Appellant and Appellee, and the Affidavit of Appellee, wherein he opined that he had met the relevant standard of care, was irrelevant, as such Affidavit rendere d an opinion assuming f

acts which were

disputed between

the parties.
The standard of review as to summary judgment is stated in the case of Byrd v. Hall, 847 S.W.2d 208, 214 (T enn.1993), as fol

lows:
Rule 56 comes into play only when there is no ge nuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Thus, the issues that lie at the heart of evaluating a summary judgment motion are: (1) whether a factualdispute exists; (2) wh ether the dispute

d fact is materialto the outcome of the case; and (3) whether the disputed fact creates a genuineissue for trial.
It is undisputed that Mr. Seivers was not employed to formally close the transaction by recording the warranty deeds and trust deeds, and there is considerable proof that there was no understanding that Mr. Seivers or Mrs. Seivers would record the instrument. However, this pro

of is disputed by

the discovery

deposition of Mr. El

am, who testified r

elative to the Jonathan La

ne property

as follows:
Q Can you recall the conversation y ou had with Mrs. Seivers at the time that you and Mr. Fowler were together?4 A I believe that was the time that I asked about the recor ding of the documents. Q Thi s wo uld be fo r th e Jo nat han pro pert y? A Yes. Q And you had a conversation with Kathy Seive rs regarding the recording of th

e documents? A Yes. Q Was this sometime aft er the recorda

tion of the documen

ts -- excuse me -- after the e

xecution of the docu

ments? A Yes, it would have been. Q Wou ld i t po ssi bly h ave b een t he s ame day? A Pro bab ly. Q Pos sib ly? A Pos sib ly. Q You can’t recall, though? A No. Q Do you reca

ll signing or exec

uting the Jonathan p

roperty documents? A No. Q Do you recall whether Mr. Seivers, that is, Mr. Steve Seivers, was present when those documents were executed? A No. Q Do you recall whether Mr. Seivers was present when y ou had a conversation with

Kathy Seive

rs regarding

the recordation

of those documents? A He was not there. Q What conversation then did you have with Kathy Seivers re garding the recordation

of the documents. A I asked about recording, and she said, “No. We’re there every day. There’s no point in your going over there. You’ll have to make a special trip.” Q And anything else?5 A No. That’s it. Q Did someone pay her for the recordation of the documents at that time? A I don’t know. Q I apologize. I’ve heard what y ou recall as her end of the conversation. What was your end of the conversation? A I asked the que stion abou t recording. Q And the question wa s? A “No, we’re there every day .” Q You just said -- A “In the courthouse every day .” Q What was the questio n you asked M

rs. Seivers? A “Should I record these documents, or can y ou take care of it?” And she said, “No, you don’t record them.”
We accordingly find that as to the Jonathan Lane prope rty there is a material dispute of fact relative to an agreement to record the instruments and vacate the summary judgment entered with regard thereto.

As to the Wainwright Road property, there is tenuous proof from Mr. Fowler that he paid what he assumed was recording costs to Mrs. Seivers in connection with this property
. However, as alr

eady noted

, this property

was never in the b

ankruptcy estate, and Mr. E

lam did not lose this property as security for the purc hase price. It would appear that Mr. Elam suffered no d ama ges a s a r esu lt o f th e fai lur e to reco rd t he trus t de ed as to t he W ain wri ght R oadpro pert y, except, perhaps, attorney fees he might have incurre d in opposing the bankruptcy petition. However, it would

seem that he would

have incurred p

ractically the same attorne

y fees in opposing the Bankr

uptcy T rustee’s position in

connecti on with the

Jonathan L

ane Prope rty. We are disinclined to disturb the Trial Court’s grant of summary judgment insofar as it aff ects the Wai nwr ight Roa d pr ope rty.6 For the foreg

oing reasons the

judgment as to the

Jonathan Lane

property is vacated and as to the Wainwright Road property affirmed a nd the cause remanded for further proceedings no

t inconsistent with th

is opinion. Costs of ap

peal are adjudg

ed one-half ag

ainst Mr. Elam and his sur

ety and one

-half against M

r. Seivers.

_______________________________ Houston M. Goddard, P.J.
CONCUR:

________________________________ Hersc hel P. F ranks, J.
(Not Participating) Charle s D. Susano, Jr

., J.