IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

July 26, 2012 Session

CARL BAKER v. ANTOINETTE WELCH

Appeal from the Circuit Court for Davidson County

No. 09C2220 Joseph P. Binkley, Jr., Judge

No. M2011-02601-COA-R3-CV - Filed August 17, 2012

Plaintiff in case alleging legal malpractice appeals the trial court’s grant of summary

judgment to defendant attorney. Finding no error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

RICHARD H. DINKINS,J., delivered the opinion of the court, in which PATRICIA J. COTTRELL,

P. J., M. S., and ANDY D. BENNETT, J., joined.

Carl A. Baker, Altamonte Springs, Florida, Pro Se.

Daniel D. Warlick, Nashville, Tennessee, for the Appellee, Antoinette Welch.

MEMORANDUM OPINION

1

I. BACKGROUND

This suit arises from a legal malpractice complaint filed on June 26, 2009 by Carl A.

Baker against his former attorney, Antoinette Welch, who represented him in his 2008

divorce. The trial court granted Ms. Welch summary judgment on February 17, 2010. Mr.

Baker filed a motion to set aside the entry of the summary judgment, and on March 22, 2010,

he filed a “motion for summary judgment retrial.” The court denied both of Mr. Baker’s

Tenn. R. Ct. App. 10 states: 1

This Court, with the concurrence of all judges participating in the case, may affirm, reverse

or modify the actions of the trial court by memorandum opinion when a formal opinion

would have no precedential value. When a case is decided by memorandum opinion it shall

be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited

or relied on for any reason in any unrelated case.
motions, and Mr. Baker appealed to this Court. In Baker v. Welch, No. M2010-01291-COAR3-CV, 2011 WL 1420871 (Tenn. Ct. App. 2011) we reversed the trial court’s order denying

Mr. Baker’s motions and remanded the case pursuant to Tenn. R. Civ. P. 59.02.

On remand, Ms. Welch renewed her motion for summary judgment and Mr. Baker

responded in opposition to the motion. The trial court held a hearing on the motion and

subsequently entered an order granting Ms. Welch’s motion for summary judgment. Mr.

Baker appeals.

II. DISCUSSION

Summary judgment is appropriate only if the “pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits...show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a

matter of law.” Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008) (quoting Tenn.

R. Civ. P. 56.04). When making such motion, the movant has the burden of either: “(1)

affirmatively negating an essential element of the nonmoving party’s claim; or (2) showing

that the nonmoving party cannot prove an essential element of the claim at trial.” Id. (citing

Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008)). If the movant meets its burden,

then the nonmoving party “is required to produce evidence of specific facts establishing that

genuine issues of material fact exist.” Martin, 271 S.W.3d at 84 (citing McCarley v. West

Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998)).

In accordance with Tenn. R. Civ. P. 56.03, Ms. Welch filed a Statement of Material

Facts with her motion for summary judgment. Included in the Statement was the following:

“The Defendant will not use an expert witness in the trial in this cause. (Scheduling

Order).”

2

The law in Tennessee is clear that expert testimony is required in a legal malpractice

action. As stated in Strong v. Baker:

It is well-settled law that, “[i]n a legal malpractice action, expert

testimony is required to establish negligence and proximate cause unless the

alleged malpractice is within the common knowledge of laymen.” Rose v.

Welch, 115 S.W.3d 478, 484 (Tenn. Ct. App. 2003). Only in cases involving

‘clear and palpable negligence’ can legal malpractice be determined without

The reference to Defendant rather than Plaintiff is an obvious error. The Scheduling Order stated 2

that “[b]y agreement of the parties . . . [t]he Plaintiff indicated he will not use an expert witness. . . .[t]he

Defendant will disclose her expert witness and Rule 26 expert witness statement by November 27, 2009.” 

-2-
expert testimony. Id. at 484 (quoting Cleckner v. Dale, 719 S.W.2d 535, 540

(Tenn. Ct. App. 1986)). Thus, except in extreme cases, if a defendant-attorney

presents expert proof that he or she did not breach the duty of care, the

plaintiff-client must present rebuttal expert proof that a breach of care did

occur in order to create a genuine issue of material fact. Bursack v. Wilson,

982 S.W.2d 341, 343-45 (Tenn. Ct. App. 1998).

Strong v. Baker, M2007-00339-COA-R3-CV, 2008 WL 859086 at *7 (Tenn. Ct. App. Mar.

31, 2008).

The order granting summary judgment recited in pertinent part the following:

The Court granted the Plaintiff’s Motion to Set Aside the Previous

Order Granting Summary Judgment and then heard the renewed Motion for

Summary Judgment which was supported by a Memorandum and Statement

of Uncontested Facts previously served on the Plaintiff. Although the Plaintiff

had not responded to the Defendant’s Statement of Uncontested Facts, the

Court carefully questioned the Plaintiff as to the correctness of those facts. .

. .

The Court then questioned the Plaintiff as to his agreement with the fact

that he would present no expert proof in the legal malpractice trial. While the

Plaintiff agreed that he would have to prove the standard of care and then a

deviation therefrom in order to prevail in the case at bar, he told the Court that

he would not be presenting any evidence, expert or otherwise, as to the

standard of care, and that he was unable to do so because all the lawyers and,

in fact, the Judge, took care of each other. . . .

Therefore, based upon the Plaintiff’s admission that he would present

no proof as to the standard of care and call no witnesses in regard to the

standard of care and whether or not it was breeched, the Court then determined

that the Defendant’s Motion for Summary Judgment should be granted, as

there was a showing that the Plaintiff would not prove an essential element of

his cause of action.

Expert testimony was an essential element of Mr. Baker’s cause of action against Ms.

Welch. The admission in the Statement of Material Facts, in the Scheduling Order and in

open court that Mr. Baker would not call an expert witness at trial meant, ipso facto, that he

would be unable to establish the standard of care, ultimately, that Ms. Welch committed legal

malpractice. In this circumstance, summary judgment was proper.

-3-
III. CONCLUSION

For the foregoing reasons, the order granting summary judgment to Ms. Welch is

AFFIRMED.

_________________________________

RICHARD H. DINKINS, JUDGE

-4-