# FILED
October 30, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON

JOY DAWK INS ROY a nd S AM ) D. DAWKINS, et

ux, ) ) ) Plaintiffs/Appellees, ) Madison Circuit No. 61907 T.D. ) VS. ) Appeal No . 02A01-9809-CV- 00247 ) W. T. DIAMOND , JR., ) ) ) Defendant/Appellant. )
APPEAL FROM

THE CIRCUI T COURT OF MADISON COU NTY AT JACKSON, TENNESSEE THE HONORABLE J. STEVEN STAFFO RD, JUDGE

LLOYD R. TATUM TATU M & W EIN MAN Henderson, Tennessee Attorney for Appellant

J. HOUSTON GORDON Covington, Tennessee Attorney for Appellees

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

AWFORD, P.J., W.S . DAVID R. FA

RMER, J.1 As a result of his acti ons in handl ing the est ate of Jenni e Ida Buck, Mr. Di amond was the subject of a Petit ion for Di scipli ne brought by the Board of Pro

fessional Responsibil ity . A Hearing Panel made various finding s of fact, and recommended that Mr. Diamond be disbarred.The only issue raised by the disciplinary proc eed ing re lates to its u se as evide nce in Dia mo nd’s ma lprac tice s uit
. 2 In this legal

malpractic

e case, W.T. Diamond Jr. appeals from a jury v erdict entered against him in the Circuit Co urt of Madison County awarding p l aintiffs Joy Dawkins R oy and Sam D. Dawkins $68,800 in compensatory damages and $25,000 in puniti ve damages.

Facts and Procedural His tory This case involves cl aims against W.T. Diamond Jr. (“Diamond” or“Appellant”) arising from Dia mond’s r ole as ex

ecutor a nd attor

ney for the esta

te of Jenni e Ida Buck (“Buck” or “Deceas ed”). The proceed ings wh ich are per tinent to this appeal took place
over several years i n both the probate section of the General Sessions Court of M adison County and the Madison County Circuit Court, as well as a disciplinary proceeding against Diamond conduct ed by the B oard of P rofessi onal Resp onsibili ty. 1
I. Probate Court Proceedings The long and confusing history of this case began with the death of Jennie Ida Bu ck
o n Mar ch 21, 1992. Buck left a hologr aphic will in w

hich, among other things, she appointed Diamond as executor. On April 10, 1992, Diamond admitt ed Buck’s will to probate in common fo rm and was issued le tters testame ntary. Following a three y ear period of alleged inaction and misu se of est ate fun ds, Sam Da wkins, a na med ben eficiary, f iled a p etition in probate court see king to remove Diamond as executor. The petition alleged, in ter alia , t hat Diamond had notified none of the estate’s heirs of the probate proceed ings, fil ed no inventory of the estate , failed to maintain the residenc e, and misap propriate d the estate’s funds. In May 1995, administrators of the estate of Earl Dawkins, also a named beneficiary, filed a moti on to compel inventory and ac counting against Diamond. An accounting rev ealed that Diamond had made approximately $60,100 in disbursements to

h is law firm from the estate of the deceased without approval of the probate court. The probate court ordered Diamond to reimburse the estate. After several failed attempts at r

eimbursement , Diamo nd eventu ally tendered a cashier ’s check in an2 Roy was the ni ece of the deceased. 3

amount sufficient to repay the estat e for money he had removed.

In July 1995, the petit ion to rem ove Diamo nd as exec utor wa s g ranted, and Sam Dawkins and Joy Roy (“Co-administrators” or “Plaintiffs”) were appointed as coadministrators of Buck’s estate. 2 Diamond subsequently fil ed a petition, to which th e new co-admi nistrato rs excepted, seeking fees and ex penses for his services rendered. In March and April 1996, hearings were held in the probate c ourt, at whi ch time t he coadministrators so ught payment of $13,317.50 in attorney fees and $17,566.50 in administrators fees. They also asse rted that Di amond should reimburse the estate for fees and expenses incurred by the co-administrators in trying to get Diamond to account for his receipts and disbur sements.

On August 21, 1996, the Probate Court issued a memorand um opinion, which indicated that the fees Diamond claimed w ere excessive and the time upo n which he based his fees was wastef ul. As to the fees claimed by both parties, the probate court stated, “the fees to which the executor ( i.e. , Diamond) would have been allowed by the court for services rendered t o the estate would be

approximately equal

to that incurred by the personal representatives and their attorney, so that there is no recovery by either party
on that issue.” The opinion further stated, “[t]he c ourt makes no finding as to damages incurred b y the e state due to the alleged malfeasance of the Executor and the resulti ng waste and deterioration cost thereby, since it is the subject of a separat e action pending in the Circuit Court of Madi son County, Tennessee.” The probate court entered an order of final judgment on February 27, 1997.

II. Circuit Court Pr

oceedings In April of 1995, Sam Dawkins and Eliz abeth Dawkins commenced a pro se action against Diamond in Madison County Circuit Court for damages resulting from his failure to perform his duties as attorney and e xecuto r for Buck’s estate. Subseq uently, on October 18, 1995, Jo y Roy and Sam Dawk ins commenced a legal malprac tice action3 This figur e represents t he amount of the tot al judgment, $93 ,800, minus the puni tive damages aw ard of $25,000 and the a ward of $36,000for attorney’s fees and administr ator’s f ees incurred by

the p laintiff s in the executi on of the esta te. 4 against Diamond

fo r “mal feasance” in his capacity as attorney and executor for Buck’s estat e. Diamond sought dismissal of the second case because the previous pro se sui t against him was stil l pending.

On August 14, 1997, an order was entered non-suiting the first circuit cour

t action. On that same date, the court denied Diamond’s mot ion to dismiss the second action. The second action wen t to trial a nd a jury a warded t he plaintiffs $68,800 in compensat ory damages and $25,000 in pu nitive damag es. Diamond filed a motion for a new trial claiming, inter alia, that the court erred in faili ng to dismiss all cla ims for damages for “additional fees and expense charged to the est at e of Jennie Ida Buck” because such claims were previously litigated before the probate court. Alternatively, Di amond asked that the Circuit Court reduce the award to $32,800. 3 Diamond’s motions were denied and he appealed to this court pres enting the following i ssues for determination: 1) Whether the trial court erred by r ef using to dismiss the plaintiffs’ damage clai m for additional fees and expense charged to the estate of Jennie Ida Black. 2) Whet her the trial court erred i n denying Diamond’s moti on to dismiss for p rior suit pending. 3) Whether the trial court erred i n permitting plaintiffs’ counsel to introduce into evidence the findings of fact and judgment from a professional responsibil ity disciplinary proceeding. 4) Whether the punitive damages award w as supported by

the evidence. Law and Analy sis I. Damage claim f

or administration fee

s and attorney fees The jury awarded the pl aintiffs $68 ,800 in compensatory damages, which were broken down into two components. Thirty-two thousand dollars ($32,000) re presen ted damages for the “deterioration and waste of the assets of Jenn ie Ida Buck” caused by the Defendant, and $36,000 was awarded for da mages “ resulting from additional fees and expense charged tothe Estate of Jen nie Ida Buck.” It is the latter amount of $36,000 which the Appellant challenges. Appellant claims that the trial cou rt erred in allowing the5

juryto consider the

plaintiffs’ claim for additional fees and expenses. Appellant argues that this issue was fully litigated in the probate court and was, therefore, barred by either res judicata or collateral estoppel.

The Tennessee Supreme Court described res judicata and its related counterpart, collateral estoppel, as follows:

The doctrine of res judi cata bars a second suit between the same parties or their priv ies on the same cause of action with respect to all issues

which were or could have been litigated in the former suit. Collateral estoppel operates

to bar a second suit between the sa me p arties and their priv ies on a different cause of action only as to issues which were actually li tigated and determined in the former suit. Goeke v. Woods , 777 S.W.2d 347, 349 (Tenn.1989 ) (quoting Massengill v. Sc ott , 738 S.W.2d 629, 631 (Tenn.1987)).

Res judicataand collateral estoppel appl y only if the prior judgmentconcludes the rightsof the parties on the merits. A.L. Kornman Co. v. Metrop olitan Gov't of Nashvi lle & Davidson County , 391 S.W.2d 633, 636 (Tenn. 1965). A party defending on the basis of
res judicata or collateral estoppel must demonstrate that: 1) the judgment in the prior case
was final and concluded the rights of the party against whom the defense is asserted, a nd 2) both cases involve the same parties, the same cause of acti on, or identical issue s. Richardson v. Tennessee Bd. of Dentistry , 913 S.W .2d 446 (Tenn . 1995) (citing Scales v. Scal es , 564 S. W.2d 667, 670 (Tenn. App. 1977). In this regard,the only issue raised before this court is whether the decision of theprobate court regarding “fees and expense” was identical to the claim in the circuit court f or “additional f ees and expense .” Although the use of the words “fees and ex pense” may imply that

the answer is yes,this question does not turn on the choice of lang uage.

The Tennessee Supreme Court, in King v. Brooks , stated that "[u]nder the doctri ne of collateral estoppel, w hen an issue has been actually and necessarily determi ned in a former action between th e parties, that determination is conclusive upon them in subsequent

litigation." 562 S.W.2d 422, 424 (Ten n. 1978) (citing Shelley v. Gipson , 400 S.W.2d 709 (Tenn. 1966); See also A.L. Kornman Co. v. Metropolit an Gover nment of6

Nashville and Davidson County , 391 S.W.2d 633 (Tenn. 1965). In thepresent case, the probate court ent ertained two issues that are relev ant to this appeal. First, Diamond had filed a petition seeking

fees and expenses he incurred as the executor and attorney for the estate of Jenni e Ida Buck. Also, the new co-administrators filed a motion seeking reimbursement

of $21,522 in fees and expenses from Diamond, as well as additional fees that would be incurred as a result of Diamond’s alleged malfeasance. On the issue of fees and expenses due both parties, the probate court stated:

1. The Petition for Fees and Expenses f il ed by W.T. Diamond, Jr., and the Motion for Reimbur sement of Fees and Expensesfiled by the current Co-Admi nis trators are each hereby granted in part and denied in part. The Court holds, in accordance with its Memorandum Opi nion, that the amount of fees and expenses t o w

hich Mr. Diamond i

s entitled and the amount of fees and expenses as to which the current CoAdministrators

are entitled to reim

bursement are the

sameand that said sums should be set off , one against the other, w ith neither party entitled to

additional recovery on theirrespecti ve petition and/or motion. 2.The Excep tions to Accounting filed by the current CoAdministrators are disposed of as follows:( a)to the extent that said Exceptions to Accounting constitute cla im s for damages that are the subject of a separate action pending in the Circuit Court of Madis o n County, Tennessee, this Court declines herein to make a ru ling on th e same , findin g that the Circuit Court is the app rop riate forum for those claims to be determined;(b)in all other re spects, the Exceptions to Accounting are denied and dis missed. (emphasis added).
The appellees characteriz e the $36,000 as damages that resulted from Diamond’s malfeasance in his role as executor and attorney

. Through this characteri zation, appellees argue that the $36,000 judgment is not barred because the pr obate court specifically

made
no finding asto damages. This is undoubtedly a true s tatement of what the probate court said. It is also true

that the $36,000 was meant to cover damages caused by Diamond’s malfeasance. However, those “dama ges” come

in the form of fees and expenses incurred bythe co-administrators and thei r attorney. In fact, the per tinent jury interrogatory uses the words“fees and expenses.” Ther e can be little doubt that the $36, 000 was awarded to compen sate the plaintiffs for fees and expenses. The question is whether the probate decision foreclosed the ability of the plaintiffs to recover any fees and expenses, or rather,4 Diamond repaid the $60 ,100 he took out of estate f unds. 7 did t he prob ate decision only foreclos e their ability to r

ecover a portion of their fees and expenses. If the answer i s the latter, then no preclus ion doctrine will apply.
The difficulty of this issue li es in the less than clear l anguage used by the probate court. As such, we are left to interpret the Memorandum Opini on and Final Order of the probate court in order to decide this issue. We regard the proba te c ourt decision as fashioning a remedy which basica lly maintained the status quo. In other words, we read the decision as recogniz ing that certain things have to be done in the execution of an estate, and the estate should have to pay for those services. In performin g their du ties, the personal representativ es and the attorney

inc ur expenses and earn fees from the estate. Had Diamond done his duty,he would have beenentitled to reasonable fees and expense s. Since he did not perform the duties, the new co-administrators and th eir attorne y h ad to perform the duties requir ed in executing the estat e. Since those duties would have to ha ve been performed anyway, the estate is no worse off for having to p ay. This can be referred to as the nor mal expenses involv

ed in closing an estate.

At this point, we wish to emphasize certain facts of this case. Diamond was nev er paid any money by the estate of Jennie Ida Buck. 4 T he co-administrators asked the probate court to make Diamond pay them for their services. If this had been allowed, Diamond would have been forced to pay the normal

expenses incurred in closin g th e estate of Jennie Ida Buck, while the estate would never hav e paid anything to any one. Therefore, as we perceive the r ecord, the onlyissue dealt with by the probate court was the question of who pays the normal expenses involved in closing the estate. The answer to that question has to be that the estate pays.
NancyChoate, the attorney for the estate after Diamond, alleged that she incurred fees and expenses of $7,522. The co-admini strators, Sam Dawkins and Joy Roy, alleged fees and expenses totaling $14, 000. We regar d this total amount of $21,522 as the amount which the probate court set off against the fees and expenses to which Diamond5 The circuit court adoptedthis same posit ion and grant ed a motion for summary judgmentfindi ng that the issue of the $21 ,522 wa s barred by res judic ata.

6 This is based on t he belief that someone had to do t he work, and whe ther it was Diamond or someone else, they

would have been ent itl ed to recover an amount close to t he $21,522.

7 By using t he word “damages,” we in dicate monies expended over and above that which would have been expended in t he normal course of execut ing the est ate. 8 would have been entitled had he performed his duties. 5 We point out that no “dama ges”
are involved because, pr esumably, the $21,522 i n f ees and expenses would hav e been incurred anyway. 6

It appears that the probate court i ntended its decision to go n o further than thi s point. After having disposed of the issues relating to the fees and expenses incurred in the normal course of executing the estate, the probate court l eft the issue of “damages” to the circuit court 7 (“to the extent that said exceptions to accounting constitute claims for damages . . . this court decli nes herein to make a r uling on the same, finding that the Circuit Court is the appropriate forum for those claims to be det ermined”). As the circuit court correctly determined,the only issue for the jury was

whether the plaintiffs sustai ned any damages in excess of

the $14,000 for Sam Dawkins and Joy Roy, and $7,522 for Ms. Choate.
Having determined

that the issue of damages was correctly submitted t

o the jury, we turn to the

question of

whether the verdict

was supported by the ev idence. Forrester
v. Stockstill , 86 9 S .W. 2d 328, 329 (Tenn. 1994)(when r eviewing a judg ment based on a juryverdict, appellate courts are limited to determining whether there is material evidence to support the verdict); See also Electric Power Bd. v. St. Joseph Valley Stru ctural Steel Corp. , 691 S.W.2d 522, 526 (Tenn.1985); Crabtree Masonry Co. v. C & R Constr., Inc. , 575 S.W.2d 4, 5 (Tenn.1978). Ms. Choate testified that she was paid over $20,000 in fees. Of this amount, she testified that appr oximately $1 3,500 deriv ed from issues relating to Diamond’s malfeasance. According to Ms. Choate , had Diamond performed his duties
as executor and attorney, the estate w ould not hav e incurred the additional amount of expenses and fees. Ms. Choate a lso testifi ed that the co-administr ators wer

e paid some $20,000 more than they would have been paid absent Diamond’s actions in handling the8 Appellees asser t in t heir bri ef that t he Ap pellant , acti ng pro se , suggested t he two acti ons be consolidat

ed in order t

o solve any

procedural problems. All egedly, an order was drawn up to that effect, but Diamond never sig ned. Appellees ar gue that t his, not

withst an ding Diamond’s failure to sign the order, operated as con sent on the part of Diam ond to the non-su it of the first actio n. Although we fi nd in favor of the appellee s on this iss ue, we d o not do s o base d on this a rgum ent.

9 The T ennes see R ules of C ivil Procedu re replac ed "pleas in abatem ent" with "m otions for dismis sal." See T.R.C iv.P. 7.03, 41 .02. 9 estate. The testim on y of Sam Dawkins indic ated that he and Joy Roy i ncurred approximately $36,000 in fees and expenses over and abov e the $14,000 they

requested in the probate court. Taking the strongest l egitimate view of the evidence in favor of the verdict, assuming thetruth of all that tends to suppor t it, allowing

all reasonable inferences to su stain the verdict, and discardi ng all to the contrary , Crabtree , 575 S.W.2d at 5, it is clear to us that the jury verdi ct in this case was s upported by material evidence. We find no error in the jury

verdict as it rel ates to the $36,000.

II. Prior suit pending The appellant also argues that the Circuit Cour

t erred i n denying his motion to dismiss on the basis of prior suit pendi ng. This argument is based on the fact that the pro se action was

still pending when the second action was filed. In essence, both claims were pending at the same time. Appellees respond by poi nting out that the original action was non-suited, thereby curing any technical problems. 8

Initiall y, Appellant’s argument appears persuasive. The

Tennessee Supreme Court has addressed the is su e of prior suit pending and seems to fashion the doct rine in such
a way so as to encompass the present case. See Cockburn v. Howard Johnson, Inc. , 385 S.W.2 d 101 (Tenn. 1964) (stating tha t “[i]n Tennessee, a suit is subject to a plea i n abatement 9 where there is pending another suit on the s ame subject.”). The court w ent on to enumerate the factors that must ex ist in order for a plea in abatement to lie: The essentials of such a plea are that t he two suits must involve the identic

al subject m atter and be between the s ame parties and the forme r suit must be pending in a court in this state having jurisdiction of the subject matter and the parties. A plea, whether it be in abatement or in bar, mus t con tain these elements. Id. at 102 (citingHiggins &Crownover, Tennessee Procedure in Law Cases, Sec. 518(6)).10

In the present case, the subject matter of both circuit court c ase s was identical. Bot h cases were, in effect, malpractice cases against Diamond arising out of h is performance as administrator and attorney for the estate of Jennie Ida Buck. Also, both actions were in the

same court, with that court havi ng jurisdiction ov er the parties and the subject matter. One seemingproblem is the fact that the plaintiffs in the two cases were differe nt. In the first case, Sam and Elizabe th Dawkins were the plaintiffs, while Sam Dawkins and Joy Roy were the plaintiffs in the second case. E ven though the plaintiffs are not identical in both cases, we consider them sufficiently similar so as to make no practical difference. See Cockburn , 385 S. W.2d at 102 (“The def endants in these two cases are not identical but are in effect the s ame”).

If we were to st op here, it might ap pear tha t Appella nt’s argum ent has va lidity. However, we are persuaded that taking the non-suit in the first circuit court action avoided the bar impose d by the doctrine o f prior suit pen ding.

At common law, a plaintiff could not avoid the effect of a pl ea in abatement by discontinuing the prior action. Walker v. Va n diver , 181 S.W . 310 (Tenn. 1 915) (citing 1 C ORPUS J URIS , p. 94, § 132)(“The rule at c ommon law was to sustai n the plea if it was true at the time it was filed”) . However, the holdi ng of early Tennessee cases i s that discontinuance of the prior suit is sufficient to avoid any problems, regardl ess of whether the discontinuance came before or after the filing of the plea. Id. ; See also Harris v. Penn. Nat. Hardware Mutual , 7 Tenn. App. 330 (Tenn. App. 1928); Stoll v. United States Fid. & Guar. co. , 10 Tenn. App. 539 (Ten n. App. 19 29). The Tennessee Supreme Court, in rejecting the common law rule, stated: it is manifest from the

authorities above referr ed to thatit has never been recognized by thi s co urt as a rule of law bindi ng upon the courts of this state, and it is a rule of l aw opposed to the policy of our legisl ation in respect of remedial actions, and opposed to the general spirit of our legislation w hich seeks to have all controversies determined upon theirmerits rather than upon the technicalities of the formal procedure of the common law. Walker , 181 S.W. at 311.11

In th e present case, the first ci rcuit court action w as discontinued by the or de r entered on August 15, 1997. The dismissal of the first ac tion prior to the trial of the s econd actio n was su fficient to avoid any technical problems relating to the doctrine of prior suit pending. As such, we find that the trial court did not err in denying Appellant’ s motion to dismiss.
III. Disciplinary Proceeding as Evidence of Malpractice The Appellant asserts that the trial court erred in allowing the plaintiffs’ attorney to introduce into evidence the findings of fact and judgment froma disciplinary proce eding. This error, according

to the appellant, unfairly p rejudiced him because it w as “tantamount to a directed verdict in favor of the appellees . . . ”

The first question before this court is whether the findings of the disc iplinary proceeding were relevant in Appellant’s malpractice trial. All relevant evidence is generally admissible. Tenn.R. Evid. 402. Rule 401 of the Tennessee Rules o f Evidence provides the standard for determining whether evidence is relevant. Relevant evidence is “evidence having any

tendency to make the existence of any fact that is of conseque nce . . . more probable or less probable than it would be without the evidence.” Tenn.R.Evid

. 401(emphasis added). Asthe Advisory comments mak e clear, this is not

a high standard. See Tenn.R.Evid. 401, Advisory Commission Comments ( “T he theoretical test for admissibility is a lenient one, as it should be, .. . ”).

There is no doubt that the Code of Professional Responsibility (“the Code”) does not set the standard for

determining the civi l liability of an attor ney. See Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C. , 813 S.W.2d 400 (Tenn. 1991). However, that fact does not preclude the possibility that violation of the Code is relevant evidence in a subsequent civil case. Id. at 405 (“the standards stated in the Code are not irrelev ant in determining the standard of care in certain actions for malpractice”). The Tennessee S upreme Court recognized that the Code may provide guidance in de fining a lawyer’s

obligation to a client. Mor eover, in some instances, conduct w hich violates the Code may also be a breach o f12

the attorney’s standard of care. While violation of the Code, stan ding alone, will not suffice to prove civil li ability, it seems cl ear that such a violation m ay be re levant eviden ce of a breach of the standard of care.

A ppellant’ s primary argument is that the admission of the evidence was unfairly prejudicial and should, therefore, have been ex cluded. S ee Tenn.R.Evid. 403. Undoubt edly, the admission of the judg m ent and findings of fact from the disciplina ry proceeding was detrimental to Appell ant’s defense. See Woo dson v. Po rter Brown Limestone Co., Inc. , 916 S.W.2d 896, 907 (Tenn. 1996) (noting th at extrem ely persua sive evidence ten ds to be pr ejudicia l). However, Rule 403, by its langu age, plac es a heavy burden on the party seeking t o exclude the evidence. Id. ; See als o Tenn.R.Ev id. 403. The rule only excludes evidence if the probative value is substantially outweighed by the danger of unfair prejudice.

The admissibility of evidence is a matter which rests within the sound discretion of the trial court. State v. Ballard , 855 S.W.2d 557, 562 (Tenn. 1993); State v. Willia ms , 657 S.W.2d 405, 411-12 (Tenn. 1983); Murray v. State , 377 S.W.2d 918, 920 (Tenn. 1964); Wright v. Quillen , 909 S.W.2d 804, 809 (Tenn. App. 1995); State v. Rhoden , 739 S.W.2d 6, 13 (Tenn. Crim. App. 1987). This Court will not interfere with the trial court's exercise of its discretion absent clear abuse. Williams , 657 S.W.2d at 411-12; Murray v. State , 377 S.W.2d at 920; Rhoden , 739 S.W.2d at 13. The evidence was clear ly relevant to is

sues in dispute in the case. Also, unlike the Lazy Sevencase, there was expert testimony in the presentcase that Diamond violated the applicable standard of care. In Lazy Seven , the
e xpert testimony only rela ted to a violation of the Code, not the standard of care. Laz y Seven , 813 S.W.2d at 407. T herefore, the outcome of that case does not bear on the case at bar. We find no basis fo r concluding that the trial judge abused his discre tion i n admitting the evidence.
IV. Punitive Damages Punitive damages are i ntended to punish the defendant for wrongful conduct and13

to deter others from similar conduct in the future. Clanton v. Cain-Sloan Co. , 677 S.W.2d 441, 445 (Tenn. 19 84) (citing Liberty Mutual Ins. C o. v. Stevenson , 368 S.W.2d 760 (Tenn. 1963)). These damages refer to the nature of the defendant's conduct rather than to the injuryplaintiff suffered, Breault v. Friedli , 610 S.W .2d 134 (Tenn . App. 1980), a lthough actual damages must be found as a predicate for the recover y of punitive damages. Allen
v. Melton , 99 S.W.2d 219, 225 (Tenn. 193 6). In awarding puni tive damages, the law blends the interests

of society and the aggr ieved individual

and awards such damages as will operate to deter others from li ke conduct. Pridemark Custom Plating , Inc. v. Upjohn Co., Inc. , 702 S.W .2d 566, 573 (T enn. App. 198 5) (citing Knoxville Traction Co. v. Lane , 53 S.W. 557 (Tenn. 1899)).

In Hodges v. S.C. Toof & Co. , 833 S.W.2d 896 (Tenn.1992), our supreme cou r t determined that pun itive dam ages are ava ilable on ly where a def endant has acted intentionally, fraudulentl y, maliciously or

recklessly. The cour

t explained: A person acts intentionally when it is the person's consciou s objecti ve or desire toengage in the conduct or cause the result . A person acts fraudulently when (1) the person intentionally misr epr esents an existing, material fact or prod uces a false impression, in order to mislead another or to obtain an undue advantage, and (2) anothe r is injured because of reasonable reliance up on that representation. A person acts malici o usly when the person is motivated by ill will, hatred, or personal spite. A per son acts recklessly w

hen the person is aware of, but

consciously disregards, a substantial and unjustifiable risk of such a nature that its disr egard constitutes a gr

oss deviation from the standard of care that an ordinary person would exerc ise under all the circumstances

. Hodges , 833 S.W.2d. at 901.

In Metcalfe v. Wat ers , t he Tenn essee Su preme Co urt recogn ized that punitive damages may be awarded in legal malpractice cases provided the standard established in Hodgesis proven by clear and convincing evi dence. 970 S.W.2d 448, 451-452 (Tenn. 1998). In reinstat ing the jury ver dict awarding puniti

ve damages, the Metcal fe court concluded that the attorney’s “r epeated transgressions and c allous disregard for the rights of his clients” constituted “overwhelming evidenc e from which the jury could find, at a minimum, reckless conduct, that is, conduct co nstituti ng a gross deviati on from the applicable standard of care.” Id. at 452.14

In the present

case, there was abundant evidence presented regarding Diamond’s failure to perform his duties as both executor and attorney. Diamondremoved money from the estate without court appr ov al. Accord ing to the expert testi mony, Diamond was unjustifiably slow, if not inactive, in handling the affairs of the estate. The evidence present ed could reasonably support a finding that his conduct co nstituted a “gross deviati on from the applicable standard of care.” See Metcal fe , 970 S.W.2d at 452. As such, we find no error in the award of punitive damages.

Conclusion The judgment entered by the tr ial court is hereby affirmed in all respects. Cos ts of this appeal are taxed to the A ppellant, for which execution may issue if necessar y.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

FARMER, J.