### IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE May 2000 Session

WILLIAM JAMES LOGAN v. HEISKELL WINS TEAD

Appeal from the Circuit Court for Hawkins County No. 5023J John K. Wilson, Judge

No. E1999-01056-SC-R11-CV - Filed July 21, 2000

FOR PUBLICATION

This appeal arises f

rom a prisoner’s pro se

actionfor leg al malpractice against the attorney who represented

him in criminal court on the charges underlying his sentence. The attorney filed a motion for summary judgment supported by an expert af fidavit. The prisoner, relying upon Whisnant v. Byrd

, 525 S.W.2d 152 (Tenn. 1975), filed a motion to hold the proceedings in abeyance until he was released from prison and able to appear in court. The trial court failed to rule on th e motion for abeyance. The trial court entered summar

y judgment in favor of the attorney on the grounds that the prisoner had not offered an expert affidavit to rebut the attorney’s proof. The Court of Appeals upheld the

judgment. We gr

anted review to d

etermine under what circumstances an incarcerated

plaintiff is entitled t o have a civil action held in abeyance until he or she is released fro m custody. We have determined that a plaintiff in prison has no absolute right to h ave civi l proceedings stayed or t

o be p resent during civil litigation. Accordingly, we overr ule Whisnant

to the extent that it may

be interpreted t

o stand for that pr

oposition. Inste

ad, we hold

that anabeyance should be granted by

the trial court onl

y when reasonable

under the circumstances, in light of several competing interests. Beca use the trial cour

t in this case faile

d to consider Mr. L

ogan's motion to hold his case in abey

ance, we reman

d this case

to the trial court for further proceedings consistent with this opinion.

Tenn. R. App. P. 11 Appeal b y Permission; Jud

gment of the Tria

l Court and Court of A

ppeals Affirmed in Part; Reversed in Part; and Remanded

F RANK F. D ROWOTA , III

, J., delivered the o

pinion of the court

, in which E. R ILEY ANDERSON , C.J., A DOLPHO A. B IRCH J R , J ANICE M. H OLDER & W ILLI AM M. B ARKER , JJ. joined.

Kenneth F. Irvi ne, Jr., El dridge & Irvine, Knoxv

ille, Tenn essee, for the appellant, William James Logan.

Thoma s L. Kilday and Thomas J. Garland, Milligan &Coleman, Gree neville, Tennessee, for the appellee, Heiskell Winstead.

OPINION1 Although Mr. Log an initially hired M r. W in stead pursuant to a private ag

reement, the trial cour

t later appoin

ted Mr. Winstea d in this matter in response to Mr. Log an's reported indigency an d his failure to p ay Mr. W instead all of his earned fees.

2 The tampering with

the evidence char

ge was voluntar

ily dismissed by the Sta te.

3 Mr. Logan's most recent petit ion fo r post- convic tion r elief , in w hich h e compla

ined of the sa me matters th

at

are the subject o f his subsequent civil mal practice sui

t at iss ue in this

case, was heard i

n the Hawkins County

Criminal Court in August 1998. T he petition wa s denied o n all counts. T he Court o f Criminal Ap peals affirmed the judgment in November 1999. This Court denied Mr. Loga

n’s Rule 11 applicat

ion for a ppeal on Febru

ary 28, 2000.

4 Mr. Logan alleg ed a numb er of acts and omissions b y Mr. W instead that, if pro ven, would constit ute legal malpractice,

including: (1) failu

re to fil e a m otion to supp ress evidence and failure to invest igate the validity

of the search warrant; (

2) failure to object to il

legal and irrelevant evidence; (3) fail ure to object to a multiple co unt indictmen t; (4) imprope rly comme nting to the jury ab out the senten ce Mr. L ogan wou ld rece ive if convicted; (5) refer ring to Mr. Logan as a "jail bird" in correspondence; (6) failure to ask f or and inspect

evidence a

s requir ed by Tenn. R. Crim. P. 16; (7) failure to file a mo tion to confro nt the confide ntial in for man t; an d (8 ) fai lure to p rop erly resp ond to M r. Lo gan 's requests and to investigate the c ase.



### -2- Factual Backgrou

nd On April 12, 1996, pursuant to a search warrant obtained in connection with information from a confidential informant, Hawkins County police officers searche d the home of the appellant, William J. L

ogan. During t

he search they

recovered sev

eral zip-lock bag

s filled with cocaine, as well as large quantities of cash. Mr. Loga n was indicted on June 3, 1996, in the Criminal Court for Hawkins County, and was charged with simple possession of cocaine, possession of a controlled substance with the intent to sell, and tampering with evidence. Mr. Logan hired the appellee, Heiskell Winstead, an attorney in Rogersville, to defend him on the charges. 1 He was tried in the Hawkins County Criminal Court on June 20, 1996, and was convicted of the t

wo drug-relat

ed felony c

ounts. 2 Mr. Logan w

as sentenced to tw

o six-year te

rms that were to run concurrently. He is presently incarcerated in a Tennessee Department of Correction facility in Mountain City, Tennessee.

Mr. Winstead continued to represent Mr. Logan post-trial by filing a Motion for a New Trial, which was denied by the trial court. Mr. Winstead then filed a notice of appea l on Mr. Logan's b ehalf and repre

sented him during

his appeal as of r

ight. The Court of

Criminal Appeals affirmed the conviction on January 12, 1998. Mr. Winstead next filed an application for permission to appeal to this Court on Mr. Logan's behalf, but Mr. Log an subsequently filed a motion to voluntarily dismiss the petition. Mr. Logan filed numerous post-conviction petitions and petitions for habeas corpus relief in state and federal court, however Mr. Winstead obtained permission to withdraw from representation during this period. 3

On April 8, 1998, Mr. Logan , acting pro se , filed a complaint against Mr. Winstead in the Chancery Court for Hawkins County alleg ing legal malpractice and seeking both compensatory and punitive damag

es. 4 The complaint was

then transferr

ed to the Circuit Cou

rt pursuant to5 Tennessee Code Annotated § 16-11-102(b) provides that the Chanc ery Court ha s concurre nt jurisdiction w ith the Circuit

Court in all ci

vil cau ses of ac tion exc ept for

cases involv

ing unliqui

dated damages for in

juries to person or character o r injuries to pro perty not resu lting from a bre ach of oral o r written contra ct.



### -3- Tenn. Code Ann. § 16-11-102(b). 5 Mr. Winstead filed a motion for summary judgment on September 25, 1998. As support for the motion, he filed his own affidavit in which he stated the facts concerni

ng his represe

ntation of Mr. L

ogan and his exper

t opinion that he did n

ot violate the applicable standard of care.

Relying on Whisnant v. Byrd, 525 S.W.2d 152 (Tenn. 1975) and Smith v. Peebles , 681 S.W.2d 567 (Tenn. Ct. A

pp. 1984), on Septe

mber 29, 1998, Mr. L

ogan filed a "Motion to Put in Abeyance" asking the trial court to continue the proc eedings until he was released from custody. He then filed a response to the motion for summary judgment, in which he ag ain asked the court to continue the pro

ceedings. I

n an attachment to

the response, he

wrote:

The plaintiff has

already f iled a motion to put thi

s case in abey

ance. He is also responding to the defendant's summary judgment furthe r asking that his case be put in abeyance until the plaintiff is released from prison. The summary judgment should be dismissed until discovery is completed and until the plaintiff is released from prison.

The trial court did not rule on Mr. Logan's request for an abe yance of the proceedings. On December 21, 1998, Mr. Logan filed a "Motion to Waive Oral Arg ument" in which he asked the court to adjudicate the motion for summary judgment solely on the record. The motion asserted: "Plaintiff, by law, cannot appear since he is incar cerated, and waives all oral argument. It would not be just, nor fair, for this Court to allow oral argument by one party, when the other party is precluded from 'appearing' by law."

On January 4, 1999, the trial court granted Mr. Winstead's motion for summary judgment on the record and without oral argument. In its order, the court stated that " the record establishes, witho

ut dispute, that the

defendant, at a

ll times, represe

nted the plaintiff

in

con for mit y wit h th e cus tom , pr act ice and prev ail ing s tan dard of s imi lar ly-s itu ate d at tor neys practicing in th

e community a

nd that there was

no deviation there

from which proximat

ely contributed to cause any injury or da mages to the plaintiff." The order did not address Mr. Logan's requests to hold the matter in abey ance pending his release from prison.

Mr. Logan, acti ng pro se , appealed the judgment. The Court of Appeals affirmed the entry of summary judgment in favor of Mr. Winstead, finding that Mr. Winstead met his burden of proof by filing his expert affidavit stating that he had not violated the applicable standar d of care. The intermediate court held that Mr. Logan "of fered no . . . proof by way of expert testimony co

ncerning the a

pplicable standa

rd of care for a

criminal defense

attorney in

this jurisdiction or how

this standard of c

are was breac

hed by the de

fendant. As such,

he has failed to establish the essential elements of his case."

### -4-

We granted Mr. L

ogan's petitio

n to appeal in orde

r to examine the abe

yance issue

and to revisit the Whisnantcase relied upon by Mr. Loga n. Specifically, we consider under what circumstances an incarcerated plaintiff is entitled to have a civil action held in abey ance until he or she is released from prison. Because we have determined that an incarc erated plaintiff has no absolute right to

have civil proce

edings stay

ed or to be prese

nt during civil liti

gation, we over

rule Whisnantto the extent that it may be read to stand for that proposition. Instead, an abey ance should be granted by the trial court only when reasonable under the circumstances, in light of several countervailing considerations, such as the length of the prisoner litigant's sente nce, the difficulty of the prisoner in presenting proof, the burden on the court in maintaining a docket on which such claims will indefinitely remain, the impracticability of litiga ting a suit many years after its filing because memories fade and witnesses become difficult to locate, and a def endant’s right to have claims against him or her timely adjudicated. Bec ause we conclude that the trial court in the instant case erred by failing to consider and rule on Mr . Logan's motion for an abeyance , we reverse the

judgments of the t

rial court and the

Court of Appeals a

nd remand this case for further proceedings consistent with this opinion.

The Abeyance Issue Relying upon Whisnant v. Byrd , Mr. Logan argues that the trial court erred by not holding his malpractice action in abeyance until he was released f rom prison. In Whisnantwe held:

[A] prisoner has a constitutional right to institute and prosecute a civil action seeking redress for injury or damage to his person or property, or for the vindication of any other legal right; however, this is a qualified and r estricted right.

* * * *

[A]bsent unusual cir

cumstances, pris

oners who have f

iled their civil co

mplaints, unrelated to the legality of their convictions and who have thus protected themselves against the running of any statute of limitations, will not be afforded the opportunity to appear in court to present their cases during their prison terms. Instead such matters will be held in abeyance until the prisoner shall have been released from prison and is in a position to prepare and present his case.

Whisnant , 525 S.W.2d at 153-54. See also Smith v. Peebles , 681 S.W.2d 567, 569 (Tenn. Ct. App. 1984) ( citing Whisnant and stating: “In the instant case plaintiff prisoner’s ‘constitutional right to institute and prosecute a civil action’ was effectively denied whe n the Trial Judge refused a continuance and dismissed plaintiff’s complaint for ‘failure to prosecute.”).

Mr. Winstead arg

ues that Whisnantand Smith apply only

to the right of pr

isoners to appear at the trial of their civil suits, but they do not guarantee a right to be present during the

### -5-

disposition of pre-trial matters, nor do they discuss how a trial court should handle pre-trial matters. Contending that a motion for summary judgment is a pre-trial matter, Mr. Winstead argues that Mr. Logan had no right to be present during the trial court’s consideration of the motion, and, accordingly, no right to an abey ance of proceedings.

As support for this a

rgument, Mr. Winst

ead cites Sanjines v.Ortwei n & Assocs. , 984 S.W.2d 907 (Tenn. 1998), in which a pro se inmate simultaneously filed a legal malpractice action against his attorney and a post-conviction claim alleging ineffective assistance of counsel. The defendant filed a motion for summary judgment in the civil action, and the plaintiff asked the trial court to stay the malpractice action until the conclusion of the post-conviction proceedings. I

n deciding that th

e prisoner was no

t entitled to a stay

of the malpractic

e suit, this Court observed tha

t:

While the Court in Whisnant was concerned

with the rights of

inmates to file civ

il complaints, the Court did not hold that a stay is necessary in all civil actions filed by incarcerated persons in order to prevent prejudice to the judicial process. Neither did the Court hold that such persons have a constitutional right to a stay of their civil actions. The Court was concerned only with the rights and qualifications of an inmate to appear in court for trial. Whisnant does not discuss how a trial court s

hould handle pre-

trial matters such

as stays of p

roceedings in inmate civil actio

ns.
Sanjines v. Ortwei

n , 984 S.W.2d at 910.

While the Sanjines case dealt with a plaintiff’s filing

of simultaneous civ

il and postconviction actions, its language makes clear that incarcerated plaintiffs do not have a constitutional right to a stay of their civil proceedings. We agree with Mr. Winstead and with our reasoning in Sanjines and hold that although incarcerated plaintiffs have a

constitutional rig

ht to initiate and prosecute a civil action, they do not retain an absolute right to have civil litigation held in abeyance until they are released from custody, nor do they retain an absolute right to be present at each stage of the proceedings. According ly, we overrule Whisnantto the extent that it may be inter

preted to guar

antee incarce

rated plaintiffs

these absolute ri

ghts.

Instead, we hold that the decision of whether or not to stay c ivil proceedings for a prisoner is left to the discretion of the trial court. Acting on a case-by- case basis, the trial court must weigh the competing interests of the inmate’s ability to present proof and the burde n on the judicial system and the defendant in continuing the action. In r eviewing a trial court’s ruling on a motion for abeyance, appellate courts should employ an abuse of discretion standard of review. See Sanjines v. Ortwei

n , 984 S.W.2d at 909.

One of the main factors to be considered by the trial court in considering a motion for abeyance is whether the inmate will be released fr om prison and able to appear in court within a

### -6-

reasonable amount of time from the filing of the suit. This determination will unmistakably vary from one case to the next. Besides the length of the prisoner’s remaining sentence, other countervailing

interests should be

considered by

the court, includi

ng the burden on

the court in maintaining a docket on which such claims will remain for an extended period, and the inconvenience a

nd impracticabili

ty of litiga

ting a suit sever

al years a fter its filing. N

ot only will prisoners have a more difficult time presenting proof if their cases are held in abey ance, but defendants have

a right to have c

laims against the

m timely adjud

icated. The long

er a suit is held in a beyan ce, t he m ore d iff icu lt i t wi ll b e to try o n it s me rit s. W itn ess es m ay mo ve o r pas s aw ay, memories will fade, and proof will become harder to obtain. It is in every one’s best interest - the court’s, plaintiff’s, and defendant’s - to require the incarcerated litigant’s suit to procee d, when reasonable unde

r the circumstanc

es. However we

hasten to add that w

hen a trial court

denies a prisoner’s request for an abeyance, it should, within its discretion, afford the prisone r sufficient time for filing briefs and motions and for conducting discovery. This is especia lly true when inmates are proceeding pro se . Trial courts should waive the time requirements of the Rules of Civil Procedure a

nd set reasonable

time restrictions i

n such instances.

Many suits can be adjudicated on the pleadings. Motions to dismiss, motions for
summary judgment

, and othe r such pre -trial ma tters can be litiga ted by a n inmate in

custody . We recognize, as Mr. Logan points out, that a prisoner filing or rebutting a motion for summary judgment supported by an expert affidavit might have a more difficult task in obtaining a n expert affidavit than would a litigant who is not incarcerated. In such instances trial courts should g rant additional time to prisoners to prepare relevant filings, as the circumstances of the case direct. Nonetheles s, we are of th e opinion t hat an incar cerated lit igant, acti ng pro se or having the benefit of an attorney, can prepare and support pr e-trial motions. With the discretion of the trial court in granting necessary extensions of time, prisoners should be able to proc eed in accordance with the Rules of Civil Procedure.

Moreover, requ

iring incarce

rated plaintiffs

to prosecute civi

l claims will serve

to eliminate the many frivolous actions by inmates that burden the c ourt system. In order to spare defendants, pote

ntial witnesses an

d the courts the bur

den of having pr

isoners’ civil ac

tions held in abeyance for y

ears, trial courts should be permitted to dispose of frivolous suits via pre-trial motions. For example

, if a plaintiff’s

legal malprac

tice allegation

s lack merit, he or

she would find it difficult to obtain an expert witness willing to state in an affidavit that the defendant violated the applicable standard of care. Holding such a case in abey ance until the prisoner has been released from custody would be an exercise in futility and would unduly burden the court and the defenda

nt.

In the instant case, we conclude that the trial court erred by failing to rule on Mr. Logan’s Motion to Put in Abey

ance. Not only

does such an omissio

n give the impression that a litigan t is being ignored, but appellate review becomes more difficult without an order specify ing reasons for a trial court’s grant or denial of a motion. In this case, Mr. Winstead moved for summary judgment on September 25, 1998. Four days later, Mr. L ogan filed a motion requesting that the matter be held in abeyance until his release from prison. I n addition, Mr. Logan asked that6 Our decision in this appeal should not be read as expressing an opinion

on the meri

ts of either Mr. L ogan’s request for a n abeyanc e or Mr . Winstead ’s motion for su mmary jud gment.



### -7- “summary judgment be dismissed until discovery is completed.” The trial court never ruled upon Mr. Logan’s abeyanc

e motion, and approximately three months later, the trial court granted Mr. Winstead summary

judgment upon the

record without or

al argument.

As previously

explained herein,

incarcerated

plaintiffs do not ha

ve an absolute rig

ht to have civil litigation held in abeyance until they are released from prison. However, such plaintiffs are entitled to have requests for abeyances c onsidered and determined under the appropriate legal standards. There is nothing in the record of this appeal to indicate that the trial court gave any

consideration to M

r. Logan’s

request for an a

beyance. Under these circumstances, the trial court erred. Therefore, we reverse the judgments of the trial court and the Court of Appea

ls which grante

d summary jud

gment to Mr. Winstea

d. We remand this ca

se to the trial court to consider, pursuant to the guidelines set forth in this opinion, whether Mr. Logan’s request for an abey ance should be granted. If, in its discretion, the trial court determines that an abeyance is not appropriate, the trial court may deny Mr. Logan’s reque

st for an abeyance and rule upon Mr. Winstead’s motion for summary judgment after affording Mr . Logan sufficient time to respond to the summary judgment motion. 6

Conclusion The Court wishes to thank Kenneth F. Irvine, whom we appointed to represent Mr. L ogan in this app

eal, for h is outstan ding per formance througho ut the proc

eedings in this Cour

t. We commend Mr. I

rvine for his dedi

cated represe

ntation of Mr. L

ogan and appre

ciate his willing

ness to assist and the time he has volunteered to serve the administration of justice in this state. Mr. Logan will pr

oceed pro se on r

emand in the trial c

ourt.

The judgments of

the trial court an

d the Court of Appe

als are affirme

d in part, revers

ed in part, and the ca

use is remanded. C

osts of this appeal

are taxed equally

between the appe

llant, William J. Logan and the appellee, Heiskell Winstead.

_______________________________________ FRANK F. DROWOTA

, III , JUSTICE