# FILED
February 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON RONNIE BRADFIELD, ) a/k/a Paul Farnsworth, ) ) Plaintiff/Appellant, ) Lake Circuit No. 97- 7440 ) VS. ) Appeal No . 02A01-9707-CV- 00171 ) STEPHANIE GREE N COLE, ) ) Defendant/Appellee. )
APPEAL FROM

THE CIRCUI T COURT OF LA KE COUNTY AT TIPTONVILLE, TENNESSEE THE HONORABLE R. LEE MOOR E, JR., JUDGE

RONNIE BRAD FIELD a/k/a Paul Farnsworth, pro se Whiteville, Tennessee

GERALD S. GRE EN Memphis, Tennessee Attorney for Appellee

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: DAVID R. FA

RMER, J. HOLLY KIRBY LI LLARD, J. Plaintiff-Appellant

(“Plaintiff”) brought an action in the tr ial court for

legal malpractice2

against his former attorney (“Defendant”). The court granted s ummary judgment for Defendant, and Plaintiff has appealed.

Plainti ff is incarcerated by

the Tennessee Department of Correcti on after conviction
on three counts of attempted murder in the second deg r ee. Defendant represented Plainti ff on appeal, and Plaintiff alleges that Defendant fell below the applicable standard of care i n her re present ation of P lainti ff.

PROCEDURAL HISTORY Plainti ff filed a complaint on April 30, 1996, in which he alleg ed that Defendant failed to represent him “in a zea lous and effective manner.” On J une 5, 1996, Defendant filed a “Motion to Dismiss”

which the trial cour

t denied by order dated Aug ust 28,1996.

Plainti ff filed several discovery motions a nd on October 4, 1996, he filed a motion to compel discovery from Defendant. On October 8, 1996, Defendant’s attorney wr ote a letter to Plaintiff, which is included in the record, in which he stated he had been unable to locate any interrogatorie s and that none had been file d in the cause. On November 8, 1996, the trial court directed Plaintiff to file his interrogatories and requests with the clerk of the court. The interrogato ries were filed on December 10, 1996. On January 13, 1997, Plainti ff filed a motion for default judg ment due to the failure of Defendant to prov ide discovery

as ordered by the court. The trial court allow ed Defendant until March 15, 1997, to provide discovery. Defendant filed a response to Plaintiff’s interrogatories on March 3, 1997. Thereafter, Plaint iffalleged that the answer s were not complete and renew ed the request for a default judgment. The trial court denied this motion on April 22, 1997.

The Defendant file d an answer on May 27, 1997,and on the following day filed a motion for summary judgment supporte d by an affidavit of

Defendant. The court granted Plaintiff up to June 30, 1997, to respond to th e motion . Upon ap plicat ion of Pl aintiff, the time to respond was

extend ed to Jul

y 8, 1997. After

Plaint ifffiled his response, the court entered an order granting summar y judgment to Defendant on July 21, 1997. From this3

order Plaintiff appeals.

DISCUSSION Plainti ff lists fou r issues on appeal, but we perceive the sole issue to be whether the trial court was cor

rect in granting summar y judgment for the Defendant.

In a suit agai nst an at torney fo r profes sional ne gligence, the Plain tiff mu st prove three things in order to rec over: (1) the employment of the attorney; ( 2) negl ect of a reasonable duty by the attorney ; and (3) damages resulting from suc h neglect. Sammons v. Rotr off , 653 S.W.2d 740, 74 5 (Tenn. Ct. App. 1983). The settled general rule in most if not all American jurisdictions is that an attorney to w hom the conduct of litigation i s entrusted may be held liable to his client for damages resulting from his failure to exercise ordinary care, skill, and diligence, or, as it is frequently expressed, that degree of care, skill, and diligence which is commonly possessed and exercised by attorneys in practice in the jurisdiction. Wood v. Parker , 901 S.W.2d 374 (Tenn. Ct. App. 1995); see A.L.R.2d 5, 12.

It is well settled i n Tennessee that legal malpract ice acti ons inv olving issues of standard of care and breach thereof requi re expert testimony. Lazy Seven Coal Sal es v. Stone & Hine s , 813 S.W.2d 400, 406 (Tenn. 1991); Cleckner v. Dale , 719 S.W.2d 535 (Tenn. Ct. App. 1986). In Lazy Seven Coal Sal es v. Stone & Hines , supra , the Supreme Cou rt quoted from Cleckner v. Dale , supra , in elaboration of the standard t o whic h attorneys are held in civil actions for damages:

The standard of care applicable to a par ticular case will vary depending upon the type of legal activity involved. The sta ndard of care applicable to civ il litigators may

not be th e same standard applicable to lawyers repres

enting the buyers in a real estate

transaction or to lawyers dr afting complicated testamentary instruments. The varied nature of the pract ice of law undersc ore s the necessity of exper t proof intended to acquaint the finde r of f ac t with the applicable pr ofessional stand ard i n each case...[w]hether a l awyer’s conduct meets the applicable standards is gener ally believed to be beyond the common knowledge of laypers ons. Thus, except in cases involvin g cle ar and palpable negligenc e, most courts considering the issue have held that cases of legal malpractice cannot be decided without expe r t proof regarding the applicable standard of care and whether the lawyer’s conduct complies with this st

andard.4

Id. At 540. The Cleckner court went on to prov

ide: We have determined that the evidentiary princ

iples developed in medical malprac

tice cases are equally appl icable to legal malpractice c ases . The lawyer’s standard of care, except in the most extreme cases, should be proved using expert testimo ny. Likewise, whether the lawyer’s condu ct in a given case departed from th e applicable standard should al so be proved by e xpert test imony.

In this case thePlaintiff had the burden to show that Defendant owed Plaintiff a duty of reasonable professional care as his attorney, that Defendant breached that stan dard of care, and that, as a result of the breach, Plaintiff suffered damages.

Defendant filed an affidavit in support of her motion for summary judgment in which she stated: Throughoutmy representation of the Plai ntiff in his criminal

matter, I abided by the standard of care owed by attorney s to clients and fulfille d my duty by providing the d iligent rep resentation owed to the client in the particular circumstances of the case of the Defendant [Plaintiff here].

The affidavit of a defendant expert is admi ssible for consideration i n a mot ion fo r summary judgment. Smith v. Graves , 672 S.W.2d 787 (Te nn. Ct. App. 1984).

The issues of standard of care and w hether the atto rney provided a z ealous and effect ive defense are matters requiring expert proof. In the case sub judice , Plain tiff has not come forward wit h any expert proof to establ ish the standard of care applic able to attorne ys nor has he provided a ny e xpert opinion that Defendant deviated from the applicable standard. In Byrd v . Hall , 847 S.W.2d 208, 215 (Tenn . 1993), the S upreme Court stated: When the party seeking summary judgment makes a properly

supported motion, the burden then sh ifts to t he nonmoving party to set forth specific facts, not legal conclusi ons, by usingaffidavits or the discovery

materials listed in Rule 56.03, establishin g that there are in deed disputed, material facts creating a genuine issue that n eed s to be resolved by the trier of fa ct and that a trial is therefore necessa ry. T he nonmo ving party may not rely upon the alleg ations or denials of his pleadings in carr ying out this burden as

mandated by Rule 56.05.5

In summary, we conclud e tha t, in those legal malpractice actions wherein expert legal testimony

is requiredto establish and proximat e cause, affidavits by attor ney(s) who
are experts in the particular areain question which clearly and completely refute Plaintiff’s contention, afford a proper basis for dismissal of the action on summary judgment , in the absence of proper

respons ive pr

oof by ex pert aff idavit or o therwise. Conseque ntly, we affirm the judgment of

the trial court granting Defendant’s Motionfor Summary Judgment.

The Plaintiff also argues that he is entitled to default judgment for failure of the Defendant to provide a timely response to his requestsfor discovery and for failure to file
a timely answer. The tr ial court considered

these motionsand denied them. We find no abuse of discretion. These contenti ons of Plaintiff are found to be without merit.
The judg ment of th e trial court i s affirmed. Cost s are adj udged against Pl aintiff.

HIGHERS, J.

CONCUR:

FARMER, J.

LILLARD, J.