# FILED
July 15, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

JAMES K. ALLEN, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9710-CV-00565 VS. ) ) Rutherford Circuit ) No. 36021 JIM WISEMAN, ) ) Defendant/Appellee. )
APPEALED FROM THE CIRC UIT COURT OF RUTHERFOR D COUNTY AT MURFREESBORO, TENNESSEE THE HONORABLE BOBBY CAPERS, JUDGE

PAUL CAMPBELL, JR. WILLIAM R. HANNAH CAMPBELL & CAMPBELL 1200 James Building 735 Broad Street Chattanooga, Tennessee 37402-1835 Attorneys for Plaintiff/Appellant LELA M. HOLLABAUGH MANIER, HE ROD, HOLLAB AUGH & SMITH 2200 First Union Tower 150 Fourth Avenue North Nashville, Tennessee 37219 Attorney for Defendant/Appellee

AFFIRMED AND REMAN DED

BEN H. CANTRELL, JUDGE
CONCUR: KOCH, J. CAIN, J.- 2 - 

## O P I N I O N

This is a legal malpractice action arising out of a cr imin al case. The plainti ff was convicted of assaul t and criminal trespass and he charges his attor

n ey with multiple failures before, duri ng, and after the trial, the mos t seriou s b eing the failure to retain a court reporter to preserve th e evidence introduced in the criminal
case. The Circuit Court of Ruther ford County granted summary judgment to the defendant. We affirm.

I.

James K. Allen retained Jim Wiseman, an attorney in Murfreesbor o, to defend an indictment

for criminal trespass and assault. Mr. Wiseman had previously represented Mr. Allen in his divorce from Cathy Allen, the prosecuting w itness in the criminal tre s pass charge. The assault ch arge was brought by Eddie Sandlin, who allegedly had an affair w ith Cathy Allen during

her marriage to James All en.

At t he criminal trial, Mr. Wiseman did not employ a court reporter t o record the proceeding. The jury found Mr. Allen guilty on both counts. He received
a sentence of eleven months and twenty-nine days in jail with all bu t five days suspended, and he had to pay approximate ly $4,000i n fines and restitution. He appealed his conviction pro se, and the opinion of the Court of Criminal Appea ls points out that he did not file a statement of the evidence even thoug h he was given the chance to do so under Tenn. R. App. Proc. 24(c). Thus, the court had no choice but to affirm the conviction.

Mr. Allen sued Mr. Wiseman, allegi ng that he failed to: (A) Adequately investigate both the scene of the c rime and fac ts of the crime bef ore trial d ay.- 3 - (B) Question everyone involv ed wit h the case before the trial day (C) Obtain the medical and employment records of the plainti ff in this trial to fully

evaluate his claims of inj ury and loss of work (D) Issue timely subpoenas to insu re key defense individuals for his cl ient would be on hand for this trial (E) Employ

a court rep orter fo r this tria l, eve n thoug h he repeatedly told his client this was a serious offense and could result in fines up to $2,500.00 and a senten ce of up to 11 months and 29 days in jail. (F) To adequately set up a d efense plan for the plainti ff, or spend a dequate time discussing his court plans with the defendant Mr. Wiseman denied the material allegations of wrongdoing and moved forsummary judgment. He supported his motion with h is own

affi davit, in which he detailed the work he did in the criminal cas e. He concluded by aver ring that he acted wi th reasonable skill and diligence and in accordance with the recognized standar ds of acceptable professional practi ce.

Mr. Allen filed the affidavits of tw o lay peop le and two lawyers.Cathy Allen made one relevant statementof fact. She said that Mr. Wise man did not crossex amine her about her knowledge of Mr. Sandlin’s part in harassing Mr. All en for a year before the incident which r esulted in the criminal ch arge. Chris Campbell , the other lay witness said in his affidavit that he w as acquainted with Mr. Sandlin and had heard him threaten to “take care” of Mr. Allen. He also said he was pr

epared t o testif y about Mr. San dlin’s p ersonal character, his lying, his exaggeration of facts, his dishonesty

and infi delity . Despite havi ng told Mr. Al len about this i nfo rmat ion, Mr. Campbell was not contacted by Mr. Wiseman.

One lawyer gave his opinion that the failure t o arrange for a court reporter to take a verbatim transcript of the trial in a criminal case was a breach of the recognizedstandard of acceptable professional practice for a lawyer practicing- 4 -

criminal law. Another lawy er said that the failure to hav e a court reporter made a meaningful appeal of the convicti on impossible.

The trial j udge hel d that as a matter

of law the fa ilure to have a court reporter at the trial of a misdemeanor was not belo w the stand ard of care. He also held that there were no disput ed questions of fact on the oth er allegat ions of negligence; therefore he g ranted Mr. Wiseman’s motion for summary jud gment.

II.
Summary judgment is proper w here th ere are n o disputed issues of material facts and the moving party is entitled to a judgment as a matter of law. Taylor
v. Nashville Banner Pub. Co. , 573 S.W.2d 476 (Te nn. App. 1978). Wheth er a lawyer’s conduct meets a particular standard of conduct is a question of fact, Cleckner
v. Dale , 719 S.W.2d 535 (Tenn. App. 1986), and a deviation from that standard must be shown by expert pr

oof, except

in cases involvi ng “clear andpalpable negligence.” Id. at 540.
Except

on the question of the

failure to hire a

court reporter, there i s no expert testimony that any action taken or not tak en by Mr. Wiseman fell below the standard of care requiredof a trial lawyer and, despite Mr. Allen’s insistence that Mr. Wi seman’s negligence was “palpable, plain, and obvious ,” we cannot agree. I n hi s brief, Mr. Allen lists nine instances of “palpably” bad conduct on Mr. Wiseman’s part (excepting the court reporter issue). Mr. Wiseman allegedly did not:

(1) investiga te prope rly, (2) question everyone i nvolved in the case, (3) obtain the medical an d employment records of Sandlin, (4) issue timely subpoenas to ins ur e key defense individuals at trial, (5) set up a defense plan for Allen or spend ade quate time discus

sing his c

ourt case w

ith him, (6) represen t his clien t zealousl y.- 5 - He did: (1) conduct himself in an extremely inappropriate manner in court so badly as t o be threate ned with contempt of court, (2) abandon Allen after the sent enci ng hearing because of a planned trip to London, (3) place his personal interest s ab ove those of his client.

We note that more than half of the alleged fail ures concern trial tactics or Mr. W iseman’s con duct of the defense. At one time we thoug ht that a lawyer’s trial conduct or tactics could not be questioned , see Stricklan v. Koella , 546 S.W.2d 810 (Tenn. App. 1976), but

a more flexible approach was announced by the federal court in Woodruff v. Tomlin , 616 F.2d 924 (6th Cir. 1980) . The federal court, interpreting Tennessee law, recognized that there can be no liability for a cts or omissions by

an attorney in the conduct o f litiga tion which a re based on an honest exerci se of professional judgment, but the court also said that an attorney is still b oun d to exercise a reasonable degree of skil l and care. Cf. Pera v. Kroger Co. , 674 S.W.2d 715 (Tenn. 1984).

We believe that whether an attorney has failed to meet t hat standard requires a knowledge of the issues involved in the li

tigation, what proof

was available, whatsteps were taken to advance the client’s interests, and what reasons lay behind the choices made. With all the facts, a skilled, experienced trial law yer could give an opinion about how the attorney’s actions measured up to the standar d of reasonable skill and care. Ordinary laymen (even judges) could not say that the attorney’s conduct fell below that

standard. See Cleckner v. Dale , 719 S.W.2d 535 (Tenn. App. 1986). Therefore, Mr. Wiseman ’s affidavit stating that he conformed to the stan dard of care is unrefuted in the recor d.- 6 - We think the items on Mr. Al len’s list that do not inv olve trial tactics

or conduct are either simply conclusory (Mr. Wiseman “abandoned” Allen and placed his personal interests above Mr. Allen’s), see Doff v. Brunswick

Corp. , 372 F.2d 801 (9th Cir. 1966), or are also beyond the common k nowledge o f laymen . Theref ore, we think summary judgment on these issues was proper.

IV. The Court Reporter Issue

Mr. Allen filed two af

fidavi ts on this issue. Only one of the affidavits expressed an opi nion on the sta ndard of care. It stated the f ollowing:

1. I am an attorney licensed to practice law in the State of Tennessee and have been so lic ensed since 1969. 2. I have been in private pr actice in Chattanooga, Tennessee continuously sinc e 1969. 3. During my ye a rs of practice I have rep resented many def endants in crimina l jury and n on-jury trials. 4. Failure of defense couns el to arrange for a court reporter to take averbatim transcript of the trial i n a criminal case, in my

opini on, constitutes a failure by the attorney to exercise reasonable skill and dil igence in r epresenting the clientand d oes not constitute legal representation in accordance with recogn ize d standards of acceptable professional practice for attorneys practici ng in the area of criminal law. This breach of standard practice renders it impossible for the clientto mak e a meaning ful appea l in the

event o

f a conviction.
The trial judge found, howev er , that, as a matter of law, “the failure to have a court reporter at t he misdemeanor criminal heari ng of the plaintiff was not below th e a ccepta bl e sta nd ar d of p rofe ss io na l p ra ct ice. ” We think the trial judge was correct. Our criminal code req uires the state to f urnish a cour t reporter in felony
cases. Tenn. Code Ann. § 40-14-301, et seq. Indigent defendants in those cases are entitled to the transcript free of charge. Elliott v. State , 435 S.W.2d 812 (Te nn. 1968).1 W e note that the Court of Criminal Appeals expre ssed surpri se t hat Mr. All en had not taken advantage of t he chance to fi le a narrative stat ement of the evi dence. - 7 - But in a misdemeanor prosecution inv olving an indigent defendant, the court’s denial of a request for a court reporter is not reversible. State v. Hammond , 638 S.W.2d 433 (Tenn. Cr. App. 1982). A narrati ve statement

of the evide nce is suf ficient to preser ve the issues on appeal, in the absence of some explanatio n to the contrary

. Id. Se e Tenn. R. App. Proc. 24(c). So,as a matter of public policy, a

narrative statement of the evidence is sufficient and available in the absence of a court reporter. 1

While we have said that a tr ial judge should not act as an expert witness in a malpractice case, and that w hether a lawyer’s conduct fal ls belo w a particular standard is a question of fact, Cleckner v. Dale , 719 S.W.2d 535 (Tenn. App. 1986), in some cases it has beenheld that the breach of duty may be resolved as a matter of law if the particular

conduct doesnot permit a reasonable doubt as to whether the defendant’s conduct violates the deg ree of care exacted of him. Lysick v. Walcom, 258 Cal. App. 2d 136 (1968).

Further, examining the affidavit, we note that it could not be universally applied. Otherwise, every defense lawyer

appointed to defend an indigent client charged with a misdemeanor woul d be obligated to hire the court rep orter at h is own expense. And trial judges w ould invite revers

al if they allowed the trial t o proceed without a court reporter. As w

e have seen, the Court of Cri minal Appeals has rejected that argument. See State v. Hammond , 638 S.W.2d 433 (Te nn. Cr. App. 1982).

The judgment of the trial court is affirmed and the ca use is r emanded to the Circuit Court of

Rutherford County for any further proceedings necessar y. Tax the costs on appeal to the appellant.- 8 - ____________________________ BEN H. CANTRELL, JUDGE

CONCUR:

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ WILLIAM B. CAIN, JUDGE