IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 12, 2001

CHARLES MONTAGUE v. MICHAEL D. KELLUM

Appeal from the Circuit Court for Washington County

No. 7877 Thomas J. Seeley, Judge

FILED MAY 17, 2001

No. E2000-02732-COA-R3-CV

In this legal malpractice action, the Trial Court granted summary judgment to the Defendant,

Michael D. Kellum (“Defendant”). Defendant submitted a Rule 56.03 statement and the affidavit

of an expert witness in support of his motion. Charles Montague (“Plaintiff”), did not file either a

Rule 56.03 response or a contravening affidavit. Prior to deciding Defendant’s motion, the Trial

Court stayed Plaintiff’s discovery until it decided Defendant’s motion. Plaintiff, who is

incarcerated, had previously served discovery requests upon Defendant which had not been

answered. Plaintiff appeals. We vacate the judgment of the Trial Court.

Tenn. R. App. P. 3 Appeal as of Right; 

Judgment of the Circuit Court Vacated; and Case Remanded.

D. MICHAEL SWINEY,J., delivered the opinion of the court, in which HOUSTON M. GODDARD, P.J.,

and HERSCHEL P. FRANKS, J., joined.

Charles Montague, pro se Appellant, Mountain City, Tennessee.

James A. Nidiffer, Johnson City, Tennessee, for the Appellee, Michael D. Kellum.

OPINION

Background

This appeal results from the Trial Court's granting summary judgment to Defendant.

Plaintiff, who is incarcerated, filed a Complaint alleging legal malpractice stemming from

Defendant's representation of him in a post-conviction proceeding. Plaintiff alleges a number of
1

 After Defen dant filed his M otion to Dismiss, Plaintiff filed a motion to amend his complaint along with an

amended complaint to which Defendant objected. The record on appeal, however, does not contain an order deciding

Plaintiff’s motion to amend his compla int.

2

 Plaintiff contends in his brief that he also served interrogatories on Defendant in June 2000, to which

Defendant did not respond. These discovery requests are attached only as an appendix to Plaintiff’s appellate brief and

are not con tained in the rec ord on ap peal. 

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bases for his claim, including that Defendant, who was court-appointed, failed to follow the mandate

of Tenn. Code Ann. § 40-30-204(e), which requires that a post-conviction petition or amended

petition be verified under oath. By the time Defendant was appointed as counsel, Plaintiff, acting

pro se, had filed a post-conviction petition which did not comply with Tenn. Code Ann. § 40-30-

204(e), because it was not properly verified under oath. Defendant filed an Amended Petition

(“Amended Petition”) on behalf of Plaintiff which also failed to comply with Tenn. Code Ann. § 40-

30-204(e), because it was not verified under oath. 

At the post-conviction hearing, the Criminal Court for Washington County, despite

the Amended Petition's lack of statutory compliance, considered the grounds raised in the Amended

Petition and dismissed Plaintiff's post-conviction claim. In its Order, the Criminal Court held that

the Amended Petition did not comply with Tenn. Code Ann. § 40-30-204, because it was not verified

under oath and did not state facts to support allegations that would require setting the matter for

hearing. The Criminal Court held that the petition was without merit. 

Plaintiff filed his legal malpractice Complaint against Defendant in January 2000.

Plaintiff served Defendant with Requests for Admission in April 2000. A few days later, Defendant

filed his Motion to Dismiss based upon Tenn. R. Civ. P. 12(b)(6). Plaintiff then served Defendant

with a pleading captioned “Motion for Production of Documents” which was essentially a Tenn. R.

Civ. P. 34 Request for Production of Documents. Next, Plaintiff filed a Motion for Extension of

Time to respond to Defendant’s Motion to Dismiss. Although inartfully drafted, Plaintiff outlined

the as-yet unanswered discovery requests as the basis of his motion. The record on appeal, contains

no order adjudicating this motion.1

On the date that the Motion to Dismiss was set for hearing, Defendant filed a Motion

for Extension of Time to respond to Plaintiff's discovery requests, asking that the time be extended

until after the Trial Court decided his Motion to Dismiss. Defendant's response to the Requests for

Admission was due a few days later. The Trial Court granted Defendant's Motion for Extension of

Time, ordering that Plaintiff’s discovery was stayed until after the Trial Court decided Defendant's

Motion to Dismiss. On the same date, the Trial Court took under advisement Defendant’s Motion

to Dismiss. In spite of the Trial Court’s order staying Plaintiff’s discovery, Defendant, however,

responded to Plaintiff’s Request for Production of Documents in July 2000. The Requests for

Admission remained unanswered by Defendant.2

Before the Trial Court decided Defendant's Motion to Dismiss, Defendant asked the

Trial Court to convert his Motion to Dismiss to a Motion for Summary Judgment. Defendant filed
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the affidavit of a local attorney in support of his Motion for Summary Judgment. The affidavit stated

that it was the local attorney's opinion that Defendant did not deviate from the applicable standard

of care for attorneys practicing within the local community. Defendant, in his Tenn. R. Civ. P. 56.03

Statement of Undisputed Facts, does not admit outright that he failed to prepare properly the

Amended Petition but, instead, states that the trial court dismissed the Amended Petition, in part,

because it was not properly sworn to.

The Trial Court granted Defendant’s Motion for Summary Judgment. In its Order

dismissing Plaintiff’s legal malpractice claim, the Trial Court held that notwithstanding Defendant’s

failure to comply with Tenn. Code Ann. § 40-30-204(e), the Criminal Court found the Amended

Petition to be without merit, and, therefore, Plaintiffsuffered no damages from the Amended Petition

not being verified under oath. The Trial Court further held that there was no proof that Defendant

deviated from the applicable standard of care. Additionally, the Trial Court held that Plaintiff’s

Complaint was frivolous. Plaintiff appeals. We vacate the Trial Court’s grant of summary

judgment.

Discussion

Although not stated exactly as such, the following issues are raised on appeal: (1) that

the Trial Court erred in granting summary judgment to Defendant because there are genuine issues

of material fact regarding whether Defendant’s conduct breached the applicable standard of care for

attorneys; (2) that the Trial Court erred when it stayed Plaintiff’s discovery until after it decided

Defendant’s Motion to Dismiss/Motion for Summary Judgment; (3) that this matter should be stayed

while Plaintiff’s appeal of his post-conviction petition is decided; and (4) that the Trial Court erred

in finding that his legal malpractice claim was frivolous.

On appeal, Defendant contends that the Trial Court correctly held that he was entitled

to summary judgment because there was no proof that Plaintiff suffered any damages as a result of

Defendant’s error in preparing the Amended Petition and no proof that Defendant deviated from the

applicable standard of care of attorneys. Defendant also argues that the Trial Court did not abuse

its discretion in suspending discovery in this matter. Finally, Defendant contends that Plaintiff’s

appeal is frivolous.

Our Supreme Court outlined the standard of review of a motion for summary

judgment in Staples v. CBL & Assoc., 15 S.W.3d 83 (Tenn. 2000):

The standards governing an appellate court's review of a motion for summary

judgment are well settled. Since our inquiry involves purely a question of

law, no presumption of correctness attaches to the lower court's judgment,

and our task is confined to reviewing the record to determine whether the

requirements of Tenn. R. Civ. P. 56 have been met. See Hunter v. Brown,

955 S.W.2d 49, 50-51 (Tenn.1997); Cowden v. Sovran Bank/Central South,

816 S.W.2d 741, 744 (Tenn.1991). Tennessee Rule of Civil Procedure 56.04
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provides that summary judgment is appropriate where: (1) there is no genuine

issue with regard to the material facts relevant to the claim or defense

contained in the motion, see Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993);

and (2) the moving party is entitled to a judgment as a matter of law on the

undisputed facts. See Anderson v. Standard Register Co., 857 S.W.2d 555,

559 (Tenn.1993). The moving party has the burden of proving that its motion

satisfies these requirements. See Downen v. Allstate Ins. Co., 811 S.W.2d

523, 524 (Tenn.1991). When the party seeking summary judgment makes a

properly supported motion, the burden shifts to the nonmoving party to set

forth specific facts establishing the existence of disputed, material facts

which must be resolved by the trier of fact. See Byrd v. Hall, 847 S.W.2d at

215. 

To properly support its motion, the moving party must either affirmatively

negate an essential element of the non-moving party's claim or conclusively

establish an affirmative defense. See McCarley v. West Quality Food Serv.,

960 S.W.2d 585, 588 (Tenn.1998); Robinson v. Omer, 952 S.W.2d 423, 426

(Tenn.1997). If the moving party fails to negate a claimed basis for the suit,

the non-moving party's burden to produce evidence establishing the existence

of a genuine issue for trial is not triggered and the motion for summary

judgment must fail. See McCarley v. West Quality Food Serv., 960 S.W.2d

at 588; Robinson v. Omer, 952 S.W.2d at 426. If the moving party

successfully negates a claimed basis for the action, the non-moving party may

not simply rest upon the pleadings, but must offer proof to establish the

existence of the essential elements of the claim.

The standards governing the assessment of evidence in the summary

judgment context are also well established. Courts must view the evidence

in the light most favorable to the nonmoving party and must also draw all

reasonable inferences in the nonmoving party's favor. See Robinson v. Omer,

952 S.W.2d at 426; Byrd v. Hall, 847 S.W.2d at 210-11. Courts should grant

a summary judgment only when both the facts and the inferences to be drawn

from the facts permit a reasonable person to reach only one conclusion. See

McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995); Carvell v. Bottoms, 900

S.W.2d 23, 26 (Tenn.1995).

Staples, 15 S.W.3d at 88-89; see also Madison v. Love, No. E2000-01692-COA-RM-CV, 2000 WL

1036362, at * 2 (Tenn. Ct. App. July 28, 2000) (holding that “[m]aterial supporting a motion for

summary judgment must do more than ‘nip at the heels’ of an essential element of a cause of action;

it must negate that element”). 

The crux of Plaintiff’s claim is based upon a legal malpractice theory. Our Supreme

Court outlined the elements of proof required to establish a legal malpractice claim as follows:
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The plaintiff in a malpractice case must prove that the attorney’s

conduct fell below that degree of care, skill, and diligence which is

commonly possessed and exercised by attorneys practicing in the

same jurisdiction . . . . In addition, the plaintiff must demonstrate a

nexus between the negligence and the injury.

Sanjines v. Ortwein and Assoc., P.C., 984 S.W.2d 907, 910 (Tenn. 1998) (citations omitted).

Although expert proof generally is required to establish the applicable standard of care and that the

attorney’s conduct fell below the applicable standard of care, it is not required “‘in cases involving

clear and palpable negligence . . . .’” Lazy Seven Coal Sales, Inc. v. Stone & Hinds, 813 S.W.2d

400, 406 (Tenn. 1991) (citations omitted); see also Bursack v. Wilson, 982 S.W.2d 341, 343 (Tenn.

Ct. App. 1998) (citations omitted)(holding that “‘expert testimony is required to establish negligence

and proximate cause . . . unless the alleged malpractice is within the common knowledge of

laymen’”). 

In this matter, Defendant submitted, in support of his Motion for Summary Judgment,

the affidavit of a local attorney who stated that Defendant’s conduct did not deviate from the

applicable standard of care. The record on appeal shows that Plaintiff did not submit a counteraffidavit from an expert witness. Plaintiff also failed to file the required response to Defendant’s

Rule 56.03 Statement of Undisputed Material Facts. 

In most legal malpractice cases, as the Trial Court found in this case, a plaintiff’s

failure to contravene an expert’s affidavit filed in support of a motion for summary judgment would

be fatal to his claim. See, e.g., Bursack v. Wilson, 982 S.W.2d 343-45; Hasek v. Holt, No. 03A01-

9706-CV-00210, 1998 WL 2505, at * 3 (Tenn. Ct. App. Jan. 6, 1998); Bradfield v. Cole, No. 02A01-

9707-CV-00171, 1998 WL 79886, at * 2-3 (Tenn. Ct. App. Feb. 26, 1998). This Court, however,

is at a loss as to how Defendant’s undisputed failure to follow the clear requirement of Tenn. Code

Ann. § 40-3-204(e), that a post-conviction petition must be verified under oath, does not constitute

a failure to comply with the applicable standard of care. In fact, although this issue is not raised

specifically on appeal, we note that Plaintiff may not need expert proof to establish that Defendant’s

undisputed failure to verify under oath the Amended Petition did not meet the applicable standard

of care. See Lazy Seven Coal Sales, Inc. v. Stone & Hinds, 813 S.W.2d at 406; Bursack v. Wilson,

982 S.W.2d at 343. Such a determination, however, does not relieve Plaintiff from the necessity of

proving damages resulting from the failure to verify under oath the Amended Petition.

In Plaintiff’s post-conviction hearing, the Criminal Court considered the Amended

Petition on its merits, despite its not being sworn to, and dismissed it. In this matter, the Trial Court

held that Defendant’s conduct had no bearing on the final outcome of Plaintiff’s post-conviction

petition since the Amended Petition was considered on its merits, and, therefore, Plaintiff sustained

no damages from Defendant’s failure to comply with Tenn. Code Ann. § 40-3-204(e).

The Trial Court also held there was no proof in the record that Defendant had

deviated in any way from the applicable standard of care required of him. As discussed above, we
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believe there is at least a genuine issue as to whether or not Defendant’s failure to have the Amended

Petition verified under oath deviated from the applicable standard of care. We also recognize that

there is no dispute from the record before us that that possible violation of the applicable standard

of care resulted in no damages to Plaintiff. Other than that possible violation, the record contains

no proof that Defendant deviated in other way from the applicable standard of care. 

Our inquiry, however, cannot end with our review of the Trial Court’s granting of

Defendant’s Motion for Summary Judgment based upon the record then before it. If that were the

only issue on appeal, we would affirm the Trial Court. See Tenn. R. Civ. P. 56.04; Madison v. Love,

2000 WL 1036362, at * 2. On appeal, Plaintiff also questions the Trial Court’s order that

completely blocked Plaintiff’s attempts at discovery before it ruled on Defendant’s Motion to

Dismiss/Motion for Summary Judgment. We agree with Plaintiff that the Trial Court erred in

prohibiting Plaintiff’s discovery in this matter before it ruled on Defendant’s motion and, we,

therefore, vacate the Trial Court’s grant of summary judgment.

 

A trial court’s decision to limit discovery is discretionary and subject to an abuse of

discretion review by this Court. See Marcus v. Marcus, 993 S.W.2d 596, 601 (Tenn. 1999); State,

Dep’t of Commerce and Ins. v. FirstTrust Money Serv., Inc., 931 S.W.2d 226, 230 (Tenn. Ct. App.

1996). Therefore, we will not reverse a trial court’s decision regarding discovery matters unless it

“‘affirmatively appears that the trial court’s decision was against logic or reasoning, and caused an

injustice or injury to the party complaining.’” Marcus v. Marcus, 993 S.W.2d at 601 (citations

omitted).

This Court has addressed the policy of the Tennessee Rules of Civil Procedure

regarding discovery as follows:

The Tennessee Rules of Civil Procedure embody a broad policy

favoring the discovery of any relevant, non-privileged evidence.

* * * * * *

In light of the rules’ broad policy favoring discovery, the party

opposing discovery must demonstrate with more than conclusory

statements and generalizations that the discovery limitations being

sought are necessary ‘to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense. . . .’ A trial

court should decline to limit discovery if the party seeking the

limitations cannot produce specific facts to support its request.

A trial court should balance the competing interests and hardships

involved when asked to limit discovery and should consider whether

less burdensome means for acquiring the requested information are

available . . . . If the court decides to limit discovery, the
3

 It should be noted the ho lding of Whisnant v. By rd, that a prisoner has a constitutional right to a stay of his

civil proceedings while his criminal conviction is being appealed, was overruled by Sanjines v. Ortwein & Assoc., 984

S.W.2d at 910. See also Logan v. Winstead, 23 S.W.3d 297, 302 (T enn. 200 0) (holding that an inmate h ad no ab solute

right to have his civil litigation stayed until his release or to be present for each stage of the case’s proceedings).

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reasonableness of its order will depend on the character of the

information being sought, the issues involved, and the procedural

posture of the case.

Duncan v. Duncan, 789 S.W.2d 557, 560-61 (Tenn. Ct. App. 1990) (citations omitted).

Balanced against this liberal discovery policy are the limits placed upon a prisoner’s

right to pursue a civil action while incarcerated. Both our Supreme Court and the United States

Supreme Court have recognized a prisoner’s constitutional right to pursue a civil lawsuit during

incarceration, but with limitations. Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060

(1948); Sanjines v. Ortwein & Assoc., 984 S.W.2d at 910 (quoting Whisnant v. Byrd, 525 S.W.2d

152, 153 (Tenn. 1975) (holding that this right is “‘qualified and restricted’”).3 In addition, this

Court has recognized that the trial court may impose “appropriate limitations” on the scope and

manner of the discovery of a prisoner who has brought a civil lawsuit. Bradfield v. Dotson, No.

02A01-9707-CV-00152, 1998 WL 63521, at * 3 (Tenn. Ct. App. Feb. 17, 1998) (holding that the

trial court may limit discovery to means that are “‘less problematic’” and “not‘highly disruptive of

prison administration’”) (quoting Bell v. Godinez, 92 C 8447, 1995 WL 519970, at * 2 (N.D. Ill.

Aug. 30, 1995)). Further, Rule 26 of the Tennessee Rules of Civil Procedure provides that in any

civil matter, trial courts may “limit discovery that is unreasonably burdensome, duplicative, or

cumulative in relation to the positions of the parties or the issues asserted.” Ahkeen v. Parker, No.

W1998-00640-COA-R3-CV, 2000 WL 52771, at * 8 (Tenn. Ct. App. Jan. 10, 2000) (citing Tenn.

R. Civ. P. 26.02(1)).

A previous decision of this Court, Bradfield v. Dotson, 1998 WL 63521, at * 3, is

instructive. In Bradfield, this Court reversed the trial court’s grant of summary judgment to the

defendants where the plaintiff, a pro se prisoner, previously filed a motion to compel discovery. Id.,

at * 1-2. The Bradfield court found that the trial court erred when it failed to consider the plaintiff’s

motion to compel discovery before granting the defendants’ motion for summary judgment. Id., at

* 3. The court in Bradfield held that discovery could be “limit[ed] . . . to that which is pertinent to

the [d]efendant’s motion for summary judgment, and may weigh the plaintiff’s interests against the

institutional concerns of the [c]orrectional [f]acility.” Id.; see also Thompson v. Hammond, No.

02A01-9808-CV-00221, 1999 WL 188292, at * 5-6 (Tenn. Ct. App. Apr. 6, 1999) (reversing the trial

court’s grant of summary judgment where the pro se prisoner’s discovery requests were unanswered

and where the trial court failed to consider plaintiff’s motion to compel discovery); Sweatt v.

Compton, No. 02A01-9710-CV-00252, 1999 WL 43290, at * 8 (Tenn. Ct. App. Feb. 2, 1999)

(reversing summary judgment where the trial court did not permit adequate discovery for the pro se

prisoner’s Eighth Amendment claim before granting defendants’ motion for summary judgment).
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In addition, this Court has recently recognized the importance of allowing a plaintiff

to engage in discovery so that the plaintiff has a chance to defend himself against a pending motion

for summary judgment. Conger v. Gowder, No. E2000-01584-COA-R3-CV, 2001 WL 301155, at

* 5 (Tenn. Ct. App. Mar. 29, 2001) (no appl. perm. app. filed as of date of this opinion) (holding that

“[s]ince it is the defendant – and not the plaintiff – who has the initial burden on summary judgment,

generally speaking the plaintiff has the right to test the defendant’s supporting affidavits by careful

cross-examination during a discovery deposition”). This Court in Conger vacated the trial court’s

grant of summary judgment to the defendant where the trial court blocked the plaintiff’s discovery

efforts by granting the defendant a protective order. Id., at *6. 

In the case at hand, we hold that the Trial Court erred in blocking Plaintiff’s discovery

before it issued its decision regarding Defendant’s Motion to Dismiss/Motion for Summary

Judgment. In its order staying discovery, the Trial Court did not find that Plaintiff’s discovery

requests to Defendant would disrupt or concern any institutional interests of the correctional facility

where Plaintiff is incarcerated. See, e.g., Bradfield v. Dotson, 1998 WL 63521, at * 3. Moreover,

neither the Trial Court nor Defendant cited any of the reasons for limiting discovery outlined in

Tenn. R. Civ. P. 26.02(1) and 26.03. Defendant’s only stated basis for asking the Trial Court to halt

discovery was that his Motion to Dismiss was being taken under advisement by the Trial Court

shortly before Defendant’s answers to Plaintiff’s discovery requests were due. Finally, the record

on appeal contains no order showing that the Trial Court considered Plaintiff’s request for more time

to respond to Defendant’s Motion to Dismiss, wherein Plaintiff cited his outstanding discovery

requests as the basis for his request. See id., at * 3; Thompson v. Hammond, 1999 WL 188292, at

* 5-6. As a result of the Trial Court’s decision, Plaintiff was denied any opportunity to engage in

relevant discovery prior to the dismissal of his case and was consequently denied any real

opportunity to defend against Defendant’s motion. See Conger v. Gowder, 2001 WL 301155, at *5.

This Opinion in no way gives Plaintiff on remand any broader rights to discovery than

those created under the Tennessee Rules of Civil Procedure. Plaintiff, any plaintiff, deserves the

opportunity to undertake timely and relevant discovery in compliance with the Tennessee Rules of

Civil Procedure in order to defend against a motion for summary judgment. On remand, the Trial

Court, if so requested by Defendant, may limit Plaintiff’s discovery to that which is pertinent to

Defendant’s Motion for Summary Judgment.

Plaintiff also contends that the Trial Court should have stayed the proceedings of this

case during the pendency of his post-conviction appeal. The record on appeal, however, shows that

Plaintiff did not request such a stay at the trial level. As this Court noted in Smith v. Harriman Util.

Bd., 26 S.W.3d 879 (Tenn. Ct. App. 2000):

‘Our jurisdiction is appellate only, T.C.A. § 16-4-108(a)(1), and thus

the rule has long been well-settled that [t]his Court can only consider

such matters as were brought to the attention of the trial court and

acted upon or [pretermitted] by the trial court.
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* * * * * * 

This issue was not addressed by the trial judge or pretermitted by

him; it cannot be raised for the first time on appeal.’

Smith, 26 S.W.3d at 887 (alterations in original) (quoting Stewart Title Guar. Co. v. F.D.I.C., 936

S.W.2d 266, 270-71 (Tenn. Ct. App. 1996)). As it appears that Plaintiff raises this issue for the first

time on appeal, we will not address it further.

Since Plaintiff is partially successful in this appeal, we reject Defendant’s argument

that Plaintiff’s appeal is frivolous. See Tenn. Code Ann. § 27-1-122; Industrial Dev. Bd. of the City

of Tullahoma v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995) (holding that a “frivolous

appeal is one that is ‘devoid of merit,’. . . or one in which there is little prospect that it can ever

succeed”). 

Conclusion

The judgment of the Trial Court is vacated, and this cause is remanded to the Trial

Court for such further proceedings as may be required consistent with this Opinion, and for

collection of the costs below. The costs on appeal are assessed against the Appellee, Michael D.

Kellum, and his surety, if any.

___________________________________ 

D. MICHAEL SWINEY, JUDGE