### IN THE CO URT OF APPEALS OF TENNE SS EE AT NASHVILL E Ju ly 8, 20 09 Ses si on
JO SEPH B ARNA v. PRESTON L AW GRO UP, P. C., E T A L 

### . Appeal f rom the Circ uit Court for Davidson County No. 07C-580 Joe P . Bin kley, Jr., Judge

No. M2008- 02560-COA-R 3-CV - F iled Augu st 25, 2009

P A T R I C I A J

. C O T T R E L L , P.J ., M.S. concurr ing.

I write separ ately beca

use, while I ag ree with the result of the majority opinion, I disag ree as to which eleme nt of the plaintiff’s c laim was not neg ated by the def endant movingparty

. Mr. P reston’s affidavit st ated that he was fa miliar with the applicable standard of car e and that h e d i d n o t brea ch that standard. Simi lar statements have been found sufficie nt to shift the burden of production of evidenc e t o t h e plaintiff nonmoving party in a number of medical malp ra cti ce and l eg al m alpra ctice case s. Even if those statements, s tanding alone, are considere d conclusory opinions, Mr. Preston’s aff idavit g oes further

. It includes a number of fac tual statements reg arding actions he took in repr esenting Mr. Barna

. I do n ot think it is nece ssary that he address
ever y alleg ation in the complaint, only that he prese nt evidenc e to shift the burden to the plaintiff to come forwa

rd with contra dicting ev i d en ce m aterial to the leg al claims prese nted so as to cre ate a dispute of fa ct. I

would find that the def

endant met that bur den.
Wit h reg ard to the element of causation, howeve r, the defe ndant did not prese nt evidenc e to shift the burden of production to the plaintiff. The require ment for proving causa tion in this ty

pe of suit is well-settled.
When a leg al malprac tice claim is based on the neg lige nt ha ndling of litigation that results in an adver se judgme nt or a dismiss al of a claim, the plaintiff must prove that it would have preva iled in the und er l ying action had it not been for the neg lige nt conduct of its lawy er. Shearon v. Seaman , 198 S.W .3d at 214; Gay & Taylor, Inc. v. Am. Cas. Co. of Reading, Pa. , 53 Tenn.App. 1 2 0 , 1 2 5 , 381 S.W .2d 304, 306 (1964).F N2 Acc ording ly , a plaintiff bring ing a leg al malprac tice action must prove a case -within-a- case

. Viar v. Palmer , No. W2004-02080-COA-R3-CV, 2 0 0 5 WL 1606067, at *4 (Tenn.Ct.App. J uly 6, 2005) (No Tenn. R. Ap p

. P. 11 application filed); B ruce v. Olive , 1996 WL 93580, at *3. In the first case , the plaintiff must prove that its lawyer' s conduct fell belo w t h e ap plicable standard of car e. In the second c ase, the plaintiff must prove that it had a meritorious claim or reme dy thatit lost or that it was found liable when it sho uld not have been due to its attorney ' s

neg lige nce. See M

ihailovich v. Laatsch , 359 F.3d 892, 904- 05 (7th Cir.2004).

FN2. See also J essup v. Tague, No. E2 0 0 2

- 0 2 0 5 8

- CO A

- R3

- CV , 2004 WL 2709203, at *3 (Tenn.Ct.App. Nov. 29, 2004) (No Tenn. R.App. P. 11 application filed); Br uce v. Olive, No. 03A01-9509-CV- 00310, 1996 WL 93580, at *3-4 (Tenn.Ct.App. Mar. 4,1996) (No Tenn. R.App. P. 11 application filed).
Austin v. Sneed, No. M2006-00083-COA- R3-CV, 2007 WL 3375335, at *5 (Te nn. Ct. App. Nov. 13, 2007).

I n his a ffidavit, Mr. Preston did not provide any fac tual statements to prove that Mr. Ba rna would not have p re v ai led in the arbitration reg ardle ss of any alleg ed neg lige nce on Mr. Preston’s part. The only

statements in the af

fidavit reg ardingcausation were : Any thing that I did, or alleg edly failed to do, in repr esenting Mr. Ba rna did not cause or will not cause Mr. Ba

rna to incur any injury or damag es. Any injury or damag es alleg edly suffe red by Mr. Ba rna wer e not cause d by any neg lige nt act or omission on my part.
These are conclusory asser tions, and no fac ts wer e produce d to support these conclusions or to show that Mr. Ba

rna would not have preva iled in the arbitration absent any neg lige nce on the part of Mr. Preston.

Acc ording ly , Iag ree that the motion for summary judgme nt should not have bee n g rante d, but my co n cl u s i o n rests on the defe ndant’s failure to neg ate a differ ent element of the plaintiff’s claim.

____________________________________ PATRI CI A J . COTTREL L , P.J ., M.S.

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