# FILED Ap ril 4, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk CHARLES K. LO CKWOOD and ) FRANKIE L. LOCKW OOD, ) ) Plaintiffs/App ellants, ) ) Appeal No. ) 01-A-01-9509- CV-00422 VS. ) ) Marion Circuit ) No. 7663 WILLIAM M. ABLES, ) ) Defendant/Appellee. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE

APPEALE D FRO M THE C IRCU IT COU RT OF M ARION COUN TY AT JASPER, TENNES SEE THE HONORABLE WILLIAM INMAN, JUDGE

STEVEN M. JAC OWAY PATRICK, BEARD & RICHARDSON, P.C. Suite 202, Market Court 537 Market Str

eet Chattanooga, Tennes see 37402 Attorney for Plaintiffs/Appella nts GEORGE LANE F OSTER FOSTER, FOSTER, ALLEN & DURRENCE 515 Pioneer Bank Building 801 Broad Street Chattanooga, Tennes see 37402 Attorney for Defendant/Appellee

REVERSED AN D REMAND ED

BEN H. CAN TRELL, JUDGE CONCUR: LEW IS, J. KOCH, J.- 2 - 

## O P I N I O N

In this lega l malpracti ce case, the tri al judge di rected a ve rdict for the defe n dant because he found that theplaintiffs failed to prove that bu t for the defendant ’s negligence they would have won their law suit. We reverse and remand for a new trial.

I.

O n Ma rch 12, 1982, the plaintiffs, Mr. and Mrs. Loc kwood, ag reed to purchase a tract of land i n Marion Cou nty from Rober t Baugh. The ag reement described the property in general terms as runni ng wit h the lines of surr ounding landowners

and called for “200 acres, more or less.”

On July 13, 1982, Mr. Ba ugh su ed Ch arle s Floyd Cleveland for trespass to the northern por

tion of the property and asked that the court establis h the boundary line between thetwo ow ners. Since the prope rty in di spute was pa rt of the propert y sold to the Lockwoods, Mr. Baugh told the Lockwoo ds about the acti on but assumed the burden of the li tigation hi mself.

After a hearin g on May

12, 1983, the chanc ellor sig ned an order awarding the fifty-five acres in di spute to Mr. Baugh. On July 9, 1984, however, the chancellor

granted Mr. Cleveland’s motion to alter or amend and ordered further proof. After the second hearing t he chancellor took the case und er advise ment.

At this point th e Lockwoods sought leg al help from the defendant. They testified that their only purpose in consulting the defendant was to get him to tal k to the chancello r privately to urge him to render a decision. Instead, against their- 3 -

wishes, the defendantfiled a motion to inter vene in the bo undary dis pute and moved to reopen the proof. The c hancellor granted the motion and he ard more evidence on May 9, 1985. One of the w itnesses offered by the defenda n t on behalf of the appellantsowned property in the area and, despite having given favora ble pr e-trial statements to the defendant and Mr . Lockwood, his trial testi mony hurt the Lockwoods. The c han cello r’s f inal decr ee awa rded the p rope rty i n dispute to Mr. Cleveland. The decision was affirm ed on appeal.

At the hearing below, the Lockwoods called Mr. Baugh’s atto rney as a witness. He testified t hat he advised the defendan t not to call the unfaithf ul witness because the witnes s was unreliable and had int erests in the area that were antagonistic to the Lockwoods. The attorney also testified that in his opi nion (1) the defendant was neg ligent becau se he did not g et a writ ten statement from the witness, and that (2) the cas e had been won for Mr. Baugh a nd the Lockwoods until the defendant put o n theaddi tion al p roof
. At the end of the plai ntiff s’ proof the trial judge directed a verdict in favor of the defen dant, holding that there was no proof on which the jury could find that the al leged negl igence of the defendant was th e pro xi mate cause of the Lockwoods’ loss of the fifty-five ac res.

II.

We have stated t he facts in the li ght most favor able to the plaintiffs, as we are requi red to do in rev iewing a directed verdict. Cecil v. Hardin , 575 S.W.2d 268 (Tenn. 1978). To establ ish a cause of act ion for legal malp rac tic e thepla inti ff must show that the attorney’s negli gent actswere the p roximate cause of some loss to the plai ntiff. Blocker v. De arborn and Ewing, 851 S.W.2d 825 (Tenn. App. 1992). The loss claimed in thi s case is th e value of the fifty-five acre s that was the subject of the original lawsuit . At oral ar gument the Lockw

oods’ attorney

confirmed that fact. Thus, the issue on appeal is whethe r t he jury could have decided that the def endant’s- 4 -

negligence caused the adverse result in thatcont roversy . In Gay & Taylor , Inc. V. America n Cas. Co. , 381 S.W.2d 304 (Tenn. App. 1963), the court said:

“The burden of prov ing t hat dama ges result ed from th e ne gligence of an attorney, or from his failur e to follow in structions, in connection with the pr osecution or de f ens e of a sui t rests upon the client and usually requires the client to demonstrate that, but for the negligence complained of, the client would have been successf ul in the prosecution or defense of the acti on in questi on.” 381 S.W.2d at 306.

I n lega l malpractice cases wehave adopted a r ule analogous to the medical malpractice rule that requiresexpert pr oof to establish a cause of action. S ee Cleckner v. Dale , 719 S.W.2d 535 (Tenn. App. 1986). In medi cal malpracti ce cases the rule requir es expert p roof to establis h both the standard of care and causati on. See Tucker v. M

etropolitan Gov

ernment , 686 S.W .2d 87 (Tenn. App. 1984); Stokes
v. Leung , 651 S.W.2d. 704 (Tenn. App. 1982). It is arguable that in legal malpractice cases it is not necessary to prove causation by expert proof, because the onl y cases requiri ng expert pr

oof have dealt w ith the standar d of care. But we do not have to decide that questi on he re becaus e the Lockwoods offe red proof from Mr. Baugh’s attorney that in his o pinion the defendant was negligent and that the case was lost because of the testimony of the witness es called by the defendant. While that is not conc lusive we thin k it is enou gh to t ake t he ca se to the j ury.

The judgment of the cour t below i s revers ed and the cause is remanded to the Circuit Court of Marion Cou nty for f urther p roceed ings in accordance with this opinion. Tax the costs on appeal to the appellee.- 5 - ____________________________ BEN H. CAN TRELL, JUDGE

CONCUR:

_______________________________ SAMUEL L. LEWIS, JUDGE

_______________________________ WILLIAM C. KOCH, JR., J UDGE

IN THE COURT OF APPEALS OF TEN NESSEE MIDDLE SEC TION AT NASHVILLE

) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01 VS. ) ) County ) No. ) ) Defendant/Appellee. )



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ENTER this _____ day of March, 1996.- 6 - _____________________________ BEN H. CAN TRELL, JUDGE