FILED

April 4, 1996

Cecil W. Crowson

Appellate Court Clerk

CHARLES K. LOCKWOOD and )

FRANKIE L. LOCKWOOD, )

)

Plaintiffs/Appellants, )

) Appeal No.

) 01-A-01-9509-CV-00422

VS. )

) Marion Circuit

) No. 7663

WILLIAM M. ABLES, )

)

Defendant/Appellee. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CIRCUIT COURT OF MARION COUNTY

AT JASPER, TENNESSEE

THE HONORABLE WILLIAM INMAN, JUDGE

STEVEN M. JACOWAY

PATRICK, BEARD & RICHARDSON, P.C.

Suite 202, Market Court

537 Market Street

Chattanooga, Tennessee 37402

Attorney for Plaintiffs/Appellants

GEORGE LANE FOSTER

FOSTER, FOSTER, ALLEN & DURRENCE

515 Pioneer Bank Building

801 Broad Street

Chattanooga, Tennessee 37402

Attorney for Defendant/Appellee

REVERSED AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR:

LEWIS, J.

KOCH, J.
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O P I N I O N

In this legal malpractice case, the trial judge directed a verdict for the

defendant because he found that the plaintiffs failed to prove that but for the

defendant’s negligence they would have won their lawsuit. We reverse and remand

for a new trial.

I.

On March 12, 1982, the plaintiffs, Mr. and Mrs. Lockwood, agreed to

purchase a tract of land in Marion County from Robert Baugh. The agreement

described the property in general terms as running with the lines of surrounding

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

On July 13, 1982, Mr. Baugh sued Charles Floyd Cleveland for trespass

to the northern portion of the property and asked that the court establish the boundary

line between the two owners. Since the property in dispute was part of the property

sold to the Lockwoods, Mr. Baugh told the Lockwoods about the action but assumed

the burden of the litigation himself. 

After a hearing on May 12, 1983, the chancellor signed an order

awarding the fifty-five acres in dispute 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 the chancellor took the case under advisement.

At this point the Lockwoods sought legal help from the defendant. They

testified that their only purpose in consulting the defendant was to get him to talk to

the chancellor privately to urge him to render a decision. Instead, against their
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wishes, the defendant filed a motion to intervene in the boundary dispute and moved

to reopen the proof. The chancellor granted the motion and heard more evidence on

May 9, 1985. One of the witnesses offered by the defendant on behalf of the

appellants owned property in the area and, despite having given favorable pre-trial

statements to the defendant and Mr. Lockwood, his trial testimony hurt the

Lockwoods. The chancellor’s final decree awarded the property in dispute to Mr.

Cleveland. The decision was affirmed on appeal.

At the hearing below, the Lockwoods called Mr. Baugh’s attorney as a

witness. He testified that he advised the defendant not to call the unfaithful witness

because the witness was unreliable and had interests in the area that were

antagonistic to the Lockwoods. The attorney also testified that in his opinion (1) the

defendant was negligent because he did not get a written statement from the witness,

and that (2) the case had been won for Mr. Baugh and the Lockwoods until the

defendant put on the additional proof. At the end of the plaintiffs’ proof the trial judge

directed a verdict in favor of the defendant, holding that there was no proof on which

the jury could find that the alleged negligence of the defendant was the proximate

cause of the Lockwoods’ loss of the fifty-five acres. 

II.

We have stated the facts in the light most favorable to the plaintiffs, as

we are required to do in reviewing a directed verdict. Cecil v. Hardin, 575 S.W.2d 268

(Tenn. 1978). To establish a cause of action for legal malpractice the plaintiff must

show that the attorney’s negligent acts were the proximate cause of some loss to the

plaintiff. Blocker v. Dearborn and Ewing, 851 S.W.2d 825 (Tenn. App. 1992). The

loss claimed in this case is the value of the fifty-five acres that was the subject of the

original lawsuit. At oral argument the Lockwoods’ attorney confirmed that fact. Thus,

the issue on appeal is whether the jury could have decided that the defendant’s
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negligence caused the adverse result in that controversy. In Gay & Taylor, Inc. V.

American Cas. Co., 381 S.W.2d 304 (Tenn. App. 1963), the court said:

“The burden of proving that damages resulted from the

negligence of an attorney, or from his failure to follow

instructions, in connection with the prosecution or defense

of a suit rests upon the client and usually requires the

client to demonstrate that, but for the negligence

complained of, the client would have been successful in

the prosecution or defense of the action in question.”

381 S.W.2d at 306.

In legal malpractice cases we have adopted a rule analogous to the

medical malpractice rule that requires expert proof to establish a cause of action. See

Cleckner v. Dale, 719 S.W.2d 535 (Tenn. App. 1986). In medical malpractice cases

the rule requires expert proof to establish both the standard of care and causation.

See Tucker v. Metropolitan Government, 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 only cases

requiring expert proof have dealt with the standard of care. But we do not have to

decide that question here because the Lockwoods offered proof from Mr. Baugh’s

attorney that in his opinion the defendant was negligent and that the case was lost

because of the testimony of the witnesses called by the defendant. While that is not

conclusive we think it is enough to take the case to the jury.

The judgment of the court below is reversed and the cause is remanded

to the Circuit Court of Marion County for further proceedings in accordance with this

opinion. Tax the costs on appeal to the appellee.
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____________________________

BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________

SAMUEL L. LEWIS, JUDGE

_______________________________

WILLIAM C. KOCH, JR., JUDGE

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

)

)

Plaintiff/Appellant, )

) Appeal No.

) 01-A-01

VS. )

) County

) No.

)

)

Defendant/Appellee. )

O R D E R

ENTER this _____ day of March, 1996.
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_____________________________

BEN H. CANTRELL, JUDGE