Mary Beasley Schaeffer and Ellis Beasley Long, as personal representative of the Estate of Emma Glass Beasley v. Jan Garrison Thompson ( 2023 )

Rel: April 21, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2022-2023
_________________________
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Mary Beasley Schaeffer and Ellis Beasley Long, as personal
representative of the Estate of Emma Glass Beasley, deceased
v.
Jan Garrison Thompson
Appeal from Dallas Circuit Court
(CV-2013-900142)
SC-2022-0813
MITCHELL, Justice.
This case arises from a long-running family dispute over property
in Perry County, which culminated in a trial and an appeal to this Court.
See Schaeffer v. Poellnitz, 154 So. 3d 979 (2014). Unhappy with the
result in the underlying litigation, two of the family members -- Mary
Beasley Schaeffer ("Mary") and Ellis Beasley Long ("Ellis"), as the
personal representative of the estate of Emma Glass Beasley,
deceased -- sued their attorney, Jan Garrison Thompson, claiming that
he committed malpractice when he represented them. Thompson moved
for summary judgment and presented evidence that he did not commit
malpractice. In response, Mary and Ellis submitted expert testimony
stating that Thompson violated the standard of care owed by attorneys.
The trial court ruled for Thompson and entered summary judgment in
his favor. Mary and Ellis appealed. We affirm.
Facts and Procedural History
Emma Glass Beasley ("Emma") and Lyle Glass Young ("Lyle")
jointly inherited Westwood, a parcel of land in Perry County. Emma had
two children -- Mary and Ellis -- and Lyle had three -- Eddie, Billy, and
Adele. In 1996, Emma and Lyle placed Westwood in a trust called the
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Westwood Management Trust ("the Trust"). Emma was named trustee.
Two years later, Emma and her children obtained a $28,000 judgment
against Lyle's children ("the Marengo County judgment") in an unrelated
matter.
In 2005, Eddie, who had lived on Westwood, died. William M.
Poellnitz was named administrator of his estate. A dispute arose
between, on one side, Poellnitz, Billy, and Adele ("the Young branch")
and, on the other, Emma and Mary. The Young branch sued Emma and
Mary in the Perry Circuit Court asserting several counts, including
mismanagement of the Trust and conversion. Emma and Mary
counterclaimed, seeking the payment of debts the Young branch
allegedly owed them. Shortly before the case went to trial, Emma died,
and Ellis, as personal representative of her estate, was substituted as a
party.
The case was tried to a jury in 2011. At the conclusion of the trial,
the jury awarded the Young branch (1) $63,915 for mismanagement of
the Trust; (2) $3,645 for conversion of Eddie's property; (3) one-half of the
furnishings and heirlooms in the house located on Westwood ("the
Westwood house"), valued at $172,000; and (4) $200,000 in punitive
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damages to each of Eddie's estate, Billy, and Adele. On the
counterclaims, the jury awarded Emma and Mary $8,043 against Billy
and $8,043 against Veronica Young, Billy's wife, who had also been
named as a counterclaim defendant. After the trial court entered
judgment, Mary and Ellis appealed. This Court affirmed the judgment
in part and reversed it in part. Poellnitz, 154 So. 3d at 991.
In 2013, while the appeal of the underlying case was still pending,
Mary and Ellis sued their attorney, Thompson, in the Dallas Circuit
Court alleging malpractice. They alleged that Thompson had made the
following three errors at trial amounting to malpractice: (1) in support of
the counterclaims for debts owed by the Young branch, Thompson
submitted into evidence the Marengo County judgment, which they say
rendered that judgment unenforceable; (2) Thompson failed to ask for a
jury instruction defining the term "hereditaments," which they say was
necessary for the jury to determine which items belonged to the Trust;
and (3) Thompson failed to obtain an independent appraisal of the value
of the furnishings and heirlooms in the Westwood house, without which
they argue the jury could not determine the items' value.
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Thompson filed a motion for summary judgment, which the trial
court granted. Mary and Ellis appealed, and the Court of Civil Appeals
reversed the judgment because, it said, Thompson had not supported his
motion with substantial evidence. See Schaeffer v. Thompson, 303 So.
3d 159, 162 (Ala. Civ. App. 2020). On remand, Thompson again moved
the trial court for summary judgment, arguing that he had not violated
the standard of care owed by attorneys because, he said, each challenged
decision was a matter of trial strategy. He supported this second motion
with his own testimony as well as expert testimony from his opposing
counsel in the underlying case. Mary and Ellis opposed his motion with
expert testimony from another lawyer stating that Thompson had
violated the standard of care. The trial court granted Thompson's
motion. Mary and Ellis appealed.
Standard of Review
On appeal from a summary judgment, this Court applies de novo
" 'the same standard of review the trial court used in determining
whether the evidence presented to the trial court created a genuine issue
of material fact.' " American Liberty Ins. Co. v. AmSouth Bank, 825 So.
2d 786, 790 (Ala. 2002) (citation omitted). The initial burden is on the
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movant to establish that no genuine issue of material fact exists.
Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So. 2d 369,
372 (Ala. 2000). The burden then shifts to the nonmovant to present
substantial evidence creating a genuine issue of material fact. Id."[S]ubstantial evidence is evidence of such weight and quality that fair-
minded persons in the exercise of impartial judgment can reasonably
infer the existence of the fact sought to be proved." West v. Founders Life
Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989); see also § 12-
21-12(d), Ala. Code 1975.
Analysis
In this appeal, Mary and Ellis say that they presented evidence that
created a genuine issue of material fact as to whether Thompson
breached the standard of care under the Alabama Legal Services
Liability Act, § 6-5-570 et seq., Ala. Code 1975. After reviewing the
relevant parts of the record, it is clear they did not.
"[A] lawyer owes his client a duty to exercise 'such reasonable care
and skill and diligence as other similarly situated legal service providers
in the same general line of practice in the same general area ordinarily
have and exercise in a like case.' " Herring v. Parkman, 631 So. 2d 996,
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1002 (Ala. 1994) (quoting § 6-5-580(1), Ala. Code 1975); cf. Pinkston v.
Arrington & Graham, 98 Ala. 489, 494, 13 So. 561, 562 (1893) (observing
that it is the "duty and responsibility of an attorney to his client" to
provide legal services " 'with due care, diligence and skill' " (citation
omitted)). To prevail on a claim of legal malpractice, the plaintiff " 'must
prove the same basic elements as in a negligence action: duty, breach,
proximate cause, and damages.' " Herring, 631 So. 2d at 1001 (quoting
Pickard v. Turner, 592 So. 2d 1016, 1019 (Ala. 1992)). But the plaintiff
must also prove that (1) "in the absence of the alleged malpractice, the
plaintiff would have been entitled to a more favorable result in the legal
matter" and (2) "the attorney's negligence in fact caused the outcome of
the legal matter to be less favorable to the plaintiff." Bonner v. Lyons,
Pipes & Cook, P.C., 26 So. 3d 1115, 1120 (Ala. 2009).
A legal-malpractice defendant who moves for summary judgment
may support that motion "with evidence that makes a prima facie
showing that the defendant did not act negligently." McDowell v.
Burford, 646 So. 2d 1327, 1328 (Ala. 1994). The burden then shifts to the
plaintiff, who "must rebut the defendant's prima facie showing with
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expert testimony indicating that the defendant lawyer did act
negligently" to survive summary judgment. Id.Herring is instructive in setting out how the burden-shifting
framework operates in a legal-malpractice case. In Herring, the
plaintiffs alleged that the defendant had breached the standard of care
by advising them not to testify at trial. 631 So. 2d at 1002. The defendant
moved for summary judgment and supported his motion with his own
sworn testimony that "he advised [the plaintiffs] not to testify because he
did not want to subject either of them to cross-examination or
impeachment by the prosecution." Id. The Houston Circuit Court
granted the motion. Id. On appeal, this Court, drawing on doctrine
developed in the ineffective-assistance-of-counsel context, acknowledged
that " 'the decision not to call a particular witness is usually a tactical
decision' for the attorney." Id. (quoting Luke v. State, 484 So. 2d 531, 533
(Ala. Crim. App. 1985)). Because the defendant had submitted evidence
that his "recommendation that [the plaintiffs] not testify … was based on
a decision within the province of [the defendant's] exercise of judgment
as to trial strategy," this Court held that the burden shifted to the
plaintiffs to rebut his evidence. Id. Because the plaintiffs did not carry
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their burden by submitting substantial evidence or stating the reasons
why they could not do so under Rule 56(f), Ala. R. Civ. P., this Court
affirmed the summary judgment for the defendant. Id. at 1002-03.
Here, there is no dispute that Thompson carried his initial burden.
Rather, Mary and Ellis argue that, after the burden shifted to them, they
met it by presenting substantial evidence that three of Thompson's
decisions at trial breached the standard of care: (1) "introducing the
Marengo County judgment at trial," (2) "not submitting the proper jury
charges related to the meaning of the word hereditaments," and (3) "not
presenting evidence as to the actual value of the furnishings and
heirlooms." Mary and Ellis's brief at 14. Mary and Ellis say that they
made the required showing regarding each of these decisions through
expert testimony. But they did not make that showing. To demonstrate
the inadequacy of their evidence, we examine each of their arguments
below -- and we do so by beginning with the evidence that Thompson
brought forward, to which they were required to respond.
A. The Marengo County Judgment
Mary and Ellis first argue that they created a genuine issue of
material fact as to whether Thompson's decision to introduce the
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Marengo County judgment into evidence at trial constituted malpractice.
In his motion for summary judgment, Thompson relied on his own
testimony to argue that he "made this decision in the exercise of his
professional judgment as to trial strategy, which met the appropriate
standard of care and was consistent with controlling Alabama law." He
argued that he did so to show that the Young branch "had no reason [for]
suing [Mary] and [Ellis] since the [Young branch was] indebted to [Mary]
and [Ellis] and the Trust in various amounts."
Thompson also supported his motion with expert testimony from
Woodford W. Dinning, Jr., his opposing counsel in the underlying case.
Dinning stated that Thompson's decision to introduce the Marengo
County judgment into evidence "was done in the exercise of [Thompson's]
professional judgment relating to trial strategy and which, in [Dinning's]
opinion, met the appropriate standard of care and was consistent with
controlling Alabama law." Dinning continued: "The fact that [Dinning's]
clients had failed to obey a court order and 1997 Court judgment placed
[Dinning's] client's credibility seriously at issue, and the action taken by
Mr. Thompson was an astute decision, in [Dinning's] opinion."
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Mary and Ellis sought to rebut Thompson's evidence with the
affidavit of another attorney, James Starnes, who testified as an expert
on their behalf. Based on his review of the record, Starnes testified that
"the Marengo County Judgment should not have been introduced at
trial[,] and it was below the standard of care for Thompson having done
so," and that, "[b]ut for [Thompson's] introduction of the judgment at
trial, the judgment would have remained valid and enforceable following
trial in the underlying litigation." Mary and Ellis argue that "[t]he
testimony of Attorney Starnes was substantial evidence of Thompson's
breach of the standard of care and was sufficient to defeat Thompson's
summary judgment motion" as to the Marengo County judgment. Mary
and Ellis's brief at 18.
But Starnes's affidavit fell short as rebuttal evidence. The
assertions in his affidavit were conclusory -- they did not dispute that
Thompson's decision was one of trial strategy or provide evidence that,
despite its strategic nature, the decision was made in a way that
impugned Thompson's care, skill, or diligence. As this Court has said,
bare conclusory facts and statements in an affidavit do not constitute
substantial evidence in summary-judgment proceedings. B.M. v. Crosby,
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581 So. 2d 842, 843 (Ala. 1991) (citing Nowell v. Mobile Cnty. Health
Dep't, 501 So. 2d 468, 470 (Ala. Civ. App. 1986)). Mary and Ellis's
reliance on Starnes's affidavit is thus misguided, and they have failed to
demonstrate grounds for reversing the trial court's judgment as to this
issue.
B. Jury Instructions
Mary and Ellis next contend that Thompson breached his duty to
them by not submitting jury charges defining the word "hereditaments."
Mary and Ellis's brief at 14, 17-18. Thompson again relied on his own
affidavit to argue for summary judgment, stating that he "made this
decision in the exercise of his professional judgment as to trial strategy,
which met the appropriate standard of care and was consistent with
controlling Alabama law." He said that "he made this tactical trial
decision since there was sufficient testimony and evidence presented at
trial to be able to exercise common sense and judgment to determine the
meaning of hereditaments." Specifically, he noted, "[m]ultiple witnesses
testified as to the personal property that was a part of the Westwood
home and further explained the historical significance of that property."
He also said that he "recall[ed] asking the court for a jury charge on
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hereditaments, but the charge was refused." Thompson again reinforced
his motion with Dinning's testimony indicating that Thompson's decision
about a jury instruction was strategic and that it met the standard of
care.
In arguing that they provided evidence sufficient to create a
genuine issue of material fact, Mary and Ellis point to Starnes's affidavit,
which stated: "I find no facts that indicate Thompson explained or
instructed the Jury as to the meaning of 'hereditaments.' " The affidavit
continued: "In my opinion and experience the term 'Hereditaments' is
seldom used today," and "the underlying jury, without any instructions
or information to the contrary, had insufficient knowledge of the term to
make a reasonable finding of fact regarding the Westwood Management
Hereditaments property." Id. Accordingly, Starnes said: "Thompson's
representation fell below the applicable standard of care in not
instructing the jury as to the term 'hereditaments.' " Starnes concluded:
"But for Thompson's breach of the standard of care by not informing the
Jury of this issue the Jury had insufficient instructions in which to make
an appropriate finding of fact regarding the issue if the items belong with
the Westwood Management Trust or otherwise."
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Starnes's affidavit was inadequate on this issue as well. Thompson
argued that the decision not to ask for a jury instruction defining the
term "hereditaments" was within the province of his professional
judgment as to trial strategy. He provided evidence that he made this
decision based on his subjective belief that the jury adequately
understood the term. Even if Starnes was correct that the jury did not in
fact have sufficient knowledge of the word "hereditaments" and that
Thompson failed to ask the court to define the term, Starnes's testimony
did nothing to dispute the strategic nature of Thompson's decision or
show that Thompson's understanding of the jury's knowledge was
unreasonable in the circumstances. Starnes's testimony was, once again,
conclusory and did not create an issue of fact. Accordingly, Mary and
Ellis have not shown that the trial court erred in entering summary
judgment in favor of Thompson as to this decision.
C. Value of Furnishings and Heirlooms
Mary and Ellis's final contention is that Thompson violated the
standard of care by "not presenting evidence as to the actual value of the
[Westwood] furnishings and heirlooms." Mary and Ellis's brief at 14. In
his motion, again relying on his own affidavit, Thompson argued that he
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"made this decision as to trial strategy, which met the appropriate
standard of care and was consistent with controlling Alabama law." He
stated that he "made this tactical trial decision since Mary Schaeffer had
offered testimony that disputed the $170,000 appraisal presented by the
Young branch at trial." Further, he said that "Ms. Schaeffer testified that
the value of the furnishings was much less than the appraisal and that
they were only insured for $60,000." Thompson again supported his
argument with testimony from Dinning stating that Thompson's
strategic decision met the standard of care.
Unlike the two preceding issues, Mary and Ellis did not present
expert testimony purporting to rebut Thompson's evidence on this issue.
Rather, they argue that they met their burden here because, according to
them, "this issue falls within the common knowledge exception to the
general rule requiring expert testimony in a legal malpractice action."
Mary and Ellis's brief at 19. Indeed, while expert testimony is ordinarily
required to defeat summary judgment on a legal-malpractice claim, this
Court has recognized an exception "where a legal-service provider's want
of skill or lack of care is so apparent as to be understood by a layperson
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and requires only common knowledge and experience to understand it."
Valentine v. Watters, 896 So. 2d 385, 394 (Ala. 2004).
Mary and Ellis's argument is unavailing because they have not
made any substantive argument that the exception applies. They say
that "resolution of this issue does not require scientific, technical, or other
specialized knowledge in order for the trier of fact to determine whether
the applicable standard of care was breached." Mary and Ellis's brief at
19. And they assert that "[a] layperson utilizing common knowledge and
experience can certainly make this determination." Id. But these
statements are conclusory and provide no substantial basis for
dispensing with the expert-testimony requirement. Because Mary and
Ellis did not rebut Thompson's showing with expert testimony or show
that the common-knowledge exception applies, they have failed to
establish that the trial court erred in entering summary judgment for
Thompson as to the appraisal decision.
Conclusion
Mary and Ellis have not demonstrated that the trial court erred in
entering summary judgment in favor of Thompson. Therefore, we affirm.
AFFIRMED.
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Shaw, Wise, Bryan, and Cook, JJ., concur.
Parker, C.J., and Sellers, Mendheim, and Stewart, JJ., concur in
the result, without opinion.
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