Charles K. Lockwood and Frankie L. Lockwood v. William M. Ables ( 1996 )

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.
)
) FILED
April 4, 1996
COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
MIDDLE SECTION AT NASHVILLE Appellate Court Clerk
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.
OPINION
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. )
ORDER
ENTER this _____ day of March, 1996.
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_____________________________
BEN H. CANTRELL, JUDGE
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