Anthony T. Grose v. David Kustoff ( 2022 )

06/29/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
January 11, 2022 Session
ANTHONY T. GROSE ET AL. v. DAVID KUSTOFF ET AL.
Appeal from the Circuit Court for Shelby County
No. CT-001777-17 Robert S. Weiss, Judge
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No. W2021-00427-COA-R3-CV
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In this case involving allegations of attorney misconduct and negligence, the trial court
granted summary judgment in favor of the defendant attorneys and their respective firms.
The defendants had previously represented the plaintiffs in a wrongful death lawsuit until
the defendants withdrew from representation. The trial court determined that the
plaintiffs’ claims were barred by the applicable statute of limitations and that the
plaintiffs had failed to refute the affidavit of one defendant attorney, who opined that the
pertinent standard of care had not been breached. The plaintiffs have appealed.
Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and CARMA DENNIS MCGEE, J., joined.
Anthony T. Grose; Corwin Grose; Jefferson Grose, III; Curtis Grose; and Herbert Grose,
Memphis, Tennessee; and Lonita Grose Dowdy, North Las Vegas, Nevada, Pro Se.
Brian S. Faughnan, Memphis, Tennessee, for the appellees, David F. Kustoff, Bernie
Kustoff, Kustoff & Strickland PLLC, and Law Office of Bernie Kustoff.1
1
As explained in a later section of this Opinion, the Shelby County Chancery Court appointed an
administrator ad litem to represent Bernie Kustoff’s estate following his death in 2019. The appellate
record does not clearly indicate whether the administrator ad litem was substituted as a party defendant
for Bernie Kustoff in this matter. Therefore, we have listed Mr. Kustoff individually as an appellee. No
disrespect is intended.
OPINION
I. Factual and Procedural Background
This case originated with the filing of individual pro se complaints by six siblings
in the Shelby County Circuit Court (“trial court”), naming as defendants attorneys David
F. Kustoff and Bernie Kustoff as well as their respective law firms, Kustoff & Strickland
PLLC and the Law Office of Bernie Kustoff (collectively, “Defendants”). During a
previous appeal in this matter, this Court set forth the pertinent facts as follows:
On April 21, 2017, Plaintiffs/Appellants Anthony T. Grose, Lonita
Grose-Dowdy, Herbert Grose, Curtis Grose, Corwin Grose, and Jefferson
Grose, III (collectively, “Plaintiffs”), acting pro se, each filed separate, but
identical complaints against Defendants/Appellees David Kustoff, Bernie
Kustoff, Kustoff & Strickland PLLC, and the Law Office of Bernie Kustoff
(collectively, “Defendants”). The complaints were captioned as alleging
claims of “Attorney Abandonment, Malpractice, [and] Negligence.” The
complaints alleged that Defendants were retained by Plaintiffs, who are
siblings, to litigate a wrongful death action regarding Plaintiffs’ mother.
After the filing of the complaint in the wrongful death action, Plaintiffs
asserted that Defendants moved to withdraw from the representation
without cause, leaving Plaintiffs in a “pro se status, and then failed to
provide any guidance to ethically assist [Plaintiffs] in finding alternative
means of counsels.” The trial court eventually granted Defendants’ motion
to withdraw from the wrongful death action on April 22, 2016. According
to the complaint, the withdrawal violated several ethical rules applicable to
attorneys, including the duty of due diligence, causing considerable damage
to Plaintiffs.
On June 8, 2017, Defendants filed a motion to consolidate the five
pending actions and to transfer all the cases to one trial judge. Plaintiffs
each opposed the transfer, but Defendants’ motion was granted and all the
pending complaints were eventually transferred to Division VII of the
Shelby County Circuit Court.
On June 29, 2017, Defendants filed a motion to dismiss the pending
actions for failure to state a claim upon which relief can be granted.
Specifically, the motion and accompanying memorandum alleged that the
claims were barred by the one-year statute of limitations applicable in legal
malpractice actions. According to Defendants, the statute of limitations
began to run on March 29, 2016, when the motion to withdraw was filed in
the wrongful death action, more than one year prior to the filing of the
instant lawsuits. Defendants attached to their motion the filed motion to
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withdraw from the wrongful death action, which contained a certificate of
service indicating that it had been mailed to Plaintiffs on March 29, 2016,
as well as the April 22, 2016 order granting the motion to withdraw.
On or about July 31, 2017, each plaintiff filed a motion to amend
their complaints to add additional factual averments; the amended
complaints were attached to the motions. The motions specifically sought
leave of court to file such amendments.
***
The amended complaints further alleged that it was wrongful for
Defendants to seek to withdraw from the representation for “no apparent
reasonings(s)” after they had “gained pertinent offensive relevant
evidentiary material facts as to the causes, theories being pursued to an
investigation” in the wrongful death action. According to Plaintiffs, this
action “caused justice delayed” including emotional distress to Plaintiffs.
As the amended complaints alleged “if the Defendants had handled the case
correctly, competent without, abandonment, [Plaintiffs] would have been
successful in relief” in the wrongful death action and that “Defendants pre-
withdraw intent failed to meet discovery deadlines set by the court that,
place Plaintiffs in an unwarranted, awkward position, pro se status position
to have their case being subjected to the court’s [d]ismiss[al] for failure to
prosecute[ ] or co[o]perate in good faith. This cause[d] [P]laintiffs irritable
harm.” In support, Plaintiffs noted that a motion to compel, as well as a
motion to dismiss had been granted in the wrongful death action. Plaintiffs
further asserted that following the withdrawal, Defendants wrongfully
withheld the discovery file from Plaintiffs.
Hearings on the motion to dismiss in the instant case were held on
August 18 and 23, 2017. Following the hearings, on or about September 6,
2017, each plaintiff filed a response in opposition to Defendants’ motion to
dismiss. On the same day, the trial court entered an order granting
Defendants’ motion to dismiss. Therein, the trial court ruled that Plaintiffs
were on notice of their alleged injury by Defendants as soon as they
received the motion to withdraw filed in the wrongful death action.
According to the trial court, “[b]ased upon the assertion in the Complaint
that the Defendants abandoned the Plaintiff’s [sic] case, the Plaintiff’s [sic]
knew or should have known that once they received the Motion to
Withdraw that no further actions would be taken on their case.” As such,
the trial court dismissed Plaintiffs’ claims. Plaintiffs filed timely notices of
appeal.
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Following the entry of the trial court’s order, however, it was
discovered that the docket number concerning Plaintiff Jefferson Grose, III,
was not included in the final order. Consequently, no final order had been
entered as to Jefferson Grose. Jefferson Grose therefore asked that his
appeal be dismissed as premature; the motion was granted by this Court by
order of November 27, 2017. Upon remand, Defendants filed a motion to
correct a clerical error in the trial court to reflect that the judgment of
dismissal applied to Jefferson Grose. For his part, Jefferson Grose filed a
second motion for leave of court to file an amended complaint. Eventually,
the trial court entered an order on January 9, 2018, correcting the prior
order of dismissal to apply to the claims raised by Jefferson Grose, as well
as denying the second motion to file an amended complaint as moot.
Jefferson Grose thereafter again appealed, and his appeal was consolidated
with that of his siblings.
Grose v. Kustoff, No. W2017-01984-COA-R3-CV, 2019 WL 244469, at *1 (Tenn. Ct.
App. Jan. 17, 2019) (“Grose I”) (footnotes omitted).
The Grose I Court ultimately determined that the trial court had erred by granting
Defendants’ motion to dismiss without fully considering the pending motions to amend
the complaints filed by Anthony Grose (“Mr. Grose”) and his siblings (collectively,
“Plaintiffs”) or providing reasons for its denial of the motions to amend. See id. at *6.
The Grose I Court accordingly vacated the trial court’s judgment of dismissal and
remanded the case for further proceedings. Id.
Following remand, Plaintiffs filed motions seeking to stay the proceedings
pending an outcome in the underlying wrongful death litigation. Plaintiffs also filed
further motions seeking to amend their complaints. On July 31, 2019, Defendants filed a
suggestion of death stating that Bernie Kustoff had passed away on July 19, 2019.
Plaintiffs subsequently filed a motion asking the court to substitute David Kustoff or his
counsel as a party defendant in place of Bernie Kustoff.
On August 23, 2019, Plaintiffs filed a “consolidated” proposed amendment to their
complaints, appearing to add claims of fraud and “deceit.” Plaintiffs also attempted to
add Jim Strickland as a party defendant. On September 3, 2019, the trial court entered an
order granting Plaintiffs’ motion to amend but denying the motion to add Mr. Strickland
as a defendant. Plaintiffs were ordered to file their amended complaints, naming the
Estate of Bernie Kustoff as the proper party defendant, within thirty days of the order’s
entry.
Plaintiffs subsequently filed motions seeking to substitute other named defendants
or their counsel in place of Bernie Kustoff and seeking an extension of time to file their
amended complaint. Defendants opposed both motions, arguing that Plaintiffs had
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enjoyed ample time within which to file an amended complaint and that Plaintiffs had
also had sufficient time to pursue the proper procedure for substituting a party in place of
Mr. Kustoff.
On October 30, 2019, Plaintiffs filed individual amended complaints, each naming
the Estate of Bernie Kustoff as an additional party defendant. Defendants subsequently
filed an answer to the amended complaints, denying liability and asserting the affirmative
defenses of, inter alia, expiration of the statute of limitations, unclean hands, and lack of
damages. Plaintiffs filed various “exhibits” with the court, including a copy of a consent
order entered by the Shelby County Chancery Court appointing attorney Stephen
Vescovo as administrator ad litem for the Estate of Bernie Kustoff.
On August 24, 2020, Defendants filed a motion for summary judgment, asserting
that there were no genuine issues of material fact and that Defendants were entitled to
judgment as a matter of law. In their motion, Defendants stated in pertinent part:
The record in this matter demonstrates four undisputed aspects of
this matter that combine to require judgment for Defendants as a matter of
law. First, well more than one year before filing this lawsuit, Plaintiffs
communicated in writing to Defendants about differences of opinion and
disagreements with how the Defendants viewed and were handling their
case prior to Defendants moving for a court order allowing their withdrawal
as counsel. Second, the record demonstrates that Defendants’ motion for
leave to withdraw itself was filed and served on Plaintiffs more than one
year before Plaintiffs filed these lawsuits. Third, the record demonstrates
that, despite the motion being opposed by Plaintiffs, Defendants were
granted leave of Court to withdraw as counsel for Plaintiffs, and that
Plaintiffs did not file any appeal of that order. Fourth, the record also
demonstrates that, after being granted leave to withdraw, Defendants
provided a copy of the entire file thereafter on request to Plaintiff Lonita
Grose-Dowdy and then provided a subset of that file — certain discovery
materials — to Plaintiff Jefferson Grose, III. In addition, the record also
demonstrates an overall entitlement to judgment as a matter of law for
Defendants because Plaintiffs have not come forward with any expert
testimony to support any claim for legal malpractice against David Kustoff.
In support of their summary judgment motion, Defendants filed a declaration of
David Kustoff, wherein he stated that he and his late father, Bernie Kustoff, had agreed to
represent Plaintiffs “in pursuing a wrongful death lawsuit over the passing of their mother
in an accident that occurred on July 18, 2015.” David Kustoff related that he and his
father had entered into a contingency fee agreement with Plaintiffs, a copy of which he
attached to his declaration. He further explained that during his representation, Plaintiffs
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began to express misgivings concerning the manner the case was being handled, such that
he and his father felt they had no choice but to seek withdrawal from the case.
According to David Kustoff, he and his father communicated their decision to
withdraw to Jefferson Grose, III, via telephone before filing their motion to withdraw on
March 29, 2016. He further stated that on April 1, 2016, he sent a letter via certified mail
to Plaintiffs, “spell[ing] out the reasons we were ending the relationship,” and he
subsequently provided copies of the file to Jefferson Grose, III, and Lonita Grose-
Dowdy. David Kustoff attached copies of the signed contingency fee agreement with
Plaintiffs; copies of correspondence he sent to Plaintiffs; and copies of correspondence he
received from Plaintiffs, including a March 30, 2016 letter from Jefferson Grose, III, and
Lonita Grose-Dowdy, “acknowledge[ing] verbal receipt that [David Kustoff and his firm]
will no longer be representing Lonita Grose-Dowdy and Jefferson Grose III, Co-Admin
of the Estate of Lucille Grose, Deceased in the lawsuits filed in DIV. VII, against State
Farm, Charles Stone, and Wrongful Death.” David Kustoff further opined that he and his
late father had complied with the applicable standard of care at all times. Defendants
concomitantly filed a statement of undisputed material facts.
On September 8, 2020, certain Plaintiffs filed separate objections to Defendants’
motion for summary judgment along with statements of disputed facts. Certain Plaintiffs
also referenced cross-motions for summary judgment, although such cross-motions do
not appear in the appellate record. Defendants filed a response, asserting that they had
not been served with cross-motions for summary judgment. Plaintiffs subsequently filed
motions seeking to have the summary judgment motion hearing reset. The motion
hearing was thereafter reset to January 22, 2021.
On January 15, 2021, Plaintiffs filed a motion seeking to have the summary
judgment motion hearing reset and also requesting to have “unresolved pending motions
and issues” heard prior to the summary judgment hearing. On January 20, 2021,
Plaintiffs filed a motion to “strike” the hearing on January 22, 2021. On February 9,
2021, Plaintiffs filed a motion for “reconsideration and motion for relief from a pending
judgment of order of pending orders of the court’s decision of a hearing conducted on 01-
22-2021 9:00 AM pursuant to Rule 7, 4 and Rule 60(B).” Plaintiffs also filed an affidavit
from Lonita Grose-Dowdy stating that although she did receive mailings from
Defendants’ counsel on January 8 and 16, 2021, notifying her of the summary judgment
hearing date, she was not provided with two weeks’ notice before the hearing.
On March 22, 2021, the trial court entered an order concerning Defendants’
motion for summary judgment. The court found that Defendants had previously
represented Plaintiffs in a wrongful death lawsuit on a contingency fee basis. The court
also found that on March 17, 2016, “Plaintiffs sent a letter to David Kustoff stating they
were requesting a ‘Letter of Release’ stating Mr. Kustoff would not be representing the
Grose family ‘in any Legal Action Claim against the MPD/City of Memphis, Due to
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Conflict of Interest.’” Plaintiffs’ letter provided a March 29, 2016 deadline for the
“release.” The court further determined that Plaintiffs had communicated to Defendants
“Plaintiffs’ desire to add conspiracy theory claims to the wrongful death claims, which
Defendants believed were without merit and declined to pursue.”
According to the trial court’s findings, on “March 29, 2016, the Defendants filed
their Motion for Leave to Withdraw from the wrongful death litigation and informed the
Plaintiff, Jefferson Grose, III of their decision via telephone.” The court found that
Plaintiffs sent a letter to Defendants on March 30, 2016, acknowledging the end of the
attorney-client relationship. The court further found that Plaintiffs were served with the
motion seeking withdrawal on April 1 or 2, 2016. Defendants were granted leave to
withdraw by court order entered April 22, 2016, and Plaintiffs filed the instant lawsuit on
April 21, 2017.
The trial court concluded that Plaintiffs’ claims concerning conduct occurring
before April 22, 2016, were barred by the one-year statute of limitations contained in
Tennessee Code Annotated § 28-3-104. The court specifically determined that “[t]he
public filing of the motion to withdraw as counsel on March 29, 2016 constitutes at least
a slight inquiry to the attorney-client relationship, and the action is transparent in terms of
providing obvious knowledge of the lawyers’ own role in such conduct.” The court
further concluded that conduct occurring after April 22, 2016, could not form a basis for
a claim of legal malpractice because the attorney-client relationship had ended by that
time.
The trial court further determined that although David Kustoff had filed a
declaration opining that he and his father had complied with the applicable standard of
care at all times during their representation of Plaintiffs, Plaintiffs had failed to provide
any expert testimony demonstrating a departure from the standard of care. As such, the
court concluded that Plaintiffs had failed to demonstrate breach of duty or proximate
cause. The court therefore granted summary judgment in favor of Defendants and denied
all other pending motions.
On April 6, 2021, Plaintiffs filed “objections” and a “response” to the trial court’s
order. Mr. Grose filed a notice of appeal on April 21, 2021, purportedly on behalf of all
Plaintiffs.
On April 7, 2022, this Court entered an order remanding the matter to the trial
court for the limited purpose of adjudicating Plaintiffs’ claims of fraud and breach of
contract, or for certification of the March 22, 2021 order as final pursuant to Tennessee
Rule of Civil Procedure 54.02, inasmuch as the trial court’s March 22, 2021 order had not
specifically addressed those claims. On April 19, 2022, the trial court entered an
amended order granting summary judgment in favor of Defendants. In this order, the
trial court determined that Plaintiffs’ fraud claims had not been pled with specificity and
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that Plaintiffs had presented no evidence to support “any claim of fraud against the
Defendants with respect to their conduct in the delivery of legal services.” The trial court
further determined that although Plaintiffs had labeled certain claims as breach of
contract, the gravamen of those claims sounded in legal malpractice. The court stated:
“Tennessee law is clear that claims against an attorney whether sounding in tort or for
breach of contract are properly viewed as legal malpractice.” Plaintiffs each timely filed
respective notices of appeal following entry of the trial court’s final judgment.
II. Issues Presented
Mr. Grose, the sole appellant filing a brief, presents the following issues for our
review, which we have restated slightly:
1. Whether the trial court erred by granting summary judgment in favor
of Defendants.
2. Whether the trial court erred by determining that Plaintiffs’ claims
were barred by the applicable statute of limitations.
3. Whether the trial court erred by disregarding Plaintiffs’ cross-
motions for summary judgment.
4. Whether the trial court erred by failing to address Plaintiffs’ motion
to stay the proceedings until the underlying wrongful death lawsuit
was resolved.
5. Whether the trial court erred by failing to dispose of Plaintiffs’
claims of fraud and breach of contract.
6. Whether the trial court erred in relying on David Kustoff’s
declaration when granting summary judgment in favor of
Defendants.
7. Whether the trial court erred by failing to order the attorneys and
unrepresented parties to appear for a pretrial conference.
8. Whether the trial court erred by “failing to engage in the ad litem
judiciary process . . . for Bernard ‘Bernie’ Kustoff, deceased
Defendant.”
9. Whether the trial court erred by declining to allow Plaintiffs to add
Jim Strickland as a party defendant.
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III. Standard of Review
The grant or denial of a motion for summary judgment is a matter of law;
therefore, our standard of review is de novo with no presumption of correctness. See Rye
v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); Dick
Broad. Co. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013) (citing
Kinsler v. Berkline, LLC, 320 S.W.3d 796, 799 (Tenn. 2010)). As such, this Court must
“make a fresh determination of whether the requirements of Rule 56 of the Tennessee
Rules of Civil Procedure have been satisfied.” Rye, 477 S.W.3d at 250. “Statutory
construction is a question of law that is reviewable on a de novo basis without any
presumption of correctness.” In re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009).
As our Supreme Court has explained concerning the requirements for a movant to
prevail on a motion for summary judgment pursuant to Tennessee Rule of Civil
Procedure 56:
[W]hen the moving party does not bear the burden of proof at trial, the
moving party may satisfy its burden of production either (1) by
affirmatively negating an essential element of the nonmoving party’s claim
or (2) by demonstrating that the nonmoving party’s evidence at the
summary judgment stage is insufficient to establish the nonmoving party’s
claim or defense. We reiterate that a moving party seeking summary
judgment by attacking the nonmoving party’s evidence must do more than
make a conclusory assertion that summary judgment is appropriate on this
basis. Rather, Tennessee Rule 56.03 requires the moving party to support
its motion with “a separate concise statement of material facts as to which
the moving party contends there is no genuine issue for trial.” Tenn. R.
Civ. P. 56.03. “Each fact is to be set forth in a separate, numbered
paragraph and supported by a specific citation to the record.” Id. When
such a motion is made, any party opposing summary judgment must file a
response to each fact set forth by the movant in the manner provided in
Tennessee Rule 56.03. “[W]hen a motion for summary judgment is made
[and] . . . supported as provided in [Tennessee Rule 56],” to survive
summary judgment, the nonmoving party “may not rest upon the mere
allegations or denials of [its] pleading,” but must respond, and by affidavits
or one of the other means provided in Tennessee Rule 56, “set forth specific
facts” at the summary judgment stage “showing that there is a genuine issue
for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party “must do more
than simply show that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co., 475 U.S. [574,] 586, 106 S. Ct. 1348,
[89 L.Ed.2d 538 (1986)]. The nonmoving party must demonstrate the
existence of specific facts in the record which could lead a rational trier of
fact to find in favor of the nonmoving party. If a summary judgment
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motion is filed before adequate time for discovery has been provided, the
nonmoving party may seek a continuance to engage in additional discovery
as provided in Tennessee Rule 56.07. However, after adequate time for
discovery has been provided, summary judgment should be granted if the
nonmoving party’s evidence at the summary judgment stage is insufficient
to establish the existence of a genuine issue of material fact for trial. Tenn.
R. Civ. P. 56.04, 56.06. The focus is on the evidence the nonmoving party
comes forward with at the summary judgment stage, not on hypothetical
evidence that theoretically could be adduced, despite the passage of
discovery deadlines, at a future trial.
Rye, 477 S.W.3d at 264-65. “Whether the nonmoving party is a plaintiff or a
defendant—and whether or not the nonmoving party bears the burden of proof at trial on
the challenged claim or defense—at the summary judgment stage, ‘[t]he nonmoving party
must demonstrate the existence of specific facts in the record which could lead a rational
trier of fact to find in favor of the nonmoving party.’” TWB Architects, Inc. v. The
Braxton, LLC, 578 S.W.3d 879, 889 (Tenn. 2019) (quoting Rye, 477 S.W.3d at 265).
Pursuant to Tennessee Rule of Civil Procedure 56.04, the trial court must “state the legal
grounds upon which the court denies or grants the motion” for summary judgment, and
our Supreme Court has instructed that the trial court must state these grounds “before it
invites or requests the prevailing party to draft a proposed order.” See Smith v. UHS of
Lakeside, Inc., 439 S.W.3d 303, 316 (Tenn. 2014).
We recognize that Plaintiffs are pro se litigants and respect their decision to
proceed self-represented. With regard to self-represented litigants, this Court has
explained:
Pro se litigants who invoke the complex and sometimes technical
procedures of the courts assume a very heavy burden. Gray v. Stillman
White Co., 522 A.2d 737, 741 (R. I. 1987). Conducting a trial with a pro se
litigant who is unschooled in the intricacies of evidence and trial practice
can be difficult. Oko v. Rogers, 125 Ill. App.3d 720, 81 Ill. Dec. 72, 75,
466 N.E.2d 658, 661 (1984). Nonetheless, trial courts are expected to
appreciate and be understanding of the difficulties encountered by a party
who is embarking into the maze of the judicial process with no experience
or formal training.
Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988). Although
parties proceeding without benefit of counsel are “entitled to fair and equal treatment by
the courts,” we “must not excuse pro se litigants from complying with the same
substantive and procedural rules that represented parties are expected to observe.”
Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003). In addition, this Court
must “be mindful of the boundary between fairness to a pro se litigant and unfairness to
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the pro se litigant’s adversary.” Id. Moreover, “[p]ro se litigants are not . . . entitled to
shift the burden of litigating their case to the courts.” See Chiozza v. Chiozza, 315
S.W.3d 482, 487 (Tenn. Ct. App. 2009) (quoting Whitaker v. Whirlpool Corp., 32 S.W.3d
222, 227 (Tenn. Ct. App. 2000)).
IV. Proper Parties on Appeal
As a threshold matter, we note that Mr. Grose has averred in his appellate brief
that he is acting on behalf of all Plaintiffs and that he purported to sign the brief as a
representative of his siblings. However, as Mr. Grose admits, he is not an attorney
licensed to practice law in the State of Tennessee; therefore, he cannot appear or file
pleadings on behalf of the other plaintiffs. See Tenn. Code Ann. § 23-3-103 (2021) (“No
person shall engage in the practice of law . . . unless the person has been duly licensed
and while the person’s license is in full force and effect[.]”); Tenn. Sup. Ct. R. 7, § 1.01
(prohibiting the unauthorized practice of law); Elm Children’s Educ. Tr. v. Wells Fargo
Bank, N.A., 468 S.W.3d 529, 533 (Tenn. Ct. App. 2014) (holding that a non-attorney
trustee could not represent the trust in court). As this Court has previously explained:
Under Tennessee law, any person may conduct and manage his or
her own case in any court of this state. Tenn. Code Ann. § 23-1-109. . . .
However, the right of self-representation only allows an individual to
conduct and manage “the person’s own case in any court of this state.” See
id. (emphasis added). Accordingly, pro se litigants may not litigate on
behalf of another individual.
Vandergriff v. ParkRidge E. Hosp., 482 S.W.3d 545, 552 (Tenn. Ct. App. 2015). In
accordance with this authority, Mr. Grose cannot represent his siblings in this Court or
any court of this State.
We note that Mr. Grose’s siblings filed individual notices of appeal in this matter
following the trial court’s entry of a final judgment. However, they did not file
individual appellate briefs raising issues for this Court’s review or notices stating that
they were adopting Mr. Grose’s appellate brief. Accordingly, we will confine our
analysis herein to the issues raised by Mr. Grose on his own behalf. The trial court’s
judgment shall remain undisturbed as to Mr. Grose’s siblings, who failed to file briefs
raising issues for review or to adopt Mr. Grose’s brief. See In re Conservatorship of
Tapp, No. W2020-00216-COA-R3-CV, 2021 WL 225684, at *6 (Tenn. Ct. App. Jan. 22,
2021) (leaving judgment undisturbed as to parties who did not participate in appeal);
Cordova ex rel. Alfredo C. v. Nashville Ready Mix, Inc., No. M2018-02002-COA-R3-
CV, 2020 WL 2534322, at *5 n.9 (Tenn. Ct. App. May 19, 2020) (leaving judgment
undisturbed as to party who did not appeal).
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V. Propriety of Grant of Summary Judgment Concerning Legal Malpractice Claims
Several of Mr. Grose’s issues presented address the propriety of the trial court’s
grant of summary judgment in favor of Defendants. We determine one issue to be
dispositive, however; namely, whether the trial court erred by granting summary
judgment in favor of Defendants while relying on David Kustoff’s declaration. We
conclude that the trial court did not err and that summary judgment in Defendants’ favor
was properly granted.
Concerning a motion for summary judgment, Tennessee Rule of Civil Procedure
56.03 provides in pertinent part:
In order to assist the Court in ascertaining whether there are any
material facts in dispute, any motion for summary judgment made pursuant
to Rule 56 of the Tennessee Rules of Civil Procedure shall be accompanied
by a separate concise statement of the material facts as to which the moving
party contends there is no genuine issue for trial. Each fact shall be set
forth in a separate, numbered paragraph. Each fact shall be supported by a
specific citation to the record.
Any party opposing the motion for summary judgment must, not
later than five days before the hearing, serve and file a response to each fact
set forth by the movant either (i) agreeing that the fact is undisputed, (ii)
agreeing that the fact is undisputed for purposes of ruling on the motion for
summary judgment only, or (iii) demonstrating that the fact is disputed.
Each disputed fact must be supported by specific citation to the record.
Such response shall be filed with the papers in opposition to the motion for
summary judgment.
In the case at bar, Defendants filed a motion for summary judgment and properly
supported such motion with a statement of undisputed material facts. In support of their
summary judgment motion, Defendants also filed David Kustoff’s declaration, which
stated in pertinent part:
At all times during the representation of Plaintiffs up until we were
permitted to withdraw on April 22, 2016, both I and my father complied
with the relevant standard of care required of lawyers in Tennessee.
Specifically, at all relevant times from August 1, 2015 until April 22, 2016,
I and my late father exercised the degree of care, skill, and diligence
commonly possessed by, and exercised by, other attorneys practicing in
Tennessee.
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Although Mr. Grose filed a response to Defendants’ summary judgment motion and
statement of undisputed material facts, Mr. Grose did not file any type of expert affidavit
or other proof contradicting David Kustoff’s declaration that Defendants had complied
with the applicable standard of care. As our Supreme Court has instructed:
“[W]hen a motion for summary judgment is made [and] . . . supported as
provided in [Tennessee Rule 56],” to survive summary judgment, the
nonmoving party “may not rest upon the mere allegations or denials of [its]
pleading,” but must respond, and by affidavits or one of the other means
provided in Tennessee Rule 56, “set forth specific facts” at the summary
judgment stage “showing that there is a genuine issue for trial.” Tenn. R.
Civ. P. 56.06. The nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co., 475 U.S. [574,] 586, 106 S. Ct. 1348, [89 L. Ed. 2d 538(1986)]. The nonmoving party must demonstrate the existence of specific
facts in the record which could lead a rational trier of fact to find in favor of
the nonmoving party.
Rye, 477 S.W.3d at 265. Mr. Grose has failed to do so here.
In his amended complaint, Mr. Grose alleged, inter alia, that Defendants had
committed legal malpractice in their representation of him concerning the wrongful death
action he filed regarding his mother’s death. As such, we must review the trial court’s
grant of summary judgment within the framework of a legal malpractice claim. To
establish a prima facie cause of action for legal malpractice, the plaintiff has the burden
of proving each of the following elements: (1) a duty owed by the lawyer; (2) breach of
that duty; (3) damages suffered by the plaintiff; (4) the attorney’s breach as the cause in
fact of those damages; and (5) the attorney’s breach as the proximate, or legal, cause of
the plaintiff’s damages. See Gibson v. Trant, 58 S.W.3d 103, 108 (Tenn. 2001).
A plaintiff can show breach of the duty owed by an attorney by demonstrating that
“the attorney’s conduct fell below that degree of care, skill, and diligence which is
commonly possessed and exercised by attorneys practicing in the same jurisdiction.” See
Sanjines v. Ortwein and Assocs., P.C., 984 S.W.2d 907, 910 (Tenn. 1998). The courts of
this state have repeatedly held that except in cases of “clear and palpable” negligence,
determining whether an attorney’s conduct complies with the applicable standard of care
is beyond the common knowledge of lay persons and requires expert proof. See Lazy
Seven Coal Sales, Inc. v. Stone & Hinds, P.C., 813 S.W.2d 400, 406 (Tenn. 1991);
Horton v. Hughes, 971 S.W.2d 957, 959 (Tenn. Ct. App. 1998); Hobson v. Frank, No.
M2019-01556-COA-R3-CV, 2020 WL 2989127, at *4 (Tenn. Ct. App. June 4, 2020);
Hasek v. Holt, No. 03A01-9706-CV-00210, 1998 WL 2505, at *2 (Tenn. Ct. App. Jan. 6,
1998).
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Mr. Grose’s legal malpractice claim fails because Defendants have negated the
second element of such a claim by filing David Kustoff’s declaration stating that
Defendants had complied with the applicable standard of care at all times during their
representation of Mr. Grose. David Kustoff specifically declared that he and Bernie
Kustoff had complied with the relevant standard of care “required of lawyers in
Tennessee” “[a]t all times during the representation of Plaintiffs up until we were
permitted to withdraw on April 22, 2016.”2 Ergo, David Kustoff’s affidavit effectively
negated an essential element of Mr. Grose’s legal malpractice claim, establishing by
expert proof that no breach of duty occurred. See, e.g., Lazy Seven Coal Sales, 813
S.W.2d at 406. As such, Defendants have presented proof at the summary judgment
stage sufficient to shift the burden of production to Mr. Grose. Rye, 477 S.W.3d at 265.
Following the filing of David Kustoff’s affidavit, Mr. Grose filed no attorney
affidavits or other expert proof in response to demonstrate that the standard of care had
been breached. Mr. Grose also did not assert the existence of “clear and palpable”
negligence, and we do not find any evidence that clear and palpable negligence occurred.
We determine that this case is factually similar to a previous legal malpractice
matter, Hobson v. Frank, 2020 WL 2989127, at *4, wherein this Court explained:
In support of their motion for summary judgment, Defendants filed
affidavits of Defendant Scott Tift, Defendant Joshua Frank, and attorney
Jonathan Bobbitt. All three affidavits asserted Defendants met or exceeded
the standard of care commonly exercised by attorneys in Tennessee. Each
presents specific facts that show Defendants exercised sound professional
judgment and reasoning. As a result, we hold that the affidavits submitted
by Defendants constitute expert proof that Defendants exercised the
required standard of care while representing Plaintiff.
Plaintiff’s response to Defendants’ motion for summary judgment
lacks expert proof. Plaintiff submitted three affidavits signed by her and an
affidavit of Gladys Blount, a witness from her prior case. Despite their
familiarity with the facts of this case, neither Ms. Blount nor Plaintiff is an
“expert” for the purposes of establishing the required standard of care.
“Ordinary laymen (even judges) [can]not say that [an] attorney’s conduct
fell below” the standard commonly exhibited and exercised by attorneys in
Tennessee. Hutter [v. Cohen], 55 S.W.3d [571,] 575 [(Tenn. Ct. App.
2
As our Supreme Court explained in Chapman v. Bearfield, 207 S.W.3d 736, 741 (Tenn. 2006): “A
single, statewide professional standard of care exists for attorneys practicing law in Tennessee.
Therefore, experts testifying in legal malpractice cases in Tennessee must be familiar with the
professional standard of care for the entire state.”
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2001)] (quoting Allen v. Wiseman, No. 01-A-01-9710-CV-00565, 1998 WL
391803, at *3 (Tenn. Ct. App. July 15, 1998)).
The facts of Hutter v. Cohen are similar to this case. In Hutter, the
plaintiff attended law school but did not graduate. Id. at 573. Although the
plaintiff did not practice law, he asserted he was familiar with the standard
of care required of attorneys in Tennessee and submitted his own affidavit
in response to a motion for summary judgment. Id. Despite any familiarity
Mr. Hutter may have had with the legal system, the court found he lacked
the appropriate expert proof to establish the defendants breached the
standard of care owed. Id. at 575. The holding in Hutter is consistent with
other cases where a layperson’s affidavit fails to establish expert proof.
Similarly, even though Plaintiff is an experienced pro se litigant, her
affidavits do not qualify as expert proof. Ms. Blount’s affidavit also fails to
qualify as expert proof in this matter.
As we have previously stated, this case is not appropriate for lay
testimony on whether Defendants breached the standard of care owed.
Defendants’ affidavits and the affidavit of Mr. Bobbitt sufficiently establish
expert proof that Defendants exercised the standard of care commonly
possessed and exercised by attorneys in Tennessee. As a result, Defendants
have negated an essential element of Plaintiff’s legal malpractice claim. In
response, Plaintiff has not presented expert proof to reestablish her claim.
Therefore, we affirm the trial court’s grant of summary judgment in favor
of Defendants.
(Footnote and other internal citations omitted). Similarly, here, inasmuch as Defendants
have negated an essential element of Mr. Grose’s claim by virtue of David Kustoff’s
affidavit, and Mr. Grose has failed to come forward with expert proof concerning the
standard of care in order to re-establish his claim, summary judgment was proper.
Mr. Grose argues that the trial court erred by relying on David Kustoff’s affidavit
to support its grant of summary judgment in favor of Defendants. However, as this Court
has previously elucidated in a legal malpractice action, “[a]s a licensed attorney
practicing in [Tennessee], [the defendant was] qualified as an expert to attest to the
standard of care required of attorneys in his position[.]” Glass v. Underwood, No.
E2004-02871-COA-R3-CV, 2005 WL 1669893, at *4 (Tenn. Ct. App. July 18, 2005)
(determining that the defendant attorney had negated the element of breach of duty solely
by filing the attorney’s own affidavit stating that he had complied with the standard of
care). See Elaster v. Massey, No. E2017-00020-COA-R3-CV, 2018 WL 1040112, at *5
(Tenn. Ct. App. Feb. 22, 2018) (determining that summary judgment was properly
granted based on affidavits from the defendant attorneys stating that they had not violated
the standard of care where the plaintiff produced no countervailing expert proof). As a
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practicing attorney, David Kustoff was qualified to attest to the standard of care in this
action. This issue is without merit.
In addition, Mr. Grose appears to argue that the trial court should have considered
a pleading filed in the wrongful death action by counsel for the insurance company
concerning overdue discovery responses as evidence of Defendants’ negligence.
However, this pleading does not constitute sufficient proof because it does not contain an
opinion from a legal expert that Defendants’ conduct fell below the applicable standard
of care in their representation of Mr. Grose. This argument is likewise unavailing.
In the instant action, Defendants negated an essential element of Mr. Grose’s legal
malpractice claim by presenting expert proof that no breach of duty occurred. In
response, Mr. Grose failed to present expert proof to establish his claim. We accordingly
affirm the trial court’s grant of summary judgment in favor of Defendants concerning Mr.
Grose’s legal malpractice claims on the basis of Mr. Grose’s failure to present expert
proof of breach of duty. We also determine Mr. Grose’s issue concerning whether his
legal malpractice claims were barred by the statute of limitations to be pretermitted as
moot.
Mr. Grose further argues that the trial court erred by disregarding his cross-motion
for summary judgment. We reiterate, however, that no such cross-motion appears in the
appellate record, and Mr. Grose has failed to provide a citation to the record
demonstrating such filing. We also note that Defendants pointed out that no such cross-
motion had been filed or served in a pleading they filed with the trial court on October
20, 2020, yet Mr. Grose still failed to file his motion. As such, we conclude that the trial
court could not “disregard” a pleading that was never properly filed. This issue is
without merit.
VI. Motion to Stay
Mr. Grose posits that the trial court erred by failing to address his motion seeking
to stay the proceedings in this matter pending resolution of the underlying wrongful death
action. The record demonstrates that Mr. Grose filed his motion seeking to stay the
proceedings on July 19, 2019. Although the trial court did not enter a specific order
relative to the motion to stay, the trial court acknowledged in its March 22, 2021 order
granting summary judgment that the motion to stay was before the court, and it
concluded its order by stating that “all Motions or Petitions not heretofore granted or
denied are denied.”
Moreover, with respect to such motions, our Supreme Court has explained that
questions of stay or continuance are matters entrusted to the sound
discretion of the trial judge. See Blake v. Plus Mark, Inc., 952 S.W.2d 413,
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415 (Tenn. 1997). An appellate court cannot interfere with the trial court’s
decision unless such decision constitutes an abuse of discretion and causes
prejudice to the party seeking the stay or continuance. Id.; see also Rachels
v. Steele, 633 S.W.2d 473, 475 (Tenn. App. 1981).
Sanjines v. Ortwein & Assoc., P.C., 984 S.W.2d at 909.
In his appellate brief, Mr. Grose does not contend that the trial court abused its
discretion in denying the motion to stay, and we do not conclude that the trial court’s
denial of the motion constituted an abuse of discretion. Rather, Mr. Grose appears to
complain that the trial court failed to state the reasons for its denial of the motion in its
written order.
A review of the transcript from the motion hearing, however, reveals that the trial
court heard argument from Mr. Grose and from Defendants’ counsel concerning the
motion to stay. When the court ruled from the bench and denied the motion, the court
explained that happenings in the wrongful death action would have no impact on whether
the instant action should proceed or whether summary judgment should be granted. We
agree.
The question addressed to the trial court was whether summary judgment should
be granted to Defendants because they had negated an essential element of Mr. Grose’s
malpractice claims by demonstrating that no breach of duty occurred. We reiterate that
Mr. Grose failed to respond with affirmative expert proof demonstrating a breach of duty.
As such, the issue would not be impacted by the outcome in the wrongful death litigation.
Accordingly, the trial court did not abuse its discretion in denying a stay.
VII. Claims of Fraud and Breach of Contract
In his appellate brief, Mr. Grose raised an issue concerning whether the trial court
erred by failing to specifically dispose of his claims alleging fraud and breach of contract.
We note, however, that following this Court’s order entered on April 7, 2022, remanding
this matter to the trial court for the limited purpose of specifically addressing those
claims, the trial court entered an amended order granting summary judgment in favor of
Defendants regarding those particular claims. As a result, Mr. Grose’s issue is now moot.
VIII. Pretrial Conference
Mr. Grose postulates that the trial court erred by failing to hold a pretrial
conference and order (1) the parties to engage in discovery and (2) Mr. Grose to procure
and produce an expert witness.3 In support of his argument, Mr. Grose cites Tennessee
3
The record reflects that the trial court did hold a status conference in this matter on November 4, 2019.
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Rule of Civil Procedure 16.01, which provides that “the court may in its discretion, or
upon motion of any party, conduct a conference with the attorneys for the parties and any
unrepresented parties, in person or by telephone, mail, or other suitable means”
(emphasis added). As our Supreme Court has explained, use of the word “may” in a
statute or rule “ordinarily connotes discretion or permission and will not be treated as a
word of command[.]” See Williams v. McMinn Cnty., 352 S.W.2d 430, 433 (Tenn.
1961).
Moreover, as the trial court pointed out during the hearing on the motion,
conducting discovery is the responsibility of the parties and does not require a court order
to initiate. Similarly, procuring an expert witness on matters requiring expert proof, for
which the plaintiffs bear the burden of proof, is also not something that the court is
required to direct. These are simply matters that the parties are expected to properly
handle as they prepare and litigate their case. Although we realize that Mr. Grose is self-
represented and may not have knowledge of the manner in which litigation is typically
conducted, we have previously noted that “[p]ro se litigants should not be permitted to
shift the burden of the litigation to the courts or to their adversaries.” Hessmer, 138
S.W.3d at 904. As such, it was not the trial court’s responsibility to direct Mr. Grose to
engage in discovery or to procure an expert witness to substantiate his claims. This
argument is unavailing.
IX. Administrator Ad Litem for Bernie Kustoff
Mr. Grose appears to argue that the trial court erred by declining to appoint David
Kustoff or one of the other individuals proposed by Plaintiffs as a substitute party for
Bernie Kustoff after his death. We note, however, that the Shelby County Chancery
Court entered a consent order on March 9, 2020, appointing attorney Stephen Vescovo as
administrator ad litem for the Estate of Bernie Kustoff. We further note that Mr. Grose
signed this consent order, indicating his acquiescence to Mr. Vescovo’s appointment.
We therefore find this argument unavailing.
X. Jim Strickland as a Party Defendant
Finally, Mr. Grose raises the issue of whether the trial court erred by declining to
allow Plaintiffs to add Jim Strickland as a party defendant. However, Mr. Grose
neglected to offer support of this issue in the argument section of his brief, failing to state
“the contentions of the appellant with respect to the issues presented, and the reasons
therefor, including the reasons why the contentions require appellate relief, with citations
to the authorities and appropriate references to the record . . . relied on[.]” Tenn. R. App.
P. 27(a)(7)(A). See Childress v. Union Realty Co., 97 S.W.3d 573, 578 (Tenn. Ct. App.
The court subsequently entered a written order on December 20, 2019, setting deadlines for discovery.
Mr. Grose signed this order on his own behalf.
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2002) (“[W]hen a party raises an issue in its brief, but fails to address it in the argument
section of the brief, we consider the issue to be waived.”). Accordingly, this issue is
deemed waived.
XI. Conclusion
For the foregoing reasons, we conclude that the trial court’s grant of summary
judgment in favor of Defendants should be affirmed. Costs on appeal are assessed to the
appellants, Anthony T. Grose; Corwin Grose; Jefferson Grose, III; Curtis Grose; Herbert
Grose; and Lonita Grose Dowdy. This case is remanded to the trial court for collection
of costs assessed below.
s/Thomas R. Frierson, II
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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