Hutter v. Cohen

SUSANO, J.,

dissenting.

I cannot concur in the majority’s affir-mance of the trial court’s grant of summary judgment in these two related legal malpractice actions. My unwillingness to join my colleagues is based upon my belief that the affidavits of defendants/attorneys Robert M. Cohen and H. Allen Bray are legally insufficient to require the plaintiff Jack Hutter to engage in what I refer to as litigation “on the papers.”

The law imposes a threshold obligation upon a defendant seeking summary judgment; such a defendant “must either affirmatively negate an essential element of the non-movant’s claim or conclusively establish an affirmative defense.” McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn.1998) (citing Byrd v. Hall, 847 S.W.2d 208, 215 n. 5 (Tenn.1993)). If the defendant fails to satisfy this threshold obligation, “the non-movant’s burden to produce either supporting affidavits or discovery material is not triggered and the motion for summary judgment fails.” McCarley, 960 S.W.2d at 588 (citing Byrd, 847 S.W.2d at 215) (emphasis added).

Our Supreme Court has indicated that non-specific defense affidavits do not trigger an obligation on the part of the plaintiff to present affidavits and discovery material demonstrating a genuine issue of material fact. Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn.1998). See also Harris v. Chern, 33 S.W.3d 741, 743 n. 1 (Tenn.2000).

In each of the cases now before us, the defendant in his affidavit¹ basically states the following: I am a'licensed attorney; I know the standards of professional practice applicable to attorneys practicing in Blount County; I have “handle[d]” cases pertaining to, and am familiar with the law applicable to, family law, landlord/tenant, and unlawful detainer cases; I was retained by the plaintiff to represent him with respect to a custody matter and a matter pertaining to possession of a house; I am familiar with the facts surrounding the aforementioned representation; and, finally, “I did not deviate from or fall below the legally accepted standard of practice for attorneys practicing law in Blount County, Tennessee, and the surrounding area, nor did I fail to exercise that degree of care, skill, and diligence which is commonly possessed and exercised by attorneys in practice in this jurisdiction, relative to my aforementioned representation of Jack Hutter.”

In reading the affidavits, I am struck by what both of them fail to do. In each case, the affidavit does not state any facts pertaining to the advice given or the services performed by the attorney. In other words, after reading the affidavits, one is left to ponder: What did the attorney do or not do in connection with this representation as it pertains to the shortcomings alleged by the plaintiff as the basis for his legal malpractice case? The affidavits are simply devoid of any information on this subject. The attorney in each case says that he knows what he did; but he doesn’t share this information with the reader.

I do not understand how a plaintiff can be expected to demonstrate a genuine issue of material fact if he or she does not know the material facts upon which the defendant relies to support his or her position that summary judgment is appropriate. As I understand the concept embodied in Tenn.R.Civ.P. 56, a trial is not necessary when the facts are clear and undisputed and those facts show conclusively that the defendant is entitled to a judgment; but this raises an obvious question: How do we know that the facts are clear and undisputed if a defendant’s supporting material fails to tell us what the material facts are?

If a defendant’s obligation under Rule 56 is to present facts showing that he or she is entitled to judgment in summary fashion — and I believe it clearly is — the affidavits before us simply do not satisfy this obligation. In my judgment, an affidavit that simply asserts that (a) I know the standard, (b) I know the facts (without revealing them), and (c) I did not deviate from or fall below the applicable standard, does not comport with my understanding of the letter² or spirit of Rule 56. If factual specificity is required in the material submitted by the non-movant,³ why is it not also required with respect to the material submitted by the movant, who, after all, has the primary burden to convince the court that he or she is entitled to summary judgment? If a generally-worded, conclu-sory affidavit, such as the ones now before us, has the effect of triggering the non-movant’s obligation to bring forth “specific facts,” see Rule 56.06, I believe that such a holding necessarily means that the non-movant, rather than the movant, has the burden of persuasion on summary judgment. Obviously, such a result is contrary to well-established summary judgment law. See, e.g., Byrd, 847 S.W.2d at 215.

I would hold that the defendants’ affidavits did not trigger an obligation on the part of the plaintiff to show a disputed material fact, and, consequently, that the defendants are not entitled to summary judgment. Accordingly, I respectfully dissent.

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AFFIDAVIT OF H. ALLEN BRAY

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I,H. ALLEN BRAY, after first being duly sworn according to law, do hereby make oath that the following is true and correct:

1. That my name is H. Allen Bray and I am an attorney engaged in the practice of law in Blount County, Tennessee. I received my law degree from the University of Tennessee at Knoxville, in 1974.

2. That I am duly licensed by the state of Tennessee to practice law and have been so licensed since 1974. I am familiar with the legally accepted standards for attorneys practicing law in Blount County, Tennessee, and in the surrounding area. This affidavit is made of my own personal knowledge.

3. That during the course and scope of my practice of law in Blount County, Tennessee, I have handle family law type cases in the Juvenile Court for Blount County, Tennessee, and I have handled landlord/tenant and unlawful detainer type cases in the General Sessions Court for Blount County, Tennessee. 1 am familiar with the applicable laws regarding those types of cases and the procedures followed by those courts.

4. That during the course and scope of my practice of law in Blount County, Tennessee, I was retained by Jack Hutter to represent him in the Juvenile Court for Blount County, Tennessee, relative to matters concerning the custody of his two minor children and the possession of a house and land he owned in Blount County, Tennessee. I was retained Cy Mr. Hotter on October28,1997. I moved to withdrew u counsel for Mr. Hutter. The order of withdrawal was entered on or about January IS, 1998.

5. That I am familiar with the facts of this case and with the facts surrounding the aforementioned representation. I am familiar with the counsel and advice that I gave Jack Hutter during the course of the aforementioned representation. I am familiar with the counsel and advice that I gave Jack Hutter relative to filing motions for sanctions. I am familiar with claimed issues regarding estoppel. I am familiar with my courtroom conduct and other proceedings connected with the aforementioned representation. I am familiar with the counsel and advice I gave Jack Hutter relative to the matters regarding the custody of his children and his unlawful detainer action against the mother of his children. I am familiar with all the pleadings that I prepared and filed on Jack Hutter’s behalf relative to the aforementioned representation. I am familiar with the fact that Jack Hutter retained other counsel who represented him.

6. That in my professional opinion, within a reasonable degree of professional certainty in my field as an attorney, and based upon my personal knowledge and my review of the facts involved in file above captioned caseyl did not deviate from or fall below the legally accepted standard of practice for attorneys practicing law in Blount County, Tennessee, and similar communities, nor did I fail to exercise that degree of care, skill, and diligence which is commonly possessed and exercised by attorneys in practice in this jurisdiction, relative to my aforementioned representation of Jack Hutte

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1 . The affidavits are essentially identical. The one signed by Mr. Bray is attached as an appendix to this opinion.

2 . For example, Rule 56.06 provides that “[s]upporting ... affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, ...." (Emphasis added).

3 . Rule 56.06 further provides, in pertinent part, as follows:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but his or her response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

(Emphasis added).