                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON


                                                      FILED
JOY DAWKINS ROY and SAM             )                  October 30, 1999
D. DAWKINS, et ux,                  )
                                    )                 Cecil Crowson, Jr.
                                    )                Appellate Court Clerk
            Plaintiffs/Appellees,   ) Madison Circuit No. 61907 T.D.
                                    )
VS.                                 ) Appeal No. 02A01-9809-CV-00247
                                    )
W. T. DIAMOND, JR.,                 )
                                    )
                                    )
            Defendant/Appellant.    )


          APPEAL FROM THE CIRCUIT COURT OF MADISON COUNTY
                       AT JACKSON, TENNESSEE
              THE HONORABLE J. STEVEN STAFFORD, JUDGE




LLOYD R. TATUM
TATUM & WEINMAN
Henderson, Tennessee
Attorney for Appellant



J. HOUSTON GORDON
Covington, Tennessee
Attorney for Appellees




AFFIRMED




                                                      ALAN E. HIGHERS, J.




CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.
        In this legal malpractice case, W.T. Diamond Jr. appeals from a jury verdict entered

against him in the Circuit Court of Madison County awarding plaintiffs Joy Dawkins Roy

and Sam D. Dawkins $68,800 in compensatory damages and $25,000 in punitive

damages.



                                   Facts and Procedural History

        This case involves claims against W.T. Diamond Jr. (“Diamond” or “Appellant”)

arising from Diamond’s role as executor and attorney for the estate of Jennie Ida Buck

(“Buck” or “Deceased”). The proceedings which are pertinent to this appeal took place

over several years in both the probate section of the General Sessions Court of Madison

County and the Madison County Circuit Court, as well as a disciplinary proceeding against

Diamond conducted by the Board of Professional Responsibility.1



                                    I. Probate Court Proceedings

        The long and confusing history of this case began with the death of Jennie Ida Buck

on March 21, 1992. Buck left a holographic will in which, among other things, she

appointed Diamond as executor. On April 10, 1992, Diamond admitted Buck’s will to

probate in common form and was issued letters testamentary. Following a three year

period of alleged inaction and misuse of estate funds, Sam Dawkins, a named beneficiary,

filed a petition in probate court seeking to remove Diamond as executor. The petition

alleged, inter alia, that Diamond had notified none of the estate’s heirs of the probate

proceedings, filed no inventory of the estate, failed to maintain the residence, and

misappropriated the estate’s funds. In May 1995, administrators of the estate of Earl

Dawkins, also a named beneficiary, filed a motion to compel inventory and accounting

against Diamond. An accounting revealed that Diamond had made approximately $60,100

in disbursements to his law firm from the estate of the deceased without approval of the

probate court. The probate court ordered Diamond to reimburse the estate. After several

failed attempts at reimbursement, Diamond eventually tendered a cashier’s check in an


        1
           As a result of his actions in handling the estate of Jennie Ida Buck, Mr. Diamond was the subject
of a Petition for Discipline brought by the Board of Professional Responsibility. A Hearing Panel made various
findings of fact, and recommended that Mr. Diamond be disbarred. The only issue raised by the disciplinary
proc eed ing re lates to its u se as evide nce in Dia mo nd’s ma lprac tice s uit.

                                                      2
amount sufficient to repay the estate for money he had removed.



       In July 1995, the petition to remove Diamond as executor was granted, and Sam

Dawkins and Joy Roy             (“Co-administrators” or “Plaintiffs”) were appointed as co-

administrators of Buck’s estate.2 Diamond subsequently filed a petition, to which the new

co-administrators excepted, seeking fees and expenses for his services rendered. In

March and April 1996, hearings were held in the probate court, at which time the co-

administrators sought payment of $13,317.50 in attorney fees and $17,566.50 in

administrators fees. They also asserted that Diamond should reimburse the estate for

fees and expenses incurred by the co-administrators in trying to get Diamond to account

for his receipts and disbursements.



       On August 21, 1996, the Probate Court issued a memorandum opinion, which

indicated that the fees Diamond claimed were excessive and the time upon which he

based his fees was wasteful. As to the fees claimed by both parties, the probate court

stated, “the fees to which the executor (i.e., Diamond) would have been allowed by the

court for services rendered to the estate would be approximately equal to that incurred by

the personal representatives and their attorney, so that there is no recovery by either party

on that issue.” The opinion further stated, “[t]he court makes no finding as to damages

incurred by the estate due to the alleged malfeasance of the Executor and the resulting

waste and deterioration cost thereby, since it is the subject of a separate action pending

in the Circuit Court of Madison County, Tennessee.” The probate court entered an order

of final judgment on February 27, 1997.



                                    II. Circuit Court Proceedings

       In April of 1995, Sam Dawkins and Elizabeth Dawkins commenced a pro se action

against Diamond in Madison County Circuit Court for damages resulting from his failure

to perform his duties as attorney and executor for Buck’s estate. Subsequently, on

October 18, 1995, Joy Roy and Sam Dawkins commenced a legal malpractice action


       2
           Roy was the niece of the deceased.

                                                 3
against Diamond for “malfeasance” in his capacity as attorney and executor for Buck’s

estate. Diamond sought dismissal of the second case because the previous pro se suit

against him was still pending.



        On August 14, 1997, an order was entered non-suiting the first circuit court action.

On that same date, the court denied Diamond’s motion to dismiss the second action. The

second action went to trial and a jury awarded the plaintiffs $68,800 in compensatory

damages and $25,000 in punitive damages. Diamond filed a motion for a new trial

claiming, inter alia, that the court erred in failing to dismiss all claims for damages for

“additional fees and expense charged to the estate of Jennie Ida Buck” because such

claims were previously litigated before the probate court. Alternatively, Diamond asked

that the Circuit Court reduce the award to $32,800.3 Diamond’s motions were denied and

he appealed to this court presenting the following issues for determination:

                 1) Whether the trial court erred by refusing to dismiss the
                 plaintiffs’ damage claim for additional fees and expense
                 charged to the estate of Jennie Ida Black.

                 2) Whether the trial court erred in denying Diamond’s motion
                 to dismiss for prior suit pending.

                 3) Whether the trial court erred in permitting plaintiffs’ counsel
                 to introduce into evidence the findings of fact and judgment
                 from a professional responsibility disciplinary proceeding.

                 4) Whether the punitive damages award was supported by the
                 evidence.


                                            Law and Analysis

                   I. Damage claim for administration fees and attorney fees

        The jury awarded the plaintiffs $68,800 in compensatory damages, which were

broken down into two components. Thirty-two thousand dollars ($32,000) represented

damages for the “deterioration and waste of the assets of Jennie Ida Buck” caused by the

Defendant, and $36,000 was awarded for damages “resulting from additional fees and

expense charged to the Estate of Jennie Ida Buck.”                   It is the latter amount of $36,000

which the Appellant challenges. Appellant claims that the trial court erred in allowing the


        3
         This figure represents the amount of the total judgment, $93,800, minus the punitive damages aw ard
of $25,000 and the award of $36,000 for attorney’s fees and administrator’s fees incurred by the p laintiff s in
the execution of the estate.

                                                       4
jury to consider the plaintiffs’ claim for additional fees and expenses. Appellant argues that

this issue was fully litigated in the probate court and was, therefore, barred by either res

judicata or collateral estoppel.



       The Tennessee Supreme Court described res judicata and its related counterpart,

collateral estoppel, as follows:

              The doctrine of res judicata bars a second suit between the
              same parties or their privies on the same cause of action with
              respect to all issues which were or could have been litigated in
              the former suit. Collateral estoppel operates to bar a second
              suit between the same parties and their privies on a different
              cause of action only as to issues which were actually litigated
              and determined in the former suit.

Goeke v. Woods, 777 S.W.2d 347, 349 (Tenn.1989) (quoting Massengill v. Scott, 738
S.W.2d 629, 631 (Tenn.1987)).



       Res judicata and collateral estoppel apply only if the prior judgment concludes the

rights of the parties on the merits. A.L. Kornman Co. v. Metropolitan Gov't of Nashville &

Davidson County, 391 S.W.2d 633, 636 (Tenn. 1965). A party defending on the basis of

res judicata or collateral estoppel must demonstrate that: 1) the judgment in the prior case

was final and concluded the rights of the party against whom the defense is asserted, and

2) both cases involve the same parties, the same cause of action, or identical issues.

Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446 (Tenn. 1995) (citing Scales v.

Scales, 564 S.W.2d 667, 670 (Tenn. App. 1977). In this regard, the only issue raised

before this court is whether the decision of the probate court regarding “fees and expense”

was identical to the claim in the circuit court for “additional fees and expense.” Although

the use of the words “fees and expense” may imply that the answer is yes, this question

does not turn on the choice of language.



       The Tennessee Supreme Court, in King v. Brooks, stated that "[u]nder the doctrine

of collateral estoppel, when an issue has been actually and necessarily determined in a

former action between the parties, that determination is conclusive upon them in

subsequent litigation." 562 S.W.2d 422, 424 (Tenn. 1978) (citing Shelley v. Gipson, 400

S.W.2d 709 (Tenn. 1966); See also A.L. Kornman Co. v. Metropolitan Government of

                                              5
Nashville and Davidson County, 391 S.W.2d 633 (Tenn. 1965). In the present case, the

probate court entertained two issues that are relevant to this appeal. First, Diamond had

filed a petition seeking fees and expenses he incurred as the executor and attorney for the

estate of Jennie Ida Buck.      Also, the new co-administrators filed a motion seeking

reimbursement of $21,522 in fees and expenses from Diamond, as well as additional fees

that would be incurred as a result of Diamond’s alleged malfeasance. On the issue of fees

and expenses due both parties, the probate court stated:

                 1. The Petition for Fees and Expenses filed by W.T.
              Diamond, Jr., and the Motion for Reimbursement of Fees and
              Expenses filed by the current Co-Administrators are each
              hereby granted in part and denied in part. The Court holds, in
              accordance with its Memorandum Opinion, that the amount of
              fees and expenses to which Mr. Diamond is entitled and the
              amount of fees and expenses as to which the current Co-
              Administrators are entitled to reimbursement are the same and
              that said sums should be set off, one against the other, with
              neither party entitled to additional recovery on their respective
              petition and/or motion.

                2.The Exceptions to Accounting filed by the current Co-
              Administrators are disposed of as follows:(a)to the extent that
              said Exceptions to Accounting constitute claims for damages
              that are the subject of a separate action pending in the Circuit
              Court of Madison County, Tennessee, this Court declines
              herein to make a ruling on the same, finding that the Circuit
              Court is the appropriate forum for those claims to be
              determined;(b)in all other respects, the Exceptions to
              Accounting are denied and dismissed.

       (emphasis added).



       The appellees characterize the $36,000 as damages that resulted from Diamond’s

malfeasance in his role as executor and attorney. Through this characterization, appellees

argue that the $36,000 judgment is not barred because the probate court specifically made

no finding as to damages. This is undoubtedly a true statement of what the probate court

said. It is also true that the $36,000 was meant to cover damages caused by Diamond’s

malfeasance. However, those “damages” come in the form of fees and expenses incurred

by the co-administrators and their attorney. In fact, the pertinent jury interrogatory uses the

words “fees and expenses.” There can be little doubt that the $36,000 was awarded to

compensate the plaintiffs for fees and expenses. The question is whether the probate

decision foreclosed the ability of the plaintiffs to recover any fees and expenses, or rather,



                                              6
did the probate decision only foreclose their ability to recover a portion of their fees and

expenses. If the answer is the latter, then no preclusion doctrine will apply.



       The difficulty of this issue lies in the less than clear language used by the probate

court. As such, we are left to interpret the Memorandum Opinion and Final Order of the

probate court in order to decide this issue. We regard the probate court decision as

fashioning a remedy which basically maintained the status quo. In other words, we read

the decision as recognizing that certain things have to be done in the execution of an

estate, and the estate should have to pay for those services. In performing their duties,

the personal representatives and the attorney incur expenses and earn fees from the

estate. Had Diamond done his duty, he would have been entitled to reasonable fees and

expenses. Since he did not perform the duties, the new co-administrators and their

attorney had to perform the duties required in executing the estate. Since those duties

would have to have been performed anyway, the estate is no worse off for having to pay.

This can be referred to as the normal expenses involved in closing an estate.



       At this point, we wish to emphasize certain facts of this case. Diamond was never

paid any money by the estate of Jennie Ida Buck.4 The co-administrators asked the

probate court to make Diamond pay them for their services. If this had been allowed,

Diamond would have been forced to pay the normal expenses incurred in closing the

estate of Jennie Ida Buck, while the estate would never have paid anything to anyone.

Therefore, as we perceive the record, the only issue dealt with by the probate court was

the question of who pays the normal expenses involved in closing the estate. The answer

to that question has to be that the estate pays.



       Nancy Choate, the attorney for the estate after Diamond, alleged that she incurred

fees and expenses of $7,522. The co-administrators, Sam Dawkins and Joy Roy, alleged

fees and expenses totaling $14,000. We regard this total amount of $21,522 as the

amount which the probate court set off against the fees and expenses to which Diamond


       4
           Diamond repaid the $60,100 he took out of estate funds.

                                                    7
would have been entitled had he performed his duties. 5 We point out that no “damages”

are involved because, presumably, the $21,522 in fees and expenses would have been

incurred anyway. 6



        It appears that the probate court intended its decision to go no further than this

point. After having disposed of the issues relating to the fees and expenses incurred in the

normal course of executing the estate, the probate court left the issue of “damages” to the

circuit court7 (“to the extent that said exceptions to accounting constitute claims for

damages . . . this court declines herein to make a ruling on the same, finding that the

Circuit Court is the appropriate forum for those claims to be determined”). As the circuit

court correctly determined, the only issue for the jury was whether the plaintiffs sustained

any damages in excess of the $14,000 for Sam Dawkins and Joy Roy, and $7,522 for Ms.

Choate.



        Having determined that the issue of damages was correctly submitted to the jury,

we turn to the question of whether the verdict was supported by the evidence. Forrester

v. Stockstill, 869 S.W.2d 328, 329 (Tenn. 1994)(when reviewing a judgment based on a

jury verdict, appellate courts are limited to determining whether there is material evidence

to support the verdict); See also Electric Power Bd. v. St. Joseph Valley Structural Steel

Corp., 691 S.W.2d 522, 526 (Tenn.1985); Crabtree Masonry Co. v. C & R Constr., Inc.,

575 S.W.2d 4, 5 (Tenn.1978). Ms. Choate testified that she was paid over $20,000 in fees.

Of this amount, she testified that approximately $13,500 derived from issues relating to

Diamond’s malfeasance. According to Ms. Choate, had Diamond performed his duties

as executor and attorney, the estate would not have incurred the additional amount of

expenses and fees. Ms. Choate also testified that the co-administrators were paid some

$20,000 more than they would have been paid absent Diamond’s actions in handling the



        5
          The circuit court adopted this same position and granted a motion for summary judgment finding that
the issue of the $21 ,522 wa s barred by res judic ata.

        6
        This is based on the belief that someone had to do the work, and whether it was Diamond or
someone else, they would have been entitled to recover an amount close to the $21,522.

        7
        By using the word “damages,” we indicate monies expended over and above that which would have
been expended in the normal course of executing the estate.

                                                     8
estate. The testimony of Sam Dawkins indicated that he and Joy Roy incurred

approximately $36,000 in fees and expenses over and above the $14,000 they requested

in the probate court. Taking the strongest legitimate view of the evidence in favor of the

verdict, assuming the truth of all that tends to support it, allowing all reasonable inferences

to sustain the verdict, and discarding all to the contrary, Crabtree, 575 S.W.2d at 5, it is

clear to us that the jury verdict in this case was supported by material evidence. We find

no error in the jury verdict as it relates to the $36,000.



                                            II. Prior suit pending

        The appellant also argues that the Circuit Court erred in denying his motion to

dismiss on the basis of prior suit pending. This argument is based on the fact that the pro

se action was still pending when the second action was filed. In essence, both claims were

pending at the same time. Appellees respond by pointing out that the original action was

non-suited, thereby curing any technical problems. 8



        Initially, Appellant’s argument appears persuasive. The Tennessee Supreme Court

has addressed the issue of prior suit pending and seems to fashion the doctrine in such

a way so as to encompass the present case. See Cockburn v. Howard Johnson, Inc., 385

S.W.2d 101 (Tenn. 1964) (stating that “[i]n Tennessee, a suit is subject to a plea in

abatement 9 where there is pending another suit on the same subject.”). The court went

on to enumerate the factors that must exist in order for a plea in abatement to lie:

                 The essentials of such a plea are that the two suits must
                 involve the identical subject matter and be between the same
                 parties and the former suit must be pending in a court in this
                 state having jurisdiction of the subject matter and the parties.
                 A plea, whether it be in abatement or in bar, must contain
                 these elements.

Id. at 102 (citing Higgins & Crownover, Tennessee Procedure in Law Cases, Sec. 518(6)).




        8
          Appellees assert in their brief that the Appellant, acting pro se, suggested the two actions be
consolidated in order to solve any procedural problems. Allegedly, an order was drawn up to that effect, but
Diamond never sig ned. Appellees argue that this, notwithstanding Diamond’s failure to sign the order,
operated as con sent on the part of Diam ond to the non-su it of the first actio n. Although we find in favor of the
appellee s on this iss ue, we d o not do s o base d on this a rgum ent.

        9
        The T ennes see R ules of C ivil Procedu re replac ed "pleas in abatem ent" with "m otions for dismis sal."
See T.R.C iv.P. 7.03, 41 .02.

                                                         9
       In the present case, the subject matter of both circuit court cases was identical.

Both cases were, in effect, malpractice cases against Diamond arising out of his

performance as administrator and attorney for the estate of Jennie Ida Buck. Also, both

actions were in the same court, with that court having jurisdiction over the parties and the

subject matter. One seeming problem is the fact that the plaintiffs in the two cases were

different. In the first case, Sam and Elizabeth Dawkins were the plaintiffs, while Sam

Dawkins and Joy Roy were the plaintiffs in the second case. Even though the plaintiffs are

not identical in both cases, we consider them sufficiently similar so as to make no practical

difference. See Cockburn, 385 S.W.2d at 102 (“The defendants in these two cases are

not identical but are in effect the same”).



       If we were to stop here, it might appear that Appellant’s argument has validity.

However, we are persuaded that taking the non-suit in the first circuit court action avoided

the bar imposed by the doctrine of prior suit pending.



       At common law, a plaintiff could not avoid the effect of a plea in abatement by

discontinuing the prior action. Walker v. Vandiver, 181 S.W. 310 (Tenn. 1915) (citing 1

CORPUS JURIS , p. 94, § 132)(“The rule at common law was to sustain the plea if it was true

at the time it was filed”).   However, the holding of early Tennessee cases is that

discontinuance of the prior suit is sufficient to avoid any problems, regardless of whether

the discontinuance came before or after the filing of the plea. Id.; See also Harris v. Penn.

Nat. Hardware Mutual, 7 Tenn. App. 330 (Tenn. App. 1928); Stoll v. United States Fid. &

Guar. co., 10 Tenn. App. 539 (Tenn. App. 1929). The Tennessee Supreme Court, in

rejecting the common law rule, stated:

              it is manifest from the authorities above referred to that it has
              never been recognized by this court as a rule of law binding
              upon the courts of this state, and it is a rule of law opposed to
              the policy of our legislation in respect of remedial actions, and
              opposed to the general spirit of our legislation which seeks to
              have all controversies determined upon their merits rather than
              upon the technicalities of the formal procedure of the common
              law.

Walker, 181 S.W. at 311.




                                              10
       In the present case, the first circuit court action was discontinued by the order

entered on August 15, 1997. The dismissal of the first action prior to the trial of the second

action was sufficient to avoid any technical problems relating to the doctrine of prior suit

pending. As such, we find that the trial court did not err in denying Appellant’s motion to

dismiss.



                  III. Disciplinary Proceeding as Evidence of Malpractice

       The Appellant asserts that the trial court erred in allowing the plaintiffs’ attorney to

introduce into evidence the findings of fact and judgment from a disciplinary proceeding.

This error, according to the appellant, unfairly prejudiced him because it was “tantamount

to a directed verdict in favor of the appellees . . . ”



       The first question before this court is whether the findings of the disciplinary

proceeding were relevant in Appellant’s malpractice trial. All relevant evidence is generally

admissible. Tenn.R. Evid. 402. Rule 401 of the Tennessee Rules of Evidence provides

the standard for determining whether evidence is relevant. Relevant evidence is “evidence

having any tendency to make the existence of any fact that is of consequence . . . more

probable or less probable than it would be without the evidence.”               Tenn.R.Evid.

401(emphasis added). As the Advisory comments make clear, this is not a high standard.

See Tenn.R.Evid. 401, Advisory Commission Comments (“The theoretical test for

admissibility is a lenient one, as it should be, . . . ”).



       There is no doubt that the Code of Professional Responsibility (“the Code”) does not

set the standard for determining the civil liability of an attorney. See Lazy Seven Coal

Sales, Inc. v. Stone & Hinds, P.C., 813 S.W.2d 400 (Tenn. 1991). However, that fact does

not preclude the possibility that violation of the Code is relevant evidence in a subsequent

civil case. Id. at 405 (“the standards stated in the Code are not irrelevant in determining

the standard of care in certain actions for malpractice”). The Tennessee Supreme Court

recognized that the Code may provide guidance in defining a lawyer’s obligation to a client.

Moreover, in some instances, conduct which violates the Code may also be a breach of



                                                11
the attorney’s standard of care. While violation of the Code, standing alone, will not suffice

to prove civil liability, it seems clear that such a violation may be relevant evidence of a

breach of the standard of care.



       Appellant’s primary argument is that the admission of the evidence was unfairly

prejudicial and should, therefore, have been excluded.             See Tenn.R.Evid. 403.

Undoubtedly, the admission of the judgment and findings of fact from the disciplinary

proceeding was detrimental to Appellant’s defense. See Woodson v. Porter Brown

Limestone Co., Inc., 916 S.W.2d 896, 907 (Tenn. 1996) (noting that extremely persuasive

evidence tends to be prejudicial). However, Rule 403, by its language, places a heavy

burden on the party seeking to exclude the evidence. Id.; See also Tenn.R.Evid. 403.

The rule only excludes evidence if the probative value is substantially outweighed by the

danger of unfair prejudice.



       The admissibility of evidence is a matter which rests within the sound discretion of

the trial court. State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993); State v. Williams, 657

S.W.2d 405, 411-12 (Tenn. 1983); Murray v. State, 377 S.W.2d 918, 920 (Tenn. 1964);

Wright v. Quillen, 909 S.W.2d 804, 809 (Tenn. App. 1995); State v. Rhoden, 739 S.W.2d

6, 13 (Tenn. Crim. App. 1987). This Court will not interfere with the trial court's exercise

of its discretion absent clear abuse. Williams, 657 S.W.2d at 411-12; Murray v. State, 377

S.W.2d at 920; Rhoden, 739 S.W.2d at 13. The evidence was clearly relevant to issues

in dispute in the case. Also, unlike the Lazy Seven case, there was expert testimony in the

present case that Diamond violated the applicable standard of care. In Lazy Seven, the

expert testimony only related to a violation of the Code, not the standard of care. Lazy

Seven, 813 S.W.2d at 407. Therefore, the outcome of that case does not bear on the case

at bar. We find no basis for concluding that the trial judge abused his discretion in

admitting the evidence.



                                   IV. Punitive Damages

       Punitive damages are intended to punish the defendant for wrongful conduct and



                                             12
to deter others from similar conduct in the future. Clanton v. Cain-Sloan Co., 677 S.W.2d

441, 445 (Tenn. 1984) (citing Liberty Mutual Ins. Co. v. Stevenson, 368 S.W.2d 760 (Tenn.

1963)). These damages refer to the nature of the defendant's conduct rather than to the

injury plaintiff suffered, Breault v. Friedli, 610 S.W.2d 134 (Tenn. App. 1980), although

actual damages must be found as a predicate for the recovery of punitive damages. Allen

v. Melton, 99 S.W.2d 219, 225 (Tenn. 1936).        In awarding punitive damages, the law

blends the interests of society and the aggrieved individual and awards such damages as

will operate to deter others from like conduct. Pridemark Custom Plating, Inc. v. Upjohn

Co., Inc., 702 S.W.2d 566, 573 (Tenn. App. 1985) (citing Knoxville Traction Co. v. Lane,

53 S.W. 557 (Tenn. 1899)).



       In Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn.1992), our supreme court

determined that punitive damages are available only where a defendant has acted

intentionally, fraudulently, maliciously or recklessly. The court explained:

              A person acts intentionally when it is the person's conscious objective
              or desire to engage in the conduct or cause the result. A person acts
              fraudulently when (1) the person intentionally misrepresents an
              existing, material fact or produces a false impression, in order to
              mislead another or to obtain an undue advantage, and (2) another is
              injured because of reasonable reliance upon that representation. A
              person acts maliciously when the person is motivated by ill will,
              hatred, or personal spite. A person acts recklessly when the person
              is aware of, but consciously disregards, a substantial and unjustifiable
              risk of such a nature that its disregard constitutes a gross deviation
              from the standard of care that an ordinary person would exercise
              under all the circumstances.

Hodges, 833 S.W.2d. at 901.



       In Metcalfe v. Waters, the Tennessee Supreme Court recognized that punitive

damages may be awarded in legal malpractice cases provided the standard established

in Hodges is proven by clear and convincing evidence. 970 S.W.2d 448, 451-452 (Tenn.

1998). In reinstating the jury verdict awarding punitive damages, the Metcalfe court

concluded that the attorney’s “repeated transgressions and callous disregard for the rights

of his clients” constituted “overwhelming evidence from which the jury could find, at a

minimum, reckless conduct, that is, conduct constituting a gross deviation from the

applicable standard of care.” Id. at 452.


                                            13
      In the present case, there was abundant evidence presented regarding Diamond’s

failure to perform his duties as both executor and attorney. Diamond removed money from

the estate without court approval. According to the expert testimony, Diamond was

unjustifiably slow, if not inactive, in handling the affairs of the estate. The evidence

presented could reasonably support a finding that his conduct constituted a “gross

deviation from the applicable standard of care.” See Metcalfe, 970 S.W.2d at 452. As

such, we find no error in the award of punitive damages.




                                      Conclusion

      The judgment entered by the trial court is hereby affirmed in all respects. Costs

of this appeal are taxed to the Appellant, for which execution may issue if necessary.




                                                      HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




FARMER, J.




                                           14
