                      IN THE COURT OF APPEALS OF TENNESSEE
                                   AT JACKSON

                                                                      FILED
MELVIN GLOVER,                       )
                                                                        August 10, 1999
                                     )
       Plaintiff/Appellant,          )      Shelby Circuit No. 93004 T.D.
                                                                        Cecil Crowson, Jr.
                                     )                                 Appellate Court Clerk
v.                                   )
                                     )      Appeal No. 02A01-9808-CV-00228
LOCKARD, BINGHAM & KAPLAN            )
and TODD KAPLAN,                     )
                                     )
       Defendants/Appellees,         )


               APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                           AT MEMPHIS, TENNESSEE


                   THE HONORABLE KAREN R. WILLIAMS, JUDGE


For the Plaintiff/Appellant:         For the Defendants/Appellees:

Melvin Glover, Pro Se                Richard Glassman
Memphis, Tennessee                   Richard Sorin
                                     Memphis, Tennessee



                                     AFFIRMED


                                     HOLLY KIRBY LILLARD, J.



CONCURS:

ALAN E. HIGHERS, J.

DAVID R. FARMER, J.
                                             OPINION

       This is a legal malpractice case. The plaintiff prospective client argues that the defendant

lawyer committed malpractice by declining representation and failing to file a complaint on

plaintiff’s behalf six weeks prior to the expiration of the statute of limitations. The trial court

granted summary judgment in favor of the defendant lawyer. The plaintiff appeals. We affirm.

       On February 19, 1996, Plaintiff/Appellant Melvin Glover (“Glover”) sustained personal

injuries from an alleged shooting incident by a police officer in Memphis, Tennessee. At the request

of Glover’s sister, attorneys, Defendant/Appellee Todd Kaplan (“Kaplan”) and Jim Lockard, with

the firm Defendant/Appellee Lockard, Bingham & Kaplan (“the Firm”), met with Glover at the

Regional Medical Center to discuss the possibility of Kaplan representing Glover. Kaplan allegedly

informed Glover of the requirements of bringing a governmental tort suit. Kaplan also told Glover

that he would contact a civil rights attorney, Richard Fields (“Fields”), regarding possible

representation of Glover in a civil rights lawsuit. Kaplan said that Fields told Kaplan that “no

favorable law existed for the benefit of the Plaintiff.”

       On December 30, 1996, Kaplan notified Glover, by letter, that neither Kaplan nor the Firm

would represent him:

               Also, I have told you we are not able to represent you in any potential lawsuit
       against the police officer or the police department. You have one year from the date
       of your injury to file a personal injury action or be forever barred from doing so.
               I have also told you we are not qualified to file any type of civil rights claim
       arising out of this incident. Should you decide to do so, I suggest you contact a civil
       rights attorney immediately. It is my understanding any such action must be filed
       within one year of your injury but, as I have said, we are not civil rights lawyers and
       give no opinions upon which you should rely.

       On February 19, 1998, Glover filed a complaint alleging that Kaplan, on behalf of the Firm,

agreed to represent Glover regarding pending criminal charges, an application for victim

compensation, and any potential civil actions, including any civil rights claims against the City of

Memphis and the police officer. Glover alleged that Kaplan committed negligence by informing him

that he would not represent him, six weeks prior to the expiration of the applicable statute of

limitation.
       On March 16, 1998, the defendants filed a motion to dismiss for failure to state a claim. On

April 16, 1998, the defendants filed a motion for summary judgment, a statement of undisputed facts

and an affidavit by Kaplan.1 In his affidavit, Kaplan stated:

       1. I am a duly licensed attorney in the State of Tennessee.

       2. I, and a personal injury lawyer that I work with, Jim Lockard, met with Melvin
       Glover at the Regional Medical Center in Memphis to consult with Mr. Glover about
       the possibility of my representing him for personal injuries he allegedly sustained in
       a shooting that occurred on or about February 19, 1996.

       3. I informed Melvin Glover of the requirements in bringing a governmental tort
       suit.

       4. I informed Melvin Glover that I would contact a leading civil rights attorney in
       Memphis, Richard Fields, about the possibility of representing Mr. Glover.

       5. Mr. Fields advised me that no favorable law existed for the benefit of the Plaintiff.

       6. I sent a letter to Melvin Glover dated December 30, 1996, and attached to this
       Affidavit as Exhibit “A”, verifying that we were not going to be able to assist Mr.
       Glover.

       7. At no time did I or Mr. Lockard agree to represent Mr. Glover in any civil actions
       against anyone.

       8. The month and a half which passed between the time he received our final letter
       of December 30, 1996 and the expiration of his applicable statute of limitations was
       more than enough time for the Plaintiff to hire another lawyer to protect his interests.

       9. I am familiar with the standard of care for practicing lawyers in this locale and
       community, and my conduct in the present case in no way breached that standard of
       care.

       In response to the defendants’ summary judgment motion, Glover filed a memorandum in

which he admitted that he did not recall his initial conversation with Kaplan due to his “[m]edicated

state.” Glover asserted that he met with Kaplan several times after the initial meeting and said that

Kaplan did not notify him in a timely manner that Kaplan would not represent him. Glover’s

response in the record on appeal did not include an affidavit from Glover or anyone else disputing

Kaplan’s assertion that neither he nor the Firm at any point agreed to represent Glover.

       The trial court granted the defendant’s motion for summary judgment. From this order,

Glover now appeals.

       A motion for summary judgment should be granted when the movant demonstrates that there

are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter


       1
        Glover filed a statement of the evidence which was excluded by the trial court as part of
the record on appeal to this Court.

                                                  2
of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of

demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d 618, 622

(Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view

of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that

party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993),

our Supreme Court stated:

               Once it is shown by the moving party that there is no genuine issue
               of material fact, the nonmoving party must then demonstrate, by
               affidavits or discovery materials, that there is a genuine, material fact
               dispute to warrant a trial. In this regard, Rule 56.05 [now Rule 56.06]
               provides that the nonmoving party cannot simply rely upon his
               pleadings but must set forth specific facts showing that there is a
               genuine issue of material fact for trial.

Id. at 211 (citations omitted) (emphasis in original).

        Summary judgment is only appropriate when the facts and the legal conclusions drawn from

the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.

1995). Since only questions of law are involved, there is no presumption of correctness regarding

a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our review of the

trial court’s grant of summary judgment is de novo on the record before this Court. Warren v. Estate

of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

       On appeal, Glover argues that the trial court erred in granting defendants’ motion for

summary judgment. Glover contends that Kaplan had agreed to represent him with regard to all

claims resulting from the shooting incident, and that Kaplan committed negligence in withdrawing

from the case, giving Glover insufficient time to obtain another lawyer prior to the expiration of the

statute of limitations. Glover attached to his appellate brief a portion of an apparent affidavit by

Glover, in which Glover asserts that Kaplan did not tell him the requirements for a governmental tort

action and did not tell him he had to contact another attorney, and acknowledges that Glover was

“heavily sedated” when he met with Kaplan at the hospital.

       The defendants maintain that the record on appeal does not support Glover’s assertion in his

appellate brief that Kaplan agreed to represent him and “withdrew.” The defendants note that the

purported affidavit by Glover is not part of the record on appeal. They contend that the facts asserted

by Glover do not state a claim for legal malpractice, and note that Glover had six weeks after




                                                  3
receiving Kaplan’s letter in which to find another attorney or file a pro se complaint in the

underlying case.

       In this case, it is undisputed that Kaplan sent Glover a letter dated December 30, 1996, in

which he told Glover he would not represent him and informed Glover that the statute of limitations

would run in six weeks. Kaplan asserts in his affidavit that neither he nor the Firm at any time

agreed to represent Glover. The record on appeal contains no affidavit from Glover; consequently,

the purported Glover affidavit attached to Glover’s appellate brief will not be considered on appeal.

See Allstate Ins. Co. v. Young, 639 S.W.2d 916, 918-19 (Tenn. 1982). Glover’s response to the

defendants’ motion for summary judgment does not dispute Kaplan’s assertion that he never agreed

to represent Glover. Indeed, Glover acknowledges he was unable to recall his initial conversation

with Kaplan because of his “[m]edicated state.” Therefore, the undisputed facts in the record are that

Kaplan at no point agreed to represent Glover, that Kaplan informed Glover that he would not

represent him six weeks before the statute of limitations ran, and that Kaplan told Glover that the

statute of limitations would run six weeks from the date of Kaplan’s letter.

       Based on these undisputed facts, Glover fails to state a claim for legal malpractice. The trial

court’s grant of summary judgment in favor of the defendants must be affirmed.

       The decision of the trial court is affirmed. Costs are taxed against Appellant, for which

execution may issue if necessary.




                                       HOLLY KIRBY LILLARD, J.

CONCUR:



ALAN E. HIGHERS, J.



DAVID R. FARMER, J.




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