                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 OCTOBER 18, 2000 Session

                     ROBERT J. BURTON v. KENT F. GEARIN

                  Direct Appeal from the Circuit Court for Weakley County
                     No. 3577; The Honorable William B. Acree, Judge



                  No. W1999-01022-COA-R3-CV - Filed November 29, 2000


The Appellee was appointed by the Circuit Court of Weakley County to represent the Appellant in
his petition for post conviction relief. The circuit court denied the Appellant’s petition, and the
Tennessee Court of Criminal Appeals affirmed. The Appellant filed a complaint for legal
malpractice against the Appellee. The Appellant also filed a motion to hold the matter in abeyance
until he was released from prison. The trial court failed to rule on the motion for abeyance. The trial
court entered summary judgment in favor of the Appellee.

        The Appellant appeals the trial court’s grant of summary judgment in favor of the Appellee
and the trial court’s failure to rule on the motion for abeyance. For the reasons stated herein, we
reverse the judgment of the trial court and remand this case for further proceedings consistent with
this opinion.

   Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Reversed and
                                       Remanded

ALAN E. HIGHERS , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY KIRBY LILLARD , J., joined.

Robert J. Burton, pro se

Tim Edwards, James F. Horner, for the Appellee




                                             OPINION
                                 I. Facts and Procedural History

        The Appellant, Robert J. Burton (“Mr. Burton”), was convicted by the Circuit Court of
Weakley County of one count of rape and one count of incest involving Mr. Burton’s thirteen year
old daughter. Mr. Burton was represented by counsel of his own choosing during the criminal trial.
Trial counsel appealed Mr. Burton’s conviction to the Tennessee Court of Criminal Appeals which
affirmed the conviction. The Tennessee Supreme Court denied review of the decision.

         Mr. Burton filed a petition for post-conviction relief in the Circuit Court of Weakley County,
alleging ineffective assistance of counsel resulting in his criminal conviction. The Appellee, Kent
F. Gearin (“Mr. Gearin”), was appointed by the court to represent Mr. Burton in the post-conviction
relief proceeding. The circuit court denied Mr. Burton’s petition for post-conviction relief. Mr.
Gearin appealed to the Tennessee Court of Criminal Appeals. The court of criminal appeals affirmed
the trial court’s decision.

        On April 6, 1999, Mr. Burton, acting pro se, brought an action for legal malpractice, claiming
that Mr. Gearin failed to render effective assistance of counsel in the post-conviction relief
proceeding. Mr. Burton also filed a motion to hold the matter in abeyance until he was released from
prison. On June 25, 1999, Mr. Gearin filed a motion for summary judgment seeking dismissal of
Mr. Burton’s case on two grounds: (1) Mr. Burton failed to present any expert testimony establishing
that Mr. Gearin deviated from the applicable standard of professional care in his representation of
Mr. Burton; and (2) Mr. Burton failed to obtain post-conviction relief prior to the institution of his
legal malpractice action. As support for the motion, Mr. Gearin submitted his own affidavit in which
he stated the facts concerning his representation of Mr. Burton and his expert opinion that he did not
deviate from the applicable standard of care. On August 9, 1999, the trial court granted Mr.
Gearin’s motion for summary judgment, finding that Mr. Burton failed to meet his burden of
establishing the necessary elements of his claim. The trial court failed to rule on Mr. Burton’s
motion for abeyance. This appeal followed.

                                       II. Law and Analysis

        This case is governed by a recent decision of the Tennessee Supreme Court, Logan v.
Winstead, 23 S.W.3d 297 (Tenn. 2000). The facts and issues in Logan are nearly identical to those
in the case at hand. Mr. Logan, an inmate, brought a legal malpractice claim, acting pro se, against
his criminal defense attorney, Mr. Winstead. See id. at 299. Mr. Winstead filed a motion for
summary judgment supported by his expert affidavit. See id. at 300. Mr. Logan filed a motion to
hold the proceedings in abeyance until he was released from prison. See id. The trial court failed
to rule on the motion for abeyance. See id. The trial court entered summary judgment in favor of
Mr. Winstead. See id. The court of appeals upheld the decision. See id.

       The supreme court granted Mr. Logan’s petition to appeal to address the abeyance issue. See
id. The court found that an incarcerated plaintiff has no absolute right to have civil proceedings


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stayed or to be present during civil litigation.1 See id. at 300-01. The court set forth the following
guidelines for determining when an abeyance should be granted:

         an abeyance should be granted by the trial court only when reasonable under the
         circumstances, in light of several countervailing considerations, such as the length
         of the prisoner litigant’s sentence, the difficulty of the prisoner in presenting proof,
         the burden on the court in maintaining a docket on which such claims will
         indefinitely remain, the impracticability of litigating a suit many years after its filing
         because memories fade and witnesses become difficult to locate, and a defendant’s
         rights to have claims against him orher timely adjudicated.

Id. at 301. Concluding that the trial court erred by failing to rule on Mr. Logan’s motion for
abeyance, the court stated, “[a]ppellate review becomes much more difficult without an order
specifying reasons for a trial court’s grant or denial of a motion. . . . [S]uch plaintiffs are entitled to
have requests for abeyances considered and determined under the appropriate legal standards.” Id.
at 303. Because the trial court erred by failing to consider and rule on Mr. Logan’s motion for
abeyance, the court reversed the judgments of the trial court and the court of appeals and remanded
the case for further proceedings. See id.

        Likewise, in the case at hand, the trial court failed to rule on Mr. Burton’s motion for
abeyance. Thus, we reverse the judgment of the trial court granting summary judgment to Mr.
Gearin. We remand this case to the trial court to consider, pursuant to the guidelines set forth in
Logan v. Winstead, whether Mr. Burton’s request for an abeyance should be granted. If, in its
discretion, the trial court determines that an abeyance is not appropriate, the trial court may deny Mr.
Burton’s request for an abeyance and rule upon Mr. Gearin’s motion for summary judgment.

                                                 III. Conclusion

        For the foregoing reasons, the decision of the trial court is reversed and the cause remanded
for further proceedings consistent with this opinion. Costs of this appeal are taxed against the
Appellee, Kent F. Gearin, for which execution may issue if necessary.


                                                                ___________________________________
                                                                ALAN E. HIGHERS, JUDGE




         1
           The supreme court overruled Whisnant v. Byrd , 525 S.W.2d 152 (Tenn. 1975) to the extent that it may be read
to stand fo r that prop osition. See Logan, 23 S.W.3d at 301.

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