                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  April 21, 2010 Session

                 W. CURTIS JORDAN v. CHARLES CLIFFORD

                   Appeal from the Circuit Court for Blount County
                    No. L-15574     Jon Kerry Blackwood, Judge




                No. E2009-01121-COA-R3-CV - FILED MAY 25, 2010


W. Curtis Jordan sued his former attorney, Charles Clifford, alleging breach of contract,
fraudulent conversion of property, and violation of the Tennessee Consumer Protection Act
(“the TCPA”). The case proceeded to a jury trial. At the close of Jordan’s proof, the court
dismissed the consumer protection claim based upon its holding that the TCPA did not apply
to the providing of professional services by an attorney. As to the remaining claims, the jury
returned a verdict in favor of Jordan for breach of contract and awarded him $2,500 in
damages. On appeal, Clifford contends that the trial court erred in entering a judgment on
the breach of contract claim and in failing to award him the attorney’s fees he incurred in
defending the consumer protection claim. We affirm.

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

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.

Charles M. Clifford, Maryville, Tennessee, appellant, Pro Se.

James H. Snyder, Jr., Alcoa, Tennessee, for the appellee, W. Curtis Jordan.

                                         OPINION
                                                  I.

        This case went to trial in September 2008. Three witnesses – Jordan, Jordan’s wife,
and Clifford – testified to the facts underlying the parties’ dispute and the ultimate demise
of their attorney-client relationship. We briefly summarize the proof presented at trial.1

       Jordan and his wife reside in the Castaway Cove subdivision in Blount County. In
February 2006, Jordan contacted Clifford, a licensed attorney, regarding a property matter.
In short, Jordan reported to the attorney that a neighboring property owner had constructed
a house that extended beyond the established set back line and obstructed a common
easement that granted lake access to all property owners in the subdivision. Jordan paid
Clifford $250 to “research the question.” In early March 2006, upon completing his initial
research, Clifford advised Jordan that he had a “great case.” Clifford requested a retainer of
$3,000 and, according to Jordan, promised to file a lawsuit within ten days of being paid in
full. Later that month, Jordan fully paid the retainer fee in two equal installments, but
Clifford did not file suit.

       In April 2006, Clifford represented Jordan at a hearing before the Blount County
Variance Committee at which the offending neighbor was seeking a variance from the set
back line for his newly constructed home. Following the hearing, the requested variance was
denied. According to Jordan, Clifford at that time again promised to file a lawsuit on his
behalf, this time within ten days of the hearing date, but did not do so.

        There was never a written agreement between the parties. On several occasions,
Clifford came to Jordan’s home to discuss the case and took numerous photographs with
respect to the boundary lines of the properties at issue. According to Jordan, however,
Clifford “seemed more interested in photography and discussing photography . . . than with
the legal case. . . .” At the end of each such visit, Clifford would promise to file the lawsuit
“within ten days.” Jordan recalled that at one point, Clifford referred to the merits of the case
as a “slam dunk.”

       From July 2006 forward, Jordan made no further efforts to communicate with Clifford
about his case or his dissatisfaction with Clifford’s services; Clifford admitted having “little
to no contact” with his client during that period. On September 22, 2006, Jordan notified
Clifford via a faxed letter that Clifford was terminated. The letter requested that Clifford
return all of Jordan’s payments within three days. Clifford refused to return any monies, but


       1
        We observe that although a court reporter recorded the testimony at trial, no transcript of the
evidence was filed. Instead, the parties rely on a Tenn. R. App. P. 24(c) statement of the evidence, as
amended and approved by the trial court.

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offered an accounting of his services. On October 11, 2006, Jordan received a letter detailing
Clifford’s time on the matter. The letter included Clifford’s promise that he would provide
Jordan with the photographs he had taken. Clifford sent Jordan a check for $750, but Jordan
never negotiated it.

        At trial, Clifford admitted that he did not follow the best standard of practice as set
out in the Tennessee Rules of Professional Conduct, but stated that he had violated no ethical
disciplinary rule. Clifford noted that the Rules suggested, but did not mandate, the use of a
written retainer agreement between the parties. Clifford was not certain of everything he
initially reviewed with Jordan regarding the terms of his employment. Clifford conceded he
never gave Jordan a complete copy of his case file and that he had lost the photographs he
had taken.

        Jordan hired his current counsel, Mr. Snyder, in September 2006. As of the time of
the trial, no suit had ever been filed by Jordan against his neighbor. At trial, Jordan offered
no testimony regarding his claims under the TCPA. Mrs. Jordan testified that she was
“distraught” over Clifford’s failure to file a lawsuit and confirmed her husband’s testimony
to the effect that Clifford had promised to file suit but had failed to do so.

        Called as an adverse witness, Clifford stated that he initially researched the issue of
whether “a suit seeking the neighbor to move a portion of his house to comply with the
[county and subdivision] setback lines could succeed.” After working for “considerably
more than one hour,” Clifford found case law from other jurisdictions indicating that such
an action could succeed. As a result, Clifford informed Jordan that he would take his case
“for a retainer of three thousand dollars against an hourly rate of two hundred fifty dollars.”
Clifford asserted that, although there was no written agreement, he had reviewed with Jordan
his fee agreement at length. Clifford denied ever promising to file a lawsuit on Jordan’s
behalf within ten days of receiving the retainer.

        According to Clifford, he stood “ready, willing and able to continue representing
[Jordan]” when he was fired in September 2006. Clifford agreed that he delivered to
Jordan’s new counsel a file containing only three pages. Clifford took the position, however,
that he “had a good memory and the issues in [Jordan’s case] were largely legal.” Clifford
calculated that he performed over nine hours of work on Jordan’s case at the rate of $250,
for a total cost of $2,250, and had refunded to Jordan the unearned balance of the retainer.

       As previously noted, at the close of Jordan’s proof, the trial court granted Clifford a
directed verdict on the consumer protection claim. The remaining claims were submitted to
the jury, which found in favor of Jordan on the breach of contract claim and awarded
damages in the amount of $2,500. Following the denial of his post trial motions, including

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a motion for directed verdict, dismissal, or new trial, motion for attorney’s fees, and motion
for remittitur, Clifford timely filed a notice of appeal.

                                             II.

       As set forth in his brief, Clifford presents the following issues for our consideration:

              1. Whether a claim by a client against his attorney styled “breach
              of contract” contains the same elements as one styled “legal
              malpractice.”

              2. Whether expert proof is required in a “breach of contract”
              action by a client against his attorney.

              3. Whether the trial court erred in denying Clifford’s claim for
              a portion of his attorney’s fees under Tenn. Code Ann. § 47-18-
              109(e)(2).

                                             III.

       Our standard of review of a judgment on a jury verdict is as follows:

              Our standard of review after a trial court approves a jury’s
              verdict is limited to determining whether the record contains any
              material evidence to support the jury’s verdict. Tenn. R. App. P.
              13(d). See also Washington v. 822 Corp., 43 S.W.3d 491, 494
              (Tenn. Ct. App. 2000). The process of ascertaining the
              evidentiary support for a jury’s verdict is extremely deferential
              to the verdict. See Kelley v. Johns, 96 S.W.3d 189, 194-95
              (Tenn. Ct. App. 2002). This narrow search for any material
              evidence is a procedural safeguard to a litigant's constitutional
              right of trial by jury; thus, it “requires us to take the strongest
              legitimate view of all the evidence to uphold the verdict, to
              assume the truth of all that tends to support it, to discard all to
              the contrary, and to allow all reasonable inferences to sustain the
              verdict.” D.M. Rose & Co. v. Snyder, 185 Tenn. 499, 206
              S.W.2d 897, 901 (Tenn. 1947); see Kelley, 96 S.W.3d at 194.
              This Court is not permitted to second-guess the jury’s findings
              by reweighing the evidence to decide where it preponderates or
              to make our own credibility determinations. See Electric Power

                                              -4-
             Bd. of Chattanooga v. St. Joseph Structural Valley Steel Corp.,
             691 S.W.2d 522, 526 (Tenn. 1985).

Ballard v. Serodino, Inc., No. E2004-02656-COA-R3-CV, 2005 WL 2860279, at *3 (Tenn.
Ct. App. E.S., filed Oct. 31, 2005) (emphasis in original).

                                            IV.

      In his first two issues, Clifford challenges the judgment on the jury’s verdict on
Jordan’s breach of contract claim. More specifically, Clifford contends that the judgment
must be reversed because the breach of contract claim: (1) is actually one for legal
malpractice and (2) was not established by expert proof as required under Tennessee law.
We address these related contentions together.

      In denying Clifford relief from the judgment, the trial court noted the following:

             [Clifford’s] motions allege that despite [Jordan’s] theory of
             breach of contract, the complaint was one of legal malpractice.
             [Clifford] further argues that since [Jordan] did not present any
             expert legal witnesses on the issue of standard of care, this Court
             must grant his motion to dismiss the case.

             A legal malpractice case must “prove that the attorney’s conduct
             fell below skill and diligence which is commonly possessed and
             exercised by attorneys practicing in the same jurisdiction . . . .
             [and] demonstrate a nexus between the negligence and the
             injury.” Sanjines v. Ortwein & Assoc., P.C., 984 S.W.2d 907,
             910 (Tenn. 1998). A cause of action for breach of contract
             accrues when one of the contracting parties “demonstrates a
             clear, total repudiation of the contract.” Wilkins v. Third Nat’l
             Bank, 884 S.W. 2d 758, 761 (Tenn. Ct. App. 1994). Tennessee
             courts look to the “gravamen of the complaint rather than its
             designation as an action in tort or contract.” Keller v. Colgems-
             EMI Music, 924 S.W.2d 357, 359 (Tenn. Ct. App. 1996). To
             determine the gravamen of the complaint, courts “must look to
             the basis for which damages are sought.” Id.

             The complaint alleges that [Clifford] breached a contract with
             [Jordan] by failing to provide services that [Jordan] had paid for.
             The damages sought pursuant to this claim was the amount of

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              attorney fees paid by [Jordan]. There are no allegations in the
              complaint for legal malpractice.

              Tennessee courts have made a clear distinction between a breach
              of contract action against an attorney and a legal malpractice
              action. In Lewis v. Caputo, . . . the plaintiff sued his former
              attorney for both legal malpractice and breach of contract. [T]he
              plaintiff alleged that the defendant attorney had failed to
              perform his cont[r]act. The court found that this allegation
              stated a cause of action for breach of contract. It is clear that the
              issues in a breach of contract and legal malpractice [action] are
              distinct and separate each requiring proof of different elements
              both as to liability and damages. Consequently, [the] plaintiff
              does not have to establish the standard of care in a breach of
              contract action. In the case at bar, [Jordan] sought damages only
              for the amount he alleged he paid [Clifford] for his purported
              services which [Jordan] alleged [Clifford] failed to provide.
              Therefore, there was ample evidence before the jury to sustain
              a verdict for breach of contract.

       The essence of Clifford’s argument is stated in his brief: “Whether it be styled
negligence or contract, there is only one recognized action a client may bring for his
attorney’s breach of duty; a legal malpractice claim.” Relying on case law and other
authorities that speak to malpractice actions, Clifford urges that Jordan’s complaint alleges
a “breach of duty” by Clifford that is and can only be properly construed as a claim for legal
malpractice rather than breach of contract. In upholding the verdict, however, the trial court
expressly rejected Clifford’s position, as do we.

       In his complaint, Jordan simply alleged that “[Clifford] did not provide the services
that [Jordan] paid him to perform.” Without question, Jordan thereby raised a breach of
contract claim. A breach of contract action arises “when the acts and conduct of one party
evince an intention no longer to be bound by the contract.” Church of Christ Home for
Aged, Inc. v. Nashville Trust Co., 184 Tenn. 629, 642, 202 S.W.2d 178, 183 (1947). A legal
malpractice claim, on the other hand, requires proof of the following elements:

              (1) that the accused attorney owed a duty to the plaintiff, (2) that
              the attorney breached that duty, (3) that the plaintiff suffered
              damages, (4) that the breach was the cause in fact of the
              plaintiff’s damages, and (5) that the attorney’s negligence was
              the proximate, or legal, cause of the plaintiff’s damages.

                                               -6-
Gibson v. Trant, 58 S.W.3d 103, 108 (Tenn. 2001). In the present case, Jordan did not allege
that Clifford was negligent in his handling of the case. Rather, he alleged that Clifford totally
failed to perform his side of their bargain when he failed to file a lawsuit for Jordan as he had
agreed to do. As the measure of his damages, Jordan sought the return of fees he had paid
to Clifford under their contract. Such an allegation makes out a breach of contract claim
because it is rooted solely in the terms of the oral contract the parties entered into. The
allegation does not, however, make out a malpractice action as it “is not premised on a belief
that the defendant failed to adhere to the professional standard of care required of Tennessee
attorneys.” Lewis v. Caputo, No. E1999-01182-COA-R3-CV, 2000 WL 502833 at *4 (Tenn.
Ct. App. E.S., filed Apr. 28, 2000).

       The proof at trial, when viewed in “the strongest legitimate view of all the evidence
to uphold the verdict,” see Ballard at *3, clearly shows that the parties entered into an oral
contract under which Clifford agreed to file a lawsuit within ten days of his receipt of a
$3,000 retainer fee paid by Jordan. Although Clifford denied promising to file the lawsuit
“within ten days,” the jury heard from both parties and obviously resolved this dispute in
Jordan’s favor. “[D]eterminations regarding the credibility of the witnesses fall within the
purview of the jury.” Miller v. Williams, 970 S.W.2d 497, 499 (Tenn. Ct. App. 1998). In
any event, it is undisputed that, although Jordan paid Clifford the agreed upon fee in March
2006, suit was never filed and communications between the parties had basically ceased by
the time Jordan fired Clifford some six months later.

       As to Clifford’s second issue, he correctly states the general rule that “cases of legal
malpractice cannot be decided without expert proof regarding the applicable standard of care
and whether the lawyer’s conduct complies with this standard.” Lazy Seven Coal Sales, Inc.
v. Stone & Hinds, P.C., 813 S.W.2d 400, 406 (Tenn. 1991)(quoting Cleckner v. Dale, 719
S.W.2d 535, 540 (Tenn. Ct. App. 1986)). As discussed above, we have rejected Clifford’s
position that the breach of contract claim raised in the present case is actually a mislabeled
claim for legal malpractice. Accordingly, we also reject his contention that Jordan’s breach
of contract claim cannot be sustained without expert proof.

       In summary, this Court concludes that the record contains material evidence to support
the jury’s verdict finding in favor of Jordan on the breach of contract claim.




                                               -7-
                                                     V.

       Clifford asserts that Jordan made no good faith effort to prosecute the claim brought
under the TCPA, a claim Clifford contends is “without any foundation in law or in fact.” He
seeks an award of $1,791 in attorney’s fees for a combined total of eight and a half hours that
he and his attorney spent researching the applicability of the TCPA to the instant case.

      With respect to an award of attorney’s fees under the TCPA, Tenn. Code Ann. § 47-
18-109(e)(2) provides in relevant part as follows:

                In any private action commenced under this section, upon
                finding that the action is frivolous, without legal or factual
                merit, or brought for the purpose of harassment, the court may
                require the person instituting the action to indemnify the
                defendant for any damages incurred, including reasonable
                attorney’s fees and costs.

The trial court summarily denied Clifford’s motion for a partial recovery of his attorney’s
fees as follows: “[Clifford] has made a claim for attorney[’s] fees and expenses incurred in
defending the [TCPA] [claim]. This claim was dismissed by the Court. The Court denies
that motion.”

        This Court has observed that a “consequence of a suit under the TCPA that is
‘frivolous, without legal or factual merit, or brought for the purpose of harassment’ is a
possible imposition of fees against the party asserting such claim.” Don Smith Ford,
Lincoln-Mercury, Inc., v. Bolinger, No. E2003-02764-COA-R3-CV, 2005 WL 711963, at
*6 (Tenn. Ct. App. E.S., filed Mar. 29, 2005 (emphasis added)). In the present case, both
parties assert a finding by the trial court that the TCPA “does not apply to attorneys” as the
basis for the court’s dismissal of the consumer protections claim.2 Otherwise, the record
contains only Clifford’s motion to dismiss the TCPA claim, together with a supporting
memorandum of law, and Jordan’s response in opposition. As we have noted, the trial court
ultimately dismissed the TCPA claim at the close of Jordan’s proof.

       As previously noted, the TCPA requires a finding that a claim brought thereunder is
“frivolous, without legal or factual merit, or brought for the purpose of harassment” before
a potential award of attorney’s fees is triggered. In the instant case, the record fails to reflect


        2
         The record before us contains no findings relating to the trial court’s dismissal of the TCPA claim.
In the order denying Clifford’s post-trial motion for fees and costs, the court simply noted that it had
“dismissed the claims filed under the [TCPA].”

                                                    -8-
any such finding. Moreover, on considering the matter, the trial court expressly rejected
Clifford’s request for attorney fees under Section 47-18-109(e)(2) of the TCPA. “As the
language of the statute makes clear, even where this prerequisite is met, whether or not to
award fees is discretionary with the court.” Glanton v. Bob Parks Realty, et al., No. M2003-
01144-COA-R3-CV, 2005 WL 1021559, at * 9 (Tenn. Ct. App., M.S., filed April 27, 2005).

        This Court reviews a trial court’s decision on the subject of attorney’s fees under the
TCPA under the abuse of discretion standard. Id. “A finding of abuse of discretion is proper
when the trial court applied an incorrect legal standard or reached a decision against logic
or reasoning that caused an injustice to the party complaining.” Id. (citing Eldridge v.
Eldridge, 42 S.W.3d 82, 85 (Tenn.2001); State v. Coley, 32 S.W.3d 831, 833 (Tenn.2000)).
On our review, we cannot say that the trial court abused its discretion in denying an award
of attorney’s fees related to the TCPA claim.

                                             VI.

       The judgment of the trial court is affirmed. This case is remanded to the trial court,
pursuant to applicable law, for enforcement of the court’s judgment and the collection of
costs assessed below. Costs on appeal are taxed to the appellant, Charles Clifford.




                                                    _______________________________
                                                    CHARLES D. SUSANO, JR., JUDGE




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