                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                              March 29, 2001 Session

                       JACK HUTTER, v. ROBERT M. COHEN,
                                      and
                         JACK HUTTER v. H. ALLEN BRAY

                   Direct Appeal from the Circuit Court for Blount County
             Nos. l-11686 AND L11709     Hon. James B. Scott, Jr., Circuit Judge

                                       FILED MAY 8, 2001

                                  No. E1999-01859-COA-R3-CV



In these actions charging legal malpractice, the Trial Court granted summary judgment to defendants
on the grounds that the defendants’ actions did not deviate from the standard of conduct required of
them. We affirm.


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


HERSCHEL PICKENS FRANKS , J., delivered the opinion of the court, in which D. MICHAEL SWINEY,
J., joined. Charles D. Susano, Jr., J., dissented and filed an opinion.


Dail R. Cantrell, Clinton, Tennessee, for Appellant.

R. Franklin Norton and Geoffrey D. Kressin, Knoxville, Tennessee for Appellees, Robert M. Cohen
and H. Allen Bray.



                                              OPINION



        In these two legal malpractice actions, which were combined on appeal, the plaintiff alleged
in his pro se complaints, that he employed Cohen to represent plaintiff and paid legal fees and
expenses. The Complaint alleged that defendant’s conduct was a breach of “the defendant’s duty
to exercise reasonable care, skill, and diligence on plaintiff’s behalf, and that defendant did not file
certain motions and engage in other strategies, which led to plaintiff firing the defendant. Plaintiff
further asserted: “Defendant’s failure to represent plaintiff with reasonable care, skill, and diligence,
possessed and exercised by the ordinary attorney in similar circumstances have been the proximate
cause of [plaintiff’s damages].” As to the defendant H. Allen Bray, plaintiff averred that he had
employed Bray to represent plaintiff on certain legal matters and paid a $1,000.00 retainer. This
defendant was charged with failing to file motions and follow other strategies agreed upon between
the parties and concluded that “Defendant’s failure to represent plaintiff with reasonable care, skill,
and diligence possessed and exercised by the ordinary attorney in similar circumstances have been
the proximate cause of [plaintiff’s damages].”

       Subsequently, both defendants filed motions for summary judgment, asserting that the
complaints failed to state a claim or cause of action, and that plaintiff “has failed to prove” that
defendants’ conduct fell below the accepted standard of practice for attorneys practicing in Blount
County, Tennessee in similar communities.

       Both defendants filed Statements of Material Facts, pursuant to Tennessee Rules of Civil
Procedure, Rule 56, and attached their own affidavits which essentially state that the defendant was
“familiar with the facts of the case and with the facts surrounding the aforementioned
representation.” Each attorney then stated in affidavits that it was their professional opinion,

                within a reasonable degree of professional certainty . . . and based upon my personal
                knowledge and my review of the facts involved in the above captioned case, I 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 Hutter.

        Jack Hutter filed his own affidavits in response to the motions, which essentially stated that
he had attended law school, but did not graduate, and that he had discussed his cases with other
attorneys in Blount County, Tennessee and the surrounding area as to the standards for practicing
attorneys, and that he was familiar with the legally accepted standards for attorneys practicing law
in Blount County and the surrounding areas. He further stated that he was familiar with the facts of
the cases and of the defendants’ representation, and that in his opinion the defendants “did deviate
from or fall below the legally accepted standards of practice for attorneys practicing law in Blount
County, Tennessee and similar communities, and did fail to exercise that degree of care, skill and
diligence which is commonly possessed and exercised by attorneys practicing in this jurisdiction,
relative to [their aforementioned representation of plaintiff].”

       On August 25, 1999, plaintiff filed an Amended Complaint alleging breach of contract
against defendants, and on August 26, 1999 the Trial Court granted summary judgments to the
defendants. Subsequently, plaintiff filed a Rule 60 Motion and numerous other motions and
subpoenas for witnesses. On December 6, 1999, the Trial Judge entered an Order stating that the


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Court heard various of plaintiff’s motions, including his Tenn. R. Civ. P. Rule 60, his Amended
Complaint, his Motion for Contempt and Other Relief, and ordered all of plaintiff’s motions denied,
but permitted plaintiff “to amend his complaint as pled” and ordered the summary judgment entered
on August 26, 1999 to be set aside, but re-entered summary judgments in favor of defendants and
dismissed plaintiff’s complaints with full prejudice.

        On appeal, plaintiff raises identical issues as to each party, i.e., “whether the Trial Court erred
in granting the appellees’ Motion for Summary Judgment and in denying the appellant’s Motion to
Vacate the Order Granting the Appellee’s Motion for Summary Judgment, in that a legitimate
question of fact for the jury existed which should not have been dismissed as a matter of law,” and
“whether the Trial Court violated the appellant’s procedural due process rights.”

        Needless to say, plaintiff’s pro se complaints are not models of clarity. However, they
essentially charge each defendant with failure to represent plaintiff in accordance with the legally
accepted standard of practice for attorneys in Blount County or similar counties. Essentially,
plaintiff complains of the failure of defendants to file motions, make court appearances, and follow
strategies agreed upon between the parties.

        The Trial Court, in considering the motions for summary judgment, accepted defendants’
affidavits that they had exercised the requisite professional skills in these representations, and
plaintiff had not created a disputed issue in that his affidavit did not demonstrate his competence as
a witness to offer a contrary opinion.

         Those seeking a summary judgment must show the absence of any genuine issue of material
fact. Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The party seeking judgment must either
affirmatively negate a central element of the adversary’s claim, or conclusively establish an
affirmative defense. Id. at 215. In this case, we believe the defendants have conclusively established
affirmative defenses, in that their affidavits establish that they measured up to the degree of special
skill in representing this plaintiff so as to meet the standard for a professional in that community.
Cleckner v. Dale, 719 S.W.2d 535 (Tenn. App. 1986).1

       As to plaintiff’s contention about defendants’ strategies and trial tactics. This Court in Allen
v. Wiseman, 1998 WL 39 1803 (Tenn. Ct. App. 1988) said:

                At one time we thought that a lawyer’s trial conduct or tactics could not be
                questioned, see Stricklan v. Koella, 546 S.W.2d 810 (Tenn. App. 1976), but a more
                flexible approach was announced by the federal court in Woodruff v. Tomlin, 616
                F.2d 924 (6th Cir. 1980). The federal court, interpreting Tennessee law, recognized
                that there can be no liability for acts or omissions by an attorney in the conduct of


        1
         While defendants’ affidavits are broadly worded, we believe when read in light of the
complaints and defendants’ statements of undisputed facts the affidavits shift the burden to plaintiff
to raise a disputed issue of material fact.

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               litigation which are based on an honest exercise of professional judgment, but the
               court also said that an attorney is still bound to exercise a reasonable degree of skill
               and care. Cf. Pera v. Kroger Co., 674 S.W.2d 715 (Tenn. 1984).

                       We believe that whether an attorney has failed to meet that standard requires
               a knowledge of the issues involved in the litigation, what proof was available, what
               steps were taken to advance the client’s interests, and what reasons lay behind the
               choices made. With all the facts, a skilled, experienced trial lawyer could give an
               opinion about how the attorney’s actions measured up to the standard of reasonable
               skill and care. Ordinary laymen (even judges) could not say that the attorney’s
               conduct fell below that standard. See Cleckner v. Dale, 719 S.W.2d 535 (Tenn. App.
               1986).

        We conclude that the complaint by plaintiff as to the actions and lack of skill of defendants
are beyond the common knowledge of laymen, and in the absence of an affidavit refuting defendants’
affidavits, summary judgment was appropriate.

       Finally, we find plaintiff’s argument that he was denied due process in these cases is without
merit. It appears from the record that plaintiff was afforded reasonable time to procure an expert
witness, and the Trial Judge granted plaintiff on an least two occasions hearings on his various
motions.

        For the foregoing reasons, we affirm the judgment of the Trial Court and remand, with the
cost of the appeal assessed to the plaintiff, Jack Hutter.



                                                       _________________________
                                                       HERSCHEL PICKENS FRANKS , J.




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