                  IN THE COURT OF APPEALS OF TENNESSEE
                       WESTERN SECTION AT JACKSON


JOHNNY MOFFITT,                      )
                                     )
                                                                      FILED
            Plaintiff/Appellant,     ) Henderson Circuit No. 91-205
                                     )                              February 23, 1998
VS.                                  ) Appeal No. 02A01-9705-CV-00095
                                     )                             Cecil Crowson, Jr.
CARTHEL SMITH,                       )                              Appellate C ourt Clerk

                                     )
            Defendant/Appellee.      )


        APPEAL FROM THE CIRCUIT COURT OF HENDERSON COUNTY
                     AT LEXINGTON, TENNESSEE
             THE HONORABLE FRANKLIN MURCHISON, JUDGE




JOHNNY MOFFITT, pro se
Clifton, Tennessee



EDWIN E. WALLIS, JR.
ROLF S. HAZLEHURST
MOSS, BENTON & WALLIS, PLLC
Jackson, Tennessee
Attorneys for Appellee




AFFIRMED




                                                         ALAN E. HIGHERS, J.



CONCUR:

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

DAVID R. FARMER, J.
     Plaintiff, Johnny Moffitt (“Plaintiff”), has appealed from a summary judgment
dismissing his cause of action against the defendant, Carthel Smith (“Defendant”), for legal

malpractice. The Defendant was appointed to represent the Plaintiff who was charged with

first degree murder and shooting into an occupied dwelling. Plaintiff was found guilty on

both counts by a Henderson County Circuit Court jury on August 11, 1989. The jury’s

verdict was upheld on appeal by the Court of Criminal Appeals in an opinion filed on

December 5, 1990.



       On November 7, 1991, Plaintiff filed a civil lawsuit against the Defendant in the

Henderson County Circuit Court alleging legal malpractice in the handling of the criminal

matter.   Plaintiff sought compensatory damages of two million dollars and punitive

damages of two million dollars. An answer was filed on behalf of the Defendant on

December 13, 1991. The Defendant filed a Motion for Summary Judgment on February

24, 1992.    The Defendant relied on the pleadings and attached affidavits from the

following: Jerry Woodall, the District Attorney General for the Twenty-Sixth Judicial District

of the State of Tennessee who prosecuted the case against the Plaintiff; Judge W hit Lafon,

the Circuit Court Judge for the Twenty-Sixth Judicial District of the State of Tennessee who

presided over the trial; and James E. Cody, a former employee of the Henderson County

Sheriff’s Department.



       District Attorney General Woodall and Judge Lafon stated that the Defendant

utilized the pre-trial discovery rules available for the Plaintiff’s behalf, filed the proper pre-

trial motions, explored the testimony of the witnesses by direct examination, as well as

cross-examination, emphasized the issues which would relate to the Plaintiff’s innocence,

but that the evidence offered against the Plaintiff was overwhelming. They both affirmed

that the Defendant’s representation of the Plaintiff was adequate and within the standards

of the legal profession for representation of a criminal defendant. Mr. Cody affirmed that

he heard the Plaintiff state on more than one occasion that he was well satisfied with the

Defendant’s representation and that the Plaintiff believed that the Defendant had done a

good job for him.




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       By order dated June 2, 1992, the trial court granted Defendant’s Motion for

Summary Judgment. The Plaintiff filed a notice of appeal to this court on June 15, 1992.

In an opinion filed on March 29, 1993, this court reversed and remanded the decision of

the trial court and stated: “The Defendant in his Motion for Summary Judgment and

supporting Affidavits has not addressed the Plaintiff’s allegation regarding Defendant’s

alleged failure to properly investigate the case prior to trial.”          We further stated:

“Defendant’s Answer joined issue on the allegations of Plaintiff’s Complaint, but Defendant

did not file any affidavit or other evidence controverting Plaintiff’s allegations concerning

Defendant’s trial preparation.” In conclusion, we stated that it would not be inconceivable

that after further proceedings on remand, the posture of the case may be such that either

party may move for summary judgment pursuant to the provisions of Tenn. R. Civ. P. 56.



       On June 17, 1996, the Defendant filed a second Motion for Summary Judgment.

The second Motion for Summary Judgment contained all of the Affidavits of the original

Motion for Summary Judgment plus three additional affidavits as follows: Defendant

Carthel Smith, co-counsel Jack Hinson, and attorney Patrick Martin.



       The affidavits of Defendant and Jack Hinson address the actions of the Defendant

and his co-counsel during the pre-trial, trial, and appellate process of the defense of

Plaintiff. This included all the investigative actions Defendant and Mr. Hinson took as

counsel for Plaintiff.



       The affidavit of Patrick Martin is the professional opinion of an expert witness who

has practiced criminal law in excess of fifteen years. In his affidavit, Mr. Martin states that

he reviewed all of the relevant files and documentation regarding Defendant’s

representation of Plaintiff, and that based upon this thorough review of the case and in his

professional opinion, Defendant fully and adequately prepared for and investigated the

case against Plaintiff in all stages of the case, including the pre-trial, trial, and appellate

process. Mr. Martin stated in relevant part:

              In my professional opinion, Carthel Smith filed all pre-trial, trial
              and appellate motions which were necessary in the


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              representation of Johnny Moffitt and pursued every
              conceivable legal and ethical option which might have led to a
              verdict favorable to the criminal defendant Johnny Moffitt . . .
              [t]he services of Carthel Smith in the representation of the
              criminal defendant, Johnny Moffitt, were within the community
              standards both for the pre-trial investigation, the trial and
              appeal and were not neglectful of anything that needed to have
              been done to properly represent the defendant Johnny Moffitt.


       The trial court granted the Defendant’s Motion for Summary Judgment and denied

the Plaintiff’s Motion to place this case on a continuous docket in orders dated December

9, 1996. The Plaintiff filed a Notice of Appeal on January 6, 1997.



                                    Law and Discussion

       Summary judgment is to be granted only if the “pleadings, depositions, answers to

interrogatories, and admissions on file together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Tenn. R. Civ. P. 56.03. In ruling on a motion for summary

judgment, the courts must consider the matter in the same manner as a motion for a direct

verdict made at the close of the plaintiff’s proof, i.e., all the evidence must be viewed in the

light most favorable to the opponent of the motion and all legitimate conclusions of fact

must be drawn in favor of the opponent. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993).

The Byrd court went on to provide in pertinent part:

              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 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 (emphasis original) (citations omitted).



       In a suit against an attorney for professional negligence, the plaintiff must prove

three things in order to recover: (1) the employment of the attorney; (2) neglect by the

attorney of a reasonable duty; and (3) damages resulting from such neglect. Sammons

v. Rotroff, 653 S.W.2d 740, 745 (Tenn. Ct. App. 1983). The settled general rule in most

if not all American jurisdictions is that an attorney to whom the conduct of litigation is



                                               4
entrusted may be held liable to his client for damages resulting from his failure to exercise

ordinary care, skill, and diligence, or, as it is frequently expressed, that degree of care, skill,

and diligence which is commonly possessed and exercised by attorneys in practice in the

jurisdiction. Wood v. Parker, 901 S.W.2d 374 (Tenn. Ct. App. 1995); See 45 A.L.R.2d 5,

12.



       It is well settled in Tennessee that legal malpractice action involving issues of

standard of care and breach thereof require expert testimony. Lazy Seven Coal Sales v.

Stone & Hines, 813 S.W.2d 400, 406 (Tenn. 1991); Cleckner v. Dale, 719 S.W.2d 535

(Tenn. Ct. App. 1986). The Supreme Court, in Lazy Seven Coal Sales v. Stone & Hines,

813 S.W.2d 400, 406 (Tenn. 1991), quoted from Cleckner v. Dale, 719 S.W.2d 535 (Tenn.

Ct. App. 1986) as elaborating upon the standard to which attorneys are held in civil actions

for damages:

               The standard of care applicable to a particular case will vary
               depending upon the type of legal activity involved. The
               standard of care applicable to civil litigators may not be the
               same standard applicable to lawyers representing the buyers
               in a real estate transaction or to lawyers drafting complicated
               testamentary instruments. The varied nature of the practice of
               law underscores the necessity of expert proof intended to
               acquaint the finder of fact with the applicable professional
               standard in each case . . . [w]hether a lawyer’s conduct meets
               the applicable standards is generally believed to be beyond the
               common knowledge of laypersons. Thus, except in cases
               involving clear and palpable negligence, most courts
               considering the issue have held 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.



Id. at 540. The Cleckner court went on to provide:

               We have determined that the evidentiary principles developed
               in medical malpractice cases are equally applicable to legal
               malpractice cases. The lawyer’s standard of care, except in
               the most extreme cases, should be proved using expert
               testimony. Likewise, whether the lawyer’s conduct in a given
               case departed from the applicable standard should also be
               proved by expert testimony.


       In the case under submission, the burden was placed on the Plaintiff to prove that

the Defendant owed Plaintiff a duty of professional reasonable care as his attorney, that



                                                5
Defendant breached that standard of care of professionally reasonable care, and that as

a result of this breach, Plaintiff suffered damages. In an attempt to satisfy this burden,

Plaintiff alleges that Defendant’s representation of him was inadequate in every stage of

the matter--pre-trial, trial, and appellate. Additionally, Plaintiff avers that Defendant’s

investigation of the case was inadequate in that Defendant allegedly failed to investigate

the crime scene, failed to contact favorable witnesses having exculpatory evidence, and

failed to contact witnesses found in law enforcement reports that contradicted the state’s

witnesses.



       Undoubtedly, these are not matters within the common knowledge of a layperson.

Expert testimony is required. See Cleckner v. Dale, supra. As mentioned above, since the

onset of Defendant’s first Motion for Summary Judgment, Defendant has proffered three

additional affidavits in the record, one of which is designated as an expert in the area of

criminal defense. These additional affidavits essentially “patch up the holes” that were

present in Defendant’s first Motion for Summary Judgment. As mentioned supra, the

additional affidavits state that Defendant complied with the standard of applicable care for

a criminal defense attorney in Henderson County, Tennessee, in all aspects of the cause

of action--pre-trial, trial, appellate, and investigatory matters. We conclude that Defendant

has met his burden of persuading this court that no genuine and material factual issues

exist, and that it is therefore, entitled to judgment as a matter of law.



       Once the Defendant carried his burden, the burden then shifted to Plaintiff to prove

that there was at least one genuine issue of material fact. He, however, has offered

absolutely nothing by way of expert testimony concerning (1) the applicable standard of

care for a criminal defense attorney in Henderson County, Tennessee, or (2) how this

standard of care was breached by Defendant. Undoubtedly, this is required by Cleckner

and Lazy Seven Coal Sales, supra. The only response made by Plaintiff in regard to this

Motion for Summary Judgment was his own sworn affidavit which, essentially, restates

some specifics of his allegations of negligence stated in his complaint. As such, Plaintiff

has failed to establish an essential element of his case--that Defendant breached the



                                              6
standard of care applicable to a criminal defense attorney in Henderson County,

Tennessee.



       In summary, we conclude that, in those legal malpractice actions wherein expert

legal testimony is required to establish negligence and proximate cause, affidavits by

attorney(s) who are experts in the particular area in question which clearly and completely

refute Plaintiff’s contention afford a proper basis for dismissal of the action on summary

judgment, in the absence of proper responsive proof by expert affidavit or otherwise.

Consequently, we affirm the judgment of the trial court granting Defendant’s Motion for

Summary Judgment.



       Concerning Plaintiff’s contention that this matter should be placed on a continuous

docket until such time as Plaintiff may become available to proceed with said matter, we

find this contention is not well taken. In his Motion to Place this Case on a Continuous

Docket, Plaintiff relies upon Whisnant v. Byrd, 525 S.W.2d 152 (Tenn. 1975) and Smith v.

Peebles, 681 S.W.2d 567 (Tenn. Ct. App. 1984). Upon reviewing these cases, we find that

they are distinguishable from the case at bar. In both Whisnant and Peebles, the

prisoners’ claims had come to the point of a trial. In the instant case, the Defendant is

petitioning the court to grant his Motion for Summary Judgment. This cause is not to the

point of a trial. Plaintiff’s personal attendance is not required. Plaintiff has a sufficient

means of conveying his arguments to the court via his memoranda to the court.

Furthermore, Plaintiff’s testimony could have been presented to the court via deposition

or affidavit. We, therefore, affirm the decision of the trial court denying Plaintiff’s Motion

to Place this Case on a Continuous Docket.



       We affirm the judgment of the trial court granting Defendant’s Motion for Summary

Judgment and denying Plaintiff’s motion to place the case on a continuous docket . Costs

of this appeal are assessed against Plaintiff, for which execution may issue if necessary.




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                           HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




FARMER, J.




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