                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                         ASSIGNED ON BRIEFS JUNE 7, 2000

         STEPHEN R. STAMPS v. VICTORIA L. DIBONAVENTURA

                  Direct Appeal from the Circuit Court for Henry County
                     No. 1360; The Honorable Julian P. Guinn, Judge



                  No. W1999-00534-COA-R3-CV - Filed October 11, 2000


This case arises from the Appellee’s legal representation of the Appellant in a Petition for Post
Conviction Relief. The Appellant’s Petition was denied by the Criminal Court of Henry County and
the Court of Criminal Appeals. After denial of his Application for Permission to Appeal by the
Tennessee Supreme Court, the Appellant filed a Complaint of Legal Malpractice with the Circuit
Court of Henry County. The trial court dismissed the Appellant’s Complaint following a Motion
to Dismiss filed by the Appellee. The Appellant appeals from the dismissal of his Complaint filed
in the Circuit Court of Henry County. For the reasons stated herein, we affirm the trial court’s
decision.

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

ALAN E. HIGHERS , J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
KIRBY LILLARD , J., joined.

Stephen R. Stamps, pro se

Victoria L. Dibonaventura, pro se

                                           OPINION


                               I. Facts and Procedural History

        The Appellant, Stephen R. Stamps, is an inmate in the lawful custody of the Tennessee
Department of Correction. At all times relevant to this appeal, Mr. Stamps has been incarcerated
at the Minimum Security Complex of West Tennessee State Penitentiary in Henning, Tennessee.

        On May 1, 1995, Mr. Stamps filed a Petition for Post Conviction Relief with the Criminal
Court of Henry County. The Appellee, Victoria L. DiBonaventura, was appointed on May 18, 1995
to represent Mr. Stamps. On January 4, 1996, the trial court entered an order denying Mr. Stamps’
Petition. Mrs. DiBonaventura filed a Notice of Appeal to the Court of Criminal Appeals in Jackson,
Tennessee on January 31, 1996.

       On April 20, 1998, Mr. Stamps requested by letter from Mrs. DiBonaventura the status of
his appeal, a copy of the State’s brief, and a copy of the State’s answer to the Petition for Post
Conviction Relief. Mr. Stamps’ sister, Tina Enoch, contacted Mrs. DiBonaventura’s receptionist
on or about May 15, 1998 and informed her that Mr. Stamps needed an answer to his letter. On or
about May 27, 1998, Mr. Stamps received a letter from Mrs. DiBonaventura dated May 22, 1998,
a copy of the State’s brief, and a copy of the State’s answer to the Petition for Post Conviction
Relief. In her letter, Mrs. DiBonaventura stated that she periodically checked with the Court of
Criminal Appeals as to the status of Mr. Stamps’ case.

        On June 29, 1998, Mrs. DiBonaventura mailed Mr. Stamps a notice, mandate, judgment, and
decision handed down by the Court of Criminal Appeals on March 27, 1998 which affirmed the trial
court’s decision. Mrs. DiBonaventura stated that she had not mailed this sooner because she had
been on vacation the first two weeks of June. Confusing the date of decision, Mrs. DiBonaventura
informed Mr. Stamps that he had sixty days from May 27, 1998 instead of March 27, 1998 to file
an Application to Appeal to the Tennessee Supreme Court.

        Mrs. DiBonaventura filed a motion with the Court of Criminal Appeals for an order allowing
the time from which the Appellant may file an Application for Permission to Appeal to the
Tennessee Supreme Court to begin on June 1, 1998 rather than March 27, 1998. Mrs.
DiBonaventura asserted that she was not aware of the court’s March 27, 1998 judgment and opinion
until June 1, 1998 when the mandate issued to the trial court. The court noted in its Order that Mrs.
DiBonaventura failed to apprise the court clerk’s office of her change of business address. The court
further stated, however, that the clerk’s office notified Mr. Stamps that he would receive a copy of
the opinion when it was filed, yet the record reflected that a copy was never sent to him. Because
the failure to seek timely supreme court review was due to no fault of Mr. Stamps, the Court of
Criminal Appeals ordered that the March 27, 1998 judgment be vacated and reinstated as of the date
of the filing of its order, August, 10, 1998.

        Mrs. DiBonaventura filed, on behalf of Mr. Stamps, an Application for Permission to Appeal
to the Tennessee Supreme Court on August 10, 1998. On January 4, 1999, the Tennessee Supreme
Court denied the Application. Mrs. DiBonaventura informed Mr. Stamps on January 8, 1999 as to
the court’s denial, and she notified Mr. Stamps that she would be closing her file accordingly.

       On June 1, 1999, Mr. Stamps filed a Complaint of Legal Malpractice in the Circuit Court of
Henry County. Mr. Stamps asserted that Mrs. DiBonaventura was negligent while representing Mr.
Stamps in violation of his rights under the Tennessee Constitution, the United States Constitution,
and the Code of Ethics of the State of Tennessee Bar for Attorneys. On June 25, 1999, Mrs.
DiBonaventura filed a Motion to Dismiss for Failure to State a Claim upon which Relief can be




                                                -2-
Granted.1 On August 12, 1999, the trial court dismissed Mr. Stamps’ Complaint. The court found
that though Mr. Stamps alleged that Mrs. DiBonaventura failed to timely petition the Tennessee
Supreme Court, she took the appropriate steps to obtain an extension of time, proper pleadings were
filed, and the Tennessee Supreme Court denied review. This appeal followed.


                                             II. Standard of Review

         This case is on appeal from the trial court’s dismissal of Mr. Stamps’ suit for failure to state
a claim upon which relief can be granted. See Tenn. R. Civ. P. 12.02(6). A Rule 12.02(6) motion
to dismiss for failure to state a claim upon which relief can be granted tests only the sufficiency of
the complaint, not the strength of the plaintiff’s evidence. See Doe v. Sundquist, 2 S.W.3d 919, 922
(Tenn. 1999). The motion admits the truth of all relevant and material averments in the complaint
but asserts that such facts are insufficient to state a claim as a matter of law. See Winchester v.
Little, 996 S.W.2d 818, 821 (Tenn. Ct. App. 1998).

        In scrutinizing the complaint in the face of a Rule 12.02(6) motion to dismiss, courts should
construe the complaint liberally in favor of the plaintiff, taking all the allegations of fact therein as
true. See Stein v. Davidson Hotel, 945 S.W.2d 714, 716 (Tenn. 1997); Riggs v. Burson, 941 S.W.2d
44, 47 (Tenn. 1997). The motion should be denied “unless it appears that the plaintiff can prove no
set of facts in support of [his] claim that would entitle [him] to relief.” Stein, 945 S.W.2d at 716.
As the allegations of fact are taken as true, the issues raised on motion to dismiss are questions of
law and the scope of review is de novo with no presumption of correctness. See Tenn. R. App. P.
13(d).


                                             III. Law and Analysis

        The plaintiff bears the burden of proving all the essential elements of a legal malpractice
claim. In order to make out a prima facie claim of legal malpractice, the plaintiff must present
evidence showing that (1) the defendant attorney owed a duty to the plaintiff; (2) the attorney
breached that duty; (3) the plaintiff suffered damages; and (4) the breach proximately caused the
plaintiff’s damage. See Horton v. Hughes, 971 S.W.2d 957, 959 (Tenn. Ct. App. 1998).

        In the case at bar, the only issue we find dispositive is whether Mr. Stamps suffered damages.
A plaintiff cannot recover for a defendant’s negligence when the plaintiff suffered no injury as a
result. See Wood v. Parker, 901 S.W.2d 374, 381 (Tenn. Ct. App. 1995); Bowling v. Hamblen
County Motor, 66 S.W.2d 229, 232 (Tenn. Ct. App. 1932). Mr. Stamps points to Mrs.
DiBonaventura’s failure to notify the appellate court clerk of her change of business address and
failure to file a timely application for permission to appeal with the Tennessee Supreme Court as



        1
            See Tenn. R. Civ. P. 12.02(6).

                                                      -3-
violations of the Code of Professional Responsibility.2 Mrs. DiBonaventura’s failure to notify the
appellate court clerk of her change of business address was a factor in her failure to file a timely
application to the Tennessee Supreme Court. Nevertheless, the Court of Criminal Appeals granted
an extension of time to perfect the appeal. At that point, Mrs. DiBonaventura properly filed an
Application for Permission to Appeal with the Tennessee Supreme Court. The Tennessee Supreme
Court’s denial of the Application was unrelated to Mrs. DiBonaventura’s failure to file a timely
appeal. Mr. Stamps fails to establish that he suffered damages due to such conduct.

        It appears to this court that Mr. Stamps has attempted to base a legal malpractice claim on
facts which, if true, may constitute a violation of the Code of Professional Responsibility. Even
assuming a violation, however, Mr. Stamps cannot base his claim solely upon a violation of the
Code. See Lazy Seven Coal Sales v. Stone & Hinds, 813 S.W.2d 400, 404-05 (Tenn. 1991). Without
establishing the element of damages, Mr. Stamps cannot state a prima facie claim of legal
malpractice.


                                                   IV. Conclusion

       For the foregoing reasons, the decision of the trial court is affirmed. Costs of this appeal are
taxed against the Appellant, Stephen R. Stamps, for which execution may issue if necessary.




                                                                   ___________________________________
                                                                   ALAN E. HIGHERS, JUDGE




         2
          Specifically, Mr. Stamps refers in his b rief to Discip linary Ru les 1-102 , 6-101, a nd 7-10 1. Mr. Stamp s also
makes reference to Canon 6 and Ethical Considerations 6-1 and 6-5.
         Mr. Stamps also argues in his brief that Mrs. DiBonaventura filed a false and misleadin g affidav it with this
Court. Mrs. DiBonaventura stated in her Affidavit that Mr. Stamps’ Uniform Civil Affidavit of Indigency was filed at
the same time as the Notice of Appeal. Per the record, however, Mr. Stamps’ Affidavit was filed at the same time as
his Complaint for Leg al Malpr actice. We find the m istake in M rs. DiBon aventur a’s affidav it to be a sim ple overs ight,
and Mr. Stam ps’ argum ent to be who lly meritless.

                                                            -4-
