                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                                   February 23, 2001 Session

                             STANLEY F. BLACKWOOD
                                        v.
                              PATRICK F. MARTIN and
                           HARDEE, MARTIN, JAYNES & IVY

                     An Appeal from the Circuit Court for Madison County
                         No. C-98-335   Jon Kerry Blackwood, Judge



                     No. W2000-01573-COA-R3-CV - Filed January 16, 2002


        This is a legal malpractice case arising from an underlying criminal conviction. The plaintiff
prisoner was convicted on twelve counts, including one count of first degree murder. The plaintiff
sued the defendant attorneys for malpractice, alleging, inter alia, that the defendants negligently
failed to conduct a thorough investigation and that, after the plaintiff terminated the defendants’
services, the defendants improperly retained a portion of the retainer fee paid by the plaintiff for
post-trial representation. The defendant attorneys filed a motion to dismiss and/or for summary
judgment. The plaintiff then filed a motion seeking the appointment of a court-appointed expert,
which was denied. The trial court subsequently granted the defendants’ motion for summary
judgment. The plaintiff now appeals. We affirm, finding that the trial court did not abuse its
discretion in declining to appoint an expert and did not err in granting the defendants’ motion for
summary judgment.

                 Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

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

Stanley F. Blackwood, Pro se.
.
Marty R. Phillips and Dale Conder, Jr., Jackson, Tennessee, for the defendant/appellees Patrick F.
Martin and Hardee, Martin, Jaynes & Ivy.


                                   MEMORANDUM OPINION1


       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee states:
                                                                                          (con tinued...)
        This is a legal malpractice case. On October 17, 1997, Plaintiff/Appellant Stanley F.
Blackwood (“Blackwood”) was convicted on one count of first-degree murder, three counts of
attempted murder, five counts of aggravated assault, two counts of reckless endangerment, and one
count of aggravated burglary, arising from the death of Bonnie Massengill on May 28, 1996.
Defendant/appellee Patrick F. Martin (“Martin”) represented Blackwood at his criminal trial.
Blackwood was convicted on all twelve counts. Blackwood then retained Martin to represent him
during the post-trial stage, paying Martin’s law firm, Martin and Hardee, Martin, Jaynes & Ivy (“the
firm,” collectively “the defendants”), a retainer fee of $7500. However, Blackwood subsequently
terminated Martin.

        On October 19, 1998, Blackwood filed a lawsuit against Martin and the firm for legal
malpractice, alleging, inter alia, that his conviction resulted not from his guilt but rather from
Martin’s negligence. Blackwood alleged, inter alia, that Martin was negligent by failing to
thoroughly investigate the facts and law of the case; failing to obtain a sufficient number of
witnesses or experts; failing to depose certain witnesses; failing to ask sufficient questions or object
to certain improper actions and questions of the prosecutor; and by failing to make certain arguments
or present certain evidence in Blackwood’s defense during the criminal trial. Blackwood also
alleged that Martin violated nine disciplinary rules of the Tennessee Code of Professional
Responsibility and that he improperly retained a portion of the retainer fee after Blackwood had
terminated him.

        On January 19, 1999, the defendants filed a motion to dismiss and/or for summary judgment,
supported by a memorandum of law, as well as Martin’s affidavit. In the motion, the defendants
asserted that Blackwood failed to state a claim for legal malpractice, maintaining that the alleged
violations of the Code of Professional Responsibility did not create a private cause of action for
damages and that the alleged deficiencies at trial all related to trial tactics, presentation of evidence,
or the manner in which Martin honestly choose to present the case. The defendants further asserted
that their retention of a portion of the retainer fee paid by Blackwood was not improper because the
agreement between the parties did not provide for the refund of any portion of the retainer. In his
affidavit in support of the motion, Martin averred that he conformed to the standard required of
criminal attorneys in his representation of Blackwood and in the tactical decisions made at trial.
With regard to Blackwood’s allegation that he violated several disciplinary rules, Martin stated that
Blackwood filed a similar complaint with the Board of Professional Responsibility, and it was
dismissed.



        1
            (...continued)
        This Court, with the concurrence of all judges participating in the case, may affirm,
        reverse or modify the actions of the trial court by memorandum opinion when a
        formal opinion would have no precedential value. When a case is decided by
        memorandum opinion it shall be designated “MEMORANDUM OPINION”, shall
        not be published, and shall not be cited or relied on for any reason in any unrelated
        case.

                                                   -2-
         Blackwood subsequently filed two separate motions for an extension of time to respond to
the defendants’ motion for summary judgment and in order to secure an expert. The trial court
granted both motions. On May 3, 1999, Blackwood filed his response to the defendants’ motion to
dismiss and/or summary judgment, supported by a memorandum of law. In addition, Blackwood
filed his own affidavit, as well as the affidavits of various family members, asserting that Martin had
violated the standard of care. Blackwood filed various other motions, including a motion to strike
Martin’s affidavit and a motion to have certain issues referred to a special master. After
unsuccessful attempts to secure an expert, Blackwood later filed a motion requesting the trial court
to appoint an expert witness to assist him and the court in determining the applicable standard of
care.

        In December 1999, the case was reassigned to Judge Jon Kerry Blackwood. In May 2000,
the defendants filed a supplemental motion to dismiss and/or for summary judgment. Plaintiff
Blackwood later filed a motion for a stay of the proceedings, asserting, inter alia, that despite his
efforts he had been unable to secure legal representation or expert testimony. A hearing on the
various motions was held on May 24, 2000. In a series of orders entered on June 5, 2000, the trial
court denied Blackwood’s motions for appointment of a court-appointed expert, reference to a
special master, to strike Martin’s affidavit, as well as the motion to stay proceedings. The trial court
granted the defendants’ motion to dismiss and/or for summary judgment.2 Blackwood now appeals.

        On appeal, Blackwood first argues that the trial court erred in granting the defendants’
motion to dismiss and/or for summary judgment. He contends that there were genuine issues of
material fact as to whether the defendants improperly retained a portion of the retainer fee and as to
whether Martin’s alleged deficiencies at trial amounted to legal malpractice. Blackwood next
argues that the trial court erred in denying his motions for a court-appointed expert, reference to a
special master, and a stay of proceedings, considering the complexity of the legal issues involved
and his position as an incarcerated, indigent litigant. He maintains that, as a prisoner, his ability to
obtain the required expert testimony is hampered, placing him in a disadvantaged position and
preventing him from effectively litigating his case. Consequently, he asserts that a stay of
proceedings or the appointment of an expert or special master was justified. Blackwood also argues
that the trial court erred in not disallowing Martin’s affidavit. Last, Blackwood argues that the trial
court judge erred in not disqualifying himself based on the fact that the trial judge, Jon Kerry
Blackwood, and Plaintiff/Appellant Stanley Blackwood are second cousins.

        Expert testimony is required in a legal malpractice action involving the standard of care and
alleged breach of the standard of care. Lazy Seven Coal Sales, Inc. v. Stone & Hines, P.C., 813
S.W.2d 400, 406 (Tenn. 1991). The decision of whether or not to stay civil proceedings for a
prisoner is within the discretion of the trial court. Logan v. Winstead, 23 S.W.3d 297 (Tenn. 2000).
Similarly, the decision whether to appoint an expert witness or a special master is also within the
discretion of the trial court. See Tenn. R. App. P. 53; Tenn. R. Evid. 706. Moreover, the trial court
is afforded discretion to determine the “admissibility, qualifications, relevancy and competency of


       2
           The trial court also gran ted variou s other motion s that are not at issue in this appeal.

                                                             -3-
expert testimony.” McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263 (Tenn. 1997). The trial
court’s rulings in this regard will be upheld except upon a showing of an abuse of this discretion. Id.
at 263-64.

        In this case, there is no indication that the trial court abused its discretion in denying
Blackwood’s motion to strike Martin’s affidavit and Blackwood’s motion for reference to a special
master. Likewise, there is no indication that the trial court abused its discretion in denying
Blackwood’s motion for an appointed expert on legal malpractice. Since Blackwood failed to
present expert testimony that Martin breached the applicable standard of care, the trial court’s grant
of the defendants’ motion for summary judgment was not in error.3

        Blackwood argues that the trial judge erred in not disqualifying himself based on the fact that
plaintiff Blackwood and the trial judge are second cousins. However, Blackwood failed to raise the
issue of the judge’s impartiality before appeal. Consequently, the issue is waived on appeal. See
Davis v. Tennessee Dept. of Employment Sec., 23 S.W.3d 304, 313 (Tenn. Ct. App. 1999).

      The decision of the trial court is affirmed. Costs are taxed to the appellant, Stanley F.
Blackwood and his surety, for which execution may issue of necessary.




                                                                   ___________________________________
                                                                   HOLLY KIRBY LILLARD, JUDGE




         3
           Appellee argues that plaintiff Blackw ood ’s claim shou ld be dismissed because he has not demonstrated that
he has o btained post-co nviction relief. See Gibson v. Trant, 58 S.W.3d 103 (Ten n. 2001). Ho wever, if Blackwood ’s
petition for post-co nviction relief is still pending, dismissal is not ap propriate until his petition is denied. Id. at 117.
The record on ap peal do es not address this.

                                                             -4-
