                 IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                     Assigned on Briefs September 24, 1999

                FREDRICK B. ZONGE v. THOMAS T. WOODALL

                     Appeal from the Circuit Court for Davidson County
                       No. 96C-2269 Thomas W. Brothers, Judge



                    No. M1998-00800-COA-R3-CV - Filed October 5, 2000


Appellant, a pro se prisoner, brought this legal malpractice action against the appointed appellate
counsel in his criminal case. Appellant argued that his conviction would have been reversed but for
Appellee's failure to assert in his criminal appeal that the trial court committed reversible error by
forcing Appellant to attend trial in prison garb. That argument was made in a supplemental brief
filed by Appellant's new appellate counsel and was rejected by the Court of Criminal Appeals. The
trial court in this malpractice action granted Appellee's motion for summary judgment. We affirm
because Appellant has failed to establish a breach of the standard of care or that he was damaged by
counsel's decision not to make an argument which was, in fact, made by new counsel and was
unsuccessful.

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

PATRICIA J. COTTRELL , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.
and WILLIAM C. KOCH , JR. J., joined.

Fredrick B. Zonge, Pro Se, Appellant.

Winston S. Evans, Samuel D. Payne, Nashville, Tennessee, for the Appellee, Thomas T. Woodall.

                                             OPINION

       On June 17, 1996, Fredrick Zonge, a pro se prisoner, brought this action against the appellate
counsel in his criminal case, Thomas T. Woodall. Mr. Zonge's complaint asserted that his
conviction would have been reversed but for counsel's failure to argue on appeal that the trial court
committed reversible error by forcing Mr. Zonge to attend trial in his prison uniform. Mr. Woodall
successfully moved for summary judgment. We affirm.

       After a jury trial, Mr. Zonge was convicted of especially aggravated kidnapping, especially
aggravated burglary, aggravated assault, and theft of property valued at over $1,000. See State v.
Zonge, 973 S.W.2d 250, 252 (Tenn. Crim. App. 1997). The evidence at trial showed that Mr. Zonge
was in the process of burglarizing his former employer's home when he was discovered by the former
employer's roommate. Mr. Zonge used a weapon to confine the roommate and ultimately beat her
with it when she attempted to resist him with a shotgun. The former employer returned home in
time to apprehend the fleeing Mr. Zonge, who was arrested and taken into custody. All of the
property taken was recovered. After waiving his Miranda rights, Mr. Zonge confessed to breaking
into the residence to get some things to sell for cash. See id. at 253. He also admitted that a struggle
ensued when he saw the roommate with the shotgun.

        At trial, Mr. Zonge represented himself. See id. at 257. Although Mr. Zonge's original trial
date was Friday, February 18, 1994, his trial was delayed because another case on the docket took
longer than expected. Pursuant to court policy, Mr. Zonge's case was rotated forward to the next
available day, Tuesday, February 22.1

        After making several preliminary motions, including a motion for continuance, Mr. Zonge
informed the court that he had not been given the opportunity to change from his prison uniform to
civilian garb. See id. at 256. According to the Court of Criminal Appeals,

        [Mr. Zonge] explained that his trial was originally scheduled to be held four days
        earlier and said that he had made arrangements for his brother to meet him with his
        clothes on that date. The defendant complained that he was not notified that his case
        had been continued. He said that he did not have any other clothes at the prison
        because the prison only allows inmates to keep articles for thirty days. He said that
        his brother would have had to travel around 250 miles to deliver him clothes and
        explained that his brother could not visit him at prison because he was not on the
        visitation list. He said that he did not put any family members on his visitation list
        because he did not want them to see him there.

Id.

         The trial court in Mr. Zonge’s criminal case responded that there had been no way to notify
the defendant of his new court date and that it had assumed that if the defendant was prepared to go
to trial on the original trial date that he would also be prepared four days later. See id. The trial then
commenced, and the jury returned a guilty verdict on each count. Mr. Zonge was sentenced as a
Range II multiple offender to thirty-five years, fifteen years, eight years, and five years, respectively,
to be served concurrently to one another but consecutively to a prior unserved sentence. Mr. Zonge
was also fined $25,000 for the especially aggravated kidnapping, $15,000 for the especially
aggravated burglary, $5,000 for the aggravated assault, and $2,500 for the theft over $1,000.




        1
            Because Mond ay, February 2 1, was Pre sident's Day, a state holiday, the trial was sched uled for the ne xt day.



                                                             -2-
         Mr. Woodall, a contract appellate defender with the Tennessee District Public Defenders
Conference, was assigned to represent Mr. Zonge in his criminal appeal. Mr. Zonge wanted Mr.
Woodall to argue on appeal that the trial court violated due process by requiring Mr. Zonge to attend
trial in his prison garb. Mr. Woodall declined to assert that argument in the appellate brief he filed.
See id. at 252 n. 1. Mr. Woodall reasoned that:

       it was my opinion asserting the "prison garb" defense as error on appeal would be
       unwise. It seemed to me that this defense was weak because Mr. Zonge apparently
       had had ample opportunity and notice to have his civilian clothes available at the
       time of this trial. I was afraid that asserting this defense would detract from and
       weaken the other arguments which I chose to assert on appeal . . . In my opinion, my
       decision not to assert the "prison garb" defense was a wise decision. It was a matter
       of litigation strategy and was not improper or negligent in any way.

       This disagreement is the primary basis for the legal malpractice action presently before this
court. Mr. Zonge filed the underlying action in the circuit court of Davidson County on June 17,
1997, seeking $500,000 in damages. Mr. Zonge alleged that Mr. Woodall:

       ignored the only issue that would have given the Plaintiff a new and fair trial. . . .
       This has caused the Plaintiff to suffer great mental distress by subjecting him to serve
       a thirty-five (35) year sentence that was obtained through a trial that can by no means
       be considered fair. . . . The issue that was not presented by the Defendant is: "The
       defendant was forced to proceed as pro se counsel while clothed in prison garb over
       objection."

        Mr. Woodall was permitted to withdraw as counsel for Mr. Zonge in his criminal appeal six
months after the underlying malpractice action was filed. Mr. Zonge then was represented by
another attorney, who filed a supplemental brief in which he asserted the "prison garb" defense as
error on appeal. See id.

       After the underlying action commenced, Mr. Woodall filed a motion for stay and for
extension of time. He sought a stay until the Tennessee Court of Criminal Appeals ruled on Mr.
Zonge’s criminal appeal, arguing that if the appeal was successful, the malpractice claim would
become moot.

        On October 9, 1997, the Court of Criminal Appeals issued its opinion on Mr. Zonge’s
criminal appeal. It specifically considered and rejected Mr. Zonge’s “prison garb” defense. See id.
at 257. The court affirmed the conviction on all counts except that of especially aggravated burglary,
which was reduced to aggravated burglary on sufficiency of evidence grounds, and the sentence on
that count was modified.2



       2
           The sufficien cy of the evide nce issue was a sserted in the o riginal brief.

                                                              -3-
        Mr. Zonge later raised the "prison garb" defense in a petition for habeas corpus, but the
petition was rejected on procedural grounds. See Zonge v. State, No. 03C01-9903-CR-00094, 1999
WL 1191542 at *2 (Tenn. Crim. App. Dec. 16, 1999) (perm app. denied June 26, 2000).

        In addition, Mr. Zonge filed an action in the United States District Court for the Middle
District of Tennessee alleging that Mr. Woodall "botched his appeal and denied him the effective
assistance of counsel."3 That action was dismissed as frivolous on a finding that the absence of
evidence that Mr. Zonge's criminal conviction had been reversed precluded his argument.

        After the Court of Criminal Appeals issued its opinion in the criminal case, Mr. Woodall
moved for summary judgment in the malpractice case, arguing, inter alia, that a prerequisite for a
legal malpractice action by a criminal defendant against criminal defense counsel is proof of
innocence, which Mr. Zonge could not provide. In addition, Mr. Woodall argued that the decision
not to assert the "prison garb" defense was a matter of litigation strategy, for which attorneys cannot
be held liable. The trial court summarily granted Mr. Woodall's motion on December 4, 1998, and
this appeal ensued.

                                                           I.

         Because Mr. Zonge is challenging the entry of summary judgment, which involved only
questions of law, we review the decision of the trial court de novo with no presumption of
correctness on appeal. See Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997); Bain v.
Wells, 936 S.W.2d 618, 622 (Tenn. 1997). We must consider the proof in the record in the light most
favorable to the party opposing the motion. See Berry v. Whitworth, 576 S.W.2d 351, 352-53 (Tenn.
Ct. App. 1978). If, upon review, a genuine issue exists or if there is doubt as to whether such issue
exists, the summary judgment is improper and should be reversed. See Evco Corp. v. Ross, 528
S.W.2d 20, 24-25 (Tenn. 1975). However, if both the facts and the conclusions to be drawn from
the facts permit a reasonable person to reach only one conclusion, summary judgment should be
granted. See Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997); Bain, 936 S.W.2d at 622.

       In granting Mr. Woodall’s motion for summary judgment, the trial court did not indicate the
grounds upon which it based its decision. In the motion itself, a number of grounds are asserted:
Mr. Woodall did not fail to adhere to the standard of care; Mr. Woodall’s decision not to assert the
“prison garb” defense was a matter of litigation strategy, and lawyers cannot be held liable for
decisions of litigation strategy; Mr. Zonge never offered any expert testimony to establish that Mr.
Woodall failed to adhere to the applicable standard of care; the Tennessee Court of Criminal Appeals
considered and rejected the “prison garb” defense, as well as each of the other defenses which Mr.
Zonge wished to assert, and the Supreme Court of Tennessee then denied Mr. Zonge’s application
for permission to appeal; and a criminal defendant must establish his innocence as a prerequisite to
a lawsuit for professional negligence against the attorney who represented him in the criminal
proceedings, and Mr. Zonge’s conviction has been affirmed on appeal.


       3
           The co mplaint did not mention the "prison garb" issue raised in the p roceedin gs below.

                                                          -4-
       Mr. Woodall asserts that summary judgment can be sustained based on any one of these
reasons. On the record before us, we agree that more than one basis exists for the grant of summary
judgment because Mr. Zonge has failed to establish two of the elements necessary to a successful
claim of legal malpractice.

        In Tennessee, the elements of a cause of action for legal malpractice are: (1) duty owed by
the attorney(s) to plaintiff; (2) breach of that duty; and (3) damages resulting from the breach. See
Lazy Seven Coal Sales v. Stone & Hinds, P.C., 813 S.W.2d 400, 403 (Tenn.1991); see also Sammons
v. Rotroff, 653 S.W.2d 740, 745 (Tenn.Ct.App.1983), cert. denied, 464 U.S. 860, 104 S.Ct. 186, 78
L.Ed.2d 165 (1983). Mr. Zonge bore the burden of proving all the essential elements of legal
malpractice. See Horton v. Hughes, 971 S.W.2d 957, 959 (Tenn. Ct. App. 1998).

       The plaintiff in a malpractice case must prove that the attorney’s conduct fell below
       that degree of care, skill, and diligence which is commonly possessed and exercised
       by attorneys practicing in the same jurisdiction. In addition, the plaintiff must
       demonstrate a nexus between the negligence and the injury. (citations omitted.)

Sanjines v. Associates, P.C., 984 S.W.2d 907, 910 (Tenn. 1998).

                                   A. Breach of Standard of Care

        As stated above, a plaintiff in a malpractice action must demonstrate that the attorney failed
to exercise the degree of care, skill, and diligence commonly possessed and exercised by other
attorneys practicing in the same jurisdiction. Except for obvious, common sense mistakes,
establishing the applicable standard of care and determining whether a lawyer breached that standard
require expert evidence. See Horton, 971 S.W. 2d at 959.

       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.

Cleckner v. Dale, 719 S.W.2d 535, 540 (Tenn. Ct. App. 1986). The Supreme Court adopted the
reasoning and conclusion of Cleckner in Lazy Seven Coal Sales, P.C., 813 S.W.2d at 403. Further,
“[t]he 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.” Lazy Seven Coal
Sales, 813 S.W.2d at 406 (quoting Cleckner, 719 S.W.2d at 540, n. 4). “[W]hether a lawyer’s
conduct meets the applicable standards is generally believed to be beyond the common knowledge
of laypersons.” Cleckner, 719 S.W.2d at 540.

       In response to Mr. Zonge’s claim that the failure to raise the “prison garb” issue in his
appellate brief constituted malpractice, Mr. Woodall filed an affidavit stating that it was his opinion,


                                                  -5-
based on his extensive experience in criminal trial and appellate practice in the area, which was
detailed in the affidavit, that he had demonstrated “the competence and diligence normally exercised
by other lawyers in similar circumstances.” The affidavit explained Mr. Woodall’s conscious
decision not to raise the “prison garb” defense after he reviewed the transcript of the hearing on Mr.
Zonge’s motion for new trial wherein he raised that issue. Mr. Woodall considered this defense
weak, based on that transcript, and thought its inclusion in the brief would distract from or weaken
the other arguments made in the brief.

        Mr. Woodall’s affidavit in support of his summary judgment motion was sufficient to shift
the burden of going forward to Mr. Zonge. He was required to demonstrate that he would effectively
rebut the expert conclusions of Mr. Woodall either by presenting expert witnesses of his own or by
demonstrating that Mr. Woodall’s failure to include the “prison garb” issue in his appellate brief was
so plainly negligent that expert evidence was not required. See Horton, 972 S.W.2d at 960. In
response to the motion and affidavit, Mr. Zonge stated that he was not required to offer any expert
testimony to rebut the affidavit because the negligence was palpable.

        Thus, Mr. Zonge did not offer any expert evidence, and that failure eliminated any issue of
fact regarding the alleged breach of the duty of care. We do not agree that Mr. Woodall’s decision
not to raise the “prison garb” issue is the kind of common sense, obvious, or extreme mistake that
eliminates the necessity of expert testimony to establish breach of the standard of care. It is not, as
Mr. Zonge characterizes it, palpable negligence. Rather, it was a conscious choice, an exercise of
professional judgment, based upon review of the facts and experience in and knowledge of the law.

       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
       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).

Allen v. Wiseman, No. 01A01-9710-CV-00565, 1998 WL 391803 at * 2 (Tenn. Ct. App. 1998) (no
Tenn. R. App. P. 11 application filed).

        Mr. Zonge has relied upon the Woodruff case in arguing against Mr. Woodall’s assertions that
he cannot be liable for litigation strategy. Closer examination of the Woodruff opinion is, therefore,
warranted. The Woodruff court noted that in Stricklan the court found that no Tennessee cases had
recognized a cause of action for alleged negligence in the attorney’s choice of trial tactics or conduct
of the case. See Woodruff, 616 F.2d at 930. In a footnote, the Woodruff court also noted that neither
it nor counsel had found any American decision holding an attorney liable for the choice of trial
tactics or the good faith exercise of professional judgment. See Woodruff, 616 F.2d at 930 n. 1. The
court stated:


                                                  -6-
         When reviewed in light of the general Tennessee rule which holds attorneys liable
         for losses to clients for failure to exercise reasonable skill and care, Stricklan can
         only mean that there can be no liability for acts and omissions by an attorney in the
         conduct of litigation which are based on an honest exercise of professional judgment.
         This is a sound rule. Otherwise, every losing litigant would be able to sue his
         attorney if he could find another attorney who was willing to second guess the
         decisions of the first attorney with the advantage of hindsight. If this were permitted,
         as Judge Brown pointed out in the present case, the original trial would become a
         “play within a play” at the malpractice trial. To hold that an attorney may not be held
         liable for the choice of trial tactics and the conduct of a case based on professional
         judgment is not to say, however, that an attorney may not be held liable for any of his
         actions in relation to a trial. He is still bound to exercise a reasonable degree of skill
         and care in all his professional undertakings.

Id. at 930.

         In applying that holding in Woodruff, the court found that the decision of whether to present
expert testimony was “one of trial tactics or judgment as to the most effective presentation of a
client’s case” and that, in the absence of bad faith, the failure to consult an expert cannot be the basis
of liability. Id. at 932. Similarly, the attorney’s decision not to cross-examine a particular witness
but instead to rely on direct proof by his own witnesses was “clearly a tactical decision . . . which
would furnish no basis for a malpractice claim under Stricklan.” Id. at 932-33. In the issue most
directly on point, the court considered the attorney’s decision to make certain concessions on appeal,
because of his opinion that no ground existed for reversing the jury’s findings regarding one issue,
in favor of salvaging the other arguments. The court held, “We conclude that the concessions in the
appellate brief resulted from a tactical decision reached in the exercise of professional judgment and
do not furnish a basis for a malpractice action.” Id. at 933. In analyzing one issue, the court clarified
those acts which are tactical decisions:

         While the determination of whether to call a particular person as a witness at trial is
         a tactical decision involving the exercise of professional judgment, the same cannot
         be said concerning the failure to interview a potential witness brought to the attention
         of an attorney by his client. . . . [W]ithout interviewing them [the attorney] had no
         basis for determining what they would testify to, if called, or for making a judgment
         as to their effectiveness as witnesses. Failure to follow leads furnished by the client
         which, if fruitful, would supply significant support for the client’s case is not the
         same as refusing “to use the trial tactics insisted upon by the client.”4

Id. at 934.


         4
           The court distinguished the actions of the attorney in Stricklan, who took depositions of witnesses as requested
by his client, but concluded they would be of no use in trial and did not order them transcribed and filed. That decision
was charac terized as an exercise of p rofessional ju dgment an d immune from a claim of malprac tice. See id . at 934.

                                                           -7-
        The record includes Mr. Woodall’s unrefuted statements that he reviewed the trial transcript
regarding the “prison garb” issue and, exercising his professional judgment, decided not to raise that
issue, fearing it would detract from stronger arguments in Mr. Zonge’s behalf. Because Mr.
Woodall’s decision was made in the exercise of his professional judgment as a matter of strategy,
we are of the opinion that it is the type of decision which cannot form a basis for a malpractice
action.

        Even if the decision were not a strategic choice made in the exercise of professional
judgment, Mr. Zonge would have to prove, through expert testimony, that the failure to brief the
issue breached the applicable standard of care. As discussed above, Mr. Zonge has failed to provide
any such testimony and has, therefore, failed to create any dispute of material fact to withstand the
motion for summary judgment. Because the record also includes the Court of Criminal Appeals’
decision rejecting the “prison garb” argument, it is possible in this case to conclude that the decision
not to raise the issue did not fall below any standard of diligence.5

                                                 B. Cause of Damages

         As stated previously, one of the elements of legal malpractice is damages resulting from the
attorney’s neglect. See Sammons, 653 S.W.2d at 744. Mr. Zonge bore the burden of presenting
sufficient evidence to raise an issue of disputed fact on that element. See Stanley v. Joslin, 757
S.W.2d 228, 330 (Tenn. Ct. App. 1998). Here, the gravamen of the complaint is that Mr. Zonge was
damaged by Mr. Woodall’s refusal to assert the “prison garb” defense in the appellate brief in Mr.
Zonge’s criminal case.6 Assuming the damage suffered by Mr. Zonge to be his conviction and
incarceration, he must demonstrate that the decision not to raise that defense resulted in the appellate
court’s affirmance of his conviction. This he has not and cannot do because of the facts of this case
and because of the applicable law.

       According to the Court of Criminal Appeals' opinion, after Mr. Woodall resigned from his
representation of Mr. Zonge, the appellate brief Mr. Woodall filed was supplemented by Mr. Zonge's


         5
          In most malpractice actions based on the attorney’s failure to take some action, the court is unaware of what
the outcome would have been had the action been taken. Here, however, the pre cise action Mr. Zonge complains was
not taken by M r. Woo dall was later tak en by anoth er lawyer, and we are awa re of the result.

         6
           Mr. Zonge also asserts that "the heart of plaintiff's complaint is that the defendant did not brief the issue of
testimony." Like the "pr ison garb" defense, this wa s an issue raised and rejec ted in the crimin al appeal. Mr. Zonge
argued that the trial court erred by excluding his testimony that he failed to show up for work because the roommate he
attacked was sexually ha rasssing him and had arranged for him to stage the burglary and tie her and the former employer
together to their bed. See Zonge, 973 S.W.2d at 257. The trial court excluded the testimony because Mr. Zonge's offer
of proof was "without one scintilla of foundation." Id. The Court of Criminal Appeals determined that the trial court
erred in limiting Mr. Zonge's testimony but that he had waived the issue at the hearing on his motion for new trial. See
id. We no te that this ground was not asserte d in the com plaint for malp ractice herein , and we de cline to address it here.
See Simpson v. Frontier Community Credit Union, 810 S.W .2d 147 , 153 (T enn.199 1) ("It is well-settled that issues not
raised at trial cannot b e raised for the first time on app eal."); Chadwell v. Knox County, Tennessee, 980 S.W.2d 378,
384 (Tenn.Ct.App.1998). Further, the analysis of the "prison garb" defense herein applies equally to this issue.

                                                             -8-
new counsel with the following argument: "that the trial court committed reversible error by forcing
him [Mr. Zonge] to wear prison garb at his trial . . . " Zonge, 973 S.W.2d at 252 n.1. Because the
“prison garb” defense was considered and rejected in the criminal appeal, Mr. Zonge’s argument that
the initial failure to raise the issue caused his conviction to be wrongfully affirmed defies logic. The
fact that the Court of Criminal Appeals’ actually considered the issue also precludes Mr. Zonge from
factually establishing that counsel’s decision not to raise the issue caused his conviction to be
affirmed.

        As a matter of law, recovery in a malpractice case requires the showing of a nexus between
the alleged negligence and the injury alleged. Mr. Zonge had the burden of establishing at least a
dispute of material fact as to any causal connection between the affirmance of his conviction and the
conduct he alleges was negligent. The Court of Criminal Appeals described the “prison garb” issue
thusly:

        In this case, the trial court concluded that had the defendant been diligent, he could
        have secured other clothes. We agree with the trial court’s assessment. The
        defendant insisted on representing himself even though the trial court warned him
        about the perils involved in self-representation. The defendant arrived at trial
        unprepared to defend against the charges against him. He requested a continuance
        and complained that he had not had enough time to prepare his defense. It was only
        after the trial court denied his request for a continuance that the defendant objected
        to being tried in prison garb. In our view, the defendant’s appearance at trial in
        prison garb is directly attributable to his lack of preparation.

Zonge, 973 S.W.2d at 257.

        Having created the situation he later complained of, Mr. Zonge now asks us to believe that
the appellate court’s refusal to grant him a new trial was caused by his appellate counsel, who was
necessarily limited by the record in the trial court. We are of the opinion that no reasonable person
could conclude that the initial failure to raise the prison garb issue, especially in light of Mr. Zonge’s
actions in the trial court, wrongfully caused the affirmance of his conviction.

        The Court of Criminal Appeals upheld Mr. Zonge’s conviction on the basis of sufficiency
of the evidence, including testimony of eyewitnesses who knew him, testimony of the investigating
officer who found him being held by his victims immediately after the burglary and kidnapping, and
Mr. Zonge’s confession to various actions including breaking into the house to steal and ordering
the roommate around while holding a gun. Thus, the cause of Mr. Zonge’s continued incarceration
appears to be his guilt, not any action by his appellate counsel.

        Our disposition is strengthened by recent case law. We recently joined a majority of
jurisdictions in holding that:




                                                   -9-
        to state a claim for legal malpractice against private criminal defense counsel, the
        Plaintiff must assert a basis for claiming that the Plaintiff's conviction or sentence
        was caused by something other than the Plaintiff's own conduct. See generally,
        Gregory G. Sarno, Annotation, Legal Malpractice in Defense of Criminal
        Prosecution, 4 A.L.R. 5th 273-402 (1992). Specifically, the Plaintiff must plead that
        he or she has obtained appellate or post-conviction relief in order to overcome a
        motion for summary judgment or a motion to dismiss.

Gibson v. Trant, No. M1999-00390-COA-R3-CV, 2000 WL 320666 at *4 (Tenn. Ct. App. March
29, 2000) (no Tenn. R. App. P. 11 application filed). Without such an allegation, the key element
of causation cannot be sustained. See id. As we noted in Gibson:

        There is a good reason to place a greater burden on a guilty criminal defendant
        maintaining a claim of malpractice of the type involved in this case than is placed on
        a wronged civil defendant. The underpinnings of common law tort liability,
        compensation and deterrence, do not support a rule that allows recovery to one who
        is guilty of the underlying criminal charge. A person who is guilty need not be
        compensated for what happened to him as a result of his former attorney's negligence.
        There is no reason to compensate such a person, rewarding him indirectly for his
        crime. The possibility that a criminal defendant may not be guilty provides a
        sufficient, general deterrent against negligent conduct of defense counsel, without the
        need for providing tort remedy for guilty former criminal Defendants. Thus, in order
        to justify a right to recover, a Plaintiff asserting an error of the type [the plaintiff]
        asserts in this case must prove by a preponderance of the evidence, not only that the
        negligence of the attorney defendant caused him harm, but also that he is innocent
        of the crime charged.

Id. (quoting Glenn v. Aiken, 569 N.E.2d 784 (Mass.1991)). We find this reasoning compelling. 7

        In summary, we conclude that the trial court properly granted summary judgment because
Mr. Zonge failed to provide any evidence from which a reasonable person could conclude that Mr.
Woodall breached any applicable standard of care or that any actions by Mr. Woodall resulted in
injury to Mr. Zonge. As a matter of law, Mr. Woodall was entitled to summary judgment.




        7
          While this appeal was pending, Mr. Zonge filed a document styled a “Motion to Distinguish,” in which he
attempts to distinguish Gibson. We consider his Motion to be a supplemental brief, have reviewed his arguments, and
find them unpersuasive.

                                                       -10-
                                                  II.

       Mr. Zonge framed an additional issue on appeal as follows:

       The circuit court erred in granting summary judgment, since no cause of action for
       a legal malpractice claim had accrued against the defendant at the time the complaint
       was filed, the circuit court lacked jurisdiction of the subject matter.

        Mr. Zonge argues that the trial court lacked jurisdiction over his case, and asks this court to
declare the trial court's judgment void. Mr. Zonge maintains that because his cause of action did not
accrue until the Supreme Court denied permission to appeal his conviction, he had no cognizable
injury until that point, "which left the circuit court without jurisdiction to enter judgment."

        As of the date of the filing of his complaint, neither the Court of Criminal Appeals nor the
Supreme Court had ruled on Mr. Zonge’s appeal of his criminal conviction. Because he was
necessarily unable, therefore, to allege or show the causation of damage element of a malpractice
cause of action, his lawsuit was subject to dismissal at that time. However, by the time the court
rendered judgment, both the Court of Criminal Appeals and the Supreme Court had acted on his
appeal.

        For subject matter jurisdiction purposes, a circuit court "is a court of general jurisdiction,
and the judge thereof shall administer right and justice according to law, in all cases where the
jurisdiction is not conferred upon another tribunal." Tenn. Code Ann. § 16-10-101 (1994). The
circuit courts of Tennessee have original jurisdiction so long as the jurisdiction has not been
conveyed to another court. See Staples v. Brown, 113 Tenn. 639, 644, 85 S.W. 254, 255
(Tenn.1905). Having considered the record, we find the circuit court properly exercised jurisdiction
over this action. The fact that Mr. Zonge was admittedly unable to allege or present evidence, at the
time of filing, of all the elements of his case, i.e., that there was damage arising from the alleged
malpractice, did not affect the circuit court's jurisdiction. A plaintiff’s failure to state a claim for
relief generally does not deprive a court of jurisdiction. Further, by staying the action pending
rulings by the appellate courts, the trial court provided a procedural opportunity for the elements of
the cause of action to accrue. The fact that the substance of those rulings eliminated an element
necessary to a cause of action for malpractice in no way affects the trial court’s jurisdiction.

                                                  III.

       Accordingly, we affirm the trial court's decision to grant Mr. Woodall's motion for summary
judgment. Mr. Zonge’s motion to distinguish is dismissed as moot. The costs of this appeal are to
be taxed against Mr. Zonge, for which execution may issue if necessary.


                                                         ___________________________________
                                                         PATRICIA J. COTTRELL, JUDGE


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