                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                          May 6, 2009

                    JOSEPH C. BARNA v. W. MARTIN SEILER

                   Appeal from the Circuit Court for Davidson County
                        No. 06C-996 Walter C. Kurtz, Judge


                  No. M2008-01573-COA-R3-CV - Filed April 19, 2011




F RANK G. C LEMENT, J R., J., dissenting.

        I respectfully disagree with the majority’s conclusion that the movant, attorney Martin
Seiler, shifted the burden of persuasion to the plaintiff Joseph Barna for purposes of
summary judgment. Admittedly, Mr. Barna did not refute the affidavit of Mr. Seiler, but I
submit he did not have to because Mr. Barna was not obliged to come forward with
countervailing evidence to create a dispute of fact. This is due to the fact that Mr. Seiler
failed to provide a sufficient affidavit or other proof. Specifically, Mr. Seiler’s affidavit,
which is the only evidence to support his motion for summary judgment, is insufficient
because he failed to provide any specific material fact for this court to consider that pertains
to the legal services he actually rendered. Mr. Seiler only informed us of the fact that he has
many years of experience as a lawyer in the field of security litigation, which is a relevant
and material fact, but by itself is insufficient to refute the specific allegations in the complaint
as to what Mr. Seiler failed to do in his representation of Mr. Barna.

       In the Complaint, Mr. Barna specifically alleged, inter alia:

       a. [Mr. Seiler] failed to revise the statement of claim. Plaintiff requested that
       the Defendant prepare a new and corrected statement of claim.
       b. He failed to properly calculate the damages and to present the damages
       properly at the hearing. Plaintiff’s request [sic] to the Defendant to prepare a
       proper and corrected calculation of damages.
       c. He failed to obtain an expert witness for the hearing.
       d. He failed to recognize which securities were marginable [sic] and which
       were not.
       e. He failed to inform the Plaintiff of the offer made by Waterhouse in a timely
       manner.
       f. He failed to recognize the difference between a house call and an exchange
       call.
       ...
       h. He failed to take reasonable steps to obtain the presence of all the persons
       needed as witnesses at the hearing.
       j. He failed to present at the hearing that Waterhouse had not followed NY
       Stock Exchange rules and its own rules in connection with the Grossover
       extension of credit.
       ...

       In his affidavit Mr. Seiler provided very few facts; he merely states:

       All legal services I provided to Mr. Barna were given in accordance with the
       standard of acceptable legal professional practice and with the degree of skill,
       care, diligence, learning, and experience ordinarily used, possessed, and
       practiced by other attorneys skilled in securities law and in arbitration related
       to securities law and in arbitration related to securities law in the State of
       Tennessee on or about the times material herein.

        He goes on to state that in his opinion, that nothing he did or did not do with respect
to the legal services he provided to Mr. Barna caused the losses his client suffered in the
arbitration proceeding. But what did he do? We have no way of knowing.

       I fully concur with the majority that affidavits of defendant professionals are sufficient
to support a motion for summary judgment and to shift the burden to the plaintiff to come
forward with competent expert proof showing there is a dispute. Miller v. Birdwell, 327
S.W.3d 53, 60 (Tenn. Ct. App. 2010) (“It is well established that the affidavits of the
defendant physicians are sufficient by themselves to support a motion for summary
judgment.”) (citing Kenyon v. Handal, 122 S.W.3d 743 (Tenn. Ct. App. 2003)). However,
not all affidavits of defendant professionals satisfy the evidentiary requirements, one of
which is stating facts in addition to their conclusory statements.

       As the majority noted on page twelve of the opinion,

       In order to “clearly and completely” refute a plaintiff’s claims of professional
       malpractice, and thereby shift the evidentiary burden to the plaintiff in a
       summary judgment motion determination, a defendant expert’s affidavit will
       be sufficient if it: (1) establishes the affiant’s knowledge of the applicable
       standard of care; (2) demonstrates the basis for that knowledge; (3) describes,
       even briefly, the actions taken by the affiant in the course of the professional

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       services rendered to plaintiff; (4) and states the opinion that the actions met the
       standard of care, or that nothing done by affiant breached the standard of care
       . . . . (emphasis added)

       Mr. Seiler satisfied three of the four criteria above, but he did not satisfy the third
requirement; he did not describe, even briefly, the actions he took in the course of his
representation of Mr. Barna. Therefore, without any factual foundation concerning what Mr.
Seiler did nor did not do in his representation of Mr. Barna, Mr. Seiler’s opinion is merely
conclusory and, thus, insufficient for purposes of summary judgment.

        In a substantially similar legal malpractice case, ironically involving the same
plaintiff, Barna v. Preston Law Group, P.C., 2009 WL 2616038 at * 6 (Tenn. Ct. App.
2009), this court relied on Tenn. R. Evid. 702, Tenn R. Evid. 705, and Hannan v. Alltel
Publishing Co., 270 S.W.3d 1, 8 (Tenn. 2009) (holding that conclusory opinions that are not
supported by or based upon identified facts are not sufficient to shift the burden of
production to the nonmoving party) to conclude that:

       Generally, an expert witness may render an opinion based on facts or data
       known to the expert; nevertheless, the expert who testifies in terms of opinion
       may be required to disclose the underlying facts. Tenn. R. Evid. 702, 705. For
       purposes of shifting the burden of proof in a motion for summary judgment, an
       expert’s conclusory affidavit neither negates an essential element of a claim
       nor does it establish an affirmative defense. See Hannan, 270 S.W.3d at 8. In
       the context of summary judgment, our Supreme Court has stated that
       conclusory opinions that are not supported by or based upon identified facts
       are not sufficient to shift the burden of production to the nonmoving party. See
       Hannan, 270 S.W.3d at 8; see also Blanchard v. Kellum, 975 S.W.2d 522, 525
       (Tenn.1998) (reversing summary judgment because the defendant’s conclusory
       affidavit did not trigger the plaintiff’s burden in the motion for summary
       judgment). Therefore, we find that Mr. Preston’s conclusory “opinions”
       regarding Mr. Barna’s case against Firstrade and the causation of Mr. Barna’s
       damages, without providing supporting facts, were insufficient to negate an
       essential element of Mr. Barna’s legal malpractice claim – damages or
       causation – and shift the burden of production. (Emphasis added).

Barna, 2009 WL 2616038 at * 6.

      I, therefore, submit that because Mr. Seiler’s affidavit fails to provide for our
consideration any specific and material facts to support his conclusions that his services,
whatever they were, complied with the standard of care and caused no damage to Mr. Barna.

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For these reasons, I respectfully dissent.


                                             ______________________________
                                             FRANK G. CLEMENT, JR., JUDGE




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