                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0069n.06
                           Filed: January 22, 2008

                                           No. 06-6516

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


STEVEN T. DORROUGH; JAYME                        )
DORROUGH,                                        )
                                                 ) ON APPEAL FROM THE UNITED STATES
       Plaintiffs-Appellants,                    ) DISTRICT COURT FOR THE EASTERN
                                                 ) DISTRICT OF TENNESSEE
       v.                                        )
                                                 )
T. LYNN TARPY; HAGOOD, TARPY &                   )
COX; EDWARD SHULTZ,                              )
                                                 )
       Defendants-Appellees.



       Before: KEITH and ROGERS, Circuit Judges; ALDRICH, District Judge.*

       ANN ALDRICH, District Judge. Plaintiffs-Appellants Steven and Jayme Dorrough (the

“Dorroughs”) brought a legal malpractice action under Tennessee state law against defendants-

appellees T. Lynn Tarpy, Edward Shultz, and Hagood, Tarpy & Cox, PLLC (collectively

“defendants”), who provided legal representation for the Dorroughs. The United States District

Court for the Eastern District of Tennessee granted summary judgment in favor of all defendants.

The Dorroughs now appeal the grant of summary judgment. Because the Dorroughs failed to

produce any expert affidavit establishing the applicable duty of care, the district court’s grant of

summary judgment for the defendants is affirmed.



       *
         The Honorable Ann Aldrich, United States District Judge for the Northern District of Ohio,
sitting by designation.
06-6516 Dorrough v Tarpy                                                                       Page -2-



       I. Background

       Defendants provided legal representation to the Dorroughs, who now allege that defendants’

motion practice, trial strategy, and communication of settlement offers fell below the applicable

standard of care for legal representation. The question on appeal is whether the Dorroughs

established the applicable standard of care through expert affidavits.

       The Dorroughs filed their complaint on March 4, 2005. Shultz filed his motion for summary

judgment on November 30 of that year, and Tarpy and Tarpy, Hagood & Cox filed their motion for

summary judgment on December 12, 2005. On December 22, 2005, the Dorroughs moved for an

extension of time to reply to the motions for summary judgment. The court granted the Dorroughs’

motion and stated that it would establish the deadline for their response at a scheduling conference.

After the scheduling conference on January 17, 2006, the court issued a scheduling order, which

established that all dispositive motions must be filed by July 24, 2006, that plaintiffs had to disclose

any experts by May 16, 2006, that the final pretrial conference would be held on September 25,

2006, and trial would begin on October 10, 2006. The order did not, however, specifically address

when the Dorroughs had to reply to the motions for summary judgment.

       The Dorroughs did not reply to the motions for summary judgment, nor did they request

further clarification of the deadline. On May 26, 2006, defendants filed their second motion for

summary judgment. The Dorroughs neither responded nor asked the district court for additional time

to respond. On September 12, 2006, the district court granted defendants’ motions for summary

judgment, which the Dorroughs now appeal.

       II. Discussion
06-6516 Dorrough v Tarpy                                                                      Page -3-

This court reviews the “District Court’s decision granting summary judgment de novo, using the

same standards applied by the District Court. . . . Summary judgment is proper if the evidence

submitted shows that there is no genuine issue of material fact and that the moving party is entitled

to judgment as a matter of law.” Davis v. Sodexho, 157 F.3d 460, 462 (6th Cir. 1998) (citations

omitted).

       To establish a legal malpractice claim under Tennessee law, the Dorroughs must prove:

       (1) that the accused attorney owed a duty to the plaintiff, (2) that the attorney
       breached that duty, (3) that the plaintiff suffered damages, (4) that the breach was the
       cause in fact of the plaintiff's damages, and (5) that the attorney's negligence was the
       proximate, or legal, cause of the plaintiff's damages.

Gibson v. Trant, 58 S.W.3d 103, 108 (Tenn. 2001). Further, “[i]n a legal malpractice action, expert

testimony is required to establish negligence and proximate cause unless the alleged malpractice is

within the common knowledge of laymen.” Rose v. Welch, 115 S.W.3d 478, 484 (Tenn. Ct. App.

2001). The Tennessee courts have further held that attorneys’ trial strategies and motions practice

are “beyond the common knowledge of laymen.” Hutter v. Cohen, 55 S.W.3d 571, 575 (Tenn. Ct.

App. 2001). As to communication of settlement offers, “[t]he lawyer’s standard of care, except in

the most extreme cases, should be proved using expert testimony.” Cleckner v. Dale, 719 S.W.2d

535, 540 (Tenn. Ct. App. 1986).

       Here, the Dorroughs alleged that defendants’ motion practice, trial strategy, and

communication of settlement offers fell below the applicable standard of care. Under Hutter, the

Dorroughs must produce an expert to establish the standard of care for trial strategies and motions

practice. Similarly, under Cleckner, the Dorroughs must produce an expert to establish the standard

of care for communicating settlement offers, except in the most extreme cases. The Dorroughs failed
06-6516 Dorrough v Tarpy                                                                    Page -4-

to produce any expert testimony of the applicable standards of care, and failed to allege facts

sufficient to show that the failure to communicate a settlement offer in this case was extreme enough

to render expert testimony unnecessary.

       Because the Dorroughs have failed to submit any expert affidavits to establish the standard

of care, as required under Tennessee law, there is no genuine issue of material fact and summary

judgment is appropriate. Furthermore, the Dorroughs failed to submit their list of expert witnesses

pursuant to Rule 26(a)(2) by May 16, 2006, as required by the scheduling order, and still had not

filed their list by the time the district court granted summary judgment. Even if the Dorroughs were

to locate an expert for trial, they would likely be barred from introducing testimony of that expert

at trial under Rule 37(c)(1), preventing them from establishing a prima facie case of legal

malpractice.

       Finally, the Dorroughs contend that the district court should not have ruled upon defendants’

motions for summary judgment because the Dorroughs still intended to take depositions. At best,

the Dorroughs simply misunderstood the nature of federal procedure and the weight of court orders

and deadlines. Such a misunderstanding, however, is not grounds for appellate relief.

       III. Conclusion

       For the reasons discussed above, the district court’s order granting summary judgment for

the defendants is affirmed.
