                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                    Submitted on Briefs November 2, 2002 Session


              CHARLES MONTAGUE v. MICHAEL D. KELLUM

                   Appeal from the Circuit Court for Washington County
                            No. 7877    Jean A. Stanley, Judge

                                FILED NOVEMBER 22, 2002

                                No. E2002-01733-COA-R3-CV



This legal malpractice claim arises from the filing by attorney Michael D. Kellum (“Defendant”) of
an unverified post-conviction petition on behalf of Charles Montague (“Plaintiff”). The post-
conviction petition was dismissed by the Criminal Court on the merits and because it was not
verified. We vacated a previous grant of summary judgment to Defendant to allow Plaintiff time to
conduct discovery. While on remand and during discovery, the Court of Criminal Appeals affirmed
the dismissal of Plaintiff’s post-conviction proceeding for the sole reason that the petition was
unverified. Thereafter, the Trial Court again dismissed this lawsuit after concluding, inter alia,
Plaintiff had suffered no damages. We vacate and remand.


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


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HOUSTON M. GODDARD , P.J.,
and HERSCHEL P. FRANKS , J., joined.


Charles Montague, pro se Appellant, Mountain City, Tennessee.


James A. Nidiffer, Johnson City, Tennessee, for the Appellee Michael D. Kellum.
                                             OPINION

                                            Background

                This is the second occasion we have had the opportunity to review the dismissal of
Plaintiff’s legal malpractice claim. We addressed the facts in our opinion in the first appeal, from
which we quote as follows:

                       This appeal results from the Trial Court's granting summary
               judgment to Defendant. Plaintiff, who is incarcerated, filed a
               Complaint alleging legal malpractice stemming from Defendant's
               representation of him in a post-conviction proceeding. Plaintiff
               alleges a number of bases for his claim, including that Defendant,
               who was court-appointed, failed to follow the mandate of Tenn. Code
               Ann. § 40-30-204(e), which requires that a post-conviction petition
               or amended petition be verified under oath. By the time Defendant
               was appointed as counsel, Plaintiff, acting pro se, had filed a
               post-conviction petition which did not comply with Tenn. Code Ann.
               § 40-30-204(e), because it was not properly verified under oath.
               Defendant filed an Amended Petition ("Amended Petition") on behalf
               of Plaintiff which also failed to comply with Tenn. Code Ann. §
               40-30-204(e), because it was not verified under oath.

                       At the post-conviction hearing, the Criminal Court for
               Washington County, despite the Amended Petition's lack of statutory
               compliance, considered the grounds raised in the Amended Petition
               and dismissed Plaintiff's post-conviction claim. In its Order, the
               Criminal Court held that the Amended Petition did not comply with
               Tenn. Code Ann. § 40-30-204, because it was not verified under oath
               and did not state facts to support allegations that would require setting
               the matter for hearing. The Criminal Court held that the petition was
               without merit.

                      Plaintiff filed his legal malpractice Complaint against
               Defendant in January 2000. Plaintiff served Defendant with Requests
               for Admission in April 2000. A few days later, Defendant filed his
               Motion to Dismiss based upon Tenn. R. Civ. P. 12(b)(6). Plaintiff
               then served Defendant with a pleading captioned "Motion for
               Production of Documents" which was essentially a Tenn. R. Civ. P.
               34 Request for Production of Documents. Next, Plaintiff filed a
               Motion for Extension of Time to respond to Defendant's Motion to
               Dismiss. Although inartfully drafted, Plaintiff outlined the as-yet
               unanswered discovery requests as the basis of his motion. . . .


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                      On the date that the Motion to Dismiss was set for hearing,
              Defendant filed a Motion for Extension of Time to respond to
              Plaintiff's discovery requests, asking that the time be extended until
              after the Trial Court decided his Motion to Dismiss. Defendant's
              response to the Requests for Admission was due a few days later.
              The Trial Court granted Defendant's Motion for Extension of Time,
              ordering that Plaintiff's discovery was stayed until after the Trial
              Court decided Defendant's Motion to Dismiss. On the same date, the
              Trial Court took under advisement Defendant's Motion to Dismiss.
              In spite of the Trial Court's order staying Plaintiff's discovery,
              Defendant, however, responded to Plaintiff's Request for Production
              of Documents in July 2000. The Requests for Admission remained
              unanswered by Defendant.

                      Before the Trial Court decided Defendant's Motion to
              Dismiss, Defendant asked the Trial Court to convert his Motion to
              Dismiss to a Motion for Summary Judgment. Defendant filed the
              affidavit of a local attorney in support of his Motion for Summary
              Judgment. The affidavit stated that it was the local attorney's opinion
              that Defendant did not deviate from the applicable standard of care
              for attorneys practicing within the local community. Defendant, in
              his Tenn. R. Civ. P. 56.03 Statement of Undisputed Facts, does not
              admit outright that he failed to prepare properly the Amended Petition
              but, instead, states that the trial court dismissed the Amended
              Petition, in part, because it was not properly sworn to.

                       The Trial Court granted Defendant's Motion for Summary
               Judgment. In its Order dismissing Plaintiff's legal malpractice claim,
               the Trial Court held that notwithstanding Defendant's failure to
               comply with Tenn. Code Ann. § 40-30-204(e), the Criminal Court
               found the Amended Petition to be without merit, and, therefore,
               Plaintiff suffered no damages from the Amended Petition not being
               verified under oath. The Trial Court further held that there was no
               proof that Defendant deviated from the applicable standard of care.
               Additionally, the Trial Court held that Plaintiff's Complaint was
               frivolous.…

Montague v. Kellum, No. E2000-02732-COA-R3-CV, 2001 Tenn. App. LEXIS 356 at * 1 - *6
(Tenn. Ct. App. May 17, 2001)(footnotes omitted), no appl. per. appeal filed.

              We vacated the judgment of the Trial Court and remanded the case. In so doing, we
noted we were “at a loss as to how Defendant’s undisputed failure to follow the clear requirement
of Tenn. Code Ann. § 40-3-204(e) . . . does not constitute a failure to comply with the applicable


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standard of care.” Montague v. Kellum, 2001 Tenn. App. LEXIS 356 at * 12. We, therefore,
concluded at a minimum a genuine issue of material fact existed as to whether Defendant deviated
from the applicable standard of care. We then observed there was no dispute from the record then
before us that the possible violation of the applicable standard of care resulted in no damages to
Plaintiff. Montague v. Kellum, 2001 Tenn. App. LEXIS 356 at * 13, *14. We went on to state:

               Other than that possible violation, the record contains no proof that
               Defendant deviated in [any] other way from the applicable standard
               of care.

                       Our inquiry, however, cannot end with our review of the Trial
               Court's granting of Defendant's Motion for Summary Judgment based
               upon the record then before it. If that were the only issue on appeal,
               we would affirm the Trial Court. See Tenn. R. Civ. P. 56.04;
               Madison v. Love, 2000 WL 1036362, at *2. On appeal, Plaintiff also
               questions the Trial Court's order that completely blocked Plaintiff's
               attempts at discovery before it ruled on Defendant's Motion to
               Dismiss/Motion for Summary Judgment. We agree with Plaintiff that
               the Trial Court erred in prohibiting Plaintiff's discovery in this matter
               before it ruled on Defendant's motion and, we, therefore, vacate the
               Trial Court's grant of summary judgment.

Montague v. Kellum, 2001 Tenn. App. LEXIS 356 at * 14.

               After the case was remanded to the Trial Court and while the parties were conducting
discovery, on September 4, 2001, the Court of Criminal Appeals issued its opinion in Montague v.
State, No. E2000-01330-CCA-R3-PC, 2001 Tenn. Crim. App. LEXIS 692 (Tenn. Crim. App. Sept.
4, 2001), no appl. perm. appeal filed, which was the appeal of the dismissal of Plaintiff’s post-
conviction petition. In its order dismissing this lawsuit for the second time, the Trial Court discussed
the opinion of the Court of Criminal Appeals and correctly noted:

                       The Court of Criminal Appeals concluded that the post-
               conviction court (that is the Criminal Court for Washington County)
               was correct in summarily dismissing Mr. Montague’s post-conviction
               relief petition for failing to be properly verified under oath. The
               Court of Criminal Appeals did not address the merits or otherwise
               comment on the other six findings in [the Criminal Court’s] … Order
               of February 9, 1999.

                On July 3, 2002, the Trial Court once again dismissed Plaintiff’s malpractice lawsuit.
In so doing, the Trial Court relied in part on the opinion of our Supreme Court in Gibson v. Trant,
58 S.W.3d 103 (Tenn. 2001), which held that a criminal defendant must obtain post-conviction relief
in order to maintain a legal malpractice action against his defense lawyer. Because Plaintiff did not


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obtain post-conviction relief, and further relying on our earlier Opinion to the effect that Plaintiff had
not proven any damages, the Trial Court determined Defendant’s motion to dismiss should be
granted. This appeal followed.

                                                      Discussion

               Since matters outside the pleadings were considered by the Trial Court when it
granted Defendant’s motion to dismiss, we will treat Defendant’s motion as a motion for summary
judgment in accordance with Rule 12.02.1 The standard for review of a motion for summary
judgment is set forth in Staples v. CBL & Associates, Inc., 15 S.W.3d 83 (Tenn. 2000):

                          The standards governing an appellate court’s review of a
                  motion for summary judgment are well settled. Since our inquiry
                  involves purely a question of law, no presumption of correctness
                  attaches to the lower court’s judgment, and our task is confined to
                  reviewing the record to determine whether the requirements of Tenn.
                  R. Civ. P. 56 have been met. See Hunter v. Brown, 955 S.W.2d 49,
                  50-51 (Tenn. 1997); Cowden v. Sovran Bank/Central South, 816
                  S.W.2d 741, 744 (Tenn. 1991). Tennessee Rule of Civil Procedure
                  56.04 provides that summary judgment is appropriate where: (1) there
                  is no genuine issue with regard to the material facts relevant to the
                  claim or defense contained in the motion, see Byrd v. Hall, 847
                  S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is entitled
                  to a judgment as a matter of law on the undisputed facts. See
                  Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn.
                  1993). The moving party has the burden of proving that its motion
                  satisfies these requirements. See Downen v. Allstate Ins. Co., 811
                  S.W.2d 523, 524 (Tenn. 1991). When the party seeking summary
                  judgment makes a properly supported motion, the burden shifts to the
                  nonmoving party to set forth specific facts establishing the existence
                  of disputed, material facts which must be resolved by the trier of fact.
                  See Byrd v. Hall, 847 S.W.2d at 215.

                          To properly support its motion, the moving party must either
                   affirmatively negate an essential element of the non-moving party’s
                   claim or conclusively establish an affirmative defense. See McCarley
                   v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998);

         1
            In relevant part, Rule 12.02 provides that if, “on a motion asserting the defense numbered (6) to dismiss for
failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded
by the court, the motion shall be treated as one for sum mary judgm ent and dispo sed o f as pro vided in Rule 5 6, and all
parties shall be given re asonable o ppo rtunity to present all material mad e pertinent to such a m otion by Rule 56.”




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                Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). If the moving
                party fails to negate a claimed basis for the suit, the non-moving
                party’s burden to produce evidence establishing the existence of a
                genuine issue for trial is not triggered and the motion for summary
                judgment must fail. See McCarley v. West Quality Food Serv., 960
                S.W.2d at 588; Robinson v. Omer, 952 S.W.2d at 426. If the moving
                party successfully negates a claimed basis for the action, the non-
                moving party may not simply rest upon the pleadings, but must offer
                proof to establish the existence of the essential elements of the claim.

                        The standards governing the assessment of evidence in the
                summary judgment context are also well established. Courts must
                view the evidence in the light most favorable to the nonmoving party
                and must also draw all reasonable inferences in the nonmoving
                party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v.
                Hall, 847 S.W.2d at 210-11. Courts should grant a summary
                judgment only when both the facts and the inferences to be drawn
                from the facts permit a reasonable person to reach only one
                conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.
                1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Staples, 15 S.W.3d at 88-89. A fact is “material” for summary judgment purposes, if it “must be
decided in order to resolve the substantive claim or defense at which the motion is directed.” Luther
v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999)(quoting Byrd v. Hall, 847 S.W.2d at 211).

                In order to make out a prima facie legal malpractice claim, a plaintiff must show: (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.
See Gibson v. Trant, 58 S.W.3d 103, 108 (Tenn. 2001). One of the reasons the Trial Court dismissed
this lawsuit was because it concluded Plaintiff could not prove he was damaged by Defendant’s
claimed malpractice. In other words, the Trial Court held Defendant had negated an essential
element of Plaintiff’s claim, i.e., that Plaintiff had suffered damages as a result of Defendant’s
alleged malpractice.

               As previously indicated, and unfortunately so for Defendant, after we issued our first
Opinion and while this case was on remand, the dismissal of Plaintiff’s post-conviction petition was
appealed to the Court of Criminal Appeals. The Court of Criminal Appeals declined to address the
merits of the post-conviction petition and affirmed the Criminal Court’s dismissal of the post-
conviction petition “for failing to be properly verified under oath.” Montague v. State, No. E2000-
01330-CCA-R3-PC, 2001 Tenn. Crim. App. LEXIS 692 at *1 (Tenn. Crim. App. Sept. 4, 2001).
Therefore, because Defendant did not file a verified post-conviction petition, Plaintiff did not have
appellate review by the Court of Criminal Appeals of the dismissal of the petition on the merits as


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raised in the petition. The question in our review of this grant of summary judgment then becomes
whether or not Defendant successfully negated that essential element, i.e. damages, of Plaintiff’s
claim. A fact that now must be considered in arriving at this resolution is the decision by the Court
of Criminal Appeals to affirm the Criminal Court’s dismissal of the post-conviction petition “for
failing to be properly verified under oath.” In short, the Court of Criminal Appeals never addressed,
and it had no need to address, the merits of the post-conviction petition. The Trial Court
acknowledged this fact in its discussion of the Court of Criminal Appeals’ Opinion. This decision
by the Court of Criminal Appeals was not a part of the record before us in the first appeal.

               We believe the outcome of this appeal is determined by the Supreme Court’s opinion
in Gibson v. Trant, 58 S.W.3d 103 (Tenn. 2001), which held that a criminal defendant must obtain
post-conviction relief in order to maintain a legal malpractice action against his defense lawyer. In
so doing, the Gibson Court agreed with the “large majority of courts . . . [which have] held that some
form of exoneration is a precondition to maintaining a criminal malpractice claim. A plaintiff must
meet this exoneration requirement before he can sue his defense lawyer.” Gibson, 58 S.W.3d at 108.
The Court set forth numerous policy reasons to support its conclusion. The Court observed that
criminal convictions were not designed to be tested in the civil tort arena for two reasons. First,
depending on the relief which was sought, an award of damages may necessarily imply that the
criminal courts reviewing the conviction erred. Second, the criminal justice system itself provides
adequate systems and safeguards to prevent a wrongly accused defendant from suffering undeserved
criminal penalties. Id. at 112, 113. The Court went on to add:

               The purpose of post-conviction, after all, is to prevent the wrongly
               accused and unjustly convicted from suffering undeserved criminal
               penalties, and to enforce the constitutional guarantees of a fair trial.
               Tort law cannot possibly serve these ends. It is therefore reasonable
               and fair to require criminal defendants to look to the legal process
               designed to provide redress for wrongful convictions, and then to
               respect the outcome of that process once it has concluded. As one
               court has concisely stated, "it is the public policy of this state to treat
               any person who has been convicted of any criminal offense as validly
               convicted unless and until the person's conviction has been
               reversed...." Stevens, 851 P.2d at 561.

Gibson, 58 S.W.3d at 113 (quoting Stevens v. Bispham, 316 Or. 221, 851 P.2d 556 (1993)).

               In this appeal, Plaintiff argues Gibson does not apply because Gibson addressed
alleged legal malpractice at the trial stage, whereas the present case is concerned with alleged legal
malpractice at the post-conviction stage. While we agree Gibson does not apply as easily to the
present case because we are confronted with alleged malpractice at the post-conviction stage, we
nevertheless believe Gibson controls. The policy considerations expressed in Gibson are equally as
applicable no matter what stage the alleged legal malpractice occurred. Plaintiff could, and did, file
a habeas corpus proceeding in federal court challenging the validity of his conviction. In light of


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the numerous policy considerations set forth in Gibson, most, if not all, of which are equally as
compelling in this case, we hold Plaintiff must obtain exoneration either in the federal habeas corpus
proceeding or in his criminal case proceedings before he can maintain the present legal malpractice
action.

                The final issue on appeal is Plaintiff’s argument the Trial Court erred in not staying
the legal malpractice suit until resolution of his habeas corpus proceeding in federal court. We agree
with Plaintiff on this issue. In Gibson, the Court stated that if a criminal legal malpractice claim
cannot be dismissed on the pleadings or on summary judgment, the trial court “must await the
outcome of the post-conviction proceeding before deciding whether the case should go to a jury.”
Gibson, 58 S.W.3d at 117. We believe this holding in Gibson requires the Trial Court await the
outcome of any pending post conviction proceeding but not potential or possible post-conviction
proceeding yet to be filed. On remand, this case must be stayed pending resolution of the pending
federal habeas corpus proceeding. If Plaintiff obtains no exoneration in that proceeding, the present
case should be dismissed.

                                            Conclusion

                The judgment of the Trial Court is vacated, and this cause is remanded to the Trial
Court for such further proceedings as required consistent with this Opinion, and for collection of the
costs below. The costs on appeal are assessed against the Appellee, Michael D. Kellum.




                                                       ___________________________________
                                                       D. MICHAEL SWINEY, JUDGE




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