                                                                                 FILED
                 IN THE COURT OF APPEALS OF TENNESSEE July 14, 1999
                            AT KNOXVILLE            Cecil Crowson, Jr.
                                                                             Appellate C ourt
                                                                                 Clerk




WILLIAM J. LOGAN                              )      HAWKINS CIRCUIT
                                              )      (No. 5023)
      Plaintiff/Appellant                            )
                                              )      NO. 03A01-9902-CV-00057
v.                                            )
                                              )      HON. JOHN K. WILSON
HEISKELL WINSTEAD,                            )      JUDGE
                                              )
      Defendant/Appellee                      )



William J. Logan, Pro Se, Appellant
Thomas L. Kilday, Greeneville, for the Appellee.


                                      OPINION

                                                     INMAN, Senior Judge

      This is a legal malpractice action arising out of a criminal case. The plaintiff

was indicted on June 3, 1996 in the Criminal Court for Hawkins County on three

counts: (1) simple possession of cocaine, (2) possession of a controlled substance

with intent to sell, and (3) tampering with evidence. The case was tried in the

Criminal Court for Hawkins County on June 20, 1996 and plaintiff was convicted

of the two drug-related felony counts with the misdemeanor charge being

voluntarily dismissed upon motion of the State. The plaintiff filed this pro se

complaint for legal malpractice against defendant in the Chancery Court for

Hawkins County on April 9, 1998,1 and defendant filed a Motion for Summary

Judgment, which the trial court granted. We affirm.



      1
          The case was transferred to Circuit Court pursuant to T.C.A. § 16-11-102(b).
       Plaintiff contends the trial court abused its discretion in granting summary

judgment to defendant because there were material issues of disputed fact as to

whether defendant (1) helped the state prosecute him by failing to file a motion to

suppress a void and invalid search warrant; (2) intentionally allowed and failed to

object to illegal and irrelevant evidence, i.e., a videotape of plaintiff’s home, car,

furniture, appliances and jewelry; (3) failed to object to a multiple count

indictment; (4) failed to make the State identify and produce its confidential

informant at trial, and (5) improperly told the jury during closing argument how

much time the plaintiff would receive if he was convicted.2

                                              I

       We measure the propriety of the trial court’s grant of summary judgment

against the standard of RULE 56.04, TENN. R. CIV. P., which provides that summary

judgment is appropriate where

              the pleadings, depositions, answers to interrogatories,
              and admissions on file, together with the affidavits, if
              any, show that there is no genuine issue as to any
              material fact and that the moving party is entitled to a
              judgment as a matter of law.

       The nonmoving party is entitled to the benefit of any doubt. Byrd v. Hall,

847 S.W.2d 208, 211 (Tenn. 1993). The court must “take the strongest legitimate

view of the evidence in favor of the nonmoving party, allow all reasonable

inferences in favor of that party, and discard all countervailing evidence.” Id. At

210-11. All facts supporting the position of the nonmovant must be accepted as

true by the trial court. Id. At 212. It is only when the material facts are undisputed

and conclusively demonstrate that the movant is entitled to a judgment that a trial

court is justified in depriving a claimant of its right to a plenary trial; in all other


       2
        This fifth item was omitted from plaintiff’s “Amended Petition” filed June 5, 1998
and therefore we presume he has waived this issue.

                                              2
instances, a trial on the merits is required. Summary judgment “is clearly not

designed to serve as a substitute for the trial of genuine and material factual

matters.” Id. At 210.

      When reviewing a grant of summary judgment, an appellate court must

decide anew if judgment in a summary fashion is appropriate. Cowden v. Sovran

Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991); Gonzales v. Alman

Constr. Co., 857 S.W.2d 42, 44-45 (Tenn. App. 1993). Since this determination

involves a question of law, there is no presumption of correctness as to the trial

court’s judgment. Id.; Hembree v. State, 925 S.W.2d 513, 515 (Tenn. 1996).

                                         II

      The plaintiff contends that the defendant helped the state prosecute him by

failing to file a motion to suppress a void and invalid search warrant. The

defendant filed an affidavit stating that he investigated the issue of the propriety

of the search warrant and its issuance and determined that the search warrant was

properly issued and executed. In the course of the hearing on plaintiff’s petition

for post-conviction relief, that court found no impropriety in the issuance or

execution of the search warrant.

      Next, the plaintiff contends that the defendant intentionally allowed and

failed to object to illegal and irrelevant evidence, i.e., a videotape of plaintiff’s

home, car, furniture, appliances and jewelry. The defendant, in his affidavit, states

that he considered the question of admissibility of the videotape evidence and

determined that the videotape was properly made and legally admissible in

evidence to show the locations where drugs or money were found during the

search. This issue was raised at plaintiff’s post-conviction relief hearing and the

court found no error respecting the videotape evidence.



                                         3
      Next, the plaintiff contends that the defendant failed to object to a multiple

count indictment. The defendant states that neither he nor Mr. Mattocks, plaintiff’s

attorney in his post-conviction relief hearing, could see any prejudice which

resulted to his client with respect to the indictment. Mattocks stated at the post-

conviction hearing: “Quite frankly, your Honor, I don’t understand how it

prejudiced him; but it’s an issue he has and it’s an issue he wants brought up.” The

court found no impropriety.

      Next, the plaintiff contends that the defendant failed to make the State

identify and produce its confidential informant at trial. The defendant states that

his trial strategy was such that he did not want the confidential informant at trial,

because the informant would testify that plaintiff had not only been in the

possession of illegal drugs but had actually sold them.

                                         III

      In a legal malpractice action, the defendant lawyer’s conduct in representing

the client is measured against the degree of care, skill and diligence which is

commonly possessed and exercised by attorneys practicing in the same jurisdiction.

Spalding v. Davis, 674 S.W.2d 710 (Tenn. 1984). The conduct complained of in

this case involves legal strategies and, as such, “ . . . these are not matters within

the common knowledge of laypersons. Expert testimony is required.” Cleckner v.

Dale, 719 S.W.2d 535 (Tenn. App. 1986).

      Defendant has practiced law in this jurisdiction for over forty years,

including 17 years as District Attorney General for what is now the Third Judicial

District. From 1982 until 1998 he was engaged in the practice of law in Hawkins

County, with a particular emphasis in criminal defense. His motion for summary

judgment in this case was supported by his own expert affidavit insisting that he



                                          4
did not deviate from the standard of care, skill and diligence in this jurisdiction.

The affidavit of a defendant expert is admissible for consideration in a motion for

summary judgment. Smith v. Graves, 672 S.W.2d 787 (Tenn. App. 1984). Once

he has proffered such expert testimony, he has met his burden of persuading the

court that no genuine and material factual issues exist, and that defendant is

therefore, entitled to judgment as a matter of law.         When the party seeking

summary judgment makes a properly supported motion, the burden then shifts to

the non-moving party to set forth specific facts, not legal conclusions, by using

affidavits or the discovery materials listed in Rule 56.03, establishing that there are

indeed disputed material facts creating a genuine issue of material fact. Byrd,

supra.

Plaintiff has offered no such proof by way of expert testimony concerning the

applicable standard of care for a criminal defense attorney in this jurisdiction or

how this standard of care was breached by the defendant. As such, he has failed

to establish the essential elements of his case.       Consequently, we affirm the

judgment of the trial court granting defendant’s motion for summary judgment at

the cost of the appellant.



                                         _______________________________
                                         William H. Inman, Senior Judge
CONCUR:



_______________________________
Houston M. Goddard, Presiding Judge



_______________________________
Herschel P. Franks, Judge



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