                IN THE SUPREME COURT OF TENNESSEE

                          AT KNOXVILLE
                                                 FILED
                                                December 21, 1998
JORGE ARIEL SANJINES          )   FOR PUBLICATION
                                                Cecil W. Crowson
                              )
                                              Appellate Court Clerk
     Plaintiff-Appellee       )   FILED: DECEMBER 21, 1998
                              )
v.                            )   HAMILTON COUNTY
                              )
ORTWEIN AND ASSOCIATES, P.C., )   HON. DOUGLAS A. MEYER,
WILLIAM H. ORTWEIN, and       )    JUDGE, sitting by interchange
J. CRIS HELTON                )
                              )   NO. 03-S-01-9712-CV-00139
     Defendants-Appellants    )




For Appellee:                      For Appellants:

J. ARIEL SANJINES, M.D.            SAMUEL R. ANDERSON
Pro se                             SHANE USARY
                                   Chattanooga, TN




                             OPINION




REVERSED                                                 BIRCH, J.
               Jorge Ariel Sanjines, M.D., the plaintiff, is currently

in the custody of the Department of Correction.1               On February 12,

1996,    the    plaintiff   filed   a   pro   se complaint     alleging   legal

malpractice against Ortwein & Associates, William Ortwein, J. Cris

Helton,    and    John   Morgan,2   the      attorneys   who   had   previously

represented him in a criminal proceeding. The essential allegation

of this civil action was that the attorneys had been ill-prepared

and had failed to represent the plaintiff adequately.                     These

“shortcomings,” he alleged, forced him to enter guilty pleas to

first-degree murder, attempted first-degree murder, and conspiracy

to commit first-degree murder.              The trial court granted summary

judgment to the attorneys because the plaintiff failed to file any

response to their motions for summary judgment.                On the same day

that the plaintiff filed the malpractice case, he also filed a pro

se petition under the Post-Conviction Procedure Act.3                In it, the

plaintiff alleged that he did not receive the effective assistance

of counsel in the above-described criminal proceeding.



                                        I



               At issue here is whether the trial court abused its

discretion in refusing to grant the plaintiff’s motion to stay


     1
      The plaintiff is serving an effective sentence of life
imprisonment plus twenty-five years for first-degree murder,
attempted first-degree murder, and conspiracy to commit first-
degree murder.
     2
      Morgan is not a party to this appeal. His application for
permission to appeal was dismissed by order of this Court on
December 8, 1997.
     3
      Tenn. Code Ann. § 40-30-201 et seq. (Supp. 1996). The trial
court denied the petition; it has been argued and is now under
consideration by the Court of Criminal Appeals.

                                        2
proceedings in the malpractice case until the conclusion of the

post-conviction matter.4     The Court of Appeals concluded that the

refusal constituted an abuse of discretion. For the reasons stated

herein, we find no abuse of discretion and conclude that the trial

court properly refused to stay the proceedings in the malpractice

case.



             The matter before us is a simple inquiry into the trial

court’s discretion in refusing to stay the civil action.         Although

framed in the context of summary judgment, the plaintiff does not

contest the trial court’s grant of summary judgment; however, he

challenges the denial of his motion to stay.         Thus, our review is

not under the de novo standard prescribed for application in

summary judgment cases.     See Carvell v. Bottoms, 900 S.W.2d 23, 26

(Tenn. 1995).      Instead, questions of stay or continuance are

matters entrusted to the sound discretion of the trial judge.         See

Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn. 1997).            An

appellate court cannot interfere with the trial court’s decision

unless such decision constitutes an abuse of discretion and causes

prejudice to the party seeking the stay or continuance.         Id.; see

also Rachels v. Steele, 633 S.W.2d 473, 475 (Tenn. App. 1981).



             Though the issue seems simple, it is complicated by the

procedural     tension   occasioned   by   the   malpractice   and   post-

conviction claims moving through the legal system at the same time




     4
      As grounds, the plaintiff suggested the “inherent conflict
and possible prejudice” in proceeding in the malpractice case prior
to the conclusion of the post-conviction matter.

                                      3
on different tracks and by the fact that the same evidence is

relevant to both cases.



                           T h e           p l a i n t i f f              c o n t e n d s          t h a t           h e           i s           c o n s t i t u t i o n a l l y

e n t i t l e d       t o          a n       a u t o m a t i c            s t a y     o f       t h e       m a l p r a c t i c e                   c a s e         u n t i l       t h e

p o s t - c o n v i c t i o n                    m a t t e r        h a s        b e e n         c o n c l u d e d .                       I n        c o n t r a s t ,             t h e

d e f e n d a n t s          i n s i s t            t h a t       t h e      p l a i n t i f f ’ s            r i g h t             t o      a      t r i a l          d o e s      n o t

i n c l u d e       t h e       r i g h t           t o   a v o i d          a l l    p r e - t r i a l              m a t t e r s ,               s u c h      a s      s u m m a r y

j u d g m e n t      o r      d i s m i s s a l               m o t i o n s ,        a n d      t h a t      t h e         t r i a l         c o u r t ’ s            r u l i n g       i n

t h i s   c a s e       w a s            a p p r o p r i a t e            b e c a u s e        t h e      p l a i n t i f f               h a d      a n      o p p o r t u n i t y

t o   r e s p o n d          t o         t h e      s u m m a r y         j u d g m e n t         m o t i o n s            b u t          f a i l e d         t o      d o      s o .



                                                                                        I I



                           We first address the question of the plaintiff’s right to

prosecute a civil action.                                                  In Whisnant v. Byrd, 525 S.W.2d 152, 153

(Tenn. 1975),5 we held that an inmate “has a constitutional right

to institute and prosecute a civil action seeking redress for . . .

the vindication of any . . . legal right.”                                                                              We noted, however, that

such right of action is “qualified and restricted.”                                                                                                                   Id.           The

qualification addressed by Whisnant is the limited right of inmates

to present their cases in court. Whisnant held that absent unusual

circumstances, inmates who file civil actions unrelated to the

legality of their convictions “will not be afforded the opportunity

to appear in court to present their cases during their prison


          5
      Whisnant was a civil action filed by an inmate for the return
of some personal property.    Although we know that Whisnant was
convicted of armed robbery and concealing stolen property, we are
unable to determine his effective sentence.

                                                                                           4
terms.”     Id. at 154.    Trial courts were directed to hold such

matters in abeyance until the inmate is released from prison,

unless     an   “appropriate   directive”   is   issued    requiring      the

attendance of the inmate.      Id.



            The Court of Appeals’s decision in this case, while not

citing Whisnant, followed its rationale in holding that the trial

court abused its discretion in refusing to stay the malpractice

case.     The Court of Appeals reasoned that a failure to stay the

action until the conclusion of the post-conviction proceeding would

result in prejudice to the judicial process.           We cannot agree.



            While the Court in Whisnant was concerned with the rights

of inmates to file civil complaints, the Court did not hold that a

stay is necessary in all civil actions filed by incarcerated

persons in order to prevent prejudice to the judicial process.

Neither did the Court hold that such persons have a constitutional

right to a stay of their civil actions.          The Court was concerned

only with the rights and qualifications of an inmate to appear in

court for trial.       Whisnant does not discuss how a trial court

should handle pre-trial matters such as stays of proceedings in

inmate civil actions.     That is the question thrust upon us today by

the case under submission.



                                     III



            Before discussing how a trial court should handle an

inmate’s    claim   for   legal   malpractice,    we    must   examine    the

differences between a civil action alleging malpractice on the one

                                     5
hand and a post-conviction action alleging ineffective assistance

of counsel on the other.                             While the conduct underlying both may be

identical, the causes of action are distinctive.                                                                   A malpractice

case is a pure civil claim for damages.                                                      An ineffective assistance

of counsel claim, however, arises in the context of a criminal

proceeding and suggests that because of the deprivation of the

petitioner’s constitutional right to counsel, t h e p e t i t i o n e r i s , i n

t h e   u s u a l   c a s e ,    e n t i t l e d    t o    a   n e w         t r i a l .



                    T h e    e l e m e n t s   t h a t    m u s t      b e     p r o v e d    a r e   a l s o    d i f f e r e n t .   T h e

p l a i n t i f f   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.                        Spalding v. Davis, 674 S.W.2d 710, 714 (Tenn.

1984), overruled on other grounds by Meadows v. State, 849 S.W.2d

748, 752 (Tenn. 1993). In addition, the plaintiff must demonstrate

a nexus between the negligence and the injury.                                                                  Lazy Seven Coal

Sales, Inc. v. Stone & Hines, P.C., 813 S.W.2d 400, 406 (Tenn.

1991).



                    In contrast, the petitioner in an ineffective assistance

of      counsel             claim        must        prove             that           counsel’s                 performance            was

deficient and that the deficiency caused prejudice.                                                                        Henley v.

State, 960 S.W.2d 572, 579 (Tenn. 1997); Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693

(1984).             To prove a deficiency, the petitioner must show that

counsel’s acts or omissions were so serious as to fall below an

objective standard of reasonableness under prevailing professional


                                                                    6
norms.   Henley, 960 S.W.2d at 579; Goad v. State, 938 S.W.2d 363,

369 (Tenn. 1996); see also Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975).    Moreover, to prove prejudice, “a petitioner must

show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.”     Goad, 938 S.W.2d at 370 (emphasis added)(quoting

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at

698).



            Because   the   elements   for   legal     malpractice   and

ineffective assistance of counsel are different, we cannot agree

with the plaintiff that the mere simultaneous prosecution of these

claims results in an inherent conflict mandating a stay of pre-

trial proceedings.     Thus, the Court of Appeals erred in finding

that the trial court abused its discretion by refusing to grant the

plaintiff a stay of the malpractice case.



                                  IV



            Our decision today should not be construed as prohibiting

the trial court, in an appropriate case, from staying a legal

malpractice action during the pendency of a post-conviction matter

alleging ineffective assistance of counsel.          For guidance as to

which cases should be stayed and which cases should be allowed to

proceed, we turn to other jurisdictions.



            Many of our sister states have considered this very

question.   See, e.g., Shaw v. State Dep’t of Admin., 816 P.2d 1358,

1360 (Alaska 1991); Gebhart v. O’Rourke, 510 N.W.2d 900, 905 (Mich.

                                   7
1994). These cases differ from the case under submission, however,

because   they   were   decided   in       the   context   of   a   statute   of

limitations question.6       Although we are not faced with such a

question here, we find that the concerns raised by these courts

provide a measure of guidance.         Those concerns include:


                 (1) whether a stay would promote
                 judicial     economy     and     the
                 conservation of judicial resources
                 by reducing the duplication of legal
                 issues to be litigated; and

                 (2) whether the attorney defending
                 a legal malpractice claim is likely
                 to   reveal   privileged  or  other
                 evidence    that   might hurt   the
                 criminal defendant’s chances for
                 post-conviction relief.


Courts should consider these factors on a case-by-case basis, while

at the same time weighing the competing interests of the inmate-

petitioner and the attorney-defendant.



           In weighing these competing interests, the trial court

should also consider whether there are alternatives to a stay that

will still protect the parties’ interests.           For example, the trial

court should examine the following types of trial management

techniques:

                 (1)    the feasibility of proceeding
                        by affidavit or deposition;

                 (2)    the possibility of accelerating
                        one case; and



     6
      The statute of limitations question addressed by these other
jurisdictions is whether the limitations period begins to run upon
the occurrence of the professional conduct giving rise to the
malpractice case or whether the statute is tolled until the
criminal defendant’s post-conviction matter has been successfully
litigated.

                                       8
               (3)   the     creative      use      of
                     stipulations.


The use of such trial management techniques is also within the

trial court’s discretion.



                                  V



          Accordingly, we hold that an inmate who is the plaintiff

in a legal malpractice case and who contemporaneously is the

petitioner in a post-conviction matter involving the same facts is

not entitled to an automatic stay of the malpractice case until the

outcome of the post-conviction matter.7      It is within the trial

court’s discretion to determine, on a case-by-case basis, how to

effectively move both cases through the system at the same time.

Thus, in the case under submission, we reverse the Court of

Appeals’s holding that the trial court abused its discretion in

refusing to grant a stay of the malpractice case.        Accordingly, we

reinstate the summary judgment.



          Costs of this appeal are taxed against Sanjines, for

which execution may issue if necessary.




                                      ______________________________
                                      ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, C.J.
Drowota, Holder, JJ.


     7
      To the extent that Whisnant can be interpreted as mandating
an automatic stay in these cases, it is overruled.

                                  9
