Blocker v. Dearborn & Ewing

• Decision Date: 02 December 1992
• Citation: 851 S.W.2d 825
• Parties: Harold BLOCKER, Plaintiff-Appellant, v. DEARBORN & EWING and Cyrus L. Booker, Individually, Defendants-Appellees.
• Court: Tennessee Court of Appeals

Page 825

851 S.W.2d 825

Harold BLOCKER, Plaintiff-Appellant, v. DEARBORN & EWING and Cyrus L. Booker, Individually Defendants-Appellees.

Court of Appeals of Tennessee Middle Section, at Nashville.

Dec. 2, 1992.

Permission to Appeal Denied by

Supreme Court April 26, 1993.

Douglas E. Jones and E. Joseph Fitzpatrick, Jr., Jones & Rogers, Nashville, for plaintiff-appellant.

George B. McGugin and John B. Carlson, Watkins, McGugin, McNeilly & Rowan, Nashville, for defendants-appellees.

OPINION

FRANKS, Judge.

In this legal malpractice action, the Trial Court granted summary judgment. We vacate and remand for further proceedings.

Plaintiff was involved in an automobile accident on July 26, 1984, and had liability and underinsured motorists' coverage with The Travelers Insurance Company. The other party to the accident, Anderson, was insured by the United States Fidelity & Guaranty Company. (USF&G).

Cyrus Booker, associated with Dearborn & Ewing, sued Anderson on behalf of the plaintiff for damages in July of 1985. Process in that action was returned, not to be found, and process was reissued without obtaining service on September 3, 1985, February 10, 1986, August 5, 1986, February 4, 1987, and February 19, 1987. During that period Booker attempted to locate the Andersons and employed an independent process server. He also wrote a demand letter to defendants' carrier demanding $250,000.00 to settle the case.

After the attempted service in February of 1987, the summons and complaint were not reissued until November 4, 1987, more than six months later.

On December 8, 1988, Booker advised plaintiff that the firm's failure to reissue the summons and complaint in the six month time frame meant that a limitations defense by the Andersons would probably bar plaintiff's personal injury claim. Booker advised that this was something he had "recently discovered" although a letter from USF&G's attorney approximately one year earlier had made the same point. Booker's letter to plaintiff acknowledged plaintiff might have a claim against the law firm for failure to reissue the summons and complaint.

On May 11, 1989, plaintiff brought this action against Booker and the law firm, alleging they had failed to meet the requirements of Tennessee Rules of Civil Procedure, Rule 3, to plaintiff's damage, and subsequently on October 26, 1990, moved to amend and allege fraudulent concealment, i.e., Booker knew about the mistake but tried to convince plaintiff to drop his suit before it was discovered.

The Court did not act on the motion and on August 6, 1991, plaintiff again moved to amend his complaint restating this theory, and naming the individual partners of the law firm as defendants. On August 27, 1991, the Trial Court denied the motions to amend.

After discovery and numerous disputes between the parties about discovery, defendants moved for a summary judgment, asserting the defendants were not negligent, and in the alternative that no harm was caused the plaintiff since the defendant in the tort action could not have been located. To support the motion, defendants relied on Booker's affidavits and depositions of plaintiff and USF&G's attorney.

Plaintiff also moved for a summary judgment asserting defendants in permitting the statute of limitations to run on the original lawsuit were negligent as a matter of law. He also filed the affidavit of an attorney who offered the opinion that defendants' failure to reissue the summons and the subsequent attempt to dissuade plaintiff from pursuing his claim violated their duty to the client.

In acting on the motions for summary judgment, the Trial Judge ruled that Blocker was dilatory in proposing amendments and overruled the motion. He also ruled the failure to reissue the summons did in fact bar the original claim against the Andersons, but defendants were entitled to a summary judgment because plaintiff did not establish that his original lawsuit would have succeeded but for defendants' alleged negligence.

It was error to deny plaintiff's motion to amend. T.R.C.P. 15.01. Under the Rule, amendments are liberally allowed and the Court may admit material amendments at any stage of the proceedings. The Rule, in fact, substantially lessens the exercise of pretrial discretion on the part of a trial judge. Rule 15 requires no construction and states that "leave shall be freely given". Merriman v. Smith, 599 S.W.2d 548 (Tenn.App.1979).

With deference to the Trial Court, the proposed amendments were not untimely. Plaintiff first moved to amend approximately one year before defendants' motion for summary judgment was filed. The proposed amendment was not acted upon until the eve of the hearing on the summary judgments and after plaintiff had renewed his motion. There is no showing that the proposed amendments alleged facts to the surprise of defendants or cause undue prejudice, nor were the proposed amendments filed in bad faith or to harass the defendants. The motion should have been granted.

Summary judgment for the defendants was not proper. The standard for granting summary judgment in a malpractice case is well stated in Goodman v. Phythyon, 803 S.W.2d 697 (Tenn.App.1990). The Court said:

"Summary judgment is to be rendered by a trial court only when it is shown that 'there is no genuine issue as to any material fact that the moving party is entitled to a judgment as a matter of law' ". T.R.C.P. 56-02 (1894).

In ruling on a motion for summary judgment, the Trial Court and the Court of Appeals must consider the matter in the same manner as a motion for a directed verdict made at the close of the plaintiff's proof, i.e., all of the evidence must be viewed in the light most favorable to the opponent of the motion and all legitimate conclusions of fact must be drawn in favor of the opponent. It is only when there is no disputed issue of material fact that a summary judgment should be granted by the trial court and sustained by the Court of Appeals. Graves v. Anchor Wire Corp. of Tennessee, 692 S.W.2d 420 (Tenn.App.1985); Bennett v. Mid-South Terminals Corp., 660 S.W.2d 799 (Tenn.App.1983)."

In an action for legal malpractice, the plaintiff must establish the employment of the attorney, negligent breach of duty by the attorney, and damages resulting from such neglect. However, when a defendant moves for summary judgment he must show undisputed facts requiring judgment in his favor. Sammons v. Rotroff, 653 S.W.2d 740 (Tenn.App.1983). It is undisputed that defendants represented plaintiff in the...