Foster v. Duggin
| Decision Date | 12 August 1985 |
| Citation | 695 S.W.2d 526 |
| Parties | Jennifer Cheryl FOSTER et al., Appellees, v. Marshall E. DUGGIN, Appellant. 695 S.W.2d 526 |
| Court | Tennessee Supreme Court |
Ronald C. Koksal, W. Kyle Carpenter, Frantz, McConnell & Seymour, Knoxville, for appellant.
Richard F. LaRoche, Sr., Murfreesboro, for appellees.
The question before this court is whether the defendant, an attorney liable for malpractice, is entitled to have the judgment against him reduced by the amount of the legal fee he contracted to receive for the litigation he negligently conducted. The Court of Appeals affirmed the trial court's decision denying the defendant any credit for his contractual fee. We affirm the result reached by the Court of Appeals.
Plaintiffs, Jennifer C. Foster and her parents, James K. Foster and June Foster, brought suit in 1978 to recover damages for personal injuries suffered by Jennifer in an automobile accident. Plaintiffs employed the defendant, Marshall E. Duggin, an attorney licensed in Tennessee, to represent them. Mr. Duggin agreed to handle the litigation for a one-third contingent fee, but then failed to file the action within the one-year statute of limitations for personal injury suits. The plaintiffs were able to enter into a settlement with the original defendant for $12,500, and also filed this malpractice action. Prior to trial, the parties entered into an agreement which was filed with the trial court. In the agreement Mr. Duggin admitted his liability for malpractice, and it was stipulated that only the issue of damages would be tried. The agreement also noted that determining the amount of damages would involve three issues: the amount of direct damages, the award of prejudgment interest, and the reduction of any award by the amount of the legal fees which Mr. Duggin had contracted to receive for his services. Finally, the agreement provided that Mr. Duggin would receive a $12,500 credit for the settlement of the original litigation.
The jury rendered a verdict against Mr. Duggin in the amount of $73,069.20, plus court and attorney fees. The award of attorney's fees was held to be surplusage by the trial court. The trial court approved the $12,500 credit, but denied the plaintiffs' request for prejudgment interest and Mr Duggin's request for reduction of the award.
In determining whether or not a malpractice award should be reduced by the fee which the attorney would have received had he competently handled the litigation, we are faced with two opposing lines of decision. Those cases allowing the reduction hold, generally, that the client should recover only what he would have received had the original matter been properly handled. Since the client would have had to pay the attorney his fee, that fee is deducted from the malpractice award. See, e.g., Childs v. Comstock, 69 App.Div. 160, 74 N.Y.S. 643, 649 (1902); McGlone v. Lacey, 288 F.Supp. 662, 665 (D.S.D.1968). There is some support for this view in Tennessee. See In re Woods, 158 Tenn. 383, 13 S.W.2d 800, 803 (1929); Sitton v. Clements, 257 F.Supp. 63, 65 (E.D.Tenn.1966), aff'd 385 F.2d 869 (6th Cir.1967).
The contrary line of decision, which appears to be the majority...
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Horn v. Wooser
...fee in the legal malpractice action as a consequential or incidental damage resulting from his attorney's negligence.1 Foster v. Duggin, 695 S.W.2d 526, 527 (Tenn.1985). [¶ 10] In resolving the question of how, in Wyoming, a malpractice plaintiff's damages should be calculated, we begin wit......
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Campagnola v. Mulholland, Minion & Roe
...injured client may recover the additional attorney's fees incurred in the malpractice action as consequential damages (e.g., Foster v. Duggin, 695 S.W.2d 526 [Tenn]; Winter v. Brown, 365 A.2d 381 [D.C.App.], supra We conclude that a reduction of the client's recovery should not be allowed i......
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Moores v. Greenberg, s. 86-1586
...fees incurred in the malpractice action are recoverable as consequential damages of the negligent lawyering. E.g., Foster v. Duggin, 695 S.W.2d 526, 527 (Tenn.1985). In our view, the first two of these arguments cannot withstand scrutiny--and we need not reach the last. Restricting the clie......
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Hook v. Trevino, 12–0283.
...Strauss v. Fost, 213 N.J.Super. 239, 517 A.2d 143, 145 (Ct.App.Div.1986); Campagnola, 555 N.E.2d at 614;Foster v. Duggin, 695 S.W.2d 526, 527 (Tenn.1985); Shoemake, 225 P.3d at 995 n. 4;accord Samuel J. Cohen, The Deduction of Contingent Attorneys' Fees Owed to the Negligent Attorney from L......