Sitton v. Clements, 17402.
| Decision Date | 22 November 1967 |
| Docket Number | No. 17402.,17402. |
| Citation | 385 F.2d 869 |
| Parties | Paul K. SITTON, Plaintiff-Appellee, v. Hal H. CLEMENTS, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Jerome Templeton, Knoxville, Tenn., for appellant.
Norman D. Lane, Nashville, Tenn. (John W. Nolan, III, Nashville, Tenn., on the brief), for appellee.
Before WEICK, Chief Judge, and EDWARDS and CELEBREZZE, Circuit Judges.
This is a suit for breach of contract filed under federal diversity jurisdiction. 28 U.S.C. § 1332 (1964). Plaintiff Sitton, a resident of North Carolina, sued defendant Clements, a Tennessee lawyer, for failing to file a personal injury action for Sitton before it was barred by the statute of limitations.
Background facts show that in the course of an altercation on December 4, 1959, one John E. Fuller, a representative of the Sheet Metal Workers Union, shot plaintiff Sitton. The bullet lodged in Sitton's spine, rendering him a paraplegic. Sitton employed Clements as an attorney to represent him on March 18, 1960. The contract consisted of a letter signed by plaintiff Sitton:
Defendant Clements endorsed thereon:
"I hereby accept employment on the above terms."
Fuller was indicted for felonious assault. In January 1961 he was tried and convicted of assault and battery. At the conclusion of the trial (during which Clements aided the prosecution) Clements told Sitton that his personal injury action was barred by statute. The applicable Tennessee statute of limitations, T.C.A. § 28-304, provides a one-year limitation on actions for personal injuries.
Sitton filed this suit on April 12, 1965, over five years after the shooting and over four years after the barring of his personal injury action. The case was tried in the United States District Court for the Eastern District of Tennessee, Northern Division, and a jury awarded Sitton $162,500.1
The District Judge in effect had charged the jury that Clements, under the contract, was entitled to 50 percent of the potential recovery from Fuller, and hence, that in this suit Sitton was only entitled to half of the probable recovery if suit had been filed against Fuller.
On motion for new trial, regarding the verdict based on this charge as contemplating a probable recovery against Fuller of $325,000, the District Judge held the verdict to be excessive in terms of collectibility and ordered a remittitur of $81,250. Plaintiff accepted the remittitur and defendant appealed.
The principal issue on appeal pertains to what statute of limitation applies to the...
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...v. Dixon, supra, 138 Ga.App. at 341, 226 S.E.2d at 148. See also Sitton v. Clements, 257 F.Supp. 63, 67 (E.D.Tenn.1966), aff'd, 385 F.2d 869 (6th Cir.1967); Gladden v. Logan, 28 App.Div.2d 1116, 284 N.Y.S.2d 920 (1967) (per curiam); Taylor Oil v. Weisensee, 334 N.W.2d at 30; Hammons v. Schr......
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Horn v. Wooser
...with by Andrews v. Cain, 62 A.D.2d 612, 406 N.Y.S.2d 168 (1978); Moores v. Greenberg, 834 F.2d 1105 (1st Cir.1987); Sitton v. Clements, 385 F.2d 869 (6th Cir. 1967) (affirming malpractice award reflecting a deduction for the attorney's contingent fee although the appropriateness of the dedu......
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Campagnola v. Mulholland, Minion & Roe
...160, 74 N.Y.S. 643; Moores v. Greenberg, 834 F.2d 1105; McGlone v. Lacey, 288 F.Supp. 662; Sitton v. Clements, 257 F.Supp. 63, 65, affd. 385 F.2d 869; In re Woods, 158 Tenn. 383, 13 S.W.2d 800). Other courts have reached the opposite conclusion, however. Some, as did the Appellate Division ......
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Kituskie v. Corbman
...that he would have succeeded in collecting on the resulting judgment. See Sitton v. Clements, 257 F.Supp. 63 (E.D.Tenn.), aff'd 385 F.2d 869 (6th Cir.1967). A minority of courts in other jurisdictions, however, have rejected the majority's line of reasoning and placed the burden of proving ......