Spalding v. Davis
| Decision Date | 23 July 1984 |
| Citation | 674 S.W.2d 710 |
| Parties | Michael J. SPALDING, Appellee, v. Maclin P. DAVIS, Jr., Appellant. |
| Court | Tennessee Supreme Court |
William H. Woods, Nashville, for appellant.
Hal D. Hardin, Gen. Counsel, Tennessee Bar Ass'n, Nashville, for amicus curiae.
Sidney W. Gilreath, Knoxville, for appellee.
This is a suit for damages for alleged malpractice by the defendant attorney. The trial judge dismissed the suit following a hearing upon motions by both parties for summary judgment. The plaintiff appealed and the Court of Appeals reversed the trial court and remanded the case for trial. This Court granted the application of the defendant to appeal, and also granted the motion of the Tennessee Bar Association to file a brief as amicus curiae. The case has been ably briefed and argued. For the reasons hereinafter set out, we are of the opinion that the case was properly dismissed in the trial court.
The plaintiff, Michael J. Spalding, M.D., in 1977 retained the defendant, Maclin P. Davis, Jr., to represent him in divorce litigation with Mrs. Spalding. The case went to trial. Mrs. Spalding was represented by attorney Jack Norman. After the trial on May 9, 1977, was over the trial judge, Honorable Benson Trimble, took the case under advisement and on May 25, 1977, filed a memorandum, which contained, inter alia, this language:
"An absolute divorce shall be awarded the plaintiff [Mrs. Spalding] on the statutorily alleged ground of cruel and inhuman treatment.
....
Judge Trimble signed this memorandum and it was released to counsel. Mr. Norman, pursuant to the mandate of the memorandum, prepared a "Final Decree" which was presented to Judge Trimble (apparently on June 2, 1977) and signed by him and entered of record on June 7, 1977. This decree included this pertinent language:
"Accordingly, and thereafter, under date of May 25, 1977, the Court did cause to be entered in this cause a Memorandum Opinion, which is hereby made a part of the record and reference made thereto.
....
Mr. Davis did, on June 15, 1977, file a motion to amend the judgment "by substantially reducing the attorney's fee of $25,000.00 defendant was ordered to pay plaintiff's attorney." On June 24, 1977, an "Amended Motion to Amend Judgment" was filed, seeking not only a reduction in the attorney's fee awarded to adverse counsel, but also seeking an adjudication of specific visitation rights with the minor children and to provide that Dr. Spalding pay child support by means of a trust to be set up and funded by his stock in the West Side Hospital. The trial judge filed a memorandum on July 26, 1977, indicating his satisfaction with the amount of the fee previously set, and instructing Mr. Norman to prepare an order accordingly. The order, which was signed by Judge Trimble on August 9, 1977, recites that the motion to amend the amount of the attorney's fee is denied, and contains this further language:
Apparently the representation of Dr. Spalding by Mr. Davis ended shortly after the entry of this order. The depositions reveal that defendant had advised plaintiff that he could attempt to get the trial court to reduce the amount of Mr. Norman's fee, but could not represent plaintiff on an appeal of that issue because he had another case pending in the Court of Appeals wherein he was defending the reasonableness of a larger fee that he had been awarded in another case. Dr. Spalding retained another attorney, Honorable Jon Harwell, to handle the matter of a possible appeal of the issue of the attorney's fee. While the appeal that was obtained by Mr. Davis went to the totality of the judgment, Dr. Spalding insists that Mr. Harwell was retained with regard to appealing only the attorney's fee award. It is apparently Dr. Spalding's thesis that he did not consider an appeal of the alimony award, because he had been assured that it would cease should his wife remarry. At any rate, a settlement of Mr. Norman's fee was negotiated, and no appeal was perfected by attorney Harwell.
On September 27, 1978, Dr. Spalding, then represented by Honorable Joe P. Binkley, filed a "Petition to Reduce Alimony Payments." After an evidentiary hearing, the Court (Judge Benson Trimble, the original trial judge) on December 20, 1978, reduced the alimony payments from $2,000.00 per month to $1,000.00 per month retroactive to September 27, 1978. (There seems to have been evidence that the ex-wife was then living with a man to whom she was not married.) This order was appealed. However, before that appeal reached the Court of Appeals, Dr. Spalding's ex-wife on May 24, 1979, remarried; and upon the application of counsel for Dr. Spalding, an order was entered on July 18, 1979, relieving Dr. Spalding of paying any alimony after the date of the ex-wife's remarriage. This order included this language: "Upon argument of counsel and the Court reviewing the entire file the Court is of the opinion that the alimony award previously granted to the respondent in this cause should be an award of alimony in futuro." This order was also appealed, and the two orders considered together by the Court of Appeals. In a published opinion, Spalding v. Spalding, 597 S.W.2d 739 (Tenn.App.1980), filed February 29, 1980, certiorari denied by this Court on April 21, 1980, the Court of Appeals held that the alimony award was in solido, rather than in futuro, and thus the trial judge could not lawfully modify the amount of the alimony after the judgment had become final.
Thereafter, on December 16, 1980, the plaintiff, Dr. Spalding, brought this action for damages in the amount of $400,000.00 against his former attorney, Maclin P. Davis, Jr., for malpractice. Plaintiff's complaint alleged that defendant assured plaintiff that in the event that his wife remarried, that the alimony would stop, and:
"[W]as negligent in representing him in this cause, in that he failed to ascertain that the divorce decree which was entered in his cause did not comply with the memorandum opinion of the trial judge, failed to ascertain that the attorney for his wife had substituted language in the Decree which changed the intention and wording of the memorandum opinion, all to the plaintiff's detriment, and that such acts failed to comply with the state of the art of attorneys representing litigants in divorce actions in Davidson County, Tennessee."
Both sides filed motions for summary judgment. The depositions of Dr. Spalding, Mr. Davis and attorney Jack Norman were filed, together with numerous exhibits thereto. The plaintiff's motion was overruled and that of the defendant was granted.
The Court of Appeals held that plaintiff's suit was based upon two grounds: (1) entry of a decree differing from the memorandum opinion of the trial judge; and (2) erroneous advice as to the legal effect of the decree. The intermediate court held that neither issue could be appropriately disposed of on summary judgment and remanded for further proceedings.
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Meadows v. State
...opinions of this Court, so long as either are not overruled or modified by subsequent decisions. To the extent that Spalding v. Davis, 674 S.W.2d 710 (Tenn.1984), holds otherwise, it is In one of those cases in which we denied the application for permission to appeal, State v. Meadows, supr......
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Martin v Sizemore
...expert to have knowledge of the standard of professional care in the jurisdiction where the defendant practices law, Spalding v. Davis, 674 S.W.2d 710, 714 (Tenn. 1984), overruled on other grounds, Meadows v. State, 849 S.W.2d 748, 752 (Tenn. 1993); Cleckner v. Dale, 719 S.W.2d at 540, they......
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Martin v. Sizemore
...expert to have knowledge of the standard of professional care in the jurisdiction where the defendant practices law, Spalding v. Davis, 674 S.W.2d 710, 714 (Tenn. 1984), overruled on other grounds, Meadow's v. State, 849 S.W.2d 748, 752 (Tenn.1993); Cleckner v. Dale, 719 S.W.2d at 540, they......
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Pankow v. Mitchell
...to appeal in these cases, thereby indicating its approval in the reasoning and the results of the two opinions. Spalding v. Davis, 674 S.W.2d 710, 715 (Tenn.1984). ...