Stricklan v. Koella

• Decision Date: 20 September 1976
• Citation: 546 S.W.2d 810
• Parties: Reece STRICKLAN, Appellant, v. Carl KOELLA, Appellee.
• Court: Tennessee Court of Appeals

Page 810

546 S.W.2d 810

Reece STRICKLAN, Appellant, v. Carl KOELLA, Appellee.

Court of Appeals of Tennessee, Western Section.

Sept. 20, 1976.

Certiorari Denied by Supreme Court Feb. 7, 1977.

John T. Buckingham, Knoxville, for appellant.

William P. O'Neil, Knoxville, J. Lewis Kinnard, Madisonville, for appellee.

NEARN, Judge.

The Trial Judge sustained defendant's motion for summary judgment in a legal malpractice case and the plaintiff has appealed.

These facts are undisputed: Stricklan was convicted of an assault and battery on the person of Lawson Underwood. Thereafter Underwood sued Stricklan in the Circuit Court seeking the sum of $125,000.00 as damages arising out of the assault and battery. Prior to engaging the defendant Carl Koella, a member of the Blount County Bar, to represent him in the defense of the civil suit, plaintiff Stricklan had engaged and disengaged the services of other lawyers. On March 25, 1974, which was seven days preceding the trial date of the civil suit, Stricklan fired Koella. On the day of trial, Stricklan, acting pro se, negotiated a settlement of the civil case against him whereby he paid the sum of $8,500.00 to Lawson Underwood in full satisfaction of her claim against him for damages.

On March 19, 1975, Stricklan filed suit against Koella seeking actual damages in the amount of $9,350.00 allegedly caused by the malpractice of Koella, plus an additional $250,000.00 for 'damage to my reputation'.

The original complaint is as follows:

'Malpractice in my Civil Suit Case $2313 Monroe County, Tennessee

'On the 25th day of March 1974 I fired my Lawyer Carl Koella who I had hired to represent me in my case VS Lawson Underwood.

'When preparing for my case I had asked my Lawyer Carl Koella to take deposition from Lawson Underwood and her children, Susan and Paul David which was very vital to my case.

'Wherefor that the defendant intentionally did not get said depositions or withhelded from me and I did not have any material to go to Court to defend my case.

'I had to make settlement out of court the morning of the trial April 1, 1974 because I had nothing to defend my Case $2313 because my Lawyer was not working in my behalf. He did not carry out our contract which I had hired and paid him to do.

'Wherefore I am demanding Judgment against Lawyer Carl Koella in the amount of Nine Thousand-Three Hundred-Fifty Dollars ($9,350.00) for damages and Two Hundred Fifty Thousand Dollars ($250,000.00) damage to my reputation and my cost of Suit herein incurred and demand a Jury to try the cause.'

S/ Reece Stricklan

An amended complaint added the charges that 'On November 14, 1973 I wrote my Lawyer Carl Koella asking him to summons the witness in my Criminal Case of January 10, 1972 the same case vs. Underwood to prove I did not get a fair trial at that time and he would not do that for me. 'Also, I asked him to file papers to get my Case moved to another County because of the Judge kinfolk relationship to Mrs. Underwood here in Monroe County and that I could not get a fair trial and he would not do that for me. They had a Special Jury Panel for 1 day to try my case.'

A second amended complaint, allegedly by Stricklan pro se, again charged Koella with negligence regarding the matter of depositions and averred Inter alia that Koella had failed.

'to properly take depositions even though the plaintiff requested and pleaded with the defendant to take the depositions of Lawson, Benny and Paul David Underwood, along with various other persons who testified at the Criminal Case $3577 and who claimed to have material information concerning the claims of Lawson Underwood on how she received the injuries sued for in Civil Case $2313 because there were contradictions in the testimony and there were unexplained time delays which were material to the case which could only be brought out by cross-examination and impeachment by prior prepared depositions;

'Due to the negligence of the defendant and the unprofessional, unskilled manner in which the defendant had handled the case, the plaintiff had no materials with which to try the case and was subsequently put into the position to have to settle the case out of court, because he was unable to employ another lawyer at that late date and could not obtain a continuance;'

Koella filed his answer denying any acts of negligence, admitting that plaintiff had insisted that Koella attempt to 'change venue' and admitting that pre-trial depositions of the Underwoods were not transcribed and filed in the civl cause. Koella averred he did not move for a 'change of venue' because the motion would have been improper and unfounded. Koella further averred that in his, Koella's, judgment the pre-trial discovery depositions which he did take of the Underwoods developed no discrepancies and would have been of no use in the trial. Therefore, he, Koella, did not order them transcribed and filed.

Essentially and in simple terms, the cause of action stated is that retained counsel refused to use the trial tactics insisted upon by the client, for which refusal retained counsel's services were terminated; that the refusal of counsel to try or prepare the case in the manner insisted upon by the client (by filing of depositions) caused the client to be without representation on the day of trial and forced the client into an expensive settlement without a trial of his case; that the plaintiff was substantially damaged by the negligence of defendant because if the case had gone to trial and if counsel had taken depositions in the manner insisted upon and if the plaintiff and her witnesses in the suit against Stricklan had testified in such manner so that discrepancies would appear between that testimony, if given, and discovery testimony, if...