Woodruff v. Tomlin
| Citation | 616 F.2d 924 |
| Decision Date | 21 February 1980 |
| Docket Number | No. 77-1216,77-1216 |
| Parties | Joan WOODRUFF; Patricia Woodruff Hamilton and Louis Hamilton, her husband, Plaintiffs-Appellants, v. Hewitt P. TOMLIN, Jr.; Homer H. Waldrop; Roy Hall; and David R. Farmer, Individually and as Partners doing business under the name and style of Waldrop, Hall, Tomlin & Farmer, a Professional Business Association, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Norman Herring, Robert Stephan, Jr., Phoenix, Ariz., James F. Schaeffer, Memphis, Tenn., for plaintiffs-appellants.
Leo E. Bearman, Jr., John Thomason, Memphis, Tenn., for defendants-appellees.
Wilson Sims, Nashville, Tenn., Jac Chambliss, Chattanooga, Tenn., for amicus Tennessee Bar Association.
Thomas R. Prewitt, Armstrong, Allen, Braden, Goodman, McBride & Prewitt, Memphis, Tenn., for amicus Memphis & Shelby County Bar Association, Inc.
Before EDWARDS, Chief Judge, and WEICK, CELEBREZZE, LIVELY, ENGEL, KEITH and MERRITT, Circuit Judges.
This case involves a claim of legal malpractice arising from the manner in which the defendants handled litigation on behalf of the plaintiffs in the Tennessee state courts. Jurisdiction of the district court was based on diversity of citizenship. The district court severed the plaintiffs' claims based on alleged conflict of interests in the defendants' representation of multiple parties. The district court also ordered a bifurcated jury trial, reserving questions of damages until after the jury had determined issues of liability. The case was tried to a jury on the plaintiffs' claims that the defendants negligently conducted "the investigation, preparation for trial and presentation at trial" of the plaintiffs' claims for personal injuries arising from an auto-truck collision. The jury in the district An appeal was taken to this court from the final judgment dismissing the malpractice action. After oral argument a panel of the court reversed the judgment of the district court. Woodruff v. Tomlin, 593 F.2d 33 (6th Cir. 1979). Thereafter this court granted rehearing en banc by an unpublished order entered May 24, 1979. Following additional briefing and oral argument the case is before the court for decision. Though the effect of the granting of a rehearing en banc is to vacate the previous opinion and judgment of this court (Rule 14, Rules of the Sixth Circuit), we adopt the following statement from the panel opinion:
court was unable to agree on a verdict and the court declared a mistrial. The defendants then filed a motion for judgment n. o. v. and for dismissal of the complaint. This motion was granted. Woodruff v. Tomlin, 423 F.Supp. 1284 (W.D.Tenn.1976).
The plaintiffs, Joan Woodruff and her sister Patricia, then 15 and 16 years of age respectively, were severely injured on May 22, 1968, when an automobile driven by Patricia and owned by her father, in which automobile Joan was riding as a passenger, was struck by a large truck loaded with gravel weighing about 73,000 pounds, on Highway 100 in Chester County, Tennessee. Joan was thrown out of the car and the truck ran over her legs, crushing the bones and tearing the skin off her legs, crippling her for life. Patricia sustained a skull and brain injury resulting in traumatic amnesia, so that she had no memory of the accident.
The girls' hospital bills alone exceeded $20,000.
The girls' father, Charles Woodruff, carried liability insurance on his car with Tennessee Farmers Mutual Insurance Company, with limits of $10,000 for one person, and $20,000 for more than one person. While the girls were in the hospital Theo. Leathers, the Claims Adjuster for the insurer, contacted Mr. Woodruff and gave him a check for medical reimbursement. Leathers advised Mr. Woodruff that he should retain a lawyer. Leathers told Mr. Woodruff that the statements of witnesses to the collision were inconsistent and were changing.
Leathers recommended to Woodruff that he retain Hewitt P. Tomlin, stating that Tomlin was a good lawyer. Tomlin was also the attorney for Tennessee Farmers Mutual Insurance Company. Woodruff then engaged Tomlin to represent his two daughters, and also to represent himself in his claim for damages to his car.
Tomlin filed two suits for personal injuries sustained by the girls and one for damages to the car, against Pomeroy, the driver of the large truck, Teague, the owner of the truck, and Nobles, the owner of the second truck. The suits were filed in the Circuit Court of Chester County, Tennessee.
Pomeroy, the truck driver, and Teague, the owner of the truck, filed suits in said Circuit Court against Patricia Woodruff and her sister Joan, to recover damages for personal injury sustained by Pomeroy, and for damages to the truck. They alleged negligence on the part of Patricia, and that Joan, the passenger, aided and abetted. Tomlin, as attorney for Tennessee Farmers Mutual Insurance Company, defended the suits against the two girls. The suits were all consolidated for trial.
The cases in the state court were tried before a jury, which disagreed 9-3, and a mistrial was declared. At the second trial in the state court the jury returned a verdict in favor of the defendants in the personal injury actions of Patricia and Joan against Pomeroy, Teague and Nobles. In the suit of Pomeroy and Teague against Patricia and Joan the jury returned verdicts in favor of Pomeroy for $600, and Teague in the amount of $3,000.
Upon appeal to the state court of appeals the judgments for the defendants in the personal injury cases of Patricia and Joan against Pomeroy, Teague and Nobles, were affirmed. The judgments in favor of Pomeroy and Teague against Patricia, totaling $3,600, were affirmed, but were reversed as to Joan, the Court holding that there was no evidence to 593 F.2d at 35-36.
prove that Joan, the passenger, aided and abetted in the negligence of Patricia. Therefore Joan was not contributorily negligent, and Patricia's negligence could not be imputed to her.
In the district court the plaintiffs contended that the loss of their personal injury actions in the state trial and appellate courts was proximately caused by negligence of the defendants and by their breach of fiduciary duties arising from the attorney-client relationship. The claim of negligence was predicated upon the following acts and omissions of the defendant Tomlin or other members of his law firm:
(1) Failure to attempt to obtain a change of venue or take a nonsuit and refile in a federal court after the first personal injury trial resulted in a hung jury.
(2) Failure to object to a "clearly erroneous" jury instruction at the second personal injury trial and failure to include the giving of this instruction in the motion and grounds for a new trial.
(3) Failure to consult a traffic reconstruction expert to develop time/distance factors and establish stopping distances.
(4) Failure to interview and present available witnesses who could testify to important facts.
(5) Failure to bring to attention of the trial court certain Tennessee statutes bearing on issues in the case.
(6) Negligence in the conduct of the appeal. This claim was based primarily on the fact that the defendants conceded in their brief in the Tennessee Court of Appeals that there was substantial evidence to support the jury's finding that Patricia was negligent in the operation of her father's automobile. It was also contended that the defendants failed to argue applicable statutes in their appellate brief and failed to argue the "clearly erroneous" instruction.
All of these contentions have been renewed in this court. Since this is a diversity case the court is required to apply the substantive law of Tennessee. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Our problem in this respect arises from the fact that the Supreme Court of Tennessee has never decided a legal malpractice case on facts even remotely resembling those of the present case. In fact, there is a dearth of reported decisions from any jurisdiction dealing with charges of negligence and malpractice in the conduct of litigation. However, the Tennessee Court of Appeals rendered a decision while the present case was pending in the district court in which it held "there can be no cause of action against an attorney arising out of the manner in which he honestly chooses to present his client's case to the trier of facts." Stricklan v. Koella, 546 S.W.2d 810, 814 (Tenn.App.1976), cert. denied by Supreme Court of Tennessee, February 7, 1977. The district court found that the Stricklan case "deals squarely with the question presented here." 423 F.Supp. at 1288. On appeal it is argued by the defendants that Stricklan states the common law of Tennessee, and since there was no charge of dishonesty or bad faith on their part, there can be no cause of action against them for the manner in which they chose to conduct the litigation on behalf of the plaintiffs.
In an early decision applying the Erie doctrine, the Supreme Court held that "in the absence of more convincing evidence of what the state law is," a federal court should apply the law as declared by an intermediate state court. Fidelity Trust Co. v. Field, 311 U.S. 169, 177-78, 61 S.Ct. 176, 178, 85 L.Ed. 109 (1940). Chief Justice Hughes, writing for the Court, noted, "(W)e have no other evidence of the state law in this relation." Id. at 178, 61 S.Ct. at 178. At the same term the Supreme Court further defined the rule to be applied by federal courts as follows:
A state is not without law save as its highest court has declared it. There are many rules of decision commonly accepted and acted upon by the bar and inferior courts which are nevertheless laws of the state although the highest court of the state has never passed upon them. In those circumstances a federal court is not Where an intermediate appellate state court rests its considered...
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