Xingkui Guo v. Rogers

• Decision Date: 26 April 2022
• Docket Number: M2020-01209-COA-R3-CV
• Parties: XINGKUI GUO v. JON DAVID ROGERS
• Court: Tennessee Court of Appeals

XINGKUI GUO v. JON DAVID ROGERS

No. M2020-01209-COA-R3-CV

Court of Appeals of Tennessee, Nashville

April 26, 2022

Session February 17, 2022

Appeal from the Circuit Court for Davidson County No. 18C2570 Thomas W. Brothers, Judge

This appeal concerns a claim of legal malpractice. Xingkui Guo ("Plaintiff") filed a lawsuit for legal malpractice in the Circuit Court for Davidson County ("the Trial Court") against his former attorney Jon David Rogers ("Defendant"). Defendant filed an answer denying Plaintiff's allegations as well as a counterclaim alleging that Plaintiff failed to pay him in full pursuant to the terms of their agreement. Defendant later filed motions for summary judgment as to both Plaintiff's complaint against him and his counterclaim against Plaintiff. The Trial Court granted Defendant's motions for summary judgment. Plaintiff appeals. We hold, inter alia, that there is no genuine issue of material fact necessitating trial. The undisputed material evidence shows that Plaintiff's loss in the underlying lawsuit was not due to negligence in Defendant's representation. The undisputed material evidence shows further that Plaintiff breached his retainer agreement with Defendant by failing to pay him in full pursuant to the terms of the agreement. We affirm the judgment of the Trial Court.

Tenn R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded

Xingkui Guo, Nashville, Tennessee, Pro Se Appellant.

Jon David Rogers, Hendersonville, Tennessee, Pro Se Appellee.

D Michael Swiney, C.J., delivered the opinion of the court, in which John W. McClarty and Kristi M. Davis, JJ., joined.

OPINION

D. MICHAEL SWINEY, CHIEF JUDGE

Background

In October 2018, Plaintiff filed a complaint in the Trial Court alleging legal malpractice against his former attorney Defendant. Plaintiff alleged that Defendant failed to meet a deadline in Plaintiff's legal matter; failed to adequately research the matter; held himself out as Plaintiff's attorney but did not act in Plaintiff's best interest; missed filing deadlines; and lacked understanding of fundamental legal doctrines or procedures. Plaintiff's most significant allegation, which he has repeated throughout this case, is that he lost the underlying lawsuit because Defendant failed to bring to the attention of the trial judge in that matter, Judge Joe P. Binkley, Jr., Judge of the Fifth Circuit Court for Davidson County, evidence that a criminal charge against Plaintiff had been dismissed and judicially expunged. Plaintiff contends this dismissal and judicial expungement was a favorable outcome for purposes of his malicious prosecution claim. In April 2017, Judge Binkley entered an order in the underlying case stating as follows, in relevant part:

In regard to this favorable outcome, the court cited Wallace v. Kato in which the Supreme Court of the United States ruled, "[I]n order-to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order (emphasis added), declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." 127 S.Ct. 1091 (2007). This Court interprets Wallace to rule that an expungement by executive order or executive pardon is a favorable outcome for purposes of the Plaintiff's Malicious Prosecution claim. However, the Court noted that Plaintiff failed to show that a judicial expungement (emphasis added) is analogous or treated also as a "favorable outcome" for the Plaintiff's malicious prosecution claim. Therefore, the Defendant['s] Motion for Summary Judgment as it pertains to the Malicious Prosecution claim is GRANTED and this claim is dismissed with prejudice.

For his part, Defendant filed an answer denying Plaintiff's claim of legal malpractice as well as a counterclaim for damages. In his counterclaim, Defendant alleged breach of contract and intentional misrepresentation arising from Plaintiff's failure to pay him in full pursuant to the terms of their written retainer agreement. Defendant alleged, in part:

At the case at bar, Parties agreed to the representation of Plaintiff by Defendant for a sum of eight-thousand Dollars ($8, 000.00) to carry through the litigation that had been in progress for, at the time, over three and a half years. Plaintiff and Defendant negotiated that the payment of said fee would be divided into three portions to be paid on specific dates. Plaintiff then unilaterally refused to tender the remainder of the final one-thousand Dollars ($1, 000.00) without justification and without any evidentiary basis solely because Plaintiff claims the terms of the agreement changed without a basis to allege so. By refusing to honor the full-terms of the retainer agreement, Plaintiff's actions cause[d] an injury to Defendant by denying him payments to the contract as agreed. Such a failure to adhere resulted in an injury to Defendant for which Plaintiff is responsible.

Additional procedural history unfolded, of which we set out the pertinent events. In October 2019, Defendant filed a motion for summary judgment, his third in this matter, as to Plaintiff's complaint. Defendant's prior motion for summary judgment failed because it was not properly supported by a statement of undisputed material facts. Defendant then filed a statement of undisputed material facts in support of his motion for summary judgment, which included the following:

1. Plaintiff's original complaint alleging defamation against the original defendants in 13C2340 was dismissed solely because an independent set of facts supporting a count of defamation against the original proposed new defendants did not exist. At no point did the Order of April 24, 2017 cite any conduct or error on the part of the Defendant, which caused the dismissal of the aforementioned count.

2. Plaintiff's original complaint alleging malicious prosecution against the original defendants in 13C2340 was dismissed solely because the evidence did not exist to demonstrate to the court that the Plaintiff enjoyed a favorable outcome to the alleged prosecution which was alleged to have been malicious. At no point did the Order of April 24, 2017 cite any conduct or error on the part of the Defendant, which caused the dismissal of the aforementioned count.

3. Plaintiff's original complaint alleging tortious interference with a business relationship against the original defendants in 13C2340 was dismissed solely because there were insufficient facts to meet the standard required for a prima facie case of tortious interference with a business relationship pursuant to Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 701 (Tenn. 2002). Specifically, that an existing business relationship with specific third parties or a prospective relationship with and identifiable class of third persons, evidence of defendants' improper motive of improper means and the defendants' knowledge of a relationship (with a third party) and not mere awareness of the Plaintiff's business dealings with others in general. At no point did the Order of April 24, 2017 cite any conduct or error on the part of the Defendant, which caused the dismissal of the aforementioned count.

4. Plaintiff's original complaint alleging civil conspiracy with a business relationship against the original defendants in 13C2340 was dismissed solely because the Plaintiff failed to provide a sufficient evidentiary basis to demonstrate that the knowledge the original defendants had with the original proposed defendants arose to the level of collusion to create a claim of civil conspiracy. Specifically, the original defendants acknowledged, that the original defendants and original proposed co-defendants were in communication as proposed co-defendant Vivian Wang was an interpreter for the original defendants; however Plaintiff was unable to present evidence that such a relationship created the requisite elements to satisfy a claim of civil conspiracy. At no point did the Order of April 24, 2017 cite any conduct or error on the part of the Defendant, which caused the dismissal of the aforementioned count.

5. The relation-back argument as the basis to add the original proposed co-defendants relying on mistake as a legal basis to prevail on said argument, was denied solely because the identity of the proposed co-defendants was known or should have been known to the Plaintiff from the inception of the action as the proposed co-defendants were in communication with the original defendants as the former was an attorney and interpreter for the latter. At no point did the Order of April 24, 2017 cite any conduct or error on the part of the Defendant, which caused the dismissal of the aforementioned count.

(Footnotes omitted).

Defendant's motion for summary judgment was set to be heard on January 31, 2020. On January 21, 2020, Plaintiff filed a motion seeking to continue the summary judgment hearing. Plaintiff asserted that he needed more time to prepare a response as he only received a transcript of his November 19, 2019 deposition of Defendant on January 18, 2020. Plaintiff also cited "material and competent" evidence he expected to receive from attorneys who had been involved in his previous matter. Nevertheless, the January 31, 2020 summary judgment hearing proceeded as scheduled. The Trial Court entered an order denying Plaintiff's request for a continuance, stating:

Present were Plaintiff and Defendant. Following the presentment of exhibit evidence and the submission of an "Order

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