FILED
IN THE COURT OF APPEALS OF TENNESSEE July 14, 1999
AT KNOXVILLE Cecil Crowson, Jr.
Appellate C ourt
Clerk
WILLIAM J. LOGAN ) HAWKINS CIRCUIT
) (No. 5023)
Plaintiff/Appellant )
) NO. 03A01-9902-CV-00057
v. )
) HON. JOHN K. WILSON
HEISKELL WINSTEAD, ) JUDGE
)
Defendant/Appellee )
William J. Logan, Pro Se, Appellant
Thomas L. Kilday, Greeneville, for the Appellee.
OPINION
INMAN, Senior Judge
This is a legal malpractice action arising out of a criminal case. The plaintiff
was indicted on June 3, 1996 in the Criminal Court for Hawkins County on three
counts: (1) simple possession of cocaine, (2) possession of a controlled substance
with intent to sell, and (3) tampering with evidence. The case was tried in the
Criminal Court for Hawkins County on June 20, 1996 and plaintiff was convicted
of the two drug-related felony counts with the misdemeanor charge being
voluntarily dismissed upon motion of the State. The plaintiff filed this pro se
complaint for legal malpractice against defendant in the Chancery Court for
Hawkins County on April 9, 1998,1 and defendant filed a Motion for Summary
Judgment, which the trial court granted. We affirm.
1
The case was transferred to Circuit Court pursuant to T.C.A. § 16-11-102(b).
Plaintiff contends the trial court abused its discretion in granting summary
judgment to defendant because there were material issues of disputed fact as to
whether defendant (1) helped the state prosecute him by failing to file a motion to
suppress a void and invalid search warrant; (2) intentionally allowed and failed to
object to illegal and irrelevant evidence, i.e., a videotape of plaintiff’s home, car,
furniture, appliances and jewelry; (3) failed to object to a multiple count
indictment; (4) failed to make the State identify and produce its confidential
informant at trial, and (5) improperly told the jury during closing argument how
much time the plaintiff would receive if he was convicted.2
I
We measure the propriety of the trial court’s grant of summary judgment
against the standard of RULE 56.04, TENN. R. CIV. P., which provides that summary
judgment is appropriate where
the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.
The nonmoving party is entitled to the benefit of any doubt. Byrd v. Hall,
847 S.W.2d 208, 211 (Tenn. 1993). The court must “take the strongest legitimate
view of the evidence in favor of the nonmoving party, allow all reasonable
inferences in favor of that party, and discard all countervailing evidence.” Id. At
210-11. All facts supporting the position of the nonmovant must be accepted as
true by the trial court. Id. At 212. It is only when the material facts are undisputed
and conclusively demonstrate that the movant is entitled to a judgment that a trial
court is justified in depriving a claimant of its right to a plenary trial; in all other
2
This fifth item was omitted from plaintiff’s “Amended Petition” filed June 5, 1998
and therefore we presume he has waived this issue.
2
instances, a trial on the merits is required. Summary judgment “is clearly not
designed to serve as a substitute for the trial of genuine and material factual
matters.” Id. At 210.
When reviewing a grant of summary judgment, an appellate court must
decide anew if judgment in a summary fashion is appropriate. Cowden v. Sovran
Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991); Gonzales v. Alman
Constr. Co., 857 S.W.2d 42, 44-45 (Tenn. App. 1993). Since this determination
involves a question of law, there is no presumption of correctness as to the trial
court’s judgment. Id.; Hembree v. State, 925 S.W.2d 513, 515 (Tenn. 1996).
II
The plaintiff contends that the defendant helped the state prosecute him by
failing to file a motion to suppress a void and invalid search warrant. The
defendant filed an affidavit stating that he investigated the issue of the propriety
of the search warrant and its issuance and determined that the search warrant was
properly issued and executed. In the course of the hearing on plaintiff’s petition
for post-conviction relief, that court found no impropriety in the issuance or
execution of the search warrant.
Next, the plaintiff contends that the defendant intentionally allowed and
failed to object to illegal and irrelevant evidence, i.e., a videotape of plaintiff’s
home, car, furniture, appliances and jewelry. The defendant, in his affidavit, states
that he considered the question of admissibility of the videotape evidence and
determined that the videotape was properly made and legally admissible in
evidence to show the locations where drugs or money were found during the
search. This issue was raised at plaintiff’s post-conviction relief hearing and the
court found no error respecting the videotape evidence.
3
Next, the plaintiff contends that the defendant failed to object to a multiple
count indictment. The defendant states that neither he nor Mr. Mattocks, plaintiff’s
attorney in his post-conviction relief hearing, could see any prejudice which
resulted to his client with respect to the indictment. Mattocks stated at the post-
conviction hearing: “Quite frankly, your Honor, I don’t understand how it
prejudiced him; but it’s an issue he has and it’s an issue he wants brought up.” The
court found no impropriety.
Next, the plaintiff contends that the defendant failed to make the State
identify and produce its confidential informant at trial. The defendant states that
his trial strategy was such that he did not want the confidential informant at trial,
because the informant would testify that plaintiff had not only been in the
possession of illegal drugs but had actually sold them.
III
In a legal malpractice action, the defendant lawyer’s conduct in representing
the client is measured against the degree of care, skill and diligence which is
commonly possessed and exercised by attorneys practicing in the same jurisdiction.
Spalding v. Davis, 674 S.W.2d 710 (Tenn. 1984). The conduct complained of in
this case involves legal strategies and, as such, “ . . . these are not matters within
the common knowledge of laypersons. Expert testimony is required.” Cleckner v.
Dale, 719 S.W.2d 535 (Tenn. App. 1986).
Defendant has practiced law in this jurisdiction for over forty years,
including 17 years as District Attorney General for what is now the Third Judicial
District. From 1982 until 1998 he was engaged in the practice of law in Hawkins
County, with a particular emphasis in criminal defense. His motion for summary
judgment in this case was supported by his own expert affidavit insisting that he
4
did not deviate from the standard of care, skill and diligence in this jurisdiction.
The affidavit of a defendant expert is admissible for consideration in a motion for
summary judgment. Smith v. Graves, 672 S.W.2d 787 (Tenn. App. 1984). Once
he has proffered such expert testimony, he has met his burden of persuading the
court that no genuine and material factual issues exist, and that defendant is
therefore, entitled to judgment as a matter of law. When the party seeking
summary judgment makes a properly supported motion, the burden then shifts to
the non-moving party to set forth specific facts, not legal conclusions, by using
affidavits or the discovery materials listed in Rule 56.03, establishing that there are
indeed disputed material facts creating a genuine issue of material fact. Byrd,
supra.
Plaintiff has offered no such proof by way of expert testimony concerning the
applicable standard of care for a criminal defense attorney in this jurisdiction or
how this standard of care was breached by the defendant. As such, he has failed
to establish the essential elements of his case. Consequently, we affirm the
judgment of the trial court granting defendant’s motion for summary judgment at
the cost of the appellant.
_______________________________
William H. Inman, Senior Judge
CONCUR:
_______________________________
Houston M. Goddard, Presiding Judge
_______________________________
Herschel P. Franks, Judge
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Logan v. Winstead
Combined Opinion