IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
January 28, 2015 Session
TERRY NELSON v. MICHAEL D. PONCE & ASSOCIATES, PLLC
Appeal from the Circuit Court for Davidson County
No. 13C895 Don R. Ash, Judge
No. M2014-01079-COA-R3-CV - Filed February 26, 2015
This is a legal malpractice case that was dismissed on grant of summary judgment in favor
of Appellee law firm. The trial court denied Appellant’s motion to continue the hearing on
the motion for summary judgment, and also struck Appellant’s filings in opposition to the
motion for summary judgment as untimely. Discerning no error, we affirm and remand.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court is
Affirmed and Remanded
K ENNY A RMSTRONG, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J.,
W.S., and A RNOLD B. G OLDIN, J., joined.
James D.R. Roberts, Jr., and Janet L. Layman, Nashville, Tennessee, for the appellant, Terry
Nelson.
Blakeley D. Matthews, Jason K. Murrie, and Peter C. Robison, Nashville, Tennessee, for the
appellee, Michael D. Ponce & Associates, PLLC.
1
MEMORANDUM OPINION 1
I. Background
This is a legal malpractice case stemming from Appellee Ponce & Associates, PLLC’s
(“Ponce Law”) representation of Appellant Terry Nelson for possible claims against
Corrections Corporation of America (“CCA”). In June 2011, Mr. Nelson met with Mr.
Brian Dunigan, a lawyer with Ponce Law, to discuss the possibility of filing suit against
CCA. Mr. Nelson claimed that while he was incarcerated at a CCA facility, he “suffered
injuries, including a seizure, which were misdiagnosed and/or mistreated.” Mr. Nelson
asserted that CCA’s alleged negligence resulted in “serious aggravation of his injuries.” On
June 7, 2011, Mr. Nelson entered into a contingency retainer agreement with Ponce Law.
The agreement contemplated and expressly allowed Ponce Law to associate additional
lawyers to assist in pursuing Mr. Nelson’s potential claims. The agreement further allowed
Ponce Law to withdraw from representation in the event that facts were uncovered that
rendered the representation “unwise, unethical or simply impossible.” Specifically, the
agreement provided:
Client acknowledges that [Ponce Law] retains the right to
withdraw as his/her attorney. . . . If the Law Office determines
it no longer desires to represent me in this matter, I agree to
consent to its withdrawal as my attorney upon proper, timely and
written notice. I understand and agree that if I have moved or
relocated without informing the Law Office, I may not receive
notice that the Law Office has withdrawn its representation of
me. I will therefore notify the Law Office prior to any move.
Pursuant to the parties’ agreement, Ponce Law associated the Memphis law firm of
Rosenblum & Reisman, P.C. to assist in the investigation and assessment of the viability of
Mr. Nelson’s case against CCA. In addition to obtaining Mr. Nelson’s hospital records,
1
Rule 10 of the Rule of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the
case, may affirm, reverse or modify the actions of the trial court by
memorandum opinion when a formal opinion would have no
precedential value. When a case is decided by memorandum opinion
it shall be designated “MEMORANDUM OPINION”, shall not be
published, and shall not be cited or relied on for any reason in any
unrelated case.
2
Ponce Law requested and obtained Mr. Nelson’s inmate medical records from CCA. Because
Mr. Nelson had been incarcerated on several occasions, these records were quite voluminous.
Ponce Law worked with lawyers from Rosenblum & Reisman to review the records. Ponce
Law also arranged for Dr. George W. Thomas, M.D. to review the records for the purpose
of providing an expert opinion as to Mr. Nelson’s potential claims. By letter of February 10,
2012, Dr. Thomas opined that Mr. Nelson’s claims against CCA lacked any medical support.
Dr. Thomas’s letter was filed in support of Ponce Law’s motion for summary judgment,
discussed infra.
Based on Dr. Thomas’s conclusion, coupled with the information Ponce Law had gleaned
from its review of Mr. Nelson’s records, Ponce Law determined that Mr. Nelson’s lawsuit
against CCA was not viable. Accordingly, Ponce Law withdrew from representation. The
decision to withdraw its representation was allegedly conveyed to Mr. Nelson by letter dated
February 17, 2012. This letter, which was sent from Brian Dunigan, the Ponce Law lawyer
assigned to Mr. Nelson’s case, indicates that Ponce Law is notifying Mr. Nelson of its
withdrawal from representation by letter “because [Ponce Law is] unable to reach [Mr.
Nelson] by telephone.” This letter also reminds Mr. Nelson of the applicable statute of
limitations period for filing his claims against CCA, i.e., “. . . if you wish to pursue this
matter further, please remember that Tennessee has a statute of limitations and other legal
deadlines that apply to personal injury cases. Your case must be filed properly with the court
[within] one year of the date of injury.” This letter was filed with the trial court in support
of Ponce Law’s motion for summary judgment. Mr. Nelson claims he did not receive the
February 17 letter. However, Mr. Dunigan’s affidavit and Ponce Law’s time sheets, both of
which were submitted to the court in support of the motion for summary judgment, state that
Mr. Nelson called Ponce Law on February 21, 2012 and February 22, 2012. Mr. Dunigan’s
affidavit states that during these telephone conversations, Ponce Law “informed [Mr. Nelson]
of its determination and the need to withdraw from further representation.”
On February 28, 2013, Mr. Nelson filed a complaint for legal malpractice and breach of
contract against Ponce Law. On October 8, 2013, the trial judge conducted a telephonic
case-management conference, in which lawyers for both sides participated. During the
conference, the parties agreed that the trial would commence on May 6, 2014; the
commencement date was subsequently moved to May 19, 2014 by order entered on January
31, 2014. The parties also agreed on the case management deadlines, which were approved
by entry of an Agreed Scheduling Order on December 23, 2013.2 Pursuant to this order, Mr.
2
Tennessee Rule of Civil Procedure 16.01 provides, in relevant part, that:
(continued . . .)
3
Nelson was required to “disclose any and all expert witnesses on or before January 17,
2014.” Furthermore, the agreed order states that “a motion hearing date is set for February
24, 2014, at 2:00 p.m.” (emphasis in original).
Mr. Nelson neither disclosed an expert witness, nor requested additional time to comply with
the scheduling order by the January 17, 2014 deadline. On January 23, 2014, Ponce Law
filed a motion for summary judgment. In support of its motion, Ponce Law filed its
responses to interrogatories and requests for production of documents, a statement of
undisputed material facts, a memorandum of law, and Mr. Dunigan’s affidavit. In his
affidavit, Mr. Dunigan opined that Ponce Law had not breached the standard of care for
professional legal services in its representation of Mr. Nelson. In its motion, Ponce Law
argued that Mr. Nelson’s “expert disclosures deadline has passed without [Mr. Nelson’s]
disclosure of any competent expert to support his claims of professional negligence.”
Accordingly, Ponce Law argued that Mr. Nelson “cannot rebut the testimony of Brian
Dunigan that Ponce Law complied with the applicable standard of care throughout its
representation of [Mr. Nelson].” Pursuant to the agreed scheduling order, supra, the motion
for summary judgment was set for hearing on February 24, 2014.
Pursuant to Tennessee Rule of Civil Procedure 56.03, Mr. Nelson was required to file and
serve a response to the motion for summary judgment five days before the scheduled
hearing.3 Likewise, under Tennessee Rule of Civil Procedure 56.04, Mr. Nelson was
(continued. . .)
(1) In any action, the court may in its discretion, or upon motion of
any party, conduct a conference with the attorneys for the parties and
any unrepresented parties, in person or by telephone, mail, or other
suitable means, and thereafter enter a scheduling order that limits
the time:
(A) to join other parties and to amend the pleadings;
(B) to file and hear motions; and
(C) to complete discovery.
3
Rule 56.03 provides, in pertinent part that:
Any party opposing the motion for summary judgment must, not later
than five days before the hearing, serve and file a response to each
fact set forth by the movant either (i) agreeing that the fact is
undisputed, (ii) agreeing that the fact is undispusted for purposes of
ruling on the motion for summary judgment only, or (iii)
(continued . . .)
4
required to file any opposing affidavits not later than five days before the hearing.4 The time
period for filing a response to the motion for summary judgment was less than eleven days.
Tennessee Rule of Civil Procedure 6.01 provides, in relevant part, that “[w]hen the period
of time prescribed or allowed is less than eleven (11) days, intermediate Saturdays, Sundays,
and legal holidays shall be excluded in the computation.” We noted that February 17, 2014
was observed as the President’s Day holiday. Therefore, applying Rule 6.01, Mr. Nelson had
until February 14, 2014 to file and serve his response to the motion for summary judgment.
Mr. Nelson did not file either a response, or an opposing affidavit by the February 14, 2014
deadline. Moreover, he did not file a motion for enlargement of the time for submission
under Tennessee Rule of Civil Procedure 6.02 before the Rule 56 deadline. After the
deadline for response passed, Ponce Law served Mr. Nelson’s lawyer with a proposed order
granting the motion for summary judgment pursuant to Davidson County Local Rule Section
26.04(g), which allows a motion for summary judgment to be granted where there has been
no timely response.5 In response to the proposed order, on February 20, 2014, Mr. Nelson
(continued . . .)
demonstrating that the fact is disputed. Each disputed fact must be
supported by specific citation to the record. Such response shall be
filed with the papers in opposition to the motion for summary
judgment.
4
Tennessee Rule of Civil Procedure 56.04 provides, in pertinent part:
The motion shall be served at least thirty (30) days before the time
fixed for the hearing. The adverse party may serve and file opposing
affidavits not later than five days before the hearing.
5
Davidson County Local Rule 26.04 provides, in relevant part:
d. If the motion is opposed, a written response to the motion must be
filed and personally served on all parties. The response shall state
with particularity the grounds for opposition to the motion, supported
by legal authority, if applicable. If no response is filed, the motion
shall be granted. . . .
e. Responses to motions, including counter-affidavits, depositions,
briefs, or any other matters presented in opposition to motions, must
be filed with the clerk’s office by the close of business on Monday
before the Friday on which the motion is to be heard. The response
must also be personally served upon all parties no later than 5:00 p.m.
on the Monday before the Friday on which the motion is to be heard.
If Monday falls on a holiday and the offices of the court clerks are
(continued . . .)
5
filed an Expedited Motion to Continue, wherein Mr. Nelson’s lawyer explains:
1. [Ponce Law] filed its Motion for Summary Judgment on
January 23, 2014;
2. At the time the motion [for summary judgment] was filed, the
Court had February 24, 2017 and March 7, 2014 available for
hearings. The February 24th date was only 32 days from the date
of service, and not 37, as required under Tenn. R. Civ. Pro. 56;
3. [Mr. Nelson’s] counsel voluntarily agreed to the earlier
February date to expedite the case not knowing that Mr. Nelson
had traveled to California, and that he had been incarcerated in
California for what counsel understands was a probation
violation;
4. At the time counsel agreed to a shortened response period, he
did not have any reason to believe he would have a problem
communicating with Mr. Nelson. . . .
5. Finally, on February 18, 2014, counsel for the first time
obtained an (email) address for Mr. Nelson. Counsel promptly
sent Mr. Nelson an affidavit via email to sign and instructed him
to execute, notarize, and return the same immediately. . . .
(continued . . .)
closed, responses to motions must be filed with the clerk's office by
the close of business on the Tuesday before the Friday on which the
motion is to be heard. In case of a Monday holiday, service of the
response on all parties must occur no later than 5:00 p.m. Tuesday.
f. Replies to responses, if any, must be filed with the clerk's office by
the close of business on the Wednesday before the Friday on which
the motion is to be heard. The reply must also be personally served on
all other parties no later than 5:00 p.m. on the Wednesday before the
Friday on which the motion is to be heard.
g. IF NO RESPONSE IS TIMELY FILED AND PERSONALLY
SERVED, THE MOTION SHALL BE GRANTED AND COUNSEL
OR PRO SE LITIGANT NEED NOT APPEAR IN COURT AT THE
TIME AND DATE SCHEDULED FOR THE HEARING.
(Emphasis in original).
6
6. Mr. Nelson has not returned the signed affidavit. . .6
Based on the foregoing factual averments, Mr. Nelson’s lawyer asked the trial court to move
the hearing date on the motion for summary judgment to March 7, 2014 so as to restore Mr.
Nelson “to his full thirty-seven (37) [sic] day response time as contemplated by Rule 56 of
the Tennessee Rules of Civil Procedure.” Ponce Law opposed the motion for continuance,
arguing that regardless of his failure to timely respond to the motion for summary judgment,
Mr. Nelson had also failed to disclose his expert by the January 17, 2014 deadline. Because
the failure to comply with the earlier scheduling order could not be cured, Ponce Law argued
that the motion for summary judgment should be granted without continuance. On February
21, 2014, Mr. Nelson filed an expedited motion to extend the original expert disclosure date
(i.e., January 17, 2014) to February 24, 2014. In its March 6, 2014 order, infra, the trial court
notes that the “expedited motion to continue” was “received by this court some four (4) hours
after receipt of [Ponce Law’s] proposed order [granting its motion for summary judgment].”
The motion to continue was heard via teleconference on February 21, 2014. Concerning the
motion to continue, the court’s March 6, 2014 order goes on to state only that the court
“denied [Mr. Nelson’s] motion to continue at that time.” The order does not indicate the trial
court’s reason for denying the motion. Furthermore, the expedited motion to extend the
expert disclosure date is not specifically referenced in either the order granting summary
judgment, the amended order granting summary judgment, or in any separate order.
Nonetheless, we glean from the subsequent proceedings, and the grant of summary judgment,
that the trial court also denied this motion.
On February 24, 2014, the trial court heard the motion for summary judgment. On March
6, 2014, the trial court entered its order granting Ponce Law’s motion for summary judgment.
In the order, the trial court finds, in relevant part:
On February 21, 2014, [Mr. Nelson] sent[, by] an e-mail to the
court and to defense counsel[,] the affidavit of attorney Nathan
Scott Moore[,] which was signed on February 12, 2014;
6
Mr. Nelson’s motion for continuance contains a misstatement. Therein, Mr. Nelson
states that Tennessee Rule of Civil Procedure 56 requires 37 days between service of the motion for
summary judgment and hearing on same. Rule 56.04 of the Tennessee Rules of Civil Procedure
states that “the motion shall be served at least thirty (30) days before the time fixed for hearing”
(emphasis added). Likewise, the Davidson County local Rules of Court do not extend this thirty-day
time period. Rather, Local Rule 26.01 comports with Tennessee Rule of Civil Procedure 56.04,
stating: “Dispositive motions must be scheduled to be heard at least thirty (30) days before a trial
date unless the court otherwise orders.” We note, however, that the thirty-day time period may be
extended by operation of Tennessee Rules of Civil Procedure 6.
7
unsigned affidavit of Terry Nelson; and [Mr. Nelson’s] response
statement of undisputed facts. The documents were marked
during the Court hearing on February 24, 2014. Later that day
[i.e., February 24, 2014] , and after the conclusion of the
hearing, the court received a signed affidavit of Terry Nelson.
The court’s March 6, 2014 order grants summary judgment to Ponce Law on the ground that
Mr. Nelson “did not timely file either an expert affidavit or an affidavit disputing the sworn
statements of [Ponce Law].” As noted by the trial court, Mr. Nelson did file his signed
affidavit on February 24, 2014 (sometime after the hearing concluded). On April 3, 2014,
Mr. Nelson filed a Tennessee Rule of Civil Procedure 59 motion to alter or amend the March
6, 2014 order granting summary judgment.
On April 16, 2014, the trial court filed an Amended Order, stating, in relevant part:
3. A scheduling order, prepared by parties, was submitted to the
court. . . . It provided . . . [Mr. Nelson would] disclose any
expert witnesses by January 17, 2014.
* * *
13. Here, [Mr. Nelson] did not timely file either an expert
affidavit or an affidavit disputing the sworn statements of
[Ponce Law].
14. . . . In this case, [Mr. Nelson] failed to cooperate with his
counsel in timely submitting affidavits from himself or his
expert. The Rules of Civil Procedure need to be fairly applied to
both sides of litigation, and, therefore, [Mr. Nelson’s]
affidavit of attorney Nathan Scott Moore, unsigned affidavit
of Terry Nelson, [Mr. Nelson’s] response statement of
undisputed facts, and signed affidavit of Terry Nelson. . . are
STRICKEN as untimely.
(Emphasis in original).
In the absence of the stricken documents, the trial court concluded that there were no
disputed issues of material fact, and that Ponce Law was entitled to judgment as a matter of
law.
On May 1, 2014, Mr. Nelson filed an amended Tennessee Rule of Civil Procedure 59 motion
to alter or amend the April 16, 2014 amended order. On May 15, 2014, the trial court denied
8
the Rule 59 motion, citing Vaccarella v. Vacarella, 49 S.W.3d 307, 312 (Tenn. Ct. App.
2001), for the proposition that a motion to alter or amend may not be granted if such motion
is seeking to re-litigate matters that have already been adjudicated. In denying Mr. Nelson’s
motion, the trial court specifically found that there had been no change of law, new evidence,
or clear error so as to warrant relief from the April 16, 2014 order. Specifically, the May 15,
2014 order provides:
6. This court granted summary judgment in favor of [Ponce
Law] and denied [Mr. Nelson’s] requests to consider the late-
filed responses and affidavits of [Mr. Nelson]. . . .
7. [Mr. Nelson] argues the court erred in denying his request to
consider late-filed documents and affidavits which created an
injustice to [Mr. Nelson]. . . .
8. This court previously ruled [Mr. Nelson] did not timely file
either an expert affidavit or an affidavit disputing the sworn
statements of [Ponce Law] in its order granting summary
judgment and struck the untimely documents filed by [Mr.
Nelson].
9. This court finds there are no clear errors of fact or law [to
justify the grant of the motion to alter or amend].
II. Issue
Mr. Nelson filed a timely notice of appeal on June 5, 2014. The sole issue for review is
whether the trial court erred in granting summary judgment in favor of Appellee Ponce Law.
III. Standard of Review
A trial court’s decision to grant a motion for summary judgment presents a question of law.
Our review is therefore de novo with no presumption of correctness afforded to the trial
court's determination. Bain v. Wells, 936 S.W.2d 816, 622 (Tenn.1997). This Court must
make a fresh determination that all the requirements of Tennessee Rule of Civil Procedure
56 have been satisfied. Abshure v. Methodist Healthcare–Memphis Hosps., 325 S.W.3d 98,
103 (Tenn.2010). When a motion for summary judgment is made, the moving party has the
burden of showing that “there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. Further, according to the
Tennessee General Assembly:
In motions for summary judgment in any civil action in
Tennessee, the moving party who does not bear the burden of
9
proof at trial shall prevail on its motion for summary judgment
if it:
(1) Submits affirmative evidence that negates an essential
element of the nonmoving party’s claim; or
(2) Demonstrates to the court that the nonmoving party’s
evidence is insufficient to establish an essential element of the
nonmoving party's claim.
Tenn. Code. Ann. § 20–16–101 (effective on claims filed after July 1, 2011).
IV. Analysis
As discussed above, the trial court granted summary judgment on the ground that Mr. Nelson
failed to file any response to Ponce Law’s motion for summary judgment within five days
of the hearing on the motion as required under Tennessee Rules of Civil Procedure 56.03 and
56.04. In the agreed scheduling order, Mr. Nelson agreed that all motions would be heard
on February 24, 2014, which was less time between service of the motion and hearing than
contemplated by Rule 56.7 From the arguments set out in his appellate brief, and based upon
the relief sought in the trial court, we conclude that despite agreeing to the earlier hearing
date of February 24, 2014, Mr. Nelson ostensibly wishes to be given the full measure of time
allowed under the rules of civil procedure and/or the local rules of the Davidson County
Circuit Court. By denying Mr. Nelson’s motion to continue the summary judgment hearing,
the trial court denied him the benefit of additional time under Rule 56.04 to make responsive
filings in opposition to the motion for summary judgment. In the absence of any filings in
opposition to the motion for summary judgment, the trial court correctly granted the motion
in favor of Ponce Law under Tennessee Rule of Civil Procedure 56.06 (“If the adverse party
7
As noted above, Tennessee Rule of Civil Procedure 56.04 contemplates at least thirty
days between service of the motion and hearing on same. Here, Ponce Law filed its motion for
summary judgment on January 23, 2014. The certificate of service on the motion indicates that
service was made by U.S. mail. Tennessee Rule of Civil Procedure 6.05 extends the time period by
three days when service is accomplished by mail. In addition, Tennessee Rule of Civil Procedure
6.01 omits the first day (i.e., January 23, 2014) from the calculation and adds additional days if the
last day falls on a weekend day. Applying these rules to the facts at bar, service of the motion for
summary judgment was accomplished on Monday, January 27, 2014. Thirty days from January 27,
2014 (excluding the first day under Rule 6.01) would have been February 26, 2014.
10
does not so respond, summary judgment, if appropriate, shall be entered against the adverse
party.”). The initial question, then, is whether the trial court erred, or otherwise abused its
discretion, in denying Mr. Nelson’s motion for continuance.
“The granting or denial of a motion for a continuance lies in the sound discretion of the
court.” Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn.1977) (citing Moorehead v.
State, 409 S.W.2d 357, 358 (Tenn.1966)). “The ruling on the motion will not be disturbed
unless the record clearly shows abuse of discretion and prejudice to the party seeking a
continuance.” Id. (citing State v. Strouth, 620 S.W.2d 467, 472 (Tenn.1988)); see also
Comm'r of Dep't of Transp. v. Hall, 635 S.W.2d 110, 111 (Tenn.1982) (“[I]n order to show
an abuse of discretion, the plaintiff must show some prejudice or surprise which arises from
the trial court’s failure to grant the continuance.”) (citation omitted). Under the abuse of
discretion standard, we must consider “(1) whether the decision has a sufficient evidentiary
foundation; (2) whether the trial court correctly identified and properly applied the
appropriate legal principles; and (3) whether the decision is within the range of acceptable
alternatives.” State ex rel. Moore v. Moore, No. W2007–01519–COA–R3–JV, 2008 WL
2687672, at *3 (Tenn. Ct. App. July 3, 2008) (citing State ex rel. Vaughn v. Kaatrude, 21
S.W.3d 244, 248 (Tenn. Ct. App. 2000)). We are required to uphold the trial court’s ruling
“as long as reasonable minds could disagree about its correctness,” and “we are not permitted
to substitute our judgment for that of the trial court.” Caldwell v. Hill, 250 S .W.3d 865, 869
(Tenn. Ct. App. 2007). In considering a motion for a continuance, trial courts should consider
“(1) the amount of time the proceedings have been pending, (2) the reasons for the
continuance, (3) the diligence of the parties seeking the continuance, and (4) the prejudice
to the requesting party if the continuance is not granted.” Burks v. Spurlin, No.
M2006–00122–COA–R3–CV, 2007 WL 1341769, at *2 (Tenn. Ct. App. May 7, 2007)
(citing Nagarajan v. Terry, 151 S.W.3d 166, 172 (Tenn. Ct. App. 2003)).
In applying the foregoing authority, a review of the relevant, procedural time-line is helpful:
• February 28, 2013– Mr. Nelson filed his lawsuit.
• December 23, 2013– Agreed Scheduling Order entered.
This order set January 17, 2014 as date for disclosure of
Mr. Nelson’s expert(s), and February 24, 2014 as the date
for hearing on any motions.
• January 27, 2014– motion for summary judgment is
served, see fn. 7 supra, asserting grounds of failure to
comply with the January 17, 2014 expert disclosure date.
Hearing is scheduled for February 24, 2014 pursuant to
the agreed scheduling order.
• February 14, 2014– Tennessee Rule of Civil Procedure
11
56 time period (i.e., five days prior to the hearing date
including Tennessee Rule of Civil Procedure 6.01
computation for weekends and holiday) for Mr. Nelson
to file responsive documents in opposition to the motion
for summary judgment expires.
• February 20, 2014–Mr. Nelson files his expedited motion
to continue the hearing on the motion for summary
judgment, which the trial court denies on February 21,
2014 during the telephone conference. The March 6,
2014 order reflects the trial court’s ruling.
• February 21, 2014–Mr. Nelson attempts to file
documents in response to the motion for summary
judgment, including his unsigned/unsworn affidavit, the
affidavit of his expert Nathan Scott Moore, Mr. Nelson’s
response to the motion for summary judgment, along
with a counter-statement of undisputed material facts,
and a memorandum of law in response (and opposition)
to the motion for summary judgment.
• February 24, 2014–hearing on the motion for summary
judgment.
• February 24, 2014 (following the hearing)–Mr. Nelson files
his signed and sworn affidavit, and re-files the other
documents that were originally filed on February 21, 2014.
Importantly, at the time Mr. Nelson missed the January 17, 2014 agreed deadline for
disclosure of his expert(s), his legal malpractice case had been pending for some eleven
months. A claimant alleging legal malpractice bears the burden of proving all of the essential
elements of such claim. Horton v. Hughes, 971 S.W.2d 957, 959 (Tenn. Ct. App.1998). “In
order to make out a prima facie legal malpractice claim, [the claimant] must present
competent evidence showing (1) that the accused attorney owed a duty to the plaintiff, (2)
that the attorney breached that duty, (3) that the plaintiff suffered damage, and (4) that the
breach proximately caused the plaintiff's damage.” Id. (citing Lazy Seven Coal Sales, Inc.
v. Stone & Hinds, P.C., 813 S.W.2d 400, 403 (Tenn.1991)); Blocker v. Dearborn & Ewing,
851 S.W.2d 825, 827 (Tenn. Ct. App.1992)). “When determining whether a lawyer breached
a duty, the question becomes whether the lawyer failed to exercise the degree of care, skill,
and diligence commonly possessed and exercised by other attorneys practicing in the same
jurisdiction.” Id. (citing Cleckner v. Dale, 719 S.W.2d 535, 540 (Tenn. Ct. App.1986)). “It
is well-settled law that, ‘[i]n a legal malpractice action, expert testimony is required to
establish negligence and proximate cause unless the alleged malpractice is within the
common knowledge of laymen.’” Strong v. Baker, No. M2007–00339–COA–R3–CV, 2008
12
WL 859086, at *7 (Tenn. Ct. App. Mar.31, 2008) perm. app. denied (Tenn. Oct. 27, 2008)
(quoting Rose v. Welch, 115 S.W.3d 478, 484 (Tenn. Ct. App.2003)). “Only in cases
involving, ‘clear and palpable negligence’ can legal malpractice be determined without
expert testimony.” Id. (citing Rose, 115 S.W.3d at 484; Cleckner, 719 S.W.2d at 540).
“Thus, except in extreme cases, if a defendant-attorney presents expert proof that he or she
did not breach the duty of care, the plaintiff-client must present rebuttal expert proof that a
breach of care did occur in order to create a genuine issue of material fact.” Id. (citing
Bursack v. Wilson, 982 S.W.2d 341, 343–45 (Tenn. Ct. App.1998)). Here, Mr. Nelson has
never argued that the legal malpractice he alleges in his complaint against Ponce Law is so
obvious as to fall within the narrow exception to the expert evidence requirement in legal
malpractice cases. Id. (“[A]bsent allegations of obvious negligence, expert evidence is
required.”). Accordingly, we conclude that the affidavit of his expert Mr. Moore was
necessary to create a dispute of material fact in light of Ponce Law’s submission of Mr.
Dunigan’s affidavit, stating that Ponce Law had not fallen below the applicable standard of
care for lawyers in Tennessee. Therefore, it is a reasonable assumption that Mr. Nelson
should have known the name of his expert at the time he filed his lawsuit on February 28,
2013. Yet, he failed to disclose the name of the expert by the January 17, 2014 deadline,
which was nearly a year after the complaint was filed.
Even if we allow, arguendo, that, under Tennessee Rule of Civil Procedure 56.04, Mr.
Nelson should have been allowed the full five-days before hearing on the motion for
summary judgment to submit his expert’s affidavit, that would have only given him until
February 14, 2014. As noted above, the first attempt to file any responsive documents in
opposition to the motion for summary judgment was on February 21, 2014. Furthermore, Mr.
Nelson’s lawyer did not petition the court for a continuance or for other forms of relief from
the Rule 56 time line until February 20, 2014, which was three days after his filing deadline
had passed, and only one business day before the scheduled hearing. Viewing these facts in
light of the criteria that should be considered in ruling on a motion for continuance, at the
time Mr. Nelson moved for continuance, he had been aware of his claim for nearly two years.
Burks v. Spurlin, 2007 WL 1341769, at *2. This awareness should have provided Mr.
Nelson ample time to procure an expert to testify in his lawsuit. In addition, as set out in the
motion for continuance, and noted by the trial court in its March 6, 2014 order, Mr. Nelson’s
unilateral decision to leave the state without apparently informing his lawyer caused his
lawyer to be unable to file Mr. Nelson’s responsive affidavit. Nonetheless, based upon the
foregoing discussion, Mr. Nelson’s lawyer should have either procured documents to oppose
the motion for summary judgment, or filed for an extension of time well before he regained
contact with Mr. Nelson on or about February 18, 2014. As such, from the totality of the
circumstances, we cannot conclude that the trial court abused its discretion in denying Mr.
Nelson’s request to continue the hearing on the motion for summary judgment. Because Mr.
Nelson failed to provide his opposing documents by the Rule 56 deadline of February 14,
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2014, we further conclude that the trial court did not err in striking these documents. In the
absence of these opposing documents, the trial court correctly granted summary judgment
in favor of Ponce Law. Tenn. R. Civ. P. 56.06.
V. Conclusion
For the foregoing reasons, we affirm the order of the trial court. The case is remanded to the
trial court for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are assessed against the Appellant, Terry Nelson, and his surety,
for all of which execution may issue if necessary.
_________________________________
KENNY ARMSTRONG, JUDGE
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