Application for Permission to Appeal Denied by Supreme Court June 13, 1983.
This is a pro se appeal by plaintiff Michael Lee Sammons from a summary judgment dismissing with prejudice his malpractice action against defendant-attorney, David Haines Rotroff. Although he is not a lawyer, Sammons has represented himself from the inception of this professional malpractice action.
The briefs inform us that Sammons was indicted on four counts of kidnapping his own daughter, and, being an indigent, Rotroff was appointed by the Hamilton County Criminal Court to represent him. Sammons was tried and convicted, but we cannot determine from the record the exact nature of the charge in each of the four counts, nor can we determine the precise disposition of the specific counts. He was sentenced to serve a prison term, and his convictions — with one exception — were affirmed by the Court of Criminal Appeals. Throughout these criminal proceedings he was represented by Rotroff, and this representation is the subject of this legal malpractice suit.
In his complaint, Sammons alleges that Rotroff was guilty of professional malpractice for the following reasons: (1) Rotroff improperly perfected or filed an interlocutory appeal to the Court of Criminal Appeals on the issue of double jeopardy. (Sammons had already been held in contempt of court for violating a custody order by kidnapping his own daughter. He contended that the criminal charges that grew out of these actions violated his constitutional right not to be placed twice in jeopardy for the same offense); (2) Rotroff failed to obtain a stay of the criminal trial pending the interlocutory appeal; (3) Rotroff failed to seek the trial judge's recusal after the judge stated that he believed Sammons had perjured himself when he claimed to be an indigent. (This allegation was later
No verbatim transcript or statement of evidence was made, and the record before us consists entirely of the pleadings, motions, orders and other documents filed with the clerk of the trial court. Plaintiff's effort to litigate his malpractice action has been marked by irregularities, and while we feel it unnecessary to catalog each irregularity we feel compelled to comment on the treatment his complaint has received thus far.
First, defendant failed to file an answer to plaintiff's complaint until March 15, 1982, although plaintiff's complaint was filed on December 28, 1981 (defendant was served on January 5, 1982), and defendant had only been granted one thirty-day extension. Thus, defendant was allowed 77 days to respond to plaintiff's complaint, while even with a thirty-day extension, under the rules he should have only been allowed 60 days to file an answer. Tenn.R. Civ.P. 12.01. Nevertheless, the plaintiff's motion for judgment by default which was filed on February 8, 1982, and followed by a motion to render a decision on March 9, 1982, was stricken on March 15, 1982, when defendant finally filed an answer.
Second, plaintiff filed interrogatories propounded to defendant pursuant to Tenn.R. Civ.P. 33 on January 8, 1982, but defendant Rotroff did not respond in any manner. On March 13, 1982, plaintiff filed a motion to compel answers to the interrogatories pursuant to Rule 37 in which he noted that the interrogatories should have been answered on February 20, 1982. On March 31, 1982, plaintiff filed a second set of Rule 33 interrogatories along with a motion to continue the hearing on his previously filed motion for summary judgment until defendant's answers to plaintiff's interrogatories had been submitted. Defendant did not respond to plaintiff's interrogatories until April 26, 1982, when he filed objections to them along with his own motion for summary judgment. That same day, the trial court entered an order that: (1) set June 14, 1982, as the date for the hearing of all motions; (2) allowed defendant not to answer the interrogatories or take any action with respect to them until after the hearing of his motion to strike plaintiff's interrogatories; (3) recited that interrogatories were filed by defendant directed solely to the issue of whether the suit filed by plaintiff was frivolous, and requiring plaintiff to answer the interrogatories within 30 days from the date of entry of the order; plaintiff was permitted to file interrogatories on the same issue allowing defendant 30 days to answer.
Plaintiff was entitled to propound interrogatories to the defendant after filing his complaint, and defendant had 45 days from January 5, 1982 (the date of service of summons and complaint), to answer or object to the interrogatories:
Defendant did not object or in any way respond to plaintiff's interrogatories until April 26, 1982, 111 days after service of the complaint and summons. Under Tenn.R.Civ.P. 37.04, the trial court could have granted plaintiff's motion for judgment by default for defendant's failure to timely answer or object to plaintiff's interrogatories. A less drastic measure would have been to have treated any objection to plaintiff's interrogatories to have been waived by the defendant. See Dollar v. Long Manufacturing, N.C., Inc., 561 F.2d 613,
Third, prior to the hearing on all motions set for June 14, 1982, plaintiff filed a motion for voluntary dismissal without prejudice on May 24, 1982. An order of nonsuit was entered by the court on June 7, 1982. The judge, by letter, informed the plaintiff that the case had been nonsuited and that all motions were moot since the case had been dismissed. Notwithstanding its order of nonsuit dated June 7, 1982, on June 21, 1982, an order designated as "Final Order" was entered as follows:
Plaintiff filed a motion for a new trial and notice of appeal on June 28, 1982. In addition, plaintiff filed for an extraordinary appeal to this court which was denied on July 6, 1982. This court noted in its order, however, that the plaintiff could pursue an appeal pursuant to Tenn.R.App.P. 3 or proceed by post-judgment motion in the trial court.
On July 16, 1982, the court entered its "Final Order" from which order plaintiff has appealed. This order, in effect, set aside the previous actions of the court and reiterated that its setting aside of the order of nonsuit was proper. In summary, the court granted a summary judgment to the defendant on all grounds stated in defendant's motion.
We are now to the point of considering the actual ruling of the court on defendant's motion for summary judgment. In reviewing a summary judgment, the court must view all pleadings and affidavits in the light most favorable to the opponent of the motion, and all legitimate conclusions of fact derived therefrom must be similarly construed. Wyatt v. Winnebago Industries, Inc., 566 S.W.2d 276, 279 (Tenn. App. 1977); see Stone v. Hinds, 541 S.W.2d 598, 600 (Tenn. App. 1976).
The motion alleges as grounds for summary judgment that the suit is, as a matter of law, barred because:
The affidavit filed with the motion is the affidavit of the defendant which in essence state that all the actions taken by the defendant with respect to the handling of the case were taken with due and commensurate skill as an attorney, and that the defendant did not allow any time period to expire which deprived plaintiff of any right to appeal his conviction or that deprived him of his double jeopardy defense. It is further stated in the affidavit that any alleged failure to act would not have changed the result of the plaintiff's conviction and that the action urged upon the defendant by plaintiff would have been frivolous and meritless. The brief filed by the defendant in support of his motion contends that the plaintiff's lawsuit is frivolous, that as a matter of law the plaintiff is unworthy of belief and that the case should be dismissed by the court as frivolous.
The plaintiff in his allegations against the defendant does not seem to contend that the actual conduct of the defense of the criminal trial by the defendant was negligently handled. His contention, for the most part, concerns defendant's post-judgment action, except, of course, for the allegation concerning the interlocutory appeal of defendant's double jeopardy claim. Insofar as the double jeopardy issue is concerned, the Court of Criminal Appeals of this state has decided that the plaintiff was not subjected to double jeopardy. Therefore, plaintiff could have suffered no damage as a result of defendant's failure to properly file an interlocutory appeal on this issue. This also would hold true for the allegation concerning the failure to obtain a stay of the criminal trial pending the interlocutory appeal.
Plaintiff has amended the complaint to eliminate the allegations concerning defendant's failure to seek the trial judge's recusal, so we need not consider that claim.
Plaintiff makes no contention that his indictment, presentment or information did not charge an offense or that the court that tried him was without jurisdiction of the offense charged. As we understand it, this is the office of a motion for arrest of judgment as provided in Tenn.R.Crim.P. 34.
Plaintiff alleged in his complaint that the defendant failed to file a motion for suspended sentence following the conviction, and, in essence, he alleged that this was in violation of his instructions and requests. We note that Tenn.R.Crim.P. 32(f)(1) provides that motions for suspended sentence are to be filed prior to appeals. The defendant, in his motion for summary judgment and supporting affidavit, has not addressed plaintiff's allegation that defendant failed to file a petition for suspended sentence. In a suit against an attorney for professional negligence, the plaintiff must prove three things in order to recover: (1) the employment of the attorney; (2) neglect by the attorney of a reasonable duty; (3) damages resulting from such neglect. Maryland Casualty Co. v. Price, 231 F. 397, 401 (4th Cir.1916); Daugherty v. Runner, 581 S.W.2d 12, 16 (Ky.App. 1978); see Herston v. Whitesell, 348 So.2d 1054, 1057 (Ala. 1977). While we cannot speculate as to the proof that plaintiff might offer in support of his allegation regarding the suspended sentence, we feel that the complaint states a cause of action that has not been refuted by the defendant.
The record in this case indicates that the plaintiff, while acting pro se from the very beginning, attempted to obtain the benefit of the discovery procedures, perhaps not skillfully nor with legal expertise. Despite plaintiff's efforts, however, it is glaringly obvious from the record that the defendant did not object to the interrogatories propounded to him within the time allowed by Rule 33 and that he was never forced by the court to answer the interrogatories, the answers to which conceivably might have had some bearing on the hearing on the motion for summary judgment.
The record reflects that the plaintiff has filed numerous suits, and defendant asserts that all of the lawsuits filed — including this one — are frivolous. This might very well be, but there is nothing in the record other than the sheer volume of suits filed by plaintiff to indicate the nature of any of the lawsuits or any other basis upon which a determination could be made that the other lawsuits were frivolous. At any rate, it does not necessarily follow that this lawsuit is frivolous merely because all other lawsuits filed by this plaintiff were frivolous. Sammons' complaint against Rotroff must stand or fall on its own merits.
We feel that defendant Rotroff was not entitled to judgment as a matter of law on the issue of the failure to apply for a suspended sentence, and that plaintiff's suit should not have been dismissed on motion for summary judgment as a matter of law as stated in the motion. As we have heretofore pointed out, we are not required to speculate as to how the plaintiff might proceed to prove his allegations of negligence and damages resulting therefrom, and we have our doubts that he will be able to present such proof. However, he should have the benefit of the discovery procedures, and the defendant should be required to answer properly propounded interrogatories. It is not inconceivable that after proper discovery, the posture of the case will be such that a summary judgment motion could be filed by one or the other of the parties for the reasons stated in Tenn.R. Civ.P. 56.
For the reasons heretofore stated, we reverse the action of the trial court insofar as it granted summary judgment to defendant on the suspended sentence issue, and remand this case for further proceedings consistent with this opinion. The action of the trial court granting summary judgment as to the other allegations is affirmed.
The costs of the appeal are adjudged against the defendant, David Haines Rotroff, for which execution may issue, if necessary.
NEARN, P.J., and HIGHERS, J., concur.