Opinion
No. M2004-03017-COA-R3-CV.
Assigned on Briefs March 9, 2007.
Filed April 26, 2007.
Appeal from the Circuit Court for Cannon County; No. 382; Royce Taylor, Judge.
Judgment of the Circuit Court Vacated and Remanded.
Ellis J. Burnett, Clifton, Tennessee, Pro Se.
Daryl M. South, Murfreesboro, Tennessee, Pro Se.
Fran K G. Clement, Jr., J., delivered the opinion of the court, in which William C. Koch, Jr., P.J., M.S., and William B. Cain, J., joined.
OPINION
Plaintiff appeals the Rule 12 dismissal of his action for legal malpractice against the attorney representing him in a case pending in the Court of Criminal Appeals. In the Complaint, the plaintiff alleges that his attorney committed malpractice by failing to raise on appeal specific issues the plaintiff had requested. The defendant attorney filed a Tenn. R. Civ. P. 12.02(6) Motion to Dismiss based on the fact the plaintiff had not requested or obtained post-conviction relief. The trial court granted the motion finding post-conviction relief is an essential element and a pre-requisite to the plaintiff's claim for legal malpractice. We have determined the trial court erred by dismissing the case before the time was ripe for the plaintiff to seek post-conviction relief, and that the trial court should await the outcome of appropriate post-conviction proceedings before deciding whether the case should go forward.
Ellis J. Burnett, Plaintiff, was indicted for aggravated arson setting fire to a residence. In the first criminal trial, he was convicted of aggravated arson, but his attorney successfully moved for a new trial on various grounds. Burnett's attorney in the first trial was granted leave to withdraw and Burnett was represented by Attorney Daryl M. South in the second trial.
The facts in this opinion will be most sparse and sketchy due to the fact the briefs filed by the parties provide very little information other than that found in the Complaint and Motion to Dismiss.
Following the second trial, Burnett was again convicted for the same offense. Believing the same errors occurred in the second trial, Burnett alleges in the Complaint that he requested South raise the issues on appeal to the Court of Criminal Appeals of Tennessee from the second trial that were successfully raised in the motion for new trial following the first trial. Burnett contends South refused to honor this request when South filed the appellant's brief on behalf of Burnett on June 22, 2004 in the Court of Criminal Appeals of Tennessee.
South filed the appellant's brief on behalf of Burnett in the Court of Criminal Appeals of Tennessee on June 22, 2004 in the matter of State v. Burnett, No. M2001-01495-CCA-R3-CD. That appeal was pending when the parties filed their briefs in this court. The Court of Criminal Appeals has since affirmed the conviction. See State v. Burnett, No. M2001-01495-CCA-R3-CD, 2005 WL 1330840 (Tenn.Crim.App. June 6, 2005).
Burnett commenced this legal malpractice action on September 3, 2004. The gravamen of the Complaint is that Burnett is incarcerated and deprived of his freedom because of South's negligent representation of him in the appeal of the criminal case. South filed a Tenn. R. Civ. P. 12.02(6) Motion to Dismiss based on the fact that Burnett has not yet requested or attained post-conviction relief. The trial court granted the Motion to Dismiss, from which Burnett appeals.
He additionally contends that Burnett's actions deprived him of the fruits of diligent and skillful legal work, judicial relief, including but not limited to, dismissal of charges, freedom, relief from emotional and psychological stress, "and all other positive benefits associated to diligence and skill on the part of the Defendant."
STANDARD OF REVIEW
The purpose of a Tenn. R. Civ. P. 12.02(6) Motion to Dismiss is to determine whether the pleadings state a claim upon which relief can be granted. A Rule 12 motion only challenges the legal sufficiency of the complaint. It does not challenge the strength of the plaintiff's proof. See Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn. 1999). In reviewing a motion to dismiss, we must liberally construe the complaint, presuming all factual allegations to be true and giving the plaintiff the benefit of all reasonable inferences. See Pursell v. First American National Bank, 937 S.W.2d 838, 840 (Tenn. 1996); see also Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696-97 (Tenn. 2002). Thus, a complaint should not be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his or her claim that would warrant relief. (emphasis added) See Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999); Fuerst v. Methodist Hospital South, 566 S.W.2d 847, 848 (Tenn. 1978). Making such a determination is a question of law. Our review of a trial court's determinations on issues of law is de novo, with no presumption of correctness. Frye v. Blue Ridge Neuroscience Center, P.C., 70 S.W.3d 710, 713 (Tenn. 2002); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000); Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).
ANALYSIS
In a legal malpractice action arising out of civil proceedings, a plaintiff must show (1) that his attorney owed him a duty, (2) that the attorney breached that duty,(3) that the plaintiff suffered damages, and (4) that the attorney was the factual and legal cause of the plaintiff's damages. See Parnell v. Ivy, 158 S.W.3d 924, 927 (Tenn.Ct.App. 2004) (citing Gibson v. Trant, 58 S.W.3d 103, 108 (Tenn. 2001)). In a malpractice action arising out of an attorney's representation in a criminal proceeding, the plaintiff must also show that he obtained relief in a final post-conviction judgment. Gibson v. Trant, 58 S.W.3d 103, 108 (Tenn. 2001). The Gibson Court provide two principal reasons for the additional element. As the Court explained, the validity of criminal convictions should not be tested in the civil arena because first, "depending on the relief sought, civil damage remedies, if awarded, may necessarily imply that the criminal courts reviewing the conviction erred," and second, the "criminal justice system itself provides adequate redress for any error or omission." Gibson, 58 S.W.3d at 112 (citations omitted).
The foregoing notwithstanding, the Gibson Court did not make the post-conviction element a prerequisite to the commencement of a legal malpractice action that arose from representation in a criminal proceeding. To the contrary, the Court recognized the procedural hurdle, a "Catch 22," presented by the one year statute of limitations for legal malpractice. See Gibson, 58 S.W.3d at 117. This is due to the fact the statute begins to run when the cause of action accrues, that being when the "plaintiff knows or in the exercise of reasonable care and diligence should know that an injury has been sustained as a result of wrongful or tortious conduct by the defendant." Id. (citing John Kohl Co. v. Dearborn Ewing, 977 S.W.2d 528, 532 (Tenn. 1998).
Catch-22 was the title of a satirical, loosely based historical fiction novel by the American author Joseph Heller. As used in the book, "Catch-22" was a military rule, the self-contradictory circular logic of which, for example, prevents anyone from avoiding combat missions. The phrase "Catch-22" has evolved to mean "a no-win situation" or "a double bind" of any type.
Thus, a client who was convicted in a criminal proceeding may discover that he has a cause of action against his attorney before he can file for or obtain a post-conviction ruling. Gibson, 58 S.W.3d at 117. As the Court explained:
[I]f a plaintiff files his malpractice claim before the post-conviction proceedings have concluded, a trial court has the discretion whether to allow that claim to proceed. See Sanjines, 984 S.W.2d at 911. . . . [T]he clear implication of Sanjines is that a court can-and should-dismiss a frivolous malpractice claim. This is necessary as a matter of fairness to the defendant. It is true, however, that if the trial court decides that the plaintiff's claim should not be dismissed on the pleadings, or on summary judgment, the court must await the outcome of the post-conviction proceeding before deciding whether the case should go to a jury. Depending on the case, this could take several years, which means that for the criminal malpractice case whose merits appear weak but not frivolous, a defense lawyer may have to experience significant delay before the court finds in his favor. We see no way around this difficulty.
Gibson, 58 S.W.3d at 117 (emphasis added).
As is evident from the opinion in Gibson, the Supreme Court recognized the likelihood of a Catch-22 scenario for a plaintiff who must file a legal malpractice action prior to seeking or obtaining post-conviction relief. The Gibson opinion tells us it is not a prerequisite that a plaintiff obtain post-conviction relief prior to commencing an action for malpractice. Instead, it merely requires that the plaintiff's post-conviction relief action be resolved or abandoned prior to deciding whether the malpractice action should to go to trial. Gibson, 58 S.W.3d at 117.
This is due to the fact it is most impractical to expect a defendant in a criminal proceeding to be able to obtain post-conviction relief within the requisite time frame. Indeed, in some situations it may be premature to file a petition for post-conviction relief by the time the statute of limitations in a malpractice action runs.
A plaintiff could forfeit his right or be time barred to pursue post-conviction relief in which event the trial court could rule, without further delay, on a motion to dismiss a malpractice action pursuant to Tenn. R. Civ. P. 12.02(6).
South's Motion to Dismiss was based solely on the post-conviction element, and the trial court limited its ruling to that issue. Based upon our understanding of Gibson, we have concluded the trial court erred as a matter of law by dismissing Burnett's action. Instead, the trial court should have afforded Burnett the requisite period of time to file a petition for post-conviction relief and, assuming such relief is timely filed, then await the outcome of the post-conviction proceeding before deciding whether the malpractice action should go forward or be dismissed.
The trial court stated in its ruling: "Upon review of the file, the motion for dismissal including case law as supplied by the defendant, this court is of the opinion that the motion for dismissal is well taken. . . ."
For the reasons stated above, we vacate the Order dismissing Burnett's action and remand for further proceedings consistent with this opinion. Costs of appeal are assessed against Daryl M. South.
Whether Burnett has filed a petition for post-conviction relief since the trial court ruled on the motion at issue in this matter is not for this Court to consider. That fact, along with all other relevant facts, is for the trial court to consider on remand.