Joseph C. Barna v. W. Martin Seiler

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 6, 2009 Session

JOSEPH C. BARNA v. W. MARTIN SEILER

Appeal from the Circuit Court for Davidson County

No. 06C-996 Walter C. Kurtz, Judge

No. M2008-01573-COA-R3-CV - Filed April 19, 2011

An investor who lost money on stock transactions filed a claim against his stockbroker that

was dismissed in arbitration. The investor then filed a complaint for legal malpractice

against the attorney who had represented him in the arbitration proceeding. The attorney

filed a motion for summary judgment accompanied by his expert affidavit, declaring that in

his representation of the investor he had complied with all applicable standards of legal

professional practice. The investor did not respond with an expert testimony contradicting

the defendant. Following a series of delays, the trial court granted summary judgment to the

defendant attorney after declining to grant another continuance. The former client filed a

motion for relief from judgment, and the trial court denied the motion. After the attorney

voluntarily dismissed his counterclaim, the judgment became final, and the investor appealed.

We affirm.

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

Affirmed

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which R ICHARD H.

D INKINS, J., joined. F RANK G. C LEMENT, J R. filed a dissenting opinion.

Phillip Leon Davidson, Nashville, Tennessee, for the appellant, Joseph C. Barna.

Byron K. Lindberg, Karl M. Braun, Nashville, Tennessee, for the appellee, W. Martin Seiler.

OPINION

I. A N A RBITRATION P ROCEEDING AND A M ALPRACTICE C OMPLAINT

According to the allegations of his complaint, Mr. Joseph Barna (“Mr. Barna”)

suffered extensive losses in his IRA and brokerage accounts during the years 2000 and 2001.

He claimed that those losses were attributable to negligent handling of margin calls and IRA

rollovers on the part of his broker, T. D. Waterhouse Services, Inc. In 2003, Mr. Barna filed

a claim with the National Association of Securities Dealers, seeking recovery of his losses

from Waterhouse. His claim was submitted to arbitration.

Prior to the arbitration hearing, Mr. Barna’s attorney withdrew from representation

because he was unable to procure a necessary expert witness. Mr. Barna then retained the

defendant, Mr. Martin Seiler (“Mr. Seiler”) to replace him. Mr. Seiler drafted a letter of

engagement outlining the terms for his representation of Mr. Barna, which the client signed.

Among other things, the letter cautioned Mr. Barna that Mr. Seiler could not guarantee him

a favorable outcome in the arbitration proceeding. Mr. Seiler represented Mr. Barna at the

arbitration hearing, which was conducted on April 18 or 19, 2005. The arbitration panel

dismissed Mr. Barna’s claim and awarded him no damages.

On April 21, 2006, Mr. Barna filed a complaint for legal malpractice against Mr.

Seiler in the Davidson County Circuit Court. Mr. Barna claimed that Mr. Seiler had failed

to represent him “in a reasonable, prudent and/or capable manner, and that the financial

losses he suffered as a result of that failure entitled him to damages in an amount not less

than $200,000.”1 Mr. Seiler filed an answer to the complaint and a counterclaim for

fraudulent misrepresentation on June 14, 2006.

In his counterclaim, Mr. Seiler alleged that Mr. Barna had negligently or intentionally

failed to inform him that he had previously filed claims against Charles Schwab & Company

in 1989 for financial losses likewise related to his use of margin calls, that the claims had

gone to arbitration, and that the arbitration board had found Schwab & Company not liable

and dismissed all claims.

On November 17, 2006, Mr. Seiler filed a motion for summary judgment accompanied

by his expert affidavit. He described his professional history and qualifications and his

dealings with Mr. Barna. Mr. Seiler then swore that in his representation of Mr. Barna, he

had complied with the applicable standard of legal professional practice, that he did not

breach any legal duty owed to his client during the course of his representation, and that to

“a reasonable degree of legal certainty,” nothing he did with respect to the legal services he

provided to Mr. Barna proximately caused his client’s losses when the arbitration panel

1

This was not the only time that Mr. Barna filed a legal malpractice claim against an attorney who

represented him in an arbitration proceeding before the National Association of Securities Dealers. See

Barna v. Preston Law Group, No. M2008-02560-COA-R3-CV, 2009 WL 2616038 (Tenn. Ct. App. Aug. 25,

2009) (no Tenn. R. App. P. 11 application filed).

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awarded him no damages.

The summary judgment motion was scheduled to be heard on January 12, 2007. The

motion was not heard on that date, and the judge assigned to the case subsequently recused

himself. Mr. Barna’s attorney had quit his law practice and withdrawn as his counsel, and

Mr. Barna retained a new attorney. The new attorney attested to the court that he would be

able to defend the pending motion within thirty days, and he asked for a continuance.

Because the case had to be reassigned, the recusal essentially functioned as an indefinite

continuance.

On February 26, 2007, Mr. Barna’s new attorney filed another motion to continue and

an affidavit in which he stated that he had had the case for less than 90 days and had not yet

received the complete file from his client or from the previous counsel. He also stated that

he had been diligently seeking to locate an attorney to provide an expert affidavit to counter

Mr. Seiler’s affidavit, and that “[a]s of February 25, 2007, I am in contact with an attorney

who has agreed to participate for purposes of testifying as an expert witness in this matter,

but who cannot attend to the matter for several days.” Mr. Barna also filed his own affidavit,

in which he denied some of the factual allegations in Mr. Seiler’s affidavit.

A hearing on the summary judgment motion was scheduled for March 2, 2007, but

was not conducted until March 23, 2007. At the hearing, Mr. Barna again asked for a

continuance because he had not yet managed to obtain the testimony of an expert. The trial

court did not specifically rule on the motion for continuance, but entered an order on April

2, 2007, granting summary judgment to Mr. Seiler and dismissing Mr. Barna’s case with

prejudice.

Mr. Barna subsequently retained yet another attorney, who filed a motion on July 25,

2007, requesting relief from the court’s judgment pursuant to Tenn. R. Civ. P. 60.02(5). The

attorney argued that Mr. Barna’s previous attorney had found an expert but was unable to

obtain an opinion from him in time to oppose the summary judgment motion, that this created

“a case of extreme hardship,” and thus that the trial court should have given him additional

time to respond.

After hearing argument by counsel and reviewing the record, the trial court decided

that it had to treat Mr. Barna’s motion under Tenn. R. Civ. P. 54.02 rather than as a Rule

60.02 motion for relief from a final judgment.2 Mr. Barna did not submit an expert affidavit

to the court with his motion, even though four additional months had passed since summary

2

The judge who rendered the summary judgment subsequently recused herself from further proceedings. Thus,

the judge who ruled on Mr. Barna’s Rule 60.02(5) motion was the third judge to participate in this case.

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judgment was entered. The trial court found that Mr. Barna had not satisfied the burden for

relief from the summary judgment under either Rule 54 or Rule 60. Mr. Seiler subsequently

dismissed his counter-claim without prejudice, thereby rendering the trial court’s decision

final and setting the stage for this appeal.

II. L EGAL M ALPRACTICE

“In order to prove legal malpractice, a plaintiff must establish that (1) the defendant

attorney owed a duty to plaintiff; (2) the attorney breached that duty; (3) the plaintiff suffered

damages; and (4) the breach proximately caused the plaintiff’s damage.” Tenn-Fla Partners

v. Shelton, 233 S.W.3d 825, 830 (Tenn. Ct. App. 2007) (citing Horton v. Hughes, 971

S.W.2d 957, 959 (Tenn. Ct. App. 1998)); Blocker v. Dearborn & Ewing, 851 S.W.2d 825,

827 (Tenn. Ct. App. 1992).

In a legal malpractice case, the defendant attorney’s duty is to serve the client with

“that degree of care, skill, and diligence which is commonly possessed and exercised by

attorneys practicing in the same jurisdiction.” Sanjines v. Ortwein and Assoc., P.C., 984

S.W.2d 907, 910 (Tenn. 1998). Thus, the elements of duty and of breach of duty in a legal

malpractice case are measured by the applicable standard of professional practice. Cleckner

v. Dale, 719 S.W.2d 535, 540 (Tenn. Ct. App. 1986).

If that standard is beyond the knowledge of an ordinary layperson, then the testimony

of an expert witness is required to prove the applicable standard of practice and that the

defendant’s conduct fell below that standard. Bursack v. Wilson, 982 S.W.2d 341, 343

(Tenn. Ct. App. 1998); Cleckner v. Dale, 719 S.W.2d at 540. In a legal malpractice case, an

attorney is entitled to render an expert opinion on his own behalf. Hunter v. Cohen, 55

S.W.3d 571, 574 (Tenn. Ct. App. 2001) (citing Cleckner v. Dale, 719 S.W.2d 535 (Tenn. Ct.

App. 1986)

Mr. Barna’s allegations in this case relate to securities arbitration proceedings. He has

alleged, among other things, that Mr. Seiler failed to recognize which securities are

marginable and which are not, failed to recognize the difference between a house call and

an exchange call, and failed to show the arbitrators that Waterhouse had not followed NY

Stock Exchange rules and its own rules in connection with the “Grossover extension of

credit.” The standard of professional legal practice in such matters is clearly beyond the

knowledge of ordinary laymen. Consequently, the elements of duty, breach of duty, and

causation were required to be shown by expert testimony.

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III. S UMMARY J UDGMENT

Summary judgment is appropriate if “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.” Tenn. R. Civ. P. 56.04; Blair v. West Town Mall, 130 S.W.3d 761, 764

(Tenn. 2004); Pero’s Steak & Spaghetti House v. Lee, 90 S.W.3d 614, 620 (Tenn. 2002);

Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993).

A trial court’s decision on a motion for summary judgment enjoys no presumption of

correctness on appeal. Martin v. Norfolk Southern Railway Co., 271 S.W.3d 76, 84 (Tenn.

2008); Blair v. West Town Mall, 130 S.W.3d at 763 (Tenn. 2004). We review the summary

judgment decision as a question of law. Id. Accordingly, this court must review the record

de novo and make a fresh determination of whether the requirements of Tenn. R. Civ. P. 56

have been met. Eadie v. Complete Co., Inc., 142 S.W.3d 288, 291 (Tenn. 2004); Blair v.

West Town Mall, 130 S.W.3d at 763.

To be entitled to summary judgment, a defendant moving party must either (1)

affirmatively negate an essential element of the non-moving party’s claim or (2) show that

the nonmoving party cannot prove an essential element of the claim at trial. Hannan v. Alltel

Publishing Co., 270 S.W.3d 1, 9 (Tenn. 2008). If the party seeking summary judgment

makes a properly supported motion, the burden shifts to the nonmoving party to set forth

specific facts establishing the existence of a genuine issue of material fact. Martin, 271

S.W.3d at 84; Hannan, 270 S.W.3d at 5; Staples v. CBL & Associates, 15 S.W.3d 83, 86

(Tenn. 2000) (citing Byrd v. Hall, 847 S.W.2d at 215).

In the case before us, Mr. Seiler testified as to his qualifications, his experience in this

area of law, his knowledge of the applicable standard of care, and some facts regarding his

representation of Mr. Barna, setting out an account of the arbitration proceedings. He then

stated:

All legal services I provided to Mr. Barna were given in accordance with the

standard of acceptable legal professional practice and with the degree of skill,

care, diligence, learning, and experience ordinarily used, possessed, and

practiced by other attorneys skilled in securities law and in arbitration related

to securities law and in arbitration related to securities law in the State of

Tennessee on or about the times material herein.

Mr. Seiler further stated that in his opinion, nothing he did or did not do with respect

to the legal services he provided to Mr. Barna caused the losses his client suffered in the

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arbitration proceeding.

In response, Mr. Barna did not file an expert affidavit opining that Mr. Seiler had

breached the duty of care. Instead, he presented his own affidavit, containing his own

opinions as to alleged deficiencies in Mr. Seiler’s performance before the arbitration panel.

Mr. Barna is not an attorney, and thus is not considered competent to testify about the

standard of care applicable to those in the legal profession. In order to given an opinion on

the standard of care applicable to a profession, one must be familiar with it. Chapman v.

Bearfield, 207 S.W.3d 736, 739-40 (Tenn. 2006). Mr. Barna’s conclusions as to the standard

of care and any alleged breach thereof in Mr. Seiler’s representation are, therefore,

inadmissible. Horton v. Hughes, 971 S.W.2d 957, 960 (Tenn. Ct. App. 1998) (citing City

Savings Bank v. Kensington Land Co., 37 S.W. 1037, 1039 (Tenn. Ch. App. 1896)).

Because Mr. Barna did not furnish expert testimony to contradict Mr. Seiler’s

testimony, Mr. Barna failed to present competent evidence to create a genuine issue of

material fact. However, Mr. Barna would have had that burden only if Mr. Seiler’s affidavit

was sufficient to shift the burden of presenting conflicting expert evidence to Mr. Barna. If

it was, summary judgment was properly granted. See Bowman v. Henard, 547 S.W.2d 527,

530 (Tenn. 1977) (summary judgment is proper in a professional malpractice case if the only

issue is one which requires expert testimony and there is no expert response to an affidavit

by an expert).

IV. S UFFICIENCY OF E XPERT A FFIDAVIT

It has long been the rule that affidavits of defendant professionals are sufficient to

support a motion for summary judgment and to shift the burden to the plaintiff to come

forward with competent expert proof showing there is a dispute. Miller v. Birdwell, 327

S.W.3d 53, 60 (Tenn. Ct. App. 2010) (“It is well established that the affidavits of the

defendant physicians are sufficient by themselves to support a motion for summary

judgment.”) (citing Kenyon v. Handal, 122 S.W.3d 743 (Tenn. Ct. App. 2003)).

Mr. Seiler’s expert affidavit addressed two essential elements of Mr. Barna’s claim:

that Mr. Seiler breached his duty to represent Mr. Barna with “that degree of care, skill, and

diligence which is commonly possessed and exercised by attorneys practicing in the same

jurisdiction,” and that Mr. Barna’s damages were caused by any breach of duty by Mr. Seiler.

As a general rule, a defendant’s affidavit stating that, in his or her professional opinion,

nothing done by the professional violated the applicable standard of care or cause the alleged

injury has been held sufficient to negate elements of negligence or malpractice in the

plaintiff’s case and require that plaintiff come forward with expert evidence creating a

dispute that warrants a trial. Hager v. Larson, 2010 WL 532856 (Tenn. Ct. App. Feb. 16,

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2010) (citing Hessmer v. Miranda, 138 S.W.3d 241, 244 (Tenn. Ct. App. 2003)) (citing

Finister v. Humboldt Gen. Hosp., Inc., 970 S.W.2d 435, 438 (Tenn. 1998)).

While affidavits by professionals which “clearly and completely” refute a plaintiff’s

claims “afford a proper basis for dismissal of an action on summary judgment in the absence

of proper responsive proof by affidavit or otherwise,” Miller, 327 S.W.3d at 60 (quoting

Bowman, 547 S.W.2d at 531), there is authority holding that merely conclusory statements,

whether from experts or otherwise, are not sufficient. Generally, “[c]onclusory assertions”

in support of a defendant’s motion for summary judgment are not sufficient to shift the

burden to the plaintiff to come forward with evidence to create a material dispute of fact.”

Giggers v. Memphis Housing Auth., 277 S.W.3d 359, 363 (Tenn 2009); Blanchard v. Kellum,

975 S.W.2d 522, 525 (Tenn. 1998); Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993).

The question before us is whether the affidavit from the defendant attorney, Mr.

Seiler, was nonconclusory enough to shift the burden of responding with expert proof to the

plaintiff, Mr. Barna. In examining this question, it must be remembered that with any expert,

the primary evidence provided is the expert’s opinion. Opinion, of course, is not really a fact,

and is, by its nature, somewhat conclusory.

Additionally, an affidavit filed in a summary judgment proceeding must meet the

requirements of Tenn. R. Civ. P. 56.06, which are that the affidavit must be based on the

affiant’s personal knowledge; that the affiant’s statement must otherwise be admissible in

evidence; and that the affiant is competent to testify regarding the substance of the affidavit.

Church v. Perales, 39 S.W.3d 149, 166 (Tenn. Ct. App. 2000). An expert’s affidavit must

also show that the affiant is qualified to render an expert opinion and that the evidence of the

expert will substantially assist the trier of fact should the matter go to trial. Id. Mr. Barna

has not challenged Mr. Seiler’s qualifications or personal knowledge, nor has he attacked the

sufficiency of the affidavit.3 We find no deficiency in Mr. Seiler’s affidavit on the basis of

these requirements either.

In his affidavit, Mr. Seiler testified that he has practiced law in Tennessee for twenty

years, that his practice has involved ERISA cases, and that those cases have often involved

securities and securities-related law. He also testified that “for the past four or five years my

practice has involved securities related arbitration.” He also set out an account of his

representation of Mr. Barna and of the arbitration proceedings at issue. We conclude these

statements demonstrate his testimony is based on personal knowledge, that he is competent

to testify as to the matters in the affidavit, and that he is qualified to render an expert opinion

3

The question of whether Mr. Seiler’s affidavit was sufficient to shift the evidentiary burden to Mr.

Barna was raised by the author of the dissent filed herein.

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regarding the applicable standard of care and whether he breached that standard. Mr. Seiler

opined that the legal services he provided Mr. Barna met the applicable standard of

acceptable legal professional practice for securities law and arbitration related to securities

law.4

It is also important to keep in mind that the question here is simply whether Mr.

Seiler’s affidavit was sufficient to shift the burden to Mr. Barna to come forward with

countervailing expert evidence in order to escape summary judgment. A brief survey of

recent opinions addressing the issue of shifting the summary judgment evidentiary burden

with a defendant expert’s affidavit that he or she did not breach the applicable standard of

care indicates that Mr. Seiler’s affidavit was sufficient to require response by expert affidavit

from Mr. Barna.

We begin with a case in which the Tennessee Supreme Court held that a doctor

defendant’s affidavit was not sufficient to shift the evidentiary burden to the patient plaintiff

as to one cause of action. Blanchard v. Kellum, 975 S.W.2d 522. However, the

insufficiency in that case was not that the affidavit was conclusory. Instead, the Court found

that the doctor did not shift the burden because it did not actually address the specific cause

of action, medical battery. Id. at 525. After explaining the difference between lack of

informed consent and medical battery as causes of actions, the Court stated, “The primary

consideration in a medical battery case is simply whether the patent knew of and authorized

a procedure. This determination does not required the testimony of an expert witness.” Id.

at 524. Next, the Court considered the summary judgment with regard to the patient’s

medical battery claim, stating:

Dr. Kellum’s affidavit contains a conclusory statement that she acted “in a

recognized and approved form . . . and that such treatment would not and did

not fail to meet the standard of care . . .” The affidavit is non-responsive to

the plaintiff’s allegation that Dr. Kellum failed to inform the plaintiff of her

intention to perform a full extraction during the appointment . . . Moreover,

Dr. Kellum’s brief relies on a theory of implied consent. (emphasis added).

...

A theory of implied consent does not negate an essential element of the

plaintiff’s claim. The defendant must proffer admissible evidence establishing

that the plaintiff authorized a full extraction to trigger the plaintiff’s burden,

4

Mr. Seiler further stated that in his opinion, nothing he did or did not do with respect to the legal

services he provided to Mr. Barna caused the losses his client suffered in the arbitration proceeding, thus

addressing the causation element of a malpractice claim.

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....

Id. at 525.

Similarly, in Weaver v. Pardue, 2010 WL 4272678 (Tenn. Ct. App. Oct. 28, 2010),

this court found the defendant doctor’s affidavit sufficient to shift the evidentiary burden

with regard to a plaintiff’s malpractice claim,5 but insufficient with regard to the serious

mental injury element of her claim for outrageous conduct arising from an alleged sexual

assault. In distinguishing its holdings based on the different causes of action, the court

explained:

The controlling distinction, however, is that Doctor’s self-serving affidavit was

not conclusory with respect to the allegations of medical negligence; it detailed

his alleged treatment of Patient, the facts serving as the basis of his conclusion,

and his qualifications as a medical doctor. See Cornett, supra, at 341 (citation

omitted) (recognizing that the simple fact that an expert’s affidavit is

self-serving does not make it conclusory). . . .

This case presents an altogether different situation with respect to Doctor’s

assertion that his actions did not cause Patient a serious mental injury. Doctor

has not alleged undisputed facts to show that he examined the patient with

respect to the alleged mental injury, treated the patient for the alleged mental

injury, maintained contact with the patient following the conduct allegedly

causing the injury, or possessed the requisite knowledge and expertise to offer

an opinion on whether his alleged conduct caused the alleged injury. Doctor’s

affidavit does not establish a factual basis upon which to establish the

non-existence of Patient’s serious mental injury or to determine its cause; his

assertions are wholly conclusory.

Weaver, 2010 WL 4272678, at *8.

Obviously, then, an affidavit that does not address a requisite element of the plaintiff’s

cause(s) of action is not sufficient to shift the evidentiary burden, because it does not negate

an essential element. In the case before us, Mr. Seiler’s affidavit specifically addresses the

5

Although technically the trial court’s grant of summary judgment on the medical malpractice claims

was not appealed, this court stated approved the trial court’s determination that the doctor’s affidavit was

sufficient to warrant summary judgment on that claim by explaining why the affidavit was sufficient.

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duty and breach of duty elements of Mr. Barna’s malpractice claim.6 Additionally, an

affidavit is considered “conclusory” if it does not indicate a factual basis for the opinion.

Herein, Mr. Seiler established the factual basis, i.e., his personal knowledge of his actions

in his representation of Mr. Barna.

Defendant expert affidavits similar to that provided by Mr. Sieler, at least as the

specificity of those affidavits is described in the opinions, have been found sufficient to shift

the evidentiary burden and support the grant of summary judgment.

Recently, in Miller v. Birdwell, 327 S.W.3d 53, this court addressed a plaintiff’s

argument that the defendant doctors’ affidavits contained nothing more than conclusory

allegations and found the affidavits sufficient. The opinion described the defendant doctors’

affidavits as explaining in detail their background and qualifications, explaining the care

and treatment provided to the patient, and each stating that “that the standard of care was

to do exactly what he had done, that he did not deviate from the standard of care, and

the no deviation on his part caused any injury or harm to [the patient].” Miller, 327

S.W.3d at 60-62 (emphasis added).

In another recent opinion, Zulueta v. Lassiter, 2010 WL 3852375 (Tenn. Ct. App.

September 30, 2010), this court again looked at a defendant doctor’s expert affidavit in

support of summary judgment in a medical malpractice action. We described the affidavit

as stating

that she is a medical doctor who has practiced medicine in Tennessee since

1991, that she specializes in internal medicine and family care, and that

she routinely performs physical Fitness for Duty Examinations as an

“essential and integral part” of her practice. It also states that she is familiar

with the recognized standards of acceptable professional practice of

medicine and the performance of FFDEs in Davidson County, Tennessee,

that the FFDE she performed on Plaintiff was performed in compliance

with the accepted standard, and that she caused no harm to Plaintiff.

Zulueta, 2010 WL 3852375, at *4 (emphasis added). We held that the affidavit

affirmatively negated two essential elements of Plaintiff’s claims: (1) that she “acted with

less than or failed to act with ordinary and reasonable care,” and (2) that “as a proximate

result of [her] negligent act or omission, the plaintiff suffered injuries which would not have

otherwise occurred.” Id.

6

As stated earlier, the affidavit also addresses the causation element.

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In Hutter v. Cohen, 55 S.W.3d 571 (Tenn. Ct. App. 2001), a legal malpractice case,

this court held that the defendant attorneys’ affidavits were sufficient to shift the burden to

the plaintiff client to come forward with a disputing expert’s affidavit because those

affidavits, even though broadly worded, “establish that they measured up to the degree of

special skill in representing this plaintiff so as to meet the standard for a professional in that

community. Hutter, 55 S.W.3d at 574 (citing Cleckner v. Dale, 719 S.W.2d 535 (Tenn.

App.1986)). Earlier in the opinion, the court had described the defendant expert affidavits

in some greater detail, explaining that those affidavits essentially stated that the defendant

was “familiar with the facts of the case and with the facts surrounding the

aforementioned representation” and that each attorney stated it was his professional

opinion,

within a reasonable degree of professional certainty ... and based upon my

personal knowledge and my review of the facts involved in the above

captioned case, I did not deviate from or fall below the legally accepted

standard of practice for attorneys practicing law in Blount County,

Tennessee, and similar communities, nor did I fail to exercise that degree of

care, skill, and diligence which is commonly possessed and exercised by

attorneys in practice in this jurisdiction, relative to my aforementioned

representation of Jack Hutter.

Id. at 573 (emphasis added).

Glass v. Underwood, 2005 WL 1669893 (Tenn. Ct. App. July 18, 2005), was also a

legal malpractice case in which this court determined, after applying the shifting burden

analysis later reaffirmed in Hannan, that the defendant attorney’s affidavit was sufficient to

shift the evidentiary burden. The court stated, “As a licensed attorney practicing in Knox

County, Mr. Underwood is qualified as an expert to attest to the standard of care required of

attorneys in his position and it is our determination that the above cited affidavit filed by Mr.

Underwood stating that he ‘complied with the standard of care for lawyers in such

litigation in the Knoxville, Knox County, Tennessee community’ was sufficient to shift the

burden to Mr. Glass.” Id., 2005 WL 1669893, at *4. (emphasis added.)

The court had described the affidavit in more detail, quoting from it as to the lawyer’s

professional training and that “by virtue of” that training and experience, he was familiar

with the standard of care for lawyers involved in the relevant type of litigation. Id., 2005 WL

1669893, at *2. After briefly describing the matter in which he provided representation and

certain post judgment actions, the attorney’s affidavit further provided:

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It is my opinion that in my preparation and trial of this case that I complied

with the appropriate standard of care for lawyers in such litigation. . . .It is my

opinion as a practicing attorney that there was no negligence on my part in the

preparation and trial of this case.

Glass, 2005 WL 1669893, at *2 (emphasis added).

In Doe v. Duncan, 2008 WL 4367314 (Tenn. Ct. App. Sept. 18, 2008), this court

affirmed the grant of summary judgment to defendant attorneys in a legal malpractice case.

The first question was whether the attorneys’ affidavits were sufficient to shift the burden

to the client. Both attorneys stated they had years of complex trial experience and were

“familiar with the standard of care for attorneys in cases such as [plaintiff’s litigation].”

They described some of the actions they had taken during the representation, and stated the

“appropriate standard of care was exercised by us both in connection with preparation of the

case for trial and in settlement negotiations leading to settlement of the case.” Duncan, 2008

WL 4367314, at *1-2 (emphasis added).

Based upon our review of these opinions and their description of the particular

affidavits involved, we find that Mr. Seiler’s affidavit does not differ in any significant way

from the affidavits found sufficient in these and similar cases, and it is no more conclusory.

In order to “clearly and completely” refute a plaintiff’s claims of professional malpractice,

and thereby shift the evidentiary burden to the plaintiff in a summary judgment motion

determination, a defendant expert’s affidavit will be sufficient if it: (1) establishes the

affiant’s knowledge of the applicable standard of care; (2) demonstrates the basis for that

knowledge; (3) describes, even briefly, the actions taken by the affiant in the course of the

professional services rendered to plaintiff; (4) and states the opinion that the actions met the

standard of care, or that nothing done by affiant breached the standard of care. It is not

necessary that the affidavit address every allegation in the complaint; nor is it necessary that

a lawyer defendant describe the basis for every decision made or action taken. It is sufficient

that the defendant provide an expert opinion as to standard of care and breach thereof that

meets the criteria for such evidence.7

7

We are aware that there are factual disputes between Mr. Seiler’s affidavit and Mr. Seiler’s

complaint and response. Mr. Barna refers to those disputes as a reason to reverse the grant of summary

judgment. However, it is not necessary that those disputes be resolved in order to determine standard of care

and breach by expert opinion. In other words, since Mr. Seiler testified as to what he did in representing Mr.

Barna and that in his opinion he did not breach the applicable standard of care, it is not necessary to

determine whether or not certain factual allegations by Mr. Barna are true unless or until he provides expert

opinion that, if those allegations are true, Mr. Seiler breached the applicable standard of care.

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Accordingly, we conclude that Mr. Seiler’s affidavit was sufficiently specific to shift

the burden to the plaintiff to come forward with countervailing expert evidence regarding the

standard of care and its breach. Mr. Barna failed to provide such evidence.

V. C ONTINUANCE

While Mr. Barna cannot disagree with the fact that he did not provide expert

testimony disputing Mr. Seiler’s affidavit, he argues that the trial court should have given

him more time to obtain the necessary expert evidence.

By dismissing Mr. Barna’s claim on summary judgment, the trial court implicitly

denied his motion for a continuance, which, if it had been granted, would have given him

more time to obtain an expert affidavit. Review of a trial court’s refusal to grant a

continuance is conducted under the abuse of discretion standard. Morrow v. Drumwright,

304 S.W.2d, 313, 315 (Tenn. 1957); Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn.

Ct. App. 1997); Tipton v. Smith, 593 S.W.2d 298, 301 (Tenn. Ct. App. 1979). A court will

be found to have abused its discretion “only when it applies an incorrect legal standard, or

reaches a decision which is against logic or reasoning that causes an injustice to the party

complaining.” Eldridge v. Eldridge, 42 S.W.2d 82, 85 (Tenn. 2001).

A prime factor for a trial court to consider in ruling on a motion for continuance is the

age of the action. Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn. Ct. App. 1982). Mr.

Barna argues that it is not unusual for a case to go on for longer than a year before it reaches

a dispositive phase, and thus that the trial court abused its discretion in denying a continuance

only eleven months after his complaint was filed. However, continuances are not customarily

granted merely as a matter of course, State v. Melson, 638 S.W.2d 342, 359 (Tenn. 1982).

In this case, there was a series of delays that were functionally equivalent to continuances as

Mr. Barna changed attorneys and as different judges recused themselves. The trial court was

entitled to factor those delays into its determination on Mr. Barna’s most recent motion for

continuance.

Mr. Barna filed his complaint on April 21, 2006. Mr. Seiler filed his motion for

summary judgment on November 27, 2006. The motion was scheduled to be heard on

December 12, 2006, but was not heard at that time. On December 29, 2006, more than eight

months after Mr. Barna filed his complaint, his new attorney announced that he would be

prepared to defend the motion in thirty days and asked for a continuance.

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The summary judgment motion hearing was set for March 2, 2007, over two months

after Mr. Barna’s attorney announced that he was prepared to defend the motion in thirty

days. As it turned out, the motion was rescheduled for March 23, 2007, thus giving Mr.

Barna an additional twenty-one days to respond to the summary judgment motion and

supporting expert affidavit.

A party who is unprepared for a trial or other scheduled proceeding may be granted

a continuance if he can demonstrate diligence in trying to prepare. See Morrow v.

Drumwright, 304 S.W.2d at 315. “Whether a continuance should be granted is determined

on the basis of the diligence or lack of same.” Barber & McMurry, Inc. v. Top-Flite

Development Corp. Inc., 720 S.W.2d 469, 471 (Tenn. Ct. App. 1986). See also Lethco v.

Huffman, No. 03A01-9610-CV-00340, 1997 WL 280044 (Tenn. Ct. App. May 28, 1997)

(continuance denied at summary judgment stage of medical malpractice case when plaintiff

failed to produce promised expert affidavit).

As we noted above, Mr. Barna’s attorney stated in December of 2007 that he would

be ready to defend the summary judgment motion in thirty days, that he was diligently

searching for an expert willing to testify, and that he had contacted such an expert, but that

he needed a few more days to obtain the expert’s affidavit. In subsequent proceedings,

neither he nor Mr. Barna’s successor attorney ever identified the purported expert, nor did

they explain why the promised affidavit was not produced. Thus, despite his attorney’s

assertion of diligence, Mr. Barna produced no evidence to give the court confidence that a

further delay would result in the production of the evidence he sought.

In light of the amount of time that elapsed between Mr. Seiler’s motion for summary

judgment and the hearing on the motion, the representations of Mr. Barna’s attorney as to his

near-readiness for the hearing, and the failure to offer any explanation during the summary

judgment hearing as to the reason or reasons why the promised expert affidavit could not be

produced, the trial court did not abuse its discretion in declining to grant Mr. Barna more

time to obtain the testimony of an expert.

V I. T HE R ULE 54.02 M OTION

More than three months after entry of the order granting summary judgment to the

defendant, Mr. Barna filed a Tenn. R. Civ. P. 60.02(5) motion for relief from a final

judgment. The court treated the motion as a Tenn. R. Civ. P. 54.02 motion for relief from

a judgment that is less than final and denied Mr. Barna’s motion, declaring it to be without

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merit whether considered under Rule 54.02 or Rule 60.02.

The trial court correctly concluded that the dismissal of Mr. Barna’s complaint was

not a final order since that order had not disposed of Mr. Sieler’s countercomplaint. An order

or judgment which is not final is “subject to revision at any time.” Tenn. R. Civ. P. 54.02.

“Rule 54.02 applies to cases, such as this one, in which judgment was not entered as to all

of the defendants or claims.” Harris v. Chern, 33 S.W.2d 741, 743 (Tenn. 2000). The

Tennessee Rules of Civil Procedure “allow for . . . motions ‘to revise’ a non-final partial

judgment, see Tenn. R. Civ. P. 54.02.” Id.

Our research reveals no Tennessee case law regarding the standard a trial court

should apply in ruling on a Rule 54.02 motion to revise. Cases analyzing Rule

59.04 motions to alter or amend, however, offer some guidance in determining

the standard for revising non-final orders. See Thomas v. Swindle, 676 So.2d

333, 335 (Ala. Civ. App.1996) (finding “caselaw concerning Rule 59 motions

to be persuasive authority” in interpreting Rule 54 motions). While the rules

are not synonymous, they are similar in intent and operation. They differ in

that Rule 59.04 addresses final judgments and requires a motion to alter or

amend to be made within 30 days of the entry of judgment. In contrast, Rule

54.02 addresses interlocutory orders. Rule 54.02 confers upon the trial court

“the privilege of reversing itself up to and including the date of entry of a final

judgment.” Louis Dreyfus Corp. v. Austin Co., 868 S.W.2d 649, 653 (Tenn. Ct.

App.1993). Both rules, however, afford litigants a limited opportunity to

readdress previously determined issues and afford trial courts an opportunity

to revisit and reverse their own decisions.

Harris v. Chern, 33 S.W.3d at 744. See also Stovall v. Clarke, 113 S.W.2d 715, 721(Tenn.

2003) (“Cases analyzing Rule 59.04 motions to alter or amend ... offer some guidance in

determining the standard for revising non-final orders. Harris v. Chern, 33 S.W.3d 741, 744

(Tenn.2000)” ); Kenyon v. Handal, 122 S.W.3d at 764 (“we have consistently used its [Rule

54.02] standards to review Tenn. R. Civ. P. 59.02 motions.”)

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In Harris, the Tennessee Supreme Court established the standards applicable to a

Tenn. R. Civ. P. 54.02 motion to revise a partial summary judgment when additional

evidence is presented in support of such a motion to create a dispute of material fact. 8 In

this case, however, Mr. Barna did not submit any new evidence, but contended that the trial

court unfairly refused to give him more time to find an expert to oppose the summary

judgment motion.

Consequently, we must look to the standards generally governing motions to revise

non-final judgments under Rule 54 and motions to alter or amend judgments which have not

yet become final for purposes of appeal under Rule 59, where no additional evidence is

presented.

We review a trial court’s determination regarding whether to grant a Rule 59.04

motion to alter or amend a judgment under an abuse of discretion standard because such

motions are addressed to the trial court’s discretion. Stovall v. Clarke, 113 S.W.3d 715, 721

(Tenn.2003); Henry v. Goins, 104 S.W.3d 475, 479 (Tenn.2003); Ferguson v. Brown, 291

S.W.3d 381, 388 (Tenn. Ct. App. 2008) (citing McCracken v. Brentwood United Methodist

Church, 958 S.W.2d 792, 795 (Tenn. Ct. App.1997)). The trial court is in the best position

to decide whether an order of dismissal should be set aside. Henry v. Goins, 104 S.W.3d at

482.

“The purpose of a Rule 59.04 motion to alter or amend a judgment is to provide the

trial court with an opportunity to correct errors before the judgment becomes final.” In re

M.L.D., 182 S.W.3d 890, 895 (Tenn. Ct. App. 2005). Motions to alter or amend a judgment

pursuant to Tenn. R. Civ. P. 59 may be granted “(1) when the controlling law changes before

a judgment becomes final, (2) when previously unavailable evidence becomes available, or

(3) when, for sui generis reasons, a judgment should be amended to correct a clear error of

law or to prevent injustice.” Whalum v. Marshall, 224 S.W.3d 169, 175 (Tenn. Ct.

App.2006).

8

When additional evidence is submitted in support of a Rule 54.02 motion to revise a grant of

summary judgment, a trial court should consider, when applicable: 1) the movant’s efforts to obtain evidence

to respond to the motion for summary judgment; 2) the importance of the newly submitted evidence to the

movant’s case; 3) the explanation offered by the movant for its failure to offer the newly submitted evidence

in its initial response to the motion for summary judgment; 4) the likelihood that the nonmoving party will

suffer unfair prejudice; and 5) any other relevant factor. Harris v. Chern, 33 S.W.2d at 745

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Because Mr. Barna has not alleged that there was a change in the law or that

previously unavailable evidence was now available, his request for relief must fall into the

third category: that the judgment should be amended to correct a clear error of law or to

prevent injustice. Mr. Barna does not argue that the trial court made an error of law in

granting summary judgment to Mr. Seiler. Instead, he simply argues that his delay in

obtaining an expert’s affidavit was reasonable. When a party seeks either Rule 59.04 or Rule

60.02 relief, the burden of proof is on the moving party. Stovall v. Clarke, 113 S.W.3d at

721; Henry v. Goins, 104 S.W.3d at 482.

Having reviewed the assertions regarding the delay, as well as the record, we conclude

that the trial court acted well within its discretion in denying Mr. Barna’s motion for relief

from judgment.

We also agree with the trial court that Mr. Barna did not demonstrate that he was

entitled to relief under Rule 60.02, even if the court were to consider his motion under that

rule. Because of the importance of finality in litigation, the standard for relief under Rule

60.02 is more stringent than that under Rule 54.02. Decisions on Rule 60.02 motions are also

subject to appellate review under the abuse of discretion standard. Underwood v. Zurich Ins.

Co., 854 S.W.2d 94, 97 (Tenn. 1993); Toney v. Mueller, 810 S.W2d 145, 147 (Tenn. 1991).

Rule 60.02(5) is applicable only to situations that are not covered by the other clauses

in Rule 60.02 or in cases of extreme hardship. Duncan v. Duncan, 789 S.W.2d 557, 564

(Tenn. Ct. App. 1990). A motion for relief from a final judgment under 60.02(5) should be

granted “only in the most unique, exceptional or extraordinary circumstances.” NCNB

National Bank v. Threalkill, 856 S.W.2d 150, (Tenn. Ct. App. 1993) (citing Steioff v. Steioff,

833 S.W.2d 94, 97 (Tenn. Ct. App. 1992)). We do not believe such circumstances have been

shown in the present case, and we conclude that the trial court correctly declared that even

if Mr. Barna’s motion were to be considered under the standards of Rule 60.02(5), it would

have to fail.

Mr. Barna filed his motion almost four months after the court rendered summary

judgment, he failed to submit an expert affidavit with the motion, and he did not offer any

explanation for that failure. A trial court is not required to allow a plaintiff to delay

proceedings indefinitely in the hope of eventually finding the evidence needed to prevail.

The record shows that over fourteen months elapsed between the filing of Mr. Barna’s

complaint and the denial of his final motion, and that he failed to produce an expert affidavit

during that time. The trial court did not abuse its discretion in denying Mr. Barna’s motion.

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VII.

The judgment of the trial court is affirmed. We remand this case to the Circuit Court

of Davidson County for any further proceedings necessary. Tax the costs on appeal to the

appellant, Joseph C. Barna.

_________________________________

PATRICIA J. COTTRELL, JUDGE

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