Xingkui Guo v. Jon David Rogers

04/26/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 17, 2022 Session

XINGKUI GUO v. JON DAVID ROGERS

Appeal from the Circuit Court for Davidson County

No. 18C2570 Thomas W. Brothers, Judge

No. M2020-01209-COA-R3-CV

This appeal concerns a claim of legal malpractice. Xingkui Guo (“Plaintiff”) filed a lawsuit

for legal malpractice in the Circuit Court for Davidson County (“the Trial Court”) against

his former attorney Jon David Rogers (“Defendant”). Defendant filed an answer denying

Plaintiff’s allegations as well as a counterclaim alleging that Plaintiff failed to pay him in

full pursuant to the terms of their agreement. Defendant later filed motions for summary

judgment as to both Plaintiff’s complaint against him and his counterclaim against Plaintiff.

The Trial Court granted Defendant’s motions for summary judgment. Plaintiff appeals.

We hold, inter alia, that there is no genuine issue of material fact necessitating trial. The

undisputed material evidence shows that Plaintiff’s loss in the underlying lawsuit was not

due to negligence in Defendant’s representation. The undisputed material evidence shows

further that Plaintiff breached his retainer agreement with Defendant by failing to pay him

in full pursuant to the terms of the agreement. We affirm the judgment of the Trial Court.

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

Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.

MCCLARTY and KRISTI M. DAVIS, JJ., joined.

Xingkui Guo, Nashville, Tennessee, Pro Se Appellant.

Jon David Rogers, Hendersonville, Tennessee, Pro Se Appellee.

OPINION

Background

In October 2018, Plaintiff filed a complaint in the Trial Court alleging legal

malpractice against his former attorney, Defendant. Plaintiff alleged that Defendant failed

to meet a deadline in Plaintiff’s legal matter; failed to adequately research the matter; held

himself out as Plaintiff’s attorney but did not act in Plaintiff’s best interest; missed filing

deadlines; and lacked understanding of fundamental legal doctrines or procedures.

Plaintiff’s most significant allegation, which he has repeated throughout this case, is that

he lost the underlying lawsuit because Defendant failed to bring to the attention of the trial

judge in that matter, Judge Joe P. Binkley, Jr., Judge of the Fifth Circuit Court for Davidson

County, evidence that a criminal charge against Plaintiff had been dismissed and judicially

expunged. Plaintiff contends this dismissal and judicial expungement was a favorable

outcome for purposes of his malicious prosecution claim. In April 2017, Judge Binkley

entered an order in the underlying case stating as follows, in relevant part:

In regard to this favorable outcome, the court cited Wallace v. Kato in

which the Supreme Court of the United States ruled, “[I]n order-to recover

damages for allegedly unconstitutional conviction or imprisonment, or for

other harm caused by actions whose unlawfulness would render a conviction

or sentence invalid, a § 1983 plaintiff must prove that the conviction or

sentence has been reversed on direct appeal, expunged by executive order

(emphasis added), declared invalid by a state tribunal authorized to make

such determination, or called into question by a federal court’s issuance of a

writ of habeas corpus, 28 U.S.C. § 2254.” 127 S.Ct 1091 (2007). This Court

interprets Wallace to rule that an expungement by executive order or

executive pardon is a favorable outcome for purposes of the Plaintiff’s

Malicious Prosecution claim. However, the Court noted that Plaintiff failed

to show that a judicial expungement (emphasis added) is analogous or treated

also as a “favorable outcome” for the Plaintiff’s malicious prosecution claim.

Therefore, the Defendant[’s] Motion for Summary Judgment as it pertains to

the Malicious Prosecution claim is GRANTED and this claim is dismissed

with prejudice.

For his part, Defendant filed an answer denying Plaintiff’s claim of legal

malpractice as well as a counterclaim for damages. In his counterclaim, Defendant alleged

breach of contract and intentional misrepresentation arising from Plaintiff’s failure to pay

him in full pursuant to the terms of their written retainer agreement. Defendant alleged, in

part:

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At the case at bar, Parties agreed to the representation of Plaintiff by

Defendant for a sum of eight-thousand Dollars ($8,000.00) to carry through

the litigation that had been in progress for, at the time, over three and a half

years. Plaintiff and Defendant negotiated that the payment of said fee would

be divided into three portions to be paid on specific dates. Plaintiff then

unilaterally refused to tender the remainder of the final one-thousand Dollars

($1,000.00) without justification and without any evidentiary basis solely

because Plaintiff claims the terms of the agreement changed without a basis

to allege so. By refusing to honor the full-terms of the retainer agreement,

Plaintiff’s actions cause[d] an injury to Defendant by denying him payments

to the contract as agreed. Such a failure to adhere resulted in an injury to

Defendant for which Plaintiff is responsible.

Additional procedural history unfolded, of which we set out the pertinent events. In

October 2019, Defendant filed a motion for summary judgment, his third in this matter, as

to Plaintiff’s complaint. Defendant’s prior motion for summary judgment failed because

it was not properly supported by a statement of undisputed material facts. Defendant then

filed a statement of undisputed material facts in support of his motion for summary

judgment, which included the following:

1. Plaintiff’s original complaint alleging defamation against the original

defendants in 13C2340 was dismissed solely because an independent set of

facts supporting a count of defamation against the original proposed new

defendants did not exist. At no point did the Order of April 24, 2017 cite any

conduct or error on the part of the Defendant, which caused the dismissal of

the aforementioned count.

2. Plaintiff’s original complaint alleging malicious prosecution against the

original defendants in 13C2340 was dismissed solely because the evidence

did not exist to demonstrate to the court that the Plaintiff enjoyed a favorable

outcome to the alleged prosecution which was alleged to have been

malicious. At no point did the Order of April 24, 2017 cite any conduct or

error on the part of the Defendant, which caused the dismissal of the

aforementioned count.

3. Plaintiff’s original complaint alleging tortious interference with a business

relationship against the original defendants in 13C2340 was dismissed solely

because there were insufficient facts to meet the standard required for a prima

facie case of tortious interference with a business relationship pursuant to

Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 701 (Tenn. 2002).

Specifically, that an existing business relationship with specific third parties

or a prospective relationship with and identifiable class of third persons,

evidence of defendants’ improper motive of improper means and the

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defendants’ knowledge of a relationship (with a third party) and not mere

awareness of the Plaintiff’s business dealings with others in general. At no

point did the Order of April 24, 2017 cite any conduct or error on the part of

the Defendant, which caused the dismissal of the aforementioned count.

4. Plaintiff’s original complaint alleging civil conspiracy with a business

relationship against the original defendants in 13C2340 was dismissed solely

because the Plaintiff failed to provide a sufficient evidentiary basis to

demonstrate that the knowledge the original defendants had with the original

proposed defendants arose to the level of collusion to create a claim of civil

conspiracy. Specifically, the original defendants acknowledged, that the

original defendants and original proposed co-defendants were in

communication as proposed co-defendant Vivian Wang was an interpreter

for the original defendants; however Plaintiff was unable to present evidence

that such a relationship created the requisite elements to satisfy a claim of

civil conspiracy. At no point did the Order of April 24, 2017 cite any conduct

or error on the part of the Defendant, which caused the dismissal of the

aforementioned count.

5. The relation-back argument as the basis to add the original proposed co-

defendants relying on mistake as a legal basis to prevail on said argument,

was denied solely because the identity of the proposed co-defendants was

known or should have been known to the Plaintiff from the inception of the

action as the proposed co-defendants were in communication with the

original defendants as the former was an attorney and interpreter for the

latter. At no point did the Order of April 24, 2017 cite any conduct or error

on the part of the Defendant, which caused the dismissal of the

aforementioned count.

(Footnotes omitted).

Defendant’s motion for summary judgment was set to be heard on January 31, 2020.

On January 21, 2020, Plaintiff filed a motion seeking to continue the summary judgment

hearing. Plaintiff asserted that he needed more time to prepare a response as he only

received a transcript of his November 19, 2019 deposition of Defendant on January 18,

2020. Plaintiff also cited “material and competent” evidence he expected to receive from

attorneys who had been involved in his previous matter. Nevertheless, the January 31,

2020 summary judgment hearing proceeded as scheduled. The Trial Court entered an order

denying Plaintiff’s request for a continuance, stating:

Present were Plaintiff and Defendant. Following the presentment of

exhibit evidence and the submission of an “Order for the Expungement of

Criminal Offender Record” in Case #GS564829, as well as argument from

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both Parties, this Honorable Court did determine that the Plaintiff’s intent to

obtain additional evidence was insufficient to warrant a continuance and that

Defendant’s Motions for Summary Judgment would proceed as docketed.

This Honorable Court took note of the additional time, above and beyond the

thirty-seven (37) day period afforded to Plaintiff in preparation for

Defendant’s Summary Motion hearings scheduled for January 31, 2020.

In February 2020, the Trial Court entered an order granting Defendant’s motion for

summary judgment with regard to Plaintiff’s complaint. The Trial Court stated, as relevant:

Present were Plaintiff and Defendant. Following the presentment of

argument by both Parties, this Court did find the following:

• Plaintiff had failed to respond to Defendant’s “Undisputed Issues of

Material Fact” filed contemporaneously with his Motion for Summary

Judgment. Thus this Court was compelled to treat said Issues of Fact as

admitted.

• The Fifth Circuit Court, in its dismissal of the underlying action, while

being incremental, was entirely predicated upon various legal determination

and reasoning and at no time was there any evidence cited by the Fifth Circuit

to suggest malpractice on the part of Defendant.

• Plaintiff failed to properly respond to Defendant’s Motion for Summary

Judgment with appropriate affidavits or other similarly-suitable proof or

argument.

• Plaintiff has failed to meet the Rye standard of providing sufficient evidence

of the existence of any genuine issue of material fact to support a claim of

legal malpractice against the Defendant.

• A claim of professional malpractice, requires some form of expert opinion,

which the Plaintiff failed to provide.

• In the interests of judicial economy and efficiency, the final dismissal of

Plaintiff’s claim shall be effective upon the final date of disposition of

Defendant’s Counter Claim for breach of contract. However, all claims

brought by Plaintiff are, effective January 31, 2020 rendered null and shall

be dismissed upon the effective date of the disposition of Defendant’s

counter-claim.

Therefore, this Court finds Defendant’s Motion for Summary

Judgment as it pertains to Plaintiff’s action against Defendant as being well-

taken and thus, Defendant’s Motion for Summary Judgment is GRANTED.

Notwithstanding the Trial Court’s grant of summary judgment to Defendant as to

Plaintiff’s complaint, Plaintiff later sought leave to amend his complaint to add additional

claims. The Trial Court denied Plaintiff’s motion to amend in a May 2020 order. Plaintiff

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also filed a motion for leave to file supplemental pleadings, seeking to add a claim of

defamation regarding a statement Defendant made during his deposition. Meanwhile,

Defendant filed a motion for summary judgment with respect to his counterclaim against

Plaintiff. Defendant’s statement of undisputed material facts read:

1. Plaintiff and Defendant entered into a written retainer agreement

specifying that eight-thousand Dollars ($8,000.00) would be paid to

Defendant by Plaintiff at a set of stated dates in installments.

2. Said retainer Agreement specifies that any amendments to the fee structure

or the basis for said fees must be entered into the document.

3. No “acceleration” of Plaintiff’s case as alleged by Plaintiff is stated or

implied in any part of the Retainer, which serves as the sole piece of evidence

establishing the Parties[’] contractual relationship.

(Footnotes omitted). Defendant also filed an affidavit specifying that Plaintiff failed to pay

him in full pursuant to the terms of their agreement. In June 2020, the Trial Court entered

an order granting Defendant’s motion for summary judgment with respect to his

counterclaim and denying Plaintiff’s motion for leave to file supplemental pleadings,

stating in part:

Defendant’s Motion for Summary Judgment

This Honorable Court does find that a legal and enforceable contract

between Plaintiff and Defendant exists as manifested in the writing of the

retainer agreement between Defendant and Plaintiff. That the terms of said

written retainer agreement are the sole contract and terms thereof entered into

between the Parties.

Moreover, Plaintiff has failed to provide any evidence, admissible

under the Parol Evidence Rule, which, in substance, governs the extent to

which parties may introduce evidence of a prior or contemporaneous

agreement to modify, explain or supplement the contract at issue.

Accordingly, this Honorable Court fails to find any evidence proffered or

entered into the record that would allow the Plaintiff to assert that either a

separate verbal or written contract or verbal amendment to the existing

contract exists.

Finally, as there is no enforceable contract or amendment outside the

retainer agreement entered into between the Parties, it is a matter of law alone

as to whether Plaintiff’s failure to satisfy his obligations under the contract

constitute a remedy available at law for the Defendant.

This Honorable Court does find that no genuine issue of material fact

exists and that as a matter of law, Defendant’s Motion for Summary

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Judgment in Favor of Defendant’s Counter-Complaint is WELL-TAKEN

and is HEREBY GRANTED.

Plaintiff’s Motion to Amend

Plaintiff filed his motion as Motion for Leave to File Supplemental

Pleadings. However the nature of the relief sought is that of a motion to

amend, and shall be treated as such.

Plaintiff alleges that a cause of action of defamation, specifically

slander, be added to Plaintiff’s original complaint, alleging legal malpractice,

which was dismissed on January 31, 2020 by granting Defendant’s Motion

for Summary Judgment pertaining to Plaintiff’s Complaint. Plaintiff alleges

that sworn statements, at Defendant’s deposition, conducted by Plaintiff,

constituted said defamation.

This Honorable Court finds that the nature of the allegations raised by

Plaintiff are frivolous as at least one element of defamation, namely

publication, is absent from Defendant’s conduct and thus a claim of

defamation, if otherwise claimed in an original pleading or an amended one,

would not survive a motion to dismiss or summary judgment. Specifically,

publication is not satisfied by statements made in a legal proceeding, for

which a wide latitude of judicial privilege for witnesses and parties exist, but

also, the fact that there is no evidence presented that aside from said

deposition, Defendant did not make any statements, oral or written into the

general public, requires this Honorable Court to conclude that no valid claim

for defamation exists. Moreover, as Plaintiff’s Motion is one of amendment,

the granting of such a motion would also require that Plaintiff’s original

complaint be active before this or another court within Davidson County,

Tennessee. As Plaintiff’s complaint was dismissed through summary

judgment in January of 2020, there is no complaint to amend.

Accordingly, Plaintiff’s Motion to Amend is NOT well-taken.

At this point, there remained outstanding in the case only what the Trial Court

characterized as a motion to alter or amend filed by Plaintiff with respect to the Trial

Court’s order granting Defendant’s motion for summary judgment as to Plaintiff’s

complaint. In August 2020, the Trial Court entered its final order ruling in favor of

Defendant. In its order, the Trial Court stated:

THIS MATTER, came before this Honorable Court on July 10, 2020

for hearing on Plaintiff’s Motion to Alter or Amend the Order of Summary

Judgment entered on or about January 31, 2020 as it pertained to Plaintiff’s

Complaint for legal malpractice.

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Factual Summary

As a brief synopsis of the relevant history of this case, the Court would

state:

1. This action was filed initially with this Honorable Court on or about

October 8, 2018. In the single-count complaint, Plaintiff alleged a claim of

legal malpractice against the Defendant.

2. Defendant filed his answer and counter-complaint on or about

October 15, 2018 alleging as its single-count a breach of contract claim

against Plaintiff for unpaid legal fees.

3. Numerous Case management conferences were heard by the

Special Master, most-notably in May of 2019 for a discovery-dispute

resolution conference.

4. Written discovery between the parties was completed in August of

2019.

5. Plaintiff deposed Defendant on November 19, 2019.

6. Defendant did not engage in depositional discovery.

7. No Party engaged in expert witness depositions and no expert

witnesses were identified or presented to this Honorable Court by either

Party.

8. Defendant did file a Motion for Summary Judgement as it pertained

to Plaintiff’s Complaint in March of 2019 and served the Plaintiff. This

motion was denied as written discovery was not yet complete.

9. Defendant filed a second Motion for Summary Judgment as it

pertained to Plaintiff’s Complaint in August of 2019 and served the Plaintiff,

which was heard on September 27, 2019. This motion was denied as

Defendant failed to include a Statement of Undisputed Material Facts,

mandated under T.R.C.P. 56.

10. Defendant filed a third Motion for Summary Judgment as it

pertained to Plaintiff’s Complaint on October 25, 2019 and served the

Plaintiff. This motion was heard on January 31, 2020. The Court found the

Motion to be well-taken and granted said motion. This Court does

incorporate the facts and ruling of the January 31, 2020 Order into this Final

Order.

11. At the January 31, 2020 hearing this Court took notice of the

failure of Plaintiff to respond to Defendant’s Statement of Undisputed

Material Facts, and thus said statement was admitted. Plaintiff failed to raise

the issue of the Statement of Undisputed Material Facts in his response to

Defendant’s Motion for Summary Judgment nor in his oral arguments before

the Court on January 31, 2020.

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12. Plaintiff, on February 27, 2020, approximately twenty-eight days

after the Order Granting Defendant’s Motion was entered, did file a response

to Defendant’s Statement of Undisputed Material Facts.

13. Defendant filed a Motion for Summary Judgment as it pertained

to Defendant’s Counter-Complaint against Plaintiff on February 1, 2020 and

served the Plaintiff. This Motion was heard, via the video conference

platform Jabber on June 12, 2020. This Court found the Motion to be well-

taken and granted said motion. This Court does incorporate the facts and

ruling of the June 12, 2020 Order into this Final Order.

14. Plaintiff filed a Motion for Leave to Amend pertaining to

Plaintiff’s complaint on May 18, 2020 and served the Defendant. This

Motion was heard in the aforementioned Jabber hearing on June 12, 2020.

The singular Order from that hearing as mentioned in Paragraph 13 is

likewise incorporated, insofar as the facts determined and ruling held, into

this Final Order.

Plaintiff’s Motion to Alter or Amend

1. This Court does find that Plaintiff’s Motion is most-properly

analyzed pursuant to T.R.C.P. 54.02 as it seeks to alter or amend an order of

summary judgment. This determination is made based upon the holding of

the principal case on point Harris v. Chern, which adopts a test for evaluating

the propriety of amending the granting of a summary judgment motion. This

test requires an inquiry, where applicable into:

1) Movant’s efforts to obtain evidence to respond to the

motion for summary judgement;

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.1

2. Plaintiff in this case, argues that he was improperly served by

Defendant causing Plaintiff to overlook the Defendant’s Statement of

Undisputed Material Facts (hereafter referred to as the Statement).

1

Harris v. Chern, 33 S.W.3d 741, 742 (Tenn. 2000)

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3. This Court finds that the proffered response to Defendant’s

Statement of Undisputed Material Facts does not constitute newly-produced

evidence pursuant to T.R.C.P. 54.02.

4. This Court fails to find the Plaintiff credible insofar as his assertions

proffered to support his contention that he was not served with a copy of

Defendant’s Statement of Undisputed Material Facts. It is clear from the

record, that said Statement was effectively and constructively served upon

the Plaintiff by the three means of mailing via U.S. Mail, electronic mail, and

the Davidson County Circuit Court eFile system.

5. Any or all of these means would have provided Plaintiff with notice

of this Statement having been filed. Moreover, Plaintiff was present before

this Court on September 27, 2019 regarding Defendant’s first Motion for

Summary Judgment and was aware that the basis for the denial of

Defendant’s Motion at that time was due to the failure of Defendant to submit

a Statement of Undisputed Material Facts contemporaneously with his

Motion for Summary Judgment.

6. This Court finds that, at a minimum, the Plaintiff’s efforts to obtain

evidence to respond to the Motion for Summary Judgment were inadequate

and inappropriate when Plaintiff was or should have been aware that such a

Statement was and would have been required.

7. This Court further recognizes that Plaintiff is not an attorney and is

representing himself as a pro se litigant; however Plaintiff is responsible for

reading and being familiar with the applicable rules as a consequence of self-

representation.

8. In the event that the Plaintiff had genuinely failed to be served with

a copy of the Statement, such a failure would have caused any reasonable

person to properly file a motion or motions against, in this case, the

Defendant, seeking relief for, what would have been, the Defendant’s defect

in filing his Motion for Summary Judgment.

9. This lack of a reasonable response by the Plaintiff is exacerbated in

the magnitude by which this Court deems Plaintiff’s Motion to be poorly-

taken due to the fact that this Court made the Parties aware of the requirement

for a Statement immediately-prior to the Filing of Defendant’s third Motion

for Summary Judgment on October 25, 2019.

10. There has been no valid explanation presented to this Court to

support Plaintiff’s claim that he failed to receive the Statement.

11. This Court finds no unfair prejudice to Plaintiff.

12. This Court finds no factors, which support Plaintiff’s Motion as it

pertains to claims that Plaintiff failed to receive the Statement and any basis

for alteration or amendment of the January 31, 2020 Summary Judgment

Order, which stem therefrom.

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Inadmissible Evidence

13. Plaintiff raises the allegation that Defendant failed to provide and

attempted to introduce inadmissible evidence, which caused Plaintiff to

suffer prejudice during the Summary Judgment Hearing of January 31, 2020.

Specifically an email communication between Defendant and Plaintiff’s

prior attorney Mr. Todd Cole.

14. This Court finds that Plaintiff has failed to demonstrate the

importance of this information and how it would support his response to

Defendant’s Motion for Summary Judgment nor that Plaintiff was unable to

properly respond to Defendant’s Motion for Summary Judgment because of

the alleged failure to provide said information to Plaintiff by Defendant

during the course of discovery.

15. Further, the evidence submitted at the January 31, 2020 Summary

Judgment Hearing clearly indicates that Plaintiff had been provided a copy

of said document during discovery.

Conclusion

A motion to revise an order granting summary judgment is not an

opportunity for the unsuccessful party to the granting of said motion, and

opportunity to re-argue the motion. The provision of new evidence,

unobtained through no fault of the Movant during discovery, is a basis to

alter or amend such an order. In the present case, this Court does not find

that the Plaintiff has provided such evidence, that Plaintiff has failed to

demonstrate the relevance of said evidence to the success or failure of his

response to Defendant’s Motion for Summary Judgment and that Plaintiff is

not credible in his assertions that he failed to receive a copy of Defendant’s

Statement of Undisputed Material Facts.

Additionally, even if this Court did accept Plaintiff’s responses to

Defendant’s Statement filed on February 27, 2020; those responses do not

constitute or create a genuine issue of material fact which the granting of

Defendant’s Motion would be improper. Most of Plaintiff’s responses are

those of opinion or belief and do not meet the requisite standard to create a

genuine issue of material fact for purposes of a summary judgment

determination.

This Court would re-iterate that the claim sought of legal malpractice

requires, absent blatantly obvious negligence, the opinion of an expert, which

has not, nor was ever provided. Plaintiff’s assertion, that Judge Binkley,

Judge of the Fifth Circuit would have provided a different ruling in its

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dismissal of Plaintiff’s claims in the underlying litigation, which gave rise to

this action, had Defendant provided information to Judge Binkley. Plaintiff’s

continued assertion that the expungement of Plaintiff’s criminal case was a

favorable outcome and that had such documentation been available to

Defendant and subsequently made available to the Fifth Circuit, such a

favorable outcome would have resulted in a victory of Plaintiff in the

underlying litigation.

This Court finds that which the Fifth Circuit did previously, and a

review of the United States Supreme Court decision in Wallace clearly

establishes the rule, that any judicial expungement or relief is not a favorable

outcome for purposes of a malicious prosecution claim; indeed only an

executive expungement or pardon is a favorable outcome.2 The final

disposition of this Motion is indeed the final disposition of this matter, as

there are no further matters before this Court for which it may or must

resolve. Accordingly, this Court finds the following:

1. Plaintiff’s Motion to Alter or Amend the Summary Judgment Order

of January 31, 2020 is not well-taken and is therefore DENIED.

2. The Order granting Defendant’s Motion for Summary Judgment as

it pertains to Plaintiff’s Complaint, entered into on January 31, 2020 is

incorporated herein and is deemed FINAL and DISMISSED.

3. The Order granting Defendant’s Motion for Summary Judgment as

it pertains to Defendant’s Counter-Complaint, entered into on June 12, 2020

is incorporated herein and is deemed FINAL and GRANTED with the

award and costs specified therein applicable.

4. As this matter has been fully-adjudicated and disposed of as of the

entry of this Order, this matter is DISMISSED.

This Court did give notice to the Plaintiff that this order is appealable

provided applicable Rules of Appellate Procedure are followed.

(Footnotes in original). Plaintiff timely appealed to this Court.

Discussion

Although not stated exactly as such, Plaintiff raises the following issues on appeal:

1) whether the Trial Court erred in denying Plaintiff’s motion to continue the summary

judgment hearing; 2) whether the Trial Court erred in granting Defendant’s motion for

summary judgment with respect to Plaintiff’s complaint; 3) whether the Trial Court erred

in denying Plaintiff’s motion to amend; and 4) whether the Trial Court erred in granting

2

Wallace v. Kato, et al., 549 U.S. 384 (2007)

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Defendant’s motion for summary judgment with respect to Defendant’s counterclaim

against Plaintiff.

Regarding the standard of review for cases disposed of by summary judgment, the

Tennessee Supreme Court has instructed:

Summary judgment is appropriate when “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. We review a trial court’s ruling on a motion for summary

judgment de novo, without a presumption of correctness. Bain v. Wells, 936

S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist Healthcare–

Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing so, we make a

fresh determination of whether the requirements of Rule 56 of the Tennessee

Rules of Civil Procedure have been satisfied. Estate of Brown, 402 S.W.3d

193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev. Corp., 387 S.W.3d

453, 471 (Tenn. 2012)).

***

[I]n Tennessee, as in the federal system, when the moving party does not bear

the burden of proof at trial, the moving party may satisfy its burden of

production either (1) by affirmatively negating an essential element of the

nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s

evidence at the summary judgment stage is insufficient to establish the

nonmoving party’s claim or defense. We reiterate that a moving party

seeking summary judgment by attacking the nonmoving party’s evidence

must do more than make a conclusory assertion that summary judgment is

appropriate on this basis. Rather, Tennessee Rule 56.03 requires the moving

party to support its motion with “a separate concise statement of material

facts as to which the moving party contends there is no genuine issue for

trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a separate,

numbered paragraph and supported by a specific citation to the record.” Id.

When such a motion is made, any party opposing summary judgment must

file a response to each fact set forth by the movant in the manner provided in

Tennessee Rule 56.03. “[W]hen a motion for summary judgment is made

[and] . . . supported as provided in [Tennessee Rule 56],” to survive summary

judgment, the nonmoving party “may not rest upon the mere allegations or

denials of [its] pleading,” but must respond, and by affidavits or one of the

other means provided in Tennessee Rule 56, “set forth specific facts” at the

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summary judgment stage “showing that there is a genuine issue for trial.”

Tenn. R. Civ. P. 56.06. The nonmoving party “must do more than simply

show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S. Ct. 1348. The

nonmoving party must demonstrate the existence of specific facts in the

record which could lead a rational trier of fact to find in favor of the

nonmoving party. If a summary judgment motion is filed before adequate

time for discovery has been provided, the nonmoving party may seek a

continuance to engage in additional discovery as provided in Tennessee Rule

56.07. However, after adequate time for discovery has been provided,

summary judgment should be granted if the nonmoving party’s evidence at

the summary judgment stage is insufficient to establish the existence of a

genuine issue of material fact for trial. Tenn. R. Civ. P. 56.04, 56.06. The

focus is on the evidence the nonmoving party comes forward with at the

summary judgment stage, not on hypothetical evidence that theoretically

could be adduced, despite the passage of discovery deadlines, at a future trial.

Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.

2015). In addition, “[w]hether the nonmoving party is a plaintiff or a defendant—and

whether or not the nonmoving party bears the burden of proof at trial on the challenged

claim or defense—at the summary judgment stage, ‘[t]he nonmoving party must

demonstrate the existence of specific facts in the record which could lead a rational trier of

fact to find in favor of the nonmoving party.’” TWB Architects, Inc. v. The Braxton, LLC,

578 S.W.3d 879, 889 (Tenn. 2019) (quoting Rye, 477 S.W.3d at 265).

Certain of the issues on appeal implicate the abuse of discretion standard of review,

as well. The Tennessee Supreme Court has discussed the abuse of discretion standard of

review as follows:

This Court has described the abuse of discretion standard in some detail:

The abuse of discretion standard of review envisions a

less rigorous review of the lower court’s decision and a

decreased likelihood that the decision will be reversed on

appeal. It reflects an awareness that the decision being

reviewed involved a choice among several acceptable

alternatives. Thus, it does not permit reviewing courts to

second-guess the court below, or to substitute their discretion

for the lower court’s. The abuse of discretion standard of

review does not, however, immunize a lower court’s decision

from any meaningful appellate scrutiny.

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Discretionary decisions must take the applicable law

and the relevant facts into account. An abuse of discretion

occurs when a court strays beyond the applicable legal

standards or when it fails to properly consider the factors

customarily used to guide the particular discretionary decision.

A court abuses its discretion when it causes an injustice to the

party challenging the decision by (1) applying an incorrect

legal standard, (2) reaching an illogical or unreasonable

decision, or (3) basing its decision on a clearly erroneous

assessment of the evidence.

Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (citations

omitted); see also BIF, a Div. of Gen. Signals Controls, Inc. v. Serv. Const.

Co., No. 87-136-II, 1988 WL 72409, at *2 (Tenn. Ct. App. July 13, 1988)

(citations omitted) (“The standard conveys two notions. First, it indicates

that the trial court has the authority to choose among several legally

permissible, sometimes even conflicting, answers. Second, it indicates that

the appellate court will not interfere with the trial court’s decision simply

because it did not choose the alternative the appellate court would have

chosen.”).

Lee Medical provided the framework for determining whether a trial

court has properly exercised its discretion:

To avoid result-oriented decisions or seemingly

irreconcilable precedents, reviewing courts should review a

lower court’s discretionary decision to determine (1) whether

the factual basis for the decision is properly supported by

evidence in the record, (2) whether the lower court properly

identified and applied the most appropriate legal principles

applicable to the decision, and (3) whether the lower court’s

decision was within the range of acceptable alternative

dispositions.

Lee Med., 312 S.W.3d at 524-25 (citing Flautt & Mann v. Council of City of

Memphis, 285 S.W.3d 856, 872-73 (Tenn. Ct. App. 2008) (quoting BIF, 1988

WL 72409, at *3)); see also Vodafone Americas Holdings, Inc. &

Subsidiaries v. Roberts, 486 S.W.3d 496, 514 (Tenn. 2016).

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Harmon v. Hickman Cmty. Healthcare Servs., Inc., 594 S.W.3d 297, 305-06 (Tenn. 2020).

“A trial court abuses 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. The abuse of discretion standard does not permit the appellate court to

substitute its judgment for that of the trial court.” Borne v. Celadon Trucking Servs., Inc.,

532 S.W.3d 274, 294 (Tenn. 2017) (internal quotation marks, brackets, and citations

omitted).

We first address whether the Trial Court erred in denying Plaintiff’s motion to

continue the summary judgment hearing. “Where, as here, a party seeks to continue a

motion for summary judgment pursuant to Tennessee Rule of Civil Procedure 56.07, we

review the trial court’s refusal to grant a continuance for an abuse of discretion.” Regions

Fin. Corp. v. Marsh USA, Inc., 310 S.W.3d 382, 401 (Tenn. Ct. App. 2009). Plaintiff

argues that the twelve days he had between his January 18, 2020 receipt of the transcript

of his November 19, 2019 deposition of Defendant and the January 31, 2020 summary

judgment hearing was insufficient time in which to prepare a response to Defendant’s

motion for summary judgment; that Plaintiff also was expecting subpoenaed “material

evidence” from Mr. Todd Cole to be delivered on January 30, 2020; and that Plaintiff had

two additional depositions to take.

Under Tenn. R. Civ. P. 56.04, Plaintiff was entitled to at least thirty days before the

hearing on Defendant’s motion for summary judgment. Under the local rules of Davidson

County, Plaintiff was entitled to seven additional days, for a total of thirty-seven days. As

it happened, Plaintiff had over three months between October 25, 2019, when Defendant

filed his motion for summary judgment with respect to Plaintiff’s complaint, and January

31, 2020, when the hearing on Defendant’s motion was held. While Plaintiff complains

that twelve days was not enough time to prepare upon receiving a copy of Defendant’s

November 19, 2019 deposition, Plaintiff personally conducted the November 19, 2019

deposition. He heard Defendant’s answers in real time. Moreover, it was incumbent upon

Plaintiff to expeditiously and diligently conduct discovery. The purpose of summary

judgment is to provide, when the prerequisites are met, a timely means of resolving legal

disputes. Depending on the circumstances of a case, additional time for discovery beyond

that already allowed may be warranted, but parties are not entitled to utterly open-ended

discovery so as to drag out summary judgment proceedings interminably.

The decision of whether to grant Plaintiff’s motion to continue was a discretionary

one for the Trial Court to make. We find that the Trial Court, in denying Plaintiff’s motion

to continue, did not apply an incorrect legal standard; did not reach an illogical or

unreasonable decision; and did not base its decision on a clearly erroneous assessment of

the evidence. We find further that the factual basis for the Trial Court’s decision to deny

Plaintiff’s motion to continue is properly supported by evidence in the record; that the Trial

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Court properly identified and applied the most appropriate legal principles applicable to

the decision; and the Trial Court’s decision was within the range of acceptable alternative

dispositions. In short, we discern no abuse of discretion by the Trial Court in its decision

to deny Plaintiff’s motion to continue.

We next address whether the Trial Court erred in granting Defendant’s motion for

summary judgment with respect to Plaintiff’s complaint. “It is well settled that a plaintiff

in a legal malpractice action has the burden of proving: (1) the employment of the attorney;

(2) neglect by the attorney of a reasonable duty; and (3) damages resulting from the

neglect.” PNC Multifamily Cap. Institutional Fund XXVI Ltd. P’ship v. Bluff City Cmty.

Dev. Corp., 387 S.W.3d 525, 543 (Tenn. Ct. App. 2012) (citing Jamison v. Norman, 771

S.W.2d 408 (Tenn. 1989); Sammons v. Rotroff, 653 S.W.2d 740 (Tenn. Ct. App. 1983)).

In 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. Rose v. Welch, 115 S.W.3d 478, 484 (Tenn. Ct. App. 2003). As the Tennessee

Supreme Court has explained:

In order to make out a prima facie legal malpractice claim, the plaintiff must

show (1) that the accused attorney owed a duty to the plaintiff, (2) that the

attorney breached that duty, (3) that the plaintiff suffered damages, (4) that

the breach was the cause in fact of the plaintiff’s damages, and (5) that the

attorney’s negligence was the proximate, or legal, cause of the plaintiff’s

damages. See Lazy Seven Coal Sales, Inc. v. Stone & Hinds, 813 S.W.2d

400, 403 (Tenn. 1991); Horton v. Hughes, 971 S.W.2d 957, 959 (Tenn. Ct.

App. 1998). As with any tort claim, the plaintiff has the burden of proving

each of these elements.

Gibson v. Trant, 58 S.W.3d 103, 108 (Tenn. 2001).

Plaintiff argues, first, that the Trial Court erred in deeming Defendant’s statement

of undisputed material facts as undisputed because Plaintiff failed to timely respond to the

statement. Plaintiff contends that Defendant did not properly serve the statement of

undisputed material facts upon him so he had no chance to timely respond. Plaintiff

belatedly filed a response on February 27, 2020. The Trial Court found that, contrary to

Plaintiff’s assertions, Defendant’s statement of undisputed material facts was properly

served upon Plaintiff by three means: United States Mail, electronic mail, and the Davidson

County Circuit Court eFile system. The Trial Court found further that Plaintiff was not

credible in his assertion that he was not properly served with Defendant’s statement of

undisputed facts. Plaintiff takes issue with this credibility finding, arguing in his brief that

it shows the Trial Court “prejudged factual issues” and “displayed prejudice.” However,

trial courts must and do routinely make credibility determinations. Appellate courts defer

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to trial courts’ assessments of in-person witness credibility absent clear and convincing

evidence to the contrary. Kelly v. Kelly, 445 S.W.3d 685, 692-93 (Tenn. 2014). There is

no hint in the record that the Trial Court had any preconceived bias against Plaintiff. From

our review of the DVD video recordings of the hearings conducted below, the Trial Court

treated Plaintiff with considerable courtesy and patience. The Trial Court simply did not

believe Plaintiff’s assertion that he was not properly served with Defendant’s statement of

undisputed material facts, as was the Trial Court’s prerogative. We find no reversible error

in the Trial Court’s decision to deem Defendant’s statement of undisputed material facts

as undisputed.

Nevertheless, even considering Plaintiff’s belated response, he has pointed to no

evidence in this record that withstands Defendant’s motion for summary judgment as to

Plaintiff’s complaint. Crucially, Plaintiff has submitted no expert proof that Defendant

breached the applicable professional standard of care. Contrary to Plaintiff’s insistence,

this was not an obvious case of legal malpractice. The underlying lawsuit involved legal

questions as to what constitutes a favorable termination for purposes of malicious

prosecution; the answer is not necessarily obvious. Expert proof was required as to

Defendant’s duty to Plaintiff as well as Defendant’s failure to meet that duty and that

damages resulted from that neglect. Instead, Plaintiff has simply offered his lay opinions.

Plaintiff’s chief complaint is that Defendant failed to obtain his full case file from

Plaintiff’s former attorney. However, Plaintiff fails to explain how this, or any other of

Defendant’s alleged deficiencies in representation, led to Plaintiff losing his underlying

lawsuit. On the contrary, the record reveals that in the underlying lawsuit, Judge Binkley

ruled that a judicial expungement was not a favorable termination for purposes of

Plaintiff’s malicious prosecution claim. This was a legal interpretation made by Judge

Binkley. Plaintiff fails to explain how Judge Binkley’s interpretation of the law would

have been different but for an act or omission on Defendant’s part. Plaintiff’s lay opinion

that Defendant did a poor job on his case is not a basis for sustaining a claim of legal

malpractice. We affirm the Trial Court in its grant of summary judgment in favor of

Defendant with respect to Plaintiff’s complaint.

We next address whether the Trial Court erred in denying Plaintiff’s motion to

amend. In Kwan v. Doe, No. M2000-03208-COA-R3-CV, 2002 WL 225897 (Tenn. Ct.

App. Feb. 14, 2002), no appl. perm. appeal filed, this Court explained the standard of

review we apply to a trial court’s denial of a motion to amend once partial summary

judgment is granted. The Kwan Court explained:

The decision to deny leave to amend presents itself to the sound discretion

of the trial judge. Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn. Ct. App.

1979). However, the trial court’s discretion is limited by the rule’s provision

that leave to amend “shall be freely given when justice so requires.” Tenn.

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R. Civ. P. 15.01; HMF Trust v. Bankers Trust Co., 827 S.W.2d 296, 301

(Tenn. Ct. App. 1991). In cases where the motion to amend is not filed until

after summary judgment has been granted, the motion is reviewed under a

more restrictive standard than the “freely given” language provided in

Tennessee Rules of Civil Procedure 15.01. See Harris v. City of Auburn, 27

F.3d 1284, 1287 (7th Cir. 1994) (“[T]he presumption that leave to amend

shall be freely given pursuant to [F.R.C.P. 15(a)] disappears after judgment

has been entered. At this juncture, the party making a [F.R.C.P. 59(e)]

motion so that it can amend its complaint had better provide the district court

with a good reason to grant its motion.”) (citations omitted).

Kwan, 2002 WL 225897, at *4. We stated further in Kwan that our Supreme Court in

Harris v. Chern, 33 S.W.3d 741 (Tenn. 2000) articulated the test to be applied when

considering what is, in effect, a motion to “reconsider” summary judgment pursuant to

Tenn. R. Civ. P. 54.02 to revise a non-final partial summary judgment, as follows:

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;

5) any other relevant factor.

Kwan, 2002 WL 225897, at *5 (quoting Harris, 33 S.W.3d at 745).

After the Trial Court’s grant of summary judgment in favor of Defendant as to

Plaintiff’s complaint, Plaintiff sought leave to file an amended complaint. Plaintiff sought

to add claims of fraud, breach of contract, and defamation (although Plaintiff states in his

appellate brief that he withdraws his defamation claim). Under his fraud claim, Plaintiff

asserts that Defendant falsified his legal experience; did “fake work” such as failing to

thoroughly read depositions; and made “fake plans” such as taking an inordinate amount

of time to file an amended complaint. Under his breach of contract claim, Plaintiff asserts

that Defendant failed to look for Plaintiff’s case files and otherwise act diligently in breach

of the retainer agreement. Plaintiff asserts further that this lack of diligence caused

dismissal of Plaintiff’s lawsuit. However, Plaintiff has failed to point to any newly

submitted evidence that would justify permitting him to amend his complaint after it had

been disposed of by summary judgment. Plaintiff continues to opine at length about

Defendant’s poor performance but fails to connect these alleged deficiencies to the

outcome of the underlying lawsuit. Plaintiff’s attempt to add additional claims represents

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a mere bid to re-argue the Trial Court’s grant of summary judgment in favor of Defendant.

Under the Harris v. Chern factors, that is an insufficient basis for granting Plaintiff’s

motion to amend.

Whether to grant Plaintiff’s motion to amend was within the Trial Court’s

discretion. We find that the Trial Court, in denying Plaintiff’s motion to amend, did not

apply an incorrect legal standard; did not reach an illogical or unreasonable decision; and

did not base its decision on a clearly erroneous assessment of the evidence. We find further

that the factual basis for the Trial Court’s decision to deny Plaintiff’s motion to amend is

properly supported by evidence in the record; that the Trial Court properly identified and

applied the most appropriate legal principles applicable to the decision; and the Trial

Court’s decision was within the range of acceptable alternative dispositions. In short, we

discern no abuse of discretion by the Trial Court in its declination to grant Plaintiff’s

motion to amend.

The final issue we address is whether the Trial Court erred in granting Defendant’s

motion for summary judgment with respect to Defendant’s counterclaim against Plaintiff.

“The essential elements of any breach of contract claim include (1) the existence of an

enforceable contract, (2) nonperformance amounting to a breach of the contract, and (3)

damages caused by the breach of the contract.” ARC Lifemed, Inc. v. AMC-Tennessee,

Inc., 183 S.W.3d 1, 26 (Tenn. Ct. App. 2005) (quoting Custom Built Homes v. G.S. Hinsen

Co., Inc., No. 01A01-9511-CV-00513, 1998 WL 960287, at *3 (Tenn. Ct. App. Feb. 6,

1998), no appl. perm. appeal filed). On this issue, Plaintiff argues that the Trial Court

ignored certain verbal and implied contracts between Plaintiff and Defendant. As an

example, Plaintiff points to Defendant having told Plaintiff he would pursue all angles of

his case, which would likely yield a good result. Plaintiff also points to certain statements

Defendant made at various points over the course of the underlying lawsuit to the effect

that Defendant would take certain legal steps at certain times. Plaintiff argues that

Defendant’s alleged failure to take these steps means Plaintiff has the right to withhold the

remaining $1,000 he owes Defendant. However, these parties had a written retainer

agreement and that written agreement controls. The parties’ retainer agreement contains

no provision allowing Plaintiff to withhold any sums from Defendant on grounds that

Defendant failed to take certain tactical, legal steps that Plaintiff wanted him to take. The

statements cited by Plaintiff in no sense create a separate agreement beyond the

unambiguous written retainer agreement executed by the parties. We, as did the Trial

Court, look exclusively to the four corners of the parties’ written retainer agreement as to

what was the contract between the parties. In sum, Plaintiff must pay what he owes

Defendant under the written retainer agreement. We affirm the Trial Court’s grant of

summary judgment in favor of Defendant as to Defendant’s counterclaim for breach of

contract. We affirm the judgment of the Trial Court in its entirety.

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Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial

Court for collection of the costs below. The costs on appeal are assessed against the

Appellant, Xingkui Guo, and his surety, if any.

____________________________________

D. MICHAEL SWINEY, CHIEF JUDGE

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