Petition for Writ of Certiorari — Hamid Houbbadi, Petitioner v. Kennedy Law Firm, PLLC, et al.

Supreme Court briefMar 14, 2024

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Appendix "A"

FILED

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 1,2023

01/09/2024

Clerk of the

Appellate Courts

HAMID HOUBBADI v. KENNEDY LAW FIRM, PLLC et al.

Appeal from the Circuit Court for Montgomery County

No. CC21-CV-2457

Kathryn Wall Olita, Judge

No. M2022-01166-COA-R3-CV

1 he plaintiff filed an action for breach of contract and fraud against his fonner attorneys

and the attorneys’ law firm. The defendants moved for a judgment on the pleadings,

arguing that the plaintiff failed to state a claim for which relief can be granted, and that the

action was untimely. The trial court granted the defendants’ motion, and, having

determined that the plaintiffs action is untimely under Tennessee Code Annotated section

28-3-104(c)(1), we affirm.

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

Krjstj M. Davis, J., delivered the opinion of the Court, in which Andy D Bennett J

and J. Steven Stafford, P.J., W.S., joined.

’ ’’

Hamid Houbbadi, Mountain City, Tennessee, Pro Se.

Joshua A. Powers, Chattanooga, Tennessee, and Nora A. Koffman, Johnson City

Tennessee, for the appellees, Kennedy Law Firm, PLLC, Kevin Kennedy, and Gordon

Rahn.

OPINION

BACKGROUND

According to his complaint, Hamid Houbbadi (“Appellant”) hired the Kennedy Law

Firm in 2018 to represent him in a divorce and order of protection proceeding, both of

which Appellant’s wife initiated. Based on the wife’s petition for an order of protection,

the Montgomery County Genera] Sessions Court (“general sessions court”) had issued an

ex parte order of protection against Appellant on September 26, 2018. A hearing was set

for October 9, 2018. Appellant met with attorneys Kevin Kennedy and Gordon Rahn on

October ], 2018. It is undisputed that Appellant hired Defendants and paid $1.000 towards

the total fee. Mr. Rahn attended the October 9, 201 8 court date, but a hearing did not occur.

Appellant avers that a scheduling issue occurred with the court interpreter and that the

hearing was reset to November 13, 2018. Appellant also avers that Mr. Rahn agreed to

reset the hearing and continue the ex parte order without discussing the continuance with

Appellant. The order entered October 9, 2018, provides that the ex parte order was

continued by agreement of the parties but that Appellant could return to the marital home

to retrieve his personal clothing and medication between 12:00 p.m. on October 9, 2018,

and 5:00 p.m. on October 10, 2018.

Appellant murdered his wife in the marital residence on October 19, 2018.

“[Appellant] was subsequently indicted for first degree premeditated murder, first degree

felony murder in perpetration of or the attempt to perpetrate especially aggravated burglary,

and especially aggravated burglary.” State v. Houbbadi, No. M2022-01 75J-CCA-R3-CD,

2023 WL 8525144, at *1 (Term. Crim. App. Dec. 8, 2023). Following his trial, a “jury

convicted [Appellant] of first degree premeditated murder, first degree murder during the

perpetration of the felony of aggravated burglary, and especially aggravated burglary.” Id.

at *5. The criminal court sentenced Appellant to life in prison plus twelve years. Id.

On December 14, 2021, Appellant initiated the instant case in the Circuit Court for

Montgomery County (the “trial court”), naming Mr. Kennedy, Mr. Rahn, and the Kennedy

Law Finn (collectively, “Defendants” or “Appellees”) as defendants. The complaint is

captioned as “Claim of fraud and breach of contract.” While it is handwritten and generally

difficult to discern, the complaint seems to allege that Defendants defrauded Appellant

when Appellant hired them; that Defendants failed to act in good faith in their

representation of Appellant; that Defendants agreed to continue the ex parte order of

protection without consulting Appellant; and that Defendants should have moved the

general sessions court at the October 9, 2018 hearing for Appellant to have exclusive use

and possession of his marital residence. Under the section titled “Prayers of relief,”

Appellant requests twenty million dollars in damages. Appellant also claims that he

suffered economic damages due to Defendants’ “unprofessional behavior, deshonsty [sic]

and fraud and taking advantage of complainfant’s] nationality and broken english.”

Appellant alleges that he lost his house, car, furniture, and job, and that Appellant “would

not charge on a murder charge [sic] if defendant Kenndy [sic] and Rahn did their jobs in

good f[a]ith.” Appellant also asked for a jury trial.

Appellees answered the complaint on January 18, 2022, admitting that they

represented Appellant and appeared at the October 9, 2018 court date. They denied,

however, agreeing to reset the order of protection hearing without Appellant’s permission.

Appellees claimed that they reset the hearing because of a scheduling conflict with the

court interpreter but agreed to a window of time in which Appellant could go to the marital

residence to retrieve various items. Appellees also denied that Appellant asked them to

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move the genera) sessions court for an order providing Appellant exclusive access to the

marital residence. Appellees raised several affirmative defenses, including the statute of

limitations and that Appellant failed to state any claim for which relief could be granted.

Appellant proceeded to file several items, including a request for appointment of

counsel and a notice for an evidentiary hearing, that are not ultimately relevant to the

dispositive issue on appeal. On May 3, 2022, Appellees filed a motion for judgment on

the pleadings and a supporting memorandum. Appellees argued that to the extent

Appellant’s claims sounded in fraud and breach of contract, those claims were inadequately

pled under the Tennessee Rules of Civil Procedure. Alternatively, Appellees claimed that

Appellant’s cause of action actually sounded in legal malpractice and was untimely under

Tennessee Code Annotated section 28-3-104. Regarding Appellant’s alleged damages,

Appellees urged that the losses “are simply not the result of any action or inaction by

[Appellees,]” but rather “the result of a gruesome murder that [Appellant] was found guilty

of committing in early 2022.” Appellant filed a response to the motion for judgment on

the pleadings on June 1,2022. Therein, Appellant claimed that he “would not be charge

[sic] and convicted with murder if [Appellees] did their job in good faith.” For the first

time, Appellant also argued that Mr. Kennedy had been having an affair with Appellant’s

wife prior to her death.

The trial court held a hearing on several pending motions, including Appellees’

motion for judgment on the pleadings, on July 14, 2022. Appellant and a court interpreter

participated by video-call. The trial court denied Appellant’s motion for appointment of

counsel,1 but took the motion for judgment on the pleadings under advisement. The trial

court also took under advisement a motion to amend the complaint filed by Appellant,

which Appellees argued was futile.

The trial court entered its final order on August 8, 2022, denying Appellant leave

to amend and granting Appellees’ motion for judgment on the pleadings. As to breach of

contract, the trial court found that Appellant failed to state a claim for which relief could

be granted, noting that “[i]n that there are no specific terms of the agreement for general

legal representation, Plaintiff has failed to state a claim for breach of the same as it relates

to an unfiled motion.” Explaining that fraud claims must be stated with particularity, the

trial court also found that claim was not properly pled. Finally, the trial court found that to

the extent Appellant was alleging his damages stemmed from Appellees’ failure to move

for exclusive use of Appellant’s residence and continuing the ex parte order of protection,

those claims sounded in legal malpractice. Because Appellant filed his complaint in 2021,

1 Appellant sought appointed counsel from the trial court multiple times throughout these

proceedings, the trial court raling each time that as a civil litigant, Appellant had no right to a

court-appointed attorney.

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the trial court concluded that any claim for legal malpractice was untimely. All remaining

motions or requests for relief were denied, and the trial court certified its order as final.

Appellant timely appealed to this Court.

ISSUES

Appellant states several issues for review; however, we have determined that two

issues are dispositive in this appeal:

1. Whether the trial court erred in concluding that Appellant’s claims sound in legal

malpractice.

2. Whether the trial court erred in concluding that Appellant’s cause of action was

untimely under Tennessee Code Annotated section 28-3-104.

STANDARD OF REVIEW

The trial court resolved this case on a motion for judgment on the pleadings

Accordingly, the standard of appellate review is as follows:

When reviewing orders granting a Tenn. R. Civ. P. 12.03 motion, we use the

same standard of review we use to review orders granting a Tenn. R. Civ. P.

12.02(6) motion to dismiss for failure to state a claim. Waller v. Bryan, 16

S.W.3d 770, 773 (Tenn. Ct. App. 1999). Accordingly, we must review the

trial court’s decision de novo without a presumption of correctness, Stein v.

Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997), and we must

construe the complaint liberally in favor of the non-moving party and take

all the factual allegations in the complaint as true. We should uphold granting

the motion only when it appears that the plaintiff can prove no set of facts in

support of a claim that will entitle him or her to relief.

Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003).

DISCUSSION

Here, the trial court determined that Appellant failed to adequately plead any of his

claims and that, in any event, Appellant’s cause of action sounded in legal malpractice and

was time-barred. If the trial court correctly determined that Appellant’s claim is actually a

time-barred malpractice action, then any other issues raised are pretennitted and need not

be reached.

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To state a prima facie case of legal malpractice, the following elements must be

established: “(1) that the accused attorney owed a duty to the plaintiff. (2) that the attorney

breached that duty, (3) that the plaintiff suffered damage, and (4) that the breach

proximately caused the plaintiff’s damage.” Horton v. Hughes. 971 S.W.2d 957, 959

(Tenn. Ct. App. 1998) (citing Lazy Seven Coal Sales, he. v. Stone <& Hinds, P.C., 813

S.W.2d 400, 403 (Tenn. 1991)). Ultimately, the

plaintiff must “prove that the attorney’s conduct fell below that degree of

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

attorneys practicing in the same jurisdiction . . . and demonstrate a nexus

between the negligence and the injury.” Sanjines v. Orfwein and Associates,

P.C., 984 S.W.2d 907, 910 (Tenn. 1998).

Lewis v. Caputo, No. E1999-01182-COA-R3-CV, 2000 WL 502833, at *3 (Tenn. Ct. App.

Apr. 28, 2000) (bracketing omitted). Further, “[ajctions and suits against . . . attorneys . ..

for malpractice . . .” must be commenced within one year after the cause of action accrues.

Tenn. Code Ann. § 28-3-104(c)(l). This is true “whether the action or suit is grounded or

based in contract or tort.” Id.

Here, Appellant captioned his claims as breach of contract and fraud. Nonetheless,

the substance of the allegations sound in legal malpractice. See PNC Multifamily Cap. Inst.

Fund XXVI Ltd. P’ship v. Bluff City Cmty. Dev. Corp., 387 S.W.3d 525, 538 (Tenn. Ct.

App. 2012) (noting that “we must always look to the substance of the pleading rather than

to its form” (citing Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992)); see

also Redwing v. Cath. Bishop for Diocese ofMemphis, 363 S.W.3d 436, 457 (Tenn. 2012)

(“The choice of the correct statute of limitations is made by considering the ’gravamen of

the complaint.’” (quoting Whaley v. Perkins, 197 S.W.3d 665, 670 (Tenn. 2006))); Lewis,

2000 WL 502833, at *3 (to determine the “gravamen” of a complaint and thus the

applicable statute of limitations, we ‘“must look to the basis for which damages are

sought’” (quoting Keller v. Colgems-EMJ Music, Inc., 924 S.W.2d 357, 359 (Tenn. Ct.

App. 1996))).

Indeed, Appellant does not claim that Appellees failed to represent him or did not

fulfill a certain aspect of their general representation; rather. Appellant takes issue with the

manner in which Appellees executed the representation. Specifically. Appellant claims

that Appellees did not act in good faith by 1) agreeing to continue the ex parte order of

protection on October 9, 2018, and 2) failing to move the general sessions court for an

order granting Appellant exclusive use of his marital residence. At their essence, these are

claims that Appellees’ conduct fell below the appropriate professional standard of care,

thus resulting in injury to Appellant. Appellant claims that he would not have killed his

wife, thus resulting in his imprisonment, if Appellees had sought an order allowing

Appellant exclusive use of the marital residence on October 9, 2018. With that failure as

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the basis for Appellant’s alleged damages, “the complaint makes out an allegation of legal

malpractice.” Lewis, 2000 WL 502833, at *4.

Regardless, the one-year statute of limitations applies “whether the action or suit is

grounded or based in contract or tort.” Tenn. Code Ann. § 28-3-104(c)( 1). Thus, even if

the complaint states a cause of action for breach of contract, it may still be untimely under

the statute. Under these circumstances, our opinion in Ferrell v. Long, No. M2008-02232COA-R3-CV, 2009 WL 1362321 (Tenn. Ct. App. May 14, 2009), cited by Appellees in

their principal brief, is analogous and persuasive. In that case, the plaintiff hired Attorney

Long on May 19, 2003, to defend the plaintiffs brother in a criminal matter. Id. at *1.

Part of the agreement required Attorney Long to deposit the plaintiffs $7,500 retainer in

an escrow account. Id. It was revealed during a post-conviction hearing on February 28,

2007, that Attorney Long did not put the plaintiff s retainer in an escrow account. Id. The

plaintiff then filed suit against Attorney Long on March 11, 2008, alleging claims for

breach of contract, fraud, and “theft by deception and conversion.” Id. The trial court

dismissed the action based upon the one-year statute of limitations found at section

28-3-104(a)(2),2 and the plaintiff appealed to this Court. We affirmed the trial court,

explaining as follows:

The Court of Appeals has already addressed the statute of limitations in the

breach of contract context:

On appeal, Ms. Swett argues that her claim is not one of legal

malpractice but of a breach of contract, and that it is governed

by the six-year statute of limitations in Tenn. Code Ann.

§ 28-3-109.

We disagree. Tenn. Code Ann. § 28-3-104(a)(2) governs

“actions and suits against attorneys or licensed public

accountants or certified public accountants for malpractice,

whether the actions are grounded or based in contract or tort.”

We think it is instructive to note that this section of the statute

was passed by the legislature on May 17, 1967, in the first

session after the Supreme Court’s December 1966 decision in

Hillhouse v. McDowell, 219 Tenn. 362, 410 S.W.2d 162

(1966). In that case, the court held that an action for

malpractice for failing to timely file an action for personal

injuries was a breach of contract and was governed by what is

now Tenn. Code Ann. § 28-3-109. The court distinguished its

2 Since we decided Ferrell, the statute has been re-numbered such that the pertinent one-year

limitation is now found at sub-section (c)( 1). The relevant language, however, is the same.

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earlier decision in Bland v. Smith, 197 Tenn. 683, 277 S.W.2d

377 (1955), in which it applied the one-year statute to a legal

malpractice action because, as the court read the declaration, it

alleged a toil for personal injuries. We think the legislature

sought to remove any doubt about which statute applied to a

malpractice claim, and it chose the one-year period of

limitations.

In addition, the courts are admonished to determine the

appropriate statute of limitations “according to the gravamen

of the complaint,” Keller v. Colgems—EMI Music, Inc., 924

S. W.2d 357 (Tenn. Ct. App. 1996); and it seems to us that the

gravamen of Ms. Swett’s complaint is not Mr. Binkley’s

breach of a promise. Instead, it is a complaint that he failed to

recover all the fees and expenses from Mr. Swett or his estate.

That complaint clearly comes within the legal malpractice

statute of limitations contained in Tenn. Code Ann.

§ 28-3-104(a)(2).

Swett v. Binkley, 1 04 S.W.3d 64, 67 (Tenn. Ct. App. 2002). Like Swett, this

case involves a claim for breach of contract against an attorney. Swett found

that the one year statute of limitations governs this situation. Id. Since Tenn.

Code Ann. § 28-3-104(a)(2) applies to torts as well, it also controls Ferrell’s

claims for fraud, theft by deception and conversion.

Ferrell, 2009 WL 1362321, at *2.

Consequently, section 28-3-104(c)(l) applies to the case at bar. This is true even

when the allegations are taken as true and the complaint construed liberally in Appellant’s

favor. See Young, 130 S.W.3d at 63 (noting that we are required to “construe the complaint

liberally in favor of the non-moving party and take all the factual allegations in the

complaint as true” when considering a judgment on the pleadings).

Having determined that section 28-3-104(c)(l) applies, the question then becomes

whether Appellant filed his complaint within one year of when his cause of action accrued.

“Although the statute does not define the point of accrual, in legal malpractice cases . . .

the date that the statute of limitations begins to run is determined by applying the discovery

rule.” Story v. Bwisline, 538 S.W.3d 455, 463 (Tenn. 2017) (citing John Kohl & Co. P.C.

v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998)). The “discovery rule” provides

that “a cause of action accrues when the plaintiff knows or in the exercise of reasonable

care and diligence should know that an injury has been sustained as a result of wrongful or

tortious conduct by the defendant.” Id. (quoting John Kohl, 977 S.W.2d at 532). First,

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“the plaintiff must suffer legally cognizable damage—an actual injury—as a result of the

defendant’s wrongful or negligent conduct. .

Id. at 463-64. Second, “the plaintiff must

have known or in the exercise of reasonable diligence should have known that this injury

was caused by the defendant’s wrongful or negligent conduct.” ]d. at 464. “|T]hc plaintiff

is deemed to have discovered the right of action if he is aware of facts sufficient to put a

reasonable person on notice that he has suffered an injury as a result of wrongful conduct.”

Lewis, 2000 WL 502833, at *3 (quoting Carved v. Bottoms, 900 S.W.2d 23, 29 (Tenn.

1995)).

Here, the trial court found that Appellant should have known about his purported

cause of action in October of 2018, explaining in the final order:

The alleged unauthorized agreement to continue the Order of Protection

hearing took place on October 9, 2018. As of the date of [Appellant’s] wife’s

murder on October 20,2018, [Appellees] had not filed a motion for exclusive

possession of the marital home and [Appellant] knew or should have known

of that fact. As such, [Appellant’s] claims accrued in October of 2018, nearly

3 1/2 years prior to the filing of this action. At the hearing of this matter,

[Appellant] claims he did not truly discover that the Order of Protection had

been continued by an alleged unauthorized agreement until December 7,

2020. Even taking that assertion as true, which is difficult to do in light of

the fact that [Appellant’s] counsel in the criminal trial relied upon the

agreement and extension in support of a motion to dismiss the indictments

filed December 26, 2019,^ [Appellant’s] claim regarding that issue is still

untimely.

We agree with the trial court’s analysis. Appellant claims that he was injured by

Appellees continuing the ex parte order of protection and failing to move the general

sessions court for Appellant’s exclusive possession of his marital residence. Both of these

events occurred on October 9, 2018. Appellant claims that he would not have murdered

his wife on October 19, 2018, if he had been awarded exclusive possession of the marital

home. Taking these allegations as true, it follows that Appellant should have known about

’ During the hearing on Appellees’ motion, the trial court took judicial notice of several court

documents from the criminal proceedings against Appellant. Normally, “[i]f matters outside the pleadings

are presented in conjunction with either a Rule 12.02(6) motion or a Rule 12,03 motion and the trial court

does not exclude those matters, the court must treat such motions as motions for summary judgment and

dispose of them as provided in Rule 56.” Patton v. Est. of Upchurch, 242 S.W.3d 781,786 (Tenn. Ct. App.

2007). Nonetheless, courts may consider items subject to judicial notice without converting a motion to

dismiss to a motion for summary judgment. See Stephens v. Home Depot U.S.A.. Inc., 529 S.W.3d 63, 74

(Tenn. Ct. App. 2016) (citing Haynes v. Bass, No. W2015-01192-COA-R3-CV, 2016 WL 3351365, at *4

(Tenn. Ct. App. June 9, 2016)); see also Coffee CnW. v. Spining, No. M2020-01438-COA-R3-CV, 2022

WL 168145, at *5 n.4 (Tenn. Ct. App. Jan. 19, 2022),perm. app. denied (Tenn. May 18, 2022).

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«•*

Appellees’ purported failures on October 19, 2018.4 Moreover, we agree with the trial

court’s assessment that even if Appellant was not aware of his puiported injuries in October

of 2018, he admits he became aware of the agreement to continue the ex parte order on

December 7, 2020. The complaint was not signed and dated by Appellant until December

8, 2021, and not filed with the trial court until December 14, 2021. Thus, even under the

most liberal interpretation of Appellant’s claims that is possible under the circumstances,

his action is time-barred.

The trial court correctly concluded that Appellant’s action is untimely and that

Appellees are entitled to a judgment on the pleadings. All other issues raised on appeal are

pretermitted, and we affirm the trial court.

CONCLUSION

The judgment of the Circuit Court for Montgomery County is affirmed. Costs on

appeal are assessed to the appellant, Hamid Houbbadi.

IsTI

TJDGE

4 The trial court’s order states that the murder occurred on October 20, 2018. See Houbbadi, 2023

WL 8525144, at *1-2 (explaining that the murder occurred sometime in the evening on October 19, 2018,

but that the victim was not discovered by neighbors until the early morning hours of October 20, 2018).

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;

Appendix "B"

Supreme Court - Middle Division

Appellate Court Clerk’s Office - Nashville

100 Supreme Court Building

401 7th Avenue North

Nashville, TN 37219-1407

(615) 741-2681

Hamid Houbbadi #00637286

Northeast Correctional Complex

P.O. Box 5000

Mountain City TN 37683-5000

Re: M2022-01166-SC-R11-CV - HAMID HOUBBADI v. KENNEDY LAW FIRM, PLLC ET

AL.

Notice: Case Dispositional Decision - TRAP 11 Denied

Attached to this cover letter, please find the referenced notice issued in the above case. If you

have any questions, please feel free to call our office at the number provided.

cc:

Hamid Houbbadi

Nora Ann Koffman

Judge Kathryn Wall Olita

Additional case information can be found at www.tncourts.gov

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

HAMID HOUBBADI v. KENNEDY LAW FIRM, PLLC ET AL.

Montgomery County Circuit Court

CC21-CV-2457

No. M2022-01166-SC-R11-CV

Date Printed: 03/06/2024

Notice / Filed Date: 03/06/2024

NOTICE - Case Dispositional Decision - TRAP 11 Denied

The Appellate Court Clerk's Office has entered the above action.

James M. Hivner

Clerk of the Appellate Courts

FILED

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

03/06/2024

Clerk of the

Appellate Courts

HAMID HOUBBADI v. KENNEDY LAW FIRM, PLLC ET AL.

Circuit Court for Montgomery County

No. CC21-CV-2457

No. M2022-01166-SC-R11-CV

ORDER

Upon consideration of the application for permission to appeal of Hamid Houbbadi

and the record before us, the application is denied.

PER CURIAM

V'tl

Appendix "C"

ATTACHMENT 1A-BRIEF-COVER PAGE

JN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Hamid Houbbadi

Plaintiff/Appellant,

)

Kennedy Law Firm, PLLC, Kevin

Kennedy, and Gordon Rahn

Defendants/Appellees,

Case No. M2022-01166-COA-R3-CV

Montgomery County No. CC21-CV-2457

)

Rule 3 Appeal from The Final Judgement of the Circuit Court for Montgomery County,

Case No. CC21-CV-2457

BRIEF OF APPELLANT

HAMID HOUBBADI

Hamid Houbbadi #637286

N.E.C.X.

P.O. Box 5000

Mountain City, TN. 37683

[Oral Argument Requested]

ATTACHMENT IB-BRIEF-TaBLE OF CONTENTS

TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES

3-4

STATEMENT OF ISSUES PRESENTED FOR REVIEW

STATEMENT OF THE CASE

6-8

STATEMENT OF FACTS

ARGUMENT

10-26

CONCLUSION

CERTIFICATE OF SERVICE

•y

ATTACHMENT 1C-BRJEF-TABLE OF AUTHORITIES

TABLE OF AUTHORITIES

CASES

Sakaan v. Fedx Corp. INC, 2016 WL 7396050, at 6 (Term. Ct. App. 2016)

Timmins v. Lindsey, 310 S.W.3d 834, 838 (Tenn. Ct. App. 2009)

Webb v. Nashville Area Habitat for Humanity Inc., 346 S.W.3d at 426 (Tenn. 2011)

Brown v. Tenn. Title loans Inc, 328 S.W.3d 850, 854 (Tenn. 2010)

Ellithrope v. Weismark, 479 S.W.3d 818, 824 (1 enn. 2015)

Tigg v. Pirelli Tire Corp. 232 S.W.2d 28, 31 -32 (Tenn. 2007)

Trau-Med Inc Co. v. Allstate Ins Co. 71 S. W.3d691,696 (Tenn. 2008)

Chill v. Tenn. Farmers Mut. Ins. Co. 2013 WL 3964272 (1 enn. Ct. App. 2013)

Frankenberg v. River City Resort Inc. 2013 WL 1 952980 at 2 (Tenn. Ct. App. 2013)

State v. Nunley, 22 S.W.3d 282, 288 (Tenn. Cnm. App. 1 999)

State v. Lawson, 291 S.W.3d 864 (Tenn. 2009)

Liberty Mut Ins. Co. Rotches Pork Packers Inc. 969 F.2d 1384, 1388 (2nd Cir. 1992)

Sims v. Barham, 743 S.W.2d 179, 181 (Tenn. Ct. App. 1987)

Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992)

Lobes v. Taylor, 195 S.W.3d 627, 634 (Tenn. Ct. App. 2001)

Brown v. Birman Care Ins. 42 S.W.3d 62, 66 (Tenn. 2001)

Fed Ins. Co. Winters, 354 S.W.3d 287, 291 (Tenn. 2001)

Alexander v. Third Nat Bank, 915 S.W.2d 797, 799-800 (Tenn. 1996)

Vance v. Schulder, 547 S.W.2d 927, 932 (Tenn. 1997)

Am Fid Fire Ins. V. Tucker, 671 S.W.2d 837, 841 (Tenn. Ct. App. 1983)

Peoples Nat Bank of Washington v. king, 697 S.W.2d 344, 346 (Tenn. 1995)

Jordan v. Clifford, 2010 WL 2075871

Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003)

Hessmer v. Hessmer, 138 S. W.3d 901,903 (1 enn. Ct. App. 2003)

Branch v. Warren, 527 S.W.2d 89, 91 (Tenn. 1975)

Tenn. Dept, of Mental Health, & Mental Retardation v. Hughes, 531 S.W.2d 299 (Tenn. 1975)

Matus v. Metropolitan Gov:t of Nashville. 128 S.W.3d 653 (lean. Ct. App. 2003)

. Coker v. Redick, 1995 WL 89706 (Tenn. Ct. App. 1995)

HMF Trust v. Bankers Trust Co. 827 S.W.2d 296 (Tenn. Ct. App. 1991)

Harris v. St. Mary’s Medical Center, 726 S.W.2d 902 (Tenn. 1987)

Gathright v. First Tennessee Bank of Memphis, 728 S .W.2d 7 (Tenn. Ct. App. 1986)

Liberty Mutual Ins. Co. v. Taylor, 590 S.W.2d 920,921 (Tenn. 1979)

Richland County Club Inc. CRC Equities Inc. 832 S.W.2d 554, 559 (Tenn. Ct. App. 1991)

Cheatham County v. Cheatham County Bd. Of Zoning Appeals, 2012 WL 5993757 (Tenn. Ct.

App. 2001)

Lynch, 205 S.W.3d at 391

Logan v. Zimmerman Brush Co. 455 U.S. 422-30, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982)

Manning v. City of Lebanon, 124 S.W.3d 562, 566 (1 enn. Ct: App. 2003)

STATUTES .

T.C.A. 28-3-105

T.C.A. 28-3-109

T.C.A. 1505

RULES

T.R.C.P. 12.02 (b)

T.R.C.P. 12.03

T.R.C.P. 201

T.R.C.P. 15.01

T.R.C.P. 6.04

T.R.C.P. 6.05

V ■

ATTACHMENT 1D-BR1EF-STATEMENT OF THE ISSUE(S)

STATEMENT OF THE ISSUE PRESENTED FOR REVIEW

1) Whether the trial court erred in granting defendants motion for Judgment on the Pleading.

2) Whether the trial court committed reversible error by taking judicial notice of disputed facts.

3) Whether the trial Court erred in holding that plaintiff failed to state a claim

4) Whether the trial Court erred in holding that plaintiff claims are barred by the applicable

statute of limitation.

5) Whether the trial Court erred in holding that plaintiff claims sound in tort of legal malpractice.

6) Whether the trial Court erred in denying plaintiff motion ior leave to amend.

7) Whether the trial court denied plaintiff due process.

>■<

STATEMENT OF THE FACTS

]. On December 14, 2021 plaintiff filed his complaint against defendants Kennedy law

Firm, Kiven Kennedy and Gordon Rahn for fraud and breach of contract. (Vol. 1. p. 1-6).

2. On February 02, 2022 plaintiff sent a letter to trial court informing the court 48 days

passed still no answer from defendant (Vol. 1 p. 27-28) plaintiff also filed a notice of hearing the

same day setting May 09, 2022 for a hearing.

3. Plaintiff received a letter from the trial court dated February 08, 2022 and a copy of

defendant answer which was filed January 1 8. 2022 (Vol. 1111) Supplemented Record).

4. On February 23, 2023, plaintiff filed a “Response to defendants’ answer” to inform the

court that plaintiff never received an answer from defendants as the certificate of service they

filed with the court said, plaintiff received a copy of defendant answered from the court after

more than 50 days and after plaintiff sent a letter to the court. (Vol. 1. P. 20-34).

5. Defendant filed a motion to strike and to cancel evidentiary hearing on April 06, 2022

to strike plaintiff “Response to defendant answer’" and to cancel May 09, 2022 evidentiary

hearing (Vol. I. p. 38-43).

6. Defendant filed a notice of hearing on April 22. 2022 setting May 06, 2022 for a

hearing (Vol. V. Supplemented Record)

7. On May 02, 2022 defendant filed a supplement to motion to cancel or continue

evidentiary hearing (Vol. I p. 47-48) and on May 03. 2022 defendant filed two motions (1)

motion for judgment on the pleading (2) Memorandum m support of motion for judgment on the

pleading (Vol. I p. 47-48 and 49-51).

8. On May 06, 2022 was the hearing on defendant motions to strike and to cancel or

continue evidentiary hearing and on plaintiff motion for appointment ol counsel. At the hearing

plaintiff informed the court that defendants did not serve plaintiff with an answer as they claim

but plaintiff receive the answer from the court, and that defendants May 02, and 03, 2022

motions were served to plaintiff on May 06, 2022 the night before the hearing. The court also

advice plaintiff that he could amend his complaint when it stnked plaintiff “Response to

defendants’ answer.”

9. On May 13, 2022 plaintiff filed his motion for leave to amend. (Vol. 1. p. 117).

10. On May 18, 2022 the trial court issued its order granting defendants motions to strike

and to cancel or continue the evidentiary hearing and denied plaintiff motion (Vol. 1. p. 119121).

1 1. On May 24, 2022 plaintiff filed a notice of hearing setting July 14, for a hearing on

motion for leave to amend (Vol. IIII supplemented record)

12. On June 1, 2022 plaintiff filed an opposition to the motion for judgment on the

pleading and a memorandum in support of opposition to judgment on the pleading (Vol. 1. p.

125-126 and 127-128).

13. On July 11, 2022 the trial court issued an order to transport plaintiff from prison to

the court for July 14, 2022 hearing (Vol. 1. p. 139-141)

14. On July 11,2022 defendants filed three motions (Vol. 1. p. 142-44 and 145-148 and

149-154).

15. On July 14, 2022 plaintiff participated at the hearing via video informed the trial

court that he had three witnesses for this case and also informed the court about the testimony of

the opposing part on the order of protection at plaintiff criminal trial (Vol. Ill)

16. On July 21, 2022 plaintiff requested time to file a supplement response motion for

judgment on the pleading and amendment (Vol. II. P. 156-160).

17. On August 02, 2022 the trial court issued its order granting defendants motion for

judgment on the pleading and denied plaintiff motion for leave to amend (Vol. II. P. 182-188).

ATTACHMENT 1 E-STATEMENT OF THE CASE

STATEMENT OF THE CASE

Plaintiff filed his action for fraud and breach of contract of Montgomery County Circuit

Court. The first hearing was held on May 06, 2022. The trial court issued its first order on May

] 8, 2022 regarding May 06, 2022 hearing. The trial court denied plaintiff s motion for

appointment of counsel and granted defendants’ motion to strike and to cancel on continuance

May 09, 2022 evidentiary hearing the court did not rule on plaintiff May 13, 2022 motion for

leave to amend.

On May 24, 2022 plaintiff filed a notice of hearing setting July 14, 2022 for a hearing on

his May 13, 2022 motion for leave to amend

On July 14, the hearing the court heard argument about all the motion included

defendants July 11,2022 motions. Which plaintiff did not know anything about them.

On August 08, 2022 the trial court issued its order denying motion for leave to amend

an d granted defendants’ motion judgment on the pleading. Now plaintilf brings this timely

appeal for this Honorable Court.

argument

1) Whether the trial Court erred in granting defendants Motion judgment of the pleading.

Motion for judgment on the pleading pursuant to T.R.C.P. 12.0j; the motion is in effect

to a motion to dismiss for failure to state a claim upon which relief may be granted. Sakaan v.

Fedx Crop Inc, 2016 WL 7396050, at 6(Tenn. Ct. App. Dec 21,2016) quoting Timmins v.

linolsey,310 S.W.3d 834,838 (Tenn.Ct.App.2009). Thereof motion for judgment on the pleading

also challenges the legal sufficiency of the complaint. A defendant filing a motion either to

dismiss or motion for judgment on the pleading. Admits the truth of all the jelevant material

allegation contain in the complaint, but asserts that allegation fail to establish a cause of action,

Weeb,346 S.W.3d, at 426(quoting Brown v. Tenn. Title-Loans lnc,328-s.W.3d 850,854 (Tenn

2010) see also Sakaan,2016 WL 7396050, at 6) (citing TimminsG 10 S. W.3d: at 838). A court

resolves motion filed pursuant to either Rule 12.02(6) or 1 2.03 1 1 by examining the pleading

alone. Ellithorpe v.Weisamark, 479 S.W.3d 81 8,824(1 enn. 201 5). Sakaan. 2016 WL 7j96050, at

When determining whether a complaint should be dismissed foi failuie to state a claim

under either rule 12.06(6) or Rule 12.03.the court must const!ue the complaint liberally

presuming all factual allegations to be true and giving the plaintifl ol all leasonable inferences.

Tigg v. Pirelli Tire Crop,232 S.W.3d 28,31 32(Tenn.2007) (quoting Trau-Med Ins. Co v. Allstate

Ins Go,71 S.W.3d 691,696 (Tenn. 2008) Chill v. Tenn. Farmers Mut. Ins. Co. 2013 WL 3964272

(Tenn. Ct. App. 2013) (quoting Frankenberg v. River City Resort Inc. 2013 WL 1952980 at 2

(Tenn. Ct. App. 2013) the court should grant motion to dismiss or motion for judgment on the

pleading if it appears that the plaintiff cannot prove any set of fact in support of the claim

entitling him or her to relief. Webb, 346 S.W.3d at 426 l i ankenbeig. 201 j WL 1952980 at 2.

In the case at bar, the trial court footnote (Vol. II p. 1 83) “the fact stated herein are taken

from plaintiff complaint and defendant motion for judgment on the pleading. Additionally the

court has been asked to take judicial notice of certain facts and find it appropriate to do so as

follows (1) petition for order of protections & order for hearing (2) temporary order of protection

(3) order amending temporary order of protection (4) divorce docket at Davidson County Court

(5) true bill Montgomery County Circuit Court (6) motion to dismiss 2 and 3 of indictment (7)

judgment (8) transcripts of sentencing hearing on plaintiff criminal case.

The trial court abused its discretion because Rule 12.03 of T.R.C.P. state in part “that if

matters outside the pleading are presented to and not excluded by court the motion shall be

treated as one for summary judgment and disposed of as provided in Rule 56. In the plaintiffs

case the trial court included matters outside of the pleading (Judicial Notice) of eight documents

not relevant to the case without converting the motion for judgment on the pleading to a

summary judgment.

JUDICIAL NOTICE

2) Whether the trial court committed reversible error by taking judicial notice of disputed facts

Rule 201 of T.R.C.P. provides that a court may take judicial notice of any adjudicative

fact “not subject to reasonable dispute” and capable of accurate and ready determination by

reason to sources whose accuracy reasonably be questioned. Tenn. R. Evid. 201 (b). This

limitation means, almost by definition, if a party offers anything other than dilatory or pretextual

reason for opposing the taking of judicial notice, the court should view the fact a subject to

reasonable dispute and decline to take judicial notice of it. State v. Nunley, 22 S.W.3d 282, 288

(Tenn. Crim. App. 1999) (quoting Neil P. Cohen, Sarah Y. Sheppard & Donald F. Paine,

Tennessee Law of Evidence 44 (3d Ed. 1995) in'State v. Lawson, 291 S.W.3d 864 (Tenn. 2009)

the supreme court recognized that the federal courts have approved the taking of judicial notice

of filed documents so long as the purpose was to establish the fact of such litigation and related

filings, rather than to establish the truth of the matters asserted in the other litigation.” Lawson,

291 S.W.3d 870 (quoting Liberty Mut. Ins. Co. v. Rotches Port Packers Inc., 969 F.2d 1384,

1388 (2d Cir. 1992).

In plaintiff’s case the trial court erroneously took judicial notice of documents of other

courts file not related to this case. Tennessee historically permitted the taking of judicial notice

of facts from early proceeding only if they occurred in the same action. See Sims v. Barham, 743

S.W.2d 179, 181 (Tenn. Ct. App. 1987).

3) Whether the trial Court erred in holding that plaintiff failed to state a claim.

Dismissal under a motion to dismiss pursuant to Rule 12.03 for failure to state a claim

upon which relief can be granted, is warranted only when no set of facts will entitle the plaintiff,

or when complaint is totally lacking in clarity specificity. Dobbs v. Guenther, 846 S.W.2d 270,

273 (Tenn. Ct. App. 1992) (citations omitted). Furthermore, complaint should not be dismissed

no matter how poorly drafted, if it states a cause of actions

In plaintiffs case he clearly set the allegations of fraud and breach of contract. See

complaint pages 2-3 on the record.

*FRAlJD CLAIM

The essence of fraud is deception, Lobes v. Taylor, 195 S. W.3d 627, 634 (Tenn. Ct. App.

2005). In the most general fraud is a trick or artifice other use false information that induces a

person to act in a way he or she would not otherwise have acted. Rawlings v. John Flancock Mut

Life Ins. 78 S.W.Sd 291, 301 (Tenn. Ct. App. 2001). Fraud occurs when a person intehtionally

misrepresents a material fact to mislead another to obtain unfair advantage. Brown v. Birman

Care Ins. 42 S.W.3d 62, 66 (Tenn. 2001).

In plaintiffs case defendants defrauded plaintiff in several ways. First allegations of

fraud occurred on October 01,2018, when plaintiff and his friend Ali Sadifmet with defendant

Kevin Kennedy at his law firm. Defendant Kennedy mentioned to plaintiff and his friend Ali

Sadif that he knew plaintiff s wife Liela Chanane. Plaintiff and defendant Kennedy agreed that

the fee for the representation on the order of protection and divorce would be $2500. Plaintiff

paid defendant Kennedy $1000 and agreed to pay $500 a month until paid off. Plaintiff gives his

debit card to defendant Kennedy who left the meeting room with Plaintiff card and came back

with another attorney (Defendant Gordon Rahn) Defendant Kennedy ask plaintiff to sign a

receipt which was a contract in the name of defendant Rahn. and to repeat what plaintiff told him

to defendant Rahn, which plaintiff did. All this discussion happened in the presence of plaintiff

friend Ali Saif. Plaintiff find out later when he receives a copy of the fake contract with

defendants answer to plaintiff complaint with Board of Professional Responsibility that he did

not sign a receipt but a contract in the name of defendant Rahn. At October 01,2018, meeting at

no time defendant Kennedy informed plaintiff that he signed a contract in the name of defendant

Rahn, or informed plaintiff that the contract an hourly fee of $250 per hour instead of a total fee

of $2500. (Plaintiff only make $500 a week). Defendant Kennedy and plaintiff agree about

$2500 fee in the presence of plaintiff friend Ali Sadif. At no time defendant Kennedy show or

explain the contract to plaintiff, nor defendant Rahn, discuss the fee with plaintiff. Defendant

Kennedy trick plaintiff in signing the contract as a receipt. Defendant Kennedy falsly claim he

was not present when plaintiff and defendant Rahn issue the contract. The contract continued

three handwriting, defendant Kennedy handwriting on the top right corner, defendant Kennedy

who wrote plaintiff name and the fee of $2500. the other hand writing is defendant Rahn, the

signature is plaintiff. This is evidence contrary to defendant Kennedy claim that he was not

presented when the contract was issue, see (Vol. 11 page 166 p. 2). Plaintiff found out late that

defendant took plaintiffs case to take care of the opposing party Liela Chanane whom defendant

Kennedy have an affair with and to damage plaintiff. Defendants denied in their answer to this

action that the total fee is $2500. See page 14 paragraph on the record. On other hand they

admitted that plaintiff paid $1000 toward $2500 fee, see (Vol. 11 page 164). Plus, the contract did

not continue the $1000 plaintiff paid toward the $2500, see page 1 72 on the record.

The second allegation of fraud occurred on October 09, 201 8, when defendant Rahn

made false and misleading statement to plaintiff regarding the reason for continuance October

09, 20T8, hearing to November 13, 2018, defendant Rahn informed plaintiff that they reset the

hearing until November 13, 2018, because the Judge was running late that day and the interpreter

can not wait for the Judge arrival because she had another job. Defendant Rahn informed

plaintiff before 9:00 a.m. on December 07, 2020, plaintiff attorney on the criminal case gave

plaintiff a box full of papers at the court room. A couple days later plaintiff found in that box an

ordered agreement for continuance the October 09. 201 8. hearing. Defendants never informed

plaintiff or mentioned they make agreement continue with the opposing party’s attorney Mr.

Kevin Fowler. Plaintiff never been informed or agree to continue and the continuance was not in

plaintiffs best interest. After plaintiff filed a complaint against defendants with the Board of

Professional Responsibility, they claim another story. This time they claim that the opposing

party attorney Mr. Fowler request interpreter on behalf of his client Liela Chanane.On

defendants answer to this action they repeat the first claim that the judge was running late

(Vol.I.P.14). The third reason of continue is come from the opposing party attorney Mr. Fowler

at plaintiff criminal trial (plaintiff informed the trial court in his “Response to Defendant’s

Answer,” (Vol.I.P.30-34), which the trial court striked. Plaintiff also served the opposing party

attorney Mr. Fowler with subpoena to appear at May 09, 2022, hearing, which the trial court

cancelled. Plaintiff also informed the trial court at May 06, 2022, hearing about Mr. Fowler

testimony. For unknown reason the trial court did not include this information on its May 18,

2022, order regarding May 06, 2022, nor the order mentioned the trial court advice to plaintiff

that he can amend his complaint, nor the order mention the three motion defendants filed only

three days before May 6, 2022 hearing, nor the order mention that plaintiff did not receive

defendants answer on time, plaintiff receive defendants answer after 50 days from the court clerk

not from defendants, see a copy of the clerk of the trial court to plaintiff on February 08, 2022,

which is on the supplement record (see volume 4 on the record) for unknown reason the letter

was not on the record as will Mr. Fowler Subpoenaed plaintiff sent to this court Mr. Fowler

testimony transcripts as exhibit. Plaintiff was denied to amend his complaint to included the

transcripts of Mr. Fowler testimony, which he testified that defendant Rahn who request the

continue the October 09, 201 8 hearing.

Plaintiff rely on a case law similar to plaintiff case, see Nobes v. Earhart, 769 S.W.2d

868, in both cases Nobes and plaintiff the client’s attorney was having an affair with the

opposing party, in both cases attorneys defrauded their client in the best interest of the opposing

party. Plaintiff strongly beljeve he state a claim for fraud.

^Breach of Contract

The Tennessee Supreme Court has explained, in a breach of contract action claimant must

prove the existence of a valid enforceable contract deficiency in performance amounting to a

breach and damages caused by the breach. See Fed Ins. Co. v. Winters, 354 S.W.3d 287. 291

(Tenn. 2001).

In plaintiffs case there was a written contract even the contract is forgery and an oral

agreement in the presence of plaintiff friend Ali Sadif, who plaintiff served with a subpoena to

appear at May 09, 2022, hearing, which the trial court canceled. (Vol.I.P.l 0) The written contract

stated “represent on order of protection plus uncontested divorce defined to both parties signing

on MDA no appeal no guarantees.” (Vol.Il.P. 172) on the record. The oral agreement is for

defendants to file on plaintiffs behalf a motion for exclusive possession of plaintiff residence in

the present of Ali Sadif. Defendants falsely claimed in their motion to strike and to cancel or

continue the May 09, 2022, hearing “plaintiff alleges he was the home sole owner as will be

addressed in a dipositive motion. The deed demonstrates this claim entirely false, the home was

jointly owned with Chanane. See footnote (Vol.I.P.39). Defendant did not submit any evidence

to support their claim. On the other hand, plaintiff submitted prove that he is the sole owner of

the home, (Vol.Il.P. 1 76-1 77). Defendants making excuses for their failure to file a motion for

exclusive possession of plaintiffs residence. Defendants intentionally and knowingly did not

move to file such a motion because defendant Kennedy had an affair with plaintiff s wife I.iela

Chanane. Defendants agreed with the opposing attorney Mr. Fowler to continue October 09,

2018, to November 13, 2018, without plaintiff authorization and in the best interest of the

opposing party Liela Chanane.

On December 07, 2020, plaintiff attorney on the criminal case give plaintiff a box full of

papers. A couple of days later plaintiff find in that box a copy of the order agreement continues

the October 09, 2018, hearing. As soon as plaintiff finds the order agreement, he sent a letter to

defendant Kennedy on January 03, 202 1, (Vol.Il.P.163). Plaintiff received an answer on January

..16...

] 1. 2021 from defendant Rahn not from Defendant Kennedy to whom plaintiff sent the letter.

(Vol. II. P.164). With defendants' answer was a check of $1000 full refund of the money plaintiff

paid defendant Kennedy, (Vol. 11.P. 1 73). Plaintiff filed a complaint against defendants with the

Board of Professional Responsibility, (Vol.ll.P.165-169). To which defendant answer, (Vol.11.P.

166-168). With defendant's answer was a copy of the fake contract, (Vol.ll.P.l 72). Defendant

claim in their answer with the Board that the reason for continue October 09, 2018, hearing

because the opposing party request an interpreter for his client Liela Chanane, (Vol.ll.P.l67.P.5).

Defendants also claim that a hearing with interpreter present was not going to happened that day,

(Vol.I.P.67.P.7), on the same page 167 paragraph 8 defendants claim that the particular date was

given to the parties by the court, this claim is entirely false because the interpreter was at the

court room on October 09. 2018, plaintiff served her with a subpoena to appear at May 09, 2022

hearing which the trial court canceled, (Vol.l.P.l 1). Plaintiff also served the opposing party

attorney on the order of protection Mr. Fowler with a subpoena to appear at May 09, 2022, see

supplement record, (volume 4 on the record) which the trial court cancelled and for some

unknown reason Mr. Fowder subpoena was excluded from appellate recoid until plaintiff fled a

motion to supplement the record with Mr. Fowler testify for the state at plaintiff criminal trial

said that the interpreter was at the court room on October 09, 2018, and that the interpreter

helped him explain what was. going on that day to his client, he also testify that the reason for the

continue because defendant Rahn request the continue, he also testify that him who drafted the

order agreement and him who sign it on behalf of defendant Rahn, which contrary to defendant

Rahn claim that he review the order and give his approval, the question if he review the order

why he did not sign it him self why he give it-back to Mr. Fowler to sign it on his behalf,

(Vol.11.P. 167.P.9).

Plaintiff informed the trial court about the opposing party attorney testimony on motion

“Respond to defendant Answer1 and at may 06, 2022 hearing, and at July 14, 2022 hearing. The

trial court at May 06: 2022 advised plaintiff that he could amend his complaint, which plaintiff

file a motion for leave to amend on May 13, 2022, to include Mr. Fowler testimony transciipts,

(Void.P.l 1 8). The trial court May 1 8, 2022 order did not address the motion for leave to amend

which was filed before the trial court issue its order on May 18, 2022, on other hand defendants

admitted on its Januaiw 25, 2023, “Response to appellant motion to supplement the record with a

statement of evidence, which they state “the court only advised plaintiff that he could move to

amend.”

Plaintiff filed a motion for leave to amend on May 13, 2022, the trial court denied the

motion for failure to comply with T.R.C.P., also futile (Vol.P. 118), see also July 14, 2022, (VoI

HI transcripts regarding Mr. Fowlers testimony).

4). Whether the trial court erred in holding that plaintiff claims are barred by the applicable

statute of limitation.

FRAUD STATUTE OF LIMITATION

In Tennessee the applicable statute of limitation for fraud is three (3) years not one year

as the trial court apply (see trial court order granting defendants motion for judgment on the

pleading), see (Vol.Ill.P. 187). See Alexander v. Third Nat Bank, 915 S.W.2d 797, 799, 800

(Tenn. 1996). The Supreme Court has held that economic loss by plaintiff from fraud or

mispresentation is an injury to personal property requiring application of three (3) years

limitations see Vance v. Schulder, 547 S.W.2d 927, 932 (Tenn. 1997). Additionally, the supreme

court held that fraud in inducement of a contract sound in a tort and is theiefoie. subject to

T.C.A. 28-3-105 three (3) years limitations period see Am Fid Fire Ins. v. Tucker, 671 S.W.2d

837. 84] (Tenn. Cl. App. 1983). Therefore, the applicable statute of limitation is three (3) years

period in T.C.A. 28-3-105. However, pursuant to discovery rule “the statute of limitations will be

tolled until plaintiff knows.”

Defendants defrauded plaintiff in several ways (1) defendant Kennedy trick plaintiff in

signing the contract as a receipt (2) plaintiff never agree to an hourly rate of $250 per hour (3)

defendant Kennedy never informed plaintiff that he signed a contract in the name of defendant

Rann (4) defendant Rahn mislead plaintiff by false statement regarding the reason for continue

October 09, 201 8. (5) defendants agree with the opposing party attorney to continue the hearing

without plaintiff authorization (6) defendants never explain the contract to plaintiff as required

by the law.

1. The client fully understands the contract meaning and effect

2. The attorney and the client shared the same understanding of the contract

3. The terms of contract are just and reasonable.

See Peoples Nat. Bank of Washington v. King, 697 S.W. 2d 344, 346 (Tenn. I 995). In

plaintiffs case defendants did none of this instead they trick and mislead plaintiff. Never

explained the contract or the contract was just, and the contract did not continue the $1000

plaintiff paid towards $2500 fee agree about.

BREACH OF CONTRACT STATUTE OF LIMITATIONS

Plaintiff claim was on breach of contract, not legal malpractice as the trial court implied.

See Jordan v. Clifford 2010 WL 2075871. In plaintiffs case defendants breached the contract by

failing to provide the service the plaintiff paid them for. There are no allegations of negligence or

defendants fell below the standard care an element for legal malpractice. Instead defendants

intentionally and knowingly did not perform the service plaintiff paid them for. Defendants were

working with the opposing party Liela Chanane and her attorney to damage plaintiff and in the

best interest of the opposing part Liela Chanane whom defendant Kennedy have an affair with.

The statute of limitations for breach of contract is six (6) years T.C.A. 28-3-109.

5) Whether the trial court erred in holding that plaintiff claims sound in tort of legal malpractice

A legal malpractice claim requires proof of the following element (1) that the accused

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

damages. (4) That the breach cause in fact of the plaintiff damages. (5) That attorney negligence

was proximate, or legal cause ot plaintiff damages.

In plaintiff case there was no negligent or fell below standard care on the part of

defendants as an element of legal malpractice, but defendant intentionally and knowingly tricked

mislead, false statements, and refuse to perform the service plaintiff paid for. Instead defendants

were w orking with the opposing party attorney to take care of the opposing party Liela Chanane

who defendant Kennedy had an affair with and to damage plaintiff. The tricks, misleading, false

statements, and nonperformance are elements of fraud and breach of contract.

6) Whether the trial court erred in denying plaintiff s motion for leave to amend

The Tennessee Supreme Court has stated the following principles about pro-se litigation

Parties who decide to represent themselves are entitled to a fair and equal treatment by the court.

The court should consider that many pro-se litigants have no legal training and little familiarity

with the judicial system, however, the court must also be mindful of boundaries between fairness

to a pro-se litigant and unfairness to pro-se litigant adversary thus, the court must not excuse pro20

s'6 liligani from complying with the same substantive and procedural rules that represented

parties are expected to observe. Young v. Barrow, 130 S.W.3d 59, 62. 63 (Term. Ct. App. 2003)

(citations omitted) see also Hessmer v. Hessmer, 138 S.W.3d 901,903 (Tenn. Ct. App. 2003)

additionally, Tennessee Supreme Court allows pro-se litigants some latitude in preparing their

court filings. Young, 130 S.W.3d at 63.

*Tenn. R. Civ. P. 15.01.

Tennessee law has a history of favoring amendment as noted by Supreme Court and

reflected in this state rules of civil procedure, the court states that the rule of civil procedure

“were designed to simplify and ease the burden of procedure under the sometimes harsh and

technical rules of common law pleading.” Branch v. Warren, 527 S.W.2d 89, 91(1 enn. 1975)

regarding amendment in particular, the court has adopted an expansive view that favors party

seeking to amend:

Rule I 5.01: provides that leave to amend shall be freely given when justice so requires.

This provision in the rule substantially lessens the exercise of pre-trial discretion on the part of

trial judge indeed. The statute (T.C.A. -1505) which conferred a measure of discretion on trial

judge was repealed and Rule 15 in its place instead: That rule not construction it means precisely

what it says, that leave shall be freely given.

A plethora of cases illustrates the willingness of Tennessee Courts permit amendments

under Rule 15.01. See Branch v. Warren, 527 S.W.2d 89 (Tenn. 1975); Tennessee Dept, of

Mental Health & Mental Retardation v. Hughes, 531 S.W.2d 299 (Tenn. 1975): Matus v.

Metropolitan Gov’t of Nashville, 128 S.W.3d 653 (Tenn. Ct. App. 2003); Coker v. Redick, 1995

WL 89706 (Tenn. Ct. App. 1995); HMF Trust v. Bankers Trust Co. 827 S.W.2d 296 (Tenn. Ct

App. 1991); Harris v. St. Mary’s Medical Center, 726 S.W.2d 902 (Tenn. 1987); Garthright v

First Tennessee Bank of Memphis, 728 S.W.2d 7 (Tenn. Ct. App. 1986). A court does not abuse

its discretion by granting leave to amend a complaint when the amendment is necessary to bring

the court an issue which if found in favor of the pleader, would be conclusive of the case. Liberty

Mutual Ins. Co. v. Taylor, 590 S.W.2d 920, 921 (Tenn. 1979). Furthermore, the Supreme Court

said that when the court grants a motion to dismiss for failure to state a claim, only extraordinary

circumstances would prohibit the plaintiff from exercising the right to amend its complaint

Richland County Club Inc. v. CRC Equities Inc. 832 S.W.2d 554, 559 (Tenn. Ct. App. I 991).

In plaintiff s case the trial court advised plaintiff at May 06, 2022 hearing, that he could

amend his complaint after the trial court striken plaintiffs “Response to Defendants Answer

Which was a counterclaim reply to defendants’ false information of their answer. The trial court

did not mention its advice to plaintiff on its May 18, 2022, order. Defendants confirmed in their

January 25, 2023 “answer to appellant motion to supplement the record with a statement of

evidence.” That the court advice plaintiff he could move to amend his complaint. Nor the trial

court approved plaintiffs motion to supplement the record with a statement of evidence

7) Whether the trial court denied plaintiffs due process.

Procedural due process, however, does not prevent deprivations of life, liberty, or

property but indeed it simply “requires state and local governments to employ fair procedures

when deprive person of constitutionally protected interest in life, liberty, or properly. Cheatham

County v. Cheatham County Bd. Of Zoning Appeals, 2012 WL 5993757 at 3 (Term. Ct App

2012) (quoting Parks Props v. Maury County, 70 S.W.3d 735, 743 (Tenn. Ct. App. 2001)

Procedural due process requires “that individuals be given an opportunity to have their legal

claims heard at the meaningful time and in a meaning manner.” Lynch, 205 S. W.3d at 391

(citing Logan v. Zimmerman Brush Co. 455 U.S. 422, 429-30, 102 S.Ct.l 148, 71 L. Ed.2d 265

(1982): Manning v. City of Lebanon, 124 S.W.3d 562, 566 (Tenn. Ct. App. 2003).

In plaintiffs case he sent a letter to trial court on February 02, 2022, informing the trial

court that after 48 day still no answer from defendants, plaintiff filed the same day a notice of

hearing setting May 09, 2022 for a hearing (Vol.I.P.29). Plaintiff also served four witnesses with

a subpoena 10 appear at May 09, 2022, hearing they are, Ali Sadif, Hebba Abulsaad, Beverly

Sharp, Kevin Fowler. Plaintiff received a letter and a copy of defendants answer from the trial

court clerk dated February 08, 2022. See a .copy if the letter in the supplement record (Vol.llll).

The copy of defendants answer plaintiff received from the trial court clerk stated in ns certificate

of service a copy of the answer was sent to plaintiff on January 14, 2022. This claim is false.

Plaintiff never received an answer from defendants but from the trial court clerk as the proof

showed.

On February 23, 2022, plaintiff filed a counterclaim reply to defendants’ false service

claim titled “Response to Defendants Answer.” (Vol.P.30-34). In which plaintiff informed the

trial court clerk after 48 days still no answer from defendants, plaintiff request to the trial court

that defendants submitted proof they served plaintiff with an answer. On April 06. 2022

defendants filed a motion to strike and cancel or continue the evidentiary hearing, Defendants

claims they did not know about May 09, 2022 hearing until late March. (VoI P 45), which means

that defendants have more than 40 days to prepare for May 09, 2022 hearing, plus defendants

filed on April 22. 2022, a notice of hearing to set May 06, 2022, for a hearing. Defendants

schedule their hearing on May 06, 2022, three days before plaintiff requested hearing May 09.

2022, plaintiff have already served four witnesses to appear at May 09, 2022, hearing. Defendant

did not prejudice by not knowing about May 09, 2022 hearing until late March. To show

defendants bad faith act, they waited until three days before May 06, 2022, hearing to fie three

motions, they are (1) supplement to motion to cancel or continue evidentiary hearing (2) motion

for judgment on the pleading (3) memorandum in support of a motion for judgment on the

pleading. (Vo).P.47-48, 49-51, and 52-116).

Plaintiff informed the trial court at May 06, 2022, hearing about this act from defendants,

which the service was in bad faith, the defendants’ counsel knew its impossible for plaintiff to

receive these motions before May 06, 2022 when she mailed them on May 03, 2022, and in

violation of T.R.C.P. 6.04 and 6.05, which states in part.

Rule 6.04.

(1) A written motion other than one which may be heard ex part and notice of hearing

shall be served no later than five days before the time specified for the hearing.

Rule 6.05

Whenever a party has the right or is required to do some act or take some

proceeding within prescribed period after the service of a notice or other papers upon

such parties and the notice or papers are served upon such party by mail three days shall

be added to prescribed period.

Defendant served plaintiff by mail on May 03, 2022 and the hearing was held on May 06

2022 defendant did not give plaintiff five days as required by Rule 6.04, nor they add three days

as required by Rule 6.05 when the service made by mail for plaintiff to prepared and answered

The trial court let defendants’ do the same thing on July 14, 2022 hearing. On Juh 1 1

2022, defendants filed another three motions they are (1) response to motion for appointment of'

counsel (2) response to motion for leave to amend (3) reply in support of motion for judgment on

the pleading. (Vol.P.142-144, 145-148, and 149-154). Again, and in violation of T.R.C.P. 6.04

and 6.05 plus the trial court issue an order to transport plaintiff from Mountain City prison to

Montgomery County Court for a hearing on July 14, 2022. The order dated July 1 1, 2022

Plaintiff is US. citizen originally from Morocco his English is poor he communicates with the

court via interpreter. Defendants takes advantage of plaintiff who is pro-se and the trial court

showed its bias by giving them leeway and by not addressing all of plaintiff claims. For example,

the court did not rule on plaintiff motion for a court order compelling production of documents

(Vol.l.P.l 23). On July 21, 2022, plaintiff filed a motion requesting for time to file supplemental

motion for judgment on the pleading and amendment (Vol. II. P.156-160), because plaintiff did

not receive defendants motions until the July 14, 2022, hearing was over.

*The trial court did not address that defendant Kennedy knew plaintiff s wife Ltela

Chanane which she was the opposing party.

*The trial court did not address plaintiffs claim that defendant Kennedy tricked plaintiff

in signing the contract as a receipt.

The trial court did not address why the contract not included $1000 plaintiff paid toward

$2500

*The trial court did not address why defendant Rahn did not sign the order agreement if

he reviewed it and gave his approval.

Plaintiff did not have a fair hearing on both hearings’ dates, May 06, 2022 and July 14

2022, and when trial court showed its bias and not addressed all of plaintiff s claims and by

applying the wrong law (statute of limitations for fraud - is THREE years NOT ONE year) as

the trial court applied T.C.A. 28-3-105. (Vol. III). Plaintiff informed the trial court that he was

convicted of first degree murder, felony murder, and especially aggravated burglary, because of

defendants’ fraud and dishonesty, and because defendants agreed with the opposing attorney

party to continue the October 09, 2022, hearing without plaintiffs authorizations (the state used

the order agreement to convict plaintiff for especially aggravated burglary, and felony murder,

because the order agreement shows it was by agreement of the parties. The evidence plaintiff

submitted in this case showed that plaintiff knew nothing about the agreement on October 09

201 8. And if the ordered agreement is valid defendant would not claim two different stories for

continuing the October 09, 201 8 hearing.

Plaintiff on his motion to complete the appellate record pursuant to T.R.App.24(e) due to

extraordinary circumstances, dated February 16.. 2023, on page 2 stated (however in its footnote

to this point the trial court. Clearly acknowledged that the statement was essential to the

argument this case was dismissed on Judgment on the Pleadings motion.) See trial court Order

on statement of evidence footnote. Plaintiff continue writing (that was never served on plaintiff.)

because defendant filed his motion on July 11.2022, and the hearing was held on July 14, 2022.

(Vol.P.149-154), defendants in their Response to February 16, 2023 motion to complete the

record, falsely noted Houbbadi claim that the trial court acknowledge in a footnote its February

07, 2023 order. That appellant did not receive notice of the dispositive nature of the hearing or

time to prepare or respond to that motion to dismiss. The trial court footnote says nothing of the

kind.

See again plaintiff motion to complete the appellate record, plaintiff said nothing of that

kind, defendants fabricating everything compared what plaintiff wrote in his motion to complete

the appellate record with the trial court order on statement of evidence footnote, and to defendant

Response to February 16, 2023 motion to complete the appellate record footnote

CONCLUSION

For the reason mention above, the plaintiff requests this honorable court to reverse the

Montgomery county Court order dismissing plaintiff claims for fraud and breach of contract, and

find plaintiff was denied due process, and to grant plaintiff a change of venue because the

defendants works with Judge in the same court and county and that the trial court already showed

its bias.

{

Respectfully Submitted.

JLnJf k/fyil.

Hamid Houbbadi

Pro’se Petitioner

N.E.C.X.

P. O. Box 5000

Mountain City, TN 37683-5000

CERTIFICATE OF SERVICE

] certify that I have served a true and correct copy of the foregoing upon counsel for the

Appellees by placing same in the United States Mail, with sufficient postage thereon, and

addressed as follows:

Appellate Court Clerk, James M. Hivner

401 7,h Ave. N. Ste 100, Supreme Court Bldg.

Nashville, Tennessee 37219

Nora A. Koffman, Esq.

602 Sevier Street, Suite 300

Johnson City, Tennessee 37604

On this

day of

-i

20$Py

Hamid Houbbadi

Appendix "D"

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

HAMID HOUBBADI,

Appellant,

Case No. #M2022-01166COA-R3-CV

KENNEDY LAW FIRM,

PLLC, KEVIN KENNEDY,

and GORDON RAHN

Circuit Court,

Montgomery County,

Civil Action No. CC-21-CV2457

Appellees.

BRIEF OF DEFENDANTS-APPELLEES,

KENNEDY LAW FIRM, PLLC, KEVIN KENNEDY,

AND GORDON RAHN

Appeal from the Circuit Court of Tennessee

for the 19th Judicial District at Clarksville

Joshua A. Powers

BPR #015639

BAKER, DONELSON,

BEARMAN, CALDWELL &

BERKOWITZ, PC

633 Chestnut Street, Suite 1900

Chattanooga, TN 37450

(423) 756-2010 (phone)

(423) 752-9518 (fax)

inowers@bakerdonelson.com

4871-4448-4462

Nora A. Koffman

BPR #038025

BAKER, DONELSON,

BEARMAN, CALDWELL &

BERKOWITZ, PC

602 Sevier Street, Suite 300

Johnson City, TN 37604

(423) 928-0181 (phone)

(423) 928-5694 (fax)

nkoffinan@bakerdonelson.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES

111

INTRODUCTION

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

STATEMENT OF THE CASE

STATEMENT OF THE FACTS

Plaintiffs Legal Representation

Murder of Houbbadi’s Wife and Houbbadi’s Arrest and

Prosecution....................................................................................

Initiation of Suit

Answer, Motion to Dismiss, and Non-dispositive Motion

Practice...........................................................................................

Motion for Judgment on the Pleadings and Motion to Amend

Complaint.......................................................................................

Hearing on the Rule 12.03 Motion and Motion for Leave to

Amend.............................................................................................

Trial Court’s Memorandum Order and Notice of Appeal

ARGUMENT

Law and Argument

Standard of Review for Rule 12 Dismissal

Judicial Notice of Court Documents Was Appropriate

Rule 12.03 Motion Properly Granted

4871-4448-4462

Breach of Contract is Inapplicable and Inadequately

Pleaded

Fraud Was Inapplicable and Inadequately Pleaded...28

Plaintiffs Claims Were Untimely

Plaintiffs Claimed Damages are Not the Result of

Defendants’ Action or Inaction.................................. . 34

Plaintiff s Due Process and Other Miscellaneous

Arguments are Unavailing....................................................

CONCLUSION

CERTIFICATE OF SERVICE

CERTIFICATE OF COMPLIANCE

4871-4448-44G2

TABLE OF AUTHORITIES

Page(s)

Cases

Alexander v. Third Nat. Bank,

915 S.W.2d 797 (Tenn. 1996)..................................................

Am. Fid. Fire Ins. Co. v. Tucker,

671 S.W.2d 837 (Tenn. Ct. App. 1983).................................

ARC LifeMed, Inc. v. AMC-Tennessee, Inc.,

183 S.W.3d 1 (Tenn. Ct. App. 2005)......................................

26, 35

Bluff City Comm. Dev. Corp.,

387 S.W.3d 525 (Tenn. Ct. App. 2012).................................

Brungard v. Caprice Records, Inc.,

608 S.W.2d 585 (Tenn.Ct.App. 1980)................ ....................

Byrd & Assoc., PLC v. Siliski,

2007 WL 3132929 n.5 (Tenn. Ct. App. Oct. 26, 2007).......

Campbell County Bd. of Educ. v. Brownlee-Kesterson, Inc.,

677 S.W.2d 457 (Tenn. Ct. App. 1984).................................

Carvell v. Bottoms,

900 S.W.2d 23 (Tenn. 1995).....................................................

Cochran v. City of Memphis,

No. W2012-01346-COA-R3-CV, 2013 WL 1122803 (Tenn. Ct. App.

Mar. 19, 2013).............................................................................................. 25

Coffee Cnty. v. Spining,

No. M202001438COAR3CV, 2022 WL 168145 (Tenn. Ct. App. Jan. 19

2022).......................................................................................

Counts v. Bryan,

182 S.W.3d 288 (Tenn. Ct. App. 2005)......................

Ferrell v. Long,

No. 2009 WL 1362321 (Tenn. Ct. App. May 14, 2009)

27, 31

Gibson v. Trant,

58 S.W.3d 103 (Tenn. 2001)..............................................

Hawk v. Chattanooga Orthopaedic Grp., P.C.,

45 S.W.3d 24 (Tenn. Ct. App. 2000)...............................

Haynes v. Bass,

No. W2015-01192-COA-R3-CV, 2016 WL 3351365 (Tenn. Ct. App.

June 9, 2016)................................................................................................ 25

iii

4871-4448-44G2

Homestead Group, LLC. v. Bank of Tennessee,

307 S.W.3d 746 (Tenn. Ct. App. 2009)...................

Houghland u. Security Alarms & Serus., Inc.,

755 S.W.2d 769 (Tenn. 1988)....................................

John Kohl & Co. P. C. u. Dearborn & Ewing,

977 S.W.2d 528 (Tenn. 1998)....................................

Jordan v. Clifford,

2010 WL 2075871 (Tenn. Ct. App. May 25, 2010)

Karr v. Saint Thomas Midtown Hosp.,

No. M202000029COAR3CV, 2021 WL 457981 (Tenn. Ct. App. Feb. 9,

2021)................................................................................

Keith v. Murfreesboro Livestock Mkt., Inc.,

780 S.W.2d 751 (Tenn.Ct.App.1989).......................

Kincaid v. SouthTrust Bank,

221 S.W.3d 32 (Tenn. Ct. App. 2006)......................

29, 30

Lane v. Becker,

334 S.W.3d 756 (Tenn. Ct. App. 2010)...................

Leach v. Taylor,

124 S.W.3d 87 (Tenn. 2004).......................................

Lufkin v. Conner,

338 S.W.3d 499 (Tenn. Ct. App. 2010)...................

Meyer v. Pellegrin,

27, 28

2019 WL 5777759 (M.D. Tenn. October 10, 2019)

Meyer v. Pellegrin,

No. 3:19-CV-00413, 2019 WL 5727579 (M.D. Tenn. Nov. 5, 2019)

Myers v. Amisub (SFH), Inc.,

382 S.W.3d 300 (Tenn. 2012)................................

Nobes v. Earhart,

769 S.W.2d 868 (Tenn. Ct. App. 1988)...............

Redwing v. Cath. Bishop for Diocese of Memphis,

363 S.W.3d 436........................................

Riggs v. Burson,

941 S.W.2d 44 (Tenn. 1997)..................

Ritter v. Custom Chemicides, Inc.,

912 S.W.2d 128 (Tenn. 1995)................

Stacks v. Saunders,

812 S.W.2d 587 (Tenn. Ct. App. 1990)

4871-4448-4462

28, 29, 35

Stein v. Davidson Hotel Co.,

945 S.W.3d 714 (Tenn. 1997).....................................

Stephens v. Home Depot U.S.A., Inc.,

529 S.W.3d 63 (Tenn. Ct. App. 2016)......................

Story v. Bunstine,

538 S.W.3d 455 (Tenn. 2017)........................ ............

Swett v. Binkley,

104 S.W.3d 64 (Tenn. Ct. App. 2002).....'................

Tanaka v. Mears,

980 S.W.2d. 210 (Tenn. 1998).............................

24, 25

27, 31

Vance v. Schulder,

547 S.W.2d 927 (Tenn. 1977)...............................

Waldron v. Delffs,

988 S.W.2d 182 (Tenn. Ct. App. 1998)...................

Webb v. Nashville Area Habitat for Humanity, Inc.,

346 S.W.3d 422 (Tenn. 2011).....................................

Willis v. Dept, of Corrections,

113 S.W.3d 706 (Tenn. 2003).....................................

Woodruff by & through Cockrell v. Walker,

542 S.W.3d 486 (Tenn. Ct. App. 2017)...................

Young v. Barrow,

130 S.W.3d 59 (Tenn. Ct. App. 2003)..................

21, 22, 30

Statutes

T.C.A. § 29-26-121 .............

Tenn. Code Ann. § 28-3-104

Tenn. Code Ann. § 28-3-105

2, 4, 13, 22, 30, 31, 32, 33

Rules

Tenn. Rule Civ. P. 12.02...............

Tenn. R. App. P. 27(b)..................

Tenn. R. Civ. P. 8.01......................

Tenn. R. Evid. 201.........................

Tenn. Rule of Civ. P. 6.04.............

Tenn. Rule of App. P. 30(e)..........

Tennessee R. of Civil Procedure 5

4871-4448-4462

22, 23, 24, 38

24,26

3, 13, 39

.. passim

Term. Rule Civ. P. 7.01.

Term. Rule Civ. P. 9.02.

Term. Rule Civ. P. 12.03

Term. Rule Civ. P. 40....

4871-4448-4462

INTRODUCTION

This is a professional liability action against Defendants-Appellees

Kennedy Law Firm, PLLC (“KLF”) and attorneys Kevin Kennedy

(“Kennedy”) and Gordon Rahn (“Rahn”) (collectively “Defendants”). Pro

se Plaintiff-Appellant’s (“Houbbadi” or “Plaintiff’) Complaint purports to

assert breach of contract and fraud claims.

Defendants moved for

judgment on the pleadings for failure to assert a claim pursuant to

Tennessee Rule of Civil Procedure 12.03 (“Rule 12.03 Motion” or “Motion

for Judgment on the Pleadings”):

First, the breach of contract and fraud claims were inadequately

pleaded.

Second, the claims, in actuality, sounded in legal malpractice and

were untimely filed under the applicable statute of limitations.

Finally. Houbbadi’s asserted “damages” — i.e. his arrest and

indictment for the murder of his wife and the ramifications of these

criminal proceedings on his life. These so-called “damages” were not and

could not have been the result of any action or inaction by Defendants.

The “damages” were the result of Houbbadi murdering his wife.

Accordingly, the Circuit Court of Montgomery County correctly

denied Plaintiff s Motion for Leave to Amend his Complaint as futile (and

procedurally deficient), found Defendants’ motion well-taken, including

determining that the claims were barred by the expiration of the

limitations period, and dismissed the action.

4871-4448-4462

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

Pursuant to Tenn. R. App. P. 27(b), Defendants identify the issues

on appeal in light of Plaintiffs unclear presentation of the issues and

attempt to obtain appellate relief based upon information outside the

pleadings and matters not preserved in the trial court record:

Whether the trial court properly took judicial notice of various

records of the Montgomery County General Sessions and Circuit Courts

and the Davidson County divorce docket in granting Defendants’ Motion

for Judgment on the Pleadings.

Whether the trial court properly granted Defendants’ Motion

for Judgment on the Pleadings for:

Failure to state a claim for and adequately plead breach

of contract

Failure to state a claim for and adequately plead fraud;

Whether Plaintiffs action accrued on or before December 7,

2020 resulting in Plaintiffs December 14, 2021 Complaint being

untimely and barred by the statute of limitations set forth in Tenn. Code

Annotated § 28-3-104(c) as found by the Court in granting the Rule 12.03

motion.

Whether the trial court properly denied Plaintiffs Motion for

Leave to Amend his Complaint because of:

the failure follow Tennessee procedure to seek to amend,

and

the futility of amendment.

4871-4448-4462

Whether Plaintiffs unpreserved legal arguments and factual

allegations outside the Technical Record allow for appellate relief.

STATEMENT OF THE CASE

On December 14, 2021, pro se Plaintiff, Hamid Houbbadi, then an

inmate in the Montgomery County Jail, filed a handwritten and often

incomprehensible and incoherent Complaint. (TR l).1 The Complaint,

which purports to assert breach of contract and fraud claims, arose from

Plaintiffs October 1, 2018 consultation with and engagement of

Defendants to represent him in (1) an Order of Protection (“OP Case”)

case in Montgomery General Sessions Court filed by his wife, Leila

Chanane, and (2) a divorce from Chanane. (TR 1,

3-9). Defendants

appeared for Houbbadi at the October 9, 2018 OP Case hearing. (TR 2,

10-11). The hearing was continued for a month and Order of

Protection terms extended during this period. (Id.).

Plaintiff was

arrested for murdering his wife on October 20, 2018. (Id.).

Plaintiff

blames his wife’s death and the ramifications of his own actions (i.e. his

“damages”) on Defendants.

On May 3, 2022, Defendants moved for judgment on the pleadings

pursuant to Rule 12.03 due to Plaintiffs failure to adequately plead fraud

and breach of contract accordance with Tennessee authority, including

Tennessee Rule of Civil Procedure 9.02. Plaintiffs claims, in actuality,

1 The Technical Record consists of five volumes - two primary written

record volumes, a Transcript volume, and two supplemental record

volumes. The primary written record volumes are referred to hereafter

as “T.R.” with the Technical Record page and volume, if necessary, listed.

4871-4448-4462

sounded in legal malpractice and were not timely asserted under Tenn.

Code Ann. § 28-3-104. Lastly, Plaintiffs claimed “damages,” i.e. his arrest

and indictment on murder charges and the various ramifications on his

life, were not the result of any action or inaction by Defendants as

required by the elements of any cause he attempted to assert in the

Complaint. Defendants asked the Court to take judicial notice of certain

court records as a part of this motion.

Plaintiff moved to amend his Complaint on May 13, 2022, merely

claiming there was “new discover evidence [sic]2 at Plaintiff murder trial”

and without tendering a proposed pleading. (TR 118). Although not

articulated in the amendment motion, Plaintiffs appellate brief now

alleges that Defendants obtained a continuance in the OP Case and did

not pursue exclusive occupancy of his home on October 9, 2018 in order

to benefit Plaintiffs wife. Plaintiff now contends Kennedy was having an

affair with his wife.

Regardless, the “damages” flowed directly from

Plaintiffs own criminal conduct. Defendants objected to amendment.

(TR 145-48). The motion was procedurally deficient. Plaintiff failed to

tendered a proposed amended pleading or otherwise explain his grounds

to amend. It was futile for the reasons stated in the Rule 12.03 Motion.

(Id.).

Plaintiff filed two responses in opposition to the Rule 12.03 Motion.

(TR 127-28; 129-33). He concluded the second brief with the argument

that he “would not be charge and convicted with murder if defendants did

2 Plaintiffs filings contain various grammar and spelling errors. Rather

than insert [sic] for all such errors, Defendants advise that all quoted

content herein is presented as written by Plaintiff.

4871-4448-4462

their job in good faith ... if Plaintiff get his house ... she will still be alive

and Plaintiff would not be charge for her murder” and that “defendants

destroyed Plaintiff and they are responsible of Plaintiff wife death.” (TR

132-33). Defendants replied. (TR 149-54).

On July 14, 2022, the trial conducted a hearing on the motion to

amend the complaint and the Rule 12.03 Motion. Plaintiff newly claims

on appeal that he did not know the Rule 12.03 Motion was to be argued

on this date and he was denied due process. Plaintiff raised no objection

during the

hearing when he

appeared from prison via Zoom

videoconference. (See 7/14/22 Transcript). On July 18, 2022, Plaintiff

filed a motion claiming not to have received Defendant’s reply in support

of the Rule 12.03 Motion and response to his motion to amend prior to

the hearing. He sought 45 days to file another brief (his third) in response

to the Rule 12.03 Motion and reply as to the motion to amend. (TR 156).

He did not assert lack notice as to the purpose of the hearing in his July

18 motion, instead writing that the Court had set the July 14, 2022

hearing on the Rule 12.03 motion and his motion to amend.

The Trial Court subsequently granted the Rule 12.03 Motion and

denied leave to amend and further briefing (TR 516-520). The court

dismissed Plaintiffs Complaint with prejudice. (Id.).

This appeal

followed.

STATEMENT OF THE FACTS

This professional liability action arises from legal representation

provided to Houbbadi in fall 2018. Houbbadi filed his pro se Complaint

on December 14, 2021. (TR 1-24).

4871-4448-4462

Plaintiffs Legal Representation

On October 1, 2018, Plaintiff sought to hire Kennedy and Rahn of

KLF to represent him in the OP Case in Montgomery General Sessions

Court filed by his wife, Leila Chanane, (“Chanane”). (TR 1 f 3). Chanane

alleged Houbbadi had been physically violent toward her. (Id.). This was

a new matter, having been filed by Chanane on September 26, 2018. (TR

68-73). The -General Sessions Court issued a Temporary Order of

Protection, including barring Plaintiff from the parties’ home, and set an

October 9,

2018

hearing,

(TR

74-76).

Houbbadi also

sought

representation in a divorce. (Id.) A divorce case was already pending in

Davidson County.

(TR 78). While Plaintiff now tries to claim the

existence of a contract with Defendants to pursue a motion for exclusive

possession of his residence, his Complaint did not allege that he

contracted with Defendants to pursue such motion. He only alleged that

he “asked” them to pursue this relief. (TR 2, f 9; 4,

18).

Counsel appeared for Houbbadi at the October 9, 2018 hearing. (TR

2, ^ 10). Per the Complaint, Rahn “informed [Houbbadi] they reset the

hearing on November 13, 2018” as a result of the judge running late and

the court interpreter being unable await the judge’s arrival. (Id.).

Houbbadi further alleged that Rahn, without Houbbadi’s authorization

or informing him of the agreement, agreed with Chanane’s counsel to

extend the terms of the Temporary Order of Protection via a written

Order. (TR 2-3, ^ 10, 12). The extension included the requirement that

Houbbadi vacate and not come around the marital residence at 508

Bellamy Lane prior to the new hearing date. (TR 77). But, it specified

4871-4448-4462

that Houbbadi would be allowed to visit the home in a specified time

period to obtain his clothing and medication. (Id.).

Murder of Houbbadi’s Wife and Houbbadi’s Arrest and

Prosecution

On October 20, 2028, eleven days after the General Sessions

appearance and extension of the Temporary Order of Protection,

Chanane was found dead outside 510 Bellamy Lane, a home next door to

marital residence at 508 Bellamy Lane. (TR 56). Houbbadi was arrested

for Chanane’s murder. (TR 2, ^ 11; 80). He was indicted on charges of

first, degree murder and especially aggravated burglary in April 2019 and

was jailed pending trial. (TR 2, 79).

Initiation of Suit

In his pro se Complaint on December 14, 2021, Plaintiff first

asserted that Defendants breached a contract regarding Plaintiffs legal

representation in the OP Case. (TR 2,

10). Houbbadi alleged Rahn

appeared at the October 9, 2018 OP Case hearing and “informed

[Houbbadi] they reset the hearing on November 13, 2018” as a result of

the judge running late and the court interpreter being unable await the

judge’s arrival. (Id.).

Plaintiff also alleged Rahn simply agreed with

Chanane’s counsel to extend the terms of the Temporary Order of

Protection via a written Order, including extending the Temporary

Order’s requirement that Houbbadi vacate and not come around the

marital residence prior to the new hearing date, without Plaintiffs

authorization or knowledge.

(TR 2 f 10).

Plaintiff pleaded that his

criminal attorney in his murder prosecution later gave him a box of

discovery papers containing the Temporary Order extension on

4871-4448-4462

December 7, 2020 and that he did not know about the agreement in the

OP case “until December 7, 2020.” (TR 2

11, 4 U 18). (Because Plaintiff

pleaded he learned of the document forming of the basis of his suit on

December 7, 2020, his December 14, 2020 Complaint was untimely. (TR

64)). He further alleged that Defendants did not move for exclusive

possession of the parties’ residence as he “asked.” (TR 2

9, 4

18).

The Complaint contained little to establish the existence or breach

of a contract by Defendants. Plaintiff merely referred to signing a debit

card receipt for a payment and made references to a contract, which he

failed to attach or describe, and asserted it was a “forgery.” (TR 3

16).

At best, the Complaint alleged an oral agreement pursuant to which

Defendants agreed to generally represent Plaintiff in the OP Case and a

divorce. The Complaint also did not plead or establish that Defendants

contracted or agreed to take any specific action beyond general

representation in the OP case and divorce, including filing an exclusive

possession motion or that such motion would be filed within a set period.

Plaintiff next stated that he had a fraud claim. His Complaint did

not explain this claim or how he was defrauded.

The claim was

indecipherable. Plaintiff now alleges on appeal that Defendants agreed

to represent him and took his payment in order to facilitate an affair

between counsel and his wife. Plaintiff never pleaded the existence of

such a relationship in the Complaint.

Plaintiff only later stated his

“belief that an affair had occurred in his response to the Rule 12.03

Motion. (TR 132). On appeal, this “belief’ has metamorphosed into the

outright contention than an affair was, in fact, occurring. (Appellant’s

Brief, p. 15).

(This change is but one example of Plaintiffs tenuous

4871-4448-4462

relationship with the truth and actual record content. See also footnote

6, infra.) There is no record content whatsoever to support this everchanging and contrived theory; there is the opposite.3

Third and lastly, Plaintiff asserted he sustained damages as a

result of his vague and amorphous claims. Plaintiffs “damages” were

pleaded as follows:

Complaint [sic] would submit that his credit score before he

get arrested on murder charge was over 820 point. Complaint

believe he would not charge on murder if defendant Kennedy

and Rahn did their jobs in good fith. Complaint would submit

he lost his house, his car, all of his furniture and property he

have in his house. Complaint lost his job. Complaint would

submit he disabled now physically and mentally. Complaint

can’t work no more. Complaint lost enjoyment of life.

Complaint Houbbadi would submit that he see mental healt

staff weekly. Complaint Houbbadi suffer anxiety, depression.

(TR 5-6,

23). These “damages” do not flow from fraud or a contract

breach. Plaintiff simply blames Defendants for the ramifications of a

homicide he committed.

Answer, Motion to Dismiss, and Non-disnositive Motion

Practice

Defendants served their answer on January 14, 2022 and it was

filed by the Clerk on January 18. (TR 12-24). The answer was mailed to

Plaintiff at the Montgomery County Jail via U.S. Mail per Tennessee Rule

of Civil Procedure 5. (TR24). Plaintiff makes much ado of his claim that

3 Plaintiff also admitted in his sentencing hearing that he “did not know

what [Kennedy’s] relationship was with” his wife. The trial court

took judicial notice of the sentencing transcript. (TR 92, p. 13, 1. 17-22).

4871-4448-4462

he did not receive the service copy - he nevertheless received a copy from

the Court Clerk via letter of February 8, 2022, as he admits. (TR Vol. 4,

01)).

On January 19, 2022, Plaintiff filed a Motion for Appointment of

Counsel. (TR 25). On February 2, 2022, he submitted a Notice of Hearing

to the Montgomery Circuit Clerk to set the case for a hearing/trial on May

9, 2022. (TR 27, 40-41). He also had a subpoena issued for at least one

witness, Beverly Sharp of the Board of Professional Responsibility, to

attend this hearing, (TR 29). When Sharp objected in late March 2023

and served her objection to KLF’s address (TR 39-40), Defendants

learned of the hearing notice, the motion for appointment of counsel and

Plaintiffs February 23, 2023 filing of a document entitled “Respond to

Defendant Answer.” (TR 30-34). None of these items had been served on

Defendants, including the “Respond to Defendant Answer.” (TR 39-40).

Although Plaintiff claims in his Brief that he filed the “Respond to

Defendant Answer” to advise the Court that he never received an Answer

from Defendant, this five-page filing was a combined reply to the Answer

and an amendment of the Complaint. (TR 30-34). Because Tennessee

Rule of Civil Procedure 7.01 precludes a reply to an answer absent court

order and Rule 15.01 precludes a pleading amendment without consent

or leave of count after a responsive pleading is served, these post-answer

filings were improper. (TR 40-41). Plaintiffs Notice of Hearing ostensibly

setting the case trial was also improper under Tennessee Rule of Civil

Procedure 40 and the Montgomery Circuit Court Local Rule 22.

Accordingly, Defendants filed a Motion to Strike the “Respond to

Defendant Answer” and to Cancel the Evidentiary Hearing on April 6,

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2022.4 (TR 35-43).

On April 22, 2022, Defendants served and fax filed

the notice setting their motion for hearing on May 6, 2022. (TR Vol. 4, 0304).

Plaintiff filed a response to the Motion to Strike and Cancel the

Hearing and a reply in support of appointment of counsel. (TR 44-46). He

admitted that he filed his hearing notice to set the case for trial and

objected to the trial’s cancellation and striking of his “Respond to

Defendant” Answer. (TR 44-45). The admission prompted Defendants to

file a supplement to their motion on May 2, 2022, to note that they (and

Plaintiff) had demanded a jury trial and to reiterate the matter was not

ripe for trial anyhow. (TR 47-48).

On May 3, 2022, Defendants filed the Motion for Judgment on the

Pleadings and a supporting Memorandum.

(TR 49-116).

Since the

hearing on the aforementioned non-dispositive matters was set for May

6, 2022, the Rule 12.03 dispositive motion was not noticed for hearing

pending resolution of those motions. Plaintiffs grievance in his brief that

the Rule 12.03 Motion was served the night before the May 6, 2022

hearing is completely immaterial — the Rule 12.03 Motion was not ripe

for hearing on May 6. The Court only heard arguments on the nondispositive motions on May 6, 2022.

As reflected in the Court’s Order entered on May 18, 2022, the

Court denied the motion for appointment of counsel. (TR. 119-120).5 The

4 Defendants also objected to the Motion for Appointment of Counsel. (TR

35-36).

5 The Order inadvertently lists the May 6 hearing date as May 13.

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Court found the case was not ready for trial and granted the motion to

cancel. (Id.) The Court granted the motion to strike because the “Respond

to Defendant Answer” did not comply with the Tennessee Rules of Civil

Procedure. (TR 120). The Court allowed the document to remain in the

record but confirmed it would not be recognized as an amended complaint

or a response to a pleading. (TR 120). The Court ordered Defendants to

notice the Rule 12.03 Motion for a hearing with adequate notice of the

date to Plaintiff. (Id.). Neither party utilized a court reporter for this

hearing — there is no record content to support Plaintiffs assertion in his

Brief that the Court told him could simply amend his pleading.

While not memorialized in the record, the Court advised Plaintiff

he could move for leave to amend (not simply amend) during the hearing.6

He did just that, serving a bare bones motion to amend his Complaint on

May 9, 2023. (TR 118). On May 24, 2022, he served a notice setting his

motion to amend for July 14, 2022. (TR April Supplement, 001).

6 Plaintiff contends at page 22 of his brief that Defendants confirmed that

the Court advised him he could amend at the May 2022 hearing in their

Response to his Motion to Supplement Record with Statement of

Evidence. This is another example of Plaintiffs tenuous

relationship with the record and candor to the tribunal. What

Plaintiff contends is a confirmation is actually bullet point restatement

of his own assertion in the Motion to Supplement which is then followed

by a Defendants’ response that the Court told Plaintiff he “could move to

amend.” See Exhibit B, p. 6 to Defendants’ Jan. 25, 2023 Notice of Filing

in the Court of Appeals.

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On June 1, 2022, Plaintiff filed another motion for appointment of

counsel (TR 125), his “Opposition to the Motion for Judgment on the

Pleadings,” (TR 127-28), and his Memorandum in Support of Opposition

to the Motion for Judgment on the Pleadings. (TR 129-33).

On June 10, 2022, Defendants noticed the hearing on their Rule

12.03 Motion and served the notice on Plaintiff by mail to his last known

address, the Bledsoe County Correctional Complex in Pikeville,

Tennessee. (TR April Supp., 002-006). Defendants set the Rule 12.03

Motion for the same hearing date, July 14, 2022, that Plaintiff had

previously selected for his motions. (TR April Supp., 002-006).

Motion for Judgment on the Pleadings and Motion to Amend

Complaint

Defendants sought judgment on the pleadings pursuant to Rule

12.03 on three grounds:

First, Plaintiff failed to adequately plead fraud and breach of

contract in accordance, including with particularity under Tennessee

Rule of Civil Procedure 9.02 as to the fraud claim.

Second, Plaintiffs claims, in actuality, were legal malpractice

claims that were not timely asserted under Tenn. Code Ann. § 28-3-104.

Plaintiff explicitly pleaded that he discovered his “claims” on December

7, 2020 but he did not filed until December 14, 2021. (TR 2 f 11, 4

18).

Plaintiffs criminal prosecution record also reflected that he knew

of the OP Case Temporary Order when it was entered in October 2018

and certainly by late 2019. Houbbadi filed a motion in the Montgomery

Circuit Court to dismiss indictment Counts 2 and 3 on December 26,

2019. (TR 80-81). He argued in his motion:

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The defendant would submit that it is undisputed that he was

served with an Ex Parte Order of Protection filed by Leila

Chanane on September 28, 2018. The Ex Parte Order of

Protection (Case Number 63GS1-20180CV-7756) was

extended by agreement of the parties during a court

appearance on October 9, 2018 to November 13, 2018.

(TR 80- 81, Tf 5). Defendants asked the Court to take judicial notice of

this Motion and other items, as discussed infra, and determine that the

limitations period began to run by December 26, 2019. (TR 54-55, 62-64).

Lastly, Plaintiffs claimed “damages,” i.e. his arrest and indictment

on murder charges and the various resulting ramifications on his life,

were not the result of any action or inaction by Defendants as required

by the elements of any cause he attempted to assert in the Complaint.

Although dismissal under Rule 12.03 was warranted from the face

Complaint, Defendants additionally requested the Court take judicial

notice of certain Montgomery County Court records in the OP Case and

Plaintiffs criminal case, including Houbbadi’s sentencing hearing

transcript, and the docket reflecting Plaintiffs already pending Davidson

County divorce case:

Exhibit 1 (TR 68-73) - Petition for Order of Protection and Order

for Hearing, Chanane u. Houbbadi, Montgomery General Sessions

Court, No. GS 2018-CV-7756, 9/26/2018;

Exhibit 2 (TR 74-76) - Temporary Order of Protection, Chanane v.

Houbbadi, Montgomery General Sessions Court, No. GS 2018-CV7756, 9/26/2018;

Exhibit 3 (TR 77) - Order (amending Temporary Order of

Protection), Chanane v. Houbbadi, Montgomery General Sessions

Court, No. GS 2018-CV-7756, 10/9/2018;

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Exhibit 4 (TR 78) — Docket; Houbbadi v. Chanane, Davidson Circuit

Court, No. 15D516;

Exhibit 5 (TR 79) - True Bill, Montgomery Circuit Court, 4/2019;

Exhibit 6 (TR 80-82) - Motion to Dismiss Count 2 and 3 of

Indictment, State of Tennessee v. Houbbadi, No. CC-19-CR-400,

12/26/2019;

Exhibit 7 (TR 83-88)- Judgments, State of Tennessee v. Houbbadi,

No. CC-19-CR-400, 3/11/2022;

Exhibit 8 (TR 89-96) — Transcript of Sentencing Hearing, State of

Tennessee v. Houbbadi, No. CC-19-CR-400, 3/11/2022.

The prosecution materials reflected that Plaintiff was tried and

convicted on three counts in February 2022. (TR. 83-88).

He was

sentenced on March 11, 2022. Id. During the sentencing, Plaintiff gave

a soliloquy because he did not “get a chance to tell the jury about” his

story. (TR 91, p. 9, 1. 16-17). He stated, “I just want to say, Pm sorry

for what I did. And nobody deserves to be hurt or be killed.” (TR

91, p. 9, 1. 15-17). He then recounted a story claiming that his wife had

broken into his safe, stolen money and then obtained the Order of

Protection pursuant to which he had to leave the marital residence on

September 27, 2018. (TR 91, pp. 11-12). He sought to hire Kennedy “for

my divorce and for the order of protection.” (TR 91, p. 12, 1.4-7).

Regarding the initial meeting, Houbbadi recounted:

I was talking to Mr. Kennedy he mentioned to me he know my

wife. And when — he told me it would be 2,500 for both case. I

told him, okay. I told him, I will give you one-thousand down

payment and pay 500 each month. He told me, Okay. And I

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give him my card. He leave the room. And he came back with

another attorney. And he told me, this is Mr. Gordon [Rahn].

Just repeat to him what you just told me. I repeated to Mr.

Gordon what I just told Mr. Kennedy. And my hearing for the

order of protection it was October the 9th. I came to the court.

Kevin Kennedy was there. My wife and her attorney and Ms.

(indiscernible) and Mr. Gordon. Mr. Gordon came and talk to

me and he told me, Look they push your hearing to the 27 —

to the 13 of November, I told him, Why. He told me, Because

the judge was not there and the interpreter she have another

job, she can’t wait. I left.

(TR 91, p. 12,1. 8-25).

Houbbadi returned to Clarksville on October 19 to pick up a

prescription, a trip he reviewed in the soliloquy:

When I went to the pharmacy they told me it would be like

fifteen minutes, when it gets ready. That’s when I decide to

go to my home looking for my money. I was (indiscernible) I

went to my car first. I said, No somebody will call the

police because I’m not allowed to go there. So I will call

Uber...Then I went to my house looking for the money.”

(TR 92, p. 13, 1. 7-12 (emphasis added)). When Houbbadi arrived at the

home knew he was not supposed to visit (which undermines his

Complaint claim that he did not know of the extended Temporary Order

terms (TR 74-76)), he found a “magazine with Kennedy’s name and

number on it.” (TR 13, p. 13, 1. 14-17). He stated:

That’s why I decided to wait for my wife to talk to her about

that because, I lost it. I see my money go, she keep me from

the house, and my attorney, my attorney to hate me. His — I

don’t know what his relationship with my wife ... I wish I

never gone to my house. I wish I never did go to my house ...

I’m sorry. That’s what I can say. I’m sorry.”

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(Id.). After the admission that he was prohibited from the home, having

“lost it” and apologizing for murdering his wife, the Court sentenced

Houbbadi to life in prison . (Id; TR 83-88).

In Plaintiffs response Memorandum, he tried to resuscitate his

inadequately pleaded fraud claim. He cited Nobes v. Earhart, 769 S.W.2d

868 (Tenn. Ct. App. 1988), which he referred to as a federal case as

establishing the elements of fraud (it does not). He also listed a portion

of Tennessee’s fraud elements but made no effort to articulate how his

Complaint pled such elements or otherwise satisfied the requirement

Tennessee Rule of Civil Procedure 9 that a fraud claim be stated with

particularity. He instead focused on Nobes, characterizing it as being

similar to the present case because involved a situation in an attorney

represented one spouse while in a relationship with the other and did not

disclose the relationship. By this point in the Trial Court proceedings,

Plaintiff had concocted his new, but unpleaded, “belief’ that counsel was

involved with his wife. He did not explain how such a circumstance had

any bearing on his claimed damages.

Plaintiffs response regarding breach of contract was similarly

deficient and cited to South Carolina case law. In response to Defendants’

statute of limitations arguments, Plaintiff self-servingly claimed, in

direct contravention of his Complaint, that he did not actually discover

his claim on December 7, 2020 and thus his December 14, 2021

Complaint was timely.

Lastly, Plaintiff expounded on his sentencing remarks.

affirmed the propriety of Rule 12.03 relief:

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These

Plaintiff would not be charge and convicted with

murder if defendants did their job in good faith. This is

how Plaintiff find out that his wife after she stole Plaintiff she

went put on order of protection. At Plaintiff murder trial the

state witness an employ with YWCA women shelter in

Nashville testified that Plaintiff wife was living at YWCA

from the day she stole the money which is September 26, 2018

to October 11, 2015 . That the day the order agreement state

Plaintiff will return to the house. Defendants know of should

know that Plaintiff will return to the house. Defendants delay

the order of protection hearing in the best interest of Plaintiff

wife who defendant Kennedy know. They did not seek

possession of the house defendant Kennedy who delay hearing

for the best interest of Plaintiff wife who defendant Kennedy

mention that he know Plaintiff wife. Plaintiff strongly belief

that defendant Kennedy was having an affair with Plaintiff

wife because defendant Kennedy request the delay and lie to

Plaintiff and to this court. Plaintiff wife attorney did not

request the delay. What was the purpose of the delay?

Defendant Kennedy relationship to Plaintiff is more than just

he seen her at the store where she work. Did not make sense

that defendant Kennedy defrauded his client the Plaintiff just

because he see her. If Plaintiff get his house and Plaintiff

wife stay where she was or Plaintiff would pay for her

rent and for her moving cost she will still be alive and

Plaintiff would not be charge for her murder. If was

not the defendant Kennedy’s name and phone number

Plaintiff find at the house Plaintiff would left but

because of this Plaintiff stay in the house which ended

up in jail.

Plaintiff would submite evidence to prove the evil

intention and to provide to this honorable court that

defendants destroyed Plaintiff and they are

responsible of Plaintiff wife death. Plaintiff money

requested for his injury will never compensate the lose of

Plaintiff wife and life and property.

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(TR 132-33). Defendants filed a reply on July 12, 2022. (TR 149).

Defendants responded to Plaintiffs Motion for Leave to Amend on

July 11, 2022. The motion was defective because Plaintiff did not tender

a proposed amended pleading in compliance with Tennessee case

authority much less provide a description of the basis for seeking

amendment. (TR 145-46). Further, amendment would be futile given the

arguments set forth in the Rule 12.03 Motion, particularly the fact that

the Complaint was untimely and that the claimed damages were patently

not the result of any action or inaction by Defendants. (TR 145-48). In

other words, regardless of what may or may not have occurred with

Defendants’ representation of Plaintiff, the damages he claimed flowed

directly from the fact that Plaintiff killed his wife.

Hearing on the Rule 12.03 Motion and Motion for Leave to

Amend

Plaintiff, via videoconference, and counsel for defendants appeared

before Judge Kathryn Olita on July 14, 2022 to argue the Plaintiffs

Second Motion for Appointment of counsel and Motion for Leave to

Amend and Defendants’ Motion for Judgment on the Pleadings. (TR Vol.

3, p. 1). An interpreter was present for Plaintiff. (Id.)

The Court heard from both parties. While Plaintiff now selfservingly claims he did not know the Rule 12.03 Motion would be heard

on July 14, 2022, he advised the Court of this on July 14, 2022. Plaintiff

also stated no objection to proceeding with arguments. Accordingly, the

hearing proceeded.

Defendants began with their Rule 12.03 Motion arguments since

the issue of futility of amendment was derived from them. (TR Vol. 3,

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generally, pp. 6-7). Plaintiffs responsive generally failed to substantively

address the Rule 12.03 Motion, including the fact that his damages did

not flow from any of Defendants’ actions. He instead tried to convince the

Court that the pleaded date of discovery, December 7, 2020, was not the

date of discovery in an effort to avoid his limitations problem. (TR

Transcript 27-28).

On July 18, 2022, Plaintiff filed a Motion asking for 45 days to file

to file a “supplemental response” or reply to the Rule 12.03 Motion and

in support of amendment. (TR 156-59). He complained that he had not

received Defendant’s reply in support of the Rule 12.03 Motion and

making all manner of unfounded assertions regarding counsel.

additionally attached a variety of documents he believed supported the

validity of his claim. (TR 160-79). None of these, however, addressed the

issue of whether the Complaint failed to state a claim upon which relief

can be granted or whether and how Plaintiffs wife’s death and his

criminal prosecution (i.e. his “damages”) were the result of anything

other than his own actions. Plaintiff also made no assertion that he had

not known known that the Rule 12.03 Motion would be argued on July

14 or that he was somehow prejudiced by the arguments occurring on this

date. (TR 156-59).

Trial Court’s Memorandum Order and Notice of Appeal

On August 8, 2022, the Trial Court entered a Memorandum Order

taking judicial notice of the items identified by Defendants, granting the

Motion for Judgment on the Pleadings, denying leave to amend, and

denying Plaintiffs request for further briefing. (T.R. 182-88).

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The Court denied the Motion for Leave to Amend because Plaintiff

failed to articulate his alleged “new evidence” or what his proposed

amendment would assert. (TR 184). The Court also determined that any

amendment would be futile in that facts discerned at his murder trial in

February of 2022 do not change the facts underlying his claims for breach

of contract and fraud, nor would any such evidence impact the applicable

statute of limitations. (TR 184).

As to the Rule 12.03 Motion, the Court first found that Plaintiff had,

at best, alleged an agreement for general legal representation but had

failed

demonstrate

breach

of an

agreement

for

general

representation. (TR 185). Because he had not alleged a contract for

specific agreed upon legal actions in the representation, he had failed to

state a claim for an unfiled motion as to exclusive possession of his home.

(Id.).

The Court concluded the breach of contract claim must be

dismissed. (TR 186).

The Court next found that Plaintiff failed to adequately plead

fraud, including that a knowingly false representation had been made to

Plaintiff, that he reasonably relied upon it and suffered damage. (TR

186). The Court further observed that Plaintiff had argued during the

hearing that Defendant’s actions led him to murder his wife and be tried

and convicted of the crime and lose his possessions, job and sustained

non-economic damages. (TR 187). The Court rejected the contention that

reliance on Defendants’ representations caused these damages. (Id.) The

Court concluded Plaintiff failed to state a claim for fraud and that the

claim must be dismissed. (Id).

Lastly, the Court found that Plaintiffs claims sounded in the tort

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of legal malpractice for which the one year limitation of Tenn. Code Ann.

§ 28-3-104(c) applied. The Court found that Plaintiff knew or should have

known of the alleged unauthorized agreement to continue the Temporary

Order of Protection and that a motion for exclusive possession of the

marital residence had not been pursued as of October 2018. (TR 187).

The Court also found that even if Plaintiff did not discover the alleged

unauthorized agreement until December 7, 2020, something inconsistent

with his December 2019 indictment dismissal motion, his December 14,

2020 Complaint was still untimely. (TR 187).

The Court denied all other motions or claims for relief including the

supplemental briefing request. (TR 187). The Trial Court dismissed all

claims. (TR 187). Plaintiff filed his Notice of Appeal on August 25, 2022.

(T.R.193).

ARGUMENT

Law and Argument

Standard of Review for Rule 12 Dismissal

A complaint which fails to state a claim upon which relief can be

granted is subject to dismissal pursuant to Rules 12.02(6) and/or 12.03 of

the Tennessee Rules of Civil Procedure. A 12.02(6) motion asserts that

the allegations in the complaint, if accepted as true, fail to establish a

cause of action for which relief can be granted. Leach v. Taylor, 124

S.W.3d 87, 90 (Tenn. 2004).

Such motions challenge “only the legal

sufficiency of the complaint, not the strength of the plaintiffs proof or

evidence.” Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d

422, 426 (Tenn. 2011). A trial court should grant a Rule 12 motion to

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dismiss when it appears “that the plaintiff can prove no set of facts in

support of the claim that would entitle the plaintiff to relief.” Willis v.

Dept, of Corrections, 113 S.W.3d 706, 710 (Tenn. 2003); see also Waldron

v. Delffs, 988 S.W.2d 182, 184 (Tenn. Ct. App. 1998).

Although a trial court is to construe the factual allegations in a

plaintiffs favor on a motion to dismiss, and therefore accept the

allegations of fact as true, a court is not required to give the same

deference to conclusory legal allegations.

See Riggs v. Burson, 941

S.W.2d 44, 48 (Tenn. 1997). Additionally, the trial court is not required

to accept as true the inferences to be drawn from conclusory allegations.

Id. Further:

The proper way for a defendant to challenge a complaint’s

compliance with T.C.A. § 29-26-121 is to file a Tenn. R. Civ P.

12.02 motion to dismiss. In the motion, the defendant should

state how the plaintiff has failed to comply with the statutory

requirements by referencing specific omissions in the

complaint and/or by submitting affidavits or other proof.

Once the defendant makes a properly supported motion under

this rule, the burden shifts to the plaintiff to show either that

it complied with the statutes or that it had extraordinary

cause for failing to do so. Based on the complaint and any

other relevant evidence submitted by the parties, the trial

court must determine whether the plaintiff has complied with

the statutes. If the trial court determines that the plaintiff has

not complied with the statutes, then the trial court may

consider whether the

plaintiff has

demonstrated

extraordinary cause for its noncompliance.

Myers v. Amisub (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012).

The appellate standard of review applicable to a trial court’s

decision on a motion to dismiss filed pursuant to Rule 12.02(6) or 12.03

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is also settled law. The appellate court shall “review the trial court’s

decision without a presumption of correctness” and “construe the

complaint liberally in favor of the plaintiff, taking all allegations of fact

as true, and deny the motion unless it appears that the plaintiff can prove

no set of facts in support of a claim that will entitle him or her to relief.”

Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003) (citing Stein v.

Davidson Hotel Co., 945 S.W.3d 714, 716 (Tenn. 1997).

Judicial Notice of Court Documents Was Appropriate

Tenn. R. Evid. 201 establishes the procedure for taking judicial

notice and the type of information of which a court (trial or appellate)

may take judicial notice: “[a] judicially noticed fact must be one not

subject to reasonable dispute, in that it is either (1) generally known

within the territorial jurisdiction of the trial court or (2) capable of

accurate and ready determination by resort to sources whose accuracy

cannot reasonably be questioned.”

While a Rule 12 motion is generally converted to a motion for

summary judgment where a court considers matters outside the

pleadings, see Woodruff by & through Cockrell v. Walker, 542 S.W.3d 486,

493 (Tenn. Ct. App. 2017), a court “may consider ‘items subject to judicial

notice, matters of public record, orders, [and] items appearing in the

record of the case ... without converting the motion [to dismiss] into one

for summary judgment.’” Karr v. Saint Thomas Midtown Hosp., No.

M202000029COAR3CV, 2021 WL 457981, at *3 (Tenn. Ct. App. Feb. 9,

2021) (citing Stephens v. Home Depot U.S.A., Inc., 529 S.W.3d 63, 74

(Tenn. Ct. App. 2016) (quoting Haynes v. Bass, No. W2015-01192-COA-

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R3-CV, 2016 WL 3351365, at *4 (Tenn. Ct. App. June 9, 2016)).

In particular, judicial consideration of an existing or past pleading

or court filing does not convert a motion into a motion for summary

judgment. See Stephens, 529 S.W.3d at 73; see also Counts v. Bryan, 182

S.W.3d 288, 293 (Tenn. Ct. App. 2005) (authorizing taking judicial notice

of the date that the prior lawsuit was filed without converting a motion

to dismiss into a motion for summary judgment); Cochran u. City of

Memphis, No. W2012-01346-COA-R3-CV, 2013 WL 1122803, at *2 (Tenn.

Ct. App. Mar. 19, 2013) (concluding that consideration of the existing

complaint, a prior complaint, and various orders did not require

conversion to a motion for summary judgment). The recent legal

malpractice case of Coffee Cnty v. Spining is particularly on point as it

clearly underscores the fact that a Court may take notice of its files or

records, including those of past proceedings underlying a current

proceeding:

In interpreting Rule 201, this court has held that a trial judge

may take judicial notice of those facts capable of “accurate and

ready determination by referencing the court's files.” Counts

v. Bryan, 182 S.W.3d 288, 293 (Tenn. Ct. App. 2005).

Significantly, this court has also recognized that it is

appropriate to consider not only the record of the present

proceeding, but those of earlier proceedings and judgments.

See id. at 291, 293.

Coffee Cnty. v. Spining, No. M202001438COAR3CV, 2022 WL 168145, at

*5 (Tenn. Ct. App. Jan. 19, 2022), appeal denied (May 18, 2022).

Here, all of the items for which Defendants requested judicial

notice are court records in the underlying OP Case, the divorce case, and

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the criminal murder prosecution. These records and their content are

subject to judicial notice under Tennessee Rule of Evidence 201 - their

content is “not subject to reasonable dispute,” in that it is “capable of

accurate and ready determination by resort to sources whose accuracy

cannot reasonably be questioned,” i.e. the Montgomery County General

Sessions and Circuit Courts and Davidson court, as demonstrated by

relevant case law. Further, Plaintiff did not dispute the content of

the noticed records or question their accuracy, instead erroneously

arguing, as he also does in his appellate brief, that the Court cannot take

judicial notice of court records,

The trial court properly took judicial

notice. (TR 182).

Rule 12.03 Motion Properly Granted

Breach of Contract

Inadequately Pleaded

Inapplicable

and

Tennessee authority holds that “[t]he 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) (citations

omitted)).

Plaintiffs Complaint failed to plead the elements of breach of

contract relating to Defendants’ representation. He did not clearly allege

that an enforceable contract existed which required Defendants to

perform any specific action outside of generally providing legal

representation in the OP Case or pending divorce. Likewise, there is no

pleading content alleging that Houbbadi explicitly contracted with any

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Defendant to prosecute a motion for exclusive possession of his residence.

He only avers he “asked” them to pursue such motion. (TR 2

8, 4 ^ 18).

To the extent Plaintiff asserted a contract existed with Defendants, he

alleged agreement for general representation and failed to allege of

breach of same as the Trial Court correctly found.

Next, to the extent Defendants allegedly took unauthorized actions

at the OP Case hearing and/or failed to seek exclusive possession, such

actions sound in the tort of legal malpractice, not a contract breach. See

Meyer v. Pellegrin, No. 3:19-CV-00413, 2019 WL 5727579, at *1 (M.D.

Tenn. Nov. 5, 2019) adopting the Report & Recommendation in Meyer v.

Pellegrin, 2019 WL 5777759 (M.D. Tenn. October 10, 2019); see also

Ferrell v. Long, No. 2009 WL 1362321, at *2 (Tenn. Ct. App. May 14,

2009); Swett v. Binkley, 104 S.W.3d 64, 67 (Tenn. Ct. App. 2002).

In Meyer, the plaintiff pleaded a legal malpractice and a breach of

contract claim against his counsel for a failing to take certain actions he

“requested.”

The defendant argued the claims sounded only in

malpractice, that the plaintiff failed to allege facts supporting contract

breach and that a breach of contract claim could not, therefore , proceed.

Id. at *2, 4. The U.S. District Court, relying on Tennessee authority,

agreed:

Plaintiffs allegations are insufficient to assert a plausible

breach of contract claim under the circumstances of this case.

While Plaintiffs allegations may show the existence of a

contract between with Defendant pursuant to which

Defendant ostensibly agreed to generally represent Plaintiff

in his criminal defense in exchange for payment, Plaintiff has

not shown that activities with respect to obtaining a court

hearing for his halfway house placement was a specifically

4871-4448*4462

contracted duty that it would support a breach of contract

claim if not performed. See Jordan u. Clifford, 2010 WL

2075871 at *4 (Tenn. Ct. App. May 25, 2010) (breach of

contract claim stated when plaintiffs specifically contracted

with attorney to file a lawsuit and attorney failed to file the

lawsuit); Byrd & Assoc., PLC v. Siliski, 2007 WL 3132929 at

*6 n.5 (Tenn. Ct. App. Oct. 26, 2007) (same). Allegations

that Defendant failed to adequately perform any of the

various duties encompassed within the general

criminal defense agreement do not support an

independent breach of contract claim and, as argued

by Defendant, are simply theories of the ... malpractice

claim.

Meyer, 2019 WL 5777759 at *4 (emphasis added). The District Court

dismissed the contract breach claim and only allowed the malpractice

claim to proceed.

The same determination by the Trial Court here, dismissal of a

contract breach claim and determination the claims sounded in

malpractice (albeit untimely claims), was proper given the pleaded

content and Plaintiff only “asking” for an exclusive occupancy motion.

Fraud

Was

Inapplicable

and

Inadequately

Pleaded

Actions for fraud contain four elements:

(1) intentional misrepresentation of a material fact; (2)

knowledge that the representation was false—that the

misrepresentation was made knowingly or recklessly or

without belief or regard for its truth; (3) reasonable reliance

on the misrepresentation by the plaintiff and resulting

damages; (4) “that the misrepresentation relates to an

existing or past fact[.]”

Stacks v. Saunders, 812 S.W.2d 587, 592 (Tenn. Ct. App. 1990) (citations

4871-4448-4462

omitted). If the claim is one for promissory fraud, “then the

misrepresentation must ‘embody a promise of future action without the

present intention to carry out the promise

Id. (quoting Keith v.

Murfreesboro

S.W.2d

Livestock

Mkt.,

Inc.,

780

751,

754

(Tenn.Ct.App. 1989)(citing Brungard v. Caprice Records, Inc., 608 S.W.2d

585, 590 (Tenn.Ct.App. 1980)). ‘“When a promise is made in good faith,

with the expectation of carrying it out, the fact that it subsequently is

broken gives rise to no cause of action, either for deceit, or for equitable

relief. Otherwise any breach of contract would call for such a remedy.’”

Houghland v. Security Alarms & Servs., Inc., 755 S.W.2d 769, 774 (Tenn.

1988)(quoting Prosser and Keeton on The Law of Torts, § 109 (5th

ed.1984)).

To assert any claim, a party must, at minimum, provide a “short

and plain statement of the claim showing that the pleader is entitled to

relief.” Tenn. R. Civ. P. 8.01. Fraud claims require even more under

Tennessee’s Rules of Civil Procedure and the common law. As stated in

Homestead Group, LLC. v. Bank of Tennessee, 307 S.W.3d 746, 751 (Tenn.

Ct. App. 2009), “[f]raud is never presumed, and where it is alleged, facts

sustaining it must be clearly made out.” Homestead Group, LLC. v. Bank

of Tennessee, 307 S.W.3d 746, 751 (Tenn. Ct. App. 2009). Thus, Rule 9

requires that “in all averments of fraud or mistake [in a pleading], the

circumstances constituting fraud or mistake shall be stated with

particularity.” See Tenn. R. Civ. P. 9.02; see also Kincaid v. SouthTrust

Bank, 221 S.W.3d 32 (Tenn. Ct. App. 2006).

While the Complaint purports to assert a “claim for fraud,” fraud

4871-4448-4462

elements are entirely indecipherable. This neither satisfies notice

pleading of Rule 8, the “purpose of which is ... to provide notice of the

issues presented to the opposing party and court” per Webb v. Nashville

Area Habitat for Human., Inc., 346 S.W.3d 422, 426 (Tenn. 2011), nor

Rule 9’s particularity requirement. Even if Plaintiff somehow managed

to asserted a fraud claim, he did not plead any content to explain how

such “fraud” resulted in his arrest for his wife’s murder, the loss of his

credit rating, house, car, furniture and personal property, job, enjoyment

of life or the development of mental and physical issues.

Plaintiffs

patently absurd “damages” are not damages at all; they are the natural

result of the murder he committed. The Trial Court correctly rejected the

fraud claim.

Plaintiff’s Claims Were Untimely

Tennessee Code Annotated § 28-3-104 governs causes of action

against attorneys, among other professionals. In particular, subsection

(c)(1) specifies that “[ajctions and suits against ... attorneys for

malpractice shall be commenced within one (1) year after the cause of

action accrued, whether the action or suit is grounded or based in

contract or tort.” Tenn. Code. Ann. § 28-3-14(c)(l)7, see also Carvell v.

Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). The one (1) year limitations

7 TCA § 28-3-104(c) was formerly numbered as 28-3-104(a). TN LEGIS

618 (2014), 2014 Tennessee Laws Pub. Ch. 618 (S.B. 1506) and Swett v.

Binkley, 104 S.W.3d 64, 67 (Tenn. Ct. App. 2002) (“Tenn. Code Ann. § 283-104(a)(2) governs ‘actions and suits against attorneys or licensed public

accountants or certified public accountants for malpractice, whether the

actions are grounded or based in contract or tort.’”)

4871-4448-4462

period applies regardless of whether the legal malpractice claim sounds

in tort or contract. See Ferrell u. Long, 2009 WL 1362321, at *2 (Tenn.

Ct. App. May 14, 2009) (citing Swett v. Binkley, 104 S.W.3d 64, 67 (Tenn.

Ct. App. 2002)). Further, fraud, which Tennessee defines as a tort, see

Ritter u. Custom Chemicides, Inc., 912 S.W.2d 128, 130 (Tenn. 1995), is

likewise subject the one (1) year limitations period. This was explicitly

articulated by the Court of Appeals in Ferrell u. Long, involving a suit

against an attorney for breach of contract, fraud, theft by deception and

conversions. The Court held that “[sjince Tenn. Code Ann. § 28-3104(a)(2) [now subsection (c)] applies to torts ... it also controls ... claims

for fraud” and applied the one-year limitations period to bar the claim.

Plaintiff ignores the foregoing in his brief, instead relying upon

Alexander v. Third Nat. Bank, 915 S.W.2d 797, 799 (Tenn. 1996), Vance

v. Schulder, 547 S.W.2d 927 (Tenn. 1977), and Am. Fid. Fire Ins. Co. v.

Tucker, 671 S.W.2d 837 (Tenn. Ct. App. 1983) to try to convince this

Court that Tenn. Code Ann. § 28-3-105’s three (3) year limitations period

for injuries to property applies here. This is a professional liability case,

i.e. a case involving damage to a person arising under Tenn. Code Ann. §

28-3-104, not a property damage case. Further, and to the extent these

cases involve fraud in the inducement claims, Plaintiff did not assert a

fraud in the inducement claim much less adequately plead any sort of

fraud.

Next, the accrual of a cause of action under the applicable statute

of limitations, Tenn. Code. Ann. § 28-3-104(c), is governed by the

“discovery rule.” The discovery rule has two elements. First, the plaintiff

4871-4448-4462

“must suffer an actual injury as result of the defendant’s negligence” and,

second, the plaintiff “must have known or in the exercise of reasonable

diligence should have known that [the] injury was caused by the

defendant’s negligence. Id. at 28; see also Story v. Bunstine, 538 S.W.3d

455, 464-65 (Tenn. 2017); Tanaka v. Mears, 980 S.W.2d. 210, 213 (Tenn.

1998). “An actual injury occurs when there is a loss of a legal right,

remedy or interest, or the imposition of liability.” PNC Multifamily Cap.

Inst. Family Fund v. Bluff City Comm. Dev. Corp., 387 S.W.3d 525, 544

(Tenn. Ct. App. 2012). An actual injury also exists when a plaintiff is

“forced to take

some

action

or otherwise

suffer ‘some

actual

inconvenience,’ such as incurring an expense, as a result of the

defendant’s negligent or wrongful act.” PNC, 387 S.W.3d at 544 (citation

omitted). For the second element, a plaintiff s knowledge of an injury may

be actual or constructive. Story, 538 S.W.2d at 469. In other words, a

plaintiff may either become aware or reasonably should have become

aware of facts sufficient to put a reasonable person on notice that an

injury has been sustained as a result of the defendant’s negligent or

wrongful conduct. Id. (citing John Kohl & Co. P.C. v. Dearborn & Ewing,

977 S.W.2d 528, 532 (Tenn. 1998)).

A Rule 12 motion is an appropriate vehicle to invoke the statute of

limitations as grounds for dismissing a complaint. Redwing u. Cath.

Bishop for Diocese of Memphis, 363 S.W.3d 436, 456 n. 11 (Tenn. 2012)

(citing Hawk v. Chattanooga Orthopaedic Grp., P.C., 45 S.W.3d 24, 28

(Tenn. Ct. App. 2000).

Plaintiff s claims, to the extent they are claims at all, are governed

4871-4448-4462

by the one (1) year limitations period of Tenn. Code Ann. § 28-3-104(c).

This is true of the claim that Defendants committed the tort of fraud and

the remaining claims, which sound in malpractice, for the purported

failure to file a motion for exclusive possession of the marital residence

in October 2018 and allegedly unauthorized agreement to continue the

Order of Protection hearing and extend the Temporary Order of

Protection in the interim.

Each claim accrued in October 2018 and

Plaintiff knew or reasonably should have known of the claims at that

time. October 2018 was nearly 3/4 years prior to the filing of this action

in December 2021, making this case patently untimely under the one (1)

year limitations period. Even if Plaintiff did not discover the allegedly

unauthorized written agreement and order to extend the Temporary

Order of Protection until December 7, 2020, as he averred in the

Complaint, or somehow fail to discover that Defendants did not file a

motion for exclusive possession until December 2020, his claims remain

untimely. Again, the Complaint was not filed until December 14, 2021,

over a year after the “discovery” date Plaintiff specifies in his pleading.

Ultimately, Plaintiff did know of the agreement and extension of

the Temporary Order of Protection in October 2018. This was

demonstrated by his discussion of the agreement and order extension in

his 2019 motion to dismiss two criminal indictment counts that he filed

in his criminal prosecution proceeding. (TR 80-82).

Plaintiff wrote on

December 26, 2019 with regard to the OP Case:

The defendant would submit that it is undisputed that he was

served with an Ex Parte Order of Protection filed by Leila

Chanane on September 28, 2018. The ex parte Order of

Protection (Case Number 63GSI-208-CV-7756)

was

4871-4448-4462

extended by agreement of the parties during a court

appearance on October 9, 2018 to November 13, 2018.

Id. (emphasis added).

Plaintiffs contention that he did not know about his own December

2019 indictment dismissal motion in his murder prosecution is

nonsensical. The Court of Appeals historically rejects such arguments.

Much like Houbbadi, the plaintiff the 2010 malpractice case of Lufkin v.

Conner attempted to avoid the one-year limitations period by claiming he

did not discover the malpractice in the motion filed by his attorney at the

time the motion was filed. Lufkin v. Conner, 338 S.W.3d 499, 504 (Tenn.

Ct. App. 2010). The litigant claimed he did not read a motion filed by his

attorney that would have put him on notice of his claim. Id. The Court

of Appeals rejected this. It held that factual information in a motion is

enough to put a reasonable person on notice and it is sufficient that a

plaintiff reasonably should have become aware of the lawyer’s conduct at

issue via the filing. Id. at 504-05. Accordingly, Plaintiff cannot plead

ignorance of his own motion filings to escape the statute of limitations.

Plaintiffs Claimed Damages are Not the Result of

Defendants’ Action or Inaction

Regardless of what “titles” apply to his claims, Houbbadi’s ultimate

contention remains the same - but for Defendants’ action or inaction he

would not have been arrested for and charged with murder in fall 2018

and then sustained the so-called “damages” he claims. He even reiterates

this theory of his case in his brief. (See Appellant’s Brief, p. 25).

Plaintiffs theory is preposterous. There is simply no causal link

between purported deficiencies in legal representation and Defendant

4871-4448-4462

killing his wife. Unsurprisingly, the Complaint is necessarily devoid of

content explaining how any act or failure to act by Kennedy or Rahn in

representing Plaintiff in the OP Case or in pursuing exclusive possession

of a residence could possibly have caused him kill his wife and then be

arrested and charged with a murder.

Even if one ignores the pleading deficiencies and instead analyzes

Houbbadi’s claim from the basic perspective of the damages elements of

breach of contract, fraud or legal malpractice,8 i.e. the requirement of

damages caused by the alleged breach, fraud and/or malpractice, the

conclusion is the same.

Actions for breach of contract require the

existence of 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).

Fraud requires reasonable reliance upon a misrepresentation and

resulting damages. Stacks v. Saunders, 812 S.W.2d 587, 592 (Tenn. Ct.

App. 1990). Malpractice requires that the breach of an attorney’s duty to

the plaintiff was both “the cause in fact of the plaintiffs damages” and

that the “attorney's negligence was the proximate, or legal, cause of the

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

(citations omitted).

Houbbadi pleads nothing to explain how a contract breach, some

unknown misrepresentation for purposes of fraud or breach of an

attorney’s duty could possibly cause Houbbadi’s claimed “damages” i.e.

his diminished credit score, the loss of his job and real and personal

8 Defendants also more broadly argued the Plaintiff cannot satisfy the

various elements of the claims and not simply damages as more fully set

forth herein.

4871-4448-4462

property, his “lost enjoyment of life,” and purported development of

mental and physical disabilities, as required by the elements of each

claim. Houbbadi’s “damages” are wholly the progeny of him killing his

wife, a crime for which he was arrested, charged, and found guilty

following a jury trial and effectively admitted to committing at

sentencing soliloquy. (TR 87-96).

Plaintiff’s Due Process and

Arguments are Unavailing

Other Miscellaneous

Plaintiff devotes a significant portion of his brief complaining about

his purported delayed receipt or non-receipt of service copies of

documents and the fact Defendants filed and served the Motion for

Judgment on the Pleadings just ahead of the motion hearing on other

matters on May 6. These complaints are not a basis for relief.

First, Defendants mailed all documents filed to Plaintiff at his last

known addresses (all of which are jails or prisons) in compliance with the

requirements of Rule 5 as shown on the certificates of service throughout

the record. They were not required to do more, including inquiring as to

whether he received the materials. Second, the new complaint about the

timing of the filing of the Rule 12.03 motion just ahead of a May 6 hearing

on entirely different motions has no bearing here.

Plaintiff also complains that the Trial Court did not consider his

“evidence” that Kennedy knew Ms. Chanane, that he was purported

tricked into signing a contract as if it was a receipt, did not discuss a

payment Plaintiff made to Defendants, and did not address why Rahn

did not sign the Temporary Order in the OP Case if he had had reviewed

and approved (versus Chanane’s counsel signing for Rahn). Plaintiff fails

4871-4448-4462

to grasp that none of these things, even if they might constitute some sort

of deficiency in the lawyer-client relationship, did not result in Plaintiffs

arrest, prosecution and conviction. Those events occurred as a result of

Plaintiff killing his wife.

Plaintiff complains that he did not receive filings ahead of the July

14, 2023, claims he did not know the July 14 hearing would address the

Rule 12.03 Motion, and assumes all manner of ill-will and impropriety by

Defendants. Relative to service of responses and replies, he cites to

Tennessee Rule of Civil Procedure 6.04, for the first time on appeal, as

requiring earlier service. Rule 6.04 does not apply anyhow. It addresses

the time for filing hearing notices and affidavits in opposition to motion.

The rule is not applicable to responses motions or replies in support of

motions — even the rule was applicable and responses and replies were

considered “affidavits,” they were served more than one (1) day before the

July 14 hearing on the Motion for Leave to Amend and the Rule 12.03

Motion.

With regard to the claim Plaintiff did not know the July 14 hearing

would include arguments in the Rule 12.03 motion, Plaintiff failed to

assert or preserve this issue in the Trial Court. He neither advised the

Trial Court of this at the hearing nor raised the issue in his motion after

the hearing. A party may not offer a new issue for the first time on appeal.

Failure to assert an issue constitutes waiver. See Lane v. Becker, 334

S.W.3d 756, 764 (Tenn. Ct. App. 2010) (noting in this appeal of a Rule

12.02(6) dismissal that a party waives an issue when it raises it for the

first time on appeal); see also Campbell County Bd. of Educ. v. BrownleeKesterson, Inc., 677 S.W.2d 457 (Tenn. Ct. App. 1984). Plaintiff has

4871-4448-4462

♦. >

asserted his unpreserved “due process” claim for the first time on appeal

in an eleventh-hour appellate attempt to resuscitate his case against

Defendants. However, the issue has been waived.

Ultimately, Plaintiff has failed to demonstrate on appeal that he is

entitled to relief.

CONCLUSION

The Trial Court properly reviewed, considered and granted the

Defendants’ Rule 12.03 Motion for Judgment on the Pleadings and denied

Plaintiffs Motion for Leave to Amend his Complaint in accordance with

Tennessee law and case authority. Accordingly, Defendants respectfully

request that the Trial Court’s denial of leave to amend and dismissal of

this matter be affirmed.

Respectfully submitted,

BAKER, DONELSON, BEARMAN,

CALDWELL & BERKOWITZ, PC

By: /s/Joshua A. Powers

Joshua A. Powers (BPR #015639)

633 Chestnut Street, Suite 1900

Chattanooga, TN 37450

(423) 756-2010 (phone)

(423) 752-9518 (fax)

iPowers@bakerdonelson.com

4871-4448-4462

i I*

Nora A. Koffman (BPR #038025)

602 Sevier Street, Suite 300

Johnson City, TN 37604

(423) 928-0181 (phone)

(423) 928-5694 (fax)

nkoffman@bakerdonelson.com

Attorneys for Defendants-Appellees,

Kennedy Law Firm, PLLC, Kevin

Kennedy and Gordon Rahn

4871-4448-4462

*' i*

CERTIFICATE OF SERVICE

I hereby certify that on this 7th day of August, 2023, a true and

correct copy of the foregoing Brief of Defendants-Appellees has been sent

to the following:

Hamid Houbbadi, #637286

N.E.C.X.

P.O. Box 5000

Mountain City, Tennessee 37683

Pro Se Plaintiff

Via Regular Mails and Certified Mail,

Return Receipt Requested

BAKER, DONELSON, BEARMAN,

CALDWELL & BERKOWITZ, PC

By: /s/Joshua A. Powers

CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that the foregoing Brief of

Defendants-Appellees complies with the requirements set forth in

Tennessee Rule of Appellate Procedure 30(e).

The number of words

contained in this brief is 10,291, including footnotes.

BAKER, DONELSON, BEARMAN,

CALDWELL & BERKOWITZ, PC

By: /s/Joshua A. Powers

4871-4448-4462

■j

QAppendix "F"

—*-W

IN THE SUPREME COURT FOR TENNESSEE

Hamid Houbbadi

}

Plaintiff/Appellant

vs.

}

} Case No: M2022-01166-COA-R3-CV

Kennedy Law Firm, PLLC, Kevin

}

Kennedy, and Gordon Rahn

}

Defendant/Appellee

Montgomery County NO. CC21-CV-2457

}

APPLICATION FOR PERMISSION TO APPEAL

Appellant Hamid Houbbadi, pro-se, and pursuant to Rule 11 of the Tennessee Rules of

Appellate Procedure, makes application to this Court for appeal by permission from final

decision of the court of appeals for the Middle section of Tennessee. In support of this

application and as required by Rule 11(b) of Tennessee Rules of Appellate procedure, the

following statements are provided:

PROCEDURAL HISTORY

The court of appeals for the Middle District of Tennessee in Nashville, entered a judgment

on January 9, 2024, affirming the judgment of the Trial Court of Montgomery County. Appellant

presented the following question for review in the court of appeals:

1. Whether the trial court erred in granting defendants judgment on the pleading?

2. Whether the trial court committed reversible error by taking judicial notice of disputed facts?

3. Whether the trial court erred in holding that plaintiff failed to state a claim?

4. Whether the trial court in holding that plaintiff claim barred by the applicable statute of limitations?

5. Whether the trial court erred in holding that plaintiff claim sounded in tort of legal malpractice claim?

6. Whether the trial court erred in denying plaintiff motion for leave to amend?

Page 1 of 14

7. Whether the trial court denied plaintiff due process?

QUESTIONS PRESENTED FOR REVIEW

(a) Whether the court of appeal erred in not addressing all of appellant raised issues?

(b) Whether every claim Challenging the conduct of lawyers is a professional malpractice?

STATEMENT OF THE FACTS

The facts stated in the Court of Criminal Appeals opinion, the most of it is incorrectly stated

and misleading. Here, the Court's Opinion is in conflict with statute, prior decisions, and other

principles of law.

REASONS SUPPORTING REVIEW

The court of appeals determined that only two issues are dispositive in this appeal all the

other issues appellant raised on appeal are pretermitted and not dispositive. The court of

appeals agree with the trial court that appellant action is untimely and that appellees are

entitled to a judgment on the pleading. The court of appeals also agree with the trial court that

appellant action sounded in legal malpractice claim without explaining the difference between

fraud, breach of contract, or legal malpractice. The court of appeals incorrectly stated that the

gravamen in this appeal.

(1) fraud

In most general fraud is a trick or artifice other use false information that induces a person

to act in way he or she would not otherwise acted. Rawlings v. John Hancock Mut. Life Ins, 78

S.W.3d 291, 301 (Tenn. Ct. App. 2001). Fraud occurs when a person intentionally misrepresents

a material fact to mislead another to obtain unfair advantage. Brown v. Birman Care Ins, 42

S.W.3d 62, 66 (Tenn.2001).

(2) Breach of Contract

This Court Has explained, in a breach of contract claimant must prove the existence of a

valid enforceable contract deficiency in performance amounting to breach damages caused by

the breach. Fed Ins. Co v. Winters, 354 S.W.3d 287, 291 (Tenn. 2001).

Page 2 of 14

(3) legal malpractice

Legal malpractice claim requires proof of the following element (1) that the accused

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

damages. (4) That the breach cause in fact of the plaintiff damages. (5) That attorney

negligence was proximate, or legal cause of plaintiff damages.

Due process issue

The court of appeals mention, that the trial court resolved this case on a motion for

judgment on the pleading.

On 08/25/2022 the court of appeals sent appellant a "Notice -Initiating Document" the

court of appeals order appellant to (return the form of DOCKETING STATEMENT FOR CIVIL

APPEALS to the Appellate Court clerk office with 15 days). See a copy attached, appellant clearly

stated that the proposed issue to be raised in appeals is "Denial of Due Process

Procedural due process requires "that individuals be given an opportunity to have their legal

claims heard at the meaningful time and in meaning manner" Manning v. City of Lebanon, 124

S.W.3d 562, 566 (Tenn. Ct. App. 2003).

Regarding due process this court instructed that "the very nature of a fraud claim often

requires the actual hearing and viewing of witnesses whose credibility is paramount concern for

the trier of facts." Volunteer Beer, Inc v. Johnson, 1997 WL 675456. Fraudulent intent is an

issue best determined by a careful examination of the underlying facts and an evaluation of

credibility of the parties and witnesses. Schorr v. Schorr 1992 WL 108617. If a witness has made

false or fraudulent misrepresentations or has participated in a scheme of fraud and

subsequently, is called to the witness stand, under oath, to answer questions about such

activities, regardless of his or her answers, his or her demeanor under such circumstances will

provide some indication as to whether the charge are true, or not.

The court of appeals ignored appellant due process issue. See appellant brief page 22

appellant said "he sent a letter to trial court on February 02, 2022, informing the trial court that

Page 3 of 14

after 48 days still no answers from Defendants. Plaintiff filed on the same day a notice of

hearing setting May 09, 2022 hearing (Vol.l.P.29). plaintiff also served four witnesses with a

subpoena to appear at May 09, 2022 hearing, they are: Ali Sadif, Hebba Abulsaad, Beverly

Sharp, Kevin Fowler. Plaintiff received a letter and copy of defendant answer from the trial

court clerk dated February 08, 2022. See a copy of the letter in the supplement appellate record

(Vol.lll)"

Appellant also in his appellant brief page 23 said, "certificate of service of defendant answer

stated a copy of the answer was sent to plaintiff on January 14, 2022. This claim is false".

On the same page appellant said" on February, 23 2022, plaintiff filed a counterclaim reply to

defendants false service claim titled "Response to Defendant Answer" (Vol.P.30-34) plaintiff

request the court to order defendants to submit proof that they served plaintiff with an

answer".

On April 06, 2022 appellees filed a motion to strike appellant "response to defendant

answer" and to cancel or continue May 09, 2022 evidentiary hearing. On April 06, 2022

appellees filed a notice of hearing sitting May 06, 2022 for a hearing three day before the May

09, 2022 hearing were the appellant four subpoenaed witnesses were to appear. The trial court

did not continue the hearing but held a hearing three days early on May 06, 2022 canceling

appellant hearing and strike appellant motion. At May 06, 2022 hearing appellant informed the

trial court that the appellees never serve appellant with an answer as they claim in their

certificate of service that was filed with the trial court clerk. Appellant showed the trial court

the clerk letter, the trial court informed appellant that he could move to amend his complaint

when it strikes appellant motion. Appellant also informed the trial court that he received

appellees three motion the night before the May 06, 2022 hearing, the record show that

appellees put the three motions in the mail on May 03, 2022 they are (1) supplement to motion

to cancel or continue evidentiary hearing (2) motion for judgment in pleading (3) memorandum

in support of a motion for judgment on the pleading. (Vol.P.47-48, 49-51, and 52-116) the trial

court and court of appeal know that this act by appellees is a violation of TRCP 6.04 and 6.05.

but they choose to ignore it. The court of appeals did not even mention that there was a

Page 4 of 14

hearing held on May 6, 2022. Appellant in his DESCRIPTION AND DESIGNATION OF RECORD ON

APPEAL request the audio recording and transcript of testimony. Appellant filed a motion to

supplement the record with 4 items (1) a letter from Wendy Davis, Clerk of the court dated

February 8, 2022 to appellant (2) A subpoena to Kevin Fowler, legal aid, issued February 8, 2022

and (3) notice of hearing setting a May 6, 2022 in the case with certificate of service dated the

22nd of April, 2022, (4) May 06, 2022 hearing transcripts. The trial court granted the supplement

motion in part the first three items and denied the transcript of the May 06, 2022 hearing

because there was no court reporter present. On February 10, 2023 appellant renew his

request for the audio record of the May 06, 2022 hearing. Appellees filed a motion objecting to

this request because they don't want to convey what occurred at the May 06, 2022 hearing the

audio recording of May 06, 2022 would show that the court informed appellant that he could

move to amend. Appellant also filed a statement of evidence but the trial court denied it too.

Appellant filed His motion for leave to amend on May 13,2022, the court approved appellees

proposal order on May 18, 2022 granting appellees motion to strike and to cancel or continue

May 09, 2022 evidentiary hearing, but did not address appellant motion for leave to amend.

Appellees again three day before July 14, 2022 hearing. On July 11, 2022 they filed another

three motions (1) response to motion for appointment of counsel (2) response to motion for

leave to amend (3) reply in support of motion for judgment on the pleading. (Vol.ll.P. 142-144,

145-148, and 149-154) the certificate of those motions show that appellees put the motions in

the mail on July 11, 2022 appellees know that it's impossible for appellant to receive the

motions before the July 14, 2022 hearing, the trial court showed its bias by this leeway not ones

but twice to appellees on May 6, 2022, and on July 14, 2022 hearings. On July 21, 20222

appellants filed a request of time to file supplement response motion for judgment on the

pleading and amendment because he did not receive appellant motion until the July 14, 2022

hearing is over (Vol.ll.P.156-160). the trial court also did not address appellant May 18, 2022

discovery motion, nor the request of time to supplemental response to appellees July 11, 2022

motions. Appellant clearly was denied his due process right.

The court of appeals did not address this important issue regarding Denial of due process.

Page 5 of 14

Leave to Amend motion.

Tennessee law has a history of favoring amendment as noted by Supreme Court and

reflected in this state rules of civil procedure, the court states that the rule of Civil procedure

“were designed to simplify and ease the burden of procedure under sometimes harsh and

technical rules of common law pleading" Branch v. Warren, 527 S.W.2d 89, 91 (Tenn.1975).

regarding amendment in particular, the court has adopted an expansive view that favors party

seeking to amend: leave to amend shall be freely given. The court of appeal ignored appellant

issue regarding Leave to amend motion. Appellant was attempting to amend his complaint with

Mr. Kevin Fowler testimony at appellant criminal trial. Which would prove the allegation of

fraud and breach of contract. Mr. Fowler was the opposing party attorney on the order of

protection at October 09, 2018 hearing. Appellant respectfully request this honorable court to

take judicial notice of Mr. Keven Fowler testimony transcript.

Judicial Notice.

See State v. Lawson, 291 S.W.3d 864, headnotes number 7: [the rule that the court may take judicial

notice whether requested or not, and at any stage of the proceeding, applies to both trial court and

appellate court].

This court may (and is requested to) take judicial notice of court filing containing information

pertinent to this appeal and arising from the case at Montgomery county Circuit court Case No: CC19CR-400.

The contents of these items are subject to judicial notice under rule 201 of Tennessee rules of

Evidence as their content is "not subject to reasonable dispute," in that it is "capable of accurate and

ready determination by resort to source whose accuracy cannot reasonably be questioned," the court of

appeal and Montgomery county Circuit court. In this application, the court is requested to consider and

take judicial notice of the following case at Montgomery county Circuit court Case No: CC19-Cr-400.

Appellees did file a judicial notice for eight items which the trial court considered, appellant pray the

same that this court consider Mr. Fowler testimony transcript.

(a) Whether the court of appeal erred in not addressing all of appellant raised issues?

Page 6 of 14

The court of appeals said in its analysis that "we must always look to the substance of the

pleading rather than to its form" "the choice of the correct statute of limitations is made by

considering the gravamen of the complaint".

In this case the court of appeals stated "appellant did not claim that appellees failed to

represent him or did not fulfill a certain aspect of their general representation". This claim is

entirely incorrect, the appellant clearly show that appellees did not represent appellant but

were representing the opposing party, appellee Kevin Kennedy toke appellant case just to take

care of the opposing party, appellant clearly show how appellees defrauded him at October 1,

2018 and at October 9, 2018. See appellant brief page 13 paragraph 2said "in plaintiff case

defendant defrauded plaintiff in several ways. First allegation of fraud occurred on October 01,

2018 when plaintiff and his friend Ali Sadif meet with defendant Kevin Kennedy at his law firm,

Defendant Kennedy mentioned to plaintiff ad his friend Ali Sadif that he knew plaintiffs wife

Leila Chanane. Plaintiff and defendant Kennedy agree that the fee for representation on the

order of protection and divorce would be $2,500. plaintiff paid defendant Kennedy $1000 and

agree to pay $500 a month until paid off". Appellant received a copy of the forgery contract

with appellees answer to appellant complaint with the board of professional responsibility see

(Vol.l.P.173) that when he finds out that he did not signed a receipt but an hourly rate contract

of $250 per hour instead of total fee of $2500. And the contract was in the name of appellees

Gordon Rahn which he never discusses the fee with appellant. Appellant clearly show that

defendant defrauded appellant in the presence of Mr. Ali Sadif October 09, 2018. Appellee

Kennedy trick appellant in signing the contract as a receipt, never read the contract or informed

appellant that the contract under the name of Gordon Rahn, appellee Kennedy never informed

appellant that he signed an hourly rate contract instead of a flat fee. Appellee Kennedy did not

include the $1000 appellant paid toward the fee of $2500.

The gravamen is that Kevin Kennedy took appellant case only to take care of the opposing

party who he knows and carry an affair with. What appellee's Gordon Rahn did is a complete to

what appellee Kennedy started. The continue of the order of protection it would be not the

Page 7 of 14

issue if there was a conflict of scheduling at the court that day October 09, 2018 as they claim,

but the issue is the false statement they made regarding the continue. They claim two story

about the reason of continuing the October 09, 2018. The first one they claim that Mr. Kevin

Fowler Request interpreter for his client see (Vol.II.P.167.P.5-7) the other claim when they

answer to this action, this time they blame it on the judge running late see (Vol.l.P.14.P.10). the

third reason come from Mr. Fowler testimony See (Testimony transcript on Judicial notice) Mr.

Fowler that said appellant attorney Mr. Gordon who request the continue he also did not know

why appellee Rahn requested the continue. There was no need of continue all the parties were

present the interpreter was present, there was no good cause for continue. Appellee Kennedy

was working for his best interest and the opposing party interest because appellant wife was

living in Nashville at the time of October 09, 2018 hearing, he requests that she move back to

the house on October 11, 2018 and intentionally refuse not to file the motion for exclusive

possession of the appellant house which he is the sole owner. This what the evidence shows.

And appellant nor reason to question appellees faithfulness at October 09, 2018 hearing

because they withheld the truth from him and made a false statement which he relayed on and

left the court room.

In the court of appeals opinion in this case see (page # 1) said: "according to his complaint,

Hamid Houbbadi (Appellant) hired the Kennedy Law firm". This statement is incorrect, see

(TR.P.1.P.3) appellant said: "on October 1, 2018 complaint Hamid Houbbadi, and his friend Ali

Sadif went to Kennedy Law Firm to hire Mr. Kevin Kennedy" see also appellant brief (page # 13.

P.2) appellant clearly said that he hired appellee Kevin Kennedy and agree about the fee with

Kevin Kennedy. And that Kevin Kennedy admitted he know appellant's wife which was the

opposing party on the order of protection and divorce. The gravamen in this case is that Kevin

Kennedy Know appellant wife and toke appellant case just to take care of her. By analyzing that

appellant hired the law firm is misleading and incorrect. The Kennedy Law firm did not know

appellant wife, appellee's Gordon Rahn did not Know appellant wife, but Kevin Kennedy who

know her and he admitted it at October 1, 2018 meeting in the presence of appellant friend Ali

Sadif and in his answer to the board of professional responsibility (vol.ll.P.166.P.l)

Page 8 of 14

In the court of appeals opinion (page 2) said "appellant hired Defendants" again this is

incorrect, appellant hired Kevin Kennedy only.

The court of appeals also said "Mr. Rahn attended the October 9, 2018 court date" this also

incorrect, see appellant complaint (TR. P.1.P.10) said "on October 9, 2018 was the hearing for

the order of protection both defendants. Mr. Kennedy and Mr. Rahn were at the court

Room".

The court of appeal said "appellant avers that scheduling issue occurred with the court

interpreter and that the hearing was reset to November 13, 2018" this also incorrect see

appellant complaint (TR.P.2.P.10) appellant said "defendant Rahn came to complaint Houbbadi

and informed him they reset the hearing on November 13, 2018". There was no scheduling

issue both parties were present the interpreter also was present. What happened that Kevin

Kennedy want the appellant wife to take possession of the house, she was living in Nashville, he

wants her in Clarksville, he was working for his and her best interest.

The court of appeal in its opinion said "appellant also avers that Mr. Rahn agreed to reset

the hearing and continue the ex-parte order of protection without discussing the continue with

appellant" this also incorrect and misleading, appellant said that Mr. Rahn informed him they

reset the hearing but he withheld that the continue was by agreement of the parties and also

the amendment on the October 9, 2018 order see (TR.P.2.P.12) appellant said " Complaint

Houbbadi did not know anything about the agreement. He falsely been told they reset the

hearing because the judge was not at the court". See the (TR.P.175) the order did not mention

any thing that the continue due to the Judge running late.

The court of appeals again said in page two on its opinion that "the complaint seems to

allege that defendants defrauded appellant when appellant hired them" again appellant hired

Kevin Kennedy not both of appellees.

On page 3 of the court of appeals opinion said: "on May 3, 2022 appellees filed a motion for

judgment on the pleading and supporting memorandum". But for unknown reason the court of

appeals did not mention the appellees others motion Supplement to Motion to cancel or

continue Evidentiary Hearing, which also filed on May 3, 2022. The hearing on those motion

Page 9 of 14

was on May 6, 2022. Seethe certificate of service of the above mention motions were put in

the mail on May 3, 2022, and the hearing was held on May 6, 2022. Court of appeal did not

address if the appellees

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