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Johnston v. Cowden5/25/2000
This legal malpractice action was filed against the estate of a deceased attorney who allegedly failed to file a civil action and a claim for compensation under the Criminal Injuries Compensation Act on the plaintiff's behalf. Implicitly applying the Dead Person's Statute, Tenn. Code Ann. ยง 24-1-203, the trial court granted the estate's motion for summary judgment on a finding that the deceased attorney was never retained. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and Remanded
Cottrell, J., delivered the opinion of the court, in which Cantrell, P.J., M.S. and Cain, J. joined.
OPINION
Dorothy ("Dodi") J. Johnston filed this legal malpractice case against the estate of Fred E. Cowden, Jr., a deceased attorney who allegedly failed to file a civil action and a claim for compensation under the Criminal Injuries Compensation Act on her behalf. The trial court granted the estate's motion for summary judgment on a finding that Ms. Johnston never retained Mr. Cowden.
On February 3, 1995, Ms. Johnston was injured by an individual who was subsequently arrested and convicted of aggravated assault. It is undisputed that sometime prior to January 8, 1996, Ms. Johnston consulted with Mr. Cowden about suing the man who assaulted her and filing a claim under the criminal injuries compensation statutes. The outcome of this appeal hinges on whether there is sufficient evidence in the record to support a finding that Ms. Johnston's contact with Mr. Cowden gave rise to an attorney/client relationship and/or that Ms. Johnston suffered any damage from the failure to file a victim compensation claim.
The complaint alleges that Ms. Johnston hired Mr. Cowden at an unspecified time to file the actions arising from the assault. However, the record shows that on January 8, 1996, Mr. Cowden sent Ms. Johnston the following letter:
You had indicated that you wanted me to prepare your claim for compensation under the Criminal Injury Compensation Program. You sent me the forms, however, I need certain information from you in order to complete the forms. In addition, you had discussed the possibility of filing a civil suit against the individual convicted of the assault, and we need to discuss that if you decide to pursue the matter. I would appreciate hearing from you at your earliest convenience.
The record contains no evidence that Ms. Johnston complied with this request.
The complaint alleges that when Ms. Johnston contacted Mr. Cowden on February 5, 1996, she was shocked to learn that he had never pursued her claims and the statute of limitations had passed.
In November of 1996, Mr. Cowden was fatally injured. Ms. Johnston commenced the underlying action against his estate in February of 1997, seeking $250,000 in damages.
In October 1997, Mr. Cowden's estate moved for summary judgment on two bases: (1) that there was no competent evidence that Mr. Cowden had agreed to represent Ms. Johnston in the civil action, and (2) Ms. Johnston had suffered no harm due to Mr. Cowden's failure to file the claim for victim's compensation because the opportunity to file the claim still existed. Thus, the motion alleged separate reasons for dismissal of each of the two claims of malpractice brought by Ms. Johnston. In support of the motion the estate filed the above quoted letter and a second letter addressed to Ms. Johnston's present counsel from Christine Carlton, another attorney who had previously represented Ms. Johnston in some matters. This letter stated in pertinent part that Ms. Carlton recalled speaking to Mr. Cowden in March 1996 about Ms. Johnston's ass
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