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McDonald v. Ishee5/31/2000
This is a legal malpractice case. Plaintiff sued defendant- attorneys alleging (1) that defendants gave him negligent advice concerning acceptance of a proposed settlement which resulted in plaintiff receiving nothing when the jury returned a verdict for the defendants, and (2) that defendants negligently recommended to plaintiff that he withdraw his motion for a new trial. The trial court granted summary judgment to defendants based on the bar of the one-year statute of limitations. On appeal, this Court affirms the order granting summary judgment as to the negligent advice concerning the acceptance of the settlement and reverses the order as to the advice concerning withdrawal of the motion for a new trial.
Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Chancery Court is Affirmed in Part, Reversed in Part, and Remanded
Crawford, P.J., W.S., delivered the opinion of the court, in which Farmer, J., and Lillard, J., joined.
OPINION
Plaintiff/Appellant, Charles Seavey McDonald (McDonald), executor of the estate of Alice M. McDonald (the estate), appeals the trial court's order granting summary judgment to defendants, Dixie White Ishee and Harkavy, Shainberg, Kosten and Kaplan, P.A.
Alice McDonald died during a hospital stay. Her estate retained the defendant/appellee, Dixie White Ishee, to represent it in a medical malpractice action against the hospital and doctors. On November 17, 1995, the estate settled with the hospital for $100,000.00. The doctors involved in the suit also made an offer of judgment for $325,000.00, which the estate rejected in December 1995, and the case proceeded to trial against the doctors. At the close of trial, the jury returned a verdict in favor of the doctors on February 15, 1996. A motion for new trial was filed by the estate on March 15, 1996. However, based on the advice of Ishee, the estate withdrew its motion for new trial on April 15, 1996.
On March 20, 1997, defendant, the law firm of Harkavy, Shainberg, Kosten & Kaplin, P.A. (hereinafter Law Firm) together with the law firm of Neely, Green, Fargarson, Brooke & Summers sued the individual heirs to the estate in chancery court for breach of contract in failing to pay their attorneys' fees. On April 15, 1997, the estate filed a complaint in circuit court against Ishee and the Law Firm for legal malpractice, alleging that the lawyers gave erroneous advice in recommending that the estate reject the doctor's offer of settlement and that it withdraw its March 15, 1996, motion for new trial. These cases were consolidated for trial by order entered July 27, 1998.
On August 20, 1997, the defendants in the malpractice case filed their motion for summary judgment based on the statute of limitations. The defendants' motion for summary judgment was heard, and on October 7, 1998, an order was entered granting the motion for summary judgment. Plaintiff appeals and presents the following issues for our review:
1. Whether the trial court's granting of the defendant's motion for summary judgment was proper.
2. Whether the trial court's entry of final judgment under rule 54.02 was proper.
3. Whether the trial court erred in holding that the statute of limitations had expired prior to the filing of the complaint.
First, we will consider plaintiff's second issue. The plaintiff asserts that making the order a final order pursuant to Tenn.R.Civ.P. 54.02 was an error, because the legal competence of the defendants' representation of plaintiff "will be litigated as an affirmative defense to the claim for attorney's fees." The record reflects that the case before us on appeal was a separate
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