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McDonald v. Ishee5/31/2000
rts that he was given negligent advice as to the dismissal of his motion for new trial in April 1997. The instant suit was filed within one year of this allegedly negligent advice. Although the motion for a new trial is not a part of the record in this case, we may assume that it points out alleged errors committed by the trial court and the conduct of the trial resulting in verdicts for the defendants. We could also assume that a motion for a new trial seeks relief from the trial court as thirteenth juror. Plaintiff's complaint is primarily premised on the allegedly negligent advice concerning the acceptance of a settlement offer, and while the allegation concerning the motion for a new trial appears to be somewhat contradictory of that premise, it does attempt to assert an alternative cause of action. This is permissible under Tenn.R.Civ.P. 8.05 (2). The Advisory Commission Comment states: "Rule 8.05 (2) allows greater latitude in the statement of all the claims or defenses a party has, and expressly permits inconsistent pleadings." At this point, there simply is nothing in this record to warrant summary judgment or dismissal of a cause of action premised upon allegedly negligent advice to withdraw the motion for a new trial.
Accordingly, the order of the trial court granting summary judgment as to the action based upon the allegedly negligent advice concerning the offer of settlement is affirmed, and the order as it pertains to the withdrawal of the motion for new trial is reversed. The case is remanded to the trial court for such further proceedings as may be necessary. Costs of the appeal are assessed one-half to plaintiff and one-half to defendants.
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