Monday, October 29, 2007
A law firm was hired to represent a client in "a myriad of legal challenges for [the client]" after her children had been taken into protective custody. The Tennessee Department of Children's Services ("DCS") found "[t]rash...throughout the [client's] house, dog feces and urine...on the floor, medical syringes and drugs...throughout the house in reach of the children, a variety of animal medications including questionable controlled substances...and an extreme malodor of feces and urine throughout the home." DCS had removed approximately 216 dogs and 14 cats from the client's home. The firm later terminated the representation and sued for legal fees. The client counterclaimed alleging neligence, legal malpractice, breach of contract, fraudulent misrepresentation and promissory fraud. The trial court granted summary judgment on the counterclaims and the client appealed.
The Tennessee Supreme Court held that summary judgment on the legal malpractice claim was proper. Although the client had produced two experts, one was "decidedly unfamiliar with the facts" and his opinion was properly excluded. The other expert was the client's ex-husband, who "is no longer a practicing attorney" and thus his opinion was properly excluded on that basis. However, summary judgment on the breach of contract claim was improperly entered based on the alleged failure to file a federal court action on the client's behalf. The claim of billing fraud may be asserted in defense of the law firm's action for unpaid fees. (Mike Frisch)