Assigned on Briefs February 2, 2018
from the Circuit Court for Hamilton County No. 15C877 Don R.
Ash, Senior Judge.
legal malpractice case, defendant-attorneys filed a motion
for summary judgment alleging that they complied with the
applicable standard of care. In response to the summary
judgment motion, Appellant failed to offer any expert proof
that defendant-attorneys breached the applicable standard of
care. Accordingly, the trial court granted summary judgment
on this basis. Discerning no error, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Elaster, Chattanooga, Tennessee, Pro Se.
William S. Walton, Nashville, Tennessee, for the appellees,
Gary Massey, Jr., Massey & Associates, PC, and Danny
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which Frank G. Clement, Jr., P.J., M.S., and John
W. McClarty, J., joined.
STEVEN STAFFORD, JUDGE.
April Elaster suffered a work-place injury in 2005. With the
help of counsel, Ms. Elaster filed a workers'
compensation claim against her employer. Following the
withdrawal of her initial attorney, Ms. Elaster retained the
services of Defendants/Appellees Gary Massey Jr., d/b/a
Massey and Associates, and Danny Ellis (together,
"Appellees"). Appellees represented Ms. Elaster
from 2009 until 2014. Since 2014, Ms. Elaster represented
herself in the workers' compensation proceeding.
20, 2015, Ms. Elaster filed a pro se complaint for legal
malpractice against Appellees. Therein, Ms. Elaster alleged
that Appellees failed to adequately represent her in the
workers' compensation case. Specifically, Ms. Elaster
alleged that Appellees "settled" the workers'
compensation case without informing her. Ms. Elaster further
alleged that she had no knowledge that a "monetary
settlement had been taken on her claim" until she
performed her own investigation in July 2014. Appellees filed
an answer denying the material allegations in the complaint.
The parties thereafter entered into a period of discovery.
encountering alleged problems obtaining discovery from Ms.
Elaster, Appellees filed a motion to compel on November 3,
2015, which motion was eventually granted by the trial court.
Additional disputes occurred regarding Ms. Elaster's
deposition; the deposition eventually took place on February
22, 2016. Ms. Elaster also submitted written discovery to
Appellees on March 9, 2016. Appellees responded on March 25,
2016. Ms. Elaster, however, was unsatisfied with certain
responses submitted by Appellees, particularly where
Appellees refused to supply certain information on grounds
that the information was privileged or irrelevant and
unlikely to lead to the discovery of admissible evidence. As
such, Ms. Elaster filed several pleadings with the trial
court concerning what she alleged were discovery violations
meantime, on April 20, 2016, Appellees filed a motion for
summary judgment, arguing, inter alia, that they had
complied with all relevant standards of care in their
representation of Ms. Elaster and that Ms. Elaster's
claim in her complaint that Appellees had obtained a
settlement of Ms. Elaster's workers' compensation
claim was patently false. Appellees' motion was
accompanied by a statement of undisputed material facts.
Therein, Appellees alleged that Ms. Elaster had been twice
examined by physicians, neither of whom supported her claim
for impairments in the underlying workers' compensation
proceeding. Further, Appellees alleged that despite
negotiating a settlement for Ms. Elaster's "disputed
and doubtful" claim, she later repudiated the agreement
and no settlement had ever been entered into by Appellees on
behalf of Ms. Elaster with regard to her workers'
compensation claim. Finally, Appellees alleged they had never
received any "monetary settlement" in connection
with their representation of Ms. Elaster and that the
representation was terminated in July 2014. Importantly, the
statement of undisputed material facts also alleged that both
Mr. Massey and Mr. Ellis were familiar with the recognized
standard of care with regard to the legal representation at
issue and that neither attorney had breached the applicable
standard of care. In support of their assertions regarding
the standard of care, Appellees relied on the affidavits of
both Mr. Massey and Mr. Ellis.
17, 2016, Ms. Elaster filed a motion to compel discovery,
arguing that Appellees had refused to provide requested
documents and that Appellees' objections regarding
privilege and relevance were not well-founded. Appellees
responded in opposition. On May 26, 2016, Ms. Elaster also
filed a motion seeking to delay the hearing on the summary
judgment motion, noting that she had issued a subpoena to the
Tennessee Department of Labor and Workforce Development
("Department of Labor") and that she needed time to
review the documents. Again, Appellees opposed Ms.
Elaster's request, arguing that the documents at issue
were easily obtainable simply by signing a release and that
evidence showed that the Department of Labor had already
released the relevant documents to Ms. Elaster but that Ms.
Elaster had not retrieved the released documents. In a later
filing, Ms. Elaster admitted that she was able to obtain her
file from the Department of Labor in June of 2016.
31, 2016, Ms. Elaster filed an affidavit in opposition to the
motion for summary judgment. Therein, Ms. Elaster asserted
that despite Appellees' assertion otherwise, she had
never claimed that Appellees received a money settlement and
retained the funds without remitting those funds to Ms.
Elaster. Ms. Elaster also included certain alleged portions
of Mr. Massey's response to a Tennessee Board of
Professional Responsibility complaint filed by Ms. Elaster.
parties appeared as scheduled for the summary judgment
hearing on June 6, 2016. At the hearing, the trial court
granted Ms. Elaster's request for a continuance. Ms.
Elaster thereafter requested that the trial court recuse
itself. The trial court later entered an order granting ...