A legal malpractice action must be both filed and served, even if the underlying lawsuit is still pending, or the legal malpractice action may be dismissed, as demonstrated in the case of Jones v. Cox, 316 S.W.3d 616 (Tenn. Ct. App. 2008).
In Jones, Ms. Jones was injured in an automobile accident. Ms. Jones hired an attorney, Ms. Cox, to represent her in a lawsuit regarding the accident. However, while Ms. Cox did file a complaint, she failed to properly serve the defendant. The summons was retuned unserved, and Ms. Cox never reissued it. Ms. Cox subsequently informed Ms. Jones that she believed the time limit had passed for service upon the defendant and that Ms. Jones may want to see another lawyer or contact her malpractice insurance carrier directly. Ms. Jones then fired Ms. Cox and hired another attorney, Mr. Ryan.
Mr. Ryan did manage to obtain service on the defendant in the personal injury case. However, the defendant in the personal injury case immediately filed a motion to dismiss because the complaint and summons were not served within the applicable statute of limitations period. The trial court granted the motion to dismiss, and Mr. Ryan appealed.
In the meantime, Mr. Ryan filed a legal malpractice complaint against Ms. Cox. Although a summons was issued, Mr. Ryan did not attempt service. Mr. Ryan withheld service pending the outcome of the appeal in the underlying personal injury case. If the underlying case could be salvaged, the legal malpractice suit would be rendered moot.
The Court of Appeals affirmed the trial court’s decision dismissing the personal injury case. Thereafter, Mr. Ryan promptly served Ms. Cox with the legal malpractice complaint. Service was accomplished approximately nine and a half months after the legal malpractice complaint was originally filed.
Ms. Cox filed a motion to dismiss the legal malpractice complaint, stating that service of the complaint was ineffective and the statute of limitations had now passed on Ms. Jones’ legal malpractice action. The trial court denied the motion to dismiss but granted an interlocutory appeal. On appeal, Ms. Cox argued that an intentional nine and a half month delay in service after the filing of a complaint rendered the filing of the complaint ineffective pursuant to Tennessee Rule of Civil Procedure 4.01(3).
Tennessee Rule of Civil Procedure 4.01(3) states as follows:
If a plaintiff or counsel for plaintiff (including third-party plaintiffs) intentionally causes a delay of prompt issuance of a summons or prompt service of a summons, filing of the complaint (or third-party complaint) is ineffective.
The Court of Appeals found that service of the legal malpractice complaint was ineffective and granted Ms. Cox’s motion to dismiss the legal malpractice action. The court stated as follows:
Although we concede that Mr. Ryan’s strategy was logical given the fact that, had the dismissal of the Jones’ case against [the defendant in the personal injury case] been reversed, a malpractice suit against Ms. Cox would not be necessary, the rules simply do not allow attorneys to participate in this sort of waiting game. Under Tenn. R. Civ. P. 4.01(3) it is the intent to withhold service of process that is the test. From the facts in the record, and in light of Mr. Ryan’s own sworn statements, it is clear that he intentionally withheld service of process in this case, albeit for a very reasonable purpose. . . . [A]an intentional delay under Tenn. R. Civ. P. 4.01(3) mandates a conclusion that the original complaint was not effectively filed. Regardless of the savings exceptions set out in Tenn. R. Civ. P. 3. n3 (upon which the Joneses rely), the intent to withhold service of process makes the filing of the complaint on November 20, 2006 ineffective. Although a second summons was issued within a year of the initial summons, this did not toll the applicable statute of limitations.
Jones, 316 S.W.3d at 621–22.
If there is a lesson to be learned from Jones, it is to continue to move forward with a legal malpractice, even if the underlying claim is still pending. An attorney must make sure the case is properly served and cannot use the argument that the legal malpractice case could be rendered moot depending on the outcome of the underlying case on appeal. The legal malpractice suit must, at a minimum, be filed and served on the defendant attorney.
Do not suffer another injury from your legal malpractice attorney. The attorneys at Bailey & Greer can help you determine if your legal malpractice attorney has committed malpractice himself. Call us today for a free case consultation.
Since graduating magna cum laude in 2005 from the University of Memphis School of Law, Thomas has helped make a difference in the lives of victims of serious personal injury, wrongful death, and professional negligence. Thomas has extensive trial experience in both state and federal court. Among other victories in the courtroom, Thomas obtained several impressive jury verdicts and settlements
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