A Double Whammy – A Plaintiff Loses his Underlying Case and Legal Malpractice Case Based on Failure to Properly Issue Summons
Imagine you hire an attorney to file a lawsuit for you for injuries you sustained in a car wreck. Then imagine that that attorney filed a complaint but failed to obtain service of process. That attorney then tells you that you may want to see another lawyer or contact her malpractice insurance carrier directly.
You fire that attorney and hire a new attorney. The new attorney does obtain service on the defendant in your car wreck case. However, the case is dismissed because the complaint and summons were not served within the time allowable pursuant to Tennessee law, and the statute of limitations has expired. The case is appealed.
While the car wreck case in on appeal, the new attorney files a complaint for legal malpractice. However, the new attorney holds off on serving the summons, waiting to see if the Court of Appeals would render a decision on the car wreck case. If the car wreck case could be salvaged, the legal malpractice case would be rendered moot. However, the Court of Appeals goes on to affirm the decision of the trial court in the car wreck case. The new attorney then issues summons in the legal malpractice action, and service is made approximately nine and a half months after the legal malpractice complaint was filed.
The former attorney files a motion to dismiss the legal malpractice case, maintaining that an intentional nine and a half month delay in service of the summons after the filing of a complaint rendered the filing of the complaint ineffective. The Court of Appeals agreed with the former attorney, finding that Tennessee Rule of Civil Procedure 4.01(3), which states that an intentional delay of a prompt service of summons renders the filing of a complaint ineffective, was applicable. Because the statute of limitations had now passed, the legal malpractice complaint is dismissed.
In Jones v. Cox, 316 S.W.3d 616 (Tenn. Ct. App. 2008), that is exactly what happened. The client’s personal injury lawsuit and legal malpractice lawsuit were both dismissed because of failure to timely issue the summons. The client’s attorneys failed him twice over something so seemingly simple as the issuance of summons. If there is a lesson to be learned, it is to be proactive and ask your attorney for proof that the defendant has been served.
If you would like more information on understanding your rights following legal malpractice, follow this link to our Articles Library and click on A Legal Malpractice Case in Tennessee Must be Properly Served Even If the Underlying Case is Still Being Litigated or 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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