In this legal malpractice action, Christopher A. Eadie (Ea-die) appeals from a trial court order granting summary judgment in favor of Steven M. Krause and the law firm of Krause and Moorhead, P.A. (Krause). We affirm.
FACTS
The instant case arises from a workers’ compensation claim in which Krause was retained to represent Eadie in an action seeking workers’ compensation benefits for injuries he sustained while completing a job for Complete Company, Inc. (Complete).
Complete is a small commercial industrial maintenance business incorporated in Tennessee and, wholly owned by Ronald Rigsby (Rigsby). In May 1997, Eadie, a resident of Anderson, South Carolina, learned that Rigsby was looking for help doing concrete repair for Home Depot. Having performed concrete repairs in the past, Eadie, while in South Carolina, called Rigsby in Tennessee to inquire about the work. During their conversation, Rigsby allegedly offered to pay Eadie to perform concrete repairs at a Home Depot store in North
After completing the job in North Carolina, Complete retained Eadie to perform four similar repairs at Home Depot locations in North Carolina and Florida. For each job, Eadie personally purchased or rented the necessary supplies and equipment to complete the work. Eadie’s rate of pay was calculated by Rigsby based upon the square footage of the concrete repair.
On June 10, 1997, Eadie was seriously injured in a one-vehicle accident while picking up concrete in Atlanta, Georgia, for a concrete repair job at a Home Depot store in Charlotte, North Carolina. Eadie was rendered paraplegic as a result of the accident.
In August 1997, Eadie retained Krause to represent him in the workers’ compensation and personal injury claims arising from the accident. On September 19, 1997, Krause filed a Form 50 with the South Carolina Workers’ Compensation Commission indicating Complete as Eadie’s employer. In response, Complete filed a Form 51 asserting the South Carolina Workers’ Compensation Commission lacked jurisdiction on the grounds that the employer and “alleged employee” were not subject to South Carolina law and that the employer-employee relationship did not exist. Depositions of Eadie and Rigsby were conducted on February 16, 1998, and a hearing-on the matter was scheduled for April 14, 1998. The hearing was eventually postponed and no further proceedings were commenced before the South Carolina Workers’ Compensation Commission.
In June 1998, Eadie filed notices of claim with the Georgia State Board of Workers’ Compensation and the North Carolina Industrial Commission. Krause’s office assisted Eadie in filing these notices to toll the statute. At this time, Krause associated attorney Philip R. Newman (Newman) of Puryear & Newman, in Franklin, Tennessee, to represent Eadie in a Tennessee action. Newman filed a complaint in the circuit court for Williamson County, Tennessee, seeking workers’ compensation benefits against Complete and Home Depot.
In the Tennessee case, Home Depot, Complete, and Complete’s insurer moved for summary judgment on the basis that Eadie was not an employee. Additionally, Complete alleged that Eadie had affirmatively sought workers’ compensation benefits in three other states and therefore had made a binding election of remedies, under Tennessee law, barring him from recovery in Tennessee. The Tennessee trial court found in favor of Complete as to the election of remedies argument and granted Home Depot’s summary judgment motion on the ground that Eadie was not an employee of Home Depot.
Thereafter, Eadie appealed to the Tennessee Special Workers’ Compensation Appeals Panel (Tennessee Appeals Panel). In a memorandum opinion dated December 19, 2003, the three-judge panel affirmed the trial court’s finding that Eadie was not an employee of Home Depot and unanimously reversed the trial court’s ruling as to Complete on the election of remedies issue. The Tennessee Appeals Panel held that Eadie’s filing of notices of claim in other states did not amount to an election of remedies. In arriving at its determination, the panel noted that Eadie did not receive any compensation benefits in the other three states, nor had any of his claims been denied.
Complete and its insurer appealed the decision of the Tennessee Appeals Panel to the Supreme Court of Tennessee. In its final opinion, dated August 27, 2004, the Tennessee Supreme Court held that the filing of a claim in South Carolina, the request for a hearing here, and the taking of depositions in the matter constituted affirmative acts to obtain benefits in another state sufficient to constitute a binding election of remedies that barred Eadie’s claim in Tennessee.
On November 16, 2005, Eadie filed the instant action against Krause and his law firm alleging that the defendants failed to timely and properly commence workers’ compensa
At oral argument before the trial court, the parties focused primarily on the question of whether Eadie was an employee or an independent contractor of Complete at the time of his injury. As such, the trial court requested the parties submit additional memoranda on independent contractor law in the four states at issue. Additionally, the trial court requested that any further materials pertinent to the motion be submitted by May 28, 2007. Eadie responded by filing several affidavits, exhibits, and supplemental memoranda on or shortly after the deadline. Krause filed a responsive affidavit as well as Eadie’s responses to requests to admit.
The trial court granted summary judgment in favor of Krause on July 9, 2007. Eadie filed a motion to alter or amend the judgment, which was denied on August 23, 2007. This appeal followed.
STANDARD OF REVIEW
When reviewing the grant of a summary judgment motion, the appellate court applies the same standard that governs the trial court under Rule 56(c), SCRCP.
Boyd v. Bellsouth Telephone Telegraph Co., Inc.,
LAW/.ANALYSIS
Eadie maintains the trial court erred in granting summary judgment on the ground disputed issues of material fact exist concerning whether Krause’s alleged professional errors proximately caused injuries to Eadie. Specifically, Eadie argues the existence of disputed issues of material fact concerning: (1) whether the acceptance of the telephone offer of employment took place in Tennessee and was sufficient to establish jurisdiction in Tennessee; 2 (2) whether Eadie was an employee of Complete under Tennessee law or an independent contractor; and (3) whether the application of Tennessee’s election of remedies doctrine was reasonably foreseeable. 3
In order to prevail in a legal malpractice claim, a plaintiff must prove: (1) the existence of an attorney-client relationship; (2) a breach of duty by the attorney; (3) damage
Given the burden of the plaintiff in a legal malpractice action to prove the probability of success of the underlying claim, the requisite analysis of the underlying claim that accompanies this burden requires, in essence, a trial within a trial.
4
Shearon v. Seaman,
Turning to the underlying Tennessee workers’ compensation claim, we note that pursuant to Section 50-6-225(a)(3) of the Tennessee Code, civil actions for workers’ compensation benefits are commenced before a judge in the circuit or chancery court. Tenn.Code Ann. § 50-6-225(a)(3) (West 2008) (“Neither party in a civil action filed pursuant to this section shall have the right to demand a jury.”). When the facts are undisputed, the question is one of law.
Travelers Ins. Co. v. Dozier,
We are mindful of and respect the interpretation of Tennessee law by the Tennessee Supreme Court since we must, in the context of this malpractice action, utilize Tennessee law in our analysis. However, in this South Carolina malpractice litigation, we nonetheless must scrutinize the action of the attorney involved to determine whether there are any factual disputes for purposes of summary judgment. Even assuming Eadie’s status as an employee for purposes of our analysis, we nonetheless may resolve this case as a matter of law on the issue of whether Krause should have foreseen his actions in attempting to preserve his client’s rights in South Carolina would preclude the Tennessee workers’ compensation claim under the election of remedies doctrine of Tennessee which existed at that time.
As indicated, essential elements of a legal malpractice claim are duty and proximate cause. Proximate cause requires proof of causation in fact and legal cause.
Sims v. Hall,
Under the doctrine of election of remedies, Tennessee case law at the time of Eadie’s claim held that an employee injured on the job in another state who files a workers’ compensation claim in that jurisdiction and obtains either an award, or a court-approved settlement of the claim, or who actively pursues a claim
in a vemie that has jurisdiction,
is barred from filing a subsequent claim in Tennessee.
Gray v. Holloway Construction Co.,
In the instant case, the Tennessee Supreme Court only addressed whether the actions taken by Krause in South Carolina constituted an election of remedies. While we might view those same acts differently for purposes of South Carolina law, we need not distinguish the effect of these acts for even if these acts are deemed sufficient affirmative acts under Tennessee law, the Tennessee Supreme Court did not address whether the alleged affirmative acts occurred in a forum with jurisdiction over the matter.
See Gray,
As we previously indicated, we must respect the interpretation of Tennessee law by the Tennessee Supreme Court. Notwithstanding, our review cannot be premised on speculation as to why the Tennessee Supreme Court did not address its past precedent on the “venue with jurisdiction” element of its earlier cases. However, we may consider the question before us from two perspectives: 1) whether counsel should
Here, as the trial court in South Carolina correctly found, the South Carolina Workers’ Compensation Commission did not have jurisdiction over Eadie’s workers’ compensation claim because Complete lacked the requisite number of employees in South Carolina as required by Section 42-1-360(2) of the South Carolina Code. This ruling was not appealed; thus, it is the law of the case.
See Charleston Lumber Co., Inc. v. Miller Hous. Corp.,
Thus, utilizing Tennessee’s own interpretation of its election of remedies precedent at the time of counsel’s conduct, this court cannot find the alleged “affirmative” acts in South Carolina constituted a breach of duty or proximately caused damage since Tennessee law at the time would require that Krause’s affirmative acts occur in a venue that had jurisdiction, which does not include South Carolina.
See Gray,
Therefore, because we may affirm for any ground appearing in the record, we conclude, as a matter of law, that the application of Tennessee’s election of remedies doctrine under this alternative was not foreseeable by Krause since, even if the acts in South Carolina were sufficient affirmative acts under Tennessee law, the acts occurred in a venue in which there was no workers’ compensation jurisdiction.
6
See
Rule 220(c), SCACR;
Upchurch v. New York Times Co.,
Given the dispositive nature of this determination, the court need not address Eadie’s remaining arguments including, but not limited to, the acceptance of the contract for hire and whether Eadie was an employee of Complete.
7
See Futch v. McAllister Towing of Georgetown, Inc.,
CONCLUSION
Accordingly, we find the trial court did not err in granting summary judgment on the ground the application of the election of remedies doctrine as a bar to Eadie’s claim in Tennessee was not reasonably foreseeable.
AFFIRMED.
Notes
. The parties disagree as to who made the offer; however, we may resolve this case without a determination of this issue.
. The trial court indicated its concern as to a possible sham affidavit by Eadie; however, since the court never excluded the affidavit on this basis, the affidavit is part of the record for purposes of this action.
. Eadie also asserts on appeal the trial court erred in denying his motion to recuse based upon the trial judge's previous professional relationship with Krause and the fact the trial judge allowed less than 40 business days for the parties to complete discovery. The fact the trial judge had a previous professional relationship with Krause is insufficient evidence, standing alone, of bias or prejudice.
See Patel v. Patel,
. On appeal, Eadie challenges the trial court's finding only as to the Tennessee workers' compensation claim:
. Generally, issues of foreseeability and proximate cause are questions for a jury. However, to survive a motion for summaiy judgment, the plaintiff must offer some evidence that a genuine issue of material fact exists as to each element of the claim unless that element is either uncontested or agreed to by stipulation; otherwise, the plaintiff cannot meet his burden of proof and the claim may be determined as a matter of law by the trial judge.
Baughman v. American Tel. and Tel. Co.,
. As previously indicated, even Complete asserted in its Form 51 that South Carolina lacked jurisdiction.
. For similar reasons, we need not address whether the parties consented to litigate the merits of the Tennessee claim on the motion for summary judgment. While we note the court in this type of proceeding would ultimately address the viability of the underlying claim, we need not address this ground since our opinion focuses only on the alleged act of negligence as to failing to foresee the application of the election of remedies bar, not the underlying merits of the Tennessee claim.