Hill v. Moncier

122 S.W.3d 787, 2003 Tenn. App. LEXIS 973
CourtCourt of Appeals of Tennessee
DecidedJuly 11, 2003
StatusPublished
Cited by6 cases

This text of 122 S.W.3d 787 (Hill v. Moncier) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hill v. Moncier, 122 S.W.3d 787, 2003 Tenn. App. LEXIS 973 (Tenn. Ct. App. 2003).

Opinions

OPINION

CHARLES D. SUSANO, JR., J.,

delivered the opinion of the court, in which

HOUSTON M. GODDARD, P.J., and D. MICHAEL SWINEY, J., joined.

David T. Hill sued Herbert S. Moncier and David S. Wigler (“the Attorneys”), both of whom are attorneys engaged in the practice of law in Knoxville, alleging legal malpractice. According to Hill, the Attorneys represented him in federal court in connection with “criminal charges and criminal and civil forfeitures.” He was convicted of conspiracy, conducting an illegal gambling operation, and money laundering, fined $25,000, and received concurrent sentences of 57 months. Forfeiture of property was ordered by the district court. In the instant case, Hill seeks to recover damages allegedly caused by the Attorneys’ malpractice. The Attorneys moved for dismissal on two grounds, ie., (1) the failure of Hill to obtain post-convic[789]*789tion relief, and (2) the bar of the statute of limitations. The trial court dismissed the complaint without reciting its basis for doing so. Hill appeals. We affirm in part and reverse in part.

I.

At the conclusion of a jury trial in July, 1997, Hill was convicted in federal district court of conspiracy and conducting an illegal gambling operation, in violation of 18 U.S.C.A. § 1955 (West, WESTLAW through P.L. 108-85, approved June 23, 2003), and money laundering, in violation of 18 U.S.C.A. § 1956(a)(1)(A) & (B) (West, WESTLAW through P.L. 108-35, approved June 23, 2003). The Sixth Circuit Court of Appeals affirmed Hill’s convictions, and his petition for Writ of Cer-tiorari to the United States Supreme Court was denied.

In June, 2000, Hill filed a motion in federal district court seeking to vacate or set aside that court’s judgment on the jury’s verdict, contending, among other things, that he was “denied effective assistance of counsel at trial.” The district court denied Hill’s motion on February 20, 2003. The record before us reflects that Hill appealed the denial to the Sixth Circuit; it does not reflect the disposition of that appeal.

In separate civil proceedings, the United States sued Hill for forfeiture of certain specified real property owned by Hill that was allegedly used in his illegal gambling business, under the authority of 18 U.S.C.A. § 1955(d). On cross-motions for summary judgment, the federal district court granted the government’s motion and ordered that Hill’s properties be forfeited to the government. The Sixth Circuit affirmed the district court’s order and denied Hill’s petition to rehear. On April 9, 2002, Hill filed a motion in the district court, requesting, inter alia, relief under Fed.R.Civ.P. 60(b) with respect to the civil forfeiture cases. This motion was denied by the district court one month later. On appeal to the Sixth Circuit, that court held, in part, as follows:

Upon review, we conclude that the district court did not abuse its discretion when it denied Hill’s post-judgment motion for relief from judgment under Fed. R.Civ.P. 60(b)(4). Hill’s post-judgment motion is essentially an attempt to belatedly assert an affirmative defense to the government’s forfeiture complaints. As an affirmative defense, however, the statute of limitations has been waived due to Hill’s failure to assert it during the prior proceedings.

United States v. One Tract of Real Prop., 60 Fed.Appx. 599, 600 (6th Cir.2003) (citations omitted).

II.

On August 30, 2002, Hill filed his legal malpractice complaint against the Attorneys. Of the four counts in the complaint, the first three pertain to the Attorneys’ representation of Hill in the criminal case. Hill contends (1) that the Attorneys failed to inform the district court that the government did not prove the requisite number of persons to convict Hill under 18 U.S.C.A. § 1955, an element of which is that the illegal gambling operation must involve five or more persons; (2) that without a conviction under § 1955, the money laundering conviction would have been dismissed for failure to prove that the money was derived from an unlawful act; and (3) that the Attorneys failed to inform the court that the indictment for money laundering did not include an essential element of the crime — an effect on interstate commerce — that would have necessitated the dismissal of the charge.

The fourth count of Hill’s complaint addresses the civil forfeiture actions filed by [790]*790the government against him. In this count, Hill alleges that the Attorneys failed to properly research the issue of the statute of limitations as a bar to the government’s civil forfeiture claims; failed to file a response to these actions; and permitted summary judgment to be entered in favor of the government. Liberally construing this allegation in Hill’s favor — as we are required to do in this summary judgment analysis — we treat this charge of malpractice as including the claim that the Attorneys failed to raise the defense of the statute of limitations to the government’s civil suits.

On October 14, 2002, the Attorneys filed a motion to dismiss Hill's complaint on two grounds. First, the Attorneys asserted that, pursuant to Gibson v. Trant, 58 S.W.3d 103, 116 (Tenn.2001), “a criminal defendant must obtain post-conviction relief in order to maintain a legal malpractice claim against his defense lawyer.” Id. They argue that because Hill has not obtained post-conviction relief, his legal malpractice claim must be dismissed. Second, the Attorneys contend that Hill’s action for malpractice was filed outside of the one-year statute of limitations found at Tenn. Code Ann. § 28-3-104(a)(2) (2000).

The trial court granted the Attorneys’ motion to dismiss on December 16, 2002. The propriety of the trial court’s dismissal is now before us on this appeal.

III.

The trial court decided this case based upon the pleadings and other materials in the record. The trial court concluded that the record before it justified a grant of summary judgment on the Attorneys’ motion to dismiss. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The burden of proof is on the moving party to show that it has met these requirements. Car-vell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

In deciding this case, we “must view the evidence in the light most favorable to the nonmoving party and must also draw all reasonable inferences in the nonmoving party’s favor.” Carvell, 900 S.W.2d at 26 (citing Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993)). Summary judgment should be granted “when both the facts and the conclusions to be drawn from the facts permit a reasonable person to reach only one conclusion.” Carvell, 900 S.W.2d at 26 (citation omitted).

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Hill v. Moncier
122 S.W.3d 787 (Court of Appeals of Tennessee, 2003)

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122 S.W.3d 787, 2003 Tenn. App. LEXIS 973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-moncier-tennctapp-2003.