White County firm will challenge state
law
Doyle Shirt Manufacturing Co. files appeal in case accusing
T. Michael O'Mara of negligence and malpractice
By GEOFF DAVIDIAN
Putnam Pit Editor
COOKEVILLE, Tenn. -- Doyle Shirt Manufacturing Co. has filed notice
that it will appeal a ruling that barred Robert Roggen, the firm's president,
from suing his lawyer, City Attorney T. Michael O'Mara.
Doyle alleged in a civil complaint that O'Mara was negligent in failing
to safeguard its rights in a bankruptcy case in which the firm had
a $600,000 interest.
Roggen said he called nearly two dozen law firms in Cookeville and elsewhere
in Tennessee but could find none willing to take on another lawyer in a
legal malpractice suit. In desperation, Roggen said, he filed a lawsuit
on his own behalf in October 1995 to keep the statute of limitations from
barring his right to prove his facts in court.
O'Mara's Nashville lawyer argued that under Tennessee Rules of Civil Procedure,
Rule 11.01, a suit brought by a corporation must be signed by a lawyer,
and because Roggen signed the complaint himself, the document is "fatally
deficient because it was not signed by an attorney pursuant to the provisions
of Rule 11." The statement is a quote from a Memorandum of Law in Support
of Defendant T. Michael O'Mara's Motion for Summary Judgment, filed in
Putnam County Chancery Court.
Therefore, O'Mara's malpractice lawyer says, "the complaint should be stricken
and declared void."
Here are the facts in a nutshell, as determined by an independent Putnam
Pit inquiry and court documents, without the benefit of O'Mara's personal
perspective.
Doyle Shirt Manufacturing filed a civil lawsuit in White County claiming
Kurt and Laurie Messenger embezzled or misdirected $600,000 in company
funds. But before the case was adjudicated the defendants filed for bankruptcy,
effectively placing the White County civil suit on hold pending a resolution
of the federal bankruptcy case.
Roggen told The Pit he hired O'Mara to file an adversary action
in the bankruptcy, noting that funds misdirected through fraud are immune
from bankruptcy proceedings.
Roggen told The Pit that O'Mara neglected to file the adversary
action and the statute of limitations ran out on Doyle Manufacturing's
chance to have the money it alleges it lost set aside.
According to O'Mara's legal malpractice lawyer, O'Mara for some reason
recommended against filing such an adversary action and communicated that
advice to the corporation, "who agreed with his decision." However, The
Putnam Pit has found no evidence of that communication, and O'Mara
chose to not discuss the case with this reporter. Roggen said no communication
of that nature was made.
However, O'Mara's malpractice defense memorandum states, "Doyle Shirt now
alleges that Mr. O'Mara had been instructed to file the adversary proceeding."
"After receiving inquiries from Doyle Shirt Manufacturing Corporation about
whether or not Mr. O'Mara had in fact filed an adversary proceeding in
Bankruptcy, O'Mara sent a faxed letter to them dated Oct. 23, 1995, at
which time he informed them that he had not filed such adversary proceeding,"
defendant O'Mara's malpractice lawyer says in his memorandum
The very next day, O'Mara received a letter from Joan Ranney of the corporation
"acknowledging receipt of [O'Mara's] letter dated October 23, 1995."
Defendant O'Mara's malpractice lawyer quotes O'Mara's client asking him
to "[p]lease explain why, as the attorney for Doyle Shirt Manufacturing
Corporation, representing our interests in the litigation of Kurt and Laurie
Messenger, you did not file a dischargeability complaint? As we are both
aware, your failure to do so has forever barred the corporation from the
possibility of recovering the losses incurred. . . ."
O'Mara would not be interviewed, but one question to be answered is what
his strategy was in deciding, as his malpractice lawyer states in his memorandum,
to not file an adversary proceeding.
O'Mara's lawyer says that the date of the letter complaining of O'Mara's
alleged negligence and malpractice shows that the statute of limitations
has run out for Doyle to file another malpractice complaint, although the
firm has since hired attorney Cookeville attorney S. Joseph Harris to represent
it.
According to O'Mara's lawyer's memorandum,
"The statute of limitations for bringing an action in malpractice against
an attorney is one year from the date that the client knew or should have
known of the alleged malpractice. It is indisputable that Doyle Shirt Manufacturing
Corporation knew as of October 24, 1995 that the defendant had not filed
an adversary proceeding in bankruptcy. It is further clear that they knew
that they had been potentially damaged because of the alleged negligence
on the part of [O'Mara]. Therefore. the statute of limitations for bringing
this lawsuit ran on October 24, 1996."
