The Meaning Of “With Prejudice”

The Tennessee Court of Appeals affirmed the dismissal of a legal malpractice case

On February 6, 2020, Appellant Rimon Abdou retained attorneys Wesley Ben Clark and Frank Ross Brazil (together “Appellees”) to represent him in a lawsuit against his exwife and other individuals for harassment and discrimination. Mr. Abdou claims that, during the course of their representation, Appellees did not intervene to stop the opposing parties and their attorneys from a pattern of harassment against him. Specifically, Mr. Abdou asserts that the opposing counsel and parties: (1) attempted to obtain Mr. Abdou’s medical records without authority; (2) subjected Mr. Abdou to a nine-hour, single-day deposition; (3) pressed for unfounded discovery; and (4) refused to answer Mr. Abdou’s discovery. Mr. Abdou claims that Appellees failed to properly address opposing counsel and parties’ tactics, thus undermining Mr. Abdou’s lawsuit.

As the case progressed, Mr. Abdou claims that Appellees began “pressing” him to voluntarily dismiss certain claims. Mr. Abdou avers that Appellees cautioned him that “legally you must” dismiss “or we [] risk sanctions.” Mr. Abdou repeatedly rejected the request to dismiss the claims; however, according to Mr. Abdou, Appellees “kept harassing and pressure[ing]” Mr. Abdou “for a month by calling him during his work hours without scheduling a time for phone calls” and “repeatedly stating the wrong legal conclusions.” Mr. Abdou, believing the evidence supported his legal claims, continued to refuse Appellees’ request for voluntary dismissal of certain claims. After much dispute, on April 21, 2021, the trial court entered an “Agreed Order of Partial Dismissal,” dismissing several of Mr. Abdou’s claims with prejudice. Mr. Abdou asserts that, when Appellees sent him a letter attaching the order, they failed to explain what the term “with prejudice” meant.

Following entry of the agreed order, the parties began scheduling the matter for hearing. During this process, Mr. Abdou asserts that Appellees “engaged in a number of prejudicial actions, including informing him via text message after midnight that his presence was required for a hearing just hours later.” Mr. Abdou, who is a “Christian in the Eastern tradition,” explained that he could not attend the hearing because the dates conflicted with certain religious holidays. Mr. Abdou asserts that opposing counsel accused him of intentionally trying to delay the trial, and Appellees “did not contest” this accusation.

Mr. Abdou asserts that he fired Appellees in May 2021; however, the record shows that Appellees continued to represent Mr. Abdou until August 16, 2022, when the trial court entered an order allowing them to withdraw, see infra.

Mr. Abdou retained other counsel

Mr. VanAusdall subsequently withdrew from the case in June 2022. Mr. Abdou asserts that Mr. Brazil, who was still Mr. Abdou’s attorney of record at the time, “attempted to break the attorney client privilege” by contacting Mr. VanAusdall about his reasons for withdrawing. Appellant officially fired Appellees on July 14, 2022. On July 21, 2022, Appellees filed a motion to withdraw, which was granted by order of August 16, 2022. During the motion to withdraw hearing, Mr. Brazil allowed opposing counsel to use his phone. Mr. Abdou asserts that this action constituted a betrayal “that was like Mr. Brazil was representing the opposing lawyer instead of his client,” and was “a stab[] in [my] back from [my] former lawyers.” As a result of the withdrawal of his attorneys and facing opposing counsel’s motion to require him to proceed pro se through the trial, Mr. Abdou voluntarily dismissed his lawsuit in September 2022. In October 2022, Mr. Abdou was charged with discretionary costs in the amounts of $3,286.60 and $727.70.

Statute of limitations

By his own averments, Mr. Abdou received actual notice of the agreed order on April 21, 2021, when Appellees sent it to him. Having received the document, Mr. Abdou was charged with reading it. If there were terms in the order that Mr. Abdou did not understand, it was incumbent on him to contact his attorneys to explain the terms or to otherwise research the question himself.

Thus

In view of the foregoing and taking the averments in Mr. Abdou’s amended complaint as true, we agree that the statute of limitations on the claims arising from Appellees’ alleged failure to inform Mr. Abdou concerning the meaning of the term “with prejudice” accrued, at latest, on April 21, 2021, when he received the agreed order of partial dismissal (the same day it was entered). As such, Mr. Abdou’s February 20, 2023 complaint is barred by the one-year statute of limitations.

(Mike Frisch)