Law versus justice
Malpractice suit against T. Michael O'Mara
shows weakness in local bar
c. 1997 The Putnam Pit
COOKEVILLE, Tenn. -- A loophole may have spared City Attorney T. Michael O'Mara the public spectacle of a malpractice lawsuit filed against him by a former client, but the problems Doyle Shirt Manufacturing Corp. faced trying to sue O'Mara are as important as the $600,000 Doyle claims O'Mara's neglect cost the White County firm.

Doyle's problem is one experienced by many Putnam County residents who need legal help: lawyers pick and choose which cases to take, leaving some without representation.

Doyle and its president, Robert Roggen, say they 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.

Thus, O'Mara, who gives advice to the city for $125 an hour on such issues as selling or leasing Cookeville General Hospital and the legality of reimbursing Councilman Don Wagnon for legal fees he incurred fighting successfully a felony official misconduct charge, squeezed through a loophole just as it closed around the neck of his former client.

O'Mara's Nashville lawyer argues 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."

The Pit waited about three weeks for O'Mara's response to an invitation to be interviewed about the charges in the complaint. He has not responded.

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."

A spokesman for the Cookeville Bar said the organization had plans to establish a lawyer referral service. He did not know when it would be established. He said some lawyers lacked the specialization to bring certain types of cases, and this might be resolved by the referral service.

Whenever that happens, it will be too late for Doyle Manufacturing Corporation, and possibly its 120 employees.