Durham now sued by former litigator

After apparent detente comes another round of accusations and the recounting of a series of midnight phone calls

Email | Print By Kyle Swenson

Another chapter has unfolded in the legal back and forth between Bart Durham and his former top litigator, Robert Whitaker. After the storm between the two seemed to have passed, Whitaker has fired back at his former employer with a lawsuit that features some bizarre after-dark phone calls and allegations of breach of contract.

After Whitaker's exit from the firm, Durham slapped his former employee with a lawsuit accusing Whitaker of making claims on fees he won while working at the firm, what the filing called “attempted extortion and/or embezzlement.” At the time, Whitaker told NashvillePost.com the suit amounted to a “misunderstanding.” The attorney predicted Durham would dismiss with prejudice, a prediction that appeared to be coming true early this month.

Now, the tables have turned and Whitaker has taken aim at his former employer. The new complaint, filed on Friday in Davidson County Circuit Court, begins by alleging Durham pulled the trigger too quickly with his initial suit. Durham filed his complaint against the former employee without ever contacting Whitaker, who says he had no plans to make the fee claims, the filing says.

Whitaker next alleges a series of events. The attorney claims he received calls in the middle of the night in late August on the evening before an important pre-trial hearing in a case he was working on with his independent firm. Between midnight and 12:27 a.m., the Whitaker residence received four calls from “Durham, Bart,” according to a caller I.D. system, the suit says.

“After these disturbing calls, Plaintiff Robert L. Whitaker barely slept and had to proceed with the critical Pretrial Conference with virtually no sleep and in a state of anxiety, worry and distress due to these bizarre and inappropriate early morning calls from 'Durham, Bart,'” the suit reads.

Asked for an explanation for the calls, Durham explained his three-year-old grandson had gotten a hold the Phone belonging to his father – a fellow litigator – Blair Durham and accidentally made the calls, an explanation the suit calls “obviously improbably and likely false.”

Whitaker's suit also claims Durham sent a letter to his clients “offering his assistance” although he “was fully aware” the clients were represented by Whitaker.

The suit says Durham's unmerited lawsuit, his attempt to lure away Whitaker's clients and other actions “did, in fact, distract, annoy, embarrass and otherwise humiliate Plaintiff publically and undermine Robert L. Whitaker's effectiveness” while causing “severe emotional distress on the part.”

Whitaker also outlines a charge of breach of contract, claiming that, once he informed Durham he was not interested in the fees in question, Durham “agreed to dismiss the lawsuit against Robert L. Whitaker.” However, after filing a motion to dismiss with prejudice on Aug. 22, Durham struck down the move later, claiming he had “new information." Whitaker says Durham's new information was the knowledge that Whitaker planned to bring a suit against his former employer for abuse of process and libel once the initial suit was dismissed.

The Plaintiff “alleges that the 'new information' excuse is a pretext and a bad faith assertion of fact made in an effort to forestall a counter suit by Robert L. Whitaker,” the new filing states.

Whitaker is suing Durham for damages for economic loses, actual damages and punitive damages.

“We have done nothing wrong and know the facts will come out,” Durham told NashvillePost.com in an e-mail response. Whitaker declined to comment at this time.