IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 16, 2005 Session
LEONARD HARTMAN v. JOHN T. MILBURN ROGERS, JERRY W.
LAUGHLIN, WILLIAM S. NUNNALLY and ROGERS, LAUGHLIN,
NUNNALLY, HOOD & CRUM, P.C.
Direct Appeal from the Circuit Court for Greene County
No. 03CV661 Hon. Kindall T. Lawson, Circuit Judge
No. E2004-01953-COA-R3-CV - FILED APRIL 18, 2005
In this legal malpractice action against attorneys, the Trial Court granted all defendants summary
judgment. On appeal, we affirm on grounds that the statute of limitations ran before the suit was
filed.
Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.
HERSCHEL PICKENS FRANKS , P.J., delivered the opinion of the court, in which D. MICHAEL SWINEY,
J., and SHARON G. LEE, J., joined.
David B. Hamilton, Knoxville, Tennessee, for appellant.
Thomas L. Kilday, Greenville, Tennessee, for appellees.
OPINION
Plaintiff has appealed from the summary judgment granted to the defendants in an
action for legal malpractice stemming from plaintiff’s divorce case.
As of the date of appeal to this Court, the defendants herein are the fourth, fifth, and
sixth in a succession of nine attorneys employed by the plaintiff in connection with his divorce.
The Trial Court granted summary judgment to defendants on several grounds,
including the statute of limitations, and we conclude that whether the statute had run is the
determinative issue on appeal.
By way of background, the Trial Court filed its Memorandum on the plaintiff’s
divorce case on January 26, 2000, and a Final Decree was entered on February 17, 2000. Attorney
Bud Cunningham was Plaintiff’s third attorney and represented plaintiff in the divorce case to its
completion on January 21, 2000. He was not named as a defendant in this action. Plaintiff’s
Complaint does refer to his unsatisfactory representation for failure to prepare the case adequately
by not impeaching the plaintiff’s now ex-wife when she denied the existence of a marital debt to
plaintiff’s mother for $127,000.00.
The crux of plaintiff’s dissatisfaction centers around the Trial Court’s division of the
marital assets and debt. The Court charged the plaintiff with the responsibility for a marital debt
owed to plaintiff’s mother of $127,000.00, on property ultimately awarded to the wife. Plaintiff’s
wife had denied the existence of any marital debt in this regard, but the Trial Court credited
plaintiff’s testimony, characterized the debt as marital indebtedness, and ordered plaintiff to pay all
the marital debts.1
On March 15, 2000, defendant Rogers filed a Motion to Alter or Modify the final
decree on behalf of plaintiff, but the trust deed was not addressed. On July 17, 2000, the Trial Court
entered a Final Decree overruling the Motion to Alter or Amend, and defendant Rogers did not
represent plaintiff beyond that juncture.
In December of 2000, plaintiff employed defendant Nunnally for the purpose of
preparing instruments necessitated by the Final Judgment of Divorce, including a Note, Deed of
Trust and Release of Deed of Trust. Nunnally reviewed the state of the title to the property in the
Registrar of Deeds office for Greene County, and noted a Deed of Trust dated April 20, 1993 given
by Leonard and Sharon Hartman to plaintiff’s mother, securing an indebtedness described in the
Deed of Trust. Nunnally prepared a Release of the Trust Deed because the Final Decree had
awarded that property to the wife to be unencumbered by any lien. Plaintiff signed the Release on
December 13, 2000, which concluded Nunnally’s representation of plaintiff.
Defendant Laughlin was employed by plaintiff to then appeal the single issue of the
alimony award. The allocation of marital assets and debt was not appealed and this Court affirmed
1
The parties through their attorneys filed a joint statement of assets and liabilities in the
divorce trial. An exhibit in evidence at that trial sets forth, “Debt to Husband’s Mother” His value
“$127,000.00.” Her value “$0".
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the Trial Court’s award of alimony in an Opinion filed July 20, 2001.2 On July 19, 2002, plaintiff
filed a malpractice complaint against the defendants herein, except Nunnally, and on July 30, 2002,
the Complaint was non-suited. On July 10, 2003, the malpractice complaint herein was filed, and
also named Nunnally as a defendant.
It is plaintiff’s position that he had forgotten about executing the Deed of Trust on
April 23, 1993, and never advised any of his attorneys of its existence until it was brought to his
attention by Nunnally.
This Court, in reviewing summary judgments, accord no presumption of correctness
to the lower Court’s judgments, because the issues are questions of law. Staples v. CBL & Assoc.,
Inc., 15 S.W.3d 83, 88 (Tenn. 2000); Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997). To
properly support a motion for summary judgment, the moving party must either affirmatively negate
an essential element of the non-moving party’s claim or conclusively establish an affirmative
defense. McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.1998).
In Cherry v. Williams, 36 S.W.3d 78 (Tenn. Ct. App. 2000), we said:
Defenses based on a statute of limitations are particularly amenable to summary
judgment motions. [Citation omitted]. Most often the facts material to a statute of
limitations defense are not in dispute. When the facts and the inferences reasonably
drawn from the facts are not disputed, the courts themselves can bring to bear the
applicable legal principles to determine whether the moving party is entitled to a
judgment as a matter of law. Cherry, 36 S.W.3d at 83.
A cause of action for legal malpractice accrues and the statute of limitations
commences when: (1) the attorney had committed negligence; (2) the defendant’s negligence causes
the plaintiff to suffer a legally cognizable or actual injury; and (3) the plaintiff knows, or in the
exercise of reasonable care and diligence should have discovered the existence of facts constituting
negligence by the attorney at the injury caused thereby. Carvell v. Bottoms, 900 S.W.2d 23, 28, 30
(Tenn. 1995); Caldonia Leasing v. Armstrong, Allen, Braden, Goodman, McBride & Prewitt, 865
S.W.2d 10, 13 (Tenn. Ct. App. 1992); Ameraccount Club, Inv., v. Hill, 617 S.W.2d 876, 878-79
(Tenn. 1981).
Plaintiff argues that his “injury” did not occur until his loss in the Court of Appeals
2
This Court, in its Opinion on the appeal of the divorce referenced the disputed debt thusly:
The Trial Court also ordered defendant [plaintiff herein] to pay all of the parties’
marital debts of $239,000.00. As one of the parties’ marital debts, defendant claimed
a debt owed to his mother in the amount of $127,000.00. Plaintiff disputed that this
was a marital debt.
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in July 2001, eighteen months after the final decree of divorce, because only then did he finally
understand he had no recourse against his wife for a portion of the debt owed to his mother. Because
he had relied upon his attorneys’ representations to him that everything was proceeding normally up
till that point, and he insists, he did not comprehend the legal effect of the deed of trust when it was
brought to his attention in December, 2000, and he should not be imputed with knowledge of it.
This position ignores the fact that plaintiff himself had actual knowledge of this document, having
executed it in 1993.
The statute of limitations is tolled if an attorney fraudulently conceals facts from a
client, but the statute is not tolled where the client is aware that the court has ruled against him on
the issue. Cherry, 36 S.W.3d 86: “‘[W]e do not believe that reliance upon erroneous legal advice
can operate to toll the statute of limitations’ inasmuch as the discovery rule relating to injury only
applies to matters of fact unknown to a prospective plaintiff, not to matters of law. Id. Quoting Spar
Gas, Inc. V. McCune, 908 S.W.2d 400, 404 (Tenn. Ct. App. 1995).
In the Carvell case, this Court implied that a client could not be deemed to have the
knowledge of a legal injury until he had been so advised by another professional. However, the
Supreme Court rejected this as a standard for discovery of a cause of action for professional
misconduct noting:
[I]t is not required that the plaintiff actually know that the injury constitutes a breach
of the appropriate legal standard in order to discover that he had a right of action, the
plaintiff is deemed to have discovered the right of action if he is aware of facts
sufficient to put a reasonable person on notice that he had suffered an injury as a
result of a wrongful conduct.
Carvell, 900 S.W.2d, 23, 28 (Tenn. 1995). Quoting Roe v. Jefferson, 875 S.W.2d 653, 657 (Tenn.
1994). Moreover, a plaintiff may not wait until he knows of all the injurious effects or consequences
of an actionable wrong before taking action. Security Bank & Trust Co., 673 S.W.2d at 864-65.3
It is not necessary that the injury become irremedial for purposes of the limitations period; rather it
must be a “legally cognizable” or “actual” injury. Carvell, 900 S.W.2d at 29-30; Bradson
Mercantile, Inc., v. Crabtree, 1 S.W.3d 648, 653 (Tenn. Ct. App. 1999). Actual injury is said to
exist when the plaintiff is forced to take some action or otherwise suffer “some actual
inconvenience” such as incurring an expense, as a result of a negligent or wrongful act, John Kohl
& P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 531 (Tenn. 1998), or has suffered the loss of a right,
remedy, or interest, or the imposition of a liability. Cherry, at 84. In litigation, the most easily
identifiable time when this occurs is the entry of an adverse judgment. Id. In the case at bar, the
final divorce decree was entered on February 7, 2000. Plaintiff’s Motion to Alter or Amend the
Judgment was denied by Order entered July 19, 2000.
3
Plaintiff’s discontent focused on the fact that attorney Cunningham was unprepared to
impeach plaintiff’s wife with the deed of trust at trial, and that she received the property free and
clear without sharing any responsibility for the debt.
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Since Carvell, Tennessee has consistently rejected the argument that an appeal tolls
the running of the statute in all cases. See Cherry v. Williams, 36 S.W.3d 78 (Tenn.Ct. App. 2000)
(statute of limitations not delayed despite court of appeals’ affirming trial court award of damages
and increasing the award of punitive damages.); Bradson v. Mercantile, Inc., v. Crabtree, 1 S.W.3rd
648 (Tenn. Ct. App. 1999); Wilkins v. Dodson, Parker, Shipley, Behm & Seaborg, 995 S.W.2d 575
(Tenn. Ct. App. 1998).
The reason for the rule is self-evident. If a legal injury has occurred, whether or not
it is corrected later at the appellate level does not erase the fact that the injury had occurred in the
first place. The standard for accrual of the cause of action is “legally cognizable” not “final
disposition”. Indeed, the Supreme Court has held that the legal error by a trial court which delays
the final disposition of a lawsuit, even though the error is eventually corrected, will not toll the
running of the statute of limitations where the elements for malpractice are present. Chambers v.
Dillow, 713 S.W.2d 896, 898 (Tenn. 1986). The discovery rule refers to matters of fact, not to
matters of law. Spar Gas, Inc. Giving the plaintiff the benefit of the doubt that he has sustained a
legal injury, he “learned” about the deed of trust in December 2000, and he realized that his wife had
testified falsely about the indebtedness. Moreover, he had actual knowledge about the document
from its execution, but had “forgotten about it”. There is no basis in law or fact in this record to toll
the filing of a malpractice action for two years after the divorce judgment had been finally entered.
We conclude that the statute of limitations ran as to all defendants prior to the filing of this action
as found by the Trial Court.
We affirm the Judgment of the Trial Court on this issue, and pretermit the other issues
raised on appeal.
The cost of the appeal is assessed to Leonard Hartman.
______________________________
HERSCHEL PICKENS FRANKS , P.J.
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