                                                                                     10/19/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                            September 18, 2017 Session

             MARK T. THOMAS v. RICHARD J. MYERS ET AL.

                 Appeal from the Circuit Court for Shelby County
                 No. CT-004397-15 William B. Acree, Senior Judge
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                          No. W2016-02581-COA-R3-CV
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This is a legal malpractice case. Appellees, who are licensed attorneys, represented
Appellant in a trademark infringement and consumer protection lawsuit in federal court
that resulted in a judgment against Appellant. On October 21, 2015, more than a year
after the federal court judgment, Appellant filed a complaint for misrepresentation and
negligence against Appellees. The trial court interpreted Appellant’s claims against
Appellees as a legal malpractice action and granted Appellees’ motion for summary
judgment on the ground that the one-year statute of limitations had expired prior to
commencement of the action. Tenn. Code Ann. § 28-3-104(c)(1). We affirm the trial
court’s judgment and remand.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                            Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN
and BRANDON O. GIBSON, JJ., joined.

Duncan E. Ragsdale, William R. Bruce, Memphis, Tennessee, for the appellant, Mark T.
Thomas.

Richard Glassman, Lacey Adair Bishop, Lauran G. Stimac, Clinton Crosier, Memphis,
Tennessee, for the appellees, Richard J. Myers, and Apperson Crump, PLC.
                                       OPINION

                                     I. Background

       In March 2012, Richard Myers and the law firm of Apperson Crump, PLC
(together, “Appellees”) represented Mark Thomas (“Appellant”) in a trademark
infringement and consumer protection case in federal court (“federal suit”). Mr. Thomas
was the defendant in the federal suit, and Fontaine Taylor was the plaintiff; both Mr.
Thomas and Ms. Taylor are real estate agents. In the federal suit, Ms. Taylor alleged that
Mr. Thomas’ real estate sign was nearly identical to hers, infringed on her trademark, and
violated the Tennessee Consumer Protection Act (“TCPA”). After a jury trial, the district
court entered judgment in favor of Ms. Taylor on April 28, 2014. Ms. Taylor was
awarded $36,500.00 in damages under the TCPA, $60,770.00 for Mr. Thomas’ violation
of the Lanham Act, and an additional $36,500.00 because Mr. Thomas’ violation of the
TCPA was done knowingly. Ms. Taylor also received a judgment for $237,982.01 in
attorney’s fees and $9,901.01 in additional costs. In addition, Ms. Taylor was granted a
permanent injunction enjoining Mr. Thomas from using the skyline sign. Mr. Thomas
appealed to the Sixth Circuit Court of Appeals, which affirmed the district court’s award
on August 3, 2015.

      On October 21, 2015, Mr. Thomas filed a Complaint in the Shelby County Circuit
Court (“trial court”) against Appellees for misrepresentation and negligence in
connection with Appellees’ representation in the federal suit. A month later, on
November 20, 2015, Mr. Thomas amended his Complaint to add a claim for violation of
the TCPA. On January 20, 2016, Mr. Thomas non-suited the negligence claims and
proceeded on the misrepresentation and the TCPA claims. Appellees filed their Answer
on January 27, 2016.

       On July 21, 2016, Appellees filed a Tennessee Rule of Civil Procedure 12.02
motion to dismiss the TCPA claim and a motion for summary judgment on the
misrepresentation claims. In the motion for summary judgment, Appellees argued that
the Appellant’s claims sounded in legal malpractice and that the statute of limitations for
legal malpractice had run. Mr. Thomas opposed these motions. The trial court heard the
motions on November 2, 2016, and granted Appellees’ motions by order of November 9,
2016. Specifically, the trial court: (1) denied Mr. Thomas’ motion for partial summary
judgment finding that the case sounded in legal malpractice not misrepresentation; (2)
granted Appellees’ Rule 12.02 motion dismissing the TCPA claim; and (3) granted
Appellees’ motion for summary judgment on the legal malpractice claim finding that Mr.
Thomas’ lawsuit was barred by the one year statute of limitations. Mr. Thomas appeals.




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                                         II. Issues

       At oral argument, Appellant conceded this is solely a legal malpractice action.
Therefore, we perceive that the sole dispositive issue is: Whether the trial court erred in
granting summary judgment on the ground that the statute of limitations for Appellant’s
legal malpractice action had run.

                                III. Standard of Review

       A trial court’s decision to grant a motion for summary judgment presents a
question of law. Therefore, our review is de novo with no presumption of correctness
afforded to the trial court’s determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.
1997). This Court must make a fresh determination that all requirements of Tennessee
Rule of Civil Procedure 56 have been satisfied. Abshure v. Methodist Healthcare-
Memphis Hosps., 325 S.W.3d 98, 103 (Tenn. 2010). When a motion for summary
judgment is made, the moving party has the burden of showing that “there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.”
Tenn. R. Civ. P. 56.04. According to the Tennessee General Assembly:

      In motions for summary judgment in any civil action in Tennessee, the
      moving party who does not bear the burden of proof at trial shall prevail on
      its motion for summary judgment if it:

      1) Submits affirmative evidence that negates an essential element of the
      nonmoving party’s claim; or

      2) Demonstrates to the court that the nonmoving party's evidence is
      insufficient to establish an essential element of the nonmoving party’s
      claim.

Tenn. Code Ann. § 20-16-101. Furthermore,

      “When a motion for summary judgment is made [and] . . . supported as
      provided in [Tennessee Rule 56],” to survive summary judgment, the
      nonmoving party “may not rest upon the mere allegations or denials of [its]
      pleading,” but must respond, and by affidavits or one of the other means
      provided in Tennessee Rule 56, “set forth specific facts” at the summary
      judgment stage “showing that there is a genuine issue for trial.” Tenn. R.
      Civ. P. 56.06. The nonmoving party “must do more than simply show that
      there is some metaphysical doubt as to the material facts.” Matsushita
      Elec. Indus. Co., [Ltd. v. Zenith Radio Corp.], 475 U.S. [574,] 586, 106 S.
      Ct. 1348 [(1986)]. The nonmoving party must demonstrate the existence of
      specific facts in the record which could lead a rational trier of fact to find in
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       favor of the nonmoving party.

Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 265 (Tenn. 2015).

                                              IV. Analysis

        The issue in this case is not whether the one year statute of limitations for legal
malpractice is applicable, but rather when the one year statute of limitations began to run,
i.e., when the cause of action accrued. Tenn. Code Ann. § 28-3-104(c)(1). In reaching its
decision that the statute of limitations had run on the Appellant’s legal malpractice
claims, the trial court found that:

       The case law is clear in the state of Tennessee. . . . [T]he statute of
       limitations for a legal malpractice claim begins to run at the latest following
       the judgment of the trial court upon which the suit is based or in this case,
       the statute of limitations for a legal malpractice claim ran on April 28,
       2015.

                                                   ***

       The [c]ourt finds that the statute of limitations ran on one year from the
       [d]istrict [c]ourt judgment, which would have been April the 28th, 2015, and
       that . . . this case was not timely filed.

In John Kohl & Co., P.C. v. Dearborn & Ewing, 977 S.W.2d 528 (Tenn. 1998), the
Tennessee Supreme Court instructed:

              The statute of limitations for legal malpractice is one year from the
       time the cause of action accrues. Tenn. Code Ann. § 28-3-104(a)(2).1 When
       the cause of action accrues is determined by applying the discovery rule.
       Under this rule, a cause of action accrues when the plaintiff knows or in the
       exercise of reasonable care and diligence should know that an injury has
       been sustained as a result of wrongful or tortious conduct by the defendant.
       Shadrick v. Coker, 963 S.W.2d 726, 733 (Tenn. 1998); Stanbury v.
       Bacardi, 953 S.W.2d 671, 677 (Tenn. 1997).

              In legal malpractice cases, the discovery rule is composed of two
       distinct elements: (1) the plaintiff must suffer legally cognizable damage—
       an actual injury—as a result of the defendant’s wrongful or negligent
       conduct, and (2) the plaintiff must have known or in the exercise of
       reasonable diligence should have known that this injury was caused by the

       1
           The relevant portion of this statute is now found at Tenn. Code Ann. § 28-3-104(c)(1).
                                                   -4-
defendant’s wrongful or negligent conduct. Carvell v. Bottoms, 900 S.W.2d
23, 28-30 (Tenn. 1995). An actual injury occurs when there is the loss of a
legal right, remedy or interest, or the imposition of a liability. See LaMure
v. Peters, 122 N.M. 367, 924 P.2d 1379, 1382 (1996). An actual injury may
also take the form of the plaintiff being forced to take some action or
otherwise suffer “some actual inconvenience,” such as incurring an
expense, as a result of the defendant’s negligent or wrongful act. See State
v. McClellan, 113 Tenn. 616, 85 S.W. 267, 270 (Tenn. 1905) (“[A
negligent act] may not inflict any immediate wrong on an individual, but . .
. his right to a remedy . . . will [not] commence until he has suffered some
actual inconvenience . . . . [I]t may be stated as an invariable rule that when
the injury, however slight, is complete at the time of the act, the statutory
period then commences, but, when the act is not legally injurious until
certain consequences occur, the time commences to run from the
consequential damage . . . .”). However, the injury element is not met if it is
contingent upon a third party’s actions or amounts to a mere possibility. See
Caledonia Leasing v. Armstrong, Allen, 865 S.W.2d 10, 17 (Tenn. App.
1992).

        The knowledge component of the discovery rule may be established
by evidence of actual or constructive knowledge of the injury. Carvell, 900
S.W.2d at 29. Accordingly, the statute of limitations begins to run when the
plaintiff has actual knowledge of the injury as where, for example, the
defendant admits to having committed malpractice or the plaintiff is
informed by another attorney of the malpractice. Under the theory of
constructive knowledge, however, the statute may begin to run at an earlier
date-whenever the plaintiff becomes aware or reasonably should have
become aware of facts sufficient to put a reasonable person on notice that
an injury has been sustained as a result of the defendant’s negligent or
wrongful conduct. Id. We have stressed, however, that there is no
requirement that the plaintiff actually know the specific type of legal claim
he or she has, or that the injury constituted a breach of the appropriate legal
standard. Shadrick, 963 S.W.2d at 733. Rather, “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 has suffered an injury as a result of
wrongful conduct.” Carvell, 900 S.W.2d at 29 (quoting Roe v. Jefferson,
875 S.W.2d 653, 657 (Tenn.1994)). “It is knowledge of facts sufficient to
put a plaintiff on notice that an injury has been sustained which is crucial.”
Stanbury, 953 S.W.2d at 678. A plaintiff may not, of course, delay filing
suit until all the injurious effects or consequences of the alleged wrong are
actually known to the plaintiff. Shadrick, 963 S.W.2d at 733; Wyatt v. A-
Best Company, 910 S.W.2d 851, 855 (Tenn. 1995). Allowing suit to be
filed once all the injurious effects and consequences are known would
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       defeat the rationale for the existence of statutes of limitations, which is to
       avoid the uncertainties and burdens inherent in pursuing and defending
       stale claims. Wyatt, 910 S.W.2d at 855.

John Kohl & Co., P.C., 977 S.W.2d at 532-33.

       At oral argument, Appellant argued that there was a genuine issue of fact as to the
second element of the discovery rule, i.e., when Appellant knew he suffered an injury as
a result of Appellees’ conduct in the underlying litigation. For this proposition,
Appellant relies on Wilson v. Mathes, 15 S.W.3d 865 (Tenn. Ct. App. Oct. 19, 1999)
perm. app. denied (Tenn. March 6, 2000). In Wilson, this Court determined that the
actions of the defendant attorney “could cause ‘reasonable persons’ to disagree as to
whether [the plaintiff] knew or should have known that he suffered an injury due to [the
attorney’s] negligence on the day that the trial court dismissed his cause of action.” Id. at
872. Because the facts presented in Wilson are distinguishable from this case, Wilson is
not controlling. In Wilson, this Court concluded that the facts did not support a finding
that the plaintiff “knew he had suffered an injury as a result of [the attorney’s] conduct
prior to the Court of Appeals affirmation of the trial court’s dismissal.” Id. Here, Mr.
Thomas admitted, in his deposition, a portion of which Appellees attached to the motion
for summary judgment, that he knew he had been harmed after the district court’s
judgment of April 28, 2014:

       Q:     . . . Now, let’s talk about the day that the judgment was rendered,
              and let me give you the exact date. There was an order entered on
              April 28, 2014 that granted Ms. Fontaine Taylor monetary damages .
              . . . On the same day, April 28, 2014, the judge entered a judgment
              in accordance with this order on the jury’s verdict with the treble
              damages and everything else. . . . So as of that day or within days
              thereafter, you were aware that you had lost.

       A:     Yes. This - - yes, Mr. Myers had called me.

       Q:     And you were aware that you had lost, for lack of a better term, big
              time, a lot of money.

       A:     A great deal of money, yes.

       Q:     And you were aware that the evaluation by Richard Myers was
              wrong.

       A:     Yes.

       Q:     And you were aware that Richard Myers’ deceptions as to what a
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             great case this was was wrong.

      A:     Yes. Yes.

      Q:     And you were aware that Richard Myers’ negligence and
             misrepresenting to you what the law was, what the facts could be
             presented as, and your great position in this lawsuit was wrong.

      A:     Yes.

      Q:     And you were aware on that day that he was not being truthful about
             the odds of winning.

      A:     Yes.

      Q:     And you were aware on the day that whatever risk outline he had
             given you, be it little, small, or none, was wrong, because the reality
             was you’d had a judgment rendered against you, so you knew he had
             misled you and deceived you.

      A:     Yes.

       By his own testimony, Appellant suffered an actual injury, stemming from the
representation in the underlying litigation, when the jury and the district court awarded
Ms. Taylor approximately $370,000.00 on April 28, 2014. The entry of this monetary
judgment and the permanent injunction prohibiting the use of the skyline sign clearly put
Appellant on notice that he had suffered an injury. As set out in context above, Appellant
admits as much in his deposition. In Cherry v. Williams, 36 S.W.3d 78 (Tenn. Ct. App.
2000), this Court explained:

      In litigation, the most easily identifiable time when rights, interests, and
      liabilities become fixed is when a court enters judgment. A judgment, after
      all, is “an adjudication of the rights of the parties in respect to the claim [s]
      involved.” Ward v. Kenner, 37 S.W. 707, 709 (Tenn. Ct. App. 1896)
      (defining judgment). Accordingly, most courts have made the entry of an
      adverse judgment the starter pistol for the running of the statute of
      limitations on litigation malpractice. See Laird v. Blacker, 2 Cal.4th 606, 7
      Cal.Rptr.2d, 550, 828 P.2d 691, 696 (1992); Jason v. Brown, 637 So.2d
      749, 752 (La. Ct. App. 1994); see also Tyler T. Ochoa & Andrew Wistrich,
      Limitation of Legal Malpractice Actions: Defining Actual Injury and the
      Problem of Simultaneous Litigation, 24 Sw. U .L. Rev. 1, 27-29 (1994). It
      is a court’s judgment that decrees the loss of a right or remedy or imposes a
      legal liability. Thus, when a judgment is entered, a “legally cognizable
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       injury” occurs.

Id. at 84-85.

        Nonetheless, Appellant argues that, because his attorneys continued to represent to
him that the district court’s judgment would be overturned at the appellate level, he did
not know he suffered an injury until the Sixth Circuit Court of Appeals affirmed the
district court’s judgment on August 3, 2015. As this Court explained in Cherry:

       A lawyer’s rosy characterization of an order adverse to the client does not
       amount to fraudulent concealment of malpractice. See Riddle v. Driebe, 153
       Ga.App. 276, 265 S.E.2d 92, 95 (1980). As long as the client is aware of
       the fact that the court has ruled against his or her rights or interests,
       arguably due to the lawyer’s mishandling of the case, then it matters not
       how counsel may try to downplay or “spin” the bad result. At that point the
       client is aware of the fact of injury. For statute of limitations purposes, that
       awareness is not negated by the lawyer’s assurances that the court rendering
       the adverse order got the law wrong. Nor does it matter that the lawyer
       states that he or she believes that an appellate court will reverse the adverse
       order. As we have previously said, “[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. Spar Gas,
       Inc. v. McCune, 908 S.W.2d 400, 404 (Tenn. Ct. App. 1995).

Cherry, 36 S.W.3d at 86. In view of the foregoing authority and Appellant’s own
testimony, there is no dispute that Appellant’s injury stemming from Appellees’
representation in the federal case and Appellant’s knowledge of that alleged injury,
occurred on the day that the district court entered judgment in favor of Ms. Taylor, on
April 28, 2014. Because Mr. Thomas did not file his legal malpractice case until October
21, 2015, the trial court correctly held that his claim was time-barred.

                                      V. Conclusion

        For the foregoing reasons, we affirm the trial court’s order. The case is remanded
for such further proceedings as may be necessary and are consistent with this opinion.
Costs of the appeal are assessed against the Appellant, Mark Thomas, and his surety, for
all of which execution may issue if necessary.

                                                  _________________________________
                                                  KENNY ARMSTRONG, JUDGE


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