     IN THE COURT OF APPEALS WESTERN DIVISION OF TENNESSEE

                                     AT JACKSON
                                                        FILED
                                                          April 30, 1998

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

JERRY CUNNINGHAM,                          ) C/A NO. 02A01-9712-CV-00299
                                           )
       Plaintiff-A ppellant,               ) SHELB Y CIRC UIT
                                           )
v.                                         ) HON . DICK W. JE RMAN, J R.,
                                           ) JUDGE - BY INTERCHANGE
BAKER DONELSON, BEARMAN,                   )
& CA LDW ELL , P.C.,                       ) AFFIRMED
                                           ) AND
       Defendant-Appellee.                 ) REMANDED




JERR Y CU NNIN GHA M, pro se.

ARNOLD GOLDIN, Mem phis, for Defendant-Appellee.




                                     O P I N IO N


                                                       Franks, J.


              This legal malpractice action was filed on January 29, 1997, and the

Trial Court, responding to a motion to dismiss, dismissed the action as being barred by

the statute of limitations. Plaintiff has appealed.

              The gravamen of plaintiff’s complaint is as follows:

              On or about September 24, 1991, Plaintiff obtained the services of the
              Defendant to represent himself and his closely held corporation in the
              Chancery Court lawsuit of M & M Instant Package Delivery versus
              Southland Co urier Corporation, VIP Express, Inc. And Jerry
              Cunningham. When first presented with the case Plaintiff was already
              the subject o f an injunc tion which prohibited th e sale or trans fer of his
              business and upon which the bond or surety posted by Plaintiff was
              $500.00. The injunction was improper as Plaintiff in that suit had no
              property interest in the Defendant’s business and ultimately, in the
              litigation, Defendant received back this $500.00 as sanction against the
              Plaintiff. Defendant’s counsel, Michael Richards, failed to object to the
              injunction, the bond for the injunction, and to adequately advise and
              apprise your plaintiff herein.

              The record establishes tha t the attorney of the defendant firm

representing plaintiff me t with plaintiff on Septem ber 25, 199 1, regarding the lawsu it

which had been filed against plaintiff on September 23, 1991. The plaintiff in that

case had obtained a temporary restraining order prohibiting Cunningham from

transferring any contract rights that he had as a result of his purchase o f the plaintiff’s

assets in 1990. Negotiations with that plaintiff’s attorney ensued, and an agreement

was reached whereby plaintiff would non-suit defendant VIP from that action and the

application for a preliminary injunction would not go forward. The restraining order

expired by its terms on Oc tober 7 , 1991.

              Cunningham filed an affidavit in response to the motion to dismiss

wherein he states in pe rtinent part:

              2. On Se ptember 2 3, 1991 S CC w as served w ith a TRO issued in
              Chancery Court, Division II, which temporarily restrained the
              conveyance of certain assets to VIP Express, Inc., which was also
              restrained by the court. These assets includ ed those which w ere
              acquired in August 1990 through a contractual acquisition whereby SCC
              purc hase d the m from M &M Insta nt Delive ry Compa ny.

              3. As procedures for merging SCC and VIP Express had already begun
              and the SCC drivers and other employees had been previously notified
              in a staff meeting attended by VIP officers that Friday, September 28,
              1991 would be the company’s final day of business prior to a merger of
              all operations, this TRO - even though it was prescribed to expire on
              October 7 - presente d a serious a nd potentia lly damaging problem to
              both companies. SCC was potentially affected by the TRO to a much
              greater degree than VIP Express.

               4. Immediate notice of the TRO service was made to Mr. Richards. He
               conferred with counsel for VIP Express and M & M Delivery and
               together they set up a meeting of all parties to take place on September
               26, 1991.


                                             2
              5. This meeting was largely moderated by Mr. Richards. He devoted
              most of the time to citing the various ways in which the TRO was
              illegally obtained and further claimed tha t counsel for M& M Delivery
              had violated profession al ethics as defined in Ru le 11. Counsel for V IP
              Express concu rred completely and later filed a brief in C hancery Court
              which affirms this position. Counsel for M&M D elivery was not
              persua ded by th ese arg umen ts.

              ...

              7. Mr. Ric hards left the city on 9/26/91 and I did n ot comm unicate w ith
              him until his return the following week after which I had already abided
              by the terms set forth in the TRO and had also followed the instructions
              of William Fones, in whose care I was placed, to turn over all assets of
              M&M prior to the close of business on 9/28/91. I followed all of these
              orders.

              8. No efforts were made by Baker-Donelson other than those stated
              above to terminate the TRO or to mitigate potential damages by asking
              the court for an increase in the $500 posted bond.

              9. The TRO did not allow me to perform as called for in the agreement
              between SCC and VIP Express. There were other compounding and
              exponentially damaging problems which were also set into motion as a
              result of the TRO. A re-negotiated settlement was finally agreed to and
              executed some three months later. All the corporation’s cash flow and
              the money which was to have been paid in September, October and
              November as per the original agreement was totally cut off. Serious
              financial pro blems aro se as a result.

              10. Bake r-Donelso n filed a co unter-suit aga inst M& M De livery in
              December of ‘91 citing the illegality of the TRO.

Defendant law firm withdrew from representing plaintiff herein, when plaintiff filed a

Chapter 7 bankrup tcy in February 19 92, and pla intiff then hire d other cou nsel to

represe nt him in the actio n brou ght by M &M Delive ry.

              The plaintiff conclud es his affidavit by stating that he was n ot aware

that defendant “might be culpable of legal malpractice until a meeting in the office of

the Chief Disciplinary Counsel for the Board of Responsibility on February 4, 1996",

and he contends that the statute of limitations began to run in this case on that date.

              In review ing the gran t of summ ary judgmen t, we review the eviden ce in

the light most favorable to plaintiff, drawing all reasonable inferences in his favor and

disrega rd all cou ntervail ing evid ence. Byrd v. H all, 847 S.W.2d 208, 210 (Tenn.

                                             3
1993). If there is a disputed issue of material fact we are required to vacate the

summ ary judgm ent and reman d for tria l. Rule 5 6, T.R.C .P.

               The statute of limitations in this case has run on plaintiff’s action unless

the “discovery rule” is applicable. The discovery rule is described in Carvell v.

Bottoms, 900 S.W.2d 23 at 28 (Tenn. 1995), where the Court said:

               [t]he “legal malpractice discovery rule” is composed of two distinct
               elements:
               (1) the plaintiff must suffer, pursuant to the Ameraccount dicta, an
               “irre med iable injury” 1 as a result of the defendant’s negligence, and (2)
               the plaintiff must have known or in the exercise of reasonable diligence
               should have kn own that this injury was cause d by defendant’s
               negligence.

The record demonstrates that plaintiff was aware of a “legally cognizable injury” or

“actual injury” at the time the restraining order w as served upon h im. Plaintiff’s

affidavit in the record made on January 25, 1995, detailed the manner in which he was

damaged as a result of the restraining order. Plaintiff’s other affidavit reveals that he

was made aware at the meeting on September 26, 1991 that according to his lawyer

the TRO was illegally ob tained, and h e was ap prised of th e procedu re followe d by his

counsel in allowing the TRO to ex pire under the rules of co urt. He was also aw are

that only a $500 bond had been made at the time the TRO was issued. Moreover, he

knew that his attorney did not ask for an increase in the bond, nor was any formal

effort made to lift the temporary restraining order. In sum, the plaintiff was aware that

he had be en dama ged by the issu ance of a n improp er restraining o rder, and his

attorney who advised plaintiff at that time that the TRO was illegally obtained, did not

take procedural steps to have the order rescinded, the issuance of the TRO being,

   1

       Carvell elaborated on irreparable injury as follows:

       [w]e can no longer even approve of the usage of the adjective “irremedial” in this context.
       This term, which was first used in pure dicta by the Ameraccount court has caused confusion
       from its inception, and serves no useful purpose. Therefore, to avoid further confusion, we
       conclude that henceforth the term “legal cognizable injury” or “actual injury” should be used
       in this context. Id. 29-30.


                                                 4
according to plaintiff, the cause of his damages.

              Accordingly, we conclude that plaintiff actually knew in September

1991, as evidenced by his admissions that he had been injured by a TRO which was

illegally obtained a nd that his law yer took no ste ps to increas e the bond or seek to

have the order lifted. We therefore affirm the judgment of the Trial Court because

there are no material facts in the record to bring this action within the “legal

malpractice discovery rule.” See Car vell.

              The costs of the app eal are assess ed to appe llant.




                                             __________________________
                                             Herschel P. Franks, J.


CONCUR:




___________________________
Don T. McM urray, J.




___________________________
Charles D. Susano, Jr., J.




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