                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                           April 14, 2009 Session

                   DAVID ARNOLD FERRELL v. FLETCHER LONG

                         Appeal from the Chancery Court for Warren County
                          No. 10354   Larry Barton Stanley, Jr., Chancellor



                          No. M2008-02232-COA-R3-CV - Filed May 14, 2009


The plaintiff, who paid for legal representation for his brother, sued the attorney for breach of
contract, fraud, theft by deception and conversion. The trial court found that the suit had been
commenced after the statute of limitations had run. The plaintiff appealed, claiming that his motion
for default judgment should have been granted, the statute of limitations had not run, and the judge
should have recused himself. We affirm the trial court in all respects.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

ANDY D. BENNETT , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, P.J., M.S.,
and FRANK G. CLEMENT , JR., J., joined.

David Arnold Ferrell, Spencer, Tennessee, Pro Se.

Edward T. Farmer, Springfield, Tennessee, for the appellee, Fletcher W. Long.

                                                     OPINION

       On May 19, 2003, David Ferrell entered into a contract with attorney Fletcher Long to
represent Ferrell’s brother, Lawrence Earl Ralph, Sr., in a criminal matter. Long agreed to place the
$7,500.00 fee into an escrow account and draw down the amount at a rate of $200 per hour. On June
16, 2003, Long filed a motion for judgment of acquittal or new trial, which was argued on August
13, 2003. The court denied the motion on March 17, 2004.

       At a post-conviction hearing on February 28, 2007, Long testified that he did not deposit the
$7,500.00 Ferrell paid him to defend Ralph into the escrow account. Ferrell filed a suit on March
11, 2008, alleging breach of contract1 and seeking the return of the entire $7,500.00 fee. Long filed
an answer and counterclaim on April 24, 2008.



       1
           Other pleadings filed by Ferrell allege fraud, theft by deception and conversion.
        On May 8, 2008, Ferrell filed a motion for a default judgment, maintaining that the April 24,
2008 answer was not filed within the 30 days allowed by the Tennessee Rules of Civil Procedure.
Long filed a response on May 16, 2008, claiming that certain exhibits were not attached to the
complaint and it took some time to get them; that the answer was filed before the motion for default
and that the case was not yet ready for trial since there had been no written or oral discovery. The
motion for a default judgment was heard August 26, 2008, and was denied. The trial court found
that Ferrell was not prejudiced by the late filing of the answer and that Long’s counsel had acted with
due diligence. Ferrell moved for the chancellor’s recusal claiming that the chancellor may need to
be a witness against Long.2 That motion was also denied, but the chancellor said that if “[i]t appears
[at] any time that I would be a material witness, I may recuse myself, and I will.”

        Long filed a motion to dismiss based on the statute of limitations, Tenn. Code Ann. § 28-3-
104(a)(2), and a motion for Rule 11 sanctions. Both motions were heard on October 14, 2008, and
both motions were granted. Ferrell appealed. He has raised three issues: whether the motion for
default judgment should have been granted, whether the appropriate statute of limitations is one or
three years, and whether the chancellor should have recused himself.3 Long, claiming the appeal is
frivolous, asks for attorney’s fees.

                                                       ANALYSIS

                                             Denial of Default Judgment

        “We review a trial court's denial of a motion for default judgment under an abuse of
discretion standard.” Logan v. Civil Service Comm’n of Memphis, No. W2007-00324-COA-R3-CV,
2008 WL 715226, *10 (Tenn. Ct. App. Mar. 18, 2008) (no Tenn. R. App. P. 11 application filed);
Broyles v. Woodson, No. E2004-00402-COA-R3-CV, 2005 WL 378929, *6 (Tenn. Ct. App. Feb.
17, 2005). An abuse of discretion occurs where the trial court applies an incorrect legal standard or
where it reaches a decision that is illogical or unreasoned and causes an injustice to the complaining
party. Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004). “Under the abuse of
discretion standard, a trial court's ruling ‘will be upheld so long as reasonable minds can disagree
as to propriety of the decision made.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting
State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000)). The trial court specifically found that Ferrell was
not prejudiced by the late filing of the answer and that Long’s counsel had acted with due diligence.
We cannot say that the chancellor’s decision to deny the motion for a default judgment is an abuse
of discretion.




         2
          The chancellor was also the judge who heard the motion Long filed on behalf of Ralph. The Thirty-first
Judicial District has only one judge, who acts as chancellor for chancery court cases and as circuit judge for circuit court
cases.

         3
             W e note that Ferrell did not appeal the trial court’s imposition of Rule 11 sanctions against him.

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                                        Statute of Limitations

         The interpretation of a statute and the application of that statute to undisputed facts involve
issues of law. U.S. Bank, N.A. v. Tenn. Farmers Mut. Ins. Co., 277 S.W.3d 381, 386 (Tenn. 2009).
This appeal involves the interpretation and application of Tenn. Code Ann. § 28-3-104(a)(2) and,
therefore, the applicable standard of review is de novo, with no presumption of correctness attaching
to the legal conclusions reached by the trial court. Id.

       The Court of Appeals has already addressed the statute of limitations in the breach of contract
context:

       On appeal, Ms. Swett argues that her claim is not one of legal malpractice but of a
       breach of contract, and that it is governed by the six-year statute of limitations in
       Tenn. Code Ann. § 28-3-109.

       We disagree. Tenn .Code Ann. § 28-3-104(a)(2) governs “actions and suits against
       attorneys or licensed public accountants or certified public accountants for
       malpractice, whether the actions are grounded or based in contract or tort.” We think
       it is instructive to note that this section of the statute was passed by the legislature on
       May 17, 1967, in the first session after the Supreme Court's December 1966 decision
       in Hillhouse v. McDowell, 219 Tenn. 362, 410 S.W.2d 162 (1966). In that case, the
       court held that an action for malpractice for failing to timely file an action for
       personal injuries was a breach of contract and was governed by what is now Tenn.
       Code Ann. § 28-3-109. The court distinguished its earlier decision in Bland v. Smith,
       197 Tenn. 683, 277 S.W.2d 377 (1955), in which it applied the one-year statute to a
       legal malpractice action because, as the court read the declaration, it alleged a tort for
       personal injuries. We think the legislature sought to remove any doubt about which
       statute applied to a malpractice claim, and it chose the one-year period of limitations.

       In addition, the courts are admonished to determine the appropriate statute of
       limitations “according to the gravamen of the complaint,” Keller v. Colgems-EMI
       Music, Inc., 924 S.W.2d 357 (Tenn. Ct. App. 1996); and it seems to us that the
       gravamen of Ms. Swett's complaint is not Mr. Binkley's breach of a promise. Instead,
       it is a complaint that he failed to recover all the fees and expenses from Mr. Swett or
       his estate. That complaint clearly comes within the legal malpractice statute of
       limitations contained in Tenn. Code Ann. § 28-3-104(a)(2).

Swett v. Binkley, 104 S.W.3d 64, 67 (Tenn. Ct. App. 2002). Like Swett, this case involves a claim
for breach of contract against an attorney. Swett found that the one year statute of limitations
governs this situation. Id. Since Tenn. Code Ann. § 28-3-104(a)(2) applies to torts as well, it also
controls Ferrell’s claims for fraud, theft by deception and conversion.




                                                  -3-
        A legal action under Tenn. Code Ann. § 28-3-104(a)(2) must “be commenced within one (1)
year after the cause of action accrued .” Tenn. Code Ann. § 28-3-104(a). The cause of action against
Long accrued at the latest on February 28, 2007, the date when Long allegedly testified in Ralph’s
post-conviction proceeding that he entered into the contract to represent Ralph and that he failed to
deposit the $7,500.00 fee in an escrow account. Ferrell’s complaint was filed on March 11, 2008,
more than one year after the cause of action accrued. The trial court was correct in granting Long’s
motion to dismiss.

                                            Motion to Recuse

          Impartiality is the bedrock upon which our judicial system is built. Our Supreme Court has
stated:

          Given the importance of impartiality, both in fact and appearance, decisions
          concerning whether recusal is warranted are addressed to the judge's discretion,
          which will not be reversed on appeal unless a clear abuse appears on the face of the
          record. A motion to recuse should be granted if the judge has any doubt as to his or
          her ability to preside impartially in the case. However, because perception is
          important, recusal is also appropriate when a person of ordinary prudence in the
          judge's position, knowing all of the facts known to the judge, would find a reasonable
          basis for questioning the judge's impartiality. Thus, even when a judge believes that
          he or she can hear a case fairly and impartially, the judge should grant the motion to
          recuse if the judge's impartiality might reasonably be questioned. Hence, the test is
          ultimately an objective one since the appearance of bias is as injurious to the integrity
          of the judicial system as actual bias. However, the mere fact that a judge has ruled
          adversely to a party or witness in a prior judicial proceeding is not grounds for
          recusal. . . . If the rule were otherwise, recusal would be required as a matter of
          course since trial courts necessarily rule against parties and witnesses in every case,
          and litigants could manipulate the impartiality issue for strategic advantage, which
          the courts frown upon.

Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564-65 (Tenn. 2001) (citations omitted). Ferrell has
failed to demonstrate that the trial judge was, or was likely to become, a material witness.
Furthermore, we note that the chancellor said that if “[i]t appears [at] any time that I would be a
material witness, I may recuse myself, and I will.” Under these circumstances, we do not find that
the judge abused his discretion in denying the motion to recuse.

        Additionally, in his brief, Ferrell alleges that he filed a complaint against the chancellor with
the Court of the Judiciary. This complaint appears to arise out of the length of time it took for the
chancellor, acting as the circuit judge, to rule on Long’s motion in Ralph’s criminal case. Due to this
complaint, Ferrell claims the chancellor should have recused himself. Ferrell’s brief contains no
citation to the record where this complaint was put in evidence or even mentioned. We have
searched the record and find no evidence of, or references to, this complaint. Consequently, Ferrell’s


                                                    -4-
argument in this regard must fail for lack of proof. Also, an argument not presented to the trial court
is waived. Correll v. E.I. DuPont de Nemours & Co., 207 S.W.3d 751, 757 (Tenn. 2006).

                                           Attorney’s Fees

        Long argues that Ferrell’s appeal is frivolous and that he should be awarded his attorney’s
fees incurred in defending the appeal. We respectfully decline to exercise our discretion to award
attorney’s fees in this case.

                                             Conclusion

        The trial court is affirmed. Costs of appeal are assessed against the appellant, David Arnold
Ferrell, for which execution may issue if necessary.



                                                       ___________________________________
                                                       ANDY D. BENNETT, JUDGE




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