                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                       September 21, 2005 Session

         RONALD DENNIS CRAFTON v. JOHN VAN DEN BOSCH, JR.

                    A Direct Appeal from the Circuit Court for Madison County
                      No. C-00-241    The Honorable Donald H. Allen, Judge



                     No. W2004-02959-COA-R3-CV - Filed November 30, 2005


        This is the second appeal of this legal malpractice action. The trial court initially denied
appellee/attorney’s motion for summary judgment and this Court, in Crafton v. Van den Bosch, No.
W2002-00679-COA-R9-CV, 2003 WL 327515 (Tenn. Ct. App. June 30, 2003), affirmed the trial
court and remanded the matter for further proceedings. Upon remand, the appellee/attorney filed a
second Motion for Summary Judgment on the grounds that appellant’s cause of action was time-
barred based upon the applicable statute of limitations found at T.C.A. §28-3-104(a)(2). The trial
court granted appellee/attorney’s motion. We affirm.


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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and HOLLY M. KIRBY , J., joined.

Ronald Dennis Crafton, Pro Se

Stephen L. Hughes of Milan, Tennessee, for Appellee, John Van Den Bosch, Jr.

                                                     OPINION

       By way of background, Ronald Crafton’s (“Appellant”) conviction for rape was entered on
November 25, 1991 and became final on or about February 16, 1992. Mr. Crafton fled for
approximately four years but eventually filed a pro se petition for post-conviction relief on
November 20, 1996. The petition was denied as was Mr. Crafton’s pro se petition for state habeas
corpus relief.1



         1
            Specifically, the court denied the petition based, in part, upon the expiration of the one-year statute of
limitations. Because the conviction became final on February 16, 1992, any petition for post-conviction relief must have
been filed by February 16, 1993.
        On July 13, 2000, Mr. Crafton filed a Complaint for Legal Malpractice against John Van den
Bosch, Jr. ( “Appellee”). On August 10, 2000, Mr. Van den Bosch filed a Motion to Dismiss,
claiming that Mr. Crafton’s Complaint was barred by the statute of limitations codified at T.C.A.
§28-3-104(a)(2). While the Motion to Dismiss was pending, Mr. Crafton filed a Motion for
Summary Judgment on October 5, 2000. On November 3, 2000, Mr. Van den Bosch filed a Motion
to dismiss Mr. Crafton’s Motion for Summary Judgment. Following a November 9, 2000 hearing,
the Motion to Dismiss was denied by Order entered on November 14, 2000. On November 13, 2000,
Mr. Van den Bosch filed an Answer to the Complaint. On November 29, 2000, Mr. Van den Bosch
filed a Response to Mr. Crafton’s Motion for Summary Judgment.

        On December 12, 2000, Mr. Van den Bosch filed a Motion to Set Aside the November 14,
2000 Order denying the Motion to Dismiss. The matter was continued and, on April 17, 2001, Mr.
Van den Bosch filed a Motion for Summary Judgment. All outstanding motions were heard on
January 3, 2002. An Order was entered February 1, 2002. Among other things, this Order denies
the cross motions for summary judgment. Mr. Van den Bosch filed an Application for Permission
to Appeal pursuant to Tenn. R. App. P. 9. This Court granted the Application to address Mr. Van
den Bosch’s sole issue of whether the trial court erred in denying Mr. Van den Bosch’s motion for
summary judgment. In Crafton v. Van den Bosch, No. W2002-00679-COA-R9-CV, 2003 WL
327515 (Tenn. Ct. App. June 30, 2003), this Court affirmed the trial court and remanded the matter
for further proceedings.

         Upon remand, on August 27, 2004, Mr. Van den Bosch filed a Motion for Summary
Judgment. In his Memorandum in support of the Motion for Summary Judgment, Mr. Van den
Bosch asserts, inter alia, that Mr. Crafton’s claim for malpractice is time-barred by the applicable
one year statute of limitations found at T.C.A. §28-3-104. On the same date, Mr. Van den Bosch
filed a “Motion to Dismiss” Mr. Crafton’s Complaint on the same ground outlined in the Motion for
Summary Judgment–that the Complaint is time-barred under the applicable statute of limitations.
On September 14, 2004, Mr. Crafton filed “Plaintiff Motion in Opposition to Defendant Motion to
Dismiss and/or Memorandum in Support of Their Motion for Summary Judgment Under Above
Style Claim.”

         The pending motions were heard on October 4, 2004. On November 24, 2004, the trial court
filed a letter opinion. The letter, dated November 19, 2004, reads, in pertinent part, as follows:

                      The Court has carefully reviewed and considered each of the
               defendant’s motions filed on August 27, 2004, those being the
               Motion to Dismiss, along with all of the attached exhibits, and the
               Motion for Summary Judgment, along with the memorandum in
               support of such motion. Furthermore, the Court has considered the
               entire court file, including all of the pleadings and affidavits
               previously filed in this case, plus all of the exhibits admitted into
               evidence at the hearing on October 4, 2004, along with the arguments
               presented by each party at that time.


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                      After much deliberation, the Court finds that the Motion to
              Dismiss the Complaint as being time barred is well-taken and
              therefore, is granted.

              *                                         *                        *

                      Likewise, issue two of the defendant’s Motion for Summary
              Judgment, which involves the same legal issue contained in the
              defendant’s Motion to Dismiss, is also granted for the same reasons
              as stated in this letter.

On December 14, 2004, the trial court entered an “Order to Dismiss,” which reads, in relevant
part, as follows:

                      This cause came on to be heard on October 4, 2004...upon the
              motion for summary judgment, along with memorandum in support
              of such motion filed on August 27, 2004 on the ground that the
              complaint is time-barred by the one year Statute of Limitations as
              stated in TCA §28-3-104(2). After hearing statements and arguments
              from both the defendant’s [sic], Attorney Stephen L. Hughes, and the
              pro se plaintiff, Ronald Crafton, the court finds that the Motion to
              Dismiss the Complaint as being time barred is well-taken and
              therefore, is granted. The [opinion letter] is...incorporated herein by
              reference as if copied verbatim.

       Mr. Crafton appeals pro se and raises four issues for review as stated in his brief:

              (1) Did the trial court error [sic] and exceed its jurisdiction, in its
              order to dismiss the appellant’s complaint, on the pretense that
              aforesaid complaint had not been filed within the prescribed time,
              thereby making the Appellate[] Court’s ruling null and void;

              (2) Did the trial court error [sic] in its decision to re-visit the issue of
              the defendant’s motion for summary judgment and motion to dismiss,
              once the Appeals Court, i.e. this “Honorable Court” had already
              a[d]judicated the matter;

              (3) Did the trial court error [sic] by allowing the defendant to
              introduce “New evidence” into the record, which challenged the
              statute of limitations of the appellant’s malpractice complaint, after
              this court had already ruled;




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                (4) Did the trial court abuse its discretion by over/ruling this []
                Honorable Court’s decision, deeming the complaint as “Time Barred”

         We perceive that there are, in fact, two dispositive issues in this case: (1) Whether the trial
court erred in considering Mr. Van den Bosch’s Motion for Summary Judgment upon remand; and,
if not, then (2) Whether the trial court erred in granting Mr. Van den Bosch’s Motion for Summary
Judgment on the basis that Mr. Crafton’s cause of action was time barred under the applicable statute
of limitations.

         Mr. Crafton first asserts that the trial court erred in even considering Mr. Van den Bosch’s
Motion for Summary Judgment after the case was remanded. This Court, in Crafton v. Van den
Bosch, No. W2002-00679-COA-R9-CV, 2003 WL 327515 (Tenn. Ct. App. June 30, 2003), affirmed
the trial court’s denial of Mr. Van den Bosch’s Motion for Summary Judgment filed April 17, 2001
(the “Original Motion for Summary Judgment”). This Court remanded for “such further proceedings
as may be necessary,” and no further instructions or limitations were placed upon the trial court.
Nonetheless, had Mr. Van den Bosch simply re-filed the Original Motion for Summary Judgment
upon remand, this Court would likely be of the opinion that same was res judicata based upon our
holding in Crafton v. Van den Bosch. We note, however, that the Original Motion for Summary
Judgment did not raise the issue of whether Mr. Crafton’s claim was time-barred. Furthermore, no
issue involving the Motion to Dismiss filed prior to the first appeal was raised in this Court. Upon
remand, Mr. Van den Bosch filed a second Motion for Summary Judgment on August 27, 2004 (the
“Second Motion for Summary Judgment”). The Second Motion for Summary Judgment raises the
statute of limitations question. Since the statute of limitations issue was neither raised in the original
appeal of this matter, nor discussed in this Court’s Opinion, we know of no rule of law prohibiting
the trial court’s review of this matter on remand. We now turn to the question of whether the trial
court properly granted Mr. Van den Bosch’s Second Motion for Summary Judgment.

         There is some confusion in the record as to whether, upon remand, the trial court granted the
Motion to Dismiss and/or the Motion for Summary Judgment on statute of limitations grounds. It
is clear, however, from the opinion letter that the trial court considered matters outside the pleadings
in reaching its decision. Consequently, our review of the trial court’s Order will be according to the
standard of review for motions for summary judgment. Tenn. R. Civ. P. 12.02 and 12.03. A motion
for summary judgment should be granted when the movant demonstrates that there are no genuine
issues of material fact and that the moving party is entitled to a judgment as a matter of law. See
Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of demonstrating
that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997).
On motion for summary judgment, the court must take the strongest legitimate view of evidence in
favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all
countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), our Supreme Court
stated:

                Once it is shown by the nonmoving party that there is no genuine
                issue of material fact, the nonmoving party must them demonstrate,


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               by affidavits or discovery material, that there is a genuine, material
               fact dispute to warrant a trial. In this regard, Rule 56.05 provides that
               the nonmoving party cannot simply rely upon his pleadings but must
               set forth specific facts showing that there is a genuine issue of
               material fact for trial.

Id. at 210-11 (citations omitted) (emphasis in original).

         Summary judgment is only appropriate when the facts and the legal conclusions drawn from
the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.
1995). Since only questions of law are involved, there is no presumption of correctness regarding
a trial court’s grant or denial of summary judgment. See Bain, 936 S.W.2d at 622. Therefore, our
review of the trial court’s denial of summary judgment is de novo on the record before this Court.
See Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

         Under T.C.A. § 28-3-104(a)(2) (2000), a plaintiff has a period of one year within which to
file a claim for legal malpractice. The discovery rule for legal malpractice means that a cause of
action accrues when (1) the client suffers an actual or legally cognizable injury, and (2) the client
knows, or in the exercise of reasonable diligence should know, that the injury was caused by the
attorney's negligence. Carvell, 900 S.W.2d at 28-30. With respect to the second requirement of this
rule, it is not necessary that the plaintiff "actually know that the injury constitutes a breach of the
appropriate legal standard in order to discover that he has 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 has suffered an injury as a result of wrongful conduct." Id. at 29 (quoting Roe v.
Jefferson, 875 S.W.2d 653, 657 (Tenn.1994)). "A plaintiff cannot be permitted to wait until he
knows all of the injurious effects or consequences of an actionable wrong." Carvell, 900 S.W.2d at
27 (quoting Sec. Bank & Trust Co. v. Fabricating, Inc., 673 S.W.2d 860, 864-65 (Tenn.1983)).

       Concerning when Mr. Crafton’s cause of action accrued, the trial court made the following,
relevant findings in its opinion letter, to wit:

               ...it’s evident from Mr. Crafton’s deposition testimony and other
               pleadings that when he hired Attorney John Van den Bosch sometime
               between April, 1994, and November, 1994, that Mr. Crafton knew his
               time to file any petition or motion for post-conviction relief was
               running. Mr. Crafton admitted in his letter to Attorney Van den
               Bosch, dated June 1, 2000, that he had discussed with him in October
               of 1994, that a motion needed to be filed quickly, otherwise Mr.
               Crafton’s chances of ever being able to receive such relief could
               possibly be barred forever.

                     As early as November 14, 1994, Attorney Van den Bosch
               conveyed by letter to Mr. Crafton’s mother, Rebecca Meredith, who


                                                  -5-
is the person who actually paid the $3,000 retainer fee, that based
upon his examination of the paperwork provided to him by Mr.
Crafton or his family members, that Attorney Van den Bosch “failed
to find any errors that would justify any significant appeal.”

       Furthermore, on November 18, 1996, Mr. Crafton filed a pro-
se “Post-Conviction Motion to Set Aside Jury Verdict and Dismiss
Indictment” in the Circuit Court for Henry County, Tennessee, the
county in which he was convicted. (The petition was stamped filed
by the Court Clerk on November 20, 1996).

      Shortly thereafter, on December 16, 1996, Judge Creed
McGinley entered an order dismissing the pro-se petition as being
time barred. (Filing date in Henry County Circuit Court was
December 18, 1996).

        The State of Tennessee, through its Assistant District Attorney
General Todd Rose, filed a motion to dismiss the pro-se petition for
post-conviction relief, claiming that the petition was barred by the
statute of limitations. Mr. Crafton even filed a written response to the
State’s motion, which he mailed to Judge McGinley and to the
District Attorney General’s office on December 27, 1996.

       On January 3, 1997, Mr. Crafton wrote a letter from the State
penitentiary to Attorney Van den Bosch, notifying him that he had
filed a pro-se post-conviction motion and that the motion was
pending. In that letter, Mr. Crafton requested Attorney Van den
Bosch’s immediate assistance and help in “taking over” the matter
and proceeding with this issue of post-conviction relief.

        On January 6, 1997, Judge Creed McGinley notified Mr.
Crafton by letter that his petition had been dismissed by Court Order
entered on December 14, 1996, pursuant to T.C.A. §40-30-206(b),
stating that it was time barred.

        Furthermore, by a letter from Attorney Van den Bosch to Mr.
Ricky Harris (Mr. Crafton’s “jail-house lawyer”) dated December 2,
1997, Attorney Van den Bosch stated his intention “not to represent”
Mr. Crafton in his pro-se appeal of the dismissal of the post-
conviction petition in Henry County Circuit Court. Attorney Van den
Bosch thereafter returned the papers mailed to him to Mr. Crafton and
his “jail house lawyer,” Ricky Harris.



                                  -6-
                       Additionally, Mr. Crafton wrote a letter to Lance Bracey with
               the Board of Professional Responsibility on May 29, 1996,
               complaining of other previous lawyers he had hired. At that time, he
               stated he had “nothing [pending] in any court at that time, and that he
               had been informed that he could not appeal his underlying case any
               further.”

                        This Court finds that at the very latest, Mr. Crafton was aware
               of facts sufficient to put him or any other reasonable person on notice
               that as of the end of December, 1997, he had suffered an injury as a
               result of Attorney Van den Bosch’s negligent and wrongful conduct.
               It’s only reasonable to believe that if Attorney Van den Bosch had not
               filed any petition or motion for post-conviction relief between April,
               1994, and the end of December, 1997, (especially when Mr. Crafton
               knew that the time for filing such request was running and about to
               expire), and that the sole reason he was hired was to file such a
               petition quickly, then certainly Mr. Crafton should have known in the
               exercise of reasonable diligence that Attorney Van den Bosch had
               negligently failed to take the proper actions to get his case back
               before the Court.

We have reviewed the entire record in this case, and we find that the material facts concerning Mr.
Crafton’s knowledge (either actual or constructive) regarding his cause of action are undisputed and
are composed, in large part, of Mr. Crafton’s own testimony and/or correspondence (either sent by
Mr. Crafton or directly to him). From all of the evidence, we agree with the trial court’s conclusion
that “any reasonable person (under the circumstance of this case) should have known at least by the
end of December, 1997, that Attorney Van den Bosch had [allegedly] failed to act appropriately, and
that such failure to file the petition would, by then, forever preclude the relief Mr. Crafton was
hoping to receive.” In fact, under all of the circumstances, we conclude that an accrual date of late
December, 1997 is generous. Even giving Mr. Crafton every benefit of the doubt concerning the
accrual date, his Complaint for legal malpractice was filed on July 13, 2000, which is well beyond
the one-year time limit imposed by T.C.A. §28-3-104(a)(2). Mr. Van den Bosch was, therefore,
entitled to judgment as a matter of law, and the trial court did not err in granting his Second Motion
for Summary Judgment.

       For the foregoing reasons, we affirm the Order of the trial court. Costs of this appeal are
assessed against the Appellant, Ronald Crafton, and his surety.


                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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