                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                               Assigned on Briefs November 5, 1999

                     DAVID STOVALL v. CHRISTOPHER L. DUNN

                           Appeal from the Circuit Court for Maury County
                                No. 8593    Jim T. Hamilton, Judge


                        No. M1999-00200-COA-R3-CV - Filed June 11, 2002


This appeal involves a state prisoner’s civil rights action against a private lawyer appointed to
represent him in a post-conviction proceeding. The prisoner filed suit against his former lawyer in
the Circuit Court for Maury County alleging that the lawyer, motivated by racial bias, had
intentionally deprived him of an opportunity to seek appellate review of an adverse decision of the
Tennessee Court of Criminal Appeals and had refused to provide him with his case file. The lawyer
moved for summary judgment on the ground that the prisoner’s complaint was barred by the statute
of limitations. The trial court granted the summary judgment, and the prisoner has appealed. We
have determined that the trial court erred by granting the summary judgment because there is a
genuine factual issue regarding whether the prisoner’s complaint is time-barred.

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

WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S.,
and PATRICIA J. COTTRELL, J., joined.

David Stovall, Only, Tennessee, Pro Se.

Christopher L. Dunn, Columbia, Tennessee, Pro Se.

                                                    OPINION

                                                         I.

        On January 6, 1992, David Stovall pleaded guilty to seven aggravated felony charges, and
the Circuit Court for Maury County sentenced him to serve thirty-five years in state custody.1 Mr.
Stovall began attacking his guilty pleas soon after his incarceration at the Turney Center in Hickman
County. In August 1992, he filed a pro se petition for post-conviction relief in the Circuit Court for
Maury County arguing that his pleas were involuntary because he had been under the influence of
marijuana and Valium and because his public defender had not adequately explained the plea


         1
          Mr. Stovall pleaded guilty to one count of aggravated robbery, two counts of aggravated rape, two counts of
agg ravated kidnaping , and two counts of aggravated assault. Stova ll v. State, N o. 01C 01-9401-C C-00022, 1995 WL
2997, at *1 (Te nn. Crim. Ap p. Jan. 5, 1995) (No Tenn. R. A pp. P. 11 application filed).
agreement. At some point during 1993, the trial court appointed Christopher L. Dunn, a private
lawyer in Columbia, to represent Mr. Stovall in the post-conviction proceeding.

        Mr. Stovall, who is an African-American, claims that he first met Mr. Dunn shortly before
the August 18, 1993 evidentiary hearing on his post-conviction petition. He asserts that Mr. Dunn
told him on that occasion “I must tell you honestly, I don’t particularly care for blacks who date
outside their own race, and I don’t think you should expect too much to come out of this case.”
After the trial court dismissed Mr. Stovall’s petition on January 11, 1994, Mr. Dunn perfected an
appeal on Mr. Stovall’s behalf to the Tennessee Court of Criminal Appeals.

         Despite the fact that the Court of Criminal Appeals filed an opinion affirming the dismissal
of his post-conviction petition on January 5, 1995, Mr. Stovall asserts that Mr. Dunn never informed
him of the appellate decision. He claims that Mr. Dunn never responded to his repeated telephone
calls and correspondence regarding the status of his appeal or to his repeated requests for a copy of
his file. Finally, on November 18, 1998, Mr. Stovall wrote the appellate court clerk regarding the
status of his appeal. The clerk responded by sending both Mr. Stovall and Mr. Dunn a copy of the
case history indicating that the Court of Criminal Appeals had affirmed the dismissal of his post-
conviction petition on January 5, 1995. The clerk also informed Mr. Stovall that he could obtain a
copy of the Court of Criminal Appeals’ opinion from Mr. Dunn. According to Mr. Stovall, Mr.
Dunn neither contacted him nor sent him the Court of Criminal Appeals’ opinion or his case file.

       Mr. Stovall took two actions after discovering that the Court of Criminal Appeals had long
since disposed of his appeal. First, he filed a motion in the trial court seeking a delayed appeal
pursuant to Tenn. Code Ann. § 40-30-213 (1997).2 Second, on March 5, 1999, he filed suit against
Mr. Dunn in the Circuit Court for Maury County alleging that Mr. Dunn had violated 42 U.S.C. §§
1981 and 1982 by intentionally depriving him of his right to seek review of the Court of Criminal
Appeals’ January 5, 1995 opinion and by refusing to provide him his case file because of his race.3

        Mr. Dunn responded to Mr. Stovall’s complaint with a motion for summary judgment
asserting that the complaint was barred by the one-year statute of limitations in Tenn. Code Ann. §
28-3-104(a)(3) (2000). Thereafter, Mr. Stovall moved for a change of venue to Hickman County
based on his discovery of Tenn. Code Ann. § 41-21-803 (1997).4 Following a hearing on May 10,
1999, which Mr. Stovall apparently did not attend, the trial court filed an order on May 17, 1999



         2
           The Circuit Court for Maury Coun ty denied M r. Stovall’s motion for a delayed appeal on August 11, 1999.
The Court of Criminal Appeals affirmed this decision because Tenn. Code Ann. § 40-30-213 does not permit delayed
app eals from the denial o f post-con viction petition s. Stovall v. State , N o. M 1999-00937-C CA -R 3-PC, 1999 WL
126 192 6, at *1 (Ten n. Crim. A pp. D ec. 29 , 199 9), perm. app. denied (Tenn. M ay 15, 20 00).

         3
         Although not relevant to the issues raised in this ap peal, we gather from Mr. Stovall’s Tenn. Code Ann. § 41-
21-805 (1997) affidavit that he filed a similar suit against Mr. Dunn in the Circuit Court for Hickman County.

         4
           Tenn. Code Ann. § 41-21-803 provides: “Except as otherwise provided by law, an action that accrued w hile
the plaintiff inmate was housed in a facility operated by the department [of correction] shall be brought in the county
in which the fac ility is located.”

                                                         -2-
granting Mr. Dunn’s summary judgment motion. The trial court never specifically addressed Mr.
Stovall’s motion for change of venue.5

       Mr. Stovall has perfected an appeal to this court. He asserts that the trial court erred by
granting the summary judgment because of his pending motion for change of venue and because Mr.
Dunn’s failure to notify him of the January 5, 1995 opinion by the Court of Criminal Appeals tolled
the running of the statute of limitations. For his part, Mr. Dunn asserts that the trial court correctly
determined that Mr. Stovall’s complaint was time-barred. He also argues for the first time that he
is immune from suit pursuant to Tenn. Code Ann. § 8-14-209 (1993) because he was acting as a
“public defender” as defined in Tenn. Code Ann. § 40-14-201 (1997).

                                                                II.
                                   MR. DUNN’S BELATED IMMUNITY DEFENSE

       We turn first to Mr. Dunn’s claim that we should dismiss Mr. Stovall’s appeal because he
is immune from suit. He first raised this claim in a motion to consider post-judgment facts pursuant
to Tenn. R. App. P. 14. We denied this motion on November 12, 1999, pointing out that the motion
more properly involved supplemental argument rather than supplemental facts. Mr. Dunn has now
included this argument in his brief.

        By making this argument, Mr. Dunn is undertaking to rely on a defense that he failed to
present to the trial court. Because our jurisdiction is appellate only, Tenn. Code Ann. § 16-4-
108(a)(1) (1994); Smith v. Harriman Util. Bd., 26 S.W.3d 879, 887 (Tenn. Ct. App. 2000), we
customarily decline to consider arguments that were not first presented to the trial court and that are
being raised for the first time on appeal. Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147,
153 (Tenn. 1991); Williamson County Broad. Co. v. Intermedia Partners, 987 S.W.2d 550, 553
(Tenn. Ct. App. 1998); Sweeney v. State Dep’t of Transp., 744 S.W.2d 905, 906 (Tenn. Ct. App.
1987). Accordingly, we decline to consider Mr. Dunn’s immunity argument based on Tenn. Code
Ann. §§ 8-14-209 and 40-14-201.

                                                               III.
                               MR. STOVALL’S BELATED OBJECTION TO VENUE

        We turn next to Mr. Stovall’s assertion that the trial court should not have granted the
summary judgment because the proper venue for his lawsuit was Hickman County where Turney
Center is located rather than Maury County where Mr. Dunn resides. While it is unlikely that Tenn.
Code Ann. § 41-21-803 applies to suits by state prisoners against persons who are not state
employees for conduct unrelated to the operation of the institution where the prisoner is housed, we
need not address this issue now because both Mr. Stovall and Mr. Dunn have waived their
opportunity to question venue in this case.



          5
         For the purpose of this opinion, we assume that the trial court implicitly denied Mr. Stovall’s motion to change
venue because it proceeded to add ress Mr. Dunn ’s summary judgment motion on its merits. Accordingly, we construe
the May 17, 19 99 o rder as final beca use, either ex plicitly o r imp licitly, it disposed of all the claims betwe en the p arties.

                                                                -3-
         Mr. Stovall’s claim against Mr. Dunn involves a transitory cause of action. In a proceeding
involving a transitory cause of action, venue is nothing more than the personal privilege of the
defendant to be sued in particular statutorily-defined counties. Turpin v. Conner Bros. Excavating
Co., 761 S.W.2d 296, 297 (Tenn. 1988); Corby v. Matthews, 541 S.W.2d 789, 791 (Tenn. 1976).
In these sorts of cases, venue is not equated with subject matter jurisdiction. Accordingly, a
defendant will be deemed to have waived improper venue by failing to contest it in the first pleading.
Tenn. R. Civ. P. 12.08; Meighan v. U.S. Sprint Communications Co., 924 S.W.2d 632, 639 (Tenn.
1996). Similarly, a plaintiff will be deemed to have waived an objection to venue simply by filing
suit in a county about which it later objects. Corby v. Matthews, 541 S.W.2d at 791.

        Mr. Stovall filed his suit against Mr. Dunn in Maury County, thereby waiving any later
objection to improper venue in Maury County. Similarly, Mr. Dunn moved for a summary judgment
based on the statute of limitations without objecting to venue. He likewise lost his opportunity to
take issue with venue. Because both parties have waived their right to raise the venue issue, we
conclude that the trial court did not err by proceeding to address Mr. Dunn’s pending summary
judgment motion.

                                                  IV.
                               MR. DUNN’S STATUTE OF LIMITATIONS DEFENSE

        As a final matter, we turn to the summary dismissal of Mr. Stovall’s complaint against Mr.
Dunn on the ground that it was filed after the running of the statute of limitations. Mr. Stovall
advances two reasons why the trial court should not have granted the summary judgment. First, he
asserts that Mr. Dunn’s motion was premature because it was filed within thirty days after he filed
his complaint. Second, he asserts that the summary judgment was inappropriate because of genuine
factual disputes regarding when his cause of action against Mr. Dunn accrued.

                                                               A.

        We turn first to Mr. Stovall’s claim premised on Tenn. R. Civ. P. 56.01 that Mr. Dunn’s
summary judgment motion was premature because it was filed twenty-five days after he filed his
complaint. Mr. Stovall’s reliance on Tenn. R. Civ. P. 56.01 is misplaced because, by its own terms,
the thirty-day restriction applies only to “[a] party seeking to recover upon a claim, counterclaim,
or cross-claim or to obtain a declaratory judgment.” While this limitation is mandatory, Craven v.
Lawson, 534 S.W.2d 653, 655 (Tenn. 1976), it is inapplicable to defensive summary judgment
motions such as the one Mr. Dunn filed.6 Accordingly, Mr. Stovall’s argument based on Tenn. R.
Civ. P. 56.01 is without merit.
                                                  B.

      Mr. Stovall’s second argument based on the existence of genuine factual disputes regarding
Mr. Dunn’s statute of limitations defense has substantially more merit. Summary judgments should


         6
           The purpose of the thirty-day restriction on offensive sum mary jud gme nt motions is obvious. The d rafters
of the rules desired to prev ent a plaintiff from placing the case at issue until the defend ant has been afford ed a reasonab le
opp ortunity to d etermine wh at the case is abo ut and to assert appro priate defen ses.

                                                              -4-
not be granted when genuine disputes regarding the material facts exist. Tenn. R. Civ. P. 56.04.
Accordingly, we must examine the record to determine whether Mr. Dunn was entitled to a judgment
as a matter of law based on the undisputed facts.

                                                  1.

        A question of material fact exists when reasonable minds differ regarding whether a material
occurrence happened. Conatser v. Clarksville Coca-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn.
1995); Harrison v. Southern Ry. Co., 31 Tenn. App. 377, 387, 215 S.W.2d 31, 35 (1948). If
reasonable minds could justifiably reach different conclusions based on the evidence at hand, then
a genuine question of fact exists. Louis Dreyfus Corp. v. Austin Co., 868 S.W.2d 649, 656 (Tenn.
Ct. App. 1993). If, on the other hand, the evidence, and the inferences to be reasonably drawn from
the evidence, permit a reasonable person to reach only one conclusion, then there are no material
factual disputes, and the issue may be disposed of as a matter of law. Webber v. State Farm Mut.
Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001); Brown v. Birman Managed Care, Inc., 42 S.W.3d
62, 66 (Tenn. 2001).

        The party seeking a summary judgment bears the burden of demonstrating that no genuine
dispute of material fact exists and that it is entitled to a judgment as a matter of law. Shadrick v.
Coker, 963 S.W.2d 726, 731 (Tenn. 1998); Pendleton v. Mills, ___ S.W.3d ___, ___, 2001 WL
1089503, at *4 (Tenn. Ct. App. 2001). Armoneit v. Elliott Crane Serv., 65 s.W.3d 623, 627 (Tenn.
Ct. App. 2001). Once the moving party demonstrates that it has satisfied these requirements, the
nonmoving party must show how Tenn. R. Civ. P. 56’s requirements have not been satisfied. Bain
v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997).

         Mere conclusory generalizations will not create a genuine factual dispute sufficient to prevent
the trial court from granting a summary judgment. Fariello v. Rodriguez, 148 F.R.D. 670, 680
(E.D.N.Y. 1993); Cawood v. Davis, 680 S.W.2d 795, 796-97 (Tenn. Ct. App. 1984). The
nonmoving party must convince the trial court that there are sufficient factual disputes to warrant
a trial. The nonmoving party may carry its burden by (1) pointing to evidence either overlooked or
ignored by the moving party that creates a factual dispute, (2) rehabilitating evidence challenged by
the moving party, (3) producing additional evidence that creates a material factual dispute, or (4)
submitting an affidavit in accordance with Tenn. R. Civ. P. 56.07 requesting additional time for
discovery. McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998); Byrd v. Hall,
847 S.W.2d 208, 215 n. 6 (Tenn. 1993); DeVore v. Deloitte & Touche, No. 01A01-9602-CH-00073,
1998 WL 68985, at *3 (Tenn. Ct. App. Feb. 20, 1998) (No Tenn. R. App. P. 11 application filed).
Nonmoving parties who do not carry their burden face summary dismissal of the challenged claim
because, as our courts have repeatedly observed, the “failure of proof concerning an essential
element of a cause of action necessarily renders all other facts immaterial.” Alexander v. Memphis
Individual Practice Ass’n, 870 S.W.2d 278, 280 (Tenn. 1993); Strauss v. Wyatt, Tarrant, Combs,
Gilbert & Milom, 911 S.W.2d 727, 729 (Tenn. Ct. App. 1995).

                                                   2.




                                                  -5-
        The parties’ pleadings and motions provide the court with guidance for determining which
facts are material and whether these facts are in dispute. Thus, we turn first to Mr. Stovall’s
complaint and Mr. Dunn’s summary judgment motion. While Mr. Stovall’s complaint lacks clarity,
he appears to be asserting that Mr. Dunn violated his constitutional rights by (1) depriving him of
his opportunity to request the Tennessee Supreme Court to review the Court of Criminal Appeals’
disposition of his appeal; (2) refusing to file a Tenn. R. App. P. 11 application on Mr. Stovall’s
behalf;7 and (3) refusing to surrender Mr. Stovall’s case file to prevent him from filing a pro se Tenn.
R. App. P. 11 application.8 While the record is not sufficiently developed for us to determine the
merits of any of these claims, we have determined that they appear to state claims under 42 U.S.C.
§§ 1981 and 1982.

        Mr. Dunn argues that the substance of Mr. Stovall’s allegations is irrelevant because the
statute of limitations barred Mr. Stovall from asserting any claims against him. He asserts that Mr.
Stovall’s cause of action accrued on February 10, 1995, when the Court of Criminal Appeals issued
its mandate and, therefore, that Mr. Stovall lost the right to sue Mr. Dunn when he failed to file suit
by February 9, 1996.9 Mr. Stovall responds that the statute of limitations was tolled because he did
not learn that the Court of Criminal Appeals had decided his appeal, despite his diligent efforts to
obtain a status update from Mr. Dunn, until the appellate court clerk sent him a copy of his case
history on November 20, 1998.



         7
            The record does n ot reflect that M r. Du nn filed a w ritten m otion to withdra w as cou nsel fo r M r. Stov all.
Matlock v. State, No. 01C01-9703-CR-0009 1, 1998 WL 265494, at * 4 (Tenn. Crim. Ap p. May 27, 1998 ) perm. app.
denied (Tenn. Dec. 7, 1998) (holding that an attorney may withdraw to avoid filing a frivolous appeal only after
complying with Tenn. S. Ct. R. 14). Mr. Dunn apparently did not file such a motion because he states in his brief that
he told M r. Stov all that he was withdrawing during a telephone call shortly after the Court of Criminal Appeals filed
its opin ion.

         8
           Tenn. S. Ct. R. 8, D.R. 2-110 (A)(2) and E .C. 2-32 require a withdrawing lawyer to protect his or her client
by, am ong other thing s, delivering the clien t’s pap ers to the client. Seve ral co urts have applied these and other
disciplinary rules in case s invo lving prisoners. See, e.g., Fields v. Bagley, 275 F.3d 478, 484 (6th Cir. 2001) (holding
that appointed cou nsel violated E.C. 2-31); Nolan v. Foreman, 665 F.2d 738, 742-43 (5th Cir. 1982) (finding a violation
of D .R. 9-102 (B)(4 )); Summ ers v. Thompson, 444 F. Supp. 312 , 314 -15 (M .D. T enn . 197 7) (retained attorney); State
v. Maddagan, 19 P .3d 1 289 , 129 3 (H aw. 200 1); Wa rd v. State, 740 S .W.2d 794, 797 (Tex. C rim. A pp. 19 87). Th us,
Mr. Stovall may have stated a claim for violation of 42 U.S.C. § 1982 if he had a protectible property interest in his legal
papers. Murray v. National Broad. Co., 844 F.2d 988 , 994 -95 (2d Cir. 19 88). Mo reov er, if M r. Stov all has a property
right to his file, Mr. Dunn could not avoid surrendering the file by asserting that Mr. Stovall could not have paid him
the costs of copying the file since the lawyer must pay copying costs when he voluntarily withdraws from representing
a client. Greig v. Mac y’s Northeast, 1997 U .S. Dist. LEX IS 228 41, at * 7 (D .N.J. N ov. 1 7, 19 97); In re Kaufman, 567
P.2d 957 , 960 (Nev . 1977).

         9
           W e do not agree that M r. Stovall’s cause of action accrued on February 10, 1995. In January 1995, Tenn. R.
App. P. 11(b) required parties to file their application for permission to appeal within thirty (30) days after the filing
of the intermediate appellate court’s judgmen t unless a timely petition for rehearing had been filed in the in term ediate
app ellate court. Perso ns w ho d id no t file their Tenn. R. App. P. 11 application or a motion for an extension of time
within thirty days after the entry of the intermediate appellate court’s judgmen t lost their right to seek discretionary
review by the Tennessee Supreme Court. Accordingly, since neither Mr. Stovall nor Mr. Dunn filed a timely petition
for rehearing in the Court of Criminal Appeals, the deadline for filing a Tenn. R. App. P. 11 application would have
been February 6, 1995, not February 10, 1995.

                                                             -6-
        Civil actions for violations of the federal civil rights statutes are governed by the same one-
year statute of limitations governing legal malpractice actions.10 The Tennessee Supreme Court has
set out the principles governing the application of the “legal malpractice discovery rule” for the
purpose of this statute of limitations. The court held that the discovery rule contains two elements
– (1) an irremediable injury caused by the defendant and (2) the plaintiff’s actual or imputed
knowledge that his or her injury was caused by the defendant. Carvell v. Bottoms, 900 S.W.2d 23,
28 (Tenn. 1995). More recently, the court has held that

                    When the cause of action accrues is determined by the discovery rule.
                    [citation omitted] 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.

Gibson v. Trant, 58 S.W.3d 103, 117 (Tenn. 2001) (quoting John Kohl & Co. v. Dearborn & Ewing,
977 S.W.2d 528, 532 (Tenn. 1998)). The same discovery rule applies to civil actions for damages
under the federal civil rights statutes. Warren v. Scott, 845 S.W.2d 780, 783 (Tenn. Ct. App. 1992).

        Mr. Dunn’s appellate brief describes at some length a conversation he purportedly had with
Mr. Stovall shortly after the Court of Criminal Appeals released its opinion.11 Unfortunately, the
affidavit Mr. Dunn submitted to support his summary judgment motion fails to mention this
conversation. The only relevant facts contained in Mr. Dunn’s affidavit are (1) that Mr. Dunn moved


         10
            Tenn. Code Ann. § 28-3-104(a)(2) (malpractice actions aga inst attorneys); Tenn. Code Ann. § 28-3-104
(a)(3) (civil actions for compen satory and pun itive damages brou ght under the federal civil rights statutes).

         11
              We quote Mr. Dunn’s brief verbatim:

                   The appellant [M r. Stov all] indicated that he first learned of the Appellee’s [Mr. Dunn]
         alleged failure to file [an] application for permission to appeal the ruling of [the] Tennessee Court of
         Criminal Appeals to the Supreme Court in November, 1998. After further recollection and review,
         an appeal to the Supreme Court was not filed on M r. Stov all’s behalf; how ever, very shortly after the
         decision, approximately two (2) days, Appellant telephoned App ellee and Appellee informed him of
         the adverse decision of the Co urt of Crim inal Ap peals, which w ould have bee n som etime early
         February of 1995. A ppellee explained to App ellant that the chances of prevailing to [sic] the
         Tennessee Suprem e Court were very slim . Appellee advised Appellant that he would be withdrawing
         as counsel, and would not be filing an appeal to the Supreme Court. Appellee advised Appellant that
         he could file an appeal pro se, and that he had thirty days from the date of the decision. Appellant
         seemed content that best efforts were used, and that his sentences would remain in effect. Sometime
         later, (approximately one month), Appellee receiv ed a telephone call from M r. Charles Burson
         [Tennessee’s Attorney General and Reporter] from the Attorney General’s office. Mr. Burson
         informed Ap pellee that the Stov all case was placed on the docket.. [sic] Appellee told Mr. Burson that
         he did not think that he had petitioned for certiorari. Mr. Burson stated that sometimes the court
         wo uld place these m atters by their ow n m otion . Mr. Burson asked if Appellee wanted to orally argue
         the motion. Appellee informed him that he would waive the motion. However, after reviewing the
         court’s docket, there is no record of the Supreme Court’s deciding the case.

The brief contains no citations to the record for any of these statements, and with goo d reason. Non e of these facts are
in the appellate record.

                                                           -7-
his office after the August 18, 1993 post-conviction hearing, (2) that Mr. Stovall’s file “remained
archived with my former law partner, Gene Hallworth at 21 Public Square, Columbia, TN 38401,”
and (3) “I did not have any of Mr. Stovall’s file.”

        In contrast, Mr. Stovall’s affidavit opposing Mr. Dunn’s motion for summary judgment
contains the following statements: (1) “Mr. Dunn never informed affiant of the Appeal Court’s
opinion;” (2) Mr. Dunn “never withdrew from representing affiant in compliance with Supreme
Court Rule 14;” (3) “[t]hat affiant made several requests to Mr. Dunn attempting to learn the status
of affiant’s case on appeal between the periods of April 8, 1994 and November 4, 1998; including
phone calls and written communications, but Mr. Dunn ignored all request [sic] for information and
never responded;” (4) “[t]hat on or about November 18, 1998, affiant sent a letter to the Criminal
Court of Appeals at Nashville and made inquiry regarding the status of affiant’s appeal . . .;” (5)
[t]hereafter, the Appeals Court informed affiant of the disposition of the Appeal and told affiant that
copies of the final opinion could be obtained from the office of my attorney; Mr. Dunn;” and (6) that
“[t]he Case History Notice of affiant’s appeal from the Appeals Court in November 1998 was the
first and only notice affiant received.”

        Based on the undisputed facts in Mr. Stovall’s affidavit, we find that Mr. Stovall has
presented facts demonstrating (1) that he suffered an injury, (2) that his injury was caused by Mr.
Dunn, (3) that he did not know he had sustained an injury until November 1998, and (4) that he
should not necessarily have known that he had sustained an injury prior to November 1998. The
injury is the failure to file a timely application for permission to appeal from the January 5, 1995
Court of Criminal Appeals opinion.12 This injury was attributable to Mr. Dunn because, as far as this
record shows, Mr. Dunn was still representing Mr. Stovall at the time. No evidence refutes Mr.
Stovall’s assertion that he did not learn of the judgment of the Court of Criminal Appeals until
November 1998.13 Finally, there is no factual basis for concluding that Mr. Stovall should have
learned earlier that the Court of Criminal Appeals had affirmed the dismissal of his post-conviction
petition because there is no evidence that prior to February 6, 1995, Mr. Stovall knew or should have
known that Mr. Dunn had withdrawn from representing him or that he had any other means to learn
of the action by the Court of Criminal Appeals.

         Because Mr. Stovall’s affidavit opposing Mr. Dunn’s summary judgment motion is
undisputed, the trial court erred by concluding that Mr. Dunn had demonstrated that there were no
genuine disputes of material fact and that he was entitled to a judgment as a matter of law because
Mr. Stovall’s complaint was time-barred under Tenn. Code Ann. § 28-3-104(a)(3). Accordingly,
the trial court erred by granting Mr. Dunn’s motion and dismissing Mr. Stovall’s complaint.



         12
             W e express no opinion regarding the merits of Mr. Stovall’s claim that he was injured by M r. Dunn’s failure
to file a timely Tenn. R. App. P. 11 application. At this stage of the proceeding, we must presum e that Mr. Stovall has
stated a claim upon which relief might be granted. It is not our role at this point to determine whether the Tennessee
Supreme Court would have granted Mr. Stovall’s application had it been filed or whether the court would have
overturned the denial of his post-conviction petition.

         13
           The Court of Criminal Appeals sends a copy of its opinions to the attorney s of record , not to the prisoners.
Thus, w hen the Jan uary 5, 19 95 o pinio n w as relea sed, it w ould have bee n sen t to M r. Du nn, n ot to M r. Stov all.

                                                            -8-
                                                  V.

        The judgment granting the summary judgment is reversed, and the case is remanded to the
trial court for further proceedings consistent with this opinion. The costs of this appeal are taxed to
Christopher L. Dunn for which execution, if necessary, may issue.



                                                       _____________________________
                                                       WILLIAM C. KOCH, JR., JUDGE




                                                 -9-
