                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                           Assigned on Briefs September 20, 2000


                    KENNETH L. STOREY v. DAVID J. POSS

                       Appeal from the Chancery Court for Knox County
                       No. 135471-2 Hon. Daryl L. Fansler, Chancellor

                                    FILED OCTOBER 6, 2000

                                  No. E1999-00192-COA-R3-CV


Plaintiff/Appellant is an inmate at West Tennessee High Security Prison in Hennig, Tennessee,
pursuant to a conviction for aggravated rape. Defendant, a Tennessee attorney, was appointed by
the General Sessions Court to represent Plaintiff at a preliminary hearing on that charge. After that
hearing, Plaintiff was bound over to the grand jury for trial. Plaintiff asked the Criminal Court to
dismiss Defendant as his counsel and to appoint another attorney. The Criminal Court granted
Plaintiff’s request and appointed new counsel on April 18, 1996. On August 29, 1997, Plaintiff
filed this legal malpractice action against Defendant in Chancery Court asking for damages of
$730,000. Defendant filed a Motion for Summary Judgment asserting that there are no genuine
issues of material fact and that the one-year statute of limitations for attorney malpractice claims bars
Plaintiff’s claim. The Chancellor granted Defendant’s Motion for Summary Judgment and dismissed
Plaintiff’s Complaint. We affirm.

        Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed; Case Remanded.

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HOUSTON M. GODDARD , P.J.,
and HERSCHEL P. FRANKS , J., joined.

Kenneth L. Storey, Henning, Tennessee, Pro Se.

David J. Poss, Knoxville, Tennessee, Pro Se.


                                              OPINION

                                             Background

              Kenneth L. Storey, Plaintiff, was arrested on August 4, 1995 in Knox County and
charged with aggravated rape. The arresting officer observed the acts resulting in the criminal
charge. On August 19, 1995, the Knox County General Sessions Court appointed Defendant, David
J. Poss, to represent Plaintiff. Defendant met with Plaintiff and advised him of the nature of the
charges, the evidence, and the expected testimony of the victim, witnesses and two arresting officers.
On September 1, 1995, the preliminary hearing was held in General Sessions Court. Defendant
represented Plaintiff at that hearing. The victim, witnesses, and arresting officers testified. The
Court found that probable cause existed to believe that Plaintiff committed the offense of aggravated
rape and ordered that Plaintiff be bound over to the grand jury.

                Plaintiff was subsequently arraigned in April 1996, and at that hearing, Plaintiff
requested that other counsel represent him. The Trial Court excused Defendant from representing
Plaintiff and appointed substitute counsel on April 18, 1996.

               On August 29, 1997, Plaintiff filed this suit against Defendant for legal malpractice.
Defendant Answered that he was court-appointed to represent the Plaintiff on an Aggravated Rape
Warrant and that Plaintiff received a preliminary hearing, but denied all other allegations in the
Complaint and asked the Court to dismiss the Complaint. On April 22, 1999, Defendant filed a
Motion for Summary Judgment pursuant to Rule 56 of the Tennessee Rules of Civil Procedure,
stating that there exist no material facts for trial and that Defendant had no attorney/client
relationship with Plaintiff within one year of the filing of Plaintiff’s cause of action. The Trial Court
found the Defendant’s Motion to be well taken and dismissed Plaintiff’s Complaint. Plaintiff
appeals.

                                              Discussion

              The standards governing an appellate court’s review of a motion for summary
judgment are well settled:

                 Since our inquiry involves purely a question of law, no presumption of
        correctness attaches to the lower court’s judgment, and our task is confined to
        reviewing the record to determine whether the requirements of Tenn. R. Civ. P. 56
        have been met. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997); Cowden
        v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991). Tennessee Rule
        of Civil Procedure 56.03 provides that summary judgment is appropriate where: (1)
        there is no genuine issue with regard to the material facts relevant to the claim or
        defense contained in the motion, see, Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.
        1993); and (2) the moving party is entitled to a judgment as a matter of law on the
        undisputed facts. See Anderson v. Standard Register Co., 857 S.W.2d 555, 559
        (Tenn. 1993). The moving party has the burden of proving that its motion satisfies
        these requirements. See Downen v. Allstate Ins. Co., 811 S.W.2d 523, 524 (Tenn.
        1991). When the party seeking summary judgment makes a properly supported
        motion, the burden shifts to the nonmoving party to set forth specific facts
        establishing the existence of disputed, material facts which must be resolved by the
        trier of fact. See Byrd v. Hall, 847 S.W.2d at 215.



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         To properly support its motion, the moving party must either affirmatively negate an
         essential element of the non-moving party’s claim or conclusively establish an
         affirmative defense. See McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588
         (Tenn. 1998); Robinson v. Omer, 952 S.W.2d 423. 426 (Tenn. 1997). If the moving
         party fails to negate a claimed basis for the suit, the non-moving party’s burden to
         produce evidence establishing the existence of a genuine issue for trial is not
         triggered and the motion for summary judgment must fail. See McCarley v. West
         Quality Food Serv., 960 S.W.2d at 588; Robinson v. Omer, 952 S.W.2d at 426. If the
         moving party successfully negates a claimed basis for the action, the non-moving
         party may not simply rest upon the pleadings, but must offer proof to establish the
         existence of the essential elements of the claim.1

                 The standards governing the assessment of evidence in the summary
         judgment context are also well established. Court must view the evidence in the light
         most favorable to the nonmoving party and must also draw all reasonable inferences
         in the nonmoving party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v.
         Hall, 847 S.W.2d at 210-11. Courts should grant a summary judgment only when
         both the facts and the inferences to be drawn from the facts permit a reasonable
         person to reach only one conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153
         (Tenn. 1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 88 (Tenn. 2000).

                  In this case, Defendant filed a Motion for Summary Judgment asserting that there are
no genuine issues of material fact. That Motion was accompanied by a Statement of Material Facts
sworn to by the Defendant. The Statement of Material Facts details that Defendant represented
Plaintiff at his preliminary hearing; the case was bound over to the grand jury; at Plaintiff’s
arraignment in Criminal Court, Plaintiff requested that Defendant be dismissed as his attorney and
that another attorney be appointed to represent him; the Trial Court granted Plaintiff’s request; and
Defendant had no attorney/client relationship with Plaintiff within one year of the filing of
Defendant’s suit in Chancery Court. The record reveals that the material facts are undisputed. In
fact, Plaintiff in his opposition to Defendant’s summary judgment motion agreed that Defendant had
no attorney/client relationship with Plaintiff within one year of Plaintiff’s suit being filed. Plaintiff
in his opposition also admits that he may have been aware of Defendant’s alleged negligence as early
as May 14, 1996.

             The statute of limitations for malpractice actions against attorneys is addressed in
Tenn. Code Ann. § 28-3-104, which provides:

         1
           A non-moving party may satisfy his or her burden by (1) pointing to evidence overlooked or ignored by the
moving party that establishes a material factual dispute, (2) by rehabilitating the evidenc e attacked in the moving p arty’s
papers, (3) by producing ad ditional evidence showing the ex istence of a genuine issue for trial, o r (4) submitting an
affidavit explaining wh y further discov ery is necessary as provided for in Tenn. R. Civ. P. 56.06. See McC arley v. West
Quality F ood Se rv., 960 S.W .2d at 588 ; Byrd v. H all, 847 S.W.2d at 215, n. 6.

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       28-3-104. Personal tort actions. - (a) The following actions shall be commenced
       within one (1) year after the cause of action accrued:

                                               * * *

       (2) 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;

              The issue of when a legal malpractice action accrues was addressed by our Supreme
Court in Carvell v. Bottoms, 900 S.W.2d 23 (Tenn. 1995):

               The issue of when a legal malpractice action accrues for statute of
               limitations purposes is governed by a specific formulation of the
               “discovery rule” applicable to such actions.
                                              * * *
               [T]he “legal malpractice discovery rule” is composed of two distinct
               elements: (1) the plaintiff must suffer . . . an “irremediable injury” as
               a result of the defendant’s negligence; and (2) the plaintiff must have
               known or in the exercise of reasonable diligence should have known
               that this injury was caused by defendant’s negligence.
Carvell v. Bottoms, 900 S.W.2d 23, 28 (Tenn. 1995)

               In this case, Plaintiff alleges irremediable injury as a result of Defendant’s alleged
negligent representation before and during his preliminary hearing. The result of that hearing was
immediately known to Plaintiff. Plaintiff was bound over to the grand jury on September 1, 1995.
Defendant was excused from further representation of Plaintiff on April 18, 1996. Plaintiff filed this
Complaint for legal malpractice on August 29, 1997. We find the Trial Court did not err in
dismissing Plaintiff’s Complaint because the Complaint was filed more than one year from the date
by which Plaintiff knew or should have known that he suffered an irremediable injury as a result of
Defendant’s alleged negligence.

                                          CONCLUSION

                The judgment of the Trial Court is affirmed and this cause is remanded to the Trial
Court for such further proceedings as may be required, if any, consistent with this Opinion, and for
collection of the costs below. The costs on appeal are assessed against the Appellant, Kenneth L.
Storey.



                                                        ___________________________________
                                                        D. MICHAEL SWINEY, JUDGE


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