                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                October 16, 2013 Session

                       KAREN RENAE ALEO v. JOE WEYANT

                Appeal from the Circuit Court for Montgomery County
                  No. MCCCCVCT101126           Tom E. Gray, Judge


               No. M2013-00355-COA-R3-CV - Filed December 12, 2013


Client sued her former attorney for legal malpractice, breach of contract, and negligent
infliction of emotional distress arising from the attorney’s failure to include in the marital
dissolution agreement, prepared for the client and incorporated into Final Divorce Decree,
provisions that would permit the client to receive one-half of her husband’s military pension
and to be listed as the beneficiary of his Survivor Benefit Plan following their divorce. The
trial court granted summary judgment to the attorney on the grounds that the statute of
limitations had passed on the malpractice and the breach of contract claims and that the
evidence did not support a finding of serious mental injury sufficient to support the negligent
infliction of emotional distress claim; client appeals. Finding no error, we affirm the
judgment of the trial court.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,
M. S., P. J., and F RANK G. C LEMENT, J., joined.

Peter M. Napolitano, Clarksville, Tennessee, for the appellant, Karen Renae Aleo.

Thomas F. Mink, II and Charles M. Duke, Nashville, Tennessee, for the appellee, Joe
Weyant.

                                         OPINION

       This appeal arises out of a legal malpractice action filed by Karen Aleo against
Attorney Joseph Weyant arising from Attorney Weyant’s handling of a divorce between Ms.
Aleo and her former husband, Michael James Aleo. On June 1, 2010, Ms. Aleo filed a
complaint alleging that Attorney Weyant had failed to include provisions in the marital
dissolution agreement which was incorporated into the Final Decree of Divorce specifying
that she would receive fifty percent of her former husband’s military pension for the rest of
her life and that she would be named as her former husband’s beneficiary under his Survivor
Benefit Plan; she asserted that, as a result of this failure, she would not receive the benefits
as she and her former husband had agreed. The complaint alleged that the failure to include
these provisions constituted professional negligence, breach of contract, and negligent
infliction of emotional distress. Attorney Weyant answered the complaint on September 9
generally denying the allegations and asserting five affirmative defenses.1

         Attorney Weyant filed a motion for summary judgment on October 24, 2012,
supported by a memorandum in support of the motion, a statement of undisputed material
facts, and the depositions of Ms. Aleo, Attorney Peter Napolitano, and himself. Ms. Aleo
filed a response opposing the motion, which response included her “Statement of Undisputed
and Disputed Material Facts.” After argument, the court entered an order granting the
motion, stating:

        [I]t is the Court’s opinion that, based upon the date of discovery of damage to
        the plaintiff and Section 28-3-104 of the Tennessee Code Annotated, the
        statute of limitations for bringing an action against the defendant, Joe Weyant,
        based upon professional negligence and/or breach of contract has expired, and
        the Motion for Summary Judgment presently pending should be granted on
        behalf of the movant, Joe Weyant.

        The Court is further of the opinion that, based upon the entire record,
        particularly the deposition testimony of the plaintiff, Karen Aleo, there is no
        evidence of any serious mental injury to the plaintiff, Karen Aleo, and,
        therefore, an essential element of the tort of negligent infliction of emotional
        distress is missing; therefore, the Motion for Summary judgment filed on
        behalf of the defendant, Joe Weyant, as to negligent infliction of emotional
        distress is granted.

      Ms. Aleo appeals, contending that the trial court erred in granting summary judgment
because of its “failure to properly apply the ‘discovery rule’” and its failure to consider and



        1
           The affirmative defenses were: (1) that the action was barred by the statute of limitations at Tenn.
Code Ann. § 28-3-104(a) (2); (2) failure to state a claim upon which relief can be granted, Tenn. R. Civ. P.
12.02 (6); (3) comparative fault of Ms. Aleo and her former husband, Michael James Aleo; (4) failure to join
Mr. Aleo as a party; and (5) untimeliness of the suit because all potential remedies in the underlying divorce
action had not been exhausted. He amended his answer on April 19, 2011 to include the additional
affirmative defense of comparative fault of Attorney Peter Napolitano, who began assisting Ms. Aleo in
October 2008 and filed the instant suit on her behalf.

                                                     -2-
apply the doctrines of fraudulent concealment and equitable estoppel; she also complains that
the court erred in dismissing her claim for negligent infliction of emotional distress.

                                  STANDARD OF REVIEW

        Summary judgment is an appropriate vehicle for resolving a case where a party can
show that “there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04; see also Tenn. Code Ann.
§ 20-16-101.2 A party seeking summary judgment may make such a showing by either: (1)
affirmatively negating an essential element of the non-moving party’s claim; or (2) showing
that the non-moving party will not be able to prove an essential element at trial. Hannan v.
Alltel Publ’g Co., 270 S.W.3d 1, 8–9 (Tenn. 2008). If the moving party’s motion is properly
supported, “[t]he burden of production then shifts to the nonmoving party to show that a
genuine issue of material fact exists.” Id. at 5 (citing Byrd v. Hall, 847 S.W.2d 208,
215(Tenn. 1993)). The non-moving party may accomplish this by:

       (1) pointing to evidence establishing material factual disputes that were
       overlooked or ignored by the moving party; (2) rehabilitating the evidence
       attacked by the moving party; (3) producing additional evidence establishing
       the existence of a genuine issue for the trial; or (4) submitting an affidavit
       explaining the necessity for further discovery pursuant to Tenn. R. Civ. P. Rule
       56.06.

Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008) (citations omitted).

       A trial court’s decision on a motion for summary judgment enjoys no presumption of
correctness on appeal. Draper v. Westerfield, 181 S.W.3d 283, 288 (Tenn. 2005). We
review the summary judgment decision as a question of law. Finister v. Humboldt Gen.
Hosp., Inc., 970 S.W.2d 435, 437 (Tenn. 1998). Therefore we review the record de novo and
make a fresh determination of whether the requirements of Tenn. R. Civ. P. 56 have been
met. Eadie v. Complete Co., Inc., 142 S.W.3d 288, 291 (Tenn. 2004). We consider the
evidence presented at the summary judgment stage in the light most favorable to the
non-moving party, and afford that party all reasonable inferences. Draper, 181 S.W.3d at
288. “If there is a dispute as to any material fact or any doubt as to the conclusions to be
drawn from that fact, the motion must be denied.” Byrd, 847 S.W.2d at 215.




       2
          Tenn. Code Ann. § 20-16-101, applicable to summary judgments, was enacted by 2011 Tenn. Pub.
Acts. Ch. 498, became effective July 1, 2011 and is applicable to cases filed on or after that date.

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                                              DISCUSSION

A. S TATUTE OF L IMITATIONS

        The statue of limitations for legal malpractice, whether grounded in tort or contract,
is one year from the time the action accrues. Tenn. Code Ann. § 28-3-104 (a) (2). As noted
in John Kohl & Co. v. Dearborn & Ewing:

        When the cause of action accrues is determined by applying the discovery rule.
        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.
        Shadrick v. Coker, 963 S.W.2d 726, 733 (Tenn.1998); Stanbury v. Bacardi,
        953 S.W.2d 671, 677 (Tenn.1997).

John Kohl & Co. P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998). The
knowledge component of the discovery rule can be established by evidence showing that the
plaintiff actually knew that she had suffered an injury or if the plaintiff became aware of facts
sufficient to put a reasonable person on notice that an injury had been sustained as a result
of the defendant’s conduct. Carvell v. Bottoms, 900 S.W.2d 23, 29 (Tenn. 1995).3

       The statement of undisputed facts filed in support of the motion included the
following facts pertinent to Ms. Aleo’s learning that she suffered a loss:

        3. On or about June 16, 2008, a Divorce Decree was entered in the Circuit
        Court for Montgomery County, Tennessee, signed by Judge Michael R. Jones,
        which included the Marital Dissolution Agreement and a Permanent Parenting
        Plan.

        4. Ms. Aleo advised Joe Weyant that the Divorce Decree and/or Marital
        Dissolution Agreement were incorrect, because it/they failed to dispose of the
        military retirement of Mr. Aleo, which was a marital asset. This discussion
        occurred in close proximity to the time when the Divorce Decree, and
        incorporated Marital Dissolution Agreement, were entered on the Court’s
        minutes.


        3
           An actual injury occurs when there is a loss of a legal right, remedy, or interest, or the imposition
of a liability. John Kohl & Co., 977 S.W.2d at 532. That Ms. Aleo suffered a loss is not at issue in this
appeal.


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       5. On the 27th day of June 2008, Ms. Aleo went to the office of the staff Judge
       Advocate and was advised thay she would not get a portion of the military retirement
       because the decree was silent as to that asset.

       6. During the month of October 2008, Ms. Aleo spoke to Peter Napolitano about this
       matter, and her inability to obtain her portion of Mr. Aleo’s military benefits.

       19. Ms. Aleo first realized she had been injured and/or damaged by the actions or
       omissions of Joe Weyant on or about June 27, 2008.

       20. Ms. Aleo realized she had been injured by the acts or omissions of Joe Weyant
       when she visited with the Judge Advocate General and was advised she could not
       obtain retirements benefits from Mr. Aleo because of the lack of appropriate language
       in the Divorce Decree, and this meeting occurred on June 27, 2008.

       Ms. Aleo’s deposition included the following testimony relating to the date that she
learned of her loss:

       Q: So you went to see the Judge Advocate on June 27, 2008.
             A: Yes.

       Q: What questions did you have for them?
             A: Just to see if there was anything they could do for me, as far as
       maybe if I go to the Defense Department with the retirement, with the Divorce
       Decree, if they would somehow help me get the retirement pay.
             But, again, the response was they didn’t have anything to do with it
       anymore just because my ex-husband was out of the service. He was a civilian

       Q: Was it at that time that you knew that you had suffered a loss as a result of
       this?
              A: Well yeah, I kind of knew before that. Just - - because nothing was
       being done. Nothing was being filed. Nothing was being amended.

In addition, Attorney Weyant’s deposition included the following pertinent testimony:

               Q. Did Ms. Aleo - - do you remember when she first came to you to
       alert you to her concerns, if any, about the absence of that in the MDA and the
       final decree?
               A. Yes, I do.
               ***

                                             -5-
                Q. Was it before of after you filed the MDA with the Court and the final
        decree?
                A. As I recall, it was after.
                ***
                Q. What do you recall, if anything, about what she - - her concern that
        she expressed? What did she say to you?
                A. Well, my recollection is that she came to me probably within a
        month after the entry of the final decree, maybe even less, and told me, “They
        won’t work with this out at Fort Campbell. This is not the pertinent language
        that is required.”

        Q. And what did you tell her?
        A. I told her, “Well, then we need to get down to fixing this and I’ll, you
        know, make it right. And I won’t charge you anything extra, and I’ll try to talk
        to Mr. Aleo.

       The factual statements and testimony were sufficient to establish the affirmative
defense that the action was barred by the statute of limitations at Tenn. Code Ann. § 28-3-
104(a) (2) because it was not filed within one year of Ms. Aleo’s learning that she would not
receive the pension benefits, thereby negating an essential element of Ms. Aleo’s claim. See
Hannan, 270 S.W.3d at 5.4 Ms. Aleo was, consequently, required to produce evidence
establishing a genuine issue of material fact relative to the date she discovered she had been
injured. Id.

        The statement filed by Ms. Aleo in response to the motion and supporting materials
responded to specific statements in Attorney Weyant’s statement and asserted eleven
additional “disputed material facts.” We have reviewed her response and nothing contained
therein disputes the portions of Attorney Weyant’s statement of material facts or the
deposition testimony cited above establishing that she learned of her loss on June 27, 2008.
Rather, the “disputed material facts” are largely argumentative and/or conclusory statements
in support of her contention that Attorney Weyant committed legal malpractice when he
failed to file a motion to set aside the final judgment pursuant to Tenn. R. Civ. P. 60.02.
Having failed to create a genuine issue of fact relative to the date she discovered her injury,
the affirmative defense was established and the grant of summary judgment on this issue was



       4
          “To meet its burden of production and shift the burden to the nonmoving party, the moving party
must either affirmatively negate an essential element of the nonmoving party's claim or establish an
affirmative defense.” Hannan, 270 S.W.3d at 5 (citing Byrd v. Hall, 847 S.W.2d 208, at 215 n.5 (Tenn.
1993)) (emphasis added).

                                                  -6-
proper. See Cherry v. Williams, 36 S.W.3d 78 (Tenn. Ct. App. 2000)5 ; Tenn. R. Civ. P.
56.04.

       Ms. Aleo asserts that the statute of limitations should not be measured from June 27,
2008 because she only received “inquiry notice” from the JAG officials that she would not
receive the pay as she had negotiated with Mr. Aleo, and that Attorney Weyant’s statement
to her that he would “fix it” was an “admitted reassurance by [Attorney Weyant that]
reasonably removed even an ‘inquiry notice’ of [Ms. Aleo].” Ms. Aleo also contends that
Attorney Weyant concealed her loss from her by promising to file a motion pursuant to Tenn.
R. Civ. P. 60.02 in 2008 and continuing to make this promise as late as February or March
of 2009; consequently, she asserts that she did not discover her loss until June 2010, when
she learned that the time to file the Rule 60 motion had expired. These contentions are
without merit.

        We do not understand Ms. Aleo’s characterization of “inquiry notice.” In a
malpractice action, the critical inquiry for statute of limitations purposes is when the plaintiff
discovered her injury; that is the date at which the cause of action accrues. John Kohl & Co.
P.C., 977 S.W.2d at 532; Spar Gas, Inc. v. McCune, 908 S.W.2d 400, 403–404 (Tenn. Ct.
App. 1995). The record is clear that she learned of her injury on June 27, 2008 and that she
informed Mr. Weyant of the loss shortly thereafter. As noted in Spar Gas, Inc., “a plaintiff
cannot be permitted to wait until he knows all of the injurious effects or consequences of an
actionable wrong before he brings suit on that wrong.” Spar Gas, Inc., 908 S.W.2d at 403.
Any representation Attorney Weyant made to Ms. Aleo that he would “fix it” by filing a Rule
60 motion was insufficient to operate to toll the statute of limitations. The law is clear that
it is the date a plaintiff learns of the injury that determines the start date for statute of
limitations purposes, not the date that the injury is quantified.

        Lastly, Ms. Aleo asserts that the doctrine of equitable estoppel should be applied to
this case to prevent the running of the statute of limitations because Attorney Weyant “misled
her from the outset in 2008 all the way through June 2010, preventing her from recognizing
her injury which he promised to ‘fix’ and ‘make it right.’” In Redwing v. Catholic Bishop
for Diocese of Memphis our Supreme Court discussed equitable estoppel, stating:

        In the context of a defense predicated on a statute of limitations, the doctrine
        of equitable estoppel tolls the running of the statute of limitations when the


        5
          “To be entitled to summary judgment, the moving party must affirmatively negate an essential
element of the non-moving party’s claim or establish an affirmative defense that conclusively defeats the
non-moving party’s claim.” Cherry v. Williams, 36 S.W.3d 78, 82–83 (Tenn. Ct. App. 2000).


                                                  -7-
        defendant has misled the plaintiff into failing to file suit within the statutory
        limitations period. Fahrner v. SW Mfg., Inc., 48 S.W.3d at 145; Ingram v.
        Earthman, 993 S.W.2d 611, 633 (Tenn. Ct. App. 1998). When the doctrine of
        equitable estoppel is applicable, it prevents a defendant from asserting what
        could be an otherwise valid statute of limitations defense. Hardcastle v.
        Harris, 170 S.W.3d 67, 84 (Tenn. Ct. App. 2004). The party invoking the
        doctrine of equitable estoppel has the burden of proof. Hardcastle v. Harris,
        170 S.W.3d at 85. Thus, whenever a defendant has made out a prima facie
        statute of limitations defense, the plaintiff must demonstrate that the defendant
        induced him or her to put off filing suit by identifying specific promises,
        inducements, suggestions, representations, assurances, or other similar conduct
        by the defendant that the defendant knew, or reasonably should have known,
        would induce the plaintiff to delay filing suit. Fahrner v. SW Mfg., Inc., 48
        S.W.3d at 145; Hardcastle v. Harris, 170 S.W.3d at 85.

Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 460 (Tenn. 2012).
This court in Hardcastle noted that “[e]vidence of vague statements or ambiguous behavior
by a defendant will not carry the day for a plaintiff asserting equitable estoppel.” Hardcastle,
170 S.W.3d at 85.

       Ms. Aleo relies on the statements made by Attorney Weyant, that he would “fix it” or
“make it right”, to meet her burden to establish that she was induced to put off filing her suit.
The statements relied upon by Ms. Aleo, however, do not constitute specific promises or
assurances that would induce Ms. Aleo to delay filing a malpractice action; rather, they relate
to efforts to change the final decree.6 The record is devoid of any evidence that Attorney
Weyant induced Ms. Aleo not to file suit against him and that the doctrine of equitable
estoppel should apply to prevent the statute of limitations from running.

B. N EGLIGENT INFLICTION OF E MOTIONAL D ISTRESS

        To prove a claim of negligent infliction of emotional distress, a plaintiff must prove:
(1) the defendant owed the plaintiff a duty of care; (2) defendant breached the breach of duty
of care; (3) the plaintiff suffered an injury or loss; (4) causation; and (5) that plaintiff

        6
           Ms. Aleo acknowledges as being undisputed several facts which show that Attorney Napolitano
took actions beginning in October 2008 to assist her in correcting the final decree, including preparing an
affidavit for Attorney Weyant to sign in support of a Rule 60 motion, meeting with Mr. Aleo in an effort to
assist him in signing a new marital dissolution agreement, and exchanging correspondence and negotiating
with Mr. Aleo’s counsel relative to the retirement benefits. These facts show that efforts were being made
to correct the final decree and run counter to a determination that Attorney Weyant misled her with respect
to efforts he was taking to amend the final decree.

                                                   -8-
suffered a serious or emotional injury as a result of the defendant’s conduct. Rogers v.
Louisville Land Co., 367 S.W.3d 196, 206 (Tenn.2012).7 At issue in this appeal is whether
the record supports the trial court’s holding that there was no evidence that Ms. Aleo suffered
a serious mental injury as a result of Attorney Weyant’s conduct.

       Attorney Weyant’s statement of undisputed facts included the following, relative to
his assertion that Ms. Aleo did not suffer a serious mental injury:

        21. Ms. Aleo has not sought the services of a mental health professional as a
        result of her divorce.

        22. Ms. Aleo has not been prescribed or taken any medication for depression
        or anxiety as a result of her divorce or any situation related thereto.

Ms. Aleo’s deposition testimony regarding serious mental injury was as follows:

        Q. Are you presently under the care of any psychologist or psychiatrist?
              A. No, sir.

        Q. Have you been under the care of a psychologist or psychiatrist since
        February 2008?
              A. No.

        7
           The Supreme Court in Rogers provided a non-exhaustive list of factors to support a showing that
the plaintiff has suffered a serious mental injury:

        (1) Evidence of physiological manifestations of emotional distress, including but not limited
        to nausea, vomiting, headaches, severe weight loss or gain, and the like;
        (2) Evidence of psychological manifestations of emotional distress, including but not limited
        to sleeplessness, depression, anxiety, crying spells or emotional outbursts, nightmares, drug
        and/or alcohol abuse, and unpleasant mental reactions such as fright, horror, grief, shame,
        humiliation, embarrassment, anger, chagrin, disappointment, and worry;
        (3) Evidence that the plaintiff sought medical treatment, was diagnosed with a medical or
        psychiatric disorder such as post-traumatic stress disorder, clinical depression, traumatically
        induced neurosis or psychosis, or phobia, and/or was prescribed medication;
        (4) Evidence regarding the duration and intensity of the claimant's physiological symptoms,
        psychological symptoms, and medical treatment;
        (5) Other evidence that the defendant's conduct caused the plaintiff to suffer significant
        impairment in his or her daily functioning; and
        (6) In certain instances, the extreme and outrageous character of the defendant's conduct is
        itself important evidence of serious mental injury.

Rogers, 367 S.W.3d at 209-10.

                                                     -9-
       ***
       Q. Have you ever taken any antidepressants?
             A. Yes.

       Q. Who is prescribed those?
            A. It was like maybe 10 years ago, so it’s –it was at the Blanchfield
            Army Hospital.

       Q. You’re not presently taking any?
             A. No.

       Q. You haven’t since - -
             A. I felt they weren’t doing any good, so I didn’t take them.

       Q. You haven’t taken any since February of 2008.
             A. No.

       This evidence was sufficient to negate an essential element of Ms. Aleo’s claim, i.e.,
that she suffered a serious mental injury due to the actions of Attorney Weyant, thereby
shifting the burden to her to produce evidence establishing a genuine issue of material fact
that she suffered a serious mental injury. See Hannan, 270 S.W.3d at 5.

       In her response, Ms. Aleo stated that facts 21 and 22 from Attorney Weyant’s
statement of material facts, quoted above, were undisputed; she did not address the testimony
from her deposition and did not assert any additional disputed fact relative to any element of
her claim for negligent infliction of emotional distress. Having failed to create a genuine
issue of material fact that she suffered a severe mental injury, summary judgment was proper
on that claim.

                                      CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                                    ________________________________
                                                    RICHARD H. DINKINS, JUDGE




                                             -10-
