Janice Riddle v. Keith Carlton

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 26, 2012

JANICE RIDDLE v. KEITH CARLTON

Direct Appeal from the Circuit Court for Shelby County

No. CT-001065-II Kay Spalding Robilio, Judge

No. W2011-02145-COA-R3-CV - Filed May 31, 2012

Former client filed a pro se complaint for legal malpractice against her former attorney. She

had previously filed a complaint against the attorney with the Tennessee Board of

Professional Responsibility, and that matter had been resolved in the attorney’s favor nearly

two years before she filed the malpractice complaint. The trial court dismissed the complaint

for malpractice, finding it barred by the one-year statute of limitations for such claims. The

former client appealed. We affirm.

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

Remanded

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,

J., and H OLLY M. K IRBY, J., joined.

Janice Riddle, Memphis, Tennessee, pro se

William B. Walk, Jr., Memphis, Tennessee, for the appellee, Keith S. Carlton

OPINION

I. F ACTS & P ROCEDURAL H ISTORY

On March 4, 2011, Janice Riddle (“Plaintiff”) filed a pro se complaint for legal

malpractice against her former attorney, Keith S. Carlton (“Attorney Carlton”). According

to her complaint, she had suffered an injury at her place of employment in April 2004, and

she retained Attorney Carlton in February 2005 to represent her in the context of worker’s

compensation. The complaint further states that on March 19, 2007, Attorney Carlton “stated

to have filed a Complaint for Workman’s Compensation benefits (unbeknown to Plaintiff)”

in circuit court. Thereafter, according to Plaintiff, she terminated Attorney Carlton due to

his failure to communicate with her regarding the status, progress, and activity in her case.

Her complaint alleges that there was no “positive action to enhance her cause” from February

2004 to March 2009. According to Plaintiff’s complaint, on March 10, 2010, she retained

new counsel and took a voluntary nonsuit in the worker’s compensation suit filed by

Attorney Carlton. Her new attorney apparently re-filed the matter in chancery court, because

her complaint states that her new attorney filed a voluntary nonsuit in chancery court on July

23, 2010.

As for the allegations of legal malpractice, Plaintiff alleged that Attorney Carlton was

negligent in failing to file the original complaint for worker’s compensation benefits in a

timely manner. She also alleged that when she informed Attorney Carlton that worker’s

compensation doctors had misdiagnosed her condition, he falsely stated that her case was

progressing, which denied her an opportunity to pursue a medical malpractice claim. She

alleged that Attorney Carlton failed to advise her of his “ineptiness (sic) in any attempt to

resolve this issue in an appropriate and timely manner,” and he “concealed from [her] any

options available to her to redress her chief complaint – the physical condition of her leg.”

Plaintiff alleged that Attorney Carlton’s failure to inform her of “the true status of her case”

was intentional, fraudulent, malicious, or reckless, entitling her to compensatory and punitive

damages.

Attorney Carlton filed a motion to dismiss the legal malpractice complaint, alleging

that it was clearly time-barred pursuant to the one-year statute of limitations for legal

malpractice claims, set forth in Tennessee Code Annotated section 28-3-104(a)(2). He

stated in his response that Plaintiff terminated his representation of her on January 22, 2009.

He also stated that she filed an ethics complaint against him on March 9, 2009, which was

summarily dismissed on November 9, 2009. He attached to his motion a November 6, 2009

letter from the Board of Responsibility which stated that Plaintiff’s complaint against him

had been dismissed. Thus, Attorney Carlton argued that Plaintiff’s March 4, 2011 complaint

for legal malpractice came too late.

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On August 29, 2011, the trial court granted Attorney Carlton’s motion to dismiss

“because (1) Plaintiff failed to file a response to the Motion or appear at the hearing on the

Motion; and (2) the Plaintiff’s legal malpractice claim is barred by the one (1) year statute

of limitations[.]” Plaintiff timely filed a notice of appeal.

II. I SSUES P RESENTED

Plaintiff raises the following issues on appeal:

1. Whether the trial court erred in dismissing the complaint on the basis of the statute of

limitations; and

2. Whether the trial court erred in dismissing the complaint because Plaintiff failed to

file a response to the motion to dismiss and failed to appear at the hearing.

For the following reasons, we affirm the decision of the circuit court.

III. S TANDARD OF R EVIEW

Whether a claim is barred by the applicable statute of limitations is question of law,

which we review de novo with no presumption of correctness. Willis v. Shelby County, No.

W2008-01487-COA-R3-CV, 2009 WL 1579248, at *2 (Tenn. Ct. App. Jun. 8, 2009) (citing

Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn. 2007)).

Because Attorney Carlton filed a motion to dismiss along with matters outside the

pleadings, we must, upon considering the matters outside the pleadings, review the motion

as a motion for summary judgment pursuant to Tennessee Rule of Civil Procedure 56.

Howell v. Claiborne & Hughes Health Ctr., No. M2009-01683-COA-R3-CV, 2010 WL

2539651, at *11 (Tenn. Ct. App. Jun. 24, 2010) (citing Tenn. R. Civ. P. 12.02). Under the

summary judgment standard, a defendant asserting an affirmative defense shifts the burden

of production to the nonmoving party by alleging undisputed facts that show the existence

of the affirmative defense. Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 9 n.6 (Tenn. 2008).

IV. D ISCUSSION

The statute of limitations for legal malpractice claims is one year from the time the

cause of action accrues. Tenn. Code Ann. § 28-3-104(a)(2). When a cause of action accrues

is determined by the discovery rule. John Kohl & Co., P.C. v. Dearborn & Ewing, 977

S.W.2d 528, 532 (Tenn. 1998). Under the discovery 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.” Id.

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(citing Shadrick v. Coker, 963 S.W.2d 726, 733 (Tenn. 1998); Stanbury v. Bacardi, 953

S.W.2d 671, 677 (Tenn. 1997)). In legal malpractice cases, the discovery rule is composed

of two elements: (1) the plaintiff must suffer “legally cognizable damage,” meaning an actual

injury, as a result of the defendant's wrongful or negligent conduct, and (2) the plaintiff must

have known, or in the exercise of reasonable diligence should have known, that this injury

was caused by the defendant's wrongful or negligent conduct. Id.

An actual injury may take the form of the plaintiff being forced to take some action

or otherwise suffer “some actual inconvenience,” such as incurring an expense, as a result

of the defendant's negligent or wrongful act. Kohl, 977 S.W.2d at 532. When some injury

is known, a plaintiff may not delay filing suit until all the injurious effects or consequences

of the alleged wrong are actually known to the plaintiff. Id. at 533. When any damages

become apparent, the statute begins to run even though the amount may be small in

comparison to the amount of damages eventually suffered. Denley v. Smith, Shelby Law No.

48, 1989 WL 738, at *4 (Tenn. Ct. App. W.S. Jan. 9, 1989). Allowing a plaintiff to wait

until all the injurious effects and consequences are known would defeat the rationale for the

existence of statutes of limitations, which is to avoid the uncertainties and burdens inherent

in pursuing and defending stale claims. Kohl, 977 S.W.2d at 533.

“The knowledge component of the discovery rule may be established by evidence of

actual or constructive knowledge of the injury.” Id. at 532 (citing Carvell v. Bottoms, 900

S.W.2d 23, 29 (Tenn. 1995)). Actual knowledge exists where the defendant admits to having

committed malpractice, or the plaintiff is informed by another attorney of the malpractice.

Id. However, the Tennessee Supreme Court has rejected the notion that a client must have

been advised by a professional that malpractice has occurred in order to trigger the statute

of limitations. Hartman v. Rogers, 174 S.W.3d 170, 173 (Tenn. Ct. App. 2005) (citing

Carvell, 900 S.W.2d at 28). Under the theory of constructive knowledge, the statute begins

to run whenever the plaintiff becomes aware or reasonably should have become aware of

facts sufficient to put a reasonable person on notice that an injury has been sustained as a

result of the defendant's negligent or wrongful conduct. Kohl, 977 S.W.2d at 532. Courts

have stressed that there is no requirement that the plaintiff actually know the specific type

of legal claim he or she has, or that the injury constituted a breach of the appropriate legal

standard. Id. (citing Shadrick, 963 S.W.2d at 733). Instead, “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. (quoting Carvell,

900 S.W.2d at 29). It is knowledge of facts sufficient to put a plaintiff on notice that “an

injury has been sustained” that is crucial. Id. “Where some injury has occurred and is known

to the plaintiff, the fact that the plaintiff is not fully aware of the entire nature and extent of

the injury will not toll the statute of limitations.” Rayford v. Leffler, 953 S.W.2d 204, 207

(Tenn. Ct. App. 1997). “‘[T]he discovery rule was not meant to allow a party to delay filing

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his claim until after he has completed the process of discovering all the factors that affect its

merits.’” Burk v. RHA/Sullivan, Inc., 220 S.W.3d 896, 902 (Tenn. Ct. App. 2006) (quoting

Steele v. Tenn. Jaycees, Inc., No. 01A01-9505-CH00214, 1995 WL 623067, at *2 (Tenn. Ct.

App. M.S. Oct. 25, 1995)).

To recap, Plaintiff’s complaint states that she retained Attorney Carlton in February

2005, that he filed a complaint on her behalf on March 19, 2007, and that she terminated him

thereafter because of his failure to keep her informed about the status, progress, and activity

in her case. Plaintiff filed a complaint against Attorney Carlton with the Board of

Professional Responsibility, and it was resolved in his favor on November 9, 2009. Plaintiff

retained another attorney on March 10, 2010, and she filed this lawsuit against Attorney

Carlton on March 4, 2011. The precise nature of the injury that Plaintiff claims to have

suffered as a result of Attorney Carlton’s actions is it a bit unclear,1 as her complaint alleged

that Attorney Carlton failed to file the complaint in a timely manner, failed to keep her

informed about activity and relevant information in the case, and made false statements to

her about the case’s progress. However, it is clear from the undisputed facts that Plaintiff

believed she had suffered an injury due to the wrongful conduct of Attorney Carlton prior

to November 9, 2009, because by that time, she had terminated his representation of her and

filed a complaint against him with the Board of Professional Responsibility. Even assuming

for the sake of argument that Plaintiff was not aware that “malpractice” had occurred at that

time, such knowledge was not necessary in order to trigger the statute of limitations. As

noted above, “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.” Honeycutt v. Wilkes, McCullough & Wagner, No. W2007-00185-

COA-R3-CV, 2007 WL 2200285, at *8 (Tenn. Ct. App. Aug. 2, 2007) (citing Kohl, 977

S.W.2d at 532). Moreover, “[w]here some injury has occurred and is known to the plaintiff,

the fact that the plaintiff is not fully aware of the entire nature and extent of the injury will

not toll the statute of limitations.” Id.; see also Lufkin v. Conner, 338 S.W.3d 499, 505

(Tenn. Ct. App. 2010) (rejecting the argument that continuous acts of malpractice require the

statute of limitations to begin anew with each act).

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In Plaintiff’s pro se brief on appeal, she quotes the allegations from her complaint and then states,

“The upshot of these allegations, which the trial court was obligated to accept as true, is that, on July 23,

2010, Defendant Attorney Keith S. Carlton filed the appellant’s Workman’s Compensation Complaint in the

Chancery Court of Shelby County, Tennessee and that such filing by Carlton was untimely and, thus,

constituted negligence. . . . The date of the act complained of against Carlton is July 23, 2010.” This

statement is perplexing, as the quoted portion of the complaint clearly states that her “new counsel” filed a

voluntary nonsuit in chancery court on that date, and that Attorney Carlton had filed the complaint on her

behalf in circuit court in 2007. Because Plaintiff’s assertion in her brief is not supported by the record, we

find no merit in her argument.

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Because Attorney Carlton established undisputed facts showing the existence of the

affirmative defense of the statute of limitations, and Plaintiff failed to respond to such

showing, Attorney Carlton was entitled to summary judgment. See Hannan, 270 S.W.3d at

9. Plaintiff’s cause of action for legal malpractice accrued more than one year prior to the

filing of this complaint on March 4, 2011, and it is therefore time-barred.

V. C ONCLUSION

For the aforementioned reasons, we affirm the decision of the circuit court and remand

for further proceedings. Costs of this appeal are taxed to the appellant, Janice Riddle, for

which execution may issue if necessary.

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ALAN E. HIGHERS, P.J., W.S.

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