Athena of S.C., LLC v. James F. Macri, Jr.

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 9, 2016 Session

ATHENA OF S.C., LLC ET AL. V. JAMES F. MACRI, JR. ET AL.

Appeal from the Circuit Court for Knox County

No. 2-4-15 Deborah C. Stevens, Judge

No. E2016-00224-COA-R3-CV-FILED-OCTOBER 14, 2016

The plaintiffs sued an attorney for legal malpractice related to the enforcement of two

promissory notes. The plaintiffs purchased these notes, which were secured by property

at a real estate development, from the two other defendants in this lawsuit. During the

purchase of these notes, the sellers were represented by the defendant-attorney in this

lawsuit. Subsequently, the plaintiffs hired the same attorney to help them collect the

amounts due under the notes from the real estate developer. The attorney drafted a

complaint and an agreed judgment for each of the promissory notes and filed these

documents in the Circuit Court for Knox County. The circuit court entered the agreed

judgments the same day they were filed. When the plaintiffs attempted to sell the

property that secured the promissory notes, the real estate developer‟s former business

partner filed a motion for an injunction in federal court. The federal district court issued

two injunction orders, one in May 2012 and one in August 2012. Both orders were based

on findings that the transaction by which the plaintiffs acquired the promissory notes was

likely fraudulent. On January 6, 2014, the parties who sold the notes to plaintiffs filed an

affidavit that, according to the plaintiffs, admitted that the sale of the notes to plaintiffs

was fraudulent. On January 6, 2015, the plaintiffs filed this action against their former

attorney and the parties that sold them the promissory notes. The attorney filed a motion

to dismiss under Tenn. R. Civ. P. 12.02(6), arguing that the plaintiffs‟ claim was time

barred because it accrued in August 2012. The trial court granted this motion because it

determined that the plaintiffs knew they had suffered an injury when the district court

issued the second injunction order in August 2012. We affirm.

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

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which D.

MICHAEL SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.

Mark E. Brown, Knoxville, Tennessee, for the appellants, Athena of S.C., LLC and Ted

Doukas.

Darryl G. Lowe, Knoxville, Tennessee, for the appellee, Gregory D. Shanks d/b/a Shanks

and Blackstock.

OPINION

The plaintiffs in this action are Ted Doukas and Athena of S.C., LLC (collectively

referred to hereinafter as “Plaintiffs”).1 This appeal arises from the dismissal of their legal

malpractice claim against their former attorney, Gregory D. Shanks.

In 2011, Ted Doukas negotiated an agreement with Tennessee Land and Lakes,

LLC (“TLL”) and James F. Macri, Jr., pursuant to which his limited liability company,

Athena, would acquire two promissory notes that were owned at the time by SunTrust

Bank.2 The notes to be acquired by Athena were secured by a deed of trust covering 120

lots and 11 condominiums in a real estate development called “Rarity Bay.” The debtors

on the notes were two business entities owned by real estate developer Michael Ross.

Pursuant to the agreement, Mr. Doukas and Athena made a down payment of $230,000 to

Mr. Macri and TLL, who then purchased the notes from SunTrust Bank for over

$1,500,000. After acquiring the notes, Mr. Macri and TLL assigned the notes (hereinafter

“Rarity Bay notes”) to Athena in consideration for Plaintiffs‟ payment of the balance of

the purchase price with interest to Mr. Macri and TLL. Gregory D. Shanks, the defendant

in this appeal, was the attorney for Mr. Macri and TLL in each of these transactions.

In the interim, Mr. Macri and TLL acquired for themselves a promissory note

associated with Rarity Enclave, another of Mr. Ross‟s real estate developments. Mr.

Shanks also represented Mr. Macri and TLL in this transaction.

After acquiring the Rarity Bay notes from Mr. Macri and TLL, Plaintiffs hired Mr.

Shanks to help them collect on the notes. As part of this process, Mr. Shanks prepared

two complaints and two agreed judgments, each against Mr. Ross and one of his business

entities. Mr. Shanks filed these complaints and judgments in the Circuit Court for Knox

County on November 30, 2011, and the circuit court entered the agreed judgments that

same day.

During this time, Mr. Ross and many of his companies were defendants in a

lawsuit that Mr. Ross‟s former business partner, Robert T. Stooksbury, Jr., had filed in

the United States Court for the Eastern District of Tennessee. In September 2011, a

federal magistrate judge issued an order recommending that the district judge enter a

1

Mr. Doukas is the owner and principal of Athena of S.C., LLC.

2

Mr. Macri was the owner and principal of Tennessee Land and Lakes, LLC.

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default judgment against Mr. Ross. Stooksbury v. Ross, No. 3:09-CV-498, 2011 WL

5834015, at *7 (E.D. Tenn. Sept. 28, 2011), report and recommendation adopted in part,

rejected in part, No. 3:09-CV-498, 2011 WL 5833878 (E.D. Tenn. Nov. 21, 2011).

Although the district court rejected this part of the magistrate judge‟s recommendation in

November 2011, it later entered a default judgment against Mr. Ross in favor of Mr.

Stooksbury in January 2012. See Stooksbury v. Ross, No. 3:09-CV-498, 2012 WL

262888, at *4 (E.D. Tenn. Jan. 30, 2012).

In May 2012, Plaintiffs published a notice of foreclosure for the 11 condominiums

that secured the Rarity Bay notes. In response, Mr. Stooksbury filed a motion to enjoin

the sale in federal court. Among other things, he asserted that Mr. Ross entered the

agreed judgments with Athena “after the magistrate judge recommended default be

granted in this case, without adequate consideration and for the purpose of defrauding

[Mr. Stooksbury] as a creditor.” See Stooksbury v. Ross, No. 3:09-CV-498, 2012 WL

1933802, at *3 (E.D. Tenn. May 29, 2012). Athena made a special appearance in federal

court to oppose Mr. Stooksbury‟s motion. Id. at *4.

On May 29, 2012, the district court entered an order that enjoined the foreclosure

sale until a receiver could be appointed. Id. at *7. In relevant part, the district court‟s

order stated:

The Court also finds [Mr. Stooksbury] has shown that it is likely the

assignment of the Deed of Trust to Athena is fraudulent. While on its face

the Deed of Trust appears legitimate, the Court finds it must consider the

assignment, and the timing of the assignment, in light of the various

transfer of assets from defendants to Athena and other entities controlled by

Mr. Doukas. [Mr. Stooksbury] has submitted multiple documents into the

record that raise a strong inference that defendants are fraudulently

transferring property and assets to Mr. Doukas and the entities he owns,

including Athena. In making this determination, the Court has considered,

among other documents, . . . the agreed judgments filed on the same day as

the complaints on promissory notes and guarantees Athena asserted

against certain defendants in state court . . . .

Id. at *5 (emphasis added).3

In July 2012, Plaintiffs published a notice of foreclosure for the 120 lots that

secured the Rarity Bay notes, and Mr. Stookbury filed a motion to enjoin the sale in

3

In the district court‟s order, the term “Deed of Trust” refers to the document that granted a

security interest in some of the real property in Rarity Bay. See Stooksbury v. Ross, No. 3:09-CV-498,

2012 WL 1933802, at *4 (E.D. Tenn. May 29, 2012).

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federal court. The district court granted Mr. Stooksbury‟s motion and enjoined the sale on

August 1, 2012. The district court stated:

the Court finds [Mr. Stooksbury] has shown that it is likely the proposed

foreclosure of the Rarity Bay Lots relates to the series of transactions and

conveyances the Court found likely to be fraudulent in the [May 29, 2012]

Injunction Order. . . . [Mr. Stooksbury] has submitted the notice of

substitute trustee sale relating to the Rarity Bay Lots which notes that a

deed of trust was assigned by SunTrust Bank to [TLL] on October 6, 2011,

and was subsequently assigned by [TLL] to Athena on November 28,

2011 . . . . While Athena has filed, in support of its response,

documentation relating to these transactions, the Court has previously

considered most of these documents and other related records pertaining to

the transactions between Athena and the judgment debtors [i.e. Mr. Ross

and several of his business entities] in this case and found that the series of

transactions and conveyances raised a strong inference that such

transactions and conveyances were fraudulent.

Stooksbury v. Ross, No. 3:09-CV-498, 2012 WL 12841901, at *4 (E.D. Tenn. Aug. 1,

2012).

On January 6, 2014, Mr. Macri and TLL settled a claim involving the Rarity

Enclave property with the receiver appointed by the district court. As part of the

settlement Mr. Macri submitted an affidavit that, according to Plaintiffs, admitted that the

sale of Rarity Bay notes to Athena was fraudulent.

One year later, on January 6, 2015, Plaintiffs filed this suit against Mr. Macri,

TLL, and Mr. Shanks, asserting claims of fraud and interference with business

relationships against Mr. Macri and TLL and claims of legal malpractice against Mr.

Shanks. Specifically, Plaintiffs alleged that Mr. Shanks had committed legal malpractice

by preparing and entering two agreed judgments that were rendered worthless after Mr.

Macri filed the January 2014 affidavit. In relevant part, the complaint states:

75. As a result of the injunctions, Athena was faced with rising costs

on its collateral including damage to the condominiums and real property

taxes, all while seeing the value of its collateral decrease.

....

93. [Plaintiffs] sue the Defendant Shanks for liability for negligence

in the performance of his professional duties as an attorney retained by

Doukas and Athena. Specifically, [Plaintiffs] allege that Shanks undertook

a duty to represent them according to the applicable standard of care for

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attorneys within the State of Tennessee. [Plaintiffs] allege that Shanks

breached that duty of care by preparing and entering two (2) Agreed

Judgments on behalf of [Plaintiffs], which were the result of the sale of Sun

Trust [sic] notes to [Plaintiffs] from another of Shanks‟ clients Macri and

Tennessee Land. That sale has been conceded by Macri and Tennessee

Land to be fraudulent rending [sic] the Agreed Judgments prepared by

Shanks as worthless and as a result, Shanks has fallen below the applicable

standard of care for an attorney licensed in the State of Tennessee. As a

result [Plaintiffs] have been damaged in the amount of [$7,727,800.13],

representing the total amount of the Agreed Judgments, plus pre-judgment

and post-judgment interest, all of which are the direct and proximate result

of Shanks‟ actions or inactions in their [sic] representation of [Plaintiffs].

Mr. Shanks filed a motion to dismiss Plaintiffs‟ legal malpractice claim under

Tenn. R. Civ. P. 12.02(6), arguing that the claim was barred by the one-year statute of

limitations for legal malpractice claims because it accrued when the federal court entered

the injunction orders in May and August of 2012. The trial court granted this motion and

dismissed the malpractice claim, stating:

[T]here is no question that the Plaintiffs suffered a loss of a legal[ly]

cognizable right when they were enjoined from foreclosing on the eleven

(11) condominiums by the District Court Order of May 23, 2012 and at the

latest, when the District Court enjoined the foreclosure of the Rarity Bay

lots on August 1, 2012. Both of the Orders specifically reflect that the

foreclosures are based on a series of transactions “that appear to be

fraudulent”. . . . For the purpose of the statute of limitations in the subject

Complaint, the Plaintiffs were prevented from foreclosing and according to

their complaint began to suffer damages when the District Court enjoined

the foreclosure in May and August of 2012.

The Plainitff[s] further assert[] that the statute did not run until the

affidavit was signed by Mr. Macri on January 6, 2014 allegedly admitting

that the underlying action was fraudulent. “Fraudulent activity” or

“fraudulent intent” in the [Rarity Bay] notes is exactly what was at issue

when the United States District Court for the Eastern District of Tennessee

at Knoxville issued injunctions in 2012 to stop the impending

foreclosure. . . . For purposes of determining when the Plaintiff[s] had

knowledge of the injury, it is not necessary that the District Court issued a

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final judgment or issued a ruling finding fraud in the underlying

transaction.[4]

The trial court further found that Mr. Macri‟s affidavit did not admit that there was

fraud related to the sale of the Rarity Bay notes. According to the trial court, “a close

reading” of the affidavit revealed that it was discussing fraud related to the Rarity

Enclave transaction rather than the sale of the Rarity Bay notes.

The trial court certified its order as a final judgment under Tenn. R. Civ. P. 54.02,

and Plaintiffs appealed.

STANDARD OF REVIEW

Filing a motion to dismiss under Tenn. R. Civ. P. 12.02(6) is “an appropriate way

to seek to invoke the statute of limitations as grounds for dismissing a complaint.”

Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 455 n.11 (Tenn.

2012). The review of a trial court‟s decision to grant a motion to dismiss under Tenn. R.

Civ. P. 12.02(6) involves a question of law, which we review de novo with no

presumption of correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 894-95 (Tenn.

2011). A motion to dismiss challenges only the legal sufficiency of the complaint. See id.

at 894; Webb v. Nashville Area Habitat for Humanity, 346 S.W.3d 422, 426 (Tenn.

2011). When considering such a motion, courts must construe the complaint liberally,

presume all its factual allegations to be true, and give the plaintiff the benefit of the

inferences that can reasonably be drawn from the pleaded facts. See Webb, 346 S.W.3d at

426; 421 Corp. v. Metro. Gov’t of Nashville & Davidson Cty., 36 S.W.3d 469, 479 (Tenn.

Ct. App. 2000).

ANALYSIS

Plaintiffs contend that the trial court‟s “close reading” of Mr. Macri‟s affidavit

converted Mr. Shanks‟ motion to a motion for summary judgment and that they should

have been allowed to submit additional evidence. Plaintiffs also argue that their

4

Although the trial court‟s order states that the district court issued the order enjoining the sale of

the 11 condominiums on May 23, 2012, that order was not entered until May 29, 2012. The district court

made an oral ruling on May 23 and entered its written order on May 29. See Stooksbury v. Ross, 2012 WL

1933802, at *1. Additionally, on May 23, 2012, a federal magistrate judge issued an order that, inter alia,

prohibited Mr. Ross and his business entities from concealing, assigning, or removing any money pending

the appointment of a receiver. See Stooksbury v. Ross, No. 3:09-CV-498, 2012 WL 12842528, at *5 (E.D.

Tenn. May 23, 2012). Like the district court judge‟s two injunction orders, the magistrate‟s May 23 order

contained findings that conveyances involving Athena were likely meant to conceal Mr. Ross‟s assets or

remove them “from the reach of [Mr. Stooksbury‟s] judgment.” See id. at *4.

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malpractice claim against Mr. Shanks was timely because it did not accrue until Mr.

Macri filed an affidavit on January 6, 2014. We will address each argument in turn.

I. TREATMENT OF MR. MACRI‟S AFFIDAVIT

A motion to dismiss under Tenn. R. Civ. P. 12.02(6) “shall be treated” as a motion

for summary judgment when “matters outside the pleading are presented to and not

excluded by the court . . . .” See Tenn. R. Civ. P. 12.02. However, exhibits attached to the

pleadings are considered to be part of the pleadings, and a court resolving a motion to

dismiss may consider such exhibits without converting the motion into a motion for

summary judgment. See Ivy v. Tenn. Dept. of Correction, No. M2001-01219-COA-R3-

CV, 2003 WL 22383613, at *3 (Tenn. Ct. App. Oct. 20, 2003). Courts may also consider

matters that the complaint incorporates by reference, items subject to judicial notice,

orders, and matters of public record without converting a motion to dismiss into a motion

for summary judgment. See Indiana State Dist. Council of Laborers v. Brukardt, No.

M2007-02271-COA-R3-CV, 2009 WL 426237, at *8 (Tenn. Ct. App. Feb. 19, 2009)

(quoting Wright and Miller, Federal Practice and Procedure, Civil § 1357, p. 376 (3d ed.

2004)).

Plaintiffs do not contend that the trial court erred by considering Mr. Macri‟s

affidavit, which Plaintiffs themselves attached to the complaint. Instead, Plaintiffs argue

that the trial court was required to consider Mr. Macri‟s affidavit as part of the pleadings,

taking all its allegations as true and construing it liberally in Plaintiff‟s favor. According

to Plaintiffs, the trial court failed to adhere to this standard when it conducted a “close

reading” of the affidavit.

After reviewing the record, it appears that the trial court simply read Mr. Macri‟s

affidavit and accepted it at face value. However, for purposes of this appeal we will

assume that, as Plaintiffs allege, Mr. Macri‟s affidavit does admit that the transaction by

which Plaintiffs acquired the Rarity Bay notes was fraudulent.

II. ACCRUAL OF PLAINTIFFS‟ LEGAL MALPRACTICE CLAIM

Plaintiffs contend that their malpractice claim against Mr. Shanks was timely filed

because it did not accrue until Mr. Shanks filed his affidavit on January 6, 2014.

The statute of limitations in legal malpractice actions is one year from the time the

cause of action accrues. Tenn. Code Ann. § 28-3-104(c)(1). The accrual of a legal

malpractice action is determined by applying the discovery rule. Cardiac Anesthesia

Servs., PLLC v. Jones, 385 S.W.3d 530, 540 (Tenn. Ct. App. 2012) (quoting John Kohl &

Co., P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998)). In this context, the

discovery rule is concerned with two components: an actual injury and knowledge. See

John Kohl & Co., 977 S.W.2d at 532. As the Supreme Court has stated:

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In legal malpractice cases, the discovery rule is composed of two distinct

elements: (1) the plaintiff must suffer legally cognizable damage—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. (citing Carvell v. Bottoms, 900 S.W.2d 23, 28-30 (Tenn. 1995)).

“It is not necessary that the injury become irremediable for purposes of the

limitations period; rather it must be a „legally cognizable‟ or „actual‟ injury.” Hartman v.

Rogers, 174 S.W.3d 170, 173 (Tenn. Ct. App. 2005) (citing Carvell, 900 S.W.2d at 29-

30)). An actual injury occurs “when there is a loss of a legal right, remedy or interest, or

the imposition of a liability.” Cardiac Anesthesia Servs., 385 S.W.3d at 541 (quoting

John Kohl & Co., 977 S.W.2d at 532). “An actual injury may also 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.” Id.

(internal quotation marks omitted).

A plaintiff may have either actual or constructive knowledge of an injury. John

Kohl & Co., 977 S.W.2d at 532. Actual knowledge exists when, for example, “the

defendant admits to having committed malpractice or the plaintiff is informed by another

attorney of the malpractice.” Id. In contrast, constructive knowledge exists “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.” Id. “[T]here 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. at 533 (citing Shadrick v.

Coker, 963 S.W.2d 726, 733 (Tenn. 1998)). Furthermore, plaintiffs may not delay filing

suit until all the injurious effects of the alleged wrong are actually known to them. Id.

(quoting Carvell, 900 S.W.2d at 29).

Before we begin our analysis of the accrual issue, we find it necessary to

acknowledge a dearth of specific factual allegations in the complaint that explain how

Mr. Shanks breached his duty to Plaintiffs or how his breach of a duty caused the agreed

judgments to become worthless. Complaints must contain more than recitations of legal

elements. See Morris Properties, Inc. v. Johnson, No. M2007-00797-COA-R3-CV, 2008

WL 1891434, at *1 (Tenn. Ct. App. Apr. 29, 2008) (quoting Lee v. State Volunteer Mut.

Ins. Co., Inc., No. E2002-03127-COA-R3-CV, 2005 WL 123492, at *10 (Tenn. Ct. App.

Jan. 21, 2005)). Instead, complaints must allege facts that, if true, support the elements of

a cause of action. See id. Failure to do so results in dismissal, even under the liberal

standard used to assess Rule 12 motions to dismiss. See Lee, 2005 WL 123492, at *10-11

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(affirming the dismissal of a claim for tortious interference with a contract because the

complaint contained no factual allegations that supported the elements of breach or

proximate cause); Conley v. State, 141 S.W.3d 591, 597 (Tenn. 2004) (dismissing a claim

for medical malpractice because the plaintiff did not allege any factual details supporting

the alleged malpractice or any facts that would establish a “professional/client”

relationship).

Here, the complaint does not allege that the agreed judgments became worthless

because of an error Mr. Shanks made when he drafted and filed them. The complaint also

does not allege that Mr. Shanks filed the agreed judgments despite his actual or

constructive knowledge that the sale of the Rarity Bay notes was tainted by fraud. The

complaint does allege that Mr. Macri‟s affidavit “rend[ered] the Agreed Judgments

prepared by Shanks as worthless and as a result Shanks has fallen below the applicable

standard of care . . . .” However, nothing in the complaint indicates that Mr. Shanks was

responsible for or had anything to do with the filing of that affidavit. The complaint does

not state that Mr. Shanks drafted or filed Mr. Macri‟s affidavit. Although the complaint

states that Mr. Shanks represented Mr. Macri and TLL during the sale of the Rarity Bay

notes, it does not allege that Mr. Shanks represented Mr. Macri or TLL when they settled

the claim with the receiver. Indeed, the complaint does not even allege that Mr. Shanks

encouraged or advised Mr. Macri to file the January 2014 affidavit.

Plaintiffs‟ reply brief perhaps comes closest to articulating the allegation that is

absent from the complaint. The reply brief states that Mr. Shanks “seeks to use a legal

technicality to avoid the fact that he has advised one client to take some action—

executing an Affidavit—that caused harm to another client.” The complaint itself does

not contain any such allegation, and we cannot supply it ourselves. Chism v. Mid-S.

Milling Co., Inc., 762 S.W.2d 552, 555 (Tenn. 1988) (“When the Court is dealing simply

with allegations of pleadings, . . . the Court is not free to construct additional facts or

allegations.”), superseded by statute on other grounds. Without an allegation similar to

the statement contained in Plaintiffs‟ reply brief, Plaintiffs‟ complaint does very little to

allege facts that support the assertion that Mr. Shanks breached his duty to Plaintiffs or

caused the agreed judgments to become worthless.

The foregoing notwithstanding, our analysis of the accrual issue based on the facts

that the complaint alleges or incorporates by reference is as follows. With respect to Mr.

Shanks, the complaint alleges two relevant injuries. First, paragraph 75 alleges that

Athena suffered injuries including rising costs on the collateral and damage to the

condominiums “[a]s a result of the injunctions . . . .” Second, paragraph 93 alleges that

Mr. Macri‟s sworn statement that the Rarity Bay transaction was fraudulent “rend[ered]

the Agreed Judgments prepared by Shanks as worthless and as a result, Shanks has fallen

below the applicable standard of care . . . .”

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To the extent that Plaintiffs‟ claim against Mr. Shanks is based on the injuries

alleged in paragraph 75, their claim accrued well before January 2014. The injunction

orders were issued in May and August of 2012, and both orders contained findings that

the transaction involving the Rarity Bay notes was likely fraudulent. As the trial court

noted, Plaintiffs knew they had suffered this injury by August 2012 at the latest.

Plaintiffs contend that the injuries alleged in paragraph 75 are irrelevant to their

claim against Mr. Shanks. According to Plaintiffs, the injunction-related injuries cannot

be the basis of their claim against Mr. Shanks because those injuries were not caused by

the breach of a duty that Mr. Shanks owed to them. That is, because Mr. Shanks was not

Plaintiffs‟ attorney during the sale of the Rarity Bay notes, the injuries caused by Mr.

Shanks‟ actions or inactions during that time cannot be the basis of Plaintiffs‟ legal

malpractice claim.

The only other alleged injury that is relevant to Plaintiffs‟ malpractice claim is the

injury alleged in paragraph 93. This injury is Plaintiffs‟ inability to enforce the agreed

judgments entered by the Circuit Court for Knox County. Plaintiffs contend that this

injury did not occur until Mr. Macri filed his affidavit. On appeal, Plaintiffs state their

argument on this point as follows:

It is only when the Plaintiffs learned that the Agreed Judgments

prepared and filed by [Mr. Shanks] became worthless that they suffered

harm and the clock began ticking on their claims. . . . That occurred at the

earliest on January 6, 2014 when [Mr. Shanks‟] other clients Macri and

[TLL] filed an Affidavit as part of settling their dispute with the Federal

Court Receiver which, arguably indicated that the entire transaction

between Macri and [TLL] and Doukas and Athena in which Doukas and

Athena received an assignment of the [Rarity Bay notes], and from which

[Mr. Shanks] prepared the Complaints and Agreed Judgments on behalf of

the Plaintiffs, was fraudulent.

According to Plaintiffs, Mr. Macri‟s sworn statement that the sale of the Rarity

Bay notes was fraudulent caused the agreed judgments to become worthless. If Mr.

Macri‟s affidavit caused the agreed judgments to become worthless because it contained

statements that the Rarity Bay transaction was fraudulent, then the federal district court‟s

orders would have had an identical or similar effect. Both orders contained findings that

the sale of the Rarity Bay notes was likely fraudulent. Because, as Plaintiffs themselves

note, the agreed judgments were based on this sale, findings that the sale was likely

fraudulent would certainly call the agreed judgments into question, make it more difficult

to enforce them, and thus lower their value. Indeed, the May 2012 injunction order

specifically states that the district court considered “the agreed judgments filed on the

same day as the complaints on promissory notes and guarantees Athena asserted against

certain defendants in state court” when it determined that the sale of Rarity Bay notes

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was likely fraudulent. See Stooksbury v. Ross, 2012 WL 1933802, at *5 (emphasis

added).

Mr. Macri‟s affidavit may have provided a stronger indication that Plaintiffs had

suffered an injury regarding the agreed judgments. It may also have increased the

magnitude of Plaintiffs‟ injury or given them notice of additional injurious effects of the

negligence they have alleged in the complaint. However, Plaintiffs cannot delay filing

suit until all the injurious effects of the alleged wrong are actually known to them. John

Kohl & Co., 977 S.W.2d at 533; Shadrick, 963 S.W.2d at 733. As the trial court correctly

noted, fraudulent activity in the sale of the Rarity Bay notes was the subject of both the

district court‟s orders and Mr. Macri‟s affidavit. Information about the fraudulent nature

of the Rarity Bay transaction was available to Plaintiffs in May and August of 2012. If

the disclosure of such information caused the agreed judgments to become worthless,

then Plaintiffs knew or should have known of this injury in August 2012 at the latest.

Therefore, whether Plaintiffs‟ claim is based on the injunction-related injuries or the

injuries associated with the agreed judgments, the claim accrued on August 2012 at the

latest.

For the reasons stated above, we affirm the trial court‟s decision to dismiss the

malpractice claim against Mr. Shanks.

IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs

of appeal assessed against Athena of S.C., LLC and Ted Doukas.

________________________________

FRANK G. CLEMENT, JR., P.J., M.S.

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