Damiean Devon Tolson v. John E. Herbison

08/12/2021

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 1, 2021

DAMIEAN DEVON TOLSON v. JOHN E. HERBISON

Appeal from the Circuit Court for Davidson County

No. 18C1755 Don R. Ash, Senior Judge

___________________________________

No. M2020-01362-COA-R3-CV

___________________________________

Appellant, acting pro se, appeals the trial court’s dismissal of his legal malpractice action

against Appellee, the attorney who represented Appellant in post-conviction matters

related to his criminal case. The trial court held that Appellant’s lawsuit was barred by the

running of the one-year statute of limitations. Tenn. Code Ann § 28-3-104(c)(1).

Discerning no error, we affirm and remand.

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

Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,

C.J., and KRISTI M. DAVIS, J., joined.

Damien Devon Tolson, Wartburg, Tennessee, appellant, pro se.

No brief filed on behalf of appellee, John Edward Herbison.

MEMORANDUM OPINION1

This legal malpractice case arises from Appellee John Edward Herbison’s

representation of Appellant Damien Devon Tolson. Mr. Tolson was convicted of first-

degree murder in Lawrence County. The Court of Criminal Appeals affirmed the

1

Rule 10 of the Court of Appeals of Tennessee provides:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse

or modify the actions of the trial court by memorandum opinion when a formal opinion

would have no precedential value. When a case is decided by memorandum opinion it shall

be designated “MEMORANDUM OPINION”, shall not be published, and shall not be

cited or relied on for any reason in any unrelated case.

conviction in an opinion filed on December 28, 2006, and the Tennessee Supreme Court

denied permission to appeal on April 16, 2007. After proceedings on direct appeal were

concluded, Mr. Tolson retained Mr. Herbison, in or around October 2007, to seek post-

conviction relief on Mr. Tolson’s behalf. Mr. Herbison filed a timely petition for post-

conviction relief, and an evidentiary hearing was held on February 26, 2009. After the trial

court denied Mr. Tolson relief, Mr. Herbison filed an appeal to the Court of Criminal

Appeals, which affirmed the trial court’s decision on July 29, 2010. Thereafter, Mr.

Herbison sought review in the Tennessee Supreme Court, which denied certiorari on

January 14, 2011.

On May 23, 2013, Mr. Tolson filed a complaint against Mr. Herbison with the

Tennessee Board of Professional Responsibility (“the Board”) by completing and

submitting a “Request for Assistance” form. In this form, Mr. Tolson alleged that Mr.

Herbison failed to notify Mr. Tolson of the Tennessee Supreme Court’s denial of certiorari

in January 2011 and also failed to answer Mr. Tolson’s emails and other correspondence.

As a result of Mr. Herbison’s alleged errors, Mr. Tolson asserted that his writ of habeas

corpus was denied as time-barred. The form that Mr. Tolson completed and signed

contains the following disclaimer:

You have a limited time (Statute of limitations) to file a legal malpractice or

other lawsuit. Filing a complaint or Request for Assistance with the Board

will not preserve your legal rights and remedies. You should pursue

independent legal action and seek independent legal advice concerning your

legal matters.

Mr. Herbison responded to the Board complaint by letter of October 22, 2013,

wherein he stated that, “I am confident that I sent Mr. Tolson a copy of the opinion of the

Court of Criminal Appeals,” but admitted that he did “not independently recall whether I

did or did not send [Mr. Tolson] a copy of the order of the Supreme Court denying the

application for permission to appeal.” By letter of March 19, 2014, the Board informed

Messrs. Herbison and Tolson of its decision. The Board found “that a violation(s) of the

Rules of Professional Conduct did occur” and noted that “[a]ppropriate private disciplinary

action has been taken.”

While his complaint was pending with the Board, Mr. Tolson filed his initial legal

malpractice action against Mr. Herbison in the Federal District Court for the Middle

District of Tennessee on October 18, 2013. On October 6, 2016, the Sixth Circuit Court

of Appeals affirmed the district court’s dismissal of the lawsuit.2 Thereafter, on July 9,

2018, Mr. Tolson, acting pro se, filed the instant legal malpractice action against Mr.

2

Our record does not contain any documents from the federal lawsuit. Accordingly, we take this

information from averments made by Mr. Tolson to the Board and in the trial court, and from the findings

set out in the trial court’s order dismissing Mr. Tolson’s lawsuit.

-2-

Herbison in the Circuit Court for Davison County (“trial court”). In his complaint, Mr.

Tolson reiterated the allegations previously made with the Board and requested the trial

court to: (1) issue an injunction against Mr. Herbison; (2) reimburse Mr. Tolson $15,000

in corrective and restorative fees for breach of contract; and (3) reinstate Mr. Tolson’s case.

On September 4, 2020, the trial court dismissed Mr. Tolson’s lawsuit on the ground

that the complaint was time-barred under the applicable one-year statute of limitations.

Tenn. Code Ann. § 28-3-104(c)(1). On September 11, 2020, Mr. Tolson filed a motion

to alter or amend the judgment; the trial court denied the motion by order of October 16,

2020. Mr. Tolson appeals.

Although Mr. Tolson raises several issues for review, the dispositive issue in this appeal

is simply whether the trial court erred in dismissing Mr. Tolson’s legal malpractice action

on the ground that the statute of limitations had run.

Whether a claim is barred by an applicable statute of limitations is a question of law.

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

Truckstops of Am., 915 S.W.2d 420, 424 (Tenn. 1996). We review the trial court’s

resolution of questions of law de novo, with no presumption of correctness. Kelly v. Kelly,

445 S.W.3d 685, 692 (Tenn. 2014); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn.

2013).

Before turning to the issue, we note that Mr. Tolson is proceeding pro se in this appeal.

Courts should consider that many pro se litigants have no legal training and little familiarity

with the judicial system. Garrard v. Tenn. Dep’t of Corr., No. M2013-01525-COA-R3-

CV, 2014 WL 1887298, at *3 (Tenn. Ct. App. May 8, 2014) (internal citations omitted).

Therefore, the courts give pro se litigants, who are untrained in the law, a certain amount

of leeway in drafting their pleadings and briefs. Whitaker v. Whirlpool Corp., 32 S.W.3d

222, 227 (Tenn. Ct. App. 2000); Paehler v. Union Planters Nat’l Bank, Inc., 971 S.W.2d

393, 397 (Tenn. Ct. App. 1997). However, “[p]ro se litigants who invoke the complex and

technical procedures of the courts assume a very heavy burden.” Irvin v. City of

Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1989). While a party who chooses to

represent himself or herself is entitled to the fair and equal treatment of the courts, Hodges

v. Tenn. Att’y Gen., 43 S.W.3d 918, 920 (Tenn. Ct. App. 2000), “[p]ro se litigants are not

. . . entitled to shift the burden of litigating their case to the courts.” Whitaker, 32 S.W.3d

at 227. Instead, pro se litigants are held to the same procedural and substantive standards

to which lawyers must adhere. Diggs v. Lasalle Nat. Bank Assoc., 387 S.W. 3d 559, 563

(Tenn. Ct. App. 2012); Brown v. Christian Bros. University, No. W2012-01336-COA-R3-

CV, 2013 WL 3982137, at *3 (Tenn. Ct. App. Aug. 5, 2013), perm. app. denied (Tenn.

Jan. 15, 2014).

-3-

The applicable statute of limitations for legal malpractice claims is found at Tennessee

Code Annotated section 28-3-104(c), to-wit:

(c)(1) Actions and suits against licensed public accountants, certified public

accountants, or attorneys for malpractice shall be commenced within one (1)

year after the cause of action accrued, whether the action or suit is grounded

or based in contract or tort.

(2) In no event shall any action or suit against a licensed public accountant,

certified public accountant or attorney be brought more than five (5) years

after the date on which the act or omission occurred, except where there is

fraudulent concealment on the part of the defendant, in which case the action

or suit shall be commenced within one (1) year after discovery that the cause

of action exists.

Tenn. Code Ann. § 28-3-104(c)(1)-(2). In John Kohl Co., P.C. v. Dearborn & Ewing, 977

S.W.2d 528 (Tenn. 1998), the Tennessee Supreme Court explained that

[t]he statute of limitations for legal malpractice is one year from the time the

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

of action accrues is determined by 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)).

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. Carvell v. Bottoms, 900 S.W.2d

23, 28-30 (Tenn. 1995).

***

The knowledge component of the discovery rule may be established

by evidence of actual or constructive knowledge of the injury. Carvell, 900

S.W.2d at 29. Accordingly, the statute of limitations begins to run when the

plaintiff has actual knowledge of the injury as where, for example, the

defendant admits to having committed malpractice or the plaintiff is

3

The relevant portion of this statute is now found at Tenn. Code Ann. § 28-3-104(c)(1).

-4-

informed by another attorney of the malpractice. Under the theory of

constructive knowledge, however, the statute may begin to run at an earlier

date—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.

John Kohl & Co., P.C., 977 S.W.2d at 532-33. See also Riddle v. Carlton, No. W2011-

02145-COA-R3-CV, 2012 WL 1948870, at *3 (Tenn. Ct. App. May 31, 2012).

In reaching its decision that the statute of limitations had run on Mr. Tolson’s legal

malpractice claims, the trial court specifically found that:

Under the most liberal interpretation of the [] Complaint, Tolson became

aware of the alleged malpractice by Herbison on October 18, 2013, when

Tolson filed a legal malpractice claim against [Herbison] in Federal Court.

Considering Tennessee’s one-year statute of limitations period for legal

malpractice claims, even if the Court accepted Tolson’s allegations as true,

Tolson can prove no set of facts in support of his claims which would entitle

him to relief. . . . Based upon Rule 12.02(b)(6) of the Tennessee Rules of

Civil Procedure and all applicable authority, the Court dismisses the [] legal

malpractice action for failure to state a claim upon which relief may be

granted.

As discussed above, in his complaint, Mr. Tolson alleged that Mr. Herbison failed

to make timely filings and also failed to properly communicate with Mr. Tolson regarding

the status of his post-conviction criminal matters. There can be no doubt that Mr. Tolson

was aware of these alleged shortcomings by October 18, 2013, when he filed his initial

lawsuit in federal court. However, more realistically, Mr. Tolson was aware of facts

sufficient to form the basis of his lawsuit by May 23, 2013 when he filed the complaint

against Mr. Herbison with the Board. From his averments to the Board, Mr. Tolson

contends that Mr. Herbison’s failure to correspond with Mr. Tolson concerning the

Tennessee Supreme Court’s denial of certiorari in his post-conviction matters resulted in

the untimely filing of his writ of habeas corpus. It is well settled the loss of a legal right or

remedy can serve as a “legally cognizable injury.” See Cherry v. Williams, 36 S.W.3d 78,

84 (Tenn. Ct. App. Apr. 17, 2000) (explaining that a legally cognizable injury occurs when

a court renders judgment). Furthermore, a “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.” Riddle, 2012 WL 1948870, at *3

(quoting Honeycutt v. Wilkes, McCullough & Wagner, No. W2007-00185-COA-R3-CV,

2007 WL 2200285, at *8 (Tenn. Ct. App. Aug. 2, 2007)).

-5-

Applying the most liberal analysis concerning when Mr. Tolson became aware of

his potential legal malpractice claims against Mr. Herbison, the latest date would be May

23, 2013, when he filed his complaint with the Board. Applying the May 23, 2013 date,

it is clear that Mr. Tolson’s initial lawsuit in federal court was timely as it was filed on

October 18, 2013, which was within one year of the May 23, 2013 date. The question, then,

is whether the filing of the lawsuit in federal court worked to toll the statute of limitations

in the state lawsuit.

Tennessee Code Annotated section 28-1-115 provides that,

[n]otwithstanding any applicable statute of limitation to the contrary, any

party filing an action in a federal court that is subsequently dismissed for lack

of jurisdiction shall have one (1) year from the date of such dismissal to

timely file such action in an appropriate state court.

The record is silent as to the date the district court rendered its decision in Mr. Tolson’s

federal lawsuit. However, we know that the district court’s dismissal of the lawsuit was

affirmed by the Sixth Circuit Court of Appeals on October 6, 2016.4 Although it is not

clear whether the federal lawsuit was dismissed “for lack of jurisdiction” so as to trigger

section 28-1-115, even giving Mr. Tolson the benefit of the doubt and assuming that the

basis of the decision was lack of jurisdiction, his state case was filed outside the applicable

statute of limitations. Applying section 28-1-115, and giving Mr. Tolson the most

expansive reading thereof, Mr. Tolson had, at the very most, one-year from October 6,

2016 (the date of the circuit court’s dismissal of the federal action) to file his state lawsuit,

i.e., October 6, 2017. Mr. Tolson’s lawsuit, however, was filed in the trial court on July 9,

2018, which was well outside the one-year statute of limitation. As such, the trial court

properly dismissed Mr. Tolson’s lawsuit as time-barred.

Before concluding, we briefly address Mr. Tolson’s argument that the “Statute of

Repose,” Tennessee Code Annotated section 28-3-104(c)(2), supra, operates to save his

lawsuit. Mr. Tolson’s reliance on section 28-3-104(c)(2) is misplaced. The statute of

repose may extend the date for filing up to five years but only in cases where there has

been fraudulent concealment of the attorney’s actions or omissions. Tenn. Code Ann. §

28-3-104(c)(2). There is simply no indication that Mr. Herbison engaged in fraudulent

concealment in this case. Rather, as discussed above, Mr. Tolson was fully aware of Mr.

Herbison’s alleged errors at the time he filed his complaint with the Board.

4

We make no finding concerning whether the one-year extension of the statute of limitations under

Tennessee Code Annotated section 28-1-115 would be triggered by the district court’s decision or whether

the statute would toll the statute of limitations through the federal appellate process. As noted above, we

do not know the date of the district court’s dismissal of Mr. Tolson’s lawsuit, but we do know the date of

the circuit court’s adjudication. So, again giving Mr. Tolson the most expansive reading of the statute, we

will calculate the statute of limitations from the date of the circuit court’s dismissal.

-6-

For the foregoing reasons, we affirm the trial court’s dismissal of Mr. Tolson’s

lawsuit. The case is remanded for such further proceedings as may be necessary and are

consistent with this opinion. Costs of the appeal are assessed against the Appellant,

Damiean Devon Tolson. Because Mr. Tolson is proceeding in forma pauperis in this

appeal, execution for costs may issue if necessary.

s/ Kenny Armstrong

KENNY ARMSTRONG, JUDGE

-7-