issues in this de novo appeal the first is does the hiring of appellate counsel between a jury's verdict and the entry of final judgment six months after the fact constitute actual or sufficient injury to integrate client triggering a statue of limitations for malpractise cases against the trial counsel and two on summary judgment motions were all facts and inferences are viewed in in the light most favorable to the moving party the district court err in finding that appellate counsel was retained for sole purposes of an appeal to constructive knowledge of malpractise as a matter of law doesn't puting that constructive knowledge to the aggrieved client we don't dispute that tennessee code provides for a one year statute we don't dispute that tennessee applies the discovery rule and the statue of limitations begins to run when the plaintiff knows of his injury or should know of its injury upon the exercise of reasonable care do diligence we contend however that the district court committed error when a rule that quote the suffered actual injury when the retained post judgment and appellate counsel to address the award of punitive damages because this constitutes incurring an expense as a result of the fairness allegedly negligent act and quote the district court cited t hundred ninety eight tennessee supreme court case of coal vs dearborn respectfully the district court's reliance on coven the other cases cited by my colleague to the facts and circumstances of our case we believe was in error because those cases deal with hiring a lawyer to take corrective action which the client is undoubtedly aware unlike the case is relied on the district court in a defendant's we didn't hire appellate counsel to correct charl counsel there  negligence at the trial court was going to manifest itself into an injury until a court ruled on final judgment tennessee has this unique procedure where the knew there was liability  liability on the jury's verdict resulted in your having to hire lawyers there was not liability your honor until the trial court entered final judgment on october want because tennessee has ruled that there was no punitive damages that can be awarded because a trial court can can disregard whatever evidence that it decided to admit and if it disregarded the article there would be no evidence of net worth against our client a trial court could have ruled that because there was no net worth as a matter of law punitive damages cannot be affirmed by a jury verdict we didn't know that until october want and if that occurred we would have never had to have gone through an appeal because we're appealing punitive damages that's a unique procedure under tennessee because you have a jury's verdict and then under tennessee law the judge is required under the hodges factors to act as a thirteenth juror that has to go through all of the evidence and decide whether there was sufficient evidence to affirm a jury's verdict our contention in the underlying case was that there was no separate evidence and this is what judge lee who was it you hired the the  lawyers on the theory you were going to need an appeal a potential appeal yes your honor and if you had won at that earlier stage on the ground that there was no evidence of the net work then there would have been wouldn't there would have been something to appeal that's when the well getting there ok let me let me perhaps i'm not sitting myself clear enough but when when the jury rendered its verdict on april thirtieth they wanted punitive damages to the underlying plaintiffs for five million dollars final judgment was not enter we did not know what errors were committed by the trial counsel and that underlying case but you would have after the attorneys reviewed the trial transcripts and there believe the records indicate that they did review the transcripts and that by doing so can't we presume that they have constructed knowledge of the errors that occurred i mean that's unless they're not doing their jobs either but having reviewed the trial transcripts either they find errors in the trial court he may find errors from trial counsel but an appellate counsel as hired to take up issues on appeal from errors from the district court he's not there to we're talking about constructive knowledge of the alleged malpractise and when the clock starts running as to construct that knowledge and you say it didn't run until after the judgment was there i think i think the clock runs once they've reviewed the trial transcript and either discovered the malpractise or should have discovered the malpractise and that is more than one year out your honor i i concede that in every trial there are trial missteps there are trial blunders there are shortages of decisions not to do certain things in the course of the trial for whatever reason but we don't know whether or not those mistakes or errors are going to manifest itself into an adverse judgment that but ok so that's your position that there is no injury until the judgment is rendered but i don't think that's what the law i think is if you have to incur expenses or damages even before the judgment that's when the claim accrues that my wrong about that well well that's correct but the cases in tennessee it the court case cites general principles of tennessee law talking about expenses we don't dispute that what i'm disputing is that the cole case sets forth a specific set of facts under which the general principles were applied to those specific steps and all of those cases we're talking about the cole case and the cases cited by a district court deal with corrective action where the client is actually aware when create a horrible public policy if appellate counsel was required to and i hate to use the word squeal on trial counsel about its errors and tell the client that hey listen your trial counsel it's too short i think but that's what he has chosen to do in practice cases and it's not it's it's discovered or should have discovered that starts the running of the one year clock  may be horrible public policy but we enforce it doing it and while we do enforce the one year statute but my case hinges on the distinction between the facts of the cole case and  cited by the district court and the particular facts of our case the case that fits on all fours in our case is the cherry case the tennessee supreme court and chairing this was decided to years after the cole case where the tennessee supreme court denied serve in the tennessee court of appeals said illegal illegally comma civil injury in litigation and we're talking about litigation cold case was not in litigation occurred when the trial court entered final judgment awarding damages and  court could not be more clear and i'm going to quote this this is in the middle of litigation this is our case in the middle of litigation because we don't have a final judgment or an attorney missteps and there is alternate uncertainty whether that misstep will manifest itself into an fit that case into the facts of our case i don't think cole applies and i don't believe the other cases apply because those cases deal with corrective action and not with an appellate lawyer in our case your honor this is this is what we did we had a verdict on the thirtieth obviously there is a potential for an appeal but we didn't know until the court entered final judgment and and the trial court in the underlying case waited six months until october one we hired appellate counsel to review the record to see whether or not there were errors in the trial court in fact we appealed the first appeal we want it got reversed and final judgment for it for my client and then the tennessee supreme court took it and reversed that and then entered remanded it back to the court of appeals and said that there was sufficient evidence had nothing to do with the the evidence that we're talking about here which is the hearsay article so then when october first hit that's when we first became aware that the trial court said much to his surprise that there was no objection on that on that article and that there was no separate evidence no separate evidence dealing with network and then at that point the rise that was that the truck or could have said this is obviously clearly hearsay evidence that i'm just going to reject this evidence because the court is the gate keeper of the evidence i mean what we can make the argument yet it's obvious that the trial court rely on in this of eleven's but it's just as obvious can disregard that admissible evidence that is clearly hearsay and clearly irrelevant because we're talking about an article that talked about the company's net worth in one thousand nine hundred eighty eight when the when the facts giving rise to the underlying case occurred in two thousand and three was that the argument you made to set aside the jury's verdict no we didn't we didn't make that argument normally evidence three that are is if the parties don't object even if something is hearsay it comes in and the judge later doesn't second guess cold souls well i think maybe cultural could have objected should have objected and therefore i'm going to throw this out i mean i suppose theoretically could happen but because of the evidence three years it very rarely i mean if that's what you were hoping for there's not much of a hope there i get it but we didn't know that we didn't know that until october one and you are we're talking we're here on summary judgment i don't know how a court as a matter of law can rule constructive knowledge on summary judgment all the facts are supposed to be viewed in our favor we should get the benefit of doubt whether or not appellate counsel should have known or not known through expert testimony let them come in testify and say you know we we we didn't know we didn't we didn't tell the client so my client is the one who's prejudiced and he didn't know my client didn't know until october one when it when that error manifested itself in a final judgment when the court ruled that trial counsel fail to object and how surprised he was and that there was no separate piece of evidence and but for that that's why punitive damages was affirmed thank you counsel thank you caldwell based upon your questions i believe you understand my position first of all we whenever you file a motion for summary judgment on statute of limitations and nearly every case that's been cited by both sides was the result of a motion for summary judgment on the statue of limitations and it's very amenable to statutes summary judgment first you've got to look at the theory you concede for the sake of the statute of limitations ok let's assume we were negligent although of course we deny it but for this summary judgment we're going to concede negligence and working going to follow your theory and say ok if this is your theory let's see how it applies to the discovery rule and when you first begin incurring a loss or damages in this case their theory is really very they pared it down it started with lots of other theories but they finally came down to this we allege that the failure to object to the newspaper article which was obviously hearsay and it's never been disputed that it wasn't here cited by anyone it was such a blatant gross deviation from the standard of care that you violated the standard of care because that article was the sole basis upon which the punitive damage award could have been upheld by any one sole basis i mean without it  in that theory we have to track it in here it is beyond dispute that they hired within first of all the first thing that occurred in the trial court didn't focus on this but the day after the verdict richard montgomery who owns american air talked to mr pinckney the day after a shocking five million dollar unexpected punitive damages verdict came down and he talked to mr montgomery and mr montgomery alleged in his complaint and as part of their theory on that day tom pick me told him i never really represented america care in his deposition and i said how did that affect you he said well that was certainly a negative connotation and yes i lost five million dollars in the man says i never really represented america air so that's sad number one within a week he hires what they want to call appellate counsel and it's a good point what were they going to appeal unless they were strongly anticipating the likelihood that the judge was going to up hold some punitive damage award hired him and they unequivocally say but for the punitive damage award for which mr pinckney is solely responsible would have been there if he had objected they hired that's why they had to hire outside and then if they if reviewing the transcript which clearly showed the admission of that article show that it was shown to the jury and read to the jury before mr pinckney had ever seen it and that's why he didn't object because he felt that would just be emphasizing it more but they still say that was gross deviation from the standard of care of it to your question what happened then is if reviewing the transcript and a hundred and twenty five thousand dollars worth of time about two law firms to review this and examine the punitive damage award and think of ways to get out of it weren't enough on july second the plaintiff attorney on his own filed a motion to enter judgment and with that he included a proposed finding of fact and conclusions of law and he addressed all of the hodges factors and the number one factor he addressed the financial condition financial wherewithal of america there and he cited one thing the article in the newspaper so if they had some chance not notice that during their first month of reviewing the transcript on punitive damages there it was and that's exactly like other cases where even just a motion for summary judgment was enough to begin the notice and knowledge of potential malpractise about the idea that they didn't really know whether maybe there'd been some agreement between the attorneys to to allow this to come in the just as a matter of for instance us speculating maybe they maybe they knew that that evidence could have been brought in by an appropriate matter and it would have been the same or maybe even worse and so they figured well we'll just agree to let that come in and go on the basis of that i mean the answer to that is very simple if you read the transcript and on one bite of the period when it was internet it went like this your honor the next to the article we'd like to is an article from one nine hundred ninety seven that shows the one nine hundred ninety eight that shows that america grossed forty seven million dollars it was also highlighted on a screen the next words out of mr i've never seen that article may i say it so it's apparent from the transcript that there was no agreement that he'd never seen it and he sat there reading it and thinking good gosh the jury's already saying this which was pretty bad on the part of the plaintiff attorney to do that but he's faced them with their already rating if i object for hearsay that's telling him i don't want  trial if that could have happened yes ok getting back to my question the point of the underlying point is file a motion for entry of judgment that's before the judge the new counsel respond is that right they prepare and draft a response ok and they said it as in july yes and the time sheet show that mr lee spent several days for that point of this document this hearsay alternative motions and then for the record it turned out the judge said white i don't want anything from anybody so our way of working all that or father the judge finally said i'll make my decision i didn't ask for any of this i'll come up with my opinion which then was amazingly similar to the plaintiffs of you know but so i think this case is so much stronger and clearer than many of the other reported cases we found in the cherry days has nothing to do with that it merely said that's the most easily identified when you've suffered a loss during a trial but then numerous cases afterwards have said well we didn't say that's the first time and we have many cases which side were just the filing of a summary judgment was enough the cole case a wetter from the i r s to a cl saying we think that this tax deduction in tax plain you've taken may not be good and we might be coming down on you for that they hire a lawyer then just because of that letter it's years before it's the term and ultimately that they were wrong with that tax plan yet in coal the statute began running the day they got the letter from the i and then the last began as soon as they hired counsel to defend against the yes the big case the cardiac case that we've cited it mentions cherry and all these other case in that case there was a contract between the hospital and a doctor and they had sued didn't want to do a million dollars compensation because of the the arrangements and a summary judgment was filed by a cardiac saying you're whole contracts no good contracts no good because there's a statute that makes it invalid to split fees that summary judgment ultimately became the starting point of the notice that perhaps their lawyer had committed malpractise the one who devised that plan and they immediately hired a lawyer to defend that case that case didn't reach an ultimate judgment for years afterwards finding that in fact the the plan was no good the contract was forward so they placed cases track perfectly with this case and therefore and we haven't even  touched the converse that well i did touch on the first conversation immediately the day after with richard montgomery where he says mr pick me told him i never really represented you i just think you just lost five million dollars punitive damage in a shocking verdict unexpected unanticipated and your lawyer tells you i never really represented you is that not something that m you on notice that perhaps we've got a problem here i wasn't even represented they tried to abandon that theory that they would have called the conflict of interest there but they didn't completely they said no we're just going on the theory that but for the introduction the introduction of the hearsay this wouldn't there would have been no way to sustain zero damages repeat damages they've also said now the conflict were not abandoning that we're not saying it would have caused a different result but it is the background to show perhaps why his total lack of concern or representation of america care perhaps why he made such a blatant error in not objecting to the hearsay article so i believe and i believe the district court was correct in this matter the  opinion was well written it reviewed all of the law and it reached the proper conclusion and that is that the statute of limitations under tennessee law which is the can change the policy it's harsh it's tough on some plaintiffs especially just simple citizens who wouldn't have near the expertise that america had along with one hundred twenty five thousand dollars worth of brilliant attorneys reviewing this all before a judgment standard so we simply believe the course correct and would ask this court to affirm  and if there's no other questions  are like to address one issue that deals with rightness we can talk about theory and knowledge about when appellate counsel knew or should have known but an application what would happen if the statue limitations began to run when the district court said it did which was sometime in july when when this review occurred and let's say at that point america decides that it's going to file a malpractise action against mr pickney before a final judgment has been entered the case is not right there's no liability negligence without damages is not  october won when they got final judgment does that mean that the stache limitations then shifts six months i mean it's a moving target and why is my client panelized for being diligent whatever occurs earth whatever incurred expense or damages but the distinction your honor and i would just again ask the court to go back and read a cold case and read the cherry case the distinction is incurring the expense for corrective action the corrective action of something that the client is aware hiring another lawyer to correct an action of the prior lawyer here we have a pellet counsel who is not there to correct the action of a did he did they get involved into the response by the plaintiff for the entry of the judgment that they say that the point of the move to enter judgment at this point appell of judge wright it is but ok so expenses are being incurred by appellate counsel in response to the entry of the judgment caused by the alleged military to two points there that this this motion frenchie of judgment it is just an order affirming the jury verdict and they list out all of the evidence that supports the award of punitive damages  appellate counsel did participate in working with mr picknick who was still representing america here during that we had our own proposed judgment the court except the plaintiffs no surprise we're not here contesting  hired a friend of mr montgomery and he wasn't charging him attorneys fees didn't occur any expenses what if the appellate counsel came in under some reverse contingency fee where he didn't have to pay the expenses what mr what if america didn't pay their attorneys fees i mean the expense that we're talking about in the cases that are relied upon by the district court deal with corrective action appellate expenses are very different and if we had filed in august  in the interim between the jury verdict and and final judgment the case would have been dismissed for not being right because there's no i believe it until there's final judgment that center of action so the judge was not allowed to correct the jury's verdict or t a motion and told the judge said that there was insufficient evidence center the judgment not related to the article in fact the court of appeals in tennessee first time around said there was insufficient evidence and we want we completely reversed the judgment entered for for defending america air that the tennessee supreme court granted cert and reversed that so that in itself i think were reflects the fact that you know the underlying judgment at the trial court was uncertain at best and we didn't know when whether any of those errors would manifest itself until a liability occurred on october one and we filed within a year of october want are you that are am a management of long term care facility counsel where i managed firms and he hired me to find appellate counsel and i worked with the public can i just wonder i mean is it sort of speculative and beyond that strict confines of this case but if we hold against you then there's arguably a malpractise claim at the next level yes for failing for appellate counsel failing to decide and that hasn't been brought within a year so there's arguably next