FILED

February 16, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

 ______________________________________________

BRADSON MERCANTILE, INC., 

Plaintiff-Appellant,

Vs. Shelby Circuit No. 79449-1

C.A. No. 02A01-9710-CV-00272

JOSEPH H. CRABTREE, JR., 

Individually; SHUTTLEWORTH,

SMITH, McNABB & WILLIAMS,

A Partnership; KENNETH R. 

SHUTTLEWORTH, Individually;

GARY K. SMITH, Individually;

LELAND McNABB, Individually;

BRUCE E. WILLIAMS, Individually;

ROBERT L. SABBATINI, P.C.;

and ROBERT H. HARPER, Individually,

as Partners of the Partnership, 

Defendants-Appellees.

____________________________________________________________________________

FROM THE SHELBY COUNTY CIRCUIT COURT

THE HONORABLE WILLIAM B. ACREE, JR.

Wyatt, Tarrant, & Combs; Glen G. Reid, Jr. and

Ross Higman of Memphis

For Plaintiff-Appellant

Glassman, Jeter, Edwards and Wade, P.C.

William M. Jeter of Memphis

For Defendants-Appellees

AFFIRMED AND REMANDED

Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR:

HEWITT P. TOMLIN, JR., SENIOR JUDGE

DAVID R. FARMER, JUDGE (Not Participating)

This case is before the Court on remand from the Supreme Court for this Court “to

reconsider it’s opinion in light of [the Supreme Court’s] recent decision in John Kohl & Co.

P.C. v. Dearborn & Ewing.” The Court, pursuant to the Supreme Court’s mandate, has

reconsidered the case and withdraws its previously filed opinion.
1

 This project was also referred to as the “M.T. Mechanical project.”

2

 “Law Firm” will be used to refer to all individual defendants and the firm.

2

This is a legal malpractice case. Plaintiff/Appellant Bradson Mercantile, Inc., (Bradson)

appeals the trial court’s order granting summary judgment on the ground that the action is barred

by the statute of limitations. 

During the late 1980s and early 1990s, Bradson, as a subcontractor, provided labor for

two construction projects in Shelby County: the Mapco project1 and the Shelby Tissue project.

When it was not paid for its participation in these projects, Bradson retained Defendant/Appellee

Joseph H. Crabtree of the law firm Defendant/Appellee Shuttleworth, Smith, McNabb &

Williams (Law Firm)2 as legal counsel in 1992. Bradson alleges that it hired Crabtree to collect

the sums due and to perfect mechanic’s and materialman’s liens on the real property involved

in the projects. At some point later, Bradson learned that the lien on the Mapco project was

never perfected. In an attempt to resolve the dispute without litigation, the parties entered into

a “Tolling Agreement” on October 14, 1993. This agreement states in relevant part:

 Bradson may have and asserts a claim against Crabtree and the

Law Firm for breach of contract, legal malpractice, and/or

negligence arising out of the representation by Crabtree and the

Law Firm of Bradson relating to Bradson’s claim against MT

Mechanical Contractors, Inc. and the perfection of a Mechanics

and Materialmen’s Lien involving property of MAPCO

Petroleum, Inc. (“the Representation”). Bradson has advised

Crabtree and the Law Firm of its intention to file a lawsuit against

them; and

 Crabtree and the Law Firm have advised their malpractice

insurance carrier of the claim and desire additional time to settle

or reconcile the claim of Bradson; and

 In order to provide the parties with a period of time to

endeavor to settle or reconcile the issues, Crabtree and the Law

Firm agree to extend and waive and otherwise toll any and all

limitation periods or statutes of repose, both legal and equitable,

including but not limited to TCA §28-3-104, applicable to any

and all causes of action which Bradson may have or may assert

against Crabtree and/or the Law Firm and/or its Partners, agents

and employees arising from the Representation;

 NOW, THEREFORE, in consideration of Bradson forebearing

until February 14, 1994, from taking any action against Crabtree,

the Law Firm, its agents, employees or Partners, arising out of the

Representation above referred to, Crabtree, individually, the Law

Firm, its Partners, agents and employees hereby covenant and

agree that they will not, in any way, in response to or in defense

of any action brought against them or any of them by Bradson

relating to the Representation raise the defense of any statute of

limitation or of repose (legal or equitable) to any claim asserted

by Bradson against Crabtree and/or the Law Firm, its Partners,

agents and/or employees relating to the Representation.

Meanwhile, Law Firm had filed an action on behalf of Bradson with regard to the Shelby
3

 Bradson’s brief states that on December 17, 1993, Shelby Tissue filed a Motion to

Dismiss in this suit, asserting that Bradson failed to comply with the requirements of the lien

statutes. Bradson’s brief also includes a letter written December 29, 1993 from Bradson’s

new counsel to counsel for Law Firm in which Bradson states its intention to pursue a legal

malpractice action if necessary for the Shelby Tissue liens. These documents, however, were

not included in the record and, thus, we do not consider them on appeal. Tenn. R. App. P.

24; State v. Thompson, 832 S.W.2d 577, 579 (Tenn. Crim. App. 1990). 

3

Tissue project. In addition, the contractor for the Shelby Tissue project filed a Lien Creditors’

Bill on behalf of several lien creditors, including Bradson. Subsequently, Bradson discovered

that Law Firm may have failed to comply with statutory requirements for the perfection of the

Shelby Tissue lien.3

 Bradson’s Complaint alleges that although a Notice of Lien was filed in the

Shelby County Register’s office, Law Firm “failed to prepare and serve a written notice that the

lien was being claimed within the time prescribed by T.C.A. § 66-11-115(b).” In addition,

Bradson’s Complaint also alleges that Law Firm neglected to timely “prepare and serve a Notice

of Nonpayment by registered mail to Shelby Tissue and the property owner in accord with

T.C.A. § 66-11-145.”

On February 14, 1994, the parties entered into an “Extension of Tolling Agreement.”

This agreement states in relevant part:

 This Agreement is for the purpose of further extending the

Tolling Agreement heretofore entered into by and between the

parties on October 14, 1993. . . .

 The Parties have endeavored to settle or reconcile certain

issues that may exist as heretofore delineated in the original

Tolling Agreement and, because of additional matters that may

have arisen, the parties are desirous of extending the original

Tolling Agreement through May 6, 1994, pursuant to the terms

and conditions of the original Tolling Agreement. All other

provisions in the original Tolling Agreement shall continue to be

applicable, with the tolling period being extended from February

14, 1994 through and including May 6, 1994.

Bradson asserts that it was the intent of the parties to incorporate the potential Shelby Tissue

project claim as part of the original Tolling Agreement.

In March 1994, the parties settled the Mapco dispute. The Release and Indemnification

Agreement specifically excludes the Shelby Tissue dispute and states: It is acknowledged,

understood and agreed by Insurers and Lawyers that Bradson does hereby specifically reserve

any and all rights and claims it may have against the Law Firm of Shuttleworth, Smith, McNabb

& Williams, it [sic] partners, associates and employees including, but not limited to, claims for

legal malpractice relating to or arising out of the representation of Bradson by said Lawyers

relating to a project commonly identified as “Shelby Tissue” on which Lawyers agreed to and

did perform and render certain services and certain work and in which the said Lawyers and Law

Firm represented Bradson. . . . All parties to this Release further acknowledge that a claim has

heretofore been made with regard to the “Shelby Tissue” representation and that that claim as

well as any and all other claims which Bradson has or may have are not being released by this

Agreement.
4

 Although the trial court did not explain its reasoning, May 6, 1994 was the date

through which the Tolling Agreement was extended.

4

On June 11, 1996, an order was entered in the underlying Shelby Tissue action holding

that because Bradson had failed to perfect its mechanic’s and materialmen’s lien, it had no

protection under the Lien Creditors’ Bill. Bradson timely filed a Notice of Appeal from this

order.

On June 26, 1996, Bradson filed the legal malpractice Complaint against Law Firm.

Both parties filed motions for summary judgment. Finding that the statute of limitations expired

on May 6, 1994, the trial court granted summary judgment to the Law Firm.4

 Bradson has

appealed, and presents three issues for review, as stated in its brief: 

1. Did the Circuit Court err in allowing the law firm to raise the

statute of limitations as a defense when the law firm had

expressly waived the statute of limitations in the Tolling

Agreement and the Extension of Tolling Agreement.

2. Did the Circuit Court err in granting summary judgment to the

law firm on the basis of the statute of limitations when the law

firm further indicated its intention to waive the statute in the

Release and Indemnification Agreement?

3. Did the Circuit Court err in granting summary judgment to the

law firm on the basis of the statute of limitations when there was

no evidence in the record to establish when the cause of action

accrued or the statute of limitations ran?

A motion for summary judgment should be granted when the movant demonstrates that

there are no genuine issues of material fact and that the moving party is entitled to a judgment

as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the

burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d

618, 622 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest

legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences

in favor of that party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d

208 (Tenn. 1993), our Supreme Court stated:

Once it is shown by the moving party that there is no genuine

issue of material fact, the nonmoving party must then

demonstrate, by affidavits or discovery materials, that there is a

genuine, material fact dispute to warrant a trial. In this regard,

Rule 56.05 provides that the nonmoving party cannot simply rely

upon his pleadings but must set forth specific facts showing that

there is a genuine issue of material fact for trial.

Id. at 211 (citations omitted) (emphasis in original).

Summary judgment is only appropriate when the facts and the legal conclusions drawn
5

from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26

(Tenn. 1995). Since only questions of law are involved, there is no presumption of correctness

regarding a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our

review of the trial court’s grant of summary judgment is de novo on the record before this Court.

Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

The first two issues presented for review require the interpretation of the agreements

referred to. The cardinal rule in the construction of contracts is to ascertain the intent of the

parties. West v. Laminite Plastics Mfg. Co., 674 S.W.2d 310 (Tenn. App. 1984). If the contract

is plain and unambiguous, the meaning thereof is a question of law, and it is the Court’s function

to interpret the contract as written according to its plain terms. Petty v. Sloan, 197 Tenn. 630,

277 S.W.2d 355 (1955). The language used in a contract must be taken and understood in its

plain, ordinary, and popular sense. Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth,

Inc., 521 S.W.2d 578 (Tenn. 1975). In construing contracts, the words expressing the parties’

intentions should be given the usual, natural, and ordinary meaning. Ballard v. North American

Life & Cas. Co., 667 S.W.2d 79 (Tenn. App. 1983). If the language of a written instrument is

unambiguous, the Court must interpret it as written rather than according to the unexpressed

intention of one of the parties. Sutton v. First Nat. Bank of Crossville, 620 S.W.2d 526 (Tenn.

App. 1981). Courts cannot make contracts for parties but can only enforce the contract which

the parties themselves have made. McKee v. Continental Ins. Co., 191 Tenn. 413, 234 S.W.2d

830, 22 ALR2d 980 (1951).

We have examined the tolling agreement and the agreement for the extension thereof.

In neither agreement do we find reference made to the Shelby Tissue project, nor do we find that

the language makes any indication that the Shelby Tissue project was intended to be included

in the tolling agreement relied upon by Bradson. As to the Release and Indemnification

Agreement, the usual and ordinary meaning of the language used merely indicates an intention

to make it clear that the release does not include any claim relating to the Shelby Tissue project.

We find no language in this agreement that would indicate an intention to waive or toll any

statute of limitations.

Appellant’s first two issues are without merit.

The third issue for review is whether the trial court erred in granting summary judgment

on the basis that Bradson’s claim was barred by the statute of limitations. 
5

 The trial court, however, suggested a remittitur.

6

 The Carvell Court stated that term, “irremediable,” used by the Court in 

Ameraccount Club, Inc. v. Hill, 617 S.W.2d 876, 879 (Tenn. 1984), was “pure dicta.” 

Carvell, 900 S.W.2d at 29-30.

7

 The parties also refer to documents not in the record indicating that Bradson had

knowledge of the potential claim as early as December of 1993. See Footnote 3.

6

A n act i on f o r l egal m a l p r act i ce m ust be com m ence d “w i t h i n one ( 1 ) year af t e r t h e caus e of act i on acc r ued. ”

T . C . A . § 28- 3 - 104 ( a ) ( 2 ) ( Supp. 1997) . Carvell v Bottoms, 900 S. W . 2d 23 ( T e nn. 1995), i s t he sem i nal case i n

T ennessee i nvo l v i ng the accr ual of a l egal m a l pract i ce caus e of act i on. In Carvell, t he plai n t i f f s r e t a i ned the l egal

ser v i ces of t he defendan t s f or t he pu rpose of sel l i ng a real est a t e parcel t o M s . R oaby B axt er. A l t hou gh a p rel i m i nary

title opi n i o n dra f t e d by the d efen d a nts i n d icated the ex ist e n c e of a pipe l i n e ea sem e n t across the pr oper t y , t he w a r r ant y

deed pr epar ed by t he def endant s di d no t m ent i on the easem ent . A few years aft e r purchasi ng the propert y , M s . B axt e r

file d su i t ag ain st the C arv ells u p o n d isco v erin g the ex isten c e o f the ea s e m e n t . T h e p lain t i ffs w ere put on noti ce at som e

poi n t soon t her eaf t e r t hat t he def endant s m ay have negl i gent l y dr a f t ed t he w a r r ant y deed. I n Ja nuar y of 198 9 , a t r i a l

court ent ere d an o rder on a jur y verdi c t i n favor of M s . B axt er. 5

 B o t h par t i e s appea l ed, but t he t r i a l cour t ’ s j udgm ent

w a s affirm e d i n M a r ch of 1990. The pl a i n t i f f s pr ocee ded t o br i ng a l egal m a l pract i ce sui t agai nst t he defendan t s i n M a y

o f 1990. Id. at 24- 25.

T h e p lain t i ffs a r g u e d that t h e ca use of act i on di d not acc r ue unt i l t he Court of A ppeal ’ s de c i s i on w a s f i l ed i n

M arc h of 199 0 , cl a i m i ng that t hei r i n j ury di d no t becom e “i r r e m edi abl e” unti l al l of t hei r poss i b l e appeals had b e e n

exhaus t ed. Id. a t 29. The S uprem e C ourt rej ect e d t he plai n t i f f s ’ argum ent and h e l d t hat al t hough t he pl a i n t i f f s ’ i n j u r y

need not be “i r r e m edi abl e” t her e m ust be a “ l egal l y cogni zabl e” or “ac t ual ” i n j u r y . 6

 Carvell, 900 S.W . 2d at 29- 30.

T h e C ourt fur t her s t a t ed t hat “a pl a i n t i f f i s de e m ed t o have di s c over ed t he r i ght of act i on i f he i s a w a r e of f act s s u f f i c i ent

t o put a r eas onabl e per son on noti ce t hat he has suff ere d an inj ury as a r esul t of w rongful cond uct . ” Id. at 29 ( quot i n g

Roe v. Jefferson, 8 7 5 S . W . 2d 6 53, 657 (Ten n . 199 4)) . A pplyi ng thi s s t andard, t he C ourt noted t hat t he C arvel l s

shoul d ha v e kn o w n tha t t h e y h a d susta i ned an i n j u r y as a r e s u l t of t he l a w yer ’ s ne g l i gence w hen t hey w e r e s ued by

B axt e r i n 1986. Carvell, 900 S. W . 2d at 29.

Thus, a ca use of a cti o n for lega l m alprac t i c e ac cru es w h e n: 1) the d efen d a nt’s ne gli g e n c e c a u ses the p lain t i f f

t o suf f e r a l egal l y cogni zabl e or act ual i n j u r y ; and 2) t he pl a i n t i f f know s “ o r i n t he exer c i se of rea sonable di l i gence

shoul d have kno w n t hat t h i s i n j ury w as caused by defendan t ’ s negli gence.” Id. at 28, 30. In t he i nst ant case, t here is

little ques t i on t hat B r ads on knew or shoul d have know n of a pot ent i a l caus e of act i on agai nst t he D e f endant s mo r e t han

one year bef o r e t he Com p l a i n t wa s f i l ed. The R e l eas e and I ndem n i f i cat i on A g r eem ent exec u t ed i n M ay of 1994

express l y dem onst rat es t hat B rads on h ad kn o w l edge o f t h i s pot ent i a l cl a i m .

7

 The m o r e cr uci a l i s s u e i nvo l ves t he date
8

 A corporation, Fabricating, Inc., was also listed as a defendant. This suit was

eventually dismissed, but a different suit was later filed in Texas.

7

a t w h i ch B rads on suff ere d fr o m an “act ual i n j ury” or a “l egal l y cog n i zabl e i n j ury. ” Id. a t 30.

B e f o r e Carvell, Tenness ee c our t s s t r uggl ed w ith t h e i s s ue of t he accrual of a l egal m a l pract i ce cause of act i o n

o n nu m ero us o c c asion s . I n Ameraccount Club, Inc. v. Hill, 617 S. W . 2d 876 ( Tenn. 1981) , t he pl a i n t i f f

cor por a t i o n em p l oyed t he defendan t at t orneys t o regi s t er a ser v i ce m ark and l ogo w i t h t he U n i t ed S t a t es Pat ent O f f i ce.

A fte r l ear n i ng i n M a r ch of 1975 t hat t hei r appl i cat i on f i l ed D ece m ber , 1974, w a s i ncom p l e t e , t he def endant s com p l e t e d

t h e appl i cat i on and a re g istr a tio n dat e of M arc h 13 , 197 5 w as as s i gned . T he defendan t s , how ever, fai l ed t o con duct a

sear ch of w het her any other appli cat i ons for si m i l ar s ervi ce m arks had been s ubm i t t ed. B y l e t t e r of A ugust 13, 1975,

t h e p l a i n tiff w a s n o tifie d t hat another com pany had sub m i t t ed an ap p l i cat i on for a s i m i l ar s ervi ce m ark i n F ebruar y of

1975. A l t hou gh the ot her com pany w as confer red pr ecedence, t he plai n t i f f w as not i f i ed t hat i t ret a i ned t he r i ght t o

contes t t h i s c onf e r r a l . Short l y t her eaf t e r ( bef o r e A ugust 27, 1975) , th e pl a i n t i f f conduct ed a s har ehol der s ’ m eet i ng i n

w h i c h t he m e m bers agreed t hat t he defendan t s had act e d negli gentl y . T he plai n t i f f never contes t ed t he P a t ent O f f i ce’ s

deci s i on an d w a s n o tifie d on A p r i l 27, 1976 t hat t he Pat ent O f f i ce ha d of f i c i a l l y r e f use d i t s a ppl i cat i on. The pl a i n t i f f

f i led a lega l m alprac t i c e suit ag ainst t h e de fen d a nts on A u g ust 27 , 19 7 6 . Id. a t 876- 77.

T h e Supre m e Court r e j ect ed t he def endant s ’ ar gum ent t hat t he ca u s e of act i on acc r ued at t he poi n t t hat t h e

p lain t i f f di s c over ed t he def endant s ’ negl i gence . I nst ead, t he Court hel d t hat “m o r e w a s r equi r ed, vi z . , dam age or i n j u r y

t o t he plai n t i f f res u l t i ng fr o m t hat negli gence,” and f oun d t hat t he pl a i n t i f f di d no t suf fer an i n j ury f rom t he al l eged

negli gence unt i l t he Pat ent O f f i ce r e j ect ed i t s a ppl i cat i on on A p r i l 27, 1996. Id. a t 878. The C our t ci t ed appr ovi ngl y

t h e noti on that t he cause of act i on accrues at t he po i n t at w h i ch t he a l l eged n egl i gence b ecom es “i r r e m edi abl e . ” Id.

a t 879 ( quot i ng Chamberlain v. Smith, 72 C a l . A pp. 3d 835, 140 C a l . R p t r . 493 ( 1977) ) . 

I n Security Bank & Trust Co. v. Fabricating, Inc., 673 S.W . 2d 8 60 (T enn. 1983), a t o w n’s l ocal

bond coun sel ass i s t ed i n t he i s s uance o f r evenu e bon ds t hat w e r e per sona l l y guar ant eed by t w o i ndi v i dual s . The bonds

defaul t e d on O c t ober 1, 197 4 , and it w as s ubsequ ent l y dis cover ed t hat t he bond i s s ue m ay have been f r audul ent l y

conceived by t he t w o i ndi v i dual guar ant o r s . A f e w m onths l a t er, t he t o w n and t he t rus t ee bank fi l ed sui t agai nst t he t w o

guar ant o r s , 8 seeki ng recovery for t he fai l ure of t he bo nd is sue. In t he Sum m e r of 1975, le tte r s w e r e w ritte n to th e tru ste e

bank rec o m m ending t hat a sui t be broug h t on b ehal f of t he bo ndh o l ders agai nst cer t a i n p a rti e s , i ncl udi ng t he bond

a t t o r neys . A l egal m a l p r act i ce s u i t w a s not br ought agai nst t hese at t o r neys , how ever , unt i l N ovem ber of 1976. Id. a t

861- 63.

T h e Supre m e Court r e j ect ed t he pl a i n t i f f s ’ ar gum ent t hat t h e caus e of act i on di d not acc r ue unt i l t he s u i t agai nst

t he guar ant o r s was conc l uded. C i t i ng Ameraccount, supra, t he Court st a t ed:
9

 The Court, nevertheless, held that the cause of action did not accrue until the date

that the plaintiff discovered that the initial suit was dismissed. Id.

8

O bvi ousl y , n egl i g ence w i t hout i n j u r y i s not act i onabl e ; hence , t he s t a t u t e of

l i m i t a t i ons c oul d not begi n t o r un unt i l t he at t o r ney’ s negli gence h ad res u l t e d in

inju r y t o t he plai n t i f f . In t he i nst ant case, t he i n j ury t o t he bo ndh o l ders occurr e d

o n O c t ober 1, 1974, when the bonds defaulted. T here i s no m eri t w hat ever

i n th e pl a i n t i f f s ’ ar gum ent t hat t hei r i n j u r y di d not occur unt i l t he s u i t agai nst t h e

guar ant o r s i n Texas w a s concl uded. A pl a i n t i f f cannot be per m i t t ed t o w a i t unt i l

he kn o w s al l of t he i n j uri ous eff ect s as consequ ences of an act i onab l e w rong.

Security Bank, 673 S.W . 2d at 864-65 (i n t ernal ci t a t i on o m i t t ed) ( e m phasi s i n ori g i nal ) . 

I n Chambers v. Dillow, 713 S. W . 2d 896 ( Tenn. 1986) , t he pl a i n t i f f hi r ed t he def endant at t o r ney t o

r epr e s ent hi m i n a su i t ag ainst the co u n ty. T h e p lain t i ff’s su i t ag ain st the co u n ty w a s d ism isse d in M arc h o f 1 9 8 1 fo r

failu r e t o pr ose cut e . A f t e r bei n g noti f i ed of t h i s di s m i s s a l i n M arc h of 198 2 , t he plai n t i f f hi red anot her at t o r ney, w h o

file d a T enn. R. Civ. P. 60. 02 m o t i on to set asi de t he order of di s m i s s a l . A l t hou gh thi s m o t i on w a s gr ant ed, t he t r i a l cour t

u ltim a t e l y d i s m i s s ed t he s u i t f o r t he s econd t i m e i n A p r i l of 1983. The pl a i n t i f f f i l ed a m a l p r act i ce s u i t agai nst t h e

def endant and t he def endant ’ s l a w f i r m i n O c t ober of 1983. Id. a t 896- 97.

T h e pl a i n t i f f ar gued t hat hi s caus e of act i on di d not accr ue un t i l t he date of t he second di s m i s s a l . T he S uprem e

C our t , how ever , f ound t hat t he pl a i n t i f f suf f e r ed “i r r e m edi abl e” i n j u r y on t he dat e of the first ord er o f d ism issa l i n M arc h

o f 198 1 , si nce t h i s di s m i s s a l quali f i ed as “an adj udicat i on u pon t he m eri t s” i n accordance w i t h Tenn. R . C i v . P. 41. 0 2

( 3 ) . 9

 Chambers, 713 S. W . 2d at 898. The C our t st a t ed:

W here as her e t he cl i ent has kno w l edge of t he l a w yer ’ s ne g l i gence , of t h e

t e r m i n a tio n of hi s l a w sui t , of t he l egal cons equenc e s of t hat t e r m i nat i on, and h a s

e m p l oyed another l a w yer t o pr ose cut e hi s m a l p r act i ce c l a i m , he ca nnot def e r t h e

i r rem e d iable injury d ate b y fu t i le effort s to rev ive a lega l l y d ism iss e d law suit .

Id. T he C ourt al so noted tha t t h e p lain t i ff h a d suf f e r ed “s u f f i c i ent ” t angi b l e i n j u r y at t he poi n t of hi s di s c over y t hat t h e

i n itia l suit w as d ism iss e d : nam ely h e w as li a b le for t h e co urt co sts of h is di s m iss e d suit , he had l ost at l e a s t t he i n t ere s t

o n ant i c i pat ed m oney r ecove r y , and he w a s f ace d w i t h t he prospect of i ncurr i ng att orney’s fee s f or t he i m pend i ng legal

m a l p r act i ce s u i t . Id. a t 898- 99. See also Bland v. Smith, 197 Tenn. 683, 277 S. W . 2d 377 ( 1955) .

T h i s C ourt consi dere d th is is s ue i n 1986 i n Memphis Aero Corp. v. Swain, 732 S. W . 2d 608 ( Tenn.

A pp. 1986) . The pl a i n t i f f i n Memphis Aero hi r ed t he def endant at t o r ney t o col l ect t h e bal ance of an accou n t ow e d

b y A r gonaut s , I nc. . The def endant pr ocee ded t o f i l e a c i v i l w a r r ant and an a t t achm ent f o r a n ai r c r a f t ow n e d by

A r gonaut s that w as stored on the p lai nti ff’ s pre m ises. The pl a i n t i f f ’ s a t t achm ent w as s ust a i ned w hen A rgonauts fai l e d

t o appear, and the ai rcr aft w as s o l d t o sat i s f y t he j udg m ent . O ne m onth l a t er, A rgonauts noti f i ed t he defendan t t hat t h e

a t t achm ent w as w ron gfu l l y o btaine d sinc e n o se r v i ce of p r oces s was eve r r ece i ved by A r gonaut s . C onse quent l y ,

A r gonaut s f i l ed s u i t f o r dam ages r e s u l t i ng f r o m th e w r ongf u l at t achm ent agai nst t he def endant and t he pl a i n t i f f i n

A ugu s t o f 1978. A 1982 or der by t he t r i a l cour t di s m i s s i ng t he s u i t w a s r ever s e d by t he Court of A ppeal s a nd,
10 The plaintiff had earlier filed a complaint but took a voluntary nonsuit. Id. at *1.

11 Although the opinion does not specify the date of the trial court’s order,

presumably the order was entered within one year before June 12, 1995.

9

u ltim a t e l y , A r gonaut s was aw a r ded a j udgm ent i n D ece m ber of 1983. A l so i n D ece m ber of 1983, t he pl a i n t i f f sue d t h e

defendant f or l egal m a l pract i ce. Id. a t 608- 09.

W e he ld t h a t t h e ca use of a cti o n ac cru e d m ore than on e y e a r be fore the co m plaint w as fil e d . C itin g th e

afor e m ent i oned ca s e s, w e fo u n d tha t t h e p lain t i ff su ffere d an inju r y as ear l y as t he t i m e t hat A rgonauts fi l e d it s su i t fo r

t h e w r ongf u l at t achm ent i n A ugust of 1978, w hen t he pl a i n t i f f “r ece i ved per i odi c bi l l i ngs fr o m its l a w yers for ser v i ces

i n t he def ens e of t he A r gonaut s case and paid bi l l s as t hey w ere rec e i ved thr oug hou t t he pen dency of t hat sui t . ” Id. a t

612; see also Tennessee WSMP, Inc. v. Capps, N o . 03A 01- 9407- C V - 00241, 1995 W L 83579 (Tenn. A pp.

M a r . 2, 1995) ; Dukes v. Noe, 856 S. W . 2d 403 ( Tenn. A pp. 1992) ; Batchelor v. Heiskell, Donelson,

Bearman, Adams, Williams & Kirsch, 828 S. W . 2d 388 ( Tenn. A pp. 1991) ; Bridges v. Baird, Sh e l by L a w

N o . 32, 1989 W L 740 (Tenn. A pp. Ja n 9, 1989) ; Denley v. Smith, Shel by Law N o . 48, 1989 W L 738, *4 ( Tenn.

A pp. Jan. 9, 198 9) ( “[T]he act i on accrued w hen an y dam ages, no m a t t er how s m a l l , becam e apparent . ”); Master

Slack Corp. v. Bowling, H a r dem an Law N o . 2, 1987 W L 10406 (Tenn. A pp. M ay 5, 1987) ; Citizens Bank

v. Williford, N o . 85- 315- I I , 1986 W L 6056, *7- 9 ( Tenn. A pp. M ay 29, 1986) ( K och, J. , concur r i ng) ; A nnot a t i on,

When Statute of Limitations Begins to Run Upon Action Against Attorney for Malpractice, 1 8

A . L . R . 3d 978 ( 1968) .

Since Carvell, t he i s s ue has been r evi s i t ed by the C o u r t of A p p e a ls on a few oc c a sions. See, e.g., Tanaka

v. Meares, N o . 03A 01- 9710- C V - 00463, 1998 W L 237717 (Tenn. A pp. M ay 12, 1998) ; Rayford v. Leffler, 953

S . W . 2 d 204 ( Tenn. A pp. 1997) ; Bokor v. Bruce, N o . 01A 01- 9603- C V - 00119, 1996 W L 465235 (Tenn. A pp. A ug.

16, 1996) ; Smith v. Petkoff, 919 S. W . 2d 595 ( Tenn. A pp. 1995) . I n Porter-Metler v. Edwards, N o . 03A 01-

9709- C V - 00393, 1998 W L 131515 (Tenn. A pp. M a r . 25, 1998) , t he pl a i n t i f f hi r ed t h e def endant at t o r ney t o r epr e s ent

her i n a personal i n j ury sui t . A com p l a i n t w as f i l e d 10 but pr oces s a n d ali as p roc ess w e r e r e t u r ned uns e r ved i n 1993.

B e c a u s e further p roc ess w as n ot i ssue d and a n e w com p l a i n t w as not t i m e l y fi l ed, t he t r i a l court di s m i s s ed t h e act i on. 11

T h e p lain t i f f pr ocee ded t o br i ng a l egal m a l p r act i ce s u i t agai nst t he def endant on June 12, 1995. Id. a t *1. C itin g th e

t w o - p r ong r u l e ar t i cul a t ed i n Carvell, supra, t he Court st a t ed:

 R egar d i ng t he f i r s t par t of t he di s c over y r u l e , pl a i n t i f f ar gues t hat she di d not

s u ffer a l egal l y cogni zabl e i n j ury unti l t he cou r t ent ere d an order di s m i s s i ng h e r

under l y i n g case. If t he i s s ue of w het her di s m i s s a l shoul d have b een grant ed w ere

less clear or open to reasonable legal debate, t he pl a i n t i f f m i ght have

a st r onger ar gum ent . B u t i n t h i s cas e , w here s ervi ce of pr ocess w as not t i m e l y

rei s s ued, i t w as pat ent l y cl ear t hat pl a i n t i f f ’ s cl a i m agai nst [t he al l eged p ers onal

inju r y t o r t f eas o r ] had bec o m e t i m e - bar r ed and t her e w a s not h i ng t hat coul d have

been done t o r evi ve her act i on. Thus, she suf f e r ed a l egal l y cogni zabl e i n j ury at
10

t h e expir a t i on of t he s i x - m ont h per i od w i t h i n w h i ch s he w a s al l o w ed by t h e

T e n n e ssee R ules o f C ivi l Proc e d ure to reissue a sum m o n s . . . .

Id. at *2 ( e m phas i s a dded) .

Carver Plumbing Co. v. Beck, N o . 01A 01- 9708- C V - 00377, 1998 W L 161112 (Tenn. A pp. A p r . 8,

1998) , i nvo l ved fact s s o m e w hat si m i l a r t o t he f act s i n t he pr e s ent cas e . The def endant at t o r ney w a s hi r ed by t he pl a i n t i f f

t o fi l e a m echanic’ s l i en. T he defendan t fi l ed t he l i en bu t fai l ed t o t i m e l y fi l e a sui t t o enforce t he l i e n i n accordance

w i t h T . C . A . § 6 6 - 11- 115 ( c ) ( 1993) ( sui t m ust be br ought w i t h i n ni net y days of f i l i ng of t he m echa n i c ’ s l i en) . The

iss u e s , how ever , w e r e di f f e r ent t han t he i s s ues i n t he pr e sen t case, si n ce i n Carver Plumbing t he par t i e s di d not

d i sput e t hat t he pl a i n t i f f “s u f f e r ed a l egal l y cogni zabl e i n j u r y . . . w hen t he 90- day t i m e per i od f o r f i l i n g a s u i t to e n f o rce

t he m echanic’ s l i en exp i red. ” Id. a t *3.

F i nal l y , t he S uprem e C ourt rec ent l y add res sed t h i s i s s ue again i n John Kohl & Co. P.C. v. Dearborn

& Ewing, 977 S . W . 2 d 528 ( Tenn. 1998) . Kohl involves a legal malpractice claim concerning alleged

erroneous advice given in connection with the client’s profit sharing plan. The trial court found

the law firm liable for some of its actions in connection with the profit sharing plan and awarded

damages therefor. However, the trial court held that the claims relative to the rollovers and

contributions of individual retirement account funds were barred by the one-year statute of

limitations. The Court of Appeals affirmed the judgment of the trial court, and the Supreme

Court affirmed the two lower courts.

The Court noted that in September of 1988, the Kohls received a letter from the IRS

informing them of some problems with their 1986 tax return and requested further information

concerning the statements in the return. The Kohls’s accountant responded to the letter shortly

thereafter with the information sought by the IRS. On October 24, 1988, Robert Kolarich,

another of the Kohls’s lawyers, wrote Dearborn & Ewing advising the law firm of new problems

with the IRS concerning the pension and profit sharing plans. Mr. Kolarich’s letter stated,

among other things:

Evidently, Mr. Huffstutter had advised that the funds held in an

IRA account could be transferred to the pension and profit

sharing account and the IRS is reviewing the transaction. 

Kohl, 977 S.W.2d at 531.

On May 1, 1990, Kohl filed a legal malpractice suit against Huffstutter and Dearborn &

Ewing alleging that they committed malpractice in connection with the profit sharing plan in

various particulars. The trial court, in holding that the statute of limitations barred the claims
11

pertaining to the rollover and contributions to the profit sharing plan, noted that the October 24,

1988 letter from Kolarich indicated that both Kohl and Kolarich were aware of the problem and

it was so severe that Kohl was changing law firms.

T h e Kohl C our t began by r e i t e r a t i n g t he t w o - p r ong r u l e ar t i cul a t ed i n Carvell, supra. Id. at 532. I n

d i s c uss i n g t he ac t ual i n j u r y pr ong, t he Court st a t ed t hat “[ a ] n act ual i n j u r y m ay al so t ake th e fo r m o f th e p l a i n tiff b e i n g

for ced t o t ake som e act i on o r ot herw i se s uff er ‘ som e act ual i ncon venience, ’ s uch as incu rri n g an ex p e nse , as a resu l t

of t he defendan t ’ s negli gent or w rongful act . ” Id. M o r eover , t he Court st a t ed:

A pl a i n t i f f m ay not , of cour s e , del ay f i l i ng sui t unt i l al l t he i n j u r i ous e f f ect s or

consequ ences o f th e al l eged w r ong ar e ac t ual l y know n t o t he pl a i n t i f f . A llo w i n g

suit t o be fi l ed on ce al l t he i n j uri ous eff ect s and cons equenc e s ar e know n w oul d

def eat t he r a t i onal e f o r t he exi s t ence of st a t u t e s of lim ita tio n s , w h i ch i s t o avoi d

the u n c ertai nti es a n d bu rde ns inh eren t i n p ursu ing a n d de fen ding stal e c lai m s .

Id. at 533 ( c i t a t i ons om i t t ed) . 

A s for t he fact s bef ore t hem , the Court noted that the Kohls needed only to be aware of facts

sufficient to put them on notice that an injury had been sustained as a result of erroneous advice,

and that Kolarich’s letter established that the Kohls had notice of a problem in this regard. The

Court found that the inquiry by the IRS was sufficient in itself to satisfy the injury prong of the

discovery rule, and that Kolarich’s letter of October 24, 1988 to the law firm satisfied the

knowledge prong. The Court said:

The plaintiffs [Kohl] suffered an actual injury for purposes of

the discovery rule when they began to incur expenses, or at least

had to take some action, as a result of the defendant’s negligent

advice. This would have been on October 19, 1988 when their

accountant had to respond to the IRS’s request for information

after it noted a conflict between the amount reported by the

plaintiffs on their tax returns and the amounts reported by payers.

The plaintiffs’ arguments to the contrary notwithstanding, the fact

that the IRS had not taken any formal action against the Kohls as

of that date, such as filing suit against them or issuing a

deficiency notice, is largely irrelevant because, as noted above, it

was unnecessary for the plaintiffs to have suffered all of the

injurious effects or consequences of the defendant’s negligence

in order for the statute to begin running. 

977 S.W.2d at 533 (emphasis added).

I n t he i nst ant case, B rads on co n t ends t hat i t di d no t suf fer fr o m a “l egal l y cogni zabl e i n j u r y” unt i l t he t r i a l cour t

ent ere d an order di s m i s s i ng it s l i en i n t ere s t i n t he S hel by T i s s ue proj ect on Jun e 11, 1996. Bradson clai m s t hat i t w a s

i m poss i b l e for it to kn o w w h e ther it ha d su ffered a n injury un t i l i ts a lte r nat i ve cl a i m s r e l a t ed t o t he Shel by Tis sue

l i t i gat i on w ere res o l ved. Law Fir m ’ s R esponses t o R equest for A d m i s s i ons i ncl udes t he fol l o w i ng:

REQ UEST NO. 8 : A d m it th a t, a s a r e s u l t of at t orney Jo s e p h C rab tree ’ s

failu r e t o per f ect t h i s l i en, B r ads o n l ost i t s r i ght s t o as s e r t a l i en aga i nst t he Shel b y
12

T i s s ue P roj ect .

R E SPO N S E NO. 8 : D eni ed. It i s adm i t t ed t hat C hancell or Peet e has r u l e d t hat

t h e lie n w as n o t per f ect ed but t he D e f endant s unde r s t and t hat t he r u l i ng i s on

appeal by t he P l a i n t i f f . T he D efe ndan t s as ser t t hat t he pos i t i on t aken by Pl a i n t i f f

w i l l be s ust a i ned.

B r ads o n ar gues t hat t h i s a d m i s s i on dem onst r a t e s t h e par t i e s ’ bel i e f t hat B r ads o n w oul d pr evai l i n t he under l y i ng act i on.

The evidence unequivocally demonstrates that Bradson was aware that the Defendants

may have been guilty of negligence at least as early as 1994. Moreover, from a review of the

record, it appears that Bradson suffered an “actual” or “legally cognizable” injury at the time the

Law Firm allegedly failed to perfect the lien. This is apparent by its own attorney’s statements

during the summary judgment proceedings which were as follows:

Bradson knew itNow, had at the point of time in March of 1994, claim against the Law Firm for malpractice by the failure

or at least the alleged failure of the Law Firm to perfect the lien in the Shelby

Tissue project. That’s why I don’t think there is a Carvell issue here. They were

aware of the claim, they were aware who did it, they could have sued at that

point.

* * *

Right. Now, and but for the March 1994 Agreement, we

would have had to have sued them by May 6th. We would have,

and we had the Complaint prepared, there’s no - everybody knew

the facts. The only thing, why would we have sued them, because

the first thing they would have done is come in and say, stay this

litigation because the amount of damages is uncertain. . . .

Furthermore, as with the plaintiffs in Kohl, Bradson suffered an actual injury when they

were “forced to take some action.” Kohl, 977 S.W.2d at 532. As the preceding statement

reveals, Bradson had hired an attorney and had prepared a complaint. They had suffered “some

actual inconvenience.” Kohl, 977 S.W.2d at 532. While Bradson contends that they did not

suffer an actual injury until June 11, 1996 when the trial court dismissed their claim, “allowing

suit to be filed once all the injurious effects and consequences are known would defeat the

rationale for the existence of statutes of limitations.” Kohl, 977 S.W.2d at 533. Bradson

suffered an actual injury well before June 11, 1996 and was aware that Law Firm was the cause.

Thus, the statute of limitations has run, and, consequently, the trial court was correct in granting

summary judgment to the Defendants.

Accordingly, the order of the trial court granting summary judgment to the Defendants

is affirmed, and the case is remanded to the trial court for such further proceedings as may be

necessary. Costs of appeal are assessed against appellant.

_________________________________

W. FRANK CRAWFORD, 

PRESIDING JUDGE, W.S.
13

CONCUR:

____________________________________

HEWITT P. TOMLIN, JR.

SPECIAL JUDGE

DAVID R. FARMER, JUDGE (Not Participating)