# FILED February 16, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

______________________________________________ BRADSON MERCANTILE, INC., Plaintiff-Appella

nt, Vs. Shelby Circuit No. 79449-1 C.A. No. 02A01-9710-CV-00272 JOSEPH H. CRABTREE, JR., Individually; SHUTTLEWORTH, SMITH, McNABB & WILLI AMS, A Partnership; KENNETH R. SHUTTLEWORTH, Individually; GARY K. SMITH, Individuall y ; LELAND McNABB, Individually; BRUCE E. WILLIAMS, Individually; ROBERT L. SABBATINI, P.C.; and ROBERT H. HARPER, Individually, as Partners of the Partnership, Defendants-Ap

pellees.

______________________________________ _____________________________________ _ FROM THE SHELBY COUN TY CIRCUIT COURT THE HONORABLE WI

LLIAM B. ACREE, JR. Wyatt, Tarrant, & Combs; Glen G. Reid, Jr. and

Ross Higman of Memph

is For Plaintiff-Appellant Glassman, Jeter,

Edwards and Wad

e, 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., S ENIOR JUDGE DAVID R. FARMER,

JUDGE (Not Participating) This case is before t he Court on remand from the Supreme Co

urt for this Court “

to reconsider

it’s opinion in light of [the Supreme Court’s] recent decision i n John Kohl & Co. P.C. v. Dearborn & Ewing .” The Court, pur suant 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 a

ll individual defen

dants 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 19 80s and early 1990 s, Bradson, as a subcontractor, provided labor for two construction projects in Shelby County: the Mapco project 1 and the Shelby Tissu e project. When it was not paid for i

ts participation in th

ese projects,

Bradson retained Defendant/Appellee Joseph H. Crabtree of the law firm Defendant/Appellee Shu ttlewor th, 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 l earned that the lien on the Mapco project was
never perfected. In an attempt

to resolve the disp

ute without litigatio

n, the parties ent

ered into a “Tolling Agree

ment” on October

14, 1993. This agre

ement states in re

levant part: Bradson may have and

asserts a claim against Crabtree and the Law Firm for

brea ch of contract, legal malpractice, and/or neg ligence arising out of the representation by Crabtree and th e Law Firm of Br adso n relating to Brads on’s claim agains

t MT Mechanical Contract ors, Inc. and the perfection of a Mechanics and Materialmen’s Li

en involving prope

rty of MAPCO Petro leum , 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 Fir m have advised thei r

malpractice insurance carrier of the

claim and desire

additional time to se

ttle or reconcile the claim of Bradson; and In order to provide the parties with a per iod of time to ende avort o settle or reconcile the issues, Crabtree and the Law Fir m agree to extend and waive and otherwise toll any a nd al l limitation periods or statutes of repose, both legal and equitable, including but not limited to TCA §28-3-104, a pp licable to any and all causes of action which Bradson m ay have or may assert against Crabtree and/or theLaw Firmand/or its Partner s, 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 P ar tners, agents and employees hereby covenant and agree that they w

ill not, in any way, in

response to or in

defense of an y action brought against them or any of them by Bradson relating to the Representation raise the defense of any s tatute of limitation or of repose (legal or equitable) to any claim asserted by Bradson against Cr

abtree and/or th

e Law Firm, its Partn

ers, agents and/or employees relating to the Representation. Meanwhile, Law Firm had filed an acti on on behalf

of Bradson with regard to the Shelby3 Bradson’s brief s tates that on Dece

mber 17, 1993, Shelb

y Tissue filed a Mot

ion 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 r

ecord and, thus, w

e do not consider th

em on appeal. Ten

n. 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 fi led a Lien Credito

rs’ Bill on behalf of several lien creditors, including Bradson. Subsequently, Bradson discovered that Law Firm may have faile d 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 t ime prescrib ed 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 o wner in accor d with T.C.A. § 66-11-145.” On February 14, 1 994, the parties entered into an “Extension of Tolling Agreement.” This agreement st

ates in relevant

part: This Agreeme

nt 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 reconc

ile certain issues that may exist as heretofore delineated in the original Tolling Agreement and, because of additional matt ers that may have arisen, the parties are desirous of extending the original Tolling Agreement throu gh May 6, 1994, purs

uant to the terms an d conditions of the original Tolling Agreement. All other provisions in the original Tolling Agreement shall continue to be applicable, with the tolling period being extendedfrom 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 p

art of the origina

l Tolling Agreemen

t. 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 c

laims 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 o f Bradson by said Lawyers relating to a

project commonly identified as “Shelby Tissue” on which Lawyers agreed to and did perform and render

certain servic

es and certain w

ork 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 rel eased by this Agreement.4 Although the trial c ourt did not explain

its reasoning, May

6, 1994 was the dat

e 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 per

fect its mechanic ’s and materialm en’s lien, i t had no protection under the Lien Creditors’ Bill. Bradson timely filed a Notice of Appeal from this order. On June 26, 1996, Brad son filed the lega

l malpractice Comp

lain t against L aw Firm. Both parties filed motions for summary judgment. Finding that the statute of limitations expired
on May 6 , 1994, t he trial court gra nted summary judgme

nt to the Law Firm. 4 Bradson has appealed, and pr

esents three issu

es for review, a

s stated in its brief

: 1. Did the Circuit

Court err in allowing the law firm to raise the statute of limita

tions as a defense when the law firm had expre ssly wa ived the statute of limitations in the Tolling Agreement and th

e Extension of Toll

ing Agreement. 2. Did the Circuit Court err in granting summary judgment to the law firm on the basis of the statute of l imit ations when the law firmfurther indicated its int e ntion to waive the statute in the Release and Inde

mnification Agre

ement? 3. Did the Circuit Courterr in granting summary judgment to the law firm on the basis of the statute of limitations when there was no evi dence in the record to establish when the cause of ac tio n 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 o f material fact

and that the moving p

arty 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 evide

nce 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 mov ing party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affi davi ts or discovery ma terials, that ther

e is a genuine, material f

act di spute to warrant a trial. In this regard, Rule 56.05 provides that the nonmoving party cannot simpl y 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 appr opriate when the

facts and the legal conclusions drawn5

from the facts reasonab

ly 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 gr ant of summary judg

ment. Bain , 936 S.W.2d at 622. Therefore, our review of the trial court’s

grant of summary ju

dgment is de novo on the record before this Court. Warren v. Estate of Ki

rk , 954 S.W.2d 722, 723 (Tenn. 1997). The first two issues presented for review require the interpretat ion of the agreemen

ts referred to. The cardinal

rule in th e 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 it s plain, ord inary, and popular sense. Bob Pearsall Motors, I nc. v. Regal Chrysle

r-Plymouth

, Inc. , 521 S.W.2d 578 (Ten n. 1975). In constr

uing contracts, th

e words expressi

ng 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 C ourt must interpret it as written rather than according to the unexpressed intention of one of the par ties. 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 exami

ned the tolling agreement and the agreement for the extension thereof. In neither agreem

ent do we find ref

erence made to

the Shelby Tissue project, nor do we find that t he language makes any indication that the Shelby Tissue project was intended to be include d in the tolling agreement relied upon by Bradson. As to the Release and Indemnific ation Agreement,

the usual and ordinary meaning of the language used merely indicates an intention to make it clear tha

t the release doe

s not include any c

laim relating to

the Shelby Tissue project. We fin d no language in this agreement that would indicate an intention to waive or toll any statute of limitatio

ns. Appellant’s firs

t two issues are wit

hout 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 ices 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. Jeffers

on , 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 en: 1) the d efen d a nt’s ne gli g en 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 date8 A corporation, Fabricating, Inc., was also listed as a defendant. This suit was

eventually dismisse

d, but a differen

t suit was later fil

ed in Texas. 7 a t w h ich 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 zable 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 ice 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 ic 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 ich 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, never theless, held that

the cause of ac

tion 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 com 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 ices 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. Heiske ll, 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 L im itations 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 d ebate , 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 at10 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. De arborn & 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 accoun t funds we re barred by the one-year statute of limitations. The Court of Appea ls affirme d the ju dgment of the trial court, and the Supr

eme Court affirmed th

e two lower court

s. The Courtnoted that i n September of 198 8, the Kohls rece ived a letter fro

m the IRS informing them of some proble ms with their

1986 tax return and requested further information concerning the statements in the return. The Kohls ’s accountant re sponded to the lette

r 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 proble ms withthe IRS concerning t he pension and profit sharing plans. Mr. Kolarich’s letter stated, among other things:

Evidently, Mr. Huffstutter had advised t hat the funds held in an IRA account could be transferred to t he pension and profi

t 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 i n conn ection with the pro fit sharing plan in various particulars. The

trial court, in hold

ing that the sta

tute of limitations barred the claims11

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 th

at Kohl was chang

ing 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 ense , 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 tha

t the Kohls needed only to be aware of facts sufficient to put them on notice

that an injury had b

een 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 inqui ry by the IRS was suf

ficient in itself

to satisfy the injury prong of the discovery rule, a nd that Kolarich’s letter of October 24, 1988 to the law firm satisfied the knowledge prong. The Court said:

The plaintiffs [Kohl] suffered an a ct ual injury for purposes of the discovery rule whe

n they began to incur expenses, or atleast had to take some

action, as a result of the defend ant’s negligent advice. This would have been on October 19, 1988 wh en their accountant had to respond to the IRS’s request for information after it noted a conflict between the amo unt reported by the plaintiffs on their tax returns and the amounts repor

ted by payers. The plaintiffs’ argu

ments to the contr

ary notwi thstanding, the fact that the IRS had not

taken any formal action against the Kohls as of that date, such as

fili ng suit ag ainst them or issuing a deficiency notice, is largely irrelevant because, as noted above, it was unnecessary for the pl aintiffs 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 y12 T i s s ue P roj ect . R E SPO N S E NO. 8 : D enied. 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 appealby 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 o

f negligence at l

east as early as

1994. Mo reover, from a review of the record, it appears that Br

adson 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 state ments during the summary

judgment proceed

ings which were a

s follows: Now, t the point of time in March of 1994, Bradson knew it

had a claim against the Law Firm for malpractice by the failure or at least the alleg

ed failure of the

Law Firm to perfe

ct the li en in the She lby Tissue project. That’s why I don’t think there is a Carvell

issue here. They were aware of the clai m, they wer e 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 May6th. We would have, and we had the Complaint prepared, there’s no - everybody knew the facts. The only thing, why w ould 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 statem en t 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 contend s that they di d not suffer an actual injury until June 11, 1996 when the trial court dismissed their claim, “allowing suit to be filed on ce all th e injurious effects and consequences are known would defeat the rationale for the existence of statutes of limitations.” Kohl , 977 S.W .2 d 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 t

he 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 a

ssessed against a

ppellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.13

CONCUR:

____________________________________ HEWITT P. TOMLIN, JR. SPECIAL JUDGE DAVID R. FARMER,

JUDGE (Not Participating)