1

Mr. Ogle advan ced two defenses--the statute of limitations and the 

negligence of Mr. Ogle caused Mrs. Farrow no damage because the underlying

suit was without merit. The Trial Judge sustained the fi rst defense and

overruled the second.

FILED

August 18, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE CO URT OF A PPEALS 

AT KNOXV ILLE

JEANNIE F ARROW ) JEFFERSON COUN T Y

 ) 03A01-9711-CV-00501

Plaintif f-Appellant )

)

)

v . ) HON. JOHN K. WILSON,

) JUDGE

) (Sitting by Interchange)

CARL R. OGLE, J R . )

 )

Defendant-App ellee ) AFFIRMED AND REM ANDED

LARRY C. VAUGHAN OF KNOXV ILLE FOR AP PELLANT

CARL R. OG LE, JR., Pro Se

 O P I N I O N

 God dard, P.J. 

In this legal m alprac tice sui t, Jean nie Fa rrow appe als

a summ ary judgment rendered against her in favor of Carl R. Og le,

Jr., on the gro und th at her c laim w as bar red by the ap plicab l e

statute of limitations. 1

 Ironically, the underlying suit which

gave rise to the present litigation was one for personal injuries
2

filed by Mr. Ogle on be half of Mrs. Farrow an d was also dismissed

because it w as barred by the statute of limitation s .

Mrs. Farrow's single issue on appeal i nsists the Trial

Court was in error in "ruling as a matter of law that there was

no issu e of fac t to be d ecided . "

The dates of event s pertine nt to the di spositi on of

this appeal we will now list chronologi cally:

August 13, 1994 The Plaintiff fel l from a chair following an

MRI a nd sustained injuries.

August 13, 1995 The sta tute of lim itations ex pires for a

med ical m alprac tice act ion. 

August 17, 1995 The medical malpracti ce complaint i s filed.

September 15, 1995 The m edica l malp ractice defen dants file

motion s for sum mary ju dgme nt.

September 27, 1995 The D efendan t mails th e motio ns for sum mary

judgment to the Pl aintif f and advises of the statut e of

l i mit ati ons pro ble m .

October 4, 1995 The s tatute o f limita tions p roblem is

discussed between the Plaintiff and the D efendant at an in-office

meeting.

November 27, 1995 The P laintiff signs a n affidav it in an effo r t

to defeat the mo tions for su m m ary judg ment.

December 15, 1995 The T rial Cou rt grants th e defend ants sum mary

judgment in the medica l malpracti ce action.

December 20, 1995 The Defendant advises the Plaint iff tha t the

medical malpract ice acti on was dismissed.

January 3, 1996 The order granti ng summary judgment in the

medical malpract ice acti on is entere d .

January 13, 1996 The D efendant w rites the Plaintiff to advise

of entry of the o rder and to a dvise of appe al deadlines.
3

December 17, 1996 The in stant le gal m alprac tice co mpla int is

filed.

Before address ing the is sue raised, we note that the

complaint in t he underlying s uit was not ti mely filed be cause one

of Mr. Ogle's employe es either misread or mistr anscribed t h e

information contained in the medical records and report ed that

the injuries to Mrs. Farrow occu rred on August 18, 19 94, rather

than A ugus t 13, 19 94. 

Under T ennessee ca se law, in legal m alpractice cases,

as in other t ort cases, the discover y rule, which t riggers t h e

statute of limitat ions, obtai ns. The Court of Appeals case of

Caledonia Leasing v . Armstrong, Allen , 865 S.W.2d 10

(Tenn.App.1992), specifi es when a legal malpr actice caus e of

action accrues, and in doing so uses the f ollowing language (at

page 13 ) :

A cause of action f or legal malpr actice acc rues and the

statute of limitat ions commences to run when (1) t h e

attorney has committed negligence, (2) t he client has

been injure d by th at neg ligenc e, Ameraccount Club, Inc .

v. Hill , 617 S.W.2d 876, 878-79 (Tenn.1981), and (3)

the clie nt disc overs , or in th e exer cise of r eason able

care and dili gence, should hav e discovered, the

existence of the fact s constit uting negli gence by the

attor ney a nd th e inju ry ca used by th e atto rney ' s

neglig ence. Security Bank & Trust v. Fabricating,

Inc. , 673 S.W .2d 860 , 865 (Te nn.198 3).

A rec ent op inion of this C ourt, Brown v. Davidson , an

unrep orted c ase filed in Na shville on D ecem ber 5, 1 997, is in

accord.
4

The critical que stion in this appe al is when M rs.

Farrow knew of Mr. Ogle's negligence and the injury she sustained

thereby.

In her discovery deposition M rs. Farrow testified

regarding a conversation she had with Mr. Ogle on October 4,

1995, shortly after receiving his let ter of September 27, as

follows:

Q But I'm asking you what f acts were ther e, or

what w as there in this visit to th e office on the 20th

[of Decem ber 1995] tha t made yo u feel for the first

time that there was a problem with the case?

A That th e statute o f limitation s ran ou t .

Q Okay . Were n't you a ware o f that befo re that?

A Yes.

Q Okay . And I think in y our interr ogatory

answ ers -- an d you can lo ok if yo u nee d to -- b ut did

you n ot get a letter in Septe mbe r of 19 95 --

A Yes.

Q -- indicating that there was a p roblem with

the statute of limitation s ?

A Yes.

Q Oka y. An d did w e not h ave a conv ersatio n in

my o ffice w ithin ju st a ver y few days o f that le tter --

A Yes.

Q -- talking ab out that?

A Yes.

Q Okay . Did yo u think th ere wa s a prob lem w ith

the case at t hat time, at that time i n September or

early O ctober?
2

She means September 27.

5

A No. Well, yes, bec ause the dates were wrong

on the lawsuit in the first place.

Q Okay.

A But w e decid ed to a ppea l .

Q I understand. What did you think was wrong

with the first case at that point in time, in September

or Octo ber?

A The dates.

Q Okay.

A The M.R.I. was perfor med on the 13th. The

lawsuit st ated that i t was performed on the 1 8th of

Augu st.

Q Did you tell me at that time tha t those dates

were wrong?

A Yes.

Q Okay.

A We to ld you s everal tim es those d ates we r e

wrong.

Q Had we discussed prior to that ti me what the

statute of limitations was on a med ical malpractice

case?

A I suppo se I alread y knew there w as a statu t e

of limitations.

Q What did you already know about what t h e

statute of limitations w as?

A That y ou hav e a year.

Q From the time it happe ned?

A Yes.

Q Oka y. So, i n Sep temb er, late S eptem ber --

and I don't re member the date of the l etter. If you

wan t --

A Oh, it was September 20t h . 2
6

Q In answ er to Nu mber 1 5 to you r answ er to

int err ogat ori es - - so we' re o per ati ng un der same

inform ation - -

A Okay.

Q -- in the answer it says , "On or about

September 20, 1995 , via a letter from Carl R. Ogle,

Jr.,"

A Right.

Q Oka y. So, w hen y ou rec eived that let ter, did

you k now t her e was a pr obl em?

A Yes.

Q What d id you think the problem was?

A I knew w hat the proble m wa s .

Q What w as t he pr obl em?

A The problem was the stat ute of li mitations

ran out because the dates on the lawsuit were wrong.

It can be seen from the foregoing that no lat er than

Octo ber 4 , 199 5, M rs. Fa rrow was fully awa re of M r. Og le's

negligence and t he injury she sustained by be ing unable to pur sue

her und erlying su it.

For the foregoing reasons the judgment of the Trial

Court is affirmed and the cause re mand ed for co llection of c osts

below. Costs of appeal are ad judged against Mrs. Farrow and her

surety.

_______________________________

Hou ston M . God dard, P.J. 

CONCUR:
7

________________________________

Don T. M cMurray, J.

________________________________

Charles D. Susano , Jr., J.