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 ground 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 injuries2

filed by Mr. Ogle on behalf of Mrs. Farrow an d was also dismissed because it was 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 malprac tice act ion. August 17, 1995 The medical malpracti ce complaint i s filed. September 15, 1995 The m edica l malp ractice defen dantsfile motion s for sum

mary ju

dgment. September 27, 1995 The D efendan t mails th e motions 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 mary judg

ment. December 15, 1995 The T rial Court grants the 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 malprac tice compla 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 occurred 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 the 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 attorney a

nd the injury ca used by th e atto rney ' s neglig ence. Security Bank & Trust v. Fabricating, Inc. , 673 S.W .2d 860 , 865 (Tenn.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, isin 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 the office on the 20th [of Decem

ber 1995] tha t made you 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 . Weren'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 you 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 conversatio 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 there 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 we decided 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 October? 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 times 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 was a statu t e of limitations. Q What did you already know about what t h e statute of limitations w as? A That you hav e a year. Q From the time it happe ned? A Yes. Q Oka

y. So, i n Sep tember, 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 . 26 Q In answer to Nu mber 1 5 to your 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 wasfully

awa re of M

r. Og le's negligence and t he injury she sustained by be ing unable to pur sue her underlying su it.

For the foregoing reasons the judgment of the Trial Court isaffirmed and the

cause re

manded 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.