1 Mr. Stoval l pl eaded gui lt y to one c ount of aggravat

ed robber y, t wo counts of aggravat

ed rape, two count s of agg rava ted k idna ping , and two cou nts of agg rava ted ass ault . Stova ll v. State , No

. 01 C0 1- 94 01

- CC

- 00 02 2, 19 95 WL 2997, at *1 (Te nn. Crim. Ap p. Jan. 5, 1995) (No Tenn. R. A pp. P. 11 application filed).



### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs N ovember 5, 1999 DAVID STOVALL v. CHRISTOPHER L. DUNN Appeal from the Circuit Court for Maury County No. 8593 Jim T. Hamilton, Judge

No. M1999-00200-COA-R3-CV - Filed June 11, 2002

This appeal involves a

state prisoner’ s civil rights action against a private lawyer a ppointed t

o represent him in a post-conviction proceeding. The prisoner filed suit against his former lawyer in the Circuit Court for

Maury Cou nty alleging that the lawyer, motivated by racial bias, had intentiona

lly deprive d him of an

opportuni

ty to seek appellate review of an adverse decision of the TennesseeCourt of Criminal Appeals and had refuse d to provide him with his case file. The lawyer moved for summary judgment on the ground that the prisoner’s complaint was barred by the sta tute of limitati ons. The t

rial cou rt granted the summa

ry judgme

nt, and the prisoner

has appealed. We have determinedthat the t rial cou rt erre d by gran

ting the su

mmary judgment bec ause the re is a genuine factual issue regarding whether the prisoner’s complaint is time-barred. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed
W ILLI AM C. K OCH , J R ., J., delivered the opinionof the court, in which B EN H. C ANTRELL , P.J., M.S., and P ATRICIA J. C OTTRELL , J., joined. David Stovall, Only, Tennessee, Pro Se. Christopher L. Dunn, Columbia, Tennessee, Pro Se. OPINION
I

. On January 6, 1992, David Stovall pleaded guilty to seven aggravated fe lony charge s, and the Circuit Cou

rt for Ma ury County

sentenc ed him toserve thirty-five years in state custody. 1 Mr. Stovall began attacking his guilty pleas soon after his incarceration at the Turney Ce nter in Hickman County. In August

1992, he filed a pro se petition for post-conviction relief in the Circuit Court for Maury County arguing that his pleas wereinvoluntary because he had been under the inf luence of m arijuana and Valium and because his public defender ha d not adequately explained the ple a2 The Circuit Court for Maury Coun ty denied M r. Stovall ’s motion for a delayed appeal on August 11, 1999. The Court of Criminal Appeals affi rmed this decisi on because Tenn. Code Ann. § 40-30-213 does not permit delayed app eals from the d enial o f po st-con viction petition s. Stoval l v. State , No

. M19 99

- 00 93 7- CC A- R3

- PC , 19 99 WL 126 192 6, at *1 (Ten n. Cr im. A pp. D ec. 29 , 199 9), perm. app. denie d (Te nn. M ay 1 5, 20 00)

.

3 Although not rel evant to t he iss ues raised in this ap pea l, we gather from Mr. St ovall ’s Tenn. Code Ann. § 41- 21-805 (1997) affi davit that he fi led asi milar

sui t aga inst

Mr. Dunn in t

he Cir cuit

Court f or Hickman Count y. 4 Tenn. Cod e An n. § 41 -2 1- 803 pr ovi des : “ Exc ept as ot her wis e pr ovi ded by l aw, an action that ac crue d w hile the pl aintiff

inmate was housed in a f acil it y operat ed by the depart ment [of corre cti on] sha ll be brought in t he cou nty in w hich the fac ility is locate d.” -2- agreem ent. At some point during 1993, t he trial c ourt appointed Chri stopher L . Dunn, a p rivate lawyer in Columbia, to represent Mr. Stovall in the post-conviction proceeding.
Mr. Stovall, who is an African-American, claims that he first met Mr. Dunn shortly before the August 18, 1993 evidentiary hearing on his post-conviction petition. He asserts that Mr. Dunn to ld h im on that oc casion “ I must tell y ou honestl y, I don’t particularly ca

re for b lacks who date ou tside their own

race, a nd I don’t

think you should expect too much to come out of this case. ” After the trial court dismissed Mr. Stovall’s petition on January 11, 1994, Mr. Dunn perfected an appeal on Mr. Stova

ll’s beha lf to the Tennessee Court of Criminal A

ppeals. Despite the fact that the Court

of Criminal Appeals filed an opinion affirming the dismissal of his post-conviction petition on January 5, 1995, Mr. Stovall asserts that Mr. Dunn never informed him of the appellate decision. He claims that Mr. Dunn never re sponded to his repeated telephone calls and correspondence regar ding the status of

his appeal or to his repeated requests for a c opy of his file. Finally, on November 18, 1998, Mr. Stovall wrote the appellate court clerk regarding the status of his appeal. The clerk responded by sending both Mr. Stovall and Mr. Dunn a copy of the case history ind

icating th at the Cour

t of Crimin al Appeals ha d affirm ed the dis missal of h

is postconviction petition on January 5, 1995. The clerk also informed Mr. Stovall that he could obtain a copy of the Co urt of Crimina l Appeals’ opinion from Mr. Dunn. According to Mr. Stovall, Mr. Dunn neither contacted him nor sent him the Court of Criminal Appeals’ opinion or his case file.
Mr. Stovall took two actions after discovering that the Court of Criminal Appeals had long since disposed o f his appe al. First, h e fil ed a motion in the trial court seeking a delayed appeal pursuant to Tenn. Code Ann. § 40-30-213 (1997). 2 Second, on March 5 , 1999, he filed suit against Mr. Dunn in the Circuit Court for Maury County alleging that Mr. Dunn had violated 42 U.S.C. §§ 1981 and1982 by intentionally depriving him of his right to seek review of the Court of Criminal Appeals ’ January 5, 1995 opinion and by r efusing t o provide him his case file because of his race. 3
Mr. Dunn responded to Mr. Stovall’s complaint with a motion for summary judgment asserting that the complaint was barred bythe one-year statute of limitations in Tenn. Code Ann. § 28-3-104(a)(3) (2000). Thereaft er, Mr. St ovall moved for a change of venue to H

ickman Cou

nty basedon his discovery of Tenn. Code Ann. § 41-21-803 (1997). 4 Following a hearing on May 10, 1999, which Mr. Stovall ap parentl y did not at

tend, the trial court fi le d an order on May 17, 19995 For the pur pose of thi s opi nion, we assume t hat t he tr ial court

impli citly deni ed Mr. St ovall ’s moti on to cha nge venue because it proceeded to add ress Mr. Dunn ’s summary judgment moti on on it s meri ts. Accordi ngly, we construe the M ay 1 7, 19 99 o rder as fina l beca use, e ither ex plicitly o r imp licitly, it di s po s ed of al l t he cl ai ms betwe en the p arties. -3- granting Mr. Dunn’s summary judgment motion. The trial court never specifically addr essed Mr. Stovall’s motion for change of venue. 5
Mr. Stovall has perfected an appeal to this court. He asserts that the trial court erred by granting the summary judgment because of his pending motion for change of venue and because Mr. Dunn’s failure to notify him of the January 5, 1995 opinion by the Court of Criminal Appeals tolled the running of

the statut e of limita

tions. For h

is part, Mr. Dunn asserts that the trial court co rrectly determined that Mr. Stovall’s complaint was time-barred. He also argues for the first time that he is immune from suit pur suant to Te nn. Code A

nn. § 8-14 -209 (199 3) beca use he wa s acting a s a “public defender” as defined in Tenn. Code Ann. § 40-14-201 (1997).
II. M R . D UNN ’ S B ELATED I MMUNITY D EFENSE We turn first to Mr. Dunn’s cl aimthat we should dismiss Mr. Stovall’s appeal because he is immune from suit. He first raised th is claim in a motion to consider post-judgment facts pursuant to Tenn. R. App. P. 14. We denied this motion on November 12, 1999, pointing out that the motion more properly involved supplemental argument rather than supplemental fa cts. Mr. Dunn has now included this argument in his brief. By making this argument, Mr. Dunn is undertaking to rely on a defense that he fa iled t o present to the trial court. Because o ur jur isdiction is appellate only, Tenn. Code Ann. § 16-4- 108(a)(1) (1994); Smith v. Harriman Util. Bd. , 26 S.W.3d 879, 887 (Tenn. Ct

. App. 2000), we customar ily decline to consider arguments that were not first presented to the trial court and that are being raisedfor the first time on appeal. Simpson v. Frontier Cmty. Credit Union , 810 S.W.2d 147, 153 (Tenn. 1 991); Williams on C ounty Bro ad. Co. v. I ntermed ia Partner

s , 987 S.W.2d 550, 553 (Tenn. C t. Ap p. 1998); Sweeney v. State Dep’t of Transp. , 744 S.W.2d 905, 906 (Tenn. Ct. App. 1987). Accordingly, we decline to consider Mr. Dunn’s immunity argument based on Te nn. Code Ann. §§ 8-14-209 and 40-14-201.
III.

M R . S TOVALL ’ S B ELATED O BJECTION TO V ENUE We turn next

to Mr. Stovall’s a ss ertion that the trial court should not have granted the summ ary judgment because the proper venue for his lawsuit was H ickman County where T urne y Center is located rather than Maury County where Mr. Dunn resides. While it is unlikely that Tenn. Code Ann. § 41-21-803 appl ies to sui ts by state prisoners against

persons w

ho are not state employees for conduct unrelated to the operation of the institution where the prisoner is housed, we neednot address this issue now because both Mr. Stovall and Mr. Dunn h ave waived their opportunity to question venue in this case.6 The purpose of the t hirt y-day re striction on offensive sum mary jud gme nt motions is obvious. The d rafters of the ru les des ired to prev ent a plai nti ff f rom placi ng the ca se at issu e un til the de fend ant h as be en af ford ed a r easo nab le opp ortunity to d eterm ine wh at the case is abo ut and to assert appro priate defen ses. -4- Mr. Stovall’s claim against Mr. Dunn involves a transitory cause of action. In a proceeding involving a transitory cause of action , venue is no thing more than the personal privilege of the defendant to be sued in particular statutorily-defined counties. Turpin v. Conner Bros. Excavating Co. , 761 S.W.2d

296, 297 (Tenn. 198 8); Corby v. M atthews , 541 S.W.2d 789, 791 (Tenn. 1976). In these sorts of cases, venue is not equat ed with subject matter jurisdiction. Accordingly, a defendant will be deemed to have waived improper venue by failing to contest it in the first pleading. Tenn. R. Civ. P. 12. 08; Meighan v. U.S. Sprint Communications Co. , 924 S.W.2d 632, 639 (Tenn. 1996). Similarly, a plaintiff will be deemed to have waived an objection to venue simply by filing suit in a county about which it later objects. Corby v. M atthews , 541 S.W.2d at 791.
Mr. Stovall filed his suit against Mr. Dunn in M aury County, thereby waiving any later objection to improper venue in Maury County. Similarly, Mr. Dunn moved for a summary judgment basedon the statut

e of limita

tions without object

ing to venue. He like

wise lost h

is opportuni

ty to take issue with ven ue. Because both parties have waived their r ight to raise the venue issue, we conclude that the trial court did not err by proceeding t o address Mr. Dunn’s pending summary judgment motion.
IV.

M R . D UNN ’ S S TATUTE OF L IMITATIONS D EFENSE As a final matter, we turn to the summary dismissal of Mr. Stovall’s complaint against Mr. Dunn on the gro

und that it w as filed a

fter the running of

th e st atute of

limitations . Mr. Stova

ll advances two reasons why the trial court should not have granted the summary judgment. First, he assertsthat Mr. Dunn’s motion was prematurebecause it was filed within thirty days after he filed his complaint. Second, he asserts that the summary judgment was inappropriate because of genuine factual disputes regarding when his cause of a ction against Mr. Dunn accrued.
A.
We turn first to Mr. Stovall’s clai m premised on Tenn. R. Civ. P. 56.01 that Mr. Dunn’s summary judgment motion was premature because it was filed twenty- f ive days a

fter he filed his complain t. Mr. Stovall’s relia

nce on Te nn. R. Civ. P. 56.01 is misplaced because, by its own ter ms, the thirty-da

y restriction applie s only to “[ a] part y seeking to recov er upon a claim, co untercl aim, or cross-c laim or to o

btain a declarato

ry judgme

nt.” Whil e this limitation is mandatory, Craven v. Lawson , 534 S.W.2d 653, 65 5 (T enn. 1976), it is inapplicable to defensive summary judgment motions such as the one Mr. Dunn filed. 6 Accord ingly, Mr. Stovall’s a

rgument b ased on Tenn. R. Civ. P. 56.01 is without me rit. B.
Mr. Stovall’s secondargument based on the existence of genuine fa ctual disputes regarding Mr. Dunn’s statute of limitations defense has substa

ntially mor

e merit. Su

mmary judgments should-5-

no t be granted wh en genuine disputes regarding the material facts exist. Tenn. R. Civ. P. 56.04. Accordingly, we must examine the record to determine whether Mr. Dunn was entitled to a judgment as a matte r of law b ased on th

e undisput

ed fact s. 1.
A question of

material fact exists when reasonable minds differ regarding whether a material occurrence

happened. Conatser v. Clarksville Coca-Cola Bottling Co. , 920 S.W.2d 646, 647 (Tenn. 1995); Harrison v. Southern Ry. Co. , 31 Tenn. App. 377, 387, 21 5 S.W.2d 31, 35 (1948). If reasona ble minds could justifiably reachdifferent conclusions based on the evidence at hand, then a genuine question of

fact exists. Louis Dreyfus Corp. v. Austin Co. , 868 S.W.2d 649, 656 (Tenn. Ct. App. 1993). If, on the other hand, the evidence, and the infe rences to bereasonably drawn from the evidence, permit a reasonable person to reach only one conclusion, then there ar e no material factual disputes, and the issue may be disposed of as a matter of law. Webber v. State Far m Mut. Auto. Ins. Co. , 49 S.W.3d 265, 269 (Tenn. 200 1); Brown v. Birman Managed Care, Inc. , 42 S.W.3d 62, 66 (Tenn. 2001).
The party seeking a summary judgment bears the burden of demonstrating that no genuine dispute of material fact exists and that it is entitled to a j udgment a s a matter of law. Shadrick v. Coker , 963 S.W.2d

726, 731 (Tenn. 199 8); Pendleton v. Mills , ___S.W.3d ___, ___, 2001 WL 1089503, at

*4 (Tenn. Ct. App. 2001). Armoneit v. Elliott Crane Serv., 65 s.W.3d 623, 627 (Tenn. Ct. A pp. 2001). Once the moving party demonstrates that it has satisfied these require ments, the nonmoving party mus t show how Tenn. R. Civ. P. 56’s requirements have not been satisfied. Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997).
Mere conclusory ge neralizations will not create a genuine factual dispute suffici ent to preven t the trial court from granting a summary judgment. Fariello v. Rodriguez , 148 F.R.D. 670, 680 (E.D.N.Y. 1993); Cawood v. D avis , 680 S.W.2d 79 5, 796-97 (Tenn. Ct. App. 1984). The nonmoving party must convince the trial court that there are suff icient fac tual disputes to warrant a trial. The nonmoving party may carry its burden by (1) pointing to evidence either overlooked or ignoredby the moving party that creates a factual dispute, (2) rehabilitating evidence cha llenged by the moving party, (3) producing add itional evidence that creates a materia l factual dispute, or (4) submitting an affidavi t in accordance with Tenn. R. Civ. P. 56.07 requesting additional time for discovery. McCarley

v. West Quality Food

Serv. , 960 S.W.2d 585, 588 (Tenn. 1998); Byrd v. H all , 847 S.W.2d 208, 215 n. 6 (T enn. 1993 ); DeVore v. Deloitte & Touche , No. 01A01-9602-CH-00073, 1998 WL 68985, at *3 (Tenn. Ct. App. Feb. 20, 1998) (No Tenn. R. App. P. 11 application filed). Nonmoving parties who do not carry their burden face summary dismissal of

the challenged claim because, as our courts have repeatedly observed, the “failur e of proof c oncerning an essential element of a cau se of action nece ssarily r enders a ll other facts immaterial.” Alexand er v. Memphis Individual

Practic e Ass ’n , 870 S.W.2 d 278, 280 (Tenn. 199 3); Strauss v. Wyatt, Tar rant, Combs

, Gilbert & Milom , 911 S.W.2d 727, 729 (Tenn. Ct. App. 1995).
2.7 The reco rd d oes n ot refle ct that M r. Du nn f iled a w ritten m otion to w ithdra w a s cou nsel fo r M r. Stov all.

Matlock v. State , No. 01C01-9703-CR-0009 1, 1998 WL 265494, at * 4 (Tenn. Crim. Ap p. May 27, 1998 ) perm. app. denied ( Tenn. Dec. 7, 1998) (holdi ng that an at torney may withdraw to avoid fi ling a f rivolous appeal only after complying with Tenn. S. Ct . R. 14). Mr. Dunn appare ntl y did not fil e such amotion because he st ates i n his bri ef that he told M r. Stov all that he was wit

hdrawing dur ing a telephone cal l s hortl y aft er the Court of Criminal Appeals fil ed its opin ion.

8 Tenn. S. Ct. R. 8, D.R. 2-110 (A)(2) and E .C. 2-32 require a withdrawing lawyerto pr otect his or hercli ent by, am ong othe r thing s, deliv ering the clien t’s pap ers to th e clien t. S eve ral co urts have applied t hese and other disciplinary rules in case s invo lving priso ners. See , e.g. , Fields v. Bagley , 275 F. 3d 478, 484 (6th Cir. 2001) (hol ding thatappointed cou nsel violated E.C. 2-31); Nolan v. Foreman , 665 F.2d 738, 742-43 (5t h Cir. 1982) (f

indi ng a viol ati on of D .R. 9- 102 (B)(4 )); Summ ers v. Thompson , 444 F. Supp. 312 , 314 -15 (M .D. T enn . 197 7) (re tained attorn ey); State v. Maddagan , 19 P .3d 1 289 , 129 3 (H aw . 200 1); Wa rd v. S tate , 740 S .W.2 d 79 4, 797 (Tex. C rim. A pp. 19 87). Th us, Mr. Stoval l may have stated a claim for viol ation of 42 U.S. C. § 1982 if he had a prote ctibl e property i nterest in his legal pape rs. Murray v. Nati onal Broad. Co. , 844 F.2d 988 , 994 -95 (2d Cir. 19 88) . Mo reov er, if M r. Stov all has a pro perty right to his fil e, Mr. Dunn could not avoid s urrende ring t

he fi le by a sser

ti ng that Mr. Stova ll could not

have paid him the costs of copying the fi le si nce the la wyer must pay copying c osts when he volunt ari ly wit hdraws f rom repres enti ng a client. Greig v. Mac y’s Northe ast , 1997 U .S. Dist. LEX IS 228 41, a t * 7 (D .N.J. N ov. 1 7, 19 97) ; In re Kaufman , 567 P.2d 957 , 960 (Nev . 1977).

9 We do not agree that M r. Stovall’s cause of action accrued on February 10, 1995. In J anuary 1995, Tenn. R. App. P. 11(b) require d parti es to f il e the ir appli cati on for pe rmiss ion t o appeal withi n thi rty ( 30) days aft er the fi li ng of the intermediate appell ate court ’s j udgmen t unles s a ti mely petition for rehearing had been fi led in the in term ediate app ellate cou rt. Perso ns w ho d id no t file their Ten n. R. App

. P. 11 ap pl i ca t i on ora mo t i on f oran ex t en s i on of t i me with in thirty days after t he entry of the intermediate appellate court’s judgmen t lost their right t o seek discretionary review by t he Te nn es s ee Su pr eme Court. Accordi ngly, si nce nei ther Mr. Stova ll nor Mr. Dunn fil ed a t imely pe ti ti on for reheari ng in the Court of Criminal Appeals, the deadl ine f or fi li ng a Tenn. R. App. P. 11 appli cati on would have been Febr uary 6, 1995, not February 10, 1995. -6- The parties’ pleadings and motions provide the court with guidance for determining which facts are material and whether these f act s are in dispute. Thus, we turn first to Mr. Stovall’s complaint and Mr. Dunn’s summary judgment motion. While Mr. Stovall’s complaint lacks clarity, he appears to be asserting that Mr. Dunn violated his constitutional rights by (1) depriving him of his opportuni

ty to requ est the Te

nnessee Supreme C ourt toreview the Court of Criminal A

ppeals’ disposition of his appeal; (2) refusing to file a Tenn. R. App. P. 11 application on Mr. Stovall’s behalf; 7 and (3) r

efusing t o surrender Mr. St

ovall’s c ase file

to prevent him from filing a pro se Tenn. R. App. P. 11 application. 8 Wh ile the record is not sufficiently developed for us to determine the merits of any of these

claims, w e have d

etermined that the

y appea r to state claims und

er 42 U.S. C. §§ 1981 and 1982.
Mr. Dunn argues that the substance of Mr. Stovall’s allegations is irrelevant bec au se the statute of limitati ons barr

ed Mr. Stov all from asse

rting any claims ag ainst him. He asser ts that Mr. Stovall’s cause

of action accrued on February 10, 1995, whe n the Court

of Criminal Appeals issued its mandate

and, ther efore, that Mr. Sto vall lost th e right to sue Mr. Dunn when hefailed to file suit by February 9, 1996. 9 Mr. Stovall responds that the statut e of limita

tions was t

olled bec ause he d

id notlearn that the Court of Criminal Appeals had decided his appeal, despite his diligent effortsto obtai n a st atus upda

te from Mr . Dunn, un

til the app ellate c ourt cle rk sent him a copy of

his case history on November 20, 1998.10 Tenn. Code Ann. § 28-3- 104(a)( 2) (mal practice acti on s aga inst a tt orneys) ; Tenn. Code Ann. § 28-3- 104

(a)(3) (civil actions for compen satory and pun itive damages brou ght under the federal civil rights s tatutes).

11 We q uo t e Mr

. Dun n’ s br i ef ve rb at i m:
The app ellant [M r. Stov all] ind icated that h e first le arned of the Appel lee’ s [Mr. Dunn] alle ged failure to f

il e [an] appli cati on for pe rmiss ion t o appeal the r uli ng of [t

he] Tennes see Cour t of Criminal App ea l s t o t

he Su pr eme Co urt in Nove mber , 1 998

. Aft er fu rt her re col le ct io n an d r evi ew, an appeal to t

he Supreme Court

was notfiled o n M r. Stov all’s be half; h ow eve r, very shor tly aft er the decis ion, approximately t wo (2) days, Appellant tel ephoned App elle e and Appellee informed him of the adver se decision of the Co urt of Crim inal Ap peals, wh ich w ould hav e bee n som etim e early February of 1995. A ppellee explained to App ellant t hat the chances of pre vail ing t o [si c] the Tennessee Suprem e Court we re ve ry slim

. Appell ee advi sed Appel lant that he would be wi thdra wing as cou nsel, and would not be fil ing an appeal t o the Supreme Court. Appellee advised Appellant that he cou ld file an app eal pro se , and t hat he had thi rty da ys from the date of t he deci sion. Appell ant seemed conte nt that be st efforts were use d, and that hi s s en t en ce s wou l d r ema i n i n e ff ec t

. So met

i me later, (approximately one month), Appell ee r eceiv ed a t elephone cal l fr om M r. Cha rle s Burs on [Tennessee’s Attorney Gene r al a nd Report er] f rom the Attorney Gener al’ s off ice. Mr. Burs on informed Ap pellee that the Stov all case was pla ced on the docket. . [si c] Appellee t old Mr. Burson that he did no t thi nk that he had pet iti oned for cert iorari . Mr. Burson st ated that sometimes the cour t wo uld place these m atters b y the ir ow n m otion

. Mr. Burson asked if Appell ee wanted t o oral ly ar gue the motion. Appellee i nformed him that he would wai ve the motion. However, a fte r revi ewing t he court’s docket, t

here is no record of the Supreme Court’s deciding t he case.
The brie f cont ains no cit ati ons t o the recor d for any of these statements, and with goo d reason. Non e of these facts are in the appel lat e recor d. -7- Civil actions for violations of the federal civil rights statutes are governedby the same oneyear statute of limitationsgoverning legal ma lpractic e action s. 10 The Tennessee Supreme Court has set out the principles governing the appl ication of the “legal malpractice discovery rule” for the purpose of this statute of limitations. The cour t held tha t the disco very rul e contains two ele ments

–(1) an irremediable injury caused by the def en d ant and (2) the plaintiff’s actual or imputed knowledge that his or her injury was caused by the defendant. Carvell v. Bottoms , 900 S.W.2d 23, 28 (Tenn . 1995). M ore rec ently, the court ha s held tha

t When the caus e of

action accrues is determined by the discovery rule

. [citation omitted] Under

this rule, a cause of action accrues when the plaintiff knows or

in the exercise of reasonable ca re and diligence should know that

an injury has been sustained as a result of wrongful or tortiou s conduc t by the defendant

. Gibson v. Trant , 58 S.W.3d 103, 117 (Tenn. 2001) (quoting John Kohl & Co. v. Dearborn & Ewing , 977 S.W.2d 528, 532 (Tenn. 1998)). The same discoveryrule applies to civil actions for damages under the federal civil rights statutes. Warren v. Scott , 845 S.W.2d 780, 783 (Tenn. Ct. App. 1992).
Mr. Dunn’s a

ppellate brief de scribesat some le ngth a con

versation he purp ortedly

had with Mr. Stovall shortly after the Court of Criminal Appeals released its opinion. 11 Unfortuna tely, the affida vit Mr. Dunn s ubmitted to support hi s summary j udgment motion failsto mention t his conversation. The only relevant facts contained in Mr. Dunn’s affidavit are (1) that Mr. Dunn moved12 We express no opini on regarding the meri ts of Mr. St ovall’s clai m that he was injured by M r. Dunn’s failure

to fil e a t imely Tenn. R. App. P. 11 appli cati on. At t his sta ge of

the proceeding, we must presum e that Mr. Stovall has stat ed a clai m upon which rel ief might be gr anted. It i s not our rol e at t his point to determine whether the Tennessee Su pr eme Court would have granted Mr. Stoval l’s applicat ion had it

been fil ed or whet her the c ourt woul d have overturned the deni al of his post -convi cti on peti ti on. 13 The Court of

Crimina l Appeal s se nds a copy of it s opi nions to the attorney s of record , not to the priso ners. Th us, w hen the Jan uary 5, 19 95 o pinio n w as relea sed, it w ould hav e bee n sen t to M r. Du nn, n ot to M r. Stov all. -8- his office after th e August 1 8, 1993 pos t-conviction hear ing, (2) t hat Mr. St

ovall’ s file “remained archived with my former law partner, Gene Hallworth a t21 Public Square, Columbia, TN 38401,” and (3) “I did not have any of Mr. Stovall’s file.”
In contrast, Mr. Stovall’s affidavit opposing Mr. Dun n’s motion for summary judgment contains the following statem ents: (1) “Mr. Dun

n never informed

affian t o f t he Appeal Court’s opinion;”(2) Mr. Dunn “nev er withdr ew from r

eprese nting aff iant i n com pliance

with Supre

me CourtRule 14;” (3) “[t]hat affiant made several requests to Mr. Dunn attempting to learn the status of affiant’s case on appeal betwee n the periods of April 8, 1994 and November 4, 1998; including phone calls and written communications, but Mr. Dunn ignored all request [sic] for information and never responde d;” (4) “[t]hat on or about November 18, 1998, aff iant sent a letter to the Criminal Courtof Ap peals at Nas hville and made inquiry regarding the status of affiant’s appe al . . .;” (5) [t]hereafter, the Appeals Court informed affiant of the disposition of the Appealand told affiant that copies of the final opinion could be obtained from the office of my attorney; Mr. Dunn;” and (6) that “[t]he Case History Notice of affiant’s appeal from the Appe als Court in November 1998 was the first and only notice affiant received.”
Basedon the undisputed facts in Mr. Stovall’s affidavit, we find that Mr. Stovall has presented facts demonstrating (1) that he suffered an injur y, (2) that his injury was caused by Mr. Dunn, (3) that h

e did not know he had

sustaine d an injur

y unti l November 1998, and (4) that he should not necessarily have known that he had sustained an injury prior to Nove mber 1998 . T he injury is the failure to file a timely application for permission to appeal from the J anua ry 5, 1995 Courtof Criminal Appeals opinion. 12 This injury was attributable to Mr. Dunn because, as far as this record shows, Mr . Dunn wa s stil l representing Mr. Stovall at the time. No evidence refutes Mr. Stovall’s assertion that

h e did not le arn of th

e judgmen

t of the Cou

rt of Criminal Appe als until November

1998. 13 Finally, there is no f actual basis for concluding that Mr. Stovall should have learned earlier that

the Court o f Criminal

Appealshad aff

irmed the dismissal o f his post-conviction petition because

there isno evidence that prior to February 6, 1995, Mr. Stovall knew or should have known that

Mr. Dunn hadwithdrawn from representing him or that he had any other me ans to learn of the action by the

Court of Cr

iminal App eals.
Because Mr. Stovall’s affidavit opposing Mr. Dunn’ s summar y judgment motion is undisputed, the trial court erred by concluding that Mr. Dunn had demonstrated that there were no genuine disputes o f materi al fact a nd that he was entit led to a ju dgment asa

matter of law bec ause Mr. Stovall’s complaint was time-barre d under T enn. Code Ann. § 28-3-104(a)(3). Accor dingly, the trial court er red by gr anting Mr . Dunn’s m

otion and d

ismissing Mr . Stovall’ s complain t.-9- V.
The judgment granting the summary judgment is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion. The costs of this appeal are tax ed to Christopher L. Dunn for which execution, if necessary, ma y issue.

_____________________________ WILLIAM C. KOCH, JR., JUDGE