# FILED
March 31, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON
EL-SHABA

ZZ RAY FORD ) a/k/a ROBERT RAYFORD, ) ) Plaintiff/Appellant, ) Shelby Circuit No. 73769 T.D. ) VS. ) A ppeal No. 02A 01-9607-CV-001 62 ) STEPHEN LEFFLER, ) ) Defendant/Appellee. )
APPEAL FROM THE CI RCUI T COUR T OF SH ELBY C OUNTY

AT MEMPHIS, TEN NESSEE THE HONORABLE D’ARMY BAILEY, JU DGE

EL-SHA BAZZ RA

YFORD, p ro se Henning, Tenness ee

SUSAN M. CLA RK BURCH, P ORTER & JO HNSON Memphis, Tennessee Attorney for Appellee

AF FIRMED

ALAN E. HIGHERS , J.

CONCUR: W. FRA NK CRA

WFORD, P.J., W.S. DAVID R. FA RMER, J.

In this lega l malp ract ice a ctio n, El Shab azz Rayford (“the Plaintiff”) filed suit against2

Stephen Leffler (“the De fendant”) for misrepresenting the claims of the Plaintiff in a habeas corpus proceed ing. The trial cour t granted the Defendant’s motion to dismiss, hol ding that the Plaintiff’s action is bar red by t he ap pli cabl e one -y ear stat ute o f lim itat ions . ThePla inti ff has appealed the judgment of the trial court, argui ng that the st atute of limitati ons does not bar his cause of acti on. For the reasons stated hereafter, we affirm thejud gmen t of the trial cour t.

FACTS

W hile serving a life sentence after a convicti on entered in 1985 foraggrav ated rape, the Plaintiff filed a pro se application for writ of habea s corpus in the United Stat es District Court for the W estern District of Tennesse e in August 1989. During th e cross-examination of Paulette Sutton, a stat e crime lab technician, Plaintif f disc overe d that the state possessed evidence of bl ood, semen and saliva collected from t he rape vic tim that had not been disclosed to the Plainti ff during his c riminal tr ial.

In December 1991, the district court de nied Plaintiff’s app lication for writ of habeas corpus. Plaintiff appealed t he district court’s deni al of relief, and theSixth Ci rcuit Cour t of Appeals re m anded Plaintiff’s case on the gr ound that the dist rict court failed to appoint counsel to represent the Plaintiff. U pon remand of Plaintiff’s case, the district cou rt appointed the Defendant t o represent the Plaintiff.
During Plaintiff’s habeas corpus proc eeding, he re quested that the Defendantmove the court for permission to have testing perf ormed on the newly discovered blood, semen and saliva

found on the rape vic

tim. On June 27, 1994, the Defendant filed a motion for order of comparison test wi th the distri ct court. In his motion, D efendant requested t hat the district court issu e an order requiri ng that a compar ison test be per formed on the Plaintiff’s blood, semen, saliv

a, and any other

appropriate t angible ev idence collec ted from the victim that is in thepossession, c ustody or control of the State.3

Upon consideration of the m otion for order of com parison test, the district co ur t requested that the Defendantsubmit a memorandum of law citing t he legal autho rities that would provide t he court w ith the authori ty to order the requested te sting. On July 2 2, 1994, the Defendant filed his memorandum of law in support of

the motion for compar ison testing
as requested by the cour t. In his memorandum, th e Defendant con tended that the district court should order the requested scient ific testing because such tests w ould support the Plaintiff’s contentions of inno cence. Although the Defendant did not cite any constitutional violatio ns made by

the state cour

t in its con viction of the Plaintiff , the Defendant stated in his memorandum a s follows:

[p]etitioner

admits that the failure of his tria l coun sel to have scientific tests p er formed on those samples and on samples obtained from the petitioner was a tactical decision w hich is not properly an issue of this

petition.

On August 15, 1994, the district court entered an order deny ing Plaint iff’s motion for
a scientific comparison test. In its order , the distri ct court indi cated thatits deni al of the Plaintiff’s motion was based, in part, on the Plaint iff’s admission that his trial counsel had made a tac tica l dec ision not t o have tests performed on the samples. On Aug ust 19, 1994, the Plaintiff filed a pro se motion for reconsideration of the court’s order denying Plaintiff’s request forcomparison testing. On Sep tember 14, 1994, the d istrict court entered an order denying Plaintiff’s pro s e motion for reconside ration of the order denying scientif ic comparison test ing.

On November 2, 1995, the Plaintiff filed t he instantaction. Plai ntiff bases this act ion
on material mis representation s made by the D efendant to the distr ict court i n his memorandum of law

supporting the motion for order of comparison test ing. Spec ific ally, Plai ntiff contends that the Def endant’s statemen t in his memoranda that Pla int iff’s trial counsel made a tactical dec ision in decidingnot to have s cientific tests performed on the blood, semen and saliv a collected from t he rape victim was in er ror. Plai ntiff asserts that neither he nor his trial counsel were aware that such s amples existed. Plainti ff further contends that as a result of the D efendant’s misrepresentation, the Pl aintiff was depr ived of allegedly crucial evidence at his heari ng on November 22, 1994, w hich result ed in the4

district court denyi ng Plainti ff’s application for habeas corpus on January 10, 1995.

The Defendant filed a motion to dismiss t he action arg uing that thePlaintiff’s acti on is barred by

the applicabl e one-year statute oflimitations . Treating D efendant’s motion to dismiss as a motion for summary j udgment, the tri al court g ranted the Defendant’ s motion holding that the present action is barred by the one-year statute of limitations.

LAW

The one i ssue before this Court is whether the trial court erred i n granting the Defendant’s motion to dismi ss based upon the on e-year statute of limitati ons contained in T.C.A. § 28-3-10 4 (1980).

The standards g overning our revi ew ofa trial court’s action on a motion to dism iss
or for summary judgment are well s ettled. Since our i nquiry involves purely

a question of law, no presumption ofcorrectness attaches to the t rial court ’s judgment, and our task is confined to reviewi ng the reco rd to dete rmin e whet her t he re quire men ts of Ten n. R. Civ. P. 12 and 56 ha ve been met. Carvell v . Botto ms , 900 S.W .2d 23, 26 (Tenn. 19 95); Cowden v. Sov ran Bank/Centr al South , 816 S.W.2d 741, 744 (Tenn. 1991); Foley v . St. Thomas Hosp. , 906 S.W.2d 448, 452 (Tenn. Ct. App. 1995) ; Brenner v. Textron Aerostructures, A Division of Textron, Inc. , 874 S.W.2d 579, 582 (Tenn . Ct. A pp. 1993). Tenn. R. Civ . P. 56.03 prov ides that summary judgment is only appropr iate where: (1) there is no genuine issue of material f act relevant to the claim or defense contained in the motion, Byrd v. Hall , 847 S.W .2d 208, 210 (Tenn . 1993); and (2) the moving party is entitled to a judgment as a matter of law on the undisputed facts. Carvell , 900 S.W.2d at 26; Anderson v. Standard Regi ster Co. , 857 S.W.2d 555, 559 (Tenn. 1993) . The moving party has the burden of provi ng that the moti on satisfies thes e requirements. Downen v. Allstate Ins. Co. , 811 S.W .2d 523, 524 (Tenn . 1991).

W hile the su mma ry judg ment procedure is not a substitut e for trial, i t goes to the5

merits of the compl aint and should not be taken lig htly. Byrd , 847 S.W.2d at 210; Jones
v. Home Indem. Ins. C o. , 651 S.W.2d 213, 214 (Tenn. 1983); Fowler v. Happy

Goodman Fami ly , 575 S.W.2d 496, 498 (Tenn. 1978); Foley , 906 S.W.2d at 452. It h as bee n repeatedly stated by t he app ell ate courts of this state tha t the purpose of a sum mary judgmentproceeding is not the finding of facts, the resolut ion of disputed factual issues or the determination of co nflicting i nferences reasonabl y to be draw n from the facts. Bella my v. Federal Ex press Corp. , 749 S.W.2d 31, 33 (Tenn

. 1988). Rather , the purpose of summary judg ment is to res olve contr olling i ssues of law

. Id

.
In eva luat ing the p ropr iety of amotion for summary judgment, we view the evidence in the light most favorable t o the nonmovingparty and dr aw all r easonabl e i nferences in the nonmoving party’s favor. B yrd , 847 S.W .2d at 210-11. A motion for summary judgmentshould only

be granted w hen both the facts and t he conclusions drawn from the facts permit a reasonable person to reach only one conclusio n. Id

.
In a mal practice action, the plai ntiff has the burden of provin g: (1) T he recogniz ed standard of accept able professional practice in the professi on and the special ty thereof, i f any, that the defendant pract ices in the community in which he practices or in a similar co mmun ity at the time the alleg ed injury or wrongful action occurr

ed; (2) That the defendant a cted with less than or failed to act w ith ordinaryand reasonable care in accor dance with such standard; and (3) As a proximate result of the def endant’s negl igent act or omission, the plaintiff suffered inj uries w hich woul d not otherwis e have occur red. T.C.A. § 29-26-115 (198 0).

As set forth in T.C. A. §28-3-104 ( 1980) and T.C.A. §29- 26-116( a)(1 ) (1980), the statute of l imitations for malpractice actions is o ne year. H owever , in the eve nt that the alleged injury

is not discovered w ithin the stat ed one-year period, the l imitationsperiod is
one year from the date from which the plaintiff discovers his or her injury . T.C.A. §29-26- 116(a)(1) (1980). The determination of when a leg al malpracti ce cause of action accrues forstatute of li mita tion s pur pose s is, t here for e, gove rned by a specific formulat ion of the “discovery rul e” applicabl e to such acti ons. Carvell , 900 S.W.2d at 26.6

In legal malpr

actice cases , the discovery rul e is composed of two distinct elements: (1) the plaintiff must suffer an injury as a result of the defendant’s negl igence; and ( 2) the plai ntiff must have know n or in t he exerc ise o f rea sona ble d ilige nce s hou ld ha ve kno wn that this injurywas caused by t he defendant’s negl igence. Carvell , 900 S.W.2d at 28; See also , Chambers v. Dillow , 713 S.W.2d 896 (Tenn. 1986); Secu rity Ba nk & T rust Co. v. Fabricat ing, Inc. , 673 S.W .2d 860 (T en n. 1983); Ameraccount Club, Inc. v. Hill , 617 S.W.2d 876 (Tenn. 1981); Cale don ia Le asin g & Equ ip. Co . v. Armstrong, Allen, Braden, Goodman, McBride & Prewitt , 865 S.W .2d 10, 13 (Tenn. Ct. Ap p. 1992); Ba tche lor v. Heiskell, Donelson, Bearman, Adams, W illiams & Kirsch , 828 S.W.2d 388, 393 (Tenn. Ct. App. 1991).

In the present case, the Plaintiff knew that he had been harmed by the Defendant’s alleged neglige nt action on August 15, 1994 when the district court denied Plainti ff’s motion forcomparison testing. At t his point, Pl aintiff knew that he would not

have the oppor

tunity at his habeas corpus proceeding to introdu ce as evidence the results of the testing on the newly discovered blood, semen and saliva which were found on the vic tim. At the lat est, Plaintiff’s cause of action for legal malpr

actice accr ued on September 14, 1994, when the district co u rt denied Plai ntiff’s pro se moti on for reconsider ation of the order denying comparison test ing.

Althou gh Plaintiff contends t hat he was not i njured by t he alleged neg ligence of the Defendant until Januar

y 10, 1995 w hen the d istr ict court ul timately deni ed Plaintiff’s peti tion forhabeas corpus, we disagree with Pla inti ff ’s contention. Where some injury has occurred and is know n to the plainti ff, the fact that the plaint iff is no t fully aware of the entire nature and extent of the injury will not toll the statute of limitations. Woods & W oods
v. Lewis , 902 S.W.2d 914, 916-17; (Tenn. Ct. A pp. 1994); Batchelor v. Heiskell , Donelson, Bearman, Adams, W illiams & Kirsch , 828 S.W.2d 388 (Tenn. Ct. App. 1991). A “pl aint iff cannot be permitted towait unti l he knows all of the inju rious effects as consequences of
an actiona ble wrong” before his cause of action accrue s. Chambers , 713 S.W.2d at 898; Security Bank & Trust Co. v. Fabricating, Inc. , 673 S

. W. 2d 860 (Tenn. 1983); Taylo r v.7

Clayton Mobile Homes, Inc. , 516 S.W.2d 72 (Tenn. 1974).
Thus, because Plaint iff’s cause of action accrued on Aug ust 15, 1994 w hen the district court denied Pl aintiff’s motion for comparison testing or, at the lat est, on September 14, 1994 when the district court denied Plaintiff ’s pro se motion for reconsiderat ion of the order denying comparison test ing, Plai nt iff’s ac tion is barr ed by the appl icable one-year statute of limitat ions.

The judgment of the trial court is hereby af firmed. Costs on appea l are taxed to the Plai ntif f fo r which execu tion may is sue i f ne cess ary.

HIGHERS, J.

CRAWFORD, P.J., W.S.

FARMER, J.