FILED

April 30, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

 IN THE COURT OF APPEALS WESTERN DIVISION OF TENNESSEE

AT JACKSON

JERRY CUNNINGHAM, ) C/A NO. 02A01-9712-CV-00299

)

Plaintiff-Appellant, ) SHELBY CIRCUIT

)

v. ) HON. DICK W. JERMAN, JR.,

) JUDGE - BY INTERCHANGE

BAKER DONELSON, BEARMAN, )

& CALDWELL, P.C., ) AFFIRMED

) AND

Defendant-Appellee. ) REMANDED

JERRY CUNNINGHAM, pro se.

ARNOLD GOLDIN, Memphis, for Defendant-Appellee.

O P I N I O N

Franks, J.

This legal malpractice action was filed on January 29, 1997, and the

Trial Court, responding to a motion to dismiss, dismissed the action as being barred by

the statute of limitations. Plaintiff has appealed.

The gravamen of plaintiff’s complaint is as follows:

On or about September 24, 1991, Plaintiff obtained the services of the

Defendant to represent himself and his closely held corporation in the

Chancery Court lawsuit of M & M Instant Package Delivery versus

Southland Courier Corporation, VIP Express, Inc. And Jerry

Cunningham. When first presented with the case Plaintiff was already
2

the subject of an injunc tion which prohibited the sale or transfer of his

business and upon which the bond or surety posted by Plaintiff was

$500.00. The injunction was improper as Plaintiff in that suit had no

property interest in the Defendant’s business and ultimately, in the

litigation, Defendant received back this $500.00 as sanction against the

Plaintiff. Defendant’s counsel, Michael Richards, failed to object to the

injunction, the bond for the injunction, and to adequately advise and

apprise your plaintiff herein.

The record establishes tha t the attorney of the defendant firm

representing plaintiff me t with plaintiff on September 25, 1991, regarding the lawsuit

which had been filed against plaintiff on September 23, 1991. The plaintiff in that

case had obtained a temporary restraining order prohibiting Cunningham from

transferring any contract rights that he had as a result of his purchase of the plaintiff’s

assets in 1990. Negotiations with that plaintiff’s attorney ensued, and an agreement

was reached whereby plaintiff would non-suit defendant VIP from that action and the

application for a preliminary injunction would not go forward. The restraining order

expired by its terms on Oc tober 7, 1991. 

Cunningham filed an affidavit in response to the motion to dismiss

wherein he states in pe rtinent part:

2. On September 23, 1991 SCC was served with a TRO issued in

Chancery Court, Division II, which temporarily restrained the

conveyance of certain assets to VIP Express, Inc., which was also

restrained by the court. These assets included those which were

acquired in August 1990 through a contractual acquisition whereby SCC

purchased them from M&M Instant Delive ry Company.

3. As procedures for merging SCC and VIP Express had already begun

and the SCC drivers and other employees had been previously notified

in a staff meeting attended by VIP officers that Friday, September 28,

1991 would be the company’s final day of business prior to a merger of

all operations, this TRO - even though it was prescribed to expire on

October 7 - presented a serious and potentia lly damaging problem to

both companies. SCC was potentially affected by the TRO to a much

greater degree than VIP Express.

4. Immediate notice of the TRO service was made to Mr. Richards. He

conferred with counsel for VIP Express and M & M Delivery and

together they set up a meeting of all parties to take place on September

26, 1991.
3

5. This meeting was largely moderated by Mr. Richards. He devoted

most of the time to citing the various ways in which the TRO was

illegally obtained and further claimed tha t counsel for M&M Delivery

had violated professional ethics as defined in Rule 11. Counsel for VIP

Express concurred completely and later filed a brief in Chancery Court

which affirms this position. Counsel for M&M Delivery was not

persuaded by these arguments. 

. . .

7. Mr. Richards left the city on 9/26/91 and I did not communicate with

him until his return the following week after which I had already abided

by the terms set forth in the TRO and had also followed the instructions

of William Fones, in whose care I was placed, to turn over all assets of

M&M prior to the close of business on 9/28/91. I followed all of these

orders.

8. No efforts were made by Baker-Donelson other than those stated

above to terminate the TRO or to mitigate potential damages by asking

the court for an increase in the $500 posted bond.

9. The TRO did not allow me to perform as called for in the agreement

between SCC and VIP Express. There were other compounding and

exponentially damaging problems which were also set into motion as a

result of the TRO. A re-negotiated settlement was finally agreed to and

executed some three months later. All the corporation’s cash flow and

the money which was to have been paid in September, October and

November as per the original agreement was totally cut off. Serious

financial problems arose as a result.

10. Bake r-Donelson filed a counter-suit aga inst M&M De livery in

December of ‘91 citing the illegality of the TRO.

Defendant law firm withdrew from representing plaintiff herein, when plaintiff filed a

Chapter 7 bankruptcy in February 1992, and pla intiff then hired other counsel to

represent him in the action brought by M&M Delive ry. 

The plaintiff concludes his affidavit by stating that he was not aware

that defendant “might be culpable of legal malpractice until a meeting in the office of

the Chief Disciplinary Counsel for the Board of Responsibility on February 4, 1996",

and he contends that the statute of limitations began to run in this case on that date.

In reviewing the grant of summary judgment, we review the evidence in

the light most favorable to plaintiff, drawing all reasonable inferences in his favor and

disrega rd all countervailing evidence. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.
1

Carvell elaborated on irreparable injury as follows:

[w]e can no longer even approve of the usage of the adjective “irremedial” in this context. 

This term, which was first used in pure dicta by the Ameraccount court has caused confusion

from its inception, and serves no useful purpose. Therefore, to avoid further confusion, we

conclude that henceforth the term “legal cognizable injury” or “actual injury” should be used

in this context. Id. 29-30.

4

1993). If there is a disputed issue of material fact we are required to vacate the

summary judgment and remand for tria l. Rule 56, T.R.C.P. 

The statute of limitations in this case has run on plaintiff’s action unless

the “discovery rule” is applicable. The discovery rule is described in Carvell v.

Bottoms, 900 S.W.2d 23 at 28 (Tenn. 1995), where the Court said:

[t]he “legal malpractice discovery rule” is composed of two distinct

elements:

(1) the plaintiff must suffer, pursuant to the Ameraccount dicta, an

“irremediable injury”1

 as a result of the defendant’s negligence, and (2)

the plaintiff must have known or in the exercise of reasonable diligence

should have known that this injury was caused by defendant’s

negligence.

The record demonstrates that plaintiff was aware of a “legally cognizable injury” or

“actual injury” at the time the restraining order was served upon him. Plaintiff’s

affidavit in the record made on January 25, 1995, detailed the manner in which he was

damaged as a result of the restraining order. Plaintiff’s other affidavit reveals that he

was made aware at the meeting on September 26, 1991 that according to his lawyer

the TRO was illegally obtained, and he was apprised of the procedure followed by his

counsel in allowing the TRO to expire under the rules of court. He was also aware

that only a $500 bond had been made at the time the TRO was issued. Moreover, he

knew that his attorney did not ask for an increase in the bond, nor was any formal

effort made to lift the temporary restraining order. In sum, the plaintiff was aware that

he had be en damaged by the issuance of an improper restraining order, and his

attorney who advised plaintiff at that time that the TRO was illegally obtained, did not

take procedural steps to have the order rescinded, the issuance of the TRO being,
5

according to plaintiff, the cause of his damages.

Accordingly, we conclude that plaintiff actually knew in September

1991, as evidenced by his admissions that he had been injured by a TRO which was

illegally obtained and that his lawyer took no steps to increase the bond or seek to

have the order lifted. We therefore affirm the judgment of the Trial Court because

there are no material facts in the record to bring this action within the “legal

malpractice discovery rule.” See Car vell.

The costs of the appeal are assess ed to appe llant.

__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Don T. McMurray, J.

___________________________

Charles D. Susano, Jr., J.