# FILED April 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS WESTERN DIVISI ON OF TENNESSEE AT JACKSO N

JER RY CUN NING HAM, ) C/A NO. 02A01-9712-CV-00299 ) Plaintiff-A ppellant, ) SHELB Y CIRC UIT ) v. ) HON . DICK W. JE RM AN, J R., ) JUDGE -

BY INTERCHANGE BAKER DONELSON, BEARMAN, ) & CA LDW ELL , P.C., ) AFFIRMED ) AND Defendant-Appellee. ) REMANDED

JERR Y CU NNIN GHA M, pro se. ARNOLD GOLDIN, Mem phis, for Defendant- Appellee.

O P I N I

O N
Franks, J. This legal malpr

actice acti

on was filed on January 29, 1997, and the Trial Court, r

esponding to a motion t o dismiss, di smissed the act ion as being barred by the statut e of limitat

ions. Plaint

iff has appealed. The gravamen of plaintiff’s complaint is as follows: On or about September 24, 1991, Plaintiff obt ained the servi

ces of the Defendant to represent

himself and his cl

osely held c orporation i n the Chancery Court lawsui

t of M & M Instant Package Delivery ve rsus Southland Co urier Corporation, VIP Express, Inc. And Jerry Cunningham. When first prese nted with the case Plaintiff was alr eady2 the subject o f an injunc tion which prohibited th e sale or trans fer of his business and upon which the bond or surety post

ed by Plaint

iff was $500.00. The injunct

ion was improper as Plai ntiff in that

suit had no property i

nterest i n the Defendant’s busi

ness and ultimat

ely, i n the litigat ion, Defendant recei

ved back this $500.00 as sanction against the Plaintiff. Defendant’s counsel,Michael Richards, fai led to object

to the injunction,

the bond for the inj unction, and to a dequately advi se and apprise your

plaintiff he

rein. The record establishes tha t the attorney of the defendant firm representing plaintiff me t with plaintiff on Septem ber 25, 199 1, regarding the lawsu it which had been filed agai nst plaint iff on September 23, 1991. The plaintiff i n that case had obtained a t

emporary rest

raining order pr

ohibiting Cunningham fr om transferring any contract rights that he had as a result of his purchase o f the plaintiff’s assets in 1990. Negotiations wit h that plaint

iff’s att orney ensued, and an agreement was reached whereby plai ntiff would non-suit

defendant VIP from that act ion and the applicati on for a preliminar y injunct ion would not go forward. The restraining or der 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 Se ptember 2 3, 1991 S CC w as served w ith a TRO issued in Chancery Court, Divi sion II, which t emporarily

restrained t

he conveyance of certain assets to VIP Express, Inc., which was also restrained by the court. These assets includ ed those which w ere acqui red in August

1990 t hrough a cont

ract ual a cquisiti on wher

eby S CC purc hase d the m fr om M &M Insta nt D elive ry Co mpa ny. 3. As procedures for mergi ng SCC and VIP Express had already begun and the SCC drivers and other employees had been pre viously not

ified in a staff meeti

ng attended by VIP offi cers that Fri

day, September 28, 1991 would be the company’s fi nal day of busi

ness prior t

o a merger of all operati

ons, this TRO - even though i t was prescribed t

o expire on October 7 - presente d a serious a nd potentia lly damaging problem to both companies. SCC was potenti ally affected by the TRO to a much greater degree than VIP Express. 4. Immedi ate

noti ce of the TRO ser

vice was made to

Mr. Richar

ds. He conferred with counsel

for VIP Express and M & M Delivery and together they

set up a meeting of al

l parties to take place on Sept

ember 26, 1991.3 5. This meeting was la

rgely moderat

ed by Mr. Richards. He devoted most of the time t

o citing the va

rious ways in whic

h the TRO was illegally obtained and further claimed tha t counsel for M& M Delivery had violated profession al ethics as defined in Ru le 11. Counsel for V IP Express concu rred completely and later filed a brief in C hancery Court which affirms this

position. Counsel

for M&M D elivery

was not persua ded by th ese arg umen ts.

. . . 7. Mr. Ric hards left the city on 9/26/91 and I did n ot comm unicate w ith him until his

return the fol

lowing week after which I had al ready abided by the ter

ms set forth in t

he TRO and had also followed the inst ructions of William Fones, i

n whose care I was placed, t o 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 t

hose stated above to terminat

e the TRO or to mitigate potential da

mages by asking the court for an i

ncrease in the $500 pos ted bond. 9. The TRO did not allow me to perform as ca lled for in t

he agreement between SCC and VIP Express. There were other compounding a nd exponentially damaging problems which were also set into motion as a result of the

TRO. A re-negotiated set tlement was final

ly agreed t

o and executed some three months later. All

the corporation’s cash flow and the money which was to have been pai d in September, October and November as per the origi nal agreement was tot

ally cut off. Serious financial pro blems aro se as a result. 10. Bake r-Donelso n filed a co unter-suit aga inst M& M De livery in Decemb er of

‘91 c iti ng the illega

lit y of the TRO. Defendant law firm withdrew from repr esenting plai

ntiff herein,

when plaintiff fi

led a Chapter 7 bankrup tcy in February 19 92, and pla intiff then hire d other cou nsel to represe nt him in the actio n brou ght by M &M Delive ry.

The plaintiff conclud es his affidavit by stating that he was n ot aware that defendant “might

be culpable of legal

malpractice unt

il a meeting i

n the office of the Chief Disciplinary Counsel for the Board of Responsibility on February 4, 1996", and he contends that t

he statute of l

imitations

began to run in thi s case on that dat e. In review ing the gran t of summ ary judgmen t, we review the eviden ce in the light most

favorable to pla

intiff, dr awing all reasonabl

e inferences in hi s favor and disrega rd all cou ntervail ing evid ence. Byrd v. H all , 847 S.W.2d 208, 210 (Tenn.1 Carvell elaborated on irreparable injury as follows: [w]e can no longer even approv e of the usage of the adjective “irreme dial” in this context. This term, which was first used in pure d icta by the Ameraccount

court has caused confusion from its inception, and serves no useful pur pose. Therefore, to avoid further confusion, we conclude that henceforth the term “legal cognizable injury” or “actual injury” shou ld be used in this context. Id. 29-30.

4 1993). If ther

e is a disputed issue of materi al fact we are requi red to vacate t

he

summ ary judgm ent and reman d for tria l. Rule 5 6, T.R.C .P.

The statute of limitations in t his case has run on plaintiff’s action unless the “discovery

rule” is appl

icable. The dis covery rule is described i

n Carvell v. Bott oms , 900 S.W.2d 23 at 28 (Tenn. 1995) , where the Court sai d: [t]he “legal

malpractice di scovery rul e” is composed of two dist inct elements: (1) the plai

ntiff must suffer, pursuant to t he Ameraccount dicta, an “irre med iable inju ry” 1 as a result of t he defendant’s negli

gence, and (2) the plainti

ff must have known or in the exer cise of reasonabl

e diligence should have kn own that this injury was cause d by defendant’s negligence. The record demonstrate s that plai ntiff was aware of a “legal ly cognizabl

e injury” or “actual injury” at the time the restraining order w as served upon h im. Plaintiff’s affidavit i

n the record made on January 25, 1995, detailed the manner in which he was damaged as a result of t he restraini

ng order. Plai

ntiff’s othe

r affidavit r

eveals that he was made aware at the meeting on Sept ember 26, 1991 that accor ding to his la

wyer the TRO was illegally ob tained, and h e was ap prised of th e procedu re followe d by his counsel in allowing the TRO to ex pire under the rules of co urt. He was also aw are that only a $500 bond had been made at the ti me the TRO was issued. Moreover, he knew that his att

orney did not ask for an increase in the bond, nor was any formal effort made to li

ft the temporary

restraini ng order. In sum, t

he plaintiff

was aware that he had be en dama ged by the issu ance of a n improp er restraining o rder, and his attorney who advised plainti

ff at that t

ime that the TRO was illegally obt ained, did not take procedural steps to have the or der rescinded, the issuance of t he TRO being,5

according to plaintiff, the cause of his damages.

Accordingly,we conclude that plai ntiff actual

ly knew in September 1991, as evidenced by

his admissions t

hat he had been injur

ed by a TRO which was illegally obtained a nd that his law yer took no ste ps to increas e the bond or seek to have the order lifted. We therefore affirm the judgment of the Trial Court because there are no mater

ial facts i n the record to br

ing this act

ion within the “l

egal malpractice di scovery rul e.” See Car vell. The costs of the app eal are assess ed to appe llant.

__________________________ Herschel P. Franks, J.

CONCUR:

___________________________ Don T. McM urray, J.

___________________________ Charles D. Susano, Jr., J.