# FILED May 12, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT KNOXVILLE

_______________________________________________________ ) SANDRA TANAKA a

nd , ) Blount County Circuit Court WARWICK INSULATION CO., INC. , ) No. L-1811 ) Plaintiffs/Appella

nts. )

) VS. ) C.A. No. 03A01-9710-CV-00463 ) MARTHA MEARES , ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Circuit Court of Blount County at Maryville. Honorable Dick Jerman, Jr., Judge by Interchange

W. Andrew Fox , Knoxville, Tennessee Attorney fo

r Plaintiffs/Appe

llants.
R. Franklin Norton , Geoffrey D. Kre

ssin , NORTON & LUHN, P.C., Knoxville, Tennessee Attorneys for Defendant/Appellee.

OPINION FIL

ED: REVERSED AND REMAN DED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) HIGHERS, J. : (Concurs)Plaintiffs Sandra Tanaka a nd Warwick Ins

ulatio n app eal the trial court’s order entering sum mar y j udgment in favor of Tanaka’s former attorney , Defendant/Appellee Martha Meares. We reverse the trial court’s judgment based on our conclusion tha t a ge nuine issue of material fact exists as to whe ther the Pla

intiffs ’ action against Meares is barred by the one-y ear statute of limitatio

ns applicable to le

gal malpractic

e actions.

This legal malprac

tice action aros

e out of Meares’ former representation of Tanaka in a divorce proceeding in the General Sessions Court for Blount County. In her complaint for leg al malpracticefi led February 11, 1997, Tanaka alleged that Meares’ re presentation of Tanaka in the proceedings before the General Sessions Court fell below t he applicabl e standard of care in that Meares:

A. Failed to enter exhibi ts into evidence at trial and/or failed to submit them to the court for review. B. Failed

t o present witnesse

s necessary

to show [that] the breakdown of the marriage was the fault of

[Tanaka’ s husband] , and not [Ta

naka]. C. Failed

to move to find [Tanaka’s husband] in contempt for failure to ma

ke support pay

ments. D. Failed

to move for a continuance or make objection at the trial when the Judg

e expressed his i

n tent to finish the trial by 3:30 p.m., although to finish the trial by this time [Me ares] would be unable to elicit testim

ony from witnesses nece ssary to pro

perly present . . . Tanaka’s position. E. Failed

to make proper ad

justments to

the final decree protecting [Tanaka’s] intere sts in a bank

account or [to] ensu

re [that] the Court understood th e statu s of the bank acco unt awarded to [Tanaka]. F. Fail ed to advise the Court that Warwick Insulation Co ., Inc. was not fully owned by . . . Tanaka, and had other shareholders , so that the assets of the corporation should not have been considere

d solely . . . T

anaka’s. G. Failed

to supply an expert to testify on beh alf of [Tanaka] regarding the value of real estate. H. Fail edto respond to the Judge’s request for a n e w proposal because

of his difficulty in understanding the issues, by submitting briefs , exhibits, or proposa ls. I. Failed

to pre pare a

final decree as directed by the Court.Meares responded to Tana ka’s c omplaint b y filing a motion to dismiss or, in the alternative, a motion for summary judgment in which Meares contended, inter alia , that Tanaka’s action was barred by the one-y ear statute of limitations applicable to legal malpractice actions. See T.C.A. § 28-3-104(a)(2) (Supp. 1990). Meares filed no affidavits or depositions in support of her motion for summa

ry judgment. Instead, Meares r elied upon the technical record of the divorce proceeding in t

he General Sessi

ons Court and of the

appeal to this court, certified copies of which she filed in the present action. See Watson v. Watson , No. 03A0 1-9601-G S-00039, 1 996 WL 479655 (Tenn. App. Aug. 22, 1996). The technical record of the prior divorce procee ding revealed the following se

quence of event

s:
July 22, 1994 The General S essions C ourt judge conducted

a trial in the underlying divorce action. October 17, 1994 Tanaka filed an affida

vit whereby she sought to introduce certain financial recordswh ich had not been introduced at trial. January 19, 1995 The General S essions C ourt judge entered its

memorandum opinion. May 9, 1995 The General Sessions Court jud ge entered a

fi nal divorce decree which incorporated the provisions of its memorandum opinion and which distributed the parties’ property. May 10, 1995 Meares, on behalf of Tanaka, filed a motion to alter or amend the fina

l div orce decree in which Meares rai sed certain prop ert y valuation issues. August 21, 1995 The General Sessions Courtjudge entered an

order denying the motion to alter or amend. September 15, 1995 Mear es, on behalf of Tanak a, fileda timely

notice of appeal to this court. February 28, 1996 M. Jef frey Whitt advised this court that h e was representing Tanaka in her appeal. August 21, 1997 This court filed its opi nion and judgm en t

af firm ing the final decree of the General Sessions Court.

In oppo sing Me ares’ motion for s ummary judg

ment, Tanaka file

d an affidavit in which she averr

ed that:1. I did not know durin

g t he time that Martha Meares represented me that the actions or omissions by Ms. Meares alleged in the complaint in this matter were wrongful conduct o r that these actions or omissions breached her duty to me. 2. When I questioned h er regarding

th e o utcome of the trial in Watson v. Watson and the rehearing, she blamed the Judge for the poor decision. 3. Upon either the third co nsu ltation with Jeff Whitt or sometime there after , I d iscover ed that Ms. Meares’ actions or omissions while representing me could be considered malpractice. 4. I didnot consult

with Jeff Whitt a seco

nd or third time until after I received [Meares’] letter of February 12, 1996. 5. To my best

knowledge, I met

with Martha Meares on February 14, [1996] to get the files to del iver to Jeff Whitt for our second consultation.

The February 12, 1996, letter referenced in Tanaka’s affidavit was a letter from Meares informing Tanaka that her appellate brief

was due in this court on February 27, 1996. Taking the position that she didnot discover Meares’ malpractice until after receipt of the February 12, 1996, letter, Tanaka contended

that the present legal malpractice complaint, filed February 11, 1997, was timel y fi led.

Based on the foregoing evidence, the trial court granted

Meares’ motion for summary judgment,ruling that, as a matter of law, the

statute of limitation s had expired and th e Plaintiffs’ action for legal malpractice was time-barred. This appeal followed.

Summary ju dg ment is appropria

te only when

the parties’ “ple

adings, depositio

ns,
answers to interrogator

ies, and admissions on fi

le, together wi

th the affidavits,

if any, show that there is no genuine issue as to any material fact and that the moving par ty is entitled to a

jud gment as a matter of law.” T.R.C.P. 56 .04. In deter mining whether o

r not a genuine i

ssue of material f

act exists for purposes of summar

y judgment,

the trial court is r

equired to conside

r the question in

the same
manner as a motion for directed verdict made at the close of the plaintiff’s proof. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). That is, “the trial court must take the strongest legitimate view of the evidence in

favor of the nonmo

ving party

, allow all reason

able inf eren ces i n fav or o f th at p art y, and discard all countervailing evidence.” Id . at 210-11.

Our supreme court ha

s developed a specific formulation of the “discovery rule”applicable to the issue of

when a legal malpractice action accrues for statute of limitatio

ns purposes. See Carvel

l v. Bot toms , 900 S.W.2d 23 (Tenn. 1995); Chambers v. Dillow , 713 S.W.2d 896 (Tenn. 1986); Security Bank & Trust Co. v. Fabricating, Inc. , 673 S.W.2d 860 (Tenn. 1983), cert. denied , 469 U.S. 1038 (1984); Ameraccount Club, Inc. v . Hill , 617 S.W.2d 876 (Tenn. 1981). In the most recent of these decisions, the supreme court concluded that the “legal malpractice discovery rule” is c omposed of two distinct elements: (1) the plaintiff must have suffered a legally cog nizable o r actual injury as a result of the defendant’s negligence; and (2) the plaintiff either must have known
or in the exercise of

reasonable

diligen ce should have known that the injury was caused by the defendant’s negligence. Carvel l v. Bot toms , 900 S.W.2d at 28.

For purposes of

these summary

judgment proceedings, we conclude that, if Tanaka suffered a legally cognizable

injur y, such injury occurred, a t the latest, by August 21, 1995, when the General S ession Court judge entered its final judgment in the underlying divorce a ction. See Rayford v. Leffler , 953 S.W.2d 204, 207-0 8 (Tenn. App. 1997) (concluding th at inmate suffered legally cognizable injur

y upon denia

l o f po st-conviction motion or, at the latest, upon denial of motion for reco nsi dera tio n). Acco rdi ngly, we agree that the dispositive issue pr

esented by

this case relates to the second pron g of the discove

ry rule and

may be state

d thusly: w

heth er Tanaka knew
or in the exercise of reasonable diligence should have known more than one y

ear prior to filin

g this lawsuit that her injury was caused by Me ares’ negligence.

In discussin g this secon d element, the supreme court has indicated that the “knowledge” component of the discovery rule m ay be suppo rted by evidence of actual or constructive knowledge of the injury. Carvell v. Bottoms , 900 S.W.2d at 29. As a general rule, the
on e- year statute of limitations for legal malpractice actions begins to run when the plaintiff has actual knowledge that he has been injured as a result of the defendant’s breac h of the approp riate legal standard. Id . Under

the theory of constructive knowledge, however, the statute of limitations may begin to run at an earlier

date if the evide

nce shows that the

plaintiff is awar

e of facts suffic

ient to puta rea son abl e per son on n oti ce t hat he h as s uff ered an i nju ry a s a result of the defendant’s wrongful conduct. Id
.

In articulating thi

s theor y of constructive knowledge, the supreme court and this courthave stressed that the plaintiff’s knowledge need not rise to the level of an actual awareness that her injury constituted a breach of the appropriate legal standard. Instead, it is sufficient if the plaintiff knows or in the exercise of reasonable care and diligenc e should kn ow that she has sustained an injury as a result of the defendant’s wrongful or tortious conduct. Carvel l v. Bot toms , 900 S.W.2d at 29 (citing Roe v. Jefferson , 875 S.W.2d 653, 657 ( Tenn. 199 4)); accord Smith v. Petkoff , 919 S.W.2d 595, 597 (Tenn. Ap p. 1995); Hayes v. Cowan , No. 01A01-9503-C V-00102, 1995 WL 458987, at *3 (Tenn. App. A ug. 4, 1995). I

n the context of summa

ry judgmen

t p roce edings, this court also has recognized that

qu esti ons involving whether a person’s behavior conforms to a standardof reasonable and diligent conduct, such

as the second part of the mal prac tic e di sco very r ule tes t, a re qu est ion s of fact for a ju ry, unless the facts and the inferencesdrawn therefrom are so clear that reasonable persons could not disagree on the answer.

Porter-Metler

v. Edwards , No. 03A01-9709-CV-00393, 1998 WL 131515, at *3 (Tenn . App
. Mar. 25, 1998).

After carefully reviewing the evidence pre sentedin this c ase, we conclud e that a genuineissue of material fact exists as t

o w hether Tanaka knew or should have known more than
one year p rio r to fil ing t his lega l ma lpr act ice act ion tha t sh e had suf fere d an inj ury a s a result o f Meares’ wrongful conduct. When viewed in the l ight most favorable to Tanaka, this evidence reveals that Tanaka did not know during Meares’ representation of her that Meares had performed any actions or omissions which constituted wrongful conduct. Although Tanaka concedes that she
was present during the divorce proceedings in the Gene ral Sessi ons Court, the record contains no evidence that Tanaka either understood or should have understood the wrongful or tortious nature of the alleged actions or omissions by Meares. Stated another way, the record contains no evidence to indicate why a l ay person such as Tanaka would have questioned Meare s’ trial performance. Moreover, Tanaka was not put on notice of any wrongful conduct by the Ge neral Sessions Court judge’s su b sequent judgmen t because, when

Tanaka questione

d Meares about the

unfavorable outcome, Meares blamed the judge for making a poor decision. Tanaka did not learn that Meares’ trial performance c

onstituted possible l

egal malpract

ice until she retained another attor ney to represent her on appeal. U

nder these circ

umstances, a ge

nuine issue of mate

rial fact remai

ns as towhether

Tanaka knew, or i n the exercise of r easonable dilig

ence should have

known, prior to February 12, 1996, that she ha

d been injured as

a result of Mear

es’ wrongful or

tortious conduct.

We believe that our c

onclusion is

supported by this court’s recent decision in PorterMetler v. Edwards , No. 03A01-9709-CV-00393, 1998 WL 131515 (Tenn. App. Mar. 25, 1998). In that case, the plaintiff

filed a leg al malpractice action against her former attorney in which she
a lleged that the attorney

had failed to prop

erly reissu

e summons or timely

refile the plain

tiff’ s negligence

suit, thus allowing

her claim to

become time

barred. Porter-Metler , 1998 WL 131515, at *1. In opposing

the attorney ’s subsequent motio n for summary

judgment,the plaintiff testified that she was not aware that her case had been dismissed until her attorney sent her a

letter advising her that the action ha

d been dismissed an

d that he could

proceed no further on

her claim. Id ., at *2. The attorney apparently counte red by arguing that the plaintiff either knew or should have known of the dismissal because he previously had informed the plaintiff that a motion to d ism iss was pending in the underlying lawsuit. Id ., at **3-4. The plaint iff , however, testified that, when she questionedthe attorney about the pending motion to dismiss, the attorney assured her that every thing
was alright and that shedid not have to appear at the motion hearing. Id . In light of thi s te sti mon y,
we reversed the trial cour t’s summa

ry judgment entered in favor of the attorney
. Id ., at *4. We reasoned that

To dismiss this action on summary judg

ment would

be tantamount to holding that a lay person, exercising due diligence, should have immediately

mi s trusted her attorney and began an independent investigatio

n o f his actions, desp

ite his assurance

s that all was well withher case. We think that reasonable minds could differ

on this issue, and, there

fore, a genuin

e issue of fact e

xists.

Id
.

We similarly think that reasonable minds could differ on whether Tanaka exercised due dili gence i n thi s case . In the absence of evidence that Tanaka either knew or should have known that Mea res’ tria l performance was deficient, and in light of the evidence that, when questioned about the outcome of the

trial, Meares bla

med the unfavora

ble outcome

on the judge’s poor

decision,
we are unable to conclude as a matter of law that a reasonable and diligent pe rson in Tan aka’sposition should have known that she had

suffered injury

as a result of Mea

res’ wrongful

conduct.

In urg ing this court to uphold the summary judgment entered in her favor, Meare s cites Spar Gas, Inc. v. McCune , 908 S.W.2d 400 (Tenn. App. 1995), for the proposition that, once
a plaintiff is a

ware of a judgment against her arising out of the trial of the case, she is on notice sufficient for the running

of the statute of li

mi tation s. In Spar Gas , however, this co urt dealt primarily wi th the first prong of the discovery

rule, that of whe

n the plaintiffs suf

fered a lega

lly cognizable

injury, which is not an issue in the present case. Spar Gas , 908 S.W.2d at 403-04. Unlike the present case, there wasevidence in Spar Gas that the plaintiffs had actualknowledge of the defendants’ alleged

malpractice more than one year prior to filing their legal malpractice action. Id
. at 402. Specifically, there was evidence that one of the plaintiffs verba lly had accused one of the defendant att orn eys of “malpractice and incompetence.” Id . Moreover, the same plaintiff wrote a letter to the defendant attorney refusing to pay any legal bills which

were due to “mishandling on the lawyers’ part” or “mistakes.” Id . No such eviden ce exist s in the present ca se to support Mear

es’ contention that Tanaka eithe r knew or should

have known of Meares’ alleged negligence more than one year p

rior to filing this

lawsuit.

The trial court’s order

granting Meares’ motion for summary judgment is reversed, andthis cause is remanded for further proceedings c

onsistent with this op

inion. Costsof this appeal are t axe d to Mear es, for whi ch ex ecut ion may i ssu e ifnece ssa ry.

____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIGHERS, J. (Conc

urs)