### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

LARRY CHERRY, ET AL 

### . v. JOHN E. WILLIAMS, JR., ET AL 

### .

Appeal from the Circuit Court for Davidson County No. 96C-955 Barbara N. Haynes, Judge

No. M1997-00216-COA-R3-CV - Decided April 17, 2000

This appeal involves a dispute betwee n a client and his tw o lawyers regar

ding their recommendations against accepting a plaintiff’s settlemen t offer in a chancery court proceeding. After the chancellor and this court awarded his adversary damages far in excess of the settlement offers, the client filed a legal malpractice action against his lawyers in the Circuit Court for Davidson County. The two lawyers mo ved to dismis s the complaint based on the one-year statute of limitations, and the trial cour t, treating th

e motion as one for summary judgment, dismissed the complaint. The client asserts on this appeal that the limitations p eriod did not begin t

o run until this court affirmed the judg

ment in the underly

ing case and that the running of the statute of limitations should have been

tolled because the lawyers fraudulently concealed his cause of action against them while they continued to represent him. We have determined that the complaint is time barred and, therefore, af

firm the summary ju

dgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Circuit C

ourt Affirmed and Remanded

.
K OCH , J., delivered the opinion of the court, in which C ANTRELL , J. and B USSART , J. joined.

John T. Milburn Rogers, G reeneville, Ten

nesse e, for the appellants, Larry Cherry and Money Management Services, Inc.
Winston S. Evans, Nashville, Tennessee, for the appellee, John E. Williams, Jr.
Thomas C. Corts, Nas

hville, Tennesse

e, for the appell

ee, L. Anthony De

as.
OPINION

In the early 1990s, Larr

y Cher ry operated Money Management Services, Inc., a financial consulting business in Nashville. After experiencing some financial reversals, Darlene Pridemore engaged Mr. Cherry to assis

ther with her problems. Under the guise of helping Ms. Pridemore, Mr. Cherry effectively pla

ced her in econo

mic slavery by taking total control over her income. He also inveigled her out of her house at a price below market value.1 Mr. C herry an d Money Management were named plaintiffs in the legal malpractice

litigation. Because Mr. Cher ry is the sole sharehol

der of Money Mana

gement, we will re

fer to Mr. Cherry as the plaintiff in

the malpractice action for simplicity’s sake. As goes Mr. Cherry’s cla im, so goes Money Mana

gement’s claim.

-2- Ultimately, Mr. Cherry’s handling of her affairs prompte

d Ms. Pridemore to sue Mr. Cherry and Money Management Services, Inc. in the Chan cery Court for Davidson County for breach of fiduciary duty. Mr. Cherry retai ned John E. Williams , Jr. and L. Anthony Deas to represe

nt him in the litigation. As the trial date approached, Ms. Pridemore offered to settle her suit

for progressive

ly smaller amounts ranging from $25,000 to $15,000. Messrs. Williams and Deas estimated that Mr. Cherry’s a nd Mone y Management’s maximum exposure was between $20,000 and $25,000 and, accordingly, reco mmen ded against acc epting the settleme

nt offers. Mr. Che

rry followed his lawyer’s advic

e and rebuffed

Ms. Pridemore’s e

fforts to settle the

case before tr

ial.

The chancery court heard the pro of in September 1993, and in October 1993 entered a $75,000 judgment for Ms. Pridemore, representing $50,000 in compe nsatory and $25,000 in punit ive damages. Stunned by the outcome, Mr. Cherry directed Messrs. Williams and Deas to appeal the judgment to this court. On March 17, 1995, this court filed an opinion finding that Mr. Cherry had violated his fiduciary duties to Ms. Pridemore “in every way possible.” Pridemore v. Cher ry , 903 S.W.2d 705, 707 (Tenn. Ct. Ap p. 1995). Accordin gly, we affirmed

the award of $50,

000 in compensatory damages. We also found that the chancery court had set the punitive damages too low and increased the punitive damage award to $100,000. On July 3, 1993, the T ennessee Suprem

e Court denied Mr. Che

rry’s applicatio

n for permission to a

ppeal.

Mr. Cherry blamed Messrs. Williams and Deas for saddling him with an unant icipate d $150,000 judgment. On March 15, 1996, he 1 filed a legal malp ractice action

against Me ssrs

. Williams and Deas in the Circuit Court for Davidson County. Mr. Cherry’s complaint alleged that Messrs. Williams and Deas had been negligent because they failed to recogn

ize and communica

te the extent of his exposure to damages both in the trial cou rt and in this court.

He also alleged that Messrs. Williams and Deas had negligently failed to recommend settling the case when a settlement
was possible and that they had otherwise breached the standard of care in the ch anc ery court litigation and on ap

peal.

Both Mr. Williams and Mr. Deas denied that they had negligently represented Mr. Cherry and his company in the li

tigation with Ms. Pridemore. Eventually, in March 1997, Mr. Deas, joined later by Mr. Williams, moved for a Tenn. R. Civ. P. 12.03 motion for a judgment on the pleadings. They argued that any alleged negligence with r

egard to recommending against a settlement, failing to appreciate or communicate the risk of a substantial damage award, or conducting the trial occurred
more than one year before Mr. Cherry filed his malpractice action and were, therefore, barred by the one-year statute of limitations in Tenn. Code Ann. § 28-3-104(a)(2) (Supp. 1999). After considering the materials supporting and opposing the motions, the trial court treated the motions as ones for a partial summary judgment and dismissed the claims dealing withthe alleged negligence before and-3-

during the trial of

the Pridemore

case in the chancery court. Mr. Cherry voluntarily nonsuited the remainder of his

claims and appea

led to this court.

I. T HE S TANDARD OF R EVIEW The trial court appropriately converted the Tenn. R. Civ. P. 12.03 motion for judgment on the pleadings to

a motion for summary judgment because it considered matters outside the pleadings themselves. Accordingly, we begin by restating the principles for reviewing summary judgments on appeal.
Summary judgments enjoy no p resumption of cor

rectness on appe

al. See City of Tullahoma
v. Bedford County , 938 S.W.2d 408, 412 (Tenn. 1997); McClung v. Delta Square Ltd. Partnership , 937 S.W.2d 891, 894 (Tenn. 1996). Accordingly, reviewingcourts must make a fresh determination concerning whether the requirements of Tenn. R. Civ. P . 56 have been satisfied. See Hunter v. Brown , 955 S.W.2d 49, 50-51 (Tenn. 1997); Mason v. Seaton , 942 S.W.2d 470, 472 (Tenn. 1997). Summary judgments are app ropriate only whe

n there are no ge

nuine factual dis

putes with regard

to the claim or defense embodied in the motion and when the moving party is entitled to a judgment
as a matter of law. See Tenn. R. Civ. P. 56.04; Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997); Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995).

Courts reviewing summar y judgments must view

the evidence in th

e light most favora

ble to the nonmoving party and must also draw all reason

able inferences in the nonmoving party’s favor. See Robinson v. Omer , 952 S.W.2d 423, 426 (Tenn. 1997); Mike v. Po Group, Inc. , 937 S.W.2d 790, 792 (Tenn. 1996). Thus, a summary judgment should be granted only when the undisputed fa cts reasonably

support one conclusion -- that the moving party is entitled to ajudgment as a matter of law. See McCall v. Wilder , 913 S.W.2d 150, 153 (Tenn. 1995); Carvell v. Bottoms , 900 S.W.2d at 26. A party may obtain a summary judgment either by affirmatively negating an essential element of the non-moving party’s claim or by conclusively e

stablishing an aff

irmative defense

that defeats the non-moving party’s claim. See Byrd v. Hall , 847 S.W.2d 208, 215 n.5 (Tenn. 1993).
Defenses based on a statute of limitations are particularly amenable to summary judgment motions. See Creed

v. Valentine , 967 S.W.2d 325, 327 (Tenn. Ct. App. 199

7); Allied Sound, Inc.
v. Neely , 909 S.W.2d 815, 820 (Tenn. Ct. App. 1995). Most often the facts material to a statute of limitations defense are not in dispute. When the facts and the inferences re

asonably drawn from the facts are not disputed, the courts the mselves can b ring to bear the a pplicable legal p

rinciples to determine whether the moving party is entitled to a judgment as a matter of law.

II. T HE L AWYERS ’ S TATUTE OF L IMITATIONS D EFENSE

Mr

. Cherry no w attacks his form er lawyers’ sta

tute of limitations de

fense on three f

ronts. First, he argues that his malpractice c omplaint wa s timely because h e did not suffer a

legally cognizable

or actual injury until this court filed its opinion on March 17, 1995. Second, he argues that Messrs. Williams a

nd Deas fraudule

ntly concealed th

eir negligence f

rom him. Third, he argues2 For example, Harvard lawpro fessor Alan Dershowitz recently characterized Robert Bennett's failure to settle

Paula Jones's lawsuit

against President William Jefferson Clinton as "[t]he greatest legal mistake of th

e Twentieth Centur

y." The Paula

Jones suit opened the way for the grand jury questioning of

Mr. Bennett's client, and out of that grand jury appearance came an impeachment of a United States president for only the second time in our country’s history. See Alan Dershowitz, Top Ten Legal Blunder

s , G EORGE , April 1999, at 56.

-4- that the statute of limita

tions sh ould be t olled as long as Mes srs Williams and De as continued to represent him.

A.

A CCRUAL OF M R . C HERRY ’ S C AUSE OF A CTION

We begin by recognizing that statutes limiting the time for bringing lawsuits are enacted for the repose of

society and are not

disfavored. See Applewhite v. Memphis State Univ. , 495 S.W.2d 190, 195 (Tenn. 1973). As the Tennessee Supreme Court observed long ago, "The peace of society requires [that] rights shall be enforced in a reasonable time, and that they shall be barred if they are not." Peck v. Bullard

, 21 Tenn. (2 Hum.) 41, 45 (1840).
Professional malpractice actions, like other suits, are subject to a bar of limitations. Legal malpractice actions, whether grounded in contract or tort, must be commenced within one year after the cause of action's accrual. See Tenn. Code Ann. §§ 28-3-104(a)(2). The question then bec

omes, when does the cause of action accrue. As a general rule, a cause of action for an injury accrues when the injury occurs, see Whaley v. Catlett , 103 Tenn. 347, 355, 53 S.W. 131, 133 (1899), an "injury" being understood as any wrong or damage done to

another's person, rights, reputation, or property. See Vance v. Schulder , 547 S.W.2d 927, 932 (Tenn. 1977). Once an injury occurs, a cause of action
accrues to the person injured, and, subject to severa l wel l-known exceptions, the time for filing a lawsuit to redress that injury starts running right then.

In legal malpractice actions, the one-year statute of limitations starts to run when the client suffers a legally cognizable injury resulting from an attorney's negligence or other wrongdoing, and the client knows or should know the facts sufficient to give notice of that injury. See John Kohl& Co., P.C. v. Dearborn & Ewing , 977 S.W.2d 528, 532 (Te nn. 1998); Carvell

v. Bottoms , 900 S.W.2d at 29; Bradson Mercantile, Inc. v. Crabtree , 1 S.W.3d 648, 653 (Tenn. Ct. App. 1999). Thus, our first task is to determine when Mr. Cherry suffered a “legally cognizable injury.” Determining when
a legally cogniza

ble injur y has occurred can often be accomplished without too much difficulty when the lawyer’s allege

dly negligent act o

r failure to act o

ccurs outside of l

itigation. Howeve

r, the task becomes more difficult when the lawyer's act or failure to act occurs during the course of litigation.

This court

understands from experience that a lawyer’s strategic decisions during a lawsuit may ultimately harm a client even though they appeared plausible and appropriate when they were made. 2 We also understand that, on occasion, a lawyer's handling of litigation can fa ll below the standard of

practice. However, we also know that not every miscue in the course of a law sui t3 Jerome Frank has written perspica

ciously about factors inside the process that may affect
a case. He p oints out, for example, that any particular judge hearing a case may react one way or another toward a particu

lar witness

for reasons not readily apparent even to the judge. Accordingly,
a trial judge may react favorably to one witne ss because of the witness's tone of voice and may shrink from another because of the color of his necktie. See Jerome Frank, Courts on Trial 151-55 (1949).

4 Judge Frank characterized modern litigation as a substitute for settling quarrels

by private warfare. Building on that characterization he no ted that litigation in many ways resembles the pattern of warfare wit

h lawsuit stratege

ms and tactics res

embling skirmishes a

nd battles. See id. at 7-8. In this context, we recall Von Clausewitz's observation that "[i]n war more than anywhere e

lse things do not turn out as we expect." Carl Von Clausewitz, On War 193 (Micha el M. Howard & Peter Peret trans., Princeton Univ. Press 1976).

5 Roy Grutman & Bill Thomas, Lawyers and Thieves 110 (1990).

6 Time, Inc. v. Hill

, 385 U.S. 374, 402, 87

S. Ct. 534, 549 (1967) (Douglas, J., concurring).

-5- ultimately

damages the client. Any experienced trial lawyer knows that all kinds of variables over which lawyers have little control may impact the outcome of a lawsui t and t hat these factors may
or may not be directl

y related to the su

bsta nce of

the lawsuit itself. 3 They can sometimes cause a lawsuit to su cceed despite a lawyer’s mistake

s, and conversel

y, they may cause

an otherwise flawlessly

presented case

to fail to secure a victory. 4 As experienced New York trial attorney Roy Grutman has put it, in litigation, "the outcome is the ultimate uncertainty." 5 Former United States Supreme Court Justice William O. Douglas exp ressed the same view when he wrote, "A trial is a chancy thing, no matter what safeguards are provided." 6

Not surp ri singly then, the rules governing when a person suffers legally cognizable injury from litigation malprac

tice must take into a

ccount that not eve

ry misstep leads to a

fall . Becaus e negligence without injury is not a ctionable, the le

gal malpractice

statute of limitati

ons d oes not begin to run until an attorney's negligence has actually injured the client. See Security Bank & Trust Co.
v. Fabricating, Inc. , 673 S.W.2d 860, 864 (Tenn. 198 3). And there is no injury until

there is the loss of a right, remedy, or interest or the imposition of a liability. John Kohl & Co., P.C. v. Dearborn & Ewing , 977 S.W.2d at 532. Before that time, any injury is only prospective and uncertain. See K.J.B. Inc. v. Drakulich , 811 P.2d 1305, 1306 (Nev. 1991); 2 Ronald E. Mallen & Jeffrey M. Smith, Le gal Malpractice § 21.11, at 791 (4th e d. 1996) (“Mallen

& Smith”). There is

n o legall y cognizable

injury where there exists only the mere possibility of harm. See John Kohl & Co., P.C. v. Dearborn & Ewing , 977 S.W.2d at 532. In litigation, the most e

asily identifiable

time when rights, interests, and liabilities become fixed is when a court enters judgment. A judgmen t, after all, is “an adjudication of the rights of the parties in respect to the c laim[s] involved." Ward v. Kenner , 37 S.W

. 707, 709 (Tenn. Ch. App. 1896) (defining judgmen

t). Accordingly,

most courts

have made the entry of an adverse judgment the starter pistol for the running of the statute of limitations on litigation malpractice. See Laird v. Blacker , 828 P.2d 691, 696 (Cal. 1992); Jason v. Brown , 637 So.2d 749, 752 (La. Ct. App. 1994);-6-

see als o Ty ler T. Ochoa & Andrew Wistrich, Limitation of Legal Malpractice Actions: Defining Actual Injury and the Problem of Simultaneous Litigation , 24 Sw. U. L. Rev. 1, 27-29 (1994). I t is
a court's judgment that decrees the loss of a right

or remedy or imposes a legal liability. Thus, when a judgment is enter

ed, a "legally cog

nizable injury" oc

curs.
Tennessee’s courts have previously rejected Mr. Cherry’s contention that he did not suffer
a legal ly cognizable inju

ry in the litigation w

ith Ms. Pridemore un

til this court affir

med the tr

ia l court’s judgment and increased the punitive damage award . Although a minority of American jurisdictions allow tolling of the statute of limitations pending an appeal , se e Mallen & Smith, § 21.11, at 806-10, Tennesse e does not. The pla

intiffs in a legal ma

lpractice actio

n made that e

xac t argument in Carvell v. Bottoms , and the Tennessee Supreme Court rejected i t. See Carvell v. Bottoms , 900 S.W.2d at 29. Following Carvell we have consistently rejected the argument that an a ppeal tolls the running of the statute of limitations. See Bradson Mercantile, Inc. v. Crabtree , 1 S.W.3d at 653; Wilkins v. Dodson, Parker, Shipley, Behm, & Seaborg , 995 S.W.2d 575, 580-81 (Ten n. Ct. App. 1998). We reject it again here. The statute of limitations on M r. Cherry’ s malpractice claim began to run when the trial cou

rt entered its

October 18, 1993 final order setting punitive damages.

B.

F RAUDULENT C ONCEALMENT OF THE C AUSE OF A CTION

Mr. Cherry also insists that Messrs. Williams and Deas fraudulently concealed their alleged malpractice by telling him th at the chance ry court made mista kes during the tria

l and that these mistakes were serious enough to g ive the appellate

court grounds to

reverse the $75,000 judgment
on appeal. Un derlying this argu ment is Mr. Cherry’ s confusion conce rning just what he h

ad to "discover" under the discovery rule to know that he had been damaged.

The statute of

limitations begins to

run when the client discovers, or by reasonable diligence should have discovered, the injury. See John Kohl & Co. P.C. v. Dearborn & Ewing , 977 S.W.2d at 532; Nobes v. Earhart

, 769 S.W.2d 868, 871-72 (Tenn. Ct. App. 1988). The client has a right of action against which the

statute will

run once the client knows or should have known facts indicating harm caused by the lawyer's acts or omissions. See Carvell v. Bottoms , 900 S.W.2d at 29; Smith v. Petkoff , 919 S.W.2d 595, 597 (Tenn. Ct. App. 1995).
Generally speaking, fraudulent concealment exists when a party having a duty to d is close
some fact or

facts intentional

ly hides the facts

withthe intent to mislead the other party. See Spence
v. Miles Labs., Inc. , 810 F. Supp. 952, 964 ( E.D. Tenn. 1992) (

applying Tenness

ee law ). For
co ncealment

to constitute fraud, there must be a suppression of material facts that one party w a s legally or equitably obligated to communicate. See Patten v. Standard Oil Co. , 165 Tenn. 438, 444, 55 S.W.2d 759, 761 (1933); Adolph J. Levy, Solving Statute of Limitation Problems § 6.38 (1987). Without question, an attorney's purposeful concealment from a client of facts that prevents the client from learning of

an injury can toll the statute of limitations on legal malpractice. See Nobes v. Earhart , 769 S.W.2d at 872-73; Mallen & Smith, § 21.13.-7-

To toll a statute of limitations, the concealment must involve the facts from which the client could deduce that it had a cause of action. See Soldano v. Owens- Corning Fiberglass Corp. , 696 S.W.2d 887, 889 (Tenn. 198 5); cf. , e.g. , Nobes v. Earhart , 769 S. W.2d at 870-72 (involving a lawyer's concealment of h er affair with th

e party her client was suing); Anoka Orthopaedic Assocs., P.A. v. Mutschler , 773 F. Supp. 158, 170 (D. Minn. 1991) (premising fraudulent concealment on a lawyer's untrue represe

ntations that his fir

m was performing p

romised audit

s of an E RISA plan); Brownell v. Garber , 503 N.W.2d 81, 86 (Mich. Ct. App. 1993) (holding that an issue of concealment existed where a

lawyer may have falsely represented that he had done c

ertain work whic

h, in fact, he had not done). Perhaps the classic exam ple of the type of f

raudulent conce

alment that will toll the statute of limitations is where an attorney intentionally does not inform the client about an adverse lawsuit order, wh

ich order argua

bly stemmed from the attorney's mishandling of a case. See e.g. , Fidelity Life Ins. Co . v. Best, Sharp, Tho

mas, and Gla

ss , 624 F.2d 145, 147, 149 (10th Cir. 1980); Hood v. McConemy , 53 F.R.D. 435, 446-4 7 (D. Del. 1971); but see Glad v. Gunderson , Farrar, Aldrich , 378 N.W.2d 680, 683 (S.D. 1985).

A lawyer’s rosy characterization of an order adverse to the client does not amount to fraudulent

concealment of malpractice. See Riddle v. Driebe , 265 S.E.2d 92, 95 (Ga. Ct. App. 1980). As long as the client is aware of the fact that the court has ruled against his or her rights or inter

ests, arguably due to the lawyer's mishandling of the case, then it m

atters not how cou

nsel may try to downplay or "spin" the bad result. At that point the client is aware of the fact of

injury. For statute of limitations purpose

s, that awarene

ss is not negated by t

he lawyer's assu

rances t h at the court rendering the adverse order got the law wrong. Nor does it matter that the lawyer states that he or she believes that an appellate court will reverse the adverse order. As we have pre vi ously sa

id, "[W]e do not be lieve that reliance upon erroneous legal advice can operate to toll the statute of limitations," inas much as the d iscovery rule relating to injury only applies to matters of fact unknown to a prospective plaintiff, not to matters of law. See Spar Gas, Inc. v. McCune , 908 S.W.2d 400, 404 (Tenn. Ct. App. 1995).

Mr. Cherry argues he

re that the statute

of limi tations should be tolled bec ause Messrs. Williams and Deas allege dly assured him that the trial court's $75,000 judgment would be overturned

on appeal. He asserts that his lawyers' assurances kept him from noticing that he had been injured. In Mr. Cherry's words, "I was assured by my attorneys . . . I trusted my attorneys implicitly."
Despite his professed trust in Messrs. Williams and Deas, Mr. Cherry knew the fac ts th at actually or constructively put him on notice of a legally cognizable injury. He knew that the chancery court

had entered judgment against him and Money Management for $ 75,000 in damages. While Messr s. Deas and Williams may have tried to put this loss in its most optimistic light, t h e record contains no hint thatthey attempted to hide the judgment from Mr. Cherry. Mr. Cherry’s own malpractice complaint demonstrates that he k new and understood at the time that the $75,000 judgment was untoward and unexpected bec

ause he alleges that

the news of the jud

gment left him in "a state of disbelief" based on his expectations about the outcome of the trial based on his former lawyers’ repre

sentations. Certainly, a client who is shocked into "a state of disb

elief" by a totally unexpected

adverse result is put on inquiry notice of his or her lawyer's possible mishandling of the-8-

case. The complaint in this suit even alleges that Mr. Cherry confronted Messrs. Williams and Deas about the adverse tria

l ju dgment. V iewing all the facts in the light most favorable to Mr. Cherry, there is no reasonable dispute that he knew about the adverse judgment as soon as it was filed and that he believed or suspe

cted that the untow

ard result had be

en caused by this la

wyers. Accordingly,
we do not find that Mr. Cherry and Money Management have made out a triable issue on any claim of fraudulent co

ncealment on the p

art of their attor

neys.
C. C ONTINUOUS R EPRESENTATI ON

As a final matter, Mr. Cherry argues that Messrs. Williams and Deas continued to represent him and continued to assure him that they would ultimately prevail on appeal. As Mr. Cherry now puts it, his former lawyers continued to repr

esent him in the litiga

tion with Ms. Pridemore "in hopes that their continued r

epresentation . .

. would allow the sta

tute of lim

itations to run. ” We have determined that this argument is inconsistent with the discovery rule.

Mr. Cherry’s “continuing representation” argument is similar to the “continuing treatment” doctrine formerly recognized in medical malpractice cases. In the medical malpractice context, the Tennessee Supreme Court has now held that the continuing treatment exception has been subsumed into the discovery rule. Thus, the court has stat ed that “[i ]f there is actual proof that the patient knows or reasonably should know of the injury or harm before

termination of the

medical treatme

nt, the statute of limitations is not tolled.” Stanbury v. Bacardi , 953 S.W.2d 671, 676 (Tenn. 1997).

We perceive no reason for adopting a different rule for legal malpractice cases, es pecially
now that the Tennessee Supreme Court has held that the discovery rule i n legal malpractice cases operates in essentially the same way that the discovery rule in medical ma lpractice case

s operates. CompareCarvell v. Bottoms , 900 S.W.2d at 28 (holding that discovery occurs when “the plaintiff must have known or in th

e exercise of reasonable diligence should have known that this injury was caused by [the] defendant’s negligence”) with Shadrick v. Coker , 963 S.W.2d 726, 733 (Tenn. 1998) (holding that discovery occurs when the plaintiff “discovered, or reasonably should have disco vered, (1) the occasion, the manner, and the means by which a breach of duty occurred that

produced his injuries; and (2) the identity of the defendant who breached the duty").

In the context of a legal malpractice claim, we now hold that

a litigant who learns that it has suffered a cognizable legalinjury and that this injury was caused by the negligence of its lawyer but who nevertheless continues to be represented by that lawyer will be forever barred from bringing suit against the lawyer unles s it

files suit within one

year after the

discovery of the i

njury and its

cause. Applying the principle to this case, we find that Mr. Cherry “discovered” his injury when the trial court filed its judgment in

October 1993 because he knew at that time (1) that the chancery court had awarded an une

xpectedly large

judgment against hi

m and (2) that this judgment resultedfrom the pre-trial and trial strategy and conduct of Messrs. W illi ams and Deas. Because the statute of limitations began to r un in October 1993 , Mr. Cherry’s suit filed in March 199 6 against Messrs. Williams and Deas was barred because it was not filed within one year of October 1993.-9- III.

We affirm the summary judgment and remand the case to the trial court for whatever

further proceedings ma y be r equired. We tax the costs of this appeal to Larry Cherry and his surety for which execution, if necessary, may issue.