FILED

March 25, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

LINETTE PORTER-METLER, ) KNOX CIRCUIT

 ) C.A. NO. 03A01-9709-CV-00393

 Plaintiff-Appellant )

 )

vs. )

 )

 ) HON. HAROLD WIMBERLY

 ) JUDGE

ROBERT C. EDWARDS, )

 )

 Defendant-Appellee )

) 

) REVERSED AND REMANDED

)

DAVID DAY, Day & Birdwell, P.C., Cookeville, for Appellant.

R . FRANKLIN NORTON and GEOFFREY D. KRESSIN, Norton & Luhn, P.C.,

Knoxville, for Appellee.

O P I N I O N

McMurray, J.

This is a legal malpractice actio n. The plaintiff, Linette

Porter-Metler, hired the defendant to represent her in an

automobile accident case wherein she sued Patti Rose for injuries

resulting from the accident. The essence of plaintiff's complaint

i n this action is that the defendant failed to timely reissue
2

service of process against Rose, thereby negligently allowing her

complaint to be dismissed. Defendant filed a motion for summary

judgment, asserting that the one-yea r st atute of limitations for

legal malpractice actions had run, thereby barr ing plaintiff's

action. The trial court granted summary judgment. This appeal

resulted. We reverse the judgment of the trial court.

O n October 10, 1984, plaintiff was injured in an accident

involving a vehicle driven by Rose. She employed the defendant to

represent her in a negligence action against Rose. A complaint

against Rose was timely filed and a voluntary nonsuit was later

taken by plaintiff. A second complaint was timely filed on January

6 , 1993. Process was issued for service upon Rose but it was

returned unserved. Alias process was issued on July 1, 1993 but it

was also returned unserved on July 8, 1993. No further process was

issued and no new complaint was timely filed. 

I n March 1994, counsel for Rose, by special appearance, filed

a mo tion to dismiss on the grounds that no summons and complaint

were served on her within the applicable limit ations period and,

therefore, plaintiff's action was time-barred. The Circuit Court

for Knox County granted th e mo tion and dismissed plaintiff's

action. On June 12, 1995, plaintiff filed the present action,

alleging the defendant was guilty of malpractice by failing to
1

T.C.A. § 28-3-104(a)(2).

3

properly reissue summons or timely refile her suit, thus allowing

her claim against Rose to become time barred.

A s noted above, the trial court granted defe ndan t summary

judgment on the grounds that pla intiff's malpractice claim was

time-barred by the appl icab le one-year statute of limitations. 1

The determinative issue is: When should the plaintiff, in the

exercise of reasonable diligence, have known that she had suffered

a legally cognizable injury as a result of defendant's alleged

negligence. Under the facts of this case, we are of the opinion

that reasonable mi n d s could reach differing conclusions, and,

therefore, this case is not appropriate for summary judgment.

 

Our standard of review of a trial court's grant of summary

judgment is well-settled:

Tenn.R.Civ.P. 56.03 provides that summary judgment

i s only appropriate where: (1) there is no genuine issue

with regard to the material facts relevant to the claim

o r d efe nse 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. Anderson v. Standard Reg i s ter Co. ,857

S.W.2d 555, 559 (Tenn. 1993). The moving party has the

b u rden of proving that its motion satisfies thes e

requirements. Downen v. Allstate Ins. Co. , 811 S.W.2d

523, 524 (Tenn.1991).

The standards governing the assessment of evidence

i n the summary judgment context are also well es tab -

lished. Courts must view the evidence in the light most
4

favorable to the nonmoving party and must also draw all

reasonable inferences in the nonmoving party's favor.

Byrd , 847 S.W.2d at 210-11 . Courts should grant a

summary judgment only when both the facts and the

conclusions to be drawn from the facts permit a reasonable person to reach only one conclusion. Id.

Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995).

I n Carvell , the court discussed at length the "legal malpractice discovery rule," by which it is determined when the one-year

statute of limitations begins to run. The court noted that the

discovery rule is composed of two dist inc t elements: (1) the

plaintiff must suffer a "legally cognizable injury" as a result of

the defendant's negligence; and (2) the plaintiff must have known,

o r in the exercise of reasonable diligence should have known, that

this injury was caused by the defendant's negligence. Carvell , 900

S.W.2d at 28. 

Regardin g th e first part of the discovery rule, plaintiff

argues that she did not suffer a legally cognizable injury until

the court entered an order dismissing her underlying case. We do

not find this argument persuasive. If the issue of whether

dismissal should have been granted were less clear or open to

reasonable legal debate, t he p laintiff might have a stronger

argument. But in th is case, where service of process was not

timely reissued, it was patently clear that plaintiff's claim

against Rose had become time-barred and there was nothing that
5

could have been done to revive her action. Thus, she suffered a

legally cognizable injury at the expiration of the six-month period

within which she was allowed by the Tennessee Rules of Civil

Procedure to reissue a summ ons ag ainst Rose. See Batchelor v.

Heiskell, et al. , 828 S.W.2d 388, 393 (Tenn. App. 1991); Dukes v.

Noe , 856 S.W.2d 403, 404 (Tenn. App. 1993); Smith v. Petkoff , 919

S.W.2d 595, 597 (Tenn. App. 1995).

This is not dispositive of this appeal, however, because the

second part of the discovery rule must also be satisfied to trigger

the beginning of the statute of limitations period. Plaintiff

testified that she did not know that she had suffer ed any legal

injury, i.e. , dismissal of her case, until defendant sent her a

letter, dated June 11, 1994, advising that her action had been

dismissed and that he could proceed no further on her claim. Thus,

the question resolves into whether a reasonable and diligent person

i n plaintiff's po sition should have known that she had suffered

injury as a result of defendant's negligence before her receipt of

the letter. 

The record reveals the following facts pertinent to this

inquiry. Rose's motion to dismiss was apparently filed on March 8,

1994. Defendant sent plaintiff a letter dated May 10, 1994, which

stated in pertinent part:
6

Dear Linette:

W e have still not been able to locate Ms. Rose, but

w e issued alias process again in February to her mother's

address. That has been returned "not to be found". In

the meantime, a Motion [sic] has been filed challenging

our right to proceed alleging that we have n ot met

certain deadlines wit h regard to the issuance of alias

process. A copy of that Motion [sic] is enclosed. It is

set for hearing May 20, 1994 at 9:00 a.m. I will, of

course, appear and resist the Motion [sic]. Your

presence is not required and no testimony will be taken

but it will be open to the parties and the public.

Should you choose not to attend I will let you know what

transpires immediately after the hearing. Please call if

you have questions. 

A copy of Rose's motion to dismiss was attached to the letter. 

I n his deposition, the defendant admitted that his May 10

letter "is exceedingly neutral an d not only did I compose it in

that fashion, I composed it in that fashion after much discussion."

H e stated that he wrote the letter to his client after he consulted

with a nd so ught advice from other attorneys. When asked why the

letter "was intentionally neutral," he responded, "[t]he potential

generated by the motion was such that it was important to me that

I not breach my ethical obligation to her, not to try and persuade

her to feel one way or the other about the motion." 

Plaintiff called the defendant after receiving the letter to

find out what was go ing on with her case and the motion. She

testified in her deposition that defendant told her "it's not a big

deal" and that "[h]e expressed this is not unusual, that we've been
7

there before, I didn't have to b e t here." In her affidavit,

plaintiff reiterated that "my attorney advised me on the telephone

that this type of motion was not unusual and that I had nothing to

worry about. I w as particularly not concerned because other

motions to dismiss had been filed in my earlier case." Plaintiff

testified that due to the defendant's reassurances, she, as a lay

person, without legal training, was unconcerned and unaware of the

impending dismissal of her case. 

Tennessee courts have recognized and held t h at questions

involving whether a person's behavior conforms to a standar d o f

reasonable and diligent conduct, such as the second part of the

malpractice discovery rule test, are questions of fact for a jury,

unless the facts and the inferences drawn therefrom are so clear

that reasonable persons could not disagree on the answer. Woods &

Woods v. Lewis , 902 S.W.2d 914, 917 (Tenn. App. 1994); Caledonia

Leasing and Equipment Co., Inc. v. Armstrong, et al. , 865 S.W.2d

10, 18 (Tenn. App. 1992) ( "wheth er [plaintiff] discovered or, in

the exercise of reasonab le c are and diligence, should have

discovered an injury resulting from [defendant 's] alleged negligence is a genuine issue of material fact, making a summary

judgment disposition inappropriate."); National Mtg. Co. v.

Washington , 744 S.W.2d 574, 580 (Te nn. App. 1987) ("Whether the

plaintiff's employee should have known the legal effect of the

order ca lls for a determination of the reasonableness of the
8

employee's conduct. Whether any kind of behavior conforms to a

legal standard of reasonable conduct is a mere fact question for

the jury, and not a question of law.").

Under the facts of this case which we must accept as true for

purposes of the summary judgment, we cannot say, as a matter of

law, that the plaintiff should have discovered that she had

suffered an injury due to the defendant's negligen ce before she

received the letter advising her that her case had been dismissed.

I n this regard it is particularly important that, according to

plaintiff's testimony, she called the defendant to f ind ou t what

was happening, and received assurances that everything was all

right an d sh e did not have to show up at the motion hearing. To

dismiss this action on summary judgment would be tantamount to

holding that a lay person, e xercis ing due diligence, should have

i m mediat ely mistrusted her attorney and began an independent

investigation of his actions, despite his assurances that all was

well with her case. We think that reasonable minds could differ on

this issue, and, therefore, a genuine issue of fact exists.

W e reverse the judgment of t he tri al court granting summary

judgment in favor of the defendant and remand the case to the trial

court. Costs on appeal are assessed to the appellee.

_________________________________
9

 Don T. McMurray, Judge

CONCUR:

___________________________________

Houston M. Goddard, Presiding Judge

__________________________________

Charles D. Susano, Jr., Judge
IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

LINETTE PORTER-METLER, ) KNOX CIRCUIT

 ) C.A. NO. 03A01-9709-CV-00393

 Plaintiff-Appellant )

 )

vs. )

 )

 ) HON. HAROLD WIMBERLY

 ) JUDGE

ROBERT C. EDWARDS, )

 )

 Defendant-Appellee )

) 

) REVERSED AND REMANDED

)

JUDGMENT

This appeal came on to be heard upon the record from the

Circuit Court of Knox County, briefs and argument of counsel. Upon

consideration thereof, this Court is of the opinion that there was

reversible error in the trial court.

W e reverse the judgment of the tr ial co urt granting summary

judgment in favor of the defendant and remand the case to the trial

court. Costs on appeal are assessed to the appellee.

PER CURIAM